Santacruz v. Santacruz

TaRbell, J. : At the January term, 1870, of the Harrison county circuit court, in chancery, Joseph Santacruz filed his bill of complaint against Ann Santacruz, widow of Jacque Santacruz [718] deceased, and Johanna, Louisa, Ann, Tony, George, and John Santacruz, minor Heirs of deceased, all residents of Harrison county, asserting among other things, that on the 10th day of March, 1853, Brantly Bond and wife, conveyed a lot of land situated in the town of Biloxi to complainant and Jacque Santracru?, deceased, brother of complainant. On the 16th day of October, 1856, the deceased executed a mortgage to complainant, giving him a lien upon said land to secure the payment of two hundred dollars, in twelve months thereafter; the debt secured by said mortgage is yet due and unpaid, together with the interest; Jacque Santa-cruz died on the — day of 18 — , intestate; there.has been no administration on the estate of deceased; there were unsettled accounts between the brothers at the death of the deceased. By a verbal agreement, the deceased was to pay thirty dollars rent per annum to complainant for said lot and land; the settlement of accounts between complainant and the estate of his deceased brother was submitted to arbitration, by a written agreement between complainant and the widow of the deceased; the agreement to arbitrate, and the award are made exhibits; but the object of setting out, the arbitration is not stated, and there is no special prayer in regard to it; a suit instituted in the circuit court of Harrison county, by Ann Santacruz against Joseph Santacruz, is referred to and the wrjt made an exhibit, its connection with the case at'bar is not indicated; complainant prays for general relief, and particularly that the mortgage executed to him October 16, 1856, be foreclosed ; that an account of the sum due on the mortgage and other accounts, including rent, be taken; that an injunction issue restraining the suit at law referred to until the hearing of the case at bar, and that it be then made perpetual; a receiver, a subpoena, etc., are also prayed for. The account charged to deceased is for flour, bacon, biscuit, coffee, and quinine, amounting to $465. The agreement to arbitrate mentioned in the bill is as follows: “We the undersigned, Ann Santacruz, widow of Jacque [719] Santacruz, and Joseph Santacruz, do hereby agree that in order to avoid a lawsuit, and to settle finally between us the differences in relation to a certain house and lot situated near the market-house in Biloxi, purchased by said Jacque Santacruz deceased, and Joseph Santacruz from Brantly Bond and wife, as per deed, the 10th day of March, 1853, and recorded in the clerk’s office of said county, on the 11th day of April, 1853.. Also in order to settle all legal accounts accruing during the life-time of deceased, between said parties. That we will choose two arbitrators each, and they shall have power to settle finally, all claims and accounts between the undersigned parties, and in case they cannot agree, they shall select the fifth one, and we hereby bind ourselves to abide by the decision of the said arbitrators, and the same shall be binding upon our heirs hereafter. “ Given under our hands and seals, this the 12th day of January, A. D. 1889,' (Signed) Ann Santacruz, [seal] “ Jos. Santacruz, [seal].” The award of the arbitrators recites that they were “ duly sworn to arbitrate a matter of property and accounts in dispute between the estate of James Santacruz, deceased, and Joseph Santacruz,” and that “ after hearing all the testimony in the case and investigating the matter as far as in their power,” they decreed that “ Joseph Santacruz shall execute a quit claim deed to the children of his deceased brother, Jacque Santacruz, of all his right, title and interest in and to a certain property now occupied by the heirs,” of deceased, and described in the deed of Bond and wife before referred to, and that he pay to the widow of the deceased forty-nine dollars, balance due deceased for labor. The arbitrators further awarded that each party shall pay to each of their arbitrators and witnesses the expenses of the arbitration, and further, that when their award is complied with, “ that is a final settlement of the disputes between the estate of James San-tacruz, deceased, and Joseph Santacruz, his brother.” Signed and sealed by the arbitrators, February 20,1889. [720] Ann Santacruz demurred to the bill of complainant on the following grounds : 1st. Want of jurisdiction, because by the constitution the circuit court have no longer jurisdiction of matters in equity. 2d. Because administration has not been granted on the estate of deceased, and in the face of this fact complainant is seeking to collect money out of said estate on an open account. 3d. It appears upon the face of the bill that the claim of complainant is barred by the statute of limitations. 4th. The estate of the deceased is without representation in court, and the remedy of complainant is barred by statute. 5th. The award is binding and conclusive upon complainant. 6th. There are in the bill no sufficient charges of fraud. The record recites, that it is decreed that the demurrer be overruled, “ with leave to answer in thirty days, and the complainant, on motion, is here granted leave to amend his bill of complaint, from which opinion and decision of-the court the respondent prayed and obtained an appeal.” In this court, the only error assigned is the action of the court below in overruling the demurrer. The bill is defective, for several causes. Among others, it is multifarious. The introduction of the suit instituted by Ann Santacruz against Joseph Santacruz, into the bill of complaint in this case, is without any apparent reason. If that suit has any connection with the one at bar, the bill fails to explain how, or in what manner. The bill states an action instituted, and prays an injunction, without further particulars. The open account of complainant against deceased, including the claim for rent, is a simple claim within the jurisdiction of a court of common law. It has no place in this bill. So, with the reference to the arbitration and award, which seems to us to serve no other purpose than to increase the objectionable features of the bill. We deem it out of place to discuss the questions involved in this statement, which is improperly inserted in this bill. [721] The only legitimate purpose of the bill before us, apparent'on its face, is the foreclosure of the mortgage ; but it is not sufficient, without amendment, to this end. By adding a prayer for sale, upon the coming in and confirmation of report of amount due, after giving the proper parties a time certain within which to pay, and upon their failure to do so, this bill would doubtless answer the object named, first expunging the improper matters therein. In regard to the statute of limitations, we are unable to express any opinion, as the record fails to show the date of the demise of James Santacruz.' And we might add, that the allegations of fraud are insufficient for the purposes for which such averments are usually employed, the averment being a mere naked, charge, without any statement of the elements of fraud, showing a case for equitable relief on that ground. 41 Miss., 460. The decree overruling the demurrer is' reversed; the demurrer is sustained and the bill dismissed, unless at the next term of the chancery court of Harrison county, the complainant shall apply for leave to file an amended bill free from the vices of the one under review. Bev. Code, 510 ; art. 193, § 16; ib., 547, 49.