Heath v. Hand , 1 Paige Ch. 330 ( 1829 )

The Chancellor :—It appears from the bill and answer in this cause, that the acceptances and responsibilities which Hand and Kenyon had not paid, were included in and intended to be secured by the judgment for $9,800. It is therefore immaterial whether there was any express agreement to pay them or not. To that extent the holders of those drafts and notes accepted and indorsed by Hand and Kenyon have an equitable interest in the judgment, Bank of Auburn v. *Throop, 18 John. 405,) which, being prior to the assignment to Lightbody, must prevail, except so far as he stands in the same situation with those creditors. The assignee of a judgment or other chose in action takes it subject to all the equities which existed against it in the hands of the original holders.

Hand and Kenyon being irresponsible, the complainant has a right to require that he be discharged from the payment of those drafts and notes before the proceeds of his property can be applied to any other purpose. The judgment being given to secure the payment of particular debts and responsibilities, Hand and Kenyon have no right to divert it to other purposes without the consent of the complainant. There is undoubtedly a considerable indebtedness from the complainant secured by this judgment, and it might be necessary, for the purpose of obtaining full security, to take out the execution and levy on his personal property, even before the acceptances and indorsements were paid. Hnder such circumstances it would be improper to let that property remain and perish in the hands of the sheriff. The injunction must therefore be modified, so far as to permit the sheriff to sell the personal property on the execution, and deposit the proceeds thereof with the register of this court, to abide the further order thereof.