HARALSON, J.
It is familiar “That a court of equity Avill not take jurisdiction Avhen there is a clear, complete and adequate remedy at law. The mere intervention of fraud, no discovery or any special equitable relief being sought, will not authorize a court of chancery to grant relief, or entertain concurrent jurisdiction with the court of law, in cases cognizable at law.” — Youngblood v. Youngblood, 54 Ala. 486; Peeples v. Burns, 77 Ala. 292.
[267]*267It is also true that “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; Lehman v. Shook, 69 Ala. 492.
One of the well recognized grounds of equity jurisdiction is to remove clouds from titles, when the deed or other instrument or proceeding constituting the cloud may be used to injuriously or vexatiously embarrass or affect a plaintiff’s title. “A court of equity will not interpose to prevent or remove a cloud which can only be shown to be prima facie a good title, by leaving the plaintiff’s title entirely out of view. It is always assumed, when the court interferes, that the title of the party complaining is affected by a hostile title, apparently good, but really defective and inequitable by something not appearing on its face. * * Would the owner of the property, in an action of ejectment brought by the adverse party, founded upon the deed, be required to offer evidence to defeat a recovery? If such proof should be necessary, the cloud would exist. If the proof would be unnecessary, no shade would be cast by the presence of the deed.” — Torrent Fire Engine Co. v. City of Mobile, 101 Ala. 563.
Such a bill will not be entertained when the complainant is not in possession, unless he shows some special equity, — some obstacle, or impediment, which would prevent or embarrass the assertion of his rights at law. — Plant, v. Barclay„ 56 Ala. 561. Such bills can only be maintained, as has been held, in the absence of some special ground of equity jurisdiction, by parties who are in possession. They alone need such remedial assistance, for they cannot institute a suit at law to test the rival title. Smith v. Cockrell, 66 Ala. 83.
This, however, as was said by Brickell, C. J., in Lehman v. Shook, 6 Ala. 493, is “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 [268]*268real 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. § 711a.”
Indeed, the ca.se referred to seems to be an adjudication of the one in hand. There, the complainants were in possession of the land, and an ejectment suit had been brought by the defendant and was pending against them. The complainants, who were judgment creditors of W. T. Shook, under a bill filed for the purpose, were, by the decree of the court, let in to redeem the lands in question, sold under the power' in the mortgage by said W. T. Shook, and were put in possession of the lands by the decree on the 30th of January, 1878. On the 30th of June, 3873, said W. T. Shook had executed to the defendants, Laura E. Shook and Hester E. Hodges, the deed the bill was filed to cancel. This deed recited the consideration to be $3000.00 and was filed for record on the 1st of December, 1873. The bill charged that the recital in the deed as to the consideration was false; that the deed was voluntary and made to the defendants by the grantor, who was then insolvent, with intent to hinder, delay and defraud his creditors. On the 14th of February, 1879, the defendants in that suit commenced said action of ejectment to recover from complainants the land mentioned in the deed, when, on the 25th of April, 1879, the complainants filed the bill to cancel said deed as a cloud on their title and to enjoin said ejectment suit. The bill was held to have been well filed, and the decree was reversed and cause remanded, with instructions to the chancery court, to render a decree enjoining the action of ejectment and declaring the conveyance of the premises executed bv Shook to his daughters, bearing date of the 10th of June, 1873, of record in the probate court of the county, void and inoperative as against the title of the appellants, who were judgment creditors [269]*269of said W. T. Shook. Brickell, C. J., in his opinion among other things said; “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 removeAhe cloud or suspicion— when the suspicion is reasonable — by directing that the instrument be delivered up and cancelled or by making the decree in reference to it, which, under the peculiar circumstances of the case, justice and the rights of the parties- may require.— 1 Story’s Eq. § § 697, 711.” See, also, 3 Pom. Eq. Juris. § 1399; 16 A. & E. E. Law, (2nd ed.) p. 368.
It. was also held, for reasons stated in the opinion, that the pendency of the action of ejectment ought not to arrest the jurisdiction of the court.
Somerville, J.,
in his opinion, following that of the Chief Justice, concurred in the conclusion reached by him, stating: “The bill is filed by the complainant, who-claims to hold the legal title to certain lands, and its purpose is to cancel a deed held by two of the defendants on the same lands, on the ground that the- instrument was void for fraud and was a cloud on the title of complainants. If there were no- averment of fraud, it may be seriously questioned whether such a bill would lie, or ought to be maintained. But when an instrument purports on the face of it to be a valid conveyance, so as to constitute a cloud on the title of the property conveyed, and has been fraudulently executed, as seems to be the case here, I am of opinion that equity will and should take jurisdiction, on the ground that the remedy by ejectment at law is not full and adequate-. A court of law is incompetent to sweep away the deed which clouds complainant’s title, so long as it remains in the hands of the defendants uncancelled, and especially where it has been recorded under the registration laws. The sale of real estate may be interminably embarrassed so long as. the property is clouded by such an incumbrance.”
[270]*270What is said on this subject by the Supreme Court of New York, is so apposite in this connection, and consonant with the views of our Court, Ave venture to quote Avhat they say: “There cannot be any doubt as to the jurisdiction of courts of equity over actions to cancel and set aside instruments on the ground of fraud in their procurement. Such actions are in the nature of preventative remedies.
Free access — add to your briefcase to read the full text and ask questions with AI
HARALSON, J.
It is familiar “That a court of equity Avill not take jurisdiction Avhen there is a clear, complete and adequate remedy at law. The mere intervention of fraud, no discovery or any special equitable relief being sought, will not authorize a court of chancery to grant relief, or entertain concurrent jurisdiction with the court of law, in cases cognizable at law.” — Youngblood v. Youngblood, 54 Ala. 486; Peeples v. Burns, 77 Ala. 292.
[267]*267It is also true that “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; Lehman v. Shook, 69 Ala. 492.
One of the well recognized grounds of equity jurisdiction is to remove clouds from titles, when the deed or other instrument or proceeding constituting the cloud may be used to injuriously or vexatiously embarrass or affect a plaintiff’s title. “A court of equity will not interpose to prevent or remove a cloud which can only be shown to be prima facie a good title, by leaving the plaintiff’s title entirely out of view. It is always assumed, when the court interferes, that the title of the party complaining is affected by a hostile title, apparently good, but really defective and inequitable by something not appearing on its face. * * Would the owner of the property, in an action of ejectment brought by the adverse party, founded upon the deed, be required to offer evidence to defeat a recovery? If such proof should be necessary, the cloud would exist. If the proof would be unnecessary, no shade would be cast by the presence of the deed.” — Torrent Fire Engine Co. v. City of Mobile, 101 Ala. 563.
Such a bill will not be entertained when the complainant is not in possession, unless he shows some special equity, — some obstacle, or impediment, which would prevent or embarrass the assertion of his rights at law. — Plant, v. Barclay„ 56 Ala. 561. Such bills can only be maintained, as has been held, in the absence of some special ground of equity jurisdiction, by parties who are in possession. They alone need such remedial assistance, for they cannot institute a suit at law to test the rival title. Smith v. Cockrell, 66 Ala. 83.
This, however, as was said by Brickell, C. J., in Lehman v. Shook, 6 Ala. 493, is “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 [268]*268real 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. § 711a.”
Indeed, the ca.se referred to seems to be an adjudication of the one in hand. There, the complainants were in possession of the land, and an ejectment suit had been brought by the defendant and was pending against them. The complainants, who were judgment creditors of W. T. Shook, under a bill filed for the purpose, were, by the decree of the court, let in to redeem the lands in question, sold under the power' in the mortgage by said W. T. Shook, and were put in possession of the lands by the decree on the 30th of January, 1878. On the 30th of June, 3873, said W. T. Shook had executed to the defendants, Laura E. Shook and Hester E. Hodges, the deed the bill was filed to cancel. This deed recited the consideration to be $3000.00 and was filed for record on the 1st of December, 1873. The bill charged that the recital in the deed as to the consideration was false; that the deed was voluntary and made to the defendants by the grantor, who was then insolvent, with intent to hinder, delay and defraud his creditors. On the 14th of February, 1879, the defendants in that suit commenced said action of ejectment to recover from complainants the land mentioned in the deed, when, on the 25th of April, 1879, the complainants filed the bill to cancel said deed as a cloud on their title and to enjoin said ejectment suit. The bill was held to have been well filed, and the decree was reversed and cause remanded, with instructions to the chancery court, to render a decree enjoining the action of ejectment and declaring the conveyance of the premises executed bv Shook to his daughters, bearing date of the 10th of June, 1873, of record in the probate court of the county, void and inoperative as against the title of the appellants, who were judgment creditors [269]*269of said W. T. Shook. Brickell, C. J., in his opinion among other things said; “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 removeAhe cloud or suspicion— when the suspicion is reasonable — by directing that the instrument be delivered up and cancelled or by making the decree in reference to it, which, under the peculiar circumstances of the case, justice and the rights of the parties- may require.— 1 Story’s Eq. § § 697, 711.” See, also, 3 Pom. Eq. Juris. § 1399; 16 A. & E. E. Law, (2nd ed.) p. 368.
It. was also held, for reasons stated in the opinion, that the pendency of the action of ejectment ought not to arrest the jurisdiction of the court.
Somerville, J.,
in his opinion, following that of the Chief Justice, concurred in the conclusion reached by him, stating: “The bill is filed by the complainant, who-claims to hold the legal title to certain lands, and its purpose is to cancel a deed held by two of the defendants on the same lands, on the ground that the- instrument was void for fraud and was a cloud on the title of complainants. If there were no- averment of fraud, it may be seriously questioned whether such a bill would lie, or ought to be maintained. But when an instrument purports on the face of it to be a valid conveyance, so as to constitute a cloud on the title of the property conveyed, and has been fraudulently executed, as seems to be the case here, I am of opinion that equity will and should take jurisdiction, on the ground that the remedy by ejectment at law is not full and adequate-. A court of law is incompetent to sweep away the deed which clouds complainant’s title, so long as it remains in the hands of the defendants uncancelled, and especially where it has been recorded under the registration laws. The sale of real estate may be interminably embarrassed so long as. the property is clouded by such an incumbrance.”
[270]*270What is said on this subject by the Supreme Court of New York, is so apposite in this connection, and consonant with the views of our Court, Ave venture to quote Avhat they say: “There cannot be any doubt as to the jurisdiction of courts of equity over actions to cancel and set aside instruments on the ground of fraud in their procurement. Such actions are in the nature of preventative remedies. The existence of the instrument may be a well-founded source of anticipated danger by the party whom they do or whom they are designed to affect. The reason for the maintenance of the action for their avoidance is to be found in the reasonable apprehension that the evidence of the fraud may not be always attainable; or that the defense of fraud may not always be available at law. If the fraudulent instrument affects the title to the land, equity entertains the action for its cancellation, in order to remove the cloud thrown upon the plaintiff’s title. (Story’s Eq. Juris. 694, 695, 700; Hamilton v. Cummings, 1 Johns, Ch. 520, 524; Pettit v. Shepherd, 5 Paige, 493.) * * * * * It is but a natural consequence of this equitable jurisdiction to decree the cancellation of a fraudulent instrument, that the court should inhibit the defendant from continuing any legal proceedings, through AAdiich he is attempting to assert a right based on the existence of that instrument. The power to control and restrain the proceedings in pending actions, in .such a. case, is a necessary part of the remedy, AAdiich a court of equity is supposed to be capable of completely administering. (Eden on Inj. chap. 2, p. 4).”
If what, is said in Normant v. Eureka Co., 98 Ala. 191, is in conflict with what we here decide, that case, to that extent, is overruled.
■This case Avas submitted on motion to dismiss for Avant of equity, on demurrer to the bill, and on motion to dissolve the injunction
The court overruled the demurrer and the motion to dismiss and dissolve.
Affirmed.
Tyson, J., dissenting.