dissenting:
Under the pleadings and proofs in this case as presented by the record, I think that the burden of proof was upon the defendant to prove his adverse claim. The answer admits that the defendant claims an estate and interest in the property adverse to the plaintiffs. The defendant’s denial *172of the averments in plaintiffs’ complaint that “he has no legal interest or estate in said property or any part thereof, or valid claim or title thereto, or that his claim is without right or void,” is equivalent to an affirmative allegation that he has a valid claim.
The statute, under which this suit was brought, was intended not only to extend the remedy, so as to allow a party having the possessory title to real property to bring an action to remove any cloud upon his title, but also to provide a new remedy for cases where a party out of possession claims an estate or interest in the property, adverse to the party in possession and injurious to his rights. It confers a jurisdiction beyond that ordinarily exercised by courts of equity to afford relief in the quieting of title and possession of real property. Under the statute it is not necessary to delay suit until plaintiffs’ possession has been disturbed as in the action of ejectment. I think that the intention of the legislature in adopting this statute was to require the defendant, in actions like the one under consideration,' to produce and prove his title in order that the claims of the respective parties to the property might be forever quieted and determined. This view of the case is fully supported by all the decisions in California bearing upon this question, rendered upon a statute identical with the statute of this State. Merced Mining Co. v. Fremont, 7 Cal. 319; Curtis v. Sutter, 15 Cal. 262; Crook v. Forsyth, 30 Cal. 662; Pralus v. Pacific G. & S. M. Co., 35 Cal. 34; Sepulveda v. Sepulveda, 39 Cal. 17.
Burnett, J., in Merced Mining Co. v. Fremont, said: “If the holder of the adverse claim, out of possession, should delay bringing his suit, the party in possession can force him to produce his claim and submit it to the determination of the proper tribunal.” Chief Justice Field, in delivering the opinion of the court in Curtis v. Sutter, said: “It is *173sufficient if, -whilst in the possession of the property, a party out of possession claims an estate or interest adverse to him. He can immediately, upon knowledge of the assertion of such claim, require the nature and character of the adverse estate or interest to be produced, exposed and judicially determined, and the question of title be thus forever quieted.” The same views were expressed by the supreme court of the United States, in Stark v. Starrs, 6 Wallace, 410, relative to the statute of Oregon similar in its provisions to the statute of California. In Crook v. Forsyth, the complaint averred ownership and possession of the property in plaintiff and alleged that the defendant claimed an estate, title or interest in it adverse to plaintiff, but that the claim was void and the defendant had no estate, or title or interest in the land.” The answer admitted plaintiff’s possession and set up title in defendant. It was held by the court, Shafter, <7., delivering the opinion, that “The burden of proof under the issues joined was upon the defendant.” That case was, in effect, identical with the case at bar; for when the jury found that plaintiff was in the possession of the property, the question was presented to the court in the same light as if the defendant had admitted it in the pleadings. The case of Head v. Fordyce, 17 Cal. 151, is not in opposition to Crook v. Forsyth. The principles announced in Head v. Fordyce, when considered in the light of the facts therein presented, support the views I have expressed as to the object of the statute. That'action was brought by the plaintiff to prevent the defendant from enforcing a decree of foreclosure, under a mechanic’s lien, which it was averred was obtained by fraud and collusion and was a cloud upon the plaintiffs’ title. Under this state of facts it was properly held, that "the plaintiff, in seeking to set aside the decree as a cloud upon his title to the property, must show affirmatively that Eordyce had no claim on the property, or any right to subject it or any part of it.”
*174The right of action in all cases provided for in the statute may be founded upon the mere possession of the plaintiff. But the cause of action is often different. When the action is brought to remove a cloud upon the title, the cause of action consists in the invalidity of defendant’s claim which is not apparent upon its face. In such actions it is undoubtedly true, that the facts, which show the apparent validity of the instrument which is said to constitute the cloud, and also the facts showing its invalidity ought to be stated in the complaint and proved by the plaintiff on the trial. But in other cases like Crook v. Forsyth and the one under consideration, the cause of action is the claim made by defendant of an adverse estate or interest in the property.
I consider the cases cited from New York, applicable to the case at bar. The prayer of plaintiffs’ complaint, “that the defendant be required to exhibit and show the nature of ' his claim,” is warranted by the statute and is, in effect, substantially the same as the statement in the notice required by the revised statute of New York. The case of Barnard v. Simms, 42 Barb. 308, was brought under that statute and it was therein, as here, contended that when a party was brought into court and made a defendant the plaintiff is bound to show that the defendant claims, or pretends to claim, such an interest as would constitute a cause of action under the statute. The court held that this was a'misapprehension of the objects of the statute and said, “if the defendant has a title he is bound to produce and prove it.” It was further held that the plaintiff was not required to show anything beyond his three years possession as provided for in the statute.
In my opinion, the judgment and decree of the district court was correct and ought to be affirmed.