majority">DOWDELL, J.

— The bill in this case is for the purpose of removing a cloud from complainants’. title to the land described. The appeal is taken from a decree of the chancellor overruling the respondents demurrers *72to the bill and motion to dismiss the same for want of equity. The facts alleged in the bill are to be taken as confessed, both on the demurrers and the motion to dismiss for want of equity.

The land described in the bill is a part of a sixteenth section. The court judicially.knows that the title to all sixteenth sections by act of Congress was vested in the state for school purposes, and that by an act of the Legislature of January 15, 1828 .(Aiken’s Dig. pp. 378-383), the school commissioners had the authority to survey and plat into lots, and sell the lots, of this sixteenth section. —Long & Long v. Brown, 4 Ala. 622; Roberts v. Mathews, 137 Ala. 523, 34 South. 624, 97 Am. St. Rep. 56.

The deed charged to be a cloud on the complainants title is on its face regular and valid. The bill shows a complete chain of paper title reaching back from this deed to the government. Unquestionably the introduction in evidence, in an action of ejectment, by the respondent against the complainant, of such evidence of title, would, without more, make a prima facie case in favor of the respondent that would put the complainant to proof of his true ownership in order to defeat a recovery. Whenever such is the case, the true owner being in possession, he has a right to come into a court of equity to remove the cloud.

It is no answer to such a bill to say that the complain- - ant could defeat an action of ejectment brought by the respondent. The test is not whether the true, owner might be able to defend successfully against an ejectment suit, but would he be put to extraneous evidence in order to do so? The averments of the bill give it equity, and it was not subject to either the motion to dismiss nor to the demurrer of the respondent Allen A. Greene. >!'.

*73We are of the opinion that Onita A Greene, the wife of the respondent Allen A. Greene, is neither a necessary nor. a proper party defendant. As stated by counsel for complainants, she was made a party defendant upon the theory that, being the wife of the defendant Allen A. Greene, the grantee in the deed which is alleged to constitute the cloud on complainants, title, she had an inchoate dower interest.. If the deed claimed to be a cloud is in fact no more than a cloud, we are unable to see how any right of dower could arise out of it against the true owner. No demurrer, however, for a misjoinder of the wife as a defendant, was filed to the bill.

The decree of the chancellor on the motion and demurrers is free from error.

Affirmed.

Tyson, C. J., and Haralson and Simpson, JJ., concur.

Citation profile

Relationships

How this case has been treated — in progress