McBryde v. . Patterson

FeaesoN, C. J. Under the “ old mode of procedure,” íd a petition for partition, if the defendant pleaded “sole seizure” the proceeding was stayed by the Court. The plaintiff directed to bring an action of ejectment to try the title, and the defendant required to confess an “actual ouster” for the purpose of enabling the plaintiff to bring the action, as a tenant in common could not maintain ejectment against his co-tenant unless there had been “ an actual ouster.” That practice is excluded by the Code of Civil Procedure, for it in effect requires, or at least strongly recommends all matters of controversy growing cut of the same transaction, or concerning the same subject between all parties having an interest therein, to be disposed of in one action. This mode of procedure answers a good purpose in the general, by saving costs and preventing the necessity of resorting to more *481 than one court; but in particular cases {of which the one now under consideration furnishes a noticeable instance,) it produces so much confusion and complication as to almost pot it out of the power of any one Court to deal with the case. This was a special proceeding before the Jndge of Probate by petition for partition of land. The defendant denied the relation of tenant-in-eoimnon, and alleged that he was in pos* session of the whole tract in severalty, and had a good title in fee simple, under one Carolina Gordon. The pleadings were thereupon amended, other parties plaintiffs were made, and “ Carolina Gordon ” was made a party defendant 5 she answers, alleging that the defendant, Patterson had procured her to execute the deed under which be claims title to the whole tract of land in severalty by fraud, and prays to have it can-celled. We have by the pleadings (stripped of verbiage and of’ equivocal admissions and general denials, to which “attorneys at law,” in drafting complaints and answers are never justified in resorting. A-petition for partition, and a plea,, “ sole seizure this raised a question of title to land, which the Judge of Probate bad no right to decide and then a claim on the part of Carolina Gordon to have her deed cancelled,, appealing to a jurisdiction heretofore exercised by Courts of' equity exclusively, which, of course, the Judge of Probate could not assume. Thus embarrassed by questions raised by the pleadings,, which he had no power to decide, the Judge of Probate concluded to “ cut the knot,” and “ dismissed the whole proceeding at the cost of the plaintiff.” Upon appeal, all of the proceedings before the Judge of Probate were duly certified to the. Superior Court, and the case was thereby put in that Court, to be disposed of agreeable to law. We concur with his Honor in the opinion that the Judge of Probate erred in giving judgment that the case be dismissed at plaintiff’s cost. True, he had no right to decide upon the question of title,. *482 raised by the plea of “sole seizure,” put in by the defendant Patterson, or opon the question of equity to have her deed cancelled, raised bjT the defendant Carolina Gordon; but the ease was properly instituted before him, in the first instance, byr the petition for partition, and the questions of legal and equitable ground of relief raised by the subsequent pleading?, which questions he had no power to dispose of, did not authorize a judgment dismissing the case. These questions of right to have partition, sole seizure, equity of cancellation, raised by the pleading in the original and in the amended complaint and answer, are presented with ;so many “ variations” as to swell the record to an appalling •volume, for it had accumulated like a ball of snow which boy’s :roll over and over until it becomes too big for them to roll ■over again. Whereupon the Judge of Probate enters judg-.merit, “ dismissing the case at plaintiffs’ cost, and plaintiffs ■appeal. As before said, we concur with his Honor in the opinion 'that the Judge of Probate erred ifl dismissing the case, but we •think his Honor likewise erred in ordering the case to be remanded. Cuibono? To roll the ball over again, would only ■add another layer of snow. As the case and a fall transcript of everything that had been done in the Court of the Judge of Probate, was in the Superior Court by the appeal, that is, the appeal had substantially, •and ought to have been allowed the effect of the writ of pone or of tolt, mentioned in Blackstone, vol. 3d, by which, cases that the inferior Courts by reason of pleas, &c., put in after the action was instituted, could not deal with, were required to be ■“ sent up” or “ put” in the higher Court. By this analogy, for we are groping in the dark, as the Code of Civil Procedure does not provide for the ease, we are of ■opinion, that the appeal had the effect of putting the case in the Superior Court, and it was the duty of bis Honor to have -eliminated from the transcript, and decided the point of law, ¡made by the answer of Patterson on the plea of “ sole seizure,” *483 about wliich, after much procrastination on both sides, the facts are admitted by the pleadings, to-wit: Robert Hughes owned the land in controversy, and acquired it by purchase ; he was a bastard, and died without leaving wife or children or mother, but leaving him surviving a sister, who was also a bastard, that is, Carolina Gordon, and three or four other brothers and sisters who are legitimate children of his mother ; from whom the plaintiffs derive title. The plea of “ sole seizure” is put on the construction of the rules of descent, Bat. Rev., chap. 36, rule II, making the point of law, is the bastai’d sister of a bastard brother, entitled to land purchased by him, to the exclusion of brothers and sisters born in lawful wedlock? That is a question of law, which his Honor- ought to have decided, and one which the Judge of Probate had no right to decide, as it involved a question of title to real estate, which, under the old mode of procedure, could only have been disposed of in an action of ejectment, and in regard to which, under C. O. P., the Judge of Probate had no jurisdiction. It was likewise, supposing the plaintiffs had an interest, the duty of his Honor to have disposed of the question of fraud in the procurement of the execution of the deed of Carolina Gordon, by having an issue of fact tried by a jury. After this, the Superior Court would have been in a condition to issue a writ of procedendo to the Judge of the Court of Probate, if the result of the subsequent proceedings made it necessary to order partition to be made. This opinion will be certified. The plaintiff McBride and the defendant Patterson are to pay the .-cost of this Court equally. Pee CuRiAM. Judgment accordingly.