The bill, which was filed in 1824, alleged that the testator at his death owed no debts, and that the County Court of Jones assented to the legacy to Mary A. Gregory; that she died in 1826, having survived her husband, John Gregory, more than twenty years, leaving eleven children, (32) the issue of her marriage — of whom the feme plaintiff and Lewis Gregory were two; that three of her children, Celia, Willis and Ashton, resided in South Carolina; that the rest of them, whose names were set forth, had removed to other states unknown to plaintiff, and were dead, without representation in this State; that they all, except one, Allen, survived their father, but died before their mother; that John Gregory many years ago sold to Peter Hargett, the elder, the two slaves above mentioned; that the sale was of the life interest of his wife. That twelve of the defendants, who were named, had possession of some of the issue of the two slaves, claiming them under Peter Hargett, the elder, "well knowing the premises, and the just rights of your orators in behalf of themselves and others, the children of the said Mary Ann Gregory, and combining how to injury your orators and others their associates, have set up an absolute title to the slaves." The bill then proceeded: "That because of the absence and death of many persons, as hereinbefore stated, entitled to claim with your orators, and the want of representation on the estates of many dead as aforesaid, it is wholly impossible for your orators to assert their rights in the ordinary form of law." No persons were made parties as the personal representatives either of Peter Hargett, the elder, or of John, or Mary Gregory, there being none in existence. The prayer was that the persons unknown, claiming an interest similar to plaintiff's, might be made parties in such way as the court might direct, and also that they might answer and become parties defendant and submit to such decree as might be pronounced; and further, that the other defendants claiming under Peter Hargett, the elder, might discover the names of the slaves in their *Page 33 possession, and be decreed either to surrender them to the plaintiffs or account for their value, if they had sold them, and for their hire since the death of Mary A. Gregory.
The defendants claiming under Hargett demurred to this bill, and assigned for cause of demurrer, first, that the plaintiff had a remedy at law, by action of trover or detinue; secondly, for multifariousness.
MARTIN, J., at JONES, on the spring circuit of 1832, overruled (33) the demurrer, and defendants appealed. The first cause assigned for demurrer is because plaintiffs have a remedy at law by action of trover or detinue.
After what was done by the county court, and the long possession of the slaves by and under the mother (tenant for life of the legacy), the title of the plaintiffs seems to be admitted on both sides to be a legal title. We also think it is a legal title. But if the plaintiffs could, by any possibility, recover at bar, that is not a reason sufficient, in a case like the one disclosed by this bill, why they may not also proceed in equity. The plaintiffs claim by, and seek to establish in themselves, one legal title to the slaves as against each and all the numerous defendants now holding the same. Plaintiffs claim as executory devisees after the death of their mother, by force of the bequest in Joseph Gilbert's will.
Lord Redesdale says courts of equity will take jurisdiction and prevent multiplicity of suits at law. And the cases in which it is attempted, and the means used for that purpose, are various. With this view, where one general legal right is claimed against several distinct persons, a bill may be brought to establish the right. Mitford's Pleadings, 145. Thus, where a right of fishery was claimed by a corporation throughout the course of a considerable river, and was opposed by the lords of manors and owners of land adjoining, a bill was entertained to establish the right against the several opponents, and a demurrer was overruled. Mayor of York v. Pilkington, 1 Atk., 282.
But it is argued here by defendants' counsel that this right to come into equity by a plaintiff who claims one general legal right against several distinct persons is confined to those cases where a judgment at law against any one of the many adverse claimants would not quiet the plaintiff against future disturbances and trespasses, even by that very defendant himself; as in the case referred to in Atkins. If any of the defendants had been sued at law for fishing in the river under their claim of a several fishery, and plaintiff's title to a sole and (34) *Page 34 separate fishery had been established, still plaintiff could have recovered at law only for the injury which he had sustained before issuing his writ; and he would, on a second trespass, even by the same defendants, be compelled to bring a new action. That when the plaintiff having the legal title is liable to be harassed by a number of persons claiming the same thing adversely to that title, the plaintiff at law having no other remedy but to sue toties quoties, as each and every one of those adverse claimants may make the trespass, then, and then only, as law cannot give complete relief, will the court of equity step in and give its aid by ordering all the adverse claimants to submit their rights to one trial at law, or an action to be brought by or against one or a few of the many claimants, as may be directed. And, if the plaintiff's legal right be established on that trial, then all the adverse claimants, however numerous, shall and will, in equity, be forever enjoined, and the plaintiff forever quieted in his title and rights. And it is denied that except in cases of this kind only will a court of equity entertain jurisdiction, to prevent a multiplicity of suits at law.
The answer which we give to this argument is that the case put by the counsel is but one among many where equity will interfere to prevent a multiplicity of suits at law. The cases in which it is attempted, and the means for that purpose, "are various," says Lord Redesdale. The case in Atkins is put as one among many in illustration of this rule. The object of a court of equity in entertaining such a bill is to prevent multiplicity of suits at law by determining the rights of parties upon issues directed by the court, if necessary, for its information, instead of suffering the parties to be harassed by a number of separate suits, in which each suit would only determine the particular right in question between the plaintiff and defendants in it. The notion that equity interposes only to prevent a multiplicity of actions toties quoties, as the trespasses are committed, is answered again by stating that such a bill can scarcely be sustained where a right is disputed between two persons only, until the right has been tried and decided at law. Mitford, 146. (35) We think the first cause of demurrer must be overruled.
The second cause assigned for demurrer is for multifariousness. It is said that the interest of each of the defendants is separate, and that neither one has any concern in the defense of their codefendants.
The court will not permit a plaintiff to demand by one bill several matters of different natures against several defendants; for this would tend to load each defendant with an unnecessary burden of cost, by swelling the pleadings with the state of the several claims of the other defendants, with which he has no connection. But a demurrer of this kind will hold only when the plaintiffs claim several matters of different natures. But when one general right is claimed by the bill, though the *Page 35 defendants have separate and distinct rights, a demurrer will not hold. Mitford, 182; Dunn v. Dunn, 2 Sim., 329; Maud v. Ackton, ibid., 331. The plaintiffs do not claim several separate and distinct rights, in opposition to the several separate and distinct rights claimed by the defendants. But they claim one general and entire right, though it may be opposed by distinct rights claimed by the several defendants. Mitford, 182; Berke v. Hardre, 337.
This ground of demurrer is therefore overruled.
The third cause of demurrer assigned ore tenus is that the plaintiffs should have established their titles at law, at least in one action, before they filed their bill. The answer is that indeed in most cases it is held that the plaintiff ought to establish his right by a determination of a court of law in his favor before he files his bill in equity. Mitford, 146 (3 Am. Ed.). But it is not always necessary to establish a right at law before filing a bill, as in cases of owners of patents, copyrights, etc., where the right appears of record. Ibid., 147. Nor will it be required where there are not the ordinary means of trying it at law. Ibid., 147. In this case, from the vast number of the parties interested, and the difficulty of ascertaining them without the aid of this Court, it is not practicable to bring a suit at law in which the plaintiffs will not be exposed to defeat upon technical objections. And if a suit at law should be deemed necessary to establish the title, that suit can be brought under the direction of a court of equity with all the requisite facilities for a trial upon its merits.
This cause of demurrer, we think, is not sufficient. (36)
The fourth cause of demurrer, assigned also ore tenus, is that the plaintiffs, by their own showing on the face of the bill, have not made all the proper and necessary parties, there being other persons who are interested in the executory devise.
The old rule, that all persons having any charge upon or interest in the estate, however numerous, must be made parties, has been dispensed with for purposes of convenience, when it is impracticable, or extremely difficult, to make them parties. 11 Ves., 429; 2 Mad., c.p. 182; 1 John C. J. Rep., 349, 437. When a sufficient reason to excuse the defect of parties is suggested by the bill, as when a personal representative (as here) is a necessary party, and the bill states that the representation is in contest in the ecclesiastical court, an objection for want of parties will not hold. 2 Atk., 51; 2 Mad., c. p. 178.
The plaintiffs have stated in their bill that several of the children of Mary Ann Gregory removed out of the State and have died abroad, and that there are no representatives on their estates in this State. Neither are there any administrators on the estates of John and Mary A. Gregory, and therefore it is impracticable to make them parties. If the *Page 36 persons interested are out of the jurisdiction of the court — and it is stated so in the bill and proved — it is not necessary to make them parties. And though, in these cases, the court cannot compel them to do any act, it can proceed against the other parties; and if the disposition of the property is in the power of such other parties, the court may act upon it. Smith v. Hibernia, w. 1 Sch. 2, etc., Lef., 240; Williams v. Wingates, 2 Bro. C. C., 399; 1 Jac. Walk., 369. The plaintiffs in this bill admit the rights of their deceased father, mother, brothers, and sisters; and also the rights of those alive who reside out of the State. They allege the want of administration on the estates of the deceased persons, and the absence of others, as one reason why they did not proceed at law. The rights of the plaintiffs, which may be ascertained under a decree in this case as just demands, will hereafter be binding on those interested who are not now parties to this bill. But those not parties will not be bound by any account taken in his cause until they have the means to contest the facts. 1 Mad., 529; Mitford, 171; Good v. Blewitt, (37) 19 Ves., 336. This may be an inconvenience to the defendants; but a greater inconvenience would exist on the other side if the plaintiffs should be entirely deprived of their rights because, according to the old rule, all interested were not parties, when the plaintiffs show that it is impracticable to make them parties. The law will not force the plaintiffs to be at the responsibility of administering on the estates of all the deceased relations.
We are of the opinion that the demurrer must be overruled and the decree below affirmed with costs.
PER CURIAM. Affirmed.
Cited: Spivey v. Jenkins, 36 N.C. 129; Robertson v. Stephens, ibid., 250.