
    BRESNAHAN v. NUGENT.
    Fraudulent Conveyances — Estates oe Decedents — Remedy of Administrator.
    An administrator cannot maintain a bill in equity under 2 How. Stat. § 5884, to set aside a deed of his intestate as in fraud of creditors, for the sole purpose of reaching the proceeds of crops growing upon the land at the time of the conveyance. The remedy in such case is in an action at law.
    Appeal from Kent; Grove, J.
    Submitted June 13, 1895.
    Decided September 27, 1895.
    Bill by John Bresnahan, administrator of the estate of Daniel Nugent, deceased, against Emanuel Nugent, to subject to the claims of creditors assets alleged to have been fraudulently conveyed by the decedent. From a decree dismissing the bill on demurrer, complainant appeals.
    Affirmed.
    J. H. Tatem, for complainant.
    Taggart, Wolcott & Ganson, for defendant.
   Hooker, J.

This cause is here upon general demurrer to complainant’s bill of complaint, an appeal having been taken from an order sustaining the demurrer and dismissing the bill.

The bill alleges that the complainant was appointed administrator of the estate of Daniel Nugent on July 19, 1888; that on June 10, 1890, commissioners on claims in said estate allowed claims against said estate in favor of James Nugent to the amount of $2,255.03; that prior to his death, and on March 31, 1879, the intestate conveyed, by bill of sale, to the defendant, all of his personal property in the county of Kent, and, by deed, all of his real estate in said county; that upon said real estate a crop of wheat was growing, which, when ripe, was harvested and sold by the defendant, and $1,040, received therefor, was appropriated by said defendant. Subsequently the land was sold upon foreclosure of a mortgage, except one parcel. The bill states, further, that said transfer was fraudulent as ágainst creditors, and that it has been so adjudicated in an action tried in the Kent circuit court on May 20,1885, as between the parties to this suit, who were the partie:s in interest in that action, and that defendant is thereby estopped and barred from denying the fraudulent character of said deed. It is further alleged that on October 4, 1890, the complainant brought assmnpsit against the defendant to collect from the defendant the amount of the claims of James Nugent, on the ground that'the transfer of personal property was fraudulent and void as against Daniel Nugent’s creditors, and that on December 21, 1892, he obtained judgment-in the Kent circuit for $1,600, wherein said transfer was held fraudulent. Such judgment was afterwards modified and affirmed by this court (Bresnahan v. Nugent, 97 Mich. 359), and the defendant paid $947.25, that being the value of said personal property, as found by the jury, witb interest. Afterwards the parcel of land hereinbefore mentioned as excepted from foreclosure was sold by order of the probate court, and the proceeds applied on the judgment. After crediting all property in the hands of the complainant, $1,232, principal, and $405, interest, is yet due upon this judgment, and there is no available property to pay the same. A decree is asked declaring the deed to the land upon which the wheat grew to be void, and that defendant be required to pay this sum of $1,040, received for wheat, with interest thereon, to the administrator.

This proceeding is commenced under 2 How. Stat. § 5884, which is as follows:

“When there shall be a deficiency of assets in the hands of an executor or administrator, and when the deceased shall, in his lifetime, have conveyed any real estate, or any right or interest therein, with the intent to defraud his creditors, or to avoid any right, debt, or duty of any person, or shall have so conveyed such estate that by law the deeds or conveyances are void as against creditors, the executor or administrator may and it shall be his duty to commence and' prosecute to final judgment any proper action or suit, at law or in chancery, for the recovery of the same, and may receiver, for the benefit of the creditors, all such real estate so fraudulently conveyed; and may also, for the benefit of the creditors, sue and recover for all goods, chattels, rights, or credits which may have been so fraudulently conveyed by the deceased in his lifetime, whatever may have been the manner of such fraudulent conveyance.”

The bill appears to be filed upon the theory that the wheat in question passed to defendant by the deed of the land, and that he acquired a title that can only be set aside by declaring the deed fraudulent and void, which, it is said, only a court of equity can do. It appears from the bill that all personal property of other kinds was held to have been fraudulently conveyed, and this by a court of law in an action of assumpsit. There can be no doubt that the crop of wheat in question might have been, if it was not, conveyed by the same bill of sale; and, if it was, there would seem to be no reason why the proceeds might not be recovered in an action of assumpsit, as well' as the value of'horses and other chattels. In fact, the record of the former case shows that this was attempted, but apparently, failed, through defective pleading. However that may be, there seems no escape from the position that such recovery might have been had in assumpsit, and that such remedy is adequate, unless it can be said that the wheat did not pass under the bill of sale, 'and did by the deed, and, further, that only a court of chancery can hold such transaction void. It certainly did pass by the deed if it did not by the bill of sale.

But it makes little difference whether it be said to have been conveyed by the deed or bill of sale. If it was in fraud of creditors, it was subject to levy and sále, and the validity might be tried in an action at law, as was held in Pierce v. Hill, 35 Mich. 197. Here the administrator attacks the transfer under the statute, that he may acquire enough of the intestate’s property to pay his debts. As stated by Mr. Justice Marston in Pierce v. Hill, supra:

“In such case it would make no difference whether the sale was a verbal or a written one, under seal or without seal. * * * The law, in dealing with such sales, does not, out of respect to the instrument by which the fraudulent conveyance was made, hesitate to declare such a sale void.”

To reach real estate, the intervention of chancery is usually necessary. When defendant harvested or received money for this wheat, which, while so far partaking of the nature of real estate as to pass with the land by deed, did not sufficiently resemble it to be considered an interest in land, within the statute of frauds, or to pass to the heir instead of the administrator, no good reason appears why this wheat or money should not be subject to recovery by an action at law. No attempt is made to reach the land, which all admit is beyond reach; and we think the invalidity of the transfer may be tried and determined at law as well as in equity. The demurrer was, in our opinion, properly sustained.

Several questions likely to be raised upon a hearing upon the merits are passed without discussion, inasmuch as they do not appear to be within the issue made by the pleadings.

The decree of the circuit court will be affirmed, with costs.

The other Justices concurred.  