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diction," or unless the other joint judgment debtors are merely sureties.13 Where the obligation created by the judgment is several as well as joint, in an action to set aside a conveyance by one of the judgment debtors as in fraud of the judgment creditor, it is not necessary that the creditor should have previously exhausted his legal remedies against the other debtor." The rule is the same where the statute has abolished all distinction between joint and several liabilities and authorizes action to be brought against any one of several joint obligors. 15 But where one of two debtors executing a joint obligation to plaintiff was solvent at that time, but afterwards became insolvent, plaintiff could come into equity to set aside a fraudulent conveyance made by the other, the rule that equity will not extend relief to set aside a conveyance of one joint debtor so long as a remedy exists against the other debtor not applying.16

8 58. Reimbursement of grantee or other creditors.—A person seeking to have an alleged fraudulent conveyance set aside should come into equity with clean hands." A creditor cannot recover possession of goods, transferred by his debtor with intent to defraud his creditors, from a purchaser in good faith, without refunding to the purchaser such part of the price as has been paid.18 Where a debtor has deeded certain property to secure the claims of some of his creditors, other creditors, whose claims are unsecured, cannot insist upon a court of equity annulling the

12. Alford v. Baker, 53 Ind. 279. See also 40, supra.

13. Baker v. Potts, 73 App. Div. (N. Y.) 29, 76 N. Y. Supp. 406; Euclid Ave. Nat. Bank v. Judkins, 66 Ark. 486; Harvey v. State, 123 Ind. 260, 24 N. E. 239; Duffy v. State, 115 Ind. 351, 17 N. E. 615.

14. Tuthill v. Goss, 89 Hun (N. Y.), 609, 35 N. Y. Supp. 136; Clarkson v. Dunning, 51 Hun (N. Y.), 644, 4 N. Y. Supp. 430.

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deed without offering to pay the secured claims.19 Where a creditor has received the benefits of an alleged fraudulent conveyance as, for instance, the notes of the vendee given in payment therefor, he cannot avoid it without returning or offering to return such benefits.20 But a creditor holding a pledge or collateral for the payment of his claim is not bound to surrender it be fore attacking a conveyance by the debtor as fraudulent." While equity will place the honest purchaser in statu quo by restoring to him whatever he has paid upon his purchase or otherwise reinstating him in the possession he occupied before the purchase, if the grantee has participated in the fraudulent intent of the grantor, any consideration which may have been parted with by the grantee need not be repaid or tendered." Equity may require the payment or tender of the amount of a debt to secure which the alleged fraudulent conveyance was given," or a consent to a resale of land purchased at sheriff's sale at a merely nominal price, as a condition of granting relief by the setting aside of the conveyance. It is not necessary for a creditor to redeem from a mortgage given by the alleged fraudulent grantee, since he has no right to redeem.26

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§ 59. Joinder of causes of action.—In a suit by a judgment creditor to obtain the debtor's property from persons to whom it was fraudulently transferred in distinct parcels, the cause of action, being the fraudulent disposition of the property to defendants, is the same, affecting all defendants, within the statute

or good faith of grantee, chap. XIV, § 40, supra.

19. Anderson v. McNeal, 82 Miss. 542, 34 So. 1. But see Hall v. Harrington, 7 Colo. App. 474, 44 Pac. 365.

20. Bowden v. Spellman, 59 Ark. 251, 27 S. W. 602. See Estoppel, chap. V, § 17, supra.

21. Alabama Warehouse Co. V. Jones, 62 Ala. 550.

22. Crockett v. Phinney, 33 Minn. 157, 22 N. W. 292.

23. Miles v. Lewis, 115 Pa. St. 580, 10 Atl. 123. See Reimbursement, etc., in case of actual fraud, chap. XIV, § 41, supra.

24. Wise v. Jefferis, 51 Fed. 641, 2 C. C. A. 432, 7 U. S. App. 275. 25. White v. Cates, 37 Ky. 357. 26. Ware v. Hamilton Brown Shoe Co., 92 Ala. 145, 9 So. 136.

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which provides that the causes of action to be united must affect all the parties to the action.27 Where several fraudulent conveyances have been made as parts of the same transaction, they may be attacked in one proceeding, though the defendants claim different interests.28 It is not a misjoinder of causes of action to seek in one action to set aside as fraudulent conveyances made by the same grantor on the same day to different grantees.29 A creditor may, in one suit, sue to set aside fraudulent conveyances by the debtor made at different times and independently to separate persons. If defendants have combined and acted in concert in the fraudulent transaction and all have a common interest centering in the point in issue in the cause, they may be joined in one bill.31 A creditor may obtain relief in one suit against several fraudulent judgments against his debtor obtained in several different courts. The creditor may join, as party defendant with the debtor, several persons to whom he has conveyed different parcels of property, out of which the creditor seeks satisfaction of his debt, although such persons may have no common interest in the several parcels so conveyed," and although no joint fraud in any one transaction may be charged against all the transferrees.34 A conveyance made by the debtor with intent to defraud creditors and a purchase by the debtor of property in the name of a third person with the like intent, both transactions being of the same nature al

27. Morton v. Weil, 11 Abb. Prac. (N. Y.) 421; Jacot v. Boyle, 18 How. Prac. (N. Y.) 106; Marx v. Tailer, 12 N. Y. Civ. Proc. R. 226; Snodgrass v. Andrews, 30 Miss. 472, 64 Am. Dec. 169.

28. Oakley v. Tugwell, 33 Hun (N. Y.), 357.

29. Anderson v. Anderson, 4 Ky. L. Rep. 579. Compare Tucker v. Tucker, 29 Mo. 350.

30. Reed v. Stryker, 12 Abb. Prac. (N. Y.) 77, rev'g 6 Abb. Prac. 109, 4 Abb. Dec. 26, though there be no

privity between the several transferees in such a case, there is a privity between each of them and the debtor, which makes it proper to join them as defendants in an action to reach the property of that debtor; Hughes v. Tennison, 3 Tenn. Ch. 641.

31. Winslow v. Dousman, 18 Wis.

456.

32. Uhlfelder v. Levy, 9 Cal. 607. 33. Chase v. Searles, 45 N. H. 511. 34. Brian v. Thomas, 63 Md. 476; Trego v. Skinner, 42 Md. 426.

though different in form, may be attacked in the same action.35 In jurisdictions where code provisions require that the causes of action, in order to be united must affect all parties to the action, a cause of action to set aside a fraudulent conveyance to one defendant cannot be united with a cause of action for the foreclosure of a valid chattel mortgage held by another defendant."

§ 60. Jurisdiction of the person and cause of action.—As a general rule the courts of one state have no jurisdiction to set aside a conveyance of lands or assets of a judgment debtor situate in another state, on the ground that the debtor has fraudulently conveyed them away," but equity has jurisdiction of an action, on personal service on the debtor and his grantee, to restrain the alienation of lands situated in another state, which have been fraudulently mortgaged, pending an action in such other state, and to compel the satisfaction of the mortgage.38 An action to set aside a pledge of mortgage notes may be brought in the state where the pledgor and pledgee are found, although the notes are kept in another state where the pledgee resides." The jurisdiction of equity of a suit to subject property fraudulently conveyed by a debtor to the claims of creditors does not depend upon the amount of the creditors' claims.40 A judicial sale of personal property in one state may be set aside for fraud, in an action brought in another state, if the property has been removed into the latter state."1 The jurisdiction of particular

35. North v. Bradway, 9 Minn.

183.

36. Higgins v. Crichton, 63 How. Prac. (N. Y.) 354.

37. Cumberland Coal, etc., Co. v. Hoffman Steam Coal Co., 30 Barb. (N. Y.) 159, 20 How. Pr. 62; Nicholson v. Leavitt, 4 Sandf. (N. Y.) 252; Carpenter v. Stange, 141 U. S. 87, 11 Sup. Ct. 960, 35 L. Ed. 640; West Point Min., etc., Co. v. Allen (Ala. 1905), 39 So. 351; Grandin v. First Nat. Bank (Neb. 1904), 98 N. W. 70. See, as to rule in Canada, Burns v.

Davidson, 21 Ont. 547; Clarkson v. Dupre, 16 Ont. Pr. 521; Livingstone v. Sibbald, 15 Ont. Pr. 315.

38. Kirdahi v. Basha, 36 Misc. Rep. (N. Y.) 715, 74 N. Y. Supp. 383. 39. Meyer v. Moss, 110 La. 132, 34 So. 332.

40. Lore v. Getsinger, 7 N. J. Eq. 191, rev'd 7 N. J. Eq. 639; Mebane v. Layton, 86 N. C. 571. But see Bailey v. Burton, 8 Wend. (N. Y.) 339, under a statute since repealed.

41. White v. Trotter, 22 Miss. 30, 53 Am. Dec. 112.

courts in a state is governed by the provisions of the statutes of the state." The probate court, as a general rule, has no jurisdiction." Jurisdiction to set aside a fraudulent conveyance made by a non-resident debtor may be obtained in an attachment suit by service of process by publication, and without obtaining jurisdiction of the person, and though no personal judgment can be rendered against the defendant."

8 61. Venue. An action to procure a decree adjudging a conveyance of land fraudulent and setting it aside is an action for the determination of interest in land, and, as a general rule, must be brought in the county where the land, or some part thereof, is situated. But not necessarily, where the object

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42. N. Y.-People v. New York Common Pleas, 28 How. Pr. 477, 18 Abb. Pr. 438, the common pleas, now "city court of New York," has jurisdiction.

Ga.-Manheim v. Claflin, 81 Ga. 129, 7 S. E. 284, creditor restricted to the superior court.

Ill-First Nat. Bank v. North Wisconsin Lumber Co., 41 Ill. App. 383, county court has jurisdiction except in case of assignment for the benefit of creditors.

Ind.-Tyler v. Wilkerson, 20 Ind. 473, both circuit court and common pleas.

N. H.-Stone v. Anderson, 26 N. H. 506, superior court.

Ohio.-Benedict v. Market Nat. Bank, 6 Ohio S. & C. Pl. Dec. 320, 4 Ohio N. P. 231, common pleas has jurisdiction where there has been no assignment.

Tex.-Heard v. McKinney, 1 Tex. Unrep. Cas. 83, district court exclusive jurisdiction.

Can. Merchants Bank v. Brooker, 9 Ont. Pr. 133, superior court.

43. Ill.-Harting v. Jockers, 31 Ill. App. 67.

Kan.-Barker v. Battey, 62 Kan. 584, 64 Pac. 75.

Mass.-See Holland v. Cruft, 37 Mass. 321.

Miss.-Snodgrass v. Andrews, 30 Miss. 472, 64 Am. Dec. 169.

N. C.-Greer v. Cagle, 84 N. C. 385, superior court has exclusive jurisdiction.

Ohio.-Spoors v. Cowen, 44 Ohio St. 497, 9 N. E. 132.

44. First Nat. Bank v. Eastman, 144 Cal. 487, 77 Pac. 1043, 103 Am. St. Rep. 95; Quarl v. Abbott, 102 Ind. 233, 1 N. E. 476; Moody v. Gay, 81 Mass. 457.

45. N. Y.-Wood v. Hollister, 3 Abb. Pr. 14; Starks v. Bates, 12 How. Pr. 465; Mairs v. Remsen, 3 Code Rep. 138.

Ill.-Richards v. Hyde, 21 Ill.

640.

Ky.-Marcum v. Powers, 10 Ky. L. Rep. 380, 90 S. W. 255, although the judgment was recovered and the debtor lives in another county.

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