"The sufficiency of the petition and the character of this action are in dispute. Plaintiff in the brief styles it `a suit in equity * * * for the purpose of removing a cloud from the title to one hundred and sixty acres of land.' The substantive charges of the petition are: (1) That on and prior to September 11, 1897, plaintiff owned in fee the land in dispute, which is 160 acres of land in Pemiscot county. (2) That on September 11, 1897, the then sheriff of Pemiscot county sold said land at execution sale under tax judgment, and delivered to the purchaser thereof a tax deed which was recorded in that county, and that such deed is a cloud upon plaintiff's title. (3) That said tax deed should be canceled, set aside, and for naught held, because (a) that the sheriff failed to divide the land into subdivisions, but sold it in solido in violation of law
whilst said land was susceptible of four subdivisions, either of which would have brought more than the whole taxes, interest, and costs; (b) that said land was at date of sale worth $1,200, and had the sheriff complied with the law and sold only one subdivision plaintiff would have had left 120 acres of the value of $900; (c) that plaintiff had no knowledge of such sale or pretended sale until a few months prior to ____ day of February, 1905, at which time suit was brought for its recovery, but which suit was dismissed in November, 1905; (d) that plaintiff never directed that said land be sold in solido, but had he known of the sale he would have directed it to be sold in the smallest legal subdivisions; (e) that plaintiff has never received any of the surplus funds from the sale nor authorized any one to receive them for him; (f) that said tax deed fails to state the taxes due for the different years for which it was sold; (g) that the land in question, with accrued taxes of only $9.87 was sold to pay a judgment for $39.66, which was rendered for taxes on this and other lands, which lands, taken together, did not constitute one tract, but lie in three separate tracts; (h) that no levy was ever made prior to the sale; (i) that no special execution was ever issued by the circuit clerk authorizing the sale by the sheriff.
"The foregoing is a complete and full analysis of the petition. Following that part of the petition thus above analyzed is a paragraph offering to pay the amount of the bid at the sheriff's sale, and all taxes with interest, subsequently paid, and a further paragraph averring the nonresidence of defendant Mrs. A. Horrell. Then follows the prayer in this language: `Wherefore, plaintiff prays that said deed be canceled, set aside, and for naught held, and that the court try, ascertain, and determine the estate, title, and interest of the plaintiff and the defendants herein respectively in and to the real estate aforesaid, and for such other and further relief as to the court may seem meet, just, and proper in the premises.' Defendants' answer makes certain admissions and states their defense. The admissions are (1) that plaintiff owned the land on September 8, 1897, and that on said day it was sold for taxes, but aver that the sale was by order of court and under a special execution duly issued commanding the sheriff to sell the same or so much thereof as was necessary to discharge the state's lien for taxes; (2) admit that the land was sold under a judgment of the Pemiscot circuit court, but aver that the judgment was valid and regular, and was for past-due taxes owing to the state.
"Following these are numerous allegations going to make up the charge and defense of laches, and then follows a plea of former adjudication. After these, the defendants admit the sale, and aver that they own the land in fee simple. All other allegations of plaintiff's petition not specifically mentioned are denied. Such is, in substance, the answer. Judgment was for defendants, and plaintiff has appealed.
"The constitutive allegations in the defense of laches and former adjudication we have left to be taken with the evidence bearing thereon. These and the evidence can best be discussed in the opinion under the points made. This sufficiently states the case.
"1. The insufficiency of this petition as a bill in equity to remove cloud upon title is attacked in this court. It might be added here that not only does plaintiff call his pleading a bill in equity in the brief filed in this court, but in entitling his cause in the court below he so denominated his action. Considering the instrument to be such as plaintiff denominates it to be, how stands it as to sufficiency? In determining the sufficiency of a bill, resort may be had to the pleadings in the case, but not to the evidence. We say the pleadings in the case, because. after judgment and on attack in this court, the doctrine of aider by answer may be invoked. The petition was filed in the court nisi on April 12, 1906. There is not an allegation in the instrument which avers that plaintiff either had the equitable or legal title to this land at the date this suit was brought. The only averment is that he had the legal title September 11, 1897. If it can be said that the succeeding allegations show that on that date his legal title was changed to an equitable one or to a clouded title, by reason of the sale and accompanying circumstances yet there is no allegation that plaintiff retained this equitable or clouded title from September 11, 1897, to the date of filing his suit. We are left to infer that he had not parted therewith in all these years. If this bill states a cause of action at all it states a cause of action to remove a cloud from the title. In 17 Encyc. of Plead. and Prac. p. 278, such bill is thus defined: `A bill to remove a cloud is a bill to procure the cancellation, delivery up, or release of an instrument, incumbrance, or claim constituting a cloud on the plaintiff's title, and which may be used to injure or vex the plaintiff in the enjoyment of his title.' Of such a bill equity has inherent jurisdiction, independent of statutes. The same authority at page 279, thus speaks: `Equity has inherent original jurisdiction of bills and complaints to quiet title and to remove clouds. Indeed this is an independent head or source of equitable jurisdiction, not requiring any accompaniment of fraud, accident, mistake, trust, account or other basis. Such bills are merely an illustration of the ancient quiatimet jurisdiction exercised by courts of chancery. The jurisdiction is exercised with great caution.' One of the prerequisites of such bill is that it must allege what title or
interest the plaintiff has in the property. If such allegation is absent, the bill is demurrable. 17 Encyc. of Plead. and Prac. p. 327. This bill fails to allege that the plaintiff had any interest in the property at the time he brought his suit. It can be taken as true that he had the legal title in 1897, yet without some further averment as to the condition of the title at the institution of the suit the bill is bad. Plaintiff should aver that he had some interest at the time he invokes equity.
"The petition is bad for another and further reason. It fails to aver that the defendants had notice of the irregular or unlawful act of the sheriff. From the bill it may be deduced that the defendants are subsequent grantees of the tax sale purchaser. On this question the bill says: `Plaintiff here and now offers to pay to the defendants, William Hunter and J. A. Horrell, the amount paid by them or their grantor for said lands at said sheriff's sale, together with what taxes they have since paid on said lands, with interest thereon since the date of said pretended sale.' The use of the phrase `or their grantor' indicates that the pleader meant that they were subsequent grantees. Such is the fact in evidence, but the evidence should not be...
