
    MARY HARMON ET AL. v. JOSEPH T. DYER ET AL.
    Equity. —
    No. 4490.
    I. A deed of conveyance from the devisee of a trustee in a trust deed will give color of title to the possession accompanying it, and a claim of title and possession under it will be evidence of an interest in the land described in the deed adverse to every other claim.
    II. A judgment in ejectment which was perpetually enjoined by a decree in equity for the reason that it was obtained fraudulently;' does not interrupt the continuity of an adverse possession.
    III. Where there have been two actions in'ejectment, one of which has been perpetually enjoined and the other discontinued, and where the defendants set up their title again in a cross-bill, a court of equity will entertain jurisdiction to quiet the title where the adverse possession has ripened into a full and perfect estate.
    STATEMENT OE THE CASE.
    The facts to be collected from the pleadings and proofs are substantially as follows: In September, 1835, one Dolía Mullen, the ancestor of the defendants, was seized in fee of a parcel of land in the District of Columbia, which need not be more fully described, and being indebted to Teresa Byrne and Bridget Rogers in the sum of $103.75, which was to become due on September 30, 1837, she conveyed said real estate to Edward Dyer and his heirs in trust to secure the payment of said indebtedness in full. The deed contained the usual power to sell the property in case the said Dolía Mullen made default iu paying off the debt. Under this trust the property seems to have been advertised for sale May 20, 1845, and Dolía Mullen paid to the agent of Teresa Byrne the sum of $200 on this indebtedness; but it is clear from the receipt given on that occasion that the payment was on account, and that a balance remained due and unpaid.' The sale did not take place. On the 7th of September, 1845, Edward Dyer died, having made his will, devising to his wife, Henrietta H. Dyer, all and singular the propei’ty and effects of which he died seized and possessed; and on May 18,1848, the said Henrietta Dyer, by virtue of such will, and claiming to be the sole heir of her late husband, and believing herself authorized by the power contained in said trust, sold said parcel of land to Teresa Byrne for the balance of the indebtedness then due and unpaid. The said Teresa Byrne resold her interest in said sale to John L. Harmon, the father of these complainants, and on the 11th of August following the said Teresa Byrne and the said Henrietta Dyer united in the execution of a deed in fee of the premiees to said John L. Harmon, he paying for said purchase the sum of $350. It further appears that about this time Dolía Mullen vacated fhe premises, and the said Harmon took possession thereof, paid the taxes thereon, and claimed title thereto from the date of his deed to the time of his death, which took place on June 26, 1862, and that he died intestate, leaving the plaintiffs, his wife and four children, in quiet possession, who have also claimed title to the property ever since, for a period of about thirty years. Dolía Mullen remained in the neighborhood for over fifteen years after the sale without making any claim to the property.
    In 1868 the heirs of Dolía Mullen commenced an action of ejectment in the old form of John Doe on the demises of the heirs of Dyer against John L. Harmon, whose death had taken place six years previously, and' obtained judgment. Service was obtained on the complainant John O. Harmon, but before there was any execution of said judgment, the same wa3, by a decree in equity, perpetually enjoined on the ground of a want of service of process in an action against one dead. That injunction is still in force.
    Afterwards, in 1871, these defendants instituted an action of ejectment against these complainants to recover the said property, and, upon trial, a verdict and judgment were given in favor of these complainants, from which the defendants appealed; when said judgment was set aside on grounds different from that of complainants’ principal grounds of defense — adverse possession. That these defendants refused to retry the said suit, and two years afterwards voluntarily dismissed the same; since which time they have made no judicial assertion of their claim until that made in the cross-bill of the present case.
    As already intimated, the Mullen heirs, who are defendants, have filed a cross-bill, which alleges that the debt was paid ; that the recovery in the first ejectment suit was good as to one undivided fourth part of the estate; that this recovery broke the continuity of adverse possession ; charges that said conveyances stated could only operate to pass naked legal title for use of Dolía Mullen; relates the original bill, and prays, inter alia, for an account of one-fourth of the rents, and, for general relief.
    The answer of the Harmons denies the payment of the whole debt on May 20, 1845; avers that after John L. Harmon was long dead a summons was presented to John O. Harmon, son of the late John L., who was requested to sign his name on the back of it, which he did, and subsequently employed counsel and defended the cause; claims a valid title and the benefit of limitation.
    The decree, May 25, grants the injunction prayed and dismisses cross-bill.
    The case is here on appeal from this decree.
    
      A. G. Riddle and J. E. Padgett, for complainants.
    Harmon went into possession in good faith, and in the belief that he had a valid title to the property. There is no evidence that Holla Mullen ever asserted an adverse claim to the premises to Mr. Harmon, but from her subsequent actions the law presumes the contrary.
    Harmon made repairs, paid the purchase-money and taxes, and if Holla Mullen had any title to the premises she should have asserted it at the time of the sale, and not permitted the purchaser to expend money thereon in the belief that he was the true owner; and the law will not allow her heirs after the lapse of twenty-nine years to impeach the title of the purchaser and set up said adverse claim. (Story’s Eq. Jur., secs. 385, 388; Storrs v. Barker, 6 Johns. Ch., 166; Wendell v. Van Renselaer, 1 Johns. Ch., 354.)
    Holla Mullen, during subsequent life, and her heirs, since her death, have been guilty of such laches as preclude them from any relief in this court. (Story’s Eq. Jur., sec. 1520, note 3.)
    Harmon entered into possession of the premises under color or claim of title, and he and his heirs have continued in the adverse and open possession of the' same ever since. If a person claims title under a void and worthless deed, it is sufficient to support an adverse possession. (Tyler on Eject., 861, et seq.; Wright v. Mattison, 18 How., 56; Pillow v. Roberts, 13 How., 477.)
    Where a person enters into the possession of real estate under color or claim of title, and continues in the adverse, open, and notorious possession of the same for twenty years, he thereby acquires a legal title to the estate, and may plead b in bar of an ejectment. And this adverse possession not only bars the remedy, but extinguishes the right of those claiming title to the property, and vests a perfect title in the adverse holder. (Leffingwell v. Warren, 2 Black R., 605; Tyler on Eject., 861, et seq.)
    This court has jurisdiction of the bill in the present cause, and may grant the relief asked. Separate attempts have been unsuccessfully made to overthrow the rights of the complainants, and justice requires that they should be quieted in these rights. They are clearly entitled to the redress prayed for, and another trial at law is not necessary. The granting of the writ of injunction rests in the sound discretion of the court, and it will be granted to quiet title where the right has been established at law; and where the right is plain, and the remedy at law is not adequate, it will oftentimes be granted without even a trial at law. (Cutting v. Gilbert, 5 Bl. C. C., 263; Alexander v. Pendleton, 8 Cranch, 462; Nichols v. Trustees of Huntington, 1 John. Ch., 176; 3 John., 604; Story’s Eq. Jur., sec. 853.)
    Perpetual injunction to quiet title will lie, when the party having possession is disturbed, but not so dispossessed as to make it the subject of an action at law. (Trustees of Louisville v. Greg, 1 Litt., 148; Armitage v. Wickliff, 12 B. Monroe, 494.)
    When Dolía Mullen executed the deed of trust she conveyed all her legal estate to Edward Dyer and heirs, and retained only the equity of redemption. Neither she nor her heirs are entitled to any redress in a court of law, and this is the only court that has jurisdiction in the premises. (Tyler on Eject, pp. 62, 74, 75, 773, and cases cited.)
    
      Th. Jessup Millet', for defendants.
    On August 11,1848, Henrietta Dyer, the widow, having no estate therein, purporting to bé sole heir of Edward Dyer by virtue of said will, and pretending to be trustee by virtue of said deed of trust, for $1 to herself and $349 to Teresa Byrne, pretended to convey the parcel of land to John L. Harmon. As this deed recited the deed of trust and the will, and refers to them as the source whence the grantor derived authority to convey, they are to be construed as if incorporated in it. (Van Renselaer v. Kearney, 11 H., 328.) It is apparent, then, from the face of the deed, that no estate did or could pass thereby. If anything passed, it was the naked legal title for the use of Dolía Mullen and her heirs.
    Thereafter, J. L. Harmon certainly lorongfully and tortiously, and, as appears probable from the evidence, also forcibly, obtained possession of the land, and thence kept possession thereof peaceably until his death in 1862, and his widow and children continued such peaceable possession until May 14, 1868, less than twenty years, when John Doe, on demises from the heirs of Edward Dyer and from heirs of Dolía Mullen, brought suit in ejectment for the land against Bichard Boe, who gave notice to John Harmon, under the name of John L. Harmon, who, as he learned, was in possession of the premises, to defend the suit. The plaintiff in this cause, John O. Harmon, received copy of the declaration May 16, 1868, and appeared in the cause, and with the other heirs of his father employed counsel and defended the cause, and judgment was rendered for the plaintiff.
    The recovery in this cause was good. It is no objection to it that the occupants — complainants here — were not served with any writ or process. They had notice of the suit and they defended it. The judgment, therefore, in this cause was as effectual as a judgment in the old form of ejectment with its fictions could be, not as concluding any person or party, but as putting the plaintiffs in possession. (See Evans Pr., 202; Cox Com. Law Pr., 193; Gray v. Patton, 2 B. Mon., 12; Fairclaim. v. Shamtitle, 2 Burrows, 1292.)
    The recovery as against John O. Harmon, a complainant here, was unquestionably complete. He, by the name of John Harmon, (which name he often used,) appeared, pleaded claiming title, and suffered judgment. “ The law knows but one Christian name, and the insertion or omission of a middle name or initial letter is not material.” (Gaines v. Stiles, 14 Pet., 322.)
    
      April 29,1870, the complainants here filed their bill against the heirs of Dyer and the marshal of the District to enjoin the execution of a writ of habere facias possessionem issued ou said judgment, on the ground substantially that there was no defendant to said suit; the prayer of this bill was granted by default.
    The proceedings in this cause were coram non judice, and therefore utterly null and void.
    The proceedings in this- cause had no effect upon the judgment in the ejectment suit. The judgment ousted the plaintiffs here and interrupted the adverse possession, and stands affirmed by the court in general term.
    These proceedings cannot be held to have any effect whatever upon the rights of the heirs of Mullen, not made parties, to have their execution on the judgment.
    The bill in the present cause must fail for want of jurisdiction in this court as a bill of peace, because that is “ filed for securing an established legal title against the vexatious recurrence of litigation, whether by a numerous, class insisting on the same right, or by an individual reiterating an unsuccessful claim. The equity is, that if the right be established at law, it is entitled to adequate protection.” (Adams Eq., 199-202; Black v. Shreve, 3 Halst. Ch., 440; Bond v. Little, 10 Geo., 395.)
    “ In order to the maintenance of a bill of peace, the complainant must have first established his title at law.” (Eldridge v. Hill, 2 Johns. Ch., 281; 2 Story Eq., sec. 859; Morgan v. Smith, 11 Ill., 194; Green v. Harrison, 7 Ala., 585; Low v. Lowry, 4 Hammond, 78; Harman v. Gwynne, 5 McLean, 313; Paterson v. R. R. Co., 1 Stockt, 434.)
    A bill for injunction -will no lie, because tbe record shows that the complainants are in possession of the property as wrong-doers and are entitled to no equity. They are without any sort of privity with the title to any estate in the premises. The adverse possession attempted to be set up, and held by the chancellor to be a sufficient title, can only begin to run from the time of the recovery in the ejectment suit in 1870— not sufficient to give any title.
   Cartter, Ch. J.,

delivered the opinion of the court:

After stating the facts, he proceeded to say, in substance, that it cannot be disguised as a fact established by the proofs in this case, that Dolía Mullen knew when the property in question was transferred by a conveyance to John L. Harmon; and that with full information on this subject, she at least, by her silence, acquiesced in his possession, accompanied with a claim of title for a period, a little indefinite to be sure, but certainly for sixteen or seventeen years. She did not die uptil immediately before the commencement of the war. She appears to have gone out of possession and Harmon to have gone in about the same time; so that she, at all events, seemed to believe that Harmon was entitled to the premises. It was not until four days before the expiration of twenty years from the time of Harmon’s purchase that the first action in ejectmeut was commenced by her heirs. Now, admitting that it was not in the power of Dyer to create by his will a title in his devisee, still the conveyance of his wife to Harmon could perform the office of giving color of title to the possession that accompanied it. "We think it did this effectually, and it is properly to be considered in evidence here of an interest in the laud adverse to every other claim.

On May 16, 1863, the ejectment was commenced, and if the recovery in that action had remained unimpeached, its effect would have been to destroy the adverse character of possession by the Harmons. But the execution of that judgment was enjoined perpetually by a decree in equity. We think the decree was as broad as the judgment and neutralized its effect. The bill in equity alleged that the judgment was fraudulent and void as against the heirs of Harmon, for the reason that the suit was commenced against a man who had been six years in his grave, and the service of process therein had been imposed upon a man not a party to the suit, under the representation that if he did not acknowledge a service made upon him, judgment would go by default, and other serious consequences would follow. The charge that the judgment was fraudulent appears to have been sustained by the court, and a perpetual injunction was decreed. This, we think, is the end of that matter, and the parties were left to enjoy their rights as if there had been no such recovery.

Matters remained in this condition until 1871, when defendants for the second time instituted another action of ejectment to recover the property, and these complainants succeeded in establishing a defense under the statute of limitations. The judgment upon an appeal was set aside, but on grounds which did not reach the merits of this defense. The cause went back to the Circuit Court, and the Mullens discontinued their action, leaving the complainant in a possession that had ripened into complete and perfect title.

The defendants, for the third time, have claimed title in their cross-bill, and the complainants ask to have the controversy settled, so that they may enjoy the qniet possession of the property thus acquired, released of this clamor against their title. They represent that this is necessary in order to enable them to partition, or to sell the land for its true and adequate value. The court below came to the conclusion that complainants’ title had been sufficiently established to justify a decree for that purpose, and after a thorough presentation of the case by counsel we have come to the same conclusion. Harmon entered into possession by virtue of a conveyance not strictly in accordance with law, but he honestly paid the consideration which satisfied the outstanding trust deed, and for a period considerably over twenty years he claimed title during his life-time, and his heirs after him. There have been two ejectment suits; the cloud of this controversy still hangs over the estate, and we think it ought now to be put to rest. We therefore order that the decree below be affirmed.  