Under a writ of possession on a judgment entered in January,
1886, in a suit brought in a circuit court of the United States by
C. against M. in March, 1884, L. was evicted from land, and the
agent of C. was put in possession. L. was in possession under a
sheriff's deed made in August, 1885, under proceedings in another
suit against M. L. brought a suit in equity, in the same circuit
court in April, 1886, against F. as testamentary executor of C. and
individually, to have the suit of C. declared a nullity for want of
jurisdiction, and because L. was not a party to it, and for an
injunction restraining F. and the agent of C. from molesting L. in
the possession of the land. On demurrer to the bill,
Held:
(1) The case was not one for a suit in equity.
(2) The possession of L. was that of M., and L. as a purchaser
pendente lite was subject to the operation of the writ of
possession.
(3) The proper decree was to dismiss the bill without prejudice
to an action at law.
The case is stated in the opinion.
MR. JUSTICE BLATCHFORD delivered the opinion of the Court.
This is a suit in equity, brought by a bill filed April 15,
1886, in the Circuit Court of the United States for the Western
Page 144 U. S. 120
District of Louisiana by Laurent Lacassagne, a citizen of
France, against Francois Chapuis, a citizen of Switzerland, in his
capacity of testamentary executor of Jeanne Caroline Cave
Cavailhez, hereinafter called the widow Cave, and in his individual
capacity. The subpoena was served on the defendant in person at New
Orleans, Louisiana, May 5, 1886, and he, as such testamentary
executor and individually, appeared and put in a demurrer to the
bill. The demurrer was sustained and a decree was entered
dismissing the bill, from which decree the plaintiff has appealed
to this Court.
The contents of the bill are as follows: the plaintiff is the
owner of a plantation situated in the Parish of Vermillion,
Louisiana, on the east side of Bayou Vermillion, having a front of
10 arpents by 40 arpents in depth, with the buildings and
improvements thereon, and the plantation equipment. He acquired the
ownership of the property, with Albert G. Maxwell, in judicial
proceedings prosecuted in the District Court for the Parish of
Vermillion in the suit of
Albert G. Maxwell v. Marceline
Cavailhez, and by sheriff's deed signed by the sheriff of the
parish, dated August 15, 1885. The plaintiff acquired the interest
of Maxwell in the property by act of sale October 22, 1885, and
thereby the whole of the plantation became his property. The widow
Cave, alleging herself to be a citizen of France and to be the
widow of Baptiste Cavailhez, deceased, on or about March 5, 1884,
instituted a suit in equity in the same circuit court of the United
States wherein she was complainant, and Marceline Cavailhez, widow
of C. H. Remick, in her own right, and as tutrix of her four minor
children, named Remick, and as tutrix administering the estate of
said C. H. Remick, was defendant. In that suit, the widow Cave
claimed, as the widow in community of Baptiste Cavailhez, to be the
owner of one undivided half interest in said plantation, and that
the other undivided one-half interest therein was burdened with a
tacit mortgage to secure $5,310 paraphernal property due her by the
succession of Baptiste Cavailhez. The prayer of the bill in that
suit was that the plantation be decreed to be still the property
"in division" of the estate of Baptiste Cavailhez; that the widow
Cave be recognized as
Page 144 U. S. 121
the owner of one undivided half of the plantation, and as a
mortgage creditor of Baptiste Cavailhez, in the sum of $5,310, with
legal interest from judicial demand, on the undivided half of the
plantation belonging to Baptiste Cavailhez, and that process issue
against Marceline Cavailhez, widow of C. H. Remick, in her
individual capacity, and as tutrix of her minor children, and as
tutrix administering the estate of said Remick; but the bill in the
suit by the widow Cave nowhere averred that Marceline Cavailhez was
in possession of the plantation when the suit was brought, either
for herself individually or as tutrix as aforesaid or by agent or
employee.
The plaintiff and Maxwell were mortgage creditors of Marceline
Cavailhez, and their mortgage was duly recorded in the mortgage
office of the Parish of Vermillion at the time, and before the suit
brought by the widow Cave against Marceline Cavailhez was
instituted; the recording operated as notice to the widow Cave and
all the world, and no right or interest of the plaintiff or of
Maxwell could be passed on in that suit or be affected by the
decree therein made, without their being made parties to the
suit.
The court was without jurisdiction to entertain that suit; the
widow Cave was not a citizen of France, as she falsely alleged
herself to be, to give the court jurisdiction of the parties, but
was a citizen of Louisiana, residing at New Orleans; a fraud was
practiced on the court, and the proceedings were null and void, and
should be so decreed to be.
The judgment rendered in that suit, on January 11, 1886, decreed
that the widow Cave be "recognized as the lawful widow of Baptiste
Cavailhez," and as such "entitled to and decreed to be the owner of
the undivided half of all the property above described," including
with other property the said plantation and its paraphernalia; that
she have judgment against the estate of Baptiste Cavailhez in the
sum of $5,310, with legal interest from February 25, 1884, and that
her mortgage to secure said sum and interest on the property of
Baptiste Cavailhez, to take effect from April 13, 1863, be
recognized and enforced. On the second of February, 1886, a
petition was presented to the court for a writ of possession
under
Page 144 U. S. 122
said decree, and was granted, and a writ of possession was
issued to the marshal, by which he was ordered to eject Marceline
Cavailhez and those who might be holding said property under her,
"by private deed of transfer or otherwise, since the institution of
the aforesaid suit, to-wit, March 5, 1884, and during the pendency
of said suit," and to put the widow Cave in full possession of said
property. Said writ was not warranted by the decree, was issued
improvidently and upon a wrongful suggestion, and was null and
void. It was executed on February 5, 1886, "by serving the writ and
copy of judgment" on one Armintor, "who was living in the house and
had charge of the property, and he being a major," and the return
of the marshal, filed February 10, 1886, states that he took
possession of the plantation and improvements, and then placed them
in the possession of one Brulard, as the agent of the widow
Cave.
The plaintiff, Lacassagne, was in possession of the plantation
as owner, by his laborers, servants, and employees, when the
marshal pretended to execute the writ. Brulard came upon the
plantation and now occupies a portion of the dwelling thereon, but
the carpenters and laborers thereon have been continuously, and
still are, in the service and pay of the plaintiff. He is deterred
from going upon the plantation, and exercising his rights of
ownership, by the violence and threats of Brulard. The plaintiff
claims to be in possession, though his possession is disturbed and
interfered with by Brulard, acting under direction of and advice
from the defendant.
The plaintiff has not been a party to any suit, and is not bound
by any order of a court until he has an opportunity to be heard.
Though the acts were in the name of the widow Cave, yet the
plaintiff charges that she was instigated to do all that she did by
the defendant. Brulard is an agent and under the control of the
defendant and of the court. The whole proceeding was void for want
of jurisdiction of the parties. The plantation is deteriorating in
value, and the season for planting and preparing for crops is
passing, and irreparable injury is being done to the plaintiff. An
injunction
pendente lite is necessary to restrain the
defendant, as testamentary
Page 144 U. S. 123
executor and individually, and his agents and employees, from
interfering with the possession of the plaintiff or molesting him
or his agents and servants on the plantation. A restraining order
ought to issue, pending the motion for an injunction, and the
injunction be made perpetual on a final hearing. The plaintiff is
without a full, complete, and adequate remedy at law, and must
resort to a court of equity to have his rights determined and
secured.
The prayer of the bill is that the suit so brought by the widow
Cave be declared an absolute nullity because there was no
jurisdiction in the court over the parties; that in case said suit
was properly brought between the parties thereto, it be decreed to
have no force or effect against the plaintiff herein, he not having
been a party to it, and the decree not operating against him; that
the writ of possession be decreed to be void, and the possession of
Brulard illegal, and Brulard advised to vacate the premises
occupied by him on the plantation; that an injunction issue, to be
made perpetual at the final hearing, commanding the defendant, as
testamentary executor and individually, his agents, servants, and
employees generally, and Brulard in particular, to desist from
interfering with or molesting the plaintiff in the possession of
the plantation, or his laborers, servants, and employees; that a
restraining order issue pending the motion for an injunction, and
for general relief and process.
The demurrer of the defendant, as testamentary executor and
individually, alleges as cause of demurrer a want of equity in the
bill.
We are of opinion that the decree must be affirmed. The suit by
the widow Cave was brought in March, 1884. The deed of the
plantation from the sheriff to the plaintiff and Maxwell was dated
August 15, 1885. That deed was given in judicial proceedings
brought by Maxwell against Marceline Cavailhez, widow of C. H.
Remick. The title of Maxwell and the plaintiff was acquired during
the pendency of the suit brought by the widow Cave. The marshal
properly executed the writ of possession, and put the property into
the possession of Brulard, as the agent of the widow Cave, and such
possession
Page 144 U. S. 124
was held by Brulard when the present suit was instituted by the
plaintiff. The plaintiff was out of possession when he instituted
this suit, and by the prayer of this bill he attempts to regain
possession by means of the injunction asked for. In other words,
the effort is to restore the plaintiff by injunction to rights of
which he had been deprived. The function of an injunction is to
afford preventive relief, not to redress alleged wrongs which have
been committed already. An injunction will not be used to take
property out of the possession of one party and put it into that of
another. 1 High on Injunctions, 2d ed., ยง 355.
The question here involved is a dispute about title. The
plaintiff has a full, adequate, and complete remedy at law, and the
case is not one for the jurisdiction of a court of equity. If the
plaintiff was in the possession of the plantation when the judgment
in favor of the widow Cave was rendered on January 11, 1886, and
when the marshal executed the writ of possession of February 5,
1886, it does not follow that the fact that he was not a party to
the suit in which it was issued could prevent his being evicted
under the writ of possession. A pending suit in regard to real
estate is notice to all the world. During the pendency of the suit
brought by the widow Cave against Marceline Cavailhez, the
plaintiff undertook to acquire rights in the plantation under
Marceline Cavailhez by the sheriff's deed, to the prejudice of the
widow Cave, and his possession, so far as it affected the latter,
was the possession of Marceline Cavailhez, and the writ was
properly issued and executed. It is provided as follows by the
Civil Code of Louisiana, art. 2453:
"The thing claimed as the property of the claimant cannot be
alienated pending the action, so as to prejudice his right. If
judgment be rendered for him, the case is considered as a sale of
another's property, and does not prevent him from being put in
possession by virtue of such judgment."
As the plaintiff was evicted, and the plantation was put into
the possession of the widow Cave, a court of equity cannot give the
plaintiff any relief until he has established his title by an
action at law. Under the jurisprudence of Louisiana, the
Page 144 U. S. 125
claim of the plaintiff is a "third opposition." By the Code of
Practice of Louisiana, art. 401, a third opposition is defined
as
"a demand brought by a person not originally a party in the suit
for the purpose of arresting the execution of an order of seizure
or judgment rendered in such suit, or to regulate the effect of
such seizure in what relates to him."
It is a suit at law, a short, summary, proceeding, and not a
formal one in chancery. Code of Practice, art. 298;
Van Norden
v. Morton, 99 U. S. 378,
99 U. S.
381.
It is well settled in regard to land that when a suit is pending
in regard to it, a person who purchases under the defendant
pendente lite is subject to the operation of a writ of
possession if one is finally issued on a judgment in the suit.
Walden v.
Bodley, 9 How. 34,
50 U. S. 49;
Terrell v.
Allison, 21 Wall. 289;
Tilton v. Cofield,
93 U. S. 163;
County of Warren v. Marcy, 97 U. S.
96,
97 U. S. 105;
Union Trust Co. v. Southern Navigation Co., 130 U.
S. 565,
130 U. S.
570-571;
Mellen v. Moline Iron Works,
131 U. S. 352,
131 U. S. 371.
The fact that the plaintiff and Maxwell were mortgage creditors
of Marceline Cavailhez, and that their mortgage was duly recorded
in the mortgage office of the parish before the suit brought by the
widow Cave was instituted, is of no consequence so far as the
present suit is concerned. If the rights of the plaintiff or those
of Maxwell under that mortgage could not be affected by the decree
made in the suit brought by the widow Cave because they were not
made parties to that suit, the result is simply that the decree in
that suit had no effect upon their rights under the mortgage. But
that fact has no bearing upon the matters sought to be litigated in
the present suit. The mortgage, if valid, still remains valid, and
lawful proceedings can be had upon it, subject to such defenses as
may be interposed in regard to it. The title of the widow Cave to
the plantation under the suit brought by her is subject to the
rights of the plaintiff under the mortgage executed by Marceline
Cavailhez, this bill in the nature of a bill of review is not the
proper mode of enforcing the rights under that mortgage. The widow
Cave was not bound to make the plaintiff or Maxwell, as mortgage
creditors of Marceline
Page 144 U. S. 126
Cavailhez, parties to the suit she brought, and their rights as
such creditors were not affected by the decree in that suit.
As to the allegation in the bill that the court was without
jurisdiction of the suit brought by the widow Cave because she
alleged falsely therein that she was a citizen of France, when in
fact she was a citizen of Louisiana, and thus the court had no
jurisdiction of the suit as between her and Marceline Cavailhez,
that question cannot be raised and adjudicated in this suit. By the
record of the former suit, there appeared to be jurisdiction, and
the plaintiff cannot question it by means of this suit when the
question is not raised by Marceline Cavailhez, who was the
defendant in the former suit.
Although the present suit is one between two aliens, yet
inasmuch as it is brought in the same circuit court in which the
former decree was rendered, and to impeach that decree, we think
that the court had jurisdiction. That being so, it had authority to
make a decree on the merits.
The decree dismissing the bill absolutely must be so modified as
to declare that it is without prejudice to an action at law, and,
as so modified, it is affirmed, with costs.
Horsburg
v. Baker, 1 Pet. 232;
Barney v.
Baltimore City, 6 Wall. 280;
Kendig v.
Dean, 97 U. S. 423;
Rogers v. Durant, 106 U. S. 644;
Scott v. Neely, 140 U. S. 106,
140 U. S. 117.
Decree affirmed as modified.