Dargan v. Waring

COLLIER, C. J. A judgment creditor may resort to a-court of equity not only to subject the equitable interests of his debtor, but for the purpose of removing impediments to the sale at its value of an estate which may be reached by a [994] fieri facias. It has been held, that he may file his bill-to set aside a fraudulent conveyance of land as soon as he has obtained a judgment which is a Lien upon it, (Mohawk Bank v. Atwater, 2 Paige’s R. 54;) and to entitle him thus to proceed it is not necessary that he should first sue out an execution. [3 Paige’s Rep. 320. But see 1 Monr. Rep. 106, 231; 4 Id. 580; 1 Litt. Rep. 302; 2 McC. Ch. Rep. 410; 1 Paige’s Rep. 305.] A suit in equity by a creditor to set aside, a fraudulent deed, and have the land of his debtor sold, it has been decided, gives the complainant a lien on the land, which will not be defeated by a bona fide sale by the defendant, or under an execution on the judgment of another creditor. In such case, the purchaser under the execution pen-dente lite, will be overreached by the purchase under the decree, and the chancellor will compel him to surrender the possession. [5 Monr. Rep. 73; see 1 Dev. Eq. Rep. 537; 1 Hill’s Ch. Rep. 297, 301; 9 Wend. Rep. 548; 6 Ohio R. 233.] In the case at bar, Wiswall not only recovered a judgment against Ticknor, but he caused execution to be issued, which was returned “no property found;” the object of his bill was to vacate a conveyance (among other things) of land which Ticknor had made to Day, upon the ground that it was fraudulent. The jurisdiction of equity is well maintained by the authorities cited, and the most material question to be considered is; whether it can be divested by a subsequent levy and sale under a senior judgment. However this may be, where the lien of the judgment is paramount to that which attached by virtue of the suit in chancery, it is perfectly clear, that if the lien of the latter gave the superior right, the petitioner did not acquire a title by his purchase to which the-possession can be yielded. In Newdigate v. Lee and Rees, 9 Dana’s Rep. 20, it was determined that the filing of a bill by a judgment creditor to-, subject the land of his debtor, or at least the service of process upon the bill, gives the cemplainant a lien on the property, by placing it under the control of the court, which will not suffer it to be withdrawn so as to defeat the- object of the bill by any subsequent act or title.. If the land is sold under an execution which came to the officer’s hands, after [995] the bill had been filed, the purchaser must take it subject to the decree. So in Sumner v. Kelly, 2 Scho. & Lef. R. 398, it was decided, that when a decree has been obtained by a creditor on behalf of himself and other creditors, a prior creditor who has obtained a judgment a law in ejectment grounded on an elegit shall not be allowed to get into possession. The Lord Chancellor remarking that he could not suffer the proceedings in the court to be disturbed by letting any creditor get into possession. The neglect of the plaintiffs under whose judgments the petitioner claims, to sue out executions from term to term, after the return of the originals, if it did not give to the execution in favor of Wiswall the superior lien, yet when connected with the filing of the bill, it had that effect. This, we think, results not only from the plain language of the statutes upon the subject of executions, but from the repeated judicial expositions they have received. [See 1 Stew; R. 72; 3 Id. 433; 2 Stew. & P. Rep. 390; 4 Id. 237; 5 Ala. Rep. 43; 4 Id. 93, 679; 7 Id. 632.] In respect to the lien of the judgments, it may be remarked that it has been decided, that a judgment gives to the creditor a lien on the real estate, not in virtue of any express statutory enactment, but as a consequence of the act of 1807, which gives the writ of elegit against the lands of which the debtor was seized at the time of obtaining the judgment. [3 Ala. Rep. 560; 2 Stew. 401.] At the common law a judgment did not operate alien upon the real estate of the debtor; and the statute ^of Westminster, to which the right of lien owes its existence, does not in express words make the lands liable which the debtor had at the time of the judgment; but it is by implication and judicial construction, and by the election made by the plaintiff to sue out an elegit that a judgment is a lien upon the land. [3 Murph. Rep. 43.] But with us the act of 1812 preserves the lien, though the plaintiff causes a fieri facias to be issued. [Clay’s Dig. 199, § 1; 205, § 17.] In Den ex dem. &c. v. Hill, 1 Hayw. Rep. 72, it was said a judgment binds the lands from the time it is rendered, so as to take from the debtor.the right of disposing of them; but if a fieri facias issues upon a subsequent judgmefit, and [996] comes to the hands of the sheriff, and the lands of the debtor are levied on and sold thereunder, the title passes to the ven-dee. Between creditor and creditor, it is not the first judgment, but the first execution that gives the preference. To the same effect is a dictum in Campbell v. Spence, 4 Ala. 543, see 1 Stew. 72.] If Wiswall, inssead of proceeding in equity to set aside the conveyance from Ticknor for the benefit of Day, had caused a fieri facias to be issued, and the land in question to 'be sold, the purchaser would have acquired a title divested of the lien of the older judgments, and he, himself, would have been entitled to the purchase money. We have seen that the commencement of his suit in equity gave to his judgment a specific lien, which that court would not allow to be divested; that it was allowable for him to go into chancery and ask the removal of a fraudulent incumbrance, which would have prevented the land from yielding an equivalent at a sale under execution. Wiswall then, by the course he has pursued, cannot stand in a less favorable position, than if he had caused a levy and sale to be made; but his rights are precisely the same, and his superior diligence gives him a preference of the judgment creditors, under whose executions the petitioner purchased, The view we have taken is decisive of the cause, and as the result cannot be changed, we decline considering the other question discussed. The order of the court of chancery dismissing the petition, and the refusal to permit an ejectment to be brought, (if the latter part of the order is susceptible of revision,) is affirmed.