Thayer v. Willet, Sheriff.

process being the same, the authority to take is also the same, except where the statute has provided otherwise. (Pratt v. Wheeler, 6 Gray, 520; Handy v. Dobbin, 12 Johns. R., 220.)

This is a remedial statute, and is to be construed liberally. (Roberts on Fraud. Conv., 542.)

V. There are occasionally general expressions used by the judges, to the effect that in order to enable the creditor to attack the fraudulent conveyance, he must have first established his debt by a judgment and execution. But in none of these cases has the creditor claimed under an attachment, or any process by which the property of the debtor is made immediately or ultimately liable to be appropriated in satisfaction of the debt. They claimed, not as creditors who had pursued their legal remedies, and had the property placed in custodia legis, acquiring a lien, but merely as creditors at large, as in Andrews v. Durant, (18 N. Y. R., 496,) and Reubens v. Joel, (3 Kern., 488,) or were like the cases of Frisbey v. Thayer, (25 Wend., 396,) and Hastings v. Belknap, (1 Denio, 190,) in which a landlord proceeded, not as a creditor, but with a distress warrant under a special statute. His rights as a creditor are entirely distinct. (See Mr. Nash's points, submitted herewith.)

VI. The Courts of this State have uniformly held, that the officer could, under an attachment issued, pursuant to the statute relative to absconding and fraudulent debtors, attach and seize property in the hands of a fraudulent vendee, and maintain his lien upon it until judgment and execution. (Noble v. Holmes, 5 Hill, 194; Van Etten v. Hurst, 6 id., 311; Halsey v. Christie, 21 Wend., 9; Cross v. Phelps, 16 Barb., 502; Miller v. Brinkerhoff, 4 Denio, 118; Van Kirk v. Wilds, 11 Barb., 520; Clute v. Fitch, 25 id., 428; Batchellor v. Schuyler, 3 Hill, 386; Falconer v. Freeman, 4 Sand. Ch. R., 565; Handy v. Dobbin, 12 Johns. R., 220; Wilson v. Forsyth, 24 Barb., 119.)

There is no difference between the rights of the officer, whether acting under an attachment issued pursuant to the Code, or under the statutes previously in force. The provisions of the different statutes are substantially alike in this respect.

VII. The decisions of the Courts of sister States, where the attachment is resorted to as one of the modes of legal proceeding to enforce the payment of debts, distinctly declare the right

Thayer v. Willet, Sheriff.

of the officer to seize the property in the possession of the fraudulent vendee. (Damon v. Bryant, 2 Pick., 411; Pratt v. Wheeler, 6 Gray, 520; Owen v. Dixon, 17 Conn., 492; Angier v. Ash, 6 Foster, 99; Halsey v. Whitney, 4 Mason, 206, 211; Warner v. Norton, 20 How. U. S. R., 448; Tappan v. Evans, 11 N. H. R., 311.)

VIII. Upon principle, as well as upon authority, an attaching creditor can compel an officer to levy upon property in the possession of a party other than the debtor, where such party claims under a transfer from the debtor which is fraudulent and void as against his creditors. The statute relative to fraudulent convey. ances does not say that the transfer shall be void only against judgment creditors; on the contrary, the transfers are void as to all creditors who signify their election to treat them as void, by adopting the process which the law provides, to enable him to avail himself of the property thus fraudulently transferred, so as to have it immediately or ultimately applied to the satisfaction of his debt. This is the class of persons referred to in the sta tute as creditors. Our law, beside the judgment and final execution, has provided the attachment process, whereby the creditor does not avoid the transfer immediately, but he can acquire the right, in certain cases provided by law, to have the property placed in custodia legis pending the action. (Jackson v. Myers, 18 John. R., 425; Owen v. Dixon, 17 Conn., 492; Halsey v. Whitney, 4 Mason, 206-211; 2 R. S., 136; Clapp v. Leatherbee, 18 Pick., 131.)

1. The statute which requires the Sheriff to retain the property seized under an attachment where a claim is interposed, and an indemnity given against the claim, is an affirmance of this view. The Sheriff can retain the property, notwithstanding the claim, even where no indemnity is given. (Chamberlain v. Beller, Ct. App., notes of decisions; Bachellor v. Schuyler, 3 Hill, 386; People v. Schuyler, 4 Comst., 173.)

2. We are further sustained by the fact, that one ground for granting the attachment is, that the debtor has fraudulently transferred his property.

3. If the right to attach does not exist where the debtor has made a fraudulent transfer, then the debtor has only to vest the legal title to his property in another by the most fraudulent con

Thayer v. Willet, Sheriff.

trivance known, and betake himself beyond the jurisdiction of the Court, and the property will be fully protected.

4. Where the summons is not personally served on the debtor, the judgment recovered by publication only allows the property attached to be applied on the judgment. (Thomas v. Merchants' Bank, 9 Paige, 216, 218; Corey v. Cornelius, 1 Barb. Ch. R., 571; Cochran v. Fitch, 1 Sand. Ch. R., 142; Martin v. Dryden, 1 Gilm., 188.)

IX. It is true that a Court of Chancery will not ordinarily lend its aid to a creditor, to obtain satisfaction of his debts out of property not liable to be levied on by execution, unless he show an execution on his judgment returned unsatisfied. This has been the rule in England, where the remedy by attachment has not until very recently existed. The only attachment process which has existed there, has been that issued under the custom of London, the object of which was to procure the defendant's appearance, and when he did appear, and put in special bail, the attachment had served its purpose, and was of no further use. Here, however, we are acting under a power conferred upon a creditor by statute, who is pursuing his rights in a Court of law. We seek the benefit of a specific lien. But the Court of Chancery, on a bill filed to remove a fraudulent obstruction, always, where the attachment process has existed, recognized the lien acquired by an attaching creditor on the property fraudulently transferred, and the lien of the judgment, when recovered, related back to the time of levying the attachment. Wherever the law gives a lien, the party can go into chancery whenever necessary to obtain the benefit of it. (Wilson v. Forsyth, 24 Barb., 119; Falconer v. Freeman, 4 Sand. Ch. R., 565; Scott v. McMillen, 1 Littell, 302; McElwain v. Willis, 9 Wend., 548; Tappan v. Evans, 11 N. H. R., 311; Kittridge v. Warren, 14 id., 509; Hunt v. Field, 1 Stock., 36; Stone v. Anderson, 6 Foster, 506; Drake on Attachment, 225, 2d ed.)

X. The necessity which is referred to by the Court, in the opinion in Hall v. Stryker, of producing the judgment, where the officer justifies a levy under execution, against the claim of a third person, is to show, first, that he is a creditor, and, second, that he has valid process. This necessity of establishing both of these grounds in the case of an attachment is conceded, and

Thayer v. Willet, Sheriff.

were offered to be proven on the trial in the only mode in which it can be done.

XI. The argument drawn from the inconvenience of having two issues upon the record, 1st, as to whether the party is a creditor; and, 2d, as to the fraud, is not entitled to any weight. It is not unusual to have a double issue, so to speak. Suppose goods which have been fraudulently purchased are afterwards found in the possession of a third person who claims as a bona fide purchaser. Two questions must be tried, 1st, original fraud, and yet the original vendee is not before the Court; and, 2d, as to bona fides and want of notice in the second purchaser. If hardships, they must be endured, in order to promote the administration of justice. (Hunt v. Field, 1 Stock., 36, 39.)

The exception should be sustained, and a new trial granted.

E. & E. F. Brown, for plaintiff.

I. No foundation was laid for proving the attachment and preliminary proceedings.

The plaintiff had shown a bill of sale to him of the property, prior to the attachment, payment of the consideration of the sale, and actual possession taken, leaving no doubt that the transaction was valid betw he parties; that plaintiff's title was good as against Perkins.

II. The plaintiffs in the attachment suit have not recovered judgment against Perkins, and never may; and if the doctrine, as contended for by the defendant's counsel, be the law, the Sheriff (should the Rosenthals fail eventually to obtain judgment) might keep the property of the plaintiff, which he has attached, without accountability to any one.

In the first place, Perkins could not recover either of him or the Rosenthals, for the plain reason that long before the Sheriff attached the property, he had sold the same to Thayer, and received the full purchase price, and delivered possession thereof.

Again, the Rosenthals could not recover of the Sheriff after failing in their suit against Perkins; because, first, they would have no debt or judgment to be satisfied, or on which it could apply, and would not be accountable over either to Perkins or Thayer. And, lastly, if Thayer should sue the Sheriff for the property a second time, after failing to recover in this action, the

Thayer v. Willet, Sheriff.

Sheriff might successfully plead the determination of this action for the same property in bar of any recovery on a second suit. (Embury v. Conner, 3 Comst., 511.)

In such case the Sheriff would hold the property as a kind of godsend, illustrating very clearly the unsoundness of the doctrine contended for by the defendant's counsel and claimed to be law.

· III. In point of fact, no evidence was excluded that could by any possibility have varied the plaintiff's case, or his right to recover, unless the defendant had also controverted some of the facts established by the plaintiff.

No evidence being given, or offered to be given, to disprove the case so made by the plaintiff, the evidence offered was wholly immaterial.

IV. But the main ground relied upon, is, that the defendant, without first showing a judgment, was not in a situation to attack the sale of Perkins to plaintiff, after he had shown a title good as against Perkins. (See the following authorities: Jackson v. Cadwell, 1 Cow. R., 622; Parker v. Walrod, 16 Wend., 514; High v. Wilson, 2 John. R., 46; Frisbey v. Thayer, 25 Wend. R., 396; Cow. Tr., vol. 2, p. 287, and cases there cited; Crippin v. Hudson, 3 Kern., 161; McElwain v. Willis, 9 Wend., 548; Cow. & Hill's Notes, 739, 1079-1082.)

The cases above cited all hold that the defendant, to justify, must have a judgment before he will be allowed to attack a sale, good as against the vendor, but claimed to be fraudulent as to creditors.

The rule in equity has been uniform, that before a conveyance, good as between the parties, can be assailed by creditors, the party assailing must be a judgment creditor. (Crippin v. Hudson, supra.)

There is not a case to be found under our attachment laws, where the question involved in this case has been distinctly presented and decided.

The case of Van Etten v. Hurst, (6 Hill, 311,) arose on demurrer to a plea of justification of the taking of property under an attachment from a Justices' Court. The plea was held to be bad on two grounds: First, because it did not allege that the defend ant in the attachment was a non-resident of the county; and,