McArthur v. Hoysradt , 11 Paige Ch. 495 ( 1845 )

The Chancellor.

The vice chancellor was clearly wrong, in supposing that this bill was not properly framed, as a creditor’s bill, to reach any interest,which the defendant J. A. Hoysradt had in the personal estate of his deceased father, or in any other property or things in action, or equitable interests belonging to him. It was not necessary, for this purpose, that the personal representatives of the father should be parties to this suit. For the interest of the judgment debtor in his father’s estate, if it was improperly included in the deductions made from the purchase money of his interest in the farm, could have been assigned by him to a receiver, in the usual way. And it might have been recovered, by such receiver, either upon an application to the surrogate, or by a bill in this court, against such personal representatives. Or the receiver might have sold that interest, at public or private sale, under the direction of the court, and have applied the proceeds of such sale to the satisfaction of the complainants’ debt. An execution having been issued and returned, unsatisfied, before the judgment was assigned to the complainants, it was not necessary for them to go through with the formality of issuing another execution, subsequent to such assignment. (Gleason v. Gage, 7 Paige’s Rep. 121.) The bill should not, therefore, have been dismissed as to J. A. Hoysradt: even if these complainants had no claim against his'co-defendant. But the usual decfee should have been entered, for the appointment of a receiver of the personal property of the judgment debtor, mentioned in his answer as belonging to him at the commencement of this suit, and of any other property or equitable interest which he then had: and also of his two-elévenths of two-thirteenths of the real estate of his deceased father, subject to the life estate of Thomas, as tenant by the curtesy, in two-thirds of the share of his deceased wife. That decree should also have contained the usual directions, to the defendant, to assign all such property, effects and claims, to the receiver, and that the receiver should sell such property, and apply the proceeds to the payment of the complainants’ debt and costs. So much of the decree, therefore, as directed the bill to be dismissed with costs as to J. A. Hoysradt, was clearly erroneous, and must be reversed; and a decree must be made against him in conformity with these principles.

The sale of the three-thirteenths of the farm, to the defendant John Hoysradt, after his brother had become insolvent and was about to be sued upon the note upon which the complainants’ intestate was a surety, is certainly open to the suspicion that the principal object of that sale was to defraud creditors, by putting the property beyond the reach of execution. I can see no other reason for applying the whole of the $628,6?, said to be the price of a part of the personal property of his deceased father, in payment of the $1800, agreed to be given for the three-thirteenths of the farm; instead of deducting, from the $628,62, the amount due to J. A. Hoysradt for his distributive share of the personal estate, and for the distributive share of his sister, Mrs. Schoonmaker, which he had previously purchased. Whatever those distributive shares amounted to was clearly an equitable offset, as against the $628,62. And the balance alone could be honestly applied in part payment for the real estate conveyed to the administrator for his own benefit.

The evidence also shows that the $125 note, given to the Silvernails, for their interest in the personal property of the testator, ought not to have been deducted from the purchase money of the three-thirteenths of the farm. That note was given two days after the conveyance of the interest of the Silvernails in the real estate, to J. A. Hoysradt; for which interest he had given his note, with sureties, for $600. The claim for a share of the personal estate, therefore, was a claim against the personal representatives and not against him. And we accordingly find that he was not a party to that note. It is true, Adam A. Hoysradt says it was given at the same timé as the $600 note, and was for a part of the purchase money of the real estate. But in that he is hot only contradicted by other witnesses, but by the date of the note itself. From the evidence, I have not the least doubt that it was given jn payment of the claim which the Silvernails made upon the administrators, for their shares of the personal estate of their grandfáther. And if it was given for J. A. Hoys-radt’s benefit, in any way, it must have been because it was to be deducted from $628,62, owing to the administrators, in case he should pay that note. The judgment of the Hudson River Bank was also deducted from the $1800, as a part of the consideration money of the deed for the three-fourteenths of the farm. But it appears that the horses of J. A. Hoysradt were, at a subsequent date, turned out to, and sold by John Hoysradt for that amount. J. A. Hoysradt received one of the notes taken on that sale. But Best shows that the other note of $80, taken on. that sale, was purchased by him, of John Hoysradt. The amount of that note should therefore be deducted from the $1800.

Although-1 am not prepared to decree the sale of the three-thirteenths of the farm absolutely void, upon the ground of actual fraud, I am satisfied the complainants have a right to the several claims above mentioned, as between them and John Hoysradt; those demands having been improperly deducted from the purchase money of the farm, as against the creditors of the grantor. The decree must, therefore, be reversed as respects John Hoysradt. And he must be directed to pay, towards the debt due to the complainants, the amount of the $125 note and the interest thereon, which was deducted from the $1800, with interest on the amount of such deduction from the 28th of January, 1835, the date of the deed; the amount of the $80 note, sold to Best, with interest thereon from the 20th of March, 1835; and the amount of the two distributive shares of J. A. Hoysradt in the personal estate of his father, with interest on that amount from the date of the deed of the 28th of January, 1835. The several amounts to be ascertained by a reference to a masteri

Neither party is to have costs as against the other, upon this appeal. But the complainants are to have their costs in the court below, against the defendant J. A. Hoysradt. No costs are to be allowed, as between the complainánt and the defendant John Hoysradt, up to this time. But the costs of the reference to ascertain the amount for which John Hoysradt is to be accountable, if the parties cannot agree upon the same without the expense of such reference, are to abide the further order of the court; upon the coming in and confirmation of the master’s report of the amount due.

Decree accordingly.