the person who advanced the consideration therefor, subsequently conveys it to the latter's wife in pursuance of an arrangement when the first deed was made, the wife also takes the land impressed with the same trust." Where the person who pays the consideration for the real estate conveyed to another is under an existing moral obligation to pay the money to or for the grantee, and he pays the consideration solely with intent to discharge that obligation, no trust in favor of his creditors arises under a statute creating a resulting trust in favor of the creditors of a person paying the consideration for a grant to another.50

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§ 35. Liability as to property never in possession.—A fraudulent grantee cannot be charged as trustee or with the value of property which has never been in his possession or under his control, even though he holds a fraudulent bill of sale therefor.52 But a person who has allowed his name to be used as party to a fraudulent assignment will be liable to account for the property to those entitled, though no part of the property has come to his hands. One who is sued by his grantor's creditors because of a fraudulent conveyance of personalty made to him cannot defend on the ground that possession has continued in the grantor, and this fact will not prevent a judgment requiring the fraudulent assignee to account for such property. Such fraudulent assignee is a trustee ex maleficio for the benefit of the assignor's creditors and may be compelled to account as such.55

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49. Donovan v. Sheridan, 37 N. Y. Super. Ct. 256.

50. Wolford v. Farnham, 47 Minn. 95, 49 N. W. 528.

51. Putzel v. Shulhof, 59 N. Y. Super. Ct. 88, 13 N. Y. Supp. 231; Nicholson v. Leavitt, 6 N. Y. Super. Ct. 252; Gutterson v. Morse, 58 N. H. 529; Greenleaf v. Perin, 8 N. H. 273; Bolling v. Harrison, 2 Patt. & H. (Va.) 532.

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52. Gutterson v. Morse, 58 N. H. 529.

53. Hughes v. Bloomer, 9 Paige (N. Y.), 269.

54. James Goold Co. v. Maheady, 38 Hun (N. Y.), 294.

55. James Goold Co. v. Maheady, supra, citing Dewey v. Moyer, 72 N. Y. 70, and distinguishing Nicholson v. Leavitt, supra.

§ 36. Liability as garnishee.—In many jurisdictions a fraudulent grantee is liable to his grantor's creditors in garnishment for the property so conveyed, or the proceeds thereof if he has disposed of the same, while in other jurisdictions he is not. This subject is fully treated in another chapter.5

§ 37. Extent of liability in general.-The grantee in a transfer of property which is fraudulent as to creditors of the grantor is liable to those creditors, to the extent necessary to satisfy their claims, to the extent and for the full value of the property fraudulently transferred to him remaining in his hands and the proceeds of such as he has sold or exchanged, regardless of what he may have paid for it." The criterion in determining the value of the property is its value at the time and place of the con

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veyance. A sum exceeding the value of the property cannot be awarded against the grantee, in order to punish him for his wrong-doing, however scandalous the fraud may be.59 Where the fraudulent transferee of a patent has taken, in exchange therefor, stock in a corporation, the incidental advantage resulting from appreciation of its value by the corporate management accrues to the grantor's creditors.60 Where the property advances in value beyond the legal rate of interest the creditors, in subjecting the property, will be restricted to the purchase price, with legal interest thereon.61 Where the grantee or a privy to a fraudulent conveyance sells or exchanges the property at an advanced price to a bona fide purchaser, he may be held liable for the increased value.62 Where the fraudulent transferee sells the property for less than its value, the recovery in a creditors' suit is not to be limited to the proceeds, but he may be charged with the full value at the time of the transfer. And he should be charged with the value thereof, though he transfers it to another without receiving value therefor. But it has been held that where the creditors with a knowledge of all the facts delayed for several years to assert their rights, the grantee was properly

Schultze v. Schultze (Tex. Civ. App. 1901), 66 S. W. 56.

58. Hamilton Nat. Bank v. Halsted, 134 N. Y. 520, 31 N. E. 900, 30 Am. St. Rep. 639; Cottingham v. Greeley Barnham Grocery Co., 129 Ala. 200, 30 So. 560, 87 Am. St. Rep. 58; Muskegon Valley Furniture Co. v. Phillips, 113 Ala. 314, 21 So. 822; Op. penheimer v. Halff, 68 Tex. 409, 4 S. W. 562.

59. Hamilton Nat. Bank v. Halsted, 134 N. Y. 520.

60. Gillett v. Bate, 86 N. Y. 87, 10 Abb. N. C. 88.

61. Hart v. Dogge, 27 Neb. 256, 42 N. W. 1035.

62. Warner v. Blakeman, 4 Abb. Dec. (N. Y.) 530, 4 Keyes, 487; Jones

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v. Davenport, 44 N. J. Eq. 33, 13 Atl. 652, where a husband transferred to his wife certain shares of bank stock for $2,500 less than she realized several months afterwards, the wife was personally liable to his creditors for the sum which she received from the sale; Vance Shoe Co. v. Haught, 41 W. Va. 275, 23 S. E. 553; Ringold v. Suiter, 35 W. Va. 186, 13 S. E. 46.

63. Hamilton Nat. Bank v. Halsted, 134 N. Y. 520, 31 N. E. 900, 30 Am. St. Rep. 693, modifying 56 Hun, 530, 9 N. Y. Supp. 852; Hargreaves v. Tennis, 63 Neb. 356, 88 N. W. 486; Vance Shoe Co. v. Haught, 41 W. Va. 275, 23 S. E. 553.

64. Victor v. Levy, 72 Hun (N. Y.), 263, 25 N. Y. Supp. 644.

chargeable only with what he had actually received for the prop→ erty, and not with its estimated value. The fraudulent grantee of notes and accounts will be chargeable at the instance of creditors with the sums actually collected and received thereon, and the actual value of those remaining in his hands,66 over and above his just demands, where part of the consideration for the transfer was a legal claim against the grantor.67 One to whom certificates of stock are transferred without consideration, and in fraud of creditors, and who pays a loan for which they were previously pledged, is liable to the creditors of his assignor, for the full value of the stock at the time of the transfer less the amount of the loan.68 So, a fraudulent grantee of property upon which there are prior liens or incumbrances, is liable to the creditors of the grantor only for the value of the property, less any valid liens existing against it when the alleged transfer was made. But where the fraudulent grantee conveys the property as security for a loan to himself, he cannot, in an action by a judgment creditor of the grantor to enforce his personal liability as such fraudulent grantee, plead in set off a debt due him by the grantor."

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§ 38. Rents, issues, and profits.-The fraudulent grantee of property is personally chargeable with and accountable for the rents, issues, and profits thereof from the commencement of his possession, or from the time it was unjustly withheld from the

65. Cutcheon v. Corbitt, 99 Mich. 578, 58 N. W. 479, modifying 88 Mich. 594, 50 N. W. 756.

66. Klein .v. Hoffheimer, 132 U. S. 367, 10 Sup. Ct. 130, 33 L. Ed. 373; Bouton v. Smith, 113 Ill. 481.

The proper decree in favor of a creditor against the fraudulent holder is for an account for the amounts received, and for the proceeds of the notes, and not for the nominal amount of the notes. Bozman v. Draughan, 3 Stew. (Ala.) 243.

67. Bouton V. Smith, 113 Ill.

481.

68. Hamilton Nat. Bank v. Halsted, 134 N. Y. 520.

69. Powell v. Jeffries, 5 Ill. 387; Wells v. White, 142 Mass. 518, 8 N. E. 442; Meyer v. Stone, 21 Neb. 717, 33 N. W. 420; Smith v. Sands, 17 Neb. 498, 23 N. W. 356.

70. Bigby v. Warnock, 115 Ga. 385, 41 S. E. 622, 57 L. R. A. 754; Hargreaves v. Tennis, 63 Neb. 356, 88 N. W. 486.

creditors." The fraudulent grantee is accountable, however, only to judgment creditors of the grantor," and is not accountable to the creditors at large, for the rents and profits prior to the time when a receiver is appointed." Where the grantor becomes bankrupt after the fraudulent conveyance, the grantee is accountable for the rents and profits subsequent to the act of bank