28 Wis. 612 | Wis. | 1871
Tbe only question we bave to consider in tins case is, whether the matters set forth in the complaint constitute a cause of action under section 29, chapter 141, E. S. It is insisted in support of the demurrer that they do not, because, as is argued, upon the facts stated, it clearly appears there is no legal validity in the claim of the defendant, and therefore there is no ground for invoking the aid of a court of equity. It is not enough, it is said, that the complaint show some wrongful or unlawful act on the part of the defendant in respect to the real estate of the plaintiff; but it must also show in what manner the plaintff is or will be injured thereby, otherwise no cause of action exists under this statute.
The statute provides that “ any person having the possession and legal title to land, may institute an action against any other person setting up a claim thereto.” Doubtless the words “ setting up a claimf refer to some assertion of rights or interest in real estate the effect of which is necessarily to throw a doud over the title, and which claim is liable to be used, by the party asserting it, for an improper purpose, to the injury of the real estate owner. “ The manifest object of the statute seems to be, to enable a person having the legal title and possession of real estate, to remove all doubts and uncertainty in regard to his title arising from the claims of third persons, who are taking no steps to test the validity of their claims, either at law or equity, and who, by their refusal and neglect to institute proceedings for that purpose, keep the party in possession in a state of suspense.” Waikee, Chancellor, in Stockton v. Williams, Walker’s Ch. R., 126.
The remedy afforded by this provision appears to be quite analogous to that which was given by courts of equity under the general jurisdiction technically called quia timet. Those courts were accustomed to exercise their jurisdiction in favor of a party for the purpose of quieting titles by removing any instrument which might throw a suspicion or cloud upon the title. “ The jurisdiction exercised in cases of this character,”
It is insisted in the argument of the counsel for the defendant, that according to the doctrine of some of the above cases, the complaint in this case is clearly bad. We do not so understand those decisions. In Clark v. Drake, the court was called upon, under this statute, to enforce a forfeiture in favor of the party invoking its aid; and, upon well settled principles of equity, it declined to exercise its jurisdiction for that purpose, but left the party to his remedy at law. The court says that it was not the intention of this provision of the statute to give courts of equity the power to disregard the well settled rules of law governing their proceedings, and consequently hold that a court of chancery under it could not enforce a forfeiture. In Gamble v. Loop et al., the plaintiff’s title was good of record as against the judgments against Alexander Gamble; and it did not appear that the defendants had sold the plaintiff’s land upon those judgments, or were “ setting up any claim ” to the land by the wrongful acts which they were doing. The allegation in the complaint in substance was, that the plaintiffs in the judgments againt Alexander Gamble were doing all they could to dispossess the plaintiff in the suit of his interest and possession of the land, which the court say they might be doing wrongfully without setting up any claim whatever in themselves. The case of Moore v. Cord was not an action under this statute, but was in the nature of a bill to restrain a foreclosure sale, and to redeem from a mortgage. The owner of the equity of re
Tbe case of Stockton v. Williams, supra (Same Case in 1 Douglass, Mich., 546), does not seem to have any very direct application to tbe question we are now considering. In tbat case tbe complainants failed to show either legal or equitable title in themselves, wbicb was necessary to entitle them to relief. In tbe case before us tbe plaintiff alleges tbat sbe is tbe owner in fee, and is in possession, of land wbicb tbe defendant has levied upon and sold on executions running against a third person. Tbe defendant bolds one certificate of sale, while tbe other is filed in tbe office of tbe register of deeds. It well might be tbat if tbe defendant should obtain tbe sheriff’s deed, be would fail to recover possession of tbe land in an action of ejectment. But is tbe plaintiff compelled to wait for tbe commencement of such an action before sbe can test tbe validity of tbe defendant’s interest in tbe land and remove all doubts in' respect to her title ? It seems to us tbat sbe is not compelled
By the Court. — Tbe order of tbe circuit court is affirmed.