Clowes v. Dickinson , 1 Lock. Rev. Cas. 72 ( 1799 )

The Court of Errors on appeal, reversed the decree of the Chancellor in form, but in effect affirmed it, except as to the rule of compensation. They held that the judgment creditor might have been compelled, on motion to the court in which his judgment was obtained, or on filing a bill in Chancery, by order or decree, to exhaust the estate remaining in the hands of the debtor or his heirs, before selling the part so aliened; and that if he first sell the land aliened, before resorting to the other, though no order or decree be obtained, he shall restore it to the alienee ; or if sold to a bona fide purchaser, before bill filed, the judgment creditor who bid it in, shall account to the first alienee for the value of the real estate aliened, if the other assets of the vendor would have satisfied the judgment; or if they would not have satisfied it, then that the judgment creditor should account to the alienee, the plaintiff, for the value of the premises over and above what would have satisfied the judgment, after so exhausting the judgment debtor’s assets.

As to that, part of the Chancellor’s decree refusing to disturb the sale, the Court of Errors held that the alienee should not be allowed the land itself, having stood by and seen the sale, with improvements, before he asserted his claim. The only ground of reversal, therefore was, that the Court of Errors held, that the true value of the aliened estate in the market, at the time of the sheriff’s sale, and not the price bid at sheriff's sale, and paid for it, should form the measure of the alienee’s compensation.