106 Ala. 298 | Ala. | 1894
— The facts of the case are sufficiently stated in the opinion delivered on a former appeal and reported in 102 Ala. 516. On the remandment of the cause, the bill was amended as suggested in that opinion. The present appeal is prosecuted from the ruling of the court, sustaining demurrers to the bill on the ground of a misjoinder of parties defendant, and for multifariousness. The grounds of demurrer were not well taken, and should have been overruled. While one purpose of the mortgage was for the indemnity of the sureties of W. R. L>. Smith, administrator of Charles A. Smith, the complainants are also made beneficiaries by its very terms, and have an equitable right to enforce the mortgage in their own interest. The real object of the bill is to foreclose the mortgage. It shows that the respondents levied ■attachments upon the mortgaged property, subsequent to its execution and with notice thereof. It avers that all the personal property amounting in value to five or six thousand dollars was sold, at the instance of these attaching creditors, and the proceeds of sale converted by them to their own use. If the averments of .the bill be true, the money thus received and held, in equity, is held in trust, for the beneficiaries of the mortgage. The fact that one attaching creditor received one amount on his debt, and another, received a different amount, and that one of these attaching creditors has no interest in that received by the other, does not render the bill multifarious, nor show a misjoinder of parties defendant. The purpose of the bill is single, the relief is the same, and that is to reach the property, or its proceeds, conveyed in the mortgage for the benefit of complainants. It is argued that the bill shows that the attaching creditors proceeded separately and independently of each other, and for this reason, they can not be joined. The bill in this respect is favorable to the respondents, for if it charged a conspiracy between the attaching creditors, and the charge was made good by proof, each attaching creditor would be responsible for tire entire amount realized, whereas by the averments as made, each creditor is called to account for such part only as he may have received. — Stover v. Herrington, 7 Ala. 142 ; Larkins v. Biddle, 21 Ala. 252 ; Randle v. Boyd, 73 Ala. 282 ; Bolman v. Lohman, 74 Ala. 507.
The sheriff Evans may not be an indispensable party,
After satisfying whatever judgment or decree may bo rendered against the administrator on final settlement of his administration it may be that the surplus if any will belong to the attaching creditors. It is for this reason also necessary that a:i account be stated against him and his liability be ascertained by a decree on final settlement. The prayer that the administration be removed into the chancery court, was proper. No other court can administer such full and speedy relief, and protect the rights and equities of all the parties. The heirs and distributees have an equitable right to remove the administration into a court of equity. — Bromberg v. Bates, 98 Ala. 621. We can not anticipate what the answers of the respondents may disclose, or the evidence may establish. The record is be'fore us on demurrer to the bill, and the rules of practice and the equities of complainant are not difficult of application.
Reversed and remanded.
