(after stating the facts). The bill is filed under 1 Comp. Laws, § 448. That section reads:
“Any person claiming the legal or equitable title to lands, whether in possession or not, may institute a suit in chancery against any other person, not in possession, setting up a claim thereto in opposition to the title claimed by the complainant, and if the complainant shall establish his title to such lands, the defendant shall be decreed to release to the complainant all claims thereto, and pay costs, unless the defendant shall, by his answer, disclaim all title to such lands and give a release to the complainant, in which case costs shall be awarded as the court may deem just.”
It does not appear by the bill of complaint that defendants are setting up any claim to the land in opposition to the title claimed by complainant. The case stated, therefore, is not one within the statute relied upon, and is unlike Flint Land Co. v. Fochtman, 140 Mich. 341. It is said that, because defendants do not now disclaim interest in the land, relief should be granted; that it is their duty to disclaim and to release all interest to complainant.
The matter set out in the fourth ground of the demurrer is, it is argued, an assertion of title in defendants. If the bill had been answered, and matter affecting complainant’s title adversely had been set up in bar of the relief prayed for, a different question would have been presented. See Flint Land Co. v. Godkin, 136 Mich. 668. I am not impressed with the idea that one who claims to be the owner of an absolute title to land derived through tax proceedings may lay the foundation for a second judicial determination of his rights by demanding of a former owner, out of - possession, that he disclaim all interest in the land. There is no statute which requires the owner of an original title cut off in tax proceedings to execute a release or to disclaim an interest in the land. His record title is not a cloud upon the title acquired through the tax proceedings. 2 Cooley on Taxation (3d Ed.), p. 1448; City of Detroit v. Martin, 34 Mich. 170. If he *466is in possession of the land and refuses possession to the tax-title holder, a writ of assistance issued on the footing of the original decree may be procured. If he is out of possession, asserting no title, he should not be amerced in costs and made to bear expense for refusing, upon the demand of the tax-title holder, made in or out of court, to do what he is under no obligations to do. But decision of the case at bar is rested upon the rule that the bill of complaint, no record evidence of a cloud upon complainant’s title being asserted, must aver that defendants had asserted title to the land or some claim thereto adverse to the title of complainant. Jenks v. Hathaway, 48 Mich. 536.
The decree overruling the demurrer is reversed, with costs of this court, and a decree sustaining the demurrer and remanding the record will be entered here.
Montgomery, Hooker, Moore, and McAlvay, JJ., concurred.