Roberts v. Anderson
2 Johns. Ch. 202
New York Court of Chancery
1816
Check Treatment
The Chancellor.

The affidavits are not allowed to be read in support of the answer on this motion. (Eastburn & Downes v. Kirk, 1 Johns. Ch. Rep. 444.)

*204[ * 205 ]

*203Both parties deduce title to the premises in controversy from William Griffith, and the only point is, whether the two deeds from Griffith to Sarah Johnson, under whom the defendants set up title, were fraudulent and void. This question of fraud was not tried ; and from the history of the ejectment suit, as stated in the pleadings, it would seem that it could not be tried, as the recovery was placed entirely on the ground that the defendant at law was tenant to the new defendants, and so concluded from setting up this defence. But the fraud, as charged, is a proper and familiar head of equity jurisdiction, and unless the answer be full and satisfactory, the injunction, if right in the first instance, ought to be retained until the hearing. The injunction was issued after the verdict at law, to restrain the defendants from proceeding to execution; and it was certainly a proper restraint until the question of fraud was disposed of, for on that depended the question of title between these parties. All the denial contained in the answer is, that the defendants were not privy to any fraud, *204and were honafide purchasers, under a judgment and execution against Sarah Johnson. If she had no title, they had none; and they aver that they believe her title was g°°d, because they do not know or believe that the conveyances from Griffith to her were fraudulent. This is leaving the question of fraud as unsettled as before the answer came in. It is true, the defendants may have given all the denial in their power, but the fraud may exist *notwithstanding, and consistently with their ignorance, or the sincerity of their belief. It appears to me, then, that until the cause is brought to a hearing, and decided on the merits, the possession ought not to be changed, and that the case does not fall within the reason of the general rule, that an injunction is to be dissolved when an answer comes in and denies all the equity of the bill. In some particular cases, the Court will continue an injunction, though the defendant has fully answered the equity set up. (Wyatt’s P. R. 236. 2 Fes. 19.) The granting and continuing of the process must always rest in sound discretion, to be governed by the nature of the case.

Motion denied.