#### Jackson v. Frazier.

Opinion delivered November 21, 1927.

*423 John II. Caldwell, for appellant.

Sidney Kelley and McCaleb & McCaleb, for appellee.

Hart, C. J.,

(after stating the facts). The decision of the chancellor was correct.

*424This court has held that equity jurisdiction to quiet title, independent of statute, can only be invoked by a plaintiff in possession holding the legal title. The reason is that, where the title is a purely legal one, and some one else is in possession, the remedy at law is plain, adequate and complete, and an action by ejectment cannot be maintained under the guise of a suit to quiet title. In such cases the party in possession has a constitutional right to a trial by jury. Pearman v. Pearman, 144 Ark. 528, 222 S. W. 1064; Gibbs v. Bates, 150 Ark. 344, 234 S. W. 175; and Simmons v. Turner, 171 Ark. 96, 283 S. W. 47.

These cases also hold that our statute relating to actions to quiet title have not changed the rule. These and many other cases decided b}r this court hold that possession in fact, as distinguished from that constructive possession which arises simply in virtue of leg’al title, is essential to proceedings under which suit is brought to quiet title. The reason is that the original jurisdiction of equity and our statutes on the subject were designed to afford relief to a class of persons who, being in peaceable possession of a tract of land, had no means of clearing their title to it by suit in due course of law. Where some one else is in actual possession of the land to which the title is sought to be quieted, it is evident that there is an adequate remedy at law. Hence in such cases the party will be left to his legal remedy.

It is true that, in the case at bar, the plaintiff claims to hold the legal title to the strip of land in controversy because of an agreement between herself and the then owners of lot 3, and she claims to have possession of the disputed strip of land by virtue of her possession of the rest of the land owned by her in the same forty-acre tract in which the disputed strip is situated. The defendant, however, claims that, as soon as he got his corrected deed giving him title to all of lot'3 in block 1 in Clayton Addition to the town of Hardy, as shown by the plat on file, he examined the plat, and extended his fence to the limits of his lot as described in the plat, and took possession of *425all the land within the boundaries as shown by said plat. The land so inclosed by him included the strip of land in controversy in this suit. Thus it will be seen that Frazier had actual possession of this strip of land at the time the present suit was instituted by the plaintiff. Both parties claim the legal title to the strip of land, and, the defendant being in actual possession of it, the plaintiff had an adequate remedy at law, and, under our decisions, ■ must be left to her legal remedy.

It follows that the chancellor should have dismissed the complaint for want of jurisdiction, and nothing in this opinion shall be construed as preventing appellant from suing at law to recover said lot 3 in block 1.

It follows that the decree of the chancellor must be affirmed.