Moore v. Moore

17 Ala. 631 | Ala. | 1850

DARGAN, C. J.

The view we take of this case renders it unnecessary to examine the questions submitted by the argument of counsel, for it is a familiar rule that when two join in a bill as complainants, both must have an interest in the subject matter in controversy and both be entitled to relief, otherwise the bill will be dismissed. — Story Eq. Plead. 392 ; 2 Sim. R. 237; Wilkins et al. v. Judge & Dunklin, 14 Ala. 135. If we could admit that Benjamin T. Moore was entitled to an equitable off-set, growing out of the decree of the Orphans’ Court in favor of Pryor, who was a legatee under the will of William Barrett, and whose interest he had purchased, yet Gabriel E. Moore has not a scintilla of equity, nor is he entitled in any manner to relief. He as principal executed the note, and Benjamin T. as security. Gabriel E. owes the debt, and no reason whatever is shown why he should not pay it. It is true the bill alleges, that, at the time of the making of the note, Benjamin T. Moore, the security, was indebted to Gabriel E. Moore, ánd that it was agreed between them, that Benjamin T. should pay it in discharge of his indebtedness to Gabriel E. Moore, the principal in the note. This agreement, if proved, might have given him a right to join in the bill, for it would have changed the relations between the parties to the note, and made Benjamin T., the security, stand as principal. But this agreement is denied by the answers, and there is no proof whatever to establish it. The case made by the proof is, that Gabriel E. Moore is the principal in the note and has no defence against it; Benjamin T. Moore is the security, and he insists on an equitable set-off against the payee. If this was allowed, Gabriel E. Moore would still owe the debt, for it would, then be due to Benjamin T. the co-plaintiff, and no fact is proved that gives to Benjamin T. an equitable right to require Gabriel E. Moore to pay it to him. Gabriel E., the principal in tile note, has therefore no interest in the Suit, nor is he entitled.'to any relief. The consequence is, that the decree dismissing the bill must be affirmed.