Opinion
6 Div. 369.
November 15, 1917.
Appeal from Chancery Court, Jefferson County; A. H. Benners, Chancellor.
Stokely, Scrivner Dominick, of Birmingham, for appellants. Henry Upson Sims, of Birmingham, for appellee.
Under the rulings made on the former appeal of this case, the lands described in the bill are not subject to an attorney's lien in favor of complainant, nor did their conveyance to the respondent corporation, by complainant's consent, create a constructive trust in that behalf. Harton v. Amason, 195 Ala. 594, 71 So. 180.
The several amendments ingrafted upon the bill after that decision work an abandonment of the theory upon which the special relief was originally prayed. As amended, the bill is now an ordinary creditor's bill for the discovery of assets, whether equitable or legal as to title, and their subjection to complainant's claim. Its equity rests upon the necessity of discovery, and the equitable nature of Harton's alleged interest in the lands as nominally held by the corporation, or in the corporate stock as nominally held by Jones and Hawkins. A fraudulent conveyance by Harton of assets sought to be subjected by complainant is not necessary to the equity of the bill. Pollak v. Billing, 131 Ala. 519, 32 So. 639.
The amendments work no departure from the original bill. Its primary purpose was to collect a debt out of lands which belonged legally or equitably to Harton. That purpose still remains, though the theory of a preferential lien is abandoned. King v. Livingston Mfg. Co., 192 Ala. 269, 68 So. 897. As remarked in that case, the alteration of the theory upon which a result is to be reached, although new facts are interjected, is not a departure which is obnoxious to the rules of equity procedure.
It is, of course, to be noted that if the testimony does not show, either the necessity for a discovery, or that Harton's title in the property sought to be subjected is equitable, and not subject to legal process, then the equity of the bill fails, and complainant must be remitted to his remedies at law.
We find no error in the rulings of the trial court on the demurrers, and the decree overruling them will be affirmed.
Affirmed.
ANDERSON, C. J., and MAYFIELD and THOMAS, JJ., concur.