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(No. 32.)

By vendee, to recover money paid vendor on a contract for

the sale of land, where there have been fraudulent representations, or a mistake in regard to the quantity of land purchased.

SUPERIOR COURT-CITY OF NEW-YORK.

Edward Belknap

agt. Benjamin T. Sealey.

Edward Belknap, plaintiff in this action, complains of Benjamin T. Sealey, defendant, that the said plaintiff, on or about the 22d day of February, 1851, at the city of New-York, aforesaid, bargained with the defendant to buy of him a certain piece or parcel of ground, of the said defendant, situated and lying at and near the southeast corner of Atlantic-street and Clason-avenue, in the ninth ward in the city of Brooklyn, in the county of Kings and State aforesaid ; and the said defendant, well knowing the said premises to be and contain a much less quantity than eight acres and one hundred and fifty-four perches of land, to wit, the quantity of four acres and eight hun

1 The case is reported, 4 Kernan, 144, and the complaint is given verbatim. The Court of Appeals held that a Court of Equity will, on the application of the vendee, rescind an executory contract for the purchase of land, on the ground of mistake in the quantity, notwithstanding the premises are described by metes and bounds, and the term “more or less” is added, after a statement of the quantity, where the mistake, on the part of the purchaser, was caused by the misrepresentation of the vendor, although not fraudulently made, and where the mistake so essentially affected the value of the premises that the contract would not have been made bad it not existed.

1

dred and five one-thousandth parts of an acre only, by then and there falsely, and, as plaintiff believes, fraudulently, representing or causing the said premises to be represented to the plaintiff to be and contain eight acres and one hundred and fifty-four perches of land, falsely, and, as plaintiff believes, fraudulently and deceitfully, induced the plaintiff to buy the said premises, and sold the said premises to the plaintiff for the sum of $14,000, lawful money of the United States of America; that plaintiff paid to the defendant the sum of $1,000, lawful money, as aforesaid, on or about the said 22d day of February, 1851, part and parcel of said purchase money.

And plaintiff says, that said premises so sold by the defendant to him, as aforesaid, were not, and did not contain, eight acres and one hundred and fifty-four perches of land; but, on the contrary, contained the quantity of four acres and eight hundred and five one-thousandth parts of an acre only.

And plaintiff says, that so the said defendant falsely, and, as he believes, fraudulently, deceived and defrauded the plaintiff, in the said sale to the plaintiff, and thereby he, the plaintiff, lost and was deprived of all the benefit and advantage which he might, and would otherwise, have derived and acquired from the said sale to him, had the

The complaint proceeds upon the theory that the plaintiff was induced to purchase by the false and fraudulent representations of the defandant. No such representations were, in fact, proved on the trial ; but the relief granted, was on the ground that both parties acted under a mistake. In such a case, the complaint should set forth only the facts necessary to support the action, namely: the representation by defendant of the supposed quantity of land; that plaintiff relied on such representations, and was induced to purchase, believing them to be true, and in so doing acted under a mistake. No false or fraudulent representations should be alleged, unless they can be sustained by proof on the trial.

representations so made or caused to be made to him, as aforesaid, by the defendant, been true.

And plaintiff further says, that as soon as he ascertained that the said representations were not true, to wit, on or about the 8th day of March, 1851, he demanded of the said defendant a return of the said sum of $1,000, so paid to him by the plaintiff, as aforesaid; but the defendant, thereupon, refused to return said sum, or any part thereof, and still does refuse.

Wherefore the plaintiff demands judgment against the defendant for the said sum of $1,000, with interest thereon from the 22d day of February, 1851, besides the costs of this action.

ARCHIBALD HILTON,

Plaintiff's Attorney.

( 6.) CREDITOR's Bill.

( No. 33.)

Complaint by a judgment creditor in the nature of a creditor's

bill against the judgment debtor alone, to reach equitable interests, things in action, $c., to satisfy a judgment, and praying a preliminary injunction and receiver.?

[ After setting forth the recovery of the judgment, docketing, issuing and return of execution unsatisfied, as in the

1 In addition to the demand for the return of the money paid, under the contract sought to be rescinded, the prayer for relief, in such cases, it seems,

should be for judgment that the contract be rescinded, and that it be delivered up to be canceled.

* This form is adopted from an equity bill in the case of Leitch v. Walker, recently argued in the Court of Appeals. The assignees of

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following form ( No. 34), or with such variations as may required.]

And the plaintiff further alleges, that the said defendant, L. K. W., has for several years past been engaged in the business of farming, in the county of Cayuga, and also in the business of a carpenter, as plaintiff is informed

Walker were subsequently made parties for the purpose of avoiding the assignment. The case is reported under the title of Leitch v Hollister and others, 4 Coms., 211.

The action by creditor's bill is still in force, and may be resorted to, after execution returned unsatisfied in whole or in part. The Code has not repealed the provisions of the Revised Statutes (2 R. S., 173, $$ 38, 39) in reference to this action, except that portion which authorizes a discovery. That is, the allegations must be positive that the debtor has property, or interests in property, &c., not calling for a discovery thereof, but praying that the defendant be adjudged to apply such property to the payment of the judgment, &c. (Collin v. Doughty, 12 How., 458.)

But a creditor's suit to reach equitable property cannot be commenced until his remedy at law upon his judgment is exhausted, by the issuing of execution and its return unsatisfied, and these facts must be alleged in the complaint. (Parshall v. Tillou, 13 How., 7.)

Nor can it be sustained upon a judgment recovered in a justice's court, where the only execution returned unsatisfied was issued by the justice. It should be docketed in the County Clerk's office, and an execution against the real, as well as the personal property of the debtor, returned unsatisfied, to authorize such an action. (Crippen v. Hudson, 3 Kernan, 167.)

And to sustain such an action the plaintiff must be a udgment creditor. A simple contract creditor cannot have an action against the debtor and his fraudulent assignee, to reach the assigned property. (Reubens v. Joel, 3 Kérnan, 488; see Pleadings, 172, 173.)

It may be remarked, however, that under the present practice it cannot, in ordinary cases, be necessary or advisable to commence an action of this character against the judgment debtor alone that is, where no assignment or other fraudulent incumbrance intervenes. An equally efficient and more expeditious remedy is provided in the supplementary proceedings which the Code prescribes. In these proceedand believes, and that the said L. K. W. contracted, in or about the month of December, in the year one thousand eight hundred and forty-one, to build a house for one 0. M. of Scipio, in the county of Cayuga aforesaid, whereby the said M. became liable to pay said W. for the building of the same, and for work and labor performed by him and his servants for said M., a large sum of money ; and which sum was upwards of two thousand dollars, as the plaintiff is informed and believes; and the said M. is justly indebted to the said W. in the sum of one thousand dollars and upwards, and that such indebtedness is good and collectable.

That plaintiff is informed and believes that said L. K. W. is about to transfer said debt to one A. H.

That plaintiff is also informed and believes, that in the course of the said business of the said defendant, divers persons became indebted to him to a large amount, and that the said defendant has, at this time, debts due to him, and for which he holds divers securities and evidences, to the amount of several hundred dollars, and more than sufficient to pay the sum due to plaintiff upon his said judgment against him the said defendant; and that the said defendant has divers goods, wares and merchandise, or other articles of personal property, which belong to him or in which he is in some way or manner beneficially interested, and that he has equitable interests and things in action, of some nature or kind, which might and ought to be applied to the payment of the plaintiff's said judgment ings the plaintiff may have all that he could get under the former creditor's bill, namely, a full discovery and examination, with the further remedy of an injunction and a receiver.

The two following forms (No. 34 and 35), for proceedings by creditor's bill, are in cases where property has been fraudulently assigned by the judgment debtor, and the actions are brought against the debtor and fraudulent assignee, to reach the assigned property.

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