75 Ala. 348 | Ala. | 1883
The bill is filed for the purpose of setting aside conveyances and transfers of property made by Edwin J. Russell to his four brothers, who are co-defendants, on the ground that they were made with the intent to hinder,
The bill, in our opinion, is not multifarious. It has long been the practice of courts of equity, in creditors’ bills of this character, to sanction the joining of parties defendant who have acquired different portions of the debtor’s property under ■separate and distinct conveyances, made with intent to defraud. The object and purpose of the suit is single, the satisfaction of the demands of the creditors from the property of the debtor, and all that can be said is, that different persons have, or claim to have, separate interests in distinct or independent questions connected with, or springing out of that common purpose.—Lehman v. Meyer, 67 Ala. 396, and cases cited; 1 Dan. Ch. Pr. (5th Ed.) 339, Note 1.; Halstead v. Shepard, 23 Ala. 558; The P. & M. Bank, v. Walker, 7 Ala. 926. The facts alleged in the bill impute to the defendants a common knowledge of the debtor’s fraudulent intent, and a common purpose pf participation in it, by mutual combination. It is no objection, in this aspect of the case, that the alleged fraudulent conveyances were made at different times.
Nor do we think it any ground of objection that a portion of the indebtedness due complainant from Edwin J. Russell consisted of a claim for which George R. Russell, one of the other defendants, was also liable in the capacity of a partner. The debt was a several, as well as a joint obligation, under the statute, and whether verbal or written, the members of the partnership could be sued upon it severally, or jointly, at the option of the complainant.—Hall v. Green, 69 Ala. 368; Code, 1876, § 2904. We construe the bill to claim no relief against the copartner, George R. Russell, based on this claim, except so far as it may constitute the complainant a creditor of the main defendant in the suit, Edwin J. Russell. It is not a case, therefore, of multifariousness originating in uniting a joint claim against several defendants with a separate claim against one defendant alone, with which the other defendants have no connection.—McIntosh v. Alexander, 16 Ala. 87.
The bill derives no part of its equity in its aspect as one for discovery. Such is not its frame or purpose. The only discovery sought is purely incidental, such as may be elicited by the interrogating part of the bill, which consists of a series of questions intended to obtain discovery in aid of the complainant’s case, and required to be directed to facts previously stated or charged. These interrogatories are chiefly designed to “ prevent misapprehension or evasion, by inquiring not only as to the
The statute provides that “ when a bill is filed for any other purpose than discovery only, the plaintiff may waive, in or upon the bill, the answer being made on the oath of the defendants, or either of them.” — Code, 1876, § 3762., While the more common practice is to do this in the usual foot-note required to be appended to the bill, it is often done in the interrogating part, and to this cause there seems to be no sound or even plausible objection. It is plainly authorized by the statute, and is not intended to be prohibited by the 13th Pule of Chancery Practice. — Code, 1876, p. 163.
The demurrers were properly overruled, and the decree of the chancellor is affirmed.
