Page:The New International Encyclopædia 1st ed. v. 07.djvu/200

* EQUITY. 17l> EQUITY. deeds to make them con form to the intention of irties. Whenever a term of a written con- tract is in in or omitted from it by mistake. entity will compel a reformation, or, more le'exeeution of the contract in ancc with the intention of the parties. Where a tainted with fraud, or there is a mis- take preventing a meeting of the minds of I tics, a court of equity will declare the contract tACT.) Upon simi- lar principles, equity will sometimes compel the t new documents to replace lost docu- ments which arc necessary to a claim of title. Uarshaling in equity is rather a general
 * •■<!. and compel it< cancellation by the par-
 * rule of procedure than a specific form

iif relief. Briefly stated, the doctrine is that he who has two funds to satisfy his demands shall not by his election to resort to one fund deprive another of his security who has only one of the two funds to satisfy his demand. Thus, in the law of suretyship, if one of the two sureties holds collateral security foi bis emu-act of suretyship, althouj i the principal debt, ^titled to the security of the creditor's obligation, equity will compel the first to resort to his collateral security in order not to deprive the other of the benefit of the creditor's security. iisiiii-. I Equity applies this doctrine' consistently, using any appropriate form of re- lief in order to accomplish the desired result. Ill Subrogation is also an equitable doctrine rather than a specific form of relief, and not one of universal application. In certain eases equity will, for the purpose of working justice, 'in' w ho ha- paid the debl of anoi an assignee of the debl or claim, in which case he 1 to In- subrogated to the debt or claim. Thus, one who ha- loaned money i" a corporation under an ultra vires contract, for the purpose of _ law ml debts of the corporation, may in equity he subrogated to the claims of those cred itnrs whose claim- are SO paid, in order to tin' injustice of denying him a recoverj of the him n. > loaned. The necessary limitations of this article will not permit a full discussion of this topic here. Bills. -Equity will compel a re- ance of pi av< yed by a jud ' in fraud litors, using the appro- priate remedy to subjeel the property to the plaint ill's judgi i tl i l ccout l quity will, in a proper case, compel a defendant t" state an account to the plaintiff, and then compel payment Oi thi amount bo found to be due. (See Account.) Thi-. relief mm ■ 'I on the ground that the de- nt i- a trustee or fiduciary, who i- (peculiar- ly the i equity jurisdict ion. or t li.it the account i- too involved and complicated to he i court of law. This .1 relief is to be distinguished from the now ecounl mmon law. (7) Contribution. — Equity will, in a pi obligati i'.'id tl bligation, compel the to contribute pro rata to the payment. i- most frequently applied among imon i tei appl and ii ip'ied pari have not incurred a joint obligat ion. bul who. on equitable principles, ate treated ae though th. i joint. II. Jurisdiction affecting titles or other inter- in propi rty may he classified as follows: ( 1) Bills to remove cloud on title. (2) Partition. 3) Bills to foreclose or redeem a mortgage. (4) Bills to enforce liens. (5) Jurisdiction over uses and trusts. The first two of these classes relate only to title or interest in real property. The others, although of primary importance in that connection, may also relate to title or in- terest in personal property. (1) Bills to Remove Cloud on Title. — Equity exercises its jurisdiction to compel the cancella- tion of any invalid document or record which, because of its apparent validity, creates a cloud, or apparent defect, in the title of the plaintiff. As has been pointed out. the form of relief is analogous to that granted upon bills quia timet. Strictly, however, the relief granted is not for the purpose of preventing a future attack upon the plaintiff's title, hut for the purpose of aid- ing the plaintiff to secure a present marketable title to his real estate. Partition. — Equity early took jurisdic- tion to compel a partition of real estate held by- joint tenants or tenants in common on the peti- tion of any of them. It might accomplish this re, ult by a division of the land among the sever- al tenants bj T means of mutual conveyances, or by directing a sale of the land and a division of the proceeds. Bills to Foreclose or Redeem a Mortgage. — This was one of the early forms of supple- mentary jurisdiction, and is a typical example of the growth and development of the equity system. s,e Equitable Estate; Foreclosure; Mort- gage. (4) Bills to Enforce Liens. — At common law the various forms of lien gave the lienor the right only to retain possession of the property which was subject to the lien. (See Lien.) Equity exercised its jurisdiction to enforce common-law lien-; by judicial -ale of the property, unless the defendant before the decree paid the amount due upon the lien. Equity also recognizes and en- forces a- liens mere agreements for a lien or mortgage which fall short of creating a common- law- lien. See Equitable Mortgage. (5) Jurisdiction Over Uses and Trusts. — Al- though this form of jurisdiction is in many ways analogous to the jurisdiction of equity over con- tract rights, its hasis is the obligation which equity imposes on the trustee to hold the legal title "I property for the benefit of another. For the pur] i .Heeling this result, equity com- pel- the trustee to do any requisite act. It may compel him I" convey the trust property or to account for its proceeds. It regards the interest of die beneficiary as analogous to a property in- terest it law, and as subject to analogous rules of devolul ion. III. J on in Aid "f Actions at Law. — In two classes of cases equity came to the assist- of parties to actions at law. The assistance was i' " lered by means of ( 1 I hills of discovery, iii- io perpetuate testimony. ill B cover)/. — It often happened that a p;n 1 1 io :m action at law was unable (either because of the rules of evidence or because of hi- inability to secure evidence in advance of a trial) properh Io prepare his case for trial or to prove hi- ea-e at the trial. Equity came to hi- .'ti<! by ■■ polling the defendant, in a proper case, i" make discovery' of the matter relevant