Avery & Woodcock v. Petten

| New York Court of Chancery | Jul 1, 1823

The Chancellor.

The cause having been brought to a hearing upon bill and answers, the answers are to be taken as true in all points. The defendant, D. P., is to be considered a bona fide owner of Lamber son’s judgment, to the full value of it, and entitled to collect it. There can be no question between the parties to this suit. All that the plaintiffs seem to claim, is a right of contribution against the owners of other parts of the land in Ulysses, and of other lands in Scott, in case they have to redeem their lands by paying the judgment; and they ask for an assignment of the judgment, to enable them to levy on the lands of others, the proportion that others ought to pay. But the right of contribution, cannot be discussed and settled in this suit, as between the plaintiffs and other persons said to be interested in the lands bound by Lamberson’s judgment, for they are not before the Court. They are not parties to the suit. I cannot even interfere with safety, so far as to direct the judgment to be assigned to the plaintiffs, by way of substitution, upon payment of it; for no certain right, or extent, or amount of contribution, as against any third person, can be ascertained in the present case, and, consequently, no check could be provided against a partial and oppressive use of the judgment in the hands of the plaintiffs. Such a direction would only be creating another chancery suit in favour of some of the claimants, upon whom the plantifis might elect to levy the whole or an undue proportion of the judgment. There might be a succession of suits and assignments, upon the ground on which the assignment is asked for in this case. I must, therefore, refrain from interfering at present, and leave the plaintiffs to their future bill for contribution, whenever they can show themselves entitled to it. In Lawson v. Wright, (1 Cox, 275.) after one surety had been sued at law and paid the money, a bill, by his representatives, against a co-surety for contribution, was sustained; and such a remedy may possibly be open hereafter in favour of the plaintiffs, but the present suit is not adapted to such a case. The injunction heretofore issued is, consequently, dissolved, and the bill dismissed; and as the defendant, Daniel P., has done nothing more than prosecute his lawful rights, and is free from all censure, and without any ground for complaint against him, the bill as to him is dismissed with costs.

Decree accordingly.