93 P. 648 | Mont. | 1908
delivered the opinion of the court.
It is alleged in the complaint herein that on April 29, 1904, the plaintiff, in an action brought for that purpose against her husband, Pierre Raymond, in the district court of Lewis and Clark county, obtained a decree providing for the separate maintenance of herself and her four minor children, which the decree awarded to her custody; that the decree directed the husband to pay to her monthly, and on the first day of every month thereafter during the joint lives of plaintiff and defendant, or until reconciliation should be effected, or until the further order of the court, the sum of $80; that it further directed that the defendant forthwith pay to her the sum of $50 to purchase necessary clothing for the plaintiff and her children, and also an- additional sum of $48 to pay rent then due and owing by the plaintiff; that none of said sums have been paid by the defendant, or anyone in his behalf, but are long past due; and that the said defendant is wholly insolvent, has no other prop^ erty within the jurisdiction of the court out of which the sums so awarded may be realized, and is, and has been since soon after the rendition of the decree, a nonresident of the state of Montana. It is then alleged as follows:
“(5) Plaintiff further avers: That no reconcilation has ever taken place between her and her said husband, Pierre Raymond, and there is no likelihood that any will ever occur between them. That ever since said decree of separate maintenance was en*455 tered the said Pierre Raymond has utterly failed and neglected to contribute in any manner whatsoever to the support or maintenance of the plaintiff or her said minor children, nor has he communicated with them in any way, but has utterly abandoned this plaintiff and her said children.
“ (6) That such proceedings were had in this court under and by virtue of said decree of separate maintenance; that the visible and known property of said Pierre Raymond, after he had departed without this state and had refused and failed to comply with said decree, was set apart by the court for the benefit of plaintiff and her said minor children in order to carry out and make effectual the provisions of said decree, but that the funds derived from the sale of said property of said Pierre Raymond have become almost exhausted, and will, in a very short period of time, be wholly consumed, thereby leaving plaintiff and her said minor children without any means of support, as this plaintiff is without any other property or means of her own.
“ (7) Plaintiff avers that she brings this suit in behalf of herself and her said minor children to enable her to provide the means for her and their support and to secure to her and them the rights and benefits to which they are entitled under and by virtue of the aforesaid decree.
“(7a) Plaintiff further avers: That on or about March 10, 1904, at Lewis and Clark county, in the state of Montana, these defendants combined, connived, and conspired together to hinder, delay and defraud the plaintiff of her rights in the property of her said husband, and said defendants combined, connived, and conspired together to defeat the plaintiff in her said suit for separate maintenance against her husband, which was then pending in this court, as these defendants well knew, to make ineffectual any decree which she might obtain against her husband. And so it was that at the time and place aforesaid these defendants unlawfully and wrongfully took and carried away 150 head of sheep, of the particular kind known as wethers, then and there the property of the said Pierre Raymond and in*456 his possession, and which said wethers were of the value of $900, and converted and disposed of the same to their own use to the damage of plaintiff in the sum of $900.
“ (8) That in the unlawful taldng and converting of said 150 head of wethers, as aforesaid, the defendants have been guilty of fraud, oppression, and malice.”
The prayer demands judgment for the sum of $900, with interest on this sum since March 10, 1904, and costs of suit, and that the amount, when recovered, be devoted by the court to the payment of the sums awarded plaintiff under the decree.
The defendants, in their answers, admit the rendition of the decree, as alleged, but put in issue all the other allegations of the complaint. At the commencement of the trial the defendants objected to the introduction of any evidence in support of the allegations of the complaint on the ground that they do not state a cause of action. The objection was overruled. At the close of plaintiff’s case the defendants made separate motions for nonsuit, basing their motions upon the same ground upon which their objection was made. The motion of defendant Blaise was sustained, and the cause dismissed as to him. Those of the other defendants were denied. The latter declined to offer any evidence. The court submitted the case to the jury for two special findings, viz., whether the defendants converted the sheep, and what was their value at the time of the conversion. The jury having found that the defendants were guilty of the conversion, and that the sheep were of the value of $712.50, judgment was rendered and entered in favor of plaintiff for this sum, with interest and costs. The defendants Blancgrass and Chevalier have appealed from the judgment and an order denying them a new trial.
The question submitted for decision is whether the complaint states facts sufficient to warrant any relief. It is not clear from an inspection of it whether it attempts to state a cause of action for a conversion, or one for damages in the nature of an action on the case for the wrongful conduct of defendants, by which plaintiff has been prevented from having satisfaction, pro tanto,
The form in which an action is brought is of no consequence; nor does it matter that the complaint contains allegations not appropriate to the purpose sought to be attained. In determining the issue of law presented by a general demurrer to the complaint, or by any other appropriate method of raising the question — as here, by an objection to the admission of. evidence at the trial, on the ground that the facts stated do not warrant any relief — matters of form will be disregarded, as well as allegations that are irrelevant or redundant; and if, upon any view, the plaintiff is entitled to relief, the pleading will be sustained. (Donovan v. McDevitt, 36 Mont. 61, 92 Pac. 49.)
We inquire, first, whether the complaint states a cause of action in conversion. In such an action the plaintiff must allege and prove a general or special ownership in the property and a right to the immediate possession of it at the time of the unlawful taking by defendant. (Harrington v. Stromberg-Mullins Co., 29 Mont. 157, 74 Pac. 413; Glass v. Basin & Bay State Min. Co., 31 Mont. 21, 77 Pac. 302.) The allegations of the complaint here do not meet this requirement. It is nowhere alleged that the plaintiff was the owner of the sheep at the time of the conversion, nor that she had any special property in them, nor that she was in possession of them. Indeed, the contrary appears, for it is alleged that “these defendants unlawfully and wrongfully took and carried away 150 head of sheep * * * then and there the property of the said Pierre Raymond, and in his possession, ’ ’ etc. The idea that plaintiff had any interest in them, even by possession, is thus excluded. Further, the conversion took place prior to the rendition of the decree, and it is not alleged that the cause of action arising out of it was set apart to the plaintiff under the terms of the decree, supposing this could have been effectively done.
Does it, then, state a cause of action for damages, upon the theory that, by the wrongful acts of the defendants, the plain
The plaintiff, then, by the recovery of her judgment against her husband, became his creditor for the amount adjudged to be due her at the time of its entry, and also for the amounts accruing thereon from month to month, and occupied toward him the position of any other creditor. At least she “stands in the equity” of a creditor, and is entitled to the same relief in equity when she seeks to have her claim satisfied. (Twell v. Twell, 6 Mont. 19, 9 Pac. 537; Bump on Fraudulent Conveyances, 3d ed., 505; 14 Cyc. 298; 5 Ency. of Pl. & Pr. 489.) Such being the case, she is also entitled to maintain an action at law upon any ground which would be available to any other creditor.
The substantive statement in the complaint is that “said defendants combined, connived, and conspired together to defeat the plaintiff in her said suit, * * * which was then pending
In Pennsylvania the action may be maintained by any creditor, whether he has a lien upon the property eloigned or secreted or not, or whether he has reduced his claim to judgment. (Penrod v. Mitchell, 8 Serg. & R. (Pa.) 522; Mott v. Danforth, 6 Watts (Pa.), 304, 31 Am. Dec. 468; Kelsey v. Murphy, 26 Pa. 78.) In Mott v. Danforth, supra, the court seems to rely for support of its decision both upon eases adjudged at common law in England and upon the provisions of the statute of Elizabeth (13 Elizabeth, Chap. 5) relating to fraudulent conveyances and imposing penalties upon the guilty participants. But the rule of these cases is exceptional. Speaking generally, the courts of this country adhere to the rule that the action cannot be maintained unless the plaintiff, by judgment, execution, or attachment, has secured a lien upon the particular property, and thus has a vested right therein which has been rendered nugatory by the acts of the defendant, the plaintiff thereby having sustained a specific injury different from that suffered by other creditors. In other words, in order to warrant a recovery, the plaintiff must allege and show that he had a specific right to subject the particular property to the satisfaction of his judgment, and that the defendant, either alone or with others, has deprived him of this right. Otherwise a recovery would be had upon the plaintiff’s bare chance to have satisfaction of a claim
“The plaintiff complained of the fraud of the defendant in purchasing the property of his absconding debtor in order to aid and abet him in the fraudulent purpose of evading the payment of his debt. The court ask, What damage has the plaintiff sustained by the transfer of his debtor’s property? He has lost no lien, for he had none. No attachment has been defeated, for none had been made. He has not lost the custody of his debt- or’s body, for he had not arrested him. He has not been prevented from attaching the property, or arresting the body of his debtor, for he had never procured any writ of attachment against him. He has lost no claim upon, or interest in, the property, for he never acquired either. The most that can be said is that he intended to attach the property, and the wrongful act of the defendant has prevented him from executing this intention. * * * On the whole, it does not appear that the tort of the defendant caused any damage to the plaintiff. But, even if so, yet it is too remote, indefinite, and contingent to be the ground of an action.” (See, also, Wellington v. Small, 3 Cush. (Mass.) 145, 50 Am. Dec. 719; Bradley v. Fuller, 118 Mass. 239.)
In the early case of Smith v. Blake, 1 Day, 258, the supreme court of Connecticut announced the same view and stated, as a further objection to the maintenance of such an action, that the result would be that the defendant would be subject to a like action by every one of the creditors of the insolvent debtor, and thus be liable to pay many times the value of the property, whereas the only penalty imposed upon him by law is that he shall reap no benefit by his fraudulent conduct. The doctrine of this case is reaffirmed by the same court in the case of Hatstat v. Blakeslee, 41 Conn. 301, where the case of Smith v. Blake is cited with approval.
In Hall v. Eaton, 25 Vt. 458, the right to maintain the action was denied, the court basing its decision upon Lamb v. Stone and Moody v. Burton, supra.
The decisions of the New York court of appeals are conflicting. In Braem v. Merchants’ Bank, 127 N. Y. 508, 28 N. E. 597, the right to maintain the action is denied, the court apparently distinguishing that ease upon its facts from the earlier case of Quinby v. Strauss, 90 N. Y. 664, wherein it was held that the action would lie in favor of a judgment creditor. The two cases seem, on principle, to be directly in conflict.
In Adler v. Fenton, 24 How. (U. S.) 407, 16 L. Ed. 696, the supreme court of the United States refused to sustain an action by a general creditor against the fraudulent grantees of the debtor, repudiating the doctrine of the Pennsylvania cases. In the case of Findley v. McAllister, 113 U. S. 104, 5 Sup. Ct. 401, 28 L. Ed. 930, the general rule that in order.to sustain the action the plaintiff must show a specific interest in the fund or prop
It thus appears that under the rule established by the great weight of authority in this country, although it is made clearly to appear that the defendant has willfully become a party to a conspiracy to defeat the judgment of the creditor, such a creditor has no cause of action against him, unless he can show that he has suffered some special injury different from that suffered by the other creditors.
Applying the rule announced in the cases cited to the allegations of the complaint, we find that they are not sufficient to sustain the action, in that it does not appear therefrom,- even by inference, that the plaintiff had any special right in the property alleged to have been fraudulently taken from the possession of her husband by the defendants. At the time the conversion occurred the suit was pending. She had no judgment, and therefore, at that time, was not a creditor of her husband, for the relation of creditor was fixed by the entry of the decree in the separate maintenance action. Prior to that time her husband was not her debtor, and in this respect she occupied a different relation toward him from that of any other creditor.
Counsel for respondent contends, however, that the complaint is in form and substance a creditor’s bill, and in support of this contention among other eases cites Twell v. Twell, 6 Mont. 19, 9 Pac. 537, Ryan v. Spieth, 18 Mont. 45, 44 Pac. 403, and Wilson v. Harris, 21 Mont. 374, 54 Pac. 46. But none of these cases are in point, nor are any of the others cited. It does not appear that Raymond, the debtor, had anything to do with the conversion of the sheep by the defendants, so that he might be said to have fraudulently disposed of or concealed them, and the purpose of the action is to annul the fraudulent conveyance
Without pausing to discuss the features of that character of a creditor’s bill, the purpose of which is to reach assets not liable to execution, it may be remarked that a creditor cannot, solely on the ground that he is a creditor, and that his debtor has no property other than an existing cause of action at law, bring suit upon such cause of action and obtain a judgment thereon as if he were the owner of it, and justify the action on the theory that he is proceeding by a creditor’s bill. To hold the contrary would be equivalent to laying down the doctrine that, because an insolvent debtor does not bring action to rectify a wrong done him, his creditor may do so, and not only so, but may, in his own right, bring the wrongdoer to book by going into a forum and adopting a form of action wherein and whereby the wrongdoer is deprived of a trial according to the fundamental law requiring his case to be submitted to a jury according to the forms of law.
Now, it is insisted by counsel for respondent and conceded by counsel for appellant, that the legal cause of action existing in favor of Raymond which the plaintiff seeks to reach is prop
The statutes of Montana relating to the kinds of property that may be taken on execution are very broad, and under them any species of property may be seized, sold, and the proceeds thereof applied to the satisfaction of the judgment. The procedure which would have given plaintiff all the relief to which she was entitled is found in the following sections of the Code of Civil Procedure:
“Sec. 1218. All goods, chattels, moneys, and other property, both real and personal, or any interest therein of the judgment debtor, not exempt by law, and all property and rights of property seized and held under attachment in the action, are liable to execution. Shares and interests in any corporation, or company, and debts and credits, and all other property, both real and personal, or any interest in either real or personal property, and al] other property not capable of manual delivery, may be attached on execution, in like manner as upon writs of attachment. Gold-dust must be returned by the officer as so much money collected, at its current value, without exposing the same to sale. Until a levy, property is not affected by the execution.”
“Sec. 1224. The sheriff must execute the writ against the property of the judgment debtor, by levying on a sufficient amount of property, if there be sufficient, collecting or selling the things in action, and selling the other property, and paying to the plaintiff or his attorney so much of the proceeds as will satisfy the judgment. Any excess in the proceeds over the judgment and accruing costs, must be returned to the judgment debtor, unless otherwise directed by the judgment or order of the court. When there is more property of the judgment debtor than is sufficient to satisfy the judgment and accruing costs within the view of the sheriff, he must levy only on such part*465 of the property as the judgment debtor may indicate, if the property indicated be amply sufficient to satisfy the judgment and costs. ’ ’
“Sec. 1232. When the purchaser of any real property not capable of manual delivery pays the purchase money, the officer making the sale must execute and deliver to the purchaser a certificate of sale. Such certificate conveys to the purchaser all the right which the debtor had in such property on the day the execution or attachment was levied.”
Under section 1218 all property of every description, tangible and intangible, including debts, credits, and all other property not capable of manual delivery, may be attached on execution in like manner as upon writs of attachment. By reference to section 895 of the Code of Civil Procedure, as amended by the Act of 1899 (Laws 1899, p. 139), debts, credits, and other personal property not capable of manual delivery are attached by serving upon the debtor, or person responsible, a copy of the writ and the notice therein directed. Under section 1224, supra, the sheriff must collect or sell the things in action, and also sell the other property seized, until sufficient funds are realized to pay the judgment. It will be noticed that in section 1232, supra, which contains directions to the sheriff as to the delivery of a certificate in case of a sale of property not capable of manual delivery, the word “real” qualifies the term “property.” When we examine all the provisions of the chapter together, it becomes apparent that the use of this term is a mistake, and that the term “personal” must be substituted for it. Section 3233 and the following sections direct the sheriff relative to sales of real estate and provide for redemption. If the word “real” be retained in section 1232, this section becomes inconsistent with the following sections, or else can be assigned no intelligent meaning. Real estate is never capable of manual delivery. If, however, the position of this section in the chapter be considered, and it be held to apply to the subject with which it evidently deals, it is clear that the substitution should be made, for thus all the sections are made consistent, and we have
The remedy pointed out ¿s adequate. The execution could have been levied as easily as a service of summons could have been made in this case. If no other purchaser could have been found, the plaintiff could have become the purchaser herself, and thus have become vested with title to the cause of action, whereupon, if defendants had refused payment without suit, she could with legal propriety have sued in her own name. It is no answer to this reasoning to say that this course would have been somewhat less expeditious than the one pursued by the plaintiff. If the asset must be regarded as property to be subjected to the payment of debts, it must follow as a necessary conclusion that the way pointed out by the statute to reach it must be pursued.
Reversed