Darcey v. Lake

Peytok, C. J. : On the 12th day of March, 1859, George Lake, Sr., executed to J. W. Ohamplin three promissory notes for $3,660 47 each payable in two, three and four years thereafter, and; [114] to secure the payment of tlie same the said George Lake and Matilda J., Ms wife, on the 16th day of July, 1859, executed to said J. W. Champion a mortgage on certain real and personal property, situate in Claiborne county in this state, being the same land which was conveyed by one Jonathan McCaleb to the said Matilda J. and her children on the 24th day of March, 1851. On the 15th day of March, 1862, the said J. W. Champlin indorsed and delivered to Darcy and Wheeler two of said notes, and on the 18th day of September, 1862, he indorsed and delivered the other of said notes to Garthwaite, Lewis & Stuart. And on the 17th day of August, 1866, Henry G. Darcy and William Wheeler, under the firm name and style of Darcy & Wheeler, and Caleb C. Garthwaite, William M. Lewis and William Stuart, under the firm name and style of Garthwaite, Lewis & Stuart, filed their bill in the chancery court of Claiborne county against Matilda J. Lake, Stephen F. Smith and ^lice, his wife, and George Lake, Jr., to foreclose the said mortgagors’ equity of redemption, and for a sale of the property mortgaged as aforesaid to satisfy the notes held by the complainants as assignees as aforesaid. The bill alleges that George Lake, Sr,, departed this life some time in the year 1868, intestate, leaving real and personal estate, which came to the hands of the defendants as his only, heirs at law, and which they refuse to apply to the payment of his debts ; that no administration has been taken upon his estate, and that the notes, to secure the payment of which the mortgage was given, remains wholly unpaid, and that the property mortgaged is insufficient to pay them. The bill prays a discovery from the defendants of what estate, real and personal, the said George Lake died seized and possessed of, and that the same, when discovered, may be sold and applied to the payment of the complainants’ debt; that an account be taken of the amount due them respectively, and that defendants be required to pay the same by a short day, and, in default thereof, that they be forever foreclosed and barred of and from all right [115] to redeem said mortgaged property, and that the same be sold to satisfy the amounts respectively found due the complainants. And the bill further prays, that an account may also be taken of the assets and estate, real and personal, of which the said Gfeorge Lake died seized and possessed, and also of the debts due to other creditors of said decedent, who may come in and contribute to this suit, and that said assets and estate, when discovered, be collected, sold and applied to the payment of any balance that may remain due the complainants after the sale of the mortgaged property, and to the payment and satisfaction of the debts due to the other creditors who may come in and contribute as aforesaid, and that a receiver may be appointed to take charge of the mortgaged property, and also to take charge of the assets and real and personal estate of the said deceased, when discovered, and to collect the debts, if any, due the decedent, and to collect the rents, issues and profits of said estate. Oh the 6th day of July, 1867, the complainants filed an amended and supplemental bill, in which they allege that the said Jonathan McCaleb, combining with the said George Lake, Sr., to cheat and defraud the creditors of the said Lake, did, without any consideration therefor, on the 24th day of March, 1851, by deed of that date, convey to said defendants, Matilda J. Lake, Alice Lake (now Alice' Smith) and George Lake, Jr., the property covered by . the said mortgage. The amended bill prays that said .deed may be declared fraudulent and void as to the creditors of the said George Lake, deceased. The defendants demurred to the amended bill, and the demurrer was sustained and the bill dismissed, and the complainants appealed to this court, and assign for error the action of the court below in sustaining the demurrer and dismissing the bill. The question presented by this record for our solution is, is the amended bill of the appellants multifarious? By multifariousness in a bill is meant the improperly joining in [116] one bill distinct and independent matters, and thereby confounding them. Wben tested by this rule, tbe bill in tbis case will be found to be multifarious. 1. It is a bill to foreclose a mortgage for tbe benefit of tbe complainants. 2. It is a creditor’s bill, seeking to bave tbe estate of tbeir deceased debtor administered and distributed in a court of equity. 3. It seeks, on tbe part of creditors at large, to set aside a conveyance of real estate, alleged to be fraudulent as to them. This can be done only by judgment creditors, for it is universally agreed that a creditor cannot go into a court of equity to subject equitable assets, or cboses in action not subject to be taken upon execution to tbe payment of bis debt, until be has obtained judgment at law upon bis debt, and issued execution, and bad a return of nulla bona. Farned v. Harris, 11 Smedes & Marsh. 366, and Brown v. the Bank of Mississippi, 31 Miss. 458; Vasser v. Henderson, 40 ib. 519. Under our judicial system, as it existed at tbe time wben tbis bill was filed, tbe probate court was tbe proper forum for tbe administration of tbe estates of decedents. It was clothed with ample powers, both in tbe extent of its jurisdiction and its mode of procedure for tbe accomplishment of tbe principal objects for which resort was some time bad to a court of equity in'England. Hence, it is said by high authority, that in tbis country courts of equity do not, ordinarily, interfere in tbe administration of estates, and wben they do so, it is in aid of tbe courts of probate, and for tbe accomplishment of some specific end not readily attainable in tbe courts of probate, after which the cause is remanded to tbe probate court with the decree of tbe court of equity, and becomes a part of tbe proceedings there. That tbe final settlement of tbe estate may remain in that court. 1 Story’s Eq. 544, § 543 a. As a creditors’ bill, no other creditors than tbe complainants could bave any interest in tbe foreclosure of tbe mortgage, and, therefore, tbe bill should not bave been expanded into a creditors’ bill. Tbe claims asserted in tbe [117] bill are of so different a character, that the court will not permit them to be litigated in one record. Nor is the bill more felicitous in its prayers. The original bill prays for a foreclosure of the mortgage and a sale of the property therein specified, to pay and satisfy the complainants’ respective claims, secured by the mortgage. The amended bill prays that the conveyance to the mortgagors of the property mortgaged be set aside as being fraudulent as to creditors. This, of course, would defeat the title of the mortgagors, and thereby sweep away the only ground upon which the appellants’ bill could be maintained as a foreclosure suit. Where a 'bill is multifarious, the court may take the objection at the hearing sua sponte, but the defendant can take the objection only by demurrer, and cannot make the objection at the hearing. Multifariousness is an objection to the frame and form of the bill, which, as we have seen, can be taken by the defendant only by demurrer. Demurrers are either general or special. They are general when no particular cause is assigned, except the usual formulary, that there is no equity in the bill. They are special when the particular defects or objections are pointed put. The former will be sufficient when the bill is defective in substance. The latter is indispensable where the objection is to the defects of the bill in point of form. The want of due form constitutes a just objection to the proceedings in every court of justice; for to reject all form would be destructive of the law as a science, and would introduce great uncertainty and perplexity in the administration of justice. The demurrer in this case was a general demurrer, which reaches defects in substance only, and not in form. And as the objection to the appellants’ bill was one which went to the form and structure of the bill, and which could only be raised by special demurrer, the court below erred in sustaining the demurrer and dismissing the bill. The decree is reversed, the demurrer overruled, and cause remanded, with leave to the appellants to amend their bill.