¶1 concurring.- I concur in the affirmance of the judgment.
¶2 The genera! rule is stated in Pollitzer v. Beinkempen, 76 S. C., 517, 520;: “The claimant of the legal title of Hand oan not maintain an action to remove a cloud from bis title unless he is in possession. His remedy is to bring his action on the law sid'e of the court to recover possession, and thus test the title; for his adversary in .possession is entitled to a trial by jury oni the question of the title and right of possession.” But the 'application of the rule does not aid the appelant. The allegation of ownership, in fee simple carries ‘with it the allegation of possession, for the possession is presumed' to follow the legal title. Code of Procedure, Secs. 99 and 101; Love v. Turner, 71 S. C., 330, 51 S. E., 101.
¶3 Besides, the complaint is to relieve the plaintiff from hardship and injustice which m|ay result to1 him from mistake, and is, therefore, purely equitable. In Pollitzer v. Beinkempen, no question of fraud or mistake or matter of special equitable .cognizance was involved, and the rule therein stated is not inconsistent with the still, more general rule that anybody whose interests are involved has a right to the equitable relief of having; a paper apparently valid set aside for fraud or mistake. The right to such’ equitable relief does not depend on possession' or any other particular relation to the property involved, but the relief falls, under the general jurisdiction of the courts of equity to relieve any one whose interest are affected against fraud or mistake. DuPont v. DuBos, 33 S. C., 389, 11 S. E., 1073; Miller v. Hughes, 33 S;. C., 541, 12 S. E., 419; Sires v. Sires, 43 S. C., 266, 21 S. E., 115; DuBose v. Kell, 76 S. C., 313.