Langdon v. Templeton

• Decision Date: 24 May 1889
• Citation: 17 A. 839,61 Vt. 119
• Parties: JAMES R. LANGDON v. HORATIO TEMPLETON
• Court: Vermont Supreme Court

17 A. 839

61 Vt. 119

JAMES R. LANGDON v. HORATIO TEMPLETON

Supreme Court of Vermont

May 24, 1889

GENERAL TERM, OCTOBER, 1888.

Decree reversed and cause remanded, with leave to defendant to bring forward his answer, if he shall be so advised.

Pitkin & Huse, for the orator.

OPINION

TAFT

This case was heard upon demurrer to the bill. It is alleged in the bill that, under the orator, Clogston went into possession of the lot in controversy, in the latter part of the year 1885, and has since remained in possession. Whatever the title of the defendant may be to the land, upon the facts alleged, Clogston has a full defense to the suits at law, brought by the defendant against him, at least as to the action of trespass. The gist of the action is the injury to the possession, and the general rule is, that unless at the time the injury was committed the plaintiff was in actual possession, trespass cannot be supported, and although the title may come in question, it is not essential to the action that it should. Chit. Pl 175. It was held in this State that a title to lands, without entry, does not warrant an action of trespass qua clau. against a party in actual adverse possession, for the cutting of trees upon the land; nor (semble) trespass de bonis for the wood severed from the land. Pratt v. Battels, 28 Vt. 685; Bowne v. Graham, 2 Tyl. 411.

But the orator insists that thought he can successfully defend the suits at law, he is entitled to protection against the vexatious suits instituted by the defendant against his, the plaintiff's tenant, Clogston, citing Morse v Morse, 44 Vt. 84. The doctrine here invoked is that of the second class of bills of peace, where the orator seeks to restrain the defendant from reiterating an unsuccessful claim or litigation. The object of such a bill is to secure an established legal title against the vexatious recurrence of litigation. This jurisdiction of a court of equity is now firmly established and is unquestionable. Adams' Eq. 199; Bispham's Pr. of Eq., secs. 413, 417, 418; Willard's Eq. 323 et seq. Bispham, supra, sec. 417, says: "In general, in order that a bill of peace may be maintained, the complainant must first have established his right at law." Mitford, in his Chancery Pleading (4th Am. Ed.) 146, states the rule, viz.: "Indeed, in most cases it is held that the plaintiff ought to establish his right by a determination of a court of law in his favor, before he files his bill in equity; and if he has not so done, and the right he claims has not the sanction of a long possession, and he has any means of trying the matter at law, a demurrer will hold;" the same learned author adds: "If he has not been actually interrupted or dispossessed, so that he has no opportunity of trying his right, he may bring a bill to establish it, thought he has not previously recovered in affirmance of it at law. In York v. Pilkington, 1 Atk. 282, a bill of peace of the first class was brought to quiet the title of the plaintiffs in a right of fishery, to which a demurrer was interposed. The court say: "Another cause of demurrer is that the plaintiffs have not established their title at law, and have therefore brought their bill improperly to be quieted in possession. Now it is a general rule that a man shall not come into a court of equity to establish a legal right unless he has tried his title at law, if he can, but this is not so general an objection as always to prevail, for there has...