dissenting. — Each of the parties to this suit claims under a title strictly legal. Lehman, Durr & Oo. are in possession, and the Shooks instituted an action of ejectment to dispossess them, claiming under a legal title. The title of Lehman, Durr & Co. is legal. The Shooks showed no disposition to dismiss the action of ejectment, or to relax in its prosecution. To recover in that action, they must show a paramount legal title. If the title of Lehman, Durr & Oo. is the better, then the Shooks will fail in the ejectment suit. So, the present contention presents the simple, naked question of the trial of strength between two rival legal titles, for the trial of which an action at law had been commenced, and was being prosecuted, by the claimant out of possession, against the claimant in possession. In this stage of the controversy, Lehman, Durr & Oo. filed a bill in chancery against the Shooks, prayed for and obtained a temporary injunction against the action at law, and sought to have .the question of title settled by a decree of that court. The chancellor dismissed the bill, and my brothers have reversed his decree, and granted the relief prayed. The bill, seeks no discovery, and no removal of any obstruction to a fair test of the title in the ejectment, suit. To make the case still more clearly one of legal cognizance, the opinion of the majority of the court declares, and reaffirms what was decided in the case of Lehman, Durr & Co. v. Collins, at the present term, a/nte 127, that the legal title of Lehman, Durr & Co. is superior to that of the Shooks. So, the case is narrowed down to this: Can the powers of the Chancery Court be successfully invoked by one in possession of real estate, holding under a title legal in form, against another who also asserts legal title to the same lands, and who is asserting that title by suit in ejectment, and tins, before there has been any verdict or judgment pronouncing upon the validity of the respective titles ? And, in such case, will an injunction be awarded, arresting the action of ejectment, and transferring the trial of these legal titles to the Chancery Court? And is the prayer in shell bill to have the adversary’s title declared subordinate, and decreed to be delivered up and cancelled, a sufficient equity to displace the common right of all men to have their legal rights determined before law forums, and their ■contested legal demands tried by a jury of their country?
*496To remove a cloud from title, is certainly one of the clear grounds of equity jurisdiction. This, as I understand the principle, is part and parcel of the doctrine of quia timet. It is unreasonable that one’s title to land should remain forever in doubt, or should so remain until the holder of an adversary-title may choose to test its strength by suit. It may be, he will refrain from suing, until facts are forgotten, or until witnesses have died, or removed beyond the jurisdiction of the court, and, in any event, the tendency, if not the effect of such outstanding, adversary title, is to impair the vendibility and market value of the land. lienee, courts of equity will entertain jurisdiction, and remove the cloud from the title. But at whose-instance ? Not at the instance of the party out of possession. "Why ? Because, being out of possesion, there is no impediment to his bringing his action at law, and testing the strength of his-own, and his adversary’s title. So, we hold that to maintain such bill, the complainant, if his asserted title be legal, must be-in possession; and such'is the overwhelming weight of authority. — Smith v. Cockrell, 66 Ala. 64; Tyson v. Brown, 64 Ala. 244; Baines v. Barnes, Ib. 375; Jones v. DeGraffenreid, 60 Ala. 145; Daniel v. Stewart, 55 Ala. 278; Rea v. Longstreet, 54 Ala. 291; Orton v. Smith, 18 How. (U. S.) 263; Woods v. Monroe, 17 Mich. 238; Herrington v. Williams, 31 Tex. 448; Polk v. Pendleton, 31 Md. 118; Eckman v. Eckman, 55 Penn. St. 269; Sherman v. Fitch, 98 Mass. 59; Clouster v. Shearer, 99 Mass. 269; Sullivan v. Finnegan, 101 Mass. 447; Clark v. Life Ins. Co., 52 Mo. 272; Burton v. Gleason, 56 Ill. 25; Branch v. Mitchell, 24 Ark. 431; Barron v. Robbins, 22 Mich. 35; Lake Bigler Road Co. v. Bedford, 3 Nev. 399.
As I understand the opinion of my brother, the Chief Justice, he does not gainsay the principle stated above. He contends, however, that Lehman, Durr & Cd., the complainants in this suit, are in possession, and, therefore, they meet the required conditions for the maintenance of this bill. The answer to this is, that the Shooks had already commenced their action and were prosecuting it, and hence the reason of the rule had failed in this case. The rule itself being exceptional and quiatimet, should it not also cease when the reason on which it rests ceases to exist? But, says the argument, the Shooks may dismiss their ejectment suit, and thus leave Lehman, Durr & Co. without remedy, save in chancery. A sufficient answer to this is, that they have not done so;' and the present bill is framed, not in the fear that they will dismiss their suit, but to enjoin them from prosecuting it. Jurisdiction is predicated of facts averred, not of possibilities, or events that may happen. “ Sufficient unto the day is the evil thereof.”
*497It is a rule that chancery can hot be invoked, when there is an adequate remedy at law. — Ryan v. Mackmath, 3 Bro. C. C. 15; Franco v. Bolton, 3 Ves. Jr 368; Gray v. Mathias, 5 Ves. 286; Simpson v. Ld. Howden, 3 Myl. & Cr. 97; Pratt v. Pond, 5 Allen, 59; 1 Brick. Dig. 639, § 3. It is contended by the Chief Justice that a recovery in ejectment by Lehman, Durr & Go. would not be^complete and adequate; that the title under which the Shooffi claim would be still outstanding, and may become the foundation of another suit. Under our statute, Oode of 1876, § 2969, “two judgments in favor of the defendant in an action of ejectment, or in the nature of an action of ejectment, between the same parties, in which the saipe title is put in issue, is a bar to any action for the recovery of the land or any part thereof, between the same parties or their privies, founded on the same title.” The present bill seeks to restrain Shook from having one judgment of the court on the strength of his title. Is this in accordance with the principles on which this doctrine rests ? In this aspect of this case, it can be maintained, if at all, as a bill of peace — closely allied to. bills guia timet. Speaking of bills of this class, Story, 2 Eq. Ju. § 859, says: “ Another class of eases to which bills of peace are now ordinarily applied, is, where the plaintiff has, after repeated and satisfactory trials, established his right at law; and yet is in danger of further litigation and obstruction to his right from new attempts to controvert it.” After stating that this doctrine was much questioned by Lord Oowper (whose decision, however, was overruled by the llouse of Lords), this author continues: “ And this doctrine has ever since been steadily adhered to. However, courts of equity will not interfere in such cases before a trial at law; nor until the right has been satisfactorily established at law. But, if the right is satisfactorily established, it is not material what number of trials have taken place, whether two only, or more.” In Eldridge v. Hill, 2 Johns. Ch. 281, Chancellor Kent said: “A bill of peace, enjoining litigation at law, seems to have been allowed only in one of these two cases ; either where the plaintiff has already satisfactorily established his right at law, or where the person's who controvert it are so numerous as to render an issue under the direction of this court indispensable, to embrace all the parties concerned, and to save multiplicity of suits.” In Devonsher v. Newenham, 2 Sch. & Lef. 199, the subject of the controversy was a considerable landed estate, of which John Devonsher was tenant in tail, with remainder to his brother in tail. John Devonsher levied a fine and suffered a common recovery, and then made his will, devising his estate for the payment of his debts and for other purposes. The bill was filed in the name of the widow and all the children of *498John Devonsher. The chancellor, Lord Redesdale, said : “ The trusts of that will are to be carried into execution; and it is contended that therefore the persons claiming under that will have a right to litigate, upon a bill brought to carry those trusts into execution, the right of any person claiming paramount to the will; not merely the title of the person who would claim in case the will were not formally executed, but (for it must extend so far) the right of any person whatever who may conceive that the testator had no title to the estate, but he himself has a paramount title. . . . That is the claim contended for by the parties plaintiff here. Now, no such suit has ever been entertained, as far as I can find; and it would be most dangerous to give the example of entertaining such a suit. Whenever one person claims title against another who is in possession, and the enjoyment of that person is disturbed, and he is put into a situation where he can not have that enjoyment as he ought in conscience to have it, there are cases where, for the purpose of quieting the possession, a suit is entertained. For example, where several ejectments have been brought in succession, and a bill is filed to quiet the possession and prevent perpetuity of suits, upon which the court can decree a perpetual injunction, such a bill will be entertained. But when the question is merely whether A. or B. is entitled to the projDerty, and there has been no actual suit between them, there is no instance where a bill has been entertained.” See also, strongly in point, Welby v. The Duke of Rutland, 6 Bro. Parl. Cases, 575. In the case of Leighton v. Leighton, 1 Pere Wms. 671, there had been two trials at law, with the same result. .The court enjoined further suit on the title which had been twice pronounced invalid. The case of Lord Tenham v. Herbert, 2 Atk. 483, came before Lord Hardwicks. It was a case of disputed right of fishery between' two Lords of Manors. A demurrer was sustained to the bill, the Lord Chancellor remarking that “ where a question about a right of fishery is only between two Lords of Manors, neither of them can come into this court, until the right is first tried at law.” In Weller v. Smeaton, 1 Bro. C. C. 572, Lord Chancellor Thurlow’s opinion is correctly expressed in the head note as follows : “ Bill to be quieted in the possession of a mill; and that defendants might pull down works about it, and be restricted from erecting others: demurrer, because plaintiff had not established his right at law, allowed.” The case of The Earl of Darlington v. Bowes, 1 Eden, 270, was an application for an injunction after one verdict and judgment. It was said, “ there was no precedent of a decree, where the inheritance would be bound, being made upon one verdict only.” So, in the case of Patterson v. McCamant, 28 Mo. 210, it was *499said: “ A bill of peace to restrain a person from instituting ejectment suits against another, on the ground that such suits would be vexatious, can not be maintained, unless the title to the land in dispute has been fully and satisfactorily litigated at law.” In the body of the opinion it is said: “We have not been able to perceive any principle upon which the decree in -this ease can stand. The principle asserted in the bill and carried out by the decree is, that a court of equity will interpose its authority by perpetual injunction in favor of a person in possession of land, whose title is threatened by another person holding a worthless claim to the same land, where the person holding the adverse title is insolvent, and he has already brought two suits in ejectment, and caused them to be dismissed, or taken non-suits. . . . There are two kinds of bills of peace, and only two kinds.” The first class he characterizes as bills to prevent a multiplicity of suits. • This case presents none of the essentials of a bill of that class. The opinion proceeds : “Another class of cases is where the title has been fully and satisfactorily litigated at-law. To put a stop to vexatious suits, which courts of law can not do, equity will interpose by injunction.” Knowles v. Inches, 12 Cal. 212, is to the same effect. And such, I may add, are all the authorities. I have not found a single case where relief was granted on a bill such as this, while there is an overwhelming weight of authority against the maintenance of such a bill. — Leading Cases in Éq., Yol. 2, Part 2 (Earl of Oxford’s Case), 1349.
But how stands the question on principle? A few authorities hold that one out of possession, but claiming ,a legal title, may file a bill to remove the cloud his adversary’s title creates, to have his title quieted, and to be let into possession. — Almony v. Hicks, 3 Head, 39; Bunce v. Gallagher, 5 Blatchf. 481; Thompson v. Lynch, 29 Cal. 189. We have declined to follow those cases. — Smith v. Cockrell, supra, and see other cases cited supra. How, the ruling of my brother, the Chief Justice, is, that, although by the Shooks’ suit in ejectment they have removed the principal ground on which courts of equity entertain bills to remove clouds from title — namely: that being in -possession, the complainant can maintain no suit at law to test the title — yet, the right to have the adversary title delivered up and cancelled furnishes a special equity, which authorizes him to go into chancery to obtain foil and adequate relief.
If this furnish a special equity, which will uphold a bill by the claimant who is in possession, why will it not equally maintain a bill by one who asserts legal title, but who is out of possession ? If the exercise of such power is necessary to give adequate and complete redress to the litigant in posession, why is it not equally necessary to give adequate relief .to his adversary *500put of possession? Can there be a difference in the measure of relief the several parties are entitled to, dependent on the accident of possession ? And if we accord this right to the defendant, because he is in possession, and deny it to him who is out of possession, do we not discriminate against the latter, by confining him to one mode of redress — an action at law — and to incomplete relief, leaving his adversary’s title outstanding and uncancelled, while to the former, we give the option of defending at law, or of arresting the proceedings in the law court, and having the several titles pronounced upon by the chancellor, and of compelling his adversary to surrender up his title to be can-celled ? Can that be a sound principle which works such unequal results? In Smith v. Cockrell, supra, we denied the relief here prayed, because the complainant was out of possession. Iiis asserted title being in form legal, we ruled there was no impediment in his way, to prevent him from recovering in an action at law, if he had the better title; and we denied him relief on his bill.
In what is said above, I am dealing with legal titles. If the plaintiff’s claim, or the defendant’s defense be equitable, or if either claim rest on an estoppel in pais, this gives the court of chancery jurisdiction to inquire of and make available such equitable claim or defense. — 1 Brick. Dig. 627; Ib. 796, § 7; You v. Flinn. 34 Ala. 409. And there may be special equities, which would give the chancery court jurisdiction, in cases other than these.
It is doubtful if what is stated above does not conflict to some extent with some of the utterances found in Ray v. Womble, 56 Ala. 32. To that extent, I desire to express my disapprobation of that case. See also Lockett v. Hurt, 57 Ala. 198. An expression stated arguendo in Peirsoll v. Elliott, 6 Pet. 95, goes somewhat to sustain Lockett v. Hurt. I express no decided opinion on the question there raised. Should the question come again before us, I think section 2969 of the Code of 1876, should be considered in its bearings on the question decided in Lockett v. LLivrt. I only throw out this suggestion, without intending to intimate an opinion upon it.
My brother, Somerville, as I understand his views, does not differ’ with me in what is said above. He at least expresses no dissent from them. The bill of Lehman, Durr & Co. charges that the title, under which the Shook ejectment-suit was brought, is fraudulent as against them. I think it may be conceded this charge is supported by the testimony. Following his views, as expressed* in his dissenting opinion in Smith v. Oochrell, supra, he holds that this fraud furnishes a special equity, which will uphold the present bill. In that case I expressed my non-concurrence in his views, and the Chief Justice fully concurred *501with me. He, in common with the Chief Justice, thinks the bill in this case contains equity, but in the grounds on which they rest their several opinions, they are widely at issue. The equity on which the Chief Justice rests his opinion, is, in my judgment, unsound, and in this Justice Somerville agrees with me. So, the equity on which Justice Somerville bases his opinion, I hold to be equally untenable, and in this view the Chief Justice concurs with me. Still, two members of the court think the bill contains equity, and that the chancellor erred in dismissing it. What should be our decision ? I do not think this is a case, where two or more judges reach the same conclusion, but for different reasons. That principle I think applies, and properly applies, where the same conclusion of fact or law is reached, but by different processes of reasoning. Here the inquiry is one of law, and my brothers do not agree in their •conclusion. The conclusion of law arrived at by each, is a minority opinion in this court. To test this, let us suppose two bills are filed, one resting the equity on the ground relied on by the Chief Justice, and the other, on the ground on which Justice Somerville bases his opinion. It is manifest we would hold each bill wanting in equity. Can two differing minority opinions become a majority opinion? We, in this investigation, are pronouncing on questions of law. Can the finger be pointed to any legal principle, declared in this case, which will maintain the equity of the bill? Certainly not; for each of the grounds relied on is pronounced by a majority of this court' to be unsound. And when this case returns to the chancellor, if we reverse it, how is he to determine there is equity in the bill, and on what ground? The equity rests on two grounds, neither of which derives any support from the other, and each of which grounds is unsound, according to the judgment of a majority of this court. Our decisions ought to be rules of action, and rest on principles which command the assent of at least a majority of the court.
In my opinion, the decree of the chancellor ought to be affirmed ; affirmed on principle, and affirmed as the logical result of our differing opinions. . •