Richman v. Donnell.

fraudulent grantors, being present as parties? Since that is the very point or gravamen of the issue-in other words, if the contention of the defendant should prevail, the judgment must be against them-it would seem that all reason and precedent require that they shall be made parties. The charge is directly that, for the purpose of defrauding the defendant, they transferred the title to these goods to Kate Rose Dougherty, and that the complainant had knowledge of the transaction and the purpose which moved them thereto.

In King v. Martin, 2 Ves. Jr. 641, a judgment creditor showed that his debtor had procured insolvency proceedings to be instituted for the purpose of defrauding him of his judgment and made the bankrupt a party. The bankrupt demurred to the bill, upon the ground that he was not a necessary party. The demurrer was overruled.

In Gaylords v. Kelshaw et al., 68 U. S. (1 Wall.) 81, it was held that, in a bill to set aside a conveyance as made without consideration and in fraud of creditors, the alleged grantor is a necessary defendant.

To the same effect is Sewall v. Russell, 2 Paige 175, 176. In the case of Lawrence v. Bank of the Republic, 35 N. Y. 320, 324, the court said: "In the creditor's suit against a judgment debtor to set aside a prior assignment made by him in trust for the benefit of creditors, on the ground of fraud, he is a necessary party." See, also, Van Doren v. Robinson, 1 C. E. Gr. 256.

Besides, in the very many cases which appear in the books of reports instituted by creditors seeking relief against fraudulent transfers of their debtors' property, I think not one can be found in which the debtor has not been made a party. It would seem as though this must be so from the fact that the very object of the bill in this case is to obtain a decree of the court declaring the transfer made by them fraudulent and void. How can it affect them unless they be made parties?

The question still remains, can this cross-bill be so amended by introducing Thomas and E. Samuel Dougherty as parties defendant thereto, and the question involved be litigated in the present proceeding? This must be answered in the negative.

Allen v. Fury.

If the complainant has failed to make all the persons interested parties, the defendant has his remedy by proper pleading—that is, by demurrer or notice of motion to strike out for want of proper parties. If the interests of the defendant be such that it is necessary for him to raise issues not within the scope of the complainant's bill, but which are essential to the establishment of his rights, and to that end new parties must necessarily be brought into the litigation, he can raise such issues by filing an original bill. Shields et al. v. Barrow, 17 How. (U. S.) 129, . 144, 145.

The motion to strike out the cross-bill should prevail, with costs. I will so advise.

DAVID ALLEN et al.

V.

CHARLES J. FURY et al.

1. A cross-bill being a means of defence, the allegations therein must relate to or be so immediately connected with the matter set up in and the issues made by the original bill, as necessarily to be involved in the decree pronounced under the original bill.

2. Matters which may be the foundation of a suit by a defendant, but which are wholly independent of the claims made against him by the complainant, can only be litigated by an original bill and not by cross-bill.

On motion to strike out cross-bill.

Mr. Charles E. Hendrickson, for the motion.

Mr. James Buchanan, contra.

BIRD, V. C.

The original bill in this case was filed for the purpose of obtaining a decree declaring that certain stock which was issued by the defendant the Ironsides Pottery Company was unlaw

Allen . Fury.

fully issued, and that the certificates thereof might be declared void and ordered to be canceled.

The defendants answer, and answer by way of cross-bill. In their cross-bill they set up that, because of the depression in trade and the uncertainty of business in the future, the company decided that certain goods which were in process of manufacture should be completed, and that then all operations of the plant should cease, but that notwithstanding such decision upon the part of the company, the complainants directed the operations of the concern to be continued to its detriment, and pray that they may be enjoined from any further interference.

Notice of motion to strike out the answer by way of cross-bill having been given, the questions arising thereunder are now to be considered. The third and fourth reasons, which are to the effect that the matters introduced in the answer by way of crossbill are entirely separate and distinct from the matter set up in the original bill, and can in no way aid the defendants in their resistance to the original bill, will only be considered.

That these objections to the cross-bill are well taken appears from the very threshold of the investigation. At the opening of every text-book upon the subject, or reported case, it is made clear that a cross-bill must be confined to the subject-matter of the original bill, or in some way connected with it so as to make it a proper subject of defence thereto. In Kirkpatrick v. Corning, 12 Stew. Eq. 136, it was said: "A cross-bill is considered as a mode of defence, and must be confined to the subject of the litigation in the original suit, and cannot be the means of instituting a distinct suit in relation to other matters, and cannot become the foundation of a decree as to such matters." S. C., 13 Stew. Eq. 343; Sebring v. Conkling, 5 Stew. Eq. 24; Kruger v. Ferry, 14 Stew. Eq. 432; Carpenter v. Gray, 10 Stew. Eq. 389; 2 Dan. Ch. Pr. & Pl. 1548; Wright v. Miller, 1 Sandf. 123; Crosse v. De Valle, 1 Wall. 14.

In Galatin v. Erwin, Hopk. 48, it is said: "A cross-bill is a defence, and being so considered is confined to the matters in litigation in the original suit. Without this restriction new matters might be introduced into a litigation by cross-bill without end." S. C., 8 Cow. 361. See, also, 83 Am. Dec. 251.

Frenche v. Kitchen.

JAMES FRENCHE et al.

v.

SENECA B. KITCHEN et al.

A judgment creditor who delays twenty years after obtaining his judgment and after knowledge of the alleged fraud, filing his bill to set aside a conveyance made by the debtor to his wife, on the ground of fraud, is guilty of laches.

Mr. Charles M. Woodruff, for the complainants.

Mr. George M. Shipman, for the defendants.
BIRD, V. C.

The bill of complaint in this cause is filed in order to have a judgment at law declared to be a lien upon lands conveyed to the wife of the defendant Seneca B. Kitchen prior to the rendition of such judgment. The judgment is for $371.93 of principal and $32.52 of costs. It was obtained July 17th, 1872. The action for the recovery of this judgment was instituted October 18th, 1871. The deed of conveyance by which the title was passed to the wife Jane, was dated April 4th, 1872, and recorded the 9th of the same month. The bill in this case was filed April 29th, 1892, more than twenty years after the deed referred to was recorded.

It is alleged in the bill that the conveyance to Mrs. Kitchen was without consideration and void as to creditors.

There are two defences set up by Mrs. Kitchen-one that, although the title to the property in question was originally taken in the name of her husband, she paid the consideration therefor with her own money, and purchased and paid for all of the materials that entered into the construction of the improvements thereon; the other, that if the complainants ever had any rights as against her, they have lost or forfeited them by their laches.

While there is no little uncertainty as to the exact amount of money which Mrs. Kitchen contributed towards the purchase

Frencher. Kitchen.

money for the lot in question, and towards the purchase of the materials used in the construction of the dwelling-house thereon, it cannot be doubted but that she did, out of moneys earned by her own labor and moneys received as portions of her father's estate, make large advances therefor. It is also equally clear that she has had the possession and control of the said premises ever since the erection of the dwelling-house thereon and has paid the taxes thereon.

The uncertainty as to the amount of money which Mrs. Kitchen contributed, arises from the lapse of time since she made such contribution. She was married in 1848, and at that time had saved of her own earnings about $300. This property was purchased, in 1857, for $518. At that time her father advanced to her $500, which, with her own, she paid the consideration for the title. Her husband transacted all the business, and it was understood that the title was to be taken in her name, but it was taken in his name. She also was entitled to other moneys from her father's estate. When she understood that the title was in her husband, she procured it to be transferred to herself. This lapse of time has given rise to the principal doctrine of laches as enunciated and supported in many decisions, especially when it results in such change of circumstances as to be prejudicial to the real interests of the defendant. When such is the case, courts of equity always justify defendants in invoking its aid. In this case the complainants knew of the transfer of this title from an actual inspection of the record, within a year after the entry of their judgment. Since then two important witnesses, as to the amount of money which Mrs. Kitchen actually received from her father's estate, have died. It is very evident also from her appearance upon the witness-stand, as well as from her statements, the transactions of twenty-five and thirty years ago have very greatly faded upon her memory or entirely disappeared. And this is more especially true as to her husband.

In Brown v. Mutual Insurance Co., 5 Stew. Eq. 814, Mr. Justice Scudder, in speaking of this principle, said: "These defendants have delayed making their defence until Israel H. Morehouse and Anthony Meeker, the principal witnesses, are