By the Court
Emmett, C. J.Whether the Defendant Jacob Myers had property in the State to give the Court jurisdiction in the action mentioned in the complaint, wherein the Plaintiff recovered a judgment against him, is not a question that can be raised in this collateral way. We regard the fact of the judgment having been so rendered, as conclusive upon that question except in a direct proceeding in the action itself for relief. But even in this view, the question is of no practical importance to a non-resident Defendant, against whom judgment has been rendered, in any case in which the Court obtains jurisdiction by reason of his having property in the State; because, as it is property alone that confers jurisdiction in these cases, (and then only to the extent of such property,) it would seem to follow that the judgment would expend itself on the property which conferred, *310or aided in conferring, the jurisdiction, which Avould only embrace such as was within the State at the time the jurisdiction attached. It would not, therefore, seriously injure the Defendant in such an an action, oven if there were, in fact, no property at the time to confer jurisdiction, because there would be nothing on which the judgment could be levied.
But such a judgment, though in form in personam,, is in effect only a judgment in rem. It is a judgment for no other purpose than to reach the property which a non-resident may have in the State, but who is not personally served with process therein. It is confined exclusively to such property, and is of no further force when that is exhausted. Beyond this it is evidence of nothing; <nor does it bind or conclude the Defendant in anything. An action could not be maintained on it in any other court here or elsewhere ; nor, in my opinion, would the party in whose favor it was rendered be precluded thereby from still bringing another action 'on the original consideration, for any balance that might be due to him, after exhausting the property which was in the State at the time jurisdiction attached. To hold that a judgment thus rendered has any vitality after exhausting the only thing over which the Court rendering it had jurisdiction, is violative of a principlein-herent in all free governments, and which constitutes an inflexible rule at common law, viz., that no one can be condemned unheard. It is not disputed that whatever of interest the Defendant Jacob Myers now has in the property sought to be reached by this action, he also had at the commencement of the action mentioned in the complaint in which the Plaintiff recovered a judgment, as therein stated. It is further virtually admitted that his interest in said property formed the sole foundation for such jurisdiction as the Court acquired in said former action, he having no other property in the State at the time. It is manifest, therefore, that in determining the real merits of the controversy between these parties, it would be of the utmost importance to ascertain whether the interest which the pleadings show the Defendant Jacob to have had in said land, was “ property,” within the meaning of the term as used in the statute, and as such liable to seizure on attach-*311mentor execution. Neither party, however, has thought it necessary to give prominence to this question, or indeed to do more than refer to it in very general terms, and we have no disposition to decide a question of so much importance upon such argument merely, especially as the case may be disposed of without touching the'point referred to.
We have repeatedly recognized the doctrine, that in order to entitle a creditor to relief against a fraudulent disposition of property by his debtor, he must show himself to havebeen such creditor at the time the act was done which he claims to be in fraud of his rights.
Nor is our confidence in the soundness of this doctrine at all shaken by the difference which counsel for the Plaintiff has pointed out between our statute and that of the State of New York, from which ours is alleged to have been taken. The statute of New York, it is true, puts the construction beyond question by declaring certain conveyances “ fraudulent as against the creditors at the time of the person paying the consideration,” while the statute of this State omits the words, “ at the time." We are of opinion that the doctrine has its foundation in principle, and not in a mere provision of statute; and that if our statute on the subject was really drawn from that of New York, the omission referred to was not designed to inaugurate a different doctrine here, but rather occurred because it was not thought necessary to declare what was already well settled by nu-nerous decisions.
The Defendants here insist that the Plaintiff was not a creditor of the said Jacob Myers, until after breach of the condition of the bond, on which the former action was brought; and that it nowhere appears in this case when such breach occurred. On the other hand, the Plaintiff contends that he became a creditor from the date of his bond; and in this we think that the Plaintiff is right. By the very terms of a bond the obligor acknowledges himself to owe, and the condition merely points out the way in which this admitted indebtedness may be avoided. The debt cannot, in strictness, be said to accrue on breach of the condition —it remains if the condition be not complied with. The fact *312that the statute, or equity, interferes and prevents the collection of -more than the damage really sustained, does not change the principle, but rather confirms it; because, but for such interference, the whole of the bond would be collected as of course. The liability is incurred by the making of the instrument, and the obli-gor is a debtor by his own acknowledgment under seal, from that time, and until he complies with its conditions.
But even this does not relieve the Plaintiff altogether from the objection that he was not a creditor at the time the conveyances were made, against which he seeks relief.
There are three of these conveyances — one long prior to the execution of the bond on which the Plaintiff recovered his judgment, another made by the Plaintiff himself, bearing date the same day as said bond, and the other made some time afterwards. They all run to the Defendant, Susan R. Myers, as grantee, and in every instance the consideration is alleged to have been furnished by the Defendant, Jacob Myers, and the deed made to his wife the said Susan, “ with intent and design, and for the purpose of hindering, delaying and defrauding his creditors.” And these allegations are not denied.
The Plaintiff prays that each and all of these conveyances be adjudged fraudulent as against him — that a trust therein be declared in his favor to the extent necessary to satisfy his judgment, that each be declared subject to such trust in the hands of said grantee ; and that the lands thereby conveyed, or sufficient thereof, be sold to satisfy his said judgment, costs, &o. The Court below ordered judgment to be entered for the Plaintiff, for the relief demanded in the complaint, which, in our opinion, was entirely too broad, in view of the facts above referred to. For whether or not the Plaintiff, after participating, as above stated, in one of the acts claimed to have been fraudulent, can take advantage of his own conveyance in this manner, or whether or not he would not, at any rate, have to show affirmatively to the satisfaction of the Court, that the bond actually preceded the conveyance of the same date (questions which it is not necessary to decide at this time), one thing is certain, the order for judgment *313does include one conveyance, about which there can be no dispute in regard to its having been made prior to the time when the Plaintiff, according to his own showing, became the creditor of the Defendant, Jacob Myers; and this alone would render the order erroneous.
The Plaintiff insists, however, that he need not to depend upon the resulting trust to his use as a creditor, created by the statute; that the actual fraud alleged and not denied, entitles him to tlie relief he demands. We will not inquire into the merits of the point hero made ; suffice it to say, that we might admit the truth of the proposition it embraces, and still the order appealed from would be equally liable to the objection above stated ; for whether the Plaintiff, as a creditor, claim relief under the statute, or on the more general ground of fraud, admitted by the state of the pleadings, it is quite as necessary in either case, before he is entitled to the relief he asks, that ho should have shown himself a creditor at the time of the commission of the fraudulent act from which he seeks to obtain relief, and equally true that a judgment in accordance with the order here appealed from would not be justified in the one case more than in the other.
But might we not modify the order for judgment in respect to the objection above mentioned, and permit it to stand as to the remainder ? There is no doubt that the statute would authorize such a course, but we prefer not to pursue it in this case. We could not do so without first deciding the question of property hereinbefore mooted, and about which we have purposely abstained from giving an opinion, without further argument. Moreover, the person most affected by a judgment against the Defendants in this action, is a married woman, resident of another State, who asks in any event to be permitted to amend the answer, so as to put in issue matters before passed without denial. It is true that a joint answer for both the Defendants was put in by the same attorney, but as she may never have been consulted even with regard to her answer, there is abundant reason why she should not be irrevocably bound by it, as would be the result were we to modify the order, as suggested.
The order for judgment must be reversed.