hundred and ninety-eight, may, as to lands not exceeding in amount one hundred and sixty acres, in defense of any action for the possession of said lands show that he is and has been in the peaceable possession thereof, and that he has while in such possession made valuable and lasting improvements thereon, and that he has not enjoyed the possession thereof a sufficient length of time to compensate him for such improvements. Thereupon the court or jury trying such cause shall determine the fair and reasonable value of such improvements and the fair and reasonable rental value of said lands for the time the same shall have been occupied by such person, and if the improvements exceed in value the amount of rents with which such person should be charged the court, in its judgment, shall specify such time as will, in the opinion of the court, compensate such person for the balance due, and award him possession for such time unless the amount be paid by claimant within such reasonable time as the court shall specify. If the finding be that the amount of rents exceed the value of the improvements, judgment shall be rendered against the defendant for such sum, for which execution may issue.20 20 Act June 28, 1898; 30 Stat. L. 495. 3. THE PROCEDURE BY WHICH TITLE TO REAL ESTATE IS QUIETED. SECTION 1176. The statutory action to quiet title. 1177. The equitable action to quiet title. 1178. The nature of the action. 1179. Sufficiency of the allegations of the petition to quiet title. 1180. Answers and cross-petitions in the action. 1181. A person having no interest in real estate cannot main tain the action to quiet title thereto. 1182. Awarding costs when disclaimer is filed by a defendant. 1183. The nature and effect of a decree quieting title. 1184. Injunction against defendants may be demanded, when. 1185. The ordinary form for the petition to quiet title. 1186. Form for the petition to quiet title to land devised to descend to brothers, etc., in case of death without heirs. SECTION 1187. Form for the petition in an years. mons. 1192. Form for the summons. 1197. The decree of the court quiet- Sec. 1176. The statutory action to quiet title. It is provided by statute that an action may be brought by any person in possession, by himself or tenant, of real estate, against any person who claims an estate or any interest therein adverse to him, for the purpose of determining such adverse estate or interest, and said action may be joined with an action to recover possession of such real property by any person not in possession.1 This statute has done away with much of the law concerning the procedure in the action to quiet title. Heretofore the 1 Act of January 25, 1911; S. L. 1910-1911, page 26. action to quiet title could only be brought by one in possession, unless the land should be wild and unoccupied by anyone. However, in some jurisdictions the courts have held that anyone claiming an equitable estate in the real estate could have his action to quiet the title though out of possession of the same.2 Sec. 1177. The equitable action to quiet title. Before the enactment of this statute providing for the present action to quiet title, the action was begun by a bill in chancery, and was entertained exclusively within the jurisdiction of the chancery courts. An action quia timet may be brought in equity and this has always been the rule of law in the code States.* 3 The Supreme Court of the State of Kansas has, in a well considered case, very plainly set forth the principles involved in the equitable action to quiet title. It has said that in an action to remove a cloud on the title, when the petition set out all the facts similar to a bill in equity and independent of the statutory regulations, it is not necessary to allege that the plaintiff was in possession of the premises.5 The statute in regard to the quieting of titles did not take away any of the previously existing equitable remedies. The case under consideration comes with a well understood rule of equity jurisprudence, and is independent of statutory regulations. The relief in such cases is of a kind given under the old practice only in courts of equity, and in cases outside the limits of the statute; and the facts must be fully stated, substantially as in a bill in equity under the former chancery practice." 2 Taylor v. Springs, 11 Okla. 710, 69 Pac. 64; Womble v. Pike, 17 Okla. 122, 87 Pac. 427. 32 Yaple's Code Prac. and Prec., Sec. 773. Duhme v. Mahner, 18 C. C. 707; Darlington v. Compton, 20 C. C. 242. 5 Grove v. Jennings, 46 Kan. 366, 26 Pac. 738. 6 Grove v. Jennings, 46 Kan. 366, 26 Pac. 739; Douglass v. Nuzum, 16 Kan. 515; Pettit v. Shepherd, 5 Paige, 501; Field v. Holbrook, 6 Duer, 597; Jones v. Smith, 22 Mich. 360. Under this rule of equity practice a person who holds the legal title to land, though not in possession, may, independently of the statute, maintain a suit in equity to remove a cloud on his title, and in such suit the court may decree the reformation or cancellation of records, and the execution of deeds or releases." Under the laws in force in the Indian Territory at the time of the erection of the State, where one holding an equitable title only to land comes into a court of equity, to impeach or cancel or compel a conveyance of the legal title, or the cancellation of an inferior equitable title, the jurisdiction of the court in no wise depends upon the questions of possession.8 Sec. 1178. The nature of the action. The purpose of the action was to suppress litigation and prevent multiplicity of suits. The action should be granted in every case in which a claim or lien on real estate seems to be asserted or exists to the end that the land should be freed from every lurking and unsubstantiated claim, for even the suspicion of such claim, no matter how ill-founded, affects the value when on sale. The essential elements of the old action quia timet-ne injuste-was the apprehension of some injury at the hands of the defendant, some loss to be occasioned to the plaintiff by the defendant's act or omission in case of delay. The bill must be to suppress litigation. 7 Hager v. Shindler, 29 Cal. 47; Thompson v. Lynch, 29 Cal. 189; Kennedy v. Northrup, 15 Ill. 148; Redmond v. Packenham, 66 Ill. 434; Booth v. Wiley, 102 Ill. 84; Tabor v. Cook, 15 Mich. 322; Ormsby v. Barr, 22 Mich. 80; King v. Carpenter, 37 Mich. 363; Low V. Staples, 2 Nev. 209; Almony v. Hicks, 3 Head, 39; Pier v. City, 38 Wis. 470; Bunce v. Gallagher, 5 Blatchf. 481; Bowdish v. Metzger, 71 Kan. 753, 81 Pac. 484. In the action to quiet title under the statute there must be claim of present right by the defendants capable of being enforced by action or by their own act, and which, if enforced, would interfere with the plaintiff's enjoyment of the property." The adverse claim need not relate to or affect the right of present possession. A party in possession claiming a fee may bring the action against a party who asserts title in remainder, who insists that the party in possession has only a life estate.* It would seem that the statute is intended to embrace every description of claim whereby the plaintiff might be deprived of the property or its title clouded, or its value depreciated. The plaintiff has the right to be quieted in his title whenever any claim is made to real estate of which he is in possession, the effect of which claim might be litigation or loss by him of the property.10 The action may be maintained to require the setting up and the cancellation of instruments which are voidable, or instruments which are in reality void and yet apparently valid." But the statutory action to quiet title can never be used for the sole purpose of getting information from the courts as to plaintiff's rights, for it has always been the policy of courts not to allow the bringing of an action when no relief is sought beyond the advice of the courts as to the rights of parties.12 It is sufficient that the claim of defendant casts a cloud upon the title. No matter how slight it is, the court will enter a decree of removal.13 In an action to quiet title, if plaintiff shows peaceable possession under a conveyance, even though defective, and the 9 Collins v. Collins, 19 O. S. 471. * Rhea v. Dick, 34 0. S. 420. 10 Rhea v. Dick, 34 O. S. 424; Bogert v. City, 27 N. J. Eq. 568; Douglass v. Scott, 5 Ohio, 195; Joyce v. McAvoy, 31 Cal. 274. 11 Duhme v. Mahner, 18 C. C. 708. Wabash, etc., v. Toledo, etc., 7 N. P. 198. 12 Collins v. Collins, 19 O. S. 468; Cory v. Fleming, 29 O. S. 147; Railway v. Commissioners, 30 O. S. 120; Rothgeb v. Monk, 35 O. S. 503. 13 Lowemiller v. Fouser, 52 O. S. |