Storm v. Davenport.

be considered as shaken, if not overruled, by the case of Mackie v. Cairns, in the Court for the Correction of Errors, (5 Cowen, 547, 571, 585.) There, the fraudulent conveyances made by Cairns to his assignees, were held valid as between him and them, so that the judgment subsequently confessed by him to them constituted no lien.(a)

It was next insisted, that if the assignment is to be avoided, the property passed to the general assignee in bankruptcy. It was admitted as part of the case at the hearing, that Davenport, since the appointment of the receiver in this suit, has made a voluntary application for a discharge from his debts, under the late bankrupt law, and that he has been discharged accordingly. The parties agree that a decree may be made in the same manner as if all proper parties were before the court.

The question raised by the defendants is one between the assignee and the complainants, and it cannot be determined in the absence of the assignee.

It is a rule to which I know of no exception, that if a party in a cause in this court becomes insolvent or bankrupt pending the suit, his assignees must be made parties before the cause can be heard. Deas v. Thorne, (3 Johns. R. 543,) in the Court for Correction of Errors; (1 Daniell's Ch. Pr. 254.)(b) It occurred to me at the hearing, that this difficulty might, perhaps, be obviated in this case, by a reference to a master to ascertain the priorities of the claimants of the fund, with a direction to summon the assignee as a claimant; but on consideration, I am satisfied that such a decree and reference would not bind the assignee.

The cause must stand over, with leave to the complainants to bring in the assignee in bankruptcy by a supplemental bill. As there can be no conflict of interest between the assignee and the complainants in this respect, the assignment in question may be declared void in the decretal order to be entered.(c)

(a) See accordingly, Brownell v. Curtis, (10 Paige, 210, 218; reported in 1845.) (b) So decided in Anon., 10 Paige, 20, and since reported.

(c) The complainants subsequently made the assignee in bankruptcy a party, who claimed the whole fund. The suit was decided against the claim of the official assignee, by the Assistant Vice-Chancellor, in September, 1845.

The Farmers' Loan and Trust Company v. The People.

THE FARMERS' LOAN AND TRUST COMPANY . THE PEOPLE OF THE STATE OF NEW-YORK.

Where an alien purchased land in fee, and at the same time mortgaged it to the vendors for the purchase money, and it was subsequently escheated to the People of the State; it was held that the title of the People was subject to the lien of the mortgage.

The purchaser in such a case, acquires only an instantaneous seisin in reference to the mortgage, which is in him and out of him by the same breath.

Sept. 29; Sept. 30, 1843.

THE bill was filed to foreclose a mortgage executed by Richard Brown to the complainants on the 1st day of January, 1840. The mortgage was given for the purchase money of the lands included in it, which were conveyed to Brown by the complainants at the time the mortgage was executed. Brown afterwards died intestate, leaving no heirs, or widow, or other person entitled to claim the premises. The people, alleging that he was an alien, instituted proceedings and recovered the lands in ejectment, as having escheated by reason of such alienage. It did not appear who was the defendant in the ejectment; but it was conceded that Brown was an alien.

The Attorney General by his answer submitted the rights of the State to the decision of the court; at the same time insisting that by force of the escheat, the people are the owners in possession of the premises, free and clear of the lien of the mortgage.

William Curtis Noyes, for the complainants.

The Attorney General, (George P. Barker, Esq.,) for the defendants.

THE ASSISTANT VICE-CHANCELLOR.-I do not find that, at common law, the sovereign took lands escheated by reason of the alienage of the last owner, subject to the alien's incum

The Farmers' Loan and Trust Company v. The People.

brances thereon. This would be inconsistent with the principle that an alien cannot hold freehold estates. His title when divested is made of no force, ab initio, so that a bona fide purchaser from him without notice, is not protected. (See 2 Kent's Com. 61, 2d ed.)

The authorities to which I was referred, relate to cases where the land escheats by reason of a want of heirs, or by forfeiture for crime. There, inasmuch as the last owner could, before death or forfeiture, have conveyed, or otherwise disposed of the estate absolutely; all the charges and incumbrances made by him on the same, bind the land in the hands of the lord or sovereign.(a)

There is another ground, however, on which I think the complainants manifest equity to recover their mortgage, may be maintained.

When the purchaser of land executes a mortgage for the purchase money at the time of receiving his conveyance, he has only an instantaneous seisin of the estate, quoad the mortgage. His seisin is but for a transitory instant. The same act which gives him the estate, conveys it out of him again. It is in him and out of him, by the same breath. On this ground, it is well settled, in this state, as well as in many other states in the Union, that in such a case, the widow of the mortgagor is not entitled to dower in the premises conveyed, as against the mortgagee, although she did not unite in the mortgage. Stow v. Tifft, (15 Johns. 462;) Holbrook v. Finney, (4 Mass. 566;) M'Cauley v. Grimes, (2 Gill & Johns. 318;) Gilliam v. Moore, (4 Leigh, 30;) Trustees of Frazier v. Center, (1 M'Cord's Ch. R. 270.)

In a recent case before me, (Kittle v. Van Dyck,)(b) I held that this rule applied, as well where the mortgage was executed to a third person, as where it was made to the grantor of the premises.

I think the principle of the rule is strictly applicable to the

(a) See Evans v. Brown, (5 Beavan, 114.) Viscount Downe v. Morris, (3 Hare's R. 394. S. C. 8 Lond. Jurist Rep. 486.)

(b) Ante, page 76.

The Farmers' Loan and Trust Company v. The People.

case under consideration. The common law gave to a widow her dower in all lands whereof her husband was seised of an estate of inheritance during the coverture. It also gives to the sovereign power, all lands, whereof an alien becomes seised in fee, or of a freehold estate.

If against a right so much favored by the law, as is the right of dower, it is held that the momentary seisin in the case of a mortgage executed by the husband alone for the purchase money on acquiring the title to land, does not entitle the wife to dower as against the mortgage; how much more just is it to maintain the same principle in favor of the mortgagee, against the people's prerogative of escheat by reason of the alienage of the mortgagor? I cannot perceive how the seisin of the mortgagor in such a case, can support the right of the state to escheat the land; when it is too transient and evanescent, to sustain the widow's claim to her dower. And I am satisfied that the people of the state can extend their title by the escheat, no farther than the widow's dower is extended under the same circumstances. Both are restricted to the equity of redemption.

To illustrate the point, the transaction in this instance, and in others of the same nature, may be regarded as a conditional sale. The deed and mortgage, executed at the same time, were a single and indivisible act; and we may consider their provisions in this behalf as if they were all written in one instrument, executed by the parties. It would then be a strictly conditional sale; the title defeasible on the non-payment of the stipulated price; and the conditional estate acquired by the people by the escheat, terminated by the breach of the condition.

This view of the case confirms the position which I have already taken; and leaves me no room to doubt but that the complainants are entitled to enforce their mortgage against the state.

It is therefore unnecessary for me to examine the question presented under the provision of the Revised Statutes subjecting all escheated lands to the same trusts, incumbrances and charges, to which they would have been subject had they descended. (1 R. S. 718, 2.)

There must be the usual decree for the sale of the premises and for the payment of the complainant's debt, interest and

Cochran v. Fitch.

costs out of the proceeds. If there be any surplus, it will be paid to the defendants.

COCHRAN v. T. FITCH and T. F. BUNnell.

An attachment regularly prosecuted in one state according to the provisions of its laws, against one who is a non-resident and is a creditor of a resident of such state; is a bar against a suit in another state by the creditor to enforce his demand which was taken by the attachment.

C. a resident of New-York, was a creditor of T. F., residing in Pennsylvania and of T. F. B. residing in Connecticut, jointly. J. F. B. a creditor of C. proceeded by process of foreign attachment against C. in the courts of Connecticut. The two debtors of C. were named as his trustees and debtors in the attachment, and it was served on T. F. B. C. was not served with process and had no notice of the proceeding, but it went on to a judgment and execution against him. The execution according to the laws of Connecticut, was demanded of T. F. B. who paid it to the officer. Held, that the foreign attachment and subsequent proceedings were a bar to any suit by C. in this state, to recover his debt from T. F. and T. F. B.

Sept. 12; Oct. 2, 1843.

THIS was a judgment creditor's bill, filed September 13th, 1842, after the return of an execution, wholly unsatisfied.

The defendants set forth in a plea the following defence. The complainant, Cochran, resided in the city of New-York, and in July, 1841, commenced a suit by attachment against the defendants, in the county court of Fairfield county, in the state of Connecticut, to recover the demand upon which this bill was filed. The attachment was levied upon property of Fitch, who resided in Philadelphia. T. F. Bunnell was a resident of Fairfield county. Judgment was rendered in favor of Cochran upon demurrer, on the last Tuesday of December, 1841. An appeal was taken, and the judgment was affirmed in the Superior Court of Connecticut, on the fourth Tuesday of September, 1842; and Cochran's damages were assessed