Wright, C. J.
To reverse this decree, appellants rely upon two -grounds. The first is, that the court below erred in striking their answers from the files, and refusing to set aside the default. In the second place, it is urged, that complainant’s bill, though unanswered, did not authorize or justify the decree rendered.
To sustain the first position, we are referred to section 1827 of the Code, which provides that a default may be set aside on such terms as the court may deem just, but not unless an affidavit of merits be filed, and a reasonable excuse be shown for having made such default. In this case, the only question to be considered is, whether a reasonable excuse is shown for having made default, for in other respects the affidavits fully comply with the requirements of the law. Complainant insists that this court cannot review the action of the District Court, in granting or refusing an application of this character. Without determining this question, it is sufficient to say that we see no sufficient reason for interfering with the discretion exercised in the case before us. Such applications are addressed to the grace and favor of the court, and are not granted as a matter of-course. Each case must be determined to a great extent, upon its own circumstances, and no precise rule can be given, which shall govern the interference of the chancellor to relieve a party from the consequences of his default. The relief, however, should never be granted when the default is the consequence of the party’s own negligence. Wooster v. Woodhull, 1 Johns. Ch. 538; Parker v. Grant, Ib. 630; Rucker v. Howard,, 2 Bibb, 166. And in view of these principles, we repeat, that we cannot say that respondents made a sufficient showing to entitle them to have the default set aside. According to the rule, [555]*555they were to answer within sixty days. They did not answer till long after that time, and then not until complainant had filed his motion for judgment for want of an answer. From this showing, it appears that their attorneys, or those upon whom they relied for drawing their answers, resided in Dubuque, a distance of some sixty miles; that said attorneys were unacquainted with the post-office address of -respondents, and could not prepare their answers without a conference with them. Some forty or fifty days after the adjournment of the term, at which the rule to answer was entered, their attorneys wrote to the resident attorney for information as to the residence of said respondents, requesting him to have them go to Dubuque, but he also was unacquainted with their post-office address, though he knew where they resided, which he says was some eight or twelve miles from his residence, and that he was so engaged that he could not get them word, nor see them until some time in July subsequent to the receipt of the letter. In addition to these averments, there are some general statements that affiants believe that due diligence has been used. By such general averments we cannot be governed, but must look alone to what has been done. Now, these attorneys were present and 1 consented to the entry of the rule to answer. The parties were also there; one of the attorneys resided all the time in the same county. It was understood that attorneys residing sixty miles distant, were to draw the answers, -and this they could not do, without the presence of their client. They separate, however, neither attorney knowing the post-office address of his client. After this, the respondents are entirely inactive, and do nothing towards filing their answers as required. Some ten or twenty days before the expiration of the time, a letter is written, inquiring for respondents, -and the attorney to whom it is addressed, not knowing their address,' fails to inform them that they must go to Dubuque. He knew where they resided, however, and yet with the knowledge that the time for answering had nearly expiredj he takes no efficient steps to advise them that they were required at Dubuque. He does see them, however, in July, [556]*556some thirty days after the answers should have been filed, and still there is delay until September, when court convened. And even then their answers are not filed until complainant moves for a default. If such a showing can be regarded as a reasonable excuse for having made default, within the meaning of the Code, then we must acknowledge that we do not know what excuse would not be sufficient. There appears to us to have been a want of proper attention to what was required of them, on the part of both counsel and clients. To hold the respondents answerable for the consequences resulting from Such want of attention, may operate hardly in this particular case, but it is better so, than to allow a hard case to make either a bad law, or a bad precedent. In Brown v. Hollenbeck, 2 G. Greene, 318, referred to by appellants, the defendant’s answer was filed within the time required by the rules of the court, and on the day previous to that on which judgment by default was entered. The distinction between that case and the one before us, is too apparent to require further comment.
Again; the fact that the answers were filed before the motion for judgment by default was decided, could not of itself deprive the complainant of his right to such judgment. At any time after the expiration of the sixty days, complainant was entitled, in the absence of any sufficient excuse for respondent’s failure to answer, to a default, and after he had by motion claimed this right, it was the respondent’s duty to satisfy the court of the sufficiency and reasonableness of his excuse. A court might be satisfied with a less showing where the answer is exhibited before the entry of the decree, than where it comes in after; but there must be in either case, a reasonable excuse for the default, and the filing of the answer alone is not sufficient. Such a reasonable excuse, does not appear in this case.
We then come to the consideration of the second consideration made by appellants, and under this head several objections are made, which we will proceed to notice in the order presented.
Before doing so, however, it is well to settle and consider [557]*557some general rules which may guide us in determining the questions raised.
Where a bill is taken as confessed, we understand that all distinct and positive allegations are to be taken as true, without proof, but if the allegations are indefinite, or the demand of the complainant is in its nature uncertain, the certainty requisite to a proper decree must be afforded by proof. William v. Corwin, Hopk. 471; Marshall v. Tenant, 2 J. J. Marsh. 155 ; Pegg v. Davis, 2 Blackf. 281; Platt v. Judson, 3 Ib. 235; Fellows v. Shelmure, 5 Ib. 48; Landon v. Ready, 1 Sim. & Stuart, 44; Stroblet v. Lovejoy, 8 B. Mon. 135.
In the next place, we remark, that we understand that it is essential, in order to sustain any conveyance as against either existing or subsequent creditors, that it shall be bona fide. In other words, whether a conveyance be fraudulent or not, must depend upon its being made upon a' good consideration and bona fide. It is not sufficient that it be upon a good consideration or bona fide. It must be both, and by a good consideration as here used, we mean one that is either meritorious or valuable.
Free access — add to your briefcase to read the full text and ask questions with AI
Wright, C. J.
To reverse this decree, appellants rely upon two -grounds. The first is, that the court below erred in striking their answers from the files, and refusing to set aside the default. In the second place, it is urged, that complainant’s bill, though unanswered, did not authorize or justify the decree rendered.
To sustain the first position, we are referred to section 1827 of the Code, which provides that a default may be set aside on such terms as the court may deem just, but not unless an affidavit of merits be filed, and a reasonable excuse be shown for having made such default. In this case, the only question to be considered is, whether a reasonable excuse is shown for having made default, for in other respects the affidavits fully comply with the requirements of the law. Complainant insists that this court cannot review the action of the District Court, in granting or refusing an application of this character. Without determining this question, it is sufficient to say that we see no sufficient reason for interfering with the discretion exercised in the case before us. Such applications are addressed to the grace and favor of the court, and are not granted as a matter of-course. Each case must be determined to a great extent, upon its own circumstances, and no precise rule can be given, which shall govern the interference of the chancellor to relieve a party from the consequences of his default. The relief, however, should never be granted when the default is the consequence of the party’s own negligence. Wooster v. Woodhull, 1 Johns. Ch. 538; Parker v. Grant, Ib. 630; Rucker v. Howard,, 2 Bibb, 166. And in view of these principles, we repeat, that we cannot say that respondents made a sufficient showing to entitle them to have the default set aside. According to the rule, [555]*555they were to answer within sixty days. They did not answer till long after that time, and then not until complainant had filed his motion for judgment for want of an answer. From this showing, it appears that their attorneys, or those upon whom they relied for drawing their answers, resided in Dubuque, a distance of some sixty miles; that said attorneys were unacquainted with the post-office address of -respondents, and could not prepare their answers without a conference with them. Some forty or fifty days after the adjournment of the term, at which the rule to answer was entered, their attorneys wrote to the resident attorney for information as to the residence of said respondents, requesting him to have them go to Dubuque, but he also was unacquainted with their post-office address, though he knew where they resided, which he says was some eight or twelve miles from his residence, and that he was so engaged that he could not get them word, nor see them until some time in July subsequent to the receipt of the letter. In addition to these averments, there are some general statements that affiants believe that due diligence has been used. By such general averments we cannot be governed, but must look alone to what has been done. Now, these attorneys were present and 1 consented to the entry of the rule to answer. The parties were also there; one of the attorneys resided all the time in the same county. It was understood that attorneys residing sixty miles distant, were to draw the answers, -and this they could not do, without the presence of their client. They separate, however, neither attorney knowing the post-office address of his client. After this, the respondents are entirely inactive, and do nothing towards filing their answers as required. Some ten or twenty days before the expiration of the time, a letter is written, inquiring for respondents, -and the attorney to whom it is addressed, not knowing their address,' fails to inform them that they must go to Dubuque. He knew where they resided, however, and yet with the knowledge that the time for answering had nearly expiredj he takes no efficient steps to advise them that they were required at Dubuque. He does see them, however, in July, [556]*556some thirty days after the answers should have been filed, and still there is delay until September, when court convened. And even then their answers are not filed until complainant moves for a default. If such a showing can be regarded as a reasonable excuse for having made default, within the meaning of the Code, then we must acknowledge that we do not know what excuse would not be sufficient. There appears to us to have been a want of proper attention to what was required of them, on the part of both counsel and clients. To hold the respondents answerable for the consequences resulting from Such want of attention, may operate hardly in this particular case, but it is better so, than to allow a hard case to make either a bad law, or a bad precedent. In Brown v. Hollenbeck, 2 G. Greene, 318, referred to by appellants, the defendant’s answer was filed within the time required by the rules of the court, and on the day previous to that on which judgment by default was entered. The distinction between that case and the one before us, is too apparent to require further comment.
Again; the fact that the answers were filed before the motion for judgment by default was decided, could not of itself deprive the complainant of his right to such judgment. At any time after the expiration of the sixty days, complainant was entitled, in the absence of any sufficient excuse for respondent’s failure to answer, to a default, and after he had by motion claimed this right, it was the respondent’s duty to satisfy the court of the sufficiency and reasonableness of his excuse. A court might be satisfied with a less showing where the answer is exhibited before the entry of the decree, than where it comes in after; but there must be in either case, a reasonable excuse for the default, and the filing of the answer alone is not sufficient. Such a reasonable excuse, does not appear in this case.
We then come to the consideration of the second consideration made by appellants, and under this head several objections are made, which we will proceed to notice in the order presented.
Before doing so, however, it is well to settle and consider [557]*557some general rules which may guide us in determining the questions raised.
Where a bill is taken as confessed, we understand that all distinct and positive allegations are to be taken as true, without proof, but if the allegations are indefinite, or the demand of the complainant is in its nature uncertain, the certainty requisite to a proper decree must be afforded by proof. William v. Corwin, Hopk. 471; Marshall v. Tenant, 2 J. J. Marsh. 155 ; Pegg v. Davis, 2 Blackf. 281; Platt v. Judson, 3 Ib. 235; Fellows v. Shelmure, 5 Ib. 48; Landon v. Ready, 1 Sim. & Stuart, 44; Stroblet v. Lovejoy, 8 B. Mon. 135.
In the next place, we remark, that we understand that it is essential, in order to sustain any conveyance as against either existing or subsequent creditors, that it shall be bona fide. In other words, whether a conveyance be fraudulent or not, must depend upon its being made upon a' good consideration and bona fide. It is not sufficient that it be upon a good consideration or bona fide. It must be both, and by a good consideration as here used, we mean one that is either meritorious or valuable. It is true, that “ there is nothing inequitable or unjust in a man’s making a voluntary conveyance or a gift, either to a wife or child, or even to a stranger, if it is not at the time prejudicial to the rights of any other persons, or in furtherance of any meditated design of future fraud or injury to other persons.
If there is any design of fraud or collusion, or intent to deceive third persons, in such conveyances, although the party be not indebted, the conveyance will be held utterly void, as to subsequent, as well as present creditors ; for it is not bona fide.” Story’s Eq. Juris. §§ 353, 856.
Again, we understand, that while every material fact essential to his recovery should be stated by a complainant in his bill, yet it is not necessary to state therein minutely all the circumstances which may conduce to prove the general charge. “ Thus, for example, if a bill is brought to set aside an award, bond or deed, for fraud, imposition, partiality or undue practice, it is not necessary in the bill to charge every particular circumstance.; for that is a matter of evidence, [558]*558every part of which need not be charged.” Story’s Equity Pleadings §§ 28, 252; 1 Daniell’s 412, note 1, and the authorities there cited. De Louis v. Meek, 2 G. Greene, 55.
A court w ill also pay attention and give credit to its own records and- proceedings, without further testimony to establish them, than-the production of the' proceeding itself; and especially is this true, where such proceedings have taken place in the same cause or in another cause, between-thesameparties or those under whom they claim. Under our practice, the party wishing to use such records and proceedings, produces them on- the hearing, without proof of their genuineness. And where by his bill, he refers'to such records and proceedings, and prays that they may be taken as a part thereof, they stand as exhibits, to-which he' can refer, and upon which he may rely on the final hearing, without proof' of their genuineness, unless they shall be in some manner' denied or impeached.
And finally, where from a decree pro confessoj it" appears-that the court below was satisfied that all things-necessary to entitle the complainant to the relief sought, were proved, this court will not presume that there was a want of evidence to make those'things certain and definite, which might by the bill, unaided by proof; appear- uncertain and indefinite. In some instances, it would be the duty of the court, before rendering such a decree, to refer the matter to a- master; to take an account or testimony, or the court might on its motion, continue the cause for testimony, by depositions to be heard at a subsequent term. Where this is not done,-however, and! th'e cause is heard at the same term, and the decree recites that certain matters essential" to its rendition were made to appear, the court will presume that- they were' made to appear in the proper manner, and that the court rendering such decree, performed its duty. Grubb v. Crane, 4 Scam. 158; Having thus briefly stated what we understand to be some of the principles applicable to the case before us-, we proceed to consider the objections to complainant’s bill, and the decree of the court below.
And these are, that. the bill does not- aver with sufficient [559]*559distinctness, that the complainant was a creditor of Adam ■ Kramer, at the time of the conveyance to the son, — that it does not show that the father was at the time largely or otherwise indebted — that it nowhere appears that the transaction between the father and son, and the son and Graham, were in bad faith — and finally, that it does not show that an execution had been issued and returned nulla Iona, before the levy upon and sale of this land.
It may be conceded, that the bill does not aver, in so many words, that complainant was a creditor of the father at the time of the conveyance to the son. It is averred; however, that the land was entered by the father in his own name, that at the time, complainant was a creditor; that after the conveyance, the father was-sued, and judgment obtained in favor of complainant, but whether upon the debt existing at the time of the entry, is not distinctly stated: But it is averred, that after the entry, and before the judgment, without any good or valuable consideration as against his creditors, the father conveyed to the son ; that at the time of the judgment, and for a long time before, he lived on said land, cultivated it as a farm, paid the taxes on the same, and used and sold the crops raised thereon. It is also averred, that the deed from the son to Graham, was without any consideration, and was fraudulent and void against petitioner; that the father remained in possession long after the deed was made to Graham, and that he, (Graham,) has.admitted that he held the title thereto for the benefit of Adam Kramer. It is then distinctly averred, that the deeds from Adam to John, and from John to Graham, are void as against complainant; that they are fraudulent for want of consideration as against him, a creditor of the said Adam, when he made the entry, and are a cloud upon his title. By the bill also, the complainant refers to the records and proceedings of the cause in which judgment was rendered against Adam Kramer, as on file in that court, and makes them a part of his petition. In addition to all these things, the decree recites that it was made to appear to the court, that the judgment was made as charged; that an execution issued, was levied, the land sold, and the [560]*560sheriff’s deed made at the times and under the circumstances set forth in the bill; that Adam Kramer had fraudulently conveyed said tract of land to John, and John to Graham; that as against the complainant, said deeds were fraudulent and void; and that said land was held by said Graham, in fraud of the right of said complainant.
Now, if the bill was subject to the charge of indefiniteness and uncertainty, we think the objection entirely fails when we look to the decree and bear in mind the presumption that arises from what is therein stated. But by the bill the charge of fraud is clearly and distinctly made, and it is as clearly stated, that the conveyances were made without any consideration to support them, and were, therefore, fraudulent and void as against complainant. Suppose these.averments had been admitted by the answers of respondents, what difficulty would there have been in rendering a decree in accordance with the prayer of the bill. It appears to us, that there could have been none. And is there any more difficulty where the bill is taken for confessed for want of an answer, and especially when the decree recites that these matters were made to appear to the court. How they were made to appear, it is true, is not shown. It seems that the court heard the cause at the same term, without referring it to a master or continuing it for taking testimony. To this course, we can see no" objection. And having thus heard it, we are bound to presume, in the absence of any showing to the contrary, that the testimony was sufficient, and that those things were properly shown and made to appear, which are recited in the decree. They may have been made manifest by the records and proceedings in the original cause, which are referred to and made a part of the bill, but which the appellant has not brought up with the record now before us. But whether in this method or some other, it is sufficient to say, that the decree does clearly show that the alleged conveyances were shown to be fraudulent and in fraud of complainant’s rights. This reference to the bill and decree, disposes of all the objections stated, except the one that the bill does not aver, nor is there anything to show, that an execu[561]*561tion had been returned nulla Iona, prior to the levy upon and sale of this land. However the rule on this subject may be, in the case of the ordinary hill filed by the creditor to disr cover and make subject to the payment of his debt, the .equitable, assets of the debtor, is such averment and proof necessary where the execution has been satisfied in whole or in .part by .a sale of sqch equitable interest, whqn the purchaser comes into court to perfect his title or ,to .set aside a conveyance of .the property by the debtor tp third persons, which he alleges ,to be fraudulent ?
We think not. By,pur law, .a j udgipent is a ,li$n upon the ,real.estate of the defendant, .and by real estate is meant all .right-thereto, and interest therein, equitable as well as legal: "Sections' 2^85, "26.
Any property of the defendant,, except .sqch as is.exeippt ¿from execution; and by property is meant real, as well as personal property, or ..estate. .Sections 26,1903, 1901. According to these provisions,the equitable interest of a defendant,in laud or real estate, isas much.subject to execution and .sale, as this legal interest or estate. The creditor -lias his .election, .in the first instance, to levy .upon .and sell either. He does not in fact, need the aid of a court of equity,, to enable-him to subject the,equitable estate to his judgment. If ,he elects to proceed with his execution and, sell the property, .he purchases .at his own risk, .whatever interest ,the defendant may .have in-the property. When he seeks .to draw tp the equitable interest .sopureh.ased, the outstanding legal title, if he .shall-fail, he must ordinarily suffer the.consequences. We do not say, that he .may not after .the judgment, file his bill and have the .title settled, before.selling. -This we think-he.may do, butih,e is not bound to settle it in advance, but.may .sell under Ms execution,,becpnie the purchaser, and if there is.no redemption, then file Ms bill and quiet his tjtle. And in ..such a case, it is ,upt necessary.to have a return of nulla bona, before levying upon .and .selling .the equitable interest.
Nor do we say, that when he-has thus levied, the person holding the legal or adverse title, may not file his bill and [562]*562enjoin, the creditor from interfering with his property until the title is settled. We have no doubt but that this may be done.
Nor when it is said that a judgment is a lien upon the equitable as well as the legal interest of a defendant, do we wish to be understood as holding that such lien would affect the legal title of one who held the land Iona fide, without notice of such equity.
But when, as in this case, the person holding the legal title, is charged and proved to have obtained it in bad faith, with full notice of the rights of creditors, we think the lien •continues; and that the creditor may sell such property, and file his bill, after his purchase and the expiration of the time for redemption, without showing a return of nulla bona prior to his levy. Frakes v. Brown, 2 Blackf. 295.
Again, and finally, it is claimed, that the Code gives to the purchaser of real estate on execution, only twenty days after the expiration of the full time for redemption, to place •his deed upon record; and that the sale in this case being made in February, 1852, and the deed .not being recorded until November, 1854, Graham’s rights could not be affected by such deed.
The section of the Code relied on, is as follows: “ The purchaser of real estate on a sale on execution, need not place any evidence of his purchase upon record until twenty days after the expiration of the full time of redemption. Up to that time, the publicity of the proceedings is constructive notice of the rights of the purchaser, but no longer.” Section 1947. However much this section might operate to protect a bona fide purchaser without notice, who might take title after the twenty days therein named, it certainly cannot protect one who purchased with actual notice of the rights of the purchaser under the execution, or one who purchases with a fraudulent intention to defeat such execution purchaser’s title. In this case, as already shown, the averments are abundant that Graham was a fraudulent purchaser; and it is clearly stated that he has admitted since his purchase, that [563]*563he held the title for the benefit of Adam Kramer. If these things be true, then the failure of complainant to have his deed recorded within the time limited, cannot enure to the benefit of Graham.