Fleming v. Gilmer

STONE, J. This case comes before us on a demurrer to the bill, which requires us to regard as true every material averment which the bill contains. — Bobe v. Frowner, 18 Ala. 89; Story’s Eq. PI. § 452. The complainant concedes in her bill, that she has been out of the possession of the slaves she sues for since the year 1834; a period of twenty-four years, when her bill was filed. She avers, that her trustee, Mr. Spencer, held the property ten years, until he died in 1844; and that Mr. McKenzie, the executor of Mr. Spencer’s will, held the property from the time of the death of Mr. Spencer until a short time before the institution of this suit, when it went into the possession of Mr. and Mrs. Gilmer. For some nine years after the possession of Mr. McKenzie commenced, the other trustee named in the ante-nuptial contract was in life, and could have maintained a suit for the recovery of the property. If these facts stood alone, and unexplained, the right of the complainant [67] would be absolutely barred, under the authority of Bryan v. Weems, 29 Ala. 423. The case made by the bill, however, is not of this character. According to its averments, both Mr. Spencer during his life, and Mr. McKenzie during the continuance of his possession, held the slaves in subordination to, and in recognition of the rights of Mrs. Fleming in and to the property. This would not constitute an adverse holding, and, consequently, did not ripen into a title. — See Blackwell’s Adm’r v. Blackwell’s Distributees, 33 Ala. 57; Angell on Lim, § § 168-174; McArthur v. Carrie, 32 Ala. 75; Kimball v. Ives, 17 Ver. 430. The holding of Mr. Gilmer is confessedly adverse to Mrs. Fleming. This, however, had not existed long enough, if the statement of the bill be true, to perfect a bar. [2.] It is contended, that the bill iu this case is multifarious, and that the decree of the chancellor should be affirmed on that account, if for no other reason. The alleged fault of the pleader consists in the fact, that the bill unites in one and the same complaintacau.se of action against McKenzie, as the executor of Spencer, the trustee;' a claim against McKenzie, for hire while the slaves were in his possession, and a claim against Gilmer and wife for the slaves, and for hire while in their possession. It is impossible to lay down a rule on the subject of multifariousness, which will be applicable to all cases. A cardinal principle is, to avoid the blending and complication of distinct matters in one suit; while on the other hand, a needless multiplication of separate actions is equally to be deprecated. It is not essential to the unity of a bill, that each complainant or defendant shall have an equal and co-extensivc interest in the entire subject-matter of the litigation. In the varying transactions of life, a compliance with such a rule would be impossible. On the other hand, it is not proper to impose on parties who have an interest in a subject of litigation onerous burdens and expenses in regard to a matter entirely disconnected, merely because another has a common interest in both subjects of contestation. Substantial harmony, with oc [68] casional diversities of interest, is, perhaps, as near an approach to correctness as we,can make. In the present case, there are many, and the most important matters in controversy, which are common to all the defendants. 1st. There is a privty of title between Mr. Spencer, the testator, Mr. McKenzie, the executor, and Mrs. Gilmer, the sole legatee. If the title of Mr. Spencer be defeated, then the title of Mr. McKenzie must fall, unless his possession ripened into a title, or he acquired one in some other way. His title failing, probably the derivative title of Mrs. Gilmer would fall with it. Each party, then, is interested in every question which affects the complainant’s title to the slaves. 2d. Whatever sum may be recovered out of McKenzie, as executor, for the use and hire of the slaves during Mr. Spencer’s life-time, or for the use and hire while in his possession, will be a charge to that extent upon the estate of Mr. Spencer in his- hands, so far as we can now perceive. Mrs. Gilmer, then, being sole legatee, is interested in this question ; and although it may not have been necessary .to join her as a party, if this were the only question in the case, still there would seem to be no impropriety in having her before the court. 3d. If separate suits had been brought against Mr. McKenzie, as executor, for the hire while Mr. Spencer held the slaves; against him as an individual for. the hire during his own possession, and against Mr. and Mrs. Gilmer for the property, and hire while in their possession, the great underlying fact of title to the slaves would have furnished the most material subject of proof in each of those suits. Other harmonies might be pointed out, but we deem it unnecessary to pursue this discussion further. This bill is not, on its face, multifarious. — Horton v. Sledge, 29 Ala. 478; Halstead v. Sheppard, 23 Ala. 568 ; Brinkerhoff v. Brown, 6 Johns. Ch. 139 ; Felder v. Davis, 17 Ala. 418 ; Gaines v. Chew, 2 How. (S. C.) 619. [3.] There was no necessity for joining the representative of the other trustee, Matthew Fleming, as a party defendant. He does not appear ever to have had the [69] possession of this property, and no account is prayed against him. [4.] It might be conceded that the children of complainant were not necessary parties to this suit, and still we think there was no impropi’iety in joining them as defendants. They probably have a future interest in the slaves, and any litigation which bears on the custody, title, or preservation of the corpus of this property, may affect their interests. In one view, it was eminently proper that they should have been before the court. Under the ante-nuptial contract, it was the duty of the trustees, not only to preserve and protect the title of the slaves for the separate use of Mrs. Fleming during her life, but also to hold the title for the benefit of her children after her death, in the event they survived her. The present bill seeks to bring the estate of the trustee to a settlement, and to have the possession of the slaves delivered to the life-tenant, Mrs. Fleming. The trustees being dead, it may be proper to further guard the interests of the contingent remaindermen, by the appointment of another trustee. We do not, however, say that such is the case. That question is not before us. We think, however, that in a suit which seeks to place the property out of the control of the trustee’s executor, and to place it in the control of the beneficiary, there is at least no impropriety in bringing those in remainder before the court in the character of defendants. — Story’s Eq. PI. § § 207, et seq. [5.] The chancellor also erred in supposing that the last clause of section 2486 of the Code bears on this case. We have uniformly held, that the provisions of the Code, which speak of the separate estates of married women, relate to their estates made separate by law, and to none others. — See Smith v. Smith, 30 Ala. 642, and authorities cited. The decree of the chancellor is reversed, and the cause remanded.