Riley v. Lyons

• Decision Date: 30 September 1872
• Citation: 58 Tenn. 246
• Parties: Riley v. Lyons.
• Court: Tennessee Supreme Court

58 Tenn. 246

Riley

v.Lyons.

Supreme Court of Tennessee.

September Term, 1872.

FROM HAWKINS.

Appeal from Chancery Court at Rogersville. H. C. SMITH, Ch.

Barton, for complainant, said:

The question in this case arises upon the sufficiency of the plea of defendant.

The gravamen of the bill is, that Wm. F. Lyons, being the owner of two shares of the company owning the Rogersville Female Institute, sold to and assigned to complainant said two shares; that after the close of the war, in 1866, J. T. Shields and F. M. Fulkerson, as trustees, filed a bill to wind up the concern and sell the property for partition; that in the proceedings of the cause, the two shares of Lyons so sold and conveyed to complainant were treated as belonging to Lyons; that no transfer of the stock had or could have been made on the books of the company, because complainant was not an Old School Presbyterian; that in adjusting the accounts the value of said stock, to the amount of $585, was off-set against a debt that Lyons owed the firm.

Thus, by the decree in said cause, the value of the stock held by Lyons in trust for complainant was appropriated to the payment of Lyons' debts, and he thereby becomes the debtor of complainant for that sum with interest.

To this bill the defendant pleads: The filing of the bill by Shields and Fulkerson for the purpose of selling the property and settling the equities of the stockholders between themselves; that Riley was made a defendant to the bill, and was served with a subpoena to answer; that at the March Term, 1869, the court pronounced a decree settling the rights of all the parties; and, by way of recital--not averment,--that said decree being a solemn adjudication, by a court of competent jurisdiction, between the same parties, to the same matters and to the same effect, as the said now complainant doth, by his present bill, demand and set forth, etc.

On argument, the Chancellor sustained the defendants' plea.

For complainant, I submit that this was error.

1. The plea is defective, because it is not certain and positive in its recitals and averments: I Dan. Prac., 706-7.

2. The plea does not meet the gravamen of the bill. The charge in the bill is, that the defendant being, on the books of the company, the holder of the two shares that complainant had bought and paid him for, and being so the holder, the debt due from the defendant to the company was paid by offsetting the value of the two shares so held by him, and he thus become the debtor of the complainant.

The plea does not answer the charge. It only avers the pendency of the suit as charged in the bill, and that complainant and defendant were parties defendants, and recites that the equities of the parties were settled. It does not meet the allegation, that in the suit the two shares were treated as defendant's and their value appropriated to the payment of his debt. It simply recites that the equities of the parties were settled. The equities of the parties were, that the debt due from Lyons to the firm should be paid before he or complainant, who held under him, could receive any part of the proceeds. This left him the debtor of complainant, as charged in the bill.

C. W. Hall, for defendant:

It is insisted that this plea must be sustained. The bill states the pendency of the other suit by Shields and Fulkerson, trustees, agains the parties interested in the female institute or its business. In that suit complainant could and should have asserted his claim to said shares. Courts of equity prevent rather than encourage multiplicity of suits. It is not right that defendant should be harassed w??th a distinct suit for that which complainant, if he has right, might, and may still, assert in the original suit by such proceeding as the law allows. See Connel v. Fergason & Fawlkes, 5 Col., 405.

The present bill is predicated on the fact that there has been error in the action of the court in the original cause, in that the court, by decree, has given defendant the benefit of these two shares of stock, which, in equity, belong to complainant. If this be true, then complainant's remedy is, in said court, by appeal, writ of error, bill of review, or otherwise, to correct this error if it be...