8 N.J. Eq. 120 | New York Court of Chancery | 1849
The demurrer cannot be sustained. • The only question in the case arises on the answer of Seth XL Woodruff.
The will gives a certain house and lot in Newark to trustees for the use of said Seth for his life, and then for the use of Ms wife, if she survives burn ; and directs the trustees to convey the same, after the death of said Seth and his wife, to their children. The will also gave to Seth H. Woodruff a money legacy of $2000, absolutely.
With'a part of this $2000 Seth H. Woodruff built another house on the said lot of land, and receives the rent therefor. The question is: can he enjoy these rents, the use and returns for his own money invested in building another house on said lot, and hold his creditors at arm’s length; or is there not a mode by which those rents can be subjected to the payment of his debts.
Our system of jurisprudence would be very imperfect if it afforded no relief to a creditor'in such a case.
The question is not, whether by the judgment and execution the creditor obtained any lion upon the building, or whether by the sheriff’s deed he acquired any interest in the building. All that part of the case might bo struck out of the bill. The complainants obtained a judgment at law, and issued execution, and have exhausted their remedy at law. The very reason why they come here is that the law affords them no remedy by judgment and execution. They come here to reach a fund of the defendant Seth H. Woodruff, which he has shut up in such a way that it cannot be reached at law.
X do not doubt that this Court could afford relief in a case like
A receiver will he appointed to receive the rents of the house erected hy Seíh H. Woodruff, to he applied to the payment of the judgment of the complainants, until the same he satisfied, and, in the mean time, the trustees under the will of Ohadiah Woodruff will he enjoined from receiving the rents.
A distinction may he made, if there he any utility in it, between what would he the value of the use of the ground occupiedhy the new house and the yard or enclosure used with it, and th'e use of said enclosure with the house erected on it, and the former may he deducted from the latter, and the difference he directed to he paid to the receiver, This will only require the services of a receiver for a little longer time.
In this view a referee will he necessary to ascertain such difference.
Order accordingly.
