Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1878-07-19
SUPREME COURT.
FULL TEXT OF DECISION FILED.
Collin Campbell Respondent, Us. Z. II. Jones,
G. W. iShatto and P. B. Christian Partners,
as Jones, shatto d Co., appellants.
OPINION.

Collin Campbell, Respondent, as. Z. II. Jones,
G. W. ,Shatto and P. B. Christian, Partners
as Jones, shatto d; Co., appellants.
OPINION.
Action under the statute to determine
adverse claims to real estate. The COM
plant alleges that plaintiff is the owner,
that the land is vacant and unoccupied, and
that defendants claim some estate or interest
therein adverse to the plaintiff and asks iudg-
ment declaiming such claim unlawful and
void. After various denials the answer sets up
judgment recovered and doeketed In favor of
defendant, by their firm name, against Murdoch
and Margaret Campbell, and another upon an
indebtedness accrued prior to the conveyance
to plaintiff; the issuance OF an execution uponit;
the levy of the execution upon the land
IN question as the property of Murdoch and
Margaret; the sale under the execution; the
purchase of the land by these defendants; the is
suance to them in their firm name of a certif-
cate OF sale; that on day prior to the entry
OF SAID Judgment Murdoch and Margaret We're
owners of the land; that on said day Murdoch
and Margaret. with intent to hinder, delay and
defraud these defendants of their said debt,
and without any actual valuable or adequate
consideration, made deed purporting to con-
vey sad real estate to their son. the plaintiff in
this action, who was then minor in the ser
vice of his said father, and residing with his
said parents as a member of their family; that
SAID deed was not delivered to the
plaintiff IN this action, but put upon record, If
at all, by his said father or by his direction:
that his grantors did not deliver or give
possession of said land to their said
grantee; that said grantors have ever
since the date of their said deed continued in
possession of and to use and occupy said land,
Notwithstanding their said deed, and have not
before the commencement of this action, de-
lvered said deed, nor possession of said land
TO their SAID grantee and son. That the certiti-
cate of sale to these defendants was made in
their hrm, instead of their individual names
without their knowledge or consent, and they
dld not know OF 1t until the commencement of
this action. The answer demands Judgment:
That no person other than the parties to this
action have any interest in said real estate: that
the conveyance to plaintiff be declared void as
to defendants, and set aside with the record
thereof and that plaintiff has no interest in the
land; that it be diudged to be their property
In their individual names, free from all claim
OF plaintiff, and for the correction of the GER
tlilcate of sale and record thereof and that de-
PENDANTS have possession of the land.
10 this part of the answer demurrer was in
terposed on the ground that two causes of &C
ton are improperly united in it. That there is
defect of parties to the counter claim alleged
because Murdoch and Margaret Campbell are
necessary parties to the adjudication thereof
and for the relief demanded by the answer,
and that the facts stated do not constitute a
counter claim against the plaintiff The de-
murrer was sustained. The statute, sec 81
oh. TT, general statutes, allows only one cause
OF demurrer to an answer, to-wit, that it does
not contain counter claim or defense.
The ground that in a counter claim two cnus-
es OF action are improperly united is untenahle
as ground Tor demurrer Ii each is n proper
counter claim to the plaintiffs cause of action
thew both he ipipaH in, he
10 ioin them in the same statement instead of
stating them separately would be improper but
the remedy for that would be by motion and
not by demurrer.
A counter claim must be cause of action in
the defendant against the plaintiff, which may
be adjudged and determined between them.
Sec. So Oh. 66, general statutes. If the cause of
action be such that an action upon it could not
be malntainabe by the defendant alone against
the plaintiff alone, then it is not the subject of
counter claim, and the question whether it is
such cause of action may be raised by the
cause for demurrer given by the statute.
Matter pleaded in an answer may be of such
nature that it may be defense to the action
and also counter claim. Eastman vs. Lewis
~ Mimi, 435; Griffin VS.. Jorgenson, % ib
80; and it may also be of such a nature as to
constitute defense and not be available as a
counter claim against the plaintiff in the ac-
ton, because no affirmative relief can be grant
the plaintiff or defendant.
In this case the facts are set up and the de-
PENDANTS ask such relief as they deem them
selves entitled to- and they certainly ask for
more than can be given in this action. They
ask for the possession of the land; but that
cannot be given them, for the plaintiff is not
IN possession, but other parties are. They ask
also for a reformation of the certificate of sale
executed in enforcing their Judgment against
Murdoch and Margaret Campbell, but the parties
to that judgment are not in this case, and
therefore they cannot have that relief But
the demand for too great relief either in a
complaint or answer does not vitiate the plead
ing Setting aside then the prayer of the
answer so far as it asks relief which defendant
can have only against others than plaintiff it
remains to be considered whether the matter
in the answer demurred to does not constitute
a good defense or counter claim against plain
tiff's action.
may not only attack the cause of action al
Legged, but may allege any estate or interest
legal OF equitable, he has in the land which is
good against the plaintiffs cause of action.
This answer attacks the plaintiffs title
by alleging that the conveyance to him was
never delivered. If this be true the plaintiff
(who is not in possession, but must rely on his
title cannot maintain the action.
lt also puts defendants In the position of par
ties as against whom conveyance made with
intent to hinder, delay Or defraud creditors is
void, land alleges that the conveyance to plaintiff
and upon which he must rely to maintain this
action, was made with such intent and that it
was made without any actual, valuable or ade-
quate consideration. Some criticism is made
upon the language in which this want of con-
sIderatlon is stated, but we think it clearly an
pears from it that there was in fact no consid-
GRAFTON either valuable or adequate, as distin-
gulshed from valuable.
Jc hara CT, falf
making OF, or attempt to make pursuant to it.
the deed, and such want of consideration
as charges the grantee, and the fact
That these defendants, upon debt existing al
the tune OF the attempted fraud have recover
ed and docketed judgment against the grant
ors, and have proceeded to enforce that iudg-
ment. That judgement creditor may. notwith-
standing conveyance of his real estate by the
Judgment debtor, made with intent to hinder
delay or defrand creditors, levy upon and sell
the real estate there is question: as t, the
creditor to defraud whom the conveyance is
made, it is void. Sec. 18,ch. Al General Statutes
and IS OF no effect whatever in the way of pass
ing the title. The title for the purpose of en-
aiding creditors to enforce their debts against
The real estate still remains in the granIor as
though the conveyance had not been
made, and it is equally clear that
the creditor, who has proceeded to enforce his
debt agains- the real estate any one claim
oniouSh such proceedings may
show the conveyance to be void
as against such proceedings whenever any one
shall CLAIM. under such conveyance, and in on
position to the creditors proceedings or the
title derived through them when the claim is
made by the grantee in the fraudulent deed
against the creditor or the purchaser under his
proceedings, the validity of the deed may be
tried between those two and no other parties
are necessary to the liquidation. ACCORDING to
the allegations in this answer the estate or in
terest W neither 1T be legal or equitable, which
the defendants acquired in enforcing their
debt is good as against the title of the plaintiff
and al. II those allegations be true they are en-
titled to judgment to that effect.
The order is reversed.
G1LF1LLAN, C. ].
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