Opinion
05-09-1889
BARRET v. FOLEY et al.
Gilbert & Atkinson, for the motion. Carroll Robbins, contra.
On motion to amend final decree.
Gilbert & Atkinson, for the motion. Carroll Robbins, contra.
BIRD, V. C. This motion is based upon the notion that inequality has been done to certain of the defendants by the general manner in which the decree for costs has been entered. It is said that, as the decree now stands, some of the defendants being insolvent, the whole burden will fall on a part only. Hence the insistment that the decree should be so modified as to make each defendant liable only for his just proportion.
1. To grant this prayer would be doing great injustice to the complainant, by placing part of the burden of the suit on her whom the court has adjudged to be in the right, to the relief of those whom the court has adjudged to be in the wrong.
2. In this case the defendants all made their defense by or through one of their number; his resistance and theirs being of the same nature. The court decided that they were all in the wrong, and that they could not hold as against the complainant. Now, as intimated, the court cannot excuse one of such class without doing injustice to the complainant. The insolvency of one or more cannot alter the case as to her, nor warrant the court in casting a part of the burden upon the innocent. The defendants joined in making their defense of a claim of title; and that title they claimed to have derived from the same source, and the defense of one in this particular was the defense of all. It is true that one claimed under a mortgage, another under a judgment and a sheriff's sale, and the like, yet all strove with equal effort to prove that the true title was in John Barret, one of the defendants, and not in Mary, the complainant.
3. Nor are these views changed or modified by the fact that the title over which the dispute arose, was, at the time of the execution of the mortgage and the rendition of the judgment, in the defendant, John Barret. This would have been an important element in the question of costs, respecting the liability of the defendants, had they not proceeded further than to answer and to the cross-examination of the witnesses produced by the complainant. But the activity of the defendants did not rest at this point; for every means of defense was employed, and with all assiduity, upon the allegation that the paper title which was in John Barret was the true equitable one, and that the claim of the wife to that title was without foundation. In such case, I can find no authority for distributingthe costs between the different defendants. The motion will be denied, with costs.