
    Seals v. Pheiffer & Co. et al.
    
    
      Bill in Equity by Creditors to set aside Conveyances as Fraudulent.
    
    1. Amended bills; inconsistency between. — Where the original bill, filed by creditors, sought to set aside, on the ground of fraud, a voluntary conveyance by the debtor to his wife; and the wife, in her answer, set up a subsequent purchase by her under execution sale against her husband ; after which the bill was amended, recognizing the validity of the sheriff’s deed, and offering to redeem under it; which amendment, on appeal to this court, was held inconsistent and r< pugnant with the original bill —Held, that a second amendment, striking out the former, and attacking the validity of the sheriff’s deed, on the ground that the money paid was furnished by the husband, was properly allowed, being consistent with the original bill, though inconsistent with the first amendment, which was struck out.
    Appeal from the Chancery Court of Pike.
    Heard before the Hon. John A. Poster.
    When this case came up on appeal to this court before (77 Ala. 278), it stood on the original bill as then amended, as a bill by the appellees, Pheiffer & Co., and other creditors of one S. J. Seals, to set aside as fraudulent, two conveyances by said Seals — the one a deed of gift of certain lands to his wife, Mrs. E. C. Seals, the appellant, and the other a general assignment to W. A. Weldon, the father of appellant, as trustee for the benefit of creditors therein named, and, also, as a bill for the redemption of certain real estate of said S. J. Seals, sold under execution at sheriff’s sale, a deed to which, under said sale, had been executed and delivered to Mrs. Seals. The chancellor overruled a demurrer to the bill on the ground of multifariousness, and rendered a decree, declaring the deed to Mrs. Seals fraudulent and void, as against the complainants, and granting their prayer to be allowed to redeem the property sold at said sheriff’s sale. On appeal, this court reversed and remanded the case, holding the bill to be multifarious in embracing said two conveyances, and that the complainants, being simple contract creditors, had not the right to redeem.
    After the case had been remanded, the complainants amended their bill in conformity with the decision of this court, by striking out all that portion relating to said deed of assignment and by striking out the offer to redeem.
    The bill, as previously amended, contained allegations as to the sheriff’s deed, which were, in substance, that although Mrs. B. O. Seals was named therein as purchaser, yet S. J. Seals furnished the purchase-money and was, in fact, the purchaser, and the testimony tended to prove these allegations. These and the other material allegations of the original and amended bills, were denied by Mrs. Seals in her answer.
    This being the state of the pleadings, the cause was submitted for final decree and held by the chancellor for consideration in vacation; and, in vacation, a decree was rendered, setting aside the submission, reinstating the cause on the trial docket, allowing the complainants to file an amended bill, and both parties to re-examine witnesses and take additional testimony, if they saw proper. This decree was rendered upon the ground, that the allegations and prayer of the bill as amended, were not sufficient to entitle the complainants to have the sheriff’s deed declared void as to them, although the proof authorized it. At the time this decree was rendered, the bill did not allege that complainants’ debts were in existence when the sale under execution wasmade, and did not contain a prayer that the sheriff’s deed be set aside and annulled as fraudulent and void. The complainants, thereupon, amended their bill in conformity with this decree, by adding said allegations and prayer.
    The defendant, Mrs. Seals, demurred to the bill as amended upon the ground, that it was an entire departure from the case made out by the original bill. This demurrer was overruled, and a decree rendered, declaring the deed from S. J. Seals, and, also, the sheriff’s deed, to defendant, fraudulent and void as to complainants, and ordering the sale of the property embraced in said deeds (except that previously sold under decree in favor of another creditor), and the appropriation of the proceeds of the sale to complainants’ claims. The allowance of the various amendments, the decree setting aside the submission in vacation as stated above, and the final decree granting the relief prayed for, are here assigned as error.
    M. N. Carlisle, and Parks & Son, for appellant.
    The demurrer should have been sustained, the amendments being inconsistent with the original bill. — Larkins v. Biddle et al., 21 Ala. 252; Galdiuell v. King, 76 ib. 149; Tatum Brothers v. Walker, 77 ib. 563; Lehman et al. v. Meyer et al., 67 ib. 397. The defenses to the original and amended bills are different, and the relief sought is not the same. The original bill was filed to set aside a voluntary deed of husband to wife ; the amended bill embraced that, and, also, sought to set aside another and different title, the sheriff’s deed, which recited a valuable consideration. This made a new case. — McKinley v. Kvine et al., 13 Ala. 707; Ray’s Adm’r v. Womble, 56 ib. 33; Caldwell v. King, supra. The general rule is, that, after the proof has been taken on both sides and the cause finally heard, an amendment will not be allowed, and the statute allowing amendments at the hearing, does not authorize an amendment making a new case. McKinley v. Irvine et al., supra; Story’s Eq. PI. 336, 614,886. The same effect is produced by striking out one cause of action, and then inserting a new and different one, as is produced by inserting the new cause of action before the first is stricken out. — Laird v. Moore, 27 Ala. 326.
    Gardner & Wiley, contra,
    
    cited Seals v. Pheiffer & Co.. 77 Ala. 278.
   SOMERVILLE, J.

— The bill, as originally framed, was filed for the double purpose of assailing for fraud two conveyances made by one S. J. Seals, deceased — the one a deed of gift, conveying certain lands to his wife, the appellant; and the other a general assignment, made to a trustee for the benefit of named creditors. The bill being held to be multifarious by reason of uniting two separate and distinct matters in the same suit, it was amended by striking out all that portion relating to the assignment. If the case had rested here, the complainants, as creditors of S. J. Seals’ estate, would certainly have been entitled to the relief claimed, on proof of the allegations of the bill. — Seals v. Robinson, 75 Ala. 363; Seals v. Pheiffer, 77 Ala. 278.

The answer of the defendant, Mrs. Seals, however, disclosed the existence in her hands of a sheriff’s deed, which, if valid, conferred on her a title paramount to the equity of the complainants. The bill was thereupon again amended so as to allege the execution and delivery of this deed by the sheriff, and the complainants, recognizing its validity, offered to redeem the land — a right to which this court held, on appeal, they were not entitled, being, as they were, simple contract creditors only. — Seats v. Pheiffer, supra.

The judgment being reversed on this appeal, and the cause remanded, another amendment was made to the bill, by striking out the offer to redeem, and inserting an averment of facts by which the sheriff’s deed was attacked for fraud.

It is here objected that the chancellor erred in allowing this amendment, because it conflicted with the former amendment which admitted the validity of the sheriff’s deed. This, in our opinion, is no sufficient objection to it. The first amendment may or may not have been improperly allowed, inasmuch as it destroyed the case made by the original bill. However that may be, striking it out has obviated any tenable objection to it. By this process of amendment the bill was reduced to its original shape and purpose, as a creditors’ bill assailing a deed of gift made by a debtor to his wife. The last amendment was perfectly consistent with the bill, although repugnant to the expunged amendment. The bill, in its present shape, attacks for fraud both the deed to the wife and the sheriff’s deed, the latter being alleged to have been made upon a consideration paid by the debtor and not by his wife, which fact, if true, rendered the title acquired by her one held in trust for the complainant and other creditors of the deceased husband. The bill was, in no wise, rendered multifarious by uniting these two matters in the same suit.

The other assignments of error are without merit.

Affirmed.  