McCullough v. Colby et al.

These views aid in the estimation of the authority of Neate v. The Duke of Marlborough. (3 Mylne & Craig, 407.) As a decision it is explicit that an elegit must be issued, although it need not be returned. It is shown that the case of Manningham v. Lord Bolinbroke was a case of a demurrer overruled, because it was not necessary to state the return of the writ, although it was so as to its having been issued.

The language of Lord COTTENHAM imports merely that the judgment per se gives no title to the land, and therefore does not authorize an application to the Court of Equity. It is the act of Parliament which gives the legal title upon taking out the writ that legal title or right being to bring ejectment. If obstructed in this, the Court gives its aid. In other words, it is not because there was nothing of lien, but because the creditor had not asserted such lien by the usual process-in truth, had not shown a remedy at law ineffectual.

The view, which I consider as entirely satisfactory upon this point, is this: I have before shown that it was an ancient 'rule, that if there were goods and chattels sufficient to pay the debt, lands should not be extended. The elegit comprised in one writ the direction to make the debt out of goods and chattels, and out of a moiety of the lands. The construction and rule which required that the goods should be first resorted to, has been adopted in terms in all the executions known in our State since the year 1787.

Thus, in the law of the 19th of March of that year, (1 Greenl., 407.) section 7, the execution to be issued against lands and tenements is to command the Sheriff that of the goods and chattels he make the debt, &c., and if sufficient goods and chattels cannot be found, then he cause the debt to be made of the lands, &c. Section 9 of the revised act of 1813, (1 R. L., 502,) is exactly to the same effect. The provision of the Revised Statutes of 1830 is substantially the same. (2 R. S., 367, § 24.) And the Code is, that if the execution is against the property of the judgment debtor, it shall require the officer to satisfy the judgment out of the personal property, and if sufficient personal property cannot be found, out of the real property belonging to the debtor on the day when the judgment was docketed.

McCullough v. Colby et al.

In all this there is the plain principle found that personal property is the primary fund for payment of the judgment debt, and an execution to reach such property is the regular and known method of ascertaining whether it exists or not. It is presumed that the Sheriff does his duty and will levy upon personal property if it can be found; but to raise this presumption the writ must, of course, be in his hands.

This line of reasoning tends to support the right to file such a bill as the present, after execution issued, and before its return, upon allegations of the inability of the Sheriff to find personal property, and of the interposition of the fraudulent transfer of real estate; and for this we shall find considerable authority in the cases hereafter mentioned.

It is insisted by the defendants' counsel that no case can be found distinctly holding that a fraudulent transfer of real estate may be set aside without an execution issued.

The following are the leading authorities in our Courts connected with a fraudulent conveyance of real estate:

In Brinckerhoff v. Brown, (4 Johns. Ch. R., 671,) there is nothing but the general language of Chancellor KENT, which the counsel has referred to, which tends to support the proposition that an execution is not necessary. The property in question was personal. No execution had been taken out, nor judg ment recovered, when the bill was filed, but a judgment was obtained during the pendency of the suit. The case offered no ground as to real estate, as the legal remedy was plain and open. In Hendricks v. Robinson, (2 Johns. Ch. R., 283,) the bill was by a judgment creditor, and after execution issued. It was to set aside conveyances of real estate, as well as transfers of personal property. The Chancellor held that the conveyances of the real estate were void, and should be declared fraudulent. The bill was filed in June, 1809. The execution had been issued on the 6th of February, 1809, upon judgments recovered in the month of January, 1808. The conveyances were made in March, 1808. There is nothing to show that the executions had been returned; but there was an allegation in the bill, after the statement of the issuing of the executions, that by reason of the said fraudulent transfers (above stated) the plaintiff could obtain no satisfaction of his judgments. This case, then, involves the proposition,

McCullough v. Colby et al.

that after execution on a judgment a transfer of real estate may be set aside in equity. It involves also, as I think, the proposition that such execution need not be returned. It tends to negative the proposition that a judgment without execution is sufficient. And when the language of Chancellor Kent is considered, (see p. 296,) used when he is treating of the transfer of the real estate, we are almost authorized to say that he deemed the issuing of an execution essential.

In Brinckerhoff v. Brown, (6 Johns. Ch. R., 139,) the executions of all the co-plaintiffs, (judgment creditors,) had been returned. The bill was to reach many things besides real property.

I

The decisions of Chancellor WALWORTH, upon questions of fraudulent conveyances and transfers, are very numerous. select that of King v. Wilcox, (11 Paige, 589,) as pertinent to the present inquiry. The complainants had obtained a judgment, and had issued an execution. It is not stated that the execution had been returned, only that Wilcox had no property on which the execution could be levied, except the premises specified in the deed assailed. It was real estate conveyed, and tae convey. ance was set aside.

The Bank of Orange County v. Fink, (7 Paige, 87,) was a case of an execution taken out, and real estate alone in question. In The Bank of the United States v. Housman, (6 Paige, 527,) the executions had been returned.

It is true that in Clarkson v. Depeyster, (3 Paige, 320,) the Chancellor does say: "That for the purpose of obtaining the relief sought it was not necessary for the judgment creditor even to sue out execution; that he might have filed his bill in respect of the lien, and to clear the real estate from an incumbrance improperly or fraudulently interposed at any time after the docketing of his judgment." Yet, in the case, the judgment creditor had issued and had an execution returned, and the creditor by decree had the execntion in the hands of the Sheriff. The latter was a lien from the time of issuing the execution.

The Chancellor refers to 1 Paige, 305, and 4 Johns. Ch. R., 677. The former case (Beck v. Burdett) cannot give support to the proposition; I think its language is hostile to it. The other case ( Brinckerhoff v. Brown) does not sustain it.

McCullough v. Colby et al.

In The Mohawk Bank v. Atwater, (2 Paige, 54,) the complainants had taken out executions on their judgments, under which a sale had been made, and they had purchased the property. They then filed a bill to set aside fraudulent conveyances. The Chancellor does indeed repeat the proposition stated by him in Clarkson v. Depeyster.

With the exception of these dicta of the very learned Chancellors I have mentioned, and the dictum of Assistant ViceChancellor SANDFORD in Storm v. Waddell, (2 Sandf. Ch. R., 510,) there is not, I believe, to be found the least authority warranting the proposition that an execution need not be issued, down to the period of the close of the Court of Chancery in our State.

I have gone over numerous cases decided since that time. In the following a conveyance of real estate comes in question, generally connected with transfers of personalty: Nicholson v. Leavitt, (4 Sandf. S. C. R., 253; 2 Seld., 510,) The Chautauque Bank v. White, (2 Seld., 236,) Brigham v. Tillinghast, (3 Kern., 215,) Collomb v. Caldwell, (16 N. Y. R., 484,) Barney v. Griffin, (2 Comst., 365,) a case limited to real estate, and of a bill after execution returned unsatisfied; Crippen v. Hudson, (3 Kern., 161,) Greenwood v. Brodhead, (8 Barb., 593,) Bishop v. Hulsey, (3 Abb., 400,) Wilson v. Forsyth. (24 Barb., 105.) There is nothing in either of these cases that approaches to a decision of the point contended for by the plaintiff's counsel. There are a few general expressions scattered through the opinions in its favor, and nothing more.

My conclusion is, that the North American Company v. Graham is not affected by any decisive authority, previous or subsequent, nor by any sound line of legal reasoning; that it announces the true rule; and that the judgment in the present case must be affirmed.

Judgment affirmed., with costs.

Garrison v. The Mayor, &c., of the City of New York.

JOHN GARRISON, Plaintiff, v. THE MAYOR, &C., of the City of New York, Defendants.

1. Proof that a coach driven upon one of the piers owned by the corporation of the city of New York at the foot of one of the streets, breaks through a plank that is decayed, by means of which the plaintiff's trunk is thrown into the river, and its contents damaged, is not sufficient to sustain an action against the city for the injury, nor to put the defendants to proof of reasonable and proper care and diligence in keeping such pier in repair. (WOODRUFF, J., dissented.)

2. In order to establish, even prima facie, a right of action the plaintiff must show affirmatively on his part not only that the plank was decayed, but that the proper officers of the corporation had notice that it was decayed, or show that it was obvious to the eye without any particular examination. (WOODRUFF, J., dissented.)

(Before WOODRUFF, PIERREPONT and MONCRIEF, J. J.)

Heard, February 8; decided, December 10, 1859.

ACTION to recover damages alleged to have been sustained by the plaintiff by reason of the carelessness and negligence of the defendants in not keeping in repair a certain public wharf and pier owned by the defendants, and in their care and control, and which they were bound to keep in a good and safe condition, at the foot of a street on the North or Hudson river.

The answer denied all the allegations of the plaintiff.

The action was tried on the 23d day of November, 1858, before Mr. Justice PIERREPONT and a jury.

On the trial it was expressly admitted that the defendants are and were in the month of August, 1856, owners of the pier, in question, at the foot of Spring street, on the North river, and thereupon the plaintiff proved by the driver of a coach, that he drove his coach, in which was the plaintiff, having also the plaintiff's trunk thereon, from the hotel to the pier in question to carry them to a steamboat lying at the pier; that two steamboats were lying there and he had passengers for each; that after delivering passengers and their baggage to one he turned to drive to the other; that in turning he got his coach crosswise of the pier when one of the planks gave way, the wheel of the Bosw.-VOL. V.

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