McConnell v. Scott and others. ALEXANDER MCCONNELL vs. OLIVER H. P. SCOTT and others. Where judgment has been rendered against principal and surety, and the principal is insolvent, a Court of Chancery will entertain jurisdiction of a suit brought by the surety for the purpose of reaching credits of the principal, and appropriating them in payment of the judgment, although the surety has not paid the money. THIS is a CASE IN CHANCERY, reserved in the County of MORGAN. The bill is filed by the complainant, as a surety of the principal debtor, against him and others, in whose hands the principal debtor has credits. The bill states, that judgment at law has been rendered against both principal and surety; that the principal debtor is insolvent, and seeks the appropriation of the credits of the principal, in the hands of the debtors, to the satisfaction of the judgment against both him and the complainant, who is his surety. The bill makes the judgment creditor a party merely, that he may receive the money on his judgment. Some of the defendants have answered, but the judgment creditor and the principal debtor do not defend. John Welch, for the Complainant. In support of the position, that chancery had jurisdiction in a case like this, the following authorities were quoted: Stump v. Rogers, 1 Ohio Rep. 533; King v. Baldwin, 2 Johns. Ch. Rep. 561; Rees v. Bersington, 2 Ves. Ch. 540; Hayes v. Ward, 4 Johns. Ch. Rep. 132; Wright v. Simpson, 6 Vesey, 734; Mit. Eq. Pl. 148; Lord Ranebaugh v. Hayes, 1 Vern. 190; Ward v. Henry, 5 Cowen's Rep. 596; Nesbit v. Smith, 2 Brown's Ch. 451; Williams v. Helme, 1 Dev. Rep. 162; Tankersly v. Anderson et al., 4 Des. Rep. 47; Taylor v. IN BANK. Dec. Term, 1846. McConnell v. Scott and others. 1846. IN BANK. Heriot, Ibid. 227; Bank of Lake Erie v. Western Reserve Dec. Term, Bank, 11 Ohio Rep. 449; Hampton v. Levy, 1 McCord, 116; Gilmore v. Miami Ex. Co., 2 Ohio Rep. 294; and Piatt v. St. Clair's Heirs, 6 Ohio Rep. 227. It was further contended, that the defendants, by answering, admitted the jurisdiction of the Court over the subject matter, and that it was now too late to object that the Court had not, according to the usages of a Court of Chancery, the power to grant the relief sought; in support of which the following authorities were adduced: Rees v. Smith, 1 Ohio Rep. 127; Gilmore's History, and Practice of Chancery, 219. C. B. Goddard, for the Defendants. No argument for the defendants came to the possession of the Reporter. WOOD, C. J. The question raised by counsel is, whether a court of equity will entertain jurisdiction in a case like this? It is insisted, in argument, that the complainant is without remedy in any form, until the actual advance of the money due from his principal. At law, the position is doubtless correct. An action to recover for money paid for another, does not lie, unless payment is made and proved on the trial, nor can the principal debtor be made liable at law for subjecting his surety to the peril of paying his debt, until the injury actually accrues by payment. This is all very true; but there is, nevertheless, a great variety of circumstances, where equity steps in, for the reason that the law affords no adequate redress, and prevents impending or threatened injury. The surety, however, occupies ground peculiar to his own relation, and is favored in both legal and equitable tribunals. Numerous cases are cited by counsel, where principles analogous to those sought to be applied here, have been recognized in equity; and we think the complainant is within the authority of such adjudications. Indeed, in 1 Ohio Rep. 533, the pre McConnell v. Scott and others. cise question now raised received the sanction of this Court, IN BANK. and, in our view, the authority of that case should not be Dec. Term shaken. What are the obligations of the principal debtor to his surety? Certainly to save him harmless from every injury which may result from such relation; and a promise is implied to this effect, as valid as if made in express terms, between the parties; 5 Cowen Rep. 596. There is no adequate remedy at law, when the principal debtor is insolvent, by which his effects and credits in the hands of others can be made to be applied for the benefit of the surety. Certainly not, as we have already said, without the surety first pays the debt. And such payment may be attended with great inconvenience and severe sacrifices of property; burdens which surely ought not to be imposed, if they can, with propriety and justice, be avoided. In 6 Ves. 734, it is said, "that equity will compel the principal to pay the debt, after due, at the instance of the surety." In 4 Def. 47," that it would be hard on sureties, if they were compelled 'to wait till judgment against them, or they had paid the debt, 'before they could have recourse to their principal, who might waste his effects before their eyes." Other cases might be cited to the same import. If, then, the principal debtor may be forced to pay the debt at the instance of the surety, it would seem to follow, that the property, credits, or effects of such principal may be followed into the hands of others. It must not be understood that the judgment creditor can be delayed in his remedy against the surety. He has his judgment, and may take out his execution at pleasure; but if he has not collected his money of the surety, and the surety has made it out of the property or credits of the principal, equity will decree its application in discharge of the creditor's judgment against the surety. Decree for Complainant. 1846. Laughery v. Laughery and others. IN BANK. Dec. Term, 1846. HANNAH LAUGHERY VS. CHARLES AND WILLIAM LAUGH ERY. A case in divorce, or for divorce and alimony, cannot be appealed from the Court of But if, in such case, a third person is made defendant, such defendant may appeal so THIS is a CASE IN CHANCERY, appealed into the Supreme Court from the Court of Common Pleas, reserved in the County of SENECA. The original bill was filed on the 13th January, 1845, in the Court of Common Pleas of Seneca county, by the complainant, Hannah Laughery, against the defendants, praying to be divorced from the defendant, Charles Laughery, her husband, and, also, for alimony. She charges further, that certain lands specified in the bill had been conveyed by her husband and herself, to William Laughery; that this conveyance was without consideration, and with an intent to defraud her of her rights; and prays that the alimony which may be allowed may be made a charge upon the land. The defendants both answer at great length, and deny all fraud, &c. This case came on to hearing in said Court of Common Pleas at the March term, 1845, at which term the Court dismissed the petition, so far as there was a prayer for divorce, but found that the petitioner was entitled to alimony, and decreed accordingly, fixing the amount at one hundred and seventyfive dollars. The Court further found, that the deed referred to in the petition was executed without consideration, and decreed that the same was fraudulent and void, as against complainant, and made the decree a charge upon the said land in the hands of the said defendant, William. Laughery v. Laughery and others. From this decree the defendant, William Laughery, appealed IN BANK. to this Court. W. P. Noble, for Complainant. Cowdrey & Wilson, for Defendants. HITCHCOCK, J. This is a case somewhat anomalous in its character. The complainant filed her bill against her husband and a third person, praying for a divorce, for alimony, and that the alimony might be charged upon the land of that third person, because her husband and herself had conveyed land to him without consideration, for the purpose of defrauding her of her alimony. The Court of Common Pleas decided that she was not entitled to a divorce, but was entitled to alimony, and charged the alimony upon the land conveyed. The first question which presents itself for consideration, is, whether the case is one which could be brought into this Court by appeal. Had it been a mere petition for divorce, or for divorce and alimony, under the statute, no matter what the decision of the Court of Common Pleas might have been, there could have been no appeal. Although the proceeding in such cases is, in form, as in chancery, yet this Court have long since decided, that when the decree has been once made, there could be no review; Bascom v. Bascom, 7 Ohio Rep. 125, pt. II. And, surely, if there could be no review, there can be no appeal. But this is not merely a petition for divorce and alimony. The complainant not only seeks to be divorced from her husband and for alimony, but she makes William Laughery, a third person, party defendant, charging that he has in his possession lands conveyed to him for the express purpose of defrauding her of her alimony. This certainly looks a little like multifariousness. But, let this be as it may, the relief sought against William Laughery is one peculiarly within the equity jurisdiction of the Court, and he has the same right and privilege of defence that he would have had, had the complain Dec. Term, 1846.. |