make a further fraudulent transfer of the property." To justify an injunction to restrain the further disposition of property conveyed by a debtor in fraud of his creditors, it must appear that the suing creditor has obtained a judgment or other lien upon such property; that the fraudulent vendee is insolvent;92 and is threatening or about to dispose of the property; that the creditor has not a complete remedy at law; and that an injunction is necessary to the preservation of the alleged rights of the plaintiff. The fraudulent grantee of a decedent may be enjoined from further disposing of the property, although the complaining creditor has not reduced his claim to judgment," or acquired any lien upon the property." Where the further alienation of land held under a conveyance fraudulent and void as to complaining creditors is enjoined until their claims are paid, the quiescent creditors cannot take advantage of the pro 95 90. Hart v. Hart, 52 Ga. 376; Oberholser v. Greenfield, 47 Ga. 530; Cubberge v. Adams, 42 Ga. 124; Bigelow v. Andress, 31 Ill. 322. 91. N. Y.-Falconer v. Freeman, 4 Sandf. Ch. 565, a lien acquired by attachment is sufficient to justify an injunction to aid its enforcement. Ga. Stillwell V. Savannah Grocery Co., 88 Ga. 100, 13 S. E. 963; Mayer v. Wood, 56 Ga. 427. 77. Mo.-Spitz v. Kerfoot, 42 Mo. App. Wis.-Almy V. Platt, 16 Wis. 169. 92. Fla.-Fuller v. Cason, 26 Fla. 476, 7 So. 870. Ga.-Einstein v. Lee, 89 Ga. 130, 15 S. E. 27; Stillwell V. Savannah Grocery Co., supra; Dereny v. Hicks, 82 Ga. 240, 8 S. E. 179; Mayer v. Wood, supra. Ill.-Bigelow v. Andress, 31 Ill. 322. Md.-Connolly v. Riley, 25 Md. 402. Wash.-Rockford Watch Co. v. Rumpf, 12 Wash. 647, 42 Pac. 213. 93. Rockford Watch Co. v. Rumpf, supra. 94. Phelps v. Foster, 18 III. 309; Spitz v. Kerfoot, 42 Mo. App. 77; Brough v. Greist, 1 Danph Co. Rep. (Pa.) 243; Almy v. Platt, 16 Wis. 169. 95. N. Y.-MacKaye v. Soule, 25 N. Y. Supp. 798. Ga.-Williams v. Harris, 95 Ga. 453, 22 S. E. 682. Iowa.-Joseph v. McGill, 52 Iowa, 127, 2 N. W. 1007. N. J.-Williams v. Michenor, 11 N. C.-Ellett v. Newman, 92 N. C. 519. Pa.-Appeal of Fowler, 87 Pa. St. 449. Wis.-Hoxie v. Price, 31 Wis. 82. 96. Appeal of Fowler, 87 Pa. St. 449. 97. Loomis v. Tifft, 16 Barb. (N. Y.) 541. ceedings; and when the complaining creditors are paid the land is released from the injunction.98 3 2 § 24. Injunction to restrain sale under fraudulent judgment or mortgage. An injunction to restrain the sale of a debtor's property under a judgment which was fraudulently obtained or confessed, or the foreclosure of a fraudulent mortgage, will lie in a proper case, at the instance of a creditor who has established his debt by judgment, or who has acquired a lien on the property," where the insolvency of the mortgagee is shown,' and where there is sufficient evidence that the mortgagee is not a bona fide creditor, without notice of the fraud. A sale under void chattel mortgages given other creditors cannot be enjoined by creditors without proof of the levy of execution as well as obtaining judgment. One to whom chattels are mortgaged is entitled to equitable relief against a subsequent fraudulent mortgage on the chattels, and a judgment foreclosing the same, without regard to whether the mortgagor may be solvent or insolvent when his debt becomes due. A court may enjoin the enforcement of its own decree of foreclosure shown in a creditors' suit to be fraudulent as to creditors.5 Attaching creditors of one whose property has been taken under execution to satisfy a judgment may, where fraud is alleged in obtaining the judgment, have an injunction to restrain proceedings on the execution, or any disposition of the proceeds of sale until such time as will enable them to obtain judgments. 98. Appeal of Fowler, 87 Pa. St. 449. See also Fuqua v. Farmers', etc., Nat. Bank, 18 Ky. L. Rep. 101, 35 S. W. 545. 99. N. Y.-Mills v. Block, 30 Barb. 549, judgment overruled; Hall V. Stryker, 27 N. Y. 596. Ga. Peyton v. Lamar, 42 Ga. 131. Ill.-Shufeldt v. Bochm, 96 Ill. 560. N. J.-Oakley v. Young, 6 N. J. Eq. 453. Pa.-Kelly v. Herb, 157 Pa. St. 41, 27 Atl. 539; Artman v. Giles, 155 Pa. St. 409, 26 Atl. 668. 1. Atlanta Nat. Bank v. Fletcher, 80 Ga. 327, 9 S. E. 1072. 2. Putney v. Kohler, 84 Ga. 528, 11 S. E. 127. 3. Glorieux v. Schwartz, 53 N. J. Eq. 231, 28 Atl. 470. 4. McCormick v. Hartley, 107 Ind. 248, 6 N. E. 357. 5. Robinson v. Springfield Co., 21 Fla. 203. 6. People v. Van Buren, 136 N. Y. 252, 82 N. E. 775, 20 L. R. A. 446; 25. Violation of injunction and punishment.-Where an injunction issues upon a creditors' bill, prohibiting the defendant from transferring, assigning, delivering, or in any way disposing of his property, any active interference with the property by the defendant or his agent, for the purpose of having the legal title to the same transferred to another, whereby the equitable lien which the complainant has acquired thereon by the filing of his bill is or may be defeated, is a breach of the injunction; and the fact that the defendant, in violating the injunction, acts under the erroneous advice of counsel, will not protect him from a fine sufficient to compensate the adverse party for the injury sustained. Where attaching creditors obtain an injunction to restrain the sale of property under fraudulent judgments against their debtor, and the persons against whom such injunction is granted violate the same by disposing of and purchasing the property, the amount of the fine is properly fixed at the sum due on the claims of the attaching creditors. A mortgagee of chattels, having been enjoined from enforcing his mortgage, is guilty of contempt by replevying the chattels, and should be condemned by fine equal to the expense he has occasioned the owner of the property in the premises." § 26. Appointment of receiver.-Equity will not interfere, as a general rule, at the instance of a general creditor before judgment, to prevent, by the appointment of a receiver, the further disposition of property conveyed in fraud of such creditor.10 There are, however, exceptions to the rule, and a receiver Bowe v. Arnold, 31 Hun (N. Y.), 256; 252, 32 N. E. 775, 33 N. E. 743, 20 L. R. A. 446, aff'g 63 Hun, 635, 18 N. Y. Supp. 734. 9. In re Feeny, 8 Fed. Cas. No. 4,715, 1 Hask. 304. 10. U. S.-Fechheimer v. Baum, 37 Fed. 167. Ala.-Weis v. Goetter, 72 Ala. 259. D. C.-Clark v. Walter T. Bradley Coal, etc., Co., 6 App. Cas. 437. 11 may be appointed whenever the complainant has a lien on the property, or a special right to have the property or funds in controversy applied to the payment of his claim.1 A court of equity, auxiliary to its jurisdiction to set aside a fraudulent transfer, may appoint a receiver to preserve the property involved during the pendency of the litigation, where it appears that there is such a reasonable probability of success on the part of the complainants in finally subjecting such property to the satisfaction of their claim as would justify the court in disturbing defendant in their possession of it;12 that the property or its rents and profits, are in danger of being lost, wasted, injured, destroyed, disposed of, or gotten out of the reach of the court so that they will not be forthcoming to satisfy a decree in plaintiff's favor;13 and that a receiver is necessary to afford the plaintiff adequate relief. But where there is a sufficient equity in Ga. Oberholser v. Grienfield, 47 Ga. 530. Va.-Rorrer v. Guggenheimer, 87 Va. 533, 12 S. E. 1054. See also Nature of relief granted, chap. XIX, § 2, supra. 11. Cohen v. Meyers, 42 Ga. 46, and cases cited in preceding note. See also Nature of relief granted, chap. XIX, § 2, supra. 12. Waeber v. Rosenstein, 6 App. Div. (N. Y.) 447, 39 N. Y. Supp. 593; Heard v. Murray, 93 Ala. 127, 9 So. 514; Micon v. Moses, 72 Ala. 439. 13. N. Y.-Waeber v. Rosenstein, supra. Ala.-Head v. Murray, supra. Ill. Jeffery v. J. W. Butler Paper Ind. Springfield Grocery Co. v. Thomas, 3 Ind. T. 330, 58 S. W. 557. Iowa.-Hirsch v. Israel, 106 Iowa, 498, 76 N. W. 811; Clark v. Raymond, 86 Iowa, 661, 53 N. W. 354. Minn.-Mower v. Hanford, 6 Minn. 535. N. C.-Ellett v. Newman, 92 N. C. 519. Va.-Shannon v. Hanks, 86 Va. 338, 13 S. E. 437; Smith v. Butcher, 28 Gratt. 144. 14. N. Y.-St. John Woodworking Co. v. Smith, 82 App. Div. 348, 82 N. Y. Supp. 1025, aff'd 178 N. Y. 629, 71 N. E. 1139; National Union Bank v. Riger, 38 App. Div. (N. Y.) 123, 56 N. Y. Supp. 545. U. S.-National Bank of Republic v. Hobbs, 118 Fed. 626. Iowa.-Clark v. Raymond, 86 Iowa, 661, 53 N. W. 354. Mich.-Tregaskie v. Judge Detroit Super. Ct., 47 Mich. 509, 11 N. W. 293. Wis.-Ahlheuser v. Doud, 74 Wis. 400, 43 N. W. 169, appointment of receiver to take charge of condemnation money, the property having been taken in condemnation proceedings after the levy. 16 the property to satisfy plaintiff's judgment,15 or enough money to pay plaintiff's claim has been deposited in court,' or proceedings at law would afford ample redress and protection," the appointment of a receiver is not necessary and one will not be appointed. The safer and better practice, where a creditor brings action to set aside a transfer of real estate, is to set aside the conveyance so far as it obstructs the plaintiff's judgment, and permit him to pursue his remedy on his judgment in the usual way by the issue of execution, and the appointment of a receiver should not be resorted to, ordinarily, unless good reason is made to appear why the rights of the plaintiff cannot be properly protected in the ordinary way by the issue of execution.18 The appointment of a receiver is a power to be exercised with a considerable degree of caution,19 and where property has been sold by an insolvent debtor, which it is sought to make liable for his debts, a receiver will not usually be appointed to take the property out of the hands of the purchasers, where the latter are not charged to be insolvent.20 Courts of equity will not ordinarily grant an application for the appointment of a receiver ex parte, but only after notice or rule to show 15. National Union Bank v. Riger, 38 App. Div. (N. Y.) 123, 56 N. Y. Supp. 545. 16. St. John Woodworking Co. v. Smith, 82 App. Div. 348, 82 N. Y. Supp. 1025, aff'd 178 N. Y. 629, 71 N. E. 1139. 17. Pearce v. Jennings, 94 Ala. 524, 10 So. 511. 18. Harris v. Osnowitz, 35 App. Div. (N. Y.) 594, 55 N. Y. Supp. 172; Bryer v. Foerster, 14 App. Div. (N. Y.) 315, 43 N. Y. Supp. 801. 19. National Union Bank v. Riger, 38 App. Div. (N. Y.) 123, 56 N. Y. Supp. 545; Shannon v. Hanks, 88 Va. 338, 13 S. E. 437. 20. N. Y.-Waeber v. Rosenstein, 6 App. Div. (N. Y.) 447, 39 N. Y. Supp. 593; Cassilear v. Simms, 8 Paige, 273. Ala. Freeman v. Stewart, 119 Ala. 158, 24 So. 31. Ga. Turnipseed v. Kentucky Wagon Co., 97 Ga. 258, 23 S. E. 84; Mills v. Webb, 89 Ga. 734, 15 S. E. 635; Stillwell v. Savannah Grocery Co., 88 Ga. 100, 13 S. E. 963; Kehler v. G. W. Jack Mfg. Co., 55 Ga. 639. Minn.-Mower v. Hanford, 6 Minn. 535. Where the evidence is conflicting as to whether the vendor is able to respond in damages, it is no abuse of discretion to refuse to appoint a receiver. Sheffield v. Parker, 96 Ga. 774, 22 S. E. 450. |