CHAPTER SECOND.

SUITS BY WHICH SOME GENERAL RIGHT, EITHER LEGAL OR EQUITABLE, IS ESTABLISHED BILLS OF PEACE AND BILLS QUIA TIMET QUIETING TITLE.

ANALYSIS.

§1393. Nature and object.

§ 1394. Bills of peace-Bills quia timet—Quieting title. § 1393. Nature and Object.In all the remedies belonging to this class, some general right, which may be either legal or equitable, is declared and established.1 The class includes suits to establish a will, suits to construe a will, and the bills of peace and bills quia timet for the purpose of quieting title, which belong to the original general jurisdiction of equity.2

§ 1394. Bills of Peace-Quieting Title. The origin, grounds, growth, and extent of the jurisdiction of equity to entertain bills of peace have been fully discussed in the section which treats of the jurisdiction to prevent a

§ 1393, 1 Some of the remedies of this class undoubtedly depend upon what the early chancellors called the "jurisdiction quia timet." Since the conception of a quia timet jurisdiction is so broad, and runs through so many different branches of the remedial jurisprudence, I have not adopted it as a basis of classification. The object of suits to establish and to construe wills is plainly the establishment of a general right; and the same is no less true of those suits to quiet title, bills of peace, and the like, which belong to the original jurisdiction of equity. § 1393, 2 All of these remedies have been fully considered in the preceding parts of this work, and I shall only add here a few observations concerning bills of peace, etc.

For suits to establish a will, see ante, § 1158. For suits to construe a will, see ante, §§ 1155-1157; also see Dill v. Wisner, 88 N. Y. 153; Delaney v. McCormack, 88 N. Y. 174; Bliven v. Seymour, 88 N. Y. 469 (will of personal property). For suit quieting title, bills of peace, etc., see ante, vol. 1, §§ 243-275.

multiplicity of suits.1 It was shown that there were two distinct kinds of bills of peace,-the one brought for the purpose of establishing a general right between a single party and numerous persons claiming distinct and individual interests, and the other for the purpose of quieting a complainant's title to land against a single adverse claimant.2 In the first class, the original jurisdiction to maintain "bills of peace" or "bills quia timet," properly so called, will only be exercised where the claims of the numerous individuals have some community of interest in the subject-matter, or arise from a common title; but the jurisdiction has been enlarged so as to entertain analogous suits, where the community of interest is in respect merely to the questions involved or to the kind of relief demanded.3 In the second class, the suit can be maintained by a party in possession against a single defendant ineffectually seeking to establish a legal title by repeated actions of ejectment. It is here necessary that the title of the complainant should be established by at least one successful trial at law before equity will entertain jurisdiction.4

§ 1394, 1 Vol. 1, p. 254, sec. iv.

§ 1394, 2 Vol. 1, § 246.

§ 1394, 3 See the cases cited in vol. 1, §§ 273, 274, and the following additional cases on the last branch of the statement: Thorpe v. Brumfitt, L. R. 8 Ch. 650, 655, 656; White v. Jameson, L. R. 18 Eq. 303; Duke of Buccleuch v. Cowan, 5 Macph. (5 Ses. Cas. S., 3d series) 214; Chipman v. Palmer, 77 N. Y. 51, 56, 33 Am. Rep. 566; Chenango Bridge Co. v. Lewis, 63 Barb. 111; Henshaw v. Clark, 14 Cal. 460, 465; Hillman v. Newington, 57 Cal. 56, 64; Blaisdell v. Stephens, 14 Nev. 17, 23, 33 Am. Rep. 523; Gaines v. Chew, 2 How. 619, 642; Oliver v. Piatt, 3 How. 333, 412; Central Pac. R. R. v. Dyer, 1 Saw. 641, 650; Woodruff v. North Bloomfield etc. Co., 8 Saw. 628, 636; Troy & B. R. R. v. Boston etc. R'y, 86 N. Y. 107; Town of Springport v. Teutonia Sav. Bank, 75 N. Y. 397.

§ 1394, 4 Vol. 1, §§ 253, 272; Thompson v. Engle, 4 N. J. Eq. 271; Gunn v. Harrison, 7 Ala. 585. This class is practically obsolete in many states, owing to the effect given to judgments, by statute, in the action of ejectment.

CHAPTER THIRD.

SUITS BY WHICH SOME PARTICULAR ESTATE, INTEREST, OR RIGHT, EITHER LEGAL OR EQUITABLE, IS ESTABLISHED STATUTORY SUIT TO QUIET TITLE-SUIT TO REMOVE A CLOUD FROM TITLE.

§ 1396. Statutory suit to quiet title; legislation.

§ 1397.

The same; essential features and requisites; possession; title. § 1398. Suit to remove a cloud from title; to prevent a cloud.

§ 1399. The same; when the jurisdiction is exercised; general doctrine.

§ 1395. Nature and Object.-In all the instances of this class, as distinguished from those of the preceding one, the direct object of the remedy is to declare and establish some particular estate, interest, or right, either legal or equitable, in the property which is the subjectmatter.1 The class as a whole embraces suits for the strict foreclosure of a mortgage or a pledge, suits for the redemption of a mortgage, suits for the redemption of a pledge, statutory suits to quiet title, and suits to remove a cloud from title.

§ 1395, 1 Some of these remedies, also, have been said to depend upon the quia timet jurisdiction.

§ 1395, 2 These three remedies have already been considered: Strict foreclosure of a mortgage: Ante, § 1227; of a pledge: ante, § 1231. Redemption of a mortgage: Ante, §§ 1219, 1220; of a pledge: ante, § 1231. I shall in this chapter only discuss the statutory suit to quiet title, and the suit to remove a cloud from title. The former of these suits has, in many of the states, become the most important and common of equitable remedies, and has even taken the place, to some extent, of the action of ejectment. The original equitable jurisdiction to quiet title has been greatly enlarged.

§ 1396. Statutory Suit to Quiet Title-Legislation.a_ The equity jurisdiction to quiet title, independent of statute, was only invoked by a plaintiff in possession, holding the legal title, when successive actions at law, all of which had failed, were brought against him by a single person out of possession, or when many persons asserted equitable titles against a plaintiff in possession holding the legal or an equitable title. The action has been greatly extended by statute, and in many states is the ordinary mode of trying disputed titles.1 The states

§ 1396, 1 Arizona: Code Civ. Proc., sec. 256; California: Code Civ. Proc., sec. 738; Practice Act, sec. 254; Colorado: Code Civ. Proc., sec. 237; Dakota: Rev. Codes 1877, p. 584, sec. 635; Idaho: Rev. Laws 1874-75, p. 146, sec. 275; Illinois: Hurd's Rev. Stats. 1880, p. 192, c. 22, sec. 50; Indiana: 2 Davis's Stats. 1876, p. 254, sec. 611; Iowa: 1 Miller's Rev. Code 1880, p. 802, sec. 3273; Kansas: Dassler's Comp. Laws 1881, p. 683, sec. 594; Kentucky: 2 Stanton's Rev. Stats. 1867, c. 57, p. 102; Michigan: 2 Comp. Laws 1871, p. 1537, sec. 36; Minnesota: Young's Stats. 1880, p. 814, c. 75, sec. 2; Mississippi: Rev. Code 1880, p. 507, sec. 1833; Montana: Rev. Stats. 1879, p. 110, sec. 354; Nebraska: Brown's Comp. Stats. 1881, p. 394, c. 73, sec. 57; Nevada: 1 Comp. Laws 1873, p. 372, sec. 1317; New Jersey: Rev. 1877, p. 1189; New York: 2 Bliss's Code Civ. Proc. 1880, p. 88, sec. 1638; Ohio: Code Civ. Proc., sec. 557; Rev. Stats. 1880, p. 1396, sec. 5779; Oregon: Gen. Laws 1874, p. 212, sec. 500; Utah: Comp. Laws 1876, p. 477, sec. 254: Wisconsin: Taylor's Rev. Stats. 1872, p. 1671, e. 141. sec. 29. See also Georgia: Code 1882, secs. 3232, 3233; and Louisiana: Voorhies's Rev. Code of Prac. 1875, p. 46, arts. 46, 49, 50, 52. The statutes of Massachusetts and Missouri contain provisions concerning preliminary actions which may be brought against holders of adverse claims, to show cause why such holders should not institute proceedings to have their claims determined: See Mass. Pub. Stats. 1882, p. 1026, c. 176; Mo. Rev. Stats. 1879, p. 608, sec. 3562. The action, if brought by a plaintiff in possession, or perhaps when both parties are out of possession, is held to be equitable in its nature: Leggett v. Cole, 1 McCrary, 515; Balmear v. Otis, 4 Dill. 558; Brandt v. Wheaton, 52 Cal. 430.

The following are decisions arising under these various acts:California: Present code: Leet v. Rider, 48 Cal. 623; Pierce v. Felter, 53 Cal. 18; Stoddart v. Burge, 53 Cal. 394; Brandt v. Wheaton, 52

§ 1396, (a) On the statutory suit to quiet title, see Pom. Equitable Remedies, §§ 735-743.

adopting such statutes may be separated into two classes, the first and most numerous class requiring the plaintiff

Cal. 430; San Francisco v. Ellis, 54 Cal. 72; Brewer v. Houston, 58 Cal. 345; Burton v. Le Roy, 5 Saw. 510. Practice Act: Merced Min. Co. v. Fremont, 7 Cal. 317, 68 Am. Dec. 262; Smith v. Brannan, 13 Cal. 107; Curtis v. Sutter, 15 Cal. 259; Van Winkle v. Hinckle, 21 Cal. 342; Rico v. Spence, 21 Cal. 504; Head v. Fordyce, 17 Cal. 149; Lyle v. Rollins, 25 Cal. 437; Horn v. Jones, 28 Cal. 194; Ferris v. Irving, 28 Cal. 645; Reed v. Calderwood, 32 Cal. 109; Pralus v. Pacific etc. Min. Co., 35 Cal. 30; Pralus v. Jefferson etc. M. Co., 34 Cal. 558; Brooks v. Calderwood, 34 Cal. 563; 45 Cal. 519; Ross v. Heintzen, 36 Cal. 313; Nevada Co. etc. Canal Co. v. Kidd, 37 Cal. 282; Sepulveda v. Sepulveda, 39 Cal. 13; Coleman v. San Rafael etc. Co., 49 Cal. 517.

Illinois: Emery v. Cochran, 82 Ill. 65; Hardin v. Jones, 86 Ill. 313; Gage v. Abbott, 99 Ill. 366; Whitney v. Stevens, 97 Ill. 482; Oakley v. Hurlbut, 100 Ill. 204; Barnard v. Hoyt, 63 Ill. 341; Wing v. Sherrer, 77 Ill. 200.

Indiana: Cooper v. Jackson, 71 Ind. 244; Green v. Glynn, 71 Ind. 336; Rose v. Nees, 61 Ind. 484.

Iowa: Fejervary v. Langer, 9 Iowa, 159; Laverty v. Sexton, 41 Iowa, 435; Miller v. Davison, 31 Iowa, 435; Lewis v. Soule, 52 Iowa, 11; Paton v. Lancaster, 38 Iowa, 494; Balmear v. Otis, 4 Dill. 558.

Kansas: Eaton v. Giles, 5 Kan. 24; Brenner v. Bigelow, 8 Kan. 496; O'Brien v. Creitz, 10 Kan. 202; Wood v. Missouri etc. R'y, 11 Kan. 323; Giles v. Ortman, 11 Kan. 59; Douglass v. Nuzum, 16 Kan. 515; Entreken v. Howard, 16 Kan. 551; Cartwright v. McFadden, 24 Kan. 662; Douglass v. Bishop, 24 Kan. 749; Giltenan v. Lemert, 13 Kan. 476; Pierce v. Thompson, 26 Kan. 714.

Kentucky: Dudley v. Trustees of Frankfort, 12 B. Mon. 610; Armitage v. Wickliffe, 12 B. Mon. 488, 494; Taylor v. Embry, 16 B. Mon. 340; Cates v. Loftus's Heirs, 4 T. B. Mon. 439; Beard v. Smith, 6 T. B. Mon. 430, 505; Underwood v. Crutcher, 7 J. J. Marsh, 529; Hiatt's Heirs v. Calloway's Heirs, 7 B. Mon. 178; Harris v. Smith, 2 Dana, 10; Landrum v. Farmer, 7 Bush, 46; Fraley v. Peters, 12 Bush, 469.

Michigan: Stockton v. Williams, 1 Doug. (Mich.) 546; Hall v. Kellogg, 16 Mich. 135; Rowland v. Doty, Harr. (Mich.) 3; Blanchard v. Tyler, 12 Mich. 339, 86 Am. Dec. 57; Stetson v. Cook, 39 Mich. 750; Haddon v. Hemingway, 39 Mich. 615; Hammontree v. Lott, 40 Mich. 190; Barron v. Robbins, 22 Mich. 35; King v. Carpenter, 37 Mich. 363; Moran v. Palmer, 13 Mich. 367; Ormsby v. Barr, 22 Mich. 80; Jenkins v. Bacon, 30 Mich. 154; Meth. Church of Newark v. Clark, 41 Mich.