120 F. 690 | U.S. Circuit Court for the Southern District of Georgia | 1903
C. E. Bearden, H. F. Bearden, and Susie May Kunkel, formerly Bearden, citizens of Tennessee, have filed a bill invoking the equitable power of this court for the partition of a valuable business lot, with the improvements thereon, situated in the city of Macon, in this district. Briefly stated, it is averred in the bill that the title to the lot in dispute was vested in Charles A. Ells, Jn, and his sister Elizabeth M. Ells, by virtue of a devise in the will of their father, Charles A. Ells, Sr. This is not in dispute. Both the complainants and the defendant claim title by virtue of this devise. It further appears from the bill that on the 21st day of March, 1867, Elizabeth M. Ells entered into an antenuptial contract and settlement with William 'Morgan Bearden. The marriage was afterwards consummated, and the complainant's before the court are the offspring thereof. Among other things, the antenuptial settlement provided as follows:
“That, for and In consideration of a marriage now about to be had and solemnized between the said above-named parties, the said party of the first part (William Morgan Bearden) does for himself, his heirs, executors, and administrators, covenant, grant, and agree that all the property rights and interest in property, of whatsoever nature, now vesting in, or hereafter to be acquired by, the said Elizabeth M. Ells, shall remain the separate property of the said Elizabeth M. Ells, free from the payment of any debt, default, or contract of her husband during her natural life, and the same at her death to vest in, and become the property of, such child or children as she may then have living,” etc.
The contract contains another stipulation, as follows:
“And it is further agreed that should it at any time be deemed advisable by the said parties during this marriage to sell any part of said property for the purpose of-reinvesting the proceeds thereof in other like property, that the same may be done by their uniting together in the execution of the deed or deeds of conveyance of the same.”
The bill further recites that on the 25th day of November, 1889, Elizabeth M. Bearden, formerly Ells, and Charles A. Ells, Jr., her brother, executed a deed to John H. Benner conveying the premises in dispute. William Morgan Bearden was not a party to said deed, nor did he in any wise unite in the same. In November, 1898, Elizabeth M. Bearden departed this life, leaving the complainants her only children or representatives of children. The deed to Benner purported to-convey a fee-simple title to all of the property, but it is alleged that the legal effect of this deed, so far as Elizabeth M. Bearden is concerned, was merely to convey her life estate, and that by virtue of the terms of the marriage settlement referred to, the fee-simple title to one-half undivided interest in said property vested in the complainants. Notwithstanding this fact, and that they are and have been entitled to possession since the death of their mother, Benner is in possession and claiming title to the entire property under his deed of November 25, 1889, refusing to recognize any right of possession of the complainants or any liability on his part to account to them for the rents, issues, and profits. This possession of Benner has been a continuous possession from the date of the death'of their mother, the value of complainants’ undivided half interest is $15,000 or other large sum, and this half interest has been worth from $100 to $125 a month since the 1st day of December, 1898. This deed to Benner of November 25, 18895
To this bill the defendant has demurred on several grounds. While ¡these are stated with scrupulous and extended particularity of detail, ¡they may be condensed into the propositions that the complainants ihave a full, complete, and adequate remedy at law; that the bill is without equity; that the bill is multifarious; and that the plaintiffs
The questions raised by the demurrer have been argued with ample citation of authority. A brief reference to the controlling principle, as settled by authoritative text-writers and decisions, will suffice for present determination.
The bill very clearly indicates that the defendant holds the possession of the land in dispute adversely to complainants and under claim of title to the fee in himself. This is not only conceded, but is alleged as one of the grounds for equitable relief. It is obviously sought under the guise of a prayer for partition. In proper cases this has been a long-established power in the equity courts. In the reign of Elizabeth the court of chancery began to assume jurisdiction in partition, and it became so common that the writ of partition and compulsory process against joint tenants and tenants in common created by act of Parliament in the reign of Henry VIII became obsolete, and was finally abolished in the early part of the last century. Under the English judicature act of 1873, proceedings for partition are now specially intrusted to the chancery division of the court. The writ of partition, as enacted by St. 31 & 32 Henry VIII, we have the authority of Chancellor Kent for stating, has been gradually re-enacted and adopted, with probably enlarged facilities for partition, in the United States. This, however, relates to statutory remedies granted in the several states, and, we may add, by act of Congress in the District of Columbia. Willard v. Willard, 145 U. S. 116, 12 Sup. Ct. 818, 36 L. Ed. 644. The same eminent writer (Commentaries, 4th vol., p. 364) states that while—
“The jurisdiction of chancery in awarding partition is well established in England by a-long series of decisions, and it has been found by experience to be a jurisdiction of great public convenience, a court of equity does not interfere unless the title be clear, and never where the title is denied, or suspicious, until the party seeking a partition has had an opportunity to try his title at law. The same principle has been acted upon in the courts of equity in this country.”
In a footnote to this paragraph it is stated, upon what seems conclusive authority, that a disseisin or adverse possession destroys the common possession, and bars a suit for partition so long as the ouster continues; citing Clapp v. Bromagham, 9 Cow. 530; Adam v. Ames Iron Co., 24 Conn. 230. Many other cases might be added.
Nor does the claim that the jurisdiction is here required to confirm and quiet title of the complainants strengthen their rights to this proceeding. In Orton v. Smith, 18 How. 263, 266, 15 L. Ed. 393, it is announced that those only who have a clear legal and equitable title to land connected with possession have any right to claim the interference of a court of equity to give them peace or dissipate a cloud on the title. In a great many cases this rule is cited and approved. See Rose’s Notes U. S. Reports, pp. 572-3. It seems to be distinguished and explained in Holland v. Challen, 110 U. S. 20, 3 Sup. Ct. 495, 28
“It has been often adjudged that whenever, respecting any right violated, a court of law is competent to render a judgment affording a plain, adequate, and complete remedy, the party aggrieved must seek his remedy in such court, not only because the defendant has a constitutional right to a trial by jury, but because of the prohibition of the act of Congress to pursue his remedy in such cases in a court of equity.”
Nor can the court maintain jurisdiction in equity upon the alleged necessity for an accounting. This has been long settled. Hipp v. Babin, 19 How. 271-278, 15 L. Ed. 633. In that case the Supreme Court, through Mr. Justice Campbell, said:
“Nor can the court retain the bill, under an impression that a court of chancery is better adapted for the adjustment of the account for rents, profits, and improvements. The rule of the court is that when a suit for the recovery of the possession can be properly brought in a court of equity, and a decree is given, that court will direct an account as an incident in the cause. But when a party has a right to a possession, which he can enforce at law, his right to the rents and profits is also a legal right, and must be enforced in the same jurisdiction.”
This is a leading case and often cited. It is true that this proceeding might have been maintained under the hybrid practice adopted by the statute in Georgia. This may be convenient in some cases, but the. courts of the United States are of course controlled by the constitutional provision, and the act of Congress above quoted intended to make the constitutional inhibition definite and always applicable in proper cases.
While the court must sustain the demurrer to the extent of denying the complainants’ right to proceed on the bill at this time, it does not seem proper that the bill should be at once dismissed, with a possibility that the alleged rights may be concluded. The bill was brought in apparent good faith, upon what seems to be a claim of title, to be determined by the construction of a marriage settlement annexed as an exhibit. The complainants then, to use the language of Chancellor Kent, should be given the opportunity to establish their legal title in a court of law.
Order will be taken, therefore, dismissing the bill finally, unless the complainants shall bring their action of ejectment, conformably to the usual practice, to the next term of the Circuit Court having jurisdiction, or to the next term of such other court as may have concurrent jurisdiction. In case such proceedng in ejectment is instituted, this bill will be retained in its present status for a reasonable time, in order that partition may be thereafter effected in case complainants
It follows that the preliminary injunction in case effect until such ejectment proceeding may be filed.