
    MURTHA v. CURLEY.
    
      N. Y. Court of Appeals ;
    
    November, 1882.
    [Reversing 47 Super Ct. (J. & S.) 393.]
    Creditor’s Suit. — Fraudulent Conveyance. — Judgment for Amount op Claim.—Pleading.
    A complaint which states that plaintiff is a judgment creditor of one of the clef end ants, having an execution returned unsatisfied, that a chattel mortgage was executed by the debtor and taken by his co-defendant with intent to hinder, delay and defraud the creditors of the former; that the mortgagee has converted the property by a sale, and taken the proceeds to his own use—is sufficient as a creditor’s bill, and will, where no receiver or accounting is necessary, authorize a money judgment against the fraudulent mortgagee for the amount of the plaintiff’s judgment, if that do not exceed the value of the property converted. 
    
    In such case, the fact that something is honestlyidue from the mortgagor to the mortgagee, does not entitle the latter to retain any part of the property or its proceeds against a pursuing creditor, to pay his debt.
    
    A plaintiff should not be turned out of court, when an answer has been interposed, because he has prayed for too much or too little, or' for wrong relief.
    It is immaterial that an equitable action is noticed for trial at a jury term, where neither party claims that it is a legal action, and it is in fact tried by the court. 
    
    A finding that an execution had been returned unsatisfied before the commencement of a creditor’s suit, held justified where it appeared that the return was made on the day on-which the summons was dated and the complaint verified, and the claim that the return was subsequent was not made on the trial.
    It cannot be urged as legal error that a trial judge based his decision upon evidence of one party which was in direct conflict with that of another.
    Appeal from a judgment of the general term of the superior court of the city of New York, which reversed a judgment in favor of plaintiff and directed a new trial.
    [The decision'below is reported 47 Super. Gt. {J. &S.) 393.]
    The action was brought by Thomas Murtha against Michael Curley, impleaded with Edward Doyle. The nature of the action sufficiently appears from the opinion.
    
      Henry S. Bennett and Adolphus D. Pape, for appellant.
    
      George H. Starr, for respondent.
    
      
       To same effect, Warner v. Blakeman, 4 Abb. Ct. App. Dec. 530; Ferguson v. Hillman (Wisc. May, 1882), 12 Northw. R. 389. So where the fraudulent grantee took stock in a corporation in exchange for the thing fraudulently transferred, held, that creditors could reach the stock although it had increased in value. Gillett v. Bate, 10 Abb. N. C. 88; Bump on Fraudulent Conv. 568. See also Steere v. Hoagland, 50 Ill. 377. Compare Phipps v. Sedgwick, 95 U. S. (5 Otto) 3; reversing Sedgwick v. Place, 12 Blatchf. 163; Schnitzer v. Cohen, 7 Hun, 665. Charging separate purchasers of separate parcels, see Bazemore Davis, 55 Geo. 504.
    
    
      
       For the authorities on the distinction between the rights of a fraudulent grantee and of a grantee without notice under a fraudulent conveyance, see Roeber v. Bowe, 26 Hun, 554, and cases cited.
    
    
      
       Compare Dunphy v, Kleinsmith, 11 Wall. 610.
    
   Earl, J.

The complaint in this action alleges that in and prior to April, 1872, the defendant Doyle was indebted to the plaintiff in the sum of $500, to the defendant Curley in the sum of $500, and to one Fitzsimmons in the sum of $300, and that these were all the debts he owed; that in April, 1872, he, Doyle, owned a large amount of personal property worth at least $3,500, and at that time gave the defendant Curley a mortgage thereon for the nominal amount of $3,100, and that that security, by renewals or new mortgages each year executed, was kept in force until October 10, 1878, when the defendant' Curley foreclosed the last mortgage, although there was nothing actually due thereon, and converted the proceeds of the property to his own use; that all the mortgages were made and kept in force for tile purpose of hindering, delaying and defrauding the plaintiff and the other creditors of Doyle ; that on October 10, 1878, the plaintiff recovered judgment upon his demand against Doyle for upwards of $700, and that an execution upon the judgment was issued and returned unsatisfied; and the plaintiff prayed judgment against the defendants that they and each of them be compelled to pay him the aforesaid sum of $734.18, with interest, besides costs.

The defendant Cnrley, in his answer, admitted the giving of the mortgage referred to in the complaint, and the foreclosure of the last mortgage, and denied the other allegations contained in the complaint. The defendant Doyle suffered default. The cause was noticed for trial for “a jury or trial term,” as stated in the printed case, and a trial by jury having been waived, it was tried before a judge without a jury.

Upon the trial the plaintiff gave evidence tending to prove all the allegations contained in the complaint, his only witness being Doyle ; and the defendant Cnrley, as a witness in his own behalf, gave evidence tending to show that the mortgages were given in good faith to secure an indebtedness actually due him.

The trial judge found all of the allegations of fact contained in the complaint to be substantially true. Among his findings of fact was one “ that said chattel mortgages were made by said Doyle, and received by said Curley, with the intent to hinder, delay and defraud this plaintiff and said Fitzsimmons of their lawful suits, damages, debts and demands,” and he found as conclusions of law that the mortgages were fraudulent and void as against the plaintiff, and were made with the intent to hinder, delay and defraud him, and that they did hinder, delay and defraud him in the collection of his claim, and that by reason thereof he suffered damage to the amount of his judgment; that the defendant Curley was liable jointly with Doyle for the amount of plaintiff’s damages, and he directed1 that judgment he entered in favor of plaintiff and against the defendants for the amount of the judgment, with interest and costs.

The defendant Curley filed exceptions to the findings of the judge and his refusals to find as requested, and appealed from the judgment entered in favor of the plaintiff to the general term, and there the judgment was reversed, and a new trial granted for errors of law. It appears from the opinion pronounced at the general term that the action was there treated, not as a creditor’s bill, but as an action at law to recover damages for the fraud alleged, and the conclusion reached was that such an action could not be sustained, and the decision of the general term was sought by Curley’s counsel to be sustained in his argument before us upon the same ground.

We are of opinion, that the learned general term fell into error. The complaint contains all the allegations requisite for what is commonly called a creditor’s bill, to wit: that the plaintiff was a creditor of Doyle, having a judgment and execution returned unsatisfied ; that the mortgages were executed by Doyle with the intent to . hinder, delay and defraud his creditors, and that Curley had converted the mortgaged property by a sale, and had taken the proceeds to his use. The facts alleged, show that the mortgages'were void as to the plaintiff, and the only relief the plaintiff needed was that Curley should pay him out of the money received by him from the debtor’s property, or to the extent of the value of such property taken and converted by him. Hence there can be no reasonable objection to the judgment prayed for. Even if the prayer for judgment was defective for equitable relief, an answer having been interposed, the plaintiff could have any relief “consistent with the case made by the complaint, and embraced within the issues” (Code, §1207). Under our present system of practice a plaintiff is not to be turned out of court when an answer has been interposed, because he has prayed for too much or too little, or for wrong relief.

It matters not that the cause was noticed for trial at a jury term. It does not appear that either party claimed that the action was a legal action, triable by a jury. It was, in fact, tried by the judge, just as equitable actions are required to be tried.

No claim was made, upon the trial, that this was not an equitable action. The judge found all the facts requisite to sustain a creditor’s bill.

It is said that there was no proof that the execution was returned before the commencement of the action. But it does not appear when the action was commenced. The summons is dated October 12, 1878, and the complaint was sworn to on the same day, and alleges that the execution had been issued, and returned unsatisfied. It was proved that the execution was returned in the usual form, unsatisfied, on October 12,1878, and the judge found that it was returned before the commencement of the action. There was no claim at the trial that the execution was returned after the commencement of the action, and we think that the finding, that it was returned before, was justified.

There was proof sufficient to justify a finding, that the property taken by Curley was worth much more than the plaintiff’s judgment. At the time the first mortgage was given, in 1872, the property mortgaged was worth upwards of $3,000. No other proof as to its value was given. There was no claim, upon the trial, and no request to find, that it was not worth, at least, the amount of plaintiff’s claim ; and, in the absence of other proof, the judge was justified in finding, as we must assume he did, that it was worth, when taken and converted by Curley, at least that sum. It cannot be alleged, for legal error, that the judge based his decision upon the evidence of Doyle, which was in direct conflict with that of Curley. That conflict raised a question of credibility, which was to be settled by the trial judge.

There can be no valid objection to the form of the judgment ordered. Curley did not ask that any other judgment should be given to the plaintiff. He did not claim that any accounting should be ordered between him and Doyle, or as to the proceeds of the property sold by him. He gave all the proof he desired to defeat plaintiff’s action. Under the circumstances of the case, this judgment for the recovery of the precise sum of money claimed, was the proper judgment, and the form of the judgment does not stamp this as a legal, rather than an equitable action. A court of equity adapts its relief to the exigencies of the case in hand. It may restrain or compel the defendant, it may appoint a receiver, or order an accounting; may compel specific performance, or order the delivery to the plaintiff of specific real or personal property, or it may order a sum of money to be paid to the plaintiff, and give him a personal judgment therefor. Here no accounting was needed. Even if something was honestly due from Doyle to Gurley, on account of the fraud, Curley could not retain the property, or use its proceeds against a pursuing creditor to pay his debt. The -transaction between him and Boyle was, as to the plaintiff, void, and he could take no benefit from it. The plaintiff was the vigilant creditor, and had priority over other creditors, if there were any. But there appears to have been but one other creditor of Boyle, and that one Fitzimmons, and his claim was apparently barred by the statute of limitations.

Besides, the property was sufficient to pay the plaintiff Fitzsimmons, and Curley. Under such circumstances, all the relief that plaintiff needed was to compel Curley to pay him. There-was no property to be sold. He had converted it, and had the proceeds. Ho receiver was needed, and there were no accounts to be taken or stated.

The judgment ordered was therefore proper. The order of the general term should be reversed, and the judgment of the trial term affirmed, with costs

All the judges concurred.  