
    Lavinia Lally, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
    Second Department,
    December 23, 1907.
    Beal property — cloud on title by State patent — party affected may sue in equity.
    Where evidence dehors a land patent from the State is required to show the invalidity thereof, the- patent can be avoided only in a direct proceeding to review the action of the Land' Commissioners, or by suit in equity to vacate the patent-.
    
      But this rule does not prohibit a suit in equity by an individual to remove a cloud on his title created by such patent.
    To annul the patent absolutely, proceedings can be taken only'by the State or some individual' in its name; individuals cannot maintain such procee'ding, as the question is éxclusively between the sovereign issuing the patent and the patentee.
    Section 1957 of the Code of Civil Procedure, allowing the Attorney-General to maintain an action to vacate letters patent granted by the State, refers only to actions to vacate and annul such patent; it does not prohibit a suit in equity by an individual to remove a cloud on his title created by such patent.
    Appeal by the plaintiff, Lavinia Lally, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 26th day of September, 1906.
    
      Lavinia Lally, for the appellant.
    Alexander S. Lyman [Thomas Emery and Albert H. Harris with him on the brief], for the respondent.
   Jenks, J.:

The plaintiff appeals from a judgment dismissing her complaint at the opening of the trial at Special Term. Both parties concede that the action is in equity to remove a cloud upon the plaintiff’s title. The question turns upon the extent and validity of certain letters patent from the People of the State. The learned court dismissed the complaint upon the ground that the court did not have jurisdiction; that such a grant could only be attacked by a suit brought directly by the-sovereign, either by the People themselves, through the Attorney-iGeneral, to set aside the entire grant, or, where it affects a private individual, as in this case, by the People on the relation of the owner to set aside the grant. My discussion is . limited to the question whether an action of this nature lies. It is well, settled that where evidence dehors. the patent is required to show the invalidity thereof the patent can be .avoided “only in a direct proceeding to review the action of the commissioners,, or by action in equity to vacate the patent.”. (Blakslee Mfg. Co. v. Blakslee's Sons Iron Works, 129 N. Y. 155, a,pd authorities cited.) ■ But I think that this r.ij'Je does- not prohibit .an. action by an individual to remove á cloud on his title. The distinction is clearly shown by Stephen J. Field, Ch. J., in Biddle Boggs v. Merced Mining Co. (14 Cal. 279, and especially at pp. 363-365). The learned judge first says : The proceeding by bill in equity, which an individual is allowed to take, to set aside a patent, or control its operation, is in the nature of a bill to quiet title — to determine an estate held adversely to him — to remove what would otherwise be a cloud upon his own title; or is in the nature of a bill to enforce a transfer of the interest from the patentee on the ground that the latter has, by mistake or fraud, acquired a title in his own name, which tie should in equity hold-.for the benefit of the complainant, The individual complainant must, therefore, possess a title superior to that of his adversary and, of course, to that of the government through whom his adversary claims, or he must possess equities which will control the title in his adversary’s name.” After discussion of Gaines v. Nicholson (9 How. [U. S.] 364) the learned judge proceeds: “ Here the Trustees asserted a title, which upon their allegation, was superior to that of the government at the time the patent issued, and though the suit is stated in the opinion of the Court to be to set aside and annul the patent, it was in fact, as appears from the pleadings and judgment, only to stay proceedings at law and remove the cloud upon the title. In that particular case, the effect of the suit, had the decree been sustained, would have been the same upon the rights of the patentees, as if it had been brought to annul the patent absolutely. But, in many cases, the effect would be very different. A decree annulling a patent destroys it absolutely; a decree setting aside, or restricting, its operation to the. premises in controversy, still leaves it unimpaired in other respects. To annul a patent absolutely, proceedings can only be taken by the government, or some individual in its name, and that by scirefacias, or by bill, or information. Individuals can maintain no proceedings to- that effect, the question being one exclusively between the sovereignty issuing the patent, and the patentee.” (See, too, Peabody Gold Min. Co. v. Gold Hill Min. Co., 106 Fed. Rep. 241; Duluth & Iron Range R. R. Co. v. Roy, 173 U. S. 587; Van Wyck v. Knevals, 106 id. 370.) I think that section 1957 of the Code of Civil Procedure refers to actions to vacate and to annul, and is not prohibitive of this action. Such an instrument as is described in the complaint may be said to create a cloud upon title. (Van Wyck v. Knevals, supra.) This defendant is certainly a necessary party. (Sanders v. Saxton, 182 N. Y. 477.)

The question of any defect of parties defendant is not raised on this appeal. Whether there is such a defect in this action, which is in personam (Hart v. Sansom, 110 U. S. 151, 154; 5 Pom. Eq. Juris. [3d ed.] § 12; 1 Pom. Eq. Rem. § 12), needs not now to be considered.

I recommend that the judgment be reversed and a new trial be granted, costs to abide the final award of costs.

' Woodwabd, IIookée and Gaynqe, JJ., concurred ; Hiesohbebg, P. J., not voting.

Judgment reversed and new trial granted, costs to abide the final award of costs.  