
    MEAD AND BEEKMAN vs. KNOX.
    1. Complainants filed their bill to compel defendants to re-assign a leasehold interest in real estate, which they had absolutely assigned to defendant. The supreme court approved, the action of the circuit court in dismissing the bill without prejudice.
    APPEAL FROM ST. LOUIS CIRCUIT COURT.
    
      Goode & Glover, for appellants.
    1st. That though the transaction mentioned in the pleadings, may appear upon its face in the assumed character of an absolute sale, yet the testimony proves that at the time it was intended by the parties, and was merely a mortgage for the security of advances made by the defendant, and the court will so treat it, it being a question of fraud.
    2d. That the. paper purporting to be signed by one of the complainants, giving the transaction another and different character from that asserted in the bill, cannot be viewed by this court in its weight of testimony, as testimony, because it is the admission of one partner against his co-partner, after the dissolution of partnership. Baker vs. Starkpoole, 9 Cowan, 433 5 Chapin vs, Coleman, 11 Pick., 331; Hopkins vs. Banks, 7 Cowen, 65Q ; Wiggins vs, Hammond. 1 Mo. Rep, 121; Owings vs. Loid, 5 Gill. & John, 136.
    3d, Not can the court view it in any aspect, or as p:oving a want of interest in one of the parties, complainants, in the subject matter of the suit so as to justify the court below in its dismissal of the bill.
    4th. A court of equity never dismisses a bill for want of proper parties, nor
    5th. As a necessary corrollary for joinder of improper parties-
    6th. If the question could be raised before the court at all in this manner, the proper course of the court below was to have allowed the complainant Garrett, T. Beekman, an opportunity for amendment. Lloyd vs. Makeam, 6 Vesey’s, Chy. Rep., p. 144 ; Greene vs. Poole, 5 Browns cases in parliament, p. 504.
    7th. If there was a want of interest in any one of the complainants, the defendant, if the defect appeared upon the face of the bill, should have demurred, or if not, should have pleaded the fact, or in any event he should have insisted upon it specifically in his answer by way of defence,
    8th. It is too late at the hearing to start the objection that some or one of the complainants have no interest in the subject matter of the suit. Wilkinson vs. Perry, 4 Russ. 272. The E. J. Company vs. Baldwin, 9 Vesey Jr., 467.
    9th. The court should have gone on, and decreed as to the complainant Garret T. Beekman, if as the decree of the court below admits, there was equity in his bill. Story’s Equity Pleading, Sec 544, 542.
    10th, This feature of the case can only he viewed by the court as a release by the complainant Alped Mead, to the defendant, and the rule is, that one cotenant cannot, by a release to a defendant, abate the bill of complainant filed by a joint tenant, jointly with himself. 2 Ereem. 6, cited in Edward’s parties in chancery, p. 45.
    11th. If the court is not satisfied that the court below should have gone on, and decreed for the one complainant, still the decree should be reversed for the purpose of enabling the complainant Beekman to amend his bill, by making his co-complainant a defendant, and bring his bil1 to a hearing upon the new state of facts presented by the evidence.
    Gamble & Bates, for appellee.
    1st. The bill admits that the written contract between the parties is in terms absolute and final, and not conditional, nor provided as a security only, and sets up only a private verbal understanding, against the terms of the written contract, and positively denies any such verba! understanding, and the answer is not rebutted by any sufficient testimony. If this be so, it disposes of complainants case, as to what is sufficient testimony to rebut the answer. See 9 Mo. R. 226, Gamble et al vs. Johnson.
    The rules of evidence at law and in chancery are the same.
    It is not competent to show, by parol evidence, that a deed absolute in its terms was intended to be conditional/without showing also fraud, accident or mistake, in obtaining the deed. 10 Mo. R. 488, Hozel vs. Lindell; also 10 Mo R. 506, Montgomery vs. Rock.
    2d. The affidavit and disclaimer of the eomplaintant Mead, as evidenced, is conclusive against the equity of the bill. 7 Mo. R. 386, Dillon vs. Choteau.
    It is not as Beekman’s counsel supposes, an admission of a copai tner, after dissolution; but a solemn declaration of a joint, contractor and joint plaintiff, denying the only allegation in the bill, on which a claim of equity could be maintained, and in this particular concurring with the answer. If Mead’s declaration be no evidence, neither would a similar declaration by Beekman, and so both might recover, against the sworn declaration of both, that they had no honest claim!
    Certainly Mead’s declaration would be good evidence against himself, and therefore the court could not reject it j and the bill does not set up any separate contract or understanding by Knox with Beekman alone.
    3d. The record presents no question as the misjoinder or nonjoinder of paities. If the subject matter were truly stated in the bill, then the parties were right. It is only because the defendant and one of the plaintiffs deny the truth of the bill, that the other complainant thinks there is something, wrong about the parties.
    The defendant has never raised an objection that one of (he complainants had no interest in the subject matter. On the contrary, the objection was, and is, that there is no subject matter in w hich all or any of the complainants had a valid interest against the defendant.
    4th. The claim of Beekman’s counsel that Mead’s affidavit ought to be considered a release, we think a mere error in fact. It does not profess to discharge an existing obligation, but is asimple denial of the existence of any such obligation.
    5th. The decree is right in all respects, except that it is too lenient in dismissing without prejudice as to Beekman.
   Napton judge,

delivered the opinion of the court.

This was a bill in chancery to compel a re-assignment of a leasehold interest in St. Louis lots, assigned by the complainants to the defendants.

The complainants were partners in purchasing a'leasehold interest in a lot of ground in St. Louis, and in erecting buildings thereon. Becoming embarrassed in the progress of their buildings, they "applied to the defendant Knox for assistance. Knox made several advances to them, endorsed their notes, and they finally executed to him an assignment of the lease. This assignment was absolute on its face, but the complainants allege that it was understood at the time of its execution among all the parties, that it was to be re-assigned so soon as Knox reimbursed himself for the money he had advanced. This understanding, it is further alleged, was to have been reduced to writing, but from some cause was neglected. To enforce this agreement, and compel a re-assignment of the lease, is the object of the bill.

The defendant insisted upon the assignment as absolute.

At the hearing, evidence was given by the complainants to establish

the allegations of their bill; the defendant read an affidavit of Mead, after proving his signature, to the effect that the assignment from Mead and Beekman to Knox, was absolute and unconditional; that there was no understanding or agreement, that Knox should reconvey, or any understanding that such agreement to recovery should be reduced to'writing.

Evidence was given on behalf of the complainants to destroy the credibility of this affiant.

The circuit court dismissed the bill without prejudice to Beekman, and from this decree Beekman has appealed.

We have not entered into the details of the bill, answers and evidence, because it is obvious that the merits of the case, so far as Beekman is concerned, have not been determined by the circuit court, and cannot be determined here. The circuit court dismissed the bill without prejudice to Beekman.

It is contended that this decree is erroneous, on the ground that Mead’s affidavit merely amounted to a disclaimer of interest on his part, and that it was no ground for dismissing a bill at the hearing; that there were not proper parties, or that improper parties were joined. We do not view the action of the circuit court in this light. The affidavit of Mead was at least evidence against himself. That defendant distinctly denied any material allegation of the bill. No application was made to the court for leave to amend and make Mead a party defendant, and it was impossible for the complainants, or either of them, to have a decree upon the allegations of the bill as they stood. It cannot be pretended that Mead was entitled to a decree against his own affidavit, and it is not easy to see how Beekman could have a decree upon the bill as it stood.

The bill charges that the complainants were partners in this purchase of leasehold property; that as such partners they made the assignment to Knox, and as such they were entitled to a reassignment; and the prayer of the bill is, that the lease be reassigned to them. It is not denied that a court may grant, under the prayer for general relief, a relief different from the specific relief sought; but the decree must be warranted by the allegations and proofs. The testimony of Mead put a new face upon the transaction; it was conclusive against any relief to him, and if there was a fraudulent combination between him and the defendant, it was proper that the bill should be modified to suit this altered state of things. The circuit court would doubtless have permitted an amendment, but this was not asked, and the least which the court could do was to dismiss the bill without prejudice to Beekman.

It will be observed that there was no evidence to show that Beekman and Knox had ceased to be partners, The partnership Was no doubt considered at an end by Mead, as it only extended to the mutual interest of the complainants in this leasehold property, and as the property had'been, according to his statement, unconditionally disposed of, the partnership of course ceased. But there is nothing in the affidavit of Mead, or in any other testimony, showing that Mead had sold his interest to any other person than Knox. If the allegations of the bill were sustained against the affidavit of Mead, the partnership continued, and Meed was entitled to the benefit of the decree sought. There is no disclaimer of interest on his part in the subject matter of the suit, but a statement that neither he nor his partner had any interest in the leasehold property, and that they had sold it unconditionally to the defendant. It may well be questioned, then, whether Mead’s testimony would be liable to the objection, even as against Beekman, of confessing away the rights of his co-partner after dissolution. His interest had not ceased, any more than that of Beekman. The falsity of his affidavit, if it be false, must be put upon the ground of a fraudulent combination with the defendant.

There was some evidence on this subject, but there was no allegation in the bill to which such evidence could be applied.

The other judges concurring, the decree is affirmed.  