Bowman v. Sherrill

Fraudulent Conveyances — Proceedings—Execution—Necessity. 1. Where one is insolvent or has been adjudged a bankrupt, when he conveys land in fraud of creditors, the issuance of an execution is not necessary to entitle creditors to set aside the conveyance. Homestead — Right. 2. The right of either the husband or wife to claim a homestead in property is not defeated by its conveyances from one of them to the other for the purpose of keeping the property from creditors. Homestead — -Exemption-—Claim in Creditors' Suit — Right. 3. Since a decree sought in a suit by creditors to have property claimed to have been fraudulently conveyed sold, and the proceeds applied upon the debts, would practically operate as an execution, the debtor may claim a homestead exemption in the property sold in such suit.

From Washington: James U. Campbell, Judge. Statement by Mr. Justice McBride. This is an action by Benton Bowman, trustee in bankruptcy of the bankrupt estate of W. E. Sherrill, against W. E. Sherrill and Lizzie M. Sherrill, his wife. The facts are as follows: In January, 1909, W. E. Sherrill was adjudged a voluntary bankrupt, and plaintiff was appointed his trustee in bankruptcy. Prior to this, on October 28, 1908, Sherrill, without consideration, conveyed to W. P. Dyke certain land described in the complaint and hereinafter called, for convenience, “a part of the Moore claim.” On the same day Dyke conveyed the land without any actual consideration to Mrs. Sherill. On the 13th of November, 1908, Sherrill traded a team of horses to one Weisenbeck for lot 6, in block 37, South Coast Addition to the city of Hillsboro, taking a deed therefor in his wife’s name. Plaintiff brings this suit to have the deed declared fraudulent as to creditors, and praying that the property be sold and the proceeds applied upon the proved debts of W. E. Sherrill. Defendants answered, denying all allegations of intent to cheat or defraud creditors, and further set up that the land situated in the Moore claim is a homestead, and therefore exempt from execution and sale.