
    [No. 9152.
    Department Two.
    January 7, 1911.]
    Pacific Coast Pipe Company, Appellant, v. Daniel Hedican et al., Respondents.
      
    
    Quieting Title — Cloud—Mortgage by Stranger. Under Rem. & Bal. Code, § S09, enlarging equity jurisdiction, an action lies to quiet title against a mortgage given by a stranger to the title.
    Appeal from a judgment of the superior court for Spokane county, Hinkle, J., entered November 22, 1909, upon sustaining a demurrer to the complaint, dismissing an action to quiet title.
    Reversed.
    
      P. C. Shine, for appellant.
    
      McWilliams McWilliams, for respondents.
    
      
      Reported in 112 Pac. 655.
    
   Morris, J.

The only question involved in this appeal is whether or not the complaint, the action being bne to quiet title, states a cause of action. The court below, having sustained a demurrer, dismissed the action upon appellant’s refusal to further plead, and from such judgment this appeal is taken.

The complaint recites that the plaintiff is now the owner, and for a long time has been in possession, of the land; that defendants claim and assert an interest therein adverse to the plaintiff, which claim is without right, neither of the defendants having any right, title, interest or estate in the land; that Thomas Hedican, one of the defendants, for the purpose of defrauding the plaintiff, and acting under a power of attorney from Daniel Hedican, executed for the purpose of defrauding plaintiff, did on March 12, 1909, enter into a conspiracy with defendant Bolton, who is the alleged husband of the undivorced wife of Daniel Hedican'who is wrongfully supposed to be deceased, to and did execute a mortgage upon the land to said Bolton, without any consideration, which said mortgage was placed on record and purports upon its face to be a lien upon the land; that under the belief that Daniel Hedican ivas dead, an administrator has been appointed for his estate, which said administrator and the wife of Daniel Hedican claim an interest in the land because of said wrongful alleged death.

The ground upon which the demurrer was sustained, as we gather from the briefs, is that the complaint did not show any such interest in the property as to require the intervention of a court of equity, and even if such interest be shown, the alleged cloud is not of such substantial nature as to justify an action to remove it; the argument being that the mortgage is shown to have been executed by a stranger to the title, and that the complaint alleging that plaintiff is now the owner of the property, it does not appear that it was the owner or had any interest in the property when the mortgage was given. Nor does it appear that Daniel Hedican was not the owner at the time of the giving of the mortgage.

It may be admitted that many states hold that, in order to constitute a cloud upon title, the alleged offending instrument must upon its face confer some right or interest in the land, and that it could not show such interest if executed by a stranger to the title. Such, however, is not the rule in this state; actions of this character being permitted, even though the claim be shown to be absolutely invalid, upon the theory that Rem. & Bal. Code, § 809, has enlarged equity jurisdiction in cases of this character, and under this section the action may now be brought by the person in possession “for the purpose of stopping.the mouth of a person who has asserted or who is asserting a claim to the plaintiff’s property. It is not aimed at a particular piece of evidence, but at the pretensions of the individual,” and “it is sufficient that the party in possession is incommoded or damnified by the assertion of some claim or interest in the property adverse to him.” McGuinness v. Hargiss, 56 Wash. 162, 105 Pac. 233, and cases there cited. Under the above rule, this complaint stated a cause of action, and it was error for the court to sustain the demurrer and enter a judgment of dismissal.

The judgment is reversed, and the cause remanded for further proceedings.

Rudkin, C. J., Chadwick, and Dunbar, JJ., concur.  