31 N.J.Eq. 763 (N.J.Err. & App. 1879), Graves v. Coutant

Citation:31 N.J.Eq. 763
Opinion Judge:SCUDDER, J.
Party Name:ELIZA A. GRAVES, appellant, v. EBURN H. COUTANT, respondent.
Attorney:Mr. Leon Abbett, for appellant. Messrs. Collins & Corbin, for respondents.
Court:Supreme Court of New Jersey
 
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Page 763

31 N.J.Eq. 763 (N.J.Err. & App. 1879)

ELIZA A. GRAVES, appellant,

v.

EBURN H. COUTANT, respondent.

Court of Errors and Appeals of New Jersey.

November Term, 1879

1. If a person purchases land of a vendee, with notice of the vendor's equitable lien for purchase-money, such purchaser will be charged with the same trust as the vendee.

2. The defence of a bona fide purchaser must be clearly and unequivocally set up in the answer, with the particulars of the purchase, and must be distinctly proved.

3. The claim of a vendor's lien for purchase-money, is one of peculiar equitable cognizance, and a vendor having no judgment or execution which binds the land, does not stand in the position of a creditor at large without remedy against the land in equity.

4. The recovery of a judgment at law for the unpaid purchase-money, will not merge or affect the vendor's lien.

5. The limitation of actions, if it be a defence against a vendor's lien, will not run while an action is pending in another state for the recovery of the debt, and the time of limitation must date from the judgment.

6. Where, by the law of a state, a vendor's lien for purchase-money is recognized, a discharge in bankruptcy of the vendee or his purchaser with notice, will not discharge the land.

On appeal from a decree advised by the master, Henry C. Pitney, esq., who stated orally the following reasons for the decree:

This is a bill filed by Eburn H. Coutant against Eliza Annette Graves, seeking to charge certain lands of the defendant, in the county of Hudson, and also all proceeds of those lands--such of them as have been sold--in the hands of the defendant, for the purpose of paying a judgment recovered by Mr. Coutant, in the supreme court of the state of New York, against Rosewell Graves the husband of Eliza Annette Graves.

The facts upon which the complainant founds his equity for the relief prayed for in this court, are driefly as follows: In 1853, Mr. Coutant conveyed to Mr. Graves, the husband of the defendant, by two deeds, each comprising the equal undivided one-half part of the premises in question, and therefore amounting in substance to one deed, certain lands in Bergen Neck, in the county of Hudson, of considerable value. The consideration money expressed, if I recollect, is $50,000. Shortly afterward some dispute arose between Coutant and Graves with regard to the value of certain parts of the property, and with regard to the payment of the purchase-money. The particulars of that dispute I have not gone into very carefully, but the result was that, shortly after the conveyance, an action was brought by Graves against Coutant, in the supreme court of the state of New York. To that suit Coutant filed a counter-claim, or set-off, setting up, among other things, that Graves was indebted to him for a part of the purchase-money on the sale of the Hudson county property. That suit went on to trial and was heard before Judge Brown of the supreme court, and, some time previous to the 1st of March, 1860, Judge Brown made a finding of facts, which is found on pages 16 and 17 of the judgment roll of the supreme court offered in evidence, which is in the nature of a special verdict, by which he found that the Hudson county land had not been paid for, and stated the amount of money due on it. There was no judgment entered at that time, because Judge Brown ordered a re-argument on some other minor matters. Subsequently counsel were heard on those matters, and on the 5th of March, 1860, judgment was rendered in favor of Coutant, against Graves, for $6,344.10 besides costs. At or about the time of the rendering of that judgment, Graves conveyed the property in Hudson county, to Jacob R. Wortendyke, who conveyed it back to his wife, the defendant, the nominal consideration in both deeds being $1,000. An appeal was taken from the judgment in New York, to the general term of the supreme court, which affirmed the judgment, some time in 1863. A re-argument was ordered, and the judgment was again affirmed. It was twice heard in the supreme court, and both times the judgment was affirmed. The last affirmance was in 1865. An appeal was then taken by Graves to the court of appeals of New York. Pending that appeal, in 1868, Graves, who had previously been a man of means, became a voluntary bankrupt. In 1871 he was discharged from his debts as a bankrupt, and in 1873 died.

In 1875, the case in the court of appeals, of Graves, appellant, and Coutant, appellee, was reached, and the appeal dismissed, and that judgment of dismissal was made the judgment of the general term, as appears by the judgment record. Shortly after the rendering of that judgment, the complainant filed his bill herein, in this court, setting out these facts, and claiming a decree in the form stated, and relying particularly on two grounds. I will consider those two grounds separately. First, he says, he is a general judgment creditor, not a judgment creditor in this state, but a general creditor by a debt which has been absolutely fixed by the judgment of a sister state, and that, as such judgment creditor, under the peculiar circumstances of this case, he has a right to come into the court of chancery, and take this property, of which he alleges Mrs. Graves is not a bona fide purchaser, but which was conveyed in fraud of this very debt, and appropriate it to the payment of his debt.

A very ingenious argument was addressed to me, on the part of the complainant, in support of this contention, and authority has been cited from sister states, and the case has been stated to be an exception to the rule laid down by Chancellor Runyon, in the case cited of Davis v. Dean, 11 C. E. Gr. 436, where it was held that a man must have a judgment and execution in this state before he can reach lands in New Jersey. I am unwilling to follow the argument of the counsel for the complainant on that point. I think it is founded on a misapprehension of the law. I think this case is an exception to the case just referred to, in that here the judgment debtor is dead, and, under its peculiar circumstances, there can be no other remedy. The creditor may be said to have exhausted his remedy at law, and, unless this court can relieve him, he is without remedy. But the difficulty is, that I do not know of any equity in New Jersey by which the court of chancery can be called upon to appropriate land for the payment of a debt of a decedent. Judgment liens upon land in New Jersey are acquired by virtue of the statute which requires judgment and execution. And where they are sold to pay the debts of a decedent, they are sold by virtue of the statute. And, although there are abundant authorities from sister states in favor of complainant's contention, I do not think they apply here, whatever may be their soundness in the states where they were made. I will state to counsel, further, that I have an impression--which I have not followed very far--that the court of chancery of this state did at one time assume the jurisdiction of applying the lands of decedents to the payment of their debts, in the course of the administration of their estates.

In 1743, the colonial legislature passed an act, found in Allinson 129, by which, for the first time, I believe, in the state of New Jersey, land could be subjected to the payment of debts or judgments, and the first section of that act declares, in round terms, that land shall be an asset for the payment of debts, in all respects, the same as personal property. In 1784 the orphans court act was passed, and the eleventh and twelfth sections of that act provided for the sale of lands to pay debts of decedents, where one of the heirs or devisees was a minor. In 1786 an act was passed which included all lands, whether of minors or not. In the meantime, the act of 1743 remained in force, until 1799, when it was repealed, and substituted for it was Judge Paterson's act, which provides for the sale of land by sheriffs & c.-- substantially our act, as it remained in force many years. But I happen to know that just about that time the court of chancery did assume jurisdiction to apply lands of a decedent to the payment of his debts, by a bill filed for that purpose. I have a case in my mind which arose in Morris county, the case of John Jacob Faesch, but whether the bill was filed just before or just after the act of 1799, repealing the act of 1743, I do not know. I have an impression that possibly the court of chancery, under the very wide jurisdiction it assumed under the colonial authority, and by virtue of the first section of the act of 1743, may have assumed that sort of jurisdiction, but I am not aware that is has ever been exercised since. In fact, I think the settled rule now is, that where a man dies, leaving an estate of land, you can only get at that to pay debts, if you have not a judgment and execution, through the orphans court. However, I do not pretend to have followed the subject out; I do not know that I am fitted for it; I am not an historical expert of New Jersey law.

I decline to advise a decree on the first ground.

On the second ground, however, I think quite differently. The second ground on which the complainant asks a decree is, that the debt evidenced by the...

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