Summary
In Fulton v. Greacen, 36 N.J. Eq. 216 (at p. 223), it is said: "Where the lease, in plain terms, provides that it shall be void, or become void, if the lessee fails to pay rent, or keep any other covenant, a breach does not render it ipsofacto void, but merely gives the lessor a right to void it, which he may avail himself of or not, as he may chose to elect.
Summary of this case from Klein v. Journal Square Bank Bldg. Co.Opinion
11-09-1888
FULTON v. GREACEN et al.
Edward A. Day and John W Taylor, for complainant. Robert H. McCarter and Thomas IV. McCarter, for defendants.
(Syllabus by the Court.)
On motion for leave to file an original bill in the nature of a bill of revivor, and also on motion to dissolve an injunction.
Edward A. Day and John W Taylor, for complainant. Robert H. McCarter and Thomas IV. McCarter, for defendants.
VAN FLEET, V. C. The facts giving rise to the controversy in this case are stated with sufficient fullness in Fulton v. Greacen, 36 N. J. Eq. 216, to show the nature and extent of the dispute between the parties. For present purposes it is sufficient to say that the suit was originally brought by Elisha M. Fulton against John Greacen, Jr., to prevent Greacen from diverting water from a paper-mill which Fulton owned, and which water Fulton claimed a right to use to operate his mill. The water in question was supplied by the Morris Canal Company, and was carried from the canal to Fulton's mill by a raceway on Greacen's land. Greacen by his answer denied Fulton's right to the water, and admitted that he intended to deprive him of the use of it. The court, after hearing the parties, granted an injunction prohibiting the diversion of the water. Subsequently, and after the cause had been partially heard, the complainant was given leave to file an amended bill, for the purpose of bringing in another person as a party complainant, who, it appeared by the complainant's proofs, had such an interest in the subject-matter of the suit as to make him a necessary party. Afterwards the complainant also obtained leave to file a supplemental bill, for the purpose of laying before the court the fact that a deed executed by one of the complainant'spredecessors in title to a person under whom the complainant did not and could not claim, and the existence of which the defendant, by his answer, had made one of his grounds of defense, had been adjudged, by the decree of this court, to be a nullity, and without legal force or effect. Both bills were filed pursuant to the leave given. Subsequently, the defendant, John Greacen, Jr., died testate, and since then his executors and devisees have been substituted, by the order of the court, as defendants in his place. To the amended and supplemental bills the new defendants have interposed a plea, alleging that since the last two bills were filed the complainant conveyed all the land to which the water in controversy is claimed to be appurtenant, as well as his right to the water itself, to the Essex Paper Company. With the pleadings in this condition, no reply of any kind having been made to the plea, an application is made on behalf of the Essex Paper Company for leave to file what is called in the notice of the application "a bill in the nature of a supplemental bill and bill of revivor." The defendants, on receiving notice of the application just mentioned, gave notice at once of a motion to dissolve the injunction granted to Mr. Fulton.
The application for leave to file a bill on behalf of the Essex Paper Company must, I think, be regarded as a confession of the truth of the main fact stated in the plea; for, except it be taken as true that the Essex Paper Company has succeeded to the rights which the original complainant sought to have vindicated and protected by this suit, it has no right to intervene, and there is nothing on which its application can stand. The situation of affairs is this: The defendants, by an appropriate pleading, deny the right of the original complainant to longer maintain this action, because, they say, he is no longer the owner of the rights which this suit was brought to protect, having conveyed them to the Essex Paper Company. Thereupon—the original complainant saying nothing to the defendants' plea—the Essex Paper Company asks, by the same counsel representing the original complainant, to be permitted to file a pleading which will enable it to supplant the original complainant in the litigation, and to continue the litigation in its own name against the defendants. In view of these facts, it would seem to be undeniable that the application of the Essex Paper Company must be regarded as a full confession of the truth of the defendants' plea. This being so, it is clear that the original complainant must be dealt with as having, by his own act, deprived himself of all right or power to further maintain this action. The principle is elementary that a complainant, suing in his own right, and alone, cannot, after he has parted with his whole interest in the subject-matter of the litigation, further prosecute the action. Story, Eq. Pl. § 348; 2 Daniell, Ch. Pr. 1518; Mills v. Hoag, 7 Paige, 18; Sedgwick v. Cleveland, Id. 287; Mason v. Railroad Co., 52 Me. 107; Tappan v. Smith, 5 Biss. 75. The truth of the plea being confessed, the case stands, so far as the rights of the parties are concerned, substantially as though an order had been made allowing the plea. If mere matter of procedure or form be put aside, that is the precise present position of the case. The original complainant having deprived himself of the power to further prosecute his action, and the truth of the defendants' plea setting up that fact being confessed, the court should regard the plea as allowed. The rule seems to be settled that the allowance of a plea which either constitutes a full defense to the complainant's whole case or deprives him of all power to further prosecute his action will, if he holds an injunction, entitle the defendant to its dissolution. The allowance of the plea will not ipso facto dissolve the injunction, but a dissolution will generally be granted as of course, on motion. Philips v. Langhorn, 1 Dick. 148; Mason v. Murray, 2 Dick. 536; Ferrand v. Hamer, 4 Mylne & C. 147; Eldred v. Camp, Har. (Mich.) 162; 1 Daniell, Ch. Pr. 698; 1 Barb. Ch. Pr. 121; 2 High, Inj. § 1505. But, suppose the injunction in this case was retained, it is not possible for me to see how its retention would benefit the Essex Pa.per Company. It was granted originally to protect rights which were claimed by Elisha M. Fulton against a threatened invasion of them by John Greacen, Jr. It commanded Greacen. his workmen, servants, and agents, not to invade the rights claimed by Fulton. But Fulton no longer holds the rights in question, and consequently needs no protection. Both parties in interest have changed since the injunction was granted. So far as appears, since the Essex Paper Company has claimed to own the rights in question no invasion of them has been committed or threatened. No injunction has, as yet, been granted to the Essex Paper Company, and nothing has been done by the present defendants, so far as appears, which would justify the allowance of an injunction against them. Until the court has commanded the present defendants not to invade the rights claimed by the Essex Paper Company, nothing that they may do which may be alleged to be an invasion of them can, I suppose, be treated by the court as a contempt of its authority. The injunction must be dissolved.
The defendants do not deny that the Essex Paper Company may continue the litigation initiated by Mr. Fulton, but they deny its right to file a bill of the kind which it asks leave to file. The notice under which the application of the paper company is made, describes the pleading which it is desired to have leave to file as "a bill in the nature of a supplemental bill and bill of revivor," but I suppose the pleading meant is what is called in books of pleading and practice "an original bill in the nature of a bill of revivor." The defendants deny the right of the paper company to file an original bill in the nature of a bill of revivor, but concede that it may be proper to give the paper company leave to file an original bill in the nature of a supplemental bill. The difference between an original bill in the nature of a bill of revivor and an original bill in the nature of a supplemental bill is defined by Lord REDESDALE as follows: "There seems to be this difference between an original bill in the nature of a bill of revivor and an original bill in the nature of a supplemental bill: Upon the first the benefit of the former proceedings is absolutely obtained, so that the pleadings in the first cause, and the depositions of witnesses, if any have been taken, may be used in the same manner as if filed or taken in the second cause; and, if any decree has been made in the first cause, the same decree shall be made in the second. But in the other a new defense may be made; the pleadings and depositions cannot be used in the same manner as if taken or filed in the same cause; and the decree, if any has been obtained, is in no otherwise of advantage than as it may be an inducement to the court to make a similar decree." Mitf. Eq. Pl. 68; Story, Eq. Pl. § 349, note 2. It will be observed, that Lord REDESDALE does not say that under an original bill in the nature of a supplemental bill the pleadings and depositions filed and taken in the original cause cannot be used in the second cause at all, but simply that they cannot be used in the same manner as they may under an original bill in the nature of a bill of revivor. Lord ELDON, in Lloyd v. Johnes, 9 Ves. 39, stated it as his opinion that the only real distinction which exists between the rights or positions of the parties under the two different forms of pleadings is that the defendant under an original bill in the nature of a supplemental bill is just as much bound by the former proceedings as under an original bill in the nature of a bill of revivor, except as to any new equity or defense which may have arisen since the original bill was filed, or which he may have a right to urge against the new party coming into the litigation, but which did not exist against the original complainant. Making this addition to the formula given by Lord REDESDALE, it will be perceived that the rule on this subject is made entirely plain, easy of application, and eminently just in its operation. Adopting this as the true ground of distinction between the two forms of pleading, it seems to me to be quite manifest that the new party coming into this litigation should be required to adopt that form of pleading which will leave open to the defendantsany defense which may have arisen since this suit was commenced, or which they may have a right to urge against the new party, although it did not exist against the old. In no other way can the rights of the present litigants be fairly determined, or full and complete justice done. Besides, that is the course which the precedents, as I understand them, direct shall be pursued. Where a sole plaintiff, suing in his own right, transfers his whole interest in the subject of the litigation to another, the plaintiff being no longer able to prosecute the suit for want of interest, and his assignee claiming by a title which may be litigated, the benefit of the former proceedings cannot be obtained by a mere supplemental bill, but must be sought by an original bill in the nature of a supplemental bill. Story, Eq. Pl. § 348; 2 Daniell, Ch. Pr. 1518; Mills v. Hoag, 7 Paige, 18; Mason v. Railroad Co., 52 Me. 107. Tappan v. Smith, 5 Biss. 73, presents an example of the practical application of this rule. There Henry C. Bowen filed an original bill against Hyatt Smith to enforce the payment of a judgment. The defendant was brought into court, and the suit prosecuted regularly up nearly to the time of hearing, when Bowen made a general assignment to Tappan for the benefit of his creditors. The assignment passed, of course, the judgment on which Bowen's suit was founded. Tappan, after the assignment to him, attempted to obtain the benefit of the former proceedings in the cause by filing an original bill in the nature of a bill of revivor. The defendant demurred, and the demurrer was sustained, and Tappan's bill dismissed on the ground that the only pleading which Tappan could file in such a case was an original bill in the nature of a supplemental bill.
The application of the Essex Paper Company must be denied. It may, however, if it desires, take an order giving it leave to file an original bill in the nature of a supplemental bill. As the defendants have prevailed on both motions, they are entitled to costs.