
    George Lewis Prentiss, as General Guardian, etc., App’lt, v. Ellen Bowden, Resp’t. 
    
    
      (Court of Appeals,
    
    
      Filed March 19, 1895.)
    
    1. Cbeditob’s action—Requisites.
    Where a party, for himself alone and in his own sole right as judgment creditor, brings an action against the grantee of his debtor to set aside a conveyance of land as made in fraud of creditors and to appropriate the property to the payment of his debt, he must first exhaust his remedy at law by the issue and return of an execution unsatisfied in whole or in part.
    2. Same.
    This requirement is not met by the issuing of an execution,- after the death of the debtor, without notice to his representatives or permission of the surrogate.
    3. Same.
    The validity of such execution may be assailed in the creditor’s action.
    4. Same.
    Such execution is not merely voidable, but absolutely void.
    5. Same.
    The fact that the defendant was duly appointed the executrix of the deceased judgment debtor after the return of such execution and caused herself to be made a party to the judgment for the purposes of an appeal, does not affect the question.
    6. Same.
    Such an action, it seems, may be maintained by a judgment creditor in behalf of all the creditors, without the issuing and return of an execution, upon the refusal of the representatives of the decease debtor to bring it.
    
      1. Same
    When the creditor sues in behalf of the representatives who refuse to do their duty, such fact should be alleged and such representatives be made parties defendant.
    Appeal from order of the general term of the superior court of the city of Hew York, which reversed a judgment in favor of plaintiff entered upon a decision of the court on trial at special term and ordered a new trial.
    
      George F. Bentley and William R. Wilder, for app’lt; Benjamin Patterson, for resp’t.
    
      
       Affirming 60 St. Rep. 444.
    
   Finch, J.

There is no ambiguity in the character and scope of this action. It is brought by a judgment creditor against the grantee of his debtor to set aside a conveyance of land as made in fraud of creditors and to appropriate the property to the payment of the debt. The plaintiff sues for herself alone and in her own sole right as judgment creditor. She joins no other creditors and does not sue for their benefit, but exclusively for her own. It is of course a necessary condition of a right to invoke the aid of equity in such a case that the creditor should have first exhausted her remedy at law by the issue and return of an execution unsatisfied in whole or in part. The plaintiff issued such an execution, but not until the debtor was dead. That death occurred between seven and eight o’clock in the morning and the execution was issued four or five hours later on the same day. The courts below have held that the execution was nugatory and absolutely void, and cannot serve as a fulfillment of the condition precedent to the maintenance of the action. The whole controversy turns upon that point. It is technical in its character, and yet the rule sub-serves an important and substantial purpose. Equity intervenes-always for a reason and never needlessly ; and, declining its relief when there is a sufficient and adequate remedy at law, is obliged to say by what proof it shall be established that the remedy .at law has been tried and failed. It has selected for that proof the issue and return of an execution, both because that is the natural and usual mode of enforcing the legal right, and because it is easy to prove or disprove, and involves no necessary dispute. We are not at liberty, therefore, to disregard it as a needless and unmeaning ceremony.

An execution against the property of a dead man, without notice to his representatives or the permission of the surrogate, is-wholly unauthorized. The Code explicitly forbids it (§ 1379), except as provided in the next two following sections. These provide that the leave of the court which rendered the judgment and of the proper surrogate must be first obtained, and the mode and manner of securing the permission is pointed out. Without such permission the execution is forbidden, and not merely voidable but absolutely void. We so held in Wallace v. Swinton, 64 N. Y. 188. The appellant seeks to escape the effect of that case upon the ground that it declares the execution absolutely void against those who are not made parties to proceedings authorized by law for revival of the judgment against their property, and that the defendant is in fact executrix of the deceased judgment debtor and caused herself to be made a party to the judgment for the purposes of an appeal. But she did that five' weeks after the execution had been returned, and when the invalidity of that writ was already conclusively settled. Cases also are cited in which it has been held that such an execution is merely voidable, but they are of little utility because entirely unaffected by a peremptory statute forbidding utterly the issue of such an execution, except only after the prescribed notice and permission. It is urged also that the validity of the execution cannot be assailed collaterally. The cases declaring that doctrine are cases of irregularity merely, and not those in which the execution was absolutely void. It is further said that there are exceptions to the general rule requiring the issue and return of an execution, and one of them is when that preliminary step is impossible, But it was not necessarily impossible in the present case. On a proper application leave might have been granted. The truth is the plaintiff is seeking an advantage for herself above and beyond that belonging to the other creditors of the deceased. Our whole theory of administration rests upon the idea that when a man dies his estate shall answer to his creditors equally and without preference, and the surrogate is purposely made master of the situation to prevent inequality of payment. This plaintiff could undoubtedly have maintained an action for the benefit of all the creditors; after refusal of the representatives, to set this conveyance aside, but instead of that she is seeking, by an ordinary creditor’s action, to secure payment of her own debt regardless of what may happen to others. For the effort now made to turn theaction into one of the permitted character has too many difficulties in the way to succeed. Something of that kind was done in National Tradesman's Bank v. Wetmore, 124 N. Y. 241; 35 St. Rep. 316, but there the question was not raised by the answer, while here the facts which raise it are fully pleaded. The death of .the debtor before the issue of execution, the probate of his will, the appointment of John S. Wetherley and the defendant Ellen Bowden as executors are each alleged. If a request to Ellen as executrix to disaffirm her own title would be needless because absurd, that fact is not true of the executor, and his right cannot be arbitrarily set aside. And where the creditor may sue in behalf of the representatives refusing to do their duty, that fact should be alleged and such representatives be made parties defendant. Harvey v. McDonnell, 113 N. Y. 531; 23 St. Rep. 501. The executor Whetherley is not made a party at all, and the executrix only as an individual. The plaintiff, however, though failing in this action, may hereafter pursue the other remedy.

The order should be affirmed and judgment absolute ordered for the defendant on the stipulation, with costs.

All concur.

Order affirmed and judgment accordingly.  