The opinion
Denison, J., dissenting.
I respectfully dissent from the opinion of the majority of the court in this case.
There are three grounds, upon either of which I am of the opinion that the judgment below should be reversed.
First—It is a general rule of law, clearly indicated by the ele- ■ mentary writers, such as Kent and Story, and asserted in all the decisions of the courts of the United States.(with one exception hereafter to be noticed), that a creditor cannot attack the voluntary conveyance of his debtor until he has first prosecuted his claim • *321 to judgment, or, in other words, none hut a judgment creditor is in a position to enable him to attack such conveyance. The only exception to this rule is in the case of Scott v. MeMillen, cited in the opinion of the majority of the court. In the said cited case, the above general rule is fully sustained; but an exception to it is allowed on account of the peculiar laws of Kentucky, where the case was decided. These laws of Kentucky provide no means for obtaining judgment against a non-resident, debtor, and consequently, on account of this defect in the law, a creditor not having judgment, was allowed to attack the voluntary conveyance of his debtor, who was a non-resident. This single exception to the general rule is rather confirmative of the general rule than derogatory thereto.
Second—I think it was erroneous in the court below to permit two distinct and separate actions to be carried on in the same suit. These two separate actions were, first, a suit attacking the validity of a voluntary conveyance, and a suit upon two foreign judgments. Each of these two suits was entirely different in its nature from the other, and the necessary parties defendant in each were different from those in the other. In the first case the: necessary parties defendants were simply A. L. Ward, and', Hughes, his assignee. In the second case the only necessary party-defendant was Samuel Ward. As an evidence of the evil of," prosecuting the two suits in one, the evidence of Samuel Ward,, who was a disinterested and competent witness in the first above mentioned suit, was ruled out, and the defendants therein, deprived! of the benefit thereof, simply because he was a party defendant in the conglomerate suit.
Third—It appears by the record that in the progress of the suit the attachment was quashed, thus leaving the court without jurisdiction in the matter, because it was only by the attachment that the court acquired jurisdiction in the case. It may be urged that this; attachment was wrongfully quashed, but this is not so„ *322 because tbe attachment was issued fur the purpose of attacking the voluntary conveyance, without first having obtained judgment in accordance with the rule stated above. It is also said that this quashing of the attachment was too late in the progress of the suit. All that is to be answered in reference to this objection is that the attachment, being wrongfully issued, should have been quashed at any stage of the proceedings; and if not quashed at all by the court below upon motion, it would have been such error in the court below as would have warranted a reversal of the .judgment. It may be further said that the levy of the attachment was void, and conferred no jurisdiction on -the court, because the levy was upon the land as the property of Samuel Ward, when the record shows that the legal title to the land was vested in A. L. Ward and his assignee, and the equitable title thereof, if any existed, was not in him, Samuel Ward. The title, both legal and equitable, had departed from Samuel Ward, and he had no interest, either legal or equitable, therein. It is urged that unless some property of Samuel Ward had been levied upon under the attachment, the court acquired no jurisdiction over him by the attachment ; therefore, no judgment could be rendered against him in this proceeding.
For these reasons I am clearly of the opinion that the judgment below should have been reversed. •
Reversed.