Thames v. Mangum , 87 Miss. 575 ( 1905 )

Truly, J.,

delivered tbe opinion of tbe court.

Tbe demurrer of tbe appellees to tbe bill of complaint is not maintainable upon any of tbe grounds specifically set forth. This is manifestly a case where equity, having unquestionable jurisdiction of the cause of action, should assume full jurisdiction and settle all disputed questions in one and tbe same suit. This is necessary in order to prevent a multiplicity of suits. It is a well-established rule in this state that in many different classes of suits equity will not refuse to settle in one suit all matters at issue, even though the various defendants may have different interests or interpose varying defenses. All matters in dispute may be litigated in one proceeding, so that the ultimate decision of one suit will obviate all necéssity of instituting and prosecuting many different actions at law. In this case tbe right of tbe complainants, as against all of tbe defendants, arises from one and tbe same state of facts. It is in just such a case that tbe wisdom of tbe rule permitting equity to assume general jurisdiction is most apparent. See, as illustrative of this doctrine, Pollock v. Savings Institution, 61 Miss., 293; Bishop v. Rosenbaum, 58 Miss., 84; Crawford v. Railroad Co., S3 Miss., 708 (36 South. Rep., 82; 102 Am. St. Rep., 476); Tisdale v. Insurance Co., 84 Miss., 709 (36 South. Rep., 568); Barry v. Barry, 64 Miss., 709 (3 South. Rep., 532); Code 1892, § 547.

The final prayer of the bill of complaint is -for partition and sale of the premises. In such suits the court is expressly clothed with power to “adjust the equities between and determine all claims of the several co-tenants.” Code 1892, § 3101. Although the ground upon which the demurrer was sustained is not set out in the decree, it must, nevertheless, be affirmed, because the appellants, upon the face of the bill of complaint, appear to be barred by the ten years’ statute of limitation. More than ten years have elapsed between the execution and recording of and entry into possession under the hostile deed, by Thames to Mangum, and the institution of this suit. It is urged for appellants that this ground cannot avail the appellees, for the reason that the suit is instituted “by next friend,” and this, it is argued, necessarily implies that the real complainants are minors or rest under some other legal disability. We cannot draw inferences from a pléading to aid the pleader. The pleading must be most strongly construed, when its sufficiency is challenged by demurrer, against the pleader. Considered in the light of this rule, the right of action appears to be barred, and the bill of complaint contains no express averment of minority or other legal incapacity which would stop or prevent the running of the statute. For this reason the decree sustaining the demurrer must be affirmed.

B’ut, in order that no injustice may be . done, and that the appellants may have an opportunity of presenting in proper manner any claim which they may have — inasmuch as the statute of limitation is interposed by the demurrer only inferentially, if at all—

The cause is remanded, and leave granted appellants to amend, their bill within thirty days after filing of mandate in the court below.