Citizens' Bank v. Buddig ( 1887 )

Campbell, J.,

delivered the opinion of the Court.

Tbe averment that complainants were before a certain date and are now creditors of the defendants, C. & K.,is sufficient to show a debt due. No objection was made in the court below to the structure of the bill. Its want of definiteness, precision and certainty is called in question by argument here ; but that was not made special ground of objection in the chancery court, and cannot avail here.

The bill presents a case good on demurrer. It avers that complainants were and are creditors of C. & K., and that the arrangement between their debtors and Buddig was made to hinder, delay and defraud- creditors; and that the decree obtained by Buddig against C. & K. was but a furtherance of that scheme, and the object of the bill is to arrest its consummation by suspending the execution of the decree until an ascertainment of the true state of accounts between the parties, a discovery of which is sought.

It is apparent that the ground on which the chancellor sustained the demurrer is that, to maintain the bill, it should show that C. & K. were insolvent, and that complainants had no other means of obtaining satisfaction of their demands except by resorting to the property sought to be reached by this bill. This view is not maintainable. It is sustained by a number of decisions in Indiana, -where the Supreme Court, confounding the distinction between a voluntary convejmnce by a husband to his wife, a father to his child, and the like, the validity or invalidity of which is determinable by the circumstances of the donor at the time of the gift, and a conveyance made to hinder, delay and defraud creditors, has held that a creditor attacking a conveyance, as made for the purpose of defrauding, must aver and prove the insolvencj' of the debtor when the conveyance was made, and continued to the time of instituting the suit; and has displayed remarkable consistency and persistence in this erroneous view, against the sentiment of the bar and inferior courts, as indicated by the multitude of cases in which it has been questioned. We cannot follow such leading. The right of a creditor to attack any fraudulent conveyance or device resorted to for the purpose of hindering, delaying or defrauding creditors is clear. Code, § 1843.

Reversed; demurrer overruled, and cause remanded for answer in thirty days after mandate herein received in the court below.