
    *Henry S. Fowler, Assignee of Daniel Schlenker, and Jacob B. Olwin, v. Frederick C. Trebein et al.
    1. A deed made without consideration, and purporting to be a conveyance of real estate from a husband directly to his wife, is void, both at law and in equity.
    2. Such deed, though made with intent to defraud creditors, is not a “ transfer, conveyance, or assignment,” within the meaning of section 17 of the act of April, 1859, “ regulating the mode of administering assignments in trust for the benefit of creditors,” and, therefore, judgment creditors of the husband can not be prevented thereby from acquiring priorities of lien by the levy of executions upon the premises.
    Error to the Superior Court of Montgomery county.
    The record in this case shows the following facts:
    August 29, 1861, Daniel Schlenker executed a deed for certain premises to his wife, Sally Schlenker, making the-deed directly to her, without the intervention of a trustee.
    ' At the December term, 1861, of the Superior Court, Frederick C. Trebein, Henry Neff, William D- H. Shelby, Harshman & Co., and Andrew Forlong, defendants in error, recovered judgments against Daniel Schlenker, and, within one year thereafter, caused executions to be issued on the same, and levied upon the premises described in the deed. The judgments are still unpaid and in full force.
    At the time Schlenker executed the deed to his wife, Olwin, a plaintiff in error, Gump, and others, were creditors of Schlenker, and their claims still.remain unpaid.
    
      Olwin and Gump afterward reduced their claims to judgments, which still remain in force.
    On February 4,1862, Trebein filed in the court below a petition against Schlenker and others, claiming that the deed from Sehlenker to his wife was, as against the creditors of Sehlenker, fraudulent, and asking that it might be set aside, and the premises sold, and the proceeds applied to the payment of his judgment.
    Pending said petition, William Huffman, Sr., was made a defendant thereto, and filed a cross-petition, setting up a mortgage lien upon the premises, for which he afterward obtained judgment, and had the premises sold under an order of the court.
    *Of the proceeds of sale, after paying Huffman’s claim, there remained in the hands of 'the master, for distribution, three thousand two hundred and ninety-eight dollars.
    2. Afterward, at the February term, 1864, the cause came on for hearing, and the court found that the conveyance from Schlenker to his wife was without consideration and fraudulent as to his creditors, and was, both in law and equity, null and void, and therefore set the deed aside and declared it to be held for naught.
    On April 14,1864, Olwin, who had been made a party defendant, obtained from the probate court, on the ground of this decree, an order appointing Fowler, the plaintiff in error, assignee, to recover possession of the property and administer it for the benefit of Schlenker’s creditors; and, on the 15th of April, filed an answer in the case, setting up these facts, and asking that Fowler be made a party to the suit, and the moneys placed in his hands.
    Accordingly, Fowler was made a defendant, and filed his answer April 30, claiming said funds as such assignee.
    Afterward, at the April-term, 1864, the court held that-said deed was made with intent to hinder, delay, and defraud the creditors of Schlenker, and was fraudulent and void as against the claims of all his creditors, but did not pass the legal title, and therefore did not inure to the equal benefit of all the creditors, and entitle them to have an assignee appointed to take possession of and administer the property for their benefit. The court also found that the judgments of Harshman & Co., Trebein, Neff, Shelby, and Forlong, were liens upon the premises, and ordered the same to be paid out of the moneys in the hands of the master, prior to and in exclusion of the claims of Olwin and other creditors of Schlenker.
    This holding of the court, by which preference was given to the elder judgments under which executions had been levied, to the exclusion of other creditors, is assigned for error.
    
      JE. 8. Young, for plaintiffs in error:
    1. Under section 17 of the act regulating assignments.(S. &C. 713), the deed from Schlenker to his wife, having been *made with the intent to hinder, delay, and defraud his creditors, inured to the equal benefit of all his creditors pro rata, and none of them did or could acquire priority by judgment and levy on the promises after the execution of the deed.
    After the deed had been declared by the court to have been made with the intent aforesaid, it was competent for the probate judge, upon the application of a creditor, to appoint an assignee to take charge of the property and administer it for the benefit of creditors, and the assignee so appointed is entitled to the moneys remaining in the hands of the master commissioner.
    The deed from Schlenker to his wife was certainly a “ conveyance.” It conveyed an equity, at least, and would be supported in equity without the intervention of a trustee. Reeves’ Dom. Rel. 90, 517 ; 6 Law Reporter, 408; 7 Johns. Ch. 57; 26 Barb. 419; 10 Ohio, 373.
    It is not the character, extent, or effect of a “ conveyance,” but the intent with which it was made, to which the statute looks.
    
      Odlin & Cahill, Craighead & Munger, Peter P. Lowe, and J. A. Jordan, for defendants in error:
    The 17th section of the assignment act is not to be literally interpreted. The mere intention with which a debtor may make, or, as in this case, attempt to make a conveyance, can not, by fair construction of that section, nullify any right which one creditor may legally and fairly acquire over another. If so, a conveyance with intent to defraud creditors may divest the rights of a prior mortgagee or'execution creditor. It is intended to apply only to those creditors who stand on a legal equality who are equal in right.
    In the case at bar, whensoever the deed was made by which the conveyance was attempted, it is clear that before that deed had been declared fraudulent by any “court of competent jurisdiction,” before any effort had been made or claim set up on behalf of general creditors, the defendants in error had obtained their judgments ; the lands upon which they claimed liens were “ within the county,” and they had caused ^executions to be levied upon them within a year from the rendition of the judgments. This deed being fraudulent and void, no title passed by it as against them. By judgment and levy upon the premises attempted to be conveyed, they obtained a lien; and had they caused a sale upon execution, the purchaser would have taken all the title that Daniel Schlenker had to the premises before the void deed was made. Sockman v. Sockman, 18 Ohio, 362.
    The' conveyance complained of was a deed from husband to wife, made while that relation subsisted. Such a deed, if made for a good or valuable consideration, notwithstanding it would be sufficient to enable the wife to hold the property as against any subsequent grantee of the husband, and would be superior to the rights of creditors subsequently acquired, would at best convey only an equitable title. Reeves’ Dom. Rel. 90; 1 Washburn on Real Property, 270, secs. 13, 14; 2 Kent’s Com. 112; Huber v. Huber, 10 Ohio, 373; Sheppard v. Sheppard, 7 Johns. Ch. 60; Wallingsford v. Allen, 10 Peters, 583; Price v. Price, 8 E. L. & E. 271; Mews v. Mews, 21 E. L. & E. 566.
    But the deed in this case was a deed from husband to wife, without either good or valuable consideration, illegal in its inception, and utterly void. Consequently no title of any kind passed by it. It was not a “transfer, conveyance, or assignment,” within section 17 of the assignment act. It is certainly not the intention of that statute to create a'fraudulent conveyance where no act has been done which can amount to a conveyance. A mere unexecuted intention will scarcely be magnified into a completed act.
    As to the defendants in error then, the deed from Daniel to Sally Schlenker amounted to no more than a piece of blank paper; it left the title entire in Daniel Schlenker, and their judgments became liens on the premises from the first day of the term at which they were rendered. The judgment of the court below was therefore right.
   Scott, C. J.

The plaintiffs in error claim that under section 17 of the act regulating assignments (S. & C. 713), the deed from Schlenker to his wife having been made with *the intent to hinder, delay, and defraud his creditors, inured to the equal benefit of all his creditors pro rata, and that none of them did or could acquire priority by judgment and levy on said premises after the exeeution of the deed. They further claim that after the deed had been declared by the court to have been made with the intent aforesaid, it was competent for the probate judge, upon the application of a creditor, to appoint an assignee to take charge of the property , and administer it for the benefit of creditors, and that the assignee so appointed is entitled to the moneys remaining in the hands of the master.

The section of the statute referred to, reads as follows: “All transfers, conveyances, or assignments, made with the intent to hinder, delay, or defraud creditors, shall inure to the equal benefit of all creditors in proportion to the amounts of their respective claims; and the probate judge, after such transfer, conveyance, or assignment shall have been declared by a court of competent jurisdiction to have been made with the intent aforesaid, on the application of any creditor, shall appoint an assignee according to the provisions of this act, who, upon being duly qualified, shall proceed by due course of law to recover possession of all property so transferred, conveyed, or assigned, and to administer'the same as in other cases of assignments to trustees for the benefit of creditors.”

Are the provisions of this section applicable to the present case ? If they are, the court below erred; but if they are not, there was no error in the judgment of the court.

The conveyance which Schlenker attempted to execute directly to his wife, was, in law, an utter nullity. The legal title remained in him as fully after its execution as before. The relation of the parties inter se rendered them incompetent to convey the legal title to real estate directly from the one to the other. Such a conveyance from the husband to the wife, if founded upon a sufficient consideration, might be upheld in equity. But in this case the deed has been found by the court below to be without consideration. Even as between the parties then, and without reference to creditors, this instrument, purporting to be a conveyance, was simply void both at law and in equity. It gave the assignee or grantee *no rights which she could assert in any forum against the assignor or grantor. It did not, in fact, transfer, convey, or assign anything, and is therefore not within the operation of the section which we have quoted. The statute was intended to give a particular operation and effect to actual conveyances and assignments, which may be valid as between the parties, but are in fraud of the rights of creditors. But we suppose it was not intended to give to an absolute nullity the effect of a transfer, conveyance, or assignment. As in this case, the title both legal and equitable remained in the debtor, notwithstanding the unexecuted intention to convey his land's to his wife, his judgment creditors might well levy their executions thereon, and the priorities of lien thus acquired can not be defeated by the general creditors,.who claim through an alleged conveyance, which, for want of competent parties, never became operative.

Judgment affirmed.

Day, White, Welch, and Brinkerhoee, JJ., concurred.  