Opinion
06-06-1894
DROSTE v. HALL et al.
James Parker, for complainant. John W. Beekman, for defendants.
(Syllabus by the Court.)
Bill by Harriet A. Droste against John Hall and others to secure an assignment of dower. On demurrer to bill. Demurrer overruled.
James Parker, for complainant. John W. Beekman, for defendants.
McGILL, Ch. The bill seeks the assignment of a widow's dower in three contiguous parcels of land,—one owned by Isaac D. Ward, another owned by Samuel D. Watson, and the third held in trust by the executors of the will of Samuel Hall to the use of the widow of Hall during her life, and, at her death, to divide between the son and daughter of Hall. The deceased husband of the complainant had aliened these parcels from a single tract of land which he owned in fee during his marriage with the complainant. The defendants, who are Messrs. Watson and Ward, and the executors, widow, and children of Samuel Hall, jointly and severally, demur to the bill upontwo grounds—First, because it is multifarious in that it joins distinct matters against the several defendants, in which they are severally, not jointly, concerned; and, second, because the executors of Hall are made parties defendant; and they also, in the same writing, jointly and severally answer, nominally, that part of the bill to which they do not demur, but, in reality, the entire bill.
I am of opinion that the first ground of demurrer is sound. When a husband, during his life, has divided his lands into several parcels, and aliened those parcels to different purchasers, dower is to be assigned to his widow in each separate tract, and not in the whole original tract. 2 Scrib. Dower, 603; In re Garrison, 15 N. J. Eq. 396. Only those who are interested in one such parcel of the land are proper parties to the assignment of dower in that parcel, for they alone are concerned in and to be affected by the assignment. Hartshorne v. Hartshorne, 2 N. J. Eq. 349. In the present case Mr. Ward has no interest in either the parcel of Watson or the parcel of Hall, and Watson has no interest in the parcels of Hall and Ward, and those interested in the Hall parcel are not concerned in the land which belongs to Ward and Watson. To join all of these parties in one bill, which prays relief that must be three distinct assignments of dower in the three separate pieces of property, is to unite several distinct and independent demands against different defendants in the same bill, and such joinder renders the bill multifarious. Story, Eq. Pl. (10th Ed.) 262; Crane v. Fairchild, 14 N. J. Eq. 76. In Saxton v. Davis, 18 Ves. 80, Lord Eldon, of such a bill, said: "Seeking to enforce different demands against persons liable respectively, but not as connected with each other, it is clearly multifarious." The fault of multifariousness is objectionable alike to each defendant and the court. It is oppressive to the defendants because it tends to load each of them with an unnecessary burden of costs by swelling the pleadings with the statement of the several claims of the other defendants, with which he has no connection, and it works hardship to each defendant and to the court through confusion and consequent delays which will almost of necessity result from an attempt to adjust several distinct and independent issues between different parties in one suit by a single decree.
The second ground of demurrer is not tenable. The executors of the will of Hall have taken the legal fee of the Hall parcel in trust for a life, and then to divide, which may involve conveyances. They are so interested in the title that they, with the widow and children of Hall, are at least properly—I think necessarily — joined as defendants. Badgley v. Bruce, 4 Paige, 98.
My conclusion upon the first ground of demurrer would lead me to sustain the demurrer were it not for the existence of the answer, which goes to the whole bill. I think that the answer overlaps and overrides the demurrer. It is the well-settled rule that a less favored mode of defense will yield to the more favored, i. e. a plea to an answer and a demurrer to a plea or an answer. When more than one mode of defense is resorted to, no two must overlap, as the least overlapping is fatal to the less favored defenses. Mitf. Eq. Pl. (4th Ed.) 209, 219; Langd. Eq. Pl. § 103; Story, Eq. Pl. § 465; 1 Daniell, Ch. Pr. 570, 616, 791; Veghte v. Water Power Co., 19 N. J. Eq. 145. I cannot allow the demurrer, because it is overruled by the answer. The complainant should be advised of the multifariousness of her bill, because, if she proceeds to final hearing as it stands, she does so at her peril of the court's taking the objection at the hearing, and dismissing the bill. Veghte v. Water Power Co., supra; Annin v. Annin, 24 N. J. Eq. 184, 188.