
    BAILISS JONES v. SAMUEL SNAPP ET AL.
    (S. C., Thomp. Cas., 82-83.)
    Knoxville,
    September Term, 1851.
    1. EQUITY JURISDICTION. For injury to legal title, when.
    The owner of the equitable title cannot maintain a bill against a person holding under a void outstanding' legal title and digging' ore on the land, to remove such title as a cloud, and to stop the injury which is to the legal and not to the equitable title, unless the owner of the true legal title refuses to unite with him in an action to enforce the legal remedy. [Ross v. Young, 5 Sneed, 627, 630; Estill v. Deckerd, 4 Bax., 517; Hoyal v. Bryson, 6 Heis., 139. But see Shannon v. Erwin, 11 Heis., 337.]
    2. SAME. Bill to remove cloud upon title, when.
    A hill to remove a cloud upon title lies only where there is no remedy at law, for want of an act of possession by the defendant injurious to complainant for which a suit at law would lie — as, where the defendant holds a colorable title to land in the possession of complainant bad in fact, but'which may, at some future time, when the evidence is lost, embarrass complainant’s right. [A bill to remove cloud upon title by canceling' a void or voidable deed, will be maintained where the defendants are in possession, and complainants have the legal title, and might sue at law for the recovery of the land, that not being- esteemed adequate relief. Almony v. I-Iiclcs, 3 Head, 42; Johnson v. Cooper, 3 Yer., 530-532; Jones v. Perry, 10 Yer., 83; McMinn v. Richmonds, 6 Yer., 9; Anderson v. Talbot, 1 Heis., 410; Williams v. Talliaferro, 1 Cold., 38; Bock v. Williams, 10 Heis., 277; Thompson v. Mebane, 4 I-Ieis., 370; Coal Creek, etc., Co. v. Ross, 12 Lea, 8; Róss v. Scott, 15 Lea, 489; Cantrell v. County of Davidson, 3 Tenn. Chy., 431. Bill will lie to remove as clouds upon title unsatisfied mortgage which has been paid off, or a deed made without authority (Carter v. Taylor, á Head, 30, 35), a deed where complainant is owner by resulting trust contrary to the deed (Butler v. Rutledge, 2 Cold., 4, 12). Complainant mast show g-oocl title in himself before he can ask removal of clouds from his title. Ross v. Young-, 5 Sneed, 630; Iioyal v. Bryson, 6 Iieis., 141; Coal Creek Mining 6 Mfg. Co. v. Ross, 12 Lea, 4.]
    3. LAND LAW. Second g-rant void, when.
    Where land is once legally granted by the State, a subsequent grant for the same land is a nullity. [Where the State had no title to or property in the land granted [as where it had already granted the land] its g-rant is void. Curie v. Barrel, 2 Sneed, 66; Calloway v. Hopkins, 11 Heis., 376.]
    The case is stated in the opinion of the court:
   Totten, J.:

We have not been able to' rest this case upon any satisfactory ground of equity jurisdiction.

The objects of the bill are to declare the title- of the defendant, W. P. House, avoid title, and to enjoin him from digging ore upon the premises in dispute.

The land was originally’granted in 1811; and by several mesne conveyances and covenants to convey, the equitable title was vested in one Brobson, who conveyed to one George House in 1815. In 1826 George House entered the land in the name of his son, W. P. House, and in 1836, obtained a grant of the land, and held it from that time, as he had previously done, by digging ore upon it.

In 1S40, the defendant George House sold the land to the complainant, and when the sale was made, the defendant, W. P. House, stood by and made no objections 1x> the transaction, and set up no claim to the land, though cognizant of all the negotiations as to the sale. Nevertheless the defendant W. P. House has since sold to the defendant Snapp, who is now digging ore upon the land.

The owners of the- legal title are made- parties defendant by the bill, and the prayer is for general relief alone.

In this case the injury is to the legal, and not to the equitable title. The complainant has only an equity in the lands; but the owner of the legal title may unite with him in an action to enforce the. legal remedy,-and it must appear that he has refused to> do so. before a bill of this character can be maintained.

Nor is this a case to remove a cloud upon title. That is in the nature of a bill quia timet, and lies only where there is no remedy at law, for want of an act of possession by the other party, injurious to the complainant, for which a suit at law would lie. As, if one being in possession under a good title, another holds a colorable title to his lands, bad in fact, but which may at some future time, when evidence is lost, embarrass his right, but does no act for which an action at law would lie, the former may file a bill to remove the cloud upon his title.

The grant to W. P. House issuing in 1836, after the anterior grant of 1811, was a nullity.  