pay said debt or any considerable portion of it since its maturity; that foreclosure of said mortgage and sale of said property will have to be made; that said tax judgment, as against complainant, is illegal, in that it included said taxes paid by Warren, and an illegal and unconstitutional tax levied for county purposes; that Cook had notice thereof at and before the time he purchased; that the only amount legally due and unpaid for taxes, interest and penalties on said lot at the time of sale was $41.51, which sum Warren tendered to the col lector before the sale, and it was by him refused; that complainant is willing and able to pay whatever taxes, penalties and costs may be lawfully and equitably due upon said premises to Cook or into court; that nearly $3,500 of the mortgage debt is due and unpaid to complainant, and the entire property mortgaged is not worth the amount of debt and interest; that, if Cook be allowed to take said lot, complainant will lose more than one half of his said debt; prays for taking an account of legal taxes, penalties, interests and costs due and unpaid on said lot that ought in equity to be paid by complainant to Cook; that said tax judgment be declared void so far as it affects complainant's rights as mortgagee, or the title of any purchaser at a sale made under decree of foreclosure of said mortgage; that the temporary injunction heretofore granted be continued in force, and for general relief.

thereof by the appellate court, and remanding of the cause; that, since filing original bill, complainant has been compelled to foreclose said mortgage, and filed his bill for that purpose at December Term, 1886, of said circuit court, and obtained a decree against Warren at that term for the payment of the mortgage debt, and in default of the payment thereof the mortgaged premises, including this lot, were by virtue of the decree, and on February 12, 1887, by the master in chancery, offered for sale in separate parcels, and, no bid being made, the same were then offered for sale in a body, and, no one bidding as much as the debt, interest and costs, complainant was com peiled to and did buy in all of said property, and received his certificate; that no one redeemed, and complainant received his deed from the master, and is in possession of, and has title to, all the said lots; that the illegal tax sale and judgment cast a cloud on his said title to the lot in controversy. Prays said judg ment and tax sale be decreed wholly subject to the rights of complainant, and, so far as the same will have any effect as a shadow upon his title, the injunction be made perpetual, and any tax deed to be issued upon said tax sale be postponed to and be declared subject to complainant's rights in said lot, and defendants be restrained from asserting the same as against the rights of complainant, and for general relief.

remove a cloud from his title. Russell v. Deshon, 124 Mass. 344; Clouston v. Shearer, 99 Mass. 209.

In Connecticut equity will not interpose unless the property is not taxable. Seeley v. Westport, 47 Conn. 294; Whitney v. Stevens, 77 Ill. 585.

Who may maintain bill to quiet title.

If land is sold for a tax improperly assessed, the true owner, if in possession, may maintain a bill in equity against the purchaser to quiet his title. Davis v. Boston, 129 Mass. 377; 2 Desty, Taxn. 982. The owner of the equity of redemption and five sixths of a mortgage debt has an equity to enjoin the sale of lands, when advertised for sale for a tax to which it is not subject. Gonzales v. Sullivan, 16 Fla. 792.

But when the owner has parted with his equity of redemption from the tax sale, he no longer has a right of action against the purchaser. Lacroix v. Camors, 34 La. Ann. 639.

A lessor may maintain an action to enjoin where the proceedings are void. Columbus, C. & L. R. Co. v. Grant County Comrs. 65 Ind. 427.

The right to bring suit for the purpose of setting aside a tax sale and having the deed declared void may be exercised by any person who can show such an interest in the estate as would have entitled him to redeem. See Gerac v. Guilbeau, 36 La. Ann. 843; Ludeling v. McGuire, 35 La. Ann. 893; Blackwell, Tax Titles, 307.

One who has the legal title to land, though not in possession, may, independently of the Statute. maintain a suit in equity, in the nature of a bill quia timet, to remove a cloud upon his title. Smith v. Sherry, 54 Wis. 114; Pier v. Fond du Lac, 38 Wis. 470; Goodell v. Blumer, 41 Wis. 442.

The grantee, if in possession of the land, may

A trustee may make application for a removal of the cloud. Burlew v. Quarrier, 16 W. Va. 141; Rossett v. Fisher, 11 Gratt. 492; Machir v. Sehon, 14 W. Va. 783; Ambler v. Leach, 15 W. Va. 677; Johnson v. Johnson, 30 Ill. 215.

A sheriff who received from the purchaser an assignment of a half interest in and to certain lands sold by him for taxes is properly made a party defendant to a bill by the original owner of the land to set aside the tax sale. Twombly v. Kimbrough, 24 Ark. 459.

Possession sufficient.

A party who sues to remove a cloud upon his land must be in possession when he brings the suit, unless his title be an equitable one. Lawrence v. Zimpleman, 37 Ark. 643.

Under the Statute, possession alone is sufficient to maintain an action against anyone who claims an adverse estate, or interest in or lien upon premises. Barber v. Evans, 27 Minn. 93; Steele v. Fish, 2 Minn. 153; Patton v. Luther, 47 Iowa, 238; Brown v. Painter, 38 Iowa, 456; Laverty v. Sexton, 41 Iowa, 435; 2 Desty, Taxn. 983.

Where a person seeks to have a cloud removed he must have been in possession and the cloud must be with respect to something connected with his title. Marks v. Main, 2 Cent. Rep. 702, 4 Mackey,

577.

Possession is essential to the right to bring a suit in equity to quiet title to lands. A bill of peace does not generally lie in respect to lands unless the complainant is or has been in possession or there is a defect in same deed asked to be given up. Story, Eq. $ 703; Hamilton v. Cummings, 1 Johns. Ch. 517, 1 N. Y. Ch. L. ed. 229; Devonsher v. Newen

decree duly entered. This latter decree finds that Cock bought the lot at tax sale on June 8, 1883; that said sale was made by virtue of judgment and order of sale of Jefferson County Court, entered at its May Term, 1883, for taxes, interest, penalties and costs for the years 1875 to 1832, both inclusive, amounting to $228.56; that Warren was then the owner of said lot, and Miller was then interested therein as mortgagee of Warren, by virtue of a mortgage executed and delivered May 4, 1881, to secure the sum of $3,000 and interest; that, at the time of the rendition of said judgment, the mortgage debt was due and unpaid, and the mortgage lien then existed of record in favor of Miller; that Warren filed objections in said county court at its May Term, 1883, to the rendition of said tax judgment, and was heard, and as to him and his right, title and interest in said lot, said judgment is conclusive, and the sale thereunder devested him of title, but subject to his right of redemption, which right not having been exercised, said title and interest of Warren passed to Cook, and became vested in him; that Miller was not personally subject to the jurisdiction of said county court where said judgment and order of sale were entered, and said judgment is not conclusive as to him; that the taxes upon said lot for the years 1875 to 1880, both inclusive, amounting to $145.97, had been paid by Warren to the collector prior to the rendition of said judgment, and a receipt given therefor, but the collector did not mark the same as paid on the tax books; that the same were included in the sum for which said judgment was rendered and entered into, and

ham, 2 Sch. & Lef. 199; Shapley v. Rangeley, 1 Woodb. & M. 213.

If a party has neither title nor possession, he can have no relief in equity. Burton v. Le Roy, 5 Sawy. 51).

formed the larger part of the amount for which said lot was so sold; and that the tax levied upon said lot for county purposes for 1882 was unconstitutional and void, and formed part of said tax judgment, and said judgment is decreed to be void as against the interest of Miller; finds said mortgage was foreclosed and sale of mortgaged premises to Miller, the taking out of certificate and master's deed by Miller as alleged, and that he went into and is in possession of said lot as alleged; that Cook was not a party to the foreclosure suit, and the decree therein does not bind or affect his right or interest in said mortgaged property; that Cook is entitled, by virtue of said tax judgment and sale, to receive and be vested with Warren's title in said lot, but that such right should not operate as a cloud upon Miller's title and interest, and Cook should take and receive Warren's title subject to the lien of Miller's mortgage, to be enforced according to the equities of Cook and Miller existing then or arising since, as may be determined hereafter by any court having jurisdiction of the parties and subject matter; that said tax judgment is of no valid force or effect as against Miller as mortgagee, but, as to his equities and liens arising by reason of said mortgage, said judgment and the sale thereunder, and all proceedings thereunder, shall be for naught esteemed, further than to pass to Cook all Warren's title and interest in and to said lot; that Tanner, the county clerk, be relieved of the injunction, to the end that he may, upon presentation of said certificate of purchase by Cook, and of such further evidence and proofs as by the Statute

Equity will generally require a tender of the taxes due as a condition precedent to its entertaining jurisdiction. Cartwright v. McFadden, 24 Kan. 671; Knox v. Dunn, supra; Reed v. Tyler, 56 Ill. 288; Phelps v. Harding, 87 Ill. 442; Boeck v. Merriam, 10 Neb. 199; Hart v. Smith, 44 Wis. 218; Pierce v. Schutt, 20 Wis. 423; 2 Desty, Taxn. 901.

But the rule, that when a party seeks to annul a tax sale, he must tender to the purchaser the amount paid by him, does not apply when the pre

The owner, if in possession, may maintain a bill in equity to quiet his title, against the purchaser of the land at a tax sale (Davis v. Boston, 129 Mass. 377); and he will be entitled to a deed of release and to costs. Clouston v. Shearer, 99 Mass. 209; Russell v. Deshon, 124 Mass. 342; Yancy v. Hopkins, 1 Munf. 419.

The Statute of Nevada confers upon the posBessor of land a right which enables him without previous proceedings at law to draw to himself all outstanding inferior claims. Central Pac. R. Co. v. Dyer, 1 Sawy. 641.

Conditions precedent to right to relief. Where the lands of the owner were sold for taxes due thereon, a condition precedent to the right of action is payment or tender of the taxes due and paid by the holder of the tax deed. Pritchard v. Madren, 24 Kan. 486.

The action lies against the holder of a defective tax deed upon proof of tender of the amount of the legal taxes and charges (Herzog v. Gregg, 23 Kan. 726; Pritchard v. Madren, supra; Corbin v. Young, 24 Kan. 198); but without tender it does not lie against the holder of the tax certificate. Knox v. Dunn, 22 Kan. 683

forms part of a larger amount of taxes due confusedly on the property sold and other property of the former owner. Miller v. Montagne, 32 La. Ann. 1290; Weber v. Harris, Id. 1309; Blackwell, Tax Titles, 311, 312.

In Louisiana, one whose land is illegally sold for taxes need not make a tender to the purchaser, as a prerequisite to his action to recover the land. Stafford v. Twitchell, 33 La. Ann. 520, overruling Barrow v. Lapene, 30 La. Ann. 310.

A tender before suit, where the suit is in effect to nullify a tax deed, should be required in only a few cases; but the amount admitted to be due must be tendered; and this principle would, perhaps, extend to proper taxes on the property paid by the purchaser while in possession. Cartwright v. McFadden, 24 Kan. 670; Shaw v. Kirkwood, Id. 476; Corbin v. Young, Id. 198; Sapp v. Morrill, 8 Kan. 678.

It is not required in ejectment (Coe v. Farwell, 24 Kan. 566), and equity follows the law. Corbin v. Young, supra; Picquet v. Augusta City Council, 64 Ga. 516; Miller v. Montagne and Barrow v. Lapene, supra.

Where part of the taxes are legal and part illegal equity will require the legal part to be paid as a condition of granting the relief sought. Tallassee Mfg. Co. v. Spigener, 49 Ala. 262; Cheney v. Jones,

are required to authorize its issuance, execute and deliver a tax deed to Cook, in form as provided by the Statute, conveying to Cook said lot, provided he applied for said deed within one year, and permits Cook to apply for and receive said deed, but that the title to be conveyed by said deed is to be received by Cook subject to the lien of Miller's mortgage on the lot, and that Miller and Cook each pay half the costs.

Upon a second appeal to the appellate court, the decree was reversed, and the cause remanded to the circuit court, with directions to dissolve the injunction and dismiss the original, amended and supplemental bills. An appeal prosecuted by Miller brings the record to

this court.

Messrs. C. P. Knispel and C. H. Patton, for appellant:

Appellant as mortgagee had the right to pay the taxes to protect the lien of his mortgage from being cut off by the tax sale, which, if legal, overrides all other liens.

Cooley, Taxn. 2d ed. 504.

It must therefore follow that appellant has a right to complain of the attempt by appellee to cut off and destroy his valuable interest in the lot in question by means of the illegal tax proceedings shown in this record, and that the decree below was right.

Blackwell, Tax Titles, 652.

The cases deciding that the purchaser is entitled to be reimbursed all he has paid at the sale have no application to a case where the amount paid by him was not justly due from the owner.

14 Fla. 587; Everett v. Beebe, 37 Iowa, 452; Clement v. Everest, 29 Mich. 19; Bond v. Kenosha, 17 Wis. 284; Kimball v. Ballard, 19 Wis. 602; Whittaker v. Janesville, 33 Wis. 77.

Money to be brought into court. Anyone seeking to have the sale and deed set aside shall bring into court, upon commencing his action for that purpose, an amount sufficient to cover the taxes legally chargeable on the land, with the costs of the sale, and sometimes also interest on the bid, or a penalty, the same to be paid over to the purchaser in case his title is adjudged invalid. Picquet v. Augusta City Council, 64 Ga. 254; Blanton v. Ludeling, 30 La. Ann. 1232; Hickman v. Kempner, 35 Ark. 505; Miller v. Ziegler, 31 Kan. 417; Millbank v. Ostertag, 24 Kan. 462; Wilder v. Cockshutt, 25 Kan. 504; Durfee v. Murray, 7 Ill. App. 213; Peacock v. Carnes, 110 Ill. 99; Blackwell, Tax Titles,311, 314.

Statutes requiring a deposit of the purchase money with interest as a prerequisite to maintaining such suit are not unconstitutional. Craig v. Flanagin, 21 Ark. 319; Pope v. Macon, 23 Ark. 644; Coats v. Hill, 41 Ark. 149; Smith v. Smith, 19 Wis. 615; Tharp v. Hart, 2 Sneed, 569; Glass v. White, 5 Sneed, 475; Coonradt v. Myers, 31 Kan. 30; Belz v. Bird, Id. 139; Lombard v. Antioch College, 60 Wis. 459. Contra, Conway v. Cable, 37 Ill. 82; Reed v. Tyler, 56 Ill. 288: Weller v. St. Paul, 5 Minn. 95; Dunn v. Snell, 74 Me. 22; Lassitter v. Lee, 68 Ala. 287.

The money must be brought into court, or an offer made in the complaint to pay it on the granting of the relief asked. Lancaster v. Du Hadway, 97 Ind. 565.

Wilmerton v. Phillips, 103 Ill. 81.

The decree in conferring upon Cook the right to file a bill to redeem has given him a position and a privilege that he was not entitled to under the law governing tax titles.

Altes v. Hinckler, 36 Ill. 265; Cooley, Taxn. 2d ed. 476; Atkins v. Hinman, 7 Ill. 437.

A supplemental bill is proper where new matter has arisen since the filing of the original bill.

Jenkins v. International Bank, 111 Ill. 470. Equity will enjoin the collection of a tax in itself unauthorized by law.

New York & C. G. & S. Exch. v. Gleason, 10 West. Rep. 912, 121 Ill. 508; Phoenix Grain & Stock Exch. v. Gleason, 10 West. Rep. 927, 121 Ill. 527; Keigwin v. Drainage Comrs. 2 West. Rep. 904, 115 Ill. 351.

A tax deed invalid for any purpose equity may declare void as a cloud.

Bell v. Johnson, 111 Ill. 381; Converse v. Rankin, 2 West. Rep. 879, 115 Ill. 399.

A sale on judgment for taxes in excess of authority of law is void.

Harland v. Eastman, 6 West. Rep. 325, 119 Ill. 25.

Where a part of a tax for which a sale of real estate is made is illegal, the sale will be void.

Riverside Co. v. Howell, 113 Ill. 256; Black. well, Tax Titles, 160; McLaughlin v. Thomp son, 55 Ill. 249.

Mr. C. H. Burton, for appellees:

Miller is litigating this claim on behalf of Warren, and this is really only a rehearing of the case of Warren v. Cook, 2 West. Rep. 851,

See Coe v. Farwell, 24 Kan. 566; Blackwell, Tax Titles, 312.

Jurisdiction of court of equity to quiet titles.

Not only are accident, mistake and fraud recognized grounds of relief, but if an instrument ought not to be used or enforced, it is against conscience for the party holding it to retain it, since he can only retain it for a sinister purpose, and according to Judge Story, the modern decisions entitle him to relief quiajtimet. 1 Story, Eq. § 700.

On a principle similar to that which governs bills of peace, courts of equity will interfere to quiet the engagement of a right, or to establish it by a decree, or to remove a cloud from title. Crews v. Burcham, 66 U. S. 1 Black, 352, 17 L. ed. 91; Cross v. De Valle, 68 U. S. 1 Wall. 1, 17 L. ed. 515; Kennedy v. Kennedy, 43 Pa. 417; Bean v. Coleman, 44 N. H. 539; Doe v. Doe, 37 N. H. 263; Fox v. Kimberley, 27 Conn. 307; Munson v. Munson, 28 Conn. 582; Eldridge v. Smith, 34 Vt. 484; Keane v. Kyne, 66 Mo. 216; Hemstreet v. Burdick, 90 Ill. 444; Horn v. Garry, 49 Wis. 464; Watts v. Gunn, 53 Miss. 502.

A court of equity will adjudicate upon the equitable interests of parties claiming title to real estate, in the absence of the person holding the legal title. Smith v. Ford, 48 Wis. 115; Boone's Heirs v. Chiles, 33 U. S. 8 Pet. 532, 8 L. ed. 1034; Tarver v. Tarver, 35 U. S. 9 Pet. 174, 9 L. ed. 91.

Courts of Pennsylvania have adopted and recognize the equity jurisdiction to remove clouds upon title as fully and as broadly as it is described in the equity text-books and decisions. Dull v. McDowell, 5 Cent. Rep. 187, 113 Pa. 510; Kennedy v. Kennedy, 43 Pa. 417; Stewart's App. 78 Pa. 88; 3 Pom. Eq. Jur. $ 1398.