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property: Liebrand v. Otto, 56 Cal. 242; Tansman v. Faris, 59 Id. 663. It is not a prerequisite to bringing suit that the plaintiff shall have been disturbed in his possession, by the institution of a suit against him, nor need he wait until judgment in such a suit has passed in his favor. It is sufficient if a party out of possession claims an estate or interest adverse to him: Curtis v. Sutter, 15 Cal. 262; S. F. v. Beidemann, 17 Id. 461.

A suit to ascertain and quiet title under this section extends to and includes all the grounds of controversy between the parties as to the title of the premises; and by the final decree therein all matters affecting such title are determined: Starr v. Stark, 1 Saw. 270.

It is not necessary, in order to maintain suit under this section, that the claim sought to be determined should be a technical "cloud upon title," as the term is understood in equity; it is enough if calculated to create doubt and uncertainty in respect to the title of the true owner, or if operating injuriously in any way to his enjoyment of or beneficial dominion over such property. Any attempt persisted in to have such propcrty sold on execution against a third party is an adverse claim in the meaning of this section: Murphy v. Sears, 11 Or. 12. A party has the right to be quieted in his title whenever any claim is made to real estate, the effect of which claim might be litigation or a loss to him of the property: Horn v. Jones, 28 Cal. 204. If the title against which relief is sought be of such a character that if asserted by action the other party would have to produce his own title to establish a defense, it constitutes a cause of action under this section; otherwise not: Lick v. Ray, 43 Id. 84. It is not enough that a deed which is sought to be set aside may possibly be a cloud; it must clearly appear that the claim set up under it is in fact in hostility to plaintiff's title: Hartman v. Reed, 50 Id. 485.

Where plaintiff purchased at sheriff's sale property for twenty dollars which was shown to be worth three thousand dollars, and 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

the title, it was held that to entitle Oct. 11, 1862, a party to this relief, it must appear $500. that the contract was fair, just, and reasonable, and founded upon an adequate consideration; and the court further held that the above purchase was not such a contract: Dunlap v. Kelsey, 5 Cal. 181. Where a co-tenant is in possession, and another cotenant claims an estate or interest in the premises held in common, adverse to him, his remedy is by a suit in equity, for the purpose of determining such adverse claim, as provided in this section: Goldsmith v. Smith, 10 Saw. 294; Ross v. Heintzen, 36 Cal. 321. The existence of a decree founded on proceedings taken prior to plaintiff's title, which was under a sheriff's sale, and seeking to condemn the property by virtue of an asserted lien older than such title, would be a cloud upon such title: Head v. Fordyce, 17 Id. 149. It is said that the section may, perhaps, be broad enough to authorize an action against the tenant himself, but that there are conclusive reasons why it should not be so construed. A tenant may acquire an adverse title, but he cannot use it against the landlord so long as the tenancy continues, and the effect of the action would be to cut him off without an opportunity to be heard: Van Winkle v. Hinckle, 21 Id. 343.

An apparently good record title to land constitutes a cloud upon a title thereto previously acquired by adverse possession: Arrington v. Liscom, 34 Cal. 366. In an action to quiet title to a quartz-mining claim, where plaintiffs claimed only a possessory title in the public lands of the United States, the court held such a claim or title sufficient to entitle plaintiff to maintain the action: Pralus v. Pacific etc. Co., 35 Id. 34; Merced Mining Co. v. Fremont, 7 Id. 319; S. C., 68 Am. Dec. 262; Smith v. Brannan, 13 Cal. 107; Boggs v. Merced Mining Co., 14 Id. 279; Curtis v. Sutter, 15 Id. 259; Head v. Fordyce, 17 Id. 149. An allegation in the complaint, that "by means of the false representations and pretenses aforesaid" of the said defendant, "the plaintiffs are greatly embarrassed in the free enjoyment, use, and disposition of their said described mining claim, and that the interest of these complainants in said mining claim is greatly depreciated by reason of the possibility of title in the said defendant, resulting from

Oct. 11, 1862, $500.

Oct. 11, 1862, $501

and growing out of said false and pretended claims," is sufficient averment of injury under the statute, resulting from such adverse claim, to sustain the action: Pralus v. Pacific etc. Co., 35 Cal. 34.

A tax deed based on an assessment made under an unconstitutional law is not a cloud: Williams v. Corcoran, 46 Cal. 556. One who claims title to land alleged to be a public street or highway cannot maintain an action to quiet his title thereto against a street commissioner of a city, who claims no interest in the land. Such street commissioner is the mere servant of the city, and his acts in the performance of his duty are the acts of the city: Leet v. Rider, 48 Id. 623. A plaintiff cannot ask that the defendant be debarred from asserting a claim under an instrument executed by the former, without restoring the consideration received: Chandler v. Chandler, 55 Cal. 267.

It is necessary, in a suit to remove a cloud, to state facts from which the court can properly draw the conclusion that defendant's claim is a cloud on plaintiff's title: King v. Higgins, 3 Or. 406. Thus it is held that the facts which show the apparent validity of the instrument which is said to constitute the cloud, and also the fact chowing its invalidity, ought to be stated: Teal v. Collins, 9 Id. 89; Hibernia Sav. & L. Soc. v. Ordway, 38 Cal. 681; but see Goldsmith v. Gilliland, 10 Saw. 606, where it is held that it is not necessary to state the nature or circumstances of the defendant's claim, but it is sufficient to allege that the defendant wrongfully makeз such claim, and call upon him to set it forth in his answer, and submit its validity to the judgment of the

court.

Under the above section it is not essential that the complaint should aver the plaintiff to be the owner in fee; it will be sufficient if it appear that the plaintiff claims an interest in the land, and that the defendant asserts a claim of title adverse to the plaintiff's claim: Stoddard v. Burge, 53 Cal. 394; so also Rough v. Simmons, 65 Cal. 227; Rough v. Booth, 2 West Coast Rep. 832. The owner of an estate in lands less than a fee can

maintain an action to determine an adverse claim made by another person: Pierce v. Felter, 53 Cal. 18.

In actions of this character, want of title in the plaintiff renders it unnecessary to examine the title of the defendant: San Francisco v. Ellis, 54 Cal. 72. If neither party owns the property, neither is entitled to judgment against the other: San Diego v. Allison, 46 Id. 167.

Where the defendant relies upon title in himself, a cross-complaint is unnecessary, and if filed, will not entitle the defendant to have the issues thereon tried first: Wilson v. Madison, 55 Cal. 5. A denial of plaintiff's ownership and of his possession other than as tenant for another, and an averment of a conveyance from plaintiff to defendant of a portion of the land, is such an answer as does not justify judgment for plaintiff on the pleadings: Garvey v. Willis, 50 Id. 619. Defendant cannot prove prior possession in a third party with whom defendant does not connect his title: Niagara G. & S. M. Co. v. Bunker Hill Con. M. Co., 59 Id. 612.

The plaintiff, if successful, may have an injunction restraining defendant from further setting up his claim: Brooks v. Calderwood, 34 Cal. 566.

A plaintiff in a suit to quiet title cannot, at his option, split it up into many suits, and if he omits to set forth and prove all the grounds of his right, or his adversary's want of it, he cannot afterward bring another suit upon the fragment or portion of the case omitted; and where one of the grounds of the relief sought is abandoned by the complainant because adjudged to be inconsistent with another ground of relief alleged in his complaint, and such suit is finally determined adversely to the complainant, he is barred from maintaining another suit for the same relief upon such abandoned ground: Starr v. Stark, 1 Saw. 270. In an action to quiet title the plaintiff was not precluded from bringing forward certain facts in his complaint which he might have set up, but did not, in his answer in a previous action of ejectment by the then defendant against the then plaintiff: Ayres v. Bensley, 32 Cal. 628.

§ 505. [501.] Whenever any person claims any real property as a donee of the United States, by virtue of a

$501.

fully issued.

15 Or. 475.

settlement thereon, under the act of Congress approved Oct. 11, 1862, September 27, 1850, commonly called the donation law, Suit to cancel or the acts amendatory thereof, and the patent for such patent wrongproperty, or any portion thereof, shall have wrongfully issued to another, such person may maintain a suit in 12 Or. 18. equity against the person to whom the patent may issue, or those claiming under him, for the purpose of having such patent canceled, and the estate or interest of the plaintiff in the property ascertained and established. In such suit, the party entitled to and making the settlement under such acts of Congress, and complying with the subsequent conditions thereby required, shall be taken and deemed to have a legal estate in fee in the property, although the patent therefor has issued to another.

This section expresses in a condensed manner what has always been the rule and practice of United States

courts in equity cases concerning pub-
lic grants of land: Lee v. Summers, ?
Or. 267.

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$1.

establish

506. In any case where any dispute or controversy Feb. 21, 1887, exists, or may hereafter arise, between two or more owners Suit may be of adjacent or contiguous lands in this state, concerning brought to the boundary lines thereof, or the location of the line or boundary. lines dividing such lands, either party, or any party to 16 Or. 402. such dispute or controversy, may bring and maintain a suit in equity in the circuit court of this state in the county where such lands, or some part thereof, are situated, for the purpose of having such controversy or dispute determined, and such boundary line or lines, or

Feb. 21, 1887, $ 1.

Suit may be brought to establish boundary.

Feb. 21, 1887, $2,
P. 54.

Pleadings therein.

Feb. 21, 1887, § 3.

Mode of
Proceeding.

- Feb. 21, 1887, $4.

Oath and

missioners.

dividing lines, ascertained and marked by proper monuments, upon the ground where such line or lines may be ascertained to be, and established in such suit.

In effect from date of approval.

§ 507. The complaint in such suit shall be sufficient, if it appears therefrom that the plaintiff and defendant or defendants are owners of adjacent lands, some part of which is in the county in which said suit is brought; that there is a controversy or dispute between the parties concerning their boundary or dividing line or lines, and it shall not be necessary to set forth the nature of such dispute or controversy further than that the plaintiff shall describe the boundary or dividing line as he shall claim it to be. The defendant in his answer shall set forth the nature of his claim, with reference to the location of the line in controversy.

§ 508. The mode of proceeding under this act shall be analogous to that of other suits in equity. Provided, that at the time of entering the decree fixing the true location. of the disputed boundary or dividing line the court shall appoint three disinterested commissioners, one of whom shall be a practical surveyor, and shall direct said commissioners to go upon the lands of the parties, and establish and mark out upon the grounds, by proper marks and monuments, the boundary or dividing line as ascertained and determined by the court in its decree.

§ 509. Before entering upon the discharge of their duties, the said commissioners shall make and file their duties of com- oath in writing, to faithfully and impartially perform their duties as such commissioners, and after designating the said line by proper marks and monuments, they shall file, in said court and cause, a report of their doings as such commissioners, and the same shall be, when approved or confirmed by the court, a part of the judgment roll in said cause.

Feb. 24, 1887, $5.

§ 510. The report of the commissioners may be confirmed by the court, upon written motion of either party

P. 54.

Their report.

to such suit, whenever it shall appear to the court that Feb. 21, 1887, §5, said motion was served upon the adverse party two days before the presentation thereof, and that no exceptions have been filed to said report within two days after said service. If exceptions are filed as aforesaid, to said report, said exceptions may be heard with the motion to confirm, and the court may confirm, modify, or set aside said report, as shall seem just, and in the latter case may appoint a new commission or refer the matter to the same commissioners, with appropriate instructions.

CHAPTER VI.

OF APPEALS, COSTS, AND MISCELLANEOUS MAT-
TERS IN ACTIONS AND SUITS.

TITLE I.-OF OFFER TO COMPROMISE, AND THE INSPEC-
TION OF WRITINGS.

II. OF MOTIONS AND ORDERS.

III.

OF NOTICES AND SERVICE AND FILING OF
PAPERS.

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§ 512. § 513.

§ 514.

If original paper or pleading be lost, copy may be filed.

When successive actions or suits may be maintained upon the same
contract or transaction.

When actions or suits may be consolidated. When deemed pending.

§ 515. When court has jurisdiction of natural person.

§ 516. When court has jurisdiction of corporation.

§ 517. What jurisdiction court may exercise when it has jurisdiction of the

parties.

§ 518. When majority of referees or other persons may act.

§ 519. Computation of time for the publication of legal notices or other acts.

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