Stewart v. Fagan

WOODS. Circuit Judge. The obvious objection to the prayer for injunction is that there is no equity in the bill and on demurrer it would be dismissed. It is a creditor’s bill seeking to subject property of the debtor fraudulent^- conveyed and covered up to the payment of the complainant’s claims. An indispensable requisite to such a bill is that the claims upon which it is based should have been first put in judgment. There is no averment in the bill that this has been done. The bill is predicated on certain drafts alleged to have been drawn by one Miles Owen, and accepted by J. Pinckney Smith and transferred to complainant. but which have never, so far as appears. been reduced to judgment. This is a fatal defect in the bill. The complainant does not set up or claim any lien upoD the property which he seeks to subject to the payment of ids debt. He has simply a debt which he can sue on at law. Until he has exhausted his remedy at law by the recovery of a judgment, equity has no jurisdiction. Non constat but that on an execution he might make his money. Jones v. Green, 1 Wall. [68 U. S.] 330; Beck v. Burdett. 1 Paige. 305; McElvain v. Willis. 9 Wend. 548; Crippen v. Hudson. 3 Kern. [13 N. Y.] 161. But even if this defect in the bill did not exist, I should be constrained to overrule the motion. The answer of Fagan. Couner.v and McCan traverses every allegation of fraud made in the bill, and with the affidavits filed, shows that the claim of the mortgage creditors upon the boat was honest and fair, and the amounts claimed by them justly due. The averment of the bill that the admiralty sale of the Katie was void is entirely without [57] proof to support it. It appears that before the libel the Underwriters Wrecking Company was dismissed, other creditors of the Katie intervened and it was upon their claims she was sold. The sale was made in pursuance of a decree of the court of admiralty. There is no proof and in fact no averment that it was unfairly obtained. This sale cuts off all claims ■of creditors and of the original builders or proprietors of the boat. The purchasers at that sale had the right to place the title where they pleased and to do with the boat as they pleased. There seems to be not the slightest proof of any fraudulent practices on the part of the mortgage creditors of the Katie. They were vigilant and looked after their own interests. The creditors, whose evidences of debt complainant holds, slept on their claims, and two years after a sale of the Katie under an admiralty decree, this bill is filed. The case has' no basis to stand on, either upon the law or the facts. Motion for injunction overruled.