Gilchrist v. Gilchrist, 21 N.C. 362, 1 Dev. & Bat. Eq. 362 (1836)

June 1836 · Supreme Court of North Carolina

21 N.C. 362, 1 Dev. & Bat. Eq. 362

GILBERT GILCHRIST v. DANIEL GILCHRIST, et al.

One against whom a decree h.as passed, cannot sustain a bill praying relief, inconsistent with that decree, by mailing another party, and charging a subsequent interest in him. The proper course is to file a bill of review as to the original parties, charging supplementally the interest of the new defen. dant.

This was an original bill filed 28th June, 1834, against Flora Buie, Archibald Gilchrist and his wife Mary, against Duncan Buie and Malcolm Buie, administrators of Daniel Buie, deceased, and against Daniel Gilchrist, and charges the same matter which is charged in the original bill, filed by the same complainant, on 21st June, 1827, against Flora Buie and A. Gilchrist and wife, on the decree in which he brought his bill of review on the 20th May, 1834, which has been decided at the present term. The only differences between the bills are, that the present seeks no relief in respect of the plaintiff’s bonds that were made payable to Daniel Buie, and by his administrators assigned to his widow Flora, and makes those administrators parties; and charges further, that the bonds which were made payable to Archibald Gilchrist have been assigned to the defendant, Daniel Gilchrist, deceased, that he has recovered judgments on them; and the prayer is, as before, for conveyances with general warranty for one-half of the four hundred and fifty acres, the old plantation, or that the contract may be rescinded for want of title in the vendors; and in the mean time, for injunefions against the judgments obtained by Daniel the assignee.

The defendants, by plea or answers, severally rely on the decree in the former suit, which was made in October, 1832, as a bar, and the bill was thereupon dismissed in the court below, by Strange, Judge, at Roberson, on the last Fall Circuit, and the plaintiff appealed to this court.

June, 1836.

Badger, for the plaintiff.

Devereux, contra.

Ruffin, C. J.,

after stating the case as above proceeded: —The introduction of the new matter does not set the party at large from the former decree; which is a bar in respect of all parties to it, and those claiming' under them. No relief can be given to the plaintiff in this suit, which would not be inconsistent with the decree of 1832, and" therefore, while that remains in force, the plaintiff cannot proceed at all. The proper method of bringing in a person who was not a party to the original suit, and has become interested in the subject, is to file a bill in review, or one in the nature of a bill in review, against the original parties, and charge therein, by way of supplement, any event which has since occurred, or which created the interest of the new party : and to pray that the former decree may be reversed; and that the cause may be heard with respect to the new matter and parties, made by the supplemental part of the bill, at the same time that it is reheard upon the original bill, and that the plaintiff may have such relief on the supplemental case as it may entitle him to. Lord Redesdale thus lays it down in his treatise 89-92; and in Perry v. Philips, 17 Ves. 173, Lord Eldon recognises and approves of that passage, as at once providing a method for correcting decrees and adjusting all rights of other persons in the subject, without the necessity of making one decree in conflict with > another. The matter in this bill might have been inserted. in the bill of review, which was filed in May, 1834, but an attempt to set aside a decree collaterally, by an original bill, which does not mention the first suit, but seeks a decree inconsistent with the former, cannot be suffered. Wirtley v. Biskhead, 3 Atk. 811. Ogilvie v. Herne, 13 Ves. 564.

The decree of the Court of Equity is therefore affirmed, with costs in this court.

PeR Curiam. Decree affirmed.