Herr v. Martin , 90 Ky. 377 ( 1890 )

•JUDGE BENNETT

delivered the opinion oe the court

The appellants allege in their petition and amended petition that they are the owners of a certain tract of .land in Butler county; that they are non-residents of the county, and have not the possession of said land, and the appellee has not the possession of it; that in 1882 they “sold” said land to the appellee, for which he was to pay the sum of six hundred dollars; that they sent a deed of conveyance, acknowledged, &c., to the Morgantown Deposit Bank, to be delivered to the •appellee; but he refused to accept the same, because he had, in the meantime, fraudulently procured the ■deputy sheriff of said county to sell said land for a ■supposed tax of three dollars and seventy cents for 1881; that said .land had not been listed for taxation; that by reason thereof the sheriff had no right to sell the same; that the appellee fraudulently “procured and induced” the said deputy to sell said land for .said tax, &c., and the appellee having purchased the same, to make him a deed therefor. He asks that said deed be set aside, &c.

A demurrer was sustained to the petition and the amended petition upon the ground, it - is supposed, that the appellant, not being in the possession of the land, could not maintain an action to have this fraudulent sale of his property set aside.

The Legislature of this State, in 1854, empowered -.any person having the legal title and possession of land to proceed, by action in equity against any person setting up claim thereto, to establish his title N said land, and, if established, to quiet the same.

There was a similar statute of this State before the ■adoption of the Revised Statutes. These statutes have been construed to confer a right in the nature of an action “quia timet.” Such action has been held by ■some courts to be in favor of persons not in the possession of the land to quiet title to it, where the adversary was not in the possession of it, upon the ground that it was the'only remedy to redress the injury to the title ; but the Legislature of this State has limited the right to institute such action to persons in the possession of the land, and having a legal title to it.

It is supposed that the Legislature limited the right to sue to persons having the legal title and the possession of the land for the reason that none but those possessing the perfect right to the land, to wit — the possession and right to the possession and the legal title — shóuld have the right to institute such action against any person who clouded, or attempted to cloud, his perfect right with an adverse claim of title, which might, in a business point of view, if not in a legal point, seriously affect the market value of his estate, .and be a constant menace to his enjoyment of his perfect right. But said statute does not relate to an ■effort to deprive one of his title by converting it to the party’s use. Such effort is not clouding the other person’s title by asserting a superior hostile title to the property, but is a deprivation of the title by converting the .same to the use of the person seizing it. It is the wrongful seizing his title that is the foundation of the action. Asserting a paramount adverse title to the land is a cloud upon the title of the other party, but to seize his’ title .is to deprive him of his right to his estate. In the first-named case- the person must have the legal title and the possession in order to maintain his action to remove the cloud from his. title. In the latter case he can maintain his action,, although not in the possession, as readily as if the injury were done to the corpus of his estate. Here it is said the appellee wrongfully caused the- appellant’s, title to be seized and sold, and he purchased it. He. asks that this sale be set aside, and his, title be restored to him. By this wrongful act, he: is deprived of his title. He asks a court of equity to set this, sale aside, and restore to him his title. How can he get his title back unless the chancellor does this? It is his only remedy for the wrongful act, and to deny him this remedy is to deny him even-handed justice.

The judgment is reversed, and remanded with directions to overrule the demurrer,