Field v. Ashley

Grant, J.

Tbe bill alleges that the Boscommon Lumber *234 Company on August 3, 1887, sold to the defendant its logging railroad property, consisting of locomotives, and other personal property, for $30,000, the last payment to become due October 15, 1887. Upon payment the company agreed to deed to defendant its right of way. Until paid for, the title to all the personal property was to be and remain absolutely in said company. Said contract was duly assigned by said company to complainant. Defendant went into possession of the property. There-is due and unpaid the sum of $6,949.63. Defendant, without the knowledge or consent of complainant, has-sold a large part of said personal property. Defendant-is pecuniarily irresponsible. Complainant has deeds of the right of way ready to be delivered as soon as defendant pays the amount due.

The prayer is for an accounting, for decree to pay the-amount due, that in default thereof the property be sold under the direction of the court, for the appointment of a receiver, and an injunction to restrain the defendant-from disposing of the property.

The defendant demurred, both specially and generally. The demurrer was overruled, and defendant appeals.

The first ground of demurrer is that the persons to-whom defendant sold certain of the personal property, without plaintiffs knowledge or Consent, are not made parties defendant. The only reason for making them parties would be that complainant wished to restrain them from paying defendant for the goods if they had not already done so. If they had paid him for them, they would not have been proper parties defendant, for, as against them, the complainant’s remedy at law would have been complete and ample. If they had not paid him, still they are not necessary parties. Complainant, has a perfect right to pursue his remedy against defendant alojie, and the property still left in his possession. *235 It is certainly equitable treatment on the part of complainant to exhaust his remedy against defendant before proceeding against those who may have purchased in good faith. It does not lie with the defendant to insist that his vendees, to whom he has wrongfully sold property, must be made co-defendants with him, who is primarily liable to complainant.

The second ground of demurrer is that complainants remedy is at law, and not in equity. In this case the remedies at law and in equity are concurrent. It is established beyond controversy that courts of chancery in this State have jurisdiction in cases of this character. Such bills are analogous*to foreclosure bills, and do not seek to enforce a forfeiture. Fitzhugh v. Maxwell, 34 Mich. 138 ; Day v. Dole, 56 Id. 294. But defendant was disposing of property to which he had not the legal title, that title being in complainant. He had only the right of possession. Complainant retained the title for the purpose of securing payment of the purchase price. The defendant was pecuniarily irresponsible. The bill gave the court jurisdiction on all the grounds for which relief is prayed.

The order overruling the demurrer is affirmed, and the record remanded, with leave to answer under the rules.

The other Justices concurred.