Towns v. Smith

• Decision Date: 24 April 1888
• Citation: 115 Ind. 480,16 N.E. 811
• Parties: Towns et al. v. Smith et al.
• Court: Indiana Supreme Court

115 Ind. 480

16 N.E. 811

Towns et al.

v.Smith et al.¹

Supreme Court of Indiana.

April 24, 1888.

Appeal from circuit court, Huntington county; Henry B. Sayler, Judge.Kenner & Dille and L. L. Simons, for appellants. Branyan, Spencer & Branyan, for appellees.

Mitchell, C. J.

This suit was brought by Elizabeth Smith, her husband joining, to recover personal judgment against William R. and Hiram Towns, on a promissory note executed by the defendants as joint makers, payable to the plaintiff. Elizabeth Towns was made a party defendant, to answer concerning an alleged voluntary and fraudulent conveyance of real estate made to her by her husband, Hiram Towns, with the intent to defraud the creditors of the latter. Prayer for a judgment against William R. and Hiram Towns, and for a decree setting aside the conveyance to Mrs. Towns, and that the property be subjected to the judgment. There was a judgment for the amount of the note, and a decree according with the prayer of the complaint.

It is made a question whether the court erred in refusing to submit the case to a jury, generally, as an action at law. The position of the appellant in that regard is not maintainable. One feature of the case, it is true, was an action on a promissory note, and the relief demanded was merely of a pecuniary character. To that extent the proceeding resembles an ordinary action at law. In order to obtain final and more effectual relief, however, the suit combined a proceeding in the nature of a creditors' bill to set aside and cancel a fraudulent conveyance, which belongs exclusively to the procedure and jurisdiction of chancery. It follows, under the rule which declares that, if any essential part of a cause is exclusively of equitable cognizance, the whole is drawn into equity, that the present was a case of equitable jurisdiction. Hendricks v. Frank, 86 Ind. 278;Lake v. Lake, 99 Ind. 339;Quarl v. Abbett, 102 Ind. 233, 243, 1 N. E. Rep. 476.

The only other question presented is whether or not the evidence sustains the finding of the court. It is insisted that the proof entirely fails to show that the defendant Hiram Towns was insolvent, and that he did not have other property subject to execution at the time he made the deed which is assailed as fraudulent, or at the time the suit was commenced. In the absence of a specific lien upon the property transferred, or of a return of nulla bona upon an execution, it is essential to the maintenance of the judgment that such proof should have been made. Bruker v. Kelsey, 72 Ind. 51;Sherman v. Hogland, 73 Ind. 472;Baker v. State, 109 Ind. 47, 9 N. E. Rep. 711. As a general rule, courts of equity do not interfere to set aside conveyances or transfers of property made by a debtor until the creditor has exhausted all the remedies known to the law for the collection, and to obtain satisfaction, of his debt. Where it appears, however, that the debtor has fraudulently conveyed all his property subject to execution, and that the ordinary processes of the law would be futile, equity does not require that the creditor shall resort to mere useless formalities or unavailing remedies. Eiler v. Crull, 112 Ind. 318, 14 N. E. Rep. 79; Mason v. Pierron, 63 Wis. 239, 23 N. W. Rep. 119.The evidence on the subject of Town's property at...