Levi Woodbury

“ She denied any combination to defraud the creditors of Edward McLaughlin, by undervaluing his personal estate, or selling it higher than the appraisement, or not having it accounted for. She denied the existence of any indebtedness now by Edward McLaughlin, or at his death, as indorser for Sheehy, which existed in September, 1830, and averred that notice of protest was necessary to make him so liable, which had never taken place, and that the deed then given to her was not fraudulent as to the bank. ”

“ When, therefore, in a bill against such a fraudulent grantee, the fraud is averred, as here, and a waste of the personal estate, and the clause is stated to be made on that account, all is alleged which seems necessary for full notice, and for a decree against such grantee, if at the hearing the fraud is substantiated, and the personal assets are proved to be wasted or insufficient. ”

“ The liability of Bridget McLaughlin, if any, was on the administration bond as surety for Sheehy, which could not be enforced by the creditors at large. The doctrine is well settled, in equity, that a suit to set aside a deed of real estate for fraud cannot be maintained until there is a judgment at law. ”

“ A preliminary point to be considered in this case is in respect to the exceptions made at the trial by a jury of the issue at law, sent from the court of chancery, or the equity side of the Circuit Court of the United States. On the return of that issue to the equity side of the court, exceptions to the rulings were not made, or renewed against the correctness of the finding of the verdict, and consequently no opinion on them has ever been rendered by the court sitting in chancery. ”

“ There is no heir to this land, claiming it as heir, in any part of these proceedings, but a grantee of it, claiming by a deed, and which, if fraudulent, still entitles the grantee to hold it as grantee against the heirs of the grantor, of whom there is one other not here, and places the heirs as such entirely out of the As no other question arises on the appeal which is material and has not been arranged in submitting to a sale of the trust property, it is only necessary to add that the judgment below must be affirmed. ”

“ Such a grantee has no protection, like the heir, from want of privity or misconduct, and though he may be, in fact, the heir, as in this case, yet he takes by his deed, prior in tempore, and holds any surplus after paying debts as a voluntary and good grantee in respect to that surplus, and not as heir. ”

“ And it might be very useful to have the views of a jury on it, taking care to instruct them concerning the law, and leaving to their exclusive consideration, as was probably done here, merely the facts as connected with that law. Such feigned issues are not for the assistance of parties so much as of the court. ”

“ But this deficiency need not be alleged to have arisen from the actual payment of debts. Some seem to consider it enough to aver that waste has been committed of the personal estate. 2 Bland, Ch. 347. Others, that it will suffice to state and to show judgment against it and execution unsatisfied. Rhodes v. Cousins, 6 Rand. 190; Liggat v. Morgan, 2 Leigh, 84. The English practice is, not to require any averment that the personal estate is exhausted, but merely to ask the land to be charged, if the personal estate be not enough. ”

“ Story, Eq. Pl. §§ 172-176. Here the collusion and waste are imputed to both the administrator and surety, and the same surety is charged with fraud in the purchase of the land, and this proceeding against them, whatever other remedy may exist, must therefore be deemed proper. Story, Eq. Pl. § 178; 1 Mylne & Keen, 237, 240; 1 Russ. & Mylne, 281, note; 5 Gill & Johns. 432, 453; 2 Rand. 398, 399; 10 Gill & Johns. 65, 100.
The next objection is, that, by the laws prevailing in Alexandria, the first resort for payment of such a debt should be to the personal estate, before going to the real. ”

“ The real estate of McLaughlin could not be sold as long as there was any personalty. Act of Congress, 24th of June, 1812, putting real estate in the county of Alexandria on the same footing with that in the county of Washington. For laws of Maryland, see 1 Har. & Johns. 469; 4 Gill & Johns. 296; 8 Peters, 128.
5th. The complainants rely alone on judgments against the administrator, which we contend are no evidence against Bridget McLaughlin, as grantee in the possession of the property. 1 Mass. ”