92 So. 643 | Ala. | 1922
The Bank of New Brockton, a domestic corporation, filed the bill in this cause to foreclose its lien, under section 3476 of the Code, on shares of its stockholders S. M. and C. J. Rowe. The averment is that C. J. Rowe, the owner of 2 shares, is indebted to the bank in a large sum, and S. M. Rowe, the owner of 10 shares, is surety for the obligation of C. J. Rowe. Bankruptcy proceedings were pending against the principal debtor, and the trustee of his estate is made party defendant. By amendment E. B. Peebles and Mercer Rowe are brought in as parties defendant upon an averment, in substance, that defendant S. M. Rowe, with the intent to injure, delay, or defraud his creditors, had executed to Peebles a mortgage purporting to secure a large indebtedness, averred to be simulated, and that foreclosure proceedings, concocted with the same intent, had been had, at which Mercer Rowe became the ostensible purchaser. The court overruled joint and separate demurrers, and the decree to that effect is assigned for error.
We shall first consider the contention that equity is without jurisdiction in the premises for that the statute creating the lien provides a remedy which is exclusive in the absence of other considerations importing equity. Section 4829 of the Code answers this contention. Its provision in substance is that statutory modes, provided in the Code for the enforcement of liens are cumulative merely, and any lien may be enforced as provided by statute, in equity, by attachment, or as otherwise provided. The purpose of this act was to meet the rule of old cases such as are cited in the brief for appellant. The analogy of the cases cited in the opinion of the trial court, stating the result of the statute, sustain the equity of the present bill. Bynum Mercantile Co. v. Bank,
One ground of demurrer is that the bill contains no averment that it is necessary to sell the stock of S. M. Rowe the surety nor any that complainant had given notice or made personal demand for payment or satisfaction. These objections, adopted from the language of section 3476, lie only in case of a pursuit of the statutory remedy of a sale marked by the absence of such preliminaries, as the frame of the statute sufficiently indicates.
In the absence of a contract to the contrary, the obligation of the surety, who guarantees payment, is the same as that of the principal; the surety may be sued immediately upon default of the principal and before any proceedings are had against the principal, and the bringing of the suit is demand enough. Abercrombie v. Knox,
The bill was not rendered multifarious by the amendment; nor did the amendment introduce a new cause of action. Mere complexity is not multifariousness. It is the complexity arising out of the joinder of unrelated subjects that equity refuses to countenance. It is a sufficient bond between different parts of the bill that each defendant has an interest in some of the matters involved, and they are connected with the others. The purpose of this bill is single; it is to collect complainant's debt out of equitable assets, and every ramification of the amended bill leads back to this single purpose. Allen v. Montgomery R. R. Co.,
There was no error in the court's decree.
Affirmed.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.