
    Lestock P. W. Des Brisay, in Equity, versus Patrick Hogan & ux.
    
    When a creditor seeks, by a bill in equity, to obtain payment of his debt from certain rep.1 estate paid for by the debtor, but conveyed to his wife, a levy is unnecessary, if the debtor never had any title to the land.
    Bill in Equity.
    The case was heard on demurrer.
    
      J. Granger, for the complainant.
    
      Chas. R. Whidden, for the respondents,
    cited Webster y. Clark, 25 Maine, 313, and cases there cited; Doohray y. Mason, 48 Maine, 178; R. S., c. 61, § 1.
   Walton, J.

This is a bill in equity in which a creditor seeks to obtain payment of his debt from certain real estate paid for by the debtor, but conveyed to his wife, the debtor never having had any title to it.

It is objected that the bill cannot be maintained, because the creditor did not levy upon the land before asking the aid of the Court.

It was decided in Corey v. Greene, 51 Maine, 114, that where the debtor never had any title to the land, a levy is unnecessary. It is true that, in that case, the title was held by a stranger, while in this it is held by the debtor’s wife. But this makes no difference. It is only when the debtor once had a title to the laud and has conveyed it away fraudulently, that a levy can be of any use. In such case, the conveyance being fraudulent, it is as to the creditor no- conveyance, and he may treat the title as still remaining in the debtor. But when, as in this case, the debtor never had any title, treating the conveyance to his wife as either valid or void will not give him a title, — it will be either in the wife or her-grantor, — it will not be in the debtor, — and a levy upon it as his property would be an idle and useless ceremony. No title could possibly be obtained by it.

Demurrer overruled. — Defendants to answer further.

Appleton, C. J., Cutting, Kent, and Danforth, JJ., concurred.  