Ishmael v. Parker

Treat, C. J. This was a suit in chancery, brought by Alexander Parker against George W. Ishmael and Joseph Walker. The bill alleges that, on the 20th of May, 1850, Walker sold to Ishmael a lot in the town of Mount Sterling, and put him in possession thereof, for the consideration of $150 ; that Ishmael paid $60 in cash, and gave Walker a note for the balance, payable on the first of October thereafter, and Walker executed a bond to Ishmael, conditioned for the conveyance of the lot on the payment of the note; that, on the 31st of May, 1850, Ishmael sold the same lot to complainant, and delivered possession thereof, for the price of $162.50 ; that complainant paid $60 in hand, and gave Ishmael a note for the balance, payable on the 1st of October following, and received from Ishmael a bond for the conveyance of the lot on the payment of the note, which was fully paid on the 2d of December, 1850; that on the 31st of October, 1850, Ishmael, for a feigned consideration, conveyed five other town lots to William Stableton, for the purpose of defrauding the complainant, Walker, and his other creditors; and Stableton, on the same day, reconveyed the same lots to Ishmael, but the latter withholds the deed from record; that Ishmael has no personal property, and no other real estate than the five lots; that on the 2d of October, 1850, Walker made a deed to Ishmael for the lot, to be delivered on the payment of the balance of the purchase-money, but Ishmael wholly refuses to pay the same, and cause the title to be made to the complainant. The bill prays that the deed to Stableton may be set aside ; that the five lots be sold, to pay the amount due to Walker; and that Walker be required to convey the lot to the complainant. The bill was taken for confessed, and a decree entered, that Walker convey the lot to the complainant; that the deed to Stableton be set aside, and the five lots sold, to pay the amount due to Walker, and the costs of the suit. That portion of the decree which sets aside the deed to Stableton as fraudulent, and directs a sale of the five lots to pay the amount due to Walker, cannot for a moment be sustained. The complainant is not in a position to assail that conveyance, or to insist that those lots shall be held subject to the payment of the purchase-money due on the other lot. A creditor must obtain a judgment on his debt, and endeavor to coerce payment by execution, before he can go into equity to procure satisfaction out of property that cannot be reached on execution. He must exhaust his legal remedies without success, before he can resort to the equitable estate of his debtor. Until that is done, it does not appear but that he has an ample remedy at law. And a creditor may, after obtaining judgment against-his debtor, without first suing out an execution, ask the aid of a court of equity, to remove an obstacle in the way of its collection by execution. These principles are too well established to require discussion, or the reference to authorities to support them. The complainant must procure a judgment against Ishmael, before he can call in question the validity of the deed to Stableton; and Walker is in no better situation. He must recover judgment on his note, before he can attack the deed as fraudulent. That part of the decree which requires Walker to convey to the complainant, is equally erroneous. Walker is not bound to convey the lot, until the note is fully paid. He retained the title to secure the payment of the purchase-money. He cannot be compelled to part with the security, until the debt is discharged. His covenant is not broken, so long as the note remains unpaid. It may be that the complainant, upon full payment of the purchase-money to Walker, may enforce a specific execution of his agreement to convey. But in order to compel a conveyance from Walker to himself, he must first fully pay the note to Walker, or tender payment thereof. He must fully perform the agreement on the part of Ishmael, if he is to succeed to his rights as against Walker. And it may be, if he pays the balance due to Walker, that he will succeed to the rights of Walker as against Ishmael, and be entitled to a decree against the latter, for the amount advanced to Walker to obtain the title. The decree is reversed, and the cause remanded, with leave to the complainant to- amend his bill. Decree reversed.