properly objected to by the actual defendant, the action must fail.1 § 346. III. Creditors' Actions; and Actions by or on Behalf of Creditors to set aside Fraudulent Transfers of their Debtors. It is not within the scope of this work to inquire into the nature of creditors' suits, nor to discuss the question when and under what circumstances they may be maintained. My only present concern is with respect to the proper selection of parties defendant, whenever the actions themselves may be properly brought. The general purpose of a creditor's suit proper is to reach, at the instance of a judgment creditor whose legal remedies of judgment and execution thereon have been exhausted, the assets of the judgment debtor, which, either by reason of their intrinsic nature, or by reason of their transfer alleged to have been fraudulent as against the creditor, are or have been placed beyond the reach of an execution at law, and which are therefore denominated equitable assets. Certain species of property, as, for example, things in action, although in the ownership of the debtor, cannot be seized on execution. The distinctive feature of the action, however, is to reach land, and sometimes chattels, which the debtor, having owned by a legal title, has transferred to some grantee or assignee in fraud of his creditors; or to reach such land, and sometimes personal property, the legal title to which stands, and always has stood, in other parties, while by reason of alleged facts the equitable ownership, at least so far as the creditors are concerned, is held by the debtor himself, and the property is thus, as is alleged, liable to be taken and applied to the discharge of the creditor's demands. Under what circumstances a transfer of property is fraudulent as against the creditors, or the equitable ownership is held by the debtor while the legal title is vested in another, it is not now the place to inquire. Assuming that such circumstances exist, and that when they exist an action may be maintained by the judgment creditor whose legal remedies are exhausted, to reach the property and have it applied in some manner to the payment of his demands, it may be asked, Who should be made parties defendant in such an action? The answer to this question is plain, and the 1 Winslow v. Clark, 47 N. Y. 261, 263; for fraud, the purchaser is a necessary citing Dias v. Merle, 4 Paige, 259. And defendant. Wilson v. Bell, 17 Minn. 61, in an action to set aside a foreclosure sale 64. rule has been well established, depending as it does upon the most evident principles of equity jurisprudence. The creditor's suit, properly so called, and which has been thus described in general terms, should not be confounded with actions that creditors may sometimes bring, based upon the law of trusts and the right of a cestui que trust to compel the performance of his duty by a trustee. § 347. In an action by a judgment creditor to reach the equitable assets of the debtor in his own hands, or to reach property which has been transferred to other persons, or property which is held by other persons under such a state of facts that the equitable ownership is vested in the debtor, the judgment debtor is himself an indispensable party defendant, and the suit cannot be carried to final judgment without him. In some cases, as when the property has been assigned at different times to different assignees, or is held by different legal owners, who are all made codefendants, he is the very link which unites them all together, the common centre to which they are all connected, and it is because he is a party defendant that they can all be joined in one action as codefendants. Even if the objection to his nonjoinder be not taken by the actual defendants, the court will on its own motion order him to be brought in.2 If the judgment debtor himself is dead, his administrator or executor is an indispensable defendant; and if the objection be taken for the first time in the appellate court, the cause will be remanded in order that he may be added as a defendant. When, however, the debtor conveyed his land to A. for the purpose of a second conveyance to his own wife in fraud of his creditors, which second conveyance was made, and the debtor afterwards died, it was held that his heirs were neither necessary nor proper parties to the creditor's action brought to set aside these conveyances. "The conveyance of their ancestor, though fraudulent, concludes them, and effectually cuts off all their interest in the property.' 15 8 1 Lawrence v. Bank of the Republic, 35 N. Y. 320; Shaver v. Brainard, 29 Barb. 25; Wallace v. Eaton, 5 How. Pr. 99; Logan v. Hale, 42 Cal. 645; Allison v. Weller, 6 N. Y. Sup. Ct. 291; Vanderpoel v. Van Valkenburgh, 6 N. Y. 190. was said that a decree without his presence is impossible. 3 Alexander v.Quigley, 2 Duvall (Ky.), 300; Postlewaite v. Howes, 3 Iowa, 365; Coates v. Day, 9 Mo. 315. 2 Shaver v. Brainard, 29 Barb. 25. It 875. 4 Postlewaite v. Howes, 3 Iowa, 365. § 348. If the object of the action be to reach property which has been assigned by the debtor, the assignee is a necessary party defendant, even if he be a non-resident of the State; and on the same principle, if the plaintiff seek to reach property of which the legal title is in a third person, but the equitable ownership of which is alleged to be in the debtor, such holder of the legal title must be a defendant.2 When the debtor conveyed land to a third person with the purpose that such person should at once convey the same to the debtor's wife, which second conveyance was forthwith made, it was held, in an action against the debtor and his wife to reach the land in her hands, that the first grantee was a necessary party defendant.3 A debtor fraudulently conveyed land to A., and took back a purchase-money mortgage which he assigned to B. In an action to set aside the conveyance, or to reach the mortgage, it was held that the debtor and both A. and B. were proper and necessary parties defendant.* § 349. When the action is brought for either of these objects, if the debtor has at different times assigned, in alleged fraud of his creditors, different parcels of his property to different assignees, or if different parcels of property are held by different persons in alleged fraud of the debtor's creditors, so that the equitable ownership is claimed to be vested in him, all of these assignees, or all of these holders of the legal title, may be joined with the debtor as codefendants in one action.5 The reason given for this rule permitting separate assignees or holders of the legal title to be joined, although they take by different conveyances and at different times, is, "that they all have a common interest centring in the point at issue in the cause; so that, while the title to one piece of property is in one defendant, and the title to some other distinct piece is in another defendant, yet these various titles were taken and are now held for a common purpose, and to 1 Gray v. Schenck, 4 N. Y. 460. 2 Ogle v. Clough, 2 Duv. (Ky.) 145. 3 Bennett v. McGuire, 5 Lans. 183, 188. The necessity of making this grantee a defendant is not apparent. It is true, his deed is sought to be set aside, but he has no interest whatever in the result; all title has passed out of him, and he cannot be affected by the judgment. See Spicer v. Hunter, 14 Abb. Pr. 4. Foster v. Townshend, 12 Abb. Pr. N. S. 469. When a debtor had conveyed land in fraud of his creditors, and the grantee had executed a mortgage thereon, the mortgagee was held a necessary defendant in a creditor's suit to set aside the conveyance. Copis v. Middleton, 2 Mad. 410. 5 Morton v. Weil, 11 Abb. Pr. 421; Reed v. Stryker, 12 Abb. Pr. 47; Jacot v. Boyle, 18 How. Pr. 106; Hamlin v. Wright, 23 Wisc. 491; Winslow v. Dousman, 18 Wisc. 456; North v. Bradway, 9 Minn. 183. accomplish the same fraudulent end. All are privy to have been concerned in acts tending to the same illegal result. The matters are not distinct, but are in truth all connected with the same fraudulent transaction in which all the defendants have participated.1 § 350. In an action brought by or on behalf of a judgment creditor, to reach a fund in the hands of an express trustee for the debtor, such debtor is a necessary defendant, and should be joined with the trustee; he is the person directly interested in the fund, and the one to be directly affected by the judgment.2 When a creditor's suit was brought to reach property fraudulently transferred by the debtor, and the alleged fraudulent transfer was consummated through the means of a third person, who in good faith received a conveyance of the property in trust for the alleged fraudulent grantee, and who subsequently conveyed the same to such grantee in accordance with the trust, such third person was held not to be a proper defendant; there was simply no cause of action against him, because he was free from any fraudulent intent.3 § 351. IV. Actions relating to the Estates of Deceased Persons; in which Heirs, Next of Kin, and Personal Representatives are Parties. The "administration suit" in chancery, by means of which the estates of deceased persons are usually settled in England, is uncommon, if not entirely unknown, in the United States. The actions which will fall under the above heading are almost entirely special cases, depending upon special circumstances: suits Briggs, 9 Paige, 595; Sizer v. Miller, 9 Paige, 605. 1 Winslow v. Dousman, 18 Wisc. 456, 462, per Cole J. In Hamlin v. Wright, 23 Wisc. 491, 494, Cole J. said: "The object of such a suit is to reach the property of the debtor, and the fact that all the grantees have become accessory to the fraudulent attempt of the debtor to place his property beyond the creditors, gives them such a common connection with the subject-matter of the suit that they may be joined, although the purchase of each was distinct from the others, and each is charged with only participating in the fraud in respect to his own purchase;" citing Brinkerhoff v. Brown, 6 Johns. Ch. R. 139, 157; Fellows v. Fellows, 4 Cow. 682; Boyd . Hoyt, 5 Paige, 65; N. Y. & N. H. R. R. v. Schuyler, 17 N. Y. 592; Story's Eq. Pl., §§ 285, 286; Dix v. 2 Vanderpoel v. Van Valkenburgh, 6 N. Y. 190. 3 Spicer v. Hunter, 14 Abb. Pr. 4. All the assets of a corporation having been divided among the stockholders, a judg ment creditor of the corporation brought this action in the nature of a creditor's suit against a stockholder in order to recover the amount of her claim out of the assets received by him. It was held that the action could be maintained, and that other stockholders need not be joined as codefendants. Bartlett v. Drew, 57 N. Y. 587, 589. For a peculiar case of misjoinder of defendants in a creditor's action, see Gale v. Battin, 16 Minn. 148, 150. by judgment creditors to reach the property of deceased debtors, or of beneficiaries to reach trust property held by deceased trustees, or of heirs or next of kin, or legatees, to set aside the fraudulent transactions of administrators and executors, and the like. It is almost impossible, therefore, to collect these various cases into any well-defined groups; each must stand upon its own facts, and will illustrate as far as possible the broad generalities of the equitable doctrine as to parties. § 352. A testator left real and personal property in fee to A., but if she should die without issue, $10,000 of it were given over to B. The original executor of this will died leaving the trust fund mingled with his own property, and the whole passed to his executor, C. A. died without issue, and B. brought an action to recover the legacy of $10,000, making C., the then executor of the original executor, the defendant. It was held by the Court of Appeals in New York, that C. was a necessary party, but that the administrator of A. was also a necessary defendant without whom the issues in the cause could not be decided.1 "He [this administrator] is a trustee of the next of kin of A., and they are interested in the fund after satisfying all charges upon it, and have a right to be heard upon any claim which tends to take it away for the benefit of another or to reduce it."2 In an action brought by one executor against his co-executor for an account, the ground of the proceeding being the breach of his trust by the latter, and the misuse of funds belonging to the estate, the legatees, next of kin, and creditors of the deceased are not necessary defendants unless the accounting is to be final; if it is made the final accounting and settlement of the trust, then all these persons must be brought in as defendants.3 The administrator in violation of his trust fraudulently conveyed lands of the estate to a person who was a participant in the fraud. This grantee died intestate. The children- the only heirs and next of kin — of the deceased original owner brought an action against the administrator and the heirs of the grantee, to set aside the fraudulent transfer, to compel a re-conveyance of the land, and for an accounting by the administrator. This action was held proper ; the heirs of the grantee were held to be necessary defendants, and 83. 1 Trustees, &c. v. Kellogg, 16 N. Y. 2 Ibid. p. 96, per Denio J. |