Robinson v. Springfield Co.

21 Fla. 203 | Fla. | 1885

Mr. Justice Raney

delivered the opinion of the court:

I. The first point made by appellants is that the appellee cannot maintain this bill in its own name. In 1st Daniel’s . C. P. & P., 198, it is said : “ Where the subject matter in litigation is a legal chose in action which has been the subject of assignment, the assignor, or if dead his personal representative, should be a party ; for, as an assignment of a chose in action is not recognized in a court of law, and is only considered good in equity, the recovery in equity by ,the assignee would be no answer to an action at law by the assignor in whom the legal right to sue still remains, and who might exercise it to the prejudice of the party liable who would have to resort to a bill in equity to restrain such assignor’s proceedings.” Upon this ground “ where a bill was filed by the assignees of a judgment it was held that the plaintiffs could not go on with that part of their case which sought payment of the debt.” In England, Virginia, Kentucky, North Carolina and Indiana the assignors were held to be necessary parties in the following cases : Cathcart vs. Lewis, 1 Vesey, Jr., 463; Corbin vs. Emerson, 10 Leigh, 697; Allen and Wife vs. Crockett, 4 Bibb, 240 ; Carter vs. Jones, 5 Iredell, 196 ; Elderkin vs. Shultz, 2 Blackf., 345.

. The true principle, according to Judge Story, is that where the assignment is absolute and unconditional, leaving noequitable interest whatever in the assignor,and the extent and validity of the assignment is not doubted or denied, and there is no remaining liability in the assignor to be affected by the decree, it is not necessary to make the latter a party; and at most, in such a case he is a mere nominal •or formal party. Story’s Eq. PL, §153. Where the assignment is not absolute, and the assignor retains an interest in the security assigned, he is a necessary party “ because he is interested, and particularly.in taking an account of what is due” on it. Miller vs. Henderson, 2 Stock., 320. In Bruen vs. Crane, 2 N. J. Eq., 347, which was a bill to foreclose a mortgage, Chancellor Pennington, in overruling the demurrer for want of the assignor as a party defendant, the .assignee thereof being a party, said: “ I can see no stronger reason for making the assignor of a judgment a party than the mortgagor, who has parted with all his interest in the lands. The multiplication of parties should be avoided whenever they have no interest at stake in the cause; it •can only tend to create expense and embarrassment.” Mi. Jones, in his work on mortgages, (§1373) says that the assignor is not a proper party where the assignment is absolute and the mortgagor retains no further interest. In Walker vs. Bank, 6 Ala., 452; Garrett vs. Pickett, 15 Ind., 485 ; McGuffey vs. Finley, 20 Ohio, 474, the assignor is held not to be a necessary party; and in Newman vs. Chapman, 2 Randolph, 93, the Virginia Court of Appeals-held that “ the assignee of a mortgage may maintain a suit to foreclose without making his assignor a party, if the legal title has been conveyed to him.” In Morey vs. Forsyth et al., Walker’s C. R.,465, it was held that an assignor of a judgment, or chose in action on which a judgment has been obtained in the name of the assignor, is nota necessary party to a judgment creditor’s bill filed by the assignee. “ If,” says the Chancellor, “ there be a controversy between the assignor and assignee touching the assignment, the court will direct the assignor to be made a party for the protection of all; otherwise he need not be a party.” In Ward vs. Van Bokkelin, 2 Paige, 289, a suit by an assignee of a judgment to set aside a fraudulent conveyance, where the same doctrine is maintained, it is held as in Morey vs. Forsyth et al., that an assignee of a chose in action is now considered the real party as well in law as in equity, and the defendant may plead and give in evideuce any matter of defence which exists in his favor, against the assignee. In Kendig vs. Giles, 9 Fla., 278, it is held that where one sues for the use of another, the .former is the nominal, and the latter the real plaintiff. The doctrine that the assignor is not a necessary party is held in Illinois, Maine, Ohio and Vermont; and we understand the cases of Ensign vs. Kellog, 4 Pick., 1, and Montague vs. Lobdell, 11 Cush., 111, as supporting the same rule. 32 Me., 343 ; 21 Ill., 208 ; 19 Vt., 496 ; 20 Ohio, 474; 3 Paige, 466. We see nothing in Carrier vs. Howard, 14 Gray, in conflict with it. In Polk vs. Gallant, 2 Dev. & Battle’s Eq., 395, (A. D. 1839,) an assignor was held not to he. a necessary party to a bill against an assignee where it appears from both the bill and! answer that all the interest of* the assignor had been transferred ; this, however, we perhaps should add is stated in a note to this case, citing 5 Iredell, 196, and Busbee Eq., 196, to be an exception to the general rule in North Carolina. In Kentucky, (Cobb vs. Thompson, 1 A. K. Marshall, 378, 508,) an assignee of a judgement was permitted to sue in equity in his own name, there being no administration on the assignor’s estate.

We consider the rule dispensing with the assignor as a necessary party where the assignment is absolute, and no. interest remains in him, as appears to be the case at bar, to. be the better one, and adopt it. Such we understand to. have been the view of this court in Betton vs. Williams, 4 Fla., 11. Moreover, since the passage of chapter 3241, Laws of Florida, authorizing civil actions at law to be-maintained in the name of the real party in interest, we do-not think it can be held in this State that “ an assignment of a chose in action is not recognized in a court of law.”'

The reason urged that this suit should be in the name of the assignor because if assignees get a decree in their name-a satisfaction of record of this decree will not appear of record to be any satisfaction of the Bostwick decree—does: not strike us with much force. Moreover a decree in this, cause subjecting to the payment of the Bostwick decree lands standing in the name of any of the defendants, would, we think, mention that decree, or provide in effect at least that the lands should be sold under that decree, or that moneys arising from the sale of such lands should be applied to the payment thereof, and on such application being made-that decree should be satisfied on the record.

II. The second point urged by appellants is: “It appears-from the record that at the time the conveyances complained of as fraudulent were made, Bostwick and wife, the-assignors, held a mortgage on the land conveyed by them 'to Robinson and Mitchell, trustees, and mortgaged back to 'them by such trustees, for the credit installments of the pur'diase money, of which credit installments the decree which 'the complainant is now seeking payment of constitutes a part.” They contend that the Statute of Frauds is only for "the protection of unsecured creditors, and that “ a voluntary- conveyance ” could not be considered as in fraud of a ■creditor for a balance of purchase money secured by a mort•gage, “ because he has got his security of his own choosing ■ample and full to protect him.” “A mortgagee,” they say, “is not in the meaning of the Statute of Frauds,” and ■“ there can be no intent to defraud him of his debt which is already secured.”

The Statute of Frauds is by its terms for the protection of creditors or others * * intended to be delayed, hindered or defrauded, * their heirs, successors, administrators and assigns.” When it shall be shown that the alleged fraudulent conveyances and acts are merely voluntary conveyances, and that the creditor’s security is “ ample and full to protect him,” it will be an apt time to decide the law applicable to such a case, but it would be ¡premature to do so in a case where it is not only specially •alleged that the conveyances were made for the purpose of ■defrauding Bostwick and wife, but also that the property 'conveyed is still in fact the propertv of Robinson, and the purpose of the bill is to subject it to the debt, and the se■curity has been sold and a large balance remains unpaid, 'and the bill is demurred to. We do not see that it lies in the mouth of the demurrants to question upon argument ■either the fraudulent acts or intent alleged, or the damage to complainant as assignee of the decree. In the case of Barrow vs. Bailey, Adm’r of Bellamy, 5 Fla., 9, the judgment, of which satisfaction was sought, represented an unpaid balance of purchase money of land sold to the fraudulent grantor, and the legal title of this land was, at-the time the conveyance assailed was made, still in, Bellamy, to whose estate the judgment belonged.

The eases cited by appellant are not in point. Seymour vs. Wilson, 19 N. Y., 417 ; Reed vs. Mullins, 48 Mo., 344,, have no bearing that we perceive. Fetrow vs. Merriwether,. 53 Ill., 275, wh,ere the mortgagee was in possession, and notice of the mortgagee was not questioned, decides that it-, did not concern a mortgagee that his mortgagor had sub-, sequently conveyed the equity of redemption of the mort-. gaged property to a third person for a full consideration,., gratuitously or for the purpose of hindering and delaying-his creditors, as the conveyance could not affect the mort-. gagee’s rights. If the mortgage debt is not paid, the. holder of the mortgage can foreclose and sell against either-the mortgagor or such assignee of the equity of redemption. In Hodson vs. Treat, 7 Wis., where the mortgage-was registered, it was held that a conveyance by a mortgagor of his equity of redemption, though fraudulent and. void as to his creeitors is not void as to his mortgagee, and, for the same reasons as are given in the Illinois case. We. do not see anything in the doctrine of these cases from, which to infer that a creditor who has foreclosed and sold the equity of redemption and has a decree .for the balance, of his claim, is not still a creditor and one that might have-, been injured prior to such foreclosure by either a voluntary- or an expressly fraudulent conveyance of his debtor’s other-property, nor anything which denies such creditor the. right to go into equity to reach property standing in the. name of others, but really belonging to the debtor. It is, true that in Bump on Fraudulent Conveyances, page 14, in a paragraph discussing the debtors being held to goods, faith, it is said : “ If they (the creditors) take no specific--security from him, they trust him upon the general credit of his property, and a confidence that he will not diminish it to their prejudice. They therefore have an equitable claim upon and interest in it.” The authorities cited are Eppes vs. Randolph, 2 Call, 108, and Seymour vs. Wilson, supra. The language quoted is found, with a slight change ■in the last sentence, in the former case, but there is nothing in either case to support the inference sought to be drawn from it by appellants, nor do we think it true that because •creditors take security they do not also “ trust upon the general credit of the debtor’s property and a confidence that he will not diminish it to their prejudice ; ” nor that ■anything of the kind was meant in the second Randolph •case, or by Mr. Bump.

' III. The third point urged is that there is no personal judgment against the defendant, Calvin L. Robinson, and that “ therefore there is no right to inquire into his voluntary conveyances.” The demurrer, of course, admits that the decree of August 13, 1880, of which a copy is in the record, was actually entered, and we must determine from its face what the character and effect of it is. It is not contended that the correctness of it, as justified by the pleadings and proceedings on which it is based, can be in•quired into here. In Daniel on Negotiable Instruments, ■§271, it is said : “ Guardiaus cannot bind their ward’s estate, nor trustees the estate of their cestui que trust by bills •or notes, and hence though they sign themselves as guardians or trustees they are personally bound, because otherwise the instrument would be invalid.” See also §262, and 5 Mass., 299; 8 Cow., 31; 6 Mass., 58; L S. & M., 666. Where a party signs a note with the addition to his name •of the word “ trustee,” he is personally liable; nor can evidence be admitted to show that at the time of the execution of the note there was a parol agreement that he should not be personally liable, but the note was to be paid ■out of the trust fund. Conner vs. Clark, 12 Cal., 168.

E. E. A., executrix of J. S. A., made a note by which she promised to pay H. S. H., or his order, $1,097 on demand, &e., and signed it E. E. A., executrix of J. S. A., and it was held that this was the note of E. F. A., and did not bind J. S. A.’s estate. Higgins vs. Driggs, Administrator, 21 Fla., 103; Gregory vs. Lee, 33 Texas, 813 ; Harrison vs. McClellan, 57 Ga., 531; Wisdom vs. Beeker, 52 Ill., 342; Sumner vs. Williams, 8 Mass., 162 ; Davis vs. French, 21 Maine, 21; Cornthwaite vs. First, N. B., 57 Ind., 268.

“ Where an executor accepts a draft drawn upon him by a distributee of the estate, even though the acceptor has money in his hands in his fiduciary capacity belonging to the drawer, the estate will not be bound, but only the executor individually. 52 Ill., 342. In Pinney vs. Administrators of Johnson, 8 Wend., 500, the court say: “It seems to be well settled upon authority that a judgment upon a bond or other security given by an administrator or ■executor, though in his representative character, does not bind the estate which he represents, nor can it be taken upon the execution issued thereon. The description of the defendants in the bond as executors or administrators is surplusage, and they are chargeable upon such a bond and judgment only in their own right. It is their personal contract and whatever their rights may be under such a bond or judgment if paid, it is not a legal judgment or debt against such estate, and cannot be pleaded as such.” In Tinsley vs. Lee, 51 Ga., 482, it was held that a decree rendered against the defendant on a bill in equity, with the word “executor” added to his name without more, binds his personal goods and chattels, and that an execution to be levied of the goods, &e., of Thomas W. Howell, ex-ecu tor of ¥m. Tinsley, deceased, was supported by such a decree and properly leviable on Howell’s individual estate. In Cooper, Ex., vs. Livingston, 19 Fla., 684, it is held that if the action be against the defendant, executor upon a note of the decedent, the judgment should be that the plaintiff recover against the defendant “ as executor, &c., * * to be made of the goods, &c., and of the estate of the deceased, and that he have execution therefor,” and not against the defendant generally. In Hardy vs. Call, 16 Mass., 530, the referee reported that Hardy, whom Call, as administrator of the goods and estate of Gfeo. Palmer, sued, sho'uld recover against Call “ in his said capacity of administrator,” and judgment was entered up in the same language, and it was held not to be a judgment-against the goods and the estate of' the intestate. The court say: “ The words descriptive of the capacity in which the plaintiff in the .original suit prosecuted, have no legal effect and may be considered as surplusage. But whether so considered or not it is very clear that no judgment has been rendered against the goods and estate of Palmer, the intestate.”

Confining our view to the decree as set forth in the record we see nothing in it professing to bind any trust property or to bind anything but the defendants therein, and them personally; and the saméis the case, if we permit ourselves to consider the whole record. The use of the word “trustees” is not effectual to provide for satisfaction out of the property of any one but Robinson and Mitchell. We find nothing in-the record to deprive either this decree, or the notes as described assuming we may consider them, of their personal obligation on the makers. The word “ Trustees,” in our judgment, no more changes the effect of the judgment than it does that of the notes. Strike it out and no change is' made. The decisions treat it as surplusage; Trustees and other fiduciaries may exempt-themselves from personal responsibility by using explicit words to show such intention, but in the absence of such words they are held bound. There is no language here confining the agreement to pay out of the trust estate. 12 Cal., 168 ; Story on Promissory Rotes, §63. Assuming that we are not concluded by the decree as to what was the legal effect of the promissory notes, we still do not see that the interest of Durkee in the land purchased from Bostwick and wife changed the effect of the notes as the personal obligation of Robinson and M.itchell. A conveyance of land to them and another or for the benefit of themselves and another was as good a consideration as if made to them only or for their benefit, independent of Durkee.

IV. The fourth point is stated thus : “ This is an independent bill in equity praying to have the former decree against Robinson and Mitchell declared a personal' decree and asking for an injunction to restrain the master from carrying out a third and different chancery decree,” and it is urged that equity will not enjoin another equity suit on an independent bill, but that it must be done by petition in the same suit.

It is not sought in this case to change the form of the decree of August 13, 1880, or to give to it any other character than the law gives to it, but simply to obtain satisfaction of it, if it be a personal decree, and of which we think there is no doubt.

In Daniel’s Chancery Pleading and Practice, 1567, (Cooper’s Edition) we find that “ proceedings in one suit in equity may be restrained by an injunction in another suit,” and the case is put of a stakeholder who has been sued by one person claiming an interest without making another interested a party, filing a bill of interpleader and restraining proceedings in the former suit. In a note, it is said that the practice is not limited to interpleader suits, but has often been applied to the staying of concurrent suits in •equity after decree in one suit and has prevailed in the enjoining of suits in the same chancery court. However, in the same note it is stated that Hoffman’s Chancery Practice !lays down the rule that an injunction is not the proper mode •of staying proceedings under a bill or decree, but that the •court should be applied to by petition for an order, “ citing Dyckman vs. Kernochan, 2 Paige, 26, and Newton vs. Douglass, an uureported case.” In Dyckman vs. Kernochan, the former purchased pendente lite all of McChain’s interest in the mortgaged property, but it did not appear that MeC. or Seymour under whom he claimed, ever had any interest an the premises decreed to be sold. The Chancellor said that even if any interest existed in MeC. or his grantee, which rendered the decree irregular as against that right sifter the death of the former, the assignee had not pursued the proper course to correct the irregularity. “ This is not cl bill of review, and it is not the practice of this court to permit an injunction bill to be filed either by parties, or previous to the proceedings in a former suit, to restrain proceedings under the decree. The court can restrain its own officers without an original bill being filed for that purpose. The master went beyond his authority in allowing an injunction to restrain the defendants from carrying into effect a decree of this court. If any order was proper the present complainant should have applied by petition to the Chancellor.” In Smith vs. Am. L. I. & T. Co., Clarke’s Chancery Reports, the Vice-Chancellor held that an injunction would not lie by bill to stay proceedings under a bill or decree, where the application was made by a stranger to the original suit, but that a petition in the original suit was the proper remedy. “As a general rule,” he says, “an injunction is not the proper mode, whether the application foe by parties or privies, or by a stranger who has filed a new bill. There is reason in this rule,” for under “ a contrary rule it would be difficult in some cases to foresee any termination to litigation.” In Greenlee vs. McDowell, 4 Iredell Eq., 481, it is held that an injunction to restrain the execution of a decree in chancery cannot be granted. Here the purpose was to review a decree pro eonfesso, and for leave to answer and for an injunction restraining the collection of the money decreed to be paid. It is said in the opinion that “ an application to a court of equity to restrain its own proceedings is certainly a novelty,” and the court is “ not apprised of any precedent for such a bill,” and again, u when a court of equity is called on to enjoin its own proceedings it is asked to pronounce that to be iniquitous and wrong which it has already declared to be right and proper, and when it made this latter declaration it was perfectly competent to declare it wrong if it were so.” In Medlock vs. Cogburn, 1 Rich. Eq., 477, a bill was filed to enjoin Oogburn from acting as the committee of Medlock, who had been adjudged upon inquisition de lunático to be incapable of managing her affairs. It was held that the proper course was to apply for leave to traverse the inquisition The bill was treated as such an application, though dismissed as a bill, and an order made for leave to traverse at the “ next sitting of the General Sessions for Edgefield District.” It is true in this case it is said, “ the proceeding is altogether irregular. The court does not enjoin its own proceedings; though it may rescind or suspend its own proceedings on proper cause shown.” In Alabama, in Wright vs. Philips, 56 Ala., 69, it is held that “ as a general rule a court of equity will not enjoin its own decrees at the instance of a party or privy, but will leave him.to seek his redress by a bill of review under the statute, (Code 8404) or by petition under the rules of Chancery Practice,” and further, that “ when a person seeks to prevent the execution of a decree to which he is not a party on account of matters outside of the issues in the cause, though germain to it, the proper practice ordinarily is to obtain from the court or Chancellor a restraining order to suspend proceedings under the decree, upon proper security being given.”' The above is, we think, a fair statement of the authorities, to which we have access, in favor of the rule contended for by appellants.

In eases where a party to an absolute and final decree or one standing in privity to him, seeks to review it or restrain its enforcement, the decree having been enrolled, we think it may be done in this State in eases of fraud by an original bill for fraud ; (or bill of review, 2 Otto, 454 ;) or, if there is error in law arising upon the pleadings, proceedings or decrees, a bill of review without leave will lie ; or if there is a discovery of material new matter of fact, such as the party, by the use of reasonable diligence, could not have known, then a bill of review with leave of the court will lie; and where a final decree has, after a decree pro oonfesso, been enrolled, and twenty days have passed, and such decree becomes final, the defendant may, by motion, under our practice,have the decree opened and a defence upon the merits let in, where he is guilty of no laches and his failure to set up his rights' in the time required was occasioned by causes beyond his control, and by obstacles insuperable in their character, and he has a good defence. Stribling vs. Hart, 20 Fla., 235. Bills of review lie only in favor of parties and their privies. Thompson vs. Maxwell, 5 Otto, 391. The cases in 2 Paige and 4 Iredell, are cases brought by parties to the original decree, and are not in point, as the case at bar is by a stranger. In the case in Clarke’s Chancery, however, the complainant had assigned mortgages held by him to the company as collaterals for a debt due the company by him, and proceedings had been instituted foreclosing the mortgages without making him a party.

Although we do not mean to commit this court here to a ruling as to what can be done in a case between parties toa former decree, we find, however, that the New York cases ■cited are practically overruled by the Court of Appeals as authorities against the power to issue an injunction, in Erie R. Co. vs. Ramsey, 45 N. Y., 637, where it is held that “ a ■court of equity has power by injunction to restrain proceedings in another equitable action in the sanie court.” Of Smith vs. A. L. J. & T. Co., and Lane vs. Clark, (Clarke, 307 and 309,) it is said they “do not hold that there is no jurisdiction to grant an injuntion. The}7 are to the effect that it is not as a general rule a proper mode of obtaining a stay of proceedings.” In the same case it is said : “ If it be said a court cannot restrain itself, the answer is, a court of equity never sought or claimed to restrain a court at law, but did enjoin the suitors in it.” And again, quoting from Willard’s Eq., it says : “ As an injunction to restrain proceedings at law is directed only to the parties and assumes no superiority over the court in which the action is pending, but is granted solely on the ground that some equitable circumstances exist which render the prosecution at law against conscience, there is no reason why an injunction ■should not be granted by the court in .which the action is pending, if the court has jurisdiction both at law and in ■equity. * * But there is not such lack of precedent and authority for the position that a court of equity will •entertain a fresh action in it, and in that action join suitors in an action then pending before it. An action of interpleader is such a case. * * * In Warrington vs. Wheaton, (1st Jac,) an injunction was granted to restrain parties to another action in the same court, and this though the objection was made that the same relief could be had in the original action where the parties were the same. And though the reasons given by the court may be peculiarly off force in that class of cases, still it is shown that in cases demanding it jurisdiction exists, and an injunction may issue in one action to affect the proceedings in any action already pending in the same court.” Crawford vs. Fisher, 10 Simon, 479. After alluding to the power of a court of equity to interfere to prevent a multiplicity of suits or to draw to one action cognate questions and interests sought to be litigated, as well as established, it also says: “Uor is it without other precedent that a court of equity may question the proceedings in another court of equity. Thus one court of equity has overhauled the decree of another court for fraud, contrivance or covin in obtaining it.”

In Montgomery vs. Whitworth, 1 Tenn. Chan., 174. Chancellor Cooper says: “The American cases holding that an injunction will not lie to restrain a decree in the same court may all be traced back to the rulings cited by Hoffman. Both cases merely decide that an injunction granted by a master to stay proceedings in another suit is not authorized.” The effect of the rule requiring application to be made in the original cause makes it “necessary for the party aggrieved not merely to set out his case in his bill impeaching the former decree, but to prepare a similar statement. in the form of a petition in the original cause, * * two pleadings, precisely the same in substance and only differing in form * * to accomplish the end which ought to be obtained by one proceeding.” Speaking of the reasons given in 1 Clark, 307, he says : “ But it is not easy to see how this would follow. The injunction in the new suit would be as much under the control of the court as the restraining order in the original suit. And e contra the restraining order in the original suit would seem as likely to render it difficult to foresee the termination of litigation as the injunction in the new suit. This reason will not stand the test of logic.” As to the reason of iniquity and wrong given in 4 Iredell, he says: “ But if so, would it not. equally follow from an order of supersedeas granted on petition in the original cause ? What is the distinction between an injunction and a supersedeas, that the dignity of the court should be impeached by the one and not by the other ? The truth is the stay of a decree of the same court, upon good cause shown, whether it be by injunction or supersedeas, is upon precisely the same ground that injunctions are often granted to stay proceedings in other courts, namely, that these proceedings are wrongful either by reason of fraud, error of law, apparent or outside facts. The court of chancery is not infallible any more than a. court of law, and need not hesitate to correct its own errors by the same means with which it ordinarily undertakes to correct the errors of other courts. The reason given by the Yorth Carolina Court is not more satisfactory than that, assigned by the Yice Chancellor of Yew York.” These, views strike us as very forcible.

Speaking of the 23d Ordinance of Lore!.,Bacon, which is in these words: “In the case aforesaid where an injunction is to be awarded for stay of suit at common law, if like suit be in chancery, either by scire facias, or privilege or English Bill, then the suit is to be stayed by order of the court as it is in other courts by injunction, for that the court cannot enjoin itselfChancellor Cooper says : “The Ordinance of Lord Bacon and the decisions of Chancellor Walworth declare the same rule, which is that the restraining order, whether it be by injunction in the new suit or supersedeas in the original, should be warranted by public-order made in court. This is all that was decided by Chancellor Walworth in Dyckman vs. Kernochan. It is not the case of the common injunction or such as the master is authorized to grant. The application should be to the court.” He then refers to the Tennessee statute giving a Chancellor power to grant an injunction, and says it “ has changed the English rule of practice followed by Chancellor Walworth and authorizes the writ to be granted out of court by a Judge or Chancellor.” The power of a Circuit Judge in Florida to grant an injunction in vacation is too well established to require comment. See also 3 Tenn. Ch., 502 ; and Basye vs. Beard’s Ex’rs., 12 B. Monroe, 581; 1 John. C. Reports, 40l; 8 N. Y., 1.

Judge Manning in Wright vs. Phillips, supra, speaking of the quotations made above from Willard’s Equity, says they “ suggest a good reason why in some instances perhaps a chancellor should not, from a too sensitive idea of unfitness, refuse to perpetually enjoin a party from carrying into effect a decree he had rendered in favor of such party. A court of equity upon its being properly shown that it had hy fraud or imposition been led to make an unjust dedecree would not hesitate to annul it. And if the same effect can be produced by perpetually enjoining the execution of a decree, it may sometimes be allowable for the court which rendered it to do so. Questions of this sort are most likely to arise in cases of bills of review or in the nature thereof.” 12 B. Mon., 581. In High on Injunctions, §270, it is said that the authorities are “ somewhat conflicting and wholly irreconcilable and “ upon principle it is difficult to perceive any satisfactory reason why the jurisdiction should not be extended to restraining the enforcement of decrees in chancery upon the same grounds and for like reasons as those which underlie the jurisdiction in restraint of the enforcement of judgments at law. * * Ho higher degree of inviolability is perceived as atattaehing to one judicial determination than the other. In neither event is the process of injunction directed to the •court itself, but only to the parties litigant.”

The U. S. Supreme Court, (State of Florida vs. Anderson et al., 91 U. S., 667,) in the exercise of original jurisdiction, enjoined the execution of a decree for the sale of a railroad, which Anderson and other bond holders of the same class had obtained in the U. S. Circuit Court, against a railroad company for the sale of the road. The State sued in behalf of itself and the Trustees of the I. I. Fund of Florida. The State and Trustees had, prior to Anderson et al., instituting their said suit, begun a suit in the State court to recover a balance of purchase money due the Trustees for the road, and for which a vendor’s lien was claimed, and had made all known parties claiming liens defendants. Afterwards Anderson et al., began their suit in the U. S. Circuit Court against the company and trustees, and claimed that their bonds were still a lien on the road or at least entitled the holders thereof to claim the unpaid purchase money and prayed a sale of the road to pay their demand ; but they dismissed as to the trustees, and under an arrangement with the company obtained a decree declaring the bonds a first lien on the road, and directing a sale of it to pay them. After execution had been issued on the decree and before the bill was filed in the Supreme Court, Anderson et als. filed a bill to carry such decree into execution, making the trustees parties and charging them with intent to seize the road, and praying an injunction. The injunction of theU. S. Supreme'Court restrained Anderson et al., “ from selling or proceeding to sell said railroad and property by virtue of their said decree or any decree supplementary thereto in the same case,” but did not profess to restrain the TI. S. Circuit Court. The proceedings of the bond holders was held under the cir-cu'mces of the case to be a fraud on the trustees.

.We do not thinkit necessary to make the master a party but are of the opinion that an injunction against the parties complainant in a case like this is sufficient, and that on being served with a copy of such injunction or otherwise duly notified of it he should take no further proceedings.

Where a decree has been obtained and is charged to be a fraud, as in the case at bar, and the transactions upon which it is based are set up and charged to be, with the decree, fraudulent contrivances to protect the property of the defendants from debts, and a sale of the property covered by such alleged fraudulent decree is about to take place, we see no satisfactory reason why the creditor seeking to reach the debtor’s property should not, he being no party to the other proceedings, have an injunction from the same court which rendered the decree to restrain the sale, which must, if made, lead to further complication, particularly if new parties purchase. Rone of the reasons alleged against the practice strike us as good in such a case, and.we think the petition in the same court in the original- cause cumbersome and unnecessary.

Y. The fifth point is, the bill does not allege that the complainant has exhausted the remedy under its execution by levy or attempted levy on trust property or other property of defendants.

(a.) In Barrow vs. Bailey, 5 Fla., 9, the doctrine laid down is that “ if a creditor seek the aid of a court of equity against the real estate of his debtor he must show a judgment at law creating a lien upon such estate ; and if he seeks such aid in regard to personal property he must show an execution sued out and pursued to every available extent.” In Mississippi, Wisconsin, Alabama and Illinois the requirement as to reaching real estate is the same as that prescribed in the above case. Vasser vs. Henderson, 40 Miss., 519 ; Cornell vs. Radway, 22 Wis., 260; Dargan vs. Waring, 11 Ala., 988; Wightman vs. Hatch, 17 Ill., 281. See also Bump on Fraudulent Conveyances, 522. In-Maine, whose decisions are referred to as requiring further-proceedings by a judgment creditor, a judgment is not a* lien on real estate, but there must be a levy of an execution to create it. Dana vs. Haskell, 41 Maine, 25. In, New York, the decisions are not easily reconcilable. Brinkerhoff vs. Brown, 4 Johnson Ch. R., lays down the rule-announced in Barrow vs. Bailey. 54 N. Y., 129, does not. require the return of an execution, but only judgment and issue of execution, which we have here.

(ib.) What we have said above as to what is necessary to-enable a creditor to pursue real estate in equity is applicable only to such as the debtor has held the legal title to, and not to such as is deemed equitable assets. Where one purchases land and has the title made to his wife in fraud of his creditors it is deemed an equitable and not a legal, asset, and, though this is done to hinder, delay and defraud creditors, it is considered by at least some of the courts not to be within the Statute of Frauds, still equity will subject the property to the payment of his debts. Carlisle vs. Findell, 49 Miss., 229; Gowing vs. Rich, 1 Iredell, 553. The interest of the debtor in such a case cannot be sold on execution at law. There has never been any legal title in him for the-judgment lien to take hold of or the execution to operate on, as in the case where he has had such title and conveyed it fraudulently; in which case equity regards the conveyance-as inoperative on account of the fraud. The ordinary and well established rule is that before a creditor can resort to, equity in pursuit of such an equitable asset in aid of an execution he must have pursued his legal remedies to every available extent, and have a return of his execution nulla bona. The creditor’s right to relief in such a case, i. e., the property being such that it cannot be taken on execution. ■at law, depends upon the fact of his having exhausted his legal remedies without being able to obtain satisfaction, •and the best if not the only évidence of this, is the actual return of an execution unsatisfied. The principles above announced are supported by the following authorities: Freemán on Judgments, 348 ; Jones vs. Green et al., 1 Wall., 330 ; Carlisle vs. Tindell, 49 Miss., 229 ; Gowing vs. Rich, 1 Iredell, 553; Page vs. Goodman, 8 Iredell, (Eq.,) 16; Howe vs. Bishop, 3 Metcalf, 26 ; Webster vs. Folsom, 58 Maine, 230 ; Low vs. Marco, 49 Maine, 45 ; Gray vs. Faris, 7 Yerger, 154; Haggerty vs. Nixon, 26 N. J., (Eq.,)42; Hyde vs. Chapman, 33 Wis., 391; McDowell vs. Cochran, 11 Ill., 31; Tyler vs. Peath, 8 Mich., 63 ; Clarkson vs. DePeyster, 3 Paige, 320 ; Beek vs. Burdette, 1 Paige, 305 ; Miller vs. Davidson, 3 Gilman, 518 ; 54 N. Y., 128, 129.

(c.) In view of the allegations of the bill, and particularly as this is not simply a case of a purely voluntary conveyance, we do not think there is, in so far as the bill seeks lo reach lands of which the legal title has been in Robinson, anything in the argument that it is not shown that 'there is no other property of defendants to be levied on. Fox vs. Moyer, 54 N. Y., 131; Bump on Fraudulent Conveyances, 539.

In Vasser vs. Henderson, supra, it is held that conveyances made to hinder and defraud creditors are declared by the 'Statute of Frauds to be “ clearly and utterly void ” as •against creditors affected by them, and “the rightof the judgment creditor to levy his execution upon property so conveyed, and to proceed at law to subject it to sale cannot be denied, without any reference to the question whether the debtor possesses other property or whether there are other defendants having property liable to the same judgment. In other words, it is not necessary in order to justify the levy of an execution upon property fraudulently conveyed that the plaintiff should show or the fact exist, that neither the party who has made such conveyance, nor his co-. defendants in judgment have other property upon which a, levy can be made. We do not mean to say that every vol-» untary conveyance is a fraudulent one within the meaning, of the statute. The plaintiff making a levy on property undertakes to show that upon the circumstances of the» particular case the transaction is one which the law will not sanction. In Wightman vs. Hatch, supra, it is held that “ a party has a right to the same remedies to enforce-the collection of a decree in equity for a specific sum of-' money that he has to enforce a judgment at law, and he-may remove fraudulent conveyances out of the way of his-, execution ; and a bill may be filed to remove fraudulent incumbrances or conveyances as soon as the judgmeut is ob-. tained without proceeding to obtain satisfaction out of-' other property.”

(d.) What we have said can be easily applied to the facts^ of this case. As to all the real estate of which the legal title has been in Robinson we think the bill sufficient, but-as to such as the title of has not been in him but was con-, veyed directly to Mrs. Robinson, we do not think the bill shows a sufficient exhaustion of legal remedies.

We have not failed to consider the case of Case vs. Beau, regard, 101 U. S.; Hayden vs. Thrasher, 18 Fla., and West vs. Chasten, 12 Fla., and other cases where the equitable» jurisdiction was founded upon a partnership lien or other-ground of such jurisdiction independent of an exhaustion of legal remedies.

VI. The sixth point is that the bill has been dismissed by the clerk as to Mitchell, and therefore no decree can be-pronounced against C. L. Robinson alone,, it being urged by appellants that the note was a joint note, and the decree-against them jointly. This is not a ground of demurrer,^ ■and we do not think the effect of this order can be properly-passed on at this hearing, particularly as the question was ■not raised in the Circuit Court. Neither Mitchell nor the ‘complainant below having appealed, we do not think we ■should pass on the legality of the order.

VII. The seventh ground is that the bill is multifarious. This objection only applies where a complainant claims ¡several matters of different natures by the same bill, and where one general right only is claimed the demurrer will not hold even though the defendants have separate and distinct interests: as where a person claiming a general -right to the sole fishery of a river files a bill against a number of persons claiming several rights in the fishery as lords •of the manor, occupiers of lands, or otherwise. 1 Daniel 'Chancery Pleading and Practice, 341, m. p. In Hayden vs. Thrasher, 18 Fla., 795, it is held that a bill in the nature of a creditor’s bill is not multifarious because it prays discovery and relief against several who are not united in interest and who may be strangers to each other, as the object of the bill is to reach sundry assets of the principal defendants in their several possessions. Dummock vs. Bixby, 20 Pick., 368 ; Sears vs. Carrier, 4 Allen, 339, 341; Tucker vs. Tucker, 29 Mo., 350. Sears vs. Carrier was a bill to enjoin one Carrier, who was alleged to have obtained fraudulently from Sears’ intestate four promissory notes, from collecting them. The notes were each made by a different promissor, and all the promissors were made parties to restrain them from paying. The bill was claimed to be multifarious because they were distinct contracts made with •distinct parties who had no connection with each other, yet the court said: “ But as to Carrier, the plaintiff has the right to join all these claims in one suit. He is not obliged to bring a separate bill against him for each of the notes. The makers of the notes are rightly joined as parties on account of their relations to Carrier, and so the bill is not multifarious.” Where the judgment is joint, and separate conveyances are made by each of the debtors, all the grantees may be united. Bump on Fraudulent Conveyances, 537; Planter’s Bank vs. Walker, 7 Ala., 926; Daniel’s •Chancery Pleading and Practice, 339, note 1.

The conveyances and mortgage specifically enumerated, and alleged to be fraudulent, are all either to Mrs. Robinson directly, or to another in trust for her, and the main or one purpose of the bill is to reach them, and the right to •do so is “ one general right.” The authorities cited go much further than is required to sustain the bill as to these features of it against this objection, but there is a feature which we think subjects the bill to objection. The stating part and prayer of the bill show that one purpose of the bill is to relieve land of which the complainant claims to be the owner, of the cloud which a sale by the master, Marcy, will, and which the decree under which he acts, does •cast upon it. This we do not think can be held to be within the general right claimed by the other features of the bill: the former right is that of a creditor to have payment ■of his debt; the latter is that of one claiming to be the •owner of property to have a cloud removed and a sale prevented, and is of a different nature, though it arises out of the same transaction as the alleged fraudulent mortgage .and decree do. Daniel’s Chancery Pleading and Practice, •343, 344. It is, however, only in so far as the bill claims relief.as to the laud owned by the plaintiff that it is objectionable, for, as indicated above, the mortgage and decree, in so far as they are alleged to be an obstacle to the collection of complainant’s debt, or affecl property of Robinson .and Mitchell, or either, are within the general right claimed by the complainant. Attorney-General vs. Merchant Tailors’ Co., 1 M. & K., 189 ; Newland vs. Rogers, 3 Bar. Chan. R., 433. Under Chancery Rule 52, this defect may be cured by amendment. The rule as to multifariousness in a case like this, is one very much of convenience. We think it better practice that the demurrer on this ground should be sustained with leave to the complainant to amend.

VIII. The eighth point urged is that the claim is “barred bj" laches and the statute of limitations—the deeds sought to be cancelled having been made ten years ago.”

A careful reading of the bill will disclose that the case it makes is not one of mere voluntary conveyances, in which the complainant seeks to subject the property merely because Robinson’s money paid for the property where it was conveyed by another to Mrs. Robinson, and because the conveyances made by him or him and Mitchell were without consideration. There is a full statement of specific fraudulent acts, and besides, the property is alleged to be in fact still Robinson’s property, and the title of the alleged fraudulent grantees is alleged to be, “ so far as it is vested in them, in trust for him,” and the property in Mrs. R’s. name is alleged to have been not' only paid for by R. or conveyed by him without consideration, but the several transactions are alleged to have been to defraud Bostwick and wife and other creditors, and it is further alleged that R. has asserted the entire and exclusive management and control of the property so fraudulently conveyed, negotiated the purchase and sale thereof, paid taxes and dealt in all respects with said land as his own property except that for his own fraudulent ends he has used the names of his wife and Miss Eoss and Seymour to conceal and cover the title from his creditors. It cannot be said that the bill is one of mere allegations imputing motives of fraud. The particular manner in which the acts have been .done, and the partieular end and design sought to be accomplished, are fully set forth in the bill, and are admitted by the demurrer. We do not see what difference it makes that the deeds were made ten years ago if it be'true that'the lands are still Robinson’s in fact,, and that in so far as vested in others it is in trust for him, although- vested or attempted to be vested to defraud creditors, and further' true that he has dealt with them in every respect as his own property, “except for his own fraudulent ends he has used the name of” others “to conceal and cover the title from his creditors.” The continuation- of practices for such-fraudulent ends of however long continuance is,- under the statement of the bill, nothing but an attempted concealment of thelegal title to that which the demurrer admits to be' Robinson’s property. We do not think that such use by one of the names of others can of itself create any right in such others, or in the one to .say to the creditors that they shall not have such property applied to the debts of-its present real owner on a decree whose validity is settled, and of but four years standing. If there be facts and circumstances making the claim stale they can be brought out by the proper pleading, but we do not think, taking the bill in all its allegations, that there is stálériess or laches shown by it.

IX. Although there is ground for equitable relief in the bill, and the demurrer is general, yet as the bill is multifarious, the demurrer should have b'eén sustained.

The order overruling the demurrer is reversed and the case is remanded for further proceedings, not inconsistent with this opinion.