This case has been so fully presented that I can dispose of it’ as effectually now as at any other time.
The first cause of demurrer is that there is a lunatic com-*533.plainanfc who prosecutes by her next friend, and not by her guardian. Norcom v. Rogers, 1 C. E. Gr. 484 and Dorsheimer v. Roorback, 3 C. E. Gr. 438, are cited as sustaining the objection. In the first of these cases a declared lunatic filed a bill in his own name against his guardian, to which a demurrer was .filed'. Chancellor Green held that a lunatic sues only by his committee or guardian, or by the attorney-general or next friend where the interests of the guardian clash with those of the •lunatic. That the objection, if it appeared on the face of the bill, could be raised by demurrer or by motion to take the bill from the files. In that case the demurrer was withdrawn and .the bill was ordered to be taken from the files. In Dorsheimer v. Roorback the bill was filed in the name of an idiot by his next friend, but without his having been appointed guardian upon inquisition found, and without any order authorizing him to file the bill as the lunatic’s next friend. Chancellor Zabriskie •declared that a lunatic must sue by guardian appointed, either on inquisition found or specially appointed, and ordered the bill to be removed from the files.
In the case under consideration one of the complainants is -stated to be a lunatic, who sues by her next friend, but there is no averment that the party who thus seeks to act for the lunatic has been in any way appointed her guardian or that he has been admitted by any order of the court to appear as her next friend. In the absence of such a recital it cannot be assumed that such an authority has been conferred. The face of the bill, therefore, shows that one of the plaintiffs cannot maintain the suit. This may be taken advantage of by demurrer and is fatal to the whole bill. Story Eq. Pl. § 505 note 3.
The real question, however, which is the essential matter •argued between the parties is presented by the second and third •causes of demurrer. These deny the complainants’ equity because the bill alleges that another person, not a party to the suit, is the owner of the premises, to quiet the title to which the complainants olaim the right to have a decree and because the bill makes no statement that the complainants are in the peaceable possession of the lands.
*534The complainants claim to occupy a position which entitles them to file a bill under the provisions of the act of 1870 (Gen. Stat. p. 3486), to quiet title, in accordance with the mode of procedure'prescribed in that act, or if not under that act, then under the general equity powers of this court.
Taking up the claim that the complainants have a status to file this bill under the act of 1870, I think it is very clear that they have not. The statute prescribes the class of persons who may file bills to compel the determination of claims and to quiet titles. It is declared in the very first line of the act'“ that when any person is in peaceable possession of lands in this state claiming to own the same,” &e., he may bring a suit in chancery to settle the title of the said lands. The complainants’ bill in this case coutains no allegation whatever that they are in the peaceable possession of the land. The showing of an actual peaceable possession is an absolutely essential requirement, recognized by a line of cases beginning with Powell v. Mayo, 9 C. E. Gr. 178, and coming down to Oberon Land Co. v. Dunn, 11 Dick. Ch. Rep. 749, which makes it entirely clear that, in order to give this court jurisdiction at all under the statute of 1870, the complainants must be in the peaceable occupation of the land under a claim of ownership.
The bill not only fails to allege any possession in the complainants, but it substantially intimates that another person— Mrs. Steward, who is not made a party — is in the actual possession of the premises, claiming to own the same. The bill cannot be maintained under the act of 1870.
The complainants say, however, that they have a status to invoke the aid of a court of equity for the relief they seek, irrespective of the express provisions of the statute, because they say that it is only by such a bill that they can have the relief whic-h they claim, namely, a recovery of the one-third interest in the farm, which they insist they are entitled to have as devisees of the first limitation over under Jane Sinnichson’s will, or a recovery of the $4,000 conditioned to be paid in the Jerman mortgage on the Delaware farm, now held by the Smyrna Bank. They contend that they, although grandchildren of James B. *535Sinnickson, are yet, by the true construction of Jane’s will, his children, entitled to take what they claim is the first limitation over under her will.
The complainants have a right to present their claim by a proper suit and to have it determined, but it does not follow that their present suit is, for that reason, justified.
Since the passage of the statute prescribing the circumstances under which bills to quiet title may be filed, it may be questioned whether a bill seeking the same relief, but which does not show compliance with the statutory requirements, ought to be entertained. But irrespective of this point, the general equity jurisdiction, independent of the statute, can only be invoked by a plaintiff in possession of the land holding the legal title, and even by him, only under special circumstances of vexations of multiplied litigations, justifying the action of a court of equity. Pom. Eq. Jur. § 1396.
'Equity will not, where no equitable question is presented, entertain a suit to declare, as is asked in this bill, that the complainants’ title is good, and that the defendants’ claim is bad. The determination of the sufficiency of purely legal titles to land disassociated from questions of trusts or other matters of
an equitable nature,' must be invoked in the courts of law. Hart v. Leonard, 15 Stew. Eq. 419; Torrey v. Torrey, 10 Dick. Ch. Rep. 414; Fahy v. Fahy (March 14th, 1899), 13 Dick. Ch. Rep. 210.
If Mrs. Steward is in actual and peaceable possession of the farm, claiming to own it, and should file a bill to quiet title making the complainants herein, who claim under the first limitation over in Jane Sinnickson’s will, and the defendants herein, who claim under the second limitation over in that will, parties defendant to such a bill, the case would bear a very different aspect.
The complainants’ counsel insists that they must file this bill in order to have determined their title, so that they may claim the mortgage-money from the bank. This is no ground upon which equitable jurisdiction can be based. The complainants assert a legal title in themselves by the construction which they *536put upon the first limitation over in Jane Sinnickson’s will. There is nothing to prevent them from bringing an ejectment against the person in possession. They must recover, if at all, upon the strength of their own title and not on the weakness of the defendants, and if they show themselves entitled to it they may recover and tender a deed and thereafter sue the bank, averring performance of the conditions of the bond. Or they may, if they choose, tender performance of the conditions required by the bond before establishing their title and sue the bank for the money secured by the mortgage, and in that suit present the question whether they are within a’ class to whom the first limitation over is devised.
In this matter it is neither necessary nor proper that the will of Jane Sinnickson should be construed, nor that a mode of •successful procedure to assert rights claimed under that will should be indicated. It is enough to ascertain that the present suit invites a court of equity to consider and determine between two opposing sets of devisees, both of whom are out of possession, a contest as to the legal title to lands, disconnected from any equitable question whatever. Such a bill cannot be entertained.
For the reasons above stated a decree will be advised sustaining the demurrer, with costs to the demurrants.