8 Wend. 339 | Court for the Trial of Impeachments and Correction of Errors | 1831
The following opinions were delivered:
The bill filed by the respondents is not drawn with technical precision, but the object clearly is to call upon the appellant to discover the consideration of the mortgage, and to answer whether it is not fraudulent and void; and if valid, then that the appellant may be compelled to receive what should appear to be justly and equitably due. The bill contains a prayer for specific relief, and also the gem eral prayer. The specific relief prayed for is to be permitted to redeem; under the general prayer, the complainant is entitled to any relief which is consistent with the case made in the bill, even though inconsistent with the specific relief prayed for. I Johns. Ch. R. 117, and cases there cited. The bill calls for a discovery, that the court may judge whether there was any consideration, or whether the mortgage be not fraudulent; and it charges'that when the mortgage was given there was nothing due to Bailey from Green. There is a case made by the bill, therefore, which if supported by proof, is sufficient to sustain the decree. The defendant in the court below was not taken by surprise; he understood that the complainants had alleged fraud in taking the mortgage, and that there was. no consideration for it. The answer and the proof both relate to the question of consideration and of fraud in the mortgage, as well as to the amount claimed to be due by the defendant. From the testimony it appears that Green, in embarrassed circumstances, executed to Bailey, his brother-in-law, a mortgage upon nearly all his property for the payment of $300, when in point of fact, there was nothing due. Bailey had signed a note with Green for $100. I can see no objection to a surety’s taking reasonable security for a responsibility incurred ; but to secure $100, it should not cover $5 or $600 worth of property, nor be conditioned for three times the amount of the responsibility. The fact that complete indemnity was refused is strong proof of fraud. The mortgage was clearly
It was, however, further objected, that the complainants in the court below had no right to the aid of a court of equity to enforce an execution at law for several reasons. 1. It was said that the judgments are not judgments of a court of common law. One of the principles established in the case of Hendricks v. Robinson, 2 Johns. Ch. R. 296, is, that a court of chancery ought to lend its aid to a judgment creditor to enforce a judgment at law, by compelling a discovery and account, against the debtor, or any other person who may have placed the debtor’s property beyond the reach of an execution at law. In Brinkerhoof v. Brown, 4 Johns. Ch. R. 671, it was decided that the true rule is, “ That to procure relief in equity by a bill brought to assist the execution of a judgment at law, the creditor must shew that he has proceeded at law to the extent necessary to give him a complete title. If he seeks aid as to real estate, he must shew a judgment creating a lien upon such estate; if he seeks aid in respect to personal estate, he must shew an execution giving him a legal preference or lien upon the chattels.” And in Brinkerhoof v. Brown, 6 Johns. Ch. R. 139, it was held, that different judgment creditors may unite in one bill for discovery and account, to remove impediments at law created by the fraud of their common debtor.
There is nothing in these cases defining the courts in which the judgments must be entered to be entitled to this aid, only that they must be judgments at law. A justice’s court is a court of law; it is created by statute, and so is the court of common pleas. But it is said, it is not a court of record; this aid is not confined to judgments in courts of record. Justices’ courts are an highly important branch of our judicial estaJb
2. It was objected that these judgments were ob’ained upon attachments. When suits are commenced by attachments, they are not therefore mere proceedings in rem; the judgment is a valid judgment, and may be enforced by execution in the same manner as if the defendants had appeared. It has been decided in the supreme court that such 'a judgment creditor-may redeem, if his judgment is a lien upon the land sold, and that a judgment obtained upon attachment is of equal force with one rendered upon personal notice, except as to the .defendant’s right of set off. 5 Cowen, 17. The judgment is conclusive, except that in an action upon that judgment, or in any analogous proceeding, a defence may be made to it. It cannot be questioned collaterally in any other manner, nor can execution be stayed. From these remarks and the cases above referred to, the objections are untenable, that the amount is too small, and that the plaintiffs could not unite their claims.
3. The third objection under the appellant’s second point was that the judgments are satisfied by the sale of property. This is not quite true in point of fact; but if it were, it would not in this case be a Valid objection to the plaintiff’s right to the relief sought by their bill. They wish to remove an impediment to their quiet enjoyment of the property purchased, the defendant’s mortgage casting a cloud upon the title to it. The plaintiffs in the court below state that the sale of the property mortgaged was void and of no effect as to them; so says the defendant; the circuit judge says the sale was valid; and the chancellor understands the supreme court as having
Another point relied on by the appellant was, that the property passed to Bailey, as assignee of Green, by virtue of the proceedings under the act for the discharge of the persons of insolvent debtors. The insolvent presented his petition on the 17th October, 1827, and the property was assigned on the 15th December thereafter. Intermediate these two days attachments were issued, the property seised, judgments obtained, executions issued, and the property sold. The seisure and sale of the property, says the appellant, was illegal, because it was the fund set apart for the creditors generally. I am unable to see how the creditors had obtained any lien upon this property ; there had been no act of the officer deciding the right of the insolvent to his discharge, or of the creditors generally to the property ; and until the property is assigned, it is subject to the control of the insolvent. He may sell it, and though it may be improper in him to do so, the purchaser acquires a valid title. The insolvent is not bound to prosecute his proceedings ; and if he does so, it is not a matter of course that he is to be discharged, at least, in contemplation of law. The title to the property cannot be effected until it is assigned according to the statute. The assignee is not ac
On all the grounds taken by the appellant, I am of opinion he has failed, and that the decree of the chancellor, affirming the decree of the circuit judge, should be affirmed, with costs.
There appears to me to be but a single question to be considered in this case, viz. was the conveyance of the property to Bailey made for the purpose of defrauding the creditors of Green, or was it a fair transaction?
The proof in these cases must, in most instances, depend on circumstances connected with the transaction, and is generally presumptive and not direct. It unfortunately rarely occurs that direct testimony is obtained in cases of the kind under consideration, because where fraud is intended, disinterested persons are not let into the motives of the parties, and those immediately interested answer no further than they are compelled to do, and that in general terms, avoiding the question as far as the ingenuity of counsel will permit. “ All deceitful practices, and artful devices, contrary to the plain rules of common honesty, are frauds at common law, and punishable there; but for some frauds or deceits there is no remedy
1. The mortgage professing to be for the payment of three hundred dollars, when no such sum was due the morgagee. Here the smallness of consideration, which at most was only for the responsibility of one hundred dollars, brings the case» within the above rule; and the improbability that any sane man would proffer a security, unsolicited, as the appellant avers it was, of three hundred dollars for the loan of another’s credit for one hundred, is entirely unaccountable according to the plain.rules of common honesty. 2. The aprellant’s laconic question to Blake, the counsel of Green, when he handed him the mortgage, if it was right,” and his answer that it was, seems to indicate that he understood the object and intent of the transaction. 3. One of the objects no doubt was to secure Bailey for his responsibility to Palmer, but admitting this, there was fraud as to the balance in respect to creditors ; and this is evident from the fact that property amounting to such balance was, after being sold by Green at Syracuse, released, and the release antidated to agree with the time of the transaction. 4. The conditions of the mortgage also, that Green should pay the three hundred dollars on the 1st of -January, jess than five months from date, when the note in which Bailey was surety was not payable before the 23d of July eleven months from date, is a strong indication that more was meant than the mere security of the one hundred dollars to Palmer. 5. There having been no delivery of the property, as admitted by the appellant, and no provision in the mortgage that it should remain in the hands of Green, is another strong badge of fraud. “ Possession not going with deeds is admit
If, then, the appellant knew of the low credit of Green when he executed the mortgage, that instrument must have been given in contemplation of bankruptcy, and in such case it has been held, in Loche Hinning, 3 Mass. R. 325, that “ a conveyance of property- by a debtor to his creditor in contemplation of bankruptcy, by giving a preference among creditors, is fraudulent, notwithstanding it may be made in satisfaction of a bona fide debtor the conveyance, with such knowledge, must have been made for the purpose of deceiving the creditors into a belief that Green was solvent, particularly when permitted to retain the property in his own possession and apparently exercising ownership over it; and in such case it was held, in Holmes v. Crane, 2 Pick. R. 607, that “ if a sale of chattels, whether absolute or conditional, be made for the purpose of deceiving creditors and giving a false credit to the vendor, it is fraudulent and void as to them.”
Under all the circumstances of the case, I am unable to divest my mind of the belief that the whole transaction was tainted with fraud towards the creditors of Green; and even viewing the matter in the mqst favorable light, and supposing that the acts of the appellant, Bailey, were not intended to deceive or defraud, there cannot rest a doubt on any mind, as it appears to me, that the acts and intentions of Green were fraudulent, and therefore that the mortgage is void as to the respondents. I am therefore of opinion that the decree of the chancellor should be affirmed.
Without detaining the court by recapitulating the facts of this case, I think they abundantly sustain the allegation of fraud. The question then arises, is the bill so drawn as to sustain the decree \
It was also urged by the appellant’s counsel, that inasmuch as Green has presented his petition, and applied for his discharge under the act exempting bis body from imprisonment, previous to the respondents recovering judgments and suing out and levying their executions, his assignment under that act related back to the time of presenting the petition, and carried his property with it, notwithstanding the intermediate levy and sale by virtue of the executions. There is
The main questions in this case are—whether the mortgage from Green to Bailey was fraudulent ? and whether the application by Green' for the benefit of the insolvent laws, and the filing of the inventory of his debts and property was not such an appropriation of his estate for the benefit of all his creditors, as would forbid partial collections under proceedings instituted subsequent to the filing such inventory ?
The chancellor, in deciding the first question, assumes the fact that the mortgage was taken for a pretended debt, when nothing was due. I have not been able to understand the matter in this way. It appears to me, that at the date of the mortgage, Bailey was at least responsible to Wiggins for $75, and to Palmer for $100, besides some unliquidated small demands claimed as due from Green. The mortgage was made in pursuance of the promise of Green, at the time the Palmer note was executed, and avowedly as security for all liabilities and dealings between the parties. Whatever may have been the views of Green, no designed participation on the part of Bailey, to defraud his creditors, has been brought home to Bailey. It does not appear that the mortgage has ever produced any embarrassment in the collection of any debt due by Green, from the time of its date to the time of his petition for the benefit of the act, or that it was used in any way to the injury of any creditor. For a long time before the issuing of the attachments, no more had been claimed on the mortgage than an indemnity against the Palmer note, a small balance of accounts, and some compensation for time and trouble. How then does it appe >r that this mortgage has been unfairly or dishonestly used to the injury of any one ? or where is the evidence to show that Bailey so understood or intended it? I
Upon the second point, how far the application for the benefit of the act ought to operate as a bar to partial payments, I shall not undertake to decide with much confidence; but it does seem to me that when an inventory is made and signed according to the act, it must be considered as a distinct appropriation and virtual assignment of all such property for the specific purpose of satisfying the debts of the insolvent in rateable proportions, and cannot be subject to a scramble for priority of judgments and waste of the estate by costs. I consider it a mere deposit with the officer to whom the application is made, until the assignee shall be appointed to dispose of the property and distribute the avails.
Whatever doubts I may feel in differing in opinion from the learned judge and chancellor who have passed upon this question, (and no one entertains a higher opinion of their talents and learning than myself,) I find it impossible to resist the conclusion that they have erred in this case, and that their decisions ought to be reversed.