Opinion · New York Court of Appeals

Savage v. . Allen

54 N.Y. 458

Type: Opinion
Court: New York Court of Appeals
Jurisdiction: New York
Date: 1873-09-05
Topic: general

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 461 This action was brought to restrain the defendant from prosecuting in the Superior Court of the city of New York an action of ejectment to recover the possession of certain land in that city, the title to which is in dispute between the parties. The plaintiff prevailed before the *Page 463 referee, but the Supreme Court dismissed the complaint, and from the judgment entered therein this appeal is taken. In any possible view which can be taken of this case, the judgment appealed from must be affirmed. If the defendant had title to, and was entitled to the possession of the property, to recover which the action was brought in the Superior Court, then it is very clear that this action cannot be maintained.

Citator

Cited by: 29 opinions

SAVAGEv. ALLEN,54 N.Y. 458(1873)

JOSEPH W. SAVAGE, Appellant,v. JOSEPHINE ALLEN, Respondent.

Court of Appeals of the State of New York.

Argued March 17, 1873

Decided September term, 1873

Page 459

W. Howard Waitfor the appellant.Page 460

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]Page 461

William Henry Arnouxfor the respondent.Page 462

REYNOLDS, C.

This action was brought to restrain the defendant from prosecuting in the Superior Court of the city of New York an action of ejectment to recover the possession of certain land in that city, the title to which is in dispute between the parties. The plaintiff prevailed before thePage 463referee, but the Supreme Court dismissed the complaint, and from the judgment entered therein this appeal is taken.

In any possible view which can be taken of this case, the judgment appealed from must be affirmed. If the defendant had title to, and was entitled to the possession of the property, to recover which the action was brought in the Superior Court, then it is very clear that this action cannot be maintained. If, on the contrary, the plaintiff had any defence to the action, legal or equitable, it might have been interposed, and, if made out, the plaintiff therein would have been defeated. The proposition that a separate action may, under our present system, be maintained to restrain by injunction the proceedings in another suit, in the same or in another court, between the same parties, where the relief sought in the later suit may be obtained by a proper defence to the former one, has long since been exploded, or, if not, should be without delay. (Sheehanv.Hamilton,2 Keyes, 304;Winfieldv.Bacon,24 Barb., 154;Schellv.Erie R. Co.,51 id., 368;Dobsonv.Pearce,12 N.Y., 156-165;Cummingsv.Morris,25 id., 625;Pitcherv.Hennessey,48 id., 415-422.)

It is said that a party having a good equitable defence to an action of ejectment is not absolutely bound to interpose it, but is at liberty to resort to some form of remedy by way of injunction in another suit. If this be admitted for the sake of argument, it must be remembered that the remedy by injunction rests very largely in the discretion of the court, and that judicial discretion would not probably be exercised where a party had, in some other form, abundant means for the protection of his rights, which, without excuse, he neglected to assert. The remedy by injunction is supposed to be an extraordinary one, to be resorted to, as a general rule, only where an injury, without adequate redress, may result if the writ be not employed, and this does not appear to me to be any such case.

While we are entirely clear that the plaintiff cannot prevail upon the question of practice and form of proceeding,Page 464we have looked into the case to see if there was any substantial merit in the plaintiff's claim, and we find none to induce us to disturb the judgment given in the court below. The land in controversy was a part of the estate of Francis Child, who, by his will made in 1826, devised this lot with others to his widow for life, with the remainder to his children and grandchildren. He died, leaving his widow, Mary Child, and three daughters, Jane, Caroline and Josephine. Jane married Stephen Reed and died without issue. Caroline married the plaintiff in this action and left two children. Josephine, about the year 1844, married Henry L. Parsons, and died intestate in 1847, leaving the present defendant, her only child, surviving. This condition of things vested the defendant with all the interest of her mother in the estate of Francis Child, which, of course, was subject to the life estate of her grandmother, Mary Child, and the estate, by the courtesy of her father, Henry L. Parsons, who is now dead. In the year 1840 Mary Child commenced proceedings in the Court of Chancery for the partition of the estate of Francis Child, which resulted in a decree awarding the lot in controversy to the mother of the defendant, and the defendant, upon the death of the mother, succeeded to all her rights in the premises. In March, 1847, Reed and wife filed in chancery a bill of review against Mary Child and all parties in interest, including the present plaintiff and his two children, the defendant and her father. The present plaintiff duly answered in that suit, and the defendant being then an infant answered by her guardianad litem. The result of that suit was that, in December, 1848, it was decreed that all the proceedings and judgment in the prior partition suit should be vacated and held for naught.

After the filing of the bill of review, as before stated, and in the year 1847, Henry L. Parsons, as the special guardian of the defendant, petitioned the Supreme Court that the lot of land in question be sold, and the proceeds applied to the use of the defendant, and this proceeding resulted in the conveyance by Henry L. Parsons, on the 29th of October, 1847,Page 465of the lot in dispute to Mary Child, who on the 30th of March, 1848, conveyed it to the plaintiff. This appears to have been the first connection of the plaintiff with this particular lot, and it was, of course, taken with full knowledge of the object of the bill of review, for all concerned in the sale of the interest of the defendant were parties to that proceeding. It is scarcely necessary to add that, when the decree vacated the judgment in the prior partition, the plaintiff's title to the particular lot in dispute was invisible; and that he was bound by the proceeding and estopped by the judgment is beyond any question. Thereafter, and in April, 1849, Reed and wife brought a second proceeding by petition in the Supreme Court for the partition of the estate of Francis Child, including all the premises embraced in the first ineffectual partition, and, of course, lot No. 32, being that in controversy. The present plaintiff was made a party to that proceeding; was personally served with the petition and papers, and made default. The result was that judgment in partition was ordered, by which the premises sought to be recovered by the plaintiff were set off to the defendant.

In this condition of things, in April, 1851, the defendant brought an ejectment against the present plaintiff, who was in actual possession, and, thereafter, the plaintiff commenced this suit to restrain the prosecution of the ejectment in the Superior Court. We have already seen that, in point of mere practice, the proceeding cannot be maintained, and we think it equally clear that the plaintiff, by the several decrees and judgments to which he was a party, is forever estopped from any claim of title to the premises in dispute. He made no claim to the property in the second proceeding for partition, as he might have done, if any he had, and he must acquiesce in the determination that awarded the defendant the title.

The judgment appealed from must be affirmed, with costs.

All concur.

Judgment affirmed.Page 466

REYNOLDS, C.

We ordered, at the last term, an affirmance of the judgment in this case upon two grounds, one that the plaintiff had misconceived his remedy, and the other that he was estopped by a judgment in a proceeding in partition, to which he was a party, from asserting title to the property in dispute. It is now claimed that we were wrong on both the grounds stated, but more especially so in respect to the question of estoppel. It might, perhaps, have been as well to have rested our judgment upon the proposition first suggested, and left the question of the estoppel to be considered in the Superior Court of the city of New York, without any intimation of our opinion upon that question, if the plaintiff should regard any further proceedings in that court necessary to the protection of his rights. It is very certain that the decree, made upon the bill of review by Reed and wife against the plaintiff and other parties, to annul the first partition which he unsuccessfully defended, was conclusive upon him, and that its result divested him of all title he had apparently acquired, by the deed of Mary Child, to lot No. 32. In the proceedings for the second partition he was made a party, and he was a proper party if he had any interest whatever in the premises; and it is provided by statute that, if any person interested in the premises, or having any claim by which he may become interested at any future time, has not been made a party to the proceedings, he may, notwithstanding, be permitted to appear and answer as a defendant by leave of the court. (2 R.S., 319, § 15.) So that he was a proper party, whether he had any present interest in the property or any claim by which he might in the future become interested. Upon the question of estoppel we are unable to see any difference, whether the partition is by an ordinary suit or by a proceeding on petition at law, as originally provided for in the revised statutes, which, in this case, was finally adopted. Proceedings in either form, if properly conducted, wouldPage 467ordinarily conclude all rights of parties which might properly be the subject of consideration in the suit or proceeding.

We did not fail to observe that the plaintiff did, in the proceedings on bill of review, resist the setting aside of the first partition. This he did and was unsuccessful, and the decree in that suit put an end to all his title to lot No. 32, as is now admitted, and it is also urged, as a reason why he did not set up any claim to it in the last partition, that he in fact had no title to the lot, but that he had an equity to compel the defendant to convey the lot to him if it should, in the last partition (as it was), be set off to her in severalty. It seems sufficient to say that, if he had no title to the lot, no amount of alleged estoppel by judgment could do him any harm, and I think we had the impression that the supposed estoppel prevailed only as to the legal title. It may, indeed, be that any equities he is supposed to have, which could arise against the defendant only after the final decree in partition had been pronounced, would not be concluded by the record of that judgment, and, if it now be assumed that such is the exact condition of the plaintiff's right, it makes it only the more certain that he should have interposed, as he might, that affirmative defence in the action of ejectment brought against him, and demanded the relief to which he supposed himself entitled, and it furnishes a more satisfactory reason why our judgment, previously rendered, should not be disturbed.

The circumstance that a party to an ejectment suit may, within a limited period, upon payment of costs, have a new trial as a matter of course, has not the remotest influence upon the present question so far as we can discover.

The motion must be denied, with ten dollars costs.

All concur.

Motion denied.Page 468