had the transfer not been made. In the language of Judge Earl in Loos v. Wilkinson, 113 N. Y. 485, 10 Am. St. Rep. 495, this "would be spoliation, not justice or equity."

The authorities so carefully selected and skillfully preBented by the counsel for the appellant we do not regard as conflicting with the views so far expressed. In Smith v. White, 7 N. Y. Supp. 373, a general assignment was declared fraudulent, and on the accounting the assignee, because of his being a party to the fraud vitiating the assignment, was not allowed moneys disbursed in the payment of preferences, as provided by the assignment.

In Wood v. Hunt, 38 Barb. 302, the fraudulent grantee, subsequent to the conveyance to him, voluntarily paid the demands which certain creditors of the grantor had against him, and in the judgment declaring the deed fraudulent and void, reimbursement for such sums was refused him.

In Union Nat. Bank v. Warner, 12 Hun, 306, the fraudulent grantee had assumed the payment of certain debts which the grantor undertook to charge on the real estate by the instru ment of conveyance. The deed was adjudged void, and allowance for the obligations assumed denied.

In Davis v. Leopold, 87 N. Y. 622, the fraudulent grantee assumed the payment of a pre-existing mortgage, and on review of the judgment setting aside the deed, this court said: "If it was true, under the findings, that Mrs. Leopold was entitled to protection for the sum paid or the liability assumed, it would indeed be necessary to state the amount. But she was a guilty participant in the fraud, and not to be cared for." It does not appear from the report of the case, however, that the grantee had paid the mortgage, or that it did not still continue to be a lien on the premises. The answer denied fraud, and alleged a consideration. It averred that the conveyance was in payment and satisfaction of a debt due from the husband, and her agreement to pay certain mortgages and encumbrances upon the property.

Whatever she had agreed to pay for the property, whether in money or by way of assuming the payment of valid encumbrances, formed a part of the fraudulent transaction, and in an action to set aside the conveyance the court would leave the parties in the position in which they placed themselves. If the mortgage still continued in force, as we may assume it did, the judgment setting aside the conveyance did not affect its validity, nor the right of the mortgagee to enforce its col

lection out of the property. The assumption of its payment by the fraudulent grantee was a burden assumed in her own wrong, the consequences of which the court would not attempt to shield her from.

A very different question would have been presented had the plaintiffs demanded judgment that she be decreed to pay the mortgage; or had the property been previously sold, that judgment be awarded against her for the full value of the premises, and without deducting therefrom the amount secured by the mortgage.

In Borland v. Walker, 7 Ala. 269, the grantee agreed to pay certain specified but unsecured debts of the grantor, and to pay the balance of the purchase price in installments. The conveyance was set aside, and the grantee refused indemnity for the sums expended.

It will be observed that in the cases cited, with the exception of Davis v. Leopold, 87 N. Y. 622, to which we have sufficiently alluded, the question was whether a fraudulent grantee could be reimbursed for moneys paid, or agreed to be paid, as a part of the fraudulent transaction. To that question but one answer is ever given. The equity of the creditors extends to the full value of the debtor's interest in the property at the time of the fraudulent conveyance, and the fraudulent grantee cannot be allowed to cut down or interfere with the interest to which such equity attaches.

But quite a different question is presented where, as here, the creditors undertake to compel the fraudulent grantee or transferee to respond to them for an interest in property which he did not seek to get, and which his grantor or vendor did not have to convey or transfer to him.

In such a case the plaintiffs are without any equity on which to base a right of recovery.

The trial court found that on the day of the transfer the securities were worth five hundred dollars more than the defendant subsequently realized for them, but a recovery was only allowed for the sum received.

We think the judgment should have been for their value. The defendant wrongfully acquired title to the securities, and if he parted with them for less than they were worth, the loss should fall on him.

The judgment should be modified accordingly, and, as modified, affirmed, with costs to the appellant.

FRAUDULENT CONVEYANCES. RIGHTS OF CREDITORS

COVERY.

AMOUNT OF RE-The rights of a creditor cannot be defeated by a fraudulent mort. gagee by selling the mortgaged premises: Mandeville v. Avery, 124 N. Y. 376; 21 Am. St. Rep. 678. A judgment recovered subsequently to a fraudulent conveyance, and based upon an indebtedness contracted partly prior and partly subsequent thereto, is a lien upon the property of the judgment debtor only to the extent of the indebtedness contracted prior to the fraudulent conveyance: Henderson v. Henderson, 133 Pa. St. 399; 19 Am. St. Rep. 650. A conveyance fraudulent as to existing creditors is not void as to subsequent creditors, where the statute provides that such conveyance shall be void only as to such as are defrauded; it operates to transfer the title to the property subject to the encumbrance of the grantor's existing debts: Bullitt v. Taylor, 34 Miss. 708; 69 Am. Dec. 412. Where the whole value of a homestead conveyed by a husband to his wife was forty thousand dollars, and it contained land, in excess of the exemption amount, worth five thousand dollars, and the husband was worth seventy-five thousand dollars over and above his debts at the time of the conveyance, the conveyance was not fraudulent as to his subsequent creditors: Pike v. Miles, 23 Wis. 164; 99 Am. Dec. 148. The value of property included in an alleged fraudulent conveyance is a material subject of inquiry: Weadock v. Kennedy, 80 Wis. 449. See also the case of Redfield v. Hewes, 67 Miss. 479.

MITCHELL V. Thorne.

[134 NEW YORK, 596.]

DEMURRER ON GROUND OF DEFECT OF PARTIES MUST SPECIFICALLY POINT OUT PARTICULAR Defect. When a demurrer to a complaint is based on the ground that there is a defect of parties plaintiff or defendant, the particular defect relied on must be pointed out specifically. DEMURRER TO COMPLAINT INTERPOSABLE ONLY FOR OBJECTIONS APPEARING ON ITS FACE. —A demurrer to a complaint can be interposed only for objections appearing on its face. Where, therefore, a plaintiff sues as heir of a deceased person, a demurrer to the complaint on the ground that other heirs are not made parties cannot be sustained, unless it appears from the complaint that there are other heirs. MONUMENT AT GRAVE OF DECEDENT, ACTION BY HEIRS FOR INJURY TO OR REMOVAL OF.-The heirs of a decedent, at whose grave a monument has been erected, or the person who rightfully erected it, can recover dam. ages from one who wrongfully injures or removes it, or by an injunction may restrain one who, without right, threatens to injure or remove it, even though the title to the ground wherein the grave is be not in the plaintiff, but in another.

COMPLAINT IN ACTION TO RESTRAIN SPOLIATION OF BURIAL-PLACE, SUFFICIENCY OF. —A complaint in an action to restrain the defendant from removing grave-stones and interfering with a family burial-ground, which alleges that the father of the plaintiffs, together with his brothers and sisters, owned, as tenants in common, the farm upon which said family burial-ground is laid out, wherein the ancestors and collateral relatives of the plaintiffs had from time to time been buried, and their graves marked by mounds and memorial stones; that said co-tenanta

conveyed said farm to the person from whom the defendant deraigns her title, "excepting and reserving the right of interment "in said lot, “and also a right of way to the same, to all the grantors of this deed, and to their heir or heirs forever"; that the father of plaintiffs and all the grantors in said deed are now dead, and said reserved right of family burial has descended to the plaintiffs as heirs at law of the grantors in maid deed; that the defendant holds the farm subject to said reservation and exception; and that she has removed a part of the fence inclosing the burial-ground, destroyed some of the grave-stones marking the graves of the ancestors and relatives of the plaintiffs, graded away the mounds of the graves and obliterated all traces of them, and refuses a right of way to the plaintiffs to and from said ground, and threatens, by grading and leveling, to destroy it as a burial-place,—states facts sufficient to constitute a cause of action.

THE facts are stated in the opinion.

John M. Perry, for the appellant.

A. N. Weller, for the respondents.

FOLLETT, C. J. It is alleged in the complaint that the father of the plaintiffs, together with his brothers and sisters, owned as tenants in common a farm of two hundred acres, a small portion of which had been laid out and inclosed as a family burial-ground, wherein the ancestors and collateral relatives of the plaintiffs have been buried from time to time, and their graves marked by the usual mounds, and appropriate memorial stones.

It is further alleged that these tenants conveyed the farm to R. V. W. Thorne by a deed which contains the following language: "Excepting and reserving the right of interment in the ground laid off for that purpose in the land hereby conveyed, and also a right of way to the same, to all the grantors of this deed, and to their heir or heirs forever."

It is further alleged "that plaintiff's said father and all the grantors in said deed to the said R. V. W. Thorne are now deceased, and the easement or right of family interment or burial reserved in said farm or land has descended to plaintiffs as heirs at law of the grantors in said deed."

It is also averred that the defendant is the owner and in possession of the farm, subject to said reservation and exception under mesne conveyances, deriving her title ultimately from said R. V. W. Thorne, and that she has removed a part of the fence inclosing the burial-ground, destroyed some of the grave-stones marking the graves of the ancestors and relatives of the plaintiffs, graded away the mounds of the graves,

and obliterated all traces of them, and refuses a right of way to the plaintiffs to and from said ground, and threatens, by grading and leveling it, to destroy said burial-place.

The plaintiffs demand a judgment restraining the defendant from removing the grave-stones, grading the grounds, destroying and obliterating the graves, and also for damages.

To this complaint the defendant demurred on the grounds, 1. That the complaint does not state facts sufficient to constitute a cause of action; 2. That there is a defect of parties, because it is not alleged that all of the heirs of all the grantors, in whose favor the reservation herein before mentioned was made, are plaintiffs or defendants.

The second ground of demurrer, requiring but little consideration, may well be first determined.

When a demurrer to a complaint is based on the sixth ground specified in section 488 of the Code of Civil Procedure, "that there is a defect in parties plaintiff or defendant," the particular defect relied on must be pointed out specifically by the demurrer: Code Civ. Proc., sec. 490; Dodge v. Colby, 108 N. Y. 445; Story's Equity Pleading, secs. 236, 238, 543. The only defect under this subdivision pointed out by the demurrer is: "That the heirs at law of the father of the plaintiffs and of the other grantors in the deed to R. V. W. Thorne, mentioned in the complaint, are not, except the plaintiffs herein themselves, made parties plaintiff nor parties defendant." The answer to this ground of demurrer is, that it does not appear on the face of the complaint that the father of the plaintiffs and his brothers and sisters, or any one of them, left heirs other than the plaintiffs. A demurrer to a complaint can be interposed only for objections appearing on its face: Code Civ. Proc., sec. 488; Haines v. Hollister, 64 N. Y. 1; Story's Equity Pleading, secs. 226, 238, 543.

The first ground of demurrer remains to be considered. It has been decided many times, and frequently asserted by textwriters, that the heirs of a decedent, at whose grave a monument has been erected, or the person who rightfully erected it, can recover damages from one who wrongfully injures or removes it, or by an injunction may restrain one who, without right, threatens to injure or remove it, and this, though the title to the ground wherein the grave is be not in the plaintiff, but in another: Frances v. Ley, Cro. Jac. 366; Corven v. Pym, 12 Rep. 105; Spooner v. Brewster, 10 Moore, 494; 3 Bing. 136; 2 Car. & P. 34; Matter of Brick Presbyterian Church, 8