3 Barb. Ch. 184 | New York Court of Chancery | 1848
The decision of the vice chancellor in this case is unquestionably right. And if the complainant, or those through whom he derived his title to the premises in question, have any remedy, it must be in the character of creditors of G. Devoe, the intestate, and by means of an order of sale to be made by the surrogate. Only about one half of the debt of C. & J. T. Storms was extinguished by the conveyance to C. Storms; and if there was no other property belonging to the intestate, to satisfy the residue of the debt, the surrogate ^probably has the power to direct a sale of the lot in question to satisfy that indebtedness. There is no-allegation in this bill, however, that G. Devoe did not have other real estate sufficient to pay all his debts. Nor does it appear what became of the personal property, which belonged to the intestate at the time of his death. The whole of this bill is based upon the mere fact that the decedent had not sufficient personal property to pay all his debts, and that this portion of his real estate was conveyed by the heir at law in part payment of a debt due by the intestate, and at a price not below its actual value. This was not sufficient, even in equity, to entitle that conveyance to a preference over the previous legal lien of Alsop’s judgment upon the premises in the hands of the heir at law. To entitle the creditor of the decedent to a legal preference over the judgment creditors of the heir at law, he must himself proceed to a judgment, or decree, against the heir at law for the debt due from the latter in respect to the lands descended from the intestate. Or he must apply to the surrogate for a sale of the land, to satisfy the debts of the intestate, which the personal estate is insufficient to pay.
■ The allegation in the bill that the Storms were ignorant of the existence of the judgment of AIsop at the time of the conveyance of the premises to C. Storms in part payment of their
The bill does not distinctly show that there was any irregularity in the issuing of the defendant’s execution. But even if it was irregularly issued, the remedy of the complainant is not in this court, but by a summary application to thé court of law to set aside the execution for irregularity, so far as it affects his rights; if he has a remedy any where to correct an irregularity in a suit, against another person, to which he is not a parly. The vice chancellor refers to several authorities to show that he has no such right, so far as relates to a question of regularity merely. And the issuing of an execution after the lapse of two years, without reviving the judgment by a scire, facias, where all the parties to the judgment are in full life, is an irregularity merely, and does not render a sale under it void.
The decree appealed from is. not erroneous, and it must be-affirmed with costs.