
    Joseph A. Wing, administrator of Sarah Hooper, v. Isaac N. Hall and Jonathan R. Darling.
    
      Effect of Void Deed. Discretion. Cloud wpon Title. Relief. Chancery.
    
    A tax deed, which is void hy reason of fatal defects in the proceedings of the collector, being upon record, has no further operation than to give character to such acts as the grantee and those claiming under him may do upon the land.
    W. was in the possession of a portion of a certain lot, claiming the whole under a void tax deed. H. and D. were also in possession of the rematador under a license from W.’s grantor, and 'while so in possession theroof procured a deed of the entire premises from M., who elaimod to own the same under an independent title. W. brought this suit in equity against H. and X)., to compel them to convey to him all right and title they acquired by virtue of their said deed from M., and to remove the cloud from his title. He'd that this case under its circumstances is not a proper one for such relief.
    
      Fh’’d that relief in such oases is granted, not as a matter of right, but discretion.
    Bill in Chancery. The bill set forth that on the 9th day of September, 1851, Samuel R. Hooper bid off, at a tax sale, lot No. 70, in the third division of lots in Groton ; that the said Hooper, on or about the 15th day of September, 1851, entered upon said lot, claiming to own the same, and cut timber on said lot up to the 8th day of March, 1853, when he received a collector’s deed of the same ; that said Hooper continued in the exclusive possession of the same from the date of said deed to about the 19th day of July, 1859, when ho, by his deed of warranty, in due form of law, conveyed said lot to his daughter, Sarah Hooper, now deceased ; that said Sarah Hooper, by virtue of said deed from Samuel R. Hooper, entered into possession of said lot, and continued in possession of the same to the time of her death in 1864; that after the death of said Sarah Hooper the orator was, by the probate court for the district of Caledonia, duly appointed administrator on the estate of said Sarah Hooper, and has been in possession of the premises to the present time; that about 1858 one McLean Marshall went into possession of a portion of said lot, under a license from said Samuel R. Hooper, and erected buildings on the samo, and he and those claiming under him by virtue of said license occupied a portion of said premises, under and by virtue of the license aforesaid; that Isaac N. Hall and Jonathan R. Darling, about the first day of December, 1865, made a claim by virtue of attachments and levies on that part of said premises occupied by said Marshall, and their claim was a cloud on the title of the orator as administrator, as aforesaid; that, on the 19th day of December, 1865, the orator, as administrator, as aforesaid, brought his bill in chancery against said Hall and Darling and others, to settle the rights of the parties in said premises, and to remove said cloud from said title to said premises, which bill was duly served and entered in court, and upon final hearing the court, among other things, ordered and decreed that the defendants in said suit might remove the buildings from said land at any time within one year from the 30th day of April, 1869, and that the land, after the buildings wore removed, should be the property of the orator as administrator as aforesaid, and if said buildings were not removed within said year they were to vest in and be the property of the orator as aforesaid, free from all right or title of the defendants and all persons claiming under the title of said Marshall to said premises, which decree is in full force; that the said Hall and Darling, on the 28d day of January, 1869, procured from one George S. Mason a quit-claim deed of said lot No. 70, which the said Hall and Darling then placed on record in said Groton; that said Hall and Darling paid but little, if anything, for said deed, and at the time they took said deed they well knew that the orator, as administrator, was in possession of said lot, claiming to own the same as administrator as aforesaid.
    PrayeR : That the court will order and decree that the said Hall and Darling shall, by some short time to be fixed by the court, convey to the orator all right and title they acquired by virtue of said deed from said Mason, and that the defendants be ordered to discharge their deed on the record and remove the cloud from the orator’s title, and that the defendants be forever enjoined from setting up any claim or title under said deed from said Mason to them, as aforesaid, and for further relief, &c.
    The answer of the defendants admits some. of the allegations of the bill and denies others, and also denies the validity of said collector’s deed, and avers that said Mason was the owner of said lot, and that by virtue of said deed of said Mason to them they became the owners of the same, and were in the possession thereof, and had been for eighteen years.
    The case was heard on bill, answer, replication and proofs. The court of chancery, Washington county, at the September term, 1870, Peck, Chancellor, presiding, decreed :
    That the premises in controversy, mentioned in the pleadings, belong to and are property of the orator as administrator of Sarah Hooper, deceased, and that the said Isaac N. Hall and Jonathan R. Darling, the defendants, be jjerpetually enjoined from sotting up or asserting any claim to said premises by virtue of their deed from George S. Mason to them, against the orator as such administrator, as aforesaid, or his assigns, or against the heirs, executors, administrators, or legal representatives of the said Sarah Hooper, and that the defendants, within thirty days from date, by a deed effectual for that purpose, release to the orator, as administrator of Sarah Hooper, all right, title and interest in the estate which they, or either of them, acquired or have by virtue of said deed from said George S. Mason, and that the orator recover his costs ; from which decree the defendants appealed.
    
      
      O. J. Gleason, for the defendants.
    The case shows no danger of waste or irremediable injury, no question of disputed rights under the same title. It calls for no construction of deeds or levies. There is no inadequacy of the remedy at law. There is no fund locked up, as in the case of Hodges v. Griggs, 21st Vt., 280. It is a disputed right simply, and the orator has a plain remedy at law. White v. Booth, 7 Vt., 131; Burnham v. Hempton, 44 N. H., 79; Woodman v. Sal-stonstall, 7 Cush., 181; Blackwood v. Von Vleet, 11 Mich., 252. The orator alleges in his bill, and claims, that he has acquired title to this lot by adverse possession, and wants defendants’ deed removed because it is a cloud on that title. “ A court of equity will not interfere to quiet the possession of a party whose equitable title has, by adverse possession, become a legal one.” Wolcott v. Bobbins, 26 Conn., 236. If the defendants’ title is defective, the invalidity appears on the record, and equity will not interfere to set it aside. Mallory v. Bongherty, 16 Wis., 267 ; Munson v. Munson, 28 Conn., 582; 1st Story Eq. Jurisprudence, § 700 (a) and note ; Von Boren v. Mayor of Weio York, 9 Paige Ch. R., 388.
    
      Joseph A. Wing, pro se.
    
    It is insisted by the defendants, in their answer, that if the facts are all true as set forth in the orator’s bill of complaint, the orator has a perfect remedy at law, and therefore the court of chancery has no jurisdiction. What action at law could the orator have sustained at the time this bill in chancery was brought ? He could not have sustained ejectment, as the proof shows the orator was in possession of the premises the whole time, and there is no proof tending to show the defendants in possession of any part of the land except the buildings. This bill was brought September 1, 1869. At that time, by decree of court, the defendants had the right free of rent to occupy the buildings till the 30th day of April, 1870. And the evidence does not show, and the orator could not prove, any acts or claim of possession by the defendants on the premises prior to bringing of the bill by the orator. Story’s Equity, 2d vol., page 9, § 700; Hamilton v. Cummings, 1 John’s cli. 517 ; Story Eq., § 671, § 700, notes ; Header v. Norton, 11 Wallace, 442 ; Mdredge v. 'Smith et al., 34 Vt., 484 ; Buclcnellv. Buchnell et al., 31 Vt., 498.
    It is the policy and practice of a court of clianccry to finish a case once in the jurisdiction of the court, and not send the parties to another tribunal. Twitehell v. Bridge, 42 Vt., 68 ; Sanborn v. Kitridge et al., 20 Vt., 632 ; Bay v. Cummings, 19 Vt., 496 ; Beardsley v. Knights, 10 Vt., 185 ; Bean v. Nelson Hall, 1 Aik., 252 ; May v. Lollon, 11 Wallace, 217; Holmes v. Holmes, admr., 36 Vt., 525.
   The opinion of the court was delivered by

Wheeler, J.

The proceedings of tax collector Coffrin had several fatal defects in them, and did not by their own force make any title in Samuel R. Hooper. The deed, which was a part of these proceedings, being upon record in the land records of Groton, would give character to such acts as Hooper, the grantee in it, and those claiming under him, did upon the land, and would have no further operation. Upon the undisputed facts in the case, the grantors of the defendants appear to have had as good title, apart from mere possession, as either the grantor of the orator’s intestate, or she herself had, and none of them appear to have ever been the true owners or ever to have had the true title. The orator does not claim that his intestate ever acquired the real title of the true owner, nor that she ever acquired any title according to the full meaning of that term, but that he has shown by his evidence that he is in possession, and that he has shown such further facts as to make it appear that by force of the statue of limitations of actions and rights of entry, no one, not even the true owner, can disturb him in his possession as administrator.

If the orator in fact has the possession, that fact rests wholly in parol evidence, and if he has the right to maintain his possession against all other persons, the facts upon which that right rests must be shown by like evidence. The deed to the defendants docs not obstruct the proof of any of these facts, nor in any manner hinder the just operation of them. Neither has this deed either any real or apparent force against the right which the orator represents, unless it be in connection with facts that the defendants claim to establish, and which likewise rest wholly in parol evidence.

This deed has no connection with the orator, nor with any one with whom the orator is in privity on account of title, and it does not in fact, neither does it purport to, convey any title whatever to the defendants from either him or them. Neither has it any force, either real or apparent, from the maker of it that it ought not to have. If such facts exist as that the deed is of force to convey title to the defendants, they exist independently of the rights of the orator, and the operation of the deed cannot defraud either him. or the interest he represents, and of right the deed ought to have all the effect that these facts give to it. If such facts do not exist, the deed casts no shadow upon the orator’s rights, for it is entirely independent of his color of title, which is all he has of record, and entirely independent of the proof of the facts upon which he rests his rights.

Whether the orator has possession and is entitled to maintain it against all others or not, the deed did not convey, nor purport to convey, to the defendants any right or interest that appertained of right to the orator, and if it did convey any right or interest in the land to them, it is theirs and not his, and he has no right to have them compelled to give it up to him.

As this case is presented here, the rights of these parties as against each other cannot be determined by the trial of any question of fact growing out of the obtaining of the deed by the defendants, or of any use attempted to be made of it by them, but only by the trial of disputed questions of fact that arise from transactions not in any way connected with the deed. There are cases where it is within the power and where it may be the duty of a court of equity to require a conveyance to be made, or an instrument of title to be delivered up to bo cancelled in order to remove a cloud which a fraudulent or unlawful use of an apparently legal title or instrument would create; but without undertaking to point out the cases in which a proceeding in equity would be sustained for such a purpose, it is sufficient for present purposes to say that this case under its circumstances is not a proper one for such relief. And farther, tho relief in such cases is granted not as a matter of right that the party seeking it has, but as a matter of discretion that the court may or may not exercise as appears fit, and upon that ground, in a case circumstanced as this is, it would seem fit that the parties should be left to try the facts by jury, as such questions are usually tried.

The decree of the court of chancery is reversed and the cause is remanded, with directions to dismiss the orator’s bill with costs, but without prejudice to the orator’s rights in any proceeding at law.  