Bromberg Bros. v. Heyer Bros. , 69 Ala. 22 ( 1881 )

SOMERYILLE, J.

The several grounds of demurrer interposed by the appellants to the bill in this case were properly overruled by the chancellor. The first, second, third and fifth causes were mere “ spealcmg demurrers,” based on the averred contents of a writing or document entirely variant from the allegations of the bill. A demurrer must be based upon, matter apparent on the face of the bill, and cannot be supported by ■any new fact or foreign matter alleged by the defendant. — Story’s Eq. Plead. §§ 447-452. The doctrine of craving oyer of written insruments, and of demurring if a material variance appears between, the oyer and declaration, has always been a practice confined to courts of law, and has never prevailed in courts of equity. It was also confined to the instrument upon which the suit was brought.

The fourth cause of demurrer was equally untenable. It may be that the bill was multifarious, as being filed in a double aspect and embracing alternate averments which are inconsistent and repugnant. — Lehman et al. v. Meyer et al. 67 Ala. 396. But it was not demurred to on this ground. And whether we consider it as a creditor’s bill filed to set aside a sale as fraudulent, or to decla/re it a general assignment, it could be filed by a simple contract creditor without a lien. Section 3886 of the present Code (1876) confers on such creditors the remedy, which was formerly accorded only to judgment creditors, of filing a bill to set aside a conveyance or sale made with intent to hinder, delay or defraud creditors. — Reynolds v. Welch, 47 Ala. 200; Evans v. Welch, 63 Ala. 250. And it is too manifest for argument, that a creditor without a lien may assail a general assignment with the view of claiming the benefit of section 2126 of the Code, which provides that such a conveyance shall “ enure to the benefit of all the creditors of the grantor equally.”

There is no error in the action of the chancellor refusing to discharge Charles L. Bromberg on his disclaimer. A party can not in this manner get rid of his liability to answer a suit, where the statements of the bill show him to be a proper or necessary party. The bill here avers a fraudulent transfer as being made by Bromberg Bros., of which firm Charles L. was a member, and both members of the partnership are alleged to be liable for the debt due complainant. Their conduct, furthermore, requires investigation, and the judgment of the court vitally affects their interests. The disclaimant was a necessary party to this suit, and should not have been discharged. His motion was properly overruled. — Bump on Fraud. Convey. 534; Gaylords v. Kelshaw, 1 Wall. 81; Story’s Eq. Plead. § 840.

The decree of the chancellor is affirmed.