Lehman, Durr & Co. v. Shook

SOMERYILLE, J.

I concur in the conclusion reached by the Chief Justice in this case, without committing myself to the views expressed in his opinion. The bill is filed by a complainant, who claims to hold the legal title to certain lands, and its purpose is to cancel a deed held by two of the defendants on the same lands, on the ground that the instrument was void for framd, and was a cloud on the title of complainants. If there were no averment of fraud, it may be seriously questioned whether such a bill would lie, or ought to be maintained. But when an instrument purports on the face of it to be a valid conveyance, so as to constitute a cloud on the title of the property conveyed, and has been -fraudulently executed, as seems to be the case here, I am of opinion that equity will and should take jurisdiction, on the ground that the remedy by ejectment at law is not full and adequate. A court of law is incompetent to .sweep away the deed which clouds complainants’ title, so long *495as it remains in the hands of the defendants, un can celled, and especially where it has been recorded under the registration laws. The sale of real estate may be interminably embarrassed so. long as the property is clouded by such an encumbrance. For the support of these views I refer to my dissenting opinion in Smith’s Ex’r v. Cockrell, 66 Ala. 64, where the authorities are fully collated.