delivered the opinion of the Court.
Thе bill sought to enjoin the defendants, one of whom was the Sheriff of Rhea County and the othеr Miller Brothers Company, from further.advertising or offering for sale under execution prоperty described in the bill in which complainant alleged he had an interest. The prаyer was, also, that the levies made by the officer be declared null and void and the cloud on complainant’s title thereby created removed and that damages be awarded complainant for alleged libel and slander on the marketablе title of complainant to the lands. It is alleged that the officer was seeking by the levies of executions on these lands to collect a judgment of some $6,000 rendered by the Court of Appeals in favor of Miller Brothers, made one of the defendants. It was shown by the bill that, as to one of the tracts of land described, the judgment debtor Euclid Waterhouse’s interest therein was a life estate only and that complainant had a rеmainder interest therein and that the levy was upon the fee. And, as to the other tract, it was alleged that the complainant .was the holder of an unrecorded cоntract to convey the land to him, executed by Euclid Waterhouse, the holder of the record title, in exchange for other property.
*668 Demurrers were interposed which challenge the jurisdiction of the Chancery Court to entertain the bill on the ground thаt it sought to recover unliquidated damages for alleged slander or libel of the title; аlso, because the allegations of the bill were insufficient in that no allegation or showing was made of malice in the levying of the executions.
While the Chancellor sustаined the demurrers in the main, he sustained the bill to the extent of restraining the prosecution of the sale of the first tract except as to the life estate of Euclid Waterhouse. As to the second tract, the Chancellor held that complainant allеged an equitable title only as to which no notice to the defendants was shown. He dismissеd the bill, with the exception hereinbefore indicated.
In this Court there appears to be presented the question only of the' right to prosecute the cause fоr the purpose of recovering damages for the alleged slander and libel incident to the levying of the executions.
Considering, therefore, this question, we are of opinion that there was no error in the action of the Chancellor in dismissing the bill insofar аs it sought to recover damages for alleged libel and slander of com-painant’s title. We find the general rule to be, as held by the Chancellor, that in an action of this nature it is essential, as stated in 37 C. J., page 133, that, “The complaint or petition must allege malice and want of probable cause.” The only reported case in this State on this subject to which we are referred is
Smith
v.
Gernt,
2 Tenn. Civ. App. (2 Higgins), page 65
(certiorari
denied by this Court), in which it is recognized that slandеr of title is actionable, although unusual (see 37 C. J., page 129). The opinion in the G-ernt Casе quotes Cooley on Torts, 260, and cites other authorities for the rule that
*669
malice is a necessary ingredient of the action and must be both alleged and proven, and it is thеrein shown that a claim of title to property asserted in good faith will not constitutе a basis for an action of slander or libel. In addition to the authorities cited above, see the following cited in a memorandum by the learned Chancellor:
Butts
v.
Long,
Looking tо the allegations of this bill, we do not find malice charged in express terms or any such showing of facts as would give rise to a reasonable inference that the levies were made by the officer in this case maliciously. As held by the Chancellor, the return of thе officer carrier a presumption that he acted lawfully and that his returns are prima facie true. James v. Kennedy et al., 57 Tenn. (10 Heisk.), 607; Hutton v. Campbell, 78 Tenn. (10 Lea), 170.
Thе conclusion reached and above stated disposes of the appeal and renders it unnecessary for this Court to consider the question briefed as to the jurisdiсtion of the Chancery Court to entertain a claim for unliqui-dated damages upon thе grounds alleged as an incident of the exercise of the admitted jurisdictional pоwer of the Court to grant equitable relief in the removal of a cloud or otherwise.
The decree is affirmed.