Gorton v. Massey

By the Cowt

McMillan, J".

The defendant in error, the plaintiff below, is a simple contract creditor, and as such, *147 comes into a court of equity, and seeks to set aside a conveyance of land as fraudulent, and have the grantee declared a trustee of the premises for his use, &c., under the statute. Comp. Stat., page 382, secs. 7, 8.

A fraudulent conveyance, so far as creditors are concerned, can be avoided by them, only after they have obtained judgment. The defendant in error, being a simple contract creditor merely, cannot in this action obtain the relief he seeks. He must first obtain his judgment at law, and then invoke the aid of a court of equity in his behalf. McCartney vs. Bostwick, et al., 31 Barb. Rep., 390; 1 Am. Lea. Cas., page 45, 4th ed; Hastings vs. Belknap, 1 Denio, 191, 198.

"We see nothing in the facts of this case, upon which the claim by the defendant in error, of a vendor’s lien upon the premises, can be sustained. As these views dispose of the present action, the further points in this case need not be considered.

The judgment below is reversed, and the cause remanded for further proceedings.