Carroll v. Roosevelt

4 Edw. Ch. 211 | New York Court of Chancery | 1843

The Vice-Chancellor :

So far as the bill seeks to overthrow the mortgages to Roosevelt and Faber and Merle and the title in the defendant Sand, (under the latter,) on the ground of the invalidity of the mortgagor’s title under the conveyance from his mother to him, the objection of misjoinder or multifariousness has no foundation. Although the interests of these mortgagees are distinct, yet they are equally concerned to support the title of their common mortgagor and it is proper to have them joined or to unite them as defendants in the same bill which has for its object the overthrow of that title, in order that they may both interpose their defence. The issue to be tried affects them • both and it can be more conveniently tried and determined in one suit than in two in which the proceedings and testimony would have to be in all respects similar.

The cases of Fellows v. Fellows, 4 Cowen’s R. 682 ; Boyd v. Hoyt, 5 Paige’s C. R. 65 ; Swift v. Eckford, 6 Ib. 22, contain the true rule on the subject and show that it is proper to make both Roosevelt and Sand defendants in the same bill for this particular purpose and object.

But, another question arises, whether it is admissible thus to implead them in a bill which has a further object in view, namely, the taking of an account and the settlement and distribution of the estate between the complainant and the other defendants, in which accounting and distribution the first named defendants have no interest or concern 1 Some of the cases cited on the argument would seem to answer this question in the negative. The case of Salvidge v. Hyde comes the nearest to the case in hand, and in which the vice-chancellor overruled the demurrer, but which was afterwards allowed by Lord Eldon on appeal (5 Mad. C. R. 138, and Jac. R. 151.) In Campbell v. Mackay, 1 Mylne & Craig, 603, before Lord Cottenham, chancellor, it is shown on a review of all the English cases on the subject of multifariousness, that where the complainants have a common interest in all the matters comprised in the bill and the defendants are concerned only in portions of the subject matter tliat the objection of multifariousness becomes a subject of discretion to be determined and upon considerations of convenience and expediency with reference to the circumstances of each particular case; and the argument there, in support of the demurrer against uniting defendants in that bill, was quite as strong and, indeed, stronger than can be urged in the present case and,- yet, both the vice-chancellor and lord-chancellor on appeal overruled the demurrer. That case I deem a sufficient authority for allowing the bill to stand as a matter of convenience, to take the accounts and settle the estate after it shall be determined how far the mortgages in question are valid. Indeed, I do not see but what the mortgagees may become interested in the taking of the accounts with the view to ascertain the amount or value of the share which may still remain to Nicholas ; for if his title by deed, under which he gave the mortgage, should fail, his mortgagees may, perhaps, be entitled to claim in equity that those mortgages may be deemed valid incumbrances on his undivided share of the property. And if, on the other hand, it shall be determined that the mortgages are valid under Nicholas’s title from his mother, then this bill, as to these defendants, will be dismissed and they will be . , , . . . „ put to no trouble or inconvenience in the matter of account.

Order, overruling demurrer, with costs.