Buswell v. Lincks , 8 Daly 518 ( 1880 )

Joseph F. Daly, J.

The judgment creditor, after the return of execution unsatisfied, might maintain an action to set aside fraudulent conveyance of, or incumbrances upon, the real estate or chattels real of the debtor, because the lien necessary to support such action is effected by the docketing of the judgment (2 R. S. 359, § 3 ; Code, § 1251) ; and it is not necessary that his execution should be outstanding to create or preserve a specific lien on the real property which is the subject of the creditor’s action. (Brinkerhoff v. Brown, 4 Johns. Ch. 671-7 ; Forbes v. Logan, 4 Bosw. 86 per Bosworth, J.; McElwain v. Willis, 7 Wend. 548,561-2, cited in Crippen v. Hudson, 13 N. Y. 161-6.) As the creditor must exhaust the personal property of the judgment-debtor fiefore having' recourse to the real estate, it is essential to show that an execution has been issued (North Am. Ins. Co. v. Graham, 5 Sand. 197, reviewed in McCullogh v. Colly, 5 Bos. 477); and, while it appears conclusively by the return of an execution nulla Iona that the debtor has no personal estate, yet it is not essential that the execution should be returned to authorize the action to set aside fraudulent conveyances of, or incumbrances upon, the debtor’s real property. (Fox v. Moyer, 54 N. Y. 125 ; McCullogh v. Colby, 5 Bos. 477-195.) It is only where an action in the nature of a creditor's bill is brought to reach equitable assets and dioses in action that it is essential to show execution returned unsatisfied ; and this is necessary in order to prove that the creditor’s legal remedy is exhausted. (Fox v. Moyer, 54 N. Y. 125-9 ; N. Am. Ins. Co. v. Graham, 5 Sand. 199 ; McElwain v. Willis, 9 Wend. 557 ; Crippen v. Hudson, 13 N. Y. 161). The learned chief justice who heard this cause at special term properly held that the fact that the plaintiff’s execution had been returned before the commenceriient of this action was no harto the relief he claimed as to the fraudulent conveyance of the real estate.

The point is made that the bill was framed upon the basis of a claim that there had been a fraudulent trust-deed, and a receiver had been prayed for, while the relief given in setting aside the fraudulent conveyance and adjudging a sale of the leasehold under execution was inconsistent with the prayer of the complaint. The sufficient answer to this proposition is: that the judgment was such as the court was bound to give upon the allegations and proofs without reference to the relief demanded.

It is also said that judgment granting execution against the real estate is improper, because the court has found the transfer of personal property also void, and this finding leaves in the judgment-debtor personal property out of which the judgment may be satisfied without recourse to the real estate. Although the learned chief justice found the transfer of personal property void, he refused to adjudge it liable to sale because plaintiff had no lien by outstanding- execution to warrant an action to clear the personal property of fraudulent conveyances. There being no judgment declaring the personal subject to sale, the title remains.in the transferees until an execution can be issued and an action brought thereon to reach it (Cuyler v. Moreland, 6 Paige, 273); and as far as this action and the judgment in it are concerned, plaintiff has gained no right to sell the personal property under execution. IIis recourse, therefore, is against the real estate, the personal property being in the hands of transferees of the judgment debtor.

All the questions in the case as to the regularity of the judgment against Jacob Lincks, the jurisdiction of the court, and the admissibility of evidence of answers given at the former residence of Jacob Lincks to inquiries for him, are so ably and exhaustively treated in the opinion delivered by the chief justice. upon the decision of this case as to require nothing additional on our' part. It was essential to show “ proper and diligent effort ” to serve the process, that the “ defendant cannot bs found,’’ or that he “ avoids or evades such service ” (L. 1853, c. 571), as a foundation for an order for substituted service, such as was made in the action in which plaintiff recovered his judgment against Jacob Lincks. The defendant’s counsel himself insisted on the trial that plaintiff was bound to show not only that Jacob Lincks was a resident of the State, but that he was avoiding service.

Whether the evidence so obtained was competent proof of the residence of Jacob Lincks is another question. As far as it showed declarations of the defendant, Louis Lincks, on that subject, it was competent to contradict him, and even to estop him from denying any fact as to his father’s residence which he then asserted, and the contrary of which he offered to show on this trial. If his declarations were such as lead to the belief that his father was a resident of thh State, knowing that the object was to serve the summons ob the latter in this action, and the plaintiff was induced thereby to proceed against him as a resident evading service, it is difficult to understand why he is not estopped from questioning the fact of residence and the consequent jurisdiction of the court in this action against himself, as a fraudulent transferee, founded upon the proceedings so taken againsi his father. '

On the question of change of residence of Jacob Lindt*.' (apart from any question of estoppel, or any declarations of persons at his last known place of residence in this State) I agree with the conclusions of the chief justice for the reasons stated in his opinion.

The defendant’s requests to find as facts certain detached portions of the evidence introduced to establish one fact—viz., non-residence—were properly refused. The true practice is settled in Quincey v. Young (5 Daly, 44), which is directly in point, and is approved by the 'Court of Appeals in the same case sub nom., Quincey v. White (63 N. Y. 382), the court saying, “ The general rule is, that facts are to be found, and not evidence.”

The judgment should be affirmed with costs.

Larremore and Van Hoesen, JJ., concurred.