Rowley v. Shepardson

• Decision Date: 09 July 1913
• Citation: Rowley v. Shepardson, 87 A. 528, 87 Vt. 57 (Vt. 1913)
• Parties: ROWLEY et ux. v. SHEPARDSON et ux.
• Court: Vermont Supreme Court

87 A. 528

87 Vt. 57

ROWLEY et ux.

v. SHEPARDSON et ux.

Supreme Court of Vermont. Windham.

July 9, 1913.

Appeal in Chancery, Windham County; Frank L. Fish, Chancellor.

Suit by Edson E. Rowley and wife against George W. Shepardson and wife. From a decree for orators, defendants appeal. Reversed and demurrer to decree sustained and case remanded.

Argued before ROWELL, C. J., and MUNSON, WATSON, HAZELTON, and POWERS, JJ.

H. G. Barber and F. E. Barber, both of Brattleboro, for appellants.

Chase & Daley, of Brattleboro, for appellees.

ROWELL, C. J. This is a creditors' suit, to enforce satisfaction of a judgment that the orators recovered against the defendant George W. Shepardson in an action on the case for fraud and deceit in the sale of a farm to them, called in the pleadings the "Hunting farm." The case is here on demurrer to the amended bill.

The bill alleges that on November 20, 1902, the defendant George W. Shepardson bought said farm and went into possession of it, and on January 12, 1904, deeded it to his wife through a third person, neither of whom paid anything for it; that thereafter Shepardson occupied and controlled it the same as before, and on November 20, 1905, acting for his wife, sold it to the orators, and therein committed the fraud and deceit for which said judgment was recovered; and that Mrs. Shepardson knew of, and participated in, said fraud and deceit; and that the orators were thereby induced to and did give to Mrs. Shepardson, for part of the purchase price, notes for the sum of $1,600, secured by mortgage on the farm, which notes have been paid down to $1,000 and some interest; that the orators took out execution on said judgment and put it into the hands of a deputy sheriff to serve, but who returned it wholly unsatisfied, because he could find no goods, chattels, nor estate whereon to levy it, nor the body of the debtor. The bill further alleges that on December 6, 1904, the defendant George W. Shepardson bought a piece of real estate in Londonderry in this state, known as the "Hermitage property," for which he paid $6,000, but took the deed of it in his wife's name, for the purpose, as she knew, of aiding and assisting her husband to commit the fraud and deceit upon the orators in the sale of the "Hunting farm," and to put the "Hermitage property" out of the reach of the orators if they should prosecute him for said fraud and deceit, and that she has never paid anything of her own for said property. The bill further alleges that, as soon as the defendants learned of the rendition of said judgment, the defendant George left the state with the aid and assistance of his wife, so that his body could not be taken on the execution; that his wife soon followed him; and that both have ever since remained, and still do remain, out of the state, solely for the purpose aforesaid. The bill prays that said judgment be paid out of the "Hermitage property"; that Shepardson be ordered and decreed to release any marital or other rights he has in said property; that Mrs. Shepardson be ordered to bring said notes and mortgage into court, and be enjoined from assigning or transferring them during the pendency of this suit; that said mortgage be adjudged to be invalid and void, and be canceled and extinguished as against the orators; that Mrs. Shepardson be ordered to pay back all of the money paid by the orators as aforesaid; that an accounting be had as to both defendants, and Mrs. Shepardson ordered to restore to the orators what she has received and now holds by reason of the fraud and deceit aforesaid; and that what Shepardson has received by reason thereof be ordered paid out of the amount now due on said notes and mortgage; that for what has been paid to Mrs. Shepardson execution may issue against her; that a writ of attachment issue against her; and for general relief. The demurrer was overruled, the bill taken as confessed, and a decree entered substantially according to its prayer in respect of the notes and mortgage therein mentioned.

The defendants claim that there is no equity in the bill because it does not allege that Shepardson has not attachable property in this state sufficient to satisfy the judgment. But the allegation that the execution was returned wholly unsatisfied is an answer to this specific objection, as we shall see.

The defendants further claim...