Whyte v. Spransy

Mr. Justice Shepard delivered the opinion of the Court: The first assignment of error is that the court erred in entertaining the bill because it contained no description of the property except by reference to exhibits. The record does not show that this point was raised in the hearing below. It has no merit, however, because the property is particularly described in the trust deed which was attached as an exhibit and by direct reference made a part of the bill. Strictly speaking, the bill should contain all such material allegations; but the reference was sufficient, certainly, for the purposes of the interlocutory hearing. The defendants’ answers substantially admit the title of the complainant under the trustees’ conveyance and his right to the possession of the premises. They show no ground of defense whatever to the depending action of ejectment that was made necessary by their refusal to surrender possession after their title had passed. It is scarcely worth while to say, that the allegations that the property was offered for sale at an unfavorable season of the year and in consequence sold for considerably less than its actual [460] value, constitute no ground of relief at law. And if they had been made the grounds of a bill in equity to set aside the sale for illegality or irregularity, or of a cross-bill in this proceeding for the same purpose, they would be clearly insufficient to entitle the defendants to such relief. Anderson v. White, 2 App. D. C. 408. The direct charge that the defendants are insolvent and have no property of any kind wherefrom a judgment for mesne profits in the action of ejectment could be satisfied, supported by the accompanying affidavits, is not fairly met by the general denial of insolvency as it appears in the paragraph of the answer recited in the preliminary statement. The second assignment of error denies the power of the court to take possession of the property through a receiver charged with the preservation of the rents pending the action of ejectment, and presents a question determinable by the following conditions: The plaintiff holds a clear title to the premises and has been entitled to the possession and enjoyment thereof since September 4, 1901. Defendants have remained in possession since said date, without title or license, and have converted to their own use the rents and revenues of the property. Plaintiff, owing to the crowded condition of the docket of the court of law, will probably not be able to procure a trial and judgment in his action of ejectment within a year. Defendants, who are insolvent, would, in the meantime, receive the rents of the property, and when plaintiff shall recover judgment therefor will have no property that can be subjected to execution thereon. We have no doubt of the jurisdiction of the court to appoint a receiver under these conditions, and are of the opinion that its discretion was correctly exercised in this case. Chase's Case, 1 Bland, 206, 212, 213; People v. Mayor, 10 Abb. Pr. 111, 117; American Freehold Mortgage Co. v. Turner, 95 Ala. 272, 276; Vause v. Woods, 46 Miss. 120, 127, 128; High on Deceivers, Secs. 557 and 558. [Mr. Justice Clabaugh, of the Supreme Court of the District of Columbia, sat with the court in the hearing and determination of this case, in the place of Mr. Chief Justice Alvey — Reporter.] Appellants concede the power where actual waste is being committed, or dilapidation suffered, but deny it where the conduct merely extends to the collection and appropriation, or enjoyment of the rents and revenues, notwithstanding they may be irretrievably lost by the plaintiff who is undoubtedly entitled to them. We are unable to recognize any substantial difference between the two conditions. In either case, the jurisdiction of equity is invoked to prevent an irreparable injury to the plaintiff whose title is admitted or made reasonably certain, by the act of one wrongfully in possession of his property. That the injury in one case consists in pecuniary loss through deterioration in the value of the improvements, and in the other in a like pecuniary loss through the appropriation by a wrongdoer of the value of the use of the same improvements, seems to us wholly immaterial. In either case the plaintiff would sustain a direct pecuniary loss for which the law can furnish no adequate or complete redress. This furnishes the ground of the jurisdiction of a court of equity. Taking jurisdiction, it furnishes the remedy necessary for relief, which in this case was the appointment of the receiver. For the reasons given, the decree will be affirmed with costs and the cause remanded for such other and further proceedings as may become necessary. It is so ordered. Affirmed.