
    Ethel S. Morris, et al. vs. Merrit Dillard, et uxor.
    A slave belonging to D. was sold under a judgment against him, and purchased by the friends of D.’s wife, who had the title made to her ; M. afterwards obtained judgment against D., and had the slave sold under it, which was purchased by W.; D. and wife filed a bill, impleading W. and M., asserting the wife’s title to the slave, and praying for a delivery of the slave to her, and that the judgment in favor of W. might be declared void and inoperative, as to the slave : Held, that the bill was multifarious as to M., who had no interest in the controversy, as to the title to the slave, and should not have been made a party.
    In error, from the district chancery court of the state of Mississippi, held at the town of Holly Springs, in Marshall county, before the Hon. Henry Dickinson, Yice Chancellor of the state of Mississippi.
    Merrit Dillard, and Elizabeth Dillard his wife, filed their bill in the vice chancery court, at Holly Springs, against Seaburn E. Morris, Ethel S. Morris, William Wright, and Jasper Jones. They aver that on the 6th day of May, 1839, Merrit Dillard owned, in his own right, a negro man named John, worth about six hundred dollars ; that on that day a writ of fieri facias, emanating on a judgment against the husband, was levied on this slave ; that in order to secure the services of the slave to the wife, who was, as well as the husband, in a necessitous condition, the children and other relatives of the wife contributed a sum of money, for the purchase of the slave at the sheriff’s sale ; that this money was placed in the hands of Joshua S. Curtis, with the understanding and agreement that he should buy the slave, and convey him to the wife ; that Curtis did, with the funds thus furnished, buy the slave, and convey him by bill of sale to the wife, who remained in quiet possession of him until April, 1842, when he was taken into custody by the sheriff of Marshall county, by virtue of executions upon judgments against the husband, obtained in that county by Seaburn E. Morris and Ethel S. Morris ; that on the 1st day of August, 1842, the slave was sold under these judgments, and bought by Jasper Jones, for three hundred and five dollars ; that the claim of the wife was publicly proclaimed at the sale ; that on the 6th of November, 1841, the judgments in favor of Seaburn E. and Ethel S. Morris were transferred to William Wright, and that Jones purchased the slave for Wright, who was and had been, ever since the sale, in possession of the slave; that the bill of sale from Curtis to the wife was, on the 11th day of June, 1839, duly recorded in the probate office of the county, and was well known to both Wright and Jones, who was a deputy sheriff in the county; that the judgments in favor of Seaburn E. and Ethel S. Morris were rendered on the 5th day of June, 1840.
    That the complainants had in March, 1842, filed a bill before thé Hon. Robert H. Buckner, Chancellor of the state, impleading the same parties and for the same purpose, but it was compromised and dismissed by the husband, without the knowledge, consent, or subsequent ratification of the wife, and that Wright had failed to fulfil the terms of compromise; that John was a favorite family servant, born and raised in the family, and they were anxious to recover the slave, and quiet the wife’s title to him; the bill prayed that John might be delivered up to the wife, her right to him be settled, that the judgments of Seaburn E. and Ethel'S. Morris, so far as the rights of the wife were concerned, might be declared void and of no effect, &c.
    William Wright, Jasper Jones, and Ethel S. Morris demurred to the bill for multifariousness; Jones and Wright also answered the bill, denying any fraud, admitting that they knew of the complainant, Elizabeth’s, claim, but thought it mere pretence, and that they really believed the negro belonged to the husband, when they bought him.
    The court below disallowed the demurrer, and gave the defendants thirty days in' which to answer. They prosecute this writ of error.
    
      
      D. C. Glenn, for plaintiff in error.
    The bill in the court below was demurred to, upon the ground of multifariousness, and the demurrer was overruled by the Yice Chancellor.
    Upon the part of appellants, I contend that this was clearly erroneous, as will appear by reference to the facts of the case. E. S. and S. E. Morris, defendants, were the original owners of the judgment at law, under an execution issuing from which, the negro in question was sold ; but before the issuance of the execution they had sold and transferred their whole interest, legal and equitable in the judgment, to Wright, another defendant; Wright being the owner of the judgment, the execution issued, and Jones, also a defendant, became the purchaser at sheriff’s sale. An account for hire is asked for in the bill against Wright, who has had possession since the sale, as well as further injunction as to all proceedings under the judgment against the negro. Mrs. Dillard claims the negro by a purchase at a former sheriff’s sale.
    The only question really at issue in this case, is as to Mrs. D.’s title, the judgment of the Morrises not being questioned; and but for the allegation of the slave’s being a family negro, the court of chancery could not take jurisdiction, she having a full remedy at law by action of detinue, trover, &c. Such being the fact, what interest have the Morrises, or Jones, in this case 1 Wright is a purchaser at sheriff’s sale, and she claims by title paramount to defendant in execution. This does not and cannot bring in question the judgment, execution, &c., unless where irregularity is complained of, and this only where Wright deraigns his title, he buying only defendant in execution, Dillard’s, title ; the Morrises and Jones have no interest, joint, direct, or collateral, in the issue between himself and Mrs. Dillard.
    Now, multifariousness in equity is likened to a misjoinder of parties, and causes of action at law, and is cause of demurrer, for making parties who have no joint interest, or joining matters unconnected.
    The true test of multifariousness, as to parties, is, have they a joint interest to be affected by the decree to be made 1 Story Eq. PI. 400, § 535. Ib. 224, '§ 271, and examples given, with a general survey of the doctrine. Apply the principle to the cause before the court. The Morrises have no interest, and will not be affected by the decree, let it be decided as it may. For instance : decide that Mrs. Dillard’s title is good ; here complainant gets the negro, but the Morrises and Jones are not affected, nor is the judgment, for the verdict on the judgment stands. Wright having bought the title of defendant in execution only, if it fails, it is his loss. Yet Wright must pay his own costs, and they theirs, or W right all, which is iniquitous, because it was unnecessary to join them in the cause.
    So on the other hand, what has Wright to do with the judgment 1 Nothing, unless it was questioned ; the allegation that a former suit in chancery had been compromised by Dillard, without his wife’s assent, does not alter the case, and is put in to prevent a plea of a former decision in the cause.
    The Morrises and Wright would be necessary and proper parties, before execution sale, to enjoin and prevent a sale. But afterwards the judgment is executed and has spent its force, and the case which then arises is stripped of all the parties in interest, in the proceedings at law, and is narrowed down to purchaser at such sale, and claimant of the property sold. And these parties could be, and are'forced in all cases, except for heir-looms, and in this country for family negroes, to resort to their remedy at law, which is clear and unembarrassed, ample and complete. In such cases the chancery court takes jurisdiction, because there is no legal remedy by which the specific property can be recovered with certainty. This explanation is made as a test of the necessity, for the additional parties which have been made.
    The bill is liable to a demurrer, in some sort, for a misjoinder of distinct matters, as well as for misjoinder of distinct persons, having no connection with each other as to the relief sought. The Morrises have no connection rvith, and should not be brought into the taking of an account by complainant, with Wright, for the hire of said negro, or the redelivery of said negro; with the quieting of the title of said negro under the judgment, Jones can have nothing to do, as his interest dates only from the execution sale.
    Another distinct matter is the prayer for further injunction as to Wright. The' bill would seem, then, to be framed for the following distinct purposes, with which Wright alone, of four defendants, appears to have any connection : 1st. To set aside sale under execution, issuing from a judgment belonging to Wright; 2d. To obtain a redelivery of the slave now in the possession of Wright; 3d. To quiet title to the slave, under a judgment which, if not extinct, is the property of Wright; 4. To have an account of hire taken with Wright; and, 5th. Future injunction, to prevent Wright from removing or secreting the slave. Story says there is no certain rule as to multifariousness, but that the discretion of the court must determine it, according to the facts of each case. I conceive, then, that no clearer case could be presented for the action of the court, when measured by the rule quoted in the commencement of this brief; and if this is really not a case of multifariousness, then the learning upon this branch of equity pleading is vain, and the writings and comments of eminent jurists are theories, beautiful, indeed, but useless, because they can never admit of a practical application.
    
      Foote and Hutchinson, for defendants in error.
    The bill, in any and every sense, is sustainable. It is a bill of husband and wife, in her right, to obtain specific restoration of a family slave. McRae v. Walker, 4 How. 455. Murphy v. Clark, Fall Term, 1843. The case presented is, that the husband was the former owner, but the slave was taken and sold on an execution against him; at which sale the wife’s relations, in sympathy for the distress and indigence of the family, contributed the money required to Curtis, her agent, who was the sheriff’s vendee, who presently conveyed to the wife, by deed, which was duly registered, giving implied notice to subsequent purchasers and creditors; that afterwards S. and E. Morris obtained judgments against the husband ; that after an apparent transfer of the judgments to Wright, executions on them were levied on the negro, and at the sale the right of the wife was proclaimed ; that Jones purchased, but presently delivered the slave to Wright ; and it is charged that Jones acted collusively with Wright, and only for his benefit. It is alleged that the annual service of the slave, since in Wright’s hands, was one hundred dollars. The prayer is that the judgments, as to the slave, be enjoined, the titles adverse to that of the wife vacated, the slave restored to her, and hire decreed against Wright, who has had possession since the last sheriff’s sale. It would at once occur to the pleader, as proper and necessary, to implead the judgment creditors, in whom the legal interest of the judgments still remained, in order to a perpetual injunction of them. The bill does not aver that Wright was the actual transferee of the judgments, but only that he appeared to be ; and whether the actual, or only ostensible transferee, it was plainly proper to make him a party. It was surely proper, likewise, to implead Jones, the vendee of the sheriff, and to visit upon him notice of the.female complainant’s ownership. The bill would have been demurrable for the omission of either. 2 Story’s Equity, 741, 742. Where, then, was the multifarious feature 1
    
    The doctrine on this subject is sufficiently elucidated by the chancellor, in Brinkerhojf v. Brown, 6 Johns. Ch. R. 139. The objection cannot be, that here any two or more claim, in distinct rights, without a common and dependent interest. Neither (in the language of Redesdale, in Whaley v. Dawson, 2S. &L. 367,) is it a case “ where there is a general right claimed by the bill, concerning the whole case, though the defendants have separate and distinct rights,” in which a demurrer was disallowed. It comes within the rule drawn by Chancellor Kent, on a review of the authorities, “ that a bill must, when against several persons, relate to matters of the same nature, and having a connection with each other, and in which all the defendants are more or less concerned.” Here there is but one right sought to be enforced, on one subject-matter, the family slave, and the injury occasioned as an incident, both to the right claimed and to the wrongful claim and detention adversely. In order to restore possession to the owner, and remove the impediments to the ownership, it was essential to implead all persons concerned in obtruding those impediments; and it being necessary to bring in Wright, as the actual vendee and adverse holder of the slave, it was surely conformable to all authority and practice to seek from him not only the slave, but the intermediate hire of the same slave, to avoid a suit at law for the hire. These, together, make but one demand.
    The counsel for the appellants have mistaken the application of the authorities they cite. The demurrer was properly disallowed ; and we insist that the Yice Chancellor’s decretal order ought to be affirmed. If S. and E. Morris, or Jones, wish to save costs, let the bill be taken as confessed as to them. If, however, S. and E. Morris did not transfer their judgments, and have rights they wish to protect in the matter, they can do so by answer. Costs will doubtless follow the decree, on the ownership of the slave.
   Mr. Justice Thacher

delivered the opinion of the court.

This was a writ of error to the decree of the inferior court of chancery.

A judgment at law had been obtained against Merrit Dillard, one of the defendant’s in error, and the execution thereon was levied upon a slave, his property. The friends of Dillard’s wife, who is another defendant in error, being desirous to relieve her necessitous circumstances, and prevent the sale to a stranger, of the slave, which was a family servant, contributed a sufficient amount, and caused the slave to be purchased at the sale, and given to her by deed. Other judgments were subsequently obtained against M. Dillard, which as the bill charges, appear to have been transferred to Wright. An execution on one of these judgments was levied upon the above-mentioned slave, which was purchased at the sale by Jones, as charged, in collusion with Wright, for Wright himself, to whom Jones delivered him on the day of the sale. The bill prays for a delivery of the slave to Dillard’s wife, that her title to the property be quieted, and that the judgment be declared void as far as the rights of Dillard’s wife to the property are concerned, and that her title be not again molested by further proceedings under the judgment; it also prays that Wright account for hire, &c. A demurrer was filed to this bill for multifariousness, which was disallowed by the Yice Chancellor, and leave given to answer. Wright answered to the bill, which waived his joining in the demurrer.

Multifariousness in a bill, is defined by Story, (Eq. Pl. 224,) to be the improperly joining in one bill distinct matters, and thereby confounding them, as for example, the demand of several matters of distinct natures against several defendants in the same bill. A demurrer for multifariousness will hold only where the plaintiff claims several matters of different natures, but when one general right is claimed by the bill, though the defendants have separate and distinct rights, a demurrer will not hold. Mitf. Ch. Pl. 182. The result extracted from the cases on the subject is stated by Story (Eq. Pl. 409,) to be, that where there is a common interest in the plaintiffs, and a common liability in the defendants, different claims may be united in the same bill. But what is more familiarly understood by multifariousness, as applied to a bill, is where a party is brought as a defendant upon a record, with a large portion of which, and of the case made by which, he has no connection whatsoever. Story Eq. Pl. 407.

The objects of this bill are the recovery of the slave by Dillard ’s wife, and the quieting of the- title in her, and the hire of the slave while in the possession of Wright. The question is now between the purchaser at sheriff’s sale, and a claimant of the slave. The title of M. Dillard, if any he had, has already been sold, and unless he becomes possessed of it, under a new consideration, it cannot be again sold under the same judgment. The plaintiffs in that judgment have neither legally or equitably any interest in the subject-matter and result of the suit. The purchaser of the slave at sheriff’s sale derived his title not from those plaintiffs, but he purchased the title of M. Dillard, whatever it might be, with notice of the claim of Dillard’s wife. There is nothing set forth in the bill that seems to connect the plaintiffs in the judgment, with the object of the suit, and no necessity apparent to enjoin the judgments as far as this property is concerned. It follows, then, that the plaintiffs in the judgment have no connexion whatsoever with the case made by the complainants below, and they had a right to demur, to avoid a useless expense.

The decree of the Vice Chancellor is reversed, the demurrer allowed as to Ethel S. Morris, and the cause remanded for further proceedings.  