Ellis v. Reed

GILBERT, Circuit Judge (after stating the facts as above). The appellant contends that the appellee’s assignors obtained no lien upon the mining claim by their attachments, for the reason that no certificate was filed in compliance with section 974, Compiled Laws of Alaska, which provides that, if real property be attached, the marshal shall make a certificate, and within ten days from the date of the attachment shall deliver the same to the commissioner for record in the district in which the real property is situated, and declares: “When such certificate is so filed for record, the lien in favor of the plaintiff shall attach to the real property described in the certificate from the date of the attachment, but, if filed afterwards, it shall only attach, as against third persons, from the date of such subsequent filing.” We think the statute means that the record of the certificate shall affect only third persons; that is, persons who purchase or acquire interest in the property after the date of the attachment. Dickson v. Back, 32 Or. 217, 223, 51 P. 727. The appellant here was not a “third person” within the meaning of the statute. It was his property that was attached. He was still owing on his contract more than enough to satisfy the claims of the attaching credi [498] tors. He had actual notice of the attachments within a very short time after they were levied, and he was thereby put upon notice to ascertain the nature of the claims that were asserted against his property. The principal question in the case is whether there was evidence to sustain the decree. The only proof offered to show that the transfer from Thompson to Cummings was fraudulent was a transcript of the judgment rendered in the case of Reed v. Thompson et al., which was affirmed by this court in Thompson v. Reed, 202 F. 870, 121 C.C.A. 228. The appellant objected to the admission of the judgment as not binding upon him, for the reason that neither he nor the assignors of the appellee were parties to that suit, and for the reason that by that judgment the conveyance from Thompson to Cummings was held void only as to the creditors who were represented in that suit. We think the objection should have been sustained. In such a suit to set aside a fraudulent conveyance, all that the plaintiff can demand, and all that the court can award him, is that the conveyance be annulled or removed so far as it obstructs the enforcement of his judgment. A decree in such a suit does not affect the validity of the transfer by the conveyance as between the grantor and the grantee. 20 Cyc. 821, 822. When fraud has been established as to one creditor, it has not the effect to vitiate the conveyance as to all other creditors. The decree in such a suit merely avoids the conveyance as to the plaintiff therein, and as to all the other creditors it remains as though no proceedings had been taken. On the question whether the conveyance was fraudulent as to the creditors represented in the present suit, the appellant here was entitled to his day in court. The question of fraud is not disposed of by a prior adjudication to which these creditors were not parties nor privies. Byrd v. Hall, 196 F. 762, 117 C.C.A. 568; McCalmont v. Lawrence, 1 Blatchf. 232, Fed.Cas.No.8,676; Sturges v. Portis Mining Co. (D.C.) 206 F. 534; Goodwin v. Snyder, 75 Wis. 450, 44 N.W. 746; Bell v. Wilson, 52 Ark. 171, 12 S.W. 328, 5 L.R.A. 370; McDowell v. McMurria, 107 Ga. 812, 33 S.E. 709, 73 Am.St.Rep. 155; Kerr v. Hutchins, 46 Tex. 384. [499] The decree is reversed, with costs to the appellant, and the cause is remanded to the court below, to afford the appellee the opportunity to take such proceedings as are suggested in Roemer v. Simon, 91 U.S. 149, 23 L.Ed. 267.