Canon v. Ballard

Pitney, V. C. It is apparent at once that the complainant cannot, upon an accounting, have credit for the money received by the defendant [388] from the sale of the Somerset county property without making William W. Canon a party to the suit. The reason of this is that.a decree that complainant is entitled to such credit should protect the defendant against any demand which William W. Canon may hereafter make against him for the money so received ; and as the demand by the complainant for credit of that money is a material part’ of his bill and a necessary part of the accounting prayed for, and as the non-joinder of William W. Canon was stated as a special cause of demurrer, I am of the opinion that the defect so shown cannot be overlooked. But the other questions raised by the other causes of demurrer were treated by defendant’s counsel as more serious, and were thoroughly argued, and should be disposed of at this stage of the cause. With regard to the general want of equity, the complainant shows two distinct equities. First, admitting, as we must, the allegation of the bill to be true, he is entitled to a sale of the Danbury property, and he is entitled to have it sold to the best advantage, so as to bring the highest price, and, measurably, under the direction of the court. In the second place, he is entitled to a determination of the question in dispute between him and the defendant as to whether the debt which he incurred to the defendant when the latter paid his, complainant’s, debt to the insurance companj’-, was satisfied by the conveyance to the defendant of the' Lock street property, or whether the debt remains and the title of the Lock street property is held by the defendant merely as security for its payment. It is quite clear that this question can only be determined in a court of equity. Both these grounds show clear reasons for coming into this court. Another ground of equity is that the complainant is entitled to have his bond for $5,000 secured by the mortgage surrendered and given up to him if it is paid. The possession of the two mortgages, one for $5,000, given by himself, and the other for $2,000, given by his son, and their existence as writings, is presumably of no consequence. Again, if the allegations of the bill be true the complainant [389] is also entitled to have his promissory notes held by the defendant delivered up and canceled. These all show grounds for coming into equity. The next ground of demurrer is multifariousness, namely, that the complainant has mixed together in one bill different matters not connected with each other. It is familiar learning that this is an objection which the courts deals with according to the circumstances of the case, and as will best promote the convenience of the administration of justice. Here it is perfectly plain that every one of the several matters are necessary to be investigated in order to determine whether or not the complainant is entitled to the ultimate relief of a sale of the Danbury property. Has the $5,000 mortgage been paid? If so, then the defendant cannot set up the bond which was given with it as an indebtedness against the complainant. Must the defendant give the complainant credit for the nine hundred and odd dollars received from the Somerset county sale ? If so, then that amount must go in obliteration of any balance due on the $5,000 mortgage, and also in payment of the amount due on the promissory notes, and if any is left then the amount must be applied on the amount paid to the fire insurance company, if that is not already paid by conveyance of the Lock street property. Then was the conveyance of the Lock street property in satisfaction of that debt, or only as security for it ? If in satisfaction of that debt, then the defendant cannot set up that debt against the amount secured by the Danbury property. If not made in satisfaction, then the defendant must account for the rents and profits, and the complainant is entitled to redeem, and he is entitled to have the Lock street property sold to pay, as far as it will, the amount secured thereby, a!nd only the balance brought in against the Danbury property. Thus it will be seen that all these matters are necessary for a general accounting between the parties, to which the complainant is clearly entitled in order to determine his rights in the Danbury property. The result is that the objection on the ground of multifariousness fails. [390] The demurrer must be sustained on the ground of the lack of parties, but, under the circumstances, without costs; and complainant will be permitted to amend his bill by making proper averments to bring in William W. Canon as a party, and the defendant will answer the amended bill within thirty days after service upon him of a copy thereof.