The clarion. [volume] (Jackson, Miss.) 1883-1888, 1886-12-15
V. & NJ. r. r. Co,


| w. H. PHILLIPS, EX'R.
Appeal from the Chancery Court of
| Warren County. Hon. Warren Cowan,
| Chancellor.
Nugent & Melville, for the appellant
l.. w. Magruder, for the appellee.
In 1873. one c. X. Marshall sold GER
tain property in Vicksburg to the Vicks-
| burg and Meridian Railroad Company,
receiving from the Company five promis-
sorry notes for So, 400 each, secured by d
deed of trust on the property conveyed.
In 1875, Phillip Phillips, who was a
| creditor OF Marshall at the time the
| above conveyance was msde, obtained a
| judgment against Marshall for 500 60
| Execution was issued and a return Of
RuiiG bona made. Marshall transferred
| the five promissory notes received from
| the railroad company to j. K. Mcdowell /;
| the date Of transfer is not given. Two
of these notes we're paid to Mcdowell
aud he obtained Judgment against the
railroad company on the other three I;
he date of this judgment is not given.
| In April, 1880, Phillip Phillips filed this
bill in chancery against Marshall, Nc
| Dowell and the VIcksbIrg and Meridian
Railroad Company, charging that the
| transfer of the notes by Marshall t.,
| Mcdowell was made without csnsidera-
ton and to hinder, delay and defraud
the creditors of Marshall, and praying
that 1t be annulled and that the property
IN the deed of trust 10 SECURE the,t
| notes be sold to satisfy his judgment
| against MARSHALL, in default OF payment
OF The same. A decree pro cOnfess0 was
| taken againss Marshall. Mcdowell, who
was nonresident, answered, denying
| fraud. Certain interrogalions were then
| propounded TO him, notice of which was
| given to his solicitor of record. On his
failure to answer them, on motion of
mplainant his answer was stricken
from the file, and a decree pro coafesso
entered against him. The railroad COM
pany answered admitting that there was
sill due on the notes something over
$4,000, and expressing its Willingness
TO pay the same to the proper party.
Mcdowell having threatened to levy an
execution against the railroad company.
on February /, 1881, the company paid
to him the remainder due by it on his
Judgment, taking q note signed by A. +. |
Pittman and J. A Klein, Sr., for
Sl9o9.36 as indemnity against loss by
the determination of this suit This /
note is now worthless, both signers being /
lnsolyent. The railroad company fled /
an amended answer setting out the |
above facts and asking TO nc discharged |
Phillip Phillips having died the suit /
was revived in the name of his executor. |
w. III. Phillips. The chancellor found /
for the complainant, ordered that Mar |
shall and the Vicksburg and Meridian /
Railroad Company pay the judgment OF |
complainant, and in default that the |
property conveyed to the railroad com
pany be sold to satisfy the same. The |
railroad company appealed.
CAMPBELL, j., delivered the opinion of |
the Court.
The jurisdiction of court of chancery /
to aid a judgment creditor, who has ex- 1
hausted his remedy at law by execution /
aud return of HuLia bona, to reach effects
of his debtor fraudulentiy transferred
Is undOubted, antedates any statutory
provision on the subject, and j. not
affected by statutory provisions for gar
nlshment at law.
The appellant, after service of the
summons in this case, could not paw the
debt to Mcdowell, except at its peril |
and 1t fully recognized this by the
arrangement made for its indemnity.
and now that this arrangement, of it, /,
own making, has proved worthless a.
indemnity. it cannot be allowed to avoid
legal responsibility TO the complainant.
who was not party to the arrangement.
If it be true that McDowell's answer
was Improperly stricken out he does not
of it, and the appellant hes no
right to do it. Affirmed