Kehoe v. Patton

<p>(1) Election of Remedies.</p> <p>K. recovered judgment in a District Court against D., attaching by the original writ certain real estate of D. Subsequently, and while said judgment was wholly unsatisfied, D. executed a conveyance of said real estate to P., upon the understanding and agreement that P; would pay the judgment of K., with other claims of D. The deed was without money consideration, and was accepted by P. upon said agreement and recorded by him. K. thereupon brought suit against P. to recover the amount of his claim against D.</p> <p>P. filed a special plea in bar, averring that after the execution of the said deed K. filed a bill in equity, alleging that the conveyance was made in fraud of creditors by I), and P., and praying that it be set aside; and further averring that K. had levied execution upon said real estate subsequent to the execution of said conveyance, as the property of D., and that thereby K. had made an election of remedies. '</p> <p>To this plea K. demurred :—</p> <p>Held, the mere bringing of the suit in equity, without proceeding to a final decree, was not in itself an election of remedies.</p> <p>(2) Procedure.</p> <p>Semble: In the ease stated the remedy of a defendant is by motion to require the plaintiff to make an election between the suit in equity and action at law.</p>