Root v. Woolworth

after stating the case, delivered the opinion of the court.

*410 It is not necessary to notice or consider separately the numerous assignments of error presented by the appellant. They may be reduced to the following propositions: (1) That the.court had no jurisdiction to entertain the bill, because it is in the nature of an ejectment bill, and that there, is a full and adequate remedy at law ; (2) that there was fraud on the part of Morton and his attorney in obtaining the former decree of 1873 by concealing the fact that Morton, before the beginning of his suit against defendant, had transferred •the premises to his brother, William S. T. Morton ; (3) that there was such defective description of the premises, in the Morton suit and the original decree, as rendered that decree inoperative to vest the title of the land in controversy; and (4) the defendant’s adverse possession of the property.

In support of the assignments of error covered by the first .proposition, it is urged on behalf of appellant that the suit should be treated and regarded as an ejectment bill to recover the possession of real estate, such as á court of equity cannot entertain in favor of a party holding a legal title like that which the complainant asserts. It is undoubtedly true that a court of equity will not ordinarily entertain a bill solely for the purpose of establishing the title of a party to real estate, or for the recovery of possession thereof, as these objects can generally be accomplished by an action of ejectment at law. Hipp v. Babin, 19 How. 271; Lewis v. Cocks, 23 Wall. 466; Ellis v. Davis, 109 U. S. 485 ; Killian v. Ebbinghaus, 110 U. S. 568; Fussell Gregg, 113 U. S. 550, 554.

If the bill in the present ease could be properly considered as an ejectment bill, the objection taken thereto by the defendant would be fatal to the proceeding; but instead of being a bill of this character it is clearly a supplemental and ancillary bill; such as the court had jurisdiction to entertain. Shields v. Thomas, 18 How. 253, 262; Thompson v. Maxwell, 95 U. S. 391, 399 ; Story’s Eq. Plead. §§ 335, 338, 339, 429.

It is well settled that a court of equity has jurisdiction to carry into effect its own orders, decrees, and judgments, which remain unte versed, when the subject-matter and the parties- *411 are the same in both proceedings.- The general rule upon the subject is thus stated in Story’s Equity Pleading, (9th ed.,) § 338:

“A supplemental bill may also be filed; as well after as before a decree; and the bill, if after a decree, may be either in aid of the decree, that it may be carried fully into execution ; or that proper directions may be giv.en upon some matter omitted in the original bill, or not put in issue by it, or by the defence made to it; or to bring forward parties before1 the-court, or it 'may be used to impeach the decree, -which is the peculiar case of a supplemental bill, in the nature of a bill of review, of which .we shall treat hereafter.. But where a supplemental bill is brought in aid of a decree, it is -merely to carry out and to give fuller effect to that decree, and not to obtain relief of a different kind on a different principle; the latter being the province of a supplementary bill in the nature of a bill of review, which cannot be filed without the leave of the court.”

Under this principle Morton could undoubtedly have brought the bill to carry into effect the decree rendered in his favor against Boot, and it is equally clear that his assignee, or' privy in estate, has a right to the same relief that Morton could have asserted. On this subject it is stated in Story’s Equity Pleading, § 429: “ Sometimes such a bill is exhibited by a person wdio was not a party, or wrho does not claim under any-party to the original dewee; but who claims in a similar interest, or who is unable to entertain the determination of his own rights, till the decree is carried into execution. Or it may be brought by or against any person el aiming as assignee of a party to the decree” ■ The appellee in the present case occupies -that position, and he should not, any more than Morton, to whose rights he has succeeded, be put to the necessity of instituting an original or independent suit against Boot, and relitigate the same questions which were involved in the former proceeding..

The jurisdiction of courts of equity to interfere and effectuate their own decrees by injunctions or writs of assistance in order, to avoid the relitigation of questions once settled be *412 tween the same parties, is well settled. Story’s Eq. Jur. § 959; Kershaw v. Thompson, 4 Johns. Ch. 609, 612; Schenck v. Conover, 13 N. J. Eq. (2 Beasley) 220; Buffum’s case, 13 N. H. 14; Shepherd v. Towgood, Tur. & Rus. 379; Davis v. Bluck, 6 Beav. 393, In Kershaw v. Thompson, the authorities' are fully reviewed by Chancellor Kent, and need not be reexamined here.

It is said, however, on behalf of the appellant, that the ■original decree only undertook to remove the cloud upon, the title,' and did not deal with. the subject of possession of the premises, and that the present bill, in seeking to have possession delivered up, proposes to deal with what was not concluded by the former decree. This is manifestly a misconception of the force of the original decree, which established and concluded Morton’s title as against -.any claim of the' appellant, and thereby necessarily included and carried with ■it the right of possession to the - premises as effectually as if the defendant had himself convejmd the same, The decree in its legal effect? and operation entitled Morton to. the possession of the property, and that right passed to the appellee as privy in estate.

In Montgomery v. Tutt, 11 California, 190, there was a decree of sale, which did not require or provide for the delivery of possession of the premises to the purchaser. Subsequently the defendant refused to surrender possession, and a wriu.of assistance was sought by the purchaser, to' place him in possession of the premises under the master’s deed. Field, J., delivering the opinion of the court, said :

“The power of the court to issue the judicial writ, or to make the order and enforce the same by a writ of .assistance, rests upon'the obvious principle that the power of the court to afford a remedy must be coextensive with its jurisdiction over the subject-matter. .Where the court possesses jurisdiction to .make a decree,.it possesses the power to enforce its execution. It is true that in the present case the decree does not contain a direction that the possession' of the premises be delivered to the purchaser. It is usual to insert a clause to that effect, but it is not essential. It is necessarily implied in the direc *413 tioa for the sale and execution of' a deed. The title held by the mortgagor passes under the decree to the purchaser upon the consummation of the sale by the master’s or sheriff’s' deed. As against all the parties to the suit, the title is gone; and, as the right to the possession, as against them, follows the title, it Avould be a useless and vexatious course to require the purchaser to obtain such possession by another suit. Such is not the eourse of procedure adopted by a court of equity. When that court adjudges a title to either real or personal property, to be in one as against another, it enforces its judgment by giving the énjoyment of the right to the party in Avhose favor it has been decided.”

The principle thus laid doAvn is directly applicable to the present case-.

The bill being ancillary to the original proceeding of Morton against Root, and supplementary to the decree rendered therein, can be. maintained Avithout reference to the citizenship or residence of the parties. There is consequently no. force in the objection that the court beloAV had no jurisdiction in this case because the appellee and the appellant Avere both citizens-.of Nebraska. Krippendorf v. Hyde, 110 U. S. 276; Pacific Railroad v. Missouri Pacific Railway, 111 U. S. 505.

It is next contended on the part of the appellant that the decree sought to be carried into execution is void because there- Avas fraud .on the part of Morton in .concealing from the court the fact that he had transferred the premises in . August,' 1869, to his brother, William S. T. Morton. That' conveyance, as set up in the answer, Avas duly recorded in the register’s office of Douglas County prior to the filing of Morton’s bill against the .appellant. It is not shoAvn in the ansAver Avhy the appellant did not avail himself in the former trial of this transfer .of Avhich he had constructive notice. Nor does it appear from any averments in the ansAver,-or from the.proofs, that his rights were in 'any Avay prejudiced or affected thereby. He Avas not prevented by that transfer from exhibiting fully his- OAvn case, or setting up his superior title to the premises, Avhich Avas the subject-matter of tbe'contest between Morton and himself*

*414 The appellant- could not by a direct proceeding have impeached the former decree for this alleged fraud, because, even if it were sufficient to invalidate that decree, he shows no.reason why it was -not interposed or set up in the former suit. The facts set up in the answer relating to the conveyance of 1889 from Morton to his brother do not, of themselves, constitute such a fraud as Avould be sufficient to vacate the decree in a direct proceeding to impeach it, and' certainly it cannot be collaterally attacked in. an answer, as the appellant has sought to do, after such a lapse of time, and Avith no valid excuse given for the delay. Hammond v. Hopkins, 143 U. S. 224.

But aside from this objection to this defence, it is clearly established by the proof in the cause that, before Morton instituted his suit against . Boot, a Avriting Avas executed between himself and his brother, William S. T. Morton, Avhich operated to vacate the conveyance of August, 1869, and to revest the title to the property in OliA'er P. Morton, so that there Avas -actually no lack of ■ title to the premises in Oliver P. Morton at the date of the .institution of his suit against Boot. The objection interposed by .the defendant, therefore, is clearly wanting in any force or merit.

In respect to the next position assumed by the defendant, that the description of the property Avas so defective as not to vest Morton Avith any title to the premises in controversy, it is .sufficient to say that the same point Avas set. up in the former suit, but Avas overruled, because the testimony given by survejmrs clearly established that the omission of the Avord . east from the second call of the description in no Avay affected the identification of the property, and that by reversing the calls the word east Avould be necessarily included in-the description. The same testimony, in substance, Avas introduced in this case, and established that the description in the sheriff’s deed to Morton fully identified the land in question.

As to the remaining contention, that the appellant had been in adverse possession of the premises since 1869, it appears from the proof in the cause that he did not reenter or taBe *415 possession thereof until 1888. The statute of limitations, therefore, does not constitute any bar to the complainant’s right.to maintain the bill. But .aside from this, the appellant stands in the samo position now that ho did in the former suit, when it was decreed that he had no right, title, or interest in the property. If, since that decree, he has enclosed a part of the land, cut wood from it, or cultivated it, he would be treated and considered'as holding it in subordination to the title of Morton and his privy in estate, until he gave notice that his holding was adverse, and in tho assertion of actual-ownership in himself. In his position he could not have asserted adverse possession after the decree against him, without bringing express notice to Morton or his vendees that he was claiming adversely. Without such notice the length of time intervening between the decree and the institution of the present suit would give him no better right than he previously possessed; and- his holding possession would, under the authorities, be treated as in subordination to the title of the real owner. This is a well established rule. Jackson v. Bowen, 1 Wend. 341; Burhans v. Van Zandt, 7 Barb. 91; Ronan v. Meyer, 84 Indiana, 390 ; Jeffery v. Hursh, 45 Michigan, 59; Jackson v. Sternbergh, 1 Johns. Cas. 153; Doyle v. Mellen, 15 R. I. 523; Zeller's Lessee v. Eckert, 4 How. 289.

We are of opinion that the decree below was clearly correct, and should be Affirmed,.