McNab v. Heald

Citations

• 41 Ill. 326

Syllabus

<p>1. CHANCERY—jurisdiction to subject equitable interests to satisfy a judgment at law. The interest of a defendant held by himself or any other to his use, whether held by deed, bond, covenant, or otherwise, for a conveyance, or as mortgagee or mortgagor of land, in fee, for life or for years, is declared by-statute to be subject to sale on a fi. fa. at law.</p> <p>2. Same. The statute also declares, that, when an execution is returned ■unsatisfied, in whole or in part, the plaintiff in execution may file a bill against the defendant and any other person, to compel a discovery of any property, or thing in action, due to or held in trust for him.</p> <p>3. Same. Independent of our statute, a court of equity in a proper case would subject a mere equitable estate or interest of a defendant in execution, growing out of a contract for the sale of the land, to the payment of the judgment. Before the adoption of the first section of the statute in reference to judgments and executions, rendering such interests liable to sale on a fi. fa., the only means of reaching them was by bill in equity.</p> <p>4. Same — concurrent jurisdiction. Where a jurisdiction is vested in a court of equity, and the like jurisdiction is conferred by statute on a court of law, the presumption is that it was designed to be concurrent and not exclugive, unless the court of equity is prohibited or limited in its exercise by the language of the act. And such a legal remedy does not preclude a court of equity from assuming jurisdiction and affording relief.</p> <p>5. Contract — for sale of land Haile in equity to pay judgment. Where a j udgment debtor holds a contract for the purchase of lands, and an execution has been returned no property found, and his vendor is dead, and a portion of the purchase-money remains unpaid, plaintiff in execution may file a bill against the defendant, and the executor and heirs of the vendor of defendant, for discovery, and to subject the interest of defendant to pay