§ 26. But, even if a county court has power to lay out a private way over another man's land, yet, to authorize an injunction for removal of impediments placed there by the owner of the land, it must appear, that, in locating the way, the least possible injury that could be, consistently with the end to be attained, is done to the owner of the land.' So there is no equity in a bill by an abuttor to prevent a city, in the exercise of its powers, from putting down curb-stones, on the ground that the city is proposing to set them on another than the true line; the matter turns upon a mere question of law, no irreparable injury is threatened, and, it seems, the case is not within equity jurisdiction. So a land-owner in a city, whose property in buildings will be damaged in value by a proposed change in the grade of a street, has no remedy by injunction against the mayor and council, but, if he has any remedy, it must be at law for damages.3 § 27. Where a person sells property lying within the limits of a city, and in the conveyance bounds it by streets, designated as such, in the conveyance, or on a map made by the city or by the owner of the property; such sale necessarily implies a covenant that the purchaser shall have the use of the streets. And any obstruction, by the grantors, which denies the exercise of this particular right of way, as a street, works irreparable mischief, and entitles the purchaser to relief, by injunction. In cases like this, the acts of Maryland, relative to opening streets in Baltimore, do not give the complainant, as matter of right, the redress to which he is entitled; and therefore it cannot be said, that, because of these acts, he is not remediless, except in a court of equity. But, to entitle the complainant to an injunction, the obstruction complained of must work to his great injury, in manifest violation of the obligations of the grantor; and the facts stated in the bill must show this. (See Chap. XXXI.) 1 Clack v. White, 2 Swan, 540. 2 Holmes v. Jersey City, 1 Beasl. 299. 3 Markham v. Mayor, &c., 23 Geo. 402. 4 White v. Flannigain, 1 Md. 525. 28. A land-owner cannot be compelled by injunction to keep open a way over his land for another's use, unless the right of the latter is clear and undoubted, or established at law.1 King v. M'Cully, 38 Penn. 76. CHAPTER XXVIII. LANDS; LEASE; MORTGAGE. 1. Questions of title. 3. Covenants of warranty. 4. Estoppel. 7. Lease-covenants. 9. Loss by fire. 8. Mode of occupation. 10. Insolvency of tenant. 11. Repairs. 26. Mortgage-sale, ejectment, and foreclosure by mortgagee. 34. Waste. 42. Miscellaneous points; fraud, &c. 48. Effect of foreclosure upon the mortgage debt; whether an action lies for the balance; whether the 12. Distress and other proceed- foreclosure is thus opened. ings for recovery of rent. 20. Waste. 23. Miscellaneous points. 54. Points of practice; receiver; sale; appeal. § 1. WE have already-Chapter VI.-considered the application of injunctions to restrain suits at law, including, more especially, suits relating to land. (a) It is sufficient to add, in the present connection, a general statement of the rule upon the subject of defences to such suits, in the words. of an approved writer and jurist. "If an ejectment is brought to try a right to land in a court of common law, a court of equity will, under proper circumstances, restrain the party in possession from setting up any title, which may prevent the fair trial of the right; as, for example, a term of years or other outstanding interest in a trustee, or lessee, or mortgagee. But this will not be done in every case; for, as the court proceeds upon the principle, that the party in possession ought not in conscience to use an accidental advantage, to protect his possession against a real right in his adversary, if there is any counter equity in the circumstances of the case, (a) See p. 246. As to injunction against a conveyance of land, see Spiller v. Spiller, 3 Swanst. 556. which meets the reasoning upon this principle, the court will not interfere. Thus, it will not interfere with the possessor, who is a bona fide purchaser for a valuable consideration, without notice of the adverse claim at the time of his purchase." § 1 a. On the other hand, it is remarked in a late case, in justification of, interference where no suit at law had been brought: "The orator, being in possession,—cannot himself institute any action at law to settle the title, and the defendants, though setting up a claim to the lands, have brought no suit against him, and have shown no intention to do so." 4 § 1 b. An injunction may be issued to prevent irreparable injury to land, though the title is disputed, if the defendant is irresponsible, or if there is no relief at law. The distinc tion is taken, that, where there is a privity of estate, as between a reversioner and particular tenant, an injunction may be had, without irreparable injury; otherwise, where the parties are strangers to each other in reference to the estate, or mutually adverse claimants; whether the act be waste or trespass. And, on the other hand, where both the title to, and the possession of, a tract of uninclosed lands were in dispute and spread upon the record, it was held that, while chancery would not undertake to decide which title should prevail at law, there might be a manifest propriety in declaring one of them to be of such a character, as to render it unwise for the court to exercise extraordinary powers, in prohibiting the exercise of acts of ownership under it. And, the title of both adverse claimants being spread upon the record, and the defendants showing that the complainants had controverted, both at law and in equity, in various ways, the title of the defendants, during fifteen years, and that the defendants had always maintained their title, so 2 Story, Eq. 219, § 913. 2 Per Poland, C. J., Eldridge v. Smith, 34 Verm. 487. 3 Spear v. Cutter, 5 Barb. 486. 4 Georges, &c. v. Detmold, 1 Md. Ch. Dec. 371. far as was necessary for their success, in every controversy; it was held that the defendants showed a title, and possession under it, of such a character, as would preclude a court of equity from enjoining them against acts of ownership under it.1 § 2. And it is said, in a late case, "Where there is a mere dry question of adverse title, a bill filed on that ground, without more, entitles the plaintiff to no relief whatever." Thus the defendants, a railway company, having bought land from A., who appeared by the book of reference to be the owner; the plaintiff, a neighboring owner, whose land was also taken, claimed title to the former lot, and brought a bill to enjoin the possession of, and waste upon it. Injunction refused. The court remarked: "If I were to hold that the plaintiff is entitled to the relief which he asks, and the railway company were to compromise with him, what is there to prevent some other person from filing another bill, showing plausible grounds of title? The consequence of which would be that the company would be stopped again. This is a mere case of adverse title, claimed upon very slight evidence indeed, and without alleging that an action of ejectment or an action of trespass would not give him all the remedy he can possibly be entitled to or wish for."3 3. The question of title often arises from the covenants of warranty in a deed. (See Chap. XIV.) Thus A. having sold land to B. with the usual covenants, B. brought his action on the covenant of seizin against A.'s widow, having given her notice of a defect only a day or two before. She searched out the defect, and procured conveyances to herself, which perfected the title, and which she tendered B., but he declined them. B. recovered judgment for the purchase-money with interest. The widow then brought her bill in equity, to compel B. to accept the deeds, and to enjoin his judgment, and an in Cornelius v. Post, 1 Stockt. 196. 2 Webster v. The South, &c., 1 Sim. N. S. 279. 3 Ibid. 272, 279. |