Farnsworth v. Strasler

Caton, J. It is first objected that this bill is insufficient. This objection is not well taken. The bill alleges that at the April term, 1849, of the Jo Davies County Court, the complainant obtained a decree against the defendant Farnsworth for the the sum of $187 50, upon which an execution was issued which was levied upon the premises described in the bill. The bill further alleges that in May, 1843, Farnsworth conveyed the premises to Harriet Farnsworth, and that in September, 1845, Harriet and the defendant Frink, being about to intermarry, conveyed the premises to T. B. Farnsworth, in trust, for the separate use of the said Harriet, immediately after which, the said John and Harriet were intermarried. The bill further shows, that at the time of the first conveyance, and ever since, T. B. Farnsworth was, and hath been utterly insolvent, and that all of said conveyances were made to defraud his creditors. The bill prays that the conveyances may be set aside, and that the premises may be sold for the payment of the amount due to the complainants upon their said decree, and for general relief. Here are all of the essential averments of a creditor’s bill. Such a bill may as well he filed to aid in the collection of money decreed in chancery, as of a judgment at law. By our statute, an execution may be issued for the collection of the one as well as the other. Here were.fraudulent conveyances, which were impediments in the way of the collection of the amount commanded to be made by the execution, to remove which, is the proper province of a court of equity. The bill was sufficient. It was next objected, that the summonses were not properly served on the defendant. To the one issued to the sheriff of Jo Davies county, he returned it with this endorsement, “ executed the within, by delivering a certified copy to the within-named Terah B. Farnsworth, this twenty-fifth day of July, A. D. 1849,” &c. The service was abundantly sufficient. The whole return taken together shows that the sheriff left a certified copy of the writ with the defendant. That such was the reasonable and proper construction of the return, we have no doubt. Words may be implied in an officer’s return, as well as in other written evidence, where such implication is justified, by what is expressed. By the same rule, we find the service to have been suffi.cient on Frink and wife. The sheriff of Cook county returned the summons which was directed to him with the following endorsement on the back, “ executed by reading and delivering two copies to John Frink and Harriet Gr. Frink, this 29th day," &c., although this return is not quite as full as the first, still it leaves no doubt as to its meaning. We cannot understand that any thing but the writ upon which the return was endorsed was executed. If the writ was not thus executed, the parties could maintain an action for a false return against the officer. All of the defendants were properly in Court, and the bill was regularly taken for confessed, against them. It was also objected, that the evidence which was heard by the Court, not being preserved in the record, it does not appear that there was enough to warrant the decree. It has been already decided by this Court, in the case of Manchester et al. v. McKee, et al., 4 Gilman, 511, that where a bill has been regularly taken for confessed, it cannot be assigned for error, that the averments were not proved. The party cannot be allowed to deny, what he has, in contemplation of law, confessed to be true. But it was said that inasmuch as the Court did require proof, it manifested a determination not to proceed upon that confession, and that when proof is required,—when the Court has determined to proceed upon the proofs, then they should appear to have been sufficient. But the right of the Court to act upon the admissions of the parties, is not abandoned because corroborating proof is required. The Court may have desired to have heard proof upon some of the allegations, and not upon others. The amount of corroborating proof to be required, was within the discretion of the Court. The Court might require ail the allegations'll the bill to be proved, the same as if they had been denied by an answer, but it was certainly not bound to require proof to that extent. It might even listen to evidence not strictly admissible, had ah issue been formed, and yet the positio i of the parties, would preclude them from objecting to it. The whole was within the discretion of the Court. It is true, that in a case where the complainant does produce legitimate evidence, sufficient to maintain his case, had the allegations of his bill been denied by an answer, then that discretion closes, and he is entitled to a decree, and it would be error in the Court to refuse it. In such a ease, and in such only, would it be the duty of the Court, on the application of the complainant to preserve the evidence in the record. But the defendant, who has allowed the bill to be taken as confessed, can never require this to be done. We cannot say that the Circuit Court erred in appointing a special commissioner or master, to carry the decree into execution, although it was business properly appertaining to tire duties of the resident master in that county, yet the Court was vested with the authority to appoint the special commissioner, to-execute the decree, and we will presume that this change, from, the ordinary course, was made for sufficient reasons, and the Court was not bound to spread those reasons upomthe record. The last objection which was made, is, that no redemption was allowed from the sale which was ordered to be made by the decree, and in support of the objection, our statute, which allows the same redemption from the sales of mortgaged premises, upen the foreclosure of the mortgage, which is allowed from sales made upon executions at law, was cited. This statute only applies to the class of sales mentioned in it, and we are not at liberty to extend it by construction to all sales made in pursuance of a decree of a court of equity. The Court having acquired jurisdiction of the matter, was authorized to do complete justice between the parties, by ordering the premises to be sold to satisfy the amount due upon the former decree, and the considerations of clemency, which induced the passage of that statute, do not exist where premises have been covered up for many years by fraudulent conveyances, and kept from the reach of creditor's. The decree of the Circuit Court must be affirmed, with costs. Decree affirmed.