Mulligan v. Baring

By the Court. Brady, J. The only lien accomplished by the attachment and levy thereunder was upon any interest which the plaintiff’s husband had in the premises described in the complaint at the time of the levy, but as she was seized and possessed of them in her own right at that time, and he had [79] not then or at any other time any title to or interest in them, the levy accomplished nothing. The judgment in the attachment proceedings would be against him, and the sale under it would be of his right, title, and interest only. The attachment and levy and lis pendens, which are supposed to constitute the alleged cloud, are prima facie, therefore no real or apparent incumbrance or hindrance to or upon the plaintiff’s title. If the purchaser under such a sale as could take place by or through them, took title from the sheriff, he would, in order to maintain his right against the plaintiff’s- title to the alleged interest of the plaintiff’s husband Which he, acquired, have to show at least the asserted facts upon which the defendants proceeded, viz.: that the conveyance to the plaintiff was made, through her husband’s instrumentality, to defraud his creditors, or that he caused the conveyance to be made to her, having paid the consideration thereof out of his own estate, he being at the time insolvent or indebted to the plaintiff in the judgment under which the sale was had. A thorough examination has not developed any case in which a court has interfered to remove as a cloud upon the title any combination such as presented in this case or any component part of it. The case of Farnham v. Campbell (34 N. Y. 480) is analogous, though not precisely in point. The sheriff, upon an execution issued on a judgment against Edward Farnham, levied and sold premises which had been conveyed by Joel Farnham through Edward to Joel’s wife, Amy Farnham. Joel and wife commenced an action against the sheriff and others, praying that the sheriff might be restrained from giving a certificate of such sale or any deed in pursuance thereof, and that the purchasers might also be restrained from selling their bid, or any right or title which they had acquired by such purchase. The defendant demurred, and succeeded at the special term, general term, and in the court of appeals. It is said, in that case, that all the papers which could be executed to perfect the title under the sheriff’s salq, must necessarily show that the judgment by virtue of which the sale was made, was recovered and docketed long after the period when the defendant Farnham had any title to the premises, and that such proceedings could no more create a, cloud upon the [80] title of the plaintiffs to their land. than they would have cast a cloud over the title of any other citizen of the State to his land, if the defendants, the judgment creditors, had attempted, by virtue of their judgment against Farnham, to sell the real estate of any such citizen.” The same observations apply to this case. The array of the attachment, levy and Us pendens, is not more effective than the levy, sale, and intended certificate of the sheriff in the case (supra), and the latter was not regarded as sufficient to warrant the interference of a court of equity. Where the instrument or matter en pads is prima facie a blot upon the title, it will be removed. If, for example, there is a judgment against the legal holder, who is the apparent but not beneficial owner in fact of the premises and a sale thereunder, the sheriff’s certificate would be a prima facie cloud which a court of equity would remove on the application of the real owner (Lownsbery v. Purdy, 18 N. Y. 515; Siemcm v. Scharck, 29 N. Y. 598), and this, notwithstanding the real owner might have interposed his claims as a defence to an order of ejectment. A court of equity will not entertain a bill to remove a cloud from the title to real estate, where it is apparent that no danger to the title is to be apprehended from the alleged cloud (Cox v. Clift, 2 N. Y. 118; Van Doren v. The Mayor, &c. 9 Paige, 388; Ward v. Dewey, 16 N. Y. 519); and in the case of Van Doren v. The Mayor, the chancellor said : “ That can never be considered a legal cloud which cannot for a moment obstruct the unaided rays of legal science where they are brought to bear upon the supposed obscurity.” It is apparent in this case that no danger is to be apprehended to the title of the plaintiff from the supposed cloud. Assuming all the facts alleged by the plaintiff to be true, it is clear that nothing of her interest in the premises could be in any way affected by the acts complained of. Upon their face they establish no transfer, claim, or lien against her. It is true that it does not appear by the Us pendens or the defendant’s proceedings, that the plaintiff is the owner of the title, but it appears by her deed, and a purchaser from her could not successfully refuse to complete his contract by the mere production of the attachment, levy, and lis pendens. He would be obliged to show that in fact she did [81] not hold the title unincumbered, and that could be done as well without as with the alleged cloud formed by the combination stated. It is not the province of a court of equity to interfere in cases where an act en pais is complained of, and which, without concurring facts and circumstances to be added thereto by proof aliunde, will not establish any interest in or title to the premises described; while, on the other hand, if the thing complained of S& prima fade a cloud, it may be assailed and destroyed, notwithstanding that a defence at law may exist. For these reasons it is quite clear that the report of the referee was right, and the judgment should be affirmed. Whether a purchaser, under any judgment obtained in the defendants’.attachment proceedings could, on the facts disclosed by the defendants, accomplish any disturbance of the plaintiff’s title, it is not necessary to decide, although this opinion assumes, for the purpose of giving the plaintiff* the full benefit of the acts complained of, that he would by purchase be subrogated to the rights of existing creditors when the plaintiff took title* Judgment affirmed.