Ashley v. Little Rock

• Decision Date: 18 June 1892
• Citation: 19 S.W. 1058,56 Ark. 391
• Parties: ASHLEY v. LITTLE ROCK
• Court: Arkansas Supreme Court

19 S.W. 1058

56 Ark. 391

ASHLEY v. LITTLE ROCK

Supreme Court of Arkansas

June 18, 1892

APPEAL from Pulaski Chancery Court, DAVID W. CARROLL, Chancellor.

Reversed and remanded.

Sanders & Watkins for the Ashley heirs.

Upon the facts stated a clear case of equitable jurisdiction was made, and the bill was not subject to the objection of misjoinder of parties or causes of action. Story, Eq. Pl. pp 271, 284; Pom. Eq. Jur. pp. 243 to 274; 4 Ark. 340; 11 id 720; 20 id. 25; 2 How. U. S. 619; 17 N.Y. 592. The relief sought is purely equitable. 14 Ark. 345; 29 id. 612; 37 id 286; 30 id. 278; 44 id. 436.

Dodge & Johnson for the Railway Co. and Athletic Association.

The prayer of the bill embraces within its scope seven different objects, viz: specific performance, partition, discovery, removal of clouds, dispossession, account of rents, prevention of multiplicity of suits.

1. In specific performance no one is a proper party who is not or was not a privy to the contract, or who did not hold or acquire under parties to the contract. Pom. on Sp. Perf. sec. 483; Fry on Sp. Perf. p. 79; 3 M. & Cr. 63, 69; 6 Hale, 155; 4 Porter, 374; 15 Ala. 271; 36 N.Y. 561; 8 Wall. 571; 8 Wheat. 290; 14 Fla. 53; 17 N.J.Eq. 255; 17 N.Y. 125; 20 How. 94; 39 Cal. 294; 113 U.S. 555; 73 Md. 289; 65 N.C. 34.

2. Partition cannot be made a substitute for ejectment. 47 Ark. 238; 40 id. 155; 44 id. 338; 59 N.Y. 430; 19 Wend. 367; 5 Den. 385; 2 Paige, 387; 29 Wis. 333; 23 Wall. 466; 17 A. 627; 40 Wis. 579; 16 Fla. 26; 85 N.Y. 434; 84 Ala. 70; 37 F. 273.

3. Bills of discovery abolished. Mansf. Dig. sec. 4921; Sedg. & W. Trial of Titles to Land, secs. 168-9, 170-1.

4. Equity cannot relieve against a cloud, unless complainant is in possession, or the land wild, unimproved and unoccupied. 19 Ark. 141; 23 id. 761; 24 id. 438; 27 id. 233, 95, 417, 680, 158; 29 id. 616; 30 id. 585; 37 id. 645; 39 id. 202; 43 id. 32; 44 id. 436; 116 Mass. 558; 86 Ill. 313; 67 Ala. 103; 1 Bibb (Ky.), 67; 110 U.S. 21; 20 F. 339; 11 N.W. 807; 105 U.S. 189.

5. Ejectment the only remedy against adverse claimant. Mansf. Dig. secs. 2624-5-6-7; 41 Ark. 466.

6. Upon recovery in ejectment plaintiff is entitled to rents and profits. 31 Ark. 344.

7. Multiplicity of suits. See Pom. Eq. Jur. sec. 251; 34 F. 826; 5 Johns. 278; Dicey on Parties, pp. 515, 508; 32 Ark. 305, 508; 7 Wendell, 158; Sedg. & Wait. Tr. Tit. secs. 239, 240; 24 How. 277; Mansf. Dig. secs. 2525-6.

8. The bill is multifarious. Story, Eq. Pl. 271, 272; 96 U.S. 341; Barb. Parties in Eq. 493; Story, Eq. Pl. sec. 284 b.; 1 Dan. Ch. Pl. & Pr. p. 339, c. 6, sec. 4.

9. Complainants barred by laches. 124 U.S. 188; 120 U.S. 387-8; 17 Wall. 336; 6 S.W. 449 and notes; 50 Ark. 141.

W. L. Terry and T. E. Gibbon for Pulaski County; Morris M. Cohn for the city of Little Rock, and Ratcliffe & Fletcher for Scruggs, Ennis & Co., cite additional authorities.

Sanders & Watkins in reply.

1. The American doctrine is that all persons interested should be made parties. Mansf. Dig. secs. 4948 et seq.; 37 Ark. 517; 33 id. 240; 11 id. 120; 3 id. 364; 116 Mass. 90; 4 Minn. 145; 11 Mich. 17; 9 Iowa 98; 23 Mo. 423; 39 Cal. 297; 4 Hun, 108; 4 Peters, 202.

2. Six out of the seven objections made by appellees to the bill are well recognized heads of equity jurisdiction.

3. A court of equity is the proper forum in which to recover against, a railway company for land taken without right. 51 Ark. 258.

4. The right of a party holding an equitable title to bring ejectment is fully discussed in 36 Ark. 461.

5. There was no misjoinder. Story, Eq. Pl. pp. 87, 88, 89; Pom. Sp. Perf., p. 545-6; Pom. Rem. p. 383; Pom. Eq. Jur. sec. 114, 242.

OPINION

JOHN B. JONES, Sp. J.

Roswell Beebe and Chester Ashley entered the lands upon which a portion of the city of Little Rock stands. The title was placed in the name of Beebe, under a written contract that he held one-half in trust for Ashley, Beebe laid out the lands into lots and blocks, and divided and conveyed all except the irregular strip along the river front now in controversy. This was not laid out or divided, but the title remained in Beebe at his death.

The heirs of Ashley filed a complaint in equity against the heirs of Beebe, alleging that they held the title to one-half the land in trust for them and refused to convey, that neither they nor the heirs of Beebe were in possession; and prayed for specific performance and for partition.

The City of Little Rock, St. Louis, Iron Mountain & Southern Ry. Co., Pulaski County, Athletic Association, Pulaski Gas Light Co., Charles F. Martin, Scruggs, Ennis & Co., Neimeyer & Darragh and George H. Meade were also made defendants. The complaint alleged that the City of Little Rock, without right or title, put the other parties in possession of separate portions of the land, and that they are in possession under some kind of written title made by the city. That defendant railway company, without right or authority, took possession of and appropriated a strip of land through the entire tract, and laid its tracks thereon, and is operating its roads over it. Plaintiffs pray that the claims of these defendants be decreed void, as clouds on the title, and that they be decreed to deliver up possession of the land.

The heirs of Beebe answered, substantially admitting the allegations of the complaint, and made their answer a cross-complaint. The city of Little Rock and others alleged to be in possession filed separate motions to dismiss the complaint and cross-complaint for misjoinder and for multifariousness, and demurred on the ground the complaint did not state facts sufficient to constitute a cause of action. No judgment was rendered on the demurrer, but the chancellor dismissed the complaint and cross-complaint on the motions.

The complaint stated a good cause of action against the heirs of Beebe. Were the other defendants properly joined? Did the complaint state facts sufficient to give a court of equity jurisdiction to try the title under which these defendants claimed possession?

A party in possession, claiming title adverse, is entitled to have his claim tried at law by jury. Sec. 7, art. 2, constitution 1874; Govan v. Jackson, 32 Ark. 553. "The distinction between law and equity is constitutional, to the extent to which the 7th amendment forbids any infringement of the right of trial by jury, as fixed by the common law." The right of trial by jury extends to all cases in which legal rights are to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized and equitable remedies administered. Root v. Railway Co., 105 U.S. 189, 26 L.Ed. 975; Parsons v. Bedford, 3 Peters 433.

Many States have adopted what is known as the Reformed Procedure, abolishing the distinction between law and equity. There is much conflict of judicial opinion as to the jurisdiction conferred on courts of equity by such legislation. Some authorities relied on by counsel are from such States. A complete amalgamation of law and equity is impossible so long as the jury trial is retained. Pomeroy's Equity Jurisprudence, sec. 116. The distinction between the two systems of procedure is expressly preserved by our code. Mansfield's Digest, secs. 4918, 4919. The jurisdiction of our courts of equity is practically the same as that of the Federal courts, and the High Court of Chancery of England. Our code simply abolished forms and established liberal rights of amending defective pleadings.

Counsel for appellants urge that, the action being for specific performance, all persons claiming an interest in the land should be made parties to it. "In a bill for specific performance one who claims adversely to the vendor cannot be made a party for the purpose of having his claim settled by decree, so as to be binding on him in relation to his claim of title." Lange v. Jones, 32 Va. 192, 5 Leigh 192; Willard v. Tayloe, 75 U.S. 557, 8 Wall. 557, 19 L.Ed. 501.

In specific performance, as in other causes of equity jurisdiction, an adverse claimant in possession cannot be made a party, unless his claim be in some manner connected with the plaintiff's equity or with the title of the vendor in the contract. A court of equity has no more power to deprive an adverse claimant in possession of the right of trial by jury in an action for specific performance than in other equitable actions. In each case to which our attention has been called where jurisdiction to try an adverse claim has been sustained, the claim has been under a party to the contract, or in privity with the title of the vendor. The language used in Seager v. Burns, 4 Minn. 141, approaches nearer the contention of appellants than any other case we have examined. But the facts show the adverse claim there was under a judgment against the vendor. So the case comes within the rule.

It is contended that, appellants' title being equitable, they have no remedy at law, and before they could procure the legal title through a court of equity the statute of limitations will cut off their remedy; that while they have a present right, it will be lost if they are forced to wait to procure a legal title, and that therefore equity will furnish a remedy. The heirs of Beebe could bring ejectment. It is not alleged they have refused to do so, nor refused to allow their names in such suit. No excuse is shown for delay in applying to a court of equity for the legal title, till the statute of limitations will have run before they can procure a decree.

The plaintiff cannot, for the reason only that his title is equitable, force an adversary claimant into a court of equity, when facts are not stated to connect the adverse claim with plaintiff's equity. The plaintiff cannot deprive the adverse claimant...