p. 115commissioners of the town executed an assignment of said 250 shares, and of the certificate under which they were held to “Jay Gould, trustee for the Erie Railway Company,” who, December 29, 1871, surrendered said certificate, with assignment indorsed thereon, to. the Avon, Geneseo & Mt. Morris Railroad Company, which issued a new certificate to Jay Gould, as trustee,” which was dated that day, and numbered 262. March 8, 1872, Jay Gould assigned and transferred certificate No. 262 to Hugh J. Jewett, as receiver, Avho, March 22, 1876, surrendered said certificate and assignment to said railroad corporation, and received a new certificate for said shares in his name, as receiver. May 10, 1880, said Hugh J. JeAvett, as receiver, assigned said shares to himself as president, and the certificate was surrenderd to said railroad corporation, and a neAV certificate for said shares AA’ere issued to Hugh J. Jewett, as president. February 10, 1885, Hugh J. JeAvett transferred said shares to the defendant, John King, as trustee, who surrendered said certificate and received a neAV one therefor, under AA'hich said shares are now held by said John King, as trustee for the New York Lake Erie & Western Railroad Company, AA’hich has succeeded to the rights of the Erie EailAA-ay Company in said shares and in and to the railroad of the Avon, Geneseo & Mt. Morris in said shares and in and to the right of the Avon, Genese Mt. Morris Railroad Company, December 27, 1871, the Awon, Geneseo & Mt. Morris Railroad Company and the Erie Rail-AA-ay Company entered into a contract by AA’hich the former leased to the latter its railroad for and during the full term of its charter, and for any extensions or renewals thereof AA’hich might be granted in consideration of the payment of 6 per cent, upon the capital stock of the first named corporation, payable semi-annually, and of the interest on $20,000 of the mortgage bonds of said corporation, together Avith $1,000 annually for the expense of maintaining its corporate existence. Thereafter the Erie Raihvay Company entered upon possession of said railroad, and it and its successors have maintained and operated it from that time to the present.
William A. Sutherland, for appellant.
George F. Brownell, for respondents.
The pleadings present an issue as to whether the lease betAveen the A.von, Geneseo & Mt. Morris Railroad Company and the Erie RaihA’ay Company and the title of the successors of the latter corporation to the shares of stock have been forfeited by the alleged fail
p. 116ures of tlie lessee and its successors to-- operate the road of"1 the lessor in accordance with the terms o£ the lease; but the issue has dropped out of the case. There is no finding-of fact upon it, nor was there any request preferred by either party for a finding on this issue.. Hone of the findings of fact are challenged by the plaintiff, and no exception was taken in its behalf on the trial, and so this judgment must be reversed upon the facts found by the special term. However this issue was determined adversely to .the-plaintiff when this case was brought before the late general-, term on an appeal from an interloctuory judgment overruling a demurrer to the complaint. It was then held’ that there had been no forfeiture of the lease or of the right of the defendants to the share transferred to their predecessor: 77 Hun, 18 , 28 N. Y. Supp. 281 . The only ground for a: recovery in this action presented by this record is that the-sale of the shares made December 26, 1871, by the commissioners of the town, was void, under the fifth section of chapter 907 of the Laws of 1869, because the sale was not for- cash.
Among other defenses interposed as-a bar to this action are the 6, 10, and 20 years’ statutes of limitations. For-the-purpose of avoiding these defenses, the position is taken in behalf of the plaintiff that this is an action to remove a cloud upon its title, and that, so long as the cloud exists, the statutes of limitations do not run. In case a person is in the possession of property, claiming to be its owner, and anoth crasser ts that he has title thereto or a lien thereon, by virtue-of a written instrument which, on its face, affects the title- or creates a lien, such an instrument is a cloud on its title. A bill quia timet or an action to cancel the instrument may be maintained, which is an action to remove a cloud; 1 ut su'ch an action is never an appropriate remedy for the recovery of property which the plaintiff has transferred and surrendered the possession of to the defendant or to his predecessor in title. Actions falling under the general head of “Equity Jurisprudence,” known as “quia timet “actions’6 (such as actions to cancel instruments and remove clouds), are purely preventive remedies for avoiding apprended injuries which may be occasioned to the plaintiff’s title by reason of some action which may be taken in the future by the defendant, under and by virtue of the instrument alleged to be a cloud. Fonbl. Eq. c. 1, § 8; Snell, Eq. (9th. Ed.) 728 et seq.; Story, Eq. Jur. § 692 et seq.; Pom. Eq. Jur. § 1398; 2 Am. & Eng. Enc. Law, 298. The case at bar is in no sense an action to remove a cloud on title, but it is an action for the recovery of specific property, and it is barred by the lapse of 20 years; since the cause of action accrued. If it be said—and it can be—that there are cases in this
p. 117.and -other states breaagM for the recovery of property, and incidentally, for the (Cancellation of instruments standing, in the way of recovery., which are called “bills quia timet’y .and “actions to remove «clouds upon title,” it may be an.swered that, apon an examination of those eases, it will be .found that the names .given to those actions were not important, and that they were loosely called “actions to remove .clouds” or “bills quia .timet.” though in fact they were ¡not shell, but were actions for the recovery of property and for the .cancellation of instruments standing in the way of recovery.. Again an action in the nature of a bill quia timet,1 like an action for the specific performance of a contract;, is-not maintainable umless equities of the plaintiff are clearly.' ■established,, and the action is brought without reasonable ■ (delay. There is no equity in the plaintiff’s case. Before-any -steps were taken to sell the plaintiff’s stock, a town; meeting was called, which was largely attended. The terms - of the sale were discussed, and it was voted with but one-dissenting voice that the stock should be sold on the terms-offered. After this an unquestionable majority of the taxpayers of the town, representing a majority of the taxable property thereof, petitioned the county judge of the county that the commissioners be authorized to sell the stock on terms offered, which prayer was granted, and the sale openly and publicly made in pursuance of the order. After the lapse of 20 years, 5 months and 27 days from the date of the transfer, this plaintiff brings this action to set aside its own voluntary transfer, ou the ground that it was not authorized by the terms of the statue. There was no fraud in the transaction, no concealment, and the situation has been known to the officers of the town and to all its taxpayers during all these years. If • the plaintiff ever had a right set aside this sale, it has slept so long upon that right, and has acquiesced in the situation for such a length of time, that a court of equity will grant it no relief,
It is urged that the sale of the stock was void because it was not for cash. Section 5 of chapter 907 of the Laws of 1869 (the act under which the town was bounded, the stock taken and sold) provides:
“Such stock * * * purchased by said commissioners may be sold by them ® "* * only upon the order of the county of judge, made upon the petition of a majority the taxpayers of said municipal corporation representing a majority of the taxable property thereof, as shown by the last preceding tax list or assessment roll; and the proceeds from such sale shall be forthwith paid by them to the treasurer for other proper officer) of such municipal corporation, to be by him vested in a sinking fund, as hereinafter provided.
p. 118It is said that People v. Eddy, 57 Barb. 593 , is a controlling authority for the position asserted by the plaintiff that the sale was absolutely void, and incapable of ratification. The case arose under a different statue, —chapter 64 of the Laws of 1856, as amended by chapter 401 of the Laws of 1857, the sixth section of which provided.
“They [the commissioners] may dispose of such work in their discretion to any purchaser or purchasers for cash; but shall not sell or dispose of such stock at less than par except upon a written request of a majority of the tax payers of said town, their heirs or legal representatives representing a majority of the taxable property of that town appearing upon the last assessment roll proof of which shall be by affidavits.”
The section under which the sale in the case at bar was made does not in terms require that the- stock of towns shall be sold by the commissioners for cash; and, besides, in this case, every interest in the town the commissioners, the taxpayers and the officers of the town—assented to this sale, have acquiesced in it for 20 years, and, if this question were an important one, it would be necessary to consider the difference between the two statutes, and the facts lying at the foundation of each case; also whether the statutory pro vison is simply a limitation on the power of the commissioners or is a limitation on the power of the town. The power to dispose of property is an incident of ownership, unless the owner is under some disability. Had the commissioners with the assent of the taxpayers and of the county judge, exchange these shares for a site for a town house, or for other property which the town was authorized to acquire would it be clear that such a sale was void, and could be set aside, after it had been acquiesced in for 20 years, and without restoring or offering to restore, the consideration received? But, as this case may be well decided upon other grounds, it is unnecessary to consider the one last suggested.
The judgment should be affirmed, with costs. All concur.