Opinion
11-02-1893
EDMUNDS v. SMITH et al.
Thos. E. French, for the motion. Her. W. Edmunds, pro sa.
Bill by Herbert W. Edmunds to enjoin Isaac Smith and others from the use of a closet on Smith's premises. A perpetual injunction was granted, and execution for costs ordered to be issued. Smith was released from liability for costs, and applies to vacate the order for execution and proceedings had thereon so far as certain lands conveyed him by his codefendants were concerned. Denied.
Thos. E. French, for the motion.
Her. W. Edmunds, pro sa.
GREEN, V. C. A bill was filed in this court by Herbert W. Edmunds against isaao H. Smith, Benjamin Obekiah, and Hester Obekiah, his wife, to restrain them in the use of a closet on premises in the city of Cape May belonging to Isaac H. Smith, in the occupancy of the other defendants, on the ground that the same was a nuisance. A decree pro confesso was entered, testimony taken, and final decree, dated October 24, 1891, was entered October 27, 1891. This decree perpetually enjoined the defendants from the use of the closet as a sink, etc., and further orders "that the complainant recover against the defendants his costs and charges by him in this behalf sustained, and that an execution do issue therefor in accordance with the rules of this court." The costs were taxed on November 2, 1891, at $74.99. After some arrangement between Smith and the complainant, Smith paid him $25, and took from him this receipt: "Received, Cape May, N. J., August 22nd, 1892, of Isaac H. Smith, twenty-five dollars cash, in consideration of which I hereby release the said Smith from all liabilities and further payment of any sum or sums of money incurred for costs or otherwise in the suit in chancery heretofore existing between said Smith and myself. [Signed] Herbert W. Edmunds." The Obekiahs were the owners of a lot in another part of the city of Cape May at the time the decree was entered in the cause, which they conveyed to Isaac H. Smith by deed dated and acknowledged October 4, 1892, and recorded in Cape May county clerk's office October 5, 1892. On the 9th of October, 1892, this decree was docketed in the supreme court, July 25, 1893, a copy of the final decree and taxed costs was served on Benjamin Obekiah and his wife, and on the 7th of August, 1893, an order was made in the cause that a writ of fl. fa. issue to the sheriff of Cape May county directing him to make the amount of costs remaining due out of the goods and chattels, lands and tenements, of the defendants Benjamin Obekiah and Esther Obekiah, in pursuance of which a writ of fl. fa. was issued, directing the sheriff to make the amount, if necessary, out of the lands and real estate whereof Benjamin Obekiah and Esther Obekiah were seised on the 24th day of October, 1891. Isaac H. Smith, by petition, applies to vacate the order for execution, the execution, and proceedings had thereon, so far as he and the lands conveyed to him are concerned, and to restrain the sheriff from selling said lands by virtue of the execution, on the ground that the payment of $25 was a discharge of the costs; and, next, that at the time of the conveyance to him by the Obekiahs no decree had been docketed in the supreme court. When Smith made the payment to Edmunds of $25 he took from him the paper which is a receipt and release. It must be considered as fully expressing the contract of the parties. At the time it was given, Smith andthe Obekiahs were each of them liable to the complainant for the whole amount of costs. After payment by Smith of $25 to the complainant, the latter released Smith from all liability for costs. This release did not discharge Obekiah, nor Obekiah's property, which was liable for the balance of the bill for costs. By the fifty-sixth section of the chancery act it is provided "that the decree of the court of chancery shall, from the time of its being signed, have the force, operation, and effect of a judgment at law in the supreme court, from the time of the actual entry of such judgment; and all decrees and orders of the court of chancery, whereby any sum of money shall be ordered to be paid by one person to another, shall have the force, operation, and effect of a judgment at law in the supreme court, from the time of the actual entry of such judgment, and the chancellor may order such execution thereon as in other cases." The final decree awarding costs and execution therefor to the complainant, the same being thereafter taxed, became by virtue of this provision a lien upon the lands of Smith and of the two Obekiahs on the 27th day of October, 1891, the time of the actual entry of such judgment. The release to Smith relieved his property from the effect of the decree, but left the property of the Obekiahs still subject thereto. If the Obekiahs had conveyed their property to any person other than Smith, such grantee would have been protected by the proviso of the fifty-sixth section of the chancery act, as follows: "That no decree of the court of chancery, hereafter to be made, shall, as against any person not a party thereto, become a lien upon or bind any lands, tenements, hereditaments, or real estate, other than those specifically mentioned and described in such decree, or in the bill of complaint on which the same is founded, until the parties interested in such decree, or some or one of them, shall have filed in the office of the clerk of the supreme court a statement or abstract of such decree, containing the names of all the parties thereto, designating particularly those against whom it is rendered," etc. But Isaac H. Smith was a party defendant to the suit, and this proviso does not in terms apply to him, and it would seem that an execution levied upon this property cannot be avoided by a conveyance made to him prior to the decree docketed. Rule discharged.