Cornell v. Radway

One of tbe principal questions presented by tbis case was likewise presented to and decided by tbis *264court in the case of Gates v. Boomer, 17 Wis., 455. That was an action by the plaintiffs, judgment creditors of one of the defendants, to have a deed executed by him to his co-defendant set aside' as a fraudulent obstruction to the proceedings of the plaintiffs to enforce the liens of their judgments, and so that they might sell the property upon execution. The action was sustained, and this court quotes with approbation the language of the chancellor in Beck v. Burdett, 1 Paige, 305, and other cases, to the effect that there are two classes of cases where a plaintiff is permitted to come into a court of equity for relief, after having proceeded to judgment and execution at law without obtaining satisfaction of his debt. In the one case he is compelled to come for the purpose of removing some obstructions fraudulently or inequitably interposed to prevent a sale on execution. In the other, he comes to obtain satisfaction of his debt out of the property of the defendant which cannot be reached by execution at law. As was said of Oates v. Boomer, this is obviously a ease of the former character; and, as the judgment of the plaintiff is by statute a specific lien upon the land without the issue or levy of an execution, it would seem that the plaintiff is entitled to the aid of the court, whether execution has been issued and returned unsatisfied, or not; and especially would this seem to be so, where it appears from the complaint that the plaintiff is otherwise without means of obtaining satisfaction of his debt. The existence of the lien without adequate remedy for enforcing it at law, by reason of the fraudulent or inequitable obstruction interposed by the defendant, is sufficient to give a court of equity jurisdiction.

This disposes of all questions of irregularity in issuing the execution, alleged in the complaint to have been issued. If the issue of execution is not required at all, then the rights of the plaintiff are not prejudiced by one irregularly issued.

*265But another answer to this objection is, that it does not appear from the complaint that the execution was irregularly issued. It is not averred in the complaint that it was issued without leave of court; and that fact not being shown, there is nothing upon which to base the objection.

The same observation is true of the objection that the judgment is not a lien by reason of the premises in question being the homestead of the judgment debtor, and therefore exempt. It does not appear from the complaint that the debtor had no other real estate, nor that this land was occupied by him as a homestead in the manner prescribed by statute;

Ror do we think the case falls within the principle laid down in Bate v. Graham, 11 N. Y., 237. That was an action by a creditor having no specific lien or interest, to impeach a sale of personal property made by his deceased debtor with intent to defraud creditors, and to recover the same from the fraudulent vendee. Here the creditor has a specific lien, which he cannot enforce without the aid of equity, and he calls upon the court for that purpose. The distinction between the two cases is too obvious to require further comment.

Ror do the statutes authorizing an executor or administrator to sue for and recover back real estate conveyed by a deceased person in his life time with intent to defraud his creditors, and providing for the disposition of the proceeds of the real estate so recovered (R. S., chap. 100, secs. 16, 17 and 18), at all affect the question of the plaintiff’s right to sue. They do not take away his remedy, nor deprive him of the lien of his judgment.

The only remaining objection is, that the administrator is not a party defendant. This is well answered when it is said that this is a proceeding for the benefit of the estate, and that the administrator could make no opposition if he *266were.present. We do not see, therefore, how the estate can be prejudiced, or the plaintiff’s right to relief affected by the absence of the administrator. The conveyance to the defendant Jones being set aside, and the title adjudged to have been in the deceased judgment debtor from the time of his purchase, the plaintiff will then proceed as if the debtor had died seized of the land with full evidence of title in himself. The administrator is not a necessary party.

By the Court. — Order affirmed.