[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 175
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 176 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 178 It is claimed by the counsel for the appellants that, upon the facts of this case, an action to remove a cloud upon the title to land cannot be maintained; and this raises the principal question for our consideration.
It is impossible to lay down rules which will cover all the *Page 179 cases in which a court of equity will interpose its jurisdiction to remove a cloud upon the title to real estate. This jurisdiction does not rest upon any arbitrary rules, but depends upon the facts of each case; and whether it shall be exercised or not, is generally in the discretion of the equity court. There is one rule, however, which is fully settled and now uniformly followed in this State; and that is, if the instrument claimed to constitute the cloud is void upon its face, a court of equity will not interfere to remove it, because such an instrument can work no mischief; and the same is true, although the invalidity does not appear upon the face of the instrument, if it necessarily appears in some one of the links of title which the claimant would have to establish in order to give the instrument force and effect.
A few cases will illustrate the rule. In Cox v. Clift (2 N Y, 118), it was held, that inasmuch as a purchaser at a sale by the attorney-general, under a mortgage executed to the people of the State, must claim through the advertisement and the sale, although the deed given in pursuance of such sale should profess to convey land embraced in the mortgage but not included in the advertisement and sale, there was no occasion for the owner of such land to resort to a court of equity to remove the cloud from his title.
There are cases of tax deeds which were an apparent cloud upon title, in which the courts refused to interfere, because it would be necessary for the claimants under the deeds to prove certain preliminaries which would show the deeds to be invalid. But when the statute makes such a deed prima facie evidence that a valid assessment has been made, a court of equity will remove it, in a proper case, as a cloud upon title. (Scott v. Onderdonk,14 N Y, 9; Hatch v. City of Buffalo, 38 id., 276.) In Ward v.Dewey (16 N.Y., 519) a father died seized of real estate, leaving two children, his heirs-at-law, who became tenants in common of the real estate. One of them executed a mortgage upon the whole real estate, and it was held that this did not create a cloud upon the title of the co-tenant which a court of equity would remove, for *Page 180 the reason that a claimant under the mortgage title would have to prove the seizin of the father and the descent to the two heirs, and it would thus necessarily appear that the mortgage was only a lien upon an undivided half of the real estate. In Wood v.Seely (32 N.Y., 105) a testator, by will, authorized his executors to sell his real estate; and in case they did so, the will gave to his widow the use of one-third of the proceeds of such sale. The executors sold the real estate, and the widow accepted and enjoyed the use of the proceeds of such sale for a number of years. Afterward she proceeded to procure the admeasurement of dower in the real estate, and threatened to bring ejectment to recover the same. It was held that she was estopped from setting up any claim to dower in the land in the hands of an innocent grantee who was permitted to receive the title to such land in her presence, with the assurance that her claim to dower therein was extinguished, and that she should be perpetually enjoined from enforcing her claim. It was held that the proceedings on her part, constituted a cloud upon the title to the land, which justified the commencement of an action to quiet the title, for the reason that she could at all times make out her claim to dower by proving the seizin of her husband, his death, and the proceedings for admeasurement.
In the light of these cases, it seems to me quite clear that this is a case where an action to remove a cloud upon title is maintainable. The defendants Sage and Fonda claim that the deed executed in December, 1857, by Vary was in such form, and so delivered as to vest some interest in the land in Franklin J. Fonda, and this interest Sage claims to have purchased at the sheriff's sale, under the execution against him, and he threatens to perfect and enforce his title. His certificate and deed will not be void upon their face. They will be in the usual form and apparently valid. Their invalidity will not necessarily appear in anything which Sage will be obliged to prove in order to assert his title against the plaintiff. To assert his title he would have to prove the execution and delivery of the deed from Vary to the plaintiff, in *Page 181 trust for Franklin J., and the judgment execution and sale, and, having done so, he would be entitled to recover unless the plaintiff could avoid the effect of that deed by showing that it was destroyed, and a new deed taken, under such circumstances as to leave no interest in the land in her son and to vest the whole title in her. These circumstances are not matters of record but rest in parol, and some of the witnesses to them are dead, and others are aged. Under such circumstances, how can it be said that the deed from the sheriff, with an assertion and claim of title under the deed from Vary, would be entirely harmless? It has never been held that, to constitute a cloud upon title, there must be a title upon record apparently valid. It is sufficient if there be a deed, valid upon its face, accompanied with a claim of title based upon facts showing an apparent title under such circumstances that a court of equity can see that the deed is likely to work mischief to the real owner of the property. In such a case the court will exercise its preventive justice upon the doctrine quia timet, and will quiet the title.
The only other question to be considered is whether Franklin J. Fonda, by the deed of December, 1857, acquired any interest in the land which the defendant Sage purchased at the sheriff's sale. The court at General Term held, upon the facts found by the referee, that the deed was never delivered to and accepted by the grantee, so as to divest the grantor of his title. This conclusion was reached by holding that neither the plaintiff nor Franklin J. Fonda had ever really accepted the deed as it was drawn. But I prefer to place the decision of this question upon other grounds. The plaintiff purchased and paid for the land with her own means, and directed Vary to make and execute to her a deed conveying the land to her, with a provision that if her son should pay her $200 per year, during her life, he should have the property after her death. But the deed was so drawn, by mistake, as to grant the land to her in trust for her son upon the conditions found by the referee. When she and her son learned of the contents of the deed, he declined to accept the *Page 182 same or comply with the condition therein mentioned, and with his assent she took the deed to Vary and informed him of the mistake, and demanded and received a new deed, and canceled and destroyed the first one. This was nearly four years before Helen Y. Fonda recovered her judgment; and although Franklin J. Fonda soon thereafter came of age, he never claimed any interest in the land, and never paid or offered to pay the $200 per year mentioned in the deed. By the payment of the purchase-money, the plaintiff became the equitable owner of the land, and she had the right to dictate who should have the beneficial interest therein, and until her intention had been effectuated so as to vest an interest in her son the title was within her control, and she could give it any direction she chose. When she found that the deed was so drawn by mistake as not to carry out her intention, even if it had gone so far that she could not correct the mistake by destroying the deed and taking another, she could have invoked the aid of the court to cancel and set aside the first deed, and establish her right under the second. Upon all the facts as they appear, she remained at least the equitable owner of the land, with a right superior to that of Sage acquired under the sheriff's sale; hence the court in this suit, with all the necessary parties before it, can establish the plaintiff's title under the second deed, and annul any claim of title under the first deed.
I have, therefore, reached the conclusion that the judgment should be affirmed, with costs.