Carter Braxton, Trustee, v. Bell and Others. Virginia Court of Appeals: At Richmond. (November 21, 1895)

1896 The Virginia Law Register  
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more » ... out Early Journal Content at http://about.jstor.org/participate--jstor/individuals/early-journal--content. JSTOR is a digital library of academic journals, books, and primary source objects. JSTOR helps people discover, use, and build upon a wide range of content through a powerful research and teaching platform, and preserves this content for future generations. JSTOR is part of ITHAKA, a not--for--profit organization that also includes Ithaka S+R and Portico. For more information about JSTOR, please contact support@jstor.org. 1896.] BRAXTON V. BELL. 675 made by a court of three judges-two of the full bench being absent. The rather summary manner in which the question was disposed of by the court does not favor the idea that it was fully discussed at bar or deliberately considered by the court. In Vharton's Conflict of Laws, sec. 289, it is said: "But while a trustee, in order that equity may be done, will thus be ordered to make a sale in a foreign country, yet this sale is not regarded as a sale by the court, but a sale by the trustee, who proceeds according to the law of the situs. A direct jurisdiction over foreign immovables no court can assume. Thus a court of probate has no jurisdiction to direct an administrator to sell foreign real estate. Such real estate must be sold, if belonging to the decedent's estate, by order of a court of the situs. A deed not so executed is inoperative. And a trustee appointed by the court of one State cannot pass title to real estate in another State." (Italicizing in the last sentence ours.) The grounds upon which the constitutionality of the Act, drawn in question in the principal case, is sustained, apply with equal force to some other sections of the Code. Without specifying all, sec. 2460 seems to come directly and fully within the reasoning of the court in the principal case. It is well known to the profession that, previous to the Code of 1849, a creditor (with a few exceptions) could not go into a court of equity to set aside a fraudulent deed of his debtor and subject the property conveyed by it to his claim, until he had first established his claim by judgment or decree. See 2 Rob. Prac. (Old) at pp. 18, 19, and the cases there cited. The Code (1849) changed this rule of equity by allowing a creditor to institute a suit to set aside a fraudulent deed of his debtor before obtaining a judgment for his claim, and giving him, in case the deed be set aside, the same relief as if he had obtained judgment. Code of 1849, Ch. 179, sec. 2. This provision of the Code of 1849 was carried into sec. 2460 of the Code of 1887, and constitutes the first paragraph of that section. The variation in the language to a certain extent does not aftect the question of validity. Section 2460 has now been extended so as to embrace debts "not due and payable." Acts 1893-94, p. 614. As to the reasons for enlarging the equity jurisdiction under what are now sections 2460 and 2562 of the Code, see Report of the Revisors of 1849 at pp. 641 (note t), 879 (note *).
doi:10.2307/1098769 fatcat:nso4uheomfcnhhiun5jgh7tavi