Johnson-Maakestad v. Johnson

TTaettrír, J.

Under the style of “ The Farmers’ Company ” appellees and appellant, John Johnson-Maakestad, had for several years been engaged in buying and selling grain and coal at the village of Lee, in Lee county, when they, in February, 1889, ascertained that the indebtedness of the-concern to third parties was $41,598.98, and its total assets only $21,511.26.

In order to meet the deficit ($20,087.62), it was agreed to make an assessment upon each member of the company in proportion to the amount of stock or interest which he held. The amount assessed against John Johnson-Maakestad was $1,125, for which he gave two judgment notes payable to the order of the “ Farmers’ Company.” One of the notes he paid when due; on the other, judgment was obtained on the 3d of January, 1890, for the sum of $681.65. Two ' executions were issued on the judgment, but returned “¡No property found.”

Two or three days before the notes were executed, Maakestad, being the owner in fee of the E. of ¡NT." E. £ Sec. 36, T. 39 ¡N"., E. 2, E. 3d P. M., Lee county, executed a voluntary conveyance of such land to his son, Sjure J. Maakestad.

On the 13th of March, 1891, appellees filed their bill in this cause for the purpose of setting aside such conveyance as being without valuable consideration and 'in fraud of their rights, and to subject the land to the payment of their judgment debt. The defendants answered denying any indebtedness to the complainants, and denying that the conveyance was fraudulent.

The Circuit Court found that the “ Farmers’ Company ” was a partnership, composed of appellees and John JohnsonMaakestad; that the judgment obtained on the note was for the benefit of all the partners; that it was a lien on all the realty of Maakestad; that the conveyance to his son was fraudulent, and decreed that it be set aside, and that fi. fa. issue, upon which the land be sold.

In seeking a reversal of the decree appellants make the following points of contention :

1. The proofs do not correspond with the allegations in the bill.

2. Different relief from that prayed for was granted.

3. The judgment was irregular and should not be collected.

i. The allegation of fraud in the conveyance was not sustained by the evidence.

We see no obscurity in the bill nor variance between it and the proofs. It sets out a judgment wherein complainants and Maakestad were plaintiffs, and Maakestad was defendant. It was stipulated between the parties on the hearing of evidence that the judgment was obtained by the complainants and John Johnson-Maakestad, partners, under the firm name of “ Farmers5 Company55 against Maakestad.

The bill prays for relief on the part of all the plaintiffs except Maakestad. It does not seek relief for him, because it is alleged that by reason of his fraudulent act the injury has been sustained. He has no right nor voice on the complainant’s side of the controversy. All the right he has in common with them is to see that the money, if collected, is properly applied. Ho relief was decreed that was not sought by the bill. It is not necessary that the decree shall follow the exact language employed in the prayer for relief; it is sufficient if it substantially grants the relief prayed for.

Counsel for appellants contends that the judgment can not be legally collected because the note sued on was partnership property, and Maakestad was both plaintiff and defendant in the proceedings whereby the judgment was obtained. He insists that a court of equity can not lend its auxiliary jurisdiction to the purpose of collecting such judgment. It is a sufficient answer to this contention to say that the judgment is not void. Conceding that it is voidable, appellants are in no position to question its regularity in this suit. Ho steps have ever been taken to vacate it; nor have they asked any affirmative relief in that regard in this suit. It is quite clear from the evidence that the debt represented by the judgment is a just one. Maakestad Avas legally bound to contribute his share to the losses of the concern, and had he not volunteered to do so, as he did by executing his notes, a court of chancery would have compelled such contribution.

The proofs show that the conveyance from Maakestad to his son was in fraud of complainants’ rights. We are satisfied it was made for the purpose of escaping payment of what it had been determined was his part of the indebtedness.

The decree of the Circuit Court was entirely warranted under the pleadings and proofs.

Decree affirmed.