Kunkel v. Markell

Weisel, J.,

delivered the opinion of this Court.

The three single bills mentioned in the receipt of Jacob M. Kunkel to Francis Thomas, dated February 21st, 1853, and set out in the hill in this case, passed into the hands of said Kunkel, who agreed with said Thomas to apply the proceeds to the expenses and debts of Thomas specified therein, and in the order therein stated. Whatever remained resulted to said Thomas, increased by the payment of any of said debts from other sources. This assignment to Kunkel was an absolute one, for the purposes expressed in the receipt.

The mortgagees in the three mortgages exhibited with the bill, who were the complainants below and are the appellants in this case, took a conditional assignment of this resulting trust, the mortgages embracing also certain real ©state ; all conveyed to secure the payment to the mortga* *405 gees of the several debts of said Thomas mentioned in the mortgages, provided they were not paid by Thomas at the times named in said mortgages respectively. The mortgages were given at different times in 1856, thus creating rights of priority between the mortgagees, to the premises and rights mortgaged.

The bill, as has been stated, was filed by the mortgagees in September, I860, after the times limited in the mortgages for the payment of the debts secured by them, ( all which matured in 1857,) against the said Jacob M. Kunkel, simply alleging and setting forth the receipt he gave, and that he, Thomas, had secured the payment of the notes or single bills therein mentioned, by a lien on certain lands in Allegany county; and that said single bills had long since been actually paid to said Kunkel. It also alleged the execution of said three mortgages, exhibiting copies from the records as parts of the bill. It charged that the sum of three thousand dollars due to Kunkel, and to be paid by the proceeds of the single bills in the receipt, had been paid in whole or in part by other means, and that the fund in his hands had been proportionably increased thereby; also, that Kunkel had used the fund outside of the trust, and was liable for interest on it from the time he so used it ; and that he had refused, and still refused to account to the complainants for said fund.

Other parties, creditors of Thomas, whose debts were to be paid with the proceeds of the single bills mentioned in the receipt, were made parties defendants, with Kunkel, to the bill. Thomas himself was not made a party.

The hill prayed for an answer from Kunkel on oath to these matters, “and particularly that he answer, when the said trust fund, and the amount thereof was paid to him,” and “whether he had used, outside of the trust, the said trust fund, as charged in the bill; also, that the other defendants should answer the several matters and things *406 stated and charged in the bill, and that the complainants might have such further or other relief as their case might require.

The only party appearing to the hill was Mr. Kunkel, who demurred to it for the causes set forth in the demurrer, which was overruled by the Court below, and he was required to answer. From this order this appeal was taken.

The demurrer is in the usual form of a general demurrer, with a protestation, and assigning special causes of objection to the bill as apparent on its face. These are, that the complainants have not, by proper averments, stated a case that entitles them to relief against the defendant, Kunkel ; that they have not charged that at the time of filing their bill, any sum or sums of money was due to them, or any of them, by Francis Thomas, so as to entitle them to the relief prayed ; and that said Thomas, and ML P. O. Hearn, (the maker of the single bills assigned to Kunkel,) were necessary and proper parties to the bill.

It is very apparent, that the complainants stand in a different relation to Kunkel from that of the other creditors of Thomas, who were to he paid with the proceeds of the single bills mentioned in the receipt. These were cestuis que trust of the fund, and could resort to Kunkel, as trustee, for an account and application of the fund to their claims. But the complainants do not stand in that relation. They are not cestuis que trust, but assignees by way -of mortgage, to whom Kunkel is to pay Thomas’ interest an the fund only in the event that Thomas himself had not paid the debts to secure which he had given the mortgages. They had but a lien upon the resulting trust in the fund, by virtue of the mortgages, and in asserting this lien, or stating a proper case against Kunkel for relief in respect to it¿ certain averments and parties became necessary. And ¿he question now is, does this bill present a proper case for *407 the relief prayed ? If not, the demurrer was properly interposed.

The bill seeks to appropriate to the complainants, by virtue of the mortgages they hold, the resulting trust fund of Thomas in the hands of Kunkel. It is, therefore, a bill to foreclose the mortgages as to that portion of the fund. Thomas, the mortgagor, has a direct interest in the subject matter, and is to be affected by the decree. If he has paid the debts secured by the mortgages, or if the other mortgaged property has been applied in their extinguishment, the complainants have no longer any right to the fund ; and Kunkel is to be protected by the decree as against any claim of Thomas, if the fund is to be decreed to the complainants. In other respects, also, Thomas, the real debtor, is interested in any account to be taken of the fund.

He is, therefore, as mortgagor, whose interests are to be affected or concluded by the decree, a necessary party. Entire justice cannot be done without Mm, and he cannot, therefore, be dispensed with, as a merely nominal or formal party. The principle is well established that upon a bill to foreclose, the mortgagor is a necessary party, unless the hill discloses a state of facts or a condition of things, ( as, for instance, the insolvency of the mortgagor,) which would render the making of him a party unnecessary. Such a cause for exemption is not alleged in this case. Story’s Eq. Pl., 193, 195. Worthington vs. Lee, 2 Bland., 678. We are clearly of opinion that Thomas should have been made a parly defendant to this bill; but we do not discover any interest in O’Hearn which would require him to be made a party. Ho was the debtor of Thomas whoso single bills were assigned in trust to Kunkel and paid to him, as alleged in the bill, and has no interest in the subject matter of this suit.

Another objection raised by the dennirrur to this bill *408 that it does not sufficiently state a case for the relief prayed, and that it omits material averments, which the admissions of the demurrer do not supply ; that all that is stated in the hill may be admitted, as is done by the demurrer notwithstanding the protestando, and yet the complainants have stated no case against the defendant, Kunkel, for relief. In this objection we also concur.

It must he borne in mind that this is not the bill of the cestuis que trust, entitled absolutely to the fund under the receipt, calling upon the trustee to account and pay, for which purpose a bill by them constructed as this is, might he sufficient, hut it is by parties, mortgagees, holding a different relation, both to the fund and the defendant, Kunkel; and it is necessary for them, as in all cases, to state such facts or make such averments, generally and substantially, not minutely or in detail, as would entitle the complainants to the relief they ask against the party to bill. These cannot be supplied by any extraneous matter, nor will a prayer for general relief aid the omission. The claim of the party must be stated with clearness, so as to íeave nothing to uncertainty, conjecture or vague inferences. As the complainants have only a contingent interest in the trust fund that resulted to Thomas, dependant upon the non-payment of the debts secured by the mortgage lien upon it, it became necessary for them to aver that those debts continued to exist and were unsatisfied, either in whole or in part; and, also, to state any other facts which would entitle them to participate in this fund. Without such a state of facts, equity could not properly afford them relief; and the necessity or obvious propriety of such distinctive averments, is a further reason why the mortgagor should have been made a party. The bill is deficient for the want of these averments. See, also, West vs. Hall, 3 H. & J., 221 . Chalmers vs. Chambers, 6 H. & J., 29. Ringgold vs. Ringgold, 1 H. & G., 11 . Town *409 send vs. Duncan, 2 Bl., 45 . Lingan vs. Henderson, 1 Bl., 236 . Berry vs. Pierson, 1 Gill, 234 . Mewshaw vs. Mewshaio, 2 Md. Ch. Dec., 15 ; and Young vs. Lyons, 8 Gill, 169 .

( Decided February 21st, 1867.)

We do not think the bill is objectionable on the ground of multifariousness, which was urged by the appellant’s counsel in his brief and in the argument. In this case the interests of the several complainants, though distinct and upon distinct conveyances, are yet of a similar nature, against the same defendants, and in relation to the same subject matter, and the relief prayed is the same to all in character. In such case the objection of multifariousness does not apply. Stcmj’s Eq. PI., secs. 285, 286, 531, 533. This case, in this respect, is similar to that of a creditor’s hill in the Maryland practice. See, also, Thomas vs. Doub, 8 Gill, 7 . Young vs. Lyons, 8 Gill, 166 . Williams vs. West’s Adm’rs, 2 Md. Rep., 198. Peters vs. Van Lear, 4 Gill, 263, 264 . Our views on this point are supported by the case of Wilson vs. Wilson, decided by this Court at April term, 1865, and adverted to in the argument of this case.

The order of the Court below overruling the demurrer, and requiring the defendant to answer, will be reversed for the reasons assigned in this opinion ; hut as the purposes of justice may be advanced by permitting further proceedings in the cause by amendment of the bill, making additional parties or otherwise; in conformity with this opinion, the cause will be remanded to the Circuit Court for Frederick county, as a Court of Equity, for such further proceedings as shall be necessary for determining the cause upon its merits ; the appellant to have his costs of this appeal; all other coots to abide the event of the suit.

Order reversed and cause remanded for further proceedings.