Fain vs. Garthright. was ex two lots. The possession began under this contract. It w ecutory-no deed was proven to have passed. Chancellor Jones said: "The writing produced, admitting it to be simply a contract for conveyance, is in accordance with the possession held, and the claim of title under it. His entire confidence in his title, and his reliance upon its sufficiency to protect his possession, and the assertion of his rights under it, against the claim of the proprietors under the patent, are decisive of his own opinion and belief of the validity of his title. It was an express agreement, by a person claiming to have the right to contract for the disposal of the land, to convey to him the lot he should locate, when conveyances were to be given; and an agreement that he should enter into immediate possession, and hold the premises thus contracted to be conveyed to him, without rent, until the conveyance should be given. Under such an agreement, reduced to writing, and followed by possession and improvements, the defendant acquired a title in equity to the land; if McKay, the party contracting to convey, had at the time, or afterwards, acquired the right or power to perform his agreement. It was a contract which equity would have enforced the performance of, and the right of La Frombois under it was the more perfect and stable, as the consideration had been already paid or satisfied by him to McKay, and there was nothing farther to be done by him to entitle him to a conveyance of the legal title. Hence, it probably was, that he insisted so firmly and peremptorily upon his absolute right to the land, and put his claim to it upon the ground of title; doubtless, resting upon some subsequent conveyance in execution of the agreement, or considering his contract tantamount to a deed. It does not expressly appear that he ever obtained an actual conveyance for the lot; but he had an agreement which entitled him to a deed. He may have been in possession of some farther muniments, which, in the conflagration of his house by the enemy, or from some other cause, were lost or destroyed. But, suppose the contract to have been his only title, it was an absolute engagement of a person assuming to be owner, to give him a deed of conveyance." After some farther remarks, Chancellor Jones added, “Then had not La Frombois, from the time of his entry until his death, the greatest reason to believe that the title which he held, under McKay, whether that title was legal or equitable was valid in law, and gave Fain vs. Garthright. full protection to his possession, and improvements? And if he had reason to believe, and did believe that his title was good, as he must be presumed to have entered under that title, his possession having continued for twenty-six years after his return to his home, after the close of the revolutionary war, must bar a legal recovery by the plaintiff, admitting them to have the legal title, in this form of action." La Frombois vs. Jackson, 8 Cowen R. 597, 598. In Moore vs. Webb, 2 B. Munroe's R. 283, it is held, that though one enter under an executory contract of purchase, and such entry in its legal character is a tenancy at will, yet, such an one may hold adversely in fact. The cases are numerous that settle, that when one enters under an executory contract, and the consideration is paid, the possession is adverse, although no deed has been given. See Angel on Limitations, 437. 5 Metcalf R. 173. 12 John. 491. The case of Hunter vs. Persons was, in principle, the same with this, and I consider, fully sustains the view we take of it. There A contracted to purchase lands of B, and paid part of the purchase money, but titles never were made. A gave the land to his son C, who went into possession; and it was held that C's possession was adverse, both to A & B. In the case before us, none of the consideration was paid; in that, a part remained unpaid. If any was unpaid, the cases are analagous. 2 Baily, S. C. R. 59. Upon a fair construction of our own Statute, as applicable to this case, and upon the principles and authorities stated and referred to, we are constrained to sustain the decision of the Court below, upon the plea of the Statute of Limitations. Wells and others vs. Strange. No. 3.-WILLIAM WELLS, and others, plaintiffs in error, vs. C. B. STRANGE, defendant. [1.] A bill filed for a general account and settlement of a copartnership, may embrace every object necessary to the complete adjustment of the concern, without being demurrable for multifariousness. 12.] It is not now necessary that a bill for an account should contain an offer by the complainant, to pay the balance, if found against him. [3.] All persons interested in the decree to be rendered, should be made parties to the bill, that the Court may do complete justice, and that future litigation may be prevented. In Equity in Marion Superior Court. Demurrer. Decided by Judge ALEXANDER, May Term, 1848. This was a bill brought in the Superior Court of Marion county, by the defendant in error against the plaintiffs in error, for an account of and concerning the village Hall built in the town of Tazewell, under articles of agreement and co-partnership in writing, and seeks 1st. A general settlement and account. 2d. The perpetual injunction of a certain cause of ejectment, wherein judgment had been recovered against the defendant in error, while in the possession of the Hall as the treasurer, agent and tenant of the company, so far as to restrain the collection of the fi. fa. founded on the judgment for "mesne profits;" the possession having been abandoned by him, till he can have an ac count. 3d. For specific performance of a part of the said partnership agreement, to wit: the payment up of the balance of the stock due and unpaid by certain of the stockholders, and the conveyance of the title alleged to have been fraudulently obtained by one of the company, Wm. Wells, or that he be considered as holding the same as trustee for the benefit of the company. At the first term of the said Superior Court, the plaintiffs in error, by their solicitors, moved their general demurrer; specifying, however, certain grounds as more especially relied on, viz: 1st. That the complainant is too late in asking equitable relief after a judgment at Law. Wells and others vs. Strange. 2d. Because said bill is multifarious. 3d. Because of want of proper parties; two of the stockholders not being made parties. 4th. Because said complainant does not offer to do equity in said bill. 5th. Because it is no where alleged in said bill, that the parties are insolvent, or that an irreparable injury will accrue by the collection of said fi. fa. The facts are more fully stated in the opinion of the Court. WORRILL & HILL, for plaintiffs in error. This bill is multifarious, because it is for a specific performance, in which all the defendants should of right be complainants, except the Wilchers and Wells; and because it is for an account of partnership dealings, in which two of the Wilchers have no interest. In the one case, Wilcher and others are taxed with delay and costs, in relation to a matter in which they have no interest; and in the other, defendants are deprived of their right of being complainants and properly conducting their case. Story Eq. Pl. 224, 225, 226, 227, 228-from section 271 to section 277, inclusive. 2 Kelly, 419. 2d. A want of proper parties. It is true the bill states that the company let them off, but the bill does not allege their assent. They have a right to be heard. 3d. Strange admits that he owes the rent, and admits that Wells has paid for the premises, and does not offer to pay the one or to allow the other. He who asks equity, must do equity. 1 Story Eq. 77. Story Eq. Pl. 404. 4th. Under the above stated facts, complainant asks an injunction, without stating a solitary reason for it, neither the insolvency or irresponsibility of the defendant Wells. 2 Story's Eq. 661. JONES, BENNING & JONES, for the defendant. 1st. The bill was not multifarious. The land belonged in equity to the partnership, because Jourdan Wilcher, Sen. having the title, stood by and saw his son or sons (twin) sell it to the company, and did not disavow their acts. 1 Story Eq. § 385. Fonb. Eq. 138-9 Wells and others vs. Strange. And Wells bought from Wilcher, with notice of this equitable title. Moreover, being himself a partner, he could not, " privately and behind the backs" of his co-partners, buy what the partnership had itself agreed it should buy and own; such a fraud would only make him hold in trust for the company. Stor. Part. § 174, and note 5. Featherstonhaugh vs. Fenwick, 17 Ves. 311. And inasmuch as the mesne profits, incidents of the land, which equally belonged to the partnership, were still in its hands by its agent or tenant. Strange, it was proper that they should there remain, notwithstanding Wells's judgment for them, to prevent circuity of suit, and for other reasons. Now, the bill being for an account of the partnership, it was no more multifarious for asking for an account of one item of partnership property, than another. 2d. The complainant is not too late in calling for equitable aid, after the judgment at Law. "If it be doubtful whether a Court of Law can take cognizance of the defence, and there exists no doubt of the jurisdiction of a Court of Equity, and if in such a case a defendant at Law under the influence of such doubt, omit to make his defence, or if he bring it forward and it be overruled, under the idea that it is not a defence at Law, it is not granting a new trial, for a Court of Equity to afford relief notwithstanding the trial at law." King vs. Baldwin, 17 Johns, 389. Marine Ins. Co. vs. Hogeson, 7 Cr. 336. Bateman vs. Willoe, 1 Sch. and Lef. 206. Farquharson vs. Pilcher, 2 Russ. 81. 3 Danls. Ch. P. 305, 6. 2 Sto. Eq. § 887, § 882. 3d. The bill having stated that Jno. Wilcher and Thos. J. Stevens were among other "stockholders," prayed subpoena against "the said several stockholders;" therefore, Jno. Wilcher and Thos. J. Stevens, are parties; but if not, they have no interest, having been let off from their subscriptions. 4th. In a bill for an account, an offer to do equity is not necessary. 1 Dan. Ch. Pr. 497, 68. Colombian Gont vs. Rothschild, 1 Sim. 94, 105. But there is no equity for Strange to offer to do. 5th. Irreparable mischief is not a condition precedent to the right of enjoining by Courts of Equity. 3 Dan. C. Pr. 305--7. 2 Story Eq. §§ 94, 310, 946, 901. Drury Inj. 3, 206, 210, 2 Sim. 515. 7 Ves. 413. Butler and others vs. 218, et seq. |