Kimberly v. Sells

| New York Court of Chancery | Sep 28, 1818

The Chancellor.

The demurrer in this case is general, and goes to the whole bill. If the plaintiff be entitled, either to the discovery or the relief, then the demurrer, by going to the whole bill, must be overruled, for if void in part, it is void in tbto. The doctrine on this point was settled in the Court of Errors, in 1798 and 1799. (Le Roy v. Veeder, 1 Johns. Cas. 423. Laight v. Morgan, 1 Johns. Cas. 429.)

The plaintiff claims and possesses certain houses and lots, as a bona ficle purchaser and mortgagee for a valuable 'consideration,,without notice or suspicion of any defect of title, and he seeks a discovery of the grounds upon which some of the defendants are proceeding to sell that property, by execution at law against John Bedient. This claim to a discovery, rests on the fact of his being such a purchaser, in possession, under a title deduced from Bedient prior to the judgments upon which the defendants are proceeding, and that Bedient was since regularly discharged under the insolvent act, and that the sale intended would expose him to expense, and injure the character of his title.

There is much equity in the call upon the defendants to disclose the grounds of their claim; for if they are permitted to sell while that is doubtful and unknown, who would buy 1 Probably, no person would be induced to bid, but on mere speculation, or for a nominal sum. If the plaintiff was duly apprized of the claim, and on what it rested, he might be induced to pay the demand under the judgments, in order to save himself from total loss. But neither he, nor any other person, can exercise their judgments with any discretion on the subject, so long as this new claim of the defendants is not known or understood. The discovery seems to be necessary to render the sale beneficial to the parties concerned, and to prevent injurious speculations upon the property. The plaintiff is admitted, by the demurrer, to be an innocent purchaser. for a valuable consideration, without notice; and he has pretensions to the discovery which Bedient, or any party t0 the original transaction, cannot advance. The question, at present, is not on the trial of title. It is only for a discovery of the nature and grounds of that title, and the discovery may, perhaps, satisfy the plaintiff of its goodness and validity, or it may present a case of legal title to be tried and established at law, before relief can be obtained here.

This case does not appear to come within those decisions which have refused such a discovery. The plaintiff is not a mere stranger, seeking, by a fishing bill, the discovery of another’s title, nor a rival claimant standing only on equal ground. The cases of Adderley v. Sparrow, (Hil. 1779. Reddesdale's Tr. 154.) and of Buden v. Dove, (2 Vesey, 445.) are very briefly reported, without any detail of facts; and they have, probably, no application to the special circumstances of this case, in which a particular equitable claim to discovery is shown from the character of the plaintiff, as a bona fide purchaser and possessor, and the proceeding of the defendants in attempting to sell the land of the plaintiff as the land of another.

The case of Metcalf v. Harvey, (1 Vesey, 248.) fully authorizes the present bill. In that case the bill was not only that there might be an interpleader, but also a discovery of the defendants title to the possession of an estate; and it contained a prayer for an injunction to stay proceedings in ejectment on the part of the defendant. As to the prayer for the injunction, the Chancellor observed, that “ The question came to this, whether any person in possession of an estate as tenant, or otherwise, may not bring a bill to discover the title of a person bringing an ejectment against him, to have it set out and seen, and he was of opinion he might, to enable him to make a defence in ejectment.” In that case, the defendant demurred to the whole bill for discovery as well as relief, and as the plaintiff was held to be entitled to the discovery, the demurrer was overruled.

It is not necessary, at present, that we should go the whole length of this decision, but it warrants,-and more than warrants, the bill in this case. So, in a much later case, (Weller v. Smeaton, 1 Cox, 102.) the bill stated the plaintiff to be lessee of a mill, and that the defendant had erected works on the water above, which obstructed the mill, and the prayer was, that the plaintiff might be quieted by injunction. There was a demurrer to the relief but the case states that “a full discovery was obtained.”

Without, therefore, giving any opinion, at present* as to the relief, I conclude that the plaintiff is entitled to an answer to the bill, and the demurrer is, consequently,- overruled.

Demurrer overruled.