American Surety Co. of New York v. Conway
| Decision Date | 24 April 1915 |
| Citation | 222 F. 140 |
| Parties | AMERICAN SURETY CO. OF NEW YORK v. CONWAY et al. |
| Court | U.S. District Court — District of New Jersey |
Pitney Hardin & Skinner, of Newark, N.J., for complainant.
McCarter & English, of Newark, N.J., for removing defendants.
The complainant, a resident of the state of New York, claiming to be a judgment creditor of the estate of James Conway deceased, on behalf of itself and other creditors of said James Conway similarly situated, filed its bill in the New Jersey Court of Chancery for the purpose of having certain conveyances of land by the said James Conway declared to be in fraud of such creditors. The defendants who removed the cause into this court, viz., Edward B. Reiley and Bessie A Reiley (his wife), and John F. McGrath and Frances A. McGrath (his wife), reside in the state of Connecticut. The remaining defendants reside in the state of New Jersey.
The bill charges, in substance, and so far as pertinent to the questions presented on this motion, that the said James Conway conveyed six of the twelve therein described tracts of land to his son, William F. Conway; that said William F Conway conveyed three of such tracts to Edward B. Reiley and the remaining three to John F. McGrath, who respectively, each joined by his wife, reconveyed the same to him; that such six tracts with others (also alleged to be affected by such fraud), were afterwards conveyed by said William F. Conway to Isabelle E. McGrath, who thereafter became the wife of the said William F. Conway; and that all said conveyances were in fraud of complainant's rights as a creditor, and to place such lands beyond the reach of the ordinary process of law. The bill also alleges that said James Conway died possessed of 'no real estate the legal title to which stood in' his name; that letters of administration upon his estate were issued to his daughter, Mary L. Conway Mason; that the said James Conway, during his life, and his heirs since his death, have possessed and received the rents, issues, and profits of said lands 'as fully to all intents and purposes as if said pretended conveyances had never been made'; and that complainant had applied to the relatives (by blood and marriage) of said James Conway to pay it his said indebtedness, but that they had refused to do so. The bill prays, in addition to the usual prayers for process, answer, discovery, a sale of the lands for the benefit of complainant, and general relief, that it may be decreed that the said Isabelle E. McGrath Conway hold such tracts of land--
'in trust for the heirs of the said James Conway, subject to the lien of the indebtedness of the said James Conway to your orator, and that the heirs of the said James Conway (William F. Conway, Mary L. Conway Mason, and Helen D. Conway Kelly, son and daughters) are the beneficial owners of said real estate, and that your orator's said lien by reason of the indebtedness of the said James Conway, now deceased, to your orator, may be established as against said lands and premises, and that the said defendants, or some one of them, may be decreed to pay to your orator the full amount due and owing to it on the said judgment, with interest and costs thereon.' The ground of removal is that there exists--
'in the cause a separable controversy between the complainant and the four defendants residents of Connecticut, to which said controversy the remaining defendants were not necessary parties, and which can be wholly determined without their presence.'
The bill does not allege that the defendants who removed the cause were asked to pay the complainant's judgment, nor that they at any time possessed any of said lands, nor that they received any of the profits derived therefrom. With regard to such possession and profits, the allegations of the bill are, as noted, that others than they had such possession and enjoyed such profits, and it is the defendants other than those residing in Connecticut who it is specifically prayed shall render an accounting and pay over such rents and profits. Except for that part of the prayer, viz., 'that the said defendants, or some one of them, may be decreed to pay to your orator the full amount due and owing to it on the said judgment,' there would not be the slightest basis for the claim that as between such defendants and the complainant there is a separable controversy, etc. Such a prayer, while often used in creditors' bills, is serviceable only when predicated upon the proper allegation that the defendants sought to be reached thereby have...
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United States v. Schofield
...or in order to reach the $136,768.33 to be substituted in lieu of the land at the time of settlement. 20 American Surety Co. of New York v. Conway, D.C.D.N.J.1915, 222 F. 140, 142; Allen v. Hauss, D.C.E.D.Mich.1923, 290 F. 253, 254; Dykes v. Little, 8 Cir., 1928, 31 F.2d 742, 744; and cases......
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Steelman v. All Continent Corp.
...without any decree of nullity of the deed as against the bankrupt." The defendants cite as contrary authority American Surety Company of New York v. Conway (D.C.) 222 F. 140, wherein the court held that the administrator of a deceased grantor in a conveyance alleged to be fraudulent was a n......
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Allen v. Hauss
... ... suit. American Surety Co. v. Conway (D.C.) 222 F ... 140; Fuller v. Montague, 59 F ... ...
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Dykes v. Little
...requires a dismissal of the bill. Swan Land & Cattle Co. v. Frank, 148 U. S. 603, 13 S. Ct. 691, 37 L. Ed. 577. See American Surety Co. v. Conway (D. C.) 222 F. 140; 5 Ency. Pl. & Pr. p. 542. The order of dismissal was required on this ground. There is another objection to the bill which le......