Henderson v. Bates and Others, 3 Blackf. 460

Stevens, J. In this case I am compelled to dissent from the Court. This I do with great reluctance and due deference, being well aware that the judge who dissents must be, and always is, presumed to be in the wrong. But not being willing to shrink from anything that in my humble and weak opinion appears to be my duty, I shall, in as few words as I can, give my views of the case. [A statement of the case is here given.] The question before this Court is, Whether the demurrer to the bill was correctly disposed of? I will dispose of the last assigned cause of demurrer first.

As it respects so much of the last cause of demurrer as relates to the improper joinder of' Town, and Town <$/• Pulliam, as defendants, there is no error; the bill is good as to that, they may correctly be made defendants, although the bill might, perhaps, be sufficient without them. The claim of the complainant to the goods in question, and the rights of the other defendants under their several executions, are such as, at least indirectly, connect Town and Town Pulliam with the transaction; and the complainant might or might not make -them defendants at his pleasure.

As to the other branch of that objection it is different. All that part of the bill which relates to the fraudulent conduct of Town, unconnected with his dealings with those other defendants, in contracting said debts, confessing said judgments, issuing said executions, and making the levy on said goods, is entirely irrelevant to the rights and interests at issue between the complainant and these defendants, and cannot be joined.

This however does not vitiate the bill as to these defendants; the whole of those statements and every thing connected with them are mere surplusage, and might be stricken out; it in no vray affects the complainant’s right to the goods, nor the interests of these defendants under their executions. Those statements form no part of the gravamen of the complainant’s complaint. The first cause of demurrer is of more importance; it presents some difficulty, and is not, perhaps, clear of doubt.

It is a general principle, clear of doubt or uncertainty, that where a party has a complete remedy at law, equity has no jurisdiction. But to that general rule there are numerous exceptions, all well known to the books and to- every lawyer. To oust the jurisdiction of equity, the remedy at law must not only in general terms be complete, but it must be in all things equally complete, effective, and salutary. This is a bill in the nature of a bill of.peace, to settle a right and to prevent a multiplicity of suits at law.

The complainant is in possession of these goods, and claims 1,190 dollars and 28 cents worth of them as his own, and the remainder as mortgaged to secure the payment of 400 dollars certain rent, besides an uncertain sum in damages; these execution-plaintiffs who have levied on and seized those goods, consist of twenty-seven distinct and different firms and individual creditors, claiming under twenty-seven separate and distinct interests and judgments, &c.; and to settle this controversy by suits at law there must be twenty-seven separate and distinct suits.

And again, these twenty-seven several execution-plaintiffs may select their own time when they will have the right to these goods tried; they may release their present levies and levy again when it suits them; there is no power in a Court of law to compel a final settlement of all these claims with one suit, or at one time.

A bill of peace, say the books, may be made use of when a person has a right which may be controverted by different persons in different suits, or where it may be controverted by the same person at different times, and in such cases Courts of equity will interfere for the sake of peace, and to prevent a multiplicity of law suit's. 1 Madd. under that head.—Devonsher v. Newenham, 2 Sch. & Lef. 208. In the case of Tenham v.

Herbert, 2 Atk. 483, Lord Hardwiclce says, it is certain where a man sets up a right in himself, and where the persons who controvert it with him are numerous, and he cannot, by one or two actions at law, quiet the right of each separate claimant, he may come into equity, and that Court will direct an issue to determine the right, and that determination shall be made to determine the rights of all.

In Mitford’s Pl. 147, it is said by that great man, Lord Redesdale, that a demurrer to a bill will not lie for joining distinct claims in one bill, if the complainant claim one general right, which is controverted by several defendants, for he is entitled to have such a bill. In the case of Elridge v. Hill, 2 Johns. Ch. Rep. 281, it is said that a bill of peace will be allowed where the persons who controvert the title of the plaintiff are so numerous as to render an issue in chancery proper to save a multiplicity of suits at law. In the case of Huntington v. Nicoll, 3 Johns.

Rep. 595, Judge Spencer says, that where the complainant claims under one general right, which is controverted by several distinct persons, and where each suit'would only determine the individual right in question in that suit, equity has jurisdiction in order to put an end to oppression or to a multiplicity of suits. From this view of the authorities and the reason, I am satisfied that the complainant is entitled to the benefit of his bill, and that the demurrer should have been overruled. There is, however, another view which may be taken as to part of this case.

It appears to be a matter of controversy between the parties, whether the complainant holds the goods he received from the sureties of Town under an absolute purchase and sale, or under a mortgage. The defendants contend that the sale and delivery by Town to his sureties were absolute and not by way of a mortgage; that the instrument of writing conveying them is an absolute bill of sale and not a mortgage; and that the sureties in like manner sold them absolutely to the complainant. The complainant would seem to insist, that the instrument of writing conveying them is a mortgage and not an absolute bill of sale.

Which of these parties is correct, is a matter entirely immateriál in deciding upon the demurrer. If the sale by Town to his sureties was absolute, and the sale by the sureties to the complainant absolute likewise, then the goods absolutely belong to the complainant, and stand upon the same footing, with the other goods in dispute. But if they are held under a mortgage, the state of the title may perhaps be somewhat different, but the case as to this demurrer is not changed.

A mortgage is a conveyance by the mortgagor of his title and interest in the goods to the mortgagee, and it becomes an absolute interest at law if not redeemed at the appointed time; and in cases of a mortgage on goods and chattels, the equity of redemption of the mortgagor is not subject to be seized and sold on execution; the only relief the creditor has is by a bill in equity. If then the complainant holds under a mortgage, the parties are in the right Court. The case of Bowyer v. Creigh, 3 Rand. 25, is much relied on to sustain the demurrer to the bill in this case.

That case is totally unlike the case now before us in its facts, and also in the lavf that governed the decision of the Court. The Court in that case bottomed their decision on three distinct and specific facts, neither of which exists in this case. The first point made by the Court in that case, was, that the main and principal fact in the bill was untrue. Now there is nothing like that can come under consideration in the decision of this demurrer; the facts of the bill are taken to be true, at least they cannot be taken to be false.

The second point made by the Court in that case, was, that it was clear and palpable that the deed under which the complainant claimed, was made for the express purpose of cheating, defrauding, and hindering creditors. No such thing appears in this case; no evidence has been taken, nor is there anything in the record that even raises such a suspicion. And the third and last point made- by the Court in that case, was, that the complainant had, under the Virginia laws and practice, complete and ample remedy at law, in one single action.

The Court details and shows the proceedings under the Virginia laws, by which the complainant in that case could have had complete remedy at law, in a single suit; but we hare no such law or practice; there is then nothing in that case that in the least conflicts with this opinion. . W. W. Wick and C. Fletcher, for the appellant. J. Morrison and H. Brown, for the appellees. The judge, however, in his argument upon general rules and principles says, that in no case can a claimant who claims as a mere incumbrancer, go into a Court of equity.

It is at least doubtful what his honour means, and therefore it is hard to know whether he is sustained by the books or not. One thing however is certain, if he means that the equity of redemption in mortgaged goods and chattels can be seized and sold on execution, he is in direct conflict with the highest authorities; the relief in such cases is by bill in equity, at least so say the books.

As to the cross-bill of Pulliam, one of the defendants, about which something has been said, it is only necessary to say that it was correctly dismissed; it cannot be coupled with this, suit; the interests and issues under this bill being in all things distinct, and unconnected with the interests put in issue by that cross-bill. Before closing, it is proper that I should notice an objection which was urged in argument. It was said that Courts of chancery should always lean strongly against withdrawing the trial of such cases as these from a Court of law.

In answer to that, it is only necessary to say that bills of this character do not interfere with the mode of trial. It is a proceeding to prevent a multiplicity of trials on the precise same titles, — to prevent the complainant from being unnecessarily vexed and harrassed when he is willing to put an end to the litigation by a fair legal adjudication, — a proceeding to prevent unnecessary delay, doubt, and expense, and put a final quietus on the controversy.

A single issue is made up which embraces the whole merits, and is sent to a Court of law for trial, the event of which all the parties are compelled to abide. All the parties litigant are parties to the trial of that issue, and the chancellor may grant as many new trials of that issue as he thinks justice requires, if there is any proper ground for dissatisfaction or good cause for a new trial: hence that objection is wholly groundless. Per Curiam. The decree is affirmed with costs.