The appellees, as heirs at law of James J. "Willingham, deceased, filed the original bill, to recover the possession of lands descended, and the rents and profits thereof, of which the appellants were in possession, claiming title through a sale and conveyance made by the administrator of Willingham, under a decree of the Court of Probate of Lowndes county. The whole ground of relief is the asserted illegality, and consequent invalidity, of the decree of the Court of Probate ordering the sale of the lands. A demurrer was interposed by the appellant, Tyson, assigning as cause that the complainants had a plain and adequate remedy at law. We may dismiss all other considerations than that of the question presented by the demurrer, which is directed to the jurisdiction of the court of equity.
By the common law, and under the statute of descents, immediately on the death of an intestate, his lands descend to his heirs at law : they are clothed with the estate residing in him, and are entitled to the possession, if it was vested in him. The administrator does not succeed to the estate, or the possession, though he may, by exercising the statutory power of renting, or by proper proceedings in the Court of Probate, obtaining an order to sell for the payment of debts, or for the purpose of making distribution to the. heirs, intercept their right to the possession, and divest tfiem, by a sale *248under such order, of the estate they take by descent. — Masterson v. Girard, 10 Ala. 60; Chighizola v. LeBaron, 21 Ala. 406; Br. Bank Mobile v. Fry, 23 Ala. 770. The jurisdiction of the court to order a sale is purely statutory; and it can only be called into exercise, when a proper party presents to the court an application, in writing, disclosing the existence of a' state of facts, upon which the court may order a sale. Whether the estate the heir takes by descent'has been divested by a sale under the order of the court, depends always upon the inquiry, whether the record of the court shows affirmatively its jurisdiction. The jurisdiction must appear from the record — it can not be presumed, or intended, from the decree or order of sale. When the jurisdiction appears, the proceedings may abound with irregularities, which would compel on appeal a reversal of the decree, without affecting the title of the purchaser. The decree is the source of title, and of the divestiture of the estate of the heir; and while irregularities will not vitiate it, except on error, if jurisdiction does not appear, it is void, a mere nullity, working no interruption of the estate of the heir, and conferring no right on the purchaser. — Bishop v. Hampton, 15 Ala. 761; Wyman v. Campbell, 6 Port. 219.
The record of the Court of Probate, as it is exhibited by the transcript introduced in evidence, does not affirmatively disclose the jurisdiction of the court to order a sale of the lands. The estate descending to the appellees has not been divested; and it is the fee simple, pure and absolute.
In the absence of fraud, of which a court of equity can alone take cognizance — a fraud not of the character cognizable at law — or of accident, or mistake, or of a necessity for discovery, a court of equity will not intervene, to establish and enforce a legal title to lands, or to change the possession, and transfer it to one whose title may be disputed. The jurisdiction of courts of law, in such a case, is clear and undoubted, and the remedies they furnish are plain, adequate, and complete, securing to the party all the rights ana all the redress to which he is in justice entitled. The order for the sale of the lands being void, working no change in the title of the complainants, conferring no right to the possession on the defendants, the bill is simply a real action for the recovery of the possession and the mesne profits while it was wrongfully withheld. There is no authority which will justify a court of equity in entertaining jurisdiction, establishing the right of the complainants to the possession, and compelling payment of the rents and profits. This is the appropriate function of a court of law, with v'hich a court of equity can not interfere, *249in the absence of circumstances rendering the remedy at law inadequate.
The prevention or the removal of clouds on the title to real estate is, certainly, a recognized ground of equitable jurisdiction. The jurisdiction, in its nature, is precautionary and preventive — the purpose is protection against anticipated wrongs or mischiefs, and not to afford redress for them after they have occurred. — 1 Story’s Eq. § 701. When a party is in possession, and there is an outstanding conveyance, which casts a cloud on his title ; or a sale and conveyance threatened, which, if consummated, would create a cloud; a court of equity may intervene to remove the one, or to prevent the other. — Rea v. Longstreet, 54 Ala. 291. Having possession, there is no remedy at law, to which the party can resort, ^ to test the strength of the apparent title which exists, or which is about being created, and which may- at any time be made the foundation of an action for a disturbance of his possession, and which embarrasses the alienation of the estate. But, if he is not in possession, there is no necessity for a resort to a court of equity, to remove or to prevent the cloud on the title. The remedy at law, for the recovery of possession, to which he may resort, testing the strength of the title, is adequate, and excludes the jurisdiction of a court of equity. — Daniel v. Stewart, 55 Ala. 278; Orton v. Smith, 18 How. 263; Barron v. Robbins, 22 Mich. 35.
Nor will the court, in any case, interfere to avoid sales, or to cancel conveyances, which, of themselves, afford inherent, intrinsic evidence of their own illegality and invalidity. There is no reason for a judicial interference ; for such sale, or conveyance, bearing the evidence of its invalidity, can not create a cloud on the title, nor diminish the security of the true owner. It is not capable of being used as an instrument of vexatious litigation ; and the lapse of time can not endanger the means of defense against it, if rights under it should be asserted. — 1 Story’s Eq. § 700; Rea v. Longstreet, supra; Daniel v. Stewart, supra; Kellam v. Richards, 56 Ala. 238; Posey v. Conway, 10 Ala. 811.
The complainants were not in possession of the lands; and if they had been, the sale and conveyance under the decree of the Court of Probate was void. The illegality vitiating them appeared on the face of the record of the Court of Probate, which must have been produced as the very source and foundation of any right or title claimed under them ; and its exhibition only was necessary to ensure its condemnation. They create no cloud on the title of the complainants, and embarrass no legal remedies to which they may resort for the recovery of possession and mesne profits.
*250The demurrer was well taken, and should have been sustained. The decree of the chancellor must be reversed, and a decree here rendered, dismissing the original bill, at the costs of the appellees in this court, and in the Court of Chancery.
Stone, J., not sitting, having been of counsel.