36 Barb. 592 | N.Y. Sup. Ct. | 1861
The judgments rendered in the actions of Denison v. Merrills, and Garlic v. Merrills, declaring the deed from Miles Merrill to James E. Merrill fraudulent and void as against the plaintiffs in those suits, simply removed that deed from the way of the plaintiffs, and entitled them to proceed to sell the premises in payment of their debts. The plaintiffs might have had a' receiver appointed, to take a conveyance of said land from the judgment debtor, by whom, under the directions of the court, such premises might have been sold and a title obtained through the receiver’s deed; or they might have issued new executions and sold the land thereupon. The provision in the decree directing the sheriff to sell said land in the manner prescribed by law, and that he execute to the purchaser a certificate and deed in the manner required in the code in respect to sales upon executions, it seems to me, was entirely unauthorized. It is not a mode of conveying or transferring title to real estate prescribed or authorized by any statute. In Jackson v. Edwards, (7 Paige, 404,) the chancellor said that, “independent of the statutory provisions in aid of the power of the court, the ordinary mode in which courts of equity transferred the legal title upon a sale under a decree, was by operating upon the parties themselves, and compelling them to join in a conveyance to a purchaser.”
In Chautauque County Bank v. White, (6 Barb. 589,) it was held that the court of chancery, upon a creditor’s bill, had no power to order the sale of real estate. The court of appeals reversed this decision, holding that the purchaser would get a good title under the receiver’s deed; the judgment debtor having conveyed the title to the receiver. (S. C., 2 Seld. 236.)
In this case Judge Gardiner says that, in all cases of fraudulent trusts, the court may in its discretion direct a sale by a master, and compel the debtor and trustee to unite in a conveyance to the purchaser, or the fraudulent conveyance may be annulled and the creditor permitted to proceed to
Johnson, Welles aid Smith, Justices.]