Globe Iron Roofing & Corrugating Co. v. Thacher , 87 Ala. 458 ( 1888 )

McCLELLAN, J.

The bill in this case is filed in a double aspect. In one view, the claim sought to be enforced is that of a lienor under sections 3018 et seq. of the Code; in the other, the right relied on is that of a simple-contract creditor. In one aspect, it is sought only to enforce the demand of the complainant; in the other, it is sought to subject the property of the Decatur Bridge Company to the satisfaction of the claims of other creditors, as well as the complainant. In the phase of the case first presented, the effort is to subject only certain town lots belonging to the bridge company, to the satisfaction of a particular debt; in the phase last presented in the bill, the effort is to subject not only these lots, but all the property of the defendant company, to the satisfaction not only of the complainant’s debt, but also of the debts of all other bona fide creditors. By one set of averments, it is attempted to make a case, in which complainant’s claim will be held superior to certain conveyances made by the bridge company, to, or which enured, to the benefit of, the other defendants; by other allegations, the attempt is made to have these conveyances— which in this part of the bill are treated as nominally superior to complainant’s claim — declared void as to the debt of complainant, and other bona fide, creditors. It thus appears that, whether regard be had either to the character or amounts of the claims involved in the respective aspects of the bill, orto the quantity of propeity to be affected by the decree, or to the character or extent o£ the relief sought in the two presentments of the cause of action, there is a manifest dissimilarity, repugnance and inconsistency in and between the two parts of the bill of complaint.

The cardinal requirement with respect to bills framed in the alternative is, that each alternative must entitle the complainant to precisely the same relief, in kind if not in degree; so that, if the bill be confessed, the court, in decreeing the relief prayed on one state of facts, would also respond and grant the relief appropriate to the alternative state of facts. That the relief which would be appropriate to either of the alternatives of this bill would be entirely inappropriate to the other, we entertain no doubt. —Lehman v. Myer, 67 Ala. 403; Micou v. Ashurst, 55 Ala. 607; Heyer Bros. v. Bromberg, 74 Ala. 528; Gordon v. Ross, 63 Ala. 363; Moog v. Talcott, 72 Ala. 210.

The complainant was an original contractor, within the meaning of the statute giving to mechanics and material-men liens on buildings or improvements, to the making or erection of which they have contributed labor or material; and had six months from the accrual of the debt involved in this suit, in which to file a verified statement of the claim in the office of the probate judge of Morgan county. We do not understand that it is seriously denied thkt the statement required by section 3022 of the Code was filed within six months after the debt accrued. It is, however, strenuously insisted, that the statute was not complied with in respect to the verification of the statement so filed. The section last referred to requires that the statement must “be verified by the oath of the claimant, or some other person having knowledge of the facts.”

It is thoroughly well settled in principle, and by the adjudged cases, that liens of this class are dependent for their vitality upon a strict compliance, in all matters of substance, with the provisions of the statutes under which alone they have any existence. There is deemed no inequity, says Mr. Phillips, in this strict adherence to the requirements of the law, in view of the fact that the lienor claims, by the terms of the enactment, to fasten an extraordinary right on the lands of another, with priority over all other creditors. The claimant must seek his lien under the statute, and in accordance with its terms, or not at all. —Phillips on Mechanic’s Liens, §§ 10, 297; Chandler v. Hanna, 73 Ala. 394.

The verification of the statement filed in this case was made by an officer of the claimant corporation. It may be conceded, that under the circumstances, an officer of the incorporated company is to be considered “the claimant,” within the meaning of the clause quoted above, and does not come within the terms, “other person having knowledge of the facts.” It may be further conceded, that when the statutory affidavit is made by the claimant himself, it need not affirmatively show that the affiant knew the facts; and hence, that the verification made by an officer of a corporation need not affirm that he was cognizant of the facts to which he deposed. The existence of such knowledge, in the absence of anything to the contrary, will be presumed. But the statute, we have bo doubt, from its very terms, contemplates and requires that this extraordinary charge should not be placed on the property of another, unless the facts out of which the lien springs are vouched for on oath by some person, whether the claimant himself or another, who knows them to exist. The affidavit relied on here is, that “the foregoing statement is true as to the best of the affiant’s knowledge and belief.” This affirmatively shows that the affiant, whether he be considered the claimant or another person, did not have a knowledge of the facts embraced in the statement. He does not swear, that he knows them to be true, or that they are true, without more; but, on the contrary, the construction of the verification most favorable to the lien would be, that some of the facts were known to be true, and others, though not within the knowledge of the affiant, were believed to be true. This verification is insufficient, and fails to fix the lien on the property of the bridge company.—Dorman v. Crozier, 14 Kan. 224; Childs v. Bostwick, 12 Daly, N. Y. 15; Dennis v. Coker, 34 Ala, 61; Jones on Liens, § 1454.

In its second alternative, the bill seeks to have certain conveyances executed by the bridge company declared fraudulent and void, and the property covered by them subjected to complainant’s debt, With respect to one of these conveyances — the deed of trust of November, 1887' — it is alleged that the bridge company was, at the time of its execution, insolvent; that it covered all of the grantor’s property; that it was made to hinder, delay and defraud other creditors of the grantor; that it reserves a benefit to the company, in that the bonds for which it is security do not mature for ten years, during which time the property conveyed is to continue in the possession and use of the company; that said deed of trust was executed to secure the payment of $30,000 in negotiable bonds; that these bonds were issued and delivered to the First National and Exchange Banks of Decatur, as collateral security for an antecedent debt due to them; that this debt was alleged to be $30,000, and bonds to that amount were issued and deposited to secure the same, but that in truth and fact the debt was less than that sum, and, moreover, was made up in part of usurious interest charges. As we read the averments of the bill relied on to show fraud in this deed of trust, it charges, to recapitulate, insolvency on the part of the bridge company; conveyance of all its property to secure these two creditors; reservation of benefit; intent to hinder, delay and defraud; notice of this intent on the part of the real beneficiaries under the deed, the banks, and their constructive participation in the covinous purpose resulting from their acceptance of the issues of the deed of trust to secure an usurious debt, and simulation of the debt.itself, without regard to usury; and when to the case thus made is added the suspension of the banks’ right of action on their debt, resulting from their acceptance of the collateral security, having ten years in which to mature, and the delay of other creditors necessarily growing out of this fact, we are clearly of the opinion, that these averments are sufficient to impeach the deed of trust of November 1, 1887, as fraudulent and void as to the complainant.

Whatever may have been the intent of the bridge company in the execution of the mortgage of April, 1888, there is no allegation of bad faith on the part of any of the beneficiaries thereunder; no imputation of simulation of the debts sought to be secured; no averment of notice on the part of the creditors preferred by the mortgage, of the mala fides of the grantor, nor of their participation in such intent, if it existed. Clearly, these allegations do not make out a case of fraud. A debtor may prefer a bona fide creditor, whatever intent on the part of the debtor may characterize the act, provided the creditor does not participate therein.—Crawford v. Kirksey, 55 Ala. 282; Hodges v. Coleman, 76 Ala. 103. And the fact that the bona fide creditors who are thus secured by the mortgage of April, 1888, or some of them, are stockholders and officers of the bridge company- — which fact constitutes the only special infirmity laid against this instrument — does not render it fraudulent. Turinlick v. Marbury, 91 U. S. 589.

The only other matter urged upon our attention relates to the general assignment of May, 1888, which is alleged to be rendered fraudulent by reason of the reservation of a benefit to the assignor. It is true, no time is fixed for the foreclosure of this assignment, and the use of the property, until foreclosure is had, is reserved to the bridge company. Any creditor had the right, at any time, to compel, and the assignee, at all times, had the power to proceed with, foreclosure ; and the reservation of the possession and use of the property contingent upon the exercise of the right to foreclose, thus residing in both the assignee and beneficiaries, will not avoid the conveyance for frand.—Graham v. Lockhardt, 8 Ala. 9; Abercrombie v. Bradford, 16 Ala. 560; Shackelford v. P. M. Bank, 22 Ala. 238.

The decree of the chancellor, in so far as it sustained demurrers to those averments of the bill which sought to impeach the deed of trust of November, 1887, is erroneous, and must be reversed. We discover no error in the rulings of the court below on the other grounds of demurrer,

Reversed and remanded.