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tory proceedings in assignments, judgment cannot be rendered on a claim filed with the assignee until after the expiration of the time given for filing exceptions, the mere filing of a claim by a creditor does not constitute a reducing of his claim to judgment, so as to authorize him to maintain a bill to set aside as fraudulent a conveyance by the insolvent debtor. Austin v. Bruner, 169 Ill. 178 (48 N. E. Rep. 449).

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Construing and applying N. M. Insolvency Act 1889, §§ 1, 2, providing that any transfer of property by a debtor in contemplation of insolvency and with the design to prefer one or more of his creditors, shall operate as an assignment of all his property and shall inure to the benefit of all his creditors and that all such transfers as are decreed void are to inure to the benefit of all creditors generally and are to be subject to the control of a court of equity upon a bill filed by any person interested, it is held that if a debtor is insolvent or in contemplation of insolvency and makes a conveyance giving a fraudulent preference, a trust is then created in behalf of all of the creditors and any one or all of them may proceed to have the trust declared and the property proportionately administered without first reducing his claim to a judgment at law. Early Times Distillery Co. v. Zeiger, N. M. Pac. Rep. 723). The Court say: "Stated as a general proposition, there can be no doubt that the well-settled rule is that if the creditor has a legal remedy, which is plain, adequate and complete, he must exhaust that remedy before he will be allowed admission into a court of equity. He should proceed upon the law side of the court, obtain his judgment, and have execution returned thereon unsatisfied, as a condition precedent to enable him to attack, by a bill in chancery, the fraudulent conveyance of his debtor. While this proposition is true, it is also well settled, by a line of authorities equally convincing and controlling, that if the remedy at law is not plain, adequate and complete, or if the creditor has a trust in his favor, then, in either event, he is not required to go first into a court of law, but may apply in the first instance to a court of equity for relief. The fact that the remedy at law may have been exhausted, or that it is wholly inadequate and incomplete, may be, and is, clearly and conclusively shown by the judgment, execution, and return of nulia bona. The judg

ment, execution and return are but the best evidence of these facts; but they are not the only method or the only evidence by which it may be shown that the remedy at law is wholly inadequate and incomplete. If the bill upon its face contains such allegations of fact that the court is enabled to see that there is no remedy at common law, or that the remedy at law is wholly inadequate or incomplete, or if the allegations of the bill show that the creditor has, or claims a trust in his favor, or is seeking to establish his claim as against the trust property, and that the relief can only be made available in a court of chancery, then, upon such a case being made by the bill, the court will not require him in the first instance to hazard his chances of recovery by a useless expenditure of time in obtaining an empty judgment and fruitless execution, as a condition precedent to entertaining his bill." The court cite, Case v. Beauregard, 101 U. S. 688; Consolidated Tank-Line Co. v. Kansas City Varnish Co. 45 Fed. Rep. 16; Talley v. Curtain, 4 C. C. A. 177 (54 Fed. Rep. 43); Russell v. Clark's Ex'r, 7 Cranch 87; Oelrichs v.Spain, 15 Wall. 228.

Sec. 382. Setting aside-Complaint. A complaint need not allege that the property was not exempt from exection. A complaint againt the administrator of a deceased fraudulent grantor must allege that the other assets of the estate were insufficient to pay all the intestate's debts. It is sufficient to allege that there was no property of said estate with which to pay the plaintiff's claim except by setting aside the conveyance and it need not allege that the grantor had no property from the making of the conveyance until his death. State v. Parsons, 147 Ind. 579 (47 N. E. Rep. 17; 62 Am. St. Rep. 430). Particular complaint held sufficient. ley v. Buck, 100 Ga. 187 (28 S. E. Rep. 97.)

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Sec. 383. Setting aside-Parties. may join in an action to set aside a fraudulent conveyance. Gamet v. Simmons, 103 Ia. 163 (72 N. W. Rep. 444). The grantee in a fraudulent conveyance is a necessary party. Terhune v. Sibbald, 55 N. J. Eq. 236 (37 Atl. Rep. 454). In a suit to set aside as fraudulent a conveyance made to a partnership in payment of a debt due the firm, a deceased

partner's heirs are not necessary parties. Folsom v. Detrick F. & C. Co., 85 Md. 52 (36 Atl. Rep. 446). In an action by creditors to establish their claims against the estate of a decedent and subject to their payment certain real estate alleged to have been fraudulently conveyed, the personal representative of the alleged debtor and those into whose hands any of the assets of the debtor necessary for the payment of his debts have improperly or fraudulently gone, as well as those who may have acquired or may claim to have acquired any liens upon such assets, are necessary parties. Shepherd v. Green, 48 S.C. 165 (26 S. E.Rep.224). Where an action by the judgment creditors to set aside a conveyance as fraudulent does not ask for an accounting of rents and profits, it is not necessary to bring in as a party defendant, a receiver of the rents and profits of the real estate affected by the conveyance, appointed long after the conveyance was made and in an action to which the plaintiffs were not parties. Daisy Roller Mills v. Ward, 6 N. Dak. 317 (70 N. W. Rep. 271).

Sec. 384. Setting aside-Practice. An answer to a complaint charging the conveyance of property with intent to defraud creditors, which contains simply a general denial of all the allegations of the complaint not specifically omitted, is not sufficient to prevent judgment on the pleading, but where the answer sets up affirmatively that the deeds or conveyances attacked for fraud were made for the purpose of securing the defendant's debts which were then due, it is sufficient to prevent a judgment for the plaintiff on the pleadings. National Wall-Paper Co. v. McPherson, 19 Mont. 355 (48 Pac. Rep. 550). Where in an action to set aside a fraudulent conveyance intended as a mortgage, for fraud, the mortgagee seeks by cross petition to have the mortgage foreclosed, he must serve notice of his cross petition upon the mortgagor and prove its allegations where they are denied in the reply. Cathcart v. Grieve, 104 Ia. 330 (73 N. W. Rep. 835). Where, in an action to set aside a deed as fraudulent and to sell the real estate, the court decrees a conveyance fraudulent and void, it is error not to decree further and set aside the deed and provide for the sale of the property conveyed to pay the debt; but land not involved in the action cannot be

ordered sold in such decree. Chrislip v. Teter, 43 W. Va. 356 (27 S. E. Rep. 288). Where, in an action by a judg ment creditor to declare a conveyance by his debtor fraudulent, the conveyance is adjudged to be a valid mortgage, the creditor is entitled to a judgment subjecting his debtor's equity of redemption in the property to his judgment. Fenton v. Morgan, 16 Wash. 30 (47 Pac. Rep. 214). A creditor's action to set aside a conveyance executed in fraud of creditors, will not be defeated by the fact that the debtor's claim of exemption and prior liens may absorb the whole property, unless it is made to appear beyond question that such will be the result. Peterson v. Gittins, Ia. (72 N. W. Rep. 662).

Sec. 385. Setting aside-Charging grantee with notice Fraudulent intent as a question of fact. To charge a grantee with notice of the fraudulent intent of the grantor it is not necessary to prove positive knowledge on the part of such grantee. It is sufficient to prove that he had knowledge of facts and circumstances which were naturally and justly calculated to excite suspicion in the mind of a person of ordinary care and prudence and which would naturally prompt him to pause and inquire before consummating the transaction, and that such inquiry would have necessarily led to a discovery of facts from which the law imputes fraud to the grantor., Ferguson v. Daugherty, 94 Va. 308 (26 S. E. Rep. 822); Gamet v. Simmons, 103 Ia. 163 (72 N. W. Rep. 444). Construing Mills' Ann. Colo. Stat., § 2033 (Gen. Stat. 1883, § 1529), providing that fraudulent intent is a question of fact and not of law and that no conveyace is to be adjudged fraudulent solely upon the ground that it was not founded upon a valuable consideration, it is held that where the conveyance is in the nature of a gift, it is not necessary to show participation in the fraud by the grantee, and where the execution of such a conveyance by a failing debtor necessarily results in delaying his creditors, the conveyance is a legal fraud though no specific intent to defraud exists. Wells v. Schuster-Hax Nat. Bank, 23 Colo. 534 (48 Pac. Rep. 809). Construing Cal. Civ. Code, § 3442, which prior to 1895 provided that "the question of fraudulent intent is one of fact and not of law; nor can any

transfer or change be adjudged fraudulent solely on the ground that it was not made for a valuable consideration," but which was amended by Laws 1895, p. 154, by adding a provision "that any transfer or incumbrance of property made or given voluntarily or without a valuable consideration by a party while insolvent or in contemplation of insolvency shail be fraudulent and void as to existing creditors," it is held that the statute as amended does not apply to prior conveyances and that prior to this amendment a conveyance otherwise executed in good faith, cannot be set aside as a fraud upon creditors solely on the ground that it was not made for a valuable consideration, Cook v. Cockins, 117 Cal. 140 (48 Pac. Rep.

1025).

Sec. 386. Setting aside-Proof of fraud. Fraud must be proved; it cannot be presumed without proof, Ensign v. Fisher, 14 Utah 477 (47 Pac. Rep. 950); but it may be proved by circumstantial evidence. Hazelwood v. Forrer, 94 Va. 703 (27 S. E. Rep. 507). The fact that a debtor keeps the money realized from a conveyance of his property and his other property inaccessible to his creditors, is a strong circumstance showing a fraudulent intention in making the conveyance. Cohen v. Parish, 100 Ga. 335 (28 S. E. Rep. 122). Under N. Dak. Rev. Codes,§ 5052, if a creditor seeking to set aside a conveyance as fraudulent, as against himself, shows that the conveyance was made and received for the express purpose of defrauding another creditor, he thereby establishes its fraudulent character as against himself. Daisy Roller Mills v. Ward, 6 N. Dak. 317 (70 N. W. Rep. 271). The fraudlent character of a conveyance executed with an intent to defraud creditors is not changed by the fact that the grantee subsequently advances money to the grantor with the understanding that he is to be reimbursed out of the property. Head v. Harding, 166 Ill. 353 (46 N. E. Rep. 890). A deed which, when drawn, was intended by the grantor to operate to put his property out of the reach of his creditors, will not be set aside as fraudulent if it appears that, at the time of its delivery and acceptance by the grantee, the sole object of both the parties to the instrument was that it should be held by the grantee as security for the payment of a debt due from the

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