88 Mich. 594 | Mich. | 1891
The bill in this case is filed in aid of two executions issued upon two judgments recovered by complainants against the defendants Augustus and John L. Buchanan and Mizner, November 9, 1887. The levy was made upon certain personal property and the real estate here in controversy. Upon the making of this levy defendant Corbitt sued complainant Cutcheon in trover for the personal property. The trial in that suit resnlted in verdict and judgment for Cutcheon, upon the ground that the transfer by the Buchanans and Mizner to Ooiv bitt was fraudulent as to creditors. This judgment, on appeal to this Court, was affirmed. Corbitt v. Cutcheon, 79 Mich. 41. The bill of sale then executed- by them to Corbitt contained no reference to any real estate, and no other instrument than this bill of sale was ever executed by them to Corbitt, No right, title, or interest, therefore, to any real estate, passed by this transaction to Corbitt.
But I find no evidence of any actual intent on the part of Corbitt to defraud, and upon this point the conduct of the creditors, in waiting several years, with full knowledge of all the facts, before taking any action, has an important bearing. It was decided in the former case that they were not estopped by their delay and.
It is the province of equity to deal justly with all parties. It would certainly be inequitable to compel Corbitt to turn over to complainants property which he has paid for with his own money to satisfy their judgments against Buchanan & Mizner. It- would also be inequitable to permit Corbitt to make any profit out of the transaction. It is equitable that he should turn over to complainants whatever interest Buchanan & Mizner have in the property. This must be determined by ascertaining what he received from the property turned over to him, and what he has in good faith expended. This can only be accomplished by an accounting, and the case will be remanded to the court below for reference to a commissioner for that purpose.
It is urged by defendants that this case is ruled by Harwood v. Underwood, 28 Mich. 427. We are unable to agree with this contention. In that case the debtor never had any legal or equitable title to the land. In the present case the land contract gave Buchanan & Mizner at least an equitable interest, with the right to obtain the absolute title upon payments. The statute .authorizing these proceedings now includes equitable, as well as legal, interests in lands. How. Stat. § 6108.
Decree will be entered in this Court in accordance with this opinion. No costs will be allowed.