Burke v. Josiah Morris & Co.

121 Ala. 126

• Court: Supreme Court of Alabama
• Decided: November 15, 1898
• Status: Published

Opinion

SHARPE, J.

— Unquestionably this bill contains equity under section 814 of the Code which authorizes a judgment creditor Avhose execution has been returned unsatisfied to go into chancery to compel the discovery of any property belonging to the debtor or held in trust for him. The motion to dismiss the bill for want of equity was therefore properly overruled.'

So far as it seeks a discovery of legal assets belonging to the defendant the bill is insufficient for lack of verification by oath.—Lawson v. Warren, 89 Ala. 585; Montgomery & Fla. R. R. Co. v. McKenzie, 85 Ala. 546; Sweetzer, Pembroke & Co. v. Buchanan, 94 Ala. 574. Such insufficiency, ho wever, does not extend to the whole bill.

The bill alleges that the property conveyed by Burke to the defendant Scott and Landsdell respectively as well as that in which the legal title has passed to the heirs of Elizabeth Burke'is held in trust for Burke so that his interest therein is only equitable. As to such interests the chancery court had jurisdiction originally as well as now under the statute for the purpose of subjecting them to a judgment whereon legal remedies had been exhausted.—Brown v. Bates, 10 Ala. 432; Martin v. Carter, 90 Ala. 96; Floyd v. Floyd, 77 Ala. 353. When discovery is sought as merely incident to relief in matters of ordinary equitable cognizance the bill need not be sworn to.—Dinsmore v. Crossman, 53 Maine 441.

' Independent of the discovery which the complainants seek in other matters they are entitled to maintain the bill for relief a,nd for discovery respecting the several interests so alleged to be held in trust for Burke and the demurrer for want’of verification being to'the bill as a whole does not reach the defect which exists' in its áspect as a‘ Bill for discovery of legal assets. A demurrer for such cause to a bill as an entirety when the bill is both for relief and for discovery and when it is sufficient for relief is properly overruled.—Beall v. Lehman, Durr & Co., 110 Ala. 446; Tillman v. Thomas, 87 Ala. 321; George v. Cent. R. R. & Banking Co., 101 Ala. 608; Story’s Eq. Jur., § 443; Livingston v. Story, 9 Peters, 632; Story’s Eq. Plead., § 548; Metler v. Metler, 4 C. E. Green, 457.

For like reason the ground of demurrer assigned to paragraph four upon insufficient allegations of fraud is bad since fraud is not necessary to uphold the equity referred to and need not be alleged in a bill filed for its enforcement.—Brown v. Bates, 10 Ala. 432.

The object of the bill is single, being the subjection of the property of Burke to the satisfaction of complainant’s judgment, and the relief if granted must be substantially the same as to any portion of such property whether held by the debtor or in trust for him by another or by several, and in such case the fact that it is held by different persons under separate conveyances or that the relief is sought upon different theories does not render the bill multifarious.—Lehman v. Meyer, 67 Ala. 396 Gouse v. Columbia Powder Co., 33 Atl. Rep. (N. J.), 297, s. c. N. J. Eq., 297.

No interest of the McDuffie estate or heirs is sought to be partitioned, divested, sold or otherwise affected under the bill and the alleged fact of their joint interest with Burke in lands does not make it necessary that such heirs or the personal representatives of the estate be made parties to the suit.

In the absence as parties of the heirs of Elizabeth Burke no decree can be rendered divesting them of the title to or affecting their interest in the lands descended to them; but the bill seeks discovery as to their identity and if discovered they may be made parties and so brought before the court that a decree may be had respecting their then interests. — Code, § 814. The bill may be imperfect as one for such discovery in failing to show that Burke can make discovery of those' heirs or it may be otherwise defective but such questions are not raised by the demurrer assigned to the bill as a whole upon the ground that those heirs are not made parties or by any ground stated in the demurrer. When a bill seeks discovery of persons interested, a demurrer for want of those persons as parties will not hold. — 1 Daniel Chan. Pr., 619; Bay State Iron Co. v. Goodall, 39 N. H., 223, 75 Am. Dec., 219.

There was no error in the decree of the city court and it will be here affirmed at appellants’ cost.