39 N.J. Eq. 551 | N.J. | 1885
The opinion of the court was delivered by
The complainant filed her bill to redeem a lot of land in Jersey City from two mortgages, dated respectively February 6th, 1869, and April 2d, 1872, given by herself and husband to the defendant, to secure $400. The bill avers that about March 7th, 1878, the defendant took possession of the mortgaged premises as mortgagee, and still holds the same, and prays that an account- may be taken and allowance made to the complainant of the rents and rental value of the property, and that, if any balance shall appear to be due the defendant on her mortgages, she may be decreed to surrender the mortgaged premises to the complainant on payment of such balance, which the latter tenders herself ready to pay.
The defendant’s answer admits the mortgages and the entry into possession about March 7th, 1878, but alleges that the defendant
“ Entered into and has since remained in possession of said mortgaged premises, as stated in the bill, but not simply as mortgagee thereof, but also as owner by purchase of the equity of redemption which the complainant theretofore had in said premises.”
The answer then sets forth the means by which the defendant claimed to have become the owner, viz., a judgment in her favor against the complainant, obtained in a court for the trial of small causes, for a debt outside of the mortgage debts ; the docketing’ of that judgment, in due form of law, in the common pleas of Hudson county; a fi. fa. from the common pleas, and a sale and conveyance of the premises by the sheriff of Hudson county to the defendant. The answer further avers that the complainant acquiesced in said conveyance, and thereupon voluntarily surrendered the possession of the premises to the defendant, who entered, paid off taxes, water-rents and assessments, and some time after-wards made valuable improvements upon the property.
About the time the bill was exhibited, the complainant brought an action of ejectment for the premises against the defendant, in the Hudson county circuit, to which the defendant pleaded the general issue, and, on particulars of her title being demanded, set up the mortgages and the sheriff’s deed, with the proceedings whereon it rested. Thereupon the complainant applied to the chancellor for an order that the ejectment suit should stand as an issue from chancery to try the title -under the sheriff’s deed presented by the answer, and that the defendant should be restrained from relying thereon upon the mortgage, so that it might be ascertained at law whether the complainant was still the owner of the equity of redemption. The defendant opposing this application, it was denied.
Proofs were then taken in the cause, which established the facts alleged in the pleadings, except that they also developed the matter upon which the complainant relied to show that the defendant’s title under the sheriff’s deed was, on its face, illegal and void.
At final hearing, the chancellor dismissed the bill on the ground that it was silent as to the sheriff’s deed, and stated that the defendant rook possession as mortgagee, when in fact she entered as owner of the equity of redemption, and held under both the sheriff’s deed and the mortgages. He declined to pass upon the validity of that deed, because the bill raised no issue thereon, and said that if it had raised such an issue, the court would have had no jurisdiction over it, it being a purely legal question.
From this dismissal the complainant appeals.
The first question arising touches the sufficiency of the bill.
The most important part of a bill in equity is that denominated the “stating-part,” in which should be set forth all the facts fundamentally material to the complainant’s case, actually essential to it as a portion of its very consistency, and none others. Farren’s Bill in Chancery pp. 15, SO. Formerly the bill contained very little more than the stating-part. Partridge v. Haycraft, 11 Ves. 570. And if the defendant, by plea or answer,
It thus appears that if the complainant has averred, in the bill, all the facts necessary to constitute his right to the relief sought, and intends to rely upon a mere denial of the matters which the defendant may assert to defeat his claim, he can safely dispense with the charging-part of the bill and the special replication. The stating-part of the bill and the general replication will put in issue everything essential to his relief.
This was the complainant’s position in the present case. The bill averred that she was the owner of the equity of redemption; that the defendant was a mortgagee in possession, and that the complainant was ready to pay her debt, in redemption of her land. This constituted her complete title to relief. She knew, indeed, that the defendant would deny her ownership of the equity of redemption, and would set up a conveyance to herself of the absolute estate, but the complainant sought no discovery, and no equitable assistance against that conveyance, and trusted to nothing but its inherent and manifest defects to show its invalidity. Under these circumstances, her bill and general repli
The next question is, What course was proper to be pursued respecting the claim which the defendant set up in bar of the complainant’s equity of redemption ? This claim was that the complainant’s estate, regarded as an equitable interest only in its relation to the mortgage, but as a legal estate for all other purposes, had been conveyed to the defendant by proceedings at law. It presented a question of legal title.
The general rule is that a court of equity has no jurisdiction to try or establish, by its decree, the legal title to lands. Am. Dock and Imp. Co. v. Trustees, 10 Stew. Eq. 266. When, therefore, the existence of such a title is prrt in issue in an equity cause, various modes of dealing with it have been adopted. Sometimes, when the complainant’s right to the relief sought depended upon his having the legal title, and there was no obstacle to his assertion of that title in an action at law, the court of chancery has dismissed his bill because- it was filed before he had so asserted and maintained his title. This has been done with bills of peace, and bills for partition, and in other cases. The modern practice, however, leans much more toward the retention of the bill (except in some sorts of bills of peace), until an opportunity is afforded to the complainant to bring a legal action upon his title, or until an issue out of chancery can be tried at law. Hartshorne v. Hartshorne, 1 Gr. Ch. 349; 2 Lead. Cas. in Eq. 880 (Agar v. Fairfax). This practice seems to be necessary when the complainant relies upon an equity only, and the defendant sets up a legal right in defence. It is also usual, when an action at law is to be brought, for the court of chancery to control the action in such a manner that the issue to be tried shall be that on which the chancellor desires an adjudication at law. Thus in Thornton v. Court, 3 De G., M. & G. 293, where the defendant held a mortgage, by which he could prevent a trial at law of the issue which it was designed to have settled, the equity court made an order restraining the defendant from using the mortgage for that purpose. A similar power was exercised in Decker v. Caskey, Sax. 427. If an action at
When, at the defendant’s instance, a trial at law was refused, the defendant could not complain if the chancellor had, himself, decided the question. Cases need not be cited to indicate the rule that when a matter- proper for the determination of a court of law arises in an equity cause, the chancellor may, by consent of parties, himself pass upon it, since the practice was so recently followed by us in Palys v. Jewett, 5 Stew. Eq. 302, a case standing on the very verge of the rule. This brings us, then, to a consideration of the point in issue—the validity of the sheriff’s sale.
As already stated, that sale was made under an execution from the court of common pleas upon the docketing there of a judgment rendered in a court for the trial of small causes. In Tasto v. Klopping, 14 Vr. 448, it was decided that a condition precedent
“ I return the within execution this August 16th, 1876, unsatisfied. I could not find sufficient goods and chattels belonging to said defendants, in this, county, whereon to levy and pay the demand according to law.”
This means that he could not find enough property to satisfy the whole judgment, and not that he could not find any, or had sold what he could find and a balance still remained. It is substantially the same as was condemned in the case just cited. The defendant’s title under the sheriff’s deed must therefore be adjudged bad, and it follows that the complainant still has an equity of redemption.
The case, however, presents circumstances which require the court to impose on the complainant certain conditions precedent' to the exercise of her right to redeem, viz., the payment to the defendant of a fair compensation for the permanent improvements she has made. It appears that, before the sheriff’s sale,, both complainant and defendant believed that such sale would be valid, and some negotiations passed between them on that, assumption, from which the defendant not unreasonably inferred that the complainant was willing she should take the property in satisfaction of her judgment, if no one else would bid more that after the sale, both parties believing it to have been legal, the complainant surrendered and the defendant took and retained possession of the premises, and thereafter the defendant treated
The complainant urges that the question whether'the defendant’s title was good or bad depended upon the sufficiency or insufficiency of the constable’s written return to his execution, and hence was a question of law, the correct solution of which the defendant was bound to know; that therefore the defendant is chargeable with knowledge that she had no title except under her mortgages, and so must be held to have made the improvements as mortgagee; and that a mortgagee is not entitled to re-imbursement beyond necessary repairs.
No doubt the general rule, both at law and equity, is “ignorantia jwis hand excused,” as the courts of this state have repeatedly declared. Garwood v. Eldridge, 1 Gr. Ch. 145; Bentley v. Whittemore, 3 C. E. Gr. 366; Hampton v. Nicholson, 8 C. E. Gr. 423; Hayes v. Stiger, 2 Stew. Eq. 196. The rule, however, has not been considered universal and inflexible. Thus in Champlin v. Laytin, 6 Paige 189, 195, Vice-Chancellor M’Coun said: “ As a general rule, this court does not relieve upon the ground of a mistake in matters of law, because every man is presumed to have a knowledge of the law. * * * Yet there are cases in which this court will interfere upon the ground of such mistake. * * * As, for instance, * * * if both parties
These citations (and others of similar purport might be adduced) sufficiently indicate that in a court of equity, at least, a man is not, under all circumstances, to be regarded as fully comprehending all his legal rights and duties, so far as they grow out of facts which he knew, or with reasonable diligence might have learned. Indeed, one large branch of equity jurisprudence, the reformation of written instruments, appears to rest mainly upon an exception to such a doctrine; for if parties acquainted with the tenor of documents which they execute are to be conclusively presumed to know also their legal import, it would seem that there could be no room for the notion that the writings did not express their real intention. But constantly courts of equity reform the most solemn instruments upon the ground, not that the parties have inserted words which they meant to exclude, or omitted words which they meant to insert, but that the language does not express their agreement; that they did not put upon the terms employed the same construction as the law does; in short, that there was a mutual mistake of law, using the word ‘ law ’ in its broader sense. Weller v. Rolason, 2 C. E. Gr. 13; Green v. M. & E. R. R. Co., 1 Beas. 165, 2 McCart. 469; Wanner v. Sisson, 2 Stew. Eq. 141; Stines v. Hayes, 9 Stew. Eq. 364, 11 Stew. Eq. 654.
In this state of the decisions and dieta, it would be scarcely
In Haggerty v. McCanna, 10 C. E. Gr. 48, Chancellor Zabriskie felt the hardship of refusing assistance to a complainant who had spent his money in improving an infant’s lands under the belief that they belonged to his wife, although his mistake was one of general law,- and could not be said to have been shared in by the defendant, an infant; nevertheless, the chancellor intimated that relief would have been afforded if the defendant, instead of the complainant, had been an applicant for the exercise of equitable power. In Putnam v. Ritchie, 6 Paige 390, which was like Haggerty v. McCanna, Chancellor Walworth, while refusing compensation to the complainant, said that his claim rested upon a principle of natural equity which was fully adopted in the civil law, and which, in his own court, was constantly acted upon where the legal title was in the person who had made the improvements in good faith, and where the equitable title was in another who was obliged to resort to the court of equity for relief; the court, he says, in such cases acts upon the principle that the party who comes as a complainant to’ ask equity must himself be willing to do what is equitable.
The case of Cooper v. Phibbs, ubi supra, completely sustains the rule above enunciated. There, the father of the defendants had been entitled to an estate for life only in a fishery, but had supposed himself to be the absolute owner, and under that belief
The case before us stands upon the same footing, and the complainant should be permitted to exercise her right of redemption only on condition that she pay to the defendant the present value of the permanent improvements which she has made on the premises.
Therefore, let the decree of the chancellor be reversed; let an account be taken of the amount due the defendant for principal and interest on her mortgage, and in this account the mortgage must be regarded as not usurious, for, besides the insufficiency of the averments of the bill touching usury, we think the evidence does not prove the charge. To this amount let the taxes, water-rents and assessments, and the cost of necessary repairs paid by the defendant, with interest thereon, be added, so far as the same were not increased by the lasting improvements.
The defendant urges, also, that she should have a decree for payment of the sum which she bid at the sheriff’s sale, being the .amount of her docketed judgment. But we think this should not be accorded to her, for the reason that the docketing proceedings being wholly void, the judgment remains in the trial ■court unsatisfied and in full legal effect; her hold upon that judgment has not been impaired.
She also insists that her mortgagee, Harper, is a necessary party to the suit, and that, as the complainant has not brought him in, no decree for redemption can be made. The case, however, does not disclose whether his mortgage was on record at the filing of the bill, so as to entitle him to be joined. Dev. p. 118 § 78. If it was, the complainant must amend.
Let the record be remitted, and a decree be made in accordance with the foregoing views.
Decree vmmimously reversed.