Boutwell v. Vandiver & Co. , 123 Ala. 634 ( 1898 )

SHARPE, J.

By the allegations of this bill it appears that complainants were judgment creditors of the defendant P. F. Boutwell, having within a year and after the return of fieri facias unsatisfied sued ^>ut a second execution and had it levied upon a fourth interest in certain real estate belonging to his debtor Boutwell. That long previous thereto a note with mortgage security upon the same property had been executed by Boutwell to one Davis, that Boutwell has paid this note and mortgage, and “has had the same transferred to his wife (Mary Boutwell) for the purpose of hindering, delaying and defrauding the complainants in collecting their said judgment by a sale of said property,” and that. Mary Boutwell has advertised the property for sale under the power expressed in the mortgage. It prays that the sale may be enjoined and the mortgage can-celled, and also that if anything'is found due on the mortgage that defendants be decreed to pay it; and that upon their failure to do so the property be sold and the proceeds applied first to the mortgage and second to the judgment.

The defendants demurred separately to the whole bill, and those demurrers respectively are divided into four parts; hut each demurrer in each of its parts assigns the single ground of multifariousness.

To render a bill inxiltifarious as to subject matters there must be different grounds'of suit alleged and each ground must be sufficient to sustain a bill. — 14 Ency. PI. & Pr. 197. The prayer must also be looked to in testing the character of the bill; but the prayer alone not supportéd by averments, though it be for alternative or different or inconsistent'kinds of relief, does not make the bill multifarious.—Florence Gas &c. Co. v. Hanby, 101 Ala. 15; McCarthy v. McCarthy, 74 Ala. 546; Rives Battle & Co. v. Walthall’s Ext’rs, 38 Ala. 329; Yarborough’s Admr. v. Avant, 66 Ala. 526; 14 Ency. Pl. & Pr. 204.

The bill does not make a case for relief as from a transfer of property by P. P. Boutwell to hinder, delay or defraud complainant as a creditor. For that purpose unless the conveyance be purely voluntary it is necessary to show participation in the wrongful intent on the part of the grante—Governor v. Campbell, 17 Ala. 566; Stover v. Herrington, 7 Ala. 142; Anderson v. Hooks, 9 Ala. 704. And the facts from which the fraud arose must be shown; a mere general allegation that the transfer is made to hinder, delay and defraud creditors being insufficient.—Jones v. Massey, 79 Ala. 370; Flewellen v. Crane, 58 Ala. 627.

Such facts are not here shown. For all that appears the transfer of the mortgage to Mrs. Boutwell may have been before its alleged payment and she may have bought it for value and without any wrong intent and even prior to the existence of complainant’s debt. The allegation that she “is utterly insolvent and without means to have purchased said mortgage” does not show that at the time of the transfer she did not have or obtain money wherewith to make the purchase.

However, a fraudulent use of the mortgage is here alleged in that it has been paid notwithstanding which fact Mrs. Boutwell as transferee is proceeding to effect a sale of the property under the power expressed in the mortgage.

Under our statute payment of the mortgage debt divests the title passing by the mortgage and vests it in the mortgagor. Thereafter he cannot come into equity to redeem, but it has been held that because the payment rests in parol leaviug the title apparently outstanding by the mortgage, the mortgagor may in equity have it cancelled as a cloud upon his title.—Kelly v. Martin, 107 Ala. 479.

For a like reason the mortgage, though paid, is still a menace to complainants’ lien acquired by the issiíe and levy of their execution; and especially in view of the threatened sale thereunder, it may seriously depreciate the price which might otherwise be obtained at execution sale.

It is established that a creditor having a lien by execution may resort to equity for the removal of obstacles fraudulently employed to defeat an execution and which would prevent a sale at value thereunder.—Planters & Mer. Bank v. Walker, 1 Ala. 926; Dargan v. Waring, 11 Ala. 988; 3 Pom. Eq. § 1415.

Such is the jurisdiction invoked by this bill. The appropriate remedy is by a cancellation of the mortgage in aid of a specific lien rested by the levy upon the property covered by the mortgage and which complainants have the right to pursue.

The bill is not filed in a double aspect, there being no facts averred alternatively or otherwise upon which to base relief other than the cancellation of the mortgage. Prayers for relief having no bases in averments of fact, may be disregarded.—Rives, Battle & Co. v. Walthall’s Extrs., supra.

For the reasons stated neither the demurrers to the whole bill nor that directed to a part upon the assumption that a fraudulent transfer of property was attempted to be shown, are well assigned.

The remaining demurrer is by Mary Boutwell alone and is dirested to the fifth and sixth sections of the bill. Section six is a mere statement of legal conclusions as to what relief should be granted and section five contains no averment of fact except that Mrs. Boutwell is insolvent and without means to have purchased or paid the mortgage and that the property is more than sufficient to discharge any unpaid balance on it. Those facts are immaterial to the case made by the bill and may be subject to exception or motion to strike; but the demurrer segregating them from other parts of the pleading presents no issue of law for the court to determine, and there was no error in overruling it.

The decree appealed from will be affirmed at appellants cost.

Affirmed.