Blackwood v. Van Vleet

• Decision Date: 12 May 1863
• Court: Michigan Supreme Court
• Parties: Robert Blackwood v. Peter P. Van Vleet

11 Mich. 252

Robert Blackwood v. Peter P. Van Vleet

Supreme Court of Michigan

May 12, 1863

Heard April 29, 1863 [Syllabus Material]

Appeal in Chancery from Lenawee Circuit.

Blackwood who was assignee of a mortgage given in 1837 by one Miller and to foreclose which he had brought suit in equity, filed his bill in this cause, setting forth that defendant was in possession of the lands mortgaged, claiming title thereto under deeds from the Auditor-General given on sales for delinquent taxes of 1849 and 1854, and that he threatened to commit waste thereon by cutting off the timber. The bill alleged the invalidity of the tax titles, prayed for an injunction to restrain waste, and that the deeds from the Auditor-General be set aside, and decreed void and of none effect.

Defendant demurred to the bill; the court below sustained the demurrer and dismissed the bill, and complainant appealed.

Decree dismissing the bill for want of equity affirmed, with costs.

A. L. Millard, for complainant:

The relief sought by the bill is two-fold:

1. To have the tax deeds set aside and canceled; and,

2. To restrain the defendant, by injunction, from cutting timber on the mortgaged premises.

It is insisted that complainant has a remedy at law: 1. By action of ejectment; and, 2. By prohibition of waste under the statute: 2 Comp. L., p. 1259. We reply: The action of ejectment is not an adequate remedy. The complainant is not the owner of the land. Though the legal title has become vested in him by the mortgage, yet he is in equity only an incumbrancer, and has no interest in the land except to make the money that is due him out of it, by process of foreclosure, in the shortest and easiest way that the law will admit. A mere recovery of the possession, by ejectment would not accomplish this.

1. He wants the tax deeds canceled, as forming a cloud on his title which is likely now to constitute an obstacle to his making the money by a foreclosure, and is liable to make him trouble hereafter, when the evidence of the illegality of the tax proceedings is lost. This he could not get by ejectment.

2. A recovery in ejectment would not be conclusive. It would not become so until after two or three trials, and the lapse of three or five years: Comp. L., § 4590.

Thus the time required to obtain possession by ejectment, and especially to settle the title, would be far too long to be of any avail in the foreclosure. It would not remove the obstacle in time for that, and the complainant would either be obliged to delay the sale under the foreclosure, for all that time, or to sell under the disadvantage of the cloud upon the title.

3. He wants an injunction to restrain the defendant from impairing the value of his security by cutting timber. Ejectment would give him no remedy against the commission of waste in the meantime. That would require a separate proceeding under the statute.

It is easy to see, therefore, that, practically, the remedy at law would be far from being full and perfect.

It is not necessary that a party should be in possession of the land, to entitle him to file such a hill: Yancy v. Hopkins, 1 Munf. 419; Shell v. Martin, 19 Ark. 139; Gillett v. Webster, 15 Ohio 623; Chautauque Co. Bank v. White, 6 Barb. 589.

Though there may be a remedy at law, yet if that remedy be doubtful or difficult, equity will hold jurisdiction: 1 Paige 90.

The danger of waste, charged in the bill, entitles the complainant to the interposition of a court of equity. An injunction is the appropriate remedy, not only between mortgagee and mortgagor, or those having privity of estate, but as to those holding adverse claims, and even against trespassers, in cases of irreparable mischief: Brady v. Waldron, 2 Johns. Ch., 148; 2 Story Eq. Juris., 918; 2 Wat. Eden on Injune., 3d ed., 200 (note), 229-235 and notes.

The complainant, never having had possession of the land, could not maintain trespass for cutting timber; and if he could maintain that or any other form of action, it would make another suit, and perhaps a multiplicity of others necessary. This necessity for several suits at law would itself constitute a...