Bogart v. Perry

The Chancellor. If a question of notice was material in this case, I should have no hesitation in deciding that Perry, when he took an assignment of Smith’s interest, was chargeable, not only with constructive notice of Hanson’s judgment, by means of the docket of the judgment, but with notice in fact. It does not appear to me, however, that Perry is to be affected by the notice, because Smith had no interest in the land on which the judgment could attach, or the execution operate. When Perry purchased, neither Birdsallj nor his assignee, had performed the contract with Atkinson. There had been not only a default in paying the instalments, but nearly two years had elapsed after the last instalment had been due; no reason appears in the case for this gross default 3 and if Atkinson had insisted on the failure, it is not certain that Birdsall, or his assignee, would have been entitled to a specific performance of the contract. But the mere right in equity, that Smith, as assignee of Birdsall, might have had against Atkinson, under the contract, was not the subject of the judgment and execution, as “ real estate.” No case has gone that length, and though an equity of redemption has been held liable to a sale on a fi.fa., (Waters v. Stewart, 1 Caines’ Cases in Error, 47.,) yet that was in a case in which the mortgagor was still in possession, and before any foreclosure of the mortgage, and on grounds peculiar to the case of a mortgage, in which the mortgagor is regarded, at law, as well as in equity, as the real owner of the land. It is on the same principle, that the interest of the mortgagee, before possession taken on foreclosure, is not subject to sale on execution. (Jackson v. Willard, 4 Johns. [56] Rep. 41.) The provision in our statute of uses, (1 N. R. L. 74.,) rendering lands liable to execution against the cestuy que trust, has no application here; for that provision was from a branch of the English statute of frauds, and it relates only to those fraudulent and covenous trusts, in which the cestuy que use has the whole real beneficial interest, and the trustee only the naked formal legal title. The statute, accordingly, provides, that, on such sales, the land shall be held and enjoyed, “ freed and discharged of all encumbrances of the trustee which provision shows, that the statute cannot apply to this case. If the contract had been fulfilled, so as that Smith had been entitled to a deed,' when the judgment was obtained, and the sale made to Perry, the statute might have applied, and there would have been reason and fitness in the application. But,upon the facts in this case,I cannot perceive any interest in Smith which could be sold under the execution. Perry purchased only an equitable chose in action, and if, from the circumstance of part payment by Birdsall, and of Smith’s possession and improvements, under the implied assent of Atkinson, a specific performance might have been enforced; yet above half of the purchase money was unpaid, and the equitable interest of Smith, in the land, at the time of the judgment, could not have exceeded the proportion between the amount of the original consideration, and the sum actually paid, which was less than half of the purchase money. But judgments and executions at law were not intended by the statute to reach, nor have they been considered in practice as touching, such complicated and delicate interests. There is no more objection to this exemption than to that of choses in action, in general, and it is well known that they are not the subject of sale on execution. There must be either a real estate, or an interest known and recognised at law, or an equitable title within the purview oftheprovision in the statute of uses, to which I have alluded, or an execution at law will not reach it. A judgment at law is not a lien on a [57] mere equitable interest in land, and the execution under it will not pass an interest which a court of law cannot protect n „ &nd, enforce. I am, accordingly, of opinion, that the plaintiff has not entitled himself to call the defendant, Perry, to account for the amount of his sale to Van Tuyl, and that the bill ought to be dismissed with costs. Bill dismissed.