(dissenting). In this case there is a demurrer to the complaint of Margaret Sexton on the ground that it does not state facts sufficient to constitute a cause of action. The question of misjoinder of parties is not at all presented, as there is no demurrer on that ground, and as a demurrer lies only for a defect or want of parties, plaintiff or defendant, and not for any excess from parties or the joinder of needless parties.
The complaint avers that Margaret Sexton is the wife of Patrick Sexton, and joins with him in this action to quiet title to certain land which is owned by Patrick Sexton and which is occupied as a home*515stead by the plaintiffs. Then it avers that the action is for the purpose of freeing title to such premises of all liens and encumbrances claimed by the defendants, which liens and encumbrances have grown out of mortgages signed by her husband without being signed or acknowledged by the said Margaret Sexton. Then it avers that defendant’s claim certain estates in the land adverse to the plaintiff, and makes a demand for judgment quieting title.
The complaint is neither fish nor fowl. It is not a bill in equity, and it is not a proper complaint under chapter 5, Laws of 1901, for the determination of adverse claims. In Walton v. Perkins, 28 Minn. 413, 10 N. W. 424, the distinction between those twd actions is very clearly made, and it is there held that when the complaint is one to remove a specified cloud upon title to real estate it must show the cloud and state facts showing that it is void. And if it fail to show that the instrument under which the defendant claims title is invalid, then the complaint is demurrable, even though it state facts sufficient in an action to determine adverse claims, and the reasoning of the court is sound and logical, because, in an action to remove a specified cloud, the plaintiff is entitled to recover costs, even though the defendant does not appear, but in an action to determine adverse claims under the statute the plaintiff recovers no costs in case of no defense. The complaint merely asserts that the defendants make an adverse claim, without showing that the defendants do plaintiff any wrong in making it. And, as we held in a recent case involving title to school lands, the answer is in reality the commencement of an action by the defendant against the plaintiff, and an answer claiming title sets forth a counterclaim, to which the plaintiff must reply. The object of the action is to force one claiming an adverse interest or lien, to establish or abandon his claim.
With respect to the claim of defendant, the position of the parties is the reverse of that occupied by parties in an ordinary action. The defendant becomes practically the plaintiff, and takes the affirmative in • pleading and proof, while the plaintiff becomes practically the defendant and defends against the claims.
In an ordinary action the plaintiff must tender the issues to the defendant, and, if defendant takes issue on facts alleged, the plaintiff must prove enough of them to entitle him to recover. An action under the statute is brought to compel defendant to tender issues unless he *516chooses to abandon his claim. In this case the complaint is one to remove a specified cloud arising from mortgages on homesteads, and as such it does not state facts sufficient to constitute a cause of action.
The demurrer should be sustained.
*500Note. — As to whether wife is necessary party to suit concerning homestead, see note in 81 Am. Dec. 451.
As to effect of mortgage of homestead by husband alone, see note in 68 Am. Dee. 323.
On effect of conveyance or encumbrance of homestead by one spouse only, see note in 95 Am. St. Rep. 909.