qualified, and acting administrator of said estate. "III. That prior to the death of the said William Nicholson, and on or about the 15th day of November, 1919, the said William Nicholson and Adalaide Nicholson, his wife, made and executed to the plaintiff herein a deed containing general covenants of warranty deed, conveying to said plaintiff the following described real property in Ravalli county, Montana, to wit: The west half (W.) of the southeast quarter (S. E. 1), and lots numbered six (6) and seven (7) of section 26; and lot numbered 2, section 35, all in township 4 north, of range 21 west, Montana meridian, containing 134.36 acres, more or less. "IV. That said deed, executed and acknowledged by the said William Nicholson and Adalaide Nicholson, so as to entitle the same to record, was by the said grantors delivered to the plaintiff herein and by him placed in a receptacle and kept and not filed for record, and that thereafter, without the knowledge and without fault on part of the plaintiff, the said deed was removed from the place where it had been kept by him, and either lost or destroyed, and said deed cannot be found by the plaintiff after due and diligent search and inquiry, and the plaintiff alleges that he has made due and diligent search and inquiry and has been unable to find said deed, or any trace thereof, and therefore alleges that the same has been lost without fault on part of the plaintiff. laide Nicholson, the wife of said William Nicholson, Ida Owens, formerly Ida Nicholson, a daughter of said deceased, and the plaintiff herein, a son, are the sole and only heirs at law of the said William Nicholson, deceased. "Wherefore plaintiff prays for a decree of this court ordering the said Adalaide Nicholson and Ida Owens, as heirs of said deceased, to join in a conveyance of said premises to the plaintiff herein, and for such further and other relief as to the court seems meet in the premises." After issues were joined, the cause was set down for trial and tried with a jury in attendance. At the close of the testimony, interrogatories were propounded to the jury. All these were answered in plaintiff's favor and were adopted by the court. A decree was entered quieting the title to the premises in plaintiff. From this decree Ida Owens appealed. An At all stages of the proceedings appellant urged the objection that the complaint failed to state facts sufficient to constitute a cause of action. With this contention we are constrained to agree. Respondent, however, argues that the action was one to restore a lost deed, and that, for that purpose, the allegations of the complaint are sufficient. analysis of the purpose of the action will disclose the entire absence of jurisdictional facts, either for the restoration of the instrument, or to quiet the title. In Jacobson v. Roman, 57 Mont. 299, 188 Pac. 138, the late Chief Justice Brantly says: "It is well settled that, when a deed has once been executed and delivered, but has been lost or destroyed before it is properly recorded, and the title of the grantee is thus affected, a court of equity has jurisdiction to decree a restoration of it. The right of the owner of real estate to have his evidence of title appear properly upon the record is a substantial property right which the law recognizes, and a court of equity will entertain action "VI. That the defendants Ada- by him against his grantor to estab "V. That the plaintiff did not discover the loss of said deed until after the decease of the said William Nicholson. That the said deed was made, executed, and delivered by the said grantors to the plaintiff, for a valuable consideration, and that the plaintiff entered upon the possession of said premises, and is now in possession of the same, and that the loss of said instrument before the same was recorded leaves a break in the chain of title to said premises. (67 Mont. 517, 216 Pac. 328.) lish the lost deed when such relief is necessary to protect his rights in this behalf." Pleading lish lost deedsufficiency. In support of this statement a number of authorities are cited. It is apparent from the language used that it was the intention of the court in that instance to petition to estab- Say that one of the jurisdictional facts in such an action is that the "title of the grantee" is injured by the absence of the instrument. It must, therefore, appear that the plaintiff has some interest in the property which the absence of the deed affects. There is, in the complaint, as will be seen from a casual examination, an entire absence of allegation showing any title or interest of the plaintiff in the premises. If it be said that title has been deraigned, still the complaint is insufficient, for it is nowhere alleged that plaintiff's grantors were the owners of or interested in the premises at the time of the execution of the deed. Lost instrument -action to restore-nature. In its nature an action to restore a lost instrument is analogous to an action to quiet title. And indeed, under a prayer for general relief in such an action, we are of the opinion that the entry of a decree quieting title is within the powers of a court of equity, where the pleading and proof are sufficient. The apparent difference between the action to restore a lost instrument and one to quiet title, if there be any difference, is that, in the former action, ordinarily, both the title of the plaintiff and the title of the defendant are deraigned in the complaint, which must disclose that, notwithstanding an apparent interest of defendant, in equity and good conscience the property belongs to plaintiff; and in the latter action the complaint need only allege the ultimate fact of plaintiff's interest and an outstanding claim of interest on the part of the defendant. In case either the restoration of the instrument or the quieting of the title is sought, where the action is based upon a lost instrument, the ownership of valueless papers and to restore them to existence would be intolerable. At this point it should be noted that the proof is no stronger than the complaint. In implied amend action. other words, there Pleadingis no deraignment ments-failure to of title by the evi- prove cause of dence. The doctrine of implied amendments, therefore, cannot obtain. It is apparent that the trial court treated the action as one to quiet title and entered the decree accordingly. With this position we could agree, if it were not for the fact, which has been pointed out, that neither the pleading nor proof are sufficient to show any interest in plaintiff in the premises. As to the necessity of such allegations and proof in actions to quiet title, see Boucher v. Barsalou, 25 Mont. 439, 65 Pac. 718; Merk v. Bowery Min. Co. 31 Mont. 298, 78 Pac. 519; Pollock Min. & Mill. Co. v. Davenport, 31 Mont. 452, 78 Pac. 768, and Violet v. Martin, 62 Mont. 335, 205 Pac. 221. Appellant also takes the position that, even admitting the sufficiency of the complaint, the evidence does. not disclose that the deed was ever delivered, and that therefore plaintiff is not entitled to any relief. Since the case must be sent back on other grounds, we will not go into this phase of it further than to say that, in our opinion, there was sufficient testimony to support the findings on that question. It may be said that there was a conflict in the testimony on that question, but it was for the trial court to resolve that conflict. The Appeal-conevidence does not so clusiveness of finding. clearly preponderate against the findings in that respect that we can say that in no event can plaintiff recover. Per Curiam: For the reasons given in the foregoing opinion, the judgment appealed from is reversed, and the cause is remanded to the trial court, for further proceedings not inconsistent with the views expressed in the foregoing opinion. ANNOTATION. Right of action to restore lost deed. It is generally held that in order to obtain restoration or re-execution of a deed which has been lost or destroyed, the petitioner's title, right, or interest, present or future, in land or other property, or evidence in respect thereto, must be affected by the loss or destruction of the deed. United States. Virginia & W. V. Coal Co. v. Charles (1917) 251 Fed. 83, affirmed in (1918) 165 C. C. A. 599, 254 Fed. 379; Midkiff v. Colton (1918) 164 C. C. A. 344, 252 Fed. 420, reversing (1917) 155 C. C. A. 149, 242 Fed. 373, certiorari denied in (1918) 248 U. S. 563, 63 L. ed. 423, 39 Sup. Ct. Rep. 8. Florida. Griffin v. Fries (1887) 23 Fla. 173, 11 Am. St. Rep. 351, 2 So. 266. Georgia. Orr v. Dunn (1916) 145 Ga. 137, 88 S. E. 669. Illinois. Hudson v. Hudson (1919) 287 Ill. 296, 122 N. E. 497. Indiana.-Hoddy v. Hoard (1851) 2 Ind. 474, 54 Am. Dec. 456. Iowa. See Lash v. Butch (1856) 4 Iowa, 215. Kentucky.-Blight v. Banks (1827) 6 T. B. Mon. 192, 17 Am. Dec. 136; Louisville & N. R. Co. v. Letcher County Coal & Improv. Co. (1922) 195 Ky. 297, 243 S. W. 45. Maine. Lancy v. Randlett (1888) 80 Me. 169, 6 Am. St. Rep. 169, 13 Atl. 686. Maryland. See Shugars v. Shugars (1907) 105 Md. 336, 66 Atl. 273. Minnesota.-Towle v. Sherer (1897) 70 Minn. 312, 73 N. W. 180. Missouri. Bohart v. Chamberlain (1889) 99 Mo. 622, 13 S. W. 85; Haworth v. Haworth (1906) 123 Mo. App. 303, 100 S. W. 531; Morris v. Parry (1908) 218 Mo. 701, 118 S. W. 430. Montana. Jacobson v. Roman (1920) 57 Mont. 299, 188 Pac. 138. See also the reported case (NICHOLSON V. NICHOLSON, ante, 548). Nevada. 2 Nev. 209. Low v. Staples (1866) New Hampshire. See Lawrence v. Lawrence (1860) 42 N. H. 112. New York. Kent v. Church of St. Michael (1892) 136 N. Y. 10, 18 L.R.A. 331, 32 Am. St. Rep. 693, 32 N. E. 704; Dull v. Rohr (1895) 13 Misc. 530, 35 N. Y. Supp. 523. North Carolina. See McCormick v. Jernigan (1892) 110 N. C. 406, 14 S. E. 971. Tennessee. Hord v. Baugh (1847) 7 Humph. 576, 46 Am. Dec. 91; Anderson v. Akard (1885) 15 Lea, 182; King v. Pillow (1891) 90 Tenn. 287, 16 S. W. 469. Cartright v. Cartright (1912) 70 W. Va. 507, 74 S. E. 655, Ann. Cas. 1914A, 578. Application of rule-loss of deed as affecting title. In Midkiff v. Colton (1918) 164 C. C. A. 344, 252 Fed. 420, reversing (1917) 155 C. C. A. 149, 242 Fed. 373, certiorari denied in (1918) 248 U. S. 563, 63 L. ed. 423, 39 Sup. Ct. Rep. 8, in supporting a decree establishing a lost deed, it was said: "The jurisdiction of the court of equity cannot be doubted. True, there is authority for the statement that, where nothing more appears than that a claimant to land wishes to assert title under a lost deed, equity will not aid him to establish it, because he may at once bring his action of ejectment and avail himself of the lost deed by proving its execution and contents as effectually at law as in equity. Whitfield v. Fausset (1749) 1 Ves. Sr. 392, 27 Eng. Reprint, 1100; 1 Story, Eq. 84. With the correctness of this view we are not concerned, for the bill sets out other grounds for equitable relief in alleging that by the Kuhn deed the surface and minerals were severed, that since its execution the defendants have not been in possession of the minerals, that the deed was left in the custody of the grantees and accepted by them, that they have either inadvertently lost it or fraudulently destroyed it, that it has not been recorded, and that in contravention of it defendants have recently asserted title to the minerals. The deed not being recorded, there is danger to the complainants of a conveyance by the defendants to a bona fide purchaser, without notice of the severance of the surface from the minerals and of the complainants' ownership of the minerals, relying on the defendants' occupancy of the surface as conferring title by adverse possession of both surface and minerals. Moreover, the market value of complainants' property is affected by their inability to show by a record of the Kuhn deed that defendants' occupancy of the surface was not adverse holding of the minerals. Equity will aid a claimant to land in establishing a deed upon which his title depends, lost or destroyed by an adverse claimant, to the end that he may, by preserving and recording, protect himself against a bona fide purchaser for value, and that he may be able to show a good, marketable title. The right to invoke the protection of the court of equity under such circumstances is established by authority from which there is no dissent." In Owen v. Paul (1849) 16 Ala. 130, the complainant, Paul, who sought re-execution of a deed to land which he alleged had been conveyed to him by the husband and father of the defendants, asserted that the deed thereto had been deposited by him with the clerk of the county court for registration, and had disappeared, and also that the lots had been the subject of several conveyances thereafter. It was said: "It is objected to this bill on the part of the plaintiff in error that the complainant therein does not show a title to the relief which he seeks, not being in possession, nor entitled to the possession, but the estate belonging to others. The complainant is bound by his covenant of warranty to protect and defend the title of the persons to whom he sold, and, in order effectually to do this, he must have the evidence of his title which he swears is lost. We think the peril to which he is exposed by reason of the loss of the only evidence of title which he held to the lots in question is sufficient to entitle him to come into this court for the establishment of his title. He but invokes the exercise of a very salutary jurisdiction which the court of equity possesses, of administering preventive justice." The jurisdiction of a court of equity to order the re-execution of a deed which has been destroyed exists where the loss would create a defect in the deraignment of the plaintiff's title and embarrass the assertion of his rights to the property. See Cummings v. Coe (1858) 10 Cal. 529, wherein the reexecution of a deed was ordered, although the grantor claimed to have repurchased the property at a sheriff's sale following a judgment recovered against the plaintiff. No deed ap peared to have been executed to consummate the sheriff's sale, and moreover it was said that the defendant, in the re-execution of the original deed, might recite therein the destruction of the first deed and the object of the re-execution. In Blight v. Banks (1827) 6 T. B. Mon. (Ky.) 192, 17 Am. Dec. 136, a bill stating, inter alia, the loss of certain unrecorded conveyances, wherefore the title to land remained in jeopardy, prayed that the petitioner's title be made complete as a recorded title. The court said: "Equity will frequently interfere to remove difficulties in land titles, where a party cannot proceed without difficulty at law, when the conveyances are lost, or in the possession of the opposite party, or where the parties are numerous, and the proof hard of access, and in many such cases it will lighten the burden, and settle many controversies and bring them into a small scope. And where the title is purely legal, for such and similar causes, to those we have enumerated, equity has carved out a branch of jurisdiction, and a class of bills, termed in the books 'ejectment bills,' in which not only the title is made clear, but the possession decreed also. No reason is perceived by us why the present case is not within the spirit of these cases. The difficulties in an unrecorded title, especially if it is derived through a long chain of conveyances, are familiar to our courts in this country. The danger to which the title is exposed from two classes of persons, creditors and subsequent purchasers, is often great, and the facilities afforded from a title which can be read in evidence without other proof than the authentication annexed, are felt by everyone who has to bring his title into court for attack or defense, and the present case will furnish a good comment on the propriety of the interference of the chancellor." In Louisville & N. R. Co. v. Letcher County Coal & Improv. Co. (1922) 195 Ky. 297, 243 S. W. 45, wherein it appeared that the plaintiffs had executed a deed in favor of the defendants, which was destroyed by fire while in the latters' possession, the court said: "Just as plaintiffs' right to recover the damages adjudged to them depended upon the sufficiency and validity of the destroyed deed, so defendants' security of title and possession of the premises thereby conveyed, against possible claims thereto by anyone claiming through or under plaintiffs, rests upon the same instrument; and these rights are not fully protected without recordation thereof now impossible. In these circumstances we are of the opinion defendants are entitled to have a deed which they can record. But, as plaintiffs were in no wise responsible for their predicament, they should not have been put to costs or inconvenience thereby; and since defendants did not prepare and tender a new deed in accord with the original, together with the fees necessary for its execution, we do not think they can complain of the refusal of the court to compel its execution by the plaintiffs, and, upon their refusal, by the court commissioner, as was their prayer; but we are of the opinion that they yet should be given the opportunity to secure this relief, if they so desire, by supplementary proceedings, before the action is finally stricken from the docket, since their right to such relief was not established until the validity of the deed was adjudged.” In Towle v. Sherer (1897) 70 Minn. 312, 73 N. W. 180, the court declared that, if title had vested in the plaintiff's intestate by virtue of a conveyance, that was sufficient to support an action to establish a lost deed. And the evidence to establish the former existence of a lost deed was held to be strong and satisfactory. In Bohart v. Chamberlain (1889) 99 Mo. 622, 13 S. W. 85, a case involving a lost deed of trust, after observing that the facts warranted the finding that such a deed had been executed by the defendant and had been lost, the court said: "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." The court, it was held, might direct a re-execution |