195; Carr v. Townsend, 63 Id. 202; Day v. Humburgh, 1 Browne, 75; Collins v. Knight, 3 Tenn. Ch. 183; Milam County v. Robertson, 47 Tex. 222; Taylor v. Snow, Id. 462; S. C., 26 Am. Rep. 311; McClelland v. Moore, 48 Id. 355; Holt v. Thacher, 52 Vt. 592; Neale v. Utz, 75 Va. 480; Bigelow on Estop. 63; Freeman on Judg., secs. 140, 153. The following cases, however, maintain a contrary doctrine, and hold that a judgment against a person who was dead at the time it was rendered is absolutely null and void: New Orleans & C. R. R. Co. v. Bosworth, 8 La. Ann. 80; Norton v. Jamison, 23 Id. 102; Edwards v. Whited, 29 Id. 647; Lee v. Gardiner, 26 Miss. 521; Parker v. Horne, 38 Id. 215; Tarleton v. Cox, 45 Id. 430; Young v. Pickens, Id. 553; Colson v. Wade, 1 Murph. 43; Burke v. Stokely, 65 N. C. 569; Carter v. Carriger's Adm'rs, 3 Yerg. 411; S. C., 24 Am. Dec. 585; Morrison v. Deaderick, 10 Humph. 342.

But the chancellor delivering the opinion in the case of Collins v. Knight, 3 Tenn. Ch. 187, after citing the case in 10 Humphreys as authority for the statement that in Tennessee a judgment or decree, either in favor of or against a deceased party to a suit, is an absolute nullity, said: "Our decisions are, upon this point, in conflict with the weight of judicial authority elsewhere: Freeman on Judg., secs. 140, 153, and cases cited." In that case it was decided that although a decree jointly made against a dead man and other parties might be void as to the former, it remained valid as to the latter. Some dicta in prior California cases seemed to indicate that the supreme court of that state were inclined to regard a judgment rendered against a deceased party as a nullity. But in the late case of Phelan v. Tyler, 12 Pac. C. L. J. 39, Sharpstein, J., delivering the opinion of the court, said: "There is nothing in the code which would justify the inference that the death of a party pending an appeal ousts the jurisdiction of the supreme court, and renders its judgment void, unless, before the rendition thereof, a representative of said deceased party be substituted in his stead. This question was not directly involved in Ewald v. Corbett, 32 Cal. 493, or in McCreery v. Everding, 44 Id. 284, although there are expressions in both which militate against the views which we entertain on the subject, and which seem to us to be supported by a preponderance of the authorities." The reason given by Freeman for holding such judgments as we are now considering simply erroneous but not void is: "Because the court, having obtained jurisdiction over the party in his life-time, is thereby empowered to proceed with the action to final judgment; and while the court ought to cease to exercise its jurisdiction over a party when he dies, its failure to do so is an error, to be corrected on appeal, if the fact of the death appears on the record, or by writ of error coram nobis, if the fact must be shown aliunde:" Freeman on Judg., sec. 153. This reasoning was adopted by the court in the case last cited, and has been cited with approval in several recent cases: Milam Co. v. Robertson, 47 l'ex. 233; Neale v. Utz, 75 Va. 486; Hayes v. Shaw, 20 Minn. 407. But a judgment rendered against a party in an action commenced against him after his death, and where no service of process was made upon him in his life time, is absolutely void: Loring v. Folger, 7 Gray, 505; Neale v. Utz, 75 Va. 480.

JUDGMENT AGAINST EXTINCT CORPORATION, EFFECT OF: See the note to May v. State Bank of N. C., 40 Am. Dec. 737, where this subject is consid. ered

GREER V. WRIGHT.

[6 GRATTAN, 154.]

IF PARTY ANTICIPATING JUDGMENT AGAINST HIM FOR SEDUCTION TRANSFERS his property for the purpose of evading the payment of the judg. ment, such transfer will be set aside as fraudulent and void as to the judgment creditor, and the property will be subjected to the satisfaction of the judgment.

WHERE COURT SETS ASIDE ASSIGNMENT OF DEBTOR'S INTEREST IN ESTATE of his deceased father as being fraudulent and void, it may order an account of the personal estate of which the latter died possessed, in order to ascertain to what portion thereof the debtor is entitled. WHERE PARTY FRAUDULENTLY ASSIGNS DEBT DUE TO HIM for the purpose of evading payment of a judgment, the creditor must be made a party defendant to a suit brought to set aside the assignment and to subject the property of the assignor to the satisfaction of the judgment, and the decree in such suit should order the creditor to pay into court the amount for which he is found to be chargeable, to be applied to the judgment.

DEBTOR'S INTEREST IN PERSONAL ESTATE SHOULD FIRST BE APPLIED to the payment of a judgment against him, and if that be insufficient to satisfy it, then his interest in real estate should be sold.

BILL filed by Benjamin Wright against John Greer, Samuel Greer, Nehemiah Smith, and E. S. Evans, late sheriff, to set aside certain assignments of bonds and conveyances of real estate and personal property made by John Greer to Samuel Greer, on the ground that they were made to defraud the plaintiff. The bill charged that the plaintiff recovered a judgment at law for seven hundred and fifty-five dollars and sixty-eight cents against John Greer; that on this judgment John Greer was taken in execution, and took the benefit of the act for the relief of insolvent debtors, without surrendering any property; that at the time he took the oath of insolvency Smith owed him a debt of five hundred and twenty-six dollars, for which he had given him a bond, and that John Greer had, a short time before the rendition of said judgment, to defraud the plaintiff, assigned the bond to his brother, Samuel Greer; that George Gillaspie also owed John Greer two hundred dollars, which he, in like manner and for the same purpose, assigned to Samuel Greer; that John Greer inherited from his father a share in certain lands and personal estate, which plaintiff believed he had also assigned to said Samuel Greer; that all of said property belonged to John Greer when he took the benefit of the insolvent aet, and that the title thereto thereupon vested in Evans, the then sheriff. The bill prayed that said debts and property might be subjected to the payment of plaintiff's judgment, and for gen

eral relief. Both Samuel and John Greer answered, denying the material allegations of the bill. The action in which plaintiff's judgment was recovered was for seduction. The evidence offered satisfied the court that the assignments were fraudulent, whereupon it made the decree, the substance of which is stated in the opinion. From this decree John and Samuel Greer prayed an appeal, which was allowed. The other facts appear from the opinion.

B. H. Smith, for the appellants.

Fisher, for the appellee.

By Court, ALLEN, J. The court is of opinion that there is no error in so much of said decree as declared that the assignments of the obligations therein described upon Nehemiah Smith and George Gillaspie, and the conveyance, if one exist, from John Greer to Samuel Greer, for the interest of John in his deceased father's real estate, were fraudulent, and therefore null and void as against the appellee, a creditor of said John Greer. The court is further of opinion, that there is no error in so much of said decree as directs the commissioner to take, state, and settle an account of the personal estate of which the father of said John Greer died possessed, or which has been distributed, to ascertain what portion the said John is entitled to; and how it has been disposed of. The court is further of opinion, that the residue of said decree, giving a joint and personal decree against the said John and Samuel Greer, for the amount of the judgment at law against said John, and prescribing the mode in which said obligations should be surrendered, and directing a sale of the interest of said John in the real estate of his father, on condition said obligations were not surrendered to the satisfaction of the appellee, is erroneous. The complainant should have been required to make said George Gillaspie a party defendant; to have matured his ease against said Nehemiah Smith and Gillaspie; and if upon the hearing it appeared that the said Smith and Gillaspie were the debtors of said John Greer at the time of such fraudulent transfers, and that the appellee was still entitled to the application of said debts in the hands of the debtors, to the payment of his judgment, there should have been a decree compelling said debtors to pay into court the amount for which they were chargeable, to be applied to said judgment and the costs of this suit; with leave to proceed against the said Samuel for any portion of said debts he may have received, or for which he may by his improper acts or

negligence, have rendered himself chargeable; and for the balance of said judgment and costs of this suit, after the application of the funds derived from the sources aforesaid, the interest of said John in the real estate of his father should have been sold.

It is therefore decreed and ordered, that so much of said decree as is herein declared not to be erroneous, be affirmed, and that the residue of said decree be reversed, with costs to the appellants, and that the cause be remanded, with leave to the appellee to make George Gillaspie a party defendant; and to be further proceeded in according to the principles before declared, in order to a final decree. Which is ordered to be certified.

CABELL, P., and BROOKE, J., absent.

CLAIMS AGAINST WHICH VOLUNTARY CONVEYANCES MAY BE AVOIDED.— Voluntary conveyances, when made with the intention of hindering, delaying, or defrauding creditors and others, have always been regarded with strong disfavor by the courts. And the statutes passed against fraudulent conveyances have received a liberal construction, both in England and in the United States. The word "creditors," as used in the statutes, has not been confined to a narrow or technical signification, but has been construed as embracing all persons who have interests that may be defrauded. Accordingly, it has been held that, although parties are not, strictly speaking, creditors, they may nevertheless stand in the equity of creditors, and be entitled to the protection of the statutes: Walradt v. Brown, 41 Am. Dec. 190; Feigley v. Feigley, 7 Md. 537; Shontz v. Brown, 27 Pa. St. 123; Hutchinson v. Kelly, 1 Rob. (Va.) 123. In Twyne's Case, 3 Co. 80, 82, it is said: "But it was resolved by all the barons that the statute, 13 Eliz., c. 5, extends to it, for thereby it is enacted and decreed that all feoffments, gifts, grants, etc., to delay, hinder, or defraud creditors and others of their just and lawful actions, suits, debts, accounts, damages, penalties, forfeitures, heriots, mortuaries, and reliefs shall be void, etc. So that this act doth not extend only to creditors, but to all others who had cause of action, or suit, or any penalty or forfeiture," etc. See also Alston v. Rowles, 13 Fla. 117; Sargent v. Salmond, 27 Me. 539; Carlisle v. Rich, 8 N. H. 44. And Lord Mansfield, in Cadogan v. Kennett, Cowp. 434, said: "The principles and rules of the common law, as now universally known and understood, are so strong against fraud in every shape that the common law would have attained every end proposed by the statutes 13 Eliz., c. 5, and 27 Eliz., c. 4. These statutes can not receive too liberal a construction, or be too much extended in suppression of fraud." And in the case of Fox v. Hills, 1 Conn. 295, the majority of the court held, that although a voluntary conveyance made to defeat the claim of a third person, for damages arising out of a tort, was not within the provisions of the statute of Connecticut against fraudulent conveyances, yet it was void at common law. But while the law is ever ready to assist the holders of bona fide claims by setting aside conveyances made by their debtors in fraud of their rights, it will not lend its aid to the holders of fictitious or trumped-up claims: Baker v. Gilman, 52 Barb. 26; Townsend v. Tuttle, 28 N. J. Eq. 449. Claims founded upon an illegal consideration will not enable their holders to set aside a fraudulent conveyance:

AM. DEC. VOL. LII-8

Hanson v. Power, 8 Dana, 91; Fuller v. Bean, 30 N. H. 181; Alexander v. Gould, 1 Mass. 165; Bruggerman v. Hoerr, 7 Minn. 337. A claim which is incapable of enforcement is not a sufficient debt to enable the holder to avoid a fraudulent conveyance made by the person against whom he holds it: Hart v. Hart, 5 Watts, 106. Neither is a claim barred by the statute of limita tions: Edwards v. McGee, 31 Miss. 143.

But it was decided in Marshall v. Buchanan, 35 Cal. 264, that if a debtor, in anticipation of a judgment against him, fraudulently conveys his property to another, who is privy to the fraud, with the intent to hinder and delay the creditor, who thereafter obtains judgment and levies his execution on the property in the hands of the fraudulent grantee, but is afterwards induced to release the levy on the false and fraudulent representations of the grantor, and to permit his judgment to be barred by the statute of limitations by reason of similar false representations by the judgment debtor to the effect that he has no property and is insolvent, the creditor, on averring and proving these facts, and that he discovered the fraud but recently before the commencement of the action, is entitled to relief. A creditor who has trusted his debtor after the latter has informed him that he has put his property out of his hands, is not entitled to the aid of the statute against fraudulent conveyances: Baker v. Gilman, 52 Barb. 26. It is an established general rule in Texas, that one who has become a creditor after the making of a fraudulent conveyance, and with notice thereof, will not be permitted to set it aside as fraudulent: Lehmberg v. Biberstein, 51 Tex. 457; Lewis v. Castleman, 27 Id. 407. And in Pennsylvania it has been decided that if a subsequent creditor had notice of the conveyance at the time when his debt was contracted, there could be no fraud as to him: Monroe v. Smith, 79 Pa. St. 459; Snyder v. Christ, 39 Id. 499. A creditor, after his debt has been paid, can not raise the question of fraud in a conveyance by his former debtor: Robbins v. Sackett, 23 Kan. 301. Creditors seeking to impeach a voluntary conveyance of their debtor's property, for intent to defraud them, must allege and prove that when the conveyance was made he had not other property subject to execution sufficient to pay all his debts: Sherman v. Hogland, 54 Ind. 578; Baugh v. Boles, 35 Id. 524; Law v. Smith, 4 Id. 56. A conveyance by a debtor of property which is exempt from execution, although made with a fraudulent intent, can not prejudice the rights of his creditors, and is therefore not impeachable by them: Dowd v. Ilurley, 78 Ky. 260.

CLAIMS FOR DAMAGES ARISING FROM TORTS are almost universally regarded as within the protection of the statutes against fraudulent conveyances. Persons having such claims are treated as creditors within the meaning of the statutes: Barling v. Bishopp, 29 Beav. 417; Fox v. Hills, 1 Conn. 295; Fowler v. Frisbie, 3 Id. 320; Westmoreland v. Powell, 59 Ga. 256; Walradt v. Brown, 1 Gilm. 397; S. C.,41 Am. Dec. 190; Bongard v. Block, 81 Ill. 186; Wright v. Brandis, 1 Ind. 336; Rogers v. Evans, 3 Id. 574; Shean v. Shay, 42 Id. 375; Corder v. Williams, 40 Iowa, 582; Weir v. Day, 57 Id. 84; Hord v. Rust, 4 Bibb, 231; Lillard v. McGee, Id. 165; McLear v. Morgan, 5 B. Mon. 282; Cooke v. Cooke, 43 Md. 522; Clapp v. Weatherbee, 18 Pick. 131; Paul v. Crooker, 8 N. H. 288; Scott v. Hartman, 26 N. J. Eq. 89; Post v. Stiger, 29 Id. 554; Jackson v. Myers, 18 Johns. 425; Wilcox v. Fitch, 20 Id. 472; Pendleton v. Hughes, 65 Barb. 136; Ford v. Johnston, 7 Hun, 563; Martin v. Walker, 12 Id. 46; McErwin v. Benning, 1 Hawks, 474; Miner v. Warner, 2 Grant, 448; Lowry v. Pinson, 2 Bailey, 324; Smith v. Culbertson, 9 Rich. L. 106; Langford v. Fly, 7 Humph. 585; Farnsworth v. Bell, 5 Sneed, 531; Patrick v. Ford, Id. 532, note; Vance ▼. Smith, 2 Heisk. 343; Harris v. Harris, 23 Gratt. 737; Hoffman v. Junk, 51