Bassett v. Brown

100 Mass. 355

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1868
• Status: Published

Opinion

Colt, J.

The case stated by the plaintiff shows that he has a plain, adequate and complete remedy at law. A writ of entry will settle the title. Brown is in possession claiming title. A judgment in the plaintiff’s favor will establish his title against Brown and Pedick, and those claiming under them by convey anee made after the commencement of the action. Pratt v. Pond, 5 Allen, 59. Martin v. Graves, Ib. 601.

In Whittemore v. Cowell, 7 Allen, 446, cited by the plaintiff, a bill in equity was indeed sustained upon demurrer, one object of which was to set aside a conveyance of land procured by fraud; but in that case there was a mortgage given by'the fraudulent grantee to a bond fide mortgagee who was made party to the suit, and the rights of all parties could only be ascertained and protected in a court of equity Here it is charged that the mortgage to Pedick was without consideration, made for the purpose of keeping the land out of the plaintiff’s reach, and void. Nor does the plaintiff seek to compel a defendant to acknowledge satisfaction of a mortgage once valid. The equity jurisdiction of the court in such cases goes upon the ground that the mortgage is now or once was valid.

As to the money paid by the plaintiff to Brown to discharge an incumbrance on the land conveyed, it seems that the incumbrance was either created by the plaintiff, or was one which he was bound to remove, and which Brown undertook to pay fo him with the money so furnished. If it has been appropriated by Brown wrongfully, then the remedy is at law for money had and received.

The provisions of the Gen. Sts. c. 113, § 2, giving jurisdiction in equity where there are two or more parties having distinct rights which cannot be adjusted in one action at law, have no application. This is not a case where a judgment between two of the parties having distinct interests would leave open to one or both a controversy with a third party, and requiring proceedings in the nature of a bill of interpleader, to adjust the whole matter in one decree. Pool v. Lloyd, 5 Met. 528.

Demurrer sustained. Bill dismissed, without prejudice.