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LEBOVITZ v. MUDD6/22/1987
out of reach of the plaintiff should she recover in a pending
As noted above, the complaints here allege the conveyances rendered respondent L.U.C.A. B. insolvent and
B. Nulla Bona Return
The circuit court alternatively held one must reduce a debt to judgment and obtain a nulla bona return as a prerequisite to bringing a fraudulent conveyance action.
However, the new South Carolina Rules of Civil Procedure have modified prior procedure relating to joinder of claims. Rule 18(b), SCRCP, provides:
Whenever a claim is one heretofore cognizable only
after another claim has been prosecuted to a conclusion,
the two claims may be joined in a single action . . . In
particular, a plaintiff may state a claim for money and a
claim to have set aside a conveyance fraudulent as to
him, without first having obtained a judgment establishing
the claim for money. [Emphasis added.]
Accordingly, the fraudulent conveyances causes of action properly were included in the complaint and the circuit court erred in its holding. Even under prior practice, in a fraudulent conveyance action based upon actual fraud, as here, the creditor need not reduce a debt to judgment and the claim could be joined with other causes of action. See Dennis v. McKnight, supra; Temple v. Montgomery, 157 S.C. 85, 153 S.E. 640 (1930); Miller v. Hughes, 33 S.C. 530, 12 S.E. 419 (1890). Cf. Dillon Tire Service, Inc. v. Pope, 243 S.C. 293, 133 S.E.2d 813 (1963) [holding that where conveyance attacked on ground of constructive fraud, creditor must first have debt reduced to judgment].
II. LIS PENDENS
The circuit court ordered cancellation of the notices of lis pendens because the underlying fraud claims did not relate to the same property against which the notices were filed. The lis pendens statute, S.C. Code Ann. § 15-11-10 (1976), contains no such limitation. Rather, it provides that a notice
In North Carolina Nat'l Bank v. Evans, 296 N.C. 374, 250 S.E.2d 231 (1979) the court construed a lis pendens statute similar to § 15-11-10 and concluded a notice properly was filed against property which was the subject of a fraudulent conveyance action:
ny action seeking to set aside a conveyance of real
property as fraudulent `directly assails the validity of
such conveyance and necessarily involves the title.
Hence the filing of notice under lis pendens statute is
essential to give constructive notice to those who are not
directly interested in the proceedings.' Quoting Whitehurst
v. Abbott, 225 N.C. 1, 33 S.E.2d 129, 133 (1945).
250 S.E.2d at 236, See also Coleman v. Law, 170 Ga. 906, 154 S.E. 445, (1930); 51 Am. Jur.2d Lis Pendens § 21 (1970).
We agree. An action to set aside a fraudulent conveyance is one "affecting title to real property" and notices of lis pendens properly were filed against the subject property. Accordingly, the notices of lis pendens are ordered reinstated.
Reversed and remanded.
NESS, C.J., and GREGORY, HARWELL and FINNEY, JJ., concur.
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