Blackwood v. Van Vleet

11 Mich. 252 | Mich. | 1863

Manning J.:

The bill is filed by the assignee of a mortgagee. Defendant is in possession of the mortgaged premises, claiming them by tax titles. The bill is to enjoin him against the commission of waste, and to have the tax titles set aside and declared void and of none effect, for certain alleged defects in levying the tax. It is also stated that complainant has filed a bill against the mortgagor to foreclose .the mortgage. And a demurrer having- been interposed for want of equity, complainant seeks to sustain his bill on two grounds: 1st, As an injunction bill to stay waste; 2d, On the ground that the tax titles are clouds on his interest in the land, which he is entitled to have removed to quiet his mortgage interest, and also to enable him to foreclose the mortgage and make the money out of the land, which can not be sold to advantage with the tax titles resting upon it.

The mortgage was given in May, 1837, before the statute of 1843 taking away the right of the mortgagee and his assigns to bring ejectment before foreclosure of the mortgage. As this statute is inoperative as to prior mortgages, there is nothing in the way 'of complainant bringing an action of ejectment against defendant to try the validity of the tax titles. — Mundy v. Monroe, 1 Mich. 68; Stevens v. Brown, Wal. Ch. 41. This is not denied. It is said, however, by complainant, that the remedy at law is not so complete and expeditious as in equity, as the statute regulating actions of ejectment gives two new trials, &c. Comp. L. § 4589. This is no reason for the interposition of a court of equity. It exists in every actiou of ejectment; and if admitted as a ground of equity jurisdiction, would change the trial of titles to real estate from law, and by a jury, to a court of equity. Defendant claims by an adverse title, -and there is no allegation of fraud in the acquisition of the tax title.

By an injunction bill, strictly speaking, we understand a bill asking, no other relief. When the bill prays other relief the injunction is regarded as ancillary to such relief, and falls to the ground with it. In no view that can be taken of the hill does it show sufficient cause for an injunction. Complainant is not in possession, has not established his title to the premises against defendant at law, and shows no privity of estate, or action of ejectment pending to try the tax title.

The decree dismissing the hill for want of equity must be affirmed, with costs.

The other Justices concurred.