My vote for reversal in this case is based upon the ground that the court of chancery was without jurisdiction to entertain the cause.
The bill filed is in the nature of a creditor's bill to enforce the collection of a judgment obtained by the complainant in the second judicial district court of the county of Hudson against the appellant James J. Asea, who at one time was the owner of certain real property which he and his wife had conveyed to one Mildred Hartman, and which property was reconveyed by the latter back to the said Ramza Asea, wife of the judgment debtor.
It is conceded that no further steps were taken by the creditor before filing its bill of complaint than to cause an execution to be issued out of the district court against the personal property of the defendant James J. Asea, which execution was returned unsatisfied. A judgment entered in a district court is not a lien on real estate, and it is undisputed in the case, that the creditor had no lien by virtue of his judgment on any real estate which was owned or had been owned by the judgment debtor at the time of the filing of the creditor's bill.
The bill was filed upon the theory that the conveyance made by the judgment debtor was a voluntary conveyance, and, therefore, fraudulent.
It is not denied that such a bill would not lie were it not for chapter 213 of the act of 1919, entitled "An act concerning *Page 605 fraudulent conveyances, and to make uniform the law relating thereto," which, by section 9, provides: "Where a conveyance or obligation is fraudulent as to a creditor, such creditor, when his claim has matured, may, as against any person, except the purchaser for a fair consideration, without knowledge of the fraud at the time of the purchase, or one who had derived title immediately or mediately from such a purchaser (a) have the conveyance set aside or obligation annulled to the extent necessary to satisfy his claim, or (b) disregard the conveyance and attach or levy upon the property conveyed."
Article 10 of the state constitution, placitum 1, among other things, declares: "The several courts of law and equity, except as herein otherwise provided, shall continue with the like power and jurisdiction as if this constitution had not been adopted."
Article 6 of the constitution, section 1, placitum 1, declares: "The judicial power shall be vested in a court of errors and appeals in the last resort in all causes as heretofore; a court of chancery; a prerogative court; a supreme court." * * *
It is to be observed that the phrase "as heretofore" applies to the courts mentioned. Reading these two constitutional declarations together or separately, we are constrained to start in with the proposition that the court of chancery and the supreme court are vested with the judicial powers, as were exercised by these courts before the adoption of the constitution.
That the framers of our constitution clearly contemplated that the powers and jurisdiction of the courts of chancery and the courts of law shall be kept and exercised by these courts separately and distinctly from each other, and that such powers and jurisdiction were not to be curtailed or in anywise limited, extended or encroached upon by legislative enactment is strikingly manifested by article 4, section 7, placitum 10 of the constitution, which declares: "The legislature may vest in the circuit courts or courts of common pleas within the several counties in the state chancery powers, *Page 606 so far as relates to the foreclosure of mortgages and sale of mortgaged premises."
The key, therefore, to what such powers and jurisdiction of the court of chancery were before the adoption of the constitution of 1844, must be sought for in the statutes and in the common law, as declared by judicial decisions, which prevailed prior to such adoption.
On behalf of the respondent it is urged that, by virtue of section 9 of the statute of 1919, the legislature made it unnecessary that there should be a judgment lien upon the real property of a defendant in order to entitle him to file a creditor's bill and have the conveyance set aside so far as his judgment was concerned.
A careful reading of the statute of 1919, supra, makes it plain that the statutory provision, so far as it leads to an abrogation of the fundmental requirements of a creditor's bill, which requirements were essential to give jurisdiction to the court of chancery, to entertain such a cause at common law, is clearly in violation of the powers and jurisdiction vested in the court of chancery as prescribed by the constitution.
Restricting my views to the facts of the instant case, namely, that the bill of complaint does not show that the respondent had a judgment which was a lien upon real estate, and further that he did not have an adequate remedy at law, both of which were essential averments in order to give a court of chancery jurisdiction at common law, it is clear to me that the court was without jurisdiction to entertain the bill and should have dismissed it on that ground.
In Wales v. Lawrence, 36 N.J. Eq. 207, that distinguished jurist, Vice-Chancellor Van Fleet (at p. 209) says: "It is a well established rule of equity jurisprudence that a judgment creditor is not entitled to the aid of a court of equity for the enforcement of this judgment, until he has exhausted his remedy at law. This is an indispensable preliminary, which he must show affirmatively to entitle himself to a footing in equity." Said Chancellor Green, in Robert v. Hodges, 16 N.J. Eq. 299: "Equity will not, of course, grant its aid to *Page 607 enforce legal process. It must first appear that the legal remedy of the complainant is exhausted."
In Bigelow Blue Stone Co., 27 N.J. Eq. 392, Chancellor Runyon (at p. 393) says: "When a creditor comes into equity to reach the equitable interest of his debtor in land, he must show a judgment which would in case the legal title to the property were in the debtor, be a legal lien thereon and an execution returned unsatisfied. This will show that his remedy at law is exhausted, and will entitle him to the aid of equity. It is not necessary in such case to show a levy of an execution on the land which he seeks to recover. Robert v. Hodges, supra; Dunham v. Cox,10 N.J. Eq. 437; Cuyler v. Moreland, 6 Paige 273."
If the provision of section 9 of the statute of 1919, supra, is to be read in the sense that it shall be no longer necessary that a judgment be a lien upon the land of the debtor in case the legal title to the property were in him, and no longer necessary that an execution should be issued upon such judgment, and that the same be returned unsatisfied, in order to give the court of chancery jurisdiction of a creditor's bill then it is clear to me that the provision is unconstitutional, for the obvious reason that the legislature was without power, under the constitution, to change or alter the fundamentals of the jurisdiction of the court of chancery, which fundamentals were established and existed before the adoption of the constitution of 1844.
A reading of the statute of 1919 makes it manifest that it is inimical, in some respects, to our judicial system, where law and equity are administered by separate tribunals, established by our constitution for that particular purpose.
The statute has patent earmarks, indicating that it was designed for only such states where law and equity are administered by the same tribunal, and that the statute was evidently copied from similar statutes existing in sister states, where law and equity are not made distinct matters, so far as the acquiring of jurisdiction by their courts is concerned.
Section 12 of the act provides: "This act shall be so interpreted and construed as to effectuate its general purpose to make uniform the laws of the state which enact it." *Page 608 Section 13 provides: "This act may be cited as a Uniform Fraudulent Conveyance act."
Whether all the provisions of the statute were within constitutional authorization was apparently overlooked by the legislature in a hasty effort to make uniform the laws of this state, for otherwise it would not have consciously enacted section 9 and several other sections, the latter not being drawn into question here, which are clearly in violation of constitutional declarations.
For affirmance — THE CHIEF-JUSTICE, TRENCHARD, MINTURN, BLACK, CAMPBELL, LLOYD, WHITE, VAN BUSKIRK, McGLENNON, HETFIELD, DEAR, JJ. 11.
For reversal — PARKER, KALISCH, KATZENBACH, KAYS, JJ. 4.
*Page 1