delivered the opinion of the court.
Appellees filed their complaint in the court below, alleging facts sufficient to authorize a money judgment against one of the appellants, and further alleging that, subsequent to the incurring of the indebtedness set forth in the complaint, certain real estate had been fraudulently and' without consideration conveyed by the debtor to the other appellant for the purpose of defrauding creditors; and in their complaint they asked for such money judgment against the defendant owing the debt, and also as against both defendants, that the said conveyance be set aside for fraud and the property subjected to the payment of the said money judgment. This complaint was upon default of defendants taken as confessed, and judgment and decree rendered thereon as prayed, which is now here for review. Under these circumstances, the only question which this court is called upon to decide is as to the sufficiency of the complaint to sustain the judgment. So far as the money judgment against the debtor is concerned, there seems no reason to doubt the sufficiency of the complaint and the regularity of such judgment. But it is contended that the complaint does not state facts sufficient to constitute a cause of action in equity; and if this is so, it of course follows that so much of the judgment as attempts to give equitable relief must be vacated and set aside, as such a defect in the complaint can be taken advantage of at any time as well in this court as in the court below. (Code 1881, sec. 81.)
Counsel for appellees contend that a court of equity will interfere in aid of a creditor when it appears that he cannot collect his debt by the ordinary process of law, though it appears that he has not reduced his claim to judgment, nor in any manner obtained any lien upon *36the property in regard to which he seeks such aid; and if this position is true, then it is possible that the allegations of this complaint are sufficient. This, then, is the only question in this case.
It is conceded that the old authorities fully established the doctrine that a court of equity would not thus interfere until the creditor had exhausted his remedy at law, but it is claimed that under the reformed practice established by our Organic Act, and the laws enacted thereunder, the situation has been changed, and that equity will now interfere as above stated. No authority, however, has been cited that goes so far as to support such claim, with the possible exception of the case of Macondray v. Simmons, 1 Cal. 393; and we do not think that case sufficiently well reasoned to justify us in following it against the large array of authorities cited taking a different view.
We are satisfied with the reasoning of Judge Deady in the case of Kohn v. Solomon, 10 Saw. 183, cited by counsel for appellee; but it certainly cannot be claimed that he has gone so .far as to justify the claim of appellees above referred to, as the only manner in which that case tends to change the old rule stated is to hold that a court of equity will extend its aid to a lien by attachment,. even although the creditor had not exhausted his remedy at law; yet with the exception of the case in 1 California, above cited, we have had our attention called to no case going further, from which it must follow that upon authority the claim of appellees is not tenable. And we see no peculiarities growing out of our system or laws to justify any special rule here, as in our opinion the respective jurisdictions in law and in equity have been in no manner changed by the laws of this territory, the only effect thereof being to allow them to be joined in the same action, without at all affecting the allegations in either necessary to constitute a cause of action.
It follows that the judgment must be vacated and set *37aside as far as it attempts to give equitable relief. The cause will be remitted to the court below, with instructions to thus vacate.and modify the judgment, and then proceed thereunder as required by law. The appellants will recover their costs on appeal.
Greene, C. J., and Turner, J., concurred.
Langford, J., did not participate in the hearing or decision of this case.