77 N.J. Eq. 437 | New York Court of Chancery | 1910
The separate cross-bills are practically, and for the purposes of this decision actually, identical, and will be dealt with as if one.
They aim to reach real estate which- — or the proceeds of the sale of which — John Durie was entitled to under his mother’s will, and which real estate he caused the executors of his mother’s will, who had the title and the power to convey it, to convey to him and his wife.
The cross-complainants contend that as to them the wife holds
It may well be, as argued by complainants, that they are not required to allege and prove that they have issued executions and had them returned unsatisfied. I do not decide this because I do not have to do -so. But at least they must allege and prove that they cannot collect their judgments at law before thejr can appeal to this court to obtain equitable assets or liens upon equities of the debtor. The distinction between those cases in which the object is to set aside a conveyance made by a debtor of property to which he had title and those in which the debtor has never had title, but in which he caused property to which he was entitled or had paid for to be conveyed to another in fraud of his creditors, is pointed out and illustrated in the following cases: Haggerty v. Nixon (Chancellor Runyon, 1875), 26 N. J. Eq. (11 C. E. Gr.) 42; Belford v. Crane (Chancellor Green, 1863), 16 N. J. Eq. (1 C. E. Gr.) 265; Holdrege v. Gwynne (Chancellor Zabriskie, 1866), 18 N. J. Eq. (3 C. E. Gr.) 31; Kinmouth v. White (Vice-Chancellor Pitney, 1901), 61 N. J. Eq. (16 Dick.) 358; and in these cases it is held that where the creditor is seeking the equitable estate or interests of the debtor
The demurrers are therefore sustained, with costs, and the cross-complainants will be given opportunity to reframe their pleadings.