Waller v. Shannon

53 Miss. 500

• Court: Mississippi Supreme Court
• Decided: October 15, 1876
• Status: Published

Opinion

Chalmers, J.,

delivered the opinion of the court.

A bill filed by a judgment creditor to vacate fraudulent conveyances and subject the realty to the lien of his judgment was demurred to, on the ground that it was sworn to by the solicitor instead of by the complainant in person. There is no law which requires such a bill to be sworn to at all, and hence the verification by affidavit of the wrong person could make no difference. If it was a bill to which an affidavit was necessary, it could be made by the solicitor, under § 687 of the Code; but in that event the affidavit must be special, setting forth whether the statements made on information and belief relate to the information and belief of the complainant or of the solicitor, and those things, stated as being within the knowledge of the affiant, must be within the knowledge of the solicitor. Even when so drawn it will not overthrow the denials of the answer, unless supported by two witnesses, or one witness and corroborating circumstances. Jacks v. Bridewell, 51 Miss. 882.

It was also objected by the demurrant that the bill was multifarious.

The allegations showed that on the same day the insolvent debtor conveyed two separate parcels of land, one to his father-in-law and the other to his son, both of whom after holding for a short time conveyed to the wife of the insolvent grantor. One piece of the land was thereafter conveyed by the wife to a sister-in-law, who it was alleged had full notice of the contemplated fraud.

The bill sought to subject both pieces of the land, and made all the vendors and vendees defendants. The sister-in-law demurred for multifariousness, because she was compelled to litigate about one piece of land, with which she had no concern, claiming that separate bills should have been filed as to each tract. The demurrer is not well taken. “ It is not indispensable that all the parties should have an interest in all the matters contained in the suit: it will be sufficient if each party has an interest in some matters in the suit, and they are connected with the others.” Story Eq. PI. § 271 a.

If the complainant claims under one title, he may join several defendants who claim separate parcels of the estate, under separate and distinct purchases. McGowan v. McGowan, 48 Miss. 553; Gaines v. Chew, 2 Plow. (U. S.) 602.

The decree overruling the demurrer is affirmed, and the defendants ordered to answer in sixty days.