Seals v. Pheiffer & Co., 81 Ala. 518

Seals v. Pheiffer & Co.

81 Ala. 518 | Ala. | 1886

SOMERVILLE, J.

— The bill, as originally framed, was filed for the double purpose of assailing for fraud two conveyances made by one S. J. Seals, deceased — the one a deed of gift, conveying certain lands to his wife, the appellant; and the other a general assignment, made to a trustee for the benefit of named creditors. The bill being held to be multifarious by reason of uniting two separate and distinct matters in the same suit, it was amended by striking out all that portion relating to the assignment. If the case had rested here, the complainants, as creditors of S. J. Seals’ estate, would certainly have been entitled to the relief claimed, on proof of the allegations of the bill. — Seals v. Robinson, 75 Ala. 363; Seals v. Pheiffer, 77 Ala. 278.

The answer of the defendant, Mrs. Seals, however, disclosed the existence in her hands of a sheriff’s deed, which, if valid, conferred on her a title paramount to the equity of the complainants. The bill was thereupon again amended so as to allege the execution and delivery of this deed by the sheriff, and the complainants, recognizing its validity, offered to redeem the land — a right to which this court held, on appeal, they were not entitled, being, as they were, simple contract creditors only. — Seats v. Pheiffer, supra.

The judgment being reversed on this appeal, and the cause remanded, another amendment was made to the bill, by striking out the offer to redeem, and inserting an averment of facts by which the sheriff’s deed was attacked for fraud.

It is here objected that the chancellor erred in allowing this amendment, because it conflicted with the former amendment which admitted the validity of the sheriff’s deed. This, in our opinion, is no sufficient objection to it. The *521first amendment may or may not have been improperly allowed, inasmuch as it destroyed the case made by the original bill. However that may be, striking it out has obviated any tenable objection to it. By this process of amendment the bill was reduced to its original shape and purpose, as a creditors’ bill assailing a deed of gift made by a debtor to his wife. The last amendment was perfectly consistent with the bill, although repugnant to the expunged amendment. The bill, in its present shape, attacks for fraud both the deed to the wife and the sheriff’s deed, the latter being alleged to have been made upon a consideration paid by the debtor and not by his wife, which fact, if true, rendered the title acquired by her one held in trust for the complainant and other creditors of the deceased husband. The bill was, in no wise, rendered multifarious by uniting these two matters in the same suit.

The other assignments of error are without merit.

Affirmed.