
    The National Tradesman’s Bank, Resp’t, v. Margaret Wetmore, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed January 4, 1887.)
    
    1. Creditors’ bill—What is requisite in order to hate standing in COURT.
    The plaintiff a national bank, located in New Haven, Conn., discounted for one Wetmore, a resident of that state, certain promissory notes. At the time of the transaction W. was the owner of lands situated in the state of New York, and subsequently deeded them to another, wlio, on the same day, deeded them to this defendant, the wife of W. These conveyances were without consideration. Thereafter W. made a general assignment for the benefit of creditors, which by the laws of Connecticut did not convey any title or interest in lands without that state. Actions were brought against W. on the notes as each fell due, and by this plaintiff in Connecticut upon an over draft. During the pendency of the action, and previous to the recovery of judgment in any one, W. died intestate, and an administrator was appointed. The plaintiff took proceedings to revive the actions against the administrator, who obtained an order that the estate should be settled as an insolvent estate. Except for certain classes of debts which do not include these, no judgment can be obtained against the representative of an insolvent estáte in process of settlement, and judgment was rendered dismissing these actions. Held, that the plaintiff was simply a creditor at large of the deceased husband of the defendant, and that should the title to the real estate conveyed by him be adjudged to remain in him at the time of his death, still the plaintiff would have no lien on the property. That the plaintiff therefore, had no standing in court which would enable him to have the transfer of the land adjudged fraudulent and void, and the payment of its claims against W. decreed to be made therefrom.
    
      3. Same—Judgment and execution prerequisites, sometimes also return OF EXECUTION WHOLLY OR PARTLY UNSATISFIED.
    
      Held, that in the case of a creditors’ bill there must be judgment and execution, and under some circumstances a return of execution, wholly or partly unsatisfied to give the creditor a standing in court to demand and have a removal of a fraudulent transfer by the debtor of his property.
    3. Same—3 R. S„ 173, 174, § 38-Code Civ. Pro., §§ lb71, 1873—This rule INDEPENDENT OF STATUTE.
    
      Held, that this necessity grew out of the requirements of 3 R. S., 173, 174, £ 38, and Code Civ. Pro., §§ 1871, 1873, hut that the same rule obtained in all such cases irrespective of statutory provision. That the necessity of compliance with this rule was not obviated by showing that all attempts by other proceedings to obtain satisfaction of claims would be unavailing.
    4. Same—These conditions must be complied with.
    
      Held, that a presentation of the claims to commissioners in insolvency, appointed upon the estate of W., and their allowance of those claims, and plaintiff’s inability to realize anything therefrom, was not in effect equivalent to a judgment obtained by the plaintiff against it.
    Appeal from a judgment entered in Fulton county upon the trial of this action by a court without a jury.
    Prior to December 28, 1882, and in that year the plaintiff, a national bank at New Haven, Connecticut, discounted eleven promissory notes, aggregating in amount $5,104.69, for one Abner C." Wetmore, a resident of Meriden, in that state. At that time Wetmore was owner of an undivided third part in lands situate in Hamilton county, in this state. And on December 28, 1883, he made a deed of those lands to one Campbell, who, on that same day deeded them to Wetmore’s wife, by a deed regular in its execution. Both of the deeds were recorded in the office of the clerk of Hamilton county, on January 3, 1883. Neither was supported by any consideration. Subsequently, and on or about February 19, 1883, Wetmore made a general assignment for the benefit of creditors, one Eli Ives being named as trustee, who on April 19th following, resigned, and Charles P. Ives, succeeded to the trust. This assignment by the Connecticut law conveyed no title or interest in lands without the state.
    Actions were brought upon the several notes as they fell, due. And action was brought by plaintiff in Connecticut, against Wetmore, upon an over draft during the pendency of the actions. And before the recovery of judgment in any, Wetmore died intestate."' Subsequently Charles P. Ives was appointed administrator of his estate. Proceedings were thereupon taken by this plaintiff to revive the suits against the administrator, and an order was by him obtained from the surrogate’s court, that the estate should be settled as an insolvent estate. The Connecticut laws do not allow any judgment to be obtained against the representative of such an estate while in process of settlement, except for debts due to the United States, the state of Connecticut for expenses of last sickness, or funeral expenses of the decedent. Judgment was thereafter rendered dismissing those actions. The plaintiff’s claims were proved before commissioners appointed to take proof of claims against the insolvent estate, but nothing has been realized therefrom by this plaintiff.
    
      8. and L. M. Brown, for app’lt; H. B. Durfee, for resp’t.
   Bockes, J.

The plaintiff was simply a creditor at large of Abner 0. Wetmore(i), deceased, the late husband of the defendant, to whom, as is alleged, his lands described in the complaint were transferred without consideration and in fraud of the rights of his creditors. Should title thereto be adjudged to have remained in the husband to the time of his death, still the plaintiff would then have had no lien thereon, either general or specific, for the satisfaction of its claims against him; nor was there then, or at any time thereafter, any trust in favor of the plaintiff as respects those claims impressed thereon, legal or equitable, by virtue of any writing creating or declaring such trust. This being so, the plaintiff has no standing in court to demand and have the relief sought herein, to wit, to have the transfer of the premises to the defendant adjudged fraudulent and void, and payment of its claims against Abner 0. Wetmore, deceased, decreed to be made therefrom. This conclusion is settled by many decisions. Evans v. Hill, 18 Hun, 464; Adsit v. Butler, 23 id., 45; affirmed, 87 N. Y., 585; Geery v. Geery, 63 id., 252; Estes v. Wilcox, 67 id., 264; Adee v. Bigler, 81 id., 349. " If it be, as is insisted, that the plaintiff makes a case showing that all attempts by other proceedings to obtain satisfaction of its claims would be absolutely unavailing, still that would not change the settled rule of law declared in the above and other cases. It is conceded, of course, that in the case of a creditor’s bill there must be judgment and execution, and under some circumstances a return of execution unsatisfied in whole or part, in order to give the the creditor standing in the court to demand and have the removal of a fraudulent transfer by the debtor of his property. This necessity grows out of a statutory requirement (2 B. S., 174, § 38; Code Civ. Pro., §§ 1871, 1872); but the Same rule obtains in all cases where this relief is sought, irrespective of such statutory provision. This was so determined in Adsit v. Sandford (supra), where the subject was discussed at length and on authority; and indeed this rule was recognized by the special term in this case, but it was found that here the plaintiff had exhausted its remedy at law, and therefore had standing in the court to have the relief demanded. In this conclusion of the learned judge we think he was in error. The plaintiff was a general creditor without judgment and execution. Before commencing this action, it had taken no proceeding to collect its claims and demands. There had been a proceeding in the probate court of Connecticut, under the insolvent laws of that state, wherein commissioners in insolvency had been appointed to administer upon the estate of the debtor, Abner C. Wetmore, who was insolvent and had made an assignment for the benefit of his creditors. The plaintiff presented its claims to those commissioners in insolvency and the latter allowed them and determined their amount; but nothing was realized thereon from that proceeding. Now this proceeding, in its results, did not amount to a judgment in favor of the plaintiff against Abner 0. Wetmore for the amount of the claims of the former against the latter; there was no adjudication that the plaintiff recover the amount against Wet-more. It but settled—determined the amount due the former from the latter for the purpose of that proceeding— nothing more; and if deemed a judgment, still there was no execution thereon, even if a judgment recovered in another state, with execution thereon returned unsatisfied there, would aid the plaintiff’s case. The learned judge was in error, as we think, in holding that the plaintiff had exhausted its remedy at law, within the requirements of the decisions above cited. This conclusion necessitates a reversal of the judgment, without considering other questions discussed before us on the argument; and as this objection to the recovery goes to the right of action as made on the complaint, judgment final should be awarded in favor of the defendant, with costs.

Judgment reversed, judgment final ordered for the defendant, with costs.

Learned, P. J., concurs; Landon, J., not sitting.  