63 Barb. 169 | N.Y. Sup. Ct. | 1872
It is alleged in the complaint, that in November, 1856, the plaintiff recovered a judgment in this court, against the defendant Sheldon, for $740, and the judgment roll was filed and judgment docketed in Ontario county clerk’s office. There is no allegation that execution was ever issued on this judgment.
. The complaint also alleges, that in February, 1860, another judgment, in this court, was rendered against the defendant Sheldon,.in favor of the plaintiff, for $234, and the judgment roll filed and judgment docketed in the
The complaint then alleges, “ that the defendant William P. Sheldon is a man of no responsibility, and is possessed of no other property out of which this plaintiff’s judgments, and the judgments of his other creditors, can be satisfied.”
The relief asked is, that the said conveyance be declared .void and set aside; that it be decreed, that the defendant .Sheldon is the owner, and the same is subject to the lien of the said judgments; and for other and further, proper and appropriate relief.
The learned judge, at special term, held that' the complaint did not allege a cause of action, and sustained the demurrer; holding as it was not alleged, specifically, that the defendant in the judgments was a resident of Ontario county when the execution was issued on the.last described judgment, the action could not be sustained on that judgment, and as it did not appear that an execution had been issued on the first described judgment, neither could the relief sought be obtained on that judgment.
The first question to be considered and determined is,was it necessary for the plaintiff to issue executions on his judgments, before he could apply to this court for the relief demanded in the complaint.
But they have no jurisdiction to enforce the payment of debts. Creditors must resort to the common law courts, for process and judgment. By these means the property of the defaulting debtor is reached and appropriated to the payment of his debts. All that equity is capable of doing, is to aid in the enforcement of the judgment there obtained.
.'These applications are made under many and various circumstances; and it is believed that the conditions imposed by the equity courts, before assuming jurisdiction and rendering assistance, are well settled upon principle and the authority of adjudicated cases. It will be seen, upon an investigation, that the question comes to be, what kind of evidence is required, to establish the necessity for interference by courts of equity. In all cases it must appear, that there is a judgment against the debtor. The debtor’s assets applicable to payment of his debts, are divided into two classes; one, when.the property is made subject to a lien by the judgment and is liable to seizure and sale by process of execution, and consists of real estate and personal property; the other consists of choses in action, not liable to levy and sale on execution.
If the judgment creditor seeks to obtain satisfaction out of the class of property beyond the reach of execution, it must appear that he has exhausted his remedy at law and the only evidence of that fact,' that will be received by the rules of law, is the issuing and return nulla bona, upon an execution against the property of the judgment debtor, liable to sale on execution. The statute providing for the filing and prosecution of a judgment creditor’s bill, so called, requires this ; and whether it was the rule before this statute, it is wholly' unnecessary to inquire. (2 R. S. 173, §§ 38, 39.)
Upon this point there is no disagreement between the
The only authorities, that I have been able to find, holding that it is necessary to have execution, before a court of equity will interfere, in a case like the one stated in the plaintiff’s complaint, are North American Ins. Co. v. Graham, (5 Sandf. 197;) and Cullock v. Colby, (5 Bosw. 477.) The position' there maintained, is in opposition to the previous practice of the equity courts of the State, and in-hostility to the views of the great chancellors, Kent and Walworth. (Brinkerhoff v. Brown, 4 John. Ch. 671.
• The case of Shaw v. Dwight, (supra,) affirms all the propositions that are fundamental in. the position I have assumed, in upholding the complaint as sufficient.- In that case, a judgment creditor filed a bill to set aside prior judgments, on the ground that they were paid. An execution had been issued and returned nulla bona, but no execution had ever been issued to the county where the lands were situated. Ho receiver was asked for in the complaint, and by the decree the only relief granted was ordering the prior judgments to be satisfied. The defendant claimed it was essential that execution be issued to the county where the lands were located, and that the same be in the sheriff’s hands, ready to sell the lands, after the prior judgments were declared paid ; and one of the judges, in a dissenting opinion, held to the same view.
Judge Denio, who wrote the prevailing opinion, says, that it is no objection that the plaintiff" had only a general lien by judgment. He also cites Brinkerhoff v. Brown, with approval, and quotes these remarks of .Chancellor Kent: “If the plaintiff seeks aid as to real estate, he must show a judgment, creating a lien upon such estate; if he seeks aid in respect to personal estate, he must show an execution, giving him a legal preference or lien upon the chattels;” and then adds, the position is supported by a careful examination of the cases, and refers to the cases containing the like opinion of Chancellor Walworth.
In the subsequent part of the opinion, the learned judge
The defendant, by his demurrer, admits that a just debt has long remained unpaid; that after the same was created, and before judgment thereon, be sold and conveyed the premises sought to be reached to one of his co-defendants, with the fraudulent intent and design of cheating and delaying the plaintiff in the collection of his debt, that he is without pecuniary responsibility, and owns no other property out of which the judgments, or any part of the same, can be collected. The only objection he interposes against the relief prayed for is, that no execution has been placed in the hands of the sheriff. I am of the opinion that the objection is not sustained by reason or adjudication; and by the settled practice, courts of equity can take jurisdiction, in a case like this, and grant the appropriate relief. As the compaint does not. allege that the execution, issued on one of the judgments, was to the sheriff of the county where the judgment debtor then resided, the complaint is not aided by the averment that the same was returned nulla bona. (Read v. Wheaton, 7
The order appealed from is reversed, and the demurrer overruled ; with leave to the defendant Sheldon to answer on payment of costs.
Johnson, Talcott and Barker, Justices.]