Schlesinger v. Sherman

Gray, C. J. This bill is founded on that clause of the Gen. Sts. c. 113, § 2, which confers upon this court jurisdiction in equity of “ bills by creditors to reach and apply, in payment of a debt, any property, right, title or interest, legal or equitable, of a debtor, within this state, which cannot be come at to be attached or taken on execution in a suit- at law against such debtor.” The equitable jurisdiction conferred by this statute, and invoked in the bill, does not depend upon the nature of the plaintiff’s debt or cause of action, but upon the existence of some property or right which cannot be come at to be attached or taken on execution at law, as security for, and in satisfaction of, the plaintiff’s debt against the defendant. If the property 02 [209] right in question can be reached either by attachment or by execution at law, there is no ground for resorting to equity; and the jurisdiction in equity is limited by the statute to such property or rights as can neither be attached nor taken on execution at law. The debt set out in the bill being a legal debt, the plaintiffs might, in an action at law thereon, attach and levy their execution upon the real estate of their debtor. Such levy upon the land would include the rent accruing after it was made, and the attachment, if duly recorded, would constitute a lien on the real estate, and would prevent any intermediate assignment from affecting such rent. Gen. Sts. c. 103, §§ 1, 13, 14; c. 123, §§ 32, 51. St. 1873, c. 297. Taylor v. Mixter, 11 Pick. 341, 348. The only interest in the rents of real estate, therefore, which cannot be reached at law, is in so much of the rent as would accrue before an action at law, if brought at the time of filing the bill, could be prosecuted to final judgment and levy of execution. How much such rent would be depends upon the question, how long it would take to conduct an action at law to judgment. That is a question which is hardly capable of being determined in advance, and which it would be absurd for a court of chancery to undertake to try; and yet, on the only ground upon which the plaintiffs seek to maintain their bill, the very extent of the jurisdiction and power of the court depends upon the determination of this question, inasmuch as the statute gives the court sitting in equity no authority to apply to the payment of the plaintiff’s debt the rents which would accrue after and be bound by a levy of execution at law. The provisions of the statutes for attaching and levying upon real estate and the rents and profits thereof must be deemed to have afforded the entire remedy which the Legislature intended to give for applying to the payment of debts any title in real estate, or in the rents and profits thereof, which is a legal interest of such a nature as to be capable of being taken on execution at law. See Taylor v. Robinson, 7 Allen, 253. Decroo affirmed.