Gomez v. Gomez , 81 Hun 566 ( 1894 )

VAN BRUNT, P. J.

I concur in the conclusion arrived at by Mr. Justice PARKER that under the trust deed the trustees had no power to make the leases mentioned in the complaint in this action. But I do not agree that such power, not being conferred by the trust deed, could be given by any decree of the court of chancery or of the supreme court. The action which resulted in the judgment under which the defendants claim to shield themselves was not an action for the construction of the trust deed, but to supplement the same by a decree of the court granting the trustees therein named powers which it is conceded were not conferred upon them by such deed. I know of no authority in any court to supplement by its decree for the benefit of a life tenant powers which were not conferred by the instrument creating the trust. An inspection of the decree entered in the court of chancery shows conclusively that this was the nature of the action and of the relief which was attempted to be given. The decree reads: “This action having been brought to a hearing upon the bill and answer of the infant defendants, and on report of a master of this court to whom it was heretofore referred to ascertain and report as to the truth of the facts stated in the bill, and whether it was for the benefit of said infants that the prayer of the bill should be granted.” This alone shows that it was not an action for the construction of the trust deed. It then adjudges and decrees that the trustees and the survivor or survivors of them, and any trustee or trustees hereafter substituted, shall have full power with the consent and approbation of the complainants or the survivor of them (the complainants being the life tenant and her husband) to make and execute valid leases of the premises in question for the term of 21 years, with covenants of renewal for several successive terms of 21 years, making 84 years in all. In other words, the court attempted to confer powers upon the trustees which the original trust deed, it is admitted, did not do. It seems to me that the court of chancery had no jurisdiction to entertain any such action; and that infants cannot be deprived of the possession of- real estate belonging to them by any such proceeding upon the part of the life tenants for their own exclusive benefit. But it is not necessary to determine this question. There is another ground because of which the court should have refused to entertain this action. In cases of this description a court of equity only intervenes where there is no adequate remedy at law, or where irreparable damage will result. There is no allegation of irreparable damage in this complaint, and if there were it would not help the matter, because such could not be the fact. It is true that there is an allegation that there is no adequate remedy at law, but it is apparent that the plaintiff has a complete remedy at law. If he is entitled to the possession of these premises, and the action of the trustees was without authority, he may bring his action in ejectment, and recover possession, and thus be completely vested with his rights. This would require no intervention of any court of equity. There is no evidence aliunde the records which affected the question, and it is a familiar principle that equity will not intervene to remove even what is claimed to be a cloud upon a title, where the defect appears upon the face of the record which is claimed to be such cloud. The assessment cases are familiar instances of the application of this rule. Therefore there was no reason for any application to a court of equity. The plaintiff could bring his action of ejectment, and establish his rights, if he had any. The judgment should be affirmed, with costs.