This is a bill in equity to cancel a deed under which defendants claim title and hold possession, and to quiet plaintiff’s title, which is an equitable title only, and he out of possession. Demurrer to the complaint sustained, and plaintiff appeals.
The plaintiff alleges in his bill that his father, James H. Burke, on the 10th of April, 1872, purchased from Alexander George, grantee of the state, the lot in controversy, namely: “Twenty feet off the south end of lot 6 in block 1, in Pope’s addition to the city of Little Rock,” for the consideration of $1,300, but for “business conveniences” had the deed made to his father, the grandfather of plaintiff, John Burke; that the understanding was that John Burke, Sr., was to hold merely as a trustee for the benefit cf the heirs and assigns of the purchaser, the said James H. Burke, and that plaintiff is his only son and heir, he having died soon after the purchase, and that John. Burke, Sr., now also deceased, always recognized his title to be only that of a trustee, and in support of this plaintiff files, as an exhibit to his complaint, the answer of said John Burke, Sr., in another suit concerning the same property, in which he disclaims all other ownership, except in trust.
The plaintiff further shows, in his complaint, that defendants are in possession, claiming under a quitclaim deed from' one E. S. Stiewel, who held under a deed made in the chancery court of Pulaski county in an overdue tax proceeding, and calls this deed in question for some alleged errors and irregularities in said overdue tax proceedings, and charges fraud upon the defendant Junction Railway Company in making said deed call for false and erroneous description of the property, and makes other collateral attacks upon said deed and the proceedings upon which it is founded.
The defendants demurred on five several grounds: First, generally; second, because plaintiff had adequate remedy at law; third, because plaintiff out of possession could not maintain an action to remove opposing title; fourth, because the action is one properly triable at law; and fifth, because there is no equity in the bill.
There were various other steps taken in the case, but the foregoing statements are all that are necessary to be made in order to understand the point at issue.
This is a case in which the plaintiff has only an equitable title, and in order to obtain the legal title or a legal title, if ever he can, he must do so at the conclusion of a controversy with third parties, and then be permitted to controvert the title and possession of the defendants by a collateral attack upon their deed in chancery, the defense of the defendants being purely legal. While the plaintiff is thus, in the first instance, seeking to establish his legal title as against the third parties, the defendants herein are required, as it were, to stand by as parties defendant; but nevertheless as idle spectators for the time being, until the plaintiff has secured standing ground upon which to make his contest against them. If the defendants’ deed is assailable at all collaterally, it is assailable at law, and at the instance of one having a better title.
This case is settled by the principles announced in the case of Ashley v. Little Rock, 56 Ark. 391, wherein'it is said: “Equity has no jurisdiction of a suit against an adverse claimant in possession of land to remove cloud on.the title, nor to decree partition thereof.”
The demurrer of the defendants to the jurisdiction of the court was properly sustained.
Affirmed.