47 Ind. App. 266 | Ind. Ct. App. | 1911
— This was a suit brought by appellee against appellant and Jesse Grice, as sheriff, temporarily to restrain and permanently to enjoin such sheriff from selling certain real estate, upon an execution issued upon a judgment rendered in favor of appellant against the Edmund H. Coombs Company, a mercantile corporation, as principal, and Edmund H. Coombs, as surety.
The complaint alleges in substance that appellee, in the fall of 1905, entered into a contract with Ethel H. Coombs and her husband, Edmund H. Coombs, for the purchase of the real estate described in the complaint, and that at that time said Coombs and Coombs were husband and wife, and owned and held said property as tenants by the entirety, and
Counsel insist that the complaint is bad in that it fails to allege (1) the insolvency of the-appellant, (2) that irreparable injury would result to appellee if the injunction was not granted, and (3) that appellee has no legal remedy and that the complaint shows upon its face that appellee protected herself by withholding payment of the purchase money until the litigation between appellant and appellee’s vendors was concluded.
Upon this subject the Supreme Court said, in the case of Wabash R. Co. v. Engleman (1903), 160 Ind. 329, 335: “There is no averment in the complaint of the insolvency of the defendant, nor is such fact established by the evidence. While it is true that the insolvency of a trespasser is not, alone, sufficient to give a court of chancery jurisdiction to enjoin his tortious acts in a case where there is an absence of other necessary facts, still insolvency is an important element or factor in determining the question of the inadequacy of the relief afforded by an action at law, or, in other words it affords an additional reason to justify a court of equity
To have alleged the insolvency of appellant would have afforded additional ground for the injunction, but there were other allegations which we think sufficiently showed the inadequacy of the legal remedy, and therefore made the complaint sufficient in this respect.
Under the authorities cited, we think the complaint sufficient to withstand the objections urged against it to which reference has been made. The other objections to the com
The finding of facts is very lengthy, and supports every material allegation of the complaint. We shall, in the discussion of the questions presented on the objections to the conclusions of law, set out the substance of such part of the finding of facts as we deem necessary to an understanding of the question discussed.
On the facts found the court stated its conclusions of law as follows: “(1) The judgment of defendant First National Bank of Fort Wayne against the Edmund H. Coombs Company and Edmund TI. Coombs is not a lien upon the real estate described in plaintiff’s complaint and plaintiff is entitled to a perpetual injunction against both defendants, enjoining any sale of said real estate upon the execution heretofore issued upon said judgment, or any execution hereafter issued thereon. (2) Plaintiff is entitled to have her title to said real estate quieted as against any claim of
Counsel for appellant say: “The finding of facts, conclusions of law and the exceptions thereto present the following bald question: Can a person with full knowledge that a creditor claims that it has a right to set aside a conveyance of its debtor, contract to buy the real estate from the debtor without paying the purchase price, but, expressly withholding it to protect her from the results of the litigation, enjoin the sale of the real estate on the creditor’s execution when the creditor is acting promptly to test the conveyance?” This is not a fair statement of the question presented by the finding of facts and the conclusions of law thereon. The findings show that appellee had submitted a proposition to buy the real estate in question, which had been accepted by Coombs and Coombs, before she received any information upon the subject of appellant’s claim; that before the deeds and papers were signed and delivered she learned of appellant’s claim and suit against her vendors to set aside the deed to them, and she then, at the instance of her attorney, protected herself by withholding the purchase money and placing it in the hands of the party who was to hold the deed and papers in escrow pending the settlement of such litigation; that in December, 1905, after appellee had contracted for the real estate in question, appellant filed a suit against appellee’s vendors to set aside the deed to them of said real estate, and they afterwards abandoned their effort to set aside said conveyance, and in this action appellant disclaimed any purpose of attacking the conveyance to said Coombs and Coombs as being in fraud of creditors of said Edmund H. Coombs and the Edmund H. Coombs Company, but asserted their right to test the good faith of said conveyance in some future suit.'
It is urged that appellee’s title is disputed in this case, and that for this reason the eases cited are not controlling, and counsel cite the cases of Wabash R. Co. v. Engleman (1903), 160 Ind. 329, and Christman v. Howe (1904), 163 Ind. 330.
It is insisted by appellant that the following language in the case of Wabash R. Co. v. Engleman, supra, quoted from High, Injunction (3d ed.) §701, is in point: “If the title to the locus in quo is in doubt, the injunction, if allowed at all, should only be temporary until the title can be determined at law. ’ ’ If counsel had examined this case carefully, they would have found that immediately following the language just quoted the court continued as follows: “The reason for this doctrine is because, as a general rule, a court of equity will not try disputed titles to land. 1 Pomeroy, Eq. Jurisp. (2d ed.) §252. But exceptions, however, have been made to this general rule, and there is authority for asserting that when the aggrieved party is in possession of the premises, although his title thereto is in dispute and has not
14. It was held in the case of Bishop v. Moorman, supra, that “a tenant by entirety may enjoin sale upon a judgment against his cotenant of the land jointly owned, although the record discloses the character of the title and the nature of the judgment.” See, also, Hulett v. Inlow (1877), 57 Ind. 412, 26 Am. Rep. 64; Davis v. Clark (1866), 26 Ind. 424, 89 Am. Dec. 471.
In the case of McAfee v. Reynolds, supra, it was held that a .judgment lien holder may protect his interest in lands by injunction. Again in the case of Shanklin v. Simms, supra, it was held that ‘ ‘ a party who claims as owner or mortgagee of land, levied on under a judgment which is not a lien on it, may maintain a suit for injunction.” See, also, Bishop v. Moorman, supra.
In the case of Christman v. Howe (1903), 163 Ind. 330, one of the cases relied upon by appellant, .the Supreme Court, at page 338, quoting from Wabash R. Co. v. Engleman, supra, said: “Of course, the right to invoke the jurisdiction of a court of equity must depend upon the peculiar or particular facts in each case, and one of the questions to be decided is whether the legal remedy under the particular circumstances of the case is adequate, or, in other words, is such remedy as practicable and efficient to promote the interests of justice and its prompt administration as is the remedy in equity? # * # The authorities affirm that the inadequacy of the legal remedy is the very foundation or indispensable pre
The following language in the case of Bell v. Murray, supra, is very applicable to this case: “Neither upon principle nor reason must the plaintiff, claiming to be the real owner of all of the property, be compelled to sit back and wait 'until the claim of the judgment creditor had ripened into a complete and perfect claim, and he had attempted to enforce it. This would be a most unreasonable requirement, and would work great injustice to a plaintiff. Before he could under such a contention be permitted to institute a suit to settle the disputed question, months or years might elapse, and in the meantime the plaintiff, if the true owner, might be absolutely deprived of the highest and most important privilege and attribute of ownership, — that is, the power to sell at the highest price. No one would purchase and pay the same amount were this threatened cloud impending over the title as he would if it were entirely removed.”
In the case of Richwine v. Presbyterian Church, supra, the court said: “The policy of the law is, so far as it can be done, to give a complete remedy in one suit for all wrongs complained of growing out of the same transaction, and so put an end to the litigation.” See, also, Shattuck v. Cox (1884), 97 Ind. 242.
Judgment affirmed.