Wolfe v. Gardner

4 Del. 338

• Court: Superior Court of Delaware
• Decided: July 1, 1845
• Status: Published

Opinion

The Chief Justice said it was a very old practice to release part of land bound by judgment, at the instance, and for the relief of the debtor; and it had never been supposed that he could object to it; whether any other person who might be injured by it, could or not. He mentioned precedents of such release drawn by the elder Mr. «Read and Mr. Vandyke.

Harrington, Judge.

—This is not technically a release. It amounts Ito nothing more than a covenant by the judgment' creditor of Gardiner and White, made with a third person, O’Daniel, not to levy the ljudgment out of a portion of Gardner’s property which O’Daniel'had ■purchased. . This was for the benefit of the debtor, and done at his ■request. The agreement of the creditor to waive his remedy as against one of four tracts of land bound by the judgment, and to rely exclusively on the security of the other three, might benefit, but could not injure the debtor; and if it could in any way affect the rights of others, the objection should come from them. If the lien of the judgment should be'thus thrown upon a part only of the property to the prejudice of other liens, a case might be presented for equitable relief on the principle of marshalling securities; but here, in a court of law, without any allegation of fraud, or indeed of any injury to the rights of the defendant, or of any one else, I do not think he has any substantial ground for his motion to set aside this execution.

I am, therefore, for discharging the rule.

The other judges concurred. Rulé discharged.