U.S. Supreme Court
Venable v. McDonald, 27 U.S. 2 Pet. 107 107 (1829)
Venable v. McDonald
27 U.S. (2 Pet.) 107
The Court set aside a conveyance which had been made to defeat the ,claims of creditors.
In proceedings to set aside a conveyance of real estate made in fraud of the rights of creditors, it is not necessary to make a mortgagee of the estate a party, his rights under the mortgage not being brought into question.
The appellees, at the May term 1822 of the Circuit Court for the District of Kentucky, obtained a decree against Venable and others for the sum of $4,700 with interest and costs upon which execution was issued and levied by the marshal upon 367 acres of land and sundry slaves and other property, named in the return, dated September 2, 1822, shown, as the marshal says, "as the property of Abraham Venable, and not sold for the want of time."
On 26 November, 1822, the appellees exhibited their bill, in which, after giving a history of their case, and stating the facts of the levy on the property of Venable as above, they charge that on 9 February, 1822, the said Venable executed two several deeds, whereby he conveyed all the land, slaves and effects, which belonged to him to George McDonald, who is made defendant; that
"the said deeds are fraudulent, intended to defraud the creditors of the said Venable, particularly the complainants, and were executed without any valuable or legal consideration passing between the parties, with that fraudulent purpose and intent,"
&c. The complainants pray that the said estate and property be decreed to be sold to discharge the debt aforesaid for an injunction and for general relief.
The defendant, McDonald, by his answer admits that he claims the property as his own by virtue of a contract and the conveyances which are referred to, and also in virtue of a mortgage executed long anterior to the decree against chanrobles.com-red
Venable by said Venable to him and George Norten in order to indemnify them for their joint liability as the security of Venable in two bonds, the one as the administrator of the estate of George Adams and also as the security for said Venable as the guardian of the infant heirs of said Adams, states the probable extent of that liability, and denies all fraud or intention of fraud.
The evidence and proceedings and other matters in the case are stated more at large in the opinion of the Court.
The court below by decree declared the conveyance to McDonald fraudulent and void and directed the sale of the estate, under the execution, subject however to the mortgage executed by the defendant Venable to the defendant George McDonald and George Norten dated 22 May, 1820, which deed of mortgage is not in any manner to be affected by said decree.
The defendants below prosecuted this appeal, and claimed to reverse the same on the ground:
1. That the court erred in the decree in annulling the deeds of Abraham Venable to George McDonald.
2. The court ought not to have directed a sale of the real and personal estate conveyed by Abraham Venable to George McDonald and George Norten and in their possession until the mortgage was satisfied or the condition it contained was performed.
3. Want of parties. No decree should have been pronounced by which the interest of George Norten in the mortgaged premises could be affected as he was not before the court. chanrobles.com-red