Staton v. Rising

HEAD, J. Appeal from decretal order overruling demurrers to the bill. On August 15, 1888, G. D. Staton, being the owner thereof, conveyed by deed to his wife, N. A. Staton, lots 15 and 16 in block 206, in the city of Birmingham, Ala., for the consideration, recited in the deed, of $6,000; and by another deed, executed on the same day, he conveyed to her, lots 18 and 19, in block 38, in said city, for the recited consideration of $3,500, and the assumption by the grantee of an incumbrance on the lots, amounting to $4,000. On April 3d, or 4th, 1889, the said grantee, N. A. Staton, and her husband, said G. D. Staton, conveyed.the four lots, by deed, to R. W. Beason, for the recited consideration of $8,000. At the time of the conveyance to the wife, the complainant, Philip Rising, was a creditor of the grantor, G. D. Staton, [456] and'had been since March, 1887; and on April 29, 1889, he reduced his demand to a personal decree in chancery against the debtor, in the sum of $5,068.24, and had execution thereon which was returned “No property found.” On the 3d day of May, 1889, he perfected a judgment lien upon the property of the debtor by filing and having registered in the probate court of the proper county, a statement of his decree, in compliance with the statute. By sufficient averments of facts these several conveyances are shown by the bill to have been fraudulent and void as against the complainant; and he prays to condemn the lots to the payment of his decree. It appears from the bill that said lots 15 and 16 were held by G. D. Staton subject to a mortgage made by him to J. R. Rodgers and A. S. Andrews, which complainant alleges, upon information and belief, has been paid off and discharged, although the same has not been so marked on the record, where it is recorded, in the office of the judge of probate. It is also averred that said G. D. Staton had died; that he left no property subject to administration, and that no administrator of his estate has been appointed. His heirs are not made parties to the bill. The prayer of the bill contains the following : “Upon the final hearing orator prays that your Honor will ascertain whether or not the amount evidenced by the mortgage to J. R. Rodgers and A. S. Andrews has been paid, and in the event it has, dec¡ ee that the same be cancelled. If it appears that it has not been paid, your Honor will ascertain the amount due thereon and decree the foreclosure of the same and order a sale of said property therein described and an application of the proceeds thereof to the payment of said debt, and the balance to the payment of orator’s debt, or enough thereof to satisfy the same.” The bill also prays that the alleged fraudulent conveyance be set aside, and the lands condemned to sale for the payment of complainant’s decree, and for general relief. It is objected by demurrer that the bill is multifarious, in that it seeks to set aside fraudulent conveyances, and also to compel the foreclosure of a mortgage executed by .the fraudulent grantor to third parties. It. is enough to say, in answer to the objection, that it cannot properly be said that the bill is filed to compel the foreclosure of the mortgage. It alleges the execution of the mortgage, but, at the same time, avers, un [457] conditionally and without alternative, that it has been fully paid and discharged. The special prayer, therefore, copied above, asking a foreclosure of the mortgage, is without averment of fact to support it, and is manifestly inconsistent with the facts averred. No relief could be granted upon it, if, upon other principles, a creditor with a lien could, in equity, compel the foreclosure of a mortgage, held by another prior in time and right to his lien. We have held that no such relief is obtainable. — Bingham v. Vandegrift, 93 Ala. 283, and cases cited. The junior incumbrancer may redeem in such cases, upon proper allegations, and offer to do equity. This special prayer will, then, be treated as having no proper place in the cause, and will be disregarded. This done, the bill is a good one for the vacation of the alleged fraudulent conveyances, and condemnation of the land to the payment of complainant’s decree. Taking the bill to be true, as the demurrer admits, the mortgage debt has been paid ; but the legal title to the two lots the mortgage embraced still remains outstanding in the mortgagees, for which reason they were properly made parties. ' If, in point of fact, to be developed on answer, the mortgage debt, or any part thereof, íemains unpaid, the bill, is yet good, as to these lots, for the condemnation and sale of the equity of redemption therein acquired by the alleged fraudulent grantees by virtue of the conveyances. It is objected also that the heirs and personal representatives of the deceased grantor are not made parties. Clearly the heirs have no interest in the suit. Their ancestor divested himself of all title to the land by his conveyance to.his wife. The result of this suit cannot possibly affect them one way or the other. And we think the same is true as to the personal representative. He can have no possible interest in the land ; and the decree establishing the debt, which must form the basis of the relief complainant seeks, can, in .no wise, affect him or the personal assets of the estate in his hands. We have been referred to no authority which holds the presence of the personal representative, in a case like this, necessary, and we can see no reason why it should be. See Buffington v. Harvey, 95 U. S. 99. Affirmed.