Fraser v. Passage

• Decision Date: 11 November 1886
• Court: Michigan Supreme Court
• Parties: FRASER v. PASSAGE and others.

30 N.W. 334

63 Mich. 551

FRASER v. PASSAGE and others.

Supreme Court of Michigan

November 11, 1886

Appeal from Emmet. In chancery.

Bill in equity to set aside conveyance for fraud. Decree for defendants. Plaintiff appealed. The facts are stated in the opinion.

John G Hill, (Oscar Adams, of counsel,) for defendants.

SHERWOOD J.

The bill in this case was filed by the administrator of Perry Andress, deceased, for the purpose of obtaining a decree declaring certain deeds made by the said Perry Andress, in his life-time, and by said defendants Passage, Andress, and Campbell, void as to the creditors of Perry Andress, and requiring the defendants to convey the same to the complainant, in order that he might sell the same, and thereby satisfy the indebtedness against the said estate. The bill avers that after applying the proceeds of the personal property of the estate to the payment of its debts, there still remains of the claims allowed by the commissioners unpaid, the sum of about $800. And further avers that shortly before his death the said Perry Andress was in possession of the Occidental Hotel property, in the village of Petoskey and was the owner of the same, and that on or about the sixteenth day of November, 1880, he, with his wife, Sarah Andress, conveyed the said hotel property to Christopher D Passage, the consideration stated in the deed being $5,500, and excepted from the operation of the warranty contained in the deed were two mortgages, amounting to the sum of $1,470. The bill further alleges that said conveyance was made by Perry Andress to defraud his creditors; that the grantee knew that fact at the time, and never paid any part of the consideration named. That on or about the fifteenth day of January, 1881, the said Christopher D. Passage conveyed, by warranty deed, the said hotel property, for the nominal sum of $5,500, to the defendant Sarah Andress, wife of said deceased, and that said deed was made with the like intent to cheat and defraud the creditors of the said Perry Andress, and that Mrs. Andress never paid any of the consideration mentioned; that on or about the twenty-eighth day of June, 1881, and after the death of her husband, Sarah Andress conveyed the property, by warranty deed, to the defendant Jacob II. Passage, with the like intent to defraud the creditors of her husband, the consideration in said conveyance being $5,000; that Jacob H. Passage and wife conveyed the property by warranty deed, for the consideration of $5,000, to the defendant Robert Campbell on the twenty-seventh day of December, 1881, and that said deed was made for the purpose and intent to defraud the creditors of Perry Andress; that on or about the thirty-first day of January, 1881, Perry Andress and wife made and executed a mortgage upon said hotel property to J.R. Carpenter, for the sum of $1,500, to secure the payment of a note for the same amount, payable in three years from date, with interest at 10 per cent. The bill further alleges that none of the grantees named in said deeds ever paid any consideration therefor, and that all were made for the purpose of aiding Perry Andress to cheat and defraud his creditors; and that all the grantees had knowledge of that fact; and that the indebtedness against the estate was incurred before any of the conveyances were made. It is further averred that, a short time before the death of Perry, he owned a large amount of personal property in and about the hotel, amounting in value to about $3,000, and that, with the intent to cheat and defraud his creditors, he executed and delivered, without any consideration therefor, a bill of sale of all of said property to the said Jacob H. Passage; that the defendant Elliot is in possession of the property under a lease of the same, as complainant is informed. The prayer of the bill asks that all the deeds, including that to Christopher D. Passage, may be declared void as against the creditors of Perry Andress.

The defendants filed their joint and several answer. They admit the death of Perry Andress on the eleventh of March, 1881, and that complainant is administrator of his estate, and administration so far as claimed in the bill. They admit the several transfers of the hotel property stated in the bill, but deny that any of them were made with fraudulent intent to defeat the claims of creditors, and aver that all were made upon full, complete, and adequate consideration. The answer also denies, on behalf of Andress and Passage, that complainant ever applied to them, or either of them, for payment of the debts against the Andress estate mentioned in the bill; and prays the benefit of a demurrer.

The cause was heard before Judge RAMSDELL at the Emmet circuit, in chancery, upon pleadings and proofs, and the complainant's bill was dismissed. The administrator appeals.

We think the decree of the circuit judge was right. But two questions are presented for our consideration upon this record. The first is, are all the necessary parties before us? And, second, does the testimony show the conveyance from Perry...