and filed motion to be relieved from decree, and to be let in to defend. Motion denied. Defendant appeals. Affirmed.

J. W. Metcalf, for appellant. John M. Somers, for respondent.

BEAN, C. J. This is an appeal by the defendant from a decree of divorce rendered on November 15, 1893, without any appearance by her, or service of process, except by publication in a newspaper. In April, 1894, she appeared and filed a motion, supported by affidavits, asking to be relieved from such decree and to be let in to defend the suit. The motion was denied, and hence this appeal.

In support of the motion it is contended that the court below did not have jurisdietion of the defendant at the time the decree was rendered, because the proceedings for the publication of the summons were defective. But the motion was not to vacate the decree on jurisdictional grounds, but to be let in to defend the suit, and was therefore a waiver of all irregularities in the service of process. A defendant may appear specially to object to the jurisdiction of the court over him, or to set aside a default or judgment as void for want of service of process, without submitting himself to the jurisdiction of the court for any other purpose. Kinkade v. Myers, 17 Or. 470, 21 Pac. 557. But when he appears, and asks some relief which can be granted only on the assumption that the court has jurisdiction of his person, he will be deemed to have entered a general appearance, and submitted himself to the jurisdiction of the court, as completely as if regularly served with process. Belknap v. Charlton, 25 Or. 41, 34 Pac. 758, and authorities cited. And this is so although his appearance may be after judgment is entered against him. Burdette v. Corgan, 26 Kan. 102; Leake v. Gallogly, 34 Neb. 857, 52 N. W. 824; Gray v. Gates, 37 Wis. 614; Grantier v. Rosecranze, 27 Wis. 488. The motion in this case did not challenge the decree on jurisdictional grounds alone, but it was a general motion, under section 58, Hill's Ann. Laws, to set aside the decree, and for leave to defend; and she attempted, by her affidavits, to show "good cause" why she should be permitted to do So. Such an appearance concluded her from further questioning the decree on jurisdictional grounds. "A party cannot come into court," says Brewer, J., in Burdette v. Corgan, supra, "challenge its proceedings on account of irregularities, and, after being overruled, be heard to say that he never was a party in court, or bound by those proceedings. If he was not in fact a party, and had not been properly served, he can have the proceedings set aside on the ground of want of jurisdiction, but he must challenge the proceedings on that single ground. This is familiar doctrine."

We come, then, to the question as to whether, under the showing made by the defendant, the court below erred in overruling her motion. Section 58, Hill's Ann. Laws, provides that the defendant against whom publication is ordered may "upon good cause shown and upon such terms as may be proper be allowed to defend after judgment and within one year after the entry of such judgment." There is some conflict in the decisions as to whether statutes similar to this are mandatory, so as to entitle a defendant who brings himself within their provisions to appear and defend as a matter of right, or whether the application is addressed to the sound discretion of the court, and will be interfered with by an appellate court only in cases of an abuse of discretion. The former rule seems to prevail in Wisconsin,-Berry v. Nelson, 4 Wis. 391; Pier v. Millerd, 63 Wis. 33, 22 N. W. 759,-while the courts of Minnesota take the latter view,-Washburn v. Sharp, 15 Minn. 63 (Gil. 43); Frankoviz v. Smith, 35 Minn. 278, 28 N. W. 508. But we do not think the application in the case is sufficient under either view. The statute requires a defendant to show "good cause" before he shall be entitled or permitted to appear and defend the action or suit. To do this he must show a sufficient excuse for his default, and, exIcept where the motion is on the ground of a want of jurisdiction, he must also show that he has a meritorious defense to the action or suit. 1 Freem. Judgm. § 108; 1 Black, Judgm. § 347; Ice Co. v. Schlenker (Minn.) 52 N. W. 219; Bailey v. Taaffe, 29 Cal. 422. Now, the moving papers of the defendant are confined entirely to showing an excuse for the default, and why she ought to be permitted to appear and defend, and, for that purpose, are manifestly sufficient if it appeared that in fact she had a defense. But upon this important question they are entirely silent, except a simple statement in the affidavit that she has a good and valid defense. The complaint charges, as a ground for divorce, that during the winter and spring immediately preceding the commencement of the suit the defendant was an inmate of a house of ill fame in Vancouver, Wash., plying her vocation as a common prostitute, and during such time she committed the crime of adultery with divers and sundry men. This allegation is wholly undenied in any way. Nor are there any facts set forth, either in a proposed answer or the affidavit accompanying the motion, which would constitute a defense thereto. The general statement that defendant has a good and valid defense to the suit is insufficient. The facts constituting such defense should have been set forth, so that the court could have determined whether they were sufficient for that purpose; and the proper practice is to accompany the motion with the answer which the party desires to file, which was not done

1. In an action to remove a cloud from a title, allegations that the tax deed under which defendant claims was void, because the officers who made the assessment and executed the deed were legally disqualified, and failed to publish proper notice, are insufficient, and, being mere averments of a legal conclusion, are not admitted by a demurrer.

2. Where an essential allegation was wanting in a complaint to which a demurrer was sustained, a subsequent decree of dismissal is not a bar to a second suit brought to enforce the same right.

3. Where plaintiff holds such legal title as affords an adequate remedy at law, he cannot maintain an action to remove a cloud, unless in actual possession.

4. Where plaintiff seeks the removal of a cloud on his title without being in actual possession, and defendant sets up a claim for improvements, the grounds for equity jurisdiction being shown, defendant cannot, after proceeding to trial on the merits, object that plaintiff has an adequate remedy at law.

5. Notice of tax sale under Hill's Ann. Laws, § 291, subd. 2, requiring four successive weeks' publication, must be published 28 days, excluding the first day, and including the day of sale.

6. The sheriff's return of a tax sale must show that it was at public auction, as required by statute.

Appeal from circuit court, Clatsop county; T. A. McBride, Judge.

Action by P. O'Hara against H. B. Parker to remove a cloud from a title. From a judgment for defendant, plaintiff appeals. Reversed.

This is a suit for the removal of a cloud from plaintiff's title. His complaint sets forth that he is the owner in fee simple, entitled to and in the actual possession of certain premises, described as lot No. 6 of section 24, township 8 N., range 9 W. of the Willamette meridian, in Clatsop county, Or., containing 10.75 acres; that the defendant claims to be the owner of the premises by virtue of a certain tax deed executed September 29, 1888, by G. W. Ross, then sheriff and tax collector of said county of Clatsop. A copy of this deed is set out in extenso, which is apparently regular on its face. The complaint further states that said deed is a cloud upon plaintiff's title, and prevents him from selling, disposing of, or incumbering the premises, and that defendant claims to be the absolute owner thereof, with the right to possess, occupy, hold, and use the same for his exclusive use and benefit. Many facts are then alleged, by reason of which it is claimed the sheriff's or tax deed con

stituting the cloud is rendered void and of no effect to pass the title. The defendant denies all the material allegations of the complaint, except the execution and delivery of the tax deed; and for a further and separate defense alleges that he is now, and ever since the 29th day of September, 1888, has been, the owner in fee simple and in the actual and peaceable possession of the premises; that, believing he was such owner, he honestly and in good faith made valuable improvements thereon, which has added to their value to the extent of $750. For a second further and separate defense the defendant alleges that prior to the commencement of this suit, to wit, on May 28, 1890, the plaintiff instituted a suit against him in the circuit court for Clatsop county founded upon the same facts and subject-matter, and demanding the same relief, as in the suit at bar. A copy of the complaint in that suit is then set forth in haec verba. The por tions thereof necessary for an understanding of its contents are as follows: "(1) That said plaintiff is the owner in fee and in possession of the following tract or parcel of land. * * (2) That said defendant, H. B. Parker, claims an estate or interest in said tract of land adverse to plaintiff, by reason of a certain pretended tax deed bearing record date September 29, 1888, and by him caused on the said 29th day of September. 1888, to be filed in the office of the county clerk of Clatsop county, Or., on page 594 of Book 12 of Deeds of said county. (3) Said plaintiff avers that said pretended tax deed was in truth and fact illegally and unlawfully issued by the officers of said Clatsop county to the defendant, for the reason that the county assessor of said Clatsop county, who assessed said tract of land in the year 1884 for taxation (upon which assessment said tax deed was issued), and also the county clerk and county sheriff of said Clatsop county, who authorized and issued and gave a tax deed to said defendant as alleged, were not qualified as directed by law, and failed to post and publish the proper notices as by statute provided for the taxation of real estate and the issuing and delivering of tax deeds, and failed to issue and deliver said tax deed as by law they were bound to do. (4) That said defendant paid to said sheriff of Clatsop county as aforesaid, on the 3d day of July, 1885, for said tax deed, the sum of four dollars. (5) That said tax deed still remains of record, and is a cloud upon plaintiff's title." The relief demanded was (1) that defendant be required to set forth the nature of his claim; (2) that it be declared and adjudged that defendant has no estate nor interest in said premises, and that plaintiff's title is good and valid; and (3) that defend ant be forever enjoined from asserting any claim whatever to said premises adverse to plaintiff. It is further shown that a demurrer was interposed to this complaint, assigning as a reason therefor that it does

not state facts sufficient to constitute a cause of suit. This demurrer was sustained by the court, and leave granted to file an amended complaint within 60 days. At the expiration of this period, the plaintiff refusing to plead further, a decree was given and entered dismissing his complaint and for costs. This decree is pleaded as a bar to the present suit. Plaintiff demurred to this defense, and, the demurrer being sustained, a trial was had upon the merits, which resulted in a decree for defendant, from which plaintiff appeals.

J. H. Smith and T. Smith, for appellant. C. W. Fulton, for respondent.

WOLVERTON, J. (after stating the facts). We will consider, first, whether the decree upon the demurrer is a bar to this suit. It is settled by this court that "a decree sustaining a demurrer to a complaint, and dismissing the suit, because it does not state facts sufficient to constitute a cause of suit, is, until reversed, a final determination of the issues presented by such complaint, and can be pleaded as a bar to a subsequent suit for the same cause." Hume v. Woodruff (Or.) 38 Pac. 192. Upon this proposition there seems to be no conflict of authority. See Black, Judgm. § 707; Messinger v. Insurance Co., 59 Fed. 416; Nickless v. Pearson (Ind. Sup.) 26 N. E. 478; Alley v. Nott, 111 U. S. 472, 4 Sup. Ct. 495; Bissell v. Spring Valley Tp., 124 U. S. 231, 8 Sup. Ct. 495; Kimbro v. Railway Co., 56 Ga. 187; Wells, Res Adj. § 455. It is equally well settled, however, that when an essential allegation is wanting in a complaint to which a demurrer is sustained, followed by a decree of dismissal, which allegation is fully supplied in the second suit, the decree in the first is not a bar to the second; and this is so although the respective suits were instituted to enforce the same right, for the reason that the merits of the case as disclosed in the second complaint were not heard and decided in the former suit. Gould V. Kailroad Co., 91 U. S. 534; Gilman v. Rives, 10 Pet. 298; Black, Judgm. § 707. The complaint in the case at bar was framed with the purpose in view of removing a cloud from title. It is held that in such a suit the complaint should state the nature of defendant's claim which constitutes the alleged cloud, and then state such facts and circumstances in respect to the claim as to show its invalidity. The suit is substantially one to determine the validity of some instrument or proceeding which it is claimed injuriously affects or clouds plaintiff's title. Teal v. Collins, 9 Or. 91. A suit to remove a cloud and one to quiet title are essentially different. In the latter it is sufficient to allege that the defendant claims an estate or interest in the property adverse to the plaintiff, and call upon him to assert the

nature and character of such adverse estate or interest, and subject it to a judicial investigation, that the right of possession between them may be forever quieted. See Teal v. Collins, supra; Stark v. Starrs, 6 Wall. 410. It is a common-law equitable remedy, which was resorted to by the party in possession of real property, where successive actions in ejectment had been brought against him, all of which had failed. Ejectment at common law being founded in fiction, and ɔased upon a fictitious demise between fictitious parties, a judgment thereon did not constitute a bar to another or many similar actions for the same premises. Hence, to prevent being harassed and annoyed by continued unsuccessful assaults against his title, the party in possession could resort to this equitable remedy to enjoin further actions in ejectment, and thereby determine the controversy, and forever set at rest and quiet his title. The remedy was also made available when many persons asserted equitable titles against a plaintiff in possession holding by legal or equitable title. Section 504, Hill's Ann. Laws Or., is an enlargement of this equitable remedy, and it is now the right of any person in possession of real property, by himself or his tenant, founded upon title, either legal or equitable, to have this remedy enforced against any person claiming an estate or interest adverse to him, without waiting for his possession to be disturbed by legal proceedings, or for successive or any judgments in ejectment to be given in his favor; whereas at common law it was necessary to await the action of the claimant, and to bide the time of defeating him in successive actions in ejectment, before the suit could be instituted. Section 504 is also regarded as governing, wherever applicable, in cases of suit to remove cloud from title.

It is difficult, from the complaint filed in the prior suit, to ascertain whether the pleader intended by it to institute a suit to remove a cloud or to quiet the title to the premises in question. The prayer would seem to indicate that his purpose was to quiet the title, while from the body of the complaint we take it that he intended to remove a cloud therefrom. It is alleged that "the defendant claims an estate or interest in said tract of land adverse to plaintiff, by reason of a certain pretended tax deed," describing it. Then it is alleged that said deed is void for the reason that the assessor who made the assessment, and the sheriff and clerk who were authorized to execute the deed, "were not qualified as directed by law, and failed to post and publish the proper notices, as by statute provided, for the taxation of real estate and the issuing and delivering of tax deeds, and failed to issue and deliver said tax deed as by law they were then bound to do," and that the deed is a cloud upon the title. The

court below in deciding the demurrer evidently passed upon it in this light, and was undoubtedly right in his conclusion. The complaint perhaps sufficiently describes the instrument by which it is claimed the title is clouded, but the statement of its infirmities are mere conclusions of law. Not a single fact is alleged which, if admitted, would render the deed invalid. A demurrer only aumits facts which are well pleaded, but mere averments of a legal conclusion are not admitted by it, unless the facts and circumstances set forth are sufficient to sustain the allegation. Gould v. Railroad Co., supra, and Dillon v. Barnard, 21 Wall. 437. So that it cannot be said that this first complaint stated any facts which, if proven or admitted to be true, would be equivalent to a trial upon the merits of the case. It is not so with the complaint in the case at bar. Many specific facts and circumstances, touching the assessment and equalization of | taxes for the year 1884, and the method of the execution thereof, by virtue of which the premises were sold and tax deed executed, are minutely and concisely alleged, showing the apparent invalidity of the instrument by which it is claimed plaintiff's title is clouded. So we conclude that as the former complaint stated no facts which in themselves would constitute a cause of suit, and upon which the case could have been determined upon its merits, the decree of the court sustaining the demurrer thereto, and dismissing the cause, is not a bar to the present suit.

It was a disputed question at the trial whether plaintiff was in possession of the premises at the date of the commencement of the suit. We are satisfied from the testimony that he was not in the actual possession, either by himself or his tenant, and it is now made a question of law for our determination whether actual possession was necessary to enable plaintiff to maintain this suit to re move a cloud from his title. It has been held by this court (Thompson v. Woolf, 8 Or. 454) that constructive possession, such as would result from a conveyance by deed from one in possession, is sufficient to maintain the suit; the reasoning being that such a deed confers seisin in the grantee without entry, and that seisin is constructive possession. This is possession in law which follows in the wake of title, and is distinguished from actual possession,-"pedis possessio,"-which means a foothold upon land accompanied with the real and effectual enjoyment of the estate, with the reception of its fruits, its rents, issues, and profits, and is usually evidenced by occupation, by a substantial inclosure, by cultivation, or by appropriate use, according to the particular locality and quality of the property. The syllabus does not appear to be deducible from the opinion or the statement of the case. It states that "one owning wild lands, which he holds by

deed from one seised by deed, is in such possession as to enable him to bring a suit in equity to remove a cloud from title, under section 500 of the Code." But the question as to whether the lands were wild was not considered by the court. Standing opposed to this decision is a later one by this court, that of Coolidge v. Forward, 11 Or. 120, 2 Pac. 292, wherein Watson, J., speaking for the court, says: "The language of this section [500, now known as section 504] imports that actual possession was intended, and such has been the uniform construction placed upon similar provisions to be found in the Codes of many of the other states,"-citing several authorities, among others Wals v. Grosvenor, 31 Wis. 681. So that the doctrine of Thompson v. Woolf is denied, or rather impliedly overruled, by Coolidge v. Forward. These cases are cited by the counsel for the respective parties as authority in support of their opposing views, the plaintiff claiming that the possession necessary to support the suit may be constructive only, while the defendant insists that it must be actual, thus rendering a further examination of the question necessary. The Wisconsin case of Wals v. Grosvenor, supra, arose under a statute very similar to ours. The court there decided that, before he could avail himself of this equitable remedy, the plaintiff should be in actual and visible possession, expressly overruling Taylor v. Rountree, 28 Wis. 391, which announced the doctrine that one in the constructive possession of wild and uncultivated land was in position to maintain the suit. The reasoning upon which the opinion is based was that a party out of possession had an adequate legal remedy, and referring to the statute of that state providing for the recovery of the possession of real property. Here again the statute is similar to ours, which provides that an action for such recovery shall be commenced against the person in the actual possession at the time, or, if the property be not in the actual possession of any one, then against the person acting as the owner thereof. Hill's Ann. Laws Or. § 316. Mr. Pomeroy, in note 1 to section 1399, volume 3 of his Equity Jurisprudence, says: "When the estate or interest to be protected is equitable, the jurisdiction should be exercised, whether the plaintiff is in or out of possession, for under these circumstances legal remedies are not possible; but, when the estate or interest is legal in its nature, the exercise of the jurisdiction depends upon the adequacy of legal remedies. Thus, for example, a plaintiff out of possession, holding the legal title, will be left to his remedy by ejectment. Where, on the other hand, a party out of possession has an equitable title, or where he holds the legal title under circumstances that the law cannot furnish him full and complete relief, his resort to equity to have a cloud removed ought not to be questioned." This doctrine is approved and sustained by Dull's

Appeal, 113 Pa. St. 510, 518, 6 Atl. 540, the court saying: "Of course it [the jurisdiction to remove a cloud] must be exercised only in plain cases, and with much care, and not at all where the party has an adequate remedy at law." In Moores v. Townshend, 102 N. Y. 393, 7 N. E. 401, Ruger, J., speaking for the court, says: "We have been unable to find any case where a party out of possession has been allowed to sustain an action quia timet to remove a cloud upon title, except when it was specially authorized by statute, or when special circumstances existed affording grounds for equitable jurisdiction, aside from the mere allegation of legal title. Indeed, the right to resort to a court of equity in such cases was originally based upon the assumption that the legal title to the property had been established by an action at law, and jurisdiction was entertained solely for the purpose of protecting the party in the enjoyment of rights in possession thus legally established, and, while the jurisdiction has in course of time been somewhat extended, it has never been stretched to cover cases brought merely to establish a legal title or recover possession alone." To the same effect see Allen v. Hanks, 136 U. S. 311, 10 Sup. Ct. 691; Frost v. Spitley, 121 U. S. 556, 7 Sup. Ct. 1129; Fussell v. Gregg, 113 U. S. 550, 5 Sup. Ct. 631; U. S. v. Wilson, 118 U. S. 89, 6 Sup. Ct. 991. So it seems that, when an adequate remedy at law exists, a court of equity will not assume jurisdiction to remove a cloud from title. If a party is in possession, he cannot have ejectment by which to establish his title and right of possession, and thereby set at rest any claim or controversy touching either. Hence it is that equity provides him with a remedy whereby any person holding a deed or other instrument which may be vexatiously or injuriously used against him after the evidence to impeach or invalidate it is lost, or which may throw a cloud or suspicion over his title or interest, and thereby impair the full and adequate use of it, may be required by a competent court, upon a proper showing, to surrender or deliver up such deed or instrument for cancellation, or enjoined from the injurious use of the same. Ordinarily, a party out of possession, holding the legal title to real property, has an ample remedy by ejectment, but not always. It sometimes happens that he holds such a title under circumstances rendering full and adequate relief at law unavailable. In such a case, equity will come to his relief; otherwise he must seek it on the law side of the court. In every action of ejectment, the party having the true legal title is in the constructive possession of the property in dispute, and the purpose of such action is to draw the actual to the constructive, or to settle the right of actual possession with the legal or better title in one and the same person. So that constructive possession may be in the one having the actual possession, or it may be in the other par

ty to the action. Now, if a suit to quiet title could be based upon constructive possession alone, to compel him who is in the actual possession to set forth his title, that it may be judicially determined, the remedy would be concurrent with that at law by ejectment, and the simple question as to who has the better legal title could be determined in a court of equity as well as at law. Such a proposition is unsound and untenable, in view of the authorities. "Where the simple question is as to which is the better legal title, the party should go to a court of law, if he is in a position to bring both titles before that tribunal." Booth v. Wiley, 102 Ill. 114, and note to 3 Pom. Eq. Jur., cited above. In some states relief is afforded in equity to a party out of possession, where the land is wild and uncultivated, but our statute makes no such provision. It provides simply that any person in possession, by himself or tenant, is entitled to bring the suit. The rules that govern at common law must therefore govern as to the administration of this equitable jurisdiction in our courts. We take it, therefore, that actual possession is necessary and requisite for the maintenance of a suit to remove a cloud from title, where the plaintiff, as in this case, holds the legal title.

Plaintiff contends, however, that notwithstanding the fact that he may not have been in possession of the premises, yet that by reason of the defendant having answered to the merits, and submitted himself to equitable cognizance, by proceeding with the trial of the cause without objection to the jurisdiction of the court to try and determine the matters in controversy, he has waived his right to object to the proceeding upon the ground that a court of equity is without jurisdiction. That a court of equity has jurisdiction to remove a cloud from title is undoubted, but, as a condition of the court's exercising it, the plaintiff must be in possession, if he is the owner of the legal title, under circumstances that the law can afford him ample relief. This condition, however, can be waived by the parties, and, if the court proceeds with the exercise of jurisdiction, it can grant the equitable relief appropriate in such cases. Lord, C. J., in Kitcherside v. Myers, 10 Or. 23, says: "The objection to the jurisdiction on the ground of an adequate remedy at law, in the absence of a demurrer to the complaint, comes too late after the defendant has, by his answer, put himself upon the merits, and asked the court to determine the equities in the suit,"-citing Creely v. Brick Co., 103 Mass. 515, which was a suit to enjoin a nuisance, and it was claimed that plaintiffs had an adequate remedy at law for trespass, and hence that a court of equity was without jurisdiction. The court there say: "The subject-matter of the bill, therefore, was clearly within the equity jurisdiction of the court. The objection that the plaintiff has a complete and adequate remedy at law, even if well found