NAPTOF, J.
The question as to the multifariousness of this bill would seem to be quite an abstract one in the present position of the case. The question was originally raised by a demurrer to the bill, filed by the present appellant, W. R. Martin, and his co-defendant, John T. Martin. The demurrer of the latter party was sustained, but he subsequently filed an answer, disclaiming all title to the slaves in his possession, and giving them up to be administered as a portion of the estate of Russell Martin. The demurrer of the appellant was overruled. The other defendants, who were distributees or heirs of Russell Martin, in conjunction with the appellant and appellee, filed their answers, admitting the allegations of the bill, so far as the slaves in their possession was concerned. At the hearing, the whole case was narrowed down to a controversy between the appellant and the appellee. That controversy was investigated on its merits ; a mass of testimony was introduced, and it is difficult to see any advantage which could result to the appellant from a reversal of the decree upon the ground of multifariousness, provided the other questions involved in the case should be determined against him. These suggestions are, however, made rather as an apology for not going into a very critical examination of the authorities which have been referred to upon this [40] subject, and not witli a view to leave the point undecided. I believe the objection to be untenable. Passing by the question of jurisdiction, which will be presently considered, it will be seen that this bill has a common purpose in view, based upon a single and connected proposition. All the defendants stand in precisely the same predicament. They are all heirs of Russell Martin, and as such only claim a title to the slaves in their respective possession, by gift from the common ancestor and independent of their rights as distributees. If the title of one is good, the title of all is good ; if one fails, all must fail. This is the assertion of the bill. The charge of the bill is that Russell Martin, the ancestor, put into the possession of each of his children a slave, as a loan, and with the express understanding that the slaves were to be returned'at his death, and they and their issue divided equally among his children. The whole object of the bill is to have this title, asserted to be in the heirs of R. Martin, ascertained and protected. ’ The bill is against several persons,'but the demands against each are similar, based upon the same facts, and growing out of and depending upon the same principles. It is true, that one of the defendants, W. R. Marlin, occupies the position of co-administrator as well as a claimant in his own right; but it is in the latter character only that he claims any title to the slaves in his possession. Whatever effect the appellant’s position, as administrator, may have in giving jurisdiction to the court, it is certainty only his antagonistic position to the estate that he is called upon to defend. Such is also the position of the other defendants. Why compel the personal representative to bring as many suits as there are heirs, when the whole matter can be as well and better settled in one suit ? If the claims of the several defendants were derived from different sources, or depended upon different principles, and had no necessary connection with each other, so that the bill might fail as to one and be sustained as to another, I can see the inconvenience and impropriety of commingling such disconnected demands. But this is not so, and I therefore conclude that the question of multifariousness should not prevail.(a)
I have no doubt of the jurisdiction of a court of equity In cases like the present. Where property alleged to belong to a decedent’s estate, is in the possession of a third person, sotting up an adverse claim, can there he any doubt that the personal representative of the decedent could maintain trover, or replevin, or detinue ? Those sections of the Administration act, which have been thought to provide a remedy in the County Court in such cases, would not, upon any construction, oust the Circuit Court of its common law jurisdiction. The 9th section of the second article of the act provides for a case, where any person “conceals or embezzles” goods of the deceased. These terms would seem to Imply fraud, but if the administrator preferred to waive the fraud and bring his action of trover, could a demurrer to the dcclar-ation bo sustained on the ground of an exclusive jurisdiction in the County Court ? The cases which must have been contemplated by the 9th and preceding sections, are probably such where the title of the estate is beyond dispute. Very summary'procceodings are authorized ; a citation and examination on oath are permitted. Where a serious dispute was anticipated about title, a prudent administrator would scarcely venture on this extraordinary reniedj''. The action at law is plain, and his authority to bring it is beyond dispute. The 31st section of the same article expressly requires the administrator to commence and prosecute all actions which may be necessary in the course of his administration.
But the defendant, W. R. Martin, was a co-administrator with the complainant, and a suit at law could not have been maintained. The administrator could not sue himself, nor could one administrator sue his oompanion at law. If it be said that the act concerning Administration has provided a mode of removing an administrator in cases of this character, and that by pursuing this mode the defendant might have been sued at law, the neoessit.y. of such circuitous proceedings only more clearly brings the case within the jurisdiction of the Chancellor. The remedy prescribed in the Administration law, if any be admitted to exist, is not of that clear, ample and complete character, which ought to divest a jurisdiction already existing in another tribunal; plain, .adequate and satisfactory. To proceed against the administrator fgr unfitness [41] must also, to some extent, involve a consideration of tlie very same questions •of title, ■which have ultimately to be decided in the subsequent proceedings. The law does not encourage circuity of action. When a controversy can be •settled in one suit, it is not good policy to require two.
Upon the facts of this case, I shall not dwell. To show where the weight of testimony is, would be to recapitulate all the evidence, which is voluminous, and may be found in the statement. I shall advert to one or two circumstances ■only, as satisfactory to my mind in favor of the decree.
It cannot be denied, that the testimony which ought to establish such an arrangement as is charged and sought to be enforced in this bill, should he of the most unequivocal and satisfactory character. Such plans are usually resorted to, with a view to protect property from creditors. They arc.seldom made in good faith, and where there is no want of good' faith, they are still unequal and unjust in their operations, and tend to produce dissatisfaction and dissension. Courts of equity cannot view such dispositions of property in a favorable light; every presumption of law and of fact is against their existence ; yet where they are clearly proved, the right of the parties to dispose of their property according to their own caprices, is indisputable, and the contract proved must be enforced, however absurd or unjust.
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NAPTOF, J.
The question as to the multifariousness of this bill would seem to be quite an abstract one in the present position of the case. The question was originally raised by a demurrer to the bill, filed by the present appellant, W. R. Martin, and his co-defendant, John T. Martin. The demurrer of the latter party was sustained, but he subsequently filed an answer, disclaiming all title to the slaves in his possession, and giving them up to be administered as a portion of the estate of Russell Martin. The demurrer of the appellant was overruled. The other defendants, who were distributees or heirs of Russell Martin, in conjunction with the appellant and appellee, filed their answers, admitting the allegations of the bill, so far as the slaves in their possession was concerned. At the hearing, the whole case was narrowed down to a controversy between the appellant and the appellee. That controversy was investigated on its merits ; a mass of testimony was introduced, and it is difficult to see any advantage which could result to the appellant from a reversal of the decree upon the ground of multifariousness, provided the other questions involved in the case should be determined against him. These suggestions are, however, made rather as an apology for not going into a very critical examination of the authorities which have been referred to upon this [40] subject, and not witli a view to leave the point undecided. I believe the objection to be untenable. Passing by the question of jurisdiction, which will be presently considered, it will be seen that this bill has a common purpose in view, based upon a single and connected proposition. All the defendants stand in precisely the same predicament. They are all heirs of Russell Martin, and as such only claim a title to the slaves in their respective possession, by gift from the common ancestor and independent of their rights as distributees. If the title of one is good, the title of all is good ; if one fails, all must fail. This is the assertion of the bill. The charge of the bill is that Russell Martin, the ancestor, put into the possession of each of his children a slave, as a loan, and with the express understanding that the slaves were to be returned'at his death, and they and their issue divided equally among his children. The whole object of the bill is to have this title, asserted to be in the heirs of R. Martin, ascertained and protected. ’ The bill is against several persons,'but the demands against each are similar, based upon the same facts, and growing out of and depending upon the same principles. It is true, that one of the defendants, W. R. Marlin, occupies the position of co-administrator as well as a claimant in his own right; but it is in the latter character only that he claims any title to the slaves in his possession. Whatever effect the appellant’s position, as administrator, may have in giving jurisdiction to the court, it is certainty only his antagonistic position to the estate that he is called upon to defend. Such is also the position of the other defendants. Why compel the personal representative to bring as many suits as there are heirs, when the whole matter can be as well and better settled in one suit ? If the claims of the several defendants were derived from different sources, or depended upon different principles, and had no necessary connection with each other, so that the bill might fail as to one and be sustained as to another, I can see the inconvenience and impropriety of commingling such disconnected demands. But this is not so, and I therefore conclude that the question of multifariousness should not prevail.(a)
I have no doubt of the jurisdiction of a court of equity In cases like the present. Where property alleged to belong to a decedent’s estate, is in the possession of a third person, sotting up an adverse claim, can there he any doubt that the personal representative of the decedent could maintain trover, or replevin, or detinue ? Those sections of the Administration act, which have been thought to provide a remedy in the County Court in such cases, would not, upon any construction, oust the Circuit Court of its common law jurisdiction. The 9th section of the second article of the act provides for a case, where any person “conceals or embezzles” goods of the deceased. These terms would seem to Imply fraud, but if the administrator preferred to waive the fraud and bring his action of trover, could a demurrer to the dcclar-ation bo sustained on the ground of an exclusive jurisdiction in the County Court ? The cases which must have been contemplated by the 9th and preceding sections, are probably such where the title of the estate is beyond dispute. Very summary'procceodings are authorized ; a citation and examination on oath are permitted. Where a serious dispute was anticipated about title, a prudent administrator would scarcely venture on this extraordinary reniedj''. The action at law is plain, and his authority to bring it is beyond dispute. The 31st section of the same article expressly requires the administrator to commence and prosecute all actions which may be necessary in the course of his administration.
But the defendant, W. R. Martin, was a co-administrator with the complainant, and a suit at law could not have been maintained. The administrator could not sue himself, nor could one administrator sue his oompanion at law. If it be said that the act concerning Administration has provided a mode of removing an administrator in cases of this character, and that by pursuing this mode the defendant might have been sued at law, the neoessit.y. of such circuitous proceedings only more clearly brings the case within the jurisdiction of the Chancellor. The remedy prescribed in the Administration law, if any be admitted to exist, is not of that clear, ample and complete character, which ought to divest a jurisdiction already existing in another tribunal; plain, .adequate and satisfactory. To proceed against the administrator fgr unfitness [41] must also, to some extent, involve a consideration of tlie very same questions •of title, ■which have ultimately to be decided in the subsequent proceedings. The law does not encourage circuity of action. When a controversy can be •settled in one suit, it is not good policy to require two.
Upon the facts of this case, I shall not dwell. To show where the weight of testimony is, would be to recapitulate all the evidence, which is voluminous, and may be found in the statement. I shall advert to one or two circumstances ■only, as satisfactory to my mind in favor of the decree.
It cannot be denied, that the testimony which ought to establish such an arrangement as is charged and sought to be enforced in this bill, should he of the most unequivocal and satisfactory character. Such plans are usually resorted to, with a view to protect property from creditors. They arc.seldom made in good faith, and where there is no want of good' faith, they are still unequal and unjust in their operations, and tend to produce dissatisfaction and dissension. Courts of equity cannot view such dispositions of property in a favorable light; every presumption of law and of fact is against their existence ; yet where they are clearly proved, the right of the parties to dispose of their property according to their own caprices, is indisputable, and the contract proved must be enforced, however absurd or unjust.
Entertaining those views in relation to the policy and propriety of such dispositions of property as is c’aimed to have been made by Russell Martin among his children, I have scrutinized the testimony with no unfavorable propositions against the defendant’s rights. But there is a mass of testimony from witnesses who stand unimpeached, and -whose opportunity of knowing the facts must have been great, all tending to establish tlie fact that llussell Martin placed with each of his children, upon their marriage, a female slave, as a loan, and with"a distinct understanding on the part of the children, that the slave and her increase should be returned at liis death into the mass of his estate, to he again distributed under the law. It is a fact worthy of some consideration, that all the children in this case, except the defendant, admit this disposition, and have returned their respective shares of Slaves. In relation to some of these heirs, it was their interest to maintain such an understanding, and their testimony to its existence may therefore be entitled to but little influence. But this was not the case in relation to one or two of tlie others, who, in addition to the present defendant, were losers by the establishment of the title of Russell Martin’s representatives, and their admissions tend to corroborate very strongly the assertions of the interested parties.
The admissions of the defendant, W. R. Martin, made during a long series of years,-repeated to various witnesses upon various occasions, are certainly very convincing proof to establish the truth of the allegations of the bill.These admissions, however, are not alono and unsupported by acts, but they wore corroborated by acts of ownership asserted by the father, under circumstances calculated to leave but little-doubt as to the real understanding of all the parties "to the transaction. Russell Martin, the father, continued to pay the taxes of the slaves put in the possession of his children, and upon the slaves now. claimed by the defendant, for a long series of years. W. R. Martin, the defendant, was hoard upon several occasions to speak of the transaction as a loan, and to laud the justice and propriety of the arrangement by which, as he then supposed, the sons and sons-in-law of liis father would be prevented from dissipating the property advanced to them. In the course of ten or fifteen years, after the defendant had received the female slave, now claimed by him, from his father, he began to perceive the injustice and impolicy of his father's project. He then set about asserting title, but liis course on these occasions is one of the most convincing proofs to establish the title of his father. He never asserted that tlie slave in his possession had been given to him, but he commenced building up a title on long and peaceable possession. Having conceived a notion that five years’ peaceable possession gave title, he based his rights upon that doctrine. He never pretended that his father had-given him the slave, but that liis long and uninterrupted possession of her would, in the eye of the law, and as he had been advised, constitute a title for him. Is not this assertion, coupled with his [42] former assertions, acquiescing in tlie original term of a loan and tlie repeated practical assertions of title on tlie part of tlie father, by paying taxes on the slave, sufficient to make a strong case against tlie defendant ?
The testimony in relation to the public rumor, I have not noticed, because I think it was inadmissible, and there is ample testimony without it; nor is there any counter evidence of any note. Nearly all the testimony on the defendant’s behalf is of a negative character. Numerous witnesses are introduced to prove that they had not heard any public rumor. That Russell Martin’s slaves had bien loaned to his children, such negative testimony is entitled to but little weight, when opposed to positive testimony to the contrary, of unimpeached and disinterested witnesses.
The declarations of Russell Martin, the father, in the presence of the defendant, and uncontradicted by him, were also in evidence, and entitled to weight in aiming at tlie facts.
I consider, then, tlie repeated admissions of the defendant, and his subsequent assertion of title upon a supposed acquisition of one by long possession; the payment of taxes by tlie father, and his unequivocal declarations that the slaves were his, made in the presence of the defendant, and acquiesced in, although with evident dissatisfaction by the son; the acknowledgment of all the other children and sons-in-law of the father, Russell Martin, that the slaves held by them were loans, as altogether forming a mass of testimony in favor of the allegations of the bill, which I am not at liberty to disregard. Mere presumptions, however strong, cannot outweigh a mass of unimpeached positive testimony.