Barth v. Heider

Mr. Chief Justice Cartter

delivered the opinion of the Court:

The court has found no embarrassment in this ease.. The claim of the complainant was originally one of unliquidated damages arising ex delicto. These damages were liquidated by a judgment at law, and have therefore by operation of law been resolved into a debt ex contractu. We think the complainant is a creditor whose judgment, lien must be preferred to that of any right arising from a conveyance without valuable consideration ; and there was no such consideration passing from the wife to the husband as would sustain the conveyance in question against a bona fide creditor who asks .the assistance of a court of equity. The defense strenuously contend, however, that as the return day of the fieri facias was sixty days from the time it went into the hands of the marshal, the complainant could not file his bill to set aside the deed until the expiration of the sixty days, because non constat the defendant might, within sixty days, have acquired property sufficient to satisfy the fieri facias. We do not think there is anything in this objection. The marshal having returned the writ nulla bona, the complainant was entitled to file his bill; if by any return, early or tardy, the marshal does not do his. duty, that is a question between him and the judgment creditor.

The decree is'affirmed.