[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 216
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 217 It is the established doctrine of a Court of Equity, that it will not assume jurisdiction to set aside a will for fraud, or on the ground of the testator's incompetency, where there is a perfect remedy at law, and where the objection to the jurisdiction is taken in proper season. (2 Paige 399; 3 Br.P.C. 358; 7 Price 663; Jacob R. 466; 1 Mad. Ch. 85.)
As the jurisdiction of the Court of Chancery, according to the rule above mentioned, depends upon the inadequacy of the legal remedy, the bill must state the impediment to relief in a Court of law. (Pemberton vs. Pemberton, 13 Ves.; Jones vs.Jones, 3 Meriv. 166 and note.) If the impediment relates only to a part of the real estate embraced in the will, it would seem to be sufficient to confer jurisdiction. As to the part thus incumbered, the complainant would have an undoubted right to the aid of a Court of Equity, (Story's Eq. Jurisdic. § 33,) and the jurisdiction thus acquired would upon general principles be retained, in order to prevent a multiplicity of suits, and to afford complete relief to the parties. (2 John. Cas. 424; 10J.R. 587; 17 do. 384; 1 Wheaton 197.)
In the second place, the form of the negative plea to the jurisdiction of the Court, and of the order for an injunction *Page 218 in those cases where an issue of devisavit vel non is proper to be awarded, leads to the same conclusion.
The allegation of the plea is general, that the obstruction to the legal remedy charged in the bill, applies to "none of the real estates which are subjects of controversy. (Armitage vs.Wadsworth, 1 Mad. 111.) And the usual order for injunction, restrains the defendant from setting up any lease, outstanding term, c., to defeat the plaintiff's claim, in any issue or action directed by the Court for the recovery of any of the real estate, or the rents and profits thereof. (3 Merivale 172.)
The complainant alleges that at the time of filing the original bill by Thomas McCosker, the whole premises were subject to the unexpired trust term created by the will of John McCosker, the elder, and part of them to an unexpired lease executed by John McCosker, the younger, on the 28th of February, 1842, to Carston Maas, for three years from the first day of May following, which lease had been duly assigned to Julius Piper, one of the defendants. The trust established by the will of John McCosker, the elder, for the payment of an annuity of $200 to Thomas McCosker during his natural life, was a valid trust under the third subdivision of the 55th section R.S., 1 vol., page 729. The language of which is that "express trusts may be created to receive the rents and profits of lands, and apply them to the use of any person, during the life of such person, or for any shorter term." By the 60th section, the whole estate in law and equity is vested in the trustees. If the trust was invalid, then the lease passed the interest of John McCosker, the younger, to Casston Maas, who was in actual possession at the filing of the bill, paying rent according to said demise to Robert Martin, as agent for the parties who might be entitled to the same. These facts are distinctly alledged in the bill, and admitted by the demurrer, and prima facie they present an insuperable obstacle to a recovery at law. If the trust was within the statute, ejectment would not lie for any part of the premises; if it was not, then it could not be maintained against the assignee *Page 219 of Mass. by the complainant, who claims as to all the interest in controversy, through John McCosker, the lessor. No suit could be sustained against Martin because he received the rents as a receiver, constituted with the assent of both parties, for whoever might ultimately be entitled to it. He was a mere stake-holder, and if sued, could compel the parties to interplead and settle the right by the decree of a competent tribunal.
Assuming that the impediments to the legal remedy were such as to entitle Thomas McCosker to relief in equity, when he filed the original bill, it cannot be seriously questioned that the complainant succeeded to his rights in this respect, and is entitled to continue the suit, if it was properly commenced. (Barbour, Ch. P. 82.)
The complainant claims as devisee through his father. Not succeeding to the rights of the decedent by mere operation of law, he could not file a bill of revivor, but could only have the benefit of the original proceedings, and avail himself of the new facts necessary to be stated by an original bill, in the nature of a bill of revivor and supplement. (Welford, Ch. Pr. 220, 222; Barbour Ch. Pr. 64 and 82.)
This has been done, but it is alleged that the complainant being a defendant in the original suit, could not revive it until after a decree giving him an interest in its continuance. (1Barbour 41.)
This would be true if the complainant sought to revive as a defendant, or as the representative of a defendant. But he has succeeded to the right of his father the plaintiff in the original suit, and claims the benefit of that suit by virtue of such succession. This distinction is sufficiently obvious, and is recognised in Soullard vs. Dias, 9 Paige 394, to which we have been referred by the counsel of the defendant.
The main question is whether the present and former complainants, have not precluded themselves by their own allegations from any relief whatever in Chancery. Thomas McCosker by the original bill, "claimed to be and charged that he was (Fol. 72) entitled by inheritance as aforesaid, to *Page 220 all the lands, tenements, and hereditaments, and every part and parcel thereof, in fee simple, and that he then held and was in lawful possession thereof." I thought upon the argument that this statement was an insuperable obstacle to any relief in Chancery, unless indeed the aid of that Court could be invoked in order to remove a cloud from the title of the complainant. But upon a more particular examination of the bill, I am satisfied that my first impressions were erroneous. The bill alleges that the premises in question consisted of two lots of land, with several dwelling houses thereon, in which before, and at the time of the death of John McCosker the younger, and at all times since, there were, and at the time of filing the said original bill still were, numerous occupants in humble condition, c., from whom little or nothing could be obtained, unless some one with the right and powers of a landlord, and standing in that relation should collect the rents, c.; that Julius Piper was in possession of the property devised to Maas at the filing of the bill, paying rent to Martin, c. It is further stated, that in consideration of the importance of securing some immediate control over said property, in order to prevent waste, and secure the collection of rents, some friends of the complainant without his knowledge or consent, united with J.T. Brady, acting in behalf of those claiming under the will of John McCosker the younger, in a request to Martin to assume the control of the property and receive the rents as agent for whoever might be entitled to them, that Martin did so, that the uncertain nature of his power, produced great embarrassment. It is further alleged that the complainant Thomas McCosker was destitute of any means, or property, except what he might be entitled to from the estates of his father and brother. That no part of his annuity hadbeen paid to him since his brother's death, although he had received an equal sum from Martin. The bill then denies that the defendants are in the receipt of the rents and profits of said premises or any part thereof (Fol. 71) or are in the occupation thereof; but that the same are in the occupation ofpersons residing thereon. Now these allegations *Page 221 are utterly inconsistent with the statement that the complainant "then held and was in the lawful possession of said premises," if by that we are to understand any thing more than a legal seizure. The bill informs us that the whole legal and equitable estate was vested in trustees, or in the Court of Chancery, that the assignee of Maas was in possession of the house demised to him, and who were the actual occupants of other parts of the real estate; the person that was actually in the receipt of the rents and profits, and the nature of his authority, which was to receive them as agent for whoever might be entitled to them. The effect of the averment under consideration, read in connection with what has been quoted from other parts of the bill, is only that the complainant Thomas McCosker was then entitled by inheritance as aforesaid, to all the lands, tenements, and hereditaments, in fee simple, and that he therefore held and was in lawful possession thereof. In other words it is a formal legal conclusion from the facts previously stated.
It is also objected that the bill is multifarious. Multifariousness, as the term is generally understood, applies to bills in which there is a misjoinder of distinct and independent causes of action. Or secondly, where the party has no interest in the subject in litigation; and lastly, where one or a part of the defendants, is able to say that he is brought as a party upon a record, with a large portion of which, and the case made thereby, he has no connection whatever. (1st Mylne Craig, 603.)
The two first propositions refer to cases of misjoinder. The last to multifariousness, strictly so called. (Mylne vs.Craig, 603, Jac. R. 141; Harrison vs. Hogg, 2 Vesey 323, Story's Eq. § 271, 279, 280.)
There is no misjoinder of actions in this case; for the bill is not properly framed for partition. The plaintiff alleges, that he is entitled to all the real estate by inheritance from his father, and John McCosker the younger, and that the will through which alone the defendants claim title to any part of the property is null and void. *Page 222
Partition implies an interest in different persons in the property to be divided. When a complainant not only claims the whole, but negatives the title of the defendant to any part, the bill may be defective, but is certainly not obnoxious to the objection, that a case for partition as a distinct andindependent cause of action is thereby established. Whatever therefore may have been the intention of the pleader, the bill must be treated as single. (Story Eq. § 288, 1 Sim. andStuart 61.)
There is no misjoinder of parties. James T. Brady was a proper party to the bill, for the reason suggested by the Chancellor. In Boule vs. Stewart, 1 Schoale and Lefroy 227, a Solicitor was made a party for assisting his client in obtaining a release. He had no interest in the matters in controversy. It was insisted, that he acted merely in his capacity as Solicitor. Lord Redesdale said he was properly made a party, and ought to be chargeable with costs so far as they related to the release, in case they could not be recovered of his client. (Story Eq. § 232.)
Assuming the truth of the facts charged in the bill, as we must for the purpose of this decision, the infant defendant Maria L. Brady ought not to be charged with costs in any event. She had no agency in procuring the Will, and is incapable of ratifying or confirming the acts of others.
The demurrer of the defendant Brady, is to the whole bill, and can only be sustained by establishing a misjoinder of actions, or parties, to which species of multifariousness it is alone adapted. (Story Eq. Pl. § 284, 1 Mylne and Craig, 603; 2Anstr. 469.)
If the bill is defective in praying for a partition, or contains irrelevant matter unconnected with the case properly presented, the demurrer should be confined to the parts really objectionable and not extended to the whole bill. It was therefore properly overruled by the Chancellor, and the decree should be affirmed.
RUGGLES, JONES, JOHNSON and WRIGHT, Js., concurred. *Page 223
BRONSON, J. and GRAY, J., delivered opinions in favor of reversing the decree, with whom JEWETT, C.J., concurred.
Decree affirmed.