Wall v. Mason

Chapman, C. J. The original bill in favor of Joseph Wall against John Mason and Joseph Thayer, was brought to establish a right of subrogation to the title of the defendant Thayer' in certain property which Thayer held in mortgage. It was held that the plaintiff Lynch ought to be made a party, because she had set up a claim to share with Wall the right of subrogation. Having been brought in, she brings this cross bill for the purpose of establishing her right. The plaintiff contends that she was a creditor of Thomas Wall, and that his conveyance to Joseph was fraudulent as to creditors. On the 18th of December 1858, a short time after the conveyance, she attached his interest in the land. Thomas went into insolvency; his assignee prosecuted the plaintiff’s action to judgment for the benefit of creditors under the statute; and the interest of Thomas, subject to Rugg’s mortgage, was sold to the plaintiff on execution April 13, 1861. We have to consider whether the plaintiff, by virtue of these proceedings, acquired a right to share with Joseph in the right of subrogation which had accrued to him on the 24th of February 1860, by virtue of the levy of Thayer’s execution. The right of a creditor to take land on execution after it has been fraudulently conveyed by. bis debtor is established and regulated by statute; but such right is nowhere extended beyond an interest in the land itself. If Joseph Wall had made a prior conveyance of the land itself to an innocent purchaser, and thereby defeated the attachment, there is no provisir n of the statutes, by which, in consequence of the attachment and levy, the creditor would become entitled to a moiety of the money he received for it; or if Thayer had immediately yielded to Joseph’s claim of subrogation, and transferred his mortgage to him, and he had collected the money, no ground is stated upon which the plaintiff could have recovered a moiety of it from Joseph. [325] As the case stands, she has attached the land as a creditor of Thomas, and, after judgment against him, has purchased what she claims to be his interest, on the execution. But she has obtained no title, because Thomas had no title. When she took her deed, the land was held adversely to Thomas by Thayer under a better title, by her own showing. She also contends that her attachment was valid as against Joseph, because his-deed was not recorded and she had no notice of the conveyance. But this is immaterial, because it appears by her bill that Thayer held adversely by a better title. Her claim to subrogation is not strengthened by this fact. Her position is unlike that of Joseph, who was in possession, claiming title under deeds, when the land was taken from him by Thayer. He had something which could be the basis of a right of subrogation; but she has. nothing, for the levy of her execution was a nullity in respect to the land, and a right of subrogation must arise from an actual title to the property taken by Thayer. Nor is she aided by the title of the assignee, on the ground that the conveyance of Thomas to Joseph was fraudulent as against the insolvent laws. It is admitted, in her argument, that the conveyance of Thomas to Joseph was sufficient to prevent the estate from coming to the assignee on that ground, being nearly two years prior to the assignment. Therefore, if she were to'amend her bill as she proposes, by alleging that she became the owner of all the interest of the assignee before the sale of the equity, it would not aid her. Cross bill dismissed, with costs.