Root v. Woolworth/Opinion of the Court
It is not necessary to notice or consider separately the numerous assignments of error presented by the appellant. They may be reduced to the following propositions: (1) That the court had no jurisdiction to entertain the bill, because it is in the nature of an ejectment bill, and that there is a full and adequate remedy at law; (2) that there was fraud on the part of Morton and his attorney in obtaining the former decree of 1873, by concealing the fact that Morton, before the beginning of his suit against defendant, had transferred the premises to his brother, William S. T. Morton; (3) that there was such defective description of the premises in the Morton suit and the original decree as rendered that decree inoperative to vest the title of the land in controversy; and (4) the defendant's adverse possession of the property.

In support of the assignments of error covered by the first proposition, it is urged on behalf of appellant that the suit should be treated and regarded as an ejectment bill to recover the possession of real estate, such as a court of equity cannot entertain in favor of a party holding a legal title like that which the complainant asserts. It is undoubtedly true that a court of equity will not ordinarily entertain a bill solely for the purpose of establishing the title of a party to real estate, or for the recovery of possession thereof, as these objects can generally be accomplished by an action of ejectment at law. Hipp v. Babin, 19 How. 271; Lewis v. Cocks, 23 Wall. 466; Ellis v. Davis, 109 U.S. 485, 3 Sup. Ct. 327; Killian v. Ebbinghaus, 110 U.S. 568, 4 Sup. Ct. 232; Fussell v. Gregg, 113 U.S. 550, 554, 5 Sup. Ct. 631.

If the bill in the present case could be properly considered as an ejectment bill, the objection taken thereto by the defendant would be fatal to the proceeding; but, instead of being a bill of this character, it is clearly a supplemental and ancillary bill, such as the court had jurisdiction to entertain. Shields v. Thomas, 18 How. 253, 262; Thompson v. Maxwell, 95 U.S. 391, 399; Story, Eq. Pl. §§ 335, 338, 339, 429.

It is well settled that a court of equity has jurisdiction to carry into effect it own orders, decrees, and judgments, which remain unreversed, when the subject-matter and the parties are the same in both proceedings. The general rule upon the subject is thus stated in Story, Eq. Pl. (9th Ed.) § 338:

'A supplemental bill may also be filed, as well after as before a decree; and the bill, if after a decree, may be either in aid of the decree, that it may be carried fully into execution, or that proper directions may be given upon some matter omitted in the original bill, or not put in issue by it, or by the defense made to it, or to bring forward parties before the court, or it may be used to impeach the decree, which is the peculiar case of a supplemental bill, in the nature of a bill of review, of which we shall treat hereafter. But, where a supplemental bill is brought in aid of a decree, it is merely to carry out, and to give fuller effect to, that decree, and not to obtain relief of a different kind on a different principle; the latter being the province of a supplementary bill in the nature of a bill of review, which cannot be filed without the leave of the court.'

Under this principle, Morton could undoubtedly have brought the bill to carry into effect the decree rendered in his favor against Root, and it is equally clear that his assignee or privy in estate has a right to the same relief that Morton could have asserted. On this subject, it is stated in Story, Eq. Pl. § 429: 'Sometimes, such a bill is exhibited by a person who was not a party, or who does not claim under any party to the original decree, but who claims in a similar interest, or who is unable to entertain the determination of his own rights till the decree is carried into execution, or it may be brought by or against any person claiming as assignee of a party to the decree.' The appellee in the present case occupies that position, and he should not, any more than Morton, to whose rights he had succeeded, be put to the necessity of instituting an original or independent suit against Root, and relitigate the same questions which were involved in the former proceeding.

The jurisdiction of courts of equity to interfere and effectuate their own decrees by injunctions or writs of assistance, in order to avoid the relitigation of questions once settled between the same parties, is well settled. Story, Eq. Pl. (9th Ed.) § 959; Kershaw v. Thompson, 4 Johns. Ch. 609, 612; Schenck v. Conover, 13 N. J. Eq. 220; Buffum's Case, 13 N. H. 14; Shepherd v. Towgood, Turn. & R. 379; Davis v. Bluck, 6 Beav. 393. In Kershaw v. Thompson the authorities are fully reviewed by Chancellor Kent, and need not be re-examined here.

It is said, however, on behalf of the appellant, that the original decree only undertook to remove the cloud upon the title, and did not deal with the subject of possession of the premises, and that the present bill, in seeking to have possession delivered up, proposes to deal with what was not concluded by the former decree. This is manifestly a misconception of the force of the original decree, which established and concluded Morton's title as against any claim of the appellant, and thereby necessarily included and carried with it the right of possession to the premises as effectually as if the defendant had himself conveyed the same. The decree, in its legal effect and operation, entitled Morton to the possession of the property, and that right passed to the appellee as privy in estate.

In Montgomery v. Tutt, 11 Cal. 190, there was a decree of sale, which did not require or provide for the delivery of possession of the premises to the purchaser. Subsequently, the defendant refused to surrender possession, and a writ of assistance was sought by the purchaser to place him in possession of the premises under the master's deed. Field, J., delivering the opinion of the court, said:

'The power of the court to issue the judicial writ, or to make the order and enforce the same by a writ of assistance, rests upon the obvious principle that the power of the court to afford a remedy must be coextensive with its jurisdiction over the subject-matter. Where the court possesses jurisdiction to make a decree, it possesses the power to enforce its execution. It is true that in the present case the decree does not contain a direction that the possession of the premises be delivered to the purchaser. It is usual to insert a clause to that effect, but it is not essential. It is necessarily implied in the direction for the sale and execution of a deed. The title held by the mortgagor passes under the decree to the purchaser upon the consummation of the sale by the master's or sheriff's deed. As against all the parties to the suit, the title is gone; and as the right to the possession, as against them, follows the title, it would be a useless and vexatious course to require the purchaser to obtain such possession by another suit. Such is not the course of procedure adopted by a court of equity. When that court adjudges a title to either real or personal property to be in one as against another, it enforces its judgment by giving the enjoyment of the right to the party in whose favor it has been decided.'

The principle thus laid down is directly applicable to the present case.

The bill, being ancillary to the original proceeding of Morton against Root, and supplementary to the decree rendered therein, can be maintained without reference to the citizenship or residence of the parties. There is consequently no force in the objection that the court below had no jurisdiction in this case because the appellee and the appellant were both citizens of Nebraska. Krippendorf v. Hyde, 110 U.S. 276, 4 Sup. Ct. 27; Pacific R. Co. v. Missouri Pac. Ry. Co., 111 U.S. 505, 4 Sup. Ct. 583.

It is next contended on the part of the appellant that the decree sought to be carried into execution is void because there was fraud on the part of Morton in concealing from the court the fact that he had transferred the premises in August, 1869, to his brother, William S. T. Morton. That conveyance, as set up in the answer, was duly recorded in the register's office of Douglas county prior to the filing of Morton's bill against the appellant. It is not shown in the answer why the appellant did not avail himself in the former trial of this transfer, of which he had constructive notice. Nor does it appear from any averments in the answer, or from the proofs, that his rights were in any way prejudiced or affected thereby. He was not prevented by that transfer from exhibiting fully his own case, or setting up his superior title to the premises, which was the subject-matter of the contest between Morton and himself.

The appellant could not, by a direct proceeding, have impeached the former decree for this alleged fraud, because, even if it were sufficient to invalidate that decree, he shows no reason why it was not interposed or set up in the former suit. The facts set up in the answer relating to the conveyance of 1869 from Morton to his brother do not, of themselves, constitute such a fraud as would be sufficient to vacate the decree in a direct proceeding to impeach it; and certainly it cannot be collaterally attacked in an answer, as the appellant has sought to do, after such a lapse of time, and with no valid excuse given for the delay. Hammond v. Hopkins, 143 U.S. 224, 12 Sup. Ct. 418.

But, aside from this objection to this defense, it is clearly established by the proof in the cause that, before Morton instituted his suit against Root, a writing was executed between himself and his brother, William S. T. Morton, which operated to vacate the conveyance of August, 1869, and to revest the title to the property in Oliver P. Morton, so that there was actually no lack of title to the premises in Oliver P. Morton at the date of the institution of his suit against Root. The objection interposed by the defendant, therefore, is clearly wanting in any force or merit.

In respect to the next position assumed by the defendant, that the description of the property was so defective as not to vest Morton with any title to the premises in controversy, it is sufficient to say that the same point was set up in the former suit, but was overruled, because the testimony given by surveyors clearly established that the omission of the word 'east' from the second call of the description in no way affected the identification of the property, and that by reversing the calls the word 'east' would be necessarily included in the description. The same testimony, in substance, was introduced in this case, and established that the description in the sheriff's deed to Morton fully identified the land in question.

As to the remaining contention, that the appellant had been in adverse possession of the premises since 1869, it appears from the proof in the cause that he did not re-enter or take possession thereof until 1888. The statute of limitations, therefore, does not constitute any bar to the complainant's right to maintain the bill. But, aside from this, the appellant stands in the same position now that he did in the former suit, when it was decreed that he had no right, title, or interest in the property. If, since that decree, he has inclosed a part of the land, cut wood from it, or cultivated it, he would be treated and considered as holding it in subordination to the title of Morton and his privy in estate, until he gave notice that his holding was adverse, and in the assertion of actual ownership in himself. In his position, he could not have asserted adverse possession, after the decree against him, without bringing express notice to Morton or his vendees that he was claiming adversely. Without such notice, the length of time intervening between the decree and the institution of the present suit would give him no better right than he previously possessed; and his holding possession would, under the authorities, be treated as in subordination to the title of the real owner. This is a wellestablished urle. Jackson v. Bowen, 1 Wend. 341; Burhans v. Van Zandt, 7 Barb. 91; Ronan v. Meyer, 84 Ind. 390; Jeffery v. Hursh, 45 Mich. 59, 7 N. W. 221; Jackson v. Sternbergh, 1 Johns. Cas. 153; Doyle v. Mellen, 15 R. I. 523, 8 Atl. 709; Zeller's Lessee v. Eckert, 4 How. 289.

We are of opinion that the decree below was clearly correct, and should be affirmed. 

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