Meissner vs. Meissner, Intervener. Breslauer vs. Same. It has been a long-established rule in this court, as in most courts, that a creditor cannot maintain such equitable action as a general creditor of the debtor, but must first procure a judgment against the debtor and exhaust his remedy upon such judgment by the issue and return of an execution unsatisfied, before he can maintain an action in equity to reach the property of the debtor which has been fraudulently conveyed. See Montague v. Horton, 12 Wis. 599, 606; Hyde v. Chapman, 33 Wis. 391, 399, 400; Williams v. Sexton, 19 Wis. 42; Gates v. Boomer, 17 Wis. 455; Cornell v. Radway, 22 Wis. 260. These cases make it certain that the appellant, upon the facts stated, could not maintain a creditors' bill to reach the money in question. And if a proceeding by petition and by motion of one creditor to reach money in the hands of a court, apparently belonging to another creditor of a common debtor, may take the place of a creditors' action, we are of the opinion that the petitioning creditor must show that he has exhausted his remedy at law against the common debtor, or he must show a specific lien upon the particular property or money sought to be reached, either by an attachment or execution levied upon the same or upon the property from the sale of which the fund has arisen, as was done in this case upon the intervention of the creditors of Geilfuss and Gore. This proceeding is neither a proceeding in aid of an execution, nor supplementary to an execution, nor a garnishment under the statute, and must therefore be sustained, if sustained at all, as a proceeding in the nature of a creditors' action in equity, and as such action the petition fails to state facts sufficient to sustain it. See sec. 3029, R. S. 1878. The fact that the petition alleges that the petitioner was induced not to take steps to intervene as a creditor with the intervening creditors, Geilfuss and Gore, and have his rights determined in that proceeding, upon the strength of a promise made by the respondents that the balance of Treat and another vs. Hiles. the fund should be applied on his judgment if the intervening creditors succeeded, is a sufficient reason to justify the court in dismissing the petition, even if the petitioner had shown himself to have been otherwise entitled to be heard. He must by that act be held to have waived his right to intervene for this money in the hands of the court. If his statement in this regard be true, it is probable that the petitioner could maintain an action upon such promise, and protect himself in that way, and so render this equitable proceeding unnecessary. We think that, upon all the facts appearing in the record, there was no error on the part of the county court in refusing to grant the prayer of the petitioner. By the Court. The order of the county court appealed from is affirmed. TREAT and another, Appellants, vs. HILES, Respondent. February 5 March 1, 1887. Contracts: Partnership: Statute of frauds. 1. An agreement that A. shall procure the conveyance to B. of lands belonging to a third person, upon which A. has discovered a valuable quarry, that B. shall pay for such land, and that thereafter they shall open and work the quarry together and share the profits equally, is either an agreement for a copartnership or an agreement of copartnership, and for a breach thereof by B., A. may maintain an action for damages. 2. Such a contract is not within the statute of frauds (sec. 2302, R. S.), as being for any interest in lands, nor (sec. 2307) as being by its terms not to be performed within one year. APPEAL from the Circuit Court for Milwaukee County. This case is sufficiently stated in the opinion. The defendants appealed from an order overruling a general de murrer to the complaint. Treat and another vs. Hiles. N. S. Murphey, for the appellants, argued, among other things, that the contract set out in the complaint was in effect an agreement for copartnership in the operation of the quarry, and if executed would convey no interest in land, but only an interest in the profits of working the quarry. Story on Part. 34, 53-60, 220, 42, 48; Brigham v. Dana, 29 Vt. 9; Smith v. Wright, 5 Sandf. 113; Rosenfield v. Haight, 53 Wis. 260; Whitney v. Ludington, 17 id. 140; Upham v. Hewitt, 42 id. 85; Leggett v. Hyde, 58 N. Y. 272; 1 Pars. on Cont. 166; Reid v. Hollinshead, 4 B. & C. 867; Smith v. Watson, 2 id. 401; Heran v. Hall, 1 B. Mon. 159; Berthold v. Goldsmith, 24 How. 536; Gilbank v. Stephenson, 31 Wis. 592; Grant v. Hardy, 33 id. 668; 3 Parsons on Cont. 39; Houston v. Laffee, 46 N. H. 507; N. O., J. & G. N. R. Co. v. Moye, 39 Miss. 374; Coleman v. Eyre, 45 N. Y. 38; Brockett v. Evans, 1 Cush. 79; Preble v. Baldwin, 6 id. 549; Remington v. Palmer, 62 N. Y. 31; Thomas v. Dickinson, 12 id. 364; Thayer v. Vilas, 23 Vt. 494; Nutting v. Dickinson, 8 Allen, 540. The contract was not such that it could not be performed within a year, and it was therefore not void under sec. 2307, R. S. The quarry might be exhausted or one of the parties might die within the year. 3 Parsons on Cont. 35, 36, and note; Rogers v. Brightman, 10 Wis. 63; McClellan v. Sanford, 26 id. 609; Jilson v. Gilbert, id. 637; White v. Hanchett, 21 id. 415; Murray v. Abbot, 61 id. 198; Heath v. Heath, 31 id. 223. The contract has been entirely executed so far as the appellants are concerned, and thereby validated, and this action may therefore be maintained as if the original agreement had been in writing. 3 Parsons on Cont. 37-38; Sheehy v. Adarene, 41 Vt. 541; Coyle v. Davis, 20 Wis. 564; McClellan v. Sanford, 26 id. 609. Contracts of partnership may be formed by parol for a long or indefinite period of time. Story on Part. sec. 86. And a parol contract of partnership to deal in lands is not within the statute. Chester v. Dickerson, 54 N. Treat and another vs. Hiles. Y. 1; Williams v. Gillies, 75 id. 197; Hirbour v. Reeding, 3 Montana, 15. This action is for the violation of an agreement to enter into a contract of partnership, and that agreement was to be executed within a year. Hill v. Palmer, 56 Wis. 123; Browne on Stat. of Frauds (4th ed.), sec. 291a; M'Kay v. Rutherford, 13 Jur. 21; Hoare v. Hindley, 49 Cal. 274. For the respondent the cause was submitted on the brief of John W. Cary. He contended, inter alia, that the contract set out in the complaint is void under secs. 2302, 2304, R. S. The complaint expressly states that the plaintiffs by the transaction acquired an interest in the land, that is, that the defendant took the title in trust for the benefit of himself and the plaintiffs. Daniels v. Bailey, 43 Wis. 566; Tillie v. Dunbar, 62 id. 198; Young v. Lego, 36 id. 394; Warner v. Trow, id. 195; Clark v. Davidson, 53 id. 317. The contract was void under sec. 2307, R. S. If the quarry was inexhaustible, as alleged, and was to be worked under this contract so long as it might last, the contract certainly could not be performed within a year. The whole scope of it shows that the intention of the parties was that it should continue for a great number of years. 3 Parsons on Cont. 35, note g; Cohen v. Stein, 61 Wis. 508. ORTON, J. The complaint states substantially the following facts: The plaintiffs, by their superior scientific knowledge, diligence, observation, and skill, had discovered a very valuable stone quarry on certain lands of William and Lyman Saunders, in Waukesha county, Wisconsin, of which said owners were ignorant; and, wishing to engage some person of abundant means with them in the scheme of mak ing said quarry available to themselves, as well as to such person, by large profits on the investment, they communicated their information of said quarry to the defendant, he being such a person of large means and well suited to such Treat and another vs. Hiles. an enterprise; and they entered into a verbal contract with him that they should negotiate the purchase of said land for not exceeding $12,000, to be paid by the defendant, and procure a deed of said land to him, and that thereafter they, together with the defendant, should forthwith proceed to open and work the said stone quarry, by quarrying, removing, and selling the said stone, for profit, the defendant to advance the necessary money to carry on said business, and the plaintiffs to give and bestow their exclusive time, labor, and services for that purpose, and that the net profits of so opening, working, and developing said stone quarry, and so selling the said stone, should be equally divided between them, that is, one half to go the plaintiffs and one half to the defendant. The plaintiffs, in pursuance of said verbal contract, on the 28th day of September, 1885, by the employment of much of their time, labor, and money, negotiated said purchase for said sum of $12,000, and procured a deed of said lands to be executed and delivered to the defendant, and on the 1st day of October thereafter, they, together with the defendant, employed a foreman for said works, and the plaintiffs purchased tools therefor with the moneys advanced by the defendant for that purpose, and they were shipped to said quarry, and preparations were made to commence said works, and the plaintiffs were ready to perform said contract and commence and prosecute said business on the terms aforesaid with the defendant. The defendant, however, very soon thereafter refused to allow the plaintiffs to bestow any labor, services, or attention to the opening, developing, or working said stone quarry, or to divide any profits therefrom, and utterly refused to commence said works with the plaintiffs in pursuance of said contract, although they were willing and ready to do as they had so agreed to do on their part, and the defendant notified said plaintiffs that they could have no further interest in said works or business or the profits |