Traip v. Gould

15 Me. 82 | Me. | 1838

After a continuance for advisement, the opinion of the Court was drawn up by

Emnix J.

The bill alleges that the plaintiff on the application of Gould to purchase a stock of cloths and other articles of merchandize suitable for carrying on a merchant tailor’s establishment in Bangor, on the 26th of October, 1835, sold him goods to the value of 1234,77 on a credit of six months; that Gould opened such an establishment there immediately after, and continued in business till June 4, 1836. That on the 19th of February, 1836, Gould, purchased of John C. Burbanlc, a house lot on the Kendus-keag river in Bangor, on which was a house frame partly boarded. That in three days after Gould purchased and took his deed of the lot, he conveyed it to George C. Angier, an Attorney at Law, without consideration, and at the same time Angier executed a deed of it to Gould’s wife, and delivered it to him,"And it was then agreed, that the deed to Angi'ér should be recorded, hut that the deed to Gould’s wife should not be put on record, but should be kept secret, that it might appear to Gould’s creditors, that he had no interest in the land. That Gould afterwards expended the proceeds of his business in finishing the house on the lot and other improvements, and when tenantable he moved into the house, and lived there till he broke up business in Bangor in June, 1836. That the lot and buildings arc worth ^1500. That though the plaintiff’s debt was payable April 26, 1836, nothing was paid up to June 4, 1836. That Gould was frequently writing that he would be able in a short time to pay him. That calling on him on June 4, 1836, the plaintiff was surprised to find Gould, had no visible property but a sick horse, which had been sent out of the county, and the remnant of goods bought of the plaintiff, which remnant Angier claimed by a bill of sale from Gould. That they were attached by plaintiff and Angier gave up his claim on plaintiff’s assuming a small liability, which Angier said he was under for Gould, and plaintiff also attached Gould’s interest in the house lot, not knowing of the deed from Angier to Gould’s wife. That Angier would give no information on which plaintiff could rely. That in June, 1836, notice was given to Angier not to convey. That the plaintiff would file a bill in equity, and Angier said the Court had no jurisdiction, and he afterwards, on June 30, 1836, conveyed the land by quitclaim deed to Albert Dole, without consideration, Dole having notice of plaintiff’s claim. That at Oct. term, 1836, plaintiff recovered judgment against Gould, for $1266, 43, damage, and $10,82, cost, and that the execution was on Oct. 31, 1836, committed to a sheriff, who returned the proceeds of the goods attached $159,02, and could find no property of Gould’s to satisfy the balance or any part of it. That the plaintiff did not know of the existence of the deed to Gould’s wife till November 9, 1836, when Gould, having repented of his sins, delivered said deed to plaintiff and executed a deed to the plaintiff, which is recorded. That Gould is insolvent, and that the deeds to Angier and Dole are a fraud on the plaintiff. That he has applied to them to release their interest, and they refuse. The plaintiff prays they may answer and be compelled to convey to him, or that An-gier may be compelled to pay the value of the land in money, and for further relief.

Gould is defaulted.

To this bill there is a demurrer on the part of Angier and Dole.

These two defendants contend, that the plaintiff has mistaken his remedy, and that this Court has not jurisdiction of the case; that if this was a case proper for chancery the Court would not in-' terfere, because the plaintiff might have extended his execution, and if he could have proved the transaction fraudulent, on bringing his action he would have recovered; that the plaintiff has not alleged, that he cannot prove it, or that it is exclusively in the knowledge of the defendants; that the plaintiff does not show any specific lien on this property; and that the bill is very defectively drawn. It is true, tliat the bill is not incumbered with all tile verbiage which is too frequently introduced into bills. And we have abundant cause to regret the redundancy of unimportant repetition, to which wo are often treated. Is not the plaintiff’s case stated explicitly ? Are any circumstances, material to be stated, omitted ? Is not sufficient before us to give the Court such complete possession of the merits of the case, as would enable the Court to do effectual justice to the parties ? It does not use the phraseology of combination, nor of pretences, though it speaks of contriving and confederating. But this is merely discretionary. Would those allegations, without other sufficient equitable matter alleged, give this Court jurisdiction ?' What is within the plaintiff’s knowledge is stated distinctly and positively. The discovery to be made by the defendants is sought in calling them to answer to those allegations.

But we think, that we can discern in the hill a particular respect to the third and fourth rules of this Court, as to practice in chancery cases. All that is necessary, is for the plaintiff to make out such a case, by his hill, as will authorize the Court to take cognizance of his suit.

The case of Jackson v. Burgott, 10 Johns. R. 457, is cited for the purpose of shewing, that Courts of Law have concurrent jurisdiction in all cases of fraud.

To maintain the jurisdiction for relief it is said to be necessary to allege in the bill, that the facts are material to the plaintiff’s case and that the discovery of them by the defendants is indispensable as proof; and that the plaintiff is unable to prove such facts by other testimony.

But the case here stated, shews a trust or equity binding on the conscience of the defendants. And in bills of discovery seeking relief, if any part of the relief sought be of an equitable nature, the Court will retain the bill for complete relief. 1 Story’s Eq. 90.

Here the demurrer admits the truth of the bill. The plaintiff shews, tliat he lias procured a judgment ignorant of the deed to Gould’s wife, and has now become interested in the very property by the deed which lias since been made to him.

By this deed we suppose, in the present state of the case, that lie has derived as much as lie would from a levy, and the expensé of it is avoided. It is alleged in the hill, that the plaintiff can only have adequate relief in the premises in a Court of Equity, and asks for answers from the defendants to all and singular the matters aforesaid.

We have heretofore expressed our reluctance to give encouragement to demurrers, unless for very indisputable causes. This was fully communicated in the case Reed v. Noble, and others pending in the county of Cumberland, to which we refer.

We overrule the demurrer.