mortgaged by the defendant in execution may, notwithstanding, go into equity to avoid the conveyances in toto. The only effect on the remedy in equity would be that, on a claim of property interposed, the complainant would be compelled to elect, if the matters of controversy are identical, whether the suit should be prosecuted at law or in equity.10 The rule is well established that where a judgment creditor causes an execution to be levied on the land fraudulently conveyed and the property to be sold thereunder, after purchasing at the execution, he may then bring suit in equity to have the conveyance set aside as fraudulent and a cloud upon his title." But in some jurisdictions it has been held that where a judgment creditor has pursued property fraudulently conveyed to execution and become the purchaser and taken a sheriff's deed he has no right to call upon a court of equity to remove the fraudulent deed as a cloud upon his title, for the reason that the latter conveyance is to be treated as a nullity and that the title of the purchaser at the execution sale is legal or it is nothing.12 In other states it has been held, under statutes giving to general creditors a remedy by attachment, that

10. Planter's, etc., Bank v. Walker, 7 Ala. 926.

11. N. Y.-Best v. Staple, 61 N. Y. 71; Carpenter v. Simmons, 1 Rob. 360; Porter v. Parmley, 14 Abb. N. C. 16.

U. 8.-Orendorf v. Budlong, 12 Fed. 24.

Ind.-Frakes v. Brown, 2 Blackf.

295.

Iowa.-Howland v. Knox, 59 Iowa, 46, 12 N. W. 777.

Ky.-Gaitskill v. Stivers, 5 Ky. L. Rep. 856.

Miss.-Gallman v. Perrie, 47 Miss.

131.

Mo.-Lionberger v. Baker, 88 Mo. 447, .aff'g 14 Mo. App. 353; Kinealy v. Macklin, 2 Mo. App. 241, rev'd on other grounds 67 Mo. 95.

Ohio.-Barr v. Hatch, 3 Ohio, 527.

R. I.-Tucker v. Denico, 26 R. I. 560, 59 Atl. 920.

Tenn.-Burrow v. Smith, 34 Tenn.

566.

Tex.-Lynn v. Gierse, 48 Tex. 138. Wash.-Wagner v. Law, 3 Wash. 500, 28 Pac. 1109, 29 Pac. 927, 28 Am. St. Rep. 56, 15 L. R. A. 784. See also § 24, supra.

12. Betts v. Nichols, 84 Ala. 278, 4 So. 195; Pettus v. Glover, 68 Ala. 417; Grigg v. Swindal, 67 Ala. 187; Smith v. Cockrell, 66 Ala. 64; Cranston v. Smith, 47 Mich. 189, 10 N. W. 194, and the creditor by thus failing to directly attack the conveyance as fraudulent leaves the question of the fraudulent character of the conveyance in doubt and thereby discourages bidding at the sale; Thigpen v. Pitt, 54 N. C. 49; Malloch v. Plunkett, 9

such creditors cannot resort to equity where they have taken advantage of the statute.'"

14

§ 31. Conditions precedent; necessity of exhausting legal remedy generally. A creditor's suit or an action in the nature of a creditor's suit to set aside a conveyance made in fraud of creditors is governed by the general rules which prevail in equity proceedings. As a general rule it must appear that the creditor has exhausted his legal remedies in attempting to obtain satisfaction of his debt before resorting to equity to that end, or before a creditors' bill to set aside the fraudulent conveyance and reach property conveyed in fraud of creditors can be maintained.16 Except in cases where courts of law and courts of

Grant Ch. (U. C.) 556. Compare Tubbs v. Williams, 26 Tenn. 367, if the judgment creditor should buy the land for less than its value neither the fraudulent grantor nor the fraudulent grantee could complain.

13. Manheim v. Claflin, 81 Ga. 129, 7 S. E. 284; Hardson v. Newton, 63 Ga. 163.

14. Robinson v. Frankville First M. E. Church, 59 Iowa, 717, 12 N. W. 772.

15. Smith v. Ellison (Ark. 1906), 97 S. W. 666, where lien of judgment had expired; Mesmer v. Jenkins, 61 Cal. 151; Detroit Copper, etc., Mills v. Ledwidge, 162 Ill. 305, 44 N. E. 751, a simple contract creditor cannot maintain a bill to obtain discovery; Mullen v. Hewitt, 103 Mo. 639, 15 S. W. 924, a bill cannot be maintained upon a dormant judgment.

16. N. Y.-National Tradesman's Bank v. Wetmore, 42 Hun, 359; Bownes v. Weld, 3 Dlay, 253.

U. 8.-Jones v. Green, 68 U. S. 330, 17 L. Ed. 553.

15

Bank, 67 Ark. 325, 55 S. W. 137, 77
Am. St. Rep. 116, 48 L. R. A. 334;
Clark v. Anthony, 31 Ark. 546.

D. C.-Hess v. Horton, 2 App. Cas. (D. C.) 81.

Fla.-Robinson v. Springfield Co., 21 Fla. 203.

Ill.-Detroit Copper, etc., Mills v. Ledwidge, 162 Ill. 305, 44 N. E. 751; McConnel v. Dickson, 43 Ill. 99; Stone v. Manning, 3 Ill. 530, 35 Am. Dec. 119.

equity have concurrent jurisdiction," a bill to reach a judgment debtor's equitable assets which have been fraudulently conveyed will not lie until the creditor has exhausted his remedy at law to every available extent and has secured a return of his execution nulla bona.18 The right to resort to the jurisdiction of equity in such a case attaches because of the fact that there is no property which can be reached by execution.19 Where property has been purchased by the debtor in the name of a third person the creditor has priority who first acquires a lien by suit in the nature of a creditor's action.20 But where the assets sought to be reached are in their nature subject to execution, and the creditor seeks in equity to remove some obstruction fraudulently interposed to prevent or embarrass a sale under execution, he is not required to first exhaust his legal remedies." A creditor who has acquired a lien on the property can maintain a suit to set aside a fraudulent conveyance thereof by his debtor without the return

N. C.-Wheeler v. Taylor, 41 N. C. 225.

8. C.-Screven v. Bostick, 2 McCord Eq. 410, 16 Am. Dec. 664. Tex.-Taylor v. Gillean, 23 Tex.

508.

17. See §§ 1 and 23, supra.

18. N. Y.-Child v. Brace, 4 Paige, 309; Clarkson v. De Peyster, 3 Paige, 320. See Beadsley Scythe Co. v. Foster, 36 N. Y. 561; Dunlevy v. Tallmadge, 32 N. Y. 457; Starr v. Rathbone, 1 Barb. 70; Strange v. Langley, 3 Barb. Ch. 650; Willis v. Moore, Clark Ch. 150; Howard v. Sheldon, 11 Paige, 558; Austin v. Figueira, 7 Paige, 56.

U. S.-Jones v. Green, 68 U. S. 330, 17 L. Ed. 553.

Fla.-Robinson v. Springfield Co., 21 Fla. 203.

Ill.-Ishmael v. Parker, 13 Ill.

324.

Miss.-Farned v. Harris, 11 Sm. & M. 366.

Tex.-Taylor v. Gillean, 23 Tex.

508.

Wis.-Galloway v. Hamilton, 68 Wis. 651, 32 N. W. 636.

19. Cace v. Beauregard, 101 U. S. 688, 25 L. Ed. 1004; Fleming v. Grafton, 54 Miss. 79.

20. Mandeville V. Campbell, 45 App. Div. (N. Y.) 512, 61 N. Y. Supp. 443.

21. Schofield v. Ute Coal, etc., Co., 92 Fed. 269, 34 C. C. A. 334; Stock Growers' Bank v. Newton, 13 Colo. 245, 22 Pac. 444; Logan v. Logan, 22 Fla. 561, 1 Am. St. Rep. 212; Loving v. Pairo, 10 Iowa, 282, 77 Am. Dec. 108; Lillard v. McGee, 7 Ky. 165; Spooner v. Travelers' Ins. Co., 76 Minn. 311, 79 N. W. 305, 77 Am. St. Rep. 651; Zoll v. Soper, 75 Mo. 460; Galloway v. Hamilton, 68 Wis. 651, 32 N. W. 636.

of an execution nulla bona or without exhausting his other legal remedies.2

8 32. Necessity of judgment in general.—The general rule may be regarded as established by abundant authority that a suit by a simple contract creditor, or general creditor, or creditor at large, who has not established his demand at law, to set aside an alleged fraudulent conveyance by his debtor of property applicable to the payment of the debt, cannot be sustained, and that his indebtedness must previously have been established by a judgment at law; and, when the property sought to be reached is in its nature subject to execution, a judgment creditor cannot assail an assignment or other transfer of property by the debtor as fraudulent as against creditors, until he either acquires a lien on the specific property or is in a situation to perfect a lien and subject the property to the satisfaction of his judgment on the removal of the obstacle presented by the fraudulent transfer.23 The attacking creditor must be one with a specific right

22. McElwain v. Willis, 9 Wend. (N. Y.) 548; Schofield v. Ute Coal, etc., Co., supra; Wadsworth v. Schisselbaur, 32 Minn. 84, 19 N. W. 390.

23. N. Y.-Whitney v. Davis, 148 N. Y. 256, 42 N. E. 661; Weaver v. Haviland, 142 N. Y. 534, 37 N. E. 641, 40 Am. St. Rep. 631; Karst v. Gane, 136 N. Y. 316, 32 N. E. 1073; Frothingham v. Hodenpyl, 135 N. Y. 630, 32 N. E. 240, a general creditor cannot attack another creditor's judg ment; Spelman v. Friedman, 130 N. Y. 421, 29 N. E. 765; Briggs v. Austin, 129 N. Y. 208, 29 N. E. 4; Tremaine v. Mortimer, 128 N. Y. 1, 27 N. E. 1060; Sullivan v. Miller, 106 N. Y. 635, 13 N. E. 772; Reynolds v. Ellis, 103 N. Y. 115, 8 N. E. 392, 57 Am. Rep. 701; McKinley v. Bowe, 97 N. Y. 93; Adsit v. Butler, 87 N. Y.

585; Sturges v. Vanderbilt, 73 N. Y. 384; Southard v. Benner, 72 N. Y. 424; Briggs v. Oliver, 68 N. Y. 336; Geery v. Geery, 63 N. Y. 252; Thompson v. Van Vechten, 27 N. Y. 568; Reubens v. Joel, 13 N. Y. 488; Robinson v. Stewart, 10 N. Y. 189; Voorhees v. Howard, 4 Keys, 371, 4 Abb. Dec. 503; Van Dewater v. Gear, 21 App. Div. 201, 47 N. Y. Supp. 503; Webster v. Lawrence, 47 Hun, 565; Burnett v. Gould, 27 Hun, 366; Mills v. Block, 30 Barb. 549; Cropsey v. McKinney, 30 Barb. 47; Frisbey v. Thayer, 25 Wend. 396. Compare Rocky Mountain Nat. Bank v. Bliss, 89 N. Y. 338, construing statutory provisions requiring a creditor of a corporation to first obtain judgment against it before suing the stockholders.

or equity in the property sought to be reached.24 It is not sufficient that a simple contract creditor, seeking to avoid his debtor's