23 Haw. 192 | Haw. | 1916
The plaintiff, a domestic corporation, filed in the first judicial circuit December 8, 1915, against the defendants Bartlett and Harrison, its bill in equity, wherein it alleges that on the 27th day of April, 1915, the defendant Bartlett executed and delivered a certain promissory note of that date for the sum of $1555.20 to one T. A. Marlowe, said note being payable to the order of said Marlowe two years after date; that on the 29th day of September, 1915, the said Marlowe assigned the said note to the plaintiff without recourse; that the plaintiff, for a valuable consideration, became the owner and holder of said note; that on the 8th day of May, 1915, the defendant Bartlett absconded and left the Territory of Hawaii and thereafter was indicted on six charges, four for embezzlement, one for forgery and one for uttering forged paper; that bench warrants for the arrest of the defendant Bartlett duly issued but have not been served, the said defendant being absent and a fugitive from justice and does not intend to return to Hawaii; that said defendant left without the intention of returning and did not make any provision for the payment of said note, and plaintiff verily believes that said defendant does not intend to pay said note or any part thereof; that, on information and belief, plaintiff alleges that said defendant intends to dispose of all his real and personal property in the Territory of Hawaii before said note becomes due and payable and intends to cheat and defraud this plaintiff out of the full amount of said note which the plaintiff now owns and holds and to prevent which the plaintiff has no remedy at law; that the said defendant owns certain described real property in Honolulu, mortgaged to the Bank of Honolulu to secure an indebtedness in the sum of $17,500. The bill then alleges that the defendant Bartlett, on May 5, 1915, executed and delivered to his codefendant
Upon filing the bill a circuit judge in said circuit made an order requiring the defendants to appear on the 11th day of December, 1915, and show cause, if any they could, why said injunction prayed for should not issue, and requiring the defendant Harrison to appear before said judge on the 23rd day of December, 1915, and show cause, if any he
To the plaintiff’s bill the defendants filed their several demurrers upon the ground that said bill does not state facts sufficient to entitle the plaintiff to the relief demanded, either by injunction or by a discovery, and that the circuit judge, sitting in equity, has no power to grant the relief demanded by the plaintiff in its said bill. These demurrers were overruled by the circuit judge, and from the order overruling the said demurrers an interlocutory appeal was requested by the defendants and allowed by the circuit judge, and upon such interlocutory appeal the cause is before us. We must either affirm or reverse the order overruling the said demurrers.
The controlling question here is: Has a court of equity in this jurisdiction, under the allegations of fact contained in the bill, power to restrain a debtor from selling and disposing of his property unless he gives security for a debt not yet due? The note alleged in the bill will not be due until April, 1917. It was taken by the original promisee without security, and the obligation of payment, by agreement of the parties, postponed for a period of two years. The note is negotiable in form. In other words, the promisee impliedly agreed to wait two years for payment without security. Under the allegations of the bill the inference arises that when the plaintiff took the assignment of the note without recourse it knew that Bartlett had absconded, knew that he had been indicted for embezzlement, knew that he did not intend to return, and knew that he was selling and disposing of his property in Hawaii, as the allegations of the bill show that these things had occurred prior to the assignment of the note in question to
Our law permits suits to recover debts that are due, that have matured. Prior to judgment an attachment may be obtained to reach property subject to execution, and other property, money, choses in action and securities in the hands of an agent or trustee may be garnisheed and held to await the termination of the action. Why did not the plaintiff avail itself of these legal steps to secure the said promissory note? Simply because the note is not due, and by agreement of the parties thereto the promisor is not required to pay it prior to April, 1917. By implied agreement the assignor of the plaintiff postponed payment and waived security for the payment of the note, hence cannot attach the property of the defendant Bartlett in the Territory nor garnishee any property, money or credits that he may have in the hands of the defendant Harrison or others. In enumerating the powers of circuit judges, sitting in equity, section 2473 R. L., among others, in relation to actions by creditors, provides: “Bills by creditors to reach and apply in payment of a debt, any property, right, title or interest, legal or equitable of a debtor, within this Territory, which cannot be come at to be attached or taken on execution in a suit at law, against such debtor.” The prop
The Virginia court in Tate v. Liggat, supra, at page 99, has well said: “It is admitted to be well settled, as a general rule, that a creditor at large (one who has not in some way acquired a right to have satisfaction out of his debtor’s property, specifically), cannot come into a court of equity to impeach any conveyance made by his debtor on the ground of fraud, and, consequently, that the court of chancery had no jurisdiction in the first of these suits, unless, as it was insisted by the counsel for the appellees in that suit, the rule is liable to exceptions, within one of which this case falls. The rule is founded upon the principle of the common law, essential to the enjoyment and circu
In our opinion the bill presents no equity, and the facts alleged therein are not sufficient to entitle plaintiff to the relief demanded, wherefore the demurrers of the defendants to the said bill should have been sustained.
The order overruling the said demurrers is reversed with costs to the appellant and the cause remanded for further proceedings consistent with the views herein expressed.