McLean v. Clark

• Decision Date: 27 June 1887
• Citation: 31 F. 501
• Parties: McLEAN v. CLARK and others.
• Court: U.S. District Court — Eastern District of Michigan

31 F. 501

McLEAN v. CLARK and others.

United States Circuit Court, E.D. Michigan.

June 27, 1887

Syllabus by the Court

C., a judgment creditor, and also the purchaser of land under an execution sale, conveyed the same to M., his son-in-law, a non-resident, for an interest in a worthless patent. Subsequent to his agreement to convey he endeavored to obtain possession of the land by proceedings in which he swore that he was the owner, and entitled to possession. The grantee never saw the law, never examined the title, or inquired as to its value, and took no part in the suit brought in his name to set aside a fraudulent deed made by the judgment debtor. Held, that the conveyance was collusive, and the court had no jurisdiction.

Where a party is called as a witness by the opposite party, the latter is not bound by his general statement as to his motives or intention in a particular transaction, but may draw any inference from his testimony which the facts stated by the witness seem to justify.

Quaere whether a bill will lie by the purchaser at an execution sale to remove a cloud from the title.

This was a bill in equity by the assignee of a purchaser at an execution sale to procure the annulment of a deed made by John Clark, defendant in the execution, to the defendant Townsend, prior to the sheriff's sale. The facts of the case are substantially as follows: On June 9, 1882, one David R. Shaw recovered a judgment in the Wayne circuit court against John Clark, John T. Clark, and Uriel Clark, for $4,653.33, upon a promissory note made October 29, 1879, and 90 days after date. At the time this note was made, and until after it had matured, John Clark was the owner of certain valuable real estate in the county of Lapeer, which, on February 7, 1881, he conveyed to the defendant Townsend for the nominal consideration of $50,002.94. Late in June, 1882 an execution was issued upon this judgment, and levied upon these lands, and at the execution sale, September 8th, they were bid in by the plaintiff Shaw for the amount of his judgment. In December, 1883, the sheriff executed a deed of the lands to Shaw, in pursuance of the statute, and on May 22, 1884, Shaw conveyed the lands to plaintiff, a citizen of Ohio, who filed this bill June 14, 1884; alleging that the conveyance from Clark to Townsend was fraudulent and void and was made for the purpose of hindering and delaying the creditors of Clark in the collection of their claims. The case was submitted upon bill, answers, and proofs.

A. C Angell and Otto Kirchner, for plaintiff.

Geer & Williams, for defendants.

BROWN J.

A preliminary objection is taken to the jurisdiction of this court, which we think is fatal. By section 5 of act of March 3, 1875:

'If, in any suit commenced in a circuit court, * * * it shall appear * * * that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said circuit court, or that the parties to said suit have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under this act, the said circuit court shall proceed no further therein, but shall dismiss the suit.'

It is insisted by defendants that the deed from Shaw to plaintiff was colorable only, and was not made bona fide, but for the sole purpose of conferring jurisdiction upon this court. Let us examine the facts, and see how far this contention is supported by the proofs. In December, 1883, Shaw became the purchaser of these lands at execution sale for $4,863.70. The lands were estimated to be worth $50,000, and were incumbered to the amount of about $25,000, besides the conveyance to Townsend which this bill seeks to annul. To substantiate the claim of collusion, defendants rely solely upon the testimony of plaintiff McLean, who was called by them as a witness, and who swore, in substance, that he was an attorney of some ten years' standing, residing in Elyria, Ohio, and was the son-in-law of David R. Shaw. Before beginning the practice of his profession he taught school in Pontiac, in this state, for two years. From conversations with Shaw he knew of his suit against Clark, and of his levy upon and sale of the lands in question. He says that at about Christmas, 1883, while spending the holidays with his father-in-law in Detroit, he had two or three conversations with him about taking a deed of these lands in exchange for 100 shares of the stock of a certain corporation which had been formed in Ohio, to manufacture a patented combination of a burglar and fire alarm upon a telephone, and that in the May subsequent the deed was sent to him. He never saw the lands, and had no knowledge of them, except as they had been described to him by Shaw, who told him that there were 1,100 acres, well improved, and with a number of buildings upon it. He did not know in what township the...