BROWNE v. BROWNE, 4 F. Cas. 440

BY THE COURT. The lessor of the plaintiff has an equitable title, as tenant in common, to 165 out of 2,500 parts of the entire tract of land vested in the trustees, for the benefit of those who compose what is called the Population Company. The trustees have conveyed to the lessor of the plaintiff in severalty, the lands in question, for the term of six years; and if they had conveyed it to him in fee, though for the express purpose of enabling him to recover on the law, instead of the equity side of this court, how would this oppose either the letter, or spirit of the constitution and act bf congress?

Not the former, because the parties are citizens of different states; nor the latter, because this court has jurisdiction of the cause without the deed, and it is merely the mode of proceeding, which is changed by it Suppose, instead of 1,800 partners, there were but two, the one living in New-York, and the other in Pennsylvania, and, that the trustee should convey to the New-York citizen, one-half of all the land in severalty.

Upon what ground could his right to recover that half be resisted, even although it appeared, that, as soon as he should recover, it was his intention to vest one-half of the land recovered, in the other tenant in common? Could he not, without the deed, have recovered the same land, by filing a bill on the equity side of this court against the trustees and the other equitable owners, so as to compel the trustees to convey to him in severalty his half of the land; and after that, could he not institute suits on ithe law side of this court against the tenants in possession?

If the trustee could be compelled to make such a conveyance, and this would most certainly be the case, though the plaintiff should state in his bill, that his object was to sue on the law side of this court, as soon as the conveyance was made; may not the trustee make the conveyance, without a decree against him?

The Pennsylvania tenant in common, could never sue in this court, either at law, or in equity, for his part; nor would the avowed intention of the New-York tenant, to convey one-half of the land to his companion, after the recovery; be an objection with this court, on its equity side, to ordering a conveyance. The objection could only arise, when the New-York tenant in common should attempt to recover more than his proportion under his existing equitable title, or under a colourable conveyance for such purpose.

I cannot, I confess, distinguish this case from that of Hurst and McNeil [supra]; and, as we are not satisfied, that that opinion was wrong, we think it right to decide this question in the same manner. At any rate, this motion is improper at this time; because, if the deed be good, the plaintiff may maintain his ejectment upon it, beyond all dispute; and, if void, so that his only title is an equitable •one, the objection to his recovery, on such title, can be only proper at the trial. Rule discharged.