10 Mo. App. 121 | Mo. Ct. App. | 1881
delivered the opinion of the court.
This is a suit in equity to set aside an alleged fraudulent conveyance of real estate situated in St. Louis, Missouri. The plaintiffs have not reduced their demand to a judgment
It is elementary doctrine that a court of equity will not entertain a creditor’s bill to set aside a fraudulent conveyance unless the creditor has either prosecuted his demand to a judgment at law, or shows that it is impossible for him to do so. We shall not go into the learning on this subject, of which there is a great accumulation, reaching back more than a hundred years, because the subject has been thoroughly considered by the Supreme Court of this State (Martin v. Michael, 23 Mo. 50; Merry v. Fremon, 44 Mo. 518; Alnutt v. Leper, 48 Mo. 319; Turner v. Adams, 46 Mo. 95; Pendleton v. Perkins, 49 Mo. 565); and also by this court (Luthy v. Woods, 1 Mo. App. 167; Kent v. Curtis, 4 Mo. App. 121). It is true that the lien of a judgment is not necessary, though that is an usual incident of a judgment. Merry v. Fremon, 44 Mo. 518; Alnutt v. Leper, 48 Mo. 319. Neither is it always necessary that an execution should be sued out, and that it should be returned nulla bona. Turner v. Adams, 46 Mo. 95.
But no decision in this State goes to the length of holding that, where the demand of the creditor is purely a legal demand, and the debtor has visible property within the jurisdiction, which may be reached by attachment, the mere
If it is objected that the rule which requires the creditor to resort to an attachment, in cases such as this, before he can have the aid of equity, drives him to a useless circuity of action, the answer is, that the same objection may be made in all cases to the well-established rule, that equity will not aid a party until he has exhausted his remedies at law.
I cannot refrain from expressing my sympathy with the efforts which are frequently made to extend the jurisdiction of the courts in this particular; but I cannot allow this sympathy to control my conclusions as a judge. We sit here to administer the law as we understand it to exist, not as we wish it to be. We all agree that we cannot go any further in extending equitable remedies to general creditors than this court went in Luthy v. Woods, and that if any further extension of this jurisdiction is to be made, it should be made by the Supreme Court, or by the Legislature.
The judgment is reversed and the petition dismissed.