Wales v. Newbould , 1860 Mich. LEXIS 77 ( 1860 )

Martin Ch. J.:

Wales files this bill to obtain from the defendant an account of the property of the late Cornelia Newbould, which came into his hands during her life, and of the avails of such as has been sold by him, and for payment of such moneys as have been received therefor, and a delivery of such of the property as remains in the defendant’s hands. In doing this, he sets forth the several relations in which he stands to the estate of the late Cornelia Nowbould, alleging that he is administrator of such estate, administrator of that of Knapp, from and through which a large portion of the property was acquired, and her heir at law and distributee, and as such entitled to any residuum left after administration. For this description of the characters in which he claims and may claim title to the subjects of this litigation, and that of his relation to Mrs. Newbould’s estate, the bill is charged to be multifarious.

I shall not attempt to define multifariousness, for the failure of every court to do so hitherto shows its impossibility. The question, to a great extent, depends upon the facts of each particular case, and the nature of the relief prayed for by the bill. But in any event, to hold a bill multifarious, the court must be able to see that disconnected and independent causes of action are brought upon the record, requiring different and independent decrees, or that the defendant is brought upon a record with a portion of which he has no connection, or in which the different complainants, if there be more than one, have no common interest. It sometimes, therefore, means misjoinder of causes of action, and sometimes misjoinder of parties. See Daniell's Ch. Pr. 384, 385; Story's Eq. Pl. §§271, 530 and note 6. In the present case there is a misjoinder of neither. The complainant is actually the only party entitled, in any capacity, to litigate the questions involved against the defendant, and the subject matter is the right of the defendant to the property claimed by the complainant to have belonged to Mrs. Newbould, but which the defendant claims in his own right. The manner in which, and the source from which she acquired such property, although necessary subjects of inquiry to determine these conflicting-'claims, do not raise any conflicting issues respecting her •title, for that is the common source of the claim of both parties. The title to her property centres in either the complainant or the defendant. If in the defendant, the bill will be dismissed; if in the complainant, the defendant must be •content to surrender the property in his hands, and account for and pay to the complainant the proceeds of such as has been sold; and in its ultimate use and appropriation by the complainant he can have no interest, unless as a creditor ■of her estate. Now, although distinct matters, in different rights, — as unconnected demands against different estates — can not be united in a bill without rendering it multifarious, yet distinct matters in the same right may be joined. And so, several parties may join in a bill where there is a common interest in the subject of controversy. Indeed a primary rule of pleading in equity, is, that all persons should be made parties who are interested in the subject matter, or whose rights may be affected by the decree ; and although this rule has been somewhat relaxed by modern decisions, so that the absence of some of those who might have been joined as parties, will not necessarily require a dismissal of the bill, yet their being parties can be no fatal objection to it in any case. If such be the rule, it is difficult to And any valid reason for holding that, where the same subject matter is claimed by a single individual, in distinct but consistent and dependent rights, or where several interests are united in him, he may not maintain a bill in his own name, setting forth such rights and interests as grounds of his claim, and descriptive of his interests, and the characters in which such claim is made. And it is far more difficult, upon any equitable or rational ground, to find any reason why he should be required to select, out of several valid titles, one upon which he will found his claim to relief, when in fact he may be entitled to it upon all, or when each independent title is but a link in the chain upon which his whole title and; his several rights depend. Equity recognizes and enforces no inflexible technical rules of pleading' which will operate to deprive a party of his rights, or compel a multiplicity of suits to attain a single object, ox' to settle conflicting claims respecting the same property.

But in the case at bar, the complainant claims, primarily, as the administrator of Mrs. Newbould’s estate. It is true that in the introduction to his bill he does not describe himself as such, but in the body he clearly avers such charactei-, and claims relief in it. I conceive this to be sufficient to authorize the court to afford him relief as such administratoi-. He also — and it is because of his various interests that he has framed the bill as we find it — avers that he is the administrator de bonis non of the Knapp estate; and that he is such, for the purpose of settling Mrs. Newbould’s estate, the settlement of the latter depending in some degree upon the settlement of the former. But he alleges this as subordinate to his character as administrator of Mrs. Newbould, and claims nothing as administratoi' of Knapp, except in aid of his administration of the estate of Mrs. Newbould, as a very large, if not the major, portion of the property of the latter estate was derived from the former, and the settlement of the one depends upon that of the other. The complainant also alleges that he is the heir at .law and distributee of Mrs. Newbould, but he makes no claim and asks no decree to himself as such. This, therefore is mere descriptio personas, and in no manner affects the issue. But, were it otherwise, the joinder of the heir or distributee as co - complainant would not, I think, be a fatal objection, even were he a distinct person from the administrator; and I can conceive of no substantial reason why the allegation by a complainant of his several actual and prospective rights and claims, all being connected and dependent, should bar a decree based upon an actual right, fully set forth, and upon which relief is really prayed. So far as the defendant is concerned, if he be found to have no right to the property, it is of no concern to him that the complainant has several connected claims, and the litigation is no more complicated when several rights and claims center in one person, than when held by many. In Rhodes v. Warburton, 6 Sim. 617, where legatees of a testator and the executor joined in a bill for a debt due the testator, the bill was held not demurable for such join•der. See also Lewis v. Edmund, Id. 251.

In Cassells v. Vernon, 5 Mason, 333, a claim to money as administrator and in the complainant’s individual right was held to be inconsistent, as the admissions of the one necessarily superceded the other, and this upon the ground that distinct and independent titles can not be set up in the same bill. But, admitting this to be good law, it by no means follows that distinct, but dependent or connected titles, may not be set up by a complainant, or that he may not set out all his claims without danger of the dismissal of his bill.

In that case the right of action was not derived from a single source, but was asserted upon independent grounds; while in the present case, all the complainant’s rights flow from one source, although his duties under them may be different. But it is his right, and not his duty, which is now in question; and as he and the defendant each claim from a common source, there can be no sound reason shown why the complainant should be driven to institute several suits to settle his respective claims to a single subject, when the rights of the parties must be substantially determined by the same evidence in each case, and upon the same general principles of law. Here the complainant has, to use the language of Judge Story in Scott v. Calvert, “a common interest” in the whole subject of the bill, and none of the •objections applicable to multifariousriess apply.

Now, as already remarked, the claim of the complainant as administrator de bonis non of Knapp’s estate is not independent of that as administrator of Mrs. Newbould’s -estate. It is rather concurrent with it; the settlement of the latter being to some extent dependent iqion that of the former; for, as is admitted by the defendant’s counsel, the title to the property acquired from that es'.ate upon the compromise of the litigation concerning it, is or may be-still subject to all rights of Knapp’s administrator, and these are centered in this complainant. Now regarding the (defend-. ant, according to the theory of the bill, as having acquired the title to such property as the trustee of his wife, and as having disposed of it as such trustee, or, according to-his own theory, as having acquired it by gift from her-through such settlement, he can not question the right of Knapp’s administrator over the property, if the necessity for its appropriation to the satisfaction of claims against, the estate is established, nor over the proceed» if it has been sold; while if he holds it only as trustee, he should account to the administrator, and can have no interest in its final disposition under the order of the Probate Court, where-these estates must be finally settled. Nor, if he has converted this property into money, can he resist the claim to-such money, if the administrat or chooses to suffer the title-to remain quiet in the bona fide purchasers, and pursue the proceeds of the sale. But in the present case, as the amount of Mrs. Newbould’s interest which the complainant claims is. dependent upon the settlement of the Knapp estate, he may call for an account of such proceeds as the defendant lias realized from the sale of property acquired from it, however acquired. Nor can he insist that such interest of Mrs. Newbould was personalty, for he received it as realty,, and must account for it as such. How it may be regarded for the purpose of administration is no concern of Ms, for he has no interest in the question. As the estate of Mrs. Newbould, and the rights of the complainant through it, are dependent, so far as the eighteen lots or the proceeds of their sale are concerned, upon the settlement of the Knapp estate, and the questions of right and amount are thus blended, the complainant’s character as administrator of the Knapp estate, is in no way conflicting with that of administrate, and distributee of Mrs. Newbould; and the averment that he has, or may have, rights in the former capacity, will not be fatal to his recovery in any other consistent and legitimate capacity. Consistent and dependent rights and titles may always be set up and relied upon by a complainant, when the bill does not require an adjustment of such rights, but a decree only which shall place the complainant in a position to settle them in another form. Were we exercising the power of a probate court, and this claim against the defendant made before us as such, the ease might be different, for our duties would be different. But the defendant can not, beyond the question of misjoinder of interests, litigate this question, as ’he derives his title to those lots from the heirs of that estate, through Mrs. Newbould’s interest therein, and his claim is based upon her right. He can not be permitted to question his own title and still insist upon it; and therefore we may start in this suit where he starts in his answer, with the deed claimed by him to be the gift of his wife, which was executed by Hunt and his wife in the process of partitioning the property, in pursuance of a decree of the St. Clair Circuit Court. This was a compromise and settlement of all conflicting claims among the heirs, and the defendant and his wife, by the obligation given to Hunt and his wife at the time of this settlement, virtually bound these lots and their proceeds to answer the demands of any future administrator who might be appointed upon such estate; for they undertook to indemnify Hunt and his wife from all liability for such conveyance to any future administrator. As between himself and his wife, were she living, the defendant could raise no question, except as to the nature of his title; and as to the claims of this complainant representing her estate, he has no greater rights. What may be the linal disposal of the property, what estates may be settled with it, and how settled, are questions in which he has no concern, if he be found to have no rights in it; and as all interests adverse to him are before the court, the satisfaction of any decree against him will fully protect him from any future liability to any one. See Story’s Eq. Pl. § 279b; Blease v. Burgh, 2 Beav. 221.

Aside from this property, which was derived through the Knapp estate, and its avails, and' the note for $926, which the defendant claims to have been given to him by his wife, there is other property which it is conceded the defendant is liable to account for to her administrator; and, as we think, to this complainant under this bill. The questions of fact to be considered are, therefore, Avhether the defendant acquired the Port Huron property, the note for $926, and the other moneys mentioned in his ansAVer, by gift from his Avife.

As to the note and money there is no evidence to sIioav such gift, nor any evidence whatever respecting his right to hold them; and the presumptions are strong against any gift. A daughter would hardly bestoAV a note executed by her father upon any one, not even her husband, as a gift unless for some strong reason. The defendant has alleged the gift, but he has not proven it, or shown any reason to render it probable. As to the real estate, the defendant claims that the title was taken in his name with his wife’s knoAvledge and consent, and Avith her intention that it should be conveyed to him as her gift. There is no evidence upon this point except the deed itself, the testimony of E. A. Wales, and of Davidson. The deed of itself j>roves nothing; as the law could presume from the facts surrounding the acquisition of the title, and the relations of husband and Avife existing at the time, that he acquired the title for her, and would regard him as her trustee, not by contract, but by force of the transaction and such relation. The testimony of Wales, so far as it shows any thing, sIioavs that the settlement and partition were made for her, and although he was her brother and attorney, he appears not to have known that she ever entertained the design of gratuitously conferring this property upon the defendant. He was not present at the execution and exchange of the deeds, but, had such a design existed, from their relations it is exceedingly improbable that she should not have imparted a knowledge of it to him. The testimony of Davidson is so indistinct as to time, so improbable and immaterial, that I am compelled to exclude it from consideration altogether. He resides at Albany, and was only transiently here, and yet, if we believe his testimony, we must belieAre that he possessed her confidence in a degree superior to that of her own brother, if not of her husband; and that she concealed from all but him her benevolent purpose of bestowing this property upon the defendant.

If she had entertained any such design, it is utterly improbable, if not impossible, that the same should have been concealed from her attorneys, or that the person who received instructions to draw the deeds, and the witnesses, or some of them, should not have known of such intention ; and the fact that none of them were called to testify in this case, tends far more strongly to prove that she entertained no such design, than the testimony of Davidson does to establish it. It is not probable that she was present in the attorney’s office while the deeds were being drawn. She naturally confided all the details to her husband, and her acquiescence in the conveyance proves no gift, for she had never had the title to give. If she gave directions for the deed to be made to her hirsband, this should have been and could have been proven; and the burthen is east upon the defendant to show it and her purpose. All the facts and circumstances show this, and only this; that the defendant was her husband, adviser and agent in this settlement, and that she left the whole matter to his direction, and if she had subsequently ascertained, or even if she at the time knew that the deed ran to him, her affection for, and confidence in him would have allayed any suspicions that he acquired the title for himself, or any doubts of the propriety of his proceeding. She might have thought that the title should properly run to him, as her husband, but it would be a monstrous and unnatural inference from these facts alone, to find that she was bestowing this property upon him as a gift. She is not shown to have been present when the deed was drawn, nor to have given any instructions respecting it; no act was done by her which manifested an' intention to give, or which could operate to give. She has granted nothing, and nothing appears which will justify the presumption required by the defendant, and none can be made against her interests; but the proof should be clear and conclusive.

But the claim that the note for $920, executed by her own father to her, was also given to the defendant, which is part and parcel of this general claim, is so unreasonable that it also throws doubt over this of the gift of the real estate. However much she might have confided in her husband, or however great might be her generosity, it is hardly probable, and indeed scarcely possible, that she should have bestowed upon him this demand against her father. Before we can find a gift to have been made by the wife to the husband, we must have evidence of a different character from that before us.

The question of her right to give her real estate to her husband does not arise in this case, as the fact of a gift is not proven. •

It is not necessary for the complainant to prove fraud on the part of the defendant to sustain this bill. He does not charge direct fraud, but that the title of Newbould was acquired without the knowledge and consent of his wife, and in fraud of her rights. This relates to the title, and not to his acts, and the facts of the case without other proof are sufficient to sustain the charge. The averment is of a";legal conclusion, and the rule contended for by the defendant’s counsel does not apply in this case. The defendant having alleged a gift, the burthen was cast upon him to show it; the possession of the title, under circumstances like these before us, not warranting any inference of it, or presumption against the wife’s interest.

The bill prays that the note of $926 may be decreed to be given up to the complainant, as also the personal property, and that the suit pending in the Wayne Circuit Court be enjoined. So far as the personal property is concerned, as the defendant asserts no title to or interest in it, he should be decreed to surrender it: as to the note for $926, a decree must be entered, that the injunction against its prosecution be made perpetual, and that it be surrendered to the complainant; but as to the note for $1056, we can make no decree. The defendant is at liberty to prosecute that to judgment, and in other respects a decree should be entered according to the prayer of the bill, except so far as relates to the disposal of the property in course of administration, which is left to the order and direction of the proper Probate Courts. As we do not find the title to the real estate to have been acquired by actual fraud, and hold the defendant to have been the trustee of the title, in taking the account of the proceeds of such real estate and other trust moneys in his hands, the defendant must be allowed for all taxes paid by him upon the trust property, and for all necessary expenses incurred and necessary disbursements made by him, in the due and proper management of the trust property, and for all moneys paid out, and expenses necessarily incurred by him in the St. Clair chancery suit, and the compromise thereof. He must also be allowed (should he claim it) a reasonable compensation for his, time and services as the agent of his wife, about the said chancery suit, and the compromise thereof, down to the time when the deed of the Port Huron property to him was executed, but not after; such accounts to be taken, before a Commissioner, on reference, and ¡massed upon as in other cases, and the case must be remitted to the court below for the execution of this decree, and for farther proceedings.