Summary
In McClintock v. McEachin, 246 Ala. 412, 20 So.2d 711 (1945), the supreme court held that a judgment lien became dormant after ten (10) years from the date judgment was entered.
Summary of this case from In re SintzOpinion
4 Div. 357.
February 1, 1945.
Appeal from Circuit Court, Houston County; D.C. Halstead, Judge.
H. R. McClintock, of Dothan, for appellant.
Causes of action against the same defendant may be joined when they are of the same nature. Wilkinson v. Wright, 228 Ala. 243, 153 So. 204; McDougal v. Alabama G. S. R. Co., 210 Ala. 207, 97 So. 730; Ballenger v. Ballenger, 205 Ala. 595, 88 So. 826; Hitt Lbr. Co. v. Sherman, 189 Ala. 681, 66 So. 639; L. N. R. Co. v. Cofer, 110 Ala. 491, 18 So. 110. Bill to set aside conveyances in fraud of creditors is not rendered multifarious by alleging different grantees from same debtor or different items of property at different times. Puckett v. Russell, 234 Ala. 564, 176 So. 194; Green v. First Nat. Bank, 224 Ala. 47, 138 So. 550; Lambert v. Anderson, 224 Ala. 110, 139 So. 287. Within twenty years action upon judgment or decree of any court of this State or of the United States or any state or territory thereof must be commenced. Code 1940, Tit. 7, § 19. Under Code, Title 7, § 582, a judgment is presumed satisfied where more than ten years have elapsed since date of last execution, and burden of proving it not satisfied is upon party seeking to enforce it. Fleming v. Fowlkes Myatt Co., 204 Ala. 284, 85 So. 690. There is no conclusive presumption of payment of judgment short of twenty years. Within that period suit on it may be maintained or it may be revived. Statutory presumption of payment after ten years merely casts burden on plaintiff of proving that it has not been satisfied. Hays v. McCarty, 239 Ala. 400, 195 So. 241. Creditor without lien may file bill to discover or subject to payment of his debt any property which has been fraudulently transferred or conveyed by his debtor. Code, Title 7. § 897. A judgment creditor without lien is a creditor within meaning of § 897. Wooten v. Steele, 109 Ala. 563, 19 So. 972, 55 Am.St.Rep. 947; Cartwright v. Bamberger, 90 Ala. 405, 8 So. 264. Assignee of judgment may maintain suit in his own name where transfer is made on margin of record of judgment in court where rendered, attested by clerk. Code, Tit. 7, § 597.
J. T. Johnson, of Oneonta, and H. K. Martin, of Dothan, for appellees.
Joinder of two separate and distinct subject matters, not having any connection one with the other, renders a bill multifarious. Ford v. Borders, 200 Ala. 70, 75 So. 398; Altman v. Barrett, 234 Ala. 234, 174 So. 293; Harrison v. Stuart, 219 Ala. 405, 122 So. 623. The bill in this case, by the alleged transferee of a judgment against one of the respondents to set aside an alleged fraudulent conveyance of her property, a one-seventh interest in the land described, which also joins in the same suit a cause by complainant as alleged transferee of another judgment against the other respondent, to set aside another conveyance of her one-seventh interest in the land described, neither transaction having any connection with the other, is multifarious. Hargett v. Hovater, 244 Ala. 646, 15 So.2d 276; Birmingham Bar Ass'n v. Phillips Marsh, 239 Ala. 650, 196 So. 725. Not only must each respondent have a community of interest in the law and facts of the subject matter before the court but each party respondent must have an interest in the suit, or outcome of the suit, against the other party respondent. Measured by this test, the bill is multifarious. Alabama Butane Gas Co. v. Tarrant Land Co., 244 Ala. 638, 15 So.2d 105; Rowe v. Bonneau-Jeter Hardware Co., 245 Ala. 326, 16 So.2d 689. If ten years have elapsed from rendition of judgment without issue of execution, or since date of last execution, the judgment must be presumed satisfied, and burden is upon plaintiff to prove it not satisfied. Code, Tit. 7, § 582. Recording of judgment creates lien on property of defendant. Code, Tit. 7, § 584, and § 585 gives life to such lien for ten years, with proviso that if suit is filed within ten years but has not been completed, and lis pendens notice is filed, the lien may be enforced as if the ten year period had not elapsed. Complainant's bill does not bring him within the terms of said statutes, and his lien had expired when suit was filed. Revival by scire facias would not extend the judgment lien; it only revives the right to have execution issued. The judgments were presumptively satisfied. Richard v. Steiner Bros., 166 Ala. 353, 52 So. 200; Second Nat. Bank v. Allgood, 234 Ala. 654, 176 So. 363.
This is an appeal from a decree sustaining the demurrer to a bill in equity. The bill was filed by H. R. McClintock (appellant) to set aside two conveyances of real estate lying in Houston County, Alabama, to C. C. McEachin (one of appellees). Each deed sought to convey an undivided one-seventh interest in the same lands. One deed was made by Elvie Forrester Copeland (one of the appellees) and the other was made by Ethel Forrester Cherry (one of the appellees). The grantors acquired their respective interests in the proper by inheritance on November 7, 1943. Both deeds were executed on December 27, 1943, and recorded in the Probate Office of Houston County on December 28, 1943.
On October 25, 1933, John R. Vann, as Receiver of the Houston National Bank, obtained judgments in the District Court of the United States for the Southern Division of the Middle District of Alabama, one judgment being against Elvie Forrester Copeland and the other against Ethel Forrester Cherry. Each judgment was for $3441.33 and costs of $24.76. Certificates of both judgments were recorded in the Probate Office of Houston County on January 31, 1934. Complainant is now the owner of both judgments. The bill alleges that the amount of each judgment, with interest and costs, is due and unpaid and that proceedings are pending to revive the judgments.
C. C. McEachin, the grantee in the deeds, is the brother-in-law of both grantors. Each deed recites a consideration of $3000 paid by C. C. McEachin, receipt acknowledged. The bill alleges in substance that the consideration expressed in each deed is fictitious and simulated and that there was no consideration for either deed or that at best the consideration in each case was nominal. Each deed is alleged in substance to be void as against complainant, as a creditor of the grantor when the particular deed was executed.
The demurrer attacks the bill on the theory (1) that due to the dormancy of the judgments and the expiration, before the deeds were executed, of the lien of the judgments, the complainant is without right to set aside the deeds and (2) that the bill is multifarious. The first theory is not good, the second is good.
We think there is a misapprehension as to the position of the complainant. His judgments became dormant and presumptively satisfied on October 25, 1943, § 583, Title 7, Code of 1940. The liens created by recordation of the certificates of judgment expired on the same date, § 585, Title 7, Code of 1940. The deeds were executed thereafter. But the complainant's rights are rested neither on the claim that he is a judgment creditor nor on any lien that may have been connected with the judgments or recordation of certificates thereof. Since his judgments are dormant, he is in the position of a simple creditor without a lien. Perkins, Livingston Post v. Brierfield Iron Coal Co., 77 Ala. 403; Wooten et al. v. Steele et al., 109 Ala. 563, 19 So. 972, 55 Am.St.Rep. 947. As a simple creditor without a lien he can maintain his suit to set aside the deeds under § 897, Title 7, Code of 1940. The presumption of payment is no bar to the action. The bill alleges that the amount of the judgments, etc. are due and unpaid. In a similar situation this court said:
"It is also insisted as to the bill in any aspect that the claim or right is barred by limitations apparent on the face of it, and that after ten years the presumption is that the judgment has been paid.
"There is no conclusive presumption of payment short of twenty years. Patterson v. Weaver, 216 Ala. 686, 144 So. 301. Within that period a suit on the judgment may be either maintained (Section 8942, Code [Code 1940, Tit. 7, § 19]), or the judgment may be revived. Sections 7872, [Tit. 7, § 583] 7873, Code. The statutory presumption of payment after ten years (section 7871, Code [Code 1940, Tit. 7, § 582) casts the burden on plaintiff of proving that it is not satisfied. Second National Bank v. Allgood, 234 Ala. 654, 176 So. 363. The bill here alleges that it is unsatisfied to the extent of $10,000.00 principal.
"A creditor to maintain this suit in either aspect need not be a judgment creditor, — sections 7342, 7343, Code [Code 1940, Tit. 7, §§ 897, 898], * * *." Hays v. McCarty, 239 Ala. 400, 195 So. 241, 244.
Nor are the principles set forth in Richards et al. v. Steiner Bros., 166 Ala. 353, 52 So. 200, applicable here. Under the allegations of the bill C. C. McEachin is not entitled to claim as a bona fide purchaser, with rights superior to and free of the rights of complainant as an existing creditor. Under the allegations of the bill the deeds to him were without consideration, voluntary and constructively fraudulent. Moore v. Alton, 192 Ala. 261, 68 So. 326; Warley et al. v. Patterson, 237 Ala. 126, 185 So. 891. He cannot stand, under these allegations, in the position of a bona fide purchaser for value, as was the purchaser in Richards et al. v. Steiner Bros., supra. Webb v. Elyton Land Co., 105 Ala. 471, 18 So. 178; Craft v. Russell, 67 Ala. 9; Sherrod v. Hollywood Holding Corporation, 233 Ala. 557, 173 So. 33. Accordingly we conclude that the allegations of the bill are sufficient to warrant relief.
However, we consider the bill multifarious. The judgments are separate and independent liabilities against separate respondents. They are in no wise connected except that they are owned by one person. Any defense that one respondent might have to the judgment against herself would be personal to that particular respondent and of no interest or value to the other respondent. Elvie Forrester Copeland and Ethel Forrester Cherry each owned a separate interest in the property. There is nothing to show that either conveyance had any connection with the other. Each was a separate transaction and so far as the allegations of the bill are concerned, will stand or fall on its own facts and circumstances. We do not think that the issues of the case should be confused or perhaps prejudiced by combining in one suit separate and distinct causes of action wherein one respondent, interested in one cause of action, is unconcerned with the facts of the other. Birmingham Bar Ass'n v. Phillips Marsh et al., 239 Ala. 650, 196 So. 725; Harrison et al. v. Stuart, 219 Ala. 405, 122 So. 623; Alabama Butane Gas Co. et al. v. Tarrant Land Co., 244 Ala. 638, 15 So.2d 105; Ford v. Borders et al., 200 Ala. 70, 75 So. 398.
The court acted correctly in sustaining the demurrer to the bill. Since the time allowed for amendment has elapsed, the court will allow such further time as it may deem proper.
Affirmed.
GARDNER, C. J., and THOMAS and FOSTER, JJ., concur.