
    Dewitt C. Le Fevre, Resp’t, v. Charles W. Phillips, Impleaded, etc., App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 17, 1894.)
    
    Creditor’s suit—Exhaustion oe legal remedies.
    A creditor’s suit is maintainable without exhausting the usual legal remedies, where no execution against the judgment debtor can be issued and returned unsatisfied.
    Appeal from an interlocutory judgment, entered on an order overruling a demurrer to the complaint.
    
      James II. Waring, for app’lt; Charles S. Cary, for resp’t.
   Lewis, J.

It is alleged in the complaint that the plaintiff recovered a judgment against one John F. Good and another for $2,642.50 on the 10th day of May, 1886. That the judgment roll in said action was duly filed in the clerk’s office of the county of Cattaraugus on said day. That it still remains unpaid and unsatisfied in full. That the county clerk of the county, in docketing said judgment, omitted to index the same against said defendant John F. Good; and that, by reason of such omission, said judgment did not appear on said docket on what is called the “Good Combination,” and therefore the judgment did not become a lien upon the real property of the defendant Good. In the year 1891 the said Good died, intestate, leaving no personal property of any description. That, at the time of the recovery of said judgment, he was the owner of valuable real estate in the county of Cattaraugus, of the value of several thousand dollars. After the recovery of said judgment, and on the 1st day of December, 1890, Good executed and delivered to the defendant, Charles W. Phillips, a certain instrument, in writing, purporting to convey to said Phillips, in consideration of the sum of $300, said real estate. Said deed was duly recorded in the proper clerk’s office. That said deed was delivered to said Phillips for the purpose of securing the repayment to him of said sum of $300, with interest, on an agreement on the part of said Phillips with Good that, on the repayment of said sum, he would reconvey the lands to Good. That Phillips did not purchase and become the grantee-of said lands for a valuable consideration and without notice of plaintiff’s judgment, but, on the contrary, up to the time of the death of said Good, he held said instrument of conveyance, and only assumed to hold the same as security for the paj'ment of said money, and as, in effect, a mortgage thereon. That, after the death of said Good, Phillips, for the first time, conceived the fraudulent purpose and design of assuming to hold under said conveyance the absolute title to said lands, as the Iona fide purchaser thereof, free and discharged from said judgment. That said Phillips knew of the existence of plaintiff’s judgment, and that his claim, as aforesaid, since the death of Good, is made with the fraudulent intent on his part to hinder, delay and defraud the creditors of Good, and particularly the plaintiff. That said instrument of conveyance, in connection with the record of said judgment, is a cloud upon the title of said lands, and an obstruction to the collection of the judgment. That, at the time of said transaction, said Good was indebted to divers persons in large sums of money, and was unable to pay his debts, as said' Phillips well knew. And that said defendant claims that the plaintiff’s judgment is not, and ought not to be a lien upon the premises, by reason of the omission of the clerk to index the same as against said Good, and claims that he is a Iona fide purchaser thereof, when in truth and in fact he is not such, and has not in any manner been prejudiced by reason of the omission of the clerk to properly index the jndgmcnt. Judgment was demanded against the defendant that plaintiff’s judgment be adjudged to be a lien upon the land described superior to all the liens, rights, titles and equities of the defendant; and that the clerk’s docket be amended nunc pro tunc by indexing and docketing the same against said Good; and that the conveyance to the said defendant be set aside, or adjudged to be subordinate and subject to the lien of plaintiff’s said judgment; and that the land be sold, and the proceeds of the sale applied to the payment of plaintiff’s judgment, and the surplus, if any, deposited with the treasurer of the county of Cattaraugus, to the credit of the action ; and that the plaintiff have judgment for such other or further relief as the court shall deem just. The defendant demurred to the complaint on the grounds : (1) There is a defect of parties defendant, in that the clerk of the court should have been made a party defendant; and (2) that the complaint does not state facts sufficient to constitute a cause of action. The demurrer was overruled.

St. Rep., Yol. LXII. 84

The only question presented by this appeal which merits examination is whether the issuing and return of an execution unsatisfied in whole or in part against the judgment debtor, Good, was an indispenssble prerequisite to the right to maintain the action. By the omission of the clerk to properly index the judgment as against Good, it did not become a lien upon the defendant’s real estate. Code Civ. Proc., § 1246. The judgment debtor having died after the entry of judgment, a general execution against his property could not be issued. Id., § 1379. It is provided by | 1380 of the Code that after the expiration of one year from the death of a party against whom a final judgment for a sum of money, or directing the payment of a sum of money, is rendered, the j udgment may be enforced by execution against any property upon which it is a lieu, with like effect as if the judgment debtor was living; but such an execution shall not be issued unless an order granting leave to issue it is procured from the court from which the execution is to be issued, and a decree to the same effect is procured from a surrogate’s court which has duly granted letters testamentary, etc. This judgment is not within the provisions of this section, for, as stated, it never became a lien upon the judgment debtor’s property. It is a general rule that, in actions brought by creditors to set aside conveyances of a judgment debtor for fraud, an execution must be issued, and returned unsatisfied in whole or in part, before an action can be maintained. It may be observed that in this action it is claimed that the conveyance was made with intent to defraud the creditors of the judgment debtor. The good faith of Good in giving the deed, and the motives of the appellant in receiving it, are not in any respect assailed or questioned. Neither of them, so far as appears from the complaint, was aware of the omission of the clerk to properly index the judgment at against Good. Good, not knowing at the time of executing the conveyance to Phillips that the judgment was not properly indexed as against him, could not have had any fraudulent intent in giving the deed as against the plaintiff’s judgment. No fraud is charged against the appellant during the lifetime of Good. It is alleged that he first conceived the idea of claiming the instrument was a conveyance of the fee of the land after Good’s death. Therein consisted the fraud which is charged against him in the complaint. While it is stated generally in the complaint that Phillips knew of plaintiff’s judgment, it is not alleged that he knew of it at the time of receiving the deed; so that the only relief probably which the plaintiff could, have would be to have the deed declared a mortgage security only for the indebtedness of $300. "Whether this action comes within the provisions of § 1871 of the Code, which provides that, where an execution against the property of a judgment debtor issued out of a court of record has been returned wholly or partially unsatisfied, he may maintain an action against the judgment debtor and any other person to compel the discovery of any thing in action or other property, belonging to the judgment debtor, may not be free from doubt. But, if it be assumed that it does, is not this an exception to the rule that, to maintain such an action, an execution must be first issued, and returned unsatisfied? The judgment debtor having died after the entry of judgment, a general execution against his property could not be issued. Code Civ. Proa, § 1379. Had this judgment been a lien upon the defendant’s property, an execution might have been issued after obtaining an order from the court granting the judgment; and a decree of the proper surrogate’s court consenting thereto. The plaintiff could not obtain such relief, because of the fact that his judgment was not a lien upon the property of the judgment debtor.

It was held in Re Holmes, 16 N. Y. Supp. 51, and 131 N. Y. 80; 42 St. Rep. 64, where it was alleged that the judgment debtor had transferred his property in fraud of his creditors before the recovery of the judgment, that the court might assume, for the purpose of deciding a motion for leave to issue execution, that the claim of fraudulent transfer was well founded, and grant the motion, notwithstanding the judgment was not in fact alien on property. But no such assumption should bo indulged in here ; for, concededly, the judgment was not, and could not be, a lien upon the debtor’s property. It was held in Nat. Tradesmen's Bank v. Wetmore, 124 N. Y. 241; 35 St. Rep. 316, that the rule requiring the issuing and return of an execution as a condition precedent for the maintaining of a creditor’s action was not of universal application. The opinion of the court, prepared by Bradley, J., discusses the reasons and authorities for the general rule requiring the issuing and returning of the execution in such cases, and concludes that it is not so universal in its application as to deny to a party the interposition of the equity powers of tbe count when the situation is such as to render impossible the aid of a couit of law to there take the preliminary steps to produce what ordinarily may be treated as the condition precedent to the application for equitable relief. We incline to the opinion that this case presents an exception to the general rule mentioned, and that the plaintiff, under the allegations of his complaint, was entitled to the relief asked for; and the order and interlocutory judgment appealed from should therefore be affirmed, with leave to the defendant to " serve an answer within 20 days, on payment of the costs of the demurrer and of this appeal.

All concur  