a conveyance of it upon a secret trust that the grantee shall hold it for his benefit after he has abandoned the use of it as a homestead, it will become liable to his creditors after such abandonment. If a homestead is exempt only conditionally while the debtor occupies and owns it, then a conveyance of it with the intent to delay, hinder, or defraud his creditors is void, and the property is liable to them.14 Where the exemption is only allowed for goods intended to be used in carrying on a trade or business, the goods will be liable to his creditors if he changes his mind, after having purchased them, and sells them with the intent to delay, hinder, or defraud his creditors.'s If the statute merely exempts property to a certain amount at the request of the debtor, made at the time of the levy, a denial of his title, and the assertion of ownership in another, is a waiver of his right to the exemption.16 The next question in order is whether or not a purchaser or grantee will obtain a good title to the exempted property, although the conveyance was made with the intent to delay, hinder, or defraud creditors. It would seem to follow, as a logical sequence from the principles hereinbefore stated, that his title could not be impeached if the property is exempt absolutely and unconditionally. If a conveyance of such property cannot in law be fraudulent, then the grantee obtains a title which he may assert, not merely against the debtor, but against the creditors. A fraudulent conveyance does not enlarge their rights, but leaves them to enforce such rights as if no conveyance had been made. If they insist that the property is still his, they can only sell the same right as if he were the actual owner. Consequently, they must sell it subject to the right to an exemption which the grantee may claim." The grantee has all the powers of 13 Cox v. Shropshire, 25 Texas, 113; vide Delashmut v. Trau, 44 Iowa, 613. 14 Piper v. Johnston, 12 Minn. 60; Chambers v. Sallie, 29 Ark. 407. 15 Rayner v. Whicher, 88 Mass. 292; Stevenson v. White, 87 Mass. 148. 16 Diffenderfer v. Fisher, 3 Grant, 30; Gilleland v. Rhoads, 34 Penn. 187. 17 Danforth v. Beattie, 43 Vt. 138; Kuevan v. Specker, 11 Bush, 1; Castle v. Palmer, 88 Mass. 401; Martel v. Somers, 26 Texas, 551; Goumans v. Boom 22 any other owner to defend his property. He may defend his possession 18 against a purchaser under an execution, or institute an action of replevin against a constable who has levied on the property, or file a bill in equity against creditors who have seized it,20 or maintain an action of trover 21 or trespass against them for the seizure. If the property, however, is exempt only conditionally while the debtor owns it, the right to the exemption ceases with the conveyance, and the grantee cannot claim it.23 If the exemption is only allowed upon the claim of the debtor, the grantee cannot assert any right to it.24 The next question to be considered is whether or not the debtor, after the fraudulent conveyance is set aside, may claim his exemption out of the property. As this is a question upon which the authorities are apparently at variance, it is proper to review them at length. In Cassell v. Williams 25 the debtor, having fraudulently transferred a mare which was subsequently taken on execution, brought an action against the constable to recover the penalty allowed by the statute for levying on exempt property. The court said: "If a party fraudulently transfer his property for the purpose of avoiding the payment of his debts, or even sell it for a valuable consideration after it has become subject to the lien of an execution against him, he cannot afterwards claim the property as his, and recover, from the officer selling it, three times its value, upon the ground that it was exempt from execution against him." In Getzler v. Saroni 26 the debtor hower, 3 Thomp. & C. 21; Whiting v. Barrett, 7 Lans. 106; Lishy v. Perry, 6 Bush, 315; Crummen v. Bennett, 68 N. C. 494; Hibben v. Lozer, 33 Wis. 319; Chrisman v. Roberts, 68 Penn. 308; Rayner v. Whicher, 88 Mass. 292; Pennington v. Seal, 49 Miss. 518; Keating v. Keefer, 5 B. R. 133. 18 Wood v. Chambers, 20 Texas, 247. 19 Bond v. Seymour, 1 Chand. 40. 20 Smith v. Allen, 39 Miss. 469. 23 Piper v. Johnston, 12 Minn. 60; Chambers v. Sallie, 29 Ark. 407. 24 Getzler v. Saroni, 18 Ill. 511; Herschfeldt v. George, 6 Mich. 456. 25 12 Ill. 387. 26 18 Ill. 511. fraudulently conveyed his homestead to his wife. The creditors filed a bill to have it sold to satisfy their demands. The objection to the decree was that no allowance was made of the homestead to the debtor or his family. The court said: "The wife, while the husband is living, cannot claim the benefit of the statute exempting homesteads from forced sale against the husband. It is for him, while living, to claim, if he chooses, the benefit of the statute; and, if he does not, the wife cannot enforce the exemption. Besides, the property, being conveyed to hinder and defraud creditors, was good as against the husband-the grantor. He, therefore, could not claim the exemption of the statute in regard to that property." In Vaughan v. Thompson 27 the debtor brought an action of trespass to recover the value of exempt property taken in execution by the defendant. There was a mortgage on it which was alleged to be fraudulent. The court, holding that a mortgage of exempt property could not be fraudulent, decided that the "plaintiff, as mortgageor in possession, may sustain this action of trespass for levying upon and selling it." In Newman v. Willetts 28 the creditors filed a bill to set aside a fraudulent conveyance. The decree allowed a homestead right out of the property. The court, on appeal, said: "There was no error in directing the sheriff to set off to Mrs. Newman a homestead in the premises, in pursuance of the statute." In Sumner v. Sawtelle 29 the debtor, having purchased a piece of property, caused the conveyance to be made to another. The court said: "It is the owner of property who can plead the defence of exemption, and he must plead it in his own behalf, and not for another. The defendant, Sawtelle, cannot interpose this plea in regard to the premises in question, for, as has been seen, he does not own them, nor has he any interest of any kind whatever in them. Mrs. Strout cannot plead the act, for she does not pretend that she occupies the premises as a homestead. And, as the premises were not, and could not legally be, the homestead of Sawtelle, any evidence touching his occupation of them for that purpose was irrelevant and immaterial, and did not disprove the fraud which the law presumes in such conveyance against creditors." In Piper v. Johnson 30 the creditor instituted an action to set aside a deed as fraudulent. The court said: "How, then, can the appellant have a homestead right in the premises in question as against the plaintiff, or against any person? He is estopped to deny the validity of said deeds, which, as against every person but those whom he intended to defraud thereby, are valid. A person is not allowed to defeat his contract or deed by alleging his own turpitude. These deeds conveyed out of the appellant the entire estate, legal and equitable. He is no longer owner, and the homestead law secures a homestead only to the owner." In Stancell v. Branch 31 the debtor made a fraudulent conveyance of all his property. The question was whether the court would order the land to be first sold. The court said: "So, in our opinion, an attempted fraudulent conveyance of all his property by a debtor will amount to a waiver of his right to have his personal property taken in preference to his land, and the officer may levy in the first instance upon the land and make his reason known in his return. The right to have his personal property taken and sold before his realty is intended as a benefit to the debtor, and there is no reason why he may not waive or forfeit it." In Pennington v. Seal 32 a creditor filed a bill to set aside a deed made by an insolvent debtor to his son and daughter, for natural love and affection. The court said: "The exemption of the homestead is dependent upon the facts that the debtor-claimant is the head of a family and resides upon the premises. He is entitled to continue the occupancy of his home in spite of his judgment-creditor. The conveyance by the father, William Seal, to his son and daughter, being 30 12 Minn. 60. 311 Phill. 306. voluntary, was void as against Pennington, this creditor. The property, so far as liability to existing creditors was concerned, was William Seal's, with the same completeness and effect as though the conveyance had never been made. Seal stood before his creditor as owner of the property, and might assert his right to the homestead with the same force as though he had not made the fraudulent conveyance. It is averred in the pleadings, and proved, that he and his wife continued to reside upon the premises as their house. Nor does it matter, so far as the creditor is concerned, by what sort of title the debtor occupies. By attempting the sale the creditor affirms that his debtor has a salable interest; the law means that interest should not be taken away and the debtor disturbed in his possession by sale under judicial process." * * In Edmonson v. Meacham 32 an insolvent debtor purchased property and caused the title to be conveyed to his wife and children. The court said: "The conveyance procured to be made by Meacham to his wife and children was in equity as if made to himself; that is, the property would be esteemed his at the suit of creditors. If Meacham had a residence with his family upon the property, he would be entitled to the homestead exemption, because the creditors could not treat the conveyance, made by Fitzgerald at his instance, to his wife and children, as inoperative and of no effect. As between the creditors and Meacham, the property belonged to the latter. If he, therefore, fulfilled all the conditions imposed by the statute to constitute the right, it should have been allowed." In this case the word "owned," in the exemption law, was construed to mean nothing more than the right or title by which the debtor occupies the premises. In Thomason v. Neely 34 the creditor filed a bill to set aside a deed. The debtor filed a cross-bill to obtain a homestead. The court said: "We have held, in several cases analogous in features to this, that, as the statute condemned a 33 50 Miss. 34. 34 Ibid. 310. |