Houston v. Sadler , 4 Stew. & P. 130 ( 1833 )

Lipscomb, C. J.

In this case, the complainants had recovered a judgment at law, against Isaac Sad-ler, for about three hundred dollars, on a promissory note, given by him and his wife, Mary Sadler, to Anne P, Rossel, *iid by her indorsed to the complainants. An execution was sued out, and levied on a horse, which was claimed by Wallis, as trustee, for the benefit of Mary Sadler; and an issue was made up to try the right of property. Pending the issue, the complainants filed 'heir bill in Chancery, setting out, that a marriage contract had been entered into between Sadler and his wife, and Wallis constituted trustee, to whom certain property, belonging to Mary Sadler, the wife, bud been conveyed, in trust, for her use.

The bill slates, that the note, on which the judgment. at law was recovered, was given in consideration of a tract, of laud, purchased by Sadler and his wife, and that the titles had been made to the trustee ; that, the land was aftewurds sold by Sadler and wife, and the trustee, Wallis; and that the horse, levied on, was received in pari payment. It recites, -from the marriage.contract, a schedule of the property conveyed in trust, to Wallis. The bill seeks to subject the trust property to the payment of the complainants’ debt.; but it does not seek to charge the horse, as a part of the trust, property. It, however, alleges, that, if the house should he found subject. to their execution, it will not satisfy more than one-fourth thereof.

The Chancellor, on motion, before the answer was filed, ordered the complainants to make their election, whether to proceed with their suit in Chancery. or to proscenio the trial of the issue, made up, to try the right of property, in the horse levied on.— The complainants, reserving exceptions to the order dismissed their bill. The correctness of the order, requiring the complainants to elect, is now brought up, for revision.

The complainants had a right to insist, that the horse was no part of the trust property, and was subject to their execution. If .this was the case, there would have been no impropriety in their running their execution against it, for satisfaction, as far as it would go; and, at the'same time, seeking to satisfy the balance, from the trust property.

The judge, in assuming that the horse was trust property, as he must, have done, and ordering them to elect, deprived them of the privilege of shewing, that it was the separate property of Sadler.

But if it is admitted, that the two proceedings were seeking to subject the same property to the satisfaction of one and the same debt. Yet, the complainants ought not to have been called on to elect, until after the coming in of the defendants’ answer.— The complainants were entitled to the benefit of all the information the answer could supply, in making their election.

This doctrine is expressly recognised, in Jones vs. The, Earl of Strafford,^a by the Lord Chancellor King, and the Chief Justice, Lord Raymond. So in Vezey & Beams, 350; and ,tbe same in 4 Johns. Ch. R. 84: and it is now believed to be well settled.

The decretal order of the Chancellor, dismissing the complainants’ bill, must be reversed, and the cause remanded, at the cost of the defendants.

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