Wimberly v. Montgomery Fertilizer Co.

• Decision Date: 20 November 1901
• Citation: Wimberly v. Montgomery Fertilizer Co., 132 Ala. 107, 31 So. 524 (Ala. 1901)
• Parties: WIMBERLY ET AL. v. MONTGOMERY FERTILIZER CO. [1]
• Court: Alabama Supreme Court

31 So. 524

132 Ala. 107

WIMBERLY ET AL. v. MONTGOMERY FERTILIZER CO. ^[1]

Supreme Court of Alabama

November 20, 1901

Appeal from chancery court, Lee county; R. B. Kelly, Chancellor.

Bill by the Montgomery Fertilizer Company against H. T. Wimberly and others. From a decree for complainant, defendants appeal. Affirmed.

Jno. M Chilton and Barnes & Duke, for appellants.

Watts Troy & Caffey, for appellee.

HARALSON J.

The bill was filed to set aside alleged gifts or conveyances of property by H. T. Wimberly to his wife, C. P. Wimberly because they were voluntary, without consideration and void as to the complainant and existing creditors of said H. T Wimberly.

1. A conveyance which is purely voluntary, not tainted with an actual intent to hinder, delay and defraud creditors, is void only as to existing creditors, but when tainted with actual fraud, is void as to subsequent, as well as to existing creditors. Dickson v. McLarney, 97 Ala. 383, 388, 12 So. 398; Seals v. Robinson, 75 Ala. 363. Only constructive fraud is alleged in the bill. The burden was on complainant to establish the existence of debts by H. T. Wimberly to him at the time of said alleged conveyances; and if he bought property and paid for it with his own money, taking the title in the name of his wife, the conveyance was fraudulent and void against existing creditors. Yeend v. Weeks, 104 Ala. 301, 16 So. 165, 53 Am. St. Rep. 50; Peevey v. Cabaniss, 70 Ala. 253.

2. It is alleged that H. T. Wimberly, on March 1, 1893, while indebted to complainant, was the owner of a large number of shares in the Opelika Compress Company, a corporation, and that on the 1st of March, 1893, he transferred 25 shares of stock owned by him in said company to his wife, C. P. Wimberly, which transfer was wholly voluntary, without consideration and void as against complainant and other creditors of said H. T. Wimberly.

It is also alleged, that at the same time he owned a half interest in a storehouse in Opelika, known as the "Lightfoot Store"; that on the 17th November, 1894, he pretended to convey the same to his brother, T. P. Wimberly, and on the 26th December, 1894, the said T. P. Wimberly conveyed the same to said C. P. Wimberly, the wife of said H. T. Wimberly, and that both of said deeds were voluntary and without consideration,--the one to said T. P. Wimberly having been executed with the understanding between him and said H. T. Wimberly, that the said T. P. should convey the property to said C. P. Wimberly, so as to put the title in her.

Afterwards, the bill was amended by adding, to the fourth section, that if mistaken as to the averment that said Wimberly transferred to his wife, C. P. Wimberly, the 25 shares of stock held by him in said corporation, then complainant averred, that said C. P. Wimberly had no means of her own, and if the stock was issued by the corporation directly to her, or if the same was purchased by her from any other person, the money paid by her therefor, was the money of her husband, H. T. Wimberly, and that said money was given to her by her husband and invested in said stock, and that there was no consideration for the said gift, by said H. T. Wimberly to her, and the same was a fraud upon complainant and the other creditors of said H. T. Wimberly.

The bill was further amended by adding to its sixth section the averment, that if mistaken in the averment, that there was no consideration passing from the said T. P. to said H. T. Wimberly, nor from the said C. P. to the said T. P. Wimberly for said half interest in said storehouse, then it is averred, that if there was any money paid by C. P. to T. P. Wimberly for said half interest in said storehouse, the money so paid was the money of H. T. Wimberly; that said C. P. Wimberly had no means of her own, and whatever money may have been paid by her to the said T. P. Wimberly for said interest in said house, was given to her by her husband, the said H. T. Wimberly; that there was no consideration for the gift, and the same was, as to complainant and the other creditors of said H. T. Wimberly, void and of no effect; and that the gifts of the money by said Wimberly to his wife to buy the stock in said compress company and the half interest in said storehouse, were made when the debts due by said H. T. Wimberly to complainant were in existence.

3. The original and amended bills were demurred to, and the demurrers were overruled.

The grounds of demurrer to the original bill, as insisted on, were, in substance, that the stock could not be subjected to debts not in existence when the transfer was made. The bill, as we take it, makes no such claim; and, moreover, it shows that debts of complainant were in existence at the time the alleged transfers were made.

The other ground is, that there is such a misjoinder of causes of action, as makes the bill multifarious. "It is a general rule in courts of equity, that a bill is not multifarious, which unites several matters distinct in themselves, but which together make up the complainant's equity and are necessary to complete relief." Stone v. Insurance Co., 52 Ala. 589, 592. To an ordinary creditors' bill, it is no objection, that a number of fraudulent grantees or donees are made parties defendant, although they claim different portions of the property by distinct conveyances. Unity of fraudulent design, when apparent, imparts to the suit singleness of object and purpose. Handley v. Heflin, 84 Ala. 600, 4 So. 725; Collins v. Stix, 96 Ala. 338, 11 So. 380; Williams v. Spragins, 102 Ala. 424, 15 So. 247. If it be true that several fraudulent grantees or donees of a debtor may be joined as defendants to a creditors' bill, who claim different parts of his property by separate gifts or conveyances, much more, as is the case here, may a single grantee or donee thereof, holding by different conveyances be proceeded against by a creditor, to subject the same to the payment of his debt.

In this case, the alleged fraudulent gifts or conveyances, not being to different persons, but to one person, and the object of the bill being to subject the property thus disposed of, to the payment of complainant's debts, against the grantor, there being, as is made to appear, unity of fraudulent design to put the property beyond the reach of creditors of the grantor, the bill was not subject to the charge of multifariousness.

4. Under our practice a bill may be filed in a double aspect, embracing alternate averments of relief, provided each aspect entitles complainant to substantially the same, and not to inconsistent and repugnant reliefs and different defenses. Adams v. Sayre, 70 Ala. 318; Hall v. Henderson, 114 Ala. 601, 21 So. 1020, 62 Am. St. Rep. 141. An amendment of a bill setting up an alternate ground of relief, is always proper, when the matter of amendment might have been stated in the alternative in the bill as originally filed. Winston v. Mitchell, 93 Ala. 554, 9 So. 551. The relief sought here by the amendments was the same in character, between the same parties, in reference to the same subject-matters as that sought in the original bill, and were subject to the same defenses. The amendments were entirely proper, and the demurrer to the bill as amended was properly overruled.

5. The complainant by clear and satisfactory proof, established its debts against the alleged fraudulent grantor, H. T. Wimberly, the larger part of which were due at the date of said alleged conveyances or gifts to his wife, and all of them at the date of the filing of the bill, and contracted anterior to said conveyances.

The answers of H. T. and C. P. Wimberly were the same in substance, as to the defense set up in them. It was shown that the debts were contracted at Greenville, Ala., in the name of H. T. Wimberly and H. T. Wimberly & Co. They each denied the alleged indebtedness of H. T. Wimberly to complainant; denied that said H. T. was ever in business in Greenville, or that any business was ever carried on there, in his name by his consent; denied each and every allegation of the original and amended bills, as to the stock of said compress company and the half interest in said Lightfoot storehouse having been purchased by said C. P. Wimberly with money furnished to her by her said...