Dorr v. Shaw

The Chancellor. This case presents complicated relations ; but it may be illustrated in an easy manner. The defendant holds a judgment against A. and B. binding upon seventy-two acres of land owned by A., and thirty acres of land owned by B. It does not appear whether A. and B. were both principal debtors. They were father and son, and the pleadings are silent as to the origin of the judgment debt. The plaintiff is assignee of a younger judgment against A. only, and binding on the seventy-two acres. It does not appear when the plaintiff became such assignee. The bill only states, that he took an assignment of the judgment before a sale upon execution under it, and which sale is stated to have been in May, 1817. The instrument of assignment bears date in October, 1816, but the time of execution is not proved. The defendant purchased the thirty acres from a person who had purchased from B., and his purchase is stated to have been in Jamuary, 1817; and it is further stated, that at the sale, the plaintiff was informed of that purchase by the defendant, and that the plaintiff, nevertheless, purchased in the seventy-two acres, upon the judgment and execution which he then owned. It appears, then, that the defendant, as owner of the elder judgment, has purchased in the thirty acres on which his judgment originally attached, and the plaintiff, as owner of the junior judgment, has purchased in the seventy-two acres [20] bound by his judgment, towards satisfaction of his execution. The defendant is now pursuing an execution, under his elder judgment, against the seventy-two acres, in order to satisfy the balance due thereon ; and the plaintiff seeks to prevent it, by requiring that the defendant should satisfy his execution out of the thirty acres, and which amounts to the same thing as to require the defendant to abandon his execution. Is this one of the cases in which the court will compel the elder creditor to apply first to the thirty acres, or the fund not reached by the younger judgment ? I am of opinion that it is not. If both judgments had been against David Stafford only, the rule that the prior creditor must be thrown first on the fund not reached by the second judgment, might have applied. But here we have no means of knowing whether A. ór B. ought to pay the debt; and it might be very unjust, as between those two original debtors, if the court should interfere, and charge the debt upon one of them, instead of the other. They are not before the court, and we have nothing in the case to guide us in making a selection between them. The consequence is, that we cannot interfere in the case. The doctrine in a case of this kind was very clearly laid down by Lord Eldon, in ex parte Kendal. (17 Ves. 520.)- “ We have gone this length,” says the Lord Chancellor, “ if A. has a right to go upon two funds,-and B. upon one, having both the same debtor, and the funds are the property of the same person, A. shall take payment from that fund to which he can resort exclusively, so that both may be paid. But it was never said, that if I have a demand against A. and B., that a creditor of B. shall compel-me to go against A., without more. If I have a demand against both, the creditors of B. have no right to compel me to seek payment from A'., if not founded in some equity, giving B. for his [21] own sake, as if he was surety, &sc., a right to compel me to seek payment of A. It must be established, that it is just and equitable that A. ought to pay, in the first instance, or there is no equity to compel a man to go against A., who has resort to both funds.” Bill dismissed, without costs.