Murray v. King, 40 N.C. 223, 5 Ired. Eq. 223 (1848)

Aug. 1848 · Supreme Court of North Carolina

40 N.C. 223, 5 Ired. Eq. 223

MURRAY vs. KING & AL.

W.here a plaintiff has made a mistake in point of fact in his original bill, he may, by leave of the Court, correct that mistake, by an amended bilk But where the facts existed at the time the original bill was filed, and he discovers them afterwards, he cannot file a supplemental bill, but this will be dismissed on demurrer.

Whenever the same end may be obtained by an amendment, the Court will not permit a supplemental bill to be filed.

Appeal from an interlocutory order of the Court of Equity, for the County of Buncombe, at Spring Term, 1848, made pro forma, overruling a demurrer, his Honor Judge Battle presiding.

This is an appeal from an interlocutory order, overruling a demurrer to a supplemental bill.

The bill states, that in the original bill the plaintiff charged: That certain land belonging to him had been sold under execution and purchased by two of the defendants, Smith and McKesson, who agreed to relinquish their purchase to the plaintiff upon the payment of certain debts he owed them; and that, in order to raise the money for that purpose, he applied to Benjamin King', who agreed to advance for and to him the sum of $1050 as a loan ; and that it was further agreed by and between the plaintiff and said King and Smith and McKesson, that the latter should assign their bids for the land to King and that he should obtain the sheriff’s deed therefor, which waSs done : and that it was also agreed between the plaintiff and King, that the plaintiff should continue to occupy the land and pay to the said King, annually, therefor, the sum of $157 50 interest by way of rent, the said King stating that he had been advised that he could reserve any amount of rent, without violating the act against usury : That accordingly leases were executed between the parties upon those terms for the several years stated, and that at various times the plaintiff made several payments thereon, as specified: And that subsequently, the plaintiff’s interest in the land was again sold under execution and was purchased by one of the defendants, William S. Murray, a-son of the plaintiff, who purchased the same for and on behalf of the plaintiff: And that the plaintiff, his son William S., and King, at different times afterwards concurred in selling parts of the land to other persons, who- paid the price, or gave their bonds therefor to King, who received the same on account of his said demand against the plaintiff: And that then, in satisfaction of money by William S. Murray advanced for the plaintiff on his purchase before mentioned, a part of the land was laid off and conveyed to him ; and the residue was still occupied by the plaintiff paying, as required by King, a rent equal to 15 per cent, annually on the balance due on the loan of $1050 ; and that such balance, as demanded by King, was about $646 96, and that, in order to provide money to satisfy the same, a sale of part of the land was made by King and William S. Murray by the consent of the plaintiff to one Cunningham for that sum on a credit, and that Cunningham gave his bondfttherefor to King, who accepted the same, and agreed with the plaintiff that, upon the same being paid by Cunningham, he, King, would convey the residue of the land to the plaintiff: That King died intestate and the land descended to the defendants Samuel King and others, who were his children and heirs at law, and who recovered the premises in an action of ejectment against the plaintiff: That on the 10th of March, 1842, the debt of Cunningham was paid to the representatives (not named) of the intestate King : And that the same, and the sums of money received by King in his life time from the plaintiff and others, as before mentioned, amounted to $204S 33 ; which satisfied the whole sum lent as aforesaid with the lawful interest thereon, and left a considerable excess : And the bill prayed for a discovery of the several matters charged, and that the plaintiff should be declared entitled to a conveyance of the said residue of the land, and the defendants, the heirs of King be decreed to convey the same, and for an injunction against their taking any proceedings under the judgment at law.

The supplemental bill then further states, that upon the filing of the original bill, the plaintiff obtained the injunction therein prayed and that the defendants, the heirsofKing, appeared and put intheir answers to the bill, and that upon their answers and a motion to that effect, the injunction was dissolved upon the grounds, that the bill did • not distinctly state, that the contract between the plaintiff and King was usurious, and the answers denied that the contract was for a loan of money, and averred that it was for the absolute purchase of the land ; and also because the answers denied that William S. Murray purchased the interest or equity of redemption of the plaintiff in the premises (if he had any,) for and on behalf of the plaintiff, and averred that he purchased the same as the agent and with the money of the said King.

The bill by way of supplement then further states, that the said sum of $1050 was advanced by King to the plaintiff by way of lean, and that it was corruptly agreed between them at the time, that the plaintiff should annually pay to King at the rate of 15 per cent as interest for the forbearance thereof and that he should pay the same under the color and name of rent for the said land as a shift, and in order thereby to conceal the true nature of the said agreement, which the plaintiff avers was for a loan of the said sum of #1050, and not for the absolute purchase of the said land. The bill further states by way of supplement, that, before and at' the time of filing the original bill, the plaintiff was informed, that the sheriff had duly sold his equity of redemption in said land, when William S. Murray purchased as aforesaid; but that the plaintiff is since informed and believes, that the sheriff had no process, under which he had authority to make the sale, that nevertheless one Davidson and Cuningham bid off the land thereat, and that afterwards William S. Murray at the request of King and the plaintiff purchased from them, at the price of $400 which he paid out of his own means ; that no interest passed by the said sheriff’s sale, or was acquired by William S. Murray, but that, if otherwise, the said William S. purchased for the plaintiff’s benefit as aforesaid. The bill further states by way of supplement, that Elisha King and three others, who are named,, administered on the estate of the intestate Benjamin King, and that they received the money from Cunningham on his own bond for the price of the part of the land sold to him.

The bill prays a discovery of the several matters, and that the administrators may come to an account with the plaintiff for the said sum lent and the interest and payments thereon, and be forced to pay to the plaintiff the excess that may be found to have been received thereon .by King or his administrators above the principal and legal interest, and also for a conveyance from the heirs at law, and for a secoud injunction against the judgment in ejectment.

The injunction was granted by a judge out of Court as prayed for, and at the next term the defendants demurred, because the supplemental bill did not charge any new matter to have arisen since the original bill filed nor shew any reason, why the matters charged by way of supplement might not have been inserted in the original bid, or why the defendants, the administrators of King, might not have been made parties, by amendment.

On the argumeutof the demurrer it was overruled pro forma and the defendants by leave of the Court appealed.

J. W. Woodfin, Edney, and Francis for the plaintiff.

Baxter and N. W. Woodfin, for the defendants.

Ruffin, C. J.

As the expense is nearly doubled by having two suits instead of one, it seems manifestly proper, that, when, by an amendment, the plaintiff can put his whole case into his original bill, he should be required to do so, and not be at liberty to allege it by piece-meal in different bills, as he finds his case pinching. Lord Redesdale lays it down, that, whenever the same end may be obtained by amendment, the Court will not permit a supplemental bill to be filed. Mit. Pl. 60, 3rd Edition. In a subsequent passage, 164, he says if a supplemental bill be brought upon matter before the filing of the original bill, when the suit is in that stage of proceeding, that the bill may be amended, the defendants may demur ; and, though an authority is seldom necessary to him beyond his own, he cites in support of the position the case of Baldwin v. Mackon, 3 Atk. 817, in which Lord Hordwicke, made a decision on the point. The same principle has been fully recognized by succeeding chancellors. Milner v. Harewood, 17 Ves. 144. Knight v. Matthews, 1 Mod. Rep. 569. In the present case, there is not a single new fact brought forward in the supplemental bill, excepting only the proceedings had in the original suit, which are brought forward merely to let it be seen, that the plaintiff had lost the protection of the injunction, and, thereby lay a ground to ask for the renewal of it. It is true, the supplemental bill charges that the original bill states untruly, that the plaintiff’s equity of redemption had been sold by the sheriff and became vested in William S. Murray in trust for the plaintiff, whereas he now says, that in truth the sheriff had no process against his property, and that the sale was therefore void: and this he charges to have cometo his knowledge since the orig > inal bill filed. But that is not material since the fact, whatever it be existed when the first bill was filed, and the knowledge of it, as the plaintiff now says it really is, was acquired by him at a time when, according to the course of the Ccurt, the case was open to amendment being before there was even replication to the answers. And it was peculiarly proper in this case, that the facts stated in the supplemental bill, to meet the grounds on which the Court dissolved the injunction, should have been inserted in the original bill by way of amendment, instead of being the subject of a distinct bill, because they are not merely in addition to those alleged in the original bill, but in contradiction of them. For, to make out a case of usury, the latter bill has to state the contract differently from the former, by distinctly charging, that the agreement was a corrupt one for usurious interest on a loan, and that the loans and reservation of rent were merely colourable, and, especially, it states that the allegations in the bill respecting the second sheriff’s sale were founded on mistake and are wholly untrue. Now, as a supplemental bill is, in its nature, merely in addition to the original bill, and, when it is not for further discovery merely, the cause is heard upon both bills together, Mit. Pl. 33, and 69, it is obvious, that there would be an absurdity in a plaintiff’s asking, and in.the Court’s giving relief upon such inconsistent allegations — all remaining together in the pleadings. But it would be easy to in* troduce the truth, or the statement, by which the plaintiff would be willing to abide as the truth, into the case by way of amendment, because the amendment would begin by striking out what had been incorrectly stated and inserting in lieu thereof allegations of the opposite tenor.

Upon the whole, then, the Court holds that the demurrer ought to have been sustained and the bill dismissed with costs, because, framed as it is, there are material and direct contradictions upon its face, and we do not see how the plaintiff could get a decree upon the two bills ; and, if that were not so, because the new parties might have been made and all the facts introduced by amendments to the original bill. This will be certified to the Court of Equity, and the plaintiff must pay the costs in this Court.

Pe,r Curiam.

Ordered accordingly.