162 N.W. 389 | S.D. | 1917
We shall not consider the question of fraud in the transfer, as we deem it unnecessary in view of other matters presented by the' assignments of error.
Appellants assign insufficiency of the evidence to support the findings and the judgment of the court canceling the deed, for the reasons, among others: First. The evidence does not show that the defendant Flora J. Halvor is insolvent. Second. The evidence fails to show any effort whatever on the part of the plaintiff to collect the judgment against Flora J. Halvor.
Section 334, Code of Civil Procedure, provides:
“The writ of execution * * * shall require the officer substantially as follows: If it be against the property of the judgment debtor to satisfy the judgment-with interest and accruing costs, out of the personal property of such debtor; and if sufficient personal propertjr cannot be found, out of the real property belonging to him on the day when the judgment was docketed in the county, or at any time thereafter.”
“Sec. 337. When an execution is delivered to any officer he must indorse thereon the day and hour when he received it, and must proceed to execute the same with diligence. * * * If no personal property be found an indorsement to that effect must be made on the writ before levy is. made on real property.”
Under these statutes, personal property is made the primary fund for the satisfaction of an execution, and we are of the view that, before a judgment creditor is entitled to the aid of equity to set aside a fraudulent conveyance of real estate, he must issue an execution on the judgment and exhaust the personal property of the judgment debtor before having recourse to real estate.
Easton Nat. Bank v. Buffalo Chemical Works, 48 Hun, 557, 1 N. Y. Supp. 250, holds, that an action to- vacate a judgment, which prevents plaintiff’s judgments from becoming valuable liens upon real estate of the 'debtor, could not be maintained unless execution had been issued on the judgments and was outstanding
In Geery v. Geery, 63 N. Y. 253, the court said:
“The statute law gives a remedy by execution, and that remedy, upon every reason of public policy and convenience, should be exhausted before a new 'suit should be allowed to be maintained. * * * If the judgment were a judgment in an action at law no one could question that before an action of this kind could be maintained, as to the real estate, an execution must have been issued. * * *” Compton v. Patterson, 28 S. C. 152, 5 S. E. 470; Ryttenberg v. Keels, 39 S. C. 203, 17 S. E. 441; Brown v. John Earwell Co. (C. C.) 74 Fed. 764.
In Brock v. Rich, 76 Mich. 644, 43 N. W. 580, it was held that, when the personal property of the debtor was sufficient to satisfy the creditor's judgment, there was nothing which would justify a resort to the debtor’s real estate, even though fraudulently conveyed.
In a number of states it is held that a creditor is not authorized to interfere with any disposition which a debtor may make of his property, so long as he is not injured- thereby. The debtor might convey his property with the intention of defrauding his creditors; but, if he still retained property subject to execution out of which the debt might be collected, the creditor could not complain. Brumbaugh v. Richcreek, 127 Ind. 240, 26 N. E. 664, 22 Am. St. Rep. 649; Meaux v. Anthony, 11 Ark. 411, 52 Am. Dec. 274; Stephens v. Parvin, 33 Colo. 60, 78 Pac. 688; Bannington v. Purinton, 105 Iowa, 642, 75 N. W. 639; Drahos v. Kopesky, 132 Iowa, 497, 109 N. W. 1021.
In many states where the statute does not make personal -property the primary fund for satisfaction of the execution, it is held that, where the judgment is made a lien upon the debtor’s real property, an action may be maintained to cancel a fraudulent conveyance without issuance or return of an execution. Level Land Co. v. Sivyer, 112 Wis. 442, 88 N. W. 317; Dillman v. Nadelhoffer, 162 Ill. 625, 45 N. E. 680; Cornell v. Radway, 22 Wis. 260.
The statute requires the issuance of an -execution, and a levy on -personal property -of the judgment debtor if sufficient personal property can be found to satisfy the judgment, and, if no- personal
In Verner v. Downs, 13 S. C. 449, it was held that execution and a return nulla bona were conditions precedent to the right to maintain an action to set aside a fraudulent conveyance. McMahan v. Dawkins, 22 S. C. 314; Compton v. Pettenson, 28 S. C. 152, 5 S. E. 470; Morrow Show Mfg. Co. v. New England Shoe Co., 57 Fed. 685, 6 C. C. A. 508, 24 L. R. A. 417; Fox v. Moyer, 54 N. Y. 125; Adsit v. Butler, 87 N. Y. 585; Harvey v. Brisbin, 143 N. Y. 151, 38 N. E. 108; Miller v. Miller, 7 Hun (N. Y.) 208; Bigelow Blue Stone Co. v. Magee, 27 N. J. Eq. 392.
Furthermore, until an execution has been issued and the return of no personal property found' has been indorsed thereon as required' by the statute, it would not be apparent that the creditor bad exhausted his remedy through legal process, as the debtor’s personal property might be ample to satisfy the execution. In such case, it is not the transfer which obstructs his right to take the real property affected, but the statute which forbids a levy upon a creditor’s land’ in satisfaction of an execution until the creditor’s personal property has been exhausted. Until his right
The stay of execution by the trial court cannot change the requirement of the statute in this respect. It follows that the judgment canceling the transfer of the lot was erroneous, and is therefore reversed.