Southern Ry. Co. v. Hartshorne

• Decision Date: 11 April 1907
• Citation: 43 So. 583,150 Ala. 217
• Parties: SOUTHERN RY. CO. ET AL. v. HARTSHORNE ET AL.
• Court: Alabama Supreme Court

43 So. 583

150 Ala. 217

SOUTHERN RY. CO. ET AL. v. HARTSHORNE ET AL.

Supreme Court of Alabama

April 11, 1907

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

Suit by Acton C. Hartshorne and others against the Southern Railway Company and others. From a decree overruling a demurrer to the bill and motion to dismiss the same, defendants appeal. Affirmed.

This was a bill against judgment creditors of the city of Decatur Ala., a municipal corporation. The allegations material to this case are that certain parties therein named by deed conveyed to the Southern Railway Company a certain tract of land described in the bill, and that the city of Decatur furnished the purchase money and paid the purchase price of said lots, and caused the title to be taken in the name of the Southern Railway Company; and, if mistaken in this, it is averred in the alternative it did not pay for said lots or parcel of land with funds belonging to it, but with funds belonging to the mayor and city council of Decatur. It is also alleged that the purchase of the lot was made by the city of Decatur, which gave it to the Southern Railway Company as a gift. The court is asked to set aside the deed conveying the lot to the Southern Railway Company, and to hold it subject to the judgment of orator against the mayor and city council of Decatur, and that the Southern Railway Company account to orators for the value of all improvements made by it. Demurrers were filed by the Southern Railway Company as follows: "There is no equity in the bill. It does not appear that complainants have any lien on the said land. It is not alleged that the mayor and council of Decatur is insolvent. It does not appear that either of the defendants were guilty of any fraud in the transaction. It does not appear therefrom that the bill is filed in behalf of complainants and such other creditors of the defendant as may join in suit. It does not appear therefrom but that said money with which said land was purchased was loaned to defendant Southern Railway by its codefendant. It does not appear therefrom that there exists in favor of complainants any trust in or upon said funds with which the land was purchased. It does not appear but that the municipal corporation had full power and authority to do the acts complained of, and that these acts were lawful." The mayor and city council of Decatur demurred, raising the question as to the nonjoinder of the grantors in the deed to the property described, and set up that they were proper parties complainant. Motion to dismiss and the demurrers were overruled, and the appeal is from this decree.

Humes &amp Speake, for appellant Southern Ry. Co. Callahan & Harris, for appellant town of Decatur. John C. Eyster and Tennis Tidwell for appellees.

DOWDELL J.

The appeal in this case is prosecuted from the decree of the chancellor overruling respondent's demurrer to the bill and motion to dismiss the same for want of equity. The bill is one by creditors, and is filed under section 818 of the Code of 1896. The demurrer is addressed to the bill as a whole. The averments of the bill, as to the alleged fraud are made in the alternative. The bill, among other things, alleges that the complainants are judgment creditors of the respondent the mayor and council of the city of Decatur, a municipal corporation. The bill does not purport to be filed by the complainants as judgment...