Moog v. Talcott

SOMEB.YILLE, J. In Lehman v. Meyer, 67 Ala. 396, we held a creditors’ bill demurrable, as being repugnant and inconsistent, which was framed in the double aspect of having a conveyance, executed by a debtor, declared, in the one alternative, fromdulent a/iid void, because made to hinder, delay or defraud the creditors of the grantor; and, in the other alternative, seeking to sustain the same conveyance as a general assignment, enuring equally to the benefit of all of his creditors. This decision expressly overruled the case of Crawford v. Kirksey, 50 Ala. 590, in which the opposite conclusion had been reached. The principle was recognized, as often before declared by this court, that a bill in equity may generally be framed in a double aspect, and will be sustained, in all eases, where each alternative averment would be the foundation for precisely the same relief, and the same defenses are applicable to each. Gordon’s Adm’r v. Ross, 63 Ala. 363; Micou v. Ashurst, 55 Ala. 607; Rives v. Walthall, 38 Ala. 329; City of Eufaula v. McNab, 67 Ala. 588. But the court further held, that the [212] two separate reliefs prayed for, in the dual aspects of the bill, were clearly repugnant and inconsistent; the complainants seeking, in the one alternative, to desbt'oy the validity of the conveyance, by having it adjudged an absolute nullity; and, in the other, to sustain it as valid and legal, under the provisions of the statute upholding it as a general assignment. The effect, in the one case, is to claim against the conveyance, and, in the other, to claim under it.—Code, 1876, § 2124; Rapier v. Gulf City Paper Co., 64 Ala. 342; Code, § 2126. We are of opinion that this conclusion is in entire harmony with the previous adjudications of this court, and that the case of Cra/w-ford v. Evrhsey, supra, was properly overruled. It is urged, however, in argument, that this being a general creditors' bill, the relief prayed is the same in both alternatives — the condemnation of the debtor’s property to the satisfaction of his debts. This is the same argument adopted in support of the conclusion reached in Crawford v. Kirksey, supra, the reasoning of which was condemned as unsound in Lehman v. Meyer, 67 Ala. 396, cited supra. The suggestion is based upon a misapprehension of the legal principle involved. There is one sense in which the relief prayed for, in every possible aspect of a bill, is remotely the same' — the eolleetion of the complainant's demand out of the defendants propjerty. But the rule under consideration contemplates rather the immediate legal relief prayed for, which is the foundation and source of this remote relief. One may, for example, reach the same result by assailing a decree against himself, seeking to set it aside on the ground of fraud, and by reviewing it for error appa/rent; yet it has been held that the two aspects united in the same bill would be repugnant and inconsistent.—Gordon's Adm'r v. Ross, 63 Ala. 363. So, for a like reason, a bill has been held demur-rable, which seeks, in one aspect, to have a mortgage cancelled, because executed to secure a debt founded on an alleged illegal consideration, and, in the other, to establish the mortgage and redeem the mortgaged premises.—Micou v. Ashurst, 55 Ala. 607. A like repugnancy was declared to exist in a prayer for the enforcement of a vendor's' lien as a valid obligation, and a proposed amendment to the bill praying for a rescission and cancellation of the contract of sale as being void for ultra vires. City of Eufaula v. McNab, 67 Ala. 589. The same principle was recognized in another case, where it was adjudged that the complainant could not seek to have a will declared void on the one hand; or, else, on the other, valid, and to have the lands devised by the will partitioned by decree of the court among those entitled.—McCooker v. Brady, 1 Barb. Ch. 329. These several adjudications are strong illustrations of the principle under discussion, and are closely analogous to the case in hand. [213] In the present case, not only are the alternative averments of the bill conflicting, and the disjunctive reliefs diametrically repugnant, but there is a manifest repugnancy even in the results of these reliefs. If the conveyance assailed is decreed a general assignment, thus being sustained in its legal validity, all the creditors of the grantor, whether parties to the bill or not, would be entitled to participate, pro rata, in the fruits of the litigation. It would, under the statute, “ enure to the benefit of all of the creditors of the grantor equally.”—Code of 1876, § 2126. If, on the other hand, the conveyance is declared absolutely void for fraud, the grantee would get no portion of his claim secured by it, unless there was a remaining surplus, but would forfeit his rights under the instrument because of his participation in the covinous transactions. — Bump on Fraud. Conv. 467, 470. So, too, in the latter case, those creditors are preferred who. through their superior diligence, may have obtained a prior lien by filing the first bill. If, in other words, the conveyance be void for fraud, those creditors of the debtor, who file separate bills, obtain a pi’eference regulated by the order of time in rvhich they commenced their suits — he being adjudged to be first in right who was fii'st in time.—Evans v. Welch, 63 Ala. 250; Hone v. Henriquez, 13 Wend. 240; Bump on Fraud. Conv. 535; 1 Brick. Dig. 655, §§ 217, 222. The test, in all such cases, is said to be, if a decree pro con-fesso shoixld be taken, could the court, looking merely at the statements of the bill and the confession, grant any certain relief to the complainant.—Rives v. Walthall, 38 Ala. 333; Charles v. Dubose, 29 Ala. 367. In such event, would it not be “mei’e matter of speculation and conjecture with the court, as to which of the titles should [in this case] be made the foundation for relief?”—Lehman v. Meyer, 67 Ala. 404. No chancellor could reasonably be compelled, in cases of this nature, to search the records of his own, and perhaps of other courts, in order to determine this question of relative priorities and of conflicting liens. The rules of certainty, governing our system of equity pleadings, require that these difficulties should be solved by a mere inspection of the face of the bill; just as we would determine the sufficiency of a demui'rer, or of a motion to dismiss for want of equity. So far as concerns the rule under discussion, therefore, we can discern no sound distinction in its proper application to general creditors’ bills, and such as are filed in the interest of particular creditors. The court, in our opinion, erred in overruling the demurrer to the bill; and the decree of the chancellor is reversed, and the cause remanded.