Ewing vs. Cantrell.
CHANCERY, Ancillary jurisdiction — ¿fraudulent conveyance. The jurisdiction of chancery, under the statute against fraudulent conveyances — 1801, c25, §2 —being ancilliary — namely—to remove impediments to executions at law, will be exercised only, where the impediment to be removed, affects things which might be.reached by execution, but for the impediment: never, in any case, where the property sought to be made liable, in equity, could not be reached at law, even though no obstruction existed.
Debtor AND, Creditor. Statute of frauds avoids gifts of lands, fyc. but noi. money, stock, choses in action, <§*c. The statute of frauds avoids every gift, &c„ of lands, tenements, hereditaments, goods or chattels, or of any rent,, common or profit out of the same, made of fraud, &e.; and, by construction, it embraces voluntary gifts, made by embarrassed men, though without intentional fraud, of lands, &c.; but not a gift of money, stock, choses in action, &c., so made; nor does the donee, by force of such gift and the statute become debtor to the donor’s creditor.
SAME. Chancery. Ancillary jurisdiction extended to money, stock, <^c. by act of 1832. There was no jurisdiction in chancery to subject a debtor’s money, stock,, choses in action, &c., to the satisfaction of judgments against him, whether in his own hands, or in those of his voluntary donee, till the act of 1832, c 11, which was produced by the doctrine held in the case of Erwin vs.% Oldham, 6 Yer. 185.
William Wendle, on the 22d of July, 1833, by indent ture conveyed, seven acres and sixty-five square poles land in the vicinity of ,Nashville, to George M. D. Cantrell,, for a nominal consideration paid by Cantrell, and for leva and affection, to Mrs, Juliet A. D. Cantrell, his sister, and, the mother of G. M. D. Cantrell, in trust for the separate, and exclusive use of Mrs. Cantrell during her natural life and no longer. And it was made the duty of the trustee to permit Mrs. Cantrell, during her life, to have, receive, and enjoy the use, occupation and possession of the premises, free from all claims, rights and. demands of her husband, Stephen Cantrell, who was bankrupt: and upon her death, the premises were to revert to, and be revested in the grantor, &c.., in as full and ample a manner as if the conveyance had never been made and executed,
Mrs. Cantrell had separate property, consisting of cash, and bank stock, amounting to about 2500 dollars. Her son. and trustee, during the year 1833, with her knowledge and consent, but “of his own accord,” made improvements on. the parcel of land above mentioned, consisting of a comfortable brick dwelling house, kitchen, smoke-house, offices,. *365$cc. which were designed for his mother’s use. The cost of these improvements was $4,756 97 cents. Of this sum $2,644 34 cts. was paid by means of Mrs. Cantrell’s separate property, together with $148 21 cents, advanced by Stephen Cantrell, her husband, leaving a balance of $2,112 53 cents, which was paid by the trustee out of his own funds, and was intended by him as a present to his mother.
He was then engaged in business in Nashville, as a partner in the firm of Cantrell and Allen., and he charged said sum of $2,112 53 cents to his private account on the books of the firm. That house was then insolvent, though the fact, it seems, was unknown not only to Mrs. Cantrell, but even to her son himself, who believed it was worth 15000 or 25000 dollars over and above all demands against it. On the 10th of July, 1834, however, Cantrell and Allen made a deed of trust to Edwin H. Ewing, in favor of their creditors, who were divided into four classes, which were to be paid successively out of the fund provided in the deed, and that fund was described in part as consisting of “all their book accounts, a list of which will be made out and handed to said trustee, the books being now here assigned and delivered over to said trustee; all constable and lawyer’s receipts,— and all other choses in action of what description soever they may be,” &c. This deed was duly registered in Davidson county, on the 19th of July, 1834.
At September Term, 1834, of the circuit court of the United States for the district of West Tennessee, Warner & Bayard, of Philadelphia, obtained a judgment by confession against Cantrell and Allen for 1250 dollars debt, besides costs, upon which they sued out an execution, which was returned on the 19th of September, 1834, “no property to be found.” And on the same day they filed their bill on the equity side of the circuit court of Davidson, against William Wendle, George M. D. Cantrell, Stephen Cantrell and Juliet A. D. Cantrell, to subject the aforesaid parcel of land and the improvements made upon it by G. 1\1. D. Cantrell to the satisfaction of their judgment, — charging that the whole of said improvements had been made with the funds of Cantrell and Allen, and that G. M. D. Cantrell had purchased *366the land from Wendle, and that it had not been given by him to his sister, Mrs. Cantrell.
Chapron and Nidlett also recovered a judgment against Cantrell and Allen at the same term of the federal court, and also filed a bill, in that court for the same purpose as that of Warner and Bayard.
In this state of things, E. H. Ewing, the trustee in the above recited deed, on the 10th of December, 1834, filed his bill in the chancery court at Franklin, in behalf of the .creditors of Cantrell and Allen provided for in that deed, against G. M. D. Cantrell, William Allen, William Wendle, .Juliet A. D. Cantrell, Stephen Cantrell, Warner & Bayard, ,and Chapron & Nidlett, which he amended at October Term, 1836. The bill and amended bill charged, that Stephen Cantrell had reared his family as a man of wealth, but at the date of the conveyance by Wendle to G. M. D. Cantrell of the land in question, was entirely bankrupt; that the firm of Cantrell and Allen being in failing circumstances, the device was conceived and set on foot by the Cantrells to vest such an amount of money in real estate and buildings as would enable them to live according to their past habits of life, and yet so to secure the property as to place it entirely beyond the reach of the creditors as well of Stephen Cantrell as of his son, G. M. D. Cantrell; that in execution of this purpose, they procured Wendle to make the conveyance above mentioned; and G. ¡VI. D. Cantrell invested his funds in the improvements upon it, with a secret understanding that Mrs. Cantrell would reimburse him out of her separate property, &c. &c. The bill prayed for a discovery; that the land and improvements in question might be made liable to the debts mentioned in the deed of trust to the complainant; in favor of whom, it further prayed that a priority of satisfaction might be declared over Warner & Bayard and Chápron & Nidlett.
These several bills were answered; and the device and combination supposed in them were" denied by the Cantrells; and they averred as also did Wendle, that the land had been conveyed to Mrs. Cantrell for the purposes and upon the consideration expressed in the deed itself; that the improvements had been made by G. M. D. Cantrell, with the know*367ledge and consent, indeed, of his mother, but in total ignorance, both on his and her part, of the embarrassed and bankrupt circumstances of his house, and with no design of defrauding its creditors; that these improvements were paid for as is above stated, partly with her separate property and partly with the funds of G. M. D. Cantrell.
January 7.
The cause was brought to hearing on the 30th of April, 1838, before his Honor, Chancellor BRamlitt, upon the pleadings and proof, which latter simply established the debts claimed by the several parties interested, against Cantrell and Allen. His Honor was of opinion that the investment of the funds of Cantrell and Allen in the improvements above specified was without consideration, voluntary and void as to their creditors, and that the trustee, E. H. Ewing, was entitled to a priority over Warner & Bayard and Cbapron & Nidlett. Whereupon he ordered the clerk and master to take an account of all the expenditures upon said lot, of the funds and effects of Cantrell and Allen, or either of them, charging interest thereon to the time of filing his report; that he also ascertain the unimproved value of the reversionary interest of Wendle in the lot, and report instanter.
The clerk and master reported that the' sums advanced by Cantrell and Allen for the improvements, and interest to the first of May, 1838, amounted to $2,661 78 cents; and that the reversionary interest of Wendle was worth 200 dollars, estimating the land as unimproved. An exception to the account was filed by Wendle as to the value of his interest. But his Honor confirmed the report, and decreed that unless $2,661 78 cents were paid on behalf of Mrs. Cantrell, into the office of the clerk and master, in three months, he should sell the land and improvements at auction, for cash, and pay the complainant the $2,661 78 cents, and interest thereon, to the date of the sale; and reserve the residue for Mrs. Cantrell and Wendle till further order.
The defendants all joint??! in an appeal in error.
Cook and Ewing, for the trust creditors,
insisted that it was scarcely credible that, during the progress of these improvements, none of the parties should have suspected the embarrassments of a house, which so soon afterwards proved *368to be utterly insolvent. But supposing the investment of G¿ M. D. Cantrell’s funds in his mother’s lands to have beeri made without her request, and in the absence of a contract to that effect, and in ignorance of his pecuniary condition, still the actual investment had been made, and the effect of it was the same upon his creditors, be the motives of the parties to it what they might. His money and effects, to which, as it has happened, his creditors have an undoubted equitable title, have been clearly traced, and now exist in the shape of houses, &c. upon his mother’s land. Can that equitable title be defeated by the simple change of form which has been impressed, no odds with what motives, upon this money and these effects? If it can, it must be because some other person has acquired an equity in them superior to that of the creditors. But so far from Mrs. Cantrell or Wendle having an equity to claim this money, they have not even a formal legal title. For Mrs. Cantrell is clearly a debtor to her son for the amount invested by him in the improvements, since she acknowledges, that she knew he was making the investment. This being the fact, the action for money had and received, paid, laid out and "expended will lie at his suit against her. Consequently, the demand is a chose inaction of G. M. D. Cantrell, and comes within the very words of the deed to Ewing. How then are the creditors to be defeated? No possible reason can be assigned, but this, that, under a set ofcircumstanc.es, which may indeed be supposed, but which this court will not run after, it may not be possible to make such dispositions as would comport with the nicest equity, to meet the just claims of all concerned.
Wendle has an interest in the land, depending on the life of his sister; she also has an interest in the land itself, and in the improvements, to the extent of her separate estate; and G. M. D. Cantrell, or his assignee, the present complainant, has an interest to the amount of his money or effects invested in the improvements'. This latter interest cannot he made effectual but by a sale, unless Mrs. Cantrell or' Wendle will refund the money. Where is the injustice or inequity of requiring them to do this? Will they not enjoy it, and have the exclusive advantage of it? And if they refuse¿ *369Or are even unable to raise the money, what possible harm could they sustain, by bringing the property and improvements to sale? They would, in that event, be paid out of the proceeds in proportion to their respective interests. Wen-dle would be paid the value of his reversion; Mrs. Cantrell would be placed in statu quo; that is, she would be paid the value of her life interest in the land itself, and be reimbursed her separate estate; and the complainants come in for the residue. It may be said-, it is inequitable to force a sale. Be it so. But is that at all comparable to the injustice of denying the creditors relief? Human affairs are but a system of compensations and balances at best. It is the system of providence; and we ought neither to pretend to greater wisdom in our feeble dispensations of justice, nor yet tremble to follow its' lead, where its method is so clearly indicated.
Washington & F. B. Fogg, for the judgment creditors,
argued that Ewing, the trustee, and the judgment creditors tmite upon the same grounds, in resisting the defence set up by Mrs. Cantrell; and in maintaining, that her property is liable to the creditors of Cantrell & Allen, so far as its value was Increased by means of the appropriation of their funds to that object.
But, as to the application of the proceeds of said property, When subjected, the trustee, and the judgment creditors are at variance with each other. The trustee contends, that said proceeds are embraced by the assignment which he holds. The creditors controvert that position, and insist, that said proceeds were not in the contemplation of the assignors, when they executed their assignment, and that, in fact, they did not pass thereby.
1. The firm of Cantrell & Allen, being very much indebted and embarrassed at the time when Cantrell made a voluntary investment of his funds for the benefit of his mother, such investment will be considered fraudulent and void, ás againsf their creditors; Reads v. Livingston, 3 Johns. Ch. Rep. 492, 505; Rattersbee v. Farrington, 1 Swanston, if3; Beaumont v. Thorpe, 1 Ves. Sen. 27.
2. The situation of the fund advanced by Cantrell, the debtor, as a donation to his- mother, does not permit its being *370reached in equity, by his trust creditors; 4 Johns. Ch. Rep. 452, Bayard v. Hoffman; Tayler v. Jones., 2 Atkyns, 600; '4 Ves. 735. Mrs. Cantrell will not be,injured by the complainants, as that which was her own, or the full value of it, is not interfered with. She knew of the expenditures made by her son, and did not forbid them.
3. The judgment creditors, by the exhibition of their bill, acquired a lien upon this fund, in preference to all creditors of Cantrell & Allen; if the fund was not included in the assignment to the trustee; Spader v. Davis. 5 Johns. Ch. Rep. 280; JWcDermuttv. Strong, 4 Johns. Ch. Rep, 687. The bill of the trustee is founded exclusively upon the deed of assignment. The objebt of the bill is, to carry that assignment into effect; and not to assert the rights, generally, of the creditors of Cantrell & Allen, as against the fund in question, upon the ground of its having been fraudulently diverted from their use. The question, therefore, under the bill of the trustee, and as between him and judgment creditors, is, as to whether the deed of assignment embraces the fund in controversy.
The deed of assignment does not embrace the fund in controversy. Nothing could pass by the deed of assignment, but what belonged to the assignors. The donation by Cantrell to his mother, fully divested him of all right to the subject matter of that donation, or to its proceeds. If the gift was not in fraud of his creditors, it was good as against him. If it was in fraud of his creditors, it was equally good between him and his mother. So that, in either case, when he executed the deed of assignment, he had no right to, or control over, the fund in question.-
If Cantrell was guilty of a fraud, in making the donation, the right to the fund which was the subject matter of the donation, -resulted to his creditors, in consequence of that fraudulent act; -but, the fund did not revert to Cantrell himself.
It would, therefore, be absurd to say; that by the execution of the deed of assignment, Cantrell assigned, not that which belonged to himself, but that he assigned to his creditors what already belonged to them.
To sustain the claim of the trustee to this fund, under his *371bill, the court would have to say, in effect, that when the assignment was made, the assignor admitted, in making the assignment, that when he made the donation to his mother, he was guilty of an intentional fraud upon his creditors. If it was only a legal fraud, his creditors derived the same rights under it, by operation of law, that they did from the deed of assignment; and, therefore, there was no necessity for the assignment. The same would be the case, if it was actual or intentional fraud.
But, by putting the rights of the creditors under the operation of the deed of assignment, a positive injury is done them, to this extent. That, without the deed of assignment, they would all have an equal right to the fund, to be effectuated by each, according to the superior diligence which he might af-terwards use; or by the whole, equally, by a joint proceeding to be instituted by them, for that purpose. But, if the fund could be passed by the deed of assignment, then, it would be in the power of the assignor, to prefer one creditor to another, as he actually has done in this instance, and put some in a better, and some in a worse situation, than they were placed by the law previously.
There is no evidence in this case, to warrant the assumption, that Cantrell was guilty of an intentional fraud, in making the donation to his mother; and he expressly and vehemently denies that he was. The act, therefore, that was done by him, ought to be left to its operation at law; and he ought not to be made to say, when he does not say it, that he was guilty of moral turpitude; and, therefore, he undertakes to convey a right which could not have any existence, upon any other hypothesis.
4. The term chose in action, does not, by any rational construction, as used in this deed of assignment, embrace the fund in controversy. The right to subject the fund, is an equitable chose in action, belonging to the creditor, and cast upon him by operation of law, in consequence of the Gem-mission of the fraud; but it is no chose in action belonging to Cantrell; because there is no action that he could maintain, either in law or equity, by which he could enforce it...
James Campbell for the defendant,
said it is'difficult to-*372see how this case varies in principle from those of every day occurrence, where a tenant, or other person in possession of land, puts improvements upon it, by no contract with the landlord, or not at the request of the owner. A tenant or a trespasser improves the property of the owner, but not by virtue of any contract with the owner, — he must lose his improvements. He cannot make them a liiep. upon the land. Townsend vs. Shipp’s heirs, Cook’s Rep,. 294; Bristoe vs. Evans & Mo Campbell, 2 Tennessee R. 341 and 352; Weatherhead and Douglas vs. Bledsoe’s heirs, 2 Tenn. Reports, 392, 393,
How much stronger does the principle apply when lands,, the separate property of a feme covert are to be affected? This court has decided ip the case of Morgan vs. Elan),, 4 Yerg. 375, that the power of a married woman over her separate, estate does not extend beyond the meaning of the deed creat-, ing the estate; and she cannot, even with her own consent,, charge her separate property, or create a lien upon it, even by contract, unless authorised by the deed to do so; yet it is contended by complainant’s counsel, that although she cannot do so by contract, yet another p.erson may do so, by no con-, tract at all.
Complainant’s case comes within the ancillary jurisdiction of this court. They have, obtained their judgment at law, have run their execution, and it has been returned unsatisfied, or no property found. They now come here to ask a court of equity for aid in executing their judgment at law; to remove impediments that stand in the way of executing their judgment. They come here, as creditors, to set aside a fraudulent conveyance under the statute of the 13 Elizabeth, or act of 1801, which declares all conveyances made to defraud creditors, void. This statute confers no new jurisdiction upon this court, except to cancel sales and conveyances made to defraud creditors, and to subject the, property conveyed to the plaimiff’s execution.
If, then, the thing transferred.be such that it is not liable to the plaintiff’s execution, before the transfer, this court has no power to interpose and set the transfer aside, because your act would be perfectly nugatory. Suppose you do declare *373the transfer void, what will it avail if you cannot subjeet the thing afterwards to the payment of the plaintiff’s demand?
January 11.
Geo. M. D. Cantrell, an insolvent debtor, gives money to his mother. You may say that this gift was void, but then you cannot get hold of the money to subject it to the payment of the plaintiff’s execution. If it had been property, and that property was still in existence, then by declaring the gift void, you render the property liable to the execution of the plaintiff, But, suppose the property is consumed or sold by the donee, and the money spent, and you cannot get hold of it, will the plaintiff’s counsel pretend you can make the donee a debtor to the donor, and give judgment against him for the value of the property, and then subject that judgment to the payment of the plaintiff’s execution? If you can, then a father who educates his son and gives him money to pay his expenses, makes his son a debtor to the amount of the money furnished, and the son can be made to pay the debts of the father to that extent. But no person pretends that this can be done. We all know, however, and admit, that if a father gives property to his son, and that property remain in specie, a court of chancery could declare the conveyance void, and subject the property to the payment of the judgment.
These principles clearly demonstrate that the complainant’s bill cannot be sustained. Geo. M. D. Cantrell gave money to his mother. She took the money and made improvements on her land. No actual fraud was intended. The money has been spent. The mechanics who made the improvements have got it.’ The money cannot be reached by the-creditors of Geo. M. D. Cantrell. Neither can you make-Mrs. Cantrell a debtor to her son, for it was under no contract that the money was advanced, by which, in any event,, she undertook to refund it.
Reese, J.
delivered the opinion of the court.
Stephen Cantrell, being insolvent, Wendle, the brother of Mrs. Cantrel, conveyed to G~ M. D. Cantrell, a tract of land near Nashville, containing about seven acres, in trust for the separate use and-benefit of Mrs. Cantrell during her life, *374with reversion after the death of Mrs. Cantrell to the grantor and- his heirs.
The trustee, G. M, D. Cantrell, was at the time of the conveyance, a member of a mercantile house, known by the style of Cantrell & Allen; and Mrs. Cantrell, the beneficiary in the deed of conve} anee, had funds, her separate property, in the hands of Cantrell and Allen, amounting to about the sum of $2500. With the funds, she desired a dwelling house and other improvements to be constructed, for her, upon the land conveyed to her by Wendle, her brother.
Her trustee and son, G. M. D. Cantrell, contracted for and superintended the construction of the dwelling house and other impiovemenls. He projected the improvements upon a scale which required for their completion, the expenditure of about the sum of $2500, in addition to the separate funds of the mother. This amount was furnished by him from, the funds of Cantrell & Allen. It appears from his answer and that of Mrs. Cantrell, that the latter did not wish, or expect, or request, that he should expend any thing out of his own funds, or those of the firm; but that she expected and was willing, that the improvements- should have been made by the exclusive application of her own separate means, and that neither he nor she knew or believed, during the time of the expenditure, that the house of Cantrell & Allen was in failing circumstances and verging towards bankruptcy. This, however, was the fact. .
The question is, whether, under these circumstances, this voluntary and unsolicited investment, by the son, in improvements upon the separate real estate of the mother, can be reached, in her hands, by the creditors of Cantrell & Allen.
There is no pretence, that there was, in the transaction, any trust,, secret or otherwise, between the mother and the son, — nor thatit was intended to hinder and delay the creditors of Cantrell & Allen in the collection of their debts. It has been agreed that the answers shall be considered as depositions, — and they leave no ground upon which to impute intentional fraud to the parties. It is not pretended, that the transaction creates the relation of creditor and debtor between the *375s-on and mother. Upon a principle, which has become an axiom, no one can be made a debtor in that way.
But it is strenuously urged that Mrs. Cantrell, or her separate real estate, is liable to the creditors of Cantrell & Allen for the money so invested in improvements, — not because of any supposed lien created thereon, by the judgment and execution; but, because the advancement or gift by the son, he being an embarrassed man, is contrary to the principle and spirit of the statutes made for the prevention of frauds. Those statutes, indeed, make “void every gift, grant or conveyance of lands, tenements, hereditaments, goods or chattels, or of any rent, common or profit out of the same, whether by writing or otherwise, and every bond, suit, judgment or execution, made of fraud, malice, covin, or collusion to hinder, deceive, delay, &c.”
The principle of these statutes is, that the lands, goods, or chattels, so fraudulently given, or transfered, shall be liable, in the hands of the fraudulent donee or transferee, to the judgment and execution of the creditor of the fraudulent grantor. Thus, if an embarrassed debtor convey a tract of land to his son, not upon any trust, secret or otherwise, but for bis advancement, and that it may be absolutely his, — a creditor of the grantor can, by operation of those statutes, render the land liable to the satisfaction of his debt. But if, before this be done, the land be fairly and honestly conveyed to another, for an adequate consideration, so that it cannot be reached by the creditor of the first grantor, will it be contended, that the son shall be held liable, as a trustee, to such creditor, for the proceeds of the land?
If money be given by an embarrassed man, to his relation or his friend, not upon any secret trust, to be implied from the circumstances, or otherwise — but absolutely, and for the benefit of the donee, — it would be difficult to say, that the donee, by the transaction, and by operation of the statute, becomes debtor to the creditor of the donor. Lord- Northington, indeed, in the case of Partridge v. Gopp, Ambler, 596, argues in behalf of such a consequence, although he does not so decide. The case was one in which an executor had given away the trust fund to his children, and that circumstance, if they had not *376been legatees, under the will, (upon which ground they Were held not to be liable,) might, perhaps, have justified the court in affecting them with a trust. But the intimation of Lord Northington, in that case, is not consistent with the case of Dundas v Dutens, 1 Ves. Jr. 196; Calander v. Estwick, 1 Ans. 381, and McCarthy v. Goold, 1 Ball & Beat. 387; see, also, 9 Ves. 189; 10 Ves. 368, and the case of Erwin v. Oldham, in this court, 6 Yer. 185.
The principle of these cases is, that the jurisdiction of courts of chancery, in cases arising under the statute, is ancillary to that of the common law courts, and for the purpose of giving effect to the lien of the creditors, judgment and fieri facias.
In consequence of the decision of this court, justrefered to, the act of 1832, c. 11, was passed to subject stock, choses in action, &c., to the satisfaction of the claims of creditors. If the positions, by which the decree of the Chancellor, made in the present case, is attempted to be sustained be correct, that case was improperly decided, and the act of assembly produced by the decision, was unnecessary. For they both proceeded upon the ground, that where the execution created no lien, the ancillary jurisdiction of chancery could not be successfully invoked.
It would follow, from the view which we have taken, that if Cantrell the son, had, without any trust, secret or otherwise, proved or to be implied, given to his mother the money in question, to be hers absolutely, she could not be treated, as personally the debtor of the son’s creditors. If this be so, when the son, without any secret trust or intentional fraud, mingles his funds with hers, and invests them in improvements upon her real estate, it follows, a fortiori, we think, that the creditors cannot treat her, or her land, as being liable to them. Upon what principle shall this be done? Their judgment ere. ates no lien upon her separate real estate, nor their fi. fa., upon the funds invested; nor is she debtor to her son.
It is said, however, that if Mrs. Cantrell, or her separate property cannot be rendered liable for the amount of the funds *377of her son, which have been invested, it will follow, that an embarrassed man, with large money resources might build a valuable factory upon a piece of land, the property of a friend, of inconsiderable value, and bid defiance to his creditors; or, that a fraudulent father might incorporate a jewel, worth many thousand dollars, with the watch of his daughter, and elude the payment of his debts.
The cases put are of a character to make the friend and daughter participators in actual fraud. The very circumstances would incontestably prove the existence of a trust, — and we imagine they would be treated accordingly. But what would be the practical operation of the principle contended for in a variety of cases? What its operation, in a case very common in this country? A father, possessed of a large real estate, settles upon it several of his sons, intending, perhaps, if they properly conduct themselves, that it shall be theirs. They build handsome houses and make valuable improvements, and become insolvent, — what shall the creditors sell to satisfy their debts? The houses only, or land also? And if land, how much, and how shall it be laid off? And for what shall the father, the owner of the land, be held liable in the account between him and the creditors of the sons? For ameliorations only, or for the actual amount of investments and the costs of the improvements?
The same difficulty would arise between the creditors of a dowress and the heir; between those of the lessee and the landlord. In the case before us, what would the creditors sell? The house, or the house and the land also? Why the land? because it is but seven acres! Ought it not, on the same grounds, to be sold if it consisted of seven hundred acres? And how should the reversioner, Wendle, be treated? Shall his interest, too, be disposed of?
Whether, therefore, we consider this case, in one aspect or . the other; as it regards the rights of the complainant and the jurisdiction of the court, or the impossibility of giving any relief which would not operate with gross injustice upon the title and property of Mrs. Cantrell; we are alike satisfied that the decree should be reversed and the bill be dismissed.
*378Note. The case of Erwin v. Oldham, was argued in March, 1832, and continued under advisement, and for re-argument, till March, 1834, when the chan-, cellor’s decree was affirmed. It is reported as of March Term, 1834, when the opinion was delivered; but the decision of the Chancery Court, and the opinion intimated by the Supreme Court, on the argument, produced the act of 1832, which was passed on the 18th of October. See Minutes of the Court, March» 1832, p. 246, and March, 1834, p. 96.
In the case of Donovan v. Finn, 1 Hopkins 59» the chancellor said, “The cases, of authority, in which relief has been given to judgment creditors, were, in themselves, cases of equitable jurisdiction, involving fraud or trust, or seeking to subject to the satisfaction of the judgment, property in itself, liable to execution, by removing a conveyance, which operated as a fraudulent impediment to the execution.” This doctrine, it is probable, produced the New-York statute of 1828, R. S. 173, 174, §38, 39, from which our aot of 1832 is almost a literal copy. See McFlwain v. Willis, 9 Wendell, 548.