Eyler v. Crabbs

Le Grand, C. ,1., delivered the opinion of the court. The view which we have taken of this case, as presented by the record, dispenses with the necessity of considering some of the points made in the argument of counsel. The bill was filed for the double purpose of annulling the deed executed by Eyler to Matthews, and of enforcing, as against the defendants, an alleged lien for the unpaid purchase money due upon a sale and conveyance of the property mentioned in the deed from Eyler to Matthews. The decree pronounced by the county court is founded en [154] tirely on the ground, that the vendor’s lien has been made out against both of the defendants. To sustain such a decree, it is necessary it should appear, that either Eyler was insolvent or that the complainant had exhausted all his other remedies before he filed his bill. Pratt vs. Vanwyck’s Excr’s, 6 Gill and John., 496, and Richardson vs. Stillinger, 12 Gill and John., 477, are sufficient authority for this doctrine. The question then is, has the complainant established either of these propositions ? We think not. The complainant does not aver that he had exhausted his remedies against Eyler before he filed his bill against both of the defendants; but this omission, since the act of 1832, would not prejudice his case before this court, provided there was proof to show the fact, no exception having been taken to the sufficiency of the averments of the bill in the court below. But as the case is presented by the record, there is no proof of either of the essentials to the sustentation of this proceeding. It is true, the bill refers to and makes an exhibit of a former proceeding in equity against Eyler, but the record’ of that suit is not proven under the commission, nor is it certified’ to under the seal of the clerk of the court. The answers of the defendants are silent in regard to it, and this silence imposed on the complainant the obligation to establish the verity of the-record, and this he has failed to do. Warfield vs. Gambrill, 1 Gill and John., 503. The proof of the insolvency of Eyler, apart from the proceedings in equity against him, it is contended, is to be discovered in the short copy offi.fias., with entry of nulla bona thereon, to be found in the record. It does not appear when or how these papers were introduced into the case. But it is supposed that as there was no objection urged to this proof, it is too late now to interpose- any. We think not; to such a case the act of 1832 does not apply. Stockett vs. Jones, 10 G. & J., 276. The case, without affirming or reversing the decree of the county court, will be remanded for further: proceedings-;, but [155] as the act of 1832 makes it the duty of this court to express its opinion on the merits of the cause, and to give directions to the court to which the record shall be remanded, we state, that had the record in the former proceeding been duly verified, or had the evidence of returns of nulla bona to the writ of fieri facias been properly introduced into .the case, we should have felt bound to have affirmed the decree of the county court, there having been no exception taken to the insufficiency of the averments of the bill. Entertaining these views, we deem it unnecessary to advert to the other questions raised in the cause, satisfied that if the deficiences alluded to be supplied, that the complainant below will secure the object of his proceeding. Cause remanded under act of 1832, chap. 302, for further proceedings.