Schettler v. Brunette , 7 Wis. 197 ( 1859 )

By the Court,

Smuth J.

We do not see how this bill, in its present form and under the present statement, prayer and proofs in the case, can be sustained. The complainant says, in his bill, that being anxious to protect himself against the claim of. Eastman under his deed, and the claim of said Augustine under his bond and mortgage, he effected an arrangement with the said Eastman, which will save him from any considerable loss, unless he should be compelled to pay said bond to said Augustine. In other words, the complainant and Eastman have entered into a contract between themselves, Augustine not being a party thereto, by which a kind of partition of the estate shall be effected between the contracting parties, and the court is called upon to enforce this arrangement by a decree analagous to that of specific performance against a person who was not a party to the contract.

Whatever may be the rights and equities of the complainant, it is evident that they must depend in a greater or less degree upon the title of Eastman. But that title is disputed, and its validity is difficult to be determined in this suit. Indeed, we do not see how it can be so determined; at least upon the pleadings and proof in the case.

If it had been distinctly alleged in the bill, and had appeared in proof that Augustine was insolvent, we might perhaps enjoin the bringing and prosecution of an action on the bond and mortgage, until Eastman’s title should be tried and determined; provided such a decree could be justified by the allegations and prayer of the bill. But such is not the object or the prayer of the bill. The gist of the bill is, that inasmuch as Eastman has obtained a title by sheriff’s deed, which would interfere with the title obtained by the plaintiff by virtue of the deed of the defendants to him, as he views the legal effect of such sheriff’s deed, he has entered into an arrangement between Eastman and himself, by which he can compromise the matter. But Eastman is not a party to this suit, and we cannot, therefore, pass upon the validity of his title. No decree in this suit would bind him, and Augustine cannot be required to litigate that title here.

There is no sufficient proof of Augustine’s insolvency, that we have been able to discover, nor is it admitted by the pleadings.

The prayer of the bill is, that the bond and mortgage held by Augustine, may be given up to be cancelled, and for general relief. If Eastman’s title was undisputed, and an eviction had been had thereon, and the defendant was insolvent, this would be a proper degree and kind of relief Perhaps in case of insolvency of the defendant it might be had without eviction. But we do not think the plaintiff is entitled to have the bond and mortgage cancelled under the case here made by the pleadings and proofs. Unless the plaintiff is entitled to have his bond and mortgage delivered up and cancelled, in consequence of- Eastman’s deed alone, no agreement between him and Eastman, to which Augustine is not a party, can make the obligation on the part of the latter to deliver up the bond an 1 mortgage, the stronger. How can this arrangement between Eastman and the plaintiff in any manner affect the defendant ?

The deed of Dominique to Augustine was executed before the judgment was rendered In favor of Lawe’s Executor against Dominique. There was no lien upon the premises. The legal title passed to Augustine free from incumbrance. But it is claimed by the plaintiff that that conveyance was fraudulent as against the creditors of Dominique; that Lawe was a creditor, that the executor of the estate of Lawe obtained judgment, which was assigned to Eastman, who, deeming said conveyance fraudulent, levied upon and sold the premises as the property of Dominique; that Eastman purchased the property at such sale, and that he has made a favorable arrangement with Eastman to quiet all these matters without loss to him, and the bill calls upon the court to ratify such arrangement, or rather to blot out of existence Dominique’s deed to Augustine, to declare the same fraudulent as against a creditor without a trial, and without any party before the court claiming in capacity of creditor, and wipe out the plaintiff s bond and mortgage to Augustine, and to carry into effect the agreement between Eastman and the plaintiff, provided after all, Eastman is willing to sanction the decree of the court.

Unless the deed of Dominique to Augustine was fraudulent, Eastman has not a shadow of title, and it is enough to- say, that in view of the evidence in this case, we are far, very far from being prepared to declare that deed fraudulent as to the estate of John Lawe. That is the only creditor, apparent, and we find the executor of this estate remonstrating against the prosecution of this claim, against the issuing of execution, and yet it is claimed that this deed was fraudulent, as made to hinder and delay a creditor who was entirely willing to be hindered and delayed; indeed who was entirely conversant with all the facts and circumstances as they transpired, and not only made no objection to any of them, but refused to disturb them.

But it is said that the case shows an intentional breach of the covenant of seizin. How so ? This can only be on the hypothesis that Dominique’s deed to Augustine was void. Was it void? Not unless it was frudulent as to John Lawe, or his estate, and then only at the instance of the creditor. We have already commented upon that question. Whatever might be the rights of Mr. Eastman claiming, as the representative of Lawe. for Lawe’s estate, this plaintiff has failed to establish a case entitling him to recover.

The decree of the circuit court, dismissing the bill, is affirmed with costs;