Bean v. Bean's Adm'r , 37 Ala. 17 ( 1860 )

A. J. WALKER, C. J.

"Ohe of the objects of this bill is to recover the interest' of Dorcas Bean in the estate of her deceased husband, Alexander Bean. In that branch of the case, Charles Mallet, the co-complainant of Dorcas Bean, has not the-slightest interest, and he has no connection with it. For the purposes of this opinion, we will concede to the complainants* .without deciding the question, that upon the facts alleged the two complainants were, as distributees of. the estate of Mallet, vested'with a joint ownership in the property, which was originally derived ’from the estate of Riley, and the accessions -to it. This 'being conceded, the complainant Charles Mallet may have a -right to recover from the estate of ‘Beantfor the use of. his moiety of the property. But the ■ other complainant, Dorcas Bean, can have no such right; for, by the marriage in 1S46, to Alexander Bean, and the reduction to possession by the husband, the latter became entitled to his wife’s personalty, and to the usufruct of her real estate during the coverture. If she had a separate estate in the property, (which the bill does not show,) it is not affected by our married woman’s.laws, and‘the, husband’s representative would not be responsible to her for tbe income, rents, and. profits, which she had permitted him to receive during the coverture.-: — Roger v. Roger, 29 Ala. 247. There is no point-of view in which Dorcas Bean is interested in the recovery ibr the use by her husband of the property which she and her co-complainant had at the time of her marriage; and file same thing is true as to property procured with the .proceeds or income during the marriage. There is, therefore, not the slightest interest in Dorcas Bean, so far as-the right of her co-complainant to recover for the use of the joint property is concerned. The bill seeks nothing so far as the property itself is concerned ; for it is in the possession of Dorcas Bean, and does not seem to be even claimed by the heirs or representatives of Bean’s estate.

The bill, then, does not make out a case of any community of interest in the two complainants, but is designed to enforce rights distinct, unconnected, and having no relation to each other, and not such as to make it even a matter of convenience to consider them together. Such a bill is multifarious.

[2.] It is objected, that the chancellor dismissed the bill for multifariousness in the absence of a demurrer. It is rarely advisable, that a chancellor should, suet sponie, dismiss a bill for such a cause; still, this court has decided, that he may do so, and that the decree will not be reversed, if the objection really exists. — Felder v. Davis, 17 Ala. 418. The decision referred to is well sustained by the authorities, and we are content to abide by it. — 1 Dan. Ch. Pl. and Pr. 397 ; Story’s Eq. Pl. § 284 a; Greenwood v. Churchill, 1 M. & K. 516 ; 3 Howard, 411; 10 Ohio, 456.

Decree affirmed.