Page v. Kennan , 38 Wis. 320 ( 1875 )

Cols, J.

It is manifest that the complaint in this case is bad within the rule laid down in Wals v. Grosvenor, 31 Wis., 682. It was there held that a complaint under section 29, ch. 141, R. S., should state facts showing the nature and invalidity of the defendant’s claim — in other words, must present a prima facie case for relief, — otherwise a court of equity would not interfere. In that case it was said that the complaint “should disclose the nature of the defendant’s claim which has a tendency to throw a cloud over the title, and state such facts and circumstances in respect to such claim as show its invalidity.” p. 684. It is suggested on the brief of counsel for the plaintiff, that this was obiter ; but if the case is examined, it will be seen that it was the very point in judgment, upon which the demurrer was sustained. The rule laid down in Wals v. Grosvenor is elementary. “Every fact essential to the plaintiff’s title to maintain the bill, and obtain the relief, must be stated in the bill, otherwise the defect will be fatal.” Story’s Eq. PL, § 257. It is said that it is imposing an unnecessary burden upon the plaintiff to compel him to state the nature of the defendant’s claim and its imperfections. There is certainly no force in that objection when the facts showing the invalidity of the defendant’s claim are matters of record and necessarily within the reach of the plaintiff. If the defendant founds his claim upon some title not of record, nor within the knowledge of the plaintiff, an allegation of that fact in the complaint might be deemed sufficient. That point may, however,- be left for consideration when it shall arise. In the complaint before us not a single fact is stated to show the invalidity of any one of the deeds under which the defendant claims an interest in the premises. It is alleged that the defendant Loa Kennan claims the lands, or different tracts, under three several tax deeds, a sheriff’s deed, and a quit-claim deed from one Roberts. It may be said that it appears that the statute has run against the tax deeds; but this we can hardly assume, because the lands might have been vacant and unoccupied when the deeds were recorded, and up to the time the plaintiff took actual possession, November 1, 1869. If the lands were vacant and unoccupied before 1869, the statute would run in favor of the grantee in the tax deeds. Besides, no fact is stated to invalidate the sheriff’s deed; and it does not appear whether Roberts was connected with the original title or not.

It is true, there is a general allegation that the pretended claim or lien of the defendant Loa Kennan upon or to the lands “is without foundation in law,” and that she “has no legal claim or lien or title ” to the premises. But this is stating a mere legal conclusion, and not stating facts.

It is alleged that the defendant Loa Kennan has for the period of three years committed acts of trespass upon the lands by virtue of her liens. Why has not the plaintiff resorted to his action at law to determine the question of title and the legality of the defendant’s acts ? He might have brought his action of trespass, and established his right at law. Section 29 was not intended to furnish a remedy to try conflicting titles to land. A court of law is a more appropriate tribunal, and, indeed, the proper forum for the determination of such questions. If the defendant is a mere wrongdoer, invading the plaintiff’s rights and possession, he has a complete remedy at law. That remedy is ample and sufficient for the protection and vindication of bis rights. A party seeks the aid of this statute because he fears some future probable injury to his rights under a claim in the hands of one who refuses, perhaps, to assert it or submit it to the determination of a court of law. But when the claim is asserted and the plaintiff’s rights and possession are invaded, the legal remedies afford him every protection. We have carefully examined the supplemental argument of the learned counsel for the plaintiff in support of the. position that the complaint is sufficient. He contends that the rule laid down in Wals v. Grosvenor defeats the whole object of the statute, by requiring the plaintiff to state facts showing the invalidity of the defendant’s claim. Our statute, unlike that of some of the states, to the decisions of whose courts we were referred, does not prescribe what the complaint shall contain, and we are remitted to the principles of equity pleadings to test its sufficiency. And, according to these rules and principles, we think the complaint is clearly bad.

It follows that the demurrer should have been sustained.

B1' 'he Court.- — ■ The order of the circuit court is reversed, .e cause remanded for further proceedings according to

!YAN, 0. J., took no part in the decision of this cause.