Smith v. Rumsey

• Decision Date: 11 January 1876
• Citation: 33 Mich. 183
• Court: Michigan Supreme Court
• Parties: Seth Smith and another v. Luther Rumsey and others

33 Mich. 183

Seth Smith and another v. Luther Rumsey and others

Supreme Court of Michigan

January 11, 1876

Heard October 26, 1875

Appeal in Chancery from Clinton Circuit.

Defendants entitled to their costs. Case remanded, with directions.

Spaulding & Cranson and J. O. Selden, for complainants.

R Strickland, for defendants.

OPINION

Graves, J.

Complainants and defendant Rumsey and one E. D. Tripp, on the 12th of April, 1871, became co-sureties on the township treasurer's bond of one Edward L. Smith, a son of complainant Smith, and this Edward L. Smith became a defaulter. The township sued the principal and sureties on the bond, in the circuit court, and on the 17th of February, 1873, recovered judgment for damages, six thousand six hundred and eighty-five dollars and twenty-eight cents, and costs taxed at forty-five dollars and thirty cents. Execution was stayed until April first, 1873, and was issued on the 3d of that month, and on the same day a levy was made on a large amount of complainants' property, including real estate, and also on certain parcels of real estate as the property of the defendant Rumsey. These last parcels were described in the levy as follows: "The west half of the northwest quarter of section twenty nine, and the east half of the northwest fractional quarter of section thirty, and land sixteen rods east and west by ten rods north and south out of northeast corner of southeast quarter of northeast quarter of section thirty, all in township seven north, of range two west, in Clinton county, Michigan."

Within a short time after the levy the amount which the execution called for was fully paid by complainants, one-half by each, and the sheriff, by direction of the attorneys for the plaintiff in execution, retained the writ in his hands. Complainants thereupon filed this bill against Rumsey, their co-surety, and the other defendants, his sons in-law, the latter claiming as grantees from Rumsey all the lands levied on as his, except forty acres on section twenty-nine, and he making claim of a homestead right on a portion of the land on that section so levied on. The bill is not strictly one for contribution. It insists that on the payment of the judgment a right accrued to contribution, and that the levy, under the equitable doctrine of subrogation, instantaneously inured to complainant's benefit, in so far as necessary to work out contribution under the execution at law, and that the aid of equity is needful, not to expressly decree and compel contribution, but to remove obstacles fraudulently interposed and set up to prevent the obtainment of contribution through the execution and levy. The real purpose is to get rid of these impediments, so that the quota claimed of Rumsey may be collected under the process at law, and as inducement to the right to come into equity for the removal of these impediments, the matters concerning the right to contribution and the right of subrogation are necessarily set forth. The bill states that Smith, the principal, and Tripp, the other surety, are respectively insolvent; that Rumsey is responsible, and in equity bound to contribute to each complainant one-sixth of the debt; but that intending to evade his obligation and cheat and defraud complainants, he, together with his wife, deeded, under date of March 31, 1873, the day before the stay of execution expired, to his son-in-law, Rollin Hathaway, the northwest quarter of the northwest quarter of section twenty-nine, and also deeded under the same date to James H. Hathaway, another son-in-law, the east half of the northwest quarter of section thirty; that he lives on said northwest quarter of the northwest quarter of said section twenty-nine; that all his interest levied on, exclusive of the premises so deeded, is wholly insufficient to satisfy his share of the amount paid on execution; that complainants are informed and believe that the lands so deeded are worth five thousand dollars, and that there was no consideration for the deeds, and that his sons-in-law respectively received them with the intent and purpose of cheating and defrauding complainants in the premises. The bill then asks that Rumsey may be decreed to pay to complainants respectively the sums rightly due them on account of such suretyship and payment; that said deeds may be declared fraudulent and void as against the complainants, and that said Rollin and James H. may be respectively decreed to reconvey the lands described in such deeds to Rumsey, to the end that the sheriff may sell the same under and by virtue of said execution and levy to satisfy the amount due from said Rumsey to complainants respectively.

The answer of the defendants, in which all joined, admits the judgment, the conveyances by Rumsey to his sons-in-law, and his residence on the northwest quarter of the northwest quarter of section twenty-nine; but neither admits nor denies the insolvency of the defaulter Smith, or of the co surety Tripp, the issuing or levy of the execution, the amount of the judgment, or the amount paid by complainants.

It denies liability to contribute, the solvency of Rumsey, and all fraud in deeding to the Hathaways; and insists that these deeds were upon good, valid and sufficient consideration. It then sets up that about the middle of April, 1871, an agreement was made between Rumsey and Rollin Hathaway, whereby the latter and his wife, a daughter of Rumsey, were to work four years for Rumsey for the piece of land specified in the bill as deeded on the 31st of March, 1873, by Rumsey and wife to said Rollin; that immediately after this agreement was made, Rollin and his wife began work thereunder, and so continued up to the time of answering; that the land in question at the time of conveyance was not, and is not now, worth more than eight hundred dollars, whilst the work of defendant Rollin and his wife is well worth two hundred dollars per year; that the small parcel of about an acre on the southeast quarter of the northeast quarter of section thirty, embraced in the levy, was sold to said Rollin for cash paid down in 1871; that about the 15th of February, 1872, the defendant Rumsey sold the east half of the northwest quarter of section thirty to James H. Hathaway, for two thousand five hundred dollars, and that long prior to the judgment said James had paid to said Rumsey all of the purchase price going to him; that about the 19th of March, 1872, he so paid two hundred and thirteen dollars and forty-five cents in money, and seventy dollars in the amount of a saw and lumber bill he held against Rumsey, and five hundred and ninety-two dollars in a debt Rumsey owed him for work he had done for him; that there was a five hundred dollar mortgage on the land, with accrued interest, and which he, said James, assumed and agreed to pay; that soon after his purchase said James went into actual possession, and has since that time resided on the land. The answer then contains the following matter: "These defendants show and aver that William Bird, an old man, had an interest in said land to the amount of one thousand eighty four dollars and seventy-five cents, for money which he advanced to the said Luther Rumsey, and for which he was, by an arrangement with the said Luther Rumsey, to have and hold an interest in said land, for the purpose of securing to him his support. These defendants aver and show that the said James H. Hathaway, when he purchased said land, assumed the said obligation of one thousand eighty-four dollars and seventy-five cents, and agreed to secure and pay the same, and has executed and delivered a mortgage for the same."

It is next set up that defendant James has built a house worth six hundred dollars on the land, and that at the time of his purchase the premises were not worth more than two thousand five hundred dollars, and are not now, aside from the house; that the northwest quarter of the northwest quarter of section twenty-nine, where defendant Rumsey lives, is his homestead.

Finally the answer avers that the levy was wholly released and destroyed by complainants' payments; and then by way of demurrer makes the point that so much of the bill as unites complainants as co-parties, and also prays joint relief, is not good in law. A general replication being filed, and proofs being taken, the cause was heard upon the merits, and the court made a final decree in favor of complainants. By this decree it was declared that defendant Rumsey was liable, and ought to contribute; that the sum for which he was so liable, and ought to pay to complainants, was two thousand five hundred and ninety-five dollars and twenty-six cents, and that he pay the same.

It was also declared that the levy in the sheriff's hands, on the west half of the northwest quarter of section twenty-nine, and the east half of the northwest quarter of section thirty, and land sixteen rods east and west by ten rods north and south out of the northeast corner of the southeast quarter of the northeast quarter of said section thirty, all in township seven north of range two west constituted a good, valid and subsisting lien upon said premises, and inured to the benefit of the said complainants. It was further declared that the deed from Rumsey and wife, of March 31, 1873, to defendant Rollin, for the northwest quarter of the northwest quarter of section twenty-nine, and the deed of like date from Rumsey and wife to defendant James H. Hathaway, for the east half of the northwest quarter of section thirty, were made without consideration and with intent on the part of Rumsey and the grantees to cheat and defraud complainants, and were, as to the latter, fraudulent and void and that all of said premises were subject to the payment of the sum of money before...