Opinion
07-17-1896
ZURBRUGG v. REED et al.
Joseph H. Gaskill and William C. Mayne, for complainant. Walter A. Barrows, for defendant.
Bill by Theophilus Zurbrugg against Nathan S. Reed and Charles T. Colloday to compel defendant Reed to execute a deed confirming complainant's title to certain land, to set aside a mortgage on the land from Reed to Colloday, and to enjoin an ejectment suit by defendant Reed against Carl Seiler, tenant in possession. Decree canceling the mortgage, and granting the injunction, without prejudice.
For prior report, see 28 Atl. 264.
The bill states: That on June 19, 1894, Zurbrugg, the complainant, purchased and had conveyed to him by certain devisees of Samuel Bechtold, Jr., their interest in a certain tract of land in Riverside, N. J. That a certain Carl Seiler was then in possession of said tract, as a tenant of his grantors. That Nathan S. Reed, one of the defendants, had on March 15, 1894, begun an action of ejectment against said Seiler, which suit is now pending. That complainant is informed that said Reed claims title to said tract of land in the following manner, viz.: That one William A. Barnes recovered a judgment against Samuel Bechtold, Jr., in his lifetime, namely, on August 5, 1861; that under an execution Issued upon said judgment the said property was sold by the sheriff of Burlington county, and was purchased by Wallace Lippincott; that on June 17, 1872, Lippincott sold the same property to Mary A. Rood, who died leaving a will in which she devised the same to the said Nathan S. Reed. The bill charges that no valid levy was made upon the said property, nor was the same property advertised by the sheriff. It also charges that Wallace Lippincott, when he purchased the same, was one of the executors of Samuel Bechtold (Nathan S. Reed being the other), and that Lippincott purchased the same for the protection of the Bechtold estate; that he conveyed the same to Mary A. Reed by mistake, supposing that he was making a conveyance to Catherine Bechtold, the widow of said Samuel Bechtold. The bill sets out, also, that in another suit in this court, wherein Henry Bechtold and others, devisees of Samuel Bechtold, Jr., were complainants, and Nathan S. Reed was a defendant, a decree was made on February 11, 1892, that all the land of which Samuel Bechtold, Jr., died seised, and which had been conveyed to Lippincott or Reed, was held in trust by them for the devisees and legatees under the will of said Samuel Bechtold, Jr. The bill charges also that Reed on May 2, 1892, made a mortgage upon said land to one Charles T. Colloday to secure the payment of $1,500, and that said mortgage was made without consideration. The prayer of the bill is that Nathan S. Reed may be decreed to be a trustee of this land for the benefit of the grantors of the complainant, and that he may be decreed to execute a deed, confirming their deed, to the complainant; also, that the mortgage to Colloday may be set aside, as given without consideration, and as being a fraud upon complainant's grantors; also, that the action of ejectment brought by Reed against Seiler, the tenant, may be enjoined. Nathan S. Reed has answered. Colloday has not. In his answer, Reed insists that his title was derived from the sheriff's sale to Lippincott, and Lippincott's conveyance to his-wife, and his wife's devise to him is a valid conveyance. He also relies upon a 20-years possession of the land by his wife and himself. He also insists that Carl Seiler is a trespasser; that the mortgage to Colloday was given for good consideration, and to secure an indebtedness owing by Reed to the said Colloday.
Joseph H. Gaskill and William C. Mayne, for complainant.
Walter A. Barrows, for defendant.
REED, V. C. (after stating the facts). On the hearing the record of the former suit mentioned in the bill was offered in evidence. This suit was brought by certain of the legatees and devisees of Samuel Bechtold, Jr., against Lippincott and Reed, the executors of the estate of Samuel Bechtold, Jr., deceased, for the purpose, among others, of annulling all deeds made by Lippincott to Mary A. Reed. In that suit a decree was made to the following effect: That the said Nathan S. Reed be, and he is, adjudged to hold such title to said premises (the premises now in question) as trustee for the said complainants; and he is ordered, adjudged, and decreed to convey whatever title in or to the same hemay hold as aforesaid to them (the complainants), as devisees under the will of the said Samuel Bechtold, Jr., deceased. The complainants in that suit were the grantors to Zurbrugg, the complainant in this. Reed is the defendant in both suits. The first suit was commenced in 1889. The present complainant, as the assignee of the complainant in the preceding suit, is a privy in estate, whose privity has arisen since the beginning of that suit, and so he and Reed in the present suit are bound by the decree made in the former litigation. The person who purchases property, real or personal, is entitled to all the benefits, and subject to all the disadvantages, which, by the operation of the final adjudication, had attached to the property in the bands of the former owner. Freem. Judgm. 2. Again, the decree in the former case conveys a legal title to the present complainant's grantors. Revision, p. 115, § 03. By estoppel, therefore, the title passes to the complainant, by force of the deed made to him by such grantors. I am unable, therefore, to perceive the necessity of a decree in this case that Reed shall make a deed confirming the title conveyed to the complainant by his grantors. Besides, those grantors are not parties to this suit, and without them it would be improper to compel a confirmatory deed from Reed to Zurbrugg of property, the legal title to which the former decree vests in the devisees of Bechtold.
Next, in respect to the Colloday mortgage. The evidence makes it entirely clear to my mind that it has been paid. But, inasmuch as this ground for declaring said mortgage a nullity was not stated in the bill, it may be necessary to amend the bill before a decree of cancellation upon this ground can be made. But it seems also to have been given to secure an antecedent debt, and therefore Colloday was not a purchaser for valuable consideration, and his mortgage was not good against the cestuis que trustent of Reed, the mortgagor. This ground is within the charging part of the bill. The mortgage should be decreed to be canceled.
In respect to the injunction against the prosecution of the action in ejectment, I think St should be made perpetual. It is true that Reed still has a legal title to a two-seventeenths interest in the demised property. One-seventeenth he got by the will of Samuel Bechtold, Jr., and the other one-seventeenth he got by the will of his wife, to whom this one-seventeenth interest had been devised by Bechtold. So Reed was at the time that he instituted the suit of ejectment, aside from the conveyance made to him by his wife, a co-tenant with the other devisees of Bechtold, he owning two-seventeenths, and they owning fifteen-seventeenths, interest in the property. It is also true that one tenant in common can bring an action of ejectment against another tenant in common, or the tenant of the other tenants in common, whenever there has been an actual ouster of the plaintiff in the action. But this action was not brought upon this ground. The bill charges that it was brought by Mr. Reed as the owner of the fee in severalty, by force of the deed to him from his wife. In his answer he insists upon his right in severalty by force of this deed. Now, at the time the action in ejectment was brought such legal title was in him. The intervention of a court of equity was sought because the law courts could take no notice of the equitable title in the other devisees of Bechtold, which had passed to Zurbrugg. In that suit, looking at the right of Reed as it existed at its commencement, he would be, at law, entitled to recover. It was upon this ground that the preliminary injunction went. It was to await the final determination of the court of equity as to whether the title of Reed was a legal or an equitable title. The court has now decided, and has stripped him of his legal title, and has transferred such title to the devisees of Bechtold, and through them, by their deed, to the present complainant. It would be, therefore, inequitable to permit Reed to set up against the tenant of Zurbrugg, in that action, the legal title which he possessed at its commencement. I think it would be also inequitable to permit him to shift the ground in that action from his original claim to a present claim that he had been ousted from his right to a general possession by Zurbrugg or his tenant. The action will be enjoined, without prejudice to his right of bringing another if he chooses.