8

7

claim of title adverse to both mortgagee and mortgagor, at least when such adverse title occurred prior to the mortgage; or to foreclose two mortgages by the same mortgagor upon separate lots owned by different persons; or to foreclose a mortgage and recover damages from a third person for fraud in inducing the loan thereby secured. But a party claiming a lien upon the property by a judgment against the mortgagor prior to the mortgage, the validity of which lien is contested by the mortgagee, may be joined as a party defendant to a foreclosure suit.10 A bill is multifarious which seeks to obtain a transfer of land from one defendant, and to restrain another from asserting a conflicting claim to the same."1

Dial v. Reynolds, 96 U. S. 340. But see California S. D. & L. Co. v. Cheney El. L. T. & P. Co., 56 Fed. R. 257; Mendenhall v. Hall, 134 U. S. 559, 568. 7 Ibid.

486. See Thomas H. El. Co. v. Sperry El. Co., 46 Fed. R. 75. But this case has been doubted by Judge Story (Story's Eq. PL., §§ 277, 278), and distinguished by Chancellor Kent.

8 Eastern B. L. Ass'n v. Denton, 65 Brinkerhoff v. Brown, 6 J. Ch. (N. Y.)

Fed. R. 569.

9 Security S. & L. Ass'n v. Buchanan, 66 Fed. R. 799. So was held to be a bill to foreclose a mortgage ón a gas plant, covering all moneys "furnished and hereafter paid" by a city for gas-light, which joined the city as a co-defendant with the mortgagor, and prayed for a judgment against the city for what it owed the mortgagor for light. International Tr. Co. v. Cartersville L. G. & W. Co., 63 Fed. R. 341, 346.

10 Converse v. Michigan Dairy Co., 45 Fed. R. 18; Copen v. Flesher, 1 Bond, 440.

11 A bill by an executor to settle the conflicting controversies between himself, the heirs of his testatrix, the heirs of her husband, both of whom dispute bequests under her will, and -one claiming to be a creditor of her estate. Haines v. Carpenter, 1 Woods, 262. An English case holds that different violators of the same copyright cannot be enjoined by the same bill when their acts of piracy were not performed in confederacy with each other. Dilly v. Doig, 2 Ves. Jr.

The following bills have also been held to be multifarious: A bill by a creditor of an estate to enjoin the sale, to pay debts, of firm lands purchased by him from the heirs, and to recover from the administrator and his sureties the amount of his debt. Banks v. Speers, 103 Ala. 436. A petition against the executors of the petitioners' deceased father and against three successive guardians of the petitioners themselves, praying an account by the defendants of their respective trusts and waiving discovery. Cornwell Mfg. Co. v. Swift, 89 Mich. 503; s. C., 50 N. W. R. 1001. A bill to enforce a claim for devastavit against the personal representatives of some of the sureties upon an administrator's bond, and for a settlement of the estate, which also sought to enforce against the representatives of the other sureties, in their individual capacities, the personal penalty for failure to give the notice to creditors required by law.

12

Persons who are acting in concert as employees or directors of the same corporation in the infringement of a patent or trademark, or who are charged with using a corporation as the means of such an infringement,13 may be joined with the corporation as defendants to the same bill. A bill filed by an assignee in bankruptcy against all the incumbrancers of his assignor's estate, some but not all of whom had liens upon the same property, to set aside their liens as fraudulent, and to have the property sold for the common benefit of the creditors, was held not multifarious.14 A bill filed by the beneficiary under several deeds of trust, some upon different parts of the same property, and one covering the entire property, against the trustees, the trustor, and the different persons claiming liens upon it, was held not multifarious.15 A bill was sustained when filed by one of the next of kin against both an administrator and his sureties, to obtain the plaintiff's share of the estate.16 A creditor's bill may be filed against the members of two different firms, and the personal representatives of those who are dead, when some are members of both.17 A bill to enforce an

Page v. Bartlett, 101 Ala. 768. See also Cocks v. Varney, 42 N. J. Eq. 514; Henninger v. Heald, 51 N. J. Eq. 74; Bullock v. Knox, 96 Ala. 195; Dickerson v. Winslow, 97 Ala. 491; Smith v. Smith, 102 Ala. 516; Bolles v. Bolles, 44 N.J. Eq. 385, 14 Atl. R. 593; Wells v. S. & P. Guano Co., 89 Va. 708; Torrent v. Hamilton, 95 Mich. 159; Ash ley v. City of Little Rock, 56 Ark. 391.

But bills were held not multifarious which were filed by next of kin against an administrator de bonis non, the administrator of his predecessor and the holder of the only claim against the estate, for the purpose of completing the administration and disallowing the claim (Deans v. Wilcoxon, 25 Fla. 980); by heirs against executors under a will, the probate of which had been revoked, and those who had bought property of the estate from them with notice of the invalidity of the will (Gaines v. Chew, 2 How. 619); and by a surety upon an official bond

against the principal, the other sureties and purchasers with notice of property upon which the bond gave a lien. Schuessler v. Dudley, 80 Ala. 547.

12 Popperhusen v. Falke, 4 Blatchf. C. C. 493.

13 Nerve Food Co. v. Baumbach, 32 Fed. R. 205; California F. S. Co. v. Improved F. S. Co., 51 Fed. R. 296.

14 McLean v. Lafayette Bank, 3 McLean, 415. See also Jones v. Slausson, 33 Fed. R. 632; Potts v. Hahn, 32 Fed. R. 660; Pullman v. Stebbins, 51 Fed. R. 10. Contra, Metcalf v. Cady, 8 Allen (Mass.), 587.

15 Grant v. Phoenix Life Ins. Co., 121 U. S. 105. See Pullman v. Stebbins, 51 Fed. R. 10; Hibernia Ins. Co. v. St. Louis & N. C. Transp. Co., 10 Fed. R. 596; s. c., 120 U. S. 166. 16 Payne v. Hook, 7 Wall. 425.

17 Nelson v. Hill, 5 How. 127. See also Oliver v. Piatt, 3 How. 333. But see Griffin v. Merrill, 10 Md. 364. Bills have been sustained which were

equitable title, such as a trust,18 or to remove a cloud upon a complainant's title,19 may also seek partition after the primary relief has been established, provided that no defendants need be joined who are not proper parties to a suit for the principal relief. A bill was sustained which sought partition and also the cancellation of tax deeds upon the common property held by strangers to the partition.20 A bill may be filed by the holder of a bond secured by a lien upon the property of a corporation against both the corporation and its stockholders, at the same time to foreclose his lien and to compel the stockholders to pay so much of the balance of their subscriptions to the stock of the corporation as will suffice for the payment of the deficiency after the foreclosure sale." A bill of peace may

filed to dissolve a partnership and to partition the estate, real and personal (Briges v. Sperry, 95 U. S. 401), and to set aside an assignment of one partner's interest in the firm and then to divide the assets. Hayes v. Heyer, 4 Sandf. Ch. (N. Y.) 485.

18 Hopkins v. Grimshaw, 165 U. S. 342, 358; Briges v. Sperry, 95 U. S. 461; Hayes' Appeal, 123 Pa. St. 110; Hayes v. Heyer. 4 Sandf. Ch. (N. Y.) 517.

350.

But see Belt v. Bowie, 65 Md.

19 Vreeland v. Vreeland, 48 N. J. L. 56; s. c., 24 Atl. R. 551. But see Robinson v. Springfield Co., 21 Fla. 203. 20 Ulman v. Jaeger, 67 Fed. R. 980. 21 Marine & R. P. M. & Mfg. Co. v. Bradley, 105 U. S. 175. So may a bill by the receiver of a national bank to recover dividends unlawfully paid to stockholders, although some of the defendants did not participate in all the dividends which he attacked. Hayden v. Thompson (C. C. A.), 71 Fed. R. 60; reversing S. C., 67 Fed. R. 273.

In New Jersey it was held that a stockholder's bill might be brought to recover damages for the negligence of the officers and directors of a bank for a period of time during part of which some of the defend

In Massachusetts a stockholder was allowed to file a bill against a corporation and an officer thereof to recover corporate funds misappropriated by the officer and to apply the same to a dividend due the complainant. Dunphy v. Traveller Newspaper Ass'n, 146 Mass. 495.

In Mississippi a stockholder's bill was sustained which sought to set aside two separate deeds of trust executed by the corporation where one of the defendants owned a number of the bonds secured by each deed. Hardie v. Bulger, 66 Miss. 577.

But bills were held to be multifarious which were filed by a stockholder which complained of other stockholders and officers for false representations which induced him to buy his stock, and against the corporation for a dissolution and an accounting because of the suspension of its business and waste of the corporate funds. Watson v. U. S. Sugar Ref. Co. (C. C. A.), 68 Fed. R. 769. It has been held that claims against directors and stockholders to enforce different liabilities cannot be combined. Cambridge Waterworks v. Somerville D. & B. Co., 14 Gray (Mass.), 193;

be filed to dispose of the claims of a number of defendants, which all depend on the determination of a single question of fact or law.22

A bill is not multifarious when brought to enjoin several members of a trade union or other persons from acts of vio

lence or other trespasses in furtherance of a strike.23 Where the evidence did not justify a charge of combination made in the bill, it was dismissed for multifariousness upon the hearing.24

§ 74. Multifariousness without misjoinder of parties.Multifariousness may also exist without a misjoinder of parties when two or more distinct and unconnected grounds of equitable relief are joined in the same bill. To create this defect the grounds of relief must be different, and each ground must be sufficient as stated to sustain a separate bill.' It has been said that a bill is multifarious which joins two matters where the necessary parties to the suit are the same, but their interests and attitude are decidedly at variance. It has been held that a bill is multifarious when filed by the receiver against the directors of a national bank to recover claims for losses suffered by the corporation by reason of the directors' negligence, and also claims for losses suffered by the stockholders by reason of having been induced to subscribe for new shares by misrepresentations of the directors; that so is

against a number of claimants to land in severalty, the validity of the separate title of each of whom depends upon the construction of one special statute, U. S. v. Flournoy L. S. & R. E. Co., 69 Fed. R. 886; Central Pacific R. Co. v. Dyer, 1 Saw. 641; see Osborne v. Wisconsin Cent. R. Co., 43 Fed. R. 824; supra, § 72; or the validity or construction of the same document, Gaines v. Chew, 2 How. 619; Crews v. Burcham, 1 Black, 352; Hyman v. Wheeler, 33 Fed. R. 329; U. S. v. Curtner, 26 Fed. R. 296, 298; or proceeding, Ulman v. Jaeger, 67 Fed. R. 980. But not a bill against thirty-four defendants to enforce thirty-four separate, although similar, contracts, Cheney v. Goodwin, 88 Me. 563; s. c., 34 Atl. R. 420; nor a bill against fifteen defendants to cancel separate notes severally held by them, some of which were alleged to be forgeries and the others obtained by fraud the forger and defrauder being a

stranger to the suit, Scott v. McFarland, 70 Fed. R. 280.

23 Oxley Stave Co. v. Coopers' Int. Union, 72 Fed. R. 695; Casey v. Cincinnati Typ. Union, 45 Fed. R. 135; Arthur v. Oakes (C. C. A.), 63 Fed. R. 310; supra, § 48; infra, ch. XVI.

24 Coe v. Turner, 5 Conn. 86. But see infra, § 75.

$74. 1 Brown v. Guarantee S. D. & Tr. Co., 128 U. S. 403; Central Nat. Bank v. Fitzgerald, 94 Fed. R. 16. See Ziegler v. Lake St. El. R. Co., 76 Fed. R. 662.

2 So said of a bill by one heir-atlaw of a deceased married woman against her husband and the other heirs to set aside both her marriage settlement and her will. McDonnell v. Eaton, 18 Fed. R. 710.

Price v. Coleman, 21 Fed. R. 357. See also Lewarne v. Mexican Int. Imp. Co., 38 Fed. R. 629. It has been held that a bill is multifarious when filed to collect an unpaid stock subscription, together with damages for