Wilson v. First Nat. Bank

• Decision Date: 01 February 1923
• Docket Number: 7 Div. 364.
• Citation: 209 Ala. 70,95 So. 340
• Parties: WILSON ET AL. v. FIRST NAT. BANK OF GADSDEN.
• Court: Alabama Supreme Court

95 So. 340

209 Ala. 70

WILSON ET AL. v. FIRST NAT. BANK OF GADSDEN.

7 Div. 364.

Supreme Court of Alabama

February 1, 1923

Appeal from Circuit Court; Etowah County; Woodson J. Martin, Judge.

Bill by First National Bank of Gadsden against J. B. Wilson and others. From a decree overruling demurrers to the bill respondents appeal. Affirmed.

Dortch Allen & Dortch, of Gadsden, for appellants.

Goodhue & Goodhue, of Gadsden, for appellee.

MILLER J.

This is a bill of complaint, in equity, filed by the First National Bank of Gadsden, Ala., a corporation, against J. B. Wilson Viola Wilson, and H. D. Sturkie. The bill avers complainant has a judgment against J. B. Wilson for $2,766.32. The bill seeks to have declared null and void a deed made by J. B. Wilson to his wife, Viola Wilson, conveying 80 acres of land to her, and to have the land sold to pay its judgment, on the ground of fraud, that it was made with the intent to hinder, delay, or defraud his creditors, and is without consideration. The bill also seeks to have declared null and void a mortgage on real and personal property executed by J. B. Wilson and his wife, Viola Wilson, to H. D. Sturkie, and the property sold to satisfy the judgment debt of complainant, on the ground it was made with intent to hinder, delay, or defraud the creditors of J. B. Wilson; and the bill also avers this mortgage constituted a general assignment by which J. B. Wilson conveyed substantially all of his property subject to execution, to secure a prior debt by which a preference or priority of payment is given to H. D. Sturkie over the remaining creditors of J. B. Wilson. And the bill seeks in the alternative to have the mortgage declared a general assignment on the part of J. B. Wilson for the benefit of all of his creditors, and that the property in it be sold for their benefit. The debt of complainant was contracted prior to August 23, 1919, it was reduced to judgment on June 5, 1922, and a certificate of the judgment was issued by the clerk and registered by the probate judge on June 6, 1922, as the statute directs. The deed by J. B. Wilson to Viola Wilson was executed August 23, 1919, and the mortgage by J. B. Wilson and Viola Wilson to H. D. Sturkie was executed on January 21, 1922, both were recorded, but the dates of the filing for recordation of these instruments are not given. The defendants separately demurred to the bill of complaint, the court overruled the demurrers, from which decree the defendants appeal, and each assigns that decree as error.

Is this bill of complaint multifarious? True, it unites in one bill two different defendants in two alleged fraudulent conveyances, in different transactions, conveying different property of the grantor, the debtor; one defendant is a grantee in a deed and the other is a grantee in a mortgage. The instruments were executed at different times by the debtor, and there is no averment that these transactions had any connection with each other in intent or fact; still that does not render the bill multifarious, as it avers each conveyance was made with the intent to hinder, delay, or defraud the creditors of the grantor, and the object of the bill is to pursue and subject the grantor's property, conveyed by these separate instruments, to the satisfaction of complainant's debt. A bill with such averments has been held by our court not subject to demurrer for multifariousness or misjoinder of defendants. Hill Bros. v. Moone, 104 Ala. 353, 16 So. 67; Ex. Nat. Bk. v. Stewart, 158 Ala. 218, 224, 48 So. 487; Lehman v. Meyer, 67 Ala. 396; Smith v. Young, 173 Ala. 190, 55 So. 425. This principle is thus clearly stated in 21 Corpus Juris, p. 318, and it is fully sustained by the Alabama authorities there cited:

"A creditor's bill against several defendants to set aside several distinct fraudulent conveyances or mortgages of separate parcels of land is not multifarious, particularly where defendants are alleged to have acted pursuant to a concerted conspiracy or combination; but the rule holds good even where the parties who are joined as defendants acquired different portions of the property under separate and distinct conveyances executed at different times, and there is no allegation that these several sales and conveyances had any actual connection with each other in any way, either in fact or intent."

Section 3095 of the Code of 1907 provides:

"A bill is not multifarious which seeks alternative or inconsistent relief growing out of the same subject-matter."

This bill is not multifarious when it seeks by a judgment creditor to have a mortgage decreed null and void, because made with intent to hinder, delay, or defraud creditors, and also seeks in the alternative to have the mortgage declared a general assignment for the benefit of all creditors of the mortgagor. They are kindred rights and remedies afforded by the statutes (sections 4293 and 4295 of the Code of 1907), to have the judgment of the complainant satisfied out of the property of the debtor. Hard v. Am. Tr. & Savs. Bk., 200 Ala. 264, 76 So. 30.

It is true the bill seeks a sale of the land by deed to Mrs. Wilson, dated August 23, 1919, for the satisfaction of complainant's debt on the ground of fraud, and in the alternative seeks a sale of the land in Sturkie's mortgage, dated January 21, 1922, for the benefit of all creditors, on the ground it is a general assignment of substantially all of his property, etc. Each relief is proper in one bill; each seeks satisfaction of complainant's debt from the property of the debtor. If both should be granted, the court could sell the land in Mrs. Wilson's deed, and if the part of the proceeds going to complainant did not pay in full its judgment, then the unpaid balance of the debt could participate with the creditors in the proceeds of the sale of the land and personal property in the mortgage. This does not render the bill multifarious.

Its purpose is single, and its design is to collect a debt out of property of the debtor. They all look to complainant's right to pursue the property of the judgment debtor, for the purpose of subjecting it to the satisfaction of the judgment debt by avoiding a conveyance invalidly made in 1919 on a part of it, and to have a conveyance made later in 1922, of substantially...