Gamage v. Harris

Haskell, J. Bill to remove a cloud from the title of the orator to two several parcels of land. The orator claims to have acquired the right to redeem both parcels from a mortgage by virtue of a sale of the equity to him on execution. Three of the respondents, sisters, claim title to one parcel by virtue of a levy upon it on execution in their favor, and to the other parcel by virtue of a sale to them, on execution, of the right to redeem the same from mortgage; both the levy and the sale were made to perfect a lien upon the land, created by an attachment made earlier than the attachment in the orator’s favor under which he claims title. The orator, not being in possession of the land, seeks to avoid the respondents’ levy for irregularity, and to avoid their purchase of the equity, because there was none, and because the sale was irregular and invalid. Failing in these particulars, the orator seeks to have both the sale and the levy annulled, because the judgment, whereon the execution issued upon which the sale and levy were made, was fraudulent, collusive and void. The bill invokes two specific grounds for relief: one the invalidity of certain judicial conveyances, the validity of which can as well be determined in an action at law, as in equity; the other a fraudulent and collusive proceeding at law, under which the three respondent sisters claim title. The second cause for relief is properly within the jurisdiction of a court of equity. The orator charges that three of the respondents, daughters of the other respondent, fraudulently and collusively procured a judgment and execution against their [535] father, the other respondent, upon a fictitious and groundless claim, and that the title which they claim under the levy and sale on the execution, is colorable only and invalid. The orator called for an answer to his bill upon oath, to search the conscience of each daughter, and of their father as well. They all answer fully, and no doubt satisfactorily to the orator, as he has no exception to any suggested insufficiency or evasiveness in the answers. The answers, so far as responsive, are evidence on the part of the defence, and must be taken to be true, unless overcome by evidence that outweighs them. They deny all fraud and collusion between the three respondents claiming title and their father, touching the judgment in question. A careful consideration of the evidence fails to prove that the judgment in controversy is fraudulent, or collusive. The orator and the three female respondents had suits pending at the same time, in the same court against the same defendant, wherein the same land was attached, the attachment of the respondents having been first made, and it is improbable that the orator did not then know of the respondents’ suit and attachment. If he then believed that the respondents’ suit was upon a fictitious claim, or for a sum too large, he might have defended the same as a subsequent attaching creditor. R. S., 1871, c. 82, § 39; 1883, c. 82, § 46. But this he omitted to do. He might then have compelled the respondents to prove their damages and have prevented expensive litigation in a court of equity. He who asks equity must not only do equity, but come into court free from laches himself. The three female respondents, scarcely beyond their majority, believed that they had a claim against their father for wood cut by him upon land that they had inherited from their mother, and fearing lest their father might become unable to pay them, consulted a counsellor, whom the court has no reason to distrust, and by his direction prosecuted their claim by suit and recovered judgment and execution. The testimony of their counsellor clearly proves good faith in the proceeding, and the orator has no reason to complain of the result. Had he been more diligent in collecting overdue notes, running at eight per cent interest, Ms attachment might have been the earlier one. [536] The orator, failing to prove the fraud charged iu his bill, cannot farther maintain the same for a cause giving a plain and adequate remedy at law. "The rule is, that when a cause of action cognizable at law is entertained in equity on the ground of some equitable relief sought by the bill, which it turns out cannot, for defect of proof or other reason, be granted the court is without jurisdiction to proceed further, and should dismiss the bill without prejudice. Russell v. Clark, 7 Crunch, 69. Price's Patent Candle Co. v. Bauwens Patent Candle Co. 4 Kay & J. 727; Baily v. Taylor, 1 Russ & M. 73; French v. Howard, 3 Bibb. (Ky.) 301; Robinson v. Gilbreth, 4 id. 153; Nourse v. Gregory, 3 Litt. (Ky.) 378;” Dowell v. Mitchell, 105, U. S. 430. The orator, not being in possession of the land, cannot in equity test the validity of the levy and sale set up against him. A writ of entry will afford him a plain and adequate remedy. Spofford v. B. & B. R. R. Co. 66 Maine, 51; Briggs v. Johnson, 71 Maine, 237; Robinson v. Verrill, 73 Maine, 176; Russell v. Barstow, 144 Mass. 130. Bill dismissed, but without prejudice as to matters not decided in this opinion. Respondents to recover one bill of costs. Peters, C. J., Walton, Virgin and Emery, JJ., concurred.