Staude v. Keck , 92 Va. 544 ( 1896 )

Cardwell, J.,

delivered the opinion of the court.

This is an appeal from a decree of the Chancery Court of the city of Richmond) entered on the 15th of November, 1892, dismissing on demurrer the bill of complaint filed by the appellant, for multifariousness.

The bill was filed by A. J. Staude and Caroline C. Staude,. his wife, and E. G. Schwalm and Mary C. Schwalm, his wife,, against Henry J. Keck and Maria Keck, his wife, and J. B. Elam, trustee; the object of the bill being to set aside, as-fraudulent, a deed made by H. J. Keck to his wife, Maria Keck, August 24, 1891, conveying to her certain property, and to subject this property to the payment of the debts against H. J. Keek set out in the bill, and further to have the court adjudicate the rights of the complainants respectively as to the various debts and demands asserted in the bill, declaring an apparent trust in J. B. Elam for plaintiff,. Mary R. Schwalm, void.

The bill alleges that complainants, on the 10th of August, 1891, entered into a written contract, through A. J. Staude, with Henry J. Keck, whereby Keck agreed to purchase, at the price of $3,400, a certain house and lot in the city of' Richmond, on Rocketts street, and to purchase certain bar fixtures, &c., at the price of $600; that the house and lot belonged at that time, one moiety to Mary R. Schwalm, and the other moiety was held in trust by J. B. Elam for Caroline C. Staude; that the har fixtures, &c., belonged exclusively to A. J. Staude, he being authorized by Caroline C. Staude and Mary R. Schwalm to make the sale of the house- and lot; and that on the 18th of August, 1891, the deed was duly executed conveying the property to Keck; that Keck agreed to pay $3,000 in cash on the purchase of the house,, but paid only $2,850, which he borrowed from the Yirginia Building and Loan Company, giving a deed of trust on this property to secure the Building and Loan Company $3,000, the company promising to advance the remaining $150 within a few months to finish the cash payment, but never did so; that H. J. Keck executed another deed of trust, as a second lien on this property, to S. Me. Fisher, to secure the payment of six notes of $111 each, dated August 10, 1891, payable at 6, 12, 18, 24, 30, aud 36 months after date, respectively; that four of these notes were given as the deferred payments fo-r the purchase of the house and lot, and the other two on account of the $600 due to A. J. Staude for the purchase of the .bar fixtures, &c.; that all of said notes were made payable to J. B. Elam, trustee for Caroline C. Staude and Mary E. Schwalm, and this was erroneous, but was done for convenience.

The bill further alleges that J. B. Elam is not trustee for Mary E. Schwalm; that two of the notes were past due and unpaid, and the other four to become due; that Keck had failed to pay any part of the balance of the $400 due to A. J. Staude for the purchase of the bar fixtures, though long past due, and that the amount to become due by H. J. Keck, or to become due on account of his contract of purchase, was $150, balance of the cash payment for the house, the six notes for $111 each, and the $400 balance due to A. J. -Staude.

The bill then alleges that H. J. Keck, on the 10th of August, 1891, at the time of the making of the contract of purchase aforesaid, owned in fee simple a lot of land in the •county of Henrico, situated on Twenty-sixth street, upon which he had erected a dwelling and other improvements, and which property he, on the 24th of August, 1891, conveyed to his wife, Maria Keck, the consideration named in the deed being $250; but, as complainants aver, the deed was wholly voluntary, and made to hinder, delay, and defraud complainants.

The prayers of the bill are that H. J. Keck and Maria Keck, his wife, and J. B. Elam, trustee, be made parties defendant, &c.; that it be ascertained what part of said notes described is due to each of the female complainants, and to the said A. J. Staude, and whether or not Caroline C. Staude is entitled to her share of the same freed from any trust by reason of the conveyance to J. B. Elam, trustee, as also of her share of the $150, balance of the cash payment of the purchase money for the property on Rocketts street conveyed to Keck; that it may be decreed that Mary R. Schwalm is entitled to her share of the money and notes, and not encumbered with a trust; and that the amounts severally due to them, and to A. J. Staude, as set forth, may be decreed to them respectively; and that the property conveyed to Maria Keck by H. J. Keck be subjected to the payment thereof, &a.

Courts, in dealing with the question of multifariousness, look particularly to convenience in the administration of justice, and, if this is accomplished by the mode of proceeding adopted, the objection of multifariousness will not lie, unless the course pursued is so injurious to one party as to make it inequitable to accomplish the general convenience at his expense. So that, when we look to see if a bill is multifarious, the first question to be determined is, does the bill propose to reach the end aimed at in a convenient way for all concerned? And if the mode adopted does accomplish the convenience, then the question arises, is any one hurt by it, or so injured as to make it unjust for the suit to be maintained in that form? School Board of Albemarle Co. v. Farish et als., ante, p. 156.

The plaintiffs were creditors of H. J. Keck, growing out of the same transaction, and it was their right and duty to assert their several claims in one suit, and Mrs. Maria Keck was a necessary and proper party defendant to the suit, as the alleged fraudulent deed made to her was asked to be set aside, and the property conveyed thereby subjected to plaintiffs’ demands. Had the bill set out the claims of the several plaintiffs against H. J. Keck, and the making of the alleged fraudulent deed of August 24, 1891, followed with the prayer that the deed he set aside as fraudulent and void, and the property conveyed thereby subjected to the payment of claims asserted by plaintiffs, and stopped there, the bill would, of course, have been free from objection on demurrer for multifariousness. It goes on, however, to show that plaintiffs’ interests are antagonistic to each other, makes J. B. Elam, trustee, a party defendant, and prays for relief not only as to Keck and wife, but in matters set out as against one another, and against Elam, trustee, with which H. J. Keck has little concern, and Maria Keck, his wife, less. This mode of procedure cannot be said to be a convenient way for all concerned to reach the end aimed at, but is manifestly unjust, certainly to Maria Keck, who it cannot be said has any interest whatever in, or concern as to, the different rights set up by plaintiffs against each other, or as against Elam, trustee, the settlement of which would involve not only inconvenience and delay in the determination of the controversy between her and the plaintiffs, but add necessarily and unjustly to the costs in defending her interests involved in the suit. In order to maintain this bill, the rules of equity pleading would not only have to be expanded and enlarged, but wholly disregarded. 1 Barton’s Ch’y Prac. 256; Daniel’s Ch’y Prac. (5th ed.), 334, and note 2; Story’s Eq. Pl., secs. 271 and 530; Washington City Savings Bank v. Thornton, 83 Va. 157, 165; Wells v. Sewell Point Guano Co., &c., 89 Va. 708 ; Brown v. Bedford City Land & Imp. Co., 91 Va. 31.

We are of opinion that the decree of the Chancery Court of the city of Bichmond is right, and should be affirmed.

Affirmed.