Generally a bill is multifarious, when it unites distinct and independent matters, in which a part of the defendants are interested in and connected with a part of such matters, and have no interest in or connection with the other matters in the bill as to which relief is prayed, in which another defendant or defendants are interested and connected. And a bill may be multifarious for other causes.
2. For such multifariousness the bill is demurrable.
3. Courts of equity have jurisdiction of matters of account. First, where there are mutual demands, and a fortiori when complicated; Second, when the accounts are on one side, and a discovery is sought that is material to the relief; Third, equity having taken jurisdiction for discovery will, to avoid multiplicity of suits, administer suitable relief. Courts of equity decline jurisdiction in matters of accounts. First, where the demands are all on one side, and no discovery is claimed or is necessary; Second, where on one side there are demnads, and on the other mere payments or sets-off, and no discovery is sought or required, Lafeur v. Billmyer et al., 5 West Va. 33. While these propositions are in the main generally correct, still they do not embrace all the cases as to matters of account, in which equity should or should not take jurisdiction. It seems that no general rule embracing all cases as to matters of account, in which equity will or will not take jurisdiction, can with propriety be safely laid down.
4. Sometimes the word "or" is made in contracts to mean "and," when it is proper in order to carry out the obvious meaning of the parties to the contract.
5. A case in which a court of equity should not take jurisdiction of a bill for a settlement of account as against certain defendants. See statement of the case and opinion of the court.
Appeal from and supersedeas to a decree of the circuit court of the county of Wood, rendered on the 13th day of March, 1877, in a cause in said court then pending, wherein E. W. Petty was plaintiff, and E. D. Fogle and others were defendants, allowed upon the petition of said Petty.
Hon. J. M. Jackson, judge of the fifth judicial circuit, rendered the decree appealed from.
Haymond, Judge, furnishes the following statement of the case:
In 1874 the plaintiff filed his bill against the defendants in the circuit court of the county of Wood, which is as follows viz:
To the Hon. J. M. Jackson, Judge of the Circuit Court of Wood county:
" The bill of complaint of E. W. Petty, plaintiff, against Evans D. Fogle, William Hamilton, J. B. Blair, C. H. Shattuck, William T. Williams and John Burgess, defendants, filed in the said court:
" The plaintiff complains and says that on the 13th day of March, 1861, the said Evans D. Fogle, James R. Utt, since deceased, and the said plaintiff, entered into an agreement in writing, and under seal of the contracting parties, with the said William Hamilton and the other above named defendants, excepting said Fogle, which recited that, whereas, on the 23d day of February, 1860, the said plaintiff executed a paper, purporting to be a lease to J. T. Johnston and others therein named for the exclusive oil-privilege of the farm on which the plaintiff then resided, situated on Burning Springs Run, in the county of Wirt, and supposed to contain about 207 acres; and further reciting that the said Johnston and others had assigned all their right and title under the said lease to the said William Hamilton and others therein also named; and further reciting that on the 8th " day of March, 1861, the said plaintiff had executed a paper-writing, purporting to be a lease to the said Fogle and Utt, for the said oil-privilege of said farm, or part thereof; and further reciting that a misunderstanding had arisen or existed between the parties of the first and second parts to the first above mentioned agreements, a to their respective rights under said instrument of writing. To avoid litigation, and to amicably adjust all coming difficulty and dispute between said parties, the first above named agreement bearing date the 13th day of March, 1861, was entered into, in which, amongst other things and provisions, it was covenanted that John R. Boggess and James Evans, surveyors, should go upon the land aforesaid and lay off the same into lots, ten poles square, and number the same, and assign to one of the said parties, (the parties of the first part to said last mentioned agreement, towit, the agreement of March 13, 1861,) the lots being the odd numbers, and to the other of said parties, (the parties of the second part to said last named agreement.) the lots being the even numbers, and make out a fair plat which should be recorded in the clerk's office of the county court of said Wirt county. And in and by the said agreement other stipulations and conditions followed respecting the manner and extent of the use of said lots so laid off, and the reservations and rents thereof. And it was further agreed that the parties to the said last mentioned agreements of the first and second parts should respectively pay the taxes aforesaid the county and State purposes on the lots assigned to them. All which will more fully and at large appear by reference to a certified copy of said last mentioned agreements filed herewith, and prayed to be taken and read as a part of this bill, marked "A."
" And the plaintiff further says that the said surveyors did lay oft by survey the said two hundred and seven acres into lots ten rods square and numbered the same from one to three hundred and thirty five, inclusive, and made a plat of the same, and the same was recorded as stipulated, a copy of which is filed herewith, marked "B," as a part of this bill.
" And the plaintiff further says that the said odd lots were assigned and allotted to the said Evans D. Fogle, James R. Utt and the said plaintiff, and the even lots were assigned and allotted to the said Hamilton, Blair, Shattuck, Williams and Burgess, according to the terms of the said last mentioned agreement.
" And the said plaintiff further says that in and by the terms and covenants of said agreement, the said parties thereto were to pay the State and county taxes on their respective allotments that is to say, the parties to the first part to said agreement were to pay on their lots the taxes aforesaid that might be assessed or levied to the extent of one half of said land, and the parties of the second part of said agreement were to pay the like on their Jots to the same extent; and the title in fee remaining in the said plaintiff, it was of course understood that the State and county would continue to assess and charge the taxes upon the whole of said farm to the said plaintiff as a whole, and that there was no way by which the said taxes, or any part thereof, could be distributed upon the various specific allotments; but that each general division composed of said respective parties should and would pay their portion of the said taxes as agreed.
" And the plaintiff further says that the said above named defendants have not at any time paid the said taxes, or any part thereof, except about $10.00 or $15.00 paid upon the said lots so assigned to them, or their proportion of the same, due upon the whole tract of land; that the said plaintiff has always paid each year the whole of the said taxes down to and including the taxes of 1871; and also your orator's property was sold to satisfy a portion of the taxes for the year 1872, and been compelled so to do or suffer his said land to be delinquent and sold for the taxes thereon; that the defendants, although often promising, have failed and now refuse to pay their portion of the saidjtaxes due the said State and county upon said land and the portion thereof they agreed to pay as aforesaid; that the amount of taxes and the interest thereon for each year for State, county and township purposes, since the year 1861, is, to wit, the sum of $, as will appear by reference to an. account filed herewith, marked " C," as a part of this bill.
"And the plaintiff further says that the said James R. Utt has long since departed this life, and had at the time of his decease no interest in the subject of this suit; that the said Evans D. Fogle is indebted to the plaintiff on account of the taxes aforesaid due on the lots assigned to the plaintiff, and said Fogle and Utt in the sum of $; and that the said defendants, William Hamilton, William T. Williams and John Burgess are non-residents of this State; that J. B. Blair and C. H. Shattuck are residents of the said county of Wood. And the plaintiff further says that owing to the peculiar character of the said last named agreement, and the nature of the demand of the said plaintiff1, and the inconvenience if not impossibility of having a complete and satisfactory adjustment of the respective rights and interests and claims against the said defendant settled in an action at law, such a remedy would be inadequate to the purpose, and unavailing to this plaintiff; that the said plaintiff is entitled to an account of the taxes due from the said defendants or tenants in common of said land under said agreement, and the right to compel the said defendants to the payment of the same as he is advised. The said plaintiff files herewith the tax-bills and duplicates paid by him on the said land, and prays that same may be taken and read as a part of this bill. Therefore the plaintiff prays that the said above named defendants may be made parties to this bill; that they answer the same upon oath; that said plaintiff may have a decree against the said defendants for the said amounts, respectively, due on account of (the said taxes, and that the plaintiff may have such other, further and general relief in the premises as to equity may seem meet. And as in duty bound he will ever pray, &c."
Exhibit "A" filed with the...
