Henry v. Tennessee Live Stock Co.

• Decision Date: 18 November 1909
• Citation: 50 So. 1029,164 Ala. 376
• Parties: HENRY ET AL. v. TENNESSEE LIVE STOCK CO.
• Court: Alabama Supreme Court

50 So. 1029

164 Ala. 376

HENRY ET AL. v. TENNESSEE LIVE STOCK CO.

Supreme Court of Alabama

November 18, 1909

Appeal from Chancery Court, Marshall County; W. H. Simpson Chancellor.

Suit by the Tennessee Live Stock Company against Joe L. Henry and others. From a decree for complainant, defendants appeal. Reversed and remanded.

Street & Isbell, for appellants.

John A Lusk, for appellee.

MAYFIELD J.

The bill as originally filed was to declare void and annul certain mortgages, contracts, or conveyances purporting to be executed in the name of the complainant corporation, by one Grizzell, to the defendants, Sam Henry & Son, and to Joe L Henry, because said Grizzell had no authority to execute such documents for the corporation, and because there was no consideration to support them, and that they were obtained by undue influence, etc., and to have the said grantees mortgagees, etc., account to the corporation for the property thereby acquired and that they be declared and held as trustees ex malificio of such property, and required to account for the value of that part disposed of by them. A demurrer was sustained to the bill, because it did not offer to do equity by paying the debts intended to be secured by the mortgages. The bill was then amended by adding four paragraphs thereto, from 21 to 24, inclusive, which sought to have these mortgages, contracts, conveyances etc., declared a general assignment for the benefit of all the creditors of the corporation, and to have the corporation declared insolvent, and all its assets declared a trust fund, to be marshaled and administered by the court in payment of the debts due from the corporation.

The bill as amended is clearly and certainly multifarious. In one aspect it alleges that the respondents are creditors of the corporation, and in another that they are not. In one aspect it alleges that the mortgages, contracts, and conveyances are valid, and in another that they are void. The bill as amended shows neither the right nor necessity of the corporation to maintain a bill to declare itself to be insolvent and to ask the court to administer its assets. The bill is therefore clearly multifarious, even under section 3095 of the Code as amended. While inconsistent, the reliefs grow partly out of the same contract or transaction and relate partly to the same property, it is not between the same parties; but the necessary parties are different in the two cases. The creditors of the corporation are necessary parties to the bill in one aspect, and unnecessary parties to it in the other.

A bill in equity may be filed in different aspects, but each aspect must make a good bill, and if either aspect is bad then the whole is bad, and subject to demurrer upon...