Rollins v. Van Baalen

Campbell, J. Complainants, who on January 31, 1885, sued out an attachment against Joseph Yan Baalen, in the Wayne circuit court, for $532, and caused it to be levied on the same day on a stock of goods of said Joseph, in Detroit, by the sheriff, Mr. Stellwagen, filed this bill February 2,1885, for-relief. The bill avers the execution on the 12th of January, 1885, of two mortgages on the same property by Joseph, —one indemnity mortgage for $5000 to Emanuel and Isaac Yan Baalen to secure them on their joint bond with him as his sureties, given November 21,1881, to Jacob Loewenstein, with whom he had been a partner, and whom he succeeded in [613] business; and one for $2600 to Emanuel to secure tbe payment of three notes made in November and December previous, on which Emanuel was indorser, held by the Market Bank. It also avers that on the same 12th of January, 1885, Joseph confessed judgment in favor of Emanuel for $2200.50, and in favor of Isaac for $3527.86; that the sheriff, Stellwagen, under executions on said judgments, levied on the property, and had advertised it for sale on the 3d of February, 1885, at ten o’clock a. m. ; and that he was in possession under said mortgages and such executions, and proposed to sell, and unless restrained, would sell and place it beyond reach of complainants and other creditors. The property is averred to be worth considerably less than these securities, and to include all that Joseph owned. It is also averred that the debts indemnified against are not all due, and do not, as complainants are informed, reach the full amount secured, and that the notes were made to enable Joseph to raise money and place it beyond the reach of creditors. They also give some reasons for claiming the judgment claims to be fictitious and collusive. A supplemental bill showed that on February 3d the mortgaged property was sold in bulk for $3000 to Isaac Yan Baalen (through Emanuel), subject to $3000 on the $5000 mortgage, and to $2500 on the other. The original bill claimed that the transactions of January 12 operated as a general assignment, and were therefore void for preferences, and asked that the court appoint a receiver under the statute on that subject. It also asked in the alternative that the judgments be set aside, as well as the $2500 mortgage, and that no sale be had on the $5000 mortgage until the contingent liability of the sureties was fixed, and that a receiver be appointed to dispose of all the property? giving preference to complainant’s attachment. The prayer of the supplemental bill was to reach the same substantial results against the defendants. Defendants demurred generally, and also specially for multifai’iousness, and for inconsistency in setting up an [614] attachment against a general assignment. The court below dismissed the bill. We can find no ground oh which this bill can be sustained» The statute of 1879, under which the claim is set up, is “An act to provide for the regulation and enforcement of assignments for the benefit of creditors.” Iiow. Stat. § 8739 et seq. It provides that all such assignments, “ commonly called common-law assignments,” shall be void unless made without preferences, and without certain formalities and concurrent action, and that they shall be so administered. All of the provisions relate to instruments which purport to be such assignments made to some assignee named. The statute is very clear on this subject. The transactions, claimed now to amount to a general assignment, are one mortgage to two defendants, which is confessedly valid to some extent; one mortgage to a single defendant, which is attacked as invalid; and two confessions of judgment, claimed to be fraudulent, not joint but several, on which executions have been levied, but not sold when the original bill was filed. The supplemental bill, which seeks to reach the proceeds of sale, does no.t dispute the partial validity of the first indemnity mortgage. Neither bill denies the validity of the notes secured by the second, mortgage, but they are claimed to have been negotiated for Joseph’s benefit. The sale being made subject to both of these mortgages, there would seem to be some difiiculty in dealing with them without bringing in Loewenstein and the Market Bank, who hold the debts secured. But as this point was not argued, and is not necessary for a decision, we pass it. The statute cannot treat these multifarious dealings in which interests are secured or transferred severally as one joint assignment, or as an assignment at all. Until the supplemental bill was filed there was not even an absolute disposal of anything. Prior to the execution sale there was ne more than a series of asserted liens, and as Stellwagen had already made a levy on all the property which he treated as subject to the mortgages, it is not very plain that he could levy complainant’s attachment in antagonism. At least he [615] does not seem to have done so, as he proceeded to sell on the basis of the statute concerning levies on mortgaged property. It would be utterly impossible to work out proceedings under the statute of 1879 from any such multiplicity. It should be construed as it reads, as applying only to what purport to be common-law assignments. If proceedings not in that form are claimed to be fraudulent as to creditors, they must be reached in some other way, and shown to be against some other policy. The law does not avoid honest transfers or securities which are not general assignments. There is still less ground for relief upon the attachment. It has not yet proceeded to judgment, and it is subject to all the prior interests so far as valid. It is not certain that complainants will ever reach a judgment. There is no principle of equity jurisprudence that will allow them to impound this property and tie up these interests now. It was held in Stoddard v. McLane 56 Mich. 11, that, as a general rule, equity will not interfere in favor of even executions on personalty, and in Tyler v. Peatt 30 Mich. 65, as in several previous and subsequent cases, that the creditor must first exhaust his remedy at law before proceeding against equitable interests. There can usually be no difficulty in reaching relief at law in such cases, and there is nothing to show ultimate danger from irresponsibility; and there is no offer to pay the mortgages if they should be found valid, although the attachment must, at best, be subject to them so far as they are good. The only cases cited from our reports, in which relief was given to attaching creditors before judgment, were Hale v. Chandler 3 Mich. 531, and Edson v. Cumings 52 Mich. 52. Both those cases were peculiar, and the defendants in both failed, to raise any objection by demurrer, but saw fit to answer and go to hearing on proofs. They furnish no precedents for this case. We have referred to the merits here, to avoid the necessity of leaving the case open for future litigation on the same matters. The bill, however, is multifarious in assuming in [616] consistent positions — being filed on tbe double theory of a sole claim as attaching creditor to avoid the transaction which, as general creditors, they seek to turn into a statutory assignment. The decree dismissing the bill must be affirmed. Sherwood and Ohamplin, JJ. concurred. Cooley, C. J. concurred in the result.