Hopkins v. Joyce

LtoN, J. The case involves no disputed proposition of law, but turns entirely upon tbe facts. These are few, and are clearly proved, as found by tbe court. Tbe inevitable [445] deduction from them is that the plaintiffs are entitled to the relief demanded, which the circuit court gave them. A few points made in argument will be briefly noticed. The learned counsel for appellants seems to think the plaintiffs cannot prevail in the action unless they show that Mrs. Joyce was an active participant in some scheme of fraud known to her to be such. This is clearly a mistake. ¥e do not suppose she ever had a thought of defrauding any person, but she confided in her husband and allowed him to. retain the title to lot 2, and deal with the lot as his dwn, merely because he desired her to do so, without a thought or suspicion that he would so deal with it as to raise equities in others superior to her own. But having voluntarily put it in the power of her husband to do so, and he having done so, it would be a fraud upon those who dealt with him on the faith of his apparent ownership of the lot to permit her now to assert her alleged equitable interest in the lot. The circuit court so held. It is said also that Gilbert 8. Joyce did not represent to plaintiffs that he owned lot 2. This is probably true. It satisfactorily appears, however, that he stated to them when he applied for credit that he was in good circumstances — had plenty of means to pay them for any professional services they might render him,— and referred them to a certain other person for the particulars of his property and financial condition. They thereupon applied to such person, who informed them that he, Joyce, owned lot 2. It seems that such lot was substantially all the property Joyce had. The appellants are bound by the statements of the person to whom Joyce thus referred the plaintiffs. Mrs. Joyce acted through her husband, and both of them through the person who gave the information. Quifacitper almm facit per se. It is further argued that before the plaintiffs can resort to a creditors’ suit they must exhaust all legal remedies to [446] collect their judgment. This is correct. But when, as in this case, they have issued execution upon their judgment, and the same is returned unsatisfied by the proper officer, this requirement is complied with, and the equitable action may be maintained. E. S. sec. 3029. By the Oowrt — The judgment of the circuit court is affirmed.