Jackson v. Forrest , 1848 N.Y. LEXIS 184 ( 1848 )

The Chancellor.

There is án error, in’the bill with which I have been furnished, in stating the commencement of the complainant’s suit agáinst W. Leggett to have been in October term, 1839; which was subsequent to the death of the latter, as stated in the bill. This, probably, was a mere slip of the pen, as'the time of the recovery of the judgment, is stated to have been in January of that year. Tbe error in stating the time of the commencement of the suit is therefore probably immaterial.

There is no foundation for the objection that the suit against the administratrix is barred by lapse of time. For it is not stated when administration was granted to her upon the estate of her husband. But. I think the objection that the bill is multifarious is well taken.

It is alleged that the personal estate of the decedent, which came to the hands of his administratrix, was about §10,000. And the amount due upon the complainant’s judgment, including interest thereon, was less than §900, at the time of filing the bill in this cause. There is nothing in this case, therefore, to show that the complainant has not a perfect remedy against the administratrix and her sureties, for the amount due upon his judgment. He has then no right to follow the personal estate into the hands of a third person, to .whom, if the allegations in the bill are true, she has paid it in her own wrong. The defendant Forrest, therefore, was not a proper party to a bill against the administratrix, for an account and payment of the complainant’s' debt, out of the personal estate which had come to her hands. And I see no reason for making Forrest a party, except for the purpose of depriving Mrs. Leggett of the oenefit of his testimony in the suit; an answer on oath from both defendants being waived by the bill.

On the other hand, if the consideration of the conveyance to Forrest was actually paid by W. Leggett, and the deed was taken in the name of the former for the purpose of defrauding the complainant, and other creditors whose debts then existed, that conveyance was valid as between the parties ; and vested he whole legal and equitable title in the grantee, under the provisions of the revised statutes. (1 R. S. 728, § 51.) It was fraudulent, however, as to the complainant, as an existing cred itor. And he has a right to file his bill against Forrest to set it aside, so far as to have his judgment satisfied out of the land of the fraudulent grantee thereof. (Idem, § 52.) But in relation to that part of the bill in this cause, the administratrix was improperly made a defendant. And her testimony may be rery material for her co-defendant, in respect to that part of the complainant’s bill.

The demurrers of the defendants respectively must therefore be allowed. And the bill must be dismissed, with costs to each, ipon the ground of multifariousness. That, of course, will not prevent the complainant from filing, new bills, against the defendants separately, for the relief to which he may be entitled against them respectively.