Citation Numbers： 84 Me. 492
Judges： Emery, Foster, Haskell, Peters, Walton, Yirgin
Filed Date： 5/27/1892
Status： Precedential
Modified Date： 9/24/2021
The complainants undertake, by this bill in equity, to collect a debt due them from the J. Way land Kim-ball Company, a corporation doing business in this State, out of certain personal property mortgaged by that company, it is alleged, in fraud of creditors. The mortgagees and others in present possession of the property are made, with the mortgagors, parties defendant, all of whom demur to the bill.
The proceeding is instituted under a section of the statute (K. S., c. 77, § 6,) which enumerates the different classifications in which the equity jurisdiction of this court may be exercised, the tenth clause of such section reading as follows : " In suits for re-delivery of goods or chattels taken or detained from the owner, and secreted or withheld, so that the same cannot be replevied, and in bills in equity, by creditors, to reach and apply in payment of a debt, any property, right, title or interest, legal or equitable, found within this State, of a debtor or debtors, which cannot be come at to be attached on writ, or taken on an execution, in a suit at law, and not exempt from such attachment and seizure, and any property or interest conveyed in fraud of creditors.”
The last words here quoted, namely, "any property or interest conveyed in fraud of creditors,” were not originally a part of the section, but were added by an amendment in 1877.
The only question presented by the demurrer is as to the meaning and effect of those words. The defendants contend that the complainants are not entitled to the remedy granted by the statute unless it appears that the property, sought to be reached by the equitable process, cannot be come at to be attached on writ or seized on execution in a suit at law, and
A literal rendering of the statute sustains the position of the complainants, and a careful consideration of the question induces us to believe that the legislature intended just what it literally-said. We think the design of the amendment was to afford the equitable remedy in cases where property cannot be attached or seized, and also incases of property fraudulently conveyed whether attachable and seizable or not.
There certainly was a good deal of expediency in extending the equitable remedy to cases like the present. The legal remedy is slow and expensive compared with the equitable, and much more hazardous. In the legal procedure the method is circuitous. An action must be pushed to judgment and execution, a seizure or levy made, and then another action instituted to settle the title of the property so attached or seized. Equity settles all questions with all parties in a single suit. Donnell v. Portland & Ogdensburg R. R. Co. 73 Maine, 567.
Property that cannot be come at so as to be attached and property fraudulently conveyed, stand in principle upon the same footing. In one sense the latter cannot be come at to be attached, that is, it cannot be attached so that a lien will be secured upon it beyond question. The apparent title is not attached. There is contingency and uncertainty about it.
Furthermore, if the construction is to be as the defendants insist it should be, then the amendment to the statute is entirely nugatory. The statute as it was without the amendment extended to property conveyed in fraud of creditors, if so situated that it could not be reached by attachment or seizure. The amendment would add nothing to the statute.
The equity powers committed to the court by the statute before quoted are not restricted by a later clause of the same section, which provides that full equity jurisdiction shall be exercised by the court " in all other cases ” where there is not a plain, adequate and complete remedy at law. The general provision applies not to all cases, but to all cases other than those