McCartney v. Bostwick

By the Court, E. Darwin Smith, J. The case of Garfield v. Hatmaker (15 N. Y. Rep. 475) decides that where a grant for a valuable consideration is made to one person and the consideration therefor is paid by another, no interest, legal or equitable vests in or results to, the person paying the consideration, upon which a judgment and execution can attach. And [394] it also decides that the trust which, under sec. 52, art. 2d, part 2, chap. 1 of the revised statutes, entitled “ Of uses and trusts,” (1 R. S. 728,) in such cases, where a fraudulent intent is not disproved, “results in favor of the creditors of the party ' paying such consideration-, to the extent that may he necessary to satisfy their just demands,” is a trust which can only he enforced in equity. The only question which remains in this case is whether a creditor at large can institute such a suit in equity before the recovery of a judgment in our courts and the return of an execution issued thereon unsatisfied. The plaintiffs have recovered a judgment upon their demands, in the state of Missouri; but that judgment is of no force here, except as a conclusive adjudication which precludes an inquiry into the merits of the original claim of the plaintiffs. Before it can be enforced here the plaintiffs must sue it over and recover a judgment in our courts. The remedy in the courts of equity in this state to enforce a judgment against equitable property or interests, dan only be resorted to after the remedy at law upon the judgment is duly exhausted by the return of an execution thereon unsatisfied. (2 John. Ch. Rep. 144. Wiggins v. Armstrong, Id. 283. 4 id. 671. 3 Barb. Ch. Rep. 46.) The doctrine of these cases has been reaffirmed since the code, in Greenwood et al. v. Broadhead et al. (8 Barb. 593,) and in Crippen v. Hudson, (3 Kern. 161.) Before the return of an execution, suits in equity have been and may be instituted to remove fraudulent incumbrances which obstruct the collection of judgments at law. But in no case, that I am aware of, have suits in equity been maintained to reach equitable assets, or obtain payment of judgments, until the remedy at law had been duly exhausted. It is true, in this case, that a judgment recovered in this state upon the plaintiffs’ demands will not be a lien upon the premises described in this complaint, according to the decision in the case of Garfield v. Hatmaker, (supra,) but it is nevertheless essential to establish that the plaintiffs are creditors, under the statute, of the defendant Albion M. Bostwick; and [395] the return of an execution unsatisfied is essential to establish the fact that the plaintiffs have exhausted their remedy at law and that the defendant has not real or personal property sufficient to satisfy such judgment, subject to levy and sale upon execution. I think the decision at special term was correct, and that the judgment should be affirmed. [Monroe General Term, March 5, 1860. Judgment affirmed. Welles, Johnson and Smith, Justices.]