Mr. Justice Elliott
delivered the opinion of the court.
1. The only matter assigned for error is, that the complaint does not state facts sufficient to constitute a cause of action. The defendant did not demur nor otherwise object to the complaint for any cause in the trial court, nor was any motion in arrest of judgment interposed. An objection made for the first time in an appellate court is viewed with judicial disfavor, even though the objection be one which the code permits to be raised at any time.
In Gelston v. Hoyt, 13 Johns. (N. Y.) 575, Chancellor [301]*301Kent said: “ A party acts against good conscience if he will not come forward and disclose his reasons, when called upon by the proper tribunal, but reserves himself for another court, and for the cold, hard purpose of accumulating costs, or of depriving his adversary of the opportunity of correcting his error.”
In determining the sufficiency of pleadings upon demurrer,' the rule at common law was that the allegations should be construed most strongly against the pleader. After verdict, however, the rule was different; a fortiori, on appeal or error wrhere no objection has been interposed at nisi prius. In the present case, therefore, if, in any aspect, the complaint states facts sufficient, in substance, to constitute a cause of action, the judgment of the district court must be upheld. Code, §§ 78, 442, 443; Bliss on Code Pleading, §§ 435-438, et seq.
2. The complaint under consideration is not, strictly speaking, a creditor’s bill. The action was brought to cancel a deed to real estate on the ground that the deed was and is fraudulent and void as to plaintiff, a creditor of the grantor. The action is of such a nature that it was not necessary that the complaint should allege the issuance of execution in the original suit and a return nulla bona; nor was it necessary that plaintiff should have been in possession of the land in order to maintain the action. These questions have been much considered by this court; and the doctrine has been announced that, “ where a party can only assert an equitable title to real property, though his interest may be full and complete, — as where there is some trust to be declared, or legal title to be extinguished, some instrument not void on its face to be canceled or corrected, or other obstacle to be removed before his rights can be made manifest, — he ma}T, though out of possession, under a system of procedure like ours, have his equitable remedy, and may unite with it any appropriate cause of action through which he may secure the full and adequate relief to which he may be entitled.” And, further, “ that a person having procured a sheriff’s deed to land, based upon valid proceedings, may maintain an action [302]*302to set aside and cancel a deed given by the judgment debtor before the recovery of the judgment with intent to defraud the judgment creditor; and it is not necessary that such party should be in possession of the premises at the time of instituting such action. A judgment creditor desiring to set aside a supposed fraudulent deed of real estate may bring his action therefor to test the validity of the deed before attempting to subject the premises to execution sale; or the purchaser, after such sale, may bring his action to remove the cloud from the title by canceling the supposed fraudulent deed, and to recover possession of the premises.” See Stockgrowers' Bank v. Newton, 13 Colo. 249, and cases there cited.
3. This cause was tried upon the pleadings and evidence given in open court. The findings and decree were in favor of plaintiff. Appellant has not by bill of exceptions preserved the evidence nor any objection or exception to the proceedings in the trial court. It must, therefore, be presumed that the proceedings were regular, and that the evidence fully sustained all the material allegations, of the complaint. In this respect the case is essentially different from the case of Burdsall v. Waggoner, 4 Colo. 258, so much relied upon by appellant. In the Burdsall case, Mr. Justice Stone delivering the opinion of the court, said:
“ The bill charged the grantee with knowledge of, and participation in, the fraudulent intent of the grantor, as well as a total want of any consideration whatever. These allegations are denied in the separate answers of the defendants, and no proof was made, nor was any evidence attempted to be introduced touching any of these averments.”
4. In the present case the complaint alleges and (as must be presumed) the evidence fully proved that the conveyance was made by the father to the son without consideration, that it was made when the grantor was “ largely indebted and in failing circumstances, unwilling and unable to pay his debts,” that it was made with intent on the part of the grantor to cheat and defraud his creditors, and that the grantee received the conveyance with notice of such fraud[303]*303ulent intent. Under such circumstances, it is immaterial whether the indebtedness to plaintiff accrued before or after the making of the fraudulent conveyance. The deed having been made without consideration and with intent to cheat and defraud the creditors of the grantor, was fraudulent and void as to subsequent as well as existing creditors; and so the land in the hands of the fraudulent grantee was as much subject to the attachment and execution of plaintiff as though the fraudulent deed had never been executed. As to plaintiff, the land still belonged to the grantor. Marston v. Marston, 54 Me. 476; Weightman v. Hatch, 17 Ills. 287; Newman v. Willetts, 52 Ills. 101.
In Wilcoxen v. Morgan, 2 Colo. 478, Mr. Justice Wells, delivering the opinion of the court, said: “A conveyance which is not only voluntary, but animated by a positive and active intent to defraud existing creditors, is void, not only as to these, but as to subsequent creditors as well.” See the cases there cited; also, Gregory v. Filbeck, 12 Colo. 382.
5. The separate property of each defendant in the first suit was subject to attachment and execution to satisfy plaintiff’s judgment against the firm. Partners are jointly and severally liable for the debts of the partnership; and by statute, in this state, every interest in land, legal and equitable, is subject to levy and sale under execution, unless occupied as a homestead. General Statutes, § 1883; Randolph v. Daly, 16 N. J. Eq. 316.
6. It was not necessary to allege the insolvency of each individual member of the firm of Mulock Bros. & Co., nor to allege in hcec verba, that the fraudulent conveyance complained of embarrassed plaintiff in obtaining his deed or judgment. The complaint states that there was no partnership property to be found upon which to levy plaintiff’s attachment ; and it may be readily gathered from the allegations of the complaint that plaintiff was, and has been, embarrassed in collecting his debt by reason of the fraudulent conveyance. Dunham v. Cox, 10 N. J. Eq. 184. Direct and positive averments showing plaintiff’s embarrassment would doubtless [304]*304have been made if the complaiut had been challenged on that ground in the trial court.
In Henry v. Travelers’ Ins. Co., 16 Colo. 184, it is said: “Mere uncertainty or ambiguity in the averments of the petition should not be held sufficient to defeat the right of intervention without giving the usual opportunity to amend.”
Free access — add to your briefcase to read the full text and ask questions with AI
Mr. Justice Elliott
delivered the opinion of the court.
1. The only matter assigned for error is, that the complaint does not state facts sufficient to constitute a cause of action. The defendant did not demur nor otherwise object to the complaint for any cause in the trial court, nor was any motion in arrest of judgment interposed. An objection made for the first time in an appellate court is viewed with judicial disfavor, even though the objection be one which the code permits to be raised at any time.
In Gelston v. Hoyt, 13 Johns. (N. Y.) 575, Chancellor [301]*301Kent said: “ A party acts against good conscience if he will not come forward and disclose his reasons, when called upon by the proper tribunal, but reserves himself for another court, and for the cold, hard purpose of accumulating costs, or of depriving his adversary of the opportunity of correcting his error.”
In determining the sufficiency of pleadings upon demurrer,' the rule at common law was that the allegations should be construed most strongly against the pleader. After verdict, however, the rule was different; a fortiori, on appeal or error wrhere no objection has been interposed at nisi prius. In the present case, therefore, if, in any aspect, the complaint states facts sufficient, in substance, to constitute a cause of action, the judgment of the district court must be upheld. Code, §§ 78, 442, 443; Bliss on Code Pleading, §§ 435-438, et seq.
2. The complaint under consideration is not, strictly speaking, a creditor’s bill. The action was brought to cancel a deed to real estate on the ground that the deed was and is fraudulent and void as to plaintiff, a creditor of the grantor. The action is of such a nature that it was not necessary that the complaint should allege the issuance of execution in the original suit and a return nulla bona; nor was it necessary that plaintiff should have been in possession of the land in order to maintain the action. These questions have been much considered by this court; and the doctrine has been announced that, “ where a party can only assert an equitable title to real property, though his interest may be full and complete, — as where there is some trust to be declared, or legal title to be extinguished, some instrument not void on its face to be canceled or corrected, or other obstacle to be removed before his rights can be made manifest, — he ma}T, though out of possession, under a system of procedure like ours, have his equitable remedy, and may unite with it any appropriate cause of action through which he may secure the full and adequate relief to which he may be entitled.” And, further, “ that a person having procured a sheriff’s deed to land, based upon valid proceedings, may maintain an action [302]*302to set aside and cancel a deed given by the judgment debtor before the recovery of the judgment with intent to defraud the judgment creditor; and it is not necessary that such party should be in possession of the premises at the time of instituting such action. A judgment creditor desiring to set aside a supposed fraudulent deed of real estate may bring his action therefor to test the validity of the deed before attempting to subject the premises to execution sale; or the purchaser, after such sale, may bring his action to remove the cloud from the title by canceling the supposed fraudulent deed, and to recover possession of the premises.” See Stockgrowers' Bank v. Newton, 13 Colo. 249, and cases there cited.
3. This cause was tried upon the pleadings and evidence given in open court. The findings and decree were in favor of plaintiff. Appellant has not by bill of exceptions preserved the evidence nor any objection or exception to the proceedings in the trial court. It must, therefore, be presumed that the proceedings were regular, and that the evidence fully sustained all the material allegations, of the complaint. In this respect the case is essentially different from the case of Burdsall v. Waggoner, 4 Colo. 258, so much relied upon by appellant. In the Burdsall case, Mr. Justice Stone delivering the opinion of the court, said:
“ The bill charged the grantee with knowledge of, and participation in, the fraudulent intent of the grantor, as well as a total want of any consideration whatever. These allegations are denied in the separate answers of the defendants, and no proof was made, nor was any evidence attempted to be introduced touching any of these averments.”
4. In the present case the complaint alleges and (as must be presumed) the evidence fully proved that the conveyance was made by the father to the son without consideration, that it was made when the grantor was “ largely indebted and in failing circumstances, unwilling and unable to pay his debts,” that it was made with intent on the part of the grantor to cheat and defraud his creditors, and that the grantee received the conveyance with notice of such fraud[303]*303ulent intent. Under such circumstances, it is immaterial whether the indebtedness to plaintiff accrued before or after the making of the fraudulent conveyance. The deed having been made without consideration and with intent to cheat and defraud the creditors of the grantor, was fraudulent and void as to subsequent as well as existing creditors; and so the land in the hands of the fraudulent grantee was as much subject to the attachment and execution of plaintiff as though the fraudulent deed had never been executed. As to plaintiff, the land still belonged to the grantor. Marston v. Marston, 54 Me. 476; Weightman v. Hatch, 17 Ills. 287; Newman v. Willetts, 52 Ills. 101.
In Wilcoxen v. Morgan, 2 Colo. 478, Mr. Justice Wells, delivering the opinion of the court, said: “A conveyance which is not only voluntary, but animated by a positive and active intent to defraud existing creditors, is void, not only as to these, but as to subsequent creditors as well.” See the cases there cited; also, Gregory v. Filbeck, 12 Colo. 382.
5. The separate property of each defendant in the first suit was subject to attachment and execution to satisfy plaintiff’s judgment against the firm. Partners are jointly and severally liable for the debts of the partnership; and by statute, in this state, every interest in land, legal and equitable, is subject to levy and sale under execution, unless occupied as a homestead. General Statutes, § 1883; Randolph v. Daly, 16 N. J. Eq. 316.
6. It was not necessary to allege the insolvency of each individual member of the firm of Mulock Bros. & Co., nor to allege in hcec verba, that the fraudulent conveyance complained of embarrassed plaintiff in obtaining his deed or judgment. The complaint states that there was no partnership property to be found upon which to levy plaintiff’s attachment ; and it may be readily gathered from the allegations of the complaint that plaintiff was, and has been, embarrassed in collecting his debt by reason of the fraudulent conveyance. Dunham v. Cox, 10 N. J. Eq. 184. Direct and positive averments showing plaintiff’s embarrassment would doubtless [304]*304have been made if the complaiut had been challenged on that ground in the trial court.
In Henry v. Travelers’ Ins. Co., 16 Colo. 184, it is said: “Mere uncertainty or ambiguity in the averments of the petition should not be held sufficient to defeat the right of intervention without giving the usual opportunity to amend.”
In this connection the language of the opinion in Schilling v. Rominger, 4 Colo., at page 106, is also in point. That suit arose when suits in chancery and actions at law were necessarily separate, distinct and independent proceedings. Hence, the objection that the complaint did not contain an averment, “ that complainant was without a full, complete and adequate remedy at law,” was considered an objection to the jurisdiction of the chancery court. Under the present practice such an objection is not so classified. The first ground of demurrer under the Code (sec. 50) is, “ that the court has no jurisdiction of the person of the defendant or the subject of the action.” The objection, “that the complaint does not state facts sufficient to constitute a cause of action,” is the sixth ground of demurrer. The distinction between these grounds of objection is sometimes lost sight of by those accustomed to the nomenclature of our former practice. Under the present practice, it certainly does not follow, because a complaint does not state facts sufficient to constitute a cause of action, that the court has no jurisdiction of the subject of the action. If the Schilling er - Hominger ease had arisen under the code, the objection to the complaint would not have been considered jurisdictional, and being grounded upon the absence of form in the averments would not have prevailed, because made for the first time in the appellate court, thus depriving plaintiff of an opportunity for amendment.
In our opinion, none of the objections urged by counsel against the complaint are available on this appeal. The judgment of the district court is accordingly affirmed.
Affirmed.