Church, Ch. J.
The plaintiffs allege, that they were owners of certain premises in the city of Hartford, as the devisees and heirs at law of William H. Marsh, deceased. That the authorities of said city, as long ago as 1845, caused a side-walk to be laid out and constructed in front thereof, and assessed upon the heirs of said Marsh, for the expenses of the same, a large sum of money, for which the city has claimed, and still claims, a lien upon said premises, by virtue of the provisions of the statute laws relating to the city [495]*495of Hartford : that the plaintiffs, not knowing nor believing, that any such lien or incumbrance upon said property existed, or could be legally claimed, on the 10th day of September, 1850, sold and conveyed the same, by deeds of warranty, with the usual covenants of seisin and warranty, and that the same were free from incumbrance, to Alfred Smith and Charles Brainard, of said Hartford: that said Smith and Brainard decline and refuse to pay to the plaintiffs the full amount of the purchase money, for which said premises were sold, but withhold the same, by reason of the aforesaid pretended lien of the city of Hartford.
The plaintiffs do not admit the existence of any such lien, and pray, that the city disclose the grounds of their claim and the amount of their lien, if they have one, and that the premises be discharged from any such lien or incumbrance; and that said city be enjoined against prosecuting the same, if none is found to exist; or if otherwise, that, upon being paid by the plaintiffs the amount of the same, the city be ordered to release to them all rights and claims to said premises.
The county court to which the bill was preferred, found, that the city of Hartford had no such lien as was claimed, and made its decree accordingly, upon the coming in of the report of the committee, to whom the matter had been referred. Whereupon this motion in error was filed and allowed.
The principle upon which this application is made, is one well recognized by courts of equity; the fear that the claim set up by the defendants, may, at some time, be used injuriously to the plaintiffs’ rights, and that it throws a cloud or doubt over a title in which they are interested. 2 Sto. Eq. p. 5, 6. § 694. 705.
But to the application of this principle to the present case, the defendants, for various reasons, object.
1. That, if there is no lien upon the premises, as the plaintiffs insist, this is apparent upon the face of the proceedings of the common council of the city of Hartford, as they are set forth upon the record, and as claimed by the plaintiffs in their bill. The defendants insist, that this case is assimilated to those in which applications have been made for the delivery up or cancelling of bonds, deeds and other instruments, not voidable merely, but void, for causes apparent on the face [496]*496of them. And it is true, that in some such cases, courts of have refused to interfere; but this, we believe, has been where interference has been seen to be entirely unnecessary and the application, in its tendency or purpose, vexatious and expensive, as where the instrument sought to be delivered up and cancelled, was connected with nothing else, and affected nothing else; as a note or bond without a stamp, or illegal on its face, and thus harmless, in whatever place it might be.
There is a want of harmony in the decisions on this subject. We will refer to a few leading ones, relied upon by the defendants, the better to show the real principle of equity, and the distinction between those cases and the present.
The case of Simpson v. Lord Howden, 3 Mylne & Craig, 99. was an application to cancel an agreement, which the applicant claimed was void on its face, as against public policy, and on which an action at law was then pending. The objection was, that, in such case, a court of equity had no jurisdiction, and the bill was dismissed. The Lord Chancellor said, that he knew of no case going such a length—that there was no precedent for it—that in the case before him, he could do nothing, but merely order the agreement to be delivered up. No consequential relief was sought, no account to be taken, &c. Whether the defendant proceed in the action he has brought, or bring another action, the same questions must be raised and decided, as are raised in the bill. But by permitting the action to proceed, it will afford to the parties the most speedy, cheap and satisfactory means of deciding the question between them. It is very certain, that no necessity existed for the application in this case; and that, in its nature, it was vexatious.
In the case of Pearsol v. Elliott, 6 Peters, 95. the supreme court of the United States refused to order a deed of conveyance of land to be given up, which, it appeared, had not been duly acknowledged, by one of the grantors, who was a feme covert. But it appeared, in that case, that, before the bill was instituted, the deed had been adjudged void, in an action at law between the same parties. The ground assumed by the court, was, that the paper was unimportant, and could not avail its possessor, because it had been declared void by judgment of court, and therefore, the bill was unnecessary [497]*497and expensive; and no other ground of equitable interference was pretended.
The case of Van Duren v. The Mayor, &c. of New-York, simply recognizes the abstract doctrine of the case of Simpson v. Lord Howdon, in 3 Mylne & Craig, without referring to any other case or principle, not even to the able opinion of Chancellor Kent, in Hamilton v. Cummings, 1 Johns. Ch. R. 517.
While we acknowledge the propriety and reasonableness of the decisions referred to, we see other facts and peculiarities in this case, clearly distinguishing it from them.
This bill does not ask for the bare cancellation of a deed. The city of Hartford had instituted certain proceedings, which, they claimed, had resulted in fixing a lien upon the property of the plaintiffs-it insisted upon the lien, and the plaintiffs had right to suppose, from some other cause or reason, than the records here produced, disclosed. This claim, whether legally existing or not, worked an injury to the plaintiffs, by creating such a doubt as, in fact, to cause purchasers under them to withhold payment. In this state of things, the plaintiffs could indeed have sued Smith and Brainard, and have been met with some defence, or by an application for an injunction against their further proceedings, and thus become involved in an expensive litigation in the dark; or they could ask, as they have done, to have this cloud cleared away.
This bill asks for a discovery, not frivolously, but for the purpose of information, of the grounds of the continued claim of the defendants, and to compel them to relinquish it, if no lien existed, and to enable the plaintiffs to redeem, if it did. In reference to such a case, Judge Story
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Church, Ch. J.
The plaintiffs allege, that they were owners of certain premises in the city of Hartford, as the devisees and heirs at law of William H. Marsh, deceased. That the authorities of said city, as long ago as 1845, caused a side-walk to be laid out and constructed in front thereof, and assessed upon the heirs of said Marsh, for the expenses of the same, a large sum of money, for which the city has claimed, and still claims, a lien upon said premises, by virtue of the provisions of the statute laws relating to the city [495]*495of Hartford : that the plaintiffs, not knowing nor believing, that any such lien or incumbrance upon said property existed, or could be legally claimed, on the 10th day of September, 1850, sold and conveyed the same, by deeds of warranty, with the usual covenants of seisin and warranty, and that the same were free from incumbrance, to Alfred Smith and Charles Brainard, of said Hartford: that said Smith and Brainard decline and refuse to pay to the plaintiffs the full amount of the purchase money, for which said premises were sold, but withhold the same, by reason of the aforesaid pretended lien of the city of Hartford.
The plaintiffs do not admit the existence of any such lien, and pray, that the city disclose the grounds of their claim and the amount of their lien, if they have one, and that the premises be discharged from any such lien or incumbrance; and that said city be enjoined against prosecuting the same, if none is found to exist; or if otherwise, that, upon being paid by the plaintiffs the amount of the same, the city be ordered to release to them all rights and claims to said premises.
The county court to which the bill was preferred, found, that the city of Hartford had no such lien as was claimed, and made its decree accordingly, upon the coming in of the report of the committee, to whom the matter had been referred. Whereupon this motion in error was filed and allowed.
The principle upon which this application is made, is one well recognized by courts of equity; the fear that the claim set up by the defendants, may, at some time, be used injuriously to the plaintiffs’ rights, and that it throws a cloud or doubt over a title in which they are interested. 2 Sto. Eq. p. 5, 6. § 694. 705.
But to the application of this principle to the present case, the defendants, for various reasons, object.
1. That, if there is no lien upon the premises, as the plaintiffs insist, this is apparent upon the face of the proceedings of the common council of the city of Hartford, as they are set forth upon the record, and as claimed by the plaintiffs in their bill. The defendants insist, that this case is assimilated to those in which applications have been made for the delivery up or cancelling of bonds, deeds and other instruments, not voidable merely, but void, for causes apparent on the face [496]*496of them. And it is true, that in some such cases, courts of have refused to interfere; but this, we believe, has been where interference has been seen to be entirely unnecessary and the application, in its tendency or purpose, vexatious and expensive, as where the instrument sought to be delivered up and cancelled, was connected with nothing else, and affected nothing else; as a note or bond without a stamp, or illegal on its face, and thus harmless, in whatever place it might be.
There is a want of harmony in the decisions on this subject. We will refer to a few leading ones, relied upon by the defendants, the better to show the real principle of equity, and the distinction between those cases and the present.
The case of Simpson v. Lord Howden, 3 Mylne & Craig, 99. was an application to cancel an agreement, which the applicant claimed was void on its face, as against public policy, and on which an action at law was then pending. The objection was, that, in such case, a court of equity had no jurisdiction, and the bill was dismissed. The Lord Chancellor said, that he knew of no case going such a length—that there was no precedent for it—that in the case before him, he could do nothing, but merely order the agreement to be delivered up. No consequential relief was sought, no account to be taken, &c. Whether the defendant proceed in the action he has brought, or bring another action, the same questions must be raised and decided, as are raised in the bill. But by permitting the action to proceed, it will afford to the parties the most speedy, cheap and satisfactory means of deciding the question between them. It is very certain, that no necessity existed for the application in this case; and that, in its nature, it was vexatious.
In the case of Pearsol v. Elliott, 6 Peters, 95. the supreme court of the United States refused to order a deed of conveyance of land to be given up, which, it appeared, had not been duly acknowledged, by one of the grantors, who was a feme covert. But it appeared, in that case, that, before the bill was instituted, the deed had been adjudged void, in an action at law between the same parties. The ground assumed by the court, was, that the paper was unimportant, and could not avail its possessor, because it had been declared void by judgment of court, and therefore, the bill was unnecessary [497]*497and expensive; and no other ground of equitable interference was pretended.
The case of Van Duren v. The Mayor, &c. of New-York, simply recognizes the abstract doctrine of the case of Simpson v. Lord Howdon, in 3 Mylne & Craig, without referring to any other case or principle, not even to the able opinion of Chancellor Kent, in Hamilton v. Cummings, 1 Johns. Ch. R. 517.
While we acknowledge the propriety and reasonableness of the decisions referred to, we see other facts and peculiarities in this case, clearly distinguishing it from them.
This bill does not ask for the bare cancellation of a deed. The city of Hartford had instituted certain proceedings, which, they claimed, had resulted in fixing a lien upon the property of the plaintiffs-it insisted upon the lien, and the plaintiffs had right to suppose, from some other cause or reason, than the records here produced, disclosed. This claim, whether legally existing or not, worked an injury to the plaintiffs, by creating such a doubt as, in fact, to cause purchasers under them to withhold payment. In this state of things, the plaintiffs could indeed have sued Smith and Brainard, and have been met with some defence, or by an application for an injunction against their further proceedings, and thus become involved in an expensive litigation in the dark; or they could ask, as they have done, to have this cloud cleared away.
This bill asks for a discovery, not frivolously, but for the purpose of information, of the grounds of the continued claim of the defendants, and to compel them to relinquish it, if no lien existed, and to enable the plaintiffs to redeem, if it did. In reference to such a case, Judge Story says: “Where the party is seeking a discovery, as the means of arriving at relief, by the delivery up or cancellation of a void instrument, it seems difficult to understand why a court of equity, having acquired a full jurisdiction in the case for discovery, should not, when that is obtained, proceed, for the purpose of preventing multiplicity of suits, to make a decree for the relief sought. But where no discovery is sought, and the naked case made by the bill, is for a mere delivery up or cancellation of the instrument, not averring any defect of proof, but [498]*498simply stating, that the instrument is void, there might be more colour for some scruple in entertaining the bill.” 2 Sto. Eq. 9. 11. § 699.
Aside from any discovery sought, this bill is not merely quia timet, but the claim of the defendants is working a present injury, by actually preventing purchasers from making payment of the stipulated price to the plaintiffs, by reason of the cloud upon their title. 2 Sto. Eq. 11. § 700. In the case of Simpson v. Lord Howdon, an action at law was pending, to try the same question; and in the case of Pearsoll v. Elliott, the same question had been already determined; but here the plaintiffs were left in the dark and in doubt, because the defendants still insisted upon their lien, and yet instituted no means to enforce it. They have left the plaintiffs to the expence of determining their rights, only in this way, and by this bill; and now, not until after the county court, upon this hearing, has decided, that no such incumbrance exists, the defendants very ungraciously say, yes, this is true, and so obviously true, that the plaintiffs have never been in danger, and have had no just occasion to bring us into a court of equity. Indeed, the defence is, that as, after an expensive and long defended application in equity, the plaintiffs have succeeded in establishing their claim, this is the very reason why they are not entitled to relief. If the defendants had demurred to the bill at first, acknowledging their want of a lien, their defence would have appeared better. We are impressed with the good sense of the remarks of Chancellor Kent, on this subject, in Hamilton v. Cummings, 1 Johns. Ch. R. 517. in which case all the cases are reviewed. He says, “Perhaps the cases may all be reconciled, on the general principle, that the exercise of this power is to be regulated by sound discretion, as the circumstances of individual cases may dictate,” &c.
2. Another suggestion of the defendants is, that these plaintiffs have adequate remedy at law, by action for the stipulated price of the land sold to them, and there being no incumbrance, there can be no defence. To oust a court of equity, for this reason, of its jurisdiction, the remedy at law must be obvious, adequate and complete; and, as this objection raises a question of jurisdiction, it should be considered [499]*499as a preliminary one, and should have been taken by demurrer to the bill, or by the answer, unless the court, from defect of power, was incompetent to grant the relief prayed for. Here the objection is only suggested, after a full hearing by a committee, and for the first time, on this motion in error. The objection now comes too late. Grandin v. Le Roy, 2 Paige’s Ch. R. 509. Fulton Bank v. New-York & Sharon Canal Co., 4 Paige’s Ch. R. 131. Le Roy Pratt, Id. 77. Underhill v. Van Cortland, 2 Johns. Ch. R. 369. Mitford’s Pl. 27. note. Besides, the plaintiffs had no remedy at law against these defendants. We are not aware of any case which decides, that if a plaintiff has an equity against the defendant, a court of equity loses its jurisdiction, because there may be a remedy at law, at the election of the party, against a stranger, or some other person.
3. Objection is further made, that the plaintiffs, or some of them, have sold and conveyed the lands, and have now no interest in them, which a court of equity can protect. It is true, they do not own the land itself, but they have an essential interest in the question of title, by which the purchasers under them hold the land, by reason of the covenants for title in their deeds. It is obvious, that their interest is as direct as if they now held the land.
Lastly, the claim is made, that here is a misjoinder of parties, and a want of parties. From the view we have taken of the interest of some of these plaintiffs, by reason of the covenants in their deeds, and the interest of others still in the lands themselves, we perceive no misjoinder; and if there had been, such misjoinder appearing on the bill itself, and not coming out merely at the hearing, we incline much to the salutary principle adopted by this court, as to the objection for want of parties, in the case of Lee v. New-London Bank, 11 Conn. R. 120. and other cases, as applicable here, and that this objection comes too late after the appointment of a committee, and a full investigation of the merits of the bill. In such cases, the defendants in equity ought to be considered as waiving these objections, and ought not to be permitted to take their chance against the plaintiffs on the merits, and then, if unsuccessful, to resort to such a defence.
[500]*500We shall advise, that there is no error in the decree of the county court.
Waite, J., was of the same opinion.
Storrs, Hinman and Ellsworth, Js., being interested, did not sit in this case.
Judgment affirmed.