City of Natchez v. Vandervelde , 31 Miss. 706 ( 1856 )

Handy, J.,

delivered the opinion of the court.

The material facts stated in the bill in this case are in substance, that in the year 1837, the City of Natchez purchased from Rutherford and MNeil, certain real estate within its corporate limits, described as lots No. 4, and part of lots No’s 1 and 3, in square No. 30, on the plat of the city, for the purpose of a burying ground, and as such to be kept by the city, and the same was conveyed to them by deed, under which they took possession, and have continued in possession for the purpose specified, until dispossessed, as stated afterwards ; that at the time of that purchase, the Roman Catholic Society had possession of lot No. 2, in square No. 30, under a deed from one Barland, made in the year 1802, that lot being described in the deed as “ the lot in said town which has been used as a Roman Catholic burying ground that the Catholic burying ground never extended beyond lot No. 2, and at the date of the deed to the Roman Catholic Society, the square No. 30 had been divided into the lots above-mentioned; that in the year 1841, the trustees of the Roman Catholic Society, by deed, conveyed to Joseph Chanche, Roman Catholic Bishop of Natchez, the -same premises conveyed by the deed of Barland to them, described as “the Roman Catholic burying ground;” that Chanche died in July, 1852, having by his will devised the premises to Anthony Blanc, who, in the year 1853, by deed, conveyed the same to James 0. Yandervelde, Bishop of Natchez, who took, and has since held possession; that in the year 1843, Chanche instituted an action of ejectment against the City of Natchez, claiming title to the whole of block No. 30, and when that suit came on for trial, it was admitted, on the part of the plaintiffs, that the Roman Catholic Society, in whose behalf the action was brought, were not entitled, under the deed from Barland, to any part of lots No’s 1, 3, and 4, or to more than lot No. 2; which admission was made on the testimony of certain named witnesses, who are since deceased, who testified that the Roman Catholic burying ground was on lot No. 2; and it was also admitted by the defendants, that their enclosure included part of lot number two, embracing sixty feet front, and running back one hundred and sixty feet to lot No. 4, and to that extent the plaintiff was entitled to recover; that when the title of the parties to their respective parts of the property was first ascertained, it was proposed that a survey should be had to ascertain the respective parts, but this was adandoned, upon the understanding between the parties, that the plaintiffs would only demand, or take possession of, the part to which they were entitled as above stated, and acting in faith of that agreement, that the defendant made a written agreement which was filed, stating that both parties claimed title under Barland, and permitted a judgment to be rendered for the entire premises claimed in the declaration; that afterwards a survey of the premises was duly made by the consent of the parties, in accordance with the previous agreement, made when the judgment was rendered, by which it was found that a part of lot No. 2, being sixty feet front, and running back one hundred and sixty feet, was then, and at the time of the rendition of the judgment, within the enclosure of the defendants’ lots; and in compliance with the previous agreement, the city gave up possession thereof to Chanche, in behalf of the plaintiff in the judgment, who soon afterwards erected a large edifice upon it, and he and his successor have since held it in possession, and put a division fence upon what was settled to be the boundary line between lot No. 2 and the adjoining lots of the same square; and in virtue of the same agreement, the city, some time after the survey, with the knowledge and acquiescence of Chanche, made costly improvements on lot No. 4, and the parts of lots Nos. 1 and 8, belonging to them.

The bill charges that the judgment would not have been rendered but with the understanding above stated, as to the limited extent of the plaintiffs’ claim, and that no further claim would be attempted to be enforced under the judgment; that in violation of that agreement, Chanche sued out a scire facias to revive the judgment,’and to have it executed as to the residue of the lots embraced in its terms, and notwithstanding the effort of the city to resist it, upon the equitable grounds above stated, the judgment was revived, and execution has been issued, under which the city has been turned out of possession, and the possession delivered to Vandervelde, who has used it for improper purposes, and defaced it as a burying ground, and is about to excavate and remove the earth, destroying the graves, and thereby causing a forfeiture of the estate of the city, by putting an end to the purpose and use for which the premises were conveyed to them.

The prayer is for a specific performance of the agreement, for a restoration of the premises to the possession of the city, for an injunction against setting up the judgment in ejectment, or holding possession to the premises claimed by the complainant, and against damage to the premises, by removing the fences, earth, or otherwise interfering with the property.

The defendants filed a general demurrer to the bill, which was sustained; from which decree this appeal is taken.

The first objection taken to the bill is, that it seeks to enforce a specific performance of a parol agreement concerning lands, which is void under the Statute of Frauds.

The substance of the agreement, as stated in the bill, is, that upon the trial of the action of ejectment, which was for all the lots, it was ascertained by the plaintiffs, and admitted on their part, that they were only entitled to lot No. 2; and on the part of the appellant, it was admitted that the city had, within its enclosure, part of that lot, and thereupon it was agreed that the recovery should really be confined to the part of lot No. 2, in the possession of the appellant, and that the judgment, which in terms embraced all the lots, should not be enforced against lots Nos. 1, 3, and 4, which were then in the possession of the appellants, and under that understanding the judgment was rendered; and accordingly, that the Roman Catholic Society, through its bishop, took possession of the part of lot No. 2, embraced in the agreement, without execution issued, and by the voluntary surrender of the appellants, and by consent,- the appellants retained possession o'f the other lots.

We do not consider this agreement to be within the Statute of Frauds.

It is not a contract for the sale or conveyance of lands, nor does it contemplate any act to be done by the plaintiffs in the action, by way of assurance or conveyance of the title to the lots held by the city. It was simply an agreement as to the execution of the judgment, and as to the extent to which it should operate. No title to the city was intended to be derived from it; for under the written agreement made between the parties, they both claimed title to their respective parts of the land from Barland independently, neither claiming any right through or under the other. The judgment did not ipso facto vest a title in the plaintiffs, but only entitled them to recover possession of the premises to the extent to which it might rightfully operate. By its terms it covered all the lots; but by the agreement, its operation was restricted within certain limits. The obvious purport of the agreement was, not that it should entitle the defendant to the lots in her possession and claimed as her property, but that the plaintiffs should not attempt to enforce their execution. Its effect was entirely negative. The extent to which the plaintiffs should enforce the judgment was a very different question from their right and title to the lots claimed by the defendants, and which by the agreement was virtually admitted to be the property of the defendants ; and that the judgment had relation to the possession of land, does not render the agreement as to the extent to which it should be enforced, the less a mere agreement as to the operation of the judgment, or make it an agreement in relation to the sale or conveyance of lands within the Statute of Frauds.

Such being the true character of the agreement, the judgment was as much subject to its control as a judgment affecting the possession of personal property, and could no more be enforced in violation of an agreement upon which it was rendered, than such a judgment.

But giving to it all the force to which it is entitled, as an agreement directly affecting the title to lands, it is plain that it is but an agreement between parties claiming title to adjoining lands, that each should take and hold possession of specific parts, with possession delivered under that agreement. Such an agreement is neither within the letter nor spirit of our Statute of Frauds, which merely requires that “ any contract for the sale of lands, tenements, or hereditaments, or the making of any lease thereof for a longer term than one year,” shall be in writing. It is in effect a settlement of the claims of parties to the parts of the lands to which they were respectively entitled, and a surrender of all claim to any other part than that agreed to belong to each. There is no substantial difference in principle, between such an agreement, when carried out by taking possession in severalty under it, and a parol partition of lands, between parties in possession and claiming title, accompanied and followed by possession by each party of the part conceded to him ; and such partitions are held to be valid and binding upon the parties. Jackson v. Harder, 4 Johns. 203; Slice v. Derrick, 2 Richardson, 627; Wildey v. Bonney, decided at this term, ante, 644. And upon the same principle, a parol agreement, fixing boundaries, followed by actual possession under it, would not be within the statute, and would bind the parties. The agreement, when carried out by a division and possession in these cases, would conclude the parties;. and the agreement in this case, followed by the possession taken and held by the parties in pursuance of it, cannot be distinguished from the principle of these cases.

The next objection taken to the bill is, that the appellants’ remedy, if any, was at law, by action of ejectment, or by motion in the Circuit Court, for restitution of the possession of the lots of which the appellees had taken possession, without right or title. It is insisted in behalf of the appellants, that there was no clear, unembarrassed, and adequate rem'edy at law.

With respect to the remedy by a new action of ejectment, it is true that the recovery in the former action would not bar an action by the appellants, to recover the possession of the lots from the appellees, to which they had no title. But according to the allegations of the bill, this remedy would be attended with difficulties, and would be of doubtful success.

The title of the appellants is alleged to be under a deed from Rutherford and MNeil, made in 1817, and possession held under it. Possession under that title for such a length of time, would have been sufficient to prevent the plaintiff’s recovering in the original action of ejectment. But it was admitted by the parties, by a written agreement made in that cause,' and as the bill alleges, in order to effect the amicable adjustment which was intended to be made, that both parties claimed title under Barland; and it further appears that Barland conveyed to the plaintiffs by deed dated in 1802, the lots which were used as a Roman Catholic burying ground. Whether that deed embraced the lots claimed by the appellants, depended upon the testimony of witnesses, who were introduced on the trial in the action of ejectment, as is alleged, and who proved that it only embraced lot No. 2. But these witnesses are since dead, and the appellants have lost the means of making that proof. If upon the trial of an ejectment brought by the appellants against the appellees, the latter were to introduce this agreement in writing, that both parties claimed title from Barland, and show the deed from Barland to the appellees and possession by them, under that deed, of a part of the premises, claiming the whole, this evidence would tend strongly to destroy the appellants’ claim under the deed of Rutherford and MNeil, and would probably defeat a recovery, unless it could be shown that the Roman Catholic burying ground conveyed by the deed of Barland, only embraced lot No. 2. And according to the allegations of the bill, that proof is lost, or at least, is rendered very doubtful, by the death of the witnesses upon whose testimony it was shown on the former trial. These disadvantages under which the appellants labor, have been occasioned, as is alleged, by the admissions and agreements made on the trial between the parties, and through confidence in the good faith of the plaintiffs in that suit, with a view to an amicable settlement of their respective rights, and after the claim of the appellant had been established. If the statements of the bill be true, the legal remedy is doubtful and embarrassed, and the appellants have been placed in that position by the violation of an agree-in the former suit, which was intended as a settlement of the respective rights of the parties. Under such circumstances, they should not be driven to a doubtful remedy, and have a right to insist in equity upon the agreement.

As to the remedy by motion in the Circuit Court for restitution, it is manifest that was not available in this case. Where the declaration and judgment are general, and not definite, in describing the premises, and the plaintiff takes under his habere facias more than he is entitled to recover, the defendant may have restitution by motion in the court from which the writ issued. But not so, when the premises are specifically described in the judgment, as was the case here. Adams, Eject. 241; Jackson v. Rathbun, 3 Cow. 291.

But moreover, no execution was issued to enforce the agreement, and it was voluntarily carried out by the parties. Afterwards, when the scire facias was issued to revive and enforce the judgment beyond the agreement, the appellants resisted it by the defences set forth in this bill; but they were held to be insufficient, it is presumed, because they were equitable in their nature, and not allowable to annul a judgment in a court of law.

Finally, as to the general equity of the case, the bill shows in effect that the respective l'ights of the parties to the several lots, were agreed to be settled amicably in the ejectment suit, and that, though a general judgment for all the lots was rendered for the plaintiffs, they were only entitled to lot No. 2, and that possession of that lot should be delivered up to them without execution; that possession was surrendered by the appellants accordingly, the other lots being retained — under the agreement and with the assent of the plaintiffs — by the appellants; that the appellants’ right to the lots retained by them was established on the trial, but that the judgment was not rendered accordingly, because the plaintiffs in the action agreed that their rights should be amicably settled as agreed on, and the city relied upon the good faith of the plaintiffs, in consequence of which the means of establishing its rights are either lost or rendered doubtful, and the plaintiffs, after having obtained all that they were entitled to and had agreed to receive, have availed themselves of the general terms of the judgment to deprive the appellants of their portion of the property which they retained under the settlement made between the parties.

If these allegations be true, it is manifest that it is a case of unconscientious advantage, which a court of equity should redress. In equity, the agreement of the parties and their acts in carrying it out, must be regarded, under the circumstances of the case, as not only an agreement that the judgment should not be enforced against the lots claimed by the appellants, but as a settlement of their respective rights to the lots of which they had possession after the agreement was carried out. For the agreement, as stated, was to be carried out without legal process, and was actually carried out by amicable partition. Under such circumstances, the acts of the appellees are equivalent to a partition, and conclude them from any further claim upon the lots claimed by the appellants.

The decree must be reversed, the demurrer overruled, and the defendants below required to answer the bill within sixty days.