Level Land Co. No. 3 v. Sivyer

112 Wis. 442 | Wis. | 1901

Dodge, J.

Some confusion seems to result from the joinder of the trustee in bankruptcy with the Judgment creditor as plaintiffs, but we think unnecessarily. That joinder was probably due to uncertainty whether the judgment lien established in favor of The Level Land Company by the decree of June 28, 1899, still remained in it, or had been transferred to the trustee by force of sec. 67c of the bankrupt act, and by the order continuing it in force for the benefit of the estate. That uncertainty need not trouble us on these demurrers, however; for that lien certainly exists unimpaired either in one plaintiff or the other, or both. Uor can we discover that the rights existing in The Level Land Company before the bankruptcy are at all enlarged by the joinder of the trustee. The latter’s rights to attack fraudulent conveyance or concealment of property are only those of the creditors whom he represents. Sec. 70e of the bankruptcy act only authorizes that “ the trustee may avoid any transfer by the bankrupt of his property which any creditor of such bankrupt might have avoided.” The complaint does not allege the existence of any creditor, other than this plaintiff,' whose claims existed prior to 1894 or to 1896, or who for any reason could have attacked the conveyances of Edwin H. Sivyer for fraud. It seems clear, therefore, that the rights of the trustee are confined to the same limits which rested upon those of The Level Land Company. ¥e must therefore proceed to examine the sufficiency of the complaint from the same standpoint as if bankruptcy had not intervened and The Level Land Company were suing alone. Whether some variance in the method of granting relief may result from the existence and presence of the trustee is a question to arise in framing the decree, but not now.

1. The first common ground of demurrer is that several causes of action are improperly united. A general rule governing such objections as this is that a complaint in equity is not multifarious which presents but one primary right for enforcement, or one subject of action for adjudication, though it may pray for many and various forms of relief, all germane to that single subject of the action, or to the vindication of that primary right. Bassett v. Warner, 23 Wis. 673; Gager v. Bank of Edgerton, 101 Wis. 593; Zinc C. Co. v. First Nat. Bank, 103 Wis. 125, 139. The complaint here sets out a single, salient, primary right for vindication, namely, the right to enforce its judgment lien against the undivided quarter interest of its debtor, Edwin H. Sivyer, in the Seventh ward property, and the vindication and enforcement of that right is the paramount and all-pervading purpose of the action and relief sought. Such a single and primary cause of action is not rendered multifarious because the consideration and control of the claims of many different persons, or the exercise of many forms of equitable power, is deemed necessary to accomplish that main purpose, and is invoked. To fully effect that general result, it is deemed by the pleader necessary that a variety of liens apparently superior to his should be brushed aside or minimized to the utmost, and, to accomplish that result, that the holders of such liens, and also the persons who owe the debts which they secure, should be parties, in order that the decree may bind them. Whether all of the forms of relief prayed are properly grantable is not material to the present question. They are obviously all prayed for as ancillary to the single paramount purpose of the suit. They do not constitute several causes of action, and there is no misjoinder.

2. A second ground of demurrer asserted by both appellants is that the complaint does not state facts sufficient to constitute a cause of action, and, to some extent, both de-murrants make the same contentions in support of their pleading. Some of these contentions are based on cases decided with reference to general powers and methods of courts of equity independently of any statute, and we may, in large measure, dispose of them by the consideration that plaintiffs plant their cause of action squarely upon sec. 3186, Stats. 1898, which, while not in any wise restricting the established jurisdiction of equity to quiet title, does authorize the maintenance of what is substantially a guia timet suit independently of some of the obstacles formerly existing thereto. The language of that statute is general and comprehensive:

“Any person not having such title or possession, but being the owner and holder of any lien or incumbrance on land, shall also have the same right of action as the owner in fee to test the legality and validity of any other claim, lien or incumbrance on such land or any part thereof.”

The complaint sets forth ownership of a lien by plaintiffs upon the interest of Edwin H. Sivyer in the Seventh ward property, and absence of possession. It alleges other claims and incumbrances thereon asserted by both the demurrant defendants, and prays, among other relief, that the legality and validity of such claims may be tested and adjudged. This summary seems to leave no room to doubt that prima facie facts constituting a cause of action under this statute are stated. True, the allegations and the prayer for relief go further, but a sufficient complaint is not rendered de-murrable by such additions.

One answer made to this prima facie sufficiency is that the complaint does not show that plain and adequate legal remedies have been exhausted. In support of that position, appellants invoke the rule settled by decisions of courts of equity, and now declared by statute (sec. 3029, Stats. 1898),— that issue and nulla Iona return of execution are essential prerequisites to action by a judgment creditor to set aside fraudulent conveyances. This court ought not to be required again to point out the limitations upon that rule so clearly explained in Gilbert v. Stockman, 81 Wis. 602, and French L. Co. v. Theriault, 107 Wis. 627. The holder of a judgment which is not yet a lien, in order to set aside fraudulent conveyances so that a lien may attach, must generally allege and show issue and unsatisfied return of an execution (Mueller v. Bruss, ante, p. 406); but one having a specific lien, by judgment or otherwise, may maintain suit to remove fraudulent or invalid obstacles standing in the way of its enforcement without such preliminary.

Appellants further argue, however, that, apart from the technical necessity for return of execution unsatisfied, courts of equity will not take jurisdiction when full and adequate legal remedy exists. This general principle is unassailable. It rests on the very reason for the existence of the great part of equity jurisdiction, namely, the demand for relief against the imperfections and nonelasticity of common-law remedies. Of course, the peculiar weapons of a court of equity will not be needlessly wielded to enforce rights to which the methods of the common-law courts are entirely adequate. But does the complaint disclose such legal remedy ? The only one suggested by appellants is an execution sale of the undivided quarter which is confessedly subject thereto, and which, so far as the allegations of the complaint go, appellants assert, may sell for enough to satisfy plaintiffs’ lien. If the complaint does not negative this last fact, we should have little doubt that it was insufficient. If plaintiffs can, by issue of execution and statutory sale of the interest in this land on which their lien rests, satisfy, their judgment, they should be left to do so. It must be confessed that the complaint does not categorically assert the insufficiency in value of'this real estate to satisfy plaintiffs’ judgment, but it is obviously framed upon that idea and, we think, may be held to aver it inferentially, at least, by not unduly strenuous exercise of the liberality which sec. 2668, Stats. 1898, commands us to extend to pleadings. It appears that in 1873 the entire property was appraised at $30,000, or $7,500 for Edwin’s quarter. We can hardly indulge in presumption that the land has advanced in value more than buildings have deteriorated.' This $7,500 is shown to be burdened by a life estate of unknown value; a mortgage of $12,000, of which at least a proportionate quarter, $3,000, is ostensibly a claim against this interest; also two other mortgages, $2,500 and $1,490; viz. a total of $7,000 and some interest, besides the life estate, while plaintiffs’ judgment is about $8,000. Inadequacy for all these demands is apparent. Eurther, the complaint alleges that the ascertainment and marshaling of prior liens as prayed is necessary to prevent the “total loss and destruction” of plaintiffs’ interests. If, as we conclude, the complaint alleges the inadequacy in value of the Seventh ward property to sell, subject to the other ostensible liens, for enough to satisfy plaintiffs’ judgment, it is absurd to say that his legal remedy is adequate and complete, if it appears that such sale would be more productive but for fraudulent and inequitable prior incumbrances, which can be removed only by the means of equitable procedure. Inadequacy of the legal remedy to enforce plaintiffs’ right is apparent, as also is the necessity of aid from a court of equity to authoritatively define the rights of the holders of the ostensible prior liens before plaintiffs offer the property for sale upon their lien.

Both appellants discuss at considerable length the limitations upon the right of one whose property is pledged to secure a liability of suretyship to seek exoneration, either, in whole or in part, against the principal debtor and against the creditor. That question is not essential to a decision upon the sufficiency of this complaint. It goes only to one of the methods suggested by which the court shall or may render effectual its determination of the validity and amount of appellants’ liens on the quarter interest in the Seventh ward property. The right of a surety to obtain exoneration of himself or his property by suit in equity before payment of the debt is generally well established. Dobie v. Fidelity & C. Co. 95 Wis. 540; Momsen v. Noyes, 105 Wis. 565; Ellis v. S. W. L. Co. 108 Wis. 313; Brandt, Suretyship & G. (2d ed.), § 223; Irick v. Black, 17 N. J. Eq. 189. The right to use the remedies which belong to the creditor, as by foreclosing his mortgage, is another suggested remedy. Moore v. Topliff, 107 Ill. 241. Again, the equitable process of marshaling securities is often available, whereby one having a right against only one fund may require a prior claimant having righ% against that fund and another to exhaust the other. 3 Pomeroy, Eq. Jur. § 1413; White v. Polleys, 20 Wis. 503. Whether the court shall adopt one or more of these principles or methods in order to protect the equitable rights of the plaintiffs is, however, a question of detail, not affecting the sufficiency of the complaint to state some cause of action.

The Layton Art Gallery, appellant, complains that there is no offer to pay its expenses of foreclosure. This might well be a valid objection against a bill merely seeking to compel it to foreclose, for the surety’s right does not extend to imposing upon an innocent creditor any additional burden of expense or delay. But such is not the only relief prayed, and, upon familiar authority, a complaint is not rendered demurrable by prayer for excessive recovery. If the court shall ultimately decide that foreclosure of the Layton Art Gallery mortgage is a necessary or proper step in working out the equities between the parties, it can impose suitable indemnity against expense as a condition.-

3. One ground of demurrer, asserted only by Byron G. Sivyer, remains to be considered: that is, that another action is pending between the same parties, for the same cause. That action, as described in the complaint, is one to foreclose the two mortgages of $2,500 and $1,490 owned by Byron against the undivided quarter of the Seventh ward property, and to which neither The Layton Art Gallery, Dorothy Sivyer, Clara Sivyer, George L. Thomas, Julia Sivyer Thomas, nor Annie J. Sivyer are parties; their absence being due to Byron’s resistance of efforts by these plaintiffs to bring them in. It needs no argument to establish that such action cannot involve the most important part of the cause of action here presented, namely, the testing and adjudication of the lien of the Layton Art Gallery mortgage, which cannot be effectively done, so as to fully bind all parties in interest, without the presence before the court of all the parties to this action. It does not appear by the complaint either that such other action is between the same parties or is for the same cause. If it might otherwise be urged that it is potentially between the same parties, because by counterclaim it would be possible to join them, that contention does not lie in the mouth of the demurrant Byron, because- he is alleged to have prevented such action, and cannot now consistently urge its possibility. Whether some part of the relief prayed here is so involved in that other action as to be beyond reach of the cburt in this is a question not material to the present demurrer. Some of the relief prayed certainly is not involved therein.

We are satisfied that the demurrers of both the appellants were properly overruled.

By the Court.— Both of the orders appealed from are affirmed. Eespondents will recover costs only as upon a single appeal.