seize property fraudulently conveyed and the sheriff or other officer has taken it under process duly issued, they have a right to show, in defense to an action for ejectment, replevin, trespass, trover, or other proceedings, brought by the grantee against the creditor, or against the officer making the levy, to compel the restoration of the property or recover damages for the seizure, that the title of the plaintiff, claiming under a conveyance or transfer from the grantor, is fraudulent as against the creditors of the grantor." A purchaser from the execution creditor has the same right to show the fraudulent character of the conveyance in an action brought against him by the fraudulent grantee." Evidence that plaintiff's title was acquired in fraud of creditors is admissible under a denial of his title in a suit against a sheriff for property seized by him under a writ," and the sheriff is not bound to prove insolvency of the grantor in a conveyance absolutely void under the statute." If a judgment creditor has been made a party to the action by the grantee he may attack the conveyance, if affirmative relief is sought against him, although he

91. N. Y.-Rinchey v. Stryker, 28 N. Y. 45, 84 Am. Dec. 324; Hall v. Stryker, 27 N. Y. 596; Thayer v. Willet, 18 N. Y. Super. Ct. 344, 9 Abb. Pr. 325.

In replevin for property attached by a sheriff as belonging to a third person, the sheriff cannot justify by proof that it was transferred by such third person to the plaintiff in the replevin under fraudulent contract of sale. v. Reilly, 57 How. Prac. 75. Cal.-Bolander v. Gentry, 36 Cal. 105, 95 Am. Dec. 162.

a

Deutsch

Mass.-Gates v. Gates, 15 Mass. 310. Compare Bond v. Endicott, 149 Mass. 282, 21 N. E. 361.

Mich.-French v. Newberg, 124 Mich. 147, 82 N. W. 840; Pierce v. Hill, 35 Mich. 194, 24 Am. Rep. 541;

Haynes v. Ledyard, 35 Mich. 319.

N. H.-Walker v. Lovell, 28 N. H. 138, 61 Am. Dec. 605; Russell v. Dyer, 3 N. H. 186.

Ohio.-Dougherty v. Schlotman, 1 Cinc. Super. Ct. 292.

S. C.-Paris v. DuPre, 17 S. C. 282.

8. D.-Griswold v. Sundback, 6 S. D. 269, 60 N. W. 1068, but the officer loses this right where he relinquishes his lien and becomes a trespasser from the beginning, by unlawfully turning the property over to an agent of the plaintiff in the attachment. 92. Russell v. Fabyan, 34 N. H. 218.

93. Mason v. Vestal, 88 Cal. 396, 26 Pac. 213, 22 Am. St. Rep. 310.

94. Calkins v. Howard (Cal. App. 1905), 83 Pac. 280.

has not attempted to seize the property under his judgment. But where the legal title is in a complainant seeking to redeem, mere creditors as such, without the intervention of legal process to divest such title, have no right to interfere, on the ground that the conveyance to him was fraudulent as against creditors."

§ 15. Contest of claims to property levied on.-A sheriff and his indemnitors being sued for trespass in levying upon personal property, under an execution against one from whom plaintiff acquired title, may not attack the transfer for fraud without proving a judgment against the transferrer, and that the execution was issued pursuant thereto so as to acquire the standing of the creditors of the transferrer. An officer sued in trover for property attached by him as the property of a third person and sold under a void judgment cannot attack a plaintiff's title for fraud, until he shows a valid debt for which the attachment was made. A judgment must be shown if the officer justifies under an execution, or a debt if under a writ of attachment, because it is only by showing that he acted for the creditor that he can question the title of the transferee." Although the officer levying a writ of attachment and made defendant in an action by the transferee of the property to recover back the property seized need not show recovery of a judgment against the transferrer,' he must show that a debt was owing to the attaching creditor by the transferrer, and that the attachment was regularly issued.3

98

16. Right of creditor on intervention of grantee.-Where property which has been fraudulently conveyed by a debtor has been levied upon by a creditor by execution or attachment as that

95. Kelly v. Lenihan, 56 Ind. 448; Evans v. Ely, 55 Wis. 194, 12 N. W. 372.

96. Stone v. Bartlett, 46 Me. 438. 97. McKinlay v. Bowe, 97 N. Y. 93; Keys v. Grannis, 3 Nev. 548. 98. Trowbridge V. Bullard, 81

Mich. 451, 45 N. W. 1012.

99. Sandford Mfg. Co. v. Wiggin, 14 N. H. 441, 40 Am. Dec. 198. 1. Botcher v. Berry, 6 Mont. 448, 13 Pac. 45.

2. Maley v. Barrett, 34 Tenn. 501. 3. Keys v. Grannis, 3 Nev. 548.

5

of the debtor, and the grantee or transferee interposes a claim thereto under his conveyance from the debtor, the creditor may resist such claim and attack the transfer as being fraudulent and void as to creditors. An attaching creditor may show the fraudulent character of a conveyance of the property to one asserting a claim as a third person in the attachment proceedings. In some instances the statute provides that where an execution is so levied, and the plaintiff suggests that defendant has conveyed his property to defraud creditors or to avoid payment of the execution, an issue shall be made up and tried by a jury, who shall determine whether the conveyance is fraudulent or without consideration, and the burden rests upon the grantee to show that the conveyance was made in good faith.'

8

8 17. Intervention by creditors.-Creditors whose rights are effected may intervene in suits affecting the property or interests of their debtors and prosecute or defend the claim, where there is reason to apprehend that the debtor is not sufficiently active in defending his rights or is about to abandon his rights in fraud of his creditors. A mere general creditor cannot intervene to stop the execution of a judgment against his debtor on the ground that it is fraudulent and void as to him, since, if he should succeed in setting aside the execution, it would not redound to his benefit, but the debtor, into whose possession the goods levied upon would be returned, might sell or dispose of them at pleasure. A suggestion against a confession of judgment as fraudulent can only be

4. Ala.-Loeb v. Manasses, 78 Ala. 555.

Ark.-Blair v. Alston, 26 Ark. 41.
Cal.-Mamlock v. White, 20 Cal.

598.

Ga.-Cole v. Byrd, 83 Ga. 207, 9 S. E. 613.

Md.-Cecil Bank v. Snively, 23 Md.

253.

Minn.-North Star Boot, etc., Co. v. Ladd, 32 Minn. 381, 20 N. W. 334.

Neb.-Greenwood v. Ingersoll, 61 Neb. 785, 86 N. W. 476.

5. Bernheim V. Dibrell (Miss. 1892), 11 So. 795.

6. Smith v. Newlon, 62 Miss. 230. 7. North Star Boot, etc., Co. v. Ladd, 32 Minn. 381.

8. Succession of Baum, 11 Rob. (La.) 314; Clapp v. Eli, 27 N. J. L. 555. 9. Ludlow v. Dutton, 1 Phila. (Pa.) 226.

filed by leave of court, on cause shown creating a reasonable ground to believe that the confession is fraudulent, and upon such conditions as the court imposes.10

18. Remedy where equitable interests in real estate are sought to be reached.-Equitable interests of a debtor in property the legal title of which he does not possess cannot be reached by execution or attachment," in the absence of a statute allowing such remedy.12 Where a debtor, therefore, pays the purchase money of lands, and takes the conveyance, or causes the lands to be conveyed, to his wife, child, or other third person, even though the transaction was fraudulent and intended to protect the land from the claims of creditors, his interest in the property so purchased and conveyed being merely an equitable and not a legal interest, is not, in the absence of a statute, the subject of a levy and sale under an execution or attachment by his creditors, but can be reached only by a bill in equity, or an action in the nature of a bill in equity, to subject the land to the debt.13 By statute, however, in certain states, the interest of a debtor in lands which

10. Hatch v. Clark, Rice (S. C.), 268; Robinson v. Stuart, 1 Rich. (S. C.) 3.

11. Anthony v. Wood, 96 N. Y. 180, 67 How Pr. 424, rev'g 29 Hun, 239; Hartshorn v. Eames, 31 Me. 93. Where one has an estate in equity which enables him to call for the legal title without further condition save the proof of the facts which establish his estate, this trust estate is made the subject of sale under execution; but where one has only a right in equity to convert the holder of the legal estate into a trustee and call for a conveyance his right is not subject to a sale under execution. Hinsdale v. Thorton, 75 N. C. 181.

12. Peterson v. Farmer, 121 Mass. 476; Livermore v. Boutelle, 77 Mass. 217, 71 Am. Dec. 708; Shute v.

Harder, 9 Tenn. 3, 24 Am. Dec. 427.

13. N. Y.-Garfield v. Hatmaker, 15 N. Y. 475, overruling the doctrine of Wait v. Day, 4 Den. 439, and Arnot v. Beadle, Lalor, 181, and approving that of Brewster v. Power, 10 Paige, 562. See also Underwood v. Sutcliffe, 77 N. Y. 58; Everett v. Everett, 48 N. Y. 218; Ocean Nat. Bank v. Olcott, 46 N. Y. 12; McCartney v. Bostwick, 32 N. Y. 53; Wood v. Robinson, 22 N. Y. 564; Wright v. Douglass, 3 Barb.

554.

Ala.-Doe v. McKinney, 5 Ala. 719. Fla.-Robinson v. Springfield Co., 21 Fla. 203.

Me.-Fletcher v. Tuttle, 97 Me. 491, 54 Atl. 1110; Webster v. Folsom, 58 N. E. 230; Griffin v. Nitcher, 57 Me. 270.

Mass.-Hamilton V. Cone, 99

he has purchased and caused to be conveyed to a third person with the intent to defraud his creditors is liable to attachment or execution.1 In some states, although a levy of execution or attachment will not divest the legal estate in the land, a court of equity will aid a creditor, who has exhausted all legal remedies and extended his execution on the land, in perfecting his title thereto.15 Where a debtor purchases personal property in the name of a third person, even though a bill of sale be made to the latter, his creditors may levy execution thereon.16

Mass. 478; Howe v. Bishop, 44 Mass.

26.

Mich.-Maynard

V. Hoskins, 9 Mich. 485; Trask v. Green, 9 Mich. 358.

Miss.-Furguson v. Bobo, 54 Miss. 121; Carlisle v. Tindall, 49 Miss. 229. N. J.-Haggerty v. Nixon, 26 N. J. Eq. 42.

N. C.-Everett v. Raby, 104 N. C. 479, 10 S. E. 526, 17 Am. St. Rep. 685; Gentry v. Harper, 55 N. C. 177; Jimmerson v. Duncan, 48 N. C. 537; Gowing v. Rich, 23 N. C. 553. Compare Dobson v. Erwin, 18 N. C. 569. Or.-Silver v. Lee, 38 Or. 508, 63 Pac. 882, a purchaser at execution sale acquires no title.

S. C.-Bauskett v. Holsondack, 2 Rich. 624.

Tenn.-Smith v. Hinson, 51 Tenn.

250.

Vt.-Buck v. Gilson, 37 Vt. 653; Dewey v. Long, 25 Vt. 564.

Wis.-Allen v. McRae, 91 Wis. 226, 64 N. W. 889; Gilbert v. Stockman, 81 Wis. 602, 51 N. W. 1076, 52 N. W. 1045, 29 Am. St. Rep. 922; Gettelman V. Gitz, 78 Wis. 439, 47 N. W. 660; Hyde v. Chapman, 33 Wis. 391. See also Property purchased in name of third person, chap. II, § 5, supra; chap. IV, § 29, supra.

14. Ark.-Stix v. Chaytor, 55 Ark.

116, 17 S. W. 707; Hershy v. Latham, 42 Ark. 305; Harman v. May, 40 Ark. 146. Compare Doster v. Manistee Nat. Bank. 67 Ark. 325.

Ind.-Eve v. Louis, 91 Ind. 457; Hanna v. Aebker, 84 Ind. 411; Hubble v. Osborn, 31 Ind. 249; Tevis v. Doe, 3 Ind. 129.

Mass.-Peterson v. Farnum, 121 Mass. 476; Clark v. Chamberlain, 95 Mass. 257.

Mo.-Dunnica v. Coy, 28 Mo. 525, 75 Am. Dec. 133, 24 Mo. 167, 69 Am. Dec. 420; Herrington v. Herrington, 27 Mo. 560; Eddy v. Baldwin, 23 Mo. 588; Rankin v. Harper, 23 Mo. 579.

Pa.-Appeal of Winch, 61 Pa. S. 424. Tenn.-Thomas v. Walker, 25 Tenn. 93; Smitheal v. Gray, 20 Tenn. 491, 34 Am. Dec. 664; Shute v. Harder, 9 Tenn. 3; Russell v. Stinson, 6 Tenn. 1.

Crops raised by the debtor upon lands so conveyed are subject to execution for his debts. TurnerLooker Co. v. Garvey, 19 Ky. L. Rep. 1205, 43 S. W. 202.

15. Botsford v. Beers, 11 Conn. 369; Griffin v. Nitcher, 57 Me. 270; Low v. Marco, 53 Me. 45; Dockray v. Mason, 48 Me. 178; Williams v. Michenor, 11 N. J. Eq. 520. Compare Mason v. Eichels, 8 Ohio Dec. 436, 8 Cinc. L. Bul. 7.

16. Golding v. Brackett, 34 Me.