Lemay v. Bibeau

• Decision Date: 01 January 1858
• Citation: 2 Minn. 291
• Parties: JOSEPH LEMAY vs. PAUL BIBEAU.
• Court: Minnesota Supreme Court

2 Minn. 291

JOSEPH LEMAY vs. PAUL BIBEAU.

Supreme Court of Minnesota.

Appeal from judgment of district court, Ramsey county.

Suit in the nature of a creditor's bill, to set aside a conveyance of real estate in Dakota county, by one Vandall, to defendant. The complaint alleges the conveyance by Vandall to Bibeau, May 10, 1855, the recovery of judgment, in the district court, Ramsey county, in 1853, in favor of one Vadnais against Vandall, and the assignment of it to the plaintiff, and the docketing of the judgment in Dakota county, in August, 1855, and the issuance, and return unsatisfied, of an execution on it; also, that the conveyance was made without consideration, and with intent to defraud the creditors of Vandall.

The answer alleges, that the conveyance was made bona fide, and for a valuable consideration, and without any intent to defraud; and as a further defense, that this plaintiff instituted against the judgment debtor in said judgment proceedings supplementary to execution, in which proceedings the judgment debtor and this defendant were examined touching the indebtedness of defendant to Vandall upon the conveyance of said real estate; and that the court ordered that the claim of Vandall against defendant, for the remainder of the purchase money on said conveyance, be applied in satisfaction of the said judgment; and that said Vandall assign his claim therefor to a receiver appointed by said court, to be by said receiver collected or sold, and the proceeds applied for the benefit of this plaintiff, in satisfaction of said judgment; and that Vandall did so assign, pursuant to said order.

The reply denies the bona fides of the conveyance, and that it was for a valuable consideration; and as to the supplementary proceedings, alleges that they were brought to a close, and the receiver discharged, and that in said proceedings plaintiff realized $25.

The defendant demurred to the reply, and the demurrer was sustained, and judgment entered for defendant.

The points and authorities of the appellant are not on file.

Points and authorities for respondent: —

1. That a conveyance made with intent to defraud creditors is good between the parties and privies, and can only be avoided by a creditor of the fraudulent grantor. 5 Bing. 109; 16 Johns. 189; 22 Pick. 253; 10 Cow. 69, &c. 1 Story, 371; 1 Am. Leading Cases, 76.

2. A creditor who has received a benefit under a fraudulent conveyance, or who has in any manner ratified the same, cannot afterwards avoid it. B. on Assignments, 543; Adler v. Yaed, 1 Rawle, 163; 1 Am. Leading Cases, 111, note; 5 Wend. 661; 5 Met. 49.

3. Lemay, by his proceeding supplementary to execution, in effect prosecuted an action against the respondent, representing therein Vandall, for the recovery, and to compel the payment of the amount then unpaid by Bibeau to Vandall, on said alleged fraudulent sale, and is therefore estopped by recovering the benefit of said consideration from controverting the legality of said conveyance on its good faith. Because, first, it would be a manifest wrong to permit Lemay, upon the claim of an actual indebtedness existing by virtue of said sale and conveyance, to recover and then, after receiving the price to be paid by Bibeau, to repudiate said contract of sale, and subject the land, so as to deprive respondent of both money and land.

J. & C. D. Gilfillan, for appellant.

Smith & Gilman, for respondent.

ATWATER, J.

The reply in this case admits the appointment of a receiver, under the proceedings supplementary to execution, which are set forth in the answer, and that the plaintiff in such proceedings received the sum of twenty-five dollars. This sum, as appears from the answer, was an amount found due by the examination of the defendant Bibeau, and Vandall, from Bibeau to Vandall, on the purchase of the land specified in the complaint by Bibeau, from Vandall. The amount found due from Bibeau to Vandall, on the sale of the land specified in the complaint, and the conveyance of which the plaintiff seeks to set aside, was ordered by the court below to be paid over to the plaintiff in part satisfaction of his judgment against Vandall, and was received by the plaintiff for such purpose. The only question which it is necessary to consider in this case is, whether the plaintiff can be permitted to receive a part of the consideration of the sale from Vandall to Bibeau, and then come into court and ask to have the sale set aside as fraudulent, and therefore void as to creditors. The defendant claims that the plaintiff, by instituting proceedings supplementary to execution, in effect prosecuted an action...