concurring in part and dissenting in part.
In this case, the majority requires the transferees of two fraudulent money transfers to repay an attacking creditor personally. This requirement is imposed even though the transferees had restored the money over 22 months before the suit was filed. I do not believe that Code § 55-80 authorizes the imposition of this penalty.
The evidence indicates that on or about December 23, 1988, Floyd M. Gibbs, Sr. (the debtor), endorsed over two $10,000 checks payable to him, one to Henrietta Price and one to Steven A. Gibbs (Gibbs). Shortly thereafter, Price deposited her check in a newly created bank account, and returned $6,750 of that amount in cash to the debtor, as evidenced by three canceled checks drawn on that account and payable to cash on January 3,11, and 13, 1989.
Within a month of Price’s receipt of the check, at the debtor’s request and in payment of his debts, she issued the following checks on that account: $36.95 for health insurance on December 27, 1988; $3,000 for attorney’s fees on January 3, 1989; and $17 for cable service on January 10, 1989. Although Price testified that all of the $10,000 was either returned to the debtor or used to pay his debts, she did not show how the balance of $196.05 was expended.
Gibbs deposited the check endorsed to him in a bank account he shared with his wife. Shortly thereafter, Gibbs testified that he returned $1,630 in cash to the debtor, as evidenced by two checks payable to cash dated December 30, 1988, and January 4, 1989. Gibbs also produced a canceled check for $2,428.75 dated January 3, 1989, issued at the debtor’s request to pay the debtor’s credit card bill. Gibbs admitted that he used the remaining $5,971.25 for his own purpose.
Hawkins filed this suit to set aside both $10,000 transfers on November 30, 1990, over 22 months after the transferees had made the above payments. A suit to set aside a fraudulent conveyance seeks to subject what was formerly the debtor’s property to the claims of his creditors. 1 Garrard Glenn, Fraudulent Conveyances and Preferences § 54, at 75-76 (rev. ed. 1940). If the property transferred is no longer *39available to be subjected to those claims, the fraudulent grantee may be required to pay its value to the plaintiff. 1 id. § 239, at 415.
However, if the transferee restores the property to the debtor prior to the creditor’s “attack,” the transferee is not liable for having participated in the fraudulent conveyance. 1 id. § 57, at 77-78. As Glenn notes in a later section of his treatise, if the transferee “had returned [the property] to the debtor before the creditor’s attack, that would have been a complete defense, as we have seen.” 1 id. § 239, at 415 (emphasis added).
The majority holds that the defense is inapplicable here because the transferees returned the property after Hawkins began his “attack.” According to the majority, Hawkins’s “attack” began when he filed his garnishment proceedings against the debtor’s bank accounts, a few weeks before the transfers.
I believe the majority misinterprets the meaning of the creditor’s “attack” in this context. In my view, the word “attack” describes the creditor’s suit to set aside the transfer and subject the property, or its proceeds, to his judgment. This is quite evidently Glenn’s concept of the “attack” as revealed clearly in the section title leading to his explication of the rationale for this defense: “There Must be a Transfer, Which the Creditor Attacks as Such,” 1 id. § 55, at 76.
Thus, unlike the majority, I conclude that this defense is available to transferees who surrender the property to the debtor at any time before the creditor files suit to set aside the transfer. This conclusion is consistent with Glenn’s use of the word “attack” in the context of this defense. It is also consistent with Glenn’s observation that a fraudulent conveyance is a voidable, not a void, transaction, and that a creditor “can get the benefit of his right [to attack the conveyance] only by asserting it in the proper manner,” 1 id. § 111, at 220.
The remaining question is whether Price and Gibbs should be required to pay Hawkins the amounts they paid the debtor’s other creditors before this suit was filed. These payments reduced those creditors’ claims, thereby increasing Hawkins’s potential recovery from the debtor’s remaining assets. In my judgment, these payments have an effect on the debtor’s estate similar to a return of the property to the debtor; in each instance, the net value of the estate is increased by the restorations of those sums that had been fraudulently transferred from the estate. Thus, I believe that the transferees should not be required to apply their own funds in a second payment of the debtor’s debts.
For these reasons, I would reverse that part of the judgment requiring Price and Gibbs to pay Hawkins those sums that they (1) *40had returned to the debtor, or (2) used in payment of his other debts before this suit was filed. I would affirm the judgment for those sums that were not shown to have been so applied.