tor's bill cannot be maintained to set aside as fraudulent a conveyance by the debtor and subject the land to the judgment.'

2

41. Enforcement of claims against estates of decedents.— Equity has jurisdiction to set aside a fraudulent conveyance, made by a deceased debtor, at the suit of a general creditor, and, as a judgment and execution against the personal representative would be unavailing, the creditor may resort to a court of equity in the first instance without having secured a judgment at law, especially where it appears that the estate is insolvent or that there are not sufficient legal assets in the hands of the administrator for the payment of the debt,3 and the creditor has had his claim allowed by the proper tribunal, or where the claim is not disputed.

The allowance of a claim by a proper tribunal is

1. Parmenter v. Lomax, 68 Kan. 61, 74 Pac. 634.

2. Nill v. Phelps, 20 Misc. Rep. (N. Y.) 488, 46 N. Y. Supp. 662; Gardner v. Lansing, 28 Hun (N. Y.), 413; Spicer v. Ayers, 2 Thomps. & C. (N. Y.) 626; Loomis v. Tifft, 16 Barb. (N. Y.) 541; Steere v. Hoagland, 39 Ill. 264; Johnson v. Jones, 79 Ind. 141; Mallow v. Walker, 115 Iowa, 238, 88 N. W. 452, 91 Am. St." Rep. 158; Nicters v. Brockman, 11 Mo. App. 600; Schurtz v. Howell, 30 N. J. Eq. 418; Fowler's Appeal, 87 Pa. St. 449; Cairus v. Ingram, 8 Pa. Super. Ct. 514, right of creditor obtaining verdict before death of grantor; Gardner v. Gardner, 17 R. I. 751, 24 Atl. 785; Brown v. McDonald, 1 Hill Eq. (S. C.) 297; Longeway v. Mitchell, 17 Grant Ch. (U. C.) 190.

3. Battle v. Reid, 68 Ala. 149; Dunn v. Murt, 4 Mackey (D. C.), 289.

4. N. Y.-Phelps V. Platt, 50 Barb. 430; Loomis v. Tifft, supra; Spicer v. Ayers, supra.

Ala.-Halfman v. Ellison, 51 Ala.

543.

Ark.-Williamson v. Furbush, 31 Ark. 539; Wright v. Campbell, 27 Ark. 637.

Cal.-Hills v. Sherwood, 48 Cal.

386.

D. C.-Offutt v. King, 1 MacArthur, 312.

Ill.-White v. Russell, 79 Ill. 155; Hall v. Black, 21 Ill. App. 293.

Ind.-Love v. Mikals, 11 Ind. 227;
Kipper v. Glancey, 2 Blackf. 356.

Mo.-Lyons v. Murray, 95 Mo. 23,
8 S. W. 170, 6 Am. St. Rep. 17.
N. J.-Haston v. Castner, 29 N. J.
Eq. 536.

Pa.-Irwin v. Hess, 12 Pa. Super.
Ct. 163.

S. C.-Reeder v. Speake, 4 S. C.

293.

Tenn.-Armstrong V. Croft, 71 Tenn. 191; Spencer v. Armstrong, 59 Tenn. 707.

5. Nieters v. Brockman, 11 Mo. App. 600; Merchants', etc., Transp. Co. v. Borland, 53 N. J. Eq. 282, 21 Alt. 272.

6

regarded in the nature of a judgment, and it is not necessary that a creditor should have a lien to set aside a conveyance made by the decedent. The jurisdiction of courts of equity in relation to the enforcement of the claims of creditors against the estate of a decedent is original and primary resting upon the general powers of a court of equity, and not, as in other cases, ancillary or in aid of the legal tribunals whose powers are found inadequate to the emergency. Jurisdiction is expressly conferred

9

in some instances by statutes authorizing the creditor of a decedent, whose claim remains unpaid after the assets in the administrator's hands are exhausted, to sue in behalf of himself and other creditors to set aside a fraudulent conveyance of property made by the decedent, upon the refusal of the administrator to do so, or by making the debts of a decedent a lien upon the lands of the decedent for a certain period subsequent to his death,10 The creditor's claim should be presented to the proper tribunal for approval and, in the absence of a judgment, the allowance of the claim has in some cases been held necessary.1 A creditor at large cannot, however, maintain an action to enforce a resulting trust in lands purchased and paid for by his debtor and conveyed to another, although the debtor has died insolvent, until his claim has been prosecuted to judgment against the personal representatives of the debtor.12

6. Fletcher v. Holmes, 40 Me. 364; Winn v. Barnett, 31 Miss. 653; Adoue v. Spencer, 59 N. J. Eq. 231, 46 Atl. 543.

7. Hagan v. Walker, 14 How. (U. S.) 29, 14 L. Ed. 312; Shell v. Boyd, 32 S. C. 359, 11 S. E. 205; Bullock v. Gordon, 4 Munf. (Va.) 450.

8. Hagan v. Walker, 14 How. (U. S.) 29, 14 L. Ed. 312; Pharis v. Leachman, 20 Ala. 662; Claflin v. Ambrose, 37 Fla. 78, 19 So. 628, enforcement of claim against estate of deceased partner.

11

9. Harvey v. McDonnell, 113 N. Y. 526, 21 N. E. 695.

10. Fowler's Appeal, 87 Pa. St. 449.

11. Williamson V. Furbush, 31 Ark. 539; Mesmer v. Jenkins, 61 Cal. 151; Houston v. Maddux, 179 Ill. 377, 53 N. E. 599; Austin v. Bruner, 169 Ill. 178, 48 N. E. 449, aff'g 65 Ill. App. 301; Hall v. Black, 21 Ill. App. 293; O'Connor v. Boylan, 49 Mich. 209, 13 N. W. 519; Rutherford v. Alyea, 54 N. J. Eq. 411, 34 Atl. 1078.

12. Estes v. Wilcox, 67 N. Y. 264; Allyn v. Thurston, 53 N. Y. 622.

14

§ 42. Adjudications equivalent to judgment.-The rule that a creditor must first obtain a judgment at law before he can ask relief in equity applies only where the court is called on to aid a creditor in furtherance of his legal remedy, and does not apply when the court is asked to give effect to its own judgment.13 A party has the right to the same remedies to enforce the collection of a decree in chancery for a specific sum of money that he has to enforce a judgment at law, and such a decree is sufficient after the death of a debtor upon which to found an application in equity to set aside a fraudulent conveyance. Where a purchaser at a judicial sale refused to complete his purchase, and was ordered by the court to pay a certain sum as damages, this afforded sufficient basis for a creditor's suit to set aside conveyances made by the purchaser in fraud of creditors.16 in the nature of a creditor's bill may be maintained to subject property fraudulently conveyed by a husband to a decree for alimony in a divorce suit, although execution has not been taken out, 17

15

A suit

843. Waiver of failure to secure judgment.-The failure of a creditor to obtain judgment at law against his debtor before suing in equity to set aside a conveyance as fraudulent may be waived. 18 Where a trust deed that was the subject of attack recognized plaintiff's claim, the necessity for a judgment before filing a bill in equity did not exist.19

844. Necessity of issuance of execution generally.-In jurisdictions where the general doctrine that all available legal remedies

13. Brown v. McDonald, 1 Hill Eq. (S. C.) 297.

14. Weightman v. Hatch, 17 Ill. 281; Farnsworth v. Strasler, 12 Ill. 482.

15. Aetne Nat. Bank v. Manhattan L. Ins. Co., 24 Fed. 769.

18. Lydecker v. Smith, 44 Hun (N. Y.), 454.

17. Twell v. Twell, 6 Mont. 19, 9 Pac. 537.

18. McMakin v. Stratton, 82 Ky. 226.

19. Springfield Grocery Co. V. Thomas, 3 Ind. T. 330, 58 S. W. 557. See Stephens v. Curran, 28 Mont. 366, 72 Pac. 753.

must be pursued and exhausted before a resort to a court of equity is maintained, the rule is enforced that the creditor must not only obtain a judgment, but also a valid execution against the property of the debtor,20 and that such execution must be returned unsatisfied to show that the legal remedy has been exhausted.21 Execution is necessary even where the property sought to be reached stands in the name of a third person and has never been in the name of the debtor.22 There are, however, certain exceptions or limitations to the general rule stated above, which will be noted hereafter.23

45. Rule where judgment is not per se a lien. In those jurisdictions where the recovery and docketing of a judgment does not create a lien upon the real estate of the debtor, a creditor must issue an execution against the property conveyed before he can maintain a bill in equity to set aside a conveyance thereof as fraudulent." Where the property involved is personalty, since

20. Adsit v. Butler, 87 N. Y. 585; Bostwick v. Scott, 40 Hun (N. Y.), 212; McCullough v. Colby, 5 Bosw. (N. Y.) 477; North American F. Ins. Co. v. Graham, 7 Sandf. (N. Y.) 197; Chandler v. Colcord, 1 Okla. 260, 32 Pac. 330; Bassett v. St. Albans Hotel Co., 47 Vt. 313.

21. Gilbert v. Stockman, 81 Wis. 602, 51 N. W. 1076, 52 N. W. 1045, 29 Am. St. Rep. 922. See also cases cited in preceding note; §§ 48, 49, infra.

22. Allyn v. Thurston, 53 N. Y. 622.

23. See §§ 47, 48, infra.

24. N. Y.-See Snedecker v. Snedecker, 18 Hun, 355, one claiming under a judgment recovered after the fraudulent conveyance cannot, in a proceeding for the distribution of surplus arising from a foreclosure of a prior mortgage, attack the convey.

ance, since his execution has not been returned unsatisfied. But see Hillyer v. LeRoy, 179 N. Y. 369, 72 N. E. 237, 103 Am. St. Rep. 919, the rule in New York is that a judgment recovered and docketed becomes a lien upon any real estate which may have been fraudulently conveyed as well as upon that actually held by the judgment debtor.

Ark.-Doster V. Manistee Nat. Bank, 67 Ark. 325, 55 S. W. 137, 77 Am. St. Rep. 116, 48 L. R. A. 334.

Iowa.-Byers v. McEnirny, 117 Iowa, 499, 91 N. W. 797; Joye v. Perry, 111 Iowa, 567, 82 N. W. 941.

Wis.-French Lumbering Co. V. Theriault, 107 Wis. 627, 83 N. W. 927, 81 Am. St. Rep. 856, 51 L. R. A. 910, in the absence of seizure under execution or attachment, a judgment creditor has no lien but only a right to a lien upon the property fraudu

a judgment does not operate as a lien upon personalty, the creditor is required not only to obtain a judgment, but also to take out an execution giving him a legal preference or lien upon the goods and chattels of the debtor.25

26

§ 46. Rule where creditor has acquired a lien.-In New York there is some conflict in the decisions as to whether the judgment alone is sufficient to enable the creditor to bring a suit to set aside a fraudulent conveyance of real estate in aid of his legal remedy. It is not necessary to issue an execution in order to establish a judgment creditor's lien upon the real estate of his debtor, as that is bound by the docketing of the judgment." It has sometimes been held that the lien of the judgment alone gave the plaintiff his standing in a court of equity without any execution, and that it was not necessary for the judgment creditor to do more than recover and docket his judgment. But the weight of authority seems to be that the judgment, with an execution issued and not returned, is sufficient to enable the plaintiff in such case to maintain his action, and that a return unsatisfied is unnecessary,29 although it has been held that the execution should both be issued and returned unsatisfied.30 But where execution has been issued and returned

28

lently conveyed; Gilbert v. Stockman, 81 Wis. 602, 51 N. W. 1076, 52 N. W. 1045, 29 Am. St. Rep. $22.

25. Brinkerhoff v. Brown, 4 Johns. Ch. (N. Y.) 671; Wadsworth V. Schisselbauer, 32 Minn. 84, 19 N. W. 390; Robert v. Hodges, 16 N. J. Eq. 299; Dunham v. Cox, 10 N. J. Eq. 437, 64 Am. Dec. 460; Frye v. Miley, 54 W. Va. 324, 46 S. E. 135.

26. Royer Wheel Co. v. Fielding, 61 How. Pr. (N. Y.) 437.

27. Underwood v. Sutcliffe, 77 N. Y. 58; Shaw v. Dwight, 27 N. Y. 244, 84 Am. Dec. 275.

28. Payne v. Sheldon, 63 Barb. (N. Y.) 169; Clarkson v. DePeyster, 3 Paige (N. Y.), 320; Mohawk Bank v. Atwater, 2 Paige (N. Y.), 54; Reade v. Livingston, 3 Johns. Ch. 481, 8 Am. Dec. 520.

29. Fox v. Moyer, 54 N. Y. 125; Mechanics', etc., Bank v. Dakin, 51 N. Y. 519; McCullough v. Colby, 18 N. Y. Super. Ct. 477; North American Fire Ins. Co. v. Graham, 7 N. Y. Super. Ct. 197; Hendricks v. Robinson, 2 Johns. Ch. 283.

30. Shaw v. Dwight, 27 N. Y. 249, 84 Am. Dec. 275; Crippen v. Hudson, 13 N. Y. 161.