Cooper v. Perdue

• Decision Date: 21 March 1888
• Citation: 114 Ind. 207,16 N.E. 140
• Parties: Cooper et al. v. Perdue et al.
• Court: Indiana Supreme Court

114 Ind. 207

16 N.E. 140

Cooper et al.

v.Perdue et al.

Supreme Court of Indiana.

March 21, 1888.

Appeal from circuit court, Monroe county; E. D. Pearson, Judge.

Action by Isaac Cooper and others against Calvin R. Perdue and others, to recover the amount of a fraudulently assigned note. Judgment for defendants, and plaintiffs appeal.

Buskirk & Duncan and Mulky & Pittman, for appellants.

Elliott, J.

The appellants allege in their complaint that they recovered judgments against Calvin R. Perdue; that executions were issued on the several judgments, and returned, “No property found;” that Wyatt W. Wick is indebted to Perdue in the sum of $1,000, evidenced by a promissory note executed by Wick to him; that Perdue is insolvent; that the money due from Wick is subject to execution; that the note was assigned to Charles W. Royse by Perdue, for the purpose of cheating and defrauding his creditors; that Royse placed the note in the hands of a partnership, known as the “Bank of Salem.” The case of the appellants was subsequently consolidated with one wherein Carmichael, the assignee of Perdue, was the plaintiff, and Wick and Royse were defendants. The complaint of Carmichael is not against the appellants, and we cannot perceive any reason upon which they can successfully attack it for the first time by the assignment of errors in this court.

The cross-complaint of Carmichael alleges that he is the assignee of Perdue, and gave bond and qualified as such assignee on the 5th day of June, 1885; that before that time Wick was indebted to Perdue on the note described in the appellant's complaint as therein alleged, and that he transferred it to Royse, as charged by the appellants. This pleading is not a model, but we think that it is not subject to the objections urged by the appellants, and we shall consider those objections, and none others. The assignee had a right to the relief sought, although he did not have possession of the note described. An assignee may recover property fraudulently conveyed, or he may reach funds in the hands of a fraudulent holder. It is not necessary that an assignee who pursues money due his assignor on a promissory note, fraudulently transferred, should have possession of the note before he sues, for, by bringing all the parties into court, he may obtain a decree that the money due on the note be paid to him. The complaint of the appellants, as we have seen, charges a fraudulent transfer of the note executed by Wick;...