BKICKELL, C. J.
The result of the decision in Lehman, Durr & Co. v. Collins, at present term, ante, 127, is, that the appellants, by the decree of the court of chancery, letting them in to redeem the premises in controversy, acquired the title and estate of William T. Shook, which he had by mortgage conveyed to the Mobile Life Insurance Company. The conveyance of the premises to his daughters was executed prior to the mortgage, which was a security for a debt contemporaneously created; and the fact is, that the mortgage was executed with, the knowledge and with the consent of the daughters, verbally expressed, intending that it should have precedence of the conveyance to them. We do not deem it necessary to examine closely the evidence, and determine whether the conveyance to-the daughters is free from fraud, founded on a valuable consideration, and capable of being enforced against the creditors, of the grantor. Conceding its validity, the failure to- record it until more than three months after its execution, .and until the mortgage to the Life Insurance Company had been recorded,, renders it void and inoperative as against that mortgage. — Saffold v. Wade, 51 Ala. 214.
The only right or equity the daughters Could have asserted,, was the redemption of the premises from the mortgage. The-sale under the power in the mortgage was the equivalent of a decree of strict foreclosure; it cut off and barred the equity of redemption, uniting in the purchaser the legal estate vested in the mortgagee, and the equity of redemption residing in the mortgagor, and in the daughters as his alienees.— Childress v. Monette, 54 Ala. 317. All that remained to the mortgagor was-the right or privilege of redemption conferred by the statute;, .a right to re-purchase the lands, and to be restored to the estate [492]*492he had in them at the execution of the mortgage, and at the time of the sale under the power. The same right or privilege the statute reserved to the daughters, because of the conveyance to them by their father, the mortgagor. — Code of 1876, § 2886. The right or privilege is strietly statutory; in the absence of the statute, it would have no existence. If it is not claimed and exercised in the mode, within the time, and upon the terms and conditions prescribed by the statute, it is waived and lost.- — Spoor v Phillips, 27 Ala. 193; Grigg v. Banks, 59 Ala. 311.
The purchaser at the sale under the mortgage succeeded to all the estate of the mortgagee, and to all liis rights and equities, as well as to the equity of redemption the mortgagor or his alienee could have asserted. He was in a large sense the assignee of the mortgagee, substituted to his place, acquiring his rights. The appellants, by the redemption, by operation of law, succeeded to the place of the purchaser from whom they redeemed, and are entitled to stand upon and maintain all the rights he could have asserted. — Keeling v. Heard, 3 Head (Tenn.), 592. They are in possession, and can successfully defend the action of ejectment the daughters have commenced against their tenants. The mortgage, the source of their title, having been recorded before the deed to the daughters, and three months having elapsed after the execution of the deed before its registration, the statute renders it void as against the mortgage. — "Code of 1876, § 2166.
A court of equity is reluctant to interpose by injunction •against an ejectment at law, founded on a legal title the plaintiff is fairly proceeding to establish. An equitable case, a case •of purely equitable cognizance, must be made to appear, before the court will interpose to restrain the proceedings in the action. Kerr on Injunctions, 26. If the action of ejectment was not pending,- the equity of the appellants would be undoubted. 'The deed to the daughters, though void as against their title, is prior in date, apparently the older and better conveyance, and is of record. A purchaser from the appellants, tracing the title, would find it, and its invalidity not appearing on its face, resting upon extrinsic facts, it is evidént a sale could not probably be effected for the fair value of the premises. Whenever a deed or other instrument exists, not void upon its face, which may be vexatiously or injuriously used against a party having the rightful possession of real estate, throwing a cloud or suspicion over his title or interest, and he has not at law a plain and adequate remedy for relief against it, the constant practice of a court of equity is to intervene, and' remove the cloud -or suspicion — when the suspicion is reasonable — by directing that the instrument be delivered up and cancelled, or by making the de[493]*493cree in reference to it, which, under the particular circumstances of the case, justice • and the rights of the parties may require. 1 Story’s Eq. §§ 692-711. No general rule can be laid down which will cover all the cases in which the court will interpose at the instance of a party in possession having a clear title, to remove from it all clouds, and for the prevention of future litigation. The jurisdiction does not rest upon arbitrary rules; much depends upon the facts of the particular case, and in the exercise of the jurisdiction, the court is clothed with a large discretion. — Fonda v. Sage, 48 N. Y. 173. The whole doctrinéis referable to the general jurisdiction which the court exercises in favor of a party quia timet. It is intended for the prevention of litigation, which the outstanding instrument, apparently valid, may generate in the future, .to protect the true title from all injury probably resulting from it, and to render the possession quiet and secure. It is only at the instance of a party in-possession the court intervenes, for the reason that if he have not possession, the remedy at law for the recovery of it is generally plain and adequate. When in possession, the law furnishes him no legal remedy for the trial of the strength of his own title and the contestation- of the validity of the outstanding instrument. This is, however, only one of the reasons for which the court intervenes. There are other and broader reasons — the prevention of litigation, the protection of the true title and the possession, and because it is-the real interest of both parties, and promotive of right and justice, “that the precise-state of the title be known, if all are acting bona fide; and if not, that a merely colorable and pretended claim is a fraud upon the real owner, and as such should be extinguished.” — 1 Story’s Eq.
The pendency of the action of ejectment ought not to arrest the jurisdiction of the court. If that action is prosecuted diligently, there can be, it is true, but one result, a verdict and judgment for the appellants. Its continued prosecution rests-wholly in the discretion of the plaintiffs- — they can at any time abandon or dismiss it, and renew it at any time, until the statute of limitations has perfected a bar. If they elect to continue its prosecution, the verdict and judgment in favor of the appellants would not bar a second action. Two judgments in favor of the defendant in an action of ejectment, putting in issue the same title, not one, operate a bar to a subsequent action. — Code of 1876, § 2969. The pendency of the action is-rather an additional reason for the interference of a court of equity, than an objection or an obstruction to its jurisdiction. Woods v. Monroe, 17 Mich. 238. There is the greater necessity for quieting the title and the possession, and removing the cloud which affects its value and security. If the court should [494]
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BKICKELL, C. J.
The result of the decision in Lehman, Durr & Co. v. Collins, at present term, ante, 127, is, that the appellants, by the decree of the court of chancery, letting them in to redeem the premises in controversy, acquired the title and estate of William T. Shook, which he had by mortgage conveyed to the Mobile Life Insurance Company. The conveyance of the premises to his daughters was executed prior to the mortgage, which was a security for a debt contemporaneously created; and the fact is, that the mortgage was executed with, the knowledge and with the consent of the daughters, verbally expressed, intending that it should have precedence of the conveyance to them. We do not deem it necessary to examine closely the evidence, and determine whether the conveyance to-the daughters is free from fraud, founded on a valuable consideration, and capable of being enforced against the creditors, of the grantor. Conceding its validity, the failure to- record it until more than three months after its execution, .and until the mortgage to the Life Insurance Company had been recorded,, renders it void and inoperative as against that mortgage. — Saffold v. Wade, 51 Ala. 214.
The only right or equity the daughters Could have asserted,, was the redemption of the premises from the mortgage. The-sale under the power in the mortgage was the equivalent of a decree of strict foreclosure; it cut off and barred the equity of redemption, uniting in the purchaser the legal estate vested in the mortgagee, and the equity of redemption residing in the mortgagor, and in the daughters as his alienees.— Childress v. Monette, 54 Ala. 317. All that remained to the mortgagor was-the right or privilege of redemption conferred by the statute;, .a right to re-purchase the lands, and to be restored to the estate [492]*492he had in them at the execution of the mortgage, and at the time of the sale under the power. The same right or privilege the statute reserved to the daughters, because of the conveyance to them by their father, the mortgagor. — Code of 1876, § 2886. The right or privilege is strietly statutory; in the absence of the statute, it would have no existence. If it is not claimed and exercised in the mode, within the time, and upon the terms and conditions prescribed by the statute, it is waived and lost.- — Spoor v Phillips, 27 Ala. 193; Grigg v. Banks, 59 Ala. 311.
The purchaser at the sale under the mortgage succeeded to all the estate of the mortgagee, and to all liis rights and equities, as well as to the equity of redemption the mortgagor or his alienee could have asserted. He was in a large sense the assignee of the mortgagee, substituted to his place, acquiring his rights. The appellants, by the redemption, by operation of law, succeeded to the place of the purchaser from whom they redeemed, and are entitled to stand upon and maintain all the rights he could have asserted. — Keeling v. Heard, 3 Head (Tenn.), 592. They are in possession, and can successfully defend the action of ejectment the daughters have commenced against their tenants. The mortgage, the source of their title, having been recorded before the deed to the daughters, and three months having elapsed after the execution of the deed before its registration, the statute renders it void as against the mortgage. — "Code of 1876, § 2166.
A court of equity is reluctant to interpose by injunction •against an ejectment at law, founded on a legal title the plaintiff is fairly proceeding to establish. An equitable case, a case •of purely equitable cognizance, must be made to appear, before the court will interpose to restrain the proceedings in the action. Kerr on Injunctions, 26. If the action of ejectment was not pending,- the equity of the appellants would be undoubted. 'The deed to the daughters, though void as against their title, is prior in date, apparently the older and better conveyance, and is of record. A purchaser from the appellants, tracing the title, would find it, and its invalidity not appearing on its face, resting upon extrinsic facts, it is evidént a sale could not probably be effected for the fair value of the premises. Whenever a deed or other instrument exists, not void upon its face, which may be vexatiously or injuriously used against a party having the rightful possession of real estate, throwing a cloud or suspicion over his title or interest, and he has not at law a plain and adequate remedy for relief against it, the constant practice of a court of equity is to intervene, and' remove the cloud -or suspicion — when the suspicion is reasonable — by directing that the instrument be delivered up and cancelled, or by making the de[493]*493cree in reference to it, which, under the particular circumstances of the case, justice • and the rights of the parties may require. 1 Story’s Eq. §§ 692-711. No general rule can be laid down which will cover all the cases in which the court will interpose at the instance of a party in possession having a clear title, to remove from it all clouds, and for the prevention of future litigation. The jurisdiction does not rest upon arbitrary rules; much depends upon the facts of the particular case, and in the exercise of the jurisdiction, the court is clothed with a large discretion. — Fonda v. Sage, 48 N. Y. 173. The whole doctrinéis referable to the general jurisdiction which the court exercises in favor of a party quia timet. It is intended for the prevention of litigation, which the outstanding instrument, apparently valid, may generate in the future, .to protect the true title from all injury probably resulting from it, and to render the possession quiet and secure. It is only at the instance of a party in-possession the court intervenes, for the reason that if he have not possession, the remedy at law for the recovery of it is generally plain and adequate. When in possession, the law furnishes him no legal remedy for the trial of the strength of his own title and the contestation- of the validity of the outstanding instrument. This is, however, only one of the reasons for which the court intervenes. There are other and broader reasons — the prevention of litigation, the protection of the true title and the possession, and because it is-the real interest of both parties, and promotive of right and justice, “that the precise-state of the title be known, if all are acting bona fide; and if not, that a merely colorable and pretended claim is a fraud upon the real owner, and as such should be extinguished.” — 1 Story’s Eq.
The pendency of the action of ejectment ought not to arrest the jurisdiction of the court. If that action is prosecuted diligently, there can be, it is true, but one result, a verdict and judgment for the appellants. Its continued prosecution rests-wholly in the discretion of the plaintiffs- — they can at any time abandon or dismiss it, and renew it at any time, until the statute of limitations has perfected a bar. If they elect to continue its prosecution, the verdict and judgment in favor of the appellants would not bar a second action. Two judgments in favor of the defendant in an action of ejectment, putting in issue the same title, not one, operate a bar to a subsequent action. — Code of 1876, § 2969. The pendency of the action is-rather an additional reason for the interference of a court of equity, than an objection or an obstruction to its jurisdiction. Woods v. Monroe, 17 Mich. 238. There is the greater necessity for quieting the title and the possession, and removing the cloud which affects its value and security. If the court should [494]*494now refuse intervention, the action of ejectment could be immediately dismissed, the obstruction to the intervention of the court removed, and there would then be an unquestioned equity on the part of the appellants to invoice the jurisdiction of the court, and an unquestioned duty on the part of the court to intervene. The intervention and jurisdiction of the court can not be subjected to the mere caprice or volition of parties holding instruments of no real value to themselves, but which can be of immediate injury, and may at any time be made the cause of vexation to the rightful' and lawful possessors and owners of land. It is against conscience that such instruments should be retained, and it is hardly possible that they are retained for any other than some sinister purpose. Reluctant as may be a court of equity to stay proceedings in ejectment to try the legal title to lands, the special circumstances of particular cases, the inability of courts of law to meet all their exigencies, sometimes necessitate the intervention of the court. When there is a clear ground for the intervention of the court, of which the court of law has not jurisdiction, the jurisdiction of the two courts is not concurrent, and where relief is necessary for the purpose of removing a cloud upon an undoubted legal title, a case of purely equitable cognizance is presented. High on In. § 327.
The decree- of the chancellor must be reversed, and the cause remanded to the Court'of Chancery, with instructions to render a decree enjoining the action of ejectment, and declaring the conveyance of the premises, executed by William T. Shook to his daughters, Laura E. and Iiester E., bearing date June 10th, 1873, of record in the court of probate of Etowah county, void and inoperative as against the title of the appellants.