
    *Harris B. Munson vs. John D. Munson and others.
    The relief sought by a bill quia timet is not to be granted as a matter of course, upon a state of facts which show that the petitioner has reason to apprehend an injury to his title from a cloud thrown upon it, but each case must depend upon its peculiar circumstances, and addresses itself to the sound discretion of the court.
    Where the petitioner had a clear legal title, and the respondent was in possession under a deed taken from the petitioner’s grantor, some time after the petitioner’s deed, and with full knowledge of the deed, and the only circumstance creating a cloud upon the petitioner’s title was the fact that the respondent had procured his deed to be recorded before that of the petitioner, which had been left unrecorded for a considerable time under an agreement with the grantor to that effect, it was held, 1. That the petitioner had an adequate remedy at law, by an action of ejectment against the respondent. 2. That, aside from the question of the jurisdiction of a court of equity growing out of .that fact, and regarding the case as addressing itself to tlie sound discretion of the court, there was not sufficient reason for the interposition of a court of equity, and that the petitioner ought to be left to bring his action of ejectment.
    Whether a court of equity will grant relief upon such a bill in any case where the instrument or proceeding creating the cloud upon the title is void upon its face: Quere.
    
    Bill in equity, for the removal of a cloud from the petitioner’s title to certain real estate. The facts were found by a committee.
    The premises in question, on the 8th of April, 1851, were owned by Cornelius Munson, and were on that day conveyed by him to the petitioner. The consideration of the conveyance was in part an indebtedness of the grantor to the petitioner, and in part a bond given by the latter for the support of the former during the remainder of his life. The support stipulated for was afterwards furnished by the- petitioner, until the 12th of April, 1857, when the petitioner removed from the state, and the said Cornelius, under an amicable arrangement with the petitioner, left the house of the latter, where he had resided since the execution of the bond, and went to live upon the premises which he had conveyed to the petitioner. He resided there until his death, which occurred on the 6th of March, 1858. The amount expended by the petitioner in such support, and the debt *due him from the said Cornelius, [ *583 ] together considerably exceeded the value of the premises. The deed by which the premises were conveyed to the petitioner was delivered to him, but by agreement of the parties was not then to be put on record, and was not in fact recorded until the 4th day of July, 1857. The premises remained in possession of the grantor from the time of the execution of the deed until his death.
    On the 7th day of May, 1857, Noble W. Munson, one of the respondents, procured from the said Cornelius a mortgage of the premises, to secure an indebtedness of $200 for money which he had advanced for him, to pay a claim upon which the premises had a few days before been attached by a creditor of the said Cornelius. At the time of taking this mortgage he had full knowledge of the previous conveyance to the petitioner.
    In August, 1857, the other respondents, John D. Munson and Cornelius R. Munson, entered into a combination for the purpose of defrauding the petitioner and embarrassing his title. The said Noble having assigned to them his mortgage, they brought a bill for a foreclosure upon it against Cornelius Munson, the mortgagor, procured Him to accept service of the bill, had the case entered upon the docket of the court after the term had commenced, and falsely entered the name of an attorney of the court as appearing for the respondent, such attorney having no knowledge of the fact. They then represented to the court that there was an agreement between the counsel that a decree should be passed with a limitation of only eight days for redemption, and the court, relying upon this representation, without Hearing evidence as to the value of the property, granted such a decree. The premises at this time were of the value of $1,250, while the debt was but $200.
    They also, in August, 1857, with a like fraudulent intent, brought an action at law for covenant broken against the said Cornelius Munson, and by like fraudulent proceedings procured a judgment against him for an amount much beyond that to which they were entitled, which they £ *584 ] levied *on the land. The said Noble W. Munson was found to have combined with them so far as to have assigned the mortgage to them for the purpose of having it foreclosed by them.
    The petitioner, during all the time of these proceedings was living out of the state and had no knowledge of them. The said John D. and Cornelius R. went into possession of the premises upon the death of the said Cornelius, and had ever since remained in possession.
    Many other facts were found, which are omitted as having no important bearing on the result in the view of the case taken by the court. The case was reserved for the advice of this court.
    
      N. T, Buel and Webster, for the petitioner.
    1. The facts found show a clear case of fraud on the part of the respondents, by which they haye thrown a cloud on the petitioner’s title. His title is shown to have been a good one, and the respondents not only had notice of it, but intended to embarrass it by their fraudulent proceedings. In these circumstances a court of equity will grant the relief sought. 1 Sto. Eq. Jur., § 184. Phalen v. Clark, 19 Conn., 421. Chipman v. City of Hartford, 21 id., 488.
    2. There is no adequate remedy at law. The only remedy would be by an action of ejectment, but this would not be sufficient to remove from the public records the apparent title of the respondents. The judgment in ejectment would not go upon the public records, while the decree of the court removing the cloud from the petitioner’s title would. As the records now stand they show that the mortgage to Noble-W. Munson was recorded before the petitioner’s deed, but do not show that he had notice of the deed at the time he took the mortgage. This fact depends on parol evidence, and this evidence may be lost. The levy of the execution upon the land, although subsequent to the recording of the petitioner’s deed, yet creates a suspicion of his title, and he has a right to have this embarrassment removed. Especially is this so where the proceedings of the respondents have been fraudulent, as they.are found to liave been here. The legal *remedy, to constitute a [ *586 J reason for the refusal of equitable relief, must be obvious, adequate and complete, and where the proceedings which throw a cloud upon a petitioner’s title are void, but yet it does not appear upon their face that they are so, equity will grant relief. Chipman v. City of Hartford, supra. Besides the objection is taken too late. Id.
    
    
      Hubbard and Kellogg, with whom was Cothren, for the respondents.
    1. There is no such cloud thrown upon the petitioner’s title, if he has one, as calls for the interposition of a court of equity in his favor. The judgment was against Cornelius Munson only, and the levy was after the recording of the petitioner’s deed, and was only upon such interest as Cornelius Munson might have. If he had no interest nothing was taken by the levy, -and if he had any the respondents had a right to levy on it. And the mortgage to Noble W. Munson was taken with full knowledge of the petitioner’s deed, and with no intention to embarrass his title. His title was therefore, at law as well as in equity, subject to that of the petitioner. So far as the proceedings of the respondents in taking a judgment against Cornelius Munson and in foreclosing the mortgage are concerned, the petitoner has nothing to do with them. He was not a party and can not be affected by them. He could not have appeared in the cases if he had known of them. It is not found that a cloud was in fact thrown upon the petitioner’s title, but only that the respondents did what they did with an intent to throw a cloud upon it. There is no reason therefore for granting the relief sought, even if there was no adequate remedy at law.
    2. But the petitioner has adequate remedy at law. He is out of possession, and must in any event bring an action of ejectment to recover possession. In this action he can show the fact that Noble W. Munson took his mortgage with knowledge of his unrecorded deed, and the other proceedings would have no effect in the case if the petitioner’s deed gave him a title. The question involved is one of title between the par- [ *586 ] ties, and it is the right of the respondents *that this question should be tried by a jury. 1 Sto. Eq. Jur., § 72. Sanderlin v. Thompson, 2 Dev. Ch., 539. Devaux v. City of Detroit, Harring. Ch., 98. Thayer v. Smith, 9 Met., 470. Stannard v. Whittlesey, 9 Conn., 559. Norwich & Worcester R. R. Co. v. Story, 17 id., 364, 369. Johnson v. Connecticut Bank, 21 id., 148, 157, 160.
   Ellsworth, J.

This is an application to the court for relief against an injury threatened to or impending over the petitioner’s title, from the record of a certain deed and from certain judicial proceedings; or, in other words, it is a bill quia timet.

That there is such a branch of equity jurisdiction, which may afford a preventive remedy in certain cases, will not be denied ; but the power is not exercised as a matter of course, nor under any universal rule or principle of law requiring its exercise. It is preventive, as we have said, and very much must depend upon the extent and imminence of the danger threatened, and the view which will be taken of the case by a discreet judge. The general rules and principles relating to the subject are well established, and familiar to every jurist, and they are eminently beneficent in their operation. These principles are sufficient in themselves, we think, to decide the case before the court; but in the application of these principles, much must be left, as a general rule, to the circumstances and necessities of each particular case.

We are satisfied that no case is made out here by the petitioner, rendering it incumbent upon, or ever proper for, a court of equity to interpose and grant the relief asked for. The court can not indeed grant that relief without establishing a precedent, the bearing and extent of which we can not foresee.

On his .own showing the petitioner has, we think, adequate and complete remedy at law. He has the legal title. The respondents are in possession, without the shadow of a right, and of course liable to be ejected as soon as the petitioner shall bring his suit. There is no apparent cloud on the title he discloses in himself which needs to be removed. His * title is some six years earlier in date than the title [ *587 ] he complains of, so that, so far as we can see, his way is clear at law, and his remedy certain and adequate. The only objection which might seemingly be urged against the petitioner’s title, lies in the fact that the deed to Noble W. Munson, though later in execution by some years than the deed to the petitioner, ■was recorded first; but the existence of the petitioner’s deed was well known to Noble W. Munson when he took his deed, and the petitioner’s delay, too, though extending over some years, was the result of an agreement with his grantor that the deed was not to be put on record; an omission not entitled to any peculiar favor from the court, nor is it made the. ground of the relief prayed for. It is not pretended that the said Noble has, by greater diligence on his part, outstripped the petitioner in getting his deed recorded first; not a word of the kind is mentioned in the bill; nothing is heard about the recording of the conflicting deeds until the committee make their report to the court, and the fact as there presented is certainly of no kind of importance.

The cases in the books, on this particular remedial interposition by a bill of quia timet, are quite numerous in England and the United States, and in many of their features are like this case, and are without contradiction or question. One principal question has been, whether equity will ever interfere by such a bill, if the writing, deed, or instrument prayed to be cancelled, appears on its face to be of no legal validity; as in that case, it is certain, no action can be brought and maintained on it at law’. It will of course relieve, such relief being otherwise proper, if the ground of objection or the invalidity of the instrument does not thus appear, and is to be proved by matter aliunde, for such evidence may be lost by time and accident.

In Minshaw v. Jordan, 3 Brown Ch., 17, the Master of the Rolls seemed to favor this distinction. In Ryan v. Mackmath, (id. 15,) Lord Thurlow inclined, to a different opinion, that is, to the opinion that such a distinction did not prevail in all cases. In Jackman v. Mitchell, 13 Ves., 584, Sir Samuel *Romilly said, citing the last case, that the decision [ *588 ] was not approved at the time, as the note was void, not upon the face of it, but from collateral circumstances. In Newman v. Milner, 2 Ves. Jr., 483, Ld. Lougborough ordered a bill of exchange, avowedly given by one partner in the name of the firm for his private debt, to be delivered up with costs, without waiting for a trial at law'; but in Franco v. Bolton, 3 Ves., 368, and Gray v. Mathias, 5 Vez., 286, doubts were throw'n on this last case. In Bromley v. Holland, 7 Ves., 3, Lord Eldon asserted the general jurisdiction, and did not concur in the decision of Franco v. Bolton. The general jurisdiction, is asserted and decided in Jackman v. Mitchell, 13 Ves., 581, and in many other English cases. In Hamilton v. Cummings, 1 Johns. Cha., 521, all the cases are brought together, and examined by the chancellor with his usual learning and ability. He seems inclined to a liberal exercise of the power, leaving it to the sound discretion of the court to act or to refuse to act. This is his language : But while I assert the authority of the court to sustain such bills, I am not to be understood as encouraging applications where the fitness of the exercise of the power of the court is not pretty strongly displayed. The exercise of this power is to be regulated by a sound discretion, as the circumstances of the case may dictate, and the resort to equity, to be sustained, must be expedient, either because the instrument is liable to abuse from its negotiable character, or because the defense not arising on its face may be difficult or uncertain at law, or from some other special circumstances peculiar to the case and rendering a resort here highly proper, and.clear of all suspicion of any design to promote expense and litigation.”

Judge Story, after reviewing the cases on this subject in his work on equity jurisprudence, closed his comments upon them with the following remarks: “ But where the illegality of the agreement, deed or other instrument appears on 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 cancelled.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; nor can it in [ *589 ] *a just sense be said, that such a paper can throw a cloud over his right or title, or diminish its security ; nor is it capable of being used as a means of vexatious litigation or serious injury. And, accordingly, it is now fully established that in such cases courts of equity will not interpose their authority to order a cancellation or delivery up of such instruments. Upon an analogous principle courts of equity have refused to entertain a bill for the delivery up of a bill of exchange, on which the holder had obtained a judgment at law against the plaintiff, which was satisfied though retained in possession, as there was scarce a pretense of damage from future litigation.” 2 Sto. Eq. Jur., § 700 a. The case of Field v. Holbrook, 6 Duer, 597, is a very strong one to the same effect.

These remarks of Judge Story and -others, seem to us to be quite applicable to and decisive of the present case, whether we consider it as involving a strict question of .jurisdiction or an appeal to the discretion of the court.

We advise that the bill be dismissed. .

In this opinion the other judges concurred.

Bill to be dismissed.  