Upon the merits of this case I find but little difficulty. The plaintiff purchased the land in question of her father, and paid for it with her own money. By an error of the draftsman, the deed delivered to her conveyed the property to her in trust for her son, upon certain conditions Not being a trust recognized by our statute, it is said that this vested the title in the son. The plaintiff was ignorant of the contents of the deed, and did not make the discovery for several months. When discovered, she returned *Page 183 the deed to her grantor and demanded that one should be made conveying the title to her, according to the original agreement. This was with the concurrence of her son, who refused to take under the conditions of the deed as originally drawn. At this time no person had any claim against the son. The claim of the defendants against him did not arise until nearly four years thereafter, and none was anticipated at this time. The original deed was, therefore, destroyed and a new one made, under which the plaintiff has ever since held the property. The son was at this time under age, but soon reached his majority, and has never since accepted the deed or a title under it. Under these circumstances, I agree with the learned judge who delivered the opinion of the court below, that the first deed was never so delivered as to transfer the title to the grantee therein named. There was a delivery, in fact, as found by the judge, but not a valid and effectual delivery, which passed the title. The deed was not what the grantee understood and expected it to be. No other rights intervened, and the parties were at liberty to cancel the first deed and to make another, according to the agreement between them.
I have had some doubt whether an action to remove an alleged cloud upon the title could be maintained under the circumstances of this case. It is argued that such an action can only be sustained where the claimant has a prima facie record title, which the real owner must call in extrinsic evidence to overthrow. If the same record which is relied on to establish the claimant's title will of itself show that he was not such owner, then the action cannot be sustained. In the case before us there is no record evidence of the original title under which the defendants claim. To establish a title, they must give parol evidence of the execution and delivery and contents of the first deed. This they claim to be able to do, and evidence on that point was given by them on the trial of this action. In such a case, is the owner at liberty to anticipate the controversy, compel a trial and decision when he is prepared to meet it and has his evidence at hand, or must he *Page 184 wait the motion of the claimant, and be confined to a defence to an action thereafter to be brought, when the claimant is ready and his own witnesses may be scattered or dead? The court below held that he might anticipate the contest and compel a determination when he was himself prepared to meet the question.
A distinction is sometimes made between controversies involving the title to real estate and those involving only the title to chattels, or a claim of personal responsibility. A claim of the latter class it is supposed will inflict but little injury, while in the former case the value of real estate may be seriously impaired by such a cloud upon the title. Whether courts of equity will interpose to set aside a bill of exchange, promissory note or bond, etc., to which there is perfect defence at law, has been much doubted. (See Ward v. Dewey, 16 N.Y., 525, SELDEN'S opinion.) The fact that there is a perfect defence at law is not regarded as an objection to seeking relief in equity, where the title to real estate is involved. (Id.) The question in such case is, simply, does the claim create a cloud upon the title? An examination of the cases in the courts of this State sustains the conclusion that a claim like the one made by these defendants does create such a cloud. In other words, it is not necessary, to give jurisdiction, that the claim should be based upon record evidence, which record evidence gives prima facie evidence of title in the claimant. It is sufficient that the sheriff's deed to these claimants may be made the source of good title to them, when aided by parol proof of an unrecorded deed to the defendants in the execution. Thus, in Ward v. Dewey (supra), PRATT, J. (p. 523), in discussing the law, puts the case that the purchaser under a mortgage foreclosure should bring an action to obtain possession of the premises. Title, he says, must be proved in the mortgagors. Without proof of such title, there could be no cloud. In the case before him he asserts that such attempted proof would immediately show that there was no title. The defect in the claimant's title would at once appear from such attempt. Hence he *Page 185 holds, and with him the court, that the action could not be maintained. It is a legitimate conclusion from this reasoning that, if such proof on the part of the claimant would have shown title in the mortgagors, the action to remove the cloud would have lain. Such is the fact in the case now in hand. The claimant's proof showed a title in the son, under whom they claim. In 1858, Mr. Vary executed and delivered a deed, which, in its terms and by law, passed the title to the son. Proof of this would be all that the claimants would require, and all that they would give to make out their title. The subsequent evidence by which an error was established, the deed surrendered and a new one given, would be new matter, to be established by different witnesses, and a distinct, independent defence to be made out by the plaintiff as best she might. In the same case of Ward v.Dewey, SELDEN, J., says (pp. 529, 530), "It is to be inferred from the cases, as well as from the natural import of the term, that anything is a cloud which is calculated to cast doubt or suspicion upon the title, or seriously to embarrass the owner either in maintaining his rights or disposing of the property." The mere existence of a deed, accompanied by no circumstances giving it apparent validity, he says, would not operate as a cloud upon the title. "But (he adds) it may be safely assumed that when such circumstances exist, in connection with a deed, as not only give to it an apparent validity, but will enable the grantor to make out a prima facie title under it, a cloud is created. It cannot be necessary, to constitute a cloud, that the conveyance should be sufficient, per se, without being connected with any other evidence, to make out a prima facie title, because no conveyance, even if valid, could do this." It is always necessary, he says, to show some sort of title in the grantor. Title from the State must be shown, or possession by the grantor. In all such cases, where title is thus made out by additional proof, he holds that a cloud upon the title is created, which justifies the filing a bill to remove it. Although a dissenting opinion, the argument of Judge SELDEN is marked with his usual ability, and *Page 186 there was no dissent upon the point from which I have quoted.
In The N.Y. and N.H.R.R. Co. v. Schuyler (17 N.Y., 599), COMSTOCK, J., uses this language: "If the invalidity plainly appears on the face of the writing, so that no lapse of time nor change of circumstances can weaken the means of defence, it is held that no occasion arises for a suit in equity to decree its cancellation. And the doctrine now is that such instruments do not in a just sense even cast a cloud upon the time or interest, or diminish the security of the party against whom the attempt may be made to use them. If, on the other hand, the invalidity does not appear on their face, the jurisdiction is not confined to instruments of any particular kind or class. Whatever their character, if they are capable of being used as a means of vexation and vengeance, if they throw a cloud upon title or disturb the tranquil enjoyment of property, then it is against conscience and equity that they should be kept outstanding, and they ought to be canceled."
In Scott v. Onderdonk (14 N.Y., 14), after discussing the question generally, DENIO, Ch. J., says: "If, however, the claim is based upon a written instrument which is void upon its face, or which does not in terms apply to the property it is claimed to affect, there seems to be no reason for entertaining a litigation respecting it before it is attempted to be enforced, for theparty apprehending danger has her defence always at hand. In such a case no action will lie." But in a case like the one before us, the defence is not always at hand. The witnesses may be scattered, the parties may die, and the means of defence depending on the evidence of witnesses be entirely lost. It is plain that the learned judge did not intend to exclude jurisdiction in a case like the present.
In Crooke v. Andrews (40 N.Y., 547), Judge WOODRUFF excludes jurisdiction in those cases only where the invalidity of the claim "must appear on the face of the very documents or proceedings on which the alleged claimant must rely, and *Page 187 which he must produce," citing Hatch v. City of Buffalo (38 N Y, 276); Allen v. City of Buffalo (39 id., 386).
In Wood v. Seely (32 N.Y., 114), the remarks of COMSTOCK,supra, are quoted with approbation, and at page 117, DENIO, Ch. J., says: "The allegations upon which the equity is based rest upon the oral testimony of witnesses who may die or whose testimony it may hereafter be impracticable to procure. In such cases the party expecting to be challenged may take the initiative by bringing an action in the nature of a bill quiatimet. (Scott v. Onderdonk, 14 N.Y., 9.)" The general jurisdiction, to be regulated by circumstances, has been exercised by the courts of this State since the year 1815. (Hamilton v. Cummey, 1 John. Ch., 517.) The same principles are laid down in Story Eq. Jur., § 694. The party, it is said, is to be relieved quia timet; that is, for fear such securities, deeds or other instruments may be vexatiously and injuriously used against him where the evidence to impeach them may be lost, or that they may never throw a cloud or suspicion over her title. While many of the cases in the books lay down the rule in terms limited to the facts in hand, I find no decision which contradicts the principles which I have quoted. I am of the opinion that in the present case the jurisdiction is sustained, and that the judgment should be affirmed.
All concur.
Judgment affirmed. *Page 188