75 N.J. Eq. 63 | New York Court of Chancery | 1908
This is an application for a preliminary injunction based upon a bill and affidavits to which there is neither answer nor affidavits on behalf of the defendants.
, Briefly stated, the case made by the complainant is as follows: The beach called and known as Seven Mile Beach, in Middle township, in the county of Cape May, this state, was at one time in the possession of a corporation known as the Seven Mile Beach Company. While so in its possession claims of title to the
There is also a prayer that the county clerk of the county of Cape May, where the lands lie, may be restrained from receiving for record any deeds from the defendants, or any of them, for any parts of the premises in question.
Since the facts are undisputed, the sole question is whether or not a preliminary injunction is proper under the circumstances.
This bill has no designation other than the usual one of “on bill,” &c. It does not purport to be a supplemental bill in the original suit. This raises the only doubt in the matter. It is, in its nature, undoubtedly a bill to enforce a decree of the court, and it is, of course, well settled that a court of equity has jurisdiction to carry into effect its own orders, decrees and judgments which remain unreversed.
Such a bill is not strictly an original bill, since it is at least occasioned b3r a former bill, and assumes as its basis a decree, or the principle of a decree sought to be executed. But it has been said to be, general^, partly an original bill and partly in the nature of an original bill, and is sometimes also a bill of revivor, or a supplemental bill, or both, the frame of the bill being varied accordingly. See 3 Encycl. Pl. & Pr. 601 et seq.
Such a bill may be exhibited by a person who is not a party to the original suit, and even by one who does not claim under a party to an original decree, but who claims under a like interest. A fortiori, it may be brought by or against a person claiming as assignee of a party to a decree. 3 Encycl. Pl. & Pr. 603 et seq.
Where, as in the ease at bar, the complainant is privy to the complainant in the original suit, and the defendants are either
It seems to me that, if necessary, this bill can be denominated a bill in the nature of an original bill, or an ancillary bill, or, I presume, could even be treated as a supplemental bill, since the defendants have not answered, and the complainant could obtain leave to refile the same as a supplemental bill.
A case so nearly analogous as to make it a controlling one will be found in Root v. Woolworth (Supreme Court, 1893), 150 U. S. 401. I gather that the bill in that suit was an ancillary, supplemental bill, but, as I have above stated, I do not think that the title in this case makes any difference.
Briefly stated, the facts in that case were that M. filed a bill in equity against R. to establish his right to certain real estate, and obtained a decree, and a conveyance of the property was made to him by the master. M/s interest thereafter passed by mesne conveyances to W. Thereafter R. interfered with W/'s right of possession. W. thereupon filed his bill, praying that R. be restrained from asserting his pretended title, and that he might be decreed to have no interest in the lands, and that a writ of possession might issue, and that a perpetual injunction be awarded to prevent B. from setting up his claims, and the decree was granted in conformity with this prayer.
Analogous relief will be found to have been administered in this court in the eases of Paterson and Hudson River Railroad Co. v. Jersey City, 9 N. J. Eq. (1 Stock.) 434, and Morris Canal and Banking Co. v. Jersey City (Chancellor Williamson, 1859), 12 N. J. Eq. (1 Beas.) 227; affirmed, 12 N. J. Eq. (1 Beas.) 545. In these cases, however, the right protected had been settled by a previous judgment at law instead of in equity, and therefore they were in the nature of bills of peace. See 3 Encycl. Pl. & Pr. 556 et seq.
I shall, therefore, advise the issuance of a preliminary injunction.