Edgar v. Clevenger , 2 N.J. Eq. 258 ( 1839 )

The Chancellor.

The principal object in this cause is to set aside as fraudulent, a judgment entered by confession in the eourt of common pleas of the county of Middlesex, on the 5th of September, 1834, against Samuel Clevenger, in favor of Israel Wilkinson, for four hundred and seventy-four dollars and eighty-six cents. The complainant has a judgment of a later date against the same defendant for a large sum, on which he has taken out execution and levied on the same property covered by the execution issued on the judgment in favor of Wilkinson. He therefore stands in a position to question the validity of the antecedent judgment, and his complaints must be heard and decided. The charge in the bill is, that Clevenger confessed this judgment to Wilkinson, his brother-in-law, without consideration, to defraud the complainant out of his debt, and to prevent his recovering his money on his execution.

The defendants, Wilkinson and Clevenger, have put in a joint answer. They deny the fraud, and say that Clevenger was justly indebted to Wilkinson at the date of the judgment, to the amount for which it is entered up. That he was embarrassed in his circumstances, and it was seen his property must all be swept away; and that Wilkinson, with the view of saving his debt, and gaining priority over other creditors, obtained this judgment. They state the consideration to have been as follows :— In the year 1823, Wilkinson sold to Clevenger a number of cattle, and various farming utensils, for which he gave him three promissory notes. . One of these notes Wilkinson parted with, and retained the other two until the 2d of February, 1829, on which day the amount of principal and interest then due on said two notes was found to be two hundred and two dollars and fifty-five cents, and Clevenger gave him a bond for that sum. That Clevenger was indebted to one Thomas Marsh, and was prosecuted for it, and in May, 1833, the suit was settled and the money paid by Wilkinson, and to secure him Clevenger gave him his note for one hundred and ninety dollars, that being the amount he paid for him. They both swear that at the date of the judgment the amount of the aforesaid bond and note remained unpaid, and that the same constituted the consideration for which it was given.

' There is nothing in this statement extraordinary, or that could lead to any suspicion as to its truth ; and if true, the consideration of the judgment is fully made out. It must be borne in mind that this part of the answer- is responsive to the bill. It is charged, that the judgment is fraudulent and without consideration. The defendants were called upon not merely to negative this charge, but to state what the consideration was. Rut the defendants have not rested their case upon the answer alone. By the evidence of Moses Martin, they have proved the selling of the cattle and the giving of the bond. This witness says he drew the bond, and it was for the amount then düe from Clevenger to Wilkinson. The same witness also proves the settlement by Wilkinson for Clevenger, of the suit against him by Thomas Marsh, and identifies the note as the one given for the amount so advanced by Wilkinson. Judge Nevius also testifies to the settlement of the Marsh suit by Wilkinson. The body of the note he thinks is in the hand-writing of Mr. Cbetwood, who was the attorney of Marsh.

In opposition to all this, the complainant has offered single witness, Alexander Adams. He states that Wilkinson, the day after his judgment was confessed, said, that it was done to keep, or cheat, the complainant out of his money. And, after using a very harsh and unbecoming expression respecting the complainant, said, since he had sued Samuel they had fixed a judgment,' and if he had not sued him the judgment would not have been confessed. Wilkinson is further proved to be a man of no property.

With a judgment sustained as to consideration as this is, the evidence is entirely insufficient to overcome it. I do not doubt that Mr. Adams has related truly the conversation he heard; but it is evident that Wilkinson was in a passion, and was boasting of the precedence he had gained over the complainant. The right of one creditor to gain a preference for his own debt by judgment over every other, is lawful, and sanctioned by continual practice. Upon this part of the case, the complainant has failed to establish the charges made in the bill, and Wilkinson must be allowed to proceed unmolested with his execution.

Tf this was all the case, the bill should be dismissed with costs} but there are other matters, though not so material, oh which the complainant is entitled to relief. As against Clevenger, he is entitled to have his injunction from the commission of waste on the mortgaged premises continued. He is also entitled to have the injunction of this court to restrain Clevenger and Wilkinson from selling or removing any of the personal property, unless by sale under his execution, until the complainant’s debt is satisfied. The conduct of both Wilkinson and Clevenger was in this respect improper and illegal. They had no right to avail themselves of their situation to have any part of the defendant’s property sold at private sale, under the idea that they would afterwards apply it to satisfy the execution. The complainant had also* an execution, and had a right to what remained of the defendant’s property after satisfying the first execution, to pay off his own. This was done, as the defendant Wilkinson admits, by his consent; though he says that he thought it lawful. How far Wilkinson’s execution has been paid, is a- proper' matter for enquiry in the common pleas of Middlesex.-

The decree will be signed in conformity with these views, and under all the circumstances I shall not give costs to-either party. Decree accordingly.-