specially for not setting out more particularly the cause of complaint. Both were overruled, and defendant answered denying generally the complainant's allegation. The case was heard in open court on pleadings and proofs, and the bill dismissed. The statements contained in complainant's bill of complaint show that she had a good defense at law, which, if interposed in time, would, if found true, have defeated a recovery. In such cases no relief is afforded in equity, unless the party was prevented from availing himself of such defense by fraud or accident, without negligence of himself or his agents. Crim v. Handley 94 U. S. 652; Hendrickson v. Hinckley 17 How. 443; Miller v. Morse 23 Mich. 365. The bill charges no fraud and no fault of defendant which operated to prevent a defense. We are satisfied from the testimony that the complainant's failure to put in a defense to the suit was the result of her own negligence, from which she is not entitled to be relieved by a court of equity. We think also that she has failed to show that the judgment is unconscionable or against right and justice. The decree of the circuit court is affirmed with costs. The other Justices concurred. FIRST NATIONAL BANK OF St. JOHNS AND ALVIN SHAVer v. Fraudulent mortgage-Parties to bill in aid of execution. 1. Indorsers joined with their principal in an action on his note need not be joined with him as defendants to a bill in aid of the execution issued thereon where the property levied on belongs to the principal alone. 2. Plaintiffs in separate actions, in which executions against the same defendant were simultaneously levied, are collectively and ratably 55 297 110 655 interested in the levy and are proper co-complainants in a bill in aid of such execution. 3. A defendant pending suit gave his brother a mortgage which, if valid, would make a judgment against him worthless. It was given ostensibly to secure a debt, the existence of which had been carefully concealed, even from the mortgager's family, and most of which would be outlawed unless it had been renewed. The supposed debtor had always appeared to be prosperous and the indications were that the debt would never have been heard of but for the impending judgment. The original evidences of it had been suppressed or destroyed. Held, that the case could not be treated as one in which a brother, for relationship's sake, had refrained from pressing his claims; and that he was not entitled to take precedence over others as a bona fide creditor. Appeal from Clinton. (V. H. Smith, J.) Oct. 21.Nov. 19. BILL in aid of execution. Complainants appeal. Reversed. Spaulding & Barker for appellants. Mitchel, Bell & McGarry for appellees. A bill in aid of execution must be sworn to (Chancery Rule 103) and all the judgment debtors made parties defendant, or it must be affirmatively alleged and proved that those who are not made parties defendant are wholly destitute of property: Van Cleef v. Sickles 5 Paige 505; Williams v. Hubbard i Mich. 446; Shaver v. Brainard 29 Barb. 25. CAMPBELL, J. Plaintiffs in April, 1881, severally recovered judgments against defendant George W. Tyler and certain other parties who were indorsers on his individual notes, for the aggregate in four judgments of $1653.67. Executions were issued and simultaneously levied on George W. Tyler's farm in Clinton county, being the east half of the northeast fractional quarter and the southwest quarter of the northeast quarter of section 2 in town 8 north, of range 4 west, containing about 170 acres. The suits were begun in January, 1884, and on March 11, 1884, George W. Tyler, who was married and living on his land, mortgaged, without his wife's signature and with intentional concealment from her, all of this land to his brother, the defendant Melvin J. Tyler, for $7000 payable at the end of five years, with interest annually. This property, it is alleged, was so mortgaged in fraud of complainants, and the bill is filed in aid of execution. The court below dismissed it, but we are not informed on what ground. It seems to be assumed that it was on the merits. There are some preliminary questions which it is proper to refer to. It is suggested that the other parties defendant in the judgments should be brought in, and also that it does not appear that they have not property to satisfy the claims. If this had been a judgment creditor's bill to reach equitable assets, founded on inability to get redress at law, these objections might need consideration. But here the complainants have found property which they propose to reach at law, and which it is proper, if they can make out their case, to exhaust before seeking equitable assets. The judgments are not upon any joint liability of the several defendants at law, and are only obtained under our peculiar statute which allows maker and indorsers to be sued together, but does not require it, or place them on the footing of ordinary joint debtors. No one but the judgment debtor principal has any interest in this land beyond what Melvin J. Tyler has as mortgagee. There was no occasion to implead them. Neither is there a misjoinder of complainants. These complainants are interested collectively and ratably in the levy which the bill is filed to aid, and they represent all of such interests. There is no rule of equity which precludes their joinder. On the contrary it might be open to question whether they are not in any event necessary parties complainant or defendant. They are certainly proper co-complainants. The question then comes down to the single inquiry, whether the mortgage is fraudulent against complainants. It appears that defendants are brothers, living four or five miles apart; George being about forty-nine years old and Melvin four years older. George has a wife and family, and has, since he went upon his farm, improved it considerably and put up valuable buildings, large and well built; and it is worth about $10,000, and was subject at the time of these transactions to a mortgage of $2200. He had a growing wheat crop, and had upon the farm a considerable amount of farming stock and implements. He was apparently a prosperous and well-to-do farmer. Some time before the mortgage to his brother was given and before these suits were brought, and soon after the notes matured, George had conversation with complainant Shaver, whom he visited to confer about his debt, and complainant recommended him to raise money by mortgage so as not to be bothered by notes occasionally coming due. George told him he had this farm, worth eight or ten thousand dollars, which was subject to the $2200 mortgage, and that if he had. $2500 he could square all his indebtedness, and could get along with enough to make $4500, including the existing mortgage. George gives a somewhat different version, claiming he did not say this was all his indebtedness; but complainant is corroborated, and we have no doubt he was given to understand so. Complainant introduced him to some men having money to lend, but he did not get the loan he wanted and would not take less. On March 11, 1884, he made two mortgages to Melvin, one of $7000 on the farm, and one of $1200 on the wheat crop, which was seventy acres. He had already given a mortgage on the moveable property on the farm, to Melvin, a short time before. This mortgage is not produced and its date and conditions do not appear. He also conveyed by deed absolute his interest in a mill which was subject to his mother's life-estate. The consideration for these transactions is claimed to be a series of notes of various amounts, beginning in 1862 and ending in 1880, upon which at this time Melvin was anxious to get security. It appears that under some arrangement between the brothers, Melvin took these notes to a neighbor, Mr. Sunderlin, and got him to compute the whole amount due for principal and interest. Mr. Sunderlin figured it up. and informed the parties. The principal, according to his recollection, was something less than $4000, and the aggre gate principal and interest was $S220. The paper containing this figuring was not produced, and neither of defendants can give any statement of the size and other essentials of the notes. The sum was divided so as to put $7000 on the land and $1200 on the wheat. The mortgages were not drawn up by Mr. Sunderlin. These securities and transfers covered the whole of George's property, and apparently absorbed it. It appears from the testimony of Melvin that he did not wish George's wife to know anything about these matters, and that the existence of the debt had been purposely concealed from her, although she is shown to have been informed of the other debts against her husband. All of this debt, if existing, except one note the amount of which is not given accurately, but not over $700, was outlawed, and some of it dated back more than twenty years. The account given by defendants is that Melvin advanced to George from time to time small sums, and took due-bills; that after a while they would meet and have a settlement, and George would give a note running for one year on interest, and in this way all the notes originated. It is claimed that during all this period there never was any money paid to Melvin, who himself incurred some debts on his own account, while George went on in apparent prosperity, building to the amount of some $5000, and living in such a way as to create no suspicion in his family or elsewhere, that he was under any debt whatever beyond what was public and within his means. And as already mentioned, he not only got credit as such, but a few months before these arrangements declared that he was not so indebted. Under all these circumstances it is claimed for the defense that Melvin must be treated as a bona fide creditor and incumbrancer, and that complainants must lose all remedy against their debtor, who, according to this showing, has been insolvent all along for years, while he has appeared to be perfectly good, and whose apparently prosperous condition, if fictitious, is due to the intentional concealment from his family, if not from the public, of the brother now appearing as creditor. |
