Haynes v. Rizer

82 Tenn. 246 | Tenn. | 1884

Cooper, J.,

delivered the opinion of the court.

On October 21, 1884, at half past three o’clock in the afternoon, the defendant, Y. M. Rizer, conveyed tó H. H. Cook, in trust, for the benefit of all his creditors, his real and personal property, and immediately thereafter acknowledged the deed for registration and delivered it to the trustee. The deed was noted for registration in the register’s office of Williamson county, in which county the realty and personal chattels then were, at thirty-five miuutes after six o’clock •on the next morning. On the same day the deed was signed and delivered, but at a later bour of tbe evening, the four attachment bills, which have been consolidated in this cause, were filed by different creditors of Y. M. Rizer, to attach his property upon the ground that he was about to fraudulently dispose of his property. The attachments issued in these causes were all levied on the defendant Rizer’s real estate before the trust deed was noted for registration, and were also levied upon various articles of personalty before such noting for registration, ' and upon other articles of personalty afterward. The subpoena to answer was, in each case, served on Rizer afterwards. He filed pleas in abatement of the writs of attachment, and answers. Such proceedings were had in the causes that the pleas were stricken out, the debts of the complainants ascertained upon reference, and a decree rendered in favor of the complainants against Rizer for the amounts severally due to them, and their respective priorities declared, a receiver to take possession of the property appointed, and the property ordered to be sold, by decree of January 9, 1885, in satisfaction of the debts, the land on credit, free from the equity of redemption.

. On December 9, 1884, H. H. Cook, as trustee under the deed of assignment of Rizer, filed a petition in each of the attachment suits, for the purpose of being let in to defend his rights therein. These petitions were on the next day ordered by the court to be removed from the files, .because filed without leave of the court. On the same day Cook made an application for leave to file his petitions, which motion, after consideration, was denied on December 18. On December 22, Cook made another application to file an amended petition, which motion, after consideration until December 31, was refused. On January 6, 1885, Cook, as trustee, on behalf of the creditors of Rizer, who had accepted the trust, and of all other creditors who might choose to come in and avail themselves of the benefit of the suit, filed his bill against the parties to the several attachment suits to assert his rights under the trust deed to the property in - controversy. On January 7, he moved the court for leave to file his bill, as an original bill in the nature of a supplemental and cross-bill in the consolidated attachment causes, which motion was refused by the court. To the action of the court on his several applications the said Cook excepted at the time, and filed bills of exceptions showing- the facts, and from the order of the court refusing his last application, he prayed an appeal, which was granted, to revise the action of the chancellor on these motions. Having given bond, as required by the chancellor,. Cook has filed in this court the record in the attachment suits, with his petitions and bill, and bills of exception, and action of the court on his motions,., and now moves this court for a writ of restitution to restore him to the possession of the property, or for an oi’der to restrain the sale of the property, pending his appeal, or for a writ of supersedeas to supersede the execution of the order of sale.

The orders or writs asked for are such as this-court is authorized to make or grant in aid of its appellate jurisdiction, and not upon original application. And it is clear, therefore, that the petitioner is not entitled to the relief he seeks unless he is a party to the attachment suits, or shows such a state of facts as required the court below, upon one or more, of his applications, to make him >a party. He is not a party, the chancellor having persistently refused to allow him to come in, either as complainant or defendant. He must, therefore, rely upon his right to become a party.

His petitions and bills show that Cook claims tire property in controversy only under his trust deed. And under that deed he must either have acquired a title to the property prior and superior to that of the attaching creditors,' or be a purchaser pending the litigation of these suits. In neither event can his petitions to become a defendant be sustained. Eor these .suits not involving the title to property, and only seeking to enforce debts, there is no statute authorizing such intervention; and there is no such practice in equity as the making of a person a defendant on his own application over the objection of the complainant: Comfort v. McTeer, 7 Lea, 652; Ogburn v. Dunlap, 9 Lea, 162, 166; Stretch v. Stretch, 2 Tenn. Ch., 140. And a purchaser pendente lite is not entitled to be made a party to the litigation, either by petition or by original bill in the nature of a supplemental bill: American Exchange Bank v. Andrews, 12 Heis., 306. A cross-bill is a bill brought by a defendant in a suit against the complainant and other parties respecting the matters involved in the original bill, and is an inherent part thereof, to be heard with it: Hergel v. Laitenberger, 2 Tenn. Ch., 251; Comfort v. McTeer, 7 Lea, 652, 662.

The object of the several applications of the petitioner, Cook, was to become a party to the attachment suits, and make the defense of Rizer to the attachment sued out by the attaching creditors, upon the suggestion that Rizer had failed to make the defense, either through collusion or from inattention and indifference. But, as has been expressly held by this court, if the petitioner claims under Rizer, pending the suit, he must abide by the case made against Rizer: American Exchange Bank v. Andrews, 12 Heis., 309. “He who purchases during the pendency of a suit is held bound by the decree that may be made against the person from whom, he purchases: Id.

If, indeed, after an assignment, pendente lite, there is collusion between the assignor and the opposing litigant, or if for any other reason it becomes essential to the rights of the assignee that he should intervene in the litigation, the remedy is not by becoming a party to the Original suit, unless the opposing party consent, but by an original bill, which is spoken of in the books as an original bill in the nature of a supplemental bill, or in the nature of a cross-bill, according as the complainant claims under the plaintiff or defendant. In either case the complainant in. the new bill would have the benefit of the proceedings in the first suit previous to the assignment, and could assert all the rights. acquired by the assignment, not under the original bill, but under his new bill: Trabue v. Bankhead, 2 Tenn. Ch., 412; Paul v. Williams, 12 Lea, 215, 220; Comfort v. McTeer, 7 Lea, 652, 671. And if the assignee attacks any part of the proceedings in the first suit as collusive or fraudulent, his remedy is of course by an original bill: 12 Heis., 309. His remedy is also by an original bill if he claims a title to property in dispute prior and superior to that of either of the parties litigating in relation to it. And nothing done in the suit between such litigants, to which he is not a party, can affect his rights. His remedy to stay proceedings in the other suit is hot by any of the modes resorted to in this ease, but by an injunction, upon some ground which shows that he is entitled to it, and upon such terms as the chancellor may legally impose upon him.

The application of the petitioner, Hook, is refused with costs.