Bosley v. M'Kim

Stephen, J. at this term delivered the opinion of the. Court. Elizabeth Lawson, being seized in fee simple of a parcel.of ground lying in the city of Baltimore, caused the same to be divided into lots, and alleys for the benefit thereof, and a plot of the whole to be made, with a view to expose the same to sale, and on or about the first of December 1809, caused the said lots, or some of them, to be set up to. public auction. At said sale Jacob Myers became the purchaser of the lots designated on said plot by the numbers one and thirteen. The bill charges that the said Myers purchased tire said .lots, with am understanding that the portion of the north and south ten feet alley, intervening between the said.two lots, should be included in his purchase, and that he should have the same right and title to that as to the lots themselves. The bill further states, that at the said sale a certain James Bosley became the purchaser of lots number two and number fifteen; that a certain. John Small became the purchaser of lots number three, four and fourteen; and that Samuel and Waller Farnandis became tire purchasers in common of the lot number five; all of which last mentioned lots bounded on the north and south ten feet alley. The bill further charges that the said alley was designed for the accommodation of the purchasers of the lots bounding thereon, as a way or passage, and as an outlet for rain water, and other similar purposes, through the ground of the said Elizabeth Lawson down to Jones’s Falls. In the spring of 1810, Jacob Myers, under an impression that he had purchased. [499] the intervening alley, as well as the adjacent lots, began to build jon the lots purchased by him, and erected his buildings upon a part of the alley. After the completion of the buildings aforesaid, he resided several years in the same, until about the year 1815, when Bosley began to question the right of Myers so to cover with his buildings the said part of the said alley, and began to threaten to disturb him in the occupation thereof; and the bill charges that he insisted that he could make him pull down and take away such portion of his said buildings, or imy provements, as were placed upon the alley, in virtue of a right in himself, and the said Samuel and Walter Farnandis, to the use of the said part of the said alley; it further states that Myers, becoming alarmed for his title to the said part of the said alley, and for his buildings thereon erected, was induced to doubt his own unquestionable rights, and being anxious to avoid a law suit, on the first of July in the year 1815, joined with the said Bosley, and Samuel and Walter Farnandis, in the execution of a deed, by which, in consideration that the said Bosley and Farnandis transferred to him, Myers, his heirs and assigns, all their right, title, interest and claim of, in and unto, all that portion of the said alley which had been built upon by him, he Myers transferred and relinquished to them, their heirs and assigns, all his right and title to the use of the alley, except the part built upon by him as above mentioned. On the seventh of November, in the year 1816, Jacob Myers conveyed to John M‘Kim all his right and title to the property, so as aforesaid purchased by him at the sale of Elizabeth Lawson, subject, however, expressly to the contract so as aforesaid entered into by him with the said Bosley and Farnandis, bearing date on the first day of July, in the year 1815. Some time after the purchase of MLiirn from Myers, Bosley obstructed the passage of the water, from M'Kim's property, down the alley, relying for his authority so to do upon the said deed of the first of July 1815; and M‘Kim filed a bill in chancery to-compel the removal of the said obstruction, and to be quieted in the use and enjoyment of said alley, as alienee and assignee of the said Myers. The injunction prayed for was granted. Bosley, in bis answer, denies that at the said sale, (which he states he at.iepde.d from first to last,) there was any understanding that tfie [500] purchaser of lots number one and thirteen should become entitled to the intervening alley. He also admits that he permitted Myers to build on a part of said alley upon certain terms} but denies that he ever intended to relinquish, or ever did relinquish, his right or title to the said intervening portion of said alley, except for an adequate consideration, or in other words unless Myers relinquished all his right and title' to the residue of said alley. The bill charges that the deed of the first oi July 1815, was unduly obtained by Bosley, by menaces and threats, operating upon the fears and timidity of Myers,' and from a misapprehension, on the part of Myers, of his legal rights; all of which is denied by Bosley in his answer. On the 10th day of January, in the year 1824, Baltimore county court, in the exercise of its chancery jurisdiction, decreed the injunction, which had issued according to the complainant’s prayer in his bill, to be perpetual. From this decree the responden! in the court below prayed an appeal to this court; and upon the merits and propriety of that decree this court are now called, upon to pass their judgment. The first question which presents itself to the consideration of this court is, whether Jacob Myers can be considered as the purchaser of the intervening alley between lots numbered one and thirteen, as well as of the lots themselves? From the whole of the proofs, consisting of the acts of the parties, and the evidence, documentary án’d parol, this court are led to the conclusion that he was not. If he was not the purchaser of the intervening alley; there was a good and valid consideration to support the deed of the first of July 1815. M‘Kim became the purchaser of lots number one and thirteen, with a perfect knowledge of the contract entered into by Myers, under whom he claimed, with Bosley and Farna.nd.is; although then he might have acquired the legal title to the intervening alley in virtue oí the deeds from Lawson to Myers, and Myers to him, still it may be asked, what equity had he in the face of Myers, contract, subject to the operation of which he expressly purchased, to sustain his application to a court of chancery for relief in the manner and to the extent' he has asked it. It is the opinion of this court that he had none. It was contended, in the course of the argument, that the deed of the first of July 1815, did not operate to trains501 fer the right of the parties to that instrument to the use of the alley; that it was a right of way appendant, which could not be severed from or pass without a transfer of the lots to which it was appendant. But it is perfectly clear, that in. equity a contract may operate efficiently to carry the intention of the parties to that contract fully into eifect, although at law it might be wholly inoperative. “Equity which adverts to the substantial object of all contracts, independent of the forms which they assume, gives effect to the intent of the parties, by considering their acts as evidence of such a contract or agreement as will produce what is stipulated.” One case only, and that a familiar one, will be mentioned as illustrative of this doctrine of a court of equity. An assignment of a chose in action, as a bond oí ■the like, which in law is not assignable, is valid in equity. For a court of equity proceeds upon the principle, that the assignment, although not effectual as such at law, the bond not being assignable in point of interest, amounts nevertheless to a covenant or agreement that the assignee shall receive the money to his own use, which covenant or agreement that court will carry into specific execution. Upon this subject — see 1 Powell on Contracts, 189, and the cases there referred to. Taking this view of the subject this court do not deem it necessary to enter into an examination of all the questions which were raised in the course of the argument, it being sufficient to decide the case before them, that the appellee had no equity to support his application to the court below for an injunction. Dorsey, J. added. The annals of judicial proceedings do not furnish a case where a court of equity has granted a perpetual injunction to a plaintiff, to protect him in the enjoyment of a naked legal right, which he, and those under whom he claims, have by the most solemn deeds stipulated not to exercise; yet such is the predicament of the complainant in this case, such the interposition sought by him. Legal rights are to be asserted by legal means, and in such, ■cases courts of equity never lend their aid where equity and justice do not imperiously demand it. What species of equity would that be, which would exert itself to destroy a right, secured, as far as it can be done, by deeds founded on adequate [502] considerations, and vest it in him who had paid no consideration therefor, but had agreed, in express terms, by the deed under which he makes title, not to claim such right» This is the kind of equity sought for in this cause.