Marvel v. Ortlip

Under the rules the complainant is allowed a certain time after the filing of the answer, within which

There is some danger, without care, of being misled on this point by the English books of practice. They lay it down, often broadly, that insufficiency of the answer, i. e. any insufficiency, is cause against a motion to dissolve an injunction, and the insufficiency is shown by

Finally on this point, it should be said that a motion to dissolve a special injunction (such as all under our practice are) is always in order. A defendant under an injunction has been arrested in the exercise of an apparent right, and the interference, if continued, may often work much injury. A motion to dissolve, therefore, should be‘heard, without regard to ordinary rules of proceeding and with all possible dispatch, consistent with a fair investigation of the subject. It is better to leave such cases to be dealt with according to the exigencies of each, and it is therefore as well that we have no general rule of Court applicable to them.

The hearing of the motion to dissolve was then set for the 19th of April, and, upon the application of the, solicitors for both parties, leave was granted to. exhibit, at the hearing of the motion, depositions in support of the bill and answer, respectively, the same to be taken upon notice to the adverse party, with opportunity for cross-examination, and to be confined to the matters alleged in the bill and answer, respectively.

Under this order several depositions were taken on both sides, before a Notary Public, and under cross-examination.

On the part of the defendant it was in evidence that, on the 22nd of February, Ortlip sent word to complainant that Swindle had run away and he would have to rent the hotel from him (Ortlip) and that on the 24th day

First. The equitable title vested in Swindle by the written contract of November 1865, under which the complainant as a privy in estate is in as a tenant.

Second. The equitable estoppel against Ortlip’s interference with the lease of Swindle to complainant to which he gave his assent; which assent is to be naturally drawn from his acts and declarations, and which it is against conscience for him to deny.

The two conjoined present the case of a lease from Swindle, the legal owner, confirmed by Ortlip, and as to the first, complainant does not now claim as Ortlip’s tenant, but under the lease of Swindle, which, we insist, is itself valid in equity ; but whatever defect there may be in it alone considered, it is valid by confirmation of Ortlip.

The contract of November 7th, is under seal, with covenant to convey “on or before 25th of March next,” with no stipulated time for delivery of possession, and partly performed. Time w'as not of the essence of the contract, and there is no proof of its rescission. Indeed the circumstances indicate the contrary. Svgden on Vendors, 205. Where one fails to perform, the other if he means to rescind must give clear notice to the other of his intention. Reynolds vs. Wilson, 6 Madd 20 ; Sugd. on Vend. 205 ; 1 Sto. Eq. Jur. p. 79-80 ; 2 lb. § 882. From the day of the contract, Swindle had the right to sell devise, lease or otherwise ■ dispose of, absolutely, not contingently, the premises. Sugd. on Vend. 162-4.

A contract of purchase,in equity,determines a tenancy at will or tenancy from year to year. If Marvel had purchased of Swindle he would instantly have ceased to be tenant. If a sale by Ortlip to complainant would have

Upon a contract of which the general object is sale, title in equity passes, and time is treated as subordinate and not essential unless by stipulation or the necessity of the circumstances, and a court of equity will protect the equitable owner against proceedings, founded on mere legal title. Addison on Cont. 172-3-5.

The conduct of the parties was such as to indicate that they treated it as an executed contract from its date, and this Court has no affirmative knowledge that the contract is at an end or that it might not yet decree performance, and mere suspicions cannot affect the rights depending on the right to specific performance.

In the second place this is a clear case of equitable estoppel.

The complainant was induced by the public acts and declarations of the defendants to place himself in the relation of tenant to one of them and they are estopped to deny that such acts were done and such powers existed as they held out and he acted upon.in good faith. Gregg vs. Wells, 10 Ad. and El. 90 ; Coles vs. Bank of England, 10 Ad. & El. 437 ; 2 Sm. L. Cas. (459) ; Peckard vs. Sears, 6 Ad. & El. 469 ; 1 Cotv. and Hills notes to Ph. on Ev., 3691 374. 377 ! Welland Canal vs. Hathaway, 8 Wend. 483 ; Dezell vs. Odell, 3 Hill 223 ; Beaupland vs. MeKeen et al., 4 Casey 124; Hill vs. Epley, 7 lb. 331 ; Brubarker vs. vs. Okeson, 12 lb. 519 ; Carr vs. Wahare,j Whart. 100; Wendell vs. Van Rensselaer, 1 Johns. Ch. 354 ; 2 Wh. & Tud. Lead. Cas. in Eq. 64. . .

The alleged counter estoppel is new matter, not responsive, set up by way of defence, and therefore not ground for a motion to dissolve. It is likewise improbable in itself and not fairly proved. Besides.the proof does not shew that Ortlip ever acted upon it.

The objection in the answer that a tenant cannot dispute his landlord’s title does not' apply. He may shew that,the landlord’s title had expired, and that he is in under a new right. Complainant is in under a new term. Mountenoy vs. Collins, 1 El. & Bl. 630. The estoppel is as against the landlord’s rights under the lease and during the term, and, as concerns the tenant’s possession, held under the lease. The present claim is not inconsistent with the landlord’s rights under the lease or any effect of the lease. Smith on Landlord and Tenant, 245-6 ; Sparks vs. Walton, cited W'hart. Dig. of 1865, 409. The tenant may show that the landlord’s title ended by legal or equitable transfer to another. Sm. L. Cas. [438.]

With respect to the objection taken to the jurisdiction to interfere, the injunction operates, not on the justice or

Nor can the objection that the complainant has an adequate remedy at law be sustained. The meaning of the terms “plain,” “adequate,” “complete,” is well understood. 1 Sto. Eq. J-ur. §§ 27, 30-33. Equity has peculiar care of rights and interests under contracts respecting real estate. 2 Sto. Eq. jfur. $746. The remedy by injunction does not exist only where there is no remedy, but where there is none adequate, none perfect. Ib. § 882, 885. It applies to all legal proceedings and acts against which equity exists. Adams' Equity, 194.

The present remedy is equitable in its nature, founded on the equitable rights, of a purchaser, also on the other ground of estoppel. If there is any remedy before the justice, it must be inadequate, merely to prevent Ortlip’s present proceeding and it could not adjust or give effect to the rights of the parties.

If the relations to Ortlip are not those of tenants, then the justice’s proceedings, do not apply ; particularly if it is not so because of equitable considerations. Title cannot be considered here or in proceedings before the justice.

The provision at the close of Sec. 15, Revised Code, 1852,/. 366, applies to legal remedies only; if the law meant to exclude equitable interposition it would have so provided.

It is objected that written consent is necessary to an attornment. This does not mean a formal written consent. The contract from Ortlip to Swindle is sufficient; passing an equitable title and with it power to lease, suppose it had been a lease for five years and a sub-lease

The provisions of the statute are adequate to the relief of the complainant at law. Section 6 (p. 364) provides that if the plaintiff be entitled to possession he shall have judgment. The allegation in the statement is that the defendant “unjustly withholds the same.” The jury are to inquire as to the truth of this allegation and the defendant may raise any defence involving the justice or injustice of the holding, equitable or otherwise. It is intended to be an equitable tribunal and the issue cannot be confined to a mere trial of question of lease and notice, for this would not admit of defence in a case where notice was given and waived. The defendant may shew an agreement for a continuance which is (p. 421) provided for as equivalent to a new demise. Another ground on which complainant is relievable under the statute is the- provision (p. 366) that a tenant cannot set up an alienation unless he can shew some right in himself; such right he now claims and could have shewn before the justice.

If Ortlip’s alleged “ acts and declaration,” on which complainant relied amount to a waiver of notice or consent in the sense of the statute, then he holds under Ortlip and is relievable under the statute.

But if he does not claim to hold under Ortlip he must claim to hold against him under Swindle without Ortlip’s written consent, contrary to the law of attornment. Revised Code (1852) p. 422 Sec. 7.

The estoppel claimed, if it operates at all, would be in favor of Swindle, of his assignees, or his widow, if he were dead. While they hold the other property no right can be claimed, founded upon any supposed right of Swindle or his assignees, to a specific performance. A specific performance could not now be decreed in favor of Swindle’s assignees, when plaintiff has failed to perform, or it

Substantially the case made for complainant’s equity is one of attornment and not of estoppel. This requires the written consent of the landlord. An actual conveyance would be equivalent to the “written consent” necessary under the Statutes,under which,upon a grant,no attornment is necessary. Rev. Code (1852) p. 442, Sec. 6. Such a written consent is not shewn. The Statute provides for attornment under decree but this cannot be satisfied by anything the Court is now to do. The rights of parties here must stand on past transactions.

The principle that the tenant will not be allowed to dispute his landlord’s title applies here. Greene vs. Munson 9 Vt. 37 ; Lunsford vs. Alexander, 4 Dev. and Bat. 40 ; Love vs. Edmonston, 1 Iredell 152; Stearns vs. Godfrey,4 Shep. 158; Wilson vs. Smith, 5 Yerg. 379 ; Lee vs. Nether-ion, 9 Yerg. 3x5 ; Drane vs. Gregory, 3 B. Mon. 6x9; Moore vs. Beasly, 3 Ham. 294 ; Reed vs. Shepley, 6 Vt. 602 ; Moshier vs. Reading, 3 Fairf. 478 ; Jackson vs. Stiles, 1 Cow. 575 ; Galloway vs. Ogle, 2 Binn. 468 ; Jackson vs. Miller, 6 Cow. 751 ; Dinglyvs. Anjovey, 2 Ves. Jr. 304.

No equitable estoppel arises out of the facts of this case. There are five requisites ; the acts or declarations must have been, (1) designedly made to influence the conduct of another ; (2) they must have in fact influenced it; (3) they must be plainly inconsistent with the present claim ; (4) the present claim must be to the injury of the other party, and (5) the acts or declarations must be with or to the party to be affected. Burrill's Law Diet. Tit. “Estoppel”; 4 Kent's Com. 261 note ; Dezelle vs. Odell, 3 Hill 215 ; Peckard vs. Sears, 6 Ad. and El. 469. The facts of this case do not meet these requirements. It is vital to the existence of an estoppel that the acts and declarations, which are to work an estoppel, must be brought home to the

The purchaser under a contract of sale is not in equity the owner from the date of the contract, but only according to its terms. The rule cited from Addison on Contracts p. 158-9, that equity regards the vendor as a trustee for the purchaser subject to the terms of the contract, isa conventional rule, applied in special cases, to effect justice but never to defeat justice. Ib. 174-5. Equity for collateral purposes treats as done.what ought to be done, not simply what is agreed to be done. Hence, when performance is due according to the terms of the contract, equity may in dealing with rights of parties and privies act as if performance was made. The rule is not that equity will treat the contract as performed from the time it is made, but when according to the tenor thereof, it ought to be performed. 1 Sto. Eg. Jur. Sec. 64 ;• Harrington vs. Wheeler, 4 Ves. Jr. 687 ; Waters vs. Travis, 9 Johns. 450 , 466; Benedict vs. Lynch, I Johns. Ch. 307. The complainant is himself estopped from invoking the benefit of the estoppel, as claimed, if there were any. Complainant’s conduct operates both asan estoppel,, and also to shew that he had not absolutely relied on the release from Swindle.

The Chancellor:—

The first ground which, the complainant claims, establishes the validity of the lease and Marvel’s right to hold possession under it, is the power of Swindle, as the equitable owner of the premises from the signing of the contract, to dispose of the possession by lease,, to take

This power to lease, with the effect claimed, it was urged, was incident generally to the equitable ownership taken under a contract of purchase. The complainant’s counsel did not, however, rely wholly on this legal position, but claimed further that in this case, it appeared from the declarations, acts and dealings, of these parties with the respective properties, that there had been in fact, by mutual consent, either express or tacit, it mattered' not which, an exchange, between Ortlip and Swindle, of an absolute control of the respective properties, to the extent of giving to each the right to dispose of the property taken by him, by sale or lease, to take effect from the twenty-fifth of March absolutely, and not contingently upon the actual execution of the contract; and that such consent annexed to Swindle’s equitable ownership the power so to lease the hotel even though it was not a power generally incident to a purchaser’s equitable estate.

This. ground embraces two distinct points of inquiry, viz :—

- First. Whether a purchaser, under a contract,before its' execution, can, by virtue of his mere equitable estate, without the vendor’s consent, lease the property to take effect after the time fixed for performance absolutely, whether the contract shall in fact be performed at the time appointed or not.

This is stating the question truly : For to this extent the complainant’s proposition, on this branch of it, must go to avail him, and it is material to bear it in mind. What this controversy concerns is the right of possession after 25th March. Ortlip, the vendor, claims to retain it, the contract of sale being unexecuted ; Marvel claims to hold it, notwithstanding the contract is unexecuted, by

Considered in a practical view, as affecting the security of vendors of real estate, the proposition is a startling one. For, to the vendoy, the possession, until the contract shall be executed, is about all that is left by the contract in him, the legal title being really but the shadow of that of which the possession is the substance, and the right to hold it is the vendor’s best security for performance by the purchaser. The surrender of this right of possession to any control of the purchaser, to take effect prospectively, it is true, yet absolutely leaves the vendor no other .remedy but in all cases to resort to equity for a specific performance. It takes away the protection of the rule that holds these covenants, which are to be concurrently performed, to be conditions precedent to each other, and that he is not bound to convey and deliver possession until the purchaser tenders performance on his part. Or putting the effect of the proposition in another point of view, as soon as the time for performance arrives it substantially executes the contract on the part of the vendor, and against him, without any. tender of performance by the purchaser or readiness to perform, or perhaps even ability to perform.

I am aware that sometimes purchasers do take possession before actual conveyance of legal title ; but this is under particular circumstances, induced by confidence on the vendor’s part, or some special security to him.

But passing from this practical view of the subject let us examine this question as a legal one to be settled by the course of decisions. A brief examination of it will

To subject the right of possession, before the contract is executed, to any control on the part of the purchaser, such as is involved in the proposition considered,would be to change, in a most substantial degree, the terms of the contract, or, which is the same thing, the rights of the parties under it. Equity cannot do this. It does in some respects control the legal rights of the parties, under the contract, but-it does so strictly in furtherance of what is deemed the real object of the parties. Thus it will decree a conveyance after the time stipulated in the contract, because under ordinary circumstances, it holds the agreement to convey to be of the substance of the contract and the precise time subordinate and not essential.

But, even as to time, the matter with which equity deals most freely, whenever, either by stipulation or from the circumstances of the case, time becomes of the essence of the contract, a court of equity is held to be as much bound by it as a court of law. In no single instance, so far as can be found, has equity attempted to confer upon,

Let it be here specially observed that the fact, that the time for executing the contract has passed, does not of itself affect the right of possession, and it is immaterial to whose default the failure to execute is due. For the possession (in the absence of the delivery or consent) passes only by deed with the legal title. Hence, even upon default of the vendor to convey (which is not a feature.of this case) the purchaser cannot enter into possession, or by lease put another in, but is put to his bill for a specific performance, to obtain the legal title, and, even then he may have to resort to an ejectment to recover the possession under the legal title. Though equity thus far relieves the purchaser for his delay in recovering possession, it will, in decreeing a specific performance, also decree to the purchaser the profits, from the time fixed for completing the contract, as it will on the other hand decree interest to the vendor, treating that as done which ought to have been done. And this is the whole relief equity attempts to afford to a purchaser against delay in the performance of the contract.

Then it remains only to consider on this point what the text books, and in some cases the courts mean by the broad description they give, cited in argument, of the purchaser’s equitable ownership from the time of signing the contract,such as the citation from Addison on Contracts, 159, and from Ld. Eldon in Seton vs. Slade 7 Ves. 274. Describing the difference between the effect of the contract at law and in equity, Addison, quoting Ld. Eldon, says : “at law the estate remains the estate,of the Vendor

To conclude then this point, Swindle, merely as the equitable owner of the hotel, under the contract, had not, on the 15th of February, the date of the lease to Marvel, nor,at any time since, power to demise the hotel so as to entitle the tenant to the possession after the 25th of March, as against Ortlip the vendor. Such power could only be exercised under Ortlip’s consent.

Secondly, This brings us to the second point involved in this ground of equity, which is the complainant’s claim that Swindle, though only the equitable owner, had such

In considering this point, it is necessary first to deduce from .the bill, answer and evidence together what were the declarations, acts and dealings of the parties on this subject, and then consider their effect.

The consent is claimed to be evidenced by both declarations and acts. What then were they? It is true, the bill alleges that Ortlip “frequently declared,” in substance, that it was a sale and bargain, and that each had control and power to lease. The answer denied, sufficiently, all in this allegation that is material and there is no evidence against this denial, except that the witness Hamilton states, that Ortlip told him that Swindle had traded the farm with him for the hotel, which, as language is usually understood,would not imply necessarily an executed sale. The answer also denies having ever declared it was a “sale” in any other sense than as a bargain or contract of sale ; and in considering the declaration in its bearing upon this ground of equity, as evidencing an actual consent to the transfer of control, the meaning of the defendant is material and properly to be considered. The answer further denies positively, that he “at any “time declared that Swindle had a right to rent,” &c. The denial of his having at any time so declared quite meets the allegation of the bill, which is that “he fre“qnently declared” so. The further denial that he “believed, or’gave complainant any adequate or intended “cause to believe,” the matter stated goes beyond the line of response.' Turning to the evidence on this point, the depositions shew no declarations made by Ortlip at any time to any one as to Swindle’s control over the hotel .or power to lease it; or as to his own like control over the farm, the whole evidence bearing on this question is of acts, not of declarations.

Taken together the bill, answer and depositions establish these facts ; As to the hotel, Swindle advertised it for public sale on January 9th. The advertisement in evidence is in the usual form of such advertisements by a person having the legal title. His name is signed and it states that “ a good and sufficient title will be given ” and that “ conditions will be made known at sale. ” Pursuant to this notice the property was offered, and Swindle, being present, solely controlled the sale; Ortlip was not present, nor was he named in the advertisement or terms, as read. The property received some bids and was withdrawn because they were not of sufficient amount, and no further effort to sell the hotel appears. On February 15th, Swindle leased to Marvel and received in advance part of the rent. This lease, as well as the advertisement of sale, in its terms, treats the hotel as if it were Swindle’s property, and it is in the usual form. Connected with this act may be considered another, that immediately upon the execution of the contract of purchase Swindle made a verbal promise of the hotel to Marvel for the next year and an arrangement for filling the ice-house in anticipation.

Hamilton further states that Ortlip told him he should hold it at private sale till March 1st, then, should he not sell, he would have it worked on shares. The same witness also states that, about the 1st of March, Ortlip told some one, on the tavern porch at New London, to tell Joshua Menough to let a person, they had been talking about, have the place. The answer further admits that Ortlip verbally agreed to lease the farm to Robert Tremanas. The time at which this was done is not stated nor indicated by any testimony unless Tremanas was the person referred to in Ortlip’s message to Menough. This is a full and exact statement of the several acts and dealings of each party with the respective properties contracted for by them after the date of the contract.

And now the question arises do these acts, of offers to sell and of leasing, prove that there was between these parties a mutual consent, or arrangement, that each should deal with the property purchased by him as the absolute owner, and might dispose of it, by sale or lease to take effect after the 25th of March, immediately and in all events and not to be affected by the failure of the execution of the contract of exchange.

That a purchaser of property, who is to receive the legal title and possession at the expiration of the current year of the tenancy should make prospective arrangements for the following year’s tenancy, and even enter into a written lease for the following year, cannot be unusual. It is a course necessary for the productiveness of the property, which, ordinarily, a purchaser will not hesitate to take, without seeking any consent or sanction of the vendor, or guaranty against the risk that his lease may be ineffectual, through a failure in the execution of the contract. This is a risk which men are not likely at the time to estimate seriously or provide against, but they rather act, confiding that all their arrangements will be carried into effect. Offers to sell, by a purchaser under an unexecuted contract of purchase, are more unusual, as men do not generally buy to sell again at once. And yet, where men are buying for speculative objects, the same, confidence, that the contract will be performed at the time stipulated, might well induce the purchaser to offer the property for sale, in advance of the execution of the contract ; and if in doing so he does not undertake to transfer the legal title and possession, until a time at which, by his own contract, he is to receive them, and there is neither allegation nor evidence that either of these parties did so undertake, such a dealing with the property is not inconsistent with the vendor’s rights, so that, to warrant it, we must infer the concession to the purchaser of powers beyond what properly attach to his equitable estate.

I have specially weighed in this connection the fací that each advertisement, for public sale, was in the usual form and held out, (though without any express terms,) that the subscriber was the legal owner, and that the

I do. not consider that this mode of advertising proves that these parties gave to each other, or that either meant to assume, ány power not consistent with their actual relations to the property. They felt, (as men always do under such circumstances,) implicit confidence that the contract between themselves would be executed ; they weighed lightly, if at all, the contingencies ; they must have been sensible that it would prejudice their offers of sale to announce the incompleteness of their title and that the execution of their own sales if made, would be contingent. Rather than incur this prejudice, a purchaser would naturally take what he would feel to be but the small risk of his not being in a condition to complete a sale if made. These I take to be the real inducements to the mode of advertising adopted and not any arrangement or understanding between these parties. The question of good faith to the public is not here involved. The understanding of the parties, as between themselves, is the matter inquired of.

There are two considerations which weigh strongly against the complainant’s construction of these acts as implying an exchange of absolute control over the properties. These are; x. Such an exchange of control would take from each, after the 25th of March, the right to hold his own property until actual execution of the contract, a right which we have already had occasion to observe is most important to the security of the vender and which remains to him under the contract. Thus, such an exchange of control, with the effect claimed, would, in the case of Ortlip, deprive him entirely of the liotel property during the term of the lease, while by the failure of the contract of sale, he lost entirely any benefit from the farm. Now parties may thus surrender their rights, yet, if it is to be inferred from acts, those acts should

2.'The defendant’s answer denies that Swindle’s mode of advertising the hotel, (as he in fact did advertise it,) was with his defendant’s consent or authority. The answer respecting this advertisement states among other things “he (Swindle) had no authority to advertise or sell “it as then his his own, and, if he did so, he did so with“out sanction of this defendant and without right.” Now this is a denial of the very fact which the complainant infers from the mode of advertisement and sale by Swindle, viz : that there was consent, an arrangement, a mutual exchange of control, &c. This answer is responsive to the bill. The bill charges generally a mutual exchange of absolute control over the properties, and specially the acts and dealings of the parties, including the offers for sale in absolute terms, as done by consent, to warrant the general allegations. The defendant denies the general allegation, and also his consent to the offer of the hotel for s.ale in the mode charged. The defendant’s consent is materially involved in the complainant’s charge and its denial by the defendant is therefore responsive. Now considering that the acts may, as we have seen, have been naturally induced without the defendant’s consent to the exercise of any power, unusual to purchasers, or not warranted by the contract, I do not feel justified in inferring such consent, against the express denial of the answer, not controverted by evidence, and the acts themselves being inconclusive.

I have thus far referred only to the offers at public sale. I need not stop to consider the effort of Ortlip to dispose of the farm at private sale; for it presents no new or peculiar feature, except one which is in Ortlip’s favor. For in the negotiations with Hatton, he said he would make a good title by the 1st of April, which, besides proving that he did not undertake to complete his sale until he expected the title, also carries the impression

I proceed now to the other ground of equity relied upon in the bill. It is this ; — that Ortlip, both by acts, and declarations, induced Marvel to believe that Swindle had the power to lease the hotel so as to give the tenant a right of possession after the 25th of March ; that under this belief, so induced, and relying upon the acts and declarations of Ortlip, Marvel took the lease and paid in advance part of the rent, and that thereupon Ortlip is equitably estopped from impeaching the validity of the lease as against Marvel.

It was upon this ground of equity that the injunction was ordered. I thought then and still think that the bill charges facts sufficient to estop Ortlip from disturbing the possession of Marvel under this lease. It charges that Ortlip had frequently declared “that Swindle had a per“fect right to rent, sell or do what he pleased with the “said hotel property in Newark and that he Ortlip had “the same rights and powers in relation to the farm,” and in a subsequent part of the bill he charges that, being induced by and relying upon these declarations made to himself as weli as others, as also by certain public acts and dealings of Ortlip and Swindle with the proprietors, which were, at least, in harmony with these declarations and gave them force, he took the lease and paid his money; and under the charges of the bill Marvel does not appear to have been then cognizant of the contract or its terms. A clearer case of equitable estoppel than that here charged it is difficult to put. The rule is this ; — where one by his acts, declarations or silence, where it is his duty to speak, has induced another person, in reasonable reliance on such acts or declarations, to enter into a transaction, he shall not, to the prejudice of the person so misled, impeach the transaction. He need not have acted

1. That the party claiming the estoppel was misled and induced to enter into the transaction upon the faith of the declaration, act or silence of the other, or upon the fact or relation which he seeks to restrain the other party from denying.

2. That his being so misled was not through his own negligence, or want of attention to proper means of information. For the general maxim, “ Vigilantibus non dormientibus leges adjuvant,” ought specially to apply here, since the interposition of equity in these cases is extraordinary and restrictive of legal rights, and will not be extended to those who have not exercised reasonable diligence to protect themselves.

It is not necessary to refer to cases, to show the rule or its limitations. The subject is a familiar one. It is fully treated in 2 Smith’s Leading Cases 400, &c.

Returning now to the case before us.

The estoppel is charged by the bill to arise from both declarations of Ortlip and the acts and dealings of Ortlip and Swindle together. What the acts and dealings of these parties were, are the offers for sale and the leasing of the properties with the attendant circumstances. These taken in connection with declarations made by Ortlip to Marvel, such as are charged, would have weight on the question of estoppel, because they would give force and probability to the declarations ; but considered by themselves without any declarations on the part of Ortlip to Marvel and considering them as impressions on one cognizant, as Marvel was, of the contract, they are not sufficient to estop Ortlip from claiming his right, as the legal owner to the possession of the hotel. And for this clear reason ; equity in applying this doctrine interferes with the legal remedy of the party and with what but for the estoppel, is his clear legal right. It is a serious interposition. To warrant it the matter of estoppel should be plainly made out, the facts well established and their effect or construction conclusive,, at least not doubtful. The present is a clear case for the necessity of this caution. The vendor is to be debarred from the possession of his property before he receives the consideration for it,under the effect of a lease,which, by the omission of Swindle to give notice to quit, may be one of indefinite duration, and he is turned over to his remedy against Swindle, á species of remedy always undesirable and under the circumstances of this case very embarrassing. An estoppel working such effects should be conclusively established.

Now the acts and dealings of Ortlip and Swindle as facts are established and so notorious that Marvel must have been cognizant of them, and to one ignorant of the

It appears by the complainant’s affidavits that he was present at the signing of the contract between Ortlip and Swindle, and must have been cognizant of its terms. Armstrong states that this contract was made in a room at the hotel, that Marvel came from the room for the hotel books and took them into the room, that Marvel, Ortlip and Swindle returned together from this room, where the contract was made, into the bar room, and a conversation ensued which shewed that the contract had then been concluded.

I have considered the acts and dealings of Ortlip and Swindle with the properties and their effect separately, because, although in the bill they are charged in connection with declarations of'Ortlip, yet, as the case is now presented, they stand alone. The charge of the bill that there were declarations of Ortlip inducing Marvel to take the lease is fully denied by the answer. The denial I have already quoted. The affidavits prove no such declara

They will be found implied if not always expressed in all general statements of the doctrine. Let us apply them to the transaction in question. Did Marvel in this conversation agree at all to become Swindle’s te'nent, so that he could have been held ? The testimony does not shew on this occasion more than a proposal by Swindle, not a bargain. What Marvel did afterward as to refilling the ice-house in January does not seem material to the effect of the conversation on the 7th of November, and Ortlip’s duty then. Again, supposing Marvel had then accepted the proposed tenancy, could we say that, being cognizant of the contract and knowing that Swindle was but a purchaser under an unexecuted contract, he did not accept the tenancy as Swindle offered it in mere reliance upon the certainty of the contract being executed ? Can we suppose on the other hand from anything that-occurred, that Marvel believed that Swindle could put him

I have found it impossible to answer these and similar questions, so as to involve Ortlip in any breach of duty by his silence on that occasion, and without a breach of duty, silence does not work an estoppel. Indeed I can see nothing in the whole transaction but the natural result of the confidence all must be supposed to have felt that the contract would be duly executed on the 25th of March.

It only remains to add on this subject that it does not appear that Ortlip was present when Marvel took the written lease, or at all cognizant of it- or of any other conversations or transactions connected with Marvel’s tenancy.

In the argument of this case, the complainant’s counsel objected, on two grounds, that the defendant’s answer does not entitle him to move for dissolution of the injunction.

First. Because the answer, as he insisted, is evasive 'and does not frankly .and fully respond to the allegations of the bill. I do not think, upon a careful examination, that the answer is willfully evasive,taking into consideration the character of the facts. Whether it would be held sufficient, upon exceptions filed under the rule of Court, is not material upon the present motion. To entitle a defendant to move to dissolve a preliminary injunction, his

Second. The other ground of objection was, that Ortlip could not move to dissolve the injunction until the other defendants, or at least Swindle, had answered. The general rule on this subject and the exceptions were understood alike by the counsel. This case seems to be clearly within the exceptions. Consider these features of it: 1st. The remedy, by injunction, is sought against Ortlip alone. He alone is seeking to dispossess the complainant, and it is against him only that the injunction is prayed. 2d. The equity of the complainant, if any, must spring from the declarations or acts of Ortlip, and it is only so far as the bill charges Ortlip with these that it Shows an equity to relief. The complainant’s case rests upon the validity of the lease, which, the bill charges, springs, either from Ortlip’s transfer of the control of the hotel to Swindle, or from his acts and declarations working an estoppel. ' Now no acts or declarations but his own could either transfer the possession of the hotel or estop him from claiming his legal rights in it. It is then Ortlip’s transfer of the control of the hotel, or his acts and declarations influencing Marvel to take the lease, that constitute the ground of equity or what is the same thing the gravamen of the bill. Swindle’s transactions could at best only be circumstantial evidence of an exchange of control. But without Ortlip’s connection with them they give the complainant no equity to relief. 3rd. Another material feature of the case is that there is no community of interest between Swindle and Ortlip but it is between Swindle and the complainant. • The complainant claims

In the argument some questions were necessarily discussed which in the view I have taken of the case have become immaterial.

One of these is, whether Swindle and his assignees still have a right to a specific performance of the contract. Whether they have or not is immaterial, for, unless Ortlip gave to Swindle the power to lease the hotel from the 25th of March absolutely, or unless he has estopped himself from impeaching the lease, his right as the legal owner to the possession of the hotel remains until the contract is in fact specifically executed. Besides the question whether Swindle’s assignees are entitled to a specific performance can only be tried by a bill filed by them for that purpose. We could- not debar Ortlip from the possession of the property of which he is the legal owner upon the assumption that the assignees have an equitable right which, if they were to seek to establish they might fail and which they may, in fact, not claim, and it is doubtful, under the circumstances, whether they ever will.

If the complainant were the assignee or heir of Swindle so that he could carry into effect Swindle’s part of the contract he might file a bill for a specific performance and in this way avail himself of Swindle’s rights. But not having Swindle’s equitable estate, he is not in a condition to perform Swindle’s obligations to Ortlip under1

The defendant’s answer, and his counsel in argument, took several, objections to the equity of the bill which did not go to the merits of the case. These were, that the relief sought’is in conflict with the rule that a tenant shall not deny his landlord’s title, also that the issuing of an injunction in such a case was an infringement of a jurisdiction exclusively conferred upon the Justice of the Peace; that the complainant, if he claimed under Ortlip, had an adequate remedy in the proceeding before thejustice, and that he could not claim under Swindle, for, having received the possession under Ortlip, a claim to hold under Swindle would be substantially an attornment to a new landlord, which the statute requires to be in writing.

Having been obliged to decide the motion against the complainant, on the merits, these- questions were properly discussed, but it is not necessary for me to examine them and I will express no opinion on them, further than to say that they would not prevent me from ordering an injunction again under like circumstances.