Bouton vs. The City of Brooklyn and Briant, 15 Barb. 375

By the Court, Brown, J. The plaintiff invokes the interposition of the equitable powers of this court to avoid the assessment for grading Washington park, and to restrain the collector, Isaac P. g. Briant, from proceeding under the warrant to enforce the same, upon two grounds. 1st. To prevent a multiplicity of suits, and the consummation of

an act greatly injurious to the plaintiff and to others, whose lands are charged with the assessment, and for whose benefit and in whose behalf in common with himself the complaint is filed; ,and 2d. To remove the cloud upon the title of the lands of the plaintiff and those other persons for whose benefit the complaint is filed, created by the lien of the assessment, Neither of these grounds is, in my judgment, tenable.

It may be important to ascertain in what cases and for what reasons the practice of the equity courts permits a plaintiff to file a bill in his own behalf as well as in that of all other persons interested in the same question. This class of cases forms an exception to the general rule, that all persons materially interested, legally or beneficially, in the subject matter of the suit, are to be made parties, either as plaintiffs or defendants, however numerous they may be.

Whenever there is reason to apprehend that a strict adherence to the rule will put it out of the power of the court to administer the relief sought, then it may and should be dispensed with. “The general rule is, that all persons mutually interested, either as plaintiffs or defendants, are to be made parties. There are exceptions just as old and as well founded as the rule itself. When the parties are beyond the jurisdiction of the court, or so numerous that it is impossible to join them all, a court of chancery will make such decree as it can without them.

Its object is to administer justice, and it will not suffer a rule founded in its own sense of propriety and convenience to become the instrument of a denial of justice to parties before the court, who are entitled to relief. What is practicable to bring all interests before them will be done. What is impossible or impracticable, it has not the rashness to attempt; but it contents itself with disposing of the equities before it, leaving as far as it may the rights of others unprejudiced.” (Wood v.

Dummer, 3 Mason’s Rep. 317.) If that rule (requiring persons interested to be made parties) were to apply in its strictness to a case of this description, this consequence would follow, that justice in such a case would be unattainable in this court; because it is perfectly certain that if it were necessary to put upon the record the names of all the persons who are members of the partnership when this bill was filed, for they then amounted to very nearly 600, it would be utterly impossible that the suit should ever come to its termination, from the necessary abatements which would from time to time take place from deaths and other causes.” (Small v.

Allwood, 1 Younge’s R. 457.) Thus it is seen that the rule which permits the omission of parties interested in the question litigated, and the filing of a bill by one in behalf of all others interested, is adopted from necessity, to prevent a failure of justice, which could not otherwise be obtained. The examples given by Mr. Story, in his treatise upon equity pleadings, will further illustrate what has been said. A part of the crew of a privateer may bring a suit against the prize agents, in behalf of themselves and others, who had signed the articles, for an account and distribution of the prize money.

A few creditors may maintain an action in behalf of themselves and all the other creditors of a deceased debtor, for an account and application of his assets to the payment of his debts. So creditors, parties to a trust deed for the payment of debts, are allowed to sue on behalf of themselves and the other creditors named, Á legatee may also prosecute in the same form for a settlement of the account of the executor and the payment of all the legatees. The parties also to a voluntary association for public or private purposes, may in like manner sue and defend in behalf of themselves and their associates.

Where a rate is to be assessed by commissioners upon the inhabitants of a town, in aid of a charity, some may sue in behalf of themselves and others, alleging a misapplication. So a few of a large number of parishioners were permitted to sustain a bill on behalf of themselves and the rest, for relief against acts done by commissioners under

an act of parliament, injurious to their common right. These examples might be multiplied ad infinitum, but I have not been able to find any of them to which the case made by the plaintiff in this action bears any resemblance. His action is not brought to assert a common right, nor to procure an account and distribution of a common fund; nor to restrain the commission of

an act injurious to property or rights in which he and those in whose behalf he sues has a common interest. If the persons whose property is alleged to be charged with the lien of the assessment were less numerous, than they are; if, indeed, they were but two or three in number, there would be no manner of necessity for making them parties ’ for either could sue alone. The lands supposed to be affected by the cloud, are held in severalty, and the nonjoinder of the others could not be set up as a reason why the action at the suit of one should not proceed.

The reason, therefore, why the law allows bills to be filed at the suit of a few, in behalf of themselves and others, does not apply to such a case. Seen in this aspect, the action is for the benefit of the plaintiff alone; and is to be disposed of in the same manner as if the charges and allusions to others were stricken from the complaint. Can the complaint be regarded as in the nature of a bill of peace ?

And does the plaintiff bring himself within the principles which govern actions brought for repose and to repress litigation ? “ Bills of peace are brought to establish and perpetuate a right which from its nature may be controverted by different persons, at different times and by different actions. They may be resorted to when one person claims or defends a right against many, or where many claim or defend a right against one. The obvious design of such bills is to procure repose from perpetual litigation, and they are therefore called bills of peace.” (Story’s Eq.

Jur. §§ 853, 854.) “ Bills of this nature may be brought by a parson, for tithes, against his parishoners; by parishioners against a parson, to establish a modus, (which is a particular local manner of tithing, different from the general law;) by a landlord against tenants, for encroachments under color of a common right; or by tenants, against the lord, for disturbance of a common right; by a party in interest to establish a toll due by custom; by a like party to establish the right to the profits of a fair, there being several claimants ; by a lord to establish an enclosure which has been approved under the statute of Merton, and which the tenants throw down although sufficient common of pasture is left.” (Id. 855.) Ic will be seen that in these actions there is a common right to be asserted or maintained, in which numbers, either on the one side or the other, or upon both sides, have a common interest, or there must have been repeated attempts to litigate the same question, as in the old action of ejectment when the verdicts and judgments did not conclude the parties.

The City of London v. Perkins, (4 Brown’s Parl. Rep. 157,) was a bill filed to establish a right to a duty against certain dealers in the

article whereof the duty was claimed, a few only of the dealers being made parties. The action was maintained upon the ground that a great number of actions might be brought. The Mayor of York v. Pilkington and others, (1 Atk. 282,) was an action to quiet the plaintiffs in a right of fishery in the river Ouse, of which they claimed the sole fishery for a large tract against the defendants, who claimed several rights as lords or occupants of adjacent lands. The lord chancellor thought the bill proper, and overruled the demurrer. In Tenham v.

Herbert, (2 Atk. 483,) the same doctrine was recognized, but the demurrer was allowed upon the ground that the right to the oyster fishery was only in dispute between two persons, and there had been no trial at law. Earl of Bath v. Sherwin, (Prec. Ch. 261,) and Leighton v. Leighton, (1 P. Wms. 671,) were cases where the court entertained bills to repress further litigation in the action of ejectment, after there , had been several trials and satisfactory judgments at law. In The Trustees of Huntington v.

Nicoll, on appeal, the respondent hiicol claimed to be the owner of certain islands upon the south side of Long Island, which were also claimed by the appellants, in trust for the inhabitants of the town of Huntington. Four several actions of trespass had been brought against persons who entered under authority of the trustees, which had been removed into the supreme court. There was a trial in one of them and a verdict for the respondent.

The court of chancery and the court for the correction of errors sustained a suit brought to prevent a multiplicity of suits at law, and to have the title tried and finally settled. In Eldridge v. Hill, (2 John. Ch. Rep. 281.) the chancellor refused to entertain a suit to restrain the defendants from continuing to commence suits for obstructing a water course which conducted the water from the defendant’s mill through the lands of the plaintiff; holding that a bill of peace, enjoining litigation, would only lie where the plaintiff had already satisfactorily established his right at law.

Or when the persons who controvert it are so numerous as to render an issue, under the direction of the court, indispensable to embrace all the parties concerned and to save a multiplicity of suits. In West and others v. The Mayor, &c., of New York, (10 Paige, 539,) the plaintiff had obtained an injunction from the master, restraining the defendants from prosecuting suits against the plaintiffs and their agents, for breaches of the ordinance relating to weighing coal.

The chancellor dissolved the injunction, holding, amongst other things, that if the ordinances were invalid and did not render the complainants liable to a penalty, they had a complete defense at law. The plaintiff in the case now before the court, states no ground upon which he can reasonably apprehend a multiplicity of suits or a repetition of the litigation, after the validity of the assessment for grading the park has once been determined. There is but a single person to litigate with him, and one trial and judgment anreversed will be final.

He therefore does not bring himself within the principle of any of the cases in which bills for peace and repose have been sustained. The most that he has reason to apprehend is a single trespass by the seizure of his property under the collector’s warrant, and for that he has an adequate remedy in damages. The plaintiff next claims to have the cloud upon the title of his lands, created by the assessment, removed by a decree of the court.

To entitle himself to relief upon this ground he must show that the assessment if regularly made by persons having authority for that purpose would constitute a lien upon the lands supposed to be charged; that the proceedings are irregular and void, and that the irregularity which vitiates them does not appear upon the face of the proceedings themselves, but can only be made to appear by facts the evidence of which is outside and extrinsic of the proceedings. The power of the corporation of the city of Brooklyn to grade Washington park, and to make an assessment to defray the expenses, is not disputed.

Whether it should be by a local or a general assessment, whether it should have been made as it was made by the street commissioner, under

section 30 of title 4 of the act relating to the city of Brooklyn, passed April 4th, 1850, or by three commissioners to be appointed by the county court or the supreme court, under

section three of the same title, I shall not stop to determine. This branch of the case may be safely disposed of upon another ground. “ Every statute authority in derogation of the common law, tb divest the title of one and transfer it to another, must be strictly pursued or the title will not pass. This mere naked power in the corporation, and its due execution, is not to be made out by intendment. It must be proved. It is not a case for presuming that officers have done their duty, but what they have in fact done must be shown.

The recitals in a conveyance are not evidence against the owners of the property, but the fact recited must be established by proof aliunde. He (the purchaser) must show, step by step, every thing which has been done which the statute makes essential to the due execution of the power.” (Sharpe v. Speir, 4 Hill, 76.) Each of the separate proceedings upon which an assessment like that in question is made is essential to its validity, and if one is wanting, the assessment and the sale under it is absolutely void.

The plaintiff charges “ that many of the facts showing the irregularity in the proceedings to impose the alleged assessment and the invalidity thereof will not appear upon the face of the papers, or proceedings necessary to establish such lien, and can only be shown by testimony outside and extrinsic of such papers and proceedings,” He nowhere points out what the irregularities are to which he alludes.

And if the complaint had rested upon this general charge alone, it must have been adjudged bad on demurrer; for, to make out a "case of equitable cognizance, he was bound to charge specifically in what particulars he deemed the proceedings irregular. He does however charge that the corporation had no color or authority of law to take proceedings for assessing the expenses of grading the park as.a local assessment, and that it should have been made by commissioners appointed by the county court or the Supreme court, and not by the street commissioner of the city of Brooklyn.

These errors —if they are errors—are patent upon the, face of the papers. The first step taken in the defense of an action of trespass for seizing property under the collector’s warrant, or in the trial of an action of ejectment brought to assert the title to lands, made under the assessment, would disclose them. The plaintiff is therefore brought by his own complaint within the class of cases in which the courts of equity have uniformly refused to interfere, as the authorities will abundantly prove. In Mooers v. Smedley and others, (6 John. Ch.

Rep. 28,) it appeared that the supervisors of the county of Clinton had illegally charged with the taxes certain moneys allowed as bounties for the destruction of wolves, and the court of chancery was asked to restrain their collection by injunction until the judgment was given upon certiorari to remove the assessment and proceedings into the supreme court. The chancellor refused the injunction, declaring that “ in the whole history of the English court of chancery there is no instance of the assertion of such a jurisdiction.” In Pet- tit v.

Shepherd, (5 Paige, 493,) the late chancellor asserted “ the jurisdiction of the court to set aside deeds and other legal instruments which are a cloud upon the title to real estate, and as a necessary consequence to interpose its aid to prevent such shade from being cast upon the title when the defendant evinces a fixed determination to proceed with the sale.” But he did not consider the nature of the defects in the deeds or other instruments, whether latent or patent, which would justify its interposition. Oakley v.

Trustees of Williamsburgh, (6 Paige, 262,) was a bill filed for an injunction to restrain the defendants from altering the grade of a street as theretofore established, and from digging down the street to the injury and detriment of the complainants, who were property owners. The chancellor allowed the injunction; and although the opinion delivered contains some expressions which would seem to favor the position of the plaintiff in this action, the case decides nothing more than that after the grade of a street had been regulated and established by the trustees, they could not alter it as the charter then was.

The Mayor, &c. of Brooklyn v. Meserole, (26 Wend. 132,) was a bill filed to vacate ,and set aside an assessment charged to have been illegally made for widening and extending Bedford road, upon the ground that it was an incumbrance and a cloud upon the respondents’ title.

Chief Justice Nelson delivered the opinion in the court of errors, and he pronounces what must be regarded as the true doctrine. “ The doctrine,” he says, “ grew out of applications to have surrendered up and canceled deeds and other instruments which were utterly void, but might be used as a means of casting a doubt over the title, and in the lapse of time endanger its security from the loss or difficulty of procuring evidence of the fact.

But even the exercise of the power in such cases fluctuated some time, in England, Lords Thurlow and Loughborough inclining against it on the ground that the party’s remedy at law was complete. It cannot indeed be said to have taken root as an established doctrine of the court until the time of Lord Eldon. (7 Ves. 313.

Id. 581. 17 Id. 111.) And it is now still denied there when the instrument is void upon its face, as it is no better than blank paper, incapable of being used for vexatious purposes. (3 Mylne & Craig, 97. 7 Sim. 627.) Has a court of equity evei- claimed or exercised the right of inquiring into the proceedings of subordinate tribunals of special and local jurisdiction, had either under a statute or the common law, which may affect the owners of real estate, with a view to set them aside if void at law, as an obstruction or cloud upon the title ?

Unless this general authority can be established, none can be derived by inference to interfere to prevent the proceedings, for it is vain to argue that the court may interfere and arrest them, if no authority exists to review and set them aside aftér consummation.” He admitted there were two exceptions to the general rule; where the interposition of the court wa's necessary to prevent á multiplicity of suits, and'where the proceedings of the subordinate tribunal or the acts of public officers, affecting real estate, might in their execution occasion irreparable injury to the freehold.

The court for the correction of errors coincided with these views, and the decision of the chancellor affirming the injunction was reversed." Wiggin v. The Mayor of New- York, (9 Paige, 16,) and Van Doren v. The Mayor of New- York, (Id. 388,) are authorities affirming the same doctrine. Livingston v. Hollenbeck, (4 Barb. 9,) was a bill filed to restrain the sheriff of Columbia from proceeding to advertise and sell certain lands of the plaintiff under warrants issued to him by the county treasurer, for taxes, upon the ground of irregularities in the assessment.

The court at general term dissolved the injunction, holding that “ if the proceedings were void, the law affords an adequate remedy without resort to a bill in equity. In such ease the sale of the woodlots in question would not divest the title of the plaintiff, but he would have a perfect defense at law against an action to recover from him the possession.” Fleetwood v. The City of N. York, (2 Sandf. S. C. Rep. 475,) was an action brought to - recover back money paid to redeem several lots of ground from a sale made under an assessment fur filling the lots, which was alleged to have been illegal.

The opinion delivered by the late Justice Sandford contains this paragraph: “The muniments of title upon an assessment sale consist of several proceedings, all of which are indispensable to its validity, and if one be wanting no title is shown. Of these links in the chain the plaintiff insists that three at least never existed; the original ordinance directing the filling, the assessment of the expense, and the advertisement for redemption. Bach of these proceedings forms an essential part of the record of the assessment title, and in their absence such title is void upon its face.

A conveyance or "judgment void upon its face does not constitute ,a cloud upon the title: assertion of a title under such a conveyance does not afford a ground for equitable interference.” (See also 2 Story’s Eq. Jur. §700 a, and Cox v. Clift, 2 Comst. 118.) These authorities cover the whole ground in controversy, and are in my judg ment decisive against the plaintiff. [Dutchess General Term, July 4, 1853. BarcvXo, Brown and S. B. Strong, Justices.] The judgment for the defendants upon the demurrer, at the special term, should be affirmed. Judgment affirmed.