CHAPTER XV. REMEDIES. Section 1. Nature and form of remedy in general. 2. Remedy by action at law. 3. Remedies of creditors on ground of nullity of transfer generally. 4. Execution generally. 5. Where property has been disposed of by grantee or purchaser. 6. Where conveyance was made before rendition of judgment. 7. Attachment generally. 8. Property which may be seized. 9. Garnishment generally. 10. Where lands are subject of conveyance. 11. Debtor's fraudulent transfer of claim due from garnishee. 12. Statutory provisions. 13. Ejectment. 14. Right of creditor or levying officer to attack conveyance in action by grantee generally. 15. Contest of claim to property levied on. 16. Right of creditor on intervention by grantee. 17. Intervention by creditors. 18. Remedy where equitable interests in real estate are sought to be reached. 19. Right of creditor to appropriate property without legal process. 20. Collateral attack on fraudulent judgment or transfer. 21. Remedy by action for damages. 22. Action for penalty. 23. Remedy by suit in equity generally. 24. Action in equity in aid of remedy at law. 25. Effect of statutory provisions for proceedings supplemental to execution. 26. Action by personal representative after death of grantor. 27. Action by creditor after death of grantor. 28. Relief in equity on theory of resulting trust. 29. Jurisdiction with respect to transfers of personal property. 30. Election of remedies. 31. Conditions precedent; necessity of exhausting legal remedy generally. 32. Necessity of judgment in general. 33. Statutory modification of rule as to necessity of judgment. 34. Sufficiency of judgment generally. 35. Effect of foreign judgment. 36. Effect of judgment of justice of the peace. Section 37. Effect of having acquired lien by attachment. 38. Effect of lien acquired otherwise than by judgment or attachment. 39. Circumstances excusing failure to obtain judgment generally. 40. Non-residence of debtor or absence from jurisdiction. 41. Enforcement of claims against estates of decedents. 42. Adjudication equivalent to judgment. 43. Waiver of failure to secure judgment. 44. Necessity of issuance of execution generally. 45. Rule where judgment is not per se a lien. 46. Rule where creditor has acquired a lien. 47. Necessity of levy of execution. 48. Necessity of return of execution unsatisfied generally. 49. Rule where action is brought in aid of execution or legal remedy. 50. Sufficiency of return. 51. Effect of return of execution as evidence. 52. Necessity of outstanding execution. 53. Issuance and return of execution against decedent's estate. 54. Necessity of lien in general. 55. Necessity of exhausting other assets of debtor. 56. Exhaustion of estate of deceased debtor. 57. Necessity of pursuing legal remedy against debtor's co-obligor. 58. Reimbursement of grantee or other creditors. 59. Joinder of causes of action. 60. Jurisdiction of the person and cause of action. 61. Venue. 62. Parties plaintiff. 63. Parties defendant in general. 64. Grantor or debtor as defendant. 65. Representatives of grantor or debtor. 66. Co-grantors or co-obligors. 67. Grantee as defendant. 68. Intermediate grantees. 69. Purchasers from grantee. 70. Representatives of grantee; assignees. 73. Defenses in general. 74. Impeachment of creditor's claim or judgment. 75. Effect of judgment obtained by creditor. 76. Effect of judgment in absence of fraud or collusion. 77. Alternative defenses. 78. Limitation of actions generally. 79. Nature of action. 80. Accrual of right of action. 81. Prior establishment of creditor's claim. 82. Laches. Section 1. Nature and form of remedy in general.-Every remedy should be given by the courts to defeat any effort to defraud creditors of their just rights.1 Courts of law and courts of equity have concurrent jurisdiction over alienations made in fraud of creditors. An action by a creditor to recover the amount which the grantee in an alleged fraudulent conveyance from the debtor agreed to pay upon the creditor's claim, in consideration of the transfer, is not an action to set aside a fraudulent conveyance. A bill filed by an attachment creditor asking that a conveyance be set aside as fraudulent, and that, if it be deemed not fraudulent, complainant's judgment should be declared an incumbrance on the property, is not a creditors' bill, as the benefits would inure to complainant alone. If a transfer of property made in fraud of creditors is voidable in some form of judicial process, both by the law of the state where it was made and by that of the state where the remedy is sought, the question as to the form of such remedy is to be determined by the lex fori.5 § 2. Remedy by action at law.-A conveyance fraudulent as to creditors may be set aside in an action of ejectment in a court of law as well as upon bill of complaint in a court of equity, the jurisdiction of law and equity courts being concurrent. A 1. Banks v. McCandless, 119 Ga. 793, 47 S. E. 332. 2. U. 8.—Orendorf v. Budlong, 12 Fed. 24. Ga.-Lathrop v. McBurney, 71 Ga. 815; Thurmond v. Reese, 3 Ga. 449, 46 Am. Dec. 440. Mich.-Cleland v. Taylor, 3 Mich. 201. Mo.-Potter v. Adams, 125 Mo. 118, 28 S. W. 490, 46 Am. St. Rep. 478. N. J.-Mulford v. Peterson, 35 N. J. L. 127; Moore v. Williamson, 44 N. J. Eq. 496, 14 Atl. 587, 1 L. R. A. 336; Smith v. Wood, 42 N. J. Eq. 563, 7 Atl. 881, aff'd 44 N. J. Eq. 603, 17 Atl. 1104; Cox v. Gruver, 40 N. J. Eq. 473, 3 Atl. 172. Va.-Garland v. Rives, 4 Rand. 282, 15 Am. Dec. 756. 3. Goldman v. Biddle, 118 Ind. 492, 21 N. E. 43. 4. Voorhees v. Reford, 14 N. J. Eq. 155. 5. Drake v. Rice, 130 Mass. 410. 6. Cleland v. Taylor, 3 Mich. 201; Potter v. Adams, 125 Mo. 118, 28 S. W. 490, 46 Am. St. Rep. 478; Carroll v. Salisbury, 28 R. I. 16, 65 Atl. 274. Compare Pease v. Shirlock, 63 Vt. 622, 22 Atl. 661. 9 8 deed may be avoided in a court of law on the ground that it was made with intent to defraud the grantor's creditors. An action by an administrator to recover money alleged to have been obtained under a lease assigned the defendant by the intestate in fraud of his creditors is cognizable at law. The holder of the legal title to land may prosecute an action of trespass against one in possession, it not having been established that the latter has even an equitable right. A chattel mortgage fraudulently contrived for the purpose of defeating creditors is void at law as well as in equity.10 The remedies administered in a court of law are as a general rule based upon the theory that the conveyance alleged to be fraudulent is void or voidable as to creditors, and that a creditor may by legal proceedings seize the property conveyed or its equivalent in the hands of the fraudulent grantee, and show the fraudulent character of the conveyance, on the assertion of a claim to the property by the grantee, either in the proceedings in which the seizure is made, or in some other proceedings." In many jurisdictions the word "void" as used in the statute of Elizabeth, and in the statutes of the different states of this country based upon the former statute, is held to mean that a conveyance fraudulent as to creditors is absolutely void as to them.12 In other jurisdictions, however, such a conveyance is held not absolutely void, but only voidable at the election or instance of creditors proceeding in the mode prescribed by law and 7. Mulford v. Peterson, 35 N. J. L. 127. 8. Doe v. Clark, 42 Iowa, 123. Property which was transferred by gift by an intestate in his life time to defraud creditors cannot be reached in a court of law by his administrator. Anderson v. Belcher, 1 Hill (S. C.), 246, 26 Am. Dec. 174. 9. Cox v. Gruver, 40 N. J. Eq. 473, 3 Atl. 172. 10. Lobsenz v. Burton, 68 N. J. L. 566, 53 Atl. 546. 11. See §§ 3 to 22 following, and cases cited in following notes to this section. 12. Thompson v. Baker, 141 U. S. 648, 12 Sup. Ct. 89, 35 L. Ed. 889; Mason v. Vestal, 88 Cal. 396, 26 Pac. 213, 22 Am. St. Rep. 310; Judson v. Lyford, 84 Cal. 505, 24 Pac. 286; Kimmel v. McRight, 2 Pa. St. 38; Patrick v. Smith, 2 Pa. Super. Ct. 113; Jacobi v. Schloss, 47 Tenn. 385. 4 14 taking active measures to subject the property involved to their debts,13 and even then not as against a bona fide purchaser. When a conveyance is said to be void as against creditors the reference is to such parties when clothed with their judgments and executions, or such other titles as the law has provided for the collection of debts.15 An executed transfer of property passes the title, even if made with intent to hinder, delay, and defraud creditors, and the transferee has a good title until the same is impeached by a creditor in an action brought for that purpose. 16 Such a conveyance is not void per se even as between debtor and creditor. If the creditor condones the fraud and takes no steps to avoid the conveyance, it stands forever as a divestiture of the title of the debtor.17 It has been held that where a debtor conveys property with intent to create a secret resulting trust or interest in the grantor and with the purpose of defrauding creditors, the transfer will give rise to a trust in favor of the creditors meant to be defrauded, which may be enforced through the medium of an action at common law.18 In some states there are statutory provisions by virtue of which the creditor can have a scire facias against any person claiming under an alleged fraudulent conveyance. 19 § 3. Remedies of creditors on ground of nullity of transfer generally. Under the statutes as to fraudulent conveyances a 13. In re Estes, 5 Fed. 60; Webb v. Brown, 3 Ohio St. 246; French Lumbering Co. v. Theriault, 107 Wis. 627, 83 N. W. 927, 81 Am. St. Rep. 856, 51 L. R. A. 910. 14. In re Estes, 5 Fed. 60. 15. Van Heusen v. Radcliff, 17 N. Y. 580, 72 Am. Dec. 780. See Conditions precedent to suit in equity to set aside conveyance, chap. XV, § 31, infra. 16. Gibson v. National Park Bank, 98 N. Y. 97; Harding v. Elliott, 12 Misc. Rep. (N. Y.) 521, 33 N. Y. 17. Parrott v. Crawford (Ind. T. 1904), 82 S. W. 688. See Assent or confirmation by creditors, chap. III, § 8, supra; Transactions between persons in confidential relations, chap. IX, supra. 18. Robinett v. Donnelly, 5 Phila. (Pa.) 361. 19. Morrison v. McNeill, 51 N. C. 450; Wintz v. Webb, 14 N. C. 27. |