[83] VIRGINIA OIL COMPANY, "Mrs. S. C. Savage. declaration of the semi annual dividend she-that, when the 1st of June, 1885, arrived she "DEAR MADAM: Your favor of the 5th is rec'd. Our company have tho't it wise-as many other m'f'g Co's who have not a large surplus of capital have also-in view of the depression in business which causes payments to come in very slowly, to omit a semi-annual declaration of dividend. "You are mistaken in supposing that the "You will see, therefore, it is in the interest "JOHN TYLER, Pres't;" he must show a recognized right in which he is en- Equity has no jurisdiction of a suit for infringe- A possessory right to land acquired by adverse possession may be settled at law, and is not cognizible in equity. Jameson v. Emerson, 82 Me. 359. A dispute as to boundary between one who is in the peaceable possession of all the land he claims, and an adjoining proprietor, is not cognizable in equity as there is a remedy by ejectment. Wilson v. Hart, 98 Mo. 618. Equity has no jurisdiction of an action to enforce a forfeiture in favor of a party out of possession against one in possession. The remedy is at law. Grummett v. Gingrass, 77 Mich. 369. A nuisance by maintaining a fence or other obstruction across a street may be abated in chancery, although the party has a legal remedy. Demopolis v. Webb, 87 Ala. 659. A suit in equity cannot be maintained to enforce a right when the party has an adequate remedy at law. Alley v. Chase, 83 Me. 537. A suit in equity cannot be sustained in a federal court, where there is a plain, adequate, and complete remedy at law. Scott v. Neely, 140 U. S. 106 (35: 358); Whitehead v. Shattuck, 138 U. S. 146 (34: 873). The court of chancery is not justified in declining Jurisdiction unless it appears that the legal remedy pleaded is neither donbtful nor obscure, and that it will secure to the person asking relief his whole right in a perfect manner. Essex County Freeholders v. Newark City Nat. Bank (N. J.) 14 N. J. L. J. 79. The bill also alleged that, for some time before 1881, Tyler and Otley, under the firm name of John Tyler & Co., conducted at Richmond a business in oils, railroad grease, etc., and with Tanner, Montague, Davenport, and Belvin formed a corporation under the laws of Virginia, known as the Virginia Oil Company, with a capital of not less than $15,000 and not more than $300,000, the stock to be divided into shares of the value of $100 each, to pursue the business of refining and wholesale and re has both common law and equity jurisdiction, A court of equity has no jurisdiction to settle the The existence of a controverted boundary does not constitute a sufficient ground for the interposition of a court of equity; there must be some equitable ground attaching itself to the controversy,such as confusion of boundary by fraud; a relation between the parties making it the duty of one to preserve and protect the boundaries; or an action in equity to prevent a multiplicity of suits. Walker,v. Leslie, 12 Ky. L. Rep. 581. Where the ground of the complaint of a gas company against a village is that the village is using more gas than it is entitled to under its contract for street lamps, an action at law will lie for the value of the excess, and the case is not one for equity. Saltsburg Gas Co. v. Saltsburg, 10 L. R. A. 193, 138 Pa. 250. The owner of the equitable title to moneys deposited in a bank may maintain a suit in equity against the bank to enforce his right; his remedy is not one at law. Union Stockyards Nat. Bank v. Gillespie, 137 U. S. 411 (34: 724). Where an action is simply for the recovery and possession of specific real or personal property, or for the recovery of a money judgment, the action is one at law. Whitehead v. Shattuck, 138 U. S. 146 (34: 873). The remedy at law would be wholly inadequate where the continuing right to use a right of way is denied, and therefore the case is within the jurisdiction of equity. Joy v. St. Louis, 138 U. S. 1 (34: 843). A bill in equity for infringement of a patent, filed the day before the patent expired, making no case for an injunction, presents no case for equitable jurisdiction, as the remedy is solely at law. AmerA bill in equity filed in the superior court, which ican Cable R. Co. v. Citizens R. Co. 44 Fed. Rep. 484. 143 U. S. U. S., Book 36. 6 85 [84] [85] The bill further alleged that the sum of $10,000 having been unlawfully obtained from the plaintiff by the misrepresentations of the af fairs of the said company by John Tyler, its president and duly authorized agent, and the same having gone into the treasury of, and been expended by, the said company, the sai sum, with interest thereon from the 1st day of June, 1884, is justly due her by the said Tyler and Virginia Oil Company, and she has a right to require all the proper assets of the company to be gotten in and to have them applied to the liquidation of the debts due her and others; that, if any money was due to the company for any part of the subscription of Evans to its stock, both Evans and Crane (the assignee of his stock) were debtors to the company there for; that the company was insolvent; and that it was necessary that a receiver of its assets should be appointed. The bill prayed for answers by the defend ants to the following interrogatories: "1. What amount of stock has been issued by the Virginia Oil Company, to whom, and when is sued? 2. What was the consideration paid for said stock by the several stockholders, and when and how has it been paid? 3. What sums have been paid to the said stockholders as dividends and when were they so paid and by what authority? 4. What sums have beer paid to the several defendants who claim to have been officers of the company and by what authority? 5. Whether any stockholder has surrendered his stock to the company; and, if so, when and what was paid him for the same: 6. What was the statement made to the stockholders at the end of each fiscal year, of the condition of the company and its business, by the president and directors, or any of them? 7. What meetings of the stockholders have been held, and what were their proceedings at such meetings? 8. How was the money paid in by your oratrix for her stock expended by the company? 9. How and when was the capital lost? tail dealing in petroleum oils, the manufacture | such directors and stockholders liable to the The bill further prayed for an account of the assets and debts of the company; that the assets be realized as quickly as possible and the funds arising therefrom be paid to its creditors; that the plaintiff's claim to be repaid the money she was induced to pay for the stock issued to her, with interest thereon, be established and be made a debt of the company, and payment of the same be decreed to her; that an injunction be granted, restraining the company aud its officers and agents from managing or interfering in its affairs; that a receiver be appointed to take charge of its property and effects, and administer them under the direction of the court; and that general relief be granted and all orders made that the nature of the case might require and to the court might seem meet. On notice, a receiver was appointed, and all the defendants, except Evans and Crone, were served with a subpoena. Otley answered the bill and the interrogatories, and alleged that he was not liable to the plaintiff. Tyler entered his appearance as president of the company and in his own right. The bill was taken as confessed against Tanner, Montague, and Belvin. Tyler answered the bill, admitting that 186 [87] [88] he wrote the letter of April 10, 1884, averring The new receiver reported in January, 1887, In July, 1887, the master filed his report as to the nine items of inquiry referred to him. He reported that the shares of capital stock issued by the corporation were, as stated in the bill, 283 in number, including the 100 issued to the plaintiff; that the plaintiff paid for her stock on May 19, 1884, although the certificate issued to her was dated May 31, 1884; that the consideration paid by Tyler and Otley for their stock was the good will of the business of John Tyler & Co., and a number of valuable recipes and formulas for the manufac The plaintiff replied generally to the answers the year, and 7 per cent on that owned by stock- and fixtures of that business," the former val- As to the inquiry what was the condition of the affairs of the corporation on or about June 1, 1884, and as to whether it was solvent and in a prosperous condition on April 10, 1884, the date of Tyler's letter to the plaintiff, the master reported that, according to a statement made by Tyler, the assets then exceeded the liabilities by $3,261.45, but the items of assets in that statement included $5,000 for the stock purchased from Otley; that such $5,000 ought to be stricken out entirely, or, if the stock was paid for out of the company's money, ought to be reduced to the $2,500 actually paid, leaving an excess of assets of $761.45 to represent the whole of the cash paid stock; but that, as Otley's stock was purchased without authority from the corporation, and the purchase never was approved by it, that item of $2,500 also ought to be stricken out, and thus Tyler's statement presented the corporation as having lost its entire cash paid stock and being largely in debt besides; that the formulas and recipes purchased for $8,486.84 were then and ever since had been without value or at least unsalable; and that, in a word, the corporation was bankrupt. The master reported further that on May 19, 1884, the day the plaintiff's stock was paid for, [89] [90] [91] there was paid to a bank in Richmond by the company $5,900, of which $4,900 went to take up notes of the company, indorsed by Tyler and Tanner, and $1,000 to take up a note of Tyler's, secured by stock of the company; that on May 20, 1884, $300 was paid to Tyler by the company for loans made to it by him in the previous part of that month; that on May 18, 1884, the cash receipts and payments were very nearly balanced; that after that date to the close of that month the receipts were about $320, and, according to Tyler's statement, the amount on hand June 1, 1884, was $246.32; and that it was obvious, therefore, that the large payments above mentioned were made from the money received from the plaintiff. The master with his report returned the depositions he had taken. The plaintiff filed exceptions to the report, but none of the defendants excepted. The case was heard, and on the 20th of February, 1888, a decree was made which stated that "the court, being of opinion that the defendant John Tyler, individually, and the remaining assets of the Virginia Oil Company, are liable to the plaintiff, Sarah C. Savage, for the sum of ten thousand dollars paid by her into the treasury of the company, at the instance of the said John Tyler, on the 19th day of May, 1884, for a certifi cate of one hundred shares of stock in said company, which said company was represented to her by the said Tyler, its president, to be in a flourishing condition, when, in fact, it was insolvent, doth so decide, and having caused a statement to be made and filed, marked (R. T.), showing how the fund of $176.24 in the Merchants' National Bank of Richmond to the credit of this cause should be distributed, doth adjudge, order, and decree that M. F. Pleasants, the clerk of this court, do draw a check upon the said fund to the credit of the court in this cause in the Merchants' National Bank of Richmond, in his own favor, for the sum of $88 in full of his fees and charges in this cause, and a check upon the said fund in favor of W. W. Henry, attorney for Sarah C. Savage, for $50, the amount of cost paid by the plaintiff in this case, and that he do check upon the said fund for the balance thereof, to wit, $33.24, in favor of the said W. W. Henry, attorney for Sarah C. Savage, of which $20 is the docket fee taxed for plaintiff's attorney, and $13.24 shall be a credit upon the said claim of the plaintiff for ten thousand dollars; and the court doth further adjudge, order, and decree that the defendant John Tyler, do pay to the plaintiff, Sarah C. Savage, ten thousand dollars, with interest thereon at the rate of six per centum per annum, from the 19th day of May, 1884, till paid, subject to a credit of $13.24 as of this day, and that the plaintiff be at liberty to sue out execution for the same; and the report of the master is confirmed in all other respects.' The court thus distributed a fund of $176.24 [171.24?] in its hands, the proceeds of the prop erty of the corporation, by paying to the clerk $88 for fees, and to the plaintiff's attorney $50 for costs, and $20 as a docket fee, and the remainder, $13.24, as a credit on the claim of the plaintiff for $10,000; and then it ordered the defendant Tyler to pay to the plaintiff $10,000, with interest at six per cent from May 19, 1884, subject to a credit of the $13.24, as of the date of the decree. From this decree, Tyler appealed to this court. It is assigned for error (1) that the record does not present a case for the exercise of jurisdiction in equity; (2) that the decree is outside of the case made in the bill, which is for the enforcement of the corporate liability of the Virginia Oil Company; (3) that the evidence does not warrant the imputation of fraud to the defendants Tyler and the Virginia Oil Company; and (4) that the decree is devoid of support in the record. (1) It is contended that the only ground on which the bill can be supported against Tyler is, that it contains averments to the effect that he is indebted to the corporation on account of his stock in it; that what is thus owed by him is a part of its assets; and that the plaintiff has an equity to compel payment of the amount thus due, and to subject it to her claim for damages against the corporation. It is contended that, stripped of those averments, the bill is nothing more than a declaration in an action on the case, at law, for the recovery of damages for a false representation; that, as the case stands in the record, with reference to Tyler, it is wholly destitute of equity, and therefore the court decreed on a case that was beyond its jurisdiction; that the only equity which the plaintiff pretended she had against Tyler was to compel him to pay in money for his stock in the company, it being averred that what had been claimed to be a payment for the stock was largely fraudulent and fictitious; that the master did not find that the stock issued to Tyler was not fully paid for, and, the plaintiff having excepted to the report, because the master did not so find, the court confirmed his report in that respect; that, as the plaintiff took no appeal, the case was thus left destitute of equity against Tyler, and the bill should have been dismissed; and reference is made, under this head, to the cases of Russell v. Clark, 11 U. S. 7 Cranch, 69, 89 [3: 271, 279]; Thompson v. Central Ohio R. C5. 73 U. S. 6 Wall. 137 [18: 765]; Phænir Mut. L. Ins. Co. v. Bailey, 80 U. S. 13 Wall. 616 [20: 501]; Parkersburg v. Brown, 106 U. S. 487, 500 [27: 238, 243]; Buzard v. Houston, 119 U. S. 347, 352 [30: 451, 453]; Kramer v. Cohn, (119 U. S. 355, 357 [30: 339, 440]; and U. S. Rev. Stat. § 723. The bill set out a case of fraud practiced upon the plaintiff by Tyler, in that, in order to induce her to purchase the $10,000 of stock, he, as president of the company, sent to her the letter of April 10, 1884, upon the statements in which she relied and had a right to rely. It was alleged in the bill that the letter, both by its statements and its omissions, was false and deceitful, and operated as a fraud upon the plaintiff, and that, $10,000 having been obtained from her unlawfully, by the misrepresentations of the affairs of the company by Tyler, its president and duly authorized agent, and having gone into its treasury and been expended by it, that sum was justly due her by Tyler and the company, with interest, and she had a right to require all the proper assets of the company to be gotten in and applied to the debts due to her and others; that [94] [95] [96] the company was insolvent; and that a receiver | might be recovered in an action at law; and ought to be appointed for it. The bill also required from the defendants answers to the interrogatories which it contained. Tyler and Otley, in their answers to the interrogatories, referred to the books of the company as containing the facts which would give answers to those interrogatories; and Tyler, in his testimony, referred to the books as showing the facts in regard to the condition of the company on June 1, 1884. The information obtained from the answers to the interrogatories and from the proofs in the books showed the insolvent condition of the company on June 1, 1884, and that, as the master reported, it was at that date bankrupt. Tyler must be held to have had knowledge at that time of the condition of the company, as he was its president, and commenced keeping its books about March, 1883; and he is chargeable with knowledge of the facts, reported by the master, that of the $10,000 paid by the plaintiff he received personally the benefit of $8,200. The recovery by the plaintiff thus depended largely on the information in the possession of the company and of Tyler, and which was sought for by the bill; and an application of the assets of the company, to replace such of the money paid by the plaintiff as had been used by it, was necessary before Tyler could be made responsible individually for what the assets of the company would not pay. Thus there were in the case, as ingredients to support the jurisdiction of equity, discovery, account, fraud, misrepresentation, and concealment. Story, Eq. Jur. § 64k, 67, 184, 191; Jones v. Bolles, 76 U. S. 9 Wall. 364, 369 [19: 736]. Under section 723 of the Revised Statutes, the remedy at law, in order to exclude equity, must be as practical and as efficient to the ends of justice and its prompt administration, as the remedy in equity. Boyce v. Grundy, 28 U. S. 3 Pet. 210, 215 [7: 655, 657]; Phonix Mut. L. Ins. Co. v. Bailey, 80 U. S. 13 Wall. 616, 620 [20: 502]. In Russell v. Clark, 11 U. S. 7 Cranch, 69, 89 [3: 271,279], the bill was one for discovery, and the answer disclosed nothing, the plaintiff supporting his case by testimony in his own possession. In the case now before us, discovery was only one of the grounds of jurisdiction, and the answers to the bill disclosed, through the books of the company, facts which the plaintiff sought to discover. In Parkersburg v. Brown, 106 U. S. 487, 500 [27: 238, 243], it was held that there was a plain, adequate, and complete remedy at law for the relief granted by the decree. In the present case, discovery was prayed for and made, the affairs of an insolvent corporation were settled up, the subscription to stock made by the plaintill was substantially canceled, part of the proceeds of the assets of the company were applied to the repayment of the $10,000, and a decree for the balance was made against Tyler, the agent of the company, who had committed the fraud. In Buzard v. Houston, 119 U. S. 347 [30: 451], the ruling was, that a court of equity would not sustain a bill in a case of fraud, to obtain only a decree for the payment of money by way of damages, when the like amount that, if a bill in equity showing ground for legal and not for equitable relief, prayed for a discovery as incidental only to the relief sought, and the answer disclosed nothing, but the plaintiff supported the claim by independent evidence, the bill ought to be dismissed, without prejudice to an action at law. In Kramer v. Cohn, 119 U. S. 355 [30: 439], the ruling was, that a bill in equity by an assignee in bankruptcy against the bankrupt and another person, alleging that the bankrupt, with intent to defraud his creditors, concealed and sold his property, and invested the proceeds in a business carried on by him in the name of the other defendant, should, on a failure to prove the latter allegation, be dismissed without prejudice to an action at law against the bankrupt. The present case is not within the rulings in the cases thus referred to. Moreover, the objection now made to the jurisdiction in equity was not raised in the court below, by answer or otherwise. It is said in Thompson v. Central Ohio R. Co., 73 U. S. 6 Wall. 134, 137 [18: 765, 767], that usually, where a case is not cognizable in a court of equity, the objection is interposed in the first instance, but that if a plain defect of jurisdiction appears at the hearing or on appeal, a court of equity will not make a decree. The present case, as before demonstrated, so far from showing a p'ain defect of equity jurisdiction, is a case for its exercise. In recent cases in this court the subject of the raising for the first time in this court of the question of want of jurisdiction in equity has been considered. In Reynes v. Dumont, 130 U. S. 354, 395 [32: 934, 945], it was said that the court, for its own protection, might prevent matters properly cognizable at law from being drawn into chancery at the pleasure of the parties interested, but that it by no means followed, where the subject-matter belonged to that class over which a court of equity had jurisdiction, and the objection that the complainant had an adequate remedy at law was not made until the hearing in the appellate tribunal, that the latter could exercise no discretion in the disposition of such objection; and reference was made to 1 Daniell, Ch. Pr. (4th Am. ed.) 555; Wyle v. Core, 56 U. S. 15 How. 415, 420 [14: 753, 755]; Oelrichs v. Spain, 82 U. S. 15 Wall. 211 [21: 43], and Lewis v. Cocks, 90 U. S. 23 Wall. 466 [23: 70]. To the same effect are Kilbourn v. Sunderland, 130 U. S. 505, 514 [32: 1005, 1008]; Brown v. Lake Superior Iron Co. 134 U. S. 530, 535, 536 [33: 1021, 1024, 1025]; and Allen v. Pullman's Palace Car Co. 139 U. S. 658, 662 [35: 303, 305]. (2) As to the decree being outside the case made in the bill, we think the allegations of the bill as to the fraud are adequate, and that the statement of the decree that the company was represented to the plaintiff by Tyler, its president, to be in a flourishing condition, when in fact it was insolvent, is a sufficient support of the allegations of fraud made in the bill. The averment of the bill that the $10,000 was justly due to the plaintiff by Tyler and the company, because that sum was unlawfully [97] |