¶1The only question in this case is whether the district court has jurisdiction. The constitution (art. V, sec. 8) provides that “the district court shall have original .jurisdiction . . . of all suits for the trial of title to land, and for the enforcement of liens thereon; . . . and of all suits,, complaints, or pleas whatever, without regard to any distinction between law and *575equity, when the matter in controversy shall be valued at or amount to $500, exclusive of interest.”
¶2As the amount in controversy in this suit, exclusive of interest, was only $250, and as there was no lien to be enforced, we must rest the jurisdiction upon the ground that there is, some how or other, involved in this controversy, a trial of the title to land. A majority of the commission hold that there was not necessarily involved in the cause any controversy about the title to land, and consequently that the district court had no jurisdiction. It is true that the plaintiff tenders the deed in open court and prays that it be canceled, but was that necessary to his relief? And if it was not necessary, would such an unnecessary prayer give the court jurisdiction? I should think not.
¶3Bills in equity for the cancellation and delivery of instruments belong to the class of bills quia timet, and where the instrument tO' be canceled conveys title to real estate, or constitutes an incumbrance upon it, it is probable that in most if not in all proper cases for cancellation, the jurisdiction would be in the district court. "Where, for instance, a deed or other instrument of title is outstanding in the hands of a third person, which may threaten the plaintiff’s title, or may constitute a cloud upon it, he may call such party into court and ask that the instrument be delivered up to be canceled. So, also, where the defendant resists a suit for specific performance on the ground of failure of title.
¶4The cases of this kind are numerous and of great variety, and we cannot discuss them here. But the case before us is not like any of these. Here the plaintiff is in possession of the instrument which he asks to have canceled. Certainly it can do him no harm while-in his possession, and its cancellation could do him no good. The gravamen of his complaint is that he has paid to the defendant a large amount of money, or at least property representing a large amount in value, and that by the fraud of the. defendant he has received in return property of no value. He makes no complaint about the title. That may be very good; but he bargained for something more which he did not get. The consideration, then, for which he paid his money has wholly failed. He alleges in his amended petition that before bringing suit he had tendered back to the defendant his-deed, and had offered to reconvey to him the land, which had been refused. How if he had upon the trial filed in the cause a reconveyance of the land to the defendant, we see no reason why the-court might not have rendered a judgment in -his favor upon the-verdict without rescinding the contract or canceling the deed. For-*576when the plaintiff thus deposited in court for the defendant the deed of reconveyance, he would have done for the defendant all that a •decree of cancellation could have accomplished.
¶5The decree could do no more than revest in the defendant the title which he had conveyed to the plaintiff. The reconveyance would do exactly the same thing. It is true that, if the plaintiff had not proffered such a deed, the defendant might have objected to his having judgment; but when the tender is properly made, the decree •of cancellation and rescission is of no benefit to either party, and is entirely superfluous.
¶6We conclude that upon the facts of this case the district court had no jurisdiction, and our opinion is that the judgment should be reversed, and the cause remanded that it may be transferred to the •county court.
¶7Reversed and remanded.
¶8[Opinion approved June 8, 1883.]