116 Ala. 494 | Ala. | 1897
The correction by amendment, at any time before final decree, of insufficiency or of error, in the allegations or prayer of a bill in equity, is matter of right secured by statute. — Code of 1886, § 3449. The limitation of the right is, that by amendment, an entirely new case may not be made; nor, what is essentially the same thing, a radical departure from the cause of action as stated in the original bill; nor an entire change of parties plaintiff or defendant.. Within this limitation, all errors of omission or commission are curable by amendment. • The theory of the demurrer to the original bill was, that the purpose of
2. The demurrer on the ground of multifariousness was property overruled. It is said, that multifariousness, as an objection to a bill, is not capable of an accurate definition. It is described generally, as the joinder of distinct and independent matters, thereby confounding them ; or the uniting in one bill of several matters, perfectly distinct and unconnected against one defendant; or the demand of several matters of a distinct and independent nature against several defendants in the same bill. — Story Eq. PL, § 271. When, as in the present case, the objection is, that distinct and unconnected matters are joined against several defendants, it is not necessary that all the parties should have an interest in all the matters of controversy; it is sufficient if each defendant has an interest in some of the matters involved and they are connected with the others. — Story Eq. PL, § 271a; Kennedy v. Kennedy, 2 Ala. 609; Larkins v. Biddle, 21 Ala. 252; Fleming v. Gilmer, 35 Ala. 62; Randle v. Boyd, 73 Ala. 282; Bolman v. Lohman, 74 Ala. 507. The principal subject matter of suit is the land, and the primary controversy is, whether the defendant Truss, by his purchase at execution sale, acquired an interest in it, freed from all liability to subjection to be charged by the mortgage to Williams, and from the lien for the purchase money due from Bass. Conceding that he is without interest in, or connection with, the equities existing between the plaintiff and the defendant Clarkson, if there is right to subject the lands, he is a necessary, indispensable party, and without his presence a decree can not be rendered quieting the litigation. If the lands be subjected, the moneys derived from the sale of them, must be applied to reimburse the plaintiff the moneys he paid Williams, in discharge of the debt due from him and Clarkson, relieving Clarkson to that extent, from the duty and liability to make contribution. It would lead to a multiplication of suits, embarrassing the administration of justice, the land being the principal subject of controversy, if all the rights and equities of the parties, growing out of a series of transactions connected with it, were not capable of determination in a single suit,
4. While it may be undoubtedly true that under our decisions, had there been no notice of the plaintiff’s right, until after the levy of Truss’ execution on the land purchased by Bass, or the creation of the lien thereon by placing an' execution in the hands of the sheriff, the right of Truss would be superior to the right of the plaintiff, (McMillan v. Preston, 58 Ala. 84; Walker v. Elledge, 65 Ala. 51; Dickerson v. Carroll, 76 Ala. 377; Code of 1886, § 1846) ; yet, if Truss had actual, or con
Our conclusion is that Truss, as a creditor of Bass, can not claim to be exempt from the plain equities against the land purchased but never paid for by Bass. The execution of the warranty deed to Bass gave him no right in equity to resist the mortgage to Williams, still alive after Miller’s payment, until he had paid for the warranty. He could insist upon no relief, except upon the condition of paying his own debt, which he has never done. Truss, as succeeding to Bass’ title, can assert no greater rights to an estoppel from the warranty deed to Bass than he could himself. Estoppels are mutual and co-extensive, and any privy succeeding to. the estoppel of another only succeeds to it as possessed by the party he represents. So that Truss, claiming the benefit of the deed and covenants to Bass, as relieving his property from the Williams mortgage, is barred, as Bass was, from asserting such estoppel until the purchase money of the land is paid.
5. There is no force in the insistence, that the plaintiff’s demand against Clarkson for contribution is barred by the statute of limitations. The common debt to Williams did not mature until the 3d day of December, 1887, and until its maturity the liability of Clarkson to contribute did not arise. The prior purchase of the note by the plaintiff, while it created the liability, did not hasten the day of payment, as that was expressed in the contract into which the parties had entered. Besides, it is shown that Clarkson made a payment on the debt in January, 1888. The original bill was filed in less than six years after the maturity of the- common debt, and after the partial payment. The demand has in it no element of an open account, suits on which are barred in three years, and is subject only to the bar of the statute of six years.
We find no error in the record, and the decree of the court of chancery must, be affirmed.
Affirmed.