| Mass. | May 24, 1912
1. This is a suit in equity. In the Superior Court the only decree entered against Nickerson, the principal defendant, was that the bill be taken for confessed. This was not a final decree. Russell v. Lathrop, 122 Mass. 300" court="Mass." date_filed="1877-03-07" href="https://app.midpage.ai/document/russell-v-lathrop-6418879?utm_source=webapp" opinion_id="6418879">122 Mass. 300. Blanchard v. Cooke,
2. The bill is to reach and apply in payment of a debt due the plaintiff certain property conveyed by the defendant Nickerson, fraudulently and with intent to defeat, delay or defraud his creditors. R. L. c. 159, § 3, cl. 8. The substantial allegations are that Nickerson was a residuary legatee under the will of Caleb Chase, of which the defendants, Sias, Palmer and Rich, are trustees, and that the value of his interest was upwards of $75,000. No further allegations are made against the trustees. But it is averred that the other defendants with Nickerson conspired together to sell the latter’s residuary interest for less than its real value for their own benefit and with intent to defraud, hinder or delay the cred
The bill sufficiently avers large overdue indebtedness by Nickerson and a conveyance by him of his property upon an inadequate consideration and the distribution of large sums of money out of this inadequate sale among some of the defendants without account to Nickerson and either without any indebtedness or an indebtedness grossly insufficient to justify the payments. A speoific intent to defraud, hinder and delay the creditors of Nickerson and knowledge of the damaging facts on the part of those against whom relief is sought are averred as tainting every part of all the transactions. Most if not all of the defendants are alleged to have benefited pecuniarily by a voluntary transfer of property of Nickerson, conveyed so as to put it out of reach of his creditors. These results ensued from the execution of a design in which all participated with the purpose of profiting out of property which
3. The bill is not multifarious. The scope of a bill to set aside a fraudulent conveyance does not become multifarious merely because it follows all the ramifications of the vicious project, and thereby includes divers persons of varying degrees of culpability against whom the issues may not be identical, and towards whom different kinds or degrees of relief may be necessary. If the scheme is comprehensive, the pleadings must be likewise extensive. "The unity of the plan embraces all the parts.” Swift & Co. v. United States, 196 U.S. 375" court="SCOTUS" date_filed="1905-01-30" href="https://app.midpage.ai/document/swift--co-v-united-states-96205?utm_source=webapp" opinion_id="96205">196 U. S. 375, 396.
4. It is strongly argued in behalf of the defendant Glines that there is not enough set out in the bill to found a prayer for relief in chancery against him, and that the sum of all the charges against bim amounts to nothing more than that he paid $55,000 for a valid assignment of Nickerson’s interest, and that if he made $2,000 as profit that is something which he was entitled to keep. The allegations of fraudulent intent, guilty knowledge and participation with the others, although not repeated as to each step in the execution of the conspiracy, pervade and dominate the entire bill and attach to the conduct of Glines as much as to that of the others. Although the amount alleged to have been received by him is not so great as by some of the others, that is not significant. It is participation in the illegal plot, and not in its proceeds, which is the essential feature. Moreover, it is alleged that he holds the assignment of an interest in property worth $75,000, for which he paid only $55,000. These facts when joined with the fraudulent purpose and guilty knowledge are enough as matter of pleading. It does not destroy the liability of Glines that facts are alleged tending to show that Nickerson was defrauded by some of the other defendants. It is not infrequently an incident of a scheme to defraud, hinder or delay the creditors of a debtor in which he joins with others, that he may be both an actor in the wrong and a victim of it. There is nothing in Lewis v. Bannister, 16 Gray, 500, especially relied upon by the defendants, contrary to this view.
6. The defendant Glines filed a plea in bar, the substance of which was that the plaintiff brought an action at law against the defendant Nickerson, in which the trustees under the Chase will were summoned as trustees, and in which Glines appeared as claimant. The trustees filed an answer in which they set up the assignment from Nickerson to Glines. Issues were framed for a trial by jury, some of which related to the point whether the assignment was procured through the fraud, misrepresentation or collusion of the claimant. Thereafter the entry was made by agreement, “Trustees discharged upon their answer.” The plea in substance is res judicata. The defense of res judicata is available when a judgment on the merits has been entered in an earlier action involving the same issues between the same parties. Newbury port Institution for Savings v. Puffer, 201 Mass. 41" court="Mass." date_filed="1909-02-23" href="https://app.midpage.ai/document/institution-for-savings-in-newburyport--its-vicinity-v-puffer-6430524?utm_source=webapp" opinion_id="6430524">201 Mass. 41, 46. It does not appear that the judgment in the case at bar was on the merits. It may have been entered on other grounds than the soundness of the claimant’s assignment. It does not purport to establish its validity. Peck Bros. & Co. v. Stratton, 118 Mass. 406" court="Mass." date_filed="1875-09-25" href="https://app.midpage.ai/document/peck-bros--co-v-stratton-6418212?utm_source=webapp" opinion_id="6418212">118 Mass. 406. Moreover, the issues presented by the present suit are different and broader in their nature than those in the trustee action. This is not a bill in the nature of an equitable trustee process to reach and apply the propperty of the defendant Nickerson which cannot be attached or taken on execution under cl. 7 of R. L. c. 159, § 3. But, as has been pointed out, it is a bill to set aside a conveyance made in fraud of creditors under cl. 8 of the same section. The plea of Glines ought not to have been sustained.
Decrees dismissing the bill reversed.
This prayer was as follows: “Third. That the court appoint a receiver to collect and receive such amounts as this honorable court may find to be due from the several defendants by reason of money had and received by them on account of the sale heretofore mentioned, and such moneys as may be found to be due from the defendant trustees and that the defendants further be compelled to account for all moneys received by them as stated in paragraph five of the plaintiff’s bill.”