but the evil would be much greater if every person who could show that what he claimed to be his rights was questioned by some other person could call such person into court and compel him to disclaim or to litigate the matter in advance. Courts have commonly occupation enough in determining controversies which have become practical, without spending time in hearing discussions respecting such as are merely speculative or potential. The most prominent of the inconveniences referred to have been remedied by legislation or by the settled practice of the courts. Thus, a party claiming to be the owner of lands may, after a certain length of possession on his part, compel the determination of the claim of any other person to the title of such land: 2 R. S. 312; Laws 1848, c. 50; Code, sec. 449. So of the cases to which the remedy by bill of interpleader formerly applied.

Besides these cases, there is a principle of equity which remains in force, notwithstanding the confusion of remedies, by which a person may in certain cases institute a suit to remove a claim which is a cloud upon the title to his property: Hamilton v. Cummings, 1 Johns. Ch. 517; Story's Eq., secs. 700 et seq. If, however, the claim is based upon a written instrument which is void upon its face, or which does not in its terms apply to the property it is claimed to affect, there seems to be no reason for entertaining a litigation respecting it before it is attempted to be enforced, for the party apprehending the danger has his defense always at hand. In such a case, this court has determined that no action at the suit of the party apprehending injury will lie: Cox v. Clift, 2 N. Y. 118. The same reason applies to cases where the claim requires the existence of a series of facts or the performance of a succession of legal acts, and there is a defect as to one or more of the links. The party must, in general, wait until the pretended title is asserted. This principle is also very well settled by authority: Van Doren v. Mayor elc. of New York, 9 Paige, 388; Mayor etc. of Brooklyn v. Merserole, 26 Wend. 132. In both these classes of cases the party whose estate is questioned may naturally wish to have the matter speedily determined, as he may in the mean time suffer inconveniences, and even actual damage, on account of the discredit attaching to his title by reason of the unfounded claim. But unless the circumstances are such as to sustain an action for slander of title, the law regards the injury too speculative to warrant its interference. I am not able, therefore, to concur in the views of the city court of Brooklyn, contained in the opinion which has been laid before

us, to the effect that in every case where an instrument in the hands of another person is calculated to induce the belief that the title of the plaintiff is invalid, an action will lie to set it aside. In this case, therefore, if Onderdonk, the purchaser at the corporation sale, in asserting his title after he had perfected his purchase, would be obliged to prove the laying of the assessment, as well as the other proceedings anterior to the conveyance, I should be of opinion that the complainant had not established a case for relief. Neither the proceedings of the corporation nor the conveyance to Onderdonk, when obtained, would constitute such a cloud upon the plaintiff's title as is contemplated by the rule. It would be impossible for Onderdonk to recover the possession of the lots, for he could not establish the existence of the assessment, and the plaintiff might rest in perfect safety. But the orty-fifth section of the charter of the city of Brooklyn provides that the conveyance under such a sale as was made in this case, which is to be executed under the corporate seal, shall briefly set forth the proceedings had for the sale of the premises, and that by force thereof the purchaser shall be entitled to the possession, and to the same remedy to recover such possession as is provided by law for the removal of tenants. who hold over after the expiration of their terms, and that such "conveyance shall, in any such proceeding, be deemed prima facie evidence of the facts therein recited and set forth:" Laws 1834, p. 108. A conveyance properly prepared under this provision would recite the ordinance or resolution of the common council imposing the assessment, and such recital would be presumptive evidence of the existence of that ordinance. It is true, the owner of the land would be at liberty to disprove it, if he could obtain the evidence; but the statute contemplates that the purchaser shall be furnished with a document bearing on its face prima facie evidence of a title in him, and can only be impeached by proof aliunde of the falsity of its recital. The authorities to which I have referred admit that in such cases the party is not compelled to take the hazard of the loss of his evidence, but may, while it is attainable, call the party holding such a document into court and have the matter determined at once, so that the cloud upon his title may be dispelled. If the plaintiff would be entitled to set aside a conveyance, upon the facts stated in the complaint, if one had been obtained, then, inasmuch as the purchaser is seeking to obtain such a conveyance, and the corporation of Brooklyn is ready to execute one, as is apparent from the terms of the certificate of sale, it is right

that they should be enjoined from proceeding further towards that object. For the single reason, therefore, that the statute gives to the conveyance the effect which has been mentioned, I am of opinion that the city court was right in overruling the demurrer and giving the plaintiff the relief which he sought. Judgment affirmed

BILLS TO REMOVE CLOUDS ON TITLE: See Lyon v. Hunt, 46 Am. Dec. 216; Banks v. Evans, 48 Id. 734; Downing v. Wherrin, 49 Id. 139. The principal case is frequently cited as an authority upon this subject. It has been often held that where a certificate of sale, or a deed of property illegally sold to pay an assessment or tax, is valid on its face, requiring extrinsic evidence to show its invalidity, or is made by statute presumptive evidence of the regularity and validity of the prior proceedings, so that the mere presentation of such certificate or deed would make out a prima facie title, a bill in equity will lie to remove it as a cloud on the title: Lewis v. Buffalo, 29 How. Pr. 339, 340; Mann v. Utica, 44 Id. 338; Beach v. Hayes, 58 Id. 21; Marsh v. Brooklyn, 2 Hun, 143; S. C., 4 Thomp. & C. 415; Astor v. Mayor etc. of New York, 5 Jones & S. 581; Hatch v. Buffalo, 38 N. Y. 277; Allen v. Buffalo, 39 Id. 390; Crooke v. Andrews, 40 Id. 549; Hassan v. Rochester, 67 Id. 536; Berlew v. Quarrier, 16 W. Va. 163; Dean v. Madison, 9 Wis. 406, all approving and following the principal case. Thus, where an assessment was illegally made to one not the owner or occupant of property, but the statute made the certificate of sale a prima facie lien thereon, it was decided that an action lay to remove or cancel it as a cloud on the title: Crooke v. Andrews, 40 N. Y. 549. So, where an assessment for grading a street was invalid for want of a certificate that an application had been made therefor by a majority of the adjacent property owners: Hatch v. Buffalo, 38 Id. 277; Allen v. Buffalo, 39 Id. 390. The former of the two cases last cited was said by the court to stand quatuor pedibus with the principal case. But a suit or action will not lie to cancel an invalid assessment or tax which is not prima facie a lien upon the plaintiff's property: Clark v. Davenport, 95 Id. 484; Sanders v. Yonkers, 63 Id. 492; Townsend v. Mayor, 77 Id. 546; or to remove or cancel a tax certificate or tax deed which is void on its face or is not made prima facie evidence of the regularity of the proceedings: Overing v. Foote, 43 N. Y. 293; Head v. James, 13 Wis. 643. If the defect invalidating the assessment, tax, certificate, or deed appears on the face of proceedings which the purchaser thereunder must himself produce to prove his title, there is no cloud: Overing v. Foote, 43 N. Y. 293; Guest v. Brooklyn, 69 Id. 514, 515. So, where the statute under which the assessment or tax is levied is unconstitutional, as that is a defect of which the purchaser must take notice at his peril: Townsend v. Mayor, 77 Id. 546.

In Marsh v. Brooklyn, 59 N. Y. 284, 285, it was held, reversing S. C., 2 Hun, 142, 4 Thomp. & C. 413, that under the charter of Brooklyn of 1854, making a deed on a sale to pay a municipal assessment prima facie evidence merely of the validity of the proceedings "had for the sale," and not of the validity of the assessment or other proceedings anterior to those relating to the sale, a deed for an assessment to one not the owner would constitute no cloud upon the title, and no action would lie to remove it, since the purchaser must show a valid assessment to make out his title; and the principal case was distinguished as having been decided under the charter of 1834, under which a deed made upon such a sale entitled the purchaser to possession. A

similar decision was made, and the same distinction drawn, in Guest v. Brooklyn, 69 N. Y. 513-515.

The doctrine of the principal case has also been frequently applied to other than tax cases. Generally, when a conveyance of any kind, though invalid in fact, is valid on the face of it, and will require extrinsic proof to overcome it, a bill will lie to cancel or remove it as a cloud on the title of the true owner. Thus where, owing to the presumption of the regularity of official acts, a lease made by public officers is prima facie valid, but in fact void, because certain statutory prerequisites have not been complied with, the owner of property whose title is clouded thereby may maintain an action to have it adjudged void: Mayor v. North Shore etc. Co., 9 Hun, 622. So where a forged deed was put on record because of a false certificate of acknowledgment thereto by an authorized public officer, it was held to be a cloud which equity would remove: Remington Paper Co. v. O'Dougherty, 81 N. Y. 483. So it has been held that where judgments are apparent liens on property, but have been in fact paid, a subsequent judgment creditor may maintain an action to have them canceled: Shaw v. Dwight, 27 Id. 247. So where a husband had the apparent title to property which was really his wife's, and it was sold on execution against him, and a certificate of sale issued, it was decided that a suit or action was maintainable by the wife to remove it: Tisdale v. Jones, 38 Barb. 527. And where a mother purchased certain realty, and directed the deed made to herself, with a proviso that her son should have the property upon her death upon his paying a certain annual sum for her maintenance, but the deed was made by mistake to her in trust for her son, and was afterwards returned and destroyed, and a deed made to her in fee, and the land was subsequently sold on execution against the son, and a certificate of sale issued, it was held that a bill would lie to remove it as a cloud: Fond v. Sage, 48 N. Y. 179. So where a deed was executed by a feme covert in blank, with parol authority to her husband so to fill it as to release her dower and homestead right, and it was afterwards so filled up, to which she assented, a bill by her to remove it as a cloud on her title was held maintainable: Burns v. Lynde, 6 Allen, 312. And where a widow was seeking to have dower adineasured in certain land sold by the executors of her husband, of which she had enjoyed the proceeds, in accordance with a direction in the will, jurisdiction to remove or prevent the cloud was maintained: Wood v. Seely, 32 N. Y. 113, 117. And the principal case was cited to the general proposition that where a plaintiff claims that he has a valid legal defense against an apparent legal title, but the evidence may be lost by lapse of time, or where proceedings affecting the title to his realty are prima facie valid, but void in reality, equity has jurisdiction to remove the cloud.

On the other hand, unless the conveyance or proceeding which is alleged to cloud the plaintiff's title is valid on its face, requiring extrinsic evidence to show its invalidity, there is no jurisdiction to remove the pretended cloud, but the owner will be left to defend himself at law when the spurious title is asserted: Ewing v. St. Louis, 5 Wall. 419. Thus a judgment void on its face is not a cloud on title which equity will remove: Kendall v. Hodgins, 7 Abb. Pr. 321; S. C., 1 Bosw. 670. So of a trust deed suspending the power of alienation and the absolute ownership beyond the period allowed by law, and therefore void on its face: Levy v. Hart, 54 Barb. 258. So of an executory contract of sale made by one assuming to act as the plaintiff's agent, but without authority, for the defendant would be compelled to prove the authority in order to enforce the contract: Washburn v. Burnham, 63 N. Y. 134. Equity will interfere, in such cases, only where the law does not afford

adequate protection: Albany etc. R. R. Co. v. Brownell, 24 Id. 348. The cloud sought to be removed must exist without right to give jurisdiction to remove it, and generally, unless an action for slander of title would lie, the injury is too speculative to warrant the interference of a court of equity, and the party must wait till the adverse title is asserted: Ryerson v. Willis, 81 Id. 281. Equity will not interfere to prevent speculative injuries, and a bill to remove a cloud on title must therefore show the nature of the defendant's claim: Peck v. Brown, 26 How. Pr. 369; S. C., 2 Robt. 128. In all the foregoing cases the principal case is cited, and its doctrine approved.

EQUITY WILL PREVENT CLOUD ON TITLE, as well as remove one; and a suit or action may therefore be maintained to enjoin a sale for an illegal tax or an assessment, whenever the deed would be presumptive evidence of title; Beach v. Hayes, 58 How. Pr. 21; see also Guy v. Hermance, 63 Am. Dec. 85. So a bill will lie to restrain the negotiation of municipal bonds whereby the title to the plaintiff's land would be clouded, if the bonds and proceedings, though in fact invalid, would create a prima facie liability: Springport v. Teutonia Savings Bank, 75 N. Y. 404, both citing the principal case. Other cases in which the preventive jurisdiction has been exercised are mentioned in the preceding section of this note. But in Clark v. Davenport, 95 Id. 485, it was held that an injunction would not lie to prevent the state controller from executing a deed after an illegal tax sale where he had issued a certificate of sale, there being no allegation of any demand on him to cancel the sale, and no averment that he had refused to cancel it, or was threatening a conveyance, it appearing that he was prohibited by law from executing the deed if the sale was illegal; and the principal case was distinguished as going upon the ground that the city was ready to create a cloud upon the plaintiff's title, and was about to do so, as was apparent from the certificate. So in Sanders v. Yonkers, 63 Id. 492, it was held that a bill would not lie to vacate an illegal municipal assessment, and to restrain the execution of a lease thereunder, in accordance with the statute, although it was alleged that the lease would be presumptive evidence of title, but there was nothing in the charter making the assessment, before a lease, prima facie evidence of its own regularity, and the complaint containing no allegation that the assessment was regular on its face, or that there was any record making it prima facie evidence, or that any lease was threatened.

Suits to remove clouds from titles must not be confounded with actions to determine adverse claims authorized by section 738 of the California code of civil procedure. That section is as follows: "An action may be brought by any person against another who claims an estate or interest in real property adverse to him, for the purpose of determining such adverse claim.”

A proceeding under this section is equitable in its nature: Brandt v. Wheaton, 52 Cal. 430. The plaintiff need not have an estate in fee: Pierce v. Felter, 53 Id. 18. It is not necessary that the adverse title be shown to be a cloud, or that its character be stated in the complaint. It is sufficient that the plaintiff has some estate or interest in the property, and that defendant claims some estate or interest adverse to him: Curtis v. Sutter, 15 Id. 262; San Francisco v. Beideman, 17 Id. 461; Stoddard v. Burge, 53 Id. 399. A complaint is undoubtedly sufficient under this statute which avers that plaintiff is the owner of certain real property (describing it), and that defendant claims an estate or interest therein adverse to plaintiff, which claim is without right, and that defendant has estate, right, title, or interest in such property: Rough v. Simmons, 4 West Coast Rep. 831.