author: Caldwell, J.

text:
    Platt Card v. Chester Walbridge and others.
    Where a debtor has taken the benefit of the bankrupt law, retaining the equitable title to property which is not included in his schedule of assets, a creditor, who has not claimed under the assignment in bankruptcy, may proceed, in his own name, to subject such equitable assets to the payment of his claim.
    Such property being retained in fraud of the bankrupt law, the certificate, .in bankruptcy, is no bar to the action.
    In such case, the complainant may proceed immediately in chancery, on a dormant judgment, without reviving by scire facias.
    An attorney at law, who has been employed to collect a claim, has no power to sell the claim, unless by express authority from his client. After judgment or decree, his authority only extends to issuing execution and receiving the debt.
    This is a bill in chancery, reserved in Lncas county.
    The facts, sufficient for an understanding of the case, are stated in the opinion of the court.

      Hill <f> Bennett, for complainant.
    The different defendants were represented by E. Lane, Tilden & Baker, and Charles E. Perrigo.

   Caldwell, J.

The complainant is one of the creditors of Chester Walbridge, and has filed his bill, for the purpose of subjecting certain equities, which he alleges said Walbridge holds, to the payment of his claim. The facts necessary to an understanding of the case are these:

On the 21st of July, 1837, the complainant recovered judgment, in the common pleas of Lucas county, against Chester Walbridge, for $775.66. It does not appear that any execution was ever issued on this judgment. At the July term, 1839, of the circuit court of the United States, for the district of Ohio, Marvin and McNulty, two of the defendants in this case, recovered a judgment against Chester Walbridge and Heman Walbridge, for $1,631.43, and on the 9th of October, 1839, they filed- a bill, in the court of common pleas of Lucas county, against the Walbridges and others, to subject lots Nos. 582, 461, 462, 463 and 464, in the city of Toledo, to the payment of their judgment. At the April term, 1845, they obtained a decree for $2,186.11, finding the equitable title to these lots to be in Chester Walbridge, and ordering them to be sold to pay the decree.

At the same term of the court, James Graham obtained a similar decree, subjecting the same property. In October, 1842, Chester Walbridge applied for the benefit of the bankrupt law, and in September, 1843, received his final discharge. The bill sets forth these facts, alleging that these lots, as well as divers other tracts of land in Ottowa county, in this state, and a tract of land in Pennsylvania, and other property, is held in trust by others for Chester Walbridge. The bill also alleges that Chester Walbridge obtained his certificate by fraud; that, although he was the equitable owner of this property, he did not present it in his schedule of assets. The prayer of the bill is, that, after paying off any prior liens, the property may be subjected to the payment of complainant’s judgment.

The defendant Chester Walbridge, has plead his discharge in bankruptcy, and denies all fraud in obtaining such discharge, and disclaims all interest in the property, at the time, and all fraud of every kind. It will be perceived that the judgment of the complainant is now dormant, no execution, as appears from the record, ever having been issued on it. It is contended on the part of defendants, that complainant cannot come into a court of chancery on a dormant judgment, but that he must revive by scire facias. Whatever might be the proper •course of procedure in a case differently situated, in a case like the present, where the only remedy to be had is against equities, that can only be subjected through the aid of a court of chancery, and where, before these can be reached, the certificate of bankruptcy, which otherwise would be a complete bar to the action, must be set aside for fraud, we think the aid of a court of chancery may be properly invoked in the first instance.

The great question in the case is one of fraud, which has to be established before the complainant can proceed one step in his cause, and comes within the original powers of a court of chancery. The defendant can make every defense in this proceeding that he could on scire facias to revive the judgment. It is also contended on the part of the defense, that this suit 'should have been brought in the name of the assignee in bankruptcy. Now, if the complainant claimed by virtue of the proceedings in bankruptcy, there would be great force in the suggestion that the creditors should proceed in the name of the assignee. But in this instance, the creditor proceeds in derogation of the proceedings in bankruptcy. All that we know of the proceedings, on the defendant’s application for the benefit of the bankrupt law, is, that an assignee was appointed. It nowhere appears that any effects came into his hands. None of the creditors before the court in this case, proved their claims under the bankrupt law; the assignee sets up no claim to control the matter, so far as appears; nor have we any evidence that now or at the filing of this bill, there was any assignee acting in the matter.

In the case of Sands et al. v. Cadwise et al., (4 Johns. Rep. 601,) which was a case under the first bankrupt law, the court say, that if an assignee refuse to file a bill, any creditor may do it. In that case, the assignee refused to file the bill, but claimed the right to control the effects. That case is, in many respects, not analogous to the present; but it is an authority going to show that, if the general rule be as contended by counsel for the defense, that the assignee should bring the suit, there are exceptions to it; and that, where the creditor cannot have his remedy through the assignee, he can, in a proper case, proceed in his own name. Indeed, if the assignee could alone bring the suit, the creditor, in many instances, would be deprived of all remedy. The present case will illustrate this.

The bankrupt law provides that all suits must be brought, by the assignee, within two years from the issuing of the certificate of discharge to the bankrupt, or after the cause of suit shall have first accrued. Chester Walbridge received his certificate of discharge in September, 1843. The bill in this case was filed in June, 1845, two months before the expiration of the two years. If it were held that the assignee could alone bring the suit, and the bill, on that account, should be dismissed, the complainant would be without remedy, the time having long since passed in which the assignee could bring suit. To establish such a rule would subject creditors to the limitation of two years, provided in the bankrupt act, which we think should not be •done in a case where the certificate was obtained in fraud of the law, and therefore void.

Under all the circumstances of this case, we think the complainant might with propriety proceed in his own name. The next question that arises in the case is, whether the equity in the property sought to be subjected in this proceeding, was in Chester Walbridge at the time of his proceedings in bankruptcy ?

The defendants in whom the legal title to all this property was placed, are in default for answer, and a decree pro confesso has been taken against them in the court of common pleas, from which they have not appealed. Hiram Walbridge, the .son of the defendant Chester, states that his father went into possession of lots No. 461, 462, 463 and 464, in 1834, and that he went into possession of lot 532 in 1837, and that he remained in possession until 1845, when they were taken pos.session of by the receiver. He says these lots in Toledo were purchased from Stickney and Bissell, and were conveyed to Henry S. Walbridge. He says he always supposed this conveyance was made to Henry S. Walbridge with the approbation of Chester. He states that Chester paid for the lots — that he told him that he got the money from Kidder, and that he knows of his getting money from Kidder.

He says that lot No. 532 was conveyed to him in 1842, by Henry S. Walbridge; that Chester retained the deed in his possession, and never delivered it to him, and that afterwards, by the direction of Chester, he returned the deed to Henry S Walbridge.

The two small tracts of land in OttoWa county he says were conveyed to him in 1842. The larger tract of land was paid for by Chester Walbridge, and conveyed by his direction to a man by the name of Berdan, and he understood from both parties, that Berdan held the land for Chester Walbridge.

Berdan died in 1841. A day or two before his death he conveyed this property to Hiram Walbridge. Edson Allen states that Berdan frequently told him that the property was conveyed to him without his knowledge or consent, and expressed an anxiety to get clear of it, thinking there was something wrong in the conveyance. All the testimony shows that Chester Walbridge, up to 1845, when the property went into the hands of a receiver, used the property as his own, occupying a part, and receiving rents for the balance. From this and the other evidence and facts connected with the case, we think there is no doubt that the equitable interest in this property, at .the time he took the benefit of the bankrupt law, was in Chester Walbridge. Objection is taken to the testimony of Hiram Walbridge. It is said he is not a competent witness against his co-defendants. So far as his co-defendants.are concerned, we think they cannot object to his competency as a witness. The. title to a large part of the property is in him, and he is swearing directly against his own interest, and he has no interest against them. The interest of Henry S. Walbridge and Hiram Walbridge, .who hold the legal title to all this property, is not now before the court, they both having permitted a decree against them in the court below, by default from which they have not appealed.

We are of opinion that complainant is entitled to have this property subjected to the payment of his debt, subject to the prior incumbrances. Another question in the case arises between the different incumbrances in reference to the claim of Marvin and McNulty. As above stated, they recovered their judgment in 1889; and obtained their decree subjecting those lots in Toledo to the payment of it in 1845. John Fitch, Esq., was their attorney, in recovering the judgment and obtaining the decree.

Shortly after the decree was obtained in 1845, and as it appears before Marvin and McNulty knew anything of it, Mr. Dorr was in New York, the residence of Marvin and McNulty* and proposed to them the purchase of their claim. They refused to sell, and he then proposed to collect it for them. They gave him a letter to Fitch, their attorney, authorizing him, if he should think it advisable, to give Dorr one half of the claim for collecting it. Dorr did. not show this letter to Fitch, but some months afterwards, claiming to have power to sell the judgment, he and Hiram Walbridge entered into an agreement that Hiram should pay two hundred dollars for the decree. The parties met, and when Dorr was asked for his authority, he presented the letter to Fitch authorizing him to make a contract with Dorr for the collection of the decree.

Dorr said that Marvin would agree to the arrangement, and Fitch, as the attorney of Marvin and McNulty, made the assignment and received the two hundred dollars. The assignment was made to the defendant, William J. Daniels. Daniels claims the decree by virtue of this sale. The complainant claims that Hiram Walbridge being one of the parties liable on this decree, by his purchase of it, it thereby became satisfied. Marvin and McNulty claim that they are still the owners of the decree, never having given any authority for the transfer of it, and never having ratified it in any way. Now it is evident from the testimony of Fitch and Dorr, that Marvin and McNulty had given no authority whatever for the sale of this claim. They appear, from the whole circumstances of the transaction, to have been, at the time Dorr visited them in New York, ignorant of the situation of their claim or that a decree had been taken; and it appears that they were not informed of the sale after it took place. Indeed it cannot, for a moment, be supposed that they, if they had known anything about its situation, would have sold a claim of over $2100, amply secured on real estate by decree, for two hundred dollars. Fitch says he acted, in making the transfer, without any authority except his general authority as their attorney, to collect the claim. We suppose,, that, as attorney at law, he was not clothed with any such power, and that he could not sell the claim without express authority to that effect. An attorney is presumed to be employed on account of his professional skill, to attend to such matters, as come within the range of his professional duties; his business, is to collect claims that are put in his hands, not to trade on-' them. In 10 Johns. Rep. 220, it is held, that the power of an attorney after judgment or decree, extends only to issuing execution and receiving the debt. This, we think, is the true rule. The transfer then is void, and Marvin and McNulty must still be considered as holding the decree.

The complainant, then, will take his decree for the sale of' the real property in Toledo and Ottowa county, and the appropriation of it to the payment of his claim, subject to the decrees of Marvin and McNulty and Graham, which are prior and equal liens on the Toledo property.

The Pennsylvania property being without the jurisdiction of this court, we will make no decree in reference to it. The-bill, so far as this property and the other claims are concerned,, will be dismissed.


source: Caselaw Access Project

author: Hitchcock, C. J.

license: Public Domain

text:
    James Tremper et al. v. Edward Barton, jr., et al. The Same Plaintiffs v. The Heirs of Thomas Morris et al.
    A deed made for the purpose of defrauding creditors, is good as between the . parties thereto and those claiming under them, though void as to creditors.
    Where a father purchases and pays for land, and directs the conveyance to be made to one of his children, the presumption of law is, that it is intended as an advancement; but this presumption may be rebutted by proof.
    Where there are numerous complainants in a bill in chancery, one of whom is an infant, who does not sue by his next friend, and for whom no guardian is appointed, and the bill is dismissed; on bill of review brought by the infant, the decree will not be reversed, where the bill shows that the infant has no interest in the subject-matter of the controversy.
    These two cases, involving in many respects similar principles, are bills of review reserved in Clermont county.
    The first is a bill seeking to review a decree, entered in the supreme court of Clermont county, at the. April term, 1887. The principal object of the original bill, which was filed by the present complainants together with others, against Edward Barton, jr., et al., was, to charge the said Edward Barton, jr., as holding certain lands described in the bill, in trust for Edward Barton, sen., and his heirs. The complainants were the children and heirs of the said Edward Barton, sen., deceased, and the said Edward Barton, jr., was also a son and heir of the said Edward Barton, sen.
    Answers were filed and testimony taken, and, upon hearing, the court dismissed the bill.
    The errors assigned in the bill of review are,

      Mrst, That the supreme court admitted in evidence depositions and parts of depositions, which tended to prove, that the deed in the original bill mentioned, made and executed by James S. Johnson and Mary Johnson, his wife, to the said Edward Barton, jr., was so made by the direction of said Edward Barton, sen., to defraud, hinder and delay the creditors of the said Edward Barton, sen., in collecting their debts; such testimony being altogether illegal and incompetent; and that the court dismissed the bill because of such evidence, improperly received and considered.

      Second, That the court erred in dismissing the bill, whereas, by the rules of law and equity, the complainants were entitled to relief, and a decree should have been entered accordingly.

      Third, That the present- complainants were infants at the time of the rendition of the decree, and had no guardian or next friend to represent them in court.
    No more specific statement is made of the case, as the contents of the bill and matters of evidence are set forth, so far as is deemed necessary, in the opinion of the court.

      John Jolliffe, for complainants.

      Jacob F. Qrapsey, for defendant.
   Hitchcock, C. J.

The decree which is sought to be reviewed in this case, was rendered in eighteen hundred and thirty-seven — more than twelve years before the filing of the present bill. But still, the complainants being, as they say, infants at the time of the rendition of the decree, are, so far as any limitation is concerned, within time in filing this bill of review.

It appears further, from the bill of review, that the parties claiming interest in the tract of land in controversy,- and referred to in the original bill, have been entirely changed since the rendition of the original decree. At that time, the widow and heirs of Edward Barton, sen., with the exception of Edward Barton, jr., were contesting the right to this land with the said Edward Barton, jr. Since that time, Edward Barton, jr., has transferred his interest to Thomas Morris, since deceased, and the interest of the widow and other heirs of Edward Barton, jr., has become vested in John Jolliffe; so that the real parties now contesting the right to this land are John Jolliffe and the heirs of Thomas Morris.

The original bill was filed on the fourth of July, 1836, by Joseph Barton and fifteen others, representing themselves to be the children and heirs of Edward Barton, sen., deceased, against Edward Barton, jr., and others, the said Edward Barton, jr., being also an heir of said Barton, sen.

It is represented in the bill, that in 1817, one Amos Haines entered into a contract with the said Edward Barton, sen., by which he agreed to sell and convey to the said Barton, upon the terms therein stipulated, a certain parcel of land in Eerdi nand O’Neal’s survey, No. 913, in Clermont county, and that the purchase was paid by the said Edward Barton, sen.

So far there is no controversy between the parties. Such contract was entered into, and the purchase was paid by the said Barton, partly before and partly after the death of said Haines.

It is further stated in the bill, that, in 1819, the said Amos Haines died, leaving Marquis de La Fayette Haines his only child and heir at law; and that the said Marquis de La Fayette Haines died in 1822, leaving Noah Haines, Robert Haines, Joseph Canby and Margaret, his wife, formerly Margaret Haines, Nathan Haines, Haines McKay, Washington McKay, Noah McKay, Amos McKay, Joseph Miller and Cassandra Miller his heirs at law — the said Noah Haines, Robert Haines, Margaret Canby and Nathan Haines, being the brothers and sister of the said Amos Haines, and the other persons named, his nephews and nieces; that, in 1823, James S. Johnson, having received a power of attorney from the heirs of Marquis de La Fayette Haines, authorizing him to convey the land descended through the said Fayette from the said Amos, to them, and he having intermarried with Mary, the widow of the said Amos, the said Edward Barton, sen., applied to him for a deed of so much of the land by him purchased as he was entitled to; and the said Johnson, in pursuance of the request of the said Edward Barton, sen., did convey, in company with his wife, about one hundred and thirty-five acres of the land to Edward Barton, jr. Subsequently Edward Barton, sen., sold thirty-five or thirty-six acres of this land, which was conveyed by Edward Barton, jr. That Edward Barton, jr., was not of full age when the land was conveyed to him, and it is charged that he took it in trust for his father. It is further charged that the power of attorney under which Johnson acted, was defective, and that, by his deed, no legal title was conveyed.

The facts of the case show that these statements are generally true. The contract with Haines was complied with by Barton, sen., and a deed made by Johnson and wife to the younger Barton. It was so made in pursuance of the direction of Barton, sen. But there is no evidence of any trust. There is evidence that the object in having the conveyance so made was, to keep the property out of the way of the creditors of Barton, sen. Of this fact there can be no doubt. The power of attorney, under which Johnson acted, was defective, in that it was attested by only one witness. But in conveying the land, he conveyed with full covenants of -warranty, and in 1824 and 1825, the heirs of La Fayette Haines conveyed all their interest in his estate to said Johnson, by deeds duly executed — at least, such was the fact with respect to all the heirs except Mary McKay, who was the sister of Amos Haines.

The bill seeks relief against Edward Barton, jr., if the title of the land should be found to be in him; if not, then against the heirs of Amos Haines. Edward Barton, sen., remained in possession of the land until his death, which took place in or about 1835.

There are many statements and allegations in the bill which are not noted, but it is believed that nothing further is necessary to be stated, for the understanding of the points heretofore decided. As before stated, the case came on for hearing at the April term of the supreme court, 1837, and the bill was dismissed.

It is claimed that the court erred in receiving evidence to prove that the design of Edward Barton, sen., in directing the deed to be made to Edward Barton, jr., was to defraud creditors ; and it is said that upon this point the case was determined. Whether this were so or not, the record does not show. It may have been so, or it may be the mere conjecture of counsel. The question raised by counsel now is, whether this was competent evidence. This objection does not well come from complainant’s counsel; for the depositions proving the fraud are depositions taken by complainants, and it does not appear that any objection was made to them or any part of them; and as they were on file .in the case, it is not surprising that the court should have looked into them and considered them a part of the case.

But one objection made is, that there was nothing in issue between the parties, which rendered it competent or proper to prove the fraud. This is urged by counsel in argument; the objection is not made in the assignment of errors. In this, however, counsel is mistaken. Edward Barton, jr., does allege that at the time the conveyance was made, his father was involved in debt and embarrassed in his circumstances.

It is, however, assumed by counsel, that even admitting that the design of this conveyance was to defraud creditors, still Edward Barton, jr., could only take the title in trust for hi's father, or rather would take no title at all, and the statute of frauds is referred to, which declares that all conveyances made or obtained for the purpose of defrauding creditors “ shall be decreed utterly void and of no effect.” If this position be sound, then I can see no error in dismissing the bill so far as Edward Barton, jr., was concerned, and the great object of the proceeding was to reach the land in his hands. ■ Tf he took nothing by the deed, because by the statute it was “ utterly void,” he certainly had no interest upon which a court of chan eery could act.

But is it a sound principle that a deed of the character re-' ferred to is “utterly void,” as between parties to the same, and privies ? This question was settled by this court twenty-fiva years since in the case of Burgett v. Burgett, (1 Ohio Rep. 469,) in which it was held by a majority of the court, that such deed was not void except as to creditors and subsequent purchasers. And from the time of the decision of that case, I believe such has been considered to be the law of the state. It is true I did not concur with the majority of the court in the decision of that case, being disposed to give the statute a more liberal construction. Still, I have never since felt disposed to question the correctness of the decision, believing it to be more important for the interest of the people of the state, that the law should be considered as settled, than that it should be set-tied in a particular way or manner. It seems to me clear, that the construction put upon the law by the court, will be more effectual to prevent fraudulent conveyances, than the construe-, tion which I should myself originally have put upon it.

The evidence in the case which is now sought to be reviewed, would certainly have justified the court in finding that the conveyance made to Edward Barton, jr., was directed so to be made with a view to defraud creditors, and therefore the title thus vested in him could not be reclaimed by the father, or his representative. The father, although he lived twelve years after the title was vested in the son, did not attempt to reclaim it, if at all, until a short time before his death. As before remarked, there is nothing in the record to show that the court rendering the decree, was induced so to do, in consequence of the fraud, still if it were in fact so, it would be no cause for reversing that decree.

But the court might have been operated upon by a different principle of law which would be equally conclusive against the complainants in the original bill. The ease shows that Edward Barton, sen., paid for the land, and that he directed the conveyance to be made to his son Edward, jr. Now in similar circumstances, if the purchaser of land directs the conveyance to be made to a stranger, the grantee may be considered as holding the title for the purchaser. There is a trust which may be enforced. But if a father thus purchases land, and directs the conveyance to be made to a son or daughter, the presumpfion is that it is intended as an advancement. This presumption may be rebutted by competent evidence. Declarations made by the father subsequent to the conveyance, however, would not be sufficient. But even if they were, it seems in this case that the father treated the land as his son’s for many years after the date of his deed, and even up to near the time •of his death. True, he sold a part of the land included in the ■deed, and the son conveyed the same according to his wishes. But there is certainly no evidence in the case which would of necessity induce the court to say that this was not intended as .an advancement, unless it be the evidence which shows a fraudulent intent. There is nothing in the case inconsistent with the idea that the court may have considered this as an advancement, and decided the case accordingly.

It is next contended by complainant’s counsel, that Edward Barton, jr., had no title to this land, and that upon the whole ■case the decree should have been for the complainant; and it is assigned as error that the court did not so decree. It would .seem to me that where an attempt is made to review a decree, the specific errors relied upon should be pointed out. The ■object to be attained by a bill of review is different from that to be attained by a petition for rehearing. But under this general assignment, I can see no material difference between the two. To ascertain whether there is error, the whole case must ■be examined, the facts as well as the law arising upon the facts. .It is in truth nothing but a rehearing. We have, however, carefully examined this case. The title of Edward Barton, jr., is ■evidenced by a deed from Johnson and wife, with covenants of warranty, and subsequent conveyances from the heirs of La Fayette Haines, to Johnson, conveying to him all their interest in the estate of said Haines.

It is insisted by counsel for the complainant, in an elaborate .argument, that in virtue of these conveyances Barton obtained mo title. I shall not go into a careful examination of this argument for this reason. This identical question was before this court in the case of Lessee of Barton et al. v. Heirs of Thom as Morris et al., (15 Ohio Rep. 408,) and substantially the same argument was presented as in the present case. The controversy was with respect to the same land, and the lessors of the plaintiff claimed title under deeds from James S. Johnson, and the heirs of Amos Haines, subsequent in point of time to the conveyances made by said Haines to Johnson, and from Johnson to Edward Barton, under whom the defendants claimed title. The court, after full investigation, held the title of Barton to be valid in law, and entered judgment for the defendants. We are not disposed to question the correctness of the decision then made.

Another error assigned is that the complainants in this bill were infants at the time the decree was entered against them, and that some of them are infants still. There is more difficulty in this question. It must be remembered however that they were complainants, not defendants, in the original case. Had they been made defendants in that case, and had a decree been taken against them without the previous appointment of a guardian ad litem, it would have been error. But when they with others come into court as complainants and are represented by able and persevering counsel, it can hardly be supposed that their rights have been sacrificed. Still, had the fact been made known to the court, that a part of the complainants were infants, guardians would undoubtedly have been appointed. It may be error that this was not done. But I suppose that a court of equity will hardly reverse a former decree, unless some benefit may by possibility result to those seeking the reversal. The bill of review in the present case shows that no such benefit could result to these complainants. The land in controversy in the original bill has passed into other hands, and they are no longer interested in it. So far as the costs of the former suit are concerned, it is not necessary to reverse the decree on that account. Those costs have been paid. The only effect of a reversal would be, still to continue litigation with respect to a certain piece of property, the right to which has been severely, and almost constantly contested in courts of law and courts of chancery for a period of more than thirteen years.

Upon the whole case, the court are of opinion that the bill should be dismissed.

The second case, of Tremper and others v. The Heirs of Thomas Morris and others, is intimately connected with the one we have been considering. The complainants are the same, and the property in controversy is the same.

The leading facts in the case are as follows: Subsequent to the decree rendered in 1837, before referred to, Thomas Morris purchased the land in controversy of Edward Barton, jr., and commenced an action of ejectment against the tenant in possession, which was removed to the supreme court, and a judgment rendered in favor of Morris at the April term of the court, 1838.

On the 11th of June, 1838, the original bill in the ease now sought to be reviewed, was filed, the object being to enjoin the judgment at law recovered by Morris, and a prayer was inserted in the bill for partition of the land in controversy, among the heirs of Edward Barton, sen., deceased. All said heirs were made parties to the bill either as complainants or defendants. It was alleged that Morris acquired no title by his purchase' from Edward Barton, jr., except to one-seventeenth part of the land. That since the judgment in ejectment the complainants had acquired a legal title by conveyance from Johnson and a part of the heirs of Amos Haines, and that they expected to acquire the legal title to the entire premises.

Morris demurred to the bill, but his demurrer was overruled in the court of common pleas, and the judgment at law perpetually enjoined. Prom this decree he appealed to the supreme court, and in the supreme court filed an answer in which he referred to the case above decided, and made the pleadings, evidence and decree in that case, part of his answer. The case came on for hearing at the April term, 1839, of the supreme court, when the injunction was dissolved and the bill dismissed.

So far as this case is like the case of these same plaintiffs against Edward Barton, jr., it is unnecessary to say anything further than has already been said. In this case, however, it is shown that there had been an action of ejectment, and that the plaintiff in that suit had recovered under a title derived from Edward Barton, jr. The title must have been the subject-matter of litigation between the parties, and the plaintiff must have recovered upon the strength of his own title, not upon the weakness of the title of the opposite party. Now, how did the complainants attempt to avoid this recovery ? Merely by the allegation, that the plaintiff in the ejectment case, had no legal title, and that the defendant in that case had in part procured a legal title,, after the trial at law, a,nd expect soon to procure a perfect legal title. This might perhaps have furnished good cause for a motion for a new trial, in the court of law, in which the ejectment case was tried, but it certainly furnishes no reason for enjoining the judgment at law, and that was the object of the bill.

Another complaint made by counsel is, that the supreme court dismissed the bill without settling the matter of partition. So long as the question of the legal title was in controversy no partition could with propriety be made. But so far as this question was before the court, it was apparent that for the time at least the legal title must be considered as in Morris. He had, just previous to the filing of the bill, recovered in ejectment. But it is said that there were other parties to the record, who had not been served with process, etc., and that the case should not have been disposed of until these parties were before the court.

What is the state of the record ? The original bill was filed against Morris to enjoin a judgment by him recovered. The same bill contained a prayer that partition should be made of the premises recovered in ejectment, between the complainants, and numerous defendants made in the bill. Morris demurred to the bill in the court of common pleas, and the demurrer was overruled. From this decree he also appealed. Counsel for complainant insists that by this appeal, the case above, as respects Morris, was appealed. Admit that this position is well taken, and I am not disposed to controvert it, and it follows as a necessary consequence that the supreme court might with propriety dispose of that part of the case before it, and if such disposition of the case has the effect to destroy all pretense of claim to partition, it can make no difference as to the right and duty of the court.

The hill of review in this case is dismissed.

Spalding, J., dissented, holding that a deed made to defraud creditors is absolutely void, not only as to creditors, but as to the parties to the conveyance, and their representatives.


text:
    William Green v. James Ramage et al.
    Where A has a mortgage upon two lots, and B has a subsequent mortgage upon one, and 0 upon the other of the lots, of a later date than the mortgage of B, A cannot be compelled at the instance of B to exhaust first the lot on which G has his mortgage.
    In such case A will be required to make his debt out of both lots, in proportion to the amount that each may produce.
    This is a bill in chancery, reserved in Muskingum county.
    The facts are these: Ramage had the legal title to lot No. 14, and an equitable title to lot 39, ir. the town of Zanesville. He conveyed by mortgage, recorded October 10th, lot 14 to Wilson. He also assigned the title bond, by which he held lot 39, to Wilson to secure the same debt secured by the mortgage. He conveyed by mortgage, recorded October 21, to Green, lot 14, and to Hillier, lot 39 by mortgage recorded October 23d

      The bill is filed by Green for the purpose, among other things, of compelling Wilson to exhaust lot 89 before proceeding against the other, on which Green has a mortgage.

      tS'earl $ O’Niell, for complainant.

      Groddard, James ¿f* JSastman, for defendants.
   Caldwell, J.

If there were but the two mortgages on the property, Wilson’s and Green’s, Green would without doubt be entitled to the relief which he claims. In Story’s Equity, vol. 1, sec. 633, the rule on the subject of marshaling securities is stated thus: “ The general principle is, that if one party has a lien on, or interest in two funds for a debt, and another party has a lien on, or interest in one only of the funds for another debt; the latter has a right in equity to compel the former to resort to the other fund, in the first instance, for satisfaction, if that course is necessary for the satisfaction of the claims of both the parties.”

In this case, however, there are three parties interested. If Green should compel Wilson to exhaust lot 39 before he comes on lot 14, then Green will have the benefit of the fund arising from lot 39; although he took no security on it. But Sillier by this arrangement will be deprived entirely of his security on lot 39, although he took a mortgage on it. We think the rule cannot be applied in a case of this kind. The principle is one established for the purpose of securing to parties the rights to which, upon the principles of natural justice, they are entitled. To deprive Sillier of his security in this way, would be manifestly unjust. When Green took his mortgage he had notice of the mortgage of Wilson, on lot 14. When Sillier took his mortgage on lot 39, he had notice only of the lien of Wilson, which was all the incumbrance on it. There was nothing connected with Wilson’s lien, that was even calculated to put him. on inquiry in reference to Wilson’s mortgage on lot 14, because Wilson’s liens on these two lots were created by separate instruments. But if Wilson’s lien on the two lots had been created by a single mortgage, Hillier was not bound to notice the situation of lot 14, having nothing to do with it. We think then that justice between Hillier and Green requires that each should have the full benefit of his mortgage, and this can only be done by requiring Wilson to take his debt out of the proceeds of both lots proportioned to the amount that each lot may produce. The decree will be so entered.


author: Spalding, J.

text:
    Augustus Moore and another v. Alexander Adie’s Administrator.
    An action of debt may be sustained in the courts of this state, upon a decree rendered by a court of chancery in Kentucky.
    This is a writ of error to the Supreme Court for Hamilton county.
    Alexander Adie, in his lifetime, commenced an action of ■ debt against the plaintiffs in error, in the superior court of Cincinnati.
    The declaration alleges that Adie, on the 12th day of December, 1842, filed his bill in chancery in “ the Louisville chancery court,” against said Moore and Green and one Benj. E. Clark, to which they filed their answers; that such proceedings were thereupon had, that afterwards, to wit, on the 3d day of December, 1844, at Louisville, in the State of Kentucky, it was amongst other things decreed and ordered by, the said “ Louisville chancery court,” that the said Moore and Green •should pay to the said Adie $1190, and also his costs expended in the prosecution of the suit, which are $12.85, making together $1202.85, the debt demanded, as by the record thereof; in said court, appears. By reason whereof an action hath accrued, etc.
    The plea is “ null tiel record.”
    At the June term, 1847, of said superior court, the plaintiff recovered judgment against the defendants for twelve hundred and two dollars and eighty-five cents debt, and one hundred and eighty dollars and forty-two cents damages, with costs of suit.
    On the trial the defendants excepted to the opinion of the court overruling their objection to the introduction of the record in the chancery suit in Kentucky.
    At the May term, 1848, of the supreme court for Hamilton county, the judgment of the superior court of Cincinnati was affirmed.
    The case is removed here by a writ of error, and the following assignment shows the nature of the questions presented for consideration:
    First. That the decree of the Louisville chancery court, adduced in evidence, was rendered without jurisdiction, is entirely void, and no part thereof can be enforced against the defendants thereto in any other court.
    Second. That the testimony below was insufficient, in law, to warrant the judgment of the said superior court.

      Greorge E. Pugh, for plaintiff in error.

      The decree will not support an action at law.

    The supreme court of the United States decided long since, in unqualified terms, that no action could be brought at law upon a chancellor’s decree. That decision continues to be the law of that forum. Hugh v. Higgs, 1 Wheat. 697. The supreme court of New Jersey, in Van Buskirk v. Muloch, 3 Harr. 184, made the same decision.

      Eichelberger v. Innyser, 8 Watts Rep. 181, the supreme court of Pennsylvania decided that an action at law would not lie upon the decree of a probate court settling the balance due by a guardian to his ward’s estate.
    I do not think it necessary to claim the full extent of these authorities. I merely suggest that as long as we have in our books of chancery, pleadings and practice, specific directions bow to frame a bill to enforce a decree previously rendered, and as long as the distinction between equity and law continues to prevail, it would be well not to encourage actions upon decrees.
    The reason why debt will lie upon the judgment of a court of law is well explained by Blackstone, and does not apply to decrees:
    “ And thus it is, that every person is bound and hath virtually agreed to pay such particular sums of money as are charged on bim by the sentence, or assessed by the interpretation, of the law. For it is a part of the original contract, entered into by all mankind, who partake the benefits of society, to submit in all points to the municipal constitutions and local ordinances of that state of which each individual is a member. Whatever, therefore, the laws order any one to pay, that becomes instantly a debt which he hath beforehand contracted to discharge. And this implied agreement it is that gives the plaintiff a right to institute a second action, founded merely on the general contract, in order to. recover such damages, or sum of money, as are assessed by the jury, and adjudged by the court, to be due from the defendant to the plaintiff in any former action. So that, if be hath once obtained a judgment against another for a certain sum, and neglects to take out execution thereupon, he may after-wards bring an action of debt upon this judgment, and shall mot be put upon the proof of the original cause of action; but upon showing the judgment once obtained, still in full force, and yet unsatisfied, the law immediately implies that, by the original contract of society, the defendant hath contracted a debt and Is bound to pay it.” 8 Bla. Com. 160.
    That these principles do not apply to decrees in equity,, and actions founded thereon, will appear from the fact that courts of equity are not technically courts of record, and that they do not proceed according to the course of the common law.
    The case of Carpenter v. Thornton, 3 B. & Ald. 52, is a. leading and decisive authority. The plaintiff’s testator had filed a bill for specific performance against the defendant, and. had obtained thereon a decree for the purchase money and interest. Eor this sum, so absolutely assessed and fixed, the-plaintiff, as executor, brought an action of debt.
    Abbott, C. J. “ It has been suggested that there is, in this case, an implied contract, on the part of the defendant, to pay this money to the plaintiff, and therefore that a court of law ought to entertain this suit; but, under the special circumstances pf this case, I am at a loss to find anything like an implied contract. If this were merely a bill filed for an account, and, upon the balance, a precise sum was found to be due, which might originally have formed the subject of an action at law, a court of law might, perhaps, in that case, lend its aid to enforce such á decree. * * * * It appears to me that the whole of this demand for the balance of interest and costs: arises out of this decree of the court of equity, and that it had no foundation prior to that decree. Now I cannot say that a. man, compelled by a court of equity, against his will, to pay a sum of money, impliedly agrees to pay the money. There certainly is not any express contract.”
    Bayley, J. “ The foundation of the suit in equity, in this-case, seems to have been an equitable obligation on the part of the defendant, to pay the money. This suit, if it can be-maintained at all, must be founded on a legal obligation to pay. The decree in equity merely ascertains that the defendant is-under an equitable obligation to pay — it does not go further and show that there is any legal obligation. * * * * It seems to me that, in this case, the decree, founded only upon an equitable obligation, does not furnish any foundation for an action at, law.”
    Holroyd, J. “ I am of opinion that this action, is not main-tamable. The decree does not affect to decide what was actu ally due, in point of law;, on the balance of an account, but it merely directs what is to be paid on an equitable consideration. It is said, however, that the law will, in such a case, imply a promise to pay. In the case of judgments of inferior courts, and courts not of record, where the law implies a promise to pay, it is to pay a legal debt. Wherever, there is a debt at law, the court will presume that the party promises to do that which the law requires. When the debt is founded upon equitable considerations alone, it may be enforced by the authority of the court which ordered it to be paid. The law, in such a case, does not imply a promise. There is no instance of an action brought on a rule of court for payment of money. The mode of enforcing such an order is by attachment for contempt in not obeying the order of the court. * * * * Admitting, however, that an action might be maintained on a rule of court, made with the consent of the parties, it by no means follows that an action will lie upon a rule of court, obtained in invitum. Such an order does not constitute a legal debt, which alone the law will imply a promise to pay. This decree ■of the court of equity does not, therefore, constitute such a debt. It must, therefore, be enforced by the court which made it, and is'not the subject of an action at law.”
    Mr. Justice Best fully concurred, and judgment was given for the defendant.
    In Emerson v.. Lashley, (2 H. Bla. 248,) it was decided that no action would lie upon an order of court, pendente lite, for the judgment of costs, even though the court which made the order had no power of attachment to enforce it.

      Fay v. Malcolm, (4 Taunt. 705,) was a case similar to the one last cited.
    Mansfield, C. J. “I never heard of such an action,and the temptation to it arises every day.”
    Heath, J. “ Such an attempt deserves no favor.”
    Chambre, J. “ It is a most mischievous proceeding.”
    Gibhs, J. “ I think it clear the action will not lie.”

      In that case, however, it is but fair to say, the plaintiff had saused the defendant to be arrested.

      Smith v. Whalley, (2 Bos. & P. 482,) was an action upon an agreement between two parties in chancery, which had been made a rule • of court. The judges, stopping counsel, said : “ That, though the general rule was clear that the mere order of another court was not a good ground of action, yet, that in the present instance, the defendants had, by the terms of their agreement, raised a sufficient ground of assumpsit against themselves.”

      Thrall v. Waller, (13 Verm. Rep. 231,) it was decided that an action would lie upon a decree adjusting the accounts of partners.
    Without further argument or citations, I assume Mr. Justice Bayley’s doctrine. Where the decree is a mere adjustment of ■.egal demands, (as upon bills for an account and the like,) an action of debt may be sustained; but where the decree is for the payment of money upon equitable considerations, (arising out of the performance and rescisión of contracts and the like,) no action at law can be brought. The remedy is by bill to enforce the decree.

      Henry Starr, for defendant.
    The statement in the assignment of errors, that the decree cannot be enforced except in the court which rendered it, is designed, I suppose, to bring up the question, whether an action of debt can be maintained on a decree in chancery to pay a sum of money. Whatever may have been once thought or said of this question, I take it to be now well settled that it can, where no act is decreed to be done but to pay money.'
    I can imagine no substantial objection to it. In Ohio, such a decree has “ the same force, operation and effect as a judg ment at law.” Swan’s Stat. 708, sec. 37.
    Whatever may be the remedy on this decree in Kentucky, I suggest whether the remedy in Ohio is not to be governed by the lex fori. Story on Oonf. of Laws, sec. 556.
    But it is very apparent that an action of debt could be sus tained upon it in Kentucky, even if it had been rendered in Ohio, and if sustainable in Kentucky, certainly in Ohio. The case of Williams v. Preston, (3 J. J. Marsh. Rep. 600,) was debt on a decree rendered in Virginia.
    The Chief Justice, in remarking on the question, whether an action of debt is maintainable on a decree in chancery, says : “ There has been a time when the common law judge would not have sustained an action of debt on a decree — it is not so now. A judgment is but record evidence of a debt. A decree is also record evidence of the existence of a debt, and an action of debt may be maintained as well on the one as on the other; because each is equally the evidence of a debt, and, therefore, upon principle, should be equally the foundation of the same action.”
    A decree is equal to a judgment at law. 3 Swanston 576.
    In Alabama it has been decided that an action of debt is maintainable, on a decree in chancery, in another state, for the payment of money. 2 Stew. & Porter’s Rep. 441; 3 Caine’s Rep. 22; 3 Eairf. 94.
    Considering the question as settled upon principle, notwithstanding the case in 2 Blackford 31, I have no more to say. There can be no doubt, as I conceive, of the conclusiveness of the decree as to Moore & Green; they appeared and answered. 3 Desau’s 206; 4 Wash. C. C. Rep. 597; 6 Ohio Rep. 528; 8 Do. 241; 4 John. Chy. 737; 7 Do. 286.
   Spalding, J.

The action is that of debt upon a record. The plea says there is no such record. The record is offered in evidence, and objections are raised to its validity, which we will proceed to consider.

It is claimed that the court in Kentucky had no jurisdiction; and, consequently, that the decree is void and cannot be en forced.

The bill filed in the Louisville court makes a clear cáse for the interposition of a court of chancery, if jurisdiction be conceded. It seeks to rescind a contract for the purchase of land, entered into by the complainant with the defendants Moore & Green, and to recover back the money paid, and enjoin ■Clark from collecting certain notes assigned to him by Moore & Green, for the reason that, the vendors are unable to make to the purchaser a title to the land.

The court decreed a rescisión of the contract between Adie, Moore & Green; and that Moore & Green pay Adie back $1190; and enjoined Clark from collecting the notes assigned' to him, which formed a part of those given for the land.

The land lay in Indiana, and Moore & Green, it is said, were citizens of Cincinnati.

It may be that at the time the suit was instituted in the Louisville court, the defendants Moore & Green, could have interposed a plea to the jurisdiction, which would have been •available; but they saw fit to waive any objections of that sort, .and did, in fact, file their joint answer to the bill. They chose to contest the case upon its merits, and by voluntarily making themselves parties, are bound by the decree, until it be reviewed and reversed, or impeached for fraud.

There is another objection taken to the record, which we regard as rather specious than solid, and it is this:

The court decreed that the defendants should pay the costs of suit, without specifying the amount in the decree. The true sum appears, however, from the clerk’s certificate, and we are disposed to recognize that as sufficient.

The real defendants who caused the litigation, were Moore & Green, who sold the land and failed to make title. The ■defendant Clark was made so barely for the purpose of enjoining him from collecting the notes, which he held by the assign ment of Moore & Green, against the complainant. He ought not to pay costs, -and it is not reasonable to suppose that the ■court so intended.

We now approach the real question in the case, and feel dis posed to treat it with respect, inasmuch as it has called forth conflicting opinions from eminent jurists, both in England and the United States.

Can an action of debt be maintained on a decree in chancery, for the payment of money ?

Formerly the current of authorities in England was opposed to the doctrine. And this opposition, it is said, sprung from the jealousy with which the common law judges regarded the innovations of the chancellor upon their practice and jurisdiction.

We are not, however, without adjudged cases in favor of the proposition, even in England. In Sadler v. Robbins, (1 Camp. 253,) which was an action on a decree of the high court of chancery, in the island of Jamaica, Lord EUenborough said: “ Had the decree been perfected, I would have given effect to it as well as to a judgment at common law.”

It appeared that the decree had not been made up so that it could be ascertained how much was actually due.

In Henly v. Soper, (8 Barn. & Cresw. 16,) which was debt on a decree in a colonial court, Lord Tenterden,' C. J., said : “ There is a great difference between the decree of a colonial court, and a court of equity in this country. The colonial court cannot enforce its decrees here — a court of equity in this country may; and, therefore, in the latter case there is no occasion for the interference of a court of law — in the former, there is, to prevent a failure of justice. In the case of Sadler v. Robbins, the sum due on the decree was left indefinite, but Lord EUenborough said, that had the decree been perfected, he “ would have given effect to it as well as to a judgment at common law.”

Holroyd, J., said: “ But for the case before Lord EUenborough, I should have entertained some doubts upon the present question. That, however, is an authority in favor of an action upon the decree of a foreign court of equity, if duly perfected.” The other judges of the king’s bench concurred, and the action was sustained.

In Post and La Rue v. Neafie, 3 Caine’s 22, the supreme court of New York decided, after full consideration, that debt will lie on a decree of a court of chancery in a sister state, if it be simply for the payment of a sum of money by the defendant, without any acts to be done by the plaintiff.

The same principle-is recognized in Dubois v. Dubois, 6 Cowen 494.

The supreme court of Pennsylvania has decided that an action at law is maintainable, in that state, on a decree of a court of equity in Tennessee, for the payment of money. Evans v. Tatem, 9 Serg. & Rawle 252. Chief Justice Tilghman, in the conclusion of his opinion, says: “ In Pennsylvania, the courts should be extremely cautious in establishing the principle that an action will not lie for a sum of money decreed to be paid by courts of equity in other states. Yery urgent cases may arise, where crying injustice would be done, if relief were denied.”

Howard v. Howard, 15 Mass. 196, was a debt on a decree of divorce ordering the defendant to pay alimony. On demurrer to the declaration, the defendant contended that debt would not lie, there being no judgment according to the course of the common law. The court say, “ There seems to be no reason why debt should not lie. The debt is certain, and it is proved by record ; and the decree is, in effect, as much a judgment as if rendered on the common law side of the court.”

In McKein v. Odorn, 3 Fairfield 94, the supreme court of Maine decide that “ an action of debt will lie as well on a decree, of a court of chancery, in another state, for the payment of money only, as on a judgment of a court whose proceedings are according to the course of common law.”

But we- have an authority in point directly from the state where the decree we are considering was rendered; and we should be wanting in courtesy, to say nothing of our duty, if we refused the same aid to carry into effect a decree of the chancery court in Kentucky which the courts of that state were accustomed to extend to us and others of her sister states.

In Williams v. Preston, 3 J. J. Marshall’s Rep., the court of Appeals in Kentucky determined that an action of debt would lie on a decree made by the chancery court in Virginia; and Chief Justice Robertson, in delivering the opinion of the court, says with great good sense, “ Although there may have been a time when the common law judge would not have sustained an action of debt on a decree, it is not so now. A judgment is but record evidence of a debt. A decree is also record evidence of the existence of a debt. And an action of debt may be main tained as well on the one as on the other, because each is equal ly the evidence of a debt, and therefore, upon principle, should be equally the foundation of the same action.”

By force of statutory regulations in Ohio, “ a decree of either of our courts, sitting in chancery, is to have the force, operation and effect of a judgment at law.” Swan’s Stat. 708.

If the lex fori, is to govern the case we are considering, there will be no room for doubt. But we are disposed to meet the broad question and to settle it upon principle.

We feel the weight of the authorities cited on the negative of the question by the learned counsel for defendant, especially those of 2 Blackford and 8 Wheaton, hut we are unanimously of opinion that sound policy as well as safe precedent calls upon us to recognize as a rule of practice in Ohio, that an action ■of debt may be sustained in our courts upon a decree for the payment of money rendered in a court of chancery in a sister estate. And unless the contrary be made to appear, we will presume that every such decree is regarded in the state where it may have been rendered as having the force and effect of a judgment at law.

The judgment of the supreme court for Hamilton county is affirmed.


author: Avert, J.

text:
    Alfred Kelley v. Thomas Few.
    'Where the payee of a bill of exchange brings a suit against the two drawers, one of whom is served with process, the writ as to the other being returned “ not found,” the defendant at the trial may give parol evidence to show that he and the plaintiff, by a prior agreement between themselves, Were, when they severally drew and indorsed the bill, joint securities for the accommodation of the other drawer, and by such proof defeat the action, if he has paid, upon the bill an amount equal to that paid by the plaintiff.
    This is a writ of error to the Supreme Court for Muskingum county.
    The action before the court of common pleas was assumpsit, on a bill of exchange, which had been drawn by the defendant Kelley and Edmund H. Rix, made payable to Eew, the plaintiff.
    The plea of the defendant was the general issue non-assumpsit, to which was attached a notice setting out that the bill was drawn for the sole benefit of Rix; that Rix procured the signatures of Eew and Kelley to the bill for the purpose of securing payment of the same; that the drawer and payee were, and so understood it, at the time when the bill was drawn, joint securities thereon ; that .the bill was to be and was discounted with such understanding of the parties, and the money paid tor the use of Rix; that Eew, well knowing the conditions of the bill,' afterwards when it was protested for non-payment, united with Kelley in giving a judgment note for the amount due on the bill, to Horatio N. Kearney, the holder thereof. Kelley became the drawer and Few the indorser of the bill, as appears by the bill of exceptions, at the instance of Rix and for his accommodation. Rix applied to Kearney to discount the bill for his sole benefit, and received himself the whole of the proceeds. It was the understanding of Eew and Kelley when the bill was drawn and indorsed, that they were joint securities for the accommodation of Rix, though there was no written evidence of such understanding at that time, other than the bill itself. Upon' this evidence, the court of common pleas gave judgment for the defendant, and the supreme court reversed, that judgment. The present writ of error is prosecuted to reverse the judgment, of the supreme court.

      O. W. Searle, and D. Peek, for plaintiff in error.

      A. Harper, and O. O. Qonvers, for defendant.
   Avert, J.

The supreme court upon the circuit looked' upon the contract of the drawer and indorser of a bill of exchange as settled by the mercantile law, and as taking a. definite form, and bearing obligatory upon each party at the time of putting his name upon the. instrument. They applied to the case the rule, that parol evidence is inadmissible to control or alter such contract; and th.at a private agreement or understanding is at an end when the contract between the parties is reduced to writing. At an early day, by a decision-made in this court, in the case of Douglass v. Waddle, 1 Ohio Rep. 413, a principle was sanctioned which changed the commercial rule as to accomodation notes; and held, that the parties putting their names upon such paper, for the ben efit of the person obtaining the money, were joint securities-only, and could recover from each other only upon the principles applicable to that relation. But upon a more recent occasion, in the case of Williams v. Bosson & Brother, 11 Ohio Rep. 62, the court refused to extend the rule to another species of commercial paper; and then decided, that as to bills of exchange, the indorsers are not joint securities, but are separately liable in the order of their becoming parties upon the instrument. It is not intended to question the authority of this last decision. The payee of a bill of exchange has doubtless shown a case for recovery, against the drawer, when he has given proof of the drawing of the bill, the presentment at maturity for payment, the non-payment and notice to the-drawer. But will the defendant be considered as attempting, by the introduction of parol evidence, to change the terms of a written contract, or a contract implied by the law, when he-sets up a prior verbal agreement between the parties to become-joint sureties upon the bill, and offers to show that their names' were put upon the bill according to such agreement? The court has decided at the present term, in the case of The Ohio Life Insurance and Trust Company v. Thomas McCague, that the act for the relief of sureties and bail in certain cases, will be construed to 'extend to the parties to a bill of exchange, and that the holder, on receiving from a surety whose name is on the bill, the notice prescribed by the statute, must proceed against the principal, or he will forfeit his rights against the surety. For such a purpose, parol evidence is admitted, to-prove who is principal and who is security. So in the present case, as between the parties themselves to an arrangement,, parol proof may be given that they agreed to become joint securities for another, and by means of a bill of exchange, to raise money for his use. And if by such means the money is procured, the parties in a subsequent suit between themselves,, touching the same matter, may sét up the agreement, in whatever shape their names may appear upon the bill. If the maker of a note, without receiving a consideration, deliver it to the payee, to enable him to borrow money for his own use, he can, without doubt, set up that fact as a defense, when afterwards sued on the note by the payee. The defendant and-plaintiff having agreed as joint securities, by means of a bill of exchange, to enable Rix to borrow money, are bound as between themselves to divide the loss occasioned by the failure of the principal, and the defendant, having paid his half of the loss, is no further liable, although his name appears upon the bill as drawer, while that of the plaintiff is on the bill only as indorser. The supreme court of Muskingum county having decided otherwise, their judgment is reversed.


text:
    James Hampson’s Adm’r v. Catharine Sumner et al.
    Where an individual conveys property for the purpose of defrauding creditors, and dies, a court of equity may interpose at the suit of a creditor, to set aside the conveyance, especially if the fraudulent grantee has been appointed administrator of the estate.
    In a bill to enforce or execute a decree, the court will not, as a general rule, • change the original decree, the object of such proceeding being, not to ascertain the rights of the parties, but to enforce such rights as have been already ascertained.
    This is a bill in chancery, reserved in Fairfield county.
    The case was commenced in the court of common pleas, where the bill was dismissed, and comes before this court by appeal. The facts are fully stated in the opinion of the court.

      Swayne Bates, and John T. Brazee, for complainant.

      B. Stanbery (attorney general), and B. B. Banter, for de» fendants.
   Hitchcock, C. J.

This case is one somewhat singular in its aspects. The bill was filed by the complainant against David Wilson and others, on the 26th day of February, 1845. In this bill Wilson is made defendant, in his character of administrator of the estate of William Sumner, deceased; and the other defendants are the widow of said Sumner, and others, to whom it is claimed that he had fraudulently conveyed, or caused to be conveyed, certain property in said bill specified.

The supplemental and amendatory bill was filed on the 30th of March of the same year, by which Hedges and Miller, executors of William Williamson, deceased, are made defendants. There does not seem to be any great necessity for connecting the parties defendant as is attempted to be done in one case; still, in some aspects of the case, it may, perhaps, be well enough done. In considering the matters in controversy, however, it will be most convenient to look, first, to the case as made in the original bill, and then to the case made in the amended and supplemental bill. For most purposes, at any rate, the record shows two distinct and separate cases, and. causes of complaint.

The original bill sets forth, that in the year 1828, a bill in chancery was filed in the court of common pleas of Fairfield county, to settle up the partnership concern's of James Hampson and John Williamson, who had been doing business underlie name and style of Williamson & Hampson; and which partnership was dissolved by the death of Williamson, in 1820. Co this bill, Wm. Sumner was a party, but died during the pendency of the suit, and the defendant David Wilson, executor of said Sumner, was made party defendant. Said chancery proceeding was continued in the court of common pleas and supreme court, to which latter court it was taken by appeal,, until the November term of the same court, 1844, when a decree was rendered in favor of complainant, as administrator of James Hampson, against Wilson, executor of Sumner, for the-sum of $8,268.35 ; which decree is in full force.

It is further stated in the bill, that Sumner died in 1838, leaving a will, which was duly proved of the 17th day of October of the same year, and letters testamentary granted to the lefendant Wilson. By his will Sumner made his wife, Catharine Sumner, his sole devisee and legatee. That the matters and things to which said decree against Wilson relates, and-upon which the same is founded, accrued before the 1st of November, 1840.

The amount of the assets of the estate of Sumner, as returned by his executor, is next referred to; and it is there-stated that the said Sumner, for several years before his death, was seized in fee of the northwest quarter of section 16, township 15, range 19, in Fairfield county, containing 174 acres; also of in-lot No. 13, in square No. 14, in Lancaster, and of the undivided one-third part of certain 100 acre lots in Licking, .county. That the said Sumner, on the 30th of May, 1838^ for the purpose of defrauding his creditors, conveyed his inter•est in the 100 acre lots to his sisters, Clarissa Sumner and Lucy Due.

Here it is proper to say, that so far as relates to the convey.ance of these 100 acre lots, there is now no controversy, it being admitted that there was nothing fraudulent in the trans.action.

It is further stated, that the said Sumner, for the like purpose of defrauding his creditors, on the 21st of May, 1838, without any consideration, conveyed the west half of the afore.said named quarter section to the defendant, David Wilson, in ■trust, for the sole and separate use and benefit of his wife, Catharine Sumner, and to her heirs, etc., subject to her disposition, either by will or otherwise.

It is further stated, that the said Catharine, as sole devisee and legatee of said Sumner, sold said lot No. 13, in Lancaster, •for one thousand dollars, which consideration was paid by the purchaser, David Sifferd; that the defendant Wilson, immedi■ately upon his appointment as executor, took possession of the said one-half quarter of section 16, and has ever since received the rents and profits, of the value of $250 annually; that ■Catharine Sumner is entitled to dower in the before named real ■estate.

The prayer of the bill is, that the deed to Wilson be declared fraudulent and void; that the dower interest of the defendant ■Catharine, in the half of said quarter of section 16, and of the fund produced by the sale of lot No. 13, be assigned to her; that the said land be sold; and the proceeds applied to the payment of the debts due from Sumner’s estate; that the said Wilson be decreed to account for all moneys which have come ■to his hands, and to make final settlement of the estate; that the said Catharine be decreed to account for the said one thousand dollars, the consideration of said lot No. 13, together with such other sums as have come to her hands, in the shape •of rents, as devisee of the said William Sumner: hence, that -all the funds belonging to, or arising out of the estate of William Sumner, be applied to the payment and satisfaction of his debts.

This bill was answered by David Wilson and Clarissa Sumner, and the deposition of one witness has been taken. The controversy in the case, is as to the half quarter section of land conveyed by Sumner to Wilson, in trust for Mrs. Sumner, and the avails of lot No. 13, in Lancaster. She claims in her answer, that the half quarter was purchased with money received ■from time to time, by her late husband, from her father’s estate; and, further, that lot No. 13, in Lancaster, was not more than sufficient to compensate her for money thus by him received. If, in this particular, the answer was responsive to the bill, it might be necessary for the complainant to contradict.it by testimony. But it is not responsive, nor are its allegations in any particular supported by evidence. Upon this point there is not ■one particle of testimony. The fact is apparent, that at the time Sumner conveyed the half quarter to Wilson, he was involved, much beyond his ability to pay. This is manifest from the whole case. That conveyance was without'consideration. The property cannot, in this way, be withdrawn from the creditors. The avails of this land must be appropriated to the payment of the debts of Sumner.

In respect to lot No. 13, in Lancaster, the title was in Sumner at the time of his death. He devised it to his wife. She must take it, subject to the incumbrance of his debts. The most that she can claim is, that, inasmuch as she has sold the property, that sale shall be considered as passing the title, and she held to account for the consideration received, deducting therefrom as much as she would be entitled to receive by way of dower.

We have had much difficulty, however, upon the question, whether this was a proper case for the interference of a court cf chancery. The case made, is not such as would justify us in taking the settlement of the estate of Sumner from the probate court. Possibly, the object which the complainants have in view, might all have been attained in the probate court. That court have power to compel an administrator to perform his duty. If he does not, he is liable upon his bond. Besides, if an administrator, or an executor, misconducts, he may be removed, and another may be appointed in his place. But upon the whole, as in this case there has been a fraudulent conveyance of property, and the administrator is the trustee constituted by that conveyance, and as there might be doubt whether the court of probate would not be compelled, notwithstanding the conveyance of the devisee, to order the re-sale of the lot in Lancaster, we have concluded to take jurisdiction, and a decree, upon this branch of the ease, may be entered for com plainant.

The amended and supplementary bill sets forth that in 1805, James Hampson and John Williamson entered into partnership, describes the nature of that partnership, and that it continued until June, 1820, when it was dissolved by the death of Williamson. That Williamson, at the tim€L.of his death, had no property except some real estate, which was not partnership property. That William Williamson and William Sumner were appointed administrators, of the estate of John Williamson, and executed a joint bond. That they took possession of the property in the possession of John Williamson at the time of his death, both the partnership property and his own individual property. Had the personal property and choses in action inventoried, appraised, etc. That they continued to manage and dispose of the property, both partnership and individual, until 1838, when Sumner died, and when a receiver was appointed by the court, to receive and manage the partnership property.

The bill in chancery for the settlement of the partnership concern, referred to in the original bill, is there referred to. The bill in that case was filed in 1828, or 1829, by William Williamson and William Sumner, against Hampson, and in the progress of the case, the said administrators accounted with Hampson for the partnership funds which they had received.

The cause was continued from term to term, until the No vember term of the supreme court, 1844. In the meantime, Hampson had died, and the complainant was appointed his administrator. Sumner had died, and David Wilson, his executor, was made party.'

At the November term of the supreme court, 1843, it was-determined by decree of the court, that the partnership funds, which had come into the hands of the said Williamson and Sumner, and for which, as between themselves, the said Williamson ought to account, had been by him applied to the payment of partnership debts.

At the November term of the same court, 1844, it was, by alike decree, ascertained that there was due from Wm. Sumner $8,268.35, for which sum a final decree was entered against. Wilson, executor of Sumner, to be made from Sumner’s estate. In this decree, Williamson is not named.

It is next alleged, that since' the rendition of the decree, Williamson has died, and the defendants Hedges and Miller have been appointed his administrators. That the estate of Sumner is insolvent, and unable to respond to the decree.

The bill next goes on to state in substance the following facts : At the November term of the supreme court, 1842, William. Williamson recovered a judgment against Hampson for $2346.-06, and costs. The ground of recovery was, that Williamson indorsed a note for Hampson to the United States Bank, which, he was compelled to pay, and brought this suit to recover the amount thus paid for Hampson. It is charged that the loan*, thus effected, was to meet partnership debts; that it was made under a distinct agreement between Williamson and Hampson, that it should be paid out of partnership effects, in the hands-of Williamson and Sumner, which was not done. That the-administrators of Williamson are threatening to collect the judgment, notwithstanding the large amount found to be due by the decree aforesaid, on account of said partnership. The complainant then insists that the estate of William Williamson is equally liable, in equity, with the estate of Sumner, for the balance so established, or, at any rate, to make up the bal anee which shall remain after the estate of Sumner is exhaust-, ■ed, and it is said that such balance will far exceed the amount ■of the judgment. )£p ,-t

The prayer of the bill is, that the defendants Hedges and Miller, may be enjoined from proceeding to collect said judgment until the final hearing of the cause, and that on the final hearing, they may be decreed and ordered to execute the former decree, and to pay to the complainant such part of the said §8268:35 as the estate of Sumner will not pay, deducting therefrom the amount of the judgment.

This bill was answered on the 25th August, 1846, by the •defendants Hedges and Miller.

They know nothing personally of the matters charged in the bill, but have been informed of the existence of the partnership of Hampson & Williamson; of its dissolution by the death •of Williamson; of the appointment of William Williamson and William Sumner, as his administrators, but whether they gave a joint or joint and several bond, the defendants “have no knowledge, information or belief,” and if it be material, they •call for proof. Whether Hampson had a right to the possession ■of the partnership property, they submit to the court as a question of law, but say they have been informed and believe that the letters of administration were granted at the request of Hampson, and the property of the partnership put into theii hands with his assent.

They admit the recovery of the judgment. As to the allegation, that the consideration of said judgment was a loan made for the purpose of paying partnership debts, and was to be paid from partnership effects, they say they have no personal knowledge, but have been informed that this matter was •set up in defense in the suit at law, which was overruled by the court. That after the judgment, Hampson, on the 16th January, 1843, filed his bill in the supreme court of Fairfield ■county, sitting in chancery, against William Williamson, alleg ing, among other things, the matters and things in the bill now stated, and praying an injunction. Williamson answered this bill on the 23d September, 1843, denying the allegations there in contained, or that he had any partnership funds for which he had not accounted. At the'November term, 1845, of the supreme court, the injunction was dissolved, and the bill dismissed. Defendants rely upon this decree of dismissal, the same as if pleaded in bar.

As to so much of said bill as seeks to render the estate of William Williamson liable for the default of said William Sumner, and to set off said claim against the judgment, the defendants say that they are informed that such chancery proceedings were had as are stated in the bill, but that the same are therein very imperfectly stated, and then proceed to set forth those proceedings at great length, up to the time of the final decree, which decree they rely upon as a bar to this suit, the same as if it had been pleaded.

They further deny, for reasons stated in the answer, that if there had been no such decree, the estate of William Williamson could be made liable for the default of William Sumner.

The primary object of this bill seems to be, to enjoin a judgment recovered by William Williamson against James Hampson, in the supreme court in 1842. Most of the matters which are alleged as cause for injunction, might have been set up by way of defense in the suit at law, and as they would have' constituted a good defense, if Hampson failed to set them up, the fault was his, and his representatives cannot go into chancery, and urge the same matters as ground for injunction. If they were set up at law, as is stated in the answer, and the question with respect to the validity of the defense was there settled, this would be an objection to the interference of a court of chancery.

It seems, however, that, in 1843, and during the life of Hampson, a bill was filed to enjoin this judgment, in which substantially the same matters were set up — with, perhaps, one exception — which are now stated, to induce the interference of this court to enjoin the judgment; which bill was an swered, and the cause continued until the November term of the court, 1845, when, upon hearing, the bill was dismissed. About three months thereafter, the present bill was filed. I am mistaken in saying the present bill was filed. It was not this bill, but one to which this is a supplement. The original bill has no reference to this’judgment. I believe the name of William Williamson does not appear in it. On the third of May, 1845, the supplemental bill is filed, reiterating the same matters which had been set up in the bill which had been dismissed in 1845, and, in addition thereto, that the estate of Sumner was insolvent, and that the complainant must lose a part of his decree against 'Sumner’s estate, unless Williamson’s estate shall be compelled to satisfy it; and it is claimed that there is a strong equity that Williamson’s estate should be made liable for Sumner’s default. The desire of the complainant is, that the collection of the judgment against Hampson, which has been already delayed for seven years, shall be still delayed, until he can ascertain what amount can be made from Sumner’s estate, and then, that Williamson’s estate shall be compelled to make up the deficit, deducting therefrom the amount of the judgment. The object, say counsel, and so says the bill, is, to execute the decree against Wilson, the executor of Sumner.

It is proper, therefore, to refer more particularly to the proceedings, which resulted in the decree against Wilson. A partnership had existed between Hampson and John William son, which was dissolved by the death of the latter, in 1820. By the death of Williamson, Hampson had,, as surviving partner, a right to the control of the property of the partnership; but it does not appear that he exercised, or attempted to exercise, this right. Upon the death of Williamson, William Sumner and William Williamson were appointed his administrators. They had, legally, no concern with the partnership property. But, according to the showing of the bill, the partnership property and individual property were so mingled, that it was difficult to make a distinction. Hampson, the surviving partner, so far as we know, left the thing to take its course. He did not assert his claim to the partnership property, but permitted the same to go into the hands and to be disposed of by the administrators. As before remarked, it was his right, nay, I may say, it was his duty to see to, and to take care of this property. It was not the property to administer upon which the administrators were appointed.

Things remained in this situation until 1828 or 1829, when the administrators, finding it impossible to settle the estate of Williamson, without having the partnership concern settled, filed a bill against Hampson to effect that object. This bill was answered by Hampson, I think, in 1833, and he afterwards filed a cross bill. The case was disposed of in the court of common pleas, and appealed to the supreme court. It continued in the supreme court until 1844. During its pendency, Sumner, one of the original complainants, died, Hampson, the defendant, died, and if Williamson, the other complainant, did not die before the final decree, he certainly did soon afterwards. It is unnecessary to state the numerous orders and interlocutory decrees. The case was eventually referred to Joseph Howard, who made a very voluminous report, upon which the decree in the case is based.

At the November term, 1843, of the supreme court, that court, acting upon the report of Howard, the special master, found and decreed, in substance, that the said William Williamson had fully paid out and accounted for all moneys and assets which had at any time come to his hands, in his said capacity of administrator or otherwise, arising out of the said partnership assets or the individual assets of the said John Williamson. The court also, at the same term, found that there was due from said Sumner, $8268.35, arising out of the assets of said partnership, and the question, whether a decree should pass against Williamson for the deficit of Sumner, was reserved to the next term of the court, to which term the cause was continued.

At the next term of the court, a decree was entered against Wilson, executor of Sumner, for the amount of the aforesaid deficit, with interest from the November term preceding, but no decree was entered against Williamson. And thus the case was finally disposed of.

Now it is claimed that the decree should have been both against Williamson and Sumner, or at least, if against Sumner in the first instance, that it should have been so framed that Williamsom should be liable, provided Sumner’s estate should fail in making payment. And this, it is said, would be executing the decree. It seems to the court it would be making a new decree, a decree which the court, hearing the whole case, seems to have thought was not warranted by the circumstances disclosed.

But it is said it would be equitable, because these administrators signed a joint bond. If such were the fact, and we do not know whether it was so or not, I do not see how it could affect the equity of the case. Possibly it might affect the law of the case. There certainly can be no very strong equity in compelling one trustee who has faithfully accounted to the last cent, to answer for the default of his co-trustee, especially if it does not appear that he who has accounted, has been guilty of any neglect or misconduct.

Judge Story, in his Treatise upon Equity Pleadings, (sec. 429,) in speaking of bills to carry decrees into execution, says such bills may be sustained, “ where, from neglect of parties, or some other cause, it becomes impossible' to carry a decree into execution, without the further decree of the court. This happens generally where parties having neglected to proceed upon the decree, their rights under it become so embarrassed, by a variety of subsequent events, that it is necessary to have the decree of the court, to settle and ascertain them.”

The only embarrassment in the case under consideration, is, that the individual against whom the decree was rendered, is unable to pay. This embarrassment, when the decree was originally entered, was precisely the same as it is now. There lias been no change of circumstances.

In the next section he says: “ The court in these cases, in general ' only enforces, it does' not vary, the decree. Bu under the circumstances it has sometimes considered the original directions, and varied them in case of mistake.”

In the case now under consideration, there is, so far as we can see, no mistake. The court decreed precisely what it intended to decree. At least there is nothing from which we can draw any other inference. We are not prepared to say that there was any thing inequitable in the decree, and feel no disposition to change it. Nor do we believe, that in the present case -we have power to do it.

So far as the answer and supplemental bill is concerned, the injunction is dissolved, and the bill dismissed at complainant’s costs.


text:
    The Portage County Mutual Insurance Company v. Joseph S. Stukey.
    Duller the charter of the Portage County Mutual Insurance Company, a suit against the company by one of its members, can only be brought in Portage oounty.
    This is a writ of error to the court of Common Pleas of Hocking county.
    The action below was brought upon a policy of insurance issued by the Portage County Mutual Insurance Company to the defendant in error, insuring a store of goods to the amount of $1,500.
    The store insured was situated, and the insurance effected, in Hocking county.

      In February, 1848, the goods were destroyed by fire. Stu-key notified the company of his loss; but they have taken no steps in the matter to ascertain its extent, or in any manner t<? pass upon his claim. On the 19th of September, 1848, Stu-key commenced suit in the court of common pleas of Hocking county, and issued a summons to the sheriff of Summit county, where the company has its principal office, which was served on the Secretary of the company. That part of Summit county where the office -is situated, at the time the company was incorporated, was included within the bounds of Portage county. A summons was also issued and served on the agent of the company in Hocking county.
    After the return of the writ, the company moved to dismiss the cause for want of jurisdiction, on the ground that the suit could only be brought in Portage county; but the court overruled the motion.
    The defendant then filed a plea to the jurisdiction, alleging the same cause as in the motion, to which the plaintiff replied. The court found the issue for the plaintiff.
    The defendants failing further to plead, judgment was entered, and at their request a jury was called to assess' the damages, who found for the plaintiff damages to the amount of $1400, on which a judgment was entered. The .defendant excepted to the ruling of the court, sustaining its jurisdiction; .and for that alleged error prosecutes this writ.

      Hitoheoch, Willson Wade, ■ Whitman Sp Medill, and Hewitt Browne, for plaintiff in error.

      H. H. Hunter, for defendant.
   Caldwell, J.

The simple point raised in this case is ;ne of jurisdiction. Could the plaintiff in the suit below bring his action in the court of common pleas of Hocking county; or whether he is confined to the court of common pleas of Portage county.

It is claimed on the part of the plaintiff in the court below, that the act of 1845, (45th vol. Ohio Laws, page 17,) which provides that suits on policies of insurance may be brought in the county where the contract is made, gives to the court of common pleas of Hocking county, jurisdiction in this case, the insurance having been effected in that county. That statute, however, contains this provision: “ That the provisions of this act shall not be construed to extend to contracts of insurance, er agreements for such contracts, made or entered into by any ■insurance company of this state, whose charter prescribes the ■venue where alone suits against such company, on any such nontracts or agreements, may be brought.” •

It will be seen, then, that the whole question must turn on ■the provisions of the charter of the company. If, as contended by the company, the charter limits the jurisdiction to the common pleas of Portage county, it falls within the provision of ■the act of 1845, and is not affected by it. If the charter does not contain such limitation, then the statute of 1845 will apply, and the suit is properly brought in Hocking county.

The 7th section of the charter of the Portage Mutual Insurance Company (30th vol. Ohio Laws, page 259,) provides, “ that in case of any loss or damage by fire happening to any member, upon property insured in and with said company, the said member shall give notice thereof, in writing, to the directors, or some one of them, or to the secretary of said company, within thirty days from the time such- loss or damage may have happened; and the directors, upon a view of the same, or in such other way as they may deem proper, shall ascertain and determine the amount of said loss or damage ; and if the party suffering is not satisfied with the determination of the directors, the question may be submitted to referees, or the said party may bring an action against said company, for loss or damage at themext court, to be held in and for the county of Portage, unless said court shall be holden within sixty days after said determination; but if holden within that time, at the next court liolden in said county thereafter; and if upon trial of said action, a greater sum shall be recovered than the amount determined upon by the directors, the party suffering shall have-judgment therefor against said company, with interest thereon from the time said loss or damage happened, and costs of suit;. but if no more shall be recovered than the amount aforesaid,, the said party shall become non-suit, and the said company shall recover costs; provided, however, that the judgment last mentioned shall in no wise affect the claim of said suffering party to the amount of loss or damage, as determined by the-directors aforesaid; and provided also, that execution shall not issue on any judgment against said company until after the expiration of three months from the rendition thereof.”

Now it is contended, on the part of the plaintiff below, that the present case differs from those provided for in this section that the cases here provided for, where the party is limited in bringing suit in Portage county, are those where the directors have in some way acted in the matter; that the declaration in this case sets forth, that the company have made no determination of the loss, nor made a.n offer to pay any sum whatever. The charter might perhaps bear such a construction,, still we think the intention of the legislature was, in all cases where the party suffering the loss might find it necessary to bring suit, to limit the venue to Portage county.

This is the only part of the charter that provides for bringing suit against the company; it provides also for the mode in which the company shall determine how much they are bound to pay for any loss that may be sustained by any of the individual members. The responsibility of determining the amount, is entirely'on the directory — the party injured has nothing to do or say in the matter, nor is he in any way bound by it; if he is not satisfied with their determination, he may have the case referred to referees, or he may bring his suit in the court of common pleas of Portage county. It is true this section is taken up principally in providing for fixing the amount of' the loss, and providing a remedy where the party claim ing to have sustained it, may think that the amount awarded by the directors is too low. This may probably be accounted for from the fact that where the company may refuse to pay altogether, the case is simple; the parties are directly at issue. The great question then, is, whether or not the company is liable at all, and the party claiming has to prove, in the ordi • nary way, the whole amount of, his damages.

Now, a defense may' be as meritorious to the whole amount of a claim for loss as to a part of a claim, and we cannot see why the legislature should have required a party, in a case where the directors were willing to pay a part of his claim, to bring suit in Por.tage county, and leave him free from such restriction, when they rejected it entirely. We think, although the charter might bear a more limited construction, that the intention of the legislature was, that where any member of the association, who had suffered a loss, felt himself aggrieved by the action of the company, he should bring his suit in Portage county. The judgment of the court of common pleas will therefore be reversed.