Northwestern Land Ass'n v. Grady , 137 Ala. 219 ( 1902 )

DOWDELL, J.

The appeal in this case is takefi from an interlocutory decree of the chancellor overruling the demurrers of the respondents to the complainant’s bill as amended. Without the statute — ■§ 427 — ' sucli an appeal would be unauthorized. The party' would be 'compelled to 'await a final decree in the cause, before the right of appeal to this court Avould' arise. The statute confers no right of appeal from an interlocutory decree on a motion to set aside an order, by which a cause, that has been dismissed for want of prosecution, is restored to the docket. Nor can such decretal order be reviewed here on appeal taken' under the statute from a decree on demurrer. Our jurisdiction, which is appellate, is restricted to a consideration of the questions only raised on the decree from which the appeal is sued out.

The bill is filed by a stockholder1 and its purpose is to annul and set aside certain alleged fraudulent conveyances, by which the corporate property has been wasted and lost to the corporation and the stockholders, and all, through a common scheme and conspiracy on the part of tire managing officers of the corporation into which the other respondents entered and participated. As a part of the alleged, conspiracy and common design to defraud, it is also averred in the bill, that certain decrees of the chancery court were fraudulently obtained, by and' through which, conveyances of the corporate property were effected, and these decrees are sought to be annulled and set aside, as well as the conveyances resulting under them. The prayer for relief among other things' is, that the property thus fraudulently conveyed be restored to the corporation, and that the fraudulent grantors and" grantees be held for an accounting for any loss. It is contended by counsel for appellants, that the bill, is multifarious in that it seeks to set aside certain alleged'fraudulent conveyances by the corporation of the corporate property, under an ultra vires resolution of its board of . directors, and at the same time seeks to impeach a decree of the chancery court on the ground of fraud. It has been decided by this1 court — Henderson et al. v. Farley National Bank, 123 Ala. 555. — that a bill to set aside fraudulent conveyances, is not rendered multifarious by bringing in any number of ’fraudulent- grantees, though claiming by as many different conveyances, and executed at different times, and even where “there is no allegation.. that the several sales and conveyances had any actual connection with each other in any way, either in fact or intent;” citing Hill Bros. v. Moon, 104 Ala. 353. A fortiori, where, as in the present bill, it is alleged that there Avas a conspiracy to defraud in which all participated. It is of no- consequence as to the manner and form adopted for the conveyance of the property, Avhether by deeds, or through the judgments and decrees' of the courts, improperly employed for the purpose, or by both combined, yet forming a part of the common design to defraud, — all may be properly embraced in one bill, Avithout- rendering it objectionable on the ground of nmltifariousness. The decree impeached by the bill for fraud, Avas one of the forms employed in perpetrating the wrongs complained of, and is, therefore, not a distinct subject matter, calling for different and distinct relief. Our conclusion is that the bill is not objectionable on the ground of multifariousness.

As stated above the bill is filed by the complainant as a stockholder, and its object is the redress of- corporate wrongs. For this purpose it contains the averments necessary to authorize its filing by a stockholder. The complainant, therefore, stands in the position of the corporation in his relation to this suit. The managing officers of the corporation are made respondents. It Avas said by this court in Lagarde et al. v. Anniston Lime & Stone Co., 126 Ala. 500, “It is well settled that directors and other governing members of a corporation are so far agents of the corporation that in their dealings respecting corporate interests; they are subject to the rules which apply generally to persons standing in fiduciary relations and Avbich forbid such persons to secure an advantage for themselves which fidelity to the trust reposed in them would carry to others whose interests they ought to represent. It is a breach of their fiduciary obligations which, equity will not tolerate, for such officers, in antagonism to the corporate interest, to oust the corporation from beneficial property, rights Avhich ought to be preserved to it, by acquiring the property for themselves. Derelictions of this kind are treated as a. fraud on the corporation out of which equity will raise a constructive trust in its favor;” citing authorities. Applying the above principle, it is clear, that from the wrongs complained of in the bill' before us, equity will raise a constructive trust in favor of the corporation of which the complain-, ant is a stockholder. The nature and purpose of this proceeding is to enforce a. constructive trust in lands.. In such a case, it has been held by this court that the statutes of limitations of three and six years as a defense, are not applicable, though the statute of ten years would be, if the case was not excepted from its operation by fraudulent concealment of the facts, or some other saving clause of the statute. — Stoutz, Admr. v. Huger, 107 Ala. 253.

Our conclusion is that the chancellor committed no-error in overruling the demurrers of - the several respondents, and his decree will be affirmed. The respond-, ent-s will Toe allowed thirty days within which-to answer the bill.

Affirmed.