Hickox v. Elliott
Decision Date | 12 November 1884 |
Citation | 22 F. 13 |
Parties | HICKOX v. ELLIOTT and others. |
Court | U.S. District Court — District of Oregon |
James K. Kelly and C. E. S. Wood, for plaintiff.
Thomas N. Strong, for Joseph Holladay.
W. H Holmes, for S. G. Elliott.
C. J Macdougall, for Ben Holladay.
This suit is brought by George C. Hickox, a citizen of California against Simon G. Elliott, Ben Holladay, Joseph Holladay, and William H. Effinger, citizens of Oregon, to subject certain property, the legal title of which is now in Joseph Holladay to the payment of a certain decree heretofore given by the supreme court of Oregon against Ben Holladay, on the ground that said property was assigned, transferred, and conveyed to the former by the latter to hinder and delay his creditors, and that the plaintiff is the assignee of said decree in trust for Martin White, a creditor of said Elliott. The defendants demur to the bill separately, and assign numerous and different causes of demurrer, that on the argument were resolved or condensed into these: (1) The non-joinder of necessary parties, plaintiff and defendant; (2) the contract on which the plaintiff seeks to recover is void for champerty; and (3) the plaintiff has been guilty of laches. The facts stated in the bill are substantially these:
On September 12, 1868, Elliott formed a partnership with Ben Holladay and one C. Temple Emmet, by the name of 'Ben Holladay & Co.,' for the purpose of constructing and operating railways in Oregon, and thereafter the said partnership was engaged in the construction of the Oregon Central Railway Company, until November 5, 1869, when Holladay and Emmet commenced a suit against Elliott in the circuit court for Multnomah county to dissolve said partnership and settle the accounts thereof, which suit was afterwards transferred to the circuit court for the county of Marion, in which court, on September 28, 1877, a decree was entered dissolving said partnership, and adjudging Elliott to be indebted to the other members of the partnership in the sum of $470, from which decree Elliott took an appeal to the supreme court of the state, wherein, on August 15, 1879, a decree was given dissolving said partnership, and providing that Elliott recover from Holladay the sum of $21,919.46, and from Emmet the sum of $8,596, with his costs and disbursements in that court, no part of which sums have been paid to Elliott, and there is now due on said decree from Ben Holladay said sum of $21,919.46, with legal interest from August 15, 1879.
On February 10, 1874, Elliott, being unable to meet the expense of this litigation with his partners, applied to Martin White, then and now a citizen of California, for a loan of $12,000, 'to enable him to defend said suit, and for other purposes,' and offered to secure the payment of the same by an assignment 'of all his right, title, and interest' in said suit to the plaintiff, in trust for said White, whereupon the following contract was duly made and signed by the parties thereto:
(Signed)
'S. G. ELLIOTT. 'MARTIN WHITE.'
And in pursuance of said agreement, Elliott executed and delivered to the plaintiff the following sale and assignment, namely:
(Signed)
'Witnesses: MARTIN WHITE, R. P. CLEMENT.'
Between this date and March 25, 1879, White, in pursuance of this agreement, and upon the security of this sale and assignment, advanced to Elliott, and others for him, including $2,000 paid to the defendant Effinger, the sum of $22,589.65, no part of which has been repaid.
The defendant Effinger was the attorney for Elliott in the litigation with Holladay and Emmet, and claims a lien on the decrees given by the supreme court against them for his compensation as such attorney, and the plaintiff admits that he is 'entitled to some compensation' for his services, but how much he does not know, and therefore he makes him a party defendant.
During the pendency of this litigation Ben Holladay was indebted to sundry persons, including Joseph Holladay, and in October, 1871, he gave the latter, on account of said indebtedness, his note for $100,000, with interest at the rate of 1 per centum per month; and in November, 1876, gave a second note in discharge of the first one for the sum of $160,000, with interest at a like rate, and, to secure the payment of the same, transferred and conveyed to Joseph Holladay, at divers times between said last-mentioned date and the date of said decree against him, all the real and personal property owned by him in Oregon, consisting of lands, stocks, notes, bonds, mortgages, and other personal property, then worth $225,000 and now worth $500,000. Portions of this property were in the name of and held by third persons as the naked trustees of Ben Holladay, and the transfers and conveyances thereof to Joseph Holladay were made by them on the direction of the former, of which the latter had knowledge.
The bill also alleges that Ben Holladay has had no property in his own name, since the date of said decree, out of which the same could be satisfied by legal process, and is now insolvent and unable to pay the same, except out of the property aforesaid; that the transfers and conveyances aforesaid were made and directed by Ben Holladay and received by Joseph Holladay with the understanding and agreement between them that the same were taken and received by the latter partly as a security for the payment of said last-mentioned note, and also 'that said property was to be held in the name of Joseph Holladay, so that the same could not be attached, levied upon, or taken by the other creditors' of Ben Holladay, of whom Elliott was one; that the said transfers and conveyances were made by the latter 'with intent to hinder and delay the said Elliott and other creditors of the said Ben Holladay in the collection of their lawful debts and demands;' that at the date of said transfers and agreements it was understood and agreed between Ben Holladay and Joseph...
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