Crockett v. Phinney

Berry, J. This is an action in the nature of trespass or trover, [159] for taking and converting certain lumber, of which plaintiffs claim to he owners by virtue of a sale and delivery thereof to them by its former owner, the firm of J. D. Campbell & Co. The defendants except Phinney, who, as sheriff, acted for his co-defendants, are creditors of J. D. Campbell & Co., and, as such, attached the lumber, upon the basis that, as to them, the sale to plaintiffs was fraudulent. There was competent evidence in the case sufficient to warrant the jury in finding that there was no fraud on the part of the plaintiffs in making the purchase, and that they paid $1,000 of the purchase price of the lumber in good faith, and before notice of any fraudulent intent in making the sale on the part of the firm of Campbell & Co. towards its creditors. For the remainder of the purchase price plaintiffs executed their negotiable promissory note to Campbell & Co., payable in six months, and the evidence tends to show that this note was, by agreement between plaintiffs and Campbell & Co., left in the hands of a third person, (Ball,) by whom the money amount of any shortage in the estimated quantity of the lumber, when ascertained, was to be indorsed on the note, which was then to be handed over to Campbell & Co. The evidence further tended to show that at the time of the attachments, and of notice to plaintiffs of the alleged fraudulent intent of Campbell & Co. in making the sale, the note was still in Ball’s hands, under the agreement mentioned, and that subsequently the indorsement of shortage was made thereon, and the note delivered to Campbell & Co., by whom it was put into Ball’s hands as security for some indebtedness of Campbell & Co. to him, and to a firm of which he was a member, and in this way Ball held the note at the time of the trial of this action. In this state of facts the defendants contend that the plaintiffs’ recovery should at least be limited to the amount which they had paid upon their purchase of the lumber, at the time when they had notice-of the fraudulent intent of Campbell & Co. in making the sale. In certain circumstances, equity affords relief analogous to that which defendants thus seek in this instance; as, for example, in contests as to title to real estate between a subsequent purchaser and persons having prior equitable rights, such as a prior purchaser whose deed or contract is unrecorded, of whose right the subsequent pur [160] chaser had no notice at the time of his purchase; also, in like contests between an honest purchaser and creditors of his vendor, who. claim that the sale was fraudulent as to them,, and who seek to avail themselves of their equitable lien, as creditors, upon their debtor’s, property. In instances like these, where the whole purchase-money has not been paid, in fact, or by the giving by the purchaser of an irrevocable obligation for its payment, equity will sometimes, as respects the prior purchaser or creditor, as the case may be, treat the sale as fraudulent and void by setting it aside, or otherwise, but at-the same time will place the honest purchaser in statu quo, by restoring to him whatever he has paid upon his purchase, and otherwise reinstating him in his position before his purchase. Clements v. Moore, 6 Wall. 299; Lewis v. Phillips, 17 Ind. 108; Hardin v. Harrington, 11 Bush, 367; Tompkins v. Sprout, 55 Cal. 31; 2 Pom. Eq. Jur. §§ 745-751; Wait, Fraud. Conv. §§ 192, 193. But, so far as we discover, this relief is afforded m equitable proceedings only, and only in regard to real estate^ But we think the trial court properly held that in this action, whatever might be done in an equitable proceeding, the defendants could not avail themselves of the equitable doctrine spoken of; for this is an action purely in the nature of the common-law action of trespass or trover. The issues are such, and such only, as pertain to actions of those kinds. The vital issue — the precise matter in dispute upon the allegations of the pleadings — is whether or not the sale by Campbell & Co. to the plaintiffs was wholly fraudulent and void as respected the defendants, as creditors of Campbell & Co., from the fact that it was made with the intent and purpose of defrauding such creditors, to the plaintiffs’ knowledge. What, if any, equitable relief the defendants might be entitled to in case the sale was not thus fraudulent and void was altogether outside of the issues. If the plaintiffs had purchased the property in good faith, and without any knowledge or participation in any fraudulent intent of the vendor, and had paid for it in whole or in part, they had become legal owners of it even as against the vendor’s creditors; and in this action their ownership would entitle them to recover the value of the lumber seized by defendants. It may be possible that by setting up their [161] equities in this action, or some other, and bringing in Ball and Campbell & Co., so as to protect plaintiffs against their outstanding negotiable note, (Nicols v. Crittenden, 55 Ga. 497,) and restore them to their status in quo, the defendants might obtain some such relief as they seek, although the lumber was personal property. But if any such equities could be asserted in such an action as this, they must be set up in the answer. Gen. St. 1878, c. 66, § 96. But, as this action stood at the trial, it was a simple action at law, and its issues purely legal, as before stated. Wait, Fraud. Conv. § 194. These are the only matters which we deem it necessary to discuss in this opinion, and the result is that the order denying a new trial is affirmed.