Cuyler v. Moreland

6 Paige Ch. 273 | New York Court of Chancery | 1837

The Chancellor.

This appeal appears to have been improperly brought in the names of all these appellants jointly, as some of them appear to have no interest in reversing that part of the decision of the vice chancellor to which the appeal relates. Ho one can appeal from an order or decree who is not injured thereby. And even a party who is aggrieved by one branch of a decree does not thereby acquire a right to call in question another portion of the decree which has no bearing or effect upon his rights and interests. (Steele v. White, 2 Paige's Rep. 478. Idley v. Bowen, 11 Wend. Rep. 227.)

The principal question presented upon the merits of the case is, whether a judgment creditor, who has exhausted his remedy at law by the issuing of his execution to the proper county and having the same returned unsatisfied, loses his right to file a bill in this court, to reach the equitable interests and choses in action of the defendant, by subsequently taking out a new execution and attempting to collect _ his judgment out of property which he has reason, to suppose the defendant has since acquired; and must wait until the new execution is also returned unsatisfied. If the last execution is actually levied upon property of the defendant sufficient to satisfy the judgment, to which property there is no adverse claim, and which ought to be applied in payment of the debt instead of proceeding against the equitable interests and choses in action of the. defendant, in this court, it will unquestionably be a bar to a suit here. But a levy under the second execution, upon property which is not sufficient for that purpose, is only a bar to a suit or scire facias upon the judgment pro tanto; and such a levy cannot be pleaded in bar of the suit- or scire facias generally. (Peploe v. Gallins, 4 J. B. Moore’s Rep. 163.)' And it ought not to have the effect of delaying the complainant from proceeding to collect the residue of his judgment, from the other property of the defendant which cannot be reached by execution, after he has once exhausted his remedy by execution against the estate of the debtor. If the defendant has the means of paying the debt it is his duty as an honest man to apply his property for that purpose at once, instead of keeping his creditor out of his lawful due, whose family perhaps is suffering for the want of it. And if the defendant will not do what justice and. equity reqúires of him in this respect, he has no right to complain that his creditor avails himself of any legal means to obtain satisfaction of his whole debt with the least possible delay. Where the right to file a creditor’s bill in this court once exists, therefore, by the return of an execution unsatisfied, if the defendant has either real or personal property which is a proper subject of sale on an execution, but which is fraudulently transferred or incumbered for the purpose of protecting it from the execution of the creditor, and has other property which can only be reached by the aid of this court, the judgment creditor may sue out a second execution, so as to obtain .a specific lien upon the property which is subject to -sale thereon, and may then file a bill in this court for the double purpose of removing the obstruction which has been fraudulently interposed against the execution at law, and also to reach other property of the defendant which cannot be sold on such second execution. The objection to the bill on the ground of multifariousness could not, therefore, prevail, even if the defendants had not waived it by neglecting to make any such objection in then answer. And as it is not alleged that the defendants’ property levied on by the last execution, and against which no counter claims existed, was sufficient to pay the complainant’s judgment, the vice chancellor was right in retaining the injunction against the equitable interests and choses in action of J, Moreland. It does not appear whether the farm sold to Fosmire, which is bound by the lien of the judgment, is actually worth more than sufficient to satisfy the liens thereon for the purchase money, &c. which are .entitled to a preference in payment. But even if it was, the equitable interests and choses in action of J, Moreland ought to be applied to the payment of the judgment, instead of resorting to a sale of this farm in the hands of a bona fide purchaser.

That part of the decretal order of the vice chancellor which is appealed from must therefore be affirmed, with costs.