77 N.J. Eq. 522 | New York Court of Chancery | 1910
Eobert E. Allen, late of the county of Monmouth, being seized of certain land and premises there situate, mortgaged the same to the complainants) his wife joining in the mortgage and releasing her dower. Afterwards Allen conveyed the mortgaged premises to a third party, his wife likewise joining therein and releasing her dower. After divestiture of title judgments were recovered against Allen by Lynch & Livingston, Humphrey & Martin and D. P. Forst & Co., in the order named, although Humphrey & Martin issued execution and secured a levy prior to Lynch & Livingston. The premises afterwards, by mesne conveyances, became vested in Mrs. Allen.
I). P. Forst & Co. filed a bill in this court in aid of their judgment to have the conveyances set aside as fraudulent and void as against them. This suit they prosecuted to a finality and obtained a decree avoiding the conveyances in favor of their judgment and execution.
Subsequent to the recovery of these judgments suit was instituted to foreclose the complainants’ mortgage and the judgment creditors were made parties defendant. Such proceedings were had therein that a sale of the mortgaged premises was made under fi. fa. and the sum of $590.01 surplus money, has been raised. Humphrey & Martin have petitioned for this surplus upon the ground that their eieeution was first levied upon the mortgaged premises. The master reports that they are entitled to the fund, and that Lynch & Livingston have the second lien, and D. P. Forst & Co. the third lien.
Of these several judgment creditors of Allen, D. P. Eorst & Co. alone have pursued the property and secured an adjudication that the conveyances were fraudulent and void as to them. There is no adjudication that they were fraudulent and void
Mrs. Allen joined her husband in his voluntary conveyance of the property in question and thereby released her right of dower. The premises afterwards came to. her by mesne conveyances as already stated and were her property when sold under the fi. fa. in the foreclosure suit. Therefore, she had no estate in dower in the premises sold and is not entitled to any interest in the surplus money.
The exceptions to the report will be sustained and an order made awarding the surplus money to D. P. Eorst & Co., in payment of their judgment and costs of suit, which will exhaust the fund and leave some balance unpaid.