Apperson & Co. vs. Ford et al. [DECEMBER case requires its interference." Alton Marine & Fire Insurance Co. vs. Buckmaster, 13 Ill. R., 205. "It is only parties in possession, or who hold some future estate which gives them no right to immediate possession, upon whom any necessity rests of resorting to a court of equity for aid to remove a cloud from their title. But when they have the right to immediate possession, the common law action of ejectment, as it was formerly called, with a trial by jury, is the proper remedy." Ward vs. Dewey, 16 N. Y. R., 529. "Those only who have a clear, legal, and equitable title to land connected with possession, have any right to claim the interference of a court of equity to give them peace or dissipate a cloud on the title." Orton vs. Smith, 18 How., 265. See also Armitage vs. Wickliffe, 12 B. Mon., 494. The reference to authorities is closed with the following extract from Haythorn vs. Motgerem, 3 Halst. Ch. R., 342. "A party in possession may come into this court under proper circumstances, to remove a cloud from his title. But I am not aware that a party out of possession can come here as against another in possession, and claiming title under a deed, and obtaining a decree declaring the defendant's deed void, and putting the complainant in possession and giving him an account of the rents and profits." It is thus apparent upon principle and the authorities cited, that the bill in this case cannot be sustained as a bill to remove a cloud from the title of the plaintiffs. To do so, would open the door of chancery to every case where a plaintiff might assert a claim to land, and aver that the title of the defendant in possession was beclouding his claim, and ask that his title be declared to be the real title, that it be established and quieted, and the possession transferred to it by decree of the court. It is not very plain what is a cloud upon title, in the language of the books, that may be canceled, and the authorities refer to the indefiniteness of the term. Wait vs. Dewey, 16 N. Y. R., 529; Mayor of Brooklyn vs. Miserole, 26 Wend., 137. Nor do the facts of this case require us to enter into an investigation of what may constitute it, or what has been decided to be so in the various TERM, 1861.] Apperson & Co. vs. Ford et al. cases found under this head; but it is plain that when a party may resort to an action of ejectment to test his title, or obtain the possession that belongs to his title, that is a fatal objection to his prosecution by bill for quieting his own title. The foundation of the quia timet jurisdiction of chancery is the apprehension of injury that a party may receive from the assertion of a claim which he has no means of procuring to be tried in the ordinary tribunals of the law. It cannot be admitted that every case of contested title to land at the pleasure of the claimant be brought into a forum, whose special offices are far different from the examination of disputed titles to real estate. It is, however, insisted for the plaintiffs that this question ought not to be discussed, and cannot be considered in this court, since the cases of Ringgold vs. Waggoner, 14 Ark., 69, Shell vs. Martin, 19 Ark., 141, and Mitchell vs. Etter, 22 Ark., 183, are contrary to the conclusion before stated. If, upon examination of these cases, we agree with the counsel of the plaintiffs in what they decide, it will then be in good time to determine whether we shall adhere to erroneous determinations of this court, or declare the law in this case as, upon sound principle and unquestionable authority, we find it to be. In Ringgold vs. Waggoner, the judgment of Ringgold against John Waggoner was declared by this court to be a lien upon the lands in controversy between Ringgold and Burr, and that the only other question in the case was, whether Burr could hold the lands as their bona fide purchaser. The question that has been considered in this case was not considered in Ringgold vs. Waggoner; and that is no conclusion against the conclusion reached in this case. The foundation of Ringgold's title was his judgment lien; and the lands being subject to the lien, could not, of course, be transferred from its operation. On this footing the case was submitted to this court on the part of Ringgold, and was decided on this ground, no argument being made here on behalf of Burr. But it is undeniable that the proper remedy of Ringgold to onforce his lien was, to have invoked the aid of chancery to remove the fraudulent assignment of John Waggoner, and the subsequent conveyance of Edmund Waggoner to Burr, and then to have proceeded to execution and sale of the lands to satisfy his judgment; thus bringing the case within the second class of cases before mentioned, in which chancery acts as an auxiliary to enforce a legal right. But it is enough to say of that case, that it does not conflict with our view of the law as expressed in this case. The general doctrine upon this subject is well expressed in Shell vs. Martin, and would have been applicable to that case, if the bill had shown the possession of the land to have been in the plaintiffs, instead of averring it to be in the defendant. The attention of the court seems to have been called only to the recognition of the jurisdiction of chancery to cancel deeds, which, if left outstanding, would cloud the real title, without reference to the controlling fact that the jurisdiction is exercised to strengthen and protect the title that is connected with actual possession. The general terms used in the opinion affirming the jurisdiction are correct, but the application of the principle to the facts of the case was evidently wrong. The authorities that are cited in Shell vs. Martin only support, in general terms, the jurisdiction of equity to cancel personal obligations and instruments of title; not one of them intimates in terms, nor do the facts imply, that the jurisdiction has been or can be exercised, but to protect title accompanied by possession, except the Chautauque County Bank vs. White, 6 Barb., 605. That was a contest between purchasers at a sheriff's sale as plaintiffs, and the defendant, a purchaser at a sale made by the receiver acting under the direction of a court of chancery. The sale of the receiver was prior in time, and the defendant was in possession under the sale. The bill prayed that the judgment under which the sheriff's sale was had might be decreed to be a lien upon the premises existing when the defendant bought at the sale of the receiver, that the title of the plaintiffs might be declared superior to that of the defendant, and that the defendant should be required to surrender the possession of the premises to the plaintiffs. The vice-chancellor, before whom the case was brought, dismissed the bill, but the Su TERM, 1861.] Apperson & Co. vs. Ford et al. preme Court reversed his decree, and held that the plaintiffs could entertain their bill, on the ground that the deed of the receiver to the defendant was a cloud upon their title, and this is the decision that is cited in Shell vs. Martin, and also in Mitchell vs. Etter. But the decree of the Supreme Court was reversed by the Court of Appeals; and though there were other points in the case, GREDLEY, J., expressly denied the right of the plaintiffs to go into equity to set aside the deed of the defendant as a cloud on their title. Chautauque Co. Bk. vs. White, 2 Seld., 246. An action of ejectment was said by the Judge to afford the proper remedy for the plaintiffs; yet it is but just to say that, in both courts, the fact of the defendant being in possession does not seem to be insisted upon, the Court of Appeals holding that the alleged defect of the defendant's title was apparent upon its face, and that, therefore, there was no need for the plaintifis to ask the aid of equity to cancel the deed of the receiver to the defendant. This is according to the received doctrine that has overruled Hamilton vs. Cummings, 1 John. Ch., so far, and is an express authority that an action of ejectment, instead of a bill to remove clouds, is the remedy to recover land for a plaintiff out of possession. The Circuit Court, in Shell vs. Martin, properly sustained the demurrer to the bill, and this court in reversing its decree, therefore, undoubtedly made a wrong application of a correct principle of law. In Mitchell vs. Etter, no authorities were referred to but what were cited in Shell vs. Martin, but that case itself and any general observations that may be in the opinion, should be confined to the facts of the case under consideration, if they can be so by any rule of reasonable construction. Conway vs. Reyburn, 22 Ark. 293. And upon the facts of the case, in Mitchell vs. Etter, it was rightly decided that the plaintiffs could maintain a bill for cloud of title against the defendants. For the wife of Mitchell held the lands in controversy by a valid title, and though being wild lands, this court therefore considered them not to be in the actual Apperson & Co. vs. Ford et al. [DECEMBER possession of Mrs. Mitchell, before her marriage with Mitchell, or afterwards in the actual possession of Mitchell and wife, yet it does not thereby follow but that the title of Mrs. Mitchell carried with it the possession of the lands. As against third persons, who were intruders upon the lands, the title would draw to it a constructive possession that would enable Mitchell and wife to maintain ejectment, or tresspass; and the claim of the defendants as purchasers at a tax sale, like that of purchasers of sheriffs and offi. cers that make compulsory sales of lands, does not attach to itself a constructive possession. Crutsinger vs. Catron, 10 Humph. 27, 28. Such persons must prove possession by possessory acts; it will not, as in ordinary cases of ownership, be presumed to be with the title. Mitchell and wife, though not in actual occupancy of the lands, might be construed to be in possession of them, and could not then maintain ejectment, and could, as in possession, file their bill to cancel a tax deed of the defendants as a cloud upon Mrs. Mitchell's title. The distinction between occupation, or what this court, in Mitchell vs. Etter, and in Fowler vs. Keatts, 22 Ark. 487, termed actual possession, is noticed by SELDEN J., in Ward vs. Dewey, 16 N. Y. R. 531, who says that there is a distinction between occupation and possession, and that there may be a legal or constructive possession where there is no actual occupation. Or without distinction between occupation and possession, or between actual and constructive possession; and taking neither party in Mitchell vs. Etter, to have been in any sort of possession, then Mitchell and wife were without remedy at law, and without any means to test the opposing title of the defendants, but by complaining of it in chancery, as a cloud upon their title, and that fact alone would give jurisdiction. Mattingley vs. Corbit, 7 B. M. 376. Hence, it follows, that in any state of the case, Mitchell and Etter is well sustained upon principle, its decision not being inconsistent with the principle adopted in this case, though some general observations of the opinion are more accordant with Shell vs. Martin than with this case, owing to the lead of that |