Benjamin v. Le Baron's Administrator.

Dec. Term

1846.

Rep. 192; and see 4 Cow. Rep. 216. In both these cases the IN BANK. representative was the heir. "A conveyance to defraud credi'tors is good against the grantor and his heirs, and is void only as "to creditors." Parsons, J., in Drinkwater v. Drinkwater, 4 Mass. Rep. 356.

"A deed made to defraud creditors, is void only as against creditors;" Burgett v. Burgett, and Douglas v. Dunlap, ubi. sup. "The statute only makes the sale void, as against creditors, and not as to the vendor or his personal representatives;" Babcock v. Booth, 2 Hill's Rep. 185. A voluntary deed is void, as to creditors, if made to their injury, but is binding on the donor, her executors, administrators and assigns, and all claiming under them, both at common law and under the act of assembly. The executor is estopped to alledge that the deed is in fraud of creditors. Dorsey v. Smithson, 6 Har. & Johns. 61.

"The bill of sale, though fraudulent as to creditors, is good 'between the parties, their heirs, executors, &c.; so that these ' effects could never be assets in the hands of the rightful ex'ecutor." Foster et al. v Newlin, 4 Missouri Rep. 18.

The case of Howland et al. v. Davis, Charlton's Rep. 383, was a case of a creditor against a grantee, as executor de son tort. The Court say: "The principle is, that the fraudulent bill of sale, as to the creditors, is void, and that any inter'ference with the goods conveyed after the death of the ven'dor, will make the vendee chargeable. In these cases, there 'can be no remedy in favor of the rightful executor or admin'istrator, because the conveyance is good against the grantor. It is the creditor only who can charge the vendor."

In the case of Osborne v. Moss, 7 Johns. Rep. 161, it is decided that a judgment, fraudulent and covinous as against the creditors of the judgment debtor, is, nevertheless, binding upon the judgment debtor and his administrator; and a sale of chattels to the fraudulent judgment creditor, upon execution issued upon said judgment, was held valid as against the administrator. The decision is made upon the authority of the

Benjamin v. Le Baron's Administrator.

IN BANK. case of Hawes v. Leader, Cro. Jas. 270; Yelv. 196. The Dec. Term, Court 1846. "In that case, the intestate made a grant of his say: goods to B, by fraud between him and B, to cheat the cred'itors, and he kept possession of the goods and died. B then 'sued the administrator for the goods, and he pleaded this 'covin and fraud, and the statute of 13 Elizabeth, which declares all such gifts and grants void as against creditors; but, on demurrer, the plea was held bad, and judgment was ren'dered for the plaintiff, on the ground, among others, that the 'deed was void only as against creditors, but that it remained ' good as against the party himself, and his executors and ad"ministrators." In the case in Johnson, as in the case now under consideration, the administrator was also creditor. The case, it seems to me, is very much in point.

Thus, I think it is proved by abundant authority, that the fraudulent conveyances in this case are good and valid, as against Le Baron and his personal representatives. This point being made good, the case of the defendant in error fails, and the judgment of the Court below must be reversed.

Daniel Peck, for Defendant in Error.

Can an administrator maintain an action under the circumstances disclosed in the bill of exceptions?

Here is the case of a man, who is indebted to a much greater amount than the value of all his property, for the purpose of defrauding his creditors conveys all of his property to his brother-in-law, without consideration, and dies. After his death the fraudulent grantee, by virtue of those conveyances, takes the possession of, and claims the property. Are the creditors of the fraudulent grantor without any remedy in such a case; and if not, what is their remedy? Can the administrator recover this property for the purpose of paying the debts?

It has always been held by this court, and is no doubt good law, that there can be no executor de son tort in Ohio. If the administrator cannot sue for and recover this property, as assets

Benjamin v. Le Baron's Administrator.

1846.

of the estate, in what manner can the creditor come at his debt? IN BANK. Dec. Term, By our law this property is assets to pay debts, and should be distributed pro rata amongst the creditors, for undoubtedly the creditors are entitled to it. The creditors have no judgment, and cannot file a bill; no one but the creditor will administer, and is he remediless?

Originally, in England, it is probable that the administrator succeeded to the rights and liabilities of his intestate, and might not have been able to maintain any suit his intestate could not have sustained. Le Baron, if living, could not set aside those fraudulent conveyances, or recover back the property from Benjamin, if it had been delivered; but if it had not been delivered, Benjamin could not have enforced the delivery of the propertyunder such a fraudulent contract. If Le Baron was alive, his creditors could recover judgment against him, and, by bill in chancery, subject any of his property, in the hands of Benjamin, to the satisfaction of their judgments. But Le Baron is dead; his creditors have no judgments; none but the principal creditor will administer, and he is forced to do it to secure his debt. In what other way can he proceed but the way he has chosen? The property has been so wasted or so converted by Benjamin, that it cannot be found; it seems to me that this is the only way that it can be reached.

In Ohio, I apprehend that the administrator represents both the intestate and his creditors, and that he can do, himself, every thing in relation to the assets of the estate that creditors could do by bill in chancery, or otherwise. He surely ought to be able to administer every thing that can, in any sense of the word, be considered as assets, for the payment of the debts. He is the proper person to make the distribution. If this was not the case, one creditor might realize the whole of his debt, and the others be entirely cut off.

Can there be any doubt but that this property, or its value, if recovered, is assets to pay the debts, and that the administrator is the proper person to distribute the same in the payment of the debts of the estate?

IN BANK.

Dec. Term, 1846.

Benjamin v. Le Baron's Administrator.

The Legislature has expressly made lands, fraudulently conveyed by the intestate, assets to pay the debts in the hands of the administrator, and has pointed out the manner of obtaining the possession of such lands.

In a similar case in England, and in most of the States, the creditor could have sued Benjamin as executor de son tort. Campbell v. Toucy, Ex. of Booth, 7 Cowen Rep. 64.

But, as before observed, the creditor who could proceed in that manner would get the whole of the assets. Now, the spirit of every administration law we have been governed by, has had equality of the distribution of the effects for its basis; that is one reason why our laws and courts have been so uniformly opposed to any law which will admit of executors de

son tort.

The case of Babcock v. Booth, was decided in New York, in 1842; 2 Hill's Rep. 181. In pronouncing the opinion of the Court, the Judge says: "Where a fraudulent grantee takes ⚫ possession of the goods in the lifetime of the vendor, who 'afterwards dies, leaving debts unpaid, it seems that the goods will, as to creditors, be decreed to be assets in the personal representative of the deceased; and if so, the executor or 'administrator must, of course, have an action against the 'fraudulent vendee to recover the property." Rob. on Frauds, and Cro. Eliz. 810, are cited.

"The only question, then, to be considered, is, whether the 'personal representative of a fraudulent grantor, who remained in the possession of the property, can, for the benefit of 'creditors, set up the fraud, and thus avoid the sale. I think he can, and that the Court below erred in holding the contrary doctrine. All the books agree that the sale, though not 'void as to the parties to it, is utterly void as to creditors, and 'the only difficulty is as to the mode in which they shall come ' at their rights."

"In Bethel v. Stanhope, Cro. Eliz. 810, the fraudulent donor 'died in the possession of the goods, and it was said, that when the donor afterwards took them, it is a trespass against

Benjamin v. Le Baron's Administrator.

'the administrator, for which he hath his remedy, and they are IN BANK. 'always assets in his hands.".

Lately, in New York, the Legislature passed an act, declaring that no one shall be charged as executor de son tort in that State.

In Doe v. Barkenstose, 12 Wend. 145, the Court says: "Executors and administrators have a new character, and stand in a different relation, from what they formerly did, to the 'creditors of the deceased person, with whose estates they are 'intrusted. They are not now the mere representatives of 'their testator or intestate; they are constituted trustees, and the property in their hands is a fund to be disposed of in the. 'best manner for the benefit of the creditors."

In Shield v. Anderson, 3 Leigh Rep. 729, the same doctrine is held by the Court of Appeals of Virginia. So it is held in Massachusetts, if the estate is insolvent. 4 Mass. Rep. 356.

I do not doubt but that executors and administrators have always, in Ohio, represented both the deceased and the creditors, and were always the trustee of the creditors, and never the mere representative.

It will be claimed, however, by the counsel for the plaintiff in error, that the administrator is a mere representative of the deceased, a substitute for him, and that he could have been sued, and can yet be sued as executor de son tort, and therefore there can be no necessity for such an action as this. It will be insisted that the decisions of this Court in relation to this subject are not law, and ought to be disregarded.

However ingenious an argument to prove that executors de son tort ought to be tolerated, under our peculiar system, may be, it fails to convince me that such is or ought to be the law of Ohio; and that, if no precedent for such a case can be found, it is high time for this Court to make one on this occasion.

The Court is not put to the necessity of deciding the question that would arise, if Benjamin had taken possession of the property in the lifetime of Le Baron, because the testimony

Dec. Term, 1846.