
    Sarah Willard v. Lewis Bullard et al.
    
    
      (Supreme Court, Special Term, Onondaga County,
    
    
      Filed, October, 1888.)
    
    
      1. Ejectment—What mat be set up as defense in action of.
    This motion is made by one of the defendants to dissolve a temporary injunction order granted herein, restraining him from further prosecuting an action of ejectment brought against the plaintiff and another of the defendants, to secure possession of certain lands. Held, that in the ejectment action the defendant therein, and plaintiff in this, could interpose by way of an equitable defense the same matter alleged in her complaint in this action as fraud or mistake in the deed through which the plaintiff in the ejectment action derives his title, whereby it described lands not intended to be conveyed, and that if successful in establishing the same, it would defeat the plaintiff therein.
    
      2. Same—When action of will not be restrained by injunction.
    
      Held, that equity would not retain any injunction restraining the prosecution of an action of ejectment when it appeared that the complainant had a good defense to such action, and that a pending injunction restraining the action or proceedings therein would be dissolved as to any part of the said lands the title to which could be obtained in said action.
    8. Equity—Will not restrain party from assertion of title to real ESTATE UNLESS CASE IS FREE FROM DOUBT.
    Equity will not restrain a party from the assertion of title to real estate, unless the case be one entirely free from doubt, since to do so is to deprive the claimant of possession by suspension of his rights in a summary manner.
    Motion by defendant, Theodore Bearss, to dissolve a temporary injunction order, granted herein, restraining him (said Bearss) from further prosecuting an action of ejectment, brought against the plaintiff, Sarah Bullard, to secure the possession of certain lands therein described.
    
      William M. Ross, for deft, Bearss; William Nottingham, for pl’ffs.
   Kennedy, J.

The defendant, Theodore Bearss, commenced an action in the supreme court against the plaintiff to recover the possession of the lands therein described, the summons in which was served on the nineteenth day of September, together with the complaint.

In that action the defendant has not answered. It seems to be conceded that Bearss has a paper title to the lands in dispute, and that at the time he acquired the same, the said Sarah Bullard was in possession, and ever since has been claiming to be the owner thereof.

After the action of ejectment was commenced, the defendant therein, Sarah Bullard, commenced this action, for the purpose of reforming the deed of the lands, under Bearss’ claims, upon the ground that by fraud or mistake, the description therein is made to convey the lands in dispute when in fact it was not intended that the same should be included or conveyed. Sarah Bullard was the original grantor of said lands, and her grantee and subsequent grantors down to and including Bearss, are made defendants in this equitable action. The temporary injunction order sought by this motion to be vacated, was granted restraining Bearss from further prosecuting his action of ejectment.

In the ejectment action, the defendant therein and plaintiff in this could interpose, by way of an equitable defense, the same matter which in this action she makes her cause of complaint by the fraud or mistake in the deed, and if she shall satisfactorily establish the same it will seem to defeat the plaintiff therein. Philps v. Gorham, 17 N. Y., 270; Van Deusen v. Sweet, 51 id., 378; Lattin v. McCarty, 41 id., 107; Pitcher v. Hennessey, 48 id., 422; Mandeville v. Reynolds, 68 id., 528.

Many other authorities might be referred to in support of the proposition, and the question is not one now open to discussion. In the ejectment action the plaintiff is entitled to a trial by a jury. If the plaintiff in this action shall fail to establish her claim, Bearss would still be obliged to prosecute his action of ejectment to secure possession unless the same was voluntarily surrendered by Mrs. Bullard. She might refuse to surrender and perhaps sufficiently defend the ejectment action upon the ground that she was in possession, holding adversely under a claim of title at the time the plaintiff took his deed, and during the time the several intermediate conveyances were made from her grantee, Lewis Bullard, notwithstanding she should fail in the equity action in reforming the deed.

The following principles applicable to this case may be regarded, I think, as elementary. Equity will not retain any injunction restraining the prosecution of an action of ejectment when it appears that the complainant has a good defense to such action, and a pending injunction restraining same action or proceedings therein will be dissolved as to any part of said lands, the title to which can be obtained in said action.

These questions were considered and the doctrine approved in Savage v. Allen, 54 N. Y., 458, 463. This case, as appears to me, settles the question adverse to the position of the plaintiff in this action.

Equity will not restrain a party from the assertion of title to real estate, unless the case be one entirely free from doubt, since to do so is to deprive the claimant of possession by suspension of his rights in a summary manner.

In this case, freedom from doubt or question does not exist, since the claim of the plaintiff must be satisfactorily established before she is entitled to the equitable relief she seeks. Again, it is a salutary rule, that when title is being tested in an action of ejectment in a court of law having jurisdiction of the matter, the action will not be enjoined since this interference would be repugnant to the clearly established principles, that when different courts or the same court have or has concurrent jurisdiction, the right to determine the controversy belongs to the tribunal to which resort, is first had. Stockton v. Williams, 1 Doug. Mich., 546.

In the action of ejectment as before shown, the defendant can set up the equitable defense of fraud or mistake in the deed, and if she succeeds in establishing it, that will terminate the same in her favor. So far as this question is in-valved, if she fails, the plaintiff will, as against her, have established his rights to the possession, and the court will restore the same to him.

The question of the right of possession is the only one involved. So far as this is connected with or rests upon title, just so far the title may be involved, but the right to possession either in the plaintiff or defendant, may rest upon many other grounds besides actual title; and it cannot be absolutely said that the rights of either party in this regard will be determined in the equity action, whatever the result of that may be.

When the rights of the parties have been definitely settled by a court of equity, it may interpose and restrain a prosecution of an action of ejectment brought or prosecuted in disregard of those rights. Such was the case in Bush v. Hicks, 60 N. Y., 298, cited by the learned counsel for the plaintiff; but I know of no case when such interference has been permitted, where the rights of the parties were unsettled and undetermined.

An order will be entered dissolving the temporary injunction with ten dollars costs to defendant, Bearss.  