Jones v. DeGraffenreid

STONE, J. We agree with the chancellor, that there is nothing in this record which authorizes the reformation of the allotment of homestead, made by the commissioners. They selected and allotted the west half of the south-west quarter of section seventeen, and the west half of the northwest quarter of section twenty, township twenty-three, range one, west; and appellee’s claim must be limited to those particular numbers of land. According to the testimony, they embrace the residence of DeGraffenreid, and most of the out-buildings. We think the allotment was sufficiently certain and definite, under sections 2880-81 of the Eevised Code; the law which governed the claim at the time the homestead was set off. We also agree with the chancellor that, this allotment having been made by commissioners duly appointed, when executions were in the hands of sheriff Cole, it was not necessary for DeGraffenreid again to assert his claim, or have a new allotment, when alias executions went into the hands of Cole’s successor in office. The right to occupy, and to remain in undisturbed possession, was secured to DeGraffenreid by the allotment. No objection or exception [151] to that allotment had been filed by any one, so far as we are informed; and it must be regarded as acquiesced in by De-Graffenreid, and by the execution creditors, in part derogation of whose claims the assignment was made. White, the successor in office of sheriff Cole, levied upon and sold seven hundred and twenty acres of land as the property of DeGraffenreid, including the lands which had been set off as homestead ; Jones, the appellant, became the purchaser, and received the deed of the sheriff, conveying the lands to him. Jones brought his statutory action of ejectment against DeGraffenreid for the recovery of the lands, recovered in his suit, and, under a writ of possession, was put in possession of all the lands, except the homestead. This DeGraffenreid continued to occupy, by permission of Jones. The present bill was then filed, the chief object of which was to secure his homestead, and to be quieted in his possession. The bill avers most of the facts above stated, and the others are shown in the pleadings and proofs. No excuse is offered, or attempted to be given, why the action of ejectment was not defended at law. 2. One ground on which the equity of this bill is sought to be maintained is, to remove a cloud from the plaintiff’s title; and the following authorities are relied on in support of this view : Irwin v. Lewis, 50 Miss. 363; Vogler v. Montgomery, 54 Mo. 577; Harrington v. Utterback, 57 Mo. 519; Tucker v. Kenniston, 47 N. H. 267. We do not gainsay the authority of these cases. But the principle, on which equity intervenes to remove a cloud, or impending cloud, from the title, is, that the party, being in possession, can not bring an action at law to establish his title, or to test its strength; and it is unreasonable that he shall be required to stand in suspense, until it suits the interest or caprice of his adversary to bring suit; his title, in the mean time, resting under distrust, while he is at all times liable to lose the benefit of important evidence, by the death of witnessess. — See Rea v. Longstreet, 54 Ala. 291. These reasons do not apply to the present suit, which was begun, not only after his adversary had commenced suit for the recovery of possession, but after that suit had been determined by a recovery of the premises. This bill can not be maintained on this ground. 3. Homestead, when legally and successfully claimed, is a legal seizin, and will maintain or defeat an action of ejectment, as the case may be. The owner of such homestead has a complete and adequate remedy at law; and this, itself, is a full answer to a bill filed for its assertion, unless there be some special, equitable reason shown, why the powers of the Chancery Court should be invoked. None is shown in [152] this case. Neither is any reason averred or shown, why the Chancery Court should grant relief, in the nature of a new trial at law. — See 1 Brick. Dig. 666, § 376. 4. The action of ejectment stands on rather peculiar grounds, as to the conclusiveness of judgments rendered therein. As a general rule, many suits may be maintained for the same property, on the same title, and between the same parties; and a recovery in one or more suits will be no bar to a further suit. But this is mainly owing to the fictitious proceedings in which such suits are usually clothed. How far such suits and recoveries are evidence of the facts adjudged, binding on the parties in other litigation, we need not now determine. — See 2 Phil. Ev., Cow. & Hill’s and Edw. Notes, 11; 2 Whar. Ev. § 765; Stark. Ev. by Sharswood, 111; Doe v. Harlow, 12 Ad. & El. 40; Doe v. Thomas, 1 Tyrwh. 410; Bailey v. Fairplay, 6 Bin. 450; Rogers v. Haines, 3 Greenl. 362; Richardson v. Stewart, 2 Serg. & R. 84; White v. Kyle, 1 Serg. & R. 515. And in some extreme cases, chancery will interpose by injunction, to put a stop to litigation; but the present case presents none of the features which justify such interposition. — High on Inj. §§ 53, 62, 63; Adams on Ejectment, by Til. 352, and notes; Calhoun v. Druming, 4 Dall. 120; Cherry v. Robinson, 1 Yeates, 525; Eldridge v. Hill, 2 Johns. Ch. 281; Leighton v. Leighton, 1 Pr. Wms. 671; Earl of Bath v. Sherwin, 1 Bro. P. C. 266; Dearden v. Lord Byron, 8 Price, 417; Doe v. Huddart, 2 C. M. & R. 316. See, also, Pollard v. Baylor, 6 Munf. 433. Our statute (Code of 1876, § 2959] has rendered it unnecessary to employ the fictitious proceedings in actions of ejectment, and the suit between these parties was brought under that statute. To what extent, if any, that statute will affect the judgment as an instrument of evidence, the wants of this case do not require us to decide. Section 2969 does limit the number of suits in ejectment that may be brought “ between the same parties, in which the saíne title is put in issue,” when the judgments are in favor of the defendant. This, at least, shows that the right to bring the action of ejectment between the same parties, on the same title, is not limited to one trial. The decree of the chancellor is reversed, and the bill here dismissed, at the cost of appellee, in this court and in the court below.