Almond v. Wilson

Staples, J., delivered the opinion of the court. This is a bill in equity to subject to the lien of the appellee’s judgment his debtor’s estate alleged to have been fraudulently conveyed to various persons, all of whom are made defendants. There is no charge of combination and confederacy among these alienees, and the objection is made that the bill is multifarious in uniting several defendants having no privity or connection with each other. Although a plaintiff cannot demand several matters of different natures against several defendants; a demurrer will not lie even though the defendants be unconnected with each other, if they have a common interest centering in the point in issue in the cause. 2 Maddox Chy. 294. Thus in Mayor v. Pilkington, 1 Atk. 282, it was held that a bill to quiet the plaintiff in a right of fishery might be brought against several defendants although there was no privity between them and the plaintiff, -and they claimed distinct rights. The bill was sustained for the sake of peace and to prevent a multiplicity of suits. In Virginia it is common practice for a judgment creditor to unite in one bill any number of purchasers claiming different parcels of land by separate and distinct alienations. When the bill is against fraudulent alienees the matter in litigation is the fraud charged in the management and disposition of the debtor’s property, in which charge all the defendants are interested, though in different degrees and proportions. As was said by Lord Cottingham in Campbell v. Macky, 1 Myl. & Craig. 603 : “ The courts, in dealing with the question of multifariousness, .seem to have considered what was convenient in the particular circumstances rather than to lay down any general rule on the subject.” It has been well said if all the parties to a fraudulent transaction cannot be called to account In one suit, it is in the power of a dishonest debtor by a dis [624] tribution of Ms property in minute portions among bis relations and friends, to defraud Ms own creditors and set them at defiance with impunity. The expense and delay of separate suits will render their prosecution more than useless for all purposes of indemnity and relief. If the creditor is required to file a separate bill against each alienee, it will be productive of all the mischief and oppression attending a multiplicity of suits. He may obtain satisfaction from some of the alienees, thus rendering a prosecution of the suits against the others unnecessary and improper. If he should happen to err on the other side and .sue only part, he may bring in persons against whom no charge can be supported as to whom the bill will be dismissed with costs, and after years of fruitless litigation the creditor must commence anew his pursuit of property, which has been in the meantime wasted or destroyed, with all the attending embarrassment resulting from the death of witnesses and the loss of testimony. On the other hand the inconvenience of uniting all the alienees in one suit will be comparatively trivial, for the court may adapt its decrees to the proofs against each and apportion the costs as may be just and expedient. This view is fully sustained by the authorities. Bump on Fraudulent Conveyances, p. 637, and cases there cited; Fellows v. Fellows, 4 Cowen, 682 ; Brinkerhoff v. Brown, 6 John. Ch. R. 139 ; Jones’ Ex’or v. Clark, 25 Gratt. 642; Boyden v. Lancaster, 2 Patton & Heath, 198. For these reasons we are of the opinion the demurrer was properly overruled. We are further of opinion, that the bill substantially charges a fraudulent combination between the appellant and David Firebaugh to hinder and delay the creditors of the latter in the collection of their debts. Where the facts stated show the fraudulent act and intent, it is a sufficient averment of fraud, although the bill does not state that the act was fraudulent. The charge in the [625] present bill, with respect to the sale of the property and the execution of the pretended lease, unmistakably indicate the grounds upon which the appellee proceeded. This was perfectly understood by the parties and the counsel in the court below. All the proofs taken, and all the proceedings had, were mainly with reference to the issue thus presented and passed upon in the circuit court. We are, therefore, of opinion this assignment of error is not well taken. We are further of opinion, that the circuit court very properly directed the three issues mentioned in the proceedings. The evidence relating to the matters in controversy was of a very conflicting character, involving, to a considerable extent, the credibility of some of the witnesses as well as their capacity and means of observation. The commissioner to whom the whole matter was first referred, reported against the claim of the appellant. That report did not in so many words impute actual fraud to the appellant, but such was the necessary result from the finding of the commissioner. For if the appellant suppressed the truth with respect to the payments of the purchase money for the land; if these payments were not made by him, but by Firebaugh, as reported by the commissioner, the presumption of a fraudulent collusion is overwhelming. The counsel for the appellant so understood it; for in their exceptions to that report they say: “ It is too improbable for belief, that men combining for the purpose of fraud should confide it to others they scarcely knew with no injunction of secrecy, knowing full well it would be repeated, and when the consummation of the fraud depended upon its being kept a secret and. remaining unknown to the world.” In concluding these exceptions the learned counsel, in order to avoid the effect of the commissioner’s report, suggest that an issue out of chancery would be the most proper means of a correct solution of the issues in this controversy. The learned judge of the circuit court at once adopted [626] tie suggestion, directed tie issues, and gave tie appellant tie benefit of a learing before tie very tribunal le lad requested. And now tie action of tie court is made the ground of exception and error upon wlicl a reversal of tie decree is gravely asked in tlis court. An issue out of chancery except in cases of contested wills is a mere incident to tie suit. Its object is to satisfy tie conscience of the clancellor in a doubtful case. If le is not satisfied witl tie verdict le may set it aside and grant a new trial, or le may proceed to decide tie cause without tie intervention of another jury. Lamberts v. Cooper's Ex'or, 29 Gratt. 64. Ho injury can result to tie defendant certainly in awarding it, unless it be a case in wlicl tie bill ouglt to be dismissed at tie learing. But where tie defendant himself concedes there is sucl a conflict of testimony as to call for a jury tie court ouglt to feel less difficulty in directing it. In tlis case we lave tie report of tie commissioner, tie” verdict of tie jury and the opinion of tie clancellor, all concurring, each one of whom was confronted witl tie witnesses and lad tie fullest opportunity of testing their accuracy, credibility and sources and means of information, under tie test of a public cross-examination. Under sucl circumstances it would be an unusual exercise of appellate jurisdiction for ibis court to reverse tie decee of the circuit court. Sucl a course would be in violation of tie practice and rule of tlis court from tie foundation of tie government. Tie cases on tlis subject are numerous, and are perfectly familiar to the profession. We are further of opinion that tie circuit court committed no error in decreeing a sale of tie whole tract of land to satisfy tie appellee’s judgments. Tie amount paid by Firebaugl to tie appellant as by tie verdict is more than sufficient to discharge tie appellee’s lien. Tie jury laving found tie arrangement between 'tie appellant and Fire [627] baugh actually fraudulent, all idea of a resulting trust is excluded. Under such circumstances, if the appellant has made the payments claimed by his counsel, he has no just claim to participate even pro tanto with the appellees in the proceeds of the land. No right can be deduced from a fraudulent act. The law does not so far countenance fraudulent contracts as to protect the perpetrator to the extent of his investment. Bump on F. Conveyances, 595; Williamson’s Ex’or v. Goodwyn, 9 Gratt. 503; Baltimore and Ohio Railroad Company v. Soutter, 13 Wall. 517; Henderson v. Hunton and als. 26 Gratt. 934; 2 Minor Inst. 609. We are, therefore, of opinion that the decree of the circuit court should be affirmed. Decree Affirmed.