Opinion
6 Div. 809.
November 29, 1923.
Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster, Judge.
Jones, Jones Van de Graff, of Tuscaloosa, for appellant.
Counsel insist upon error in the decree, and cite Code 1907, § 3967; 8 C. J. 1301; Poorman v. Mills, 35 Cal. 118, 95 Am. Dec. 90; Newton v. Principal, 82 Mich. 271, 46 N.W. 234; Henderson Mercantile Co. v. First Nat. Bank, 100 Tex. 344, 99 S.W. 850; Mobile Montgomery Ry. v. Gilmer, 85 Ala. 422, 5 So. 138; Edwards v. Parker, 88 Ala. 356, 6 So. 684; Parker v. Edwards, 85 Ala. 246, 4 So. 612.
W. Moody and Foster, Verner Rice, all of Tuscaloosa, for appellees.
No brief reached the Reporter.
This appeal is from the decree of the trial court sustaining the demurrer of the respondents, People's Savings Bank of Saginaw, Mich., and City Bank of Stockton, to the bill of complaint as last amended. In such a case we must, of course, be governed entirely by the allegations of the bill in determining the merits of the demurrer, and cannot look to the facts disclosed by the answers of the respondents, which, indeed, are improperly included in the record.
As we understand the bill of complaint, it is one in the nature of a creditor's bill showing a claim for damages against the respondents the Daniel Hayes Company and Brainerd Bros. Pickrell, because of their fraudulent procurement, respectively, of two negotiable promissory notes from complainant, which, by reason of their negotiation for value in due course to the Tuscaloosa banks, complainant was bound to pay, and did pay. The Tuscaloosa banks are made parties respondent, and as to them the proceeding is, in effect, an equitable garnishment merely, to intercept the payment of the certificates of deposit issued by them, and appropriate their proceeds to complainant's claim against the fraud-feasors to whom they were originally issued.
The theory of the original bill was that these certificates of deposit had been sold and transferred by the payees thereon to other parties, named as respondents, whose claim to them was invalid as against complainant, because they were parties to the fraud-feasor's scheme to defraud complainant, or at least were purchasers with notice of the fraud.
As to the respondent the People's Savings Bank, the bill contains no allegation that it even claims to own the Merchants' Bank Trust Company's certificate, the allegation being that "one or all" of three specified banks, including the People's Savings Bank, claim to own, etc.; and the last amendment alleges that it is not the owner, and was not when the bill was filed.
As to the respondent the City Bank of Stockton, the allegation is that it "claims to own or have some interest" in the City National Bank's certificate; and the last amendment alleges that it is not the owner, and was not when the bill was filed. There is no allegation that either of these respondents has, or has ever had, the possession of the certificate which it is alleged or supposed to claim, and no allegation of fraud or collusion on their part.
It is clear therefore that, so far as these two respondents are concerned, the bill as last amended is a complete departure from the theory of a creditor's bill to subject property fraudulently conveyed by a debtor. In the absence of that equity, it must exhibit some other equity to entitle the complainant to relief against them, and no other equity is apparent.
If the purpose of the amended bill is simply to require these respondents to come in and propound their respective claims to the certificates of deposit, or their proceeds (and we can discern no other purpose as the bill is now framed), the remedy by garnishment of the Tuscaloosa banks in a suit at law against the fraud-feasors would seem to be adequate and complete under section 4328 of the Code. It may be that equity could be injected into the bill by an allegation that these respondent banks have a collusive possession of the certificates of deposit, or are purchasers with notice of an intention by the holders to defraud complainant by placing the certificates out of his reach. But the bill makes no such case, and we do not and cannot decide that question.
Certainly a court of equity will not disturb the possession of these certificates by these banks unless it is alleged and shown to be wrongful. Nor, in the absence of a wrongful possession, will a court of equity assume jurisdiction merely to quiet hostile claims. In its present form the bill is without equity as to these respondents, and their demurrers were properly sustained.
The question of the burden of proving the transfer and ownership of the certificates vel non, discussed in the brief of counsel for appellant, cannot arise on demurrer to the bill, and we therefore refrain from its discussion.
The decree sustaining the demurrers to the bill of complaint will be affirmed.
Affirmed.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.