Durr v. Hanover National Bank

ANDERSON, J. The amended hill is in the alterna,-tive, and it may seek inconsistent relief; hut it relates -to the same subject-matter, and section 3095 of the Code of 1907 would he meaningless if it did not apply .to a case like the present one. Said section reads as follows: “Multifariousness. — Unless taken by demurrer, objection to a bill because of multifariousness must not be entertained. A bill is not .multifarious which seeks alternative or inconsistent relief growing out of the same ■subject-matter or founded on the same contract or transaction, or relating to the same property between the ■same parties.” This statute is a radical innovation on equity pleading, and may lead to no little embarrassment and confusion in the rendition of decrees under bills seeking inconsistent alternative relief, especially where there is a decree pro confesso^ But it is in the Code, is in plain and unambiguous language, and we cannot amend or repeal same, hut must follow it in passing upon a demurrer to a bill. The bill, however, in the case at bar, is so worded or framed — that is, the prayer of same — that it primarily [264] seeks an enforcement of the agreement, which in effect satisfies and merges the mortgage into the deed, and the alternative relief of a foreclosure is only asked in the event the chancery court, should ascertain that the agreement is not binding or cannot be enforced. Under the prayer of the amended bill, the relief sought is, first, the enforcement of the agreement, and a foreclosure of the mortgage is sought only in case the agreement cannot be enforced. If the agreement can be enforced, there will be no need for a strict foreclosure of the mortgage; and if the agreement was not made, or is nonenforceable, then the mortgage is in full force and effect, and can be foreclosed. The complainants elect to enforce the agreement, and are only entitled to the alternative relief in case they fail to establish and enforce the said agreement. The subject-matter of each alternative of the amended bill is the same, and it matters not that Meyer Greil, the beneficial owner, in part, of the debt, was not a party to the original bill. It is also probable that much confusion can be avoided as to section 3095 by the frame of the prayer for alternative relief, as was done in the present case. Moreover, independent of the statute above considered, the agreement was made while the cause was pending, related thereto, and the chancery court had the inherent power to. enforce same by an amendment, supplemental bill, or perhaps in other ways. The decree of the chancery court is affirmed. Affirmed. McClellan, Mayfield, S'AYRE, and Evans, JJ., concur.