
    MARCUS C. BOGEY against WILLIAM H. SHUTE and others.
    
    A mortgagee in a bill for foreclosure cannot bring in one who is in possession of a part of tlie mortgaged premises claiming it adversely, and pray to have his title deed set aside as having been voluntary and antedated to defraud the mortgagee and other creditors, the bill not alledging any impediment in the way of the plaintiff’s suing at law.
    A bill for an injunction to stay destructive waste cannot bo sustained against one in exclusive possession, claiming, colorably, the absolute estate, where no action at law has been brought and none contemplated.
    Cause removed from the Court of Equity of Craven county.
    On the 22d of January, 1840, Bhoderick S. Shute executed to the plaintiff a mortgage in fee of several tracts of land to save him harmless as his surety in several bonds and notes given by them to several persons and registered on tlie 29th of January, 1840. In April, 1848, the plaintiff filed an original bill against the mortgagor stating the payment of the debts by the plaintiff and praying a foreclosure or sale of the premises for liis satisfaction. Bhoderick S. Shute died without putting in an answer, and by a bill of revivor and amended bill filed in October, 1850, tlie suit was revived against William II. Shute the younger, the only child and heir at law of the mortgagor. The latter bill also states that tlie other defendant, William II. Shute, the elder, had setup title to acertaba part of the mortgaged premises in fee, by virtue of a deed therefor from Bhoderick S. Shute to him, bearing date the 1st of May, 1838, and purporting to be made upon the consideration of $295 paid, which was registered upon the acknowledgment of the bargainor, in August, 1841. The bill charges, that at the time the deed to him bears date, the defendant, William II., the elder, was a small child and had not the means of purchasing the land, and that, in fact, he paid nothing for it; that the deed was ante-dated, so as to overreach the mortgage to the plaintiff, and was devised by Blioderick S. Shute to defraud him and his other creditors, as he was in failing circumstances, and became insolvent several years before his death. .
    
      The prayer is for a discovery on those points, and that the deed may be declared fraudulent and void as against the plainiiff and decreed to be delivered up; or that the defendant, William II., the elder, shall release, and for general relief.
    By a supplemental bill it is stated that the land is poor and not fit for cultivation, but has on it a large number of pine trees, valuable for timber, and also for turpentine — and charging that William H. Shute, the elder, had got into possession -of the land, and was cutting, removing and selling the timber, in large quantities, and thereby destroying the value of the land so that it would be rendered an insufficient security for the sum due to the-plaintiff on his mortgage, before the cause could be brought to a hearing ; and that lie is insolvent, and praying an injunction restraining that defendant from the destructive waste; and upon this bill the injunction was ordered.
    A formal answer was made for the infant heir-at-law.
    To both the bills the other defendant, William H. Shute, the elder, answered, that the deed to him was not ante-dated, but was executed on the day it bears date, and for the consideration of $295, mentioned in it, which was advanced and paid for him by one Ann Eoscue, the grand-mother of this defendant, for his preferment in life, and was bona fide, and not intended to defraud the plaintiff, or any creditor of Roderick S. Shute. The answer admits that the defendant is in possession of the land covered by the deed to him, and has been for several yearn, and that he is cutting the timber and disposing of it, but says that he is not doing so wastefully, but, as any other prudent proprietor would, and as the legal and rightful owner, he has a right to do ; and it then insists, that both as to the title to the land, and the alleged trespass on it, the matter is triable at law.
    By a consent of the parties, there was a reference to ascertain the sum due to the plaintiff on the footing of the mortgage, and there, was a sale of those parts of the mortgaged premises not claimed by the defendant, William II. Shute, the elder; and the master reports that after applying the proceeds of the land sold, there is a balance due to the plaintiff of $574 08, with interest, from June 20th, 1857.
    
      Badger, Green and Mason, for the plaintiff.
    
      J. W. Bryan, for the defendant.
   Ruffin, J.

The plaintiff is entitled, as a matter of course, to a decree of foreclosure as against the heir of the mortgagor ; but, as that defendant is an infant, the costs cannot be given against him, and are chargeable on the mortgaged premises, as the debt and interest are.

With respect to the other part of the case, the Court is of opinion that the bill cannot be sustained. The parties have taken much testimony to impeach and sustain the deed under which the defendant, William II. Shute, the elder, claims. But we do not meddle with it, because that is a question concerning the legal title merely, and is not properly cognizable in equity. The plaintiff does not come into court upon an equitable title, but upon his legal title as mortgagee, for the purpose of getting his debt, or having his legal title quieted by terminating an equity of the mortgagor to redeem. Thus far the bill is a proper one. But finding, as he says, that the other defendant was also claiming the land, as the legal owner in fee, under a deed from the plaintiff's mortgagor, prior in date to the the mortgage, the plaintiff alleges that deed to be fraudulent and void as against the creditors of the maker of it and against himself as mortgagee — because, supposing it to have been executed at its date, it was a voluntary conveyance by an insolvent man; and also that it cannot defeat the the plaintiff’s title, because, though bearing date prior to thé mortgage, it was, in fact, executed afterwards. Upon both of these points, the parties are at issue, and it is apparent that they involve, simply, the legal title, as between these parties. The bill states no impediment in the way of the plaintiff’s suing at law, nor any reason for suing here. It is, upon its face, an ejectment bill, and every question raised here, as to the title, could be raised and would be triable in an action of ejectment; and, therefore, this Court ought not to assume the jurisdiction of deciding them. There are a few cases in which some of the courts of this country have said, that where the defendant submits to the jurisdiction by answering on the merits without raising the objection, and the parties bring the cause to a hearing on the proofs, the question will be entertained, because the court is competent to decide a question of fraud. But that depends upon the nature of the fraud, and the kind of interest affected by it; and as a general proposition it may, therefore, well be questioned. But, certainly, it cannot apply to a case like this, in which the questions are peculiarly proper for a jury, and on which, if the court would assume the jurisdiction at all, issues would probably be directed. And, more especially, it is not here applicable — because the defendant distinctly raises the objection in his answer, and it was, therefore, the folly of the plaintiff by taking replication to proceed to proofs, and compel the other party to do so too.

Nor is the plaintiff’s case any the better upon the supplemental bill, on which he obtained an injunction against cutting the timber on the land. It does not seek an account of the produce of the timber, but merely an injunction on the ground of the insolvency of the defendant and the injury to the substance of the estate, by acts in the nature of destructive waste. Such a bill cannot be sustained against one in exclusive possession — claiming, colorably at least, the absolute estate, until the plaintiff has established his title at law — or, at all events, an injunction can be granted only when the plaintiff is endeavoring to establish his title at law, and until he.should have a reasonable time allowed for that purpose. For, the court of equity acts in such eases, not as superseding the jurisdiction of the courts of law over a legal title, but only in aid of a legal remedy, defective, because dilatory. These principles were so fully settled in the case of Irwin v. Davidson, 3 Ired. Eq. 311, that they need no further illustration on this occasion. Here, there has been no’trial at law, and no case put in train for trial. On the contrary, the plaintiff, clearly, does not contemplate such a course, but proposes to-change the jurisdiction altogether; for, the reason assigned in the bill for the necessity for the injunction is, that without it, the timber would all be felled and sold before the hearing of this cause, so as to destroy the value of the land as a security for the debt at the making of a decree for foreclosure.

In no respect, therefore, can the bill be entertained as against the defendant, William II. Shute, the elder, and as against him it must be dismissed, with costs.

Per Curiam, Decree accordingly.  