5 Johns. Ch. 329 | New York Court of Chancery | 1821
The judgment without a specification was good, as against the debtor, and a lien upon his lands. When the statute (21st of April, 1818, ch. ,259. sec. 8.) says, “ such judgment shall be deemed fraudulent as respects any other bona fide judgment creditors, and every bona fide purchaser for a valuable consideration,” it * J r % refers, as I apprehend, to purchasers taking beneficially, and for a valuable consideration, on their own account. It : • did not mean that the debtor might make, in despite of the judgment, voluntary assignments for his own benefit, or ,to prevent his property from being sold on execution, or to pay particular or favourite creditors. The only creditors mentioned in the act are judgment creditors. Purchasers are there mentioned, in contradistinction to creditors, and the word is used in the common and popular sense, The plaintiffs in this case were not purchasers, in the. sense of that act, for a valuable consideration. They paid no valuable consideration. It was a voluntary conveyance in trust for creditors, generally; and the statute defines the particular class of creditors who were to have preference over such a defective judgment; and. those for whose benefit the conveyance was made and intended in
The particular provision in the deed, that the creditors were not to be paid in proportion, &c., unless they should execute and deliver a complete discharge of their demands, was in this case rigorous, coercive, and unjust, for the deed only assigned the real property therein specified. It did not extend to all the property, real and personal, of the grantors, and non constat, they had no other property. They might have had other and sufficient property, both real and personal. The land in question might not pay one fourth of the respective debts, and yet the creditors were not entitled to receive a cent, unless they relinquished the residue of their debts. The condition was oppressive, and without any colour of justice in this ease, inasmuch as the assignment was not general of all the property, but only of a specified part. A partial assignment upon such a condition is pernicious in its tendency, if it be not (as l rather apprehend it to be) fraudulent in its design.
The deed likewise authorized the trustees to sell the property forthwith, in their discretion, and turn the land into money; and if the creditors would not accept of their rateable payments upon the condition imposed, the moneys were to be held in trust for the grantors. By this means the defendants might lose their lien upon the land, as against d>e debtor, and it might become converted into money, t©
I am, accordingly, of opinion, that the deed in question is not entitled to be preferred to the judgment lien of the defendants, and that the motion to dissolve the injunction ought to be granted.
Injunction dissolved.
