#### Alfred Ladner *v.*Sylvan Ladner.

Chancery Practice — Removal of Clouds from Title — Decree.

Where a complainant seeks to cancel a patent issued to the defendant in the bill to certain land described therein as a cloud on his title a decree which cancels the patent is too broad when it is shown that the complainant only had title to an undivided two-thirds interest in the land.

Sylvan Ladner filed the bill in this case in the Chancery Court of Harrison county against Alfred Ladner, in which he charges that he had purchased the lands described in the bill on September 22, 1877, from Jalouse Whitfield and Helion Whitfield and W. A. Whitfield, guardian of W. W. Post and V. M. Post, minor heirs of Irene Whitfield; that it was swamp and overflowed lands which they had purchased from the authorities of Harrison county in 1859, and that they delivered to complainant their certificates of said land, which were presented to the swamp land commissioner, who issued a patent for same on November 12, 1877, to complainant; that the defendant, Alfred Ladner, on the 10th of *608April, 1877, made application to tbe swamp land commissioner to enter said land, and by false representations tbat tbe land was still vacant procured a patent from tbe State to said land; tbat wben complainant presented bis certificates to tbe said swamp land commissioner be informed defendant tbat bis patent was issued by mistake and requested bim to return it for cancellation; tbat this patent is a cloud on complainant’s title; tbat tbe said defendant bad instituted suit in a justice of tbe peace court to recover tbe sum of $150 damages for cutting’ forty trees on said land, and tbe cause bad been tried in tbat court, resulting in a judgment for complainant, but defendant bad appealed from tbat judgment to tbe Circuit Court and would introduce tbe said patent in evidence in that court unless restrained. Tbe prayer was for tbe cancellation of tbe patent and for a writ of injunction restraining defendant from using bis said patent as evidence in said trial. Defendant answered tbe bill denying tbat be procured tbe patent by false and fraudulent representations and setting up a claim by adverse possession for more than ten years. On tbe bearing it developed tbat complainant only bad an undivided two-thirds interest in tbe land. From a decree granting the relief sought in tbe bill defendant appeals.

Appealed from Chancery Court, Harrison county, Geo. Wood, Chancellor.

Reversed and remanded,

February 27, 1881.

*Attorney for*appellant, *B. Seal.*

*Attorneys for*appellee, *Ghamplm & Henderson.*

Brief of R. Seal:

Tbe demurrer filed by defendant to complainant’s said bill should have been dismissed; because under, tbe statute upon which tbe proceedings were bad, the complainant must show by his bill and exhibits tbat be bad, first, a clear legal title, or, second, a complete, equitable title. Tbe bill charges tbat be bad both a legal and equitable title. Now, if he bad tbe legal title, be certainly did not have an equitable title; and if be bad a clear equitable title be’ then bad no legal title.

*609The court is referred to the following authorities: 51 Miss. 166; 51 Miss. 789; 47 Miss. 144.

Complainant’s exhibit “A,” which is part of this bill, shows that W. "W. Post and V. M. Post were the minor heirs of Irene Whitfield Post, two of the vendors to complainant, and no authority for making said deed, so far as the interest of these minors is concerned. It is made without any order or decree of any court’s authority; the sale or conveyance of their interest is therefore void, and the title is still in them.

If the complainant had either the legal or equitable title, it was only to one-half — that is, the right of Helen, of Shelly Whitfield, and James St. L. Whitfield. There is surely a failure to show a clear legal or equitable title to the interest of these minors.

W. A. Whitfield signed the deed in the double capacity of trustee and guardian; he could not have been both, and this fact is evident that he was in doubt. He cannot ask under this bill to have the cloud removed from his title to the whole tract of land, when he owned a part only.

The final decree should have been in favor of defendant, because the testimony shows clearly that W. W. Post and V. M. Post were minors, and that W. A. Whitfield had not been appointed guardian of said minors. And for that reason , he had no authority to .make and convey the interest of these minors to complainant; and as to the question of fraud, it was practiced on appellant by the said W. A. Whitfield, who informed him that he had no title to said section 4 described in said bill.

It is clear from the evidence in this case that the said complainant was a speculator, and trying to get the advantage of defendant he entered into a written agreement with his vendors on the 22nd of September, 1877, the same day he obtained his deed, to the effect that if other parties, not known to the conveyance, had built homes and had settled upon portions of said land, and though without legal title may be injured by said sale, and for the sake of good neighborship, and for the sum of 50 cents per acre, and the proportionate part of the expenses of a survey, the said Ladner, complainant, was to convey in *fee-simple*to such party as had built, etc. Sylvan Ladner, complainant, without calling upon defendant, asking for a portion of the expenses of the survey, or tendering a deed, goes into possession by force (he was out of possession) and commenced cutting timber on said land so built on.

*610The court is referred to this agreement. He has no claim to equitable relief unless he was willing to do equity. Now, if he had any remedy it was at law. The statutes were not intended to enlarge the powers of equity, or draw from the Circuit Courts the jurisdiction to try action of ejectment. 4 See 47 Miss. 395; 49 Miss. 229.

In this proceeding the Chancery Court will neither try legal or doubtful titles. I respectfully ask that this case be reversed and the bill dismissed.

Brief for appellee is not found in the record.

*Opinion.*

Per *curiam:*

The decree is too broad in that it cancels the patent issued to the appellant, whereas the appellee has no valid claim to more than an undivided two-thirds interest in the land. In order to correct this error and limit the decree to the right of the complainant in the bill, the decree will be reversed and the cause remanded for a decree below in accordance with this view.

The patent should be ordered to be cancelled and the appellant be enjoined from using or attempting to use it as to an undivided two-thirds interest in the land described.

*Reversed and remanded.*

1

Equity will, by injunction,- prevent a cloud on title by execution or judicial sale. Irwin v. Lewis, 50 Miss. 363; Christian *v.*O’Neal, 46 Miss. 659.

A conveyance by one tenant in common purporting to convey the whole estate, passes only his interest. (Code 1857, art. 7, p. 307.) His co-tenants may maintain a bill to cancel the conveyance as a cloud upon their interests. Williams *v.*Tucker, 47 Miss. 678.

Complainant is required to show that he is the legal or equitable owner of the land. If he does not do this, and his title is denied, he will fail, regardless of the defendant’s title. Walton *v.*Tusten, 49 Miss. 569; Handy *v.*Noonan, 51 Miss. 412; Griffin *v.*Harrison, 52 Miss. 824; Hart *v.*Bloomfield, 66 Miss. 100, 5 So. 620; Chiles *v.*Gallagher, 67 Miss. 413, 7 So. 208; Soria *v.*Stowe, 66 Miss. 615, 6 So. 317; Bank *v.*West, 67 Miss. 729, 7 So. 513; Ricks *v.*Baskett, 68 Miss. 250, 8 So. 514; Wilkerson *v.*Hiller, 71 Miss. 678, 14 So. 442; Pierce *v.*Hunter, 73 Miss. 754, 19 So. 660.

In an action to quiet title, where complainant’s title is put in issue, she must aver and prove that she is the owner of the property, either by a good legal or equitable title. Chiles *v.*Champenois, 69 Miss. 603, 13 So. 840.

In a suit to remove a cloud on title, the burden is on plaintiff to establish that he.himself has a perfect legal or equitable title. Stevens Lumber Co. v. Hughes, 38 So. 769.