Opinion by
Lewis, C. J., full Bench concurring.The appellants in this cause make two points upon which it is claimed the judgment in the Court below should be reversed.
First — That the plaintiff upon the trial failed to show, and the Court to find, that the plaintiff was in possession of the premises at the time the action was instituted; and, second: that as the suit was commenced in one of the District Courts of the Territory of Nevada, the State Court obtained no jurisdiction of it, and that the decree is therefore void. Were this, as claimed by counsel, a suit brought under Section 254 of the Civil Practice Act, which provides for the determination of conflicting claims to real property, undoubtedly the possession of the plaintiff would be indispensable to entitle him to the relief which he seeks. But, in our opinion, it is not necessarily governed by the statutes referred to. The plaintiff seeks a remedy which Courts of Equity have always granted independent of any statute, where a proper case was made out. The relief sought is a decree to compel certain persons to execute deeds of conveyance to the plaintiff, and to remove a cloud from his title. That it- requires no statutory provisions to enable a Court of Equity to award relief in such cases, there can be no doubt.
In speaking of the power of the Courts to order the surrender or *212cancellation of instruments which it would be unjust to enforce, or which cast a cloud upon a title, Mr. Story says: “ The party is relieved upon the principle, as it is technically called, quia timet: that is, for fear that such agreements, securities, deeds, or other instruments, may be vexatiously or injuriously used against him when the evidence to impeach them may be lost, or that they may now throw a cloud or suspicion over his title or interest; a fortiori the party will have a right to come into equity to have such agreements, securities, deeds, or other instruments delivered up and canceled, where he has a defense against them which is good in equity, and not capable of being made available at law.” Story’s Equity Jurisprudence, Section 694. Indeed, in all cases where an instrument is void, or should not in justice be enforced, or has a tendency to cast a cloud upon the title of .another, and the illegality of the deed or instrument is not apparent upon its face, the Courts have never hesitated to decree a surrender or cancellation of such instrument. (Id. 700; Reed v. Bank of Newburgh, 1 Paige R. 215; Petit v. Shepherd, 5 Paige R. 493; Van Doren v. Mayor of New York, 9 Paige, 388.) Should the instrument carry the illegality upon its face, so that its nullity can admit of no doubt, the reason for the interposition of equity to decree its surrender or cancellation doegnot then exist, for such instrument could cast no cloud upon the title, and there can be no danger that lapse of time ayíII deprive a party of his full defense. It is in such cases only that relief is refused; nor did the plaintiff’s right of relief, where he sought to remove a cloud from his title, necessarily depend upon his possession of the premises. It is true, Avhen a party applies for any equitable relief in aid of his legal title to real estate, that Courts of Equity must be satisfied the complainant has a legal title before granting relief. And if the possession should be held adversely, the Court might well say to complainant: “ Establish your right by action at laAv, or else this Court cannot be satisfied that you have a legal title.” But in a case like this, we see no necessity for an action at laAv. The possession is in an incorporated company, which admits the rights of whoever holds the Robinson title. The plaintiff shows he has a title properly derived from Robinson ; but that the claim of title has been broken by the loss of some of the deeds. He Avishes by this proceeding to establish that claim of title, to have the lost *213deeds supplied, and a cloud removed. We see in such case no necessity for an action at' law to give possession. If he establishes his chain of title, his rights will be acknowledged — no action at law will be required. Independent of any statute, therefore, the plaintiff’s remedy was complete in equity; and, notwithstanding Sections 254 and 255 may be sufficiently comprehensive to embrace the remedy now sought by the plaintiff, it will hardly be claimed, we apprehend, that this Statute entirely supersedes the remedy which existed independent of it. The Statute gives a remedy in cases where perhaps without it none existed. Eor instance, if the plaintiff be in possession, he has a remedy against all persons claiming adversely, whether such claim casts a cloud upon his title or not; thus far the old equity jurisprudence of the Court is extended, but farther than this we do not think it affected. ■ We are, therefore, of opinion that the bill • may be maintained regardless of whether the plaintiff is in possession of the premises or not. As to the second point, i.e., whether the District Court, before which the cause was tried, had jurisdiction or not, it may be observed that although the cause was commenced in the Territorial Courts, the subsequent appearance in the District Court of the State leaves no doubt that it obtained jurisdiction of the parties. The record in this cause, together with all others, was transferred from the District Court of the Territory to that of the State, whether by proper authority or not, is of no consequence; for the defendants by appearing, filing their answers, and trying the cause, will be deemed to have consented to such transfer ; and then, voluntary appearance in the State Court was equivalent to the issuance of a summons from that Court, and the service of same upon them. Had the action been finally disposed of in the Territorial Courts, the jurisdiction of the State Courts over the decree or judgment might be questionable. But as that question does not arise here, we do not wish to be understood as expressing an opinion upon it.
The decree of the Court below must therefore be affirmed, and it is so ordered.