Tompson v. National Bank of Redemption , 106 Mass. 128 ( 1870 )

Wells, J.

The only ground of demurrer assigned is, that the plaintiff has an adequate remedy at law.

Upon the allegations of the bill, taken as true, a judgment has been rendered, in the state of Maine, against the plaintiff jointly with Samuel B. and William L. Emery, and Oliver Hill, not made party to this bill, upon their liability there, as directors of an insolvent bank, under the statutes of Maine. Whatever may have been their rights as to contribution among themselves originally, the three have, since the rendition of the judgment, made an adjustment, by which it was agreed that each should bear one third of the debt. In fraud of that agreement, and of the rights of Tompson so fixed, the other two have made an arrangement by which the judgment has been taken up and transferred to Moses W. Emery, who with others, sons of Samuel B. and William L. Emery, signed or indorsed the notes given in payment therefor. These parties, in collusion with the other two joint debtors, are now seeking, in the name of the original creditor, to enforce that judgment against Tompson alone for the full amount, by levying upon his real estate in Maine, attached in the original suit, and by suits here upon the judgment. The real estate of the other two, which was also attached, is not levied on, but conveyed to the sons to secure them for their liability upon the notes with which the judgment was taken up.

We think this clearly makes a case for jurisdiction in equity. The arrangement with the creditor bank cannot be pleaded at law as a payment. The rights of other parties than the debtors prevent it from so operating. The assignment to Moses W. Emery was upon a lawful consideration and valid. It can only be impeached to the extent necessary to make good the contribution agreed on ; and that can be done only in equity. In equity too, even if the assignment cannot be limited, the security given by i he other two debtors to the sons, who are made defendants, can be reached and applied to the discharge of their shares of the judgment.

The allegation that the judgment had been paid must be taken as a statement only of equitable or legal effect. If of legal effect, the contrary clearly appears from the facts alleged. The same may be said of the allegation that the judgment of the court in Maine is void because the corporation, plaintiff therein, had ceased to exist. The plaintiff is not concluded by such allegations. Brown v. Newall, 2 Myl. & Cr. 558, 576.

We are therefore of opinion that the demurrer is not well taken and must be Overruled.