Swift vs. Eckford, executrix, &c. and others, 6 Paige Ch. 22

The Chancellor. The objection that the corporation of the Life and Fire Insurance Company should have been made a party to this bill, appears to be well taken. The receivers of the property and effects of the company, appointed upon the granting of the injunction immediately after the •failure of the company as described in the bill in this"case, are not the legal representatives of the rights of the corporation upon a bill to redeem the lands mortgaged for the use of the company. The receivers are proper parties, but the corporation itself should also have been a party.

It is a fact, although it is not so stated in this bill and therefore it cannot avail the complainant on this demurrer, that the same persons who were appointed receivers, at the suit of a creditor, shortly after the failure of the company, have since been appointed receivers, on the petition of the Attorney General, under the provisions of the revised statutes relative to proceedings against insolvent corporations ; according to which provisions, the title to the property of the corporation is actually vested in the receivers, so that they may prosecute for it in their own names.

I am also under the impression that a decree has been made upon that petition, dissolving the corporation. It would, therefore, be a matter of course, if this were the only objection, to permit the complainant to amend his bill in this respect upon the payment of the costs of the demurrers, by making the corporation a party or stating the proper facts to show that the company was no longer in existence, and that the defend-", ants Hoffman and Lawrence fully represent the rights of all persons who are interested in the concerns of the late corporation.

There is, however, another and more fatal objection in this case, which cannot be remedied by amendment, as this is a sworn bill. The objection on account of multifariousness appears to be well taken. It is evident, from the whole tenor of this bill, that the complainant assumed the debt to the company, and expected that Eckford would settle with, him and pay whatever had been expended for his benefit by the complainant as his agent.

The claim, therefore, which is set up in the bill for an account and payment by the representatives of Eckford of whatever may be found due upon the private dealings between Eckford and him, has nothing to do with the redemption of the land which is mortgaged for his debt to the company.

This claim, therefore; in which neither the receivers, nor the defendant DeKay as the holder of the legal estate in the premises mortgaged, had any interest, ought not-to have been joined in the same suit with the claim for the redemption of the mortgaged premises and an account against DeKay for the rents and profits of those premises.

If the mortgage had been given by the complainant to the company to secure a debt admitted to be due from Eckford to the company, and whichhe had promised topay and discharge so asto relieve the complainant’s land from the lien of such debt, there would have been some reason for joining the representatives in the same suit, so that they might be bound by the account to be taken of what was due on the mortgage, and might be decreed to pay the balance found due, and thus to relieve the complainant’s land.

But from the complainant’s own showing, he has always since the liquidation of his debt with the company, in 1826, considered himself as the person who was liable for the payment of the debt to the company, and that he had a personal claim against Eckford, for the monies advanced for him, in the purchase and carrying on of the National Advocate ; he has accordingly called upon Eckford, from time to time, to pay that balance to himself.

His proper remedy, therefore, for the recovery of what is due to him on that account, is by a separate bill against the personal representatives of Eckford, or by a suit at law against them for monies paid laid out and expended for the use of their testator. The misjoinder, of this claim against the representatives of Eckford alone, with the claim to redeem the land, in which the other parties are interested, renders the bill multifarious, even if the executors were proper parties to the bill for the redemption of the land which had been once in the hands of their testator as the agent or officer of the company.

If a joint claim, against two or more defendants is improperly joined in the same bill with a separate claim against one of those defendants only,in which the other defendants have no interest and which is wholly unconnected with the claim against them, all or either of the defendants may demur to the whole bill for multifariousness. (Ward v. The Duke of Northumberland and the Earl of Beverly, 2 Anst. Rep. 469. Gibbs v. Claggett, 2 Gill and Johnson, 29, Boyd & Suydam v.

Hoyt & Parsel, 5 Paige’s Rep. 65.) Neither can I see any good reason, in this case, for making the personal representatives of Eckford parties to the bill for the redemption of this mortgage, as to which they do not appear to have any interest. It is not alleged in the bill that Eckford has violated any trust, for which he is liable to the complainant, by conveying the mortgaged premises to DeKay •, or that he conveyed the land to a bona fide holder without notice, who would, in that case, have the right to hold it as an absolute estate.

On the contrary, it is alleged in the bill that, the land was conveyed to Eckford as the president of the company ; and that it was the practice of the corporation to take securities, by way of mortgage, by absolute conveyances to some of its officers. The complainant also alleges that Eckford immediately conveyed the land to DeKay, who was also a director of the company, and knew that the deed was taken merely as a security for the debt thus due to the company.

If this allegation in the bill is correct, neither Eckford nor DeKay were accountable for the rents and profits of the land to the complainant; but they were the agents of the company, and DeKay must account to the receivers for the rents and profits received for their use, to be applied in payment of the principal or interest of the complainant’s debt secured by the mortgage. And as no rents or profits were or could have been received by Ecltford who conveyed immediately, according to the allegations in the bill, his personal representatives could not be proper or necessary parties to the bill to redeem.

It is not a matter of course to permit a bill to be amended after the allowance of a demurrer for multifariousness; as the multifarious matter is generally such that it cannot be separated from the residue of the bill. And in this case, as the bill is sworn to, it is contrary to the practice of the court to permit it to be altered by striking out; as such an amendment to a sworn bill is not allowable except under very special circumstances.

The demurrers must therefore be allowed ; and the bill must be dismissed with costs, as to the parties who have demurred, but without prejudice to the future rights of the complainant in a new suit or suits against the proper parties.