Combs v. Watson. not have been prejudiced by the refusal of the court to charge that the application could not be made without his consent. Nor do we see why running accounts may not be applied in payment, if the parties agree that it may be done. The judgment of the district court affirming that of the common pleas is affirmed. COMBS v. WATSON. 1. Under section 17 of the "act regulating the mode of administering assignments in trust for the benefit of creditors," as amended February 12, 1863 (S. & S. 379), lands conveyed for the purpose of defrauding creditors inure to the benefit of such creditors; and any one of them, whether his claim be reduced to judgment or not, may bring an action to set aside such conveyance, and have the proceeds of the land applied to the payment of the creditors, as provided in said section. 2. Under the limitation prescribed by section 15 of the code, an action to set aside such fraudulent conveyance is barred after the lapse of four years from the discovery of the fraud. 3. Where the petition in such action shows on its face that the conveyance was made more than four years before the action was brought, it must contain an averment that the fraud was not discovered until within that period; otherwise, the defendant may demur to the petition on the ground that it does not state facts sufficient to constitute a cause of action. ERROR to the Superior Court of Cincinnati. The original action was brought in the Superior Court of Cincinnati, November 12, 1872, to subject certain real estate, deeded to Emily Watson by Edward Grieve, September 25, 1865, to the payment of the creditors of Charles T. Watson, for the reason that he furnished the means to pay for the same, and caused the deed to be made to his wife, to hinder, delay, and defraud his creditors, and for which purpose she accepted the conveyance. Combs v. Watson. The petition avers, that on November 1, 1860, Charles T. Watson, at Nashville, Tennessee, made his note to M. S. Combs, the plaintiff, for $750, payable eighteen months after date, with interest; that, a few days before the note became due, Watson, being the owner of a house and lot in Nashville, without consideration, and with intent to defraud his creditors, conveyed the same to one Henderson, his brother-in-law, who afterward sold the property for a large sum of money, which he paid over to Watson; that Watson, September 25, 1865, purchased the premises in question for $4,000, of which he paid $3,000 in cash, and gave his three notes, secured by mortgage, to Grieve, the last of which notes became due September 28, 1868, all of which were duly paid by Watson; that in June, 1872, the plaintiff obtained a judgment against Watson, on his note against him, for $1,275.50, which is still in full force, and wholly unpaid; that he has caused an execution to be levied on the real estate sought by this action to be subjected to the payment of the creditors of Watson, who is insolvent; and asks that the deed to the wife be declared void, and the lands subjected to the payment of Watson's creditors. Mrs. Watson demurred to the petition, on the ground that it did not state facts sufficient to constitute a cause of action. The court sustained the demurrer, and rendered judgment in her favor. This is assigned for error. Jacob Shroder, for plaintiff in error, claimed: 1. That, inasmuch as the petition did not show that the fraud was discovered more than four years before the commencement of the action, the demurrer ought to have been overruled. Huston v. Craighead, 23 Ohio St. 199; Sturges v. Burton, 8 Ohio St. 220; Long v. Mulford, 17 Ohio St. 509; Thomas v. Westerman, 7 Met. (Mass.), 229. 2. Under section 17 of the act passed April 6, 1859, as amended February 12, 1863 (S. & S. 397), regulating the mode of administering assignments in trust for the benefit Combs v. Watson. of creditors, the cause of action of a judgment creditor accrues when he recovers his judgment. a. So much of said action as relates to the avoidance of fraudulent conveyances is but a modern transcript of the 13 Eliz. Ch. 5, which, on its part, was but a declaration of a wellestablished rule of equity. In chancery none but a judgment creditor could have sustained a suit to set aside a fraudulent conveyance. Adam's Equity (marginal), 147, 148; Andrews v. Durant, 18 N. Y. 500; Hastings v. Belknap, 1 Denio, 198; Colman v. Croker, 1 Vesey, Jr., 160; Ludlow v. Dutton, 1 Phil. Rep. 226 (8 Leg. Int. 130); 1 Monroe (Ky.), 106, 107, 232. b. This equity rule does not appear to have operated so grievously as to invoke a legislative remedy. In none of the cases decided by this court has either the court or the counsel complained of its supposed dilatory operation. Unless a creditor has a certain claim upon the property his action may lead to an unnecessary, and, perhaps, fruitless and oppessive interruption of the exercise of the debtor's rights. Wiggins v. Armstrong et al., 2 Johns. Ch. 144; Peyton v. Lamer, 42 Ga. 131, and 124, 530. c. There is no expression in said section which would warrant a departure from the rule of equity referred to, unless it be the phrase, " at the suit of any creditor." Now, as this section is a part of an act regulating the mode of administering assignments in trust for the benefit of creditors, and as the amendment to the original section addresses itself to merely more explicit and elaborate directions for administering the trust, it seems clear that the amendment is not intended to affect that portion of the section which relates only to the avoidance of fraudulent conveyances. Under said section, the only foundation of "a court of competent jurisdiction (a court with equity powers), is to declare that such a transfer had been made with that intent aforesaid." The section does not contemplate any proceedings under Combs v. Watson. it for the recovery of a judgment. It presumes the petitioning creditor to be a judgment creditor. Collins & Herron, for the defendant in error. DAY, Chief Judge. The court below sustained the demurrer to the petition on the ground that the action was barred. by the statute of limitations. The action was for relief on the ground of fraud. It is, therefore, conceded that it comes within the limitation prescribed in the 15th section of the code, of four years after the cause of action accrued. The plaintiff's claim against C. T. Watson originated November 1, 1860. The deed to Emily Watson, his wife, which is claimed to be fraudulent, was made September, 5, 1865. Judgment was rendered on plaintiff's claim in June, 1872. The petition in this case was filed November 12, 1872. It appears, then, that when this action was brought, more than four years had intervened after the date of the alleged fraudulent conveyance, but that a period less than that had elapsed from the rendition of the judgment on the plaintiff's claim. Upon this state of facts, two questions are made: 1. Whether the cause of action accrued at the date of the alleged fraudulent conveyance to Emily Watson, or at the date of the judgment obtained against C. T. Watson. 2. If the cause of action accrued at the date of such conveyance, which appears by the petition to have been more than four years before the beginning of the suit, whether it was necessary for the plaintiff to aver in his petition that the discovery of the alleged fraud was not made until within the period fixed by the statute. It may be conceeded, that, without a statute authorizing it, no action can be maintained by a creditor to set aside a conveyance of real estate, made to defraud creditors, until he has reduced his claim to judgment. But in this state, such conveyances are controlled by statutory enactments. By section 17 of the "act regulating the mode of adminsttering assignments in trust for the benefit of creditors," Combs v. Watson. passed Apri 16, 1859 (S. & C. 713), it was provided that all conveyances, made with intent to defraud creditors, should inure to the equal benefit of all creditors, in proportion to the amount of their respective claims; and the probate judge, after any such conveyance was declared by a court of competent jurisdiction to have been made with such intent, on the application of any creditor, was required to appoint an assignee to take possession of the property and administer it as in other cases of assignment. That section, however, did not enact that any creditor might maintain an action to have such conveyances adjudged to be fraudulent, though any creditor might have an assignee appointed, after such adjudication had been duly made. But, on February 12, 1863, this section was amended. (S. & S. 397.) It provides that all conveyances made to "defraud creditors shall be declared void at the suit of any creditor;" and that the probate judge, on application of any creditor, after the conveyance is adjudged to be void, may appoint an assignee to take possession of the property and administer it for the benefit of the creditors. The section, moreover, requires "any creditor," who institutes such suit, to make publication thereof, and authorizes "all creditors," who wish to join in prosecuting the suit, to come in and share proceeds and expenses equally with the creditor who brings the suit. The section was otherwise amended, it is true, but there was no occasion for the amendment as to the party who might bring suit to have such conveyances declared void, unless it was to extend the right beyond that of judgment creditors, so as to include "any" and "all" creditors; for judgment creditors had an undoubted right to bring such suits under the section as it stood without this amendment. Moreover, this view is consistent with the remaining amendments of the section, made at the same time, to permit "all creditors," who may desire to come in and share in the fortunes of the case, to the exclusion of those who do not. There is no doubt but that any creditor may come |