Harrall v. Gray

• Decision Date: 19 March 1880
• Citation: 4 N.W. 1040,10 Neb. 186
• Parties: CHARLES HARRAL AND GEORGE P. UHL, PLAINTIFFS IN ERROR, v. ELI GRAY, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

4 N.W. 1040

10 Neb. 186

CHARLES HARRAL AND GEORGE P. UHL, PLAINTIFFS IN ERROR, v. ELI GRAY, DEFENDANT IN ERROR

Supreme Court of Nebraska

March 19, 1880

ERROR to the district court of Richardson county. Tried below before WEAVER, J.

AFFIRMED.

Uhl & Scott, for plaintiff in error.

Schoenheit & Thomas, for defendant in error.

OPINION

COBB J.

This is an action to remove a cloud from the plaintiff's title to a tract of land. The cloud consists of an attachment levied on the land, and a judgment rendered against one Allen Gaskill, plaintiff's grantor, and a sheriff's deed made to one of the defendants on a sale upon execution issued on the said judgment. The deed from Allen Gaskill to the plaintiff was executed the fifteenth December, 1874, in Cumberland county, Illinois, acknowledged before a notary public. The land was attached the twenty-seventh January, 1875. Deed recorded May 27, 1875. The sheriff's deed to defendant, George P. Uhl, was recorded September 19, 1877.

There is a great deal in the record of this case on either side which tends to obscure rather than illuminate the points in the case as I understand them. The plaintiffs in error contend that the petition sets forth a cause of action at law, and not a case for equitable relief. That, as I view it, depends upon the object which the plaintiff (defendant in error) seeks to accomplish by the action, or rather, the main facts being sufficient on which to found either an action of ejectment or an equitable or quia timet action, and there being much in the petition which ought not to be there for either purpose, we may look to the prayer for a key to the true character of the action.

The prayer of the petition does not include the possession of the land, nor does the decree which it is sought to reverse affect the possession of the land in any manner whatever. So this is not an action of ejectment, because although the plaintiff may obtain all that he seeks in this action, then, unless the defendant Harrall voluntarily relinquishes the possession, it will require an action of ejectment to dispossess him. Again, were this an action of ejectment, while, if the defendant's possession is fraudulent, that could probably be shown in such action so as to disarm the defense and enable the plaintiff to obtain the possession, yet it would not remove the muniments of such fraudulent title; and so, to render his title clear and marketable, the plaintiff would still have to bring a suit in equity, and go over the same ground which he has covered in this case.

I have no doubt of the power of a court of chancery, independent of our statute, to entertain jurisdiction of a cause brought to set aside a fraudulent conveyance constituting a cloud upon the plaintiff's title to real estate owned by him, though not in his actual possession. Bunce v. Gallagher, 5 Blatchf. 481. Ward v. Dewey, 16 N.Y. 519. But were this even doubted it would be set at rest by the statute. Gen. Stat., p. 882.

This, then, being a proper case for equitable jurisdiction, the defendants were not entitled to two trials, nor to a general jury trial, and the several questions of fact were properly submitted to the jury, and I think fairly submitted by the court, and that there is evidence to sustain each of such findings.

In the district court the defendants (plaintiffs in error) moved to strike out a portion of the plaintiff's petition, for several stated reasons. While there can be no doubt that there was much in the petition that ought not to have been there, and ought to have been stricken out, yet I do not think that the redundant matter was such as to render...