50 Miss. 551 | Miss. | 1874
delivered the opinion of the court.
A. H. Taylor recovered a judgment at law, against Homer Pulliam, for several thousand dollars. One execution was returned nulla Iona. Afterwards another was issued, which was levied by the sheriff, on the several parcels of land mentioned in the bill. Taylor alleges, that some time prior to the recovery of the judgment, Pulliam conveyed the lands to his wife, without any valuable consideration therefor, and with intent to hinder, delay and defraud the complainant and others, his creditors.
The formal exceptions taken by the demurrer, to the bill, are not well founded. The residence of the parties is stated.
It has been long settled in this state, that a creditor cannot obtain the aid of a court of equity to subject equitable assets, such as cannot be taken on execution, until he has reduced his demand to judgment, and pursued his debtor to insolvency at law, by a return of nulla bona, upon an execution. Farned v. Harris et al., 11 S. & M., 366; Brown v. Bank of Mississippi, 31 Miss. Rep., 458. But that doctrine has no application (as insisted by counsel) to this case.
The statute of frauds denounces absolute nullity, upon every gift, grant, conveyance * * made * * with intent to hinder, delay or defraud creditors. “In so far as the .judgment creditor is concerned, it is as though the conveyance had never been made, and the title was still in the debtor, the fraudulent grantor.” Carlisle v. Tindall, 49 Miss., 234; Pennington v. Seal, 49 Miss., 527. Such is the character which the bill ascribes to the conveyance, made by Homer Pulliam to his wife. Notwithstanding that conveyance, the property was open to creditors, and they could reach it as though that deed had never been made. The lien of the judgment was operative upon the land, and the creditor had a right to satisfaction of his judgment by a sale of it, under execution. The land, which the creditor is thus pursuing, is not equitable assets, within the meaning of the authorities cited, but is legal assets, accessible to the sheriff, under legal process.
The object sought by the bill is to disincumber the land, the title to which is obscured, and made apparently doubtful, by the conveyance of Pulliam to his wife, so that a good and reliable title may be offered to purchasers, and the creditor may obtain the worth of the land on a sale. The jurisdiction of a court of equity is ample either before or after sale, to set aside a fraudu
It is by virtue of the “ lien,” that ,tbe creditor may go into a court of equity to displace a fraudulent conveyance, even before levy. The two last cited eases — and Brinkerhoff v. Brown, 4 John. Ch. Rep., 677.
There Is no error in overruling the demurrer to the bill.
Tbe decree is affirmed.