The complainants filed a bill for a perpetual injunction, and to
oblige the appellees to deliver up a deed of conveyance of lands,
and which deed, in a suit between the parties, had been declared by
the court void on its face.
"The court is well satisfied that this would be a proper case
for a decree according to the prayer of the bill, if the
defectiveness of the conveyance was not apparent on its face, but
was to be proved by extrinsic testimony."
But where the defectiveness is so apparent, the court will not
order the deed to be delivered up.
The defendants in their answer insist on their title both at law
and in equity, and on being left free to assert that title, if they
shall choose so to do. A general dismission of the bill with costs,
the court assigning no reason for that dismission, may be
considered as a decree affirming the principles asserted in the
answer, as leaving the defendants at full liberty to assert their
title in another ejectment, and as giving some continuance to
that title. The decree of the circuit court dismissing the
complainants' bill ought to be so modified as to express the
principles on which the bill is dismissed, so as not to prejudice
the complainants.
In addition to the fact, shown by the bill and answer, that the
controversy between the parties as to the title to the lands was
not abandoned by the defendants, a fact which is entitled to same
influence in the question of costs, the bill prays that the
defendants might be enjoined from committing waste while they
retained possession of the premises that a receiver might be
appointed and that an account of rents be taken. These are proper
objects of equity jurisdiction. If they had been accomplished when
the decree was pronounced, the bill might have been dismissed, but
not so far as is disclosed by the record, with costs. The
defendants were not entitled to costs.
The facts and pleadings are fully stated in the opinion of the
court.
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.
This is an appeal from a decree of the court of the United
States for the Seventh Circuit and District of Kentucky dismissing
the plaintiffs bill filed in that court with costs.
The bill states that the plaintiffs are the heirs and
representatives of Sarah G. Elliott, deceased, who departed this
life
Page 31 U. S. 96
intestate, seized of a valuable estate in the County of
Woodford, which descended to them. That in her lifetime, in the
year 1813, James Elliott, her husband, caused a deed to be made and
recorded purporting to be executed by the said Sarah G. and himself
for the purpose of conveying the said land to Benjamin Elliott, who
immediately reconveyed the same to the said James Elliott. The
complainants allege that this deed was never properly executed by
their ancestor; that she was induced by the said James to believe
that it conveyed only an estate for her life; that she was
prevailed on under this belief to accompany him to the clerk's
office, where she acknowledged the said deed without any privy
examination, which is required by law. The deed was recorded on her
acknowledgement without any certificate of privy examination. The
said Sarah G. departed this life in the year 182, soon after which
her heirs brought an ejectment in the circuit court for the
recovery of the land. While it was depending, in November, 1823,
the said James Elliott, having failed in an attempt to induce the
clerk to alter the record, prevailed on the County Court of
Woodford, on the motion of Benjamin Elliott, to make the following
order.
"Woodford county, sct. November County Court, 1823."
"On motion of Benjamin Elliott by his attorney, and it appearing
to the satisfaction of the court by the endorsement on the deed
from James Elliott and wife to him under date of 12 June, 1813, and
by parol proof that the said deed was acknowledged in due form of
law by Sarah Elliott, before the clerk of this court, on 11
September, 1813, but that the certificate thereof was defectively
made out, it is ordered that the said certificate be amended to
conform to the provisions of the law in such cases, and that said
deed and certificate, as amended, be again recorded, whereupon the
said certificate was directed to be amended to read in the words
and figures following, to-wit: "
"Woodford County, sct. September 11, 1813"
"This day the within named James Elliott, and Sarah his wife,
appeared before me, the clerk of the court for the county
aforesaid, and acknowledged the within indenture to be their act
and deed, and the said Sarah being first examined privily and apart
from her said husband, did declare that she freely and
Page 31 U. S. 97
willingly sealed and delivered said writing, which was then
shown and explained to her by me, and wished not to retract it, but
consented that it should be recorded. The said deed, order of
court, and certificate, as directed to be amended, is all duly
recorded in my office."
"Teste JOHN McKINNEY, JR., C.W.C.C."
"Endorsements on the back of the foregoing deed, to-wit: James
Elliott et ux. to Benjamin Elliott -- Deed."
"Acknowledged by James Elliott and Sarah G. Elliott, September
11, 1813."
"Att. J. McKINNEY, JR., C.W.C."
"R.B.F. page 199. Recorded deed-book K, page 56-57."
"Att. C. H. Mc., D.Clk."
The said James Elliott departed this life during the pendency of
the ejectment; it was revived against James Elliott, his son, as
terre tenant, and determined in favor of the plaintiffs in
November, 1823. The bill, which was filed during the term at which
the judgment in ejectment was rendered, alleges that the defendants
retain possession of the premises by themselves and their tenants,
who are doing great waste by cutting and destroying the timber, and
who threaten to continue their possession by suing out a writ of
error to the judgment of the court. It charges that the defendants
are receiving the rents, which some of them will be unable to
repay; prays for an injunction to stay waste; that a receiver may
be appointed; that the rents, from the death of Sarah G. Elliott,
may be accounted for; that the deed may be surrendered up to be
cancelled; and for further relief.
The injunction was awarded.
The writ of error to the judgment of the circuit court came on
to be heard on this Court at January term, 1828,
26 U. S. 1 Pet.
328, when the judgment was affirmed, this Court being or opinion
that the deed from James Elliott and Sarah G. his wife, was totally
incompetent to convey the title of the said Sarah G. to the tract
of land therein mentioned.
In November, 1828, the defendants filed their answer, in which
they claim the land in controversy as heirs of James Elliott,
deceased. They insist that the deed from James Elliott and Sarah G.
his wife, recorded in the Court of Woodford County, was fairly and
legally executed, and conveyed the
Page 31 U. S. 98
land it purports to convey. That Sarah G. Elliott was privily
examined according to law, and that the omission to record her
privy examination was the error of the clerk, which was afterwards
corrected by order of the court, so as to conform to the truth of
the case. They deny that the deed from Sarah G. Elliott was
obtained by any misrepresentation, and say they have heard that the
judgment of the circuit court has been affirmed in the Supreme
Court, and that they have not determined to prosecute any other
suit, but hope they will be left free on that subject.
In May term, 1829, the cause came on to be heard, when the bill
of the plaintiffs was dismissed with costs. They appeal from the
decree to this Court.
The principal object of the bill was to quiet the title by
removing the cloud hanging over it, in consequence of the
outstanding deed executed by James Elliott and Sarah G. his wife.
This application is resisted in the argument, upon the principle,
that the deed, having been declared by this Court to be void on its
face, can do no injury to the plaintiffs, who ought not therefore
to be countenanced by a court of equity in an application to obtain
the surrender of a paper from which they can have nothing to
apprehend, by which application the defendants are exposed without
reasonable cause to unnecessary expense. That under such
circumstances a court of equity can have no jurisdiction over the
cause.
The court is well satisfied that this would be a proper case for
a decree according to the prayer of the bill, if the defectiveness
of the conveyance was not apparent on its face, but was to be
proved by extrinsic testimony. The doubt respecting the propriety
of the interference of a court of equity, is produced by the facts
that the deed is void upon its face, and has been declared to be
void by this Court. It is therefore an unimportant paper, which
cannot avail its possessor. The question whether a court of equity
ought in any case to decree the possessor of such a paper to
surrender it, is involved in considerable doubt, and is one on
which the chancellors of England seem to have entertained different
opinions. Lord Thurlow was rather opposed to the exercise of this
jurisdiction, 3 Bro.Ch. 15, 18; and Lord Loughborough appears to
have concurred with him, 3 Ves. 368, and in
Gray v.
Matthias, 5 Ves. 286, the
Page 31 U. S. 99
Court of Exchequer refused to decree that a bond which was void
upon its face should be delivered up; principally on account of the
expense of such a remedy in equity, when the defense at law was
unquestionable. In this case, Chief Baron McDonald said that the
defendant should have demurred to the action upon that bond.
Instead of that, he comes here professing that it is a piece of
waste paper. He goes through a whole course of equitable litigation
at the expense of two or three hundred pounds. In such a case,
though equity may have concurrent jurisdiction, it is not fit in
the particular case that equity should entertain the bill.
Lord Eldon inclined to favor the jurisdiction, 7 Ves. 3; 13 Ves.
581. He thought the power to make vexatious demands upon an
instrument as often as the purpose of vexation may urge the party
to make them furnished a reason for decreeing its surrender.
In 1 Johnson's Ch. 517, Chancellor Kent concludes a very able
review of the cases on this subject with observing
"I am inclined to think that the weight of authority and the
reason of the thing are equally in favor of the jurisdiction of the
court, whether the instrument is or is not void at law and whether
it be void from matter appearing on its face or from proof taken in
the cause, and that these assumed distinctions are not well
founded."
The opinion of this learned chancellor is greatly respected by
this Court. He modifies it in some degree by afterwards saying
"But while I assert the authority of the court to sustain such
bills, I am not to be understood as encouraging applications where
the fitness of the exercise of the power of the court is not pretty
strongly displayed. Perhaps the cases may all be reconciled on the
general principle that the exercise of this power is to be
regulated by sound discretion as the circumstances of the
individual case may dictate, and that the resort to equity, to be
sustained, must be expedient either because the instrument is
liable to abuse from its negotiable nature or because the defense
not arising on its face, may be difficult or uncertain at law, or
from some other special circumstance peculiar to the case and
rendering a resort here highly proper and clear of all suspicion of
any design to promote expense or litigation. If, however, the
defect appears
Page 31 U. S. 100
on the bond itself, the interference of this Court will still
depend on a question of expediency, and not on a question of
jurisdiction."
The Court forbears to analyze and compare the various decisions
which have been made on this subject in England because, after
considering them, much contrariety of opinion still prevails both
on the general question of jurisdiction, where the instrument is
void at law on its face, and on the expediency in this particular
case of granting a perpetual injunction or decreeing the deed to be
delivered up and cancelled, and because we think that although the
prayer of the bill be rejected, the decree of dismission ought to
be modified.
The defendants, in their answer, insist upon their title both at
law and in equity, and on being left free to assert that title if
they shall choose so to do; a general dismission of the bill with
costs, the court assigning no reason for that dismission, may be
considered as a decree affirming the principles asserted in the
answer, as leaving the defendants at full liberty to assert their
title in another ejectment, and as giving some countenance to that
title.
We also think that the bill ought not to have been dismissed
with costs. In addition to the fact that the controversy respecting
the title was not abandoned by the defendants -- a fact while is
entitled to some influence on the question of costs -- other
considerations bear on this point. The bill prays that the
defendants might be enjoined from committing waste whilst they
retained possession of the premises, that a receiver might be
appointed, and that an account of rents might be taken. These are
proper objects of equity jurisdiction. If they had been
accomplished when the decree was pronounced, the bill might have
been dismissed, but not, so far as is disclosed by the record, with
costs. The defendants were not, we think, entitled to costs. We are
therefore of opinion that the decree of the circuit court ought to
be so modified as to express the principles on which the bill of
the plaintiffs is to be dismissed, and ought to be reversed as
respects costs.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District
Page 31 U. S. 101
of Kentucky and was argued by counsel, on consideration whereof
this Court is of opinion that the decree of the circuit court ought
to have shown that the bill was dismissed because, the deed therein
mentioned being void at law for matter apparent on its face, the
plaintiff had not shown any circumstances which disclosed a case
proper for the interference of a court of equity to relieve against
such void deed. And this Court is further of opinion that so much
of the said decree as dismisses the bill with costs is erroneous
and ought to be reversed. This Court doth therefore reverse and
annul the said decree and direct that the case be remanded to the
said circuit court with directions to modify the same according to
the principles of this decree; and the parties are to bear their
own costs in this Court.