| Mich. | Oct 26, 1881
The complainant sets forth that he recovered a judgment in the circuit court on the 19th day of February, 1878, against John T. Smith for the sum of $251.49 and costs. That on the 26th day of June, 1878, execution was duly issued, and that by virtue thereof a levy was made upon “ all the right, title and interest of the said John T. Smith” in and to certain described real estate, and the same was sold August 13, 1878, and bid in by the complainant for the sum of $150 — he being the highest bidder. That he received a sheriffs certificate, and the lands not being redeemed, a deed thereof, on the 2d day of December, 1879, and that by virtue thereof he became the owner in fee-simple of said lands." The complainant farther sets forth that the defendant John T. Smith, for the purpose of cheating and defrauding his creditors, on or about the 13th day of November, 1875, made a fraudulent and pretended quitclaim deed of said premises to his wife, Frances L. Smith, which said deed was, on or about the 29th day of May, 1876, duly recorded in the register’s office in the county where said lands are situate.
The bill in this case was sworn to January 19, 1880, was filed the same month and prays that said pretended deed from John T. to Frances L. Smith may be vacated, set aside and held for naught, and that the defendants be decreed to release to complainant all their claim to the premises, and for other and general relief. An answer was put in, proofs taken, the case heard thereon and the bill dismissed. The case comes here upon appeal from the decree of dismissal.
The defendants insist that the bill was filed too late, that the right to levy upon an equitable interest in land depends upon statutes, and that under Comp. L. § 4628, proceedings must have been taken before, or within a year after, the
It is, however, farther claimed by complainant that while it was competent to have filed a bill in aid of the execution and before the sale, it is equally competent to do it any time afterwards — citing Cleland v. Taylor 3 Mich. 201" court="Mich." date_filed="1854-01-15" href="https://app.midpage.ai/document/cleland-v-taylor-6631333?utm_source=webapp" opinion_id="6631333">3 Mich. 201; Trask v. Green 9 Mich. 368.
The first was an action of ejectment where the parties stood upon their strict legal rights, and the second was not a case like the present, but was to reach an equitable interest, and the remark made on page 368 that in a case like the present a bill could be filed after sale, was uncalled for.
Here the complainant comes and asks for equitable relief. At the time the levy and sale was made under the execution, complainant, the judgment creditor, had full and ample knowledge of the conveyance from John T. Smith to his wife, the deed having been duly recorded. The complainant did not then,, although he had an undoubted right to, file his bill in aid of his execution, and if the conveyance was fraudulent have it set aside, thus restoring and revesting the legal title in his judgment debtor, and thus enable intending purchasers to compete with him at the sale. He preferred to leave the matter not only in doubt as to the fraudulent character of the conveyance, but thereby to prevent any person from bidding against him, as purchasers under the levy made and interest sold could not have moved to have the conveyance declared void. The complainant could not thus acquire the title and then come into a court of equity and ask to have the deed set aside. He is too late and has no standing in this court for such a purpose. He should have filed his bill after the levy and in aid of his
The decree must be affirmed with costs.