Helden v. Hellen

Briscoe, J., delivered the opinion of the Court. The appeal in this case is from an order sustaining a demurrer to -a bill in equity. The bill charges that the appellant obtained by deed from Dr. Charles A. Wells and Mrs. Wells, on the 4th of January, 1894, a tract of land situate in Prince George’s County, containing 129 acres ; that Dr. Wells previously purchased the land at sheriff's sale, at the suit of himself against one Thomas A. Mitchell, and on the 27th of June, 1892,obtained the sheriff’s deed; that Mitchell, on the 21st of March, 1890, being on that date indebted unto the appellant’s grantor, executed an intrument of writing purporting to be a deed of trust, and professing to convey unto Wm F. Hellen, one of the appellees, this tract of land, together with other lands, to secure to one William W. Hall an indebtedness of seven thousand dollars, covered by six promissory notes from. Mitchell to Hall.

It further charges that Mitchell was never indebted to Hall in the sum set forth in the pretended deed of trust, or in any other sum; that .the deed of trust is without consideration, was made in prejudice of subsisting creditors, is fraudulent, void, and operates as a cloud upon the appellant’s title. The bill then prays that the deed-of trust be annulled and set aside; that the notes secured by the deed decreed to be brought in and cancelled; that the cloud upon his title to the land be removed, and concludes with a prayer for general relief. And to this bill a demurrer was interposed, which was sustained by the Court, ánd the bill dismissed. ⁶²⁰ The question, then, presented for our consideration, is whether the plaintiff has presented such a case by the bill as entitles him to the relief he seeks. It is manifest that the appellant is not entitled to invoke the jurisdiction of a Court of Equity for “ the quieting of title and the removal of a cloud therefrom,” because his bill fails to allege that the plaintiff was in the possession of the property at the time the bill was filed; it being well settled in this State, as a general rule, that the jurisdiction of a Court of Equity cannot be maintained to remove a cloud from title unless the party has the legal title and the possession.

If the possession is in another, his remedy is by an action of ejectment. Crook v. Brown, 11 Md. 158 ; McCoy v. Johnson, 70 Md. 490 ; Livingston v. Hall, 73 Md. 386 . And the case of Steuart v. Meyer et al., 54 Md. 454 , relied upon by the appellant, is not in conflict with this rule as applicable to a case like the one here presented. Textor v. Shipley, 77 Md. 479 .

Nor can there be any question that a creditor who has pursued his remedy at law by an ineffectual execution on his judgment, can invoke the aid of a Court of Equity to have fraudulent conveyances standing in his way and covering up the property, set aside and vacated. This relief is fully established by authority. Trego et al. v. Skinner et