9 Paige Ch. 418 | New York Court of Chancery | 1842
As the respondent was a bona fide purchaser of the Uurbana property, without notice of any fraud on the part of Fulton in obtaining title to the same, there was no defect of title to that property which could authorize Cuyler to rescind the contract on that ground. Neither were the judgments against Tyler any lien upon the Urbana property in the hands of Cuyler.
It may not be necessary here to inquire whether the interest of a purchaser under a contract could be sold under a judgment, previous to the revised statutes, where such purchaser was in possession at the time of the recovery of the judgment. Clearly, however, it could not, unless the purchase money was all paid, so as to make the holder of the legal title a mere naked trustee for the judgment debtor, who was the real owner of the whole interest in the land. - (Bogert v. Perry, 17 John. Rep. 351.) The case oí Jackson v. Parker, (9 Cowerfs Rep. 73,) merely decided that the possession of land was bound by the lien of a judgment; and that a sale of such possession to one who had either actual or constructive notice of the lien did not prevent the judgment creditor from reaching and selling that possession. Or rather, the opinion of the chief justice went that length j but the judgment of the court was placed upon the ground that the transfer of the possession, by the judgment debtor to his son, was voluntary and fraudulent as against the judgment creditor. Even in cases in which the sheriff was au
There were some outstanding judgments against Fulton, at the time of his conveyance, which appear to have been legal liens upon the Urbana property in the hands of Cuyler. The existence of those liens, however, does not appear to have been fraudulently concealed from Cuyler, any more than the Herrick mortgage upon the Penn Yan
Although it appears by the assignment of the contract to Ellsworth, which was duly proved in this case, that he bought the property from Fulton for the price of $6000, a part of which was paid, according to the testimony of some of the witnesses, by assuming debts which had been contracted in making the improvements on the property, still he took that assignment subject to all the legal and equita
I think, however, Ellsworth had an equitable right to insist that if the contract was not rescinded the purchase money should be applied to the payment of the mortgage money to Herrick, unless Fulton had precluded himself from asking to have that incumbrance discharged by some agreement subsequent to the making of the contract. The defendant in his answer states a conversation on that subject, and says that a mortgage was given on the Urbana property as an indemnity. But I have not been able to find any evidence to support this allegation in the answer ; and if such evidence exists I have overlooked it.
The real difficulty in the case, and the only one I presume out of which the litigation between the parties to this bill arose, was the suit commenced by Colt to obtain satisfaction of his judgments out of the Urbana property, or out of that at Penn Yan for which the Urbana property was received in payment. And the rights of the complainant in this case have unquestionably been most seriously affected by the result of that suit. For although that suit did not affect the interest of Cuyler in the Urbana property, which he was entitled to hold as a bona fide purchaser notwithstanding the alleged fraud, he could not during the pendency of that suit convey the Penn Yan property either
What then were the rights of these parties at the time the vice chancellor made his decree in this cause ? For the case should be disposed of in the same manner as if the decree in the suit of Colt had been affirmed previous to the making of the decree in this suit; the decision upon the appeal being now the law of the case, so far as this court is concerned. I see no reason for dismissing the bill without prejudice, and turning the complainant around to a new suit if he had any equitable right's whatever. And if he had not, the bill should have been dismissed absolutely. If the result of that suit had been otherwise upon the question of fraud in the assignment of Tyler’s interest in the Urbana property, I think Ellsworth the complainant would have been entitled to a decree for a specific performance ot the contract, upon payment of the $1000 and interest, and clearing off the incumbrances upon the Urbana property so as to make Cuyler’s title to that property clear and perfect, and upon payment of his costs in this suit and in the ejectment suit; his costs in the suit of Colt having been already provided for in the decree in that cause. But the result of the litigation in the suit of Colt and the decree which has been made in that case, leaves the question as to the terms upon which a specific performance shall be decreed to be disposed of between the purchaser under that decree and Cuyler. In other words, all the interest which Fulton or his assignee had in that contract, at the