State of South Carolina v. Foot

Citations

• 27 S.C. 340
• 3 S.E. 546
• 1887 S.C. LEXIS 141

Syllabus

<p>1. In action by a judgment creditor to vacate mortgages and an assignment of the judgment debtor for fraud, it is not necessary that the other creditors, in whose behalf as well as his own the action is brought, should have their claims in judgment.</p> <p>2. The plaintiff might maintain this action notwithstanding his judgment was obtained only as a security for such creditors as might establish claims thereunder, if the judgment was also for a fixed amount of costs immediately enforcible.</p> <p>3. In such an action it is not necessary that the complaint should state that the plaintilf’s execution had been returned nulla bona.</p> <p>4. Where an assignment for the benefit of creditors, executed after judgment obtained against the assigning debtor, disposed of property not covered by the lien of this judgment, or at least difficult to he reached by its execution, the judgment creditor might maintain action to vacate the assignment.</p> <p>5. In action by a judgment creditor to vacate a mortgage of his debtor, it cannot be held on demurrer that the complaint, in omitting to allege that the mortgage debt would exhaust the mortgaged land, fails to state facts sufficient to constitute a cause of action, where the complaint does allege that it is impossible to collect the judgment unless the mortgage is set aside.</p> <p>6. A judgment creditor has a cause of action against the assignee of his debtor where the property of the debtor is put by the assignment beyond the reach of the plaintiff's judgment, and is to be primarily applied to fraudulent mortgages.</p> <p>7 A judgment creditor may bring his single action to vacate mortgages fraudulently executed by his debtor at one time, and an assignment for the benefit of creditors fraudulently and eollusively executed by this same debtor at another time. This is but one cause of action— the attempted fraudulent disposition by all the defendants of the debtor’s property to defeat the plaintiff’s claim.</p>