majority">

The opinion of the court was delivered by

Willard, C. J.

This is a judgment creditor’s bill against the administrator de bonis non of the assets of the intestate debtor, seeking satisfaction cf thejudgment out of the intestate estate. The only question made by the appeal is one of alleged multifariousness in the complaint. The complaint makes J. C. F. Sims, *323an entire stranger to the estate, as must be assumed, a party, and demands relief against him. The facts alleged as connecting Sims with the case are that he is in possession of a parcel of land alleged to have belonged to the intestate at his decease, claiming title thereto. Plaintiff alleges further that at the decease of the intestate debtor the land in question was bound by his judgment. The statement of the complaint tendering an issue to Sims is as follows: “ That the plaintiff is informed and believes that one James C. F. Sims claims to be. the owner in fee of the tract of land herein described, but the plaintiff denies the validity of the said title, if any he have, and alleges that the same is illegal and void.”

The code (Section 167, Sub-division 5,) allows a demurrer on the ground “ that several causes of action have been improperly-united.” From the nature of this provision it is evident that any defendant may take the objection. If two independent causes of action, incapable of being united for the purposes of prosecution, are set forth in a complaint, all the defendants concerned are interested in having them separately considered, for the objection rests on the general ground that complete justice cannot be done where matters, foreign to each other, are considered together. This principle applies as directly to one party as to the other.

The objection of multifariousness in the present case comes from the defendants, who are proper parties to the creditor’s bill, and not for Sims, who, as is alleged, was improperly joined with the others. The objection of a misjoinder of causes of action or multifariousness is general, going to the whole frame of the complaint, for the reasons already stated, and may be taken by any defendant; hence that question is open in the present case.

*324The question thus arises whether there has been a misjoinder of independent causes of action. The code (§ 190,) distributes the various causes of action into seven classes, allowing independent causes of action between the same parties, appertaining to any single class named, to be united together in one action, but does not permit a -cause of action of one of this class to be united with one of another class in the same, action, although the parties are the same in each. .

The present complaint, considered as a creditor’s bill, must belong either to the first or second class, which was described as consisting of cases arising out of: “1. The same transaction or transactions connected with the same subject of action. 2. Contract, express or implied;” while the cause of action against Sims, involving claim for the recovery of land, belongs to the fifth class.

The first part of class No. 1 embraces causes btherwise independent, but when arising between the same parties and out of a single transaction or course of dealing between such parties, it is conceivable that the same transaction between certain parties might give rise to several causes of action of a separate and distinct nature, such as a cause of action for the recovery of money on contract and one for the recovery of land or personal property or for damages to the person or to real or personal property, and also to causes of both legal and equitable cognizance. Independently of the connection established by Section 1, by means of the identity of the transaction out of which they arise, they would fall respectively under two or more of the seven different classes named, and could not be joined in one action, although between the same parties. The code connects them in class No. 1 for the purposes of prosecution when they have their origin in the same transaction.

The next case mentioned in class No, 1 is that of “ transactions connected with the same subject of action.” It must be remembered that this is not intended as the means of determining what matters, direct and collateral, may be brought together as parts of a single cause of action. The section of the code under examination uses the terms causes of action as including such as are recognized either at common law or in equity. It *325leaves the question as to what matters may be brought within the compass of a single cause of action, whether of legal or equitable cognizance, to be determined by the’ antecedent rules of law and equity upon the subject. Its object is to declare what cases, which, prior .to this code, had to be • considered separately, and, by an independent form of procedure, can be grouped together in one action under the code. "Viewed in this light, the language under immediate examination may be regarged as in substance declaring that when a certain right, or certain connected rights, between the same parties are brought into legal controversy, all transactions between the parties bearing on the state of these rights may be included within the scope of the action, although such transactions considered as independent transactions, would, in their nature, call for different forms of legal procedure for the purpose of investigation, .according to the practice that prevailed prior to the adoption of the code.

It would follow, from the foregoing, that unless it can be made to appear that Sims was a proper party to the creditor’s bill, as such, according to the rules' of equity existing prior to the code, and so was fairly within the scope of that single cause ■of action, the demand against him would have to be regarded as a separate and independent cause of action, neither arising between the same parties, nor out of a single transaction, nor ■out of transactions affecting the same subject of action. This will readily be made apparent. The proper parties to an action against Sims to recover the land are the heirs or distributees of the intestate, in the absence of title made under him. The plaintiff not having made title under his judgment, has no claim to recover the land. The administrator, as such, does not appear to have any present demand upon the land, as it has not been made assets for distribution as will hereafter appear. There is, then, a complete failure of identity between the parties con•cerned in the respective causes of action. The claim against Sims has no relation to the transactions that are the proper subject of examination under the creditor’s bill. So the causes •of action do not concern the same subject of action. The subject ■of the creditor’s bill is the right of the creditor to compel the *326proper distribution of assets of the intestate estate, and for that purpose to compel the administrator and those connected with him in liability, to account, while the subject of the demand against Sims is the relative strength of the. title by which the intestate and Sims respectively claimed the land in controversy. It is clear, then, that the code gives no means of connecting together the causes of action against the administrator and that against Sims, if they are to be regarded as independent causes of action.

It only remains to inquire whether the demand against Sims-is a proper incident of the creditor’s bill. If it is, then it is a part of a single cause of action in the sense in which the code-refers to causes of action in the section under consideration.

It is true that when assets of an intestate may be traced into the hands of a stranger, coming to him through a devastavit committed by the administrator, by which such party is affected, he may be brought within the scope of the bill and decree, as was held in Ragsdale. v.Holmes, 1S. C. 91, and reiterated in Melton v. Withers, 2 S. C. 561. But in the present case, the land of the intestate in the hands of Sims cannot be regarded as-assets of the character for which the administrator is liable to-account.

The lands of an intestate are not primarily assets for the-purposes of administration, although made general assets for the payment of debts by the statute of 8 Geo. 2, ch. VII. "The lands of a decedent may be sold, and the proceeds of the sale paid to the administrator for the purposes of administration. Gen. Stat. 458, § 10. When sold by the Probate judge he is required to take a special bond for their custody and application.. As to such assets coming to the hands of the administrator, the language of the statute is: “And the administrator or executor receiving the same shall be chargeable therewith as with other assets-which have come into their possession in the regular course of administration.” Gen Stat. 458, § 10. While, then, the lands of the decedent are, strictly speaking, never assets in the hands of an administrator, and only become such in the hands of the executor, through special provisions in the will for that purpose, yet the proceeds of the sale of such real estate may *327become assets in the hands of the administrator, and his accountability correspondingly extended.

No' such assets are alleged to be in the hands or subject to the control of the administrator; in fact, no attempt to sell the lands in question appears to have been made. The whole subject is then foreign to the proper accountability of the administrator. It is not to be denied that it might become material to the present suit to seek a sale of the land in question, if it should appear that the present assets are insufficient for the payment of the debts of the estate; but such a proceeding would be incidental to the principle purpose of the complaint, and would not render it necessary that Sims should be made a party. It must be assumed that Sims claims to hold under title paramount to that asserted for the intestate; in that case it would be competent to sell the lands in Sims’ possession, if necessary for the purposes of administration without making him a party, and leave the purchaser to contest the title of Sims in a proper action.

Neither the administrator nor the heirs of the intestate are seeking any remedy against the land in Sims’ hands; the plaintiff alone is seeking to force them into such a controversy. One objection to allowing the plaintiff to insist that the controversy with Sims should be prosecuted at the expense of the estate and for his benefit is the fact, alleged in the complaint, that the plaintiff’s judgment has a lien against the land in question as the estate of the judgment debtor. If so, the plaintiff has a direct remedy by enforcing his judgment against the land. There is, therefore, no necessity arising from the want of an adequate remedy at law that would justify the plaintiff in attempting to compel the administrator and heirs of the intestate to contest Sims’ title at the expense of the estate, and for all that appears without a reasonable hope of success.

There is also another objection. Sims is not placed in the position of having assets of the intestate estate, through either a wrong of the administrator or of himself. He must be regarded as a bona fide holder of possession under claim of title, and can only be ousted by legal process. He is not in the least affected by the equities in the present case, and cannot be deprived of his *328defence at law; nor can he waive it to the disadvantage of the other parties. Sims must, therefore, be regarded as a stranger to the present controversy, and the cause of action alleged against him as a distinct and independent cause of action, forming no part of the proper matters in controversy.

The order appealed from must be affirmed and the appeal dismissed.

McIver and McGowan, A. J.’s, concurred.

Citation profile

Relationships

How this case has been treated — in progress