Buchoz v. Lecour

9 Mich. 234 | Mich. | 1861

Christiancy J.:

The original bill in [¡this cause was filed to obtain a reconveyance of certain lands, claimed to have been conveyed by complainant to Leeour, as security only, for a debt which it alleges to have been paid. It also claims that a subsequent deed of the same lands, executed by complainant to Leeour, was obtained by fraud; alleges a conveyance by Lecour to defendants John P. Juif and Theophilus Juif, with full notice on the part of the purchasers of complainant’s rights. It appears from the original bill, taken in connection with the subsequent bill in the nature of a bill of supplement and revivor, that all the other defendants derive their interest and title through this conveyance, in part by purchase alleged to be without consideration and with notice, and in part by inheritance from John P. Juif, who died after the filing of the first bill. The merits depend wholly upon the pleadings and proceedings in the original suit.

The answer of Lecour to the original bill denies all the material facts stated in the bill, and fully meets and controverts all the equities of the complainant: and though the answer is not evidence (the oath being waived), it still has the effect to put the complainant to the proof of his case, and without such proof it is admitted no decree could be obtained against Lecour.

But the other defendants, whose rights were derived from Lecour, did not answer; and, as to them, the bill was taken pro confesso.

Mr. Bates, who appeared as solicitor, and put in the answer for Lecour, before entering an appearance for any of the defendants, had stipulated with complainant’s solicitor to appear for all the defendants; but he never entered an appearance nor filed an answer for the other defendants, though the stipulation was filed; and upon the strength •of this stipulation, and claiming this as an appearance, the order pro confesso was entered. The case does not show that any subpoena was ever issued for the appearance of defendants. No proofs were taken, and the case was heard upon bill, answer and replication.

A question is raised by defendants, as to the authority of Bates to bind them by this stipulation; and his authority is put in issue by the answer to the supplemental bill. But we do not deem it necessary to discuss this question; because, admitting his authority, and that the filing of the Stipulation constituted an appearance of all the defendants, still we think the answer of Lecour must be held to enure to' the benefit of the other defendants, whose rights were derived from him, and dependent upon his. It is true the defendants, whose rights were derived from Lecour, might have other defenses, not available to him, and which they might have been able to sustain though his might have failed. Of all such independent defenses,, peculiar to them, they would lose the benefit by suffering the bill to be taken as confessed. But, on the other hand, if the case, as presented, shows no right as against Lecour, and is not such as to have invalidated his title had it still remained in his hands, the complainant can not possibly be entitled to the relief he asks as against the same title in the hands of Lecour’s assigns.

The answer of Lecour, until overcome by proof, was sufficient to protect his own title to the land had he never conveyed to the other defendants. We think it equally protected the same title in the hands of the purchasers and those claiming under them, and that they had a right to rest their defense upon that of their grantor, and to abide the result of his defense. And if, as claimed by complainant, Lecour’s solicitor was also the solicitor of tho other defendants, and they had no defense independent of Lecour’s, we can see no reason why ho should subject them to the expense of an answer, or encumber the records by a repetition of what already sufficiently appeared.

But it is said, Lecour was not a necessary party, and that the bill might have been filed against the other defendants alone. But though not perhaps a necessary, he was a proper party. Had the bill been filed against tho other defendants alone, there would have been no answer from him which could protect them; and they must have defended themselves or abandoned their rights. But upon "the bill as presented, the complainant has aimed to reach these defendants only through Lecour; and his answer interposes a shieid which protects their rights, as well as his own.

The decree of the court below, dismissing the bill, must be affirmed with costs.

Martin Ch. J. and Manning J. concurred. Campbelb J. did not sit in the case, having been of counsel,