Bowman v. Sherrill
59 Or. 603
Or.
1911
Check Treatment
Me. Justice McBride

delivered the opinion of the court.

1. Where a party, fraudulently conveying land, is insolvent or has been adjudged a bankrupt, the issuance of an execution is not necessary.

2, 3. We are satisfied from the testimony that both the conveyances were made or procured with intent to defraud creditors, and that Mrs. Sherrill did not contribute anything toward the purchase of either tract. Either of the defendants had a right to claim a homestead in the property on the Moore claim, and this right is not defeated by a conveyance from one to the other. A decree, such as is sought in this case, would operate practically as an execution, and we see no reason why this exemption should not be claimed and urged in this proceeding. The decree should be so modified as to provide that plaintiff should have a lien upon the tract in the Moore claim for the amount of the proved debts, subject to the right of *605defendants or either of them to occupy it as a homestead, with leave to apply to the court for an order of sale whenever it shall cease to be so occupied.

In all other respects the decree will be affirmed. Neither ■party will recover costs in this court. Modified.