Marsh v. Wendover — 3 Cow. 69

Majority

p. 69

In the matter of Marsh against Wendover, Sheriff of the city and county of New-York.

Headnote

On the 95th of January, 1823, Gibbons recovered judgment in this Court, against W. Messerve, for $1514,10. ^Stamler, on the same day, recovered a judgment, in this Court, against Messerve, for $1789,10. On the 22d of February, 1823, writs of fi. fa. issued on these judgments; and on the 29th April, 1823, Gibbons §• Stamler became joint purchasers for $600 of the real estate of Mes-server They receivéd the Sheriff’s certificate, by which they were entitled to a Sheriff’s deed, on the 29th July, 1824.

On the 24th April, 1823, Stevens recovered a judgment in the New-York Common Pleas, against Messerve, for $218,04, Which was assigned in August, of the same year, to Reed.

On the 13th May, 1823, Messerve was discharged under the act to abolish imprisonment for debt in certain cases, (sess. 42, ch. 101) and Stamler became his assignee..

On the 25th July, 1823, Stevens & Rindge recovered judgment in the New-York Common Pleas, against Messerve, for $405,76, which, on the 16th of February, 1824, they assigned to Marsh. The judgment was upon a relicta and cogno* vit, reserving the exemption of Messerve^ body.

On the 28th July, 1824, Reed, as the asrignee of Stevens, redeemed from Gibbons & Stamler, and tin the same day Marsh redeemed from Reed.

J. Leveridge & S. M. Hopkins,

moved for a mandamus, commanding the Sheriff to convey to Marsh. They contended, that the conveyence tif the land, by the assignment under the insolvent act, or by operation of law, from Messerve to his assignees) would not prevent the judgment of Stevens fy Rindge operating as a lien, though not recovered till after the assignment. The discharge was under the body act, and left the previous and future acqusitions of the insolvent liable to the judgment and execution of creditors. Stamler, being an assignee for all the creditors, was their trustee, pad

Land passes by a general assignment under the insolvent act, anil a tii editor whose judgment against the insolvent is perfected after the assignment has no lien ; and, therefore, cannot redeem within the act, (sess. 43, ch« 184, ft 3.)

p. 70

could do no act to prejudice the rights of his cestuy que trusts (Cas. Eq. Abr. 384.)

J. Platt, contra-.

We think the assignment placed the property be-' yond the reach of the judgment, which was nit a lien* Marsh, therefore, had no right to redeem, and the motion? must be denied.

Motion denied*