#### *Warwick and Wife and Another v. Norvell.

February, 1829.

(Absent Cabelland Coalter, J.)

Equity Practice * — Application to Stay Proceedings at Law-Confession of Judgment Necessary to Granting injunction. — where a party defendant in a suit at law, before judgment, resorts as plaintiff to equity, praying relief against *the*claim asserted at law on equitable grounds, and an injunction to stay proceedings at law, the injunction should be granted only on condition that he confess judgment at law. though he may ha.ve grounds of defence at law, distinct from the grounds of relief preferred to the court of equity.

Same — Same—Same—Appeal.—Where an injunction has been granted in such a case, and the chancellor dissolves the injunction, unless the plaintiff in equity will confess judgment at law; on appeal from such an order, this court will not examine the merits, though, at the time the order was made, the cause stood, for hearing.

This controversy had been already before this court, several times, in various forms; and a recapitulation of the former adjudications concerning it, formed an essential part of the state of the case, in the shape in which it was now presented to the court.

In ejectment, brought by John Camm and wife and John Warwick and wife against Eeuben Norvell, for a piece of land in Amherst, the jury found, in a special verdict, that the land in controversy was parcel of a tract of 3926 acres, which had been granted, in September 1755, to James Christian, John Christian and William Brown. No division was made among them. After the death of the grantees James and John Christian, (whereby the whole land survived to Brown) Charles and John Christian, sons of the grantee John, presented a petition to the governor, for the whole tract, as lapsed and forfeited for non-payment of quit rents. The general court, in April ’74, gave judgment for the petitioners, that the lands were forfeited and re-vested in the crown, and ordered it to be certified to the governor. In October ’77, the petitioners Charles and John Christian, conveyed and delivered possession of 933 acres of the land to James Gresham. Gresham, in August ’87, conveyed and delivered possession of 433 acres, parcel of the 933 *acres, to Thomas Powell; he died in ’88, intestate; and Mrs. Camm and Mrs. Warwick were his daughters and heirs. The tract of 433 acres was the land claimed in the ejectment. Camm and wife and Warwick and wife, and those they claimed under, had been in possession of it from ’74 till 1800, when Norvell entered and ousted them. Norvell had obtained a grant for land, including about 330 of the 433 acres, founded on a and office treasury warrant, entered in September ’94, surveyed in November ’95, and granted by patent dated November ’97. Upon this state of facts, the district court gave judgment for the heirs of Powell, Mrs. Camm and Mrs. Warwick ; and, on an appeal taken by Norvell to this court, the judgment was affirmed, in May 1811, on the single ground, that the long possession, which had been held by the heirs of Powell, and those they claimed under, gave them title to recover, in ejectment. Norvell v. Camm, &c., 2 Munf. 257.

Norvell then brought a writ of right for the tract of 433 acres of land, against Camm and wife and Warwick and wife; upon the trial of which, the titles under which both parties claimed being exhibited, the circuit court instructed the jury, that, as the land had been once granted by patent in ’55, though it had been adjudged forfeited and lapsed, by the general court in ’74, and though no new patent had been granted to the petitioners, at whose suit it was so forfeited, yet it was not waste and unappropriated land, subject to be taken up by a treasury warrant; and, therefore, the patent granted to Norvell in November ’97, was void. The jury, under this instruction, found a verdict for the tenants, and the court gave them judgment. Norvell appealed. And a special court of appeals, in December 1818, held, that Norvell’s patent, being on its face fair and regular, could not be thus impugned, collaterally and by extrinsick evidence, but only by suit in equity to set it aside, or some other proceeding having that for its direct object; and that patent must prevail, except against an elder one: therefore, *the judgment was reversed, and a new trial directed. Norvell v. Camm, &c., 6 Munf. 233.

Upon the second trial in the circuit court, the tenants forbore to exhibit their title: they merely offered evidence of long and continued possession, in themselves and those under whom they claimed, payment of quit-rents &c. to lead to the presumption of a patent prior to that under which Norvell claimed. And Norvell, first, to establish his own title, exhibited his patent of November ’97, and another patent dated June 1813, with parol evidence to shew that those patents included all the land in controversy; and, then, for the purpose of repelling the presumption of a prior grant to those under whom the tenants claimed, or any of them, he gave in evidence the record of the ejectment first above mentioned, wherein the special verdict set forth the true state of the title under which the tenants claimed, and excluded all presumption of any patent prior to his own. And he set forth all the evidence, that adduced by the tenants as well as that adduced by himself, in a demurrer to evidence, which he tendered; but the tenants refused, and the court would not compel them, to join in it. To this Norvell filed exceptions. Upon the evidence set forth in the demurrer to evidence, several questions of fact arose: Whether Norvell’s entries were made on the land held by the tenants? Whether the patents under which he claimed, covered it? *42&c. There was a general verdict and judgment for the tenants. Norvell again appealed. And another special court of appeals, in December 1823, declaring that the judgment of the former special court, 6 Munf. 233, was the law of, and no longer questionable in, this case, held that the circuit court ought to have compelled the tenants to join in Norvell’s demurrer to evidence; and, therefore, reversed the judgment, and remanded the cause, with directions that the verdict should be set aside, and the tenants compelled to join in the demurrer. Norvell v. Camm, &c., 2 Rand. 68.

In February 1824, the case of Whittington v. Christian, (Id. 353,) was decided by the regular court of appeals; ^wherein the heirs of John Christian, in ejectment brought against Whittington, claimed 1000 acres of the 3926 acres of land, granted by the patent of September ’55, to James Christian, John Christian and William Brown: they claimed under John Christian, the son of John the original patentee, and one of the petitioners, at whose suit the general court, in ’74, had declared the patent of ’55 forfeited. Whittington claimed under Norvell, who claimed this tract of 1000 acres, under three patents, dated in ’97, upon surveys made in ’95 and ’96, and who, and those claiming under him, had held the land ever since. In this case, then, the same questions arose, which were presented in the case of Norvell v. Camm, 6 Munf. 233, and which were then decided in favour of Norvell: Whether the land in question, having been granted in ’55, and having been afterwards, in ’74, adjudged forfeited and re-vested in the crown, was waste and unappropriated land subject to location on a treasury warrant? if not, Whether, nevertheless, the commonwealth’s legal title therein passed to Norvell, by virtue of the patents granted to him in ’97? And the court upon the fullest consideration, decided both points against Norvell: it held, moreover, that the petitioners, at whose suit, in ’74, the lands were adjudged forfeited by the original patentees of ’55, and their heirs or assignees, were even now entitled, by right of preemption, to claim grants for the lands so forfeited, and that such grants, when issued, would relate back to the date of the original patents of ’55.

Immediately, after the first decision of the special court of appeals in Norvell v. Camm, 6 Munf. 233, Warwick and wife and Mrs. Camm (her husband was now dead) preferred their petition to the superiour court of chancery of Lynchburg, setting forth the rights under which they claimed; charging, that Norvell’s gránt of November ’97, embracing the tract of 433 acres (or part of it) claimed and held by him, was fraudulently, surreptitiously and illegally obtained, upon the false suggestion, that the land thereby granted was waste and unappropriated land, subject to location *and grant upon treasury warrant; and praying a scire facias and certiorari, to have the patent certified to the court, examined, and repealed. And, in May 1824, after the second decision of the special court of appeals in Norvell v. Camm, 2 Rand. 68, remanding that case to the circuit court, and after the contrary decision in Whittington v. Christian, Id. 353, they exhibited their bill in the same court of chancerj', setting forth a full history of the controversies at law between them and Norvell, and all the facts which had been developed in the progress of them-; the pendency of Norvell’s writ of right in the circuit court, then standing on his demurrer to evidence; the points presented by the demurrer; the. principle settled by the judgments of the two special courts of appeals, in Norvell v. Camm, as the law of that particular case, no longer to be questioned, that Norvell’s patents cannot be impugned at law, but are only voidable in equity; and the direct opposite principle settled by the regular court of appeals in Whittington v. Christian, as the law of the land, that those patents are not only voidable in equity, but void at law: charging, that Norvell’s patents of November ’97 and June 1813 were obtained fraudulently, surreptitiously, illegally, and upon false suggestion: and praying, that the patent of November ’97 might be examined and repealed by the chancellor; that, meanwhile, Norvell might be injoined from farther proceedings on his writ of right in the circuit court, till the subject could be examined and determined in equity; and that the court might order a new trial of the mise joined in the writ of right, wherein Norvell should be inhibited from using that patent in support of his claim.

The injunction was awarded, the 21st May 1824.

Norvell, in his answer, denied, that his patents had been obtained fraudulently, surreptitiously, illegally, and upon false suggestion. He stated some matters of fact, which (he said) had not been heretofore adduced, in the trials of the suits at law, and which evinced his innocence of any actual fraud; and he referred to the records of three other controversies *he had had (besides those that had been brought by appeal to the court of appeals) concerning the validity and regularity of the patents he had obtained, for the lands included in the patent of ’55 to the two Christians and Brown, all of which were determined in his favour; and, alleging that the plaintiffs here were privies to the parties there, he insisted that those decisions concluded the main question, whether the lands thereby granted to him, were in point of law subject to location and grant upon treasury warrants. But, if this question were still open, he insisted, that the lands granted by the patent of ’55, adjudged by the general court in ’74 to be lapsed, forfeited, and re-vested in the crown, but not re-granted to the petitioners at whose suit the forfeiture was declared, were lands subject to location and grant upon treasury warrant, under the land laws, at the time the grants thereof to him emanated: in short, he controverted the opinion of the court of appeals, on this point, in Whittington v. Christian.

This answer was filed the 9th May 1825, and on the 21st of the same month, Norvell moved the court to dissolve the injunction ; *43on which the chancellor took time to advise till the next term.

A'general replication to the answer, was put in at the rules, 25th May 1825; and commissions for taking depositions were awarded to both parties.

No depositions were filed by either.

The plaintiffs exhibited the record of Norvell’s writ of right against them, which contained the record of their previous ejectment against him. The defendant exhibited the record of a suit in the superiour court of chancery of Richmond, in which John and Charles Christian were plaintiffs and Norvell defendant, and in which some of the grants obtained by Norvell for parcels of the 3926 acres granted by the patent of ’55, were impeached, and .the lands claimed by John and Charles Christian, as in justice their property; and their bill was dismissed in September 1807. And that record contained two other records; the one of a caveat *prosecuted by Charles Christian against Norvell, in the district court of Charlottesville, to prevent the issuing of a grant to him of the very parcel of land (it appeared) for which he afterwards obtained the patent of November ’97, the validity of which was now controverted by Warwick and wife and Camm, which caveat was dismissed in September ’97; the other, the record of a cav.eat prosecuted by Norvell against John Christian, in the same district court, to prevent the issuing of a grant to him of the 1000 acres of land (it appeared) that was in controversy'in Whittington v. Christian, on which caveat judgment was given for Norvell in April ’99.

At the rules in September 1825, this cause was regularly set for hearing.

And, at the ensuing October term, the chancellor made the following interlocutory order: “This day came the parties by their counsel, and the court having maturely considered the premises and the arguments of counsel, doth order, that the injunction awarded the plaintiffs in this cause (Warwick and wife and Camm) on the 21st May 1824, to restrain the defendant (Norvell) his agents &c. from further proceeding in the action instituted by him against them, in the circuit court of Amherst and by the judge of that court removed to the circuit court of Lynchburg, stand dissolved, as an act of this day, unless the plaintiffs shall at the next term of the circuit court of Lynchburg, confess a judgment for the 433 acres of land in the bill mentioned, as claimed by them, or so much thereof as may be comprised in the defendant’s grant sought by the present bill to be repealed.” From this order Warwick and wife and Camm appealed to this court.

The cause was argued by Johnson, for the appellants, and Stanard, for the appellee.

I. Johnson pressed the court, very earnestly, to enter into a consideration of the merits of the cause, and put an end to this long protracted controversy. All the materials for ^forming a judgment upon the merits, were in the record, and were before the chancellor at the time he made the interlocutory order: the parties had filed no depositions in the long interval allowed them for the purpose; it was obvious, neither had any parol evidence to adduce; all their evidence was documentary, and contained in their exhibits. And though a motion to dissolve the injunction, was made at May term 1825, which the chancellor took time to consider till- the next term, yet before the next terms the cause had been set for hearing, and stood then for hearing: therefore, the chancellor ought to have taken it up as upon a hearing, instead of taking it up on the motion to dissolve the injunction. But, even if he was right in taking it up, on the motion, the motion itself presented the merits to him for decision; for Norvell had moved for a dissolution of the injunction, generally, not for a conditional dissolution unless judgment should be confessed in his action at law. If the chancellor might and ought to have decided the merits, this court may and ought to do so. Besides, this court has often, in cases where the merits of a controversy were really open to full view, though not in point of form regularly before it, availed itself of the opportunity to express its opinion upon them, and thus to put an end to further expensive and vexatious litigation; and if this were ever proper in any case, it was proper in this. He, therefore, proceeded to examine, succinctly, the main point in controversy, the regularity and validity of Norvell’s patent of ’97; and shewed, that the decision of Norvell v. Camm, 6 Munf. 233, determined that it was examinable, and might be annulled, in equity; and that the solemn decision of Whittington v. Christian, 2 Rand. 353, condemned it as void.

Stanard, for the appellees,

did not wholly decline the discussion of the merits; but he said, it Was improper to discuss them ; for they were not now before the court. The chancellor had not considered them, or made any decree touching them. His order only settled a point of practice. The sole province of this court was to revise that order; its jurisdiction %as altogether appellate; and if, instead of revising the order the chancellor made, the order appealed from, this court should decide upon matters, on which the chancellor did not decide, but on the contrary carefully avoided the decision of, it would exercise original, not appellate, jurisdiction.

II. As to the conditional order dissolving the injunction, Johnson insisted, that the chancellor ought not, in such a case as this, to have imposed upon the plaintiffs in equity, the condition that they should confess judgment in the action at law. Warwick and Camm had a right to have the validity of Norvell’s patent, upon which alone he could sustain his claim at law, examined in equity, where only it was examinable, without relinquishing any grounds of defence, wholly distinct from the merits of the patent, which might avail them at law. The bill in equity impeached Norvell’s title: but the chancellor would not entertain them there, for that purpose, unless they would surrender their own : thus giving to a holder of a patent, impugned as surreptitiously and illegally obtained, the advantage of avoiding every other diffi*44culty, and every objection to his claim, save only the objection to the regularity of the patent, and of avoiding too, the merits of his adversary’s independent claim of title; and laying a party seeking, upon equitable grounds, to prevent his opponent from using a wrongful patent against him at law, under the necessity of foregoing any and every rightful defence he might have, available to him at law, triable only at law, and wholly distinct from the matters preferred to the court of equity as grounds for relief. This was, in effect, to denjT the plaintiffs their remedy in equity, not upon condition that they should wave their legal remedy for the same right, but that they should wave other rights.

If the matters preferred to equity for relief against proceedings at law, be the sole ground on which the party praying such relief, claims right, the chancellor ought to require him to abandon his defence at law, by a confession of judgment; but if, besides the grounds for relief in equity, he *have distinct and substantive grounds of defence at law, not cognizable in equity, he ought not to be required to confess judgment at law. Suppose one action of debt brought on several bonds, and the defendant to have complete defence at law as to all but one of the bonds, and, as to that, to prefer his bill in equity, alleging that it was obtained of him by fraud, and praying a discovery of the fraud, an inhibition to make use of the fraudulent bond at law, and a stay of proceedings at law till this matter can be heard in equity: must he, in order to entitle himself to this equity, confess judgment for all the debts claimed of him in the action at law?

In the practice of the english chancery, where relief is asked against a claim asserted at law, and no defence available at law is pretended, the chancellor does not injoin the proceeding in the action to judgment: his injunction inhibits execution on the judgment when obtained. But when it is the object of the bill in equity, to obtain matter of defence to be used at law, the court stays the proceedings in the action at law. 1 Madd. Chan. 130-134; 2 Id. 218-19; 1 Newland’s prac. in Chan. 217-223; 2 Harr. Chan. prac. 171-8; Partington v. Hobson, 16 Ves. 220; Appleyard v. Seton, Id. 223; Earnshaw v. Thornhill, 18 Ves. 485; White v. Steinwacks, 19 Ves. 83; Hindman v. Taylor, 2 Bro. C. C. 7; Revet v. Braham, Id. 639, note (a).

Norvell claimed in his writ of right a tract of 433 acres of land; one unascertained part, under his patent of November ’97; another, under his patent of June 1813. The chancellor’s order of dissolution required Warwick and wife and Camm to confess judgment for that part of the laud covered by the first patent: for the part of the land claimed under the last patent, Norvell was left to get judgment if and when he can. So, if this order be complied with, two judgments, must be rendered at law; one for one parcel on the tenants’ confession, and another for the other parcel, for the demandant or for the tenants, according to the judgment of the court as to the right; which would be irregular and anomalous.

*Stanard said, that as to the difficulty of rendering two judgments in the same action at law, there would be the same difficulty in suing out two executions on the same judgment, one immediately for the part as to which. no relief was asked in equity, the other after the decree in equity, for the part as to which relief was sought there, if the decree should deny the relief. [Green, J., said, a question of this kind was considered in Taylor v. Beck, 3 Rand. 316, and his opinion then was, that, upon a partial cognovit actionem, no judgment ought to be rendered till the whole should be tried, and then one judgment given as to the whole.] Stanard said, the chancellor had, in truth, done more for the plaintiffs than he ought, in allowing them to confess judgment in part: he ought to have required them to confess judgment for the whole.

The bill in this case was not a bill for the discovery of matters to be used as a defence in the action at law; it was a bill for substantive relief in equity, upon equitable grounds, with a view to use, not facts discovered, but the relief obtained upon them in equity, as a defence at law. On bills for discovery of matter to be used on a trial at law, the proceedings at law may be stayed, till the discovery be obtained in equity; but in such bills, there should be no prayer for substantive relief; if there be, the bill is demurrable for that cause. On a bill for relief in equity against a claim asserted at law, there was no instance of an injunction awarded to prevent the plaintiff at law from proceeding to trial and judgment. And the authorities cited for the appellants, all shewed, that whenever a party resorts to a court of equity, for substantive relief against a claim asserted at law, he must submit himself to the jurisdiction of the chancellor, intirely and without reserve: if he ask relief in equity, after judgment at law, the chancellor invariably requires, as the condition of his interference, a release of errors at law; if before judgment, a confession of judgment, which is a release of errors.

*He denied the propriety, in this case, of granting any injunction to prevent the plaintiffs at law from proceeding to trial and judgment, or, indeed, that there was any reason or occasion for one.

*

Injunctions. — The principal case is cited in Lawrence v. Bowman, 15 Fed. Cas. 84, which case holds *contra.*See monographic *note*on "Injunctions” appended to Claytor v. Anthony, 15 Gratt. 518.

PER CURIAM.

Although the cause was set for hearing after the motion to dissolve the injunction, and before the conditional order dissolving it (which is the order appealed from), the cause has not been heard in the court of chancery on its merits; and either party has yet the right to produce new evidence. To pronounce any decree here, on the merits, would be to take original and not appellate jurisdiction.

As regards the order dissolving the injunction on the condition stated, the general rule is, that when a party comes into a court of equity to be relieved against proceedings at law, he must confess judgment at law, and rely solely on the court of *45equity for relief. Anon. 1 Vern. 120, 1 Madd. Chan. 132. Nor is there any thing in the peculiar circumstances of this case, to take it out of the rule. Indeed, it does not appear, that there was any cause for an injunction, except to restrain the defendant in equity, after judgment obtained by him at law, from turning the tenants out of possession, before the validity of the patent on which his legal title depended, shall be examined and decided on, in the court of chancery; and the relief, after the confession to judgment, will be as ample as in ordinary cases. If Norvell’s patent be vacated, the injunction will be perpetuated as to the land covered by it, or he may be decreed to convey his title under it, to the plaintiffs in equity.

Decree affirmed.