Major v. Lunn

Per Curiam. The complaint in this action, though exceedingly indefinite and [405] ■uncertain, as against a general demurrer states a cause of action for money had and received, and the demurrer thereto was properly overruled. The complaint alleges in substance and effect that at the time stated therein plaintiffs were, and for some time prior thereto had been, engaged in business, and were indebted to numerous creditors. Nor the purpose of applying their property to the payment of their debts, they entered into a creditors’agreement with defendant Lunn and one Leonard, by which they transferred to those parties certain of their property, to be by them sold and the proceeds applied in the discharge of plaintiffs’ debts. A part of the property so transferred was certain real estate, valued at about $5,000. The trustees subsequently conveyed this property to defendant Owen, who, the complaint alleges, had notice and knowledge of the relation between plaintiffs and the trustees,, and that they, the trustees, held title to the property for the purposes stated. Owen paid no consideration for the property, and the conveyance to him was for the purpose of defrauding plaintiffs, in which fraud the trustees and Owen participated. Subsequent to this conveyance this particular property was acquired by a railroad company in condemnation proceedings, for which the company paid Owen the sum of $5,354, less encumbrances amounting in the aggregate to the sum of $3,626.52, leaving a total payment to Owen of $1,727.48. The complaint alleges that the trustees have been discharged by order of the court, that the money so received by Owen has never been applied to the payment of plaintiffs’ debts, and that defendant Owen wrongfully converted the same to his own use. Nrom the allegations of the complaint it is clear that plaintiffs are entitled to the proceeds of this property. The sale to Owen was without consideration and fraudulent, and he has no right in law or equity to retain the money received therefor. Plaintiffs may therefore recover as for money had and received. If the litigation referred to in the trial court’s memorandum involved the issues here presented, defendant may interpose the same in defense. It is clear that the complaint does not disclose a former judgment, concluding the rights of the parties in the present controversy. Order affirmed.