Popendick v. Frobenius

Ohampdin, J. The bill of complaint in this case was filed in aid of an execution issued upon a judgment recovered in an action of trespass for assault and battery in favor of complainant against defendant Adam Frobenius, and levied upon land conveyed by him before the recovery of the judgment, which conveyances the bill alleges were not real, but were a sham and made and received by the respective parties with the intention of defrauding complainant and other creditors of Adam Frobenius out of their just demands. The defendants answered, denying the fraud alleged, and denying that complainant was a creditor at the time of the conveyances. The case was heard in the court below upon pleadings and proofs taken in open court, and a decree rendered therein dismissing the bill of complaint. Two points are presented for consideration: [318] 1. Can a jadgment creditor, who became so by obtaining a judgment in an action of tort, maintain a bill in aid of execution to set aside conveyances made with a view of placing the property of the defendant beyond the reach of execution in case a judgment shall be recovered in the action? 2. Has the fraud alleged in the bill been established by the proofs in the case? The first presents a question of law, and the second of fact. It is proper that the question of fact be first passed upon, for the reason that, if no case is made by the evidence, it would be unprofitable, as well as unnecessary, to discuss the question of law. The action upon which the judgment was recovered was commenced November 12, 1883, and resulted iu a judgment for plaintiff, December 24, 1884. Some of the conveyances alleged to have been fraudulently made were executed prior to the commencement of the suit, and the others during its pendency. The defendants were examined as witnesses, and a very thorough and searching investigation of the transactions between the parties was had; and the reasons for the conveyances alleged to have been made with a fraudulent intent were very fully given and explained, and it is sufficient to say, without entering into details of the testimony, that we are fully satisfied that none of the conveyances were made in fraud of complainant, or creditors of Adam Frobenius. The decree of the circuit court must be affirmed, with costs. The other Justices concurred.