Opinion
03-04-1890
BURNE et al. v. KUNZMAN et al.
J. H. Meeker, Jr., for complainants. J. A. Fay, for defendants.
A bill by judgment creditors to set aside conveyances by their debtor.
J. H. Meeker, Jr., for complainants. J. A. Fay, for defendants.
VAN FLEET, V. C. No relief can be given to the complainants. Their bill is founded on two judgments. As to the first, all that need be said is that, as to that, the complainants have not exhausted their remedy at law. The judgment is against two,—Kunzman, and one Andrew F. Buckhardt. The complainants have a levy on some property of Buckhardt's which has not been sold. For aught that appears the property covered by the levy may be sufficient to pay the complainants' debt. The rule is settled that a judgment creditor has no right whatever to the aid of a court of equity until he has exhausted his remedy at law.
The complainants' second judgment was recovered December 27, 1888. No proof was made as to when the debt was contracted on which that judgment is founded. The mortgage and sale which the complainants seek to have set aside, as fraudulent as to them, were made in August, 1888. To warrant the court in extending to the complainants the aid they ask they were bound to prove one of two things; either that they were creditors of Kunzman, in respect to the debt on which their second judgment is founded, when the mortgage and sale were made, and that the mortgage and sale were made with design to defraud creditors, or that the mortgage and sale were made with the intent to defraud future creditors. Neither fact is proved. Indeed, I think as the proofs now stand there is not enough evidence of fraud in the case to support a finding that the mortgage is not an honest paper. The complainants' bill must be dismissed with costs.