Triangle Land Co. v. Nessen

1. Taxation — Quieting Title — Adverse Claims. One claiming to be owner of an absolute title to lands derived through tax proceedings may not lay the foundation for a suit to quiet title under section 448, 1 Comp. Laws, by alleging a demand upon, and the refusal of, the former owner, out of possession, to disclaim all interest in the lands. 3. Same — Cloud on, Title. In such a case, the record title of such former owner is not a cloud upon the title derived through the tax proceedings.

Appeal from Lake; Rose, J. Bill by the Triangle Land Company against J. O. Nessen and another to set aside a deed and to quiet title. From an order overruling a demurrer to the bill, defendants appeal. Complainant sets out its title to certain land derived from a sale of the land for taxes levied in the year 1900. It avers that the statute notice was duly served upon defendants, who are the grantees named in the last recorded deed, made in 1893 and recorded in the regular chain of title, that thereafter more than six months elapsed, and that said defendants have neither paid nor tendered the money required to obtain a reconveyance of the tax title, nor instituted proceedings to contest the title. It is also further averred: “Your orator further shows that it is informed and verily believes, and therefore charges the truth to be, that the said land is wild, unoccupied, and unimproved land, and mat no person or persons has actual possession of said land, and that your orator is now in constructive possession of said land. “Your orator further charges that, owing to the uncertainty of tax titles and the law relating to the same, your orator has not the highest commercial title to said land, although it is entitled to and absolutely owns said land, but that many persons would hesitate and refuse to purchase said land from your orator and pay an adequate price therefor unless the cloud occasioned by the deed in favor of the said A. J. Dovel and J. O. Nessen be declared null and void by this honorable court as against your orator, and therefore your orator comes into this court to obtain its equitable rights and have its title in and to said land quieted. “Your orator further charges that the said A. J. Dovel and J. O. Nessen have commenced no suit or proceeding at law or in equity against your orator or the said Minnie H. Kellogg to try title to said land, nor have the said defendants herein offered to release their title to said land. “ Your orator further charges that the deed to the said A. J. Dovel and J. O. Nessen is a cloud upon the title of your orator to said land, and tends to depreciate the value thereof, and your orator is unable to sell said land for an adequate price, owing to said conveyance.” The prayer of the bill is that the deed to defendants be set aside and declared void, and complainant decreed to be the sole owner of the land. To this bill defendants interposed a demurrer, the grounds of which are: (1) That complainant has an adequate remedy at law. (2) That it does not appear by the bill that defendants in any manner interfered with complainant’s title or right. (3) That defendants are entitled to have the question of the legality of complainant’s alleged title determined at law. (4) The provisions of the tax law referred to in the bill, limiting the right of defendants to question or defend against complainant’s tax title, are invalid and unconstitutional, “ and complainant obtained no rights whatever under the alleged transfer.” From a decree overruling the demurrer, defendants have appealed.