Clark v. Drake

3 Chand. 253 | Wis. | 1851

Whiton, J.

This is an appeal from an order of the circuit court overruling a demurrer to the complainant’s bill. The bill sets out, in substance, that Charles C. P. Arndt and the defendant, Drake, bargained with James D. Doty for two half quarter sections of land; the said Doty acting in behalf of individuals under the name of the Fond du Lac Company; that the sale was to be on condition that Arndt and Drake would, by tbe first day of June then next, erect a saw mill on tbe land, and pay tbe sum of two hundred and forty dollars, one-tbird in cash, one-tbird in four months, and the remaining third in eight months; that to carry out the agreement, Doty executed to Arndt & Dralce. a deed of the land, and they, at the same time, executed to him a deed of defeasance, by which they covenanted that if they failed to build the saw mill on the land by the first day of June, 1839, the deed executed by the said Doty should become void, and the estate created by it should cease and determine; that, at the time the deeds were executed, the said Arndt & Drake gave their promissory note for eighty dollars, payable in eight months, with interest; that Arndt & Drake commenced building a saw mill on the land, but did not erect a good and sufficient saw mill on the land by the first day of June, 1837, and have not at any time done so, but have abandoned the work and the land; that the said Doty resumed the possession of the land, as the complainant believes; that he believes the said Arndt & Drake have never paid the said eighty dollars, or any part of it; that after the land had been abandoned by the said Arndt & Drake, and while it was in the possession of said Doty as said trustee, one Mason 0. Darling purchased it of him for a valuable consideration, and made valuable improvements thereon; that said improvements were made, as the complainant believes, with the knowledge of said Arndt & Drake, or one of them ; that said complainant and one Bannister purchased an undivided half of a portion of said premises; that the complainant subsequently bought out the interest of Bannister therein, but has not yet obtained a conveyance of it; that he also purchased of Darling the remainder of said land; that he has been in possession of the land purchased of said Darling, since the 15th day of August, 1838, having had possession delivered to him by said Darling at that time; that Darling at that time was in undisputed possession of the land; that the complainant was ignorant of any claim of Arndt or Drake to said land, or any part of it that said Drake, in his own right, and as the assignee of Arndt, claims title to said land, and has brought an action of ejectment therefor against the complainant, in which the complainant is apprehensive the said Drake may prevail. The bill praj'S that the defendant may be decreed to execute a release to the complainant of his pretended title to the land, and also for an inj unction.

To .this bill a demurrer was interposed, which was overruled by the court, and the defendant required to answer in thirty days. From the order overruling the demurrer, Drake appealed, and now insists that it is erroneous, because, on the facts stated in the bill, the complainant is not entitled to any relief; that he claims no discovery to aid him in his defense of the suit at law, shows no right to the land established at law, and seeks to obtain a title to the land, by the aid of a court of chancery, by a decree enforcing a forfeiture. On the part of the appellee, it is contended that the bill of complaint gives the court jurisdiction without the aid of our statute, under the general class of bills quia timet, to remove a cloud from the complainant’s title, and the court having taken jurisdiction for one purpose, will assume jurisdiction of the whole case, and restrain the proceeding at law ; that our statute gives the court jurisdiction ; that the bill presents a case in which the defendant has such an advantage at law, and in which the title is so embarrassed that the court will assume jurisdiction on the ground of restraining inequitable proceedings at law; that a court of equity only can give adequate relief, as the action of ejectment would only determine the possession ; that this case is not one coming within the rule that the complainant must first establish his right at law, nor a case where it is sought to enforce a forfeiture; that, admitting it to be a forfeiture, the forfeiture has accrued and was enforced by the plaintiff’s grantee.

We think that the order of the circuit court was erroneous, and that none of the positions taken by the appellee can be sustained. If the complainant is entitled to the land, he is entitled to it because the condition created by the deed from Doty to Arndt & Drake, and their defeasance back, was not complied with, and consequently the estate was defeated. In other words, the failure of Arndt & Drake to comply with the condition worked a forfeiture of the estate.

It is too well settled to be at all controverted, that courts of equity will not take jurisdiction of a case for the purpose of enforcing a forfeiture, but always leave a party who seeks to take advantage of one to his remedy at law. Harsburg v. Baker, 1 Pet., 236; Skinner v. Dayton, 2 Johns. Ch., 526. It was argued on behalf of the appellee, that the court obtained jurisdiction under the general class of bills quia timet, to remove a cloud from the complainant’s title, and having jurisdiction for one purpose, will assume jurisdiction of the whole case and restrain the proceedings at law. But it is to be observed that the complainant’s right, as sought to be enforced by this bill, is founded wholly upon the alleged forfeiture; unless a forfeiture has accrued the complainant has no right to the land. If the bill had asked for a discovery to aid the complainant in the defense of the suit at law, it might have been sustained ; but asking for none, and founding the right of the complainant to the land upon the forfeiture alone, it seems clear that it cannot be supported.

. It was contended on the part of the appellee, that the statute gave the court jurisdiction of the case, even if, by the general rules governing courts of equity, the court could not take jurisdiction. The statute referred to (R. S., ch. 84, sec. 34) provides that any person having the possession and the legal title to land may institute a suit against any other person setting up a claim thereto, etc.

We do not think that this section of the statute was intended to give courts of equity the power to disregard the well settled rules of law governing their proceedings for the purpose of determining questions of this nature. It was intended to give a person in possession of land the power to institute a suit in a court of equity, in a case proper for the consideration of such a court, against any person setting up a claim to the land, to settle the question of title, although no attempt should be made to disturb the complainant in his possession. In this case the complainant would have no need of aid from the statute to enable him to maintain his bill, if his case was a proper one for a court of equity to entertain, because the bill alleges that the defendant Drake, has commenced an action of ejectment against hijn to recover the possession of the land.

In such a case, if the defendant in the ejectment suit makes out a case proper for a court of equity to entertain, the court will take jurisdiction, sustain the proceedings at law, and make out a final decree between the parties. ■ But here the complainant is met at the threshold with the fact that his right to the land is founded wholly upon the alleged forfeiture, and we must leave him to his remedy at law. The order of the circuit court must be reversed.