Castro v. Barry

Hayne, C. —The complaint in this case alleged in substance that the plaintiff was the owner of certain real property; that the defendant claimed an interest therein adverse to the plaintiff; that such claim was without right, and that the defendant had no right, title, or interest whatever in the property. There were other allegations ^hich will be noticed below. The prayer was, that defendant be required to set forth the nature of his claim, that it be adjudged to be void, and that defendant be enjoined from asserting it. The trial court found the above allegations to be true. Judgment was entered for the plaintiff, and the defendant appeals.

It is contended for the appellant, in the first place, that “an action to quiet title or to remove a cloud upon title will not lie where the facts alleged, if true, would not [445]legally affect the plaintiff’s title.” But in this the learned counsel overlooks the distinction between actions to determine adverse claims, which are provided for by the Code of Civil Procedure, and which in this state are commonly referred to as actions to quiet title,' and suits to have an instrument canceled, or adjudged to be void, which are usually called actions to remove a cloud.

Suits to have an instrument canceled, or adjudged to be void, were quite common in the old chancery practice, and constituted one of the applications of the principle quia timet (2 Story’s Eq. Jur., sec. 701.) This suit is preserved by the Civil Code, which has the following provisions on the subject:—

“ Sec. 3412. A written instrument, in respect to which there is a reasonable apprehension that if left outstanding it may cause serious injury to a person against whom it is void or voidable, may, upon his application, be so adjudged and ordered to be delivered up or canceled.

“Sec. 3413. An instrument, the invalidity of which is apparent upon its face, or upon the face of another instrument which is necessary to the use of the former in evidence, is not to be deemed capable of causing injury, within the provisions of the last section.”

In this kind of action, therefore, it is expressly provided by statute that if the instrument is void upon its face, or when construed with another instrument with which it is necessarily connected, the relief will not be granted. This provision is the embodiment in statutory form of an old and well-settled rule of equity." And as a matter of course, in order to obtain the relief it is necessary that the complaint should state a case within the rule. In the language of Sanderson, J., in Hibernia S. & L. Soc. v. Ordway, 38 Cal. 681, “In an action to remove a cloud, there can be no question but that the facts which show the apparent validity of the instrument which is said to constitute the cloud, and also the facts showing its invalidity, ought to be stated.”