« ForrigeFortsett »
pany, to recover stock alleged to have Code, $ 135. The effect of the service been fraudulently obtained from plain- is not involved in the discussion. tiffs in accordance with a scheme or con 2. The affidavit and complaint show spiracy between various of the defend that the subject of the action is personants, including the powder coinpanies, al property within the State, and the and also for the purpose of setting aside defendants claim an interest. certain judgments alleged to have been James C. Carter, for applt. collusively obtained against the U.S.
E. N. Taft, for respi. Blasting Oil Company, and also for the
Held, That the allegations of the purpose of setting aside certain assign- affidavit and the plaintiff's complaint in ments o' valuable patents from the the action on which the order of publiBlasting Oil Company to the Atlantic cation was founded are to be deemed to Powder Company.
be admitted for the purposes of this Both the Powder Companies were motion. That the appellants are proper non-resident corporations, existing un- and necessary parties to the action. The der the laws of the State of Califor-cause of action arose within this State. nia.
The judgment, the invalidity of which The application for the order direct- is asserted by the appellants, was recov. ing the publication of the summons was ered and entered in this State, and the obtained upon the complaint, in the transfer of the rights and franchises of action, and upon an affidavit showing the United States Oil Blasting Comthat after diligent inquiry, deponent has pany is alleged to have been made withbeen unable to find the President, Sec- in this State. The subject matter or retary, Cashier, Treasurer, Directors, or corpus of the action is the title to the Managing Agent of either of the said shares, rights and franchises of that companies, defendants. And on inform- Company as a New York corporation. ation and belief, stated that the officers Order of Special Term affirmed. of both companies resided in the State Opinion by Davis, P. J.; Daniels of California.
and Brady, J.J., concurring. The following are some of the points urged by the appellants on the appeal.
SU BROGATION. 1. That no couri should assume the
N. Y. COURT OF APPEALS. exercise of jurisdiction when it cannot
Cole, respt., v. Malcom, impl’d, &c. make its decree effective.
applt. 2. That the relief sought in the pres
Decided, June 6, 1876. ent case is really in personam. The de. cree could not be enforced upon any
The doctrine of subrogation is appli
cable where a party is compelled to one; nor would it be regarded as a
pay the debt of another to proíect his judicial determination in any other ju own rights or to save his own proprisdiction.
erty. (Reversing S. C. 7 Hun. 31; And on behalf of the respondent the
2 N. Y. Weekly Dig. 454.) following among other points were This is an appeal from an order of urged: 1. That the order directing the General Term, affirming an order of publication must stand, because it is Special Term, denying a motion made authorized under the provisions of the by defendant, M., to compel an assign
ment to him of certain judgments tled to be subrogated to all the rights held by one II. K. M., plaintiff's as- and securities of the judgment creditor. signee.
3 Paige, 117; 5 Id. 285; 11 Id.,21; It appeared that prior to December, 3 Barb. Ch. 169; 42 N. Y., 89; 6 Hun. 1869, defendant, C., owed plaintiff 632; 2 Brock., 159; 23 Penn. 294. $1,000. He at that time owned cer The equitable doctrine of subrogatain land, which he conveyed through a tion is applicable to cases where a party third party to his wife without any con- is compelled to pay the debt of a third sideration, for the purpose of vesting p rson to protect his own rights, or to the title in her. She died intestate, save his own property. 23 Penn. 294; in 1870, leaving no children, and the 2 Brock. 159. land passed to her heirs, of whom the Also held, That as the title of the defendant, M., was one, and he has heirs of C.'s wife is good as against C., since, by purchase,succeeded to the rights when they pay the judgments against of nearly all the others. Plaintiff com- him to save t'eir land they pay his menced an action against C., after the debts, and they should have subrogadeath of his wife, and recovered jud :- tion against him. ment for the amount of the debt due Order of General and Special Terms him, and issued execution thereon, and reversed, and motion granted. had the same returned unsatisfied. He
Opinion by Earl, J. then commenced an action against C. and the heirs of his wife, to set aside
FRAUD. the conv. yance of the land as a fraud upon the creditors of C., and obtained N. Y. SUPREME Court. GENERAL TERM
FOURTH DEPARTMENT. a judgment setting it aside, and declarig plaintiff's judgment a valid lien Ephraim H. Fish and John L. Lent, and charge upon the land, and ap- applts., v. Willoughby Payne, respt. pointing a receiver to sell the same to Decided April, 1876. pay plaintiff's judgment and the costs A mere purchase of goods, unaccoin. of the action. That judgment was af panied by any fraudulent representirmed by the General Term and the tations, is not of itself fravdulent, Commission of Appeals. The receiver
although the purchaser is insolvent
at the time, and has knowledge of the some time afterward advertised the land
fact. for sale, in pursuance of the judgment. Before the day of sale defendant, M.,
Appeal by plaintiffs from a judgment tendered to H. K. M., to whom plain of the County Court, in favor of plaintiff had assigned his judgments, the tiff's
, rendered in a justice's court.
The action was brought by the plainamount due, and demanded an assign
tifts against the defendant to recover inent thereof to him. H. K. M. refused to assign. Defendant thereupon damages for wrongfully and fraudulentobtained an order staying the sale and ly obtaining goods to the value of
$61.41, with the fraudulent intent and made this motion.
preconceived design not to pay the John R. Dos Passos, for applt.
plaintiffs for the same, and with the llamilton Odell, for respt.
wrongful intent to cheat and defraud Held, That defendant M. was enti- the plaintiffs of the same and the
value thereof. The plaintiffs had judg
On the 18th of November, 1872, ment in justice's court for the value of William Brice & Co. filed their petithe goods and costs.
tion in the Common Pleas of Stark On the trial it appeared that the county, against Henry Sommers and plaintiffs during a period of two years others, among whom was the defendhad sold the defendant goods at differ- ant Trimble, to foreclose a mortgage ent times, on a credit of thirty days; given by said Sommers on twenty acres that the defendant was a peddler, en- of land in Stark county, and on which gaged in selling goods bought of the they claimed $7,107.01. plaintiffs, and had paid his bills to the Defendant Trimble, in defense, plaintiffs up to the time of his last pur- claimed title to the premises by virtue of chase of the plaintiffs, amounting to a sale to him by the United States Col$61.41; he was insolvent, and had lector of the district for unpaid taxes knowledge of the fact, but did not dis- which had been assessed against plainclose his condition, although he received tiffs, defendant Sommers and others his usual credit of thirty days.
under the internal revenue laws, they L. J. Barrows, for applts.
being engaged in the distillery business Charles St. Searles, for respt. on the premises, and that such taxes
Held, That it was not fraudulent in were a superior lien to the mortgage. the defendant, although he was embar. Plaintiffs replied and joined issue, rassed, to make any effort he could to which was found in favor the defendrelieve himself from his embarrassment. ant Trimble, at the February term, Instead of preconceiving a design to de- 1874, and a decree was entered dismisfraud and cheat, which nowhere ap- sing plaintiffs' petition. pears in the tes imony, his purchase ap Plaintiffs thereupon appealed to the pears to have been made in the ordin- District Court of Stark county. ary business way. There was, there.
Od the 30th of September, 1975, fore, no frand committed by the defendant, and the judgment of the justice and whilst the cause was so pending, deshould have been for the defendant. fendant Trimble filed this petition for
()pinion by Noxon, J.; Mullin, P.J., removal to this court on the ground that and Smith, J., concurring.
the action affects the validity of the in
ternal revenue laws of the United REMOVAL OF CAUSE FROM
States. STATE TO FEDERAL COURT.
Plaintiffs now file their motion to U. S. Circuit Court—NORTHERN Dis- dismiss the petition TRICT OF Onio.
1. Because the case, prior to filWilliam Brice et al. v. Henry Som- ing the petition, had been finally heard
and tried, and a final decree entered Decided May 20, 1876.
therein, and therefore this court has no The act of Congress only authorizes a jurisdiction. removal where application therefor 2. Because of other manifest reasons is made before final hearing or trial, apparent on the face of the proceedings. and this means before final judg Held, That the application for rement in the court of original juris- moval is too late. It was held in Stediction,
venson v. Williams, 19 Wallace, 572, An application made after an appeal that a removal is only authorized where has been taken, is too late,
an application is made before tin:
mers et al.
judgment in the court of original juris contemplates an abandonment of the diction where the suit is brought. premises as tenantable property or This construction is supported by the
a vacancy for an unreasonable time.
Motion for a new trial. phraseology of the section of the statwie itself. It provides that where any
This policy, upon which this action civil action or suit is commenced, not wis brought, contained the following
condition: pending, in a State court, &c.
“ If the above mentioned premises These expressions of the act seem to refer alone to cases pending in the shall become vacant or unoccupied, and State court in which they were com
so remain with the knowlege of the as
without notice to or menced. Any other construction would, sured * in effect, make this an appellate court consent of this company in writing from the Court of Common Pleas, mak this policy shall be voic." ing the State District Court a mere
At the time of the fire the premises lighway to reach this court by way
had been unoccupied for thirty-three of appeal. To reach this court parties days. Plaintiff knew of it, but gave could try the case in Common Pleas, no notice to the company. During that and on defeat appeal to the District time she was engaged in endeavoring Court, and while the case was there to procure a tenant for the house and pending, file the petition here for re had not abandoned it. moval, and then retry the case in this
The court on the trial instructed the
jury that the plaintiff was entitled to court.
Counsel for defendant Trimble claim recover. ed that as two terms o: the Circuit
Foster, J.-The condition in the polCourt had been held after the filing of iey is a peculiar one, and its meaning is the transcript and pleadings and before
sorvewhat obscure. Just what meanthe motion to dismiss was filed, it was too late to do it then.
ing was intended to be conveyed by the leld, That if plaintiffs liad appeared words “ and so remain,” is not apparand pleaded in the case after such tiling, ent, but it is certain that they qualify it might be regarded as a waiver of the the condition, and make it something right to make the motion, and an ad: more than a mere temporary vacancy, mission of the jurisdiction of this court; such as would occur while one tenant is but as they did not do so, the objection moving out and another moving in. is not well taken.
The vacancy or want of an occupant, Motion to dismiss sustained.
of itself, however brief, is not enough Opinion by Welker, J.
to avoid the policy, but the vacancy must remain so.
It must be either an FIRE INSURANCE. abandonment of the premises as tenU. S. CircuiT COURT-DISTRICT OF
antable property, or the vacancy must
have continued an unreasonable time. KANSAS.
When there is doubt in the condition Ann Kelly v. Home Insurance Com- restricting the liability of the company, pany of New York. (June, 1875.) the construction most beneficial to the A condition in a policy that if the premises sliould be adopted. 32 N. Y.
premises shall become vacant or un- 405. occupied and so remain with the In this case, whichever construction knowledge of the assured, without we adopt in interpreting the policy, I notice to and consent of the company cannot see that the company ca: avoid in writing, the policy should be void, its liability.
If it contemplates an abandonment selling, exchanging, and building upon of the premises, this is not such a case, the property, he increased its value so for there was no abandonment.
that it is now worth $20,000. She did If its liability was to terminate on the no more than contribute $3,000 towards the vacancy continuing an unreasona- the purchase money, and consult with ble length of time, then I could not him in regard to the property; or, in hold that an unreasonable time had her own words, she did such things “as transpired. It the company desired to it was necessary and proper for a lady limit the time of its liability to thirty to do.” days, it was very casy for them to have When the husband filed his petition expressed it in plain and unmistakable in bankruptcy, two years after the last language.
purchase, his schedule was barren of any Motion overruled.
Held, That when the title to real esBANKRUPTCY. RIGHT OF AS-tate is conveyed to a married woman,
SIGNEE TO PROPERTY PUR- she must be considered a bona fide ownCHASED IN WIFE'S NAME. er of it, the same as if she were a fem. U. S. CIRCUIT COURT.
But it must be entrenched NEW JERSEY.
in good faith. If it is purchased by Muirhead, assignee, &c., applt., v. her or for her, no matter by whom, its Thomas Aldridge and Annie Aldridge validity cannot and ought not to be his wife, respts.
questioned. But if she iras no sepaDecided March 28, 1876.
rate estate, or one disproportionately An assignee in bankruptcy is entitled small, as compared with the considera
to property which has been purchas- tion ostensibly paid by her, ard deficiened in the name of the bankrupts cies are supplied from resources, whethwife, where it is shown that the wife contributed but little towards its pur- er money or its equivalent, of her huschase, and the husband has increased band, which he could not rightfully ap
its value by his own time and labor. ply, such a transaction does not deserve A debtor cannot deprive his creditors any legal sanction. of the product of his labor, by put
Also held, That while a debtor canting it in the form of property only not be compelled to labor for his crednominally acquired by his wife.
This bill was filed by the assignee in itors, he cannot divert the product of bankruptcy of the defendant, Thomas his labor to his own benefit, by putting
it in the form of property only nominAldridge, to obtain a conveyance to ally acquired by the wife; and that him, as such assignee, of certain real where his nominal agency for the wife estate, therein described, the title to is used as a device to cover his acquisiwhich is in his wife's name; but which tions, under the name of his wife, it will it is claimed, in truth belongs to him. prove unavailing.
Defendanis set up that the property Also held, That the real estate in in question was acquired and conveyed question is really the property of the to the wife during coverture, and that husband; that the title to it was vested it is her separate property.
in the wife in fraud of creditors; and During nine years, twenty-one pieces that a decree should be entered for its of real estate were purchased for and conveyance, in accordance with the conveyed to the wife. The husband prayer of the bill
. took entire charge of the estate, and by]* Opinion by McKennan, Cir. J.