Simeon N. Freeman, Appellant, vs. Henry Timanus, Appellee, 12 Fla. 393

WESTCOTT, J., delivered the opinion of the court: This is an appeal in Chancery entered after a final decree based upon an order taking the bill for confessed- in the court below. The statute of 1853 allowing appeals from interlocutory orders does not change the rule laid down in this court in the case of Betton vs. Williams, 4 Fla., 14, as it expressly provides that an appeal entered after final decree shall bring up the interlocutory orders for review, and that the postponement shall not be held as an acquiescence.

It was held by this court in the case mentioned that such an appeal could only bring before this court the proceedings in the cause anterior to the default upon which the order taking the bill for confessed was based, and it is only to that extent that wo oj>en the record in this ease. There is, however, this distinction between this case and the case of Betton vs. Williams. In the last case, after the demurrer was overruled, the ease was abandoned, and there was no appearance at the hearing pr exception to the final decree. It passed by default.

Here there was no abandonment, but appearance at the hearing- and exception to the final decree. 25 Wend., 250. It is true that the proceedings are cx parte after the entry of the order that the bill bo taken pro confesso, but the decree under the statute is required to be such as is “ proper,” and consequent from the matter of the bill, and in making which there is necessarily the exercise of a judicial judgment, the plaintiff not being- allowed to take such decree as he can abide by. 2 Smith’s Ch’y Practice, 24; Thomp. Dig., 457.

It is unnecessary in determining this case to say whether the appearance at the hearing and exception to the final decree modifies the rule announced in the case of Betton vs. Williams, nor do we express any opinion upon that subject, or upon the regularity or propriety of the interlocutory order in this case striking out the answer.

The appeal in this case bringing before this court the record prior to the default, the bill is open for our inspection, and if upon the face of the bill there is no equity, or there is a plain and adequate remedy at law, the case must be remanded with directions conformable to that view. It may be urged that no such objection being made in the pleadings or presented in the decree of the Chancellor, this court cannot consider them. Such, however, is the practice of appellate tribunals in England, and such is the practice in the Supreme Court of the United States. 1 Phil., 399; 12 Ired., 231; 19 Howard, 278; 8 B.

Mon., 137. The rule should certainly prevail in oases of this character. The case as stated by the bill is briefly as follows: Each party, plaintiff and defendant, claim title to certain real estate. There are suits pending in the courts of the United States which it is thought involve the questions upon which their respective rights depend.

The plaintiff* in actual possession, and who claims both possession and property, and the defendant not in actual possession, but who claims the right of* possession as well as property, make an agreement that plaintiff shall retain possession without prejudice until the matter is determined by the United States Circuit Court in the cases pending in that court, and if the questions are determined against Mm he agrees to pay a reasonable rent, to be determined'by the parties after the decision of the circuit court.

It is alleged that in violation of this agreement the defendant, before these questions are decided by the circuit court, claiming that the relation of laudlord and tenant exists between them, institutes his action in a magistrate’s court to recover possession upon the default of his tenant (which he alleges plaintiff to be) in the payment of rent which he states is due, whereupon this bill is filed.

It describes the title of the plaintiff, as well as the title of the defendant, sets out the agreement for possession in the plaintiff as above described, and its violation by defendant, ami -prays that defendant’s title be set aside, and for a perpetual injunction against the defendant, his heirs,.and assigns, restraining them from ever setting up any title, or claim in the property. Upon the case made by the bill, plaintiff's remedy in the possessory action is to show for cause the agreement under which lie is in possession, and taking the case as he states it. it is a plain and adequate remedy at law. Thomp.

Dig., Without- determining any question connected with the decree of the District Court of the United States, or the tax sale, it is evident that under this agreement as described in the bill, plaintiff has no more right to come- into a- court of equity to settle the question of title, than has defendant to seek a- court of law to establish his asserted right of possession.

They have agreed to abide the decision of another tribunal The agreement as stated in the bill is not that defendant shall remain in possession permanently without a payment of rent, but that he shall remain in possession until the cases are determined by the circuit court, and in the event the decision is against him he shall pay such rent as is then agreed upon. If the decision should be against him, and he should make default in payment of the rent agreed to bo paid, a right to institute the possessory action would accrue to defendant.

While this is the agreement, the prayer of the bill is for a perpetual injunction. We must assume that the agreement mentioned in the bill vs executed so as to be available at law to meet the possessory action. This being so, the parties should be left as they have placed themselves by their agreement, which prohibits this court from settling the question of title, as well as the magistrates’ court from adjudicating the question of possession.

The facts claimed as constituting the equities in this bill are "based principally upon the agreement which it sets up, and that agreement, if it is as described, is a good defense at law to the possessory action, which does not involve the title. An injunction to stay proceedings at law is not granted where the injury complained of is plainly remediable by the court of law, as in this case. Story’s Eq., § 875; Mit. Eq. Pldg., 127, 128, 131.

We cannot vícav the case as one in which the agreement has been rendered inoperative by the act of-the parties, among other reasons, because the plaintiff claims the benefit of it in his bill. But if it could be so viewed it leaves the bare question of title, and a court of equity will not entertain a bill where the plaintiff in possession seeks to enforce a merely legal title to land without any supervening equity. 19 How., 278; 2 Sch. and Lef., 209, 210; 2 Bro. P. C., 39; 44 Barb., 167.

That there was no jurisdiction in the court of the United States, or that there was no personal service in the proceeding against the property when sold under the decree of confiscation (which are the allegations in the bill), are not supervening or extraneous equities which will enable a complainant in possession to settle in a State court of equity an admitted question of title between himself and the purchaser at the confiscation sale.

Besides, should it be conceded that a State court of equity could under these circumstances settle the question of title, it certainly acts too hastily and without due consideration when, in the absence of a transcript of the record of the decree or judgment of the court of the United States, it proceeds to adjudge it, as well as the proceedings under it, void.

Such matter, in the language of the statute, is not “proper to be decreed,” without at least a transcript of the record, and courts of the State, as well as the courts of the United States, should be well satisfied that they do not exceed their powers, and that they act upon sufficient evidence, when they deal with the judgments and decrees of each other. In this case no parties but the plaintiff’ and defendant are concerned in the question, and there is no pretence for avoiding a multiplicity of suits within the meaning of the authorities upon that subject. 19 How., 279; 2 Sch. and Lef., 210.

The bill should have been dismissed at the hearing. It is ordered, adjudged, and decreed that the decree in this cause is-reversed and set aside, and that the cause'be remanded to the court below with directions to take such further proceedings therein as are conformable to the views expressed herein and the principles of equity.