Epitomized Opinion

Published Only in Ohio Law Abstract

This was an action to set aside an alleged fraudulent conveyance. Plaintiff, Tufts, recovered a judgment at the January term, 1922. The action was one in tort for damages. The conveyance in question was made by the judgment creditor to his nephew, Bor-ror, December 28, 1921, which was a few days before the opening of the said term. The lower court rendered a decree for the defendant, whereupon Tufts appealed. In decreeing that the conveyance was not fraudulent, the Court of Appeals held:

1. In an action of tort for liquidated damages, the plaintiff is not a creditor until he reduces his claim to judgment.

As there was no question but that the conveyance was made for a consideration in order to avoid the conveyance it was necessary for plaintiff to prove that the judgment debtor intended to defraud the plaintiff .and that the grantee had notice of the fraud at the time it was made, and as this does not appear to be so, it cannot be said that it was fraudulent.