J. D. Sisler Co. v. Sterling

The Chancellor. The bill alleges recovery of judgment against Frank Sterling for $741.34 in the Court of Common Pleas of New Castle County. It fails to allege an issuance of execution and a return thereon showing it to be unsatisfied. No demurrer was interposed objecting to the bill on these grounds. It is now urged upon final hearing that the bill should be dismissed because it fails to show that the remedy at law was exhausted by judgment and execution thereon returned unsatisfied before resort to this court for its ancillary aid. This objection comes too late. The evidence discloses that as a matter of fact an execution was issued out of the Court of Common Pleas and returned nulla bona and the judgment thereupon transferred to the Superior Court. The evidence further shows that Frank Sterling has no other property, real or personal, out of which the judgment can be made. Having answered the bill and gone to final hearing, the defendants cannot avail themselves of the objection now urged that the bill fails to allege an execution and return of no goods. Crocker v. Dillon, 133 Mass. 91; Long v. Page, 10 Humph. (Tenn.) 541; In re Wm. S. Butler & Co., 207 Fed. 705, 125 C. C. A. 223. I shall not review the evidence by which the defendants seek to show that the money for the purchase of “Damascus” was in fact supplied out of funds belonging to Mrs. Sterling. In the view I take of the case, it is unnecessary for me to make a finding of fact with respect thereto. The case is determined against the defendants by the fact that even if Mrs. Sterling did furnish the money with which to make the purchase, her conduct has been such as to estop her from now asserting a claim of ownership against the complainant as a creditor of her husband. She knew that the deed of conveyance placed the title in her husband. This deed was duly recorded. The complainant, before accepting Sterling as endorser on Appleby’s note, consulted the public records in the Recorder of Deeds’ office [166] for the purpose of ascertaining whether Sterling was the owner of real estate in New Castle County. Finding that he was the record owner of “Damascus,” the complainant accepted him as endorser. It is not contended that the complainant had any notice or knowledge of Mrs. Sterling’s claim to be the real owner. When Mrs. Sterling learned that her husband had endorsed the note she then insisted that the title, which by her consent had remained in her •husband’s name for a period of six years, should be transferred to her. As soon as a creditor who had relied on the recorded deed seeks to assert rights on the faith thereof, she seeks to repudiate all the representations of that instrument, notwithstanding the fact that she consented to its execution and had full knowledge of its recordation. To allow her to do this would be to permit her1 to repudiate the consequences of that notice to the world which it is the purpose of the recording act to secure and to which by her conduct she assented. As against the complainant, the two deeds by which title was transferred to Mrs. Sterling must be held to be void in law. Besson v. Eveland, 26 N. J. Eq. 468; Budd v. Atkinson, 30 N. J. Eq. 530; Trust Co. v. Fitzharris, 239 Pa. 205, 86 Atl. 694; Lowentrout v. Campbell, 130 Ill. 503, 22 N. E. 744; Warner v. Watson, 35 Fla. 402, 17 South. 654; Goldberg v. Parker, 87 Conn. 99, 87 Atl. 555, 46 L. R. A. (N. S.) 1097, Ann. Cas. 1914C, 1059. A decree will be entered declaring the deeds in question void as against the complainant, directing payment to the complainant of the amount shown to be due within a specified time, or in default thereof that the premises be sold and the proceeds brought into court, and the costs taxed against the defendants.