ment creditor having only a lien upon his debtor's real estate by levy of an execution thereon, upon which no sale has been made, to maintain a bill in equity to establish the priority of his lien over the claims of others. Stanton v. Catron, 8 N. M. 355 (45 Pac. Rep. 884). Under Wisconsin Rev. Stat., § 3186, an action to quiet title will lie against one who claims under a contract of purchase void upon its face. Fox v. Williams, 92 Wis. 320 (66 N. W. Rep. 357).

Sec. 671. As to when possession of plaintiff is necessary. One who has the legal title to lands that are wild, uncultivated, and unoccupied, may invoke the aid of a court of equity to remove a cloud upon his title, although he has no other than constructive possession resulting from legal ownership. Baumgardner v. Fowler, 82 Md. 631 (34 Atl. Rep. 537). In Florida the rule is definitely settled that, in bills to remove clouds from the title to real estate, it must be shown that the complainant was in possession of the land when the bill was filed, or that the lands are wild and unoccupied. Watson v. Holliday, 37 Fla. 488 (19 So. Rep. 640). The same rule prevails in Illinois. Robertson v. Wheeler, 162 Ill. 566 (44 N. E. Rep. 566; 870). In Virginia it is held that a court of equity has no jurisdiction to remove a cloud upon a title to land, where the party who asks relief is out of possession. This is upon the ground that such party has a complete remedy at law in an action of ejectment. Louisville & N. R. Co. v. Taylor, 93 Va. 226 (24 S. E. Rep. 1013). One having a good title to a tract of land of part of which he has actual possession has such constructive possession of the remainder as will enable him to quiet his title against one exercising irregular, occasional and equivocable acts of ouster against him under color of title. Gentile v. Kennedy, 8 N. M. 347 (45 Pac. Rep. 879). Heirs at law have such possession of their ancestor's real estate as will entitle them to maintain an action to determine adverse claims thereto under Colo. Code Civ. Proc., § 255, providing that "an action may be brought by any person in possession, by himself or his tenant, of real property, against any person who claims an estate therein adverse to him, for the purpose of determining such adverse claim, estate or interest," where there exists a valid probate of the ancestor's

will which places other persons in possession of the property, although the object of the action is to have the will declared void and a cloud on plaintiff's title. Chilcott v. Hart, 23 Colo. 40 (45 Pac. Rep. 391; 35 L. R. A. 41).

Sec. 672. As to what is a cloud upon title-Jurisdiction of equity to remove. Where a complaint asserting title under a destroyed deed was dismissed without a hearing on its merits, and such proceedings appear of record, it constitutes a cloud on the owner's title. Shults v. Shults, 159 Ill. 654 (43 N. E. Rep. 800; 50 Am. St. Rep. 188). A deed apparently valid but which is dependent upon a preceding void tax deed may constitute a cloud upon one's title. Virginia Coal & Iron Co. v. Kelly, 93 Va. 332 (24 S. E. Rep. 1020). The basis for equitable interference in the removal of clouds from title is that a deed or other instrument, apparently valid, but void in fact, may be vexatiously or injuriously used against the rightful owner, after the evidence to invalidate it has been lost, and the owner, being in possession, cannot immediately protect his right by any legal proceeding. In such a case a court of equity will afford relief and direct the deed or instrument to be delivered up and canceled. Brown v. Solary, 37 Fla. 102 (19 So. Rep. 161). Equity will exercise jurisdiction to remove a cloud resting upon title to real estate (1) where the complainant has only the equitable title, and is either in or out of actual possession, and whether his adversary is in or out of actual possession; (2) where complainant, though having legal title, is in actual possession. It will not exercise such jurisdiction where complainant has legal title, and is not in actual possession, no matter whether his adversary is in or out of actual possession. Equity will exercise jurisdiction in advance to prevent acts which will cast a cloud over title to real estate, on the same principles on which it removes clouds already resting on such title. Moore v. McNutt, 41 W. Va. 695 (24 S. E. Rep. 682).

Sec. 673. Action by remainderman to quiet title. The Neb. Comp. Stat., Ch. 73, § 57, provides that an action may be brought and prosecuted to 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. Section 59 provides that, 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 statute. Under this statute it is held that an action to quiet title may be maintained by a remainderman during the continuance of the particular estate. This action will lie against one who is in possession of the land. Hall v. Hooper, 47 Neb. 111 (66 N. W. Rep. 33).

Sec. 674. Complaint. A complaint to remove a cloud on title which fails to show any title in the complainant is fatally defective. Pierce v. Hunter, 73 Miss. 754 (19 So. Rep. 660). A petition to quiet title which alleges that plaintiff is in possession and claims title in fee is not demurrable. Durrell v. Abbott et al, Wyo. (44 Pac. Rep. 647). The object and purpose of 255, Colo. Code Civ. Proc., is to enable one who is the owner and in possession of real property to bring into court one who asserts an adverse claim or interest therein for the purpose of subjecting the same to judicial investigation and the allegation that he is the owner in fee and in possession is sufficient, without defining such adverse claim. Amter v. Conlon, 22 Colo. 150 (43 Pac. Rep. 1002). Citing, Ely v. Rail way Co., 129 U. S. 291 (9 Sup. Ct. Rep. 293); Stark v. Starr, 6 Wall. 402; Curtis v. Sutter, 15 Cal. 259; Rough v. Simmons, 65 Cal. 227 (3 Pac. Rep. 804); Wall v. Magnes, 17 Colo, 476 (30 Pac. Rep. 56). In a complaint to quiet title to several parcels of land in averring the defendant's adverse claim, it is sufficient to charge that "defendant claims some interest in the land adverse to plaintiff's which claim is without right, unfounded and a cloud on plaintiff's title." Tolleston Club v. Clough, 146 Ind. 93 (43 N. E. Rep. 647). A complaint to cancel, as a cloud on one's title, a tax deed which the statute makes prima facie evidence of title need only allege the due execution of such deed; and it is not demurrable as joining several causes of action because it alleges several reasons why the deed is invalid. Day v. Schnider, Ore. (43 Pac. Rep. 650). A complaint by one claiming title through a

sheriff's sale to cancel and set aside a certificate of redemption issued to the defendant is sufficient where it alleges that the realty was never redeemed by anybody and that the defendant was not the successor in interest of the judgment debtor, and not entitled to redemption. Neale v. Bardue, Cal.

(45 Pac. Rep. 853).

Sec. 675. Parties. Where executors seek to quiet their testator's title to land by asking for the cancellation of his deed to it on account of nondelivery all persons in being who could claim a vested interest in the land under the deed are necessary parties. Brown v. Brown, 97 Ga. 531 (25 S. E. Rep. 353; 33 L. R. A. 816). Where one claiming under an administrator's deed seeks by an action to quiet title to show that such deed embraced more than the lands included in the description, given by metes and bounds in it, which description was the same as that contained in the petition and order of sale, the administrator is not a proper party. Bromberg v. Yukers, 108 Ala. 577 (19 So. Rep. 49).

Sec. 676.

In an

Practice-Miscellaneous notes. action to quiet title or recover land the plaintiff must show title in himself. Schlosser v. Crookshank, 96 Ia. 414 (65 N. W. Rep. 344). To constitute a defense to the action the defendant must set up some adverse claim to or interest in the property, and the nature of such claim, and an answer which shows that the defendant's claim is junior and subject to plaintiff's is insufficient. Weston v. Estey, 22 Colo. 334 (45 Pac. Rep. 367). In an action to quiet title, the question of title between the parties may be fully litigated and determined upon a cross bill and a decree rendered, assigning title to the real estate or any part of it, to the party entitled thereto. Dolen v. Black, 48 Neb. 688 (67 N. W. Rep. 760). Under Missouri statute, Code Civ. Proc., § 2092, it is held that" an adverse claim of title to a remainder which does not conflict with the possession or right of possession of the plaintiff, cannot be required to be litigated by the defendant in a proceeding to quiet title." Northcutt v. Eager, 132 Mo. 265 (33 S.W. Rep. 1125). In an action to quiet title and have a judgment declared not a lien a finding that a judgment is not a lien on

the land is sufficient, without any finding as to the reason why. Dam v. Zink, 112 Cal. 91 (44 Pac. Rep. 331). Ala. Acts 1892-93, p. 42, construed and applied-action to quiet title-granting affirmative relief to defendant. Cheney v. Nathan, 110 Ala. 254 (20 So. Rep. 99; 55 Am. St. Rep. 26).

Sec. 677. Trespass to try title. An action of trespass to try title brought by one claiming to be owner is not defeated by showing a judgment in favor of the defendant in a prior action of forcible entry and detainer brought by plaintiff's tenant. Tex. Rev. Stat., 1895, Arts. 2529, 2542, construed and applied. House v. Reavis, 89 Tex. 626 (35 S. W. Rep. 1063). Where a defendant in an action of trespass to try title shows by his cross-complaint that he has a cause of action against the plaintiff, his right to a trial on the cross complaint can not be defeated by the plaintiff dismissing his bill. Short v. Hepburn, 89 Tex. 622 (35 S. W. Rep. 1056). In an action of trespass to try title to unoccupied lands brought by the state against a railroad company, a receiver of the company which is neither its landlord nor a warrantor of its title is not a necessary party. Tex. Rev. Stat., Arts. 4788, 4790, applied. Houston & T. C. Ry. Co. v. State, 89 Tex. 294 (34 S. W. Rep. 734). Particular facts held to show a prima facie title in plaintiff. Sheppard v. Avery, 89 Tex. 301 (34 S. W. Rep. 440). The presumption in favor of the title of a plaintiff who shows a prior possession under claim of title, as against one who has wrongfully and forcibly acquired possession, is not overcome by the latter proving a grant from the state to one with whose patent plaintiff's claim of title does not connect. House v. Reavis, 89 Tex. 626 (35 S. W. Rep. 1063). The court say: "The presumption which is raised in favor of the title of the possessor of land necessarily includes the presumption that the state had parted with the title to the land to some one, and that the possessor had acquired that title. Otherwise, the presumption of title in fee could not exist. It therefore follows as a necessary and logical conclusion, that to prove that such a title had passed out of the state establishes no fact which is not included in the presumption of title in the plaintiff: that is. that some person

acquired title from the state prior to that of the plaint