Opinion
12-24-1924
KESSLER et al. v. SMITH et al.
Stamler, Stamler & Koestler, of Elizabeth, for complainants. John F. Reger, of Somerville, for defendants.
Creditors' bill by Philip F. Kessler and others against Frederick Smith and others to set aside alleged fraudulent conveyance. Sale decreed, but security required from complainants only as against expenses of sale.
Stamler, Stamler & Koestler, of Elizabeth, for complainants.
John F. Reger, of Somerville, for defendants.
BUCHANAN, V. C. Subsequent to the filing of the conclusions in this cause (128 A. 598), argument has been had as to the requirements that complainants give bond to secure the defendants $5,000 on sale of the interest conveyed by the conveyance under attack, a point that was not argued on the original hearing, and as to which the conclusions followed. Horton v. Bamford, 79 N. J. Eq. 356, 81 A. 761. Whether or not the course indicated in Horton v. Bamford be proper under certain circumstances, consideration convinces me that there is neither necessity nor propriety in such a requirement in the instant case, and that security should be required from complainants to defendants only as against the expenses of sale.
Complainants are attaching creditors. There is no fi. fa. issued out of the law court. In such case, under the existing practice, an execution may be issued out of this court. The decree in the present case may so direct, providing for a sale of the equitable and legal interest of Frederick Smith in the lands in question, so that the purchaser may stand in the shoes of Frederick Smith and have the same equitable rights to the new greenhouse, or the increased value by reason thereof, on a partition or sale in partition, that Frederick Smith would have had prior to the conveyance now set aside in part. The fi. fa. will direct the payment first, out of the proceeds of sale, of $5,000 to the defendants Charles and Alice Smith, and the balance to be subject to the attachment. Charles and Alice Smith can protect themselves by bidding at the sale, as a mortgagee or any other security holder would do at foreclosure sale.