its value may be rendered." The court has jurisdiction to grant full relief upon a bill by creditors by entering personal decrees against defendants for balances due after sale of the property subjected to their claims. But where the only prayer is to have the transfer set aside a money judgment cannot be rendered.69 While it is true that a court of equity will adapt its relief to the exigencies of the case, it is well settled that it will only give a personal judgment for money where that form of relief becomes necessary in order to prevent a failure of justice, and when it is for any reason impracticable to grant the species of relief demanded.70 Where a husband causes real estate to be conveyed to his wife in fraud of creditors, a judgment in personam for its value cannot be taken, at the suit of his assignee in bankruptcy, against her, nor, in case of her death, against her executors, her estate not having received any actual benefit from the conveyance." On a creditor's bill to set aside a fraudulent conveyance, it is improper to render a decree making the grantee responsible in damages to the creditor. Such damages should be sought by a proceeding at law." Where a petition in no way intimated, nor contained any allegation from which it would be inferred, on what account, if at all, a personal judgment against defendant would be asked, such judgment was unauthorized. Where a husband conveys his property to his wife in fraud of creditors, with her knowledge, and it is sold to 73 67. Thompson v. Johnson, 55 Minn. 515, 57 N. W. 223; Solinsky v. Lincoln Sav. Bank, 85 Tenn. 368, 4 S. W. 836, overruling Tubb v. Williams, 26 Tenn. 367. 68. Citizens' Mut. Ins. Co. v. Ligon, 59 Miss. 305; Hinton v. Ellis, 27 W. Va. 422. 69. Carpenter v. Knapp, 1 Tex. App. Civ. Cas., § 1111. 70. Harrison v. Obermeyer, etc., Brewing Co., 64 App. Div. (N. Y.) 499, 72 N. Y. Supp. 270, citing Van Rensselaer v. Van Rensselaer, 113 N. 71. United States Trust Co. v. Sedgwick, 97 U. S. 304, 24 L. Ed. 954: Phipps v. Sedgwick, 95 U. S. 3, 24 L. Ed. 591. 72. Dunphy v. Kleinsmith, 78 U. S. 610, 20 L. Ed. 223. 73. Schneider v. Patton, 175 Mo. 684, 75 S. W. 155. an innocent third party, personal judgment may be entered against the wife for the proceeds of such sale." 74 § 9. Operation and effect.-A decree avoiding a deed as to creditors of the grantor leaves the deed operative inter partes. The legal effect of a judgment declaring a conveyance void as against a judgment creditor is not to restore the title to the debtor, but to make the property subject in the hands of the grantee to the judgment lien and clear the way for the judg ment creditor to sell in satisfaction thereof. A decree adjudg ing a conveyance void as being in fraud of creditors is a decree sub modo, and binding only as to such creditors." A judgment which sets aside a conveyance so far as is necessary to secure the plaintiff's debt does not affect the validity of the conveyance beyond its terms, so far as other creditors who have not asked relief are concerned." Where the purchaser of real estate at sheriff's sale obtains a decree setting aside a deed which had been made to defraud the judgment creditor, such decree does not vest the absolute title in the complainant.78 A decree to set aside a fraudulent sale cannot affect the interests of minor children not parties to the suit." Where a deed conveying land embracing a homestead is set aside as fraudulent at the suit of a creditor, a provision in the decree that the master in selling the land shall proceed in accordance with the homestead law does not cause the homestead estate to revert to the grantor, but simply confirms the grantee's title thereto.80 Where in an action to have a declaration of trust declared void, the court decreed that 74. Sheldon v. Parker (Neb. 1903), 95 N. W. 1015, 92 N. W. 923. 75. Knapp v. Crane, 14 App. Div. (N. Y.) 120, 43 N. Y. Supp. 513 (citing Waterbury v. Westervelt, 9 N. Y. 598; Bank v. Eames, 4 Abb. Dec. [N. Y.] 83); Dawley v. Brown, 11 St. Rep. (N. Y.) 260; McDowell v. McMurria, 107 Ga. 812, 33 S. E. 709, 73 Am. St. Rep. 155; Succession of 82 defendants "be and they hereby are devested of all title to " the land the effect of the decree was to declare the declaration of trust void. Where a purchase is made of the grantee of an alleged fraudulent deed, during the pendency of proceedings properly instituted for the express purpose of testing the validity of such deed, and the deed is adjudged fraudulent, such purchase becomes a nullity against the title established by such proceedings.& Where, however, one of two grantees of a fraudulent grantor has purchased from the other a portion of the land so conveyed for a valuable consideration, and recorded his deed, a decree in a subsequent suit setting aside the conveyance first mentioned will not affect the validity of the last 'deed, though the grantee of the last deed was a party to the action in which the decree was entered. When a conveyance by a debtor is declared to be fraudulent as to creditors, and is adjudged void, and the property decreed to be sold and the proceeds to be brought into court, such decree is conclusive, and cannot be opened and modified, in the subsequent proceedings, to ascertain the amount of the debts of the complainants and to distribute the proceeds of the sale. Where judgment is rendered against the creditor denying his right to subject the property in controversy to the payment of his debt, such judgment, until appealed from or reversed, becomes the law of the case, and estops the creditor from further pursuing the property. 84 83 § 10. Persons entitled to claim benefit.—The judgment or de cree, in an action to set aside a fraudulent conveyance, avails the plaintiff only, and not those who are neither parties nor privies to the proceedings, since no one can take advantage of an adjudica 86 81. Lindell Real Estate Co. v. Lindell, 133 Mo. Sup. 386, 33 S. W. 466. 82. Jackson v. Andrews, 7 Wend. (N. Y.) 152, 22 Am. Dec. 574. 83. Applegate v. Dowell, 15 Or. 513, 16 Pac. 651. 84. Strike's Case, 1 Bland (Md.), 57. 85. Shaffer v. Knox, 7 Kan. App. 182, 53 Pac. 785. 86. Labauve v. Boudreau, 9 Rob.. (La.) 28; McManns v. Jewett, 6 La. 530. See also Enger v. Lofland, 100 Iowa, 303, 69 N. W. 526. Contra, Adams v. Coons, 37 La. Ann. 305. 89 tion who was not in a position to be prejudiced by an adverse determination. The action of the court is only to the extent of supplying a remedy to the suitor creditor. As to all other persons, the conveyance remains as if no proceedings had been taken.88 The fact that the conveyance is void as to one judgment creditor does not render it void as to judgment creditors who did not become parties plaintiff under the decree. It has been held, however, that a conveyance, fraudulent as to one creditor, is void as to all others of the same class, and that a decree adjudicating its fraudulent character inures to the benefit of all other creditors of the same class taking advantage thereof in proper time by proper pleadings," and that a conveyance set aside for fraud as to subsisting creditors is void as to subsequent judgment creditors." On the contrary it is held that the fact that a conveyance is declared void as to prior creditors does not benefit subsequent creditors, and it should be held valid as to them.92 When a fraudulent conveyance is set aside by certain creditors, another creditor may notwithstanding ratify it, and enforce rights given him thereunder.93 § 11. Enforcement of judgment or decree. Where judgment creditors have, by process in equity, had a deed of their debtor set aside as void, their course is either to have a receiver appointed by the court to take conveyance from the debtor and then pass a deed in his own name, or else to proceed to levy execution thereon by virtue of their original judgment, the lien whereof is still in force." The vendee in a fraudulent sale may either pay the creditor who sets the sale aside, or surrender the property. If he does 87. Schultze's Appeal, 1 Pa. St. 258, 44 Am. Dec. 126. 88. McCalmont v. Lawrence, 15 Fed. Cas. No. 8,676, 1 Blatchf. 232. 89. Warden v. Browning, 12 Hun (N. Y.), 497. 90. Sibley v. Stacey, 53 W. Va. 292, 44 S. E. 420. 91. Trimble v. Turner, 21 Miss. 348, 53 Am. Dec. 90. 92. Greer v. O'Brien, 36 W. Va. 277, 15 S. E. 74. 93. German Nat. Bank v. Leonard, 40 Neb. 676, 59 N. W. 107. 94. Walker v. White, 36 Barb. (N. Y.) 592. neither, execution may issue. A conveyance by a debtor having been found to be in fraud of creditors and declared void, and the property ordered to be sold, an account of the rents and profits of the property sold should be taken.96 Upon an application of the surplus money arising under the sale of real estate fraudulently conveyed, judgment creditors who have not become parties under the decree cannot enforce their judgments against the real estate until the debtor's personal estate has been first exhausted." A debtor has no equitable interest in property which he has conveyed in fraud of creditors, entitling either him or his judgment creditor to redeem it from an execution sale made at the suit of other creditors who have had the conveyance set aside in a proceeding in equity.98 A writ of assistance will be granted where defendant refuses to surrender property under a decree setting aside the conveyance to him as fraudulent.99 In Kentucky, by statute, the execution plaintiff may file a petition in equity to set aside a fraudulent conveyance, and as the chancellor has jurisdiction of the parties he may grant complete relief while they are before him, by enforcing the execution.1 In Indiana the statute which provides that property conveyed by a debtor with intent to hinder, delay, or defraud his creditors shall be sold without appraisement applies to property which the debtor fraudulently procured to be conveyed to another, and which ought to have been conveyed to himself, as well as to property held in his own name and by him fraudulently conveyed to another.2 § 12. Sales and conveyances under order of court.-Where a debtor has fraudulently conveyed his property, it is not error for a court of equity, in which the conveyance is assailed by his creditors, to direct that the property be sold upon an order of sale 95. Atwill v. Belden, 1 La. 504. 96. In re Strike, 1 Bland (Md.), 57. 97. Warden v. Browning, 12 Hun (N. Y.), 497. 98. Howland v. Knox, 59 Iowa, 46, 12 N. W. 777. 99. Pratt v. Burr, 22 Fed. Cas. No. 11,372, 5 Biss. 36. 1. Gorman v. Glenn, 25 Ky. L. Rep. 1755, 78 S. W. 873. 2. Muggs v. Helgemeier, 81 Ind. Compare Whitehall v. Crawford, 37 Ind. 147. 120. |