OPINION OP THE COURT BY
ROBERTSON, C.J.
(Circuit Judge Ashford dissenting.)
This is an appeal from a decree of a circuit judge dismissing a bill of complaint in a suit in equity in which it was prayed that two certain deeds, namely, a deed dated December 29, 1900, conveying to one William Ahia, trustee, the land described in Grant No. 269, situate at Waialua, Island of Oahu, and purporting to have been, executed by the complainant, the other being dated January 9, 1901, conveying the same land to one John Xeahipaka, trustee, and purporting to have been executed by the said William Ahia, trustee, be decreed to be fraudulent and void, and that the' same be cancelled. There was also a prayer that the defendants be adjudged and decreed to have no interest in said land. • The bill averred that the complainant is the owner of the land in question and entitled to the possession of the same; that she inherited the same; that the said deeds are forgeries, the first never having been executed by the complainant, nor the second "by the said William Ahia; that said deeds were made, and recorded in the registry of conveyances at Honolulu, by someone unknown to the complainant, for the wrongful and fraudulent purpose of defrauding the complainant of her interest in said land; that the defendant,Helemano Land Company, Limited, claims to be the owner of said land through mesne conveyances from the said John Keahipaka, trustee, and one John Emmeluth; and that the said purported deeds above mentioned constitute clouds upon the complainant’s title in and to said land. The defendant, Ahia, in his answer, disclaimed all and any interest in the land in question, and averred that he kneW nothing whatever of the execution of either of said deeds; and never paid or received any consideration in connection therewith. The Helemano • [359]*359Land Company, in its answer, denied the alleged ownership and right to possession oh the complainant; denied the alleged forgeries, and averred that the deeds in question ’Were executed by the complainant and Ahia, respectively, as they purport to have been executed, and with knowledge of their contents; denied the alleged fraudulent intent; and admitted that it claims to be the owner of any interest which the complainant may have had at any time in said land through the said deeds, but averred that it is advised that the true title to said land is in the Waialua Agricultural Company, Limited.
At' the hearing the testimony was conflicting as to whether the deeds in question had been executed by the complainant and Ahia, respectively. ■ The circuit judge, over the complainant’s objection, admitted in evidence a deed of the land from the original owner, Kainalu, through whom the complainant claims title, undated, but acknowledged on the 24th day of October, 1870, to one Mahuka, and mesne conveyances by which, it was claimed the title passed to the Waialua Agricultural Company. The circuit judge did not pass upon the questions of fact involved in the allegations and denials that the deeds in question are forgeries, but dismissed the bill on the ground that the complainant’s ancestor having, in his life time, sold and conveyed the land, the complainant did not inherit title tout, and, hence, has no interest in the subject-matter of the suit.
Counsel for the complainant contends that, it was error to admit in evidence the deed of Kainalu, the ruling being “based upon the idea that the court had jurisdiction to pass on the legal title” to the land. It would seem, however, from the averment of title in the bill, that counsel for the complainant considered it material to show title, and if the averment was material, it having been denied, it was for the complainant to prove it. At the hearing-, testimony, evidently for the purpose of proving title, was introduced tending to show that the complainant was the heir of Kainalu. We think the averment of title was material and that the complainant failed to sustain it: [360]*360This involved the legal title only in so, far as it went to the interest or lack of interest of the complainant in the subject-matter. On that point the deed of Kainalu was admissible. In order to sustain the averment that the deeds constituted clouds upon the complainant’s title, it became necessary for the complainant to show that she had the title.
It is laid down as an elementary proposition that in order to maintain a suit in equity the complainant must have an interest in the subject-matter, and that a bill is demurrable which fails to show such interest. Story, Eq. Pl. (10 ed.) Sec. 508; Selz v. Unna, 6 Wall. 327, 334; U. S. v. San Jacinto Tin Co., 125 U. S. 273, 285. In Howe v. Duppa, 1 V. & B. 511, 35 Eng. Rep. (Reprint) 199, the plaintiff, as executor of one Duppa, filed a bill for the purpose of having set aside an agreement and conveyances in pursuance thereof made by the decedent to his son, the defendant, on the ground of fraud. There was a plea the substance of which was that the decedent, who had owned a contingent interest in certain property, had parted with .such ownership prior to the date of the execution of the conveyances whiph it was sought to have cancelled, The plea was sustained, the court saying, “the decisive answer to this bill is, that the fact was mistaken; at the date of those deeds he had no interest whatsoever in the property; having eleven years before by the former deed parted with all his interest; a fact which remaining unimpeached- destroys the whole foundation of this bill which proceeds upon a supposed interest in him in 1791.” In Barr v. Clayton, 29 W. Va. 256, a suit to set aside a tax deed, it appeared that the ancestor, through whom the plaintiffs claimed title, had, in her life time, sold and conveyed the land to one Taggart. A decree dismissing the bill was affirmed. The court said, “It is equally well settled that the plaintiff cannot maintain his suit unless he both avers and establishes by proof where the averment is denied, that he has an interest in the subject-matter of the suit, or right to the thing demanded, and a proper title to institute the suit. These are [361]*361essential to sustain his right to any relief.” The subject-matter of a cause “is the right which one party claims as against the other, and demands the judgment of the court upon.” Jacobson v. Miller, 41 Mich. 90, 93; Reed v. Muscatine, 104 Ia. 183. See also 37 Cyc. 342; Coleman v. Chauncey, 7 Rob. (N. Y.) 578, 579; McAndrews v. Chicago etc. R. Co., 162 Fed. 856, 858; Jackson v. Smith, 120 Ind. 520, 523, In the case at bar the subject-matter is the title to the land, to remove the alleged clouds from which this bill was filed. The undisputed evidence in the record shows that the complainant has no interest in the title.
The circuit judge did not undertake to pass upon the title to the land further than to determine that the complainant had no interest in the subject-matter. The bill was not dismissed on the. ground that the title was in the Waialua Agricultural Company, but because the complainant did not inherit the title from Kainalu as claimed. The admission in evidence of the mesne conveyances to the Waialua Agricultural Company was, therefore, harmless error. Counsel for the complainant correctly contends that the title should be tried at law, but he is mistaken in' assuming that the complainant is unable to proceed at law unless the deeds in question be first cancelled.
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OPINION OP THE COURT BY
ROBERTSON, C.J.
(Circuit Judge Ashford dissenting.)
This is an appeal from a decree of a circuit judge dismissing a bill of complaint in a suit in equity in which it was prayed that two certain deeds, namely, a deed dated December 29, 1900, conveying to one William Ahia, trustee, the land described in Grant No. 269, situate at Waialua, Island of Oahu, and purporting to have been, executed by the complainant, the other being dated January 9, 1901, conveying the same land to one John Xeahipaka, trustee, and purporting to have been executed by the said William Ahia, trustee, be decreed to be fraudulent and void, and that the' same be cancelled. There was also a prayer that the defendants be adjudged and decreed to have no interest in said land. • The bill averred that the complainant is the owner of the land in question and entitled to the possession of the same; that she inherited the same; that the said deeds are forgeries, the first never having been executed by the complainant, nor the second "by the said William Ahia; that said deeds were made, and recorded in the registry of conveyances at Honolulu, by someone unknown to the complainant, for the wrongful and fraudulent purpose of defrauding the complainant of her interest in said land; that the defendant,Helemano Land Company, Limited, claims to be the owner of said land through mesne conveyances from the said John Keahipaka, trustee, and one John Emmeluth; and that the said purported deeds above mentioned constitute clouds upon the complainant’s title in and to said land. The defendant, Ahia, in his answer, disclaimed all and any interest in the land in question, and averred that he kneW nothing whatever of the execution of either of said deeds; and never paid or received any consideration in connection therewith. The Helemano • [359]*359Land Company, in its answer, denied the alleged ownership and right to possession oh the complainant; denied the alleged forgeries, and averred that the deeds in question ’Were executed by the complainant and Ahia, respectively, as they purport to have been executed, and with knowledge of their contents; denied the alleged fraudulent intent; and admitted that it claims to be the owner of any interest which the complainant may have had at any time in said land through the said deeds, but averred that it is advised that the true title to said land is in the Waialua Agricultural Company, Limited.
At' the hearing the testimony was conflicting as to whether the deeds in question had been executed by the complainant and Ahia, respectively. ■ The circuit judge, over the complainant’s objection, admitted in evidence a deed of the land from the original owner, Kainalu, through whom the complainant claims title, undated, but acknowledged on the 24th day of October, 1870, to one Mahuka, and mesne conveyances by which, it was claimed the title passed to the Waialua Agricultural Company. The circuit judge did not pass upon the questions of fact involved in the allegations and denials that the deeds in question are forgeries, but dismissed the bill on the ground that the complainant’s ancestor having, in his life time, sold and conveyed the land, the complainant did not inherit title tout, and, hence, has no interest in the subject-matter of the suit.
Counsel for the complainant contends that, it was error to admit in evidence the deed of Kainalu, the ruling being “based upon the idea that the court had jurisdiction to pass on the legal title” to the land. It would seem, however, from the averment of title in the bill, that counsel for the complainant considered it material to show title, and if the averment was material, it having been denied, it was for the complainant to prove it. At the hearing-, testimony, evidently for the purpose of proving title, was introduced tending to show that the complainant was the heir of Kainalu. We think the averment of title was material and that the complainant failed to sustain it: [360]*360This involved the legal title only in so, far as it went to the interest or lack of interest of the complainant in the subject-matter. On that point the deed of Kainalu was admissible. In order to sustain the averment that the deeds constituted clouds upon the complainant’s title, it became necessary for the complainant to show that she had the title.
It is laid down as an elementary proposition that in order to maintain a suit in equity the complainant must have an interest in the subject-matter, and that a bill is demurrable which fails to show such interest. Story, Eq. Pl. (10 ed.) Sec. 508; Selz v. Unna, 6 Wall. 327, 334; U. S. v. San Jacinto Tin Co., 125 U. S. 273, 285. In Howe v. Duppa, 1 V. & B. 511, 35 Eng. Rep. (Reprint) 199, the plaintiff, as executor of one Duppa, filed a bill for the purpose of having set aside an agreement and conveyances in pursuance thereof made by the decedent to his son, the defendant, on the ground of fraud. There was a plea the substance of which was that the decedent, who had owned a contingent interest in certain property, had parted with .such ownership prior to the date of the execution of the conveyances whiph it was sought to have cancelled, The plea was sustained, the court saying, “the decisive answer to this bill is, that the fact was mistaken; at the date of those deeds he had no interest whatsoever in the property; having eleven years before by the former deed parted with all his interest; a fact which remaining unimpeached- destroys the whole foundation of this bill which proceeds upon a supposed interest in him in 1791.” In Barr v. Clayton, 29 W. Va. 256, a suit to set aside a tax deed, it appeared that the ancestor, through whom the plaintiffs claimed title, had, in her life time, sold and conveyed the land to one Taggart. A decree dismissing the bill was affirmed. The court said, “It is equally well settled that the plaintiff cannot maintain his suit unless he both avers and establishes by proof where the averment is denied, that he has an interest in the subject-matter of the suit, or right to the thing demanded, and a proper title to institute the suit. These are [361]*361essential to sustain his right to any relief.” The subject-matter of a cause “is the right which one party claims as against the other, and demands the judgment of the court upon.” Jacobson v. Miller, 41 Mich. 90, 93; Reed v. Muscatine, 104 Ia. 183. See also 37 Cyc. 342; Coleman v. Chauncey, 7 Rob. (N. Y.) 578, 579; McAndrews v. Chicago etc. R. Co., 162 Fed. 856, 858; Jackson v. Smith, 120 Ind. 520, 523, In the case at bar the subject-matter is the title to the land, to remove the alleged clouds from which this bill was filed. The undisputed evidence in the record shows that the complainant has no interest in the title.
The circuit judge did not undertake to pass upon the title to the land further than to determine that the complainant had no interest in the subject-matter. The bill was not dismissed on the. ground that the title was in the Waialua Agricultural Company, but because the complainant did not inherit the title from Kainalu as claimed. The admission in evidence of the mesne conveyances to the Waialua Agricultural Company was, therefore, harmless error. Counsel for the complainant correctly contends that the title should be tried at law, but he is mistaken in' assuming that the complainant is unable to proceed at law unless the deeds in question be first cancelled. The complainant being out of possession is in position to, at any time, bring an action of ejectment and therein litigate the title to the land, including the question of the alleged forgery. A forged deed is void and passes no title. Reck v. Clapp, 98 Pa. St. 581, 585; Sapp v. Cline (Ga.) 62 S. E. 529, 532; Haight v. Vallet, 89 Cal. 245; Meley v. Collins, 41 Cal. 663. The fact of forgery may be shown at law, in ejectment, as well as in equity, in a suit for cancellation. Patton v. Fox, 169 Mo. 97, 105; Martin v. Harvey, 89 Neb. 173; Moore v. Munn, 69 Ill. 591, 595. See also McCandless v. Honolulu Plant. Co., 19 Haw. 239; Ah Hoy v. Raymond, 19 Haw. 568, 573. The dictum expressed by Mr. Justice Hartwell in Manuel v. Pelani, 6 Haw. 97, that at law evidence tending to defeat a sealed instrument [362]*362is'not admissible, has not been followed. We have been referred to no' case, and have' found none, where the facts were anything like those- in the case -at- bar where cancellation has been decreed. Kuamu v. Kaeleu, 4 Haw. 136, and Bunce v. Gallagher, 4 Fed. Cas. No. 2133, cited'by--the complainant, are not in point. In each of-those cases the complainant owned the title alleged to be clouded by the fraudulent deed. In Kapiolani v. Mahelona, 9 Haw. 676, the plaintiff was in-possession, and her interest in the subject-matter was not disputed.. - - ' .
Lorrin Andrews for complainant.
D. L. Withington (,O asile & Withinglon on the brief) for the Helemano Land Co., Ltd.
It has been suggested that as the purported deed of the complainant contains a covenant of warranty she would be entitled, if it be a 'forged deed, to have it cancelled even though she has no title in the land. But this was not the theory upon which the case was instituted, nor was it so tried in the -court below or presented -in this court. There are no averments in the bill that any-injury is threatened in that regard. . It is contended by counsel for the Helemano -Land Company, that the covenant of warranty was broken as soon as it was made as neither of the parties to the deed was in possession of the land, it being in the adverse possession of a third party; and that the statute of limitations has- run against an action for damages for breach of the-warranty. We believe we would not be justified, upon the record as it stands, in passing upon this aspect of the case. We'are of the opinion, however, that as the question of the alleged forgery of the two deeds mentioned in the bill has not been determined, and as the question just referred to is to remain open, the dismissal of the bill should be without prejudice.
The decree appealed from is reversed and the cause is remanded to the circuit judge with direction to enter a decree dismissing the bill without prejudice.