25 Me. 313 | Me. | 1845
The opinion of the Court was drawn up by
The facts stated in the bill, so far as they are important for the decision of the questions presented by the demurrer, may be briefly exhibited. Gibson Smith recovered a judgment against John R. Clark, in January, 1844, and assigned the same by verbal agreement to the plaintiff, to whom the execution had been delivered. Clark had before, in March, 1843, conveyed all his real and personal estate to his sons, the other defendants, in fraud of the rights of his creditors. A certain sum was paid upon the execution, which remains unsatisfied for the balance. Clark made an arrangement to make a set-off and pay it, and thereby occasioned delay and the loss of an attachment made upon the original writ, and then refused to fulfil it; and the plaintiff has been wholly unable to collect the balance, which still remains due. The bill does not allege, that the plaintiff has made any levy upon the land, or any attempt to seize and sell the goods, or that an officer has returned the execution without being able to obtain satisfaction, or that the plaintiff has exhausted his remedy at law. For these reasons the defendants demur.
Courts of equity are not tribunals for the collection of debts; and yet they afford their aid to enable creditors to obtain payment, when their legal remedies have proved to be inadequate. It is only by the exhibition of such facts, as show, that these have been exhausted, that their jurisdiction attaches. Hence it is, that when an attempt is made by a process in equity to reach equitable interests, choses in action, or the avails of property fraudulently conveyed, the bill should state, that judg
The plaintiff contends, that this Court has afforded its aid without requiring such preliminary steps to be taken ; but the cases cited for that purpose do not authorize such a conclusion. In the cases of Gardiner Bank v. Wheaton, 8 Greenl. 373, and same v. Hodgdon, 14 Maine R. 453, no such question was made. In the first case the creditor was assisted to reach the equitable interests of his debtor in real éstate, when he could not reach them by a common law process. In the latter case to reach the avails of personal estate conveyed in fraud of his rights. There was a demurrer to the bill in the case of Reed v. Cross. 14 Maine R. 259, one reason for which, was, that it did not allege, that the plaintiff had obtained judgment and exhausted his remedy at law; and the demurrer was overruled. The bill, however, among other matters, sought the specific performance of a written contract for the conveyance of real estate. In Traip v. Gould, 15 Maine R. 82, the bill did allege, that the execution had been returned by an officer in'part unsatisfied, and that the estate, which had before been fraudulently conveyed, had since been conveyed by the debtor to the plaintiff, thereby placing him in a position as favorable to receive the assistance of this Court, as he could have been by a levy upon the estate.
In the case of Gordon v. Lowell, 22 Maine R. 251, the bill alleges, that the execution had been returned unsatisfied. The plaintiffs had not levied upon the estate fraudulently conveyed, and the Court did not aid them, by acting upon the
The Court does not appear in any of these cases to have overlooked the rule, which requires a party to do, all which the law will enable him to do, before he seeks its aid to obtain payment from some fund which he cannot reach by the ordinary process of law.
The demurrer is allowed; and MU dismissed, with costs for defendants.