Gemmill v. Richardson

Citations

• 4 Del. Ch. 599

Syllabus

<p>A mortgage executed by a husband and wife was foreclosed after the husband’s death, the mortgaged premises sold, and a surplus of the proceeds of sale, after satisfying the mortgage, applied by the sheriff to a judgment against the husband ; Held, that it was too late, in the absence of fraud or collusion, to assert the widow’s claim to equitable dower in the surplus.</p> <p>In such case, the judgment having been satisfied and discharged by the application of the money, so that the creditor cannot be placed in statu quo, the Court will not follow the fund for the purpose of enforcing the widow’s equity as against it.</p> <p>Nor, in the absence oí fraud or collusion practiced upon the widow, will either the judgment creditor or the sheriff be held charged ex delicto with the widow’s equity,</p> <p>A court of equity will not follow a fund for the purpose of enforcing an equity against it, after other rights have intervened to innocent third persons who cannot be restored to the status qtio.</p> <p>Distinction in this respect between a mere equity and an estate, lien or charge at law.</p> <p>A sheriff, in the application of money raised under an execution at law, is not bound to take cognizance of equitable claims upon it. These can be asserted only by a bill in equity bringing the fund within the jurisdiction of this Court.</p>