Wilkinson v. Dobbie

WALLACE, District Judge. So far as this motion is predicated upon the alleged fraudulent or preferential transfer of the vessel, the complainants should not prevail upon the facts as they appear upon the hearing. An injunction will not be granted, or a receiver appointed, where, upon the. hearing of the motion, it is not apparent that the ultimate determination of the suit in favor of the complainants is reasonably probable. The defendants fully meet and deny all the allegations of the bill as to this branch of the case, and support their denial by affidavits and exhibits which strongly corroborate it. Upon the argument, reliance was mainly placed upon the ground that the complainants and Thomas Dobbie are joint owners of the vessel, between whom irreconcilable differences exist, of such character as to justify equitable interference and appropriate preliminary relief. The affidavits upon the part of the defendants show, that Thomas Dobbie and the complainants are joint owners of the vessel; but, objections fatal to any relief to the complainants upon this ground arise upon their bill. The bill does not aver that the complainants and Thomas Dobbie are such joint owners, or that the complainants have any interest except such as exists because the transfer by Page was fraudulent. It does aver, that, at and prior to the 22d of April, 1873. the bankrupts were the owners of the vessel, and that, at a subsequent time specified, a half interest was transferred, which Thomas Dobbie now claims to own, thereby raising the inference that the other half was not transferred and became the property of the complainants. As a question of evidence, the conclusion would be legitimate, upon the rule that a state of facts once shown to exist is presumed to continue until the contrary is shown. But this rule does not obtain in construing pleadings. Pacts must be specifically stated, and conclusions upon inference or argument are not tolerated. The hypothetical- averment of irreconcilable differences between the parties, which exist “in case it should be held and decided by the court that Thomas Dobbie has an interest in said vessel,” does not aid the pleading. The court will not find, or seek to find, any interest which is not claimed to exist by the bill. No relief can be decreed finally except such as conforms to the case made by the bill as well as by the proofs — secundum al-legata et probata — and. as none can be granted finally, none should be granted preliminarily, upon this ground. On the other hand, if the bill sufficiently averred facts showing that Thomas Dobbie and the complainants are joint owners, and that such differences exist as to require a receiver to be appointed and a sale to be ordered, then such aver-ments would render the bill multifarious and demurrable, and for this reason the motion should be denied. It is not permissible for a complainant to unite in his bill two inconsistent causes for equitable relief. An action to set aside a transfer as fraudulent, in which the court is asked to adjudge the defendant's title to the vessel void, and one where the transfer is alleged to be valid and the complainant claims relief on the theory of a subsisting joint interest with the defendant by reason of the transfer, proceed on entirely different grounds, and are utterly repugnant to each [1257] oilier. Both theories cannot be true on any hypothesis of fact, or by any fiction of law. Analogous cases are those in which it was attempted to unite a cause of action for a forfeiture of a lease, and an injunction, on the theory that the lease was still subsisting; a cause of action to set aside a contract for fraud; or, if valid, to enforce its specific performance; a claim to recover purchase money in arrear upon a contract, and for a forfeiture of the contract, in all of which the causes of action were held to be inconsistent. Even a defendant cannot avail himself, by answer, of two defences which are so inconsistent with each other that, if the matters constituting one defence are truly stated, the matters upon which the other defence is attempted to be based must necessarily be untrue in point of fact. Hopper v. Hopper, 11 Paige, 46; 1 Barb. Ch. Prac. (2d Ed.) 41, note. In this case, upon the theory of a fraudulent transfer, the bankrupts, Sallie Dobbie and Thomas Dobbie are necessary parties, while, upon the other theory, none of the defendants would be proper parties but Thomas Dobbie. A bill may be framed with a double aspect, and alternative relief be demanded, but no relief can be demanded which is not consisteut with a state of facts conceded in the bill. Where the complainant is ignorant of the facts, he may allege his ignorance, call for a discovery, and frame his prayer so as to obtain such relief as it may appear he is entitled to; or where, upon the facts stated, he is uncertain as to the relief to which he is entitled, he may ask for alternative relief. These are the limitations which apply to a bill with a double aspect. Lloyd v. Brewster, 4 Paige, 537. It can hardly be contended that the bill in this ease is within them. The complainants having so framed their bill as in effect to deny the existence of any state of facts inconsistent with a fraudulent transfer of the vessel and a title void in law. they must stand or fall upon the issue they thus have tendered. The motion is, therefore, denied, with costs.