Dickson v. Poindexter

1 Free. Ch. 721

• Court: Mississippi Chancery Courts
• Decided: July 1, 1844
• Status: Published

Opinion

The Chancellor.

The original bill shows that Jacob Womack, as administrator of James C. Dickson, sold to Wiley Davis a number of negro slaves, as the property of his intestate, Dickson, and took therefor the note of said Davis, with sureties; that Womack afterwards transferred the note to the defendant Poindexter, in payment for a number of slaves bought of Poindekter, who took a deed of trust on the negroes, to secure payment. 'Womack died, and the complainant Miller became the. administrator de bonis non on the estate of Dickson.

The bill prays for a decree against Poindexter, either for the slaves, in possession of Womack’s administrators, (Taylor and wife,) or the note so transferred to him.

A supplemental bill was afterwards filed, stating the death of Wiley Davis, and charging that Poindexter had failed to present the note aforesaid to Davis’s administrators, within the eighteen months prescribed by the statute, whereby they allege that the same is discharged, and Davis’s estate and the sureties on the note wholly released; and prays that Poindexter may, as a consequence, be held Jiable to the estate of Dickson for the amount of the note.

A second supplemental bill is filed, by which the defendants, .Mary J. Davis, David Davis, Helm, Gwin, and Hefner, are brought before the court as purchasers, from the estate of Wiley Davis, of the negroes bought by him, in his life time, from the estate of Dickson; and prays that the statutory mortgage, given upon property sold by administrators, may be enforced against the negro slaves in the hands of said defendants. These defendants have demurred to the last supplemental bill, by which they are made parties, ‘and upon that demurrer the case was submitted for hearing.

The first objection to the supplemental bill demurred to, which struck me upon reading the papers, is the fact that it set up new substantive and distinct matter, having no connection with the original bill, and upon which a separate and distinct decree not only may be, but must be madé, without reference 'to either the parties or the matter of the original bill. This would be giving a latitude to the character of amendments and supplements unknown to the principles of pleading. The office of an amended or supplemental bill is to cure some defect, or to amplify the grounds taken by the original bill; and, whether the object be to make new parties or to introduce new matter, the connection between the new matter or the new parties with the matter of the original bill, must be a necessary and apparent connection. But in this supplemental bill there is a new and substantive cause of action, Upon which a decree not only could, but must, necessarily, be had, without reference to the original bill.

The complainant seeks to go, not only upon entirely new ground from that taken by the original bill, but against new parties, having no privity of interest, in relation to the matter of the original bill, with the defendants to that bill, which would change the whole character of the litigation.

This is not a case with double aspect as to relief, which a party may file, and, although he may pray in the alternative, yet the relief asked under both prayers must have relation to the same subject matter. This view of the case is fully sustained by the cases of Loyd v. Brewster, 4 Paige, 537; and Milner v. Milner, 2 Edward’s Ch. Rep.

' It is insisted, by the counsel for the demurrer, that, inasmuch as it is alleged by the bill that the estate of Davis is discharged from the statutory mortgage, by reason of the alleged non presentation of the claim, the defendants, as the purchasers of the subject of that mortgage, must also be discharged. Without determining whether this statutory mortgage is matter of which the administrators of the statutory mortgager are bound to take notice, or whether it was that description of claim to which the special statute of limitations applies, it is sufficient to remark, that the bill does not state that publication of notice was made by the administrators, without which, it is clear, the estate of Davis could not be exonerated.

The demurrer must be sustained, and the bill dismissed as to the defendants, Mary J. Davis, David Davis, Helm, Gwin and Hefner.