72 Vt. 185 | Vt. | 1900
It appears from the master’s report that the defendant brought a suit in the Bennington County Court against her brother, Warren Clemmons, in which she sought to recover a balance which she claimed was due upon her sale to him, in February, 1881, of all her interest in the personal and real estate of
In December, 1894, the orator was appointed assignee in insolvency of Warren Clemmons’ estate, and in June, 1895, he brought this bill, alleging that said judgment was obtained through the fraud and collusion of the parties to that suit, and praying that this defendant be enjoined from enforcing her judgment lien upon the insolvent estate. The defendant demurred to a part and answered the remainder of the bill. The demurrer was sustained and the allegations contained in the part of the bill demurred to were held insufficient, and no appeal was taken by the orator. Upon the coming in of the master’s report, the Court of Chancery, pro forma, overruled the orator’s exceptions thereto and his motion to recommit, and entered a decree dismissing the bill with costs, and the orator appealed.
The defendant presented the judgment which she obtained in this court to the Court of Insolvency, and it was allowed. The orator appealed to the County Court, which rendered judgment for the defendant, and there was an affirmance by this court at the May Term 1897. 69 Vt. 545.
As the decree of the Court of Chancery, sustaining the demurrer, was not final but interlocutory, the orator could not have appealed from it. Y. S. 981. That decree remained in the Court of Chancery until the final decree was made, when the appeal therefrom brought the whole case here. Upon consideration we hold that the demurrer was properly sustained. If it were found necessary to overrule it in this court, the allegations demurred to would stand admitted, under the rule that the effect of a demurrer is to admit all facts that are well pleaded. The situation would then be that a part of the allegations in the bill
The main question in the case was the one submitted to the master, whether there was a collusive agreement or understanding between the parties to the suit at law, to the effect that the plaintiff therein should obtain a larger judgment than she was entitled to, and thereby defraud the defendant’s other creditors. The master states that this was the proposition upon which the orator based his claim. It was evidently a sharply controverted question, Warren contradicting his testimony in the suit at law and testifying that there was such an agreement, and his sister denying it. It was the master’s province to determine that question upon the evidence, and he has found that there was no collusion, and his finding is conclusive. He finds that the defendant, in the suit at law, had demands upon which the plaintiff was liable with others, which, by the terms of the agreement between the parties, were applicable to the plaintiff’s demand against the defendant and might have been pleaded by him in offset or in payment. Why they were not so pleaded the master is unable to find, but does find that it was not by reason of any collusion between the parties. The mere fact, unexplained, that the defendant in that suit did not plead his demands in offset, does not establish the allegation of fraud and entitle the orator to have the judgment set aside.
