40 allegation in the complaint that the grantor I was the owner in fee simple of the unincumbered title" is a sufficient allegation of ownership,39 and an allegation that the debtor executed a deed by which he pretended to convey the land in question sufficiently states the debtor's ownership of the property alleged to have been fraudulently conveyed, in the absence of a demurrer. But a complaint which contains no direct averment that the debtor, when the alleged fraudulent conveyance was made, had or claimed any interest in the land, is bad on demurrer." In an action by a creditor to cancel a deed executed by another than the debtor, and to subject the land conveyed, on the ground that the debtor owned the equitable title, it is not sufficient to allege such ownership, but the facts showing that the debtor is the equitable owner should be alleged. A complaint or bill in equity which seeks to set aside transfers of real estate, and apply the same to the debts of the transferrer, must definitely describe and identify the real estate sought to be reached." A bill is not demurrable as a whole for uncertainty of description, where part of the lands are sufficiently described." A complaint is deficient on demurrer where it describes the land only by numbers of the sections, townships, and ranges, without any reference to the state or county in which they are located or reference to any fixed monuments from which their location could be inferred.45 To create a lis pendens, operating as notice, the bill must be so definite in the description that any one read 42 ing it can learn thereby what property is intended to be made the subject of litigation." A complaint is defective which does not state whether the property is real, or personal, or both." A failure to allege the value of real estate, a conveyance of which it is sought to have set aside as fraudulent, does not render the complaint insufficient. 48 § 6. Nature and execution of conveyance.-The allegations of the complaint or bill should aver the fraudulent conveyance of the property in question by the debtor or by the holder of the legal title at his direction to the alleged grantee," or facts equivalent to an averment of a conveyance or transfer,50 and a complaint which avers that defendant furnished another the money with which to purchase the land, but fails to show that the land was conveyed to him in trust for defendant is insufficient. The complaint will be fatally defective unless it avers a delivery of the deed. An allegation that the debtor is still the owner of the property and that it is simply held "in trust for him" by the grantee is insufficient, in the absence of an allegation that the conveyance was made in trust for such judg ment debtor. But although there must be some description of the instrument by which the alleged fraudulent conveyance was accomplished, a copy of the deed, bill of sale, judgment, or other instrument need not be set out in the complaint or made an exhibit and filed with the complaint, the foundation or cause of the action being the fraud alleged and not the conveyance as 53 54 46. Miller v. Sherry, 2 Wall. (U. S.) 237, 17 L. Ed. 820. 47. Castle v. Bader, 23 Cal. 75. 48. Sherman v. Hogland, 73 Ind. 472. 49. Little v. Sterne, 125 Ala. 609, 27 So. 972; Smith v. Tate, 30 Ind. App. 367, 66 N. E. 88. 50. Floyd v. Floyd, 77 Ala. 353; Arzbacher v. Mayer, 53 Wis. 380, 10 N. W. 440. 51. Bright v. Bright, 132 Ind. 56, 31 N. E. 470. 52. Doerfler v. Schmidt, 64 Cal. 265, 30 Pac. 816. 53. Anderson v. Lindberg, 64 Minn. 476, 67 N. W. 538. 54. Allen v. Vestal, 60 Ind. 245, in an action by a creditor against the heirs of his deceased debtor the complaint must allege whether the conveyance was joint or several to the defendants. such. A complaint to set aside a fraudulent conveyance need not point out the particular features of or clauses objected to, where the vice of the instrument is inherent in its terms.5% If two or more conveyances are attacked as fraudulent in the bill or complaint, the facts and circumstances attending each conveyance need not be set forth as a separate cause of action, the fraudulent disposition of his property by the debtor constituting the sole cause of action.5 57 § 7. Insolvency of debtor or want of assets other than property conveyed.—In some jurisdictions a complaint, in an action to set aside a fraudulent conveyance, is bad, unless it alleges that the alleged fraudulent grantor was insolvent at the time of making the conveyance assailed, or did not retain sufficient property to pay his debts, or had no other property subject to execution at the time of the conveyance.58 In other jurisdictions it is not necessary to allege or prove the debtor's insolvency at 55. Heckelman v. Rupp, 85 Ind. 286; Stout v. Stout, 77 Ind. 537; Bray v. Hussey, 24 Ind. 228; Smith v. Summerfield, 108 N. C. 284, 12 S. E. 997. Compare Mahaney v. Lazier, 16 Md. 69. 56. Jessup v. Hulse, 29 Barb. (N. Y.) 539. 57. Armstrong v. Dunn, 143 Ind. 433, 41 N. E. 540; Strong v. Taylor School Tp., 79 Ind. 208; Mareton v. Dresen, 76 Wis. 418, 45 N. W. 110, and if stated as separate causes of action the court will look to the whole pleading as stating but one cause of action. 58. Cal.-Gray v. Brunold, 140 Cal. 615, 74 Pac. 303. Colo.-National Bank of Commerce v. Appel Clothing Co. (1905), 83 Pac. 965; Fox v. Lipe, 14 Colo. App. 258, 59 Pac. 850, or that the transfer tended to produce insolvency. Ill.-Merrill v. Johnson, 96 III. 224. Ky.-H. Krisch & Co. v. Kentucky Jeans Clothing Co. (1907), 102 S. W. 803. Ind.-Davis v. Chase, 159 Ind. 242, 64 N. E. 88, 853, 95 Am. St. Rep. 294; Slagle v. Hoover, 137 Ind. 314, 36 N. E. 1099; Noble v. Hines, 72 Ind. 12; Borror v. Carrier, 33 Ind. App. 353, 73 N. E. 123. Mo.-Rinehart v. Long, 95 Mo. V. Wineland, 61 Minn.-Seager v. Armstrong, 95 Minn. 414, 104 N. W. 479. 8. C.-Miller v. Hughes, 33 S. C. 530, 12 S. E. 419; State v. Foote, 27 S. C. 340, 3 S. E. 546. Wash.-Bates v. Drake, 28 Wash. 447, 68 Pac. 961; Cook v. Tibbals, 12 Wash. 207, 40 Pac. 935; O'Leary v. Duvall, 10 Wash. 666, 39 Pac. 163; Wagner v. Law, 3 Wash. 500. 59 60 the time he executed the conveyance, although such fact is ma terial as bearing upon the purpose of the conveyance. Where the complaint alleges that the debtor was wholly insolvent at the time of the transfer, this is equivalent to stating that he did not own property enough to pay his debts, and it is not necessary to also allege that he had no property subject to execution. If the facts alleged in the bill show that the debtor was insolvent, his insolvency need not be alleged in terms."1 In some jurisdictions the rule is maintained that it must be alleged in the bill or complaint not only that the grantor had at the time of the conveyance no other property subject to execution sufficient to satisfy the complainant's demand but also that he had no such property at the time of the commencement of the action. Hindrance or delay of creditors which amount to actual fraud, as well as a fraudulent purpose, must be alleged. An allegation that the debtor did not have at the time of the conveyance, and has not had since, up to the time of the commencement of the suit, sufficient property subject to execution to pay his debts, is a sufficient allegation of his insolvency. An allegation that 59. Crary v. Kurtz (Iowa, 1906), 105 N. W. 590; Ogden State Bank v. Barker, 12 Utah, 13, 40 Pac. 765. 60. Coal City Coal, etc., Co. v. Hazard Powder Co., 108 Ala. 218, 19 So. 392; Lammert v. Stockings, 27 Ind. App. 619, 61 N. E. 945; Grunsfeld v. Brownell (N. M. 1904), 76 Pac. 310. 61. Gassenheimer v. Kellogg, 121 Ala. 109, 23 So. 29. 62. Albertoli v. Branham, 80 Cal. 631, 22 Pac. 404, 13 Am. St. Rep. 200; Emery v. Yount, 7 Colo. 107, 1 Pac. 686; Burdsall v. Waggoner, 4 Colo. 256; Thomas v. Mackey, 3 Colo. 390; Van Sickle v. Shenk, 150 Ind. 413, 50 N. E. 381; Nevers v. Hack, 138 Ind. 260, 37 N. E. 791, 46 Am. St. Rep. 380; Crow v. Carver, 133 Ind. 63 62 260, 32 N. E. 569; Brumbaugh v. Richcreek, 127 Ind. 240, 26 N. E. 664, 22 Am. St. Rep. 649; and other earlier Indiana cases. In Indiana the same rule is applied in an action by the executor or administrator of a deceased grantor. Wilson v. Boone, 136 Ind. 142, 35 N. E. 1096. In an action by a creditor to set aside a fraudulent conveyance made by his deceased debtor it is sufficient to allege that he had no other property at the time he made the conveyance and that there are no "assets" in the hands of the administrator. State v. Parsons, 147 Ind. 579, 47 N. E. 17, 62 Am. St. Rep. 430; Bottorff v. Covert, 90 Ind. 508. 63. Pierce v. Hower, 142 Ind. 626, 42 N. E. 223; York v. Rockwood, 132 Ind. 358, 31 N. E. 1110. 64 65 66 the debtor had no real or personal estate liable to levy and sale, except the property conveyed, and that his property was wholly inadequate to satisfy his indebtedness sufficiently shows insolvency. It need not be alleged that the property in controversy was subject to execution. If it was not, that is a matter of defense. In many jurisdictions the insolvency of the grantor at the time of the commencement of the suit is held to be an essential allegation of a creditor's bill or complaint to invoke the aid of a court of equity to set aside a fraudulent conveyance," but this allegation is not necessary where the creditor has obtained a lien on the property transferred. The controlling inquiry is not as to the extent of the debtor's property when the conveyance was made, but at the time the action to set it aside. was begun. But this rule is held not to apply when it is averred that the conveyance was either voluntary or for an inadequate consideration, and rendered the debtor without means to pay his debts.69 When it is averred in the complaint that an execution has been issued upon the judgment against defendant and returned nulla bona, this implies insolvency and, if proved, 68 67 state that the debtor did not have other property subject to execution at the time of making the fraudulent deed. Clark v. Thias, 173 Mo. 628, 73 S. W. 616. Neb.-Dufrene v. Anderson, 67 Neb. 136, 93 N. W. 139. Contra.-Dawson Bank v. Harris, 84 N. C. 206; Gormley v. Potter, 29 Ohio St. 597; Westerman v. Westerman, 25 Ohio St. 500. 67. Wadsworth V. Schisselbauer, 32 Minn. 84, 19 N. W. 390. 68. Burlington Protestant Hospital Assoc. v. Gerlinger, 111 Iowa, 293, 82 N. W. 765; Rounds v. Green, 29 Minn. 139, 12 N. W. 454. 69. Beall v. Lehman-Durr Co., 110 Ala. 446, 18 So. 320; Dunklee v. Rose, 12 Colo. App. 420, 56 Pac. 348. |