The opinion of the court was delivered by
Williams, Ch. J.
The orator’s bill is confessed by Scott and by Gillett. As to them, it may be considered that Scott w'as the sole owner of the premises purchased of Baxter, after paying the amount due to Baxter; that Scott erected the buildings and made the improvements with his own means, and that Gillett had no interest therein.
Baxter has put in an answer, which is traversed and testimony has been taken.
From the testimony it appears that Scott was indebted to the orator as early as the year 1827; that some time in January, 1830, Baxter gave his bond to Gillett to deed him the premises, on the payment of fourteen hundred dollars, and an annual rent of one hundred and sixty-eight dollars ; that' very soon afterwards, Scott moved on to the premises, made improvements, erected a new tavern house and other buildings, and continued to occupy them until March, 1835, when he sold to one Doolittle, and, in the course of this time, he contracted a debt with Baxter and his partner, Edmunds, of from ten to fifteen hundred dollars for materials, paying hands, &c.
In August, 1834, the orator caused the land, buildings, &c., to be attached upon two writs, as the property of Scott, in due form of law, on which attachments judgments were rendered, and, on the fifteenth day of May, 1835, executions issuing thereon were levied on forty-nine one-hundredths, of the premises, as the property of Scott, for the sum of about four hundred and thirty-four dollars. In this levy the appraisers estimated the whole premises as worth two thousand nine hundred and thirty-three dollars and thirty-four cents, and the sum due to Baxter as two thousand and fifty dollars.
On the fifth of March, 1835, the premises were sold by Leslie, as the agent of Scott, or Gillett, or both, to Doolittle for three thousand dollars; of which, two thousand [528]*528one hundred dollars were due to Baxter, for the original purchase money. Doolittle secured to Baxter and his partner, Edmunds, the remaining nine hundred dollars. It appears that of the nine hundred dollars, five hundred dollars were appropriated to pay the debt due to Baxter & Edmunds, before mentioned, and for four hundred dollars they (B. &. E.) gave their note running to Gillett. The balance of Baxter & Edmund’s debt against Scott was paid by a conveyance executed by Scott of part of the premises included in the bond first given to Scott. That bond was given up, Baxter conveyed to his partner, Edmunds, one undivided half of the premises conveyed by Scott to them, thus vesting in Baxter & Edmunds the title thereto. Baxter then executed a new bond to Doolittle, conditioned, to convey the premises purchased by him,on the payment of twenty-one hundred dollars and the interest thereon, which was due in March, 1837.
It appears to us, undeniably, that Gillett had no interest in the original purchase by Scott from Baxter, nor is there any evidence proving, or tending to prove, that he ever advanced any thing to Scott towards the buildings, or had any debt whatever against him. He has putin no answer to the bill, either denying the facts set forth therein, or setting up any claim either in law or equity thereto, or any debt due, or claim against Scott. As it respects him, therefore, by his suffering the bill to be taken as confessed, these facts must be conceded. No evidence has been introduced to show or establish any such claim of Gillett. Leslie, in his deposition, does not state any such debt, and there is no other evidence, except as to the sayings of Scott and Leslie, which cannot be considered as legal evidence in this cause. If it was important for either of the defendants to establish any legal or equitable claim in Gillett, as against the creditors of Scott, it is sufficient to say that no evidence to that effect has been introduced, but, on the contrary, all the evidence tends to prove that his name alone was used for the benefit of Scott. We consider then that Scott had such an interest in the premises, at the time of the attachment made by the orator, as was subject to be taken by his creditors, either at law or in equity, and that if the attachment had been immediately followed by a bill in equity, enjoining Baxter from conveying [529]*529to any other person than Scott, Gillet or the orator, the remedy of the orator would have been unquestionable ; that is, the orator would have been permitted to take the place of Gillett or Scott, and, on paying to Baxter the amount due, would have been entitled to a conveyance of so much as would -satisfy his debt. We are not prepared to say that the attachment made in August, 1SS34, should operate as an injunction to Baxter not to comply with the condition of his bond made to Gillett. On the contrary, we are inclined to the opinion that, notwithstanding the attachment, if Gillett had either paid or tendered the amount due on the bond and demanded the conveyance, Baxter would have been justified in deeding to Gillett, according to the terms of the bond originally given to him. But, in that case, the attachment would have held the land, &c., as against both Scott and Gillett, after paying the amount due or paid to Baxter, and the remedy of the orator would have been against them alone. We find that Baxter had actual notice of the attachment, as appears from the testimony of Edmunds. He would not, therefore, be justified in conveying to any one else, so as to defeat the orator’s claim against Gillett and Scott. We learn, however, that while Gillett held the bond of Baxter, and while Scott was erecting the buildings, Scott contracted a debt with Baxter & Edmunds to a large amount, for the very purpose of making the improvements and erecting the buildings, and that Leslie, who held the bond, agreed that it should not be given up, until that debt was paid, and this took place previously to the service of the attachment for the orator’s debt. It was, therefore, both legal and equitable, that so much of the purchase money, on the sale to Doolittle, as was necessary to pay the balance of that debt, should be applied for that purpose, and, for the residue, the amount for which the note of Baxter & Edmunds was given to Gillett, we think the orator has a claim, and that it should be paid to him. This, we learn, is four hundred dollars, and though the testimony does not fix the sum with accuracy, yet we think that should be taken as the sum for which the defendant, Baxter, and his partner, Edmunds, gave their notes to Gillett, as they have introduced no testimony to fix the sum more accurately and precisely.
We have had some doubts whether Edmunds should not [530]*530have been a party to this bill, as Baxter & Edmunds gave the note to Gillett. This, however, was not insisted on in the hearing before the chancellor and has not been urged before us. Indeed, we could not, in this court, refuse a decree on that ground, as it could have been obviated, if insisted on at the hearing before the chancellor. There is no proof nor pretence that the noté given to Gillett has been paid. Moreover, we think that, after Baxter had actual notice of the orator’s attachment, he would only have been justified in deeding to Gillett and receiving the debt due to Baxter & Edmunds, but not in paying anything either to him or Scott, or creating any further incumbrance on the equitable claim of the orator to the lands and buildings, for the payment of the debt.
We have further had some doubts, whether this bill was so framed as to entitle the orator to the decree we are about to make.
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The opinion of the court was delivered by
Williams, Ch. J.
The orator’s bill is confessed by Scott and by Gillett. As to them, it may be considered that Scott w'as the sole owner of the premises purchased of Baxter, after paying the amount due to Baxter; that Scott erected the buildings and made the improvements with his own means, and that Gillett had no interest therein.
Baxter has put in an answer, which is traversed and testimony has been taken.
From the testimony it appears that Scott was indebted to the orator as early as the year 1827; that some time in January, 1830, Baxter gave his bond to Gillett to deed him the premises, on the payment of fourteen hundred dollars, and an annual rent of one hundred and sixty-eight dollars ; that' very soon afterwards, Scott moved on to the premises, made improvements, erected a new tavern house and other buildings, and continued to occupy them until March, 1835, when he sold to one Doolittle, and, in the course of this time, he contracted a debt with Baxter and his partner, Edmunds, of from ten to fifteen hundred dollars for materials, paying hands, &c.
In August, 1834, the orator caused the land, buildings, &c., to be attached upon two writs, as the property of Scott, in due form of law, on which attachments judgments were rendered, and, on the fifteenth day of May, 1835, executions issuing thereon were levied on forty-nine one-hundredths, of the premises, as the property of Scott, for the sum of about four hundred and thirty-four dollars. In this levy the appraisers estimated the whole premises as worth two thousand nine hundred and thirty-three dollars and thirty-four cents, and the sum due to Baxter as two thousand and fifty dollars.
On the fifth of March, 1835, the premises were sold by Leslie, as the agent of Scott, or Gillett, or both, to Doolittle for three thousand dollars; of which, two thousand [528]*528one hundred dollars were due to Baxter, for the original purchase money. Doolittle secured to Baxter and his partner, Edmunds, the remaining nine hundred dollars. It appears that of the nine hundred dollars, five hundred dollars were appropriated to pay the debt due to Baxter & Edmunds, before mentioned, and for four hundred dollars they (B. &. E.) gave their note running to Gillett. The balance of Baxter & Edmund’s debt against Scott was paid by a conveyance executed by Scott of part of the premises included in the bond first given to Scott. That bond was given up, Baxter conveyed to his partner, Edmunds, one undivided half of the premises conveyed by Scott to them, thus vesting in Baxter & Edmunds the title thereto. Baxter then executed a new bond to Doolittle, conditioned, to convey the premises purchased by him,on the payment of twenty-one hundred dollars and the interest thereon, which was due in March, 1837.
It appears to us, undeniably, that Gillett had no interest in the original purchase by Scott from Baxter, nor is there any evidence proving, or tending to prove, that he ever advanced any thing to Scott towards the buildings, or had any debt whatever against him. He has putin no answer to the bill, either denying the facts set forth therein, or setting up any claim either in law or equity thereto, or any debt due, or claim against Scott. As it respects him, therefore, by his suffering the bill to be taken as confessed, these facts must be conceded. No evidence has been introduced to show or establish any such claim of Gillett. Leslie, in his deposition, does not state any such debt, and there is no other evidence, except as to the sayings of Scott and Leslie, which cannot be considered as legal evidence in this cause. If it was important for either of the defendants to establish any legal or equitable claim in Gillett, as against the creditors of Scott, it is sufficient to say that no evidence to that effect has been introduced, but, on the contrary, all the evidence tends to prove that his name alone was used for the benefit of Scott. We consider then that Scott had such an interest in the premises, at the time of the attachment made by the orator, as was subject to be taken by his creditors, either at law or in equity, and that if the attachment had been immediately followed by a bill in equity, enjoining Baxter from conveying [529]*529to any other person than Scott, Gillet or the orator, the remedy of the orator would have been unquestionable ; that is, the orator would have been permitted to take the place of Gillett or Scott, and, on paying to Baxter the amount due, would have been entitled to a conveyance of so much as would -satisfy his debt. We are not prepared to say that the attachment made in August, 1SS34, should operate as an injunction to Baxter not to comply with the condition of his bond made to Gillett. On the contrary, we are inclined to the opinion that, notwithstanding the attachment, if Gillett had either paid or tendered the amount due on the bond and demanded the conveyance, Baxter would have been justified in deeding to Gillett, according to the terms of the bond originally given to him. But, in that case, the attachment would have held the land, &c., as against both Scott and Gillett, after paying the amount due or paid to Baxter, and the remedy of the orator would have been against them alone. We find that Baxter had actual notice of the attachment, as appears from the testimony of Edmunds. He would not, therefore, be justified in conveying to any one else, so as to defeat the orator’s claim against Gillett and Scott. We learn, however, that while Gillett held the bond of Baxter, and while Scott was erecting the buildings, Scott contracted a debt with Baxter & Edmunds to a large amount, for the very purpose of making the improvements and erecting the buildings, and that Leslie, who held the bond, agreed that it should not be given up, until that debt was paid, and this took place previously to the service of the attachment for the orator’s debt. It was, therefore, both legal and equitable, that so much of the purchase money, on the sale to Doolittle, as was necessary to pay the balance of that debt, should be applied for that purpose, and, for the residue, the amount for which the note of Baxter & Edmunds was given to Gillett, we think the orator has a claim, and that it should be paid to him. This, we learn, is four hundred dollars, and though the testimony does not fix the sum with accuracy, yet we think that should be taken as the sum for which the defendant, Baxter, and his partner, Edmunds, gave their notes to Gillett, as they have introduced no testimony to fix the sum more accurately and precisely.
We have had some doubts whether Edmunds should not [530]*530have been a party to this bill, as Baxter & Edmunds gave the note to Gillett. This, however, was not insisted on in the hearing before the chancellor and has not been urged before us. Indeed, we could not, in this court, refuse a decree on that ground, as it could have been obviated, if insisted on at the hearing before the chancellor. There is no proof nor pretence that the noté given to Gillett has been paid. Moreover, we think that, after Baxter had actual notice of the orator’s attachment, he would only have been justified in deeding to Gillett and receiving the debt due to Baxter & Edmunds, but not in paying anything either to him or Scott, or creating any further incumbrance on the equitable claim of the orator to the lands and buildings, for the payment of the debt.
We have further had some doubts, whether this bill was so framed as to entitle the orator to the decree we are about to make. These have, however, yielded, on further examination. The end and scope of the orator’s bill is to obtain a satisfaction of his debt, out of the interest which Scott had in the premises, at the' time of the attachment. He had levied his attachment and execution on what appeared to him to be that interest, and which- he was justified in considering as the interest of Scott, from the facts which he has proved to have been then in existence. From the evidence, however, it appears that, in equity, Baxter & Edmunds had a further claim which should be considered as a charge on the estate, and although the orator may not, on that account, be entitled to the specified relief prayed for, or a deed of the premises levied on, yet, under his prayer, that the defendant pay him the amount thereof, and his general prayer, he is entitled to have a decree for the payment of the amount of the note which was given to Gillett; as Baxter should not have conveyed to any one but Gillett, after notice of the at- ' tachment, and thereby either embarrass the orator in the collection of his debt or turn him over to other parties to obtain what was equitably due to Scott, the legal right to which was in the name of Gillett.
As a result of the whole, we are of opinion that Scott made the purchase of Baxter for which the first bond was given that he was at the whole expense of building ; that he occupied the tavern for his own benefit, and was, in short, [531]*531the sole and absolute owner thereof after paying the' bond to Baxter ; that Gillett had no interest whatever, in the premises ; has neither advanced any thing, nor set up any claim thereto, and no such claim is established or proved, by any testimony ; that, on the sale to Doolittle, whatever interest in the premises existed,over and above paying the bond to Baxter; and the account of Baxter & Edmunds, which was agreed should be paid by Leslie, who held the bond, did in equity belong to Scott, and the orator is entitled thereto, and that there is no evidence whatever, that any payment had been made of the note given to Gillett before the filing of the bill.
On the principle that equity will aid a judgment creditor to reach the equitable interest of his debtor, when payment of his debt cannot be obtained at law, we. think a decree should be made for the orator for the amount of the note given by Baxter & Edmunds to Gillett, out of the purchase money on the sale to Doolittle, which is four hundred dollars, with the interest'from March,1835, and the cause will be transmitted to the chancellor to make a decree accordingly. No costs will be decreed, against Baxter, in this case, as there is no evidence to implicate him in any fraud or any attempt to conceal the property of Scott, and he may have thought he was fully justified in executing this note to Gillett, and would not be justified in paying the same to the orator without a decree of this court. Scott and Gillett will be decreed to pay cost.