Opinion
(June Term, 1862.)
A bill in equity, for a discovery and an account, by one of two wards against one of two joint guardians, alleging that he had, exclusively, received the estate of the wards, in which bill the other guardian is made plaintiff, and the other ward defendant, is not multifarious.
CAUSE removed from the Court of Equity of POLK.
The bill is filed in the names of John C. Camp and Columbus Mills against William S. Mills and William A. Mooney and Sarah Louisa, his wife, alleging that John C. Camp and Sarah Louisa Mooney are the only surviving children and heirs at law of James T. Camp, who died intestate in the year 1841, and that the plaintiff Columbus Mills and the defendant William S. Mills became their joint guardians, and entered into a joint bond in the sum of $20,000, with Govan Mills as their surety; that the defendant William S. Mills took possession of the property of the wards, consisting of lands and slaves; rented out the land and received the rents, and hired out the slaves and received the hires, during the whole period of the minority of the said wards, and that the said Columbus Mills did not at all interfere in the management of the wards, or their estates, or the incomes thereof. The bill states that the said Sarah Louisa intermarried with the defendant William A. Mooney in the year 1857, and the plaintiffs are ignorant whether any settlement, partial or complete, was ever made between her and her husband and the said W. S. Mills; that the plaintiff J. C. Camp became of age in the year 1854; that they are ignorant as to what amount of rents, hires and other estate of the wards came into the hands of the said (275) W. S. Mills, and the prayer of the bill is for a discovery and for an account as to both of the wards, so that the plaintiff J. C. Camp may recover what is due to him, and the other plaintiff may be discharged of his liability on account of his joint guardianship with the defendant W. S. Mills, both as guardian for the plaintiff John C. and for the defendant Sarah Louisa Mooney.
To this bill the defendant W. S. Mills demurred, on account of multifariousness.
The cause was set for argument on the demurrer and sent to this Court to be heard.
Dickson, for the plaintiffs.
Shipp and Phillips, for the defendants.
It appears from the bill that the plaintiff Columbus Mills and the defendant William S. Mills were, in 1842, duly appointed joint guardians to the plaintiff John C. Camp and the feme defendant Sarah Louisa Camp, and to secure the faithful discharge of the duties of their office, gave a joint bond in the penal sum of $20,000. If, after the marriage of the female ward, and the coming of age of her brother, the other ward, a suit in equity were necessary for calling for an account from their guardians, we can see nothing to object, but much to approve, in having it done in one, instead of two or more suits. It is manifest that a bill might have been filed in the name of both wards, as plaintiffs, against both guardians, as defendants, in which the respective rights of each plaintiff and the liabilities of each defendant could have been ascertained upon which a decree might have been founded to secure such rights and to enforce such liabilities, with exact justice to each and all the parties. If one of the wards had declined to become a plaintiff, he or she might have been made a defendant, together with the guardians, and the same result might have been obtained. To a bill in either form, it is certain that the objection of multifariousness would not apply. Such objections may be divided into three classes of cases: 1st, those in which there are different persons plaintiffs or defendants (276) of which some have no kind of privity with others; 2dly, those in which the same party sues or is sued in different capacities; 3dly, those in which the parties are the same, and they sue and are sued in the same capacities, but several and distinct subjects are brought into question.
The present case is clearly excluded from either class; for there is no party that has no kind of privity with the others; there is none that sues or is sued in different capacities, and there are no several and distinct subjects brought into question. See Calvert on Parties to Suits in Equity, 89 (17 Law Lib., 52).
It only remains to see whether making one of the guardians a plaintiff instead of a defendant, varies the case, and we think it does not. If the allegations of the bill are true, as by demurrer they are admitted to be, no relief is sought against Columbus Mills, and there is no necessity that he should have a decree against either of the parties. He is a necessary party to the suit, in order that he may be bound by the final decree in the cause, and he will be equally bound, whether he be a plaintiff or a defendant; see Wilkins v. Fry, 1 Mer., 262. It follows that the bill is not multifarious, and the demurrer must be overruled.
PER CURIAM. Demurred overruled.