Statement of the Case. assignment of property in fraud of creditors or to hinder or delay creditors within the contemplation of Section 6343, Revised Statutes. 3. In such case the only remedy of the creditor is found in the provisions of Section 3628, Revised Statutes. (No. 11713-Decided March 28, 1911.) ERROR to the Circuit Court of Cuyahoga county. This action was brought in the court of common pleas by the persons now plaintiffs in error, against the Equitable Life Insurance Company of Iowa, Emma C. Baldinger and Frederick D. Baldinger, a minor. The object of the action was to have the court declare fraudulent as against creditors of A. F. Baldinger, deceased, certain assignments made by him of policies of life insurance issued on his life by defendant life insurance company and assigned by him to his wife, Emma C. Baldinger, and his minor son, Frederick D. Baldinger, and to secure the application of the proceeds of said policy to the payment of a debt due the plaintiffs and to the debts of the other creditors of said Baldinger, deceased. The petition averred the indebtedness of A. F. Baldinger to Rebecca J. Price, which indebtedness was evidenced by a promissory note dated July 23, 1896, calling for three thousand dollars with interest, and signed by A. F. Baldinger. It further averred the death of Rebecca J. Price and the terms of her will, by which the plaintiffs in error were made sole beneficiaries, and the assignment by her executor of this note to these plaintiffs in error as a distribution to them in kind of part of the estate of said Rebecca J. Price. Statement of the Case. It further avers the issuing of the policies to A. F. Baldinger, and that while he was still indebted upon this note, and no part thereof having been paid, he assigned said policies to Emma C. Baldinger and Frederick D. Baldinger, a minor, under the age of fourteen years; that at the date of said assignments of said policies that A. F. Baldinger was wholly insolvent and had not sufficient property aside from these policies to pay and discharge his indebtedness, and at the date of his death said Baldinger had no property or estate whatever aside from said policies and said assignment of said policies was wholly without consideration and in fraud of the rights of the plaintiffs and other creditors of said A. F. Baldinger, and prayed that said assignment of said policy may be held and decreed to be fraudulent and the same set aside and held for naught, and for such other and further relief to which they might be found to be entitled. The Equitable Life Insurance Company paid into court the sum of ten thousand dollars, being the sum of the three policies issued by it on the life of A. F. Baldinger and was dismissed from the action. Emma C. Baldinger was appointed administratrix of the estate of A. F. Baldinger and made a party defendant in her representative capacity. Emma C. Baldinger filed a general demurrer to the plaintiffs' petition, which demurrer was overruled by the common pleas court, and she thereupon filed an answer, and also answered in her representative capacity as the administratrix of the estate of A. F. Baldinger. Upon the issues Argument for Plaintiffs in Error. joined between the plaintiffs and Emma C. Baldinger a decree was rendered by the common pleas court in favor of plaintiffs as to part of said policies and in favor of Emma C. Baldinger as to others. The plaintiffs and Emma C. Baldinger both appealed from this judgment of the common pleas court. The two appeals were consolidated in the circuit court and that court sustained the general demurrer of Emma C. Baldinger to the plaintiffs' petition, and the plaintiffs not desiring to amend or further plead, the petition was dismissed and judgment rendered against the plaintiffs for costs. It was suggested upon oral argument of this cause that this transfer was made to Emma C. Baldinger, wife of A. F. Baldinger, and now his widow, and that Frederick D. Baldinger was not one of the assignees and that this petition should be considered the same as if his name did not appear therein. Messrs. Blandin, Rice & Ginn; Messrs. Hidy, Klein & Harris and Mr. Charles G. Reynolds, for plaintiffs in error. The act of February 12, 1893, amending Section 17 of the "act regulating the mode of administering assignments in trust for the benefit of creditors," (now Section 6343, Revised Statutes), applies to conveyances constructively as well as those actually fraudulent as against creditors. Jamison v. McNally, 21 Ohio St., 295; Laudenback v. Foster, 39 Ohio St., 206; Bank v. Miller, 9 C. C., 111. Argument for Plaintiffs in Error. Both the amendment of 1898 and that of 1902 to Section 6343, Revised Statutes, came under consideration by the supreme court in the case of Bobilya v. Priddy, 68 Ohio St., 373. The supreme court held the section thus amended to be constitutional; construing it to have no application to purchases in good faith and for fair value from an insolvent debtor. The court pointed out that the language in said amended Section 6343 is not stronger than that employed in the Statute of Frauds (Section 4196, Revised Statutes), and that the latter section had been held since the decision of Burgett v. Burgett, 1 Ohio, 469, to have no application to sales made to innocent purchasers for value. The relief sought, and to which plaintiffs are entitled, if entitled to any relief, was not the surrender value of the policies at the time of the fraudulent conveyance, but their value at the time. suit was brought. These life insurance policies were simply securities for money, choses in action, and subject to every rule of property known to the law. An assignment, fraudulent as to creditors, passed no title as against them. The policies always remained the property of Baldinger for the purpose of satisfying his pre-existing debts: whether the plaintiffs shall have relief depends not on the value at the time of the conveyance, but on whether the amount they show themselves entitled to recover in the action merits to be dignified by judicial consideration. Savings Bank v. McLean, 84 Mich., 625; Appeal of Elliott's Exrs., 50 Pa. St., 75; Burton v. Farinholt, 86 N. Car., 260. Argument for Defendants in Error. Laws similar to Sections 3628 and 3629, Revised Statutes, have quite generally been adopted by the various states, and we think the construction contended for has not generally been put upon them by the courts. 2 May on Insurance, Sec. 459e; Friedman Bros. v. Fennell, 94 Ala., 570; Burton v. Farinholt, 86 N. Car., 270; Bank v. McLean, 84 Mich., 625. Mr. William Howell and Mr. T. J. Ross, for defendants in error. The petition is insufficient in that it contains no allegations of any fact or facts showing that the plaintiffs or other creditors of Baldinger were in any way injured or delayed by the assignment of these policies. That property is of no value, or of mere trifling value, cannot be the subject of a fraudulent conveyance, is well established; the whole theory of the law on this subject being that the debtor has parted with something of value which the creditors might have subjected to their claims. Waite on Fraudulent Conveyances, Sec. 23; 1 Moore on Fraudulent Conveyances, Sec. 4. Under the bankrupt law, the adjudication in bankruptcy transfers to the trustee all property of the bankrupt in any manner transferable by him; but in the application of this law, the courts hold that insurance policies do not pass to the trustee unless they have vendible value. If they have no cash value, they remain the property of the bankrupt. Creditors cannot continue them in force, and |