
    IRABY STONE, EX’R OF JONATHAN HUGGINS, v. WM. S. HUGGINS ET AL., AND W. S. HUGGINS v. IRABY STONE, EX’R., ET AL.
    Nashville,
    January Term, 1876.
    1. CHANCERY PRACTICE. Complainant may dismiss Ms bill, when and when not.
    It is well settled as a general rule of practice in the chancery court that before a final decree, or before the trial of an issue directed by the court on the hearing of the cause to be made up and tried, the complainant may, upon motion, dismiss his bill, but after a final decree or a trial of such issue, or -after a general decree for an account, or after a decree establishing rights of the defendant, the complainant cannot so dismiss his bill, without the consent of the defendant.
    Cited with approval: 2 Dan. Chy. PI. and Pr., 965 [5th Am. ed., 1st Yol., 793, 794, 811]; Saylor’s Appeal, 39 Penn. St., 498; Conner v. Drake, 1 McCook (Ohio), 170.
    2. SUPREME COURT PRACTICE. Appellant may dismiss Ms appeal, but not Ms bill in supreme court.
    Where a decree is rendered against the complainant, and he appeals to the supreme court, he will not be permitted in that court to dismiss his bill upon motion. The appeal only may be dismissed.
    Cited, approved, and distinguished: Maskall v. Maskall, 3 Sneed, 208.
    3. SAME. Appeal vacates decree for purposes of the appeal only.
    While a decree of the chancery court is vacated by an appeal, still it is only for the purpose of having' the whole matter of law and fact appearing in the record re-examined in the supreme court, and if the appeal, for any reason, shall be dismissed, the effect is to affirm the decree, and leave it in ihe same condition as if the appeal had not been taken. In the supreme court it is the appeal, and not the original bill, that is to be prosecuted.
    Cited and construed: Code (1858), secs. 3155, 3160, 3161, 4514; Shannon’s Code, secs. 4887, 4892, 4893, 6349.
    Cited with approval: Franklin v. Franklin, 2 Swan, 524; 2-Dan. Chy. PI. and Pr., 1578, 1579 [5th Am. ed., 1497, 1498].
    4. FRAUD, DURESS, AND MISTAKE. Testimony required to-set aside contracts for, after long acquiescence-.
    Where, upon dissolution and in settlement of a partnership business a son executed Ms note to his father in 1864, and acquiesced in the transaction by paying the interest annually on the note until after his father’s death in 1871, and then seeks to have the note canceled upon the ground of mistake, duress, and fraud, and the true amount due ascertained, and it not appearing that the contract was ■obtained by fraud or duress, he will not be allowed to overhaul such settlement and transaction, upon the groimd of mistake, without some explanation of the delay and proof of the mistake alleged, by the clearest and most satisfactory testimony.
    Cited with approval: Story’s Eq. Jur., secs. 1540, 1545, 1551.
   Bailey, Sp. J.,

delivered the 'opinion of the court.

The original bill in this cause was filed by Iraby Stone, executor of the last will and testament of Jonathan Huggins, deceased, against the devisees and legatees under the will, for instructions in regard to the disposition to he made of the personal assets, and for a sale of lands owned by testator as tenant in common with W. S. Huggins and others.

The testator at his death held the note of W. S. Huggins, executed in 1864, payable ten years after date, stipulating for the payment of interest annually; and by the will he directed that the interest and principal when paid should be given to certain of the legatees, hut the bill, which was brought before the principal was payable, did not seek a decree against W. S. Huggins on -this account.

Having thus been mad© a defendant because he was a tenant in common with the testator of the lands aforesaid, ¥m. S. Huggins filed an answer, and in accordance with our practice, made it a cross-hill, by which he asked to have the note given up to' him to be canceled, upon the ground that during the military occupation of the country it had been procured from him by fraud and threats of military punishment and violence that he could not resist.

The defendant demurred to the cross-bill, assigning several distinct causes for demurrer, one of which was that as nc relief had been asked against him in regard to the note, the matter of the cross-bill was not germane to the issue presented.

The chancellor overruled the demurrer and the parties answered.

After the cause had remained in court for several years, and many witnesses had been examined, swelling the manuscript of the record now before us to making nearly one thousand folio pages, it was heard and determined by the chancellor, who dismissed the cross-bill upon its merits, and from the decree an appeal was granted tO' this court.

And now, the appeal having depended in this court since March, 1875, and having been called for hearing, "William S. Huggins, by his counsel, “conceding that the demurrer tc the cross-bill is well taken, moves for leave to dismiss the same.”

It is well settled as the general rule, of practice in the chancery court, that a complainant, as a matter of course, may move to dismiss his own bill with costs at any time before final decree. "But after decree the court will not suffer him to dismiss the bill unless upon consent, for all parties are interested in the decree, and any party may take such steps as he may be advised to have the effect of it. Again, it is said that, if after hearing a cause, the court has directed an issue to be made up and tried, the complainant before the trial may obtain an order to> dismiss the bill, because the directing of an issue is only to satisfy the conscience of the court preparatory to its judgment. If, however, the issue has been tried and determined in favor of the defendant, the complainant cannot move to dismiss, because the defendant is then entitled to have the cause set down for hearing in order to obtain a formal dismissal of the bill, so as to enroll it as a final judgment and thereby malte it pleadable. 2 Dan’l. Chy. Plead, and Prac., 965 [5th Am. ed., 1st vol., 793, 791, 811; Saylor’s Appeal], 39 Pen. St., 198.

"We thus see that even in the former, where a bill was originally brought, the right to dismiss, although generally recognized, is not always and under all circumstances accorded to the complainant.

It seems that after a general decree for an account, or where such steps hay© been taken as-to render it inequitable to so suffer the complainant to dismiss, he will be restrained.

The supreme court of Ohio, in considering this question, uses the following laguage: “The propriety of permitting a complainant to dismiss his bill is a. matter within the sound discretion of the court, which discretion is to be exercised with reference to the rights of both parties, as well the defendant as the complainant. After a defendant has been put to trouble and expense in making his defense, if, in the progress of the case, rights have been Inanifested that he is entitled to claim, and which are valuable to> him, it would be unjust to deprive him of them merely because the complainant might come to the conclusion that it would be for his interest to dismiss his bill. Such a mode of proceeding would be trifling with the court as well as with the rights of the defendants.” [Conner v. Drake], McCook (Ohio), 170.

Now, although the chancellor would have permitted the complainant to dismiss his bill in the particular case, at any time before decree, yet after decree he had no longer power to control the ease, and he could not by any action taken in the chancery court, have deprived the defendants of the right to plead the decree in bar of another bill brought upon the same grounds. The questions presented by the bill had been adjudicated by a court of competent jurisdiction, and if the case had rested there, were not open for further litigation. Under* our statute, however, an appeal was prayed and granted to this court, and the appellant has now the right “to have a re-examination in the supreme court of the whole matter of law and fact appearing in the record.” Code, sec. 3155 [Shannon’s Code, see. 4887].

It is said, however, that although this is the whole extent of the right conferred on the appellant by the statute, yet lie may now dismiss, not the appeal, hut the original bill, and thus relieve himself of the estoppel the decree of the chancellor interposed to another action. In support of this position, we are told that the effect of an appeal to this court is to vacate the decree made by the chancellor, and that if, for any cause, the suit were now to abate, the decree could not be enforced, and the case of Maskall v. Maskall, 3 Sneed, 208, is cited where the rule is so settled.

We recognize the authority of the case and the correctness of the ruling, but cannot see that it is decisive of the question before us.

Although the decree is vacated by the appeal, still, it is only for -the purpose declared by the. statute — namely, for the purpose of having the whole matter of law and fact re-examined in this court — and to this end it has been enacted that the appeal shall not be dismissed for failure to assign reasons for prosecuting it. Code, sec. 3160. [Shannon’s Code, sec. 4892.]

But what is to b© prosecuted here? Is it the original bill or the appeal?

The parties below were styled the complainants and defendants, here they are styled the appellant and appellee. The bond required of the appellant is Conditioned that he will prosecute with effect, not his suit, but his appeal. And it is declared by law, that appeals shall stand for hearing at the first term. Code, secs. 3161 and 4514 [Shannon’s Code, secs. 4893 and 6349].

The cause is here to be re-examined upon the appeal. If the appeal, for any reason, shall be dismissed, the effect is to affirm the decree, and leave it in the same condition .as if the appeal had not been taken. [Franklin v. Franklin], 2 Swan, 524.

Can the appellant, then, dismiss his bill without at the same time dismissing his appeal? We have seen that -under certain circumstances, by which the defendant would be deprived of an advantage, the complainant in tbe inferior court would not be permitted to dismiss the bill.

We have seen that this is an appeal from a decree pronounced against the appellant, and that this court has jurisdiction only for the purpose of re-examining into' matters of law and fact; and we are told by high authority, that upon an appeal from the chancellor to the House of Lords, an appellant will not be permitted to withdraw bis appeal without the consent of the appellee, for the reason that there may be cases in which it would be unjust, as be might afterwards bring a new appeal. 2 Han’l. Ch’y. Prac., 1578-9 [5th Am. ed., 1497, 1498], •

May not injustice be done to the appellee by permitting the bill to be dismissed? And shall the court give the permission ?

The parties were litigants in the chancery court for several years upon distinct issues of' fact tendered the appellant; the cause was brought to trial and the strength of bis case was submitted to the determination of the chancellor; it was decided against him, and after decree in that court, it was not within the power of the chancellor to grant permission to him to dismiss the bill. If the matter were before us to be determined according to our discretion, we could not under the circumstances allow the motion. But as it is before us, not as an original cause, but as an appeal simply to be prosecuted and defended as such, we cannot suffer the bill to be dismissed, 'but if desired, will permit the appeal to be dismissed.

Nashville, January Term, 1876.

On tbe bearing on tbe merits,

Bailey, Special J.,

delivered tbe following opinion of tbe court (which is published in 2 Leg. Pep., 165-167).

Tbe cross-bill alleges tbat complainant and bis father bad been for some years joint owners of valuable mills and other property, and partners in the business conducted there; and from causes not necessary to- be recited in this opinion, differences had arisen between them, and the father became so> greatly enraged against the son, and so> unrelenting in hostility to him that to gratify his malice he was ready to adopt any course of conduct, however detrimental to- his own interest, that would bring destruction upon the son.

It alleges that during the military occupation of the country, in the year 1864, General Payne, a federal officer, was in command of the district where the parties lived, and that the complainant’s father, with the assistance of his second wife’s relations, had acquired an influence over this officer, whose aid he invoked and secured, in order to take by military force from the complainant the possession and control of the mills and other property, and had excited against complainant the animosity of Gen. Payne, who is described in the pleadings and evidence to have been a man of fierce passions, cruel, vindictive, and bloodthirsty, regardless of law and justice.

Complainant alleges that he lived under constant apprehension of military arrest, the loss of life and property, and at last yielding to an earnest desire for peace and safety, agreed to buy, and did buy from his father the interest of the latter in the mills and other property and assets of the firm, in consideraton for which he executed the note in question.

He states that the negotiations on the part of his father were conducted by Win. P. Hickerson, now one of the circuit judges of the State of Tennessee, and when he signed the note he explained to Hickerson the motives that impelled him to make the contract, saying he would sign anything to save himself and property from ruin, and to-guard against the rights of an innocent purchaser of the note, if it should afterwards be sold; asked that by its terms the note should be declared not negotiable, which was agreed to.

He further alleges, that by the contract, he assumed tor pay and satisfy all the liabilities of the firm, and has discovered that the liabilities were much-greater than -they were then estimated to be, and moreover, that many debtors to the firm have since then proven tp be insolvent, whereby he has lost many thousands of dollars.

He says that by the terms agreed upon, he was to repay to his father all sums of money advanced for the business, with interest thereon, all of which were estimated at that time to amount to $23,600, for which sum the note calls, and he has since then discovered that it greatly exceeds the amount for which the note should have been given.

By the bill, he prays that the note may be delivered up, to be canceled, because he was in duress, and prompted to enter into the contract under such circumstances of fraud, threatened violence and actual danger, as deprived him of all free action, and on the ground of mistake, he asked that the contract should be rescinded and the amount due ascertained, which he offered to pay.

The executor and legatees answered, denying the charge of fraud, intimidation and threatened interference of military authority, but conceding that the note was executed upon a contract for the sale of the mills and other property, and assets of the firm, asserting that the contract was fairly made, was fully understood, voluntarily and freely executed, upon a full consideration, and moreover, that after the. close of the war the complainant remained in possession of the property, paying each year, according to the terms of the note, the interest that accrued, and made no complaint, until after the death of his father, which occurred in 1871, more than seven years after the date of the contract.

It would be a useless task to attempt to review the great volume of testimony that lies before us, or to enter into a 'discussion of the particulars of the unhappy differences that arose between a father and son, who in their business as in their social relations, seem to have been united for many years by the strong ties of interest, confidence- and affection.

The questions to be determined are, whether the contract, the subject-matter of this litigation, was obtained by fraud, or whether the complainant by reason of surrounding circumstances, was not a. free -agent, and yielded assent to the contract because of apparent danger to his person or property, and if neither fraud was practiced nor a state of duress existed, was the contract made under a mistake of facts so material as will at this late day warrant a court of equity interposing to forbid its enforcement.

Now, whatever apprehension may have been felt, at one time, by the complainant of interference by General Payne, in the affairs between himself and his father, it is made clearly tó appear that before the contract was consummated these apprehensions were removed, and he stood on such terms with that officer as to be safe from all efforts on the part of his father and others to do him injury.

It is also manifest that the differences between the complainant and his father in regard to their business affairs arose many months before General Payne appeared in that region of country, and that complainant had been solicitous to bring about a dissolution of the partnership, and, if necessary, to buy his father’s interest in the property. After the complainant instituted proceedings in the count}7 court of Rutherford County to have his father declared a lunatic, and by force carried him from Manchester to Murfreesboro to prevent his contemplated marriage, the parties became greatly embittered against each other, and both seemed earnestly to desire to close out their business relations.

Under these circumstances they mutually sought the friendly offices of Judge ITickerson, a gentleman of great worth and high position, who as mediator brought about the contract of dissolution and sale.

The contract does not appear to have been the result of force or fear, but was brought about by a conviction in the minds of both parties that the interest of each would be promoted thereby; it was fairly made, after full consideration, and was understood' in all its terms. The fact that for more than six years after the restoration of peace and the reorganization of the courts, and until after the death of his father, the complainant annually paid interest upon the debt, is convincing evidence that this act was voluntary, and that he regarded it as binding.

It is shown also that the complainant, a thoroughly trained business man, had charge of the books of the firm,, and referred to them in making estimates of the sums advanced by and due to his father. There is no room to-doubt that the estimates then made were correct. At all events, he does not show to our satisfaction that he made a mistake as to the sum due, and having rested so many years without complaint, until after the death of his father and the loss of the books, he will not be permitted to overhaul the settlement without some explanation of the delay and proof of the mistakes alleged, by the clearest and most satisfactory testimony. This he has not done. Story’s Eq. Jur. §§1540, 1545, 1551.

The losses which have been sustained by the insolvency of debtors to the firm, by the terms of his contract, he must bear.

The decree of the chancellor is affirmed.  