
    Case 62 — PETITION EQUITY —
    May 17.
    Stamper, &c., v. Hibbs, &c.
    appeal prom carter circuit court.
    Fraudulent Conveyance — Assignment by Operation op Law.— Where a creditor assails a transfer made by his debtor upon, the ground of actual fraud and obtains his attachment, he has, upon establishing the fraud, a prior lien, and other creditors coming into the action have subordinate liens, dating from the filing of their petitions. p And in the absence of any pleading bringing the case within the statute against fraudulent preferences, it is error to the prejudice of the debtor to adjudge that there has been an assignment by operation of law of all his estate for the benefit of creditors.
    STONE & SUDDUTH, Z. T. YOUNG por appellants.
    Under a suit to set aside a conveyance as absolutely fraudulent, a judgment can not be rendered declaring a preference. (Wintersmith v. Pointer, 2 Met., 460; Beatty v. Dudley, 80 Ky., 381.)
    E. B. WILHOIT por appellees.
    1. The appellant Wm. Stamper shows by his answer that he has no interest in the property adjudged to be sold, and he nowhere shows that his substantial rights are affected by the judgment.
    2. The evidence establishes the alleged fraud.
   JUDGE PRYOR

delivered the opinion op the court.

This judgment as to William Stamper must be reversed. There is no charge of a fraudulent preference made by 'William. Stamper for the purpose of securing creditors, and therefore it ivas improper to adjudge that, in contemplation of insolvency, and with a design to prefer, he had conveyed his property. When constructive fraud exists by reason of the statute, the title to the entire estate of the debtor passes by operation of law to his creditors, and this statute was enacted to prevent a failing debtor from giving a preference to one creditor over another, and where a preference is made all creditors share alike, unless there are bona ficle liens ; but in case of actual fraud the creditor who assails the transfer on that ground and obtains his attachment, there being, no pleading to bring the case within the act of 1856, has his prior lien, when establishing the fraud, and other creditor's coming into the action have subordinate liens dating from the time of filing their petitions. It is claimed that William' Stamper has no interest in this controversy. He has this interest: His entire estate is made to pass to all creditors by the judgment when there is neither pleading nor proof authorizing it.

Judgment reversed as to appellant William Stamper, and affirmed as to the other appellants.  