41 Me. 25 | Me. | 1856
The bill charges that Joseph B. Haskell, during the years 1849 and 1850, became indebted to the plaintiffs for the amount of §1042,82, for merchandize sold; to recover which an action was brought, and judgment obtained in Oct. 1854, for the sum of §1323,45, debt, and §9,38, costs. On that judgment execution was issued Nov. 13, 1854, which was put into the 'hands of an officer, who after diligent search, was unable to find property wherewith to satisfy the same.
The bill also charges, that during the time the indebtedness of Haskell was accruing, he was seized and possessed of certain real estate, situated in Portland, and described in
The prayer of the bill is for general relief, and that Libby may be required to convey to the plaintiffs, said real estate, or so much thereof as may be sufficient to pay their aforesaid debt.
To this bill the defendants, Charlotte B. Haskell and Washington Libby, have filed general demurrers. Joseph B. Haskell has been defaulted.
There is no suit at law pending between the parties. No levy has been made upon the land, and no proceedings instituted by which the plaintiffs have obtained a lien thereon. The bill asks for no specific discovery; nor does it purport to be a bill for discovery.
When it is attempted to reach the avails of property fraudulently conveyed, by process in equity, it should appear that a judgment has been obtained of some description, which cannot be impeached by the party to be affected by the relief sought; and that every thing has been done therewith which the law requires to obtain satisfaction of the same. Caswell v. Caswell, 28 Maine, 232.
Before a court of equity will interfere to afford relief, the plaintiff must show that he has an interest in the subject matter to which his bill relates. Shepley, C. J., in the case of Webster v. Clarke, 25 Maine, 313, after reviewing authorities upon this point, remarks: — “But in this State, where a judgment does not create a lien upon the real estate of the debt- or, the principle established in all those cases would require that the creditor make a levy upon the real estate of his
The case of Hartshorne v. Eames, 31 Maine, 93, has been supposed to be in conflict, to some extent, with the case last cited, and to be an authority in point, to sustain the case at bar. An examination of that case will show that it cannot bear such a construction.
Though the point, that there had been no levy upon the land, and no lien created which would give the plaintiffs an interest in the land, was distinctly taken in that case, and though from some expressions used in the opinion it may be inferred that the Judge by whom it was drawn might not have deemed such interest in the land necessary to authorize the interposition of a court of equity, the case did not turn upon that point. There is no statement of the case except what appears in the opinion. From that it appears that the legal title to the land was never in the defendant, and consequently, a levy could not have been made upon the legal estate; and further, although a decree was entered that the defendant should pay the plaintiffs the amount of their debt, that decree was based upon considerations aside from the alleged fraudulent transfer of real estate. Whether that case was well decided or otherwise, it is not necessary for us to consider.
Should any of the dicta in that opinion appear to be in conflict, in any degree, with the established rules of equity
Demurrer allowed and hill dismissed with costs.