Mann v. Fairchild , 5 Barb. 108 ( 1848 )

Hand, J.

On the merits, in my opinion, this case is with the complainant. He purchased the claims on a sale of the effects of an insolvent bank, which sale was made by an officer of the court, (Edwards on Receivers, 2,) and in pursuance of its order. I cannot think that the law against attorneys, &c. purchasing choses in action (2 R. S. 288, §§ 71, 75,) extends to such cases. The sale is public, and under the supervision of the court, and must be made to close up the concern, and bears no resemblance to those cases where a member of the bar so far forgets bis place and duty as to seek for and put in suit contested claims which perhaps would have forever slept, had the parties in interest remained upon equal ground.

But the question at this time is hardly an open one. In Tuttle v. Jackson, (6 Wend. 224,) it was held that a sheriff’s sale of land did not come within the statute against selling pretended titles. The chancellor there considered it a change of property by operation of law. In Hall v. Gird, (7 Hill, 586,) Beardsley, J. thought the statute did not apply to cases in a court of chancery. These cases were in the court for the correction of errors. This last proposition was doubted by the late chancellor, in Baldwin v. Latson, (2 Barb. Ch. Rep. 306.) It is enough, however, to say that that was not a judicial sale.

But there is one objection to the complainant’s recovery that is insuperable. The allegation in the plea, that the purchase was with intent to injure, oppress, and aggrieve, is not traversable. But the intent to sue, I think, is; and has been proved. To affect the right of recovery in any case the statute requires that the purchase should be with the intent, and for the purpose, of bringing a suit thereon. (2 R. S. 287, § 71.) This is similar to the former statute, and under that it was supposed that the intent was to be shown by a suit actually commenced. (The People v. Walbridge, 3 Wend. 129.) The complainant made the purchase of the effects in September, 1846, and this suit must have been commenced as soon as in the early part of 1847. And there is also proof of the complainant’s declarations, of his intention to sue the defendant, immediately after the purchase. The plea then is proved; and although it is no defence in substance, yet upon proof of the truth of the defendant’s plea to the whole bill, the plaintiff necessarily fails in his suit. The authorities upon this point are abundant and conclusive. (Mitf. Eq. Pl. 302. Hughes v. Blake, 6 Wheat. 453, Story’s Eq. Pl. § 697. Bogardus v. Trinity Church, 4 Paige, 178,196, Dow v. McMichael, 2 Id. 345. 6 Id. 139, 144. Fish v. Miller, 5 Id. 29, 1 Hoff. Ch. Pr. 221. 1 Barb. Ch. Pr. 119.)

The bill must be dismissed with costs.