Byerly v. . Humphrey

MebeimoN, J. (after stating the facts). The defendant having conceded that the plaintiff had not executed the mortgage deed under which he proposed and claimed the right to sell her land, obviously the Court properly granted the relief sought by her. She was in possession of the iand, and could not bring an action at law, by which she could test the validity of the deed as to herself. It had such color and legal sanction, by reason of its apparent genuineness, the spurious probate of it, apparently regular and fair, and the registration thereof, as rendered it a standing menace and cloud upon her title. If the defendant had sold the land, as he claimed the right to do, and the purchaser had brought his action to recover the possession of it, the present plaintiff would" in that case, have been obliged to produce evidence to defeat a recovery. The deed was clearly a cloud upon her title, against which she was entitled to relief. There was no legal remedy^ — certainly no adequate one — of which she might have availed herself and obtained prompt relief. It. would be unjust, and expose her to hazard, expense, and great annoyance, to delay her remedy until the defendant should sell the land under the pretended power to sell, and test the validity of the deed by an action the purchaser might bring to recover the pos *155 session of the land. The defendant might not sell for a long while; the purchaser might postpone his action for an indefinite period of time, and in the meantime the plaintiff might suffer great detriment, arising from the cloud upon her title. The jurisdiction of a Court of Equity to prevent and remove a cloud upon the title to realty, is founded in sound principles of right and justice. It arises out of the inadequacy of the remedy at law, and is well settled, although it is sometimes difficult to determine what constitutes such cloud as warrants the interference of such Court. Pettit v. Shepherd, 5 Paige, 493; Oakley v. Trustees, 6 Paige, 262; Rixby v. Higgins, 15 Cal., 127; Key v. Mensil, 19 Iowa, 105; High on Injunctions,‘§269 et seq. This case differs from the cases of Busbee v. Macy, 85 N. C., 329; Busbee v. Lewis, Ibid., 332, and Pearson v. Boyden, 86 N. C., 585. In these cases the party seeking equitable relief had a legal remedy, as the Court held; but the Court recognized the jurisdiction to grant such relief in a proper case. We think, however, that the Court erred in considering and passing upon the merits of the matter set forth in the answer as a second defence, thus perhaps concluding the defendant in respect thereto. This was not matter of defence at all in this action : it was impertinent matter, that the Court might, ex mero motu, have directed tobe stricken from the answer. It constituted no defence, as a counter-claim, or otherwise. If the defendant was entitled to be subrogated to the rights of the mortgagee of the first mortgage mentioned in the answer, then in that respect he had a distinct cause of action, that he could not set up in this action, but must enforce by a separate and distinct action, if he shall see fit to do so. The defendant could not set up in this action any and every cause of action he might have against the plaintiff, without regard to its nature. He could only plead such a cause of action as constituted a valid counter-claim, or defence, and as is allowed by the Statute (The Code, §244). The matter set forth as a second defence is very imperfectly and informally alleged, but it seems that it was intended to be a *156 counter-claim. But clearly, in no aspect of it, can it be so treated. The alleged cause of action — treating it as such — did not arise “out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim,” nor was it “connected with the subject of the action.” Nor does the plaintiff’s cause of action arise ex contractu, nor does the defendant’s alleged cause of action; but if the latter did, it would not be good as a counter-claim in this action, because it is not such a cause of action as the statute cited, allows to be pleaded as a counter-claim. It may be, that the defendant has such a cause of action as he suggests in his answer, against the plaintiff. If he has, he ought to have just opportunity to ■seek an appropriate remedy, and, therefore, the Court ought to have stricken the supposed defence from the answer, or to have, dismissed it without passing upon its merits, and without prejudice to any action he might bring on that account. The judgment must be so modified as to conform to this opinion, and as thus modified, affirmed. Modified. Affirmed.