2. That by said decree it be declared and adjudged that the defendant has no estate or interest whatever in or to said land and premises; and that the title of plaintiff is good and valid. 3. That the defendant be forever enjoined and debarred from asserting any claim whatever in or to said land and premises, adverse to the plaintiff, and for such other relief as to this honcrable court shall seem meet and agreeable to equity, and for his costs of suit. commenced an action in the [state the court], against the said C. D. and one E. F., and afterwards, to-wit, on the day of ... 18.., by the consideration and judgment of the said [superior] court, the plaintiff recovered in said action a judgment against the defendants C. D. and E. F., for the sum of dollars damages and costs. ... day of II. That on the 18.., a writ of execution was issued on said judgment in due form of law, directed and delivered to G. H., the then sheriff of III. That by virtue of such execution the said sheriff did levy on the lands and real estate hereinafter described as the lands and property of the said defendant C. D., and after giving and publishing the notice, and doing all things required by law, did on the ........ day of .... 18.., legally sell the said lands and premises, and all the right, title, and interest which the said defendant C. D. had therein, on the ... day of 18.., and the above-named plaintiff being the highest bidder at such sale became the legal purchaser thereof. IV. That the said G. H., as sheriff aforesaid, duly executed and delivered to plaintiff a certificate of such sale, as required by law, and after the time for redemption had expired, and neither the said C. D. nor any other person having redeemed the premises from such sale, to-wit, on the ........ day of 18.., the said G. H., as sheriff as aforesaid, made, executed, and delivered to this plaintiff a deed of conveyance of said premises as required by law. V. That the following is a description of the said lands and premises [here describe them], together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging or in anywise appertaining. .. VI. And the plaintiff further says, that at the time of the rendering of the above-named judgment, and for several years prior thereto, and at the time of said sale, the said defendant C. D. had been and was the real owner of said lands and premises. VII. That on the .... day of.. 18.., and after the commencement of and pending the suit of the plaintiff against said C. D. and E. F. herein above referred to, the said C. D. was largely indebted, and amongst other persons was indebted to the firm of I. K. and company, and also to the plaintiff, on the demands for which the above judgment was rendered. VIII. That, as the plaintiff is informed and believes, and so charges the truth to be, with a view to conceal his said property from plaintiff and other creditors, and to hinder and delay and defraud them in the collection of their debts and demands, he, the said defendant C. D., made and executed to one L. M. a conveyance of the said above-described premises, so purchased by said plaintiff as above set forth. IX. And the plaintiff is informed and believes, and therefore avers, that said conveyance was without any consideration moving from said L. M. or any other person, but was wholly voluntary, sham, and fictitious; and that said L. M. held said premises under said conveyance, in secret trust for the said C. D., until the conveyance by him as next hereinafter stated. ........ day of 18.., the X. That on the said L. M., at the request, as plaintiff believes and charges, of the said C. D., and without any consideration moving therefor, made and executed a conveyance of said premises to one O. D., who is the father of the said C. D.; and that, as plaintiff believes and charges, the said O. D. paid no valuable consideration, but took and held the same in secret trust for the said C. D., and with the intent to aid and abet the said C. D. in hindering, delaying, and defrauding his creditors, and especially this plaintiff. XI. And the plaintiff further avers that by virtue of the sale and purchase by him as above stated, and the conveyance from said .... as sheriff, he became, and was, and is the owner of said premises; that the conveyance from said C. D. to said L. M., and from said L. M. to said O. D., were and are fraudulent and void, and operate only as a cloud on the title of said plaintiff. Wherefore the plaintiff prays that it may be decreed: 1. That said defendant C. D. was the real owner of said premises at the time of issuing said execution and sale, and the conveyance by the said sheriff to said plaintiff, and that said defendant O. D., at the same period, held the same in secret and fraudulent trust for said C. D. as aforesaid; and further, that the plaintiff be adjudged and decreed to be the legal owner of said premises, and that the said conveyance from said C. D. to said L. M., and from said L. M. to said O. D., may be decreed to be fraudulent and void, and of no force or effect. 2. That the said defendants C. D. and O. D. may be decreed to make, execute, and deliver to this plaintiff a deed of conveyance of all the right, title, and interest in said premises; or, that some person may be appointed by this honorable court to do it for them, and that the plaintiff may have such further or other relief as the nature of the case may require; and in the meantime that the said defendant may be enjoined from selling, conveying, transferring, mortgaging, incumbering, or otherwise interfering or meddling with said premises, and for costs. § 2533. To remove a mortgage which is a cloud upon title. Form No. 587. [TITLE.] The plaintiff complains, and alleges: I. That the plaintiff is the owner in fee of the following described premises, situated in [description]. II. [Allege the making of the mortgage, or other apparent lien, stating facts which show that on its face it appears valid, and that in fact it is void.] III. That said mortgage was. on the day of 18.., duly recorded in the office of the recorder of said county, in book ... of Mortgages, page ......... and still remains unsatisfied of record, and a cloud upon the plaintiff's title. Wherefore the plaintiff demands judgment: 1. That the defendant give un said mortgage to be canceled. 2. That the same be satisfied of record. 3. And for the costs of this action. § 2534. Mortgage on homestead. Where A., a married man, mortgaged the homestead to B., without concurrence of his wife, and A. and his wife subsequently mortgaged to C., and B. and C. both foreclosed their mortgages, neither making the other a party; whereupon C. filed a bill against B. to set aside the decree of foreclosure of the latter, alleging that the homestead premises did not exceed in value five thousand dollars; it was held that C. could urge the same objections to the mortgage of B. that A. and his wife could; that B.'s decree was a cloud upon the title, and impaired the security; and that C. was entitled to have it set aside.1 109 § 2535. Parties. The plaintiff filed her bill to remove a cloud upon her title to land, created by her husband's deed to one of the defendants, and she joined in the bill three other defendants, one of whom had bought a portion of the land from the plaintiff and her husband, and two of whom held a mortgage upon the property executed by them; it was held that the latter were unnecessary parties, as the grantee in the deed from the husband, and those claiming under him, were the only parties necessary to a complete adjudication of the case.110 2536. Sheriff's title. The plaintiff purchased at sheriff's sale, under foreclosure of mortgage, property for twenty dollars, which was shown to be worth three thousand, with a rental of fifty dollars per month. The defendant purchased the property under another mortgage sale for two thousand dollars, and the plaintiff being in possession filed his bill to cancel defendant's deed, and remove the cloud from his title. To entitle a party to this relief, it must appear that the contract was fair, just, and reasonable, and founded upon an adequate consideration, as a court of equity will not use its powers to complete a speculation which is already too fortunate to obtain its favorable regard.111 109 Dorsey v. McFarland, 7 Cal. 342. The owner of the legal title to land may maintain an action to quiet title against the claimant of an invalid mortgage lien. Withers v. Jacks, 79 Cal. 297; 12 Am. St. Rep. 143. 110 De Peralta v. Simon, 5 Cal. 313. 111 Dunlap v. Kelsey, 5 Cal. 181. Sufficiency of complaint in action to remove cloud from title. See Shapleigh v. Hull, 21 Col. defendant hired from him the house No. street, San Francisco, for the term of ... II. That the defendant occupied the same under such hiring. III. That during the period of such occupation the defendant greatly injured the premises [state how], to the damage of the plaintiff dollars, against the form of the statute. Wherefore plaintiff demands judgment for dollars damages. § 2538. Allegation of tenancy. In an action to recover for waste, the plaintiff must show that he is entitled to an immediate estate of inheritance, although he need not set out his title particularly.1 If the action is against a tenant for life or years, the complaint must show a seisin in the plaintiff, and a demise to the defendant; 2 and an allegation that the defendants held certain premises as tenants thereof to the plaintiff, under a demise to them for a certain rent, imports a tenancy for a term, and not a tenancy at will. Under an averment of wrongful waste, a recovery may be had for negligent waste.* common-law doctrine. Although § 2539. Growing timber the common-law doctrine of waste is not strictly applicable in this country, yet such cutting of trees or timber as will work a permanent injury to the freehold or inheritance, in the absence of any specific leave or license to cut such trees or timber, is waste, for which an action will lie in equity, for the prevention of such injury by injunction before it is committed, or at law, 1 Greenly v. Hall, 3 Harr. (Del.) 9. 2 Carris v. Ingalls, 12 Wend. 70. |