14 Fla. 59 | Fla. | 1872
delivered the opinion of the court.
This complaint is filed against defendants Howard and Moody, as administrators of the goods and chattels of E. D.
To the -complaint the' defendants interposed a demurrer, specifying several grounds of objection. The Circuit Court, after argument, overruled the demurrer, with leave to the-defendants to answer. From this order the appeal is-prosecuted. '
While there are several grounds embraced in the demurrer contained-in the return to this , court, one only was urged or relied upon here.-
This ground is because several causes of action are improperly united in the complaint, in that it embraces a demand against the estate of E, D. Howse, an action to set aside and declare void a decree in chancery rendered against E. D. & C. C. Howse, and in favor of Little Berry Branch,, an action to set aside a sale of property of the estate of E. D. Howse, made under judicial prodess, and an action tc recover damages against the sureties upon the bond of the administrators of ’¡said Howse.
In order to understand this demurrer, it is -necessary testate the allegations contained in the. complaint. They are substantially that Edward D. Howse died in 1867 owdngplaintiff the sum of $6,528, which sum was due since January, 1857; that defendants' Slowman W. Moody and James H. Howard were appointed in July, 1868, administrators of the goods and chattels, &c., of the said Howse, and that,
It may not be inappropriate to remark here that the prayer of the complaint is in some respects defective. If Inhere áre other creditors of equal degree, the whole of this-5 property should not be applied to the payment of this claim* alone. 4 John. Chy., 640.
From the foregoing statement it is seen that in this action* the plaintiff seeks to establish his debt against Howse, ancE to subject certain property to sale. This property, he alleges, has been made the subject of sale under decrees which are fraudulent and collusive; that the property was purchased in at nominal prices for the benefit of the debtor by parties aware of the fraud, and that the proceedings were conceived and designed by the parties thereto to benefit the .debtor at the expense of his then existing creditors; that the defendant in this decree was at the time indebted to him (the plaintiff), and that the plaintiff in the decree was not a bona fide creditor, and that the property has never been impressed with any equity superior to that of the creditor plaintiff.
It is apparent from the case stated that all of the deféndants were not jointly and equally concerned in each distincr fraudulent act charged. There was a series of acts in this well conceived net-work of fraud, all terminating in the deception and injury of the plaintiff. The defendants performed different parts in the drama. These acts affected the property of the debtor — some • the personal property, others the real estate. The object of the plaintiff in this complaint is to get the assistance of this Court in unraveling this'net-work of fraud in respect to each species of property,
The right of -the plaintiff is against the whole property, and his'¡right against all portions of it is of the same nature. The decree in chancery and the sale thereunder are but acts of fraud, whieh are sought to be set aside in order to enforce this general right. In fact, the right to set aside these proceedings can only co-exist with an equity affecting the property which was .the subject of them. There can be no ,such thing as' an equity or right to set aside' these proceedings distinct and independent of rights and equities attached -to the subject-matter that they affect. Theresu.lt is that these are not several causes of action, but are acts which, connected with the debt due plaintiff, constitute a ground for one action ■alone. There can be no doubt that the debt'eould be proved and the property reached in the same action' in a case like this, notwithstanding the decree and' sale, anterior to the Code, (4 Mon., 580, 83; 4 John. Chy., 620, 631; 2 Black., 421; 7 Cranch, 89; 6 John., 139;) and there is no doubt that it -can be reached in this action under the Code. 17 New York, 593.
What has been said' disposes-of all the grounds of the demurrer except the objection that the complaint unites with the' cause of action against the administrator and the parties Moody and-Chandler, a distinct and' separate cause of action ■ against defendants Agnew and Roberts, arising out of their relation as sureties upon the bond of the administrators Moody and Howard. It is "true that these fraudulent proceedings and the fraudulent sale of the 'property which was the subject of them is one cause of action, and the liability of the sureties upon the bond of the administrators for any breach of its condition is another cause of action. We have here, therefore, in this complaint several'causes of action, and if they have been improperly united the' demurrer is well taken. Par. 5, § 95, p. 35, Code.
The Code provides that the plaintiff may unite in the same complaint several causes of action, whether they be such as have heretofore been denominated legal or equitable, ■or both, in cases where they all arise out of the same transduction, or transactions connected with the same subject of action. The several causes of action which may thus be. united, however, are restricted to causes affecting all the parties to the action; and it is required that the. several causes •of action must be separately stated. Par. 1, § 117, pp. 39 and 10, Code. In this case each cause of action does not. in itself affect all the parties. It is not sufficient -that some of the defendants be affected by each of them: All of the defendants must be affected by each of them to warrant the union of them in one suit. The defendant Chandler in this suit has no connection with the sureties, nor have the sureties upon this bond any connection with the cause of action resulting from the fraudulent acts- of the intestate and the acts of the other parties, in so far as they relate to the first cause of action stated. The. setting aside of these proceedings and the selling of this property lias no necessary connection with the liability of the surety upon the administration bond. The plaintiff here attempts to exercise two separate and distinct rights, oue to sell the pi’operty. to satisfy his debt, the other to hold these sureties liable for a breach of the condition of their bond. The equitable relief he seeks against one set of defendants, the legal against another set,, not including all of the others.
There is here an improper union of two causes of action. Mr. Justice Comstock, speaking for the Court of Appeals of New York, (17 N. Y., 607,) uses the following language in reference to this provision in the Code: “ The authors of the Code, in framing this and most of its other provisions, appear to have had some remote knowledge of what the
The order appealed from is reversed, and the defendants should have .judgment upon the demurrer, with leave to the plaintiff to amend on payment of costs.