Powers v. Wheeler

Mr. Justice McAllister delivered the opinion of the Court: The question presented hy this record arises upon a general demurrer to the declaration. The declaration contains two counts in case. The first count alleges, in substance, the recovery of a judgment by the plaintiff against one Bivens, in the Macon circuit court, for the sum of $1519.40, besides costs, the issuance of execution and delivery thereof to the sheriff; that at the time the execution was so delixrered, Bivens, the judgment debtor, was the owner of and had in his possession three hundred hogs, Avhich Avere liable to execution and subject to the lien thereof; that the defendants, Avith knoAvledge of the judgment, and that an execution AAras in the hands of the sheriff, and Avhile the same Avas in full force, for the purpose of aiding Bivens in defrauding the plaintiffs in the premises, purchased said hogs of said Bii^ens, and for the better carrying out said fraudulent purpose, the said hogs Avere remoA’ed in the night time from the possession of Bivens to that of the defendants. The count then sets out the insolArency of Bivens and tlie loss by plaintiffs of the amount of the judgment, except about $200 thereof, by reason of the premises. The second count is like the first, except that it omits the allegation of knowledge of the judgment and execution, and the fraudulent purpose on the part of the defendants in purchasing the hogs. We think the want of these allegations clearly renders the second count insufficient. The proposition of law arising upon the first count is, Avhether a man, avIio purchases goods and chattels of a judgment debtor Avith knowledge of the judgment and execution, and for the purpose of aiding the judgment debtor to defraud the plaintiff in the judgment, and such purchase results in an injury to such plaintiff by reason of the removal of the property and insolvency of the judgment debtor, can be made liable, in an action on the case, for the damages sustained. As long ago as 1776, Lord Mansfield said: “If a man knows of a judgment and execution, and, with a view to defeat it, purchases the debtor’s goods, it is void; because the qmrpose is iniquitous.” Cadogan v. Kennett, Cowper, 432, and the same case holds such purchase void even if upon a valuable consideration. In Kerr on Frauds, 147, the doctrine is stated thus: “ But if the purchaser, knowing of the judgment, purchases with the view and purpose to defeat the creditor’s execution, it is iniquitous and fraudulent, notwithstanding he may have given a full price, for it is assisting the debtor to injure the creditor. The question of fraud depends on the motive.” See cases cited in note (P). The act being iniquitous and fraudulent, and the plaintiff being injured thereby, will an action on the case lie in his favor? It is well settled that he could not maintain trover; nor, without a levy, could the sheriff. If, then, there is any remedy for the creditor, it is in this form of action. We think the case of Yates v. Joice, 11 Johns. E. 136, approved by this court in Topping v. Evans, 58 Ill. 209, is an authority for this action. The court said of the action, in Yates v. Joice: “ The books do not furnish a precedent in its favor. It is obvious, however, from the statement of the plaintiff’s case, in the declaration, the truth of which is admitted by the demurrer, that he has sustained damages by the act of the defendant, which he alleges was done fraudulently and with intent to injure h-im. It is the pride of the common law that, wherever it recognizes or creates a private right, it also gives a remedy for the wilful violation of it.” That case, it is true, was for demolishing and removing away from a lot levied upon by the sheriff, a building, with notice of the judgment and execution, and with the intent to injure the judgment creditor and prevent satisfaction of his judgment. But the principle which governed is quite analogous. So also is that of Gardner v. Heartt, 3 Denio, 232. The court erred in sustaining the demurrer to the whole declaration, and the judgment is reversed and the cause remanded, with directions to the court below to overrule the demurrer to the first count, and sustain it to the second, with leave to the plaintiff to amend as to the latter. Judgment reversed.