Robinson v. Robinson , 1882 Me. LEXIS 15 ( 1882 )

Danforth, J.

There are two distinct and separate causes of relief set out in this bill; one against each of the defendants and in which the other defendant has no interest whatever. The first sets out a conveyance from the defendant Robinson to the complainant, a loss of the deed before it was recorded and a promise on the part of Robinson to give a duplicate. On this part of the bill the decree is asked for against Robinson alone as it necessarily must be. The relief sought must be founded alone upon the alleged promise of Robinson, a contract in which the other defendant can have no interest whatever. Nor do the allegations show any liability resting upon her in regard to it, but negative any such liability. Such a duplicate deed if given would not affect her title or interest in the premises in the least degree. She is not therefore interested in the contract set out, or in the subject matter to which it refers.

The other' cause of relief is a charge against the defendant Verrill in substance that she holds the premises under a deed fraudulent as to this complainant, or in effect a mortgage. The relief asked is that if the deed be fraudulent it be decreed void and Mrs. Verrill be required to release, or if given as security for advances it may be decreed a mortgage, the amount due determined by the court, and upon payment Mrs. Verrill be ordered to execute a release to the complainant.

Here the charge is against Mrs. Verrill and the relief is sought from her alone. It is true that if the deed is fraudulent the defendant Robinson may be a participator in the fraud. But if so, he can now do nothing, nor is he asked to do anything to repair the mischief. The title is what the complainant wants and 'that has passed from him and so far as this allegation shows is in Mrs. Verrill alone. If the deed is decreed a mortgage the result is the same. Robinson has no interest so far as this case shows in the amount which may be found due, nor is a release, or any action on his part required in relation to it. In any event under the allegations in the bill the whole title and interest have passed from him and therefore he should not be made a party. Bailey v. Myrick, 36 Maine, 50; Hilton v. Lothrop, 46 Maine, 297. Thus the bill is multifarious within the principles laid down by all the authorities as shown by the cases cited in the argument upon both sides.

There are other reasons why this bill cannot be maintained. So far as it claims anything of the defendant Eobinson it is upon the ground of his promise. But no consideration for any such promise is alleged, and the facts as they are set out seem to negative such consideration. From the bill we learn that he had conveyed to the complainant. Another and duplicate deed would add no strength to the title, nor was he under any legal obligation by reason of the loss to furnish another. If he were to do so it would not restore the lost deed or give to it any vitality which it does not now possess. If the object is to get it recorded, even that would not relate back, and besides, E. S. c. 73, § 25, affords abundant provision for that purpose. If he took the former deed as intimated, he would be under obligation to restore that, but he is not asked to do so, and in any event the contest as to the title is and must be between the complainant and the other defendant.

As to the other defendant there is no allegation that the complainant is in possession of the premises. If, therefore, the allegation of fraud is relied upon, the law affords a complete and adequate remedy. It is not the purpose of equity to try titles to real estate and put one party out of possession and another in. This must be done under the forms and principles of law which are sufficient for thatpurpose. Lewis v. Cocks, 23 Wallace, 466 ; Boardman v. Jackson, 119 Mass. 161; White v. Thayer, 121 Mass. 226.

The claim for a redemption as from a mortgage is undoubtedly a matter within the jurisdiction of equity. But in this case the allegations are not sufficient to maintain the bill on that ground even as against the defendant Yerrill. There are in fact no allegations that her deed was taken as security. The bill says the complainant has been informed and believes that the deed was taken as security or is fraudulent. But which? Here is statement of a charge founded only on information and belief, inconsistent with the rules of pleading, and stated in the alternative, leaving the defendant in entire uncertainty whether one, or both, and if one which is relied upon. The complainant may undoubtedly aver facts of a different nature, which will equally support his application where the title to relief will be the same in either case; or he may pray for an alternative relief depending upon the conclusion to which the court may come upon a given state of facts. But here an alternative decree' is asked upon an alternative and inconsistent state of facts, not directly stated but alleged upon belief only. This, it is believed, is without authority. It is not allowable even upon a direct assertion, when that assertion is, as here, in the disjunctive form, éven though one of the alternatives may be a ground of relief. Story Eq. PL § 42, b, and note.

Demurrer sustained.

Appleton, C. J., Walton, Barrows, Virgin and Stmonds, JJ., concurred.