This is a creditors’ suit brought by the appellee against William Belk, Henrietta Belk, his wife, Nina Riggs, daughter of the said William and Henrietta Belk, and George A. Riggs, her husband. The undisputed facts are as follows:
At the May, 1899, term of the district court for Lancaster county the bank recovered judgment against Belk for about $450 and costs, taxed at upwards of $90. The basis of the judgment was a promissory note, of which the following is a copy:
“$300. Ceresco, Neb., Sept. 30, 1889.
“On demand after date,’ for value received, we jointly and severally promise to pay to the order of State Bank .of Ceresco, Neb. three hundred dollars, with interest at the rate of ten per cent, per annum from maturity until paid. ’ This note is given as security for a note of even date and amount of Thomas Stretch in favor of State Bank of Ceresco and the maker hereof waives protest and notice of non-payment and guarantees the payment of said note, or any renewal of the same.
(Signed) “Wibbiam Bebk.”
At the time of making said note Belk was the owner of some two hundred acres of land, which it is sought to subject to the payment of the judgment. On October 21, 1895, Belk and his wife deeded this land to George A. Riggs, their son in law. This conveyance was made while the suit in which judgment was finally entered was still pending. At the time of the conveyance to Riggs the land was encumbered by a mortgage for $3,000, and the consideration expressed in the conveyance was $4,000, and the assumption by Riggs of said mortgage. Riggs ex
It will be noticed that the note upon which judgment .against Belk was entered was given as security for the payment of another note of like date and amount executed to the bank by one Thomas Stretch, and it is earnestly insisted that a creditors’ suit can hot be maintained against the surety without a showing on the part of the appellee that it has exhausted its legal remedies not only against the defendant Belk, but against Stretch, the principal debtor. The rule is of universal application that a creditors’ suit to come at the equitable assets of the debtor which an execution at law will not reach, can not be maintained until the creditor has exhausted his legal remedies for the collection of his debt. A court of law is the proper forum for the enforcement of legal demands, and a court of equity will not interpose its extraordinary aid until legal remedies have proved ineffectual. It has been frequently said that courts of equity are not tribunals for the establishment or collection of ordinary demands. Sloan v. Waring, 55 How. Pr. (N. Y.) 62; Dawson v. Sims, 14 Ore. 561; Taylor v. Bowker, 111 U. S. 110. It is also held in some jurisdictions that, where there are two or more joint debtors, it is not sufficient to exhaust the legal remedies against one of them only, but they must be exhausted against all. Voorhees v. Howard, 4 Keyes (N. Y.) 371; Child v. Brace, 4 Pai. Ch. (N Y.) 308; Field v. Hunt, 22 How. Pr. (N. Y.) 329.
There are, however, two classes of cases, both commonly called creditors’ suits, which, although resembling each other, are clearly distinguishable. The first, a creditor’s suit strictly, so called, is where the creditor seeks to satisfy
The opinion in Fusze v. Stern, 17 Ill. App. 429, 432, clearly draws the distinction betwen these two classes of cases. In that case it is said that the creditor, before he can have the aid of a court of equity to decree the equitable estate of his debtor subject to the payment of his debt, “must show by his bill, as in other cases where invoking equitable jurisdiction, that he has no adequate remedy at law, which can only be shown by alleging and proving that he has exhausted all the means provided by law for the collection of his debt, viz., a recovery of judgment, the issuing of execution and its return nulla tona by the officer charged with its collection. Another kind of bill analogous to this' is where the creditor, having recovered judgment against his debtor, seeks to remove a fraudulent conveyance or incumbrance out of the way of an execution issued or to be issued upon such judgment. In such case equity will afford relief on the ground that such judgment is an equitable lien upon the real estate, nominally held by a third party under such fraudulent conveyance, and the creditor having this lien is entitled to levy upon and sell upon his execution such real estate discharged and untrammeled from the cloud upon it caused by such conveyance. In bills of this kind the complainant need not even prove return of execution nulla tona, as such conveyances are void by the statute, and courts of
We think there is no dissent in the authorities from the principle announced in the aboye cases, all agreeing that a court of equity Avill assist the judgment creditor by removing a fraudulent obstruction placed in the Avay of the enforcement of his execution. In such case the equity court is not itself collecting the debt. It is merely lending its assistance to the legal tribunal in Avhich the judgment was obtained in collecting from the debtor Avhat is due by interposing its aid to accomplish what a court of law has no jurisdiction to do, viz., cancel a conveyance found to be fraudulent, and made for the purpose of putting the property beyond reach of the writ of the legal tribunal. It is upon the Avrit of the law court that the property is' finally sold and the collection enforced.
We are satisfied that the decree of the district court was right and recommend its affirmance.
By the Court: For the reasons stated in the foregoing-opinion, the decree of the district court is
Affirmed.