If, in case where the
loss of a deed or other
instrument is made the ground for coming into a court of equity for
discovery and relief, an affidavit of its loss must be made and
annexed to the bill, and the absence of such affidavit is good
cause of demurrer to the bill, yet if the party charged by the bill
failed to demur for that cause but answered over to the bill or
permitted it to be taken for confessed by default against him, it
seems that the absence of the affidavit is not a sufficient cause
for the reversal of the decree.
If a deed has not been proved, acknowledged, and recorded, and
would therefore be insufficient against subsequent purchases
without notice, parties who claim under such deed have a right to
come into a court of equity for a discovery upon the ground of
notice, and if notice should be brought home to subsequent
purchasers, the complainants have a right to relief, by a decree
quieting the title.
Where, in a bill filed for discovery and relief, the party
relied upon a deed said to have been lost, but which had never been
formally executed to convey the real estate, and upon a receipt of
the purchase money binding the party to convey the estate, the
person alleged to have executed the lost deed, and who gave the
receipt should have been made a party to the proceeding, although
he had subsequently, by a legal and formal conveyance, duly
executed, conveyed the estate to others, and thus, so far as he
could, divested himself of all title in the same.
The decree of the circuit court directed two of the defendants,
in whom was the legal title to the lot of ground claimed by the
plaintiff in the bill, to convey the same, and awarded costs
generally against all the defendants. All the defendants appealed
together to this Court, some of whom held the legal title to the
lot, and all the defendants had an interest in defending this
title, standing as they did in the relation of vendors and
warrantees
and vendees. Although the defendants, against whom there is a
decree for costs only, could not appeal from this decree for costs,
yet the reversal of the decree of the circuit court was made
general as to all of the appellants, and the whole case opened.
The appellees filed their bill in the Circuit Court of the
United States for the District of Ohio, praying a discovery and
that the defendants may convey to the complainants such a title as
they have acquired to a lot of ground in the Town of Cincinnati and
deliver up the possession acquired by them, and also that they
account for the profits, and for general relief.
The title set up by the complainants, was alleged to be derived
from a receipt given by Abraham Garrison, in whom the title to the
lot was then vested, which receipt in the following terms:
"Received, Cincinnati, 10 September, 1799, of Wm. and
Page 26 U. S. 242
Michael Jones, fifty pounds thirteen shillings and three pence,
in part of a lot opposite Mr. Conn's, in Cincinnati, for two
hundred and fifty dollars, which I will make them a warrantee deed
for the same, on or before the twentieth day this instant."
"Test, Jacob Awl Signed, ABRAHAM GARRISON"
And from a deed, executed on the following day, by which Abraham
Garrison, for the consideration of $250, conveyed the lot to
William and Michael Jones, which deed was said to have been lost by
time and accident. The lot was, by subsequent conveyances, claimed
to be vested in the complainants. No affidavit is attached to the
bill showing that the deed was not in the complainants' possession
or setting forth that it had been so lost or destroyed.
To this bill the defendants, James Findlay, Charles Vattier,
William Lytle, and Robert Ritchie, answered separately, and a
decree was entered against the other defendants for costs, the bill
having been taken
pro confesso against them, they not
having answered.
After hearing, this Court gave a decree against the defendants
who had answered, and all the defendants appealed to this
Court.
The bill, answer, exhibits, and depositions showed a case
containing many controverted facts and allegations, and the
questions of law arising upon the same were elaborately argued by
Mr. Webster and Mr. Caswell, for the appellants; and by Mr.
Dodridge and Mr. Jones, for the appellees.
The decision of this Court, by which the decree of the Circuit
Court of Ohio was reversed and the cause remanded for further
proceedings, was upon two questions of chancery practice which were
raised by the counsel for the appellants.
1. The court have decreed relief to the complainants on the bare
suggestion that the deeds once existed, which are lost, when no
affidavit is attached to the bill, showing that the deeds were not
in complainant's possession, and without such an affidavit a court
of chancery has no jurisdiction of the cause. The appellants cited
the following cases to show the error of this proceeding. Mitford's
Pl. 52, 112; 2 Pere Williams 540-541; 3 Atk. 17, 132; 4 John.Ch.
297.
2. The complainants not having shown a deed from Garrison to the
Jones', must rely upon the receipt from Garrison to the Jones' as
an equitable title; and if they claim that equitable right, they of
course must make Garrison, the elder, and the Jones', parties to
the suit. Upon this point the counsel for the appellants cited
Simms v.
Guthrie, 9 Cranch 25.
Page 26 U. S. 243
MR. JUSTICE TRIMBLE delivered the opinion of the Court.
This is a contest for lot number 86 in the City of Cincinnati.
The appellees, who were complainants in the court below, claim the
lot in right of the complainant, Belinda, as halfsister and heir at
law of Thomas Doyle, Jr., only son of Thomas Doyle, the elder.
In the year 1795, Abraham Garrison became the proprietor, and
was seized in fee of the lot in controversy.
The bill charges that on 10 September, 1799, Abraham Garrison,
being so seized, sold the lot to William and Michael Jones,
brothers, and partners in trade, for the price of $250, part of
which being paid, the said Abraham Garrison gave a receipt for the
same, binding himself to convey, which receipt is annexed, and made
part of the bill. That a few days after, the said Abraham Garrison
made a deed of conveyance, attested by two witnesses, to the Jones'
for the lot, which deed has been lost by time and accident. That on
26 March, 1800, William Jones, in behalf of the firm of William
& Michael Jones, conveyed the lot to Thomas Doyle, Jr., and
that although the intention of that conveyance was to pass the
title of both partners and is in equity good for that purpose, yet,
as it did not pass the legal title of Michael Jones, he has since,
in the year 1819, for the purpose of confirming the title of the
complainants, made a deed of confirmation to complainant, Thomas S.
Hinde.
Various other matters are stated in the bill as strengthening
and confirming the equitable right of the complainants in right of
the said Belinda, as heir at law of Thomas Doyle, Jr.
The bill charges that the defendants have fraudulently, and with
notice of the claim of Thomas Doyle, Jr., and of the complainants,
subsequently, obtained conveyances of the legal title from and
under Abraham Garrison, and seeks discovery and relief.
The defendants, James Findlay, William Lytle, Charles Vattier,
and Robert Ritchie, answered, and the bill was taken as confessed
against the other defendants for want of answer.
The answer put in issue generally the allegations of the bill
and the title of the complainants, but it is not at present
necessary to say whether they do or do not sufficiently deny
notice.
It appears from the answers and title deeds filed in the cause
that all the defendants, as well those who have not answered as
those who have, are interested in defending the title
Page 26 U. S. 244
of the lot, they standing in relation to each other as vendors,
warrantees, and vendees.
At the hearing of the cause in the circuit court, the defendants
Vattier and Ritchie were decreed to convey to the complainants, and
costs were decreed against all the defendants, and all of the
defendants have joined in the appeal to this Court.
The appellants contend that the decree is erroneous upon several
grounds, which have been very elaborately argued at the bar. Among
these, two preliminary objections have been raised to the
regularity of the proceedings and decree, and if either of them be
sustained, it will be unnecessary to consider the more important
objections made to the decree upon the merits of the conflicting
claims of the parties.
The first preliminary objection is that no affidavit of the loss
of the deed, from Garrison to the Jones' "by time and accident," as
charged in the bill, was made and annexed to the bill.
In support of this objection, the counsel for the appellants
have cited numerous authorities to prove that when the loss of a
deed or other instrument is made the ground for coming into a court
of equity for discovery and relief, an affidavit of its loss must
be made and annexed to the bill, and that the absence of such
affidavit is good cause of demurrer to the bill. But no case has
been cited and none is recollected in which it has been decided
that although the party charged failed to demur for that cause, but
answered over to the bill or permitted it to be taken for confessed
by default against him, yet the absence of the affidavit is
sufficient cause for a reversal of the decree.
If such a decided case were shown, we should exceedingly doubt
its reason and authority.
The objection appears to us to be of that character which ought
to be made at the earliest practicable stage of the cause, and if
not then made, should be considered as waived. Upon the face of the
bill there is an apparent jurisdiction, and the use of the
affidavit is only to show,
prima facie, the truth of the
matter.
It is not like the cases in which there is an apparent want of
equity on the face of the bills, admitting all the facts stated to
be true, nor like the case in which it is apparent on the face of
the bill that a court of equity could have no jurisdiction of the
matters charged. In such cases, although a demurrer will be to the
bill, yet none is necessary, inasmuch as there is either an
absolute want of equity or of jurisdiction.
We think the supposed former existence and loss of the deed from
Garrison to the Jones' was not the only ground for
Page 26 U. S. 245
appealing to a court of equity for relief. If the deed, as
stated in the bill, were produced, it, in consequence of not being
proved or acknowledged and recorded, would be insufficient as a
legal title against subsequent purchasers without notice. The
complainants had a right to a discovery, upon the ground of notice,
against the defendants, and if notice should be brought home to
them, the complainants had a right to relief by a decree quieting
the title, &c.
Again, if the complainants should fail, as we think they have
failed, to prove by competent and satisfactory evidence the former
existence, execution, and contents of a formal deed of conveyance
sufficient to pass the legal title, we perceive no reason why they
might not rely upon the executory contract contained in the
receipt, and in this latter view of the case the jurisdiction of
the court of equity is unquestionable, and a general demurrer to
the whole bill for want of an affidavit would not be sustainable.
At most, a demurrer to only so much of the bill as stated and
relied on the deed could have been maintained for want of an
affidavit of its loss.
The second preliminary objection to the proceedings and decree
is the want of proper parties.
It has been argued for the appellants that Abraham Garrison was
a necessary party, and that as the complainants claim through him
by an executory contract, he ought to have been before the court
before any decree could be made against the defendants, who also
claim through and under him by a subsequent conveyance of the legal
title.
The counsel for the appellees endeavored to overcome this
objection by arguing that the deed from Garrison to the Jones'
conveyed the title from him to them; that the contract was
therefore not executory, but executed between Garrison and the
Jones', and further, if it were not so, that there was no necessity
for bringing Garrison before the Court, he having conveyed away the
legal title to the appellants, and that therefore no decree could
be made against him.
We have already said the evidence in the cause does not
establish a formally executed conveyance from Garrison to the
Jones' sufficient to convey the legal title, and that the
complainants are therefore driven to rest their case upon the
executory contract contained in the receipt.
Under this aspect of the case, was it necessary to make Garrison
a party, to enable the Court to pronounce a decree between the
parties, really before the Court?
In the case of
Symmes vs.
Guthrie, 9 Cranch 25, this Court declared the
general rule to be that
"regularly, the claimants who have an equitable title ought to
make those whose title they assert, as well as the person for whom
they claim a
Page 26 U. S. 246
conveyance, parties to the suit. . . . And that for omitting to
do so, an original bill may be dismissed."
In the case of
Mallon v.
Hinde, 12 Wheat. 193,
25 U. S. 196,
the complainants claimed a survey in the military district in Ohio
by virtue of certain executory contracts with Elias Langham and the
heirs of Sarah Beard, and sought by their bill against Hinde to
obtain a conveyance from him of the legal title, which, it was
alleged, he had fraudulently obtained with notice of the
complainants' prior equity. Langham and the heirs of Sarah Beard
were not made defendants, and for that cause the decree was
reversed. There is no distinction in principle between that case
and this. In that case, this Court, in delivering its opinion, hold
the following language:
"For the appellees, it is insisted the proper parties are not
before the Court so as to enable the Court to decree upon the
merits of conflicting claims. And we are all of that opinion. . . .
The complainants can derive no claim in equity to the survey under
or through Langham's executory contract with the Beards unless
these contracts be such as ought to be decreed against them,
specifically, by a court of equity. . . . How can a court of equity
decide that these contracts ought to be specifically decreed
without hearing the parties to them? Such a proceeding would be
contrary to the rules which govern courts of equity and against the
principles of natural justice."
This reasoning applies with equal force to the case at bar.
Here, however perfect all the other links may be in the chain of
the complainant Belinda's equitable title to the lot in contest,
she can have no claim to it in equity but through and under the
executory contract of Garrison with the Jones'. Garrison has a
right to contest the equitable obligation of that contract. No
decree can be made for the complainants without first deciding that
the contract of Garrison ought to be specifically decreed. He might
insist the purchase money had not been paid, or make various other
defenses. It is not true that if he were made a party, no decree
could be made against him. It might not be necessary to require him
to do any act, but it would be indispensable to decide against him
the invalidity of his obligation to convey, and overrule such
defense as he might make, and if the purchase money had not been
paid, to provide by the decree for its payment before any decree
could be made against the defendants holding the legal title. We
are all of opinion that upon this second preliminary objection, the
decree of the circuit court must be
Reversed.
A question of some difficulty presents itself as to the extent
of the reversal. The decree of the circuit court directs the
defendants Ritchie and Vattier to convey certain portions of
Page 26 U. S. 247
the lot of ground and awards costs generally against all the
defendants. There is no doubt the defendants, against whom there is
only a decree for costs, could not appeal alone from the decree of
costs. But the defendants below have all appealed together, and
although some of them hold the legal title to the lot, yet they all
have an interest in defending the title, standing as they do in the
relation of vendors and warrantees and vendees. Under these
circumstances, we think the reversal should be general as to all of
the appellants, and the whole case opened. And we are the more
inclined to adopt this course because so numerous and so great have
been the irregularities in conducting the cause in the Court below
from its commencement to its termination by decree that it seems
impracticable that justice be done between the parties without
sending the cause back as to all the parties with directions that
the complainants have leave, if asked by them, to amend their bill
and make the proper parties and to proceed
de novo in the
cause from filing such amended bill.
This cause came on, &c. on consideration whereof it is the
opinion of this Court that there is error in the proceedings and
decree of said circuit court in this, that Abraham Garrison ought
to have been made a party, but was not, before a decree was made
between the parties in the cause. Whereupon it is adjudged,
decreed, and ordered that the decree of said Circuit Court for the
District of Ohio in this cause be and the same is hereby wholly
reversed, annulled, and set aside. And it is further ordered that
the cause be remanded to the court from whence it came with
instructions to permit the complainants, upon application for that
purpose, to amend their bill and to make proper parties and to
proceed
de novo in the cause from the filing of such
amended bill as law and equity may require.
