Martin Pleasants & Co. v. Glasscock

1 S. & M. 17

• Court: Mississippi Chancery Courts
• Decided: December 15, 1843
• Status: Published

Opinion

By the Chancellor.

Wm. H. Glasscock, in his lifetime, conveyed all his property, both real, personal, and mixed, in trust, to secure and pay different specified creditors, in a given order of preference, and then to pay his creditors generally, without naming them. Among the preferred creditors was'tbe estate of C. B. Hudson, deeased. Glasscock had intermarried with Hudson’s widow, who was the executrix of the estate, and his indebtedness arose out of his relation of executor. It is alleged, that by a fraudulent agreement between the trustee in the deed of trust, and Mrs. Glasscock, the whole trust property, situate in Missisippi, was relinquished to her, in satisfaction of the debt alleged to be due said estate ; and it is charged that nothing was, in truth and in fact, due said estate at the date of said relinquishment, and that the property wás of much greater value than the debt claimed to be due. It is also alleged that there is no administration upon the estate of Glasscock, and that Mrs. Glasscock has all his property in her hands. Upon these leading facts, the complainants, claiming as creditors under the deed of trust made by Glasscock, pray specifically for a decree, for the amount of their debt against Mrs. Glasscock, and generally, for other and further relief. The case was submitted on the demurrer of Mrs. Glasscock, in which is assigned different causes of demurrer, extending mostly to the merits of the bill. Among other grounds taken, is, that the bill is multifarious as to the matters therein stated. Whether it was intended to charge the defendant directly with the payment of the complainants’ claim upon one or both, the state of different facts set out in the bill, is not easily determined from the bill itself. She is first charged with receiving a portion of the trust fund set apart by the debtor of the complainants, for the satisfaction of their claim. She is then charged with having received, and being in the possession of, other property of said debtor. And upon this ground, I infer, it is sought to charge her with the complainants’ debt. In relation to this latter ground, I take it to be clear, that there is nothing in the state of facts thus set forth which authorizes the interposition of a court of equity. A mere general creditor, holding a purely legal claim, against the estate of a deceased person, cannot come here for the satisfaction of that claim against one who has intermeddled with, and possessed himself of, that estate. In such case, the creditor has a plain,-adequate, and unembarrassed remedy at law. It is true that a creditor may, upon a mere legal claim, come here for a discovery and account of assets against an executor or administrator. But this suit is not against the defendant in either of those characters. If the object of the bill was to charge her as executrix de son tort, she should, according to the practice upon that subject, have been sued as a regular executrix. It is clear, therefore, that the only ground stated in the bill, which gives jurisdiction to the Court, is that which charges that Mrs. Glasscock has, by a fraudulent arrangement with the trustee, obtained a portion of the trust fund, assigned, in part, for the satisfaction of the complainants’ debt. Here then is one state of facts in the bill upon which relief may be had ; and it has been held that a bill which sets up one sufficient ground for equitable relief, and then states another, upon which no relief can be had, is not thereby rendered multifarious. Varick v. Smith, 5 Paige’s Rep. 137.

In such case it seems the defendant should demur to one part and answer to the other, or answer generally, and object at the hearing to that part which is without claim to equitable cognizance. It seems, according to this decision, that, to render a bill multifarious, the matters thereof must not only be separate and distinct, but each must be of a character entitling the complainant to separate equitable relief. But even if the matters of the bill were clearly multifarious, yet the rule seems to be, that the bill cannot be demurred to on that account, unless the prayer thereof be also multifarious. Dick v. Dick, 1, Hogan, 290. Here the prayer of the bill is for single relief. But it is said that the bill is defective, because there is no personal representative of Glasscock, as a party to the bill. This, I apprehend, is not necessary. Here the complainants make no claim upon the general assets of the estate, but seek to subject a fund, specifically pledged by the intestate, in his lifetime, for the payment of their debt. This I think they have a right to do, without making the personal representative a party, even if there were any ; but here it is distinctly alleged, that there is no such representative in existence. It is next said, in support of the demurrer, that the complainants do not allege that they accepted of the provisions of the deed of trust. It is well settled that a person for whose benefit a trust is created, without his knowledge, may after-wards affirm it and enforce its execution. Cumberland v. Codrington, 3 John. Ch. Rep. 261. The bringing the suit in this case, I consider, amounts to such an affirmance, and to an election, to claim under the deed of trust. I have much more difficulty with reference to the prayer of the bill. It is, that Mrs. Glasscock may be decreed to pay the amount of the complainants’ claim, and for other and further relief. I think I have already shown that no such direct decree can be made in the case ; — the complainants being entitled to relief, only through the medium of the trust fund. But to enforce the deed of trust would be entirely inconsistent with the prayer of the bill. It has been decided, and I think rightly, that where the complainant prays for particular relief, and for other and further relief, he can have no relief inconsistent with the specific relief asked, even though there may be just foundation for it in the bill. In such case, it seems the prayer for other relief must be in the disjunctive. Colton v. Ross, 2 Paige, Rep. 296 ; 1 Hoff. Ch. Pr. 51 (note). The prayer of the bill in this case is defective in that particular, and to that extent the demurrer must be sustained. But I think the complainants should have leave to amend upon payment of costs.