Velie v. Myers

14 Johns. 162

• Court: New York Supreme Court
• Decided: May 15, 1817
• Status: Published

Opinion

Thompson, Ch. J.

delivered the opinion of the court. This case comes before the court on a demurrer to the plea to a scire facias to revive a judgment against Isaac Weeks. The plea is founded upon the twelfth section of the act concerning judgments and executions, (1 N. R. L. 504,) and contains, substantially, every necessary allegation to bring the defendant within the statute, and protect the sale made by Weeks whilst a prisoner in execution. Some of the matters set forth in the plea are mere inducement. The substance of it, however, is, that the lands sought to be charged in execution had been bona fide sold by Weeks for the payment of debts due from him to some of his creditors, and that this was done with the privity and consent of j$iyers, the creditor, and in discharge of his debt.

It is no objection to the sale made by Weeks, that it was in ""trust for the payment of Myers and his other creditors. The act only requires that the sale should be bona fide for the payment of his creditors, and the money paid or secured to be paid to creditors, with their privity and consent. I do not see how this can be considered a void trust, if the deed was, upon its face, an absolute deed. The consideration was to be paid to Myers, the creditor, and he could have sustained an action for the same. An action of assumpsit will lie for land sold and conveyed. The conveyance is a good consideration for the promise ; and if the trust was expressed in the deed, it could be enforced in a court of chancery. But all objection on this ground is removed, as, from the facts set forth in the plea, the trust has been executed, and a discharge given by Myers of his debt against Wee/cs. Although the plea contains many facts, yet they are facts leading to, and establishing the single point, that the sale was made bona fide for the payment of the creditors ©f Weeks. The plea is, therefore, good in substance.

The special causes of demurrer are not well founded. The only one that has the appearance of plausibility, is, that the names of the other persons, beside Myers, to whom Weeks was indebted, and the amount of the debts respectively, are not set forth in the plea. But it must be recollected, that the plea states that the sale was made particularly and specially for the payment of Myers’ debt, and the surplus only to be paid to other creditors; and that the value of the land so conveyed was insuEcient to pay and satisfy the debt due to Myers. It was, therefore, immaterial who the other creditors were, or what was the amount of their debts. We are, accordingly of opinion, that jhe defendant is entitled to judgment on the demurrer.

Judgment for the defendant.