Pierce v. Jones

By the Court. —

Benning, J.

delivering the opinion.

Was there any equity in the bill ?

The bill says that Chisolm claimed the land under Morrison; that Morrison had no title to it; that, nevertheless, in order to enable them, or one of them, to recover the land from Jones, the complainant, they had procured one Pierce,.. to administer on the estate of one Murray, whom they took to be the Murray who was the drawer of the land, and'to-' bring an action, as such administrator, against Jones, to recover the land for their benefit.

The bill also states, that which makes it doubtful, whether ■this Murray, or some other Murray, was the person who drew the land.

Let us suppose, that this Murray was that person. In that case, Pierce, as his administrator, held the title to the land and, therefore, Jones’s possession, although it was a good defence to him against the title of Morrison, or that of Chisolm,, or the title of both, yet it was not a good defence to him, against the title of Pierce, as the administrator of Murray.

This being so, Pierce, as the administrator of Murray, brought the suit for the land, merely that Morrison or Chisolm, or both, might have the benefit of his title, and might thus, though without any title of their own, be enabled to overcome Jones’s defence by possession, and recover the land from him. The suit was for their exclusive benefit.

And the question is, ought Pierce to be permitted to continue this suit ?

If the suit by Pierce, as the administrator of Murray, had been brought for the benefit of the heirs of Murray, and Jones had had a good defence against those heirs, as, by the statute of limitations, the suit would have been one subject to be enjoined at the instance of Jones. Jonekim vs. Holland, 7 Ga. 589, Daniel vs. Sapp, 20 Ga. 514.

[1.] Morrison and Chisolm can stand, in no better situation, with respect to Murray’s administrator, than that in which, in the case supposed, the heirs of Murray would have stood in respect to him; and Jones has a defence good against them, viz: possession. It follows, therefore, that he must be entitled to have the suit brought by Pierce, for their benefit enjoined.

This is the result, on the hypothesis that the Murray represented by Pierce, was the Murray who drew the land.

If he was not the Murray, the only difference in the case would be, that Jones would have a defence at law, good, not only against Morrison and Chisolm, but also against Pierce.

In the state of doubt that exists on this point, it can hardly be said that Jones has an adequate remedy at law.

Our conclusion, therefore, is, that there was equity in the bill.

It is true, that the facts giving this equity, are stated in connection with other facts in which, we think, there is no equity, viz: the facts of the suits by Jones against Morrison and Chisolm, founded on the 32d of Henry VIII.

In our opinion, the part of that statute on which those suits were founded, is not in force in this State. In my own opinion, no part of that statute is. See my views on the question, whether the statute is, or is not in force, in Doe ex dem. Morris vs. Roe and Monroe, ten., decided at Macon, June, 1857.

But we think, that these facts, and all others connected with them, if connected with them only, may, and should be struck from the bill. These facts, therefore, need not prejudice the other facts contained in the bill.

We think, then, that the Court below was right in overruling the motion to dismiss the bill for want of equity.

And although the Court would not hear the demurrer of Pierce, still we have given him the benefit of that demurrer,, in the conclusion to which we come, that the parts of the bill founded on the 32d Henry VIII, should be struck out. The Other grounds of the demurrer, were covered by the- motion to dismiss the bill for want of equity; and that motion we have considered.

Was the equity in the bill, sworn off by the answer of Pierce ? Far from it.

It is true, that the answer says, that Morrison represented to Pierce, that he had bought the title of the heirs of Murray; but it does not say that Pierce believed the representation. Besides, it is doubtful, whether this was not new matter. The whole answer taken together, is anything but a satisfactory denial of the case made by the bill.

Our conclusion, therefore, is, that the motion to dissolve the injunction, founded on the allegation, that the answer had sworn off the equity of the bill, ought not to have been sustained, if the motion had been heard. So, it would, at least, be useless, to order the Court below to hear that motion. We do not say, that refusing to hear such a motion, is not to be considered by this Court, the same as overruling the motion. As to this, we say nothing.

There ought to be an affirmance, except as to the matters ordered to be struck from the bill.

Judgment affirmed, with directions.