46

tained judgment does not bar his remedy under the statute.15 In some states, under statutes which confer upon a court both legal and equitable jurisdiction, it has been held that a creditor may obtain judgment for his debt and in the same suit may have that judgment enforced against property fraudulently conveyed by the debtor with intent to hinder and delay creditors, and that consequently judgment and execution are no longer necessary prerequities to an action to reach property so conveyed." The remedies in the federal courts, at law and in equity, are not, however, according to the practice of the state courts, but according to the principles of common law and equity, and a federal court has no jurisdiction of a suit in equity in which a claim only cognizable at law is united with a claim for equitable relief." Neither can a suit in equity to set aside and vacate a fraudulent conveyance and subject the property of a debtor to the payment of a debt be maintained in a federal court by a simple contract creditor before proceedings at law to establish and enforce it.48 And in the federal courts the right to trial by jury secured by the constitution cannot be impaired by blending with a claim cognizable at law a demand for equitable relief."

§ 34. Sufficiency of judgment generally.-Holders of judg ments which are void for want of jurisdiction are not judgment creditors, and cannot attack conveyances, made by their debtors as fraudulent.50 And a creditor after reversal of his judgment and before he has recovered judgment on the second trial is

45. Roselle v. Klein, 42 App. Div. (N. Y.) 316, 59 N. Y. Supp. 94.

46. Kruger v. Walker, 111 Ga. 383, 36 S. E. 794; Delacy v. Hurst, 83 Ga. 223, 9 S. E. 1052; Lindley v. Cross, 31 Ind. 106, 99 Am. Dec. 610; Harker v. Glidewell, 23 Ind. 219; Dawson Bank v. Harris, 84 N. C. 206.

47. Scott v. Neely, 140 U. S. 106, 11 Sup. Ct. 712, 35 L. Ed. 358.

48. Cates v. Allen, 149 U. S. 451,

13 Sup. Ct. 883, 977, 37 L. Ed. 804; Scott v. Neely, supra.

49. Sommer v. New York Elev. R. Co., 14 N. Y. Supp. 619, 38 St. Rep. (N. Y.) 419; Scott v. Neely, supra.

50. Epstein v. Ferst, 35 Fla. 498. 17 So. 414; Miller v. Babcock, 29 Mich. 526. See Nugent v. Nugent, 70 Mich. 52, 37 N. W. 706, as to necessity for strict compliance with statutory requirements in order to secure judgment in attachment upon which a creditors' bill may be based.

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merely a creditor at large. Where all the requirements of the statute have been substantially complied with a merely formal defect in the judgment is not sufficient to deprive a creditor of his right as an execution creditor to assail a fraudulent conveyance, or to sustain an objection that he has not exhausted his remedy at law.52 A confession of judgment, although defective in form, or upon a statement insufficient or not as full and explicit as the statute requires, but for a bona fide debt, will uphold a suit to impeach a fraudulent conveyance. A judgment rendered in an attachment proceeding, although obtained on service by publication and not a personal judgment,54 is sufficient upon which to base a bill in equity to set aside a fraudulent conveyance of the attached property."

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53

8 35. Effect of foreign judgment.-A creditor under a judgment of another state or jurisdiction cannot maintain an action or bill in equity to set aside a conveyance of his debtor as fraudulent. A foreign judgment can no more constitute a basis for the ordinary creditors' action than the general indebtedness itself. It is a mere evidence of indebtedness like a simple contract until it is made a judgment of the local court.56 The re

51. North Hudson Mut. Bldg., etc., Assoc. v. Childs, 86 Wis. 292, 56 N. W. 870.

52. Produce Bank v. Morton, 67 N. Y. 199; King v. Baer, 31 Misc. Rep. (N. Y.) 308, 64 N. Y. Supp. 228; Hiler v. Hetterick, 5 Daly (N. Y.), 33.

53. St. John Wood Working Co. v. Smith, 82 App. Div. (N. Y.) 348, 82 N. Y. Supp. 1025, aff'd 178 N. Y. 629, 71 N. E. 1139, the absence of an affidavit of the authority of defendant's attorney is a niere irregularity; Neusbaum v. Keim, 24 N. Y. 325; Robinson v. Hawley, 45 App. Div. (N. Y.) 287, 61 N. Y. Supp. 138; Merry v. Fremon, 44 Mo. 518.

54. Parmenter v. Lomox, 68 Kan. 61, 74 Pac. 634.

55. Getzler v. 'Saroni, 18 Ill. 511. 56. N. Y.-Patchen v. Rofkar, 12 App. Div. 475, 42 N. Y. Supp. 35; Davis v. Bruns, 23 Hun, 648; Tarbell v. Griggs, 3 Paige, 207; 23 Am. Dec. 790; McCartney v. Bostwick, 31 Barb. 390, plaintiff must first sue upon such judgment, and receive a new judgment and issue an execution thereon, and have it returned unsatisfied, and thus establish the fact that he has exhausted his remedy at law.

Cal.-Brown v. Campbell, 100 Cal. 635, 35 Pac. 433, 38 Am. St. Rep. 314.

P

covery of a judgment in a federal court, and the return of an execution issued therein unsatisfied, is not sufficient to authorize a creditor to maintain suit in a state court to set aside an alleged fraudulent conveyance. The creditor must first have exhausted his remedy by action in a state court,57 but a creditor's bill may be maintained in the United States circuit court upon a state court judgment.58 A judgment rendered against the administrator of a deceased person in one state is not evidence of indebtedness or a judgment in rem so as to sustain a bill by the creditor in another state to set aside a conveyance by the decedent of property in that state.59

$ 36. Effect of judgment of justice of the peace.-In many jurisdictions a judgment creditor must have a specific lien upon property liable to sale on execution or be in a position to perfect a lien thereon, in order to maintain an action in the nature of a creditor's bill to set aside a conveyance thereof or remove fraudulent incumbrances therefrom,60 and, therefore, it is held that such an action cannot be sustained upon a judgment rendered before a justice of the peace, where the only execution returned was issued by the justice," unless the property sought

Ill.-Winslow v. Leland, 128 Ill. 304, 21 N. E. 588; Steere v. Hoagland, 39 Ill. 264.

Iowa.-Buchanan V. Marsh, 17 Iowa, 494.

Miss.-Berryman v. Sullivan, 21 Miss. 65; Farned v. Harris, 19 Miss. 366.

Mo.-Crim v. Walker, 79 Mo. 335. N. J.-Guy B. Waite Co. v. Otto (Ch.), 54 Atl. 425; Mechanics', etc., Transp. Co. v. Borland, 53 N. J. Eq. 282, 31 Atl. 272; Davis v. Dean, 26 N. J. Eq. 436.

S. C.-King v. Clarke, 2 Hill Eq. 611. 57. Davis v. Bruns, 23 Hun (N. Y.), 648; Tompkins v. Parcell, 12 Hun (N. Y.), 662; Tarbell v. Griggs,

3 Paige (N. Y.), 207, 23 Am. Dec. 790; Steere v. Hoagland, 39 Ill. 264. Contra.-Brown v. Bates, 10 Ala. 432; Bullitt v. Taylor, 34 Miss. 708. 58. Wilkinson v. Yale, 29 Fed. Cas. No. 17,678, 6 McLean, 16.

59. Johnson v. Powers, 139 U. S. 156, 11 Sup. Ct. 525, 35 L. Ed. 112; McLean v. Meek, 18 How. Pr. (U. S.) 16, 15 L. Ed. 277; Aspden v. Nixon, 4 How. (U. S.) 467, 11 L. Ed. 1059; King v. Clarke, 2 Hill Eq. (S. C.) 611.

60. Crippen v. Hudson, 13 N. Y. 161; Peterson v. Gittings, 107 Iowa, 306, 77 N. W. 1056. See § 54, infra. 61. Crippen v. Hudson, supra ; Swayze v. Swayze, 9 N. J. Eq. 273.

is personal property on which there is a lien by reason of the levy of execution.62 The judgment must first have been docketed in a court of record so as to become a lien upon real estate, and an execution against both the real and personal property of the debtor returned unsatisfied. Until so docketed the creditor has not exhausted his legal remedies, but when so docketed the judgment creditor becomes as much entitled to the aid of a court of equity as though the judgment was originally recovered in a court of record. But a justice's judgment has been held sufficient where the property sought to be reached is equitable and no lien upon it can be created in any event, and also where the judgment is large enough to confer jurisdiction on the court of chancery. In some instances the statute permits an action to be based upon the judgment of a justice of the peace."

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37. Effect of having acquired lien by attachment.-In many jurisdictions an attaching creditor need not reduce his claim to judgment before filing a creditor's bill to reach assets of his debtor which have been transferred in fraud of creditors, the lien by attachment being sufficient. The writ of attachment, it is claimed, accomplishes all that an execution under a judgment

62. Bailey v. Burton, 8 Wend. (N. Y.) 339.

63. Crippen v. Hudson, supra; State Ins. Co. v. Prestage, 116 Iowa, 466, 90 N. W. 62, justice's judgment not sufficient where the land sought to be subjected is located in another county.

64. Peterson v. Gittings, 107 Iowa, 306, 77 N. W. 1056.

65. Ballentine v. Beall, 4 Ill. 203. 66. Steere v. Hoagland, 39 Ill. 364.

67. Newdigate v. Jacobs, 39 Ky. 17; Heiatt v. Barnes, 35 Ky. 219.

68. Iowa.-Taylor v. Branscombe, 74 Iowa, 534, 38 N. W. 400.

Ky.-Martz v. Pfeifer, 80 Ky. 600.

Miss.-Cogburn V. Pollock, 54 Miss. 639.

N. H.-Perham v. Haverhill Fiber Co., 64 N. H. 2, 3 Atl. 312; Stone v. Anderson, 26 N. H. 506; Kittredge v. Warren, 14 N. H. 509; Tappan v. Evans, 11 N. H. 311. Compare Dodge v. Griswold, 8 N. H. 425.

N. J.-Francis v. Lawrence, 48 N. J. Eq. 508, 22 Atl. 259; Cocks v. Varney, 45 N. J. Eq. 72, 17 Atl. 108; Curry v. Glass, 25 N. J. Eq. 108, the statutory affidavit is sufficient to create the lien on the property attached essential to the maintenance of the bill; Robert v. Hodges, 16 N. J. Eq. 299; Williams v. Michenor, 11 N. J. Eq. 520.

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does, since it enables the creditor to acquire a lien for the security of his claim by a levy made before instead of after the entry of judgment. The issuing and return of an execution is proof that the creditor has exhausted his legal remedy and an attachment serves the same purpose." In some states the statutes are construed to authorize the rule above stated. In other jurisdictions the rule is maintained that the attachment creditor, assuming to litigate the good faith of his debtor's conveyance, must have his right settled by reducing his demand to judgment before he can resort to equity to assail the fraudulent conveyance."1 The reasons upon which this rule is based are that, although tho attachment is a specific lien, it is a lien of uncertain and contingent tenure, as it may be defeated by dissolution on motion

Or.-Bennett v. Minott, 28 Or. 339, 39 Pac. 997, 44 Pac. 288; Dawson v. Sims, 14 Or. 561, 13 P. C. 506.

Wash.-Benham v. Ham, 5 Wash. 128, 31 Pac. 459, 34 Am. St. Rep. 851; Meacham Arms Co. v. Swartz, 2 Wash. Terr. 412, 7 Pac. 859.

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Wis.-Breslauer v. Geilfuss, Wis. 377, 27 N. W. 47, as to the right of an attaching creditor to intervene to prevent the sheriff from paying over the proceeds of a sale under an alleged fraudulent judgment.

69. Francis v. Lawrence, supra; Dawson v. Sims, supra.

70. Martz v. Pfeifer, 80 Ky. 600; Davidson v. Dockery, 179 Mo. 687, 78 S. W. 624; Hahn v. Salmon, 20 Fed. 801, Oregon statute; Fleischner v. First Nat. Bank, 36 Oreg. 553, 54 Pac. 884, 60 Pac. 603, 61 Pac. 345; Evans v. Laughton, 69 Wis. 138, 33 N. W. 573.

71. N. Y.-Whitney v. Davis, 148 N. Y. 256, 42 N. E. 661; Bowe v. Arnold, 31 Hun, 256; Bentley v. Goodwin, 38 Barb. 633, none but a judgment creditor can impeach the bona fides of a judgment confessed by a

debtor to a third person, and an attaching creditor, whose attachment was levied after such confession, cannot do so; Hall v. Stryker, 29 Barb. 105, rev'd on other grounds 27 N. Y. 596.

Cal.-Aigeltinger v. Einstein, 143 Cal. 609, 77 Pac. 669, 101 Am. St. Rep. 131; McMinn v. Whelan, 27 Cal. 300.

Ill.-Bigelow v. Andress, 31 Ill.

322.

Kan.-Tennent v. Battey, 18 Kan.

324.

Me.-Griffin v. Nitcher, 57 Me. 270, attachment must be followed by judgment.

Mo.-Turner v. Adams, 46 Mo. 95; Martin v. McMichael, 23 Mo. 50, 66 Am. Dec. 656; Greene County Bank v. Epperson, 74 Mo. App. 10. Neb. Ainsworth V. Roubal (1905), 105 N. Y. 248; Weinland v. Cochran, 9 Neb. 480, 4 N. W. 67; Weil v. Lankins, 3 Neb. 384. Compare Fairbanks v. Welshans, 55 Neb. 362, 57 N. W. 865.

Can.-Whiting V. Laurason, 7 Grant Ch. (U. C.) 603.