#### Maxon vs. Ayers.

Equity: *Action to quiet title under sea.*39, *ch.*141, *R. 8.*— When *maintainable.*

*1.*Under sec. 39, *oh.*141, R. S., one who has the legal title and possession of land may maintain an action to quiet the title against any person who sets up a claim thereto under any instrument which might throw a suspicion upon his title.

3. Thus, where land owned and possessed by plaintiff was levied upon and sold to defendant by the sheriff under an execution against a third person, and a certificate of sale delivered to defendant, who still holds it, and the duplicate filed in the usual manner: *Held,*that defendant must be regarded as *“*setting up a claim ” to the land, within the meaning of the statute, and the action will lie.

3. *Olarh v. Brahe,*3 Ohand., 353, *Gamble v. Loop*14Wis., 465, and *Moore*®. *Oord,*id., 313, distinguished.

APPEAL from tbe Circuit Court for *Waupaca*County.

Action by *Louise F. Maxon*to remove an alleged cloud upon ber title to land. Tbe complaint averis ber ownership in fee simple, and possession, since April, 1865; thé rendition and docketing of two judgments against one Nathan Maxon, in tbe circuit court for said county, in June, 1868; tbe issue of executions thereon, July 8, 1868; and proceedings by tbe sheriff in levying upon, advertising and selling said land upon said executions; tbe fact that tbe land was struck off to defendant; tbe making of duplicate certificates of such sale by tbe sheriff, as required by law; tbe filing of one of said duplicates with tbe register of deeds, and tbe delivery of tbe other to *the*de*613fendant; that defendant, by virtue of said levy and sale, etc., sets np a claim to tbe land; and that said sale and the certificate thereof so filed constitute a cloud on plaintiff’s title. Prayer, that “ this claim be removed from plaintiff’s title; ’ that said certificate of sale be set aside and held for naught; and that defendant and all persons claiming under him may be perpetually restrained from further proceedings against the land under said sale and certificate.

A demurrer to the complaint, as not stating a cause of action, was overruled; and defendant appealed.

*Smith &*Lamb, for appellant,

argued that “ a court of equity will not interfere to prevent or remove a cloud which can only be shown to be *prima fade*a good title by leaving the plaintiff’s title entirely out of view, or by suppressing a part of the recordthat “the cloud sought to be removed must be apparently good as against the plaintiff’s title, but really defective by reason of something not appearing on the record” *{Moore v. Cord,*14 Wis., 213 ; *Gamble v. Loop,*id., 465; *Wolcott v. Bobbins,*26 Conn., 236; *Meloy v. Dougherty,*16 Wis., 269); and that the same rule applies under the provisions of sec. 29, ch. 141, E. S., as hitherto construed. *Clark v. Drake,*3 Chand., 253. Counsel also referred to *Stockton v. Williams,*Walker’s Ch., 120, 129, 142, and 1 Doug., 546, decided under a similar statute of Michigan ; and as to the true use and construction of sec. 29, they cited *Dean v. Madison,*9 Wis., 402; *Knox v. Cleveland,*13 id., 245. 2. They further argued that the complaint should *set forth,*and not simply *assert,*a good title in plaintiff. *Salisbury v. Miller,*14 Mich., 160 ; Hutchinson’s Mississippi Code, p. 773, art. 16 ; *Toulmin v. Heidelberg,*32 Miss., 278 ; *Shotwell v. Laiu-ton,*30 id., 27.

*K L. Browne,*for respondent,

contended that there is a distinction between an action *to remove a cloud*upon title, and an action, under sec. 29, ch. 141, E. S., to *quiet*the title; and that the complaint here is good under the statute. *Gamble v. Loop,*14 Wis., 466.

*614Cole, *J.*

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,” *615says Mr. Justice Stoby, “ is founded on tbe true principles of equity jurisprudence, wbicb is not merely remedial, but is also preventive of injustice.” 1 Story’s Eq.’Jur., §700. Now, upon looking into tbe complaint in this case, we find tbat it is alleged tbat tbe plaintiff bas been tbe owner in fee and in possession of tbe real estate therein described, since April, 1865. Further, tbat certain judgments were obtained against one Nathan Maxon in June, 1868; tbat executions were issued upon those judgments, and tbe above named land was levied on, and sold by tbe sheriff to tbe defendant upon those executions. Also, tbat a duplicate copy of tbe certificate of sale bas been filed by tbe sheriff in tbe office of tbe register of deeds of tbe proper county, and tbat tbe other duplicate bas been delivered to tbe defendant, who now bolds tbe same. And upon these facts tbe question arises, whether the defendant is not, in tbe most unequivocal manner, “settingup a claim” to tbe plaintiff’s land, and whether tbe sheriff’s certificate of sale is not' directly calculated to throw some doubt upon her title. Tbat question, it seems to us, can only be answered in tbe affirmative. It is said, of course, tbat if tbe real estate was really and truly tbe property of tbe plaintiff, as stated in tbe complaint, then tbe sale of it upon tbe executions against Nathan Maxon was simply a void act Conceeding, for tbe purposes of tbe argument, tbat this is so, still is it possible to affirm tbat tbe defendant in causing tbe land to be sold as tbe property of another, and in bolding tbe sheriff’s certificate of sale, is not *“*setting up a cl rim” to tbe real estate, within tbe meaning of this statute? While tbat certificate of sale exists, it necessarily tends to throw some doubt upon tbe plaintiff’s title. Besides, tbe mere fact tbat a deed may be issued upon this certificate, wbicb is capable of being used as a means of vexatious litigation, will prevent tbe sale of tbe property for its full value; and in this way tbe plaintiff may be most seriously prejudiced while it remains in an uncancelled state. Moreover, tbe conduct of tbe defendant is utterly inexplicable if be does not claim some right *616under it to tbe plaintiff’s land. W ny has he taken that certificate, and why does he continue to hold it, unless he supposes that it gives him some interest in the property, or unless he intends to use it for some vexatious and improper purpose? We are quite clear in the opinion that the complaint shows that the defendant is *“*setting up a claim ” to the real estate of the plaintiff, within the meaning and intent of this provision of the statute. *Dean v. City of Madison,*9 Wis., 402; *Clark v. Drake, 3*Chandler, 253; *Moore v. Cord,*14 Wis., 213; and *Gamble v. Loop,*id., 465.

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*617demption bad tendered tbe bolder of tbe mortgage tbe principal and interest *thereafter*to become due on tbe mortgage, and asked tbat tbe defendant should be compelled to receive tbe amount tendered. Tbe court in effect beld, tbat tbe plaintiff’s right ■were not affected by tbe foreclosure suit, to wbicb sbe bad not been made a party, and tbat upon tbe facts stated in tbe complaint, there was no occasion for tbe interference, of a court of equity for her protection. In tbe opinion in tbat case Mr. Justice PAINE uses tbe language quoted by counsel in tbe present case, to tbe effect tbat a court of equity will not interfere to prevent or remove a cloud wbicb can only be shown to be *prima facie*a good title by leaving tbe plaintiff’s title entirely out of view, or by suppressing a part of tbe record; tbat tbe cloud to be removed must apparently be good against tbe plaintiff’s title, but really defective by reason of something not appearing on tbe record, otherwise a court of equity would not interfere. But it is very obvious tbat Mr. Justice Paine was not considering the scope and object of section 29, and'what facts a complaint should contain in order to state a cause of action under it.

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 *618thus to wait tbe defendant’s action in tbe matter, if proper force is given to tbis provision of our statute. We therefore think tbe demurrer to tbe complaint was properly overruled.

*By the Court.*— Tbe order of tbe circuit court is affirmed.