The opinion of the Court was drawn up by
The case is presented on a demurrer to the bill; and, according to the statements therein, a gross fraud, upon'the rights of creditors existing at the time of the transactions alleged, was attempted. Whether the relief sought by the complainant can be granted or not; as the parties and the bill are now presented, is the question.
As between Charles Mason and his wife, Harriet T. Mason, the latter held the estate, conveyed by Abigail M. Tolman, to her, in trust, resulting from the payment of the consideration alleged to have been made entirely by the husband, (2 Story’s Equity, § 1201,) and was to be taken as his property, in payment of his debts, contracted before the purchase. R. S., c. 61, § 1.
The provisions of this statute are an affirmance of well established doctrines in equity, in cases of fraudulent conveyances, so far as these provisions have relation to creditors, who were so at the time of the fraudulent acts complained of. 2 Story’s Eq., § 1265.
The statute referred to has prescribed no form of remedy, for cases falling within its provisions, in this respect, and we are to seek the process for obtaining the object, intended to be secured, that is ordinarily adopted in analogous cases. When a creditor cannot effectually reach the real estate which is equitably that of the debtor, by reason of a fraud committed by the debtor, and others, who may hold the legal title, courts of equity will aid the creditor, to enable him to obtain payment, when the legal remedies have proved inadequate. And, on the exhibition of. such facts as show these remedies to have been exhausted, equity jurisdiction attaches. When real estate has been conveyed, and, under the laws of this State, the conveyance operates as a fraud upon the rights of *181a creditor, established principles allow him to make a levy upon it, if he would have the assistance of a court of equity to enable him to obtain satisfaction from the estate itself, which has been thus fraudulently conveyed. Having done all in his power, in order to obtain a title, in the mode provided, a court of equity will prevent his being injured by an outstanding fraudulent title. Webster v. Clark, 25 Maine, 313.
The authorities cited for the defendants, are conclusive upon the point, that the extent of an execution upon real estate, to which the debtor therein had no legal title, but the legal title in the same is held as a resulting trust for his benefit, is not of itself sufficient to vest the legal estate in the creditor, against the trustee. But these authorities go no further. And the institution of this suit is to obtain a decree for a conveyance of the legal title to the complainant, which is held in fraud against the creditor in the execution, because, without such decree or relief in equity, he has no remedy.
The allegations in the bill, are, that the land upon which the levy was made, and other land adjoining, was purchased by Charles Mason, the plaintiff debtor, with his own means, of Abigail M. Tolman, which, by his procurement was conveyed to his wife by Abigail M. Tolman. This land, therefore, is in the condition stated in the statute referred to, and may be taken for the husband’s debts, contracted before the conveyance.
It is further alleged in the bill, that the same real estate was fraudulently conveyed by Harriot T. Mason and her husband, Charles Mason, on Dec. 7, 1855, to Mary M. Tolman, the mother of Harriet T. Mason, without consideration, and with the fraudulent intent of depriving the complainant of the means of obtaining payment of the debt alleged to be against the said Charles Mason, and that the grantee in the deed aided in that fraud. This conveyance was after the complainant’s levy, and it could have no operation to place the creditor in a position less favorable than he occupied before. Being authorized to take the land in payment of his debts, he certainly cannot be deprived of that right by a *182conveyance, without consideration, designed to defraud him of his remedy.
It is objected to the maintenance of the bill, that the administrator of the_ estate of Charles Mason should have been a party thereto, assuming, that if he were living, he must have been a party. As between the grantors and the grantee in the deed from Mason and wife to Mary M. Tolman, the whole title passed. If the complaint should prevail on the statements in the bill, and he should have a decree, that Mary M. Tolman should convey to him, the estate of Mason could have no conceivable interest.
Demurrer overruled.
Rice, Appleton, Goodenow, Davis and Kent, JJ., concurred.