— It is laid down generally, where a plaintiff sues both at law and in equity for the same thing, the latter tribunal will compel him to elect in which Court he will proceed. But before an election will be ordered, it is said the defendant must have filed a sufficient answer, and the time for excepting elapsed. After the order is made, the plaintiff is not at liberty to proceéd, either at law or in equity until he has elected; yet, if the order has been unadvisedly made, the plaintiff may move to discharge it. Further, it is said a plaintiff is sometimes allowed to elect specifically, that is, to proceed to a certain extent in one Court, without prejudice to his proceeding in the other Court. [1 Smith’s Ch. Prac. 561-3, and cases there cited; 1 Hoffm. Ch. Prac. 342-4, and cases there cited.]
So where the plaintiff has obtained a judgment at law, and at the same time filed a bill in Chancery, on the coming in of the answer, he will be put to his election, either to proceed at law on the judgment, or in the suit in equity. [Rogers v. Vosburgh, 4 Johns. Ch. Rep. 84 ; Cockerell v. Cholmeley, 1 Russ. & M. Rep. 418; 3 Russ. Rep. 565; 6 Bligh. N. S. 120; Livingston v. Kane, 3 John. Ch. Rep. 22; Gibbs v. Perkinson, 4 H. & Munf. Rep 415 ]
The thirty-sixth rule, “for the regulation of the practice in Chancery,” is as follows: “ Where a suit at law and a bill in Chancery are instituted for the same claim or demand, the defendant, on suggestion, supported by affidavit, may move the Court to inspect the records, and if it appear that the two suits are for one and the same cause of action, it shall be ordered that the plaintiff elect in which he will proceed, and that he dismiss the other.” Under this rule, the defendant, Borland, moved the Circuit Court to compel the complainant to dismiss the levy of the pluries fi.fas. in respect to sundry slaves embraced in the sale made by J. H. Walker to Borland, in 1S40, which it is the object of the complainant’s bill, among other things, to annul; or, if the defendant elected to proceed thereupon, then to dismiss his bilL pro tanto. The complainant elected the alternative, and the Chancellor confirmed the order of election, under the impression that this Court had adjudged it to be proper. True, when the case of the Planters and Merchants’ Bank of Mobile v. Borland, 5 Ala. Rep. 531, growing *943out of the levy referred to, was here, the learned Judge who delivered the opinion of the Court, intimated in no equivocal-terms, that the powers of a Court of law, were adequate to coerce an election by the plaintiff, where a suit for the same claim or demand, was pending there and in a Court of Equity at the same time. And the fair inference from what he said, is, that the order made by the tribunal first acting upon the subject ia conclusive. Neither my brother Ormond, nor myself, supposed, the opinion of our late respected associate went so far, as a more critical examination shows. We can only account for our misapprehension'of it, when read in consultation, from the fact, that the propriety of the election was not regarded by the Court, as a material point in the cause, and whatever might have been our conclusion thereupon, would not have influenced our judgment, as will hereafter appear.
In the Planters and Merchants’ Bank of Mobile v. Willis & Co., 5 Ala. Rep. 770, the same question was raised, and we then said that the regularity of the order of election was not then presented for revision. Further, “That order is inconclusive of the cause in Chancery, until that Court shall act upon it, and give effect to the forced election of the plaintiff!. This being the case, it is not the subject of a revision by an appeal or writ of error; besides, if it were, the writ of error which has been sued out, does not complain of it, but seeks only the reversal of the judgment, on the trial of the right of property. The direction in regard to the suit in equity, could not, in the slightest degree, have affected the result of the case before us; whether right or wrong, was wholly immaterial to its decision. The reversal of the judgment, will not annul the order of election; that will still continue operative, as far as the 'Court of law could, make it so.
“ But the plaintiff cannot be irreparably prejudiced by the order of the Circuit Court; if erroneous, (as we incline to think it is,) it may be vacated by mandamus, addressed to that tribunal, or the Court of Chancery. And the latter may be required to proceed as if no election had ever been made; and this, although a' decree dismissing the bill may Have been rendered, under the influence of the plaintiff’s election.”
These remarks apply with all force to the case against Bor-land, and show what was there said as to the power of the Cir-*944cnit Court to order an election, and the conclusiveness of such an order is a mere obiter dictum, and is "not a resolution or determination of the Court, or a direct solemn opinion of the judge from whom it dropped ; no formed, decisive resolution, no adjudication, no professed or deliberate determination.” [Rana on Legal Judgment, 37.] “An opinion given in Court, says Chief Justice Vaughan, “if not necessary to the judgment given of record, but that it might have been as well given, if no such, or a contrary opinion had been broached, is no judicial opinion, no more than a gratis dictum[Ibid.]
We are satisfied with what was said in the Planters and Merchants’ Bank v. Willis & Co., and from the view taken of the effect of the dictum in Borland’s case, it results that the Chancellor was left free to exercise his judgment upon the motion to order an election. Whether the order which he made was such as the identity of the cases and their nature required, will perhaps be shown by what has been, and will be said in this opinion. It is unnecessary to be more particular upon this point, because it is clearly inferrable from the case of Willis & Co., that the propriety of the order cannot be revised upon a writ of error, which complains of the dismissal of the complainant’s bill, as to all the defendants. The remedy by which, the order of election as to Borland maybe annulled, (if necessary,) we have seen, is a mandamus acting directly upon it.
In Doe ex dem. Duval’s heirs v. McLoskey, 1 Ala. Rep. N. S. 708, the motion to compel an election and consequent proceeding in the Circuit Court, took place, when that tribunal exercised jurisdiction, both at law and in equity; the papers in both causes were before the Court at the same time, and an order on either side of the Court might be made effectual, (so far as appropriate,) in a cause pending on the other What was said in that cause, cannot consequently be regarded as conclusive, upon a case arising since the severance of the jurisdiction, and the assignment of law and equity to distinct judges.
2. The object of the complainant’s bill, among other things, is, to set aside the sales made by George and J. H. Walker, of their property to Steele and Borland, and the mortgages executed by Lowe to Willis & Co. and Pylant, upon the allegations that the former were fraudulent in their inception, as *945against creditors, and that the latter were either fraudulent when executed, or were held up with the view of delaying or defeating the creditors of the, mortgagor. These allegations, unless affected by something stated in the bill, were sufficient to give to the Court jurisdiction at the suit of a creditor of a fraudulent grantor. Fraud, it is said, is a fruitful source of equity jurisdiction. Sometimes the wrong which it does, can only be repaired, and justice administered through a Court of Chancery ; while in other cases it exercises a jurisdiction concurrently with law. [1 Story’s Eq. chap. 6 and 7, particularly pp. 417-8-9-20-1-2; 4 Call’s Rep. 253; 2 Har. & John. Rep. 487; Litt. Sel. Ca. 164; 4 Monr. Rep. 103; 4 Rand.Rep. 282; 4 Mason’s Rep. 349; 1 John. Ch. Rep. 478.] When Courts of equity and law have concurrent jurisdiction of the matter in dispute, the Court which takes jurisdiction settles the matter conclusively. [2 Munf. Rep. 34; 3 Yerger’s Rep. 167.] So, although property conveyed by a deed fraudulent and void, is liable under execution against the fraudulent debtor, yet equity will grant relief, by clearing away the impediment. [4 Bibb’s Rep. 166.]
The levy of the execution on a part of the property embraced by the sales and mortgages in question, did not take from the complainant the right to go into equity, in order to vacate these several conveyances in toto. The only effect of the levies on the remedy in Chancery, would be, upon the interposition of a claim of property, to compel the plaintiff to elect, (if the matters in controversy were identical,) whether the suit should be prosecuted at law or in equity. But if this question were otherwise doubtful, it is settled by the sixth section of the act of 1828, "the better to provide for the trial of the right of property, and for other purposes.” [Clay’s Dig. 214.] That section is as follows: “ Proceedings for the trial of the right of property, shall in no case prevent the plaintiff from going on to make his money out of other property than that levied on and claimed, if to be found; but the supersedeas, by appeal or writ of error, shall only apply to the property so levied on and claimed.” The remedy to be pursued, to reach other property of the debtor is not pointed out; the act merely secures the right of the creditor, and he may adopt such remedy as the *946law recognizes as appropriate, whether it be in equity or at law.
Conceding, that to entitle a judgment creditor to come into equity, to subject the equitable estate of his debtor, he should have “pursued his legal remedies to every available extent,” without being able to obtain satisfaction, and still we think the equity of the bill may be supported. The bill is not framed upon the hypothesis, that the defendants in the judgment have an equitable interest in the property they have respectively transferred; but upon the assumption that the several transactions impugned, were intended “to delay, hinder and defraud creditors.” If this be the true intent and purpose of the judgment debtors, they have no interest which they could assert in equity; for being in pari delicto with those who claim as their assignees, Chancery would not entertain a bill in their favor, but leave them to adjust as they could, the rights they set up, without lending its aid. But the right of the creditor to subject property of his debtor fraudulently conveyed, -is founded in that principle of the common law, which enjoins integrityas a virtue paramount to generosity, and denounces fraud as incompatible with honesty and fair dealing. This principle is re-affirmed by our statute of frauds, which declares, that every gift, grant, or conveyance, of lands, &c. goods and chattels, &c.; and every bond, suit, &c. had or made, and contrived of malice, fraud, covin, collusion or guile, to the intent or purpose to delay, hinder, or defraud creditors, &c. shall be clearly and utterly void, &c.
If a gift, grant, or conveyance, be void as it respects creditors, it is at least competent to levy on and sell the personalty under execution, however the law may be as it regards land. But, although we have seen the creditor has this legal right, yet he is not obliged to exercise it where the debtor has embarrassed his title by making a fraudulent conveyance. Under such circumstances, he may go into equity, and ask that the conveyance may be set aside. And in such case, if the plaintiff makes out the fraud, the decree will not stop merely by annulling the deed, but it will order the sale of the property, and provide for the payment of his debt. [Garland v. Rives, 4 Rand. Rep. 282.]
The right to disembarrass the title before the property is sold to satisfy the judgment, is valuable to the creditor; if he *947were compelled to sell it under execution, incumbered with a conveyance, or lien, supposed to be fraudulent, comparatively few would be inclined to purchase, arid’they at a depreciated price. This consideration, apart from all .others, is a potent argument in favor of the jurisdiction of equity.
3. Many witnesses were examined, at the instance of the complainant, with the view of showing that the several sales and mortgages in question were fraudulent; their testimony, so far as material, may be thus condensed, viz : In September, 1840, both George and J. H. Walker were much in debt, and believed to be insolvent. In that month they both sold their entire real and personal estate; the former to his brother-in-law, David A. Steele, for a price agreed, which was to be paid in ten annual instalments. The employment of the slaves and the use of the land, &e. sold by George Walker, would pay the stipulated price, one of the witnesses says, in six years, another in seven, and others in from, six to eight years. George W. has received the proceeds of wood sold from the land convey ed, though he may have'accounted to Steele therefor. About the same time, J. H. Walker sold all his property to A. Bor-land, his father-in-law, for a price which Borland represented differently at different times; but taking the largest sum as indicating the price, it was thought that the property could be so employed as to pay for itself in from six to ten years. Bor-land’s contract obliged him to pay some debts owing by his vendor, and the remainder of the purchase money at different periods in the future; the last of which payments had twelve years to run. Borland said his object in making the purchase was to save tire property, and he thought he could make it pay . for itself on the credit obtained.
In 1841, J. H. W. acted professedly as Borland’s overseer. After Steele’s purchase, he employed overseers on the plantation conveyed to him by G. W. Since the respective purchases, Borland and Steele have shipped the cotton crops in their names. The witnesses know of no change of property from either of the vendors — they each live where they did in 1840, have their carriages, house servants, &e. G. W. has since exercised an apparent control over the wagons employed in hauling wood from the land he sold to Steele, (to the river for sale,) as also over blacksmiths, and a shop which were embraced in his sale *948to him. The Walkers, Borland and Steele, live in the neighborhood of each other, where they did in September, 1840.
In Borland v. Walker, et al. at this term, upon proof1 by no . means more unfavorable to the plaintiff, in that case, than the evidence above recited, it was determined that the contract between J. H. Walker and Borland, was intended “to delay, hinder, or defraud” the creditors of the former, and was consequently void. Without recapitulating the reasoning there ém-ployed by the Court, we will content ourselves by referring to the opinion, and adopt it as an authority for the same conclusion in the present case.
Every argument employed to show the invalidity of Bor-land’s purchase, applies with all force to the sale by G. Walker to Steele. There too, the contracting parties were nearly connected by affinity, lived, and still continue to live, in the same vicinity; the vendor was greatly indebted, by some persons imputed insolvent; after the sale, there was no visible, notorious change of possession: but whatever control the vendee exercised, in employing overseers, and selling the cotton crops, &c., if acts of unequivocal significance as between the parties themselves, were not such indicia of a renunciation ofpossession as would charge the creditors of the vendor with notice. Jlgain, the vendor continued, long after the commencement of this suit, and perhaps still does, to occupy the house in which he resided on a part of the land conveyed; himself and family are attended by the same servants, ride in the same carriage, and use the same furniture. Further, he appears to direct the wagons employed in haulin'g wood from his land to the river, to receive money for the wood, and to use the accounts due the blacksmith’s shop in paying his own debts. To all this it may be added, that property is sold at a price payable in ten animal instalments, which may be paid in six or eight years by the profits derivable from its employment and use; thus placing it in the power of the vendee to stipulate with the creditors of the vendor, to receive their demands on terms less favorable than by law they were entitled, rather than encounter the risk of an entire loss, or a delay, which might in many cases operate great inconvenience. This is a mere condensation of the argument, suggested by the facts. We need not amplify it; this was done *949in Borland v. Walker, et al, and resting,upon that case, we are constrained to conclude that the conveyance by G. Walker to Steele, tends “to delay, hinder, or defraud” the vendor’s creditors, and must be set aside.
4. The mortgage from Lowe to Willis & Co., was before this Court in the Planters and Merchants’ Bank of Mobile v. Willis & Co., cited above. There is nothing upon its face that indicates its invalidity, and the proof does not show that it was fraudulent ab initio. If the debt intended to be secured, has been paid so as to extinguish the security, then the property embraced by the mortgage is discharged from it, and if there are no liens superior to the plaintiff’s the property should be subjected to the satisfaction of the judgment, sought to be collected. We 'express ourselves thus cautiously upon this point, because the plaintiff’s counsel has furnished a brief of what he calls an answer of one of the firm of Willis & Co., in which that defendant admits the payment of the debt due the firm, but perhaps shows that it was not paid by the .mortgagee, but by a third person, to whom the debt and mortgage were assigned. Now this answer is not found in the record before us, but it most probably remains in the file in the Court of Chancery. Be this as it may, we think it unnecessary to add more upon the point, than refer to the case last cited, in which we considered the rights of the creditor in connection with facts similar to those supposed to be stated in the answer.
In respect to the mortgage frbm Lowe to Pylant, though impugned by the bill, its validity has ceased to be a matter in controversy by the death of the mortgagee, and abatement of the suit as to him.
5. We have repeatedly had occasion to remark upon the doctrine of multifariousness, as applicable to bills in Chancery, and have heretofore shown the utter impracticability of laying down any general rules, by which with unerring certainty, it may, in all cases, be determined, whether the objection is well taken. [Kennedy’s heirs & Exr’s. v. Kennedy’s heirs, 2 Ala. Rep. 608; Lewen v. Stone, et al. 3 Id. 490.] Mr. Justice Story says, “ The conclusion to which a close survey of all the authorities will conduct us,, seems to be, that there is not any positive inflexible rule, as to what, in the sense of *950Courts of equity, constitutes multifariousness, which is fatal to the suit on demurrer. These Courts have always exercised a sound discretion in determining, whether the subject matters of the suit are properly joined, or not; and whether the parties, plaintiffs or defendants, are also properly joined or not.” [Story’s Eq. Plead. 413.]
It is said, that a demurrer for multifariousness will not be , sustained, where the parties (either plaintiffs or defendants) have one common interest touching the matter of the bill, although they claim under distinct titles, and have independent interests. [Story’s Eq. Plead. 120-1, 233.] Hence, it has been held, that several judgment creditors may join in one bill against their common debtor and his grantees, to remove impediments to their remedy created by the fraud of their debtor, in conveying his property to several grantees, although they take by separate conveyances, and no joint fraud in any transaction is charged against them all. In such a case, it is said, the fraud equally, affects all the plaintiffs, and all the defendants are implicated in it in different degrees and proportions, and therefore are liable to be'.jointly sued. [Ib. 233, & notes, 409.]
Jlgain; it is said, that although the defendants may not have, a coextensive common interest, but their interest may be derived under different instruments, if the general object of the bill will be promoted by their being united in a single suit, the Court will not hesitate to sustain the bill against all of them. [Story’s Eq. Plead. 410, and cases cited in the notes.] By a common right, or interest, we are not to understand one which is necessarily joint, it may be a right or interest which is common to, or concerns all the defendants, though perhaps in unequal degrees. [Id. 413, note 1.]
In the present case, joint judgments were recovered by the complainant against 6. Walker, J. H. Walker, and Robert Lowe, all whom, it is alledged, have united in a fraudulent purpose to defeat the collection of these judgments: and to effect that end, have each made transfers of all their property. The two former, by absolute sales, professing to pass the possession and property to their respective vendees ; the latter, by mortgages. All these transactions are charged to have been fraudulent, not only on the part of the defendants in the judg*951ment, but of their vendees and mortgagees. Here, then, it is apparent, that the three defendants last named, have a common interest in the leading object of the bill, viz: the satisfaction of the judgments, and they are charged with a joint participation in the design to defraud, which led to the supposed fraudulent transfers. This being the case, we think the authorities cited, clearly warranted the plaintiff in joining them in one suit; especially, as by thus uniting them, their rights could not be prejudiced, by subjecting them to increased costs, or protracting litigation. If several bills were filed against each of the defendants in the judgment, each of those bills would, in all probability, be almost as voluminous as one bill embracing all; and about the same number of depositions would be taken in each, as in a single suit.
As then a demurrer for multifariousness would not be sustained, for the reason merely, that the bill attacked the transfers of property made to the three defendants in the judgments, on the ground of fraud, we think the objection cannot be successfully interposed by those who claim under them, derivatively. The citations already made, sustain us in this conclusion.
6. A motion for the continuance of a cause, addresses itself to the discretion of the Court in which it is made; and however unwisely that discretion may be exercised, it cannot be revised by an appellate Court.
7. The motion to suppress the depositions, was properly overruled. When the commission issued under which they were taken, but one of the defendants had answered, and his counsel was duly notified of the time and place where the commission would be executed. The other defendants were in default, and a decree pro confesso had been rendered against them; this being their predicament, they cannot insist on a want of notice; but it was competent for the plaintiff to make out his case by testimony taken ex parte. [Clay’s Dig. 351, § 39; Wilkins & Hall v. Wilkins, 4 Porter’s Rep. 249.]
The defendants having afterwards answered, and the de-creepro confesso thereupon set aside, did not authorize the rejection of the depositions or render them incompetent. If such an eil'ect were given to the answers, then the neglect, or *952caprice of the defendants might occasion expense or inconvenience to the complainant, and perhaps injury; especially, if the witnesses, or some of them, were to die or remove from the country, so that their testimony could not be taken again. The correct practice in such case, would be upon the decree pro confesso being set aside, for tlie defendants who filed answers to move upon a proper showing for leave to take the depositions of the same witnessess at the defendant’s instance, and a commission could issue on such terms as would amply protect the complainant.
It is unnecessary to consider other points, suggested by the argument, or presented upon the record. The view already taken, we think, will lead to an adjustment of the matters in controversy. We have only to add, that the decree is reversed, and as we cannot know what disposition has been made of the cases of the .trial of the right of property which were pending at law, we think it safer for that, if for no other reason, not to render a final decree here. The cause is therefore remanded.