1. A bill in equity is not the proper means to recover
possession of land, there being no fraud in the case nor other
matter specially the subject of equitable cognizance, and a party
cannot by any colorable suggestion of fraud, account &c., use
such a bill in place of the common law remedy of ejectment. The
court will look at the proofs, and if there be no proof at all of
the matters which would make a proper case for equity, it will
disregard them and look at the bill simply in its aspect of one to
recover land of which the complainant is out of possession.
2. If the bill be clearly one of the sort above spoken of it is
the duty of the court
sua sponte, and though there be no
demurrer, plea, or answer setting it up, to recognize the fact and
give to it effect.
In March, 1863, Anderson, alleging himself to be a creditor to
the extent of $8,840 of one Cocks, filed a petition in the
"Provisional Court of New Orleans" -- a court established by
proclamation of President Lincoln during the rebellion (while New
Orleans was occupied by the troops of the United States), and of
which a full account is given in preceding cases [
Footnote 1] -- that Cocks, then absent from
the state,
Page 90 U. S. 467
and a certain Hyllested, who the petition alleged was the proper
agent of Cocks in the matter of a proceeding like the one embraced
by the petition, might be cited to appear, and after proceedings
had, be condemned to pay the amount for which Anderson, as already
said, alleged himself to be a creditor.
The Provisional Court gave judgment by default for Anderson, and
execution having issued, two houses and lots, the property of
Cocks, were sold to a certain Izard, to whom possession, which he
still had, was delivered by the marshal of the court.
Hereupon -- Anderson having died and administration having been
granted on his estate -- the rebellion also being ended and the
regular courts of the United States reestablished -- Cocks filed,
A.D. 1866, a bill in equity in the court below against Izard,
praying that the defendant might be decreed to execute in favor of
the complainant a deed for the property on receiving the price paid
by the defendant for the same.
The relief was prayed for on the grounds:
1. That the Provisional Court was a nullity and its judgment
against Cocks void.
2. That no service of process had been made upon Cocks, that no
sufficient service had been made upon Hyllested, the agent of
Cocks, and that Hyllested was not such an agent as that valid
service could be made upon him.
3. That Izard was guilty of a gross fraud touching the sale of
the property by the marshal; that he professed to be the friend of
Cocks, and to intend to buy in the property for him; that he thus
deterred others from bidding and himself bought the property at a
sacrifice; that subsequently he acknowledged to Cocks his fiduciary
relation to the property, and expressed a willingness to surrender
it, but that finally his cupidity got the better of his integrity
and impelled him to deny that Cocks had any right whatever to the
property, and that he now claimed it as his own.
The bill tendered back the purchase money paid to Izard with
interest.
Page 90 U. S. 468
Izard answered and denied all the material allegations of the
bill. He also set up that he had mortgaged the property to Lewis;
that it had been seized and sold under that mortgage; that Lewis
became the purchaser, and that his, Izard's, entire title had thus
become divested out of him and vested in Lewis.
Lewis also answered, setting up the same facts as to his title
as had been stated by Cocks and making the same denials as to the
averments of the bill. He was accordingly substituted as
defendant.
On the hearing, the great weight of evidence appeared to show
that the fraud alleged against Izard had not been committed by
him.
The circuit court, however, decreed in favor of the complainant,
and Lewis took this appeal.
Page 90 U. S. 469
MR. JUSTICE SWAYNE delivered the opinion of the Court.
The question of the validity of the Provisional Court is not an
open one. We have held it valid upon more than one occasion when
the question has been before us. [
Footnote 2]
The fraud charged upon Izard is expressly denied by his answer
and is not sustained by the evidence. There is a decided
preponderance against it. We are unanimous upon the point. It could
serve no useful purpose to examine the proofs in detail in order to
vindicate our judgment. Nothing further need be said upon the
subject.
The remaining part of the case is that which relates to the
allegations of the non-service of process.
In considering the bill, we must regard it as being just as it
would be if it contained nothing but what relates to this subject.
Everything else must be laid out of view. It must be borne in mind
that the complainant is not in possession of the property.
If the bill alleged only the nullity of the judgment, under
which the premises were sold, by reason of the non-service of the
original process in the suit, wherefore the defendant had no day in
court, and judgment was rendered against him by default, and upon
those grounds had asked a court of equity to pronounce the sale
void, and to take the possession of the property from Izard and
give it to the complainant, could such a bill be sustained? Such is
the case in hand. There is nothing further left of it, and there is
nothing else before us. Viewed in this light, it seems to us to be
an action of ejectment in the form of a bill in chancery. According
to the bill, excluding what relates to the alleged fraud, there is
a plain and adequate remedy at law, and the case is one peculiarly
of the character where, for that reason, a court of equity will not
interpose. This principle in the English equity jurisprudence is as
old as the earliest period in its recorded history. [
Footnote 3]
Page 90 U. S. 470
The sixteenth section of the Judiciary Act of 1789, [
Footnote 4] enacting
"That suits in equity shall not be sustained in either of the
courts of the United States in any case where plain, adequate, and
complete remedy may be had at law"
is merely declaratory, and made no change in the preexisting
law.
To bar equitable relief, the legal remedy must be equally
effectual with the equitable remedy, as to all the rights of the
complainant. Where the remedy at law is not "as practical and
efficient to the ends of justice and its prompt administration,"
the aid of equity may be invoked, but if, on the other hand, "it is
plain, adequate, and complete," it must be pursued. [
Footnote 5]
In the present case, the objection was not made by demurrer,
plea, or answer, nor was it suggested by counsel; nevertheless, if
it clearly exists, it is the duty of the court
sua sponte
to recognize it and give it effect. [
Footnote 6]
It is the universal practice of courts of equity to dismiss the
bill if it be ground upon a merely legal title. In such case, the
adverse party has a constitutional right to a trial by jury.
[
Footnote 7]
Where the complainant had recovered a judgment at law and
execution had issued and been levied upon personal property, and
the claimant, under a deed of trust, had replevied the property
from the hands of the marshal, and the judgment creditor filed his
bill praying that the property might be sold for the satisfaction
of his judgment, this Court held that there was a plain remedy at
law, that the marshal might have sued in trespass, or have applied
to the circuit court for an attachment, and that the bill must
therefore be dismissed. [
Footnote
8]
In the present case, the bill seeks to enforce "a merely legal
title." An action of ejectment is an adequate remedy.
Page 90 U. S. 471
The questions touching the service of the process can be better
tried at law than in equity. If it be desired to have any rulings
of the court below brought to this Court for review, they can be
better presented by bills of exception and a writ of error than by
depositions and other testimony and an appeal in equity.
There is another important point which we have not overlooked.
It is whether the judgment of the Provisional Court can be
pronounced a nullity without the legal representative of Anderson,
the deceased plaintiff, being before the court as a party. As the
first objection is a fatal one, we have not considered that
question.
Decree reversed and the case remanded with directions to
dismiss the bill.
[
Footnote 1]
The Grapeshot,
9 Wall. 129;
Handlin v.
Wickliffe, 12 Wall. 173;
Pennewet
v. Eaton, 15 Wall. 382;
Mechanics' Bank v. Union
Bank, 21 Wall. 278.
[
Footnote 2]
The Grapeshot,
9 Wall. 129.
[
Footnote 3]
Spence's Jurisdiction of Courts of Chancery 408, note b;
id., 420, note a.
[
Footnote 4]
1 Stat. at Large 82.
[
Footnote 5]
Boyce v.
Grundy, 3 Pet. 215.
[
Footnote 6]
Hipp v.
Babin, 19 How. 278;
Baker v. Biddle,
Baldwin 416.
[
Footnote 7]
Hipp v.
Babin, 19 How. 278.
[
Footnote 8]
Knox v. Smith,
4 How. 298.
