An attaching creditor may sue in equity to set aside a fraudulent conveyance. (Civ. Code, secs. 3439, 3441; Case v. Beauregard, 101 U.S. 688, 690; Heyneman v. Dannenberg, 6 Cal. 376;Scales v. Scott, 13 Cal. 76; Conroy v. Woods, 13 Cal. 633;Bickerstaff v. Doub, 19 Cal. 109, 113;Castle v. Bader, 23 Cal. 76, 79; Miller v. Kehoe, 107 Cal. 340; Klous v. Hennessey, 13 R.I. 332; Adams v. Paige, 7 Pick. 542; Hall v. Eaton, 25 Vt. 458; Hull v. Stryker, 27 N.Y. 596, 601; Frost v. Mott, 34 N.Y. 253.) 65 Am. Dec. 519.
(Sto. Eq. Jur. Secs. 349, 377; Heyneman v. Dannenberg , 6 Cal. 376; Adams v. Woods , 8 Id. 156.
Wm. T. Wallace, for Respondents, cited Heyneman v. Dannenberg, (6 Cal. 376,) as to their right to maintain the suit, and upon the point that the judgment in favor of Scott was far too much, even conceding it to have been bona fide, in fact, Taaffe v. Josephson, (7 Cal. 352; ) 12 Pick. 388; 3 Met. 44; (10 Cal. 227.) Plaintiff was entitled to a decreeon the admission in the answer that the note for which judgment was confessed drew interest from date, although it was given for money loaned at different times, some of them being subsequent to the date of the note.
In support of the demurrer, the defendant cites on this point, High, Inj. Secs. 26, 27, 94, 150; Martin v. Michael, 23 Mo. 50; and Shufeldt v. Boehm, 96 Ill. 560. But in my judgment the argument and weight of authority support the right of the attaching creditor to maintain this suit. It is so held in the following cases: Tappan v. Evans, 11 N.H. 311; Williams v. Michenor, 11 N.J.Eq. 520; Robert v. Hodges, 16 N.J.Eq. 299; Curry v. Glass, 25 N.J.Eq. 108; Davis v. Dean, 26 N.J.Eq. 436; Heyneman v. Dannenberg, 6 Cal. 376; Scales v. Scott, 13 Cal. 76. In Tappan v. Evans, supra, 327, the rule deducible from the authorities was stated as follows:
Equity has concurrent jurisdiction with courts of law in cases of fraud, and may retain the case for full relief. (Bradley v. Bosley, 1 Barb. Ch. 125; 1 Story's Eq. Jur., 30, note; Bigelow on Fraud, 59; Bispham's Principles of Equity, p. 53, note 1, p. 57; People v. Houghtaling , 7 Cal. 348.) Equity has jurisdiction if the remedy at law is not plain, adequate, and complete. (Bispham's Principles of Equity, sec. 37; Story's Eq. Jur., sec. 33; Pomeroy's Eq. Jur., secs. 139, 181, 231; Jones v. Newhall , 115 Mass. 244; 15 Am. Rep. 97; City of Hartford v. Chipman , 21 Conn. 488; Scott v. Scott , 33 Ga. 102; Alverson v. Jones , 10 Cal. 9; 70 Am. Dec. 689; Heyneman v. Dennenberg , 6 Cal. 376; 65 Am. Dec. 519; Chard v. Stone , 7 Cal. 117; Hickman v. O'Neal , 10 Cal. 294; Ford v. Rigby , 10 Cal. 450.) JUDGES: In Bank. Thornton, J. Works, J., Paterson, J., Sharpstein, J., McFarland, J., and Beatty, C. J., concurred.
There is also another objection to the complaint, that it does not aver or show that the plaintiffs have acquired any lien upon the property they seek to reach and have applied in satisfaction of their debts, or that they have obtained judgments on their debts on which executions have been issued which have been returned no property found. (Heyneman v. Dannenburg , 6 Cal. 376; Thornburgh v. Hand , 7 Id. 554.) The complaint does not state whether the property levied upon by the Sheriff was real or personal, or consisted of both kinds; nor does it aver that the attachments issued by the plaintiffs were ever levied upon the property by which they would have acquired an attachment lien.
Any other competent proof would be equally efficient. The law does not require a vain thing, and to issue an execution against a person insolvent would be idle. (Heyneman v. Dannenberg , 6 Cal. 376.) So, the objection, that the consideration of the notes was made up of both personal and real estate, we think not well taken.
The course pursued by the respondents has been repeatedly sanctioned by this Court. (See the case of Baker v. Bartol , 6 Cal. 483; Heyneman v. Dannenberg , 6 Cal. 376; Ryan v. Daley , 6 Cal. 238; 1 Story's Equity, secs. 546, 547; Drake on Attachments, 775.) This is the rule in Virginia.
In some of the earlier cases language was used to the effect that a creditor could not attack a fraudulent transfer until he had exhausted his remedy by judgment, execution and return of nulla bona. ( Heyneman v. Dannenberg, 6 Cal. 376; Bickerstaff v. Doub, 19 Cal. 109 [ 79 Am. Dec. 204]; Castle v. Bader, 23 Cal. 75.) In the later cases, a distinction is made in accordance with the form of the action.
Appreciating the impossibility of obtaining a valid personal judgment against a nonresident in actions of this character, some courts have held that an attachment lien will suffice in that it gives the court jurisdiction to take the seized property and apply it toward the payment of the debtor's obligation. Thus, in Heyneman v. Dannenberg, 6 Cal. 376 [65 Am. Dec. 519], in a case decided before the adoption of section 3441 of the Civil Code, the supreme court said: "A court of equity will take jurisdiction of a bill for an injunction filed by attaching creditors of an insolvent, to restrain proceedings on execution against the property attached under a judgment against the debtor, in favor of another, alleged to have been obtained by fraud, where all the material allegations of the bill, except fraud, are admitted," and then, considering the question of courts having held the necessity of a previous judgment having been obtained, further said, "the modern decisions of some of the courts of the United States, seem, however, to have relaxed the severity of the English rule, and in some cases it has been held that a creditor who has acquired a lien under the attachment laws of a State may apply to a Court of Chancery without first proceeding to judgment." In Aigeltinger v. Einstein, 143 Cal. 609 [101 Am. St. Rep. 131, 77 P. 669], the