17 D.C. 512 (D.C.D.C. 1888), 10,107, Fecheimer v. Hollander

Docket Nº:In Equity. 10,107.
Citation:17 D.C. 512
Opinion Judge:MR. JUSTICE MERRICK:
Party Name:MARTIN S. FECHEIMER ET AL. v. JUSTUS HOLLANDER ET AL.
Attorney:MR. S. S. HENKLE, for complainant. MR. LEON TOBRINER, for defendant.
Case Date:October 08, 1888
Court:Supreme Court of District of Columbia
 
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Page 512

17 D.C. 512 (D.C.D.C. 1888)

MARTIN S. FECHEIMER ET AL.

v.

JUSTUS HOLLANDER ET AL.

In Equity. No. 10,107.

Supreme Court, District of Columbia.

October 8, 1888

1. A judgment creditor may have relief in equity against an alleged fraudulent debtor who has either fraudulently conveyed his property, or who only possesses an equitable interest therein, and in either case a return of nulla bona is conclusive evidence that the debtor has no other property liable to execution.

2. Where personal property is alleged to have been fraudulently conveyed by the debtor, the judgment creditor is not to be driven to the hazard of giving a bond of indemnity to the marshal or of risking the danger of litigation under the execution with those who claim title under the assignment. It is sufficient to give equity jurisdiction if he shows by a return of nulla bona that there is no other property liable to execution.

APPEAL from a decree sustaining a demurrer to a bill in equity brought by a judgment and general creditor to set aside certain alleged fraudulent conveyances of the debtor's.

THE CASE is stated in the opinion.

MR. S. S. HENKLE, for complainant.

MR. LEON TOBRINER, for defendant.

OPINION

MR. JUSTICE MERRICK:

This is a bill filed by creditors for the purpose of setting aside an alleged fraudulent assignment by the debtor to an assignee for the benefit of creditors, and charging that several of the preferences are fraudulent. The bill has divers aspects. In one aspect it is a bill by a judgment creditor, after a return of nulla bona , seeking to charge the estate in the hands of the assignee. In another aspect it is a bill by the same individual for a cause of action arising out of a different transaction, in which he had sold goods to the defendant, and, as he alleges, the defendant was at the time notoriously insolvent and never meant to pay, so that the contract was void on account of the fraud and imposition on him, and he was entitled to reclaim the goods. But inasmuch as the goods, with the title to which he never had parted by, reason of the fraud, had been under the assignment mingled with the other goods in the hands of the assignee, so that they could not be identified and followed, he was entitled in equity to charge the fund with the value of those goods, having no remedy at law, by reason of the fraudulent confusion of the...

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