Plummer v. Plummer

37 Miss. 185

• Court: Mississippi Supreme Court
• Decided: April 15, 1859
• Status: Published

Opinions

Harris, J.,

delivered the opinion of the court.

The object of the bill in this case is to recover certain slaves, alleged to be the property of complainant, and in the possession of the defendant Odell.

The hill alleges that complainant purchased the slave Louisa in the year 1843, and that the other slaves in controversy are the children of Louisa, born in the possession of complainant, and that said negroes have remained in his possession ever since, until January or February, 1855; that in the year 1849, complainant, with the consent and approbation of bis wife (the defendant, Margaret Plummer), and for the purpose of bettering bis fortune, went to California, leaving his said wife with two children, and leaving said negroes in her possession, and under her control, to aid in the support and maintenance of herself and children; that he frequently corresponded with the said Margaret, and from time to time made her remittances of money, amounting in all to about $1260, all of which she received, and which with the hire of said negro made ample provision for said Margaret and her children.

After having thus stated Ms title to the property in dispute in the stating part of the bill, he comes to the “ confederating ■part,” which is formally framed, alleging a combination and confederacy between the defendants, to defraud and deprive complainant of the slaves in controversy. He next states the particular facts constituting the combination, confederacy, and fraud, to be as follows: That the defendant, combining, &c., to deprive the complainant of said slaves, filed her bill in June, 1854, against complainant, falsely stating that complainant, with her means, had purchased said negro woman Louisa; and that complainant had abandoned her in August, 1849, against her will, and had obstinately and wilfully continued such abandonment and desertion to the date of filing her said bill. Praying the usual order of publication, and for a divorce a vinculo, and a decree for the slaves, and for the custody of the children. The proceedings on said bill and final decree are stated, and the whole record - made an Exhibit, A. The bill then shows that the said Margaret transferred and delivered the said slaves to the said Davis & Odell, and that Odell now has possession of them, and refuses to deliver them up, although demanded.

Next comes the charging part of the bill, in which the pretences of the said Odell are stated, and in which complainant charges that all said pretences of title are untrue; that his title is void; that said bill, proceedings, and decree are void; that no notice of the same, either actual or constructive, was ever given complainant; that the name of Cozzens, as next friend, was used without his knowledge or consent; that deception was practised on witness Linden, so as wholly to pervert the meaning of his evidence and language, and conveying a meaning never intended by him; and various other charges of fraud, concealment, and collusion; and other allegations, showing that there was no pretence for such a proceeding against complainant.

The bill shows that the notice required by the statute was published for the space of one month only before final decree, and that the whole proceeding was a gross fraud. Process is prayed against the defendants, &c., for answers; that Odell account for hire, and deliver up the negroes to complainant; and for subpoena, and for other or further relief, &c.

To this bill separate demurrers are filed by the respective defendants, stating various causes. Which several demurrers were sustained by the court below, and the bill dismissed; for which error this writ is prosecuted here. To understand properly the questions presented here, it is necessary to observe, that this is a bill in ordinary form for the recovery of slaves, alleged to be the property of complainant, and of peculiar value. The issue presented is as to the validity of complainant’s title. The bill only seeks the recovery of the slaves and hire. This is all that is contained in the “ stating part” of the bill, — the complainant’s title to the slaves in dispute. This part of the bill constitutes “the real substance of the bill upon which the court is called to act.” Story Eq. Pl. § 27.

It is not a bill to set aside a decree on account of fraud or want of notice, as supposed; but these facts are charged to avoid the defence, supposed to be relied on by the defendants, and are regarded in the nature of a replication, to a plea setting up such facts, in avoidance of a case, stated in the stating part of the bill.

Anciently, no notice was taken in a bill of the real or supposed defence which would be set up by the defendant. The defence came out by plea, and the replication stated the matter in avoidance of the plea; and then the rejoinder denied the matter in the replication, and the parties were then at issue. 'When, for example, according to the old practice, a plaintiff, by his bill, stated a case for relief, if there had been a former decree on the merits, which he sought to set aside on account of fraud, in obtaining the decree, the bill did not, in any manner whatever, allude to the decree. It was left to the .defendant to plead the decree, as a defence, barring the plaintiff’s right. And the plaintiff then, by his replication, would reply that the decree had been obtained by fraud; by which the plaintiff would admit that the decree was a bar, if not capable of impeachment on the ground of. fraud. The defendant would, by his rejoinder, avoid or deny the charge of fraud, and sustain the decree, and then the issue would be simply on the fact of fraud. In such a case, it is manifest that no answer, on the part of the defendant, to the charges of fraud, would be proper. For as no such charges were in the bill, no such discovery would be sought, or would be proper. In truth, if there was any answer in such case, it would overrule the plea. Story’s Eq. Pl. sect. 676; Mitf. Eq. Pl. by Jeremy, p. 243, note (e); Beames Pl. in Eq. 2, 3, 6; Mitford Eq. Pl. by Jeremy, 74, 299.

But when a change of the frame of pleadings took place, and .special replications, rejoinders, and surrejoinders, fell into disuse, and' the bill, instead of relying solely on the matter constituting the plaintiff’s original case, proceeded to anticipate the defence, and charged facts to avoid that defence (thus performing the double functions of a bill and of .a replication, under the old practice), and required a discovery as. to the matters charged; a change in the mode of making his defence became indispensable for the protection of the defendant, and he was compelled to put in a plea, which was, in part, both a plea and a rejoinder. That is, he was obliged to plead the bar, and negative the charges and circumstances which sought to avoid it. And as a discovery was sought in relation to these very matters charged in avoidance, he was also compelled to accompany his plea with an answer, fully discovering and responding to these matters. Story’s Eq. Pl. sect. 678, 684; Mitford’s Eq. Pl. 74; Story’s Eq. Pl. sect. 31, and notes.

“ If the bill, states the decree, only as a pretence of the defendant, which it avoids by stating, that if any such decree had been made, it had been obtained by fraud, the decree must be pleaded, because the fact of the decree is not admitted by the bill; and the charge of fraud must also he denied by the plea.” Mitford’s Eq. Pl., by Jeremy, 74, 301-4; Story’s Eq. Pl. § 646, note 1, and authorities cited.

“ If the bill states the decree absolutely, but charges fraud to impeach it, yet the decree must be pleaded; because the decree, if not avoidable, is alone the bar to the suit, and the fraud, by which' the bar is sought to be avoided, must be met by negative averments in the plea; because, without such averments, the plea would admit the decree to have been obtained by fraud, and would therefore admit that it formed no bar. Where issue is joined upon such a plea, if the decree is admitted by the bill, the only subject, upon which evidence can be given, is the fact of fraud. If that should be pi’oved, it would open the plea on the hearing of the cause, and the defendant would then be put to answer generally, and to make defence to the bill, as if no such decree had been made; the object of the plea is to prevent the necessity of entering into that defence, by trying first the validity of that decree. If the evidence of fraud should fail, the decree operating as a bar would determine the suit, as far as the operation of the decree would extend.”

If the bill stated the title under which the plaintiff claimed, without stating the decree by which it had been affected, the defendant might have pleaded the decree alone in bar. If the bill stated the plaintiffs title, and also stated the decree, and alleged no fact to impeach it, and yet sought relief, upon the title concluded by it, the defendant might demur, because, upon the face of the bill, the title of the plaintiff -would appear to be concluded by it. But, as in the form of pleading in equity, the bill may state the title of the plaintiff, and, at the same time, state the decree by which, if not impeached, that title would be concluded, and then avoid the operation of the decree by alleging, that it had been obtained by fraud, so the defendant may plead the decree with averments denying the fraud alleged; and these averments being the only matter in issue, they are necessarily of the very substance of the plea, and the decree, if obtained by fraud, would be no bar to the title set up by the plaintiff as the foundation of his bill, because it would be void. Mitford’s Eq. Pl. by Jeremy, 303, 304; Story’s Pl. Eq. sect. 680, note (1).

The question of fraud is thus collaterally raised and inquired into, to impeach the decree, instead of making it the original object of the bill, and afterwards filing a second bill, for the recovery of the property in dispute.

The practice is simple, avoiding multiplicity of suits, and consistent with the general principles of law and equity, which declare even judgments, obtained by fraud, wholly void.

In the case before us, the complainant, in the stating part of his bill, alleges a perfect title in himself to the property in dispute. He then proceeds, after the “ confederating part,” to charge the various pretences and defences upon which he supposes the defendants rely, and to avoid them by charging fraud, &e., and calling for answer.

The defendants pretermit the case made by the bill, and demur to their own supposed defence as charged; and upon the idea that it is a bill to set aside a decree for fraud or want of notice, insist that the court has no jurisdiction, that there is a misjoinder of parties, that the bill is multifarious, &c. &c.

The demurrer, of course, admits the facts properly stated in the bill. It would be ■ difficult for us to conceive upon what principle (treating this as an ordinary bill to recover the title and possession of slaves) a demurrer to this bill could be sustained. The bill first alleges the purchase of the slave Louisa with the money of complainant ; that the remaining slaves in controversy are her children, born the property of complainant; that complainant, with the consent and approbation of his wife, went to California to better the condition of his family by the pursuit of his trade as a blacksmith; that he made provision for the support and maintenance of his wife and children in his temporary absence, by leaving these negroes in her possession and under her control; that from time to time he sent her money, amounting to $1260; that his wife, combining with defendants to defraud him, and deprive him of the title to the slaves, falsely and fraudulently accused him of abandonment and desertion, and fraudulently procured a decree of the court against him, without notice, actual or constructive, depriving complainant of the title to his slaves, and sold or transferred and delivered them to defendants, Davis & Odell; and that Odell now has them; and prays for restitution of his slaves and hire. If these facts are true, he is certainly entitled to the relief he seeks.

It is suggested that his bill should have been filed, to set aside and annul the whole decree, and not for the recovery of the slaves alone. He might have elected this remedy, if he had desired it. But this court has no power to compel it, nor has it power to declare that a void judgment or decree shall have validity anywhere or under any circumstances. It may be attacked either directly or collaterally. If, as alleged, the decree against complainant was obtained by fraud and without notice, it was void ab initio, and gave no title to the negroes in dispute. The complainant might have instituted his action at law for their recovery; or, under the principles of ehancery jurisdiction, that negroes have a peculiar value, pretium affectionis, he may invoke its jurisdiction for their specific recovery; and such decree would be no obstacle to his recovery in either jurisdiction. He need not set it aside, because it never had validity, as a' decree, but was and is a nullity.

We think there is no misjoinder of parties under the allegations of the bill. Nor is the bill multifarious. It seeks a single object, —the recovery of the slaves, with their hire.

The views already presented perhaps cover the points properly presented by the demurrer. But as the question is, whether the Act of 1822, requiring that the order made for hearing in cases of divoree, shall be published for the space of three months before the day set for hearing, when the defendant is a non-resident, has been repealed by the Act of 1848, p. 148, reducing the time to one month, may become material, we regard it proper to express the opinion of the court on that subject. By the ordinary rules of construction, — regarding the Act of 1822 as having reference to a special class of eases, — its repeal by implication would not be favored. But yielding to the rule which, in doubtful eases, gives weight to'the argumentum ab ineonvenienti, and as the Act of 1848 has received this construction, and many cases and important rights have been affected thereby, we deem it safe to hold that the Act of 1848 applies to divorce cases, as well as all others. This construction has the further merit of giving uniformity to the rule requiring publication, which seems to have influenced the legislative mind.

Let the decree be reversed, demurrer overruled, and leave to defendants to answer in sixty days.