Seals v. Pheiffer & Co., 77 Ala. 278

Seals v. Pheiffer & Co.

77 Ala. 278 | Ala. | 1884

CLOPTON, J.

The courts have generally recognized the impracticability of establishing any positive, definite or inflexible rule, by which to determine the question of multifariousness. Much discretion is necessarily left with the chancellor in deciding on the circumstances of each case, —not an arbitrary discretion, but to be governed by settled principles of equity pleading. The court endeavors, to adopt such course as “will best promote the due administration of justice, without multiplying unnecessary litigation on the one hand, or drawing suitors into needless and oppressive expenses on the other.” The rule most generally applied is, that the bill will be held multifarious, where different claims are united in the same bill, there being no common ligatpent between them or material parts, and the case of each defendant being separate and distinct from the other defendants. — Kennedy v. Kennedy, 2 Ala. 571; Meachem v. Williams, 9 Ala. 842; Waller v. Taylor, 42 Ala. 297.

The amended bill'seeks to vacate as fraudulent a conveyance of real estate made by S. J. Seals to his wife, and to subject the property to the payment of complainants’ debts, and also *282to, compel Weldon, to whom S. <1.. Seals executed an assignment for the benefit of his creditors subsequently to the conveyance to his wife, to make settlement, to remove him, and to appoint a receiver of the assets in his hands as such assignee. Ry reference to the bill and .amendment, .it' is apparent, that, although the complainants assert an equitable claim against both these defendants, the claims are. entirely different, and tljat .the assignee.has.np interest in, nor connection, with the property,conveyed.to Mrs. Seals, and that Mrs. .Seals.'has no interest in.nor .connection with the property..embraced in the assignment, or. .the assignment itself. The case .of each defendant is-separate and distinct from, that of the other.. .The mpon .of' these different claims in -one bill can not be maintained on the,ground.o.f-avoiding a multiplicity of suits, as-not more than- two. suits are required to. settle both claims. The, demurrer. .for multifariousness .should have beep sustained. Abernathy v. Bankhead, 71 Ala. 190.

As the,claim'against Weldon as assignee.does not appear to have beep pressed, but..to have been waived' or abandoned, and as no decree was made affecting his rights, .we-probably would not have considered overruling the demurrer a reversible error, .if the decree were borrect in .all other, respects.

2. In Seals v. Robinson & Go., at the last term (75 Ala.), the conveyance to Mrs. Seals from her husband was considered by this court,on substantially the same facts contained in this record, and was' then declared .fraudulent as against his subsequent creditors. We find no reason to depart.from the decision then made.

'3., Mrs., S.eals, however, sets up another title to a portion of the.-property. -.It appears that a part of the real estate conveyed to. her was subsequently-sold under executions having a paramount lien, a,part of which was purchased by. Holloway, and a. part by her, at the sheriff’s sale. When the property .was aliened.to her, she. took-the estate .incumbered with, this charge. . The .consummation of the.sale, by the delivery of .the sheriff’s, deed, vested in the purchasers the estate of the defendant in execution, subject to levy and. sale. The. title of .the purchasers had relation to the origin o.f tfie lien, and overrides the conveyance to Mrs. Seals. Conceding that the conveyance is fraudulent,-she, had the right to purchase at the sheriff’s sale; and if her purchase is bona fide, she acquired a valid .title. The fraud of the first conveyance does not taint and v.itiate a subsequent purchase in good faith. All that was left to the creditors of her husband, was the naked statutory right of redemption.

4. The right to redeem real estate, sold by the sheriff under execution, being derived from and dependent on the statute, *283cannot b'e exercised by any person, other than the defendant in execution,'or a judgment creditor': and the 'right' of a judgment creditor to redeem is not complete, .and .can not be eiu forced in equity; unless there has been an an.técedent .éompliance with all the statutory requirements, or an excuse-for noncompliance without fault or neglect on his part. — Thomason v. Scales, 12 Ala. 312 Spoor v. Phillips, 27 Ala. 193 ; Searcy v. Oates, 68 Ala. 111. The-Chancery Court is' without power or jurisdiction to confer 'the right on a simple-contract'creditor.

The complainants, being only simple-contract creditors, can assert no claim against the property sold by the 'sheriff, other than by an 'attack qn the-purchase as fraudul'érií. '"This is the extent of the right, given by the statute, to á Creditor-without a'lien. The court did not find the purchase by’ Mrs.' Seals at the execution sale''fraudulent, but treated and recognized-it :hs valid, by decreeing that complainants might redeem. When the court ascertained the' validity ‘of' the purchase' agkihstr complainants, its power to dispose of the property-'ended,'and nothing remained but to dismiss'the bill as to' it. The court was without jurisdiction to divest Mrs. Seals or Holloway of title; an'd'vest it in complainants, by mode'of redemption. For this ferror, the'decr'ee must, be'reversed.

He versed and 'remanded.