Cowles v. Andrews , 39 Ala. 125 ( 1863 )

A. J. WALKER, C. J.

Cowles & Ledyard, W. C. Bibb, and Lewis Owen, severally obtained decrees, subjecting slaves, in which Mrs. Moore had a separate estate, to the payment of their respective debts, owing to them by Moore and wife. On the day appointed for the sale of the slaves under those three several decrees, an agreement in writing was executed by the complainants in the decrees and Andrews. In that agreement it was recited, that the slaves were all advertised for sale on that day; that Andrews claimed them, by virtue of mortgages prior in date to the decrees, and that the slaves would bring more, if sold free from incumbrance; and it was thereupon agreed, that the slaves should be sold, that the register should hold the proceeds of the sale subject to the order of the chancellor, that “Andrews should file his petition, setting forth the grounds upon which he claimed said proceeds,” and that the chancellor should direct the register to pay said proceeds to the party entitled thereto. Andrews filed an informal petition, setting forth the grounds of his claim, and exhibiting the agreement. The petition neither prayed that any persons should be made parties thereto, nor prayed process against any person. It seems to have been filed on the 18th March, 1859. On the next day, the chancellor referred various matters to the register. At the February term, 1861, Cowles & Ledyard appeared, and asked that they might be made parties; and their motion was rejected, on the ground that they were already parties. The court proceeded to render a decree in favor of Andrews, for the fund arising from the sale of the negroes.

Neither Cowles & Ledyard, nor Bibb, nor Owen, were made parties by the petition, which was a matter distinct from the original causes; no process was served, upon them, and they were not in any way brought into court, or afforded an opportunity to answer and contest the petition. The agreement stipulates, that Andrews shall file a petition, and that the chancellor shall direct the disposition of the fund. We do not perceive that any inference of a waiver of the right to be made parties, and to contest the petition, could be drawn from that stipulation. If it could be, however, it is precluded by the subsequent parts of the agreement, which provide that the rights of Andrews are not admitted, and that the only object of the agreement was to absolve the title to the negroes about to be sold from conflicting claims, and to substitute the proceeds of sale for the property. The agreement left the fund produced to stand a subject of contestation, precisely as the property would have stood. Upon principles universally recognized, it would be irregular for the chancellor to make a decree, adjudging adversely to the rights of Cowles & Ledyard, Bibb, and Owen, without having them before him as parties, and affording them an opportunity, according to the established forms of chancery proceeding, to contest the adverse claims of Andrews. This is not the case of an ordinary petition, for some order or direction in a pending cause, touching the rights of the parties thereto. — 3 Dan. Ch. PL &. Pr. 1801. It presents new and independent matters, not pertaining to the original cause, and involves the interest of persons not parties to the original cause. It raises new questions, and presents new claims, unknown to the original cause ; and its allegations should be regularly presented in the form of a bill. — Hays v. Miles, 9 Gill & Johnson, 193. While the agreement may dispense with the necessity of a formal bill, it does not dispense with the making of parties, and the accustomed proceedings according to the rules of chancery practice.

Reversed and remanded,