Opinion
SC 740.
August 1, 1974.
Appeal from the Circuit Court, Pickens County, Strawbridge, J.
B. G. Robison, Jr., Carrollton, Thomas F. Parker, Montgomery, for appellant.
The debtor himself, though he would be a proper party to a bill filed by a judgment creditor to reach and subject assets fraudulently conveyed or transferred by him, is not a necessary party, since the conveyance is binding on him, and the fraudulent transferee may set up any defense which the grantor might assert. Coffey v. Norwood, 81 Ala. 512, 8 So. 199; Kennedy v. First National Bank of Tuscaloosa, 107 Ala. 170, 207, 18 So. 396. To be a necessary and indispensable party to a bill in whose absence the court will not proceed to a final decree, one must have a material interest in the issue which will be necessarily affected by the decree before it will be said that the court may not proceed in his absence. Hodge v. Joy, 207 Ala. 198, 92 So. 171; Mathison v. Barnes, 245 Ala. 289, 16 So.2d 717; McCary v. McMorris, 265 Ala. 493, 92 So.2d 319; Roberts v. Brewer, 290 Ala. 329, 276 So.2d 574. If the transfer passes the legal title, the grantor is not a necessary party but a proper party at the suit of a creditor in equity to vacate it and subject the property to the payment of the debt. Trotter v. Brown, 232 Ala. 147, 167 So. 310; Shelton v. Timmons, 189 Ala. 289, 66 So. 9; Coffey v. Norwood, 81 Ala. 512, 513, 8 So. 199 (supra); McLarin v. Anderson, 109 Ala. 571, 19 So. 982.
Curry Kirk, Carrollton, for appellees Pickens County Nursing Home, Inc., a Corp., and The Medical Clinic Board of the Town of Reform, a Corp.
Inzer, Suttle, Inzer Pruett, Gadsden, for appellee The American National Bank of Gadsden.
Rosen, Wright, Harwood Albright, P. A., Tuscaloosa, for appellee Fountain Homes, Inc.
The debtor is a necessary party to a bill of complaint filed by a Judgment Creditor to reach and subject assets conveyed or transferred by him, where the claim at the time of the conveyance or transfer was unliquidated and uncertain. Powe v. McLeod Co., 76 Ala. 418; Harris v. Moore, 72 Ala. 507. A final judgment disposing of the case and allowing the defendant "to go hence" is essential to confer jurisdiction on an appeal to the Supreme Court. Title 7, Section 754, Code of Alabama, Recompiled 1958; Wallace v. Screws, 225 Ala. 187, 142 So.2d 572. A decree dismissing a bill in equity without prejudice is not a "Final Decree of Dismissal" and will not support an appeal. Taylor v. Major Finance Company, Inc., 289 Ala. 458, 268 So.2d 738; Burger In A Hurry, Inc. v. Green Grove, Inc., 280 Ala. 341, 194 So.2d 90; Vacalis v. Lowry, 279 Ala. 264, 184 So.2d 345. The judgment did not tax the costs, and this, for the purpose of an appeal, was essential to the finality of the judgment. There should have been an order of court dismissing the case, taxing the costs and directing execution to issue for collection of the costs to make the judgment complete and final. Mitchell v. National Life and Accident Insurance Co., 30 Ala. App. 301, 5 So.2d 115, certiorari denied, 242 Ala. 135, 5 So.2d 116; Gentry v. Swann Chemical Co., 234 Ala. 313, 174 So.2d 531; Wallace v. Screws, 225 Ala. 187, 142 So.2d 572 (supra).
A court of equity may refuse relief by applying the doctrine of laches even though the claim be not barred by the statute of limitations. McCary v. Robinson, 272 Ala. 123, 130 So.2d 25 (1961); Multer v. Multer, 280 Ala. 458, 196 So.2d 105 (1967). Application of the doctrine of laches must be determined by the particular circumstances of each case, and the question is addressed to the sound discretion of the chancellor in each case. Salmon, Adm'r v. Wynn, Adm'r, 153 Ala. 538, 45 So. 133 (1907); Creel v. Baggett Transportation Co., 284 Ala. 47, 221 So.2d 683 (1969). Decrees are to be construed like any other written instrument and it is proper to look at the record and pleadings to interpret a decree. Johnson v. Harrison, 272 Ala. 210, 130 So.2d 35 (1961); Lee v. Lee, 283 Ala. 275, 215 So.2d 718 (1968).
This case was tried before the adoption of the Rules of Civil Procedure. This is an appeal from the judgment of the trial court dismissing the bill of complaint as amended. The sole assignment of error is that the court erred in its judgment.
On November 1, 1967, a judgment was rendered by the Circuit Court of Montgomery County in favor of Gilmore, Farris and Associates against the Pickens County Nursing Home for $6,500 plus costs. The certificate of judgment was filed in office of the Judge of Probate of Pickens County on July 26, 1968. Execution was duly issued on the judgment and returned by the sheriff, "No property found."
Pickens County Nursing Home, Inc., a corporation, was organized under the laws of Alabama on July 11, 1962. It was dissolved by the stockholders on September 13, 1966. The dissolution instrument was filed in the Probate Judge's office in Pickens County on October 7, 1967. Pickens County Nursing Home deeded certain described real estate in Pickens County to the Medical Clinic Board of the Town of Reform on May 23, 1966, in consideration of $50,000. This deed is the subject matter of this suit. It is claimed by Gilmore that the deed was a fraudulent conveyance. The prayer for relief sought to have the deed declared null and void.
The principal issue is whether Pickens County Nursing Home (the grantor) is a necessary and indispensable party to the bill to have the conveyance set aside. It is without dispute in the pleadings that Pickens County Nursing Home is a nonentity. Title 10, § 21(86), Code of Alabama 1940, Recompiled 1958. No petition for continuance beyond the five-year period in accordance with the statute was filed. Any action against the Pickens County Nursing Home is abated and was properly dismissed. Gary Furniture and Appliance Co., Inc. v. Skinner, 288 Ala. 617, 264 So.2d 174 (1972). However, Gilmore's case does not sink or swim because no action against Pickens County Nursing Home will lie. It is a proper party to the suit but it is not a necessary and indispensable party thereto. The deed to the Medical Clinic Board of the Town of Reform from Pickens County Nursing Home passed the legal title to the property.
This court said in Trotter v. Brown, 232 Ala. 147, 167 So. 310 (1936):
"If the transfer passes the legal title, the grantor is not a necessary party . . . but is a proper party, at the suit of a creditor in equity to vacate it and subject the property to the payment of the debt. [Citing cases] But if the legal title remained in the fraudulent grantor, he is a necessary party to bring that title before the court."
It was error to dismiss the action against the Medical Clinic Board of the Town of Reform, the grantee named in the deed. The grantee cannot be prejudiced by not having the grantor joined in the lawsuit. The grantee can set up any defense to the demand of Gilmore, the judgment creditor, which the grantor Nursing Home could set up if it were a party to the suit. Coffey, Adm'r. v. Norwood Norwood, 81 Ala. 512, 8 So. 199 (1886); Headley v. Headley, 264 Ala. 383, 88 So.2d 341 (1956).
Reversed and remanded.
HEFLIN, C. J., and MERRILL, MADDOX and McCALL, JJ., concur.