11 Conn. 369; Weightman v. Hatch, 17 Ill. 281; Vasser v. Henderson, 40 Miss. 519.

There is much conflict of authority as to how far the creditor must first proceed at law. It has been held in some cases that if an execution has not been returned unsatisfied, execution must be issued and the action brought in aid of an execution then outstanding. Such seems to be the latest view of the courts of New York, after much vacillation and conflict of decision. Adsit v. Butler, 87 N. Y. 585. But the prevailing and, as we think, on principle, the better rule is that the creditor need only proceed at law far enough to acquire a lien upon the property sought to be reached before filing his bill to set aside a fraudulent conveyance. The extent to which he must proceed to do this will depend on the nature of the property. If it be personal, there must be a levy; for until this is made he has no lien. If it be real estate, it is enough to obtain judgment, and docket it in the county where the lands are situated. 1 Am. Lead. Cas. 54, 55; 2 Barb. Ch. Pr. 160; Bump on Fraudulent Conveyances, 523; Weightman v. Hatch, supra; Newman v. Willetts, 52 Ill. 98; Vasser v. Henderson, supra; Dodge v. Griswold, 8 N. H. 425; Tappan v. Evans, 11 N. H. 311; Cornell v. Radway, 22 Wis. 260; Clarkson v. De Peyster, 3 Paige, 320; Dunham v. Cox, 10 N. J. Eq. 437466. The lien on the land, and the right to sell it in satisfaction of the debt, is the basis of the right to have the deed set aside.

This was a suit to set aside a fraudulent conveyance of real estate executed by the judgment debtor, and hence falls within the second class. It follows from what has been said that it was not necessary to issue an execution at all before commencing the present action. Hence it is wholly immaterial that it does not appear that it was directed to the county where the debtor resided. In our view the complaint is good.

Order reversed.1

FEDERAL RULES OF CIVIL PROCEDURE (1938).

RULE 18(b). Joinder of Remedies; Fraudulent Conveyances. Whenever a claim is one heretofore cognizable only after another claim has been prosecuted to a conclusion, the two claims may be joined in a single action; but the court shall grant relief in that action

1 See, accord, Wisconsin Granite Co. v. Gerrity, 144 Ill. 77 (1893); State Bank of Ceresco v. Belk, 68 Neb. 517 (1903). Contra: Schelowski v. Pawlowski, 168 Mich. 664, 667 (1912). See 3 Freeman, Executions (3d ed. 1900) § 430. As to modern statutory changes, see American Surety Co. v. Conner, 251 N. Y. 1, 4-8 (1929).

As to the lien acquired by the plaintiff on a creditor's bill, whether for equitable execution or to set aside a fraudulent conveyance, see 3 Freeman, Executions (3d ed. 1900) § 434.

only in accordance with the relative substantive rights of the parties. In particular, a plaintiff may state a claim for money and a claim to have set aside a conveyance fraudulent as to him, without first having obtained a judgment establishing the claim for money.1

MASSACHUSETTS GENERAL LAWS (Ter. ed. 1932) c. 214.

SECTION 3. The supreme judicial and superior courts shall have original and concurrent jurisdiction in equity in the following

cases: ...

(7) Suits by creditors to reach and apply, in payment of a debt, any property, right, title or interest, legal or equitable, of a debtor, within or without the commonwealth, which cannot be reached to be attached or taken on execution in an action at law, although the property sought to be reached and applied is in the possession or control of the debtor independently of any other person or cannot be reached and applied until a future time or is of uncertain value, if the value can be ascertained by sale, appraisal or by any means within the ordinary procedure of the court.2

(8) Suits to reach and apply shares or interest in corporations organized under the laws of the commonwealth or of the United States, and located or having a general office in the commonwealth, whether the plaintiff is a creditor or not, and whether the suit is founded upon a debt or not.

(9) Suits to reach and apply in payment of a debt any property, right, title or interest, real or personal, of a debtor, liable to be attached or taken on execution in an action at law against him and fraudulently conveyed by him with intent to defeat, delay or defraud his creditors, or purchased, or directly or indirectly paid for, by him, the record or other title to which is retained in the vendor or is conveyed to a third person with intent to defeat, delay or defraud the creditors of the debtor.3

...

1 See Notes to the Rules of Civil Procedure for the District Courts of the United States (1938) 19-20: "In respect to fraudulent conveyances the rule changes the former rule requiring a prior judgment against the owner (Braun v. American Laundry Mach. Co., 56 F. (2d) 197 [S. D. N. Y., 1932]) to conform to the provisions of the Uniform Fraudulent Conveyance Act, §§9 and 10. See McLaughlin, Application of the Uniform Fraudulent Conveyance Act, 46 Harv. L. Rev. 404, 444 (1933)."

2 The remainder of paragraph (7) provides for reaching the interest of a defendant in a partnership. Paragraph (7), enacted in 1851, was last amended in 1910. Paragraph (8) was enacted in 1910. Paragraph (9) was enacted in 1875 and amended in 1883.

3 Paragraph (10) provides for reaching the obligation of an insurance company under a motor vehicle liability policy or other policy insuring against liability for personal injury or wrongful death.

Mass. Gen. Laws (Ter. ed. 1932) c. 223, § 86A, enacted in 1925, provides

ORANGE HARDWARE CO. v. RYAN.

SUPREME JUDICIAL COURT, MASSACHUSETTS. 1930.

272 Massachusetts 413.

PIERCE, J. This is a bill in equity under G. L. c. 214, § 3 (7), filed January 11, 1929, in the Superior Court, to reach and apply in payment of a debt due the plaintiff the interest of the defendant Joseph A. Ryan in a judgment recovered by him against the Russia Cement Company in the Superior Court on January 7, 1929.

The bill of complaint as amended alleges that the defendant owes the plaintiff the sum of "$352.51, and interest," according to the account thereto annexed; "That on January 7, 1929, the said Joseph A. Ryan recovered judgment against the said Russia Cement Company in the Superior Court . . . in the amount of $3,750; . . . That execution has issued on said judgment but, up to the date. . . [of the filing of the bill of complaint] has not been satisfied; That the plaintiff, by a process at law, is not able to reach the interest of the said Joseph A. Ryan in said judgment, or the proceeds thereof due to the said Joseph A. Ryan from the said Russia Cement Company." The plaintiff prays; "(1) That his claim against the defendant Joseph A. Ryan be established; (2) That the defendant Joseph A. Ryan be enjoined from disposing or or [sic] otherwise assigning or transferring his said interest in the proceeds of said judgment; (3) That the said Russia Cement Company be enjoined from paying to the said Joseph A. Ryan the amount of said judgment, or any part thereof, until the plaintiff's debt has been established; (4) That the proceeds of said judgment due to the said Joseph A. Ryan may be reached and applied to the payment of the plaintiff's claim; and (5) For such further and other orders and decrees in the premises as justice and equity may require."

The defendant Joseph A. Ryan demurred to the plaintiff's bill and assigned as reasons therefor: (1) "That the bill does not contain any matter of equity wherein this court can ground any decree or give to the plaintiff any relief against this defendant"; and (2) "That the plaintiff has a plain, adequate and complete remedy at law." The demurrer was sustained by an interlocutory decree, and, the plaintiff having elected not to amend its bill of complaint further, a final decree was entered dismissing the bill. The case is before this court on the appeal of the plaintiff from both decrees. It is to be noted that the judgment which follows is upon the footing that the bill of complaint nowhere states, even by inference, that a

that after a verdict in favor of a plaintiff in an action at law the court shall have equity jurisdiction to cause property transferred to defeat the plaintiff's recovery to be reached, held and thereafter applied in payment of the judgment.

1 Square brackets and indicated omissions from original report throughout.

sheriff, or any person qualified to serve civil process, was given the execution or that Ryan had made an attachment of the real estate or of the personal property of the Russia Cement Company or that the collection of the execution by levy, seizure and sale would be interfered with or interrupted if the injunction were to issue.

Upon the facts stated in the bill of complaint the demurrer should have been overruled. G. L. c. 246, § 32, provides: "No person shall be adjudged a trustee1 in the following cases. . . Fifth, By reason of a debt due from him upon a judgment, so long as he is liable to an execution thereon." G. L. c. 235, § 17, as amended by St. 1925, c. 217, § 1, so far as material, provides: "An original execution shall not issue after the expiration of one year after the party is first entitled to take it out." Execution issued upon the judgment recovered by Ryan within the year after its recovery and was unsatisfied when the bill of complaint was filed. The defendant Russia Cement Company by the express provisions of the statute was not then chargeable in trustee process. It is plain the judgment debt due from the Russia Cement Company to Ryan when the bill of complaint was filed in its nature was such that it could not be reached to be attached or taken on an execution in an action at law, G. L. c. 246, § 32, Fifth, Sharp v. Clark, 2 Mass. 91, Howell v. Freeman, 3 Mass. 121, 124, Williams v. Boardman, 9 Allen, 570, 571, Franklin v. Ward & Goodale, 3 Mason, 136, 137, and that therefore no plain, adequate and complete remedy was open to the plaintiff to reach the judgment debt.

It is and always has been the policy of the Commonwealth that the assets of a debtor should be subject to the payment of his debts. The manifest purpose of the Legislature in the enactment of G, L. c. 214, § 3, (7), in its earlier and amendable form, was to give the broadest scope to such proceedings and thereby provide in equity in aid of the law a remedy analogous to that of creditors' suits under general equity jurisdiction. Pettibone v. Toledo, Cincinnati & St. Louis Railroad, 148 Mass. 411. Alexander v. McPeck, 189 Mass. 34, 44. H. G. Kilbourne Co. v. Standard Stamp Affixer Co. 216 Mass. 118, 120:

Under the general prayer for relief there is no serious question that the court had jurisdiction to enjoin Ryan from putting the execution against the Russia Cement Company in the hands of a sheriff for levy. Belknap v. Stone, 1 Allen, 572, citing Rice v. Stone, 1 Allen, 566. Boston & Maine Railroad v. D'Almeida, 221 Mass. 380, 382. Indeed, it is said in Maxwell v. Cochran, 136 Mass. 73 at page 74: "If the bill is maintained, the rights of the parties to the suit were fixed at the time of notice of the lis mota, and could not be changed by transfers pendente lite; and the bill would operate as an equitable attachment." Belknap v. Stone, 1 Allen, 572, 574, decides that a bill in equity will lie to reach the interest of a debtor in a judgment

1 Cf. pp. 553, 554, supra.

where execution has not issued "for the reasons stated in" Rice v. Stone, supra. The cases of Bennett v. Sweet, 171 Mass. 600, Delval v. Gagnon, 213 Mass. 203, 206, Stone, Timlow & Co. Inc. v. Stryker, 230 Mass. 67, 72, and White Sewing Machine Co. v. Morrison, 232 Mass. 387, 388, inferentially are authorities for the same proposition. As it is established that a judgment debt is a valuable property interest which is assignable and can be reached by equitable trustee process before the issuance of an execution, Belknap v. Stone, 1 Allen, 572; Rice v. Stone, supra, it would seem in the absence of an adverse decision that the remedial spirit of the statute G. L. c. 214, § 3, (7) is best subserved by holding that such a bill will lie both before and after the issuance of an execution upon a judgment debt with an injunction to stay the satisfaction of the execution pending the proceedings.

The cases of Maxwell v. Cochran, 136 Mass. 73, Emery v. Bidwell, 140 Mass. 271, 275, Tuck v. Manning, 150 Mass. 211, 216, Venable v. Rickenberg, 152 Mass. 64, Callihan v. Maguire, 218 Mass. 360, 362, and William J. McCarthy Co. v. Rendle, 222 Mass. 405, 406, are distinguishable in their facts and particularly by the special statutes which are considered and are the foundation upon which the several decisions rest.

In the opinion of a majority of the court, the order must be, decrees reversed, case to stand for hearing on the merits.

Ordered accordingly.1

1 Compare H. E. Shaw Co. v. Karcasinas, 278 Mass. 397 (1932), where the court said (p. 400): "The inability to reach property to which the statute refers means legal inability resulting from the fact that the property is of a nature not attachable or subject to be taken on execution. It does not include within its scope attachable property which cannot be found or which because of its situation cannot be attached."

As to whether the claim of a judgment debtor against a third person in tort may be reached under the statute, see Bethlehem Fabricators v. H. D. Watts & Co., 286 Mass. 556, 565-568 (1934).