The Chancellor.
The first ground taken for dissolving the injunction is rather preliminary, having no connection with the main question, and applying to only a part of the case. It relates to the judgment and execution in the first suit; and is, that the application is too late ; that the party being conversant of all the facts before the trial, made no defence at law, nor any application for the aid of this court. The proposition as laid down by the defendant’s counsel, appears to me to be too broad, and would seem to lead to the conclusion, that in no case will a court of equity interfere after verdict and judgment, where a party was apprised of the facts on which his equity rested, and did not file his bill before judgment rendered. The authorities cited do not go this length. The case of Lansing v. Eddy, 1 John. C. R. 49, was a case of usury, were the defendant, after judgment and execution, sought for a discovery, and to obtain a.return of the excess beyond the principal sum loaned and interest. An application for an injunction was refused, because the defence of usury could have been made at law, and no reason was assigned why it was not. In Simpson v. Hart, 1 John. C. R. 98, the injunction was dissolved on the ground that the same matter had been examined by a court having competent power and jurisdiction to pass upon it. The case of Drage v. Strong, 2 John. C. R. 230, was on a motion to dissolve the injunction upon the coming in of the answer. It appeared that the party, having lost the opportunity of a new trial at law by his own default, came into this court to obtain a new trial, and the injunc[483]*483tion was dissolved. In Williams v. Lee, 3 Atk. 223, lord Hardwicke held, that the court would not always relieve a verdict where the defendant submits to try it at law first, when he might by a bill of discovery have come at the facts by the plaintiff’s answer under oath, before any trial at law was had. It is evident that these cases all go on the principle of laches in the party who seeks redress, because he has not brought his facts properly before the court by witnesses, or has not procured through the oath of his adversary, by a bill of discovery, matters that might have availed him on the trial at law ; and they go upon the further principle, that if the facts had been made to appear they would have constituted a defence at law. But if the facts are such as constitute no defence at law, though properly produced; if they are matters of which a court of law can take no cognizance, then, I apprehend, there can be no objection to the bill on the ground that it was not filed pending the suit.
The complainant’s equity in this case rests on matters of trust, such as are not cognizable in courts of law, and can avail nothing there against a legal title. A simple bill of discovery in such case would have been useless and nugatory, and if all the facts had been plainly proved it could not have varied the result in point of law. In Bateman v. Miller, 1 Sch. and Lef. 201, Ld. Redesdale makes it a part of the rule that prevents this court from interfering with a matter which had been tried in another tribunal, that it be one over which the court of laic had full jurisdiction.
The true rule is given by Spencer, X, in Me Ticker v. Wolcott, 4 John. R. 533 :—“ It is an undeniable proposition that a defence which might be made at law, and which a party will either omit or decline to make, cannot be the basis of a suit in equity, unless it be in cases of fraud, accident or trust peculiarly within the province of a court of equity, or where the jurisdiction of the legal tribunal cannot admit the defence.” Inasmuch, then, as the matters which are the foundation of the complainant’s suit are such as were peculiarly within the province of a court of equity, the injunction cannot be dissolved on that ground.
It is sought, however, to dissolve the injunction, because the equity of the complainant’s bill has been fully answered. The [484]*484fulness of the answer is disputed in several particulars ; and it is contended, in the first place, that the defendant has not denied the payment of the five pounds by Chapel to Lydecker and For-shee : that by this payment Chapel became the beneficial owner, and the complainant has succeeded to his right, and therefore the charge is material. There certainly is not a full denial of this part of the bill. It is not sufficient for the defendant to say, he does not know it or does not believe it. That may all be true, and yet the fact charged remain uncontradicted. If, therefore, Chapel was setting up this matter against the claim of the defendant, I should have no hesitation in saying that the equity of the bill in this behalf was not answered. But it is set up by a third person, and I do not see that he has any equitable right to avail himself of it. He does not set out in his bill any contract, either legal or equitable, whereby he claims right to succeed to the equities of Chapel. He shows no title or conveyance, no pri-vity either of estate or contract between himself and Chapel, or between Chapel and Lydecker, under whom he claims immediately. On this subject the bill charges, that the said Garret A. Lydecker, for some time previous to his death, was in the possession, use and enjoyment of the said turning-mill and dam, so erected by the said Jesse Chapel, and held or claimed to bold the same under the said Jesse Chapel, and so held the same during his life, and after his death the same was held, used and enjoyed by his children or some of them, without any interruption or objection by or from the said Abraham Forshee or the said Abraham Yan Riper, till the complainant purchased the said premises.
The allegation that he held or claimed, to hold under him, is exceedingly vague and unsatisfactory, and seems almost to imply a doubt in the mind of the complainant himself as to his rights. It certainly is not sufficient to entitle him to claim the right that Chapel obtained by his purchases and possession. If there is any thing in it, it must be in the possession which he alleges that Lydecker and his children always enjoyed of this property up to the time they sold it to the complainant. But this charge of possession is distinctly denied in the answer; not only so, but it is expressly asserted that Chapel gave up the possession to the defendant, and that after that no person possessed it except for a [485]*485short time, when one Waite used it, paying or agreeing to pay rent to Lydecker and the defendant equally. I think, therefore, that although the charge of the payment of the five pounds is not fully answered, yet, as the complainant has not shown himself entitled to claim the equity growing out of that transaction, it will not stand in the way of dissolving the injunction.
In the second place, it is insisted that the defendant has not fully answered the charge respecting the agreement between himself and the complainant, as set forth in the bill, viz : that if the complainant wmuld give his aid and direction in locating certain factories, he, the defendant, was about erecting, that the defendant would make no further difficulty about flowing back the w'ater, and that all matters should be settled. The defendant, in his answer, denies that he ever made any such bargain as is set forth in the complainant’s said bill, respecting the employment of the said complainant to advise in the location of his said cotton mill and dam, and then goes on to state what the facts actually were.
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The Chancellor.
The first ground taken for dissolving the injunction is rather preliminary, having no connection with the main question, and applying to only a part of the case. It relates to the judgment and execution in the first suit; and is, that the application is too late ; that the party being conversant of all the facts before the trial, made no defence at law, nor any application for the aid of this court. The proposition as laid down by the defendant’s counsel, appears to me to be too broad, and would seem to lead to the conclusion, that in no case will a court of equity interfere after verdict and judgment, where a party was apprised of the facts on which his equity rested, and did not file his bill before judgment rendered. The authorities cited do not go this length. The case of Lansing v. Eddy, 1 John. C. R. 49, was a case of usury, were the defendant, after judgment and execution, sought for a discovery, and to obtain a.return of the excess beyond the principal sum loaned and interest. An application for an injunction was refused, because the defence of usury could have been made at law, and no reason was assigned why it was not. In Simpson v. Hart, 1 John. C. R. 98, the injunction was dissolved on the ground that the same matter had been examined by a court having competent power and jurisdiction to pass upon it. The case of Drage v. Strong, 2 John. C. R. 230, was on a motion to dissolve the injunction upon the coming in of the answer. It appeared that the party, having lost the opportunity of a new trial at law by his own default, came into this court to obtain a new trial, and the injunc[483]*483tion was dissolved. In Williams v. Lee, 3 Atk. 223, lord Hardwicke held, that the court would not always relieve a verdict where the defendant submits to try it at law first, when he might by a bill of discovery have come at the facts by the plaintiff’s answer under oath, before any trial at law was had. It is evident that these cases all go on the principle of laches in the party who seeks redress, because he has not brought his facts properly before the court by witnesses, or has not procured through the oath of his adversary, by a bill of discovery, matters that might have availed him on the trial at law ; and they go upon the further principle, that if the facts had been made to appear they would have constituted a defence at law. But if the facts are such as constitute no defence at law, though properly produced; if they are matters of which a court of law can take no cognizance, then, I apprehend, there can be no objection to the bill on the ground that it was not filed pending the suit.
The complainant’s equity in this case rests on matters of trust, such as are not cognizable in courts of law, and can avail nothing there against a legal title. A simple bill of discovery in such case would have been useless and nugatory, and if all the facts had been plainly proved it could not have varied the result in point of law. In Bateman v. Miller, 1 Sch. and Lef. 201, Ld. Redesdale makes it a part of the rule that prevents this court from interfering with a matter which had been tried in another tribunal, that it be one over which the court of laic had full jurisdiction.
The true rule is given by Spencer, X, in Me Ticker v. Wolcott, 4 John. R. 533 :—“ It is an undeniable proposition that a defence which might be made at law, and which a party will either omit or decline to make, cannot be the basis of a suit in equity, unless it be in cases of fraud, accident or trust peculiarly within the province of a court of equity, or where the jurisdiction of the legal tribunal cannot admit the defence.” Inasmuch, then, as the matters which are the foundation of the complainant’s suit are such as were peculiarly within the province of a court of equity, the injunction cannot be dissolved on that ground.
It is sought, however, to dissolve the injunction, because the equity of the complainant’s bill has been fully answered. The [484]*484fulness of the answer is disputed in several particulars ; and it is contended, in the first place, that the defendant has not denied the payment of the five pounds by Chapel to Lydecker and For-shee : that by this payment Chapel became the beneficial owner, and the complainant has succeeded to his right, and therefore the charge is material. There certainly is not a full denial of this part of the bill. It is not sufficient for the defendant to say, he does not know it or does not believe it. That may all be true, and yet the fact charged remain uncontradicted. If, therefore, Chapel was setting up this matter against the claim of the defendant, I should have no hesitation in saying that the equity of the bill in this behalf was not answered. But it is set up by a third person, and I do not see that he has any equitable right to avail himself of it. He does not set out in his bill any contract, either legal or equitable, whereby he claims right to succeed to the equities of Chapel. He shows no title or conveyance, no pri-vity either of estate or contract between himself and Chapel, or between Chapel and Lydecker, under whom he claims immediately. On this subject the bill charges, that the said Garret A. Lydecker, for some time previous to his death, was in the possession, use and enjoyment of the said turning-mill and dam, so erected by the said Jesse Chapel, and held or claimed to bold the same under the said Jesse Chapel, and so held the same during his life, and after his death the same was held, used and enjoyed by his children or some of them, without any interruption or objection by or from the said Abraham Forshee or the said Abraham Yan Riper, till the complainant purchased the said premises.
The allegation that he held or claimed, to hold under him, is exceedingly vague and unsatisfactory, and seems almost to imply a doubt in the mind of the complainant himself as to his rights. It certainly is not sufficient to entitle him to claim the right that Chapel obtained by his purchases and possession. If there is any thing in it, it must be in the possession which he alleges that Lydecker and his children always enjoyed of this property up to the time they sold it to the complainant. But this charge of possession is distinctly denied in the answer; not only so, but it is expressly asserted that Chapel gave up the possession to the defendant, and that after that no person possessed it except for a [485]*485short time, when one Waite used it, paying or agreeing to pay rent to Lydecker and the defendant equally. I think, therefore, that although the charge of the payment of the five pounds is not fully answered, yet, as the complainant has not shown himself entitled to claim the equity growing out of that transaction, it will not stand in the way of dissolving the injunction.
In the second place, it is insisted that the defendant has not fully answered the charge respecting the agreement between himself and the complainant, as set forth in the bill, viz : that if the complainant wmuld give his aid and direction in locating certain factories, he, the defendant, was about erecting, that the defendant would make no further difficulty about flowing back the w'ater, and that all matters should be settled. The defendant, in his answer, denies that he ever made any such bargain as is set forth in the complainant’s said bill, respecting the employment of the said complainant to advise in the location of his said cotton mill and dam, and then goes on to state what the facts actually were. The charge is simple, containing one distinct fact. The answer is equally simple, and denies the fact charged. It might have been more precise ; it might have stated there wits no such agreement as that stated in the bill, nor any other of the like nature and effect. But it is not so indefinite as was supposed on the argument. It was insisted there, that it amounted to nothing more than a denial that he made a bargain to the like effect, and did not amount to a denial that he made the bargain charged. I think otherwise ; and although, as before stated, the answer might have been more full and technical, I deem it to be sufficient in substance. It is direct, and without evasion. There were no specific charges, requiring a specific answer, and therefore the general answer was sufficient. Cowp. Plead. 313.
Again, under this head it is further insisted, that the answer is insufficient, because after denying that there was any such agreement as charged by complainant, it charges what the facts were. The mode is as follows : “ On the contrary, he expressly charges the facts to be, that the said stream,” &c. It was contended that this was not swearing to the matters charged, but only to the fact of the charge; or in other words, that the party [486]*486by that mode of answer, does not swear that the facts aie so, but only that he charges them to be so. I do not see it in that light. If a man in his answer charge certain facts or matters to exist, on which he intends to rely for his defence, and swears to the answer in the ordinary form, he swears to the truth of the facts, and not to the fact of the charge ; and if the facts as stated or charged are material, and not true, perjury may be assigned upon it.
In the third place, it is insisted, that the charge in the bill, that the defendant is but a mortgagee in possession, and the facts connected therewith, are not fully denied by the answer.
The bill and answer are both very diffuse on this part of the case. The bill first charges that the defendant is not a tenant in fee, but only, in equity, a mortgagee in possession, and that it was fully understood that the deed should be considered as a mortgage. To this the defendant answers, and denies that he is a mortgagee in possession of the said premises, as set forth by the complainant in his said bill. He then undertakes to detail the facts relating to the purchase. In this statement he says, that Forshee proposed to him and Henry A. Hopper to take a deed and pay off the incumbrances, and advance him some money, and to give him some two or three years to refund the same : that this defendant then informed him that he never bought property in that way, and would make no such bargain with him. He states further, that at the time the conveyance was made, there was no right of redemption reserved, but on the contrary that he refused to give any such right. This I consider to be a sufficient denial of the charge. It is then further charged, with more particularity, that Forshee applied to the defendant to assist him, he being then embarrassed, and proposed to give a mortgage to secure him, which the defendant refused to do unless Forshee would assume the payment of certain moneys due him from Forshee’s son, John Forshee, on a bond and mortgage, and would let that be put in the mortgage to be given by Forshee to the defendant; and that thereupon Forshee agreed to do so. This, as we have seen, has been already in part answered. As to that part of the charge relating [487]*487to John Forshee’s bond and mortgage, the defendant answers explicitly, and denies that that debt formed any part of the consideration of the purchase; and he denies that any thing was then said, to his knowledge, about the debt of John Forshee.
The bill further charges, that Forshee and wife at first objected to giving an absolute deed, but being threatened with suit by the defendant, he finally, though reluctantly, agreed to execute the deed, but upon the terms and conditions before mentioned. To this the defendant answers, and denies that he ever threatened to prosecute the said Forshee, or used any other means to induce him to sell the farm. It is then charged, that for two years and upwards Forshee continued to use and enjoy the property as his own, and received money from John A. Boyd, esq., or some other person, towards paying the debt and interest due him. To this defendant says, that Forshee occupied the farm, but agreed to pay rent: how much he was to pay the first year he does not recollect: that at the expiration of the first year he made a specific agreement writh defendant for another year, and agreed to pay for the whole time two hundred and sixty-two dollars and fifty cents, and to do certain repairs, and deliver possession on the first of April, 1820 : and that he then voluntarily delivered them up : and he expressly denies that he ever received from John A. Boyd, or any other person or persons, any money which he retained on account of interest due from the said For-shee, or which he ought to have credited thereon.
Upon looking very carefully into the bill and answer, I am of opinion that the answer, as to these matters, is sufficient, and that the complainant’s equity is denied. The answer might have been differently shaped, but it is not always easy to frame one so as to be above the reach of critical exception. By adhering too closely to the letter of the bill, an answer is oftentimes obnoxious to merited reproach. By taking what may be considered the spirit or substance of the bill, the precise point is sometimes evaded. In the one before me, I have not discovered any attempt at concealment or evasion; and as to the principal matters on which the complainant’s equity must rest, I consider it sufficiently full.
Lastly, the complainant’s charge that Forshee released to him [488]*488his equity of redemption; and it is objected that the defendant has not denied it. This is not denied ; on the contrary it is admitted; but it cannot influence the decision of this question. As the case now stands it is totally immaterial, and no equity can grow out of it.
Let the injunction be dissolved.