Stephenson v. Donahue.
1. A voluntary conveyance to a trustee for the benefit of the grantor's wife and children is not fraudulent against a creditor whose claim • was at the time amply secured by mortgage.
2. The fact that the mortgage security is subsequently lost by the credit- or’s laches, does not make such a conveyance fraudulent.
Error to the District Court of Hamilton County.
In 1837, Eden B. Reeder gave his note for $1,100 to Charles Fox, amply secured by mortgage upon real estate. *185Afterwards Fox assigned the note and mortgage to William Stephenson, who in 1842 obtained, a decree of foreclosure and an order of sale. This order was issued in-1842, but was returned with the endorsement “stayed by order of plaintiff.” No other order of sale was issued until 1869. In the meantime the mortgagor had until 1848 remained in open and notorious possession of the mortgaged premises. In 1848 Reeder sold the mortgaged property at public auction to innocent purchasers who were without actual notice of the pending suit. Such purchasers, and those holding under them, had been in actual possession more than twenty years, when the order of sale was issued in 1869. The mortgagee was restrained by the courts from making a sale of the premises under the- order and lost his security.
July 20, 1844, Griffin Taylor gave to Eden B. Reeder a perpetual lease upon a parcel of land, with an annual rental of |200. Four days later this lease was transferred by Reeder to a trustee for the benefit of his wife and daughters. The lease was recorded in 1850, but the transfer was not recorded until July 27, 1852. In 1850, Reeder gave a mortgage to secure 110,000, upon this leasehold estate.
In 1872, Stephenson having lost his mortgage security obtained a personal judgment against Reeder for the amount of his note with interest. Upon this an execution was issued and returned “No goods and chattels, lands or tenements found.” In the present action Stephenson’s executors seek to subject the leasehold estate conveyed to Reeder in 1844, and by him conveyed to a trustee for the benefit of his wife and daughters, to the payment of the judgment rendered in 1872.
Fox if Bird and Geo. B. Ohey, for plaintiff in error.
Mallon cf Coffey, J. J. Glidden and F. B. Donohue, for defendant in error.
Nash, J.
In July, 1844. and at the time Reeder made the conveyance, now sought to be set aside as fraudulent, *186Stephenson’s claim against Reeder was fully secured by mortgage. Stephenson, by his laches, extending over a period of many years, lost this security. Fox v. Reeder, 28 Ohio St., 181. There could have been no intent and no attempt upon Reeder’s part to defraud Stephenson, in reference to a claim already secured, by the conveyance in 1844, of the leasehold estate to a trustee for the benefit of Reeder’s wife and daughters. The convejmnce cannot be set aside as fraudulent as against Stephenson, no other creditor complaining.
Judgment affirmed.