
    Friedel, Admx., v. Wolfle et al.
    (Decided November 16, 1931.)
    
      Mr. Harry F. Payer, for plaintiff in error.
    
      Messrs. Boyd, Brooks & Wickham, for defendants in error.
   Vickery, J.

This action came into this court on a petition in error to the common pleas court of Cuyahoga county; the purpose being to reverse a judgment of the common pleas court, in which it sustained a demurrer to a petition filed by Emma Friedel, administratrix, as plaintiff in the court below, on the ground that the petition did not state a cause of action.

From the record, arguments of counsel, and the briefs, we learn that on the 7th day of November, 1926, the plaintiff’s husband was killed in an automobile accident. The automobile which caused the accident, it is claimed, was driven by John H. Wolfle, the defendant in error here. It is also claimed that at that time Wolfle was the owner of two certain separate parcels of real estate, or that at least he owned a half interest in the two separate parcels of real estate, and that on the 11th day of November, four days after the accident which resulted in the death of the plaintiff in error’s decedent, he transferred all and singular his property, without any consideration, to his wife, with intent thereby to prevent the collection of any judgment that thereafter might be rendered against him.

Subsequently, on the 22d day of December, 1926, a petition was filed by Emma Friedel, the wife and administratrix of the estate of Casper Friedel, who had been killed in the accident, commencing a suit for herself and the next of kin, to recover damages by reason of his wrongful death. An answer was filed to said petition, and the action came on for trial in due course; the plaintiff recovering a judgment for $1,500. A motion for a new trial was made and overruled, and judgment entered upon the verdict.

Whereupon an attempt was made to collect the judgment, and it was found that the defendant in that action, defendant in error here, had transferred all his property, as above recited.

On the 16th day of January, 1931, an action to set aside the conveyance was commenced, for the reason that the same was made to hinder and delay the collection of judgments of creditors, and was done with the intent to defraud. To this petition a demurrer was filed on the ground that the petition did not state a cause of action. Upon argument, the court of common pleas sustained the demurrer, and error is prosecuted to this court to reverse that judgment, and so it becomes a question whether this petition stated a cause of action.

Apparently the court below took the view that, inasmuch as Emma Friedel, as administratrix, did not become a creditor until the judgment was rendered, as to her there could be no transfer to defraud creditors. That this was the view of the court is apparent from the citation of the cases in the brief filed by defendant in error.

Of course the plaintiff in error, the plaintiff in the action below, was not actually a creditor at the time the transfer of the property, on the 11th of November, 1926, was made. At best she then had only a cause of action. She afterwards became a creditor, and so was a subsequent creditor; and apparently the court below did not clearly distinguish between the course of procedure where there is a subsequent creditor and where there is a present creditor when a conveyance is made. Where there is a subsequent creditor, in order to defeat his claim, a man who transfers his property must not only intend to convey it for the purpose of defrauding that subsequent creditor out of a claim which such person might afterwards acquire against the transferor, but, in order to be reached by an action to set aside, the party purchasing the property, the grantee, must also intend to aid the transferor in defeating the right of the subsequent creditor, or must be a gratuitous grantee. And the reason for this is obvious. If a person has a cause of action and has not reduced it to judgment, he is not in the true sense of the word a “creditor,” and, therefore, if the person against whom he has a cause of action transfers his property, even though he intended to defraud, unless the grantee intended likewise to participate in that fraud, or did not pay anything for the property, the transfer could not be attacked, for the reason that a mere cause of action for which suit has not yet been filed, or even where suit is filed, unless it seeks to identify certain property, is not Us pendens, and therefore, if a bona fide purchaser should purchase that property in good faith, and pay for it, his right could not be disturbed, and that is the doctrine laid down in Pfisterer v. Toledo, Bowling Green & Southern Traction Co., 89 Ohio St., 172, 106 N. E., 18, and in all the other cases that have been cited to support this contention. We recognize and acquiesce in that doctrine, but where a person against whom a cause of action exists, either before it has ripened into a judgment, or even if before suit is brought, with intent to defraud, puts his property beyond reach of a judgment subsequently obtained, and transfers it without any consideration to a person who has knowledge of his intention and joins in it, such a transfer may be attacked, and the courts will set aside such a transaction; otherwise all one would have to do as soon as one had laid himself liable to a tortious action would be to transfer his property to his wife, or friend, and avoid responsibility so far as being compelled to pay anything is concerned. That is not the law, and this court has so held several times.

The case of Schubeler, an Infant, v. Lilly, 23 Ohio App., 481, 155 N. E., 699, is a case clearly in point, and was decided by the Court of Appeals of the First Appellate District of this state. In that case the exact question that is raised in this case was decided, the opinion being written by Judge Cushing, and we acquiesce in that decision. Judge Cushing says very wisely in that case that the creditor who obtained the judgment, while not a creditor at the time, was a “subsequent creditor,” and we think the transfer comes clearly within our second proposition, that, in order to set aside such a transfer, there must be alleged and proved an intention to avoid or evade the liability for an act committed, which afterwards is rendered into a judgment, and that the party must either transfer it without any consideration or the party grantee must participate in the intended wrong. Now in the instant case the petition alleges the operative facts, and that, for the purpose of avoiding payment of a judgment after-wards obtained, the defendant intentionally transferred his property to his wife without any consideration whatever. Such transactions cannot stand. The petition we think stated a complete cause of action; whether the plaintiff could prove what the petition alleges is a matter of utter indifference. The petition alleged and stated a cause of action, and that was that this man, after he had become liable to an action in tort to the next of kin for the death of the decedent, transferred all of his property to his wife, retaining nothing, without any consideration whatever.

Now, there is an ancient maxim, that is as old as the law and perhaps older, that a man must be just before he is generous. He cannot give to his wife, nor to any other person for that matter, and thus avoid his legal obligations.

We think the court committed error in sustaining this demurrer, and for that reason the judgment will be reversed, and the cause remanded to the common pleas court, with instructions to overrule the demurrer.

Judgment reversed and cause remanded.

Levine, P. J., and Weygandt, J., concur.  