Bond v. Little , 10 Ga. 395 ( 1851 )

By the.Court.

Warner, J.

delivering the opinion.

This is a bill filed by the complainants, praying for a perpetjual injunction to restrain the defendant from the further prosecution of an action of ejectment for the recovery of the possession of a lot of land in the County of Crawford, on the ground that there have been repeated trials between the parties at Law, in which the title of the complainants to the premises in dispute, has been satisfactorily established. The Court below, on the coming in of the defendant’s answer, dissolved the injunction, and dismissed the bill, for want of equity.

The first question which we shall consider is, that which relates to the complainants’ equity, as apparent on the face of 'their bill and exhibits attached thereto.

This application of the complainants, is what is termed in the books, a bill of peace, the object of which is, to quiet fruitless litigation.

On what principle do Courts of Equity interfere by injunction, in such cases ?

[1.] The principle on which Courts of Equity grantrelief in such cases is to suppress useless litigation; to prevent multiplicity of suits; to restrain oppressive litigation, and to prevent irreparable mischief. 2 Story’s Eq. 148, §853. Ibid, 153, §859. Thus, in actions of ejectment, which, not being conclusive, Courts of Equity will interfere, and after repeated trials and satisfactory determinations of the question of title, will grant a perpetual injunction to restrain further litigation. Milford’s Pleading, 116. However, Courts of Equity will not interfere in such cases, before a trial at Law; nor until the right has been satisfactorily established at Law. 2 Story’s Eq. §859. Eldridge vs. Hill, 2 Johns. Ch. R. 282.

This application of the complainants is to restrain the defendant from the assertion of his right to the land in dispute, in'the ordinary course of judicial proceedings, and the prayer of the bill ought not to be granted in a doubtful case. Alexander vs. Pendleton, 8 Cranch’s R. 462.

[2.] The right or title of the complainants to the tract of land in controversy, must be shown to have been satisfactorily estaba lished at Law, before a Court of Equity will interfere to grant relief, and will not grant it in a doubtful case. According to, these principles, let us examine the case, as made by the complainants.

They allege, that in 1841, a levy was made upon the lot of land, by a judgment creditor of Thomas Little ; that a claim was interposed thereto by the defendant, and on the appeal trial thereof, after the cause had been submitted to the Jury, the defendant withdrew his claim ; the execution then proceeded to sell the land, which was purchased by two of the complainants, Bond and Murdock, at Sheriff’s sale — the other complainant, Ewell Webb, having previously purchased the same land at Sheriff’s sale, while the claim was pending. According to the record, the defendant commenced an action of ejectment against Thomas Little, who was the tenant in possession, in 1843, to recover possession of the land, while the aforesaid claim waspending, and at August Term of the Court, 1845, a verdict was rendered in favor of the complainants, who had been made co-defendants to the ejectment suit.

In February, 1846, the defendant instituted another action of ejectment against the tenant in possession, to recover the lot of land, and at the following August Term of the Court, a trial was had, and a verdict rendered in favor of tkeplaintif for the premises in dispute, whereupon an appeal was taken, and on the appeal trial, after the evidence had been submitted, the plaintiff in that action (but now defendant) dismissed his action of ejectment. The complainants allege, that the defendant instituted another action of ejectment to recover the possession of the lot of land, in August, 1849, which latter action, they seek by their bill to perpetually enjoin. The state of the case, as made by the bill, between the parties, stands thus: The defendant withdrew his claim to the land once; obtained one verdict in his favor on the trial of his right to the possession of the land, and dismissed his action once after the evidence had been submitted to the Jury. The complainants insist, that but for doe withdrawal of the claim, the defendant would have had a verdict against him ; that they have obtained one verdict and would have obtained another, if the defendant had not dismissed his action.

The complainants’ equity is based on the withdrawal of the claim by defendant; that they have obtained one verdict against him, and would have obtained another, if he had not dismissed his action, disclosing the fact at the same time, that the defendant has obtained one verdict. The question arises, have the complainants shown that they have satisfactorily established their right to this lot of land, so as to authorize a perpetual injunction against the defendant? If, says Mr. Justice Story, the right has been satisfactorily established, it is not material what number of trials have taken place — whether two only, or more. 2 Story’s Eq. §859. The defendant insists, that the Court will never interfere by injunction, until there have been at least two concurring verdicts establishing the right. If this position was true, and adopted as a uniform rule, a vexatious plaintiff, in many instances, never could be restrained, for he would always prevent the two verdicts, by dismissing his action after the evidence had been submitted. The true rule, is that stated by Mr. Justice Story, and we should have held in this case, but for the fact that the defendant has obtained one verdict in favor of his right to the land, that the complainants had made on the record, a prima facie case for the interference of the Court. With that fact before us, we cannot say that the complainants have satisfactorily established their right to the land, beyond doubt, and therefore, we will not control the exercise of the discretion of’ the Chancellor in dismissing their bill for want of equity. It was insisted by the counsel for the plaintiff in error, that inasmuch as it did not appear from any positive allegation in the bill, that a verdict had been rendered in favor of the plaintiff in ejectment in the Court below, that this Court could not look into the original record of that Court, attached to the complainants’ bill as an exhibit, for the purpose of ascertaining that fact. It is true, that the allegation in the bill, in relation to this feature of the case, is very arfully drawn, but we will not say it was so drawn for the purpose of concealing that fact from the observation of the Court. The allegation in the bill is, (after stating the commencement of the action of ejectment,) that “ the said Ewell Webb, and Bond and Murdock, were regularly made parties defendant to the said action of ejectment, and pleaded by their counsel, issuable pleas thereto ; all of which will more fully appear by reference to a certified copy of the declaration in said cause hereunto annexed, marked exhibit E, and to which your orator prays reference as ofen as may be necessary; and that proceedings were had by the Court in said cause, and that the same came on for trial, &c.” The complainants pra-preference to this record of the action of ejectment from the Court below, which is annexed as an exhibit, as ojien as may be necessary. Now, in order to ascertain what “proceedings ” were had by the Court in said cause, it “ becomes necessary ” to refer to that record of the action of ejectment, which discloses the fact that there was a verdict found for the plaintiff in ejectment, who is now the defendant in this bill. Our attention has been called to the record as annexed to the complainants’ bill, and there the fact stares us in the face, and we are unwilling to shut our eyes and not see it.

Let the judgment of the Court below be affirmed.