38 Ala. 329 | Ala. | 1862
Isi-support of the complainants’ right to relief, three positions are taken. They are— first, that the mortgages described in the bill are fraudulent; secondly, that if not fraudulent, the complainants are entitled to a satisfaction of their judgment out of the mortgaged property, after!the discharge of the mortgages; and, lastly, that the bill may be regarded as a creditors’ bill, under which satisfaction of the complainants’ judgment out of certain property may be had.
It is certainly permissible fdn‘a complainant to ;aver! in > his bill, that either one or the other of two alternative • statements is true. Undoubtedly it is so when each of the statements entitles the party to the same relief. — Shields v. Barrow, 17 Howard, 130-144; Story’s Eq. Pl. § 254; Andrews v. McCoy, 8 Ala. 920; Thomason v. Smithsons, 7 Porter, 144; Simmons v. Williams, 27 Ala. 507 ; Strange v. Watson, 11 Ala. 324; Cornegay v. Caraway, 2 Dev. Eq. 405; Lloyd v. Brewster, 4 Paige, 537; Colton v. Ross, 2 Paige, 390. But the bill in this case does not contain such alternative statements. It asserts the invalidity of the mortgages on account of fraud, but does not contain a disjunctive averment of their validity. We do not decide that the rules of pleading would tolerate a bill with such conflicting alternative statements, entitling the party to reliefs diametrical in their character. We did not intend,
A test of the propriety of any particular relief, under the allegations of a bill, is to inquire whether, if the bill were confessed, the court, looking at the bill and the confession, could grant the relief. — Charles v. Dubose, 29 Ala. 367-372. Under that test, there could be no foreclosure of a mortgage, under a bill which merely declared it fraudulent. In the case of McCosker v. Brady, (1 Barb. Ch. R. 329,) a question precisely like the one before us arose. The complainant in that case alleged, that a will, under which the defendants claimed title to a part .of .the premises in controversy, was void, and prayed \that it might be annulled, or, in case the will should be decreed .to be valid, that the premises might be partitioned. The prayer for a partition was held inconsistent with the case made by the bill, and it was therefore denied. — See, also, Lloyd v. Brewster, supra.
Nor will it aid the complainants to concede farther to them, that the answers show a discharge of the mortgage since the commencement of the suit; for, if the complainants’ bill be a creditors’ bill, they can only subject property upon the idea of a liability subsisting when the suit was commenced. A decree can only be had, when the facts subsisting at the commencement of the suit make out a case for equitable cognizance, and those facts must be alleged in the bill. — Land v. Cowan, 19 Ala. 297.
It is contended, that the complainants, if not entitled to relief as creditors proceeding against specific property, may at least claim a decree as creditors proceeding upon the general allegation authorized by the act of January, 1844, as expounded in Brown & Dimmock v. Bates, 10 Ala. 432. But the same insuperable obstacle is in the way of sustaining this view. Under the allegations of the bill, all the debtor’s property was, at the commencement of the suit, covered by mortgages, which we decide were valid.
4. It is strenuously insisted, that the complainants may, under their bill, have the hires and income from the slaves, now held by Borden and Jones, appropriated to their judg
The complainants are not entitled to the relief last above stated, in despite of the mortgages, because they are averred in the bill, and are shown to be valid. They are not entitled to the relief of a foreclosure of the mortgage, and an appropriation of the excess to the payment of their judgment, because they say the mortgages are fraudulent. They are not entitled to the relief upon the ground that the mortgage debts have been satisfied out of the hires and income, for, if that fact exists, it occurred after the commencement of the suit.'
Affirmed.