PATRIOK V. ISENHA.RT.
the proceeding was under the state statute, and. necessarily brought in the court which rendered the original judgment, and was, in fact, a proceeding to enable the state court to determine whether its process had been misapplied. The rule thus laid down by the supreme court is adverse to the right of removal on the part of the intervenors in the present cause, for the object and purpose of the intervention is exactly the same as that sought to be accomplished by the intervenors in the case decided by the supreme court. If, therefore, neither the intervenors nor garnishees could remove the case, it is not properly in the federal court unless the right of removal existed as against the defendant. A default having been entered against the defendant, in the state court, this terminated the right of removal as against the defendant, under the ruling in Keith v. Levi, supra. It follows that the motion to remand is well taken, and the cause must be remanded to the state court.
(Oircut't Court, D. Kansa8. May 19,1884.)
EQUITABLE' ACTION TO REMOVE CLOUD ON TITLE-POSSESSION-LEGAL AND EQUITABLE TITLE.
In order to maintain an action in equity to remove a cloud on the title to land a plaintiff must have possession, and the legal and equitable title.
FOR RELTEF-DEMURRER-EQUlTABLE ACTION.
GENERAL AND SPECIAL
Where a plaintiff brings a suit in equity, under a misapprehension as to the special relief that he is entitled to, but the bill contains a general as well as special praver for relief, and sets forth facts showing a right to relief, there is no ground a demurrer, and the court will grant the proper relief.
LACHEs-ACTION TO REMOVE OI,OUD ON TITLE.
Where a plaintiff obtains title to land, and heand his grantors have exercised unmolested ownership over it, and paid taxes on it for many years, not being advised of any adverse right or title, he cannot be charged with laches in failing to bring an action to remove a cloud upon the title, made many years before, against which there had been an attempted adjudication. Where certain persons are not necessary parties, a demurrer to a bill in eqUity for defect of parties will not be sustained.
Demurrer to Bill. Guthrie d: Berg.en, for complainant. G. O. Olemens, for defendants. FOSTER, J. If the facts alleged in this bill could be held to fix the legal title of the land in the plaintiff, then the bill could not be maintained, for he would have a complete and adequate remedy at law by an action of ejectment; hut it seems to me the facts alleged show the equitable title only to be in the plaintiff and the legal title and possession in the defendants. It charges notice to all the de-
Iendants, at the time of their purchase, of the facts and proceedings upon which the plaintiff's rights are predicated, and charges a. conspiracy and confederation on the part of the defendants to cheat and defraud him. It also charges that the defendants paid no consideration for the legal title, and are not bona fide purchasers, etc. It further avers that the defendants have entered upon and are in possession of the premises and have built a fence thereon, and make. a. claim of title and ownership thereto, etc. It is evident from the bill that it makes a case relievable in equity, but not a case for removing a cloud from the title. It seems that in order to obtain that relief the complainant must have the legal and equitable title, as also the possession. "Those only who have a clear legal and equitable title to land, connected with possession, have any right to claim the interference of a court of equity to give them peace or dissipate a cloud on the title." Orton v. Sm'ith, 18 How. 265. The prayer in this bill is for discovery and relief, and the relief prayed is as follows:
"And that your orator may be decreed to be the owner in fee-simple of said lands and tenements; that said defendants have no right or title therein; that your orator's title thereto be quieted, etc. And that the defendants * * * be furever barred from setting up any claim of right, title, or interest in said premises, and that your orator may have, generally. such other and further relief as the nature of his case may require."
Equity rule 21 provides:
.. The prayer of the bill shall ask the special relief to ;which the plaintiff supposes himself entitled, and also shall contain a prayer for general relief."
The special relief prayed in this bill is to quiet title or remove a cloud, but there is also a, prayer for general relief. Upon the state of facts set forth by the bill, I am of the opinion the plaintiff cannot have the special relief he prays, but rather would be entitled to a decree declaring him to be entitled to the legal estate, and that the defendants hold the same in trust for his use and benefit, and for a conveyance of the same to him, etc. But a misapprehension by the plaintiff as to the special relief he is entitled to is no ground for a demurrer where there is a general prayer for relief, for in such a case, if the bill sets forth facts showing a right to relief, the court may grant the proper relief under the general prayer. Tayloe v. Ins. Co. 9 How. 406; Stevens v. Gladding, 17 How. 454. The objection that plaintiff has been guilty of laches, were it not for special reasons set out in the bill, would be a serious one, especially if he is charged with the laches of those under whom he holds. This plaintiff obtained his title in 1876, and he and his grantors have exercised unmolested ownership over this land and paid taxes on it for m:my years, and were not advised that any adverse right or title was claimed by anyone under the conveyance of Snow to Faut, made in 1858. and against which there had been an attempt at least to make an adjudication in the proceedings set out in the bill. And not until
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GRIGGS 11. ST. OROIX
the year 1882 was the plaintiff advised that any adverse right or title was claimed by anyone under that conveyance. Under these circumstances I do not think the plaintiff can be charged with laches to defeat his suit. In reference to the claimed defect of parties defendants, it is suffi· cient to say that Henry and Snow are not necessary parties, and it is not a ground of demurrer on the part of these defendants. The demurrer must be overruled.
GRIGGS v. ST. CROIX Co. and others.
(Circuit Court, W. D. Wisconsin. 1884.)
1. INVALID TAX-REV. ST. WIS. 1878, § 1063 -I!'AILURE OF ASSESSOR TO CoMPLY WITH STAY OF PROCEEDINGs-REV. ST. WIS. 1878, § 1210. Where an assessor does not annex to the assessment roll the affidavit required by section 1063, Rev. St. Wis. 187d, the tax is invalid, and it is the duty of a court to stay all further proceedings in the case until a reassessment can be made. Rev. St. Wis. 1878, § 1210. 2. SAME-ApPEAIlS BY ADMISSION UPON RECORD-REV. ST. WIS. 1870, § 1210-STAY OF PROCEEDINGS. Section 1210, Rev. St. Wis. 1878, relating to stay of proceedings, applies to cases where the fact of the invalidity of a tax appears by an admission upon the record.
In Equity. John C. Spooner, for complainant. R. H. Start, for defendant. BUNN, J. This action is brought by Chauncey W. Griggs, a citizen of Minnesota, against the county of St. Croix, in the state of Wiscon- · sin, and James A. Mapes, the county treasurer thereof, to enjoin the sale of a large quantity of lands for the payment of the taxes assessed thereon in the town of Emerald, in said county, for the year 1882, and to have such taxes, amounting to the sum of $1,912.16, declared void, and the lands upon which they were assessfld, lying in said town of Emerald, declared free from the lien and payment thereof. The bill of complaint sets up a very great number of defects in the assessment of the said lands, going to the groundwork thereof, and rendering such assessment void. Among many other defects and irregularites, it is alleged that the assessor wholly failed to assess the lands upon view, as the law required, and that he made the assessment without any knowledge of the value; that all the said lands were wild and uncultivated; that they presented a great variety of surface, some being broken and hilly and of little or no value, while others were level and fertile, well timbered, and valuable for agricultural purposes; and that the assessor valued them all arbitrarily and at nearly