Nash v. D'arcy

• Decision Date: 26 February 1903
• Citation: 183 Mass. 30,66 N.E. 606
• Parties: NASH v. D'ARCT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

183 Mass. 30

66 N.E. 606

NASH v. D'ARCT.

Supreme Judicial Court of Massachusetts, Suffolk.

February 26, 1903

COUNSEL Stebbins, Storer & Crockett, for appellant.

Jos. C Sharkey and Abram Bon, for appellee.

OPINION

KNOWLTON C.J.

The defendant, having a debt against Morris Silberstein and Bernard Silberstein, brought a suit to recover it and attached real estate as their property standing in the name of their mother, Annie Mooshkin, which was conveyed to her in fraud of their creditors. The plaintiff and one Pinkham, a short time before, had taken from her a deed of this property, having knowledge that her title was fraudulent as against her sons' creditors, which deed had not been recorded at the time of the attachment. She gave a bond to dissolve the attachment, and the plaintiff entered into an obligation to indemnify and protect the surety on the bond from its liability. The present defendant recovered a judgment for his debt, and brought a writ of entry against Mooshkin under Pub. St. c. 161, § 128, to establish his title as a foundation for an action on the bond. The deed to the plaintiff from Mooshkin was given to secure him and a corporation called the I. W. Pinkham Company for the payment of debts due from her two sons. The defendant knew of this deed before he attached the property. This bill is brought to enjoin the prosecution of the writ of entry, on the ground that the plaintiff's equitable rights, by reason of his liability to the surety on the bond, and because of his title under the deed from Mooshkin, are superior to the defendant's rights under his attachment.

The facts relied on by the plaintiff might be availed of in either of two ways: They might be set up as an equitable defense to the writ of entry if the tenant would consent to plead them or allow them to be pleaded in her name; or they might be averred, as they have been, in this bill in equity brought to obtain an injunction against a prosecution of the action at law. But the party relying on them cannot use them in both suits, first trying one, and then, if unsuccessful trying the same issues a second time in the other. That is what the plaintiff is now endeavoring to do. It is found that the tenant in the writ of entry appeared by the counsel of the present plaintiff and defended the suit in his behalf setting up in her plea and answer everything this is found in the plaintiff's favor in the present suit. ...