delivered the opinion of the Court:
The complainant derives his claim of title by deed of the premises from Mieer Clark, patentee, to Jehosaphat Eldred, made in 1818 or 1819, and recorded in June, 1820, and a commissioner’s deed to himself of the premises in 1863, on a commissioner’s sale of the same under a decree in a partition suit between the heirs of Eldred. He also claims the land under the seven years limitation law, by payment of taxes under color of title while the land was vacant and unoccupied. The bill claims that Comstock fraudulently, and with notice of appellee’s title, obtained a deed from the heirs of Clark, the patentee, in 1868, and that it ought to be removed as a cloud on complainant’s title.
The proof shows that, in 1861, Comstock leased the land to one Keefe for five years, who took possession under the *214lease, and also admitted one Kane into possession with him; that they together put a house on the land, and broke and fenced it, as agreed in the Comstock lease. In November, 1863, appellee (the complainant below) executed to Kane a lease of the land; and thenceforward, Kane claimed to hold under the appellee.
At the end of the five years, Comstock brought a suit of forcible detainer against Kane, which appellee defended. Comstock recovered judgment, and was put in possession of the premises by the sheriff on the evening of the 19th of February, 1868.
Comstock, on returning to the premises on the next morning from a near neighbor’s, where he had gone for the night, found that the tenants of the appellee had, during the night, broken into the house and retaken possession, and they held it with the strong hand against Comstock and the sheriff. A suit of forcible entry and detainer was brought by Comstock for these acts. Appellee asked, also, to have this suit enjoined, and that his title be quieted.
The question is raised whether this is a proper subject of equitable jurisdiction.
The titles here -are legal titles. A court of law is the proper tribunal to determine which of them is the best. It is only in extraordinary cases that a court of chancery will assume the trial of such titles. The holder of a legal title, not in actual possession, can not, as a general rule, maintain a bill to quiet his title, and to compel a relinquishment of adverse claims. A recent statute has changed that rule as respects vacant and unoccupied land.'
The reason why the party out of possession can not maintain such a bill, is that he may bring an action at law to test his title, which, ordinarily, a party in possession can not do. Alton M. and F. Ins. Co. v. Buckmaster, 13 Ill. 201; Harris v. Smith, 2 Dana, 10; Trustees v. Gray, 1 Littell, 147; Smith v. McConnell, 17 Ill. 135; Shays v. Norton, 48 Ill. 100; Banon v. Robbins, 22 Mich.
*215It is true, that in Kennedy v. Northup et al. 15 Ill. 149, this court entertained jurisdiction to set aside a deed fraudulently-obtained, where the defendants were in possession; but it was on the ground of fraud where, with knowledge of a prior unrecorded deed, a second one was fraudulently obtained from the same grantor and first recorded, for the purpose of defeating the title acquired under the first deed.
The circumstances here are quite different. The deed from the patentee to Eldred was immediately recorded. A long time afterward, Comstock purchased and obtained a deed from the heirs of the patentee, claiming that the prior deed of the patentee was void, as having been made before the issuing of the patent, in violation of an act of Congress. The land was bounty land, granted for military services in the war of 1812. Ho fraud can justly be predicated of a deed made bv heirs or obtained by Comstock in such circumstances. A charge of fraud in the bill, unsupported by proof, will not make the case one of fraud and bring it within the jurisdiction of a court of chancery.
Hewett v. Templeton, 48 Ill. 367, is referred to as a case where the jurisdiction was entertained where the complainant was in possession under much the same circumstances as in this case.
But no objection "was made there on the ground that the party had an adequate remedy at law, nor is the question of jurisdiction there noticed.
. This court has several times held that, except where the subject matter is wholly foreign to the jurisdiction of a court of chancery, the objection that there is an adequate remedy at law must be insisted on in the court below, and if not, it will be considered as waived when the record is brought here. Stout v. Cook, 41 Ill. 447; Dodge v. Wright, 48 Ill. 383; Hickey v. Forristal, 49 Ill. 256.
We do not, therefore, regard that case as an authority in favor of the jurisdiction claimed.
*216Is the appellee to be considered as in possession when he commenced his suit?
He was in the actual possession, but he obtained it unlawfully and forcibly.
He can not take advantage of his own wrongful and illegal acts as the foundation for equitable jurisdiction and relief. The appellee is to be treated as out of possession for all the purposes of this suit, so far as jurisdiction is concerned.
Comstock’s deed casts no cloud upon the appellee’s title. The latter, on the face of the record, appears to be the paramount title. We do not regard that there is any question of fraud in the case, or other circumstance that entitles the appellee to resort to a court of equity, instead of bringing his action of ejectment at law, and trying all questions between the parties in such a suit. A recovery in such action, and a judg.ment that appellee owned the premises in fee, would bar all the right of Comstock, and as effectually quiet appellee’s title as a decree in equity.
Being of opinion that the complainant had an adequate remedy at law, the bill should, on that ground, have been dismissed without prejudice.
The decree must be reversed, and the bill is dismissed without prejudice.
Decree reversed.