
    Romulo Di Manna vs. David H. Haley et al.
    Eq. No. 9211
    February 4, 1929.
    For plaintiff: E. D. Higgins.
    For defendant: William H. McSoley.
   TANNER, P. J.

This is a bill in equity brought against the respondents Haley, O’Oonnell and Danforth. It alleges that the complainant did work, labor and construction on a house upon a certain lot by contract with said Haley; that Haley never had the title to said lot and that the title was in the respondent O’Oonnell on a 'trust to convey it to Haley whenever Haley desired; that the respondent Danforth holds two mortgages upon said land.

The bill is heard upon demurrer on the ground that the complainant is a simple contract creditor without judgment.

The complainant argues that he is seeking to enforce a trust against said O’Oonnell and Haley. We do not think, however, .that it makes any difference whether O’Connell obtained title under a trust to Haley or whether Haley had the title and fraudulently conveyed it to O’Oonnell. This 'State has adopted the rule that, with a few exceptions not applicable here, a simple contract creditor must obtain judgment before he can reach equitable assets by a bill in equity. The theory is that simple contract creditors should first establish their claims at law before they should be allowed to resort to equity to challenge the effect or results of conveyances where the title is in a third party.

The demurrer is therefore sustained.  