Moore v. Cheeseman

Bills in equity, when required to he veiified. Bills in equity (in the absence of any statute or rule requiring it) need not he yerifled, except when preliminary relief is sought, or in cases where it is sought to transfer into equity matters usually cognizable at law.

Appeal in Chancery from Yan Burén Circuit. This was a bill filed by Franklin M. Moore, George Foote and George F. Bagley, copartners under the name and style of Moore, Foote & Co., against Samuel B. Cheeseman and Catharine Cheeseman. The allegations of the bill are as follows: “That on or about the twenty-sixth day of March, A. D. 1869, one Samuel B. Cheeseman of Lawton, in said county of Yan Burén, was justly indebted unto your orators in the sum of four hundred and forty-one and twelve one-hundredths dollars, and being so indebted, the said Samuel B. Cheeseman, in order to secure to your orators the payment thereof, with interest, did make and execute under his hand and deliver to your orators his certain promissory note, in writing, in words and substance as follows, yiz: “ ‘ $441.12. March 26th, 1869. “ ‘ Thirty days after date I promise to pay, to the order of Moore, Foote & Co., four hundred and forty-one and twelve one-hundredths dollars, value received, with ten per cent, interest, at First National Bank, Paw Paw. (Signed) S. B. Cheeseman.’ [Stamps, twent3r-flve cents.] “And that said Cheeseman paid on said note, on the 7th day of June, 1869, twrenty-five dollars. “And your orators further show that after said note became due and was payable, to wit: on or about the 28tli day of July, 1869, your orators commenced a suit in the circuit court for the county of Van Burén, against the said Samuel B. Oheeseman, to recover the amount due as aforesaid on said promissory note, and that on or about the 29th day of April, A. D. 1870, a copy of said declaration, together with a notice to appear and plead indorsed thereon, was served upon said Samuel B. Oheeseman; that on or about the 11th day .of May, A. D. 1870, a writ of attachment in said cause was issued out of, and under the seal of, said court, directed to the sheriff of said county, commanding him to attach so much of the lands, tenements, goods, chattels, moneys and effects of the said ' Samuel B. Oheeseman, the defendant therein, not. exempt from execution, as would be sufficient to satisfy the demands of your orators against the said Samuel B. Oheeseman, which said wTrit was returnable on the 31st day of May, A. D. 1870. “That on or about the 14th day of May, A. D. 1870; the said sheriff, under and by virtue of said writ of attachment, seized and attached the following described lands and tenements belonging to said Samuel B. . Oheeseman, viz: Lots number three and four, in block number fifteen, in Biteley’s addition to the village of Lawton, in the county of Van Burén, and state of Michigan. “That afterwards, to wit: on or about the 31st day of May, A. D. 1870, the said defendant, Samuel B. Oheeseman, caused his appearance to be entered in said cause, by filing a plea therein of the general issue, together with notice of set-off. And that afterwards, to wit: on or about the 22d day of August, A. D. 1870, your orators recovered judgment in said court against said Samuel B. Oheeseman, for the sum of four hundred and forty-five dollars and sixty-two cents damages, and costs to be taxed. “And your orators further show that the said judgment remaining in Ml force, and the damages and costs remaining unpaid and unsatisfied, your orators, on the 1st day of September, A. D. 1870, for the purpose of obtaining satisfaction thereof, sued out of said court a writ of fieri facias, directed to the sheriff of the county of Van Burén, in which said judgment debtor then and now resides, which was duly indorsed with the date and amount of said judgment, and by Thomas H. Stephenson, as plaintiffs’ attorney, by which said sheriff was commanded that of the goods and chattels, and for the want thereof then of the lands and tenements, of the said Samuel B. Cheeseman, he should cause to be made the said sum for damages and costs recovered as aforesaid; and that he should have that money before said court, at the court-house, in the village of Paw Paw, on the 1st day of November, A. D. 1870, and that he should have then and there that writ. “And your orators further show that on the said 1st day of September, A. D. 1870, said writ was delivered to said sheriff to be executed in due form of law. And that afterwards, on the 28th day of September, A. D. 1870, the said sheriff, William B. Sirrine, by virtue of said writ of fieri facias, levied upon the following described lands and tenements situate in the county of Van Burén, and state of Michigan, viz: Lots three and four, in block number fifteen, in Biteley’s addition to the village of Lawton. “And your orators further show that at the time of contracting said debt, and until the 7th day of June, A. D. 1869, said Samuel B. Cheeseman was the owner in fee of said lots numbér three and four, and on or about the said 7th day of June, 1869, the said Samuel B. Cheeseman, by warranty deed, conveyed said lots to his wife, Catharine Cheeseman, and that said deed was, on the 7th day of June, A. D. 1869, recorded in the office of the register of deeds for the county of Van Burén, in liber 16, on page 394:. “And your orators further show, and upon their information and belief charge the truth to be, that the conveyance from said Samuel B. Cheeseman to his wife, Catharine Cheeseman, was made by said Samuel B. Cheeseman for the purpose of placing the title of said property in his said wife, and thereby to injure, defraud and delay his creditors and deprive your orators of their rights to make their damages and costs, as aforesaid, from said lands; and that your orators have good reason to believe, and charge the truth to be, that said Catharine Cheeseman never did, nor did any other person ever, pay any thing whatsoever to said Samuel B. Cheeseman, as a consideration for said conveyance; but said conveyance was made for the sole and only purpose of defrauding the creditors of said Cheeseman. “And your orators further show that they have good reason to believe, and charge the truth to be, that previous to said conveyance, and at the time thereof, the said Catharine Cheeseman had no property in her own right, or held in trust for her, with which she could, or did, purchase said* lots. That the consideration stated in said deed of conveyance was the sum of nine hundred and fifty dollars, and that upon the execution and delivery thereof, there was no money or other consideration paid by said Catharine Cheeseman to said Samuel B. Cheeseman, or any other person for her, nor did the said Catharine Cheeseman make any promise by way of promissory note, contract, bond or mortgage, by, or under, which she was bound to pay said consideration money, or that created a lien upon said lands and tenements for the amount thereof. “And your orators further show that said land is still held under, and by virtue of, said levy, and that said conveyance to said Catherine Cheeseman constitutes a cloud upon the title thereof, so that your orators are unable, by sale, to make their damages and costs therefrom; and that said Samuel B. Cheeseman has no other personal estate exempt from execution, nor any other real estate than that herein described, from which your orators may be able to make and realize their damages and costs as aforesaid.” The prayer was that said deed from Samuel B. Cheese-man to Catharine Cheeseman be declared null and void, and that said levy be declared to be a valid lien on said property. This bill was demurred to because it was not verified by oath.