Holladay v. Holladay

Opinion by Mr. Justice McGowan, [622] This was an action by judgment creditors, the complaint alleging a voluntary deed by their debtor while indebted, to the defendants, his wife and children, the death of the debtor, judgments obtained by the plaintiffs and returns of nulla bona thereon, and that said voluntary deed was fraudulent. The executor -was also a party defendant. The defendants interposed an oral demurrer which was overruled by the Circuit Judge (Kershaw), and he further ordered “that the defendants have twenty days after the rising of this court in which to file answers,” and “that upon the expiration of the time above provided for the coming in of the answers that this cause be referred to the master, and that he take the testimony and report the same, together with his conclusions of law and fact to this court.” On appeal by defendants, held, 1. That this was not an action against heirs to reach real estate descended, but against donees of a voluntary deed to set it aside for fraud, and that the complaint was sufficient. [623] 2. “When the judgments were recovered against the executor, it was not necessary that the wife and children of the debtor should be made parties, for they were privies in estate with the executor and bound by judgments against him as to the existence of the debts and all matters necessarily involved and therein adjudicated.” 3. The order of reference was premature, both because it was before the answers were filed, and because an appeal from the order overruling the oral demurrer was then pending. 4. Under the demurrer, the question whether the land conveyed was the debtor’s homestead, was not involved.