Allen v. Miller, 57 N.C. 146, 4 Jones Eq. 146 (1858)

Aug. 1858 · Supreme Court of North Carolina

57 N.C. 146, 4 Jones Eq. 146

WILLIAM W. ALLEN and others, against ALFRED O. MILLER and others.

A bill by the next of kin, setting forth a claim against one defendant as administrator of the estate for an account of the assets, and for a settlement and a claim as heirs at law, setting forth afraudulent purchase of the real estate of their ancestor, at an execution sale, and some of them setting forth the same claim as sureties who paid money for the deceased, and also setting forth the widow’s claim for dower in the lands thus fraudulently held by the purchaser, is multifarious.

Cause removed from the Court of Equity of Watauga.

The bill is filed in the name of William W. Allen, Cyrus E. Campbell, and his wife Martha, James L. Allen, Harvey W. Allen, Cyrus W. Allen, the children and heirs at law of C. A.' Allen, and by Clarissa Allen, his widow; and charges that the defendant, John S. Davis, is the administrator of the estate, and that assets to a considerable amount came, or ought to have come, to his hands more than sufficient to pay the debts of the estate, and praying for an account and settlement of the same. That, since the death of tire said intestate, a certain tract, called the the home tract, belonging to the intestate was sold by the sheriff, und^r an execution, which was in his hands at the death of the said intestate, and bought by the defend, ant, Alfred O. Miller, who interfered at the sale, and fraudulently and falsely represented that the intestate had no title to the premises, and represented that he wished to bid off the land for the benefit of the plaintiffs, or of the estate of C. Á. Allen; that by these representations, he prevented persons from bidding for the land, and was thus enabled to buy it for a very inconsiderable sum, far below its real value; that since the sale, the said Miller has taken possession of the tract of land, and is claiming it as his own, and utterly denies any claim or equitable interest of the plaintiffs in the same. In the same bill it is alleged that a tract of land, belonging to the plaintiff, Win. Allen, and which had never belonged to 0. A. Allen, and was not levied on or sold by the sheriff, was nevertheless included in the deed from the sheriff to A. O Miller, and that its value is greatly injured by this false claim. It also alleges that the plaintiffs, William W. Allen, James H. Allén and Harvey W. Allen, were compelled to pay large sums of money for the deceased, 0. A. Allen, which has not been refunded to them by the defendant Davis, the administrator; that he lias neglected to collect the personal assets, and wholly neglects to have the real estate sold and the money collected for the payment of the said plaintiffs debts, to the great prejudice of these plaintiffs as creditors, and as heirs at law and distributees.

In the same bill, the plaintiff Clarissa, the widow of C. A. Allen, sets forth her claim for dower in the land, thus fraudulently held by the said Miller.

The bill prays that the defendant Davis account for his administration, and that Miller may be compelled to convey the land conveyed to him by virtue of the sale, and that the widow shall have her dower in the premises; that the funds thus sought, may in the first place, be applied to the payment of the debts of the creditor plaintiffs, and the remainder of it, if any, be distributed among the plaintiffs as next of kin.

The defendants demurred to this bill on account of its multifariousness. There was a joinder in demurrer, and the cause being set down for argument, was sent to this Court.

Lenoir, for the plaintiffs.

Mitchell, for the defendants.

Battle, J.

Mnltifariousness in a bill is when a plaintiff combines distinct claims against the same defendant^ or where he unites in the same suit, several defendants, some of whom are unconnected with a great portion of the case. Adams’ Eq. 309. It may also arise from a misjoining of plaintiffs, whose causes of action are not sufficiently connected to admit of their being united in the same suit. According to these principles, the bill before us is multifarious in several particulars, of which it is necessary for us to notice one or two only, as upon them the demurrer must be sustained. The defendant Miller is alleged to have purchaseed the home tract of land at a sheriff’s sale under an execution against C. A. Allen, deceased, from whom the plaintiffs claim, and that by fraud and misrepresentation, he succeeded in purchasing it for a very inadequate price, under the pretense that he was buying for the benefit of the plaintiffs. If this allegation be true, the equity of the plaintiffs consists in the right to have him converted into a trustee for them, upon their re-paying him the purchase money. This claim is certainly distinct from that which the plaintiffs can have, either as creditors or next of kin of C. A. Allen, to call upon the defendant Davis, as his administrator, for an account and settlement of the estate. These two claims are founded upon equities of a very different character, and have no connection with each other, and therefore, ought not to have been joined in the same suit. It is not pretended that the sheriff did not have authority to sell the land under the executions in his hands, and upon its purchase by the defendant Miller, it ceased to be assets of the estate, and the claim which the plaintiffs may have to it is founded solely upon their allegation that it was purchased for them by Miller, and that he, in fraud of their rights, took the title to himself.

The claim of the plaintiff, Clarissa Allen, for her dower in the home and other tracts, of which her husband died seized, is distinct from that of the other plaintiffs against the defendant Miller. As against him, she is entitled to dower, whether he purchased fraudulently, or otherwise, because the sale was made after the death of her husband. Frost v. Etheridge, 1 Dev. Rep. 30. This certainly is a distinct claim from that of the other plaintiffs, and is not sufficiently connected with theirs to admit of their being united in the same suit.

The demurrer must be sustained, and the bill dismissed with costs.

Per Curiam. Decree accordingly.