Egery v. Johnson

• Decision Date: 10 October 1879
• Citation: 70 Me. 258
• Court: Maine Supreme Court
• Parties: THOMAS N. EGERY & another in equity v. LEVI JOHNSON & another.

70 Me. 258

THOMAS N. EGERY & another in equity v. LEVI JOHNSON & another.

Supreme Judicial Court of Maine.

October 10, 1879

BILL IN EQUITY heard on bill, answers and proof. The material allegations are in the opinion.

The defendant Johnson's answer admitted the ownership of the premises at the time alleged in the bill, and alleged--

That during 1873 or 4, Nason Brothers were engaged in lumbering operations under a contract with the plaintiffs and on the latter's land, and prior thereto borrowed $6,100 of the defendant to carry on their business and gave their notes therefor; that on October 23, 1874, to enable Nason Brothers to complete their operations the defendant gave them his negotiable promissory note for $1,800 on one month; that Nason Brothers cut and ran down to their mill 1,800,000 lumber, nearly all of which was sawed and shipped to the plaintiffs in Bangor; that during the operation this defendant was assured by Nason Brothers that when plaintiffs disposed of the lumber his notes should be paid; that he had frequent conversations with plaintiffs in which they informed him that they were receiving and disposing of the lumber and would account for the proceeds; that they held the $1,800 note and had no doubt that the proceeds of the lumber would be sufficient to pay said note and that the defendant would receive all his pay from Nason Brothers; that confiding in the above assurance, during season 1875 he was induced to build a house on the premises mentioned in the bill, at a cost of more than $1,000; that receiving nothing from Nason Brothers, he became indebted for materials and labor upon the house; that being seventy-two years old and unable to labor, he was obliged to sell the house and land to the other defendant who paid sufficient money to discharge his indebtedness for labor and materials amounting to $250; and in addition thereto agreed to support this defendant during life, which agreement he had faithfully fulfilled to the present date; and that he had no intention to defraud any of his creditors.

That all his creditors were soon after paid by himself or the other defendant, and he believed that the complainants had been fully paid or had in their hands sufficient property or money to pay the note of $1,800.

The other defendant's answer was substantially the same--alleging inter alia that one of the plaintiffs on October 29, 1875, informed him that the lumber was in this plaintiff's hands, and whatever was left after paying their bills, would be held in trust for the benefit of the defendant, Johnson, and that he had no doubt that something would be left after all his bills and claims had been paid.

The plaintiffs put in evidence a judgment for $549.50 debt recovered on the $1,800 note, and a levy of the execution on the premises in question.

Johnson testified that he supposed the $1,800 note was paid when he conveyed, and that was all the debt he owed except bills on the house which were all paid by Keen.

Albert A. Keen (defendant) testified in substance:

That he had no knowledge of Johnson's indebtment to the plaintiffs when he purchased the premises; that he paid all the bills on the house, amounting to $260; that he heard of the $1,800 note three or four weeks afterward; that the plaintiff Dennett told him that he had no doubt there would be lumber enough to pay them, and what was over he would hold for Johnson's account.

That Johnson conveyed to him mortgages on three other houses and some box boards, that he would like to sell the property mortgaged for the amount due on the mortgages; that he had of Johnson a note against Brown & Smith for $500 which had not been paid, but was in suit.

Wilson & Woodard, for the plaintiff.

D. N. Mortland, for the defendants cited Scudder v. Young, 25 Me. 153. 1 Story Eq. 344. 2 Black. Com. 443. 3 Washb. R. P. 321. Story Eq. Plead. 251, 252. Dixfield v. Newton, 41 Me. 221. 1 Story Eq. 362, 363. Salmon v. Bennett, 1 Conn. 525. 1 Story Eq. 381. Whitman v. Weston, 30 Me. 285. Denney v. Gilman, 26 Me. 156. Chapman v. Butler, 22 Me. 191. Stone v. Bartlett, 46 Me. 438.

VIRGIN J.

The complainants allege that on, and for some time prior to October 29, 1875, they were creditors of the defendant Johnson who then owned certain real estate described and which he then conveyed, without adequate consideration, to his grandson, the other defendant, to defraud and hinder the complainants; that they recovered a judgment against the grantor and levied their execution upon the real estate so conveyed; and they pray that the defendants shall release all their apparent title to the land levied upon to the complainants.

Some objection is made to the form of the bill. What might have been the result had the defendants demurred, we need not now inquire.

Both defenda...