Dewberry v. Shannon

59 Ga. 311

• Court: Supreme Court of Georgia
• Decided: August 15, 1877
• Status: Published

Opinion

Jackson, Judge.

This was a bill brought by Dewberry against Mrs. Shan-non, and her son and son-in-law as her agents, alleging that as executrix of her husband, John Shannon, deceased, she was wrongfully enforcing a judgment upon certain lands to which Dewberry claimed title, or a superior equitable lien. Subsequently, MeMielde and Rufus II. Watson, and the members of his family, consisting of wife and children, were made parties defendants to the bill. On the hearing, these last named parties were ruled to be improper parties on demurrer, and the bill was dismissed as to them, and complainant excepted. The case then went to trial against Mrs. Shannon and her agents, and the jury, under charge of the court, returned a verdict for the defendants. The complainant moved for a new trial on the grounds that the court erred in dismissing the bill as to Watson and family and MeMielde, and because the verdict was against the law, the charge of the court, and the evidence. The court overruled the motion on all the grounds, and complainant brings the case here for our review.

1. Was the court right in dismissing the bill as to MeMiclde et al. for multifariousness ? To test that question, it is necessary to examine the bill as it stood against Mrs.' Shannon in its statements and prayers, and then to see how and wherein MeMielde and the Watsons were concerned in the litigation between them. If complainant had a good bill, with a right to recover, against Mrs. Shannon, and the joining of the others as parties defendants, and the prayer of relief against them was not ancillary to their main line of attack, but Vas to be resorted to only in the event of certain contingencies, which contradicted flatly their case as made against Mrs. Shannon, and thus their bill became inconsistent with itself, it is multifarious, and the court was right so to pronounce it, though the courts do not, as a general rule, favor demurrers for multifariousness. The bill alleges that R. G. Watson owed complainant on an ante-bellum debt, on which complainant obtained judgment in 1870, which was finally compromised by complainant’s taking his deed and giving him bond for titles on the payment of purchase money bade; that John Shannon, the testator of Mrs. Shannon, executrix, had obtained a judgment against said R. G. Watson as security for R. H. Watson, who was the principal-defendant in the judgment, and had neglected, he and his said executrix, to pursue certain funds of the principal into the bankrupt court, and had omitted to make the money out of said principal when he could have done so in various ways, and had finally compromised the claim with the principal without the knowledge and consent of the surety, and prayed that the judgment be enjoined from proceeding against this land which he had so bought, and that it be satisfied so far as the surety, R. G. Watson, was concerned. Dewberry brought ejectment against R. G. Watson and wife, who joined in the deed to Dewberry for the land, equitable defenses were filed, and the jury found a verdict for Dewberry for money to be levied of the land, and the balance it brought to go to R. G. Watson. In the meantime, R. G; Watson had gone into bankruptcy, and claimed homestead,etc., all of which was settled in the ejectment decree. It also appeared in evidence that the Shannon debt and judgment were both older than the Dewberry debt and judgment.

That part of the bill which brought in McMickle and. R. H. Watson and family, was to the effect that McMickle had loaned R. IT. Watson some $800.00 in money, and took a mortgage on a very valuable plantation to secure it; that, to defraud R. IT. Watson’s creditors, this mortgage was made older, and increased to secure $8,000 -instead of $800, and was foreclosed and the land bought in by McMickle, and afterwards deeded back as a gift to Watson’s wife and children, and the prayer was to force Shannon’s judgment upon these lands and certain personalty covered up by this fraud of McMickle and the R. H. Watson family, because their judgment covered this property, really R. H. Watson’s, as well as R. G. Watson’s property, to-wit: Dewberry’s land; or the land on which his judgment had a ljen.

It seems clear, from this brief analysis of the bill of complainant, that tbe part which brought in McMickle and the R. H. Watsons, is wholly distinct and variant from that which sets up the discharge of R. G. Watson as surety — so much so that if, as complainant alleged, the surety was relieved by the compromise, or the Shannon judgment paid off as to R. G. Watson, there would he no need to go upon and set aside the McMickle and R. II. Watson fraud.

The two prayers being inconsistent, and the facts sworn to on complainant’s first line rendering the latter unnecessary, at most, barely useful, on a contingency which could not occur if Dewberry swore tbe truth in the first part of his bill, we think that the court did not err in dismissing the bill as to McMickle & Co. 2 Kelly, 419; 12 Ga., 61; Story’s Eq. Pl’d’gs, 271, 280, 530 (2), 541, a, c; Adam’s Eq., 310; Cooper’s Eq. Pl’d’gs, 182.

2. The evidence was conflicting about the assent and knowledge of tbe security, R. G. Watson, to the contract between Shannon and R. II. Watson, and as there is no exception to the charge of the court, and the charge put the issue fairly on that point, we cannot see that the verdict is against the charge of the court or the law of the case; and it is supported by sufficient evidence.

Judgment affirmed.