
    Elias Houghtailing, App’lt, v. Ransom Walling, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 14, 1888.)
    
    Deed—Action to set aside—What facts must exist—Exceptions.
    In an action seeking relief against a conveyance which purports to convey land of which the plaintiff is the owner, the general rule is, if the party claiming relief, is in possession and has a good defense, whether legal or equitable, if he can only be divested of his rights by some suit in court instituted by his adversary, he must wait until he is thus challenged. An exception to this rule exists, when by the force of some statutory law, the deed is made prima facie evidence of its validity and gives the grantee an apparent good title, and the defect can only be made to appear by extrinsic evidence.
    Appeal from a judgment of the Steuben special term, sustaining the defendant’s demurrer to the plaintiff’s complaint.
    This action is to procure the cancellation of a deed of land, executed by one, Houghtailing, to the defendant in October, 1885, and recorded in the Steuben county clerk’s office in April, 1887. The complaint describes the párele of land by metes and bounds, and it is _ then alleged that the plaintiff is and has been for the period of seventeen years the owner in fee simple, by purchase, and during^ all that time has been in the actual possession thereof, claiming to be such owner. That in 1885, one, Houghtailing, who had no title to the lands nor any right to convey the same, did execute and deliver to the defendant a quit-claim deed of the same, and it was placed on record. That at the time the defendant received the deed and placed it on record he knew the plaintiff was in possession of the premises. That before the commencement of this action, the plaintiff requested the defendant to remove “the said cloud from the title of said land,” which he refused to do.
    
      J. W. Dinney, for appl’t; Gibbs & Walker, for resp’t.
   Barker, P. J.

—The deed executed by Houghtailing and delivered to' the defendant, did not create any cloud on the plaintiff’s title to the lands in question. The averments set out in the complaint show that the deed which the plaintiff seeks to have cancelled, is entirely harmless, and does not cast even a shadow of a cloud on the plaintiff’s title. If the allegations in the complaint are true, the plaintiff has a complete title to the premises, and is in the undisturbed possession of the same. The grantor under whom the plaintiff claims, is a stranger to the title, having no connection with the same. It is true the deed, as a mere instrument, is in due form, and, as may be assumed, has no flaw in it, and would convey to the defendant any interest in the lands Which the grantor might have had in the premises. But there is nothing stated in the complaint showing, or from Which it can be inferred, that Houghtailing had any title, or that he ever set up or claimed title to the premises; on the contrary it is alleged by the plaintiff that he had none. The mere existence of a deed purporting to convey certain premises, but accompanied by no circumstances giving it apparent validity, would not operate as such a cloud upon the title as to justify the interposition of the court. If an entire stranger assumes to convey the premises to which he has no shadow of title, and of which another is in possession, no real cloud is thereby created. There is nothing to give such a deed even the semblance of force. It cannot be used to the serious annoyance or injury of the owner. These propositions were stated'by the court in Ward v. Dewey (16 N. Y., 529), where the question now under consideration was fully discussed. See also Crooke v. Andrews, 40 N. Y., 547.

Unless the plaintiff, in an action seeking relief against a conveyance which purports to convey land of which he is the owner, is aided by the provisions of some statute, the general rule now is if the party claiming relief is in possession and has a good defense, whether it be of a legal or equitable character, if he can only be divested of his rights by some suit in court, instituted by his adversary, he must wait until he is thus challenged, when he will be in time to bring forward his defense. Scott v. Onderdonk, 14 N. Y., 9; Weed v. Weed, 94 id., 243; Crooke v. Andrews, 40 id., 547; Chipman v. Montgomery, 63 id., 230.

An exception to this rule exists when by the force of some statutory law the deed is madprima facie evidence of its validity, and gives the grantee an apparent good title and the defect can only be made to appear by extrinsic evidence. The plaintiff made no claim that his case, as stated in the complaint, was brought within the provisions of sections 1638 and 1639 of the Code of Civil Procedure, allowing actions to be brought in a particular class of cases for the purpose of determining the title to real estate. Austin v. Goodrich, 49 N. Y.. 266.

The plaintiff’s counsel has endeavored, by his argument, to bring the case within the general powers of a court of equity to entertain suits for the purpose of quieting the title to real estate. I have not been able to find a single case where jurisdiction has been entertained upon a state of facts similar to those alleged in the complaint.

The judgment should be affirmed, with costs, with leave to the plaintiff to amend his complaint on the payment of costs in twenty days.

All concur.  