The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1866-11-22

"a w Ham u Vaa@er
Goo Co. Henderson e, ct al
Error 10 he chaHocg Court of Monroe
CoaHty
HoNkH r ELLETT DELIVERED IHt ofINI""
or Tlm COURT
Pho plaintiff in error on the 3-th Of eprh
Wv. 1860. iled q bill In fhc Chnncety Nnult
Nj Monroe county against George W Hen.
derson aud othors, alleging that 90 we Gun
OF May. 1855. be bad recovered Judgment
against the defendant Ia error, Henderson
aud r. NJ. Rogers, aud H. II. Dalton, Tor
SOS 90, which remained wholly unpaid
That on the 9th Of May, 1857, said Iirli.
dersou had conveyed certain slaves ~ saih
II NJ Rogers in trust for said Henderson
wife. That the said Henderson was lnhol-
vent al the time and that the said convey
hnee was voluntary aud without consdeiA-
tion. and WAS made TO hinder. delay ana DC
fraud his creditors That The pretended con
alterations expressed ~ ting said conveyance,
had no existence That the slaves relhaihed
IN tho possession 81 said Henderson uptil ~
TOR the death OF his wife, whom The deiend.
ant Y. Nj Rogers, WAS appouled Ruhla'ah ~
his children and took the slaves INTO pos
4 session That plaintiff ia error, on the %vth
Of October. 1859 sued out execution upon
said Judgment. and there being no 'ln'i
proporty on which levy could be maze hald
execution was levied on SAID slaves bHi ~
sale has been made on account Oh Tue eiuH''
and iueuuthfauce ON the title. created bN the
said decd from Henderson to T. N h"F'iHt
on account Of which nothing rould naNV
S been realized by q sale Tho bill pta}a that
tttc said deed may Dee declared ifhutlncht
and void aud for other fcllel
Tho defendant demuIrcd to the hill ioi
several canAes all amounting W eject /" th'"'
to.wit. thnt a. complainant did not an'gn
tbc insolvency of r. NJ, Rogers aud X ",
Dalton. two OF the defendants 20 The ofiRr
nal Judgment Of law, there waH no adequate
remedy at law, aud no necessity TO resort 10
equity for relief ....,i ~.
i missed the bin. from which decree the com
plainnnt brought this writ OF error
iii universally agreed that creditor can
not 90 into a court Of equity 10 HulJect egul'
table assets OF chooses In dQitoH, not subltel 10
he takbn upon execution 10 the payment OF
bfa debts. until ho has first obtained jung
mont nj law upon his debt, aud issued exc
cpfion and had "A return of paild bona Tar
Nd N Harris. n al. II S. a NJ 360i Brorn
~. The Bunk of MeasspPt ~ Miss, ao7
Aud where property LEGALLY liable to exc
cnton has been traudulently conveyed "i
incnmbcred the application 10 ehhhe"fS Is
Ia remove an obstruction which prevents a
lea,,l lain from operating upon the property
and ia such case tho better optnioh seems "
be- that the creditor need only proceed ~
law 10 the extent necessary 60 give nm =
complete title aud that n Judgment whlei
operates "a d loin upon the property s"hRh
10 he changed would be suiheient llliHhWi
vs. Drane, 10 s. n NJ 51d befrylnan VS. SUI
Hynn. las q NJ Ga; Fowler ys. Mccartney
b. Miss 5ngi snodpfass W. Andrews, ~
Mss 40; American Leading CaNeH, w ~
NateA ia Iextnu VA Wheaton, and Salmon
ys Bennett, aud cuscs cffc'fs
Conyeyances of property made with intent
10 hinder delay or deiraud creditors, arg oe
rlared, lv the statute of frauds, to ho clear
h. and utterly void aa against the creditors
affected by them. The right OF the 1ndgmen
creditor 10 levy his execution upon properly
Ha conveyed. aud 90 proceed NJ law 10 sun
ieot 1t 10 sale for the satisfaction OF his debt
cannot be denied, without any reference Il
the question whether the debtor PossesS'
other property or whether there are "the
defendants having property liable To IN
same Judgment In other words, II Ia no
NECESSARY In order to Justify the levy of al
execution mon property naudulontlN con
veyed, that The plaintiff sbonld snow, or INA
The facts should exist, that neither the pal
IL who has madu such conveyance, nor ~
codelondauts in the Judgment have othe
property upon which levy can be mhu'
I'VE do not mean to say that every yoluntnr
meaning of the statute. The plaintill makln
a levy on the property, undertakes the =
sponsihility of showing that, upon the oi
onmstnnoes of the particular case, the tran
action Is one which tho law viii not san
tion
In the present case the levy has heen mad
on the pfaperty alleged 20 have beon lland'
lontly transferred, aud the platntii come
into 4 court of equity TO have the oonNo
~sance set aside rs cloud OF inonmbrah'
upon the title preventing sale ol u Tor :
value. His right 60 do SO seems to be cieal
for although the property might be sold
ia present situation on the execution at lhN
vet equity will not require the creditor
eell doubtful or obstructed title al law, hl
will set aside the conveyance, aud rcmoN
The distractions 60 fair sale Fowler n
Mccartney. Va Miss, SIC; Am, Lead. Gas
81
Tho demurrer admits the fraud charged !
the bill, aud in our opinion onght to nav
been disailowed aud the defendant require
10 answer. The decree will therefore ho 4
yersed, aud the cause remanded for such pm
oeodinrs in the court below, IN contoriml
with this opinion, as under present circuu
stances may be advised