56

grantor had no property other than alleged to have been fraudulently conveyed, out of which the creditor's claim might have been made at the time of the conveyance or of the trial, is fatal to a judgment in the creditor's favor.55 Where the court finds that a conveyance, at the time it was made, and at the time of the trial, operated to defraud the creditors of the grantor, this finding will be construed to mean that the grantor was insolvent from the date of the conveyance to the date of the trial. A finding that a mortgage was made in good faith to secure a contemporaneous loan, and without any fraudulent intent, shows that the mortgagee was a bona fide purchaser for value.57 Where by statute the burden is imposed on the purchaser of personal property unaccompanied by an actual and continued change of possession to show his good faith, a finding by the trial court of the bona fides of such purchaser is necessary to uphold his title in that respect as against a subsequent innocent purchaser.58 A judgment setting aside an assignment by an insolvent as not made in good faith is not erroneous for want of a specific finding that defendant was insolvent at the date thereof, where his fraudulent intent is found as a fact.59 In a suit to set aside a mortgage as fraudulent, a finding that the mortgagee took the mortgage with full knowledge of the claims of creditors and of the fact that the same would render the mortgagor insolvent is not a finding that the execution of the mortgage, on the date thereof, left the mortgagor insolvent, and without property sufficient to pay plaintiff's judgment.

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18. New trial.-A new trial will be granted where the verdict is against the weight of the evidence, but not where

55. Hartlepp v. Whiteley, 129 Ind. 576, 28 N. E. 535, 31 N. E. 203.

56. Crow v. Garver, 133 Ind. 260, 32 N. E. 569.

57. Lewis v. Dudley, 70 N. H. 594, 49 Atl. 572. See also White v. Wise, 134 Cal. 613, 66 Pac. 959.

58. Flanigan v. Pomeroy, 85 Minn.

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264, 88 N. W. 761.

59. Vollkommer v. Cody, 177 N. Y. 124, 69 N. E. 277, rev'g 85 App. Div. 57, 82 N. Y. Supp. 969.

60. Dinius V. Lahr (Ind. App. 1905), 74 N. E. 1033.

61. N. Y.-Jackson v. Mather, 7 Con. 301.

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63

the verdict is sustained by sufficient evidence," or the findings as to fraudulent intent are sufficient to support a verdict. If the jury pronounce a sale to be fair and valid which, by the very terms of the statute relative to fraudulent conveyances, is a naked fraud, the court will grant a new trial. A new trial will not be granted because of the erroneous admission of testimony which is not of much practical importance but may possibly have a bearing on the question at issue. Under a statute providing that the court may disregard an error in the admission of evidence, if substantial justice appears to have been done, a new trial will not be granted where the fact, to establish which the evidence is erroneously admitted, is not seriously disputed.

Ga. Trice v. Rose, 79 Ga. 75, 3 S. E. 701.

Me.-Eveleth v. Harmon, 33 Me.

275.

Mont.-Kendall v. O'Neal, 16 Mont. 303, 40 Pac. 599.

N. C.-Darden v. Skinner, 4 N. C. 259.

Compare Depew v. Clark, 1 Phila. (Pa.) 432.

A new trial cannot be demanded as a matter of right in

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an action to set aside a conveyance as fraudulent towards creditors. Truitt v. Truitt. 37 Ind. 514.

62. Foy v. East Dallas Bank (Tex. Civ. App. 1894), 28 S. W. 137. 63. Schwab v. Owens, 11 Mont. 473, 29 Pac. 190.

64. Stevens v. Fisher, 19 Wend. (N. Y.) 181.

65. Cook v. Mason, 87 Mass. 212. 66. Lapham v. Marshall, 51 Hun (N. Y.), 36, 3 N. Y. Supp. 601.

CHAPTER XIX.

JUDGMENT OR DECREE AND ENFORCEMENT THEREOF.

Section 1. Judgment or decree; requisites and validity in general. 2. Nature of relief granted.

3. Conformity of judgment to pleadings.

4. Judgment under prayer for general relief.

5. Amount of recovery.

6. Setting aside conveyance.

7. Ordering sale of property.

8. Personal judgment.

9. Operation and effect.

10. Persons entitled to claim benefit.

11. Enforcement of judgment or decree.

12. Sales and conveyances under order of court.

13. Disposition of property and proceeds; subjection to claims of

creditors.

14. Costs and attorney's fees.

15. Mortgages and other liens.

16. Liens and priorities of creditors.

17. Rights of grantee or purchaser as creditor.

18. Rights of creditors of grantee.

19. Application of payments to judgment or execution.

20. Right to surplus.

21. Discovery.

22. Injunction to restrain fraudulent conveyance by debtor.

23. Injunction to restrain disposition of property by fraudulent grantee.

24. Injunction to restrain sale under fraudulent judgment or mort

gage.

25. Violation of injunction and punishment.

26. Appointment of receiver.

27. Appeal and review.

Section 1. Judgment or decree

Requisites and validity in general. A judgment in an action to set aside a conveyance as fraudulent as against creditors, which is interlocutory in character and not a final judgment from which appeal may be taken, is erro

1

neous. A decree cannot be sustained which professes to state the proofs, when there is no proof shown of the fraud or that there were any creditors at the time of the execution of the conveyance.2 A decree is not complete which omits matters which are of import in the cause and necessary to its complete adjudication.3 A decree in adjudging a mortgage fraudulent as to a creditor is not erroneous, because leaving the mortgagee in possession until the premises are sold, the security being ample for both claims. A decree declaring conveyances void as to creditors need not contain an express proviso as to rights that are protected by statute." Where a judg ment creditor brings his action simply to set aside a transfer as fraudulent, it is sufficient that the judgment declares the instrument fraudulent and void as against the plaintiff's judgment, as all he can claim in the action is the removal or annulment of the transfer so far as it obstructs the enforcement of his judgment." Where it appears that there is nothing which could be applied on the judgment, even if the conveyance was vacated, a judgment in favor of the creditors is erroneous. In an action by creditors to set aside a fraudulent conveyance, and asking judgment for the amount of plaintiff's claims against the grantor, the court may enter a finding against defendants at one term of court, and assess damages and render the proper decree at a subsequent term.8

2. Nature of relief granted.-Where an action is brought by a judgment creditor to reach real estate fraudulently conveyed, the

1. Wood v. Hunt, 28 Barb. (N. Y.) 302.

2. Kennedy v. Merriam, 70 Ill. 228.

3. Oliver Finnie Grocery Co. v. Bodenheimer, 77 Miss. 415, 27 So. 613. See Norberg v. Ricords, 84 Md. 568, 36 Atl. 116.

4. Schultz v. Schultz (Tex. Civ. App. 1901), 66 S. W. 56.

5. Mitchell v. Sawyer, 115 Ill. 650, 5 N. E. 109.

6. Belgard v. McLaughlin, 44 Hun (N. Y.), 557.

7. Jackson v. Sayler, 30 Ind. App. 72, 63 N. E. 881.

8. Doherty v. Holiday, 137 Ind. 282, 32 N. E. 315. See United States v. Ingate, 48 Fed. 251, as to mode and time of rendering judgment in a suit in equity to set aside fraudulent conveyances by a delinquent for public money or his sureties, and subject their property to the payment of the amount due the United States.

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proper judgment to enter is to direct that the fraudulent conveyances shall be set aside, so far as they are an obstruction to the plaintiff's judgment, and that he shall be permitted to issue execution, and sell the property upon the execution in the usual way. The courts have held that the appointment of a receiver, to whom the debtor would be compelled to convey, to sell the property fraudulently conveyed, and pay the judgment out of the proceeds, is not improper, but this conclusion was reached after considerable vacillation, and in spite of the serious inconveniences which necessarily resulted to all parties from taking that course. But where an action is brought to reach personal property or equitable assets which have been disposed of with intent to defraud creditors, the appointment of a receiver is not only proper, but necessary, because it is only when a receiver has been appointed, and has taken the property into his possession, that the creditors acquire an equitable lien upon the assets sought to be reached, and in no other way than by a sale through a receiver can those assets be reduced to money, and applied to the payment of the execution.10 A court of equity has the power not only to set aside a fraudulent conveyance so as to disembarrass complainant's remedy by execution at law, but also, where the property cannot be reached by execution, to subject the property fraudulently assigned directly to the payment of complainant's debt under its own jurisdiction." Where a grantor files a bill to secure satisfaction either out of property conveyed by the debtor or out of the grantee's note given in consideration therefor, and afterwards consents that the decree be made out of the note, instead of from the property itself, the

9. Bryer v. Foerster, 14 App. Div. (N. Y.) 315, 43 N. Y. Supp. 801. See also Chautauqua County Bank v. Risley, 19 N. Y. 369, 75 Am. Dec. 347, wherein the inconveniences which may result from a resort to a receiver are fully set forth; Union Nat. Bank v. Warner, 12 Hun (N. Y.), 306; Van Wyle v. Baker, 10 Hun (N. Y.), 39; McCaffray v. Hickey, 66 Barb. (N.