How v. Mortell

"Walkee, J. Courts of equity are invested with jurisdiction to decree new trials at law, when the judgment has been obtained by accident, mistake or fraud. This is the well recognized practice of the court. In this ease it was clearly established, by the evidence of Harvey, the attorney for the defendants in error, that the agreement was made and violated, as alleged in the bill, and whether by fraud or accident, the effect upon the rights of the parties is the same. That it was violated by design, seems to be clear, from the fact that the first writ of possession was sued out, but not executed within the year after obtaining the judgment. The second writ, which was executed, was not issued till after the expira- , tion of the year. "Why this delay until the right of taking a new trial was gone, unless it was to obtain an advantage over the other party ? The plaintiffs in error knew that any effort to execute the first writ would apprise defendants in error that the judgment had been obtained in violation of the agreement, and that steps would be speedily taken to procure the statutory new trial. The evidence seems to have warranted the decree granting a new trial. It is, however, urged, that it was error in the court below, on the hearing of the bill, to proceed to settle the title and adjust the legal rights of the parties. There was nothing alleged in the bill showing that the defense to the ejectment suit was in equity. It is contrary to all the rules of proceeding to try an ejectment suit in a court of equity. In all eases in which the title is legal and not equitable, the remedy is ample and complete at law, and no necessity can exist requiring the chancellor to assume jurisdiction. When the question of fraud or mistake was found to exist, and that the judgment at law was set aside and the new trial granted, the impediment to proceeding at law was removed, and the jurisdiction of the chancellor was at an end. The court below therefore erred in proceeding to a trial and decree on the title. And as the parties had no right to receive or retain any benefits from the fraud or mistake producing the judgment, the court did right in decreeing the possession to be restored, to abide the event of a trial of title in the ejectment suit. A party obtaining an unjust advantage, has no right to retain it. By restoring the possession to the complainants, the parties were properly placed in the same positions they occupied before the judgment at law was obtained. Of this, plaintiffs in error have no right to complain. The decree of the court below is reversed, and the cause remanded. jDecree reversed.