Elizabeth Rials made her will on 2 February, 1847, and, after giving small pecuniary legacies, bequeathed and devised as follows: "It (314) is my will that all my just debts and funeral expenses be paid, as soon after my decease as possible, out of any money that shall first come into the hands of my executors from any portion of my estate, real or personal. I give to my excutors, to the use of Rhoda Parker, $100, to be given as she may require it. If she depart life before she receive it, I then give and bequeath it to my executors. I give to my brother Duncan Bedsole, and my friend Malcom Monroe my black woman Dinah, my boy Jim and boy Henry, and my girl Mary and the child that she now has or may hereafter have, and all my land in the county of Bladen, lying on or about the beaver dam and elsewhere. I give and bequeath all the residue of my estate, real and personal, to my brother Duncan Bedsole and friend Malcom Monroe, and appoint them my executors. And it is my will and desire that my executors take into possession all my estate, real and personal; and that if any difficulty should arise about my estate, my executors should defend the same."
The testatrix soon after died and the will was proved by both of the executors, who are the parties to this suit. The bill was filed in October, 1848, and states that the plaintiff was an unlearned and ignorant man and the defendant shrewd and acquainted with business, and that in consequence thereof it was agreed between them that the defendant should take on himself the whole burden of executing the will; and that accordingly the defendant took into his exclusive possession all the estate, both real and personal, but omitted to return any inventory. The bill further states, "that the defendant, practicing upon the ignorance of your orator, through fraud and misrepresentations induced your orator to make to the *Page 221 defendant a conveyance of all his interest in the said lands on or about the beaver dam, dated 1 June, 1847, alleging and declaring that such was the will of the testatrix; whereas your orator charges the same to be false and fraudulent." The bill then states that the residue of (315) the estate was considerable, and that, after paying all the particular legacies, there would remain a considerable sum for division between the plaintiff and defendant; but that the defendant had failed to pay off the pecuniary legacies, and, especially, that to Rhoda Parker. The prayer is for a discovery of the consideration of the deed for the land and of the representations and other circumstances under which it was made, and for an account of the personal estate, and that all legacies should be paid, and the clear residue be divided between the plaintiff and the defendant, and that the negroes should also be divided, and "that the said deed made by the plaintiff to the defendant may be decreed to be canceled, as having been obtained through fraud and misrepresentation."
The defendant put in a demurrer of multifariousness, in that the bill seeks to compel the defendant to account for the personal estate of the testatrix and pay to the complainant the legacies bequeathed to him, and also to compel the defendant to surrender a deed from the plaintiff conveying to the defendant certain real estate; the same being matters separate, distinct, and independent in their nature, and wholly unconnected with each other. Upon argument the demurrer was overruled; but the defendant was allowed an appeal to this Court. The Court is of opinion that the demurrer was properly overruled. It seems from the books that multifariousness consists in joining in one bill two or more distinct grounds of suit against the same or different persons. It exists, then, where there is a misjoinder of persons or a misjoinder of the subjects of litigation. (316) The objection is commonly made on the first ground; as one person, in having a controversy between the plaintiff and himself decided, ought not to be obliged to submit to delays that might arise out of a separate controversy between the plaintiff and another defendant. That reason does not ordinarily apply when there is but one defendant, though there be several distinct subjects, as the objection goes only to the convenience in the modes of proceeding, and a single defendant may, and generally does, prefer all disputes between him and the plaintiff to be settled in one suit, rather than incur the expense of two or more. Although the objection seems, thus, not to be as forcible against entertaining a bill when there is a joinder of distinct subjects against *Page 222 the same person as it is against a bill in which there is both a joinder of different subjects and persons, yet it seems to be thought that a misjoinder of subjects against the same person is, of itself, a good objection to a bill, if the defendant thinks proper to take it. It may be remarked, however, that very few cases are to be found in which a bill against a single person has been dismissed on that ground. That of Johnson v.Johnson, 6 John. C. C., 163, is an instance of the application of the rule, and was pressed in the argument at the bar. But that case can hardly be considered a precedent upon the general doctrine, as it proceeded upon very special grounds. It was a suit for divorce a mensa etthoro and also for one a vinculo matrimonii upon the distinct grounds of cruelty and adultery; as to which the statute required different defenses, namely, as to one, on oath; as to the other, not; and likewise different modes of proceeding to ascertain the facts. Therefore the case has no general application; and no other was cited which was precisely apposite. But it is not requisite to look for other cases on that point or to determine how far the Court should go in refusing cognizance of a bill upon the ground simply that it seeks relief against a single person in respect to two distinct matters; for, admitting that such a bill (317) would not be sustained, the present, as it seems to the Court, does not fall within the rule.
It is obvious that the principle can only apply when two things concur: first, when the different grounds of suit are wholly distinct; and, secondly, when each ground would, as stated, sustain a bill. If the grounds of the bill be not entirely distinct and wholly unconnected; if they arise out of one and the same transaction or series of transactions, forming one course of dealing and all tending to one end; if one connected story can be told of the whole, then the objection cannot apply. Suppose a guardian to make an unfair bargain with a late ward, just of age, and to obtain several conveyances for realty and personalty. Undoubtedly, one bill could cover the whole case; and that, even if the person obtaining the deeds were dead, and the relief was sought against his heirs and executor. The same defense would be applicable to the different parts of the case. It must be the same with respect to dealings between other trustees or quasi trustees, from their confidential relation, and cestui que trusts. In such cases a bill may be filed in affirmance of the original right of the plaintiff, and in order that the relief in respect to it — which is the main relief — may be effectual, the plaintiff may state in his bill any number of conveyances improperly obtained from him, either at one or more times or respecting different kinds of property, and ask to have them all put out of his way or to have reconveyances; for the several conveyances do not so much constitute distinct subjects of litigation, but are rather so many barricades erected by the defendant to *Page 223 impede the plaintiff's progress towards his rights. The same equity, we think, must exist against conveyances of property devised under a will, whether real or personal, obtained by an executor from devisees or legatees to be the better or the more easily managed or disposed (318) of, with a view to the purpose of the will, or upon such a suggestion. If taken upon a suggestion of that kind, and they do not state the purpose on their face, and the executor should, on that ground, set them up as absolute conveyances to himself, after the purposes of the will have been answered, or when there were, in truth, no such necessities of the estate, though suggested, it is apparent that there ought to be relief against such conveyances; and that, within the principle we are considering, the relief may and ought to be had upon a bill for administering the estate and settling the actings of the party as executor, or connected with the office. If the executor obtained the conveyance by reason that he was executor, and upon a suggestion that it would enable him the better to discharge his office or promote the interest of the maker of the deed, the latter may, in a bill for an account of the estate, insist likewise on a reconveyance, upon the ground that the account will show either that the purposes for which the conveyance was made have been answered, or that they never existed, and that the suggestion was false from the beginning; for it is plainly a fraud, committed in the course of the defendant's administration and arising out of the relation created thereby. Such seems to be the case which it was an object of this bill to state. The statement, it is true, is very imperfect, and the writer may not have had a clear conception of the particular equity on which the right to relief in this suit depended. We cannot say, indeed, that there is enough in the bill to authorize a decree for the plaintiff on this part of this cause, when it comes to a hearing. Whether there be or not is not at this time to be considered, as the case is here by appeal from an interlocutory decree on a special demurrer. What we have to say is, that such an equity exists, and that there is a manifest propriety in connecting the obtaining of such a conveyance and the trusts and purposes on which it was given and to which it has been applied (319) or misapplied, and asking relief in respect thereof in the same bill in which relief is sought in respect to the other acts of the executor, whether those that are strictly virtute officii or those arising out of trusts imposed or supposed to be imposed on him as executor.
Here the will gave land to the plaintiff and defendant and directed that the executors should take into possession, not only the personal, but the real estate, and defend it if any difficulty should arise about it, and, further, that they should pay the debts and funeral expenses out of the money that should first come into the hands of the executors from any portion of the estate, real or personal. The land, then, although *Page 224 devised, was charged with the debts and expenses, and the executors were required to enter into it and apply the profits to those purposes. The bill states, also, that the parties, owing to the superior capacity for business of the defendant and the incapacity of the plaintiff, agreed, immediately after the will was proved in May, 1847, that the defendant should act solely as the executor, and that accordingly the defendant took exclusive possession of the whole estate — real as well as personal. Then it was that the defendant also induced the plaintiff to execute a deed for the land, "alleging, and declaring, through fraud and misrepresentation, that such was the will of the testatrix," and the plaintiff, through ignorance, and confidence in the defendant, believed the representation. Viewing the statement of the bill as to the occasion and reason for the conveyance, in connection with the provisions of the will and the absence of any valuable or good consideration, it must be supposed, whether sufficiently expressed or not, that it was the purpose to charge in the bill that the defendant, the sole acting executor, required the conveyance from the plaintiff upon the idea that the will imposed duties on the executor, as such, in respect of the land and the payment of (320) the debts out of its produce, and that, as the plaintiff was giving up the executorship, he should also give up the land to the defendant, and to that end make a conveyance of it. Thus regarded, the arrangement and conveyance were but acts, whether at the time rightful or wrongful, in the course of the administration of the estate, and they form proper subjects for consideration in a bill like this, as arising out of the administration. On this ground the demurrer would be properly overruled, if the statements of the bill be sufficient to show that the deed was made under the circumstances and for the purposes supposed.
If, however, the allegations be so defective on that head that the plaintiff could not get a decree in respect of the land, then the point raised by the demurrer is still as conclusively against the defendant. We rather suppose that the bill is too barren of facts and vague to entitle the plaintiff to a decree for any land. It does not identify the land conveyed, nor, indeed, allege that the testatrix was seized of any particular land, nor what estate she had in it, if any; and it is difficult to see what in particular constituted the "fraud and misrepresentation" by which the defendant got the conveyance. Supposing then, the statement in the bill to be insufficient to authorize a decree for the land, it follows that the bill cannot possibly be multifarious; for, in its nature, the objection of multifariousness is, that the bill contains two distinct causes of suit, in respect of each of which, as the bill is framed, the plaintiff may have a decree; whereas this bill would then be one, in which there was as to one subject a good case, and as to the other a bad *Page 225 one, so that, in fact, the plaintiff could not have a decree for distinct subjects, but only for a single one. Such a bill is not multifarious in any proper sense of the term, so as to admit of a demurrer to the whole bill on that ground and cause it to be dismissed as well in regard to the good case as the bad one. Certainly not; for utile per (321)inutile non vitiatur. Instead of demurring for multifariousness, the proper course, according to circumstances, would be to refer the bill to have it reformed for impertinence; or to demur to that part of the bill, if the party does not choose to answer; or to answer and insist on the defense, as to so much of the bill, at the hearing; for, as far as the plaintiff has a good cause, he ought to be relieved, and not turned out of court merely because he unnecessarily introduced other matter that is impertinent to that case, and, at the same time, does not constitute another substantive ground for a decree.
It must be certified that there was no error in the interlocutory decree, and the defendant must pay the costs in this Court.
PER CURIAM. Ordered accordingly.
Cited: May v. Smith, 45 N.C. 197; Land Co. v. Beatty, 69 N.C. 333;Young v. Young, 81 N.C. 97; King v. Farmer, 88 N.C. 26; Heggie v. Hill,95 N.C. 305; Daniels v. Fowler, 120 N.C. 16; Fisher v. Trust Co.,138 N.C. 229, 235, 246; Hawk v. Lumber Co., 145 N.C. 50; Ricks v. Wilson,151 N.C. 49; Quarry Co. v. Construction Co., 151 N.C. 349, 350; Ricksv. Wilson, ib., 49; Chemical Co. v. Floyd, 158 N.C. 462; Lee v. Thornton,171 N.C. 213.