
    William H. Swihart et al. v. Amos Shaum et al.
    1. A person indebted conveys his property, by way of gift or advancement, among his children. His two sons, in part consideration of the portion conveyed to them, agreed to pay his debts. In a suit by a judgment creditor, whose debts accrued before the division, to subject the lands so conveyed to the payment of his judgment, the land conveyed to the sons ought to be first subjected. ,
    2. In such suit the judgment, in the absence of fraud or collusion in obtaining it, is conclusive evidence both as to the fact and the amount of indebtedness, not only as between the parties to the judgment, but as between and against “the parties to whom the judgment debtor had conveyed the property sought to be subjected to its payment; and this conclusive effect of the judgment is not affected by the fact that it was recovered after the conveyance of the property.
    Motion for leave to file petition in error to reverse the judgment of the District Court of Tuscarawas county.
    The original action was brought by Amos Shaum against Andrew D. Swihart, the judgment debtor, and others, to subject lands conveyed by the judgment debtor to his sons-in-law, John Lewis and Hosea Eisher, and his sons, Philip and William Swihart, to the payment of the judgment.
    The following facts appear from the record : The indebtedness, upon which the judgment was founded, accrued in the year 1864, upon a written contract between plaintiff and Andrew D. Swihart. At the February term, 1873, of the-Court of Common Pleas, the plaintiff recovered a judgment for $1,910.45. The judgment debtor has no property subject to levy and sale on execution. After the indebtedness upon which the judgment was founded had accrued, and while it was subsisting, the said A. D. Swihart conveyed the lands described in the petition to his said sons-in-law and sons, partly as gifts or advancements, and partly for valuable consideration; to John Lewis, land of the value of $5,400, Lewis paying therefor $1,000 to the grantor;, and to a daughter of the grantor, $2,000, and to another daughter, $400 (a debt due from her father to her), leaving $2,000 as a gift or advancement; to said Fisher, lands to the value of $2,000; to Philip and Wm. Swihart, lands of the .value of $20,000, without any valuable consideration,, except that the grantees agreed to support the grantor during the remainder of his natural life, and pay his debts. The first stipulation was afterward canceled by the payment to him of $1,000. The value of the lands thus conveyed to said Philip and William, over and above the-amount of their father’s indebtedness, and the value of his support, was $12,000. A short time after this conveyance to them, Philip and William died, and the said lands descended to their heirs, the plaintiffs in error.
    The lands so conveyed constituted all the property of the judgment debtor, he reserving nothing for the payment of his debts.
    Lewis and Fisher answer separately, and insist that the lands conveyed to Philip and William ought to be first, subjected to the satisfaction of the judgment,
    
      The plaintiffs in error, who were defendants below, interpose, by way of defense :
    1. A general denial.
    2. That the supposed promise of Philip and William Swihart to pay their father’s debts was not in writing.
    3. That the indebtedness of the judgment debtor to the judgment creditor, at the time the judgment was recovered, was only $300, and that the judgment was recovered against' the said A. D. Swihart by reason of his negligence in defending said action.
    4. That the judgment creditor knew that said indebtedness, at that time, was only $300.
    5. That the judgment was obtained by fraud and collusion.
    The allegations contained in the fourth and fifth defenses were denied by reply, and demurrers were interposed by plaintiff and Lewis and Fisher to the second and third defenses. The demurrers were sustained.
    On the trial, the court found the issues against the plaintiffs in error, and the facts to be as above stated, and ordered a part of the lands conveyed to Philip and William Swihart to be sold to satisfy the judgment and costs.
    On error, the judgment was affirmed by the District Court. The errors now relied on, are: 1. The court erred in sustaining the demurrers ; 2. In ordering the sale of the property of the plaintiffs in error only, to satisfy the judgment.
    To reverse this judgment, leave is asked to file a petition in error.
    
      J. Patrick, Jr., A. L. Neely, and J. H. Booth, for plaintiffs in error:
    1. In the absence of the promise alleged to have been made by Philip and William Swihart, to pay the debt of Shaum, equity would have apportioned said debt pro rata between the infant wards of said Philip and William and said Fisher and Lewis. 2. If such promise was made as alleged, the court would .not be justified in charging the whole of said debt against the property of said infant wards, until a judgment had been obtained by Shaum, on such promise, against the legal representatives of said Philip .and William. A court of equity must base such action on a judgment at law. Thompson v. Thompson, 4 Ohio St. 333. 3. The infant wards of said Philip and William are not bound, either as parties or privies, by the judgment obtained by said Shaum against said Andrew L. Swihart. 1 Stark. Ev. 254; 1 Greenleaf Ev., secs. 522, 523.
    
      jReady § Stockwell, for defendants in error :
    To the objection, that the promise of Philip and William, not being in writing, was void, it is'a sufficient answer to say that the action is not, in any sense, founded on that promise.
    All these conveyances, in so far as they were voluntary, were fraudulent and voidable, as to the creditors of the grantor, and may be, after judgment, subjected to the payment of their claims. Brice v. Myers, 5 Ohio, 121; 2 Ohio St. 374; 7 Ohio, 84; 11 Ohio, 394.
    A promise of the kind referred to, is not within the statute of frauds. Browne on Stat. of Frauds, secs. 165, 166; Dearborn v. Parks, 5 Greenleaf, 81; Whitbeck v. Whitbeck, 9 Cow. 266; Rowe v. Whither, 21 Maine, 545; Maxwell v. Hains, 41 Maine, 559; Colt v. Root, 17 Mass. 229; Perly v. Spring, 12 Mass. 297; Towne v. Grover, 9 Pick. 306.
    The record in the case in which the judgment was rendered, conclusively establishes two things : 1. That the defendant below Andrew D., Swihart, at the time, was indebted to the plaintiff below in that case ; 2. The amount of that indebtedness. Starr v. Starr, 1 Ohio, 321; 10 Ohio, 230; Candie v. Lord, 2 Comstock, 269, and case there cited.
    A judgment of a court of competent jurisdiction, secured without fraud or collusion, can not be collaterally impeached. 4 Ohio, 138, 327; 5 Ohio, 522; 8 Ohio, 107; 12 Ohio, 253; 15 Ohio, 447; 17 Ohio, 409; 18 Ohio, 323; 20 Ohio, 34.
    No right is more clearly defined in law than the right of the plaintiff helow to relief in this form of action. Nicholson v. Pim, 5 Ohio St. 25.
    The court could discriminate between the parties before it, in view of the contract, and so mold the rights of all the parties to the suit before the court as to impose the burden of the payment of this judgment, where equity and' justice clearly indicates that it ought to belong. 13 Ohio, 543; 15 Ohio, 568; 1 Story Eq. 330.
    The objection to considering the promise in this form of action is technical, and was waived by the pleading and the admission of testimony on that point without objection. 5 Ohio St. 25, and the authorties there cited; 1 Ohio, 124.
    
      I. G. Hance, for Fisher and Lewis.
   White, J.

The issues of fact having been found by the court below against the plaintiffs in error, two questions only arise on the record. These are (1) whether the court erred in sustaining the demurrer to the defense setting up the statute of frauds; and (2) in sustaining the demurrer to the third defense, which set up that the indebtedness on which the judgment was rendered was only three hundred dollars, and that the judgment was recovered for a larger amount by reason of the negligence of the judgment debtor in defending the action.

The first of these alleged errors we do not understand to-be now insisted upon in argument. It is sufficient to sayr in regard to it, that the demurrer was properly sustained. The promise in question was an original one, and, as respects the statute of frauds, the effect of .the promise-would be the same, whether the payment was to be made to the grantor or to his creditors.

In regard to the second alleged error, two proposition® are relied on by the plaintiffs in error: 1. That the property conveyed by the judgment debtor to his sons, William and Philip, ought not to be exclusively subjected to the payment of the judgment until the judgment creditor •obtained judgment on such promise against their personal representatives. 2. That the plaintiffs in error are not bound, either as parties or privies, by the judgment.

Of these propositions in their order:

The creditor could not be compelled to resort to the •promise, the record showing that the property received by 'William and Philip was largely in excess of that for which •they assumed to pay. The debtor divided among his children all his property; the promise, therefore, was for the protection of the other donees, who had an equitable right -to its performance. If the debts were paid, the property .given to them would be discharged from liability; if they were not paid, such property was liable to be subjected to •such payment. As between the other donees, and William and Philip, the latter were primarily bound to pay the debts .and save the latter harmless therefrom. As the obligation related to the property with which the court was dealing^ we see no objection to its enforcement in that suit.

The second proposition is equally untenable.

In a suit by a creditor, to subject to the payment of his judgment the property of his debtor fraudulently conveyed, the judgment, in the absence of fraud or collusion in obtaining it, is conclusive evidence both as to the fact and the amount of indebtedness. Gandie v. Lord, 2 Comst. 269; JStarr v. Starr et al., 1 Ohio, 321. And it can make no difference whether the conveyance is fraudulent in fact or fraudulent in law.

The issue tendered by the plaintiffs in error, that the judgment was obtained by-fraud and collusion, was found •against them. The defense, setting up that only three hundred dollars were due the creditor, and that judgment was recovered for a larger amount by the negligence of the debtor, was immaterial, except in so far as the matter thus set up tended to show collusion or fraud. No facts are stated to show in what the negligence of the debtor consisted.' It is not stated that he did not make defense to the action, nor is it alleged that the claim was not asserted in good faith.

The ground relied on is that the plaintiffs in error are not bound by the judgment, because, it is said, they are not in privity with the judgment debtor.

We think otherwise. They claim the land in controversy under the judgment debtor, and are thus in privity with him. At the time of the conveyance, the land was liable for the payment of the debts of the grantor. The cojiveyance being voluntary, the grantees took the property subject to the right, implied by law, in existing creditors to have it appropriated to the payment of such demands as might in good faith be adjudged in their favor against the grantor.

If the judgment does not bind the grantees, it wouldseem to'follow that the creditor would not be bound by it; aud that if the amount of the indebtedness could be diminished-at the instance of one party, it could be increased at the instance of the other.

In our view, the judgment is conclusive, not only as between the parties to it, but as between and against the-parties to whom the judgment debtor had conveyed the property sought to be subjected to its payment; and this-conclusive effect of the judgment is not affected by the fact that it was recovered after the making of the conveyance.

Leave refused.

Hat, C. J., McIlvaine and Rex, JJ., concurring. Welch,, J., not sitting.  