§ 64. Grantor or debtor as defendant.-In many jurisdictions the grantor or debtor is a necessary party defendant to an action to set aside a conveyance alleged to have been made by him in fraud of creditors, or to a bill filed by his creditors to reach land alleged to have been fraudulently conveyed." In other jurisdictions it is held that the debtor is a necessary party where the property has been transferred merely as security for 71. N. Y.-Miller v. Hall, 70 N. Y. 250, aff'g 40 N. Y. Super. Ct. 262; Beardsley Scythe Co. v. Foster, 36 N. Y. 561; Lawrence v. Bank of Republic, 35 N. Y. 320; Hubbell v. Merchants' Nat. Bank, 42 Hun, 200; Allison v. Weller, 3 Hun, 608, 6 Thomp. & C. 291; Shaver v. Brainard, 29 Barb. 25; Hammond v. Hudson River Iron, etc., Co., 20 Barb. 378; Palen v. Bushnell, 18 Abb. Pr. 301; Wallace v. Eaton, 5 How. Pr. 99; Fellows v. Fellows, 4 Cow. 682, 15 Am. Dec. 412; Boyd v. Hoyt, 5 Paige, 65; Sewall v. Russell, 2 Paige, 175. U. S.-Gaylord v. Kelshaw, 68 U. S. 81, 17 L. Ed. 612. Ala.-Powe v. McLeod, 76 Ala. 418; Harris v. Moore, 72 Ala. 507. Ga. Stephens v. Whitehead, 75 Ga. 294. Ky.-Bevins v. Eisman, 21 Ky. L. Rep. 1772, 56 S. W. 410. But see Matthews v. Lloyd, 89 Ky. 625, 11 Ky. L. Rep. 843, 13 S. W. 106, the debtor is not a necessary party where he is insolvent. La.-Black v. Bordelon, 38 La. Ann. 696; Zimmerman v. Fitch, 28 La. Ann. 454; Lawrence v. Bowman, 6 Rob. 21. To annul a contract for fraud or simulation, the original debtor must be a party to the suit only where the debt has not been previously liquidated by a judgment. Russell v. Keefe, 28 La. Ann. 928; Dumas v. Lefebvre, 10 Rob. 399. Me.-Laughton v. Harden, 68 Me. 208, where a creditor, having levied an execution on land which his debtor had previously conveyed to defraud his creditors, filed a bill against the grantee to compel him to release his title, claiming also certain rights as an attaching creditor to a part of the land so conveyed, but not included in the levy, as to the land levied on, the grantor was not a necessary party to the bill, but as to that part of the bill praying relief as to land not levied on, he was an indispensable party. Md.-Lovejoy v. Irelan, 17 Md. 525, 77 Am. Dec. 667. N. J.-Robinson v. Davis, 11 N. J. Eq. 302, 69 Am. Dec. 591; Hunt v. Field, 9 N. J. Eq. 36, 57 Am. Dec. 365. N. C.-Murphy v. Jackson, 58 N. C. 11. Tenn.-Tyler v. Hamblin, 58 Tenn. 152; Harrison v. Hallum, 45 Tenn. 525. Tex.-Birdwell v. Butler, 13 Tex. 338. Can.-Gibbons v. Darvill, 12 Ont. Pr. 478; Beattie v. Wenger, 24 Ont. App. 72. But see Scott v. Burnham, 19 Grant. Ch. (U. C.) 234, grantor residing in the United States not a necessary party. a debt, but, where he has parted with it absolutely, he has no rights to be affected, and is not a necessary party to an action to set the conveyance aside, which is regarded as in the nature of a proceeding in rem, although he is always a proper party." In Illinois the rule is maintained that the judgment debtor is a necessary party where the conveyance contains covenants of warranty." In an action to set aside a deed fraudulent as to creditors, a person to whom the alleged fraudulent transaction was made, and who merely conveyed the land by a quit claim deed, is not a necessary party defendant."4 Where the debtor becomes bankrupt, he is not a necessary party to a bill filed by the assignee in bankruptcy.75 73 § 65. Representatives of grantor or debtor.-As in the case of the judgment debtor, in many jurisdictions, where a bill is filed by creditors to avoid as fraudulent the conveyance of a de 72. Cal.-Blanc v. Paymaster Min. Co., 95 Cal. 524, 30 Pac. 765, 29 Am. St. Rep. 149. Colo.-Homestead Min. Co. V. Reynolds, 30 Colo. 330, 70 Pac. 422; Mulock v. Wilson, 19 Colo. 296, 35 Pac. 532. Contra.-McPhee V. O'Rourke, 10 Colo. 301, 15 Pac. 420, 13 Am. St. Rep. 579; Allen v. Tritch, 5 Colo. 222. Iowa.-Dunn v. Wolf, 81 Iowa, 688, 47 N. W. 887; Taylor v. Branscombe, 74 Iowa, 534, 38 N. W. 400; Potter v. Phillips, 44 Iowa, 353. But see Cedar Rapids Nat. Bank V. Lavery, 110 Iowa, 575, 81 N. W. 775, 80 Am. St. Rep. 325. Kan.-Metzger v. Burnett, 5 Kan. App. 374, 48 Pac. 599. Minn.-Leonard v. Green, 34 Minn. 137, 24 N. W. 915, 30 Minn. 496, 16 N. W. 399; Campbell v. Jones, 25 Minn. 155. Miss.-Leach v. Selby, 58 Miss. 681; Taylor v. Webb, 54 Miss. 36. Mo.-Schneider v. Patton, 175 Mo. 684, 75 S. W. Ì55; Jackman v. Robinson, 64 Mo. 289; Merry v. Fremon, 44 Mo. 518; Wright v. Cornelius, 10 Mo. 174, the debtor is not a proper party. Neb.-Glover v. Hargardine-McKittrick Dry Goods Co., 62 Neb. 483, 87 N. W. 170. But see First Nat. Bank v. Gibson (Neb. 1903), 94 N. W. 965. 73. Quinn v. People, 146 III. 275, 34 N. E. 148; Johnson v. Huber, 134 Ill. 511, 25 N. E. 790; Spear v. Campbell, 5 Ill. 424. 74. Hoffman v. Ackermann, 110 La. 1070, 35 So. 293; Hunt v. Dean, 91 Minn. 96, 97 N. W. 574. 75. Buffington v. Harvey, 95 U. S. 99, 24 L. Ed. 381; Benton v. Allen, 2 Fed. 448; Weise v. Wardle, L. R. 19 Eq. 171, 23 Wkly. Rep. 280. Contra. -Verselius v. Verselius, 28 Fed. Cas. No. 16,925, 9 Blatchf. 189; Johnson v. May, 16 Nat. Bankr. Reg. 425. 76 77 ceased debtor or grantor, his executor or administrator is held to be a necessary party, while in other jurisdictions it is held that he is a proper but not a necessary party to the action, and that it is only when the estate in the hands of the personal representative may be affected by the decree that he is a necessary party." In many jurisdictions it is held that the assignee in bankruptcy, or the trustee or receiver of an insolvent debtor, is a necessary party to a bill filed by the creditors to set aside a fraudulent conveyance made by the bankrupt or insolvent prior to the bankruptcy or insolvency proceedings. In some jurisdictions it is 76. Cal.—Bachman v. Sepulveda, 39 Cal. 688. Ill.-Johnson v. Huber, 134 Ill. 511, 25 N. E. 790, rev'g 34 Ill. App. 527, where the conveyance was made by a warranty deed; McDowell v. Cochran, 11 Ill. 31. Ind.-Hays v. Montgomery, 118 Ind. 91, 20 N. E. 646; Vestal v. Allen, 94 Ind. 268; Willis v. Thompson, 93 Ind. 62; Allen v. Vestal, 60 Ind. 245. Iowa.-Postlewait Iowa, 365. V. Howes, 3 Md.-Birely v. Staley, 5 Gill & J. 432, 25 Am. Dec. 303. 8. C.-Brockman v. Bowman, 1 Hill Eq. 338; Brock v. Bowman, Rich. Eq. Cas. 185. Vt.-Peaslee V. Barney, 1 D. Chipm. 331, 6 Am. Dec. 743. Va.-Chamberlayne v. Temple, 2 Rand. 384, 14 Am. Dec. 786. W. Va.-Boggs v. McCoy, 15 W. Va. 344. 77. N. Y.-First Nat. Bank V. Wright, 38 App. Div. 2, 56 N. Y. Supp. 308; Jackson v. Forrest, 2 Barb. Ch. 576. Ala.-Tompkins v. Levy, 87 Ala. 263, 6 So. 346, 13 Am. St. Rep. 31; Coffey v. Norwood, 81 Ala. 512, 8 So. 78 199; Houston v. Blackman, 66 Ala. 559, 41 Am. Rep. 756. Compare Powe v. McLeod, 76 Ala. 418; Pharis v. Leachman, 20 Ala. 662. Me.-Dockray v. Mason, 48 Me. 178. Miss.-Taylor v. Webb, 54 Miss. 36. Mo.-Jackman v. Robinson, 64 Mo. 289; Merry v. Fremon, 44 Mo. 518. But see Coates v. Day, 9 Mo. 304. Tenn. McCutcheon v. Pigue, 51 Tenn. 565. Tex.-Heard v. McKinney, 1 Tex. Unrep. Cas. 83, the creditor and vendee are the only necessary parties. Wis.-Cornell v. Radway, 22 Wis. 260. 78. N. Y.-Ward v. Van Bokkelen, 2 Paige, 289. Ala.-Davis v. W. F. Vandiver & Co. (1905), 38 So. 850; Harris v. Moore, 72 Ala. 507. Cal.-Pfister v. Dascey, 65 Cal. 403, 4 Pac. 393. Md.-Jamison v. Chestnut, 8 Md. 34; Waters v. Dashiell, 1 Md. 455; Swan v. Dent, 2 Md. Ch. 111. But see Farrow v. Teackle, 4 Har. & J. 271. N. J.-Rankin v. Gardner (Ch. 1896), 34 Atl. 935. held that the heirs of the debtor or grantor are not necessary parties to an action to set aside a fraudulent conveyance made by the debtor, on the ground that they have no interest in the property. 79 § 66. Co-grantors or co-obligors.—Where a judgment debtor who is a part owner of a tract of land joins with the other owners thereof in a conveyance thereof which, though absolute on its face, is intended only as a mortgage, the other grantors are not necessary or proper defendants to a bill in equity filed by a creditor to set aside the conveyance on the ground of fraud, sinco the creditor has no rights in or to the interest conveyed by them.80 In a suit to set aside as fraudulent a deed executed by one of two joint judgment debtors, the other judgment debtor is not a necessary party. Where a husband and wife jointly executed a fraudulent conveyance and a fraudulent mortgage of all the property owned by the husband, the wife is not a necessary party in an action to set them aside.8 81 82 867. Grantee as defendant.-The grantee or transferee, where he still retains the title to the property, is a necessary party to an action by the grantor's creditors to set aside a conveyance or transfer as fraudulent.83 Va.-Tabb v. Hughes (1887), 3 S. E. 148. Contra.-Oliphant v. Hartley, 32 Ark. 465; Mechanics' Nat. Bank v. Landauer, 68 Wis. 44, 31 N. W. 160. 79. Freeman v. Pullen, 119 Ala. 235, 24 So. 57; Simmons v. Ingram, 60 Miss. 886; Taylor v. Webb, 54 Miss. 36; Wall v. Fairley, 73 N. C. 464; Irwin v. Hess, 12 Pa. Super. Ct. 163. Compare Hunt v. Van Derveer, 43 N. J. Eq. 414, 6 Atl. 20; Walker v. Powers, 104 U. S. 245, 26 L. Ed. 729. 80. Campbell v. Davis, 85 Ala. 56, But where property has 4 So. 140, but their misjoinder is a defense personal to them, and not available as ground of demurrer to the grantee. 81. Freeman v. Pullen, 119 Ala. 235, 24 So. 57; Quinn v. People, 146 Ill. 275, 34 N. E. 148, aff'g 45 Ill. App. 547; Johnson v. Worthington, 30 Ill. App. 617. Contra.-Pyper v. Cameron, 13 Grant Ch. (U. C.) 131. 82. Tatum v. Roberts, 59 Minn. 52, 60 N. W. 848. See also Jones v. Slubey, 5 Har. & J. (Md.) 372. 83. N. Y.-Gray v. Schenck, 4 N. Y. 460; Sage v. Mosher, 28 Barb. 287; 84 been fraudulently assigned by a debtor, but he still retains the legal or equitable interest in the property, on a bill by creditors to obtain satisfaction out of the property assigned the assignee need not be made a party. In an action to set aside a deed of land granted in trust for the grantee and others, or where there are several grantees or other parties claiming an interest under the conveyance, all are proper and necessary parties defendant to the action. In an action by a creditor to subject property fraudulently conveyed to the payment of his claim, different grantees, holding under separate and distinct fraudulent conveyances from the debtor, may be joined in one action as defendants.86 Miller v. Hall, 40 N. Y. Super. Ct. 262. Ky.-Ouerbacker v. White, 6 Ky. L. Rep. 739. La.-Tounstine v. Ware, 39 La. Ann. 939, 3 So. 122; Seixas v. King, 39 La. Ann. 510, 2 So. 416; Yocum v. Bullit, 6 Mart. N. S. 324, 17 Am. Dec. 184. Md.-Lovejoy v. Irelan, 17 Md. 525, 79 Am. Dec. 667. Miss.-Stanton v. Green, 34 Miss. 576. N. J.-Terhune v. Sibbald, 55 N. J. Eq. 236, 37 Atl. 454; Randolph v. Daly, 16 N. J. Eq. 313. S. C.-Frazer v. Legare, Bailey Eq. 389. Tex.-Waddell v. Williams, 37 Tex. 351; O'Neal v. Clymer (Civ. App. 1900), 61 S. W. 545; Archenhold v. B. C. Evans Co., 11 Tex. Civ. App. 138, 32 S. W. 795. 84. Edmeston v. Lyde, 1 Paige (N. Y.), 637, 19 Am. Dec. 454. 85. Ala.-Smith-Dimmick Lumber Co. v. Teague, 119 Ala. 385, 24 So. 4. Ill.-Gudgel v. Kitterman, 108 Ill. 50. Ky.-Whayne v. Morgan, 11 Ky. L. Rep. 254, 12 S. W. 128. Mo.-Jackman v. Robinson, 64 Mo. 289. N. C.-Le Duc v. Brandt, 110 N. C. 289, 14 S. E. 778; Dawson Bank v. Harris, 84 N. C. 206. Wis.-Adkins v. Loucks, 107 Wis. 587, 83 N. W. 934; Winslow v. Dousman, 18 Wis. 456. Can.-Pyper v. Cameron, 13 Grant Ch. (U. C.) 131, a demurrer for multifariousness allowed where the conveyances were executed at different times to separate grantees. 86. N. Y.-Reed v. Stryker, 4 Abb. Dec. 26, 12 Abb. Pr. 47, rev'g 6 Abb. Pr. 109; Hammond v. Hudson River Iron, etc., Co., 20 Barb. 378; Morton v. Weil, 11 Abb. Pr. 421; Jacot v. Boyle, 18 How. Pr. 106; Bank of British North America v. Suydam, 6 How. Pr. 379; Boyd v. Hoyt, 5 Paige, 65; Fellows v. Fellows, 4 Cow. 682, 15 Am. Dec. 412. Ala.-Allen v. Montgomery R. Co., 11 Ala. 437. Fla.-Bauknight v. Sloan, etc., Co., 17 Fla. 284. |