Hyperlawhypertext legal databasebeta Scudder v. Voorhis 7 N.Y. Super. Ct. 271

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Scudder v. Voorhis

7 N.Y. Super. Ct. 271 5 Sandf. 271 Court N.Y. Super. Ct. Decision date 1851-12-06 English

Delivered by Sandford, J.

Contents

Majority

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Scudder & Manning v. Voorhis, and others.

Headnote

When, by a decree in chancery, the lands of a testator were directed to be sold for the payment of his debts, and other charges, and by a subsequent decretal order, the surplus proceeds arising from such sale, were directed to be paid to three, of the six tenants, in common, entiled to the lands under the will, and the order provided that the shares of these devisees in the remaining lands of the testator, should be charged with the amount thus received by them. Held that such a charge did not create a legal title in, or to any undivided portion of the lands, in favor of such devisees, and was not therefore subject to the lien of a judgment against either of such devisees.
Held, also, That the right, or interest of the devisees, in whose favor such a charge was created, by the decretal order, was neither lands, real estate, tenements, nor chattels real, within the meaning of 2 R. S. 359, § 3, in respect to the lien of judgments.
Held further, That where one, of such devisees, conveyed all his estate, real and personal, to which he was entitled under the will of the testator, as well as his interest in the charge created by the decretal order, and by a special covenant in the deed, the grantee agreed to assume the payment of an existing judgment against the devisee, and such conveyance was subsequently set aside as fraudulent against creditors, the interest of such judgment creditor,, as a beneficiary of the trust created in the conveyance, if it were a trust, was effectually out off»
In such a bill, or in any bill filed to set aside an assignment for the benefit of creditors, it is sufficient to- make the trustee a party defendant».
(Before Oakley, Ch. 5., Sandford and Duer, J.J.)
Nov. 13;
Dec. 6, 1851.
The bill in this cause, was filed in the late court of chancery,, on the 10th of March, 1847. It stated the following facts :— Edward Shaw was entitled to an equal, undivided sixth part of the estate of his grandfather, Robert Robinson, under the will of the latter. In 1830, in pursuance of a decree of the court of chancery, a part of the real estate of Robert Robinson, was directed to be sold for the payment of certain debts and charges, and by a subsequent decretal order, the proceeds of the sale were paid to three of the six tenants, in common, entitled to the lands under the will. The order provided, that the shares of these three devisees, in the remaining lands of the testator, should be charged with the amount thus received by them, which, belonged to, the'other three devisees, with, interest,.
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from, the time it was received. Edward Shaw was one of the three latter devisees, who thus became entitled to a charge upon the shares of the three, who received the entire surplus arising from the sale. On the 13th day of April, 1837, Jotham S. Fountain recovered a judgment in the supreme court, against Shaw, which was docketed on the same day, and no part of .which has been paid or satisfied, This judgment was assigned by Fountain, to the complainant, on the 17th day of October, 1839. On the 26th day of May, 1837, Shaw conveyed to Fanning Albert, all his undivided share and interest, described as being one equal, undivided "sixth part, in the real and personal estate of Robinson, and all his estate, right, interest, claim, and demand therein, subject to Fountain’s judgment, which Albert assumed, and agreed by the deed to pay, as a part of the consideration money. On the 26th of March, 1837, a suit in partition was commenced in the court of chancery, by the three devisees, to whom the surplus had been paid in the suit of 1830, viz., Toney, Robert, and Montague, against the other parties interested in the remaining real estate. Albert was made a defendant, as entitled to all the rights of Edward ShaW, who was not a party to the suit. A reference was made to a master, as to the titles of the parties, and the liens on their shares. He reported, February 8th, 1839, that Albert was seized of one-sixth part of the land, as the grantee of E. Shaw. He then stated the proceedings in 1830, and reported, that Albert, as the representative of E. Shaw, was entitled to be paid $3103 3 with interest, from November 1st, 1837, out of the shares of Toney, Robert, and Montague, in the proceeds which should arise from the sale of the premises in the partition suit. The report then set forth Fountain’s judgment, as due, as also a mortgage, executed by Albert, to A. Voorhis, on his share in Robinson’s lands, dated August 29th, 1837. It also stated that Voorhis had executed a consent to come in, under the decree, for payment of his mortgage.
On this master’s report, a decree was made confirming it, and directing a sale of the remaining real estate. The decree declared that Albert was seized of the one undivided sixth part of the lands in suit; that the shares therein, of Toney, Robert, and Montague, were chargeable with the advance so received by
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them, in the suit of 1830 ; that Albert was entitled to be paid the $3103 03 with interest, out of the shares of those three parties ; and that the master making the sale, was to take that sum and interest, out of their shares, and add it to the share of Albert, as the representative of E. Shaw. The decree further ordered the master to bring the $3103 03, with interest, being $3929 65, into court, and deposit it with the clerk, subject to the future order of the court. The real estate was sold by a master in chancery, in August, 1841, and the sum last mentioned, was brought into court, and deposited with the clerk, as the residue of the share of Albert. Voorhis, with the fraudulent intent (as charged), of defeating Fountain’s judgment, abandoned his mortgage claim against Albert, and procured Shaw to confess a judgment to him, which was docketed in the supreme court, November 10th, 1838. On'the 31st of January, 1839, he filed a judgment creditor’s bill thereon, in the court of chancery, against Shaw and Albert, to set aside as fraudulent against him, Shaw’s deed to Albert, executed in May, 1837. A decree by default, was obtained in that suit, in February, 1839, setting aside the deed on that ground, and directing payment of the judgment. In September, 1841, Voorhis presented a petition to the court of chancery, entitled in both his suit, and the partition suit, stating his judgment and decree, and that the above $3929 65 was paid into court in the latter, and went to the credit of E. Shaw, and was subject to the claims of such of • his judgment creditors, as had obtained decrees against him. An order of the court was thereupon made, referring it to a master, to ascertain what liens there were on that fund, and what creditors’ bills had been filed against Shaw, and their priorities ; and ordering the clerk to pay such liens and claims, as should be reported by the master, with the costs of the respective claimants thereof.
The master reported, September 20th, 1841, that John G-ihon and others, by their bill and decree, had the first lien on the fund in court, dating from December 28th, 1837, when they filed their bill; that Voorhis had the second lien in like manner, amounting to $1987, with interest from November 14th, 1838 ; and that Mortimer De Molte had the third lien in like manner, dating from the 28th February, 1839, these being more than
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exhausted the fund. On the 1st of October, 1841, the clerk of the court paid out the fund, pursuant to the report, to Gihon and- others, Yoorhis, and De Molte. No notice of these proceedings was given to Fountain, or his assignees, and they knew nothing of them till several years thereafter.
The complainants claimed that Fountain’s judgment was a lien upon Shaw’s interest in the estate and property, by him conveyed to Albert, in May, 1887 ; that the $3929 65 paid into court by the master, was part and parcel of the proceeds of that estate on which Fountain’s judgment was, and still is, an existing lien; and that the complainants were entitled to have the amount thereof, with interest, paid out of that fund in preference to Yoorhis and the others before-named. The bill charged that Yoorhis' petition, <fcc., was a fraudulent contrivance to get the fund out of court, and to defeat Fountain’s judgment, which was elder. It prayed for a decree that Yoorhis and the others refund the money received by them-, and that it be distributed to the creditors justly entitled ; or that they pay the Fountain judgment.
The several defendants demurred to the bill for want of equity. The cause was brought to a hearing before Edmonds, J., in the supreme court, who allowed the demurrer, and dismissed the bill with costs. The plaintiffs appealed to the general term of the supreme court, whence the cause was transferred to this court.
R. Manning, for the plaintiffs.
• I. As soon as the plaintiffs were acquainted with the facts, they, on the 10th day of March, 1847, filed their bill of complaint on behalf of themselves and other judgment creditors, having equitable or legal liens on the sum of $3,929 G5, paid into court on the 31st day of August, 1841, by the master, as the residue of the share of Fanning Albert, in the partition suit, subject to the future order of the court, as in the plaintiffs’ bill mentioned, to compel the defendants, who had wrongfully taken the money out of court on the first day of October, 1841, to refund the same to the plaintiffs and those on -whose behalf they sue. To which the defendants severally demurred. And
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the bill charging them with combination and confederacy,, which they have not denied by answer, there are at least twoi grounds upon which these demurrers ought to have been overruled. (1.) The equity of the bill. (2.) On the charge of confederacy.
II. In regard to the alleged want of equity. It is contended that the bill has abundant equity to support it. In Le Roy v. Servis, (2 Caines’ Cases in Error, 181,) it was remarked by Mr. Justice Benson, that “ it is ordinarily premature wholly to dismiss a bill on a demurrer for a want of equity; unless the plaintiff’s case is, from his own showing, radically such that no discovery or proof can possibly make it a proper subject of equitable jurisdiction.” (2 Cond. Eng. Ch. Rep. 429.) And here it may be observed, that upon a demurrer to a bill,, every part of it must be taken to be true. (Peters’ Dig. 341; 2 Wash. C. C. R. 325.)
III. By the deed of the 26th May, (recorded the 27th,) 1837,. and which was executed by Edward Shaw and wife, of the first part, and also by Fanning Albert, of the second part, (both of whom were insolvent at the time, and the plaintiffs have a right to prove it;) the former conveyed to the latter all their estate and interest, both real and personal, under the will of Robert Robinson deceased, subject to (i. e. made liable to) the payment of the mortgage and judgments in the said deed mentioned. And by the special agreement in the deed, Fanning Albert agreed to assume, and thereby did expressly assume the payment of Fountain’s judgment and the other judgments therein specified by names, dates, and amounts, as respectively to be paid by the said Panning Albert as so much of the consideration for the assignment, and therein expressed to be a part of the consideration money, and therefore to be preferred to' any other equity.
IV. And in regard to this equity, a trust was created by the parties for the benefit of Fountain, to the extent of his judgment, and for the other judgment creditors so named in the deed, and Fanning Albert was the trustee. This maxim, I take* to be universal, said the lord chancellor : that wherever persons-agree concerning any particular subject, that, in a court of equity, as against the party himself, &c., raises a trust (1 Ves.
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jun. 477). And so it must have been the intention of the parties to charge the property conveyed with the payment of those debts ; otherwise the transfer was made with the intent to hinder, delay, or defraud Fountain and the other judgment creditors so named and provided for—which converted the grantee into a trustee for the payment of these judgments in preference to any other debts (Ingram v. Pelham, Amb. 153). And in 2 Fonb. 36, (note,) it is said that if a testator, having devised the whole of his estate, will that the devisee pay his debts, it is sufficient to raise a trust for his creditors. And in Hallett v. Hallett, ( 2 Paige 15 ,) it is decided that where land is devised, subject to the payment of legacies, the legatees have a specific lien on the land. This principle of equity must be equally strong where a man grants an estate or a specified property to another, subject to the payment of certain debts as the consideration. And the principle is well settled that where a' trust is created for the benefit of a third person, even without his knowledge, he may afterwards, when it comes to his knowledge, adopt it—and it will over-reach any intervening claim (Barley v. Taylor, 5 Hill, 577 ). Here, then, a trust was created by this deed, and the plaintiffs have a right to avail themselves of it against the defendant. And it is sufficient to sustain their bill (10 John. R. 505; 22 Wend. 529 ; 7 Ves. 323; 1 Vern. 411. Sharpless v. Welsh, 4 Dal. 279 . 1 Ves. jun. 280, 477. 1 Hill, 583 . 2 Bridg. Jud. 234, p. 28. 3 J. R. 71. 10 J. R. 505, 507. 1 Ves. sen. 331. 1 Caines 363 . 4 Bro. Ch. Ca. 64).
x Y. There is another view of the case. The transaction was a sale of all the estate and interest of Shaw and wife under the will. Then Shaw the vendor had. a lien in equity on the estate and interest sold, for the payment of the purchase money, a part of which, by their special agreement in the deed, was to be applied to the payment of Fountain’s judgment, and the other judgments therein mentioned. And viewed in this light, so much of the purchase money and of the lien on the whole property sold, were thereby transferred to Fountain and the other judgment creditors so preferred. And the lien is available against the defendants, who have wrongfully taken out of the court the proceeds of this property, sold in the partition
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suit. And the purchase money due from Fanning Albert, to the plaintiffs for this property, remaining unpaid, they have an equitable right to follow the proceeds into the hands of the defendants (Gardner v. Gardner, 3 Mason's C. C. R. 178; Morton v. Naylor, 1 Hill, 583 , 585; Chapman v. Tanner, 1 Vern. 267; Bond v. Kent, 2 Vern. 281; Yeates v. Groves, 1 Ves. jun. 280; Legard v. Hodges, id. 477; 9 Cowen’s Reports, 318; Fish v. Howland and others, 1 Paige, 20, and 1 Paige, 125; Brown v. Gilman, 4 Wheaton, 255, 292, n.; Mallcreth v. Symmons, 15 Ves. 329, 1 Paige 506 ; Garson v. Green, 1 John. Ch. R. 308; 6 Wend. 77 ; Sharpless v. Welsh, 4 Dal. 279 ; 2 Comst. R. 289; Elliot v. Edwards, 3 Bos. & Pul. 181, and the cases cited and reviewed in Fish v. Howland, 1 Paige, 20; Long on Sales, 150, 151, 199, 200; 3 Sugden on Vendors, 131, pl. 39, 41 (Cam. Ed.)
YI. The bill states that by the decree in partition, Fanning. Albert was entitled to be paid the sum of $3,103 03, with interest from 1st Nov. 1837, which the decree added to his. share, out of the shares of the three devisees in the proceeds to arise from the sale of the premises in partition ; and that Fountain’s judgment was a lien thereon, and that the master conducting the sale should bring the money into court. And the bill charges that the judgment was a just lien and charge on the estate, interest and property of Edward Shaw and wife so conveyed to Fanning Albert; and that the sum of $3,929 65 so paid into court by the said master, was a part of said estate so conveyed, and by the decree declared to belong to Fanning Albert. And this part of said bill must be taken to be true, as well as every other part.
YII. By reason of a previous sale of a part of the testator’s, real estate, for the payment of his debts, and the surplus being paid, by the order of the court, to three of the devisees, and the one-half thereof charged on their shares in the residue, Edward Shaw became entitled, in equity, for equality of partition, to-more than a sixth part of the proceeds to arise from a future sale of such residue. And he sold or assigned this interest to Fanning Albert. And this charge and interest in the residue was in its nature an inheritable interest in him. It was not founded on contract. He had no personal claim or demand on
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the three devisees, who had received the surplus. Nor did they become his debtors on that account. It was an equitable charge on their shares in the residue. It was not a chose in action, but unchanged real estate, or an equitable interest therein, and was ordered to be paid into court by reason of the plaintiffs' and other encumbrances on it. And the act provides for the discharge of all incumbrances.
VIII. It appears by the bill that the defendants had no right to the fund, but that the plaintiffs had. On the 26th Oct. 1887, the bill for the partition and division of the estate of Robert Robinson, deceased, was filed by certain of the devisees against Fanning Albert and others ; and on the 8th February, 1849, the Master made the report on title and incumbrances, and for a sale : upon which a decretal order for the sale was made, which was docketed on the 13th day of May, 1841, and on the 31st day of August, 1841, the sum of $3,929 65 was paid into court, by the Master, as belonging to Fanning Albert. And in view to those proceedings, the defendant, Abraham Voorhis, notwithstanding he had obtained from Fanning Albert a mortgage, dated the 29th day of August, 1837, for the payment of $2,500, and interest on the 1st Sept. 1838, which he presented to the Master as an incumbrance, and on which the Master allowed $1,300 for principal; but he afterwards abandoned it; and on the 10th day of November, 1838, fraudulently concerted with and obtained, without any consideration from Edmund Shaw, his bond and warrant of attorney to enter up judgment against him by confession for $4,000 debt, besides costs; upon which he entered up judgment on the 14th of the same month, and on that judgment he, on the 3lst Jan. 1839, filed a bill against ■said Edward Shaw and Fanning Albert, to set aside the before mentioned deed to Fanning Albert, (under which he had previously taken from him the before mentioned mortgage,) as fraudulent and void as to his said judgment; and, on the 27th day of February following, he entered a decree by default against Edward Shaw and Fanning Albert, setting aside the before mentioned deed as fraudulent and void as to his said judgment.
And then, on the footing of that decree, and the decree in partition, the said Abraham Voorhis, on the 2d day of Sept.
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1841, by án ex parte petition, falsely stating, that this money had been paid into court to the credit of Edward Shaw, and that it belonged to him, obtained an order of reference to a Master, to ascertain what liens or claims there were upon the said $3,929 65, and also what bills by judgment creditors had been filed against him and their priorities ; and the Master, without summoning the plaintiffs or any one interested, made a report in favor of the defendants, who, on the first day of October, 1841, took the money out of court; all which proceedings were unknown to the plaintiffs, and were fraudulent and void, as to them and the other judgment creditors, on whose behalf they sue; none of whom were made parties, nor notified of the defendants’ proceedings—nor are they affected by them. For a decree or order obtained without making parties—those whose rights are affected—is fraudulent and void as to those parties. (1 Scho. and Lef. 380; 1 J. C. R. 463; 1 Dows' Rep. 18.)
IX. And although the order he so obtained required the Master to summon all parties and persons before him, whom he might suppose to have any interest in, or claim upon, the said fund in court; yet neither the plaintiffs, nor any other person or persons, whose liens thereon had been ascertained and declared by the Master, in his report on title and liens in the partition suit, were summoned by the Master on the said reference; and instead of determining the priorities by the record, he took the oath of the said Edward Shaw for proof, which was inadmissible ; and besides, said Abraham Voorhis had no right to proceed by petition in the partition suit, to which he was not a party, nor interested therein. (Codwise v. Gelston, 10 John. R. 507.)
X. The defendants did not acquire a lien on the fund in court by filing their creditor bills; for that was not paid into court until two or three years afterwards. The court does not sell real estate on such bills, and they do not affect after acquired personal property. (2 Paige, 333.) By the decree in partition, the fund belonged to Fanning Albert, but was liable to the plaintiffs’ judgment, either as real or personal estate; and it does not appear, that the defendants issued executions on their judgments, and that they had been returned nulla bana. Which
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fact, must be distinctly alleged, in order to support a creditor’s bill. (1 Paige, 638.)
XI. The bill charges the defendants with combination and confederacy in their proceedings, and with wrongfully taking the fund out of court, to defeat the plaintiffs’ claim, which they have not denied by answer, and therefore the demurrers must be overruled. (Powell v. Arderne & Chevall, 1 Vern. 416; Hester v. Western, 1 Vern. 463; 2 Mad. Ch. 234, 1st Am. Ed.; 1 Harr. Ch. Pra. 289; Wyatt’s Pra. Reg. 169; Fellows v. Fellows, 4 Cowen’s Rep, 688, 690; Coop. Eq. Pl. 182; Mitf. Pl. 147; 2 Cond. Eng. Ch. R. 429; 2 Caines’ Cases in Error, 344.)
XII. The opinion seems to be formed upon a mistake as to the facts of the case as well as the law. And among other things assumed, it is said that if Fountain had desired the payment of his judgment, he could have obtained it by virtue of his lien upon other property of Shaw’s, and that he lost that remedy by allowing the real estate to be sold in partition, and not claiming satisfaction out of the avails; whereas those avails were exhausted by a mortgage to the North River Insurance Co., which was prior to Fountain’s judgment; and it can hardly be said that he has slept upon his rights, until other parties have been allowed to obtain a superior equity to his.
XIII. That as it plainly appears by the bill, that the fund was wrongfully taken out of the court by the defendants, who were not entitled to it, the court will reverse the decree appealed from, and make a decree compelling the defendants to refund the money, with interest, to the plaintiffs, and those on whose behalf they sue, without liberty to answer the bill. And that they pay to the plaintiffs, full costs on each demurrer; and that the defendant Yoorhis restore to the plaintiffs, the costs paid to him, with interest. (3 Cond. Eng. Ch. R. 795, 803; 10 J. R. 507. As to costs, 2 Caines Ca. in Error, 182,183.)
C. Edwards, for the defendant, Voorhis.
I. The plaintiffs have no standing. No fi.fa. or sci. fa. has been issued: (2 R. S. 576, § 1; Parmelee v. Egan, 7 Paige’s C. R. 610; McElwaine v. Willis, 9 Wend. 548 .)
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II. If these plaintiffs had any right, it was (as they indeed insist in fos. 10, 35, 36 of bill) in the suits of John Torrey and wife, and others, v. William Shaw et al. and William Shaw and others, v. Jane Shaw, and others. And a simple petition would have disposed of the whole matter.
III. These plaintiffs could not file such a bill on behalf of themselves “ and all other judgment creditors”: for they have issued no unsatisfied fi. fa.: (Burney v. Morgan, 1 S. & S. 358; People v. Tatem, 1 Ired. Eq. 414 ; Brown v. Long, Ib. 190; Stone v. Manning, 2 Scammons’ R. 530; Hammond v. Same, 2 Bland 306 , 344—5; Ellicott v. Welsh, Ib. 242; Anderson v. Bradford, 5 J. J. Marsh. 69 , 73; Wickliffes v. Lyons, Ib. 84, 87; Parmlee v. Egan, 7 Paige’s C. R. 610.) Nor could it reach real estate : (Congden v. Lee, 3 Edward’s V. C. Rep. 304.)
IY. These plaintiffs do not show that this judgment was in their assignor, Jotham Fountain, at the time of the assignment to them ; nor, what was the consideration of such assignment, nor any of its trusts—nothing therein to show their right to it, nor state any thing was due on it, or now is.
V. And laying aside all other points, the bill clearly shows that the money which these plaintiffs attempt to get (with interest) never attached to the judgment obtained by their assignor, Fountain, and they never could have received it by virtue of any lien. The money had not the character of land : (2 R. S. 359, § 3; People v. Haskins, 7 Wend. 464 .)
VI. Delay is here to be taken against these plaintiffs. The judgment was in 1837 ; the assignment to plaintiffs, in October, 1839 ; Voorhis received money from the court, in October, 1841; and the present bill was filed in 1847. (Storms v. Ruggles, 1 Clark 148.)
VII. Shaw should have been made a party, and Albert also.
VIII. Any loose or general allegation of fraud in the bill is but a conclusion of law ; while there is nothing in the pleading but what may well be covered, and is sufficiently covered by the demurrer : (Bart. Eq. 43; Story's Eq. Pl. § 856.)
IX. The appeal should be dismissed, with costs.
E. Ketchum, for the defendants Gihon and Nicholson.
I. The plaintiffs have never issued an execution upon their
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judgment. They are not, therefore, in a condition to enforce payment, as judgment creditors, out of any personal assets or choses in action of their debtor Shaw. (7 Paige, 614, 9 Wend. 548 .) All that is said about the fraud of Voorhis may therefore be laid out of view. No matter how fraudulent his judgment or his acts, the plaintiffs are not in an attitude to question them unless they, the plaintiffs, had a prior lien upon this fund ; and if they had such lien, they are entitled to the fund, howsoever pure and honest his conduct may have been.. It is a mere question of priority in the acquisition of liens.
II. As mere judgment creditors of Edward Shaw, laying out of view for the present the deed to Albert, the plaintiffs had no lien except upon the lands, tenements, real estate, and chattels real of Edward Shaw, at the docketing of the judgment, or subsequently acquired. (2 R. S. 359, sec. 3.) No interest in lands is bound by a judgment which is not a specific physical thing ; for instance, an undivided or other share, which may be entered upon and possessed, or a rent reserved with right of distress. ( 7 Wend. 764 .) Edward Shaw’s undivided sixth part of the lands, unsold at the time of the Fountain judgment,’ was bound by it; but nothing else. Certain of Ms land had been previously sold, and the proceeds being money or personal estate belonging to Edward Shaw, had been lent to his co-devisees, and their shares charged or encumbered with a liability for the repayment thereof with interest. The. form of a decree in equity was used ; but the transaction was in substance precisely the same as if he had taken a mortgage on their shares or had docketed a judgment or decree against them for the amount. Any of these would have been a charge upon their land. But it would have been the personal estate of Edward Shaw—a mere chose in action, and as such, not bound by the judgment against him, or capable of being reached in satisfaction of his debts except by what is called a nulla bona bill, or some of the new and peculiar methods by which interests not capable of being reached by execution, may be subjected to the payment of debts.
III. The conveyance to Fanning Albert, admitting it to be valid, did not change or extend the lien of the Fountain judgment. We need not inquire into this question, as it respects
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the unsold land, for that was clearly bound by the judgment above, and there is no complaint in the present bill that that lien has been interfered with. The question is, did this conveyance create a lien in favor of Fountain on this debt due to Edward Shaw from his co-devisees ? We answer in the negative for several reasons. (I.) On this specific fund, it could not be a lien, for most clearly, it did not pass to Albert by the terms of the conveyance. E. Shaw sold to Albert the undivided interest to which he was then entitled. The fund in question had been divided, set apart to him in severalty, and invested at interest in his name and for his own several and separate account. This is very manifest. The instrument is the deed of both parties, and no favor to either party, is to liberalize the construction. Parties, it is true, have acted on a different idea, but that is not material. (2.) But suppose this and other personal estate passed to Fanning Albert by the conveyance, and that although there was no privity between the creditor Fountain, and Albert ( 24 Wend. 260 ), still, that Albert became bound unto the creditor, Fountain, to pay him according to his assumption, this would not give Fountain a lien on the specific personal property or interests conveyed. When a man buys personal property from another, and instead of paying the cash down, promises to pay him, a lien is not thereby created on the personal property conveyed. If a lien upon the property conveyed would not arise in favor of the vendor himself, how can it be supposed to arise in favor of his creditor to whom he has directed the payment to be made ? In cases of sales of real estate, an equitable lien for the consideration money, is allowed so long as the property remains unsold in the hands of the vendee. But this is confined to real estate, and the property in question 'is merely personal estate. If one grants personal property to A, in trust, to convert it into cash and apply the proceeds to the payment of his debts, the creditors are, in contemplation of equity, the real grantees, and have an actual lien upon, and interest in the proceeds. But such is not the case where one sells his horse and takes pay in a note made payable to his own creditor. In such a case the property is changed, the horse becomes the absolute and unfettered estate of the purchaser, and he becomes person
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ally liable to the payee of the note for the money. Consequently, if the conveyance to F. Albert was fraudulent and void, no one acquired an interest under it, for conveyances to defraud creditors are void in toto. If it was valid, the whole interest in the fund passed to and vested in Albert; and even if the present defendants had unjustly recovered it against him, the plaintiffs cannot, by showing that Albert is personally bound to pay their judgment, reach this fund.
IV. The whole question turns upon the nature of the fund claimed, i. e. whether real or personal estate. If the former, it was bound by the judgment; if the latter, it has been properly applied to the payment of the defendants’ demands, they alone having acquired a lien on that species of property. The master’s having been directed to add this personal fund to the other personal funds expected to be acquired by a sale and conversion into cash of E. Shaw’s remaining interest in the unsold lands, cannot change the character of the fund.
M. De Molte, respondent, in person.
I. Neither the conveyance by Shaw to Albert, nor the covenant, by Albert, to discharge Fountain’s judgment, can affect the rights of this defendant. (1st.) This defendant does not hold under, but adversely to, the conveyance by Shaw. (2d.) It was set aside by the court as fraudulent, and void. (3d.) If not void, still it did not convey, or assign the fund in question. (4th.) The fund having been applied on the debt of a Iona fide creditor, cannot be followed by the plaintiffs as against this defendant. (Cook v. Smith, 3 Sand. Ch. R. 333; Parmalee v. Egan, 7 Paige, 414.)
II. The judgment of Fountain, was not in any wise a lien on the fund in question. (Jackson v. Chapin, 5 Cow. 485 .) (1st.) The statute enumerates on what judgments are liens. (2 Rev. Stat. p. 454, sec. 6, 3d Ed.) (2.) At common law it would not have been a lien. (3.) It would not have been a lien even on an estate for years, or upon a mere equity. (Vredenbergh v. Morris, 1 J. Cas. 224; Jackson v. Chapin, 5 Cow. 485 .) (4.) A lien could only have been acquired on personal property in Shaw’s possession by an actual levying of an execution. (Hendrick v. Robinson, 2 J. Ch. R. 312.)
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III. If the judgment were a lien, the bill does not show that the plaintiffs are entitled to relief. (1.) It does not show that the judgment was in the assignor, at the time of his assigning his estate to the plaintiffs, or that it is unsatisfied. (2.) It does not show the consideration for the assignment or the nature of the trusts. (3.) It did not vest in the assignees any title to the fund in question, as against defendants. (Corning v. White, 2 Paige, 567.)
IV. The fund was simply a chose in action. (2 Blk. Com. 389, 397; 1 Chitty’s Prac. 99; 2 Kent’s Com. 351.)
V. And being such, and in the situation in which it was, it could only be reached, in, or by the aid of, the court of chancery. (Donoven v. Finn, 1 Hop. Ch. R. 79 ; Buford v. Buford, 1 Bibbs. R. 306 ; Bayard v. Hofman, 4 Johns. Ch. R. 454; Adair v. Winchester, 7 Gill. & J. 114.)
VI. The plaintiffs are not in a position to claim the aid of a court of equity. They have not exhausted their legal remedy. Before they can do so an execution must have been issued and returned nulla bona. There is no case reported in which the court of chancery has held' differently, even whore the chose was in the creditors’ hands, and this rule has been repeatedly recognised. (Clarkson v. De Peyster, 3 Paige, 320; Parmalee v. Egan, 7 id. 614 ; Cook v. Smith, 3 Sand. Ch. R. 338; Ellingwood v. Stevenson, 4 id. 367; Rider v. Mason, 3 id. 351.) In the following cases it was expressly so held. (Hendrick v. Robinson, 2 J. Ch. R. 297; Brinkerhoff v. Brown, 4 J. Ch. R. 676; Wheeler v. Herman, (and cases cited) 3 Sand. Ch. R. 597; McDermutt v. Strong, 4 Johns. Ch. 687 .)
VII. The defendants have acquired superior rights to any the plaintiffs exhibit by their bill. • (1.) An execution creditor will be aided in equity in maintaining his priority over all others. (McDermutt v. Strong, 4 J. Ch. R. 690; Falconer v. Freeman, 4 Sand. Ch. R. 567.) (2.) Creditors’ bills alone are liens on a fund in equity or chose in action. (3.) The fund was properly distributed according to the priority of the creditors’ suits. (Corning v. White, 2 Paige, 568; Haydan v. Bucklin, 9 Paige, 514; Green v. Burnham, 3 Sand. Ch. R. 110.)
VIII. The bill does not show any excuse for the delay of the plaintiffs, on account of which this court would hesitate to dis
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turb the distribution of the fund aforesaid, even if the plaintiffs had equitable rights, (fo. 58, 59.)
IX. Edward Shaw should have been made a party to, the bill.
X. The appeal should be dismissed with costs.

By the Court.

The fund in controversy, grows out of the charge made upon the interest of Toney, Robert, and Montague, in the remaining undivided lands of R. Robinson, in favor of Edward Shaw. Unless Fountain’s judgment became a lien, upon that charge or interest, the complainants have no right to the fund, whatever may be the fact, in respect to the defendants. Fountain’s lien, if he had any, was acquired by the docketing of his judgment. He has never issued any execution, nor filed a creditor’s bill. The lien of judgments is given by statute, which provides that they “ shall bind, and be a charge upon the lands, tenements, real estate, and chattels real,” of the judgment debtor, which he may have, at the time of docketing the judgment, or at any time afterwards ; and such real estate, and chattels real, shall be subject to be sold upon execution, to be issued upon such judgment. (2 R. J. 359, § 3.)

The question is, therefore, narrowed down to this—Was the right or interest, which Edward Shaw had in the undivided shares of Toney, Robert, and Montague, consequent upon the proceedings in 1830, either land, real estate, or tenement, or a chattel real ? The complainants insist that it was real estate ; the defendants, that it was a mere pecuniary charge upon the land. Let this be tested by the supposition, that, instead of a sale, an actual partition had been ordered in the partition suit commenced in 1837. In what manner could this right or interest have been awarded to E. Shaw? We think manifestly, it could have been awarded only by charging it in equal proportions on the shares, in severalty, of the three parties, by whom it was payable. Taken in connexion with the decree in the chancery suit of 1830, it would, in effect, have been so much awarded to Shaw, for equality of partition, as between him and those three parties. The decree for an actual partition would necessarily declare the rights of the parties substantially,

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as it was done by the decree made in the partition suit of 1837. It would adjudge Albert, as the grantee of Shaw, to be entitled to one undivided sixth of the lands, and to a charge upon three other undivided sixths of the sum of $3103 03, with interest, &c., and the directions to the commissioners would correspond with this adjudication. Any attempt to declare Albert to be entitled to one sixth of the land, and also to a further undivided interest, in three other sixths, to the extent which the sum of $3103 03, with interest, bore, at the time of the partition, to the value of such other three sixths, and to direct a partition accordingly, would be futile and impracticable. The provision in the decree, which created this interest, made it in terms, a charge upon the remaining lands, and not a legal title in, or to any undivided portion of the lands, and it is plain, no other sensible form could have been adopted.

Again, suppose that an execution had been issued upon Fountain’s judgment, and the sheriff had proceeded, by virtue of it, to sell Shaw’s right, title, and interest, in the lands of his grandfather ? In what manner, and by what description would he sell the right, or interest, in question, and how could the purchaser obtain possession of it, under the sheriff’s deed? It-is sufficient to ask the question, to show its impracticability. The sheriff could sell and convey Shaw’s undivided sixth, but the interest, to the extent of the $3103 03, he could no more sell, than he could'a mortgage of the same amount, on the same three sixths. It was a mere right or equity, resting in action, against the three sixth partsi It was therefore neither lands, tenements, nor real estate, so as to be subject to the lien of a judgment.

• It is made a point by the complainants, that by the conveyance from Shaw to Albert, a trust in equity was created, for the payment of Fountain’s judgment. Also, that if regarded as a sale, Shaw had a lien in equity on ‘ the estate and interest sold, for the payment of the purchase money, of which this judgment was a part, and so much of the purchase money, and such lien for its payment, were thereby transferred in equity, to Fountain.

The answer to the first proposition, assuming that such a trust existed, is, that the conveyance creating it, was set aside as

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fraudulent and void, as against the defendants in this suit, the creditors of Shaw. Although Fountain were not made a party to the suits in which this was decreed, his interest as a beneficiary of the trust, was thereby effectually cut off; it being sufficient in this state, to make the trustee a party, for the purpose of avoiding an assignment to him, for the benefit of creditors.

As to the lien for the purchase money, Shaw, the vendor, was a party defendant in the suits for setting aside the conveyance ; and even if there were an equity, as between him and Fountain, which would entitle the latter to claim the benefit of such.lien, it was not such an equity that strangers were bound to notice, and in suits by them, Shaw sufficiently represented the entire lien. In truth, this supposed lien in favor of Fountain, through Shaw’s lien for the purchase money, was of no moment, so long as Fountain had a lien at law on the undivided sixth, by virtue of his judgment, and could speedily have acquired a perfect lien in equity, on Shaw’s interest, or charge upon the three sixths, by the issuing and return of an execution, and the filing of a bill in chancery.

It is unnecessary for us to examine the regularity of the defendants’ proceedings, so far as their right to the fund is concerned, because the complainants failing to show any title to it, have no right to impeach those proceedings. In reference to the question of costs, however, which are in our discretion, we can refer to them. We think that the omission of the solicitor for Voorhis, to notify Fountain or the complainants, of the application to the court, and the reference through which the defendants obtained the fund, was quite inexcusable. Voorhis is chargeable with actual notice, by what occurred before the master, on the reference as to liens in the partition suit, that Fountain claimed a lien by his judgment on all of Shaw’s interests in the real estate ; and that the fund in court was paid in as the property of Albert, and not as the property of Shaw, as was in effect stated in the application. If the notice had been given to Fountain, the questions which have been litigated at so much expense in this suit, would have been determined ten years ago, at a trifling cost, upon the reference then ordered before the master. For this reason, although we affirm the decree made in

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the supreme court, dismissing the bill, we shall give no costs to the defendants.

Decree affirmed,, without costs.

Cases cited