30 N.Y.S. 709 | N.Y. Sup. Ct. | 1894
It is alleged in the complaint that the plaintiff recovered a judgment against one John F. Good and another for $2,642.50 on the 10th day of May, 1886. -That the judgment roll in said action was duly filed in the clerk’s office of the county of Cattaraugus on said day. That it still remains unpaid and unsatisfied in full. That the county clerk of the county, in docketing said judgment, omitted to index the same against said defendant John F. Good; and that, by reason of such omission, said judgment did not appear on said docket on what is called the "Good Combination,” and therefore the judgment did not become a lien upon the real property of the defendant Good. In the year 1891 the said Good died, intestate, leaving no personal property of any •description. That, at the time of the recovery of said judgment, he was the owner of valuable real estate in the county of Cattaraugus, of the value of several thousand dollars. After the recovery of said judgment, and on the 1st day of December, 1890, Good executed and delivered to the defendant, Charles W. Phillips, •a. certain instrument, in writing, purporting to convey to said Phillips, in consideration of the sum of $300, said real estate. :£>aid deed wras duly recorded in the proper clerk’s office. That said deed was delivered to said Phillips for the purpose of securing the repayment to him of said sum of $300, with interest, on an agreement on the part of said Phillips with Good that, on the repayment of said sum, he would reconvey the lands to Good. That Phillips did not purchase and become the grantee of said lands for a valuable consideration and without notice of plaintiff’s judgment, but, «on the contrary, up to the time of the death of said Good, he held said instrument of conveyance, and only assumed to hold the same as security for the payment of said money, and as, in effect, a mortgage thereon. That, after the death of said Good, Phillips, for the first time, conceived the fraudulent purpose and design of assuming to hold under said conveyance the absolute title to said lands, as the bona fide purchaser thereof, free and discharged from said judgment. That said Phillips knew of the existence of plaintiff’s judgment, and that his claim, as aforesaid, since the death of Good, is made with the fraudulent intent on his part to hinder, delay, and defraud the creditors of Good, and particularly the plaintiff. That said instrument of conveyance, in connection with the record of said judgment, is a cloud upon the title of said lands, and an obstruction to the collection of the judgment. That, at the time of said transaction, said Good was indebted to divers persons in
The only question presented by this appeal which merits examination is whether the issuing and return of an execution unsatisfied in whole or in part against the judgment debtor, Good, was an indis- i pensable prerequisite to the right to maintain the action. By the omission of the clerk to properly index the judgment as against Good, it did not become a lien upon the defendant’s real estate. Code Civ. Proc. § 1246. The judgment debtor having died after the entry of judgment, a general execution against his property could not be issued. Id. § 1379. It is provided by section 1380 of the Code I that after the expiration of one year from the death of a party I against whom a final judgment for a sum of money, or directing the payment of a sum of money, is rendered, the judgment may be enforced by execution against any property upon which it is a lien, . with like effect as if the judgment debtor was living; but such an execution shall not be issued unless an order granting leave to issue it is procured from the court from which the execution is to be issued, and a decree to the same effect is procured from a surrogate’s court which has duly granted letters testamentary, etc. This judgment is not within the provisions of this section, for, as stated, it never became a lien upon the judgment debtor’s property. It is a general rule that, in actions brought by creditors to set aside conveyances of a judgment debtor for fraud, an execution must be issued, and returned unsatisfied in whole or in part, before an action can be maintained. It may be observed that in this action it is claimed that the conveyance was made with intent to defraud the creditors of the judgment debtor. The good faith of Good in giving the deed, and the motives of the appellant in receiving it,
It was held in Re Holmes (Sup.) 16 N. Y. Supp. 51, and 131 N. Y. 80, 29 N. E. 1003, where it was alleged that the judgment debtor had transferred his property in fraud of his creditors before the recovery of the judgment, that the court might assume, for the purpose of deciding a motion for leave to issue execution, that the claim of fraudulent transfer was well founded, and grant the motion, notwithstanding the judgment was not in fact a lien on property. But no such assumption should be indulged in here; for, concededly, the judgment was not, and could not be, a lien upon the debtor’s property. It was held in Bank v. Wetmore, 124 N. Y. 241, 26 N. E. 548, that the rule requiring the issuing and return of an execution as a condition precedent for the maintaining of a creditor’s action was not of universal application. The opinion of the court, prepared by Bradley, J., discusses the reasons and authorities for the general rule requiring the issuing and returning of the execution in such cases, and concludes that it is not so universal in its application as to deny to a party the interposition of the equity powers of the court when the situation is such as to ren