Henry Billings Brown

“ As was justly observed by the learned judge of the circuit court: 'The only purpose of the seal is to authenticate the issuance of the writ. May not such authentication be furnished in other ways, if for any reason the court is without an engraved seal for a time? Suppose that to-day the engraved seal of O'Brien county should be destroyed or stolen, must all the judicial proceedings therein be brought to a stand-still, awaiting the procurement of another engraved seal? ”

“ But even if it be assumed that the facts relied upon as constituting an equitable estoppel in this case might be laid before a jury in a common-law action, and, if established, operate as a defense, yet it does not necessarily follow that a bill in equity will not also lie to cancel the outstanding deed from Adolph to Frederick Wehrman as fraudulent, or at least as unavailable under the peculiar circumstances of the case. There is a class of cases which hold that where there is actual fraud no remedy at law is complete and adequate, except that which removes the fraudulent title. ”

“ Ct. 249, there may be a doubt whether this remedy is available in personal actions, the law is well settled that, where title to real property is concerned, equity has a concurrent jurisdiction, because it may not only enjoin an action at law, but may order a cancellation of the fraudulent conveyance, and prohibit the bringing of further suits at law upon the fraudulent title, and thus afford a more complete relief than is possible in a court of law. ”

“ When it appears that one who now asserts a title to property, arising more than the lifetime of a generation ago, has during all these years neglected the property, and made no claim of title thereto, a reasonable presumption is that, whatever may be apparent on the face of the instrument supposed to create the title, were the full facts known, facts which cannot now be known by reason of the death of the parties to the transaction, it would be disclosed that no title was in fact obtained ”

“ He must have been in possession of the property; he must have been disturbed in its possession by repeated actions at law; and he must have established his right by successive judgments in his favor. Upon these facts appearing, the court would interpose and grant a perpetual injunction to quiet the possession of the plaintiff against any further litigation from the same source. ”

“ The object of the notice is to apprise the defendant of the commencement of the suit, and to call him in to defend, and prevent the plaintiff from obtaining judgment, if he can. The object of the writ, which is issued ex parte, is to enable the plaintiff to obtain a lien upon the land, which may be subsequently enforced by a sale upon execution, if judgment be obtained. ”

“ On the contrary, propriety and convenience suggest that the practice should not materially differ where titles to land are the subjects of investigation.' This case was cited and approved in Parker v. ”