Bress v. Gersinovitch

121 N.E. 525, 231 Mass. 563, 1919 Mass. LEXIS 750

• Court: Massachusetts Supreme Judicial Court
• Decided: January 3, 1919
• Status: Published

Opinion

Pieece, J.

This is an appeal from a final decree sustaining a demurrer to the plaintiff’s bill.

The bill was brought under R. L. c. 159, § 3, cl. 8, to enforce the plaintiff’s right as a creditor to take and apply in payment of the judgment debt of the defendant Abraham Gersinovitch, three parcels of land which were purchased by the debtor, but conveyed to Rosie A. and Myer H. Gersinovitch with intent to defeat, delay or defraud the creditors of Abraham Gersinovitch. Before the bill was filed the defendant debtor, by order of the Municipal Court of the City of Boston in poor debtor session, had assigned to the plaintiff all his right, _ title and interest in and to the three parcels of land conveyed to the other defendants, and the assignment had been duly recorded. Upon demand the defendants had refused to surrender the premises or to pay the amount due on the execution. The plaintiff had also before filing the bill brought an action against the debtor on the judgment, made a- special attachment of the parcels of land standing in the name of Rosie A. and Myer H. Gersinovitch, and recovered judgment for $123.84, for which amount execution duly issued and a levy on execution was made on the premises mentioned by the sheriff, and subsequently sold October 13, 1917, by the sheriff to the plaintiff by deed duly recorded.

The right of the plaintiff to proceed in equity is expressly given by R. L. c. 159, § 3, cl. 8, and is concurrent with the right to levy an execution under R. L. c. 178, §§ 1, 47. The assignment of the debtor as against the grantees could convey no legal or equitable title. The sale on execution gave a mere right to try the title of the defendants as fraudulent grantees, by a writ of entry commenced "within one year after the return day of the execution;” otherwise the levy and the plaintiff’s rights were void by the terms of R. L. c. 178, § 47. Cunniff v. Parker, 149 Mass. 152, 153.

It is plain the demurrer should not be sustained on the grounds assigned, to wit, that the plaintiff has a complete and adequate remedy at law in that the debtor defendant has conveyed to the plaintiff all his right, title and interest in the real estate; and because the plaintiff has sold the property to himself by virtue of the execution levied on said real, estate.

The right to maintain the suit in equity is expressly conferred by statute, and is concurrent with the statutory right to proceed after levy and sale on execution by a writ of entry. Stratton v. Hernon, 154 Mass. 310, 312. Thomas v. Burnce, 223 Mass. 311, 312. There is no legal reason why at pleasure the plaintiff may not elect to pursue the right given him by R. L. c. 159, § 3, cl. 8, and before satisfaction of his execution abandon any other statutory and common law remedy.

Decree reversed with costs.