Herbert v. Herbert

49 N.J. Eq. 565

• Court: Supreme Court of New Jersey
• Decided: June 15, 1892
• Status: Published

Opinion

The opinion of the court was delivered by

Beasley, C. J.

This bill was exhibited for relief against the sale and conveyance, by an auditor in attachment, of certain real estate, situated at Long Branch. At the sale in question, the plaintiff in attachment became the purchaser, and, accordingly, took a deed from the auditor. The proceedings in attachment were regular in all formal respects.

We are of opinion that in such a case as this the only ground' of jurisdiction of a court of equity is the presence of frauddn the proceedings. The court of chancery cannot intervene in this class of' cases merely on the ground that the claim that has passed to judgment is not, in point of fact was not, justly due or was of a contestable character, for such a principle would obviously give a general superintendence to equity over most of' the judgments taken by force of the process in question.

This court, therefore, affirms the decree in this case on the-ground that the plaintiff in attachment fraudulently used and managed that proceeding for the enforcement of a claim that he-knew had no legal efficacy.

Let the decree appealed from be affirmed, with the addition' that the plaintiff in attachment be forever enjoined from using or enforcing the judgment obtained by him, unless he shall, within thirty days from this date, open the said judgment and. let in the defendant in said proceeding to defend the suit.

For affirmance — The Chief-Justice, Magie, Reed, Scudder, Van Syckel, Werts, Brown, Smith, Whitaker — 9.

For reversal — Dixon, Garrison, Bogert, Clement — 4.