Judah v. Judd

Swift, Ch. J. The petitioner might have taken the land mortgaged by Judd to John and Jeremiah Shotwell in payment of his debt, by legal process ; or, they being absent debtors, he had a right by foreign attachment against Judd as debtor to them, to collect it of him. The only right which he could acquire against Judd was to collect the debt out of his estate ; which would operate as a payment to John [312] and Jeremiah Shotwell. A failure of such collection by the inability of Judd to pay, or for any other reason, could not operate as an assignment of the debt to the petitioner, or as a transfer of the interest of the Shotwells in the land mortgaged to secure the debt. The petitioner, by such proceeding,obtained no title in law or equity to the debt, or the mortgaged premises. A court of equity cannot create a right ; it can only give effect to existing rights. From the facts stated in the petition, it appears, that the petitioner could now by legal proceedings take the right of the Shotwells to the mortgaged premises in payment of their debt ; and a court of chancery might with equal propriety in all cases interfere, and decree that the land of a debtor shall be transferred to his creditor in payment of his debt, as in the present case. But no court of chancery ever claimed or exercised such a power. Trumbull, J. expressed his opinion concisely to the same effect. Edmond, J. The object manifestly sought by this petition is to procure the petitioner to be substituted as a party in the place of the Shotwells in the petition for a foreclosure, and in that way place himself before the mortgagees in a subsequent mortgage, obtain a foreclosure in his own favour, and by a decree of this Court vest the legal estate in himself. This the facts stated in the petition will not warrant. The petitioner has not shewn in his petition any tranfer of the debt due from Judd to the Shotwells, to himself. All that appears from it, is, that he has attempted by legal process to obtain the debt or effects of the Shotwells in Judd’s hands, and has failed in the attempt. I am of opinion that the petition is insufficient; and that the superior court be so advised. The other Judges concurred. Petition insufficient.