Gates v. Boomer

17 Wis. 455 | Wis. | 1863

By the' Court,

Cole, J.

The first objection taken to the complaint, on the demurrer, is, that the court has no jurisdiction of the causfe. The complaint is filed by two judgment creditors of Lyman M Boomer, for the purpose of setting aside and having declared void a deed given by him to his co-defendant, on the ground 'that it is fraudulent and void as to creditors. They state that their judgments were obtained subsequent to the giving of said deed; that executions have been issued upon them, and returned unsatisfied; and that the judgment debtor has left the state and has no property here liable to seizure and sale. They therefore ask that the deed, which is an obstruction, be removed so that they can enforce their liens by a sale of the property upon execution. This general statement will suffice to understand the object of the suit.

We think the facts stated in the complaint bring the case within an acknowledged head of equity jurisdiction. As already observed, the object and purpose of the suit is to clear the real estate of the judgment debtor from an incumbrance fraudulently and improperly placed upon it to the injury and prejudice of the creditors. It is said, if the deed be void in respect to creditors, as is alleged, that then this suit is unnecessary, since there is no obstacle to the respondents enforcing their judgments by sales upon execution. But if the parties should adopt the course suggested, still it is very obvious that the existence of the deed would throw doubt and uncertainty upon the title, and might entirely prevent bidding at the sales’ In Beck vs. Burditt, 1 Paige, 305, which was a bill filed by a judgment creditor to set aside a fraudulent assignment of property, the chancellor uses the following language: “ There are two classes of cases where a plaintiff is permitted to come into this court for relief, after he has proceeded to judgment and execution at law without obtaining satisfaction of his debt. In one case, the issuing of the execution gives the plarhtiff a lien upon the property, but he is compelled to come here for the purpose ‘of removing some obstructions fraudulently or inequitably interposed to prevent a‘sale on the execution. In the other, the plaintiff comes here to obtain satisfaction of his debt out of the property of the defendant which dannot be reached by execution at law.” This is obviously a ease of the former character. See also Clarkson et al. vs. De Peyster et al., 8 Paige, 320 — a case much in point; 2 Story’s Eq. Jur., §§ 697 et seq. It is true, in Graham vs. La Crosse & Milwaukee R. R. Co., 10 Wis., 459, we held that the proceedings supplemental to an execution, established by the code, were intended as a substitute for an action by creditor’s bill. But the legislature, immediately on the publication of that decision, passed chap. 303, Laws of 1860, restoring that remedy. The- case of Graham was where a party had exhausted his legal remedies without being able to obtain satisfaction of his debt, and differs from this suit, which seeks, to remove an instrument which is an obstruction to enforcing a sale upon execution and is a cloud upon the title of the property. Whether this case would fairly come within the principle decided in that case, had there been no change in the law, we will not stop to inquire, as we are satisfied the legislature intended to restore the former practice by the enactment just cited.

It is further objected that there is a defect of parties plaintiffs, and that it was irregular for the two judgment creditors to unite in the action. This point is clearly untenable. Both plaintiffs have a common interest in removing the fraudulent conveyance, so, that they can enforce their respective judgments. And aside from our statute, we think there would have been no misjoinder of parties plaintiffs. See case in 3 Paige, supra, and authorities there referred to. But our statute provides that all persons having an interest in the subject of the action and in obtaining the relief demanded, may be joined as plaintiffs, with certain exceptions not applying to this case. Sec. 18, chap. 122. This provision is unquestionably broad enough to meet tbe case at bar, since both plaintiffs have a direct and common interest in tbe subject matter of tbe suit and in tbe relief sought. Tbe third objection, to wit, that several causes of action are improperly united in tbe complaint, is disposed of in considering tbe question whether or not there was an improper joinder of tbe parties plaintiffs.

Tbe next objection, that tbe several causes of action are not separately stated, is not sustained by tbe complaint, as an examination of its various allegations will abundantly show.

Tbe next and last ground of demurrer is, that tbe complaint does not state facts sufficient to constitute a cause of action. This objection has been anticipated and sufficiently considered in tbe observations made upon tbe first point. Tbe object of tbe action has been stated. Tbe allegations of tbe complaint are quite full in respect to tbe time, circumstances and design of tbe making of tbe fraudulent conveyance; that tbe grantee took tbe same with full knowledge of tbe fraudulent intent; tbe facts in respect to recovering tbe two judgments therein mentioned; tbe issuing of executions, and that tbe property conveyed is tbe only resource tbe plaintiffs have of collecting tbe judgments. "We see no defect in tbe complaint.

Tbe order of tbe circuit court, overruling tbe demurrer, is affirmed.