McGowan v. McGowan

48 Miss. 553 | Miss. | 1873

SlMRALL, J. :

The demurrer was sustained and the bill dismissed on the ground of multifariousness. In Roberts et al. v. Starke et al., 47 Miss., we examined with some care this doctrine upon the authorities. Whilst some general rules have been established by them, so few cases arise in which they clearly and fitly apply, it is necessary that each instance shall stand very much on its own circumstances. Among the rules deduced from the cases is this: where several subjects are introduced, if, as to the subject-matters and the relief, all the defendants are connected, though differently, with the entire subject in dispute, the bill is not multifarious. Roberts v. Starke, supra, and authorities cited. If the complainants claim under one title, they may join several defendants who claim the estate under distinct and separate purchases of parcels of it. 2 How. (U. S.) 602; 7 S. & M. 630.

If this bill is free of the objection taken to it, it is upon the one or the other of these grounds.

The will of Hugh McGowan, deceased, is made an exhibit to the bill; but, in testing the sufficiency of the bill upon demurrer, the will cannot be referred to, either to aid, or in derogation of its allegations, except so far as its provisions are stated in the pleading. The hill makes no allusion to the power which the will gives to the executors to sell property. We have not thought it proper, in the attitude of the case on this appeal, to consider what, if any, curative effect that' clause of the will might have on a defective sale made under probate decree.

The complainants charge that, in reality, there was no balance due from the estate to the executors, nor was the estate in that condition of indebtedness that justified a sale of the real estate; they further charge, in substance, that the sale made by the executors, at which the executors were also the virtual purchasers, was the part of a fraudulent scheme by which they consummated a purpose to become the owners, and acquire the title without an adequate 'consideration. They specify sundry false or excessive credits which had been allowed to the executors in their settlements in the probate court; they enumerate the several persons who were purchasers of parcels of the land at executors’ sale, but who were the mere agents employed to buy in the lands from themselves. •

The especial relief sought by the bill is a cancellation of. the sale made by the executors virtually to themselves, as part of the covinous means used by them to create a necessity for sale, and, thereby afford them an opportunity to buy, was the fabrication of false and exaggerated claims against the estate in their own behalf or in favor of others.

It is argued that the multifari#usness consists in blending a case which looks to a purgation of the accounts settled in the probate court, as to which the executors or their legal representative are only necessary parties, with a case for vacation and annulment of the sale in which the executors became personally interested in the purchase, but in which other parties who bought parcels of the land at the' sale are also interested. If these third parties, who bid in parcels of the land, bid for the executors, upon the agreement that the executors were to be the recipients of the title and ultimate owners of the property, they occupy no better position than the executors for whose benefit the confederation was formed. The complainants all have a common interest and title as against all the defendants who have claim to the land, although some others became, by later purchases, inter-. ested in part of it. All the defendants trace their title back to a common source — the executors’ sale and conveyance. If that title was faulty, and failed to pass, then it remains with the complainants, who may assert it against all of them.

All the defendants are incidentally interested in the question, whether the executors set up in the probate courts simulated claims of liability against the estate; for the allegation is, that this was conceived in fraud, so as to impose upon the court the apparent necessity to decree the sale. If«the sale was invalid because of some defect in the judicial proceedings, or for non-conformity to the decree, then the title of all who claim, by tracing their right back to the judicial decree and the sale under it, fails. If, however, that was a valid decree, and the sale was a good execution of it, except for some secret fraud and covin unknown to purchasers and not participated in by them, then their title could not be disturbed by the complainants.

The sale, is alleged in the bill to be invalid for two reasons; first, for the fraud in which the defendants participated; second, because the decree directed the sale to be made for cash, whereas it was made on a-credit of twelve months, and was so reported to the court. Manifestly, a sale made in palpable violation of the decree was made without authority. The executors were acting in execution of a power or license conferred by the decree. They had no discretion, and could not dispense -with the terms prescribed by the court and substitute conditions of their own.

If the bill had the two-fold aspect and purpose ascribed to it by the appellee, to wit: to review and correct the decree of the probate court on the final settlement, and to set aside and vacate the sale for fraud, and for not being made in conformity with the decree, then there would be great force in the objection that it was multifarious. The bill of review may be and has been barred by the expiration of two years since the date of the decree, and, moreover, some of the defendants would have no interest to litigate that subject. If there were no bar attached, the sale might be impregnable, and yet the accounts might be re-stated after being purged.

We do not understand that the complainants seek a technical review of the final and annual settlements. The allegations of improper and exaggerated credits allowed are charged as acts of fraud, by which they could plausibly seek a sale of the land, and by reason whereof they could absorb it, without parting with money. Certainly, the chancery court could not now entertain a bill of review. We think that this bill may be vindicated on the principles decided ’in Nevitt v. Gillespie, 1 How. 110; Butler et al. v. Spann, 27 Miss. 233; Forniquet v. Forstall, 34 ib. 96. The latter case was in many of its circumstances similar to this.

If the executors had made the sale under the power conferred by the will (which is very broad), or if that power could be referred to and applied to the sale, so as to cure the infirmity which arises from non-compliance with the decree, it would still be obnoxious to the imputations of fraud made in the bill, by means whereof the executors invested themselves individually with the title.

The executor or administrator is but a trustee acting for the interests of creditors and distributees. The creditors have the first and. highest claim upon property. In selling for the payment of debts, it is the especial duty of the executor or administrator to protect the creditors by using effects to get the best possible price. They cannot buy at their own sales, directly or through another; nor can they enter into an arrangement, or put another under a trust and confidence to purchase so that they may derive a benefit or interest or profit. Parson v. Moreland, 7 S. & M. 609. The law discountenances all shifts, devices and means by which property may be turned aside from the highest bidder at a competing sale; nor, if the trustee or executor sells pursuant to a power, can he bring others into his confidence, by reason whereof a private sale is made to them on the secret understanding that he is to take an interest or benefit. That places him in the predicament where his duty conflicts with his self interest, so that those to whom he ows fidelity and good faith may become the losers.

We think the complaintants are entitled to have their bill answered.

Decree reversed, judgment here overruling demurrer, and cause remanded with leave to defendants to answer in forty days.