
    George Edward Heyl, Respondent, v. Henry A. Taylor, Appellant.
    First Department,
    April 8, 1910.
    Debtor and creditor — creditor’s suit — action to enforce lien on lands in foréign State.— remedy under foreign law.
    A judgment creditor, on discovering that the only property owned by his debtor is real estate situated in another State, cannot maintain a suit in equity , in this State for the appointment of a receiver and a decree directing the debtor to convey to the receiver so that lie may apply the proceeds in satisfaction Of the judgment, unless he shows facts calling for the interposition of equity. The creditor must pursue the legal remedy afforded by the laws of the other State.
    Even if the lands of a debtor are situated in this State the judgment creditor - cannot sue in equity to subject the same to the lien of his judgment, but must . proceed by execution.
    - Appeal by the defendant, Henry A. Taylor, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Hew York on the 20th day of December, 1909, upon the decision of the court, rendered after a trial at the Hew York Special Term, overruling the defendant’s demurrer to the complaint.
    
      Oscar B. Bergstrom, for the appellant.
    
      I. Batch Louis, for the respondent.
   Miller, J.:

The complaint alleged the rendition and entry of a j'udgment in a court of record- in this State in favor of - the plaintiff and against the defendant; the issuance and return of an execution unsatisfied ; the examination • of the j’udgment debtor in proceedings supplementary to execution ; the discovei’y on the examination that the only property which the j'udgment debtor had, aside from a small amount of personal property, was- certain real estate situate in the State of Connecticut. It prayed for the appointment of a receiver, that-the defendant be directed to convey said -real property to such receiver and that the latter be authorized and directed to sell the same or so .much thereof as might be necessary and apply the proceeds to the satisfaction of the plaintiff’s judgment.

Actions to compel a judgment debtor to make discovery of his property are now regulated by sections 1871 et séq. of the. .Code of Civil Procedure. Section 1873 and section 1874 provide what property may be reached by the final judgment in such an action, i. e., personal property and an interest in a land contract. The statute does not provide that the real property of the' judgment debtor may be sold, pursuant to a' final judgment in such an action, for the obvious reason that such property may be sold on execution; and other sections of the Code of Civil Procedure prescribe how such sales must be conducted and how redemption therefrom may be made. (See §§ 1432 et seq.) Of course, the equitable interests of a judgment debtor can only be reached by an action in equity, but it is elementary that the plaintiff’s legal remedies must first be exhausted, and where the creditor seeks to set ¿side a conveyance by the debtor of real property as fraudulent, the. creditor must first obtain a lien. ‘

If the real' property in question here were situate in this State, •the legal title being in the judgment debtor, the plaintiff could only obtain a sale of it in the. manner pointed out by the statute; and the judgment debtor would have a. year and creditors three months after the expiration of such year to redeem. • But it is asserted that ■ a court of equity may render a decree affecting the title to property beyond its jurisdiction which it could hot fender if sucli property were within its jurisdiction; that the mere fact that the court has no jurisdiction of the property gives it jurisdiction to compel a conveyance of it under the guise of a judgment m personam. Ho doubt, in. a proper case, that may be done, but surely some fact must exist calling for the interposition of equity. Actions to avoid transfers for fraud, to reach equitable Interests, to enforce trusts, to. compel the specific performance of contracts, are matters of equitable cognizance; and having jurisdiction of the parties, no reason can be perceived why a court of equity might not render a judgment in personam, the direct result of which might be to affect the: title to property beyond the jurisdiction of the court. But that, should not be done unless the case is one for equitable cognizance.;

It is familiar law that real property is governed by the lew loci rei sites. ' The record does not disclose what the statutes of Connecticut provide with respect to the sale of real property on execution or the right of a judgment debtor or his creditors to redeem from such sales; but those statutes, whatever they be, must govern sales of the real property of judgment debtors. Legal remedies áre open to the plaintiff, and the fact that he must pursue them in the courts having jurisdiction, of the property is no reason why this court should make a decree which could not be made if the property to be ' affected were within its jurisdiction.

It must be admitted that there is some support in the books of the plaintiff’s right to maintain this action. Many dicta can be found to the effect that our courts will compel judgment debtors to turn over lands in other States for the benefit of .their creditors, for which Mitchell v. Bunch (2 Paige, 606) is cited as an authority. The complainant in that case was a resident of Havana; the defendant a resident of Carthagena. The bill alleged, inter alio.;, that by reason of a war existing between Spain and Colombia, the complainant could not prosecute in the courts of the latter country to recover the amount of his judgment, and prayed a decree and for satisfaction of the judgment “ out of the property, dioses iii action,

. and equitable interests of the defendant.” The decision was made on an application to discharge a ne exeat. At the outset of his opinion the chancellor declined to pass on the question whether real property out of the jurisdiction of the court could be applied in satisfaction of the complainant’s judgment. The only other case in this State in which the question appears to have been even indirectly involved is Bailey v. Ryder (10 N. Y. 363). That was a creditor’s bill to reach equitable interests of the judgment debtor in land situate in the State of Indiana. While the bill was dismissed as to the answering defendants, who, the plaintiff alleged, held title as trustees for the judgment debtor, the court directed the judgment debtor to make a conveyance of forty acres of the tract involved, upon his admission that he had title thereto. That was done upon the authority of Mitchell v. Bunch (supra) apparently without independent consideration of the question, and evidently without serious objection. It is to be noted that the bill did state a ease for equitable cognizance. While the court did direct a conveyance of the forty acres to which the judgment debtor had the legal title, I do not think that' that case can be said to be an authority for the proposition that jurisdiction can ever be conferred upon a court ■merely because the property sought to be -reached is beyond its jurisdiction. In Massie v. Watts (6. Cranch, 160) Chief Justice Marshall said : “This court is of opinion that, in a case of fraud, or trust, or of contract, the jurisdiction of a court of chancery is sustainable-wherever the person be found, although lands not within the jurisdiction of that court may be affected by the decree ; and that statement was quoted by Cullen, J., in Chase v. Knickerbocker Phosphate Co. (32 App. Div. 400). I can think of no case and have found none from such research as I have been able to make to add to that classification.

The judgment should be reversed, with costs, and the demurrer sustained, with costs, with leave to plaintiff to serve an amended complaint upon payment of costs in this court and in the court below. ". ■'

Ingraham, P, J., Laughlin, Clarke and Soott, JJ., concurred.

Judgment reversed, witli costs, and demurrer sustained, with costs, with'leave to plaintiff to amend on payment of costs.  