
    Rufus C. Barkley, Administrator of J. L. Barkley, Deceased, vs. John Barkley and others.
    
      Specific performance — Contract by vendor to remove incumbrances — Multifariousness.
    Where vendor sells lands encumbered by mortgages, and agrees with vendee to procure the mortgages to be satisfied, and the vendee pays the purchase money, a bill will lie to compel specific performance of the agreement.
    A bill by an administrator to enjoin creditors from suing at law and for sale of the real estate to pay debts, is not objectionable for multifariousness, because, besides creditors and heirs, with the usual allegations and prayers as to them, a vendor from whom the intestate had purchased the real estate and certain prior mortgagees of the same, are made parties; the object of making them parties being to remove a cloud from the title, by compelling the vendor to specifically perform his agreement to satisfy the mortgages.
    BEFORE LESESNE, OH., AT CHARLESTON, NOVEMBER, 1867.
    As the questions in this case arose upon the pleadings it is deemed proper to report the bill and demurrer in full.
    Bill.
    Humbly complaining, showeth unto your Honors, R. C. Barkley, of the district and State aforesaid, that his brother, James B. Barkley, departed this life on or about the-day of January, 1864, intestate, unmarried, and without issue, leaving surving him his brothers, John Barkley, David Barkley, William 0. Barkley, Hugh Barkley, and your orator, and also a sister, Eliza Ann, the wife of O. R. Thompson, of Winnsboro.
    And your orator further shows unto your Honors, that the said Eliza Ann departed this life some time on or about 17th day of March, 1866, leaving surviving her, her said husband, the said O. E. Thompson, and four children, all of whom are infants of tender years, to wit: Mary G. Thompson, of the age of nine years; William L. Thompson, of the age of seven years; Margaret Loss Thompson, of the age of four years; and Nancy L. Thompson, of the age of about one year and nine months.
    Your orator further shows unto your Honors, that on or about the 9th of February, 1861, he applied for and received from George Buist, Esq., Ordinary for Charleston district, letters of administration upon the estate of said James B. Barkley, and took upon himself the burden of the administration of said estate.
    And your orator further shows unto your Honors, that the said James B. Barkley died seized of a considerable personal estate, which was sold under orders from the Court of Ordinary, for funds of the late Confederate States, which said personal estate has been fully administered and accounted for before the Ordinary of Charleston district, as will more fully appear by reference to the decree of said Ordinary, a copy whereof is herewith filed and marked Exhibit “A.”
    And your orator further shows unto your Honors, that certain debts of said James B. Barkley still remain unpaid, to wit: a debt to George F. Meldau, and some other debts to certain persons to your orator not positively known, but who, when discovered, your orator prays may be made parties to these proceedings.
    Your orator further shows unto your Honors, that the said James B. Barkley was seized at the time of his death of an estate in fee simple, of all that lot, piece or parcel of land, with the dwellings and buildings thereon, situate, lying and being on the south side of Liberty street, in the city of Charleston, and the State aforesaid, measuring and containing in front, on Liberty street aforesaid, thirty-three feet by the same on the back line, and in depth one hundred and forty-seven feet, be the said dimensions more or less; butting and bounding to the north on Liberty street aforesaid ; east, on lands now or late of Mordecai Cohen ; south, on lands formerly of William Graham, and more reently of---; and west, on lands now or late of Mordecai Cohen.
    Your orator further shows, that the said lot of land was purchased from Michael McManmon, on the 6th day of January, 1864, as will more fully appear by reference to the deed of conveyance, a copy whereof is herewith filed, and marked Exhibit “B.”
    
    Your orator further shows to your Honors, that at the time of the purchase by the said James B. Barkley, there were on record in the office of the Register of Mesne Conveyance for Charleston district, three mortgages on said lot of land and buildings, which are unsatisfied on the record, to wit: a mortgage from Thomas Y. Simons to Elias Horlbeck, dated January 1st, 1861, to secure a bond in the penal sum of $4,480, conditioned to pay $2,240, which said mortgage is recorded in the office of the said Register, in Book O, No. 14, page 390; also a mortgage from Michael McManmon to Elias Horlbeck, dated 16th April, 1863, given to secure a bond in the penal sum of $4,000, conditioned to pay the sum of $2,000, with interest, which said mortgage is recorded in the office of the said Register for Charleston district, in Book Q, No. 14, page 183 ; also a mortgage from Michael McManmon to Thomas Y. Simons, dated 28th January, 1863, given to secure a bond in the penal sum of $5,150, conditioned for the payment of $2,575, with interest, recorded in the office of the paid Begister, in Book Q, No. 14, page 204, on the 81st day of June, 1863.
    Your orator has been informed, and believes, that the mortgage to Elias ITorlbeck from Thomas Y. Sim,ons has been paid, though the same remains unsatisfied on the records. And your orator is further informed, that the mortgage from Michael McManmon to Thomas Y. Simons has been assigned to some person to your orator unknown.
    And your orator further shows uuto your Honors, that at the time of the purchase of said house and lot by the said James B. Barkley from the said Michael McManmon, the said Michael McManmon agreed, and it was understood between the said parties, that he would procure the said morgage to be satisfied, so that the title to the said house and lot should be without any defect, flaw, or incumbrance, and on this agreement the said James B. Barkley, relying on the good faith of the said Michael McManmon, paid to the said Michael McManmon the whole of .the purchase money, and took title for the property.
    And your orator further shows unto your Honors, that the said James B.- Barkley, at the time of his death, was also seized of all that lot, piece or parcel of land, situate, lying and being in Pitt street, east side, adjoining the premises of Joseph A. Sanders, and known as No. 66, and distinguished in an original plat drawn by Bobert A. Payne, known as Duncan Square, by-the No.'25, and measuring and containing in front, westwardly on Pitt street, thirty-five feet, more or less, and the same on tbe back line; on the south line, on a lot now or formerly of Daniel Johnson, ninety-sis feet, more or less; and on the north line on a lot now or formerly of Mr. "Waiding, ninety-nine feet, more or less.
    And your orator further shows unto your Honors, that he, acting under a mistake, did, on the 28th March, 1864, as administrator of James B. Barkley, convey the said bouse and lot on Pitt street, to one Thomas Mulvaney ; but your orator having been subsequently advised that his conveyance was not good, and only conveyed the right and title of himself as one of the heirs of his brother, repaid to said Thomas Mulvaney the purchase money, which your orator had received, and took from him a conveyance of the said lot of land to himself, so as to cover the interest which he had by the said deed conveyed.
    And your orator would further show, that the said title, a copy of which is hereto annexed and marked Exhibit “C,” is dated 20th November, 1861, has never been recorded, and has always been, and still is, held by your orator for the benefit of the estate of his brother, the said James B. Barkley.
    And your orator further shows unto your Honors, that there is no personal estate other than the said Confederate notes, out of which the debts of the estate can be paid ; and your orator fears that the said Greorge E. Meldau, and the other creditors of the estate, whom your orator prays may be made parties to this bill, when discovered, with apt and proper words to charge them, will proceed at law to collect their debts to the serious injury of the estate.
    And your orator further shows unto your Honors, that he has frequently applied to rhe said John Barkley, David Barkley, Hugh Barkley, and William 0. Barkley, O. it. Thompson, Mary Gr. Thompson, William L. Thompson, Margaret L. Thompson, and Nancy S. Thompson, to join him in executing a conveyance of the said two houses and lots of land, for the purpose of enabling him to pay off the debts and liabilities of the estate, and dividing the remaining portion among them, which your orator had well and truly hoped they would have done.
    And your orator further shows unto your Honors, that he has frequently applied to the said Michael McManmon to perform the agreement made with the said James B. Barkley, and to cause the said mortgages to be satisfied on the record of the Register of Mesne Conveyance, and to pay any amount that may be due on any of the same, in accordance with his said agreement, which in justice and equity he ought to have done.
    And your orator further shows unto your Honors, that he has frequently endeavored to find and ascertain the party to whom the mortgage from Michael McManmon to Thomas Y. Simons had been assigned, and has failed to discover the person; but your orator prays that the said person, when discovered, may be made a party to this bill, with fit and apt words, to charge him as a party.
    And your orator further shows unto your Honors, that he has frequently applied to Elias Horlbeck for the purpose of ascertaining what amount is due on said mortgage, and more particularly also for the purpose of ascertaining the true value and real character of the consideration for which the two mortgages by Michael McManmon and Thomas Y. Simons were given, and what portion, if any of the said value has been paid, and what portion of the real consideration is due, the said two mortgages having been executed between the 1st day of January, 1862, and the 15th May, 1865; and your orator had well and truly hoped that the said Elias Horlbeck would have well and truly complied with this, his reasonable request, as in justice and equity he ought to have done.
    But now so it is, may it please your Honors, the said John Barkley, David Barkley, Hugh Barkley, and William Barkley, O. R. Thompson, Mary Gr. Thompson, William L. Thompson, Margaret L. Thompson, and Nancy L. Thompson, Michael McManmon and Elias Horlbeck, combining and confederating together, with divers other persons at present unknown to your orator, whose names, when discovered, he prays may be herein inserted, with fit and proper matter and words, to charge them as parties hereto, contriving bow to injure your orator, absolutely refuse to comply with such his reasonable request. All of which actings and doings, and pretences, are contrary to equity and good conscience, and tend to the manifest wrong and injury of your orator in the premises. In tender consideration whereof, and for as much as your orator is remediless in the premises by the strict rules of the common law, and cannot have adequate relief except in a Court of Equity, where matters of this kind are properly cognizable.
    To the end, therefore, that the said John Barkley, David Barkley, Hugh Barkley, and William C. Barkley, O. B. Thompson, Mary G. Thompson, William L. Thompson, Margaret L. Thompson, and Nancy S. Thompson, Gr. E. Meldau, Elias Horlbeck, and'Michael McManmon, may full, true, and perfect answer make to all and singular the premises, and that as fully as if they had been thereunto specially interrogated. That the said Michael McManmon may be compelled to satisfy the said mortgages. That the said Elias Horlbeck may declare what amount is due on the mortgages held by him, and ihe nature and true value of the consideration received by him, and whether the said consideration was in specie, bank bills, or notes known as Confederate treasury notes, and that he may be enjoined from foreclosing either of the said mortgages. That the said Gr. E. Meldau, and other creditors, be enjoined from proceeding at law, but that they present and prove their accounts before this Honorable Court; and after the sale of the said houses and lots, that the surplus, if any, after payment of debts, may be divided among the distributees of the said James B. Barkley, in the shares to which each of them may be entitled; and that your orator may have such further and other-relief in the premises as the nature and circumstances of the case may require. May it please your Honors to grant that the writ of injunction may issue out of this Honorable Court, under the seal of the Court, directed to Elias Horlbeck, and enjoining him from proceeding for the purpose of foreclosing the said mortgage; and also to--and others, when discovered, the creditors of the said James B. Barkley, enjoining them from suing at law for the said debts due to them. And also may it please your Honors to grant unto your orator a writ of subpoena ad respondendum, to be directed to John Barkley, David Barkley, William C. Barkley, Hugh Barkley, O. B. Thompson, Mary G. Thompson, William L. Thompson, Margaret L. Thompson, and Nancy S. Thompson, Elias Horlbeck, Michael Mc-Manmon, and George E. Meldau, commanding them, on and by a certain day, and under a penalty to be therein named, to be and appear before this Honorable Court, and then and there, on their several corporal oaths, to the best of their knowledge and belief, full, true and perfect answer to make to all and singular the matters herein contained, and to' stand to, abide by and perform such orders and decrees as to your Honors may seem meet and. agreeable to equity and good conscience. And your orator will ever pray, &c.
    Demurrer of Michael McManmon.
    This defendant, by protestation, not confessing or acknowledging all or any of the matters and things in the said" bill of complaint contained, to be true in such manner and form as the same are therein and thereby set forth and alleged, doth demur in law to the said bill, and for cause of demurrer showeth that he, said complainant, hath not by his said bill, made such a case as entitles him in a Court of equity to any discovery or relief from or against this defendant, touching the matters contained in the said bill, or any of such matters; and for further cause of demurrer, this defendant showeth that it appears by the said bill that the same is exhibited against this defendant and John Barkley, Hugh Barkley, David Barkley, William C. Barkley, O. B. Thompson, Mary G. Thompson, William L. Thompson, Margaret L. Thompson, Nancy S. Thompson, George E. Meldau, and Elias Horlbeck, for several and distinct matters and causes, in many whereof, as appears by the said bill, this defendant is not in any manner interested or concerned, by reason of which distinct matters the said plaintiff’s said bill is drawn out to a considerable length, and this defendant is compelled to take a copy of the whole thereof, and by joining distinct matters together which do not depend on each other in the said bill, the pleadings, orders, and proceedings will, in the progress of the said suit, be intricate and prolix, and this defendant put to unnecessary charges in taking copies of the same, although several parts thereof no way relate to or concern him; wherefore, and for divers other good causes of demurrer, appearing in the said bill of complaint, this defendant doth demur to the said bill, and to all the matters and things therein contained, and prays the judgment of this honorable Court, whether he shall be compelled to make any further or other answer to the said bill, and he humbly prays to be hence dismissed, with his reasonable costs in this behalf sustained.
    The decree of his Honor, the Chancellor, is as follows:
    Lesesme, Ch. The bill in this case is filed by the plaintiff, as administrator of James B. Barkley, deceased, for a settlement and distribution of his intestate’s estate, alleging that the intestate’s personal estate had been duly administered and accounted for, and was insufficient to pay his debts, and praying a sale of his real estate for that purpose, and for distribution among his heirs and distributees. To this bill the heirs and distributees, and the creditors of the intestate, are made parties defendant, and also certain mortgagees of the mortgaged portion of the intestate’s real estate, and likewise Michael McManmon, the vendor and mortgagor of the mortgaged premises.
    McManmon demurs to the bill, and shows for cause of demurrer: 1st. That complainant has not by his bill made such a case as entitles him, in a Court of equity, to any discovery or relief from this said defendant; and, 2d. That the bill is obnoxious to the charge of multifariousness, it being exhibited by one complainant against several defendants, and for several and distinct matters, with many of which the defendant McManmon is in no way concerned.
    The facts of the case, as set forth in the bill, so far as the defendant McManmon is concerned, are as follows:
    On the 6th day of January, 1861, McManmon sold and conveyed a house and lot in “Liberty” street, in the city of Charleston, to the intestate, with a general warranty of title. At the time of the purchase, there were on record, two unsatisfied mortgages of the said property by 'McManmon, one dated January 28th, 1863, for $2,575, to Thomas Y. Simons, Esq., and another dated April 16th, 1863, to Dr. Elias Horlbeck; and it was agreed and understood between the intestate and McManmon, that he, McManmon would procure these mortgages to be satisfied, so that the title to the property should be without any defect, flaw, or incumbrance, and upon that agreement the intestate paid the whole of the purchase-money, and received a conveyance of the property. But McManmon has failed to procure satisfaction of the mortgages. And the prayer, as to him, is, that he be compelled to do so, or in other words, that his agreement be specifically performed.
    The allegations of the bill must be taken as true, “pro hac vice." The case before the Court, then, is that of a vendor of land subject to mortgages, to be satisfied. I think the plaintiff is entitled to decree for specific perform-anee. The case is certainly as strong-as if McManmon had covenanted to indemnify Barkley against the claim of the mortgages. And it is settled that a bill will lie for specific performance of a general covenant of indemnity, though it sounds only in damages, upon the principle on which the Court entertains bills u quia timet." (Champion vs. Brown, 6 John. Cb. 398; see also Story’sEq. Jur. §§ 370, 785, 850.)
    I do not think, indeed, that to sustain tnis bill it is even necessary to show any express agreement, such as is alleged. The question is whether the vendor is bound to remove the liens or incumbrances on the property subsisting at the time of the sale. His deed, I apprehend, obligated him to do that. But it is only in this Court that such an obligation can be adequately enforced, and the authority of the Court is well established. In Lee vs. Book, (Moseley, 318,) disencumbering an estate or perfecting the title, is spoken of as a familiar subject of equity jurisdiction ; and the doctrine is recognized in the case of Hodges vs. Gonner, (1 McMul. 125.) The action in the latter case was on a note given for the purchase of land, and the defence urged was, that the plaintiff had no title to the land, and there was consequently a failure of consideration. The defendant’s possession had not been disturbed or threatened, and it also appeared that the plaintiff had an equitable title.
    The Court, under the circumstances, rejected the defence, but iu doing so, remarked: “If he (the defendant) feels himself insecure in his possession, let him file a bill in the Court of Equity against the plaintiff, to perfect the title.”
    It remains to consider whether this bill is justly obnoxious to the charge of multifariousness.
    “By multifariousness,”says Mr. Justice Story, “is meant the improperly joining, in one bill, distinct and independent matters, and thereby confounding them; as for example, the joining in one bill of several matters perfectly distinct and unconnected against one defendant, or the demand of several matters of a distinct and independent nature a ainst several defendants in the same bill.” Eq. PI. 271; and in Dan. Oh. PI. and Practice, p. 395, it is said: “ Prom the above cases it may be deduced that a plaintiff cannot join in his bill, even against the same defendant, matters of different natures, although arising out of the same transaction ; yet, when the matters are homogeneous in their character, the introduction of them in the same bill will not be multifariousness.” The present bill is filed by an administrator, and its purpose is to settle up the intestate’s estate. PYr that purpose, it asks for a sale of the real estate, in aid of the personal assets, which are insufficient tor the payment of the debts.
    But the real estate is encumbered by certain mortgages, and in order to make a good title, it further seeks the removal of those incumbrances. It cannot be said that the things sought for by this bill arc “ unconnected,” or “ of different natures.” They aim at one and the same object, and are all necessary to its accomplishment, and are therefore not “ multifarious,” but homogeneous in tbeir character.
    If the demurrer were to be sustained, the effect would be to necessitate several other suits, on questions which are involved in this bill, all of which relate directly to its one object, and may be tried in this cause without any disadvantage to the defendant, McManmon. It is a very proper case for the exercise of the peculiar and very beneficial jurisdiction of this Court, to prevent a multiplicity of suits, and administer suitable and full relief.
    It is ordered and decreed, that the demurrer be overruled, and that the defendant, Michael McManmon, answer the bill, or plead to the same within thirty days from the filing of this decree.
    
      The defendant, Michael McManmon, appealed on the grounds:
    1. That the complainant is not entitled to a decree against McManmon for a specific performance'of the agreement alleged in his bill of complaint, because any such parol, promise, or undertaking, if' made at or before the date of the title deed to the intestate, was merged in the general warranty of said deed; and if made after, could not control, vary, or alter the obligations by way of warranty contained in said previous deed.
    2. That the complainant is not entitled to a decree against McManmon, to disencumber the property by virtue of any provisions in the1 alleged title deed to the intestate.
    3. That the complainant is not entitled to equitable relief, because the alleged agreement is so vaguely stated in his bill of complaint, that the defendant, McManmon, cannot know with certainty to what and what kind of contract he is to respond.
    4. That the allegations of said bill of complaint do not. entitle the complainant to any kind of equitable relief.
    5. That the bill is multifarious, inasmuch as it seeks the aid of the Court in a partition and settlement of the intestate’s estate, and also seeks to enforce a specific performance against McManmon, of an agreement to disencumber.
    
      Brewster, Spratt, and BurJce, for appellant.
    Duryea, contra.
    
      
       This deed contained the usual covenant to warrant the title against the grantor and his heirs and all other persons whomsoever.
    
   The opinion of the Court was delivered by

Dunkin, Ch. J.

The pleadings admit that “ at the time of the purchase of the house and lot, the defendant agreed, and it was so understood between the parties, that be would procure the mortgages to be satisfied, so that the title to the said house and lot should be without any defect, flaw, or incumbrance, and, on this agreement, the intestate, relying on the good faith of the defendant, paid him the whole of the purchase money, and took title for the property.” Whatever other covenants or obligations he may have entered into, it is not permitted to him to deny this agreement. He is precluded by the demurrer. Then as to the authority of this Court to enforce the agreement, (at sec. 850, Eq. Jut.) Mr. Justice Story says: “Courts of Equity will decree the specific performance of a general covenant to indemnify, although it sounds in damages only, upon the same principle that they will entertain a bill Quia timet; and this not only at the instance of the original covenantee, but of his executors and administrators.” The general principle is stated (§ 730,) that the Court will interpose in many cases to decree a specific performance of express, and even of implied contracts, where no actual injury has as yet been sustained, but it is only apprehended from the peculiar relation between the parties.

The fifth and last ground objects that the bill is multifarious, as the purposes sought are different as against the several defendants. The proceedings are instituted for the partition and settlement of the intestate’s estate, in which the administrator and heirs are properly parties. The personal assets having been exhausted, it is sought to subject the real estate to the payment of debts, etc., a course sanctioned by the practice and decisions of this Court. The incumbrances, which the defendant agreed to have removed, are a cloud upon the title. Assuming that the administrator, or the heirs, are entitled to implead the defendant in a separate suit, no clear title could bé offered until the termination of those proceedings, thus producing unnecessary delay. It is a favorite object of this Court to prevent multiplicity of suits and variety of litigation. Furthermore, “ if the nature of the transactions,” (says an approved author, Adams’ Eq. 310,) “ makes a single suit convenient, the objection of multifariousness in such cases will not be sustained.” In Oliver vs. Platt, (3 How. U. S. 333, 411,) the Court say, “ Where the interests of different parties are so complicated in different transactions, that entire justice could not be conveniently done without uniting the whole, the-bill is not multifarious.” And again, “there is no general rule by which to determine whether a bill, in such cases, is multifarious or not; but it must be left to the discretion of the Court, under the circumstances of the case.” See also, Williams vs. Neel, (10 Rich. Eq. 338.)

It is ordered and decreed that the appeal be dismissed.

Wardlaw and Inglis, A. JJ., concurred.

Appeal dismissed.  