Page:North Dakota Reports (vol. 3).pdf/103

 it necessary to enter further than to cite the cases below, and say that in our judgement this action is essentially equitable in character; and, while the facts are not set out in the complaint which show a cloud upon plaintiff's title, yet it is still true that the record shows such a cloud, and the judgement below removes the cloud. Plaintiff being in possession, and a cloud being cast upon his title by the tax deeds, an action would lie in equity to remove the cloud, and no court other than a court of equity could remove the cloud by a decree. We think that the fact that plaintiff has availed himself of the practice in other states, and has not set out in the complaint the facts showing a cloud upon his title, does not alter the essential objects of the suit. Plaintiff cannot, on the one hand, invoke equitable relief, and avail himself of the powers of a court of equity, and, on the other hand, escape the consequences of being in a court of equity. Besides, the two sections of the statute above quoted apply alike to actions at law and suits in equity. The peculiar nature of the so-called statutory action is fully considered in the cases cited below. More v. Steinbach, 127 U.S. 70; 8 Sup. Ct. Rep. 1067; Whitehead v. Shattuck, 138 U.S. 146; 11 Sup. Ct. Rep. 276; Holland v. Challen, 110 U.S. 15; 3 Sup. Ct. Rep. 495.

Appellant’s counsel further contends that plaintiff cannot invoke the powers of a court, of equity in his behalf, becasebecause [sic], as counsel argues, he has not done equity by offering to pay his proportional share of the public burdens. Counsel claims that, if no valid taxes have been assessed or levied against the lots, still a court of equity would, as a matter of conscience, refuse to remove the cloud until plaintiff had first tendered payment of his proportional share of the public burdens, which should have been assessed as taxes, but which where not assessed. This rule seems to have the sanction of some courts, while other courts have refused to apply it. We cannot adopt the doctrine, not only because we are governed by statutes which are designed to regulate the practice in tax cases, but, on principle, this court is opposed to the theory that a taxpayer should, especially where the collection of the