Hexter v. Clifford

Citation5 Colo. 168
Case DateDecember 01, 1879
CourtSupreme Court of Colorado

5 Colo. 168

HEXTER
v.
CLIFFORD.

Supreme Court of Colorado

December, 1879


Error to District Court of Arapahoe County.

HEXTER, the plaintiff in error, on the 30th of June, 1879, [5 Colo. 169] filed his complaint in the District Court of Arapahoe County, against John S. Langrishe, Thomas Clifford, and Michael D. Clifford.

The complainant alleges, 'that Hexter recovered judgment in the County Court of Arapahoe, against Langrishe, in January, 1879, for $1,432. That execution was issued, and returned in part satisfied. That Thomas Clifford received a conveyance of certain lands in Arapahoe county from Langrishe, in February, 1871, in trust, to secure the payment of $8,400 and interest, to Michael D. Clifford, with power of sale on default of payment. The Thomas Clifford, after default, sold and conveyed said lands to said Michael D. Clifford for the price of $14,400. That Michael did not pay any part of such purchase-money; and that after discharging the debt due him, there remained due from Michael to Thomas, as such trustee, $4,400, or thereabouts, and that no part of it has been paid. That Thomas did not execute said trust in good faith, but confederated with Michael to invest him with the title without payment of the purchase-money, in violation of the trust, and with intent to deprive Langrishe and his creditors of the benefit of the surplus due. That the plaintiff cannot ascertain the true amount due from said Michael, nor can he reach the same in satisfaction of his judgment without the aid of the court. Prayer for judgment:

'I. That Michael may be declared to hold the property, subject to the trust aforementioned.

'II. That he may be required to account for the purchase, money aforesaid.

'III. That so much of the surplus as may be necessary may be applied in discharge of the plaintiff's judgment.'

To this complaint Thomas and Michael D. Clifford interposed a demurrer, which was sustained and judgment rendered thereon for the defendant. Hexter prosecutes this writ of error to reverse that judgment.

Messrs. GEORGE & FAUNTLEROY, for plaintiff in error. [5 Colo. 170]

Messrs. MILLER & CLOUGH, for defendant in error.

BECK, J.

This record presents the question whether the remedy provided by the Code of civil procedure for reaching money or property of a judgment debtor in the hands of other persons was designed to be an exclusive remedy, or whether a bill in equity, in the nature of a creditor's bill, may still be maintained. The provisions of our Code upon this subject are almost a literal transcript of the provisions of the Code of California on the same subject, and are similar to the provisions of the Codes of Wisconsin and New York. In California it is held that the remedy was intended as a substitute for a creditor's bill. Adams v. Hackett, 7 Cal. 187; McCullough v. Clark, 41 Cal. 298.

In Wisconsin the Code remedy is held to constitute the only manner of obtaining the relief formerly had under a creditor's bill. Graham et al. v. LaCrosse & Milwaukee Railroad Company, 10 Wisconsin, 459.

In New York the courts say that the proceedings supplementary to execution provided by the Code, are a substitute for the creditor's bill as formerly used in chancery-Lynch v. Johnson, 48 N.Y. 27-but appear to sustain the remedy by creditor's bill also, on the ground that it was given by statute, and the statute has not been repealed. Catlin v. Doughty, 12 How. Pr. 458.

In this State also we had a...

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16 practice notes
  • ESTATE OF MALONE v. Commissioner, Docket No. 4037-73.
    • United States
    • United States Tax Court
    • 26 Enero 1976
    ...Estate, 104 Colo. 561, 93 P. 2d 880, 883-884 (1939); Newell v. Tubbs, 103 Colo. 224, 84 P. 2d 820, 821 (1938); Hexter v. Clifford, 5 Colo. 168 (1879); Griswold, Spendthrift Trusts 160 (1947). There is no Colorado law, however, as to the validity of a spendthrift clause where the trust benef......
  • First Nat. Bank of Drumright v. Knight, Case Number: 17168
    • United States
    • Supreme Court of Oklahoma
    • 20 Septiembre 1927
    ...affirmed 266 U.S. 285, 69 L. Ed. 288, 45 S. Ct. 61; Ketcham v. Kent, Circuit Judge, 115 Mich. 60, 63, 72 N.W. 1110; Hexter v. Clifford, 5 Colo. 168, 173; Daigle v. Bird, 22 La. Ann. 138, 139; Cross v. Brown, 19 R.I. 220, 33 A. 147; High v. Bank of Commerce, 95 Cal. 386, 30 P. 556. ¶33 The c......
  • Ortiz v. Valdez, No. 97CA0568
    • United States
    • Colorado Court of Appeals of Colorado
    • 24 Diciembre 1998
    ...appeal dismissed, 454 U.S. 1050, 102 S.Ct. 592, 70 L.Ed.2d 585 (1981) (citing Endicott-Johnson with approval); Hexter v. Clifford, 5 Colo. 168 (1879) (stating the same principle prior to Endicott-Johnson ); accord Collection Professionals, Inc. v. Logan, 296 Ill.App.3d 959, 231 Ill.Dec. 225......
  • Smith v. Wells, 8717
    • United States
    • Supreme Court of South Dakota
    • 23 Abril 1945
    ...v. Haynes, 124 Cal. 561, 565, 57 P. 482, 71 AmStRep 99; Ketcham v. Kent [Circuit Judge], 115 Mich. 60, 63, 72 NW 1110; Hexter v. Clifford, 5 Colo. 168, 173: Kesler v. St. John, 22 Iowa 565, 566; Phillips v. Germon, 43 Iowa 101, 102; Smith v. Dickson, 58 Iowa 444, 445, 10 NW 850; Pistchal v.......
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16 cases
  • ESTATE OF MALONE v. Commissioner, Docket No. 4037-73.
    • United States
    • United States Tax Court
    • 26 Enero 1976
    ...Estate, 104 Colo. 561, 93 P. 2d 880, 883-884 (1939); Newell v. Tubbs, 103 Colo. 224, 84 P. 2d 820, 821 (1938); Hexter v. Clifford, 5 Colo. 168 (1879); Griswold, Spendthrift Trusts 160 (1947). There is no Colorado law, however, as to the validity of a spendthrift clause where the trust benef......
  • First Nat. Bank of Drumright v. Knight, Case Number: 17168
    • United States
    • Supreme Court of Oklahoma
    • 20 Septiembre 1927
    ...affirmed 266 U.S. 285, 69 L. Ed. 288, 45 S. Ct. 61; Ketcham v. Kent, Circuit Judge, 115 Mich. 60, 63, 72 N.W. 1110; Hexter v. Clifford, 5 Colo. 168, 173; Daigle v. Bird, 22 La. Ann. 138, 139; Cross v. Brown, 19 R.I. 220, 33 A. 147; High v. Bank of Commerce, 95 Cal. 386, 30 P. 556. ¶33 The c......
  • Ortiz v. Valdez, No. 97CA0568
    • United States
    • Colorado Court of Appeals of Colorado
    • 24 Diciembre 1998
    ...appeal dismissed, 454 U.S. 1050, 102 S.Ct. 592, 70 L.Ed.2d 585 (1981) (citing Endicott-Johnson with approval); Hexter v. Clifford, 5 Colo. 168 (1879) (stating the same principle prior to Endicott-Johnson ); accord Collection Professionals, Inc. v. Logan, 296 Ill.App.3d 959, 231 Ill.Dec. 225......
  • Smith v. Wells, 8717
    • United States
    • Supreme Court of South Dakota
    • 23 Abril 1945
    ...v. Haynes, 124 Cal. 561, 565, 57 P. 482, 71 AmStRep 99; Ketcham v. Kent [Circuit Judge], 115 Mich. 60, 63, 72 NW 1110; Hexter v. Clifford, 5 Colo. 168, 173: Kesler v. St. John, 22 Iowa 565, 566; Phillips v. Germon, 43 Iowa 101, 102; Smith v. Dickson, 58 Iowa 444, 445, 10 NW 850; Pistchal v.......
  • Request a trial to view additional results

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