Alvey, C. J.,
delivered the opinion of the Court.
The decree in this case wa.s entered pro forma, and seems to have been passed in pursuance of an agreement of counsel prescribing special terms for the hearing of the case on appeal, and for the award of costs by the Court. Of course, such an agreement can have no effect here; as this case must he heard and disposed of as all other cases are heard and disposed of by this Court,— that is, according to the Constitution and laws of the State.
The hill does not profess to be filed under the recent provision of the Code for obtaining declaratory decrees, (Code, Art. 16, secs. 26, 27,) whereby the Court is empowered, in its discretion, to make a declaration that the [393]*393party is entitled as claimed by bim, without any further or other relief being asked or given. But the bill was intended to invoke the exercise of the ordinary and long established jurisdiction of the Court for the quieting of titles, and the removing of clouds therefrom, existing to the prejudice of the party complaining.
According to the allegations of the bill, William Livingston, the original complainant in this case, married Mrs. Margaret Hall, a widow, with two infant children by her first husband, and by the plaintiff she had four other children; all of whom survived her, and were of age at the time of her death in 1888. In’ June, 1865, Mrs. Livingston, the wife of the original plaintiff, acquired by purchase a certain lot or piece of ground in fee, in the City of Baltimore, which was deeded to her for her sole and separate use; and in the deed it is recited, that the consideration for said deed to her was paid “out of her own separate money and estate.” In July, 1866, the wife, the grantee in the deed, executed a deed to her husband, the original plaintiff, for the lot of ground so acquired by the wife; this latter deed reciting the consideration as being, natural love and affection, and one dollar. The deed to the husband granted the property to him, his heirs and assign.s.
The bill then charges that this deed to the husband, made by the wife alone, was duly made by virtue of the power of disposition incident to the separate estate of the wife, and that the deed.to the husband “vested in him a clear legal title in fee to said lot of ground. ’ ’ And it is then charged “that doubts have been raised as to the validity of the plaintiff’s title, and the sufficiency of the wife’s deed to him, to pass the title of said lot of ground, and by reason of such doubts the plaintiff is unable to sell or dispose of said lot of ground;” and the plaintiff therefore prays “that his title in fee to said lot of ground may be established and confirmed, and [394]*394that the said, doubts and clouds as to the validity of such title may be removed hy the decree of the Court;” and for general relief.
As will he observed, there is no allegation that the plaintiff was in the possession of the property, or that he had been, or was about to be, disturbed in his right of possession, or that his title had been, or was threatened to be, called in question by any adverse claimant. The only allegation in respect to a cloud upon the title is, that doubts have been raised as to the validity of the title; but by whom, or in what manner, such doubts have been raised, the bill does not allege.
The two children of Mrs. Livingston by her first husband, by their answer, admit the acquisition of the property by their mother, and the making the deed therefor to her husband, as alleged in the bill. But they deny that their mother had any power to-make such deed; and-they aver that they are advised, and therefore insist, that the paper purporting to be the deed made by their mother to her husband is absolutely'null and void, and conveyed no title whatever; and that, by the death of their mother, the title to the property devolved upon' her six children as her heirs-at-law. The other children admit the facts alleged in the bill, but not the legal conclusion alleged as deducible therefrom, and they submit the question of their rights to the Court.
During the pendency of the suit and before decree passed, William Livingston, the original plaintiff, died, leaving a will, whereby, according to the allegations of a petition filed, he devised the property conveyed to him by his wife, to two of his children, namely, George F. Livingston and Margaret E. Dewald, for life, with remainders over. But the will is not produced, nor is there any allegation that it has been admitted to probate; the allegation in regard thereto being simply that it had been deposited with the Register of Wills, and [395]*395therefore could not he produced without the order of the Court. Nor is it alleged or shown who are the parties entitled in remainder. The alleged devisees for life, however, upon their own suggestion, were admitted as plaintiffs and authorized to prosecute the suit.
There was no testimony taken, hut the case was submitted to the Court on the bill, the two deeds as exhibits, the answers and replication thereto. The decree that was. passed dismissed the bill.
It is said that a bill quia timet, or to remove a cloud upon the title of real estate, differs from a hill of peace in that it does not seek so much to put an end to vexatious litigation respecting the property, as to prevent future litigation bj removing existing causes of controversy as to its title. It is brought in view of anticipated wrongs or mischiefs, and the jurisdiction of the Court is invoked because the party fears future injury to his rights and interests. 2 Sto. Eq., sec. 826. But to maintain a suit of this character it is, as a general rule, necessary that the plaintiff shall be in the possession of the property, and, except where the defendants .are numerous, that his title, if a legal one, shall have been established at law, or be founded on undisputed evidence or long continued possession. Holland vs. Challen, 110 U. S., 15, 20, and cases there cited.
In the case of Orton vs. Smith, 18 How., 263, it was laid down as a settled rule, that those only who have a clear, legal and equitable, title to land, connected with q>ossession, have a right to claim the interference of a Court of equity, to give them peace or dissipate a cloud on the title. The principle thus formulated has been sanctioued and followed in several cases in this Court, and is therefore the established law upon the subject. Crook & Wife vs. Brown, et al., 11 Md., 158, 173; Polk vs. Pendleton, 31 Md., 118; McCoy vs. Johnson, et al., 70 Md., 490.
Here, as before stated, it is not shown that the former plaintiff was in possession of the property at the time [396]*396of the institution of the suit, nor is it shown that the present plaintiffs, as devisees, are in possession. Possession, in this class of cases., is not a fact to he presumed, but must be affirmatively alleged and shown. Moreover, on the naked presentation of the case, as we have it on the record before us, even assuming that the wife had the jus disponendi of the property by deed, without the joinder of her husband, the title asserted by the bill is not of that clear, legal and equitable nature, such as will justify the Court in affirming it to have passed to and vested in the husband, in the absence of all evidence to show the circumstances under which the deed was made.
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Alvey, C. J.,
delivered the opinion of the Court.
The decree in this case wa.s entered pro forma, and seems to have been passed in pursuance of an agreement of counsel prescribing special terms for the hearing of the case on appeal, and for the award of costs by the Court. Of course, such an agreement can have no effect here; as this case must he heard and disposed of as all other cases are heard and disposed of by this Court,— that is, according to the Constitution and laws of the State.
The hill does not profess to be filed under the recent provision of the Code for obtaining declaratory decrees, (Code, Art. 16, secs. 26, 27,) whereby the Court is empowered, in its discretion, to make a declaration that the [393]*393party is entitled as claimed by bim, without any further or other relief being asked or given. But the bill was intended to invoke the exercise of the ordinary and long established jurisdiction of the Court for the quieting of titles, and the removing of clouds therefrom, existing to the prejudice of the party complaining.
According to the allegations of the bill, William Livingston, the original complainant in this case, married Mrs. Margaret Hall, a widow, with two infant children by her first husband, and by the plaintiff she had four other children; all of whom survived her, and were of age at the time of her death in 1888. In’ June, 1865, Mrs. Livingston, the wife of the original plaintiff, acquired by purchase a certain lot or piece of ground in fee, in the City of Baltimore, which was deeded to her for her sole and separate use; and in the deed it is recited, that the consideration for said deed to her was paid “out of her own separate money and estate.” In July, 1866, the wife, the grantee in the deed, executed a deed to her husband, the original plaintiff, for the lot of ground so acquired by the wife; this latter deed reciting the consideration as being, natural love and affection, and one dollar. The deed to the husband granted the property to him, his heirs and assign.s.
The bill then charges that this deed to the husband, made by the wife alone, was duly made by virtue of the power of disposition incident to the separate estate of the wife, and that the deed.to the husband “vested in him a clear legal title in fee to said lot of ground. ’ ’ And it is then charged “that doubts have been raised as to the validity of the plaintiff’s title, and the sufficiency of the wife’s deed to him, to pass the title of said lot of ground, and by reason of such doubts the plaintiff is unable to sell or dispose of said lot of ground;” and the plaintiff therefore prays “that his title in fee to said lot of ground may be established and confirmed, and [394]*394that the said, doubts and clouds as to the validity of such title may be removed hy the decree of the Court;” and for general relief.
As will he observed, there is no allegation that the plaintiff was in the possession of the property, or that he had been, or was about to be, disturbed in his right of possession, or that his title had been, or was threatened to be, called in question by any adverse claimant. The only allegation in respect to a cloud upon the title is, that doubts have been raised as to the validity of the title; but by whom, or in what manner, such doubts have been raised, the bill does not allege.
The two children of Mrs. Livingston by her first husband, by their answer, admit the acquisition of the property by their mother, and the making the deed therefor to her husband, as alleged in the bill. But they deny that their mother had any power to-make such deed; and-they aver that they are advised, and therefore insist, that the paper purporting to be the deed made by their mother to her husband is absolutely'null and void, and conveyed no title whatever; and that, by the death of their mother, the title to the property devolved upon' her six children as her heirs-at-law. The other children admit the facts alleged in the bill, but not the legal conclusion alleged as deducible therefrom, and they submit the question of their rights to the Court.
During the pendency of the suit and before decree passed, William Livingston, the original plaintiff, died, leaving a will, whereby, according to the allegations of a petition filed, he devised the property conveyed to him by his wife, to two of his children, namely, George F. Livingston and Margaret E. Dewald, for life, with remainders over. But the will is not produced, nor is there any allegation that it has been admitted to probate; the allegation in regard thereto being simply that it had been deposited with the Register of Wills, and [395]*395therefore could not he produced without the order of the Court. Nor is it alleged or shown who are the parties entitled in remainder. The alleged devisees for life, however, upon their own suggestion, were admitted as plaintiffs and authorized to prosecute the suit.
There was no testimony taken, hut the case was submitted to the Court on the bill, the two deeds as exhibits, the answers and replication thereto. The decree that was. passed dismissed the bill.
It is said that a bill quia timet, or to remove a cloud upon the title of real estate, differs from a hill of peace in that it does not seek so much to put an end to vexatious litigation respecting the property, as to prevent future litigation bj removing existing causes of controversy as to its title. It is brought in view of anticipated wrongs or mischiefs, and the jurisdiction of the Court is invoked because the party fears future injury to his rights and interests. 2 Sto. Eq., sec. 826. But to maintain a suit of this character it is, as a general rule, necessary that the plaintiff shall be in the possession of the property, and, except where the defendants .are numerous, that his title, if a legal one, shall have been established at law, or be founded on undisputed evidence or long continued possession. Holland vs. Challen, 110 U. S., 15, 20, and cases there cited.
In the case of Orton vs. Smith, 18 How., 263, it was laid down as a settled rule, that those only who have a clear, legal and equitable, title to land, connected with q>ossession, have a right to claim the interference of a Court of equity, to give them peace or dissipate a cloud on the title. The principle thus formulated has been sanctioued and followed in several cases in this Court, and is therefore the established law upon the subject. Crook & Wife vs. Brown, et al., 11 Md., 158, 173; Polk vs. Pendleton, 31 Md., 118; McCoy vs. Johnson, et al., 70 Md., 490.
Here, as before stated, it is not shown that the former plaintiff was in possession of the property at the time [396]*396of the institution of the suit, nor is it shown that the present plaintiffs, as devisees, are in possession. Possession, in this class of cases., is not a fact to he presumed, but must be affirmatively alleged and shown. Moreover, on the naked presentation of the case, as we have it on the record before us, even assuming that the wife had the jus disponendi of the property by deed, without the joinder of her husband, the title asserted by the bill is not of that clear, legal and equitable nature, such as will justify the Court in affirming it to have passed to and vested in the husband, in the absence of all evidence to show the circumstances under which the deed was made. The deed to the husband professes to have been made in consideration of natural love and affection, and is therefore a voluntary conveyance from the wife. Such transfers from the wife to the husband are always subjects of rigid scrutiny. A voluntary contract or agreement, that is, without valuable consideration, as between husband and wife, a Court of equity will never enforce; hut where such agreements have been consummated a Court of equity will uphold them and give them effect, provided they have been in all respects just and fair, and not to the prejudice of creditors. Reade vs. Livingston, 3 John. Ch., 481; Hendricks vs. Isaacs, 117 N. Y., 411. But a voluntary deed from a wife to her husband, made when she is surrounded by her infant children, and without provision for them, requires the strictest investigation and scrutiny, before a Court of equity will give it support.
In 2 vol. Story’s Eq. Jur., sec. 1395, in treating of the separate property of married women, and the manner in which such property is guarded and protected by a Court of equity, the author says: “ A married woman having this general power of disposing of her separate property, the question naturally arises, whether she may bestow it by apjoointment or otherwise, upon her husband; or [397]*397whether the legal disability attaches to such a transaction. Upon this subject the doctrine is .now firmly established in equity, that she may bestow her separate property by appointment, or otherwise, upon her husband, as well as upon a stranger. But, at the same time, Courts of equity examine every such transaction between husband and wife, with an anxious watchfulness, and caution, and dread of undue influence; and if they are required to give sanction or effect to it, they will examine the wife in Court, and adopt other precautions to ascertain her unbiased will and wishes;” and many authorities are cited in support of the doctrine thus stated. And it has been held hy Courts of high authority, and upon full and careful consideration, that a gratuitous conveyance by a wife of her property to her husband will be held void, unless it affirmatively appears from the attending circumstances, or otherwise, that it was her voluntary act, free from any undue influence exercised by the husband. Boyd vs. De la Montagnie, 73 N. Y., 502; Darlington’s Appeal, 86 Penn. St., 512. See, also, Lowry vs. Tiernan and Williamson, 2 H. & G., 40.
Now, upon the case as presented, it is very clear, that, though we might be of opinion that it was competent to the wife, under proper circumstances, to make the deed and transfer her separate estate to her husband, yet, upon the defective allegations of the bill, and in the absence of the facts attending the making of the deed to the husband, in view of the well established principles upon this subject, this Court ought not to affirm the validity of the deed, and thus preclude and estop the heirs of the wife from ever making further question of its validity. Orton vs. Smith, 18 How., 265. The Court below, by its decree, dismissed the bill, and this Court for the reasons we have assigned, will affirm that decree, with costs to the appellees; but without prejudice to any [398]*398right or title that the husband may have taken under the deed from his wife.
(Decided 22nd January, 1891.)
Decree affirmed, with costs.