CHAPTER 257

SUIT TO QUIET TITLE

SCOPE

This chapter discusses the equitable remedy of quieting title to property through a suit to "remove a cloud," meaning an adverse claim of right or interest in the property. The chapter describes the action to quiet title, details the elements that must be pleaded and proved, and distinguishes the remedy from Dthers that may have the same effect. Included is a discussion of the application of the Declaratory Judgments Act as an appropriate procedural vehicle with which to assert the action. The chapter also coyers the tort cause of action known as slander of title, an action often included with a quiet title suit when the cloud on the plaintiffs title has frustrated a specific sale and caused the plaintiff to suffer a monetary loss. A step-by-step guide to planning and preparing the case is included for petitioners, as are forms for a petition to quiet title, for adding a slander of title action, and for use in drafting and recording the judgment quieting title. A guide and forms for use by the defense are also illustrated, setting out typical defenses for both causes of action. The equitable remedies available to rescind or reform an instrument executed by the petitioner, remedies that may have the effect of quieting title by nullifying or correcting a title document, are addressed in Ch. 52, Rescission, and Ch. 53, Reformation. Actions to vest title and the right of possession in the plaintiff, which effectively quiet title, are covered in Ch. 251, Trespass to Try Title, and Ch. 250, Adverse Possession. The substantive law governing the validity of claims to real property interests often targeted as invalid clouds on a property title is discussed in Ch. 250, Adverse Possession, Ch. 254, Deeds and Conveyances, Ch. 255, Real Property Security Interests, Ch. 271, Mechanic's and Materialmen's Liens, Ch. 280, Adjoining Landowners, Ch. 281, Easements, and Ch. 283, Oil and Gas Leases.(Matlhew Bender & Co. Inc.) (Rel.60-111OO Pub.719)

257-1

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another party asserting a conflicting possessory right [see Ch. 251, Trespass to Try Title]. In essence, the plaintiff must claim an ownership interest in real property and can prevail only by establishing that interest as a valid and superior one. An action in trespass to try title is purely statutory [Tex. Prop. Code 22.001-22.004; see Martin v. Amerman, 133 S.W.3d 262, 264-265 (Tex. 2004) (noting that statutory trespass-to-try-title action replaced common-law action in ejectment)] and is governed by special pleading and proof requirements established by the Texas Rules of Civil Procedure [Tex. R. Civ. P. 783-809; see generally Ch. 251, Trespass to Try Title]. Success in a trespass-to-try-title action depends on the strength of the petitioner's title, not the weakness of the adversary's claim [Martin v. Amerman, 133 S.W.3d 262, 265 (Tex. 2004); Land v. Turner, 377 S.W.2d 181, 183 (Tex. 1964); Hejl v. Wirth, 161 Tex. 609, 343 S.W.2d 226, 226 (1961)]. When both the plaintiff and the defendant claim title and possession of property, it appears that the plaintiff may elect to bring a suit to quiet title or remove a cloud created by the deed or other evidence of the defendant's claim [see, e.g. Dickson v. Dickson, 993 S.W.2d 735, 736 (Tex. App.-Houston [14th Dist.] 1999, no pet.) (devisee under will attempted suit to quiet title to defeat defendant's claim of parol gift and adverse possession)]. The major drawback in bringing suit to quiet title is that the resulting judgment would not directly affirm the plaintiff's claim to title. Rather, it would only eliminate the defendant's claim, leaving the validity of the plaintiff's title dependent on the usual examination of remaining public records. Moreover, no money damages are recoverable in a suit to quiet title [Ellis v. Waldrop, 656 S.W.2d 902, 904-905 (Tex. 1983) (damages depend on successful prosecution of action for slander of title); see 257.06[2]]. On the other hand, a petitioner who establishes superior title in a trespass to try title action may recover for loss of rents and profits and other damages to compensate for any harm to the property caused by the defendant's presence [Tex. R. Civ. P. 783(f); see Ch. 251, Trespass to Try Title]. Often, the claim of one of the parties is based on title by limitation, also known as adverse possession [see Ch. 250, Adverse Possession]. In a trespass-to-try-title action in which a claim or defense of adverse possession is in issue, recovery of attorney's fees by the prevailing party is authorized when certain notice procedures have been followed [see Tex. Civ. Prac. & Rem. Code 16.034]. If this attorney's fee statute is inapplicable because there is no claim or defense of adverse possession [see Smith v. Brooks, 825 S.W.2d 208, 210--211 (Tex. App.-Texarkana 1992, no writ) (mere plea of "not guilty" does not raise defense of adverse possession, so fee statute inapplicable)], there must be some other statutory basis for an award of attorney's fees. The statutes governing trespassto-try-title actions do not themselves provide any general authorization for attorney's fees [see generally Ch. 251, Trespass to Try Title]. Therefore, when an action must be brought as a trespass-to-try-title action [see Tex. Prop. Code 22.001(a) (trespass-to-try-title action is "the method of determining title" to real(ReI. 87-1112007

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SynopsisPART I. LEGAL BACKGROUNDA. Action to Remove Cloud and Quiet Title 257.01

257.02

257.03

257.04

257.05

257.06

Nature and Purpose of Action to Remove Cloud and Quiet Title [1] Cause of Action Explained [2] Typical Targets of Suit to Quiet Title [3] Other Actions to Clear Title Distinguished [a] Importance of Making Distinction [~] Trespass to Try Title [c) Rescission [d) Reformation [e) Slander of Title [4] Using Declaratory Judgments Act for Action to Quiet Title [a] Interpretation of Declaratory Judgment Act [b) Effect of Availability of Other Remedy on Award of Attorney's Fees Elements of Cause of Action to Quiet Title [1] Generally Stated [2] Specific Elements [a] Petitioner's Interest in Specific Property [b) Existence of Adverse Claim [c) Invalidity or Unenforceability of Adverse Claim Parties [1] Plaintiffs [2] Defendants Jurisdiction and Venue [1] Jurisdiction [a] Power to Adjudicate Title to Texas Real Estate [b) Subject Matter Jurisdiction [2] Venue Defensive Matters [1] Limitations [2] Other Affirmative Defenses [3] Request for Award of Attorney's Fees for Successful Defense [4] Counterclaim for Affirmative Relief [a] Quieting or Vesting of Title in Defendant [b) Claim for Improvements [5] Disclaimer Relief Available [1] Declaration Removing Cloud and Quieting Title [2] Damages Not Recoverable for Mere Suit to Quiet Title(Re1.60-111OO Pub.719)

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[b] Elements of Cause of Action to Quiet Title [c] Relief Requested [d] Discovery Level [2] Form 257.101 Allegations for Addition of Slander of Title Action [1] Comment [a] Use of Form [b] Elements of Cause of Action for Slander of Title [c] Damages Recoverable [2] Form 257.102-257.109 Reserved

B.

Defendant's Forms

Original Answer in Suit to Quiet Title [1] Comment [a] Use of Form [b] Contents of Answer [i] Special Exceptions and Denials [ii] Affirmative Defenses [iii] Contest of or Request for Attorney's Fees [2] Form 257.111 Defensive Allegations in Suit Including Action for Slander of Title [1] Comment [a] Use of Form [b] Defensive Allegations [2] Form 257.112-257.119 Reserved

257.110

C. Judgment and Related FormsJudgment Quieting Title; Optional Award for Slander of Title [1] Comment [a] Use of Form [b] Contents of Judgment [2] Form 257.121 Clerk's Certificate Attesting to Judgment [1] Comment-Use of Form [2] Form 257.122-257.199 Reserved 257.120

PART IV. RESEARCH GUIDE 257.200 257.201

Texas Constitution Texas Statutes and Rules [1] Statutes(ReJ.6(H 1100 I'I!b.719)

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257-3[3] Attorney's Fees

SYNOPSIS

I 257.07 Correcting Deed Records Post-Judgment II 257.0~257.09 ReservedB. Action for Slander of TitleNature and Purpose of Action Elements of Cause of Action for Slander of Title [1] Petitioner's Interest in Specific Real Property [2] Defendant's Conduct That Disparaged Title [a] Publication or ''Utterance'' [b) Falsity [c) Malice [d) Loss of Specific Sale I 257.12 Defensive Issues [1] Limitations [2] Acting on Advice of Counsel [3] Privileged Conduct I 257.13 Recovery Obtainable [1] Actual Damages [2] Exemplary Damages [3] Attorney's Fees I 257.14-257.49 Reserved

I 257.10 I 257.11

PART ll. PROCEDURAL GUIDEBringing Suit to Remedy Impaired Title Preliminary Steps [2] Preparing the Petition [a] Introductory Provisions [b) Allegations to Quiet Title by Removing Cloud [c) Allegations to Recover Damages for Slander of Title [d) Prayer for Relief 257.51 Preparing Defendant's Answer 257.52 Preparing and Using Judgment to Clear Title [1] Preparing Judgment [2] Recording Judgment to Clear Title 257.53-257.99 Reserved[1]

I 257.50

PART llI. FORMSA. Petitioner's Forms 257.100

[1]

Plaintiff's Petition to Remove Cloud and Quiet Title Comment [a] Use of Form(Rel.OO-111OO Pub.719)

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257-5[2] Case [1] [2] [3] [4] [5]

SYNOPSIS

257.202

257.203 . 257.204

Rules Law Examples of Clouds on Titles Jurisdiction and Venue Interest Necessary for Standing to Sue Necessity to Prove Invalidity of Adverse Claim Additional Elements for Slander of Title Action [a] Malicious Publication of False Claim Disparaging Title [b] Loss of Specific Sale [6] Damages [7] Limitation [8] Attorney's Fees [9] Privilege Defense to Slander of Title Law Reviews and Periodicals Text References

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PART I. LEGAL BACKGROUND A. 257.01

Action to Remove Cloud and Quiet Title

Nature and Purpose of Action to Remove Cloud and Quiet Title

[l]-Cause of Action ExplainedIt is not uncommon for one person to claim some right or interest in a piece of property and another person to dispute that claim by contending it is invalid or unenforceable. These claims take several forms, as illustrated in [2], below, ranging from a claimed ownership interest in all or part of the property to an assertion of a lien or other encumbrance against the property. The disputed claim is said to "cast a shadow" on the title to the property by creating a "cloud" on the title. To settle the dispute and clear the title, the circumstances may leave the title holder with no clear-cut legal remedy other than an action to quiet title or, as it is sometimes called, a suit to remove a cloud from the title [see Dittmar v. Alamo Nat'l Co., 132 Tex. 44, 118 S.W.2d 298, 301-302 (1938)-applying remedy to quiet title to personalty]. To paraphrase an early opinion of the Texas Supreme Court, the action enables the holder of the feeblest equity to remove from his or her way to the title any unlawful hindrance having the appearance of a better right [Thomson v. Locke, 66 Tex. 383, 1 S.W. 112, 115 (1886); see Bell v. Ott, 606 S.W.2d 942, 952 (Civ. App.Waco 1980, ref. n.r.e.)-quoting from Thomson v. Locke]. The cloud on the title may have been created by a deed, contract, judgment, or other instrument, whether recorded or not [Best Investment Company v. Parkhill, 429 S.W.2d 531, 534 (Civ. App.-Corpus Christi 1968, dis. w.o.j.); see Texan Dev. Co. v. Hodges, 237 S.W.2d 436,439 (Civ. App.-Amarillo 1951, no writ)-unrecorded contract was cloud on title]. Yet, the person contesting its validity may not have been a party to the instrument creating it so that the traditional remedies of rescission or reformation are unavailable. Similarly, the cloud may not be an opposing claim for title and possession or the complaining party may not be an ownership claimant, eliminating resort to the statutory action for trespass to try title. In these situations, when other remedies are not available, the action to quiet title can be used to establish that the adverse party's claim is invalid or unenforceable and without impact on the title to the property in question. Successful prosecution of the action will result in a court decree or declaration that the adverse claim is invalid and, thus, clear or "quiet" the title to the property and "remove the cloud" [see Southwest Guar. Trust Co. v. Hardy Rd. 13.4 Joint Venture, 981 S.W.2d 951,957 (Tex. App.-Houston [1st Dist.] 1998, pet. denied)-upholding trial court's judgment (1) declaring title quieted, (2) "removing, annulling, and holding for naught" all clouds on(Matthew Bender " Co Inc.) (Rel.ID-111OO Pub.719)

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257.01[2]

it, and (3) declaring certain lien invalid and unenforceable]. However, the successful prosecution of a suit to quiet title cannot result in the recovery of damages for harm caused by the existence of the cloud on the title [see 257.06[2]]. Recovery of money damages requires the complaining party to add and establish the elements of some legal remedy such as an action for slander of title [see 257.10 et seq.]

[2]-Typical Targets of Suit to Quiet TitleThe purpose of the traditional suit to quiet title is to remove a cloud from the title created by an invalid claim. It follows that the clai~ may take one of several forms and the resolution of its invalidity will depend on one or more areas of substantive law. From reported modern opinions, examples of clouds or claims targeted for removal through suits to quiet title include the follOwing:Real Property Ownership Claims

Aright of first refusal to purchase, allegedly lost by the holder's failure to accept an offer to sell [Ellis v. Waldrop, 656 S.W.2d 902, 903-904 (Tex. 1983)]. A city's claim of a right-of-way easement recorded only in the city's records and referenced in a deed only as a "proposed road" [James J. Hartnett, P.C. v. City of Dallas, 5 S.W.3d 384, 385-386 (Tex. App.-Fort Worth 1999, pet. dism'd)]. A claim of ownership under a parol gift and adverse possession [Dickson v. Dickson, 993 S.W.2d 735, 736 (Tex. App.-Houston [14th Dist.] 1999, no pet.)]. A claim to a mineral interest based on a conveyance from the State of Oklahoma before the final ascertainment of the Texas-Oklahoma border [Jones v. P.A.W.N. Enterprises, 988 S.W.2d 812, 815-817 (Tex. App.-Amarillo 1999, pet. denied)]. A claim of ownership of both surface and mineral rights obtained through a deed of trust foreclosure allegedly conducted in violation of the lienor's agreement not to foreclose on the mineral estate [Wright v. E.P. Operating Ltd. Partnership, 978 S.W.2d 684, 684 (Tex. App.-Eastland 1998, pet. denied)]. A lessee's assertion of continued rights under an oil and gas lease after expiration of the primary term and cessation of production [Exploracion De La Estrella v. Birdwell, 858 S.W.2d 549,551-552 (Tex. App.-EI Paso 1993, no writ); Kidd v. Hoggett, 331 S.W.2d 515, 517 (Civ. App.-San Antonio 1959, ref. n.r.e.)].(Rel.60-lIlOO Pub.719)

Lien Claims(Matthew Bender &. Co.. Inc.)

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A lien claimed to secure unpaid maintenance fees and filed by a homeowner's association allegedly without authority to do so [Gorman v. Countrywood Prop. Owner's Ass'n, 1 S.W.3d 915,917 (Tex. App.-Beaumont 1999, pet. denied)]. A deed of trust lien allegedly created without authority of the property's owner [Southwest Guar. Trust Co. v. Hardy Rd. 13.4 Joint Venture, 981 S.W.2d 951, 952-953 (Tex. App.-Houston [1st Dist.] 1998, pet. denied)-property was held by individual as trustee for unnamed beneficiary]. A judgment lien alleged to be unenforceable against the petitioner's homestead [Tarrant Bank v. Miller, 833 S.W.2d 666, 667 (Tex. App.-Eastland 1992, den.); First National Bank at Lubbock v. John E. Mitchell Company, 727 S.W.2d 360, 361 (Tex. App.Amarillo 1987, ref. n.r.e.)]. A subcontractor's mechanic's lien allegedly filed without compyling with the controlling statutes [Industrial Structure & Fabrication v. Arrowhead Industrial Water, Inc., 888 S.W.2d 840, 841-842 (Tex. App.-Houston [1st Dist.] 1994, no writ)].

Personal Property Claims A claim by the former owner of property to excess funds follOwing a foreclosure sale for non-payment of taxes [Syntax, Inc. v. Hall, 899 S.W.2d 189, 189-190 (Tex. 1995)-claim was upheld to defeat action to quiet title brought by purchaser at trustee's sale]. An oil lessee's claim that gas being produced from an oil well was casinghead gas and not exclUSively within a gas lease on the same land [Amarillo Oil Co. v. Energy-Agri Prods., 794 S.W.2d 20, 21-22 (Tex. 1990)].[3]-Other Actions to Clear Title Distinguished [a]-Importance of Making DistinctionThe equitable cause of action to quiet title or remove a cloud should not be confused with other actions that may have the effect of clearing or establishing title, such as a suit in trespass to try title or an action to rescind or reform a deed or other contract [see [b]-[d], below]. The goal of an action to quiet title is not to establish the superiority of the petitioner's title or declare the invalidity or correct the irregularity of some instrument the petitioner was unlawfully induced to sign; rather, its purpose is to nullify the effect of the disputed claim or encumbrance (the "cloud") that affects or impairs the title to the property when no other means exist to establish that the claim is invalid(Matthew Bender &: Co. Inc.) (Rel.60-111OO Pub.719)

257-9

LEGAL BACKGROUND

257.01[3][b]

or unenforceable [see Sadler v. Duvall, 815 S.W.2d 285, 293 n.2 (Tex. App.-Texarkana 1991, den.); Vanguard Equities, Inc. v. Sellers, 587 S.W.2d 521, 525 (Civ. App.-Corpus Christi 1979, no writ)]. Maintaining the distinctions among remedies is most helpful when the plaintiff must eliminate or correct a document in a chain of title. An action for reformation or for rescission may be joined as a preliminary step toward establishing the plaintiff's interest, invalidating the defendant's claim, or both [see Alkas v. United Sav. Ass'n of Texas, Inc., 672 S.W.2d 852,858 (Tex. App.-Corpus Christi 1984, ref. n.r.e.)]. On the other hand, the title document subject to rescission or reformation may be the only cloud on the title and eliminating or correcting it may provide all the relief the plaintiff needs. Nevertheless, an action to quiet title is often added to a suit for reformation or rescission out of an abundance of caution or through the application of an overbroad or generic definition of "quieting title" [see, e.g., Henderson v. Henderson, 694 S.W.2d 31, 33 (Tex. App.-Corpus Christi 1985, ref. n.r.e.) (action to quiet title joined with action by grantee to reform deed to show grantee's correct name)]. The addition of a prayer to quiet title in a suit having its only purpose as rescinding or reforming a title document may be a misuse of the action to quiet title in the technical sense; moreover, it would appear redundant, although harmless, for the resulting judgment to state the legal effect of the rescission or reformation granted as quieting the title or removing any cloud created by the offending document. Practitioners and judges often use the terms "action to quiet title" or "suit to remove a cloud" in a broad sense, encompassing any action with that result. The broader application may stem from the wording and interpretation of the venue statute by which the venue of an action affecting the title to land, especially a suit to quiet title or to remove an encumbrance, is placed in the county where the property is located [see Tex. Civ. Prac. & Rem. Code 15.011; see also 1 McDonald, Texas Civil Practice 4.22.5-observing that in venue controversies, the action to quiet title receives a construction broader than that historically accorded to the equitable bill of the same name]. Technically, however, actions such as those in trespass to try title or to rescind or reform a document are not the same as the traditional action to quiet title or remove a cloud even though the end result may have that effect as a practical matter. Although it may be appropriate to determine a venue question to lump these other actions into a broad category to mandate litigation in the county where the property is located, the overinclusive characterization of the action may lead to an erroneous determination of other issues, particularly the issues of the pleading and proof required, limitations, damages, and attorney's fees.[b]

Trespass to Try Title

The action known as trespass to try title is statutory, comprising a suit for title and possession of land by a party claiming the legal or equitable title against(ReI. 87-11nOO7

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another party asserting a conflicting possessory right [see Ch. 251, Trespass to Try Title]. In essence, the plaintiff must claim an ownership interest in real property and can prevail only by establishing that interest as a valid and superior one. An action in trespass to try title is purely statutory [Tex. Prop. Code 22.001-22.004; see Martin v. Amerman, 133 S.W.3d 262, 264-265 (Tex. 2004) (noting that statutory trespass-to-try-title action replaced common-law action in ejectment)] and is governed by special pleading and proof requirements established by the Texas Rules of Civil Procedure [Tex. R. Civ. P. 783-809; see generally Ch. 251, Trespass to Try Title]. Success in a trespass-to-try-title action depends on the strength of the petitioner's title, not the weakness of the adversary's claim [Martin v. Amerman, 133 S.W.3d 262, 265 (Tex. 2004); Land v. Turner, 377 S.W.2d 181, 183 (Tex. 1964); Hejl v. Wirth, 161 Tex. 609, 343 S.W.2d 226, 226 (1961)]. When both the plaintiff and the defendant claim title and possession of property, it appears that the plaintiff may elect to bring a suit to quiet title or remove a cloud created by the deed or other evidence of the defendant's claim [see, e.g. Dickson v. Dickson, 993 S.W.2d 735, 736 (Tex. App.-Houston [14th Dist.] 1999, no pet.) (devisee under will attempted suit to quiet title to defeat defendant's claim of parol gift and adverse possession)]. The major drawback in bringing suit to quiet title is that the resulting judgment would not directly affirm the plaintiff's claim to title. Rather, it would only eliminate the defendant's claim, leaving the validity of the plaintiff's title dependent on the usual examination of remaining public records. Moreover, no money damages are recoverable in a suit to quiet title [Ellis v. Waldrop, 656 S.W.2d 902, 904-905 (Tex. 1983) (damages depend on successful prosecution of action for slander of title); see 257.06[2]]. On the other hand, a petitioner who establishes superior title in a trespass to try title action may recover for loss of rents and profits and other damages to compensate for any harm to the property caused by the defendant's presence [Tex. R. Civ. P. 783(f); see Ch. 251, Trespass to Try Title]. Often, the claim of one of the parties is based on title by limitation, also known as adverse possession [see Ch. 250, Adverse Possession]. In a trespass-to-try-title action in which a claim or defense of adverse possession is in issue, recovery of attorney's fees by the prevailing party is authorized when certain notice procedures have been followed [see Tex. Civ. Prac. & Rem. Code 16.034]. If this attorney's fee statute is inapplicable because there is no claim or defense of adverse possession [see Smith v. Brooks, 825 S.W.2d 208, 210--211 (Tex. App.-Texarkana 1992, no writ) (mere plea of "not guilty" does not raise defense of adverse possession, so fee statute inapplicable)], there must be some other statutory basis for an award of attorney's fees. The statutes governing trespassto-try-title actions do not themselves provide any general authorization for attorney's fees [see generally Ch. 251, Trespass to Try Title]. Therefore, when an action must be brought as a trespass-to-try-title action [see Tex. Prop. Code 22.001(a) (trespass-to-try-title action is "the method of determining title" to real(ReI. 87-1112007

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LEGAL BACKGROUND

257.01[3][c]

property)], the parties to the action may not obtain an award of attorney's fees by styling the action as one for a declaratory judgment [see Martin v. Amerman, 133 S.W.3d 262, 265-267 (Tex. 2004)]. Despite the exclusive remedy provisions of the trespass-to-try-title statute, a declaratory judgment is nevertheless available when the "sole issue concerning title to real property. is the determination of the proper boundary line between adjoining properties" [Tex. Civ. Prac. & Rem. Code 37.004(c); see 280.01[2]]. In those circumstances, declaratory relief to resolve a boundary dispute is available, as is. an accompanying award of attorney's fees [see Tex. Civ. Prac. & Rem. Code 37.009]. In any context other than boundary disputes, however, declaratory relief may not be sought as a method to obtain attorney's fees that would not be available under the trespass-to-try-title statutes [see Ch. 251, Trespass to Try Title; Ch. 280, Adjoining Landowners], and some other statutory basis for the fee claim must be present [see generally Ch. 22, Attorney's Fees].[c]

Rescission

The equitable remedy of rescission is the appropriate vehicle for a party who has been induced to execute and deliver a title document through fraud, mistake, incapacity, duress, or the like [see Ch. 52, Rescission, Ch. 254, Deeds and Conveyances]. Although successful prosecution of an action to rescind a document may have the effect of quieting or clearing title to the property (insofar as the title is clouded or affected by that document), it requires compliance with certain rules of law, such as a rule requiring the return of any consideration received, and is subject to the four-year statute of limitation running from the date the complaining party knew or should have known that grounds to rescind existed [Tex. Civ. Prac. & Rem. Code 16.051; see Ch. 72, Limitation of Actions]. On the other hand, there is no limitation period barring an action to quiet title because the cloud's existence is an ongoing wrong [see 257.05[1]].In a rescission action, damages may be awarded, and, at least when fraud is the ground for rescission, attorney's fees may be recovered from the opposing party [Maeberry v. Gayle, 955 S.W.2d 875, 881-882 (Tex. App.--Corpus Christi 1997, no writ); Tex. Bus. & Com. Code 27.01(e)]. Damages are not recoverable in an equitable action to remove a cloud, absent joinder and proof of the claim of slander of title [see 257.06[2]]; attorney's fees may be recoverable if the quiet title action can be brought under the Declaratory Judgments Act [see 257.01[4]]. In some situations, it may be advisable to bring both an action for rescission and to quiet title. The plaintiff may have been unlawfully induced to execute some instrument that conveyed or encumbered all or part of the plaintiff's interest and eliminating that instrument may be a necessary step in establishing the plaintiff's right to invalidate the defendant's adverse claim.(ReI. 87-11no