CASES ARGUED AND DETERMINED IN THE SUPREME COURT OF JUDICATURE OF THE STATE OF INDIANA, AT INDIANAPOLIS, MAY TERM, 1886, IN THE SEVENTIETH No. 12,547. RAUSCH v. THE TRUSTEES OF THE UNITED BRETHREN IN CHRIST CHURCH. QUIETING TITLE.—Adverse Claim.--Sufficiency of Complaint.---Under section SAME.-Church Property.-Liability for Street Improvement.-Church prop- Rausch v. The Trustees of the United Brethren in Christ Church. SAME.-Deed. -- Exhibit.-A deed under which one claims to be the owner of property is merely evidence of title, and not a proper exhibit to a complaint to quiet title. From the Huntington Circuit Court. B. F. Ibach and J. G. Ibach, for appellant. J. T. Alexander and J. M. Hatfield, for appellee. Howk, C. J.-This was a suit by appellee to quiet its title to lot No. 17, in the original plat of the town, now city of Huntington, against appellant's adverse claim of title to such lot. Appellant answered by a general denial of the complaint, and also filed his cross complaint, in two paragraphs. To each of these paragraphs appellee's demurrer, for the alleged insufficiency of the facts therein, was sustained by the court. Thereupon, appellant withdrew his answer in denial of appellee's complaint, and, refusing to plead further, the court rendered a decree quieting appellee's title to the lot in controversy as against appellant's adverse claim of title thereto. Appellant has here assigned as errors, (1) the sustaining of the demurrer to the first paragraph of his cross complaint, (2) the sustaining of the demurrer to the second paragraph of his cross complaint, and (3) that appellee's complaint does not state facts sufficient to constitute a cause of action. 1. In the natural order, the last of these errors, which questions the sufficiency of appellee's complaint, should be first considered. It is claimed by appellant's counsel that it is not sufficient for the plaintiff to allege, in a complaint under our statute to quiet his title to real property, that the defendant's claim of title to such property is adverse to him, "unless accompanied by an allegation that such claim is untrue, or injurious to plaintiff, or wrongful." This objection of counsel to the sufficiency of appellee's complaint is not sustained by our statute (section 1070, R. S. 1881), under which it is clear that the plaintiff need only allege in his com Rausch v. The Trustees of the United Brethren in Christ Church. plaint, as the appellee has alleged in this case, that the defendant's claim of title to or interest in the real estate in controversy is "adverse to him." Nor is such objection of counsel to appellee's complaint supported by our decisions. In the recent case of Johnson v. Taylor, 106 Ind. 89, which was a statutory suit to quiet the title to real property, the court said: "The provisions of section 1070, supra, have always been liberally construed by this court. Of course, in such an action, the plaintiff or cross complainant must allege in his complaint or cross complaint that he is the owner of certain real estate, or of a certain interest therein, describing the same; and that the claim of the defendant to his action or cross action, in or to such real estate or interest therein, is adverse to the title asserted by the plaintiff, or is unfounded and a cloud upon plaintiff's title." When the complaint or cross complaint, in such an action, substantially alleges such facts as those stated, as does the appellee's complaint in the case in hand, it would be good on a demurrer thereto for the want of sufficient facts, and good beyond all room for doubt when questioned for the first time by an assignment of error in this court. This is settled, we think, by our decisions. Marot v. Germania, etc., Ass'n, 54 Ind. 37; Jeffersonville, etc., R. R. Co. v. Oyler, 60 Ind. 383; Second Nat'l Bank, etc., v. Corey, 94 Ind. 457; Conger v. Miller, 104 Ind. 592. What we have said, in considering the question of the sufficiency of appellee's complaint herein, is practically decisive of the question of the sufficiency of the first paragraph of appellant's cross complaint, in his favor. In that paragraph of his cross complaint, appellant alleged that he was the owner of the lot in controversy, and that appellee's claim to such lot was a cloud upon his title, and he asked that the title be decreed to be in him, and for such other relief as law and equity entitled him to. The facts stated in this paragraph, we think, constituted it a good cross complaint under our statute to quiet appellant's title to the lot in controversy, sufficient to withstand appellee's demurrer Rausch v. The Trustees of the United Brethren in Christ Church. thereto. It is true that appellant attempted to make the deed, under which he claimed to be the owner of the lot in controversy, a part of the first paragraph of his cross complaint by filing therewith, as an exhibit, a copy of such deed. But it is evident that such deed was at most evidence merely of appellant's title to such lot, and was not, in any proper sense, the foundation of the cause of action stated in such first paragraph of his cross complaint. It is only where the pleading is founded on a written instrument, that the instrument can be made a part of the pleading by filing therewith "the original, or a copy thereof." Section 362, R. S. 1881; Anderson School Tp. v. Thompson, 92 Ind. 556; Hight v. Taylor, 97 Ind. 392. But without reference to the copy of such deed, and rejecting it as mere surplusage, we think the facts stated in the first paragraph of appellant's cross complaint were sufficient to constitute a cause of action in his favor; and, therefore, that the court clearly erred in sustaining appellee's demurrer to such first paragraph. The error assigned by appellant, upon the sustaining of appellee's demurrer to the second paragraph of his cross complaint, presents questions very different from those we have hitherto considered in this opinion. Appellant claimed to be the owner of the lot in controversy, under a sale thereof by the treasurer of the city of Huntington upon a precept issued to him by the city clerk, pursuant to an order of the common council of such city, for the collection of certain assessments against such lot for the improvement of the city street, whereon the lot fronted, by the appellant as contractor with the city for the improvement of such street, at which sale he became the purchaser of such lot, and under a deed of the lot, subsequently executed to him as such purchaser, by the city treasurer in pursuance of such sale. In the second paragraph of his cross complaint appellant did not allege, in hæc verba, that he was the owner of the lot described in appellee's complaint; but he alleged therein that the appellee was the owner of such lot on September 3d, 1879, and Rausch v. The Trustees of the United Brethren in Christ Church. was then and had since continued in the possession thereof; that on the day last named the common council of such city of Huntington, then and there composed of six members and no more, adopted an ordinance to grade and macadamize Poplar street, and boulder the gutters on each side thereof through its entire length, from Market street north to German street, at the cost and expense of the owners of the lots bordering on Poplar street; that the lot in controversy herein bordered on such street for 135 feet; that such ordinance was adopted by the votes of all the members of such common council, in favor of its adoption; that thereupon, by order of the common council, the city civil engineer gave notice by publication in a weekly newspaper for two consecutive weeks, that sealed proposals would be received by such common council, at the city clerk's office, until October 1st, 1879, for macadamizing and gravelling Poplar street, and for bouldering the gutters on each side thereof, the bids for such macadamizing, and the bids for bouldering the gutters, to be made separately, and that joint bids would not be entertained; that in the notice so published each lot and parcel of land, bordering on Poplar street, was particularly described and the names of the respective owners thereof were given, and they were therein notified that the improvement of such street, in the manner specified, would be done at the cost and expense of the owners of the property abutting thereon, and the street and alley crossings only would be paid by such city; and that the lot in controversy was described, and the appellee as owner and occupant thereof, and the then trustees of such church were named in the aforesaid notice. And appellant further alleged that, pursuant to such notice, on October 1st, 1879, the common council of such city in regular session, with all the members present, opened all the bids received for the improvement of such street, and appellant was found to have been the best bidder for bouldering the gutters of such street; that thereupon, on October 16th, 1879, such city entered into a written contract with appel |