Bobb v. Bobb

• Decision Date: 27 January 1880
• Parties: JOHN H. BOBB ET AL., Appellants, v. CHARLES BOBB ET AL., Respondents.
• Court: Missouri Court of Appeals

8 Mo.App. 257

JOHN H. BOBB ET AL., Appellants,

v.CHARLES BOBB ET AL., Respondents.

St. Louis Court of Appeals, Missouri.

Jan. 27, 1880.

A bill in equity which seeks to charge several defendants with fraud is multifarious, where it does not appear from the allegations of the bill that the defendants were all parties to one scheme of fraud, or have a common interest in the general or principal point in issue.

APPEAL from the St. Louis Circuit Court.

Affirmed.

H. A. & C. A. CLOVER, and HITCHCOCK, LUBKE & PLAYER, for the appellants: A bill by creditors against executor and heir, and several distinct purchasers of distinct parts of testator's real estate, for account and performance of agreement, held not multifarious.--5 Mad. 144, note b Barb. on Parties, 349. And several judgment-creditors, holding different judgments, may unite in filing a creditors' bill to reach the equitable interests and choses in action of the debtor, or to obtain the aid of the court to enforce their liens at law.--1 Barb. Ch. 154; 1 Paige, 637; 3 Paige, 320; 4 Paige, 23; 6 Johns. Ch. 151; 12 Barb. 27. A bill is not multifarious where the interests and liability of the defendants are separate, but grow out of or relate to a common subject-matter.-- Woodward v. Hall, 2 Tenn. Ch. 166; Fogg v. Rogers, 2 Coldw. 290, 296; Johnson v. Brown, 2 Humph. 327; Hammond v. Hudson County, 20 Barb. 278; Waller v. Shannon, 53 Miss. 500; Barclay v. Plant, 50 Ala. 509; McGowan v. McGowan, 48 Miss. 265. The whole question has been most learnedly examined and adjudged by the Supreme Court of the United States in the noted case of Mrs. Gaines, 2 How. (U. S.) 619, 641, 642. The English cases are referred to.-- Campbell v. Mackey, 7 Sim. 564; 1 Myl. & Cr. 603; Attorney-General v. Craddock, 3 Myl. & Cr. 85; 7 Sim. 241, 264.

JEFF. CHANDLER, for the respondents: Where the subject-matter of the litigation is composed of distinct objects, in all of which there is no common interest in the plaintiff, the bill is multifarious.-- Stalcup v. Garner, 26 Mo. 72; Bobb v. Woodward, 42 Mo. 482; Jones v. Paul, 9 Mo. 295; Doan v. Holly, 25 Mo. 357; Robinson v. Rice, 20 Mo. 229.

HAYDEN, J., delivered the opinion of the court.

This is a petition, in the nature of a creditors' bill, to subject a large number of distinct pieces of property, many of which are described as encumbered by deeds of trust, to the plaintiffs' judgment, the prayer being that the lands may be adjudged to be the property of the debtor, Charles Bobb, free from the lien of the deeds of trust, which are alleged to have been made in fraud of creditors, and from any claim on the part of the parties in whose names the debtor has caused the property to be placed. There was a demurrer to the bill for multifariousness and other grounds, and judgment upon the demurrer; and from this the plaintiffs have appealed.

There are twenty parties defendant; and while the conveyances made to all have a common source of title in Charles Bobb, who, it is alleged, has long endeavored, by means of falsely making and receiving conveyances, to hinder, delay, and defraud his creditors, yet it is admitted that the grantees have no interests in common. The conveyances are separate; they were made at different times; and the defendants are beneficiaries' trustees, indiscriminately joined as defendants.

Tried even by the test of the cases relied on by the appellants, this bill must be pronounced multifarious. The rule, as admitted in those cases is, that persons otherwise unconnected may be joined as defendants where there is a common interest among them all, centring in the point in issue in the cause. Fellows v. Fellows, 4 Cow. 701. The difficulty is in the application of the rule; but a brief reference to the principal cases cited by the appellants will show how it has been applied. In Bank of America v. Pollock, 4 Edw. Ch. 215, although the defendants held distinct moieties of the stock sought to be subjected to the plaintiffs' demand, they acquired the stock through one and the same fraudulent contrivance; and here the point in issue centred. In Hammond v. Hudson, etc., Co., 20 Barb. 378, the property came into the hands of both defendants under the same fraudulent assignment and judgment, which, it was averred, were made and procured to defraud creditors.

In Fellows v. Fellows, supra, relied on as a leading case, it is to be observed that, apart from the combination and agreement to act in concert, which the defendants denied, the bill confessed, in the opinion of the judges, that the defendants had knowledge of the determination and plan of the debtor, as charged, to fraudulently transfer all of his property. Thus the chancellor says: “From the allegations of the bill, from the relations of those defendants to each other, and from the course and nature of these transactions, it sufficiently appears, and may be taken as a fact, that each of these defendants had knowledge of the conveyances to the other defendants, and of the fraudulent object of all the conveyances. In this respect all the defendants were privy to a scheme of fraud, of which the consummation consisted in separate conveyances of separate parts of the property.” 4 Cow. 688. See also pp. 696, 697, 703. The transaction was pronounced to be one transaction, in...