Opinion
(December Term, 1853.)
Where a demurrer for the want of parties is sustained, the bill will not be dismissed, but stand over with leave to amend, and be transmitted to the Court below, where the amendment will be made.
CAUSE removed from the Court of Equity for DUPLIN, Fall Term, 1852.
Winslow and W. A. Wright, for plaintiff.
D. Reid, for defendants.
William Kornegay, Sr., died in 1837, leaving certain slaves to his wife, for life, or during widowhood, with a limitation over, after her death or marriage, to his five children, Nancy, Kitty E., (41) Thomas, Winefred and William Henry, to be equally divided among them. Nancy married William Houston, is dead, and no administrator has been appointed.
The bill was filed by Zaccheus Smith, administrator of Winefred Kornegay and William Henry Kornegay, against Kitty Kornegay, the widow, Blaney Williams and William Kornegay, alleging that the widow, with the assistance of the two other defendants, were selling the slaves; and praying that a writ of sequestration and injunction might issue against said defendants. The demurrer was filed, set down for argument, and by consent of parties transferred to the Supreme Court.
The demurrer in this case is for the want of parties. It is a general rule in Equity that all persons interested in the relief sought must be made parties, either plaintiffs or defendants, because a decree is asked for, and not a decision only, and because Equity seeks to arrange all the matter before it, and does not tolerate the splitting up of suits. It is also proper upon another ground connected with the last reason assigned, except in excepted cases, growing out of convenience and necessity. No one is bound by a decree to which he is not a party, but, as stated, the rule admits of exceptions. Thus, when the parties are too numerous, or are out of the jurisdiction of the Court, and that fact is stated in the bill. Adams Eq., 312-323; Calvert on Parties, 17-19.
The bill in this case is defective. It sets forth that William Kornegay, by his will, bequeathed to his widow, the defendant Kitty Kornegay, during her lifetime or widowhood, several negroes, with the (42) remainder to her five children, to wit: Nancy, Kitty, Thomas, Winefred and William Henry; that Nancy married William Houston, and is dead, and no administration upon her estate has been had, and that Kitty is an infant. Neither the personal representative of Nancy Houston nor the infant nor Thomas Kornegay are made parties to the bill, and for this cause the defendants demur. The bill is filed for an injunction to restrain the widow Kitty Kornegay, the holder for life of the slaves, from selling or conveying them out of the State and for relief. To the relief sought, the personal representative of Mrs. Houston and of Thomas Kornegay, and the infant Kitty, are necessary parties, because they are interested in the subject which the decree may affect, and because their claims are concurrent with those of the plaintiff, which, if not bound by the decree, may be litigated afterwards. Adams Eq., 314. The demurrer must be sustained, but as it is filed for the want of parties, the bill will not be dismissed, but stand over with leave to amend and be transmitted to the Court below, when the amendment will be made upon such terms as may seem to it proper. Gordon v. Holland, 38 N.C. 362.
It is objected, however, that the Court cannot remand the cause, because it is not an appeal from an interlocutory order. The act of '48, ch. 30, provides that when a case in a Court of Equity is set down for hearing, upon any plea or demurrer, the Court shall have power, on sufficient, cause shown on affidavit, to order it, before a hearing, to be removed into the Supreme Court. Iredell's Digested Manual, 147.
The act is loosely drawn: a plea or demurrer is not set down for hearing, but for argument, and in such cases the argument is on the plea or demurrer. The course, as before stated, is not to dismiss a bill upon such a demurrer, but to hold it over for amendment. Where is that to be made? Not here; for persons made parties, if defendants, must answer, or have a right to do so, and answers cannot be filed (43) here, for the cause must be set for hearing before our jurisdiction arises, except in cases of interlocutory order. In the Court below the amendment must be made, and upon such terms as may appear proper. Before the act of '48, where a demurrer was filed it could be brought here only upon an appeal after argument. That act, authorizing the removal, places it, when so removed, upon the same footing with an appeal, and we have seen that in the latter case, upon such a demurrer as this, if sustained, the cause must be remanded for amendment. Soon after the passage of the act of '48, it received a construction by this Court, upon this particular point, which is in accordance with the view above expressed. Hart v. Roper, 41 N.C. 349. If the bill had not prayed for relief, no amendment by making parties would have been necessary (Adams Eq., 312; Tuscot v. Smith, 1 McCord, 301-3), for the reason that each remainderman has the right to protect the property from waste or injury by an application to Chancery. More especially does this principle apply to the grievance complained of here — the removal of slaves by a tenant for life. These removals always take place fraudulently, often secretly and suddenly. If a remainderman was compelled to make all who are jointly interested with him parties, cases might and would often occur in which irreparable mischief might be done before the remedy could be applied.
In such a case as this, any one of the owners in remainder may file a bill to protect the property, for it is manifestly for the benefit of all. The plaintiffs will pay the costs of the suit.
PER CURIAM. Decree accordingly.
Cited: Love v. Wilson, post, 341.
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