Linn v. Wheeler.

as brought, make a motion to dissolve the injunction issued, so far as to permit their claims upon said judgment to be satisfied. They base their claims upon an order alleged to have been given to them by Charles H. Wheeler, and his son Charles H. Wheeler, junior, upon Wheeler and Son's attorneys, Messrs. Runyon and Leonard. The date of this order was March 21st, 1870. It was an order on the claim against the Montclair Railway Company, (given pending the suit against said company) to secure to said firm not only the sum then alleged to be due them from Charles H. Wheeler, junior, viz. $1055.25, but such further sum as should accrue and become due to them from said Charles H. Wheeler, junior, which last mentioned sum amounted on August 12th, 1870, to $634.39, making the total amount alleged to be due the firm under said order, $1689.64.

The judgment against the said railway company, exclusive of costs, amounts to $1961.50. The difference between $1961.50 and $1689.64, is $271.86, and out of this residue Messrs. Runyon and Leonard request permission to deduct $250 for their counsel fees, leaving only $21.86 to be finally disposed of.

The order given to the said firm was presented to said attorneys on the same 21st day of March, 1870, and recognized' by said attorneys.

The insistment of the firm upon this motion, must doubtless be that they are the equitable assignees of a part of the said judgment, and in the absence of fraud their insistment would be proper, for a debtor may prefer one creditor to another.

The case of the complainants is based upon the fraud committed upon them. They submit, that this is a fraudu lent attempt to pay Charles H. Wheeler, junior's, debt with Charles H. Wheeler's money.

First. The money is Charles H. Wheeler's. It is true that the claim was sued and judgment recovered in the name of father and son, jointly. But the affidavit of Hernando A. Fuller, annexed to the bill of complaint, shows

Linn v. Wheeler.

under what circumstances, and for what reasons, the son was brought into the contract.

It appears by this affidavit, that on July 17th, 1869, proposals in writing were made by Charles H. Wheeler, which were signed by said Wheeler alone, and then accepted by said Fuller on behalf of the company. Nearly two months afterwards, Wheeler went to the office of said railway company, and desired to change the contract by inserting therein, after his own name, the words "and Son."

The motives that prompted that change might have been either laudable or fraudulent. But what language could more clearly reveal a fraudulent contrivance to avoid the payment of a debt? "That his creditors were suing him out where he lived, and wanted to ruin him; he wanted it just fixed so that they could not come and damage, him, or seize his property."

As against the persons this alteration was intended to prejudice, it is void; that is to say, as to the complainants the contract must still be regarded as the contract of Charles H. Wheeler alone.

But secondly, the debt is Charles H. Wheeler, junior's, (i. e. the debt of $1689.64 claimed to be due the firm of Bryant and Co.)

H. W. Morehouse, (of the firm of said Bryant and Co.), in his affidavit asserts this to be the case. He nowhere pretends that Charles H. Wheeler, the father, is said firm's debtor, but swears that everything was charged against the son. But a distinction must be taken.

The firm's claim under the order is in part prospective, in part retrospective.

1st, prospectively. As to the supplies furnished subsequently to March 21st, 1870, (the time when the order was given), they may have been furnished in good faith by said firm, on the security of said order. If that were the case, their equity as to this part of their demand appears to be as great as that of the complainants.

2nd, retrospectively. No such grounds however can be

Linn v. Wheeler.

taken in reference to supplies furnished prior to March 21st, 1870. The firm (so we must conclude from H. W. Morehouse's affidavit) have given credit to the son alone. It would seem as if father and son might, as to at least a part of the claim, have been made jointly liable. Yet the firm elected to make the son their debtor, they cannot now hold the father. The election having been made, the father is under no legal obligation to them, and that, supposing that he may have received a benefit. Hetfield v. Dow, 3 Dutcher 440.

The father being under no legal obligation to the firm, the assignment of his interest in the judgment was purely voluntary. But a voluntary assignment is not allowed to prevail against those who were creditors prior to the assignment. 1 Story's Eq. Jur., § 381.

Bona fides is not enough in such a case, the assignment must be made on valuable consideration; and here the father received no benefit from his assignment.

But in consequence of the fraud in affixing the words. "and Son," to the contract with the Montclair Railway Company, the entire beneficial interest must be considered to be in Charles H. Wheeler, and nothing valuable could be considered as having passed, when said order was given to said firm, so far as said order or assignment was intended to embrace charges and debts that were prior to March 21st, 1870.

To postpone their claim to the claim of the complainants, can work them no injury; they have all their remedies unimpaired against the son.

It is claimed that over and above the $1689.64 to be paid to the firm of Bryant and Co., $250 should be paid out of the residue of the judgment for counsel fees. But if the order given before judgment be an equitable assignment to the full amount claimed, said firm ought to contribute proportionally to the expenses of a suit in which said firm were chiefly interested.

If this injunction is dissolved to the extent asked, the

Linn v. Wheeler.

case will be practically at an end. It might be desirable to obtain the answer of Bryant and Co., as well as of the defendants.

If the court is of the opinion that the complainants in this cause have any merits, they would beg leave to amend, without prejudice to the injunction, by making the members of the said firm parties, and by making such further amend-. ments as will, without changing the nature of the case presented by the bill of complaint, enable the court to make a decree that would afford the complainants adequate relief.

THE CHANCELLOR.

The injunction in this case is against C. H. Wheeler, and his son C. H. Wheeler, junior, who are the only defendants. It is to restrain them from receiving a sum of money in the hands of Runyon and Leonard, who, as their attorneys-atlaw, have collected it for them, and from permitting it to be paid to any one for them or on their behalf. The defendants have not answered, or applied to dissolve or modify the injunction.

The application is made by Bryant and Co., who claim to be creditors of C. H. Wheeler, junior, and to hold an order of C. H. Wheeler and Son, both defendants, on Runyon and Leonard, for the amount of this debt, to be paid out of the money collected by them. This order is dated and was presented to Runyon and Leonard before the injunction. The indebtedness to Bryant and Co., and the order to them are not stated in the bill, and as there is no answer, are shown by affidavits to which no objections is made by the complainants, who rebut them by a counter affidavit.

No one but a party to a suit can make any motion in it, except for the purpose of being made a party. The defendants only are enjoined. If they do not wish to be free from the injunction no one else can ask it for them. If it needs further action on the part of the defendants to authorize their attorneys to pay the money to Bryant and Co., the dissolution alone would be of no use to Bryant and Co.

Wetmore v. Midmer.

If the defendants would authorize the money to be paid, they would apply for the dissolution or permit it to be applied for in their name.

If, on the other hand, Bryant and Co. have, as they claim, an order given and signed in good faith before the injunc tion, which in effect assigns these moneys or any part thereof to them, especially if accepted by these attorneys, they have their remedy against them, and Runyon and Leonard would be warranted and compelled to pay these moneys to them, and they would not pay them as the attorneys of Wheeler and Son, but by virtue of an assignment by which the moneys are claimed, not under, but adversely to them. If the moneys are not so assigned, the injunction ought not to be dissolved, except for want of equity appearing either on the face of the bill or by the denials of the

answer.

The motion must be denied. '

WETMORE and others vs. MIDMER, sheriff, and another.

Where a testator made his executors trustees of all property, estate or interests, given or devised by his will (excepting a life estate in the mansionhouse devised to his son), with authority to sell and convey all or any part of his real estate, the power to sell prevails over the prior devises; and an execution levying on such estate and interests, issued after the same were sold and conveyed by the executors, upon a judgment recovered before such sale and conveyance, is subordinate to the power of sale and can have no effect on the property.

This cause was argued before the Hon. Joseph F. Randolph, one of the masters of the court, sitting for the Chancellor, on demurrer to a bill for injunction.

Mr. Scofield, in support of the demurrer.

Messrs. L. & A. Zabriskie, for complainants, contra.