Henry v. Tennessee Live Stock Co.

MAYFIELD, J. The bill as originally filed was to declare void and annul certain mortgages, contracts, or conveyances purporting to he executed in the name of the complainant corporation, by one Grizzell, to the defendants, Sam Henry & Son, and to Joe L. Henry, because said Grizzell had no authority to execute such documents for the corporation, and because there was no consideration to support them, aud that they were obtained by undue influence, etc., and to have the said grantees, mortgagees, etc., account to the corporation for the property thereby acquired and that they be declared held as trustees ex malificio of such property, and required to account for the value of that part disposed of by them. A demurrer was sustained to the bill, because it did not offer to do equity by paying the debts intended to be secured by the mortgages. The bill was then amended by adding four paragraphs thereto, from 21 to 24, inclusive, which sought to have these mortgages, contracts, conveyances, etc., declared a general assignment for the benefit of all the creditors of the corporation, and to have the corporation declared insolvent, and all its assets declared a trust fund, to be marshaled and administered by the court in payment of the debts due from the corporation. The bill as amended is clearly and certainly multifarious. In one aspect it alleges that the respondents are creditors of the corporation and in another that they are not. In one aspect it alleges that the mortgages, contracts, and conveyances are valid, and in another that they are void. The bill as amended shows neither the right nor necessity of the corporation to maintain a bill to declare itself to be insolvent and to ask the court to administer its assets. The bill is therefore clearly multifarious, even under section 3095 of the Code as amended. While inconsistent, the reliefs grow partly [379] out of the same contract or transaction and relate partly to the same property, it is not between the same parties ; but the necessary parties are different in the two cases. The creditors of the corporation are necessary parties to the bill in one aspect, and unnecessary parties to it in the other. A bill in equity may be filed in different aspects, but' each aspect must make a good bill, and if either aspect is bad then the whole is bad, and subject to demurrer upon that ground. — 3 Mayfield’s Digest, p. 286; Curran v. Olmstead, 101 Ala. 692, 14 South. 398; Mountain v. Whitman, 103 Ala. 630, 16 South. 15; Beddow v. Sheppard, 118 Ala. 474, 23 South. 662; Taylor v. Dwyer, 131 Ala. 91, 32 South. 509. Each alternative of a bill should entitle the complainant to the same relief, in kind, if not in degree, so that, if the bill be confessed the court, in decreeing the relief on one state of facts, should also respond and grant the relief appropriate to the other alternative state of facts. — 3 Mayfield’s Digest, p. 285. The amendment made a new cause of action. It changed the rights and the character of the demands sought to be enforced, and varied materially the relief sought. — Glass v. Glass, 76 Ala. 368; Ward v. Patton, 75 Ala. 207; Scott v. Ware, 64 Ala. 174. Eepugnancy and inconsistency between the original bill and the amendment render the amended bill bad. The amendment must not present a new case from that orisrinallv presented. — 3 Mayfield’s Digest, p. 297, §§ 2265, 2206. It follows that the demurrers should have been sustained to the amended bill. The decree of the chancellor is reversed, and the cause remanded. Eeversed and remanded. Dowdell, C. J., and Simpson, and McClellan, JJ., concur.