Mason v. Pierron

• Decision Date: 28 April 1885
• Citation: 63 Wis. 239,23 N.W. 119
• Court: Wisconsin Supreme Court
• Parties: MASON, ADM'R, ETC., AND ANOTHER v. PIERRON, IMPLEADED, ETC.

63 Wis. 239

23 N.W. 119

MASON, ADM'R, ETC., AND ANOTHER

v.PIERRON, IMPLEADED, ETC.

Supreme Court of Wisconsin.

Filed April 28, 1885.

Appeal from circuit court, Fond du Lac county.

This is an appeal by the plaintiffs from an order sustaining the demurrer of the defendant Pierron to the complaint. The case made by the complaint is this: June 21, 1882, the city of Fond du Lac recovered judgment for over $37,000 against John Hughes, James Gaynor, Charles B. Bartlett, Robert A. Baker, the plaintiff M. D. Moore, and the defendant Leon Lallier. The action was upon the official bond of the defendant Pierron as treasurer of said city, in which the persons above named were sureties. Pierron was also a defendant in the action, but he pleaded and established a discharge from his debts in insolvency proceedings under chapter 179, Rev. St., and the judgment did not go against him. Thomas Mason, the plaintiff Mason's intestate, was also a surety in the bond and made a defendant, but died pending the action. A transcript of such judgment was duly docketed in the office of the clerk of the circuit court of Fond du Lac county, July 13, 1882. All the defendants in that action against whom the judgment was rendered, except Baker, appealed to this court. The judgment was affirmed as to all of them except Hughes, who was held not liable on the bond. 58 Wis. 170;S. C. 15 N. W. REP. 782.

September 13, 1883, an execution was duly issued on the judgment, and during that month, and the month of November following, Gaynor, Moore, and Bartlett paid the judgment. Thereupon Gaynor and Bartlett sold and transferred to Moore all their claim and demand against the defendant Lallier for contribution. Within 20 days after such payments were made, Moore, Gaynor, and Bartlett each filed with the clerks of the circuit courts of Rock and Fond du Lac counties, respectively, the affidavit and claim prescribed in section 3024, Rev. St., in order to preserve the lien of the original judgment upon the lands of Lallier in Fond du Lac county, and to enforce contribution of his share of the judgment debt. In April, 1884, the plaintiff, the administrator of the estate of Thomas Mason, deceased, paid Moore, Gaynor, and Bartlett one-fourth of the sum paid by them upon the judgment, by way of contribution due them from said estate. Baker is wholly insolvent, is not a resident of this state, and has paid nothing upon the judgment or as contribution to his co-sureties. Neither has the defendant Lallier. At the time the judgment was docketed in Fond du Lac county, Lallier owned certain specified tracts of land therein, subject to execution, of the value of $2,500.

The case against the defendant Pierron, stated in the complaint, is as follows: After alleging that before the insolvency proceedings were instituted Pierron was the owner of certain described real estate in the city of Fond du Lac, of the value of $5,000, one parcel of which was an undivided one-half of the north 20 1/2 feet of lot 13, the complaint proceeds as follows:

“Before taking the said proceedings in insolvency, the said Pierron, on the ninth day of June, 1881, conveyed the said lands and premises to the defendant Leon Lallier by deed, which was recorded in the office of the register of deeds for Fond du Lac county, on the fifteenth day of June, 1881, in volume 92 of Deeds, on page 490; and that the said lands and premises were not scheduled by said Pierron, or turned over to his assignee, as any part of his assets; that on the sixth day of July, 1882, and after said Pierron had been discharged from liability in the said action brought by the city of Fond du Lac, he, the said Lallier, pretended to reconvey all of the said land and premises back to said Pierron, including the whole of said N. 20 1/2 feet of said lot 13, by deed, bearing date on that day, and recorded in the said register's office, July 7, 1882, in volume 97 of Deeds, on page 530.

Upon information and belief the plaintiffs further allege that the said transfer from Pierron to Lallier was without consideration, was a mere sham and pretense, and was made for the purpose of secreting and covering up the said property of said Pierron while he took his said insolvency proceedings, and to prevent its being applied upon his said defalcation, or going for the benefit of his said bondsmen; that the same was a fraud, contrary to the true intent of chapter 179 of the Revised Statutes, and was participated in by said Lallier; that the reconveyance from Lallier back to Pierron was without consideration, and was a part of the same scheme to keep the said above-described property, including the whole of said N. 20 1/2 feet of said lot 13, from being applied upon the said judgment, or going to the benefit of said bondsmen; that in his said insolvency proceedings said Pierron stated under oath that he had no other indebtedness except the said indebtedness of $37,160.15 to the city of Fond du Lac.”

The specific relief demanded is that the defendant Lallier be decreed to pay the plaintiffs, respectively, the amount he ought to pay by way of contribution; that the plaintiffs be subrogated to all the rights of the city of Fond du Lac, under the judgment which they have thus paid; and that the deed of July 6, 1882, from Lallier to Pierron, be adjudged fraudulent and void as to the plaintiffs, and set aside and annulled; and the lands therein described be subjected to the lien of such judgment, and to sale on the execution issued thereon, to the amount found due from Lallier to the plaintiffs. There is also a prayer for general relief. The demurrer of Pierron was interposed upon several grounds, only two of which are relied upon. These are (1) that several causes of action have been improperly united therein; and (2) that the complaint does not state facts sufficient to constitute a cause of action.

George E. Sutherland, for appellants.

E. S. Bragg, for respondent.

LYON, J.

Actions to enforce contribution between sureties, and to subrogate a surety who has paid the debt of the principal debtor to the securities and rights of the creditor, are constantly sustained by courts of equity, and have been from the earliest times. In so far as this action seeks to compel the defendant Lallier to reimburse the plaintiffs such sum as, between the sureties, he equitably ought to pay upon the judgment, it was properly brought as an equitable action, although courts of law have a very extensive concurrent jurisdiction over the same subject. The right of the plaintiffs to be subrogated to the remedies of the judgment creditor is, also, clearly a matter cognizable by a court of equity. The extent to which subrogation may be decreed has been a matter of some conflict between the courts of this country and of England. It was formerly held in England, following the Roman law, that a surety subrogated to the rights of a creditor had precisely the same rights the creditor had, and stood in his place; but in later times the rule has been restricted in that country, and...