in favor of all subsequent purchasers with or without notice, or whether it applied only to conveyances made with a fraudulent intent and to purchasers without notice. After no inconsiderable diversity of judicial opinion the doctrine has at length been established in England (whether in conformity to the language or intent of the statute is exceedingly questionable) that all such conveyances are void as to subsequent purchasers, whether they are purchasers with or without notice, although the original conveyance was bona fide, and without the slightest admixture of intentional fraud, upon the ground that the statute in every such case infers fraud, and will not suffer the presumption to be gainsaid. The doctrine however is admitted to be full of difficulties; and it has been confirmed, rather upon the pressure of authorities and the vast extent to which titles have been acquired and held under it, than upon any notion that it has a firm foundation in reason and a just construction of the statute. The rule "stare decisis" has here been applied to give repose and security to titles fairly acquired, upon the faith of judicial decisions.2 1 Doe v. Manning, 9 East, R. 58; Pulvertoft v. Pulvertoft, 18 Ves. 84, 86; Buckle v. Mitchell, 18 Ves. 100; Com. Dig. Chancery, 4 C. 7; Sterry v. Arden, 1 John. Ch. R. 261, 267 to 271; Com. Dig. Covin, B. 3, 4; Sugden on Vendors, ch. 16, § 1, art. 1, 2. The elaborate judgment of Lord Ellenborough, in Doe v. Manning (9 East, R. 58), contains a large survey of the authorities, to which the learned reader is referred. See also 1 Madd. Ch. Pr. 421 to 427; 1 Fonbl. Eq. B. 1, ch. 4, § 3, and notes (ƒ) and (g); Jeremy on Eq. Jurisd. B. 1, ch. 2, § 1, pp. 188 to 192; Newland on Contracts, ch. 34, p. 391; 2 Hovenden on Frauds, ch. 18, p. 73, &c.; Belt's Suppt. to Vesey, 25, 26; Atherley on Marr. Sett. ch. 13, pp. 187, &c.; 193, 194; Jeremy on Eq. Jurisd. B. 3, Pt. 2, ch. 3, § 4, pp. 408 to 411; Pulvertoft v. Pulvertoft, 18 Ves. 84, 86, 111; Doe v. Routledge, Cowper, R. 711, 712. Mr. Fonblanque has assailed the doctrine that a purchaser with notice should still be entitled to prevail against the bona fide voluntary conveyance, with great force of reasoning. He asserts that it amounts to an encouragement on the part of the purchaser of a breach of that respect which is morally due to the fair claims of others; and that it may render the provisions of a statute, intended by the Legislature to be preventive of fraud, the most effectual instrument of accomplishing it. 1 Fonbl. Eq. B. 1, ch. 4, § 13, note (g). To which it may be added that it affords a temptation, nay, a premium and justification, on the part of the grantor, to violate those obligations which his own voluntary conveyance imports, and which, in conscience and sound morals, he is bound to hold sacred. 2 See Bohn v. Headley, 7 Har. & J. 257; Jones v. Hall, 58 N. C. 26. See Dolphin v. Aylward, L. R. 4 H. L. 486, that a voluntary settlement cannot be defeated by the settlor's suffering a judgment. And see Pelham v. Aldrich, 8 Gray, 515. It seems too that one who has made a voluntary conveyance cannot compel a subsequent purchaser to take the title. Peter v. Nicolls, L. R. 11 Eq. 391. A voluntary conveyance made without power of revocation will be set aside if it is not clear that the settlor intended it to be irrevocable. Hall v. Hall, L. R. 14 Eq. 365. 564. Voluntary Conveyance Not Originally Fraudulent Is $565. The Same Rule Is Enforced in Massachusetts. The 1 Sterry v. Arden, 1 John. Ch. R. 261, 270, 271; s. c. 12 John. R. 536. 3 Jackson v. Town, 4 Cowen, R. 603, 604. See Seward v. Jackson, 8 Ricker v. Ham, 14 Mass. 139. And see Mr. Bigelow's note, Big. Dig. 5 The point is now settled in Massachusetts as stated in the text. Beal not good against subsequent pur- $566. The Same Rule Has Been Announced by the United States Supreme Court. The Supreme Court of the United States have come to the same conclusion; and it may be fit here to state the grounds of that opinion as given by the Chief Justice in delivering the judgment of the court. "The statute of Elizabeth is in force in this District [of Columbia]. The rule which has been uniformly observed by this court in construing statutes is, to adopt the construction made by the courts of the country by whose Legislature the statute was enacted. This rule may be susceptible of some modification when applied to British statutes which are adopted in any of these States. By adopting them they become our own as entirely as if they had been enacted by the Legislature of the State. The received construction in England at the time they were admitted to operate in this country, indeed to the time of our separation from the British Empire, may very properly be considered as accompanying the statutes themselves and forming an integral part of them. But however we may respect subsequent decisions (and certainly they are entitled to great respect), we do not admit their absolute authority. If the English courts vary their construction of a statute which is common to the two countries, we do not hold ourselves bound to fluctuate with them. $567. Same. "At the commencement of the American Revolution the construction of the statute of 27th of Elizabeth seems not to have been settled. The leaning of the courts towards the opinion that every voluntary settlement should be deemed void as to a subsequent purchaser was very strong, and few cases are to be found in which such a conveyance has been sustained. But.. these decisions seem to have been made on the principle that such subsequent sale furnished a strong presumption of a fraudulent intent, which threw on the person claiming under the settlement the burthen of proving it from the settlement itself, or from extrinsic circumstances, to be made in good faith, rather than as furnishing conclusive evidence not to be repelled by any circumstances whatever. lent conveyance was for value or not may in such a case be deemed material. Coppage v. Barnett, 34 Miss. 621. See Wyman v. Brown, supra. Comp. ante, § 481. It is clear that a purchaser for value without notice may avoid an actually fraudulent conveyance though for value, and a fortiori if voluntary. See Beal v. Warren, supra; Trafton v. Hawes, supra; Pelham v. Aldrich, 8 Gray, 515; Reynolds v. Vilas, 8 Wis. 471; Gardner v. Cole, 21 Iowa, 205; Howard v. Snelling, 32 Ga. 195. § 568. Same. "There is some contrariety and some ambiguity in the old cases on the subject. But this court conceives that the modern decisions establishing the absolute conclusiveness of a subsequent sale to fix fraud on a family settlement made without valuable consideration fraud not to be repelled by any circumstances whatever-go beyond the construction which prevailed at the American Revolution, and ought not to be followed. § 569. Same."The universally received doctrine of that day unquestionably went as far as this. A subsequent sale without notice, by a person who had made a settlement not on a valuable consideration, was presumptive evidence of fraud, which threw on those claiming under such settlement the burthen of proving that it was made bona fide. This principle therefore, according to the uniform course of this court, must be adopted in construing the statute of 27th of Elizabeth, as it applies to this case.' " 1 § 570. [Who Are Creditors. It is not every conveyance by a designing person that may be set aside in equity, as violating the rights of creditors, but it may be stated that it is the conveyance of property which should be applied to the satisfaction of demands that one may have against another. It is not necessary that the demand be a present liability, nor that it be a liability actually reduced to judgment, but it is sufficient if it be a debt, duty, liability, or demand which may be reduced to judgment and which is now or about to be evidenced in this manner and enforced. The term "debt" should be liberally construed and includes any sort of obligation to pay money. An attorney is a creditor of his client to the extent of professional services rendered, even though there were no specific contract as to the actual amount to be paid for the service rendered. And so the plaintiff in an action for injury to character or property, is a creditor of the defendant's, and as such entitled to sue to set aside a fraudulent conveyance of property so as to defeat the plaintiff's collection of his judgment.3 A landlord holding a claim for unliquidated 1 Cathcart v. Robinson, 30 U. S. 268, 8 L. Ed. 120. 2 Smith v. Cook, 10 App. D. C. 487. 3 Chalmers v. Sheehy, 132 Cal. 459, 64 Pac. 709, 84 Am. St. Rep. 62; McInnis v. Wiscasset Mills, 78 Miss. 52, 28 So. 725; Seed v. Jennings, 47 Oreg. 464, 83 Pac. 872; one who has been assaulted is a creditor, Carrell v. Meek, 155 Mo. App. 337, 137 S. W. 19; M'Cartney v. Titsworth, 142 App. Div. 292, 126 N. Y. Supp. 905; Anglin v. Conley, 114 Ky. 741, 24 Ky. L. Rep. 1551, 71 S. W. 926. damages against his tenant, by reason of a renewal of the lease and upon an increased rental, which was subsequently agreed upon by arbitrators appointed for the purpose, is a creditor and entitled to enforce his judgment out of such property as the tenant might have at the time, or such as he may have conveyed for the purpose of hindering his creditors. The rights of a surety will be protected too, he being an existing creditor, and a fraudulent conveyance made by his co-surety at any time subsequent to the execution of the common obligation, may be set aside.2 But as a prerequisite to maintaining his action, he must show that he has paid the principal's debt, the issue of an execution and a return nulla bona. He can never attack an alleged fraudulent conveyance of the principal's until he has paid the debt and pursued his legal remedies.3] § 571. [The Effect of Fraudulent Conveyances upon Pre-existing Creditors. It may be stated that pre-existing creditors, that is, those parties whose rights of action have not actually become claims, demands, or liabilities against the fraudulent grantor, have the same rights to prevent the fraudulent disposition by the debtor that are given to subsequent creditors. The fact that one is a surety upon the principal's bond, and while the time for payment has not yet arrived, but it is apparent that the principal debtor is insolvent and the bond will have to be paid by the surety, this does not affect his right to have the conveyance set aside for he is to all intents and purposes a creditor.* The claims of judgment creditors will be protected and the property ratably divided, where their rights were in existence at the time the voluntary conveyance was made, but their claims had not actually been reduced to judgment; and it seems to be well settled that where a conveyance is set aside at the instance of existing creditors, subsequent creditors may also share in the fruits of the litigation.5 And likewise, where since the debt sued upon was contracted, but before the commencement of the 1 O'Brien v. Whigam, 9 App. Div. 113, 41 N. Y. Supp. 40, 75 N. Y. St. Rep. 495. 2 Washington v. Norwood, 128 Ala. 383, 30 So. 405; Whitehouse v. Bolster, 95 Me. 458, 50 Atl. 240; Hanna v. Hurley, 162 Mich. 601, 71 Detroit Leg. N. 659, 127 N. W. 710; Eddleman v. Lentz, 158 N. C. 65, 72 S. E. 1011. 3 Ellis v. Southwestern Land Co., 108 Wis. 313, 84 N. W. 417, 81 Am. St. Rep. 909. 4 Smith v. Young, 173 Ala. 190, 55 So. 425. 5 O'Brien v. Stambach, 101 Iowa, 40, 69 N. W. 1133, 63 Am. St. Rep. 368. |