Opinion
6 Div. 943.
January 17, 1924.
Appeal from Circuit Court, Jefferson County; William M. Walker, Judge.
Davis Locke, of Birmingham, for appellants.
To declare void the conveyance to the property described in paragraph 3 of the bill would divest all title out of respondents. The aspect of the bill seeking to subject the interest of J. N. White to the property described in paragraph 4 is without equity; as to this, there is an adequate remedy at law. 23 Cyc. 1432.
R. C. Redus, of Birmingham, for appellee.
Under the general prayer, the complainant may have the relief authorized by the facts averred, although he be mistaken in the special relief prayed. Rosenau v. Powell, 173 Ala. 123, 55 So. 789; May v. Lewis, 22 Ala. 646; Munford v. Pearce, 70 Ala. 452.
The allegations of the bill of complaint sufficiently show a fraudulent concealment of the funds of the respondent J. N. White in lands which he purchased with his own funds, but the title to which he procured to be conveyed to his wife. Unquestionably, on the showings of the bill complainant is entitled to have the land so vested in the respondent wife subjected to the satisfaction of his judgment, and such relief is always of equitable cognizance and administration. The bill, as amended, is not subject to any of the grounds of demurrer assigned, whether as to the bill as a whole, or as to any of its parts.
The demurrer, or, more accurately speaking, the argument of respondents' counsel on the demurrer, is directed entirely against the aptness and propriety of the prayers for special relief, and not against the substance of the bill itself.
But the rule is well settled that, when the allegations of the bill show that the complainant is entitled to cognate relief, and there is a general prayer, the bill is not rendered demurrable by reason of the fact that special prayers are inapt, or ask for relief in excess of, or different from, that which the facts alleged would warrant. Rosenau v. Powell, 173 Ala. 123, 128, 55 So. 789, and cases cited therein.
As to the land shown to have been conveyed to the two respondents jointly, the equity attaches of course only to the half interest fraudulently vested in the respondent wife, and relief will be limited to that interest. As to the half interest vested in the respondent debtor, the special prayer, if inclusive of it, will be simply disregarded.
As to the other parcel, the prayer to hold as void the conveyance made to the wife will also be disregarded, and an appropriate decree will be rendered for the accomplishment of the purpose of the bill, which is simply the subjection of the land to the satisfaction of the judgment.
We think the demurrer was properly overruled, and the decree in that behalf will be affirmed.
Affirmed.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.