The bill is one to remove cloud from title to land. The bill in some of its stating parts, however, does follow the language used in the statutes (Code, § 5444 et seq.) to quiet and determine title; and this probably misled the trial judge into treating it purely as a statutory bill to quiet and determine title. It is very true that under a statutory bill filed under these statutes, relief may be granted by canceling deeds or conveyances as clouds on title, as incident to complete relief; but the statutes do not take away the jurisdiction of equity, to remove cloud from title, which equity had prior to their passage. It has been held by this court that our statute to quiet title is remedial, and that a statutory bill may be amended so as to afford relief by way of removing cloud from title.
Where the bill was originally filed as a bill to quiet title strictly under the statute, it may be amended by adding averments seeking relief from an alleged void mortgage constituting respondent's claim to the property. State Land Co. v. Mitchell, 162 Ala. 469, 50 So. 117.
"The scope and prayer of the bill was properly extended by amendment so as to cancel a cloud on title, and the amended bill was in all things sufficient to support the prayer for relief, and the decree which was rendered." Smith v. Gordon,136 Ala. 497, 34 So. 838; Fowler v. Alabama Iron Steel Co., 154 Ala. 497, 45 So. 637; Shipman v. Furniss, 69 Ala. 555, 44 Am. Rep., 528.
"Independent of our statute for the quieting of titles and the determination of claims to real estate (Code, § 5443 et seq.), courts of equity have jurisdiction to cancel and remove a specially described cloud upon the complainant's title, when the owner is in possession, and when the evidence of the alleged cloud is not void on its face, and extrinsic evidence is necessary to show its invalidity." Pom. Eq. 1399; Chambers v. Ringstaff, 69 Ala. 145; Daniel v. Stewart, 55 Ala. 278; Plant v. Barclay, 56 Ala. 561; Bank of Henry v. Elkins,165 Ala. 628, 51 So. 821; King Lumber Co. v. Spranger, 176 Ala. 566,58 So. 920.
"The rule is well established that a court of equity will not entertain a bill to remove a cloud from the title to land in favor of a person asserting a legal right when he is not in possession, unless he shows some special equity; that is, some obstacle or impediment which would prevent or embarrass the assertion of his rights at law." 3 Mayf. Dig. 197.
In alleging facts to show possession on the the part of complainant he followed the language used in the statute, and this, no doubt, led the trial judge to treat the bill primarily as one to quiet and determine title, and to hold it defective in not seeking to have the defendant state the nature and character of his claim or title.
The theory of the bill is that the respondent has no title, but that an instrument has been recorded which purports to carry title, and therefore constitutes a cloud on complainant's title, and the bill seeks to have the cloud removed by a court of equity; that the instrument sought to be canceled as a cloud is void, in that it was never fully executed by the grantor; that is, that it was never delivered. There are some allegations in the bill, as to a recited payment of a money consideration; and other allegations, to the effect that such was not paid, and that the real consideration was that the grantee would support and maintain the grantor; but these averments do not affect the equity of the whole bill. It is true that complainant may encounter trouble when it comes to the proof of these allegations if he should seek to thus vary the consideration by parol proof; such as was pointed out by this court in the case of Ohmer v. Boyer, 89 Ala. 273, 7 So. 663. The difficulty will be one of proof and not of pleading.
The bill on its face contains equity, as one to remove cloud from title, and as such was not subject to any ground of demurrer interposed. The decree sustaining the demurrer is reversed; and a decree is here rendered overruling the demurrer.
Reversed, rendered, and remanded.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.