Littlejohn v. Leffingwell

The action is brought to set aside conveyances made in 1888 by Hugh Littlejohn, the husband of the plaintiff, since deceased, to his sister, the defendant Mrs. Leffingwell, and a quitclaim deed and release made by the plaintiff to the same party, in 1891, on the ground of duress, misrepresentation, and fraud. The complaint alleged the following facts: Hugh died in 1890, leaving a will devising and bequeathing to the plaintiff all his real and personal estate. Of this will the defendant Banks is sole surviving executor. Alida, the mother of Hugh, died in 1872, leaving a will ■devising and bequeathing all her real and personal estate to her ■executors in trust for her children, Hugh and Lucy, during their ■minority, and providing that at their majority the property should be equally divided between them. She gave her husband, D'e Witt 0. Littlejohn, by a codicil, a life interest in her estate. Of the executors, ■only De Witt qualified. He died in 1892, leaving a will devising and bequeathing all his real and personal property to his daughter Lucy, •and appointing her executrix. De Witt invested the assets of his wife’s estate, and among other things purchased therewith large •tracts of timber lands in Oswego and Jefferson counties, the title to which was taken in the names of Hugh and Lucy. In 1888, Hugh, being in financial straits, conveyed the timber lands to Lucy by several deeds, the expressed consideration being in the aggregate $7,000, but no part of such consideration was actually paid, the intention being that the lands should be held in trust for Hugh. Such deeds were obtained by duress and threats while Hugh was under the influence of liquor. In 1891, by false representations, De Witt and Lucy induced the plaintiff to execute a quitclaim deed and release to Lucy of all her interest in the timber lands and in' the estate of her husband, Hugh, for the sum of $10,000, which was paid to her. This price was wholly inadequate. In 1893, Lucy married Mr. Leffingwell, and conveyed to him a part of the timber lands, but the deed was not recorded till 1895; Mr. Leffingwell having, in 1894, executed to his ■wife a mortgage of $27,500 on the premises conveyed. Both instruments are alleged to be in fraud of the plaintiff’s rights. Mr. and Mrs. Leffingwell have sold most of the other lands of the estates of De Witt and Alida, and have never accounted, and they have threatened to sell the timber lands. The plaintiff demanded judgment set

The defendants’ contention is that the plaintiff is not entitled to the injunction for four reasons: First, no merits; second, the same was granted without notice to the defendants Leffingwell, they having appeared in the action; third, no security was given; fourth, the injunction should not have been made permanent ex parte. First, as to the merits: We have stated the allegations of the complaint quite fully in order to show that an apparently meritorious cause of action is made out entitling the plaintiff to relief. While it is true that many of its allegations are denied in the answers, it appears by the affidavits that Ackerman entered into a contract for the purchase of. the lands after the filing of the notice of lis pendens and consequent notice of the plaintiff’s claims. The affidavits show that the-value of the lands consists chiefly in their timber, and to permit its removal might seriously impair the plaintiff’s .rights. While the injunction restrains all of the defendants from felling and sawing timber, it is evident that on the conditions disclosed it was intended practically to enjoin Ackerman from continuing the felling of timber on the lands, which he had already commenced to do. He had not appeared in the action when the order was obtained, and no notice to him was required. Neither notice of application for the injunction nor security was necessary. Section 1681 of the Code of Civil Procedure permits such a course, if during the pendency of any action specified in title 1 the defendant ■commits waste or does any other damage to the property in controversy. And title 1, art. 8, includes the present action. The plaintiff alleges facts which entitle her to be declared a tenant in common in the property, and the defendants are threatening to cut timber therefrom. See Id. §§1666,1667. It was not necessary, as the defendants contend, that the plaintiff in an action of this character should tender to the defendants Leffingwell the $10,000 received by her as the consideration for the release. It is sufficient under the allegations of the

The plea of the statute of limitations is an affirmative defense, and I know of no authority which makes that a ground for setting aside an injunction which otherwise was properly issued. It is true that leave to serve an amended or supplemental complaint, or to add new causes of action, has been denied where the statute of limitations has closed the right of action; but these cases have been applications to favor in actions at law. This was the case in Quimby v. Claflin, 27 Hun, 611 , where the court refused to permit the amendment of a complaint by setting up a new and additional cause of action on a contract which had outlawed. So in Miller v. Johnson, 10 Civ. Proc. R. 205, the court refused to permit a supplemental complaint in an action for slander in order to set up an additional slander which was admitted to have been uttered more than two years before the application. But in the present action it is not at all" clear that the statute has run against the equitable claim of the plaintiff. In respect to the granting of the injunction without notice to the defendants Leffingwell, it may be added that, practically, the present condition of affairs has afforded a fair opportunity for argument in favor of their contentions; and, while this may not be held to be equivalent to original notice of such application'to a party who has appeared in the action, yet we are unable to discover any resultant injury to any of the defendants.

Under ordinary circumstances, we should find enough "in this case to uphold, the injunction and support the discretion as exercised below; but, in exercising the discretion of the court to grant or continue an injunction, the effects of the injunction on the interests of the parties should always be considered. Here the legal title is in the defendants, and the burden of proof rests upon the plaintiff to establish affirmatively that the deeds from her testator were obtained by fraud. The property consisted of a tract of about 9,000 acres. The claim of the plaintiff is that she is entitled to an undivided half of the property. The defendants Leffiingwell have conveyed to the defendant Ackerman a tract of 800 acres, or less than one-tenth of the property, for the sum of $3,400. It appears that sales of land of the character of that in dispute are made with difficulty and only at intervals, purchasers being few. If the cutting of timber is enjoined and the plaintiff fails to succeed in the action, a serious injury will have been done the defendants, for which they have no substantial indemnity, while, on the other hand, if the defendant Ackerman is permitted to cut the timber on the land which he purchased, and the plaintiff should succeed in her suit, she will have ample security for the protection of her rights in the property remaining unsold. In fact, in all probability the sale is advantageous to both parties, no.matter what may be the fate of this action.