GUARDIAN AND WARD-APPOINTMENT OF GUARDIAN OF NON-RESIDENT MINOR. - A probate court of this state may appoint a guardian for a nonresident minor as respects any estate he may have in this state: West Duluth Land Co. v. Kurtz, 45 Minn. 380; Shelby v. Harrison, 84 Ky. 144. Where an infant resides in another state, but has property here, he may have guar. dians appointed in both jurisdictions; the foreign guardian has the custody of his person, and the domestic guardian has control of his property within this state, and neither can interfere with the other: Kraft v. Wickey, 4 Gill & J. 332; 23 Am. Dec. 569, and note. The probate court of a county in this state, in which there is realty of a ward residing in another state, under guardianship by appointment of a guardian in another state, is the "probate court having jurisdiction," upon an application of such guardian to sell the realty situated here: Menage v. Jones, 40 Minn. 254. See also Boyd v. Glass, 34 Ga. 253; 89 Am. Dec. 252, and note. As to the appointment, rights, powers, and duties of guardians of non-resident minors, see note to Earl v. Dresser, 95 Am. Dec. 666, and note to Molyneux v. Seymour, 76 Am. Dec. 669.

OVERMIRE V. HAWORTH.

[48 MINNESOTA, 372.]

CREDITOR'S BILL-RESULTING TRUSTS. If the statute of a state provides that when property purchased by the debtor is conveyed to a third person, with intent to defraud the creditors of such debtor, a trust shall result in favor of such creditors to the extent that may be necessary to satisfy their demands, they may, if residents of the state, prosecute an action to enfore such trust, without first obtaining judgment on their demand, if their debtor is a non-resident of the state, and has no property therein which can be appropriated to the satisfaction of the debt by legal proceedings.

C. L. Smith, and Brooks and Hendrix, for the appellant.

Hahn and Hawley, for the respondent.

DICKINSON, J. This action is prosecuted to enforce a resulting trust, under General Statutes of 1878, chapter 43, sections 7, 8, as respects certain land in this state, which, upon purchase, were conveyed to the defendant, her husband, one L. L. Haworth, having paid the whole consideration therefor. The plaintiff is a simple contract creditor of L. L. Haworth, who resided in the state of Illinois when the debt was contracted, and who ever since has resided there. The said debtor, Haworth, has never owned any property within this state. He procured the conveyance of the land in question to be made to the defendant, his wife, with intent to defraud his creditors, including the plaintiff. It does not appear whether the debtor, Haworth, is solvent or insolvent. By the terms of the statute above cited, a trust in the land results in

favor of the creditors of the person paying the consideration "to the extent that may be necessary to satisfy their just demands." In Massey v. Gorton, 12 Minn. 145, 90 Am. Dec. 287, it was said that a mere simple contract creditor is not entitled to relief under this statute; that he must obtain judgment at law before seeking relief in equity. And in Moffatt V. Tuttle, 35 Minn. 301, it was decided that a creditor is not entitled to such relief until he has exhausted his remedies at law. It was considered, in that case, to be a sufficient reason for refusing the aid of equity to enforce the statutory trust, that it was not shown that execution had been returned unsatisfied, or that the judgment debtor was insolvent, or had no property subject to execution. It must be regarded as the general rule, in this state at least, that the creditor must proceed to recover and enforce judgment at law against his debtor before he will be allowed to maintain an action of an equitable nature to enforce the statutory trust. But the rule which forbids resort to equity for relief when there is an adequate legal remedy is not to be applied with such strictness as to practically deny to a party having a right against another, legal or equitable, any reasonably available means of enforcing it. It is true that an equitable suit will not be entertained if there is no necessity for resorting to such a proceeding. But even though the law does offer a remedy which may be resorted to, still, if it be not adequate to the requirements of the case, equity should not refuse its aid within the proper scope of its jurisdiction. If the legal remedy be not reasonably available and effectual, there would seem to be no reason forbidding resort to equitable relief. For instance, a fraudulent debtor may abscond to some distant but known place, as to India, leaving no property within our jurisdiction which can be reached by attachment or ordinary legal proceedings, but leaving property which, by the aid of a court of equity, may be reached and appropriated to the satisfaction of his debts. We think that equity would not refuse to exercise its ordinary jurisdiction in favor of a creditor, under such circumstances, for the reason merely that he might secure a legal recovery and satisfaction in India, but at an expense far greater than the amount of his debt. In such a case, and in others which will readily occur to the mind, it is obvious that the ordinary course of legal proceedings affords in reality no adequate or real means of redress.

Upon the point here in question there is a conflict of au

thority. We think that the better reason supports the view that the resulting trust created by the statute may be enforced in favor of one of our citizens, even though he has not recovered a judgment for his debt, the debtor being a nonresident, and beyond the jurisdiction of our courts, and having no property here which can be appropriated by legal proceedings to the satisfaction of the debt. In support of this conclusion the following authorities may be cited: Merchants' Nat. Bank v. Paine, 13 R. I. 592; Kipper v. Glancey, 2 Blackf. 356; Stanton v. Embry, 46 Conn. 595; Peay v. Morrison's Ex'rs, 10 Gratt. 149; Scott v. McMillen, 1 Litt. 302; 13 Am. Dec. 239; Anderson v. Bradford, 5 J. J. Marsh. 69; Kinloch v. Meyer, 1 Speers Eq. 427; Farrar v. Haselden, 9 Rich. Eq. 331; Pendleton v. Perkins, 49 Mo. 565; and see High on Injunctions, sec. 29.

In so deciding we decline to follow or to apply in the case before us the ruling upon the last ground stated in the opinion in Birdsall v. Fischer, 17 Minn. 100. The case before us does not require that we consider or determine whether the non-residence of a debtor and the non-existence of a legal remedy in the courts of our own state is always to be regarded as a sufficient reason for invoking the aid of equity. It is sufficient to say that such a case is deemed to justify the enforcement, in favor of a resident creditor, of the specific trust resulting under the statute from the fraudulent conduct of the non-resident debtor in procuring property purchased by him, and over which our jurisdiction extends, to be conveyed to a voluntary grantee for the purpose of keeping it beyond the reach of his creditors. The objection that the plaintiff had not reduced his demand to judgment, as he could not have done without going to a foreign state for that purpose, and that the proof of his debt in this action was not conclusive personally upon the debtor, is not a sufficient reason for refusing to enforce the trust which was imposed on the land when the debtor purchased it, and for the purpose of defrauding his creditors, procured the conveyance to be made to the defendant. This objection might be urged with equal force against the propriety of allowing legal proceedings by attachment against the property of non-resident debtors to satisfy debts for which no personal judgment is recovered. Judgment affirmed.

CREDITOR'S SUIT-JUDGMENT AT LAW, WHEN NOT NECESSARY TO MAINTAIN. — A creditor may, without a judgment at law, have a fraudulent sale

set aside, under the Mississippi statute: Comstock v. Rayford, 1 Smedes & M. 423; 40 Am. Dec. 102, and note. See extended note to Massey v. Gorton, 90 Am. Dec. 296, also note to Miller v. Davidson, 44 Am. Deo. 722, and especially note to Quarl v. Abbett, 52 Am. Rep. 673.

FULLINGTON v. NORTHWESTERN IMPORTERS' AND BREEDERS' ASSOCIATION.

[48 MINNESOTA, 490.]

FRAUDULENT TRANSFERS. —A SUBSEQUENT Creditor cannot avoid a conveyance by his debtor, not intended to nor operating to defraud him, on the ground that it was executed to defraud existing creditors.

Haynes and Chase, for the appellant.

Little and Nunn, for the respondent.

GILFILLAN, C. J. The nature of the instrument under which the garnishee defendant claims title to the property is, as the plaintiff claims it to be, a common-law assignment for the benefit of creditors. Although it is not very clear that the assignor had at its date any creditors who did not assent to the assignment by signing it, we may assume that he had, and that, as to them, the assignment is fraudulent, and consequently void. There is no evidence of any intent to defraud any who might become creditors after its execution; that it was made with any reference to or in contemplation of future debts of the assignor; and there is nothing in its character, nor in the acts of the parties under it, to make it operate as a fraud upon such creditors. The plaintiff is a subsequent creditor, so that the question is presented, Can a subsequent creditor avoid a conveyance by his debtor, not intended to nor operating to defraud him, on the ground that it was executed with intent to defraud existing creditors? This court has always held he cannot: Bruggerman v. Hoerr, 7 Minn. 337; 82 Am. Dec. 97; Stone v. Myers, 9 Minn. 303; 86 Am. Dec. 104; Sanders v. Chandler, 26 Minn. 273; Hartman v. Weiland, 36 Minn. 223; Bloom v. Moy, 43 Minn. 397; 19 Am. St. Rep. 243. One expression in Walsh v. Byrnes, 39 Minn. 527, may point to a different conclusion, but the entire opinion is to the effect that to enable a subsequent creditor to avoid a transfer as fraudulent, it must appear that its purpose was, or that its effect will be, to defraud him. An intent to defraud existing creditors may, in connection with other circumstances, be evidence on

the question of intent to defraud subsequent or prospective creditors: Union Nat. Bank v. Pray, 44 Minn. 168. There is no little confusion in the authorities on the point, there being many dicta to the effect, and some decisions directly holding, that a subsequent creditor may avoid a conveyance fraudulent as to existing creditors, and other decisions the majority of the more modern decisions-holding the contrary. Few hold unqualifiedly that a conveyance is void as to subsequent creditors merely because made with intent to defraud creditors who were such at the time of its execution. In most of the decisions of the former class referred to, the effect as to subsequent creditors is made to depend on the circumstances under which the conveyance with intent to defraud existing creditors was made. In this state, where the question of the fraudulent intent is one of fact, and not of law, the circumstances referred to in those cases would not make the conveyance void per se, but would be evidence of a fraudulent intent as to subsequent creditors. The evidence might be of such a character as where the fraudulent intent appears by the instrument making the conveyance as to be conclusive, and compel a finding of its existence. It seems reasonable that a creditor assailing a conveyance by his debtor should stand on its intent or effect as to himself, and that A ought not to be permitted to avoid it merely because it was intended to or will prejudice B. A conveyance may be made with intent to defraud existing, but without such intent as to subsequent, creditors, or it may be with intent to defraud only subsequent creditors, or it may be to defraud both classes. The purpose of the rule of the common law, and of the statute which reasserts that rule, is to defeat the intended fraud, which it does by making the conveyance void as to the persons intended to be defrauded, and who will be defrauded unless it be avoided. The statute (13 Eliz., c. 5), which all subsequent statutes follow in substance, if not in terms, avoided the conveyance "only as against those persons, their heirs," etc., "whose actions," etc., "are defrauded." There is no warrant in it for holding that one class of creditors may avoid a conveyance merely on the ground that it was intended to, and if sustained will, defraud another class.

Judgment affirmed.

FRAUDULENT CONVEYANCES

RIGHT OF SUBSEQUENT CREDITORS TO ATFor a full discussion of this subject, see extended note to Hagerman ▼. Buchanan, 14 Am. St. Rep. 743-754. A creditor, to obtain relief against

PACK.