
    *McDaniel v. Baskervill.
    January Term, 1856,
    Richmond.
    (Absent, Allen, P.)
    Deeds of Trust — Case at Bar. — By deed of marriage settlement the feme conveys several slaves to D in trust, among others, that if she should die in the lifetime of her husband, the trustee should deliver the property to her legatees. During the coverture D sold one of the slaves to B, and the wife by her next friend filed a bill against D and B to recover the said slave and for an account of profits; and there was a decree for the slave and for an account. Pending the suit the wife died having made a will, by which she gave all the trust property to her husband M. M then filed his bill against B and the administrator of his wife, in which he set out the proceedings in the previous suit, the death of his wife, and her will; and he prayed that the suit might stand in his name in that condition to enable him to recover the slave sold to B, and that B should be compelled to deliver the slave to him; or if the slave could not be had, that B should be made to account for his value and also for his hires. B demurred to the bill. Held:
    1. Chancery Practice — Original Bill. — M might have brought a new and independent suit in equity against D and B and his wife’s administrator for the purpose of recovering the said slave or his value, and so much of his hires as had not been paid to the wife in her lifetime.
    2. Same — Bill of Review. — But M might file a bill setting out the proceedings in the previous suit, and ask to have the benefit of said proceedings: and the prayer of the bill though informal, is substantially that prayer.
    3. Same — Parties.—That D the trustee is a necessary party.
    In March 1850 Daniel W. McDaniel filed his bill in the Circuit court of Mecklenburg, in which he stated, that in the year 1843 a-suit was instituted in the same court in the name of himself and his wife Diannah, the latter by her next friend, against Alexander Dortch and William Baskervill, the object of which was to recover of Dortch the hires of a negro boy named Asa, and to recover of Baskervill the boy Asa, and also his *hires for the time Baskervill had him. That Diannah McDaniel had, with his consent, previous to the marriage, executed a deed by which she conveyed to the said Dortch the negro Asa, a girl Chaina and other property, in trust for her exclusive use and benefit; and in said deed it was provided that Dortch should reconvey and deliver over all the property and the interest and profits thereof which might not have been paid over to her order during the coverture, to the said Diannah, if she should survive the said Daniel McDaniel; and if she should die during the coverture, then that the said Dortch should deliver over the said property according to her will. But if she should die without having made a will, that he should deliver the property over! to her heirs. That the said bill charged the trustee with having received large sums of money for which he had not accounted; and that the sale of the boy Asa by Dortch to Baskervill was without authority and void. That the court in that case decided that the sale of the boy Asa was without authority, and that Baskervill had no title to the boy, but that he belonged to the said Diannah, and that a commissioner of the court was directed to settle the account of the trustee.
    The bill further stated that during the pendency of that suit Diannah McDaniel died, hiving first made her will, by which she' bequeathed to the plaintiff her husband, the said boy Asa, the girl Chaina and her increase and all the other property she had. And it prayed that the suit might stand in his name in that plight and condition to enable him to recover the said bos’" Asa. And it prayed that the court "would decree that Baskervill should deliver up the boy Asa to him, or if he could not be had, that then Baskervill should be made to account to the plaintiff for the full value of him, and also for his hires. The only defendant made in this suit was Baskervill.
    *Before the defendant appeared the plaintiff amended his bill, and after repeating what he had before said, he stated that the will of Diannah McDaniel had been accidentally destroyed by fire; but that its purport and contents had been set up and established as her true last will by the County court of Mecklenburg. And he exhibited with his bill a copy of the order of the County court establishing the will and stating its contents. The prayers of the bill are the same as in the former; and Baskerv ill and John E. Einch the sheriff of Mecklenburg and as such the administrator with the will annexed of Diannah McDaniel are made parties defendants.
    Baskervill appeared and demurred to the bill, on the grounds, first, that the plaintiff’s title to the boy Asa, if any he had, was acqrtired after the filing of the original bill, and had no connection or dependence upon the title of Diannah McDaniel the plaintiff in the original bill. Second, that the plaintiff had a clear remedy at law, and a court of equity had no jurisdiction of the case.
    Beside the will of - Diannah McDaniel which gave all her property including the boy Asa, to the plaintiff, the deed of marriage settlement was filed, by which the property was settled to her separate use with the provision stated in the bill.
    The cause came on to be heard on the 20th of September 1852, when the court sustained the demurrer and dismissed the bill with costs. ‘Whereupon the plaintiff applied to this court for an appeal, which was allowed.
    Bouldin, for the appellant:
    This is not a bill of revivor, but an original bill in the nature of a supplemental bill. But if the bill sets out a ground of relief, the court will consider it just of such a nature as the case may require. And to *'show the liberality of the court as to pleadings in equity, I refer to Kyle v. Kyle, 1 Gratt. 516. That the interest of the plaintiff is so connected with the interest involved in the original bill as to entitle his plaintiff to file an original bill in the nature of a supplemental bill, see Story’s Equ. PI. || 346, 349, 350, and note to this last section; 3 Daniel’s Ch. Pr. 1718 to 1723.
    As to the jurisdiction, clearly the plaintiff in the first suit was properly in equity. In that suit there was a decree for an account and a decree affirming the title under which plaintiff here claims. Even if the plaintiff held the legal title, he is entitled, under the circumstances, to the aid of a court of equity to enforce his rights. But the legal title is in the trustee, whose duty it is to deliver over the property, and he refuses; then surely we may come into equity to compel him. The case is much stronger for the interposition of a court of equity and the privity of the titles more perfect than in the case of Robinson v. Day, 5 Gratt. 56, in which the bill was sustained and relief was given.
    In this-case there are strong reasons why the plaintiff should be allowed the benefit of the previous proceedings. The statute of limitations might bar the recovery of the profits if the plaintiff is put to commence an .original proceeding, though in the first suit there has been a decree for an account.
    Joynes, for the appellee:
    The court will find that it requires not only great liberality but some charity of construction to make anything out of this bill. The only thing stated is that the plaintiff is the owner of a slave in the possession of Baskervill, and asks that it may be delivered up to him. He claims nothing by virtue of the previous *proceedings, and does not exhibit the papers. And states no difficulty in proceeding at law.
    The title set up in the bill is purely legal. The title of the trustee is commensurate with the trusts. If the purposes of the trust are exhausted with the life or coverture of the cestui que trust, the estate of the trustee then terminates, though an estate of inheritance is granted to him. Hill on Trustees 239. Dortch’s estate, then, was only commensurate with the objects of the trust, and they continued only during coverture. If the party named in the will had been named in the deed, he would have taken a legal estate in remainder after the estate for life. So though not named in the deed, yet the power exercised in his favor made him a remainderman in the deed, and gave him the legal title. Then where was the difficulty in suing at law.
    In order to show the nature of the class of bills into which the counsel on the other side would introduce this bill, the court is referred to the authorities cited by the counsel, and to Daniel’s Ch. Pr. 1666. In a supplemental bill the old proceedings become a part of the new cause, and the papers are incorporated with it. These authorities imply that the plaintiff must have ground of his own on which to stand in court. He is not entitled to the benefit of what is done in the first cause. There may be a new defense; there must be other evidence; and even if there is a decree in the first cause, it can only be relied on as inducement, not as binding the rights of the parties. Then, in this case, the prayer for the benefit of the previous proceedings is improper; and the plaintiff is not entitled to the benefit of that suit.
    
      
      Chancery Practice — Bill of Review, — The principal case is cited and approved in Reid v. Stuart, 20 W. Va. 392.
    
    
      
      Chancery Practice — Parties.—In Simon v. Ellison, 90 Va. 158, 17 S. E. Rep. 836, it is said: “Mr. Barton says in his Chancery Practice, vol. 1, sec. 35: ‘It is a general rule in equity that all persons interested in tlie subject-matter of the hill, and which is involved in and to he affected hy the proceedings and result of the suit, should he made.parties, however numerous they may he.’ Citing numerous authorities, the decisions in this State are in an unbroken line; and upon plain principles he whose rights are to he affected hy any proceeding should he before the court, and have an opportunity to he heard. Otherwise he is not hound hy the decree. Clark v. Long, 4 Rand. 452; Richardson v. Davis and Wife, 21 Gratt. 709; Armentrout’s Ex’or v. Gibbons. 25 Gratt. 875; Barton’s Ch. Pr. p. 219, vol. 1, sec. 74; Collins v. Lofftus & Co., 10 Leigh 5; Commonwealth v. Ricks, 1 Gratt. 416; McDaniel v. Baskervill, 13 Gratt. 338; Story’s Eq. PI. §§ 207,210; Fitzgibbon v. Barry, 78 Va. 755; Stovall v. Border Grange Bank, 78 Va. 188.”
    
   DANIEL, J.,

delivered the opinion of the court:

It seems to the court, that as by the terms of the *deed,of marriage settlement of the 9th of November 1831, it is made the duty of the trustee Dortch, in case of the death of Mrs. McDaniel occurring before that of the appellant, to pay and deliver over all of the property in said deed embraced, according to her last will and testament; and as by her last will and testament she has bequeathed to the appellant the negro man Asa and all the other property to which she was entitled, it was competent for the appellant, upon the state of facts alleged in his bill, to have brought a new and independent suit in equity for the purpose of recovering the said negro or his value, and so much of his hires as had not been received by Mrs. McDaniel in her lifetime, making the appellee Baskervill, the trustee Dortch, and the legal representative of Mrs. McDaniel, all parties to his bill.

It seems, however, further to the court, that as Mrs. McDaniel had in her lifetime instituted her suit in equity .against the appellee and the said trustee, for the purpose of recovering said slave or his value, and of having a settlement of the account of trustee, it was not necessary for the appellant, in order to obtain the relief sought by him, to bring a suit wholly independent of the suit so commenced by Mrs. McDaniel; but that it was competent for him, in a bill setting forth his case and the previous proceedings had at the instance of Mrs. McDaniel, to ask to have the benefit of said proceedings.

And it seems further to the court, that the prayer in the bill of the appellant .in respect to the proceedings had in Mrs. McDaniel’s suit, though informal, is still a substantial prayer to be allowed to have the benefit of said proceedings.

The court is therefore of opinion, that the appellant has in his bill and amendment thereto stated a case entitling him to . the aid of a court of equity, and that *the decree of the Circuit court sustaining the demurrer and dismissing the bill is erroneous.

And it seems also to the court, that it would be premature in this court to express any opinion as to. whether the appellant is^ entitled to have the benefit of the proceedings in Mrs. McDaniel’s suit, absolutely, under the rules which ordinarily govern in cases of bills simply supplemental, or on such terms as are usually imposed in cases of original bills in the nature of supplemental bills. In either aspect, however, it seems to the court proper that the appellant should make the trustee Dortch a party to his bill.

The court doth therefore adjudge, order and decree,' that the decree of the Circuit court be reversed with costs, &c. And the cause is remanded, with liberty to the appellant to amend his bill and make new parties; and for further proceedings in accordance with the principles above declared.

Decree reversed.  