« AnteriorContinuar »
some interest in the land, the exact nature of which was unknown to plaintiff, --held, that a good cause of action was stated against the latter defendant; since it would be necessary to sell the property.) Bowen o. Sweeney, 63 Hun, 224; 17 N. Y. Supp., 753 ; s. c. 63 State Rep., 182. (In an action by an heir against devisees, complaint must allege the invalidity of the devise as required by Code Civ. Pro., § 1537.) Balen v. Jacquelin, 67 Hun, 311; s. c. 51 State Rep., 643 ; 22 N. Y. Supp., 193. (Plaintiff's possession is sufficiently stated by an allegation that plaintiff and defendants are seised and possessed of the land.) North Carolina.—McGill v. Buie, 106 N. C., 242 ; s. c. 11 S. E. Rep., 284. (A petition which alleges that the parties are tenants in common, and admits that defendant is in possession, claiming a share, but not admitting that he claims sole seisen is not demurrable on the ground that it is impliedly admitted that plaintiff is not in possession.) United States.— Willard v. Willard, 145 U. S., 116; s. C. 36 L. ed., 644; 12 Supm. Ct. Rep., 818. (In the Dist. of Columbia, it was held sufficient for the bill to merely allege that plaintiff desires to have partition of the land, and his share set apart to him in severality, or, if in the opinion of the court this could not be done without injury to the parties, etc., then by sale of the land and a division of the proceeds, without alleging any special reason for partition, or for having it made in one way or the other.) Sanders v. Devereux, 60 Fed. Rep., 311. (Demurrer sustained, where bill showed that complainant was disseised.) Washington.-Hill v. Young, 7 Wash., 33; s. c. 34 Pac. Rep., 144. (It is not necessary to allege the necessity for a sale in lieu of an actual partition, or that a partition cannot be made.) West Virginia--Ransom v. High, 37 W. Va., 838 ; s. c. 17 S. E. Rep., 413. (In equity, an allegation of demand and refusal of partition is unnecessary). Id. (It is not necessary for plaintiff to make a formal deraignment of title, further than is necessary to show how the parties became co-owners.)
COMPLAINTS IN CREDITOR'S ACTIONS.
[Principal Case, p. 328, this Vol.]
(1) Plaintiff's claim, judgment, etc.
(4) Exhaustion of legal remedies, issuing of execution, etc. (1) Plaintiff's claim, judgment, etc. Alabama.-Gibson v. Trowbridge Furniture Co., 93 Ala., 579; s. C., 9 So. Rep., 370. (Bill should set forth the character of plaintiff's demands, and when they became due.) McGhee v. Importers' and Traders' National Bank, 93 Ala., 192 ; s. C., 9 So. Rep., 734. (Demurrer should be sustained, where bill shows that plaintiff's debt is not due.) Jones v. Smith, 92 Ala., 455 ; s. C., 9 So. Rep., 179. (The bill of the assignee of a judgment creditor need not aver that the assignment was in writing.) Gibson v. Trowbridge Furniture Co., supra. (On demurrer, held that a bill by several creditors sufficiently stated that the debts were due and demandable when the bill was filed, by an allegation that the prices of the goods sold by them are owing, unpaid and due.) California. -Tatum v. Rosenthal, 95 Cal., 129; s. C., 30 Pac. Rep., 136. (Where the judgment recovered by plaintiff is set out in the complaint, it need not be alleged that the judgment was based on a valid and subsisting debt.) Indiana.-Eller v. Lacy, Ind., 1894, 36 N. E. Rep., 1088. (Demurrer should have been sussained, where complaint merely alleged the recovery of a judgment against defendant without stating any facts to show its character or validity.) Doherty v. Holiday, Ind., 1892, 32 N. E. Rep., 315. (A complaint in the nature of a creditor's bill need not state a joint cause of action in favor of all the plaintiffs, and it is sufficient, though it shows that the claim of each is separate and distinct.) Minnesota.–Sawyer v. Harrison, 43 Minn., 297 ; s. C., 45 N. W. Rep., 434. (Complaint must state facts showing that the plaintiff occupied a status either as creditor, or as the representative of creditors; a mere general allegation, that he was appointed by order of the court the receiver of all of grantor's property, is not sufficient.) Scanlan v. Murphy, 51 Minn., 536 ; s. C., 53 N. W. Rep., 799. (In pleading the judgment, it is enough to allege that it was rendered in an action pending.) Mississippi.-Browne v. Hernsheim, 71 Miss., 574 ; s. C., 14 So. Rep., 36. (Bill held to be demurrable by any person joined with debtor as a co-defendant, where it did not show that debts sought to be enforced were due.) New York.-Louis v. Belgard, 43 State Rep., 766 ; s. C., 17 N. Y. Supp., 882. (Demurrer sustained, where complaint alleged that plaintiff had a claim for goods sold and delivered by him to deceased insolvent debtor, without alleging a sale, value or agreed price.) United States.-Consolidated Tank Line Co. v. Kansas City Varnish Co., 45 Fed. Rep., 7. (A bill to set aside a deed of trust of corporate assets to secure debts for which the directors of the company were themselves liable as sureties, need not show that the complainant has established his claim by judgment.) Wisconsin.-Faber v. Matz, 86 Wis., 370 ; s. C., 57 N. W. Rep., 39. (A creditor's bill is not demurrable because it fails to allege that it was not brought collusively as required by Cir. Ct. Rule 28, subd. 1.) Marston v. Dresden, 76 Wis., 418; s. C., 45 N. W., Rep., 110. (Complaint stating the amount due on the judgment, and facts showing that there is no collusion between the parties to the action, and that plaintiffs prosecute only to satisfy their judgment, sufficiently complies with Cir. Ct. Rule 28, subd. 1.)
(2) Defendant's interest in the property sought to be reached. Indiana.-Slagel v. Hoover, 137 Ind., 314; s. C., 36 N. E. Rep., 1099.
(Complaint need not allege that the property conveyed was subject to execution, since its exemption would be a matter of defence.) Bright v. Bright, 132 Ind., 56 ; s. C., 31 N. R. Rep., 470. (Demurrer should have been sustained, where complaint showed that defendant furnished his son with money to purchase land, but failed to show that the land was purchased in trust for defendant.) Michigan.-Dutton v. Thomas, 97 Mich., 93 ; s. C., 56 N. W. Rep., 229. (A creditor's bill for discovery is not required to point out the property sought to be reached.) Gibbons v. Pemberton, 101 Mich., 397; s. C., 59 N. W. Rep., 663. (In absence of demurrer, debtor's ownership held to be sufficiently stated by an allegation, that he executed a deed for a pretended consideration by which he pretended to convey the land in question.) Missouri.—Jamison v. Bagot, 106 Mo., 240; s. C., 16 S. W. Rep., 697. (Under a complaint alleging that the wife of the judgment debtor claimed to own the land which debtor had fraudulently conveyed to a third person, and that she was therefore made defendant, held, that it was competent to introduce evidence im. peaching the wife's title.) Pennsylvania.–Ferguson v. Yard, 104 Penn., 586 ; s. C., 30 Atl. Rep., 517. (A bill to subject certain property to a judgment recovered against one as executrix must allege that the property, or a part thereof, belonged to decedent's estate.)
(3) The fraud. Alabama.-Cartwright v. Bamberger, 90 Ala., 405; s. C., 8 So. Rep., 264. (An averment, in a bill by an attaching creditor to set aside the attachment of another as fraudulent, that the demand on which the attachment was based was “simulated” is an averment of fact, and not a legal conclusion.) McGhee v. Importers' and Traders' National Bank, 93 Ala., 192 ; s. C., 9 So. Rep., 734. (It is not necessary to allege that debtor's voluntary grantee participated in the fraud.) Klein v. Miller, 97 Ala., 506 ; 11 So. Rep., 830. (Demurrer properly overruled to a bill which alleged that the sale was made for a pretended antecedent debt of $10,700, which was in whole or in part simulated, and that the real value of the goods sold was $15,000.) Loucheim v. Talladega First National Bank, Ala., 1893, 13 So. Rep., 374. (A general averment that the conveyance was executed for the purpose of hindering and delaying creditors is of no consequence; only the facts alleged will be considered.) Scholze v. Steiner, Ala., 1893, 14 So. Rep., 552. (An averment of the mere conclusion that the transfer was not made in good faith, but for the purpose of hindering, delaying and defrauding creditors, cannot be attacked by a motion to dismiss the bill for want of equity, but on such motion the defective averment will be treated as amended.) Curran v. Olmstead, Ala., 1894, 14 So. Rep., 398. (Demurrer properly sustained to a bill, which merely averred that the sale was made with the intent to hinder, delay, or defraud creditors, and that the transferee participated in such intent.) Williams v. Spragins, Ala., 1894, 15 So. Rep., 247. (General averments of facts, from which, unexplained, a conclusion of fraud arises, are sufficient.) California. Fitzgerald v. Neu. stadt, 91 Cal., 600; s. C., 27 Pac. Rep., 936. (Held, that the debtor's insolvent condition at the time of the alleged fraudulent sale was sufficiently shown by the following allegation ; “ that at the time of the attempted sale
and for a long time prior thereto, the said G. was, and ever since has been indebted to various persons in large sums of money; and during all said times was, and still is, unable to pay his debts from his own means, as said debts became due, and then was, and still is, an insolvent debtor," etc.) Threlkel v. Scott, Cal., 1893, 34 Pac. Rep., 851. (Complaint held to be sufficient on demurrer, which alleged generally, that the grantor was insolvent when
the conveyance was made, and that it was done with intent to defraud creditors.) Windhous v. Bootz, 92 Cal., 617; s. C., 25 Pac. Rep., 404. (It must be alleged and proved, that, at the time the conveyance was made, the debtor had no other property subject to execution out of which his debts could be satisfied.) Colorado.—Taney v. O'Connell, 16 Colo., 353 ; S. C., 27 Pac. Rep., 888. (In an action by a judgment creditor to have debtor's wife declared a trustee for property purchased in her name with her husband's money, held, that it was not necessary to allege that the debtor was insolvent, when his wife took title; since the action was not to set aside the conveyance, but to uphold it. Ilinois.Deimel v. Brown, 136 Ill., 586 ; s. C., 27 N. E. Rep., 44; Affirming 35 Ill. App., 303. (Where bill seeks to make the purchaser from debtor liable on the theory that he is indebted for the price, it need not be alleged that complainant was a creditor of the principal debtor when the sale took place.) Keller v. Whitlege, 38 Ill. App., 310. (A conveyance, made with the direct purpose of defrauding creditors, may be attacked without charging insolvency as the result of such conveyance.) Indiana. -Shew v. Hews, 126 Ind., 474; s. C., 26 N. E. Rep., 483. (Demurrer sustained, where complaint failed to allege that the debtor was insolvent.) Winstandley v. Stipp, 132 Ind., 548 ; s. C., 32 N. E. Rep., 302. (Complaint is demurrable, if it fails to allege that at the time of the conveyance the grantor had no other property subject to execution.) York v. Rockwood, 132 Ind., 358; s. C., 31 N. E. Rep., 1110. (Held, that it was sufficient to allege that defendant did not have at the time of conveyance, and has not since had, up to the time of commencement of the suit, sufficient property subject to execution to pay his debts.) McAninch v. Dennis, 123 Ind., 21 ; s. C., 22 N. E. Rep., 881. (It is not necessary to alleg'e fraud or knowledge of debtor's fraud, or insolvency on the part of those taking the conveyances without consideration.) Petree v. Brotherton, 133 Ind., 692 ; s. C., 32 N. E. Rep., 300. (Held, that it was insufficient to allege, that defendant had no property subject to execution at the time the action was commenced, or at the time an execution was issued.) Petree v. Brotherton, supra. (A subsequent creditor may maintain action, where he alleges and proves that the conveyance was made for the purpose of defrauding subsequent, as well as existing creditors.) Huffmaster v. Ogden, 135 Ind., 661 ; s. C., 35 N. E. Rep., 512. (Complaint held to be demurrable for failing to allege that debtor's grantee participated in the fraud ; and also on the ground that it did not allege that the debtor had no other property from which plaintiff's judgment could be satisfied.) Wilson v. Boone, 136 Ind., 142 ; s. C., 35 N. E. Rep., 1096. (In an action by an administrator to set aside a conveyance by deceased to his wife, the complaint must allege that the conveyance did not leave deceased enough to pay his debts; that it was made with the intent to defraud his creditors, as the wife knew, or without valuable consideration.) National State Bank v. Vigo County Nat. Bank., Ind., 1895, 40 N. E. Rep., 799. (Complaint must allege that the conveyance was executed with a fraudulent intent.) Roberts v. Farmers' and Merchants’ Bank, Ind., 1894, 36 N. E. Rep., 128 ; id., 1091. (Where complaint alleges that grantee was a party to the fraud, it
need not show that the conveyance was without consideration.) S. P. Slagel v. Hoover, 137 Ind., 314; s. C., 36 N. E. Rep., 1099; York v. Rockwood, 132 Ind., 358 ; s. C., 31 N. E. Rep., 1110. (In an action against a grantee who gave no consideration, it is not necessary to allege or prove notice to him of grantor's fraudulent intent.) Michigan.Dunsback v. Collar, 95 Mich., 611 ; s. C., 55 N. W. Rep., 435. (In an action to set aside a voluntary conveyance, grantor's insolvency held to be sufficiently stated by an allegation that he had “no real or personal estate liable to levy and sale, excepting the premises aforesaid, on which the sheriff could make a levy.") Missouri.—Mullen v. Hewett, 103 Mo., 639 ; s. c., 15 S. W. Rep., 924. (A bill alleging a number of distinct conveyances to different grantees, but showing no common purpose or design, held to be demurrable as multifarious.) New York.-Fuller r. Brown, 76 Hun, 557 ; s. C., 58 State Rep., 219 ; 28 N. Y. Supp., 189. (Complaint held to be sufficient, which alleged that a deed was made without consideration with intent to hinder, delay and defraud the grantor's creditors, and particularly the plaintiff, and to prevent plaintiff or any other creditor from levying on the property, and the grantor was possessed of no other property out of which plaintiff's demand could be satisfied. It is not necessary in such a case, to allege that the grantor had no other property at the time of the conveyance.) Stafford t. Merrill, 62 Hun, 144; s. C., 41 State Rep., 230 ; 16 N. Y. Supp., 467. (The omission to charge a fraudulent intent in making an assignment for the benefit of creditors is not fatal, where facts are alleged which show the assignment to be fraudulent in law, because of excessive preferences therein.) Pittsfield Nat. Bank v. Tailer, 14 N. Y. Supp., 557 ; s. c., State Rep., 895. (A complaint alleging that the assignment was null and void on its face and that it was made with the intent to hinder, delay and defraud creditors does not contain two causes of action, which should be separately stated and numbered.) Durant v. Pierson, 8 N. Y. Supp., 904 ; S. C., 29 State Rep., 510. (Complaint held to be sufficiently definite and certain, which alleged that the assignment was fraudulent and void, and made and accepted with the intent to defraud creditors, without further avering the facts relied on to establish the intent.) McQueen v. New, 10 Misc., 251 ; s. C., 30 N. Y. Supp., 977; 63 State Rep., 232. (The words “fraudulent and void," when stated not as facts, but as inferences, are not admitted by demurrer.) North Carolina.-Smith v. Summerfield, 108 N. C., 284 ; s. C., 12 S. E. Rep., 997. (In an action by creditors to establish their claims and to set aside a fraudulent assignment, it is not necessary to attach copies of the deeds of assignment to the complaint.) North Dakota.- Paulson v. Ward, N. Da., 1894, 58 N. W. Rep., 792. (Grantors' fraud held to be sufficiently shown by a complaint alleging that they were insolvent, and were being pushed by their creditors, and that the conveyance was without consideration, and wholly voluntary, and made with the intent to hinder, delay and defraud the creditors of grantors.) South Carolina.-McGahan v. Crawford, South Carolina, 1893, 17 S. E. Rep., 561. (In an action to set aside as an illegal preference a conveyance made within ninety days before a general assignment, the petition was held to be demurrable for failing to allege that the grantee was creditor.)