This is a creditors’ action brought to subject certain property to the lien of plaintiff’s judgment, pursuant to the provisions of sec. 3029, Stats. (1898). It is obvious that the court was right in sustaining the demurrer to the complaint. If the title to the property did not pass from the Sisters of Mary then no action was necessary, because there is nothing to prevent the plaintiff from issuing execution on its judgment and levying upon and selling the property. The complaint, however, in substance and effect alleges that the title has passed from the, Sisters by virtue of the provision for reversion contained in the deed, which provision is embodied in the foregoing statement of facts.

Where the title now rests, assuming as alleged that it has passed from the Sisters, is immaterial to a decision of this case. It is where the Sisters of Mary, the subscribers, and the grantor in the deed, M. J. Ward, agreed that it should be. The Sisters were not bound to maintain a hospital for any length of time under the agreement contained in the deed. They might abandon it at any time they saw fit, provided they were willing to suffer the penalty stipulated in the deed of conveyance. All parties agreed as to just what disposition should be made of the property if the Sisters ceased to use it. They either forfeited it or they did not. As before stated, if they did not forfeit the action is wholly unnecessary, and if they did this action will not lie. Sec. 3029 provides:

“Whenever any execution against the property of any judgment debtor shall have been issued upon a judgment for the payment of money and shall have been returned unsatisfied in whole or in part the judgment creditor may commence an action against such judgment debtor and any other person to *85compel tbe discovery of any property or thing in action belonging to sncb judgment debtor and of any property, money or thing in action due or held in trust for him, and to prevent, the transfer of any such property, money or other thing in action, or the payment or delivery thereof to such judgment debtor, except where such trust has been created by or the fund so held in trust has proceeded from some person other than the defendant himself.”

Assuming the allegations of the complaint to be true, the real estate involved is not property belonging to the debtor or held in trust for it. The action is not one to prevent the transfer of property held in trust for the judgment debtor to. such debtor, because no claim is made that any one is about to make such transfer. Neither is the action one to set aside a fraudulent transfer, because no fraud is alleged. No violation of the final agreement with the subscribers is shown, and therefore no right of action is shown to recover back the money subscribed. It is not alleged that the Archbishop consented to maintain the hospital if the Sisters failed to do so or that he has breached any obligation which he entered into. If there is any conflict between the two agreements between the subscribers and the Sisters of Mary, that last made and reduced to writing must prevail, and that specifically provided for the contingency that arose when the Sisters abandoned the hospital.

A considerable portion of respondent’s brief is devoted to arguing the proposition that the complaint does not state a cause of action to enforce an equitable lien against the hospital property for money subscribed to build.it, and to the further point that in any event such lien did not pass with the assignment of the claims of the subscribers to the plaintiff. We do not understand that the appellant claims that the action is one to enforce an equitable lien. That no such lien exists under the facts averred in the complaint is too plain to admit of doubt or to invite discussion.

By the Court. — Order affirmed.