Hitchens v. Millman
| Decision Date | 21 June 1932 |
| Citation | 18 Del.Ch. 404,162 A. 39 |
| Court | Court of Chancery of Delaware |
| Parties | DANIEL T. HITCHENS, v. SALLIE C. MILLMAN |
BILL TO CANCEL A DEED, alleged to have been executed and delivered by the complainant to the defendant. Title to the land described in the deed was in the complainant for life remainder to the defendant in fee. The deed in question purports to convey to the defendant the life interest of the complainant. The consideration was a nominal one.
The execution and acknowledgment of the deed is admitted by the complainant, but he alleges that it was never delivered.
The answer of the defendant sets up the defense first, that the deed was duly delivered, and second, that the purpose of the complainant in executing and delivering the deed was the fraudulent one of seeking to hinder and delay a creditor who was threatening to sue the complainant for damages occasioned by an assault and battery committed upon him by the complainant with a knife.
Heard on bill, answer and testimony taken orally before the Chancellor.
Bill dismissed, costs on the complainant.
James M. Tunnell and Frank M. Jones, for complainant.
Daniel J. Layton, for defendant.
A question is raised as to the jurisdiction. The solicitor for the defendant makes the point that in an action of ejectment at law, the complainant would be permitted to show that the deed was never delivered, that therefore he has a sufficient remedy at law and that as a consequence the Court of Chancery has no jurisdiction to entertain the bill. Revised Code 1915, § 3844. That the grantor in an allegedly undelivered deed may maintain ejectment against the grantee therein who is in possession and try out the issue of delivery, is shown by several cases reported in this State in which such actions have been tried without question as to their propriety as properly cognizable at law. Pennel's Lessee v. Weyant, 2 Del. 501, 2 Harr 501, 502; Doe, ex dem. Guest, v. Beeson, 7 Del. 246 2 Houst. 246; Littleton v. Johnson, 26 Del. 97, 3 Boyce 97, 81 A. 47; Smith v. May, 19 Del. 233, 3 Penne. 233, 50 A. 59; Hitchens v. Ellingsworth, 28 Del. 497, 5 Boyce 497, 94 A. 903.
At the same time, a Chancery case is reported in which a bill was entertained for the purpose of setting aside a deed solely on the ground of its non-delivery. Jamison, et al., v. Craven, Ex'r., et al., 4 Del.Ch. 311. The question of jurisdiction, however, was not raised in that case.
The defendant cites two cases in support of the proposition that a bill for cancellation of a deed on the ground that it was never delivered will be dismissed for the reason that the law affords an adequate remedy. These cases are Woodward v Woodward, 8 N.J.Eq. 127, and Pratt v. Pond, 5 Allen 59. The latter case supports the proposition in aid of which it is cited. The case from the New Jersey Equity report, however, does not seem to bear on the point, for in that case the grantee in the deed was out of possession and sought by his bill not to cancel the deed but to establish it, and, having established it, to be put in possession. The bill therefore was in substance a possessory action and the Chancellor very properly held that the complainant should be left to his remedy at law.
Hollis v. Kinney, 13 Del.Ch. 366, 120 A. 356, was a case in which it was sought to vacate a judgment entered on a forged judgment note and warrant of attorney for the confession of judgment. It was held that the bill was not demurrable on the ground of an adequate remedy at law. The opinion recognized that the law court in which the judgment was obtained would entertain an application to set the judgment aside. But this was not enough to warrant the Court of Chancery to refrain from proceeding with the bill before it, because, while there was, to be sure, a remedy at law, yet the remedy was not full and complete, there being no power in the law court to order a cancellation of the instrument on which the judgment was entered. Accordingly the demurrer was overruled.
The distinction between Hollis v. Kinney, supra, and the Massachusetts case of Pratt v. Pond, supra, lies in this --that while in both cases there was a concurrent remedy at law, yet in the former the legal remedy was not deemed to be full and complete, while in the latter it was. In his work on Equity Jurisprudence (4th Ed.) at par. 110, vol. 1, Prof. Pomeroy in commenting on the equitable remedy of rescission and cancellation, observes that the remedy is applied directly in equity, but, though in appropriate cases it is recognized at law, the beneficial results of the remedy are obtained in the legal forum only in an indirect manner. The obtaining by the complainant in this cause of a judgment in ejectment against the defendant based on the non-delivery of the deed, would be an illustration of Prof. Pomeroy's text, for the judgment in that case would be a recognition of the complainant's right to have the deed declared to be void, but the remedy securing that right would be enjoyed in only an indirect way, viz., by compelling the defendant to give up the possession. It is well to proceed further with Prof. Pomeroy's comment in a later portion of the section referred to,...
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Hughes Tool Co. v. Fawcett Publications, Inc.
...the plaintiffs full, fair and complete relief. Elster v. American Airlines, 34 Del.Ch. 94, 100 A.2d 219 (1953); Hitchens v. Millman, 18 Del.Ch. 404, 162 A. 39 (1932). A careful review of appellants' complaints convinces us that their actions are properly pursued in the Court of Chancery, th......