Gibbs v. Clagett , 2 G. & J. 14 ( 1829 )

.Dorsey, J.

delivered the opinion of the court.

The bill states that Thomas Gibbs, late of Anne Arundel, died seized of a tract of land called Gibbs’ Inheritance, which the complainant and his sisters, the defendants, inherited in co-parcenary. That it was appraised under the act of descents, in virtue of proceedings in Anne Arundel County Court, and beiug adjudged incapable of division, the complainant elected to take the same at the appraisement, and accordingly gave hond to the State of Maryland, in the penal sum of $3000 ; conditioned for the payment of $612 75, to each of the other heirs for their proportion; the land being valued at $ 15 per acre, and supposed to contain 204 acres, but that in fact, it contains but 190 acres, as appears by actual survey, since made. Exhibit A, is referred as a transcript of those proceedings, but it is nowhere to be found in the record before us. The bill further states, that Elizabeth Clagett, one of his sisters, hath brought suit on said bond in Anne Arundel County Court, recovered judgment thereon, and levied a fi. fa. on the property of the complainant, which is now advertised for sale. That Thomas Gibbs died in 1811, having first made his last will and testament, sufficiently executed and attested to pass his personal, but not his real estate, by which he devised the whole kof his real and personal estate to his wife for life, giving to Ms single daughters a home therein, and after the death of his wife, devising the land to your orator, and imposing on him, during his mother’s life, the duty of superintending .the whole property for her. That after the death of Thomas Gibbs, the widow and her single daughters, (Elizabeth Clagett being the only one who had married, but was then a widow,) continued to reside on, and cultivate said land, with the consent of said Elizabeth Clagett, and the complainant, until the father’s will was discovered about three years after his death, when it was agreed between all his heirs, that the will should have the same effect it would have had if properly executed, except so far as related to the complainant, and that in pursuance of such agreement, the maiden sisters and mother continued to reside on and cultivate said land, until her death, which happened in the fall of 1815, the complainant superintending the farm during that period. That Thomas Gibbs died considerably in debt, and that letters of administration on his estate, were granted to the complainant, on the 9th of August, 1814, who returned an inventory amounting to the sum of $2717 60; and on the 6th of May, 1816, passed Ms first account, in wliicli lie was credited with $313, the amount of his commission on the inventory and some debts paid. That on the 11th February, 1819, he passed another account, in which he was credited with debts due to himself and others, amounting to the sum of $1515 75-2-, and that on the 16th of October, 1824-, he passed another account, and obtained credit for $1764 65, for claims due by his father’s estate, and paid by the administrator, or authorised to be retained by him for his own claims, no part of which credits were paid out of the personal estate of the deceased, although amounting to $876 301- more than the whole amount thereof. The vouchers for all which claims, are stated to have been filed with the bill, as are also copies of said accounts settled with the Orphans Court. The hill also states, that the complainant had paid other debts of the deceased, which he will make appear, and prays to be allowed for. And that the whole of the personal estate of Thomas Gibbs was, in the fall of 1816, distributed between the complainants and defendants, by persons selected for that purpose, with which distribution, all parties at the time professed to he satisfied, and still retain possession of the proportions of property to them respectively allotted. That at the time such distribution was made, it was agreed between the complainant and his sisters, that he should elect to take the land, at the commissioners valuation, and that he should be allowed out of the said valuation, all sums of money, wi tlx which he should be credited by the Orphans Court, as administrator of his father, and all sums which he should be entitled to out of his father’s personal estate, and all claims against it, which he, as admhxistrator, had paid or should pay. The defendants’ by their answer, admit the proceedings in Anne Arundel County Court, as regards the land, the electioxx of the complainant to take the same at the valuation, as stated in the bill. They admit also the deficiency iix the quantity of the land, and that the complainant shall he entitled to a credit from each of these defendants for the sum of fifty-two dollars and fifty cents, being the amount of their several proportions of said deficiency. The defendant, Elizabeth Clagett, admits the judgment, execution and levying thereof on the property of the complainant. The defendants admit the "will of Thomas Gibbs, and the time and circumstances attending the execution and discovery thereof, as stated in the bill, and the agreement of all the parties, that during the life time of the mother, the property should be held in the manner directed by the will; but they allege that by that agreement, “ for the purpose of saving the personal property from being sold, the crops made on the land, and the whole profits of the real and personal estate, should be applied to the payment of their father’s debts.” The defendants deny that the complainant, from the time of his father’s death, continued to reside on the farm and to cultivate it, or superintend it for the use of their mother, until her death. But they charge that the complainant, during the time, and even prior to the death of their father, rented and cultivated for his own use, another farm at some distance off, and received the whole profits thereof, and that he could not have given the necessary attention to both places, and his only services were to sell the produce of the farm, and to apply the proceeds to the payment of their‘deceased father’s debts. The defendants then “ charge that, at the time of their father’s death, there was on hand thirteen hogsheads of tobacco, part of the personal estate, which were sold by the complainant, who received the price thereof, but has not accounted for the same.” They also state, that in the year of their father’s death, there was made on the farm three hogsheads of tobacco, one other crop which was sold to John Claytor, and two other crops sold to Richard Estep; all of which were sold by the complainant, but are not accounted for. They also charge, that the rents and profits of the estate, received by the complainant, if fairly applied, were more than sufficient to pay their father’s debts, and they deny that any allowance should be made for the superintendance of the farm. They also state, that the complainant had the sole use, and received the wages of two sawyers, and one plantation hand, for eight years; and that the complainant, so far from pretending, at the time of the division of the personal estate, that there was not a sufficiency to pay the debts of the deceased, then expressly stated, that the debts were all paid, except one of William Stewart’s, of forty dollars, and that he had in his hands at that time, a balance of $600, arising from the sales of the tobacco, and that a crop of tobacco was hanging in the house. They further state, that at the time he took from the estate the two sawyers, as aforesaid, he said their wages would pay all the debts; and the defendants deny that any part of the monies arising from the sales, ever was applied to the support of the family, or either of these defendants, but was received and expended by the complainant himself. They positively deny that there ever was, either at the time of the division of the personal estate, or any other time, any agreement or understanding, that the complainant should be allowed out of the valuation of the real estate, any sums of money whatever, for charges and credits which might be allowed him by the Orphans Court, as stated in the bill of complaint.

An injunction having issued as prayed, upon the filing of the bill: on hearing the motion to dissolve the same, after the answer came in, the Chancellor passed an order, that the injunction be “dissolved, except as to the sum of $52 50, for which sum the said Elizabeth Clagett, is hereby required and enjoined to give the said Thomas Gibbs credit on her judgment.

Upon the return of the commissions with the testimony taken under them, the Chancellor, upon various grounds which are assigned in his decree, and which he alleges are apparent upon the face of the bill, refused to send the case to the auditor to state an account between the parties, and dismissed the complainant’s bill.

To the correctness of this refusal and dismissal, we must be permitted to withhold our assent. We cannot discover in the bill of complaint, that multifariousness, which, in the opinion of the Chancellor, precludes the complainant from all claim to relief. It was a ground of defence not relied on by the defendants; if it had been, they should not have answered, but have demurred to the bill. To test the accuracy of this objection, we must view the question as if it arose on such demurrer, and in so doing, we at once divest it of the entire foundation on which, by the reasoning of the Chancellor, it is made to depend. The bill simply claims a deduction from the purchase money of the land for its deficiency in quantity, the cost of its survey, and the amount of the debts of the deceased settled by the administrator, and allowed by the Orphans Court; and which, by the alleged specific agreement of the parties, were to be so deducted. These credits all have reference to the same subject matter; the land or price at which it sold; and in the same degree affect the interests of each and all of the defendants. So far then from viewing them, as the Chancellor appears to have done, as so complex, incongruous, and incompatible with each other, as to vitiate as multifarious, a bill which should unite them, we regard them as so connected and blended together, that had each subject been made the basis of a distinct bill, or had separate bills for the same matters been filed against each of the defendants, a Court of Equity would, on motion, have or deredthem to be consolidated. To avoid the multiplication of suits and costs in Chancery, such a consolidation would be imperiously demanded.

But suppose it be conceded that the bill is multifarious, and therefore defective; the defendants have waived all exception to the defect, by filing their answer, and going into an examination of testimony, as to the merits of the whole matters in controversy. To permit them to take advantage of such an objection, at that stage of the proceedings, would be a fraud upon the complainant, and is not reconcileable to the order, liberality, and justice which pervades that system of rules by which Courts of Chancery are governed. If the bill, however, be liable to dismissal for multifariousness, it ought to be dismissed in tolo, and not made the foundation of partial relief, as the Chancellor appears to have designed it to be, in ordering a credit to be entered on Elizabeth ClagetPs judgment, for one-fourth part of the amount of the deficiency in the quantity of land, which order the decree intended to leave in full force. Mor can we perceive the soundness of the discrimination made between the complainant’s right to a credit against Elizabeth Clagett, and against the other defendants. His equity in both cases rested upon the same admission in the answer; and if it were proper, (as we think it was) to have allowed the credit on the judgment of Elizabeth Clagett, an endorsement of a similar credit should have been decreed to be entered upon the bond against the respective claims of Mary and Cassandra Gibbs.

The facts presented by the record before us, do not, we think, warrant our adoption of the Chancellor’s views of most of the claims preferred by the complainant. The first claim, as numbered by him, being for a deficiency in the quantity of land, is admitted to he a fit subject of equitable jurisdiction; but he insists that the claim against each defendant, is separate and distinct, and should be the subject of an independent bill. To this doctrine, the object and effect of which would he an useless multiplication of actions, we cannot subscribe. The deduction sought for being from the whole valuation of the real estate, and not from the proportion of any particular distributee: all who are interested therein, not only may, hut ought to he made, parties to the bill.

The second claim, says the Chancellor, is for services rendered all the defendants jointly, in the management of their concerns, and is purely legal, not having one characteristic trait of equity about it. There is nothing in the record in this cause, from which we could infer that the complainant ever urged any such claim as that thus enumerated, as a discount from his bond. The bill certainly prays for no such relief, nor ought the proof taken on the subject to be regarded, as indicating a design to urge such a claim. The taking of such testimony, appears to have been wholly defensive, and to have been the necessary consequence of the defence "set up by the answer, which charged the payment of the debts of the deceased to have been made (by agreement of all the parties concerned) out of the rents and profits of the real estate, and not out of the individual funds of the complainant. To a correct ascertainment of which rents and profits, applicable to that object, proof of the expenses, incident to the cultivation of the land, was indispensable.

For the recovery of the third claim, as it is denominated in the decree, being for the costs of a survey, the facts in the record disclose no remedy to the complainant, either at law, or in equity.

The fourth claim says the decree is-founded on a particular agreement, and is the subject of a special action on the case at law, not of a bill in equity. If this had been simply an agreement by the distributees of the personal •estate, to refund to the administrator the amount paid by him to the creditors of the deceased, the force of the Chancellor’s position could not be evaded. But that is not the case before us. Here there was a special agreement, founded on an adequate consideration, that the amount of all debts of the deceased,' paid by the complainant,' should be retained by him out of the amount of the valuation of the real estate, of which he should elect to become the purchaser. Upon the faith, and in pursuance of this agreement, the personal estate is delivered'over to the defendants. The complainant elects to take the land at its valuation, and pays the debts of the deceased. Ought a Court of Equity, under such circumstances, to stand by and permit the defendants to commit so gross a fraud upon the complainant, as to wrest from his hands the whole of that fund, which they had specifically pledged for the payment of his claims? We think not. The agreement of the parties, as staled in the bill, and sustained by the testimony, shews that the complainant never consented to rely on the personal responsibility of the defendants, and should not therefore he compelled to resort to it, but that ho looked for indemnity and reimbursement to tbe purchase money of the laud, on which he had a clear, equitable lien. Upon payment of debts of the deceased by the administrator, out of his own funds, equal to the whole amount due on the bonds, a Court of Equity should decree its cancellation. Upon payment to a less amount, it should decree that a credit for the same be endorsed upon the bond.

As regards the prayer of the complainant, that in case his claim should overrun the amount due on his bond, the defendants should be decreed to repay him the difference, we consider it reasonable, and that to grant it, is within scope of clear Chancery powers. Having once acquired jurisdiction over the subject matter, by ascertaining the amount due to the complainant, with a view to its deduction from the valuation of the land; the authority to grant full relief, follows as a necessary consequence.

We have gone thus at large in disclosing our views of the grounds on which the Chancellor bottomed his decree, in order to facilitate future proceedings in this cause, which must take place before him. And confining ourselves within those limits, which lie professedly prescribed to himself, our remarks have been predicated upon the bill alone, without reference to the answer of the defendants, or the testimony taken under the commissions issued foi that purpose, it becomes us now to make a single observation upon the merits of the case, as presented by the record.

The agreement charged in the answer is unsupported by proof, whereas that alleged in the bill of complaint is substantiated by two witnesses, who made the distribution of the personal property, and their testimony is corroborated by pregnant circumstances. We therefore think there is error, not only in the general dismissal of the hill under the circumstances in which it was made, but that the Chancellor erred in refusing to direct the auditor to state an account, elucidating the matters in controversy between the parties, and thereby presenting the items of litigation more distinctly to the view of the court. The facts in this case render it indispensably necessary, that the order to the auditor should invest him with the usual authority of taking testimony upon the subjects matter of account, which are embraced in his statements.

DECREE REVERSED.