Buxton v. Broadway

Park, C. J.

If the petitioner could compel the respondent to prosecute to final judgment the suit he has commenced on the note in question, then it might be said with truth that he has adequate remedy at law for the grievances set forth in his bill. But the petitioner has no such power over the respondent or the suit; neither does the law furnish him any means of acquiring it. The suit is under the entire control of the respondent, who may withdraw it at any time before the verdict of a jury or a finding of the facts by the court; and, abiding his time, he may take an unconscionable advantage of the petitioner when his witnesses are dead or have been scattered to parts unknown, or when the facts with regard to the fraud shall have faded from their memory. The note has seventeen years of life from its date; and if it be true, as is set forth in the bill, that it was obtained from the petitioner by fraud, it may well be expected that the respondent will use all the means in his power to prevent the petitioner from exposing its character on the day of trial; and to this end he will take all the advantage to be gained by delay to accomplish his purpose. It is clear therefore that we cannot take into account the fact that there is a suit at law now *542 pending between the parties in determining whether the petitioner’s remedy at law is “obvious, adequate and complete.” Church, J., in Chipman v. City of Hartford, 21 Conn., 488 . On that question we can consider only what means of redress the law itself furnishes the petitioner, and not what he may chance to get through the indulgence of the respondent. In the case of Ferguson v. Fisk, 28 Conn., 501 , which was a suit in chancery to compel the respondent to cancel and deliver up a draft, the consideration of which had entirely failed, a suit at law, brought to recover the amount of the draft, was at the time pending between the parties. Still Judge Sanford, in giving the opinion of the court, regarded the fact of no importance, and dismissed it with the remark that the suit might at any time be withdrawn by the respondent and another brought at his convenience. The fact of the pend-ency of the suit at law in the present case, though strenuously urged upon us in the argument, we lay out of our consideration, in view of the fact that it may be withdrawn by the respondent at his pleasure, and another brought at a time when an unconscionable advantage may be taken of the petitioner.

If the note in question showed upon its face the fraud alleged in the bill, so that however late a suit might be brought the petitioner could not be deprived of his defense, it might with some propriety be said that the petitioner has adequate remedy at law. Judge Story, in the second volume of his Equity Jurisprudence, § 700 a, says: — “Where the illegality of the agreement, deed or other instrument appears upon the face of it, so that its nullity can admit of no doubt, the same reason for the interference of courts of equity to direct it to be canceled or delivered up would not seem to apply; for in such a case there can be no danger that the lapse of time may deprive the party of his full means of defense.” It would seem to follow that if the illegality did not appear upon the face of the instrument, courts of equity would interfere and order a cancellation of it. Indeed, in section 700 of the same volume the author says: — “If an instrument ought not to be used or enforced, it- is against *543 conscience for the party holding it to retain it, since he can only retain it for some sinister purpose. If it is a negotiable instrument, it may be used for a fraudulent or improper pu"= pose, to the injury of a third person. * * If it is a mere written agreement, solemn or otherwise, still, while it exists, it is always liable to be applied to improper purposes; and it may be vexatiously litigated at a distance of time when the proper evidence to repel the claim may have been lost or obscured; or when the other party may be disabled from contesting its validity with as much ability and force as he can contest it at the present moment.” This language applies with peculiar force to the case in hand; for no one will say that the petitioner will be as able to prove the allegations in his bill ten years hence as he is to-day. The burden of proving the fraud would be on the petitioner at whatever distance of time a suit might be brought; lienee the petitioner would lose and the respondent would gain by delay. The same author, in section 695 of the same volume, in classifying the cases in which courts of equity will interfere and order the cancellation of instruments, places cases of the character of the present one in the first class. He says: — “First, where there is actual fraud in the party defendant, in which the party plaintiff has not participated.” The bill charges the respondent with actual fraud in procuring the note in question of the petitioner. Hence the case comes clearly within this class.

The case of Ferguson v. Fish, before referred to, does not differ in principle from the present one, but substantially controls it. That was a case where the consideration for giving the draft had entirely failed. This is a case of fraud in procuring the note. The draft in that case was negotiable, but past due. The note in this case is non-negotiable. A decree of cancellation was passed in that case, and one should be in this, if the allegations in the bill shall be proved true.

We advise the Superior Court that the bill is sufficient.

In this opinion the other judges concurredj except Carpenter, J., who dissented.