2 Ga. 413 | Ga. | 1847
By the Court
delivering the opinion.
The demurrer to this bill was sustained by the Court below upon several grounds. The two relied upon as erroneous before
The question first to-be considered is, was this bill demurra-
If this bill falls within either of these classes it is the last. It is argued that it contains separate and distinct matter because it contains averments in relation to the fifteen promissory notes, such as, that they have been paid, that they have been proven to have been paid, and that three several suits have been instituted upon them at law : upon which a decree in favour of all the complainants is prayed, of delivery and cancellation of the notes, and perpetual injunction of the pending suit. And at the same time averments, that Nash, one of the complainants, and Durham the defendant, are co-sureties for Perryman upon his administration bond, that the papas delivered by Perryman to Durham were intended to indemnify them both for losses or advances on account of their suretyship; that Durham received money upon the securities and also from, the sale of land, sufficient to cover all his losses, irrespective of the fifteen notes, upon which Durham is asked to account with Nash touching their co-suretyship-; and that a decree be rendered against him that he deliver the fifteen notes to Nash. If these statements and., prayers were all in the bill, it would be multifarious ; some of them. are in it and others are inferences of counsel. Durham is not asked to account with Nash, nor is any decree of any kind prayed against him in favour of Nash singly. The specific object of the bill is the delivery and cancellation of the notes and the injunction of the suit. This object is sought equally by all the complainants; it is common to them all; they are all bound on the notes and need the same relief. They seek no benefit from the bill except to be protected
Ido not perceive upon what principles of chancery practice a chancellor could, upon this bill, decree that Durham and Nash account as sureties for Perryman. The relief cannot exceed the case made by the bill; it must be, not only within, but consistent with it. The case made by the bill requires the cancelling of the fifteen promissory notes for the benefit of all the complainants; whilst special relief to Nash, according to the argument of the learned counsel, requires that these notes be turned over to him. The one object is inconsistent with the other. Under the prayer for general relief, no separate relief could be decreed to Nash.
Every student knows how long and severe has been the contest for jurisdiction between the courts of law and equity. At one time it was an acrimonious contest for power; the judges and chancellors were at war, as well as the courts. All human experience attesting the inadequacy of all systems of positive law to do universal justice, and the rights of man, and the precepts of Christian morality, sanctioning the existence somewhere, of a remedial power, it is not strange that the courts of equity have gradually enlarged the limits of their jurisdiction. The exercise of chancery powers, in all cases of first impression, is unquestionably judicial legislation. When precedents are established, they assume the force of law, and thus our magnificent system of equity jurisprudence has grown into order, beauty and strength. Because of this power of judicial legislation' to the extent stated, discretionary
It is very important, in order to a correct determination of this question, that we carefully separate and distinguish the different cases in which equity will direct the cancellation or rescission of agreements and deeds or other instruments; and that we isolate this case so as to leave it dependent alone upon its own principles. It will be found that the different cases enumerated are determinable upon essentially different principles, and particularly that this caséis peculiar. I do not propose to discuss the principles upon which the courts have gone in deciding in favour of the jurisdiction in any of the cases, except those which are analogous to the one now for decision. Justice Story enumerates the cases where equity will cancel voidable securities, as follows :
First. Where there is actual fraud in the party defendant, in which the plaintiff has not participated.
Second. Where there is a constructive fraud against public policy, and the party plaintiff has not participated therein.
Third. Where there is a fraud against public policy, and the party plaintiff has participated therein.
The two first classes of cases need no illustration, says the learned commentator, “ since it is manifestly a result of natural justice that a party ought not to be permitted to avail himself of any agreement, deed or other instrument, procured by his own actual or constructive fraud, or by his own violation of legal duty or public policy, to the prejudice of an innocent party.” The third class is illustrated by the common case of a gaming security, which will be ordered to be delivered up notwithstanding both parties have participated in the violation of the law; “ because public policy will be best subserved by such a course.” The fourth class is illustrated by cases where both parties are implicated in a guilty transaction, but the complaining party has acted under circumstances of oppression, imposition, hardship, undue influence, or great inequality of age or condition, and therefore less guilty than his associate. Story Eq. Jur. sec. 694, 695, 298, 300, 301; 3 Mylne & Craig, 18, 24.
The case made by this bill does not fall under either of these classes. The bill does not charge actual fraud by the defendant Durham, either in the execution or transfer of the notes, or a constructive fraud against public policy; nor does it admit a participation by complainants with the defendant in a fraud against public policy, nor a constructive fraud by both parties with lessened guilt in the transaction on the part of the complainants— so that we may safely dismiss from our consideration all these classes of cases. To avoid misconstruction, I deem it best to say that the power to cancel is not confined to voidable instruments, deeds or securities; there are cases where equity will direct a security to be cancelled, although void. Story Eq. Juris, sec. 701; 1 Russell R. 559 ; 1 John. Ch. R. 517, There is also another class of cases to which this case cannot be referred, to wit, where equity will direct the cancellation of deeds or other instruments, at the instance of a party having a just title to them, or an interest derived from them. The case at this bar, I apprehend, if it were sustainable at all, would be sustained under the rule which Story lays down in the following words : “ Cases may occur when a deed or other instrument originally valid, has by subsequent events, such as by a satisfaction or payment, or other extinguishment of it, legal or equitable, become “functus officioand yet its existence may be either a cloud on the title of the other party, or
Now, if in this ¿ase the bill had charged that the fact of payment was no longer capable of proof, or that from lapse of time it was involved in obscurity, I could not, no chancellor ought to, hesitate to overrule the demurrer. The case relied upon with the greatest confidence by the plaintiffs in error, is Hamilton vs. Cumming, reported in 1 John. Ch. R. 517. In this case, Kent, designated by a late very distinguished English writer and jurist as “ the great chancellor,” reviews all the cases upon this head of equity jurisdiction. This was a bill filed for the delivery and cancellation of a bond. It stated that the defendant, pretending to be lawfully possessed of a bond made by James Hamilton, the father of the plaintiff, dated 27th Sept. 1794, conditioned for the payment of sixty pounds, had brought an action at law thereon, against the plaintiff as administrator of his father’s estate, and the cause was at issue.
I have stated that bills like the present, if sustained at all, -and in proper cases they will be retained, are founded on principles guia timet. I make this statement upon the authority of Mr. Story. Story Eg. Jur. sec. 694. Whilst equity abhors a multiplicity of suits, and will restrain vexatious and costly litigation, yet she is careful not to permit a party, who may be fully redressed or protected at law, to drag his antagonist into her halls, there to burden him with the costs of her cumbersome and tedious procedure. Besides, she has respect to the jurisdictional rights of her sister tribunal, and will not, without strong cause, trench upon them. Whilst this bill is strongly analogous to a bill guia timet, it is in some respects like a bill of peace. The ground of jurisdiction in cases of bills of peace is the suppression of useless litigation, and to prevent a multiplicity of suits. It is founded on the maxim “ interest reipublicce ut sit finis litium.” That class of cases to which bills of peace are applied most analogous to this is, where the plaintiff has, after repeated and satisfactory trials, established his right at law, and yet is in danger of further litigation and obstruction to his right from new attempts to controvert it. As in case of trial of title in ejectment, and repeated verdicts in favour of the complainant. Lord Cowper refused an injunction after five successive verdicts in favour of the plaintiff at law, saying that it was a suit between A and B, and one man was able to contend with another. The House of Lords overruled him, and granted the injunction. Courts of eguity however, mil never interfere in such cases until there is a trial at law, nor until the right has been satisfactorily established at law. This is well settled, and it is to this principle I desire to advert as applicable to the case under consideration. A verdict for the defendant in ejectment is no bar. He may have a perfect title, and yet his protection at law can never be com
It is the judgment of this Court that the decision on the demurrer to this bill of the Court below be affirmed, on the grounds talien in this opinion.