Hutson v. Campbell

ANDERSON, C. J. “Independent of our statute for the quieting of titles and the determination of claims to real estate (Code, § 5443 et seq.) courts of equity have jurisdiction to cancel and remove a specially described cloud upon complainant’s title, when the owner is in possession, and when the evidence of the alleged cloud is not void on its face, and extrinsic evidence is necessary to show its invalidity.” King Lumber Co. v. Spragner, 176 Ala. 564, 58 South. 920. “It is no answer to such a bill to say that the complainant could defeat an action of ejectment brought by the respondent. The test is not whether the true owner might he able to defend successfully against an ejectment suit, but would he be put to extraneous-evidence in order to do so.” Greene v. Boaz, 157 Ala. 68, 47 South. 255. In the case at bar the respondent Hutson’s recorded deed shows title in him, and the *638 complainant, not being in possession and control of the prior deed, would of necessity have to resort to extrinsic evidence to establish his superior title in case Hutson brought an action at law for the land. True, this complainant can maintain an action at law for the deed against Johnson, but the equity of the bill must rest upon the existing status, and not upon future conditions or contingencies essential to a plain and adequate remedy at law. Moreover., the possession of the complainant’s unrecorded deed might not necessarily overcome Hutson’s already recorded deed without the aid of extraneous evidence. As the bill contains equity to quiet title and cancel the Hutson deed, a court of equity has the power to do all proper things essential to the perfection and respose of complainant’s title, and may require Johnson to restore the deed which he holds as complainant’s agent for having the same recorded. In the case of Tait v. Am. Mortgage Co., 132 Ala. 193, 31 South. 623, the complainant seems to have been in possession and control of all ■ muniments of title regular and valid as against the subsequent deed from Tait to his mother, Narcissa Tait, and needed no extraneous evidence to establish a superior title to the land. The circuit court did not err in overruling respondent’s demurrer to the bill, and the decree is affirmed. Affirmed. SAYRE, GARDNER, and MILLER, JJ. concur.