
    Allen Cadwallader v. The Granville Alexandrian Society, James Doster, et al.
    A judgment creditor may pursue different interests of the debtor, and against different persons, in the same bill. A judgment creditor may demand from his debtor, in general terms, a disclosure of his assets and the names of his debtors.
    This is a bill in chancery from Muskingum county.
    The bill shows that the complainant has a judgment against James Doster and others,' which is unsatisfied, and that the judgment debtors have no property liable to execution at law; that an execution issued upon his judgment, and was levied on March 5, 1842, on all the interest of Doster in a parcel of land, situated in Morgan county, Ohio, and in a certain water privilege thereto-belonging, which land and easement were leased, by the State of Ohio, to one Coneklin, and by him assigned to Doster and Cassell ; that Doster and Cassell’s title is supposed to be only equitable, by reason of the *want of an acknowledgment to the assignment from Coneklin ; that Cassell has no bona fide interest-in said premises, but became a party to the assignment to defraud Doster’s creditors.
    That the Granville Alexandrian Society, of Licking county, pretend to have some interest in, or claim to, the premises and' hydraulic power aforesaid, and in other property of said Doster’s, by way of mortgage or otherwise ; and which said interest, if any such exist, arose out of and was created by banking operations, carried on in violation and in fraud of the several acts of the general assembly of the State of Ohio against unauthorized and illegal banking, by the Granville Alexandrian Society, the said society not being a bank incorporated by law. That the said Gran-ville Alexandrian Society was not authorized by law to transact banking business, and that all interest, claim, or lien of the said Granville Alexandrian Society in, to, or upon the said premises and hydraulic power, or upon either of them, were, by the said Doster and Cassell, given to said society for and on account of the notes and bills thereof, issued and intended to circulate as money, by the said society as a bank, and by the said society lent, by way of banking and discount, to the said Doster and Cassell, for the use of said Doster; and that all such pretended claim, interest, and lien, being in violation of the several laws of this state-against unauthorized banking, are - fraudulent and void. The bill proceeds to allege that a cloud is cast upon the title by reason of this pretended claim of the society, and that Doster fraudulently sets it up to defraud his creditors.
    The society is called upon to discover all property transferred' or sold to it by Doster and Cassell, or either of them, and to release its pretended claim aforesaid. The bill has no charge of combination, and alleges no participation of the Granville Alexandrian Society in the fraud of Doster. It prays that the premises and hydraulic power, and all the interest of Doster and Cassellin said lease, be sold, and the proceeds be applied to complainant's judgment, and for general relief.
    *To this bill the Granville Alexandrian Society demurred, assigning for demurrer:
    1. That the said bill is multifarious in this, that it seeks to draw in question the title of the demurrants to the mortgaged premises described in said bill; and seeks discovery and relief from their said co-dofendants, Doster and Cassell, wholly independent thereof, and touching matter with which these demurrants are in no way concerned.
    2. That there is no matter to impeach or draw in question the title or interest of these demurrants to said lease and demised premises, inasmuch as it appears that the contract between these demurrants, and Doster and Cassell, touching said lease and premises, is fully executed.
    3. That nothing is shown in said bill to impeach the title of these demurrants to said lease and premises, for want of power and authority, on the part of these demurrants, to accept and receive such title, and the assignment thereof.
    4. That if anything is shown to impeach said title, or to avoid the assignment of said lease to these demurrants, and the interest conveyed to them thereby, that matter of avoidance can not be set up by the complainant.
    5. That the said bill shows that neither the said Doster, nor the said Doster and Cassell, have such title to said lease and mortgaged premises, as can be sold by execution at law.
    Doster assigned for additional cause :
    6. That neither the State of Ohio, nor her authorized agents, nor the person holding the legal title to the said demised premises, are made parties to said bill.
    7. That the said bill charges that this demurrant was formerly possessed of large and valuable property, both real and personal, without describing said property, or any part thereof, and asking a discovery relating thereto, whereas no relief could be granted if such discovery were made, or if said allegation were true.
    8. That the charges in the bill respecting the property, money, notes, choses in aetion, etc., of the demurrant, are *loo vague and general, and the bill does not show that he is now possessed of any of the said property, or choses in action, or money, or that if he were, the same are subject to the notion of the court.
    
      9. That the persons indebted to him, on the said choses in action, are not made parties to this bill.
    10. That the discovery asked of all the transactions of this demurrant, for the last six years, is not warranted by any of the charges of said bill.
    H. Stanbeby and T. Ewing, for demurrants :
    We claim, for the Granville Alexandrian Society, that no case is made against it for equitable relief.
    The bill does not charge the society with any fraud or combination, but claims that it holds some interest in the leased premises,, by mortgage or otherwise, which was given or conveyed to the society by Doster and Cassell, on account of the notes issued by the society as a bank, and lent by the society to Doster and Cassell in the way of banking; and that, as the society has no banking powers, such interest is void, as against the laws in restraint of illegal banking, and prays a discovery of the interest so held by the society, in order that it may be declared void.
    It is not alleged, by the bill, that the society has no capacity to hold lands; but the bill proceeds upon the fact, that an interest in the land, or the chattel real, is in the society by virtue of some transfer from Doster and Cassell, and the object of the bill is to-take this-interest from the society, or to declare it void, for the benefit of the complainant.
    I. We insist that a court of equity will not compel a discovery,, or lend its aid in order to enforce a forfeiture. Dunham v. Fanning, 5 Johns. Ch. 145; Beach et al. v. Fulton Bank, 3 Wend. 573; 2 Bridg. Eq. Dig. 418; 2 Ball & Beatty, 125.
    2. The complainant is in no privity with this land; he has not purchased it, is a stranger to it; and, if the court declare *the contract void, non constat, he will ever purchase. Green v. Kemp, 13 Mass. 515.
    The case of a conveyance to defraud creditors, stands upon a different ground. The court only declares the conveyance void as to creditors; it leaves it in force between the parties to the conveyance. The statute makes it void as to creditors, and, therefore, without a purchase, a creditor at large may avoid it.
    3. This society had power to hold lands by the second section of i1s charter. The title passed to it, by assignment, from Doster and Cassell; and, if it were prohibited from holding lands, upon an illegal consideration, and liable to forfeit those lands for violation of law, the state is the proper party to take advantage of that forfeiture. The Banks v. Poiteaux, 3 Rand. 141.
    4. The contract by which the society holds lands is not executory, but executed. The bill charges that some interest has been given to the society by mortgage or otherwise. Now, admitting that the loan was void, or that the note which contains the promise to pay is void, yet this executed thing is not void. 7 Ohio, 71; 3 Ves. 613.
    Goddard & Converse, for complainant, insisted:
    That the bill is not multifarious. 6 Johns. Ch. 139; 12 Maine, 164; Wright, 729; 4 Johns. Ch. 199, 204; 1 Eng. Cond. Ch. 160; 8 Wend. 339.
    That the complainant is entitled to have the premises mentioned in the bill sold, disincumbered of the pretended lien of the Granville society. 2 Hill, 522; 4 Pet. 205, 228; 3 Wend. 574, 584; Swan’s Stat. 137, sec. 9; Swan’s Stat. 154, sec. 64.
    That the holder of a legal title need not, and, in the present case (the state holding that title), can not be defendant. Swan’s Stat. 704, sec. 14; 1 Paige’s Ch. 637. And *Miers. etc. v. Zanesville and Maysville Turnpike Road Company, decided at the present term.
    That the seventh, eighth, ninth, and tenth causes of demurrer by Doster are not well taken, and that complainant is entitled to the relief prayed for as against Doster and Cassell. 6 Ves. 788; 3 Wend. 618; 1 Paige’s Ch. 168, 170; 3 Paige’s Ch. 234; Miers, etc., v. Zanesville and Maysville Turnpike Road Company, ut sup.
    
    That the demurrer to the whole bill is bad, if the complainant is entitled to an answer to any one of the matters stated in the bill; being bad in part, is bad in toto. 4 Ohio, 385; 9 Pet. 632.
   Lane, C. J.

This bill is filed by a judgment creditor of Doster, to discover his effects, from which the complainant may obtain satisfaction of his judgment.

To this bill, the defendants demur.

The right of a judgment creditor, seeking satisfaction, to demand, generally, from bis debtor, a disclosure of his assets and the names of his debtors, without more minute specification, is maintained by this court in another case, decided at the present term-Miers et al. v. Zanesville and Maysville Road Company. The complainant is therefore entitled to a full answer from Doster.

The bill states, amongst other effects of Doster, which it pursues, that be, together with one Cassell, held an equitable leasehold interest in certain lands and hydraulic power from the state; that, in truth, it belongs wholly to Doster. That the Granville Alexandrian Society set up some interest by way of mortgage, which interest or claim arose out of illegal banking operations. That all their interest, claim, or lien on the premises, were given by Doster on account of notes illegally issued, and intended to circulate as money, in violation of the law, and void. The Granville Alexandrian Society is therefore required to disclose what property it has received from Doster, and release its interest. The society demurs to this ^disclosure, on the ground that it may subject it to forfeiture, or its officers to-penalties.

It is conceded, that where a forfeiture or penalties may ensue from the answers to a bill, the defendant is not bound to make it. But the complainant insists, that a demurrer, which covers too much, can not be sustained for any part; and that here, although the society may justly decline answers touching the consideration of the mortgage, they ought to disclose the amount of property transferred, and the extent of their claim to it.

The proper rule of practice, in this respect, is not contested, and we are called upon to decide if this is a case for its application. If this bill had been framed in the alternative, demanding of the defendant what property they derived from Doster, charging that it was under an illegal and void agreement, and asking that it might be set aside, or that, if it should be held valid, the residuary interest of Doster might be subjected to his debt, it would afford an example which the defendant would be protected in withholding a disclosure to a part of the bill, while he would be bound to answer the remainder.

But the mind of the pleader did not embrace such an alternative. He assumed the whole dealings between Doster and the society were illegal, and sought to set the whole aside, without making a statement broad enough to cover a case in which the validity of the mortgage to them could be maintained.

We think his antagonist was warranted in believing that he intended to prefer his claim under no aspect, except on this hypothesis, and is justified in withholding his answer.

Demurrer sustained.  