11 Conn. 369 | Conn. | 1836
One ground taken in support of this demurrer, is, that it does not appear from the facts stated in the bill, that the plaintiff, as the executor of Moses Botsford, has any interest whatever.
It is stated in the bill, that Amos and George Shepard were indebted to the plaintiff, as executor; and that, in that capacity, he recovered a judgment against them. It would seem, under this demurrer at least, that any enquiry into the original cause of action is precluded ; that it is res adjudicata, and is merged in the judgment.
True it is, these defendants were not parties to that judgment, and are not bound by it. It is open to be impeached by them, on the ground of fraud, or collusion, or for any other sufficient cause. But the enquiry here is, whether the plaintiff has stated a case, which shows prima facie, that he has an interest 7 Whether admitting all the facts stated in the bill to be true, (and they are all admitted by the demurrer,) a case is presented for the defendants to answer 7 Upon this point we entertain no doubt. We think such a case is stated. And indeed, this objection has not been much insisted upon, in the argument.
But it is strongly objected, that the plaintiff has adequate remedy at law; and that the bill contains no averment to the contrary.
In regard to the sufficiency of the averment, it may be remarked, that it need not be stated in terms, that there is not adequate remedy at law. It is enough if it appear from the facta disclosed in the bill, that such remedy does not exist. What then, are the averments contained in this bill 7 It is averred, that the lands in question were purchased and paid for, by Amos and George Shepard ; and that they were in equity the sole proprietors: that they were deeply embarrassed with debts ; and in order to cover and protect the premises from their creditors, they procured the conveyance to be made
But it is said, that for aught that appears, there was abundant personal property of Amos and George Shepard, which might have been taken to satisfy this execution.
It is averred in the bill, that the execution was levied upon the lands in question, in due form of law. This could not be, if sufficient personal property was shown, or to be found within the precincts of the officer. The objection proceeds upon the ground, that the pleader should have set forth every fact, in the bill, which was requisite, in order to constitute a valid levy-every fact, which the return of the officer on the execution, if set forth, would have shown, Can this be necessary? And can this want of detail be insisted on, under a general demurrer? We think not. In Hobart v. Frisbie, 5 Conn. Rep. 592., it was alleged, that the land was duly and legally levied upon, and set off on the execution in due form of law; but it was not averred, that the execution was returned and recorded. And for want of such an averment, the bill was held to be insufficient. And it was also held, that the want of such an averment was not aided, by the allegation that the execution was duly and legally levied ; because, say the Court, “ the expression ‘ duly levied,’’ has no reference or allusion to the acts of the town-clerk.”
But it is further insisted, that for any thing that appears sn this bill, there were other lands of Amos and George Shepard, the legal title to which was in them, and upon which this execution might have been levied;-and that the plaintiff must show, that he has done all which, at law, he could have done,
But the objection now interposed takes broader ground. It is not, that the party has not done all in his power to obtain a title to the lands in question ; but it is, that there might have been, and for aught that is shown, there were, other lands, upon which the execution might have been levied ; and a title to which might have been acquired without the aid of this court.
Does this objection furnish any answer to the plaintiff’s bill? We think not. For we suppose the principle too well settled to admit of controversy, that lands fraudulently conveyed are still open to the creditors of the fraudulent grantor : and that a court of chancery will give its aid to perfect the title of the levying creditor, where such aid is necessary. And we are yet to learn, that it is any defence, either at law or in chancery, that there are other lands, which might have been taken : and that the debtor is not insolvent. All this may be very proper evidence to show, that the conveyance was not fraudulent. But upon what principle it is, that these facts can be set up, by a fraudulent grantee, to protect a conveyance admitted to be fraudulent, we are at a loss to discover.
The superior court is to be advised, that the bill is sufficient.
Demurrer overruled.
