Loomis v. Smith

• Decision Date: 01 November 1877
• Citation: 37 Mich. 595
• Court: Michigan Supreme Court
• Parties: Edgar Loomis v. John Smith, Jr. et al

37 Mich. 595

Edgar Loomis v. John Smith, Jr. et al

Supreme Court of Michigan

November 1, 1877

Argued October 25, 1877

Appeal from Calhoun. (Van Zile, J.)

Bill in aid of execution. Complainant appeals. Affirmed.

Decree dismissing the bill affirmed with costs.

Willis S. Geer for complainant appellant.

Brown & Patterson and Francis A. Stace for defendants.

Cooley C. J. Campbell and Graves, JJ. concurred: Marston, J. did not sit in this case.

OPINION

Cooley C. J.

This is a bill in aid of an execution. The complainant's judgment is against John Smith, junior. An execution issued upon it was levied July 30, 1870, on certain lands in Calhoun county. The only interest which Smith is shown to have had in these lands was acquired by a contract for the purchase thereof between himself as purchaser and Joshua and Susan Wright as vendors, bearing date in November, 1866, and still unperformed by him. March 1, 1870, Smith sold his interest in this contract to Melvin L. Clute, receiving $ 250 in land and agreeing to assign it on the first day of October following, when the balance of the purchase price, some $ 572, was paid. April 18, 1870, Smith assigned to his wife all his interest in the contract between himself and Clute. The sale to Clute and the assignment to Mrs. Smith are thus shown to have preceded the levy, and if they were valid, they divested the execution debtor of any interest in the land whatever. The substantial interest in the Wright contract had passed to Clute, to the extent of the payment made by him, and to Mrs. Smith to the extent of what still remained to be paid by Clute on his purchase; and Smith merely held the contract in trust for them respectively.

This view is conclusive of the case unless one or both of these transactions was fraudulent. It is not claimed that the sale to Clute was a fraud, but it is urged that fraud is shown in the transaction between Smith and his wife, which was entered into by the latter with full knowledge of Smith's indebtedness. On that subject we have evidence which satisfies us that the Clute contract was assigned by Smith to his wife for a bona fide indebtedness, the origin of which was a loan of money by her to him, and that the assignment was fair and reasonable. Some circumstances to which our attention is called, and which are supposed to indicate a fraudulent purpose on the part of Smith and his wife, and a fraudulent attempt to...