People ex rel. Hasbrouck v. Ulster Common Pleas

By the Court,

Cowen, J.

[630] Lounsberry held a lien, and had a full right in virtue of that till Van Burén took his deed in June, 1836. 11 is direct and primary course, it is true, was to redeem : but the land going as it probably «lid for its full value, and he being obliged to pay the full purchase money to the sheriff, the surplus would go to the debtor, who might thus apply it to satisfy this alleged fraudulent judgment of the relator, or convert it to his own use. That would be but an indifferent remedy for Lounsberry. The only difference between this case and that of Van Nest v. Yeomans, (1 Wendell, 87,) is, that there, the lien in favor of the junior creditor continued to the time of the motion. Here, owing to delay for some cause, it expired before the motion was decided. It came down to the simple case of a sheriff levying a surplus of the debtor’s money on a senior judgment or execution, and then the junior judgment creditor, coming as such without any formal lien, for an order to pay the money to him. (3 Caines, 84. 5 Johns. R. 163. 7 Wendell, 262.) He has an equitable right, indeed an equitable lien, which the court can enforce while the money continues in the hands of its officer. If a formal execution be necessary on Lounsberry’s judgment that can issue at any time; but he had one out, which I suppose was in life when the money was paid. (1 Doug. 231.)

[631] All this, to be sure, is looking at the question as between James J. Uashrouclt and Lounsberry ; and presupposes that the money belongs to James O. Hasbrouck, and should therefore go to his judgment creditors. In that way both parties choose to regard it. Van Burén, for aught I know, may have rights in this surplus ; but the parties and the sheriff have all proceeded so far as if he had none. It is said he may redeem on paying the two older judgments under which the second sale was had, and so will be entitled to the surplus himself, provided James J. Hasbrouck’s judgment shall be put out of the way as fraudulent. If Van Buren has rights to the surplus, the sheriff is a trustee for him. (Every v. Edgerton, 7 Wendell, 259, 263.) He is a purchaser under judgments which would protect him against James J. Hasbrouck's claim, if that was fraudulent and void as to creditors. Van Burén claims in the right of some of those creditors. A verdict, against James J. Hasbrouck’s claim may inure to the benefit of Van Burén, and raise a question between him and Lounsberry. But that can be no reason why the fraudulent judgment of James J. Hasbrouck should take the money. It multiplies the claimants adverse to him. His failure would leave the whole surplus to be disposed of as if he or his judgment had never been. Be it Lounsberry’s or be it Van Buren’s, it is not his. To warrant an. order for paying the money over to James J. Hasbrouck, his equity should appear to be plain. (Williams v. Rogers, 5 Johns. R. 163.) All the other judgments, and there were 10 or 12 in the whole, are admitted to have been honest. James J. Hasbrouck, if his judgment was a fraud, cannot be allowed to take the money as against any of them or any person claiming under them. The court of common pleas have a right to hold on to the surplus in their discretion, for the satisfaction for all such claims, till they are satisfied that the relator’s claim is valid. The court may interfere in a summary way, on motion by any junior judgment creditor, and set aside a senior fraudulent judgment which stands upon the record. It is enough that it may come in his way and interrupt his present or future proceedings in the collection of his own judgment.

I cannot see enough in this case to warrant an interference by mandamus. I think the common pleas are proceeding correctly. Motion denied, with costs.