Hodge v. Gray

Bill in Aid of Execution — Sufficiency—Joint Debtors — Parties. A bill in aid of execution, seeking to set aside a mortgage given by one of several joint judgment debtors on land belonging to him alone, need not allege that complainant has exhausted his remedy at law against the other debtors, or that they are insolvent; nor are the latter necessary parties to the bill.

Appeal from Macomb; Eldredge, J. Bill in aid of execution by Timothy L. Hodge against William M. Gray and others. From an order overruling his demurrer to the bill, defendant William M. Gray appeals. ■ Defendant William M. Gray appeals from a decree of the circuit court for the county of Macomb, in chancery, overruling his demurrer to the bill of complaint. The bill alleges that complainant, on April 14, 1894, recovered a judgment against Mr. Gray and Henry N. Botsford and William Botsford, and refers to the record of said judgment; that, prior to the rendering of said judgment, Mr. Gray owned in fee simple the real estate described in the bill; that on April 26, 1894, complainant caused a ft. fa. to be issued and levy to be made upon this land to satisfy said judgment ; that said judgment remains wholly unpaid and unsatisfied; that Gray is insolvent; that he executed certain mortgages upon this land for the purpose of defrauding the complainant, and preventing him from realizing on his debt against Gray; that these mortgages were executed to his wife, the defendant Isabella Gray, without consideration; that she fraudulently assigned one of them to the defendants James and William Fogo; and that said assignment was fraudulent, and made for the express purpose of obstructing complainant’s levy. The prayer of the bill is that the mortgage and assignment thereof may be set aside and annulled, and that certain foreclosure proceedings be also set aside and annulled.