Wylie v. Basil

Prior to the act of 1835, ch. 380, the principle appears to have been well established that a creditor could not claim the aid of a court of equity in following real estate fraudulently conveyed away by his debtor without first obtaining a judgment at law, nor personal estate thus conveyed without issuing a fieri facias. These steps were deemed necessary in order to create a lien upon these two descriptions of property. In the case of personal property, in the language of Chancellor Kent, in Hendricks vs. Robinson, 2 Johns. Ch. Rep., 296, “the judgment creditor should he required to make an experiment at law, and hind the property by actually suing out execution.” And in Brinkerhoff vs. Brown, 4 Johns. Ch. Rep., 677, “if" he seeks aid as to real estate he must show a judgment creating a lien.” The case of Birely vs. Staley, 5 Gill & Johns., 432, was not designed nor does it shake these principles, though there were circumstances there which rendered them inapplicable.

But the second section of the act of 1835, ch. 380, has changed the law in this respect in this state by declaring, “that in a proceeding in equity to vacate a conveyance or other act as fraudulent against creditors, it shall not he necessary for the creditor plaintiff in the cause to obtain a judgment on his demand, in order to the relief sought in the case either in his or her own behalf, or in behalf of any other creditor who shall claim to participate in the benefit of the decree in the cause.”

This act of the legislature appears to me to remove the only obstacle to the complainants’ title to the aid of the court, and the deeds, therefore, impeached by this bill must be vacated, •and the property sold for the benefit of the creditors of William *330Basil. It may be, and indeed is, not improbable that the property in question was paid for with the money spoken of by Dr. -Biidout, but it was paid by him to William Basil, not as trustee for his wife, nor as her separate estate, but in his own right, and if applied to pay for the property, it was so applied as his own, .and the deed from the vendor, Sevier, taken to himself, and the house and lot remained, according to the evidence furnished by the public records as his property from the date of the deed in December, 1842, until April, 1847, when the deeds now sought Ao be vacated were executed. Under these circumstances, it seems impossible to regard the property as belonging to the -wife, and it must, therefore, be liable to the creditors of the •husband. The court will sign a decree accordingly.