Edgell v. Clarke

• Decision Date: 04 April 1898
• Citation: 23 So. 358,76 Miss. 66
• Court: Mississippi Supreme Court
• Parties: GEORGE S. EDGELL ET AL. v. FABIUS M. CLARKE

23 So. 358

76 Miss. 66

GEORGE S. EDGELL ET AL. v. FABIUS M. CLARKE

Supreme Court of Mississippi

April 4, 1898

March 1898

FROM the chancery court, first district, Coahoma county HON. A. H LONGINO, Chancellor.

The appellants, George S. Edgell and others, were the complainants in the court below, the appellee, Fabius M Clarke, was defendant in said court. The facts are stated in the opinion of the court.

Decree affirmed.

Miller Smith & Hirsh, for appellants.

Mr Pomeroy, in his work on Equity Jurisprudence, sec. 1398, states what is the accepted doctrine of courts of equity in this day and time in regard to the jurisdiction invoked by appellants: "The jurisdiction of courts of equity to remove clouds from title is well settled, the relief being granted on the principle quia timet--that is, that the deed, or other instruments or proceedings constituting the cloud, may be used to injuriously or vexatiously embarrass or affect the plaintiff's title."

In the case of Carlisle v. Tindall, 49 Miss. 233, the supreme court of this state adopts the doctrine laid down by Mr. Pomeroy, and uses this language: "The enlarged jurisdiction conferred by the statute (code of 1871, § 975), upon the chancery court, at the suit of the real owner, to remove the cloud, doubt, or suspicion caused by the deed or other evidence of title upon the true title, must be considered in the light and by the aid of the doctrine of a court of equity as applied to such quia timet bills."

The court will notice that there is but slight difference between § 975 of the code of 1871 and § 500 of annotated code of 1892.

The case of Hall v. Winston, 5 Allen's Mass. Rep., we think, has an important bearing upon the case now under consideration. In that case, as here, the objection was urged that the complainant had a plain and adequate remedy at law, the complainant being the assignee of an insolvent debtor, who was the owner of a reversion of real estate. The answer to the objection is that the estate of the insolvent being a reversion, no action at law can be brought to try the title. The levy of the defendant is a cloud upon the title which may seriously impair the value of the estate which it is the plaintiff's duty to sell, and he is entitled to the aid of the court to remove it. So in this case, it is the duty of Mr. Edgell to sell this property at the very first opportunity he can find which will enable him to realize a fair value of the same, in order to administer the trust; but with this levy of an attachment on the property it would be impossible for him to sell it. Therefore he is entitled to the aid of this court to remove the cloud from the title and thereby enable him to sell the property at the earliest possible moment.

In the case of O'Hare v. Downing, 130 Mass. 16, it was held that a court of chancery will restrain by injunction a threatened levy of execution on real estate which is not legally subject to such a levy, and thus prevent a cloud upon the title, without compelling the owners of the land to wait until the levy has been completed and then submit to be disseized in order to maintain a writ of entry.

In the case of Irvin et al. v. Lewis, 50 Miss. 363, it was contended that a court of chancery had no jurisdiction by its restraining process to prevent the sale of property under execution, the remedy at law being adequate; in other words, the complainants must wait until an actual sale took place, because, non constat that the plaintiff in execution would carry out his levy and make sale.

In the case of Pettit v. Shephard, 5 Paige's Chancery Reports, 501, the court held "that a court of chancery could interpose by injunction and prevent the giving of a conveyance under tho pretense of right, which would operate as a cloud upon the title of the real estate." In the notes to this case, in the Co-operative Edition of the New York Chancery Reports, 3 vol., tip page, 492, will be found the following language: "In modern times courts of equity have administered relief and arrested the commission of anticipated injuries by a bill quia timet. The application by bill quia timet is addressed to the sound discretion of the court under the circumstances of the particular case, and relief will be ordinarily afforded when injuries may be reasonably apprehended." Citing Watson v. Wigginton, 28 W.Va., 533; Scot v. Onderdonk, 14 N.Y. 9; Guy v. Hermance, 5 Cal. 73; Dean v. Madison, 9 Wis., 402; Lewen v. Stone, 3 Ala. 485; Commercial Ins. Co. v. McLoon, 14 Allen, 351.

In subheading in this same note, of "Suit to prevent cloud being cast on title, " the following language is used: "A court of chancery has jurisdiction to set aside the conveyance which is a cloud upon the complainant's title, and may, also, interpose to prevent the giving of a conveyance, under pretense of right, which would operate to embarrass the title to real estate. It may, in a proper case, interpose to prevent an illegal act from which such cloud must necessarily arise, " citing, Brooklyn v. Meserole, 26 Wendell, 138; Oakley v. Williamsburg, 6 Paige, 262; Hare v. Carnell, 39 Ark., 196; Ottowa v. Walker, 21 Ill. 625; Thomas v. Sain, 35 Mich. 155.

In the same note, under the head of "Remedy by Injunction " this is laid down: "A sale of lands under execution which would confer no title, and whose only effect would be to cloud the title of others, will be enjoined. The court will enjoin the casting of a cloud upon the title in cases where the cloud itself, if cast, would be...