SEARS and others.
December 20, 1883.)
(Circuit Court, D. Neui Jer8ey.
BILL IN EQUITY FOR SETTLEMEN'l' OF TITLE AND PARTITION-MULTIFARIOUSNESS.
A bill in equity to determine and settle a dislJuted legal title, and for a partition of the land, is multifarious.
FOR PARTITlON RETAINED TILL TITLE IS SETTLED AT LAW.
A bill for partition will not lie when the legal title is in dispute, or when it depends on doubtful facts or questions of law; and when one is filed and the pleadings or proofs show a dispute about the legal title of the real estate, the tJ."Iual course is for a court of equity to retain the bill until the title is settled at law.
On Bill, etc.
James Buchanan, for the demurrer. W. S. Logan, contra. ,
NIXON, J. The bill of complaint has been demurred to for multifariousness, and the demurrer must be sustained. It appears from the prayer and the allegations of the bill that the complainant has and settle a disputed lefiled it for two objects: (1) to gal title ; and (2) for the partition of a. tract of real estate: In other · words, it asks the co;urt to ascertain who are the owners of the property and then to divide it according to the interest of the parties · as determined. Such a proceeding violates well-settled principles, and is against the practice of a court of chancery, unless the dispute is in regard to an equitftble title. A bill for partition will not lie when the legal title is denied, or where it depends on doubtful facts or questions of law. See Dewitt v. Ackerman, 2 C. E. Green, 215; Manners v. Manners, 1 Green, Oh. 384. Where one is filed, and the the legal title of the real pleadings or proofs show a dispute estate. to be divided, the usual course is for a court of equity to retain the bill until the title is settled at law. Hay v. Estell, 8 C. E. Green, 251 ; Obert v. Obert, 2 Stockt. 98; Wilkin v. Wilkin, 1 Johns. Ch. 111; Goxev. Smith, 4 Johns. Ch. 271. The counsel for defendant, on the argument, suggested that he was shut up to this course because he was in possession of the, premises and hence could not bring an action for ejectment to try the title. But provision is made for such a case by an act of the legislf!,ture of the' state of New Jersey entitled "An act to compel the ,determination of claims to real es·tate in certain cases, and to quiet the title to the same," approved )fa:rch 2, 1870. Rev. St. N.J. 1189. By the terms of that act all persons in the peaceable possession of. lands in New Jersey are authoriz.ed to bring Q., suit in tQ settle the title to said lands, and to clear up all doubts and disp)ltes concerning the same; the fifth section reserving to either party the right to apply to the court for an issue at law to try the validity of the claims or to settle the facts. My first impression was to allow complainant
NORTHERN R. R. v. OGDENSBURG & L. C. R. CO.
to amend his bill, conforming it to the requirements of the statute when such a suit is brought, and to try the title in the pending action. . But upon reflection I am of the opinion that the more proper course is to order the present bill to stand as a simple partition bill, and to give leave to the complainant, if he is in the peaceable possession of the premises, to institute another suit, under the provisions of the state statute, to ascertain and determine the title to the land. And it is so ordered.
NORTHEllN R. R. v. OGDENSBURG & L. C. R. 00.
(Circuit Court, D. New Hampshire.
REFORMATION OF CON-
EQUITY PLEADING-CRoss-BILL- DEMURRER-ANBWER 'rRACT.
It is not necessary to file a cross-bill to reform a contract which is already before the same court in equity at the suit of the other party; but the defendant' , should plead the facts relied upon by way of answer, even if they vary a written contract, and the court will enforce the contract as it is found to have been made or as it ought to be reformed, as t,he case may be.
In Equity. J. H. Benton, Jr., for complainants. S. Bartlett, for defendants. . LOWELL, J. The Ogdensburg & Lake Champlain Railroad Company was one of four parties to a contract made in 1871, by whioh it was intended to secure for 19 years the servioe of steam-boats to bring freight to Ogdensburg. The Ogdensburg Company, having in 1870 leased its road for 20 years to two of the other oompanies, partie,S to .tpeoontraot, had only an indirect and reversionary interest, iiithe arrangement; but th'at 'oompany advance, for the purpose of the contract, the sum of $600;000, whioh was to be repaid to it by the several railroad oompanies, parties to the oontraot of the third part, in the proportions of their gross reoeipts from the business brought to them by the line of steam-boats. The Ogdensburg pany afterwards made this ad vance. The oontract failed of its full effeotand came to an end in 1876, without fault on the part of any of the parties to it. At this time the Ogdensburg Company had received payment of only about one-third of its advance of $600,000. That oompany has since filed bills against some or all of the railroad companies, parties to the contract of the third part. A more particular statement of the contract will be found in O.qdimsburg & L.O. R. Co.v. Boston L. R . .co. 4 FED. REP. 64. In tlJ,at ca;se, the court, oonsisting of Mr. Justice CLIFFORD and the circuit judge, held on demlurer that the contract to repay the advances of the Ogdensburg Company waR a. severa.l one by each of the pa.rties of the third part, and that the