Comstock v. Rayford

9 Miss. 423 | Miss. | 1843

Mr. Justice Clayton

delivered the opinion of the court.

This was a bill filed by two distinct sets of complainants, Com-stock, and Robbins, Painter & Co, all of whom are non-residents, against one Reesin R. Chilton, who is also a non-resident of this State, and Thomas Rayford, who resides in this State. It was filed to subject certain slaves in the bill described, alledged to be the property of Chilton, and in the hands of Rayford, the resident defendant, to the payment of debts due the complainants in separate rights. These debts were ripened into judgments in Alabama, but there is no judgment upon them in this State. The bill farther alledges,- that after the rendition of the judgments in Alabama, and after the judgment lien had attached, the slaves in question were brought by Chilton to this State, and placed in the hands of Rayford, to be kept for him. The slaves are seven in number, to five of which it is said Rayford makes • no claim, but sets up claim to two, under a sale which the bill charges to be colorable, and not for valuable consideration, and that he has never paid any thing for them. An attachment was obtained to stay the effects in the hands of Rayford, the resident defendant.

To this bill a demurrer Avas filed, Avhich was sustained by the ■vice chancellor, and the bill dismissed, because the court had ■no jurisdiction, and because the attachment was improperly awarded. From this decree the case is brought to this court ior revision.

We Avill proceed to consider the several grounds taken in support of the decree, in a brief of the counsel for the appellees, which* is marked by very considerable research and ability,

The first reason relied on is, that the bill is multifarious, and joins distinct matters in separate rights. There is no doubt that this objection, when it properly applies to a bill, is fatal; but it is not ahvays easy to determine when a bill is or is not liable to the objection. The difficulty is inherent in the nature of the rule itself. It appears to be well settled, as a modification of the rule, that unconnected parties, having a common interest centering in the point in issue in the cause, may unite in the same bill. This is allowed to prevent multiplicity of suits, an evil quite as much to be avoided as multifariousness in the same suit. Brinkerhoff v. Brown, 6 Johns. Ch. 2 Anstruther, 469. 4 Cowen, 697. That great master of equity pleading, Lord Redsdale, thus laid down the rule: “ Where there is a general right claimed by the bill, and covering the whole case, it will not be regarded as multifarious, though the defendants have separate and distinct rights.” Whaley v. Dawson, 2 Sch. & Lef. 367. 1 Ath. 282. In the case before us, the complainants are creditors of the same party, seeking to subject the same fund belonging to the same person. There is then a connected interest in the same point; the uniting in the suit produces no confusion or complexity in the defence, and it seems to prevent multiplicity of suits. We think, therefore, this objection cannot be sustained.

We adopt this conclusion the more readily, because under the statute in Virginia, from which ours appears to be exactly copied, it is the uniform practice to allow no priority, but to distribute the funds ratably. This is done on the elementary principle, that equality is equity. At some stage of the proceedings, the claims of the creditors have to be considered in connection; and we see no reason why it should not be done before decree, as well as afterwards. See Tate’s Dig. 33, n. We think it will be proper to give the same construction and effect to our statute, unless some one of the creditors has a lien prior to that growing out of the proceeding, in which event such lien would not be divested.

It is next insisted that the complainants have no judgments in this State; that they are mere creditors at large, and that without judgment they cannot invoke the aid of a court of equity, to set aside a conveyance for fraud. We shall lay out of consideration the fact, that the complainants had obtained judgments in Alabama, and shall not attempt to say what weight they are entitled to. We do this because we believe that the statute under which this proceeding is had, fully authorizes any creditor, without judgment, who can bring himself within its provisions, to file his bill and obtain relief. See How. & Hutch. 520. The common law rule was no doubt such as the counsel for the appellee contends that it was. But under statutes in every respect like ours, courts of the very highest grade and respectability, have sustained proceedings by creditors, who had obtained no judgments at law. Gibson v. White, 3 Mun. 94. Wilson v. Koontz, 7 Cranch, 202. Kelso v. Blackburn, 3 Leigh, 300. Indeed, the very end and object of the statute would be frustrated, if a previous judgment at law in this State were required, since if the party had a judgment he might proceed to lay his execution on the property at once, or proceed by process of garnishment against the debtor. It was to provide another and additional remedy that the statute was passed, and we can only give effect to it by permitting creditors without judgment to have the benefit of its provisions.

We are referred to the case of Gasget & Co. v. Scott et al., 9 Yerger, 246, to show that this bill cannot be sustained even under the statute. That case arose and was decided upon the act of assembly of Tennessee, passed in 1832; by comparing that act as set out in the opinion of the court with ours, which is to be found in H. & H. p. 250, § 63, it will be found that they scarcely possess a single feature in common. So fully convinced was the legislature of Tennessee of the necessity and propriety of such a law as ours, that they, in 1836, the same year in which that decision was made, passed a law with provisions very closely resembling ours, but extending the remedy still farther in several important particulars. Since the passage of that act, it would scarcely be doubted that the bill would lie. Acts of 1836, p. 143.

But this bill is not filed alone, with a view to set aside a fraudulent conveyance, even if that be one of its objects, which is not certain. The bill charges that five of the negroes were holden by Rayford for Chilton, and that the other two, if purchased, had not been paid for. A decree may then be made for the specific delivery of those held in trust, and the payment of the money due for the others, without any reference to the question of fraud. The demurrer admits the truth of these charges, and thus affords ground of jurisdiction, even if it could not be entertained on the principles just laid down. We believe, however, that under the statute, the bill may be sustained upon either or both grounds.

It is next insisted that when both parlies are non-residents, the court has no jurisdiction, and they cannot call upon the tribunals of this State to settle their disputes. This position upon the law, independent of statutory enactments in this State, may be correct, though it is not necessary for us to inquire into that point. But its application is not apparent, because in this, and all similar proceedings, there are at least two parties defendants, one of whom must reside in this State, arid the other be an absentee. The principle, then, if it exists in the utmost latitude, does not apply; for the contest is not between non-residents, but between a non-resident plaintiff, and an absent and a home defendant.

The statute is in its terms too plain to be doubtful; yet authority may be found to warrant our construction. The statute is an exact copy of one which has existed in Virginia since 1744, and their courts have uniformly held that a non-resident complainant might proceed under it, against a non-resident debtor, provided there was also a resident defendant. Williamson v. Bowie, 6 Mun. 176. 3 Leigh, 306. 3 Mun. 94. The same construction has been placed upon the act by the supreme court of the United States, in reference to the District of Columbia. 7 Cranch, 202. Kentucky has the same, or a very similar act. Their court, in placing a construction upon it, rises this explicit language: “The proceeding against defendants who may be out of the country, lies as well for those who are not residents of this State, as for those who are, and as well against those who never were, as against those who were or have been.” 3 Marshall, 266.

It is insisted, lastly, that a court or judge has no right, at the time of the filing of the bill, to direct an attachment to issue. Upon this point we have felt some difficulty, but after a careful examination of the statute, we believe the position is correct. By the practice in the State from which we borrowed the statute, a subpoena in chancery, indorsed by the clerk, “ that it is to stop the debts and effects of the absent defendant, in the hands of the defendant within the State, tc> satisfy a debt due from the absentee to the complainant,” when served, operates as an attachment or garnishment, and restrains any transfer, by the home defendant. If he afterwards'puts the property or effects out of his hands, he renders himself liable. 6 Mon. 176. Kennedy v. Brent, 6 Cra. 187. But when the home defendant has been served with process, and at the return time an affidavit is made as to the absence of the other defendant, the court may then make an order for the safe keeping of the effects, and require surety for their production to answer the decree, or may direct them to be delivered to the complainant upon his giving surety for the return, as the court may direct. From the issuance of the process till the return term ,of the court, the complainant has only a remedy against the home defendant, if he makes way with the property or effects; but at that time the court may require surety of such defendant, or make such other order as it may deem just. The order discharging the attachment was therefore correct; but, at the same time, the court should have made a farther order to insure the delivery of the property to answer the final decree.

Before a final decree, the court must be satisfied that the complainant has established his claim against the absent defendant; a decree must then be entered therefor. If the resident defendant by his answer denies an indebtedness, or claims the property—or denies having property of the absentee—the court must proceed to decide upon the facts, as in case" of other disputed facts, and decree accordingly.

The order of the Vice Chancellor, in sustaining the demurrer, and dismissing the bill, will be reversed, and the cause remanded for further proceedings, in consonance with the principles herein laid down. The order discharging the attachment is affirmed, but the court below should make such further order as may be necessary to preserve the fund during the pendency of the suit.

We do not mean to express any opinion, which would prejudice the right of a party to obtain an injunction, to prevent the transfer or removal of the property upon a proper case, at the time of the bill filed.

Decree reversed, with costs.