Dillon, J.
The testimony shows that the land conveyed by Josina, to the children, was given to her prior to any indebtedness of her husband to Greene and Weare or other persons, by two of her sons, viz., Jeptha and Henry Yan Metre. These sons are middle aged men, and none of the money with which they acquired the land they caused to be conveyed to their mother, was derived from either her or their father. It was undeniably their own; and their gift to their mother was unquestionably made from the best of motives. Two of the conveyances from the mother, now sought to be set aside, were to the wives of the said Jeptha and Henry. The other was made by the mother to a minor son.
The material facts may be briefly recapitulated thus:
1.. In 1857, the husband of the said Josina was indebted on Ms own account to Greene & Weare, in the sum of $955.66, and the said Josina joined with her husband, and as his surety, in a note to Greene & Weare, for that amount, which note was secured by a mortgage upon lands other than those now in controversy.
2. In 1858, Josina made to her son and daughters-in-law voluntary conveyances of the lands now in question for the consideration of natural love and affection. We doubt whether it is established that there was a valuable consideration for the conveyances to the daughters-in-law, although the learned judge below was of that opinion.
8. These voluntary grantees received their deeds in good faith and without any knowledge of the outstanding note in favor of Greene & Weare.
4. In 1859, Josina joined with her husband as his surety, in making three notes in the place of the old one, which was surrendered, and, to secure such new notes, gave a mortgage on the lands deeded the year before to her son and daughters-in-law.
[403]*403“ The plaintiff’s assignor (Weare) knowing,” as the District Court found, “ at the time he received such new notes and mortgage, that these conveyances had been made.” We are satisfied that Weare had constructive if not actual notice of these conveyances.
5. The plaintiff took the note of Weare after it was due and subject to all equities.
Assuming these to be the facts, and the evidence certainly warrants us in thus regarding them, we are of opinion that the District Court correctly decided in favor of the validity of the conveyances to the children.
The subject of voluntary conveyances in some of its aspects was quite fully considered by this court in the case of Gardner v. Cole (21 Iowa, 205), to which we now refer.
1. voluntary purchaser notice. Where the voluntary conveyance is made in good faith, and the subsequent purchaser or incumbrancer has notice of it, he cannot defeat it. In this case the voluntary conveyances were made m good faith, and the rights of the grantees thereunder will be protected unless those conveyances were, as to creditors of the grantor, constructively or legally fraudulent. Did those conveyances operate to defeat any legal or equitable rights on the part of Greene & Weare, the only creditors claimed or shown to exist ?
2. Husband peSonSua“UltyWhat were the relations and rights of the parties in 1858, when the mother conveyed to the children ? Greene & Weare held the note of the husband signed hy the said Josina as his surety. On this note, it is settled by the decisions of this court, she was not personally liable. Jones v. Crosthwaite, 17 Iowa, 393; Patton v. Kinsman, Id. 429; Johnson Co. v. Rugg, 18 Id. 138; Wolf v. Van Metre, 19 Id. 134. Nor could her general property be reached to pay the same. This note was secured on other lands, and these, even if [404]*404they belonged to the wife and she was surety only, would be liable to be subjected to the payment of the note. But the holders of the note had no legal or equitable claim on the land of the wife not mortgaged. They had no obligation which they could enforce as of right against the land now in controversy.
In conveying it, the mother did not impair or affect any legal or equitable rights of Greene & Weare. The rights of the children were acquired at the time they received their conveyances from Josina. What she conveyed to them was property on which Greene & W eare had no legal or equitable claim, property which they could in no court ask to be subjected to the payment of their debt. Therefore the voluntary conveyances did not operate to defraud Greene and Weare’of any rights.
3_suffering judgment. The next year the mother renewed the note of the husband, and in 1862 she suffered judgment by default to Pass there01Ql against her. Now, as between plaintilf who recovered this judgment, and Josina who suffered a recovery which she might have avoided, this judgment is conclusive, and she cannot, to avoid the effect of that judgment, now plead her coverture. This was determined in this case on the other appeal (19 Iowa, 134).
4. — voiunancef011vey But to hold that the suffering of such a recovery against her, will defeat the rights of the children under their conveyances previously obtained, would, as it seems to me, be most unjust. The children took their deeds in good faith without knowledge of Green & Weare’s debt.
Weare took the new notes in 1859, with knowledge, either actual or constructive, of the conveyances to the children, and surrendered the security which he held on other lands. Now what equity has he or his assignee to turn around and claim priority over the children ? To [405]*405subject tbeir property to pay his judgment ? None whatever.
In my opinion, the bona fide voluntary grantees of the mother may, notwithstanding the judgment of 1862, to which they were not parties, insist upon the truth, which is, that in 1858, at the time they received their deeds, their grantor, the said Josina, did not, in law or equity, owe the said Greene and Weare, and hence they were not defrauded by her conveyances.
In unison with these views, and harmonizing with this result, are the authorities.
It is the legal or equitable rights of creditors which the statute of 13th Elizabeth intends to protect. Its design is to prevent a debtor from voluntarily withdrawing his property from the satisfaction of the claims of his creditors.
e. — eimracconveyed. In England, the rule would seem to be, “that to make a voluntary conveyance void as to creditors, either existing or subsequent, it is indispensable that it should transfer property liable to be taken in execution.” Will. Eq. 237; Story Eq. §§ 366-368; Atherley, 220; Nob. on Fraudulent Conv. 421. But, in this country, it has been frequently, and it would appear more reasonably held, that if the property transferred by the debtor be such as could be reached by the creditor, through the act of a court of equity, though it could not be seized on execution at law, a voluntary conveyance of such property to the prejudice of creditors would be void. Will. Eq. 238, and authorities cited. But where the property voluntarily transferred was that upon which the creditors had no claim, either at law or in equity, that is, was property which the creditor would have no right
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Dillon, J.
The testimony shows that the land conveyed by Josina, to the children, was given to her prior to any indebtedness of her husband to Greene and Weare or other persons, by two of her sons, viz., Jeptha and Henry Yan Metre. These sons are middle aged men, and none of the money with which they acquired the land they caused to be conveyed to their mother, was derived from either her or their father. It was undeniably their own; and their gift to their mother was unquestionably made from the best of motives. Two of the conveyances from the mother, now sought to be set aside, were to the wives of the said Jeptha and Henry. The other was made by the mother to a minor son.
The material facts may be briefly recapitulated thus:
1.. In 1857, the husband of the said Josina was indebted on Ms own account to Greene & Weare, in the sum of $955.66, and the said Josina joined with her husband, and as his surety, in a note to Greene & Weare, for that amount, which note was secured by a mortgage upon lands other than those now in controversy.
2. In 1858, Josina made to her son and daughters-in-law voluntary conveyances of the lands now in question for the consideration of natural love and affection. We doubt whether it is established that there was a valuable consideration for the conveyances to the daughters-in-law, although the learned judge below was of that opinion.
8. These voluntary grantees received their deeds in good faith and without any knowledge of the outstanding note in favor of Greene & Weare.
4. In 1859, Josina joined with her husband as his surety, in making three notes in the place of the old one, which was surrendered, and, to secure such new notes, gave a mortgage on the lands deeded the year before to her son and daughters-in-law.
[403]*403“ The plaintiff’s assignor (Weare) knowing,” as the District Court found, “ at the time he received such new notes and mortgage, that these conveyances had been made.” We are satisfied that Weare had constructive if not actual notice of these conveyances.
5. The plaintiff took the note of Weare after it was due and subject to all equities.
Assuming these to be the facts, and the evidence certainly warrants us in thus regarding them, we are of opinion that the District Court correctly decided in favor of the validity of the conveyances to the children.
The subject of voluntary conveyances in some of its aspects was quite fully considered by this court in the case of Gardner v. Cole (21 Iowa, 205), to which we now refer.
1. voluntary purchaser notice. Where the voluntary conveyance is made in good faith, and the subsequent purchaser or incumbrancer has notice of it, he cannot defeat it. In this case the voluntary conveyances were made m good faith, and the rights of the grantees thereunder will be protected unless those conveyances were, as to creditors of the grantor, constructively or legally fraudulent. Did those conveyances operate to defeat any legal or equitable rights on the part of Greene & Weare, the only creditors claimed or shown to exist ?
2. Husband peSonSua“UltyWhat were the relations and rights of the parties in 1858, when the mother conveyed to the children ? Greene & Weare held the note of the husband signed hy the said Josina as his surety. On this note, it is settled by the decisions of this court, she was not personally liable. Jones v. Crosthwaite, 17 Iowa, 393; Patton v. Kinsman, Id. 429; Johnson Co. v. Rugg, 18 Id. 138; Wolf v. Van Metre, 19 Id. 134. Nor could her general property be reached to pay the same. This note was secured on other lands, and these, even if [404]*404they belonged to the wife and she was surety only, would be liable to be subjected to the payment of the note. But the holders of the note had no legal or equitable claim on the land of the wife not mortgaged. They had no obligation which they could enforce as of right against the land now in controversy.
In conveying it, the mother did not impair or affect any legal or equitable rights of Greene & Weare. The rights of the children were acquired at the time they received their conveyances from Josina. What she conveyed to them was property on which Greene & W eare had no legal or equitable claim, property which they could in no court ask to be subjected to the payment of their debt. Therefore the voluntary conveyances did not operate to defraud Greene and Weare’of any rights.
3_suffering judgment. The next year the mother renewed the note of the husband, and in 1862 she suffered judgment by default to Pass there01Ql against her. Now, as between plaintilf who recovered this judgment, and Josina who suffered a recovery which she might have avoided, this judgment is conclusive, and she cannot, to avoid the effect of that judgment, now plead her coverture. This was determined in this case on the other appeal (19 Iowa, 134).
4. — voiunancef011vey But to hold that the suffering of such a recovery against her, will defeat the rights of the children under their conveyances previously obtained, would, as it seems to me, be most unjust. The children took their deeds in good faith without knowledge of Green & Weare’s debt.
Weare took the new notes in 1859, with knowledge, either actual or constructive, of the conveyances to the children, and surrendered the security which he held on other lands. Now what equity has he or his assignee to turn around and claim priority over the children ? To [405]*405subject tbeir property to pay his judgment ? None whatever.
In my opinion, the bona fide voluntary grantees of the mother may, notwithstanding the judgment of 1862, to which they were not parties, insist upon the truth, which is, that in 1858, at the time they received their deeds, their grantor, the said Josina, did not, in law or equity, owe the said Greene and Weare, and hence they were not defrauded by her conveyances.
In unison with these views, and harmonizing with this result, are the authorities.
It is the legal or equitable rights of creditors which the statute of 13th Elizabeth intends to protect. Its design is to prevent a debtor from voluntarily withdrawing his property from the satisfaction of the claims of his creditors.
e. — eimracconveyed. In England, the rule would seem to be, “that to make a voluntary conveyance void as to creditors, either existing or subsequent, it is indispensable that it should transfer property liable to be taken in execution.” Will. Eq. 237; Story Eq. §§ 366-368; Atherley, 220; Nob. on Fraudulent Conv. 421. But, in this country, it has been frequently, and it would appear more reasonably held, that if the property transferred by the debtor be such as could be reached by the creditor, through the act of a court of equity, though it could not be seized on execution at law, a voluntary conveyance of such property to the prejudice of creditors would be void. Will. Eq. 238, and authorities cited. But where the property voluntarily transferred was that upon which the creditors had no claim, either at law or in equity, that is, was property which the creditor would have no right to call upon either court to apply toward his debt, it cannot be predicated of the transfer of such property, that it was fraudulent, or that it breaks in upon the object or policy of the 13th Elizabeth.
[406]*406And we further hold, that the suffering of judgment by the grantor, in 1862, upon a note given in 1859, does not, under the circumstances of this case, so relate back to the alleged or apparent indebtedness of 1857, as to defeat rights which were lona fde acquired by the grantees of the wife in 1858.
In the conclusion that the judgment must be affirmed, all the members of the court concur. But Justices Wright and Cole base their concurrence largely upon the fact, that for the note of 1857 Greene and Weare held independent security which they released in 1859, after the rights of the children had in good faith been acquired, and after Weare had constructive if not actual notice of these rights.
Aside from this element in the case, they are not prepared to say but that the judgment of 1862 (though upon a note given in 1859) did so relate back to the note of 1857, as conclusively to determine the binding force and validityrnf that note, not only between the parties to that judgment, but also as to the voluntary grantees of the wife. The decree below is accordingly
Affirmed.