Brown v. Haff & Lyon

The Chancellor. The charge in the complainant’s bill is positive, that the $550 was advanced to Lyon under an agreement that it should be applied on the contract of Half with the complainant; Lyon allowing Half for the interest of the money, until the payment upon the contract became due. And the answer of the defendant is as positive that no such agreement was ever made. The affidavits annexed [239] to the bill go strongly to corroborate the complainant’s statement, although none of the deponents were present when the alleged agreement, on this subject, was made with the complainant, or when the money was received by Lyon. And if the question as to the dissolution of the injunction depended upon the charge in the bill, and this denial of the defendant alone, I should, upon the strength of those affidavits, retain the injunction till the hearing. But it has already been decided that a defendant may, upon a motion to dissolve the injunction, introduce other evidence in support of his answer, to rebut the affidavits annexed to the bill under 3 . ¡ the 37th rule. In this case, the defendant Haff produces the certificate of the clerk of the circuit, showing that all these 'deponents were examined as witnesses on the trial at law, and that the jury, notwithstanding their testimony, found a verdict for the plaintiff Haff, There is no suggestion here, that there was any collusion between Haff and Lyon as to the defence of that suit. On the contrary, it is stated in the answer that the defence of the suit was conducted by the complainant’s counsel in the name of Lyon. Besides; the complainant was not present when Lyon received the money, and therefore he could not know positively what agreement was made between Haff and Lyon at that time, in relation thereto. I have some doubts as to the propriety of granting this injunction originally. If Lyon teceived the money for the complainant, as an advance by Haff on his contract of purchase, the suit to recover back the money was one in which the defence of Lyon was complete at law, and the complainant has his remedy against Lyon for the money received for his use. Under the circumstances of this case, as they now appear, I think the injunction should not be any longer retained. The question as to the discharge of ne exeat depends upon different principles. The act to abolish imprisonment for debt does not affect the power of this court to issue a ne exeat in any case of equitable cognizance in which it was proper to grant the writ previous to the passage of that act. The writ was never granted, except upon proof, or at least a probable presumption, that the defendant was about to leave the state. [240] The legislature, therefore, have not thought it expedient to ^ePrh'e this court of the power of requiring this kind of bail, in cases which are-clearly of equitable cognizance, where the defendant is about to elude the justice of the court, by removing beyond its jurisdiction. And the first section of the statute was so framed as to protect parties in this court from arrest or imprisonment upon executions merely ; while in courts of law they are exempted from arrest on any civil process, except in (he cases provided for in the second section of the act. (Laws of 1831,p. 396.) In cases of mere legal cognizance, In which the court would not have granted a ne exeat previous to the act of April, 1831, this court will not now extend its jurisdiction for the purpose of giving to a complainant the benefit of equitable bail, although the defendant is about to remove from the state. In such cases the creditor must be left to the remedy provided for him by the legislature, by a proceeding under the third section of the act; however imperfect that remedy may be. A suit in this court, against the vendee, to compel a specific performance of a contract to purchase land, has always been sustained as a part of the appropriate and acknowledged jurisdiction of a court of equity; although the vendor has, in most cases, another remedy, by an action at law upon the agreement to purchase. Where it is evident, therefore, that the complainant is in a situation to give a clear and perfect title to the premises, and that the defendant is wholly without excuse in refusing to complete the purchase, so that a specific performance must finally be decreed, the complainant is entitled to a ne exeat, upon furnishing the- usual evidence that the defendant intends to remove beyond the jurisdiction of the state. (Goodwin v. Clark, 2 Dick. Rep. 497. Boehm v. Wood, Turn. & Russ. Rep. 332.) Even in cases of this kind, however, if the specific performance, on the part of the defendant, consists in a payment of the purchase money merely, he cannot be taken in execution on the decree. The only effect of the ne exeat, therefore, will be to prevent the defendant from removing with his property beyond the jurisdiction of the court; and thus to render him amenable to such process as [241] may be necessary to reach his property, or to compel him to apply it in payment of the decree. This court will not decree a specific performance where the vendor cannot make a clear and undoubted title to the premises, unless the purchase has been made at the risk of the vendee as to the title, or the latter has agreed to accept such title as the vendor was able to give. In general, however, it is not necessary for the complainant to show that he was able to give a good title at the time of making the agreement to sell, or even at the commencement of the suit. It will be sufficient if he can give a perfect title at the time of the decree, or at the time when the master makes his report. (Langford v. Pitt, 1 P. Wins. 630. Clute v. Robinson, 2 John. Rep. 595. Coffin v. Cooper, 14 Ves. 205.) But to entitle the complainant to a writ of ne exeat, he must show a demand actually due at the time the writ is issued. He must therefore show affirmatively, at that time, that he is able to make a clear and unencumbered title to the premises agreed to be sold. In an anonymous case referred to by Mr. Dickens in a note t.o the case of Goodwin v, Clarke, Lord Thurlow inquired how it appeared that the complainant could make a good title 1 And that question not being satisfactorily answered, the ne exeat was refused. And in Morris v. M’Neil, (2 Russ. Rep. 604,) Lord Eldon discharged the writ, although the defendant had entered into possession of the property and had received the rents and profits for some time, because it did not sufficiently appear that the complainant could give a good title. He there says: “ Unless the court can make it out to be quite clear that there must be a specific performance, it cannot grant the writ of ne exeat regno.” In the present case it is neither alleged in the bill, nor sworn to in any of the affidavits thereto annexed, that the complainant had a clear and unencumbered title to the premises at the time of the commencement of this suit, or such a title as the defendant was in equity bound to receive. The complainant should at least have stated that he believed he was able to give to the defendant a good title. But if the answer is true, the complainant did not obtain a perfect title by the conveyance from Lyon and his [242] wife, as it was subject to heavy encumbrances. If the de» fendant proves the fraudulent misrepresentation stated in his answer, that alone will be sufficient to prevent a decree for a specific performance, although the complainant may hereafter be able to give him a perfect and unencumbered title. The complainant in the end may be entitled to a decree ; but. he certainly has not shown sufficient at this time, to entitle him to retain this ne exeat. It must therefore be discharged.