REED v. STRYKER

REED v. STRYKER. December, 1858. Reversing 6 Abb. Pr. 109. A creditors’ action, by several judgment creditors, seeking to set aside several fraudulent conveyances made by the debtor, at various times and to various persons, and to subject the property to the executions of the plaintiffs, and to render an assignee in i;rust personally liable,— states but one cause of action; and the various transferees maybe . joined as defendants, although there was no privity between the transferees. Colba Reed, Borut Richtmyre, De Witt C. Stryker, John M. Branched, Elizabeth Boughton and Elisha Hammond, brought this action, in the supreme court, against Peter M. Stryker and Catharine M., his wife, Sabina Stryker, and George Manning, to set aside fraudulent conveyances made by the debtor of the plaintiffs, Peter M. Stryker. The complaint alleged several judgments recovered by the several plaintiffs, at various times and in various sums, against Peter M., for debts or considerations which arose prior to 1841, and it also alleged the issue of execution, &c.; and it sought to set aside as fraudulent as against creditors the following transfers made by Peter M., viz: a transfer of property to his wife, three others, made at various times, to his mother Sabina Stryker, and a general assignment for benefit of creditors, to the defendant Manning; and it also alleged that Manning had violated his trust, under the assignment, whereby he had become personally liable for the payment of several claims of the plaintiffs. Manning demurred, on the ground that several causes of action were improperly united; that the matters relating to the assignment to Manning were separate from the others; and that he had no connection with the others. The supreme court, at general term, on appeal from an order of .the special term overruling the demurrer, held that as the complaint did not allege combination, confederacy or concert of action between the various transferees, there was no joint liability, and the causes of action were several. They accordingly reversed the order. Reported in 6 Abb. Pr. 109. Plaintiff appealed. Abraham Becker, for plaintiffs, appellants.— The demurrer admits all the facts as stated in the complaint. Story Bq. Plead. § 452, note 4. It was competent and proper for the plaintiffs, separate judgment creditors of Peter M. Stryker, all to join in this suit, an execution upon each judgment having been returned unsatisfied, to reach all the legal and equitable property of the debtor. 2 B. S. 4 ed. p. 353, §§ 42, 43 ; Id. p. 974, § 11; Boyd v. Hoyt, 5 Paige Ch. 77 ; 1 Id. 637; 1 Barb. Ch. 59; 20 Barb. 380; 1 Code R. 19; 2 Sandf. 636; 7 How. Pr. 187; 15 Id. 333. 8. L. Manning, for Manning, defendant, respondent.—The several causes of action do not affect all the parties to the action. Code of Pro. § 167. Ho cause of action is alleged in which defendants have a common interest. Dewey v. Ward, 12 How. Pr. 419; Boyd v. Hoyt, 5 Paige, 65; Lexington, &c. R. R. Co. v. Goodman, 5 Abb. Pr. 493; 15 How. Pr. 85. The causes of action against the defendant Manning are of a different nature (see Fellows v. Fellows, 4 Cow. 682), and are inconsistent with each other. Burr, on Assign. 536 ; Bishop v. Houghton, 1 B. D. Smith, 566. And see Maxwell v. Farnam, 7 How. Pr. 236; Dorman v. Kellam, 4 Abb. Pr. 203; Sweet v. Ingerson, 12 How. Pr. 331; McIntosh v. McIntosh, Id. 291; Murray v. Hay, 1 Barb. Ch. 59. The complaint unites causes of action against the several defendants, individually, with causes of action against Manning, as trustee. This cannot he; Pugsley v. Aiken, 14 Barb. 116; McMahon v. Alden, 3 Abb. Pr. 689; 13 How. Pr. 39 ; Landau v. Levy, 1 Abb. Pr. 376; 4 Johns. Ch. 199. The several causes of action are not separately stated. ■ ■ • Followed in Newbould v. Warrin, 14 Abb. Pr. 80. [MAJORITY — Harris, J.] By the Court. Harris, J. The single question in this case is, whether the complaint contains one or several causes of action. If several, there is a misjoinder,' for the several causes do not affect all the defendants. The plaintiffs severally are the judgment creditors of the defendant, Peter M. Stryker. Their executions are returned unsatisfied. They are still in pursuit of the property of .their debtor. They bring this action, alleging that some of the property has been fraudulently conveyed to one of-the defendants, some to another, and some to the third. The subject of the action is the debtor’s property. The object of the action is to remove the illegal impediments which the defendants have placed in their way, so that-the property of the debtor may be "applied to the satisfaction of their debts. It is as much a single cause of action, as an action to foreclose a mortgage where persons having various and independent liens upon the mortgaged premises, some on one part, some on another, and still others on the whole, are made defendants.- They -are in no way connected with each other, hut they are each interested in the subject, or object of the action, which is to have the mortgaged premises sold, and the mortgage satisfied out of the proceeds, and because th'ey are thus "interested, they are not only proper, but necessary parties to the action. So, here, the plaintiffs seek to have the property which they find in the hands' of these defendants,—some in the hands of one, and some in the hands of another,—and which, as they allege, has been fraudulently placed there, applied to the payment of their '.judgments. Each of the defendants has an interest in the controversy. Each, is a necessary party to the complete determination-of the questions involved in the action. The case is not distinguishable from Fellows v. Fellows, 4 ' Cow: 683. In that case, a decree • in chancery for the- payment of money had been obtained against John Fellows, upon which an execution had been issued and returned unsatisfied. ■ A bill was then filed against him to obtain satisfaction of the decree, out of his property. His two sons, William and Thomas, and his son-in-law, Roswell Day, were made defendants. It was alleged that the property of John Fellows had been transferred by him without consideration, and fraudulently; a part to his son William, another part to his son Thomas, and another part to his son-in-law Day. Each defendant demurred to the bill, on the ground that he had been impleaded with the other defendants improperly; that the matters set forth in the bill were distinct and independent of each other. The demurrers were overruled by the chancellor, and upon appeal to the court for the correction of errors, after a most laborious discussion, in which the three justices of the supreme court participated, the decision was unanimously affirmed. Woodworth, J., said: “ The claim against all the defendants is of the same native. The fraud alleged against them is the same. The question to be decided is in every respect the same. The transfer being fraudulent, the property was not changed by being put into.tho hands of the defendants. They hold the property of the debtor without title. They are, therefore, necessarily concerned in the thing to be recovered, although they set up distinct interests in separate parcels.” Sutherland, J., says: “ The general right claimed by the bill is a due application of the property of John Fellows to the payment of the judgment. The subject of the bill and of the relief, and the only matter in litigation, is the fraud charged in the management and disposition of that property, and in which charge all the defendants are implicated, though in different degrees and proportions. The defendants, therefore, have one common interest among them all, centering in the point. in issue in the cause; and different matters of different natures are not demanded by the bill. It is one matter—the property of John Fellows—and the point in issue upon which the rights of all the parties must depend is, whether the transfer of that property to his sons and son-in-law was fraudulent or not.” And Savage, Oh. J., says: “Each of the defendants separately, we must intend, conspired with John Fellows to defraud the plaintiff by collectively talcing separate parts of the property and holding it for his benefit. There was no privity between William Fellows and Thomas Fellows and Roswell Day; bnt there was privity between each of them and John Fellows.” The same question was fully considered and discussed by Chancellor Kent, in Brinckerhoff v. Brown, 6 Johns. Oh. 139. In that case, the bill had much more of the character of multifariousness than the complaint now in hand. There, as in this case, the plaintiffs were distinct and unconnected judgment creditors. The judgments were against a corporation called The Genesee Manufacturing Company. The object of the plaintiffs was to obtain satisfaction of their judgments out of the property of the company, which, as they alleged, had been fraudulently withdrawn from their reach by the defendants. Some of the defendants were trustees of the company, and the bill sought to make them personally liable. Others were stockholders, and the bill sought to have them charged with payment of their unpaid subscriptions. Two of the defendants had purchased personal property belonging to the company. There were numerous other charges against the defendants, in which their co-defendants were not shown to have any concern. There was a demurrer to the bill on the ground that it was multifarious. It was insisted that the matters of the bill were totally distinct and unconnected. The chancellor, after reviewing the facts of the case, proceeds to say that, “it appears from the bill that all the defendants were not jointly concerned in every injurious act charged. There was a series of acts on the part of the persons concerned in the company, all produced by the same fraudulent intent, and terminating in the deception and injury of the plaintiffs. The defendants performed different parts in the same drama. But it was still one piece, one entire performance, marked by different scenes.” The demurrer was overruled. In Boyd v. Hoyt, 5 Paige, 65, the bill was filed by judgment creditors of Hoyt, after the return of an execution unsatisfied, to reach property in the hands of the other defendants, one of whom was the son, and the other the son-in-law of the debtor, and which it was alleged had been fraudulently transferred to them. It did not appear that the defendants had any joint interest in the property. On the contrary, it appeared that the property had been received by the son and son-in-law severally, and at different times. Upon demurrer for multifariousness, the chancellor said: •"So far as the bill seeks to reach the property of Hoyt, which has come to the hands of the other defendants respectively, without consideration, and to have the same applied to the satisfaction of the balance due upon the plaintiff’s judgment, there is no foundation for the objection that it is multifarious.” And he added: “ I have no doubt that two or more persons holding the property of the judgment debtor under different conveyances, or becoming indebted to him at different times, or for distinct sums, may be joined with him as defendants in creditors’ bill.” See also Hammond v. Hudson River Iron & Machine Co., 20 Bari. 378. Thus it appears that upon the point under consideration, the tenor of the authorities is uniform and decisive. The object of the suit is single. The plaintiffs, defeated in the col- ' lection of their debts by the ordinary process of law, now seek to reach the property of their debtor in the hands of those to whom he has dishonestly conveyed it. However numerous the persons with whom the property has thus been deposited, however distinct the transactions by which the debtor has sought to place it beyond the reach of his creditors, or however widely it may have been scattered in the execution of this purpose, the effort to recover the property and have it applied to the satisfaction of the plaintiffs’ debts, embraces but a single cause of action. The judgment of the supreme court, at general term, should be reversed, and that at the special term affirmed. Judgment accordingly.