SMYTHE V. HENRY.
705:'
SMYTHE 11. HENRY
et al.
(Circuit Oourt, W. D. NQ'rth CaroUna. February 11, 1890.)
L
EQUITY JURISDICTlON-QUIETlil-GTITLB.
I.
Whllre in title through a .deed and a patent valid on their lace, but in fact void, the deed being forbidden by statute, and the patent being subilequent to another patent: for the same land, a oourt of equity has jurisdiction ,of, a bill to enjoin thllproseQUtion of the action of ejectment, to cancel such. deed and and to oompel disoovery. Courtll of equity have inherent jurisdiction, independent of statute, to decree a sale of ,the land of a decedent fOf the payment of hiJI debts upon application of the devisee and the personal representative.
SllIE-SALE OF LAND OF. DECEDENTS.
B.
LEGISLATIVE GRANT-REsTRAINT ON POWER OF ALIENATION. Under l\ legislative grant to an Indian, which confers on him
the rights of citizenshill, and gives him title to land in tee ,with the right of devising the same, but WhICh expressly withholds ·from hiIn the right of conveying it except b;V lease for a term of two years, a deed of tpf;lland by such Indian is void, the restramt on alienation not being inconsistent with either the estate granted or the citizenship con'lerred. ' Wheresnch Indian atj;empts,to Qonvey such land by deed, and then accepts a lease of the land from his grantee, his possession is 'not that of his grantee, so as to set the statute of liInitations in motion in favor of the Such deed, being' made in violation of an express statute, is not color of title. . ,
"
LIMITATION.OF AOTIONS-ADV:ERSE POSSESSION.
5. 6.
SllIB-COLOR OF TITLE.
EsTOPPBL BY DEED-LANDLORD AND TENANT.
In such case, the deed from the Indian being void, his execution of the deed and acceptance of the lease do not estop his devisef;ls and their assigns from disputinjr the title of the grantee.
In Equity. Bill by George B. Smythe against R. M. Henry and others, to enjoin the defendants from prosecuting a. certain action of ejectment, and to have certain deeds canceled as clouds on complainant's title to the land' sued for in the action of ejectment. W. H. Malone and Theo. F. Da'Cidsan, for complainant. Cobb &; Merriman, Jones &; Shuford, and Henry Hardwick, for defendants.
DICK,J. When the pleadings and proofs in this case were read at the hearing, I was so well satisfied that the complainant was entitled to the relief that he prayed for that I declined to hear any arguments from his counsel. The argument of the cou,nsel for the defendants was ,so learned, able, and logically arranged, and was urged with such earnest confidence, that I concluded. to postpone my decision until I had time to examine the authorities cited, and give the case my most mature consideration. The counsel on both sides have furnished me elaborate arguments and briefs, but, from the views which I take of the questions of law and fact involved, I think that I can properly determine the rights of parties upon the pleadings, the documentary proofs, and the uncontroverted evidence, without attempting to ascertain the preponderance in the conflict of testimony, or considering fully the manyquestions of law discusE'ed in the arguments of counsel. The first defense insisted upon by the counsel of the defendants is v.41F.no.13-45
FEDERAL REPORTER,
voL 41.
that the bill of complainant does not show such a case as to entitle him to equitable reliefj for, as to' the matters alleged, he has a complete and adequate remedyin a court of law. ," of the opipi<>,n tBat the allegations in th:ebill,and' the' faofs"aild circumsta.nces )develop'ed by the proof, made a resort to a court of eql:l.ity"highly expedient and proper.:; e my, teas,ons,.fO,r,'so, ,'.In,' a , opinlo;t:l"",wMenI,have ,decided the law Involved" apd stated my conclusions as to oHacts in the evidence. ,.I', , ' . " , " · ,', ' · Both ,parties claim to to theland in controversy under It'g&nt 'of the state Junaluska,. ,twill first consider the nature llnd,purp(1lseofsnom. grant. An act ,of the, state legact in pherokee chief was duly and .ratified,'QA,;thij2il,day of Januiny.la47.. The first secti0J;\'cbnferred upon hiJ11"fJnhe ,pgh.ts, an;Cl,i,mnmnities of a of state. The'secona'seCtion enacted "that the secretary of state be authorized and directed "to convey unto thesailiJunaluska in; ,county,)p 9, tract No. contaInIng three hundred/and thirty-seven acres;whwhsaid hold without' the power to sell or convey except for the tElrrp. oitwo ye8(l's,," from:timerto:time:·providedi';um:erthel,ess.that he I:lhall:have' full power theaame ofilf."1'·, The the treasurer of the state to pay the said Junaluska the sum of $100. The fourth section gave the act full force and effect from and after, its pas-
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i,Thiswas'e!early a donationact;ancil from its pa,ssagevestedin luska a title to the laoospecifioaJ.ly:described , 8.nddirected to be con.. , veyed by a grant to be executed by ,the secretary of;state-·· : The grant was duly executed on thedaycof,the'passage ofthedonati6tl act. ":The execution of ,the graxit was A mer.e miQisterial act of· the'· officer- charged with the duty to be performed as directed by the legislature. The grant) was additional and convenient evidence of the title t!> the previously cbnveyedbythe;donation scW'andrl'elated back 'to the inception of the . rights ofthegrantee,andcouldmJt change the titleaS"originally con7 _ferred; .A legislativegran.t tbat' :p'tbceetls more: from the. dignity than a grant exsource oftitle is entitled to ecuted' by aiministerial officer aoting under: the, provisions of the statute.' Morrowv. Whit'11J6Y,r'95 U:S'",551j'Barney v. Dolph, 97 U. 652j Whit-' neyv;Mortxlwt112>U.'S. 69S,'5l Sup. Ct. Rep.B3B.. " , . "" The inducemertt, ,ooject, and! ptirpe8e of the legislature in bestowing; the land uponJunahlska. was'elearly expressed in the explanatory clause: that preceded; ·tqe first f$ection act.' He 'had reridered imp6i'tan'jP military: se:vioe,ttrthe Un.ited' Stilltesin the last war with Great Britain.' He:had: retm'nedfrom the beyond the Mississi'ppi,'a.nd: had expressed a wish to becoinea' resident 'and citizen of his native sw:te;': The benignant purpose of the <legislature in the bestowal of its bounty was-to'prov.ide a; permimenthonie 8J1d farm for its old and worthy ben-'j
.tl
SMYTHE 11. HEt;RY.
e!lciary, and to guard' "liis 'inexperience in business matters agairult the designs and crafts of shrewd and· selfish· white men, and protect him fr6m temptations which might inducehiiu to make'an improvident disposition of his property"and thereby reduce himself and faniily'to genceandwant. We maywell:infer that the gift of $100 was'intended to meet necessities that might arise: b 'fore 'he could make a crop the ensuing year. ' .':. " , It is insisted that therastriction imposed upon the rights of aUeha-' tion by the second sectionofthe:a<lt is inconsistenft -with the spirit and' purpose of the ·first section, which conferred upon Junaillska all the' andimttiunHies of citizenship. Whenli. state conveys land sa a bounty, itcanitnpose anyrestrictiondeemed propel'upon the grantee. When we consider the condition of thlit new citizen we may well ,eonclude that the restriction was not unreasonable I 'but was rather just, wise, and beneficent. Junaluska belonged to a Sllbordinate race. He had spent most of his ·life with untutored Indian tribes' beyond, the Mississippi, a.nd had returned in his old age to tbe'former hunting grounds' of his fathers. He had little experience'in the ways a.nd transactions of civilization, and might well regard the white man as his superior in intelligence, wisdom, and power. He knew comparatively nothing of the value of land for agricultural purposes, and of the benefits and pleasures ofa permanent home. Subsequent events soon manifested the wisdom of the legislature in placing restriction upon the alienation ofits bounty; for, in 20 days after the date of the grant,Junaluska was induced to execute a deed to S. P. Sherrell for the land, upon the fictitious consideration of $1,500 expressed in the deed; and under that deed the defendant herein claimed title, and instituted an action to recover possession from a bonafide purchaser for full value. The counsel of defendants further insist that the condition of nonalienation imposed upon the fee-simple the donation act is repugnant to the nature of the estate, and is therefore void. That old and well-settled rule of the common law does not apply to this legislative grant. The sovereign power of the legislature is superior to the immemorial rules and usages of the common law. The legislative power of the state is restricted only by the state and federal constitutions, and it may change the rules of the common law whenever such alterations are deemed best for the general welfare, and do not conflict with the constitutional rights of citizens. Munn v. IUinois, 94 U. S. 113. Such restricted operation of the common law was expressly declared by statut-e in 1715, whieh is still incorporated in the statute law of this state. J Code N. C. § 641. I am of opinion that the manifest intent of the legislature was to keep the title to the land conveyed by grant in Junaluska during his life, so that it could not be divested by his own act, or by any of the prestlmptions or rules' of law that usually apply in' cases of laches, forfeiture, reverter, estoppel, and color of title. Junaluska had a: fee-sirnplethat could not pass from him in 'any way,' except by devise or descent. He could transfer tpe possession of the lands by a'lease, from time to time" of two years,- The: power of alienation regulated' by be
7Q8
FEDEnAL REPORTER,
vol. 41.
strictly complied with, so that the policy and object of the statute may not be defeated. 1 Story, Eq. Jur. §§ 96, 178. With this view of the law" it is unnecessary for me to consider the evidence as to whether the Sherrell deed was fraudulent on account of the gross inadequacy of the real consideration; concealed under the false consideration expressed in the deed, or the constructive fraud arising from long concealment, and failure to register the instrument, and his nonclaim for more than 25 years while living in the vicinity. This evidence when I come to consider the question of equitable juris.. will be diction, founded upon alleged actual and constructive fraud. I will now considerthe Sherrell deedjnthe light ohn honest transaction. This deed of bargain and sale conveyed only the interest in the land which theba\'gainer had' a right to convey. It gave rise to no cause of forfeiture,anddid not entitle the state to enter for the breach of any condition,.expressor implied. No/such provision was made in the donation act or the grant. Ruch.v. Rock hland, 97 U. S. 693; Grinnell v. Railroad 00.,100 U. S. 739. We will uowsuppose that this lease by bargain and sale conferred a term of two. years upon Sherrell, and transferred possession without entry. Sherrell was lessee, and Junaluska was lessor with a reversion in fee. When Sherrell made Junaluska a lessee for the whole term, it amounted to an, assignment of the term to Junaluska, and at once became merged in the. fee, and Sherrell was only entitled to the rent reserved. This was the result,as there was no expressed intent that there should be no merger. But suppose there was no merger, then, when eherrell's term of two years expired by effluxion of time, Junaluska having the reversion in fee and the actual ,possession, no entry was necessary to reinvest him with the unincumbered fee. It is insisted that, as the deed to SherI'ell purported to convey a fee, the grantor was estopped from denying the title of the grantee, and that this estoppelextended tpall persons claiming under the grantor. The doctrine of estoppel cannot be applied,when it would thwart any declared purposeof·fl.statute, or any well-settled rule of the common law, as in the cases 'of infants and married women.' Sims v. Everhardt, 102 U. S. SOO; Drury v; Foster, 2 Wall. 24; Bigelow, Estop. 245. An invalid deed Q.oes not work an Jd. 253; Bank v. Banks, 101 U. 8.240. l,It is further insisted that, as Junaluska became the tenant of Sherrell, he could not deny his landlord's title., An estoppel between tenant and landlord rests upon considerations of public policy. It cannot apply where its' aUowancewould contravene a public policy expressed in a positiye statut,e. Junaluska was restricted lis to a direct alienation, II.nd. no presumption Or 1'uleof the common law eouid allow him to pass to become a tenant of Sherrell. Where a statute his title positively declares tha1.a thing shall not be done, the law will not its policy and purpose to be thwarted, by any subterfuge or ingenious contrivance clothed with thes6111blance ofIegality. It is further.insisted that the deed to Sherrell was at least color of title, fl,nd gav:ehim .arightto the land by .reason of his first possession, and the contin.\lousposaessionof his tenant Junaluskafpr seven years. I am
709
of the opinion that a deed. made in violation of the provisions of an express statute is void for all purposes, and. will not constitute a color of title 80 long as it contravenes such expression of legislative will. Cowles v. COffC1J, 88 N. C. 340; Hall v. U. S., 92 U. S. 27; Gibbsv. Gas Co., 130 U. S. 396, 9 Sup. Ct. Rep. 553. There are numerous decisions in the courts which declare that a void and worthless deed will constitute color of title that will have operation under statutes of limitation, but such deeqs were void for other causes than those which contravene an express prohibition ofa statute, or some well-established policy of the law. I will not further.discuEls this question, for; conceding that the deed to Sherrell was color of title, he did not have the continuous possession to ripen his colorable title into a title. For this purpose there must be on the part of a claimant such actual adverse possession as will expose him to an action by the owner to recover his rightful possession. In this case the owner was in possession, exercising acts of dominion over the land hostile to Sherrell's claim, and manifesting his intent to hold under his legal title. The possession of the claimant must be adverse to the relll owner, and where the real owner is in possession such possession must be adjudged to be with the title. Powell v. Felton, 11 Ired. 469. The well-settled rule of law that a tenant is estopped from denying his landlord's title is not applicable to the facts in this case. It only applies where a landlord is seeking to recover possession from his tenant, or those claiming under him, and not where a landlord is endeavoring to ripen his .color of title under a void deed into a valid title, and the tenant disclaims and.holds adversely. The disclaimer of tenure at once puts an end to the relation of landlord and tenant, and the tenant is then a tres.passer. If the landlord desires to preserve the continuity of his possession, he must recover the possession from his disclaiming tenant, and put in a tenant who will properly attorn. A claimant under color oftitle must hold continuous possession for seven years by himself, ora tenant who recognizes him as landlord. .Bigelow, Estop. 373; Willisonv.Wat.kim, 3 Pet. 43; Walden v. Bodley, 14 Pet. 156. Under any view of the law and facts in this case, Sherrell was without title to the land in controversy after the expiration of his lease for two years. It is therefore unnecessary to consider the testimony in relation to the rescission of his deed by the parties when the expected exchange of lands with. Bedford Sherrell failed to be accomplished, or to the abandonment of claim by Sherrell, or to his acquiescence in the claim and possession of G. W. Hayes, or to Sherrell's concurring conduct when the land was sold by the administrator and devisees of Junaluska, and when subsequently sold by the administrator of G. W. Hayes, when the complainant became the purchaser at judicial sale for full value. These matters of fact may well be considered as badges of fraud when associated with his attempt to convey such land to the defendant Henry for the purpose ofinstitpting the action of ejectment now pending in this court on the law sieJe of the docket. The complainant in his amended bill alleges that; after his purchase at judicial the defendant Henry obtained a grant from the state fOJ!
·
/ FEDERIAL REPORTER,
'As'the-state had previously conveyed title' to Junaluska}!t<hij"land'was 'not' subject to entry, arid the junior grant '!o :Heriry waS' i VOla. It; however, i$color of title, and casts a cloud upon ,:the title oHhe complainant,wh'd !has a clea.r equitllble right to have such 'grant declared void by a'decree of this court. The grant is regular on has beeo,dulyreoorded;and is setup as a claim, of title 1n. the pending' actibiY )of ,ejeetment; Its' in:validity may be shown by '6vid,ence in 'Such action at lawj! bufthatwould not revoke the grant, and 'Only a courl of equity' cnti ,effectually remove. this cloud from the title of complainant. Van WyekJv;;,Knevals, 106'U; S. 360, 1 Sup. Ct. ,Rep. 336; " f The complainant claims title-to thelMd in controversy as a bona fide ,purchaser ata judicial sale made!l:mder a decree of a court of competent jurisdiction, and itls a well-settled rule of law, founded upon principles 'of justice and sound policy, that every reasonable intendment shouldbemade to support the title of a bonafide purchaser at a judicial -sale, decreed and confirmed by' llicourt of competent jurisdiction over the subject-matter, although its, proceedings mlly be defective and irregular in form. Every presumption' not inconsistent' with the record ;is 'to be iridulged in in favor of the jul'isdiction,as it is to be supposeq.. that a competent court ,knows its own legal 'power and duty, . will not exceed its legitimateauthor1ty. Cooley, Lim. 408; WiUiama v. Harrington, 11 Ired: 616; England v. Garner, 90 N. C. 197; .Applegate v. Mining .Co., 117 U. S. 255, 6 Sup. Ct. Rep. 742; Robinson Fair, 128 U. S. 53, 9 Sup. Ct.Rep. 30. The legal proceedings in the case of G. Bristol, adn'li.nistrator oiG. W. Hayes, seem to have been regular, and I cannot doubt that the complainant acquired by his purchase at the judicial sale all the right and title of the intestate to the land in controversy. It is unnecessary to inquire as to' what right Hayes acquired by his 16ng possession under the deed from Junaluska, dated 5th of June, 18&0, as Hayesdidnotrely upon his color of title and possession, but allowed the land to be sOld at a judicial sale decreed by the oouttof equity upon the petitiori of the devisees and administrator of Junaluska, and became the purchaser at full value, and paid the purchase money, which was partly used in the payment of the debts of the testator, and the balance was duly distributed among the devisees. Hayes died before a deed was made by ,the commissioners of sale, but when he paid the purchase money under ,the decree confirmIng the sale, which ordered a deed to be"executed, he became entitled to the land, and the title descended upon his heirs, "as what ought to be done is considered in equity as done." The administratOr of Hayes had aright to sell such interest to realize assets under the .license granted him by the court. Rev.Code,c.46, § 53. . 'II It is further insisted that the complaimtl1t aequiTed no title under the deed· execute:dby N. S. Garrett, administrator of Junaluska,as the court of equity had no jurisdiction of the case iIi, which the decree and confirmation ofsale were made. The objection urged to the Jqrisdiction of the courtdsthat a: court of equity, as it then existed in this state,
-theilarid. inrColatroversy.
SMYTHE II. HENRY.
7il'
had no power to grant a license to an administrator to sell the lands of his intestate to realize assets for the payment of debts. Every tion of property, whether real or personal, is liable for the payment of debts, and it is the' duty of a personal representative of a decedent to make sale of a sufficient amount of property to pay the debts against the estate. '1'he personal property must first be sold to make assets, and, if not sUffioient, then the lanM devised or descended upon the heirs must be sold, and creditors could in a court of equity compel suoh' personal representative to make sale of lands to realize assets. By the act of 1846, (Rev. Code, c. 46, § 44,) an executor or admin. istrator was directed to apply by ;petition to the county or superior court for a license to sell lands to make assets for the payment of debts .when the personal property which came to his hands was The heirs, devisees, arid other persons interested were required to be 'made' parties, and when all parties were before the court a decree could 'be' made for the sale of all or such part of the land as should be deemed proper. This was in the 'nature of an equityproooeding, to be heatd on the law side of the docket by the same judge who held the, court orequity, and was intended to furnish a moresilliple '!lnd less expensive mode of procedure than had before prevailed in subjecting lands to' the payment of debts contracted by decedents. CourUJ'of equity have long assumed con.cunent jurisdiction in the administrationofosseis; and have often exercised such jurisdiction in cases of complicatiOil and diffi..; culty. Previous to the constitutioh<of 1868, there were separate courts bf equity in this state which were invested with as full and 'complete equitable jurisdiction as is now exercised in equity: by the circuit courts ofthe United States.- Tenants in common could bavepartitionbyproceedings in a court of law, but if it was forptheirbest interest to have a sale of the land they had to resort to a court of equity. Donnell'v.Matter,' 7 Ired. Eq·. 94.', Courts of equity freely exercised jurisdiction in decreeing the sale of lands belonging to infants for the paymentufdebtsj:or other purposes' of manifest benefit. Williams v. Harrington, 8!J:P1'a,., sUtton v. Schontoald, 86 N. C. 198; HO'Uston v. Houston, Phil. Eq. 95. Under the will ofJunaluska , his widow was devisee for life, with remainder in fee to her infant children.- In their petition to 'the court of equity they represented that the estate of their testator was largely indebted, and that their immediate wants and, best interests required the sale of the land. Surely the joinder of the administrator in their petition did not oust the jurisdiction of the court of equity in giving its beneficent relief to the widow and children which they so earnestly prayed. Hinton: v. Powell, 1 Jones Eq. 230. The court certainly' had jurisdiction of the subject-matter, and the consent of the administrator gave the court jurisdiction to make a decree that a part of the proceeds of sal,e should be ap..; plied to the payment of debts. Greer v. Cagle, 84 N.C. 385; Mills v. McNinch,99 N. C.517 ,6 S. E. Rep. 386. There was another ground ofequitahle relief which clearly"8ustained the jurisdiction of the court of equity in decreeing a sale. Thepet:itioner ssary·for Nicey.wasadevisee for life,and a sale of the landl!was nElC
712
];'EDERAL REPORTER,
the.paymllnt of the debts 'of the. devisor. The statute (Rev. Code, c. 118,,§8}secures to the widow in ,such cases the equity of subrogation, by provic)ing that the lam} devised to ,a widow shall be exempt from liability to creditors, in the Same way that her dower would have been to the extent of the ,value of the do:wer. Such rights of the widow, under the old system of courts in this state, was enforced by a court of equity, and there isna reason why the aqministrator should not consent to hecome a party to a friendly ex parte petition in equity, and have the rights OJf all I?ersons ascertained and adjusted. Mitchener v. Atkinson, PhiL l£q. 23; EX parte Avery, 64 N. Y.113. In this case, on petition of the widow, the children by their gUllrdhm, and the administrator of Junaluska, the court of equity decreed a sale, the sale was made, and G. W. Hayes waS the purchaser at /'l.nadequate price. The sale was duly confirmed by thQ,CQurt, the purchase ,money was paid,and part was applied to the payment of debts, f.nd· the balance was distributed to the widow and the guardian of the children under the arrangement and order of the court. When land 'hils been sold under the decree of a COUf:t of equity, the purchaser will be protected against the legal claim of anyone who, or whose guardian, wag a party to the decree. Sinclair v. Williams, 8 Ired. Eq. 235; McNitt y. Turnet.', 16 Wall. ,352. During th'Q late civil war the court-house of Cherokee county was bUl'ned,andmanyof the papers and aJarge part of the record in the ca3e were destroyed. The original petition, the report oftheQOmmissioner of sale,som.e fragmenteof papers, and.a few docket entriee uwere preserved. At March term, 1872, of the superior court of Cherokee ,cQu.nty, ,to which the records of the. former court of equity were transferred by exprellS provision of law, It motion was made in the cause to institu.te proceedings to restore the lost record and papers. 'rhe court could properly grant the motion. Stanly v. Massingill, 63 N. C. 558. Atlord$>wasmnde referring the matterto the Honorable A. T. Pavidson, a lawyer of high character, distinguished ability, and long and large professional experience in that court; and he was and directed to take testinwny on the subject, and report, as far as possible, the nature and contellts of. such lost reoorrl, aud the'evidence upon which he founded his report. All available evidence was taken by the commissioner, and he made a report, and by order of the court such report was entered upon the record, and declared to be the record of the case. A duly-certified copy of such restored record is now before me. There is an act of congress, and also a, statute of this state, providing modes of pr,ocedure for, putting in permanent form proof of the contents of'judicialrecords, lost or destroyed; such proof to take the place of the original records for all purposes. proceedings are not the only m,ethods by which the contents of lost and destroyerl records may be shown in evidence. by interested parties. Hare v. Hollomon, 94 N. C. 14; Mobley v. Watts, 98 N. C. 284,3 S. E. Rep. 677 · I have no judicial power to declare such restored record inoperative after it has been made by, a .courtof competent jurisdiction, and I have no inclination to do SOt as the Cacts and circumstances satisfy me that such xecord 'il:I
713
correct, and in furtherance of substantial. justice. Cornett v. Williams, 20 Wall. 226; Williams v.Harrington, supra. That record shows that James Junaluska, a defendant in the case now before us, was a party to the proceeding under which the land in controversy was sold at judicial sale to G. W. Hayes, who paid full value, and such purchase money was honestly applied in the payment of the debts, and in distribution among the widow and children, of old Junaluska, and the defendant received his proportionate share. The court properly marlean order for the deed to be executed by Garrett to tho present complainant, as he was a'bona, fide purchaser of all the legal and equitable rights of G. W. Hayes. In the case of Sinclair v. WiUiams, 8 Ired. Eq. 236, the facts being similar to those in this case, the counof equity e:aid: "The plaintiff has a clear right to the>. interference of the court. He is a purchaser under a decree, and the court is bound to enforce its decrees, and to protect those who act under its orders." DaiJis v. Gaines, 104U. S. 386; Hare v. HoUomon, 94 N. C. 14. . There is another equitable right of the complainant in this caseagairist James Junaluska, which can only be admioistered on the equity side of this court. He purchased all ,the rights of G. W. Hayes; who was ;a bona Jide purchaser at the sale of N. S. Jarrett, administrator ofJ1.'1n'iiluska, and the purchase money was applied 8S heretofore stated: If Hayes Required.no title to the land, he had the clear right to ,apply to a. court of equity to be subrogated to the rights of creditots anddevisef:l8 to the extent of the purchase money, and hold the limd boundi'for repayment, and for reimbursement for expenditures for 'improvements which increased the value of the land, afte: deducting rent and profits over and above the interest of the purchase money. Perry v. Adams, '98 N. O. 167, 3 S.E. Rep. 729. I will not further discuss this phaseo! the subject, as I think that the defendant James Junaluska was bound by the sale, as he was a party to the decree under which Jarrett sold the land; and the complainant is clearly entitled to have a decree for a perpetual injunction restraining such defendant from further prosecuting his action of ejectment now pending in this court. I will now proceed to consider the objections to the jurisdiction 'of this court, so ably and confidently urged by the couosel of' the defendantll in their printed argument and brief of cited authorities. It is unnecessary for me to dwell upon that part of the argument that relates to the technical name and nature of the bill of complainant, as that matter is well settled by decisions of the United States supreme court. The billha:s the form and many of the elements 'of an original bill, and could be: 80 considered if there was no other litigation existing between the parties in this court about the same subject-matter; and no objection could be made to jurisdiction on account of the citizenship of the partieS,8tl the cOl1l.plainant is a citizen of Ohio,and the defendants are citizensot this state. The bill is an auxiliary bill, filed to prevent injustice and inequitableadvantage in an action at law now pending in this court between the same parties and about the same subject-matter. Jones v; Anarewa, 10 Wall. 321; (Jhristmaa v. RU88eU, 14 Wall. 69; Krippenaorjv. Hyde, 110
vol. 41· .:o..S.. 276, 4 Sup. Ct.. Jiwill refex in generllHermsto the prima ·facie case made out by the pleadings, and the .proof offered by the plainwas .a;bonafitk, purchaser of the ·,tiff. It appears. thattAQ; )ap,ili! incon1roYllfsy at,p.jlil4iciahale·jthat he paid ful1valuejthe sale ·\'Va.s d1;lly cqnfiPPe<l by t};1e a deed executed, and he su<;h possession to the time he .filed 4is;. j. said .ltuidshe had .no notice of any . pi thedefeuMnts, Iln<ithe defendantR.M. Henry was atpartieS tp;the decree ofsale, .and was cognizant QbJl t4e which. the land was ,sold to complainthe. defen<.lant: Henry caused to be a dee<i iosa:id ).and Jllnaluska to,S. P. She.rrell, ,TSQllaJ.:Y lal!loQauslj1$l to be J;'egiE!tered,a deed to himself by . datedMArch 3, that both pf said ,their liegu).ar, .form, but were Wjth911t any adequate consideration.j; that .obtained a indu,e .form frQI;n saiq 17jQ.(J'qlYI 1873, and founded upon an 1, before .the sale qf thl31and. to COmOll tbe the defendant Henry a,c;:tjQn cOJIlPlainant to reC01'er the of: ffl,nd., JlQ.lhlQ.q!\ a.ctioQ was tq this cqurt. where circUIDStfl;Doe&.a1one, which a.re the ,at! a bonafide purchaser, bad ample have. !'lIlid·<leeds and ,grant ca.n·gro\l.:n4.f.or tp reJ,Uove: his title. ' , ' . . of otheqIu\tterlil of fact teJ).ding,jo the rflscJssiop oithe unregistered Sb,e\,reJl\>y; aAtiI,f,the parlies; .theaOalldQnment of all.clu.im li,mdo.Jl the Pllrtof.$heJ:J:'",U;.hi$ the cla;im and long W., I:JlI.y.esj ·in the ,Jegllt under whic4tl¥! f!.dministrator .of·Junall1skasold .the .m-pds. to G. judicilil< sale; .and his full knowledge of .the 1(1gal proceedings under .whichtAe .l!-Pmil1istrator of Hayes sold the c01;nplainant lilt said w.ade no claim to executed a. to defendant :E{enJ:Y for anomin!1l oonand; that said :Henry Sherrell's conne<;.n9Il wit/l" his :J1elatjogs claiming .and, pos[Qt. 30yea% and, the:title of Hayes. as. be ·W4s,tbe legal a,dviser and I\tt9rnElY; ()f the children of Hayes, whentbe wlj.S;.soll;Lbythe adm!oistrat<)r of Hayes, when cOll1plain.ant became AI! totl;tese and, pla.intiffseeks aid him in estl!-blishing hi!lright to the ,pt:ayed {Qr iQ his biHor complaint..: . .' ': :,; d.Jt.Js thnt pllj.intiff has the right,. l,tndcan: bavethe. 0ppor...mttY;,;Q.f Pf9ving all of.his. in the action! of Inw: now pending IPa,thd",w, ,siete 90u.rt j l)nd that, thus 1\ complete· and' CBQilot Alai,ntain this .suit in equity" .. I· readily i4El r;'lJ!1 qf Qftenli\Ilnoullced by.CoUrts of
SMYXHE V. HENRY.
715'
equity, and fixed in statutory form in sectio11,723 or the United States Revised Statutes. The supreme, court of the United States has o'len said that this statute was merely declaratory, making no alteration rules as to equitable remedies. The prinCiple announced in Boyce v. Grundy, 3 Pet. 210, has often been affirmed and applied. To bar a suit in equity, the remedy at law must be as efficientt() the ends of justice, and its complete and prompt administration, as the remedy in equity. In the United States circuit courts of equity it has been held that the legal remedy must be such as can be afforded on the law side of the docket. It is well settled that United States courts are not ousted of their equita.blejurisdiction, or even restricted, by state legislation conferring such jurisdiction upon courts of law. Equitable relief in United States courts can only" be administered by" proceedings on the equity side of the court. McOonihay v. Wright, 121 U. S. 201, 7 Sup. Ct. Rep. 940; Ridings v. JohnBOTI., 128 U. S. 212,9 Sup. Ct. Rep. 72. If a defendant in an actiori' at law has equitable grounds of relief against the plaintiff, he must seek' to enforce them in a sepllratesuit in equity, and, on bis dQing so, the action at law will be suapended until such equities are determined. Railroad Co. v. Paine, 119 U;·S. 56.1, 7 Sup; Ct. Rep. 323. The right to enforcediscovery has ever been regarded as one oithe oldest, plainest;, and most effective remedies of equitable jurisdiction, and is not taken' away hy imy increased Jegal remedy. 1 Story, Eq. Jur. 64; Oliveftt1.v; University,.Phil.Eq.69. The fact that a plaintiff can have concurrent remedies at law and in equity will not oust the court's equitable jurisdiction; The rule as'tb" adequate and completeremerly at law does not apply to cases where the concurrent jurisdiction of the court of equity has been long and fullyestablished,and often exercised. U. S. v. Myers, 15 Myers, Dec.§ 938. In every bill that seeks relief the complainant is entitled to Q discloaur.e from the defendant, on his oath, of thet,ruth of the mattersandcirCUlDstances constituting the plaintiff's case, as alleged in his bill. 'This right of discovery is,especiallyimportll,nt ina case like the one before us, where the nature of the alleged transactions have been obscured by long: lapse o:r tiroe,and nearly all the perso1l$ i who would probably know the attendant facts and circumstances are dead. The mere fact that statutes, uponcourts of law t he pbwer to compel parties to reo- . have ord to testify as witnesseil'does not deprive a party in courts of the Unit- ' ed States of the right of discovery in equity when seeking equitable reIf lief·. Such legal remedy is not as effectual as a plaintitlshould iritroducehis adversaryils a'witness, he is not allowed to assail the character) of, or cross-examine, his own witness. Strudwick' v. B1'Odntlll:,S3.·N.C.40lj Bell v; Pomeroy. 151Myers, Dec. § 2125; This method of ettamiriation i,s'notas efficieriLas skillfully drawn interrogatories in eqUity, whfuhthe defendant 'DlUst ;answer fully, directly,posi-" tively,and,to,the best of his knowledge, information, and belief. 'By exeepting -to tb.einsuffi'Ciency of an answer, aplailltiff can have nUthe' benafits of andgivarise to no impliealroh as' to, t;he good.ohar&9ter oftha. defendant. '
J
716
IUs further insisted that the complainant can have full opportunity in tha,pendilig action at law to prove the invalidity of the deeds and gl1.JltQfdefendants. This'is notthe equitable remedy which the plaintjif $eeks in this suit. The deeds and grant are all regular 011 their face, duly registered, and the complainant wishes to have them canceled, so as to remove the cloud from ,his title. Where a· deed is void, and, can ,be so proved at law, courts of equity still have jurisdiction to cancel them to remove a cloud from title. Such jurisdiction is inherent in courts of equity, and is readily exercised when there is an instrument that ought not to be used or enforced, and it is against conscience for the holding it to retain it. 2 Story,Eq. Jur. § 700; Holland v. Challm, 110 U. S. 15,3 Sup. Ct. Rep. 495. Equity is the proper forum to hlJ,},;e a subsequent state grant declared void. Benzein v.Lenoir, 1 Dev. Eq., 225;Jo'l'l,eB v. McMasters, 20 How. 8. Every instrunlentpurportingby source of title, however in:' its terms to convey land from valid,,,cxeates a,cloud UPQlll the title, ifit,requires extrinsic evidence to sh<>!W,lite validity,' and the. exist.ence of such patent furnishes' ground for Vanlf,ychv. K'I1i6lJa1.s,106U. S. 360;:J"Sup. Ct. Rep. 336" 'There.is another ground ofequitable jurisdiction arising out of the peculiar facts and circumstances of this case. Courts of equity are better8.<bl.pted:to the settlement of questh:)ns relating to the title to land areclaimad under different patents and entries, and such questions ought to be excluded from courtsoflaw. Polk v. WCIldal; ,.9 87-99;,1 Story, Eq. Jur. § 437. 1 have already suillciently:referred tQthe various claims of different parties :totheland in controversy, founded upon an original grant that required legal construQtiqn; upon a subsequent grant; upon an old and long unregistered upon ,oqlor of title,and possession; upon equitable estoppels; upon a judicial sale., 'where no deed was executed to the purchaser, as ordered by;the court, snd the record:of such proceeding was destroyed 'by fire; , and ,the, evidence of attendant circumstances is obscured by long lapse o,f :thn6.; and .much of thetestimQny is lost by the death of parties and witneSf'les; . Surely this, complication of Claim and title can be more efunra..velled, and the rights of parties ascertained, and justice properly administered,by tbe flexible and easily adjusted modes of Ilft¥led1llre in a court of I than by the excited contentions before a jQ.ry i'la' a'j trial at Jaw. . Mnch of equitable jurisdiction consists of bet-' ter,and.D1ore effe.ctive remediesJor adjusting and attainillgtherights of· PWti4;ls.),There are elements of actun1 and constructive fraud il.llegedin tlwbill j prese.nted in the proofs,andstrongly urged in the argument of of the complainant, that would 'afford clear ground for equijurisdictioul but I will 'not dwell upon such mattei's, as other al. legations Qf the J:lomplainant's bill are sufficientlj' sustained by the proofs to the land in controversy, and: ,warrant therelieL having acquired jurisdiction of the subject.mat. terlJa;J.)d it, tlPpe/l.ring ,that the complainant, ha,sa just, title t6 the landa in in ,this suit, it, is the. duty and it is within the power of this court to give him complete relief:aaito; the action ofejectmentn,ow pend.
NEW ORLEANS&: PAC. RY; CO. 'V. UNJONTRUST CO.
717'
ing on the law side of thiseourt, and as to the cloud that rests upon his title. 1 Story, Eq. Jur. § 64k;Ober v. GaUagher,93' U. S. 199; Ward v. Todd: 103 U. S. 327; U. S. v. M.'lJers, ifUIP1'a. A decree may be drawn directing the cancellation of the deed executed by Junaluska to S. P. Sherrell, dated January 22, 1847, and the deed executed by S. P. Sherrell to R. M. Henry, dated March 3, 1873; and also declaring void the grant of the state to R. M. Henry, issued 17th day of July, 1873; and also directing a writ of injunction to be issued and served on the parties defendant in this suit, perpetually enjoining them as to the further prosecution of the action of ejectment now pending on the law side of this court, originally docketed R. M. Henry v. George B. Smythe. Let the defend-, ants be taxed with costs.
NEW
& P.(\.C. Rv., Co. et aJ.1i.,UmON ,'(CircwLt OO'Uh't, E. D.
TRUST
CO: et ' ",
March 21, 1890.) COMPANIES...
IIORTGAGE-ApTER-AcQUIRED.
A railrolLd company mOfl'!'l'aged the wbole of its line in tl;le state of Louisiana; "also aU real. and personal estate 'within' the' state owned by the company at the date of ",hjch !!lay be a<:qulred by it, tb;ereafter, Ill} necessary for the operation;of said line. special autbority to mortgage to the COmpany, br. its cM,I't,erdid n,ot'authorlz,e it to mortgage after-acquired land' grant. , Rev. CiVil Code La. art. B308, provide,,tbat" future property can never be f,bs eubjeot mortgage. "Held,'that said mortgage did not aflectliul'd thereafter granted to the company to aid in tbe'eonstruction of the road. ' "
In li::quity; Bill to remove cloud from title. Howe & Prenfti88, for complainant. F'rank N. Butler, for Union Trust Co. " PARDEE, J. The question, presented in this case is a mOt;tgage grantell, by ,the New Orleans; Baton Rouge & Vicksburg Railroaq .company, Qll(l of the cOnlplainants herein, on ,the 1st day of October; 1870, to secut;ean issue of ,bonds made by said complmy, bears upon :and affects the lands thereafter, upon the 3d of :March, 1871, granted by the COIlgresS of the United States to tbesaid New Orleans, Baton Rouge ,& Vicksburg Railroad Company and .its assigns, to aid in the construction .of a railro:;l.d in New Orlel;lns, and, in connection with the Texas & Pacific Railroadst it!! eastern terminus at $hreveport, La. See .Acts Congo 1871. In said act of mortgage the property claimed to affected, ,therehycovers the whole; of the line of the raUroadof 88;idcompany; within the ,state of Louisiana, partictllluly .describing and, setting forth, same, ""together ,with th,e, rightlil J){Way, road-beds, rails"depots, stations, ahops> buildings" :ro!J.chinery;toolsj tenders,a.nd other,;rollil1g stock; also,wLreal.llpd, p6l'sonr engines; :8l estate within, the state of Louisiapq. oWllerl by;the /;iaid ,date ofthis nlortgage,otwhich, may:be ac::quired by, it therMftet', all, .nec;:essat3 :(6f of; fof