First Nat. Bank v. Buck

• Citation: 56 Mich. 394,23 N.W. 57
• Court: Michigan Supreme Court
• Decision Date: 22 April 1885
• Parties: FIRST NAT. BANK OF STURGIS v. BUCK and others.

23 N.W. 57

56 Mich. 394

FIRST NAT. BANK OF STURGIS v. BUCK and others.

Supreme Court of Michigan

April 22, 1885

Appeal from St. Joseph.

J.W Flanders, for defendants.

CHAMPLIN J.

The bill of complaint in this case is filed in aid of certain executions at law levied upon judgments in favor of the bank against defendant Benjamin C. Buck.

The bill avers: (1) The indebtedness of the defendant Benjamin C Buck to Henry W. Richards on two promissory notes, dated July 24, 1874, given for $3,000 each, due in three and four months after date, which notes were signed by Hiram Jacobs. (2) Indebtedness also to complainant in the sum of $6,000 on a note dated November 16, 1867, which note was also signed by E.G. Newhall and E.G. Bennett. (3) Indebtedness also to complainant on a note given for $1,500, which note was also signed by Levant E. White. (4) Indebtedness also to complainant on a note for $2,028.69, signed also by Z.H Wallace. (5) Indebtedness also on a note for $3,500, which note was also signed by S. Stow and Levant E. White.

Bill also avers other indebtedness of the said Benjamin C. Buck; that is: (1) To the First National Bank of Constantine about $3,100; (2) to the Farmers' Bank of Constantine, about $2,500.

The bill then avers judgment on the H.W. Richards note about August 4, 1875, in the circuit court for the county of St. Joseph, for $7,218.26, and costs, and issue of execution and levy made August 9, 1875, on certain lands of said Benjamin C. Buck, which lands are described in the bill. Also avers sale of said lands so levied on, in parcels, to the said H.W. Richards on the twentieth day of March, 1876, and issue of certificate of sale, etc., to him, and avers judgment in favor of the Farmers' National Bank of Constantine, against Richard Reed, Benjamin C. Buck, and Hiram Jacobs, October 28, 1875, for $2,519, and costs. Also judgment in favor of the First National Bank of Constantine, against Richard Reed, Benjamin C. Buck, and Hiram Jacobs, for $3,155, and costs, rendered on January 28, 1876. Avers issue of executions and levy on real estate above described, being the same lands upon which Richards' execution was levied. Avers judgment on a note of $5,000, before mentioned, against Benjamin C. Buck, Eli G. Bennett, and Elbridge G. Newhall, in the circuit court for the county of St. Joseph, about March 19, 1874, for $6,657, and costs, which was affirmed by the supreme court, and judgment there rendered for $6,700, and $200 costs. Avers issue of execution out of supreme court about May 12, 1876, and levy on real estate above alluded to, and also five-eighths second and third stories of brick block,--block 39,--all in village of Sturgis, known as "Union Hall." Avers judgments on the aforesaid three described notes of $1,500, $2,028.69, and $3,500, in said court, on the twenty-third day of October, 1877. Another in favor of complainant, against Benjamin C. Buck and Levant E. White, for $1,595.90, and costs. Also one against Benjamin C. Buck, Silas Stow, and Levant E. White for $3,539.17, and costs. And against B.C. Buck and Z.H. Wallace for $2,068.50, and costs. Also avers issue of executions and levy, "among other things, upon the lands and premises above described," and avers they are unpaid.

The judgments upon which the bill is based, were rendered as follows: In the supreme court of the state of Michigan, at the April term, 1876, for $6,700 damages, and costs of suit, and judgment rendered October 23, 1877, for $2,968.50, and one for $3,539.17, and costs. Avers that B.C. Buck's real estate was worth $20,000. Avers said B.C. Buck owned $2,000 in stock in First National Bank of Sturgis, also other personal property to amount of $10,000. Avers conveyance on the first of March, 1876, a portion of said real estate to Levant E. White, being five-eighths of Union hall. Avers an assignment of the said $2,000 bank stock by B.C. Buck to Charles B. Buck, his son, about March 30, 1876. Avers mortgage executed by B.C. and Hannah Buck to C.B. Buck for $4,800, without consideration, etc., and about the said time transferred to him, and other persons unknown, all his available personal property. Avers assignment of one-half to C.B. Buck of certain judgments in the United States court, Western district, Michigan, in favor of R. Reed & Son, against certain insurance companies, the proceeds of which, it is alleged, belonged to Benjamin C. Buck and Hiram Jacobs. That all these transfers and conveyances were made with intent to hinder, delay, and defraud the creditors of B.C. Buck. Avers that said real estate, bid in by H.W. Richards on his levy and sale on judgment against B.C. Buck and Hiram Jacobs was not redeemed, and that the executions in favor of the First National Bank of Constantine, Farmers' National Bank of Constantine, and Henry W. Richards were assigned to Charles B. Buck, and that the considerations therefor were paid by Benjamin C. Buck. Avers that on the twenty-fourth day of March, 1877, the sheriff of St. Joseph county delivered a deed of all said real estate covered by said executions to C.B. Buck. Avers that said deeds, assignments, executions, certificates of sale, mortgages, etc., are clouds on the title of said B.C. Buck, and stand in the way of complainant's execution, etc., and asks that they be declared fraudulent and void, and that the moneys and property paid by B.C. Buck to said Farmers' National Bank of Constantine, and said First National Bank of Constantine, and to H.W. Richards, in consideration of said assignments to said C.B. Buck be decreed to operate as payment and redemption by said B.C. Buck of said lands from said liens and incumbrances, etc., and that said mortgage from B.C. to C.B. Buck of $3,800 be canceled and delivered up, etc.

Benjamin C. Buck puts in a separate answer in substance as follows:

(1) Admits execution of notes set forth in bill and judgments rendered thereon. In regard to a note executed by himself, E.G. Newhall, and E.G. Bennett to complainant, he avers the following guaranty:

"STURGIS, November 18, 1867.

"For value received I hereby guaranty Benjamin C. Buck against all loss or liability by reason of signing a note with E.G. Bennett for five thousand dollars, discounted at the First National Bank of Sturgis, dated November 17, 1867, and due ninety days from date. RICHARD REED."

The answer sets up the following compromise, claimed to have been made between the defendants and complainant of the matters accrued, being the same averred in a bill filed by them on or about the seventeenth of August, 1877. And the defendant further answers and says that on or about the seventeenth day of August, 1877, the complainant filed a bill in this court setting up, stating, and charging in the same manner and form, substantially, the same facts and causes for relief as now charged in the bill of complaint filed in this case, and the said complainant came to a full adjustment of the matters and things therein stated, and receipted to defendant in full for any liability against him in relation to the Bennett note and judgment wrongfully obtained against this defendant, and received from him an assignment of the judgment obtained by him against Richard Reed for $5,030.35, in full accord and satisfaction of the liability of said defendant in relation thereto. That no proceedings were had in said suit beyond the pleadings duly filed in this court, and this defendant avers that all matters and things stated or charged in said bill of complaint were fully answered and abandoned or settled by complainant, and to which defendant prays leave to refer when produced, as a part of the files of this court.

And this defendant further answers and says that on or about the seventeenth day of August, 1877, complainant filed bill of complaint in this court covering the same matters and things charged in the bill of complaint filed in this cause; that this defendant and others answered said bill of complaint, and subsequently assigned to complainant the judgment hereinbefore mentioned, and the said L.E. White conveyed said Union hall to complainant, and the said Charles B. Buck assigned the judgment obtained by the Farmers' National Bank of Constantine, against this defendant and others, to complainant, and thereupon and by reason thereof said complainant abandoned his said suit in this court, and admitted the answer filed in said cause to be true, and which was true in fact, as this defendant will maintain and prove, and all of which fully appears by the files in said cause, to which, when produced, defendant asks leave to refer.

(3) Avers his business proved a failure; that all his real estate was levied on, advertised, and sold upon the Richards execution, and that he was unable to redeem.

(4) That he took no steps or measures to prevent his creditors from taking all his property, and applying the same in the payment of his debts.

(5) That when he stopped payment his available means were exhausted, and he had been compelled to relinquish his live-stock business for want of ready means to conduct the same.

(6) Avers an agreement made with complainants to prosecute the claim he and Newhall had against Reed on said guaranty, in consideration of which complainant agreed to release and discharge this defendant from further liability on said judgment, which he did, and assigned the judgment to complainant.

(7) That all of his property had been taken by his creditors to pay his debts; and complainant well knew that the same was being sold at a great sacrifice, and suffered the same to be done, and well knew the inability of the defendant to redeem the same or pay said indebtedness.

(8) That the stock of the complainant bank was assigned to C.B Buck for a valuable...