-I4AMB v. nanmnn. 13
from a very early period. * * * In those actions quta timet which may
be brought independently of the statute, weflnd no authority for holding that
possession by the plaintiif is essential to the cause of action; and unless an
averment of such possession is necessary to show that the plaintiff has no ad-
equate remedy at law, _no valid reason is perceived why it should be required.
True, it is said in the opinion of Chief Justice Dixon, in Lee v. Simpson, supra,
[29 Wis. 333,] that · it is only the person having the possession and legal title
to land who may institute his suit quia timet in equity against any other per-
‘ son setting up a claim of title the1·eto,’ (page 337;) but the learned chief juS·
tice is there speaking of an action under the statute, and his remarks have
no application to those actions quia timst which may be brought independ-
ently of the statute." And see Clouston v. Shearer, 99 Mass. 209. `
And the court held that the statute could not be construed as tak-
ing away or restricting the inherent jurisdiction of courts of equity
to remove clouds upon the title of unoccupied land. '
t It is apparent, therefore, that this and other like statutes do not
confer a more extensive remedy than exists by virtue of the custom-
ary jurisdiction of the chancery courts. They may regulate the mode
of proceeding and form of decree, but they are not necessary to the
exercise of thejurisdiction. r _ h , F . . ,
A short sentence in the opinion of the court in the case of Orton
v. Smith, 18 How. 263, is cited as supporting the propositionthat
equity has no jurisdiction to remove a cloud from titlecxceptat the
suit of one who holds the legal and equitable title and has thepose
session. The case is citedin support of this proposition by counsel,
and in the late case of<Patrick vv. Isenhart, 20   Bar. 33,9, and
other cases. This is a total misconception of what was before the
court in that case for decision, and what was actually decided.,  
the threshold of the opinion the court say :_ "The bill in this case is
in the nature ofa bill of peace, as authorized bythe statute of. Wis-
consin." The statute is not given, but it is the same that came un- ‘
der discussion in the case of Pier v. Fond du Lac, supra. Orton v.
Smith was decided in 1855, and Pier v. Fond du,Lac in 18'Z5, but ,
the same statutewas in force at both periods, Itwill be observed
that in proceeding under that statute the plaintiff must baveboth
"the possession andthe legal title." It does not appear who,  any
one, was in possession of the land, but asit is said the,suit»was
founded on thestatute, it is highly probable the plaintiff was. .  
ever this may be, it is obvious that the question of possession,  
fecting the jurisdiction of the court underthe stat te,,or_ independently
of it; was not raised or considered. Orton, the defendant m_,>t1rs,;;¤,;¢ .
below, had in good faith paid $2,100.for atitle bond to the ima. cit
ecuted by Knab, who held the legalititleg. .One_Hubbard clairneda
secret equity in the land, of which Orton had no knowledge. Onthe
twenty-sixth of August, 1851, Orton filed his bill in chancery,·in the
state court, against Knab, demanding from liima conveyance of ’·the
legal title according to the exigency of his bondj · During the pena-
ency ofthis bill, Smith purchased, for a- nominaLconsideration, the
I