11 Or. 118 | Or. | 1883
By the Court,
This was a suit to enjoin a sheriff’s sale of real property situated in Marion county, and alleged to belong to the respondents, upon an execution against the property of a third party named Jennings Smith, issued upon a judgment recovered against Smith by the appellant, Heneky, in the circuit court for said county.
The grounds upon which the relief by injunction is claimed are that the sale, if permitted, will cloud the title of the respondents to the property and produce irreparable injury. The complaint states title in Smith on October 12, 1881; a conveyance on that day by him and wife to the respondents for the consideration of $12,000 by them paid to said Smith; and they “have ever since been and now are the owners in fee of said premises, and said deed was duly recorded in records of deeds of said county on the 14th day of October, 1881.” It also states the recovery of Heneky’s judgment against Smith for the sum of $4,000 damages, and costs in the additional sum of $214 05 in said circuit court on March 1, 1882, “in an action then pending in said court;” the issuance of the execution thereon to the appellant, Forward, sheriff of said county, its levy upon said property, and the advertisement thereof for sale, and that said sheriff threatens to, and unless restrained will proceed to sell said property according to such advertisement. The case comes here on appeal from the judgment of the circuit court entered, upon its decision overruling a general demurrer filed by the appellants to the complaint.
But the adoption of such statutory provisions as section 500 has never been supposed to have any effect upon the chancery jurisdiction as to cases not within the scope of their operation. Their purpose is to enlarge, not to impair the ordinary jurisdiction. We have therefore to determine whether the suit is sustainable upon common law principles in view of the facts alleged in the complaint. We shall assume that constructive possession, which is all the complaint shows in this case, is sufficient, so far as possession is concerned, to enable a plaintiff to maintain such a suit at common law, and independently of any positive legislation. For although he may not have actual possession, if the defendant has not nor has interfered in any manner with the possession, how could the plaintiff procure the trial of his title in a court of law? (Mitchell and wife v. Etter, et al., 22 Ark., 178; Apperson & Co. v. Ford, et al., 23 Id., 746, per Fairchild, J.) In the case before us, the respondents . rely upon title alone as giving them the right to the aid of equity to prevent a cloud being cast.
If they establish their title and satisfy the court that the
The complaint shows upon its face that their title is disputed by the appellants, for the latter have levied upon and threaten to sell the property as the property of Jennings Smith the judgment debtor, under execution” issued upon the judgment against him. There is no allegation that the appellants are acting in bad faith, or without reasonable grounds, in attempting to satisfy the Heneky judgment by an execution sale of the property as still belonging to the judgment debtor; and only the ordinary case is presented of a judgment creditor affirming that a conveyance by his debtor, prior to the rendition of his judgment, was fraudulent, and seeking to obtain satisfaction of his debt out of such property through regular legal process. "Will equity interfere in such a case? Mr. High, in his valuable work on injunctions, lays down the broad doctrine that “a sale of lands under execution which would confer no title upon the purchaser, and whose only effect would be to cloud the title of others, will be enjoined,” and cites many authorities as sustaining the proposition. (1 High on Injunctions, 872.) It would seem to result as a logical conclusion from the admission of the jurisdiction, to enjoin in such cases, that equity must have the power to inquire into and determine the facts constituting the foundation of such jurisdiction, i. e., whether the impending sale against which the injunction is asked would or would not confer any title on the purchaser if permitted to take place. 3
That equity would grant the relief upon an admitted state of' facts of this nature, cannot be doubted. For it would be clearly unjustifiable and against conscience to thus acquire the means of annoyance and injury to another without any pos
It must be admitted, however, that the reference to these authorities indicates no such distinction between them. If the two leading cases included in the reference, Pettit v. Shepherd, 5 Paige, 493, and Pixley v. Huggins, 15 Cal., 127—both of which appear to have been decided without reference to particular statutes—are closely examined, it will be seen that both were tried on tlieir merits, as cases properly in equity, without objection by any party entitled to a trial at law, and that in the former the objection to the jurisdiction,. raised for the first time at the final hearing, was overruled distinctly on the ground that it came too late, in the progress of the case, while in the latter the point never was raised or considered at all. And as the execution creditor may himself bring a suit in equity, in the first instance to determine the title of a supposed fraudulent grantee of his debtor, there would seem to be no inconsistency in his submitting to the equity jurisdiction in a -suit brought against him to enjoin the sale of property upon his execution, and presenting his case there for a final determination upon the merits. And should he see fit to adopt this course, there can be no reason why he should not be held bound by his election.
But such is not the case here. The appellants have not submitted to the equity jurisdiction nor waived their right to a trial at law. In Abbott v. Allen, 2 Johns. Ch., 519, Chancellor Kent refused relief by injunction to a purchaser
In Tucker v. Kensington, 47 N. H., 267, the court enjoined the sale of a debtor’s exempt homestead, on the ground that if suffered to take place it would give the purchaser an apparent title or claim upon the property injurious to the true owner, and which at the same time it would be against conscience for the purchaser to hold. In further illustration of their views upon the subject, the court say: “In many cases equity would decline to interfere, but leave the parties to their remedies at law. This would ordinarily
Speaking of this class of cases, Mr. Bump says: “In general, however, relief may be had at law as well as in equity, and the determination of the question of fraud cannot be withdrawn from the .forum which the creditor selects.” (Bump on Fraudulent Conveyances, 518.)
It is apparent that the case at bar depends as completely on a simple legal title * * * brought up directly by the bill as that of Abbott v. Allen, 2 Johns. Ch., 519, before alluded to. The rule of non-interference by courts of equity in such cases seems very well settled upon the authorities. And the reason for this is plain. The determination of legal titles never pertained to the chancery jurisdiction at common law. It is only where the jurisdiction has been aided by positive statutory enactment that courts of equity
The case at bar serves well to illustrate this distinction. If the conveyance from Smith and wife to the respondents was fraudulent as to the Heneky judgment, a purchaser at a sheriff’s sale thereunder would obtain the full legal title. The record of his sheriff’s deed would be notice of his title from the time of the levy of the execution upon the property purchased at the sale. What prudent man would purchase the property from the respondents at its full value under such circumstances? How could they themselves ever feel secure in holding or disposing of the property with such a cloud hanging over it? But we think the rule laid down in
But for reasons already given, the decree of the circuit court must be reversed and the suit dismissed; and it is so ordered.