Weil v. Raymond

Field, J. If George J. Raymond has any interest in the leasehold estate, which can be taken by a creditor in satisfaction of his debt, it is a legal estate which can be attached in an action at law against him, and, if judgment is obtained, execution may be levied upon it. Pub. Sts. c. 171, § 51; a. 161, §§ 61 $ seq. McNeil v. Ames, 120 Mass. 481. As was said in Schlesinger v. Sherman, 127 Mass. 206, this is the “ entire remedy which the Legislature intended to give for applying to the payment of debts any title in real estate, or in the rents and profits thereof, which is a legal interest of such a nature as to be capable of being taken on [213] execution at law.” The bill does not set out a.copy of the lease or its terms, further than to state that it “is unassignable by the lessee without the written consent of the said lessor, and is terminable at the election of the said lessor if said lessee shall be declared insolvent, or any assignment of his property shall be made for the benefit of his creditors.” An assignment by operation of law is not a breach of a covenant not to assign; Smith v. Putnam, 3 Pick. 221; and if, on inspecting a copy of the lease, it should appear that, by its terms, the interest of the lessee ceases if it be attached or taken on execution, this is the effect of the contract, and is not a ground for equity jurisdiction. There is, indeed, no averment that George J. Raymond has sublet the property, or is in the receipt of any rent therefrom. The plaintiff sues to recover a debt for merchandise sold, and this debt has not been reduced to a judgment, and therefore the case is not within the general equity powers of the court to subject property on which an execution at common law cannot be levied to the satisfaction óf a judgment obtained at law. Carver v. Peck, 131 Mass. 291. The chattels which the plaintiff seeks to have applied to the payment of his debt are property which, from its nature, can be come at to be attached and taken on execution in a suit at law, if the property of the debtor; and the case stated is not within the Pub. Sts. c. 151, § 1, cl. 11. The case discloses no equitable interest of either George J. Raymond or his wife in the chattels, which cannot be attached at law. If the plaintiff sold the merchandise to George J. Raymond under the name of George J. Raymond and Company, he can sue him therefor; if, in buying the property, George J. Raymond acted as the agent of his wife, an undisclosed principal, the plaintiff can also sue her; he cannot sue both jointly, but it is said that he can proceed against each separately, although not to judgment against both, for a judgment obtained against one, although unsatisfied, is a bar to an action against the other. Raymond v. Crown Eagle Mills, 2 Met. 319. Kingsley v. Davis, 104 Mass. 178. Curtis v. Williamson, L. R. 10 Q. B. 57. Priestly v. Fernie, 3 H. & C. 977. The plaintiff’s difficulty is not so much in determining whom to sue, as in determining beforehand who owns the chattels [214] which he wishes to attach in the suit; but the statutes have not made this a ground of jurisdiction in equity. If the chattels have been mortgaged or pledged to Horace Partridge and Company by the plaintiff’s debtor, or if Horace Partridge and Company have a lien upon them, and the general property is in the plaintiff’s debtor, they can be attached in an action at law. Pub. Sts. e. 161, §§ 74 seq. The plaintiff contends that the certificate of Hattie D. Raymond, that she proposes to do business on her separate account under the style of George J. Raymond and Company, was filed by her in fraud of the statute and of his rights. The Legislature has not forbidden a married woman from doing business under a firm name which contains the name of her husband, and under which he had previously done business. If the certificate is not such as the Pub. Sts. c. 147, § 11, require, the effect is that the property employed in the business is liable to be attached as the property of the husband, and he is liable upon all contracts lawfully made in the prosecution of the business. The deceit practised under such a certificate is not greater than if any maii or unmarried woman had taken the business of George J. Raymond carried on by him under the name of George J. Raymond and Company, and had continued to carry on the same kind of business under the same name, at the same place, with George J. Raymond as agent. If George J. Raymond has attempted to convey his property directly to his wife, the conveyance is void, and it can still be attached as his property; if the conveyance has been made through a third person, whether it is fraudulent and void as against his creditors is to be determined upon much the same principles as if the conveyance had been made to any other person. If the change in the form of doing business is a pretence, and George J. Raymond is in fact carrying on the business, the filing of the certificate does not prevent the plaintiff from proving what the fact really is. It is only on the ground that the property of the plaintiff’s debtor has been conveyed in fraud of creditors, that the plaintiff can bring his case within the Pub. Sts. c. 151, § 3. This section gives jurisdiction in equity, in the cases specified in it, concurrently with that of courts of law. Powers v. Raymond, 137 Mass. 483. The plaintiff before filing this bill brought an action at law [215] in the courts of this Commonwealth against George J. Raymond for the same cause of action as that alleged against him in this bill, and this action, apparently; is now pending; and it may be that the pendency of this action would be a good ground for dismissing the bill as to him. See Buffum v. Tilton, 17 Pick. 510. If the bill had been brought against Hattie D. Raymond as the sole debtor of the plaintiff, with an allegation that she had transferred her property to Horace Partridge and Company to defraud her creditors, it may be that it would state a case within the Pub. Sts. a. 151, § 3, and that the pendency of the action against George J. Raymond would not be a bar to this suit against her, as the'undisclosed principal for whom he contracted the debt. But the plaintiff cannot, upon the facts shown, maintain a suit against both jointly as his debtors, either at law or in equity. In bringing or in prosecuting a suit, he must elect whether he will take George J. Raymond or -his wife as his debtor, and he cannot make both principal de~ i fendants in one suit, whether he charges them conjunctively or alternatively. The uncertainty, if there be any, as to the person liable for the indebtedness, and the risk attending an attachment of the property and a levy of execution upon it, if the plaintiff obtain judgment against either George J. Raymond or his wife, does not give the court jurisdiction in equity. But the bill does not distinctly allege that the property has been conveyed to Horace Partridge and Company by either George J. Raymond or his wife in fraud of the creditors of either. Indeed, the bill does not distinctly and unequivocally allege that the property has been conveyed by George J. Raymond to his wife with intent to defeat, delay, or defraud his creditors. See Clark v. Jones, 5 Allen, 379. Decree affirmed.