after stating the case as above,proceeded:
1. The first ground of demurrer is based upon the fact, as appears in the complaint, that the debt of the plaintiff was not contracted until some time after the deed from James C. Cozart to his son-in-law was executed, and the deed ould not, therefore, be embraced by the statute of frauds, The Code, § 1545, which makes void fraudulent gifts, grants, etc., “only as against that person, his heirs, executors and assigns, whose •debts, accounts, damages, penalties and forfeitures, by such fraudulent or covinous devices and practices aforesaid, are, shall or might be in anywise disturbed, hindered, delayed or defrauded,” etc., and it is insisted that a debt which had no existence when the deed was made could not be so disturbed, hindered, etc. We apprehend that if a deed be made, showing upon its face a full valuable consideration, but upon the secret trust that the vendee shall not pay anything therefor, but shall hold the same in contemplation of insolvency for the benefit of the vendor, so as to protect and shield the property against any debts- that he may owe at the time, or any liabilities that he may subsequently incur, such a deed would be void as to all persons whose claims “are, shall or might be” defrauded thereby. As to pre-existing debts such *180a deed would be ipso facto fraudulent and void. Morgan v. McLelland, 8 Dev., 82.
“ A voluntary conveyance is necessarily and in law fraudulent when opposed to the cláim of a prior creditor as against subsequent creditors, whether fraudulent or not, depends upon the bonafides of the transaction, and the question is one of intent, to be passed upon by the jury. O’Daniel v. Crawford, 4 Dev., 197, in which the subject of fraudulent conveyances is elaborately discussed in concurring opinions by RuffiN, C. J., and GastoN and Dakiel, J.J.
The first ground of demurrer cannot be sustained.
2. The second ground of demurrer is that there is no allegation of any clause of defeasance, and the deed being upon good consideration, the grantor had no interest in the land which could be enforced by him or his subsequent creditors. If the conveyance was made upon a fraudulent trust, of course the Court would not aid the grantor in¡its enforcement, but the deed was void as to creditors, and no clause of defeasance was necessary as to them, and the second ground of demurrer cannot be sustained.
3. The third ground of demurrer cannot be sustained. The plaintiff’s action rests upon the allegation that the deed of James C. Cozart to his son-in-law, Lunsford, was fraudulent and void as against creditors, and neither Lunsford nor W. W. Cozart, the trustee, acquired any title as against creditors.
4. The fourth ground of demurrer is based upon the assumption that the deed could only be fraudulent and void as against creditors existing at the time of the deed; as we have seen, this is a misapprehension, and the fourth ground of demurrer cannot be sustained.
5. It is alleged in the complaint, and the demurrer admits, that the personal property of the decedent was insufficient to pay his debts, and that a sale of his real estate was necessary for that purpose. The statute, The Code, § 1436, makes it *181the duty of the administrator, without undue delay, to apply to the Court for license to sell the real estate, etc., and the Court, at the instance of the creditor, may 'compel him to perform this duty. Pelletier v. Saunders, 67 N. C., 261. For the purposes of demurrer, it is admitted that the deed of the decedent was made with the intent to hinder, delay and defraud the then existing and subsequent creditors of the grantor, and that the defendant administrator was a party to this fraudulent transaction; that he had filed his final account, leaving debts of the decedent unpaid, without selling, or applying to the Court for license to sell' the real estate of his intestate; and from the facts fully appearing in the complaint, and admitted by the demurrer, the administrator had designedly failed and neglected to perform his duty and apply to the Court for license to sell the land fraudulently conveyed by the deed of the intestate, under and through which he and the other defendants are beneficiaries, and from the facts appearing in the complaint, no demand was necessary. Before the real estate of a decedent can be sold to pay debts, either upon the application of an administrator or at the instance of a creditor, under §§ 1448 or 1474 of The Code, it must be made to appear that the personal estate has been exhausted, or is insufficient to pay the debts of the decedent, and this may be, and usually is, ascertained by an account. This is well settled, as will appear by reference to the present case when before this Court on a former appeal, 107 N. C., 695, and cases there cited. And the fifth ground of demurrer cannot be sustained.
There is error, and the demurrer must be overruled. Let this be certified, to the end that the defendants may answer, or not, as they may be advised.
Error.