Robinson v. Cross & Pomeroy , 22 Conn. 171 ( 1852 )

Storrs, J.

The plaintiff, by his bill, seeks first, a release from the defendant Cross, of the interest in the land mortgaged to him by the plaintiff; secondly, a partition of the land between him and the defendants; and thirdly, an injunction restraining the defendants from dispossessing him of two-fifths of the land recovered by the latter, in the action of ejectment.

Upon the payment, by the plaintiff, of the sum decreed to be paid by him, on his mortgage to the defendant Cross, the latter became the bare trustee for the plaintiff of the interest so mortgaged, which was two undivided fifths of the land; and it was his duty, when requested by the plaintiff to release to the latter that interest. As nothing has since occurred, to change the relation between them, Cross still remains such trustee, and the same duty rests on him. The plaintiff is, therefore,- entitled to a decree, that Cross shall release to him such interest, or to a decree, by which the legal title to the said two-fifths shall be directly vested in the plaintiff; which latter course w'e deem most advisable in this case. It is more simple and direct than the other, and has been more commonly taken, since the passing of the statute, giving that power to courts of equity, especially where the object is merely to transfer a legal title; and it would moreover, in this'instance, expedite a partition of the land between the plaintiff and the defendants, to which, in our opinion, the former is entitled, and take away all color from the objection sometimes urged against that proceeding, on the ground of the parties having only an equitable title. Whichever of these modes of transfer is adopted, we see no good reason, why such an objection ought to prevail in a court of equity, nor has any authority been adduced in support of it, in a case like the present, where the legal title of the whole land is in the defendants, but one of them is the bare trustee of a certain proportion of it for the plaintiff, 'and there are no circumstances which can produce any possible injustice or inconvenience to either of them, from a separation of their interests.

The plaintiff is also entitled, on the plainest principles of justice and equity, to the injunction which he seeks. The legal title of. the plaintiff’s interest’in the land having been vested in Cross, by the mortgage, and the defendants being the legal owners of the rest, it was not in the power of the plaintiff to prevent a recovery of the whole, by the defendants, in their action of ejectment; there was, therefore, no laches in the plaintiff, in suffering that recovery. But it would be obviously inequitable, for the defendants to use the execution which they may obtain on their judgment, in that action, for the purpose of dispossessing the plaintiff of that part of the land recovered, which was so mortgaged, of which he is now the absolute equitable owner, which .the defendant Cross holds.only as his naked trustee; and the legal title to which, as we have already decided, it is the duty of Cross to convey to him. The only effect, of refusing an injunction against such a use of the execution, would be to suffer the plaintiff to be deprived of the possession to which he is equitably entitled, and to compel him, after the legal title shall have been vested in him, pursuant to the decree in this case, to bring an action of ejectment against these defendants, for the restoration of that possession, in which he would, of course, recover it. It is unnecessary to refer to authorities, to show that, in such a case, there is ample power in the court to grant such injunction, or that it ought to be exercised.

The right of the plaintiff to the relief he asks for, is, therefore, clear, but for the objection of multifariousness, set up by the defendants, in their demurrer, and which is alleged to consist in the joinder, in the bill, of distinct and independent matters and grounds of relief, which can not properly be united.

The plaintiff seeks to obtain a legal title to that part of the land, which was mortgaged by him, and which legal title is withheld, by one of the defendants, who holds it as a bare trustee for the plaintiff; and also to quiet himself in the possession of it, which is threatened by both defendants, in whom is now vested the legal title of the whole land, and also a legal right to the possession of it. This object can be accomplished, only by obtaining a release of the legal title from the defendant, who thus holds it as such trustee, and an injunction, restraining both defendants from dispossessing the plaintiff, as they have the legal, although not the equitable, right and power to do, on the execution to be issued on their judgment, in the action of ejectment. The plaintiff’s title being useless, without the possession, and the possession being precarious, without the title, his remedy, to be effectual and ample, must consist of a combination of both of these branches of relief: both, therefore, should be granted in this case; and for that purpose, both defendants should be made parties. Indeed, there is such a privity and connection between these defendants, as to the title and possession, that full justice can not be done to the plaintiff, without bringing both of them before the. court; and the joinder of them is, therefore, sanctioned by the well-established rules on this subject. Nor do we see any objection to the prayer for a partition, in addition to, and connection with, that for the other relief sought; and we are of opinion, that both may be granted on this bill. The right to the partition results from the facts which had been stated, as a foundation for such other relief; and in a case where the plaintiff thus shows himself entitled, against the same defendants, on the same facts, to these two different kinds of relief, one of which is only additional to the other, and both connected with the same subject matter, and no injustice can arise from granting both together, we. think that convenience and propriety require that course* rather than that we should put the plaintiff to the necessity of multiplying suits, by resorting to separate bills against these defendants, for these purposes. The bill, therefore, is not exceptionable, in either of these respects.

We advise that the demurrer be overruled.

In this opinion, the other judges concurred.

Demurrer overruled.