Bassett v. Warner , 23 Wis. 673 ( 1869 )

Cole, J".

Although tbe complaint in this case is demurred to on several grounds, yet tbe only question which seems to us to require any serious examination is, whether tbe complaint is bad on account of multifariousness.

It is true, one ground of demurrer assigned is, that tbe circuit court has no jurisdiction of tbe subject matter of the action, for tbe reason that tbe county court of Winnebago county has acquired, aud still retains, exclusive jurisdiction thereof. But this objection, and the one that the complaint does not state a cause of action, seem to us so obviously untenable that no particular attention need be given them. One cannot give the complaint the slightest examination without coming to the conclusion, that if the facts are as there alleged, a case is presented for the equitable cognizance of the circuit court. But whether the complaint is liable to the objection of improperly uniting several causes of action, is a question which will be briefly considered.

Is then the complaint open to the objection of multifariousness ?r "What constitutes multifariousness in a bill or complaint in equity, is a matter not always to be readily determined. The decisions, indeed, are not always in harmony upon the point. “ By multifariousness in a bill is meant,” says Mr. Justice Story, “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, against 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 statement of the several claims of the other defendants, with which he has no connection.” Section 271, Eq. Plead. In section 271 a (Bedfield’s ed.) he proceeds to add that “ the objection must still be confined to cases, where the case of each particular defendant is entirely distinct and separate in its subject matter from that of the other defendants; for the case against one defendant may be so entire as to be incapable of being prosecuted in several suits, and yet some other defendant may be a necessary party to some portion only of the case stated. In the latter case, the objection of multifariousness could not be allowed to prevail.” In McLachlan v. Staples, 13 Wis. 448, this -court cites with, approval the language employed by this distinguished jurist in a subsequent section of this same work (§ 539), where he gives tlie result oí the authorities as to what constitutes multifariousness. He there says, “ that there is not any positive, inflexible rule "as to what, in the sense of courts of equity, constitutes multifariousness, which is fatal to the suit on demurrer. These courts have always exercised a sound discretion in determining whether the subject matters of the suit are properly joined or not. * * And it is not very easy, a priori, to say exactly what is, or what ought to be, the true line regulating the course of pleading on this point. All that can be done in each particular case, as it arises, is to consider whether it comes nearer the class of decisions where the objection is held to be fatal, or to the other class, where it is held not to be fatai. And in new cases, it is to be presumed that the court will be governed by those analogies which seem best founded in general convenience, and will best promote the due administration of justice, without multiplying unnecessary litigation on the one hand, or drawing suitors into needless and oppressive expenses on the other.” In the cases referred to in the notes to the sections we have just quoted, will be found many instructive illustrations of this rule of pleading, and where the objection of multifariousness has been held to apply, and where not to apply.

Now, with the light which this reference to the authorities affords, let us direct our attention to the matters stated in the complaint. And the question arises, Can it fairly be said that the Warner heirs have no connection with the matters in the complaint stating a cause of action against the defendant Drury ? It appears to us not.

The complaint is too lengthy to allow of even a synopsis of its allegations. The principal object of the suit, however, seems to be, to obtain an accounting from the defendant Drury, and a disclosure of his dealings witb the estate of Harvey Jones. He assumed to act as administrator of that estate for several years; bas bad much to do witb its management and control; bas been engaged in many important business transactions relating thereto; bas run mills; manufactured lumber; leased and sold real property; and an accounting is asked' from bim of all moneys received by bim as administrator, either alone or jointly witb bis co-administrator, Loyal H. Jones; and of rents and profits of the mills and real estate therein mentioned; of sales made by them of real estate belonging to the estate of Harvey Jones; a statement of all assets of the estate which have been wasted, concealed, misapplied or converted by bim, or by his co-administrator, witb bis knowledge, assistance and connivance ; also that Drury be adjudged to pay the amount due upon such accounting to the extent of the plaintiffs’ interest and share in the estate of Harvey Jones; that certain conveyances of real estate which belonged to that estate, made by the administrator to Joseph Warner, be declared void, and Warner’s heirs at law be decreed to reconvey the property to the heirs at law of Harvey Jones, because, as is alleged, these deeds were fraudulently procured by Warner from the administrators, with full knowledge that they were invalid, and for the purpose of aiding and abetting the administrators in misappropriating the trust funds and in speculating out of the property of the estate of Harvey Jones. Now, although there are many things stated in the complaint, with which the Warner heirs have no connection, and which relate to Dru/ry and his co-administrator alone, it appears to us, that, so far as the real estate is concerned, which it is alleged Warner acquired through his fraudulent dealings with the administrators, or in aiding them in their alleged illegal acts and management of that estate, and of which a reconveyance is sought from them as a part of the relief in this suit, those heirs are very proper and necessary parties. One of the objects of the suit is to reach this real estate; and certainly, before the Warner heirs are called upon to surrender their title to it, they should have an opportunity of contesting the question whether their ancestor received it under such circumstances as render the conveyances void as to the heirs of Harvey Jones. As a matter of course, they have a direct interest in that part of the case. And the alleged fraudulent acts of the administrator’s in respect to this property are so mixed up with their general administration, that they cannot well be separated. For all the transactions between the administrators and Joseph W arner are more or less connected with the business of the estate of Harvey Jones, and the property of that estate, and can therefor be more properly investigated in this action, than in a separate suit. So that we are of the opinion, that while the defendant Drwry is called upon in this suit to account for the money received by him as administrator, and for rents and profits of real estate, and property sold, and generally to account for his administration of the estate of Harvey Jones, there can be no valid objection to requiring the heirs of Warner, in the same action, to surrender any property which they may hold belonging to that same estate. At all events, Ave do not think the objection of multifariousness will apply because that matter is included with the other matters stated in the complaint. The complaint seems to be fully sanctioned in this regard by the reasoning and decisions in the cases of Gaines v. Chew, 2 How. (U. S.) 619, and The Attorney-General v. Cradock, 3 Myl. & Craig, 85, as well as the authorities cited by Mr. Justice Stoet, above referred to.

It was, however, further objected, that the complaint was multifarious, because, in addition to the relief asked as above stated, it is likewise sought in this action to subject certain real estate belonging to the defendant Drury — which, it is alleged, has been conveyed by him to Joseph "Warner as collateral 'security for tbe fulfillment of a certain contract therein named, and also to place tbe property beyond tbe reach of Drury’s creditors — to subject this property to tbe payment of any claim which tbe plaintiffs may have against Drwry on tbe final accounting. It is insisted that this is a cause of action entirely distinct from the matters relating to tbe administration of tbe estate oí Harvey Jones, or tbe lands conveyed by tbe administrators to Warner, and that including it in tbe complaint renders tbe complaint multifarious. Put we think-this objection untenable. To render a complaint multifarious, distinct and independent causes of action must be improperly united. Tbe complaint in this case states no ground for setting aside these conveyances made by Drury to Warner; in other words, sufficient facts are not stated to entitle tbe plaintiffs to any relief in respect to that matter.' Por not until an accounting is bad, will it be known whether tbe plaintiffs have any claim against Drury or not. Manifestly they have no right, upon tbe facts stated in the complaint, to have those conveyances set aside, even assuming that they are fraudulent as to Drury’s creditors. They must first obtain their judgment, and issue their execution, before they can call upon a court of equity to set aside those conveyances. Therefore, it is obvious that not until tbe accounting is bad, and it is found that Drury is indebted to tbe plaintiffs, have they any right to question tbe good faith or honesty of any disposition be may have made of his property, or ask that any of hN conveyances be set aside. In this respect, including those matters in the complaint does not render it multifarious. Upon this point Chancellor Walwoeth, in Maury v. Beekman Iron Co., 9 Paige, 188-194, states the rule. “To render a bill multifarious, it must contain two or more good grounds of suit, which cannot properly be joined in the same bill, against the same defendant or different defendants. Eor if a good cause of complaint is joined in the bill with other allegations which could not entitle the complainant to file a bill against the defendants or either of them, such allegations are simply impertinent, or afford grounds for demurrer to that part of the bill for want of equity.” To the same effect is his decision in Varick v. Smith, 5 Paige, 137-160. This seems to dispose of the objection that the complaint is multifarious on account of what is therein stated about the conveyances made by Drury of his own property.

Again, it is said the.plaintiffs are seeking to affirm and avoid at the same moment the conveyances made by the administrators to Warner. We do not so understand it. They ask for judgment against Drury as to that portion of the lands which have been sold by Warner, and which cannot be recovered, and as to that portion of them remaining unsold, they ask a reconveyance. We see no inconsistency in this position. Gardner v. Ogden, 22 N. Y. 327.

Nor do we think there is any validity in the position that the plaintiffs cannot recover as heirs of Harvey Jones, because the estate has not been assigned, or because the administrator de bonis non of Harvey Jones is not joined. It does not appear that an administrator de bonis non has been appointed, and the complaint shows no necessity for appointing one.

It appears to us that this disposes of the material questions raised by the demurrer.

By the Court. — The order of the circuit court, sustaining the demurrer, is reversed, and the cause remanded for further proceedings.