16 N.J. Eq. 313 | New York Court of Chancery | 1863
To a bill filed by execution creditors of the firm of Daly & Burnet, to obtain satisfaction of the judgment out of the individual property of William D. A. Daly, one of the partners, the defendants demur.
1. Because Adolphus E. Burnet, the other partner of the firm of Daly & Burnet, is a necessary party. The sole design of the bill is to have the individual property of Daly, one of the partners, which is alleged to have been fraudulently conveyed away by him, applied in satisfaction of the
2. The second ground of demurrer is that the wife of Daly is not a proper party. The bill charges that the real estate in controversy was iormerly owned by Daly, and was conveyed by him and his wife to a third parly, and by their grantee ivas roconveyod to the wife, and by the wife of Daly to his father, in whom the legal title remained at the time of filing the bill. All these conveyances are charged to have been voluntary, and fraudulent as against the creditors of the husband. If fraudulent, the wife v?as a participant or agent in the fraud. The bill seeks to avoid, as well the title to her as the title from her. The complainants are entitled to a discovery from the wife, as well as from the husband, touching the consideration of the deeds and the alleged fraudulent purpose for which they were executed.
3. The third ground of demurrer is that the bill is multifarious as to Edward Daly, inasmuch as it unites with the charges of fraud in the conveyances to him, oilier charges of fraudulent concealment of property on the part of \V illiam I). A. Daly, with which Edward Daly has no concern or alleged connection. But it is well settled that on a bill to sot asido fraudulent conveyances made by a debtor, and for a discovery of his property, it is no objection that a defendant, to whom a portion of the property has been conveyed, has no connection with other fraudulent transactions of the debtor. The case against the debtor is entire. If the defendant is a necessary party to some part of the case as stated, he cannot object that- he has no interest in other transactions which constitute a part of the entire case. Attorney General v. The Corp. of Poole, 4 Mylne & C. 31; Boyd v. Hoyt, 5 Paige 78; Brinkerhoff v. Brown, 4 Johns. Ch. R. 671.
It is further urged that the bill is multifarious in its character as to the debtor himself, because it not only seeks
The last two points were considered and decided in this court at the last term, in the case of Way v. Bragaw, ante p. 213.
4. The fourth cause of demurrer is, that it does not appear that the complainants have exhausted the partnership effects, before resorting to the separate property of Daly, or that the firm of Daly & Burnet is insolvent.
It is a familiar principle that a judgment creditor must exhaust his remedy at law, before coming into equity. It is an equally familiar doctrine of equity, that as between the partners themselves, the partnership property must be applied to the payment of partnership debts, before resorting to the individual property of the partners. Yet a joint execution upon a judgment for a partnership debt may be executed not only, against the partnership property, but against the separate estate of each partner, for each is answerable for the whole and not merely for his proportionate part of the debt. Collyer on Partnership (5th Am. ed.) 818, and note; Herries v. Jamieson, 5 T. R. 556; Abbot v. Smith, 2 W. Bl. 947.
The complainants, therefore, have a legal right, under their judgment and execution at law, to levy upon the separate property of Daly, and having such legal right, they are en
It is certainly not necessary to aver that the firm is insolvent, in order to entitle the complainants to relief. The partnership property may be amply sufficient to satisfy all tho debts of the firm, yet it may be so covered up, or placed beyond the reach of process, as not to be amenable to execution at law, and to render the interference of equity essential to the ends of justice. All that can be required is, that it should appear by the bill that the complainant has exhausted his remedy at law, and that tho aid of this court is necessary to enable him to obtain satisfaction of his judgment. This does sufficiently appear by the bill in this cause. The complainants allege, that a writ of fieri fiadas de bonis et tetris issued upon tho judgment, directed and delivered to the sheriff of the county of Hudson, in which the defendants resided and transacted their mercantile business, and that the sheriff made return to the said writ, that he could not find any goods or chattels of the defendants in the said execution in his county, but had levied upon certain lands therein described, and appraised the interest of W. D. A. Daly therein at one dollar, and returned the said writ of execution wholly unsatisfied. The land thus levied upon, and the interest of William D. A. Daly in which was appraised at one dollar, is the same land which the bill alleges to have been fraudulently conveyed by Daly, to which it appears that at the time of the levy lie had no legal title, and which was not, therefore, subject to a valid levy under an execution at law. The formal levy was obviously made as a foundation of a proceeding in equity. By the terms of tho writ, the sheriff was commanded to levy upon all the estate, real and personal, belonging to the defendants, either as
The demurrer is overruled.
