Verner v. Downs

13 S.C. 449 | S.C. | 1880

The opinion of the court was delivered by

Willard, C. J.

This action is in the nature of a judgment creditor’s bill to set aside a conveyance made to the defendant, S. Downs, the wife of the judgment debtor, on the ground that it was made to hinder, delay, and defraud the creditors of such judgment debtor. The decree appealed from adjudged the conveyance in question to be fraudulent and void. The fifth ground of appeal raised the objection that the decree, in adjudicating the conveyance fraudulent and void, “ is contrary to law and the evidence.” The objection renders it necessary for us to see whether the evidence on which the decree was pronounced shows that the plaintiffs had an equity to demand the decree. It nowhere appears that an execution has been issued upon his judgment, and that it has been returned nulla bona in whole or inp part. This is a fatal defect in showing that the plaintiff has a. right to demand the aid of a court of equity in a creditor’s-bill inter vivos. Ragsdale v. Holmes, 1 S. C. 91. The proper remedy for a judgment creditor, for the enforcement of his judgment, is by execution in the court of law. ,It is only when he has exhausted that remedy without satisfying his debt, that he can demand the aid of a court of equity. The highest evidence of the exhaustion of such remedy is the record evidence offered by the returns of the sheriff upon the execution. The plaintiff, in producing such return of nulla bona, is not required to give independent proof of the solvency of his debtor. Enjoying the advantages arising from the simplicity and inexpensiveness of this means of exhibiting the condition of his debtor’s estate, it is unreasonable to permit him to disregard these simple means of proof, and cast upon the court and the party the onerous issue of the insolvency of the defendant, upon general evidence. Hence it is that the courts of equity have held, as a rule of convenience, founded on the clearest reason and equity, that the plaintiff must issue his execution and procure its return, before applying to the court of equity for aid. Having failed to show, in the present case, that this step has been taken, the evidence shows no equity in the plaintiffs to demand the decree that has been pronounced, and it must be reversed.

It is not claimed, at bar, that the deficient evidence can be supplied at the Circuit, and the bill must be dismissed.

Decree reversed.

MoIver and McGowan, A. J.’s, concurred.