This section is from the book "Popular Law Library Vol7 Equity Jurisprudence, Trusts, Equity Pleading", by Albert H. Putney. Also available from Amazon: Popular Law-Dictionary.
Equity will decree the cancellation of a written instrument in two classes of cases: (a) where the instrument, although absolutely void, is valid on its face; and (b) where it is voidable on the ground of fraud or mistake.
If an instrument is void on its face equity will not interfere, as any legal action is unnecessary. This point was discussed by Chief Justice Marshall in the case of Peirsoll vs. Elliot,1 as follows:
"The court is well satisfied that this would be a proper case for a decree according to the prayer of the bill, if the defectiveness of the conveyance was not apparent on its face, but was to be proved by extrinsic testimony. The doubt respecting the propriety of the interference of a court of equity, is produced by the facts that the deed is void upon its face, and has been declared to be void by this court. It is therefore an unimportant paper, which cannot avail its possessor. The question whether a court of equity ought, in any case, to decree the possessor of such a paper to surrender it, is involved in considerable doubt; and is one on which the chancellors of England seem to have entertained different opinions. Lord Thurlow was rather opposed to the exercise of this jurisdiction (3 Bro., Ch. Rep., 15, 18), and Lord Loughborough appears to have concurred with him (3 Ves., 368), and in Gray vs. Matthias (5 Ves., 286), the court of Exchequer refused to decree that a bond which was void upon its face should be delivered up principally on account of the expense of such a remedy in equity, when the defense at law was unquestionable. In this case Chief Baron M'Donald said that the defendant should have demurred to the action upon that bond. Instead of that, he comes here professing that it is a piece of waste paper. He goes through a whole course of equitable litigation at the expense of two or three hundred pounds. In such a case, though equity may have concurrent jurisdiction, it is not fit in the particular case that equity should entertain the bill.
1 6 Peters, 95.
"Lord Eldon inclined to favor the jurisdiction. (7 Ves., 3; 13 Ves., 581.) He thought the power to make vexatious demands upon an instrument as often as the purpose of vexation may urge the party to make them, furnished a reason for decreeing its surrender.
"In 1 Johnson's Ch. Reports, 517, Chancellor Kent concludes a very able review of the cases on this subject with observing: 'I am inclined to think that the weight of authority and the reason of the thing, are equally in favor of the jurisdiction of the court, whether the instrument is or is not void at law, and whether it be void from matter appearing on its face, or from proof taken in the cause, and that these assumed distinctions are not well founded.'
"The opinion of this learned chancellor is greatly respected by this court. He modifies it in some degree by afterwards saying: 'But while I assert the authority of the court to sustain such bills, I am not to be understood as encouraging applications where the fitness of the exercise of the power of the court is not pretty strongly displayed. Perhaps the cases may all be reconciled on the general principle that the exercise of this power is to be regulated by sound discretion as the circumstances of the individual case may dictate and that the resort to equity, to be sustained, must be expedient, either because the instrument is liable to abuse from its negotiable nature, or because the defense not arising on its face may be difficult or uncertain at law or from some other special circumstance peculiar to the case, rendering a resort here highly proper, and clear of all suspicion of any design to promote expense or litigation. If, however, the defect appears on the bond itself, the interference of this court will still depend on a question of expediency, and not on a question of jurisdiction.'
"The court forbears to analyze and compare the various decisions which have been made on this subject in England; because after considering them, much contrariety of opinion still prevails both on the general question of jurisdiction, where the instrument is void at law on its face, and on the expediency in this particular case of granting a perpetual injunction, or decreeing the deed to be delivered up and cancelled; and because we think that, although the prayer of the bill is rejected, the decree of dismission ought to be modified."
A forged instrument may be ordered cancelled.2 Bills to remove clouds from title will be taken up in the following chapter.