McDonald v. Early
| Decision Date | 13 November 1883 |
| Citation | 17 N.W. 257,15 Neb. 63 |
| Parties | JAMES MCDONALD ET AL., APPELLEES, v. JOHN W. EARLY, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Platte county. Heard below before GEORGE W. POST, J.
REVERSED AND REMANDED.
M Whitmoyer, for appellant.
1. Action cannot be maintained except by those holding a legal title to the land. Sec. 57, Comp. Stat., 394 The State v. S C. & P. R. R., 7 Neb. 376.
2. A lease for a term of years, or even an equitable title, is not sufficient to entitle a party to relief in an action to quiet title. Thomas v. White et al., 2 O. S., 551.
3. The petition should state facts showing the nature and invalidity of defendant's claim which constitutes a cloud upon plaintiffs' title to the land in question. If plaintiffs have anything to fear as a cloud, they should set out just what it is fully, or state the reasons why they cannot. Walls v. Grosvenner, 31 Wis. 681. Page v Kernan, 33 Wis. 320. Jenks v. Hathaway, 48 Mich. 536.
M'Allister Brothers, for appellee.
1. A tenant in possession can maintain an action to quiet his title. Craft v. Merrill, 14 N.Y. 456. Launsbury v. Purdy, 18 N.Y. 515. Parlus v. Pacific G. & S. M. Co., 35 Cal. 30. The Ohio statute under which the case of Thomas v. White et al., cited by appellant, 2 O. S., 551, was decided, was different from our statute on that subject, and the case of State v. S. C. & P. R'y Co., 7 Neb. 376, does not support the position of counsel; and especially would a lessee from the state be entitled to maintain this action. The state does not undertake to warrant and defend the title to its lessees, nor would it be policy for it to do so.
2. That the plaintiffs' petition is sufficient in its allegations as to the nature and extent of defendant's claim of right to the premises, see 2 Nash's Pleading and Practice, 1218. Estee's Pleading and Forms, 2d edition, 180-187. The allegation in the petition that the defendant has no right, title, or interest in the premises mentioned, is equivalent to an allegation that the nature of his title, if he has any, is unknown to the plaintiffs.
This is an action in the nature of an action quia timet, brought by the plaintiffs to remove a cloud from the title of their decedent to certain lands held by a leasehold estate under the state. The petition, after setting out the estate of the decedent in the lands, his possession thereof at the time of death, and their appointment as his administrators, and the possession of the premises by the plaintiffs since the death of their decedent, proceeds as follows:
(describing the land) "adverse to the plaintiffs.
with prayer for judgment, etc.
To this petition the defendant filed a general demurrer, which being overruled by the district court, the defendant refusing to further plead, a judgment was rendered for the plaintiffs, and the defendant brings the cause to this court by appeal.
The appellant makes two points why his demurrer should have been sustained.
1. The action cannot be maintained except by those holding a legal title to the land. A lease for a term of years, or even an equitable title, is not sufficient, etc.
2. The petition should state facts showing the nature and invalidity of the defendant's claim which constitutes a cloud upon the plaintiffs' title to the land in question, etc.
The provisions of the statute applicable to such cases are found in Comp. Stat., chap. 73, §§ 57-61, in the following words:
SEC. 57. That an action may be brought and prosecuted to a final decree, judgment, or order by any person or persons, whether in actual possession or not, claiming title to real estate against any person or persons who claim an adverse estate or interest therein, for the purpose of determining such estate or interest, and quieting the title to said real estate.
SEC. 59. Any person or persons having an interest in remainder or reversion in real estate, shall be entitled to all the rights and benefits of this act.
The object which the legislature had in passing the above provisions was to extend the benefit of the common law in actions of this character to persons claiming title to real property, though not in the possession thereof. Certainly that is all that was accomplished by the legislation, as a party in actual possession had the same rights before as after the passage of the statute.
The distinguishing feature of this action at common law is, that it may be prosecuted in anticipation of injury or loss, and before any has been sustained or even threatened. All that seems to have anciently been necessary was, that the plaintiff be possessed of or entitled to an estate, and the defendant was also possessed of the semblance of a right or title to the same estate, which, though imperfect and invalid as against the rights of the plaintiff, yet might, by the lapse of time, the death of living witnesses, the loss or removal of muniments of title, become the prevailing title. This estate need not necessarily be one of realty, but may consist of personal property of any description. See Story's Equity Jur., §§ 82-5, et. seq.
It may be asked, why then the necessity of legislation if at common law this remedy was so full and general? The answer is, that at common law, when out of possession of real property to which one had a right, he usually had an action at law against some person as his...
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