Barnard v. Davis , 54 Ala. 565 ( 1875 )

STONE, J.'

In Poor v. Carleton, 3 Sumner, 79, Mr. Justice Story lays down a rule for the admission of affidavits on a motion to dissolve an injunction on the denials of the answer, which is rather broader in some of its terms than the current of authorities will warrant. To leave it purely a matter of discretion with the chancellor whether or not he will hear ex parte affidavits in every case tried before him, is to declare no rule at all. The tendency of such practice would be to invite the experiment in every case where the practitioner thought he could strengthen his case by such affidavits. A question so important in practice, and of such frequent presentation, should, if possible, have a solution which will tend to uniformity of administration. Still, we find it difficult to express a rule which will infallibly inform the practitioner when he may or may not introduce such affidavits.

In the case of Long & Long v. Brown, 4 Ala. 631-2, this court said: “ On a motion to dissolve an injunction, affidavits cannot be received, either to support or contradict the answer, with the single exception of waste, where the injury would be irreparable.”

That great equity judge, Chancellor Kent, after stating that the general rule is against their admission, and that the instances in which they are admitted are exceptional, adds : “ They have been admitted in cases of waste, and in cases analogous resting on the 'same principle, and where irreparable mischief might ensue; and (he adds) I am aware that partnership cases have been brought within this rule.” Eastburn v. Kirk, 1 Johns. Ch. 445.

The case of Strathmore v. Bowes, 2 Bro. C. C. 88, referred to by Chancellor Kent in the case supra, was one of waste. In a note to that case, it is said that “ upon applications to continue or dissolve injunctions to stay waste, or acts in the nature of waste, though the court does not permit affidavits to be read in support of the plaintiff’s equity, yet, when the waste sworn to is denied, proof of it by affidavit will be admitted. . . . Upon similar principles the court has permitted the reading of affidavits in a case of partnership, though with' great caution, and only when it has clearly appeared that one partner, by acts of extreme misconduct, is bringing the case within the principle of irreparable mischief. But this has' been confined to affidavits in support of the allegations of mismanagement, &c., not in support of the title.”

In the case of Poor v. Carleton, supra, Mr. Justice Story,, speaking of the admissibility of the affidavits offered, says “ that they are admissible I cannot doubt, for they are merely to collateral matters, not touched’by or contradictory to the answers. . -. . Without doubt the defendants are at liberty to repel such affidavits by counter affidavits to the same points, for otherwise they might be compromitted by statements which they would have no opportunity to answer.” It is further said, in the same opinion, that “there is another qualification of the doctrine, in cases of irreparable mischief, and that is, that though the original affidavits may be read as to other facts contradicted by the answer, they cannot be read in support of- the title of the plaintiff, which is contradicted by the answer.” Mr. Story expresses his disapprobation of this last proposition, but we do not concur with him in that.

In High on Injunctions, § 1005, it is said: “ Upon a motion to dissolve, on the coming in of the answer, complainant will not usually be allowed to file additional affidavits, either in support of his bill, or for the purpose of contradicting the answer.' Some exceptions to the rule are, however, recognized by the authorities, and where the effect of a dissolution would be that the parties would not remain in statu quo upon the final hearing, and when, as in cases of waste, serious and irreparable mischief would ensue from the delay, the strictness of the rule may be relaxed.”

We. hold that where the answer clearly and explicitly denies the plaintiff’s title, the right in him, yjhich is the foundation of the relief he prays, then ex parte affidavits should not be received to contradict or overturn such denials in the answer. With this limitation, affidavits are receivable against the denials and averments of the answer, in cases of waste, of nuisance, of infringement of patent rights, and in cases to dissolve and settle partnerships and other joint adventures, where extreme mismanagement is charged against the defendant partner or joint adventurer. Under the general designation, waste, we include all analagous cases resting on like principle. And, we may add, in all cases where, under these rules, the complainant, is entitled to introduce affidavits, the defendant may introduce counter affidavits. We do not declare these rules as controlling absolutely all cases that may arise, but as declaration of principles for the solution of questions that1 may be presented. They somewhat enlarge the rule declared in the dictum found in Long v. Brown, supra.

Under the rules above declared, the case made by the pleadings in this cause is not one of irreparable mischief, or one in which affidavits contradictory of the answer should have been received.

When an injunction obtained under section 3428 of the Bevised Code is dissolved, the complainant is required to give a refunding bond under section 3437 Bevised Code. The mischief resulting from such dissolution cannot be irreparable, and therefore affidavits should not be allowed on motions to dissolve injunctions obtained under that section.

The present amended bill and injunction do not fall within the provisions of sections 3428 and 3437 of the Bevised Code. Those sections are intended and framed to meet the wants of defendants in judgments, who seek to relieve themselves from the payment thereof by force of some defense of equitable cognizance. Success in such a suit, is a discharge of the supposed debt or recovery evidenced by the judgment. Hence, a refunding bond, “ conditioned to refund the money and interest, he (the plaintiff,) may collect on the judgment, if tbe same is on tbe final hearing of tbe bill perpetually enjoined,” would, in sucb case, be apt and ample security.

In tbis case, sucb bond would be no proper security. A perpetual injunction in this cause will not relieve tbe defendants in tbe judgment from paying it, nor give them any right to recover it back. It will only settle that Barnard and not Davis is entitled to tbe money.

In Rembert & Hale v. Brown, 17 Ala. 671, tbis court said: “ An injunction will not always be dissolved, even if tbe answer deny tbe equity of tbe bill, if tbe court can see good reason in tbe facts disclosed why tbe injunction should be retained. If tbe answer b.e evasive or uncertain, or if tbe case made by the answer does not clearly show that tbe complainant is not entitled to relief, tbe injunction should be retained until tbe final bearing.” The same principle bad been asserted in Poor v. Carleton, supra.

In Roberts v. Anderson, 2 Johns. Ch. 204, a judgment bad been recovered in an action of ejectment. Tbe defendant in ejectment being adjudged to be in possession as tenant to lessors of plaintiffs, bad precluded himself from defending tbe action at law, and tbe complainants in tbe chancery suit, claiming that they had title to tbe premises, bad filed their bill to enjoin said judgment at law, on tbe ground of fraud in tbe title under which tbe lessors of tbe plaintiff bad recovered. Tbe chancellor said: “ Both parties deduce title to tbe premises in controversy from William Griffith, and tbe only point is, whether tbe two deeds from Griffith to Sarah Johnson, under whom tbe defendants set up title, were fraudulent and void. Tbis question of fraud was not tried, and from tbe history of tbe ejectment suit, as stated in tbe pleadings, it would seem that it could not be tried, as tbe recovery was placed entirely on tbe ground that tbe defendant at law was tenant to tbe new defendants, and so concluded from setting up tbis defense. But tbe fraud, as charged, is a proper and familiar bead of equity jurisdiction, and unless tbe answer, be full and satisfactory, tbe injunction, if right in tbe first instance, ought to be retained until tbe bearing. ... It appears to me, then, that until tbe cause is brought to a bearing, and decided on tbe merits, tbe possession ought not to be changed, and that tbe case does not fall within tbe reason of tbe general rule, that an injunction is to be dissolved when an answer comes in and denies all tbe equity of tbe bill. . . Tbe granting and continuing of tbe process must always rest in sound discretion, to be governed by tbe nature of the case.” See, also, tbe case of Moore v. Hylton, 1 Dev. Eq. 435.

Contracts by which a father, largely indebted, and who soon afterwards becomes insolvent, parts with very valuable interests to his son, at or before the time the latter attains to lawful age, should at least invite the watchful scrutiny of courts. They are not necessarily fraudulent, but may be explained consistently with good faith and fair dealings.

In Young v. Dumas, 39 Ala. 60, which was a contract between near relations, we said: “ The relationship of Mr. Dumas to Mr. Horn, and the gift of the entire property by Mr. Horn to his daughter, Mrs. Dumas, while they should stimulate our scrutiny of the transaction, are not enough of themselves to mark the conveyance as fraudulent. Mr. Horn had the clear right to collect his demand, which we have seen was just, from his son-in-law, Mr. Dumas, and after he thus became the owner of the property, his right to give that property to the sole and exclusive use of his daughter, Mrs. Dumas, cannot be successfully controverted by the'creditors of Mr. Dumas.”

So, in this case, the transaction should be scrutinized, not with a foregone conviction that there was intent to defraud, but with a watchful purpose to know, if possible, the entire transaction. If, when the testimony comes in, the transaction be satisfactorily explained; if it be clearly shown that the father was, in good faith, indebted to the son as claimed, and in payment of that debt paid to him the claims in controversy in like good faith, then the appellee should enjoy the fruits of such payment. So, if there be satisfactory account of how George L. Davis acquired the money — $1,263— with which he purchased the homestead of the family, then his right to give it to his mother is clear and unquestioned.

We think the answers in this cause do not clearly show that the complainant is not entitled to relief. We forbear to specify, further than we have done above, the reasons which lead our minds to this conclusion, lest we might thereby inflict an undeserved injury on the defendants. We quote and adopt the language of judge Gaston, expressed on a similar application, that “ it is not for us to anticipate how these matters shall appear, when the cause shall be brought to a hearing, and we are reluctant to express any opinion which may prejudice the case of the defendants.” — Sherrill v. Harrell, 1 Ire. Eq. 195.

There is nothing in the objection that the chancery court of Madison county has not jurisdiction of this cause. The assignee is clothed with the rights of property of the bankrupt, with the additional right to assail and set aside fraudulent transfers of property made by the bankrupt. On the latter point he is armed with the power and rights of the creditors. If, then, the transfers complained of be obnoxious to the charge of fraud, the chancery court has full power to set them aside, that the assignee may apply the assets to the proper debts of the bankrupt. — bump on Bankruptcy, 6th Ed. 198, et seq; Bankrupt Act, section 16. The fraud charged in the present bill, if sustained, is a fraud on the common and statute law of the State of Alabama. Such questions are clearly cognizable before the proper State tribunals.— Ward v. Jenkins, 10 Metc. Mass. 583 ; Boone v. Hall, 7 Bush. 66; S. C. 3 Am. Rep. 288; Cogdell v. Exum, 59 N. C. 464; S. C. 12 Am. Rep. 657; Kemmerer v. Tool, 12 B. R. 334; Jordan v. Downey, 12 B. R. 427.

The chancery court of Madison should not have enjoined the collection of the judgment against Murphy and Donegan without more. There should have been provision made for its collection and safe custody until the final disposition of the cause. Ordinarily this is done through a receiver. But inasmuch as there is, in this case, but one act to be done, namely, the collection and safe-keeping of said iund, it would be both expensive and unnecessary to appoint an independent receiver for this simple duty. The register of the court, in his official capacity, is a proper person to receive said money and hold it in the registry of the court, to abide the further order of the court to be made in this cause.

The decree of the chancellor, dissolving the injunction, is reversed, and this court, proceeding to render the decree which the chancellor should have rendered, doth order and decree that said George L. Davis- be, and he hereby is, enjoined and restrained from controlling, collecting or receiving the proceeds of said judgment against Murphy and Donegan, described in the pleadings, until further order of the chancery court. And the said sheriff of Madison county is directed to collect said execution, and pay it into the registry of the chancery court, taking the register’s receipt therefor; said money to abide the further order of the said chancery court, to be made in the premises.

Beversed and rendered.

Bbickell, O. J., not sitting.