16 Ga. 398 | Ga. | 1854
By the Court.
delivering the opinion.
The only question in this ease is, will a Court of Chancery
None of the cases cited, either from our own reports, or from the decisions of other Courts, are exactly in point. All of' thorn relate to legal defences, which might have been made available in a Court of law; whereas, the ground of resistance to the recovery at Law here is, a pure equity which could not have been set up at Law. And for not arresting the action of ejoctment, before judgment and filing a bill for the establishment of the defendant’s title, to-wit: a deed from Risdon to William Smith, it is insisted that the complainant comes too late, now, to get an injunction against the ejectment, until a decree can be had.
And after reciting the cases of Foster vs. Wood, (6 Johns. Ch. R. 89); and the Marine Insurance Company of Alexandria vs. Hodgson (7 Cranch 332); and Truly vs. Wanger et al. (5 Howard, 141), these, annotators continue—
Upon a proper case being made, a Court of Equity will interfere to arrest the proceeding at Law, at any stage of. it. Thus, an injunction is sometimes granted to stay trial; sometimes, after verdict, to stay judgment; sometimes, after judgment,, to stay execution; sometimes, after ^execution, to stay the money in the hands of the Sheriff, if it be a case of a fieri facias ; or to stay the delivery of possession, if it be a writ of possession. (3 Wooddes’ Lectures, 56, pp. 406, 407, 412, 416. 1 Mad. Ch. Pr. 109, 110. Eden on Injunctions, ch. 11, p. 44.)
This is so complete, an epitome of the whole doctrine upon •this subject, as deducible from the opinions of Chancellor Kent, in the case in Qth Johnson, and of Chief Justice Marshall, in .7th Crunch, and of Mr. Justice (frier, in 5th Howard, as well as the general current of authorities, that we consider it useless to extend the discussion. See, further, 5 Johns. Ch. R. 122; 1 S. & M. Ch. R. 524 ; 13 Ala. 198, 798; 7 Porter, 549; 8 S. & M. 131; 4 Iredell’s Eq. 97; 4 Johns. Ch. R.
The relief prayed for by this bill, is a decree for a deed to be executed by the administrator of Risdon .Smith, to the vendee of William Smith. The defence is not only purely equitable, but one which could not, by possibility, have been made available as a legal defence. Was the defendent, then, in ejectment, bound to arrest the proceeding at Law, before trial; and failing to do so, does he come too late to obtain the intervention of a Court of Equity- after judgment? The cases say not; and we know of no such rule as that sought to be established by the Counsel- of Pollock.
The only case which he adduces in support of his position, is the over-ruled opinion of Vice Chancellor Whittlesey, in Paterson vs. Bangs, (9 Paige, 627.)
In the first place; I would remark, that the only question before the Vice Chancellor, there, was whether a complainant, who was sued at Law; and has a legal defence to such suit, and who only needs the aid of a Court of Chancery to obtain a discovery, to enable him to establish such defence, must come into the Court of Chancery for his discovery, before the trial at Law? And as a general rule, the Vice Chancellor held, and we think, as a question of diligence, very properly, that he was.
But waiving this criticism, it will bo seen that the opinion of the Vice Chancellor is qualified by this important idea: the complainant must know that his defence is not available at Law, and that he can only succeed, in a Court of Equity, upon a bill for relief, and neglects to file such bill, in order that such negligence will be imputable, as will exclude the party from equitable relief.
In the case before us, it is evident that, the complainant was ignorant that his defence-could nojb be made available at Law. He believed, and did hot doubt the fact, until he had the judgment of this Court to the contrary, that the cancellation or destruction of the unrecorded deed from William Smith, the fa
But it is insisted that the plaintiff in ejectment having prevailed at Law, that he should be allowed the benefit of his judgment; and that his writ of possession should not be stayed, which is fructus finis et effeetus legis ; especially, as the defendant can renew the suit, to recover the land and file his bill in aid of his Common Law action.
Here, every fact charged in the bill, is admitted, by the demurrer, to be true. It is admitted that the original deed of ■gift to the defendant, from his father, was made in contempla■tion of death; that William Smith having partially recovered, •entered into an agreement with his son to re-purchase the land, and paid him therefor a full consideration. That the first deed never having been recovered, the parties were advised that a recognizance was unnecessary; and that the destruction of the instrument would revest the title in the donor; and that accordingly, the deed of gift was destroyed; that bills of sale were executed and delivered, by William to Risdon Smith, for the property which was given in exchange for the land, which was taken possession of by Risdon Smith, who left the land in
I ask, with such admissions as these, would it not be against conscience to allow this judgment at Law to be enforced ? To oust the defendants of their possession, and to put them to the expense and inconvenience of re-commencing, de.novo, the litigation at Law ? And moreover, with such admissions, on the part of Pollock, the administrator of Risdon Smith, does it lie in his mouth to object, that due diligence has not been used, on the part of the defendants, in asserting their title ?
He had better answer the bill. It is sur-charged — overloaded — with equity..