75 N.J. Eq. 443 | New York Court of Chancery | 1909
This bill is filed to restrain the' further prosecution of an attachment suit in the Hudson circuit court, in which the General Engineering Company is plaintiff and Joseph Bray is defendant.
The facts are that on September 3d, 1907, the complainants Joseph Bray and Mary J., his wife, made a conveyance to the General Engineering Company of a lot of land in the township of Kearny, in the county of Hudson, by a warranty deed in which they covenanted that the land was free of all encumbrances. The title to the lands conveyed was in the wife, so that she was bound by the covenant. Gen. Stat. 2012 § 7.
The grantee in October, 1907, discovered that there were municipal assessments against the property amounting to upwards of $300. On July 21st, 1908, it paid the municipality $328.27 to satisfy these liens.
Joseph Bray, one of the complainants to. this suit, held title to another lot in the same township. At the time of the transactions herein recited he was residing and had for many years been residing in the State of Nevada. The grantee, having-paid the amount of the assessments, in the month of December, 1907, caused the attachment now complained of to be issued out of the Hudson circuit court against Joseph Bray alone to recover the damages which it had suffered by reason of the breach of the covenant against encumbrances contained in the deed above mentioned. The attachment proceeding was taken under the act for the relief of creditors against absent and absconding debtors. P. L. 1901 p. 158. It was begun by the usual affidavit against non-resident debtors, made by Alexander H. Mathesius, president of the engineering company, which stated that the defendant Joseph Bray was a non-resident and was indebted to the General Engineering Company in the sum of $321.33. In due course an auditor was appointed who sold the attached property. It was purchased by the General Engineer
The proceedings in the attachment suit have not been laid before the court, but it will be assumed not only that they were brought under the act above mentioned, but also that they were entirely regular as an attachment suit under the act above mentioned against Joseph Bray alone. The evidence shows that this lot which is valued by the witnesses at from $750 to $900 was sold at the auditor’s sale and purchased by the General Engineering Company for $25, subject to a municipal levy of some soyt, on which there was due something over a hundred dollars. Notwithstanding the sale of the lot in question and the purchase of it by the General Engineering Company, that company still claims that there is due to it over $400 on account of the judgment recovered by it in the attachment suit, including costs and expenses theteon. The bill alleges and the answer admits that the General Engineering Company is about to take proceedings to include in the attachment other lands belonging to the said Joseph Bray and sell them for the purpose of raising the four hundred odd dollars yet claimed to be in arrear.
This whole attachment proceeding, including the auditor’s sale and the auditor’s deed, is now complained of upon two grounds—first, because the attachment proceeding was against Joseph Bray alone, whereas it was based upon a covenant which was made by Joseph Bray and Mary J., his wife, in the deed above mentioned; second, that the proceeding was surreptitiously and oppressively carried on without the knowledge of the said Joseph Bray, and is, therefore, as to him constructively fraudulent and consequently void.
First. As to the first cause of complaint; assuming for the sake of the argument that an action for damages may be cognizable by the circuit court in an attachment suit upon the ground that the damages in the particular case are mere matter of calculation, can the plaintiff in the attachment suit in question proceed against one of two joint covenantors, or must the action be brought against the two? The statute above quoted (Gen. Stat. 2013 § 7) seems broad enough to permit a married woman to bind herself jointly with her husband in covenants
In this case it satisfactorily appears that the wife of Joseph Bray, who was also his joi3it debtor-, continued to reside in this state and to be amenable to the writ of summons until the month of August, 1908, when she went to Nevada to join her husband. It thus appears that there is an irregularity in the attachment proceeding, but whether this court would have jurisdiction to entertain the complaint on that ground alone it is not at this time necessary to decide.
Second. The second objection relates to the manner in which the attachment was issued and the proceedings conducted. It
In Herbert v. Herbert, 47 N. J. Eq. (2 Dick.) 11, the facts were that Henry L. Herbert, a resident of New York, purchased land in Munmouth county upon which he built a summer home. In May, 1889, he sold the property to Devoe, who gave back to Herbert a purchase-money mortgage for $5,000. Several months before the conveyance to Devoe, John W. Herbert issued an at
The case came on for final hearing before Vice-Chancellor Van Fleet, in Herbert v. Herbert, 49 N. J. Eq. (4 Dick.) 70. His judgment was affirmed by the court of errors and appeals, Ibid. 565. The vice-chancellor says: “He was thus, in consequence of his ignorance that a suit had been brought against him, deprived of all opportunity to go before the court, out of which the attachment issued, and show that the claim on which the attachment was founded was invalid. The gravamen of the
The two principles decided are these—first, that a defendant in a judgment at law who has a defence which he might have made successfully at law if he had had opportunity to set it up,' but who was prevented from doing so by accident or by the fraud of his adversary unmixed with negligence or fraud on his part, may still have the benefit of his defence by suit in equity, and second, that where a plaintiff in attachment recovers a judgment against the defendant on a false claim, or by concealing from the auditor any fact which tends to show that the claim on which his attachment is founded is not a valid one, a court of equity will, in case no relief can be had at law, interpose to protect the defendant against the judgment, provided he shows that the judgment was entered without his having such knowledge of the suit as afforded him an opportunity to make his defence.
Tn this case not only did one of the joint covenantors reside in this state at the time of the attachment, but the president of the company, and, therefore, the company, was in a position to know that fact, and also to ascertain the residence of the defendant in attachment, who was proceeded against. I do not know of any rule of law which requires a plaintiff in attachment to give any notice of the pendency of the suit except such notice as is required by the act to be published, but in view of the circumstances of this case, considering the severance of the obligation, the surreptitious manner of conducting the attachment proceeding, the fact that a lot of land worth from $750 to $900 ■was purchased by the plaintiff in attachment for $25, subject to something over a hundred dollars in liens, I do not think it would be equitable to permit .the plaintiff in attachment to avail itself of the proceedings.
I conclude, therefore, that the proceedings by which the General Engineering Company was enabled to take title to the defendant’s lands must be disregarded and the deed and all the proceedings upon which it was founded set aside. This measure of relief, however, will be awarded upon condition that the complainants do equity. The decree will provide that upon payment to the General Engineering Company of the amount paid by it to satisfy the municipal liens above mentioned, with in-, terest, within twenty days after the date of this decree, the said proceedings shall thereupon become null and void, and upon such payment, or the tender thereof within that period, the Gen-. eral Engineering Company shall reconvey the said premises to the defendant Joseph Bray and discontinue and cancel the said attachment proceedings.
The decree will be without costs in favor of either party against the other.