Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1914-04-18
Supreme Court
, From Cass County.

'ff ~~~
l.. G. johnson, as Administrator OF
=. the; Estate of John Rutherford, De,
ceased, Appellant,
Mary Rutherford, Respondent.
L.. c. Johnson, as Administrator of
tho Estate of John. Rutherford, De-
ceased, Respondent,
~, ~ VS..
Mary Rutherford, Appellant.
This Is a creditors bill in equity
to obtain a, decree that the real and
personal. property, formerly belonging
to John Rutherford, deceased Grams.
,ferred by deeds and bill Of sale to- his
wife one day before he died), Is Il
part of the decedent's estate and sub
ject to administration, and that this
transfers were made in fraud Of
creditors. Held:
"a Where such transfers are made
without valuable consideration and
to avoid administration, though with
no specific intent In the grantOr or
grantee to defraud the grantor's cred
itor's creditors, but when the convey
,ance Invested the grantor of all his
property, rendered his estate insOlv.
ent and operated to defeat the col
lection Of debts owing he decedent,
the co%nveyances must he held to
have been made in fraud of creditors.
>, 80. Fraudulent Conveyance.
(2) A fraudulent conveyance vests
in the, grantee, who takes tho
property subject to its being cllarg-
ed by administration proceedings,
aided by an equitable action as this,
with any debts owing by the estate,
for the payment of which the prop
erty Or it's proceeds may le taken.
go In. taking the property for
such purposes resort should be had
first to the personally, and then, for
any deficiency unpaid, to the realty.
o. The decree in equity, holding
property thus subject to payment of
debts, to be, established by county
court administration, should desig.
nate the claimant and adjudge; tina,
his claim has been approved by the
county court for a stated amount,
THAT the plaintiff suing has been ap.
pointed the personal repres antative
and maintains the action for the ben
eft of. said claimant, the facts con-
corning the transfer and the insolv.
ency thereafter OF the grantor ana
his estate, that the transfer was in
fraud of creditors, the identity of the
property conveyed, and the order in
which IL may be resorted to and alp:
piled, and that the am is subject to
the payment of the approved claim
exhibited in. the creditors bill, with
administration costs Of its collection;
and by interloculory decree require
and direct the property to be held in
status quo subject to the final de-
termination of the debt in the course
Of administration, whenever it shall:
appear that the grantee in good faitl,
to litigate in probate court
the validity of the debt on which
the claim is asserted. After the fina,
determination Of the county court on
The validity of, the debt a final de-
cree in this equitable action may be
entered, dealing with both the prop
erty and the costs of this action on
trial and on this appeal.
; "' Indebtedness Net an Issue.
90 The question of the indebted
less of the estate to the claimant,
and the amount Of such Indebtedness,
ii any. cannot he an issue in the
equitable action, and the judgmen:
in such action should net pass upon
such! question or find such indebted
ness, but leave that for the deter
mination of the county court Or the
district court. on appeal taken.
,l(6) The county courts record of
the appointment Of the administrator,
and its approval of the creditors
claim against the estate, SO war as
the district court action is concerned.
fncontestably establishes The power
of the plaintiff to sue, and that there
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