White v. Williams

1 Paige Ch. 502 | New York Court of Chancery | 1829

The Chancellor :—The claim of the complainant for a specific lien on the premises upon the ground that his judgment was obtained- on a note given for a part of the purchase-money cannot be sustained. At the time he bought the note of Kingsbury the latter unquestionably had such a lien; but it is not pretended there was any agreement that such lien should be transferred to the complainant. If Kingsbury could be considered as still retaining any such claim after the transfer of the note, it must be on account of his liability as indorser thereof. But there is no evidence or even allegation that any steps were taken to charge him as indorser. In a recent case where the vendor had negotiated the note but was obliged to take it up himself when it fell due, Lord Eldon sustained the claim of the original vendor to a lien on the land. (Ex parte Loaring, 2 Rose’s Ca. 79.) But I am not aware of any case where the assignee of the note, or other security, has been permitted to sustain such a claim on an implied agreement to assign the lien.^[1.] In the case of Mackreth v. Symmons, (15 Ves. 329,) cited by the complainant’s counsel, there was an express agreement at the time of the sale, that the purchase-money should be applied to the payment of the vendor’s debt to the third person. If Kingsbury holds any such lien as trustee for the holder of the note, he should have been a party to this suit. But I am satisfied that the sale and prosecution of the note to judgment in the name of the indorsee must be considered as a waiver of the original implied lien for the purchase-money on the land.

It is not necessary for me to examine the question whether the specifications filed are sufficient on their face to sustain the judgments, agreeably to the decision of the Supreme *Court in Lawless v. Hackett, (16 John. R. 169,) and of this court in Brinckerhoff v. Marvin, (5 John. Ch. R. 320.) I am inclined to think that most of the items in both specifications may be sufficient; but they can only be sustained by giving to them a construction which, as it now appears, is wholly fictitious and false. For instance, the largest item in the first specification is “ Sealed obligation, dated 2d April, 1816, for the third part of the real estate of Wareham Williams, deceased, of which Rebecca Williams was endowed, $1,145 50.” Perhaps this might be sufficient to give notice to all persons interested, that this note was given for the purchase-money on a sale of one-third. of that real estate by the plaintiffs in the judgment to the defendants. But understood in that way, it would be wholly false and fictitious. By the answer it appears that one of the plaintiffs in that judgment was devisee of one-third of such real estate, and one of the defendants was devisee of the other two-thirds; that they both joined in the sale, and each received their just proportion of the purchase-money; and that the note was given some years afterwards to the mother alone; and the alleged consideration thereof is goods sold and money lent at various times, which it is impossible for them now to recollect; which money and goods she had taken in payment on the sale. And the same difficulty exists with respect to almost every item in this specification. In the other specification the principal item is “ Two notes given for the principal and interest of lands sold by Anne Wood, now Anne Barker, and late Anne Williams, in the town and county of Madison; defendants had the money for which the land was sold, $846 30.” The allegation now set up in relation to this is that G-ranston Williams purchased of her about thirty-two acres for which he never paid the purchase-money ; that he afterwards sold it to Hazard and took his notes for the purchase-money, which are probably the same notes sold under the execution and purchased by L. Williams. The statute requiring these specifications to be filed, expressly declares that if the judgment is afterwards drawn in question, the plaintiff- shall be bound and concluded by the specification filed, and shall not thereafter be allowed to set up or insist *on any consideration for the judgment, not mentioned and contained in such statement and specification. (Laws of 1818, ch. 259, sec. 8.) Whatever my opinion might be as to the consideration of these judgments, which is now set up in the answer, I am satisfied the defendants cannot avail themselves of it under these specifications; and the judgments must, therefore, in the language of the statute, “be taken, deemed and adjudged fraudulent as respects any other bona fide judgment creditors.” There is no doubt the complainant is in a situation to take advantage of the statute remedy. He is a bona fide assignee of the judgment, and had an equitable interest in it for his own protection, as indorser of the note, even before that assignment. As a purchaser of the premises under the judgment, he is also entitled to all the rights which the judgment creditor could have. (Hildreth v. Sands, 2 John. Ch. R. 35.)

Independent of the constructive fraud arising from the provisions of the statute, there is strong reasons for believing these judgments were confessed and used for the express purpose of screening the whole of the defendant’s property from the operation of the judgment, which was about to be obtained on the note given by them. The judgments were given pending that suit; and by the stipulation in the case it is admitted that all parties had notice of the note, and of the pendency of the suit thereon. It is true a copy of what purported to be a further answer was-served, in which all the defendants say they had no knowledge that any such suit was pending at the time these judgments were given. If such an answer had actually been put in, it would not, under the circumstances of this case, be entitled to any credit. And from the certificates of the register and clerk, it appears that if any such further answer was sworn to by them they have not dared to put it on file. At the sale, the property was all bid in by the family; and even notes against a responsible person for $650 were turned out to the sheriff, and sold for the nominal sum of $35; and since the sale down to the time of taking the testimony in 1827, the property had remained in the hands of the original owners without any visible change in their manner of using and disposing of the same.

*There must be a decree declaring both judgments fraudulent and void as against the complainant; and the possession of the farm must be delivered up to Mm; and the defendant must execute to him a good and valid release for the same in fee, to be approved of by a master; and the defendants must also pay to the complainant his costs in this suit to be taxed.

[1.] ] Brush v. Kinsley, 14 Ohio, 30; Brigg v. Hill, 6 How. Miss. R. 362; Bland’s Ch. R. 524.