100
FEDERAL REPORTER.
to the practice of state courts, but aecording to the principles of common law and equity, as distinguished and defined in that country from which we derive our knowledge of these principles. And, although the form 'of proceedings and practice in the state courts shall have been adopted in the circuit courts of the United States, yet the adOptiPll 9fthe state practice must not be understood as confounding thepdnciplesof law and equity, nor as authorizing legal and equitable claims to De blended together in one suit.'" Thompson v. Rail1'O(td 00., 6 Wall. 134. In the case of Bennett v. Butt&lworth, 11 How. 669, Chief Justice TANEY said: . "The constitution of the in creating and defining the judicial power of the. general establishes this distinction between law and equity; and a pal'tywho ciaim$a legal title must proceed at law, and may, undoubtedly, proceed according to the forms of practice in such cases in the state court. But, if the.clairnis an eqUitable one, he must proceed according to the rules which thiS court prescribed, regulating proceedings in eq uity in the courts 01 the United States. " Therefore the demurrer _ sustained, and, with the exception stated is in the outset, the plea is stricken.
LANIER V.
AUSON and another.-
(GirctlU Gowrt, S. D.
Geo,.uia;, E. D. June 4, 1887.)
t. EQUITY-JURISDICTION.. S.
_ Equity will not entertain a bUl to enforce merely the legal title to land.
bJUJ:<CTlON-To R;ESTRAIN WASTE·.' . -
8·.
An'll.Ct of the general.assembly of Georgia, providing that in all applica,tions to ell'jolu the cutting of timber, or boxing the same-for turpentine Jlurposes, it be necessary to aver or prove insolven.cy, may be admmistered by the courts of the United States. In Equity. 'Demurrer to bill. Lanier & Anderson, for complainant. Garrard « Meldrim, for respondents.
(Syllabu8 by the Oourt.)
SPEER, J. Mary D. Lanier, a citizen oithe state of Maryland, brings 1:I.er bill against J. R. Alison, of Irwin county, and B. D. Britton, of Echols county, and alleges that she is the owner of lot of land No. 83, in the Thirteenth district .of Echols county, and lot of land No. 68, in the same district of Echols co:unty, containing 490 acres each; that the deedf were properly recorded; that during the life-time of her fa-
LANIER V. ALISON.
101
ther, Charles Day, he owned one lot and controlled the other, and took special pains to protect the lots from intrusion by squatters and other trespassers; that Alison & Britton addressed a letter to her father on the twenty-eighth of July, 1883, stating that they had been inforr,ued that he held the genuine title to the lots, and asking him to put a price on them. Her father replied that he was unwilling to lease them for turpentine purposes, but would sell them for $1.50 per acre. Notwithstanding this actual notice, and additional notice from one Frank Kirkland, her agent, that the true title was in her father, and a,letter from Henry C.Day calling Alison & Britton's attention to the former correspondence, the defendants, in December, 1883, entered on the lands, cut, hacked, and boxed the trees for turpentine purposes, and have continued to do so, injuring complainant $5,000, or other large sum; that complainant is remediless at law, because she cannot ascertain the amount of crude rosin, gum, and turpentine which has been taken from the land; and that equity should intervene to prevent a multiplicity of suits. She also alleges that the defendants have some pretended title which operates as a fraud on her title, and should be canceled. She prays for an injunction, for the production of the books and accounts, and also the deeds and other contracts in writing under which they claim the right to enter and use said lands, to be delivered up and canceled. Complainant waives discovery. To the bill is appended an abstract of the deeds upon which complainant relies, showing apparently a good title. Several amendments have been filed to the bill; one averring that Alison & Britton have executed mortgages on said land in favor of J. P. Williams, a citizen of Chatham county, state of Georgia,-one dated twenty-second June, 1883, for $4,821.43; another, twenty-third January, 1884, for 83,500; that these mortgages were in fraud of the right of complainant; that the mortgagee, J. P. Williams, had notice of complainant's title, because the deeds were recorded; that Alison & Britton are embarrassed, and it is doubtful whether they can pay their debts; that J. P. Williams has received and sold $5,000 worth of turpentine from said land, and that she is entitled to have an accounting from him, and prays that he may be made a party. The third amendment avers that complainant is informed and believes, and so charges, that Alison & Britton had no deed or claim of title when they entered on the land, but that their sale motive was to trespass and take the turpentine and other products of the pine forest; that they do not occupy the land continuously, but only during the turpentine season; that the lands are so remote and uninhabitable that she is unable, without ruinous expense, to prevent the encroachment and trespasses of the defendants. She also charges, upon information and belief, that Williams knew of her title, and of her father's. She finds that she is unable to prove the allegations of her original bill, strikes out the waiver of discovery, prays discovery, and propounds a number of interrogatories relating to the title of complainant, and to the .amount and value of the turpentine taken from the land. To this bill the defendants demur, because the complainant has a complete and adequate remedy at law, and because the bill is exhibited against several
102
defendants for several and distinct· matters, and is multifarious, and that the court has no jurisdiction. It is very evident that most of the relief sought by complainant is properly a matter for equitable cognizance. Equity will not entertain a bill merely to try and enforce the legal title to land. This is a bill for an account, and to restrain wastej and Lord ELDON is reported to have said that if "the plaintiff filed a bill for an account, and an injunction to restrain waste, stati11lg that the defendant claimed by a title his, he stated himself out of court as to the injunction." adverse This doctrine has been greatly modified in modern times, and it is now a common practice, in cases where irremediable mischief is being done or going to the destruction of the substance of the estate, such as the extraction of ores from a mine, or the cutting down of timber, or the removal of coal, to issue an injunction, though the title to the premises be in litigation. The authority of the court is in such cases, through its preventive writ, to preserve the property from destruction pending legal proceedings for the determination of the title. Erhardt v. Boaro, 113 U. S. 537,5 Sup. Ct. Rep. 565. The bill does not allege that Alililon & Britton are insolvent, but the legislature of Georgia, to meet a widely-prevalent injury of the character specified in the bill, on the thirteenth of October, 1885, enacted the following statute: ..Be it enacted by the general assembly that, from and after the passage of this act, in all applications to enjoin the cutting of timber or boxing the same for turpentine purposes, it shall notbe necessary to aver or prove insolvency, or that the damage will be irreparable: provided, the complainant has perfect title to the land upon wtiich the timber is situated, and shall attach a copy of the same as an exhibit to the bill: and provided, further, that the chancellor granting said temporary restraining order shall reqUire the complainant to give such bond as in his discretion he may deem proper (said bond to be approved of by the clerk of the superior court) to answer the damages, if any, which may be sustained by the defendant by reason of the granting of said injunction, which bond shall be held and taken as appeal-bonds; and if, on the final hearing of the cause, damages are adjudged against the complainant, jUdgment shall be entered on said bond as in appeal cases." Now, while it is true that alterations in the jurisdiction of state courts cannot affect the jurisdiction of the circuit courts of the United States, so long as the equitable rights themselves remain, yet an enlargement of equitable rights may be administered by the circuit court as well as by the courts of the state. HoUand v. Ohallen, 110 U. S. 15, 3 Sup. Ct. Rep. 495. And this statute may be entertained and enforced in an equity suit of which we otherwise have jurisdiction. Considering the premises, it is ordered that the demurrer be overruled, so far as the application for an injunction is concerned, and that the defendants show cause why an injunction on the terms of the statute above quoted, pendente lite, should not be granted. As to the prayers of the bill not relating to the injunction, the demurrer is sustained, and the complainant must proceed at law for the assertion of her title, and her claim for mesne profits and damages.
AMERICAN FREEHOLD LAND MORTGAGE CO.
11.
WALKER.
103 '11.
AMERICAN FREEHOLD LAND MORTGAGE CO. Oh' LONDON, Limited, WALKER and another. (Glrcuit Gourt, S.
n.
Georgla,
w: n.
June 18,1887.)
1.
EQUITY-REFORMATION OF INSTRUMENT-ScOPE OF DmcuE.
A court of equity of the United States will not, on a bill tiled to correct a formal defect in an instrument constituting a link in a chain of title, pass .upon the validity of the title itself. .
So POWER-DEFECTIVE EXEcuTION-ArDlm.
While generally the entire failure to execute a power will not be aided in equity, wllere the parties have begun to execute It, and the execution is de· fective through accident or mistake, equity may decree a complete and perfect execution. 8. SAME-EQUITY JURISDICTION. This is an extraordinary jurisdiction, but it will be exercised to further the meritorious equities of purchasers, including mortgagees, lessees, and credo . itors. 4. SAME-LIMITS OF JURISDICTION. Defects which will be corrected In the execution of a power are matters of form. such as the want of a seal or witnesses, or of signatures, and not mat· ters of substance or essence. CSgllabus by tlt6 Gour"}
InEquity. Demurrer. Martin ac Worrell and Hill ac Harris, for complainant. Patteraon ac Willingham, for defendants. SPEER, J. The allegations of complainant's bill are that the defend· ant Alice J. Walker made application to Sherwood, the agent of complainant, for a loan of 81 ,000 upon certain real estate as security. The loan was made, and Alice J. Walker, who was the owner of the land, executed and delivered to complainant a promissory note therefor, and a deed to secure the sUtn due thereon; that Alice J. Walker executed a power of attorney to her husband, Allen M. "Talker, to execute the deed, but by inadvertence the power of attorney was executed in the presence of one witness only, when, under the law of Georgia, two witnesses are required, where the power relates to the execution of titles to land. ThE'> bill prays that the formal defect in the power of attorney be corrected, and that the conveyance to secure the debt be held valid. To this bill the defendants demur generally, and for special demurrer insist that the deed under the power of attorney was made to Sherwood, and that the complainants were strangers to the transaction; and, further, that, because the power of attorney was defective, a court of equity would not, in correcting the power of attorney, pass upon the validity of the deed executed under it. As tothe first ground of demurrer, it is sufficient to say that the bill alleges that Sherwood was the agent of the complainant. So far as the last ground of demurrer is involved, the contention of the defendants is well founded. The court will not pass upon the validity of the title upon an equitable proceeding to correct an error in an instru-
