#### Hellebush v. Richter.

1. Where, in an action brought by a creditor for the purpose, a conveyance is adjudged to come within the operation of section 17, of the act regulating assignments in trust for the benefit of creditors, the correctness of the adjudication is not the subject of inquiry, 'in a collateral proceeding. *Shorten*v. *Woodrow*(31 Ohio St. 615) distinguished.

2. In a subsequent proceeding, by the assignee, in the probate court, to administer the trust, the probate court is bound by the distribution ordered by the court in the action in which the. conveyance was adjudged fraudulent.

Error to the District Court of Hamilton County.

Gottlieb Richter on behalf of himself and such other creditors of Franz Schoenfeld as might come in and make themselves parties, filed a petition in the superior court of Cincinnati against said Schoenfeld, Dina his wife, and others, under section IT of the act regulating the mode of administering assignments in trust for the benefit of creditors, as amended February 12, 1863 (S. & S. Stats. 39T).

The object of'the petition was to have a conveyance which. Franz Schoenfeld had caused to be made to his wife with intent to defraud his creditors, declared void, and the property subjected to the payment of his creditors as provided for in said section.

Notice to creditors of the pendency and object of the petition was published as required by the statute.

All parties, including the present plaintiff in error, having *223an interest in the property by way of lien or otherwise were made parties.

On February 12, 1873, the following decree, or judgment, was rendered in the cause:

*“*This cause came on to be heard on the petition, answers of Franz Schoenfeld, and Dina Schoenfeld, his wife, the amendment to the answer of Franz Schoenfeld, the reply and testimony, the other defendants being in default, and was argued by counsel and submitted to the court. On consideration whereof the court find as to the facts, by request of the defendants, Franz and Dina Schoenfeld:

1st. That the conveyance made by Charles Hofer to said Dina Schoenfeld, on June 18th, 1869, and recorded in the Eecords of Hamilton Co., Ohio, in Deed Book 367, page 575, of the premises on the corner of Court and Broadway streets, in the city of Cincinnati, Ohio, being the premises firstly described in the petition, was caused and procured to be made by said Franz Schoenfeld.

2d. That the said conveyance was so made and procured to be made to said Dina Schoenfeld, and by her received without any valuable consideration by her paid, or coming from her, but said Hofer acted' honestly and without any fraudulent intent.

3d. That said Franz was at the time largely indebted and in embarrassed circumstances, as he well knew, being indebted to plaintiff as well as to divers other persons.

4th. And that the purpose and intent in causing and procuring said conveyance to be so made, and in receiving the same, was to hinder, delay and defraud the creditors of him the said Franz Schoenfeld.

“ 5th. And the court further find that since the conveyance was so made certain sums have been expended on said premises for improvements and betterments, thereby increasing the value of said premises, and that the parties who furnished the money for the same are secured by mortgage upon said premises, but the exact amount so furnished or still remaining unpaid, if there be any unpaid, is not known, the said parties *224being in default, although served with process and their claims being not set up and established.

“ 6th. The court further find that the Cincinnati German Building Association No. 4 and Charles Hofer have valid mortgages upon said premises, part of which are unpaid, but the exact amount due is unknown, they not having set up their claims to and upon said premises.

“ And the court now coming to state separately the conclusions of law, doth order, adjudge and decree—

“ 1st. That the said conveyance be, and the same hereby is declared to be fraudulent and void.

“2d. That after paying the balance of purchase money due to Charles TIofer, the balance, if any, due to the Cincinnati German Building Association No. 4, defendants, the balance to the defendants James A. S. Clark and Richard Butler, for moneys advanced and used in improvements and betterments upon said premises, if anything still remains due to them on such account, the said premises shall enure to the benefit of the plaintiff, who is still a creditor of the said Franz Schoenfeld for the whole amount of his judgment, less a credit of $95.95, received June 29th, 1872, and the equal benefit of the other creditors who prove their claims 'in accordance with the statute in such case made and provided.

“ 3d. That as to the other property described in the petition, and as to Catherine Morgenthal, who has no lien of record in the premises, this cause is dismissed.

• “ 4th. That out of the proceeds of any sale of said premises, the costs of this action shall first be paid, including reasonable counsel fees for the plaintiffs’ attorneys, then the said mortgagees in their order of priority, and after the plaintiff, who has acquired priority by giving notice of the pendency and object of this suit heretofore duly approved, the'general creditors, the latter pro rata, if the fund remaining is not sufficient.”

After the rendition of this decree, Edward P. Bradstreet was appointed assignee by the probate court, according to the provisions of the statute referred to, and duly qualified as such *225assignee. He took possession of said property and proceeded to administer tbe same for tbe benefit of creditors.

Under proceedings in the probate court tbe property was sold under the order of tbe court, sale confirmed, and tbe proceeds of tbe sale distributed. The distribution ordered by tbe probate court was not made in accordance with tbe decree of tbe superior court; but upon what the probate court found to be tbe merits of the respective claims. Provision was made in the order for the payment of the claim of tbe plaintiffs in error, which bad been disallowed by the superior court.

An appeal was taken to the court of common pleas from tbe order of distribution ; and subsequently the' case was taken on error to tbe district court.

Tbe district court, in so far as relates to tbe questions now before tbe court, affirmed tbe judgment of tbe court of common pleas ordering tbe distribution to be made in accordance with tbe decree of tbe superior court.

Tbe reversal of these judgments is now sought.

Hina Schoenfeldt having died since tbe commencement of tbe proceedings in error, a cross-petition in error is filed by her legal representatives.

*Long, Kramer & Kramer,*for plaintiffs in error.

Wm. *Disney,*for defendant in error Hina Sehonfield.

*G. B. Okey*and *J. Li. Challen,*for defendant in error Gr. Richter.

White, J.

There are only two questions in this case on which-tbe court deem it necessary to report its decision.

1. Whether tbe effect of the decree of the superior court, in *Richter*v. *Schoenfeld*was to bring tbe case within section seventeen of tbe act regulating tbe mode of administering assignments in trust for the benefit of creditors, as amended Eeb. 11, 1863 (S. & S. 397).

2. And if so, whether tbe order of tbe distribution of the proceeds of tbe sale of tbe property as determined by tbe superior court was conclusive upon tbe assignee and tbe probate court, in administering tbe trust.

*226Both, questions, in our opinion, must be answered in tbe affirmative.

As to tbe first. Tbe finding and judgment of tbe superior court are not under review in tbis proceeding. That court bad jurisdiction of tbe subject matter and of tbe parties, and tbe correctness of tbe finding and judgment cannot here be questioned. While tbe judgment remains unrcversed it operates, between tbe parties, as a conclusive adjudication of all questions botb of law and fact determined by tbe court.

Tbe action-was brought by Richter under tbe seventeenth section of the act referred to, and tbe proceedings were conducted in accordance with its provisions.

By tbe judgment or decree of tbe superior court, the conveyance was adjudged to be of tbe character provided for in tbe section; and tbe proceeds of tbe sale were ordered to be distributed as required by it. Whether tbis adjudication was ©rroneous or not can make no difference. In either case it has tbe same effect in a collateral proceeding to carry it into execution.

In support of the errors assigned, reliance is placed on tbe decision in *Shorton*v. *Woodrow*(34 Ohio S. 645), where a similar judgment was reversed. But in that case tbe judgment was under review by a direct proceeding in error, and the court finding the judgment erroneous, reversed it. But in the present case, as already remarked, tbe judgment of tbe superior court is not under review on error. It comes in question collaterally; and tbe question is not whether it is erroneous, but what, is its effect as it stands.

As to tbe second question. Tbe probate court was not authorized to inquire into tbe merits of tbe order of tbe superior eourt, marshaling tbe liens upon tbe property or distributing tbe proceeds of tbe sale. The duty of tbe probate court was to see that tbe assignee administered tbe trust in accordance with tbe judgment of tbe superior court, and not to supervise tbe action of that court.

In regard to tbe claim of the plaintiffs in error that tbe appeal from tbe order of distribution of tbe probate court was not duly perfected, it is sufficient to say that tbe question now *227raised was decided adversely to the claim of the plaintiffs, in *Johnson*v. Johnson, 31 Ohio St. 131.

But if it were, otherwise it would not change the result. For, by the proceeding in error the whole .record, including that of the probate court, is before the court, and it would be the duty of the court to reverse the orders of the probate court in so far as they conflicted with the judgment of the superior court.

*Judgment affirmed.*

Boynton, C. J., dissented as to the first question decided.

Okey, J., took no part in the decision of this case.