Ely v. Wilcox, 26 Wis. 91

Ely v. Wilcox

26 Wis. 91 | Wis. | 1870

Cole, J.

The first question which naturally arises on this appeal is, whether the matters stated in the complaint show that the plaintiff has such an interest in the subject-matter of the litigation as to be entitled to any portion of the relief demanded. It appears that the plaintiff has sold and conveyed to “ sundry and large numbers of persons,” for “ sundry valuable considerations and large sums of money, amounting in the aggregate to more than twelve thousand dollars,” “ a large portion of the premises by lots according to the recorded plate,” and that all of the deeds of conveyance “ contained the usual full covenants and general warranty of title.”

It is therefore admitted that the plaintiff is bound by hi,s covenants to protect and defend the title of the *97persons to whom he has sold the property. In order to do this, he has brought this action. As observed by his counsel, his obligation to his grantees would not be fully performed by paying back the purchase money with interest. He ought to make good the title derived through him to the property. This is what the letter and spirit of his covenants require him to do; and in order to effectually do this, he must have the right to come into a court of equity to establish that title. The case is not distinguishable in principle from Malins v. Brown, 4 N. Y. 403; Bennett v. Abrams, 41 Barb. 620; and Owen v. Paul, 16 Ala. 130.

As we understand this complaint, it is in the nature of a supplemental bill, filed for the purpose of giving the plaintiff the benefit of the former finding of the court, that the defendant was a fraudulent grantee of Matson, and took his conveyance with full knowledge of the plaintiff’s rights. The plaintiff claims that he is entitled to have the benefit of this finding in consequence of the new matter stated in the complaint. This new matter is, that since the adjudication in the former suit, the title of Dwight Wilcox in the property has been reconveyed to the defendant, and consequently all the plaintiff’s original equities have reattached to it in his hands; that as the defendant was originally a trustee by reason of his fraudulent acts, holding the title for the benefit of the plaintiff, so now, having repurchased the estate, he stands charged as at first. Cannot the complaint be sustained as a supplemental bill to give the plaintiff» the benefit of the former finding, in view of the fact of the reconveyance to the defendant 1 We do not understand that it is the purpose of this suit, or that it is competent by it, to reform, modify or correct the judgment in the former suit in any manner, or to give it any new effect. This court fully agreed with the circuit court upon the point, that the evidence in that case showed that the defendant was a faudulent grantee; yet, having found that T. *98Dwight Wilcox was an innocent purchaser, it is very obvious that the purpose of the action had necessarily failed, and that the only judgment which could be given was to dismiss the bill. It seems to us that this was the only proper judgment to be rendered in that case. Still the finding of the circuit court, upon the question that the defendant was a fraudulent granted, stands undisturbed, and the plaintiff seeks to have the benefit of that finding. Can he not have it in this action ? We think he can.

Mr. Justice Story, in his work on Equity Pleadings, when considering the nature and character of the different sorts of bills, says: “A supplemental bill is merely an addition to the original bill, in order to supply some defect in its original frame or structure. In many cases, an imperfection in the form of the original bill may be remedied by an amendment. Generally, a mistake in the bill in the statement of a fact should be corrected by an amendment, and not by a right statement of the fact in a supplemental bill. But the imperfections of a bill may remain undiscovered while the proceedings are in such a state that an amendment can be permitted according to the practice of the court; or it may be of such a nature, having occurred after the suit is brought, as may not properly be the subject of an amendment. By the practice of the court, no amendment is generally allowable after the parties are at issue upon the points of the original bill, and witnesses have been examined. Nor is it generally allowable to introduce into the bill, by amendment, any matter which has happened since the filing of the bill. In such a case a supplemental bill is the appropriate remedy.” § 332. In Collins v. Ex’rs of Taylor, 3 Green’s Ch. R. 163, where a bill had been filed by one of several legatees fqr his share of a legacy, against the executors and the other legatees, and an interlocutory decree had been made establishing the right of the legatees to recover, the complainant dismissed his *99bill, without the consent of the legatees, who were defendants. And the court set aside the order of dismissal as to them, and gave them leave to file a supplemental bill to obtain the benefit of the decree without prejudice from the order of dismissal.

The doctrine of this case seems to be strictly applicable. It shows very clearly that a supplemental bill may be filed as well after as before a decree, to give a party the full benefit of matters determined by the litigation. The plaintiff seeks to avail himself of a like principle. In the former suit the defendant was found to be a fraudulent grantee, chargeable with notice of his rights in the property. But the plaintiff could obtain no relief in that action, notwithstanding this fact was found in his favor, because the defendant had parted with the title to a bona fide holder. But now, in consequence of the reconveyance of the property to the defendant, he can obtain fall relief, and of the same character as that demanded in the former suit. All the equities between the parties have been ascertained and determined, and there is no difficulty whatever in giving the plaintiff the full benefit of the former finding without modifying or changing it in any respect. And this finding, we suppose, must be considered as conclusive between these parties upon the facts there found. It is analogous to a verdict rendered before a court possessing no power to arrest judgment or grant a new trial. Such verdicts are conclusive between the parties in regard to the same matters, without the judgment. Felter v. Mulliner, 2 J. R. 181; Brockway v. Kinney, id. 210; Thompson v. Thompson, 1 Desaus. 136; Shaeffer v. Kreitzer, 6 Binn. 430. The finding of facts by the circuit court, in the former case, seems to strictly fall within the reason and principle of a verdict and judgment in ordinary cases. A judgment would have followed this finding, had it not been for another fact which deprived the *100plaintiff of the fruits of the matters thus determined and settled between these parties.

We therefore consider all the objections taken to the complaint untenable.

By the Court. — The order of the circuit court overruling the demurrer is affirmed.