Reed v. Izburn

2 Del. Cas. 674

• Court: Court of Chancery of Delaware
• Decided: January 15, 1822
• Status: Published

Opinion

To this application

the Chancellor

returned the following answer directed to John Wales, Esq., solicitor of John Reed.

January 15, 1822.

Sir,

The affidavit of John Reed v. Jonathan Izbum has not laid a sufficient ground for a writ of injunction.

First, the title of John Reed is not set out. The affidavit states that the land sold by the Sheriff to Reed was the property of James Bradford. It does not appear from this what estate Bradford had in the land, nor, of course, what estate was purchased by Reed.

Second, it does not appear that the Sheriff has conveyed any title to Reed. The purchaser says that he complied with the terms of sale; but what these terms were do not appear.

Third, it appears from the affidavit that Izburn is in possession under an adverse title, or by some agreement by which he claims to hold the land against Reed. Does not the plaintiff then, by this affidavit, state himself out of the court as to the injunction, according to Lord Eldon, 6 Ves. Jr. 51, Pillsworth v. Hopton? See 4 Burr. 2324, 2400; 1 Bro.C.C. 57; 6 Ves.Jr. 789; 8 Ves.Jr. 89; Mitf.Pl. 123, 124; Coop.Eq.Pl. 149, 150.

Fourth, the affidavit does not state that waste has been committed, but that trees have been cut and felled since the sale, as the deponent has reason to believe from his own observation. This is not an affidavit that trees were cut and felled since the sale, but it is the belief or conjecture of the deponent. Suppose he were mistaken in his observation as to the time the trees were cut, which is possible. Neither does it bring the charge home to Izburn. It is still conjecture that Izburn or his servants felled the trees. Besides, trees might have been felled for firewood and for the necessary purposes of the farm. The mere act of cutting trees will not make a case of waste.

Fifth, it is not stated that Izburn actually threatens to commit further waste; but the plaintiff only believes and apprehends from conversation that he will. This is not sufficient. There should be actual threats, or something done since the sale, indicating an intention to commit waste. What were the threats? What has he said or done? The facts, or words, or threats, should be stated for the Chancellor to judge and not to be obliged to rest on the conclusions of the plaintiff.

No objection is made as to form, but the words, “who being duly sworn,” are very loose, and are the assertion of the Register, he judging whether the party was duly sworn. The method preferred is, “who being sworn on the Holy Evangelists of Almighty God,” being equivalent to the form said by Lord Hale to be proper, viz, tactis sacrosantis Dei Evangeliis, when the person sworn is a Christian.

I should be glad to have a bill with the whole case, before an injunction (where an adverse title, be it what it may, is alleged) is ordered.

I am, Sir, your most obedient and very humble servant,

Nicholas Ridgely.

Note. 4 Burr. 2324, 2400, injunctions to stay waste are never granted but upon a clear right. If moved for on filing the bill, the right must appear clearly by affidavit. 1 Bro.C.C. 57, Whitelegg v. Whitelegg, motion for an injunction to stay waste upon an affidavit generally that plaintiff was entitled to the fee simple of the estate, and that was committed. Refused by Lord Chancellor, for a particular title must be set out; upon this being done, and the only opposition by a similar affidavit to the first on the part of the defendant, motion granted. 6 Ves.Jr. 51, Pillsworth v. Hopton, injunction to restrain waste not granted against defendant in possession claiming by an adverse title. 6 Ves.Jr. 789, injunction not granted unless there is positive evidence of title. See 8 Ves.Jr. 89. 7 Ves.Jr. 309, injunction cannot be had upon the mere apprehension that the defendant means to do a great deal of mischief, by going etc. There must be some fact or threat, not mere belief. 7 Ves.Jr. 417, “I never would grant an injunction upon an affidavit stating, that the deponent verily believes, the defendant is about to cut timber,” Lord Eldon.