delivered the opinion of the court.
John Hagan & Co. filed their bill in the District Court of the United States for the Northern District of Alabama, in which they state that, in the year 1834, they recovered a judgment at law in that court against Leroy Pope, for upwards of seven thousand dollars, which is wholly unsatisfied; that a writ of fieri facias, running against the lands, goods, and body of the debtor, was regularly issued, and, on the' 10th day of October, 1834, was returned nullá bona; and from that time to the filing of the bill, there has not been,' in that district or elsewhere, any. property of Leroy Pope out of which the judgment-debt could be. collected, except certain property afterwards mentioned. The bill further alleges that, about a month before the complainants recovered their judgment at law, Leroy Pope, intend? ing to defraud the complainants, and to .hinder them from obtaining payment, made conveyances, both of real and personal estáte, to a large amount, to his son, William PI. Pope, who was a party to the fraud, and is made a defendant in the bill; that Leroy Pope died in the year 1844, and Samuel Breck, who was appointed his administrator, is also a party defendant. The complainants are averred to be citizens of Louisiana, and William-H. Pope and the administrator citizens Of Alabama. The defendants having demurred to the bill, it was dismissed by the District Court, and the complainant, who is the surviving partner, appealed to this court.
•The principal ground upon which the demurrer has been rested.in this court is, that the bill does not show that the complainants are entitled to equitable relief. The- argument is, that the jurisdiction of a court of equity, to aid a judgment-creditor, *33 by remqving a fraudulent encumbrance on the property of his debtor, is ancillary merely; that this aid is not given unless the creditor' has obtained a lien at law upon the specific property sought for, if that be legal property upon which. an execution could be levied; or if it be equitable assets, not liable to a levy by execution; that the creditor must have exhausted his legal remedy, by á return of nulla bona, on his execution, and must also be in a condition to proceed at once at law to enforce his right, if the obstacle should be remo.ved. ' That if his judgment has become ineffectual to entitle him to an execution, so that he could not levy, even if the assets were legal, and not subject to any fraudulent encumbrance, equity will not exert itself to subject equitable property to the payment of his judgment. And it is further argued, that, according to the local law of Alabama, governing these proceedings at law, the judgment-creditors had lost their lien on the personal estate of the.debtor, because they had suffered more thari one- term to elapse without, issuing an alias execution; and upon the real- estate, because more than ten years elapsed after t£e return of their last execution, and before this bill was filed; and that the lien, both upon the- personal and real estate, was destroyed by the death of Leroy Pope, which suspended the. right to issue an execution. That, by reason of his death and the lapse'of more thari.ten years, the right to issue an execution being suspended, equity would not subject equitable assets to the payment of this judgment.
It does riot distinctly appear whether the property sought to be reached by this bill is. equitable or legal. There is reason to suppose, from some allegations in the bill, that' a part or the whole of the • property was conveyed by Leroy Pope, in 1831, to Louis McLane, as Secretary of the, Treasury, to secure a debt due to the United States by a deed of trust, and this conveyance is not impeached. If it embraced the whole or any part of the property now in question, only an equitable estate therein was left in Leroy Pope. ' The bill is not distinct in its allegations on this subject; but we do not deem it necessary that it should be; because we are of opinion that this case, is not to be treated as an application by a judgment-creditor for the exercise of the-ancillary jurisdiction of 'the court, to aid him in executing legal process, but comes under a head of original jurisdiction in equity. It is a bill bj a creditor of a deceased debtor, against the administrator and a party who is fraudulently holding all'the property of the deceased, which in equity should be applied to the payment of this debt., , and the bill prays that the debt may be paid out of this fund. That a single creditor may maintain a bjll against an administrator of a décéased
*34
debtor, for a discovery of assets and the payment of his debt, there can be no doubt. That, in some cases, he may join with the administrator a third person, who is in possession of property which is amenable to the payment of the debt, is also clear. The instances in which it'has been actually held that such third person might be joined, are chiefly cases of collusion between the administrator and the third person possessed of assets, insolvency of the administrator, and where the third-'person was the surviving' partner of the deceased. Utterson
v.
Mair,
2
Ves. Jr. 95; Alsager v. Rowley, 6 Ves. 748; Burroughs
v.
Elton, 11 Ves. 29; Gedge
v.
Traill, 1 Russ. & M. 281; Long
v.
Majestre,
For, while it is generally agreed that some special case must be made, it is also declared in all the cases, that what is to constitute it has not been limited by any precise and rigid rule. In Holland v. Prior, (1 My. &. K. 240,) Lord Brougham applied the rule to the case of a representative of a deceased representative, without any suggestion of collusion between him and the present representative.' In Simpson v. Vaughn, (2 Atk. 33,) Lord Hardwicke said-.: “ It. has been said at the bar, that .you may make any person a defendant that you apprehend has pdssessed himself- of assets upon which you have a lien. But this certainly cannot be laid' down as a general rule;' for it -would- be of dangerous consequence to insist that you can make any-person a defendant who has assets, unless you can Show to the- court he denies that he has assets, or applies them improperly.” Considering, then, that some special and sufficient reasons must be-shown'for proceeding against a third person, jointly with the administrator, the inquiry is, -whether this bill does not contain those reasons ; and. wc are of opinion it does.
It appears, from the statements in the bill, that William H. Pope is in possession, of all the assets of the deceased debtor, both real and personal, holding.-them under conveyances made to him by the. deceased, absolute, in form, but accompanied by secret trusts in favor of the- grantor, designed to defraud this particular -creditor, .and prevent him from obtaining payment of his" judgment, and that this fraudulent design has .thus far been successfully executed.
Now these conveyances are not only valid on their face, but they are really valid as bétween the parties;' and though they are void as against creditors., and the property., both at law and in equity, is subj.ect to the payment of the debts of the deceased, yet ihe embarrassments attending any attempt by the
*35
administrator to- possess'himself even of that part , of these assets,, v/hich were personalty, at law would certainly be great, and perhaps insuperable.
2
Rand. Rep. 384; Martin v. Root,
In this view, of the case, it is not essential that the creditor cannot.proceed at law until after a revival of the judgment by a .scire facias. In Burroughs v. Elton, (11 Ves. 36 - 7,) Lord Eldon had occasion to consider the force of this objection in a similar case. -It was a bill to, reach real assets-in.the hands of a surviving partner. The complainant’s'judgment was upwards of seventeen years old, and no step had been taken to revive it against the administrator or' the heir. His decision, in accordance with two previous cases to which he refers, was, that such, a creditor could’ sustain the bill, though it might be necessaiy to direct him to proceed at law to revive' his judgment.
*36 It has been argued, that the bill does not show that' there are not other assets in the hands of the. administrator sufficient tp pay this -debt, and contains no allegation that the administrator was ever requested to pay it. But the bill does expressly aver, that, aside from the property fraudulently conveyed, there is not, any where, any property of Leroy Pope, out of which the debt could be collected; and, although it states that the fraudulent grantor and grantee both remained in possession, and took the crops jointly, and-that these crops were of great value, yet, inasmuch as between themselves the'crops belonged to the grantee, and as it was the object of the conveyances to prevent therii from being applied to the benefit of creditors, we are of opinion, there is no presumption that any thing arising from this joint possession ever came to the hands of the administrator, and, therefore, that a demand on him would have been a vain act, which the creditor Avas not compelled to do.
One other ground on which the demurrer has been rested, requires noticé. The bill alleges that, after the fraudulent conveyances to William H. Pope had been made, he mortgaged the property to Virgil Maxcy, as Solicitor of the Treasury of the United States, to secure the debt of Leroy Pope which William H. Pope assumed to pay, and it avers that this debt has been in part paid by means described in the bill. Virgil Maxcy and, subsequently when he went out of office, his successor, Charles B. Penrose, were named as parties to the bill,' but they were out of the jurisdiction, no process was served on either of them, and neither ever appeared or answered. The bill prays that William H. Pope may.be compelled to pay to the United States the balance due to them, out of the property in question, and that the residue may be subjected to the payment of the complainant’s debt, and for other and further relief.
Under the act of Congress of the 28th of February, 1839, (5 Stat. at Large, 321, § 1,) it does not defeat the jurisdiction of court that a person named as defendant is not an inhabitant of or found within the district where the suit is brought; the court may still adjudicate between the parties who are properly before it, and the absent parties are not to be concluded or affected by the decree.
It is obvious, however, that there may be cases in which the court cannot adjudicate between the parties who are regularl) before it, for the reason that it cannot bind those who are absent. Where no relief • can be given without taking an account between an absent party and one before the 'court, though the defect of parties may not defeat the jurisdiction, strictly .speaking) yet the court will make no decree in favor of the complainant.
*37 The case before us is not one of this character; for although the whole of the relief specially prayed for cannot • be granted in the particular mode there indicated, because' the United States not being a party, no account can be taken of the debt due to them from Leroy Pope or William H. Popé, yet, subject to .the encumbrance of this debt, and without affecting it in any manner, the property may be appropriated to the payment of the complainant’s debt.
It is true, that in Finley v. The Bank of the United States, (11 Wheat. R. 306,) which was a bill to foreclose a mortgage by sale, 'Chief Justice Marshall says: “ It cannot be doubted that the prior mortgagee ought regularly to-have been a party defendant, and that had the existence of his mortgage' been known to the court, no decree ought to have been pronounced in the cause until he was introduced into it.” But it could not have been intended by this to say, that a prior encumbrancer was absolutely a necessary party without whose presence no decree of sale could be made, because in that very case the court refused to .treat the decree as erroneous, after it had been executed.
Tn Delabere
v.
Norwood, (3 Swanst. R. 144, n.) in a bill to obtain payment of an annuity charged on land, prior annuitants were held not to be necessary parties. In Rose
v.
Page, (2 Sim. 471,) the same rule was .applied to a prior mortgagee ; and in Wakeman v. Grover, (4 Paige, R. 23,) and Rundell
v.
Marquis of Donegal, (1 Hogan, 308,) and Post
v.
Mackall, (
On the other hand there are ■ cases in which it has been declared that all encumbrancers are necessary parties. Many are collected in Story’s Ed., Pl. 178, n. But we consider the true rule to be, that, where it is the object of the bill to procure a. sale of the land, and the prior encumbrancer holds the legal title, and his debt is payable, it is proper to make him a party in order- that a sale may be made of the whole title. In this sense, and for this purpose, he may be correctly said to- be a necessary party, that is, necessary to such a décree. But it is in the power of the court order a sale subject to the prior encumbrance, a power which it will exercise in fit cases. And when ttie prior encumbrancer is not subject to the jurisdiction of tne court, oi cannot be joined without defeating its jurisdiction, and the validity of'the encumbrance is admitted, it is fit *38 to dispense with his being máde a party. To such a case the 47th rule for the equity practice of the Circuit Courts of the United States is applicable, and by force of it, this cause • may proceed without making the United States, or the Solicitor of the Treasury a party to the decree.
The decree of the District Court must be reversed, and the' case rerrianded, with directions to overrule the demurrer and order the defendants, other than the representative of the United States, to answer the bill.
Order.
This cause came on to be heard on the transcript of the record from the District Court of the United States for the Northern District of Alabama, and was argued by counsel. On consideration whereof it is now here ordered, adjudged, and decreed, that the decree of the said District Court in this cause be, and the same is hereby, reversed costs, and that this cause be, and the same is hereby, remapped to the said District Court, with directions to oyerrule the demurrer, an<j to order the defendants, other than the representative of the United.States, to answer the bill.