Hall v. Eaton

25 Vt. 458

Opinion

The opinion of the Court was delivered by

Is ham, J.

The question in this case, arises on a general demurrer to the third count in the declaration, as it is not claimed that the other counts can he sustained, if this is found insufficient.

Upon the facts stated in this count, we have no doubt that the property was fraudulently held by the defendant, and that it might have been taken and held by the creditors of Chase. If a suit had been commenced, and the property attached, or if the defendant' had been charged as trustee, by any of the creditors of Chase, their debts might, in that way, have been secured; and courts of equity would have lent their aid in their behalf; or if proceedings had been instituted against the defendant personally, instead of the property, the statute imposes a penalty for being a party to a fraudulent judgment, or a fraudulent sale; either or all of these remedies might have been resorted to, by the plaintiff, and an ample remedy found in these usual and accustomed modes of relief.

It has been properly admitted in the argument of this case, that if the declaration is considered as merely charging the defendant with being a party to that fraudulent purchase and judgment, for the purpose of defrauding the plaintiff of his debt, this action cannot be sustained. It was so ruled in the case of Lamb v. Stone, 11 Pick. 526, in which it was held, “that an action on the case, for “ the fraud of the defendant, in purchasing personal property of “the plaintiff’s debtor, and aiding the debtor to escape, in order to “ prevent the plaintiff from enforcing payment of his claim, by at- “ taching the property or arresting the body of the debtor, cannot “ be sustained; and that the only remedy of the creditor is, either “ to attach the property fraudulently disposed of, or to attach it in “ the form of a trustee process.” The reasoning of Morton, J., is satisfactory, that no such action can be sustained, either on principle or sound policy. It is insisted, however, that this case is not of that character; that the gist of the action is the fraudulent combination and conspiracy of the defendant, with Chase, to secrete the property, and prevent the plaintiff from obtaining payment and security for his debt; for this conspiracy, it is claimed, this action can be sustained. Assuming that the declaration is in form sufficient for that purpose, it is still to be observed, that in all cases of a fraudulent sale of property, two or more persons are necessarily concerned, and a fraudulent intent and design necessarily exists between them; and if the facts stated in this count are sufficient to sustain such an action, then, in every case of a fraudulent transfer of property, this remedy may be adopted. If this action can be sustained by this creditor, it can be by each and all of the creditors of Chase, and a recovery had, and the amount recovered could not be applied in satisfaction of the claim against the debtor.

The most conclusive objection, however, to this form of action, arises from the consideration, that the acts complained of are alike injurious to all the creditors of Chase. The plaintiff has not been injured in any personal, individual right$ the injury is alike common to all the creditors. If the plaintiff, by an attachment, had acquired a specific lien on this property, or the right to have the application of this property made in payment of his debt, to the exclusion of other creditors, a different question would arise. Under such circumstances, the case of Adams v. Page, 7 Pick. 550, would seem to sustain the principle that an action on the case could be sustained, as also the cases of Yates v. Joyce, 11 Johns. 136, and Smith v. Toustall, Carth. 3. In this ease, the plaintiff has lost no lien on this property, for he had nono; no attachment has been defeated, for none has been made; he has no personal or individual claim or interest in this property, for he never had acquired either ; and without this consideration, no action of this character has ever been sustained. In Com. Dig. action upon the case, B. 2, it is said that this action cannot be sustained where the injury is alike common to all, and where no right peculiar to the party has been affected. The case of Moody v. Burton, 27 Maine, 427, sustains the same principle, and seems to be undistinguishable from the present case. That was an action on the case against the defendants, for being parties to a fraudulent conveyance of property, made for the purpose and with intent to defraud creditors. From the opinion of Shepley, J., it appears that the last count contained the same averment that is made in this, “ that the defendants cor- “ ruptly did combine and conspire together to defraud the plaintiff “ by the acts aforesaid,” so that if the present case is an action for an unlawful combination and conspiracy, equally so was that; and in the argument of that case, the counsel placed their right to sustain the action, on the specific ground, that case for conspiracy will lie, for conspiring with a debtor, to prevent a creditor from attaching such debtor’s property, and thereby defraud him of his debt. Shepley, J.,-remarked, “that where a fraudulent conveyance of “property is made for the purpose and with the intent to defraud “ creditors, an action on the case cannot be sustained to recover “ damages for that cause, by one of the creditors, against the parties “to such fraudulent conveyance;” and upon the averment that the defendants “ corruptly combined and conspired together for that “purpose,” he remarked, that it was not essential in the case, for .“ the denial of the plaintiff’s right to maintain the action has not “arisen-out of defective or insufficient averments, but out of the “ insufficiency of the facts stated to enable him to maintain it;” and in conclusion, the general doctrine is sustained, that the result would not be different upon the principles there stated, if the combination and conspiracy appeared in the case, as the plaintiff has received no personal injury peculiar to himself. The same rule and the same distinction was sustained in the case of Lamb v. Stone, 11 Pick. 526; the court there remarked, “that the declaration did “not contain a distinct averment of a conspiracy, but simply that “ the defendant was a party to a fraudulent purchase of property, “ to prevent the plaintiff as creditor from securing his debt.” The court remarked, “ that it will be perceived that their reasoning in “ the case would apply to such an action, as well as the one before “ them, and in either case the action could not be sustained.” From these authorities, we think this action cannot be supported; for while the law provides a remedy for every injury, yet forms of action, new in principle and impression, are not to be favored, when an ample remedy can be had in established precedents. The observations of Morton, J., in the case of Lamb v. Stone, before cited, have peculiar force and applicability; “the party may have redress “by any of the forms of action now known and practised. It “ would be unwise and unsafe to sanction an untried one, the practical operation of which cannot be fully foreseen. The court will “ adopt a new remedy to prevent the failure of justice, or to enforce “ the settled principles of law; but never, when justice can be “ reached by any of the remedies already known to the law.” We think, therefore, that an action in this form cannot be sustained, and that the judgment of the County Court must be affirmed.