Page:Federal Reporter, 1st Series, Volume 3.djvu/146

 IN BB EBTSS. 189 �land gîven before the judginent by the judgment debtor with- out consideration and to defraud creditors." �And the subsequent cases of Ferris v. Irving, 28 Cal. 645- 6i6, and Stewart v. Thompson, 32 Cal. 260-263, referred to by the court, and particularly the concurring opinion of Judga Sawyer in the latter case, are only to the same effect — that the conveyance is void as to the crediter Avho may attack it and divest the grantee of his right under it by a sale upon an execution against the grantor in favor of such creditor. To justify this conclusion it -was not necessary that there should be any judgment lien in the case, or even that the judgment should ever bave been docketed. The seizure and sale upon the execution was a direct and legal assertion of the credit- or's right to treat the conveyance as void, and the conveyance by the sheriff to the purchaser invested the latter with th« title to the premises; and these California cases only decide that the purchaser, as such, and as the sucoessor in right of the judgment creditor, could maintain a suit to set aside the fraudulent conveyance as a cloud upon this title without first bringing ejectment for the possession. �On the other hand, in Miller t. Sherry, 2 Wall. 287-248, which was a controversy ooncerning the title to real property between parties claiming under two judgments given against the debtor, after he had conveyed the premises in fraud of his creditors, and the subsequent proceedings in equity to subjeot the premises to the satisfaction of said judgments, the court held that the proceedings in equity on the part of the senior judgment creditor vrere insuABcient to affect the title, and de- cided in favor of the party claiming under the proceedings ou creditors' bill of the junior judgment creditor. �In delivering the opinion of the court Mr. Justice Swayne says that after the conveyance the legal title was in the grantee thereof until divested by the decree on the creditors' bill; and, as if it was toc plain for argument, assumes and states that the judgments were not a lien upon the premises. Speaking of the senior judgment he says : "It is not contended that the judgment was a lien on the premises. The legal title having passed from the judgment debtor before its rendi- ����