McKenna v. Crowley

• Decision Date: 06 December 1888
• Citation: 16 R.I. 364,17 A. 354
• Parties: MCKENNA v. CROWLEY et al.
• Court: Rhode Island Supreme Court

17 A. 354

16 R.I. 364

MCKENNA

v. CROWLEY et al.¹

Supreme Court of Rhode Island.

Dec. 6, 1888.

Bill to set aside a fraudulent conveyance. On demurrer.

John M. Brennan and Christopher E. Champlin, for complainant. Marquis D. L. Mowry, for defendants.

DURFEE, C. J. The bill sets forth that September 21, A. D. 1888, the complainant recovered judgment against the defendant James T. Crowley, for $4,000, in an action on the case for the seduction of her daughter, commenced in the court of common pleas, February 17, A. D. 1888, at which last-mentioned date said Crowley was the owner of, and interested in, certain parcels of real estate, described, but defectively described, in said bill, and had no other property where with to satisfy said judgment; that February 23, A. D. 1888, he conveyed the same to his mother, the defendant Bridget Crowley, the conveyance being without consideration, and made for the purpose of hindering and delaying this complainant in the collection of any judgment which she might recover in the action, and for the purpose of preventing the collection of the judgment rendered therein. The bill also sets forth that the complainant took out execution on her said judgment, and levied it on said real estate, October 31, A. D. 1888. The prayer of the bill is that said conveyance may be declared to be, as against the complainant, fraudulent and void, and for general relief. The defendants demur generally to the bill, for want of equity.

The defendants contend that the bill is bad because it does not show that execution has been taken out on the judgment, and returned unsatisfied. We do not think such a return was necessary. "Where a creditor seeks to satisfy his debt out of some equitable estate of the defendant," say the court in Miller v. Davidson, 3 Gilman, 518, 522, "which is not liable to a levy and sale under an execution at law, then he must exhaust his remedy at law by obtaining judgment, and getting an execution returned nulla bona, before he can come into a court of equity for the purpose of reaching the equitable estate of the defendant; and this is necessary to give the court jurisdiction, for otherwise it does not appear but that the party has a complete remedy at law. That is what may be strictly termed a 'creditors' bill. 'There is another sort of creditors' bill very nearly allied to this, yet where the plaintiff is not bound to go quite so far before he comes into this court, and that is where he seeks to remove a fraudulent incumbrance out of the way of his execution. There he may file his bill as soon as he obtains his judgment;" or, we may add, as soon as he obtains his judgment and levy, when a levy is necessary, to establish a lien in his favor. In such a case equity is resorted to in aid of the law, to enable the creditor to sell the property to better advantage. And see to the same effect, Fleming v. Grafton, 54 Miss. 79. The distinction pointed out may have been occasionally overlooked, but, allowing for such inadvertences, and for the statutory differences of the different states, it is supported by the strong preponderance of authority. Dodge v. Griswold, 8 N. H. 425; Stone v. Anderson, 26 N. H. 506; Bank v. Walker, 7 Ala. 926, 946; Newman v. Willetts, 52 Ill. 98; McKinney v. Bank, 104 Ill. 180; Zoll v. Soper, 75 Mo. 460; Webster v. Clark, 25 Me. 313; Pursel v. Armstrong, 37 Mich. 326; Pashby v. Mandigo, 42 Mich. 172, 3 N. W. Rep. 927; McElwain v. Willis, 9 Wend. 548, 561; Bus well v. Lincks, 8 Daly, 518, 527; Morgan v. Bogue, 7 Neb. 429; Cornell v. Radway, 22 Wis. 260; Jones v. Green, 1 Wall. 330, 332. The case at bar is within the latter class of cases. Under our law real and personal property are alike primarily subject to levy. The complainant has levied on real estate, in which she claims that the execution debtor, as between her and him, retained his interest, the conveyance to his mother being fraudulent. She might have had the interest sold under the levy without coming into equity; but she comes in furtherance of her legal right, because the interest will sell better when the cloud created by the conveyance is cleared away. The jurisdiction is auxiliary; and it is the levy of the execution giving a lien, not its return unsatisfied, which is the prerequisite to it. We think the court has exercised the...