Wilson v. Wilson

The injunction must be refused. There are two objections.

i. One is founded upon the rights of the present holder of the Wilson farm. He is a purchaser for a valuable consideration, deriving title also through a succession of such purchases. So I must assume, nothing to the contrary being alleged, except as to the consideration of the deed from C. R. Layton to Kimmey, after the Sheriff's sale. I can attach no effect to this. Nor is he affected with notice of any equity, even if there had been such, between the original parties, Wilson and Pettyjohn, making the land chargeable with the judgment in the hands of Pettyjohn to the relief of Wilson, as if the amount of the judgment had been deducted from the purchase money paid by Pettyjohn, upon the understanding that Wilson should be relieved from the judgment. No such arrangement is alleged, and it cannot be presumed; but even if it had been, and out of it an equity had arisen in favor of Wilson against Pettyjohn, it would not follow a purchase from him for a valuable consideration, and v/ithout notice that Pettyjohn took the land subject to such arrangement. Notice of the existence of the judgment, which is alleged with respect to all the purchases, is not sufficient to make the purchasers of the land first liable. A purchaser, knowing that the land he buys is subject to an existing judgment against the vendor and nothing more, may fairly rely (if he chooses to risk it) upon the ability of the vendor to pay the judgment, and upon his, the purchaser’s, well understood right to have any other estate of the debtor first applied to a lien in exoneration of land sold to a purchaser for consideration. Again, the fact that the land sold by Pettyjohn to Wilson, in exchange for the Wilson farm, was afterwards sold in execution of a judgment against Pettyjohn, so that, in the result, the consideration for Wilson’s conveyance failed, does not *187affect the present holder of the Wilson farm. Whether, even if .the farm still remained in Pettyjohn, equity would undertake,in this indirect way, to indemnify Wilson,instead of leaving him to his legal remedy, might be questioned. But, at all events, this circumstance does in no way affect the present holder. Neither he, nor any through whom he derived his title, is alleged to have purchased with notice of it. And, in fact, the title to the Wilson farm had passed from Pettyjohn through two purchasers, C. S. Layton and Kimmey, before Wilson was divested of the land conveyed to him in exchange, so that, so far as this circumstance was concerned, the title to the Wilson farm stood complete in those two purchasers, and as it stood in them it must pass to their purchasers, even if they had had notice of the Sheriff’s sale before their purchases.

2. The other objection is founded upon the rights of the judgment creditor. Wilson, in giving the Bank this judgment, gave to the Bank and to its assignees, as part of the contract, all the legal remedies appropriate for its collection, and among them the election to enforce it against any part of his real estate then held or to be acquired. It was not competent for him, afterwards, to abridge, in any degree, this right of election, by selling a part of his real estate, of even by any special arrangement (had there been such) between him and the purchaser, for the payment of the judgment out of the land sold, made without the creditor’s permission. It is true that when a debtor sells part of his real estate, which is all subject to a lien, equity will oblige the creditor to proceed first against the remaining estate of the debtor, but this is done at the instance and for the benefit of a third party, the purchaser, and in consideration of his equity as a purchaser for value. It will not be done in favor of the debtor himself, conrtrary to rights arising out of his own contract. It was a long time before, even in favor of a surety, a creditor would be compelled first to proceed against the principal. Hayes vs. Ward, 4 Johns, Ch. 132. But in favor of the principal *188debtor, equity will not interfere with the creditor’s choice of any one of several funds to which his judgment entitles, him at law, to resort. A contrary doctrine was held by Lord Thurlow in a very remarkable case, Wright vs. Nutt, 1 H. Bla. 136, and by Lord Loughborough, extra-judicially in Folliott vs. Ogden, Ib. 135 ; but against these are the greater authority of Lord Parker in Holditch vs. Mist, 1 P. W. 695, and Lord Eldon in Wright vs. Simpson, 9 Ves. Jr. 728. The doctrine ofLord Thurlow is considered as overruled, 1 Sto. Eq. Jur. Sec. 640. It can make no difference that the lands, now held by Wilson, and against which the judgment, if recovered may be used, were acquired after the date of the judgment. The judgment must be supposed to have been given in contemplation of the creditor’s right, under it, to take land, after acquired, as well as land then held.

It may be that the judgment was recovered adversely and not confessed under a warrant of attorney. Still the creditor’s rights would be of the same nature, whether arising out of contract with the debtor in the execution of a bond and warrant, or whether attached by law to the judgment record.

I may add that Reynolds, as a surety, holds a position different from that of Wilson. He is entitled, should Wilson’s other property prove insufficient, to have the Wilson farm applied to exonerate him. But this affords no ground to restrain the revival of the judgment against him, — certainly none to restrain its revival against Wilson, and it must be against both, if revived at all. Reynold’s rights, as a surety, can be sufficiently protected, after the judgment, by the control of execution upon it. The omision to serve the terre tenants of the Wilson farm can make no difference as to him. I do not see that it would preclude the creditor from a scire facias against the terre tenant, hereafter, if necessary; but, at all events, the creditor’s omission, however it might affect his power to proceed *189under his judgment, if the Wilson land were thus necessary to complete the collection of it, would riot be allowed to prejudice the surety, but the creditor would lose his remedy against him.