Majority
p. 136J. B. Yates against G. Joyce. NEW-YORK, May, 1814.
Headnote
assigneeAófha judgment against B. which was a Zertynt¿ePB0¡ atout to out éxeBon, and be a certain i of land, and C. knowing, &c. pulled down and car-lied away certain buildings, tiie friand, ° "waTdeprive'a of the benefit ment,1S&e.Udit A?mightmaintain an action on tne case against c. for removingti7the property of B. and converting it to his own tent to' defeat tbe^ judgmentTHIS was an action on the case. The declaration contained three counts. The first count stated that in the term of May, e J7 1809, at Schenectady, to wit, &c. Charles Kane recovered judgnient in the supreme court against John Joyce and Darcy Joyce, for 3^00 dollars of debt, and 14 dollars and 43 cents damages, vhich was filed and docketed on the 3d June, 1809. On the ".1th of January, 1812, Kane assigned this judgment to the plaintiff who, on the 8th June following, sued out a test. fi. fa. to the ¡heriff of the county of Schenectady, returnable on the first e v v * Monday in August, directing him to cause the debt and damages 10 be made of the goods and chattels of John and Darcy Joyce, in<^ ^ sufficient goods and chattels could not be found, then of the lands and tenements whereof they were seised, on the said third of June, 1809, &c. The execution was delivered to the heriff of Schenectady on the 8th of June, 1812, and on it a diiection was endorsed to levy 1,474 dollars and 30 cents, with " interest on 1,456 dollars and 56 cents, from the 2d June, 1809, till paid; whioh said writ the plaintiff avers to have been sued out w hjm the plaintiff, in the name of Kane, for the sole benefit v r . . and use of the plaintiff. On the 8th of June, 1812, the said sheriff, for want of sufficient goods and chattels, levied upon a certain lot in the city of Schenectady, with a dwelling-house, store-house, and other out houses on the same, belonging to the said John Joyce, together with all and singular the buildings, &c. the same lot of ground being bound and held by such judgment; yet the defendant well knowing the premises before mentioned, but intending to injure and aggrieve the plaintiff, and prevent his having satisfaction of the said judgment, did, on the 15th of June, 1812, wrongfully, &c. take down, demolish waste, despoil and remove away from the said lot, and convert to his own use, a building of the value of 250 dollars, being part and parcel of the hereditaments and appurtenances of the said lot, &c. well knowing that the same were in execution, and having had notice thereof from the sheriff, to wit, on the, &c. By reason of which premises the plaintiff has been deprived of obtaining satisfaction of the judgment, by virtue of the said writ, and the she
p. 137
riff was prevented from selling the same hereditaments, with the lot of ground, and the said lot of ground was sold for a less sum than it would otherwise have been worth and sold for, to wit, the sum of 1,000 dollars, and so the said plaintiff saith he is injured, &c.
The second count stated the judgment and assignment as in the first count. That the said judgment was a lien upon that certain lot, &c. And that the said John and Darcy Joyce had lot, at the time of filing and docketing the said judgment, sufficient to satisfy the same, other than the said lot, and two pasture lots, and the right of redeeming seven lots on the Albany and Schenectady turnpike, and that they then were, and are still, insolvent and' unable to pay their debts, &c. That the plaintiff ceing minded to cause the said lot to be taken in execution on he said judgment, did, on the 8th June, 1812, cause the same to 3e duly seized and taken in execution"; Yet the defendant, well mowing that the said judgment was a lien, and that the said John and Darcy Joyce had no other estate, &c. to satisfy the lame, except the said lots, &c. and that they were insolvent, tnd that the said plaintiff did intend to take the said lots in exeaition, but contriving, &c. and to defraud him of the recovery ,nd satisfaction of the said judgment, &c. did, on the 8th June, 812, demolish, &c. one barn of the value of 300 dollars, &c. 3y reason whereof the said lot is made of less value, to wit, the um of 300 dollars; and the said plaintiff has been deprived of he benefit of the judgment to that amount.
The third count stated the judgment and assignment as in the irst, and that the judgment was a lien upon that certain lot, &c. fet the defendant well knowing the premises, but contriving, cc. did, on the 8th June, 1812, demolish, Sec. one store-house if the value of 250 dollars and one barn of the value of 300 ollars, being part, Sec. by reason whereof the said lot is made if less value, to wit, the sum of 300 dollars; and the plaintiff as lost the said sum, and the benefit of the judgment to that mount. By reason of all which premises he has sustained amages to 3,000 dollars, Sec.
To the first count the defendant pleaded,
1. The general issue.
2. That Kane did not assign in manner and form, &c. and tenered an issue.
p. 138
3. That long previous to the time of the alleged assignment anc[ }ong previous to the time when the said judgment is supposed to have been obtained, to wit, on the 26th February, 1805, the said John Joyce, for securing the payment of 750 dollars with interest annually, mortgaged to the new loan officer; of the county of Albany, all that certain house and lot of ground, situate, &c. as the same was conveyed to him, &c. being ii: breadth, See. together with, &c. which is the same lot in the first count of the plaintiff’s declaration pretended to have beer seized and sold under execution; that after the execution and delivery of the mortgage, and before the time of the sale, to wit. on the 30th May, 1811, the said John Joyce having failed in the payment of the yearly interest due on the mortgage on the first Tuesday of May, in the said year, the said new loan officers became seised of an absolute indefeasible estate in the mortgagee premises, and the equity of redemption was thereby foreclosed pursuant to the statute, Sec.
4. That previous to the seizure and sale, and previous to the assignment, to wit, on the 21st August, 1800, the said lot was exposed to sale at public auction by the sheriff of Schenectady, by virtue of two writs of fi. fa. issuing out of the supreme court against John Joyce and a test fi. fa. against John Darcy Joyce, and w;as sold to the defendant, he being the highest bidder; and the sum at which the same was struck off having been paid to the sheriff, he executed a conveyance in fee of the lot to the defendant, by virtue whereof the defendant entered into possession, and continued in the reception of the rents and profits until the time of the pretended assignment, and at the time of the pretended seizure was, and for a long time previous had been, in the actual possession of the same, See.
There was a replication to the third plea, protesting that the plea is insufficient, and protesting that at the time of the seizure and sale John Joyce was in legal possession, and had an estate in fee in the premises, and that the same was bound by the judgment; that there was and is no interest due to the new loan officers, and that John Joyce was not foreclosed of all equity of redemption in manner and form, &c. and this he prays, &c.
There was a replication, also to, the fourth plea, protesting that the plea is insufficient, Sec. that the judgment in favour of Kane was duly filed and docketed in the records of the supreme court, to
p. 139having a mere lien only, and not being in possession, could not maintain any action against the defendant, who is answerable only to the person in possession. The defendant had no license from the tenant in possession to enter and remove the building.[3] Trespass would, therefore, lie against him at, the suit of the tenant, and in that action, the defendant could not set up in bar, a recovery in the present suit. There is no precedent for such an action as this, though the case must haves frequently occurred. An action on the case is not brought upon any writ formed in the register, but the writ varies according to the variety of the case. In all cases where a.person sustains a temporal loss or damage by the wrong of another, an action on the case lies at
Wit, in the clerk’s office of the said court, at the city of Albany, long before the judgments or either of them, upon which the said sale and conveyance to the defendants were made, were filed and docketed, and this the plaintiff is ready to verify, wherefore, &c.
To the second and third counts there was a general demurrer and joinder.
Foot, in support of the demurrer, contended that the plaintiff
J. V. N. Yates, contra.
The question is, whether an action on the case will not lie against a person for fraudulently endeavouring to defeat the plaintiff’s satisfaction of his judgment or execution, by removing the property. In principle, the law is in favour of such an action, and analogous cases are to be found in the books. In Smith v. Tomadla an action on the case was brought by an administrator, durante minore átate of an executor, &c. against the defendant, for conspiring with one S. against whom the testator had a judgment, on which the administrator intended to take out execution, to defeat that judgment, by procuring S. fraudulently to confess a judgment to the defendant, to whom he owed nothing, and taking out execution on such judgment, and seizing and carrying away the goods of S., which were sufficient to pay the plaintiff’s judgment, and took and converted them to his own use, by reason whereof the plaintiff lost his debt. There was a demurrer to the declaration in that case, on the ground that no action would lie, but the court of king’s bench gave judgment for the plaintiff, and ona writ of error to the house of lords, the judgment was affirmed.
p. 140the suit of the party injured to repair the damage.[3] Where one person does an act, which, if done by two, would amount to a conspiracy, an action on the case lies.[4] The common law abhors all manner of fraud, and wherever a person is injured by the fraudulent acts or contrivances of another, it will afford a remedy.
If this court, on affidavit, would have interfered in favour of the plaintiff to prevent the injury, he is clearly entitled to an action to repair the wrong done to him by the defendant. It cannot be objected that the plaintiff is only an assignee of the judgment, for it is alleged in the declaration that the defendant knew of the assignment to him; and this court will protect the rights of an assignee.
This appears to be an action of the first impression. The books do not furnish a precedent in its favour. It is obvious, however, from the statement of the plaintiff’s case, in the declaration, the truth of which is admitted by the demurrer, that he has sustained damage by the act of the defendant, which he alleges was done fraudulently, and with intent to injure him. It is the pride of the common law, that wherever it recognises or creates a private right, it also gives a remedy for the wilful violation of it. The facts stated in the declaration being admitted by the demurrer, we are to assume that the plaintiff had acquired a legal lien on the property, by means of the judgment in favour of Kane, and the assignment of it to himself; and that the injury to the property was done with a full knowledge of the plaintiff’s rights. If, then, there is any remedy for him, it is in this form of action only that he can obtain it. Trespass will not lie; for the plaintiff was not in possession. The principle which governed the decision in the case of Smith v. Tonstall, (Carth. 3. 13 Vin. Abr. 553.) is somewhat analogous. It was there ruled that an action will lie against the defendant for confessing a judgment by fraud, in order to prevent the plaintiff’s having the benefit of a judgment he had obtained against him. It is a sound principle, that where the fraudulent misconduct of a party occasions an injury to the private rights of another, he shall be responsible in damages for the same; and such is the case presented by the pleadings in this cause. The plaintiff must, accordingly, have judgment upon the demurrer.
Judgment for the plaintiff»