Moffatt v. Shepard

2 Pin. 66 | Wis. | 1847

IeyiN, J.

This case is brought here on an appeal from the decree of the district court of Milwaukee county, and, inasmuch as it is intimately blended with another case (brought here also by appeal), a bill of review in the same court, by the defendants Shepard and Bonnell against Moffatt, the complainant, it is thought most expedient to examine the two cases together so far as it may be done..

It appears that some time previous to the commencement of either of the cases brought to the attention of the court by the parties, William B. Moffatt, the complainant, placed in the hands of John M. W. Lace certain property and eifects to dispose of as Ms agent; that said Lace afterward purchased the lot in question and partly paid for it with, the said property and effects, and procured a deed of it to be made to John W. Whiting; that afterward the said Moffatt commenced a suit in equity in the court aforesaid against said Whiting, to secure to himself the benefit of the resulting trust; upon which suit, not only was issued and served on the said Whiting the process of subpoena, but also an injunction enjoining and restraining him and his agents and attorneys from selling, or in any manner incumbering said lot; that after the service of said process, and during the pendency of said suit, Lace, by a power of attorney from Whiting, conveyed by deed the premises to the defendants Shepard and Bonnell; that afterward, before the court in vacation, the said MoffoM and Whiting agreed between themselves that Moffatt should take a decree for the whole of the premises and then convey back to Whiting twenty-three feet thereof, which agreement being produced before the chancellor, and all things therein being complied with, it was so decreed accordingly' Afterward the said Moffatt, in order to remove the cloud and clear up the doubt which hung over his title by reason of the deed from Whiting (by his attorney Lace) to Shepard and Bonnell, filed the bill in this cause against them to have the said deed declared null and void, and they be decreed to release the premises to him, which, upon the hearing of the case, was decreed ; that previous to said decree, and about the time when said Shepard and Bonnell answered, they filed a bill of review in the case of Moffatt ». Whiting. The court refused to review that case, and decreed accordingly. Upon these proceedings, both cases are brought here, and in this connection are to be examined. In relation to the last bill and decree, it is insisted that the complainant’s bill ought not to be entertained, for the reason that they, Shepard and Bonnell, brought themselves voluntarily into the interest which they assert and claim, not only with a knowledge of the pendency of the suit between Moffatt and Whiting, but in open violation and contempt of the injunction issued therein. That they had a knowledge of the pendency of that snit, and of the existence of the injunction, we cannot for a moment donbt, and they cannot be relieved from the stringent application of the law in such cases. That Moffatt, judging from what appears in the cases before us, was entitled to the benefit of the resulting trust there can be no doubt; and that he might elect, under the circumstances, to hold the premises as a security for his interest, or take the proper part in discharge thereof, there is little doubt. 2 Story’s Eq., §§ 1258, 1259, 1260, 1261, 1262; Phillips v. Cramond, 2 Wash. C. C. 441.

Shepard and Bonnell having voluntarily placed themselves in the interest which they assert, in the face of the suit then pending and in contempt of the injunction, can claim no protection therein, and must necessarily have the review refused and their bill, so far as it relates to Moffatt, dismissed at their costs, which is so ordered. In the case of Moffatt v. Shepard and Bonnell, prosecuted by Moffatt to clear his title acquired under the decree of the court, in the case of Moffatt v. Whiting, of the doubt which the defendant had thrown over it, the court is clearly of opinion that the facts and circumstances authorize the relief asked for, and among others, for the same reason given for refusing the review sought by the defendants. We are, however, of opinion that the district court, in granting relief, went too far in the decree, to no other extent, however, than a seeming inconsistency of one part of the decree with the other, in this: the decree rendered null and void the deed from Whiting by John M. W. Lace, his attorney, to Shepard and Bonnell, dated April 30, 1845, and then required of them to execute a deed for a part of the premises included in the deed thus declared null and void, to the said Moffatt. The court should not have declared the deed void, but it should have decreed a conveyance of all the interest which Shepard and Bonnell had acquired by that deed in’ the-premises, to be made to the complainant Moffatt (so ffir as it affects his interest), with a special warranty, and it must now be so done. And it is decreed accordingly.

“ This canse having come to a bearing on tbe pleadings and tbe proofs (having been argued by counsel), and tbe court having duly considered the same, with tbe stipulation on file, it is adjudged and decreed that tbe said Clarence Shepard and James Bonnell do, within thirty days, execute and deliver to tbe said complainant, William B. Moffatt, a proper deed of conveyance, properly executed, witnessed and acknowledged, with special warranty against their own acts and all persons by, through or under them or either of them, of twenty-two feet, undivided, in the said lot number four, in block number four, in the third (formerly east) ward of the city of Milwaukee, and that they pay the costs of this suit.”