Langdon v. Templeton

The opinion of the court was delivered by Tart, J. This case was heard upon demurrer to the bill. It is alleged in the bill that, under the orator, Clogston went into, possession of the lot in controversy, in the latter part of the year 1885, and has since remained in possession. Whatever the title of the defendant may be to the land, upon the facts alleged, Clogston has a full defense to the suits at law, brought by tire defendant against him, at least as to the action of trespass. The-gist of the action is the injury to the possession, and the generab rule is, that unless at the time the injury was committed the plain [123] tiff-was in actual possession, trespass cannot be supported, and, although the title may come in question, it is not essential to the action that it should. Chit. Pl. 175. It was held in this State that a title to lands, without entry, does not warrant an action of trespass qua. clan, against a party in actual adverse possession, for the cutting of trees upon the land; nor (semble) trespass de bonis for the wood severed-from the land. Pratt v. Battels, 28 Vt. 685; Bowne v. Graham, 2 Tyler 411. But the orator insists that though he can successfully defend the suits at law, he is entitled to protection against the vexatious-suits instituted by the defendant against his, the plaintiffs, tenant, Clogston, citing Morse v. Morse, 44 Vt. 84. The doctrine-here invoked is that, of the second class of bills of peace, where, the orator seeks to restrain the defendant from reiterating an unsuccessful claim or litigation. The object of such a bill is to secure an established legal title against the vexatious recurrence of litigation. This jurisdiction of a court of equity is now firmly established and is unquestionable. Adams’ Eq. 199; Bispham’s Pr. of Eq., secs. 413, 417, 418; Willard’s Eq. 323 et seq. Bispham, supra, sec. 417, says: “ In general, in order that a bill of peace may be maintained, the complainant must first have established his right at law.” Mitford, in his Chancery Pleading (4th Am. Ed.) 146, states the rule, viz.: “Indeed, in most cases it is held that the plaintiff ought to establish his right by a determination of a court of law in his favor, before he files his bill in equity ; and if he has not so done, and the right he claims has not the sanction of a long possession, and he has any means of trying the matter at law, a demurrer will hold;” the same learned author adds : “ If he has not been actually interrupted or dispossessed, so that he has no opportunity of trying his right, he may bring a bill to establish it, though he has not previously recovered in affirmance of it at law. In York v. Pilkington, 1 Atk. 282, a bill of peace of the first class waa brought to quiet the title of the plaintiffs in a right of fishery, to which a demurrer was interposed. The court say : “ Another cause of demurrer is that the plaintiffs have not established their [124] title at law, and have therefore brought their bill improperly to be quieted in possession. Now it is a general rule that a man shall not come into a court of equity to establish a legal right unless he has tried his title at law, if he can, but .this, is not so geueral an objection as always to prevail, for there has been a variety of cases both ways.” Sm. Manual of Eq. 406; Bush v. Western, Prec. in Ch. (2d Ed.) 530; Duke of Dorset v. Girdler, ibid. 531, In the latter case, a case was cited between Wynn and Hatley, before Lord Keeper Wright, at the Inner Temple Hall, where a bill was brought of the same nature, touching a common, and the demurrer allowed, because there it appeared of his own showing that he was interrupted and dispossessed, and therefore had his remedy at law. The orator in this case is in possession by his tenant, Clogston, and the result of the actions brought against the latter, trespass qua. clau. and trover, will not be conclusive; fresh actions may be repeatedly brought, and the orator harrassed by numberless suits and indefinite litigation, with no means of trying the matter at law, so that the rights of the parties, in respect to the title to the land could be finally determined. The orator, being in possession, can bring no action at law against the defendant, and the latter brings no action .that necessarily settles his title. The. remarks of Robinson, Ch. J., in Bowne v. Graham, supra, are quite apropos to the case atbau. Hesaid: “ It is much to be desired that the gentlemen of the bar would advise their clients, who claim title to land, to institute an action of ejectment against all in possession. A resort to other actions by which the title may be collaterally tried, is certainly not beneficial, as the verdicts are not conclusive as to the title, even against the trespassers.” We think, under the circumstances, the orator may sustain his bill, provided he has alleged therein such facts as constitute a legal title to or equitable interest in the land in question. He does not allege facts constituting a legal title, but he clearly sets forth an equitable interest in the land. The proceedings set forth in the bill show a purchase at the tax sale of the lot in question, by the persons [125] under whom the orator claims. They do not constitute a legal title, but after the time of redemption expired, were, and are now, evidence of an equitable interest in the land, and enable the purchaser to call in the legal title. The purchaser has, in effect, a lien upon the land. In Ohio it has been held that the interest of the purchaser savors so strongly of realty that it descends to the heir, and is not assets in the hands of the executor. Slade’s Comp. 663, 668; 2 Blackw. on Tax Titles, sec. 963; Rice’s Lessees v. White, 8 Ohio 216. The demurrer should have been overruled. Decree reversed and cause remanded, with leave to defendant to bring forward his answer, if he shall be so advised.