Beam v. Bennett

• Decision Date: 22 June 1883
• Citation: 16 N.W. 316,51 Mich. 148
• Court: Michigan Supreme Court
• Parties: BEAM v. BENNETT and others.

16 N.W. 316

51 Mich. 148

BEAM v. BENNETT and others.

Supreme Court of Michigan

June 22, 1883

A bill may be filed for the double purpose of aiding an execution and to reach property not open to execution.

The evidence in this case establishes the fact that defendant executed a deed of his property to his son, with intent to prevent plaintiff from realizing anything in satisfaction and payment of any judgment she might obtain against him in a suit pending at the time of the conveyance; and although such conveyance may not be a fraud on defendant's other creditors, whose claims the son agreed to pay in full, it is a fraud on the rights of plaintiff, and the land should be sold under the mortgage and the balance applied in satisfaction of her judgment.

Where a party, to whom a conveyance of land has been made in fraud of creditors, executes a mortgage to some of those creditors to secure the payment of their claims, such mortgage cannot be set aside as a fraud on a party who subsequently obtains a judgment against the original owner in an action pending at the time of the conveyance.

Appeal from Wayne.

Moore &amp Moore, for defendants.

GRAVES C.J.

The bill in this cause was filed for the double purpose of aiding an execution and to reach property not open to execution. It is perfectly regular. Williams v. Hubbard, Walk.Ch. 28. In November, 1878, the complainant brought her action at law against the defendant John M. Bennett to recover damages for breach of promise of marriage, and due notice of trial was given for the term which began May 5, 1879, and the trial was immediately set down to take place on the twenty-eighth of the same month. In this interval between the commencement of the term and the day fixed for trial, the defendant John M. Bennett executed a conveyance of the land in question to his son, the defendant William H. Bennett, a young man 22 or 23 years of age. This transaction was on the sixteenth of May. No consideration was paid; but an instrument of which the following is a copy was given back:

"Whereas John M. Bennett has this day conveyed to William H. Bennett certain real estate in the county of Wayne, and certain mortgages on property in the state of Michigan; and whereas, said John M. Bennett is indebted to Mrs. John M. Westfall in the sum of about $600, to William Eldred in the sum of about $325, to Samuel Baker in the sum of about $214, to Calvin V. Crosby in the sum of about $150, and James B. Pattison in the sum of about $400; and whereas, it is intended by the parties hereto that said John M. Bennett shall be supported during his natural life by the said William H. Bennett; and therefore said William H. Bennett, for and in consideration of the conveyance to him of said lands and said mortgages as aforesaid, hereby expressly promises and agrees, upon demand, to pay said Westfall, Eldred Baker, Crosby, and Pattison the full amount due to them from the said John M. Bennett to the same, more or less, with the interest which has or may hereafter accrue on each and any of said claims, and have the said John M. Bennett released from all liabilities to said parties. He further agrees to supply and provide for the said John M. Bennett, during his natural life, a suitable and proper maintenance and support. This contract is secured by a real estate mortgage of even date herewith. The property covered by said mortgage is the same property this day deeded by said John M. Bennett to said William H. Bennett. WILLIAM BENNETT. [ L.S.]

"Detroit, May 16, 1879."

The mortgage specified at the close of this document was never executed.

The defendant John M., who had in immediate prospect the trial on the charge against him of breach of promise, and who was here making provision to be protected and maintained by his youthful son, was of good age and ability to take care of himself. He was only 51, was strong and robust, and an efficient blacksmith.

On the twenty-ninth...