Jordan v. Liggan

| Va. | Feb 10, 1898

Keith, P.,

delivered the opinion of the court.

Jordan and others, creditors of Charles'W. and Willis FT. Liggan, filed their bill in the Corporation Court of the city of Lynchburg attaching a deed made by the Liggans to J. Emory Hughes, trustee, to secure certain creditors therein named, alleging that it was made with intent to hinder, delay, and defraud the plaintiffs. The trustee and creditors secured in the deed were made parties defendant. The defendants filed a demurrer to the bill, and, tbe cause coming on to be heard, tbe demurrer was sustained, and tbe bill dismissed. Thereupon an appeal was applied for and obtained.

Tbe objection taken to tbe bill upon tbe part of tbe defendants in tbe court below is that it is multifarious. It is conceded that, in cases involving tbe question of fraud, a very great latitude is allowed in pleading; that circumstances however various may be set forth, and parties however numerous be impleaded in tbe same bill so long as one connected scheme of fraud is alleged.

Courts seek to discourage a multiplicity of suits and will not permit tbe objection of multifariousness to prevail where there is no liability to. injustice. See Yates v. Law, 86 Va. 123; Gaines v. Chew, 2 Howard 619.

It has been said that it was impossible for courts to lay down a general rule as to what constitutes multifariousness; that they are left to decide each case upon its own circumstances, governed only by a sound discretion. Belton v. Apperson, 26 Graft. 207.

“Courts in dealing with this question look particularly to convenience in tbe administration of justice, and if this is accomplished by the mode of proceeding adopted, tbe objection of multifariousness will not lie unless tbe course pursued is so injurious to one party as to make it inequitable to accomplish tbe general convenience at bis expense.” School Board v. Farish, 92 Va. 160.

We come now to apply these principles to the case before us.

The plaintiffs filed their bill, and, before any appearance on the part of tbe defendants, filed an amendment to it in tbe clerk’s office. There was much controversy at tbe bar as to whether this paper subsequently filed constituted “an amendment to tbe original bill,” or what is known as an “amended bill.” Were it necessary to decide this question it would present some difficulty, but, in tbe view we have taken of tbe case, tbe distinction becomes unimportant. ,

To the billas originally filed tbe only objection stated is that it is multifarious, because, after stating tbe principal ground of attack lipón the deed, which is that it confers upon the trustee a power inconsistent with his duty to the creditors secured, and adequate to the complete defeat of the trust, it proceeds as follows: “Your complainants further show unto the court that immediately prior to the assignment of the said grantors, the said grantors were engaged in a prosperous liquor business with one William Cotter, in which said business they were trading under the firm name of William Cotter & Company; that immediately preceding the assignment they sold their interest in this business to said Cotter for a large sum of money, the amount of which your complainants do not know, which sum of money, so realized, the said grantors did not apply to the payment of their debts, but, put the same out of the reach of your complainants. Your complainants further allege that in the second class there is secured to Yrilliam Cotter & Company the sum of $253.75, which said debt your complainants believe, and therefore charge, has no existence in fact; and there may be other debts preferred in said deed which do not exist.”

This quotation from the bill we understand as simply constituting an allegation that the debt secured to Cotter & Co. is fraudulent, and the narrative which leads up to this charge being a wholly unnecessary elaboration, may be treated as surplusage, and does not constitute multifariousness.

The paper filed as an “amendment to the bill,” or as an “amended bill,” as the case may be, contains the recital that since the institution of this suit the trustee in the deed of trust,, in order to avoid the appointment of a receiver and the destruction of his office as trustee, sold the business to one O. M. Sutton and to Mrs. M. L. Liggan, wife of W. TT. Liggan, who are now conducting the business under the name of the “Bivermont Furniture Manufacturing Company”; that very recently the complainants have been informed that for several months prior to the assignment of the Bivermont Furniture Co. said company sold a large quantity of goods for cash, and collected a large sum of money from the sale, which sum of money should have been an asset of tbe company to be used in tbe payment of its debts, yet, at the time tbe assignment was made there was no money in band, in bank, or in sight, or accounted for in any way, to be so applied; that tbe morning after tbe assignment W. ET. Liggan showed a roll of bills to various parties, which be at tbe time stated amounted to tbe sum of $3,000, and further stated that be held this sum for bis own purposes, and as it was cash in bis pocket bis creditors could not get at it; that it was probable that tbe said $3,000 so held by W. ET. Liggan, just succeeding bis assignment, is tbe money which was used by him for bis wife in tbe purchase of tbe said business and factory, which is now being conducted under tbe name of tbe “Rivermont Furniture Manufacturing Company.”

It is claimed by appellees that these allegations with respect to tbe dealing of the trustee with Sutton and Mrs. Liggan make tbe bill multifarious, because it involves tbe investigation of a transaction wholly separate and distinct from the deed of trust which is tbe subj'ect of attack in tbe bill as originally filed, and constitutes an independent fraud, in itself a complete cause' of action between parties different from those involved in tbe transaction as originally stated.

We do not so regard it. In order that a bill may be multifarious as presenting several causes of action, it is necessary ‘“not only that tbe different grounds of suit must be wholly distinct, but each ground must be sufficient as stated in tbe bill.” •Story’s Eq. PI. (8th Ed.), secs. 275-6.

As was said by Staples, J., in Snavely v. Harkrader, 29 Gratt. 126: “If tbe relief sought upon one ground, distinct and independent of tbe other, is such that a court of equity cannot grant, •either for want of j'urisdiction, or because of tbe form in which it is sought, this latter will be treated as a nullity; and tbe court may proceed to act upon that ground of suit stated in tbe bill which is well stated. In such a case the bill will not be declared multifarious, but tbe court will treat tbe bill as if it did not con-fain tbe allegations setting up tbe second ground of relief, because by itself no such case would be maintained.”

It can. hardly be contended that a case is made against Sntton and Mrs. Liggan in the quotation which we have given from the bill upon which relief against them could be decreed. Fraud must be alleged, as well as proven, and it will nor do to state it argumentatively. The charge must be direct as the proof must be clear. It is not sufficient to say that “it is probable that the said $3,000 so held by W. FT. Liggan is the money which was used by him in the purchase of the said business and manufactory.” That is language which suggests a suspicion, but does not constitute an averment upon which defendants would be required to take issue.

FTor do we think that the statement of the bill with reference to the sum secured to be paid to B. E. Hughes makes the bill multifarious. It may very well be that Mrs. Liggan was, as to that debt, the principal, and that W. FT. and Charles W. Liggan were the sureties, and, if paid by them or out of their property, that the trustee would be entitled to be subrogated to the rights of B. E. Hughes, and recover back the money thus paid for the benefit of the trust confided to him. As this constitutes but a part of the original transaction, it may with propriety be investigated in this suit.

We are of opinion that while the bill, taken ’as a whole, or treated as an original and an amended bill, cannot be commended as an example in pleading, its faults are not such as that a demurrer to it should have been sustained.

The decree of the Corporation Court must be reversed, and the cause remanded with leave to the defendants to answer.

Reversed.