
    (Sixth Circuit — Lucas Co., O., Circuit Court
    January Term 1899.)
    Before Smith, Haynes and Parker, JJ.
    ABRAM K. DETWILER v. JOSEPHINE LOUISON et al.
    
      Innocent purchaser— Title not affected by subsequent suit against grantor—
    (1) . A title acquired by an innocent purchaser for value can not be annulled in a suit against the grantor to which the purchaser or grantee is not a party. A decree against one who has parted with the title before suit is brought will”not"biñd those to whom the title has been conveyed.
    
      Plaintiff's suit for damages for tort — Not creditor of defendant before judgment—
    (2) . A claim for damages for alleged assault and battery is not a credit, and the plaintiff in such case is not a creditor within the meaning of the law upon the subject of conveyances in fraud of creditors, until his claim has been reduced to judgment.
    
      Judgments on suits after transfer of land — Not liens on property as against previous innocent purchasers—
    (3) . One dealing with titles to land is not bound to search the record to ascertain whether judgments or decrees have been entered against those who may have at one time owned the property in suits brought against them after they have parted with the title. Such persons are as much strangers to the title as persons who never had an interest in it, and there is no more reason for searching the records for judgments against one than the other. In neither case can the judgment become a lien upon or in any way affect the title.
    
      Fraudulent conveyance — Remedy of creditor—
    
    (I). A judgment creditor who is in a position to have a conveyance, made by his judgment debtor, set aside because fraudulent as to him as respects his judgment, may cause an execution to issue on his judgment and be levied on the land of his debtor, and may bring it to sale, and the purchaser may go into possession and defend his title thus acquired in ejectment brought by such fraudulent grantee,by showing the fraudulent character of the conveyance; or he may maintain an action to quiet title, or forcible detainer to recover possession from such fraudulent grantee; or, if necessary to obtain possession of the premises after purchasing at judicial sale made under the judgment, he may bring ejectment against the fraudulent grantee and obtain possession ; but whether he will recover or not in any of these cases, will depend upon whether he establishes and the court determines judicially that tho conveyance was as to him fraudulent.
    Appeal from tbe Court of Common Pleas of Lucas county.
   Parker, J.

This case comes here by the way of appeal. For a statement of certain facts, which are not controverted, or which are certainly beyond controversy, necessary to be stated for an understanding of the issues, I read from the plaintiff’s brief: This is an action commenced in the common pleas court by Abram K. Detwiler as plaintiff against Josephine Louison and other defendants, to foreclose a mortgage on lot 10, King’s addition to the city of Toledo, Ohio, given by the defendants Josephine Louison and Francis Louison, husband and/wife, to Frank Brenot, July 13, 1889, to secure the payment of a promissory note of that date for $400, payable two years after date, with interest thereon at the rate of six per cent, per annum, payable annually. Mortgage properly executed and recorded July 13, 1889, in volume 127, of Lucas county records of mortgages, pages 286, etc. Leonard H. Wilkinson claims to be the owner of the mortgaged premises,and that said mortgage is invalid and not a lien upon the premises. Prior to March 7, 1888, Francis Louison, one of the defendants in this case, and one Louise Louison were husband and wife. On that date a divorce was granted them,and said lot 10,King’s addition, decreed to said Francis Louison free of her dower. May 12, 1888, said Louise Louison, the divorced wife of Francis Louison, commenced suit in the common pleas court against him for damages on account of alleged assault and battery. At the September term of said court, 1888, to-wit, November 23, 1888, a judgment was entered in favor of Louise Louison against Francis Louison, for $1,000. The first day of said September term was September 24th, 1888. On February 9tb, 1889, execution was issued upon this judgment and was levied on said lot 10, in King’s addition. Subsequent to the bringing of this suit by Louise Louison against Francis Louison, her husband, for assault and battery, and prior to the judgment, to-wit, on May 21, 1888, said Francis Louison sold and conveyed said lot 10, King’s addition, to Aloys Zimmerman, which deed was recorded on December 11, 1888, in volume 146 of Deeds, on page 620. In July, 1888, Francis Louison married his present wife, Josephine Louison. On February 22, 1889, Aloys Zimmerman and wife conveyed said lot 10, King’s addition, to Josephine Louison, the present wife of Francis Louison, by deed recorded February -5th, 1889, in volume 153, of Deeds, page 581. On July 13tb, 1889, said Josephine Louison and her husband, Francis Louison, mortgaged said lot 10, King’s addition, to Frank Brenot for $400; mortgage recorded July 13, 1889, in volume 127, of mortgages, page 286. On September 12, 1896, this mortgage was assigned to Abram K. Detwiler, the plaintiff herein, and this is the mortgage upon which he brings this suit.

Subsequently to the conveyance of this lot by Zimmerman and wife to Josephine Louison, and of the record of that deed, to-wit, on April 22, 1889, Louise Louison commenced suit in the court of common pleas of Lucas county, Ohio, against Francis Louison, Aloys Zimmerman and Mary Zimmerman, his wife, to set aside the deed from Francis Louis to Aloys Zimmerman of date May 21, 1888, and to subject said to 10, King’s addition, to the payment of the judgment in her favor above mentioned — Ihe judgment in the assault and battery case. In this suit a decree was entered setting aside said deed, and said lot was ordered sold free from any claim of said Zimmerman and wife, to pay said judgment for $1,000. On March 22, 1890, an order of sale was issued in said case to the sheriff of Lucas county, Ohio, under and in pursuance of which said lot 10, King’s addition, was appraised at $500, and on April 26th, 1890, it was sold to John Redding, Jr., for $603. May 5th, 1890, this sale was confirmed. Neither Josephine Louison, who owned the legal title.to said lot at the commencement of said suit to set aside the deed to Louise Louison, or Frank Brenot, to whom this mortgage had been given in the meantime, were ever made parties to this suit. .On May 7th, 1890, the sheriff of Lucas county, Ohio, in pursuance of the sale mentioned in the foregoing suit, executed a deed to said John Redding, Jr., and subsquently said Redding conveyed said property to the defendant Leonard H. Wilkinson. These deeds were duly recorded.

The claim of defendant, Leonard H, Wilkinson, to said lot,is based upon and solely derived through this deed from Redding, the purchaser at the sheriff’s sale.

In the course of these transactions Wilkinson obtained a mortgage upon the premises, which appears in the evidence, but nothing is here claimed on that account.

The defendant Wilkinson avers in his answer and cross-petition that the deed from Francis Louison to Aloys Zimmerman was made without consideration and with intent to defraud Louise Louison, a creditor, of the claim upon which she had brought suit, and which she afterwards reduced to judgment, as before stated; and he also avers that the deed subsequently made by Aloys Zimmerman to Josephine Louison was without consideration; that the mortgage in suit from Josephine Louison and Francis Louison to Frank Brenot, and the assignment thereof to the plaintiff, Detwiler, were likewise without consideration, and that said several instruments and transfers were made and received with intent to carry out the same fraudulent purpose.

At the time Francis Louison conveyed this lot to Zimmerman, Louise Louison was not a creditor because of her said demand afterward reduced to judgment,in a sense that a conveyance made to defeat her demand would be in fraud of her right as a creditor. Her claim was for damages for an alleged assault and battery, and it was not a credit, nor was she a creditor within the meaning of the law upon the subject of conveyances in fraud of creditors, until it had been reduced to judgment. Allen v. Louis, 30 Ohio St., 11.

But assuming that she might have attacked this conveyance and had it set aside, and that Wilkinson had been subrogated to her right in that respect by virtue of his purchase from Redding — who purchased the lot at sheriff’s sale made under an order of sale issued on the decree in the case Louise Louison vs. Francis Louison and Zimmerman and his wife, and assuming that the evidence submitted is sufficient to justify us in finding that the conveyances from Francis Louison to ZimmermaD, and from Zimmerman to Josephine Louison were made without consideration and with intent to defraud Louise Louison, as averred, we must go farther before the claim of the plaintiff under the mortgage can be affected.

Now, the evidence discloses that at the date the mortgage was given Francis Louison was indebted to Frank Brenot in the sum of $300, and he- then borrowed from Brenot an additional $100, and the note and mortgage were given as evidence of and to secure this indebtedness. Though we may entertain some suspicion of the entire accuracy of the testimony on this point, yet there is nothing in it all to warrant us in discarding or disbelieving it. It stands uncontradicted. The same is true as to the evidence of the want of knowledge of Brenot of''any fraudulent purpose in this transaction, and as to the valuable consideration paid by plaintiff for the note and mortgage, and his good faith' in the transaction. How then can the title of Wilkinson prevail against the mortgage in the hands of plaintiff?

Counsel for Wilkinson answer this by saying (if we understand him) that the decree in the case of Louise Louison v. Francis Louison and Zimmerman and wife, operates upon the title with such potency and far-reaching effect that any one receiving a conveyance thereof by deed or mortgage except under the title acquired at the sale made in that case, takes subject to such title. That the decree in that case binds not only the parties and their privies in title who acquired title after suit begun, but that it binds as well those who acquired title before said suit was begun, though not parties to the suit, and as well all claiming under them.

That this contention and the real point in issue here may be understood, let us refer again to certain of the events before mentioned, and especially to the order thereof.

The action for damages was begun by Louise Louison against Francis Louison on May 12, 1888, but judgment was not obtained until the September term, 1888, which began on the 24th of that month.

On May 21st, 1888, Francis Louison conveyed the property to Zimmerman, so that no judgment lien by virtue of this judgment ever attached to the property.

On February 22,1889, Zimmerman and wife conveyed the lot to Josephine Louison.

On April 22, 1889, Loui3 Louison begun her suit against Francis Louison, Zimmerman and wife, (none of whom then had any title to the property),set up her judgment,and alleged that Zimmerman and wife claimed some interest in the property, and prayed that they might be required to answer and set it forth or be foreclosed from afterwards asserting it. These defendants, having no interests to protect, allowed a decree to go against them by default.

Afterwards, viz; on July 13th, 1889, this mortgage was given by Josephine Louison, then in possession of the premises, her husband joining, and, as we find, the mortgagee loaned the full amount represented by the mortgáge, and had no knowledge of any fraudulent purpose on the part of the mortgagor. We have no doubt but his title was and that of the plaintiff as his assignee of the mortgage is unassailable by those claiming under this decree.

The sale under the decree was made subsequently, but whether made before or after we deem immaterial. It is urged that because the mortgage was executed after the decree which in effect set aside the deed from Francis Louison to Aloys Zimmerman,that the mortgagee was bound by constructive notice of that decree, so that he could not be mortgagee in good faith, Assuming that such a decree against the parties to that suit was authorized and valid, it was not in the chain of title under which the mortgagee claimed, and was not against ono who had title at the time the suit was begun, or at any time during its pendency, so that it wasmot constructive notice to anybody of anything.

One dealing with titles to land is not bound to search the record to ascertain whether judgments or decrees have been entered against those who may have atone time owned the property in suits brought against them after they have parted with the title. Such persons are as much strangers to the title as persons who never had an interest in it, and there is no more reason for searching the records for judgments against the former class than for judgments against the latter. In neither case can the judgment become a lien upon or in any way affect the title.

It is suggested that conveyances, void because made in fraud of creditors, cannot be the basis of a good title, but the authorities are clear to the effect that such conveyances are as effective against the grantor to transfer the title'as those innocently made can be, and that an innocent purchaser from a fraudulent grantee takes a perfect title. We cite Schultz v. Brown, 3 Circuit Court, 609, a case that came readily to hand; but we express our opinion upon this subject without the least doubt, and we think counsel will have no difficulty in finding an abundance of authority like it upon the subject.

But it is said that the proceeding to set aside such conveyance is in effect a proceeding in rem, and that the fraudulent grantee is not a necessary party, and that as a consequence of such fraudulent grantee being bound by the decree, though not a party, those claiming under such fraudulent grantee are likewise bound. This reasoning proceeds upon a false assumption. Sockman v. Sockman, 18 Ohio, 362, is the chief reliance of counsel urging these views. This case and others cited, do not support this contention. This is the syllabus to that case:

“Where a debtor has made a fraudulent conveyance of his lands, and the judgment creditor, after levying on the same, applies to a court of chancery to aid him in making a sale to satisfy his judgment, a decree for the sale by a master will not be void, though the fraudulent grantees are not made parties, but may be set up by a purchaser under such decree, as a perfect defense in an action of ejectment.”

Now,the case before the court on review was an action in ejectment, instituted by the fraudulent grantee, and the evidence in the case was sufficient in the opinion of tne court to justify the lower court in holding that the conveyance was fraudulent and therefore void, and that therefore the defense was established; but then it will be observed that this was said after judicial inquiry and judicial determination of that very point.

This case has been reviewed by the supreme court at least twice. I call attention to a reference in 24 Ohio St., 445 and 446, where this is said of it, and this seems to be the understanding of that court of what was decided in the Sockman case:

“A decree, in a suit between her and purchaser” (that is, the purchaser at the judicial sale under the judgment) ‘‘that the conveyance to her was fraudulent, would effectually cut off all claim on her part to an interest in the purchased property. ”

That is to say — as it affected her,- after it had been determined judicially that the conveyance was fraudulent, (page 456).

, It is true that a judgment creditor who is in a position to have a conveyance, made by his judgment debtor, set aside because fraudulent as to him as respects his judgment, may cause an execution to issue on his judgment and be levied on the land as the land of his debtor, and may bring it to sale, and the purchaser may go into possession and defend his title thus acquired in ejectment brought by such fraudulent grantee, by showing the fraudulent character of the conveyance, and he may maintain an action to quiet title; or forcible detainer to recover possession from such fraudulent grantee; or, if necessary to obtain possession of the premises after purchasing at judicial sale made under the judgment, he may bring ejectment against the fraudulent grantee and obtain possession; but whether he will recover or not in any of these cases, will depend upon whether he establishes and the court determines judicially that the conveyance was as to him fraudulent.

Of course,the safer and commoner method is to bring an action to remove the cloud cast upon the title by such fraudulent conveyance, before bringing the land to sale under the judgment. Upon certain facts being found and determined judicially in an action of any of the kinds mentioned, the title is annulled by the judgment of the court. But we find no authority for saying that a fraudulent conveyance is ipso facto and as to all the world so completely and wholly void ab initio that good title cannot under any circumstances be acquired from the-fraudulent grante6, or for saying that a title acquired by an innocent purchaser for value may be annulled in a suit against the grantor, to which the purchaser or grantee is not a party; or for saying that which would be in effect the same — 4hat a decree against one who had parted with the title before suit brought would bind those to whom the title had'been conveyed.

R. M. McKee, Esq., for Plaintiff.

A. W. Eckert, Esq., and L.H. Wilkison,for Defendants.

The doctrine of subrogation invoked by the defendant Wilkinson, and the claim that the rights of the parties are affected by the circumstance of Francis and Josephine Louison obtaining some part of the proceeds of the sale made under the decree in favor of Louise Louison, by the way of exemption in lieu of a homestead,may be disposed of by the remark that, however those things may affect the rights of Wilkinson and Francis and Josephine Louison as between themselves, they cannot prejudicially affect the interest of the plaintiff, who stands in the shoes and right of an innocent purchaser for value from one having apparently a clear and perfect title to the premises.

Decree will be entered in favor of plaintiff as prayed for.  