Opinion
02-18-1903
GUY B. WAITE CO. v. OTTO et al.
Mr. Minturn, for complainant. George J. Jaeger, for defendants.
Suit by the Guy B. Waite Company against Peter Otto and another. Defendants demur to the bill. Demurrer sustained.
Mr. Minturn, for complainant.
George J. Jaeger, for defendants.
EMERY, V. C. Complainant recovered a judgment in New York against Peter Otto, one of the defendants, and files this bill to have conveyances made to the defendant Gertrude Otto (the daughter of Peter Otto) of lands in this state set aside as fraudulent against it, and to have its debt, established by the New York judgment, declared to be a lien upon the lands and satisfied by their sale. No judgment has been recovered in this state upon the New York judgment, and the bill is demurred to for that reason. It has always been the law of this state that the creditor of a living debtor, who seeks to set aside alleged fraudulent conveyances of land by his debtor, and to charge lands as held in trust for the debtor with the payment of his debt, must have a lien on thelands for the debt by judgment, attachment, or other lien. Davis v. Dean, 26 N.J.Eq. 436 (Runyon, Ch., 1875), also settles that a foreign judgment does not create such a lien. Mechanics', etc., Transp. Co. v. Borland (N.J.Ch.) 31 Atl. 272 (Pitney, V. C, 1895), is relied on as changing the rule as to the effect of foreign judgments declared in Davis v. Dean, and as further deciding that, where a bill alleges that judgment recovered upon the debt was recovered in the court of a foreign state, and that the debt is due, and that there is no other estate or property on which to levy, and these allegations are admitted by a general demurrer, complainant has a right to relief, and the demurrer should be overruled. Vice Chancellor Pitney's decision, however, did not affect, and was not intended to affect, the decision in Davis v. Dean, for in the Borland Case the bill was filed against the estate of a deceased debtor, who had died insolvent. Haston v. Castner, 31 N.J.Eq. 697 (Err. & App. 1879), had decided that by force of our statutes debts due from deceased debtors to creditors at large were liens on the lands of which he died seised, and that a creditor at large, whose claim had been admitted by the executor, had a standing to file a creditors' bill to set aside a conveyance made by the deceased to defraud his creditors. Borland, the debtor, being dead, Vice Chancellor Pitney, in his decision, expressly follows Haston v. Castner in relation to the lien of a creditor at large against the estate of deceased debtors, and made the further decision that the recovery of a judgment upon the debt in the foreign state, as it was conclusive upon the question of debt, was a sufficient establishment of it for the purpose of filing a creditors' bill. The decision, therefore, does not apply to the present case, where the debtor is living, and is a party to the suit. This case is governed by Davis v. Dean.
The demurrer, therefore, must be sustained.