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FINDLAY V. HINDE, 26 U. S. 241 (1828)

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U.S. Supreme Court

Findlay v. Hinde, 26 U.S. 1 Pet. 241 241 (1828)

Findlay v. Hinde

26 U.S. (1 Pet.) 241


If, in case where the loss of a deed or other instrument is made the ground for coming into a court of equity for discovery and relief, an affidavit of its loss must be made and annexed to the bill, and the absence of such affidavit is good cause of demurrer to the bill, yet if the party charged by the bill failed to demur for that cause but answered over to the bill or permitted it to be taken for confessed by default against him, it seems that the absence of the affidavit is not a sufficient cause for the reversal of the decree.

If a deed has not been proved, acknowledged, and recorded, and would therefore be insufficient against subsequent purchases without notice, parties who claim under such deed have a right to come into a court of equity for a discovery upon the ground of notice, and if notice should be brought home to subsequent purchasers, the complainants have a right to relief, by a decree quieting the title.

Where, in a bill filed for discovery and relief, the party relied upon a deed said to have been lost, but which had never been formally executed to convey the real estate, and upon a receipt of the purchase money binding the party to convey the estate, the person alleged to have executed the lost deed, and who gave the receipt should have been made a party to the proceeding, although he had subsequently, by a legal and formal conveyance, duly

executed, conveyed the estate to others, and thus, so far as he could, divested himself of all title in the same.

The decree of the circuit court directed two of the defendants, in whom was the legal title to the lot of ground claimed by the plaintiff in the bill, to convey the same, and awarded costs generally against all the defendants. All the defendants appealed together to this Court, some of whom held the legal title to the lot, and all the defendants had an interest in defending this title, standing as they did in the relation of vendors and warrantees

and vendees. Although the defendants, against whom there is a decree for costs only, could not appeal from this decree for costs, yet the reversal of the decree of the circuit court was made general as to all of the appellants, and the whole case opened.

The appellees filed their bill in the Circuit Court of the United States for the District of Ohio, praying a discovery and that the defendants may convey to the complainants such a title as they have acquired to a lot of ground in the Town of Cincinnati and deliver up the possession acquired by them, and also that they account for the profits, and for general relief.

The title set up by the complainants, was alleged to be derived from a receipt given by Abraham Garrison, in whom the title to the lot was then vested, which receipt in the following terms:

"Received, Cincinnati, 10 September, 1799, of Wm. and

Page 26 U. S. 242

Michael Jones, fifty pounds thirteen shillings and three pence, in part of a lot opposite Mr. Conn's, in Cincinnati, for two hundred and fifty dollars, which I will make them a warrantee deed for the same, on or before the twentieth day this instant."

"Test, Jacob Awl Signed, ABRAHAM GARRISON"

And from a deed, executed on the following day, by which Abraham Garrison, for the consideration of $250, conveyed the lot to William and Michael Jones, which deed was said to have been lost by time and accident. The lot was, by subsequent conveyances, claimed to be vested in the complainants. No affidavit is attached to the bill showing that the deed was not in the complainants' possession or setting forth that it had been so lost or destroyed.

To this bill the defendants, James Findlay, Charles Vattier, William Lytle, and Robert Ritchie, answered separately, and a decree was entered against the other defendants for costs, the bill having been taken pro confesso against them, they not having answered.

After hearing, this Court gave a decree against the defendants who had answered, and all the defendants appealed to this Court.

The bill, answer, exhibits, and depositions showed a case containing many controverted facts and allegations, and the questions of law arising upon the same were elaborately argued by Mr. Webster and Mr. Caswell, for the appellants; and by Mr. Dodridge and Mr. Jones, for the appellees.

The decision of this Court, by which the decree of the Circuit Court of Ohio was reversed and the cause remanded for further proceedings, was upon two questions of chancery practice which were raised by the counsel for the appellants.

1. The court have decreed relief to the complainants on the bare suggestion that the deeds once existed, which are lost, when no affidavit is attached to the bill, showing that the deeds were not in complainant's possession, and without such an affidavit a court of chancery has no jurisdiction of the cause. The appellants cited the following cases to show the error of this proceeding. Mitford's Pl. 52, 112; 2 Pere Williams 540-541; 3 Atk. 17, 132; 4 John.Ch. 297.

2. The complainants not having shown a deed from Garrison to the Jones', must rely upon the receipt from Garrison to the Jones' as an equitable title; and if they claim that equitable right, they of course must make Garrison, the elder, and the Jones', parties to the suit. Upon this point the counsel for the appellants cited Simms v. Guthrie, 9 Cranch 25. chanroblesvirtualawlibrary

Page 26 U. S. 243

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