Cook v. Friley

61 Miss. 1 | Miss. | 1883

Campbell, C. J.,

delivered the opinion of the court.

• The bill in this case is wanting in precision and clearness, büt it avers that complainant is the real owner of the land, and that the defendant is not, but that he asserts some claim or title thereto which may cast doubt or suspicion on the title of complainant, and that the defendant probably has a conveyance from the board of liquidating levee commissioners, which the bill proceeds to show is not available to him according to the view of the complainant, and in our opinion the bill presents a case entitling the complainant to relief. Besides the averment of title by successive conveyances ■under the United States the bill avers that the complainant has been in actual adverse possession of the land for ten years next before the filing of the bill, and although it states that the defendant “may have attempted within less than three years last past to dispossess (the tenant of complainant) and may forcibly hold the same.” It also avers that the defendant threatens to disturb the possession of complainant.

If the complainant is the real owner of the land, and the defendant either has any evidence of title thereto, or asserts any claim or pretends to have any right or title thereto, which may cast doubt or suspicion on the title of the real owner, such real owner may exhibit his bill against such person to have such evidence of title cancelled or the cloud, doubt or suspicion removed from the' title.

The statute, §1833 of the code of 1880, not only authorizes the real owner to file his bill to cancel a paper title, but also to remove the cloud, doubt or suspicion which may spring from the assertion of claim or pretense of right or title thereto by the defendant, who without any muniment of title may assert a claim or pretend to have right or title. The purpose was to give the real owner a remedy against one who asserts any claim or pretends to have any right or title to such owner’s land, in analogy to the right of action by the canon law for jactitation of marriage. The real owner is entitled to protection against jactitation of title to the disparagement of his real ownership. He may bring into court one who asserts any claim or pretends to have any right or title to his land, and require him to vindicate his claim or submit to its extinguishment by decree of the court. The defendant in such case must maintain his claim or right, or it will be disposed of by decree against him. If he disclaims all right or title, it is a mere question of costs. If he asserts a claim or right as to the land, its validity will be passed on by the court. All that the complainant need aver is that he is the real owner, and that the defendant is not, but asserts claim or pretends to some right to his land so as to cast doubt or suspicion on his title, which he seeks to have disposed of as a cloud on his title — clearing it by decree of the court. The bill before us states this, and the demurrer should have been overruled. The complainant is not required to set forth in his bill the chain of evidence by which he became the real owner of the land. It is sufficient to aver that he is such owner, and, if it is denied, • prove it. • If it is the object of the bill to cancel a particular evidence of title possessed by the defendant it should be set forth in the bill as fully and particularly as known to the pleader, but as a bill may be brought to dispose of any claim or pretense of right or title asserted or made by the defendant, it follows that it cannot be a ground for demurrer to a bill that it does not set forth the title sought to be cancelled. The complaint may be against an assertion of claim, and the defendant must set forth his claim and make it good.

Reversed and demurrer overruled.