Smith v. Austin

Christiancy J.:

Does the bill show such title or interest of the complainant in the mortgaged premises as entitles him to the relief asked? This is the only question presented by the demurrer.

As the facts stated in the bill are somewhat numerous and complicated, and a full abstract of the bill and exhibits will accompany the report, I do not deem it necessary to incorporate such abstract in the opinion, but, for the sake of brevity, shall proceed directly to the main question, the bearing of which will be fully rmderstood by reference to the bill.

The bill is essentially a bill for the redemption of certain lands, from the encumbrance of two mortgages (the prior one executed by William A. Howard, Rollin C. *474 Smith and Alfred A. Dwight, to defendant Austin, November 10th, 1853, the latter by Howard, then averred to be owner, to Almet Reed, March 5th, 1855, and assigned to defendant Roswell Reed). The bill claims that these mortgages have been satisfied by complainant, and even over paid, in the manner stated in the bill; but, if any balance shall be found still due, he offers to pay it, and if found to be overpaid, he asks a decree in his favor for the excess. To enforce his right of redemption is, however, the chief end and aim of the bill, and the substantial relief sought. The account asked from Warner, the trustee, must be considered as mainly auxiliary to this relief, as a means of showing what has been paid or should be applied upon the mortgages, and the consequent balance; and the right to call for the account as against Warner, is so far dependent upon, or connected with the right of redemption, as against Austin and Reed, that no useful purposes could be subserved by sustaining the bill as one solely for an account, nor by 'enforcing the account under the present bill, unless a proper case is made for redemption. And every other species of particular relief sought by the bill is auxiliary or incidental to, or dependent upon, the right to redeem.

So far, therefore, as the question raised by the demurrer is involved, the bill may be treated as a bill of redemption only.

If the complainant has shown no title or interest in the premises, he has shown no right to be protected by the redemption; and a court of equity will not lend its aid to enforce his right, as a volunteer, to pay off a mortgage on the lands of another, nor subrogate him to the rights of a mortgagee under a mortgage thus paid by him. But the interest required, as the basis of a right to redeem, need not be the fee subject to the mortgage, or the whole of the mortgagor’s original equity of redemption (except in some .cases of a statute redemption thus limited). *475 -Any person who may have acquired any interest in the premises, legal or equitable, by operation of law or otherwise, in privity of title with the mortgagor, may redeem, and protect such interest in the land: Story Eq. Juris. § 1023. But it must be an interest in the land, and it must be derived in some way, mediate or immediate, from or through, or in the right of the mortgagor; so as, in effect, to constitute a part of the mortgagor’s original equity of redemption. Otherwise it can not be affected -by the mortgage, and needs no redemption.

But whatever may be the title or interest claimed, it •must, in some way, appear on the face of the bill, and the nature and extent of it must be set forth: and, if the bill be not brought by ■ the mortgagor, it must be shown how complainant became entitled to it; unless the •bill distinctly sets up some special matter of estoppel, and expressly relies upon it as such.

When a bill for redemption is brought by the mortgagor himself, both parties claim under the same title: the mortgagee, by the acceptance of the mortgage and his claim under it, and all claiming under him, by the fact of such claim, conclusively admit an interest in the mortgagor sufficient for redemption; as their own claim under the mortgage rests upon such interest, which they cannot claim and deny at the same time (though they might, perhaps, under special circumstances show that interest to be less than the mortgagor claimed to convey by the mortgage). But if the bill be brought by any other person than the mortgagor, the title or interest claimed must be derived, immediately or remotely, through the mort. -gagor, or in some way spring out of his general equity of redemption; and the principles applicable to the statement of a derivative title or interest in pleading must apply to. the statement of such title or interest in the bill.

It is a well settled rule of pleading at common law, ■that a party claiming under a derivative title must show *476 how that title is derived. Thus, in an action by the heir of a lessor, the death of the ancestor and the descent to. the plaintiff, as heir, must be shown; and it must appear how he is heir — whether as son or otherwise — and if he claims by mediate and not immediate descent, he must show the pedigree; for example, if he claim as nephew, he must show how he is nephew. And when the plaintiff' claims as asignee of the reversion by lease and release, or other conveyance, the nature and operative part of the conveyance must be set forth. In an action brought by the assignee of a term, all the mesne assignments down, to himself should be specifically stated; for he being privy to them, shall not be allowed to plead generally that the estate of the lessee of and in the demised premises Game-to him by assignment. But when the action is brought against the assignee, this general form of stating the defendants interest is sufficient; because the plaintiff is a stranger to the defendant’s title: — A Chit. Pl. 402, 396, 397. This is not a technical rule, but is founded in good sense, and essential to the rights of parties. It is upon principle equally applicable in equity as at law, and as well recognized there ; and it applies to all derivative titles, whether of the fee, or of a less estate or interest: —1 Dan. Ch. Pr. 369 to 371; Story Eq. Pl. §258 and note: and see §241. The defendant has a right to be informed of the nature and derivation of the title or interest claimed, that he may, by his answer, admit or deny it, and be prepared to meet it in evidence, or refer the question of its suffi. ciency to the court by demurrer. The court, and not the complainant, is to judge of its sufficiency. If the title or interest be properly set forth, it may appear to the court that, what the complainant claims as constituting such title or interest, constitutes no title or interest at all; and the parties are saved the expense of all further proceedings. The fi cts constituting the complainant’s title are supposed, when the bill shows nothing to the contrary, to be pecu *477 liaiiy within his own knowledge, and the defendant a 'stranger to them. The complainant is not to he supposed to state his case in the way least advantageous to himself; and if the facts constituting his case are such as not •to he susceptible of statement in a manner which would show a valid title or interest, the court may safely take it for granted he will notj be more successful with the proof.

In such cases, therefore, at least when the question'*' arises upon demurrer, any ambiguity or uncertainty of lan.guage should be construed most strongly against the complainant.

To apply these principles to the present case: the only statement on the face of the- bill of complainant’s title or -interest in the mortgaged premises, and that upon which •the bill bases his right to redeem, is in these words: '“And your orator further shows that afterwards” [after the execution of the two mortgages] “on the first day of November, 1856, your orator became and was interested ■in said real estate by contract, and then and there and for a long time thereafter was, and continued to be in actual possession of all of said premises, and that while your orator was so in possession of said premises, claiming and holding the same,” Reed filed his bill, &e.

It would be difficult to contrive a more indefinite statement of an interest than this, or one which would give less information of its nature to the defendants or the court. So far from describing the contract, or stating its purport or substance, so as to allow the court to judge whether it created any interest in the land, ’ it does not -even mention the parties by or between whom it was made, nor a single stipulation it contained. It may have ■been a contract between two parties or ten. If it gave •comjfiainant an interest in the land, it may have been a joint interest with several others who wouldjbe necessary parties to this bill. The contract may have been upon a *478 condition, precedent which, complainant has never performed* or the interest created by it defeasible upon condition suIk sequent, and defeated before the institution of this suit. It may have been such that, by allowing complainant to. redeem after permitting Reed’s foreclosure bill to be taken as confessed, and the rights of others, which he ought to-protect, to be cut off, would operate as a fraud upon them* Or, what is equally probable, though the contract may-have related to the land, and in the opinion of complainant created an interest in real estate, it might, in the opinion of the court, have created no such interest. . If' it be said that these are gratuitous suppositions not proved by any thing found in the bill, I reply that they are not more gratuitous than complainant’s assertion of an abstract interest, under a contract alleged as an abstraction, and. of which neither the nature, the parties, nor a single stipulation is set forth or described in the bill. If a complainant presents and claims under a blank contract, the court or-the opposite party is just as much at liberty to fill the blanks as he is; and there is just as much proof for either of the suppositions above suggested as for complainant’s assertion, that he became interested in the land by contract. It is no where alleged in the bill that he went into possession under it, nor even that he claimed or continued in the possession under it. The statement of complainant’s right in the premises would have been quite as strong-had he relied upon a nakedfpossession, or at least a bare possession with a claim of title. But this would not be. sufficient as a basis for redemption. The possession might be tortious, and both possession and claim might be under-a title not in privity with the mortgagor, but hostile or paramount, and which could not therefore be affected by the mortgage.

But uncertain as the interest of the complainant is, this, mode of stating it raises a clear, if not a conclusive inference that he had not and did not claim to have the fee, *479 or the whole of the mortgagor’s original equity of redemption. If he had, it would have been quite as easy and much more natural to have said so in plain and unambiguous terms than to have taken this circuitous mode of saying what, when said, amounts to nothing of the kind. It could- never occur to counsel to state a fee, or general equity of redemption, in such a formula of words. It is therefore certain that he intended to claim by this language some interest less than the general equity of redemption, and therefore that he did not claim as a purchaser within the ordinary import of the term, but, as I think, some incomplete or inchoate right or interest; some interest, in fact, which did not amount to any definite estate or title known to the law, or it might have been readily described in the bill by its fixed and well defined legal term.

It is therefore, I think, very clear that the matter of the complainant’s interest in the lands, is not, so far as it depends upon the allegation alluded to, well pleaded, and that, upon demurrer, the bill must be treated as if this allegation had been entirely left out. The demurrer admits only facts well pleaded, and must therefore be held to be well taken, unless there be something in the exhibits (for there is not a word in the bill) to supply the defect.

But it is insisted by the counsel for the complainant, that this defect is supplied by the recitals in the exhibits B and C referred to, and prayed to be made a part of the bill, both dated December 28, 185V, the former being, in the language of the bill, a “covenant or declaration of trust” made by complainant to defendant, Warner, and the latter an instrument executed by Reed, by which he refers and assents to the former, and agrees, on certain conditions, to extend the time of payment of his mortgage.

It is evident that neither of these instruments, nor both combined, could have been intended as the contract by means of which he “became interested in said real estate by contract;” because, 1st. they were executed more than *480 a year after the time when he alleges he became thus interested; and secondly, because neither of these instruments purports to give any interest in the lands whatever, and the bill alleges that to Warner to have been made “to protect and secure the rights” of complainant “in said premises.” This, upon any fair construction, must be understood as referring to the right already claimed, the “interest by contract.”

But admitting the bill to have properly averred an interest in the land, and that such interest had been admitted by Warner, Austin or Reed, the language of the instrument would hardly prove such interest or such admission. It merely recites by way of inducement, that “whereas the premises so mortgaged are now claimed by Simeon Smith subject to and after the execution of a certain trust deed” (probably meaning the execution of the trusts) “made by cne William Warner and his wife, to one Thomas B. Rose as trustee” (to which reference is made generally as of record in the county of Sanilac, and then proceeds) “and it being provided in said trust deed to said Rose, that said Simeon Smith and his agents might manage and operate said real estate and the steam saw mill thereon with the fixtures and appurtenances thereto belonging, for the purpose amongst other things, of paying the debt secured by the said” [Austin] “mortgage hereinbefore referred ■to, and as a further security to that end, this instrument is made.”

This recital shows only that complainant claimed an interest, (which by the way is left quite as much in the dark as the aforesaid interest by contract), but the other party admits none; the language would seem to have been thus purposely guarded to avoid an admission, and there is nothing in the instrument, even less if possible than in the bill, to show whether the claim was well or ill founded.

The reference to this trust deed to Rose, so far from showing any interest of complainant, only tends to render *481 still more dubious that interest by contract which was too uncertain before. For, as it states no new interest, this “claim” must be understood as referring back to the contract interest, and this reference shows this “claim” of that uncertain interest, to be subject to this trust deed, which, in its terms, is in most particulars quite as uncertain. No date is given. The deed of trust is said to have been given by Warner; but in what capacity does not appear, nor how the title, if it conveyed any, which last appeared in Howard, in March, 1855, without showing how it got there, now at some indefinite period prior to December 28, 1857, suddenly and for an instant becomes visible ron its transit through Warner to Rose, where it finally disappears; unless complainant has again discovered it emerging from the foreclosure, and finally resting in Ayers and Learned; but without more elements for determining its orbit, its identity can hardly be relied upon. But it is uncertain whether the trust deed from Warner to Rose conveyed or assumed to convey the title subject to the mortgages, though such would be the most natural inference from the language of the reference. Nor does it appear except by inference that the deed may not have been executed prior to the Reed mortgage. This is the last we hear of Rose or his trust. We had only heard of him before as a defendant in the Reed foreclosure.

Was it this trust deed to Rose by means of which complainant “became interested in said real estate by contract ?” If allowed to grope our way by conjecture where all is uncertain, there is much to render this theory probable ; yet it would but faintly illuminate the mist in which that “interest,” and I may say the title generally, seems to be enveloped by the bill and the exhibits. The only terms of the trust deed which are intimated — and the statement from its context has somewhat the semblance of having been inserted as explanatory of the nature of the complainant’s “ claim” — show merely that complain *482 ant was to have the right to “manage and operate said real estate, for the purpose, among other things, of paying the debt secured by said” [Austin] “mortgage.” This alone could hardly constitute an interest in the real estate: the right of a mere volunteer, showing no interest in the land, to pay off the mortgage, could hardly be deemed a Valuable right; and the right to operate or work the property for such a purpose would be equally a negative interest.

Does the reference to exhibit C, asked to be taken as a part of the bill, with all its averments, give any greater aid to the bill, or supjdy the want of a proper averment of title?

This instrument was executed by Reed on the same day as exhibit B, and by way of inducement recites that “whereas, the party of the second part,” [the complainant] “ has become the purchaser of the mortgaged premises and then proceeds to describe the mortgages, the trust instrument to Warn'er, and Reed’s assent to the same, and then sets forth Reed’s agreement to give time of payment of his mortgage on condition that complainant pays the Austin mortgage according to the terms of' the trust instrument to Warner, and that he pay Reed’s mortgage in the manner and by the instalments mentioned.

Supposing it to have been competent for the complainant, by reference, to make a document a part of his bill, in such manner as to give its language the effect of a direct allegation in the bill itself, and to suj>ply the entire absence of any allegation in the bill upon the same point, without showing the effect he intended to claim for it, or the use intended to be made of it, yet giving to this paper the same effect as if its language wTere inserted verbatim in the bill — and this is the greatest effect that can be claimed for it — how will the case then stand? To say nothing of its form as mere recital, the greatest effect it could have would be an averment that he had become the purchaser (the most natural interpretation of which *483 would be that he had acquired the fee subject to the mortgages, or the general equity of redemption of the mortgagors') without showing how, when, or from whom,, or whether by one conveyance or through several, or the date, parties or purport of any instrument or conveyance through which he claimed to have derived it. But we have already seen that the rules applicable to the state-, ment of a derivative title apply to the statement of complainant’s title, as it must be derived from the originad equity of redemption. He must therefore show, upon his bill, how that title is derived; each of the conveyances must be brought specifically to the notice of the opposite party and the court, according to the well settled rules-of equity pleading. Though the nature of the interest is more specific as recited in exhibit C, yet the same rules-of pleading apply to the mode of its acquisition as to the “interest by contract” mentioned in the bill, and these rules need no further explanation here. Whether a man has become a purchaser is -a mixed question of law and fact, as much as, whether he has obtained an interest by contract. The execution and delivery of the instrument is a question of fact; its effect a question of law.

There is still another difficulty to be noticed. This, exhibit C was executed by Reed alone; and however Reed may be affected by it, or Warner, as his trustee, by receiving money under it, I can see no ground on which it could affect Austin, either as matter of pleading or as-evidence, unless it operated to transfer to complainant an interest in the mortgaged premises, in which case, if this-interest were properly alleged in the bill, it might show a basis for complainant’s right to redeem. But complainant does not claim to derive his interest in the land by or through this instrument, nor does it purport to create or-convey an interest, nor is it referred to in the bill for-any such purpose. Both the bill and the exhibit go upon the assumption that he was already interested by some *484 other’ means and in [some other way; though they do not agree as to what that interest was. This instrument, therefore, is entirely outside of any claim of title by which complainant’s interest could have been acquired, and was executed long after he claims to have acquired it. It therefore neither gave any new interest in the land, nor increased or diminished any interest he mky already have had. The admission, therefore, that complainant had become the purchaser, could only operate, even upon Reed (and perhaps Warner) in one of two ways : either as an estoppel, or as mere evidence: and it is entirely unnecessary here to determine which, since in either view, to give it any effect in favor of complainant on demurrer, there must be some allegation in the bill to be supported by it; or, at least, the general nature of the case made by the bill, and the ground upon which the bill has based his claim, must be clearly consistent with it.

The demurrer was, I think, well taken. But as, from other parts of the bill, it seems quite probable complainant may have strong equities, and upon a bill properly drawn might be able to show a sufficient interest in the land, he should be allowed to amend on payment of costs; and he should be allowed to add other parties, should he deem it essential; and the cause should be remitted to the Circuit Court in Chancery for further proceedings.

It not unfrequently happens, that the ablest counsel may be driven by some emergency in the affairs of his client, or some real or supposed necessity for immediate action, to prepare a bill without sufficient opportunity for investigation of the facts or the law, and without access to all the documents which may be material to the case. The defects in the present bill lead to the supposition that such may1 have been the case with the able counsel who •is understood to have prepared it.

The other Justices concurred.