their claims is not an action to enforce a trust, so as to prevent the application thereto of the statute of limitations, as the rule exempting trusts from the statute of limitations does not apply to a resulting trust in favor of creditors. Where a bill is filed by a judgment creditor to set aside a fraudulent conveyance, the statute cannot be interposed to the original debt." The time covered by the pending of a suit to set aside a deed as being in fraud of the rights of creditors is not to be taken into account cither to create a bar by limitation to such suit or to raise a presumption that the judgment in favor of the creditor on which the suit is founded is paid.50 The running of the statute against a cause of action to set aside a conveyance as fraudulent as to creditors is not interrupted by an appeal in a suit against the debtor in the original cause of action in favor of the creditor, where the appeal did not prevent the commencement of the action to set aside the conveyance. A suit in equity to set aside an assignment or conveyance of property made to hinder or delay creditors should ordinarily be brought within the same time after the right accrues as an action at law to recover possession of the same property."

52

51

8 79. Nature of action.-What period of limitation is to be applied to suits or proceedings for relief against fraudulent conveyances or transfers is sometimes determined by the nature or character of the action or proceeding in which the relief is sought. A distinction has been made in this respect where the

53

48. Stone v. Brown, 116 Ind. 78, 18 N. E. 392; Sims v. Gray, 93 Iowa, 38, 61 N. W. 171; Dole v. Wilson (Minn.), 40 N. W. 161; O'Neal v. Clymer (Tex. Civ. App. 1900), 61 S. W. 545.

49. Hickox v. Elliott, 22 Fed. 13, 10 Sawy. 415; Stoutz v. Huger, 107 Ala. 248, 18 So. 126.

50. St. Francis Mill Co. v. Sugg, 169 Mo. 130, 69 S. W. 359.

51. State v. Osborn, 143 Ind. 671, 42 N. E. 921.

Suspension of running of statute by non-residence of grantee. -Applegate v. Applegate, 107 Iowa, 312, 78 N. W. 34.

52. Hickox v. Elliott, 22 Fed. 13, 10 Sawy. 415; McDowell v. Goldsmith, 2 Md. Ch. 370. Compare Greenman v. Greenman, 107 Ill. 404.

53. Eve v. Louis, 91 Ind. 457; Succession of Baum, 11 Rob. (La.) 314.

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relief was sought in an action to quiet title or to remove a cloud from the complainant's title.54 An action to subject land conveyed in fraud of creditors to the payment of their claims is not an action to enforce a trust, so as to prevent the application thereto of the statute of limitations, but is one for "relief on the ground of fraud," and must therefore be brought within the statutory period after the fraud has been discovered.55 The attack of a transfer to a married woman as a fraudulent preference over the husband's creditors,56 or opposition in concurso to a creditor's mortgage from the insolvent as in fraud of other creditors," is in the nature of a suit to annul it, and is barred by the statute as to revocatory actions. Where a judgment creditor proceeds to sell the property under execution, leaving the validity of the transfer to be determined in an action by the purchaser at such sale to recover possession of the land, such action not being one to set aside the deed for fraud, the statute of limitations relating to fraudulent transfers does not apply. But where it appears, either from the pleadings, or from the evidence in cases where the pleadings do not show the source of title and there is no opportunity to plead the statutes, that the statutory period has elapsed after the discovery of the fraud before the commencement of the action to have a transfer set aside as fraudulent, the right is barred by limitations, which cannot be avoided by bringing ejectment, instead of an action to remove the cloud.59

§ 80. Accrual of right of action. In many jurisdictions the rule is either prescribed by statute or maintained by the courts that the cause of action for relief against a fraudulent transfer shall not be deemed to have accrued for the purpose of the run

54. Goodnow v. Parker, 112 Cal. 437, 44 Pac. 738; Stewart v. Thompson, 32 Cal. 260; Eve v. Louis, 91 Ind. 457.

55. Sims v. Gray, 93 Iowa, 38, 61 N. W. 171.

56. Renshaw v. Dowty, 39 La. Ann. 608, 2 So. 58.

57. Avart v. His Creditors, 8 Mart. N. S. (La.) 528.

58. Amaker v. New, 33 S. C. 28, 11 S. E. 386.

59. Brasie v. Minneapolis Brewing Co., 87 Minn. 456. 92 N. W. 340, 94 Am. St. Rep. 709, 67 L. R. A. 865.

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ning of the statute of limitations until the discovery of the facts constituting the fraud, and this, although the plaintiff's right of action is otherwise perfect at the time.61 The courts in some jurisdictions hold that the statute begins to run from the time that the creditor by reasonable diligence might have discovered the fraud and that the fraud is to be considered to have been discovered when the creditor is in possession of sufficient facts to put a person of ordinary intelligence and prudence on inquiry, which, if pursued, would lead to the discovery of the fraud. The burden of alleging and proving the non-discovery of the fraud is held to be upon the party seeking relief." The statute in some jurisdictions begins to run from the time the fraudulent transfer was made." In some jurisdictions a fraudulent conveyance of real estate is conclusively presumed to be discovered when the fraudulent conveyance is filed for record.

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60. N. Y.-Decker v. Decker, 108 N. Y. 128, 15 N. E. 307.

U. S.-Farrar v. Bernheim, 75 Fed. 136, 21 C. C. A. 264; Sheldon v. Keokuk Northern Line Packet Co., 8 Fed. 769, 10 Biss. 470, under Wisconsin statute.

Ky.-Cavanaugh v. Britt, 90 Ky. 273, 13 S. W. 922, 12 Ky. L. Rep. 204; Phillips v. Shipp, 81 Ky. 436; Green v. Salmon, 23 Ky. L. Rep. 517, 63 S. W. 270; Poynter v. Mallory, 20 Ky. L. Rep. 284, 45 S. W. 1042.

Minn.-Brasie v. Minneapolis Brewing Co., 87 Minn. 456, 92 N. W. 340, 94 Am. St. Rep. 709, 67 L. R. A. 865; Duxbury v. Boice, 70 Minn. 113, 72 N. W. 838.

Miss.-Abbey v. Commercial Bank, 31 Miss. 434.

Neb.-Gillespie v. Cooper, 36 Neb. 775, 55 N. W. 302.

Ohio.-Stivens v. Summers, 68 Ohio St. 421, 67 N. E. 884; Boies v. Johnson, 25 Ohio Cir. Ct. 331.

Tex.-Calhoun v. Burton, 64 Tex.

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510; Vodrie v. Tynan (Civ. App. 1900), 57 S. W. 680.

61. Weaver v. Haviland, 142 N. Y. 534, 37 N. E. 641, 40 Am. St. Rep. 631, aff'g 68 Hun, 376, 22 N. Y. Supp. 1012; Decker v. Decker, supra.

62. Kan.-Donaldson v. Jacobitz, 67 Kan. 244, 72 Pac. 846.

Ky. Phillips v. Shipp, 81 Ky. 436.

Minn.-Duxbury v. Boise, supra. Miss.-Gordon v. Anderson (1907), 44 So. 67.

Neb.-Gillespie v. Cooper, supra. Tex.-Calhoun v. Burton, supra; Vodrie v. Tynan, supra.

63. Brown v. Brown, 91 Ky. 639, 11 S. W. 4; Duxbury v. Boice, supra; Combs v. Watson, 32 Ohio St. 228; Boies v. Johnson, supra.

64. State v. Osborn, 143 Ind. 671, 42 N. E. 921; Himan v. Thorn, 32 W. Va. 507, 9 S. E. 930; Hunter v. Hunter, 10 W. Va. 321.

65. Iowa.-Brook v. Jones (1900), 82 N. W. 434; Nash v. Stevens, 96

In other jurisdictions mere constructive notice of the conveyance by reason of its being filed for record is not notice of the facts and circumstances which render it fraudulent within the meaning of statutes declaring that the cause of action shall not be deemed to have accrued until the discovery of the facts constituting the fraud." In Louisiana the courts make a distinction between the time of the accrual of an action for relief against undue preferences and actions for relief against fraudulent transfers generally."

81. Prior establishment of creditor's claim.-In some jurisdictions the statute of limitations does not begin to run against the right of a creditor to bring an action in the nature of a creditor's bill to set aside a conveyance or transfer, fraudulent as against creditors, and to subject to the payment of his claim the land alleged to have been so conveyed, until the recovery of judgment by such creditor and the return of execution unsatisfied, the time when the creditor has placed himself in a position to assail the conveyance and not the time when the fraud was committed being the period from which the limitation is to be computed," and this, without reference to the creditor's

Iowa, 616; 65 N. W. 825; Sims v.
Gray, 93 Iowa, 38, 61 N. W. 171.

Kan.-Donaldson v. Jacobitz, 67 Kan. 244, 72 Pac. 846, the statute runs from the time the deed was recorded where the creditor knew of the execution of deed when it was made.

Ky.-Poynter v. Mallory, 20 Ky. L. Rep. 284, 45 S. W. 1042; Cockrill v. Cockrill, 13 Ky. L. Rep. 10, 15 S. W. 1119, the statute runs from the time the deed was recorded where the creditor might by reasonable diligence have discovered the deed at any time after it was recorded. Compare Ward v. Thomas, 81 Ky. 452.

Mo.-Rogers v. Brown, 61 Mo. 187. Neb.-Gillespie v. Cooper, 36 Neb. 775, 55 N. W. 302.

Va.-Vashon v. Barrett, 99 Va. 344, 38 S. E. 200.

66. Rose v. Dunkles, 12 Colo. App. 403, 56 Pac. 342; Duxbury v. Boies, 70 Minn. 113, 72 N. W. 838; Stivens v. Summers, 68 Ohio St. 421, 67 N. E. 884.

67. Planter's Bank v. Watson, 9 Rob. (La.) 267; Hill v. Barlow, 6 Rob. (La.) 142; Prats v. His Creditors, 5 Rob. (La.) 288.

68. N. Y.-Weaver v. Haviland, 142 N. Y. 534, 37 N. E. 641, 40 Am. St. Rep. 631; aff'g 68 Hun, 376, 22 N. Y. Supp. 1012; Gates v. Andrews, 37 N. Y. 657, 99 Am. Dec. 764: Renaud v. O'Brien, 35 N. Y. 99, rev'g 25 How. Pr. 67, action may be brought although the period allowed for the

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knowledge of the fraud. But it has been held that since a creditor is not limited to a creditor's bill in order to obtain relief from a fraudulent conveyance, but may attach the property, the statute of limitations begins to run against the creditor from the time the right of action accrued by the discovery of the fraud, whether the creditor's claim has been reduced to judgment or not. And the running of limitations in an action to subject property fraudulently conveyed cannot be indefinitely postponed by the delay of the creditor in reducing his claim to judgment, where the statute does not begin to run until the creditor's claim has been reduced to judgment." Though the statute of limitations does not run against an action to set aside a fraudulent conveyance until the creditor has obtained judgment on his claim, if he fails to put his claim in judgment for a long period of time, having notice during that time of the conveyance, his right of action is barred by his laches.72

return of execution has not expired.

Cal.-Watkins v. Wilhoit (1894), 35 Pac. 646. See also Chalmers v. Sheehy, 132 Cal. 459, 64 Pac. 709, 84 Am. St. Rep. 62.

Colo.-Rose v. Dunklee, 12 Colo. App. 403, 56 Pac. 342.

Iowa.-Mickel V. Walraven, 92 Iowa, 423, 60 N. W. 633.

Kan.-Donaldson v. Jacobitz, 67 Kan. 244; Taylor v. Lander, 61 Kan. 588, 60 Pac. 320.

Mich.-Daniel V. Palmer, 124 Mich. 335, 82 N. W. 1067.

Minn.-Rounds v. Green, 29 Minn. 139, 12 N. W. 454, the statute does not begin to run until the judgment is docketed.

Mont.-Finch v. Kent, 24 Mont. 268, 61 Pac. 653.

Neb.-Ainsworth v. Roubal (1905), 105 N. W. 248.

Tenn.-See Howell v. Thompson, 95 Tenn. 396, 32 S. W. 309, the right of action accrues as soon as the original debt becomes due, its reduction to judgment being unnecessary.

The same rule is applied to transfers assailed as voluntary. -National Bank v. Kinard, 28 S. C. 101, 5 S. E. 464; Suber v. Chandler, 18 S. C. 526, overruling McGowan v. Hitt, 16 S. C. 602. See also Richardson v. Mounce, 19 S. C. 477.

69. Weaver v. Haviland, 142 N. Y.

534.

70. Rogers v. Brown, 61 Mo. 187; Gillespie v. Cooper, 36 Neb. 775, 55 N. W. 302. Compare Rose v. Dunklee, 12 Colo. App. 403, 56 Pac. 342.

71. Stubblefield v. Gadd, 112 Iowa, 681, 84 N. W. 917; Donaldson v. Jacobitz, 67 Kan. 244, 72 Pac. 846; First Nat. Bank v. King, 60 Kan. 733, 57 Pac. 952; Vodrie v. Tynan (Tex. Civ. App. 1900), 57 S. W. 680.

72. Mickel v. Walraven, 92 Iowa, 423, 60 N. W. 633.