61 Miss. 96 | Miss. | 1883
delivered the opinion of the court.
The bill charges that the estate of W. Z. McCrackin is probably insolvent, but that whether it is or is not cannot be known until an account shall have been taken of the assets received by B. E. Craig & Co. belonging to the estate, and of the true amount of the mortgage debt. If the estate is insolvent, or if the personalty shall prove insufficient to discharge all the debts due by it, the administrator will have such an interest in subjecting the realty to sale as to enable him to maintain the bill for a cancellation of the mortgage if paid, and as incident thereto to have an account of the mortgage debt and all payments made thereon. It is true that the administrator by the bill now filed seeks discovery and relief as to other matters, the misappropriation by the defendants of the assets of the estate, which might be made the foundation of a suit at law. But under the allegations of the bill the complainant would have been entitled to discovery as to these matters if the bill had been one for discovery merely in aid of an action brought or to be brought at lair, and since he is entitled to discovery as to all the matters and to relief as to one and the matter as to which he is entitled to relief depends upon or is intimately connected with the
Where discovery is prayed by the complainant, and the defendant resists discovery, or demurs to a bill seeking such relief because other relief is prayed which can only be given on final hearing, and the defense is that there is no jurisdiction in equity to grant such final relief, the courts have been astute to find some ground for retaining jurisdiction for final relief in order that the plaintiff may not be denied the discovery to which he is equitably entitled. “ The jurisdiction of courts of equity as dependent upon discovery,” says Judge Story, “ is in a distressing state of uncertainty;” and so indeed it appears to be. But where the complainant is able to anchor himself in the court by showing facts which entitle him to relief outside of and beyond the discovery sought, and the discovery is necessary or proper for the determination of the matter as to which the relief is sought, or' is pertinent thereto, we have not found a case in which it has been denied. The demurrer to the original bill was properly overruled.
No relief was sought by the complainant against the defendant, Estelle V. McCrackin; the bill does not seek to subject the land mortgaged to sale for the payment of the debts due by the intestate. Her interests are identical with those of the administrator as to the objects of this suit, and it would have been more regular to have made her a party plaintiff than defendant. Upon her motion, the Chancellor should permit her to become complainant instead of defendant, but being improperly defendant she ought not to be permitted to incumber the records and accumulate costs by filing a cross-bill. The demurrer to the cross-bill should have been sustained.
Decree accordingly.
