Carroll v. Carroll , 2 Edm. Sel. Cas. 158 ( 1850 )

Fdmonds, J.:

Where the defense clearly appears from the face of the bill, the statute of limitations may be sfet up on demurrer, but where any thing is averred in the bill which would take the case out of the statute, the defense can be available only by plea or answer; and for this simple reason, that as a demurrer to the whole bill admits all the facts stated in it, it necessarily admits, as well, those which take the case out of the statute as those which bring it within it.

Such is this case, for if on the one hand the bill admits that letters testamentary were issued to the defendant, in 1824, whereby a cause of action accrued in 1825, it also admits that in 1838 the defendant executed two deeds, out of which grew also a cause of action, and that defendant, as executor, was at the time of filing this bill in possession of all the devised property, and acting still as executor, out of which also a cause of action accrued. The cause of action growing out of the deeds of the land could, in no sense, be said to have arisen until those deeds had been executed, and that was within ten years of the commencement of the suit. Another cause of action, as to the rents and profits, growing out of the defendant’s possession, down to the commencement of the suit, is a continuing one, and if the bar of the statute is good as to a portion of those rents and profits, it is manifest that as to part of them it is not good. So that even if the bar of the statute be good as to the personal property, by reason of the cause of actions having arisen in 1825, the manner in which the defendant has set up his defense will not allow him the benefit of it, without also overruling two causes of action, which, as it now appears, are not barred by the statute.

I do not mean to say that the statute is a good bar as to the personalty. It is not necessary for me to decide that, for even if it be good it cannot be allowed on this demurrer, because it would carry along with it, into the power of the statute, two causes of action which are exempt from it.

The demurrer, so far as it rests on the statute of limitations, must be overruled.

The next objection taken on the argument relates to the vagueness and uncertainty of the bill.

The uncertainty which is available on demurrer, is that which does not not distinctly inform the defendant of the nature of the case which he is called upon to meet, and will ■ not enable the court to ascertain what relief the party is entitled to. No such objection can be taken to this bill. It is sufficiently definite for the information of the defendant, and the court, and if there are any averments so vague that the defendant may not know how to answer, they are of such a character that defendant can have the full benefit of his objection, in his answer and exceptions to it, if any be taken, and are not of such a nature as to affect the general frame of the bill or impair its cause of action.

In this respect, also, the demurrer must be overruled.

The remaining objection taken on the argument relates to multifariousness.

The general object of the bill is to have an account from the defendant of his executorship of his father’s estate, and to correct any wrong that he may have committed as such.

So far as he is concerned it is sufficiently single, and he cannot object that, as to him, it is multifarious; and if it had not been for the deeds and mortgages he executed, there would be no pretense for this objection. Having given them, as he claims, under the power given him by the will, and in execution of it, if the plaintiff meant to affirm them, the objection would not apply, for still the single purpose of the bill would be to call the defendant to an account.

The plaintiff had a right to frame his bill, in respect to those lands, in a double aspect—either to vacate the deeds and mortgages, .or to have his share of the avails of them. In aiming to vacate the deeds, it was of course necessary for him to implead as parties those who claimed under them, and the multifariousness, if any, arises from the fact of his having framed his bill in this double aspect as to those lands.

It was claimed, on the argument, that the bill had not such double aspect; that it did not ask an account of the avails of those deeds and mortgages, but merely sought to set them aside, and therefore it was urged that it was multifarious, and after all, the objection was reduced to that single point, and depends on that fact.

In this respect the counsel was mistaken; the bill does ask an account of the moneys which the defendant received under those deeds and mortgages. It asks that as specifically and as clearly as it asks any thing, and the whole objection necessarily falls to the ground.

The plaintiff is entitled to the account he asks for; that account is of the whole executorship, and necessarily involves all the transactions connected with it, and as necessarily brings in as parties those who claim an interest under any act done by the defendant as such. There is no view of multifariousness which I can take, which would enable me to bfing such a case within its scope.

The judgment must therefore be for the plaintiff, overruling the whole demurrer.

[This judgment was affirmed on appeal. See 11 Barb. 293.]