The opinion of the court was delivered by
Redfield, J.The orator alleges in his bill that his ward, William JEL Ryan, was the owner of a farm in Fairfield, and had a homestead interest therein ; that he was adjudged a .bankrupt by the district court of the United States for Vermont; that the defendant was duly appointed assignee of his assets, and that a homestead was decreed to said Ryan by said court; that Ryan absconded, and that the orator was appointed his guardian ; after which the defendant obtained judgment without service of process, or notice, or recognizance for review, before a justice of the *306peace, against said Ryan, and levied his execution and set off said homestead. The answer avers that the district court adjudged that Ryan had a homestead interest in said premises; that the defendant’s claim, upon which he obtained said judgment, was anterior to the acquisition of said homestead; that said homestead was not exempt from his execution and levy, and that his judgment was regular and valid. The case was submitted on bill and answer.
I. This is a bill quia timet, to remove a cloud from plaintiff’s title to a parcel of land. Another cloud, somewhat dense, seems now to have enveloped the title, by a decree of foreclosure which has become absolute against both parties. And as this is averred and relied upon in the answer, it should operate, at least, as a disclaimer of title on the part of the defendant. It is doubtful, upon the averments in the bill and answer, whether Ryan had an absolute and entire homestead. Homesteads, under our statute, may exist sub modo, subject to certain debts, or mortgage liens. Whether it is not the province and duty of the bankrupt court to marshal the assets of the bankrupt, and determine priorities of right and lien, or what has been done as to this property by that court, is not made very clear in proof or argument. But we think this not a case for the interposition of a court of equity.
There is no fund locked up awaiting the determination of title, as in Hodges v. Griggs, 21 Vt. 280, and the court, in that case, directed the parties to implead at law. There is no averment that makes this an exception to the common case where one party claims to be the true owner of land, and alleges that another claims it without valid title. The jurisdiction of courts of law and of. equity is not concurrent in this class of cases, leaving a party his election in which forum he will have his rights determined. But courts of equity will, in their discretion, in exceptional cases, interpose to prevent fraud and wrong. Where one holds the apparent title, but it is invalid in the hands of those who have notice of the equities of another, and there is reason to apprehend he will convey it to an innocent purchaser, a court of equity will interfere to restrain a party from such threatened act; for otherwise it would work a fraud to an innocent party. But *307when the title asserted is all of record, and its infirmities can be exposed at all times, and against all persons, a court of equity will not interfere, but leave the party to his remedy at law — the forum provided for settling such issues of fact. Such is the general current of the authorities. Van Doren v. Mayor of New York, 9 Paige, 388; Mallory v. Dougherty, 16 Wis. 267; Munson v. Munson, 28 Conn. 582; 1 Story’s Eq. Juris. § 700 a, and note; Woodman v. Salstonstall, 7 Cush. 181; Blackmore v. Von Vleet, 11 Mich. 252.
In Wing, Adm'r, v. Hall Darling, 44 Vt. 118, Wheeler, J., says: “ The relief in such cases is granted, not as a matter of right that the party seeking it has, but as a matter of discretion that the court may or may not exercise, as appears fit.” That discretion is not arbitrary, but judicial, and is, to be exercised in exceptional cases where the remedy at law is inadequate, and delay dangerous; or some other ingredient is shown requiring the effectual powers of equity jurisdiction to prevent fraud and injustice. If the defendant’s judgment, execution, and levy, are void, their infirmity is apparent upon the records, which are fixed, and will remain; and when the defendant attempts to oust the orator by asserting the validity of his judgment and set off, there would seem little danger, and the orator could readily show their invalidity.
But if a party who distrusts his own title and fears that of another, may, at his election, and as an experiment, drag into a court of equity all persons who may have some claim or title to the premises, and thus occupy the court in canvassing titles and determining rights that were never asserted, it would be perverting a very salutary rule of equity law to needless and mischievous ends. The inquiry into title to lands, has a special fitness to trial by jury; and we think that litigation would be abridged, and public justice subserved, by adhering to a just and salutary rule of law, rather than perverting it to new experiments.
The decree of the court of chancery dismissing the orator’s bill, is affirmed, and the cause is remanded.