
    Henry L. Mattair and others, Appellants, vs. Celia B. Payne and others, Appellees.
    1.. 'When a bill of complaint contains such a variety of subjects of litiga; . tion not proper to be joined, and of parties not properly joined, and as to some of the matters other parties are necessary, the court may,.sM® sponte, dismiss the bill as multifarious, whether the bill be or be not demurred'to for such causes. '
    2.'A bill in equity to set aside a, deed or mortgage cannot be sustained without the presence of the grantee or mortgagee; .and with such ■matters cannot be joined a demand ¡for, rents and profits. . -
    8; A demand for rents and profits, or; fori .use; and .occupation, cannot be recovered in a suit in equity for a partition.,......
    4. A decree of: partition canndt be had while the premises are held adversely by other parties. The le&al:titlémust be first established.
    Equity is not the proper forum nor a'bili in partition' the proper-action 'for trying the legal title to lands.- ' ’ •
    Appeal from- the Circuit Court of. Nassau county.
    
      John Friend for Appellants.
    
      Cooper da Ledwith for Appellees.
   RANDALL, C. J.,

delivered! the opinion of the court.

d The pu'rpbses of this suit, as appears froin-the bill of complaint, are as follows: ■. ' ; ' ' ■ - - >r '

1.’ To' recover from the defendants for- -tile use And occupation of a:certain-hotel property in Fernandina from'February, 1866'; second, to set aside a deed' executed by’ Eme'line Coy, Amelia Crichton and others, complainants, to John :M. Payne upbn A general allegation of fraud, :andalso- - be-, cause of the imperfect, execution of the- deed,-the said John 'M. Payne, (defendants’ grantor;) not : being made'si-party to ,jthb:suit;;;;,third,!:to set aside the conveyance 'by •' Johns M. ■Payne to the-' defendants'fourth,'to'enjoin' the defendants ''•frbfh everfiettitig'up Any: titl&";or'interest in thepretrileeAunder said conveyance ; fifth, to set aside a mortgage executed by Amaziah Coy, deceased, (from whom complainants derive title,) to Joseph Einegan, (without making Finegan a party to the.suit;) sixth, to procure a sale by a master or commissioner of the premises; seventh, for a distribution of the proceeds of the sale and of the rents and profits among the complainants as heirs-at-law and the widow of said Amaziah Coy, deceased.

The deed of Emeline Coy, the widow, and Amelia Crichton and Caroline Dupray, was made for the consideration of ten thousand dollars and purported to convey the entire property in fee simple, with full covenants of warranty, to John M. Payne, who paid $5,510 in cash, and gave a mortgage for $4,490, the business being transacted through Joseph Finegan, the mortgagee, under which deed Payne went into possession. John M. Payne conveyed to defendants in April, 1871, since which time they have been in possession. Henry L. Mattair and three others, the children of a daughter of A. Coy, deceased, claim' an interest as heirs-at-law not affected by the conveyances.

The defendants claim to be bona fide purchasers without notice and for a valuable consideration: ’They allege, that Mrs. Emeline Coy is the widow and administratix of A. Coy, deceased ; that there are large debts unpaid against the estate; that.she has not fully administered; that the property in question was the only property of the deceased, and various other matters; .and.claim that there .can be no partition and distribution of the property among the heirs until the final settlement of-said-estate. They, further;,say that the $5,510 paid by John M. Payne was used in paying debts,, qf the deceased.. Defendants also demurred to the bill formp)tifarionsn&ss and Other éauses.. -. - , , , f

■ It is difficult to , determine from the bill .of complaint tjhe precisé status, legal, or equitable, of the parties’ or the property..:. As to the question: of’fraud, there is, a mere general allegation, not; supported :by .any fa.ets, but .negatived- by the alleged facts.. . , ...

' The Several matters grouped together .in the bill are so incompatible and multifarious, that no other decree can be made upon the whole case in justice to all parties except to dismiss the bill' without prejudice, in order that the several interests' of the various parties may be protected. . 5

The démand for an accounting of rents and profits; for setting aside deeds and mortgages'; determining the rights of persons not parties; for adjusting legal titles and equitable titles'; for the possession of lands ; for-a sale and'partition of the proceeds of lands held adversely to the defendants, cknnot be>-'adjtisted;iñi: Óhé'prócééding at law or in-equity;

As appéárs from thé bill; some of the complainants have á¡ 'íe^ál'fihiérSst in the property -as the heirs of Amaziah-Goy, and some of them'have parted with their - interests, and’the defendants, ‘thd grantees of John M. Payne, have become-invested with an interest and are fin possession, hohling adversely tó’ the complainants. 'Wé' do-not "mean - by 'this to determine J:Wh;át;:áre th'e: rights- of any of these parties farther than tbátfihis' is'whsfmay'be'gathered from the allegations in the pleadings. -

J Tt was’insisted 'by the defendants that something inthe case of Coy vs. Downie (14 Fla., 544) adjudicated some-of the’ questionsunvolved here as to the titlef This is an errbf. That shit was brought to foreclose the mortgage given" by John M: Payne;1 and the facts stated-"iñ-’the pleadings #efé commented upon witNAefetehee to-the right to'foreclose'. There was bo - issue in! the eofild bé^gi^bnfibíefmimng tlietitle ;of these-piar'ties.' 'Tn'thfe cáse' referred ’to, the' court; assumed' whaf wasasssefted'- $y •bpfep^Ó3,']>(fl^a;éK5l'. affecjfed'fliliit stated;' :il ;'':C7,?

a- Treating' this suit aS' án action -to recover rents and profits •even' with-proper parties, it is suggested-fhat an action of bje&tmenf fdr the recovery of the possession "'would- be thb inore proper foñá,fif the complainants - have' good title and right of possession. ■' S S'"--"-'- - J‘ * ■ -‘i'A-’"- ■ ¡'¡JV

. Treated as a suit in partition, it .cannot be maintained with these par ties .and with the legal interests involved insuch conflict as here - presented, and with the adverse possession oí these defendants as- against the plaintiff collectively as they appear from the bill, of complaint. (Burhans vs. Burhans, 2 Barb. Ch. R. 398 ; Manners vs. Manners, 1 Green's Ch. R., (N. J.,) 384 ; Wilkin vs. Wilkin, 1 Johns. Ch. 111 ; Phelps vs. Green, 3 Johns. Ch. 302; Clapp vs. Bromagham, 9 Cowen, 530; Cartwright vs. Pultney, 2 Atk., 380 ; Blynman vs. Brown, 2 Vernon, 232.)

As a bill for partition, .h is i.mprovidently-brought, if, the fact be, as alleged ip-the answer, that Mrs, Coy is the administratrix of Araaziah; Coy,, deceased, that the property in question constitutes the assets of the" estate, that there are debts remaining unsettled against it and it, is unadministered. , , . '■ . ,

. As a bill to set aside conveyances for-fraud, it improperly includes a. demand of rents, and profits, and .is bad for want of proper parties as well as for the joigdei/of- improper parties. " '

With $11 -the facts stated, in the bill-and: answer, the estate of A Coy, deceased, ¡being unsettled,, -the fif le of his heirs is only sub modo / the ¡rights of the widow and-the heirs, subject aléo to the,mortgage, to Einegan, according...to-the-bill* ¿ .sale ghdef proceedings for partition- would, be -productive of liftle benefit to ;apy .of the parties.: ^ ,. \,vy" ? ,

-. Thefe-are other¡.matters ..which it^would sgem from the .facts stated should ;be settled before .partition.,, as: .the, rights of Jphp M.,.Payne- under his.purchase.with reference to the Einegan mortgage, if , it be. true, that the: $5,510 paid by him was used in paying the .Cftate i, and-, wliat,rights qnured- tOj.John.M.'^uynennderthe if ¡the. deed to - him/conveyed no ^ater.ff|he..gyantoi^, hjfis -arty; right,to be-subrogated having been applied to that mortgage. I-Area?^.''-4? “©

■There seems to be no better way to put these parties in , their proper position to assert their legal and equitable remedies and disentangle them from the labyrinth of confusion in which they appear to be involved, than to dismiss the whole proceeding. This is sanctioned by Story’s Eq. Pleadings, Section 271, and cases cited, whether the bill_ be demurred to or not.

The decree dismissing the bill is affirmed, with the modification, however, that the order of dismissal should be without prejudice to the complainants, or either of them, as to future proceedings.  