Benjamin v. Le Baron's Administrator ( 1846 )

Read, J.

The record in this case is excéedingly. yolumin,ous. ■ To follow through all .the motions, exceptions,' demurrers and.alledged mistakes, interposed, by the ingenuity of counsel; would, lead' to' unnecessary prolixity, arid throw no light upon the- case. Some eighteen error's are assigned, but they-dwindle -down to. two. *' .

• First-: - Can .an'.administrator maintain trdvef to .recover property 'assigned and' transferred, by his intestate, to hinder^ delay and 'defraud creditors ? and, .

■ Second-; If„ so,'.would 'trover' lie .for the- bridge cohtract, as .above stated? ' ■ , .

...The first proposition the Court intend to decide, and that only;

We hold that the'administrator .can only maintain suoh action' as the' intestate.might, if living. He represents the .intestate ; hé steps into-no other right. As -between, the fraudulent vendor and vendee; thé transfer is good. Such conveyances are •••void -only as to' creditors. This is’ the well settled doctrine in • Ohio. Hence, as batwéeri the vendor and vendee in this case, the vendor had no rights^ and of course'his adriainistrator could-have none, -But it is said that, unless we sustain a suit of this sort, on- the part of -the. administrator, .creditors will have no remedy. , This does not follow. • • When a bill shall' be filed for that purpose, it will be timé to consider'of it.

As;.to the second proposition, whether trover would lie Tor the bridge cohtra’ct, it is unnecessary to decide, as it is disposed of by the/ determination of the first proposition. .-Yet'in'my. own opinion,although not authorized to say so,by. the Court, I should not deem trover the suitable remedy, to hunt down the results of a contract of that sort, 'as has been argued. ' It has been claimed that an executor de son tort may exist in Ohio, and that .we .might, to review our decisions upon that point. We aré content to let that matter rest as it. is.' We are -not disposed to introduce .or sanction a principle which would draw a fund'Wholly tb, one creditor,' instead of a fair distribution, as would result in.case of añ éx'ec.ntidn de son tort. -.' -.

■ Judgment Reversed.