100 Mich. 352 | Mich. | 1894
The complainants filed a bill in the circuit court for the county of Sanilac, in chancery, alleging that on the 8th day of February, 1892, defendant Joseph II. Dillon was engaged in the mercantile business in Minden City, in said county, and was indebted to the complainants in the sum of $600 for goods sold and delivered to him in said business, and that proof of the claim of the complainants had been filed Avith the clerk of the court, as required .by laAv; that, on said 8th day of Feb
The bill further alleged that, on February 11, Joseph H. Dillon went through the form of making an assignment for the benefit of creditors to George W. Thayer, and that the assignment was only partially perfected; that Joseph H. Dillon had other property and assets, to the amount of $2,000, which were not included in the assign
The bill grayed for an injunction and the appointment of a receiver, that the mortgage in the hands of Mess-more be declared fraudulent, and that the defendant Joseph H. Dillon be compelled to account for and turn over to the receiver the property withheld and secreted by him. The bill was filed by leave of the court.
The answers consisted of denials of fraud, and alleged that the mortgage was ujion good consideration, and valid. Defendant Messmore further asserted that he was a Iona fide purchaser without any notice of fraud, and that he had paid value for the mortgage.
The court granted the relief prayed in the bill, and declared the mortgage in the hands of Messmore void. Messmore alone appeals.
The defendant insists that there were legal objections to the granting of the relief under the bill:
*356 1. That the complainants were only general creditors of Joseph. H. Dillon, without judgment or lien, and therefore not authorized to file the bill.
2. That the bill is multifarious.
3. That, inasmuch as the defendant Messmore was in possession of the goods under his mortgage, the assignee had an adequate remedy at law.
4. That the receiver was appointed by a judge at chambers, and such appointment could only be made by the court. '
“ In case there shall be any fraud in the matter of said assignment or in the execution of said trust, or if the assignee shall fail to comply with any of the provisions of this act, or fail or neglect to promptly and faithfully execute said trust, any person interested therein may file his bill in the circuit court in chancery of the proper county for the enforcement of said trust, and the court, in its discretion, may appoint a receiver therein.”
Section 8749, 3 How. Stat., provides that—
“ The circuit court in chancery * * * may, on the application of the assignee or any person interested, make all necessary and proper orders for the management and disposition of the assigned property, * * * the recovery of all property claimed by third persons, and to prevent any fraudulent transfer or change in the property or effects of the assignor, or the alloAvance or payment of any unjust or fraudulent claim out of his estate.”
We think these statutes give sufficient authority to maintain the bill. The creditors of the assignor, through the assignee, have acquired rights in the projmrty assigned in the nature of a lien; and while the law confers upon the assignee the right to recover property, or equities in property, which might be recovered by any of the creditors of said assignor, the case here presented is one in which the assignee refused to perform the duty, and in which it
“Where advantage of multifariousness is desired to be taken by defendants, the desirable practice is for them to present the objection by demurrer, that the court may pass upon it before expense of reference and testimony is incurred. IP, instead of taking this course, they only by their answer reserve the privilege of making the objection at the hearing, when the expenses are already incurred, and when the court is put to the trouble of a full discussion of the case, they cannot complain if the court disregards their objection, unless the nature of the case is such" that justice cannot.be done to the parties upon the pleadings and evidence as then presented. At that stage of the case, the court, instead of the party, is to take the objection of multifariousness; and while it may refuse to render a decree upon multifarious subjects of litigation, in respect to which complete justice cannot be done, it will not, on the other hand, sua sponie take the objection of multifariousness, when it would be merely technical, and when the object for which the parties have incurred their expense, and for which the court has been put to the trouble of a hearing and examination, can be substantially accomplished on the record as it stands."
See, also, Snook v. Pearsall, 95 Mich. 534; Wales v. Newbould, 9 Id. 81.
The decree will be affirmed, with costs.
See supplemental opinion, post, 359.