The plaintiff, a judgment creditor of the defendant St. John, commenced this action to obtain a judgment of the Supreme Court for the setting aside and cancellation of two prior judgments which St. John had confessed in favor *Page 245 of the defendant Dwight, on the ground that they had been paid, but were kept on foot by Dwight, who threatened to sell the land of St. John thereon. The judge before whom the case was tried found the fact of such payment, and judgment was given directing their cancellation. This judgment is claimed to be erroneous, because, as it is argued, a suit will not lie by a judgment creditor against a person having a prior judgment which is alleged to be kept on foot fraudulently or inequitably; but it is urged that one or both of the parties must have obtained a title to the land claimed to be incumbered, before such a litigation can be entertained. It was conceded that the debtor owned lands in the counties of Wayne, Tompkins and Tioga, and all the judgments were docketed in those counties. The plaintiff had caused to be issued, and returned nulla bona, an execution on his judgment to the sheriff of the city and county of New York, in which city the defendant resided, but had not issued any execution in either of the counties where the lands were situated; but the defendant had placed executions on his judgments in the hands of the sheriffs of those counties, who had advertised the lands for sale thereon. The gravamen of the action was, that the plaintiff's remedy on his judgments against these lands was embarrassed by the judgments of Dwight, and his claim to enforce them by sale on the executions. The further objection to the action is, that the plaintiff had not caused executions to be issued to the counties where the lands were.
It is easy to see that a judgment creditor may be greatly prejudiced by having prior judgments, which are prima facie superior liens on the land, set up as operative, when they have been actually paid. The case is the same, as respects him, as though they had been fraudulently confessed to defraud him in enforcing his judgment. It is not a sufficient answer that he may sell, regardless of the pretended prior judgments, for persons would not be likely to bid the value of the land, when it was known that there were prior liens on record, which were claimed to be on foot; and however strong the plaintiff's own convictions might be of his ability to show *Page 246 the payment, he could not safely offer to give the full value of the property, while the validity of the prior liens remained undetermined. The case would, therefore, seem to fall within the principle on which courts of equity are accustomed to relieve a judgment creditor against impediments fraudulently or inequitably interposed to his legal remedy. If the plaintiff had title to the land which the defendant was threatening to sell on judgments against a predecessor in the title, which had been paid, the equitable remedy would be very plain, and I do not understand that it would be questioned by the defendant's counsel. The examples of such suits are very numerous. (Pettit v.Shepherd, 5 Paige, 493; Kimberly v. Sells, 3 John. Ch., 467.)
Then, it is a very familiar head of equity jurisdiction to set aside, at the suit of the judgment creditor, conveyances by the debtor which have been interposed to defraud such creditor, and which, if allowed to stand, would embarrass his remedy. (Hendricks v. Robinson, 2 Johns. Ch., 283; McCulloch v.Colby, 5 Bosw., 477; The N.A. Fire Ins. Co. v. Graham, 5 Sandf. S.C., 197, and cases cited.) I refer to only a few of these cases, because the doctrine is not questioned, and abundance of authorities are mentioned in those cases which I do cite.
It is no objection, therefore, to a suit of this nature, that the plaintiff has no title to the land, but only a general lien by judgment; nor is it any objection, in a case where the plaintiff has a rightful standing in court, that the defendant does not inequitably set up a title, but claims only a lien by way of judgment. It is not easy to perceive, therefore, that there is any difficulty in this case which would not equally exist in one or the other of the classes of cases which I have mentioned. It has been truly argued, that the plaintiff in this case has a perfect right to sell the lands of St. John on his execution, and to try the question as to the validity of the prior judgments, when that question should hereafter arise in ejectment on the sheriff's deed, or otherwise; and so he would have, if the claim of the defendant Dwight was under a prior *Page 247 conveyance from the debtor, which was fraudulent against creditors, or invalid for any other cause not appearing upon the papers themselves. The motive for affording the remedy in either case is the same, namely, that the interest of the creditor asking for the remedy might be materially prejudiced, if he were compelled to go on blindly, without an adjudication as to the validity of the obstacle interposed against his process. Then, it may be said, that perhaps the defendant would never attempt to enforce his judgments, and that a suit ought not to be entertained where there is no certainty, but only a possibility, that the plaintiff will be prejudiced, if things remain as they are. But the same answer may always be given, where a person seeks the aid of the court to remove a cloud upon his title. Perhaps he may never be disturbed, and if he should be, it will then be time enough, it may be said, to trouble the courts with the question. But this objection is not generally allowed to prevail, unless the documents under which the defendant claims are invalid for reasons appearing on their face. (Scott v.Onderdonk, 14 N.Y., 9; Lounsbury v. Purdy, 18 id., 515.)
But although a case like the present, where both parties have judgments only, and not a title, does not seem often to have arisen, a single precedent has been referred to where that feature appeared. It was Burns v. Morse (6 Paige, 108), The plaintiff recovered a judgment against one Morse, but just before the judgment was entered, Morse confessed a judgment in favor of the defendant for a debt not yet due and payable, and which was secured by mortgage upon real estate; the object being to defraud the plaintiff. An injunction was issued, restraining the defendant from proceeding on his judgment, and it was sustained by the Chancellor on appeal. The case is not precisely in point, the property which it was sought to shield from the plaintiff's process being personal; but the main objections which are here stated would be equally applicable there, and the appeal to equitable interposition is less strong than in the case of lands.
The learned counsel for the defendant Dwight has referred *Page 248 to the remedy formerly in use under the writ of audita querela. That writ, it seems, was maintainable by a party having legal title to land where disturbance was threatened by one claiming to have a judgment or recognizance, binding the same land, but which it was unjust, under the circumstances, to enforce; but it could not be maintained, it is said, by one having a mere lien and not a title. This remedy is very much, if not wholly, out of use, and there is no principle requiring us to import the rules which governed it, and which were more or less artificial, depending upon reasons which have become obsolete, into our system of modern remedies. Besides, these rules prove too much; for it seems to have been well settled that, if the conusor of a statute staple or statute merchant, which were liens very much in the nature of judgments, aliened the land bound, the alienee could not have an audita querela until his possession had been actually disturbed by execution sued out; whereas, nothing is more common at this day than to afford a remedy to a party, having a conveyance of lands subject to a judgment which it would be inequitable to enforce, by bill in equity quia timet, or, in modern language, to remove a cloud upon his title.
I am of opinion that it was not necessary for the plaintiff, before commencing this action, to issue an execution to the counties where the lands were situated. It was necessary for him to show that he had exhausted his remedy against the debtor's personal property; but this was done, prima facie, by the return of nulla bona to the execution issued to the county in which he resided. It is not pretended that he had anything in the other counties mentioned, except the real estate, or that he ever resided in them. There would be the same necessity of issuing execution to every sheriff in the State, so far as personal property is concerned, as to these counties. In the cases above cited from the Superior Court of New York, relief was denied to the judgment creditor, for the reason that he had not, before commencing the action, caused any execution to be issued to any county; and it was shown that the necessity for such process, before maintaining a suit to *Page 249 remove an obstacle to the creditor's process against the land, was, that it could not be otherwise legally shown that the debt could not be made out of personal property. In a case where there is no personal estate, and the absence of it is shown in a legal manner by an ineffectual fieri facias, it would be an idle form to issue another execution to the county where the land was situated, when the law, as has been shown, does not require that the land should be sold on the execution before the action to remove an impediment can be sustained.
In Hendricks v. Robinson, above cited, the plaintiff, a judgment-creditor, sought to reach personal as well as real estate; and the Chancellor said, it seemed to be required that the plaintiff should have made an experiment at law and bound the property by actually suing out execution at law. The remark must have had reference to the personalty of the debtor, for the cases to which the Chancellor refers related to that species of property; and in Brinckerhoff v. Brown (4 Johns. Ch., 671), the learned Chancellor stated the rule with great accuracy, thus: "If the plaintiff seeks aid as to real estate, he must show ajudgment, creating a lien upon such estate; if he seeks aid in respect to personal estate, he must show an execution, giving him a legal preference, or lien upon the chattels;" and the position is supported by a careful examination of the cases. (See also Spader v. Hadden, 5 id., 280; McElwain v. Willis, 9 Wend., 548; Beck v. Burdett, 1 Paige, 308; Clarkson v. DePeyster, 3 id., 320; Dix v. Briggs, 9 id., 596; Coe v.Whitbeck, 11 id., 42.) Where the subjects sought to be reached are things in action, an execution returned is necessary by the express provision of the statute. (2 R.S., 174.) And even where it is sought to subject land by removing an obstruction to the plaintiff's execution, I am of opinion that a fieri facias should be returned unsatisfied, for the purpose of showing that the plaintiff is under the necessity of asking the aid of the court, on account of his inability to collect his debt by process against the debtor's goods or chattels, but not for the purpose of perfecting his lien upon the land, for that is bound as strongly as it can be by the docketing of the judgment. *Page 250 It is sufficient, therefore, if the execution be issued to the county where the goods would be likely to be found, if there were any, and that was done in this case.
I have looked into the other exceptions; but they are obviously not well taken, and do not call for any particular remarks. The judgment must be affirmed.
DAVIES, WRIGHT, SELDEN, ROSEKRANS, and BALCOM, Js., concurred.