Welch v. James

22 How. Pr. 474 | N.Y. Sup. Ct. | 1861

Johnson, Justice.

The affidavits and evidence show, beyond any doubt or cavil, that the judgment in question might have been collected, and still may be, from unincumbered real estate belonging to the judgment debtors, upon which it was a lien, without resorting to the lot in question, which was subject to other liens, and which Griswold had purchased in part satisfaction of his judgment and claim upon it.

Bradner, the assignee of the judgment upon which the sale was made, was in the situation of a creditor having a claim upon two funds, on one of which another person had also a claim, and which other person will be prejudiced by allowing such creditor to satisfy his debt out of the funds subject to both claims. • In such cases equity will always compel the creditor to take satisfaction out of the fund to which he alone has a claim in the first instance.

He must exhaust that fund before resorting to the other. The same principle applies where the debtor has alienated a portion of his estate. The court will compel the creditor to resort to the unsold portion first, and exhaust that before going to that which the debtor has alienated. This the court will always do, in furtherance of justice in the exercise of its equitable powers over its own process. (Clowes agt. Dickinson, 9 Cow., 403 ; Davis agt. Tiffany, 1 Hill, 642; Smith agt. Page, 15 John., 395; Lansing agt. Orcutt, 16 id., 4.)

Many more cases might be cited to the same effect; but there is no doubt about the principle. It is clear upon the papers before me, that Dorr, the present "owner, who took from Welch’s grantee, will be seriously injured by allowing this sale to stand, while the assignee of the judgment, on the contrary, can have no difficulty in satisfying his judgment out of other property. It is quite apparent, also, that Griswold, who purchased from Welch’s agent, did so in the confident expectation that the lien of the judgment would be discharged from that property, and had no wish or intention to interfere with the security or the collection of the judgment.

The purchaser at the sheriff’s sale is the assignee of the judgment, so that complete justice may be done without affecting any rights or interests, acquired bona fide. It is claimed, however, on behalf of the assignee of the judgment, that Tittsworth has paid his full share of the judgment, and the land in question ought in equity to be held to pay Welch’s portion. But this is a question with which the creditor has nothing to do. He cannot thus place himself in the way of Welch’s creditors or grantees, nor could Tittsworth compel him to do so. The law will so appropriate the property, of both debtors, that all the debts of each may be paid. It is quite evident that both the assignee and the sheriff have been acting throughout with a view of favoring Tittsworth, at the expense of Dorr and Griswold. They persisted in selling the property in question, after all the facts had been brought home to their knowledge, and in the face of Dorr’s remonstrance and forbidding the sale, and the assignee even refused to take his money and assign the judgment. He says now that no costs were tendered, but only the amount due on the judgment ; but he made no such objection when the tender was made, and did not place his refusal on that ground.

The sale must therefore be set aside, and all subsequent proceedings, and a perpetual stay ordered as respects the land in question, until the other property subject to the judgment has been sold, and the remedy exhausted upon that. The assignee of the judgment must also pay $10 costs of this motion.