97 Wis. 446 | Wis. | 1897
The appellant claims that the general finding of fact by which the circuit court exculpated all the defendants from the charges of fraud or collusion contained in the complaint is contrary to the uncontradicted evidence. He claims that three facts appear by the evidence of the de
It seems quite true that the plaintiff’s complaint, as amended in May, 1896, just as the trial of the action began, is in fact a creditor’s bill attacking all of the transfers, mortgages, assignments, and other securities secured by Tarbell on the 13th of May, 1894, as frauds upon creditors of Lappen & Co., and seeking to set them aside, and to apply the property so fraudulently conveyed to the payment of the plaintiff’s judgments. Had he filed this complaint in July, 1893, when he commenced his action, he would certainly be in position to make with great force the claims which he now makes. But the difficulty is that he had no such idea in 1893, when he commenced his action, and evidently did not bring it for any such purpose. His original complaint is not, and cannot be made, a creditor’s bill. It is in substance an action in equity
The original complaint did not attack the assignments made by Lappen & Co. to Tarbell at all, but rather affirmed and insisted on them. It is true that the plaintiff claimed he was induced to believe that there was but one assignment, in which all stood equally, but he learned in a lew days that there were in fact three, and he did not seek to set aside the three assignments so f&r as Lappen & Co. was concerned, but rather insisted upon them as conveying the accounts, and also insisted that as between Tarbell and himself he was entitled to share on equal terms with Tarbell. The assignments were not attacked, but the plaintiff’s rights under the assignments were claimed to be different from what appeared upon their face.
Now, the plaintiff, when informed of the assignments and transfers, had his option of two courses: He could assent to them, and insist on his rights under them, or he could disavow them, and attack them, and bring action to have them set aside, if he deemed them fraudulent; but he could not take both courses at once, because the remedies are inconsistent. If, knowing all the material facts, he chose by some decisive act to affirm the transactions and take advantage of them, he cannot afterwards change his position, and seek to set aside the-same transactions, because he thinks he has-mistaken his remedy. The bringing of an action is generally held to be such a decisive act. Cannihan v. Thompson, 111 Mass. 270; Sanger v. Wood, 3 Johns. Ch. 416; Morris v. Rexford, 18 N. Y. 552.
The only serious question, therefore, is whether the plaintiff knew the material facts when he elected to bring his
By the Court.— Judgment affirmed.