Eyler v. Crabbs

Le Grand, C. ,1., delivered the opinion of the court. The view which we have taken of this case, as presented by the record, dispenses with the necessity of considering some of the points made in the argument of counsel. The bill was filed for the double purpose of annulling the deed executed by Eyler to Matthews, and of enforcing, as against the defendants, an alleged lien for the unpaid purchase money due upon a sale and conveyance of the property mentioned in the deed from Eyler to Matthews. The decree pronounced by the county court is founded en ¹⁵⁴ tirely on the ground, that the vendor’s lien has been made out against both of the defendants.

To sustain such a decree, it is necessary it should appear, that either Eyler was insolvent or that the complainant had exhausted all his other remedies before he filed his bill. Pratt vs. Vanwyck’s Excr’s, 6 Gill and John., 496, and Richardson vs. Stillinger, 12 Gill and John., 477, are sufficient authority for this doctrine. The question then is, has the complainant established either of these propositions ? We think not.

The complainant does not aver that he had exhausted his remedies against Eyler before he filed his bill against both of the defendants; but this omission, since the act of 1832, would not prejudice his case before this court, provided there was proof to show the fact, no exception having been taken to the sufficiency of the averments of the bill in the court below. But as the case is presented by the record, there is no proof of either of the essentials to the sustentation of this proceeding. It is true, the bill refers to and makes an exhibit of a former proceeding in equity against Eyler, but the record’ of that suit is not proven under the commission, nor