Stallman v. White

RESCRIPT

TANNER, P. J.

This is a bill brought for the specific performance of an agreement to cancel the sale of real estate if the building thereon should be condemned by the city authorities within a year.

It is alleged that the respondent White has procured the respondent Silverman t-o bring a collusive suit against him and attach the property of the respondent White for the purpose of defeating the judgment that may be obtained by the plaintiff in this bill.

The respondent Slverman demurs to the bill because the plaintiff has not obtained a judgment before proceeding to have his attachment and suit declared void.

It is true that in creditor’s bills and the ordinary bill which is brought in aid of execution this is necessary but we think justice requires that we should sustain this bill against Sil-verman against demurrer to prevent the possibility of Silverman being able to sell the real estate which he has attached before the -plaintiff can get judgment in this suit. If Silverman could thus sell the property, a bona fide purchaser might obtain a title which would defeat the execution which the plaintiff may obtain upon his judgment in this suit against this property so attached.

We shall, therefore, overrule the demurrer.

5 Pom. Eq. Jr., p. 2308.