Stein v. McGrath

.BRICKELL, C. J. 1. The original bill may not have stated accurately, or may have stated ambiguously, the relation of the parties, leaving it in doubt whether they were tenants in common, or partners. This being true,'curing the insufficiency or imperfection of allegation by amendment was matter of right at any time before final decree. — Code of 1886, § 3449. By amendment, a new cause of action may not be substituted for that stated in the original bill; nor can there be such change, or varying of the statements of fact, as would entitle the plaintiff to relief essentially different from that prayed by the original bill. The correction of the inaccurate or ambiguous statement of the real relation of the parties cannot properly be said to substitute a new cause of action, or to vary essentially the relief which could have been obtained on the original bill, if the inaccuracy or-insufficiently had not existed. The cause of action — the partition of the property by sale, because it was incapable of division otherwise — remains the gravamen of each bill, and curing the defective statement of the .relations of the parties, by amendment, was matter of right. 2. The statute (Code of 1886, § 3262), confers jurisdiction on the court of chancery, concurrent with that conferred on the court of probate, to divide or partition, or to sell for division or partition, any property,' real, personal, or mixed, held by joint owners or tenants in common. If the remedy is sought in the court of probate, a statutory requirement is, that the application must set forth “a full and accurate description of the property sought to be divided or partitioned.” — Code of 1886, § 3239. This corresponds with the general rule at law, or in equity, in reference to the elements of the pleading in suits for partition. — 17 Am. & Eng. Encyc. of Law, 733. The necessity for such description is not now controverted, but the particular question is, whether an amended bill not in its premises, or stating part, de 599 scribing'tlie property sought to be partitioned, is sufficient, if it refers for the description to an answer and cross-bill filed by a defendant to the original bill. An exhibit containing a description of the property attached to the bill, may be referred to, and would dispense with the necessity of describing the property in the premises, or stating part, for the reason that such exhibit would be part of the bill. But neither the answer and cross-bill nor copies of them are attached to the bill; are not exhibits to it. There is no more than the general allegation that the property is fully described in particular paragraphs of the answer and cross-bill filed to the orig-' inal bill. It may be observed, that all the stating part of the original bill was.stricken out by the amended bill —that alone was the pleading on which the plaintiff could rely, in support of which evidence could be offered, and upon which relief could be obtained. Whether the answer and cross-bill was .appropriate to the amended bill, was matter of consideration for the defendant interposing them, if reliance was placed upon them; and at any time before final decree, either could have been amended by striking out the paragraphs referred to, or by changing the description of the property therein given, enlarging or diminishing it, rendering necessary further .amendment of the bill. Without pursuing further discussion of the question, we are of opinion the demurrers to the amended bill for the want of an accurate description of the property of which partition is sought, should have been" sustained. Any other con-clusion would encourage a laxity of pleading, injurious to suitors, and embarrassing to the administration of justice. This conclusion renders necessary, a reversal, in this respect, of the decree of the chancellor, and a remandment of the cause. Reversed and remanded.