Ford v. Borders

• Decision Date: 01 February 1917
• Docket Number: 7 Div. 854
• Citation: 200 Ala. 70,75 So. 398
• Parties: FORD v. BORDERS et al.
• Court: Alabama Supreme Court

75 So. 398

200 Ala. 70

FORD v. BORDERS et al.

7 Div. 854

Supreme Court of Alabama

February 1, 1917

On Application for Rehearing, May 17, 1917

Appeal from City Court of Anniston; Thomas W. Coleman, Jr., Judge.

Suit by May C. Ford against C.S. Borders and another. Decree for respondents, and complainant appeals. Affirmed.

Appellant in her individual capacity, filed the original bill against C.S. and Ab. G. Borders, appellees, as tenants in common of a certain tract of land. The bill sought a sale for distribution of the common property, and an accounting as for the purchase price paid for the lands, and as for rents, and as for certain timber used by respondents and charcoal sold from the lands.

Complainant's claim of title to the land was under a will executed by her mother, who, together with C.S. Borders, purchased the lands as tenants in common.

The claim of the respondent Ab. G. Borders was also by virtue of the will of Mary E. Borders, the mother of complainant, who devised her interest in the lands to complainant and Ab. G. Borders.

There was no contest of the facts that complainant and respondents were tenants in common, and that the lands should be sold for distribution. The respondent C.S. Borders, however, denied complainant's right to an accounting in her individual capacity as for rents accruing prior to the death of testatrix, which was in July, 1910.

The complainant then amended her bill by joining herself as administratrix of the estate of her mother with the will annexed with the original complainant; whereupon the respondent C.S. Borders demurred to the amended bill as for a misjoinder of parties and multifariousness, but the demurrer was overruled. The complainant again amended her bill setting up the statute of limitation and of nonclaim to some of the matters set up in respondents' answer, and subsequently amended it by setting up a partnership for farming between her testatrix and C.S. Borders, and praying an accounting as to this partnership affair. In addition to the above, this amendment set up that from the year 1899 or 1900 to 1903 C.S. Borders, acting as the agent of complainant's testatrix, had received the rents and proceeds from two other places owned by testatrix, and that he had never accounted therefor, and sought to have him so account in this suit. The accounting as for the two places last referred to was sought by complainant in her representative capacity; while the accounting as for the rent of the place sought to be sold was asked by complainant individually and on behalf of Ab. G. Borders.

The respondent C.S. Borders demurred to the bill as last amended as for misjoinder and multifariousness. The court sustained the demurrer, and complainant appeals.

Willett & Willett, of Anniston, for appellant.

Knox, Acker, Dixon & Sterne, of Anniston, for appellees.

MAYFIELD J.

The sole question presented for decision by this appeal is whether or not the bill as last amended is multifarious. We are of the opinion that the trial court ruled correctly on the demurrer to the bill as last amended.

A bill for partition among tenants in common is not rendered multifarious by seeking an accounting among the tenants in common as for rent or other uses of the common property and for amounts expended thereon by same. The original bill was therefore not multifarious, though probably an accounting should be had only for the time after complainant acquired her interest; but she could well join herself as administratrix, so as to have a full accounting as to the lands sought to be sold for distribution, in order to avoid two suits. But when, in addition to this, and by the same bill, she sought an accounting between herself in her representative capacity and C.S. Borders as to a farming partnership between him and her testatrix, and also an accounting as to matters extending over three or four years, during which C.S. Borders was acting as agent of the testatrix, and as to renting two other tracts of land, the bill was rendered multifarious. These last two matters are not shown to be so connected with or related to the original bill to sell lands for partition and distribution, as to be properly made a part thereof in order that complete equity may be done.

A tenant in common who files his bill for partition in specie, or for a sale of the common property for distribution, may also have an accounting between the tenants in common as to such property, whether it be as for rents, improvements, or otherwise, if it relates to or is connected with the use of the common property. This is necessary in order to avoid two or more suits. But such tenant in common cannot, in such a suit for partition, have an accounting between himself and another of the cotenants, as to matters not so related to or connected with the common property sought to be divided as to be logically embraced in the main accounting.

Even if the parties to the suit for partition are the only parties interested in accountings as to other matters and transactions, those independent matters cannot be joined in one suit.

Moreover, here one of the respondents had no interest whatever in some of these accountings sought between the other two parties, and hence should not be lugged into the suit.

The rules of law as to multifariousness, so far as applicable to this case, have been frequently stated by this court, and may be summarized as follows:

"Multifariousness" is the joinder of distinct and independent matters, thereby confounding them, or the uniting in one bill of several distinct and unconnected matters against one defendant, or the demands of several distinct and independent matters of a distinct and independent nature against several defendants in the same bill.

The decisions as to what constitutes multifariousness are so exceedingly various as to make it difficult, if not impracticable, to educe any general rules by which to test the objection, the courts seeming to regard what is convenient and just in the particular case, always discouraging the objection where, instead of advancing, it would defeat, the ends of justice. 3 Mayf.Dig. 288.

Multifariousness is incapable of exact definition; it is frequently a...