Burleigh v. White

Peters, J. We think the objection to tbe master’s acting in the case is not well taken. He bad a general mandate only, but did not exceed the power that would have been committed to him had his duties been prescribed by the court with more particularity or detail.- No inconvenience has arisen from it. His [136] examinations and report fully cover all the grounds that either side rests its questions upon. We can have no doubt that the complainant should be allowed for such money as he paid out for tracing lines, scaling lumber and the like. It is not his own services that he asks pay for, but to have the sums refunded to him which he has paid out. The evidence before the master is not before us. The presumption is that this account was properly examined and allowed. We think the allegations in the bill in relation to the services of the complainant as joint owner or copartner, referred to what he was to do in respect to the property himself. It does not follow that no outside services were necessary. Another question presented is, whether the auditor should state the accounts as far as items are concerned which have accrued from the property since the death of White, the original' holder of the title to the lands. In other words, shall the land and all matters and accounts be settled up to this time, or only up to the death of White ? The bill was originally against the administrator and heirs of James White, and now stands by amendment against his heirs, one of whom is the administrator and, subject to the complainant’s claim, the sole owner of the property. The whole accounts are one subject matter, the pursuit of one inquiry, and relate to the same estate. No difficulty can arise from making in this proceeding a final settlement. On the contrary, it must be a positive benefit to both sides. Time, labor and money will be saved thereby. Two suits should never be required where all matters can be adjusted in one. The original claim only is thereby disposed of, with such matters as have arisen ■ out of the same pendente-lite. The gist of the bill is virtually against the property and the fruits of.the property. A supplemental bill is never necessary where the original bill can accomplish a just result. Having the bill in our hands, under the prayer for general relief, all necessary relief can be afforded. This is in accordance with the general rules laid down by all authors on the subject of equity. Nelson v. Bridges, 2 Beav. 239, Story Eq. Jur., § 794, and note. If this were not so, a part of the subject matter of the suit could be abstracted and carried away while the [137] plaintiff’s claim is being resisted and delayed by the defendant, without adequate remedy for it. The rights of all the parties can be preserved by the form of the decree. All the respondents but one are now virtually out of the controversy, but should not recover costs, as they are bnt nominal parties and have been subjected to no expenses in the litigation. Their assignee has been the only active defendant. Tire bill is sustained with costs. The complainant is declared to be the owner of an undivided half of the lands remaining unsold, and of one-half of all sums of money, in any form, due or to be due, for lands, or stump ages therefrom, sold and not accounted for in the report of the auditor ; and entitled to receive a conveyance of such shares from Russell H. White in any capacity or right in which he is the holder of the same. The complainant is to have a lien upon the other half of such lands and sums of money for the sum of eight thousand and seven hundred and thirty-one dollars and forty-four cents, and interest thereon from March 1, 1878, and for the costs of this suit. The-principal respondent and his predecessor in title having taken and converted to their use a portion of the common estate, it is equitable, and in accordance with the principle regulating copartnerships and co-ownerships, that the complainant should be remunerated therefor from the same property. Therefore the master already appointed shall appraise and set off to the complainant such undivided portion of the half of the lands and claims last named as will be equal in value to the sum and interest and costs aforenamed; land to be first taken in preference to the dioses in action; a suitable conveyance and transfer of the appraised property to be made by the respondent, Russell H. White, to the complainant, unless an amount equivalent to the amount of the appraisal shall be paid to the complainant, or be secured to him, by the respondent, upon such terms as a single judge may settle when the master’s report again comes in. A decree in accordance with these terms and conditions to be entered as a final determination of all matters under this bill in dispute between the parties. Sampson v. Alexander, 66 Maine, 182. A put,eton, C. J., Walton, Barrows, Daneorth and Libbey, JJ., concurred.