In 1870, M., a citizen of Indiana, filed a bill in equity in the
Circuit Court of the United States for the District of Nebraska
against R., a citizen of Nebraska, to establish his right to real
estate near Omaha to which H. set up title. Each claimed under a
judicial sale against P. M. obtained a decree in 1872 establishing
his title and directing R. to convey to him or, in default of that,
authorizing the appointment of a master to make the conveyance. R.
refused to make the conveyance, and it was made by a master to M.
under the decree. The entire interest of M. came by mesne
conveyances to W., a citizen of Nebraska. R. reentered upon the
premises and set up the title which had been declared invalid in
the decree of 1872. W. thereupon filed in the same court an
ancillary bill praying that R. be restrained from asserting his
pretended title and from occupying the premises, that he might be
decreed to have no interest in the lands, that a writ of possession
issue commanding the marshal summarily to remove R., his tenants
and agents from the premises,
Page 150 U. S. 402
that R. be perpetually enjoined from setting up his claims. R.
demurred on the ground of want of jurisdiction by reason of both
parties' being citizens of the same state. The demurrer was
overruled, the defendant answered, and upon the pleadings and
proofs, a decree was entered for plaintiff in conformity with the
prayer in the bill.
Held:
(1) That the bill was clearly a supplemental and ancillary bill
such as the court had jurisdiction to entertain irrespective of the
citizenship of the parties.
(2) That the original decree not only undertook to remove the
cloud on M's title, but it included and carried with it the right
to possession of the premises, and that right passed to W. as privy
in estate.
(3) That certain facts set up as to an alleged transfer by M of
his interest to a citizen of Nebraska before filing his bill could
not be availed of collaterally after such a lapse of time, and with
no excuse for the delay.
(4) That the property claimed could be fully identified.
(5) That until R. should give notice that his holding was
adverse to W., the latter was entitled to treat it as a holding in
subordination to the title of the real owner under the decree of
1872.
The appellee, as a privy in interest and estate, filed the bill
in this case for the purpose of carrying into execution a former
decree of the court, rendered in 1873, against the appellant in
favor of Oliver P. Morton, by which the latter's right and title to
a certain parcel of land was settled and established and to which
title and interest the appellee thereafter succeeded.
The proceedings in which the original decree was rendered were
begun in 1870 in the Circuit Court of the United States for the
District of Nebraska by Oliver P. Morton in a suit against Allen
Root, the appellant, to establish his right to certain premises
near the City of Omaha and to have the claim which Root asserted
thereto declared a cloud upon his title. Both parties claimed the
land under judicial sales previously had against one Roswell G.
Pierce. The decree established the superiority of Morton's title
and ordered that Root should execute a conveyance of the premises
to him within a designated time, and upon his failure so to do, a
special master appointed for that purpose was invested with the
authority and directed to make such conveyance. Root did not appeal
from this decree, which remains in full
Page 150 U. S. 403
force and unannulled or reversed, but he refused to make the
conveyance, and the special master thereupon, by deed, transferred
the property to Morton.
Thereafter, in June, 1873, Morton conveyed an undivided half
interest in the premises to James Woolworth, the appellee, and the
other half interest to his brother, William S. T. Morton. Upon the
death of the latter, his executors, under power and authority
conferred by his will, transferred to Woolworth the other half
interest in the premises. Being thus invested with the entire
title, and Root having reentered or resumed possession of the
premises, Woolworth filed the present bill against him, in the same
court, to carry into effectual execution the decree which had been
rendered against Root in Morton's favor.
In his bill, after reciting the proceedings under which Morton
originally acquired title to the premises, the suit under which
that title was established as against Root, and the conveyance to
Morton under the decree of the court, Woolworth set forth his
acquisition of the title and alleged that he had laid the property
out into streets, blocks, and lots and made it an addition to the
City of Omaha; that he had sold several of those lots, and that he
had paid the taxes on all of the property since 1873; that he had
remained in undisturbed possession from 1873 up to within a short
time before the filing of the bill, at which time Root had assumed
to take possession of the premises, or a portion thereof, by
building a fence around the same and a house thereon, and in
exercising other acts of alleged ownership over the property.
The bill further alleged that in reentering upon the premises,
Root claimed no rights therein or title thereto except such as were
asserted by him in opposition to Morton's right and title in the
original suit; that his object in retaking possession was to induce
parties to accept leases under him, and thereby drive the
complainant to a multiplicity of actions to recover possession and
reestablish his rights to the premises, and it was averred
that,
"in order to carry the decree of this court made on the 8th of
May, 1873, into
Page 150 U. S. 404
execution and give to your orator the full benefit thereof, it
is necessary that it shall be supplemented by an order of
injunction hereinafter prayed, and unless such injunction be
allowed to your orator, such decree will be ineffective and your
orator will be subjected to a multiplicity of suits in order to
recover possession of the said premises from the parties to whom
said defendant will lease the same. If left to himself, not only
will the said defendant subject your orator to numerous actions for
the recovery of the possession of said premises from many parties
whom the said premises, and will induce to enter upon the same,
but, as your orator is informed and believes, the said defendant
threatens to, and unless restrained by the order and injunction of
your honors will, institute divers actions in respect of the title
of the said premises, and thereby vex, annoy, and harass your
orator."
The bill further alleged that in the sheriff's deed to Morton
under the original judicial proceedings against Pierce, the
premises were described as follows:
"All that piece of land beginning at the northwest corner of
section twenty-eight; thence south eight chains and five links;
thence south eighty-five degrees twenty chains and two links;
thence north nine chains and twenty links; thence west twenty
chains to the place of beginning; all being in township fifteen,
range thirteen east of the sixth principal meridian, in said County
of Douglas,"
which presented an apparent obscurity of defect in the fact that
the word
east was omitted in the second call after the
words "eighty-five," and that the defendant claimed that this
defect was so radical as to afford no identification of the
premises, and rendered the decree void; but the complainant averred
that the sufficiency of that description was considered in the suit
of Morton against Root, and that it was there held that the
omission was no substantial defect such as prevented the title from
passing and vesting in Morton.
The prayer of the bill was that the defendant be by order and
injunction of the court enjoined and restrained from asserting any
right, title, or interest in the said premises and from occupying
the same or any part thereof or leasing or pretending to lease or
admitting under any pretense whatever
Page 150 U. S. 405
any party save the complainant into the said premises or upon
the same, and from making any verbal or written contract, deed,
lease, or conveyance affecting the said premises, or the possession
thereof or the title thereto, and from excluding the complainant
from said premises or any part thereof or preventing him from
taking sole and exclusive possession of the same, and that by
decree it might be declared that the said defendant has not, and
never had, any interest whatever in the said lands, as had been
already declared and adjudged in the former decree, and that a writ
of possession issue out of the court, directed to the marshal,
commanding him summarily to remove the defendant, his tenants and
agents therefrom, and that the injunction, as prayed for, might be
made perpetual.
To this bill the defendant Root demurred for the reason that the
court had no jurisdiction because both complainant and defendant
were citizens of the same state, because the bill was a proceeding
in a court of equity in the nature of an ejectment bill, and
because the complainant had a speedy and adequate remedy at law.
The demurrer was overruled, the court basing its action upon the
ground that the bill was ancillary or supplemental to the original
cause of
Morton v. Root, and was therefore not open to the
objections taken against it.
Root then answered the bill, setting up the same defenses
interposed by him in the case of
Morton v. Root, and
further alleged that the decree in that case was void because
Morton and his attorney had practiced a fraud upon the court in
concealing the fact that, in 1869, prior to the institution of that
suit, Oliver P. Morton had transferred and conveyed the premises in
question to his brother, William S. T. Morton, which conveyance had
been duly recorded in Douglas County, Nebraska, so that Oliver P.
Morton had no title when he instituted his original suit nor when
the decree was rendered against defendant.
The answer further set up that the premises were so defectively
described in the sheriff's deed to Morton under the latter's
attachment proceedings against Pierce as to render
Page 150 U. S. 406
the same ineffectual and inoperative to vest title to the
premises in controversy. The defendant also claimed that he had
been in open and adverse possession of the premises since May 1,
1869, and that the complainant's rights were therefore barred by
the statute of limitations. He further alleged that the decree in
the suit of Morton against Root was one simply to remove a cloud
upon the title, and not to establish or confer any right of
possession.
Upon pleadings and proofs, the circuit court rendered a decree
in appellee's favor in conformity with the prayer of his bill. 40
F. 723. From that decree the present appeal is prosecuted.
Page 150 U. S. 409
MR. JUSTICE JACKSON delivered the opinion of the Court.
Page 150 U. S. 410
It is not necessary to notice or consider separately the
numerous assignments of error presented by the appellant. They may
be reduced to the following propositions: (1) that the court had no
jurisdiction to entertain the bill because it is in the nature of
an ejectment bill, and that there is a full and adequate remedy at
law; (2) that there was fraud on the part of Morton and his
attorney in obtaining the former decree of 1873 by concealing the
fact that Morton, before the beginning of his suit against
defendant, had transferred the premises to his brother, William S.
T. Morton; (3) that there was such defective description of the
premises in the Morton suit and the original decree as rendered
that decree inoperative to vest the title of the land in
controversy, and (4) the defendant's adverse possession of the
property.
In support of the assignments of error covered by the first
proposition, it is urged on behalf of appellant that the suit
should be treated and regarded as an ejectment bill to recover the
possession of real estate, such as a court of equity cannot
entertain in favor of a party holding a legal title like that which
the complainant asserts. It is undoubtedly true that a court of
equity will not ordinarily entertain a bill solely for the purpose
of establishing the title of a party to real estate, or for the
recovery of possession thereof, as these objects can generally be
accomplished by an action of ejectment at law.
Hipp v.
Babin, 19 How. 271;
Lewis v.
Cocks, 23 Wall. 466;
Ellis v. Davis,
109 U. S. 485;
Killian v. Ebbinghaus, 110 U. S. 568;
Fussell v. Gregg, 113 U. S. 550,
113 U. S.
554.
If the bill in the present case could be properly considered as
an ejectment bill, the objection taken thereto by the defendant
would be fatal to the proceeding; but instead of being a bill of
this character, it is clearly a supplemental and ancillary bill
such as the court had jurisdiction to entertain.
Shields v.
Thomas, 18 How. 253,
59 U. S. 262;
Thompson v. Maxwell, 95 U. S. 391,
95 U. S. 399;
Story's Eq. Pl. §§ 335, 338, 339, 429.
It is well settled that a court of equity has jurisdiction to
carry into effect it own orders, decrees, and judgments, which
remain unreversed, when the subject matter and the parties
Page 150 U. S. 411
are the same in both proceedings. The general rule upon the
subject is thus stated in Story's Equity Pleading (9th ed.) §
338:
"A supplemental bill may also be filed, as well after as before
a decree, and the bill, if after a decree, may be either in aid of
the decree, that it may be carried fully into execution, or that
proper directions may be given upon some matter omitted in the
original bill, or not put in issue by it, or by the defense made to
it, or to bring forward parties before the court, or it may be used
to impeach the decree, which is the peculiar case of a supplemental
bill, in the nature of a bill of review, of which we shall treat
hereafter. But where a supplemental bill is brought in aid of a
decree, it is merely to carry out and to give fuller effect to that
decree, and not to obtain relief of a different kind on a different
principle; the latter being the province of a supplementary bill in
the nature of a bill of review, which cannot be filed without the
leave of the court."
Under this principle, Morton could undoubtedly have brought the
bill to carry into effect the decree rendered in his favor against
Root, and it is equally clear that his assignee or privy in estate
has a right to the same relief that Morton could have asserted. On
this subject, it is stated in Story's Equity Pleading § 429:
"Sometimes such a bill is exhibited by a person who was not a
party, or who does not claim under any party to the original
decree, but who claims in a similar interest, or who is unable to
entertain the determination of his own rights till the decree is
carried into execution.
Or it may be brought by or against any
person claiming as assignee of a party to the decree."
The appellee in the present case occupies that position, and he
should not, any more than Morton, to whose rights he had succeeded,
be put to the necessity of instituting an original or independent
suit against Root and relitigate the same questions which were
involved in the former proceeding.
The jurisdiction of courts of equity to interfere and effectuate
their own decrees by injunctions or writs of assistance, in order
to avoid the relitigation of questions once settled between
Page 150 U. S. 412
the same parties, is well settled. Story's Eq.Jur. § 959;
Kershaw v. Thompson, 4 Johns.Ch. 609, 612;
Schenck v.
Conover, 13 N.J.Eq. 220;
Buffum's Case, 13 N.H. 14;
Shepherd v. Towgood, Tur. & Rus. 379;
Davis v.
Bluck, 6 Beav. 393. In
Kershaw v. Thompson, the
authorities are fully reviewed by Chancellor Kent, and need not be
reexamined here.
It is said, however, on behalf of the appellant that the
original decree only undertook to remove the cloud upon the title,
and did not deal with the subject of possession of the premises,
and that the present bill, in seeking to have possession delivered
up, proposes to deal with what was not concluded by the former
decree. This is manifestly a misconception of the force of the
original decree, which established and concluded Morton's title as
against any claim of the appellant, and thereby necessarily
included and carried with it the right of possession to the
premises as effectually as if the defendant had himself conveyed
the same. The decree, in its legal effect and operation, entitled
Morton to the possession of the property, and that right passed to
the appellee as privy in estate.
In
Montgomery v. Tutt, 11 Cal. 190, there was a decree
of sale, which did not require or provide for the delivery of
possession of the premises to the purchaser. Subsequently the
defendant refused to surrender possession, and a writ of assistance
was sought by the purchaser to place him in possession of the
premises under the master's deed. Field, J., delivering the opinion
of the court, said:
"The power of the court to issue the judicial writ or to make
the order and enforce the same by a writ of assistance rests upon
the obvious principle that the power of the court to afford a
remedy must be coextensive with its jurisdiction over the subject
matter. Where the court possesses jurisdiction to make a decree, it
possesses the power to enforce its execution. It is true that in
the present case, the decree does not contain a direction that the
possession of the premises be delivered to the purchaser. It is
usual to insert a clause to that effect, but it is not essential.
It is necessarily implied in the direction
Page 150 U. S. 413
for the sale and execution of a deed. The title held by the
mortgagor passes under the decree to the purchaser upon the
consummation of the sale by the master's or sheriff's deed. As
against all the parties to the suit, the title is gone, and as the
right to the possession, as against them, follows the title, it
would be a useless and vexatious course to require the purchaser to
obtain such possession by another suit. Such is not the course of
procedure adopted by a court of equity. When that court adjudges a
title to either real or personal property to be in one as against
another, it enforces its judgment by giving the enjoyment of the
right to the party in whose favor it has been decided."
The principle thus laid down is directly applicable to the
present case.
The bill, being ancillary to the original proceeding of Morton
against Root and supplementary to the decree rendered therein, can
be maintained without reference to the citizenship or residence of
the parties. There is consequently no force in the objection that
the court below had no jurisdiction in this case because the
appellee and the appellant were both citizens of Nebraska.
Krippendorf v. Hyde, 110 U. S. 276;
Pacific Railroad v. Missouri Pacific Railway,111 U.S.
505.
It is next contended on the part of the appellant that the
decree sought to be carried into execution is void because there
was fraud on the part of Morton in concealing from the court the
fact that he had transferred the premises in August, 1869, to his
brother, William S. T. Morton. That conveyance, as set up in the
answer, was duly recorded in the register's office of Douglas
County prior to the filing of Morton's bill against the appellant.
It is not shown in the answer why the appellant did not avail
himself in the former trial of this transfer, of which he had
constructive notice. Nor does it appear from any averments in the
answer, or from the proofs, that his rights were in any way
prejudiced or affected thereby. He was not prevented by that
transfer from exhibiting fully his own case or setting up his
superior title to the premises, which was the subject matter of the
contest between Morton and himself.
Page 150 U. S. 414
The appellant could not, by a direct proceeding, have impeached
the former decree for this alleged fraud, because even if it were
sufficient to invalidate that decree, he shows no reason why it was
not interposed or set up in the former suit. The facts set up in
the answer relating to the conveyance of 1869 from Morton to his
brother do not, of themselves, constitute such a fraud as would be
sufficient to vacate the decree in a direct proceeding to impeach
it, and certainly it cannot be collaterally attacked in an answer,
as the appellant has sought to do, after such a lapse of time and
with no valid excuse given for the delay.
Hammond v.
Hopkins, 143 U. S. 224.
But aside from this objection to this defense, it is clearly
established by the proof in the cause that before Morton instituted
his suit against Root, a writing was executed between himself and
his brother, William S. T. Morton, which operated to vacate the
conveyance of August, 1869, and to revest the title to the property
in Oliver P. Morton, so that there was actually no lack of title to
the premises in Oliver P. Morton at the date of the institution of
his suit against Root. The objection interposed by the defendant
therefore is clearly wanting in any force or merit.
In respect to the next position assumed by the defendant, that
the description of the property was so defective as not to vest
Morton with any title to the premises in controversy, it is
sufficient to say that the same point was set up in the former suit
but was overruled, because the testimony given by surveyors clearly
established that the omission of the word "east" from the second
call of the description in no way affected the identification of
the property, and that by reversing the calls the word "east" would
be necessarily included in the description. The same testimony, in
substance, was introduced in this case, and established that the
description in the sheriff's deed to Morton fully identified the
land in question.
As to the remaining contention, that the appellant had been in
adverse possession of the premises since 1869, it appears from the
proof in the cause that he did not reenter or take
Page 150 U. S. 415
possession thereof until 1888. The statute of limitations
therefore does not constitute any bar to the complainant's right to
maintain the bill. But aside from this, the appellant stands in the
same position now that he did in the former suit, when it was
decreed that he had no right, title, or interest in the property.
If, since that decree, he has enclosed a part of the land, cut wood
from it, or cultivated it, he would be treated and considered as
holding it in subordination to the title of Morton and his privy in
estate until he gave notice that his holding was adverse and in the
assertion of actual ownership in himself. In his position, he could
not have asserted adverse possession, after the decree against him,
without bringing express notice to Morton or his vendees that he
was claiming adversely. Without such notice, the length of time
intervening between the decree and the institution of the present
suit would give him no better right than he previously possessed,
and his holding possession would, under the authorities, be treated
as in subordination to the title of the real owner. This is a well
established rule.
Jackson v. Bowen, 1 Wend. 341;
Burhans v. Van Zandt, 7 Barb. 91;
Ronan v. Meyer,
84 Ind. 390;
Jeffery v. Hursh, 45 Mich. 59;
Jackson v.
Sternbergh, 1 Johns.Cas. 153;
Doyle v. Mellen, 15
R.I. 523;
Zeller's Lessee v.
Eckert, 4 How. 289.
We are of opinion that the decree below was clearly correct, and
should be
Affirmed.
