
    SCOVILLE v. HALLADAY.
    
      N. Y. Supreme Court, Fourth Department ; General Term,
    
    
      April, 1885.
    Creditor’s action, to establish resulting trust. —Election on REMEDIES, BY EXECUTION OR ACTION.-—-TRUST RESULTING TO CREDITORS ON CONVEYANCE FOB CONSIDERATION PAID BY THIRD PERSON.—3 R. S. 174, §§ 38, 39.-Code Civ. Pro. §§ 1871, 1873.—3 R. S. 135, § 1; 137, § 1.—Judgment, though no LONGER LIEN, "WILL SUSTAIN ACTION. A creditor may reach real property -which his debtor paid for, but caused to be conveyed to another person, although his judgment never was a lien on the property, or, by reason of the lapse of time, has ceased to be a lien on any real property.*
    *See also Wright v. Nostrand, 94 N. Y. 31; rev’g 47 Super. Ct. (J. & S.) 441. So execution may be issued and real estate sold, notwithstanding the expiration of the lien of the judgment. Siegel v. Anger, 13 Abb. N. C. 362.
    A judgment is not a lien on real property or chattels real until the judgment roll is filed and the judgment docketed. Code Civ. Pro. § 1359.
    And the lien continues for ten years only after filing the judgment roll (Id. § 1351), unless the creditor has been stayed meanwhile (Id. § 1355); but a lien inay thereafter be had by execution and notice. Id. § 1353.
    See Note on Action to enforce the Trust resulting for Creditors, at p. 30 of this volume.
    Appeal from a judgment.
    George B. Scoville, as receiver, &c., of Joel A. Halladay, brought this action against Bronson A. Shed and Marion Shed, his wife, to compel the application to a judgment recovered by Halladay against the husband, of real property which had been conveyed to the wife at the instance of her husband.
    
      March 9, 1870, Joel A. Halladay recovered a judgment against Bronson A. Shed and John N. Loehr for $642.42, upon which $83 was collected in April 1870. The remainder of the judgment is unpaid. Two executions have been returned unsatisfied upon the judgment. March 8, 1880, the plaintiff in this action was appointed the receiver of the property of Joel A. Halladay, and the title to the judgment then became, and has since remained vested in the receiver. January 8, 1878, a farm was conveyed to Marion Shed, the wife of Bronson A. Shed. It is alleged in the complaint that the farm was paid for by Bronson A. Shed (the judgment debtor), and the title taken in the name of the wife to prevent the husband’s creditors from collecting their claims. This action was begun January 29, 1883, to recover a judgment, declaring that the judgment debtor owned, or had an interest in the farm, and to charge it with the payment of the plaintiff’s claim, through a receiver to be appointed, with power to sell. Upon the trial, evidence was given, tending to show that the farm was paid for in part by the husband. The court refused to determine whether the husband had paid for the farm in part, on the ground that the judgment having ceased to be a lien on real estate, the action could not be maintained. A decision was signed and filed, to which the plaintiff excepted. Neither defendant pleaded the statute of limitations as a bar to the action. Judgment was entered dismissing the complaint, with costs, from which the plaintiff appeals.
    
      Wayland F. Ford, for plaintiff, appellant.
    O’Brien & Emerson, for defendants, respondents.
   By the Court.—Follett, J.

When a debtor transfers to a fraudulent transferee the legal title to property- subject to sale on execution, a judgment creditor may disregard the conveyance, sell the property while in the hands of the fraudulent transferee under an execution, and if possession is withheld from the purchaser, he may establish the fraudulent transfer, and recover the property in ejectment, or replevin. This is the common law remedy, which has existed since the statute of 13 Eliz., chap. 5.

Instead of resorting to this legal remedy, a judgment creditor may maintain an action to set aside the fraudulent conveyance in aid of his execution, but if by lapse of time, or for any cause, a sale cannot be had under the execution, such an action cannot be maintained. The early English cases, and some of the early cases in this State, held that a bill in equity could not be maintained for the recovery of property unless it was such as was subject to sale under execution ; that equity followed the law, and that money, stocks, etc., were not enumerated in the statute above cited. This doctrine was exploded in Spader v. Davis, 5 Johns. Ch. 280 ; and affirmed, 20 Johns. 554. Subsequently, the doctrine of the case last cited was somewhat limited in Donovan v. Finn, Hopk. 59, which led to the enactment of the section of the revised statutes which provided that a judgment creditor might file a bill in chancery against the judgment debtor and any other pers'on, to compel the discovery of any property or thing in action belonging to the judgment debtor, or of any property, money or thing in action due, or held in trust for him, whether the same might, or might not have been originally taken in execution (2 S. 8. 174, §§ 38, 39). This provision of the revised statutes is continued by sections 1871 and 1873 of the Code of Civil Procedure, and when property is discovered, it may be recovered (3 R. S. 135, § 1; 2 R. S. 137, § 1)

The case at bar is not to set aside a conveyance in aid of the judgment. The judgment debtor never held the legal title to the farm ; and setting aside the deed to the wife would not vest the title in the husband, or in any way aid the collection of the judgment by an execution (Garfield v. Hatmaker, 15 N. Y. 475). This action is brought under the sections of the Code above cited, to recover property paid for by the husband, and held by the wife. Should it be established on the trial that this property was paid for by the husband, in whole or in part, it, or his interest therein, could be applied in payment of the plaintiff’s claim, notwithstanding the judgment never was a legal lien on the farm, and notwithstanding the fact that more than ten years have elapsed since it was recovered.

The court erred in refusing to determine the question of fact, and in dismissing the complaint on the ground that the action cannot be maintained because the judgment is not a lien on real estate.

The judgment is reversed, and a new trial ordered, costs to abide the event

Hardin, P. J., and Boardman, J., concurred. 
      
       Present, Hardin, P. J., Boardman and Follett, JJ.
     
      
       See in support of this rule and the alternative remedies, Errickson v. Quin, 15 Abb. Pr. N. S.
      
     
      
       See note on p. 31 of this vol.
     
      
       See these statutes analyzed and contrasted at p. 33 of this vol.
     
      
       See the statute on this subject at p. 35 of this volume.
     