57 N.H. 95 | N.H. | 1876
Lead Opinion
FROM COOS CIRCUIT COURT. The object of this bill is, to set aside certain conveyances from the plaintiffs to the defendant Buckingham, and from the defendant Buckingham to Young and Shorey. The allegation is, that those deeds of November, 1868, and January, 1869, were obtained from the plaintiffs by fraud. It is evident that this allegation of fraud is of the very essence of the bill. It is not very plain from the bill whether the fraud was used for the purpose of inducing Free to execute deeds of which he knew the contents, or whether the fraud was in inducing Free to put his name to a deed which was different from and not the same paper which he intended to execute. The first kind of fraud is particularly within the jurisdiction of the court of equity, though both are in this state available as defences at law. But I think there can be no doubt that equity has jurisdiction of both, and that, in so far as common law courts have jurisdiction of fraud, the jurisdiction of the courts of law and equity is concurrent. This objection, therefore, cannot be sustained.
The bill seeks to set aside the conveyances from the plaintiffs to Buckingham. It is evident that the deed to Young, and the conveyance from Young to Bailey and Weeks, and the deed from Buckingham to Shorey, and from Shorey to the mortgagees, — Parsons, Lombard, and Jordan, — and the deed also from Walker to Fiske, all derive their force as conveyances from this deed of November, 1868, from Free to Buckingham. If that deed is invalid, all the other conveyances are liable to be so also. That deed cannot be set aside without involving all those titles. It is plain, therefore, that the complete relief which *97 equity proposes to furnish, cannot be had without making all the parties to these deeds parties to this suit. The bill, therefore, is not objectionable on account of multifariousness.
It is apparent from the bill that the complainants — John and Hannah — have different and independent interests. The design of the deeds to Buckingham, sought to be set aside, was, to create a trust for the benefit of Hannah A. Free, and this trust, properly created, would be an independent interest in her. The deeds cannot be set aside without destroying the trust created by them for her benefit. She must therefore in some way be made a party. If she were not a party plaintiff, she would have to be a party defendant. They are not joined as parties merely for form, but they are joined as parties, i. e., are both made plaintiffs, because they have independent interests to protect. The court must take care that she is properly represented by counsel, and that her interests are not sacrificed to those of her husband. For these reasons the demurrer must be overruled.
Concurrence Opinion
The bill alleges that on October 15, 1866, John W. Free was the owner of a tract of land, being the township of Dixville in the county Coos; that he appointed the defendant Buckingham his agent, to dispose of the land in accordance with certain instructions and made deeds to Buckingham; that Buckingham violated his instructions, and acted fraudulently in the disposition of the land; that he fraudulently deeded a large portion of the land to the defendant Shorey, on March 2, 1868, and to the defendant Young, on December 17, 1868; that Young deeded to the defendants Weeks and Bailey; that Shorey mortgaged to the defendant Parsons, and Parsons obtained judgment of foreclosure against Shorey, and is now in possession, claiming to on; that Shorey also mortgaged to the defendant Lombard and to the defendant Jordan; that Parsons deeded to the defendant Walker and took a mortgage back, and that Walker mortgaged to the defendant Fiske. It is alleged that all these defendants had knowledge of the fraudulent conduct of Buckingham; and the main object of the bill is, to reach the real estate of the plaintiff, wherever it made be, in the hands of these various grantees and mortgagees; and the defendants urge that the bill is multifarious.
It is said, in Chase v. Searles,
I see no reason why the matters involved in this controversy may not properly enough, and in accordance with established precedents, be litigated in one suit. The question of multifariousness depends, in each case, upon circumstances; and much must necessarily be left to the sound discretion of the court. Warren v. Warren,
SMITH, J., concurred.
Demurrer overruled.
