The Somerset reporter., 1903-05-07
A Somerset Case.
The following rescript of Somerset
case has recently been received by W. 7.
Seekins, clerk OF courts:


case has recently been received by W. 7.
Seekins, clerk OF courts:
J. w. Fletcher ct ais in equity,
Fred futile ct al.
Rescript by Wiswen, {. !.
Where the title to real estate was once in
debtor but has been conveyed by him tor
the purpose of defrauding his creditors, an
attachment may be made by creditor and
the property subsequently seized upon execu-
tion precisely as if no such conveyance had
been made or attempted, conveyance under
these circumstances being regarded as void
as to a creditor who was intended to be de-
frauded After title has been acquired by
the levying creditor, he may maintain an
action at law to recover possession OF the
premises, or he may resort to equity to have
the apparent cloud upon his title removed.
But where the debtor has never had the
legal estate, but has paid the purchase money
and caused the land to be conveyed by a
third person to his wife, or 10 somebody else,
he has never had any title that can be seized
or taken on execution. In such case the
creditor must resort TO equity IN order to take
property standing in the name OF the wife,
which, under the statute, may be taken as
the property Of the husband to pay his debts
contracted before such purchase.
The only object of an attachment OF prop
erty upon mesne process IS to obtain lien
upon the property attached which will con.
tinue until final judgment is obtained, and
which may then be enforced by seizure
upon the execution. Real estate which can
not be seized upon execution cannot be at
tached upon mesne process in an action at
common law.
The compliments commenced common
law action against futile and attempted to
make an attachment thereon OF certain real
estate, the legal title to which was never in
the defendent. but which, it is alleged was
bought and paid for by him, and which he
caused to be conveyed to his wife for the
purpose of defrauding the compliments who
were existing creditors at the time, he being
at that time insolyent. While that action
was pending, but more than four months
after the attempted attachment, the defend
ant in that action filed his petition in bank
ruptcy, was subsequently adJudged bankrupt
and stiil later received his discharge.
Thereupon, the plaintiffs discontinued as to
the defendant, the cause Of action being one
that was provable in bankruptcy, but took
judgment against the property claimed to
have been attached. Execution was issued
upon this judgment upon which the plaintiffs
caused the property claimed to be attached
to be seized and sold by the sheriff at public
auction. The property was bought in by the
judgment creditors the complainants in this
bill who then commenced this bill in equity
in which they seek to have perfected the title
thus attempted to be acquired by the seizure
and sale on execution.
Held That the attempted attachment
was Intellectual; and that as the Judgment
recovered by the complainants was only
against the property claimed to have been
attached, and as there was no property at
tached, the complainants are not entitled to
the relief sought Tor.
Exceptions overruled.
Demurrer sustained.