2 Ind. 189 | Ind. | 1850
The State Bank of Indiana, Barton and Favorite, and one Ross, in May, 1845, filed a bill in chancery against Joshua Baker and the heirs at law of Allen Lupton, deceased. The bill alleged that the said bank, in August, 1841, recovered a judgment against one Benbridge and said Lupton for 305 dollars; that, in September, 1841,
The present bill further states that, at the February term, 1843, the Court decreed in said suit of Burrows and others, that said conveyances were fraudulent and void, and that the property conveyed should be subject to the judgments of the complainants in that suit. The present bill further states that there is, under said decree, a memorandum signed D. Mace, which memorandum alleges that said decree was set aside and discharged. The present bill further states that said Beribridge was, when said judgment against him and said Allen Lupton, was rendered, and has ever since continued to be, notoriously insolvent; that said conveyances were made to defraud the creditor of the grantor; that the now complainants are entitled to the benefits of said decree; that the debts for which the judgments in favor of the State Bank and in favor of Barton and Favorite were rendered, were in existence when said conveyances were executed; that the inventory and sale-bill show the personal assets of said decedent’s estate to be only about 137 dollars, except a certain note given by said Baker to the decedent, in consideration of said fraudulent sale, which note, by the understanding of the parties to it, was never to be paid. The present bill states in one place, that the debt for which Boss’s judgment was obtained was contracted after the execution of said conveyances, and, in another place, that such debt was in existence when said conveyances were executed. The prayer of this bill is, that the non-complainants may be decreed to have the benefit of said decree; that an account be taken of what is due to them; and, in default of payment thereof, said property be sold for the payment of the same; and for such other relief as may be equitable.
General demurrer to the bill and demurrer sustained.
By the decree mentioned in the bill, the conveyances were set aside as fraudulent and void. That was the only effect of the decree. It is true the decree declares
It appears from what we have said that the complainants in the present suit are entitled to the benefits of the decree referred to in their bill. That decree, however, is nothing more than this, that the conveyances in question are void as to all the decedent’s creditors. After the rendition of that decree, the creditors of the grantor had a right to proceed to the collection of their debts as if said conveyances had never been made. The present suit, therefore, so far as it prays to have the benefit of said decree, or to have the conveyances set aside, is useless, and, of course, not sustainable.
Another question in the cause is, whether the bill shows the complainants entitled to a decree for a sale of the property for the payment of their demands, without any inquiry as to the rights of other creditors? We do not think it does. Whilst a judgment-debtor is living and his property is subject to execution, (there being a fraudulent conveyance in the way,) the debt cannot be collected in chancery out of that property. The reason is, the creditor has a plain remedy at law. In the present case, however, the debtor is deceased, and administrators have been appointed to settle his estate. In England, and in some of our sister states, a creditor’s bill, after the debtor’s decease, will lie in chancery. The suit may be brought by a single creditor for his own debt, against the executors or administrators, but, unless assets are admitted, he only gets an order for payment in a due course
There is one other question, and that is, whether the complainants could claim, under the present bill, a decree for the administration of the estate, in chancery, of the deceased debtor. There is no doubt that the bill ought, as a creditor’s bill, to have made both the administrators defendants, and that it ought also to have stated that it was filed on behalf of the complainants and the other creditors; but whether these objections, or either of them, can be reached by general demurrer, needs not now be determined. The bill describes the debts due by said Allen Luplon to the complainants respectively; it alleges the decease of the debtor; it describes the property, real and personal, which was left by the decedent; it states who are his administrators and his heirs; and it makes the heirs and one of the administrators the defendants. The bill prays that the complainants may have the benefit of the decree mentioned in it; that an account be taken of what is due to the complainants; and that, in default of payment thereof, the property described be sold for the payment of the same; and for general relief. There is no special prayer for the administration of the estate under the direction of the Court of chancery. On
The following is a similar case, as to this matter, with the one before us. A creditor, claiming to have an equitable lien on a house and lot left by his deceased debtor, filed a bill which prayed that the premises might be sold, and the plaintiff be paid out of the proceeds, and for general relief. The bill was answered and proof taken. The Court said, “the notion that the plaintiff had an equitable lien upon the land because the note he indorsed was applied in part payment of the purchase-money, is entirely without foundation. Nor is the bill framed for an account of assets, or so as to entitle the plaintiff to proceed in this Court, as a creditor. The personal estate is the first and primary fund for the payment of debts, and the plaintiff ought to have resorted, at law, to that fund. He can only come here for an account and discovery of assets, and on the ground of a trust in the executor or administrator to pay debts. 3 Atk. 575. — 1 Sch. & Lef. 262. The bill was not intended for that purpose, but only to enforce a sale of the land, by reason of the supposed lien.” The Court concluded by saying, “with-
We are, therefore, of opinion, that the bill in this caso is insufficient on general demurrer.
The decree is affirmed.