Storm v. Mann — 4 Johns. Ch. 21

Majority

p. 21

Storm against Mann.

January 25th.

Headnote

An injunction to stay waste will not be granted, when the right is doubtful, or where the defendant is in possession, claiming adversely, and the plaintiff has brought an action of ejectment against him to recover the possession, and the suit at law is undetermined.

THE bill stated that John Young was the original patentee of lot No. 55, in Hannibal, in the county of Oswego. That the plaintiff purchased the lot of Young, on the 5th of November, 1810. That the plaintiff is in possession of the south half of the lot; and the defendant, not having any lawful title to the possession of the same, has been for a long time, and is now, in possession of the north half of the lot, i. e. of 300 acres. That to recover possession, the plaintiff has brought an ejectment at law against the defendant, which was commenced in August term, 1817, and in which issue has been duly joined, and the 'action is still pending undetermined. The bill, alleged that the defendant was committing waste, and prayed for an injunction to restrain it.

D. Allen, for the plaintiff, now moved for an injunction.

The title appears to be disputed; for the defendant has been in possession for a long time, and has joined issue with the plaintiff at law, on the question of title, and the action is still pending undetermined. Under these circumstances, I do not feel myself authorized to grant the injunction.

In Field v. Jackson, (Dickens, 599.) the Lord Chancellor held it to be a general rule, that when the right was doubtful, the court would not grant an injunction. So, in a case before Lord Eldon, (Pillsworth v. Hopton, 6 Ves. 51.) an injunction to restrain waste was not granted against a defendant in possession, claiming by an adverse title. If the plaintiff, in his bill, states such a claim on the part of the defendant, he states himself out of court, as to the injunction. In the present case, the bill does state to that effect, when it states that the defendant has been a long time in possession, and has joined issue with the plaintiff in ejectment. I must know the result of that issue at law before I can interfere.

Motion denied.