Towle v. Janvrin , 61 N.H. 605 ( 1882 )

The only question for consideration is raised by the special demurrer, which sets up that the plaintiff has a plain and adequate remedy at law.

If the demurring defendants hold or claim to hold the premises set off to the plaintiff under fraudulent titles, the demurrer must be overruled; for the established doctrine in this state is, that a creditor has the right to file a bill in equity to set aside a fraudulent conveyance of the debtor's real estate as soon as he has obtained a judgment which is a lien on the property. Dodge v. Griswold, 8 N.H. 425, 426; Tappan v. Evans, 11 N.H. 311; Stone v. Anderson, 26 N.H. 506; Bay State Iron Co. v. Goodall, 39 N.H. 223,228; Sheafe v. Sheafe, 40 N.H. 516, 518. And in such case it is not good cause of demurrer that there is a plain and adequate remedy at law, because no relief is complete and adequate for all purposes except that which removes the fraudulent title (Bump Fr. Conv. 519, and cases cited); hence "bills in equity are . . sustained in such cases everywhere." Richardson, C.J., in Dodge v. Griswold, supra, 426.

But an inspection of the bill shows that the titles of these defendants are not alleged to be fraudulent. In fact, the only allegations are, that one of them is in occupation of the premises set off to the plaintiff, and claims to have some right or interest therein, and that the others also claim some right, title or interest. They are not charged with fraud or knowledge of fraud, and for aught that appears they may be innocent purchasers and upon valuable consideration. It is not even alleged that their claims constitute a cloud on the plaintiff's title; neither is a discovery of facts resting in their knowledge prayed for, nor of deeds, writings, or other things in their custody, possession, or power. It is true that the bill contains a prayer that their claims may be decreed null and void as to the plaintiff, but the trouble is that no case is stated which entitles him to such a decree.

The bill as it stands clearly makes no case for equitable interference against the defendants who have demurred, and must be dismissed as to them unless the necessary amendments are obtained at the trial term.

Demurrer sustained.

SMITH, J., did not sit: the others concurred.