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property sold as was owned by the debtor, may be condemned. Where facts are alleged to show that deeds were made without consideration, or in fraud of creditors, the creditors are, upon proof of these facts, entitled to have the deeds canceled, but not to have them treated as mortgages, or to be substituted to the vendor's lien of the debtor for the unpaid purchase money. In an action by a judgment creditor to set aside as fraudulent a trust deed given by a debtor, plaintiff may, on a general prayer for relief, have a foreclosure of the trust assignment, so as to reach the surplus, if any, after the payment of the trust expenses and debts.38 Where a trust deed sought to be set aside is held valid, the complainants are entitled to have the surplus proceeds of the trust property, if any, after the satisfaction of the debts secured in the deed, applied in discharge of their demand.39 Where a creditor recovers judgment against his debtor, without including interest to accrue, and the debtor thereafter makes a fraudulent conveyance of his property to prevent its seizure on execution, a court of equity will set aside such conveyance on the petition of the creditor, and decree interest under the prayer for general relief.40 In a creditors' bill which seeks to set aside a conveyance as fraudulent, the court may decree that, on default in payment of the amount found due, the land found to have been fraudulently conveyed may be sold by a master in chancery."1

§ 5. Amount of recovery.-Notwithstanding a judgment, the court will, where the judgment creditor asks relief against a fraudulent conveyance, look into the original consideration, and give the creditor only what on the whole appears due to him.1 It is proper, in setting aside a transfer in favor of a plaintiff who has

36. Hunter v. Austin, 109 Ala. 311, 9 So. 511.

37. Muenks v. Bunch, 90 Mo. 500, 3 S. W. 63.

38. Craigmiles v. Hays, 75 Tenn.

720.

39. Marks v. Hill, 15 Gratt. (Va.) 400.

42

40. Beall v. Silver, 2 Rand. (Va.) 401.

41. Davidson v. Burke, 143 Ill. 139, 32 N. E. 514, 36 Am. St. Rep. 367.

42. Bean v. Smith, 2 Fed. Cas. No. 1,174, 2 Mason, 252.

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in his hands personal property of the debtor, to apply the value of such property on his debt. A complainant who purchased under execution property fraudulently conveyed, at a reduced price, and brought his bill to set aside the conveyance, should be allowed to annul the sale, and subject the property to the payment of his demand, upon the terms only of surrendering to defendant the remainder not sold."

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§ 6. Setting aside conveyance. In an action by a judgment creditor to set aside a conveyance of real property as fraudulent, plaintiff is only entitled to the setting aside of the conveyance so far as it obstructs his judgment. Where the fraud is established, the creditor is not entitled to a judgment setting aside and annulling the conveyance, but only that the property be sold and his judgment paid out of the proceeds. In a suit by creditors to subject land fraudulently conveyed as to them, but good between the parties, the conveyance should not be decreed void in toto."7 In an action to charge lands in the hands of a fraudulent grantee with the payment of a debt due by the equitable owner, it is not necessary that the deeds should be set aside.48 Equity may relieve in the case of a fraudulent conveyance by making the debt of the complainant a charge upon the land so conveyed, without avoiding the deed." Where an execution is levied on only a part of real estate which was conveyed by a debtor, it is error on decreeing the conveyance to be fraudulent to render a decree canceling the deed as a whole, but it should be canceled only as to the part levied upon. A voluntary transfer of personal property being valid as between the parties, will not be set aside, except so far as is necessary to pay the debt of the complaining creditor, and therefore the

50

49

51

judgment should provide that, on satisfying such debt, the property be returned to the grantee. A transfer of property in fraud of the rights of creditors can only be set aside at the instance of a creditor to the extent of his claim.52 Where plaintiff is the only creditor seeking relief as against alleged fraudulent transfers of personal property by defendant, and plaintiff's claim can be satisfied by the vacation of a particular transfer of a sum of money, it is not essential that the judgment should vacate all the transfers shown to be fraudulent.58

§ 7. Ordering sale of property.—It is held in most jurisdic tions that the decree in behalf of creditors, in an action brought by them to set aside a deed to land transferred by their debtor to avoid his debts, should, or may properly, order a sale of the land, and not remit the complainants to their execution at law. But in New York it has been held that the plaintiff is not entitled to a decree directing the sale of the real estate, even though he asked for it in his bill, that the court has power only to ap

55

51. Comyus v. Riker, 83 Hun, 471, 31 N. Y. Supp. 1042.

52. Ford v. Rosenthal, 74 Tex. 28, 11 S. W. 904.

53. Fox v. Erbe, 100 App. Div. (N. Y.) 343, 91 N. Y. Supp. 832.

54. Ark.-Turner v. Vaughan, 33 Ark. 454; Apperson v. Burgett, 33 Ark. 328.

Ga.-Cruger v. Tucker, 69 Ga. 557. Ind.-Simons v. Bushy, 119 Ind. 13, 21 N. E. 451; Hadley v. Hood, 94 Ind. 119. Compare Levy v. Crittenden, 120 Ind. 37, 22 N. E. 92.

Ky.-White v. Cates, 37 Ky. 357. Compare Mize v. Turner, 15 Ky. L. Rep. 67, 22 S. W. 83.

La. Decuir v. Veazey, 8 La. Ann. 453, under a statute.

Miss.-Hunt v. Knox, 34 Miss. 655. Ohio. Sockman V. Sockman, 18 Ohio, 362. The decree should not

54

order the sale of more property than would be sufficient to satisfy plaintiff's claim. Martin v. Elden, 32 Ohio St. 282.

S. C.-Wagener v. Mars, 27 S. C. 97, 2 S. E. 844.

Va.-Barger v. Buckland, 28 Gratt. 850; Greer v. Wright, 6 Gratt, 154, 52 Am. Dec. 111.

W. Va.-Chrislip v. Teter, 43 W. Va. 356, 27 S. E. 288.

Where 8 creditor attacks a conveyance of his deceased debtor as fraudulent, and there is no other creditor of the estate, the court may decree a sale of the property and an application of the proceeds to pay the plaintiff's debt. Hills v. Sherwood, 48 Cal. 386.

55. Hendrickson v. Winne, 3 How. Pr. (N. Y.) 127.

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point a receiver to take a conveyance of land from the debtor, and to make another conveyance thereof by his deed, which would be valid, and that courts of equity will not require a sale and conveyance of the land by a master without requiring the owner of the legal estate to unite in the conveyance to the purchaser or to the receiver.57 Where a fraudulent conveyance of land was made before judgment was recovered to prevent its lien attaching, a decree that the debtor and his fraudulent assignee join with the receiver in the suit in executing the conveyance to the purchaser on a sale of the land directed by the decree, is appropriate and valid.58 The precise amount of the debt should be first ascertained by the report and stated in the decree, and a reasonable time allowed the defendant to pay the amount into the office of the court before the sale is ordered. Where a deed void as to creditors is valid as between the parties, in a suit by the grantor's creditors to subject the land to the payment of their claims, other property of the grantor in the hands of parties to the suit will be first applied to the payment of the claims.60 If a judgment debtor has conveyed away land fraudulently, and retains other lands, a court of equity, on setting aside a conveyance at the suit of the judgment creditors, should direct a sale of a moiety of the whole, embracing in the

56. Walker v. White, 36 Barb. 592.

57. Dawley v. Brown, 65 Barb. 107.

58. McCalmont v. Lawrence, 15 Fed. Cas. No. 8.676, 1 Blatchf. 232.

59. Lewis v. Baker, 38 Tenn. 385. In Virginia, under a statute which forbids a decree of sale unless it appears that the rents and profits of the land subject to the lien will not satisfy the judgment in five years, before setting aside a deed as fraudulent towards creditors, the court should direct an inquiry as to whether plaintiff's debts could not be paid out of the rents and profits of

39

the property in five years. Cromie v. Hart, 18 Gratt. (Va.) 739.

In West Virginia, it is not required by statute, or by the general law on the subject, that all the creditors shall be convened, and their debts reported, or that it should be ascer tained, whether the rents will pay off the debts in five years, or in a reasonable time, before there can be a decree of sale. State v. Bowen, 38 W. Va. 91, 18 S. W. 375; Burt v. Timmons, 29 W. Va. 441, 2 S. E. 780, 6 Am. St. Rep. 664; Core v. Cunningham, 27 W. Va. 206.

60. Fones v. Rice, 9 Gratt. (Va.) 568.

moiety decreed to be sold the land not conveyed by the debtor, and taking only so much of the land conveyed as will, with the land retained by the debtor, constitute a moiety of the aggregate of the whole.61 Where a bill to subject land fraudulently conveyed by a debtor does not show any interest in the land conveyed in the fraudulent grantee, he cannot object that the decree directs the whole of the land sold. On a bill against fraudulent donees of a deceased person and his heir to subject the lands conveyed and those descended, the whole may be decreed to be sold to satisfy the plaintiff's debt.

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§ 8. Personal judgment.—Where a fraudulent purchaser holds the property, the creditor must subject it, and cannot take a personal money decree for his debt, or the value of the property, against such purchaser. Where the party has taken a conveyance in fraud of creditors of the property transferred, and his title has been declared void, and set aside in a suit by a receiver appointed in proceedings supplemental to execution, by a decree reciting that the property is in existence, a money judgment cannot, in addition, be rendered against him in favor of such receiver.65 A court of equity has power, however, to adapt its relief to the exigencies of the case, and may award a personal judgment against a party in lieu of setting aside a transfer where the facts establish such personal liability." Where the specific property conveyed in fraud of creditors to one participating in the fraud cannot be recovered, a decree for

61. McNew v. Smith, 5 Gratt. (Va.) 84.

62. Ballentine v. Beall, 4 Ill. 203. 63. Blow v. Maynard, 2 Leigh (Va.) 29.

64. Vance Shoe Co. v. Haught, 41 W. Va. 275, 23 S. E. 553; Ringold v. Suiter, 35 W. Va. 186, 13 S. E. 46.

65. Harrison v. Obermeyer, etc., Brewing Co., 64 App. Div. (N. Y.) 499, 72 N. Y. Supp. 270; Van Blar

com v. Isaac, 92 Wis. 541, 66 N. W. 617.

66. Fox v. Rebe, 100 App. Div. (N. Y.) 343, 91 N. Y. Supp. 832, citing Baily v. Hornthal, 154 N. Y. 648, 49 N. E. 56, 61 Am. St. Rep. 645; Murtha v. Curley, 90 N. Y. 372. See also Varnum v. Behn, 63 App. Div. (N. Y.) 570, 71 N. Y. Supp. 903; Greer v. Wright, 6 Gratt (Va.) 154, 52 Am. Dec. 111.