CHANCERY-Continued.]

out the condemnation of the right in the mode prescribed by
law, and without, in obedience to the constitution, making just
compensation therefor to the complainant, such bill contains
equity, and it is error to dismiss it on motion of defendant for
the want of equity. Ib. 51.

3. Same; when injunction should not be granted.-While the bill in
such a case contains equity, if, upon the coming in of the
answer, the defendant sets out at length its authority for con-
structing its road along said street, and it appears that the
construction of such road will not interfere with the enjoyment
of the complainant's property, and that the damage to the
complainant would be small, while the damage to the defend-
ant, in restraining the construction of the road, which was im-
portant to the public as well as to the defendant for terminal
facilities, would be very great, the court, in the exercise of a
sound judicial discretion vested in it, should refuse to interfere
by injunction, leaving the parties to legal remedies; it not be-
ing averred in the bill that the defendant was insolvent. Ib.51.
4. Jurisdiction; right to maintain bill during the pendency of another
suit involving the same question.-Where the jurisdiction of a
court and the right of the plaintiff to prosecute a suit has once
attached, that right can not be arrested or taken away by pro-
ceedings in any other court in reference to the same subject
matter; and where a bill has been filed in a chancery court of
one county to have a deed to lands declared fraudulent and
void as against the grantor's creditors, and such court has ac-
quired jurisdiction of the parties and the subject matter of the
suit, the grantee in said deed can not, during the pendency of
such suit, maintain a bill in another court, to enjoin the suit
and have the deed declared a valid conveyance; and such facts
appearing on the face of the bill, such objection to the main-
tenance of the suit can be raised by demurrer. Troy Fertilizer
Co. v. Prestwood, 119.

་

5. Same; same; statutory claim suit.-Where the creditor of a ven-
dor levies an attachment upon property alleged to be fraudu-
lently conveyed, which is in the possession of the vendee, who
interposes a claim to the property, such vendee can not, sub-
sequently maintain a bill to enjoin the enforcement of a judg-
ment rendered in the attachment suit by a sale of the property
levied upon, since he had an adequate remedy in the claim suit
which was instituted by him. Ib. 119.

6. Foreign corporation; cancellation of mortgage; executed contract.
A bill filed against one in possession as absolute owner under a
purchase at a foreclosure sale of a mortgage, to set aside and
cancel the mortgage, on the ground that the mortgagee was, at
the time of the execution thereof, a foreign corporation, and
did not have in this State a known place of business and an
authorized agent therein, can not be maintained, since at the
time of the filing of the bill, the contract, even though it may
have been illegal, had become fully executed. Kindred v.
New Eng. Mortg. Sec. Co., 192.

7. Equity af bill to take charge of debtor's property; insolvency alone
not sufficient to confer jurisdiction.-Insolvency alone, in the
absence of fraud or collusion, does not authorize a court of
equity at the suit of a creditor to take charge of a debtor's
property and administer it for the benefit of his creditors.
McCreery & Co. v. Berney Nat. Bank, 224.

8. Right of remaindermen to compel life tenant to give security.-Where,
in his will, the testator bequeathes bonds to his wife for her
life, and after her death to his three sons, naming them, dur-

CHANCERY-Continued.

ing the term of their natural lives, "and then to the children
that each may have surviving them," and such bonds come
into the hands of one of the sons, as executor, who was de-
creed to deliver them to the wife of the testator as a life tenant,
but who nevertheless retained them or their proceeds, the
children of one of the testator's sons named in the will, who
had died, upon showing that there was danger of loss of the
bonds or their proceeds, and that the wife of the testator was
unable to give security, is entitled to maintain a bill to obtain
security from the testator's son who is in possession, for the
perservation of the bonds or their proceeds, for their benefit.
Bethea v. Bethea, 265.

9. Same; equity of bill.-Where, in such a case the children of the
deceased son of the testator file a bill for the purpose of obtain-
ing security for their ultimate interest in the bonds or their
proceeds, the fact that the complainants owed the wife of the
testator a sum less than their interest in the bonds, does not
constitute a bar to the maintenance of such bill, on the ground
that they must do equity before seeking equity; the debt owing
by the complainants in such bill to the life tenant having no
relation to the relief sought, except that the court might con-
sider it in determining the amount of security that might be
required of the son in possession, for the remainder of the fund.
Ib. 265.

10. Bill in equity to determine claims to real estate and to quiet title;
equity of such bill.-Where, in a bill filed under the act of the
General Assembly, approved December 10, 1892, (Acts of 1892-93,
p. 42), "to compel the determination of claims to real estate
*** and to quiet the title to the same," the averments are
sufficient to entitle the complainant to the benefit of the act,
the fact that in such bill the complainant, after setting out in
detail his chain of title to the real estate involved, also averred
in detail the source of the respondent's claim to the land in
controversy, by which averments it was shown that such claim
was so unfounded as to occasion no doubt of complainant's
title, does not take away the equity of the bill; the very pur-
pose of the bill being "to compel the determination of claims
to real estate **** and to quiet the title to the same," the
complainant was entitled to a decree on such facts, if true, and
if the facts as to the respondent's interest were not correctly
stated, it was the respondent's duty to set out by answer the
source of his title, and upon the hearing of such case, a decree
should be rendered determining the title to the property in-
volved in the suit. Loeb v. Wolff, 273.

11. Rescission of contract of purchase of the stock of a corporation ; suffi-
ciency of bill.-On a bill filed for the rescission, on the ground
of fraud, of a contract by which the complainant purchased of
the defendant a certain number of shares of the stock of a cor-
poration, when it is averred that the complainant, prior to the
execution of the contract sought to be rescinded, entered into
a written agreement with the corporation, in which said capital
stock was owned, for the purchase of the assets of the corpora-
tion, but that said agreement was mutually rescinded, and the
parties returned to their former rights and conditions, and that
subsequently the contract sought to be rescinded was entered
into with the defendant as a stockholder, it is not necessary, in
order to maintain such bill, for the complainant to offer therein
to carry out the first contract or agreement made with the cor-
poration; it not appearing that the rescission of the first con-
tract constituted a part of the consideration for the second, so

CHANCERY-Continued.

that the complainant would be equitably bound to perform the
first contract as a condition precedent to the rescission of the
second, and the two contracts being made by different persons
in the purchase of different property. Merritt v. Ehrman, 278.
12. Same; same. - Where the purchaser of the controlling interest
of the stock of a corporation files a bill to rescind the contract
of purchase, on the ground of fraudulent representations on the
part of the owner of said stock, upon which the purchaser re-
lied as an inducement to make the purchase, and it is shown by
the bill that the purchaser went into possession and control of
the corporation, it is not necessary that such purchaser, as a
condition for the obtaining of the relief prayed for, should offer
in his bill to account for the use and occupation of the corpo-
ration from the time of his taking possession; his indebtedness
in respect to such use being to the corporation, which was not
a party to the suit, and not to the stockholder from whom the
stock was purchased. Ib. 278.
13. Jurisdiction of equity in case of fraud; when remedy at law adequate
and complete.-In all cases of fraud, before it can be said that
the remedy at law is full, adequate and complete, it must ap-
pear that the defrauded party can obtain immediate relief,
either by affirmative or defensive action, or that he can not be
subjected to vexatious litigation at a distance of time when the
proper evidence to repel the claim may have been lost or ob-
scured, or when he may be disabled from contesting its validity
with as much ability and force as he can contest it at the pres-
ent time. Ib. 278.

14. Same; same; fraud in a contract of purchase.-Where a purchaser
has been induced, by fraud, to make a purchase, and gives his
notes and mortgage in part payment of the purchase price,
upon the discovery of the fraud, he may maintain a bill in
equity for the rescission of the contract and the cancellation of
the notes and mortgage, whether the notes be negotiable or
not, and his vendor insolvent or not; the remedy at law not
being full, adequate and complete, by reason of the fact that a
court of law has not the power to restore to him the notes and
mortgage, and he could not obtain immediate relief by affirma-
tive action, or because the vendor might delay action on the
notes until evidence to establish his defense is not available.
Ib. 278.

15. Injunction; fraudulent transferee can not maintain bill therefor.
The transferee of the property of a debtor, which was alleged
to have been fraudulently disposed of, can not maintain a bill
in equity to restrain the enforcement of a garnishment pro-
ceeding at law by a creditor of such a debtor pending a suit in
equity by other creditors of said debtor, seeking to set aside
the conveyance and to subject the same property to the pay-
ment of their demands. Chespeake Guano Co. v. Montgomery,
384.

16. Vendor and purchaser; rights of vendee after payment of purchase
money and acquiring possession; presumption as to title.-Where,
at the time of the purchase of land and the payment of the pur-
chase money and acquiring possession under such purchase, the
legal title to said land is in a third party to whom the vendor
had, a short time before, conveyed it, but who never paid any
consideration therefor, after the lapse of thirty years, during
which time the vendee had been in possession, exercising acts
of ownership and asserting hostile title thereto, it will be pre-
sumed that said third person conveyed the land to the vendee,
and that the legal title had become invested in him, and as

CHANCERY-Continued.

against such title of the vendee a quit-claim deed executed by
the vendor, or a deed conveying the vendor's interest executed
by a sheriff, after the lapse of thirty years, is of no avail; and the
vendee and those claiming under him are entitled to have the
quit-claim deed set aside and annulled and to have a deed exe-
cuted to him or them conveying the lands of which he or they
hold the title. Clemmons v. Cox, 567.

17. Bill to recover money paid on account of fraudulent misrepresenta-
tions; proper parties defendant.-Where a bill is filed asking
that an account be taken of money which complainant was
fraudulently induced to pay to one claiming to act as the pro-
moter of an intended corporation for himself and his associates,
and to recover such sum of money, and facts are averred show-
ing that in his acts in reference to the formation of the pro-
posed corporation said promoter contracted for large pecuniary
benefits to himself individually and defrauded those who paid
their money and were interested in the intended corporation,
but no relief is sought against any fund or property in the
hands of a trustee for the corporation, other persons who, like
the complainant, were subscribers to such corporation, whose
transactions with said promoter were separate and independ-
ent, who were in no way responsible for the fraudulent use of
complainant's money, and against whom no relief is sought, but
who claim an interest in the money received by said promoter
for the proposed corporation, or in property deeded to a trus-
tee for the company, are neither necessary nor proper parties
defendant. Jones v. Caldwell, 364.

18. Equity pleading; amendment of bill.-In determining whether a
bill as amended is demurrable, in that it makes a new case or
essentially departs from the case made by the original bill, the
controlling inquiry is, whether the allegations of fact, setting
forth the right and title of the complainant and the wrong or
liability of the defendant, are changed, and for them other
facts substituted from which the right to relief is deduced.
Truss v. Miller, 494.

19. Same; same; case at bar.-M. and C. jointly purchased a tract of
land, executed a joint note for the purchase price and gave a
mortgage on the land as security. They subsequently sold an
undivided interest in such lands to B., taking his note for the
unpaid purchase money, which recited that it was given for the
purchase money, and that the vendors reserved a lien for its
payment. An execution was issued on a judgment recovered
by one T. against B., and was levied upon the latter's undivided
interest in said land. At the sale under such execution T. be-
came the purchaser, he having notice of the vendor's lien, and
of the existence of the mortgage which had been executed upon
said land by B.'s vendors. M. paid the original note executed
by him and C. before its maturity, and the note and mortgage
were transferred to him. Subsequently M. filed a bill averring
the facts above set out, and prayed for an accounting and con-
tribution between him and C., and upon default of payment by
C. of the amount ascertained to be due, that the mortgage exe-
cuted by them be foreclosed, and that T., the purchaser at the
execution sale, be declared to be not a bona fide purchaser
without notice, and that the interest in said land purchased by
him be held liable for the amount due on the note executed by

CHANCERY-Continued.

B. Afterwards the complainant filed an amended bill, in which
he struck out the allegations in the original bill in regard to the
purchase of the note executed by him and C. jointly, and
averred that before its maturity he purchased and paid for said
joint note, thereby extinguishing it, and that he was entitled to
contribution from C. as joint maker, C. knowing of and con-
senting to said purchase. Regarding the purchase by T. as
judgment creditor of the interest of B., the same averments
were made as in the original bill, except that notice of the
mortgage on the part of T. was not alleged. The prayer of the
amended bill was for an accounting, for a decree adjusting the
respective rights of the parties to the suit, that T., as judgment
creditor, be declared not a bona fide purchaser, and that the in-
terest in the lands purchased by him be declared subject to the
vendor's lien and be sold, unless the promissory note of B. be
paid, and that C., as joint maker of the note with the complain-
ant, be held liable for contribution to complainant. Held: That
the amended bill was properly allowed and was not subject to
demurrer as being a departure from the case made by the orig-
inal bill, since the facts constituting the cause of action, and
from which the complainant deduced the right to relief were,
in both bills, substantially the same. Ib. 494.

20. Same; multifariousness.—A bill in equity which asks for contri-
bution from one of two joint makers of a note, secured by mort-
gage on real estate, and which also asks that the portion of the
same land which had been sold to a third person be declared
subject to the vendor's lien, and if the purchase price be not
paid that the interest in said lands be sold to pay the lien, is
not subject to demurrer on the ground of multifariousness.
Ib. 494.

21. Equity pleading; right of amendment. - Where in a bill filed ask-
ing for the dissolution of a co-partnership and the settlement of
the partnership business between the persons associated under
a firm name, and for a sale and distribution of the property be-
longing to such partnership, the allegations as to the real rela-
tions of the parties are ambiguous, a bill filed as an amendment
to the original bill, which seeks by its allegations to cure the in-
sufficient averments as to the relation of the parties, and avers
that they were owners in common of the property and prays for
a sale of such property and a division of the proceds between
the parties, does not substitute a new cause of action, nor is the
relief varied essentially from what could have been obtained on
the original bill; and, therefore, such amendment is properly
allowed. Stein v. McGrath, 593.

22. Same; bill for partition; insufficient averments as to property
sought to be partitioned.-An amended bill for partition, which
does not, in its stating part or premises, describe the property
sought to be partitioned, but refers for the description of such
property to the answer and cross-bill filed by the defendant to
the original bill, is not sufficient in its description of the prop-
erty, and is, therefore, subject to demurrer upon such ground.
Ib. 593.

2. ANSWERS, AMENDMENTS, DEMURRERS.

23. Equity pleading; conclusions of pleader; insufficient on demurrer;
fraud.-A demurrer to a bill in equity confesses only matters of
fact which are well pleaded, and not conclusions or inferences
of law or of fact, and when fraud is averred in general terms
and no facts are alleged constituting such fraud, the court can