Bulat v. Londrigan.

Bulat may be established as complete in the premises, or, failing in that, that the defendants may be put upon terms of repaying to the complainant Bulat all the moneys paid out for encumbrances in the shape of mortgages and other liens due upon the premises at the time of the sheriff's sale, and for all assessments for benefits due to municipal improvements that accrued since, and for all the buildings which he has erected on the premises.

Let us inquire what the precise defect in the affidavit was. It reads as follows:

"James F. Minturn, being duly sworn, says that he is attorney for the plaintiff in within entitled cause; that the said judgment is a bona fide and existing judgment against the said defendants for money loaned by plaintiff to defendants, and that the whole amount of said judgment and costs still remains due and unpaid."

Looking at the opinion in Grimshaw v. Carroll, I find that the sole defect was that the affidavit does not state that the debtor was not possessed of goods and chattels sufficient to satisfy the amount due. The affidavit does not state in so many words that more than $10 was due, but it does state what is tantamount to that in stating that the whole amount is due.

With regard to the lack of personalty, the execution against goods was issued out of the district court and properly returned, although that is dispensed with by the act of 1882. The return to the district court of that execution unsatisfied for want of goods and chattels, and the levying of the execution out of the pleas on the real estate, without resort to chattels, is prima facie proof that the defendants had no personal chattels upon which to levy, and there is not a particle of evidence in the case upon which a contention can be based, nor, in fact, was any contention made on the part of the defendants that they were possessed at that time of goods and chattels sufficient to satisfy the judgment or any part of it.

This shows that there was no intentional evasion of the statute. But grant, for argument's sake, that there was evidence from which it might be inferred that the defendants were possessed of personalty sufficient to pay the whole or a part of this judgment, the question for consideration in this court still remains, what real injury have they suffered under the circumstances?

Bulat v. Londrigan.

The provision in our statute that lands are to be sold for the payment of judgment debts only after the exhaustion of the personalty is a relic of the rule of the ancient English common law, having its origin in the feudal system, that land could not at all be sold for the payment of debts. We all know how gradually the great English landholders yielded to the importunity of mercantile creditors that their land should be devoted to the payment of their debts. Such liability was, however, finally established by statute, coupled with the condition, however, which we find in our system, providing for the exhaustion of the personalty prior to the sale of the land.

But the hardship of this provision, and I may add, its folly, was early manifested and remedied by the provision found in the revised act of 1846 (Rev. p. 601 § 5), giving the defendant the right to require the sheriff to sell his land before selling his chattels. It is common knowledge that it may, and probably will, work a greater hardship to a defendant to have his personal property, which generally includes the implements of his business, the possession of which is an actual necessity for the prosecution of his ordinary affairs, sold away from him on a short notice, than to have his real estate so disposed of. In the first half of the last century, and even later, sheriffs were in the habit, at their own risk, of leaving chattels levied upon in the possession and use of the defendant for weeks and months. But now that is all changed. Sheriffs take no responsibility in such cases; with the result that a levy upon personalty is usually accompanied by an immediate change of possession and control.

Besides, it is in the power of any execution debtor to apply his personalty to the satisfaction of a debt, if he so chooses. So that it may be safely affirmed that there can be no presumption that any actual injury is inflicted on an execution debtor by subjecting his real estate to the payment of his debt before exhausting his personalty.

In the case in hand, as I have said, no proof was offered that the defendant had a sufficiency of personal property to pay the debt or any part of it, and no point based on the supposed possession of such a sufficiency of personalty was made either in the

Bulat v. Londrigan.

answer or at the argument. I am therefore justified in holding that the defendant suffered no such injury from the neglect, if any, on the part of the sheriff to do his duty in that respect, either when the execution out of the district court came to his hands, or afterwards, when that out of the common pleas came to his hands, as would arrest the attention of a court of equity.

The case is also devoid of one element which always influences a court of equity in applying the principles of equitable estoppel. It is not a case where the question is which of two innocent parties must suffer by the conduct of a third. There has here been no loss or injury to the defendants.

I conclude, then, that the defect here relied on is purely technical, entirely harmless and devoid of merit.

Under these circumstances the complainants contend that the defendants are estopped by their conduct, as well positive as negative, from asserting their legal title.

In order to appreciate the full force of the facts relied upon to create an estoppel, it is proper to give them more in detail. Londrigan is an old resident of Hoboken, and a man of business experience, especially in real estate. He was a general contractor for street work, and held municipal offices both in the city and county.

In the period of inflated prices which followed the war of the rebellion he acquired several pieces of real estate in Hoboken, upon which he made improvements of more or less value, and placed heavy mortgages.

When the shrinkage in values, which occurred between 1875 and 1885, overtook him, he was embarrassed, and managed his affairs as best he might.

Foreclosures were had, as I understand the evidence, of all the mortgages on the several pieces of land.

In some instances he let the property go to the mortgagee, on condition that he should be relieved from personal liability on his bonds.

In other instances, including that here in question, he let the property be sold and procured the title so derived to be placed in his wife's name. So far as appears, she had no estate of her own, and paid nothing for the property here in question, the whole being represented by the mortgages.

Bulat v. Londrigan.

It appears affirmatively that in these affairs Londrigan was by nature and experience entirely able to take care of himself. He managed all the property as his wife's agent, with her consent and approbation. In fact he was the real owner.

The property in question consists of two adjoining city lots, twenty-five by one hundred feet each, situate on the corner of Adams and Fourth streets in the meadow district of Hoboken. It was, when Londrigan acquired it, according to his statement, a mere salt marsh, covered with water at high tide and after heavy rains. He erected on the corner lot a small dwelling and store, at a time when materials and labor were high in price, and later on he moved onto the lot adjoining the corner a wooden building resting on posts, which building had been erected by him on another lot and used at first as an engine house, but when placed on one of the lots here in question, was used first as a stable and afterwards as a factory.

At the time of the sheriff's sale these buildings-the house on the corner lot, and the stable on the adjoining lot-were much depreciated in value, both by reason of the depreciation in the market price of the materials and labor of which they were composed, and also by reason of their unsubstantial character. This was especially true of the wooden building. They were in the possession of a firm of manufacturers of brewers' materials, Messrs. Kitz & Grempler, at a rent of $500 a year, payable monthly, which was shown to be a high rent, only obtainable under unusual circumstances, and were subject to two mortgages, one of $2,200, and the other of $1,000, aggregating $3,200, with an indeterminate amount of arrears of interest, besides taxes and assessments, amounting to a considerable sum of money, and, in all, to nearly or quite $4,000.

Williams appears to have been a friend of Londrigan, and when, in 1884, the latter wished to go into the kindling-wood business in the name of his wife, Williams loaned him and her $400 in cash, upon the note of the defendant Eliza, endorsed by Patrick. This note was reduced, so Patrick swears, by small payments, to $300. No interest was demanded upon it, and it was the foundation of the judgment in question.

There is no allegation in the answer, nor the least foundation :

Bulat v. Londrigan.

in the evidence, to support the notion that any unfair use was made by Williams of his judgment and execution, or that any unfair advantage was taken of the defendants in the proceedings under it. Londrigan does, indeed, swear that about that time he was sick and secluded, for a period not mentioned by him, at Morris Plains. He does not state that it was at the hospital there, nor does he state the nature or duration of his illness; nor is there the least evidence given by anybody else on that subject. The sheriff, as we have seen, served process on both of the defendants, and Patrick was, as we shall see further on, in Hoboken at or shortly after the sale. The evidence of his absence is so indefinite and uncertain that counsel made no point of it in the argument.

The judgment was docketed September 19th, 1885; fieri facias de bonis et terris was issued October 6th, returnable the first Tuesday of November, 1885; the advertisement of sale was for the 11th of February then next, and the sale was then adjourned until the 18th, on which day it was sold to the plaintiff, as we have seen, he realizing out of his bid, after deducting the costs of sale, less than one-half the amount due him on his judgment.

Immediately after the sale, Williams, through his real estate agents, gave Kitz & Grempler notice to pay the rent to him. They declined to do so without authority from Londrigan, who had generally collected the rents and acted as the agent of his wife in the management of the property. Thereupon, as both Kitz and Grempler explicitly testify, Londrigan came to their office with Williams, and declared to them that Williams had purchased the property and that they should pay the rent to him as the owner.

This is denied by Londrigan, but I can give no credence to his denial in the face of the clear evidence of these gentlemen, who appear to be intelligent business men, and who have no reason or desire to prevaricate, and who testified with caution. In fact, I think Londrigan's denial of this interview, so thoroughly established and so probable in itself, must weigh against his reliability in other statements when he conflicts with other witnesses.

It further appears that Bulat had formerly lived and carried