66 F. 799 | 6th Cir. | 1895
Having stated the case as above,
delivered the opinion of the court.
Although the demurrer was sustained in the circuit court upon the one ground stated in the opinion of that court, the question for us is whether it should have been sustained for any of the causes therein shown. There can be no doubt that, upon the facts stated in the bill, the appellee, Hutsell, was guilty of a gross fraud upon the complainant, and that an action a,t la,w would lie to recover the damages occasioned thereby. It was held by the court below that that was an adequate remedy, and hence that a suit in equity could not be maintained; citing Ambler v. Choteau, 107 U. S. 586, 591, 1 Sup. Ct. 556, and Buzard v. Houston, 119 U. S. 347, 354, 7 Sup. Ct. 249. The only ground we can see for thus joining Hutsell, and the cause of action against him, in this litigation, is that the security of the note and mortgage of Buchanan and Crabbs may first be liquidated in order to ascertain the extent of the damages arising from Hutsell's alleged fraud. But the value of the security could be ascertained for the same purpose in a suit at law with equal facility. No discovery is here prayed, and answer under oath is waived. The case is therefore, as against Hutsell, a mere graft of a strictly legal cause of action upon a bill in equity, the primary purpose of which is to foreclose a mortgage. We do not think the legal controversy can be properly litigated in such a suit. 1 Beach, Mod. Eq. Prac. § 117; Fougeres v. Murbarger, 44 Fed. 292; Williams v. Jackson, 107 U. S. 478, 2 Sup. Ct. 814. It is quite true that fraud is a ground upon which a court of equity is accustomed to afford relief, and this in a great variety of circumstances. But, in doing so, it respects the rule that its jurisdiction should not be exercised where there is an adequate remedy at law. That is the present case. No preventive relief is prayed, and nothing corrective other than a mere judgment for damages upon, a transaction which is passed and confirmed. Parkersburg v. Brown, 106 U. S. 487, 1 Sup. Ct. 442; Buzard v. Houston, 119 U. S. 347, 7 Sup. Ct. 249.
In the case of Smith v. Bourbon Co., 127 U. S. 105, 8 Sup. Ct. 1043, a judgment creditor, upon the return unsatisfied of his execution against his insolvent debtor, filed his bill against the debtor, a railroad company, and the county of Bourbon, from which, as was alleged, there were certain bonds due, but not yet delivered to the defendant railroad company. The object of the bill was to compel the railroad company to assign to complainant its claim for the bonds, and to compel the county to deliver the bonds to complainant in satisfaction of his judgment. It was held that the relief prayed for against the railroad company might be granted, and that it might be compelled to assign its claim to complainant with
Here are several independent causes of action, each of which is sufficient in itself to support a separate suit. Some of the defendants are concerned with some of the causes of action, and not with others, while others of the defendants are not concerned with those which involve the former. Besides this, as to some of the causes of action, the defendants therein are entitled to have the issues tried by a jury, of which right they would be deprived if the complainant were permitted to draw them all into a court of equity. That is the predicament of the defendant Hutsell. The rule .against such practice is well established. Campbell v. Mackay, 1 Mylne & C. 603; Brown v. Deposit Co., 128 U. S. 403, 9 Sup. Ct. 127; Newland v. Rogers, 3 Barb. Ch. 432; Association v. Denton (recently decided in this court) 65 Fed. 569; 1 Daniell, Ch. Prac. 335. In the case of Tyler v. Savage, 143 U. S. 79, 12 Sup. Ct. 340, much relied on by the complainant, no objection was taken to the bill until the case ras brought to the hearing, and much stress is laid upon this circumstance in the opinion. The defendant Tyler was an officer in the corporation, and had been the efficient agent in perpetrating the fraud complained of. The bill prayed for a discovery, and Tyler was a necessary party for the obtaining of such relief. Here no discovery was sought by the bill, and the objection was taken seasonably and in the proper mode. We are of the opinion that there is in this bill such misjoinder of causes and parties as to render it subject to the objection of multifariousness.
The complainant claims that its right to come into equity is supported by the fact that it has lost certain instruments which it deems necessary to have set up and established as the basis of its recovery. The "instrument,” so called, on which it charges Hutsell, and which is alleged to be lost, is not any instrument of title to corporeal property, nor a bond or note, nor, indeed, a contract in writing inter partes, whereby an obligation was assumed, but a mere piece of written evidence upon which, with other proof, the complainant seeks to charge the defendant with a tort. This is not an instrument such as a court of equity undertakes to establish on an'allegation of its loss. The jurisdiction of equity in this class of cases has been extended beyond the cases of instruments under seal, bf which profert could not be made at common law, and includes those of lost notes and other writings obligatory, in which the court may require the complainant to give an indemnity to the