Opinion
6 Div. 317.
May 18, 1933.
Appeal from Circuit Court, Jefferson County; Amzi G. Barber, Judge.
J. C. Burton, of Birmingham, for appellants.
A bill in equity seeking relief against several respondents for separate and distinct transactions is subject to demurrer on the ground that it is multifarious. Rucker v. Tenn. C., I. R. Co., 176 Ala. 456, 58 So. 465; Hitt Lbr. Co. v. Cullman Prop. Co., 189 Ala. 13, 66 So. 720; Ford v. Borders, 200 Ala. 70, 75 So. 398; Hook v. First Nat. Bank, 206 Ala. 321, 89 So. 466. A bill to set aside a conveyance as in fraud of creditors should allege insolvency of defendants at the time of the commencement of the action. Morris v. Fidelity M. B. Co., 187 Ala. 262, 65 So. 810; State Bank v. Ellis, 30 Ala. 478; Coal City C. C. Co. v. Hazard Powder Co., 108 Ala. 218, 19 So. 392. In such a bill it is not sufficient that the bill contain mere general averments of fraud, but the facts constituting the mischief should be set forth. 27 C. J. 772. It must affirmatively appear from this bill, filed by a foreign corporation, that complainant has complied with the Constitution and status of this state before entering into contracts in this state which are the subject-matter of the bill; the making of which constitutes doing business in the state by complainant. Houston Canning Co. v. Virginia Can Co., 211 Ala. 232, 100 So. 104, 35 A.L.R. 912; Sullivan v. Vernon, 121 Ala. 393, 25 So. 600.
W. H. Woolverton, Wm. H. Ellis, and Murphy, Hanna, Woodall Lingbergh, all of Birmingham, for appellee.
A bill is not multifarious in seeking to set aside separate fraudulent conveyances of separate pieces of property to different grantees, and to effect the collection of a debt from the property actually belonging to the debtor. Code 1923, § 6526; Wilson v. First Nat. Bank, 209 Ala. 70, 95 So. 340; Truss v. Miller, 116 Ala. 494, 22 So. 863; McCarty v. Robinson, 222 Ala. 55, 130 So. 680. It is not necessary to aver the insolvency of a fraudulent debtor grantor to justify a bill to set aside a voluntary fraudulent conveyance. Crisp v. First Nat. Bank, 224 Ala. 72, 139 So. 213; McCrory v. Donald, 192 Ala. 312, 68 So. 306; O'Neil v. Birmingham Brewing Co., 101 Ala. 383, 13 So. 576. In such a bill, general averments of facts from which, unexplained, a conclusion of fraud arises, are sufficient; it is not necessary to aver all the matters of evidence. Gassenheimer v. Kellogg, 121 Ala. 109, 26 So. 29. The defense that a foreign corporation has not complied with the Constitution and statutes of this state must be raised by a plea; failure of complainant foreign corporation to aver such compliance is not a demurrable defect. People's Bank v. Moore, 201 Ala. 411, 78 So. 789.
The bill in this case was filed by one alleging that it was an existing creditor of the Birmingham Property Company as indorser of certain notes, and sought a discovery of its assets and to subject to the satisfaction of its debt property which had been fraudulently transferred by the debtor to various grantees. Section 7342, Code. It alleged the fact of several such distinct transfers to different grantees, all of which are sought to be vacated and prayed that the property be subjected to the debt.
It has frequently been held by this court that for that reason, it is not multifarious since the bill has a single object — that of the satisfaction of the debt. Lambert v. Anderson, 224 Ala. 110, 139 So. 287, and cases cited; McCarty v. Robinson, 222 Ala. 55, 130 So. 680; Spear v. Virginia-Carolina Chem. Corp., 225 Ala. 17, 142 So. 33.
By a long line of authorities it has been held that an existing creditor may have set aside a voluntary conveyance by his debtor, made after the creation of the debt, regardless of the intent and financial standing or insolvency of the parties. Bibb v. Freeman, 59 Ala. 612; Beall v. Lehman Durr Co., 110 Ala. 446, 18 So. 230; Jenkins v. Lockard's Adm'r, 66 Ala. 377; Fearn v. Ward, 65 Ala. 33; Anderson v. Anderson, 64 Ala. 403; McCrory v. Donald, 192 Ala. 312, 68 So. 306; Crisp v. First National Bank of Birmingham, 224 Ala. 72, 139 So. 213; Cortner v. Anderson, Clayton Co., 225 Ala. 575, 144 So. 443.
It is equally well settled that the existence of a contingent liability to complainant, such as a suretyship or indorsement, creates a debt as thus defined, before the liability becomes fixed or mature. Cortner v. Anderson Clayton Co., supra, and cases cited.
The bill alleges that complainant is a foreign corporation, but does not allege a compliance by it with the Constitution and statutes of this state fixing the terms and conditions on which it may do business in Alabama.
A bill by such a corporation must make such allegations if it shows by express averment or proper presumption that it was doing business in this state in the transaction on which relief is predicated. Muller Mfg. Co. v. First National Bank, 176 Ala. 229, 57 So. 762; Houston Canning Co. v. Virginia Can Co., 211 Ala. 232, 100 So. 104, 35 A.L.R. 912; Spear v. Virginia-Carolina Chem. Corporation, supra.
The bill of complaint alleges that complainant is the owner and holder in due course of the notes mentioned. It does not allege that it transacted the business of their purchase in Alabama, and, therefore, that complainant was liable to a compliance with such Constitution and statutes of Alabama, in connection with that transaction. When this does not appear on the face of the bill, the question cannot be raised by demurrer, but "the objection could be taken only by answer or plea." Christian v. American Freehold Land Mortgage Co., 89 Ala. 198, 200, 7 So. 427.
We have discussed the grounds of demurrer which counsel for appellant have argued in their brief, and agree with the circuit court that none of them are well taken.
Affirmed.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.