1 Paige Ch. 637 | New York Court of Chancery | 1829
The case of McDermott and others v. Strong, does not sanction the idea that a party obtains any specific lien upon
Neither was Buckner a necessary party. Where the property has been fraudulently assigned by the debtor, so that he has no legal or equitable rights as against the assignee, it will be necessary to make the assignee a party, to enable the court to reach the property in his hands. A decree against the fraudulent assignor would not in that case give any right to the property in the hands of the assignee. But where the debtor still retains the legal or equitable interest in the property, such interest may be conveyed to the complainant, or transferred to a receiver under'the decree or order of this court; who can call upon the debtor or trustee of the defendant in the same manner as the defendant himself might have done previous to the filing of the bill. As *there is no allegation of fraud as to Buckner, if he was made a defendant he would be entitled to the advances which he has made, together with his costs. If all the right of the defendants is sold under a decree in this suit, the purchaser will be entitled to an assignment of the land from Buckner, on paying the amount due. And if he should unreasonably refuse to permit the purchaser to redeem, he might subject himself to the costs of a suit instituted for that purpose. The debts, choses in action and other equitable rights of the defendants may be assigned or sold, under the decree of this court, so as to vest an equitable interest in the purchaser, which will be protected both here and at law. The Court of Exchequer in England has gone so far as to compel the purchaser of a debt due to a bankrupt’s estate to perform his contract specifically. (Wright v. Bell, Daniels’ R. 95.) The principle being established that every species of property belonging to a debtor may be reached and applied to the satisfaction of his debts, the powers of this court are perfectly adequate to carry that principle into full effect.
The principal property in this case is an equitable right
There must for the present be a decree declaring the rights of the complainants, and providing for the sale of that property, reserving further directions.
The following decree was entered:
*“ This cause having been brought on to be heard on bill and answer, and on hearing Mr. R. Sedgwick of counsel for the complainants and Mr. GL Griffin of counsel for the defendants, and the Chancellor having duly considered the same, it is this day adjudged and declared, and this court by virtue of the power therein vested- doth adjudge and declare, that the complainants are entitled to the proceeds of all the choses in action, stocks, property, estate and effects of the defendants, either in law or equity, in possession, reversion or remainder, or held in trust for them or either of them, and which belonged to them or either of them, or in which they had any interest in law or equity at the time of the commencement of this suit; or to so much of the said proceeds as may be necessary to satisfy the amount due on their judgment against the defendants, in the pleadings in this cause -mentioned, with the lawful interest thereon, and their costs in this suit to be taxed: It is therefore ordered and decreed that the defendants be enjoined from collecting, receiving, disposing of or intermeddling with any of the said choses in action, stocks, property, estate or effects, or to the proceeds thereof, except so far as is necessary to preserve the same from waste or loss, until the amount of the said judgment with the interest and costs aforesaid is fully satisfied, or until the further order of this court. And it is further ordered and decreed, that all the right and interest of the said defendants, either in law or equity, to the lots or parcels of land, with the buildings therein mentioned or referred to in the receipt of William Groelet Buckner, mentioned and set forth in the defendants’*643 answer in the cause, together with all their right and claim against the said Buckner, for or on account of the said lots, Or of the said receipt, be sold at public vendue by or under the direction of one of the masters of this court, at the Merchants’ Exchange in the city of New York, the said master giving three weeks’ public notice of the time and place of such sale in one of the public newspapers in the city of New York, at least once in each week; and that previous to the said sale, the said master ascertain as near as may be the amount advanced by the said Buckner to the defendants on account of the said receipt; and that he have ^liberty to examine the defendants, or any witnesses on oath for that purpose, if he shall deem it necessary; that the sale be made at the risk of the purchaser, for cash, and that the complainants be at liberty to become purchasers on such sale; that the master execute a conveyance or assignment to the purchaser in such form as the master may think proper, and that the defendants, if required by the purchaser, join in the said conveyance or assignment as the master may direct; and that they be required to stipulate therein that the purchaser be at liberty to use their names, if he shall deem it necessary, in any suits or proceedings in relation to the subject matter of the said sale, he giving to them such indemnity against the costs of any such suit or proceedings as may be directed by this court previous to the commencement of any such suit or proceeding. And that the master pay to the complainants or their solicitor out of the proceeds of the said sale their costs of this suit to be taxed, and also the amount of their said judgment with lawful interest thereon, or so much as the purchase-money will pay of the same, and that the master take a receipt for the amount so paid and file the same with his report; and that he bring the surplus moneys arising from the said sale, if any there be, into court without delay, to abide the further order of the court. And it is further ordered, that if the moneys arising from the said sale are not sufficient to pay the amount due on the said judgment,*644 with interest and costs as aforesaid, the said master ascertain the amount of such deficiency, and specify the same in his report; and that on the coming in and confirmation of the said report, the complainants may apply to this court for such further directions as may be necessary or proper in relation to such deficiency. And in the meantime either party is to be at liberty to apply to this court from time to time as they may be advised in relation to the said property or effects of the defendants, or the preservation or disposition thereof, or the collection of the debts.”
2 R. S. (4th ed.) 353, sec. 42, and revisor’s note. To entitle the judgment creditor to the aid of Chancery to obtain satisfaction of his judgment against the defendant, out of properly not liable to execution, he must show not only an execution issued but returned nulla bona. McElwan v. Willis, 9 Wen. 548; Clarkson v. De Pyster, 3 Paige, 320. Therefore the plaintiff should state in his bill the issuing of the execution, the time when returnable, and the actual return of the sheriff thereon. Cassidy v. Meacham, d. 211. His right to relief is recognized only after he has exhausted all his legal remedies, without obtaining satisfaction. Child v. Brace, 4 id. 310. The judgment must be obtained in one of the courts of this state, or Chancery will not aid the judgment creditor. Tarbell v. Griggs, 3 Paige, 207. Nor does it lie at the suit of a county to,enforce the payment of county taxes, where the warrant for collection has been returned unsatisfied to the county treasurer, for want of property whereon to levy. Durant v. Supervisors of Albany Co., 26 Wen. 66. All persons against whom the judgment was rendered should be made parties to the bill. Child v. Brace, 4 Wen. 309.