text:
    Owen G. Thorp, an infant, by his next friend, v. Joseph Leibrecht, Paulina Leibrecht and Mina Johnsen.
    [Filed October 17th, 1898.]
    1. While a plaintiff, who calls defendants as his witnesses, cannot impeach their character for veracity generally, he may show that the whole or any part of what they have sworn to is untrue, either by their own examination and the improbability of their own story or by other contradictory evidence material to the issue.
    2. Where defendant conveyed all his property to his wife for a nominal consideration, two months after an action in tort had been instituted against him to recover actual damages for personal injuries, but before final judgment thereon, the transfer was fraudulent as against the plaintiff in that action.
    3. A creditors’ bill alleged that an execution had been-issued on complainant’s judgment and delivered to the sheriff, but did not allege what was done thereunder, nor that the judgment debtor was not possessed of other property than the subject of the suit. The evidence given by defendants, however, showed that there was no other property and that the sheriff’s return was nuUa Iona. — Held, that the case did not show that complainant had a complete remedy by levy on other property, and therefore need not come to this court.
    Heard on bill, answer and proofs.

      Messrs. Linn & Speer, for the complainant.

      Mr. James R. Bowen and Mr. Henry Puster, for the defendants.
   Pitney, V. C.

The object of this bill is to set aside a conveyance made by the defendant Joseph Leibrecht, through an intermediary, to the defendant Paulina, who is his wife, of two certain pieces of real estate situate in Jersey City. The ground for this relief is alleged to be that the said conveyance was made to defraud the complainant, who, at the time of the conveyance, occupied the position of a creditor of Joseph, and has since obtained a judgment upon his claim. The suit which so resulted was based upon a tort committed on November 2d, 1894, and was commenced on the 9th of February, 1895, was litigated and resulted in a final judgment on the 4th of May, 1896, for the sum of $5,038.57, damages and costs. The conveyance in question was made on the 12th of March, 1895, two months after suit commenced, for the nominal consideration of $1. This bill was filed May 7th, 1896, and the answer of Leibrecht and wife August 7th, 1896.

Subsequently, November 6th, 1896, and while the legal title rested in Paulina Leibrecht, the defendant Mina Johnsen obtained judgment against Paulina in the circuit court for the county of Hudson, for the sum of $4,030.65 of damages and $30.02 costs, and, upon petition based upon said judgment, was admitted as a defendant, and answered November 25th, 1896.

The bill alleges that the conveyance from the husband to the wife was made for the purpose of defrauding the complainant, and the consideration of $1 mentioned in the deed of conveyance supports this contention and makes out a prima fade case.

But the defendants Joseph and Paulina, by their answer, set up a consideration in this wise:

[Omitting statement of the pleadings and admitted facts.]

The complainant, not satisfied to rest his case upon that state of facts, entered into evidence upon the subject. He entered into the enemy’s camp, and called as witnesses the defendants Joseph Leibrecht and his mother-in-law, Mina Johnsen, who holds a judgment against the wife.

The testimony of these two witnesses, which, if credible, makes for the defendants, was unsatisfactory in the extreme, and well-nigh if not quite incredible, by reason of its own inherent improbability.

[Statement of their evidence omitted.]

bio witnesses were offered by the defendants in support of the statements of Leibrecht and Mrs. Johnsen, although at one time it was said that the defendants expected to call the wife, and opportunity was given for that purpose. The husband of Mrs. Johnsen is alive, and no reason was offered why he should not have been called.

The defendants, in this regard, seem to have relied upon a •rule of evidence which they assert prevails, viz., that the complainant, having called these two witnesses, made them'his witnesses and is bound by their answers, and is estopped from setting up that they are either untrue or that the witnesses are incredible.

I do not understand such to be the rule. My understanding of the modern rule is that a party who calls a witness, no matter how adverse, is not permitted to call witnesses to prove that he is generally unworthy of belief, or to contradict him for that purpose. He cannot impeach his character for truth and veracity generally, but he may show that the whole or .any part of what he swears to is untrue, either by his own examination and the improbability of his own story, or by other evidence, contradictory of the evidence of the witness in question, so far as that evidence is material to the issue.

The great and controlling object of the various rules adopted by the court governing the production of evidence is to elicit and establish the truth, and to guard against fraud and imposition. There is no hard and fast rule which compels a jury, or a judge sitting as such, to believe any particular piece of evidence simply because it is sworn to by a living witness. The probability of the story, and the source from which it comes, must be considered, and when it is said that a judge or a jury has no right to disregard certain evidence, its credibility is always assumed.

The foundation and object of the rule forbidding a party calling a witness to offer evidence for the purpose of impeaching his general character for truth and veracity, is to protect the witness against an unfair use of the process of the court. For it is manifestly unfair to compel a person to take the witness-stand, and then subject him to the indignity of an attack upon his character for truth and veracity. Besides, a party has no right to put upon the witness-stand a person whom he knows or has reason to believe is unworthy of credit. By putting him on the stand he does, ordinarily, assert him to be worthy of credit, and, having done so, the interests of justice require that he should not, under ordinary circumstances, be permitted to directly attack his character for truth and veracity. But this rule falls far short of forbidding the party to show, by any legitimate evidence, that the witness has testified to what is not true, in a matter material to the issue. For it is to be observed that while the witness is to be protected against unfair treatment by the party who compels his attendance, he is not entitled to protection against his own misconduct; The party calling a witness has the right to presume that he will swear to the truth, no matter how adverse he may be; and it does not lie in the mouth of the witness, though he is a party, to say to the party calling him, “You knew I was an adverse party, and would be tempted to prevaricate in my own favor, and you had no right to rely upon my telling the truth against my own interests. I have falsified, and you are bound by it.”

This position is illustrated by the practice of discovery in chancery. Originally, it was optional with the complainant to call for an answer under oath or not. Later on it became, in this state at least, necessary for him to do so. Now the old practice has been reinstated. But in all cases, whether the answer under oath was optional with the complainant or not, it was always open to the complainant to deny and disprove its truth, either by extrinsic evidence or by argument based upon its inherent improbability. And yet, when a complainant calls on a defendant to answer under oath as to the truth of the allegations of the bill, he makes him, to all intents and purposes, his witness in that cause. I can see no more reason why a complainant should not be at liberty to prove that the evidence given by the adverse party on the stand, although called by him, is untrue, than that given in writing in an answer to a bill called for under oath.

Now let us, shortly, review the other evidence and see what the result is.

[Review of evidence omitted.]

Another point made by defendants is that the complainant’s cause of action at law being based upon a tort, the relation of creditor and debtor did not exist between complainant and defendant Joseph at the time of the conveyance to the wife, nor until final judgment was rendered, and that Joseph was at liberty to settle his property on his wife at any time before judgment was rendered and entered.

I had occasion to examine one aspect of this question in Boid v. Dean, 3 Dick. Ch. Rep. 193, and refer to what is found at pp. 203, 204 for a discussion of the general question and the authorities thereon. That was a suit by a receiver appointed by a common-law court, under proceedings supplemental to judgment and execution, to set aside a voluntary conveyance of chattels by the judgment debtor, made before the cause of action arose, which was founded on a slander. I found, as a matter of fact, that the transfer was made by the debtor with the view of being able to slander the plaintiff with impunity, and held that it was void as to the judgment creditor. That case went farther than it is necessary to go here in order to give complainant an equitable standing to attack the transfer here in question in two respects — -first, the transfer was made before the cause of action arose or any injury was threatened; second, the damages were unliquidated and liable to be increased by way of punishment of the defendant beyond the actual loss of the plaintiff.

In the case in hand the injury was inflicted and the right of action accrued and became a vested right in complainant before the transfer, and the damages are presumably confined to the actual pecuniary loss of the plaintiff. The declaration sets forth no facts warranting the giving judgment for punitive damages. The extent of the actual damages, as in all cases of personal injuries to the person, may be somewhat speculative, and therefore quite proper for the consideration of a jury; but they are, after all, based upon actual injury and must be so considered, precisely as if the judgment were for the destruction of a building by fire caused by actionable negligence.

Now, it seems to me a startling proposition to say that my neighbor, through actionable negligence, may set fire to and destroy my dwelling, barns, outbuildings and contents, and escape payment therefor by making a voluntary settlement on his wife of all his property before I can get judgment against him.

The defendants, in support of their position, rely upon the language of Chief-Justice Beasley, in Severs v. Dodson, 8 Dick. Ch. Rep. 633 (st pp. 636), as follows: “When a man is in debt, especially if such debts be due, it is certainly not irrational to infer, if he give away his property, that the -intention was to defeat such claims, but such deduction would seem to be most extravagant if, instead of a present indebtedness, he has incurred a mere liability as a warrantor of tiÜe, as a tort-feasor, or as surety on an administrator’s bond. If such responsibilities as these latter, which may, in the long run, be transformed into debts, should have the effect of invalidating voluntary settlements of property, then such settlements would be the most uncertain of legal .transactions.”

This classification — counsel contend — puts a tort-feasor, i. e., one who has already committed a tort upon which no judgment has been recovered, in the same category as mere sureties whose principals have not yet made default, and may never do so (and hence- the principals are under no present liability), or guarantors against contingencies which may never happen.

With great deference to the high authority of the distinguished jurist who used this language, I think it plainly erroneous and feel constrained not to follow it or apply it here, for several reasons. In the first place, the case of a tort-feasor who has made himself liable for damages actually suffered and capable of measurement in money, is clearly distinguishable from that of a surety whose principal has not made and may never make default. In the one the right of action is vested and in the other it is not. In the second place, the language is a merely illustrative dictum upon a topic not under consideration by the court and not necessary for the decision of the cause in hand, and there is no evidence or reason founded in our knowledge of the mode of disposing of business by the court of errors and appeals to believe that it attracted the attention and received the approbation of a majority of that court. In the third place, it was used in the discussion of a rule of evidence and not of law or equity. The question was as to whether a voluntary settlement was to be conclusively presumed to be fraudulent and void as against a subsequent judgment founded upon a contract of suretyship existing prior to the settlement, but where there had been at its date no default by the principal debtor.

The question was under consideration and was elaborately discussed and decided in favor of the view I have adopted by the court of appeals of Maryland, in Boston, &c., v. Trust Co., 82 Md. 535.

The English authorities are in the same direction. Barling v. Bishop, 29 Beav. 4-17, 6 Jur. {N. 8.) 812; Grossley v. Elworthy, L. R. 12 Eq. Gas. 15.8 {1871), 40 L. J. Gh. 480 {1871).

Another point raised by the defendants here was that it did not appear that the complainant had exhausted his remedy at law. The bill alleges that a writ of execution had been issued upon the judgment and delivered to the sheriff of the county of Hudson to be executed, but does not allege what was done under it. Nor does it allege that the judgment debtor was not possessed of other property from which the execution might be made. It abundantly appears, however, by the evidence of the judgment debtor, given at the hearing, that he was possessed, at the time of the issuing of execution and at the time that he was called as a witness, of no property whatever that was liable to execution upon which anything could be realized without the aid of this court. And with regard to the return of the execution which the bill alleges was issued, it appears by a petition put in evidence by the defendants, made by the complainant to the judge of the circuit court in which the judgment was rendered, that an execution was issued to the sheriff of the county of Hudson, and that the sheriff has since duly returned it, “with a return that he could find neither goods, chattels nor real estate whereof to make the said moneys or any part thereof, according to the exigency of said writ.”

This satisfies the requisition of the rule invoked by the defendants, which goes no further than to say that if it appears by the complainant’s bill (as it did in the case cited of Dunham v. Cox, 2 Stock. 437) that the complainant has an execution upon which he may make the amount of the debt without the aid of this court, such state of facts is a bar to his proceeding in this court.

The objection is a technical one, and in this case has no substance whatever.

This disposes of the case as against Leibrecht and wife and also as against the defendant Mina Johnsen, as it is proven that a lis pendens was duly filed in the clerk’s office of the county of Hudson on the 8th day of May, 1896, the day after the filing of the bill.

I come, therefore, not without regret, to the conclusion that the complainant is entitled to relief. No doubt it seems to the defendant Leibrecht hard that all his hard earnings should be swept away by this verdict for damages which he feels he ought not to be liable for, but it is to be observed that the measure of justice dealt out to him by the jury in the action at law is the same that has been for years dealt out to corporations engaged in business which is attended with danger to individual citizens, and he, therefore, has no right to complain.


source: Caselaw Access Project

author: Pitney, V. C.

license: Public Domain

text:
    Samuel C. Dunn et al., executors of Brittin, v. Frank Cory et al.
    [Filed October 17th, 1898.]
    1. Testator gave (1) to the child of J. $1,000, (2) to the children of P. $1,000, (3) to the child of S. $1,000, and declared that, “ in case of the death of any of the above legatees before me, the legacy shall not lapse, but shall go to their lawful issue, if they leave such issue.” J. left several children.— Held, that the word “ child,” in clause 1, should be construed “ children,” and the legacy should be divided among all the children of J.
    2. Bequest to the children of P. P. had had twelve children, seven of whom were living at the date of the will. Only three of the five who had died before that time left children ; and one died between the date of the will and the date of the testator’s death, leaving children. . Six survived testator.— Held, that the children of those who died before the date of the will were not entitled to share with the children of the one who died after the date of the will, and with those who survived testator.
    3. S. had but one child, who died a few months before the will was made, leaving children. — Held, that the word “ child,” in the gift to the child of S., means “ grandchildren.”
    On final hearing on pleadings and proofs.

      Mr. Francis J. Swayze, for the executors.

      Mr. Robert Carey, for the claimants of a bequest.
   Pitney, V. C.

This bill is filed by the executors of Pemberton Brittin for directions as to the distribution of his estate, and involves the construction of several clauses in his will.

By the second paragraph he gives several pecuniary legacies, among others three as follows :

(1) “To the child of John Primrose, one thousand dollars.
(2) “To the children of Pettit B. Primrose, one thousand dollars.
(3) “To the child of Sarah B,oy, one thousand dollars.”

Further on, iu the same paragraph, he says :

“In case of the death of any of the above legatees before me, the legacy shall not lapse, but shall go to their lawful issue, if they leave such issue.”

First. In the case of the bequest to “ the child of John Primrose.” In point of fact, John Primrose, who was the cousin of the testator, left several children, and the question is whether the word “child” should be construed “children,” and the legacy should be divided among all the children. I am of the opinion that it should.

Second. The next case is that of a bequest “ to the children of Pettit B. Primrose, $1,000.”

Pettit B. Primrose had had twelve children, seven of. whom were living at the date of the will, five had died prior to the date of the will, only three, however, leaving children, and one died between the date of the will and the date of the testator’s death, leaving children, and six survived the testator. The question is whether the children of those who died prior to the date of the will are entitled to come in with the children of the one who died after the date of the will and with those who survived the testator.

Of course, we are to ascertain the intention of the testator by considering the language used as applied to all the circumstances, and, in the absence of the use of technical language which has attained a settled meaning, prior decisions are of use only to show what meaning different judges have put upon similar language.

The general rule undoubtedly is that no person can come under the description of a “legatee” unless he is 'alive at the date of the will. And the general rule also is that the word “child” does not mean “grandchild,” or “children” “grandchildren.” An exception to this rule, presently to be stated, is founded in necessity in order to prevent the entire failure of the provision.

There were children of Pettit B. Primrose living at the date of the will, and the bequest will take effect without including the descendants of those who died before the making of the will, so that the argument from necessity does not apply, nor, in this instance, does the testator’s express command that “ the legacy shall not lapse ” apply.

The question, then, is whether or not those children of Pettit who died in testator’s lifetime can be properly classed as “ legatees ” under the so-called substitutionary clause above recited.

If the language of that clause had been, “ In case of the death of any of the above-named children before me the legacy shall not lapse but shall go to their lawful issue,” I should have thought, on the authority of the case of Outcalt v. Outcalt, 15 Stew. Eq. 500, that the descendants of those dying before the date of. the will would have taken, on the ground that the gift would have been an independent gift and not substitutionary.

I have looked at a large number of cases and notwithstanding the great apparent conflict of authority in England and also in this country, I am constrained to adopt the view that the construction adopted by Sir Richard Malins, In re Potter’s Trust, 8 Eq. Cas. 52 (1869), followed by him in subsequent cases, the latest being In re Lucas’s Will, 17 Ch. Div. 788 (1880), was the correct one and was more likely to fulfill the expressed wishes of the testator than that adopted by the judges in the opposite line of cases. The authorities up to that date are all collected in the last-stated case.

The distinction in what may be called the substitutionary clause between naming the persons who originally were the direct object of the gift, describing them by their names or classes, and the word “ legatee,” was pointed out and acted upon by the same judge in Hunter v. Cheshire, L. R. 8 Ch. App. 751, and his decision was affirmed on appeal.

Upon the whole, I think the use of the word “ legatees ” prevents the operation in this case of the so-called substitutionary clause in favor of the descendants of those children who died before the making of the will.

Third. Next is the case of the legacy to the child of Sarah Roy, $1,000.”

Sarah Roy had but one child, which died a few months before the will was made, leaving children, and the question is whether or not the word “ child ” in that case can be construed as njeauing “ grandchildren.”

It is but a truism to say that the word “child” does not ordinarily include grandchildren, and since, for the reasons stated in the case of the “ children of Pettit B. Primrose,” the use of the word “ legatee ” in the substitutionary clause forbids the application of that clause in this case as well as in the other, the question remains whether there is anything in the circumstances which shows that the testator, by the use of the word “ child ” in that connection, referred to the descendants generally of Sarah Roy.

An examination of the will shows that the word “grandchildren” nowhere appears in it, although a large sum is given in trust for four certain beneficiaries severally for life, and at their death to their children or next of kin, and that in the same paragraph with the bequest under consideration' there are no less than thirteen bequests to the “ children ” of a personnamed. So that the circumstance relied on in some of the cases, that the testator did mention and provide for children in one part of his will and for grandchildren in the same connection or in another part, and hence could not have intended by the word “child” to include “grandchildren,” does not apply here.

It further appears that many of the beneficiaries were cousins and lived at a distance, and were much scattered, and it did not appear that the testator was acquainted with the situation of their families and the number or names of their children. The inference would be the contrary.

In most .of the cases in which judges have held that the word “child” cannot be construed to mean “grandchildren,” an exception has been noted as possible to arise out of the necessity of; the case. It is thus stated by Chancellor Green in Brokaw v. Peterson, 2 McCart. 194. (at p. 198): “The word children does not, ordinarily and properly speaking, comprehend grandchildren or issue generally. Their being included in that term is only permitted in two cases, namely, from necessity, which occurs when the will would remain inoperative unless the sense of the word children were extended beyond its natural import, and where the testator has clearly shown by other words that he did not intend to use the term children iu its proper, actual meaning, but in a more extensive sense.”

And the same thought is expressed by Chancellor Runyon in Feit’s Executors v. Vanatta, 6 C. E. Gr. 84 (at p. 85), where he says: “ The settled rule in the construction of wills is that it [the word “ children ”] will not be construed to include grandchildren unless there is something in the context to show that the testator intended that it should include grandchildren, or unless the provision will be inoperative without such construction.”

In using this language these jurists simply followed that of other judges.

In Crooke v. Brookeing, 2 Vern. 106 (at p. 108), before the lord commissioners of the great seal, while it was held that children did not ordinarily mean grandchildren, all admitted that if there had been no child the grandchildren might have taken by the devise to the children of the testator.

Again, Lord Alvanley, in Reeves v. Brymer, 4 Ves. 692, said: “ Children may mean grandchildren where there can be no other construction, but not otherwise.”

And Sir William Grant, in Radcliffe v. Buckley, 10 Ves. 195 (at p. 201), says: “The proposition that children may mean grandchildren where there can be no other construction, but not otherwise, is consistent with and founded upon previous cases. There are two cases in which that word has received another construction — first, the ease of necessity, where the will would remain inoperative unless the sense is extended; next, where testator has clearly shown by other words that he does not use the word children in the proper sense, but means it in the ipore extensive signification.”

The same judge, in the case of Earl of Orford v. Churchill, 3 Ves. & B. 59 (at p. 69), said: “ Where there is a total want of children, grandchildren have been let in under a liberal construction of the word children.”

This exception was practically applied in the case of Gale v. Bennet, Amb. 681 (1768), by Lord Camden.

Lord Romilly, in Fenn v. Death, 23 Beav. 73 (better reported in 2 Jur. (N. S.) 700), held the same thing. The bequest there was:

“In trust for the children of my late mother’s half-brother, Thomas Death, and which children shall, or to such one or more of them as shall be living at my decease, if more than one such child, to be equally divided between them as tenants in common.”

None of the children of Thomas Death were living at the date of the will, and it was held that the grandchildren were entitled.

And Sir John Stuart, vice-chancellor, in Berry v. Berry, 3 Giff. 134 7 Jur. (N. S.) 752, applied the doctrine of necessity, and held the word “ children to mean grandchildren.

And, finally, in the more recent case of In re Smith, Lord v. Hayward, 35 Ch. Div. (1887) 558, Mr. Justice Kay (afterward lord justice of appeal), applied the rule, following Berry v. Berry and Fenn v. Death. The case was that a testator gave his residuary estate to trustees to divide the proceeds into six shares, and to pay one of such shares to the children of his deceased sister, and he gave the other five-sixths, by similar terms, to the children of five deceased persons. At the date of the will there were no children of the sister living, but there were two grandchildren, who both survived the testator. — Held, that the two grandchildren took the one-sixth given to the children of the deceased sister. In giving judgment, the learned judge uses this language : “ If the testator, on the face of his will, gives a legacy to the children of a deceased person, mentioning that person as being dead, and at the date of the will there are no children of that person, but there are grandchildren, then the court, on the principle ut res magis valeat, holds that the gift takes effect in favor of the grandchildren.'”

The doctrine of these cases is stated to be settled law by Mr. Williams. 2 Wms. Ex. (R. & T. ed.) 359, and Mr. Randolph’s note on p. 362, where American cases are cited.

My conclusion, therefore, is that the grandchildren of Sarah Roy will take.

None of the eases in New Jersey are inconsistent with this view. The bequest in Feit’s Executors v. Vanatta took effect during the lifetime of the first taker, so that Chancellor Runyon felt that there was no necessity to apply the rule in that case. So the rule that I have adopted has no application to the circumstances in Brokaw v. Peterson, 2 McCart. 194. The question was not raised or discussed, and was not necessarily involved in the case of Van Gieson v. Howard, 3 Halst. Ch. 462.


text:
    The American Central Insurance Company et al. v. Gerhardt W. I. Landau.
    [Filed October 17th, 1898.]
    1. Thirty-two insurers under twelve separate policies filed a bill to enjoin separate suits against them, and alleged that some of their policies covered insured’s property in one of three buildings, and some in another, and some in all the buildings; that each policy contained a provision that the insurer should not be held liable for a greater proportion of any loss than the amount insured therein should bear to the whole insurance; that insurers had jointly tendered the aggregate amount of an award that had been made under insured’s agreement with them jointly to arbitrate according to the provisions of each policy. — Held sufficient on demurrer for want of equity.
    2. Such bill is not subject to demurrer as multifarious.
    On demurrer to bill.

      Mr. Edward M. Colie, for the complainants.

      Mr. Eugene Stevenson, for the demurrant.
   Pitney, V. C.

The bill is filed by nine corporations and twenty-three natural persons to enjoin nine suits already commenced against the corporation, and twenty-three others threatened against the individual natural persons, based on policies of insurance underwritten by the complainants to the defendant upon a silk plant consisting of machinery, &c., in the city of Paterson. The dwenty-three natural persons underwrote a single policy under the name of The Traders’ Fire Lloyds of New York City.

The ground of demurrer is want of general equity and multifariousness, and that the complainants have an adequate remedy by way of defence at law.

Briefly stated, the bill sets out that the nine corporations comrplainant, and the twenty-three natural persons (constituting The Traders’ Fire Lloyds of New York City), insured the property ,in question, and that there were also two other policies underwritten upon it, one by a corporation known as The Buffalo Insurance Company, and another by an association of underwriters known as The Manufacturers’ Lloyds, consisting of twenty-five natural persons; making twelve policies in all. That all the policies did not cover all the property; that it was contained in three different buildings, and some of the policies covered the property in one building, and some that in another, and some covered property in all the buildings. But, as I read the schedules, it is not quite certain that any one covered all the property.

That each policy contained the following provision :

“That the underwriters or insurers shall not be liable under the policy for a greater proportion of any loss on the described property, or for loss by or expense of removal from premises endangered by fire, than the amount hereby Insured shall bear to the whole insurance, whether valid or not, or by solvent or insolvent insurers, covering such property.”

And also the following clause:

“ That in the event of disagreement as to the amount of loss, the same shall he ascertained by two competent and disinterested appraisers, the insured and the insurer each selecting one, and the two so chosen shall first select a competent and disinterested umpire; that the appraisers together shall then estimate .and appraise the loss, stating separately, sound value and damage, and, failing to agree, shall submit their differences to the umpire, and the award in writing of any two shall determine the amount of such loss.”

The bill further sets out an injury to the property by fire in May, 1895; that the complainants and the other underwriters, being unable to agree with the defendant as to the extent of the loss, entered into a joint or consolidated written agreement for •appraisal, in accordance with the terms of the arbitration clause just cited.' This document is set out in full as a schedule to the bill, of which, by proper averment, it is made a part. It consists, first, of several sheets, each giving a separate description of the property found in one or more of the original policies. Then comes the agreement itself, which also contains a general description of the property and its location. The terms of the agreement will be mentioned presently. Annexed to the agreement is the oath of the appraisers and umpire, and then a detailed list of each piece or kind of property, with the number of each. This consists of eight sheets of lists of property contained in seven rooms. Opposite each article is put down a sum of money as a sound price, and then opposite this again is the amount of damage, making two columns, one of sound price and one of damage. The total sound value is $14,205.01, and the total damage is $5,936.90.

The document itself provides that the defendant, of the first part, and the Palatine Insurance Company, one of the complainants, and the several other insurance companies interested, of the second part, do agree

“that Frank Atherton and Edward S. Winchester, they first selecting a competent and disinterested umpire, to whom they shall submit their differences in case of failure to agree, shall estimate and appraise the loss and damage by fire of May 7th, 1895, to the property of G. W. I. Landau, as mentioned herein or specified in schedule annexed, stating separately sound value and damage, which estimate and appraisal by them or two of them, in writing hereon, shall determine the amount of such loss and damage, it being understood that this agreement is of binding effect only as regards the sound value and damage of the said property, and does not in any respect waive any of the conditions of the insurance policy.”

Then follow a schedule and general description of the property, and then follows this:

It is expressly understood and agreed that the said appraisers are to consider the age, condition and location of said property previous to said fire, and shall make a proper deduction for depreciation and difference between the value of like property replaced new and the property mentioned.
“Dated New York, this 19th day of September, 1895.”

It is signed by the complainants severally, either in person or by agent, and also by the Buffalo Insurance Company, but not by the Manufacturers’ Lloyds.

The award. is signed by two — by Edward S. Winchester as appraiser, and Charles H. Manning as umpire, who joined in taking the oath — and estimates the damage at $5,936.90.

The bill proceeds to state that this award was accepted by the complainants and that they immediately offered to pay the sum awarded to Mr. Landau, but that he refused to accept it and waived a formal tender of the amount, and then commenced the suits above mentioned.

Upon the case made by the bill the award and payment or tender under it seem to be a perfect bar to the defendant’s actions at law. The agreement is one substantially in accordance with the terms of the provision for that purpose found in the several policies. It was entered into voluntarily by the defendant. The appraisers seem to have acted strictly in accordance with the terms of the submission. They chose an umpire and all were sworn. Then the two original arbitrators were unable to agree and they called the umpire in, and they appear to have placed a sound value upon each item and fixed the loss and injury by the fire on each item.

The complainants’ case is that the award is valid and binding on the defendant, and it must be treated' as such for present purposes. In short, it must be treated as a final determination suffered by the several parties of the extent of the entire loss by the defendant, and a payment or tender of the amount by the complainants to the defendant must be held to be a bar to an action at law against them directly and severally on their several policies.

It is to be observed that no question can be raised here as to the validity of the clause providing for this mode of ascertainment of the question of the quantum of loss. Such question can only be raised when one or the other of the parties has refused to join in a proceeding under that clause. But if the clause were subjected to that test its validity seems well established by authority. Wolff v. Insurance Company, 21 Vr. 453. But here the parties have voluntarily submitted the question to arbitration, and the.award on its face is quite valid and binding without the aid of the contractual clause found in the policy. The only value of that clause is to show that the proceeding was an ordinary and proper one, and to explain the verbiage of the a.ward.

The first question is whether it constitutes such a defence as can be readily availed of by the several complainants as a defence -in a 'court of law to the several actions brought against them. It seems to me that eacli complainant, in order to avail himself of such defence, must either pay the whole sum awarded into court or, at his peril, take the risk of ascertaining in advance the precise sum which is his share of the whole to pay under the terms of the several policies, and pay that sum into court. If he fails to pay into court the precise amount which a jury may find- to be his share, he will be subjected to costs upon a recovery of that precise amount. And this state of facts applies to each -of the thirty-three suits already brought or threatened to be brought.

It was suggested by the counsel for the demurrant that one -payment into court would be sufficient; that the person first sued should pay the whole amount of the award into court, and then that such payment will inure to the benefit of all the others, and that the court of law will not require more than one payment. . The bill states that the suits were all brought in one court, to wit, the circuit court of the county of Passaic. Hence it is perhaps to be presumed that the circuit court might make such an order. But the question is whether it is obliged to do it or -not, ex debito justitice, and I am not sure that it is.

Again, in this connection, another question arises. The tender of the whole loss was made by the complainants combined. Can, then, each of the complainants avail itself or himself of such a tender to support a plea at law of tender of a smaller amount, being the share properly due from him ?

No doubt these complainants (although it is not so alleged in the bill) have arranged among themselves as to how this payment shall be divided among them under the very peculiar state-of facts here existing. And they may have done this, in order-to avoid expense, arbitrarily, and not on principle. Or it maybe that they are not agreed upon such division, but are content to make up a pool to pay the amount, and then quarrel among themselves hereafter as to the proper adjustment of contribution. It is well known that there is a class of gentlemen who are known as insurance adjusters, who make it their business to adjust just such matters. But they may agree, or they may disagree, and the result would be a litigation in which the defendant has no interest whatever, and should be content if he gets the precise amount which is due him.

Now, it seems to me that the only safe way for the several complainants to avail themselves of their several defences to the several actions will be by settling in advance among themselves the precise amount that shall be paid by each, and by each paying that amount into court in the particular suit against each. Having done that, however, they will be met with the right of the plaintiff in the action at law to contend that such partition or adjustment so made between the companies is not the true-one, and-submit it over again in each particular case to the jury in that case. And here opens before us the real difficulty on this part of the case. If the plaintiff is to have thirty-three actions against the thirty-three parties, or, consolidating the Traders’ Lloyds, if he is to have ten different actions against ten different parties, before ten different juries, the finding of the jury in one case will not, in the absence of stipulation, bind the parties or the jury in another case; and the sum total of the ten verdicts, though made upon the basis of the validity of the-award and the total amount of damage, may vary from the actual amount.

In answer to this view it is urged that the proportion which’ each of the underwriters should bear is fixed by the terms of the policy, so that it is Only necessary tó do a simple sunt in arithmetic to ascertain the amount chargeable against each. This would be so if each policy covered precisely the same property, but such is not the case. Some of the policies do'not cover all the property, and those that do not cover all the property do not, in themselves, cover the same property; but there is what may be called a double or triple overlapping, and to ascertain the share of each one will require the ascertainment of the amount of other insurance upon the particular property covered by the particular policy, and then the proportions will, after all, have to be adjusted by taking into consideration the amount and value of property not covered by the particular policy included in other policies covering that property. This view presents a very complicated state of things, which, as I said, forms a problem for an experienced insurance adjuster and is one very difficult for a jury to deal with.

I am satisfied, from an examination of the schedules of property covered by each policy, that it will be very difficult for the-complainants to maintain their several defences at law, and that they ought not to be subjected to the expense and risk of that attempt.

The further question also arises at once, cui bono? — of what use are these several suits at law brought to recover a fixed sum of money which the parties owing are willing to pay at once t Is it equitable for the defendant to bring so many suits ?

The case would be different if the complainants had not waived, as between themselves and the defendant, the settlement of the relative liabilities between themselves, and agreed in some way in making up the money to pay the defendant at once.

Of course it is supposable that the object of the defendant i» bringing these actions at law is to ask the court to hold that the award is not valid or binding upon him, and is, for some reason or other, void; but that mere supposition- cannot betaken into account in this connection on demurrer, where, as I have said, we must proceed upon the basis that the award is-binding and fixed absolutely, as between the parties, the,damages to the property covered by the policies, and, as a result, fixes absolutely the measure of damages against the complainants, in favor of the defendant.

It is impossible, at this stage of the cause, to anticipate that the defendant may, by his answer and proofs, show some good reason why he should be permitted to go into a court of law and, before a jury, to contest this award. When he can show a good reason for such course this court will, as a matter of course, permit him to pursue it, under such restrictions as will protect the complainants from unnecessary cost and litigation. In the present state of the cause, however, it seems highly inequitable for the defendant to resort to his strict legal right to bring thirty-three suits at law to collect a sum of money which is not in dispute and which has been tendered to him, and to compel thirty-three defendants to incur the risk and expense of making distinct defences, which, even if successful on the general question, may still be so far unsuccessful in the matter of tender and payment into court as to subject them to liability to pay costs. Besides, in these .days, the mere matter of taxable costs does not indemnify for the labor and expense of conducting a lawsuit. For all these reasons it seems to me that the course taken by the defendant is inequitable and oppressive.

It is said, in answer to this, that it is no more so than what occurs every day in actions on policies of insurance. But it is a well-known fact that it is quite usual, where there are several policies of insurance upon a piece of property which is destroyed or injured by fire, and a dispute arises either upon the general question of liability or upon the extent of the loss, for the parties to agree among themselves that one action shall be brought to trial, and the liability and its extent on the other policies shall stand or fall by that one action. In point of experience, so far as I know, the pressing of so many actions at once is not common. Such practical consolidation was, I believe, the common practice in England under the old Lloyd policies. It does not appear in this case whether any attempt has been made to save litigation in this respect by making any offer of an arrangement of that sort, and the maxim must apply that What does not appear, does not exist.” It may be that the defendant by his answer will show, as I have said, that he only proposes to bring one action to trial in order to test the validity of the award, based upon some ground which does not appear in the complainant’s bill.

There is still another reason that strikes me as having some force, and which intensifies the inequitable position of the defendant, or rather eliminates the objection for multifariousness which was urged by him, and that is, that there has been in this case a quasi voluntary consolidation of the causes of action by the entering into the joint arbitration agreement with all the complainants. This was undoubtedly done to save the trouble and expense of ten or eleven different arbitrations, and also the extreme difficulty and expense of ascertaining the precise amount for which each one was liable.

Upon the whole case I think the bill discloses equity, and that the demurrer must be overruled.

This result seems to be sustained by authority. The right of several individuals interested in a single question to combine in an action in equity to establish their right, in order to save multiplicity of actions, is recognized by the text-writers. In Kerr on Injunctions 135 the learned author uses this language:

“In cases where there is one general common right to be established against several or a number of distinct persons, whether one person claims or defends a right against many, or many claim or defend a right against one, a court of equity will interpose, in order to prevent multiplicity of suits, and instead of suffering parties to he harassed by a number of separate suits, each of which only decides the particular right in question between the plaintiff and the defendant to it, it will at once determine the right by a decree, having previously, if necessary, directed an issue for its information. It is no objection to the bill that the plaintiffs may each claim a right against one defendant, or several defendants may each have a right to make a separate defence against the claim of one plaintiff, provided there be only one general question to be settled which pervades the whole. It is enough that there is one general question as between the one plaintiff and the several defendants, or the one defendant and the several plaintiffs.”

And in Adams on Equity 199, the doctrine is thus stated :

"Bills of peace of. the first class are those where the same fight is claimed by or against a numerous body; as, for example, where a parson claims tithes-against his parishioners or thet parishioners allege a modus against the parson; where the lord of a manor claims a right against' the tenants or the tenants claim a common right against the lord; or where- the owrie'r of an ancient mill claims service to his mill from all the tenants of a particular district. In all these cases .the only form of procedure at common law would be that of a separate, action by or against , each parishioner .or tenant, which would only be binding as between the immediate parties and would leave the general right still open to litigation. In order to remedy this evil a suit may be sustained by the court of chancery, in which all parties may be joined either individually or as represented -by an adequate number. If any questio'n of right be really in dispute it will be referred to the decision of a court of law, and when the general right has been fairly ascertained an injunction will be granted against further litigation. If particular individuals have special grounds of claim those claims will be left untouched.”

And Professor Pomeroy, in his treatise on Equity § 244 seq., in dealing with the .jurisdiction of the court to prevent multiplicity of suits, enumerates four classes of cases, the third of which he states thus :

“Where a number of persons have separate and individual claims and rights of action against the same party, A, but all arise from some common cause, are governed by the same legal rule and involve similar facts, and' the whole matter might be settled in a single suit brought by all these persons uniting as co-plaintiffs, or one of the persons suing on behalf of the others or even by one person suing for himself alone. The case of several owners of distinct parcels of land, upon which the same illegal assessment or tax has been laid, is an example of this class.”

And he shows by an elaborate examination of authorities (§§ 264-269) that the jurisdiction of the court in such case has frequently been invoked and exercised and is well established.

Among the numerous decided cases, I refer to the following: Roe et al. v. Bishop of Exeter, Bunb. 57, a bill to establish a modus. Powell et al. v. Earl of Powis, 1 Younge & J. 159, a bill by numerous freehold tenants of a lordship, having rights of common for their cattle, and of turbary and estovers, to establish their right, and to enjoin numerous actions of trespass brought against them individually. Kensington et al. v. White et al., 3 Price 164, a bill by numerous individual underwriters, upon the same risk’s against the insured, for special relief. Mills v. Campbell, 2 Younge & Coll. Exch. 389, a similar bill. Irving et al. v. Viana, McClel. & Y. 563, a similar bill. Falls of Neuse Manufacturing Co. v. Georgia Home Insurance Co. et al., 26 Fed. Rep. 1, before two federal judges. In that case several actions at law had been brought by the plaintiff against several insurance companies in the federal court, and the insurance companies moved to consolidate the suits and transfer them to the equity docket, and to allow the defendants to set up in equity a defence common to all, and it was so ordered. Osborne et al. v. Wisconsin Central Railroad Co., 43 Fed. Rep. 824, before Mr. Justice Harlan (Sup. Ct. U. S.) and Circuit Judge Bunn, a suit by divers landowners, owning severally different tracts of land, all depending upon the same title,, against the railroad company, which had appropriated by one proceeding the lands, of each. Lovett v. Prentice, 44 Fed. Rep. 459, substantially the same case as the last. In the same direction are Fuller v. Detroit Fire and Marine Insurance Co., 36 Fed. Rep. 469; Pennefeather v. Baltimore Steam Packet Co., 58 Fed. Rep. 481, a case of marine insurance;. Cadigan v. Brown, 120 Mass. 493.

The disposition of this court'to uphold this kind of jurisdiction is manifested by rule 132, promulgated by Chancellor. Zabriskie, who was incited thereto by feeling constrained to refuse a consolidation of several suits in equity to abate the same mill-dam. Carlisle v. Cooper, 3 C. E. Gr. 241 (not reported on that point).

Another ground of jurisdiction claimed by the complainants is that they are entitled to a discovery as to the amount paid in settlement of claims for damages to this property by the Buffalo Insurance Company and the Traders’ Lloyds, there being an allegation that a settlement had been made with those persons, and that they had withdrawn from the syndicate. I do not find it necessary to express any opinion as to whether that part of the bill strengthens the jurisdiction of this court or not. I am inclined to think that it does not.

It is urged against it by the defendant that it is no affair of the complainants whether or not the. underwriters in those two policies have paid anything or not, since the liability of the complainants is confined to a certain amount against each, and if the defendant has received from those insurers more than what their share may appear to be on a final settlement between the defendant and the complainants, the complainants will not be entitled to any credit therefor. I am inclined to think that the defendant is right in this contention, but will express no opinion upon it. But if that position be true, it still, in my view, is not necessarily unimportant to the comjfiainants to know that such payment has been actually made to this defendant., for it must he observsd that the award made by the action of all the parties hereto ascertained the total amount of damages suffered by the defendant, and that the complainants have tendered that whole sum to the defendant, and of course must, in practice, stand by that tender, and on a proper application must pay that money into court. But such payment into court will be subject to a proper reduction for the share thereof which should be paid by the two insurance companies just named if they have paid it. And it follows that the fact and amount of such payment is important, in order that it may be known whether it is or is not sufficient to cover their share of the obligation.-

I will advise that the demurrer be overruled, with costs.


text:
    Louis C. Iauch v. Pauline de Socarras et al.
    [Filed October 16th, 1898.]
    After a judgment creditor has filed a bill for the benefit of himself alone, to set aside a fraudulent conveyance .of land made by the judgment debtor, who is still alive, and to establish the lien of the judgment, other judgment creditors are not entitled to join as parties complainant against the protest of defendants, though complainant consents.

      In the matter of the petition of Mulligan & Brazo to be admitted as parties complainant.
    On motion to vacate an order admitting said petitioners as parties complainant in the suit.

      Mr. Thomas P. McKenna and Mr. Frank P. McDermott, for the motion.

      Mr. Thomas P. Fay, contra.

   Pitney, V. C.

The original bill in this cause was filed on the 8th of February, 1896. It is based upon a judgment recovered by the complainant, Iauch, against Mrs. Pauline de Socarras on the 6th of February (two days before the filing of the bill), in the supreme court of this state, and an execution issued forthwith thereon, levied by the sheriff of Monmouth county upon certain lands described in the bill. It sets forth that Mrs. de Socarras was seized of the premises in her own right prior to the recovery of the judgmant, and after incurring the indebtedness which was its foundation, and that on the 8th of November, 1895, she conveyed the lands to a third person, and on the same day that third person reconveyed them to her in trust for the benefit of her son, Rudolfo. The charge of the bill is that this familjr settlement was void as against the complainant, and prays that! the deeds of settlement from the third party to hers.elf, as trustee for her son, .may be declared to be void as against the complainant, and that the title of the premises may be decreed to be reinvested in her, so that they may be sold under the execution for the satisfaction of the judgment and a good and clear title given therefor to the purchaser thereof. There is no prayer that they may be sold for the benefit of creditors generally.

This bill, as originally framed, did not make .the son, Rudolfo de Socarras, Jr., a party defendant, and was met with a demurrer for want of parties, and that demurrer was sustained. The bill was then amended by adding Rudolfo as a party. Another general demurrer was then interposed, which was overruled. An appeal was taken from the order overruling the demurrer, which was dismissed and the cause remitted.

In September, 1897, the defendants filed a-joint and several answer and cross-bill. By the first they alleged a consideration for the settlement, and by the last set up what was claimed to be an equitable defence to the complainant’s judgment, and prayed that it be declared not binding in equity upon Mrs. de Socarras. A replication was filed to this cross-bill, and the cause was at issue and came on for hearing and trial before me as vice-chancellor.

On the second day of the. hearing, counsel appeared for the petitioners . above named — Milligan & Brazo — and asked permission to cross-examine the witnesses. It then appeared that on the.26th of June, 1897, more than a year after the filing of the bill, the petitioners had made an ex parte application to the court, by a petition which set forth that they had recovered judgment on the 30th of June, 1896, against Mrs. de Socarras in the circuit court of the county of Monmouth, but not stating the date of the accrual of the debt upon which it was founded, and that the bill in this cause was a creditor’s bill filed by lauch, “ for the benefit of himself and all other creditors of said Pauline de Socarras who shall in due time come in and,contribute to the expenses of the suit.” On the strength of that allegation in the petition, and without any notice to either of the parties, an advisory master advised the order now. brought in question, which directed that the said petitioners be and they are hereby admitted as a party complainant to this suit.” That order was made on the 6th of July, 1897.

Neither of the parties to the original suit had any notice of it, and the appearance, at the hearing, of counsel for petitioners was a surprise to them. After some discussion, the counsel for complainant agreed in open court that the petitioners might be admitted as parties complainant, provided they did not thereby gain any priority over the complainant’s judgment, but should come in, if at all, subject to his judgment. These terms were consented to by the counsel of the petitioners, but not by the counsel of the defendants, and the latter gave, notice of amotion to vacate the order of July 6th, 1897, admitting the petitioners as complainants in the cause, upon the grounds, first, that said order was improperly, unadvisedly and inadvertently made, and second, that the order is illegal and contrary to the practice of the court in such cases.

The facts as above set forth raise a nice and important question of practice, which was elaborately argued, and has received careful consideration.

The complainant’s bill contained no statement or admission that it was filed for the benefit not only of himself, but of all those creditors who might choose to come in and contribute to the expense of the suit. The allegation of the petition in that regard was untrue, and misled the advisory master into making an order, without notice to any of the parties, which cannot stand for a moment, unless the character of the suit is such as that the petitioners had an absolute right to be admitted as parties complainant, without regard' to the allegations of the bill.

The consent given at the hearing by the counsel for the complainant removes a part of the difficulty. But the question still remains, whether the order can stand against .the protest of the defendants.

I had occasion to consider the question in some of its aspects in the recent case of Mallory v. Kirkpatrick, 9 Dick. Ch. Rep. 50 (at p. 56), and have since taken the trouble to look at most of the authorities, with the following result:

That class of creditors’ bills in which the suit can properly be said to be necessarily brought for the benefit of other creditors besides the complainant, comprise those which seek to reach, establish and administer assets in the hands of a trustee.who holds them either voluntarily or, by force of circumstances, involuntarily, for the benefit of all the creditors. They may be classed as follows:

First. Suits to administer the estate of a decedent held by an executor or administrator, and apply the same to the payment of his debts.

Second. Where' a living creditor voluntarily assigns property to a trustee for the benefit of his creditors, and a creditor seeks to have that trust administered.

Third. Where there is an assignment by operation of law for the equal benefit of the creditors, such as occurred in all instances of attachmeuts against foreign or absconding debtors under our statute until the recent change in that respect.

Fourth. Cases where a creditor of a corporation seeks to reach unpaid subscriptions of stock, as in Wetherbee v. Baker, 8 Stew. Eq. 501; and see Mallory v. Kirkpatrick, 9 Dick. Ch. Rep. 50.

Fifth. A creditors’ bill, under our Chancery act (§§ 88, 94), in which equitable assets are reached by a receiver, and are all subject to the debts of the defendant, but are not distributed pari passu, and the complainant is first paid. As to this class of cases, see Whitney v. Robbins, 2 C. E. Gr. 360.

In all these cases the property reached becomes assets in the hands of the court, to be distributed among the creditors either equally or with certain priorities.

A sixth class is that now before the court, where a single judgment creditor of a living debtor obtains a lien upon real estate, or, by execution, on leviable chattels, and asks the aid of the court either to perfect an equitable title already in the defendant in execution or to set aside a fraudulent conveyance made by him to a third party. Here the prayer and remedy are simply to establish the lien of his judgment, or, in case of leviable chattels, of his execution.

This last class of cases, and the rights and remedies of the parties, are in marked contrast with those under the other classes above enumerated. In this last class the complainant, if he has the first judgment, has, of course, the first lien, and the result of my research is that, in this country at least, the surplus, if any, of the proceeds of the sale of real estate does not necessarily become assets in the hands of the court, to be marshaled and distributed among the other creditors without regard to the date of the accrual of their debts. And here, it seems to me, is found the true test as to whether a suit is or is not brought for the benefit of other creditors besides the complainant. Is its object, scope and natural result to recover and establish a fund which shall or may be administered by the court for the benefit of all creditors of a certain debtor ?

In the last class of cases above referred to it is to be observed, in the first place, that no creditor can obtain any part of the proceeds of the sale of real estate of a living defendant unless he has a judgment, or of leviable chattels unless he has an execution. In the next place, it is to be observed that where a conveyance by the debtor is attacked as fraudulent and void as-against a judgment creditor, an adjudication that the conveyance' is void as to the complainant’s judgment creditor is not necessarily an adjudication that it is void as to all other judgment creditors, since it may be void as to one and not as to another.

By the well-settled rule in this state a voluntary conveyance is held to be conclusively fraudulent as to existing creditors without regard to any actual intent of the grantor to hinder,, delay or defraud such creditors, but as to subsequent creditors it can be attacked only on the ground of such actual intent. Hence, a conveyance may be held void as to one creditor and valid as to others. And if there are several successive judgments founded on debts accruing at different times, some of which accrued prior to the voluntary settlement and others after the voluntary settlement, and the proceeds of the sale of real estate of a living debtor are brought into court, so much as is necessary for that purpose may be applied to the payment of' those judgments founded upon debts which accrued prior to the settlement; and the remainder be held to be free and clear of any lien on the part of those judgments which are founded upon-debts which accrued after the date of the voluntary conveyance, although the latter may be prior in date of recovery to the others. In the present instance, the case, as so far developed, indicates-that the settlement in question may be properly held valid as to-one of these creditors and invalid as to the other.

An examination of the cases seems to' me to show that some-confusion has arisen in the minds of the profession from the circumstance that a rule different from what I have just stated' prevailed for many years, and possibly still prevails, in England. There, by a long line of decisions, it was held, for many years at least, that where a settlement of real estate was made which was fraudulent, under the statute of 13 Elizabeth, as to a then existing creditor, and was set aside at the suit of that or any other creditor as fraudulent on- that account, the whole proceeds of the sale of such property became at once assets to be divided among all the creditors, both prior and subsequent, and whether judgment creditors or creditors at large, and whether there was any actual fraud or not. The fund once seized by the court and turned into money was treated precisely like that of the estate of a decedent or of an insolvent, and distributed among the creditors. It so happened that in many if not most of the instances where family settlements were set aside as void against creditors, such action and decree were not had until after the death of the settlor and debtor, because the real estate during his lifetime was not ordinarily liable to sale for debt, and only became subject to sale for that purpose after his death, and in such case the suit at once assumed the aspect of an ordinary suit to administer the estate of a decedent, such as I have above referred to — class No. 1. But the same remedy was, in a few- instances, applied in cases where the debtor was still living. Spirett v. Willows, 3 De G., J. & S. 293, is an instance of that kind. The doctrine of the earlier cases in England was somewhat modified by the later cases, and has never been adopted in this state. The English cases will be found reviewed by Mr. May, in his book on Fraudulent Conveyances pp. 45-50, and again at pp. 515-522; and by Professor Bigelow, in his treatise on Frauds pp. 80 et seq.; and see Wait Fraud. Conv. §§ 104 et seq. They are too numerous to be cited at length, but perhaps the length to which the judges there went in the direction indicated is approximately shown by what was said by Vice-Chancellor Shadwell, in Scarf v. Soulby, as reported in 16 Sim. 344: “It is stated in the bill that the settlor was embarrassed and insolvent when he made the settlement, but that is superfluous. It appears, from what Lord Hardwicke says in Lord Townshend v. Windham [2 Ves. Sr. 1] that it is quite enough to prove that he was indebted at the time. Lord Hardwicke says: I know no case on the 13th Elizabeth, where a man, indebted at the time, makes a mere voluntary conveyance to a child without consideration and dies indebted, but that it shall be considered as part of his estate for the benefit of his creditors.’ ”

But that statement of the rule was not concurred in by Lord Cottenham on appeal, as reported in 1 Macn. & G. 364. (at p. 374), where he declares that a single debt, without regard to insolvency or embarrassment, is not sufficient, and that the decree of the vice-chancellor could not be supported, there being no proof of any indebtedness at the time of the settlement, or that sufficient property was not left after the settlement to pay his debts; but he referred it to a master to inquire on that subject.

In all those cases in which the fund sought to be reached becomes assets in the hands of the court, to be divided among the creditors at large, it is proper for the complainant to declare that he brings the suit in behalf of himself as well as of all the other creditors who may come in; but a careful reading of the •cases shows that it is not at all necessary for him so to do, and that it makes no difference whether he does so declare or not; and unless he is settled with before the case goes to a decree, other creditors may come in, not, indeed, as complainants or co-complainants, but as claimants of the fund when once it is in the hands of the court. And this practice has been applied in England, as I have observed, to cases of suits brought in the lifetime of the debtor, to set aside conveyances of real estate made by him. But I think it has no application in this state, and that a suit brought by one judgment creditor to set aside a conveyance of real estate or to perfect an equitable title in real estate in his judgment debtor, is not a suit brought for the benefit of all other creditors besides himself.

This very question seems to have been stirred, and I think substantially decided, in the case of Voorhees v. Reford, 1 McCart. 155. There creditor No. 1 — Cramer—obtained judgment and filed a bill against Reford to set aside a conveyance made by him to his wife, precisely as was done here. After the filing of that bill, creditor No. 2 — Corwin—recovered a judgment against Reford, and after, him, creditor No. 3 — Voorhees—recovered a judgment. Creditor No. 2 — Corwin—filed a bill precisely.like that of Cramer, but did not make Voorhees, who had obtained a judgment before Corwin’s bill was filed, a party defendant. In that state of things, Voorhees filed a supplemental bill in the nature of a cross-bill, to be permitted to participate with the complainants and enforce the lien of his judgment against the property in controversy in those suits. Demurrer to this was filed and the demurrer was overruled. In the argument of counsel for complainant, as reported, the position was distinctly taken that the third creditor could not get the benefit of the previous suits by a mere petition, but must file a bill in which he recognized the existence of the other suits. Chancellor Green, in delivering judgment, declared that the first bill was not a creditor’s bill which inured to the benefit of all the creditors of Reford equally, nor was it a bill having the avowed purpose of having the conveyance from Reford and wife declared fraudulent as against all creditors. He did, however, say that such a bill might inure for the benefit not only of all subsequent encumbrancers but of all other creditors. But he says further that if the conveyance was set aside and the property sold it would inure to the benefit of Cramer alone and the residue of the property would remain under the control of the alienee. And then he declares that, as Voorhees’ judgment was recovered after the bill of Cramer was filed, his claim must be brought before the court either by an original bill or by a supplemental bill, sustaining the position in the brief of counsel that it could not be done by petition. That suit went to hearing and relief was granted to all the judgment creditors, as reported in 2 C. E. Gr. 367.

The objection taken by defendants at the hearing to the admission of the petitioners as complainants in this case was that defendants are entitled to a pleading from the petitioners and an opportunity to answer it and contest their claim by itself in the ordinary way, and that without that pleading the defendants, in case they succeed in sustaining their defence as against the complainant and obtain a decree, will not be able to set up that decree as an estoppel against the petitioners, who will not be bound thereby; and further, that the issues are not the same, and that the original suit has progressed so far as that the intervention of these petitioners is too late and will disturb the progress of the suit. In effect, the jurisdiction of the court to ■compel the defendants to defend petitioners’ claim except by bill and subpoena is denied.

The question presented is quite different from that which would arise if the complainant and the petitioners had originally joined in one bill on their several judgments. In that case the objection of multifariousness would have been met — whether successfully or not it is not necessary for me now to decide — by what was said by Chancellor Kent in the famous case of Brinkerhoff v. Brown, 6 Johns. Ch. 139 (at pp. 151, 156). At p. 151 he says: “ It is an ordinary case in this court for creditors to unite, or for one or more, on behalf of themselves and the rest, to sue the representative of their debtor in possession of the assets and to seek an account of the estate.” And he continues: “There is no sound reason for requiring the judgment creditors to separate in their suits when they have one common object in view which in fact governs the whole case. There is no particular matter in litigation peculiar to each plaintiff, and if they were obliged to sue separately, it may be pertinently asked, Gui bono?” Then comes (at p. 157) his famous and familiar statement of the rule as to multifariousness. But the doctrine of that case must be confined, when it is used for settling principles, to the circumstances. There was in that case, as in Wetherbee v. Baker, 8 Stew. Eq. 501, a corporation or a quasi corporation, in which the stockholders were charged in the bill with being liable for unpaid subscriptions of stock, and that the affairs were being wound up by trustees who had the estate of the quasi corporation in their hands, and that those trustees were stockholders, “ and that they ought, under the circumstances, to be regarded by the creditors as the bona fide holders of stock not subscribed for,” &c., and the bill prayed for a disoovery of the names of the stockholders, the amount of their subscriptions, how much had been paid thereon and the balance due from each, the names of the stockholders at the time the company was dissolved and the number of shares owned by them, and that the defendants be decreed to pay for the stock-subscribed, and to sell the property of the company and apply the proceeds to pay the plaintiffs. So that, in point of fact, an examination of the bill in that 'case shows that it was a bill to-wind up a corporation and to divide the assets among its creditors, and the prayer for relief against certain fraudulent conveyances, &c., was a mere incident to the general purpose of the-bill.

Such, also, was the case in Strike’s Case, much relied upon by the counsel for petitioners, reported in 1 Bland 57, and see particularly pp. 59, 71, 84, 93; also reported, on appeal, in 2 Harr. & G. 191, sub nomine Strike v. McDonald & Son, where the doctrine as contended for by the petitioners’ counsel is stated' at p. 333. The report in Bland, however, is the better one, and a close examination of it shows that there the debtor, Rogers,made certain conveyances, alleged to be fraudulent, to Strike, and afterwards applied to the court for the benefit of the insolvent laws, and procured Strike, the fraudulent grantee, to be-named as his trustee, so that Strike became an assignee in insolvency ; and the object of the bill was not only to set aside the prior fraudulent conveyances to Strike, but to compel him to' execute the trust resulting from his appointment as trustee under the insolvent proceedings. This aspect of the case brings it within the classes of pure creditors’ bills to which I have above referred and destroys its value as a precedent in the present instance. The learned chancellor cites, in his foot-notes, several unreported cases decided in the Maryland courts, which, upon examination, prove to be of the same character. Hammond v. Hammond, 2 Bland 306, decided by the same judge, was a suit against the heirs, devisees and personal representatives of a decedent to administer the estate, and, in his opinion, he gives a valuable treatise upon the subject of creditors’ bills to settle estates.

The cases in this state relied upon by the petitioners are as follows:

Hazen v. Durling, 1 Gr. Ch. 133 (at pp. 137, 138). That was a suit by one joint surety on an administrator’s bond against the personal representatives of the co-surety, and the original surviving administrator, and the administrator of the administrator. It is clearly a ease of proceeding against an estate in the hands of personal representatives, and is an example of an original creditor’s bill to administer an estate.

Next is Bullock v. Zilley, 1 Halst. Ch. 77, which was the simple case of a legatee suing for his share of the residue of an estate in the hands of the executor.

Next is the case of Lore v. Getsinger, 3 Halst. Ch. 191. There a suit by three small judgment creditors uniting in one bill, filed under the sections of the Chancery act, was sustained. But the case was reversed on appeal (3 Halst. 639), the opinion not being reported.

The next case in order of time is Hunt v. Field, 1 Stock. 36. That was a case of foreign attachment, where one creditor issued an attachment, and levied and attached certain goods and chattels which were claimed by a third party, and then the creditor, on the strength of his attachment, filed a bill to set aside the conveyance as fraudulent. Chancellor Williamson (at p. 42) says: “ The bill ought to have been framed for the benefit of the complainant and such other creditors of the defendant as shall come in and seek relief, and contribute to the expense of the suit.” Of course, under the statute regulating attachments as it then stood, all the creditors under the attachment stood on an equal footing, and the criticism of the chancellor was just. An attachment operates as an involuntary assignment in bankruptcy or insolvency, and places the whole estate of the debtor in the custody of the court.

The next case is Williams v. Michenor, 3 Stock. 520, which was a precisely similar case. It was there held that several persons issuing successive attachments might unite in one suit for the purpose of setting aside fraudulent conveyances.

Next is cited Romaine v. Hendrickson, 9 C. E. Gr. 231. That was a bill by one of several heirs and- devisees of the testator of a will which gave his executors power of sale, to set aside conveyances made by them under that power, and in its character is similar to that of one of several legatees standing in equal position who sues in behalf of himself and the other legatees for a discovery from the executor of the estate, and for a settlement thereof.

Next, petitioners rely upon what was said by Chancellor Runyon in Kuhl v. Martin, 11 C. E. Gr. 60 (at p. 65, bottom). The circumstances there were extremely complicated, and the chancellor, in order to prevent a sacrifice, ordered all the property to be sold by a receiver, free of encumbrances, and the proceeds brought into court, thus establishing a fund in the custody of the court to be distributed among the several parties equitably entitled, as their several rights should subsequently appear. What was said as to subsequent judgment creditors coming in must be construed in view of the peculiar situation of affairs to be dealt with by the chancellor.

Next we have Thompson v. Fisler, 6 Stew. Eq. 480. The bill, as filed, was declared to be for the benefit of the complainant and all other creditors who may come in, &c., but whether relief was prayed as to real estate or only as to equitable assets, does not appear except so far as it may be inferred that land was involved from the circumstance that other judgment creditors were made defendants. The complainant failing to prosecute the suit, one of the judgment creditors procured an order changing his position in the cause to that of a complainant, and then moved for leave to prosecute the suit in that character, and his motion was granted. It is to be inferred from some of the language used by the chancellor that he overlooked for the moment the distinction which I have pointed out between a creditor’s bill proper and a suit to subject lands to the lien of the judgment.

Next is the case of Wetherbee v. Baker, 8 Stew. Eq. 501, which was a bill by creditors of the corporation to compel the stockholders to pay their debts out of unpaid subscriptions for stock, and it was held that all the creditors must come in equally and that all their debts be ascertained, and the total indebtedness and deficiency of other assets be ascertained, as a necessary basis for ascertaining the amount of the unpaid subscriptions to be collected for the purpose of liquidating the debts. In some of its aspects it resembles Brinkerhoff v. Brown, 6 Johns. Ch. 139.

Next we have Coddington v. Bispham, 9 Stew. Eq. 574, which was, in effect, a suit by legatees to administer the estate of a decedent for the benefit of creditors and legatees, and is of the same character as a suit by creditors for that purpose.

Next we have the case of Jones v. Fayerweather, 1 Dick. Ch. Rep. 237, in the court of appeals, and in connection with it the several cases there cited in the printed argument of the counsel of the appellants. These latter were all creditors’ suits under the New York statute, which corresponds to section 88 et seq. of our Chancery Practice act, and each sought to reach equitable assets. The principal case—Jones v. Fayerweather—involved three separate suits, brought by three separate sets of creditors against an executrix of their deceased debtor, to compel her to account for property of the decedent which had been assigned or conveyed to her in the debtor’s lifetime; in fraud of his creditors, and each was avowedly brought, and properly brought, for the benefit of all the creditors.

Lastly, in Mallory v. Kirkpatrick, 9 Dick. Ch. Rep. 50, suit was brought by a judgment creditor of a corporation which had not been put in the hands of a receiver, to recover money which was alleged to be in the hands of one of its officers, who- held it in equity, in trust for the creditors; and it was held that such a suit must be-brought for the benefit of all the creditors of the corporation, - and it was suggested that a receiver would be necessary.

This review of the authorities in this state fails to produce a single precedent for the practice adopted by the petitioners in this cause; and those authorities, as well as those in other states, are all, with the single exception of Thompson v. Fisler, properly ranged under one or the other of the first five classes above stated.

I think the practice adopted in Voorhees v. Reford, 1 McCart. 155, is the safer one, and I am unwilling to sanction that here proposed to be introduced.

In coming to this conclusion I am not unmindful of the disposition of the court to adopt all reasonable rules of practice-.which will prevent multiplicity of suits by the consolidation of litigation, but I cannot see my way to override the clear right of the defendants in this cause to be brought into-court, as against the petitioners, in the regular way, by bill and subpoena, and I think the proposed practice would lead to confusion and inconvenience.

I will advise an opdfer vacating the order admitting the petitioners as complainants, with costs.


text:
    Louis C. Iauch v. Pauline de Socarras and Rudolfo de Socarras, Jr., an infant, by his guardian.
    [Filed October 17th, 1898.]
    1. In a suit to set aside a conveyance of real estate as in fraud of creditors, the fact that, though the debt sued on was an honest one, complainant had not expended money or altered his situation on the strength of defendant having any ownership- in the property, is not of itself sufficient to defeat complainant’s right to relief.
    2. A written declaration of trust, made a long time after the title had vested, but in good faith, and in strict accordance with the parol trust made at the time the title did vest, is valid as against a creditor of declarant.
    3. Nor is the validity of such trust affected by the fact that declarant was pressed by creditors at the time it was created.
    Heard on bill, the joint answer of the two defendants, the cross-bill of Pauline de Socarras, and the replication of the complainant thereto.

      Messrs. Heisley & Morris, for the complainant.

      Mr. Thomas P. McKenna and Mr. Frank P. McDermott, for the defendants.
   Pitney, V. C.

The bill is filed by a judgment creditor of Pauline de Socarras, and its object is to set aside a settlement made by her in favor of her son, Rudolfo de Socarras, Jr., the other defendant, of certain real estate, a house and lot in Long Branch, in Monmouth county, and subject that real estate to the lien of the judgment.

The complainant by his bill alleges, and the defendants by their answer admit, that judgment was recovered by him in the supreme court of this state, on the 6th of February, 1896, for the sum of $2,986.68, against Mrs. de Socarras, based upon an indebtedness which arose in the month of November, 1888. The defendants admit that Mrs. de Socarras was the owner of the premises from the 13th of July, 1891, up to November 8th, 1895, on which day she joined with her husband, Rudolfo de Socarras, Sr., in a deed of the same to Mr. McKenna, who, by a contemporaneous conveyance, reconveyed the premises to Mrs. de Socarras, in trust, for the benefit of her son, Rudolfo de Socarras, Jr., she to hold the title for his benefit, support and education during his minority, and at his majority the title to be vested in him, but if he should die before arriving at the age of twenty-one years, then the premises to vest absolutely and forever in the said Pauline de Socarras, her heirs and assigns.

Upon the case so made, the complainant’s right to relief is-clear.

But the defendants set up a defence which will be best understood by stating the facts upon which it is based.

Mrs. de Socarras’ husband, the father of the infant defendant,, is a Cuban by birth and a physician by profession, but has not practiced his profession to any great extent. At and prior to the month of November, 1888, he was engaged in the business of a caterer in the city of New York, and was financially unsuccessful and unable to support his family. Mrs. de Socarras had a sister who had married a wealthy gentleman by the name of Ballin, who lived in New York City, and she thought that, as her husband was improvident and inefficient, and not to be trusted to any extent with the handling of money, if she had control of the business she could so manage it as to make a living for herself and family, and applied to her brother-in-law, Mr. Ballin, for assistance. He advanced her $2,000 and took therefor her sealed obligation, which provided that the money was to be used by her in the catering business, but that her husband should have no participation in or control of it, and that she should have therein the assistance of her father, Mr. Iauch, who was an experienced caterer and hotel-keeper. ' Mrs. de Socarras carried on the business for awhile, with the result that the investment was lost. She, however, paid three months’ interest on the debt to Mr. Ballin.

Shortly after this — about the year 1890 — her husband’s mother, a wealthy Cuban, died, and at her death Hr. de Socarras received a fortune of about $18,000, as I interpret the evidence. About $9,000 of that he invested — May, 1891 — in the house and lot at Long Branch which is the subject of the present litigation, and furniture to furnish it, moved into it with his family and commenced the practice of medicine. His concurrent declarations were that he intended the property for the benefit of his son, the defendant Rudolfo de Socarras, Jr. A few days or weeks after Dr. and Mrs. de Socarras were comfortably settled in the house they were visited socially by a friend, a Mr. Agramonte, when he learned the situation. In view of Dr. de Socarras’ notoriously improvident habits and reckless disposition, Mr. Agramonte urged him to settle the property at once upon his son, and after considerable discussion between the doctor and his wife and Mr. Agramonte, it was agreed that the property should be conveyed to the wife, to hold for the son. The reason why it was not put in the son’s name at once was that he was an infant, and it might become important to sell the property and change the investment. The conveyance was made through a third party to the wife, and, as she swears — and she is therein supported by Mr. Agramonte — upon the express verbal understanding that she was to hold it for the benefit of the son and in trust for him until he became of age.

The husband and wife lived together until the latter part of 1894, when his habits and conduct became such that cohabitation became undesirable, and he left her, and has since spent part of the time in Cuba and part of the time in the neighborhood of New York, and she has not seen him since. Before leaving he had incurred some bills for the painting of the house and some other repairs, and Mrs. de Socarras was sued upon those bills and judgment went against her. She was also sued in a justice’s court for some little sums and judgments recovered and levy made upon the furniture in the house. Litigations resulted therefrom, but before any judgment was docketed against her she entered into communication with her husband, through a third party, with the result that he consented to join her in a deed which created the settlement of November, 1895. About that time some difficulty arose between her and the complainant, who is her brother, which perhaps extended to her brother-in-law, Mr. Ballin. The particulars of the family difficulty were not developed and are of no consequence here, but the result was that Mr. Ballin, who had never, since 1889, demanded a dollar of Mrs. de Socarras on her obligation of November, 1888, made a gift of it, by assignment, to the complainant, and he brought suit upon it in the supreme court and recovered the judgment upou which this suit is founded.

The defence of the infant set up in his answer is that the settlement upon him was made strictly in pursuance of the verbal understanding at the time that the property was conveyed to his mother by his father. And the defence of Mrs. de Socarras, as manifested in her cross-bill, is that the $2,000 advanced to her by her brother-in-law in November, 1888, was a gift to her, and that the sealed obligation which she gave was a mere formality. This defence of Mrs. de Socarras was substantially abandoned by her counsel at the hearing when it appeared that she had i made a payment of interest on account of it. And I may say further that the clear weight of the evidence is that it was a loan and not a gift, although it is palpable that Mr. Ballin never intended to enforce, and, but for the family difficulty, never would have enforced it. The only reason for referring to it here is that counsel for the complainant argued, with some force, that Mrs. de Socarras is so thoroughly contradicted in her evidence with regard to the particulars of the transaction of that loan that her general credit as a witness in the cause is shaken. I think it sufficient to say on that topic that I was able at the hearing, and upon a reading of the evidence am still able, to see that it was a simple mistake on her part, which seems also to have been concurred in by the mutual counsel of the parties, Mr. Olcott, as to the true interpretation of the different conversations that occurred between her and Mr. Ballin on the subject. In point of fact, there is really no conflict in their evidence, but simply in the interpretation which each put upon it and their several recollections of it.

An attempt is made to directly contradict Mrs. de Socarras by showing that she made declarations inconsistent with her evidence in this cause as to the parol trust, on an occasion when she was examined as a witness at Freehold in one of the litigations that arose out of suits brought against her for her husband’s debts. The pencil notes of her examination, taken by one of the counsel, seem to show that she swore positively that she did not hold the house and lot in trust for her son. But as this examination took place after the settlement in question was made, and as all the circumstances show beyond all peradventure that Mrs. de Socarras thoroughly understood the affair, it being made at her own instance, my conclusion is either that she misunderstood the question or that the counsel who took the notes misunderstood her answer or inadvertently inserted the word not” in máking his notes. I find it impossible to believe that she intentionally said what is attributed to her by the counsel and other witnesses.

It is admitted that Mrs. de Socarras never invested any money in the premises, and that they were purchased by her husband with his funds, and I find the fact to be that when they were conveyed by her husband, through an intermediary, to her it was upon the express verbal understanding that she should hold the premises for the benefit of their sou, Rudolfo de Socarras, Jr. Mr. Agramonte swears, and the other evidence indicates, that she and her husband never had lived happily together, and that their relations never were such as to render it probable that her husband would make her an absolute present of this valuable house and lot, comprising nearly his whole fortune, to do with as she chose.

The simple question of law upon this state of facts is whether or not, in the absence of a written declaration of trust made at the time of the gift, the subsequent declaration is sufficient to validate it as against a creditor.

Counsel for the defendants made one other point, which, he argued, is sufficient of itself to defeat the complainant’s claim, but, if not, certainly supports the other and main point which I have above stated. The point so taken is that the complainant is a mere volunteer, without any merit whatever; that neither he nor his assignor has expended a cent of money or altered their situation in the least upon the strength of her having any beneficial ownership in this property.

There is great force in that position. Certainly there is nothing in the complainant’s position before the court to incline the court to look upon his case with any great favor. But I cannot say that that point is of itself sufficient to defeat his right in this court. He represents a just and honest debt. But it is further to be observed that that debt arose long before the purchase of this property, and when both the Doctor and Mrs. de Socarras were poor, and hence was not contracted upon the strength of any apparent ownership of the defendant Mrs. de Socarras. And, in my judgment, that is, after all, the real equitable ground upon which settlements of this kind are set aside. People do give credit, and have a right to give credit to others, upon the strength of their apparent ownership of property; and if this debt had been contracted to an outside person who had no notice of the secret trust, and while the title to these premises rested in her, the position of the complainant would be much stronger than it is.

But, taking the case as it is, the question now to be determined is whether or not a written declaration of trust, made a long time after the title has vested, but in good faith, and in strict accordance with the parol trust made at the time the title did vest, is valid against a creditor of the declarant. I think it is.

It was so held, in effect, by the court of appeals in the case of Jamison v. Miller, 12 C. E. Gr. 586. It is not necessary to state the facts of that case, which are not precisely like those here involved, and I simply refer to the language of Mr. Justice Dixon, found on p. 592: “The fact that these later writings were signed after the complainant’s claims intervened, does not rob them of their efficacy under the statute. The writings are but evidence, the trust is anterior and independent, and the rights which the court regards are those that spring from the creation, not the mere proof of the trust. There, is no inequity in permitting the trustee of an express trust to make evidence upon which the courts can recognize and effectuate it, in order that the expectations of his creditors, who attempt to enforce their remedies against the trust estate, may be disappointed.”

In support of his position he cites Gardner v. Rowe, 2 Sim. & S. 346, decided by Vice-Chancellor Leach, and affirmed, on appeal, by Lord Eldon in 5 Russ. 258.

The very question was decided by Vice-Chancellor Green in Silvers v. Potter, 3 Dick. Ch. Rep. 539, where he collects all the authorities and discusses the question in a thoroughly satisfactory manner.

In the same direction is the case of Davis v. Graves, 29 Barb. 480, cited by me in the case of Pitney v. Bolton, 18 Stew. Eq. 639 (at p. 643). The rule established by Davis v. Graves is this: That if A, being indebted, makes a conveyance to B for the purpose of defrauding, his creditors, upon a secret trust that B will reconvey the property to A, and afterwards B becomes indebted also, and being pressed by his creditors reconveys the property to A in execution of the original parol trust, the creditors of B will not be aided by the court in disturbing the last conveyance.

I think the case is not altered by the fact, proven at the hearing, that Mrs. de Socarras was somewhat pressed by other creditors beside the complainant at the time the settlement was made. The complete answer to any argument from that situation is that the fact that Mrs. de Socarras held the title to the property in trust, provable only by parol, for her son, rendered it her clear duty to give that son written evidence of that trust as soon as any danger arose that her creditors might intervene and appropriate it to • the payment of their debts. In short, her duty to her son impelled her to take efficient, means to “ hinder and delay” her creditors in reaching this property, since, in conscience, it was not her own, and her creditors in that forum had no right to have it applied to the payment of their debts.

For these reasons I must conclude that the complainant’s bill must be dismissed, with costs to be recovered by the defendants on their joint answer and that Mrs. de Socarras’ cross-bill must be dismissed, with costs to the complainant on his replication to her cross-bill, to be recovered against her individually.