Whittemore v. Coster , 3 N.J. Eq. 438 ( 1844 )

The Chancellor.

There is a decree pro confesso against all the defendants but John G-. Coster, who demurs to the bill for multifariousness ; and first, because of unnecessary parties. .

The defendants, if not all necessary, are not improper parties.

Most of them have an interest in the object of the suit, and are, therefore, proper and necessary parties : Calvert on Parties, ch. 1, sec. 1, p. 3; Story’s Eq. Pl. see. 77, 97, and cases there referred to.

Ooster is made defendant because he was the complainant in a former bill, and is charged with wrongfully pressing a sale of the premises claimed by the present complainant, Whittemore.

Parsons, as the assignee of the mortgage given by Wheeler to Lawrence, on the same premises, and entitled to the surplus.

Mann and Berry, as the mortgagors to Coster, and obligors, responsible for the residue on the bond, after deducting the amount of the sales, and directly interested in the result of those sales.

The Monroe Manufacturing Company as mortgagors to Ooster, and grantees of the equity of redemption, are not necessary, but are proper and usual parties: Vreeland v. Loubat, 1 Green’s Chan. 104.

The complainant may make them parties, if he choose, and the bill is not on that account demurable : Chester v. King and others, 1 Green Chan. 405.

The receivers, as the representatives of the company, are to oe regarded in the same light.

The second ground of objection is, multifariousness in the cbj ect of the bill, which seeks a reversal or correction of a ’ormer decree.

This presents a more serious question, namely, whether a court of equity will sustain an original bill filed to correct a former decree.

Judge Story, in his Equity Pleadings, 342, sec. 426, says

“There is no doubt of the jurisdiction of courts of equity, to grant relief against a former decree, where the same has been obtained by fraud and imposition ; for these will infect judgments at law, and decrees of all courts ; but they annul the whole in the consideration of courts of equity. This musí be done by an original bill ; and there is ñb instance of its be ing done by petition, though it seems once to have been thoughl that a decree as well as an interlocutory order, could be sel aside for fraud, by petition only. Where a decree has been so obtained, the court will restore the parties to their former situ atibn, whatever their rights may be.”

In Sheldon v. Fortescue Aland, 3 P. W. 111, lord chancellor King says, “ I admit even a decree, much more an interlocutory order, if gained by collusion, may be set aside ox petition; aforUori, may the same be set aside by bill.” But i; is supposed that this was said in relation to a case in which the decree had not been enrolled, and where the fact of fraud could not- be controverted.

And in Mussel v. Morgan, 3 Bro. Chan. R. 74, lord Thur-low expressly overruled the doctrine of relief by petition, and said he could see no reason why it might not be obtained by an original bill, in the nature of a bill of review.

In Cocker v. Bevis, 1 Chan. Cases, 61, a bill for such purpose was sustained, not so much on the ground of fraud, as on its own special circumstances, namely, that the original decree of foreclosure was to be entered unless the money was paid at a certain time, and the money was not paid, from circumstances of inevitable necessity, without wilful default.

There is no express allegation of fraud in this bill, but the facts set forth are such that it is difficult to divest them of the charge of fraud.

If the defendant, Coster, as the bill charges and the demurrei for the purpose of this argument admits, knew that the descrip tion of his mortgage embraced more land than the mortgagor had title to, yet took his decree for the whole, and insists upon selling the whole, to the prejudice of the complainant, it look? very much like fraud.

If the allegation is untrue, he may call its truth ifl question by his answer, and relieve himself of the implication of fraud.

"Whether there is fraud or not in the case, the special circumstances of it forbid the allowance of the demurrer.

The defendant may avail himself of the objection, if there is anything in it, by plea or answer, and I deem it best to retain the bill for further inquiry.

Let the demurrer be overruled, with costs. •

Order accordingly.