debtor which has been fraudulently transferred he must allege that the plaintiff has acquired a lien on the property. If the lien arises from the execution he must allege that one has been issued, and if it arises from the levy of the writ he must allege that a levy has been made under the writ. The general creditors of a mortgagor of chattels have no right to assail a mortgage or other conveyance of property made by him, as invalid, until they have secured a lien thereon by levy under a judgment and execution, or have by some other method acquired a legal or equitable interest in the property.10 If the creditor seeks in a court of equity to reach and subject the equitable assets or choses in action not subject to be taken on execution for the payment of his claim, the rule is well settled that he must first obtain a judgment at law, take out a writ of execution and have the same returned unsatisfied in whole or in part, and these facts must be alleged in the complaint." A cestui que trust is not required to establish his claim by an action at law in order to compel an V. Schissle Mo.-Turner v. Adams, 46 Mo. 95; Merry v. Fremon, 44 Mo. 518. Mont.-Ryan v. Spieth, 18 Mont. 45, 44 Pac. 403. N. J.-Robert v. Hodges, 16 N. J. Eq. 299; Dunham v. Cox, 10 N. J. Eq. 437, 64 Am. Dec. 460. Ohio.-Bomberger v. Turner, 13 Ohio St. 263, 82 Am. Dec. 438. Or.-Fleischner v. First Nat. Bank, 36 Or. 553, 54 Pac. 884, 60 Pac. 603, 61 Pac. 345. R. I.-McKenna v. Crowley, 16 R. I. 364, 17 Atl. 354. 8. C.-Miller v. Hughes, 33 8. C. 530, 12 S. E. 419; State v. Foot, 27 S. C. 340, 3 S. E. 546; Burch v. Brantley, 20 S. C. 503. Wis.-Level Land Co. No. 3 v. Sivyer, 112 Wis. 442, 88 N. W. 317; Cornell v. Radway, 22 Wis. 360. 9. Cal. Castle v. Bader, 23 Cal. 75. Ill.-French V. Commercial Nat. Bank, 199 Ill. 213, 65 N. E. 252. Minn.-Wadsworth bauer, 32 Minn. 84, 19 N. W. 390. Miss.-Fleming v. Grafton, 54 Miss. 79. N. J.-Robert v. Hodges, 16 N. J. Eq. 299; Dunham v. Cox, 10 N. J. Eq. 437, 64 Am. Dec. 460. Va.-Chamberlayne v. Temple, 2 Rand. 384, 14 Am. Dec. 786. 10. Sullivan v. Miller, 106 N. Y. 635, 13 N. E. 772; Southard v. Benner, 72 N. Y. 424; Geery v. Geery, 63 N. Y. 252. See also McKinlay v. Bowe, 97 N. Y. 93. 11. N. Y.-McElwain v. Willis, 9 Wend. 548; Clarkson v. DePeyster, 3 Paige, 320. U.S.-Van Weel v. Winston, 115 U. S. 228, 6 Sup. Ct. 22, 29 L. Ed. 384. Colo.-Burdsall V. Waggoner, 4 Colo. 256. 98. Ill-Newman v. Willetts, 52 m. Me.-Baxter v. Moses, 77 Me. 465; enforcement of the trust or to protect the trust property from unlawful interference.12 Whenever a creditor has a trust in his favor or a lien on property for the debt due him, he may go into a court of equity without first exhausting his remedy at law.13 It has been held that he may maintain his suit without even alleging the insolvency of the debtor, if he stands in the relation of a cestui que trust or is able to allege a specific lien on the property sought to be subjected to his demand." 2. Statutory provisions.-The statute in some states creates a new equitable right by providing that a creditor without a lien may file his bill in equity to subject to the payment of his debt property which has been fraudulently conveyed, or may maintain a suit to set aside a fraudulent conveyance without the previous recovery of a judgment at law and may recover his judgment in the same action in which he seeks equitable relief.15 It is not necessary for a creditor without a lien to allege that there has been an issue and return of execution on the judgment sought to be enforced, but he must aver that he has prosecuted his claim to judgment at law," or, if there be no judgment, that 16 Griffin v. Nitcher, 57 Me. 270; Hatshorn v. Eames, 31 Me. 93. Minn.-Wadworth v. Schisselbauer, supra. Miss.-Vasser v. Henderson, 40 Miss. 519, 90 Am. Dec. 351; Brown v. State Bank, 31 Miss. 454; Farned v. Harris, 11 Sm. & M. 366. N. H.-Tappan v. Evans, 11 N. H. 311. N. J.-Stockton v. Lippincott, 37 N. J. Eq. 443; Bigelow Blue Stone Co. v. Magee, 27 N. J. Eq. 392. R. I.-McKenna v. Crowley, 16 R. L. 364, 17 Atl. 354. 12. Spelman v. Freedman, 130 N. Y. 421, 29 N. E. 765. 13. Case v. Beauregard, 101 U. S. 688, 25 L. Ed. 1004; Bank of Cali fornia v. Cowan, 61 Fed. 871; Holt 15. Steiner Land, etc., Co. v. King, 118 Ala. 546, 24 So. 35; Huntington v. Jones, 72 Conn. 45, 43 Atl. 564; Vail v. Hammond, 60 Conn. 374, 22 Atl. 954, 25 Am. St. Rep. 330; Sanderson v. Stockdale, 11 Md. 563; Grunsfeld v. Brownell (N. M. 1904), 76 Pac. 310; Early Times Distilling Co. v. Zeiger, 9 N. M. 31, 49 Pac. 723. 16. Jones v. Smith, 92 Ala. 455, 9 So. 179. 17. Ferguson v. Pobo, 54 Miss. 121. 18 the claim is due and demandable at the time of the filing of the complaint. But simple contract creditors whose claims have not been reduced to judgment, and who have no express lien by mortgage, trust deed, or otherwise, cannot come into a federal court of equity to obtain a seizure of the property of their debtor, and its application to the satisfaction of their claims, notwithstanding a statute of the state may authorize such a proceeding in the courts of the state. Remedies in federal courts, at law and in equity, are not according to the practice of the state courts, but according to the principles of common law and equity.19 § 3. Right to sue in general; existence of creditor's claim.— In an action to set aside a fraudulent conveyance, the complaint must state facts showing that the plaintiff is either a creditor or the representative of creditors, in order to entitle him to assail the conveyance.20 It should state facts showing the character and validity of the debt,21 but it need not state the 18. Gibson v. Trowbridge Furniture Co., 93 Ala. 579, 9 So. 370; Jones v. Massey, 79 Ala. 370; Ferguson v. Bobo, supra. 19. Hollins v. Brierfield Coal, etc., Co., 150 U. S. 371, 14 Sup. Ct. 127, 37 L. Ed. 1113, 7 Nat. Corp. Rep. 370; Cates v. Allen, 149 U. S. 451, 13 Sup. Ct. 883, 977, 37 L. Ed. 804; Scott v. Neely, 140 U. S. 106, 11 Sup. Ct. 712, 35 L. Ed. 358; Smith v. Ft. Scott, etc., R. Co., 99 U. S. 398, 25 L. Ed. 437; Hudson v. Wood, 119 Fed. 764; Peacock v. Williams, 110 Fed. 917; Harrison v. Farmers' L. & T. Co., 94 Fed. 728, 36 C. C. A. 443; Hall v. Gambrill, 92 Fed. 32, 34 C. C. A. 190; First Nat. Bank v. Prager, 91 Fed. 689, 34 C. C. A. 51; D. A. Tompkins Co. v. Catawba Mills, 82 Fed. 780; Childs v. N. B. Carlstein Co., 76 Fed. 86; England v. Russell, 71 Fed. 818; Putney v. Whitmire, 66 Fed. 385; Morrow Shoe Mfg. Co. v. New England Shoe Co., 57 Fed. 685, 6 C. C. A. 508, 24 L. R. A. 417; United States 20. Ala.-Lehman v. Van Winkle, Cal. First Nat. Bank v. Eastman, Colo.-National Bank of Commerce 539. Ind.-Robinson v. Rogers, 84 Ind. Ky.-Alexander v. Quigley, 63 Ky. 399. Md.-Mahaney v. Lazier, 16 Md. 69. 21. Gibson v. Trowbridge Furni 25 consideration of the debt.22 An allegation that goods were sold and delivered of the value of a certain amount by plaintiff, which has not been paid, is a sufficient averment of indebtedness.23 But a mere allegation by a general creditor that he holds a valid claim will not authorize him to go into a court of equity.24 If the plaintiff sues as the assignee of a judgment he must allege that the whole judgment has been assigned, and that he is the owner of it,26 but he need not state the consideration for the assignment," or allege whether the judgment was recovered before or after the conveyance.28 Where suit is brought by partnership creditors, it need not be alleged that there are no individual creditors, as that is a matter of defense.29 In an action by a judgment creditor to set aside a conveyance on the ground of fraud, the complaint need not allege the debt for which the judgment was rendered with the same definiteness required in a complaint to recover the debt,30 but plaintiff must state facts showing the character and validity of the judgment.31 In pleading the judgment it is enough to allege that it was duly recovered in an action then pending without pleading the jurisdictional facts.32 4. Time when claim accrued.-A bill of complaint to have a conveyance set aside as fraudulent, which fails to allege either that the plaintiff's claim was for a subsisting indebtedness and ture Co., 93 Ala. 579, 9 So. 370; Eller v. Lacy, 137 Ind. 436, 36 N. E. 1088. 22. Curry v. Glass, 25 N. J. Eq. 108. 23. Smith v. Summerfield, 108 N. C. 284, 12 S. E. 997. 24. Cox v. Fraley, 26 Ark. 20. 25. Strange v. Longley, 3 Barb. Ch. (N. Y.) 650. 26. Richardson v. Gilbert, 21 Fla. 544; Postlewait v. Howes, 3 Iowa, 365. 27. Gleason v. Gage, 7 Paige (N. Y.) 121. 28. Newman v. Van Duyne, 42 N. J. Eq. 485, 7 Atl. 897. 29. Smith v. Selz, 114 Ind. 229, 16 N. E. 524. 30. Scanlan v. Murphy, 51 Minn. 536, 53 N. W. 799. 31. Eller v. Lacy, 137 Ind. 436, 36 N. E. 1088; Alexander v. Quigley, 63 Ky. 399. 32. Scanlan v. Murphy, supra. In Montana it is necessary to allege the docketing of the creditor's judgment. Wyman v. Jensen, 26 Mont. 227, 67 Pac. 114. that complainant was a creditor at the time of the conveyance, or that the conveyance was made with intent to defraud subsequent creditors," is fatally defective and will be properly dismissed. Such a complaint does not show that plaintiff was in a position to be injured by the conveyance.35 It need not, however, be alleged that the plaintiff has suffered damage, excepting such as results from the fraud.36 The allegations must show that a debt or legal duty was due from the grantor to the plaintiff, the payment or discharge of which is in some way injuriously affected by such conveyance; otherwise the complaint is demurrable. Where a bill alleges that complainant is assignee of demands which existed against the debtor at the time of the fraudulent transfer, it is not demurrable in failing to allege that he was owner thereof at the time.38 § 5. Ownership and description of property conveyed.-An 33. N. Y.-Holmes v. Clark, 48 Barb. 237. U. S.-Sexton V. Wheaton, 8 Wheat. 229, 5 L. Ed. 603. Ala.-Wooten v. Steele, 109 Ala. 563, 19 So. 972, 55 Am. St. Rep. 947; Donley v. McKiernan, 62 Ala. 34. Cal. Gray v. Brunold, 140 Cal. 615, 74 Pac. 303. Colo.-Emery v. Yount, 7 Colo. 107, 1 Pac. 686. Ill.-Merrill v. Johnson, 96 Ill. 224; Wilson v. Derrwaldt, 100 Ill. App. 396; Wagner v. Koch, 45 Ill. App. 501; Uhre v. Melum, 17 Ill. App. 182. Ind.-McCormick v. Hartley, 107 Ind. 248, 6 N. E. 357; Bruker v. Kelsey, 72 Ind. 51; Bentley v. Dunkle, 57 Ind. 374; Harrison v. Jaquess, 29 Ind. 208. Ind. T.-Parrott V. Crawford (1904), 82 S. W. 688. Ky.-Marcum v. Powers, 10 Ky. L. Rep. 380, 9 S. W. 255. Mass.-Woodbury v. Sparrell Print, 60. Neb.-Chamberlain Banking House v. Turner-Frazier Mercantile Co., 66 Neb. 48, 92 N. W. 172. Pa.-Palmer v. Wyoming Mfg. Co., 1 Lack. Leg. N. 271. Tex.-Kerr v. Hutchins, 36 Tex. 452. Wash.-West Coast Grocery Co. v. 34. Holmes v. Clark, 48 Barb. (N. 35. Fox v. Dyer (Cal. 1889), 22 Pac. 257. 36. Alden v. Gibson, 63 N. H. 12. 37. Ullrich v. Ullrich, 68 Conn. 580, 37 Atl. 393. 38. Aiken v. Edringer, 1 Fed. Cas. No. 111. 4 |