Ashburn v. Graves

SHELBY, Circuit Judge, having made the foregoing statement of the case, delivered the opinion of the court. Under rule 25 of this court the appeal and cross-appeal have been argued together as one case. Bucki v. Atlantic Lumber Company, 93 Fed. 765, 35 C. C. A. 590. The appellant, Ashburn, assigns that the court below erred in overruling his demurrer. One of the grounds of demurrer was that there was no equity in the bill; that the complainants’ remedy at law was ample and complete. The only mention of Ashburn in the bill is in the sixteenth paragraph, which we have copied in full in the statement of the case. The averments, in brief, are that McIntyre, one of the complainants’ attorneys, convej^ed to Ashburn the north half of lot No. 353, which was owned in fee by the complainants, and that Ashburn accepted the deed and had it recorded; that Ashburn had [971] leased to John W. Hightower the timber privileges on the north half of the lot; and that the lessee, under the lessor, is about to proceed to cut and convey away said timber, and through other persons has boxed the trees, and taken turpentine from trees on other portions of the lot. The contention is that these averments give the court jurisdiction in equity to remove a cloud on the complainants’ title by canceling the deed that McIntyre made to Ashburn, and that these averments confer jurisdiction to enjoin the threatened trespass. The jurisdiction of courts of equity to remove clouds from title is exercised for the reason that the deed, or other instrument constituting the cloud, may be used to injuriously or vexatiously embarrass the complainant’s title. There are well-established limitations upon the exercise of the jurisdiction. A plaintiff having the legal title, and not in possession, will ordinarily be left to his action of ejectment. This is the familiar doctrine of the federal courts. United States v. Wilson, 118 U. S. 86, 89, 6 Sup. Ct. 994, 30 L. Ed. 110; McGuire v. Pensacola City Co., 105 Fed. 677, 44 C. C. A. 670. When a local statute gives the remedy by bill in equity to remove a cloud on the legal title, without requiring the complainant to first obtain .possession, the remedy may be administered in appropriate cases by the federal courts. Southern Pine Co. v. Hall, 105 Fed. 84, 88, 44 C. C. A. 363. But we know of no such local statute affecting this case. What does the bill show as to the possession of lot No. 353? The appellee quotes authority to the effect that, if complainants allege that they are “seised in fee simple,” that is a sufficient allegation of possession. Gage v. Kaufman, 133 U. S. 471, 10 Sup. Ct. 406, 33 L. Ed. 725. That is true, but we find no such allegation in the bill. The extent of the averment is that the complainants inherited the property from Cyrus S. Graves. So far from alleging possession by the complainants, the bill tends to show that Ashburn, by his lessee, is in possession. It is alleged that Ashburn accepted a deed to the property from McIntyre; that he “has leased the timber privileges” on it to Hightower, who is about to proceed to cut the timber and to carry it away, and through other persons acting under him has boxed the trees, and has taken the turpentine from trees on other portions of the lot. These averments certainly do not show that the complainants are in possession of the property, and we think that they are intended to show that Ashburn and his lessee are in the .wrongful possession of it. For that reason the bill cannot be maintained as one to remove cloud from title. If this difficulty were out of the way, do the averments of the bill show such apparent title in Ashburn as to constitute a cloud on complainants’ title? The conveyance was made to Ashburn by McIntyre and one Watson. There are no allegations to show that either one of them had any apparent title to convey. They are strangers to the title set up by the complainants. If the complainants were in possession of the lot, and Ashburn sued for it, this deed to him, on the averments of the bill, would not enable him to recover. It would not make a prima facie case for him. No facts are alleged that, taken with the deed, would affect the title of the complainants, or interfere with their possession, if they were in possession. Ashburn’s title, as shown by the bill, would fall of its own weight, and the complainants [972] would never be troubled to offer any evidence.- Such a deed, under the facts averred in the bill, is not a cloud on title. Thompson v. Etowah Iron Co., 91 Ga. 538, 17 S. E. 663; Pixley v. Huggins, 15 Cal. 127; Rea v. Longstreet, 54 Ala. 291. It is true that Mr. Pomeroy, while admitting that the weight of authority sustained it, objected to this doctrine, and expressed the opinion that equity should go so far as to cancel a deed void on its face (4 Pomeroy’s Eq. Jur. [3d Ed.] § 1399), but the Supreme Court indorses the view that a void deed creates no such cloud as confers equity jurisdiction. Hannewinkle v. Georgetown, 82 U. S. 547, 21 L. Ed. 231; Rich v. Braxton, 158 U. S. 375, 15 Sup. Ct. 1006, 39 L. Ed. 1022. The only other alleged ground of equity jurisdiction in the case as against Ashburn is to enjoin him from cutting the timber on the land. The bill shows that the trees are not shade trees in a yard, or on a lawn, or'trees of any special value to ornament grounds. They are merely forest trees, the value of which may be easily estimated. There is.no averment in the bill that Ashburn is insolvent. There is nothing in the bill to show that the remedy at law is not ample and complete. The bill, therefore, contains no equity as one to enjoin the cutting of the timber. West v. Walker, 3 N. J. Eq. 279, and notes; Cowles v. Shaw, 2 Iowa, 496; Paddock v. Davenport (N. C.) 12 S. E. 464; Jerome v. Ross, 7 Johns. Ch. (N. Y.) 314; 1 High on Injunctions (4th Ed.) §§ 676, 699. In reference to trespasses by Crawford, it is alleged that, unless -said trespasses “are restrained and enjoined by the orders and decrees.of this court, your orators will suffer irreparable loss and injury.” If this language be construed as applicable to Ashburn, it is immaterial. It is the mere conclusion or opinion of the pleader. Such • facts must be stated as show the injury to be irreparable. This averment is not sufficient. Cruickshank v. Bidwell, 176 U. S. 75, 81, 20 Sup. Ct. 280, 44 L. Ed. 377. The bill showed no grounds of equitable jurisdiction as a suit against Ashburn, and his demurrer should have been sustained, and the bill dismissed as to him without prejudice to the rights of the complainants to sue at law if they were so advised. We are of opinion that the learned Circuit Court decided correctly in •dismissing the bill as to Crawford, and that the cross-appellants are entitled to no relief by their appeal. On the appeal Of Ashburn, the decree against him is reversed, and the cause remanded, with instructions to sustain his demurrer and to dismiss the bill as to him. The costs of the appeal will be taxed against the appellees, and the costs of the cross-appeal against the cross-appellants, PER CURIAM. The application for a rehearing is denied. See Southern Pine Company v. Hall, 105 Fed. 84, 44 C. C. A. 363, and cases there cited.