1 Paige Ch. 319 | New York Court of Chancery | 1829
The Chancellor :—Without going into a detail of all the testimony in this case, it is sufficient to say, it satisfies me beyond all doubt that the judgment against Phelps wás fraudulent and void as against the complainant. If the consideration was not wholly fictitious, there is much reason to believe the greater part of the pretended debt was made tip for the occasion. That it was the intention of Wise to obtain the judgment, and use it for the purpose of charging the land which the complainant was about to purchase, without letting him know of its existence until the purchase was completed and the consideration paid, is positively proved by the testimony of one witness. This, with the testimony of other witnesses to collateral facts, and the confessions of the defendant, independent of the very strong impression of fraud which the whole transaction bears on its face, is sufficient to discredit the answer of Wise.
Ford, as the assignee of the judgment, is in no better situation than Wise; for it is well settled that the assignee
If Ford had endeavored in good faith to collect the judgment, or the amount actually advanced by him to Wise, out of the other property of Phelps, I should not think it right to charge him, with costs. But as he adopted a different course, and united with Wise in setting up a fraudulent and unjust claim against the lands of the complainant, and has driven him to the expense of this litigation, he must be answerable for the costs of this suit, if it should turn out that Wise is unable to pay the same. The decree must be so framed as to charge the costs against Wise in the first instance; and if they cannot be collected by execution against him, Ford must pay the same, with liberty to prosecute the decree therefor against his co-defendant, in case he shall be obliged to pay the costs to the complainant.
