Hood v. Saunders

11 Colo. 106 | Colo. | 1887

Beck, C. J.

The scope and object of the bill filed in the county court by the plaintiff, Saunders, appears to have been the discovery of property and credits belonging to the defendant William B. Hood, and alleged to be held by or in the names of his co-defendants, in order that it might be in some manner subjected to the payment of plaintiff’s claims. This complaint was framed after the style of a creditors’ bill, but fatally defective as such, in that the main part of the indebtedness had not been reduced to judgment. Burdsall v. Waggoner, 4 Colo. 256; Allen v. Tritch, 5 Colo. 222. The plaintiff’s remedy seems to have been wholly misconceived. No proper foundation was laid either for discovery, for the cancellation of conveyances, for the subjecting of property to execution, or for any specific relief. The property embraced in the deed of trust had not been sold. No application was made in the bill to foreclose the real estate securities executed by Hood; nor was there an allegation of insolvency of said defendant, or that he was not possessed' of other property than that mentioned sufficient to satisfy the plaintiff’s claims. Something more than the oft-reiterated charge of fraud is necessary to constitute such a pleading as warrants the granting of equitable relief. In a proper case fraudulent conveyances will be set aside, and the property of a debtor subjected to the payment of his debts; but the necessary foundation must be laid upon which to invoke such relief, and the proceedings must be conducted in accordance with the forms of law. The complaint' failed to state a cause of action, and the court erred in overruling the demurrers filed thereto. It also erred in rendering a general judgment against all the defendants for the debt of defendant Hood, and there was no warrant of law for including in a second judgment that part of the plaintiff’s demand already merged in a prior judgment. Barnes v. Beighly, 9 Colo. 475. The judgment is reversed and the cause remanded. Reversed.