
    Daniel v. Stewart.
    
      BiV in Equity for Cancellation of Deed as Cloud on Title.
    
    1. When deed will he cancelled, as cloud on title. —A court of equity will not interfere to cancel a deed, as a cloud on the title to land, when it is void on its face ; but, if extrinsic evidence is necessary to show its invalidity, although it may be void in fact, it is a cloud on the title, and a court of equity will cancel it.
    2. When married, woman can not come into equity. — A married woman, having an adequate remedy at law, by action in her own name, to recover the possession of lands belonging to her statutory separate estate (K. 0. § 2525), can not maintain a bill in chancery for that purpose, in the absence of fraud, or other circumstances of equitable cognizance. (Overruling Barclay v. Plant & Co., 50 Ala. 509.)
    3. Who may fie hill to remove cloud on title. — A bill in equity, to remove a cloud on the title to land, can only be maintained by a person who is in possession : if the land is adversely held under color of title by another person, the complainant must first recover the possession in an action at law.
    Appeal from the Chancery Court of Butler.
    Heard before the Hon. Adam: C. Eelder.
    The bill in this case was filed on the 23d March, 1871, by Mrs. Phoebe Ann Stewart, suing. by her husband and next Mend, against John W. Daniel, to recover the possession of a tract of land, which the complainant claimed as belonging to her statutory separate estate, and wMch was in the possession of said Daniel, who claimed title under a deed ese-euted to Mm by tbe complainant in 1863; also, for an account of tbe rents and profits, and tbe-cancellation of tbe said deed, as a cloud on tbe complainant’s title. Tbe bill was after-wards amended, by bringing in as defendants several persons to whom said Daniel bad sold and conveyed parts of tbe land. On final bearing, on pleadings and proof, tbe chancellor rendered a decree for tbe complainant; and this decree is now assigned as error by tbe defendants.
    HERBERT & Buell, for appellants. —
    1. A bill to remove a cloud on tbe title to land lies only in favor of a party wbo is in possession. — Burton v. Gleason, 56 Ill. 25; Barroio v. Bobbins, 22 Mieb. 35; Orton v. Smith, 18 How. U. S. 265; Mun-son v. Munson, 28 Conn. 582; Herrington v. Williams, 3 Texas, 448; Apperson v. Ford, 23 Ark. 740; Eldridge v. Smith, 34 Vermont, 484; Blachwood v. VanVket, 11 Mich. 252; 31 Miss. 333; Oroft v. Merrill, 14 N. Y. 456; Smith v. McGonnell, 17 Ill. 135; Alton (M. & T.) Insurance Go. v. Buclcmaster, 13 Ill. 201; Nevin v. Belhnap, 2 Johns. 537; Harris v. Smith, 2 Dana, 10.
    2. The complainant’s deed to tbe defendant, under tbe allegations of her bill, is absolutely void.— Warfield v. Bavesies, 38 Ala. 518; Alexander v. Saulsbury, 37 Ala. 375; O’Neal v. Bobinson, 45 Ala. 531. Hence, her remedy at law was adequate and complete. — Bev. Code, § 2525. Hence, also, it is no cloud on her title.
    3. Tbe complainant should have offered to do equity, by refunding tbe purchase-money which she bad received. — ■ Adams v. Oastle, 30 Conn. 404; Hatch v. Qazm, 7 Texas, 60; Martin’s Heirs v. Tenison, 26 Ala. 738.
    Watts & Watts, contra. —
    1. Tbe complainant’s deed to Daniel is not void on its face, and, consequently, is a cloud on her title. — 2 Story’s Equity, §§ 699, 700, 700a. But courts of equity now take jurisdiction to cancel deeds, even when they are void on their face. — Smith v. Pearson, 24 Ala. 355; Posey v. Oonway, 10 Ala. 811; M. & G. Bailroad Go. v. Pee-bles, 47 Ala. 317; Martin v. Heioitt, 44 Ala. 418; Piersol v. Elliot, 6 Peters, 95; Burt v. Oassity, 12 Ala. 740; 1 John. Oh. 517.
    2. Tbe complainant might maintain tMs suit without having possession of tbe land. — Burden v. Stein, 27 Ala. 112; Barclay v. Plant, 50 Ala. 509; Petit v. Shepherd, 5 Paige, 501; Wright & Bice v. Moore, 38 Ala. 599.
    3. It was not necessary that tbe complainant should offer to repay what she bad received under tbe deed. Tbe defendants did not ask it, and they bad received tbe rents and profits of tbe land.
   MANNING, J.

Appellee, wbo was complainant below, purchased in 1858, in ber then name of Phoebe Ann Wood, a parcel of land in Butler county. In 1861, sbe was married to one Stewart, ber next friend in this cause; and during bis absence in tbe army, in 1863, sbe sold tbe land, and executed a deed of it by tbe name in which it was conveyed to her— Pboebe Ann Wood — -to defendant Daniel, wbo sold portions of it to tbe other defendants. Daniel received possession of the land, and has bad it, be and those to whom be sold, ever since. Tbe bill, filed by appellee, prays that tbe deed, being void, because the act of a married woman conveying ber statutory separate estate, without ber husband joining ber in it, be decreed to be cancelled as a cloud upon ber title; and for tbe recovery of tbe land, and rents for tbe use and occupation of it, and for general relief. It is not averred in tbe bill, nor proved, that the price paid for it, though in “Confederate currency,” was inadequate, or that any fraud was practiced in tbe transaction.

Tbe objection of appellant — tbe deed being absolutely void, according to tbe allegations of tbe bill, therefore a court of chancery will not interfere to cancel it as a cloud upon complainant’s title — is not well taken. This is tbe rule, only when tbe deed thus assailed is void on its face, and no evidence outside of it, which might be lost or obscured by time, needs to be produced to establish its validity. — 2 Story’s Eq. Jur. § 700a; Rhea v. Longstreet & Sedgwick, 54 Ala. 291.

In this case, tbe deed does not contain any defect apparent therein. It was executed by ber with tbe name by which sbe is designated as tbe grantee in tbe instrument conveying tbe land to ber, without any indication that sbe is a married woman. This fact has to be proved by evidence dehors tbe deed.

If, however, tbe deed is void as alleged, tbe statute gives to complainant, notwithstanding ber coverture, and in ber own name, an action at law for tbe recovery of tbe land, it being of tbe corpus of ber statutory separate estate.' — Rev. Code, § 2525 (2131); Pickens v. Oliver, 38 Ala. p. 377. And tbe Circuit Court was tbe proper forum for, and a trial by jury tbe fit mode of determining, a suit to obtain possession. No fraud being charged against any of defendants, there is no allegation on which to maintain tbe right to come into equity, except that complainant is a married woman, or that tbe existence of tbe deed is a cloud upon ber title,

"When matters, wbicb, on account of tbeir peculiar nature, or circumstances, or complications, have been witbin tbe exclusive jurisdiction of a court of equity, are afterwards by statute made cognizable in a court of common law, it bas often been beld, that tbe jurisdiction of a court of equity was not thereby taken away; but that tbe parties interested might still, if they elected to do so, resort to that tribunal. These, though, were cases in which the jurisdiction pertained to a court of equity, by reason of the nature of the subject, or of the questions involved in the litigation. The only reason why a married woman could not sue alone, in an action at law, was of a nature entirely personal. By the common law, her existence was considered merged in that of her husband, and she was not recognized as sui juris. Consequently, when she had an interest distinct and separate from that of her husband, or adverse to his, it was only in a court of equity she could obtain protection. This it was that gave her a right of access to that court. Even then, however, she could not sue in equity, to obtain possession of land of which the legal title was in her. The husband, on account of his right to the possession and use of her real estate, and she from the fact that the title was in her, must sue as joint plaintiffs in an action at law. There was no jurisdiction of such a case in a court of equity. It follows, that when the statute prevented the common-law marital right of the husband from attaching to her land, and made it her statutory separate estate, and conferred upon her at the same time the right — in fact required her — to sue alone when necessary to recover the corpus of such estate, chancery did not acquire jurisdiction of a suit by her to obtain the possession from a third person who wrongfully withheld it. All the questions in such a suit were cognizable at law. So much of the opinion in Barclay v. Plant (50 Ala. 509), as maintains the contrary of this, has not our assent.

In respect to a bill to remove a cloud upon the title, a court of equity will not entertain it, while the defendant is in adverse possession of the land with color of title. The complainant in this suit must first recover at law the possession she delivered at the time she undertook to sell the property to defendant Daniel. It is only in favor of a person in possession, who consequently can not bring an action at law, by which he can have an adjudication of the apparent title of his adversary, that an appeal to equity is allowable, upon the averment that the existence of the instrument creates a cloud upon his title.

The decree of the court below must be reversed, and the bill be here dismissed.  