| Mo. | Oct 15, 1869
delivered the opinion of the court.
This is a petition in equity filed by tho plaintiffs, who are creditors of C. Zelina Eremon, deceased, against Louis A. LeBeaume, trustee of said deceased, and also of her children, who are joined with said LeBeaume as co-defendants. The object of the petition is to subject certain real estate described therein to the payment of tho indebtedness of said C. Zelina Eremon to the plaintiffs, said indebtedness having been reduced to judgment in the lifetime of said Eremon. This judgment was duly allowed and classed by the Probate Court as a claim against her estate. The petition charges that said real estate was acquired with the funds of said deceased, and that the title thereto was, in fraud of the rights of her creditors, vested in said LeBeaume in trust
The original judgment in favor of the plaintiffs was rendered in the month of April, 1863. The present suit was commenced October, 1868. The petition is demurred to mainly on the alleged ground that it does not state facts sufficient to constitute a cause of action, or to warrant the relief prayed for. It is supposed to bo defective in this particular, because it show's upon its face that the lien of the plaintiffs’ original judgment has expired. This objection appears to be based upon the idea that the real estate in question can not be subjected to the plaintiffs’ claim, or to judgment in a chancery proceeding, without the basis of a legal lien to found the proceedings upon ; or, to state the proposition in more general terms, it would seem to be the view of the defendants’ counsel that a creditor, before he can rightfully question in chancery the propriety of the disposition which his debtor may have made of his property, must first fasten and and maintain upon such property a valid lien at law.
It is doubtless true that the creditor in this class of cases, before resorting to chancery, must first exhaust his legal remedies, whatever they may be. In doing so he may create a lien upon the property sought to be subjected. The creation of such lien is, perhaps, an ordinary incident to such preliminary proceedings at law. But the lien is the incident, and not the object, of the proceedings. The object is, in the first place, by judgment, to reduce the creditor’s claim to certainty — to show that he is in fact a creditor. Unless the party shows that, he has no concern with his .debtor’s supposed frauds. * It is-therefore necessary for a party claiming to bo a creditor, to show by appropriate proceedings at law that he is in fact so, before a court of chancery will, at his instance, enter into an investigation of acts and transactions alleged to be fraudulent as to
The essential condition to proceedings in equity, in these cases of fraudulent conveyances, is that the creditor shall first apply and use his legal remedies ; and this does not necessarily involve the issuing of an execution, as where the judgment is against an insolvent estate. (McDowell v. Cochran, 11 Ill. 31" court="Ill." date_filed="1849-11-15" href="https://app.midpage.ai/document/mcdowell-v-cochran-6947250?utm_source=webapp" opinion_id="6947250">11 Ill. 31; also, 21 Ill. 337.) It has also been held that where it is shown that the debtor was insolvent, and that the issue of an execution would necessarily be of no practical utility, its issue might be dispensed with. (Postlewait v. Howes, 3 Clark, Iowa, 366.)
In the case at bar the indebtedness is established by the judgment of the Probate Court, allowing the plaintiff’s original judgment as a subsisting claim against said deceased’s estate. The
The plaintiffs are, therefore, without remedy, except in this form; and, as they have exhausted all legal modes of redress, justice must be administered by calling into exercise the powers of the court of chancery. (See Potts v. Blackwell, 3 Jones’ Eq., N. C., 449; State Bank v. Ellis, 30 Ala. 478" court="Ala." date_filed="1857-01-15" href="https://app.midpage.ai/document/state-bank-v-ellis-6506020?utm_source=webapp" opinion_id="6506020">30 Ala. 478 ; Quarles v. Grigsby, 31 Ala. 172" court="Ala." date_filed="1857-06-15" href="https://app.midpage.ai/document/quarles-v-grigsby-6506099?utm_source=webapp" opinion_id="6506099">31 Ala. 172 ; Greenway v. Thomas, 14 Ill. 271" court="Ill." date_filed="1853-06-15" href="https://app.midpage.ai/document/greenway-v-thomas-6947940?utm_source=webapp" opinion_id="6947940">14 Ill. 271.)
All the parties interested in the real estate in question appear to be before the court. The estate of the deceased, subject to administration, has been fully administered, and the trust of the administrator terminated. There would not; therefore, seem to be any administrator to join in the suit. But if there were, to what end should he be made a party ? He has no interest in the matter, and, as we have seen, is not permitted to contest the validity of the transaction charged with the alleged fraud.
All persons interested in the subject of the litigation are joined and brought in, and that would seem to be sufficient. It is purely a controversy between them and the plaintiffs, and not between the plaintiffs and the administrator.
The judgment of the Circuit Court, for these reasons, is reversed and the cause remanded.