Moran v. Dawes , 1 Hopk. Ch. 365 ( 1825 )

The Chancellor.

In the case of Wiggins against Armstrong, 2 John. ch. 144, the late chancellor held, that a creditor before judgment, is not entitled to this interposition against his debtor. The English cases applicable to this question, were reviewed by the late chancellor, in that case; and they fully establish the conclusion, which he deduced from them. This question is therefore, entirely settled by authority.

Our laws determine with accuracy, the time and manner, in which the property of a debtor ceases to be subject to his disposition, and becomes subject to the rights of his creditor. A creditor acquires a lien upon the lands of his debtor, by a judgment; and upon the personal goods of the debtor, by the delivery of an execution to the sheriff. It is only by these liens, that a creditor has any vested or specific right, in the property of his debtor. Before these liens are acquired, the debtor has full dominion over his property; he may convert one species of property into another ; and he may alienate to a purchaser. The rights of the debtor and those of the creditor, are thus defined by positive rules; and the points, at which, the power of the debtor ceases and the right of the creditor commences, are clearly established. These regulations can not be contravened or varied, by any interposition of equity. If courts of equity could by injunction, compel a debtor to hold his property until a judgment should be obtained against him, they would indirectly but in effect, alter these regulations of positive law.

The case now before the court, does not rest upon the doctrines concerning fraudulent conveyances. The defendant is about to sell his lands, by public auction, in order, as the bill alleges, to elude the judgment which the complainant may recover. The meditated fraud consists in an intention not to pay the judgment, which may be recovered ; and the conversion of the defendant’s lands into money, may prevent or impede the effect of an execution against his property. But such an intention does not deprive a debtor of his power of alienating to any person, who may purchase, in good faith. If a judgment should be recovered and an. execution against his property, should prove ineffectual, his person will remain liable. Here, is no collusion or fraudulent concert with any person, as a purchaser or trustee. The sales which the defendant is about to make, may be wholly free from any fraud, between him and the purchasers. No decree for relief, can be made upon this bill. The sole object of this bill, is the injunction; and the sole object of the injunction, is, to compel the defendant to hold his lands, until a judgment may be recovered against him.

It is not necessary here, to inquire how far the remedies given by our laws to creditors against debtors, are adequate to the ends of justice. Some of my views of that subject, were given, in the case of Donovan against Finn,, 1 Hopk. eh. 59. It suffices for the determination of this question, that by our law, the complainant has no lien or right in the lands of the defendant; that the defendant may, notwithstanding the pendency of the suit against him, sell his lands ; and that equity does not vary these legal rights.

The rights of these parties in this respect, are not varied by the nature of the cause of action, or by the verdict. A creditor whose debt may be acknowledged or free from doubt, acquires no lien, otherwise than by a judgment; and a cause of action arising from tort, gives no lien, in any other manner. Nor does a verdict create any lien. Neither the existence of a just demand, nor the moral obligation of a debtor, nor the commencement and progress of a suit, can give that right, which our laws assign only to a final judgment.

In every view, it is clear, that this injunction must be dissolved;