87 N.Y. 585 | NY | 1882
The right of the plaintiff to maintain this action depends upon the question whether a judgment creditor is entitled to equitable relief against the real property of a judgment debtor, which has been fraudulently conveyed, before an execution has been issued upon the judgment and an effort made to collect the same out of the property of such debtor. As a general rule a court of equity does not interfere to enforce the payment of debts until the creditor has exhausted all the remedies known to the law to obtain satisfaction on the judgment. It is essential, in order to give the court jurisdiction, and to reach equitable assets, that an execution should be issued upon the judgment and be returned unsatisfied, or, if an action be brought to aid an execution, that it must remain outstanding. When this is done the commencement of an action will give to the plaintiff a specific lien. (Beck v. Burdett, 1 Paige, 305.) The rule that the legal remedy must be exhausted by the judgment debtor before relief can be solicited to reach property not subject to the lien of the judgment is an old one. It existed in England and was followed by the Court of Chancery in this State, before the provision made by the Revised Statutes (2 R.S. 174, § 38), which requires that an execution shall be issued and returned unsatisfied in whole or in part, before a bill shall be filed to compel a discovery of property and to prevent a transfer of the same. (Dunlevy v. Tallmadge, *588
In Estes v. Wilcox (
The counsel for the appellant quotes from the opinion of the chancellor in Brinkerhoff v. Brown (4 Johns. Ch. 674), and of Judge DENIO in Shaw v. Dwight (
We have not been unmindful of other positions urged on the elaborate points of the learned counsel of the appellant, and after full consideration of the questions presented and the various suggestions made we are brought to the conclusion that the General Term were right and the judgment should be affirmed.
All concur.
Judgment affirmed.