Kirkhuff v. Kerr

The opinion of the court was delivered by Dixon, J. We think the circumstances of this case show quite clearly that the defendant Kerr used the attachment proceedings to effectuate a purpose which was in violation of the duty owed by him to the complainant. [626] Before instituting those proceedings he had acted for the complainant in taking charge of her real estate at Lavallette, and without notifying her distinctly that he gave up that trust, he issued the writ of attachment upon a claim which he then had in litigation with her in Pennsylvania, prosecuted it to judgment and by virtue thereof caused the complainant’s title to that real estate to be transferred to his own agent and trustee, Deibert, the other defendant. This he did surreptitiously, not only omitting to inform'the complainant of the pendency of his suit, but designedly concealing the matter when honesty and candor dictated that he should communicate it to her. Evidently his object was, not that he might collect what he considered due him, but that he might through her ignorance obtain her property for himself at whatever sacrifice of her interest he could bring about. This was a fraudulent abuse of legal process against which a court of equity may properly give relief, the court of law being unable to reach the title thereby acquired. Tomkins v. Tomkins, 3 Stock. 512; Herbert v. Herbert, 4 Dick. Ch. Rep. 565; 3 Pom. Eq. §§ 1364, 1365. Ve do not think the complainant’s delay in filing the bill is such as to disentitle her to equitable aid. Being led by Kerr’s settlement of the suit pending in the Pennsylvaia court, to suppose that he had abandoned the claim there presented as a set-off, and having no reason, to suspect that he could make any attack upon her property at Lavallette, no laches could be imputed to her in his favor, because of any inattention she might find it convenient to permit with respect to that estate; The evidence does not satisfy us that she had notice of his hostile proceedings until the year 1892, and in the interval between that and the filing of the bill, September, 1893, there was not sufficient lapse of time or change of conditions to operate as a bar. Our conclusion is that Kerr and Deibert should convey to the complainant so much of said Lavallette property as is still held by either of them,, and that Kerr should account to her for the fair value of so much as either of them has conveyed, unless within thirty days after notice of the decree Kerr files in the Ocean circuit, a written consent that the judgment in attachment [627] be opened and the complainant let in to defend; if he so consents, then the same accounting should be ordered, crediting Kerr therein with the amount of the judgment, if any, which he may recover in the attachment suit, and upon payment to him of the balance, if any, found due to him on the accounting, the same conveyance should be decreed. In the meantime the defendants should be enjoined from conveying and encumbering the property. The decree dismissing the bill should be reversed and a decree should be entered as aforesaid. For reversal — The Chief-Justice, Depue, Van Syckel, Dixon, Garrison, Lippincott, Gummere, Ludlow, Collins, Nixon, Hendrickson, Vredenburgh — 12. For affirmance — None.