Decided May 17, 1910.
On Petition for Rehearing.
[108 Pac. 861.]
Mr. Justice Eakindelivered the opinion of the court.
17. By this motion counsel for defendant again urge that the statute of limitations bars this suit, and question our construction of section 392, B. & C. Comp. As supplementary to what is said in the opinion, we may add that there can be no doubt that our statute of limitations (sections 3-26, B. & C. Comp.) can have no application to the State, except by virtue of the provision of section 13, which has been repealed by the amendment of 1903 (Laws 1903, p. 18), and provides that the limitations prescribed in this title shall apply to the State.
18. It is a common-law maxim “Nullum tempus occurit regi.” 1 Wood, Limitations, § 52, states that: “Except the statute otherwise expressly provides, it [the statute of limitations] cannot be set up as a bar to any right or claim of the State.” Those sections of the Code only apply to sections, and section 392 provides that suits shall only be commenced within the time limited to commence actions, as provided in Chapter 2, Title 1, of this code (sections 3-26). This does not make the statute of limitations apply to suits by the State, nor does section 13 apply to suits. And the State is not barred.
19. The clause of Section 392 of the Code, which provides that no suit shall be maintained to set aside, cancel, or annul a patent to land issued by the United States or this State, unless commenced within ten years, refers to persons claiming land wrongfully patented to another *309by the United States or this State. To make it apply to the State the statute must expressly so provide.
20. Again, defendant urges that the suit cannot be maintained unless plaintiff is in possession of the land. This contention is fully answered in the opinion, where we hold that the relief sought is the subject of general equity powers of the court, which existed prior to and independent of Section 516, B. &' C. Comp., authorizing suits to quiet title.
21. If plaintiff is out of possession and his remedy by ejectment is adequate, then equity will not entertain jurisdiction to remove a cloud, but there are many quia timet actions in which the remedy at law is not adequate, and of which equity will entertain jurisdiction whether plaintiff is in or out of possession.
22. If the relief is such that equity alone can grant, and the remedy at law is inadequate, that is sufficient to give jurisdiction. This principle is recognized in O’Hara v. Parker, 27 Or. 156, 168 (39 Pac. 1004, 1006) where Pomeroy is quoted and approved, to the effect that “where * * a party out of possession has an equitable title, or where he holds the legal title under such circumstances that the law cannot furnish him full and complete relief, his resort to equity to have a cloud removed ought not to be questioned.” In Hoopes v. De Vaughn, 43 W. Va. 447, 452 (27 S. E. 251, 253) it is held that “a suit in equity to annul a forged deed, * * brought by the legal owner * * while out of possession of the land, is not taken out of equitable jurisdiction by the fact that the deed is void.” To the same effect are De Camp v. Carnahan, 26 W. Va. 839, and Bunce v. Gallagher, 4 Fed. Cas. No. 2,133. In the latter case it is held that it is'not enough that there is a remedy at law; it must be plain and adequate. The fact- that the deed is void does not take it out of the jurisdiction of equity. As the invalidity of the deed does not appear on its face, but can *310only be made apparent by extrinsic evidence, it is the duty of equity to sweep it away. And the question of possession has no legal relation to the object now sought to be attained. Story’s Eq. Jur. § 700; 17 Ency. PI. & Pr. 284. In Booth v. Wylie, 102 Ill. 84, it is held that the rule that a bill to quiet title to remove a cloud upon a party’s title lies only when the complainant is in possession of the land applies only when the object of the bill is purely to remove a cloud from the title, and not where the primary relief sought is upon other and well-established grounds. The rule has no application when a deed is sought to be set aside upon the ground of fraud. In Pier v. City of Fond du lac, Imp., 38 Wis. 470, 481, it is said:
“In those actions quia timet, which may be brought independently of the statute, we find no authority for holding that possession by the plaintiff is essential to the cause of action; and, unless an averment of such possession is necessary to show that the plaintiff has no adequate remedy at law, no valid reason is perceived why it should be required.”
23. In 4 Pomeroy Eq. Jr. § 1377, it is said a doubt was formerly entertained as to whether a court of equity ought to exercise its jurisdiction to order instruments, absolutely void at law and not merely voidable, to be delivered up and canceled, since the legal remedy of a party was adequate. But it is now well settled that jurisdiction will be exercised in such cases, except where the invalidity of the instrument is aparent on its face; and in a note to Section 1399 he says, that when the interest to be protected is equitable, the jurisdiction should be exercised whether the plaintiff is in or out of possession; for under those circumstances legal remedies are not possible. In Kennedy v. Northup, 15 Ill. 148, 152, the bill was filed for the purpose of setting aside certain deeds alleged to be fraudulently obtained. It was objected that defendant was in possession, and that therefore plaintiff could not maintain the suit. The court said:
*311“We think the complainant has a right to have the defendant’s title set aside, * * although it may be true that the fraud, if proved, might defeat that title in a court of law, yet the courts of equity have ever claimed to possess superior facilities for investigating such questions to the courts of law, and certainly the relief which they can give is, in many cases, more satisfactory. When the fraud is once established, they can cut up the fraudulent conveyance or contract by the very roots, and leave the party in as secure a position as if it had never existed.”
As said in Bunce v. Gallagher, 4 Fed. Cas. No. 2, 138, there is no question of title involved in this suit, except that involved in whether the deeds are void; their invalidity does not appear on their face, but can only be made to appear by extrinsic evidence, and the question of possession has no legal relation to the object now sought to be attained.
Again counsel urge that, in ruling upon the demurrers, the court has taken into consideration facts disclosed on the trial as to the deed of date June 23, 1899, but the facts disclosing the invalidity of the deeds are set out in the complaint, viz., that H. C. Owen received no recognition from the board until he acquired the rights of Beekman and others under application No. 30, when he filed his own application of date March 12, 1884, to which was attached application No. 30, upon which certificate No. 144 is based, and recites that it is issued to H. C. Owen, successor to C. C. Beekman and others, and this precludes any inference that certificate No. 144 may have been issued upon applications for not more than 320 acres each. It is expressly alleged that the deeds were issued under and in accordance with certificate of sale No. 144, and the decision here is not in conflict with the opinion in Warner v. Morrow, 48 Or. 258 (86 Pac. 369).
In remanding the case to the lower court, we had in mind that all parties would prefer to have the whole case await the final decree as to all the deeds. And the pro*312ceedings in the trial court are subject to the control of that court. As to the deeds of date August 21, 1891, and the one of March 3, 1893, no doubt the defendant is entitled to have leave to answer. As to the deed of date January 18, 1883, it is for the lower court to determine whether the piaintiff should be allowed to amend; and, as to the deed of date June 23, 1899, findings are made by this court in favor of plaintiff. But since plaintiff, by the complaint offers to reimburse defendant Warner Valley Stock Company, for all sums of money paid by it and its predecessors in interest to the State upon the attempted purchase, which in equity and good conscience it ought to do, an accounting must be had thereon, and the decree rendered accordingly.
The motion for a rehearing is denied.
Affirmed in Part: Reversed in Part: Rehearing Denied.