Hays v. McCarty

• Decision Date: 11 January 1940
• Docket Number: 6 Div. 548.
• Citation: 195 So. 241,239 Ala. 400
• Parties: HAYS v. MCCARTY ET AL.
• Court: Alabama Supreme Court

195 So. 241

239 Ala. 400

HAYS v. MCCARTY ET AL.

6 Div. 548.

Supreme Court of Alabama

January 11, 1940

Rehearing Denied April 4, 1940.

Appeal from Circuit Court, Jefferson County; E. M. Creel, Judge.

Bill in equity by Mary Frances Hays, a minor, suing by her guardian J. H. Hays, against Robert E. McCarty, Jr., Mary A. Gant. Kathleen McCarty Hays, W. C. McCarty, Jr., as executor of the estate of W. C. McCarty, deceased, and the estate of Mary Frances McCarty, deceased, to set aside a conveyance as a fraud on creditors and for discovery. From a decree sustaining a demurrer to the bill, complainant appeals.

Affirmed in part, reversed in part, and remanded.

Amzi G Barber, Hugh Barber, and W. C. Barber, all of Birmingham, for appellant.

Rosenthal & Rosenthal, Walter S. Smith, and Walter S. Smith, Jr., all of Birmingham, for appellees.

FOSTER Justice.

This appeal is from a decree sustaining demurrer to a bill in equity.

The bill is in what counsel and the court refer to as two aspects. The material features of the first aspect are set out in paragraph 8 as amended. Those of the second aspect are in paragraph 9. The demurrer is to the bill as a whole, and to each of the two aspects separately. The decree of the court sustained the demurrer to each such aspect.

The 8th paragraph as amended is as follows: "Complainant avers that said transfer of said property by the said W. C McCarty, now deceased, to the said Mary Frances McCarty, now deceased, was voluntary, or, that if said transfer of said property was for a valuable consideration that such consideration was wholly inadequate so as to render same invalid as against said grantor's creditors, or, that said conveyance was made by the said W. C. McCarty, now deceased, with the intent at the time of said transfer to hinder, delay, or defraud complainant and said grantors other creditors in and about the collection of their debts or claims against him, and that the said Mary Frances McCarty was a party to said fraud and participated therein or that the said Mary Frances McCarty had knowledge of facts surrounding said transfer that were sufficient to put her on inquiry as to said fraud therein."

The decree of the court expressed the opinion that the alternative embraced in that aspect was insufficient, wherein it was alleged: "Or that said conveyance was made by the said W. C. McCarty, now deceased, with the intent at the time of said transfer to hinder, delay or defraud complainant and said grantors other creditors in and about the collection of their debts or claims against him, etc."

And that that aspect is no stronger than its weakest feature. And since one feature is insufficient an apt demurrer to the aspect as a whole should be sustained on that account.

It will be noticed that the first aspect seeks to set aside a conveyance of property by a debtor after the accrual of complainant's claim, but before a judgment is rendered on it; and the second aspect is for a discovery of concealed assets by the debtor.

When a bill is in two aspects and the demurrer is addressed to it as a whole, and one aspect is not subject to demurrer, it should be overruled though the other aspect is defective. Breeding v. Ransom, 220 Ala. 82, 123 So. 899; McMillan v. McMillan, 218 Ala. 559, 119 So. 676.

But where one aspect of the bill predicates relief upon several disjunctive sets of averment, each as furnishing ground for relief, and one of such alternative averments is insufficient as a ground for such relief, that aspect of the bill, or it may be the bill as a whole when there is no other aspect, fails to make out a case of equitable right. Crisp v. First National Bank, 224 Ala. 72, 139 So. 213; Curran v. Olmstead, 101 Ala. 692, 14 So. 398; Mountain v. Whitman, 103 Ala. 630, 16 So. 15; Taylor v. Dwyer, 131 Ala. 91, 32 So. 509.

The particular alternative of the first aspect which the court held to be insufficient was also so held by us in the case of Crisp v. First National Bank, supra, for the reasons there set out. We therefore concur in the holding by the trial court that the first aspect of the bill was subject to the demurrer interposed on grounds 9 and 19; that is, that the fraud set up is stated as the conclusion of the pleader.

The 9th paragraph as amended, embracing the second aspect of the bill, that of a discovery, is as follows: "Complainant further avers and represents unto the court that the said W. C. McCarty, now deceased, at the time of his decease, had money, property and effects which were and are concealed, hidden out and unknown to complainant so that without the equitable process of this court, execution or other process against his estate or his personal representative would be unavailing to his creditors, and that respondents Robert E. McCarty, W. C. McCarty, Jr., Mary A. Gant and Kathleen Hays and divers and sundry other persons, firms or corporations, whose other, further or different names are to the complainant unknown, have either individually or collectively, money, property and effects that are properly a part of the estate of the said W. C. McCarty, deceased, or a substantial interest therein is the property of said estate of W. C. McCarty, deceased, which said property or a substantial interest therein was in the possession of or under the control of said named respondents prior to and at the time of the death of the said W. C. McCarty and which said property is kept concealed, hidden out and unknown to complainant and/or the personal representative of the said W. C. McCarty, deceased, so that same shall not become a part of said W. C. McCarty, deceased, estate, or will not be subject to the payment of the debts of said W. C. McCarty, deceased, by the exercise of ordinary legal proceedings and without the aid and assistance of this court in the premises."

The court expressed the opinion that the averments of this paragraph render it subject to demurrer for two reasons,--(1) in the use of the words "individually or collectively," where they appear, and (2) in the use of the words "and/or" in it.

But for those particular objections the allegations meet substantially the requirements of a bill for discovery of assets by a creditor under section 7343, Code. Pollak v. Billing, 131 Ala. 519, 32 So. 639; Elliott v. Kyle, 176 Ala. 167, 57 So. 752; Hackney v. Yarbrough, 233 Ala. 365, 172 So. 107.

We think the court was most too critical in sustaining the demurrer to this aspect of the bill for the two reasons indicated above. In our opinion the paragraph as it is written is not so indefinite or uncertain or imperfect as to be subject to demurrer in those respects.

The assignments of error question the decree insofar as it sustains the demurrer to each of the aspects, separately.

A demurrer is an entity in pleading, and it is due to be sustained if any one of the grounds is well taken. Hammons v. Hammons, 228 Ala. 264, 153 So. 210. But when the demurrer is addressed separately to distinct aspects of the bill on which separate relief is sought, it is as though it were addressed to separate counts of a complaint.

There should be, as there are in the instant case, separate assignments of error in this Court in each such respect. When so, the ruling on the demurrer to each aspect may be separately considered from the others. There may be error as to one and not as to others. Allison-Russell-Withington Co. v. Sommers, 219 Ala. 33, 121 So. 42.

It is also insisted as to the bill in any aspect that the claim or right is barred by limitations apparent on the face of it, and that after ten years the presumption is that the judgment has been paid.

There is no conclusive presumption of payment short of twenty years. Patterson v. Weaver, 216 Ala. 686, 114 So. 301. Within that period a suit on the judgment may be either maintained (Section 8942, Code), or the judgment may be revived. Sections 7872, 7873, Code. The statutory presumption of payment after ten years (section 7871, Code) casts the burden on plaintiff of proving that it is not satisfied. Second National Bank v. Allgood, 234 Ala. 654, 176 So. 363. The bill here alleges that it is unsatisfied to the extent of $10,000.00 principal.

A creditor to maintain this suit in either aspect need not be a judgment creditor,--sections 7342, 7343, Code,--although the claim must have been reduced to a judgment, when it is of such nature as that it sounds in damages merely. Dowling v. Garner, 195 Ala. 493, 70 So. 150; Galloway v. Shaddix, 197 Ala. 273, 72 So. 617; Carter v. Longshore, 230 Ala. 486, 162 So. 115

.

The claim, though originally sounding in damages, was liquidated by the judgment, even though it may not be enforceable as such judgment without the rendition of another judgment on it.

The original bill was filed by J. H. Hays as guardian for the use of Mary Frances Hays, a minor, who was the judgment plaintiff. A demurrer made the point that Mary Frances Hays was not a party. It was later amended so as to make Mary Frances Hays complainant by J. H. Hays, as guardian. She was a necessary party in equity. Wallace v. Montgomery, 226 Ala. 25, 145 So. 419; Upshaw v. Eubank, 227 Ala. 653, 151 So. 837; Amann v. Burke, 237 Ala. 380, 186 So. 769. The demurrer raised the point that this was a complete change of parties. This contention has been decided adversely to appellee, assuming that it is properly presented. Ex parte Kelen, 223 Ala. 87, 134 So. 856, and differentiated in Ex parte Cabaniss, 235 Ala. 181, 178 So. 1.

But in general such question should be raised by a motion to strike the amendment. Turner v. Roundtree, 30 Ala. 706; Springfield Fire & Marine Ins. Co. v. DeJarnett, 111 Ala. 248, 19 So. 995; Western Union Telegraph Co. v. Crumpton, 138 Ala. 632, 36 So. 517.

The court did not sustain...