There is no jurisdiction in equity to order a contract to be delivered up and cancelled upon the ground of its illegality, if such illegality appeared on the face of the instrument itself.

Ordinarily a party must wait until his rights have been actually interfered with before he can implead another from whom he anticipates an injury.

As a general rule, if the party claiming relief has a good defence, whether it be of a legal or equitable nature, and if he can only be divested of his rights by some suit in court instituted by his adversary, he must wait until he is thus challenged, when he will be in time to bring forward his defence.

If a claim which is a cloud upon the title to property is based upon a written instrument which is void upon its face, or which does not in its terms apply to the property it 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 danger has his defence always at hand. In such a case a court of equity has determined that no action at the suit of a party apprehending injury will lie.

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. 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.

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.

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. So of the cases to which the bill of interpleader formerly applied.

Beside 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.

If a legal instrument has stated on the face of it the defect which makes it impossible to sue at law, a court of equity will not interfere; but if a legal instrument has no defect on the face of it, but by reason of the circumstances connected with it, it would be inequitable to allow a person to proceed at law upon it, or if there be a good legal defence, not appearing on the instrument itself, which the lapse of time may cause the person chargeable upon the instrument from loss of the evidence necessary for his defence at law to be unable to make available, then the court will interfere and order the instrument to be delivered up and cancelled.

Lapse of time might deprive a plaintiff chargeable upon a document of the means of a defence, and as the defendant may hold it, and profess to hold it, for the purpose of suing at a future time, a court of equity ought to interfere and direct it to be delivered up.

In an action brought to prevent a cloud upon title to property and to vacate certain assessments for street extension the relief sought was an injunction restraining collection, an adjudication declaring the assessment irregular and void, and the vacating and cancelling them of record. The litigation was instituted years after the Supreme Court (New York) had confirmed the reports of the commissioners of estimate and assessment. Relief was refused on the ground that it was too late to raise the question after confirmation of the report of the commissioners, and that no objection to the resolution authorizing the improvements was raised before the Supreme Court during the pendency of the proceedings, its validity and regularity must be deemed to have been conceded. It was also held that the report of the commissioners was a judgment pronounced on a full hearing of the parties, and conclusive in its character as to all questions litigated or which might have been litigated in the proceeding. The same principle precludes a review of the regularity of such proceedings in an action by a party assessed unless

perhaps in case of such fraud or other circumstances as would authorize an action to set aside an ordinary judgment.

The jurisdiction of equity is maintained to the fullest extent for the purpose of setting aside conveyances, apparently fair and legal, but tainted in fact with illegality.

A court of equity may as well enjoin the execution of a tax collector's deed, as decree its cancellation.

Courts of equity will not restrain the collection of a tax illegally assessed in a case where the party has a plain and adequate remedy at law. Where the tax is assessed as a personal charge, or against personal property, the remedy at law is presumably adequate. If the tax is illegal, and the party makes payment, he is entitled to recover back the amount; but where the effect of the sale of realty is to cast a cloud upon the title, equity will interfere to prevent it.

While a court of equity may entertain a suit to remove a cloud upon a title and also to prevent one, in the latter case it must be made to appear that there is a determination, on the part of the defendant, to create the cloud, and it is not sufficient that the danger is merely speculative.

In cases instituted for the purpose of setting aside the certificate of sale upon assessments on the ground of invalidity of prior proceedings, unless the certificates are a presumptive lien under the statute, an action to set them aside as a cloud upon the title cannot be maintained.

Whenever a deed or other instrument exists, which may be vexatiously or injuriously used against a party after the evidence to impeach or invalidate it is lost, or which may throw a cloud of suspicion over his title or interest, and he cannot immediately protect or maintain his right by any course of proceedings at law, a court of equity will afford relief by directing the instrument to be delivered up and cancelled, or by making any other decree which justice or the rights of the parties may require. If an instrument ought not to be used or enforced, it is against conscience for the party holding it to retain it, since he can only retain it for some sinister purpose.

It has been held that a person in possession of land, and

taking the rents and profits, may maintain a bill in equity to quiet his title against one who, as to him, is dispossessed and deseized, but asserts an adverse title under a mortgage, the validity of which is denied by the plaintiff.

A plaintiff out of possession holding the legal title will be left to his remedy by ejectment under ordinary circumstances, but when he is in possession, and thus unable to obtain any adequate legal relief, he may resort to equity.

On the other hand, a party out of possession, has an equitable title, or when he holds the legal title under circumstances that the law cannot furnish him full and complete relief, his resort to equity to have a cloud removed ought not to be questioned.

Not only are accident, mistake, and fraud recognized grounds for relief, but if an instrument ought not to be used or enforced, it is against conscience for the party holding it to retain it for a sinister purpose.

The rule authorizing delivery and cancellation is without any limitation to cases of trust or contract between parties. The right to resort to a court of equity to obtain the cancellation of a conveyance, as a cloud upon the title, was originally based upon the assumption that the legal title to the property had been established by an action at law, and jurisdiction was entertained solely for the purpose of protecting the party in the enjoyment of rights in possession thus legally established, and while the jurisdiction has in the course of time been somewhat extended, it has never been stretched to cover cases brought merely to establish a legal title, or recover possession alone.

When the invalidity of the disputed title appears upon the face of the conveyance, or in any proof which the claimant is required to produce in order to maintain an action to establish it, no suit whatever may be maintained in equity to set it aside, because a title obviously void, does not constitute even a cloud upon the title of the true owner.

Under the jurisdiction and practice in equity, independently of the statute, the object of a bill to remove a cloud upon title, and to quiet the possession of real estate, is to protect

the owner of the legal title from being disturbed in his possession, or harassed by suits in regard to the title; and the bill cannot be maintained without clear proof of both possession and the legal title in the plaintiff.

A statute of Oregon authorized "any person in possession" to bring such a suit; and a statute of Nebraska authorizes an action to be brought "by any person or persons, whether in actual possession or not." By reason of that statute, a bill in equity to quiet title may be maintained in the United States Circuit Court for the District of Nebraska by a person not in possession, if the controversy is one in which a court of equity can afford the relief prayed for. Under that statute, as under the general jurisdiction in equity, it is "the title," that is to say, the legal title to real estate that is to be quieted against claims of adverse estates or interests.

The Supreme Court of Indiana in construing a statute of that State has asserted that "an equitable title was sufficient either to support or to defeat the suit."

One who holds land under grant from the United States, who had done everything in his power to entitle him to a patent (which he cannot compel the United States to issue to him), and is deemed the legal owner, so far as to render the land taxable to him by the State in which it lies, may be considered as having sufficient title to sustain a bill in equity to quiet his right and possession.

A bill will not lie to remove a mere verbal claim or oral assertion of ownership in property, as a cloud upon the title. Such clouds upon title as may be removed by courts of equity, are instruments or other proceedings in writing, which appear upon the records and thereby cast doubt upon the validity of the record title.

Any person liable to have a claim made against him at law, and having a good defence to it, may bring the matter before a court of equity.

For a complainant, who has nothing but mere adversary possession, to say that a good and valid record title of the original owners, ante-dating his by many years and which has