Galloway v. Hendon , 131 Ala. 280 ( 1901 )

TYSON, J.

If it be true as alleged in the bill that complainant was insane at the time he executed the two deeds to the Leiths, those deeds are void and the legal title to the lands in controversy is still in him. And this is true notwithstanding respondent may have purchased the lands without notice of complainant’s insanity. — Wilkinson v. Wilkinson, 129 Ala. 279; Dougherty v. Powe, 127 Ala. 577.

The complainant, if insane, having the legal title, to entitle him to invoke the jurisdiction of a court of equity to cancel the various conveyances sought to be cancelled, must have been in the actual possession of the lands at the time of the filing of the bill, which fact must be averred. In Thorington v. City Council of Montgomery, 82 Ala. 595, it was said by Stone, O. J.: “It is settled in this State beyond further dispute, that to maintain a bill to remove or prevent a cloud on title, the complainant must be in the actual possession of the lands, and the bill, to be sufficient, must aver that fact. McLean v. Presley, 56 Ala. 211; Baines v. Barnes, 64 Ala. 375; 3 Brick. Dig. 358, § 375. There is no averment in the present bill that the complainant was in possession, and it follows that, as a suit to prevent a cloud on title, it is without equity.”

In Plant v. Barclay, 56 Ala. 563, the same learned judge, speaking for the court, said: “A party, not in possession, and claiming under a legal title, can sue at law, and in such suit test the strength of his own and that of his adversary’s title. He has no standing in a court of equity. This, upon the familiar principle, that there isi an adequate remedy at law. * * * In such cases, it is a fundamental principle, that equity will not lend its aid, unless, oh some ground averred and shown, the law court is incompetent to give adequate relief.” See also Kelly v. Martin, 107 Ala. 479; Brown v. Hunter, 121 Ala. 210; Belcher v. Scruggs, 125 Ala. 340.

In the last case cited, this court said: “There is no averment that the 'complainants were in possession of the land prior to and at the time of the filing of the bill. So far as its allegation® show, they have a complete and adequate remedy at law. Without this averment, it is wholly without equity, there being no special equity alleged showing some obstacle or impediment, which would prevent or embarrass the assertion of their rights at law.”

We have but to apply these principles to the case in hand to show that complainant is not entitled to the relief sought. The original bill contained the averment that “Orator is in actual possession of said lands now and has always been in possession of same and never delivered possession of any part of said lands at any time to either of the grantees in said deeds or their assignees.” But by amendment this averment was stricken out and in lieu thereof this averment was made: “That the said Hugh McLain never delivered possession of said lands or any part thereof to either of the grantees in said deed or to their assigns or to any of the subsequent purchasers of said lands, either at the time of the execution of said deed or at any time thereafter.” It is scarcely necessary to say that this is not the equivalent of an averment that complainant was in possession of the lands at the time of the filing of the bill. Besides, there is no evidence in the record tending to sustain this averment. Nor does the evidence afford the remotest inference that he was in the actual possession of the lands when this suit was 'commenced. On the contrary, the only reasonable deduction to be drawn from it, is; that the lands were in the possession of others who claim title to them. But had complainant proven, beyond dispute, his possession, it would have availed nothing in the absence of 'such an averment in the bill as amended. — Belcher v. Scruggs, supra.

The case of Pike v. Pike, 104 Ala. 642; Luffboro v. Foster, 92 Ala. 477, and Marrast v. Kennedy, 46 Ala. 161, are relied upon as opposed to the viewsi we have expressed. The bills in Pike v. Pike, and Marrast v. Kennedy contained separate and independent subject-matter of equitable cognizance, to-wit: fraud and. want of consideration for the deeds assailed. The bill in the case of Luffboro v. Foster sought the cancellation of a contract which was something more than a cloud upon the title to the land. It purported to impose a personal liability upon the complainant. It is clear that those cases are not opposed to the views we have expressed.

Complainant having an adequate remedy by ejectment (10 Am. & Eng. Ency. Law, 2d ed., 497) to test the strength of his title, and his right to the possession of the lands, he cannot maintain a bill to remove a cloud, upon his title until he acquires the possession of them. Wilkinson v. Wilkinson, supra, and authorities there cited; 17 Encyc. Pl. & Prac. 282, 283, 284; 10 Ency. Pl. & Pr. 1223; Bus well on Insanity, §§ 116, 117 et seq. p 137.

The decree of the chancery court is reversed, and a decree will be here rendered dismissing the bill without prejudice.

Reversed and rendered.

Sharpe, J., dissenting.