Page:Federal Reporter, 1st Series, Volume 10.djvu/869

 APGAB V. CHBISI0FHEB3. 657 �Apgar V. Cheistophers. �(Circuit Uourt, D. New Jersey. March 13, 1882.) �1. Eqoity— Enjoining Procbedings AT Law. �Where ihere is an equitable title in a defendant to an action of ejectment, the court of equity, at his suit, will restrain the proccedings in such action, and direct the cause to proceed in the court of equity, where all defences can be considered, and where in a single croceeding the whole controversy, in all its aspects, may be settled. �2. Same—Injd^ction— Relief. �Where a person is in possession of land by a good, equitable right and title, and he is so circumstanced as that the legal estate is either in himself or in another as trustee for him, and an action of ejectment is brought against him by the one claiming as well the equitable as the legal right, and denying the legal as well as the equitable title of the person in possession, a court of equity wiil grant relief by way of injunction, inasmuch as the plaintiS in ejectment would, recovering in the action, hold merely as trustee for the defendant in such action. �On Bill, etc. �P. Bentley, for the motion. �S. B. Ransom, for defendant. �Nixon, D. J, The bill of complaint filed in the ahove case sets forth in substance that in the year 1824 one Mary Vermilya departedthis life, seized in fee of certain real estate therein desoribed, situated in the county of Hudson and state of New Jersey; that previous to her death, to-wit, on the second of September, 1824, she duly executed her last will and testament, in which, inter alia, she devised the said real estate to her mother, Sarah Vermilya, her brother, Thomas Ver- milya, and her niece, Mary Ann Jarvis, in words following : �" And also I give and devise all my real estate, whatsoever and whereso- ever, unto by niece, Mary Ann Jarvis, my mother, Sarah Yermilya, my brother, Thomas Vermilya, all of the saidclty of New York, to the survivor of them, and to the heirs and assigns of such survivor." �It further alleges : That the devisee, Sarah Vermilya, died March 13, 18.34, leaving the said Thomas and Mary Ann surviving her. That on the tenth of October following the said Thomas, for the con- sideration of $100, made a deed of conveyance, without any cove- nants of warranty, to the said Mary Ann Jarvis, for "all of his estate, right, title, and interest whatsoever under the will of Mary Vermilya, or otherwise," in and to the said real estate, — the said deed contain- ing the following recitals : ��� �