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Thayer v. Willet, Sheriff.

secondly, because it did not allege that the plaintiff in the attachment was a creditor of the defendant.

Justice BRONSON, who delivered the opinion of the Court, says, that "to attack the sale on the ground that, although it may be good as between the parties to it, it was fraudulent and void as against creditors, the party must show a judgment as well as an execution."

The decision of that point was all that was necessary to be decided in that action to show that the plaintiff was entitled to judgment on the demurrer.

It is true that Judge BRONSON adds, (obiter,) that when the proceeding is by attachment, "they must show that the Justice had jurisdiction, and that the process was regularly issued;" but as the remark was unnecessary to the decision of the question, it is not an authority to show that a simple contract creditor, without a judgment, could attack the title of the vendee of property, having a title good as against the vendor, but claimed to be fraudulent as against creditors.

The rule at most is a rule of protection in behalf of officers in making their defense; but when they bring suit for the recovery of property attached, they are bound to show a valid judgment and valid process. (Earl v. Camp, 16 Wend., 562.)

The case of Noble & Eastman v. Holmes, (5 Hill, 194,) does not decide that a simple contract creditor, or one claiming to be such, can attack the sale of property by his debtor, good as against him, but is an authority for the plaintiff.

If a creditor wishes to impeach the sale of his debtor's real estate, on the ground of its being fraudulent as against creditors, he may sell the land on execution, and after obtaining a deed, bring ejectment for the land, and thus raise the question of fraud; or he may file a bill against the debtor and his fraudulent grantee, and try the question of fraud in that way; but in either case he must first obtain a judgment. Cases of the latter kind have been of frequent occurrence; but it is believed that no case can be found where a plaintiff in an attachment suit was ever allowed to sustain a bill to set aside a conveyance good as against the grantor or vendor, before he had obtained a judgment.

If the Sheriff can try the question of fraud against creditors in this suit, without first showing a judgment, such a bill might Bosw.-VOL. V.

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Thayer v. Willet, Sheriff.

have been filed by the attaching creditors before judgment, and the fact that no other than an alternative decree could be made in such suit, proves the soundness of the rule established by the Courts, that judgment creditors only can attack a sale alleged to be fraudulent as against creditors.

The fact that such a contingency might arise, shows the necessity of the rule adopted by the Court in this case. (23 Wend., 480; Brinkerhoff v. Brown, 4 John. Ch. R., 671; Clarkson v. Depeyster, 3 Paige, 320; Cuyler v. Moreland, 6 id., 273; Beck v. Burdet, 1 id., 305.)

The last four cases cited above were creditors' bills filed after judgment.

It is held, however, in McElwain v. Willis, (9 Wend., 548,) that where the bill is filed to remove a fraudulent obstruction, it must show that the property is leviable at law on execution.

There must always be a judgment as the foundation of such a suit; but even a judgment and execution, returned unsatisfied, rendered in another State, or in the United States' Court, will not authorize the filing of a bill. (Tarball v. Griggs, 3 Paige, 207.)

Where proceeding is by attachment to obtain judgment, a creditor's bill will not lie even after judgment obtained. (Thomas v. The Merchants' Bank, 9 Paige, 216; Corey v. Cornelius, 1 Barb. Ch. R., 571.)

We submit to the Court that the exceptions of the defendant should be overruled, and a new trial denied.

PIERREPONT, J. This case presents the single question whether a Sheriff, acting under a warrant of attachment, regularly issued in an action, pursuant to the provisions of the Code, and who has attached property in the possession of a vendee, claiming title under a bill of sale from the debtor, can show in defense of a suit against him by such vendee, to recover the property, that the alleged sale was fraudulent as against creditors.

By section 227 of the Code, an attachment may be issued: 1. Against a foreign corporation.

2. Against a non-resident..

3. Against an absconding or concealed debtor.

4. Against a defendant who is about to remove his property from the State.

Thayer v. Willet. Sheriff,

5. When he has assigned, or disposed of, or secreted, or, 6. When about to assign, or dispose of, or secrete his property, with intent to defraud his creditors.

The warrant may issue when, by affidavit, it shall appear that a cause of action exists against the defendant, and the grounds and amount of the claim are specified, &c. (Code, § 229.)

Before issuing the warrant, an undertaking with sufficient surety is required. (§ 230.) And the warrant shall be directed to the Sheriff, and shall require him to attach and safely keep such property of the defendant as may be sufficient to satisfy the plaintiff's demand, including costs and expenses. (§ 231.) And the Sheriff is required "to keep the property seized by him to answer any judgment which may be obtained in such action." (§ 232.)

If the writ under which the Sheriff took this property had been an execution instead of a warrant of attachment, he could have given evidence that the sale to the vendee, Thayer, was fraudulent and void as against the creditors of Perkins. This proposition is too familiar to require any reference to authorities.

An execution is directed againt the property of the defendant. The same is true of the warrant of attachment. But it is urged that an execution is founded upon a judgment, by which the relation of debtor and creditor is established, while the warrant of attachment rests upon an alleged claim, supported only by ex parte affidavits sufficient to obtain the warrant, and to make a prima facie case which a trial may disprove.

Now, what did the Legislature intend by these provisions of the Code?

When this statute was passed, the law relating to sales and transfers of property, with intent to defraud creditors, had long been in force, and all such sales were void. The Sheriff who had seized property under a fi. fa., might, in an action against him by the vendee of the defendant, show that the title of such vendee was fraudulent as against creditors.

This being the well settled and long established law, the Legislature enacts, that when a defendant "has assigned or disposed of his property with intent to defraud his creditors," an attachment (on proper application) may issue, and the defendant's property be held by the Sheriff to answer any judgment which may

Thayer v. Willet, Sheriff.

be obtained in the action. Did the Legislature intend to say that a fraudulent assignment of a man's property should be a ground for an attachment, and yet that the fraudulent assignee could forthwith take such property from the Sheriff or sue him in trespass, and the Sheriff have no right to set up the fraud in defense of his lien and his right to hold the goods?

A owns a store of goods of great value; just before 3 o'clock he goes to B and borrows $20,000, and gives his check payable the next day. On the following morning A transfers his entire stock of goods to his son by bill of sale, duly executed, for the consideration of one dollar and love and affection. The son takes possession, and the father retires, and refuses to pay his check. B obtains a warrant of attachment on the ground that A has disposed of his property with intent to defraud his creditors. The Sheriff seizes the goods in possession of the son, who thereupon sues the Sheriff for the value of the goods; proves the bill of sale and possession. The Sheriff offers to show the sale fraudulent, but is met with the objection that the transfer as between the father and son is good, and that B is not a "judg ment creditor," and hence no evidence of fraud in the sale can be admitted. In my judgment, the intention of this statute is clear. Its plain meaning is that a creditor, whether by judgment or otherwise, upon giving the requisite bond and making the requisite affidavit, shall have the right to cause the Sheriff to attach the property of the defendant, and keep it to answer any judg ment which may be recovered in the action. A transfer of property with intent to defraud creditors, is void; not void as to judgment creditors alone, but as to all creditors; the statute makes no distinction. A transfer which is void conveys no title. The moment the attachment issues, the plaintiff in the attachment is, prima facie, a creditor, and has, so far as the attachment is concerned, all the rights of a judgment creditor, until his prima facie claim is defeated.

If the plaintiff in the attachment does not prove his claim, he fails in the action, and the Sheriff holds the property ready to be returned to the vendee from whom it was taken, or he responds in such damages as the law awards. But if the plaintiff in the attachment succeeds, and the title of the vendee is adjudged fraudulent, then the property is applied to the payment of the

Thayer v. Willet, Sheriff.

judgment which the attaching creditor has recovered, and no injustice is done, and the intention of the law is satisfied.

Under the statute relating to absconding and fraudulent debtors, attachments have repeatedly been issued, and our Courts seem to have recognized the right of the Sheriff to maintain his lien upon property attached in the hands of a fraudulent vendee until a determination of the action.

In the case of Falconer v. Freeman, (4 Sand. Ch. R., 567,) the Court say: "The complainants, although creditors at large, have acquired a lien upon Freeman's property by this attachment; it is as valid and effective a lien in favor of all creditors as is made in favor of a plaintiff at law by the issuing of an execution, which he is prevented by some fraud of his debtor from levying on movable property."

In Noble v. Holmes, (5 Hill, 194,) Judge BRONSON says: “The sale could not be impeached by a creditor at large. It must be a creditor having a judgment and execution or some other process which authorizes a seizure of the goods.

"As a general rule, process regular upon its face is sufficient for the protection of the officer, although it may have been issued without authority. But when the officer attempts to overthrow a sale by the debtor on the ground of fraud, he must go back of his process and show authority for issuing it. If he act under an execution he must show a judgment, and if he seizes under an attachment he must show the attachment regularly issued."

The same principle was recognized in Van Etten v. Hurst, (6 Hill, 311,) and also very directly by Judge HARRIS in Van Kirk v. Wilds. (11 Barb., 520.)

The case of Warner v. Norton et al., came up by writ of error from the Circuit Court of the United States for the Northern District of Illinois, and the Court held, that

"Where a Sheriff was sued for taking goods under an attachment, which goods had been previously assigned under circumstances which were alleged to be fraudulent, it was proper for the Court to charge the jury, that if they believed from the evidence that the sale was made for the purpose of hindering, delaying or defrauding creditors, it was invalid as against the defendant; and that whether the sale was or was not fraudulent was a question of

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