Stamey v. Fortner, 7 Div. 296

• Decision Date: 28 February 1935
• Docket Number: 7 Div. 296
• Citation: 160 So. 116,230 Ala. 204
• Parties: STAMEY et al. v. FORTNER et al.
• Court: Alabama Supreme Court

160 So. 116

230 Ala. 204

STAMEY et al. v. FORTNER et al.

7 Div. 296

Supreme Court of Alabama

February 28, 1935

Rehearing Denied March 28, 1935

Appeal from Circuit Court, DeKalb County; A.E. Hawkins, Judge.

Bill in equity by Tenney Stamey and others against Wallace Fortner and others. From a decree sustaining a demurrer to the bill as amended, complainants appeal.

Affirmed.

Thos W. Millican, of Fort Payne, and Hugh A. Locke, of Birmingham for appellants.

Haralson & Son, of Fort Payne, for appellees.

KNIGHT Justice.

Bill by Mrs. Tenney Stamey and others, exhibited in the circuit court of DeKalb county, against Wallace Fortner and others. In the bill as originally filed, the complainants sought to have three certain deeds of conveyance, executed by W.H. Fortner canceled for failure of the grantees to pay certain annual rents, constituting conditions subsequent, and for an accounting.

It appears from the averments of the bill that W.H. Fortner in his lifetime executed three separate conveyances, one to Wallace Fortner, one to Archibald Fortner, and one to J.W Fortner. These grantees were sons of the grantor, and separate tracts of land were conveyed to each.

The bill is filed by a daughter, and two of the grandchildren of W.H. Fortner, deceased, the grandchildren being children of a predeceased daughter.

The deeds are made exhibits to the bill.

The bill as originally filed, and as amended on March 21, 1934, and as further amended on May 16, 1934, without reference to any other defects, was clearly multifarious, and subject to respondents' apt ground of demurrer pointing out this defect.

It has been repeatedly held that multifariousness, abstractly, is incapable of an accurate or exact definition, but it is generally understood to include those cases "where a party is brought before the court as a defendant on the record, with a large portion of which, and in the case made by which, he has no connection whatever." Story's Eq. Pl., § 530; Kennedy's Heirs v. Kennedy's Heirs, 2 Ala. 571, 573.

However, it is well settled in this jurisdiction that it is not necessary that all the parties to the bill should have an interest in all the matters in controversy, but it is sufficient if each defendant has an interest in some of the matters involved, and they are connected with the others. Henry et al. v. Ide et al., 208 Ala. 33, 93 So. 860; Glass et al. v. Stamps et al., 213 Ala. 95, 104 So. 237; Wilkinson et al. v. Wright, 228 Ala. 243, 153 So. 204.

In the case made by the bill up to its last amendment, there was an attempt to unite in one and the same proceedings three several and wholly disconnected causes of action against three different parties, and as to which there was no sort of community of interest among the defendants. The bill up to its last amendment attempted to adjudicate in one action the title to three separate tracts of land conveyed by a common grantor to three different parties, each party taking by a separate deed a separate parcel of the land, and there is no averment in the bill to show any connection between the parties in the acquisition of the different parcels.

There is nothing in the bill to show any concert of action between the defendants in procuring the execution of the conveyances. The bill, certainly up to the time of its last amendment, was multifarious, and to say nothing of other possible defects, the demurrer taking the point of multifariousness was properly sustained.

Subsequently the complainants attempted to further amend the bill by bringing forward an entirely new and inconsistent ground for equitable relief, in fact a new cause of action, wholly variant from the original theory of the bill and repugnant thereto. This new ground of relief was not brought forward by way of a...