be brought and prosecuted to a final decree by any person or corporation whether in actual possession or not, claiming title legal or equitable to real estate against any person or corporation not in actual possession who claims an adverse estate or interest legal or equitable therein, for the purpose of determining such estate or interest and quieting, or removing clouds from, the title to such real estate." Under Or. Laws 1899, p. 227, amending Hill's Ann. Laws, § 504," any person claiming an interest or estate in real estate not in the actual possession of another, may maintain a suit in equity against another who claims an interest or estate therein adverse to him, for the purpose of determining such conflicting or adverse claims, interests or estates."

Sec. 716. Rights of plaintiff in possession-When possession of plaintiff is necessary. Construing and apply. ing Ala. Laws, 1892-93, p. 42, it is held that a complaint which alleges that the complainant is in the peaceable possession of the land under claim of ownership and that the defendants assert a hostile interest is not demurrable, though it shows that the tax titles under which the complaintant claims are invalid. Adler v. Sullivan, 115 Ala. 582 (22 So. Rep. 87). The court say: "This statute, allows any per

son in peaceable possession of lands claiming to own the same, whose title thereto, or any part thereof, is denied or disputed, or when any other person claims or is claimed or is reputed to own the same, or any interest therein, or to hold any lien or incum. brance thereon,and no suit shall be pending to enforce or test the validity of such title, claim or incumbrance, to bring and maintain a suit in equity to settle the title to said lands, and clear up all doubts and disputes concerning the same." For further construction of this statute, see Loeb v. Wolff, 116 Ala. 273 (22 So. Rep. 513). The fact that a vendee held a bond for title to a lot, paid the taxes thereon, paid for the placing of a pavement in front of it and referred to it in his correspondence as "my lot " is sufficient to show that he had possession of it. Coleman v. First Nat. Bank, 115 Ala. 307 (22 So. Rep. 84). In Florida it is held that a bill to quiet title is demurrable where it does not allege that the complainant was in possession of the land at the time of filing the bill,

or that the land was wild, unimproved, and unoccupied. Richards v. Morris, 39 Fla. 205 (22 So. Rep. 650). Under the Illinois statute, an action to remove a cloud from title can only be maintained where the complainant is in possession of the premises, or where the premises are vacant and unoccupied at the time of the filing of the bill. Glos v. Bouton, 170 Ill. 249 (48 N. E. Rep. 949). While the general rule in Kansas is that in order to maintain an action to quiet title to land, the plaintiff must either be in possession, or have the legal title to the land, where it appears that the plaintiff has sold to one of the defendants, who withholds a large part of the purchase money until the title to the land is perfected, and the plaintiff is bound by contract to so perfect the title, and where it further appears that such defendant refuses to allow an action for that purpose to be brought in his name, the vendor may bring an action against the vendee and the persons claiming the adverse title or interest, for the purpose of perfecting the title in accordance with his agreement. Sutliff v. Smith, 58 Kan. 559 (50 Pac. Rep. 455). Citing, Styer v. Sprague, 63 Minn. 414 (65 N. W. Rep. 659); Pier v. Fond Du Lac Co., 53 Wis. 421 (10 N. W. Rep. 686); Begole v. Hershey, 86 Mich. 130 (48 N. W. Rep. 790). In Kentucky it is held that a bill in equity to quiet title must aver that the plaintiff has actual possession of the land. Cornelieson v. Foushee, Ky. (40 S. W. Rep. 680); Coppage v. Griffith, (40 S. W. Rep. 908); Smith v. White, (41 S. W. Rep. 436). In Montana, in order to maintain an action to quiet title, the plaintiff must not only allege but prove possession on his part. Sklower v. Abbott, 19 Mont. 228 (47 Pac. Rep. 901). Ohio Rev. Stat. § 5779, gives a right of action to quiet title to one out of possession who claims an estate or interest in remainder or reversion in real property. It does not give such right to one out of possession who claims the entire estate. Raymond v. Toledo, St. L. & K. C. R. Co., 57 O. St. 271 (48 N. E. Rep. 1093). In Wisconsin, one who has the legal title to land whether in possession or not, may maintain an action in equity to remove a cloud from his title, where the invalidity of the hostile claim cannot be shown by any record, but must be proved by other evidence. Davenport v. Stephens, 95 Wis. 456 (70 N. W. Rep. 661). One

Ky.

Ky.

having the legal title to a tract of land and who is in possession of the same, may maintain a bill in equity to remove a cloud upon his title. Smith v. O'Keeffe, 43 W. Va. 172 (27 S. E. Rep. 353).

Sec. 717. Complaint in action to quiet title. A complaint to quiet title against certificates of sale issued without authority, is insufficient where it fails to allege that a defendant holds any of the certificates or has any interest in the land. Wilson v. Carter, 117 Cal. 53 (48 Pac. Rep. 983). A bill to cancel as a cloud on title a trust deed executed by one of the defendants to his codefendant as trustee to secure the payment of a note executed by the maker to himself, is not subject to demurrer for failure to make the holder of the note a party, it not appearing that the note had been transfered. Glos v. Furman, 164 Ill. 585 (45 N. E. Rep. 1019). Ala. Laws 1892-93, p. 42, construed and applied-sufficiency of complaint. Adler v. Sullivan, 115 Ala. 582 (22 So. Rep. 87); Loeb v. Wolff, 116 Ala. 273 (22 So. Rep. 513). Particular complaint held sufficient under Minn. Gen. Stat. 1894, § 5817, to determine adverse claims to real estate. Bovey-De Laitre Co. v. Dow, 68 Minn. 273 (71 N. W. Rep. 2). For extended discussion of the sufficiency of a complaint to quiet title to a mining claim, see McKay v. McDougal, 19 Mont. 488 (48 Pac. Rep. 988).

Sec. 718. Cross complaint in action to quiet title. Where the scope of the complainant's bill is such as to call for a determination of the question of title between the parties, the defendant has a right to interpose by way of cross bill and ask relief, to which he is entitled, in case the court should find against complainant's title. McKenzie v. 4. P. Cooke Co., 113 Mich. 452 (71 N. W. Rep. 868). Citing, Griffin v. Griffin,112 Mich. 87 (70 N. W. Rep. 423); Shields v. Barrow, 17 How. 130; Greenwalt v. Duncan, 16 Fed. Rep. 35; Watts v. Sweeney, 127 Ind. 116 (26 N. E. Rep. 681; 22 Am. St. Rep. 615); Jones v. Thacker, 61 Ga. 335; Remer v. McKay, 38 Fed. Rep. 164; Logan v. McMillan, 5 Dan. 485; Hall v. Edrington, 8 B. Mon. 47; 2 Daniell, ch. Prac. 1549. Where

one claiming real estate under a will, brings an action to quiet his title against the testator's heirs, they can assail the validity of the will by a cross complaint without filing bond required by Ind. Rev. Stat. 1894, § 2767, in proceedings to contest a will. Hackney, J., dissenting. Putt v. Putt, 149 Ind. 30 (48 N. E. Rep. 356).

Sec. 719. Practice in actions to quiet title-Miscellaneous notes-Statutes construed and amended. Where several persons claim title under the same person, some by deeds and others by contracts of purchase, requirements of which they allege have been performed, the several deeds and contracts being made at different times and embracing distinct parcels, they cannot join in a suit to remove, as a cloud upon their title, a mortgage covering all the land. Utterback v. Meeker, 16 Wash. 185 (47 Pac. Rep. 428). Where both parties claim title under a common grantor, the plaintiff is not required to trace his title back of such grantor. Brown v. Taber, 103 Ia. 1 (72 N. W. Rep. 416). In an action to quiet title by a purchaser at an execution sale as against the judgment debtor the production of the judgment, execution and sheriff's deed is prima facie evidence of the plaintiff's right to recover without proof that the judgment debtor had title or possession of the land at the date of the lien or of the sale. Reilley v. Wright, 117 Cal. 77 (48 Pac. Rep. 970). Where the bill alleges possession by the plaintiff and the proof shows the property to be vacant, the variance is fatal. Glos v. Bouton, 170 Ill. 249 (48 N. E. Rep. 949). As a general rule, the answer of one defendant is not admissible in evidence against his codefendant, but this rule does not prevail where the defendants are privies in estate, so that the right of one of them devolves upon the other. Lockman v. Miller,

Miss.

(22 So. Rep. 822). Where a complaint in an action to quiet title to a mining claim, does not call upon the defendants to set out their interest or claim of title, they may show under a general denial a valid location by them prior to the plaintiff's location. Adams v. Crawford, 116 Cal. 495 (48 Pac. Rep. 488). Where the plaintiff's title is denied and the evidence shows the land claimed to be within a grant made by the government to a railroad company, which was sub

sequently cancelled except as to certain clauses, the plaintiff must show that he is within one of the exceptions. Bahmer v. Big Rock Creek Irr. Dist., 117 Cal. 19 (48 Pac. Rep. 908). Conn. Pub. Laws 1893, ch. 66, governing actions to quiet title, is not unconstitutional for the reason that it deprives litigants of the right of trial by jury, nor does it deprive the defendant in such an action of due process of law by compelling him to either say that he claims no interest in the property or to state fully what his claim is. Miles v. Strong, 68 Conn. 273 (36 Atl. Rep. 55). Ill. Rev. Stat. ch., 116, §§ 15, 20, construed and applied-proceedings to establish title under burnt records act. French v. Goodman, 167 Ill. 345 (47 N. E. Rep. 737). Particular evidence held sufficient to establish a prima facie case for plaintiff in an action under this statute. Cooney v. A. Booth Packing Co., 169 Ill. 370 (48 N. E. Rep. 406). Va. Code, §§ 2361-2364, construed and applied-action to establish lost deed and removal of cloud from title-sufficiency of evidence. Barley v. Byrd, 95 Va. 316 (28 S. E. Rep. 329). Me. Rev. Stat., ch. 104, § 48-notice to defendant-decree upon default-amended, Laws 1899, ch. 99, p. 102. Mass. Laws 1897, ch. 522, § 1; Laws 1898, ch. 457, § 1-making parties defendant of persons who are non-residents, unknown, or not in being—amended, Laws 1899, p. 340. N. Dak. Rev. Codes, 5907-parties defendant to actions to quiet title -unknown heirs amended, Laws 1899, p. 228.

Sec. 720. Trespass to try title. A complaint in the nature of trespass to try title to a mining claim is sufficient where it avers ownership, right of possession, and the fact of possession and entry by defendant without consent of plaintiff, his mining thereon and threat to continue to mine, and damages done by reason of defendant's acts. McKay v. McDougal, 19 Mont. 488 (48 Pac. Rep. 988). A claim through a common source of title is not shown by a defendant in an action of trespass to try title claiming title under a tax deed purporting to convey to his predecessor in title the interest of the plaintiff's predecessor" and of every other claimant whomsoever in and to" the land. Hendricks v. Huffmeyer, 90 Tex. 577 (40 S. W. Rep. 1).