(after stating the facts.) It is a principle that lies at the foundation of all just government that no man shall be deprived of his life, liberty, or property without
The course of proceedings through which the interveners stand here adjudged to pay over $7,000, on account of an assumed liar bility as sureties on the cross bond the defendant gave to obtain a return to him of the personal property replevied in this action, was not of this character. The action in its inception was the ordinary code action for the recovery of personal property lawfully taken, but wrongfully detained, now commonly called an “action of replevin,” though it resembles more nearly the old “action of detinue.” It was brought by the plaintiff against the defendant, Burton, alone, and the only issue tendered by the complaint when the bond was given, August 28, 1889, was whether the plaintiff or the defendant, Burton, was then entitled to the possession of this personal property.
It is true that the interveners in April, 1890, filed their petition, and became parties to the action, but this was not on account of their possible liability on the cross bond. That was not mentioned in their petition. It was on account of some rights in this property they claimed to have as creditors of the defendant, Burton, and on account of their possible liability on an indemnity bond they had given to the marshal to induce him to seize the property under their executions, some weeks after the cross bond was given. All they sought in their petition was that they might be made parties to the action, that the assignment might be set aside, and “that the respective rights as to said goods of said Platter, trustee, said Burton, and themselves, be adjudicated in this action.” The plaintiff -demurred to the answer of Burton, and, when the cause went to hearing, the only question at issue was, who was entitled to the possession of the personal property at the commencement of the action? Kay v. Noll, 20 Neb. 380, 385, 30 N. W. Rep. 269; Loomis v. Youle, 1 Minn. 175, (Gil. 150;) Wells, Repl. § 94. No cause of action upon the bond upon which this judgment against the interveners is founded had been pleaded. No recovery upon it had been asked. Indeed, it had not been mentioned in the pleadings; and only five of the six sureties on it were parties to the
Xothing can better illustrate the injustice and irregularity of this proceeding Ilian the statement of these facts. jSTo notice of the ground on which the judgment was to be rendered, no opportunity to contest their execution of the bond or their liability upon it, was given to any of these interveners until after the hearing was concluded, and the master’s report filed. To all these they were entitled as a matter of right, by the rales and forms established by the courts for the protection of private rights. 'No rule is more salutary or better settled in the courts than that one may not bring and try his suit upon one cause of action, and recover a judgment or decree upon another. In an action of ejectment he cannot have judgment upon a promissory note which is neither pleaded nor proved; nor can he, in an action of replevin, where the only question at issue is the right to the possession of personal property, without notice, pleading, or proof, recover a decree or judgment upon a bond. A judgment or decree, to be valid, must be according to the allegations and the proofs. This judgment is according to neither, and upon this ground, so far as the interveners are concerned, it must be reversed. Taussig v. Glenn, 51 Fed. Rep. 409, 413, 2 C. C. A. 314; 1 Black, Judgm. § 242.
This disposes of the judgment for money against the interveners; bnt it is claimed by them and by the defendant that the plaintiff was not entitled to the possession of the property or to any judgment against ¡my one, because the assignment was fraudulent and void as to creditors, and numerous errors are assigned because the master did not so find and the court did not so decree. In the rulings here complained of there was no error. The assignment was made April 1, 1889. The plaintiff took and held possession under it until August 19, 1889. During this time he employed the defendant, Burton, as his clerk. The claims of the creditors secured by the assignment amounted to $9,515.61, and the plaintiff had realized from the property, and paid on these secured claims, $2,684.65, when, on August 19, 1889, the defendant, Burton, repudiated his assignment, and held possession of the property remaining for himself. Its.value was $8,000, and plaintiff demanded it. These facts are alleged in the
On August 25, 1889, the plaintiff replevied the property. On August 28,1889, it was returned to the defendant on his cross bond. On April 9, 1890, the interveners filed their petition to be made parties, and asked that the assignment be adjudged void. They filed no other pleadings, and in this petition they alleged that “at the September term last of this court, and on the-day of said term, they obtained judgments against Robert D. Burton, defendant above named, in the following amounts, namely: Eby, Dowden & Co., in the sum of $247.64; Wood Manufacturing Company, in the sum of $613.00; Webb Wooden-Ware Company, in the sum of $574.85; Myer Bros. Drug Company, in the sum of $186.12; L. Sawyer & Co., in the sum of $1,243.60,” — aggregating $2,865.21, and that, under executions upon these judgments, the marshal took the replevied property from Burton, sold it, and satisfied their judgments from the proceeds. At , the hearing, it was proved that these judgments were rendered on the ' confessions of Burton, September 5, 1889.. There were no other allegations or proofs as to the time when the indebtedness shown by ■these judgments was incurred, or that the defendant ever owed any Í other indebtedness not secured by the assignment.
| One who attacks an assignment on the ground that it is fraudulent ■ as to those who become creditors of the assignor subsequent to its execution must allege and prove that the assignor made-the conveyance with the actual intent to defraud, with the intent to put the assigned property out of the reach of debts which he intended thereafter to contract, and which he had reasonable grounds to believe he would not be able to pay, and that he subsequently did contract such debts in pursuance of that fraudulent intent. Even a voluntary conveyance is not fraudulent per se as to subsequent creditors. Horbach v. Hill, 112 U. S. 144, 149, 5 Sup. Ct. Rep. 81; Clark v. Killian, 103 U. S. 766, 769; Wallace v. Penfield, 106 U. S. 260, 1 Sup. Ct. Rep. 216; Graham v. Railroad Co., 102 U. S. 148, 153; Cunningham v. Williams, 42 Ark. 170, 173; Toney v. McGehee, 38 Ark. 419, 427. There are no such allegations or proofs in this record, and the ■question of the validity of this assignment as to subsequent creditors was not raised by anything that appears in it.
One who attacks an assignment on the ground that it is fraudulent as to creditors of the assignor existing at the time of its ex-eciition must allege .and prove that there were such creditors at that time, for a conveyance cannot be fraudulent as to expeditors .unless there are creditors to be defrauded. Horbach v. Hill, supra; Clark v. Killian, supra; Braley v. Byrnes, 20 Minn. 435, 438,
Turning now to the defendant, we have already seen that his answer did not raise the question of the fraudulent character of this assignment as to creditors. The plain (M’s demurrer to it was sustained, and the only remaining question regarding the title or possession of the property is, if the defendant had no creditors not secured by the assignment at the time of its execution, and at the time of the commencement of the action, was the assignment valid as to Min, and did it entitle the plaintiff to the possession of the property under the allegations of his answer? His answer admitted the allegations of the complaint that on April 3, 3889, he made the assignment and delivered the property to the plaintiff, to secure the payment of the claims of the secured creditors; that he was employed as plaintiff’s clerk thereafter, and that in that capacity he was in possession of the property, holding it for (he plaintiff, when he repudiated the contract, on August 19, 1889, and claimed to hold the property for himself; that meanwhile $2,684.65 had been realized under (lie assignment, and paid over to these creditors, and that the balance of (heir debts remained unsecured. The answer alleged no failure on plaintiff’s part to comply with any of the provisions of the assignment, and the only defense it attempted to set up was that after the drafting, and before the signing, of the instrument^ the plaintiff made oral promises to him that he would furnish him with such goods; from time to time, as would he necessary to keep the stock up to its general average; that these goods should be paid for out of the proceeds of the sales, and that the business and stock should never bp closed out, but should be continued as a going' concern; that he was induced to sign the assignment by these oral promises; and that plaintiff had not performed them, hut had proceeded according to the
■ Finally, it is assigned as error that the court, by its decree in question, entered a simple money judgment against the defendant for the value of the plaintiff’s special interest in the property, when the decree should have been in the alternative for the recovery of the property or its value. Section 5181 of Mansfield’s Digest of the Laws of Arkansas, which was in force in the Indian Territory, by the act of May 2, 1890, (26 St. at Large, p. 95,) when this judgment was entered, provides:
“In an action to recover tlie possession of personal property, judgment for the plaintiff may be for the delivery of the property, or for the value thereof, in case a delivery cannot be had, and damages for the detention.”
: It may be conceded that, where the defendant is in a position to return the property, the right to do so, and thereby to. discharge his liability and that of his. sureties for its value, is reserved'to him by this statute, and that the judgment must in that cas.e be in the alternative. The decisions of the supreme court of Arkansas con- . struing this statute go no further than this. Hanf v. Ford, 37 Ark. 544; Rowark v. Lee, 14 Ark. 425; Jetton v. Smead, 29 Ark. 372, 383. But the record in this case discloses that, more than two years before this judgment was rendered, the replevied property had been sold at public auction by the marshal under executions against the defendant, and that from its proceeds he had received over $2,000 in money. He could not therefore have returned the property if the decree had so directed, and it would have been an idle ceremony to have ordered him to do so. It was perfectly competent for the court, under these circumstances, to enter a simple money judgment against him for the value of the special interest of the plaintiff in the property. Thus, in Boley v. Griswold, 20
“Tfie court must be satisfied that the delivery cannot be made before it can adjudge absolutely the payment of money. But, if so satisfied, it may so adjudge. A sxiecial finding to that effect is not necessary. An absolute judgment for the money is equivalent, to such a finding.”
To the same effect is Brown v. Johnson, 45 Cal. 77.
The proceedings in this case were far from regular. This was an action at Jaw, and títere was no cause of action or defense pleaded in it that was not as good at law' as in equity. It should have been tried at law', but its transfer to the chancery docket was on motion of the interveners, and a.11 of the parties stipulated that it should be beard and tried by the master, and participated in the proceedings before him. By this action the irregularities we have not noticed in the earlier part of the opinion were waived.
The result is that, in an action for the recovery of personal property, where the only question at issue under the pleadings is the right to its possession, judgment cannot, in the absence of statutory authority, by lawfully rendered against sureties on the cross bond given by the defendant for the retention of the property, where no notice or statement of such a cause of action, or of any intention to urge it, is given before, and no evidence in support of it is produced at, the trial. One may not plead and try one cause of action, and recover judgment upon another and totally different one. One who attacks an assignment on the ground that it is fraudulent as to creditors not secured by it must plead and prove either that there were unsecured creditors at the time of its execution, or that it was made with the intention of contracting debts to subsequent creditors, that the assignor did not intend to pay, or had no reasonable ground to believe be would be able to pay, and that such debts were thereafter contracted. As neither the interveners nor defendant pleaded or proved either of these grounds for avoiding the assignment here, the question of its validity as to creditors was not. raised. It is no ground for the rescission or repudiation of a written contract that one of the parties to it has failed to perform an oral promise made at the same time with the execution of the written agreement that he would disregard some of its provisions. In a code action, where the statute provides that the judgment may be for the recovery of the possession of personal property or its value, a simple money judgment for the value of the property may be rendered against the defendant, where the court has found, or the evidence conclusively proves, that the property cannot b*- returned by the defendant. In such a case it is not necessary to render a judgment in the alternative.
The judgment against the defendant is affirmed, with costs. The judgment against the interveners is reversed, without costs, and remanded as to them, with instructions to dismiss their bill to be made parties, witb costs.