M'CLASKEY 11.'
559
it must stand or faU with the other grounds to which it is attached. It may be doubted whether it is in consonance with proper practice' thus to join or unite in one ,bill several different and distinct grounds of review, which invoke different relief under each branch, and separate defenses to the several parts oithe bill. The object and effect of that branch of the bill resting on fraud is to vacate the decree in toto, not to retry the case; and the fraud should be of such character as to warrant that relief. The object and effect of a bill of review for error of law apparent upon the face of the record is to reverse the decree so far as erroneous, and ,to retry ,the cause upon the original reoord, while the purpose and effect of a bill of review based upon newly-discovered evidence is to suspend the decree. and retry: the cause u'pon the original and new proof. Moore: :v. Moore, 2 Yes. Sr. 596j OatteraU v. Purchaae. 1 Atk. 290j Coole v. Bamfield, 3 Swanst. 0h. 607. To unite these three grounds of review and relief in onell.nd the sanie bill must lead to great oonfusion, and render the bill multifarious. Perry v. Phelipa,17 Ves.183j Campbell v. Mae.. kay,l:Mylne & 0. 618jAttor'1liey GMeral v.College, 7 Sim. 254. Upon whoJe case, as presented by the ,record andh}' the proposed bill of review, tQe:courUsclearly of the opinion that thedet'endant's application"'fol! leave to ,file said bill of review shQuld not be granted, and it is denied, with costs.
McCL:A.SKEY et al.lI.BARR' 11 <I '
t
(mrouit Cowrt,8. .";',J;;
D. OM.o. W. D. December 4,,1889.) , , ' , > ',' , , ,
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'" A prayer thQt each of the may be relluired to answer unto the prem!o 'BEJlIiln. a bill for rei,ief," 00i. ng: a I!:ood general,interrogatoty, complainants areentli" w an answer of. their bill. ' , .' .· . .", . ' , "
,: ,,: Thedoctrill.e that 'exceptions to the answer for insuftlciency are confined to ClUles . ;whelje to ,defen.dants ,to prove t?eir C&II8.aJ;ld are I\oi properlytaken w;hereall the matters }VhichcomplauliUlts ask dISdOvery are of recoM, does DOVapplyio tiillsfor relief.' ';' ,8. Srnu:...,..PARTITION-IDIBcOVERT. , ;J;n a bilUor partitipn. that CQmplainants an,d defendants are tenants in oommori of the land Bought to M llartitioned, being in support of. complainants' uefendantsare bGund todiBcov.er their title in answer·tlilereto; (l ': : : .1;
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InE4uity., ,Bill for ipartition. ,I Q.:W; C'Qtqan, H{fI.fJfJ,rd Ferris, andH.P.:Fay, for complainants., kLincoln and Batema;n & Hatrpef, for defendant. ,ILi:
SAGa, ,J. ,This cause :isbefore the court upon exceptions for insum-
, deney t9the answer ofthe defendant John Keeshan to the second amended . bill:" and to the amendment thereto. " There are 24 exceptions. ,Itis not it'C9inewithin the ordinary lWlits of an opinioll, The bill is for . There are ,2,00 ,or
560
FEDERAL REPORTER,
vol. 40.
300 aefendants, each holding one or more lots of the tract described in the bill, but all averred to be tenants in common with the complainants, wh() sue as heirs of Mary Jane Barr. It is averred in ,the amendment to thesecbnd amended bill that William Barr, Sr., died in 1816, seised of the real estate in the second amended bill fully described, also that he died testate, and that his will was admitted to probate; and the terms and conditions of said will are set forth in said amendment. It is further averred that upon the death of said Mary Jane Barr said real efltate descended, by virtue of the facts set forth in said amendment, and of the laws of descent theu in force in the state of Ohio, to the brothers and sisters of William BarrtSr., and to the lineal descendants of those of them who are deceased. Also, that certain conveyances were made by Mallia Bigelow, life-tenant of said real estate, and that certain other conveyances were subsequently made by her g'rantees;oflands of which said William Barr, Sr., died seised, and in which the complainants claim an interest as co-parcenerSj and that in said conveyances under which the defendants claim, and in certain legal proceedings'concerning said lands, the same including the premises now' occupied and claimed by the defendant Keesban, there. are recitals, bindinK upon him and the other defendants, indicating the recognition of the co-tenancy claimed by"complainants, alid inconsistent with the claim that defendants have held adversely more than 21 years, and thereby acquired exclusive rights. The exceptions are to the of the defendant Keeshan to answer any of said averments. The first proposition urged for the defendant is that exceptions for insufficiency are confined. to cases where, the complainants are compelled to rely upon the defendants to prove their case, and that all the matters concerning which the complainants ask discovery are matters of record; also, (citing Ingilby v. Shafto, 33 Benv. 31,) that discovery will never be compell:ed merely for the p1.lrpose of saving the complainants the labor of .collectinga.nd presenting their proof. The cases cited in BU pport of this proposition are cases where the holding was with reference to 'bills for discovery merely, or where the question wllsconsidered as it arises on such bills. For illustrati()ll, in Ex parte Boyd, 105 U. S. 656, the court sa:id that it had nothing to do with any question but that of discovery. Also, in Ingilby v. Shafto, the-bill. was fordisoovery merely, in , aid of theqefense of actipnsof ejectment, and the court held that a complainant in such a case was not justified incoming into equity for the purpose, merely, of getting the defendant to admit documents, to save. him the trouble of proving them. The court further said that there WitS a distinction between & bill for discovery, merely, and a bill asking for r.elief. Discovery is Bought in both Cases. In the latter, it is sought with reference to the case stated and the relief prayed by the bill, and the complainant may j within certainliniits, call upon the defendant to state how,and oDwhat ground, he can opposethereliefaSkedj because in such a suit the complainant may dispvove the whole of it. But the court further-said that, when the discoveryia asked in aid of an action at law,allthatithe oomplainant can aSk is'for the discovery of facts and
M'CLASKEY ". BARR.
.561
documents in the defendant's possession, knowledge of which will assist com plainant in proving his own title in the action. Further on the court say that in bills for relief the complainant may compel the defendant to answer what defense he makes to the case, and on what grounds; and that is sofor the reason that the court requires the case of each party to the suit t6 be pleaded, in order that neither may be taken by surprise. The case before the court is for relief, and not for discovery merely; and Ingilby v.8hajto is, properly considered, an authority against the defendant, and not in his favor. The complainant has the right to anticipate defenses, 'and to introduce into his bill, originally, or by amendment; by properavermetits, a statement of the facts upon which he expects to re!y,to thosede,fenses. He is entitled to an answer to every · material allegation in his bill of complaint, if for no other reason, in order that he may know precisely what is admitted., and what he will be to establish by proof. The Cnse of U. S. v. McLaughlin, 24 Fed. Rep. $23, is cited as an authority that an answer cannot be required interrogatorie!:!, general or special; and couhsel insist that the amendments to the complainants'second amendep bill contain no interrogatories of any description whatever. But thes'e amendments do not nn independent pleading. They are only amendments to, and therefore a part of, the second amended bill. It is to be, remembered that under thl) fortieth equity rule special interrogatories are not necessary, where the bill is for discovery merely. But, say the defendaQt's counsel, there is not even a general interrogatory in the second amended bill. In this counsel are in error. The second amended bill contains a prayer that the defendants may each be required "to answer unto the premises;" and Ames v. King, 9 Allen, 258, is a satisfactory authority that that is a good general interrogatory. Moreover, thl;l interrogat,ing part ofabill,is not regarded by Justice Story as absolutely necessary, because, 8S he says, in his works on Equity Pleading, § 38, " if the defendant fully answers to the matters of the bill, with their attendant circumstnnces, or fully denies them, in the proper manner, on oath, the object of the special interrogatories is completely accomplished." 8"'0, also, in on Equity Pleading, § 55, it is stated that all the substance of a bill in equity is contained in the stating part, the charging part, the interrogating part, and the prayer for relief; and that of these the second and third may be dispensed with. at the option of the draughtsman, "for all that ever was essential to a bill was a proper statement of the facts which the plaintiff intended to prove, a specification of the relief which he claimed, a,nd an indication of the legal grounds of such relief." The next contention by counsel for the defendant is that complainants are not entitled to discovery of defendant's title, and that they must rely 'upon the strength of their own title, and not. upon the weakness of his. There is no doubt of the correctness of the general ,proposition here stated, as applied to bills for discovery. The rule, arid the reason for it, are well stated in Bispham's Principles of Equity, § 561: "The.defendant is bound to discover those matters only which relate to the and is not compellable to discover his own title, or the means v.40F.no.l0-36 .
562
FEDERAL
REPORTER, vol. 40. ·
by whiCh' he expects to/prove it. The' reason of this rule is that experience the possible mischiefs of surprise at 1\ trial are more than 'counterbalanced by the danger of perjury which mu.stine¥itably, be incurred when either party is permitted before a triaL to know evidence ,agajt;lst which be has to contend; and,accQrdingly, each party in a cause has thrown hi,m the onus of, supporting his own case, and that of knowing b, what evidence 'the case of his , adversary ,is to be established,1 or his own opposed." aut40J;continues: , ' . howeverjif! not to be extended too far, right of the discovery in of bisowncase is not to,be ai)ridged, 8S to dis/:l9very, that the J;llstter of such,partic'any ular discovery may be of the defendant's case, in common WIth that. 'of ..' ., ' pi,§ 859, if the,:-documents arid papers of which discoveriis ,sought "relate solely to the, defendant's title, they will not
hill; as amended, caTIs for qIscover", "It trM thltt tHere' areavermerits ., the he claims', not now, nor 'have they, any title' set 'forth the 'complain:ants; in thatbeha}.f Called for,+#ot,h,ing xnorethan , ,. ,., , , ," ',',' totlie answer avermenijl ,iOL6t Pugh" on, or!\bout 13,th (jf September, ,1839, . ,his in certain J?remises, inC'lrided. in the lands "how 'sbUghi' partitIoned, to, Ephriaril ¥organ: ., Counsel for defendto,k,n?:\" what the cqmplainIS that pnor averments set. forth that, after the d6/lth of l\l8.ry.Jlibe Earl', Mal'iaBlgelow, said pr,etnises, LOt,phgh'and and the teferel1¢e the U?.ade Ephriam '1itbrgan illibseqiiefitly, byquitclaitriJrpm' Lot Pllght'acquirM the entire interestconveyed by Ma:ria BigeloW'; these being n*ks 'iiI the chain6f defendant'sJtitle', and, what is of < niicea indicatitlg lilih:tthe'complainadtilllrta 'the 'are 'teni:ID\s
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the.plain,t,ifl'S, ti.tl.e" they the rIght t6 partItion de}'lends is Whether the complil.lI).antsand thedefendantareco-tenants; and ,theaveibients \'I'hich'the defendant' fail,ad to answeiire' directly in They the has; hoW itbas been iSlo).' an un4iv;ided only, and not the entirety. 'li.verO;}ents are in sUPPort,of the corriplairi/lnts' case fdr partitiob::" oheofthem calls 1:>1 All relate to nlatters of pub'lie , complainaIits do ilOtcall for theprbductidn ofasingle deed or title of ariy 'They haie no'need do so. ate la" statecolrtpetent and suffiCient eVIdence,-better, III fact, than the ongInals. There to,'
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pElS in Q9mmon, or,:in, oth 43r wqrds, that the oomplalnllpts ,are entitled to parv. dgneUy, 1 Woods, tition of the land occupied by 238, is: not in conflict here express\ld··. There·,the complainant claimed certain lands as devisee ofDaniel Clirk.. The bill called upon the defendants to show their title to the particular portions of said by them. The defendants set up title in themselves by land prescription, under the laws of Louisiana, and failed to make the disclosures called for.. The complainant exceptedforinsufficiency.. BRAI>LEY, Circuit Justice, in disposing of the exceptions, said, (page 244:)' bill charged that the defendants cfilimed title to the lands in their Relf & Chew, acting as executofs of Daniel Clark, it might, pel'haps, have heen incumuent on the defendants to have cleared their POSgession ,of theJmputation thus cast upon it. But nO 8uch charge is made in the bill. On the contrary,. the bill expressly states that the complainant is ignorant of· the title, and claim of title, by which the defendants severally hold. and ,calls upon the defendantg to show their title. The defendants do ·show title sufficiElnt to lay the foundation ofa prescription; and on thltt defense they take \heir stand. It seems to me that they are not .called upon. to auswer further. The bar setup is'prima facie a gOOd defense: and theexCllptions :must be 'o\lerruled." ' The between that case and this is that here not only do the complainants charge that the defendant claims title to the land in his possessionnnder Mary Jane under whom the complainants claim byiriheritance, butthecomplainan.ts also charge that the defendant, and Mary Jllne Blirr.andtheir grantees, whom he claims, have riot now, nor have tbey ever had,any title other than that set forth by the complainants. 'fhis case is within the very exception stated by Justice BRADLEY, which he says might have made it incumbent on the defimdants to clear their possession of the imputation thus cast upon it; and it is therefore an authority in favor of the complainants' exceptions. It is not necessary to go into partie,ulars., .:Enough has been said to make it clear that the exceptions must be sustained, and the defendant required to answer fully. The motion to suspend' proceedings until complainants establish their title at law will remai» of until after the defendant answers in accordance ,with the entiy)to be made under this opinion. Itmay be eltidnow, however, that this is not a cause tt:fbe dismissed, if it 'shall appear that the complainants' title is disputed. .The caSe was brought in state court under the Code, which abolished all distinctions .betweehactioDs at law and suits inequity, so far as relates to name and form, and substituted the civil action as the only form of action at law or in excepting only proceedings specially provided fo1' by statute. The case is here by removal j and if the court shall be satisfied that it is necessary for the complainants to establish their title at law it wiUattlia:'proper timemake'.anorder staying proceedings /lnd 'for the trial at law of the question of title. The court will first, however,see to it that the pleadings are complete, and that the parties respectively have opportunity to take and file the depositiQns'ofanywitneSSl'llilwhose testimony, by reason of their age or infirmities, n;l!ly: be lost by dela.y. Ii
FEDERAL' REPOR'l'ER,
has beert 'held that the bare denial of complainant's title is not any obstacle to' the court's proceeding in·equity. "The defendant must answer the bill; and, if he sets up a title adverse to the complainant, or disputes the complainant's title, he must discover his own title, or shoW' wherein the complainant's title is defective. If, when the titles are spread before the court upon the pleadings, the court can see that there is no valid legal objection to complainant's title. is no reason why the court shollid not proceed to order the partition... , Lucas v. King, 10 N. J. Eq. 280.
So, also, in Overton's Heirs v. Woolfolk, 6 Dana, 374, the court said. picion attending it; would authorize the dismissal of thecomplafnants' bill, it would place tbis equitable jurisdiction, which has been' established by a long train of decisions, and is deemed of much public convenience, at the mercy of every profligate or unconscientious and render, the court the mere ministerial agent to carry into effect tbewishes of the parties, in cases where there we,re no' di!"tters of controversy bEltween Thereis to the fi).ing the demurJ;er tendered bytlle defendant Keeshan and other defendants to the portions of the second amended bill, ,and the specified in the exceptions to Keeshan's answer. The think it a proper precaution to file the demurrer. and have 'it passed upon in order to rights, and the court is disposed to .. '" But, as tllequestion!j presented are in uo wise different from those considered in this opinion, an 'entry will be made BustaiX¥ng the exceptions, and overr,uling the demurrer. "If a bare denial of the title, where there was no reasonable doubt or sus-
LmBY .(Circuit Court, ."
et al. t1. "
CROSSLl!:Y
et ale iO,18s9.)
D. MassaMlusett8.
, December
a· SAME-FORM.
1.' BILL OJ' ExCBPTIONS-DELA,T IN PRBSENTING roR' SIGNATURE. A bill of must be presented to the judge not later than the term at which the judgllleptis rendered and the delay will not be excused on the ground that certain proceedings had taken place between the parties by reason of which they had hoped it would not be necessary to take the case up on review. A paper. presented to the judge. nothing but the propositions of law argued at the hearing, on the margin Ofwhicll the judge, for the convenienc3 of the counsel, ntlted his rulings on the several propositions,-the paper not having been presented as a bill of exceptions, and the judge not having been,asked to sign it,cannot, after jlldgmenthas been rendered, be amended and signed as a bill of exceptions.
At Law. On motion to settle bill of exceptions. For opinion on the merits, see 31 Fed. 'Rep. 647. Oliver Stevens and James McKeen, for plaintiffs. ' Thomas HiUiBand John Hillis, for defendant Crossley. Bryant & Sweetser,' for trustees.
a.