Dennis v. Justus , 115 Va. 512 ( 1913 )

Keith, P.,

delivered the opinion of the court.

For the purposes of this case the averments of the bill may be stated as follows: That Daniel Blankenship was the owner of a tract of sixty acres of land, in the county of Buchanan, which he conveyed by deed to one of the predecessors in title of J. L. Justus; that by intermediate conveyances from divers grantors the title to this land was vested in J. L. Justus, the father of complainant, who by his deed conveyed it to Melvin Justus and his brother, Ephraim Justus; and that by proceedings in a chancery suit this land was sold and conveyed to John C. McCoy by J. H. Stinson, a special commissioner, and by McCoy’s deed title untimately vested in the complainant, Melvin Justus, whose deed went to record prior to the first of January, 1901; that the land was improperly assessed for taxation against J. L. Justus, father of complainant, for the year 1901; and that by proceedings which need not be specifically stated, it was sold for taxes alleged to be due by J. L. Justus; the Bitter Lumber Company became the purchaser, and a deed was made to it by Joseph Hibbits, the clerk.

Without going into details, we will content ourselves with the statement that the averments of the bill make out a case for relief against the Bitter Lumber Company, and that if those averments were established by proof the deed from the clerk should be set aside as improperly constituting a cloud upon complainant’s land.

The bill go'es on then to state that W. L. Dennis, on the 18th of September, 1908, filed an ex parte petition before B. E. Williams, commissioner, acting under sections 3340 and 3341 of the Code, to set up title in himself to the sixty acres of land derived by complainant, as aforesaid, from Daniel Blankenship; that W. L. Dennis claims title under a deed of trust from Daniel Blankenship to J. H. Stinson, trustee, dated February 27, 1894, and recorded the following day, a deed from J. H. Stinson, trustee, to J. F. Barnes, and by deed from J. F. Barnes and her husband W. L. Dennis, dated June 23, 1903. The bill alleges that none of these deeds included or intended to include the sixty acre tract of land owned by him, and if the averments of the bill be true a case for relief is made by the plaintiff against W. L. Dennis.

The prayer of the bill is that the Ritter Lumber Company, W. L. Dennis, J. L. Justus and Ephraim Justus be made parties defendant; that a decree may be entered vacating and declaring void the deed from Joseph Hibbits, clerk, to the Ritter Lumber Company, for the reasons hereinbefore set out; and that an order may be entered restraining the said W. L. Dennis from proceeding any further with his petition before Commissioner Williams.

We have, then, a bill which sets out the plaintiff’s title to a sixty acre tract of land, which he seeks to protect from the claims of the Ritter Lumber Company under a tax deed, and from W. L. Dennis, who is proceeding to establish title in himself to this tract of land by proceedings before a commissioner by virtue of the statute hereinbefore referred to.

The bill was demurred to as being multifarious; the demurrer was overruled; the defendants answered; depositions were taken and proofs filed; and the court by the decree which is appealed from granted the relief sought, vacated the deed from Joseph Hibbits, clerk, and restrained Dennis from proceeding any further with his petition before Commissioner Williams.

The first error assigned is that the demurrer to the bill was overruled, and the appellee contends that the charge of multifariousness was not set forth with sufficient clearness as a ground of demurrer by the Ritter Lumber Company, and was not relied upon by W. L. Dennis, in the circuit court, Dennis and the Ritter Lumber Company being the only appellants.

This contention need not be passed upon, as the charge of multifariousness made by the Ritter Lumber Company is sufficient in form, and if well founded, is fatal, whether united in by its co-appellant or not, for as we shall see, the authorities hold that it is the duty of the court, of its own motion, to dismiss a multifarious bill, although not objected to on that ground by the parties defendant.

We have gone very far in sustaining bills where this charge has been made, but in the present case we are constrained to the conclusion that we must either hold the bill to be multifarious, or declare that this ground of demurrer can no longer be availed of in this jurisdiction.

In Seefried v. Clarke, 113 Va. 365, 74 S. E. 204, the most recent expression of opinion by this court upon this subject, it was held, that in a bill for partition “the courts may set aside a deed to one of the parties of a part of the .land to be divided, either because the grantor had no power to make the deed, or because of his mental incapacity; and that the fact that both grounds for setting aside the deed are alleged in the bill for partition does not render the bill multifarious. Such a bill attains the desired end in a way convenient to all concerned, and does no serious injury to any one of them.” A number of cases decided by this court are there considered, and the question of convenience was carried as far as we deem it proper to extend it.

In Dunn v. Dunn, 26 Gratt. (67 Va.) 295, section 271 of Story’s Eq. Pleading is quoted and approved as follows: “A bill should not be what is technically termed multifarious; for if it is so, it is demurrable, and may be dismissed by the court of its own accord, even if not objected to by the defendant. By multifariousness in a bill, is meant, the improperly joining in one bill distinct and independent matters, and thereby confounding them; as, for example, the uniting in one bill of several matters perfectly distinct and unconnected againt one defendant, or the demand of several matters of a distinct and independent nature against several defendants, in the same bill. In the latter case, the proceeding would be oppressive, because it would tend to load each defendant with an unnecessary burden of costs, by swelling the pleadings with the star ment of the several claims of the other defendants, with which he has no connection.”

• This statement of the law is peculiarly apposite in the case under consideration, for the very evil which the quotation points out is well illustrated by the magnitude of the -record before us. The claims of the Ritter Lumber Company and of W. L. Dennis are wholly separate and distinct. They have no sort of connection the one with the other. The case against each is sufficiently stated in the bill to entitle the plaintiff to relief if established by proof.

In Washington City Savings Bank v. Thornton, 83 Va. 157, 2 S. E. 193, it is said to be impossible to lay down any rule applicable to all cases, as to what constitutes multifariousness. “It is well settled, however, that a bill is demurrable in which are united several distinct rights, each sufficient, as stated, to sustain a bill against one defendant, or in which there is a demand of several matters, distinct in their nature, against several defendants, who are unconnected in interest and liability.”

The decisions of this court bearing upon the subject are fully collated in Seefried v. Clarke, supra, and no further citation of authority is deemed necessary.

The decree of. the circuit court must, for the reasons stated, be reversed; and this court will render such decree as the circuit court should have entered.

Reversed.