FRANKENTIJAL 'II. GILBERT.
·5
lllainant the right in the first instance to bring his suit in a court of P,quity to compel Baker, as a co-surety, to pay his contributive share of the indebtedness of all the sureties to the city. If the complainant, without having brought a suit at law against Baker, has the right to institute an original proceeding in a court of equity to enforce the payment by Baker of his alleged contributive share of the liability which all the sureties have incurred, then it must follow that he has the right in the same proceeding, upon alleging and showing that he cannot otherwise collect his demand against his co-surety, to pursue the property of that co-surety which it is alleged has been fraudulently conveyed to a third party, who is made a defendant in the suit. That part of the relief sought which relates to the application of certaill property to the satisfaction of the complainant's demand because of the alleged insolvency of Baker, may be said to be incidental to the principal recovery prayed in the bill; and, as a court of equity has jurisdiction to grant the principal relief asked, without reference to the fact that a court of law may have concurrent jurisdiction, it may proceed, upon suitable allegations made, to dispose of the whole controversy. From what has been said, it seems to the court quite apparent that there is a well-founded distinction between a suit of the nature of thiswhich is one to determine the sum which the defendant Robert A. Baker ought to pay his co-surety, and to enforce the payment thereof-and a creditors' bill brought to enforce a liability already established in a suit at law. As bearing on the question decided, see Mason v. Pierron, 63 Wis. 239, 23 N. W. Rep. 119, and Smith v. Rumsey, 33 Mich. 183. Demurrer overruled, with leave to the defendants to answer the bill.
FRANKENTHAL
et al. 'II.
GILBERT
et al.
«(Jircuit Court, S· .D· .Mississippi, W:.D. January Term, 1888.)
1.
FRAUDULEJIIT CONVEYANCES-TAKING TITLE IN WIFE'S NAME-AGREEMENT WITH CREDITORS.
An insolvent trader sold the whole of his estate to certain of his creditors for the amount of their debts, and certain others which they assumed, the total exceeding the value of the estate. The creditors immediately took possession. and managed the business for a few days, after which one of their number bought out the others, and sold the estate to the insolvent's wife, for cash and promissory notes. She then went into possession, under her own sign, employed her husband, but without salary, with others as assistants, and eventually paid off the notes. Held, that although the wife was not shown to have any separate estate prior to the purchase by her, there was no fraud. In a creditors' suit ag-ainst an insolvent's wife to subject property in her hands to the payment of their debts. statements of the husband as to his financial condition made at periods antecedent to his insolvency, to a commercial agency, cannot defeat the rights of the wife, unless pa.rticipa.ted in by her.
B.
HUSBAND AND WIfE-LIABILITY OF WIFE'S ESTATE-DEBTS OF HUSBANDDECLARATIONS TO COMMERCIAL AGENCY.
In Equity.
Creditors' bill.
6 Shelion &:
l'EDliJRAL REPORTER.
Miller, SmifJl,,· &:,Hifsch,for defendan ta·
foricomplainants.
.. HILL, J. The bill,in substance, chargeR that the complainants were, before January, 1885, creditors of said Phil Gilbert; that at that time said Gilbert was the owner of two stores in the city of Vicksburg, in which were $24,000 worth of goods and merchandise. besides the onehalf owner of a stock of goods at in Issaquena county; thaton the 21st day of January , 1885, said Gilbert, for the expressed conaideration of $8.739.45, and the agteement to pay certain taxes due by .said .Gilbert, and other indebtedness, amounting to the surn of $358.45, by an instrument in writing, purporting to be a bill of sale, conveyed all of said goods, and the interest of said Gilbert in the store at Fitler's landing, to Baer & Bro. and others; that on the 10th day of February thereafter said Baer& Bro. ,and others made a pretended sale of said stock of goods and merchandise, and the interest of said Gilbert in the stock of goods at Fitler's landing, to the defendant, Cecilia Gilbert, wife of said Phil Gilbert, for the pretended sum of about $6,000; that said Phil Gilbert remained all the time, and is still, in the possession of said stocks of goods and merchandise unsold, and is carrying on said business in the name of his wife, but in fact for his own benefit; and that said sales and transfers were made with a fraudulent purpose to defeat the complainants, and other creditors of said Phil Gilbert, in the col·lection of their debts, and are therefore void; and prays that the defendant be declared a trustee for the complainants, and other creditors of said Phil Gilbert, as to said stocks of goods, and their proceeds, and for a decree against said Phil Gilbert and wife for the auounts due them. The answers deny all the fraud charged in the bill, which throws the burden upon complainants to prove the same. I have considered evidence, and from it find that the sale made to Baer & Bro. and others, on the 21st of January, 1885, was in payment of debts due these creditors, and the debts assumed by them, which amounted to more than the value of the goods and merchandise in Vicksburg. The proof also shows that the stock of merchandise in the store at Fitler's landing was not of sufficient value to pay the debts owing by that firm. I further find from the evidence that when the purchase was made by Baer & Bro. and others, on the 21st of January, the ·purchasers went into immediate possession, and by their agent continued to sell off the stock until the 10th of February, when the sale was made to Mrs. Gilbert by the agent for one of the creditor firms, who had before that time purchased the interest of the others at a large discount; and that Phil Gilbert had had nothing to do with the business after his sale until the purchase in the name of his wife, so that I am satisfied that the sale from Phil Qilbert to these creditors was a valid sale, and passed to them a good title, and there is no evidE'nce that there was any fraud on their part in the sale to Mrs. Gilbert. It is contended, however, on the part of complainants, that the sale to Mrs. Gilbert was really a sale to Mr. Gilbert, and that the title was taken in her name to defraud his creditors, and to prevent them from
FRANKENTHAL tl. GlLBERT.
7
subjecting these goods to the payment of -their debts, and this question is the only, point in the case that need be considered. The proof shows that the contract of purchase was that Mrs. Gilbert was to pay $400 in cash, give her note for $2,907, indorsed by a solvent indorser, and give her 12 notes, without indorsement, for equal amounts, and falling due at the end of each month, the payment of tbeindorsed note to be secured by a trust deed on the stock which was consummated by the payment of the money, which Mrs. Gilbert borrowed, and the execution and delivery of the notes and trust deed, according to the contract. Mrs. Gilbert immediately.went into possession.ofthe goods, uDder her own sign, and by her husband, son, and daughter, and other clerks employed, has since continued the business, and, though not promptly, has paid off the notes. ' It is contended for complainants that as Mrs. Gilbert is not shown to have had any means of her own with which to make the purchase, that she could not borrow the money, orhuy on credit, and tbat Gilbert, being employed in the business without any contract for wages, the proof showing there was not any agreement for wages, or any paid, other than that he obtained his support, and the contribution to the !;tupport of his family, by his services. Our statute completely emancipates married women from all marital disabiUties as to their personal rights and liabilities as though they were unmarried, enables them to borrow money, property on a credit, and carryon in their own names any lawful business, and makes them liable for all their aontracts, and subject to a personal judgment as though tin'mar;J;ied. It often that friends of the wife are willing to aid her in procllring the means of support for herself and family in case of the inability of her husband to do so, from any cause, to loan her money, sellon a credit, or indorse her paper, and this with the expectation that she will be aided in the management of her business by her husband, whose first duty is to provide for the support of his wife and children, including the education of his children. This may well be done withOllt any fraud or injury to the husband's creditors, provided the husband does not reserve to himselfany interest in the property, or the income of the business, beyond his own support and necessary personal expenses. There is no obligation upon his wife to support and maintain him so long as he is able, by his own labor, to support himself. Applying these rules, sanctioned by the Jaws of this state, I am unable to find, from the evidence, the fraud charged in the bill sufficient to declare Mrs. Gilbert to be the trustee for the creditors of her husband, as prayed for in the bill. Counsel for complainants rely very much upon statements made by Phil Gilbert to the commercial agency as to his financial condition, some time before the sale to his creditors, for the reliefprayed for in the bill. While this evidence might be of weight, upon an attachment issue,as grounds therefor, it cannot defeat the rights of Mrs. Gilbert, upless participated in by her. The purchasers from having obtained a. good title, could convey it to another, although that other knew that the sale upon the part of Gilbert was made with the design to defeat his creditors, had such bflen the casej but the
8
FEDERAL REPORTER.
proof in this case fails to show such fraudulent purpose. The result is tha.t the prayer of the bill must be denied, the bill dismissed, and the complainants decreed to pay the costs.
WOLCOTT
v. STUDEBAKER et al.
(Circuit Oourt, No D. Illinoia. December 15, 1687.) 1. MASTER AND SlllRVANT-NEGLIGEJjfCE OF FELLOW-SERVANTS.
An elevator boy. an engineer. and plaintiff were in the employ of defendant. The engineer's duty was to furnish the m,otive power for an elevator, which carried plaintiff to an upper story to his work, and the boy's duty was to run the same. The engineer always took the elevator on a trial trip every morning with nobody on board.. On one occasion plaintiff entered the elevator in the morning shortly before the 'hour when he was required to go to work, just as the engineer was taking it on the trial trip. The elevator boy was not there, and the plaintiff was injured. Held, that if the injury was caused by negligence other than that of plaintiff, it was the negligence of the elevator boy or the engineer, who were fellow-servants of plaintiff, for which defendant would not be liable; the ordinance of the city requiring persons owning elevators to keep a competent person to run them being merely deduty and liability in regard to such employes. 1 claratory of the In the federal courts of Illinois, where, at the conclusion of plaintiff's testimony. the court would, if a verdict were rendered for him, set the same aside, and motion is Dlade by defendant to direct a verdict for bim, plaintiff is not allowed to take a: nonsuit, but may withdraw a juror and discontinue.
2. PRACTICE IN CIVIL CASES-DISMISSAL AND NONSUIT-ILLINOIS CIRCUIT.
At Law.
Suit for damages for injury to plaintiff while in the defendants' employment,resulting from an elevator accident. The plaintiff's testimony tended to show that he was employed by the defendants, who were mannfacturers and dealers inwll.gons, carriages, etc'., in the city of Chicago, to crate or box carriages. His place of work was on the fourth floor of defendants' building. It was his habit, and that of the other employes, to begin work at 7 o'clock in the morning, and to be carried to the fourth floor by the elevator in question. The elevator was used to carry both freight and passengers, and ordinarily began running at about five minutes before 7 o'clock. It was made to descend to the baselIJ.ent of the building, but the employes got on the elevator platform at the first floor. The elevator was under the control of defendants' engineer, who had charge of the engine in the basement, which supplied the motive power to run the elevator. Defendants also employed an elevator boy, who took charge of the elevator when the engineer informed him it was in working order, and ready to carry the men to their work on the upper floors. Plaintiff's testimony also tended to show that it was the practice of the engineer to make a trial trip before 7 o'clock, with no one on the out of the cylinders, and the elevator, for the purpose of getting the
air
1800 note at end of case.
