nor is a return of the execution unsatisfied necessary where the action seeks to subject the property fraudulently conveyed to the payment of a judgment which in itself constitutes a lien upon the property," or where a specific lien upon the property has otherwise been acquired by the creditor.50

§ 50. Sufficiency of return.-The object of the return of an execution unsatisfied is to show the exhaustion, by the creditor, of his legal remedy, but no precise rule is laid down as to what will constitute a sufficient exhaustion of legal remedy to justify resort to equity. It has been held that the fact that the writ has been returned unsatisfied is not sufficient, but that it must be returned nulla bona. But the sufficiency of exhaustion of lega!

remedy and of the return seem to depend largely upon the circumstances of the case. It has been held that a creditor might apply to a court of equity to set aside a fraudulent conveyance made by his debtor and to subject the land fraudulently conveyed, where he has obtained an ineffectual judgment against his deceased debtor's personal representatives, and failed to obtain judgment against the heir because he had "nothing by de

Ill. App. 547; Fusze v. Stern, 17 Ill.
App. 429.

Iowa.-Brainard v. Van Kuran, 22
Iowa, 261.

Miss.-Lewis v. Cline (1888), 5 So. 112.

Mont.-Merchants' Nat. Bank v. Greenhood, 16 Mont. 395, 41 Pac. 250, 851.

Neb.-Foley V. Doyle, 1 Neb. (Unoff.) 643, 95 N. W. 1067.

N. H.-Tappan v. Evans, 11 N. H. 311.

Ohio. Gormley v. Potter, 29 Ohio St. 597.

Wis.-Galloway v. Hamilton, 68 Wis. 651, 32 N. E. 636.

49. Buswell v. Lincks, 8 Daly (N. Y.), 518; Stephens v. Parvin (Colo. 1904), 78 Pac. 688; Austin v. First

Nat. Bank, 47 Ill. App. 224; Spooner v. Travlers' Ins. Co., 76 Minn. 311, 79 N. Y. 305, 77 Am. St. Rep. 651; Pulliam v. Taylor, 50 Miss. 551.

50. Case v. Beauregard, 101 U. S. 688, 25 L. Ed. 1004; Emery v. Yount, 7 Colo. 107, 1 Pac. 686; Fletcher v. Tuttle, 97 Me. 491, 54 Atl. 1110, lien acquired by attachment not effectual; Grandin v. First Nat. Bank (Neb. 1904), 98 N. W. 70, lien by attachment; Level Land Co. No. 3 v. Sivyer, 112 Wis. 442, 88 N. W. 317; Gilbert v. Stockman, 81 Wis. 602; Evans v. Virgin, 69 Wis. 148, 33 N. W. 585. where attachment had not become a specific lien.

51. Stephens V. Parvin (Colo. 1904), 78 Pac. 688.

53

54

scent, 52 where the creditor, whose claim was purely legal committed his debtor in execution, and the debtor escaped without paying the debt, where it was shown by parol testimony of the sheriff that he made certain entries on the execution and that the property levied on has not been sold, where the return of the sheriff showed that partners against whom an execution had been taken out were not, either as partners or individuals, possessed of any property which could be taken by execution,55 where an execution issued against a firm and its members has been returned nulla bona as to the firm but not against some of the members.56 But where the execution directed to a sheriff was, in his absence, received and returned by the coroner "no property found," it was held that there was no return nulla bona upon which to base an action to set aside a fraudulent conveyance.57 An execution returned nulla bona before the return day thereof is sufficient upon which to base a suit in equity to set aside a fraudulent conveyance,58 although so made at the request of the plaintiff,59 unless collusion with the plaintiff is shown. Where a creditor attacking a conveyance as fraudulent has procured issuance of execution on one judgment and return thereof unsatisfied, relief will be given him as to another judgment on which execution has not been issued, the issuance and return of execution on the first judgment conferring jurisdiction on the court." But the issuance of a single execution is not sufficient where the creditor has permitted his judgment to become dormant by lapse of the statutory period of time without further attempt to enforce it.62

52. Harrison v. Campbell, 36 Ky.

263.

5.3. Poague v. Boyce, 20 Ky. 70. 54. National Bank of Newberry v. Kinard, 28 S. C. 101, 5 S. E. 464. 55. Randolph v. Daly, 16 N. J. Eq. 313.

56. Hyatt v. Dusenbury, 12 Civ. Proc. R. (N. Y.) 152.

57. Johnson v. Elkins, 90 Ky. 163, 13 S. W. 448, 8 L. R. A. 552.

58. Reeves v. Sherwood, 45 Ark. 520; Barth v. Heider, 7 D. C. 71.

59. Forbes v. Waller, 25 N. Y. 430. 60. Leggat v. Leggat, 79 App. Div. (N. Y.) 141, 80 N. Y. Supp. 327.

61. St. John Woodworking Co. v. Smith, 82 App. Div. (N. Y.) 348, 82 N. Y. Supp. 1025; Selz v. Hocknell, 63 Neb. 503, 88 N. W. 767.

62. Mullen v. Hewitt, 103 Mo. 639, 15 S. W. 924.

65

63

8 51. Effect of return of execution as evidence.-The return of an execution unsatisfied is prima facie evidence of exhaustion of the creditor's legal remedies, and he is not required to prove the debtor's insolvency in any other way, and a return nulla bona has been held to be conclusive. It is the duty of the sheriff to ascertain whether the debtor has property to satisfy the execution, and when the sheriff makes return that he has no property the legal remedy is exhausted. It has been held that where an execution was issued against a grantor about two weeks after the execution of a voluntary conveyance, and was returned about a month later unsatisfied, it was evidence of the grantor's condition at the time the conveyance was made, but that the return of an execution nulla bona five years after the making of a gift by a father to his son was not sufficient to establish the father's insolvency when the gift was made. The right of the creditor to equitable relief as against a debtor's fraudulent conveyance will not be defeated by a subsequent levy by the sheriff upon an equitable interest of the debtor in property which was not subject to sale under execution, after the execution had been returned unsatisfied."

67

66

52. Necessity of outstanding execution.-If an action be

63. N. Y.-Leggat v. Leggat, 79 App. Div. 141, 80 N. Y. Supp. 327; Baker v. Potts, 73 App. Div. 29, 76 N. Y. Supp. 406; Hyatt v. Dusenbury, 12 Civ. Proc. R. 152.

Cal.-Windhaus v. Boots (1890), 25 Pac. 404.

Colo.-Goddard v. Fischel-Schlichten Importing Co., 9 Colo. App. 306, 48 Pac. 279.

Ill.—Lewis v. Lamphere, 79 Ill.

187.

Ind.-Warmouth v. Dryden, 125 Ind. 355, 25 N. E. 433; Lee v. Lee, 77 Ind. 251.

Me.-Corey v. Greene, 51 Me. 114; Hartshorn v. Eames, 31 Me. 93.

S. C.-Bates v. Cobb, 29 S. C. 395, 7 S. E. 743, 13 Am. St. Rep. 742. Wis.-Oppenheimer v. Collins, 115 Wis. 283, 91 N. W. 690, 60 L. R. A. 406; Daskam v. Neff, 79 Wis. 161, 47 N. W. 1132; Hopkins v. Joyce, 78 Wis. 443, 47 N W. 722; Zweig v. Horican Iron, etc., Co., 17 Wis. 362.

64. United States v. Lotridge, 26 Fed. Cas. No. 15,628, 1 McLean, 246. 65. Pope v. Cole, 55 N. Y. 124, 14 Am. Rep. 198.

66. Fuller v Brown, 76 Hun (N. Y.), 557, 28 N. Y. Supp. 189.

67. Windhaus V. Bootz (Cal. 1890), 25 Pac. 404.

68. Wright v. Petrie, 1 Sm. & M. Ch. (Miss.) 282, 326.

brought to set aside a fraudulent conveyance in aid of an execution, the execution must remain outstanding, especially where the property is personalty whereon a lien exists only by virtue of the levy." It has been held, however, that a judgment creditor might sue to set aside a conveyance as fraudulent, although execution on the judgment had been returned unsatisfied," that where execution has been issued and returned unsatisfied, an outstanding execution is not necessary," and that such an action is not affected by the fact that, during its pendency, the execution was returned unsatisfied." Though the usual course is for the creditor to issue and deliver to the sheriff an execution, and then bring an equitable action in its aid, still the court having jurisdiction of an equitable action for certain purposes, may grant relief as to the fraudulent conveyance, though the execution has been returned.73

§ 53. Issuance and return of execution against decedent's estate. While courts of equity will not assist a creditor to the satisfaction of his debt out of property fraudulently conveyed by his debtor until he has exhausted his remedy at law, yet creditors of an insolvent estate, who have probated their claims, being in effect prohibited from suing the executor or administrator of an insolvent estate, may resort in the first instance to a court of equity to subject to the payment of their claims property fraudulently conveyed by the debtor, as a court of law is inadequate by its powers to do so.74 In New York, the statute provides that real estate belonging to any deceased person shall

69. Adsit v. Butler, 87 N. Y. 585; Blish v. Collins, 68 Mich. 542, 36 N. W. 731, the lien acquired by levy of the execution must exist at the time the bill is filed; Paulson v. Ward, 4 N. D. 100, 58 N. W. 792.

70. Wilcox v. Payne, 55 Hun (N. Y.), 607, 8 N. Y. Supp. 407.

71. Haswell v. Lincks, 87 N. Y. 637.

72. Royer Wheel Co. v. Fielding, 31 Hun (N. Y.), 274, 18 N. Y. Wkly. Dig. 409.

73. Gullickson v. Madsen, 87 Wis. 19, 57 N. W. 965.

74. Hamilton v. Mississippi College, 52 Miss. 65; Lyons v. Murray, 95 Mo. 23, 8 S. W. 170, 6 Am. St. Rep. 17.

not be affected by any judgment against his executors or administrators.75 Where more than one year has elapsed without administration having been granted on the estate of the deceased judgment debtor, it is not necessary that the creditor obtain a return of nulla bona before resorting to land conveyed in fraud of creditors. But a judgment creditor who has not exhausted his legal remedies cannot come into equity to subject property fraudulently conveyed by the debtor in his lifetime without alleging and proving a deficiency of legal assets." Where the statute gives a simple contract creditor of a decedent the right to sue to set aside a conveyance of the decedent the fact that the creditor has secured a judgment does not prevent him from occupying the position of a simple contract creditor under the statute.78 In New York statutory provisions permit the issuance of an execution against the estate of a decedent on a judgment rendered before his death, and such judgment may be enforced by execution against any property upon which it is a lien with like effect as if the judgment debtor was still living." But the judgment creditor may sue the grantee of the deceased judgment debtor to set aside a conveyance, though no execution had been issued, where the judgment never became a lien on the debtor's realty, in consequence of which execution could not be issued after the death of the debtor.so

54. Necessity of lien in general.-As a general rule creditors who seek to reach property of their debtor fraudulently held by third persons, by asking a court of equity to set aside the conveyance, must have obtained a lien thereon.81 The juris

75. Lichtenberg v. Herdtfelder, 103 N. Y. 302, 8 N. E. 526. 76. Treadway v. Turner, 10 Ky. L. Rep. 949, 10 S. W. 816.

77. Quarles v. Grigsby, 31 Ala.

172.

78. Jones v. Davenport, 44 N. J. Eq. 33, 13 Atl. 652.

79. Adsit v. Butler, 87 N. Y. 585,

aff'g 23 Hun, 45; Code Civ. Proc., § 1380.

80. LeFevre v. Phillips, 81 Hun (N. Y.), 232, 30 N. Y. Supp. 709.

81. N. Y.-Frothingham v. Hodenpyl, 135 N. Y. 630, 32 N. E. 240; Crippen v. Hudson, 13 N. Y. 161; Jacobstein v. Abrams, 41 Hun, 272; Mohawk Bank v. Atwater, 2 Paige,