Welde v. Scotten

Irving, J., delivered the opinion of the Court. This is an appeal from an order of the Circuit Court for Cecil County perpetually enjoining the appellant Welde, the judgment creditor, and George H. Logan, (the other appellant,) sheriff, having the execution in hand, from selling certain land claimed and possessed by the appellee, William Scotten, alienee of the judgment debtor. The bill charges, that the complainant is seized, in fee, of certain real estate described in the deed, (filed as an exhibit,) from Hugh E. Scarborough, to complainant, dated the 25th day of March, 1880, which was duly executed and recorded; and, that in virtue of that deed, he is legally and equitably possessed of, and entitled to, every part of the described premises, and all rights and privileges belonging thereto; that Samuel L. Welde had obtained a judgment, ⁷⁵ on the 5th of June, 1880, in the Circuit Court for Harford County against the same Hugh E. Scarborough, and that designing to injure and defraud the complainant, he had issued a fieri facias on that judgment, and had it directed to George H. Logan, sheriff of Cecil County, and the same had been levied upon the lands which the complainant had purchased of Hugh E. Scarborough, the defendant in the judgment, and that the lands were advertised for sale, notwithstanding Welde and the sheriff both knew that the complainant is entitled to the lands; that Welde pretends there is some latent defect in the complainant’s title to him unknown, and sometimes falsely pretends that complainant did not pay a full and fair consideration for the lands, and is not a bona fide purchaser thereof, and that Scarborough still has some right or interest therein, the contrary of which complainant avers to he true. He then claims this to he a cloud on his title, which impairs its value, and does him irreparable injury; and prays for an injunction restraining the proposed sale under the execution.

The answer of the appellant, which is on oath, admits that he obtained judgment on the 5th day of June, 1880, as charged; and that fieri facias has issued thereon, and has been levied, as’alleged; hut avers, that the indebtedness or cause of action on which judgment was obtained, existed long prior to March, 1880, the action having been commenced thereon at the June term of Cecil County Court, 1819. It further avers that the complainant well knew of the defendant’s claim long before his purchase of Scarborough, and that it was for the purpose of delaying, hindering and defrauding his creditors, and others, that Scarborough was anxious to sell his real estate which Scotten (complainant) alleges he purchased; that Scarborough conceived the idea of selling for the purpose of defrauding the appellant of the fruits of the judgment he might obtain; and that the pretended sale to the com ⁷⁶ plainant was not bona fide and for valuable consideration; but was done for the purpose of covering up Scarborough’s property from the just claim of the respondent. It appears from the record and proof that the verdict and judgment recovered by appellant against Scarborough were for personal injuries for which an action of trespass was instituted as set out in the answer. Preliminary to the inquiry whether the injunction complained of was justifiably granted, we should premise, that it is the settled, law of this State that the Statute of Elizabeth is sufficiently comprehensive in its terms to embrace, and does embrace, not only creditors technically so, but “all others who have cause of action or suit, or any penalty or forfeiture, and embraces actions of slander, trespass and other torts.” Gebhart vs. Merfield & Kemper, 51 Md., 325 .

The appellant Welde, therefore, has a judgment against Scarborough, for such a cause of action, as justifies his attacking any conveyance of Scarborough made pending the suit, in some form, as fraudulently made and executed against him, if he has cause to so suppose; and the real question for us to decide is, should he be prevented, by injunction, from putting himself into such position, that he may have the question of the bona fides of the appellee’s purchase tested in a Court of law, and before a jury, through, an action of ejectment. We are all of opinion that he ought not, and that it was error in the Circuit Court to hold otherwise. Nothing is better settled in this State than that the granting or refusing an injunction, rests in the sound discretion of a Court of equity, and is not a matter of absolute right; nor will equity interpose by such an extraordinary remedy if the law will afford adequate relief. It must be conceded that there is much conflict of authority to be found in the decisions of the several States of the country, as to when a Court of equity ought to interfere, either by way of removing a cloud already existing, ⁷⁷ or of preventing a cloud being cast on the title, as it is alleged is sought to be done in this case.

There can be no doubt that it is within the province of a Court of equity upon a proper case made, to interpose, by way of accomplishing precautionary justice, and preventing a wrong; and the power is often exercised. Numerous cases are to be found, where Courts of equity have interfered by injunction, to.prevent a sale about to be made, lest it should unwarrantably cloud the complainant’s title; and without close examination they would seem to sustain interference here for the protection of the appellee ; but after the most careful examination of every case cited in argument, and also of those cited in the text books referred to, and after diligent search, we have been unable to find a single case exactly analogous to this where injunction has been granted. In none of the cases where the remedy has been allowed, as far as we have been able to find, has the applicant alleged, as he has done here, that the other party charged him with fraud in the procurement of his title, to his prejudice. We have, however, found sundry cases, where the object of the judgment creditor was to put himself in position. as purchaser under the execution, to test, at law, through ejectment, the validity of another’s title which he deemed fraudulent, in which the Courts refused to grant the writ, and left, the question to be litigated at law.

In Bockes vs. Lansing, 74 N. Y., 441 , the action was to remove a cloud upon plaintiff’s title: “ The plaintiff’s title is founded upon the assignment in trust from George Webster to David Russell, executed and recorded in September 1846, and the conveyance by Russell, the assignee, to Simeon Webster under whom the plaintiff claims. The defendant claims under a sale by a receiver appointed in proceedings against George Webster, founded on a judgment recovered against him in October, 1846. This receiver’s sale and the deeds from him on their ⁷⁸ face did not transfer any title as against the plaintiff, being proceedings against the plaintiff’s grantor subsequent to the conveyance from him under which the plaintiff claims.” The Court says, “those claiming under the receiver’s sale could not establish any title without first overthrowing the plaintiff’s title by extrinsic evidence that the assignment made by George Webster, was fraudulent and void. In such a case, an action of this description cannot he maintained.

It is only where there is an instrument or proceeding which on its face purports to create or convey a title paramount to that of the party seeking relief, or an incumbrance thereon, that an action will lie to set aside such instrument or proceeding as a cloud upon the plaintiff’s title.” In this opinion seven of nine judges concurred, the others being absent. It may he, that in the last sentence we have quoted, the law is stated more broadly than we should adopt, or are called on to adopt in this case; hut to the principle, that the party alleging the fraud should be left to assert his claim in a forum where he can have a jury trial, we unhesitatingly assent. Freeman vs. Elmendorf and others, 3 Halsted’s Chancery Reports, 475, is singularly like this case, and precisely “in point.” In that case, Elmendorf recovered a judgment against Matthew Freeman, February, 1841, and issued a fieri facias which was levied on a farm and house and lots as the property of the judgment debtor. Robert Freeman, a son of the judgment debtor, for himself, and as guardian to his infant children, filed a bill in equity alleging, that several years anterior to the judgment rendered, the property had been conveyed to him by deed of bargain and sale, and that he had conveyed the same to his infant children, and asked injunction to restrain the sale under the fieri facias upon the judgment.

Preliminary injunction was granted upon the showing of the hill, as was done in the case now before us. An answer was filed denying the bona fides of the deeds ⁷⁹ under which the complainant claimed, and stating facts tending to show the same were fraudulently made; and denying the validity of the deeds as against the judgment for that reason. Upon a motion to dissolve, the Chancellor decided that the case was a proper one for a law Court, and that the judgment creditor should he permitted to proceed to sell under his execution, that the question of bona fides might be tried under an action of ejectment. The Court said that the