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D. P. Forst & Co. except to the master's report and insist that their judgment should be first paid, together with the costs of their suit brought in this court, to set aside the fraudulent conveyances. In my opinion they are right in this contention. A suit in this court in aid of a judgment at law has been held to be entirely self-serving and one for the benefit of the complainant alone. Whitney v. Robbins, 17 N. J. Eq. (2 C. E. Gr.) 360; Jones v. Fayerweather, 46 N. J. Eq. (1 Dick.) 237 (at pp. 255, 256); nor is Kinmouth v. White, 61 N. J. Eq. (16 Dick.) 358, out of harmony with this view. In that case it was held in this court that where judgment creditors bring suits io set aside fraudulent conveyances which are void as to them all, their priorities against the property conveyed are in the order of their levies, which, of course, is consonant with the doctrine of priority of levy. In that case each judgment creditor who was contending for the property of the fraudulent debtor, not only recovered judgment and secured a levy, but brought a bill to set aside the conveyances which stood in the way of their recovery, and the suits, while not consolidated, being tried together by consent, an adjudication was made as to them ali. Had not each pursued his remedy to the uttermost, he would not, as I understand it, have been entitled to relief, and to have had his judgment established in the order of priority secured by levy. Now, in this matter, Humphrey & Martin and Lynch & Livingston might have proceeded at law and sold the land on which they levied and brought ejectment to test the validity of the conveyances, or they could have filed bills in this court for the removal of the fraudulent conveyances out of their way and then sold the premises under their executions. Kinmouth v. White, ubi supra (at p. 360). They pursued neither of these remedies, and therefore, the land in question, or rather the surplus money which stands in the place of the land itself in respect to liens (Servis v. Dorn, 76 N. J. Eq. (6 Buch.) 241), is beyond

their grasp.

Of these several judgment creditors of Allen, D. P. Forst & Co. alone have pursued the property and secured an adjudication that the conveyances were fraudulent and void as to them. There is no adjudication that they were fraudulent and void

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as to the other creditors. Their (D. P. Forst & Co.'s) debt has become fastened upon this particular property, the debts of the others have not, and D. P. Forst & Co. are, therefore, entitled to the fruits of their diligence.

Mrs. Allen joined her husband in his voluntary conveyance of the property in question and thereby released her right of dower. The premises afterwards came to her by mesne conveyances as already stated and were her property when sold under the fi. fa. in the foreclosure suit. Therefore, she had no estate in dower in the premises sold and is not entitled to any interest in the surplus money

The exceptions to the report will be sustained and an order made awarding the surplus money to D. P. Forst & Co., in payment of their judgment and costs of suit, which will exhaust the fund and leave some balance unpaid.








JUNE TERM, 1910.

MARY L. Mason, appellant,


JAMES Ross, appellee.

[Submitted March 21st, 1910. Decided June 29th, 1910.)

1. The question whether a right of way over the lands of one person exists in favor of another is a purely legal one, and where the existence of such an easement is in dispute the proper tribunal in which to settle the question is a court of law.

2. Where complainant by her bill seeks to restrain defendant from interfering with an alleged easement of way over lands of the endant. and the answer does not challenge the jurisdiction of the court, but denies the existence of the easement, the proper practice is to retain the bill until the complainant has had a reasonable opportunity to establish her title, to the easement, at law.

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On appeal from a decree of the court of chancery advised by Vice-Chancellor Walker, whose opinion is reported in 75 N. J. Eq. (5 Buch.) 136.

Mr. John II. Backes, for the appellant.

Jr. Linton Satterthwait, for the respondent.

The opinion of the court was delivered by


A very full and accurate statement of the facts in this case is contained in the opinion of the learned vice-chancellor in the court below, and it is unnecessary to repeat them here. It is enough for present purposes to say that the complainant, by her bill, seeks to restrain the defendant from interfering with an alleged easement of way in a strip of land owned by the defendant, and upon which the property of the complainant abuts. The proofs demonstrated that prior to the year 1889 such an easement existed in favor of the then owner of the complainant's property. The defence interposed was that this easement had been abandoned by the complainant and her predecessors in title, or one of them, and had ceased to exist prior to the institution of the present suit. A consideration of the proofs led the learned vice-chancellor to the conclusion that this defence had been made out, and he thereupon advised a decree dismissing the complainant's bill. From the decree entered upon this advice the complainant appeals, and the principal contention made on her behalf before us is that the evidence in the case does not justify the conclusion reached by the court below.

We consider that this matter is not properly before us. The question whether a right of way over the lands of one person exists in favor of another is a purely legal one, and, where the existence of such an easement is in dispute, the proper tribunal in which to settle it is a court of law. It was so declared by this court in the case of Hart v. Leonard, 42 N. J. Eq. (15 Stew.) 416, and again in Todd v. Staats, 60 N. J. Eq. (15 Dick.) 512. It is true that special circumstances may sometimes exist which

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