144 Ark. 528 | Ark. | 1920
(after stating the facts). The equity jurisdiction to quiet title, independent of statute, can only be invoked by a plaintiff in possession, unless his title be merely an equitable one. The reason is that where the title is a purely legal one and some one else is in possession, the remedy at law is plain, adequate and complete, and an action of ejectment can not be maintained under the guise of a bill in chancery. In such case the adverse party has a constitutional right to a trial by a jury. Mathews v. Marks, 44 Ark. 436; Ashley v. Little Rock, 56 Ark. 391; Burke v. St. Louis, I. M. & S. Ry. Co., 72 Ark. 256, and St. Louis Refrigerator & Wooden Gutter Co. v. Thornton, 74 Ark. 383.
The action has been greatly extended by statute and in many States is the ordinary mode of trying disputed titles. Pomeroy’s Equity Jurisprudence (3 ed.), vol. 4, section 1396. Such is not the case in this State, however.
Section 665 of Kirby’s Digest, which is a part of the chapter relating to the method of procedure in confirming tax titles, provides that there shall be no confirmation of the sale of any lands that are in actual possession of any person claiming title adverse to the petitioner. At the time the proceedings in the case at bar were brought by Gr. W. Pearman, Anna Pearman was in the actual possession of the lots in controversy, claiming title thereto adverse to the petitioner. She claimed that Gr. W. Pearman had given the lots to his son who was her husband, and that she and her husband had resided on the lots until they went West and afterward collected the rents on the same until his death. He left surviving him his widow and an infant child. The child died in about three months after the father, and the widow went into possession of the lots after her child’s death, and she claimed to hold adversely to Gr. W. Pear-man at the time he brought the proceedings to confirm his tax title in the lots.
Anna Pearman did not seek to quiet her own title to the lots, and thereby give the court jurisdiction of the entire controversy as was the case in Goodrum v. Ayers, 56 Ark. 93. She was content to file exceptions to the right of Gr. W. Pearman to have his tax title confirmed and did not seek affirmative relief on her own account. She was in adverse possession of the lots at the time Gr. W. Pearman filed his petition to confirm his tax title> and the court erred in granting the relief prayed for.
It follows that the decree must be reversed and the cause will be remanded for further proceedings in accordance with the principles of equity and not inconsistent with this opinion.
