Fowler v. McCartney, 27 Miss. 509

Fowler v. McCartney

27 Miss. 509 | Miss. | 1854

Mr. Justice Fisher

delivered the opinion of the court.

This is an appeal from a decree of the vice chancery court at Holly Springs, sustaining a demurrer on behalf of the defendants to the complainant’s bill.

The bill alleges that the complainant on the 9th day of April, 1846, recovered a judgment in the circuit court of Lafayette county, against one John McCartney, for the sum of $1,429.87, for debt, damages, and costs ; that said judgment is founded on a promissory note made by the said McCartney on the 13th day *514of December, 1836, and payable the 1st of January, 1839; that said judgment was duly enrolled in the clerk’s office of said county on the 17th day of August, 1846; that executions issued thereon at different times, and were returned by the sheriff of said county “ no property found; ” that on the 2d of April, 1844, the said McCartney became the owner of a certain quarter section of land situate in Lafayette county; that the sheriff, supposing the same to be exempt from execution, refused to levy on the same; that said McCartney continued in the possession and enjoyment of said land until his death, which occurred in the month of October, 1852; that after his death, his son John G. McCartney filed a deed from his father to said land, in the office of the clerk of the probate court of said county, by which deed it appears that the land was conveyed to the son on the 3d day of November, 1851, for the consideration of the sum of five dollars ; that on the 15th of November, 1852, the defendant, Denson Conway, filed a deed in said office, conveying the said land to him by the said John G. McCartney, and purporting to be upon the consideration of the sum of $1,300.

The bill specially alleges that the conveyance from the father, John McCartney, to the son,. John G. McCartney, was not only voluntary, but was made with a view to hinder, delay, and defraud the creditors of the father, and especially the complainant; that the said Conway was fully informed as to the facts, purposes, and object of the father in making, and of the son in accepting said deed, as well as of the existence of the complainants’ judgment; that although the conveyance to the said Conway purports to be upon the consideration of the sum of $1,300, as above stated, he has not in fact paid the said sum or any part thereof.

These are the material allegations of the bill to which the demurrer was sustained in the court below, and the question now is, whether this judgment is correct.

It is first insisted that the lien of the judgment had expired as to the defendants under the operation of the eleventh section of the enrolment law of 1844, Hutch. Co. 892, before the death of the judgment debtor, and that therefore the defendants hold the land discharged from the judgment lien; second, that the *515complainant had a full and unembarrassed remedy at law; and third, that the judgment should have been revived at law before proceeding in equity.

These several questions will be considered in the order in which they were stated.

The section of the statute above referred to, is in these words, namely: “ all liens of judgments, decrees, and forfeited forthcoming bonds, shall cease and determine, as against purchasers or creditors of the debtor or debtors, unless the same shall be enforced by execution within five years from the date of the entry and enrolment of the same, on the judgment roll under the provisions of this act.” The point made on this statute is, that the five years having elapsed, counting from the date of the enrolment of the judgment, and the defendants occupying the attitude of purchasers from the judgment debtor, the lien as to them had, in the language of the statute, ceased and determined. To this it is replied by opposing counsel, that the word- “ purchaser,” us used in this statute, must be understood in the sense in which it is used in the statute of frauds, in which it is held to mean a bond fide purchase’-, without notice of the fraud. This view of the law receives in the fullest manner our entire assent. The conveyance by the father to the son, was not only without consideration which could uphold it against the judgment creditors of the former, but as the bill charges, it was made with a view to hinder, delay, and defraud the complainant in the collection of his judgment. This allegation being admitted by the demurrer, there is no room for debate, confining the transaction exclusively to the father and son. The case is none the less clear, extending it to the defendant Conway. He purchased, as the bill alleges, with full notice of the want of consideration and fraudulent purpose of the conveyance to his vendor, John Gr. McCartney, and in addition to this fact, has not paid the purchase-money. These facts being true, he does not appear before the court as a bond fide purchaser, and as such entitled to its protection, but to some extent, at least, as a participator in the fraud of his vendee, and as aiding him in the accomplishment of his fraudulent object.

In this connection it is urged, that to entitle the complainant *516to maintain his bill, it should be shown that his judgment lien was, at the time the bill was filed, in full force as to the land, and numerous authorities were cited to sustain this position. Without calling in question the general correctness of the rule, there is a successful answer which may be given to the position as assumed by counsel, and that is, that the lien here is, in point of fact, in full operation. As has been seen, the lien could only be defeated under the operation of the statute by a bond fide purchase of the land by the defendants. No such purchase has been made, and consequently the lien, as originally created, has not ceased or determined, as supposed by counsel.

Upon the second point, a few remarks will suffice.- As a general' rule, fraud is of itself sufficient to confer jurisdiction upon' a court of equity. Judgment creditors can resort to that court, not only for the purpose of subjecting property which cannot be reached by execution to their judgments, but to remove obstructions to a fair sale of property, liable to execution at law'.' It comes with a bad grace from the parties claiming under these deeds, to say that they are so utterly worthless on their face, as not to affect the value of the property if offered by the judgment creditor for sale, under legal process; or, if not, to deter prudent persons from bidding for the property. The creditor has not only a right to have the property subjected to the payment of his judgment, but to have it subjected in such manner that it will bring its fair market value. Of this, the defendants have no right to complain.

The third and last objection is, that the judgment should have been revived by scire facias before proceeding to collect the judgment.

If the complainant were seeking to enforce his judgment by execution at law, it would certainly be necessary'to revive it against the administrator or heirs, according to the nature of the property sought to be subjected, or the object of a revivor.

But in the present case, the administrator, the heirs and terretenants, are all made parties defendants to the bill. Equity avoids both a multiplicity of suits, or circuity of action touching the same matter. The parties can make to the bill any defence which they could make ón a scire facias to- revive *517the judgment at law, and they certainly cannot complain of such rule, as they are only required to litigate under it, in one, instead of two courts, as insisted by counsel.

Decree reversed, demurrer overruled, cause remanded, and defendants required to answer in sixty days after the decree shall have been certified and filed in the court below.