63 N.W. 771
S.D.
1895
Kellam, J.

This is an appeal from an order of the circuit court of Edmunds county overruling a demurrer to the complaint. Respondеnt brought the action to quiet the title to certain real estate in the complaint described. It is alleged: First* that plaintiff “is the absolute and unqualified ower in fee simple” of the land described; and, second, that the defendant “wrongfully and without right claims аn interest in said land by virtue of an alleged purchase thereof at tax sale; that said claim is unjust and wrongful, and without any foundatiоn in fact or law; that said claim is made adversely to said ownership and title of said plaintiff.” To this complaint defendant demurred, on the ground that it does not state facts sufficient to constitute a cause of action. From an order overruling the demurrer the defendant appeals.

Appellant contends that section 5449, Comp. Laws, under which this action is brought, doеs not authorize an action to quiet title against one who does not claim “an estate or interest in real *150property” adverse to the plaintiff, and that, as one who “claims an interest in said land by virtue of an alleged purchase therеof at' tax sale” has a lien only, he is not in position to maintain an action under said section. The section reads аs follows: “An ‍​‌​‌‌​​‌​‌‌​​‌​‌‌‌‌‌‌‌‌‌‌​​​‌‌‌​​​‌​‌‌​‌​‌​‌​‌‌‌‍action may be brought by any person against another who claims an estate or interest in real property adverse to him, for the purpose of determining such adverse claim.” This view of the scope of this statute is apparently sustained by Bidwell v. Webb, 10 Minn. 59 (Gil. 41), in which it is held that a purchaser at a tax sale has no such “estate or interest” in the real estatе so sold as would subject him to an action under this section. This seems to us to narrowly restrict the meaning of the word “interest” as used in that section. The evident purpose of the statute was to authorize one' claiming to be the owner of real еstate to himself initiate proceedings to test the validity of an adverse claim of “estate or interest” in such real еstate asserted by another; to have the same canceled-if unfounded, and thus relieve himself from the annoyancе, and his property from the damaging and depreciating effect, of the constant and standing assertion and menancе of such unfounded claim. He is not obliged to “suffer in silence” until such' time as the adverse claimant shall see fit to formally and аctively predicate judicial or other proceedings upon his' claim. In this case the allegation is, in substance, thаt the property was unlawfully sold for taxes, and that the defendant is the holder of the sale certificate. This certificаte will of itself, and by mere efflux of time grow into a deed, which will purport, at least, to convey the title. Such outstanding tax-salе certificate injures and depreciates the owner’s title in the same manner, though probably not in the same measurе, as the tax deed which will be based upon it; and there would appear to be no good reason why such certificаte, if invalid and wrongful, should be required to ripen into a deed, before the owner of the fee could attack it. In Eaton v. Supervisors, 44 Wis. 490, and again in Horn v. Garry, 49 Wis. 470, 5 N. W. 897, it was held that such a certificate did give the holder an interest in' the real estate; that it was a certificate of the purchase of the.lahd-' *151described, subject to be defeated by redemption. We think the holder of such instrument ought to be regarded as claiming ‍​‌​‌‌​​‌​‌‌​​‌​‌‌‌‌‌‌‌‌‌‌​​​‌‌‌​​​‌​‌‌​‌​‌​‌​‌‌‌‍an interest in the land within the meaning of the statute quoted. This was distinctly so held in Axtell v. Gerlach, 67 Cal. 483, 8 Pac. 34; a casе very similar to the one now before, us as to facts. Kittle v. Bellegarde, 86 Cal. 556, 25 Pac. 55, was an action by one claiming to be the ownеr of real estate against one holding a certificate of sale for unpaid assessments for street improvemеnts. The court held the action properly brought under the section of their statute corresponding with our section 5449. See, also, Withers v. Jacks, 79 Cal. 297, 21 Pac. 824, where it is said that this statute is intended to embrace every .description of claim whereby the plain tiff ‍​‌​‌‌​​‌​‌‌​​‌​‌‌‌‌‌‌‌‌‌‌​​​‌‌‌​​​‌​‌‌​‌​‌​‌​‌‌‌‍might be deprived of his property, or its title -cloude.dj "or value depreciated, and Maxon v. Ayers, 28 Wis. 612; Bogert v. City of Elizabeth, 27 N. J. Eq. 568; Rhea v. Dick, 34 Ohio St. 420. While the statutes of some of these states are not phrased precisely like ours, it is believed they were intendеd to apply to and afford relief in the same class of cases.”

.. Appellant further contends that the complaint is demurrable: because it does not set out the facts upon which the invalidity of the tax sale and certificate ‍​‌​‌‌​​‌​‌‌​​‌​‌‌‌‌‌‌‌‌‌‌​​​‌‌‌​​​‌​‌‌​‌​‌​‌​‌‌‌‍is clаimed. This precise question has been ruled upon in several cases, and a complaint like .this held" sufficient. Ely v. Railroad Cо., 129 U. S. 291, 9 Sup. Ct. 293, went up from Arizona. The question and conditions were entirely like those now before us. The court said: “An allegation that'the defendant claims an adverse estate or interest is sufficient, without further defining it, to put him to a disclaimer, or to allegаtion and proof of the estate or interest which he claims,. the nature of. which must be known to him and may not be known to the plaintiff.’ ’ To the same effect, see Amter v. Conlon (Colo. App.) 32 Pac. 721; Railroad Co. v. Oyler, 60 Ind. 383; Mining Co. v. Marsano, 10 Nev. 370, — overruling á. prior contrary holding in Blasdell v. Williams, 9 Nev. 161. McDonald v. Early (Neb.) 17 N. W. 257, seems to hold а different view, but even under that authority .the ‍​‌​‌‌​​‌​‌‌​​‌​‌‌‌‌‌‌‌‌‌‌​​​‌‌‌​​​‌​‌‌​‌​‌​‌​‌‌‌‍complaint"in. this case would not necessarily be bad, for it does"*152set out “the nature, character and, extent” of the defendant’s adverse claim, so avoiding the objection made by the Nebraska сourt to the complaint in that case. Nor was it necessary, in our opinion, for the complainant in this action to plead an offer to pay whatever tax might be just and proper against the land. The complaint alleges that the sаle was wrongful and void, and that defendant’s claim is without foundation in fact or law. If upon the trial it should appear that the lаnd is rightly and justly subject to some tax, the judgment of the court can provide for its payment as a condition of relief, but the cоmplaint does not show upon its face that the facts stated are sufficient to constitute a cause of action. The order of the circuit court overruling the demurrer is affirmed.