never been asserted, but is lying dormant, is a cloud upon his title by adversary possession, really seems to be a perversion of the terms.

The term "to quiet a title" imports that there is something disturbing in it. It is always assumed, when the court interposes, that the title of the party complaining is affected by a hostile title apparently good but really defective.

Where the title which is supposed to be clouded is an equitable one, the legal remedy does not exist, no recovery could be had at law, however meritorious the plaintiff's title might be in the contemplation of a court of conscience, and upon this consideration the principle has been well established that equity may be resorted to for relief against the cloud by one out of possession. Bills of peace are of two kinds: First, those which are brought to establish a right claimed by the plaintiff, but controverted by numerous parties having distinct interests originating in a common source, and second: bills of peace of the other kind lie where the right of the plaintiff to real property has been unsuccessfully assailed in different actions, and is liable to further actions of the same character, and are brought to put an end to the controversy.

A bill quia timet is generally brought to prevent future litigation as to property by removing existing causes of controversy as to its title.

It is now well settled that by adverse possession for the period designated by the statute, not only is the remedy of the former owner gone, but his title has passed to the occupant, so that the latter can maintain ejectment for the possession against such former owner should he intrude upon the premises.

In several of the States this doctrine has become a positive rule by their statutes of limitation declaring that uninterrupted possession for the period designated to bar an action for the recovery of the land shall, of itself, constitute a complete title.

One of the most common impositions of equity is in the

case of lost deeds and instruments. A court of equity in case of the loss of an instrument which affects the title or affords a security will direct a reconveyance to be made.

If an imperfect and inoperative lease does not constitute an actual cloud it is nevertheless a decisive step towards the creation of a cloud and a threat and menace to create one in the future. Equity may interfere to prevent a threatened cloud as well as to remove an existing one. It is true that, in such a case, there must appear to be a determination to create a cloud, and the danger must be more than merely speculative and potential.

A lease is something more than a certificate of sale of property for unpaid taxes.

[Waste.]

Though a court of law may give damages for waste, yet, it cannot prevent further waste; and it is upon this ground, to prevent a multiplicity of suits, that a court of equity will decree an account of waste done, with an injunction.

A court of equity always distinguishes between the digging of mines and cutting of timber, because the digging of mines is a sort of trade. The court will relieve and decree an account of ore taken, when in any other tort or wrong done it has refused relief.

A bill does not lie for an account of waste where there is not ground for an injunction to restrain waste. The court never sends a party to law in cases of equitable waste; they being exclusively of equitable cognizance. It will not permit a man to commit equitable waste, and retain the produce of the injury, which is recoverable in no other court.

It would be a reproach to equity to say, where a man has taken property, such as ore or timber, and disposed of it in his lifetime, and dies, that in such case, a plaintiff must be without remedy. It may be considered as a general rule, that where a bill would lie against a party when alive, it lies against his representatives after his death.

A tenant for life of an estate is liable to account in equity

for profit derived by him from an improper use of his legal powers in committing equitable waste.

A tenant for life has no property in the trees, but a clause may be added to the conveyance giving him full power and authority to do and to commit waste. Under such a clause he might fell trees that were not for ornament or shelter of a house, as well as open a new mine, and carry away the mineral without filling it up again.

The tenant for life, sans waste, is as much the owner of the timber as the tenant in fee. Their legal rights in this respect are identical. Then the principle of equitable interference is, that if the estate is to go in succession equitable waste ought to be restrained; and, for this purpose, it is quite immaterial whether the succession is effected by creating life estates or estates in fee subject to executory devises.

There is no distinction, either in law or equity, between cutting down young timber trees, and decayed timber.

If a tenant for life liable to waste had sold timber, he could not prevent the vendee from cutting it. It is collusion to bring forward the remainder-man. If he complains, he must file a bill alone.

Where a mortgagee in fee in possession commits waste by cutting down timber, and the money arising by the sale of the timber is not applied in sinking the interest and principal of his mortgage, the court, on a bill brought by the mortgagor to stay waste, and a certificate thereof, will grant an injunction.

Where there is only a mortgage for a term of years, and the mortgagor commits waste, the court, on a bill by a mortgagee to stay waste, will grant an injunction, for it will not suffer a mortgagor to prejudice the incumbrance.

There are numerous cases in which a court of equity has interposed to stay waste, by the tenant, where no action can be maintained against him at law. Thus, where there is a lessee for life, remainder in fee; the mesne remainder-man cannot bring waste, nor the remainder-man in fee, but equity will interpose and stay the waste.

So equity will, in many cases, restrain waste, though the

lease contains the clause without impeachment of waste, and which takes away the remedy at law, as where this power is exercised in an unreasonable manner, and against conscience.

It would be placing the operation of waste beyond the reach of control during the period of six months notice, if an ejectment must actually be commenced before the injunction can issue. The notice to quit may be considered as the commencement of an adverse proceeding at law.

Disposing of the objection that trees grow in a wood and have arisen naturally and not from planting, it has been held that if they serve as an ornament or shelter, it is very probable that the situation of the house was chosen for the sake of cutting ridings and vistas through the woods.

The clause, without impeachment of waste, is generally put in to prevent a son having it in his power to call a father into a court of equity for every alteration he makes in a walk or avenue, though he removes the trees to another part of the land, and so of the house.

If a plaintiff moving for an injunction to restrain a tenant for life, subject to impeachment of waste, from cutting any timber or other trees unfit to be cut in a due and fair course of husbandry, reserves his affidavits till the answer is filed he deals not altogether fairly with the defendant, who is entitled before the answer to be appraised of the points on which the plaintiff rests his case. Affidavits filed after the answer are inadmissible.

A tenant for life, without impeachment of waste, is clearly not compelled to cut timber in such a way as a tenant in fee would think most advantageous but is entitled to cut down anything that is timber. He might cut down all the trees, without question, at law; and to subject him, in a court of equity, to the rules which a tenant in fee might observe, for the purpose of husband-like cultivation, would deprive him of almost all his legal rights.

A court of equity never grants an injunction on the ground that it will do no harm to the defendant, if he does not commit the act in question; but if there be no ground for the injunction, it will not support it. It grants injunctions

against waste when it is done only in a slight degree or when threatened; and in respect to growing timber it does not expect a tenant for life to let it grow-so long as a tenant in fee might find it to his interest.

If the injunction restrains the legal right to cut timber, security shall be given, that in case of the death of him, whose enjoyment of that legal right may have been restrained improperly, his estate shall, to the extent of the benefit he would have derived from the exercise of that right, be reimbursed by those who restrained him.

In framing the issue it must be stated by whom the trees were planted or left standing for ornament: as, if they had been planted by the tenant for life without impeachment of waste, unless afterwards left standing with that view by some person having the inheritance, they would not be entitled the protection of equity.

It is an established doctrine, that the question is not, whether the timber is, or is not, ornamental: but the fact to be determined is that it was planted or left standing for ornament by some person having the absolute power of disposition.

A mere tenant for life, coming into possession, cannot vary the estate. That can be done only by some person having the dominion over it.

By the law of New York State it is not waste for the tenant to erect a new edifice upon the demised premises provided it can be done without destroying or materially injuring the buildings or other improvements already existing thereon. He has no right to pull down valuable buildings, or to make improvements or alterations which will materially and permanently change the nature of the property, so as to render it impossible for him to restore the same premises, substantially, at the expiration of the term.

To apply the ancient doctrines of waste to modern tenancies, even for short terms, would in some of our cities and villages put an entire stop to the progress of improvement, and would deprive the tenant of those benefits which both