Maxims: Follows the Law

September 24, 2013 § Leave a comment

“Equity follows the law” is one of the most misunderstood and misapplied maxims.

I have heard this maxim incorrectly invoked for the proposition that equity may not act unless there is a specific law, or that equity is inferior to the law.

I stated in a prior post on the maxims that, although equity will not suffer a wrong without a remedy, that concept is not unrestricted:

Over centuries the idea of “wrong” has been refined to include matters that are actionable, and to exclude those that the law deems not actionable. Judge Griffith explained it this way: ” … the maxim at this day is subordinate to positive institutions, and cannot be applied either to subvert established rules of law or to give a court of equity a jurisdiction beyond established principles.”

As I also said in that earlier post, “When the law bestows a right, it also extends a remedy that can be granted in equity. Conversely, a court of equity will not supply a cause of action where none exists in the law.” If a cause of action is recognized in either the common law or by statute, equity will give a remedy and forum to enforce it.

Here’s what Judge Griffith said on the subject:

“Whatever may have been the course of action in the formative period of the law, courts of equity no longer assume to annul or directly disregard the positive provisions of the established law: courts of equity are now as much bound by express rules of law concerning property and its interests as are courts of law, and particularly this is true of constitutional and valid statutory requirements and provisions. Wherever the rights or duties of the parties in a given state of facts are definitely defined and established by law, statutory or common, equity must enforce those rights and enforce those duties; and it is only when some countervailing, dominant, and equally well established equitable principle intervenes that a court of equity can assail or abrogate the legal right or duty. Therefore, in adjudicating questions of legal right, title or interest equity follows the legal rules, and even in adjudicating equitable titles, interests and estates, equity will follow the law where any clear analogy exists …” Griffith, § 40, p. 42.

In any case where the law does not preclude a remedy, equity will follow the law as far as the law goes, and if the law stops short in securing the rights of the parties. equity will continue the remedy until complete justice is done. Senter v. Propst, 190 Miss. 190, 207, 197 So. 100 (1940); Griffith, § 40, p. 42, fn 33a.

The maxim has even been interpreted so that a transaction that is invalid at law may be cognizable in equity. In Coffey v. Land, 176 Miss. 114, 120, 167 So. 49, 50 (1936), the Mississippi Supreme Court, with Justice Griffith himself writing, addressed the principle in a case involving mortgages on future crops, the statute providing for which had been repealed:

“Whenever it is declared under any long line of judicial precedents that a transaction is invalid at common law and yet is valid and enforcible in equity, it will be found that the distinction is preserved out of consideration of the fact that if such a transaction were bound up in the inflexible rules of the common law, injustice and hardship and general insecurity might result, whereas, if left to equity with its broader and more flexible powers and processes, a more perfect justice may be attained and the general security better served. We shall later herein seek by illustration to show that this is precisely the case as to annual crops to be produced in subsequent years. And as to any advancements made under our decisions, on the precise subject now under discussion beyond the strict bounds of the ancient common law, we would call attention to the fact that the common law is not an institution of exact and unchangeable rules, but is a system which progresses so as to accord with the general customs, usages, habits, and necessities of the people of the state, so far as agreeable to justice and reason; and this is at the same time to say that no court may, under the notion of making progress under the common law, pronounce any rule as being an allowable advancement upon the ancient common law rule, when the effect of it would be mischievous in its operation, contrary to the substantial interests of our people, and which in its tendencies would be subversive of their freedom.”

I am willing to concede that a decision like Coffey is a rare result, but it demonstrates the scope and power of equity vis a vis the law. It presented one of those infrequent occasions where ” … some countervailing, dominant, and equally well established equitable principle …” intervened and trumped the common law.

The spirit of equity is to ensure that justice is done.

Maxims: Substance over Form

September 23, 2013 § 7 Comments

“Equity looks to the intent, and will regard substance rather than form.”

I’ll let Judge Griffith do the talking here:

“Under this maxim, throughout the whole of the substantive law, equity deals with a matter according to its actual substance, and regards mere form as a secondary consideration. It pierces through the shell of a thing to what is within: it does not suffer itself to be circumvented by formal devices. And so, in procedure, it will not permit a mere technicality to conceal the real position of the parties, nor any mere form to divert the action of the court away from the actual merits of the cause. Mere appearances and external form will be put aside and the real relations of the parties will be ascertained and examined: no form will avail if the substance is wanting, and the form will be disregarded if the substance exists. This is not to be taken, however, as any declaration that essential rules of procedure may be disregarded. It means only that rules, when they do not go to the substantial rights of one of the parties, in a given situation, are not to be allowed to subvert, to mere technical form, the actual right of another.” Griffith, § 39, p. 42.

This approach is antithetical to what I call “Gotcha!” law in which the lawyers play procedural games in an attempt to catch the other in some overlooked dotting of i’s or crossing of t’s to justify sanctions or dismissal of pleadings or worse.  

It’s also directly opposed to discovery gamesmanship in which the parties try to hide assets, or create sham entities or transactions, or try to sidestep direct inquiries with misleading answers and a fog of insubstantial objections.

Proceedings in chancery should be more akin to a search for the truth rather than pharisaical quibbling over jots and tittles. “There is this general principle: A court of equity in the exercise of a broad discretion should see to it that wrong and oppression are not inflicted under the guise of legal procedure, but that justice be done as the very right of each case may demand.” Herring v. Sutton, 86 Miss. 285, 38 So. 235 (1905); Griffith, § 39, p. 42, fn. 32.

As caught up as we get in the procedural aspect of our procedural rules, we must never lose sight of the fact that they exist primarily to safeguard and protect substantive rights. Procedures are never an end in themselves. The rules point that out: “All pleadings shall be so construed as to do substantial justice,” (MRCP 8(f)); and “These rules shall be construed to secure the just, speedy, and inexpensive determination of every action,” (MRCP 1); and “These rules shall be construed to secure fairness in administration … to the end that truth may be ascertained and proceedings justly determined” (MRE 102).



Maxims: Specifically and not by way of Compensation

September 17, 2013 § Leave a comment

“Equity acts specifically, and not by way of compensation.”

Perhaps a more modern statement of this maxim would be, “Equity acts specifically, and is not limited to compensation.”

At common law, the courts were limited to awarding damages for actual injuries that had already occurred, or to order delivery of property to which the plaintiff could prove legal title. Equity, however, had the power to prevent future injuries and withholding of property, as well as to award compensation.

The function of equity is to right a wrong, to provide a remedy for it, and to preclude its recurrence.

In Judge Griffith’s words:

[Equity] adjudges, for instance, that a party who holds the legal title in trust shall perform the trust in the specific manner required by that trust; or it will cancel legal titles for fraud, mistake and the like, and freed therefrom will deliver the property to the rightful party, or it will reform a contract and enforce it as reformed to the end that the party shall have the specific thing to which he is entitled, — and in every situation it aims at a more complete and a more exact justice than that which is attainable at law, by rendering unto the party the specific thing in its specific original form, so far as possible, rather than the general relief solely of damages. Griffith, § 38, p. 40.

“A more complete and a more exact justice … ” the aim of every chancery court proceeding.

Above I stated that the maxim could be restated as “not limited to …” That’s because our courts have long held that if chancery court has subject matter jurisdiction it may exercise pendent jurisdiction over all legal (compensatory) claims associated with the equity claim. See, e.g., Hall v. Corbin, 478 So.2d 253, 255 (Miss. 1985). “If it appears from the face of a well-pleaded complaint that an independent basis for equity jurisdiction exists, then a chancery court may hear and adjudge legal claims. RE/Max Real Estate Partners, Inc. v. Lindsley, 840 So.2d 709, 711–12 (¶ 13) (Miss.2003). Conversely, ‘if the complaint seeks legal relief, even in combination with equitable relief, the circuit court can have proper subject matter jurisdiction and adjudge pendant equitable claims.’ RAS Family Partners [v. Onnam Biloxi, LLC], 968 So.2d [926,] 928 (¶ 11) [(Miss.2007)].”

The underlying philosophy of equity becomes more and more apparent with each succeeding maxim. Equity will fashion a remedy that meets and cures the situation and renders its recurrence less likely, not allowing title or possession to stand in its way. Equity is not limited to assessing damages. Equity may order that acts be done, may impose equitable trusts and other equitable remedies incidental to effective relief, may impose deadlines, and may punish noncompliance.

Maxims: In Personam

September 16, 2013 § Leave a comment

“Equity acts upon the person, or, equity acts in personam.”

The common law courts had no process to enforce the specific performance of a contract. The only remedy available was to award damages for the breach, and to issue execution and possessory writs. As the jurisprudence of equity developed, the chancellors sought not only to improve upon the means available in the law courts, but also to avoid the use of common-law writs that might create a conflict with those courts. The result was that the party in chancery was ordered personally to comply with the court’s order, or, failing to do so, to be subjected to jail or other sanctions for disobedience.

Much of chancery court’s power and authority today rests on this important keystone: that it may compel a person or entity to do any act or thing necessary and incidental to effect relief ordered by the court.

Judge Griffith says it this way:

Although in this state, modern statutes provide that a decree in chancery shall have all the force and effect of a judgment at law, and that when a conveyance, release, acquittance or other writing, it shall have all the force and effect as if the writing had been executed in accordance therewith, and although execution and all other process or similar process as known to law may now be issued out of chancery, nevertheless the decrees in chancery are still drawn largely in the form of orders in personam, and in addition to the statutory methods of enforcement, decrees in chancery are today as fully enforceable by personally compelling the party as they ever were, — except that now there may be no improsonment for debt. Griffith, § 37, pp. 39-40.

In the pre-rules days, all procedural rules and proceedings were statutory. The MRCP supplanted that system. Judge Griffith’s references to statute, of course, are subject today to the provisions of the rules.

It seems elementary to point out that the chancery courts act in personam, but this concept was a profound development in the law, and, as I said before, is a keystone of chancery practice.

MRCP 70 extends the reach of the in personam principle. It allows the court to enforce its in personam orders in several ways that were unknown to pre-rules practice, except through writs of assistance, seizure, and possession. R70(a) provides that, when a party fails to execute a conveyance or do some other act ordered by the court, the court may appoint some other person to do it, at the expense of the dafaulting party, and the act when so done is as effective and legally binding as if done by the person originally ordered to do it. R70(b) allows the court to divest title and vest it in another, rather than having to wait for a party to execute title. R70(c) permits the sheriff with a certified copy of an order for delivery of possession to seize property and deliver it to the person entitled to its possession, without further process of the court. R70(d) makes it clear that all of R70’s remedies are in addition to the court’s contempt power.

Maxims: Complete Justice

September 10, 2013 § 1 Comment

The second essential maxim is that “Equity delights to do complete justice and not by halves.”

In pre-rules practice, this was regarded as an important procedural concept that encouraged practitioners to join as many claims as existed in the umbrella of a single suit. As Judge Griffith explained:

The maxim has a complete operation in this state. It is our settled policy that if equity have jurisdiction of the cause of action it should assume full jurisdiction and settle all disputed questions in one and the same suit as far as within the pleadings, and the court will allow and may even suggest such amendments to the pleadings as will permit full adjudication. There not only may, but generally must, be included in the one suit every clearly evident feature of the controversy and there must be made as parties all those substantially interested, so that when the matter is thus settled there will be no doors left open out of which it is probable that furher suits or further contention will spring. In short, equity will not permit litigation by fragments when it can be avoided by bringing the whole cognate matter into one suit. Griffith, § 37, p. 39.   

From a procedural standpoint, all of the principles enunciated by Judge Griffith are incorporated into our MRCP. R15 allows, and even encourages, liberal amendments to make sure that there are no pleading obstacles to complete relief. R8(e)(2) and R18 allow a party to assert as many claims or defenses that he has, whether consistent or not. R14 allows joinder of third parties. R19 and 20 provide for joinder of any and all persons needed for a just adjudication. R21 rules out misjoinder as a ground for dismissal, and allows for severance of claims for adjudication. R24 makes provision for intervention. R25 sets out the rules for substitution of parties.  

From a philosophical standpoint, however, this maxim has had much broader impact. It means that, once the court has taken jurisdiction, it should do what is necessary to effect complete justice, and not to stop because of some perceived pleading impediments or non-joinder. The chancellor should give the parties an opportunity to amend and/or bring in parties necessary to afford full relief, and then proceed. The spirit of the maxim is that a chancery proceeding is not a Gotcha! game in which the parties try to catch each other with their pants down, so to speak, but rather is a search for what is right, fair, and equitable, leading to application of a remedy that will completely achieve that right, fair, and equitable result.

Maxims: No Wrong Without a Remedy

September 9, 2013 § 1 Comment

“Equity will not suffer a wrong without a remedy” is the maxim from which all of equity jurisprudence springs.

Over centuries the idea of “wrong” has been refined to include matters that are actionable, and to exclude those that the law deems not actionable. Judge Griffith explained it this way: ” … the maxim at this day is subordinate to positive institutions, and cannot be applied either to subvert established rules of law or to give a court of equity a jurisdiction beyond established principles.”

When the equity court has jurisdiction over the subject matter and the parties, it should be given wide latitude to fashion a remedy to correct a wrongful situation. As Judge Griffith stated:

“The maxim now means this: It is not necessary that some exact precedent must be found for extending relief in a given situation, if the case be such that under the established law of the land some relief is clearly requisite and a practical remedy consonant with established principles of procedure may be applied, — such a remedy is not to be denied merely because it cannot be found that the remedy was ever before applied in just that manner to that exact state of case. Under the operation of the maxim, modern equity is not authorized to create a substantive right where none such exists in the law of the land, nor to invent a distinctly new procedure to fit the case, beyond or outside of the procedural methods already established.” Griffith, Mississippi Chancery Practice, 2d Ed., 1950, § 35, p. 38. 

When the law bestows a right, it also extends a remedy that can be granted in equity. Conversely, a court of equity will not supply a cause of action where none exists in the law.

In its early days, as the law developed procedures and forms of operation, claimants were limited to a few writs by which they could bring causes of action before the courts. The variety of writs was necessarily restricted in number, lest the courts be overwhelmed by multiplicity of suits. This system worked adequately as long as the parties were feudal lords who were relatively few in number. As commerce grew, however, and as more and more individuals acquired property interests and wealth, more and more controversies arose that simply did not fit within the confines of the recognized writs. Claimants were forced to appeal to the conscience of the King for relief from wrongs for which the writs did not afford a remedy. The King, having other matters of state to deal with, delegated that responsibility to the chancellor, who soon needed counterparts to handle the caseload. Over time the chancellors established precedent and certain principles — the maxims — that they followed in cases presented. The legal system administered by the King’s chancellors came to be known as equity, separate and distinct from the law. 

At the very heart of equity is the principle that, if the court has jurisdiction, it will not allow a wrong recognized by our law to go unremedied, and it will always extend a remedy to a person who has a right conferred by the law. It is this principle, more than any other, that sets equity uniquely apart from the law.

The Maxims of Equity

September 5, 2013 § 10 Comments

I made the statement several weeks ago that:

” … when all of the parties are assembled and within the jurisdiction of the court, and the judge makes a fundamental ruling that affects the relationship among the parties, the chancellor should have the authority to reach out and effect complete relief. Our chancery courts are still courts of equity, according to the Mississippi Constitution. The MRCP did not erase the great maxims of equity from our jurisprudence …

Yes, the maxims of equity. Have you heard of them? If you graduated from law school before 1982, you probably spent some time in the law library committing them and some of their key cases to memory. Since then, I’m not so sure. When the MRCP went into effect, it seems that there was a de-emphasis on teaching the idea of equity in chancery. If the procedures were in most matters identical to circuit practice, why was all that folderol about equity necessary?

Today, in an age when even evidence has been eliminated as a required subject in law school, I shudder to think that there might no longer be any formal effort to educate law students in the philosophical underpinnings of chancery and, indeed, the entire system of equity that is administered in our chancery courts.

The Mississippi Constitution, § 159, specifically confers on chancery courts full jurisdiction in “All matters in equity … ” as well as certain other enumerated areas.

Equity is distinguished from the law in civil cases in that the law may grant a money judgment (and by statute may even enter an injunction), but equity courts act on the person, imposing duties and obligations, creating equitable remedies to carry out the court’s orders to set right what is found to be wrong. The court of equity is a court of conscience. As the great Judge Griffith stated,

“It is more than a trite phrase that the court of equity is a court of conscience; and it is immaterial what rights a party could assert in a court of law, — a court of equity will limit him to those rights of which he could conscientiously avail himself. It has been tersely expressed that nothing but conscience, good faith, and reasonable diligence can call forth the activities of a court of equity, and when these requisites are wanting, the court is passive and does nothing.” Griffith, Mississippi Chancery Practice, § 32, p. 35.

The foundation and spirit of equity have been distilled into aphorisms known as the Maxims of Equity. Every equitable proceeding touches on or embodies them in one way or another, whether expressly or impliedly. They inform not only the form, but also the substance, of all equity matters. Traditionally there were 12 great maxims and 12 so-called lesser maxims. Judge Griffith combined them into 14 essential statements of equity principles.

The 14 essential maxims are:

  1. Equity will not suffer a wrong without a remedy.
  2. Equity delights to do complete justice and not by halves.
  3. Equity acts upon the person.
  4. Equity acts specifically, and not by way of compensation.
  5. Equity looks to the intent, and will regard substance rather than form.
  6. Equity follows the law.
  7. Equity aids the vigilant and not those who slumber on their rights.
  8. He who comes into equity must come with clean hands.
  9. He who seeks equity must do equity.
  10. To protect and enforce property rights is the object of equity.
  11. When parties are disabled equity will act for them.
  12. Courts of equity will not tolerate interference with their orders nor with their officers in the enforcement thereof.
  13. No person bound to act for another can act for himself.
  14. No person should be condemned without a legal chance to be heard.

The last two are equally applicable in law and equity courts.

If you’re going to spend time in chancery, you have got to understand how these maxims act as the very structure of equity upon which the chancellor bases his or her rulings.

This begins a series of posts that will focus on the Maxims of Equity. I will quote liberally in each from Judge Griffith’s 1950 monumental work on chancery practice. Although his tome is of only academic interest insofar as it relates to the pre-MRCP practice in chancery courts, Judge Griffith’s masterful grasp of the law of equity and its philosophy is unmatched. His book, now out of print, was once considered the authoritative work on Mississippi chancery practice, and was even employed as the law school textbook on the subject in the pre-MRCP era.

My goal is to acquaint a new generation of Mississippi solicitors (the traditional term for practitioners in Mississippi chancery courts) with these concepts, and to try to reintroduce them into the 21st century discussion of chancery court practice for the rest of us.


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