80 Va. 331 | Va. | 1885
delivered the opinion of the court.
The real matter in controversy is in respect to the ownership of a large quantity of cord wood, cut and remaining on the tract of land in Chesterfield county, known as “ Brander,” and belonging to the estate of the late D. E. Porter, of said county.
The facts, briefly stated, are these: On the 14th day of October, 1881, David E. Porter and L. W. Oheatham, as partners, entered into a contract, under seal, with Jeremiah Steelman, of New York, to saw and deliver on the line of the Brighthope railway, not above "Winterpoek, to the said Steelman, ten thousand or more cords of first class pine wood, with certain specifications as to size and quality; the wood to be delivered ricked on the line of said railway by the 31st day of December, 1882; and when delivered, ricked as aforesaid, to be measured and received by Steelman or his authorized agent, as stipulated in the contract, and to be paid for as received and removed, at the rate
Under this contract (Cheatham having disclaimed any interest therein, and having been relieved therefrom,) Porter proceeded to cut and put in pens large quantities of wood on the tract of land owned by him, called “Brander,” and on an adjacent tract, of which he was part owner, and on other tracts in said county where he purchased the privilege of cutting wood. It does not distinctly appear how much wood in all was cut by Porter under this contract, but the fair inference is, that as late as the last of June, 1882, the quantity was much less than the 10,000 cords stipulated for in the contract. At this period (the last of June, 1882,) Porter found himself financially embarrassed and unable to fulfill his contract with Steelman, so he approached Geo. E. Robertson, the duly authorized agent of Steel-man in this and other wood contracts in that section, and admitting that he had no money, and could not deliver the wood according to his contract, but expressing the desire on his part to pay back to Steel ljian the $5,000 advanced to him by the latter, proposed to sell to Steelman the wood cut on the Brander tract, saying at the time that the wood on the other tracts was encumbered, so that he could not sell and deliver it where it was in the forest, as he proposed to do in respect to that on the Brander tract. . Thereupon, as .agent, Robertson, at the request of Porter, purchased the wood on the Brander tract for his principal; the agreement being, that Steelman, or Robertson for
This proceeding was had under these circumstances:
It seems that on the 5th day of June, 1882,1). E. Porter executed to James M. Gregory, trustee, a deed conveying, with other property, the said Brander tract of land, with all the wood then or thereafter to be cut on same, in trust, to secure to J. S. Moore, of Richmond, a debt of $1,500, due by note of even date with said trust deed, and payable on demand. This trust deed was admitted to record in Chesterfield county, on the 5th day of August, 1882, the day after the death of Porter. Steelman denies any notice of the execution of this deed at the time of his purchase of the wood in question, and there is in the record nothing to show that he had any notice of its existence until the recordation thereof.
On the 2d day of December, 1882, said trustee, J. M. Gregory, and the beneficiary in said trust deed, J. S. Moore, presented to the Hon. Edw. II. Eitzliugh, judge of the chancery court of the city of Richmond, their bill, setting forth their case, and praying for an order to restrain the said Steelman and his agent, the said Robertson, and all other persons acting under their authority, or the authority of either of them, from removing, disposing of, or in any manner interfering with the cord wood on the Brander tract of land, or which has been carried
The injunction was granted by Judge Fitzhugh, according to the prayer of the bill. From the answer of Steelman, in the record, it seems there was a previous injunction granted by the judge of the circuit court of Chesterfield, which on motion had been dissolved prior to the injunction awarded by Judge Fitz-hugh. In their bill, the complainants set out said trust deed, and assert their right to the cord-wood on the Brander tract of land at the date of said trust deed, June 5,1882, and allege the due appointment and qualification of Fannie L. Porter, as ad-ministratrix of said 1). E. Porter, dec’d; that at the time of the execution of said trust deed, there was upon the said Brander tract of land about 3,000 cords of wood belonging to and in the possession of said I). E. Porter, and was part of the wood conveyed by said trust deed, and that there is no cord-wood on said tract other than what was conveyed by said trust deed; that the said trustee has been called upon to execute said trust, as required by the terms of the deed, and is informed, believes and charges, that Geo. E. Bobertson, as agent of said Steelman, is removing said wood from said Brander tract, and shipping same to Steelman, in New York, contrary to the rights of complainants under said trust deed; and that complainants are informed that Steelman and his said agent are pretending that said Steel-man purchased said cord-wood from 3). E. Porter in his lifetime, and therefore owns the same. The bill further alleges, that the said Steelman acquired no title to or property in said wood, or any part thereof, by reason of said purchase, or any purchase made by him of said Porter during his lifetime, and that the title thereto is in the said trustee; that the cord-wood remaining on the Brander tract at the death of Porter, is far more than sufficient to pay off and discharge the claim of said Steelman ; and that he has no right to disturb, remove or appropriate the entire lot of wood, or even any part thereof, until the rights and interests of complainants and said Steelman have been adjudi-
Robertson demurred to the bill, and disclaimed any interest in the subject of controversy'.
Steelman demurred to the bill, and answered the same promptly, and gave notice that he would move on a day named to dissolve the injunction.
Respondent, in his answer, then calls attention to the fact that said deed of trust, which bears date June the 5th,'1882, was not recorded until the 5th day of August, 1882, the day after the death of said Porter, the grantor. And in response to the. bill, the respondent denies that he or his said agent had any knowledge of said deed of trust, or of any claim on said wood by J. S. Moore, or by said trustee, Gregory, or any one else, until the 5th day of August, 1882, when for the first time the deed was admitted to record; says it is true, as alleged in the complainants’ bill, that his agent, Robertson, was removing and shipping said wood to respondent in New York, but insists upon his ownership of the wood, and his right to ship and market it; denies the statement in the bill that he has no title :and right to said wood; denies also the statement that the cord wood remaining on the Erandor tract at the death of said Porter is more than enough to pay off liis claim on the amount advanced to Porter, and says the amount of wood so remaining on said tract was about 1900 or 2000 cords, which, in the woods, was worth about $1.65 per cord, which would make a sum far less than $5,000; and, directly in response to the bill, shows how he acquired title to the wood, and how the same was paid for, by filing with his answer five drafts drawn on respondent by Porter and Cheatham, and paid by respondent in accordance with the provisions of said contract of the 14th day of October, 1881. In short, the answer separately and in detail denies in the most direct and emphatic terms, each and every allegation in the bill touching respondent Steelman’s right to said wood; and respondent insists that a court of equity cannot undertake, in a case like this, to pass upon the rights of property between conflicting claimants, which is peculiarly the province of a court of law.
I. It is clear that a court of equity has nq jurisdiction of the case as made by the bill. Personal property, a lot of cord wood, as to which there are conflicting claimants, is the subject of controversy. For the settlement of such a question a court of law is the peculiarly appropriate tribunal. The plaintiffs claim the subject of controversy under a trust deed executed by Porter in his lifetime, but not recorded until after his death; and in the bill it is stated that the defendant, ¡Steelman, claims the same subject under a purchase by him from Porter during his lifetime; and the hill, though styling Steelman’s claim a pretended one, does not charge that Steelman had notice of the unrecorded trust deed at the time of his alleged purchase, or at any time during Porter’s life, and prior to the recordation of said trust deed. There is thus presented by the hill, a ease of conflicting claims to personal property, as to Avhich the remedy at law is complete.
In 1 Barton’s Chy. Pr. 430, it is said, “As the general jurisdiction of com’ts of chancery is founded in a lack of remedy in the courts of law, so especially is relief given by means of injunctions, because there is none, or no adequate remedy at law, and because compensation by way of damages will not be suffi
The bill in this case, in a general way, alleges, among other things, that Steelman’s actings and doings in respect to the subject of litigation will result in irreparable damage and injury to the plaintiffs. This is not enough. There must be something peculiar in the case, so as to bring the injunction under the head of quieting possession or preventing irreparable mischief. Livingston v. Livingston, 6 Johns. Chy. R. 497. The hill here makes no such ease. Moreover, the facts which show the irreparable nature of the injury must be set out in the bill, a mere general averment is not sufficient. Chesapeake Ohio Co. v. Young, 3 Md. 480. The injury complained of must be such that it is not susceptible of compensation in damages at law. Jerome v. Ross, 7 Johns. Chy. R. 315; Hawley v. Clowes, 2 Johns. Chy. 122. Here, unquestionably, a case is stated by the bill, in respect to which there is no obstruction to the remedy at law, which is ample. Indeed, nothing to the contrary is suggested; and it would seem that the bill itself is a sufficient refutation of the claim to equitable jurisdiction relied on in the argument.
H. It necessarily follows that the injunction was properly dissolved. The settled doctrine is, that where a motion to dissolve is on the bill and answer, and the answer denies all the equity of the bill, the injunction is dissolved, of course, except when from the bill and answer, special reasons may appear for continuance. 1 Barton’s Chy. Pr. 414; Hoffman, v. Livingston, 1 Johns. Chy. E. 211; Mintun v. Seymore, 4 Johns. Chy. R. 497; Hayzlitt v. Mc William, 11 West Va. 464; Deloney v. Hut-
Here, tire answer of Steelman, in the most, explicit and direct terms, denies each and every material allegation in the bill, and the plaintiffs utterly fail to sustain their bill by any relevant auxiliary evidence. Under the well settled law, no course was left open to the court but to dissolve the injunction. On the other hand, on the motion to dissolve, Steelman introduced the affidavit of Geo. E. Robertson, which, to the fullest extent, sustains said answer. This affidavit is for the first, time objected to here, on the ground that the affiant was the agent of Steelman, and made the purchase of the wood relied on by Steelman, and that he was thus a party to the transaction, and not competent to testify, Porter, the other party, being dead. It is obviously unnecessary to decide this question, as, independent of this affidavit, the injunction was properly dissolved.
In any and every view of the case, we are of opinion that the decree appealed from is plainly right and must be affirmed, with costs to the appellee Steelman.
DECREE AFFIRMED.