Probert v. McDonald

Citations

• 2 S.D. 495
• 51 N.W. 212
• 1892 S.D. LEXIS 13

Syllabus

<p>1. Whore the apparent owner of a piece of real estate upon which the sheriff has levied an execution to satisfy a judgment against the apparent owner's grantor brings an action against the sheriff to restrain such sale, and the sheriff answers, justifying his levy and threatened sale on the ground that the conveyance from plaintiff’s grantor to plaintiff was void, because made with intent to delay and defraud creditors, the allegation? of the answer charging such fraudulent intent are to be tested, as to sufficiency, by the same rules as similar allegations would be in a complaint in an action to set aside such..conveyance on the same ground.</p> <p>In such complaint, or such answer, the allegation that such conveyance 2. was made with intent to delay and defraud the grantor’s creditors is sufficient, for it specifically avers the ultimate fact which, under the statute, makes such conveyance void.</p> <p>3. In such case the answer need not allege that the grantor and judgment debtor had no other property from which the judgment might be satisfied. Such allegation might be necessary to justify a creditor in first invoking the equitable powers of a court, on the ground that a court of equity will not take jurisdiction of a controversy if the parties have an adequate remedy at law, but where the equitable powers of the court are already set in motion by the plain till, and the court has taken jurisdiction of the controversy, the case comes within the spirit of the rule that, when the equity powers of the court have been once brought into action, the active jurisdiction of the court will be continued “until full justice has been done between the parties.</p> <p>4. In this case the evidence examined and held to support the judgment of the trial court.</p> <p>(Syllabus by the Court.</p>