6 FEDERAL REPORTER.
John M. Moore, for plaintiff.
Clark if Williams, for defendant.
CALDWELL,_J._ This is a suit in equity to remove a cloud from the
plaintiffs title to the real estate described in the bill. The bill al-
leges that the plaintiff is the owner in fee-simple of the land; sets
forth how heacquired it, and exhibits his muniments of title; alleges
that the land is unoccupied; that the defendant claims title by vir-
tue of a deed from the state land commissioner, which invests him
with the apparent legal title, but that, in fact, said deed conveyed no
title, the state having none to convey; that the only pretense of claim
the state had to the land was that it was struck off to the state at the
sale of delinquent lands for the taxes of 1876 in the county of Sa-
line, and that, at the expiration of the time allowed by law for the
redemptiontof lands sold for taxes, the clerk of said county executed
a deed to the state; that the said tax sale, and the deed made to the
state in pursuance thereof, are void, because tl1e assessor of said
county, for the year 1876, did not, at the time he returned his assess-
ment to the clerk, nor at any time, take and subscribe the oath re-
_ quired by section 5112, Gantt, Dig.; and because the clerk of the
county, at the time he made out and delivered the tax-book of the
, county, for said year, to the collector, did not attach thereto "under
his hand and the seal of his office," his warrant authorizing said col-
lector to collect such taxes as required by section 5139, Gantt, Dig.,
and that no warrant was issued to the collector at any time, or in
` any form, authorizing him to collect the taxes of that year. The bill
contains the usual allegations as to the injurious effects of this cloud
upon the plaintiffs title, and an appropriate prayer for relief. The
proof supports the allegations of the bill, leaving only questions of
law ’to be determined.
The first contention of the defendant is that courts of equity have
, no jurisdiction to entertain a bill to remove a cloud from title at the
suit of the holder of the legal title, unless he is in actual possession
of the land. It is the established doctrine of the supreme court of
_ this state that a court of equity has jurisdiction of a suit to remove
a cloud from title to land when the claim or lien which constitutes
the cloud purports on its face to be valid, and the defect in it can be
made to appear only by extrinsic evidence, and there is no adequate
remedy at law.
In the application of the principle thus generally stated, that
court holds the jurisdiction exists when the plaintiff is the holder of '
· the legal title and in the possession of the land, or the land is unoc-
cupied, and that when the plaintiffs title is equitable, or a junior
legal title with prior and superior equities, the jurisdiction exists
without regard to the question of occupation or possession. Mitchell
v. Etter, 22 Ark. 178; Apperson v. Forcl, 23 Ark. 746; Branch v.
lllitchell, 24 Ark. 431; Byers v. Danlcy, 27 Ark. 77, 96; Mriller v.
Neiman, Id. 233; Chaplin v. Holmes, Id. 414; Sale v. McLean, 29