McCullough v. Colby — 18 N.Y. Super. Ct. 477

Majority

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McCullough, Plaintiff and Appellant, v. Colby et al., Defendants and Respondents.

Headnote

1. It is essential to the right of plaintiffs in a judgment to maintain an action to set aside a deed of real estate made by the defendant in such judgment, as having been made with intent to defraud creditors, that an execution should have been issued on such judgment to the Sheriff before suit brought.

2. Unless the complaint avers the fact of issuing such execution, it will not state facts sufficient to constitute a cause of action.

3. Although such an execution be issued after suit brought, that fact cannot be made a part of the plaintiff’s case, either by amendment of his complaint or by supplemental complaint

(Before Hoffman, Siosson and Woodruff, J. I.)

Heard, November 9;

decided, December 10, 1859.

This is an appeal by Charles H. McCullough, the plaintiff, from, a judgment dismissing his complaint. The action was tried before Mr. Justice Hoffman, without a jury, on the 21st of June, 1859.

The action was brought against John L. Colby and Mary Ann Colby, to set aside a conveyance from the former to the latter, as fraudulent and void as against the plaintiffs, who were judgment creditors of John L. Colby. Other persons, holding mortgages on the property, so conveyed, were made parties, but no personal claim was made against them, and no question arises in respect to them.

The Judge’s conclusions of fact and of law are as follows:

“ 1. That the action was brought to set aside a conveyance of real estate made by the defendant, John L. Colby, to the defendant, Mary Ann Colby.

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“2. The plaintiff recovered judgment against the said John L. Colby, on the 27th day of March, 1857.

“ 3. The defendant, John L. Colby, was served with a summons in this action on the 4th of April, 1857. The defendant, Mary Ann Colby, was served with a summons out of the State on the 6th of May, 1857, and on the 23d of May she voluntarily appeared and answered. An order had been made on the 8th of April, 1857, for commencing the suit by publication as against her; but no publication was made under the same.

“4. An execution upon the judgment in favor of the plaintiff was issued on the 11th of April, 1857.

“The complaint, as served, not stating the issuing of an execution on the judgment, and such fact not being admissible to be put upon the record in the case, I find, as a conclusion of law, that the complaint does not state facts sufficient to constitute a cause of action, and order judgment dismissing the same.”

The plaintiff excepted to the decision, and from, the judgment entered thereon the present appeal is taken.

F. H. Upton, for plaintiff,, (appellant.)

I. This action is not, in any sense, a creditor’s bill; it is an action by a judgment creditor for the removal of a fraudulent obstruction to the satisfaction of his judgment, out of specific real estate of the debtor; and'in such an action it is not necessary to aver the issuing of an execution upon the judgment, because the issuing of an execution is not an essential preliminary to its commencement.

The case in 5th Sandford stands alone, in apparent conflict with this position. In a review of that decision it will be found that all the authorities, precedent and subsequent, concur in establishing the following general principles:

1. When a judgment creditor files his bill to set aside a fraudulent transfer of personalty, he must aver the issuing of an execution upon his judgment, because he can obtain a lien upon the personalty of his debtor only by virtue of his execution in the sheriff’s hands.

2. When a judgment creditor files-his bill to reach the choses in action of.his debtor, or property not susceptible of being levied

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upon, he must aver the issue and return of an execution unsatisfied, because upon such property he can only acquire a lien by filing his" bill after the issue and return of an execution; and

3. When a judgment creditor seeks only to set aside a fraudulent conveyance of real estate, he need not aver the issuing of an execution, because his lien is perfect by the docketing of his judgment, and the action is brought to remove a fraudulent obstruction to its enforcement.

II. The case in 5th Sandford was that of a bill filed not only to set aside fraudulent conveyances of real estate, but also of personal property, and to reach choses in action. It was, and by the Court was declared to be, analogous to the judgment creditor’s bill, strictly so called. It follows that the only portion of that decision which can be regarded in any sense as authoritative, is that which is applicable to the case then before the Court, namely, to a bill “analogous to a judgment creditor’s bill, strictly so called.” The complaint in this case has no analogy to a judgment creditor’s, and therefore the decision in the case in 5th Sand-ford (as distinguished from the dicta contained it) cannot be applied to this case.

III. The case in the 5th Sandford, '(apart from its decisions applicable to a judgment creditor’s bill,) is in conflict with all the previous decisions upon the subject in our own Courts. (Hen dricks v. Robinson, 2 Johns. Ch., 284 ; Bayard v. Hoffman, 4 id., 450; Brinckerhoff v. Brown, 4 id., 671; Spader v. Hadden, 5 id., 280; McElwain v. Willis, 9 Wend., 548 ; Beck v. Burdett, 1 Paige, 308; Clarkson v. De Peyster, 3 id., 320; Dix v. Briggs, 9 id., 596; Coe v. Whitbeck, 11 id., 42.)

IV. The opinion of the Court, in 5th Sandford, as applicable to any other than a judgment creditor’s bill, is not sustained by the authorities cited in its support.

The authorities cited by Mr. Justice Campbell, in giving the opinion of the Court, are the English authorities exclusively. They are cited by Chancellor Kent as sustaining the decisions in Johnson, and by Chancellor Walworth and Chief Justice Nelson, and others, in the subsequent decisions.

1; will be seen that Chancellor Kent, as well as the other erni'i mt Judges, in their several decisions, state the reasons for tli inciples established (as set forth under the 1st point) vith

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much elaborate discussion and reasoning, as well as citation of the English authorities; but Mr. Justice Campbell says, in allusion to these cases, “ they are mere dicta, arid no reasons are given in any of these cases in our Courts for the doctrines which they declare.”

Mr. Justice Campbell was led into a total misapprehension of the doctrine announced by the English authorities, by reason of his erroneous supposition of the existence of analogies where no ,analogy exists.

The doctrine is simply this, that the Chancery jurisdiction, in aid of a creditor seeking to reach the property of his debtor to satisfy his judgment, depends altogether upon the creditors having proceeded to the extent requisite to acquire a lien upon the property designated, by taking the last step available to that end, at law. How, each English case, without exception, referred to by Chancellor Kent, and with one exception, by Judge Campbell, was where the property sought was either personal or equitable interests; and inasmuch as a lien by a judgment creditor could only be acquired upon this character of property in the one case by the issuing of an execution upon the judgment and placing it in the Sheriff’s hands, and in the other by the issuing and returning an execution unsatisfied, and the filing of a bill; it follows, that in such cases, unless this is averred to be done, there is no jurisdiction in Chancery. As a necessary consequence of this doctrine, (as to property other than real,) in a case where the property sought to be reached is real estate only, inasmuch as the lien of the j udgment creditor upon this, under our statute, becomes absolute by the mere docketing of the judgment, and is not made more absolute, more perfect, or more specific, by the issuing of an execution, it was considered, by Chancellor Kent, as an irresistible logical deduction, that in such a case, in which the judgment creditor seeks the aid of a Court of Chancery solely to reach the real property of his debtor, the jurisdiction attaches upon the docketing of the judgment, because that act is the last available step which the creditor can take at law for the perfecting his lien and completing his title.

Mr. Justice Campbell, in addition to the English authorities cited by Chancellor Kent, cites and relies upon one recent decision in England. It will be seen, under the next point, how

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entirely he has misapprehended the authority of that case, and how completely it sustains the dicta of Chancellor Kent.

V. The opinion in the case in 5th Sandford, so far as it is applicable to other than creditor’s bills, strictly so called, is based upon clearly erroneous assumptions of facts and analogies.

1st. Mr. Justice Campbell says: “The statutes of this State make judgments, when docketed, liens on the real estate of the debtor; but these liens are general, not specific.” On the contrary, they are both general and specific. No lawyer will pretend that the lien of a judgment creditor upon his debtor’s real estate can be made more specific, more absolute or more perfect by the issuing of an execution upon the judgment.

2d. Mr. Justice Campbell says: “In England, by force of ancient statutes, as under our laws, the judgment becomes, from the time of its docket, a lien upon the freehold estate of the debtor.” This is not so. On the contrary, in England, as in some of our own States, Kentucky, Mississippi and North Carolina, judgments do not become liens upon their being docketed, but only upon the delivery into the hands of the Sheriff of an execution or elegit. And this leads to the

3d. Erroneous assumption in the case in 5th Sandford. Mr. Justice Campbell says that “the elegit in England is analogous to our writ of fi. fa.” This is not so. On the contrary, the issuing of the elegit on the judgment, in England, is.essential to the acquisition of a lien upon the real estate of the debtor. The fi. fa. under our law performs no such office. The lien is perfect, specific and absolute when the judgment is docketed, and before the fi. fa. is issued.

4th. These several erroneous assumptions are at the basis of the misinterpretation, by Mr. Justice Campbell, of the authority of the case of “Neate v. The Duke of Marlborough," which is relied upon as the support of the decision in 5th Sandford. For if it be not true that “ the elegit in England is analogous to our writ of fi. fa.," and if it be not true that “in England, by force of ancient statutes, as under our laws, the judgment becomes a lien upon the freehold estate of the debtor from the time of its docket,” and if it be true that in England the issu'ing-of the elegit upon the judgment is essential to the acquisition of the lien, then it follows that Lord Cottenham in gi ving the opinion .df the Court

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in Neate v. The Duke of Marlborough, that a judgment creditor cannot come into Chancery for aid, to reach the realty of his debtor, without first suing out his elegit, in truth announces the very doctrine promulgated by Chancellor Kent, and by all the early decisions in our own Courts. It is only necessary to read the opinion of Lord Cottenham, in the case cited, a little further than the language of it, as quoted by Mr. Justice Campbell, to demonstrate the erroneous assumptions of the case in 5th Sand-ford, and to show how completely the authority of the English cases is perverted by reason of these errors.

VI. The opinion in the case in 5th Sandford, so far as it is applicable to cases other than those analogous to judgment creditor's bills, strictly so called, is not only unsupported by the English decisions, cited to sustain it, and in conflict with all the previous decisions in our own Courts, but it is repudiated by every subsequent decision in our own Courts of concurrent jurisdiction and authority, in which the question has arisen. (Cooper v. Classon, 1 Code Rep., N. S., 347; Parshall v. Tillou, 13 How. P. R., 7 ; Greenwood v. Brodhead, 8 Barb., 593 .)

In the case last cited, the principle, as evolved from all the authorities, is briefly and very clearly stated, and acquires an importance, because, as stated, it is subsequently cited •with approval by our Court of Appeals. The principle is thus stated:

“ I think the true rule is this: To authorize any person to demand the aid of this Court in directing the appropriation of partnership property, he must have a lien, either legal or equitable, upon it, or must be in a situation to assert such Ken. A creditor must obtain such a lien on-the property before he can control it. If it be real estate, he obtains this lien by judgment, docketed. If personal property liable to execution, by the issue of an execution and levy; and if choses in action, by the return of the execution unsatisfied, and the filing his complaint.”

VII. The opinion in the case in 5th Sandford, so far as it is applicable to the case of a judgment creditor seeking merely to set aside a fraudulent conveyance of real estate, which operates as an obstruction to the satisfaction of his judgment, by the enforcement of its lien, is repudiated by the clearest expression of opinion, if not by the authoritative decisions of the Court of

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Appeals. (The Chautauque Bank v. White, 2 Seld., 236; Crippen v. Hudson, 3 Kern., 161.)

VIII. The provisions of sections 127, 135, (5th subd. of the last clause,) 136 and 139 of the Code, applied to the facts of the case, show that the execution had in truth been issued upon the plaintiff’s judgment, (April 11th, 1857,) nearly a month before this action was, in judgment of law,, commenced—which was certainly not before service upon the fraudulent grantee out of the State, namely, May 6th, 1857.

She is the only party against whom any relief is sought.

Without service upon her, no proceeding could be taken in the action by the plaintiff of any kind whatever.

The lis pendens, although filed at the time of service on the other defendants, had no operation at all until May 6th, 1857, when the holder of the fraudulent title was served.

A purchaser for value, between the time of service on the other defendants and on the fraudulent grantee, would, unquestionably, have been protected, notwithstanding the Us pendens.

IX. If an execution had in fact been issued before the action was commenced, and if the issuing of an execution is a fact necessary to constitute the cause of an action like this, then the equities, as disclosed by the case, clearly require that the plaintiff have leave to supply the averment by amendment.

1. The objection is purely technical and formal.

2. It might have been raised, at the commencement of the action, by demurrer.

3. If sustained, it operates to defeat another action.

4. If sustained, and the plaintiff is compelled to bring another action, his rights are lost; the property is sold, and the principal defendant is beyond the reach of process.

J. M. Robertson, for defendants, (respondents.)

I. This action cannot be maintained against the defendants, John L. Colby or Mary Ann Colby, because no execution had been issued on the judgment, which is the foundation of this action, at the time it was commenced. (N. A. Fire Ins. Co. v. Graham., 5 Sand. R., 198.)

The case in 5 Sandford, above referred to, so far as it concerns this point, is entirely analogous to the present. There the com

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plainants had obtained a decree for a deficiency on a sale of mortgaged premises, and the bill charged that at the time of '"contracting the original obligation, and for a long time subsequently, the defendants were the owners of certain real estate described in the bill, and that the same was conveyed away, fraudulently, prior to the docketing of the decree; the prayer of the bill is (among other things) that the conveyance made by them be set aside; that, hindrances and incumbrances being removed, the complainants may issue execution. In the present case, the plaintiff had obtained a judgment against J. L. Colby, and the complaint charged that he had, fraudulently, prior to the docketing of his judgment, conveyed the real estate described in the complaint to Mary Ann Colby-, and prays that said conveyance be declared void and canceled of record.

The object of the action in both cases is to remove an obstruction to the enforcement of the lien of a judgment.

' II. The law, as announced in the North American Fire Insurance Company v. Graham, is founded in principle, and is in accordance with the well established rule in England, as well as the general understanding and practice of this State. (Neate v. Duke of Marlborough, 3 Myl. & Craigh., 407; 9 Simons, 60; Mitf. on Pl., 114, Dublin ed.; Story’s Eq. Juris., §1216; Wiggins v. Armstrong, 2 J. Ch. R., 144; Bennett v. Musgrave, 2 Ves. Sen., 51; 3 Atk., 200; Cooper’s Eq. Pl., 149.)

. It will be seen by the above cases that it is well established in England that a bill in equity cannot be filed to remove obstructions upon a freehold estate without having first issued an elegit. ' There "is a perfect analogy between an execution in this State and an elegit in England. A judgment in this State binds the real property from the time it is docketed ; in England it binds the land from the time it is signed. (Statute of Frauds, 29 ; Car. II, ch. 3, and statute 1 and 5 Vict., ch. 110, §19.; Blackstone’s Com. by Chitty, vol. 2, p. 326.)

But a judgment in England or in this State, does not give a lien within the proper sense of that term, for it gives no possession- or right to possession of the property; the judgment merely binds-the property, it is merely an obstruction to the conveyance of the property, and the effect of the execution is to give the •creditor a'legal title. The object of the elegit in England is to

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put the creditor into possession of the property, and of the execution in this State to put him in possession of the property or its proceeds, and thus perfect his lien or title; and having done all he can do to perfect his title, if he finds an obstruction to. his execution, he is then in a condition to ask the aid of a Court of-Equity to have it removed. But if he never asserts the lien of his judgment by execution, is this Court to give him the benefit-of a lien to which he has never asserted his right ?

It is a well established rule that the aid of a Court of Equity cannot be sought until every remedy at law has been exhausted. The law has given a remedy by writ of execution, and this writ is the only means provided by law for the enforcement of a judgment; a judgment itself never satisfies a demand; it is merely a final declaration of rights between the parties, declaring his right to enforce payment by execution. The plaintiff in this case has not availed himself of a remedy with which the law has armed him; he has left untried the only remedy which could have given him satisfaction; and he is asking the aid of a Court of Equity, without having first exhausted his remedy at law.

It is against the policy of the common law, as well as the express statutes of this State, to sell real property for debt, except upon a certain contingency, namely, the want of sufficient personal property to satisfy the demand. There must be a complete exhaustion of all remedies against personal property; the writ commands that the judgment first be satisfied out of the personal property, and failing in this, then he may resort to real estate; and until it has been ascertained that the debtor has no personal property, you cannot touch a single inch of the land. A fortiori,. you cannot move in a Court of Equity to remove incumbrances on the land until that fact has been ascertained. But how is this Court to know that this contingency has ever happened? How is the Court to know that any remedy has been sought against personal property, except by the issuing of an execution, which is the only way the law has provided—the highest and best evidence, which is the kind of evidence the law requires ? It is not the party who is to be the j udge of whether there is personal property or not; that is the prerogative of the Sheriff alone. The law, for wise purposes, has taken it out of the hands of the party.

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But suppose, immediately after judgment is obtained, a bill is filed to remove incumbrances, with an averment that there is no personal property, and after a protracted litigation the incumbrance is removed; but -in the meantime, in the mutations of fortune, the debtor has acquired ample personal property to satisfy the judgment; then when an execution would be issued, the Sheriff would satisfy the judgment out of the personal property, and the protracted proceedings to remove the incumbrance would be nugatory and of no practical effect; but if execution has been issued before suit brought, and the incumbrance removed, the creditor may proceed against the real estate without reference to the question whether or not, in the meantime, the debtor may have become possessed of sufficient personal property to satisfy the judgment. His right to proceed solely against the real property has been perfected by his execution.

In every ease found dn the reports of this State, where a decree has been made setting aside a conveyance of real estate for fraud, an execution had first been issued. (Hendricks v. Robinson, 2 John. Ch. R., 284; Clarkson v. De Peyster, 3 Paige, 320; Beck v. Burdett, 1 id., 305.)

In Brinkerhoff v. Brown, (4 John. Ch. R., 671,) the com.plainant filed his bill before he had recovered judgment; and Chancellor Kent says: “ The legal remedy by execution must first be tried.’1 “ This Court is not to know by anticipation that it will be ineffectual.” And he adds: “ It is sufficient to observe that I find the. rule to have been long and uniformly established, that to procure relief in equity by a bill brought to assist the execution of a judgment at law, the creditor must show that he has proceeded at law to .the extent necessary to give him a complete title.” The rule referred to is that stated in Mitford’s Pleadings, above referred to.

The case of the North American Fire Insurance Company v. Graham, is the only case to be met with in the reports of this State where the question has been argued and adjudicated. The highest tribunal known to this Court, which has passed on the question, has solemnly decided, after a full argument, that the action cannot be maintained; and it is the duty of the Court to sustain the decision upon the principle of stare decisis, even if its soundness should be doubted; for the correction of the error

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will not compensate for the evil of shaking the stability of the decisions of this Court. If the decision were wrong, the plaintiff is not without his remedy. The Court of last resort is the proper tribunal to correct the error if it existed. (Curtis v. Leavitt, 15 N. Y. R., 188.)

It is admitted that the only question before us on this appeal is, whether a complaint filed by a creditor who has obtained a judgment against his debtor, for the purpose of setting aside a conveyance as fraudulent, must not allege an execution issued and returned, or at least that an execution has issued.

The case of The North American Company v. Graham, (5 Sandf., S. C. R., 197,) is an authority which ought apparently to dispense with any examination of the present case, and to call upon us to rest the decision of this appeal upon that alone. It has been commented upon with industry and ability, and its correctness disputed upon many grounds, of more or less weight. In my opinion, it can be supported, as the true exposition of the law; and we are at liberty and may be usefully employed in sustaining its authority.

Before - the statute of 13 Edward I, cap. T8, the lands of a debtor could not be reached in any mode for obtaining satisfaction of the debt, except, 1st, in a case involving the King’s prerogative, and 2d, against the heir on a lien created by his ancestor, such as a statute, staple, &c. This, Lord Coke observes, seems strange; custom and usage had so far encroached on the common law. (Harbert's case, 3 R., p. 12.)

The levari facias was, as far as I can understand, used only in three cases. The first was upon the process of outlawry, when after the capias utlagatum there could issue a venditioni exponas to sell the goods; a scire facias to collect the debts; and a levari facias to levy the issues and profits of the land. (Watson on Office and Duty of Sheriffs, pp., 160, 161, 163; Law Library, vol. 7, p. 115, &c.)

The second was upon a recognizance binding lands being forfeited. (Tenny de la Ley, 479; Fitzherbert Natura Brevium, fol. 265, D.)

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The rents and profits were alone taken. Possession was not delivered, and the third ease was of proceedings against clerics.

The statute of 13 Edward I, cap. 18, provided as follows: “When debt is recovered or knowledged in the King’s Court, or damages awarded, it shall be from henceforth in the election of him that sueth for such debt or damages to have a writ of fieri facias unto the Sheriff for to levy the debt of the lands and goods; or that the Sheriff shall deliver to him all the chattels of the debtor (saving only his oxen and beasts of his plough) and the one-half of his land, until the debt be levied upon a reasonable price or extent. And if he be put out of that tenement, he shall recover by a writ of novel disseisin, and after by,a writ of redisseisin if need be.” (Statutes at large, vol. 1, p. 93.)

The form of the elegit was this: commanding the Sheriff “that of all the goods and chattels of the defendant in his bailiwick (except his oxen and beasts of the plough) and also a moiety of the lands and tenements in the Sheriff’s bailiwick, of which the defendant, on the day the judgment was obtained or at any time afterwards, was seized, he should cause without delay to be delivered to the plaintiff, by reasonable price and extent, to hold the said goods and chattels as his own proper goods and chattels, and to hold the moiety of the said lands and tenements, as his freehold, .to him and his assigns, according to the form of the statute, until the debt and damages should be thereof'levied.” (Brownlow’s Brevia Judiciala, p. 77; Watson, Office, &c., of Sheriff, p. 207; Law Library, vol. 7, p. 149; Moyles Book of Entries, 37; Curzon’s Law of Executions, 150.)

Some points of moment were well established under this statute. First, all the goods were delivered at a price found by a jury in a manner which was afterwards prescribed. The goods were not sold as upon a fi. fa. Second, the word “price” was referred to the goods, and the word “extent” to the lands. Each was to be appraised through a jury. The goods were delivered at such appraisement, and the moiety of the lands, at the annual value so found. Third, if the chattels taken were sufficient to satisfy the debt, the Sheriff was not to extend the land. (2 Inst., 395.) Fourth, we see that the form of the writ imports that the judgment had at least this effect, that when the elegit

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was sued out, the land owned at the day of obtaining the judgment could be delivered.

The statute of 29 Car. II, cap. 3, § 10, was intended to enable a judgment creditor to reach the land of a cestui que trust. It was adopted in our former statute. (1 R. L. of 1813, p. 74.) But it was that the land could be reached where a party was seized in trust for the debtor at the time of the execution sued. This was held to refer to the seisin of the trustee, and therefore where he had conveyed with assent of the cestui que trust before execution, though after judgment, the land could not be taken. (Hunt v. Coles, Comyn R., 226.)

It was a fixed principle of the law, that a judgment operated by relation as of the first day of the term in which it was obtained. “If judgment for debt or damages was given in banco upon a trial at nisi prius, the plaintiff shall have execution of the land which the defendant had at the day of the nisi prius, for this and the day in banco are but one day in law.” (Dyer’s R., 149.)

“ So he shall have execution of the land the day the inquest is taken; but he shall not have execution of the lands that the party had on the day of the writ purchased.” (Year Book, 29 Ed. III, 27.) Again, “if a man recover debt, he may sue execution of any land the party had at the time of the judgment, though he had aliened it before execution. So of any land that he had purchased after the judgment, although he had aliened it before execution.” (Year Book, 30 Ed. III, 24.)

The statute of 29 Car. II, cap. 3, §§ 13, 14, 15, (Statutes at large, vol. 3, p. 386,) has this remarkable preamble: “ And whereas it hath been found mischievous that judgments in the King’s Courts at Westminster do many times relate to the first day of the term whereof they are entered, or to the day of the return of the original, or filing the bail, and bind the defendant’s lands from that time, although in truth they were acknowledged or suffered and signed in the vacation time, after the said term, whereby many times purchasers find themselves aggrieved.” Then the act directed the day of signing to be entered on the margent of the roll, and the paper book or record signed by the Judge. They were to be judgments from that time, and not from the first day of the term as to purchasers. (See also the Statute 4, 5, William and Mary, cap. 20, 3 Statutes at large, 526.)

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It was held under the statute of elegit that if there were goods and chattels to the value of the debt, the land should not be extended. (45 Ed. III, 22, b; 2 Inst., 59, 395.) We are to notice that under the first clause of the elegit, whatever goods and chattels could be taken upon the old writ of fieri facias might be taken under the elegit. (Watson on Sheriffs, 207.)

In Virginia the statute giving any right to lands under a judgment is almost a transcript of the statute of Westminster, the second. 13 Edw. I. (Burton v. Smith, 13 Peters R., 480.) And Chief Justice Marshall, in The United Statesv. Morrison, (4 Peters, 124,) says: “ There is no statute in Virginia which, in express terms, makes a judgment a lien upon the lands of the debtor. As in England, the lien is the consequence of a right to take out an elegit. During the existence of this right, the lien is universally acknowledged.”

In that case the point decided was, that the right to take out an elegit was not suspended by suing out a fieri facias, and, consequently, that the lien of the judgment continued pending the proceedings on that writ. The decision proceeded upon that of the Court of Appeals in Virginia, which, no doubt, was the case of Coleman v. Cook. (6 Randolph’s R., 618.)

In the last case, writs of fi. fa. had been issued. The Sheriff had made some part of the judgment creditor’s debt upon them, and had not returned nulla bona as to the rest of the demand. Ho other execution had been taken out. The bill in Chancery to reach property was sustained.

In Burton v. Smith, (13 Peters, 464,) a case arising in Virginia, a judgment was obtained and an elegit issued upon it. The judgment was had in June, 1827, the elegit issued in October, and a deed, under which the questions arose, was made in August of the same year. The question was, whether a reversion expectant on an estate for life was bound, and could be reached in a Court of Chancery and be sold under its decree. The Court say: “In relation to lands of which the debtor has the actual seisin, there is no doubt but that the judgment creates a lien.” The language in The United States v. Morrison, (supra,) is then quoted; and, after examining authorities, the Court proceed: “We are, therefore, satisfied that the judgment of the appellees bound the reversionary interest in the land in question.” The contest was between

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the judgment creditors and a purchaser under the deed of August.

In The Bank of the United States v. Winston, ( 2 Brock., 252 ,) Chief Justice Marshall says: “ The lien depends on the right to sue out an elegit'' In Massingill v. Downs, (7 How. U. S. R., 760-768,) it is observed: “ The lien, if not an effect of the judgment, is inseparably connected with it. And this is the case whether the lien was created by the judgment and execution or by statute.”

In Coutts v. Walker, (2 Leigh’s R., 268,) Walker recovered judgments against Patrick Coutts, son of Reuben Coutts, on the 2d of March, 1821, and sued out executions thereupon. Two deeds were executed by Patrick between the first day of the term and the day of the actual rendition of the judgment. These deeds were alleged to be fraudulent. No proof of this was given; but the question arose, whether a certain equitable interest of the judgment debtor, which was in him on the first day of the term, could not be reached by a bill in Chancery of the creditor. It was held that this could be done. Two points were declared: 1st. A judgment creditor obtains a lien in equity on an equitable estate, as he acquires a lien at law on a legal estate; 2d. Judgments related to the first day of the term in which they were rendered, except, in England, as to purchasers under 29 Car. II, ch. 3, § 14. That act was not part of the law of Virginia.

It deserves notice that the most accurate English writers speak of the judgment forming a lien upon, or binding, the lands.

Thus, Baron Gilbert, (on Executions, p. 38,) says: “The judgment binds, not only the lands and tenements of which the defendant is -actually seised, but also the reversions on leases for lives, as well as for years.”

So in 2d Wm. Saunders, 68: “Judgments bind, not only lands of which the defendant is actually seised, but also reversions; and, therefore, a moiety of a reversion may be extended.”

Watkins on Descents, (p. 40,) uses similar language: “It is upon these principles that the authorities lay down the doctrine that a judgment binds a reversion after an estate for life.”

These expressions of elementary writers are referred to, by BARBOUR, J., in the case of Burton v. Smith, above cited.

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' Mr. Bingham, (on Judgments and Executions, law library, vol. 13, p. 40,) says: “ As against the defendant and his heirs, the judgment binds a moiety of all the freehold lands and tenements which he, or any person in trust for him, were seised of at or after the time to which the judgment relates.”

So, Chancellor Walworth, after noticing that the Statute of Westminster does not, in terms, create a lien so as to prevent a sale before execution, observes that the. uniform construction of the statute has been to give such a lien upon all lands which could be reached by the process of the Court, from the entry of the judgment. (Manhattan Co. v. Evertson, 6 Paige, 457-467.)

It deserves notice, also, that the judgments of the United States Courts become liens solely by force of the process act of 1792 and 1789, making the forms of writs and executions the same as those used, in the Supreme Courts of the respective States. Where the execution can take real estate held at the time of the judgment, the lien prevails. (Konig v. Bayard, 1 Paine & Duer’s Pr., 289; Manhattan Co. v. Evertson, supra; Tayloe v. Thompson; 5 Peters’ R., 358.) The line, of reasoning of Mr. Justice Thompson in Konig v. Bayard is quite pertinent to the present question.

It seems to me quite illogical, and inconsistent with the form of- the writ.and the admitted operation of the statute, to say that the elegit created the lien on lands. If it did, the lien could not have existed, before the .writ issued, and the statute could not have warranted the taking of lands aliened after the judgment, and before the ehgit was issued.

'On the other side, the statute did not, in express words; declare the judgment a lien, as has been done in statutes in many of our States—for example, in our old act of 1813. It may, then, not be logical and precise to say that the judgment created the lien.

Yet the statute does, practically and substantively, amount to this. The judgment shall operate to give to the judgment creditor a power to take lands held at its date, whenever he shall take out a writ of elegit to enforce such power. This is a right to take the moiety of the land. What is this but a right to do something with- the land?—to subject it to payment of his demand? The general use of language authorizes us to call this a lien.

p. 493

These views aid in the estimation of the authority of Neate v. The Duke of Marlborough. (3 Mylne & Craig, 407.) As a decision it is explicit that an elegit must be issued, although it need not be returned. It is shown that the case of Manningham v. Lord Bolinbroke was a case of a demurrer overruled, because it was not necessary to state the return of the writ, although it was so as to its having been issued.

The language of Lord Cottenham imports merely that the judgment per se gives no title to the land, and therefore does not authorize an application to the Court of Equity. It is the act of Parliament which gives the legal title upon taking out the writ— that legal title or right being to bring ejectment. If obstructed in this, the Court gives its aid. In other words, it is not because there was nothing of lien, but because the creditor had not asserted such lien by the usual process—in truth, had not shown a remedy at law ineffectual.

The view, which I consider as entirely satisfactory upon this point, is this: I have before shown that it was an ancient ‘rule, that if there were goods and chattels sufficient to pay the debt, lands should not be extended. The elegit comprised in one writ the direction to make the debt out of goods and chattels, and out of a moiety of the lands. The construction and rule which required that the goods should be first resorted to, has been adopted in terms in all the executions known in our State since the year 1787.

Thus, in the law of the 19th of March of that year, (1 Greenl., 407,) section 7, the execution to be issued against lands and tenements is to command the Sheriff that of the goods and chattels he make the debt, &c., and if sufficient goods and chattels cannot be found, then he cause the debt to be made of the lands, &c. Section 9 of the revised act of 1813, (1 R. L., 502,) is exactly to the same effect. The provision of the Revised Statutes of 1830 is substantially the same. (2 R. S., 367, § 24.) And the Code is, •that if the execution is against the property of the judgment debtor, it shall require the officer to satisfy the judgment out of the personal property, and if sufficient personal property cannot be found, out of the real property belonging to the debtor on the day when the judgment was docketed.

p. 494

In all this there is the plain principle found that personal property is the primary fund for payment of the judgment debt, and an execution to reach such property is the regular and known method of ascertaining whether it exists or not. It is presumed that the Sheriff does his duty and will levy upon personal property if it can be found; but to raise this presumption the writ must, of course, be in his hands.

This line of reasoning tends to support the right to file such a bill as the present, after execution issued, and before its return, upon allegations of.the inability of the Sheriff to find personal property, and of the interposition of the fraudulent transfer of real estate; and for this we shall find considerable authority in the cases hereafter mentioned.

It is insisted by the defendants’ counsel that no case can be found distinctly holding that a fraudulent transfer of real estate may be set aside without an execution issued.

The following are the leading authorities in our Courts connected with a fraudulent conveyance of real estate:

In Brinckerhoff v. Brown, (4 Johns. Ch. R., 671,) there is nothing but the general language of Chancellor Kent, which the counsel has referred to, which tends to support the proposition that an execution is not necessary. The property in question was personal. No execution bad been taken out, nor judgment recovered, when the bill was filed, but a judgment was obtained during the pendency of the suit. The case offered no ground as to real estate, as the legal remedy was plain and open. In Hendricks v. Robinson, (2 Johns. Ch. R., 286,) the bill was by a judgment creditor, and after execution issued. It was to set aside conveyances of real estate, as well as transfers of personal property. The Chancellor held that the conveyances of the real estate were void, and should be declared fraudulent. The bill was filed in June, 1809. The execution had been issued on the 6th of February, 1809, upon judgments recovered in the month of January, 1808. The conveyances were made in March, 1808. There is nothing to show that the executions had been returned; but there was an allegation in the bill, after the statement of the issuing of the executions, that by reason of the said fraudulent transfers (above stated) the plaintiff could obtain no satisfaction of his judgments. This case, then, involves the proposition,

p. 495

that after execution on a judgment a transfer of real estate may be set aside in equity. It involves also, as I think, the proposition that such execution need not be returned. It tends to negative the proposition that a judgment without execution is sufficient. And when the language of Chancellor Kent is considered, (see p. 296,) used when he is treating of the transfer of the real estate, we are almost authorized to say that he -deemed the issuing of an execution essential.

In Brinckerhoff v. Brown, (6 Johns. Ch. R., 139,) the executions of all the co-plaintiffs, (judgment creditors,) had been returned. The bill was to reach many things besides real property.

The decisions of Chancellor Walworth, upon questions of fraudulent conveyances and transfers, are very numerous. I select that of King v. Wilcox, (11 Paige, 589,) as pertinent to the present inquiry. The complainants had obtained a judgment, and had issued an execution. It is not stated that the execution had been returned, only that Wilcox had no property on which the execution could be levied, except the premises specified in the deed assailed. It was real estate conveyed, and me conveyance was set aside.

The Bank of Orange County v. Fink, (7 Paige, 87,) was a case of an execution taken out, and real estate alone in question. In The Bank of the United States v. Housman, (6 Paige, 527,) the executions had been returned.

It is true that in Clarkson v. Depeyster, (3 Paige, 320,) the Chancellor does say: “That for the purpose of obtaining the rehef sought it was not necessary for the judgment creditor even to sue out execution; that he might have filed his bill in respect of the lien, and to clear the real estate from an incumbrance improperly or fraudulently interposed at any time after the docketing of his judgment.” Yet, in the case, the judgment creditor had issued and had an execution returned, and the creditor by decree had the execution in the hands of the Sheriff. The-latter was a lien from the time of issuing the execution.

The Chancellor refers to 1 Paige, 305, and 4 Johns. Ch. R., 677. The former case (Beck v. Burdett) cannot give support to the proposition; I think its language is hostile to it. The other case (Brinckerhoff v. Brown) does not sustain it.

p. 496

In The Mohawk Bank v. Atwater, (2 Paige, 54,) the complainants had taken out executions on their judgments, under which a sale had been made, and they had purchased the property. They then filed a bill to set aside fraudulent conveyances. The Chancellor does indeed repeat the proposition stated by him in Clarkson v. Depeyster.

With the exception of these dicta of the very learned Chancellors I have mentioned, and the dictum of Assistant Vice-Chancellor Sandfobd in Storm v. Waddell, (2 Sandf. Ch. R. 510,) there is not, I believe, to be found the least authority warranting the proposition that an execution need not be issued, down to the period of the close of the Court of Chancery in our State.

I have gone over numerous cases decided since that time. In the following a conveyance of real estate comes in question, generally connected with transfers of personalty: Nicholson v. Leavitt, (4 Sandf. S. C. R., 253; 2 Seld., 510,) The Chautauque Bank v. White, (2 Seld., 236,) Brigham v. Tillinghast, (3 Kern., 215,) Collomb v. Caldwell, (16 N. Y. R., 484,) Barney v. Griffin, (2 Comst., 365,) a case limited to real estate, and of a bill after execution returned unsatisfied; Crippen v. Hudson, (3 Kern., 161,) Greenwood v. Brodhead, ( 8 Barb., 593 ,) Bishop v. Halsey, ( 3 Abb., 400 ,) Wilson v. Forsyth, ( 24 Barb., 105 .) There is nothing in either of these cases that approaches to a decision of the point contended for by the plaintiff’s counsel. There are a few general expressions scattered through the opinions in its favor, and nothing more.

My conclusion is, that the North American Company v. Graham is not affected by any decisive authority, previous or subsequent, nor by any sound line of legal reasoning; that it announces the true rule; and that the judgment in the present case must be affirmed.

Judgment affirmed., with costs.