Brumley v. Golden

Philips, P. J. This action is based on section 448, Revised Statutes, which is as follows: “Any attaching creditor may maintain an action for the purpose oh setting aside any fraudulent conveyance, assignment, charge, lien, or incumbrance of, or upon, any property attached in any action instituted by him ; and where several attachments, in favor of different plaintiffs, are levied, on the same property, all or any number of such plaintiffs may join in the same action for that purpose.” The petition shows that different attaching creditors join in this action. Its object is to set aside, as fraudulent, a certain deed of mortgage, executed by the defendants, Golden & Company, to the other defendants, E. A. Phillips & Company, covering a large amount of dry goods, kept in different stores, a large quantity of railroad ties, situated at different points, and several parcels of land. This provision of the statute is an ingraftment upon the statute concerning attachments. Such an action as this, by several attaching creditors in one suit, would not be permissible at common law or in equity. It is exclusively a statutory right and proceeding. As such, the petition and proof must show the existence of the facts specified in the statute giving the several attaching creditors the- right to maintain the action. To entitle these plaintiffs to bring and maintain the action, the [168] petition must show, and the proof must establish, the fact; that the “several attachments are levied on the same property.” The petition fails to allege this essential fact. In respect of one of the writs, it states that it was “levied upon a portion of the goods, wares, and merchandise, situate in one of the storehouses, to an amount believed to be sufficient to satisfy said debt” ; while, in respect to the other writ, it is alleged that it was “levied upon a portion of said goods, to the amount believed to be sufficient to satisfy the debt.” So far from showing that the several writs were levied on the same property, the inference would rather seem that they were different parcels of the mortgaged property. The evidence on the part of plaintiffs, so the abstract of the record recites, shows that “the levies made were upon different portions of said property.” This proved the plaintiffs out of court, and the demurrer interposed by defendants to the evidence should have been sustained. The judgment of the circuit court must, therefore, be reversed and the petition dismissed. It is so ordered. All concur.