§ 82. Laches.-The right to institute a suit for relief against a fraudulent conveyance may be lost in equity by the laches of the complainant in failing to attack the conveyance, after he has knowledge of the material facts as to its fraudulent character,73 and this may be so independently of a statute of limitations," or of the expiration of the statutory period." Where a creditor, having notice of the fraud so that he would be at liberty to treat the conveyance as a nullity, fails to pursue such a course, but lies quietly by resting upon his rights and suffers the grantee or assignee to make valuable improvements, or make other expenditures in reliance upon his title, and thus creates a situation where the granting of the relief sought would prejudice the adverse party, the creditor's equity is regarded as a stale one and the conveyance will not be set aside as fraudulent." In 73. N. Y.-Bliss v. Ball, 9 Johns. 132, where an execution lay dormant in the hands of a sheriff without actual levy. Ill.-Higgins v. Higgins, 219 Ill. 146, 76 N. E. 86; Merrill v. Johnson, 96 Ill. 224; McDowell v. Chicago Steel Works, 22 Ill. App. 405, aff'd 124 Ill. 491, 16 N. E. 854, 7 Am. St. Rep. 381. Iowa.-Mickle V. Walraven, 92 Iowa, 423, 60 N. W. 633, rule applied to suit for proceeds of land fraudulently conveyed. Me.-Herriman v. Townsend (1886), 5 Atl. 267, delay in taking out letters of administration. N. J.-Kinmouth v. Walling (Ch. 1897), 36 Atl. 891; Frenche V. Kitchen, 53 N. J. Eq. 37, 30 Atl. 815; De Graw v. Mechan, 48 N. J. Eq. 219, 21 Atl. 193; Swayze v. Swayze, 9 N. J. Eq. 273. Pa.-Silliman v. Haas, 151 Pa. St. 52, 25 Atl. 72; Ball v. Campbell, 134 Pa. St. 602, 19 Atl. 802. S. C.-Eigleberger v. Kibler, 1 Hill. Wis. 446, 73 N. W. 53. 75. Wall v. Beedy, 161 Mo. 625, 61 S. W. 864. Laches of grantee as precluding attack on creditor's judgment.-A fraudulent transferee, who lived twenty-four years after the commencement of an action to set aside the conveyance, was guilty of gross neglect in not pleading a part payment of the judgment alleged to have been made by the judgment debtor shortly after the rendition of the judgment, and the transferee's executors will not be permitted to set up such payment by supplemental answer. Palen v. Bushnell, 13 N. Y. Supp. 785, 18 Civ. Proc. R. 56. 76. Mo.-Bobb v. Woodward, 50 Mo. 95. determining the staleness of a claim or equity, the court is not confined to the statutory period of limitations, but may refuse relief where the delay is less or greater than the statutory period," if the claim is not reasonably made." Length of time alone is not the test of staleness of a demand, but the question must be determined by the facts and circumstances of each case and according to right and justice." Circumstances not amounting to laches sufficient to deprive a creditor of his right to proceed against the fraudulent transferee of property are set forth in numerous cases cited in the note below.80 N. J.-Coyne v. Sayre, 54 N. J. Eq. 702, 36 Atl. 96. Ohio.-Constable V. Weaser, 8 Ohio Dec. 339, 7 Wkly. L. Bul. 113. Or.-Neppach v. Jones, 20 Or. 491, 26 Pac. 569, 849, 23 Am. St. Rep. 145. Vt.-Allen v. Knowlton, 47 Vt. 512. Wis.-Hamilton Menominee Falls Quarry Co., 106 Wis. 352, 81 N. W. 876. V. 77. Neppach v. Jones, 20 Or. 491; Gay v. Havermale, 27 Wash. 390, 67 Pac. 804. But no delay merely short of such lapse of time as will raise the bar of the statute of limitations or the presumption of satisfaction will preclude a creditor from pursuing the property of his debtor in the hands of a voluntary donee. Izard v. Middleton, Bailey Eq. (S. C.) 228. See also Burne v. Partridge, 61 N. J. Eq. 434, 48 Atl. 770. 78. Gordon V. Anderson (Miss. 1907), 44 So. 67. 79. Marcotte v. Hartman (Minn.), 48 N. W. 767; Neppach v. Jones, supra. 80. N. Y.-Weaver v. Haviland, 142 N. Y. 534, 37 N. E. 641, 40 Am. St. Rep. 631; Bridenbecker v. Mason, 16 How. Pr. 203. U. S.-Lant v. Manley, 75 Fed. 627, 21 C. C. A. 457. Fla.-Robinson v. Springfield Co., 21 Fla. 203. Ill.—Murphy v. Nilles, 62 Ill. App. 193, aff'd 166 Ill. 99, 46 N. E. 772. Iowa.-Applegate v. Applegate, 107 Iowa, 312, 78 N. W. 34; Brundage v. Cheneworth, 101 Iowa, 256, 70 N. W. 211, 63 Am. St. Rep. 382. Ky.-Strutton v. Young, 15 Ky. L. Rep. 657, 25 S. W. 109; Easum v. Pirtle, 5 Ky. L. Rep. 572. Mich.-Upton v. Dennis, 133 Mich. 238, 94 N. W. 728; Barrett v. Lowrey, 77 Mich. 668, 43 N. W. 1065; Reeg v. Burnham, 55 Mich. 39, 20 N. W. 708. 21 N. W. 431. N. J.-Burne v. Partridge, 61 N. J. Eq. 434, 48 Atl. 770; Second Nat. Bank v. Farr (Ch. 1887), 7 Atl. 892. R. I.-Hammond v. Stanton, 4 R. I. 65. S. C.-Charleston Bank v. Dowling, 52 S. C. 345, 29 S. E. 788; National Bank of Newberry v. Kinard, 28 S. C. 101, 5 S. E. 464. Can.-Currie v. Gillespie, 21 Grant Ch. (U. C.) 267. CHAPTER XVI. PLEADINGS. Section 1. The bill, complaint, or petition; jurisdictional facts. 2. Statutory provisions. 3. Right to sue in general; existence of creditor's claim. 4. Time when claim accrued. 5. Ownership and description of property conveyed. 6. Nature and execution of conveyance. 7. Insolvency of debtor or want of assets other than property conveyed. 8. Necessity of alleging facts constituting fraud. 9. Facts need not be minutely alleged. 10. Fraudulent intent of grantor. 11. Knowledge and intent of grantee. 12. Fraudulent intent and knowledge as to subsequent creditors or purchasers. 13. Suing in behalf of all creditors. 14. Excusing laches. 15. Pleading evidence. 18. Prayer for relief. 17. Multifariousness. 18. Amendments. 19. Supplemental pleadings. 20. Demurrer. 21. Cross bill. 22. Plea or answer in general. 23. Voluntary conveyance. 24. Purchaser from fraudulent grantee. 25. Exempt property. 26. Justifying seizure. 27. Answers, denials and admissions as evidence. 28. Replication. 29. Bills of particulars. 30. Venue. 31. Issues, proof and variance generally. 32. Under a general denial. 33. Confession and avoidance. 34. Variance. 35. Disclaimer. Section 1. Pleadings; the bill, complaint or petition; jurisdictional facts.Where a fraudulent conveyance is sought to be 1 set aside by a judgment creditor, the bill, complaint, or petition must allege that such conveyance embarrasses the satisfaction of the debt, and must contain an averment of facts sufficient to present a case for relief to the complainant by a court of equity. It should allege that legal remedies for the satisfaction of the judgment have been exhausted,3 or facts showing that there is no adequate remedy at law. So long as there is an adequate legal remedy against others jointly bound with the grantor equitable relief will not be granted.5 In some jurisdictions the rule is firmly established that the creditor must allege not only that his claim has been reduced to judgment, but also that an execution has been issued thereon and that it has been returned unsatisfied in whole or in part, or such facts as show that he has exhausted his remedy at law, and mere allegations of the debtor's insolvency are insufficient. The general rule is maintained that a court of equity does not interfere to enforce the payment of debts until the creditor has exhausted all the remedies known to the law to obtain satisfaction on the judgment. 1. Dunham v. Cox, 10 N. J. Eq. 437, 64 Am. Dec. 460. 2. Taylor v. Dwyer, 131 Ala. 91, 32 So. 509. 3. Parrott v. Crawford (Ind. T. 1904), 82 S. W. 488; Wyman v. Jensen, 26 Mont. 227, 67 Pac. 114, a com-⚫ plaint is defective if it does not allege the docketing of the creditor's judgment and that he has a lien on the property sought to be appropriated; Stockton v. Lippincott, 37 N. J. Eq. 443, so where it alleges that the execution on the judgment has never been returned. 4. Botsford v. Beers, 11 Conn. 369. 5. Eller v. Lacy, 137 Ind. 436, 36 N. E. 1088. See also Necessity to pursue legal remedy against persons jointly bound with grantor, chap. XV, § 57, supra. 6. Spelman v. Freedman, 130 N. Y. But although 421, 29 N. E. 765; Adsit v. Butler, 87 N. Y. 585; Adee v. Bigler, 81 N. Y. 349; Estes v. Wilcox, 67 N. Y. 264; Allyn v. Thurston, 53 N. Y. 622; Beardsley Scythe Co. v. Foster, 36 N. Y. 561; Dunlevy v. Tallmadge, 32 N. Y. 457; Forbes v. Waller, 25 N. Y. 430; Crippen v. Hudson, 13 N. Y. 161; McElwain v. Willis, 9 Wend. (N. Y.) 548; Corey v. Cornelius, 1 Barb. Ch. (N. Y.) 571; Morrow Shoe Mfg. Co. v. New England Shoe Co., 57 Fed. 685, 8 C. C. A. 652, 24 L. R. A. 417; Baxter v. Moses, 77 Me. 465, 1 Atl. 350; Howe v. Whitney, 66 Me. 17; Griffin v. Nitcher, 57 Me. 270; Corey v. Greene, 51 Me. 114; Dockray v. Mason, 48 Me. 178; Dana v. Haskell, 41 Me. 25; Hortshorn v. Eames, 31 Me. 93; Webster v. Clarke, 25 Me. 313. A complaint which alleges, in an allegation in the bill that execution has been issued on the judgment and returned unsatisfied is sufficient to show that the complainant has exhausted his legal remedy and has no adequate remedy at law, it may appear otherwise. And as neither law nor equity requires the doing of entirely useless things, it has been held in many jurisdictions that a judgment creditor whose judgment would have been a lien on the property but for the fraudulent conveyance, if he alleges and proves that the debtor is insolvent and that the issue of an execution would necessarily be of no practical utility, may proceed to have the conveyance set aside, without the further allegation and proof that an execution has been issued and returned unsatisfied.8 If the creditor wishes to reach and appropriate personal property of the substance, the recovery of judgment by the plaintiff against one of the defendants and the return of an execution unsatisfied; that, after the cause of action accrued. said defendant transferred his property which would be subject to the lien of an execution to his wife, daughter, and brother, by instruments set forth; that said transfers were made without consideration and with intent to hinder, delay, and defraud the plaintiff, sets forth facts sufficient to constitute a cause of action as against a general demurrer. Kain v. Larkin, 141 N. Y. 144, 36 N. E. 9, rev'g 66 Hun, 209, 20 N. Y. Supp. 938. To maintain an action against the estate of a deceased debtor, under N. Y. St. 1897, chap. 417, § 7, it is necessary to allege the facts and acts which the statute itself sets forth as authorizing the action. Rosselle v. Klein, 42 App. Div. (N. Y.) 316, 59 N. Y. Supp. 94. 7. Quinn v. People, 146 Ill. 275, 34 N. E. 148. 8. Ala.-Henderson v. Farley Nat. Bank, 123 Ala. 547, 26 So. 226, 82 Am. St. Rep. 140; Jones v. Smith, 92 Cal.-Lee v. Orr, 70 Cal. 398, 11 Ga.-Thurmond v. Reese, 3 Ga. 449, 46 Am. Dec. 440. Ill.-French V. Commercial Nat. Bank, 199 Ill. 213, 65 N. E. 252, such an allegation is superfluous; Andrews v. Donnerstag, 171 Ill. 329, 49 N. E. 558; Shufeldt v. Boehm, 96 Ill. 560; Weightman v. Hatch, 17 Ill. 281; McDowell v. Cochran, 11 Ill. 31; Miller v. Davidson, 8 Ill. 518, 44 Am. Dec. 715; First Nat. Bank v. Chapman, 77 Ill. App. 105; Binnie v. Walker, 25 Ill. App. 82: Fusze v. Stern, 17 Ill. App. 429. Iowa.-Ticonic Bank v. Harvey, 16 Iowa, 141; Postlewait v. Howes, 3 Iowa, 365. Ky.-Campbell v. Trosper, 108 Ky. 602, 57 S. W. 245, 22 Ky. L. Rep. 277. Minn.-Scanlan V. Murphy, 51 Minn. 536, 53 N. W. 799; Rounds v. Green, 29 Minn. 139, 12 N. W. 454; Banning v. Armstrong, 7 Minn. 40. |