K. J. Love et al. v. T. A. Keowne et al., 58 Tex. 191

Bonner, Associate Justice. The third error assigned in this case is, “ that the court erred in dismissing said suit and rendering judgment that the plaintiffs take nothing by their said suit, and that the defendant go hence without day,” etc. There can be but little doubt but that this assigned error is well taken as to the defendant T. A. Keowne. The petition set forth a good cause of action against her, and to that extent, at least, it should have been entertained. For this érror the judgment must be reversed. The first and second assigned errors will be considered together, and are as follows: “ 1.

The court erred in sustaining the pleas in abatement of the defendant setting up a misjoinder of parties defendant and causes of action.” “ 2. The court erred in sustaining the exceptions of the defendant as to a misjoinder of causes of action and parties defendant.” These present the principal question in the case. It appears that the second bond was not given as an additional one upon the motion of the chief justice of the county court or of any party interested in the estate under articles 1290-1, Paschal’s Digest, because the first bond was insufficient, but was given as a new bond under

article 1292, which provides that when such new bond is given and approved, the former sureties shall be discharged from all liability for the future acts of the administrator. Under the view we take of- the case, it does not become necessary to decide how far, had this been simply an action at law, and in a court restricted to common law jurisdiction, the pleas in abatement and the demurrers should have been sustained.

In our opinion, to the extent that the suit sought for an account and discovery of the matters of the administration, the papers having been lost, and the facts lying peculiarly within the knowledge of the administrator; and as to the sureties to the second bond, to the extent that it sought to trace into their possession and make them account therefor, certain railroad securities, which it is alleged were, during the time of the first bond, bought by one of the administrators in connection with them, with the funds of the estate, and which securities came into their hands with a knowledge of their trust character, it so far partook of a proceeding in equity as to give the court jurisdiction of it as such.

For a long time, at least since near the close of the reign of Charles II, courts of equity have exercised jurisdiction in cases of the administration of estates.

Judge Story, in his learned commentary upon Equity Jurisprudence, says that one ground of this jurisdiction is founded on the principle that it is the duty of the court to enforce the execution of trusts; and that the executor or administrator who has the property in his hands is bound to apply it to the payment of the debts and legacies, and to apply the surplus according to the will of the testator, or, in case of intestacy, according to the statute of distributions. 1 Story’s Eq. Jur., § 532.

In this connection he says that trusts are enforced not only against those persons who are rightfully possessed of the property as trustees, but also against all persons who come into the possession of the same with notice of the trust. Id., 533. He further says that other auxiliary grounds also exist, such as the necessity of taking accounts and compelling a discovery, and the consideration that the remedy at law, where it exists, is not plain, adequate and complete.

The jurisdiction, therefore, now assumed by courts of equity to so wide an extent over all administrations and the settlement of estates in cases of testacy and intestacy, is not (as it would seem) exclusively referable to the mere existence of a constructive trust (which is often sufficiently remediable at law), but is referable to the mixed considerations already adverted to, each ’ of which has a large operation in equity.

Also, that in many, cases besides those directly mentioned, it is impossible for any other than a court of equity to administer full and satisfactory justice among ail the parties in interest. Id., 534 and 543. Under several of our decisions it has been held that in certain cases our district courts had, in matters pertaining to estates of deceased persons, the jurisdiction of a court of chancery in England. Smith v. Smith, 11 Tex., 102. In Rodgers v. Kennard, 54 Tex., 30, many of these cases are collected and reviewed.

In tracing out this ground of equity jurisdiction, Judge Story says that the objection that the spiritual courts had full authority under the English statute of distribution to decree a distribution of the residue, and hence that a court of equity could not exercise the jurisdiction, was held not good on demurrer, there being no negative words in the act of parliament which would take away such jurisdiction. Citing Matthews v. Newby, 1 Vern., 133, and other authorities. 1 Story’s Eq. Jur., § 542. To the same effect is Gould v.

Hays, 19 Ala., 438, and other authorities cited in note 1, top p. 566, Adams’ Equity (3d Am. ed.). Although a bill of discovery, technically so called and known in equity practice, is not known to our practice, yet we have a statute which is intended «to answer the same purpose. That statute authorizes a party to a suit to make a witness of the opposite party, or to propound interrogatories to such party, and which, if not answered, shall be taken as confessed. R. S., arts. 2239-2244; id., arts. 2216, 3748-3754. In Cronin v.

Gay, 20 Tex., 460, it is decided that the statute prescribes this mode of discovery as auxiliary to a regular suit, but not as an independent remedy disconnected from such suit. It has also been decided that executors and administrators are within the meaning of the statute (Blackman v. Green, 17 Tex., 327); and that a*) plaintiff may propound interrogatories to one of several defendants, and the answers of such defendant may be read in evidence against his co-defendant, the required notice having been given. McGown v. Randolph, 26 Tex., 496.

One of the objects sought in this case was a discovery, which it seems must have been very material under the embarrassments thrown around the case. These, to a considerable extent, seem, under the allegations, to have been the fault of the administrator. It is alleged that, by the failure to make proper accounts, the plaintiffs were unable to ascertain the respective liabilities of the two sets of sureties.' For this the administrator and the sureties, rather than the plaintiffs, should beheld chargeable.

Under our decisions it was not incumbent on the plaintiffs to have first compelled the administrator to have made final statement of the administration account before suit on the bond, and by which suit all parties before the court would be bound. Ponton v. Bellows, 22 Tex., 681; Francis v. Northcote, 6 Tex., 185. The jurisdiction of the court below was one of blended law and equity, and the policy of our law has ever been to avoid a multiplicity of suits.

If separate suits had been brought and a discovery sought in each, the proceedings, evidence and judgment in the one would not have been binding upon the sureties in the other, and between the two, the plaintiffs may have failed to obtain the relief, if any, to which they may be entitled. In the suit as brought, all the parties in interest were before the court.

The general subject matter and object sought were the same; the plaintiffs claimed relief in the same general right, and the proceedings and decrees could have been adjusted to the respective rights and interests of all the parties to the suit, and would have been binding upon them. It has been found- impracticable to lay down any positive general rule as to what will or will not constitute multifariousness, but the courts have wisely left the question as one of convenience, to be decided according to the peculiar circumstances of the case. As said by McLean, J., in Gaines v. Chew, 2 How. (U.

S.), 619: “ Every case must be governed by its own circumstances, and as they are as diversified as the names of the parties, the court must exercise a sound discretion on the subject.” It is said in the notes to the leading case of Fellows v. Fellows, 4 Cowen, 682, in 15 Am. Decisions, 428, that perhaps the best general rule that can be laid down is that stated by Wilde, J., in Dimmock v.

Bixby, 20 Pick., 377, that the objection of multifariousness does not hold “where one general right is claimed by the plaintiffs, although the defendants may have separate and distinct rights.” There are numerous authorities to the effect that, “ to render a bill multifarious, it must contain not only separate and distinct matters, but such that each entitles the complainant to separate equitable relief.

It is not so if it be single as to the subject matter and object thereof, and the relief sought, if all the defendants are connected, though differently, with the whole subject of dispute.” Mote 2, top p. 694, Adams’ Equity (3d Am. ed.), and notes to Fellows v. Fellows, 15 Am. Decisions, 427, both citing numerous authorities. Morris v. Ashley, Dal., 619; Dobbin v. Bryan, 5 Tex., 276; Clegg v. Varnell, 18 Tex., 294. James Turner, John T. Pierce and L. Aubrey, on motion for rehearing. I.

That there was a misjoinder of parties defendant, in this, that your petitioners are joined with other persons with whom they have no interest in common, with whom they are not jointly liable, and Avhose interest in the subject matter is conflicting with that of your petitioners. Clegg v. Varnell, 18 Tex., 301; Frost v. Frost, 45 Tex., 340, 341; Johnson v. Davis, 7 Tex., 174; 18 Vesey, 79; 1 Chitty’s Pleading, title “ Misjoinder.” II.

The proper and necessary defense of said action by your petitioners makes it to the interest of your petitioners to antagonize the sureties of the second bond, their co-defendants, and to shoAv, if they can, that any default or conversion, if such there Avas, Avas not while your petitioners were sureties, but after their discharge; and the sureties on the second bond would be equally interested in proving the conversion to have taken place'under the first bond, while the plaintiffs could stand by and take advantage of this conflict betAveen the defendants. Dilly v. Dorly," 2 Ves. Jr., 486; Bouv.

Law Dic., title “Misjoinder;” Ellicott v. Welch, 2 Md. Ch., 242. III. There can be no common judgment, and the two sets of defendants are not liable under a common undertaking; the bond under which your petitioners are charged having expired before that under which their co-defendants are charged came into existence. Whelen v. Watmough, 15 S. & R., 158; Pasch. Dig., vol. 1, 1292. IV. The objection was a misjoinder of parties defendant as well as that there was a misjoinder of actions, and your honors seem to haAe come to the conclusion that the latter objection Avas the only one made.

The petition was multifarious because two distinct actions were embraced, and there was a misjoinder of defendants for the reason above stated. DeGress v. Hubbard et al., Tex. Law Jour., June, 1881, Watts, J.; Clegg v. Varnell, 18 Tex., 301; Frost v. Frost, 45 Tex., 340, 341; Johnson v. Davis, 7 Tex., 174; Chitty’s Pleading, title “ Misjoinder.” In our opinion, the first and second assigned errors are also Avell taken. For the errors above indicated, the judgment below is reversed and the cause remanded. Beversed and remanded. [Opinion delivered October 27, 1882.]