U.S. District Court-Shepley v. Rangely.

WARE, District Judge.-I have not when the validity of the instrument was thought it necessary to examine all the in controversy, to direct a trial by jury, questions which arise out of this record, to ascertain the fact. But as the court has and which have been so elaborately and jurisdiction to determine matters of fact learnedly argued at the bar, because from without the intervention of a jury; latterthe view that I have taken of it, the ly the more convenient and less expendecision of the cause must turn on the sive course, in some cases is adopted for single question of the jurisdiction of the the court to determine the fact itself. 5 court. The bill seeks to draw into equity Johns. Ch. 118, Smith v. Earl. 2 Ves. jr., questions, which seems to me pro- 484, Newman v. Millner. 7 Ves. 415, perly belong to the forum of law. The Jarvis v. White. Still it is the present plaintiff claims title under a deed to his practice of the court when the facts are grantor, Ether Shepley, of John Spring, doubtful and the evidence contradictory dated April 14, 1832, and the defendant and not entirely conclusive, to take the under a levy of an execution in his favor of opinion of a jury. 2 Story Equity, § 702. July 9th, 1839, against Webster and Burnham, and traces back his title through Webster and the bank to the mortgage of Spring and his wife, of January 4, 1830. The titles of both parties are strictly legal, nor do I see that they are affected by any equities that should withdraw them from the cognizance of a court of law to the jurisdiction of equity. There is nothing in them that I see, which will prevent a court of law from doing complete justice between the parties. In truth the bill does not suggest nor rely on any thing of the kind, or at least on any thing that should give jurisdiction to equity, until the title of the plaintiff is established at law.

The bill sets out the title claimed by the defendant, and alleges that nothing passed by the levy, inasmuch as there was no foreclosure under the mortgage; first, because there was no valid entry to forclose the three-acre lot in controversy; secondly, because the mortgage was discharged by the payment of the debt. Then, as a ground of giving the court jurisdiction, it is contended that this outstanding claim of superior title by the defendant, may hang as a cloud over that of the plaintiff, and that he is entitled, in equity, to have that removed, that is to have the pretended title of the defendant declared void, and to have a perpetual injunction against his ever setting it up in a court of law in opposition to that of the plaintiff. The bill may, therefore, be considered as in the nature of a bill quia timet and bearing an analogy to that class of bills which are brought to have void instruments delivered up and cancelled. 2 Story's Equity, § 694, 698. In these cases the old practice of the court was,

The validity of the defendant's title, which the plaintiff asks the court to declare void and restrain him from setting up at law, depends on questions partly of fact and partly of law. It is founded on a levy on the land as the property of Webster, who devised his title under a deed from the trustees of the bank. It is not disputed that the legal estate was transferred by the bank to the trustees, and that the deed of the trustees was sufficient to convey whatever legal interest was vested in them at the time of the conveyance. If any interest were transferred, and that was such an interest as could be taken in execution, then it is not denied that the levy was good to pass that to the defendant. The questions then which arise, and have been argued at the bar, are whether any, and if any, what estate passed to Webster. The argument of the plaintiff, is-first, that the deed was entirely inoperative and nothing passed; or, secondly, if any thing passed it was only an estate in mortgage. The argument of the defendant is, that an estate in fee passed.

In the first place, was the deed wholly inoperative? If so, it must be because the title of the trustees was extinguished before the conveyance by a payment of the debt. The debt was paid on the 12th of July, 1836, and the deed to Webster bears date, July 13th, the day following. If it be admitted that the mortgage title was extinguished by the payment of the debt, and that no re-conveyance was necessary to revest the title in Spring, the mortgagor, (3 Mason, 520, Grey v. Jenks,) it is still true that it is the payment of the debt that was the operation to revest the

U. S. District Court-Shepley v. Rangely.

title in a mortgagor. Now the money whole, unless there are several tenants in was advanced by Webster, and the con- possession claiming a freehold in several veyance was made to him by the direc- parcels. Litt. sect. 417. Co. Litt. 252, tion of Spring. The payment was the b. 8 Cranch, 250, Green v. Liter. This consideration of the deed, and in order to lot, though not adjoining the mansion carry into effect the manifest intent of the house, was in the same town and in the parties, both must be considered as parts possession of Spring. If the entry then of one transaction, and the deed as ope- was good to foreclose the mansion house, rating from the time of the payment. If the it was good to foreclose the mortgage of deed bears a later date so as to give time this lot. for the estate to revest in Spring before the execution of a deed, and thus defeat its operation, the day of the date must be considered as a mistake, otherwise it will operate as a fraud on Webster. Indeed King in his deposition, who fixes the day of the payment, says that it was the 12th of July, the day when the deed was executed. There is, therefore, no doubt either that King is mistaken in the day of the payment, or that there is a mistake in the date of the deed. The deed must therefore be considered as having an operation to convey whatever title was

vested in the trustees.

The entry on the land was made either on the 9th of May or on the 9th of June, 1833, and the time of redemption expired as early, therefore, as the 9th of June, 1836. The title of the trustees then became a fee unless there was a waiver of their rights. It is said that if there was a foreclosure, the forfeiture was waived and the title brought back to a mortgage by the trustees receiving, after the time for redemption had expired, other collateral securities for the debt. The argument proceeds on this ground, that as the foreclosure was, by entry, in the presence of witnesses, that is by matter in pais, it What then was the title that was trans- may be waived by matter in pais and the ferred? The plaintiff's argument is, that if absolute title cut down to a mortgage, any thing, it was only a title in mortgage at and that the trustees, by receiving addileast as to this lot: first, because there tional securities for the debt after the was no valid entry to foreclose the lot in foreclosure, virtually admitted and acquestion. If the deed operated merely as knowledge their title to be a mortgage. an assignment of the mortgage, then Web- Now if it be admitted that these securities ster, as mortgagee, had no interest in the might be received under such circumland which could be taken on execution, stances as would amount to a waiver of and of course the defendant took nothing the forfeiture and give the mortgagor furin this lot by the levy, however it might be ther time to redeem, I think it difficult with respect to the other lands set off. 16 to be maintained that they might not have Mass. Rep. 345, Blanchard v. Colburn et al. been deposited with the trustees under 3 Pick, 484, Eaton v. Whitney. The en- such circumstances, and on such terms as try of the bank was into the mansion would not amount to a waiver of the forhouse only, and the land in controversy is feiture; and King, who transacted the a separate lot, not adjoining the one on business, says in his deposition that he which the entry was made. Whether the did not intend to do any thing that would entry was sufficient to operate on this lot, prejudice the rights of the trustees under the facts being admitted, is a question of the foreclosure. Taking then the case law, and if the case is properly before the as it is put by the plaintiff's counsel, as court, it may as well decide the question this is a question of legal title depending sitting in equity as it may sitting as a on matters in pais, and to be determined court of law, and, in my opinion, it was on the weight and effect of evidence; if sufficient. It was open and peaceable, the evidence is not quite clear, it is preand the only objection is, that a special cisely such a case as a court of equity entry was not made on this lot. But it is is in the habit of sending to a jury. well settled law, that were a party having title enters on one parcel in the name of all lying within the same county, it is a valid entry to give him seisin of the

But without going into an examination of the evidence at large, it may be safely said that it is far from being clear and free from doubt in favor of the plaintiff, and

U. S. District Court.-Shepley v. Rangely.

therefore I think the defendant has a right | sustained and a perpetual injunction to have his title submitted to a jury. If granted, to put an end to vexatious litigathis bill then is to be considered as in the tion. But he adds, " when the question is nature of a bill quia timet, and to be gov-merely, whether A. or B. is entitled to the erned by the analogy of bills brought for property, and there has been no actual the delivery up and cancellation of void suit between them, there has been no ininstruments, my opinion is, that the de- stance where such a suit has been enterfendant's title ought to be ascertained to be tained." He refers to the case of Welby void by a trial at law, and the verdict of v. The Duke of Rutland, 6 Bro. Parl. a jury before a court of equity is called Cases, 575, as precisely in point, to show upon to enjoin him from setting it up. that a mere adverse claim, and that asBut this suit appears to me to come serted by an act which does not disturb more properly within the analogy of one the possession and actual enjoyment of the species of another class of bills, techni- party, is not a sufficient foundation for a cally called, bills of peace. Of these bills, bill, simply because it may at some future there are two species, one where a party time bring a cloud over the plaintiff's is in possession of a right, which may be title. In that case, Welby, the plaintiff, successively controverted by many per- claimed a manor, of which he had the possons, as a parson's claim of tithes, or a session, and the Duke of Rutland, the deperson claiming an exclusive right to a fendant, also claimed title to it, and apfishery, or claiming tolls. He may in a pointed a game-keeper. It was said in single bill, by making a sufficient number answer to the bill, that if Welby was disof persons parties who claim adversely, turbed in the possession, he might bring have his right established against the whole. an action and have his title established at 2 Story's Equity, § 854. Another case is law, and when that was settled have an inwhere a person is in possession of lands, junction. But there must first be such a and his possession is disturbed by another disturbance as would support an action, claiming title; he may in some circum- and then the title ascertained at law. The stances maintain a bill against the party naked assertion of a title, or the doing an that disturbs him, for the purpose of quiet-act in support of that assertion, which did ing his possession, and to enable him to have that undisturbed enjoyment, to which in conscience and right, he is entitled. The relief granted in such a case, is that which is prayed by the present bill.

But to maintain a bill of this kind, three circumstances must concur. The plaintiff must have the possession, that possession must have been disturbed, and his right must have been previously established at law. It is not enough that he may fear that his possession may be disturbed, or that his right may be controverted or brought into litigation. This doctrine is clearly stated by Lord Redesdale in the case of Devoncher v. Newenham, 2 Sch. & Lefroy, 202. Whenever a person, he says, claims title against another, who is in possession and his enjoyment disturbed, a suit may be entertained by the latter, for the purpose of quieting the possession, and he illustrates this doctrine by the case where several ejectment suits have been successively tried. In such cases, after the title has been sufficiently established at law, a bill of peace will be

not interfere with the plaintiff's possession and enjoyment of the property, would not authorize a court of equity to inquire into the foundation of the title and enjoin a party claiming adversely from prosecuting his rights at law.

The case of Welby v. The Duke of Rutland, is precisely parallel to the case at bar, with this distinction against the present bill, that this plaintiff has not, and never has had the possession. Spring, a third person, has the possession, not holding under either of the parties to this suit, but so far as appears from the record, adversely to both. Both parties also set up titles, by which, if they have any rights, they have against him a right to the immediate possession. The object of this bill is to obtain a decree, not to quiet, and protect the plaintiff's possession, nor to establish his own title against a number of persons, who might in separate suits controvert it, but to have the defendant's title declared void as against him. It is in fact to have the court decide, which of these two parties, each having color of title,

Vice-Chancellor's Court.-Gilbert v. Mickle.

have the better right, when, for any which the court can say in their suit, a third party who has the actual possession, may have a title paramount to both. The defendant might, with just as good cause, file a bill against the plaintiff, and with precisely the same reason ask the same relief against him. He might allege that the deed of 1832, threw a cloud over his title, and ask the court to declare that deed void and inoperative to affect his rights, and that he might be enjoined from setting it up. To sustain a bill under such circumstances would, I apprehend, be a perfect novelty in jurisprudence. If the plaintiff were in actual possession of the land, and the defendant threatened to disturb him by setting up a paramount title, this bill could not be maintained, unless his possession and enjoyment had been actually disturbed, and his title established by a suit at law. The only bill which the plaintiff would then be entitled to, would be a bill not to establish his title, but to perpetuate the testimony, if there were danger of its being lost. But even such a bill he could not maintain, without first obtaining the possession. Then being in possession, and not having the power to bring a suit at law to have the right determined, if his title was denied, and he was in danger of having it litigated at a future time, when his proof might be lost by the deaths of witnesses, he would be entitled to a bill to perpetuate the testimony. 2 Story's Equity, § 1002. 1 Simons & Stuart, 83, Angel v. Angel. 6 Vesey, 251, Lord Deersley v. Fitzharding, in which all the cases on perpetuating testimony are critically examined. 7 Vesey, 410, Jarvis v. White.

My opinion is, that the bill must be dismissed with costs for the defendant.

Vice-Chancellor's Court.

Before the Honorable LEWIS H. SANDFORD,
Vice-Chancellor of the First Circuit.

WARREN GILBERT V. ANDREW H. MICKLE.

14th, 15th and 29th Oct. 1846.

Courts of equity will restrain by injunction a private nuisance, where the injury therefrom will

be irreparable, or such that the remedy at law But they will interfere with great reluctance for will be inadequate.

the protection of rights of property which aro mingled with the administration of criminal law.

Where a placard, cautioning strangers against mock auctions, was kept in the street before the door of an auctioneer, it was held, that it was a private nuisance, and liable to be restrained by injunction, although it might also be treated as a libel. But on its appearing that the placard was so placed by order of the Mayor of the city, under a statute which authorized the police to caution strangers against mock auctioneers and like persons; that the Mayor as such was the head of the police; that the complainant had been charged before the Mayor as being a mock auctioneer and the Mayo believed the charge; it was held, that equity was not bound to grant an injunction against the continuance of the placard, but would leave the party to his remedy at law.

THE bill stated various matters which with those appearing on the other side, will be found in the decision, and prayed for an injunction restraining the defendant, his agents, &c., from placing or keeping before the complainant's door, he being an auctioneer at 142 Broadway, an offensive placard or banner, cautioning strangers against mock auctions. A temporary injunction had been granted, with an order to show cause why it should not be continued. For the defendant, affidavits were read in opposition, made by himself, by Mr. Matsell, the chief of police, and by several policemen,

W. C. Noyes and F. A. Talmadge, for complainant.

J. T. Brady, for defendant.

THE VICE-CHANCELLOR.-There were several objections to the jurisdiction of this court upon the case made by the bill, which the learned counsel for the city argued with much earnestness and force.

I have nevertheless no doubt on that subject. Whether, under all the circumstances, as now appearing, an injunction ought to be granted: or whether upon the case, as it will finally appear, the complainant should be relieved; are very dif ferent questions.

It is clear to my mind that the obstruction of the complainant's lawful business, as detailed in the bill, constitutes a nui

Vice-Chancellor's Court.-Gilbert v. Mickle.

sance, against which equity, under ordi- | vertisement, kept before his store or of nary circumstances, is bound to relieve.

fice.

If there be no remedy for the offence, other than the slow and uncertain process of an indictment, or a suit for damages founded upon the idea of a libel; it is very certain, that individuals thus attacked and injured, will resort for protection and redress to summary proceedings by taking the law into their own hands.

This is upon the same principle which The most zealous stickler for the bill of holds that the obstruction of a public rights in the dying constitution, will not street or way in a city, by teams, carts, distrust the preservation of liberty of carriages, and the like, continuing con- speech and of the press, from the supstantly or in close succession at a man's pression and punishment of such an store, warehouse, distillery or other manu- outrage. factory, although the same be for the purposes of his trade; constitutes a public nuisance. See The People v. Cunningham, 1 Denio, 524. The King v. Russell, 6 East, 427. Any person whose adjacent tenement or trade is injured in its enjoyment, or impaired in its advantages, by such obstruction, may unquestionably recover damages at law, or restrain the further continuance of the nuisance by an injunction from a court of equity. Semple v. The London and Birmingham Railroad Company, 9 Simons, 209; 1 Railway Cases, 480.

66

As this case is stated in the bill, the complainant is an auctioneer who has complied with the laws of the state in all respects, so as to entitle him to pursue that calling; and he has at all times honestly and faithfully conducted his business, has never been guilty of any cheating or fraud in the same, and is not a mock auctioneer, or justly chargeable with pursuing any of the devices or practices which are imputed to mock auctioneers.

His lawful business has been invaded by the placard placed before his door by the defendant, and it will be irreparably injured and destroyed if the same be continued.

So much for the cause as it appeared by the bill of complaint.

In this instance the case made by the bill, although the defendant did not interfere with the complainant's trade and occupation as an auctioneer, by blocking up the street and side walk in front of his store, with teams or carts, so as to impede the free ingress and egress of merchants and others who might desire to attend his sales; he interrupted and destroyed the complainant's business more effectually, by keeping a man posted before the door And he has applied to the defendant in of the latter, with the placard in staring a friendly manner, and with earnest procapitals, STRANGERS, BEWARE OF MOCK testations of his innocence and fair chaAUCTIONS." It may be that the placard racter, requested him to desist from his was a libel, which, unless justified, would wrongful and unjust interference with his subject the defendant to corresponding trade as an auctioneer. punishment, both by way of damages and by indictment; but it was none the less a private nuisance, injuriously and summarily affecting the property and lawful pursuits of the complainant, and as such it falls within the clearly established, and I may justly add, beneficent jurisdiction of the court of chancery. And I am sure no one will feel the slightest apprehension of an undue or dangerous exercise of the powers of chancery, if they are pushed no farther than to prevent one individual, whether he be high in station or a private citizen, from trampling upon his neighbor's rights and utterly destroying his neighbor's trade and business, without authority of law, by means of an offensive and false placard or standing ad

It is shown, on the other hand, that the defendant is the mayor of the city, and as such, the head of the police department.

That complaints have been repeatedly made to him against the establishment of the complainant, as being a mock auction store, and against him as a mock auctioneer.

That the mayor from the facts and circumstances brought to his notice, believes those complaints to be well founded; and in the discharge of his duty as mayor and head of the police, and in compliance with the statutes as he construes their provisions, he has caused the placard in question to be