69 Ala. 486 | Ala. | 1881
Lead Opinion
The result of the decision in Lehman, Durr & Co. v. Collins, at present term, ante, 127, is, that the appellants, by the decree of the court of chancery, letting them in to redeem the premises in controversy, acquired the title and estate of William T. Shook, which he had by mortgage conveyed to the Mobile Life Insurance Company. The conveyance of the premises to his daughters was executed prior to the mortgage, which was a security for a debt contemporaneously created; and the fact is, that the mortgage was executed with, the knowledge and with the consent of the daughters, verbally expressed, intending that it should have precedence of the conveyance to them. We do not deem it necessary to examine closely the evidence, and determine whether the conveyance to-the daughters is free from fraud, founded on a valuable consideration, and capable of being enforced against the creditors, of the grantor. Conceding its validity, the failure to- record it until more than three months after its execution, .and until the mortgage to the Life Insurance Company had been recorded,, renders it void and inoperative as against that mortgage. — Saffold v. Wade, 51 Ala. 214.
The only right or equity the daughters Could have asserted,, was the redemption of the premises from the mortgage. The-sale under the power in the mortgage was the equivalent of a decree of strict foreclosure; it cut off and barred the equity of redemption, uniting in the purchaser the legal estate vested in the mortgagee, and the equity of redemption residing in the mortgagor, and in the daughters as his alienees.— Childress v. Monette, 54 Ala. 317. All that remained to the mortgagor was-the right or privilege of redemption conferred by the statute;, .a right to re-purchase the lands, and to be restored to the estate
The purchaser at the sale under the mortgage succeeded to all the estate of the mortgagee, and to all liis rights and equities, as well as to the equity of redemption the mortgagor or his alienee could have asserted. He was in a large sense the assignee of the mortgagee, substituted to his place, acquiring his rights. The appellants, by the redemption, by operation of law, succeeded to the place of the purchaser from whom they redeemed, and are entitled to stand upon and maintain all the rights he could have asserted. — Keeling v. Heard, 3 Head (Tenn.), 592. They are in possession, and can successfully defend the action of ejectment the daughters have commenced against their tenants. The mortgage, the source of their title, having been recorded before the deed to the daughters, and three months having elapsed after the execution of the deed before its registration, the statute renders it void as against the mortgage. — "Code of 1876, § 2166.
A court of equity is reluctant to interpose by injunction •against an ejectment at law, founded on a legal title the plaintiff is fairly proceeding to establish. An equitable case, a case •of purely equitable cognizance, must be made to appear, before the court will interpose to restrain the proceedings in the action. Kerr on Injunctions, 26. If the action of ejectment was not pending,- the equity of the appellants would be undoubted. 'The deed to the daughters, though void as against their title, is prior in date, apparently the older and better conveyance, and is of record. A purchaser from the appellants, tracing the title, would find it, and its invalidity not appearing on its face, resting upon extrinsic facts, it is evidént a sale could not probably be effected for the fair value of the premises. Whenever a deed or other instrument exists, not void upon its face, which may be vexatiously or injuriously used against a party having the rightful possession of real estate, throwing a cloud or suspicion over his title or interest, and he has not at law a plain and adequate remedy for relief against it, the constant practice of a court of equity is to intervene, and' remove the cloud -or suspicion — when the suspicion is reasonable — by directing that the instrument be delivered up and cancelled, or by making the de
The pendency of the action of ejectment ought not to arrest the jurisdiction of the court. If that action is prosecuted diligently, there can be, it is true, but one result, a verdict and judgment for the appellants. Its continued prosecution rests-wholly in the discretion of the plaintiffs- — they can at any time abandon or dismiss it, and renew it at any time, until the statute of limitations has perfected a bar. If they elect to continue its prosecution, the verdict and judgment in favor of the appellants would not bar a second action. Two judgments in favor of the defendant in an action of ejectment, putting in issue the same title, not one, operate a bar to a subsequent action. — Code of 1876, § 2969. The pendency of the action is-rather an additional reason for the interference of a court of equity, than an objection or an obstruction to its jurisdiction. Woods v. Monroe, 17 Mich. 238. There is the greater necessity for quieting the title and the possession, and removing the cloud which affects its value and security. If the court should
The decree- of the chancellor must be reversed, and the cause remanded to the Court'of Chancery, with instructions to render a decree enjoining the action of ejectment, and declaring the conveyance of the premises, executed by William T. Shook to his daughters, Laura E. and Iiester E., bearing date June 10th, 1873, of record in the court of probate of Etowah county, void and inoperative as against the title of the appellants.
Concurrence Opinion
I concur in the conclusion reached by the Chief Justice in this case, without committing myself to the views expressed in his opinion. The bill is filed by a complainant, who claims to hold the legal title to certain lands, and its purpose is to cancel a deed held by two of the defendants on the same lands, on the ground that the instrument was void for framd, and was a cloud on the title of complainants. If there were no averment of fraud, it may be seriously questioned whether such a bill would lie, or ought to be maintained. But when an instrument purports on the face of it to be a valid conveyance, so as to constitute a cloud on the title of the property conveyed, and has been -fraudulently executed, as seems to be the case here, I am of opinion that equity will and should take jurisdiction, on the ground that the remedy by ejectment at law is not full and adequate. A court of law is incompetent to .sweep away the deed which clouds complainants’ title, so long
Dissenting Opinion
dissenting. — Each of the parties to this suit claims under a title strictly legal. Lehman, Durr & Oo. are in possession, and the Shooks instituted an action of ejectment to dispossess them, claiming under a legal title. The title of Lehman, Durr & Co. is legal. The Shooks showed no disposition to dismiss the action of ejectment, or to relax in its prosecution. To recover in that action, they must show a paramount legal title. If the title of Lehman, Durr & Oo. is the better, then the Shooks will fail in the ejectment suit. So, the present contention presents the simple, naked question of the trial of strength between two rival legal titles, for the trial of which an action at law had been commenced, and was being prosecuted, by the claimant out of possession, against the claimant in possession. In this stage of the controversy, Lehman, Durr & Oo. filed a bill in chancery against the Shooks, prayed for and obtained a temporary injunction against the action at law, and sought to have .the question of title settled by a decree of that court. The chancellor dismissed the bill, and my brothers have reversed his decree, and granted the relief prayed. The bill, seeks no discovery, and no removal of any obstruction to a fair test of the title in the ejectment, suit. To make the case still more clearly one of legal cognizance, the opinion of the majority of the court declares, and reaffirms what was decided in the case of Lehman, Durr & Co. v. Collins, at the present term, a/nte 127, that the legal title of Lehman, Durr & Co. is superior to that of the Shooks. So, the case is narrowed down to this: Can the powers of the Chancery Court be successfully invoked by one in possession of real estate, holding under a title legal in form, against another who also asserts legal title to the same lands, and who is asserting that title by suit in ejectment, and tins, before there has been any verdict or judgment pronouncing upon the validity of the respective titles ? And, in such case, will an injunction be awarded, arresting the action of ejectment, and transferring the trial of these legal titles to the Chancery Court? And is the prayer in shell bill to have the adversary’s title declared subordinate, and decreed to be delivered up and cancelled, a sufficient equity to displace the common right of all men to have their legal rights determined before law forums, and their ■contested legal demands tried by a jury of their country?
As I understand the opinion of my brother, the Chief Justice, he does not gainsay the principle stated above. He contends, however, that Lehman, Durr & Cd., the complainants in this suit, are in possession, and, therefore, they meet the required conditions for the maintenance of this bill. The answer to this is, that the Shooks had already commenced their action and were prosecuting it, and hence the reason of the rule had failed in this case. The rule itself being exceptional and quiatimet, should it not also cease when the reason on which it rests ceases to exist? But, says the argument, the Shooks may dismiss their ejectment suit, and thus leave Lehman, Durr & Co. without remedy, save in chancery. A sufficient answer to this is, that they have not done so;' and the present bill is framed, not in the fear that they will dismiss their suit, but to enjoin them from prosecuting it. Jurisdiction is predicated of facts averred, not of possibilities, or events that may happen. “ Sufficient unto the day is the evil thereof.”
But how stands the question on principle? A few authorities hold that one out of possession, but claiming ,a legal title, may file a bill to remove the cloud his adversary’s title creates, to have his title quieted, and to be let into possession. — Almony v. Hicks, 3 Head, 39; Bunce v. Gallagher, 5 Blatchf. 481; Thompson v. Lynch, 29 Cal. 189. We have declined to follow those cases. — Smith v. Cockrell, supra, and see other cases cited supra. How, the ruling of my brother, the Chief Justice, is, that, although by the Shooks’ suit in ejectment they have removed the principal ground on which courts of equity entertain bills to remove clouds from title — namely: that being in -possession, the complainant can maintain no suit at law to test the title — yet, the right to have the adversary title delivered up and cancelled furnishes a special equity, which authorizes him to go into chancery to obtain foil and adequate relief.
If this furnish a special equity, which will uphold a bill by the claimant who is in possession, why will it not equally maintain a bill by one who asserts legal title, but who is out of possession ? If the exercise of such power is necessary to give adequate and complete redress to the litigant in posession, why is it not equally necessary to give adequate relief .to his adversary
In what is said above, I am dealing with legal titles. If the plaintiff’s claim, or the defendant’s defense be equitable, or if either claim rest on an estoppel in pais, this gives the court of chancery jurisdiction to inquire of and make available such equitable claim or defense. — 1 Brick. Dig. 627; Ib. 796, § 7; You v. Flinn. 34 Ala. 409. And there may be special equities, which would give the chancery court jurisdiction, in cases other than these.
It is doubtful if what is stated above does not conflict to some extent with some of the utterances found in Ray v. Womble, 56 Ala. 32. To that extent, I desire to express my disapprobation of that case. See also Lockett v. Hurt, 57 Ala. 198. An expression stated arguendo in Peirsoll v. Elliott, 6 Pet. 95, goes somewhat to sustain Lockett v. Hurt. I express no decided opinion on the question there raised. Should the question come again before us, I think section 2969 of the Code of 1876, should be considered in its bearings on the question decided in Lockett v. LLivrt. I only throw out this suggestion, without intending to intimate an opinion upon it.
My brother, Somerville, as I understand his views, does not differ’ with me in what is said above. He at least expresses no dissent from them. The bill of Lehman, Durr & Co. charges that the title, under which the Shook ejectment-suit was brought, is fraudulent as against them. I think it may be conceded this charge is supported by the testimony. Following his views, as expressed* in his dissenting opinion in Smith v. Oochrell, supra, he holds that this fraud furnishes a special equity, which will uphold the present bill. In that case I expressed my non-concurrence in his views, and the Chief Justice fully concurred
In my opinion, the decree of the chancellor ought to be affirmed ; affirmed on principle, and affirmed as the logical result of our differing opinions. . •