Washington City Savings Bank v. Thornton, 83 Va. 157

83 Va. 157 | Va. | 1887

Lewis, P.,

delivered the opinion of the court.

In August, 1869, Joseph Thornton and wife and William H. Dulaney, commissioner, sold and conveyed to William H. Davis a certain tract of land in Fairfax county for the sum of one hundred and fifty thousand dollars. Thornton conveyed his interest in the land with a covenant of special warranty. On the same day Davis executed to Thornton his six negotiable notes, aggregating the above mentioned sum, and payable in one, two, three, four, five and six years from their date, respectively. And at the same time he executed a deed of trust on the land to secure their payment. Before their maturity, certain of these notes were indorsed for valuable consideration to the plaintiffs, who are the appellants here.

The plaintiffs set forth these facts in the bill, and averred that the covenant of warranty in the deed from Thornton and al. to Davis inured to their benefit. They also averred that the covenant had been broken by reason of a certain incumbrance on the land, in favor of one Thorpe, for a sum exceeding twenty-nine thousand dollars, derived by the said Thorpe through and under the said Thornton, and which was in existence when and before the covenant was entered into. And the prayer of the bill, among other things, was for a personal decree against Thornton on the notes held by the plaintiffs and indorsed by him, and also for the amount of the damages sustained by them by reason of the alleged breach of the said covenant.

There was a demurrer to the bill, which was sustained by the decree complained of, and we are of opinion that the decree is plainly right.

In the first place, the position of the appellants in respect to the operation and effect of the identical covenant relied on, is met and disposed of by the decision of this court in Marbury v. Thornton, 82 Va. That was an action of covenant, brought by the substituted trustees in the deed of trust by which the purchase-money notes for the land were secured. The plaintiffs contended that the covenant had been broken, on the same ground upon which a breach is alleged in the present case, namely, the existence of the Thorpe incumbrance; and they claimed that by reason thereof they were entitled to recover damages. But the circuit court, on a demurrer to the declaration, held otherwise, and on a writ of error the judgment was affirmed.

In the opinion of this court, delivered by Judge Hinton, it was held that the plaintiffs were not entitled to recover—

First. Because it was not alleged in the declaration either that they, or those under whom they claimed, had been evicted from the land, or that they had been kept out of possession by another person or persons in possession thereof under a better title, existing at the time the deed to Davis was made.

Secondly. Because, according to the terms of the deed of trust, the plaintiffs were not entitled to the possession of the land, but were only empowered to sell and convey the same in the event default was made in the payment of the purchase-money notes.

And thirdly. Because, apart from these considerations, a covenant of warranty cannot be made to take the place of a covenant against incumbrances, and even if it could, the result would have been the same, since the Thorpe incumbrance being prior in time to the deed to Davis, the covenant would have been broken the instant the deed was-executed, and thus there would have been merely a nonassignable right of action on the part of the covenantee, Davis; citing Dickinson v. Hoomes, 8 Gratt. 353, 396; Sheffey v. Gardiner, 79 Va. 313; 2 Wait’s Act. and Def. 380.

It is needless to repeat here what was said in that case-It is sufficient to say that if the trustees in the deed of trust were not entitled to recover upon the facts alleged by them, a fortiori tlie appellants, who are cestuis que trust in the deed, cannot maintain a suit upon substantially the same grounds.

The bill, moreover, is demurrable on other grounds. The real object of the suit is to collect the notes held by the plaintiff; but no facts are alleged in the bill sufficient to constitute a foundation for the jurisdiction of a court of equity to render such a decree as is prayed for, or to. show that the plaintiffs were without an adequate remedy at law- True, it is alleged that Thornton, the indorser of the notes, is insolvent, but that circumstance does not give the court jurisdiction to decree against him on the notes, much less to sustain a bill for damages for an alleged breach of contract. Robertson v. Hogsheads, 3 Leigh, 667; Buzard v. Houston, 119 U. S. 347.

Besides, the bill is multifarious. It seeks relief in respect of several matters which are in their nature separate and distinct, and as to which the defendants are not liable or interested as connected with each other. Its object is fourfold, namely -. (1) To obtain a personal decree against the defendant; Joseph Thornton, as indorser on the notes held by the plaintiffs; (2), to obtain a like decree against the same defendant by way of damages for an alleged breach of warranty; (3), to quiet the title to a portion of the land claimed by the defendants, William H. Marbury and Thomas Thornton, and to have the land in controversy sold, as subject to the deed of trust, and the proceeds thereof applied towards the payment of the notes held by the plaintiffs; and (4), to restrain the defendants, Joseph and Thomas Thornton, from cutting timber on the land.

Whether or not a bill is multifarious depends, it is said, upon its allegations, and not upon its prayer. But as to what constitutes multifariousness, it is impossible to lay down any rule, as an abstract proposition, applicable to all cases. Each, case must, therefore, be governed by its own circumstances; and much is necessarily left to the sound discretion of the court. It is well settled, however, that a bill is demurrable in which are united several distinct rights, each sufficient, as stated, to sustain a bill against one defendant, or in which there is a demand of several matters, distinct in their nature, against several defendants, who are unconnected in interest and liability. And the present case clearly comes within this rule.

In Dial v. Reynolds, 96 U. S. 340, the bill was filed, among other things, to foreclose a deed of trust, to quiet the title of the trustee, and to remove a cloud cast upon it by the defendant. On demurrer the bill was dismissed, and the supreme court affirmed the decree, holding it to be well settled that in a foreclosure proceeding the complainant cannot make a person who claims adversely to both the mortgagor and mortgagee a party, and litigate and settle his rights in that case. See also on the subject of multifariousness, Story's Eq. Pl., §§ 271, 541 a; Stuart’s Heirs v. Coalter, 4 Rand. 74; Dunn v. Dunn, 26 Gratt. 291; Huff v. Thrash, 75 Va. 546; Hill v. Hill, 79 Id. 592; Batchelder v. White, 80 Id. 103; Gaines v. Chew, 2 How. 619; Oliver v. Piatt, 3 Id. 333, 412; Brinkerhoff v. Brown, 6 Johns. Ch. 139; 1 Bart. Ch. Pr., § 88.

Decree affirmed.