Blish v. Collins

• Decision Date: 02 March 1888
• Court: Michigan Supreme Court
• Parties: BLISH v. COLLINS ET AL.

36 N.W. 731

68 Mich. 542

BLISH v. COLLINS ET AL.

Supreme Court of Michigan

March 2, 1888

Appeal from circuit court, St. Joseph county, in chancery; RUSSELL R. PEALER, Judge.

David Bacon, (Clapp & Bridgman, of counsel,) for appellees.

SHERWOOD C.J.

On the 9th day of April, 1883, the complainant obtained a judgment in the circuit court for the county of Berrien, for the sum of $564.66 against the defendants William B. Collins, William J. Carey, and Benjamin Y. Collins. Execution was issued thereon on the 25th day of July, 1883, and was by the sheriff of said county duly levied upon four parcels of land claimed to be the property of defendant Benjamin Y Collins, who executed conveyances upon three of the same as follows: Upon one of said parcels said B. Collins and defendant Helen M., his wife, made and executed a mortgage to secure the payment of the sum of $1,000 to the defendant Howell, on or before one year from date, and dated the 6th day of May, 1882; acknowledged the same day and recorded on the 5th day of August thereafter. The said Benjamin Y Collins and wife also conveyed by warranty deed the second parcel to said defendant Austin R. Howland, dated the 13th day of May, 1882, and which deed was recorded on the 10th day of May, 1883. The consideration of this conveyance purports to be the sum of $800. This conveys two descriptions. Said B. Y. Collins and wife further conveyed to the defendant Ruth W. Babcock, by warranty deed, for the expressed consideration of $1,400, the third parcel levied upon. Said deed was dated the 20th day of May, 1882, and was recorded the 5th day of July, 1882. The suit in which the complainant recovered his judgment in the circuit court was commenced by attachment on the 27th day of June, 1882, upon a claim made upon a promissory note for $500, and dated the 31st day of May, 1880.

As stated by the complainant's counsel, the bill in this cause was filed for the purpose mainly "of having the three conveyances made by Benjamin Y. Collins and wife set aside and declared null and void, as fraudulent against the complainant," and to remove the cloud upon the complainant's levy under his attachment and execution, caused by the record of such conveyances, and which are subsequent to his liens under such levies as he claims. The bill sets forth the foregoing facts among others; also avers that the sheriff made the levy upon the four parcels of land, which are entered upon the writ of execution as of the 21st day of July, 1883, said writ being dated the day before, and made returnable the 2d day of October following. And the 3d day of October is indorsed filed with the clerk of the court, with the following written thereon:

" State of Michigan, County of Berrien-ss.: No property found whereon to make the damages and costs; therefore I return the within execution unsatisfied, by order of the plaintiff.

JAMES R. CLARKE, Sheriff."

The complainant further avers by his bill which was filed in the month of October, 1884, on information and belief, that defendant Benjamin Y. Collins, who was surety for the other defendants upon the note upon which the judgment was given, is abundantly able to pay all his debts, if he desired so to do; but that he conceals his property for the purpose of defrauding his creditors, and that he has money under his control to the amount of several thousand dollars, which cannot be reached by execution. And further avers that the above-mentioned mortgage made by him was without consideration; that the mortgagee was his uncle residing in the state of New York; and that the mortgage was made for the purpose of defrauding the mortgagor's creditors, and after the issuing of the writ of attachment, and void against complainant's levies. Also that both of said deeds are fraudulent, and made without any consideration, and not until after the issuing of said writ, and with the intent to defraud complainant out of his debt; that said deeds and mortgage were dated back, and neither grantee in the deeds, nor the mortgagee received said conveyances in good faith; that said mortgage was made without the knowledge of the mortgagee, and that the deeds were made with the knowledge of the grantees of the facts which made them void. The remaining averments of the bill are those usual in the ordinary creditors' bill. David Bacon was originally made a party to the bill, he being, as is alleged, the attorney who drafted the several conveyances, and attorney of all the defendants, and participated in the alleged fraud. The bill was, however, on coming in of the answers, dismissed as to him, and there is nothing showing him other than the proper legal adviser of the parties. The defendants all appeared, and, except Mrs. Collins, John Collins, and William J. Carey, all jointly and severally answered, and fully denied all the fraud charged in the bill, as well as the main facts contained therein from which it is imputed, and each denies that he or she holds any property of Benjamin Y. Collins for his creditors or in trust for him, or that either of the conveyances were antedated. Mr. Blish, Mrs. Babcock, John Collins, A. Howland and B. Y. Collins, all parties to the suit, and two others, were sworn in the case on the part of the complainant. The defendants took no testimony. The case was heard before Hon. RUSSELL R. PEALER, circuit judge, on the pleadings and proofs, who made a decree dismissing the bill.

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