creditor's suit, though it was not alleged to have been instituted for the benefit of the creditors generally, where the nature of the case is such as to require the creditors to be called in.' In such case the fund is retained in chancery until all the creditors are notified to come in and assert their claims, and the omission may be supplied by amendment before making the decree." In some cases it has been held that the bill may be treated as a creditor's bill in the decree and other proceedings founded on it, and that amendment is not absolutely necessary." 8 14. Excusing laches.-A creditor is not deemed guilty of laches in the commencement of a suit to set aside a conveyance for fraud where the facts constituting the fraud remained undiscovered, if the facts were kept concealed and he could not by reasonable or ordinary diligence have discovered the fraud sooner. Ignorance of the facts from which the conclusion or inference of a fraudulent intent is to be drawn is ignorance of the facts constituting the fraud. But means of easily obtaining knowledge are equivalent to actual knowledge," and concealment by mere silence, attended by no other circumstances of concealment, is not enough to show absence of the means of obtaining knowledge or want of knowledge of the fraud, and thus avoid the running of the statute U. S.-Horner v. Henning, 93 U. S. 228, 28 L. Ed. 879; Pullman v. Stebbins, 51 Fed. 10. Me.-Crocker V. Craig, 46 Me. 327; Fletcher v. Holmes, 40 Me. 364; Caswell v. Caswell, 28 Me. 232. N. J.-Hunt v. Field, 9 N. J. Eq. 36, 42, 57 Am. Dec. 365. N. C.-Long v. Yanceyville Bank, 81 N. C. 42; Wilson v. Lexingtou Bank, 72 N. C. 621. Eng. Good v. Blewitt, 13 Ves. Jr. 397, 33 Eng. Reprint, 343. See Parties plaintiff, chap. XV, § 62, supra. 9. Hammond V. Hammond, 2 Bland. (Md.) 306. 10. Hammond v. Hammond, supra; Good v. Blewitt, supra; Atty.-Gen. v. Newcombe, 14 Ves. Jr. 1. 11. Simms v. Lloyd, 58 Md. 477; Gibson v. McCormick, 10 Gill. & J. (Md.) 65; Birely v. Staley, 5 Gill. & J. (Md.) 432, 25 Am. Dec. 303; Strikes' Case, 1 Bland. 57. 12. Erickson v. Quinn, 47 N. Y. 410; Rosenthal v. Walker, 111 U. S. 185, 4 Sup. Ct. 382, 28 L. Ed. 395; Wood v. Carpenter, 101 U. S. 135, 25 L. Ed. 807; Bailey v. Glover, 21 Wall. (U. S.) 342, 22 L. Ed. 636; Washington v. Norwood, 128 Ala. 383, 30 So. 405; Lockard v. Nash, 64 Ala. 385; Snodgrass v. Branch Bank, 25 Ala. 161, 60 Am. Dec. 505. of limitations from the time when the fraud was perpetrated.3 In order to avoid the statute of limitations in a suit to set aside a deed for fraud, and to avoid the imputation of laches apparent on the face of the bill, by want of knowledge of the fraud, the bill must set forth specifically the impediments to an earlier prosecution of the claim, how the plaintiff came to be so long ignorant of his rights, the means, if any, used by the defendants to fraudulently keep him in ignorance, and how and when he first obtained knowledge of the matters alleged in the bill." If plaintiff made any particular discovery, it should be stated when it was made, what it was, how it was made, and why it was not sooner made.15 In New York, under the ruling of the court of appeals that the discovery by a creditor of a fraudulent transfer of property by his debtor does not start limitations running against a suit to subject the property, unless the creditor has already obtained judgment and issued execution thereon in the state,16 but that his right of action accrues only when he has taken such preliminary steps, where sufficient time has not elapsed thereafter to bar his suit, the time, manner, or circumstances of discovering the alleged fraud are immaterial, and need not be alleged; such allegations being necessary only when the ordinary period of limitation is sought to be extended by reason of lack of knowledge of fraud."7 8 15. Pleading evidence. In an action to set aside as fraudulent a conveyance of land, so much of the complaint as sets out in detail the inceptive steps which culminated therein is not irrelevant or redundant matter.18 But matters of evidence or evidential facts 13. Wood v. Carpenter, 101 U. S. 135, 25 L. Ed. 807. 14. Pearsall v. Smith, 149 U. S. 231, 13 Sup. Ct. 833, 37 L. Ed. 713; Hammond v. Hopkins, 143 U. S. 224, 12 Sup. Ct. 418, 36 L. Ed. 134; Wood v. Carpenter, supra; Fox v. Lipe, 14 Colo. App. 258, 59 Pac. 850, a bill which does not allege when the fraud was discovered, nor the fact constituting the fraud and the circumstances under which it was ascertained, is demurrable; Annett v. Coffey, 1 Colo. App. 34, 27 Pac. 614. 15. Hardt v. Heidweyer, 152 U. S. 547, 14 Sup. Ct. 671, 38 L. Ed. 548. 16. Weaver v. Haviland, 142 N. Y. 534, 37 N. E. 641, 40 Am. St. Rep. 631. 17. Lehman v. Crosby, 99 Fed. 542. 18. Perkins v. Center, 35 Cal. 713. should not be pleaded.19 Where the issues to be raised are whether a deed was made and whether, if made, it was made with fraudulent intent, if these points are distinctly presented, it is enough.20 A general averment of facts according to their legal effect, without setting forth the particulars which lead to it, is sufficient, and necessary circumstances implied by law need not be expressed in the plea.21 22 § 16. Prayer for relief. The formal relief asked for in a complaint in equity is not of such importance as to be controlling, and the court will grant such judgment as shall be consistent with the case made by the complaint and embraced within the issues. A court of equity, having obtained jurisdiction of the parties and the subject matter of an action, may adapt its relief to the exigencies of the case, and the plaintiff is entitled to such judgment and relief as the law pronounces upon the facts pleaded and proved, although it may not have been specially prayed, and when it is for any reason impracticable to grant the specific equitable relief demanded.23 But, while under the general prayer for relief, a party may have any relief to which he may show himself entitled, such relief must be founded on and consistent with the allegations in the bill, and not such as may be proven at the trial. A court of equity will not render a decree in favor of a complainant on 19. Hall v. Henderson, 126 Ala. 449, 28 So. 531, 85 Am. St. Rep. 53, 61 L. R. A. 621; Zimmerman v. Willard, 114 Ill. 364, 2 N. E. 70. 20. Zimmerman v. Willard, supra. 21. Sullivan v. Iron & Silver Min. Co., 109 U. S. 550, 3 Sup. Ct. 339, 27 L. Ed. 1028. 22. Dudley v. Third Order of St. Francis, 138 N. Y. 451, 34 N. E. 281; Valentine v. Richardt, 126 N. Y. 272, 27 N. E. 255; Bell v. Merrifield, 109 N. Y. 202, 16 N. E. 55, 4 Am. St. Rep. 436; Fisher v. Moog, 39 Fed. 665; Treadwell v. Brown, 44 N. H. 551. 24 23. N. Y.-Valentine v. Richardt, 126 N. Y. 272, 27 N. E. 255; Donovan v. Sheridan, 37 N. Y. Super. Ct. 256; Buswell v. Lincks, 8 Daly, 518. Ill.-Alexander v. Tams, 13 Ill. 221. Ky.-Campbell v. Trooper, 108 Ky. 602, 22 Ky. L. Rep. 277, 57 S. W. 245. Mo.-Schneider v. Patton, 175 Mo. 684, 75 S. W. 155. 8. C.-Miller v. Hughes, 33 S. C. 530, 12 S. E. 419; Brown v. McDonald, 1 Hill Eq. 297. 24. Schneider v. Patton, 175 Mo. 684, 75 S. W. 155. 29 26 but grounds not stated in his bill.25 Courts or equity will give judgment for money only, where that is all the relief needed,2 where the petition in no way intimates, nor contains any allegations from which it would be inferred, on what account, if at all, a personal judgment against defendant would be asked, such judg ment is unauthorized." A court of equity will not render a decree setting aside a conveyance as made to hinder and delay creditors where the bill does not pray for such a decree.28 In a bill in equity to set aside a fraudulent conveyance, the complainant may properly embody a prayer for an account of the rents and profits, and the court will take jurisdiction of the same; but, if he neglects to do this, equity has no original jurisdiction to take cognizance of a bill subsequently filed for this purpose alone.30 A creditor's bill may be filed in equity with a double aspect, asking alternative relief, where there is no inconsistency or uncertainty in its terms.31 But if the forms of relief asked are inconsistent, as that the conveyance be set aside and the title to the property vested in the complainant and that the complainant be awarded the proceeds of the sale of the property,32 or that the conveyance be set aside as fraudulent or be enforced as a general assignment, the prayer is bad for repugnancy. A prayer for relief is also bad where it cannot be reconciled with the allegations of the petition. And where the prayer of the petition fails to show what relief is sought, a demurrer to the petition is properly sustained.35 A complaint in an action by a judgment creditor to set aside a sale made by the 25. Bailey v. Ryder, 10 N. Y. 363; Pochelu v. Catonnet, 40 La. Ann. 327, 4 So. 74; Keneweg Co. v. Schilansky, 47 W. Va. 287, 34 S. E. 773. 26. Bell v. Merrifield, 109 N. Y. 202, 16 N. E. 55; Murtha v. Curley, 90 N. Y. 372. 27. Schneider v. Patton, 175 Mo. 684, 75 S. W. 155. 28. Clark v. Kraus, 2 Mackey (D. C.), 559; Eastman v. Ramsey, 3 Ind. 419. 33 29. See Rents and profits, chap. XIV, § 38, supra. 30. Hadley v. Morrison, 39 Ill. 392. 31. Fisher v. Moog, 39 Fed. 665; Crawford v. Kirksey, 50 Ala. 590. 32. Chisholm V. Wallace (Ala. 1906), 40 So. 219; Caldwell v. King, 76 Ala. 149. 33. Moog v. Talcott, 72 Ala. 210. 34. Maynard v. Way, 11 Ky. L. Rep. 166, 11 S. W. 806. 35. Van Vliet v. Halsey, 37 Kan. 116, 14 Pac. 482. debtor on the ground that the sale was procured by the fraud of the buyer need not offer to return the consideration paid by the buyer, especially where it prays for general relief, which may be taken as a prayer for a recovery of the value of the property minus what was paid therefor by the buyer.36 38 17. Multifariousness.-The demand in one bill of several matters of a distinct and independent nature against several defendants," or the uniting in one bill against a single defendant several matters perfectly distinct and unconnected, constitutes multifariousness. It may be taken advantage of by demurrer, or by plea and answer previous to a hearing, or by the court of its own accord at any time, even if not objected to by the defendant." A bill is subject to demurrer for multifariousness by reason of the misjoinder of parties, plaintiff or defendant, who have no common interest in the matter of litigation, as well as for multifariousness in the subject matter of the suit. The subject admits of no general rules, it having been held that to lay down any rule applicable universally or to say what constitutes multifariousness, as an abstract proposition, is, upon the authorities, utterly impossible.“ 36. Pritz v. Jones, 102 N. Y. Supp. 549. 37. Fellows v. Fellows, 4 Cow. (N. Y.) 682, 15 Am. Dec. 412; Stephens v. Whitehead, 75 Ga. 294; Bobb v. Bobb, 8 Mo. App. 257; Jordan v. Liggan, 95 Va. 616, 29 S. E. 330. 38. Walker v. Powers, 104 U. S. 245, 26 L. Ed. 729, where the relief sought involved totally distinct questions, requiring different evidence and leading to different decrees; Robinson v. Springfield Co., 21 Fla. 239; Stephens v. Whitehead, 75 Ga. 294. A creditor's bill is not multifarious, because based on two several judgments both in favor of the complainant and against the same defendant, nor because it attacks as 40 fraudulent a conveyance of property 41. Campbell v. Mackay, 1 Myl. & C. 603, 13 Eng. Ch. 603, 40 Eng. Reprint, 507, 7 Sim. 564, 8 Eng. Ch. 564. |