Child vs. Brace and others, 4 Paige Ch. 309

The Chancellor. The objection that the co-defendants in the judgment with Brace were not made parties to this suit, would probably have been valid, if it had been made at the proper time. But as it was neither raised by demurrer, nor insisted upon in the answer of the defendants, it afforded no sufficient ground for dismissing the complainant’s bill at the hearing. The only effect of such an objection at that time would have been, to have an order that the cause stand over; with liberty to the complainant to file a supplemental bill, for the purpose of bringing the necessary parties before the court.

That objection cannot, therefore, be now urged in support of a decree dismissing the bill of the complainant. Upon the facts, as detailed in the pleadings and proofs, I am inclined to think that the complainant was not entitled to hold the trust property, which was purchased in on his account, at the prices at which the same was bid in at auction. But that he was bound to allow the defendants, on the judgment, the actual cash value of that part of the property at the time of the sale.

The principle that a trustee for the sale cannot be permitted to make a speculation by purchasing in the trust property for himself, has been so frequently recognized in this court, that it would be a useless waste of time to cite cases on the subject. And I see nothing in the circumstances of the trust, created by the assignment to this complainant, to take it out of the operation of the general rule. s The ground upon which the vice chancellor placed his decision, however, was sufficient to dispose of this case. It appears, by the testimony, that N.

Brown, one of the defendants in the judgment, resides in the county of Montgomery, and has a large real estate there, on which the judgment was a lien. That fact also must have been known to the complainant ; for he had taken a mortgage on a part of that property. Although it is alleged in the bill that the complainant was not aware of any property belonging to the defendants in the judgment, upon which an execution could be levied, that allegation, if it was intended as an averment that Brown had no tangible property at the place of his residence, is disproved by the testimony of Brown.

The statute is general, that whenever an execution against the property of a defendant shall have been issued, on a judgment at law, and shall have been returned unsatisfied, in whole or in part, the party suing out such execution may file a bill in chancery, &c. (2 R. S. 173, § 38.) It must be recollected, however, that this statute is only declaratory of a principle which had before been adopted in this court. It means, therefore, that the plaintiff in the judgment shall have made a bona fide attempt to collect his debt, by execution against the property of the defendant.

If the plaintiff is not aware of the existence of any tangible property of the defendant, it may be sufficient to issue the execution to the county in which the defendant resides, or where he was residing at the time of the commencement of the original suit against him. And if he has, in fact, no property which is subject to execution, perhaps it may be sufficient to issue the execution to the county where the venue was laid, as was done in this case.

But where the judgment is in the supreme court., so that the execution may issue to any part of the .state, if the defendant has a fixed and known place of residence at the time the execution is issued, and has visible property in the county where he resides sufficient to satisfy the debt, it will be a good answer to the complainant’s bill, that he has neglected to issue an execution to that county.

And where there are several defendants in the judgment, who are jointly holden for the payment of the plaintiff’s debt, he should exhaust his legal remedy, by executions against the property of all, before he applies to this court for relief; except, perhaps, where one of the defendants is a mere surety. But even in that case the fact of suretyship, and an averment that the suit here was instituted for the benefit of the surety, and with his assent, should be stated in the complainant’s bill.

As the judgment creditor may take out several executions at the same time, the fact that the defendants reside and have property in different counties, need not delay him in the commencement of proceedings here. The fact of the residence of Brown in the county of Montgomery, and that he had lands there which were subject to the lien of the judgment, appeared upon the face of the complainant’s bill. It was not necessary, therefore, for the defendants to set up those facts by way of defence in their answer. The decree of the vice chancellor must be affirmed, with costs.