3 How. Pr. 127 | N.Y. Sup. Ct. | 1847
The bill having been taken as confessed by the Defendants, the Plaintiff is entitled to such a decree as the state of facts presented in his bill will justify. His counsel is mistaken in supposing that because the Defendants have admitted all the allegations and charges in the bill, they have thereby consented that a decree shall be entered against them as prayed for in the bill. It is the duty of the court to see that the appropriate decree in the case is entered, without reference to what is asked for in the prayer of the bill. The allegations of fraud in respect to the conveyance of the 10th of August, 1842, being admitted, the Plaintiff is entitled to a decree declaring that conveyance fraudulent and void as against him. He is also entitled to have a reference to appoint a receiver of the property and effects which Peter B. Winne, Ms judgment debtor, had at the time of the commencement of this smt; all the Defendants are to be charged with the costs of tMs suit. But he is not entitled to a decree directing the sale of the real estate. The conveyance by his judgment debtor to the other Defendants, having been declared to be void, as against him, he must be left to pursue his remedy upon Ms judgments.
It is not the practice of courts of equity to direct a sale of real estate under a decree upon a creditor’s bill, where the legal remedy is adequate. A decree must be entered in conformity with these principles.
