14 validity of the conveyance will not be determined.1 In a proceeding in equity, by a purchaser of land deriving title under a sheriff's sale, to set aside a prior conveyance by the original owner as fraudulent, the court will at most only set aside the conveyance. It will not decree a delivery of possession to the complainant, nor any account of rents and profits.13 The court, on setting aside a conveyance executed in fraud of judgments afterwards recovered and held by plaintiff, may enter a decree in favor of plaintiff for the aggregate amount of the judgments, with interest and costs, instead of simply declaring the property subject to the judgments, and directing that they be enforced by execution. Where an action is brought against the grantee of a deceased debtor to set aside a conveyance on the ground that it was made to hinder and delay creditors, and the representative of the deceased debtor is not a party to the suit, it is error to render a judgment declaring a trust against the grantee and in favor of the debtor's estate. 15 Where a creditor sues the executor of his deceased debtor and the fraudulent mortgagee of the debtor to set aside the mortgage, judgment should be rendered against the executor for the amount of the debt, and a decree against the mortgagee cancelling the encumbrance as to so much of the property as, when levied on and sold, will satisfy the judgment. Where a bill by a judgment creditor alleges that the judgment debtor has transferred the greater part of his property to various persons in fraud of creditors, and has also, for the same purpose, made a statutory assignment for the benefit of creditors and adds a special prayer for relief that all the transfers, as well as the assignment, may be set aside, the assignment may be retained if such a course is more beneficial to creditors." Where a debtor makes no answer to a bill filed by a creditor, and his grantee after decree but during the term, files a disclaimer to the 16 12. Lyman v. Place, 26 N. J. Eq. 30. 13. Hall v. Greenly, 1 Del. Ch. 274. 14. Searing v. Berry, 58 Iowa, 20, 11 N. W. 708. See also Woodard v. Mastin, 106 Mo. 324, 17 S. W. 308. 15. Bachman v. Sepulveda, 39 Cal. 688. 16. Kerr v. Huchins, 46 Tex. 384. 17. Davis v. White, 49 N. J. Eq. 567, 25 Atl. 936, aff'g 48 N. J. Eq. 22, 21 Atl. 187. 19 land sought to be subjected, a decree in accordance with the prayer of the plaintiff's bill is properly rendered.18 Where a judgment creditor suing to set aside a deed of trust on certain property in whole or in part on the ground of fraud fails on such issue, he is nevertheless entitled to have the land sold and the proceeds applied first to the satisfaction of such deed, and the balance, if any, to the payment of the judgment. Upon a bill filed by a creditor to set aside a conveyance as fraudulent, judgment may be entered for the debt, although the fraud charged is not proven.20 Where after issue was joined in an action in the nature of a creditor's suit against a husband and wife, by a judgment creditor of the husband, to reach real estate claimed to have been fraudulently conveyed to the wife, the wife died, and no fraud was established by the plaintiff, he could not have judgment for the interest in the real estate acquired by the husband upon the death of the wife.21 Where defendants, by a fraudulent combination, had made themselves individually answerable to the judgment debtor for certain property sold on execution, the court need not adjust their liabilities among themselves unless requested to do so.22 Where a court finds that a conveyance was voluntary as to part of the alleged consideration, and requires the grantee to pay that sum into court for the benefit of creditors, it is not error to fix the value of the land at the amount of the alleged consideration, and to permit the grantee to retain the land at that price, it not being shown that it was so inadequate as to constitute fraud.23 Where the evidence is not sufficient to induce the court to avoid a conveyance absolutely on the ground of fraud, but to excite a suspicion as to the adequacy of the consideration and the fairness of the transaction, the court will permit the conveyance to stand only as security for the con 18. Roanoke Nat. Bank v. Farmers' Nat. Bank, 84 Va. 603, 5 S. E. 682. 19. Scott v. Thomas (Va. 1905), 51 S. E. 829. 20. Pigue v. McFerrin, 80 Tenn. 645. 21. Curtis V. Fox, 47 N. Y. 299. 22. Bruce v. Kelly, 39 N. Y. Super. Ct. 27. 23. Stonebraker v. Hicks, 94 Va. 618, 27 S. E. 497. sideration actually paid, and a decree may be properly rendered that the conveyance should stand as a mortgage to secure the consideration actually paid, and should direct a sale of the premises, first for the payment of such amount, and then for the satisfaction of complainant's judgment." Where an absolute conveyance is adjudged by the court to be a mortgage, the judgment creditor in an action to set it aside as fraudulent should be decreed to have a lien upon the premises subject to the lien of the mortgage.25 Under the Louisiana civil code, the judgment in the revocatory action instituted by creditors to set aside a fraudulent conveyance, if the action be successful, is that the conveyance be avoided as to its effect on the complaining creditors, and that all the property or money taken from the original debtor's estate by virtue thereof, or the value of such property to the amount of the debt, be applied to the payment of the complaining creditors.26 Where all of defendant's real estate and interest in real estate in a certain county has been attached, and the record does not show what real estate has been covered by the attachment, plaintiff should make a written motion for the judgment desired, particularly describing the property which it is claimed is covered by the attachment, because conveyed in fraud of creditors, supported by the affidavit that it is believed that such property was fraudulently conveyed, and was covered by the attachment." In a suit to set aside a mortgage as fraudulent, where the mortgagee paid taxes on the mortgaged property, he was entitled, on cancellation of the mortgage, to be repaid the taxes with interest.28 Where a husband fraudulently conveyed his goods to his wife and another, and such other conveyed to defendant, who purchased in good faith and formed a partnership with the wife, and subsequently after notice of the fraud and of a pending action to set aside the conveyance, the goods of the part nership were transferred to a corporation organized for the purpose, and in which the members of the partnership were the principal stockholders, a receiver of the property so conveyed was entitled to judgment against the corporation for the amount of the wife's interest in the partnership at the time it was transferred to the corporation, and against the wife for the value of the property conveyed to her by her husband, but to no judgment against the wife's partner individually.29 § 3. Conformity of judgment to pleadings. In a suit to set aside conveyances by a debtor on the ground of fraud, the bona fides of a conveyance not alleged in the bill to be fraudulent cannot be adjudicated.30 As a general rule, issues not raised by an averment or prayer in the bill cannot be adjudicated, and judgment cannot be given upon facts not stated in, or at least fairly inferable from those set out in the complaint. For example, where a complaint, in an action by a judgment creditor to set aside a conveyance of real estate as fraudulent, avers that the conveyance was granted by the debtor in favor of his wife without consideration, with the sole purpose and intent to hinder, delay, and defraud 29. Varnum v. Behn, 63 App. Div. (N. Y.) 570, 71 N. Y. Supp. 903, aff'd 175 N. Y. 522, 67 N. E. 1090. 30. Wheeler, etc., Mfg. Co. v. Hasbrouck, 68 Iowa, 554, 27 N. W. 738; Hunter v. Hunter, 10 W. Va. 321; Erdall v. Atwood, 79 Wis. 1, 47 N. W. 1124. V. Green 31. N. Y.-Greenough ough, 32 App. Div. 631, 53 N. Y. Supp. 1104, aff'g 21 Misc. Rep. 727, 47 N. Y. Supp. 1096; Tuthill v. Myrus, 57 App. Div. 37, 68 N. Y. Supp. 37; Kennedy v. Barandon, 67 Barb. 209; Maders v. Whallon, 64 Hun, 636, 19 N. Y. Supp. 638, aff'd 65 Hun, 622, 20 N. Y. Supp. 145; Hotop v. Neidig, 17 Abb. Pr. 332; Nicholson v. 31 Leavitt, 6 N. Y. Super. Ct. 252. See also Gray v. Schneck, 4 N. Y. 460. Ala.-Pattison v. Bragg, 95 Ala. 55, 10 So. 257. V. Greive, 104 Iowa.-Cathcart Md.-Chatterton v. Mason, 96 Md. 236, 37 Atl. 960. Mo.-Schneider v. Patton, 175 Mo. 684, 75 S. W. 155; Needles v. Ford, 167 Mo. 495, 67 S. W. 240. S. C.-National Bank v. Kinard, 28 S. C. 101, 5 S. E. 464. Tenn.-Dunscomb v. Wallace, 105 Tenn. 385, 59 S. W. 1013. Compare Doherty v. Holiday, 137 Ind. 282, 32 N. E. 315. creditors, and asks that it be canceled of record, and the property declared to belong to the judgment debtor, but the evidence shows that the deed was upon an actual consideration as expressed therein, and was made with no intent to defraud any creditor, but in good faith, a judgment declaring that the deed should stand as a mortgage security in the sum of the actual consideration, and that, subject to it, the plaintiff's judgment should be a lien upon the property, is not within the relief prayed for by the complaint, and is erroneous.32 A judgment in an action to set aside several conveyances to creditors in fraud of other creditors, which sets. aside a conveyance not specified in the petition, cannot stand, although the petition alleges that other transfers, unknown to the plaintiffs, were made in contemplation of insolvency, and within six months of the filing of the petition.33 The Minnesota statute provides that where no answer is interposed the court cannot grant more relief than is prayed for in the complaint. In many other cases it may grant any relief consistent with the case made by the complaint, and embraced within the issue.34 Cases are cited in the note below wherein the judgments and decrees were held by the courts to be warranted by the pleadings and evidence.35 4. Judgment under prayer for general relief.-Under a prayer for general relief in a creditors' bill which seeks to set aside a conveyance as fraudulent, the equitable interest of the debtor in property purchased on conditional sale, and such interest in other 32. Truesdell v. Sarles, 104 N. Y. 164, 10 N. E. 139. 33: Bowers v. Huntingdon Bank, 97 Ky. 294, 30 S. W. 647. 34. Thompson v. Brickford, 19 Minn. 17, in a suit to set aside a fraudulent conveyance of land, part of which is to secure a debt to the grantee and a part to be held in trust for the grantor, where the grantee claims to be a bona fide purchaser of the whole land, the court may avoid the conveyance as to the whole for the actual fraud. 35. Cal.-Woodbury v. Nevada Southern R. Co., 120 Cal. 463, 52 Pac. 730; Bull v. Ford, 66 Cal. 176, 4 Pac. 1175. Ill.-Andrews v. Donnerstag, 70 Ill. Iowa.-Stubblefield v. Gadd, 112 Mass.-Stratton v. Herndon, 154 Mass. 310, 28 N. E. 269. |