
    John Delafield et al. vs. Richard W. Anderson.
    A bill to set aside a sale of land, under execution, making the several purchasers at the sale, though they bought different and distinct interests, and the plaintiffs in the execution, under which the sale was made, all defendants, is not multifarious, on account of an improper joinder of parties.
    Inadequacy of price, without fraud, is not a sufficient ground for setting aside a sale of land under execution.
    The interest of a party in land, who holds only a bond for title when the purchase-money is paid, and who has paid only a part of the purchase-money, is not subject to sale under an execution at law.
    On appeal from the superior court of chancery; Hon. Robert H. Buckner, chancellor.
    On the 16th day of July, 1S44, Richard W. Anderson filed, in the superior court of chancery, a bill against John Delafield, Joseph D. Bean, Knowles Taylor, Morris Ketchum, Benjamin Curtis, John Bolton, Charles Atway, David Hubbard, Richard Bolton, James H. Hearing, Isaac Mayfield and James Canni-way, alleging that in 1835 or 1836, a large company or association of men, known as the “New York and Mississippi land company,” was formed for the purpose of trading in lands in Mississippi; among other members of the company, were John Delafield. Joseph D. Bean, Knowles Taylor, Morris Ketchum, Benjamin Curtis, and John Bolton, who were elected trustees of the company, and in their names all the titles to lands belonging to the company were taken, and by them all sales and conveyances were made; that on the 8th day of October, 1836, the company, by their lawful agents and attorneys in fact, David Hubbard and Richard Bolton, contracted and sold to him ten sections of land, described in the bill, for thirty-one thousand dollars, one-third payable in cash at the time of the purchase, and the balance in two equal instalments, at one and two years, and in pursuance of that contract, he paid in cash, seven thousand five hundred dollars, which was all the money ^e then had on hand ; and for the residue of the cash payment, he gave his note, payable on the first day of March, 1837, with interest from date, and for the balance of the purchase-money, he gave his two bills single, for the sum of ten thousand three hundred and thirty-three dollars each, payable on the 1st day of October, 1837 and 1838, and took from the company a bond conditioned to make a good and sufficient title, in fee simple, to the laud, upon the payment of the purchase-money, which bond was made an exhibit to the bill; that the note given for the residue of the cash payment, due on the 1st day of March, 1837, was paid at maturity; that on the 3d day of January, 1838, the company sold to him another section of land, for which he paid in hand, six hundred and forty dollars, and gave two notes for six hundred and forty dollars each, payable on the 8th day of October, 1838 and 1839, and took from them a bond, which was also conditioned to make a title when the purchase should be paid, and that bond was also made an exhibit to the bill; that from unfortunate pecuniary embarrassments he was unable to pay either of his notes or bills single, when they became due, and on the 9th day of July, 1842, suit was instituted against him, in the circuit court of Monroe county, on one of his bills single, and on the 24th day of April, 1843, a judgment was rendered against him for ten thousand three hundred and thirty-three dollars debt, and three thousand seven hundred and fifty-four dollars and thirty-two cents damages, besides costs of suit; upon which judgment an execution was issued, directed to the sheriff of Chickasaw county, who levied the same on 2629i6¡| acres of land, for which complainant, in the year 1836, paid the government of the United States, at the rate of one dollar and a quarter per acre, and on the 14th day of August, 1843, the sheriff sold the whole of the land levied on, to Joseph D. Bean and others, agents of the company, for two hundred and ninety dollars, and executed to them a -deed therefor, which was made an exhibit to the bill; that when the levy and sale were made, he was out of the state, and knew nothing of either until the sale was over; that the price for which the land was sold, was grossly inadequate, as either section was worth, at least, three dollars per acre. The complainant further charge that another execution was issued on the same judgment, directed to the sheriff of Monroe, and levied by him on the 4th day of September, 1843, on ten sections of land, and sold all of them to Joseph D. Bean and others, trustees of the company, for five hundred and five dollars; that eight of the ten sections were the same purchased by him of the company, as above stated, for which he only held a bond for title, when the purchase-money was paid, and at least two-thirds of the purchase was unpaid at the time of the sale, and no portion of it had been paid since; that he therefore owned only an equitable interest, which he was advised was not subject to sale under an execution at law, and that the sale to the company, or their trustees, by the sheriff, was void; the deed from the sheriff of Monroe to the purchasers was also made an exhibit to the bill; that two of the sections sold by the sheriff of Monroe to the trustees of the company, being part of the ten sections above-mentioned, were purchased by him of Henry Anderson and William Winston, and held their bond to make him a title, when the purchase-money was paid, and that all of the purchase was still unpaid, so that the sale of those two sections was also void; that since the sale by the sheriff of Monroe, the trustees of the company had contracted to sell, or had sold, to James H. Dearing, two sections of the same land, for twelve thousand seven hundred and ninety-nine dollars, which sale he was willing to ratify, if they would have placed the proceeds thereof to his credit, but they refused to do so; that another execution was issued on the same judgment, and on the 15th day of April, 1844, one-quarter section of land was sold by virtue thereof, to Isaac Mayfield, for fifty dollars, which complainant subsequently sold and conveyed to Mayfield, for four hundred and ninety-six dollars; and another quarter section was sold to Isaac Mayfield and James Canniway, for fifty dollars, which was worth five hundred dollars; these two quarter sections were not part of the same land purchased by complainant of the company. The bill charges that these various acts of the company were greatly prejudicial to his interest, inasmuch as the company pretended to be the owners of all the land purchased by them at the sheriff sales, and stated that complainant had abandoned his contract; and they had thereby broken off many advantageous trades, in relation to the land, which had been previously made by him; that he had paid the company for the land about eighteen thousand dollars, including interest, and been at great expense and trouble about the same; and he then had an opportunity of reimbursing his outlay, if he was not prevented by the clouds and incumbrances which the sheriffs sales and deeds to the company cast over his title. The prayer was, that the several sales made by the sheriffs be set aside, and the deeds executed by them, be delivered up and cancelled, and that the deed to Dearing be also delivered up and cancelled, or that the whole contract with the company be rescinded, and they be decreed to refund to the complainant the money he had paid them, with interest, and that the land be sold for the payment thereof; and that they also be compelled to reconvey to the complainant all the land purchased by them at the several sheriffs sales, which he had not previously bought from them. To this bill the defendants demurred. On the 7th day of January, 1845, the chancellor overruled their demurrer, and they appealed to this court.
    
      William G. Thompson, for appellants.
    The cause of demurrer assigned, specially, is multifariousness. The several purchases complained against are wholly unconnected. The purchasers, it is true, all claim under the same judgment against the complainant. In this point they are all interested; at this point they are all connected. But they are not brought into this cause on the ground that they, claim under the judgment. The judgment itself is not complained against. It is only when several persons have a common interest in the point of litigation, that they can be joined in one suit. The judgment is not the point of litigation here. The complainant does not pretend that the judgment is invalid or satisfied, and that sales ought not to be made under it. The only grounds of complaint are, that although the judgment and the executions are valid and good, the executions ought not to have been levied on the particular parcels of property mentioned in the bill, as to two of the executions, and as to the other, although the levy was proper, the sale should be set aside for inadequacy of price. Now in respect to these grounds of complaint, or points of litigation, the defendants are wholly unconnected. Their purchases were made in several different counties, under several different executions and levies. There is no sort of privity between them, in regard to the several levies and sales, and the several executions. It is only the levies and sales which are attacked. The levies and sales form the points of litigation. In these points the defendants have not a common interest. Any one of the levies and sales may be set aside and all the rest sustained. There is no sort of connection between them. It would be otherwise if the bill sought to set aside the judgment, if that were the point of litigation. In that case there would be, in regard to the object of this suit, a connection between the several executions, levies and sales, and a connection between the several purchasers. Several defendants cannot be united in one suit, unless they have a common interest in the point of litigation. The several purchasers here have a common interest under the judgment; but the judgment does not form the point litigated. The complainant does not assert one general right against all the defendants. If he asserted a right to relief against the judgment, it might be considered perhaps one general right against them all. But he seeks no relief against the judgment. The bill seeks to set aside one or more of the purchases on the grounds of inadequacy of price and surprise; and others, on the ground that he had not such an interest in the land as can be sold under execution.
    
      William Yerger, for appellee.
    A bill is said to be multifarious where it improperly joins several distinct and'amconnected matters against the same defendant, or the demand of several matters of distinct natures against several defendants. Story’s Eq. PI. 225.
    But a bill is not to be treated as multifarious because it joins two good causes of complaint growing out of the same transaction, where all the defendants are interested in the same claim of right, and. where the relief asked for is of the same general character. Story’s Eq. PI. sec. 284-286.
    The case of Wright v. Shelton et al. is directly in point, and settles this demurrer in favor of complainants. 1 S. & M. Ch. R. 399; see also the case of Martin, Pleasants & Co. v. Glass-cock et al. 1 S. & M. Ch. R. 17; I would also refer to the case of Voorich v. Smith, 5 Paige’s R. 160.
    A demurrer will not be sustained for multifariousness which contains two distinct subject-matters wholly disconnected, if one of them is out of the jurisdiction of a court of equity, for redress. Story’s Eq. PI. 232 ; 5 Paige, 137; 1 S. & M. Ch. R. 17.
    Testing this case by the above rules, and it can clearly be sustained. It is a bill filed against several defendants it is true, to set aside several sales made to them, but the sales were made under the same execution. It'is the same general claim of right, to wit, a right to have them set aside because of inadequacy of price, and of want of legal interest subject to sale. All the defendants claim by virtue of sales made under the same execution, all of which sales are alleged to be illegal, and proper to be set aside; so that it is the case of a complainant having a single cause of complaint against several defendants claiming under the same right, or of a complainant having two good causes of complaint growing out of the same transaction against several defendants.
    As to the general equity of the bill I refer the court to the cases of Moody v. Farr, 6 S. & M. 100, and Goodwin v. Anderson, 5 S. & M. 730.
    
      Gholson, for appellants.
    It is contended, on the part of the appellants, that the decision of the chancellor, overruling the demurrer to the bill, should be reversed, and that the demurrer should be sustained by this court, and the bill dismissed.
    1. The bill is multifarious, because it embraces three distinct and independent matters, involving separate inquiries. 1 Story’s Eq. PI. sec. 271.
    But it is still more clearly multifarious in another point of view. Under the executions before referred to, a sale of part of the lands to which the complainant had a legal title, was made to Delafield and another, and of another part to Mayfield and Canniway. This bill brings both sets of purchasers before the court, and seeks to set aside both sales. Had the complainant himself made the sales, he might with the same propriety have joined them in the same bill, to obtain a rescission of the contract of sale, or a specific performance. 1 Story’s Eq. PI. sec. 272.
    2. The demurrer should also have been sustained, because it appears from the bill that the complainant is not entitled to any relief.
    There are two grounds on which the relief asked by the complainant mainly rests; 1st. As to the lands to which he had a legal title, that they were sold at an inadequate price ; and 2d. As to those in which he had an equitable interest; that such interest was not subject to sale under an execution at law. . If the complainant cannot maintain these grounds, his whole claim to relief fails.
    In relation to the first ground, this bill presents the naked question, whether, without any allegation or suggestion of fraud, a sale under the regular process of a court of law will be set aside in equity, on the main ground of inadequacy of price?
    That judicial sales by public auction will not be set aside in equity on this ground, is believed to be a clear and well settled principle. It has been admitted by the chancellor, whose decision is now under consideration, that the inadequacy of price must be connected with other facts tending to show fraud and unfairness. Newman v. Meek, 1 Freeman’s Ch. R. 458; Reynolds v. Nye, Ibid. 469.
    
      The next question, whether an equitable interest in lands can be sold under an execution at law, depends entirely, on the construction to be given to the statutes of this state; unless the authority to make such a sale can be found in the statutes, it is admitted, that, upon general principles, and upon the authority of decisions in other states, it cannot be made.
    The 1st section of the act concerning executions gives a writ of fieri facias for taking the goods and chattels, lands and tenements of the defendant, against whom a judgment is rendered. Subsequent sections provide for the mode in which lands and tenements may be sold ; and the 48th section (How. & Hutch. 644,) is in these words: “ When lands and tenements shall be sold, according to the provisions of this act, by virtue of any writ of fieri facias, capias ad satisfaciendum, or venditioni exponas, or other legal process, it shall be the duty of the sheriff or other officer, by whom such sale shall be made, on Ihe payment of the purchase-money, to execute to the purchaser or purchasers, such deed or deeds of conveyance, as may be necessary and proper, to vest in the purchaser or purchasers, all the right, title, interest, claim, and demand, of the debtor or defendant, which he had in and to such lands and tenements so sold, either in law of equity.”
    The terms lands and tenements, in the elementary books, are used to distinguish two of the several kinds of things real or real property. The term lands and tenements of the defendant, may properly be construed to mean, lands and tenements belonging to the defendant, or in which he had an estate or properly. If these terms alone had been used in the statutes they would, perhaps, by a fair construction, be considered as subjecting to sale under execution any real estate of the defendant, or any legal interest which the defendant had in lands and tenements. This, however, would be the result of construction, for the statutes, independent of the 48th section, above quoted, do not in express terms refer to the estate or interest in lands and tenements which may be sold. In fact the term of the defendant would rather imply an absolute right, and not permit the sale of any less estate than one in fee simple. There would be nothing, independent of that section, to show certainly that an estate for life, or other estate less than a fee, could be sold under execution.
    These remarks are submitted to show the necessity of having recourse to the 48th section to determine what estate or interest in lands and tenements may be sold under execution at law, and that it must have been the intention of the legislature by that section to provide for that important point.
    If, then, we are to look to the 48th section, to determine what estate or interest of the defendant may be sold under execution and vested in the purchaser, all doubt on the subject appears to be at. an end. The legislature had the right to authorize the sale of an interest in equity, and it is clear that such an interest is embraced within the express words of that section of the statute. Nothing can be more-explicit or stronger than the words used; the purchaser is to be vested with all the right, title, interest, claim and demand of the debtor or defendant, which he had in and to such lands and tenements so sold, either in law or equity. It is not necessary that the defendant should have the right and title to the lands, but his interest in them, his claim or demand to them may be sold, and that, too, whether it be in law or in equity.
   Mr. Chief Justice Shaekey

delivered the opinion of the court.

Anderson filed this bill to set aside certain sales of land made under executions, because of inadequacy of price, and because as to part of the land he had but an equity under a bond for title, which was not the subject of sale under execution at law. The respondents were the purchasers, part of whom were also the judgment creditors, as well as the original vendors of part of the land.

It seems that Anderson, in the year 1836, with a view to speculation, purchased a large quantity of land from the New York and Mississippi Land Company, for which he contracted to pay $31,000, one third in cash, and the balance in two equal instalments. He made the cash payment and executed two writings obligatory for the remainder, on one of which suit was brought, and under the judgment the lands were sold, the plaintiffs in execution becoming the purchasers at very low prices. But land to which Anderson had a legal title was also sold and mostly purchased by the judgment creditors. From the company he had received only a bond to make title on-payment of the purchase-money. The complainant avers that he was absent from the state at the time of sale, and had no knowledge of it.

The respondents demurred to the bill for multifariousness, and because it does not present a case which entitles the complainant to relief. There is but a single feature in the case which in any way gives countenance to the charge of multifariousness. There were three different sales, under as many different executions; one made by the sheriff of Chickasaw county; one by the sheriff of Monroe county, and as to the third it does not appear where it was made. The two first were made in 1843,, and the judgment creditors were the only purchasers. The last was made in 1844, at which Isaac Mayfield purchased one quarter section of land for fifty dollars, and Mayfield and Canniway purchased another quarter section at fifty dollars. This was not part of the land which had been purchased by Anderson of the land company, and as nothing is said about the title, we must suppose it was a legal one. The point of interest is certainly remote as between Mayfield and Canniway and the other defendants. It would seem that the sale to one might be set aside without interfering with the sale to the other. Mayfield and Canniway had no interest whatever in the sale made to the land company; nor does the circumstance that they both derived title under the same judgment make any difference. The judgment is not questioned. But there is a point in which a joint interest is concentrated. The land company were the judgment creditors, and entitled to the money paid by Mayfield and Can-niway. If the sale is rescinded, they must refund, and on that account they have such an interest in the sale made to Mayfield and Canniway as entitles them to insist upon its validity. It is true that if the sale should be rescinded, their lien may again attach on the land, but still they have a right to resist such a consequence, if they think proper. If the land did not bring its value, it would seem to be to their interest that the sale should be set aside, and yet they have a right to insist on holding the fund which they have received for it. It is plain, then, that they are properly joined with Mayfield and Canniway as parties, as a decree to rescind would effect them both. We conclude, then, that the bill was not multifarious in consequence of the improper joinder of parties.

As to the allegation of inadequacy of price it is entirely naked. It is not coupled with a charge of fraud or combination. It is not urged as amounting to evidence of fraud. It does not seem to come fully within the rule which has usually been adopted by courts of chancery in setting aside sales for inadequacy of price. If the merits of the bill rested on this allegation alone, the demurrer for want of equity might reach it; but it does not. It seems that a large quantity of the land sold was held by Anderson under no other title than a bond from the vendors to make title on payment of the purchase-money, only one third of which had been paid. Pie held therefore but an equity which was not the subject of sale under an execution at law. This question is fully covered by the decision in the case of Goodwin v. Anderson et al. 5 S. & M. 730, to which it is sufficient to refer. We think the respondents should have answered the bill, and therefore affirm the decree, and remand the cause.  