*271ON APPLICATION FOE REHEARING.
TYSON, J.On a re-examination of the question presented by this record, we have reached the conclusion that the bill is without equity.
On the facts averred, every matter invoked by complainant as. a ground for equitable interference by injunction is available to him as a defense to the action of ejectment. It is true that, in that- action the court, in which it is pending, is impotent to cancel the deed, upon which the plaintiff relies for a recovery, as a cloud upon complainant’s title. But that court has jurisdiction,, and is in the legitimate exercise of it, to determine the validity of that deed and to adjudge the matter of controversy respecting the title to the land. And on the question of title the plaintiffs in that action, who are respondents to the bill, are entitled to a trial by-jury and cannot be'deprived of it where the defendant’s defenses are cognizable in a court of law, as here, by preventing the exercise of the jurisdiction first obtained and transferring the adjudication of that question to the chancery court, as is attempted to be done. Should the complainant successfully defend the action of ejectment, he may then invoke the powers of the chancery court to cancel' the deed as a cloud upon his title, or if no action had been instituted against him to test his title, he would be entitled to maintain such a bill. But after the action has been begun, his defenses being legal in contradistinction to being equitable, he will not be permitted to oust the jurisdiction of the law court or to prevent its exercise.
The case of Lehman v. Shook, 69 Ala. 492, is not an authority against this view. It is true that in that case Chief Justice Brictcell expressed the opinion broadly, without regard to the question of jurisdiction on the ground of fraud, that a bill, such as this, was maintainable, but neither of the judges agreed with him. It is also true that in that case the equity of the bill was sustained. But Justice Somerville, adhering to the views expressed by him in his dissenting opinion in Smith v. Cockrell, (66 Ala. 64), concurred in the conclusion, solely on the ground that the court had jurisdiction on account of the *272fraud alleged. 'Justice Stone, in an able dissenting opinion, held that the hill was wanting in equity.
We think he was right and refer to what he there said as satosfactorily expressing our views, and we adopt his opinion as a correct exposition of the law. See also Normant v. Eureka Company, 98 Ala. 181; Womacks v. Powers, 50 Ala. 5; 3 Brick. Dig., § 223 p. 346; Holt v. Pickett, 111 Ala. 362.
The decree must be reversed and the bill dismissed. Reversed and rendered.
McClellan, C. J., Dowdell, Simpson, Anderson and Denson, J.J., concurring. Haralson, J., adheres to his opinion.