Bassett v. Warner

Equity: Multifariousness — Order in which relief will he granted — General- and special demurrers. 1. A complaint in equity By lieirs to compelí an accounting By D., wlio Bad dealt witB the estate as administrator, also asked that certain conveyances of land Belonging to tBe estate, made By D. to W., Be declared void (on tBe ground tBat W. took witB knowledge tBat tBey were in fraud of tBe estate), and tBat W.’s Beirs Be decreed to reeonvey, etc. On demurrer By W.’s Beirs, Meld, tBat tBe complaint is not multifm'ious. 2. TBe complaint also alleges tBat certain otBer lands conveyed to W. By D. (Being Bis own property), were so conveyed for tBe purpose of placing it Beyond tBe reaeB of plaintiffs, and tBat tBe conveyance, tBougB aBsolute on its face, was in fact a security for tBe payment of money, etc., and prays tBat it Be adjudged to Be sucB a security, and tBat tBe lands Be suBjected to tBe payment of any claim plaintiffs may Bave against D. on tBe final accounting. Meld, tBat until sucB accounting Bad, sBowing a Balance due plaintiffs, and judgment tBerefor, and execution returned unsatisfied, plaintiffs will Bave no equity to Bave said conveyances set aside. 3. TBe union of allegations wBicB do not sBow any ground for relief, witB otBers wBicB are sufficient, will not in any case render a complaint multifarious. 4. It is no oBjection to plaintiffs’ maintaining tBeir action, tBat tBe estate of tBeir ancestor Bas not Been assigned, nor tBat no administrator de honis non is joined witB tBem; it not appearing tBat any sucB Bas Been appointed or is necessary. 5. WBere tBere was a demurrer to tBe wBole complaint for a misjoinder of causes of action, and a special demurrer to one alleged cause of action as insufficient, an order in general terms “tBat said demurrer Be sustained” must Be reversed aBsolutely, altBougfi said special demurrer was good.

APPEAL from the Circuit Court for Wmnebago County. The facts alleged in the' complaint are substantially as follows : On the 8th of November, 1849, Harvey Jones died at Neenah in said county, intestate, leaving no widow, but leaving as his heirs at law three minor children, Gilbert 0., Abigail W., and Willard Jones, aged respectively twelve, ten and eight years; of whom the first is made defendant, the second is the wife of James Bassett and joined with him as plaintiff herein, and the third has sold his interest to said James. On the 3d of December, 1849, the county court of said county appointed Loyal H. Jones (brother of the deceased) administrator of the estate, fixing the amount of his bond at $10,000 ; and letters of administration were granted him in due form. In March, 1850, he filed an inventory of the property of the estate, showing $17,942 worth of personal property at the appraised value; and in April following he filed a supplemental inventory, showing additional personal property appraised at $4,106. On the 15th of May, 1850, on the application of said Loyal H. Jones and the defendant Drury, the county court entered of record an order appointing Drury associate administrator with said Jones of said estate ; and Drury filed his bond as such administrator in the sum of $10,000, and took out letters of administration. On the 20th of November, 1850, the commissioners to examine and adjust claims against said estate filed their report, showing debts allowed by them amounting to $11,867, which, with two debts allowed by said county court, amounting to $503, were all the debts ever allowed against said estate. • A portion of said claims, amounting to $1,617, were not for debts owing by Harvey Jones at his death 5 and Loyal H. Jones and Dru/ry well knew that such was the fact, and fraudulently permitted their allowance. The real property of Harvey Jones at his death included a large number of lots at Neenah, situate at the rapids at the foot of Lake Winnebago, and land in and around said town on both sides of the rapids, including a large water power, which, water power was not included in said inventories; also a grist mill and two saw mills. Before the appointment of Drury as associate administrator, Loyal H. Jones and the said Drury (who was a lawyer) combined together to cheat and defraud the heirs and distributees of said estate out of the property; and all their acts after their appointment were done with a view to that end. After their appointment they took possession of all the real and personal property of the estate, including said mills, and proceeded to run the mills and use the property as if it were their own, until June 17, 1853, and received more than $10,000 out of the profits of the mill business, which they converted to their own use. Before December 5, 1856, they also sold and conveyed to sundry purchasers, by virtue of two licenses of sale obtained from the county court upon certain false and fraudulent allegations, more than $29,000 worth of real property belonging to said estate, and converted the money to their own use. After the last mentioned date, they sold other real property of the estate, and received therefor large sums of money, the exact amount of which is unknown to plaintiffs, and converted the same to their own use; and in case of all such sales gave possession to the purchaser. Afterward, in 1859 and 1860, they mortgaged a large amount of real property of the estate to one Smith to secure the payment of two loans made by him, one of $5,000 at twelve per cent, interest, and the other of $4,000 at ten per cent, interest; and this was done under two licenses obtained by them from the county court by means of certain false and fraudulent allegations; and they converted said two sums of money to their own use. These two mortgages remain unpaid. They also converted to' their own use more than $10,000, received as rent for the mills belonging to said estate after the year 1853. A part of the debts allowed against the estate they permitted to remain unpaid for years, until large amounts of interest had accumulated thereon; and $1,800 thereof still remain chargeable to the estate with the accumulated interest. Said Loyal H. Jones and Drury, and said Jones, with the advice, consent and connivance of said Drury, also permitted large portions of the real pi'operty of the estate to be sold at various times for taxes, and heavy charges have been and will hereafter be incurred by plaintiffs in redeeming portions of said lands from taxes, and other portions thereof have been lost to the estate in consequence of the neglect, bad management and frauds aforesaid. On the 8th of August, 1864, Gilbert O. and Willard Jones, filed their petition in the county court for an accounting by said Loyal H. Jones and Drw'y as administrators, and they appeared before said court September 5, 1864, and the matter of said accounting was continued until November 9, 1864, when Loyal H. Jones had dejxarted the state to parts unknown, and failed to appear or render any account; and Drury appeared and alleged that he was not and never had been such administrator, claiming that the county court had exhausted its powers in that behalf in the appointment of Jones; and the court adjudged that Drury had not been legally appointed administrator, and was not liable to account as such. Loyal H. J ones left little or no property in this state, and the sureties on his administration bond are and have long been insolvent. The loss to said estate and to the plaintiffs occasioned by these conversions, maladministrations, etc., is much greater than the amount of the penal sum named in the bonds of said J ones and Drury. Drury has been frequently l-equested, but has always refused, to render an account of the assets belonging to the estate which went into his hands; and he refuses to pay to the persons entitled thereto, and to the plaintiffs, the moneys and assets of the estate justly due to them, and, with intent still further to cheat and defraud, fraudulently pretends that the estate is still indebted to him in the sum of $8,000 for services, whereas in fact he is indebted to it, and to the plaintiffs, and the defendant Gilbert O. Jones, as heirs and distributees thereof, in the sum of at least $50,000, by reason of the premises. 2. The complaint further alleges the following facts: On the 12th of October, 1852, said Loyal H. Jones and Drury, pretending to act under licenses granted by the county court, as such administrators, sold and conveyed to one Joseph Warner certain specified real property of the estate for $6,000, cash in hand, which was far less than its real value at that time. Yarious irregularities in the proceedings to obtain such licenses and in making the sale are specified, and it is alleged that the licenses were obtained upon certain false and fraudulent statements of said Jones and Drury in regard to the condition of the estate. Warner accepted possession of the lands, which was given him by Jones and Drury, and took control'of them, and received the rents and profits thereof until the commencement of this suit. At the time of the sales to him, Warner knew that they were unnecessary, and they were in fact made with a secret understanding between him and Jones and Drury, that he should be repaid with a high rate of interest the $6,000, which he loaned to them for their individrral benefit and not for that of the estate, and that he would afterward re-convey to them individually the said lands, or would sell the same and give them personally the benefit of any amount realized therefor over said $6,000, with interest, and his outlays for taxes, with like interest thereon. After the lands were conveyed to him, Warner appointed Drury, or Jones and Drury, his agent, or agents, to take charge of them, pay the taxes thereon and lease and sell them; and Drury, or Jones and Drury, continued so to act until this suit was commenced. Knowing that Warner’s title to the lands was fraudulent, he and his said agents fraudulently permitted them, or a great portion of them, from time to time to be sold for taxes, and caused tax deeds to be issued thereon either to themselves or to some friend or friends, in trust for them and for their benefit. And said Drury and other defendants falsely and fraudulently pretend that they have a good title to said lands by virtue of said tax deeds. Said Loyal H. Jones and Drury, or one of them, pretending to act as agent or agents for Warner, have sold and conveyed portions of said lands so conveyed to Warner, and as purchase-money for the same, Warner or his said agent or agents have received a' large amount of money, the exact amount of which is unknown to plaintiffs. And in execution of the said fraudulent and secret understanding, Joseph War-, ner, on the 21st of April, 1862, executed and delivered to •Loyal IL. Jones and Drury, as individuals, another agreement to convey to them said property for $16,796, which sum was ascertained and fixed by counting said $6,000 at twelve per cent., or some higher rate of interest, and adding thereto the taxes and charges upon said property paid up to that time by Warner. 3. The complaint further alleges, that, as a security for the payment of the $16,796 last mentioned, Drury has conveyed to Warner certain described lands in Pond du Lae and Outa-gamie counties, being all the real estate of the said Drury in Wisconsin; that the deeds of conveyance are absolute on their face, but were made “ only as pretended collateral security to the fulfillment of the agreement contained in said contract with Warner; and that such conveyances were so made by said Drury for the purpose of putting his property out of the reach of the heirs and distributees of said estate,” etc.; that the conveyances were made for no good or valid consideration, and said lands are still owned by Drury, and are occupied and enjoyed by him as his own; and he has no other property that can be reached to satisfy any claim plaintiffs may have against him. On the 9th of November, 1864, Loyal H. Jones and Drury were removed by the county court from their office as such administrators. All the allowed claims against the estate have been settled, and there is property left belonging to it, and never sold, “ sufficient to pay all just claims against and settle said estate.” On tbe 12tb of August, 1865, Loyal H. Jones died intestate, leaving tbe defendant Leona/rd C. Jones, bis son and only beir at law, and leaving little or no property to tbe knowledge of plaintiffs. On tbe 31st of December, 1865, Joseph Warner aforesaid died intestate, leaving certain persons named bis heirs at law, who are made defendants herein. Tbe prayer is as follows: (1) That Drw'y be adjudged to render an account of bis acts and doings while acting or professing to act as administrator as abo.ve stated; also an account of all moneys and assets of said estate received by him, or by him jointly with Loyal II. Jones; also an account of tbe rents and profits of said mills and other real property of said estate; also an account of moneys and assets received by Loyal H. Jones, and concealed, wasted, misapplied or converted by said Jones, as set forth in the complaint, under tbe advice or with tbe consent, connivance or assistance of Drury j also an account of all the lands of tbe estate which bad been sold by Drury, or by him jointly with Loyal H. Jones, or by tbe latter under bis advice, and with his consent, connivance and assistance, with the dates of such sales, tbe particular portions of lands so sold, tbe amount of tbe purchase money thereof paid or agreed to be paid by the purchasers, with tbe interest thereon; that said Drury be adjudged to be liable therefor to these plaintiffs to the extent of their distributive share therein; and be adjudged to pay plaintiffs the amount found due them from him on said accounting, etc. (2) That the lands of Drury, conveyed to Warner, in Pond du Lac and Outagamie counties above mentioned, be adjudged to have been so conveyed as collateral security, etc., and for the purpose of putting them out of the reach of the heirs of said estate. (3) That said conveyances to Joseph Warner of lands of said estate be adjudged fraudulent and void, and be annulled; that an account be taken of tbe rents and profits of said lands since sucb con vejan ce; also of tbe purchase, money received by Warner, or by any person for him, on the sales of any such lands sold by him (which sales the plaintiffs offer to confirm); also an account of taxes on such lands, paid by Warner or by any person for him; that if, upon such accounting, any sum shall be found due Warner on account of such taxes in excess of such rents, profits and purchase money, then said lands of Drury, in Fond du Lac and Outagamie counties, or so much thereof as shall be necessary, be sold, and the proceeds applied to pay the same, and thereupon (or in case such proceeds prove insufficient, then upon payment of the balance of such sum by plaintiffs) the defendants (or persons claiming under them since the commencement of this action) be adjudged to execute and deliver to the plaintiffs a deed or deeds conveying all interest acquired by Joseph Warner or any of said defendants under the conveyances to Warner from Loyal H. Jones and Drury, or acquired by means of tax titles; or, in case the court should refuse to declare fraudulent and set aside said conveyance to Joseph Warner of lands of said estate, and shall find that any of said defendants are entitled to receive irom the plaintiffs ■ any sum of money on account of said contract between him and Loyal H. Jones and Drury, then that so much as shall be necessary of Drury,s said lands in Fond du Lac and Outagamie counties be sold, and the proceeds applied to the payment of said last mentioned sums, and that thereupon (or in case of any deficiency in the proceeds of such sale, then upon payment of said last mentioned sum, or the balance thereof by the plaintiffs), said defendants, etc., be adjudged to execute and deliver the deeds aforesaid. (4) That the residues, if any there be, of Dru/ry s said lands, or so much thereof as necessary, be sold, and the proceeds applied to the payment of any judgment that may be entered in this action against Drury for moneys due from him to plaintiff. 5. If the court shall refuse to order a sale of said lands of Drury, or if they shall not produce any proceeds to be applied as before prayed, then that it may be adjudged that, upon payment by plaintiffs of their share of any amount that shall be found due any of the defendants on account'of said Warner’s contract, or on account of taxes paid by or for him on said lands of the estate sold to him, the defendants, etc., execute and deliver the deeds before prayed for. There is a further prayer for general relief. The Warner heirs demurred to the complaint, on the grounds, 1. That the court had no jurisdiction of the subject of the action, for that the county court of said county had acquired and still had exclusive jurisdiction thereof. 2. That the administrators of the estate of Harvey Jones, deceased, should have been joined as plaintiffs. 3. That the administrators of the estate of Joseph Warner, deceased, and the several persons who had purchased portions of the lands conveyed to him by the administrators’ deeds mentioned in the complaint, should have been joined as defendants. 4. That several causes of action were improperly joined. 5. That the complaint did not state facts sufficient to constitute a cause of action. They further demurred severally (on the same grounds except the fourth), first, to the alleged cause of action for annulling the administrators’ conveyances to Joseph Wcwner; and secondly, to the alleged cause of action for subjecting the lands of the defendant Drury, in Pond du Lac and Outagamie counties, to the payment of the plaintiffs’ claim against Drury. The court made an order in general terms, “ that the said demurrer be, and the same is hereby sustained; ” and the plaintiffs appealed. 1. Drury, having acted as administrator for over fourteen years, must be bound to account somewhere. . Having assumed to act as a trustee, he is liable as such. 3 Leading Oases in Eq. *733, note, and cases there cited. Such a case is peculiarly within the jurisdiction of equity. 1 Story’s Eq. Jur. § 465. The circuit court has jurisdiction to compel an administrator to account. McLaehlan v. Staples, 13 Wis. 448; JELart v. Ten Eyck, 2 Johns. Oh. 62; Rogers v. King, 8 Paige, 210; BrooJcs v. Gibbons, 4 id. 374; Allen v. Clark, 2 Blackf. 343; iWash-burne v. Dorsey, 8 Smedes & M. 214. 2. The complaint does not show that administrators de bonis non have been appointed. It does show that all allowed claims against the estate have been settled, and therefore no persons except heirs and dis-tributees have any interest in the suit. Such administrators, if there were any, would not be proper parties as against Drury, for they could only administer the estate not already administered (E. S. ch. 99, §§ 14, 15), and “ a devastavit constitutes such an administration as places the goods (and the value of them) converted or wasted beyond the authority of an admin-4 istrator de bonis non.” Young v. Kimball, 8 Blackf. 167. The liability is only to creditors and distributees. Rowan v. Fitzpatrick, 14 Ill. 1, and cases there cited. Nor would such administrators be proper parties against the Warners. E. S. ch. 100, § 16; Barker v. Barker, 14 Wis. 131; Webster v. Tibbits, 19 id. 439. 3. It does not appear that there are any administrators of the estate of Joseph Warner; and if there were, they have no title to the land whose reconveyance is sought, nor are they trustees thereof. Ba/rker v. Barker, 14 Wis. 131. 4. The purchasers from Warner of portions of the land conveyed to him are not proper parties, because no relief- is sought against them. 5. These causes of action in the complaint are not improperly joined. To this point counsel cited Story’s Eq. PI. §§ 530, 539; McLaehlan v. Staples, 13 Wis. 453; Attfy Gen. v. Gradoclc, 3 Mylne & C. 85 ; Campbell v. Maekay, 1 id. 603 ; Garroll v. Roosevelt, 4 Edw. Ch. 211; Bri/nkerhoff v. Brown, 6 Johns. Ch. 157; Fellows v. Fellows, 4 Cow. 682; Morton v. Weil, 33 Barb. 30; Putnam v. Sweet, 1 Chand. 286; Winslow v. Dousman, 18 Wis. 456; Blake v. Va/n, Tilborg, 21 id. 672. Suppose we proceed against Drury alone for an accounting. If he converted the $6,000 received from Warner to his own use, as alleged, shall he now account for it to the plaintiffs? Does that not depend upon the equities to be adjusted between the plaintiffs and these defendants, whether we shall have judgment for it or not? If we receive it from him, these defendants might well say we have ratified the sale to Warner. If we do not, and the court should say we may redeem the land, but are only entitled to have the deed declared a mortgage, then we lose it. The causes of action “grow out of transactions connected with the same subject of action;” and those transactions are all one connected series of frauds in the management of a trust, in which all the defendants are implicated, though not to the same extent. 6. Under the Code, “ redundant and irrelevant matter, and demand for unsuitable relief, do not render a pleading subject to demurrer.” Bishop v. Edmbston, 16 Abb. 466; The People v. The Ma/yor, ete., 28 Barb. 240. 1. Drury cannot be charged as executor in his own wrong, but is responsible, if at all, as a wrong-doer; and the only remedy against him is by an action at law. B. S. ch. 147, § 17. 2. Chancery will not question, in favor of a creditor, the disposition made of his property by an insolvent debtor, until judgment obtained and execution issued. Adler v. Fen-ton, 24 How. (U. S.) 407; Day v. Washburn, id. 352; Montague v. Horton, 12 Wis. 606; Al/my v. Platt, 16 id. 169; Reubens v. Joel, 3 Bern. 488; Wiggins v. Armstrong, 2 Johns. Ch. 144; Brmkerhoff v. Brown, 4 id. 671; Beak v. Burdett, 1 Paige, 305. 3. The judgment of the court of probate is final, unless appealed from, at least as to the regularity of the proceedings therein. Laws of 1861, ch. 127; Qrignoris Lessee v. Astor, 2 How. (U. S.) 319. 4. Plaintiffs have affirmed the contract of. sale of tbe lands of tbe estate 'in question, witb a full knowledge of tbe fraud. They ask judgment against Drury for tbe jrarcbase money of these lands; and they expressly offer to affirm tbe fraudulent sale as to those of them which have been sold by Warner. In order to avoid tbe sale, upon discovering tbe fraud, they must do it immediately and unconditionally, and must avoid or affirm tbe whole contract. Weed v. Page, Y "Wis. 503; McLachlan v. Staples, 13 id. 448. 5. Tbe estate has not been assigned. Tbe title to the personal property, and tbe right to the possession of the real estate, is in the administrator de bonis non, if one has been appointed; and if not, tbe property is in tbe custody of tbe probate court, awaiting such appointment. E. S. cb. 100, § Y; id. ch. 103, §§ 2, 4; id. eh. 11Y, §§ 1, 6; Edwards v. Evans, 16 Wis. 181; 1 Williams on Ex’rs, 546. In case of tbe removal of an administrator, tbe probate court is required to appoint another. E. S. cb. 99, §§ 14, 15. The judgment in this suit would not be a bar to an action by tbe administrator de bonis non. 6. Tbe county court has acquired and still bolds exclusive jurisdiction of tbe subject matter of tbe action. Y. Tbe several causes of action set out in the complaint are not of tbe same class or character, nor do they affect the same parties; and they require different places of trial. Gardner v. Ogden, 22 N. T. 32Y; E. S. ch. 125, §§ 29, 30; id. cb. 123, § 1; Sauer v. Stem-bauer, 14 Wis. Y1; Walton v. Goodnow, 13, id. 661; Borden v. Gilbert, id. 6Y0.