present an unembarrassed title for sale, after sale, to remove clouds from the title." The remedies in equity and at law are concurrent.78 In an action to enforce a mechanic's lien, a conveyance of the premises before notice of the lien was filed, but after the work was done, may be set aside as in fraud of creditors.79

But

§ 25. Effect of statutory provisions for proceedings supplemental to execution.-Proceedings supplementary to execution are held in New York to be remedies in equity for the collection of the creditor's judgment and were intended as a substitute for the creditors' bill, as formerly used in chancery.80 in other states they are held not to supersede the remedy by creditors' bill to set aside a fraudulent conveyance, but to constitute an additional remedy. The reason assigned for the rule is that the remedy by supplementary proceedings is not as effective as that furnished by creditors' bills as administered by courts of equity, being merely proceedings in the original action for the purpose of enforcing the judgment already recovered.o1 The pendency of proceedings supplementary to execution upon a judgment is not a bar to an action in the nature of a creditors'

77. Taylor v. Dwyer, 131 Ala. 91, 32 So. 509; Phillips v. Kesterson, 154 Ill. 572, 39 N. E. 599, the execution creditor purchasing at his own sale may sue to set aside such conveyance although he is not in possession of the land; Gallman v. Perrie, 47 Miss. 131.

78. Anderson v. Provident Life, etc., Co., 25 Wash. 20.

79. Linneman v. Bieber, 85 Hun (N. Y.), 477, 33 N. Y. Supp. 129; Meehan v. Williams, 36 How. Pr. (N. Y.) 73.

80. Importers & T. Nat. Bank v. Quackenbush, 143 N. Y. 567, 38 N. E. 728; Lynch v. Johnson, 48 N. Y. 27;

Barnes v. Morgan, 2 Hun, 703; Storm v. Waddell, 2 Sand. Ch. 494.

81. Allen v. Tritch, 5 Colo. 222; Feldenheimer v. Tressel, 6 Dak. 265, 43 N. W. 94; Ludes v. Hood, 29 Kan. 49; Scanlan v. Murphy, 51 Minn. 536, 53 N. W. 799; Chamberlain Banking House v. Turner-Frazer Mercantile Co., 66 Neb. 48, 92 N. W. 172; Monroe v. Reid, 46 Neb. 316, 61 N. W. 983; Klosterman v. Mason County Cent. R. Co., 8 Wash. 281, 36 Pac. 136; Winslow v. Dousman, 18 Wis. 456, remedy by creditors' bill restored by statute after it had been held to have been superseded by code provisions for supplementary proceedings.

bill to enforce satisfaction of the judgment out of the property fraudulently conveyed.82 A judgment creditor may discontinue supplementary proceedings and institute a creditors' suit, in his own name, to avoid a fraudulent conveyance, notwithstanding the appointment of a receiver in supplementary proceedings, the judgment having become a lien prior to such appointment.84

§ 26. Action by personal representative after death of grantor. -A fraudulent conveyance cannot be impeached by the grantor. Ordinarily the personal representative of a grantor can only maintain such action as the grantor might if living, and, as the grantor in the conveyance is bound by it, his personal representative, as a general rule, is also bound by it, in the absence of statute. But in some states this rule has been changed by statutes in relation to the distribution of estates and the duties of administrators,86 and in some states the administrator or executor is permitted to recover back property fraudulently conveyed by his decedent, where there is or will be a deficiency of

85

82. Faber v. Matz, 86 Wis. 370, 57 N. W. 39, and the creditor may, at his election, bring such action in his own name or in the name of the receiver.

83. Bennett v. McGuire, 58 Barb. (N. Y.) 625.

84. Gere v. Dibble, 17 How. Pr. (N. Y.) 31.

85. Ala.-Davis v. Swanson, 54 Ala. 277, 25 Am. Rep. 678.

Ark.-Anderson v. Dunn, 19 Ark.

650.

Ga.-Anderson v. Brown, 72 Ga.

713.

Iowa.-Cooley v. Brown, 30 Iowa,

470.

Kan.-Crawford v. Lehr, 20 Kan.

509.

Miss.-Snodgrass v. Andrews, 30 Miss. 472, 64 Am. Dec. 169.

Mo.-Hall v. Callahan, 66 Mo. 316. Ohio.-Doney v. Dunnick, 8 Ohio Cir. Ct. 163, 4 Ohio Cir. Dec. 380.

S. C.-Giles v. Pratt, 1 Hill, 239, 26 Am. Dec. 170.

Tex.-Wilson v. Demander, 71 Tex. 603, 9 S. W. 678.

Compare Webb v. Atkinson, 122 N. C. 683, 29 S. E. 949, on principles of equitable jurisprudence as administrator can sue to set aside a conveyance by the decedent of personal property in fraud of creditors, the estate being insufficient to pay the debts of the decedent. See also Parker v. Flagg, 127 Mass. 28; Janvrin v. Curtis, 63 N. H. 312.

86. Cooley v. Brown, 30 Iowa, 470. 87. Doe v. Clark, 42 Iowa, 123; Martin v. Crosby, 79 Tenn. 198; McLane v. Johnson, 43 Vt. 48.

assets to pay creditors. In New York the statute provides that the executor or administrator may, for the benefit of creditors, disaffirm all transfers in fraud of the rights of creditors. In some states the personal representative of the decedent is made by statute a trustee for the creditors of the decedent, with respect to lands conveyed by him in fraud of his creditors, and may sue to set aside a fraudulent conveyance."

90

27. Action by creditor after death of grantor.-The proper remedy of a creditor, after the death of the debtor, to attack a conveyance made by the decedent as fraudulent as to creditors, is, as a rule, held to be by a bill in equity to set aside the conveyance and subject the land to the payment of the debt." In New York the creditor has by statute a primary right to sue to set aside a fraudulent conveyance, to be exercised independently of the right vested in any one else, and it is not necessary that he should have previously obtained judgment nor does his right to sue depend upon the refusal of the personal representatives to sue,92 as was formerly the rule." The personal representa

88. Beith v. Porter, 119 Mich. 365, 78 N. W. 336, 75 Am. St. Rep. 402, such a statute is merely declaratory of the common law; Ecklor v. Wolcott, 115 Wis. 19, 90 N. W. 1081.

89. West Troy Nat. Bank v. Levy, 127 N. Y. 549, 28 N. E. 592.

90. Frost v. Libby, 79 Me. 56, 8 Atl. 149; Caswell v. Caswell, 28 Me. 232; Doney v. Clark, 55 Ohio St. 294, 45 N. E. 316.

91. Hagan v. Walker, 14 How. (U. S.) 29, 14 L. Ed. 312; Chambers v. Sallie 29 Ark. 407; Trippe v. Ward, 2 Ga. 304, the jurisdiction of law and equity is concurrent; Snodgrass v. Andrews, 30 Miss. 472; Houseman v. Grossman, 179 Pa. St. 453, 35 Atl. 736, the death of the debtor furnishes a reason for entertaining such a bill, although the remedy ordinarily is by

execution, sale and action of ejectment; Fowler's Appeal, 87 Pa. St. 449, at least if the creditor has a lien; Bankes v. Lindemuth, 23 Pa. Co. Ct. 459; Heard v. McKinney, 1 Tex. Unrep. Cas. 83.

92. National Bank of Republic v. Thurber, 39 Misc. Rep. (N. Y.) 13, 78 N. Y. Supp. 766; Lilienthal v. Drucklieb, 92 Fed. 753, 34 C. C. A. 657; Montgomery v. Boyd, 78 App. Div. (N. Y.) 64, 79 N. Y. Supp. 879; Nill v. Phelps, 20 Misc. Rep. 488, 46 N. Y. Supp. 662.

93. Harvey v. McDonnell, 113 N. Y. 526, 21 N. E. 695; Lichtenberg v. Herdtfelder, 103 N. Y. 302, 8 N. E. 526. The rule as laid down in these cases was changed by the statutes of 1889, 1894 and 1897 being now section 7 of the Personal Property Law.

94

tive also has the right to bring such action on behalf of the creditor. In Massachusetts the remedy of the creditor is through the administrator who is required to bring an action at the request of the creditor under penalty of removal.95 In Vermont a creditor may sue, on obtaining leave of the probate court, in the name of the personal representative, but may prosecute a suit in his own name without such leave." Where the personal representative is by statute given power to sue or is required to sue to recover property fraudulently conveyed, for the benefit of creditors, the creditor himself may nevertheless maintain an action where the action cannot for some reason be brought by the personal representative," or he stands in a position antagonistic to the interests of the creditors, or refuses, on proper request by a creditor, to bring the action."

98

99

§ 28. Relief in equity on theory of resulting trust.-In some jurisdictions, sometimes as in New York by virtue of a statutory provision, where land is conveyed to one person and the consideration is paid by another with the intent to defraud creditors, a trust results to the then existing creditors which is enforceable in equity to the extent to which it may be necessary to satisfy their just demands. In other jurisdictions, in the absence of a statute on the subject, the courts have held that the remedy of a creditor defrauded by such a conveyance is by a

94. See statute and cases cited in last two preceding notes.

95. Putney v. Fletcher, 148 Mass. 247, 19 N. E. 370.

96. Farmers' Nat. Bank v. Thomson, 74 Vt. 442, 52 Atl. 961.

97. Emmons v. Barton, 109 Cal. 662, 42 Pac. 303, where the personal representative was the alleged fraudulent grantee.

98. Barker v. Battey, 62 Kan. 584, 64 Pac. 75.

99. See New York cases cited in preceding notes 92 and 93.

1. Wood v. Robinson, 22 N. Y. 564; Garfield v. Hatmaker, 15 N. Y. 475.

2. Overnire v. Haworth, 48 Minn. 372, 51 N. W. 121, 31 Am. St. Rep. 660; Mason v. Eichels, 8 Ohio Dec. 436, 8 Cinc. L. Bul. 7. See also Property purchased in name of third person, chap. II, § 5, supra; chap. IV, § 29, supra; Remedy where equit able interests are sought to be reached, chap. XV, § 18, supra.

suit in equity founded on the fraud and not on the theory of a resulting trust.3

§ 29. Jurisdiction with respect to transfers of personal property.-An action to set aside a transfer of personal property as in fraud of creditors may be maintained in the same manner, and under the same circumstances and upon the same grounds, as an action to set aside a conveyance of real property, and it is immaterial whether the transfer is void because fraudulently made, or because the instrument of transfer was not filed as required by law. This rule applies to an action to set aside a fraudulent transfer of a chose in action.

8 30. Election of remedies.-If both a court of law and a court of equity have concurrent jurisdiction over the subject matter, a party seeking relief may elect as to which tribunal shall determine the controversy. One seeking relief against a fraudulent conveyance by his debtor may be compelled to elect whether the suit should be prosecuted at law or in equity, but an election will not as a rule be compelled unless the legal proceeding and the proceeding in equity are instituted to obtain the same relief." A creditor who has levied executions on property conveyed and

3. Perea v. DeGallegos, 3 N. M. 151, 3 Pac. 246; Rhem v. Tull, 35 N. C. 57. Compare Whitney v. Stearns, 52 Mass. 319.

4. Martha v. Curley, 90 N. Y. 372; Webb v. Staves, 1 App. Div. (N. Y.) 145, 37 N. Y. Supp. 414; McClosky v. Stewart, 63 How. Pr. (N. Y.) 137; Feldenheimer v. Tressel, 6 Dak. 265, 43 N. W. 94; Sobernheimer v. Wheeler, 45 N. J. Eq. 614, 18 Atl. 234; Smith v. Wood, 42 N. J. Eq. 563, 7 Atl. 881, 44 N. J. Eq. 603, 17 Atl. 1104; Meyer Boot, etc., Co. v. Shenkberg Co., 11 S. D. 620, 20 N. W. 126.

5. Webb v. Staves, 1 App. Div. (N. Y.) 145, 37 N. Y. Supp. 414.

6. Hall & Farley v. Alabama Terminal, etc., Co. (Ala. 1905), 39 So. 285.

7. Bently v. Dillard, 6 Ark. 79; Sampson v. Payne, 5 Munf. (Va.) 176; Bumley v. Lambert, 1 Wash. (Va.) 308; Miller v. Lake, 24 W. Va. 545.

8. Planter's, etc., Bank v. Walker, 7 Ala. 926; Ulrich v. Duson, 36 La. Ann. 989; Lanahan v. Latrobe, 7 Md. 268; Rodgers v. Kinsey, 3 Ohio Dec. 308, 7 Cinc. L. Bul. 64.

9. Powers v. Benedict, 88 N. Y. 605.