Hard v. American Trust & Sav. Bank

• Decision Date: 17 May 1917
• Docket Number: 6 Div. 487
• Citation: 200 Ala. 264,76 So. 30
• Court: Alabama Supreme Court
• Parties: HARD et al. v. AMERICAN TRUST & SAVINGS BANK.

76 So. 30

200 Ala. 264

HARD et al. v. AMERICAN TRUST & SAVINGS BANK.

6 Div. 487

Supreme Court of Alabama

May 17, 1917

Appeal from Chancery Court, Jefferson County; A.H. Benners Chancellor.

Bill by the American Trust & Savings Bank against James H. Hard and others. From adverse rulings on their demurrers to the bill respondents appeal. Affirmed.

Huey &amp Welch, of Bessemer, for appellants.

E.N Hamill, of Birmingham, for appellee.

McCLELLAN J.

The appeal is by respondents from adverse rulings on their demurrers to the bill, original and as amended. The consideration here is necessarily confined to the matter presented by the appeal. This bill is filed by the appellee as a simple contract creditor of the appellants James H. Hard and Annie G. Hard, his wife. Along with these two respondents Herbert G. Hard, their son, is brought in as a party respondent: So on the theory that the son is the grantee in a conveyance by his parents, that is voidable at appellee's election, because infractive of the appellee's rights as creditor of the grantors therein. McCurdy v. Kenan, 178 Ala. 345, 59 So. 489; McCurdy v. Kenan, 185 Ala. 183, 186, 64 So. 578. In one of its major features the bill effectually invokes the creditor's remedy for discovery of assets of his debtor provided by Code, § 3740. Pollak v. Billing, 131 Ala. 519, 526, 527, 32 So. 639.

It is insisted for the appellants that the bill is rendered multifarious because: (a) It seeks a discovery of assets which it is averred the debtors are concealing: (b) It seeks the pronouncement that the debtors have made a conveyance of property in fraud of creditors, of whom appellee is one: (c) It seeks relief as upon the theory that the debtors have made a transfer or conveyance of all of their property, which act, under the statute, the creditor would have adjudged a general assignment for the benefit of all creditors.

There is unity in the right the complainant would assert and have enforced. A bill is not rendered multifarious by the fact that it seeks alternatively the relief desired under the phases of the bill which, for convenience, we have indicated above by the letters b and c. Smith v. Young, 173 Ala. 190, 55 So. 425, giving appropriate effect to the provisions of Code, § 3095. There is no inharmony, no introduction of distinct, independent matters for adjudication wrought by the assertion in a bill of the matters justified by Code, §§ 3740, 4293, 4295. The declaration and effectuation of the creditor's right to have his debt discharged out of the debtor's property and to pursue and subject the debtor's property thereunto by avoiding conveyances or transfers invalidly made or to have a transfer of substantially all of the debtor's property pronounced a general assignment under the statute (Code, § 4295) are all directly referable to, and immediately connected with, the creditor's right to have his demand satisfied out of his debtor's property. The fact that some of the respondents have no interest in or concern with all of the subjects of inquiry instituted by a bill in equity did not render the bill multifarious even before the enactment of Code, § 3095. Truss v. Miller, 116 Ala 494, 505, 22 So. 863; Ellis v. Vandegrift, 173 Ala. 142, 55 So. 781; Kingsbury v. Flowers, 65 Ala. 479, 483, 39 Am.Rep. 14. It is hardly necessary to state that the bill, originally and as amended, bears the allegation that Herbert G. Hard was a creditor of his grantors, this conclusion...