77 P. 128 | Or. | 1904
Lead Opinion
delivered the opinion of the court.
The allegations of the cross-bill, in substance, are that in 1896, one S. A. Miles recovered a judgment against the defendant M. Fisk in the circuit court for Gilliam County
1. The judgment recovered by Miles against Fisk in Gilliam County was never docketed so as to become a lien upon real property, because the time “when docketed” was not stated in the judgment lien docket, as required by statute: Hutchinson v. Gorham, 37 Or. 347 (61 Pac. 431); Western Sav. Co. v. Currey, 39 Or. 407 (65 Pac. 360, 87 Am.
2. Where a debtor has conveyed his property for the purpose of defrauding creditors, it may subsequently be taken on execution against him, because as to the creditors the deed is void and the legal title remains in the grantor. The creditor in such case is not required to resort to equity to have the deed canceled, but may levy upon and sell the property under execution, and the purchaser will obtain a legal title (Wait, Fraud. Convey. 3 ed., § 59 ; 1 Freeman, Executions, § 136 ; Judson v. Lyford, 84 Cal. 505, 24 Pac. 286; Potter v. Adams, 125 Mo. 118, 28 S. W. 490, 46 Am. St. Rep. 468; Thompson v. Baker, 141 U. S. 648, 12 Sup. Ct. 89), and many of the authorities hold he may maintain an action of ejectment thereon against the fraudulent grantee : 14 Am. & Eng. Enc. Law, (2 ed.) 312.
3. It would seem, therefore, that the law action of Fisk v. Wood could probably have been defeated by proof that
As the court was in error in sustaining the demurrer to the cross-bill, the decree will be reversed, and the cause remanded for such further proceedings as may be proper, not inconsistent with this opinion. Reversed.
Decided 1 August, l!)0i.
Rehearing
On Motion for Rehearing.
delivered the opinion of the court.
5. It is immaterial whether the judgment recovered by Miles against Fisk in the circuit court for Gilliam County was docketed so as to become a lien upon the real property of the defendant in Wallowa County. An execution was issued on the judgment from the county in which it was rendered, the property now in controversy levied upon and sold to plaintiff’s predecessor in interest, the sale confirmed, and a deed issued to him. . This gives plaintiff a standing in equity to attack a previous conveyance by the judgment debtor, made for the purpose of hindering, delaying, and defrauding creditors, and that is the purpose of the cross-bill. The motion is denied.
Reversed : Rehearing Denied.