Rea v. Longstreet & Sedgwick
54 Ala. 291
Ala.
1875
Check Treatment
BRICKELL, C. J.

It is settled that courts of equity have jurisdiction to remove a title, or claim of title, which may operate as a cloud upon the title of the true owner, from which an injury to him ' may be reasonably apprehended; and for that purpose may decree that deeds, or other instruments, by which such cloud is created, shall be *293fiven up and cancelled.—2 Story’s Eq. § 700; Willard’s Eq. 302; Hamilton v. Cummings, 1 Johns. Chan. 516; Pettit v. Shepherd, 5 Paige, 50; Lyon v. Hunt, 11 Ala. 295; Posey v. Conway, 10 Ala. 811.

The principle is extended so as to authorize equitable interference, when a party evinces a fixed determination to make a sale, which, if made, will cast a cloud upon the title, injuring the owner, and which it would be against conscience to suffer made, as a source of title adverse to him.—Pettit v. Shepherd, supra; Tucker v. Kenniston, 47 N. H. 270; Kimberly v. Sells, 3 Johns. Chan. 471; Bank U. S. v. Schulty, 2 Ohio, 505; Key City Gas Light Co. v. Munsell, 19 Iowa, 306; Christie v. Hale, 46 Ill. 117 ; Pixley v. Huggins, 15 Cal. 127. Every conveyance from the grantor, through whom the party complaining deduces title, not void on its face, but the invalidity of which can be made apparent only on evidence of extrinsic facts, necessarily casts a cloud upon the title. It will embarrass the alienation of the estate, and freedom of alienation it is the policy of the law to promote. It will render the true owner uneasy in the possession and enjoyment of the estate, because it may at any time be the foundation of litigation; and it awakens suspicions of his title in the minds of others, though when the facts are developed its invalidity may be as apparent as if written on its face. These facts may rest, to a great degree, in the memory of witnesses, who may be dispersed, or may die; or they may be obscured by the wearing away of human remembrance. The litigation arising when the facts in controversy are of recent occurrence and fresh in the minds of witnesses, can be always more justly determined than that arising after a long lapse of time. It is better for all parties in interest, better for the community, that disputed titles to real estate should be speedily quieted. A decree of the court of chancery quieting the title, gives to the true owner a sense of security, higher than that he would derive from the most solemn conveyance, though it may add nothing in law to its validity. It inspires in others a confidence in the title they would not extend to another not having received judicial sanction. If the adverse title is superior to that of the party in possession, the decree pronouncing its superiority removes all cause for future litigation; gives to it its real value; while without it the value is merely speculative; its transfer champertous; and it leaves the alienation and descent of the estate clouded and uncertain.

The authorities are not very harmonious on the power of a court of equity to intervene to prevent a cloud on the title, by sales under judicial process, against one who has no title. *294"When no question of fraud arises, and it is only a matter of superiority of title, deduced from the same source, the decisions of this court have conclusively settled, that the power exists, and should be exercised.—Burt v. Cassety, 12 Ala. 734; Downing v. Mann, 43 Ala. 266; Martin v. Hewitt, 44 Ala. 418. Whether, when a creditor acting in good faith, having reason to believe that a conveyance made by his debtor, is fraudulent and void, and who is seeking by legal process, and a sale under it, to avoid the conveyance, will be arrested and compelled to litigate the title in a court of equity, is a question of importance this case in its present aspect does not present.—Gunn v. Harrison, 7 Ala. 585; Marriott v. Givens, 8 Ala. 694; Tucker v. Kenniston, 47 N. H. 272; Freeman v. Elmendorf, 3 Hals. Ch. 475, 655.

It is difficult to state any general rule, which can be relied on, as determining what constitutes such a cloud on the title as wilbauthorize the interference of a court of equity for its prevention. Generally, an action at law, or a suit in equity, will not be entertained until there is an actual disturbance of rights. Exceptions to this rule are, and have been long recognized in a court of equity, and the jurisdiction of that court is often exercised to prevent, as well as to redress injury. An injury reasonably apprehended to an existing right, which, if not prevented, will be irreparable; or an inability to defend and protect himself on common law principles against some act en pais, or some legal proceeding of his adversary, will authorize the party to invoke the interference of a court of equity. A mere fear of suit; or that another merely questions one’s title, or even asserts a hostile title, will not justify the court in intervening and compelling litigation, which might not otherwise arise.—Wilkes v. Wilkes, 4 Edw. Ch. 730; Scott v. Onderdonk, 14 N. Y. (4 Kernan) 12.

The true test recognized by the authorities in this State : “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 would be necessary the cloud would exist; if the proof would he unnecessary, no shade would be cast by the presence of the deed. If the action would fall of its own weight, without proof in rebuttal, no occasion could arise for the equitable interposition of the court.”—Pixly v. Huggins, 15 Cal. 133; Moore v. Cobb, 14 Wis. 217. A court of equity will not interfere 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 *295really defective, and inequitable by something not appearing on its face. Hence, the court never intervenes to cancel or remove as a cloud on the title, a deed void on its face. Such a deed needs only exhibition to be condemned at law or in equity, and can cast no shade on the title.—Posey v. Conway, 10 Ala. 811; Van Doren v. Mayor, 9 Paige, 388; Wiggins v. Mayor, ib. 23. A sale of the land of the true' owner, as the property of a mere stranger, with whom he is not connected, from whom he does not mediately or immediately trace title, cannot cast a cloud on his title.—Armstrong v. Sandford, 7 Minn. 53; Montgomery v. McEwen, 9 Minn. 107.

The bill does not show that the husband of the complainant ever had any right or title to the lands, on which the attachments have been levied ; nor. that she claims the lands from or through him directly or indirectly. In all its allegations, it negatives the supposition that he ever had any connection with the title or its conveyance, or the consideration supporting the conveyance. The complainant herself, with moneys of her statutory separate estate, purchased the lands of a third person, who made a conveyance directly to her. All right or interest in her husband, past or present, is excluded by these allegations. A sale of the lands under judicial process against the husband, would not affect her title— could cast no cloud on it. A conveyance derived from such sale would not constitute a title prima facie good against her. It would not support an action of ejectment against her, if she offered no evidence to sustain her title, or to show the invalidity of that appearing on the conveyance. The action would fall of its own weight, though the complainant should be passive, not giving evidence in defense. We are not aware of any authority which authorizes the interference of a court of equity to prevent such a sale, as the complainant apprehends, which, if made, is -incapable of working her any other injury than to arouse unreasoning fears or suspicions of her title in the minds of others.

The equity of every bill must be determined by its allegations, and these must support any decree which may be rendered on it, in favor of the complainant. It is probable, if the facts appearing in evidence had been averred in the bill, the complainant would have been entitled to relief, for it is shown the grantor of the complainant derived title from the husband, and the purpose on the part of the attaching creditors is to controvert the validity of the several conveyances. For this reason, we suppose the chancellor dismissed the bill without prejudice.

It is scarcely necessary to say that the argument of the appellees, that the complainant had an adequate remedy at *296law, by moving tbe court to set aside tbe levy of tbe attachments, or by claiming a trial of the right of property, under the statute, is not tenable. Either would have been an anomaly in judicial proceedings. A motion to set aside the levy of an attachment, or of an execution, can only be made by a party or privy to the process. It is a remedy for the prevention of the abuse of the process by the officer, or the prevention of injury to the parties by his irregularities, or errors, and not a mode of trying the title to the property on which the process may have been levied. A trial of the right to personal property only, not of the right to land, can be claimed under the statute. The defect in the appellants’ bill, is, that under its allegations, the levy of the attachments, and threatened sales, are not of injury to her — are incapable of affecting her title. She is in possession, by her vendee, under an executory contract of sale, and that possession, a sale and conveyance under process issuing on judgments rendered on the attachments, would not disturb. The purchaser would be compelled to resort to ejectment to disturb it, and such action would fail, because title in the defendant in the attachment could not be deduced, putting the appellant or her vendee, on proof that it had passed from him to the appellant. A case for equitable interference is not, therefore, presented by the bill.

The decree of the chancellor is affirmed.