The Chancellor. The principal ground of demurrer stated by the"defendant, is, that the complainants’ bill is multifarious in joining a claim due to J. C. Clarkson on his judgment, with the claim of the other complainants, M. Clarkson and wife, for the costs due them on the decree. I think the •defendant’s counsel is under a misapprehension in supposing there is no part of the relief, sought by this bill, in which all the complainants have a common interest.
So far as the bill seeks relief against the property and choses in action or equitable interests of the defendant De Peyster, which are beyond the reach of execution at law, the creditors under the decree of this court have no common interest with J. C. Clarkson; inasmuch as their execution has not been returned unsatisfied.
I have no doubt, however, that a creditor, by a decree in chancery, upon the return of his execution unsatisfied, is entitled to the same relief, against the equitable rights and property of his debtor, as a creditor by a judgment at law.
Even if the revised statutes were to be considered as having introduced a new remedy in this respect, this court, upon the equity of the statute, and by analogy, would extend the remedy to a debt 322 liquidated by a decree; and would place it upon the footing of, equality with a judgment.
The equity of M. Clarkson and wife in this case, however, does not depend upon that principle ; and they probably have no claim to relief in this suit as against property of De Peyster -which is not a proper subject of levy and sale on an execution.
To obtain an equitable lien upon that species of property, the plaintiff or complainant in the former suit at law, or in this court, must have exhausted his remedy in that suit or proceeding, by a return of his execution against the property of the defendant unsatisfied. The principal object of the bill in this case, however, appears to be to clear the real estate of De Peyster from the $20,000 mortgage to Beekman, which is alleged to be merely colorable and to have been given without consideration.
Although there is no specific prayer to that effect, yet if the case made by the bill entitles the complainants to such relief, it may be granted under the general prayer for further or other relief. For the purpose of obtaining such relief, it was not necessary for the judgment creditor even to sue out an execution. But he might have filed his bill in respect to his lien, and to clear the real estate from an incumbrance improperly or fraudulently interposed, at any time after the docketing of his judgment.
(1 Atkins. on Conv. 518. 1 Paiges Rep. 305. 4 John. Ch. Rep. 677.) The other complainants, who claim under the decree of this court, have also proceeded far enough, upon their decree for the costs, to obtain a lien on the real estate ; and of course to entitle them to come here to clear the real estate of that mortgage. By the common law, an execution did not issue out of the court of chancery against the property of the defendant.
A decree was therefore not binding upon real estate of the defendant, except such real estate as was the subject of litigation in the suit, or was directly affected by the decree.
But the statute of this state, (1 R. L. of 1813, p. 487,) which authorized the issuing of an execution against the lands and goods of a defendant in chancery, gave a lien upon the property, except as against bona fide purchasers without notice, from the time of the issuing the execution, the same as upon an execution against the goods of a defendant at common law.
The lien upon the land, as the defendants in this case, under the chance 323 ry execution, upon the facts stated in the bill attached at the time of the delivery of the execution to the sheriE The complainants therefore have a common right to ask the aid of this court to remove the mortgage from the estate of De Peyster, wliich deters purchasers from bidding upon the property, and thus prevents the complainants from enforcing their respective liens. In the case of Brinckerhoof v. Brown, (6 John. Ch.
Rep. 139,) this court decided that diEerent creditors having a common, although not a joint interest, might unite in a bill for such a purpose. One of the complainants whose execution has been actually returned unsatisfied, may be entitled to still further relief against one of the defendants.
But that forms no objection to a joinder of all these complainants for the purpose of obtaining the relief to which they are all entitled, as against both defendants ; and is not a sufficient ground of demurrer to the whole bill.
If one creditor, by a decree, and another by a judgment, have acquired liens which entitle them to similar relief against an act of the defendant, which is a common injury to both, I see no greater objection to their joining in ohe suit, than if both creditors had acquired similar rights under judgments of the same or diEerent courts of law. The demurrer must be overruled, with costs; and the defendant is to have forty days to put in his answer.
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