Petty v. Fogle

16 W. Va. 497, 1880 W. Va. LEXIS 39

• Court: West Virginia Supreme Court
• Decided: April 24, 1880
• Status: Published

Opinion

PIaymond, Judge,

delivered the opinion of the Court:

Regarding the exhibits A and C filed with the bill as a part thereof, it seems to me that the bill fails to show sufficient matter to give a court of equity jurisdiction thereof, as to the parties of the second part to exhibit A. in the bill mentioned; and that it does show on its face that there is an adequate and complete remedy at law as to the matters of taxes sought to be recovered in this cause by the bill against said-parties of the second part to said exhibit A, if auy recovery can or ought in fact to be had upon said matters or any part thereof in any court against said parties of the second part to said exhibit A. It seems to me that the parties of the first part to said exhibit A, nor either of them were and are not joint tenants or tenants in common with the parties of the second part thereto, whatever may be the legal relations of the parties of the first part to each other, or of the parties of the second part to each other. This, I think, is clear from the provisions and stipulations of said exhibit A. No question, therefore, of contribution between joint tenants and tenants in common arises in this case upon the face of the bill and exhibits between the parties of the first-part or any of them, and the parties of the second part, to said exhibit A. It is true the plaintiff in his bill does allege that the defendant, Evans D. Fogle, (one of the parties of the first part), is indebted to the plaintiff on the lots assigned to the plaintiff and said Fogle and Utt, in the sum of $ — ; but the plaintiff files no account with his bill against said Fogle. The only account filed by the plaintiff with his bill is against, the defendants, said .parties of the second part, Hamilton, Blair, Shat-tack, Williams and Burgess; and that account is for taxes from 1861 to 1872 inclusive, in which plaintiff charges said last named defendants with the taxes on one half of the whole tract of land of 207 acres assigned to them in the division and assignment of lots in the bill mentioned. And no effort or attempt is made in any part of ihe proceedings, by evidence or otherwise, to establish any claim for contribution to the plaintiff for any part of the lots assigned to the parties of the first part or either of them.

syllabus i. From the draft of the bill, the failure to file any account against Fogle and from all the subsequent proceedings in the cause, including the plaintiff’s evidence and also including the plaintiff’s declaration made in open court by his counsel, contained in the final decree, that he was not seeking relief in this suit except as against said Shattuck, it is manifest to my mind from the character of the bill, exhibits and the whole case as disclosed by the record, that said clause in the bill with reference to indebtedness of Fogle was incorporated therein with the view of giving jurisdiction to the court of equity of the matters of taxes alleged in the bill against the defendants other than the defendant Fogle. But if the plaintiff in fact had any just claim against defendant, Fogle, for contribution for taxes paid by him on these lots assigned 'to defendants, Fogle and Utt, it was improper to join that claim with his demand or claim against the other defendants, the parties of the second part to exhibit A.; for they had no interest in the matter of contribution between plaintiff and Fogle as to the taxes paid by plaintiff on the lots assigned to the defendants, Utt and Fogle, jointly, and had no interest in the litigation of that matter. In this aspect the bill was multifarious. See Story’s Eq. PI., §§ 271-286, 530,540, 747 and notes.

Syllabus2 I proceed now to consider some of the authorities bearing upon bills filed for an account against defendant. “ It is said a bill in equity has been a convenient substitute for the action of account.” This jurisdiction of equity was before the court of appeals of Virginia in the case of Smith v. Marks, 2 Rand. 449. The authorities were there examined, and the conclusion drawn that a bill for account would not lie, when there was only a single demand, and payment by way of set-off in the others; but that to authorize equity to take jurisdiction there must he mutual demands. See opinion of the court in the last named case delivered by Judge Carr and authorities there cited. Judge Carr in his opinion among other things, says: “For the assertion, that account is a head of equity, authority may be found in several elementary writers and books of practice; but the position is not to be taken in that large and comprehensive sense given to the word account in common parlance.” In the case of Smith v. Marks the bill was filed by a carpenter against his employer, to recover the balance due him for building a house, the dimensions of the house, the manner in which the work was to be done, the sum to be paid and the days of payment were stated in a written contract. The Court of Appeals was clearly of opinion that this was not such matter, of account as equity ought to entertain. The remedy at law was complete.

In The Presbyterian Church v. Mason et al., 4 Rand. 197, the plaintiffs made a contract with the defendants in their character of trustees for the pewholders of the church, whereby the defendants employed them to finish the steeple of the church ; and the plaintiffs asserted their demand under this contract by bill in equity. The Court ' of Appeals considered the case to be in principle like that of Smith v. Maries, and dismissed the bill. In the the opinion of the court there could have been no difficulty from the trustees’ fiduciary characters, because the bill stated that the contract was made with the trustees alone, and solely on their credit and responsibility.

In Poage v. Wilson, 2 Leigh 490, the complainant alleged that the defendant put land-warrants into his hands to the amount of one hundred thousand acres, to be by him located and surveyed for and in the name of defendant; that defendant under the contract was to pay $20.50 for every one thousand acres of land so located and surveyed ; that he located and surveyed the whole quantity, and defendant had at several times made him payments to the amount of $685.00; and the bill prayed an account of the transactions, and a decree for the balance due upon it. Held: that the claim of the complainant might have been enforced at law, if anything was due upon it, by action of assumpsit; and equity could take no jurisdiction. The bill was dismissed.

Hickman v. Stout, 2 Leigh 6, presented a case of a different kind. The bill stated mutual accounts between the parties, running through a series of years, and consisting of numerous items of blacksmith’s work on the one hand, and, on the other hand, of various items for articles of country produce delivered, for money paid, and for the use of wagons. In this case the jurisdiction of equity was sustained. 2 Robinson’s Old Prac. 3, 4, 5.

In Sturtevant v. Goode, 5 Leigh 83, the syllabus is : “S., a Carpenter, having been employed to build a house for G., and the terms of the contract being expressed in two agreements between the parlies, which ivere left in the hands of G., the employer, S. brings an action at law against,G. on the agreements; and his counsel, finding it necessary, and it being in fact necessary, to have copies of the agreements in order to frame his declaration, requires G. to furnish copies thereof; G. refuses to furnish them; whereupon S. dismisses his action at law, and files a bill in equity praying an account and a decree for the balance due for the work done. Held: the case is properly relievable in equity.” Judge Tucker in delivering the opinion of the court in this case said at page eighty seven: “ If Goode preferred a jury trial, he should have frankly afforded copies of the papers, which his adversary thought essential for the prosecution of his suit. As he did not, he cannot complain that he has been brought into a court of equity, since he compelled Sturtevant to come here. Nor can he under such circumstances, object to the jurisdiction. He cannot be permitted fo drive his adversary from the court of law by withholding papers, and then drive him from the court of chancery, because he did not hazard a trial at law without them.”

In the case of Tyler et al v. Nelson’s adm’x, 14 Gratt. 214, it was held, that “A court of equity has jurisdiction in a suit by a high sheriff against his deputy and the sureties of the deputy, to have a settlement of the accounts of several administrations upon estates committed to the high sheriff, and which went into the hands of the deputy. And the suit may be maintained, though the deputy had settled the administration-accounts before the probate court; though the bill does not allege, and it is not proved, that the high sheriff had paid the balance reported to be due on the settled accounts, or any part of them.” The jurisdiction of a court of equity to entertain the bill in this cause was sustained by the Court, of Appeals of Virginia for obvious reasons stated in the opinion of the court, delivered by Judge Lee, at pages 219 and 220.

In Sanborn v. Braley et al., 47 Vt. 170, it was held, that “ It is the proper exercise of equity jurisdiction to apportion among parties haying a common interest in the use of a water-power, and on whom rests a common duty of maintaining the dam which creates the power, the burden and expense of such duty.” See also Freeman on Co-tenancy and Partition, in which he says, at section 321, “ Courts of equity have concurrent jurisdiction with courts of law of all matters of account between tenants in common, or other co-tenants. Either co-tenant may invoke the assistance of equity to compel an accounting upon showing a necessity therefor, and cannot be deprived of this assistance merely because he has an adequate legal remedy by action of account. In fact the superior facilities offered by courts of equity, when an accounting has become necessary, are such that these courts are almost universally resorted to in preference to the tribunals of the law. But it has been determined, that, when the accounts are all on one side and are very simple, and no discovery is sought, courts of equity will decline taking jurisdiction of the case.” Mr. Freeman, in support of the last clause, in note two, cites Gloninger v. Hazard, 42 Pa. St. 401. In the case last named the syllabus is as follows, viz : “ Courts of equity have concurrent jurisdiction with courts of law in matters of account, where the accounts are mutual and complicated, and on one side only, where discovery is sought and is material to relief; but when the accounts are all on one side, and no discovery is sought or.required, the case is not one for a court of equity.”

Judge Woodward, delivering the opinion of the court, in the last named causé and at pages 400 and 401 says : “The next and only other observation we have to make is, that the plaintiff’s have ample remedy at law, and therefore should not come into equity. If they wish to compel the defendants to acknowledge their title, and admit them to a joint possession, ejectment is their appropriate remedy. If they want to recover rents, as-sumpsit lies. Borrell’s adm’r v. Borrell, 9 Casey (Pa.) 492. There is no doubt of our concurrent jurisdiction, with courts of law, in matters of acconnt where the accounts are mutual and complicated, and also where they are all on one side, but discovery is sought, and is material to the relief. In the first class of cases a bill in equity is generally preferable to account rendered, andas discovery is péculiarly a chancery jurisdiction, a court of equity, to prevent multiplicity of suits, will, when it has legitimately acquired jurisdiction over the cause for purposes of discovery, entertain the suit for relief, and dispose of every connected topic of dispute. But, on the other hand, where the accounts are all on one side, and no discovery is sought or required, courts of equity will decline taking jurisdiction of the cause. Brightly’s Eq. Pl. 124-125; McGowin v. Remington, 2 Jones (Pa.) 63; Shollenberger’s Appeal, 9 Harr. (Pa.) 340; Bank of United States v. Biddle, 2 Parsons (Pa.) 53 ; Story’s Eq. §§458-9, 462. The syllabus is taken from the foregoing part of Judge Woodward’s opinion and it will be seen by comparing the syllabus with the opinion, that the syllabus is not entirely accurate in part.

In the case of Northeastern Railway Co. v. Martin, 22 Eng. Chy. 757 top page and 758 side page, the syllabus is: “The equitable jurisdiction in matters of account is concurrent with that of courts of law, and no precise rule can be laid down as to the cases in which it will be exercised, this Court reserving to itself a large discretion upon the subject, in the exercise of which it will pay due regard to the nature of the cases and the conduct of the parties, and will not restrain an action already commenced, merely on the ground that from the number and perplexity of the items in the account a judge at nisi p>rius would urge the parties to refer it.” The Lord Chancellor in his opinion in this case says: “The jurisdiction in matters of account is not exercised, as it is in many other cases, to prevent injustice which would arise from the exercise of a purely legal right, or to enforce justice in cases in which courts of law cannot afford it; but the jurisdiction is concurrent with that of courts of law, and is adopted, because in certain cases it ■has better means of ascertaining the rights of parties. It is therefore impossible with precision to lay down rales or establish definitions as to the ease in which it may be proper for this Court to exercise this jurisdiction. The infinitely varied transactions of mankind would be found continually to baffle such rules, and to escape from such definitions. It is therefore necessary for this Court to reserve to itself a large discretion, in the exercise of which due regard must be had not only to'the nature of the case, but to the conduct of the parties. In the present case both concur in satisfying me that the trial of the action at law ought not to be stayed; it is not a case of mutual accounts — the only items on the one side being certain payments by the company to the plaintiffs at law, which are not in dispute.”

In the case of Fowle et al. v. Lawrason, 5 Peters 495 and 502, the Chief Justice said: “ That a court of chancery has jurisdiction in matters of account cannot be questioned, nor can it be doubted that this jurisdiction is often benificially exercised; but it cannot be admitted that a court of equity may take cognizance of every action for goods, wares and merchandise sold and delivered, or for money advanced, when partial payments have been made, or every contract expressed or implied consisting of various items, on which different sums of money have become due, and different payments have been made. Although the line may not be drawn with absolute precision, yet it may be safely affirmed that a court of chancery cannot draw to itself every transaction between individuals in which an account between the parties is to be adjusted. In all cases in which an action of account would be the proper remedy at law, and in all cases where a trustee is a party, the jurisdiction of a court of equity is undoubted. It is the proper tribunal. But in transactions not of this peculiar character, greater complexity ought to exist in the accounts, or some difficulty at law should interfere, some.discovery should be required, in order tor induce a court of chancery to exercise jurisdiction.”

In the case of Lafever v. Billmyer et al., 5 W. Va. , Judge Moore delivered the opinion of the court, in which he reviewed at some length a number of authorities on the subject; and in that case it was held substantially, that “ courts of equity have jurisdiction of matters of account: First. Where there are mutual demands, and a fortiori when complicated. Second. When the accounts are on one side and a discovery is sought that is material to the relief. Third. Equity having taken jurisdiction for discovery, will, to avoid multiplicity of suits, administer suitable relief. Courts of equity decline jurisdiction in matters of accounts: First. When the demands are all on one side, and no discovery is claimed or necessary. Second. When on one side there are demands, and on the other mere payments or sets-off, and no discovery is sought or required.” These propositions, I think, are in the main correct, although they do not embrace all matters of account of which equity should, or should not, take jurisdiction. Judge Moore in his opinion in the last named case at pages 41 and 42, says: “ I think, therefore, that it may be laid down as a general rule, that if a bill shows on its face that the specific account can be fairly taken in a court of common law, and the bill contains vague and general statements outside of the specific account, these statements will be considered merely as a pretext for transferring the jurisdiction from a court of lawr to that of equity, and in such a case a court of equity will sustain a demurrer to the bill.” This proposition also I consider is generally correct.

In the case at bar if the defendants, the parties of the second part to said exhibit A, are liable therein in any form of proceeding or suit, it is for a moiety of the county and state-taxes against the whole of said tract for the years mentioned in the bill, though I very much doubt whether the parties of the second part are liable for district and township taxes under any circumstances, as courts cannot undertake to make contracts for parties ; but I do not now decide the question, as it is not neees-sary in the view I take of the case. It is true that when parties make contracts, it is the province of the courts in proper cases and in the proper jurisdiction to construe such contracts according to the established rules of in-terpretalion, and enforce them, as far as may be ; and it strikes me that the word “or,” as used in said exhibit A in the last clause thereof in connection with the words “ county ” and “state,” was meant and intended by the parties to mean the same as if the word “ and ” had been used instead thereof. I only mention the matter of township and district-tax now by way of suggestion, not intending to commit myself thereto by what I have said in relation thereto. But whether the defendants, parties of the second part to said exhibit A., are liable for a moiety of the county and state-tax only, or for both and also a moity of the township and district taxes, under the last clause of said exhibit A, after deducting payments, a court of law is amply and completely competent to decide. And if it be held that the defendants are liable for one moiety of the county and state-tax only, then the account or claim therefor is not complicated, but is plain and easy of settlement and adjudication in a court of law; and so if it be held that the defendants, parties of the second part, are liable for one moiety of the township and district-taxes in addition to the county and state-taxes, after deducting payments, the account is not complicated, but is easy of settlement and adjudication in a court of law. There seems to have been according to the allegations of the bill but a single payment made on the taxes by the defendants, parties of the second part, and there is no discovery sought.

Upon the whole it seems to me, that there is a complete remedy in a court of law for the recovery of any taxes for which the defendants, said parties of the second part, are liable under said exhibit A, and that a court of equity should not take jurisdiction of plaintiff’s said claim in his bill and exhibits filed therewith mentioned for taxes against defendants, said parties of the second part, and (hat for this cause the plaintiff’s bill as to the defendants, said parties of the second part to said exhibit A, should have been dismissed as to the said defendants, parties of the second part to said exhibit, upon the demurrer to the bill contained in the answer of defendant, Shattuck.

The cases of Astor v. Miller et al., 2 Paige Chy. 68, and Williams v. Craig, 2 Edwards Chy. by McCowen, top page 296 and side page 297, at first glance seem to give some color to the propriety of a court of equity taking jurisdiction as to said matter of taxes against the defendants, said parties of the second part to said exhibit A; but on close examination of them it seems to me that there is a clear distinction between these cases and the case at bar, if these cases or either of them are to be followed.

For the foregoing reasons, it seems to me, there is error in the decree gendered in this cause by the circuit court of the county of Wood on the 13th day of March, 1877, and that the same must be reversed; but as the appellee, Shattuck, is the party substantially prevailing, the appellant must pay the appellee, Shattuck, his costs about his defence to the plaintiff’s appeal and supersedeas in this court. And this court proceeding to render such decree in the cause as said circuit court should have rendered, it is adjudged, ordered and decreed that the demurrer of the defendant, C. H. Shattuck, filed to the plaintiff’s bill in the forepart of his answer, be sustained, upon the ground that the said bill is multifarious, and upon the further ground, that a court of equity has not jurisdiction of the matters alleged in said bill as against the defendants, William Hamilton, J. B. Blair, C. H. Shuttuck, W. T. Williams and John Burgess; and that plaintiff’s bill for said causes be and is hereby dismissed. And the plaintiff, having failed to establish any just claim against the defendant, Evans D. Fogle, by reason of any matter alleged against him in the said bill, it is further adjudged, ordered and decreed, that the plaintiff’s bill be and the same is hereby dismissed as to the said Evans D. Fogle. And it is further adjudged, ordered and decreed, that the plaintiff, E. W. Petty, do pay to the said defendant, C. H. Shattuck, his costs about the defence of this suit in the circuit court of the county of Wood expended, &c.

The Othek Judges Concurred.

Decree Reversed. Cause Dismissed.