Morton v. Weil

Ingraham, J. Upon all the grounds stated in the demurrer in this case, except the third, I am of the opinion that the demurrer is not well taken. The third cause of demurrer is, that several causes of action have been improperly joined. The object of the complaint appears to be, to set aside various liens by judgment and by assignment, on the debtor’s property, for alleged fraudulent acts on the part of the defendants, and to have the property, which was covered by such liens, or received in payment of the claims of those creditors who were made defendants, and the proceeds of such property, applied to the payment of the several judgments held by the various persons named as plaintiffs. So far as these claims, whether by conveyance, judgment, or delivery, affect the same property, they are properly united together; but the point raised in the case is, whether different persons, having different liens or conveyances, by which they claim different pieces of land, or different parcels of personal property, may all be included in one action, and required to contest their respective titles to separate portions of the debtor’s property. By the Code, it is provided, that the causes of action to be united, must affect all the parties to the action. (Code of Procedure, § 167.) In the present case, part of the object of the complaint is to have the judgments recovered by several different judgment-creditors declared void. Another portion of the complaint charges that Bettman, the debtor, made an assignment for the benefit of certain creditors, and charges fraud in regard thereto, and claims to have that declared void. Another portion of the complaint avers, that Hansmann and [433] Gump, with Bettman, were concerned in secreting the goods and property of Bettman, for the purpose of concealing the same from the creditors, for the benefit of Bettman. All these acts are declared to be fraudulent; but between the three classes above referred to, I can find in the complaint nothing that unites them together, or that shows them to be jointly interested even in any remote degree, except as to the general fraudulent intent in the debtor’s disposition of the property. It was said, on the argument, that these defendants were charged with conspiring together, and that the conspiracy was the cause of action, which allowed the defendants to be all united together. On reference to the complaint, however, it will be seen that no joint conspiracy of all the defendants is any where alleged, but that the conspiracy of a portion only is averred, with allegations that the other defendants had notice of the facts set up in the complaint as to the plaintiffs’ rights. The only question then is, whether, where the plaintiffs, who are judgment-creditors, seek to obtain the debtor’s property, from persons to whom it was fraudulently passed away, they may unite such persons in one action, although the latter received the property in separate and distinct parcels. That such an action could have been sustained before the Code, I have no doubt. In Brinkerhoff a. Brown (6 Johns. Ch., 139) it was held that judgment-creditors of a corporation might proceed against the trustees, and others, to recover the property of the corporation, which bad been withdrawn from the reach of their executions by the fraudulent acts of the defendants, although having different interests in the property. In Fellows a. Fellows (4 Cow., 682) the chancellor says: “The separation of the property into portions is a part of the fraud, and to allow that such a separation shall render separate suits necessary, would be to allow success to the fraud itself, so far as multiplicity of suits may impede the recovery of just demands.” Justice Woodworth states the rule to be, that “unconnected parties may be joined in a suit where there is one connected interest among them all, centring in the point in issue in the cause;" and again he says: “ The claim against all of the defendants is of the same nature. The fraud alleged is the same. [434] The transfer being fraudulent, the property was not changed by being put into the hands of the defendants. They are, therefore, all necessarily concerned in the thing to be recovered, although they set up distinct interests to separate parcels.” Chief-justice Savage, in the same case, says: “ The common point of litigation is the fraudulent transfer of the property of the debtor to the other defendants. If the source of their title be corrupt, the property is taken with the taint of corruption. This is the common point of litigation, the decision of which affects the whole, and will settle the rights of all.” And in Boyd a. Hoyt (5 Paige, 65), the chancellor says: “Where the object of a suit is single, but different persons have or claim separate interests in distinct or independent questions, all connected with .and arising out of the single object of the suit, the complainant may bring such different persons before the court as defendants; and if the object of the present bill was to reach the property of the debtor in the hands of these several defendants, which ought to be applied in satisfaction of the amount due on the judgment, and to have it thus applied, I should find no difficulty in sustaining the decision overruling these demurrers.” From these cases, which are very similar in their objects to the present action, it is apparent that such actions might have been maintained before the Code. It is also manifest that the courts throughout, in these cases, have based their decisions upon the supposition that the cause of action was the fraud of the debtor in disposing of his property, and that there was but one cause of action, although the defendants held the property of the debtor in separate parcels, in which there was no joint interest. They all hold by the same title, and are all affected by the same taint, and this is the cause of action on which the right of the plaintiffs rest. Applying this rule to the provisions of the Code, there is no room for any other decision. The cause of action is the same, viz.: the fraudulent disposition of the debtor’s property to the several defendants, although in several parcels. The same reasons that existed before the Code for uniting them in one action still remain; and as the words of the section of the Code above referred to do not prevent it, I think the rule still continues, and that the demurrer is not well taken. [435] The plaintiffs are therefore entitled to judgment on the demurrer, with leave to the defendants to answer on payment of costs. Order accordingly.