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4924 019 309 5
FRAUDULENT CONVEYANCES,

A TREATISE

UPON CONVEYANCES MADE BY DEBTORS
TO DEFRAUD CREDITORS.

CONTAINING REFERENCES TO ALL THE CASES

BOTH

ENGLISH AND AMERICAN.

BY a
ear
ORLANDO F BUMP,

.
COUNSELLOR AT LAW.

NEW YORK:
BAKER, VOORHIS & CO., LAW PUBLISHERS,

66 Nassau STREET.

1872.
84/6)

Entered, according to Act of Congress, in the year one thousand eight hundred and seventy-two, by
ORLANDO F. BUMP,
In the Office of the Librarian of Congress, at Washington.

Baker & Gonvwin, PRINTERS,
Printing House Square.
PREFACE.

Tux subject which is considered and treated in this work
is one that has never been made the object of a special treatise
or discussed in the light of a thorough and exhaustive collec-
tion of the authorities. It is more than seventy years since the
last edition of Roberts on Fraudulent Conveyances was printed.
May’s Voluntary and Fraudulent Conveyances and Hunt’s
Fraudulent Conveyances are of a later date. These works,
however, treat of the statute of 27th Eliz. as well as the statute
of 13th Eliz., and are confined to the English cases. It is man-
ifest that the subject of conveyances to defraud creditors is of
sufficient importance to require a separate treatise, and those
who are at all familiar with the subject, or who will take the
trouble to examine this work, will know or see that the Amer-
ican authorities are very numerous and important. This work
is therefore confined to conveyances to defraud creditors, and
contains references to all the cases upon the subject.

The first difficulty to be overcome in such a work arises
from the fact that various statutes have been passed in the
different States. These, however, have been copied in the
main from the statute of 13 Eliz., and that statute has always
been considered as merely declaratory of the common law.
Unity and symmetry has, therefore, been attained by consider-
ing the law of Fraudulent Conveyances as simply a part of the
common law, and as the same in every country where Anglican
law prevails. It is manifest, however, that whether a convey-
ance can defraud creditors is a question that will sometimes
depend upon the condition and character of the remedies
4 PREFACE.

afforded by the various States. It isno part of this work to treat
of local statutes affecting remedies, or relating to any thing else.
Each practitioner is to be presumed to be familiar with the
statutes of his own State. This work simply considers the
subject as it was at common law with the remedies afforded by
the common law. Cases, however, that vary from the common
law have been cited as opposed to the doctrine in the text
merely to warn the practitioner that the text is not applicable
to his particular State, and the apparent conflict of authorities
can sometimes be explained on this ground. The author pre-
ferred, as a rule, to leave such conflict of authority without ex-
planation rather than encumber his work with explanations
which would not interest the profession generally.

But after all the conflicting cases have been eliminated that
depend upon local statutes, there still remain a large number
of opposing authorities, a larger number in fact than can be
found in any other branch of the law. The relation of debtor
and creditor is one that appears to be simple, and to rest simply
upon the duty of common honesty. It is thus a question of
morals, and a question of morals is frequently made a question
of public policy. About forty independent courts are thus
called upon to consider and determine a question of morals and
of public policy. The result is manifest and inevitable. Dif-
ferent minds do and inevitably must reach different conclu-
sions, and the doctrine of each court is the law within its juris-
diction.

A work could have been written covering every point of
the law, and selecting only those cases which were consistent
with the author’s theory of the law. Such a work, however,
would have been merely theoretical, and would have been use-
less and misleading in those States where a contrary doctrine
prevails. To avoid this objection, and render the work practi-
cal, the plan has been adopted of presenting a theory of the
law in the text and citing all the authorities, so that each prac-
titioner can tell at a glance whether any proposition is accepted
in his own State.

The author will also add that he does not expect that his
views will be adopted. Where eminent courts, after careful
discussion, have reached different conclusions, it would be pre-
PREFACE. 5

sumptuous to assert that he has accepted the better opinion,
for he also is fallible. All that he has aimed to do has been to
present a systematic and consistent theory of the law, and to so
arrange and classify the authorities as to unfold that theory.
Conflict was there before he began his investigations, and will
continue after his labors have ceased. All the merit he claims
is simply that of presenting the law in a compact, accessible
shape, and thus lightening the labors of a profession whose
toils are arduous amid the ever increasing multiplication of
reports.

The author takes this opportunity to return his thanks to
his friends for the assistance they have so kindly rendered him
in the preparation of this work. To know that others sympa-
thize with his labors, and to feel that some benefit, no matter
how slight, may be conferred in return, is no inconsiderable
relief to the tediousness of an author’s self-imposed task.

Or.tanpo F. Bump.
Baltimore, Nov. 1st, 1872.
CONTENTS,

CHAPTER I.

History or THE Law or FravpuLent ConvEYANCES....

CHAPTER II.

Waar Constitutes 4 FRAUDULENT CONVEYANCE.......

CHAPTER III.

FRAUDULENT INTENT......... 0000 cece cee cece essence

Bivens or LRA s oc :dsewsecs sos coruceeed cae waesls
CHAPTER V.

POSSESSION sig-bace eG aewaeS KEE RAGSAOR eee
CHAPTER VI.

Wuen Possession 18 FRAUD PER SE.....-.e5 esses eee
CHAPTER VII.

PREFERENCES puss A Seeel Gre eas Ree Nee eaeeins

CHAPTER VIII.

Bona Frpes oF THE TRANSFER....... eee ee reece ees

49
8 CONTENTS.

CHAPTER IX.

CONSIDERATION, .... cece cee cree tc ce eens eee rereeenee 948
CHAPTER X.

Wuat TRANSFERS ARE WITHIN THE STATUTE........--+ 259
“CHAPTER XI.

VotuntTaRy CONVEYANCES... 0. cece cee cece eee ee eeene 279

CHAPTER XII.

NouprtaL SETTLEMENTS ...... ee ccc cece ee eee ewes 805

CHAPTER XIII.

SUBSEQUENT CREDITORS...... 02 cece cece see eee eeeeeee 320

CHAPTER XIV.

ASSIGNMENTS FOR THE BENEFIT OF CREDITORS........+- 333
CHAPTER XV.
ASSIGNMENTS EXACTING RELEASES........eceeceee cece 426

CHAPTER XVI.

How rar A Fravputent TRANSFER IS VOID........... 449

CHAPTER XVII.
Bona Fron Purcrasers

CHAPTER XVIII.
Who sare Oreprrors
OONTENTS. 9

CHAPTER XIX.
INTERWATION AT: LAW oseatciacvece cus oderecscne ai iacesaie Sonia saoela erate 491

CHAPTER XxX.

Executions, JupgMents AnD ATTACHMENTS..........-. 496

CHAPTER XXI.

EXECUTORS DE SON TORT... ... cece cccee cece cee eeceeves 502

CHAPTER XXIV.

Extent oF GRANTEE’S LIABILITY........0eee ee eeeeeees 566

CASES FROM THE YEAR BooKS ........-eececeerceceees 578

Appenpix (Statutes of the various States). ............. 583
TABLE OF CASES.

Abbey v. Bank, 509, 533.

Abbey v. Deyo, 269, 271.

Abbott v. Goodwin, 168, 165.

Abbott v. Hurd, 325.

Abbott v. Tenney, 264, 327, 444.

Abercrombie y. Bradford, 339, 363,
365, 402, 417.

Abney v. Kingsland, 278, 466, 546,
547, 548, 549, 550, 568.

Ackerman y. Cross, 417.

Acraman vy. Corbett, 316, 318.

Acton v. Woodgate, 343.

Acworth v. Kempe, 456.

Adams v. Adams, 246, 253, 325.

Adams v. Blodgett, 338, 394.

Adams v. Broughton, 242, 444,

“ve v. Davidson, 94, 381, 521,
549.

Adams v. Foley, 545.

Adams v. Hallett, 486.

Adams v. Moseley, 498.

Adams v. Paige, 507.

Adams v. Slater, 79, 81.

Adams v. Wheeler, 88, 191, 218, 223,
251, 256.

Adams v. Woods, 396.

Addington v. Etheridge, 163.

Adler v. Claflin, 165.

Adler v. Fenton, 505.

Adlum y. Yard, 413, 458.

Agricultural Bank vy. Dorsey, 477,
482.

Alabama Ins, Co. v. Pettuay, 66, 86.

Albany Bank vy. Schermerhorn, 534,
535, 536.

Albee v. Webster, 245, 246, 247, 470.

Albert v. Winn, 367, 398, 481, 432,
438, 472.

Aldrich yv. Earle, 549.

Alexander vy. Deneale, 149, 152.

Alexander v. Gould, 484, 543.

Alexander v. Tams, 275, 510.

Alexander v, Todd, 237, 293.

 

Alexander vy. Young, 220.

Allen v. Allen, 444.

Allen y. Bennett, 95.

Allen v. Brown, 472.

Allen v. Camp, 455, 512, 513.

Allen v. Cowan, 154, 155, 157, 555.

Allen v. Edgarton, 173, 177.

Allen y. Holland, 468.

Allen vy. Kimball, 502.

Allen v. Montgomery R. R. Co., 256,
523.

Allen v. Mower, 444, 529.

Allen v. Smith, 102, 164, 165, 200,
201.

Allen vy. Trustees, 577.

Allen v. Wheeler, 69, 78, 151.

Allen v. White, 529.

Allentown Bank vy. Beck, 196, 197,
212.

Alley v. Connell, 574.

Alston v. Rowles, 485.

Alton v. Harrison, 79, 99, 218.

American Exchange Bank v. Inloes,
394, 415.

American Exchange Bank vy. Webb,
385, 403.

Ames v. Blunt, 433, 459, 567,
568.

Ammon’s Appeal, 293, 329.

Amsden vy. Manchester, 551, 552.

Anderson v. Biddle, 260.

Anderson v. Bradford, 452, 518.

Anderson v. Brooks, 196, 197.

Anderson v. Dunn, 444, 450.

Anderson v. Fuller, 85, 15%, 245,
574.

Anderson v. Hooks, 64, 229, 473.

Anderson v. Maltby, 255, 488.

Anderson v. Rhodus, 443.

Anderson v. Roberts, 475, 476.

Anderson v. Smith, 253.

Anderson v. Tydings, 217, 238, 556.

Andrews v. Durant, 454, 455.
12

Andrews v. Jones, 93, 250, 262, 275,
805, 306, 312.

Andrews v. Ludlow, 405, 436.

Andrews v. Marshall, 455.

Angell v. Draper, 511.

Angell v. Rosenburg, 362, 372, 378,
374, 375, 377, 378, 379, B85, 437,

Angier v. Ash, 461, 543,

Angrave v. Stone, 545, 555.

Ansley v. Carlos, 277.

Anthony v. Wade, 181, 268.

Apharry v. Bodingham, 487.

Apperson v. Ford, 229.

Archer v. Hubbell, 140, 164, 173.

Armington v. Houston, 186.

Armstrong v. Baldock, 193, 195.

Armstrong v. Byrne, 433.

Armstrong y. Fahnestock, 255.

Armstrong y. Tuttle, 163.

Arnett v. Wanett, 286, 290.

Arnold v. Arnold, 252.

Arnold vy. Bell, 288, 293, 304.

Arnot vy. Beadle, 266, 508.

Arthur y. Commercial Bank, 397, 401.
423.

Arundell v. Phipps, 105, 151, 194,
307, 314.

Ash v. Savage, 191.

Ashfield v. Ashfield, 268.

Ashley v. Minnitt, 508.

Ashley v. Robinson, 341.

Ashurst’s Appeal, 452,

Ashurst vy. Given, 271.

Ashurst vy. Martin, 70, 414, 417, 422,
424, 434, 439,

Ashmead v. Hean, 221, 237.

Askew v. Reynolds, 549.

Aspinwall v. Jones, 505.

Athey v. Knotts, 267, 315.

Atkinson v. Jordan, 217, 483.

Atkinson v. Maling, 202, 256.

Atwood v. Impson, 227, 232, 554.

Atwood v. Protection Ins. Co. , 493.

Auburn Bank v. Fitch, 218, 221,

August v. Seeskind, 74, 367, 422,

Austin v. Bell, 400, 401, "405, ‘424, 436,
461.

Austin vy. Brown, 499.

Austin vy. Johnson, 242.

Austin v. Winston, 447,

Averill vy. Loucks, '346, 383, 384, 567.

Avery v. Avery, 444,

Avery v. Street, 91, 94, 212.

Ayer v. Bartlett, 185, 186, 187, 261,
322.

Ayres v. Husted, 86, 471.

Ayres v. Moore, 152, 231,

 

TABLE OF CASES.

Babb y. Clemson, 73, 81, 153, 178,
548, 549.

Babcock v. Booth, 444.

Babcock y. Eckler, 70, 281, 283, 286,
291, 314, 560.

Bacon v. Scannell, 210.

Bachemin v. Chaperon, 161.

Bachman v. Sepulveda, 522, 526.

Backhouse v. Jett, 504, 568, 571.

Badger v. Story, 229, 488, 543.

Badlam vy. Tucker, 190, 202, 203, 256.

Bagg v. Jerome, 69.

Bailey v. Burton, 85, 88, 515, 520.

Bailey v. Foster, 449.

Bailey v. Harris, 260.

Bailey v. Mills, 361, 398.

Bailey v. Nichol, 527.

Bailey v. Rider, 526.

Bainton yv. Ward, 267, 268.

Baird v. Williams, 220.

Baker vy. Bartol, 521, 526,567.

Baker vy. Bibb, 80, 89.

Baker v. Bliss, 478, 482.

Baker v. Gilman, 325, 447, 459, 484,
489.

Baker v. Welch, 287, 539.

Baldwin v. Buckland, 363, 875, 376,
380.

Baldwin v. Campfield, 446.

Baldwin v. Cawthorne, 446, 450.

Baldwin vy. Jackson, 501.

Baldwin v. Johnston, 266.

Baldwin v. Peet, 341, 857, 358, 364,
404, 417, 418, "422, 424,

Baldwin v. Tuttle, 457.

Baldwin v. Tynes, 354,

Ball v. Burnford, 307.

Ball v. Loomis, 380, 548.

Ballantyne v. Beall, 515, 521, 523, 534.

Balto & Ohio R. R. Co, y. Glenn,
401, 408, 491.

Balto. & Ohio R. R. Co. v. Hoge,
493, 542, 552.

Bamford v. Baron, 165, 338.

Bancroft vy. Blizzard, 363, 364,

Banfield y. Whipple, 69, 221, 228.

Bangor y, Warren, 825, 490,

Bank vy. Ballard, 263, 532.

Bank vy. Burke, 444, 534,

Bank y. Cox, 387, 398, 404, 423, 488,
435, 440.

Bank ° v. Ennis, 325.

Bank vy, Fink, ‘92, 385, 556.

Bank vy. Gettinger, 495,

Bank y. Gourdon, 82, 160.

Bank y. Jacobs, 84.

Bank y. Marchand, 805, 307, 310, 490.
TABLE OF CASES.

Bank v. McDade, 196, 251.

Bank y. Mitchell, 252, 814, 315.

Bank v. Planters Bank, 220,

Bank v. Talcott, 348, 349, 368, 385,
386, 387, 402.

Bank y, Willard, 256.

Bank (of Alexandria) vy. Patton, 322,
825, 829.

Bank’ of Georgia vy. Higginbottom,
88.

Bank of U. 8S. v. Brown, 814, 315,
316, 317.

Bank of U. 8. v. Housmann, 82, 92,
212, 825, 326, 555.

Bank of U. S. v. Lee, 314, 316.

Bank of Utica v. Finch, 526.

Banks v. Brown, 555, 556.

Banks v. Clapp, 396, 397.

Banning v. Sibley, 336, 405, 418.

Barber y. Mitchell, 500.

Barbour v. Everson, 350.

Barcroft v. Snodgrass, 348, 355, 391
397, 412, 567.

Barker Vv. French, 83, 85.

Barker v. Hall, 165.

Barker v. Woods, 315.

Barley v. Tipton, 455.

Barling v. Bishopp, 321, 822, 324,
486.

Barnard vy. Eaton, 163.

Barnard v. Ford, 293, 315.

Barnard v. Moore, 256.

Barnard y. Sutton, 446.

Barncord v. Kuhn, 317.

Barnes v. Billington, 498.

Barnett v. Fergus, 164, 472.

Barney v. Brown, 205.

Barney v. Griffin, 405, 412, 423.

Barnitz v. Rice, 437.

Barnum v. Hempstead, 383, 384, 402.

Barnwell v. Ward, 565.

Barr v. Hatch, 79, 81, 85, 92, 161,
212, 219, 220, 221, 228, 226, 245,
463, 488.

Barr v. Reitz, 171, 180, 183, 202.

Barrack vy. McCulloch, 264, 266.

Barrett v. Pritchard, 186.

Barrett v. Reed, 433, 535.

Barrow v. Bailey, 62, 63, 80, 82, 87,
97, 230, 238, 247, 512, 527, 565.
Barrow v. Paxton, 102, 187, 191.

Bartels vy. Harris, 70, 223,
251.

Bartlett v. Blake, 151 261, 562.

Bartlett v. Williams, 192, 208.

Barton v. Bolton, 491.

Barton v. Bryant, 522, 524, 534.

>

242,

 

13

Barton vy. Morris, 443.

Barton v. Vanheythuysen, 454, 457.

Basey v. Daniel, 92, 98.

Bastein v. Dougherty, 237,

Batchelder v. Carter, 197.

Bate v. Graham, 520.

Bates v. Ableman, 875, 404, 548, 548,
553.

Bates v. Carter, 196.

Bates v. Coe, 218.

Battersbee v. Farrington, 287, 311.

Baxter v. Sewall, 286, 480, 556, 558.

ee v. Wheeler, 402.

Bay v. Cook, 87, 153, 265, 266, 286,
485, 509, 517.

Bay Iron Co. v. Goodall, 511, 526, 527.

Bayard v. Hoffman, 264, 290.

Bayless v. Elean, 445.

Baylor v. Smithers, 186, 261.

Bayne v. Wylie, 440.

Bayze v. Daniel, 98.

Beach vy. Baldwin, 258, 272.

Beach vy. Bestor, 404.

Beach v. Catlin, 582, 545,

Beach v. Viles, 3387,

Beach v. White, 314, 327, 328, 329,
514, 522.

Beale v. Hall, 444, 447.

Beall v. Williamson, 445,

Beals v. Guernsay, 102, 187, 152, 232.

Beamish v. Conant, 380.

Bean v. Brackett, 275,

Bean v. Smith, 79, 81, 98, 264, 265,
475, 476, 509, 510, "511, 558, 559,
571, 572, 578, 574,

Beans v. Bullitt, 336.

Beardsley Scythe Co. v. Foster, 522,
524,

Bear’s Estate, 226.

Beattie v. Robins, 153.

Beatty v. Davis, 395, 408, 420.

Beaumont v. Crane, 261.

Beaumont v. Thorp, 312.

Bebb v. Preston, 396, 397.

Beck v. Burdett, 405, 406, 514, 535.

Beck v. Parker, 363. .

Beeker vy. Smith, 261.

Beckman v. Secrest, 293.

Bedell v. Chase, 235, 553.

Beeckman vy. Montgomery, 322, 324.

Beekman’s Appeal, 462.

Beekman v. Bond, 142, 187.

Beeler v. Bullitt, 79, 80, 81, 85, 277.

Beers v. Botsford, 243.

Beers v. Dawson, 155.

Beers v. Lyons, 378, 395.

Beirne v. Patton, 493, 495.
14

Belford v. Crane, 258, 266, 272, 322,
467, 609, 529.

Belk v. Massey, 161, 562.

Belknap v. Hastings, 513.

Belknap v. Wendell, 554.

Bell v. Fleming, 256.

Bell v. Hill, 559.

Bell v. Greenwood, 253.

Bellamy v. Bellamy, 344, 408.

Bellows v. Partridge, 399, 414, 419.

Bellows v. Wells, 200.

Belmont v. Lane, 66,

Belt v. Raguet, 230, 280, 532, 551,
552, 557,

Benedict. v. Huntington, 389, 411,

414.
Benedict v. Parmenter, 494.
Benford v. Schell, 200, 202.
Benham vy. Carey, 551.
Benjamin v. Smith, 497, 499.
Bennett v. Bedford Bank, 286, 325.
Bennett v. McGuire, 280, 293, 523.
Bennett v. Musgrove, 508, 519, 565.
Bennett v. Union Bank, 88, 89.
Benning v. Nelson, 341, 364, 545.
Bentley v. Goodwin, 487.
Bentley v. Harris, 481.
Bentley v. Whittemore, 491.
Benton v. Jones, 84, 287, 325.

Benton v. Thornhill, 136, 151, 163,

217, 228.
Bernal v. Hovious, 200.
Berry, Ex parte, 252.
Berry v. Cutts, 366, 395.
Berry v. Hayden, 369, 417, 418.
Berry v. Matthews, 371, 417.
Berry v. Riley, 402, 405.
Berry v. Smith, 496, 497, 498, 499.
Berryman v. Sullivan, 515.
Bertrand v. Elder, 266, 300, 509.
Bessy v. Windham, 452.
Bethel v. Stanhope, 245, 444,
Betts v. Union Bank, 308, 555, 558,
Beverly’s Case, 274,
Bevins v. Dunham, 257.
Bholen vy. Cleaveland, 351, 493.
Bibb v. Baker, 79, 98, 450, 572.
Bickerstaff v. Doub, 261, 456.
Bickley v. Norris, 264, 277, 511.
Bigelow v. Andress, 513.
Bigelow vy. Ayrault, 565, 574.
Bigelow v. Huntley, 186.
Bigelow v. Stringer, 70, 89.
Bilhofer v. Heubach, 516.
Billings v. Billings, 411, 417, 413,
Billingley v. Bunce, 163.
Billingsley v. White, 169, 174, 176.

 

TABLE OF CASES.

Bilsborow v. Titus, 250.

Bingham v. Young, 498.

Birchell vy. Strauss, 347,

Bird v. Sitken, 221.

Birely v. Staley, 295, 298, 517, 521,
522, 556.

Birge’ v. Nock, 464.

Birtch v. Elliott, 577.

Bishop v. Catlin, 395, 573, 576.

Bishop v. Halsey, 406, 520.

Bishop v. Hubbard, 269.

Bishop vy. Warner, 163.

Bissell v. Hopkins, 139, 152.

Black vy. Cadwell, 98, 304, 488.

Black v. Nease, 319, 321.

Black v. Sanders, 283, 295, 297.

Black v. Weathers, 349.

Blackman v. Wheaton, 59, 403.

Blair v. Alston, 543.

Blair v. Bass, 84, 229.

Blaisdell v. Cowell, 96, 559.

Blaisdell v. Ladd, 501.

Blake vy. Faulkner, 371.

Blake v. Graves, 208, 550.

Blake v. Howard, 545.

Blake v. Jones, 315, 321.

blake v. White, 544, 545, 549.

Blake v. Williams, 476.

Blakeney v. Kirkeley, 296, 298.

Blakey’s Appeal, 218.

Blanchard v. Ingersoll, 318.

Blantin v. Whittaker, 532.

Blanton v. Taylor, 575.

Bleakley’s Appeal, 572.

Blenkinsopp v. Blenkinsopp, 486,
507, 508.

Blocker v. Burness, 152.

Blodgett v. Chaplin, 80, 89, 98.

Blood v. Palmer, 186, 256, 260.

Blount v. Doughty, 238, 304.

Blow y. Gage, 280, 886, 390, 394,
423, 528, 529, 562.

Blow v. Maynard, 79, 86, 311, 314,
318, 571.

Blue y. Penniston, 490, 542, 551.

Boardman vy. Cushing, 84.

Boardman v. Halliday, 216, 365, 370,
383, 384.

Boardman v. Keeler, 197, 275, 500.

Bodine v. Edwards, "266.

Bodley v. Goodrich, 401.

Bogard v. Gardley, ‘99, 152, 160, 167,
290, 821, 322.

Bogert y. Haight, 407, 408, 548.

Bohn v. Headley, 325.

Boies v. Henney, 93, 560.

Boils y. Boils, 486.
TABLE OF CASES.

Bolsford v. Beers, 519.

Bond vy. Seymour, 153, 268,

Bond y. Swearingen, 293,

Bonny v. Griffith, 249, 287, 201.

Boone y. Hall, 520.

Booth y. Bunce, 278, 462, 545,

Booth y. McNair, 368, 414, 417,

Borden v. Sumner, 337,

Borland v. Mayo, 68, 74, 79, 80, 87,
89, 152, 229, 231, 468, 469, 546,
548, 549, 550, 552.

Borland v. Walker, 77, 79, 80, 90, 91,
97, 152, 554, 572.

Born v. Shaw, 493.

Borst v. Corey, 312.

Borst v. Spelman, 287.

Bortrand v. Elder, 285.

Bostwick v. Beizer, 488, 567.

Bostwick vy. Menck, 467, 534, 577.

Boswell v. Green, 251.

Bott v. Smith, 245, 246.

Botts v. Cozine, 275, 825, 329, 539.

Boughslough v. Boughslough, 486.

Boutwell v. McClure, 540.

Bowen v. Bramidge,. 358.

Bowen y. Clark, 163, 354.

Bowen y. Parkhurst, "417, 514.

Bowery Bank Case, 396.

Bowie v. Free, 471.

Bowles v. Graves, 395, 483.

Bowles v. Schoenberger, 86.

Bowman v. Herring, 153.

Bowman v. Houdlette, 98.

Bowman v. McKleroy, 450.

Boyd vy. Brown, 452, 482, 545.

Boyd v. Dunlap, 173, 565, 574.

Boyd v. Hoyt, 523.

Boyd v. Rockport Mills, 493.

Boyden v. Moore, 337, 380, 543.

Boyle v. Rankin, "478.

Boylston v. Carver, 542.

Boynton v. Rawson, 535.

Bozman vy. Draughan, 79, 87, 97, 238,

566.

Brackett v. Wait, 286, 290, 300, 558.

Bradford v. Tappan, 337.
Bradley v. Arnold, 186.
Bradley v. Buford, 322.
Bradley v. Wyndham, 496.
Bradshaw v. Klein, 488, 519.
Bradway’s Estate, 367, 400.
Brady v. Briscoe, 95, 96, 98, 484.
Brady v. Ellison, 447.

Brady v. Haines, 210, 211.
Brahe v. Eldridge, 345.
Brainerd v. Dunning, 389.
Branch Bank vy. Broughton, 497.

15

Branch Bank v. Kinsey, 554.”

Branch Bank y. Robinson, 496.

Brandon y. Cunningham, ‘196,

Brandon vy. Gowring, 509.

Brashear v. West, 347, 352, 371, 483.

Brawn v. Keeler, 169, "180, 188.

Braxton v. Gaines, 189,

Bray v. Hussey, 86, 97.

Breckenridge y. ‘Anderson, 160, 170,
184, 468.

Bredin y. Bredin, 93, 97, 546.

Brett v. Catlin, 545,

Brevard vy. Neely, 343, 850.

Brewer v. Hyndman, 465.

Brewer v. Pitkin, 337.

Brewster v. Bours, 218.

Brewster v. Power, 266, 825.

Brice v. Myers, 98, 286, 288, 302, 577.

Bridge v. Eggleston, 544,

Bridge v. Loeschigk, 98.

Bridgford y. Riddell, 489.

Bridges v. Hindes, 845, 436.

Brietenback v. Dungan, 437.

Briggs v. Mitchell, 72, 314.

Briggs v. Parkman, 163,

Brigham y. Tillinghast, 369, 417, 418.

Brinkerhoff v. Brown, 511, bet, 523.

Brinkerhoff v. Marvin, 257,

Brinley v. Spring, 89, 163, 164, 165,
191, 2038, 204, 242, 554.

Brinton v. Hook, 243, 330.

Briscoe v. Kennedy, 263.

Britt v. Aylett, 446, 470.

Brock v. Headon, 99, 242,

Brodie v. Seagrave, 277.

Brookover v. Hurst, 410, 450, 451..

Brooks v. Caughran, 486, 572.

Brooks vy. Mabury, 339.

Brooks y. Nichols, 404.

Brooks y. Powers, 151.

Brooks yv. Stone, 505.

Brooks v. Wimer, 163.

Broughton v. Broughton, 450.

Brown v. Austen, 287.

Brown v. Bank, 514, 518.

Brown v. Bartee, 554.

Brown v. Burrell, 339.

Brown v. Cavendish, 343.

Brown v. Chamberlain, 348, 346; 347.

Brown v. Finley, 444.

Brown v. Foree, 209, 231, 282, 235,
236, 237, 472.

Brown v. Gilmore, 454.

Brown v. Godsey, 568.

Brown v. Jones, 313, 315, 318.

 

Brown vy. Knox, 848, 428, 430, 433,
494, 554.
16

Brown v. Lyon, 339, 340, 348, 347,
849, 405.

Brown v. McDonald, 83, 91, 258, 265,
266, 272, 278, 328, 509, 517, 528,
571, 574, 575.

Brown v. Minturn, 837.

Brown v. Niles, 580.

Brown v. Osgood, 74, 553.

Brown v. Platt, 166.

Brown v. Riley, 178, 210, 468.

Brown v. Smith, 235, 236, 237.

Brown v. Warren, 341, 573, 576.

Brown v. Webb, 482.

Brownell v. Curtis, 444, 469, 526.

Browning v. Hart, 90,160, 363, 379,
380, 469.

Bruce vy. Smith, 99, 167, 217.

Bruggerman v. Hoerr, 484, 540.

Brummel v. Stockton, 189.

Brumsden v. Stratton, 311, 517.

Bryan v. Brisban, 493.

Bryant v. Kelton, 87, 108, 152, 157,
158, 238.

Bryant v. Mansfield, 451.

Bryant v. Simoneau, 564.

Bryant v. Young, 84, 567, 568.

Buchanan vy. Clark, 247,

Buck v. Sherman, 509, 562.

Buckley v. Wells, 271.

Bucklin vy, Bucklin, 287.

Buckman v. Buckman, 501.

Buckmaster vy. Smith, 186.

Bucknal v. Roiston, 102, 120, 498.

Buehler v. Gloninger, 444.

Buffum v. Green, 218, 219, 251, 556.

Buford v. Buford, 264.

Buie v. Kelly, 249.

Buist v. Smyth, 293.

Bulkley v. Buffington, 80, 98, 97.

Bull v. Harris, 218, 444.

Bull v. Loveland, 458,

Bullard v. Briggs, 314, 317, 556, 557.

Bullard v. Hinkley, 464,

Bullis v. Borden, 153.

Bullitt v. Taylor, 323, 324, 515.

Bullock v. Irvine, 218, 223.

Bullock v. Narrott, 98, 559.

Bulmer vy. Hunter, 308, 309.

Bumpas v. Dotson, 85, 86, 94, 96,
246,

Bunn v. Ahi, 66, 221, 223, 468.

Bunn vy. Bunn, 527.

Bunnel v. Witherow, 305,

Bunyard y. Seabrook, 232.

Burbank v. Hammond, 382.

Burbridge v. Seely, 153.

Burckmyers y. ME 292, 504, 550.

 

TABLE OF CASES.

Burd v. Smith, 376, 435, 439.

Burdick v. Post, 66, 67, 356, 417.

Burget v. Burget, 452,

Burgin v. Burgin, 65, 88, 99, 164,
242.

Burke v. Murphy, 79, 86, 97, 278,
470.

Burkey v. Self, 290.

Burling v. Patterson, 154.

Burlock v. Taylor, 494.

Burnell v. Johnson, 276, 496.

Burns v. Morse, 499, 519,

Burpee v. Bunn, 293.

Burr v. McDonald, 397.

Burrows v. Alter, 458.

Burrows v. Lehndorf, 366, 396.

Burrows v. Stebbins, ‘171, 172, 180.

Burrows v. Stoddard, 501.

Burt v. McKinstry, 67, 372, 373, 374,
375, 376, 548.

Burtus y. Tisdall, 81, 97, 255, 529,
573.

Bushe’s Appeal, 499.

Butcher v. Harrison, 488.

Butler vy. Jaffray, 433, 567.

Butler v. Miller, 152.

Butler v. O’Brien, 459, 461.

Butler v. Ricketts, 316.

Butler v. Roll, 152.

Butler v. Van Wyck, 147.

Burt v. Caldwell, 205, 207.

Butt vy. Peck, 348, 389, 422, 407,

424.
Butterfield v. Stanton, 316.
Butts v. Peacock, 86.
Butts v. Swartout, 139, 152.
Byers v. Fowler, 528, 537, 576.
Byrd v. Bradley, 362, 380, 397.
Byrd v. Curlin, 443,
Byrne v. Becker, 229.
Byrod’s Appeal, 464.

Cadbury v. Nolen, 73, 172, 201, 281.

Cadogan y. Kennett, 58, 59, 63, 76,
102, 123, 129, 161, 194, 230, "246,
280, 291, 305, 307, 308, "320.

Cage v. Wells, 492.

Cahoon vy. Marshall, 178, 550.

Caillaud vy. Estwick, 264, 511.

Caldwell v. Bruggerman, 350, 351.

Caldwell v. Rose, ~ 364, 380, 50.

Caldwell v. Williams, 362, 364, 367,
880, 472, 546, 548.

Calkins y. ‘Lockwood, 208, 256, 261.

Callan v. Statham, 80, 81, "82, 87, 91
95, 97.

Callen v. Thompson, 158, 156.
TABLE OF OASES.

Cameron y. Montgomery, 1
380, 395. See

Cameron v, Scudder, 396.

Camp v. Scott, 275.

a v. Erie R. R. Co., 452, 466,

Campbell v. Leonard, 163.

Campbell vy. Woodworth, 423.

Campion y. Cotton, 267, 305, 807,
308, 309.

Candler y. Fisher, 455, 538.

Cannon y. Peebles, 382, 385, 412,
414, 418,

Canton v. Dorchester, 448, 445.

Carie v. Giles, 397.

Carl v. Smith, 292, 467.

Carlisle v. Gaskill, 255.

Carlisle v. Rich, 281, 293, 294, 489.

Carlton v. Baldwin, 403, 408, 418.

Carlton v. King, 331.

Carnahan v. Wood, 549.

Carnall v. Duvall, 219.

Carne v. Brice, 195.

Carny v. Palmer, 230.

Carpenter v. Blote, 256.

Carpenter v. Clark, 210, 211.

Carpenter v. Mayer, 171, 172, 208.

Carpenter v. McClure, 449.

Carpenter v. Muren, 86, 219, 229.

Carpenter v. Roe, 265, 300, 322, 327.

Carpenter v. Simmons, 163, 463.

Carpenter v. Underwood, 404, 416.

Carr y. Burdiss, 151.

Carr v. Dole, 337.

Carr vy. Gale, 542, 551, 558.

Carr vy. Hilton, 488, 519, 525, 533.

Carrollton Bank v. Cleaveland, 550.

Carson v. Foley, 287.

Carter v. Bennett, 454, 455, 512, 540.

Carter v. Carpenter, 98.

Carter v. Castleberry, 463.

Carter y. Graves, 152, 155.

Carter v. Neal, 62.

Carter y. Stanfield, 152, 155.

Carter v. Watkins, 112,115, 187, 189.

Carrville v. Stout, 466, 568.

Cartwright v. Phenix, 188, 200, 205,
207.

Case v. Phelps, 322, 324.

Case v. Winship, 191.

Casey v. Janes, 380, 419, 420.

Casher v. Peterson, 498.

Caskie v. Webster, 492, 493.

Cason y. Murray, 73, 218.

Cass v. Perkins, 193.

Castle v. Bader, 513.

Caston v. Ballard, 450.

2

 

17

Caston vy. Cunningham, 298, 294, 328.

Castro v. Iilies, 230, 233.

Caswell vy. Caswell, 444, 540.

Caswell v. Hill, 293.

Catchings v. Manlove, 264, 293, 510,
525. :

Catlin v. Eagle Bank, 397.

Cato vy. Easley, 290, 489.

Caton v. Moseley, 348.

Cecil Bank v. Snively, 266, 551.

Central R. R. Co. v.Claghorn, 218, 219.

Chaffee v. Sherman, 186, 261.

Chaffees vy. Rich, 397.

Chaffin v. Doub, 200.

Chambers v. Spencer, 286, 2938, 300.

Chamberlayne v. Temple, 800, 502,
517, 518, 522, 539, 577.

Chamberlin, In re, 404.

Chamley v. Dunsany, 329.

Chancellor v. Phillips, 498.

Chandler v. Caldwell, 398.

Chandler vy. Van Roeder, 490.

Chapin vy. Pease, 250.

Chappel v. Clapp, 79, 80, 97, 98, 280.

Charlton vy. Gardner, 69, 194, 287,
325, 826.

Charlton v. Lay, 165.

Chase y. Chase, 486, 545.

Chase v. Ralston, 201, 510.

Chase v. Searles, 264, 511, 528, 535.

Chase v. Walker, 472.

Chase v. Walters, 221, 544.

Chatague Bank v. Risley, 536.

Chatague Bank v. White, 534, 536.

Cheeseman v. Exall, 448.

Chenery v. Palmer, 84, 208, 469.

Chever v. Hays, 396.

Chickering v. Hatch, 84.

Childs v. Derrick, 466, 568.

Chiles v. Bernard, 182, 455.

Chittenden vy. Brewster, 514, 584.

Chophard v. Bayard, 165.

Choteau v. Jones, 444, 476, 489.

Choteau v. Sherman, 218, 223.

Christopher v. Covington, 357, 412,
417, 545, 550.

Christopherson v. Burton, 275, 500,
501.

Christ’s Hospital v. Budgin, 242, 565.

Christy v. Courtenay, 265, 282.

Chubb v. Stretch, 263.

Chumar v. Wood, 152.

Church v. Chapin, 246, 298, 299, 303,
540, 574.

Church y. Church, 443.

Church vy. Drummond, 857, 552.

Church y. Muir, 449,
18

Churchill v. Wells, 227, 297, 323, 324,
328, 829,

Claflin v. Rosenberg, 153, 171, 476.

Clagett v. Gibson, 486.

Claiborne v. Goss, 98.

Clap v. Smith, 349.

Clapp v. Ely, 257.

Clapp v. Rogers, 460.

Clapp v. Tirrell, 554.

Clapp v. Utley, 414.

Clark v. Bailey, 519, 529, 537.

Clark v. Banner, 513.

Clark vy. Chamberlain, 229, 266, 280.

Clark v. Depew, 80, 81, 295, 554.

Clark y. Douglass, 59, 86, 499.

Clark v. French, 98, 331, 382.

Clark v. Fuller, 417.

Clark v. Groom, 377, 379.

Clark y. Johnson, 91, 549.

Clark v. McClelland, 355.

Clark v. Mix, 347.

Clark v. Morse, 210, 211.

Clark v. Rouling, 457.

Clark v. Rucker, 250.

Clark vy. Wentworth, 230.

Clark v. Wise, 79, 89.

Clarke v. Waite, 544.

Clarkson v. De Peyster, 518, 514, 515,
521.

Clarkson v. White, 223.

Clayborn v. Hill, 181, 191, 194, 470.

Clayton v. Brown, 189, 280, 281, 286,
293, 539.

Clayton v. Tucker, 502.

Claytor v. Anthony, 74, 152, 196, 208,
248, 543, 546, 547.

Claywell v. McGimpsie, 554.

Cleaveland v. Deming, 455.

Clemens vy. Davis, 221.

Clements v. Eccles, 275, 292, 293,
301.

Clements v. Moore, 58, 231, 237, 526,
528, 548, 565, 568, 574.

Clerk v. Nettleship, 316.

Cleveland v. Railroad Co,, 223, 401,
574.

Clinn v. Russell, 185.

Clough v. Lambert, 314.

Clow v. Woods, 188, 153, 184, 187,
188, 189, 191, 212, 382.

Clute v. Fitch, 159, 452, 456, 488.

Clute v. Steele, 208.

Coate v. Williams, 400, 408, 420.

Coates y. Gerlach, 82, 298, 314.

Cobb v. Norwood, 522.

Coburn vy. Pickering, 115, 188, 153,
187, 189, 243.

 

TABLE OF CASES,

Cochran y. Paris, 165, 166.

Cocke v. Bromley, 444.

Cocke v. Chapman, 153.

Codman vy. Freeman, 163, 519.

Codwise v. Gelston, 462, 534.

Cohn v. Mulford, 545, 549.

Colby vy. Cressy, 497.

Cole v. Albers, 217, 256, 556.

Cole v. Davies, 102, 125, 196, 197.

Cole v. Dealman, 396.

Cole v. Varner, 321, 325, 549.

Cole v. White, 108, 118, 116, 146, 151,
156, 463, 488.

Coleman y. Bank, 197.

Coleman vy. Cocke, 265, 266, 476, 480,
508, 512.

Coleman v. Pinkhard, 522.

Coles y. Sellers, 256.

Coley y. Coley, 97, 257.

College v. Powell, 316, 317, 548, 554,
574, 575.

Collins v. Brush, 115, 142, 152,
187,

Collins v. Burton, 511.

Collins v. Carlisle, 256.

Collins v. Myers, 163, 164.

Collins vy. Wiley, 337.

Collomb v. Caldwell, 405, 407.

Collumb v. Read, 407, 480, 549, 551,
567.

Colman vy. Croker, 511, 512,

Colquitt v. Thomas, 81, 476, 477, 555.

- 661.

Coltraine v. Causey, 444.

Columbine v. Penhall, 308, 309.

Commercial Bank yv. Cunningham,
256.

Commonwealth vy. Richardson, 476.

Commonwealth vy. Stremback, 498.

Compton v. Peary, 244, 277, 532.

Comstock vy. Rayford, 77, 80, 94, 95,
152, 155, 521.

ati v. Atlantic Ins. Co., 191, 202,
204,

Conger v. Sands, 535.

Conillard v. Duncan, 5388.

ae v. Carson, 344, 405, 410,

Conklin v. Coonrod, 417, 418.

Conklin v. Shelley, 80, 165.

Connah vy. Sedgwick, 377, 381.

Connell v. Chandler, 444,

Conner vy. Carpenter, 449,

Constantine v. Twelves, 79, 82, 168,
165, 223, :

Converse v. Hartley, 325, 327, 329.

Converse vy. McKee, 153.
TABLE OF CASES.

Conway (Zz parte), 348, 347, 351,
352, 353, 368, 869, 876, 395, 399,
419, 426,

Conway yv. Edwards, 1'79, 200.

Cook vy. Johnson, 290, 321, 485, 487,
509, 529.

Cook v. Moore, 544.

Cook v. Swan, 543, 545, 552.

Cook v. White, 2385.

Cook v. Wood, 496, 498.

Cooke v. Smith, 90, 98, 362.

Coole v. Braham, 555.

Coolidge v. Curtis, 218, 330.

Coolidge v. Melvin, 243, 246, 470.

Coope v. Bowles, 354.

Cooper v. McClun, 395.

Copeland v. Weld, 337, 338, 387."

Copenheaver vy. Huffacker, 97, 482.

Copis v. Middleton, 81, 87, 96, 98,
227, 230, 288, 304.

Coppage v. Bennett, 445, 467.

Corey v. Greene, 266, 509, 514.

Corgan vy. Frew, 153.

Corlett v. Radcliffe, 81, 282, 303, 574.

Cornell v. Radway, 513, 522.

Cornish v. Dews, 363.

Cosby v. Ross, 264, 325, 511.

Costenbader v. Shuman, 452.

Costillo v. Thompson, 290.

Cottle v. Fripp, 316, 317.

Coulston v. Gardiner, 487.

Coutts v. Greenhow, 305, 307, 519.

Covanhovan v. Hart, 218, 219, 221,
541, 552.

Cowles v. Ricketts, 217.

Cox v. Dunham, 509.

Cox v. Fraley, 457.

Cox v. Jackson, 152, 445, 498.

Cox v. McBee, 253.

Cox v. McDougal, 498.

Cox v. Platt, 363, 378, 390, 391, 536.

Cox v. Shropshire, 96, 268.

Cox v. Wilder, 467.

Craig v. Gamble, 284, 298.

Craig v. Root, 252.

Craig v. Tappin, 256, 257, 556.

Craig v. Ward, 185.

Cram v. Mitchell, 377, 378, 380, 545.

Cramer v. Blood, 467.

Cramer y. Reford, 258, 272, 322, 489.

Crane v. Deming, 256.

Crane y. Stickles, 246, 485.

Crary v. Sprague, 86, 276, 543.

Craver v. Miller, 87, 97, 183, 460.

Crawford v. Austin, 222, 399.

Crawford v. Carper, 97, 250.

Creagh y. Savage, 160, 551.

 

19

Credle v. Carawan, 254, 556.

Creed v. Lancaster Bank, 328.

Cresswell v. Cocke, 582.

Crippen v. Hudson, 514, 515.

Crisp v. Pratt, 69.

Crockett v. Maguire, 480.

Croft v. Arthur, 265, 305, 307, 309,
310, 463, 527, 571, 576.

Crompton v. Anthony, 512.

Cropsey v. McKinney, 272, 814, 512.

Crosby v. De Graffenreid, 444.

Crosby v. Hillyer, 350, 351.

Cross v. Bryant, 389, 395, 408.

Cross v. Glode, 195.

Crossley v.Ellworthy,286, 294,295,300.

Crouch y. Carrier, 158, 189.

Crow v. Ruby, 348, 545, 554.

Crowningshield v. Kittredge,223,468.

Crozier vy. Young, 264, 266, 511.

Cruikshank yv. Cogswell, 208.

Crumbaugh vy. Kugler, 286, 297, 303,
325, 574,

Crunkleton v. Wilson, 502.

Crutchfield v. Hudson, 458.

Culbertson vy. Luckey, 529.

Cumberland Bank vy. Hann, 497, 498,
499.

Cumming v. Fryer, 278, 551.
Cummings v. McCullough, 349, 366,
380, 381, 476, 528, 535, 545, 567,

Cummins y. Griggs, 200, 202.

Cunningham vy. Dwyer, 248, 555, 556.

Cunningham y. Freeborn, 217, 337,
338, 347, 351, 387, 394, 395, 416,
529, 536,

Cunningham v. Hamilton, 190, 211.

Cunningham v. Neville, 169.

Curd v. Lewis, 485.

Curd v. Miller, 157, 158.

Cureton v. Doby, 222, 225, 244.

Currie v. Hart, 160, 377, 402, 549.

Currier v. Ford, 456.

Currier v. Taylor, 229.

Curry v. Ellerbe, 189.

Curtis v. Leavitt, 75, 289, 240, 241,
273, 330, 405.

Curtis v. Moore, 542, 545, 553, 559.

Curtis v. Price, 327.

Curtis v. Riddle, 476.

Cushwa v. Cushwa, 443, 450, 452.

Cutler v. Dickinson, 84.

Cutter v. Copeland, 154, 159.

Cutter v. Griswold, 266, 286, 508.

Cutting v. Pike, 473.

Quyler v. McCartney, 363, 543, 546,
547, 548, 549, 553.

Cuyler v. Moreland, 513, 515.
20

Daggett v. Adams, 455.

Dale v. Arnold, 153.

Dale vy. Harrison, 443.

Dallam vy. Fitler, 196, 380.
Dallam vy. Renshaw, 244, 551, 562.
Dalton v. Currier, 224, 358.
Dalton v. Mitchell, 94, 97.
Dameron v. Williams, 456, 464.

Damon v. Bryant, 331, 452, 456, 486.
Dana v. Bank of U.S., 215, 381, 397,

405, 409.
Dana v. Haskell, 513.

Dana v. Lull, 347, 354, 867, 405, 472.

Dana v. Stanfords, 221.

Dance vy. Seaman, 214, 371, 403, 405,

413,
Danforth v. Woods, 195.
Daniel v. Morrison, 181, 470.
Daniels v. Fitch, 450.
Daniels v. Willard, 494.
Danjean v. Blacketer, 92, 94, 469.

Danley v. Rector, 157, 189, 258, 272.

Danzey v. Smith, 448, 478.

Darden v. Skinner, 80, 81, 86, 91.

Dardenne v. Hardwicke, 74, 79.

Dargan v. Waring, 513, 536.

Darling v. Rogers, 368, 420.

Dart v. Farmers’ Bank, 229, 255.

Dart v. Stewart, 331.

Darville v. Terry, 68, 220.

Darwin v. Handley, 90, 153, 471.

Davenport v. Cummings, 67, 86, 541.

Davenport v. Wright, 86, 471, 542,

Davis v. Charles, 219.

Davis v. Evans, 99,

Davis v. Gibbon, 98, 483, 568.

Davis v. Graves, 250.

Davis v. Herrick, 294.

Davis v. McKinney, 249, 266, 290,
508.

Davis v. Ranson, 88, 89, 165, 455.

Davis v. Stern, 331, 544.

Davis v. Tibbetts, 229, 266, 508.

Davis v. Turner, 59, 62, 103, 104, 106,
107, 109, 110, fii, "151, 152, 155,
156, 159.

Daws ¥. Cope, 102, 202, 208.

Dawscn v. Figueiro, 896.

Dawson vy. Wood, 185.

Day v. Washburn, 511, 584,

De Bardleben v. Beekman, 152, 209,
472.

De Camp v. Marshall, 350.

De Chrylen’s Case, 266.

De Forrest v. Bacon, 395, 416.

D’Ivernois y. Leavitt, 346, 417, 418,
492.

 

TABLE OF CASES.

De Ruyther v. St. Peter’s Church, 352.

De Wolf v. Harris, 158, 191,193, 209,
256, 472.

Deakerts v. Temple, 545, 550.

Dearing v. Watkins, 193.

Dearman v. Dearman, 447.

Dearman v. Radcliffe, 443, 451, 469.

Deaver v. Savage, 347, 395.

Deckhard vy. Case, 354, 380.

Delaware v. Ensign, 79, 80, 82, 87,
164, 552.

Delesdernier v. Mowry, 464.

Demaree v. Dreskell, 266, 610.

Demarest v. Terhune, 97.

Demerritt v. Miles, 450, 552.

Denison vy. Tattersall, 294.

Dennie v. Hart, 337.

Dennison v. Ely, 444.

Densler v. Edwards, 502, 503.

Derby v. Gallup, 77, 549, 552.

Derry Bank y. Davis, 371, 457.

Des Brisay v. Hogan, 514.

Desha v. Scales, 159.

Deubell v. Fisher, 312.

Devon v. Watts, 230.

Devries v. Phillips, 96, 223.

Dewart v. Clement, 172.

Dewey v. Adams, 380.

Dewey v. Littlejohn, 89, 91, 9, 99,
165, 166, 252, 402, 528.

Dewey v. Long, 266, 290, 508.

Dewey v. Thrall, Qit.

Dexter v. Parkins, 153.

Dick vy. Cooper, 261, Qv7,

Dick v. Grissom, 80, 91, 92, 98, 258,
272, 273, 529.

Dick v. Hamilton, 287, 288, 322.

Dick v. Lindsay, 197.

Dickerson v. Benham, 898.

Dickenson v. Cook, 90, 198.

Dickinson v. Way, ‘471, 574,

Dickson v. Rawsom, 396, 397, 405.

Dietus v. Fuss, 290, "991,

Dillard v. Dillard, 290,

Dimon y. Delmonico, 387, 389.

Dingley v. Robinson, 458.

Divver v. McLaughlin, 72, 88, 115,
140, 152, 163, 187, 257.

Dixon v. Hill, 477, 487,

Doack vy. Brubacker, 154, 191, 206.

Doane y. Eddy, 112, 142, 152, 187,
189, 191, 199.

Dobson v. Erwin, 278, 509, 582.

Dockray vy. Dockray, 434, 436.

Dockray v. Mason, 266, 477, 509, 522.

Doda v. McCraw, 73, %5, 159, 189,
286, 532.
TABLE OF CASES.

Dodge v. Griswold, 508, 513,

Doe v. Hurd, 555.

Doe v. Routledge, 66, 280, 284, 307.
Doe vy. Scribner, 433, "438

Dohoney v. Dohoney, Bid.

Dolin v. Gardner, 554.

Donaldson vy. Johnson, 550.
Doolittle v. Bridgman, 266.
Doolittle v. Lyman, 444.
Doremus v. Lewis, 371, 406.
Doremus vy. O'Hara, 396.

Dorn y. Bayer, 95.

Dorsey v. Smithson, 444, 454, 502.
Doty v. Turner, 498, 499.
Dougherty’s Estate, 500.

Doughten v. Gray, 86, 264, 565, 574.

Doughty vy. King, 293.

Douglass v. Dunlap, 444, 445, 463.
Dow v. Platner, 404, 418, 419.
Downing v. Kelly, 90.

Downs vy. Kissam, 88,

Doyle v. Sleeper, 265, 286, 326.
Doyle v. Smith, 163, 256.

Drake v. Rogers, 341, 355, 433.
Drakeley v. Deforest, 348.
Dreutzer v. Bell, 268.

Driesbach v. Becker, 396.
Drinkwater v. Drinkwater, 444.
Drum v. Painter, 237, 247.

Drury yv. Cross, 223, 565, 571, 574.
Duberry v. Clifton, 512.

Dubose v. Dubose, 99, 242, 335, 342.

Dubose v. Young, 538.

Duelly v. Van Houghton, 230.

Duffin v. Furness, 263, 264, 511.

Dugan vy. Massey, 467.

Dugan v. Vattier, 477.

Duhme vy. Young, 287.

Dulany vy. Green, 292.

Dunbar v. McFall, 444, 445.

Duncan vy. Forsyth, 277, 278.

Dundas v. Bowler, 397, 493.

Dundas v. Dutens, 250, 263, 264, 312,
511.

Dunham v. Cox, 524,

Dunham v. Waterman, 346, 356, 365,

411, 416.
Dunham y. Whitehead, 242, 405.
Dunlap v. Bournonville, 96, 176, 200.
Dunlevy v. Tallmadge, 512.
Dupree v. Harrington, 186.
Durfee v. Pavitt, 229.

Durkee v. Mahoney, 73,80,92,153, 238.

Duvall vy. Raisin, 337, 347, 387.

Duvall v. Waters, 80, 90, 91, 93, 95,

98, 468.
Dwinel v. Perley, 465.

21

Dyer v. Homer, 449.
Dygert v. Remerschnider, 250, 279,
312, 314.

Eagle v. Eichelberger, 153.

Earl’s Appeal, 498, 499.

Earle v. Thomas, 153.

Easly v. Dye, 539. ;

East India Co. v. Clavell, 481, 488.

Eastman v. McAlpin, 396, 528.

Eastman vy. Scheuttler, 462, 463.

Eastwood yv. Brown, 136, 151,

Eaton v. Campbell, "468.

Eaton v. Cooper, 455, 546.

Eaton v. Patterson, 218,

Eaton v. Perry, 65, 241, 247.

Eaton v. White, 456.

Eberle v. Mayer, 498.

Eckfeldt v. Frick, 177.

Eddins vy. Wilson, 445.

Eddy v. Baldwin, 297.

Ede v. Knowles, 329.

Edgell v. Bennett, 548,

Edgell v. Hart, 163.

Edgell v. Lowell, 233.

Edginton v. Williams, 529.

Edmeston v. Lyde, 521, 522, 535.

Edrington y. Rogers, 223, 224, 280.

Edwards v. Currier, 75, 553.

Edwards v. Harben, 102, 131, 136,
151, 208, 502.

Edwards v. McGee, 484.

Edwards v. Mitchell, 337, 339, 395,
433.

Egbert v. Woods, 355.

Eigleberger v. Kibler, 300, 325, 490,
519, 532.

Elias v. Farley, 401.

Ellinger vy. Crowl, 286, 287, 317,
558.

Ellington v. Currie, 446.

Elliott v. Horn, 445.

Elliott v. Stevens, 255.

Elliott v. Stoddard, 548, 559.

Ellis v. Higgins, 450.

Ellis v. McBride, 444.

Elmes v. Sutherland, 90, 165, 335,
841, 342, 343.

Ely v. Carnley, 99.

Ely v. Cook, 378, 375, 408.

Ely v. Hair, 349, 355, 405, 406, 415.

Embry v. Clapp, 395.

Emerick v. Harlan, 396.

Emerson v. Knower, 347.

Emery v. Vinall, 301, 490.

Emmons v. Bradley, 84.

 

Empringham v. Short, 487.
22

Enders v. Swayne, 72, 79, 80, 92, 98,
95, 97, 580.

Enders v. Williams, 189, 290.

England v. Insurance Co., 176.

England v. Reynolds, 389, 348, 417.

Englebert v. Blanjot, 469, 520.

Engles v. Marshall, 171.

Epperson v. Young, 450.

Eppes v. Randolph, 63, 288, 305.

Erfort v. Consalus, 523, 550, 551.

Erickson vy. Quinn, 525, 583, 536.

Erskine v. Decker, 476.

Estabrook vy. Messersmith, 469, 473.

Estwick v. Caillaud, 395, 400, 405.

Esty v. Aldrich, 260.

Esty v. Long, 456, 540.

Eubanks vy. Dobbs, 444.

Evans v. Chapin, 350.

Evans v. Dunkelberger, 491.

Evans y. Herring, 455.

Evans v. Jones, 394.

Evans v. Lamar, 342,

Eveleigh v. Purrsford, 66, 82, 98, 136,
151, 159, 160, 217, 243.

Everett v. Read, 274, 298, 444.

Everett v. Walcott, 337.

Every v. Edgerton, 212, 554.

Ewing vy. Cantrell, 267.

Ewing v. Cargill, 90, 160, 476.

Ewing v. Gray, 69, 272, 278.

Ewing v. Runkle, 69, 218, 229.

Exton v. Scott, 220.

Eyre v. Bebee, 358, 369, 381, 392,
393, 420, 422, 532.

Eyre v. Eyre, 446.

Eyrick v. Hetrick, 454.

Ezekiel vy. Dixon, 396.

Fairbanks v. Blackington, 452.

Fairbanks v. Bloomfield, 191, 491,
492.

Fairchild v. Gwynne, 350.

Fairchild v. Hunt, 396, 402, 404.

Fairfield v. Baldwin, 471, 501.

Falconer v. Freeman, 518.

Falconer v. Jones, 448, 500.

Fales v. Thompson, 489.

Falkner y. Perkins, 152.

Fall River Iron Works Co. v. Croade,
493.

Fanshawe v. Lane, 390, 396.

Fargo v. Ladd, 451.

Faringer v. Ramsay, 266, 287, 554,
562.

Farmer’s Bank y. Douglass, 79, 89,
a 97, 163, 165, 231, 232, 237, 479,

 

TABLE OF CASES.

Farmer’s Bank v. Long, 314, 318,
322, 565.

Farned y. Harris, 515.

Farnsworth v. Bell, 91, 93, 98, 477,
486, 489, 550.

Farnsworth vy. Shepard, 209.

Farnsworth v. Straster, 515.

Farquharson vy. Eichelberger, 352,
414, 417, 437.

Farquharson v. McDonald, 339, 342,
404, 408, 410, 412.

Farr v. Brackett, 395.

Farrin v. Crawford, 404.

Farrington v. Caswell, 111, 160, 198.

Farrington v. Sinclair, 498, 500.

Farrow y. Teakle, 265.

Fassitt v. Phillips, 438.

Faulkner v. Waters, 261.

Faunce v. Lesley, 242.

Feagan v. Cureton, 538, 539, 540.

Feigley v. Feigley, 87, 485, 486, 529.

Feirnester v. McRorie, 554.

Felder v. Harper, 556.

Feller v. Alden, 271.

Fellows vy. Commercial Bank, 401,
491.

Fellows v. Emperor, 254, 255, 556.

Fellows v. Fellows, 523.

Fellows v. Greenleaf, 338, 389, 340.

Felton v. Wadsworth, 86, 471.

Felton v. White, 97.

Felter v. Cirode, 491.

Ferguson v. Clifford, 498, 495, 554.

Ferguson v. Furnace Co., 251.

Ferguson v. Gilbert, 554.

Ferguson v. Kumler, 218, 540.

Fermester v. McRohrie, 337.

Ferson v. Monroe, 255.

Fetrow v. Merriwether, 452.

Fetter v. Cirode, 83, 520.

Fiedler v. Day, 385, 470, 529, 586.

Field v. Chapman, 516.

Field v. Liverman, 496.

Field v. Sands, 535.

Field v. Simcoe, 153.

Fifield v. Gaston, 229, 559, 562, 563.

Filley v. Register, 282, 286, 558, 560.

Findley v. Cooley, 449.

ae v. Dickerson, 408, 410, 414,

22.
ee v. Kunhardt, 160, 463,
93.

Fisher’s Appeal, 464.

Fisher v. Dinwiddie, 894.

Fisher y. True, 545, 558, 558.

Fisk v. Carr, 338, 458.

Fister v. Beall, 99, 167.
TABLE OF CASES.

Fitch y. Burk, 200, 202.

Fitler v. Maitland, 196, 380.

Fitzer v. Fitzer, 314.

Fitzgerald vy. Forristal, 450.

Fitzgerald v. Gorham, 154, 170.

Fitzhugh v. Anderson, 261.

Flagg v. Willington, 545.

Flanagan v. Wood, 175, 178, 179, 206.

Flanders v. Jones, 464,

Flanigan vy. Lampman, 364, 380, 551.

Fletcher v. Pillsbury, 261.

Fletcher v. Sidley, 265, 266.

Fletcher v. Willard, 84, 151.

Fling v. Goodall, 251.

Flint v. Clinton Co., 351, 353, 423.

Flood v. Prettyman, 72.

Floyd v. Goodwin, 94, 160, 196, 217,
220, 275, 470, 559.

Floyd v. Smith, 396, 397, 405.

Fluharty v. Beatty, 448.

Flynn vy. Williams, 331, 466.

Foley v. Bitter, 363, 403, 438.

Foley v. Foley, 86.

Foley v. Knight, 153.

Fonda v. Gross, 111, 160.

Fones vy. Rice, 293, 481.

Foote v. Cobb, 290, 486, 549.

Forbes v. Logan, 380, 513, 553.

Forbes v. Marsh, 260.

Forbes v. Scannell, 339, 348, 346, 347,
350, 351, 354, 355, 380, 494.

Forbes v. Waller, 514, 551, 553.

Forbush v. Willard, 264.

Ford vy. Aiken, 261.

Ford v. Caldwell, 243, 330.

Ford y. Chambers, 200, 564.

Ford y. Harrington, 447.

Ford y. Williams, 88, 165, 218, 221,
222, 226, 231, 235, 237, 545, 550.

Forkner v. Stewart, 152.

Forrest v. Camp, 277, 477.

Forsyth v. Matthews, 79, 81, 94, 97,
172.

Foster v. Grigsby, 97, 223, 282, 573.

Foster v. Hall, 544, 554, 559.

Foster v. Libby, 404.

Foster v. McGregor, 181, 268.

Foster v. Pugh, 87, 160, 209.

Foster v. Reynolds, 256.

Foster v. Saco Mfg. Co., 387, 416.

Foster v. Thompson, 559.

Foster v. Wallace, 154, 502, 538, 548.

Foster v. Walton, 445.

Foster v. Woodfin, 85, 98, 550.

Fougeres v. Zacharie, 94.

Fouke y. Fleming, 334, 335.

Foulk vy. McFarlane, 277, 457, 460.

 

23

Fowler v. Frisbee, 486, 489.

Fowler v. McCartney, 509.

Fowler v. Lee, 452.

Fowler v. Stoneum, 445.

Fox y. Adams, 439, 493.

Fox v. Heath, 355, 392.

Fox v. Hills, 59.

Fox v. Willis, 457.

Frakes v. Brown, 486, 520.

Frank’s Appeal, 305.

Frank v. Kessler, 286.

Frank v. Levie, 62.

Frank v. Peters, 62, 229.

Franklin v. Stagg, 446.

Frasier v. Frasier, 499.

Frazer vy. Western, 479, 517.

Frazer v. Thompson, 305, 308.

Frazier v. Fredericks, 352, 491.

Freeberger’s Appeal, 496, 497.

Freeland v. Freeland, 465.

Freelove v. Cole, 447.

Freeman v. Burnham, 70, 275, 282,
298, 827, 444, 577.

Freeman v. Pope, 281, 282, 283, 284,
301, 329.

Freeman v. Rawson, 164.

Freeman v. Sedgwick, 443, 445.

French v. Briedelman, 466, 568.

French v. French, 282, 293, 299, 460,
473.

French v. Hall, 210, 490.

French vy. Lovejoy, 355, 390, 392.

French v. Mehan, 458.

Frink v. Buss, 371, 376.

Frisbey v. Thayer, 455.

Fromme v. Jones, 217, 218.

Frost v. Goddard, 457.

Frost v. Mott, 99, 455.

Frost v. Warren, 85, 164.

Frost v. Willard, 261.

Frow v. Smith, 335.

Fryer v. Bryan, 471, 574.

Fuller v. Acker, 74, 152.

Fuller v. Bean, 484.

Fuller v. Ives, 362.

Fuller y. Sears, 153, 233, 456.

Fulmore v. Burrows, 95, 152.

Fulton v. Fulton, 286.

Funk v. Staats, 180, 183, 220.

Furman v. Fisher, 339, 343.

Furness v. Ewing, 459.

Gadsden y. Carson, 392, 435.

Gaffney v. Signiago, 84.

Gage v. Dauchy, 271.

Gaither y."Mumford, 82, 84,152, 184
192.
24

Gale v. Mensing, 339, 340.

Gale v. Williamson, 280, 285, 293,
557.

Gallego v. Gallego, 315.

Galt v. Dibrell, 74, 99, 348, 400, 469.

Galt v. Jackson, 446.

Gamber v. Gamber, 319.

Gamble v. Johnson, 229, 280, 530,
538, 543, 548.

Gannard y. Eslava, 290, 485, 488,
489, 521.

Gans v. Renshaw, 223.

Garahay v. Bayley, 282.

Garbutt v. Smith, 465.

Gardinier vy. Tubbs, 111, 160, 208.

Gardinier v. Otis, 97, 230.

Gardiner Bank v. Hogdon, 92.

Gardiner Bank v. Wheaton, 72, 86,
265, 266, 509, 575.

Gardiner vy. Sherrod, 506.

Gardner v. Adams, 142, 152, 189.

Gardner v. Baker, 293, 490.

Gardner vy. Howland, 202.

Gardner v. McEwen, 80, 163, 164.

Gardner v. Painter, 313.

Gardner v. Webber, 256.

Garfield v. Hatmaker, 266, 508.

Garland y. Chambers, 160.

Garland v. Rives, 79, 81, 98, 224,
225, 277, 477, 539, 565, 574.

Garner v. Frederick, 371, 404.

Garnons vy. Knight, 538.

Garr v. Hill, 220.

Garretson y. Brown, 520.

Garretson v. Kane, 65, 252, 278.

Garrett v. Hughlett, 99, 167.

Garrett v. Rhame, 197, 266, 508.

Garrigues v. Harris, 539, 541.

Garrison v. Brice, 445.

Garrison v. Monaghan, 263.

Gary v. Colgan, 218.

Gasherie v. Apple, 398.

Gasper v. Bennett, 519.

Gassett v. Grout, 315.

Gassett v. Wilson, 68, 220.

Gates v. Andrews, 345, 346, 354, 417,
532.

Gates v. Boomer, 513.

Gates v. Gaines, 196, 197.

Gates v. Gates, 456.

Gates v. Johnson, 471.

Gates v. Labeame, 338, 857, 363, 403,
417, 426, 554.

Gay v. Bidwell, 163.

Gaylor v. Harding, 191, 200, 469.

Gaylord v. Couch, 264, 446, 519,

Gaylords v. Kelshaw, 522.

 

TABLE OF CASES.

Gazzam v. Poyntz, 388, 384.

Geiger v. Welsh, 246.

Geigler v. Maddox, 73.

Geisse v. Brall, 344, 458.

Geist v. Geist, 258, 499.

Gentry v. Harper, 266, 510.

George v. Kimball, 406, 476.

George vy. Milbanke, 267, 284, 291,
481.

George v. Norris, 153.

George v. Williamson, 444.

Gortner v. Canajoharie, 255.

Gere v. Dibble, 522.

Gere v. Murray, 70, 71, 73, 862, 363,
398, 415.

Gerrard v. Lauderdale, 343.

Gerrish v. Mace, 70, 521.

Getzler v. Saroni, 443, 487.

Gibbs v. Chase, 462.

Gibbs v. Glamis, 343.

Gibbs v. Neely, 275, 546, 551.

Gibbs y. Thayer, 445, 465.

Gibbs v. Thompson, 80, 84, 85, 91,
92, 95, 97, 98.

Gibbons v. Peeler, 444.

Gibson vy. Chedie, 344.

Gibson v. Hill, 81, 87, 98, 153, 158.

Gibson v. Love, 73, 188, 153, 187,
208, 485.

Gibson y. Rees, 344.

Gibson vy. Seymour, 84, 218, 251.

Gibson vy. Walker, 250, 408.

Gifford vy. Ford, 448, 450.

Gilham v. Locke, 252, 254.

Gillespie v. Gillespie, 443, 450.

Gillett v. Phelps, 89, 544.

Gilmer y. Earnhardt,
418.

Gilmore v. N. American Land Co.,
290.

Gimmell v. Adams, 417, 426.

Giraud v. Mazier, 488.

Gist v. Pressley, 159, 191, 192, 198.

Given v. Gordon, 397.

Glaister v. Hewer, 265, 266, 287.

Glasscock v. Batton, 149, 152, 194.

Glassner v. Wheaton, 452, 467.

Glave v. Wentworth, 456.

Gleason v. Day, 213, 251.

Gleisis v. McHatton, 461.

ae v. Glenn, 79, 80,81, 91, 98, 96,

Glenn y. Grover, 92, 217, 218, 223,
oe 288, 527, 528, 529, 549, 554,

Glenn v. Randall, 85, 230, 245, 528,
554, 556,

412, 417,
TABLE OF CASES.

Glidden v. Taylor, 271.

Glover v. Allen, 261.

Godbold v. Lambert, 509.

Godchaux v. Mulford, 171, 176, 242.

Goddard v. Hapgood, 390, 407, 408,
411, 573.

Goddard v. Sawyer, 256.

Goddard vy. Winthroop, 494.

Godding v. Brackett, 265, 266, 508.

Godell v. Taylor, 293,

Godfrey v. Germain, 77, 81, 95.

Golden v. Cockril, 493,

Goldsbury v. May, 94, 153, 170, 190,
209.

Goldsmith v. Russell, 249, 520, 587.

Gooch’s Case, 59, 461, 487, 508.

Goodale v. Nichols, 476.

Goodell v. Williams, 395.

Goodgame v. Cole, 538, 543, 549, 553.

Goodhue v. Berrien, 223, 471.

Goodrich y. Downs, 70, 365, 367,
405, 472.

Goodson v. Jones, 284, 287.

Goodwin v. Hammond, 572.

Goodwin v. Hubbard, 266.

Goodwin v. Kelly, 205.

Goodwin v. Sharkey, 520.

Goodwyn v. Goodwyn, 189.

Googins y. Gilmore, 90, 151, 163, 256.
Gordon y. Cannon, 347, 354, 380, 390,

420, 422, 434, 435, 436, 437.
Gordon v. ‘Coolidge, 342, 351.
Gordon v. Haywood, 476,

Gordon vy. Lowell, 98, 97, 266, 510.
Gorham v. Herrick, 251.”

Gore vy. Clisby, 337, 338.

Gore vy. Waters, 315.

Goss v. Neale, 417.

Gough v. Everard, 99, 167.

Gough v. Henderson, 266.

Gould v. Ward, 82.

Gove v. Lawrence, 331.

Governor vy. Campbell, 368, 558, 554.
Gowing v. Rich, 265, 266, 508,
Gracey v. Davis, 535.

Gragg v. Martin, 270.

Graham v, Furber, 96, 223.

Graham v. Lockhart, 242, 335, 342,

385, 405, 406, 412, 551, 553, 558,
Graham v. McCreary, 210.

Graham y. Smith, 93.

Grant v. Chapman, 389, 416, 417.
Grant v. Lewis, 154, 155, 244, 550.
Graser vy. Stellwagon, 454, 457.
Graves v. Roy, 4838, 435, 491.
Gray v. Colgin, 473.

Gray vy. Faris, 265, 266, 508, 529.

 

25

Gray v. Mathias, 254.

Gray v. St. John, 221, 544.

Gray v. Tappan, 293.

Greathouse v. Brown, 196.

Green v. Banks, 335, 364.

Green y. Branch Bank, 367, 400, 472.

Green v. Kimble, 505.

Green y. Korningay, 454.

Green vy. Tanner, 69, 218, 229, 242,
476, 528, 529.

Greeny. Tantum, 97, 232, 264,510,514.
Green y. Trieber, 74, 334, 335, 365,
400, 401, 405, 433, 434, 435, 495,

Greene y. Buck, 396.

Greene v. Mowry, 493.

Greene v. Stearnes, 489.
Greenfield’s Estate, 287.
Greenleaf y. Edes, 367, 417, 472.
Greenleaf v. Mumford, 513.
Greenwalt v. Austin, 219.
Greenway v. Thomas, 518.
Greenwood v. Broadhead, 512.

.Greenwood v. Coleman, 450.

Greer v. Wright, 264, 486, 511, 566.
Gregory v. Harrington, 235, 449.
Gregory v. Haworth, 445.

Gregory v. Perkins, 73, 84.

Grider v. Graham, 446.

Gridley v. Bingham, 549.

Gridley v. Watson, 286.

Gridley v. Wynant, 468, 476.

Griffin vy. Cranston, 70, 247, 256, 269,

Griffin vy. Marquardt, 368, 388, 413,
553.

Griffin v. Nitcher, 514.

Griffin vy. N. J. Oil Co., 256.

Griffin v. Stoddard, 65, 256.

Griffin v. Wardlaw, 278, 452, 481, 529.

Griffith v. Bank, 251, 511.

Griffith v. Ricketts, 343.

Grimes v. Davis, 153, 189.

Grimes y. Russell, 286.

Grimsby v. Ball, 488.

Grimshaw v. Walker, 436.

Grimsley v. Hooker, 457, 568.

Griswold vy. Sheldon, 105, 158, 163,
164.

Groat v. Rees, 152.

Grogan v. Cooke, 217, 238, 263, 264,
304, 511.

Grooves v. Steel, 544.

Groschen y. Page, 396.

Groshen v. Thomas, 557.

Grover v. Wakeman, 72, 74, 214, 215,
217, 838, 364, 368, 370, 382, 426,
429, 481, 482, 433, 521, 528, 528,
529, 585, 536, 567.
26

Grubbs v. Greer, 98, 158, 166.
Gruber v. Boyles, 74, 279, 543.
Guardians v. Lawrence, 498.

Guerin v. Hunt, 358, 371, 374, 377,
878, 379, 381, 385, 403, 516, 545, 552.

Gugen v. Sampson, 325.

uice v. Sanders, 152.
Guidry v. Grivot, 544. °
Guillander v. Howell, 493.
Guignard y. Aldrich, 160, 218.
Guild v. Leonard, 218.
Gully v. Hull, 444.
Gunn vy. Butler, 246, 253.
Guthrie v. Gardner, 266, 508.
Guthrie v. Wood, 102, 196.
Gutzwiller v. Lachman, 458, 552.
Gutzweiler v. Lackman, 196, 278.
Gwin v. Selby, 255.

Haak y. Linderman, 261.

Hack v. Stewart, 257.

Hackett v. Manlove, 208, 274, 455, 499.

Hadden v. Spader, 264, 510.

Hafner v. Irwin, 69, 88, 357, 379,
381, 412.

Hagan v. Walker, 517.

Haggarty v. Pittman, 377.

Haile v. Brewster, 153.

Haines v. Campbell, 417, 457,

Halbert v. Grant, 91, 98, 266, 509,

512, 516, 568.
Haleombe v. Ray, 84, 468, 469.
Hale y. Alnutt, 223.
Hale v. Chandler, AT1.

Hale v. Saloon Omnibus Co., 88, 96,

230, 288, 536, 562.

Hale v. Smith, 588.

Haleys v. Williams, 535.

Hall v. Arnold, 68, 218, 220, 229.

Hall v. Dennison, 337, 338, 341, 343,
352, 394, 408, 434.

Hall v. Edrington, 286.

Hall v. Hamlin, 540.

Hall v. Heydon, 470.

Hall v. Joiner, 512.

Hall v. Light, 312.

Hall v. Parsons, 173, 176, 177, 200,208.

Hall vy. Redding, 160, 212.

Hall v. Sands, 332, 486.

Hall v. Snowhill, 452.

Hall y. Stryker, 451, 487.

Hall v. Tuttle, 78, 115, 121, 142, 152.

Hall v. Wheeler, 380, B85.

Halsey v. Christie, 455.

Halsey v. Whitney, 74, 337, 338, 339,
841, 842, 347, 348, ’349, ’387, 394,
398, 433, "435, 436, 439, 440,

 

TABLE OF CASES.

Halstead v. Gordon, 415, 422, 428.

Halton v. Jordan, 399.

Hambleton v. Hayward, 99, 167.

Hamblyn v. Ley, 487.

Hanet v. Dundass, 86, 295, 552.

Hamill v. Willett, 109.

Hamilton v. Cone, 266, 508.

Hamilton v. Gilbert, 452.

Hamilton vy. Greenwood, 280, 286.

Hamilton v. Russell, 58, 138, 153.

Hamilton v. Staples, 229.

Hamilton v. Thomas, 325.

Hamilton v. Zimmerman, 270.

Hamlin v. Bridge, 263.

Hamlin v. Wright, 520, 523.

Hammock v. McBride, 277.

Hampson y. Sumner, 517, 528.

Hampton v. Morris, 395, 396.

Hancock v. Horan, 161, 223.

Haney v. Nugent, 87, 92, 98.

Hanford v. Artcher, 96, 103, 108, 147,
151, 154, 157.

Hanford v. Obrecht, 193, 196.

Hanford v. Paine, 491, 4938, 494.

Hankins v. Ingols, 158, 160, 164.

Hanson v. Buckner, 290, 486.

Hanson v. Power, 325, 484.

Hapgood v. Fisher, 247.

Hadaway v. Manson, 152.

Hardcastle v. Fisher, 385, 386.

Hardee vy. Langford, 543.

Harding y. Harding, 471, 501.

Harding v. Janes, 205, 206, 211.

Hardy vy. Green, 227, 305, 307.

Hardy v. Simpson, 72, 385, 403.

Hardy y. Skinner, 99, 335, 403.

Hargroves v. Meray, 254, 313, 329,
331.

Harkrader v. Leiby, 396.

Harlan v. Barnes, 264, 293, 490, 511,
515.

Harland v. Binks, 348.

Harman y. Abbey, 163.

Harman v. Richards, 280, 237, 318,
557.

Harney v. Pack, 90, 94, 218, 251.

Harrington y. Brittain, "99, 167.

Harris v. Alcock, 86, 471, "B57,

Harris v. De Graffenreid, 385.

Harris vy. Sumner, 337, 865, 433,
573.

Harris v. Taylor, 524, 525.

Harris v. Thompson, 353.

| Harrison y. Campbell, 79, 80, 92, 95,

97, 467, 504, 517.
Harrison y. Carroll, 317.
Harrison v. Jaques, 280.
TABLE OF OASES.

Harrison v. Kramer, 230, 520.

Harrison v. Phillips? Academy, 84,
85, 218, 219.

Harrison v. Sterry, 354.

Harshaw v. Woodfin, 99.

Harshman v. Lowe, 396,

Hart v, Crane, 412.

Hart v. Gedney, 380, 412.

Hart v. Hart, 484.

Hartley v. McAnnulty, 448.

Hartman v. Diller, 546, 548.

Hartman y. Vogel, 158.

Hartshorne vy. Eames, 68, 79, 80, 81,
91, 94, 97, 220, 223, 508, 510, 528)
534,

Hartshorne v. Williams, 84.

Harvey y. Alexander, 314, 317, 556,
557,

Harvey v. Crane, 164.

Harvey v. Mix, 382, 468.

Harvey v. Steptoe, 293.

Harvey v. Varney, 449,

Harvin v. Weeks, 449.

Haskell vy. Bakewell, 91, 287, 302,
825.

Haskell v. Greely, 151.

Hastings v. Baldwin, 70, 337, 342,
385, 406, 434,

Hastings v. Palmer, 388, 514.

Hastings v. Spencer, 573.

Hatch v. Bates, 452.

Hatch v. Bayley, 563.

Hatch v. Gray, 315.

Hatch v. Smith, 395, 434.

Haven v. Low, 73, 105, 106, 107, 153,
158, 470.

Haven v. Richardson, 82, 338, 347
348, 374, 433, 486, 440.

Havens v. Hussey, 354.

Hawes v. Leader, 444.

y

Hawkins vy. Allston, 79, 86, 88, 97,

98, 252, 277, 580, 568.
Hawkins v. Moffité, 246.
Hawkins v. National Bank, 165.
Hawkins v. Sneed, 476.
Haydon v. Denslow, 448.

Hayes v. Heidelberg, 460, 461.
Hayes v. Jones, 250, 307, 312.
Haymaker’s Appeal, 462.
Hayner v. Fowler, 488.
Haynes vy. Hunsicker,

202.

Hays v. Doane, 378, 523.

Hays v. Heidelberg, 278,

Haywood v. Sledge, 500.

Hazelinton v. Gill, 102, 136, 194, 305,
318.

199, 201,

 

27

Heacock y. Durand, 367, 424, 514,
530.

Head v. Horn, 256.

Head v. Ward, 192, 193.

Heath v. Page, 299, 466, 486, 542,
543, 544, 568.

Heckman v. Messenger, 391, 404.

Hefner y. Metcalf, 67, 362, 398,

Heighe v. Farmer's Bank, "489, 526.

Heitzman v. Divil, 261.

Helfrich v. Stem, 549, 551, 552, 559.

Hemmenway v. Wheeler, 501.

Hemphill vy. Hemphill, 456, 519.

Hempstead v. Johnson, 96, 161, 337,
363, 885, 403, 405, 409, 554, 563,
564,

Hempstead v. Starr, 395.

Henderson y. Bliss, 428, 488, 485,
439.

Henderson y. Dodd, 296, 325, 486,
558.

Henderson v. Downing, 89, 246.

Henderson v. Haddon, 385, 390.

Henderson vy. Lloyd, 298,

Henderson y. Mabry, 112, 208.

Hendricks v. Mount, 220, ” 452.

Hendricks v. Robinson, 98, 218, 251,
256, 512.

Hendrickson v. Winne, 534.

Henkel (In re), 269.

Hennessy v. Western Bank, 854, 420,
422, 434, 485, 437, 439.

Henry vy. Fullerton, 331.

Henry v. Henry, 563.

Herkimer Co. Bank v. Brown, 498.

Herne v. Meeres, 565, 574.

Hervoy v. Keer, 229.

Herron v. Fry, 179, 200.

Herschfeldt v. George, 308, 323, 331,
574.

Hershey v. Whiting, 446.

Hess v. Hess, 444.

Hessing v. McCloskey, 209, 218, 219,
229, 472, 548.

Hester v. Wilkinson, 291.

Hetfield v. Jacques, 487.

Heydock v. Stanhope, 274, 358, 484,
530.

Heye v. Bolles, 390, 391, 513.

Heyneman vy. Damenberg, 513.

Hickman v. Caldwell, 497.

Hickman y. Perrin, 88, 163, 164, 165.

Hickman y. Quinn, 218, 536.

Hicks v. Stone, 229, 280, 559.

Higgins v. York Building Co., 534,
571.

High y. Nelms, 290, 588, 575.
28

High v. Wilson, 456.

Hightower v. Mustain, 397, 522, 526.

Hildeburn y. Brown, 82.

Hildreth vy. Sands, 463, 558.

Hill v. Freeman, 260.

Hill v. Hill, 260.

Hill vy. Northrop, 219.

Hill v. Reed, 353.

Hill v. Rogers, 219.

Hill v. Pivie River Bank, 452.

Hills y. Eliot, 548.

Hills v. Hoit, 545.

Hilzeim vy. Drane, 454.

Hinde v. Vattier, 218.

Hinde’s Lessee y. Longworth, 286,
490, 589, 558.

Hindman v. Dill, 218, 242, 405.

Hiney v. Thomas, 464,

Hinman vy. Parkis, 272, 287.

Hinton v. Scott, 316.

Hitchcock v. Cadmus, 421.

Hitchcock v. St. John, 92, 354, 380.

Hitt.v. Ormsbee, 295, 538,

Hobbs vy. Bibb, 108, 152,

Hobbs vy. Hull, 313.

Hodge v. Wyatt, 335, 341, 342, 343.

Hodges v. Blount, 82.

Hodgkins v. Hook, 172, 205, 209.

Hodson v. Treat, 452.

Hoeser v. Kracka, 450.

Hoffman’s Appeal, 461.

Hoffman vy. Mackall, 67, 834, 350,
358, 359, 369, 408, Ait, 415, 417,
418,

Hoffman vy. Pitt, 186, 151, 456.

Hoffer y. Clark, 180, 188,

Hoke v. Henderson, 74, 532.

Holbird v. Anderson, 68, 218, 220,
251.

Holbrook v. Baker, 191, 256, 395.

Holdship v. Patterson, 269, 270.

Holland v. Cruft, 444, 572.

Holliday v. Holliday, "446,

Hollins v. Mayer, 435.

Hollinshead v. Allen, 519.

Hollis v. Morris, 446,

Hollister v. Loud, 338, 347, 357, 359,
363, 391, 395, 397, 399, 404) 408,
409, 527.

Holloway v. Millard, 280, 284, 302,
825, 329.

Hollowell v. Simonson, 317.

Hollowell v. Skinner, 261.

Holmes vy. Clark, 280, 286, 325.

Holmes v. Crane, 156, 158, 191, 192.

Holmes v. Penney, 230, 287, 294, 824,
827, 331, 536.

Holmesley v. Hogue, 552.

 

TABLE OF CASES.

Holt v. Bancroft, 366, 396.
Hombeck v. Vanmetre, 153, 159.
Hone vy. Henriquez, 344, 535, 573.
Hone v. Woolsey, 344, 345,

Hood v. Brown, 82.

Hood vy. Fahnestock, 476, 479.

Hoofsmith vy. Cope, 153, 217.

Hook v. Mowre, 98, 331, 479, 484.

Hook vy. Stone, 354.

Hooper v. Edwards, 555.

Hooper vy. Hills, 337.

Hooper vy. Tuckerman, 74, 367, 405.

Hoopes v. Knell, 379.

Hoose v. Robbins, 543, 562.

Hopkins vy. Beebe, 218, 506.

Hopkins y. Galatin Turnpike Co.,
353.

Hopkins v. Scott, 193, 251.

Hopkins vy. Webb, 452.

Hopkirk v. Randolph, 252, 264, 287,
291, 292, 296, 302, 308, 306, 481,
568, 571, 576.

Hord v. Rust, 79, 486, 527.

Horn v. Horn, 263, 264.

Horn vy. Ross, 321.

Horn v. Volcano Water Co., 325, 326,
457.

Horner v. Zimmerman, 448, 512.

Horwitz v. Ellinger, 65, 68, 358, 360,
361.

Hotop v. Durant, 363.

Hotop v. Neidig, 384.

Hough v. Ives. 84.

Houghton v. Tate, 265, 536.

Houghton v. Westervelt, 417.

Houston vy. Boyle, 290, 295.

Houston v. Cantrill, 533.

Houston vy. Howard, 211, 491.

Houston v. Nowland, 337, 352.

Hovey v. Holcomb, 65, 525, 526.

How v. Camp, 90, "91, 97, '395, 529,
536, 567, 568, 571, 572, 575, 576,

Howard v. Crawférd, 81.

Howard vy. Sheldon, 185, 260, 516.

Howard y. Williams, 189, 287, 291,
294, 296, 300, 325.

Howe y. Bishop, 266, 508.

Howe v. Keeler, 172.

Howe v. Reed, 544, 545,

Howe vy. Ward, 321, 325, 485, 489,

Howell v. Allyn, 496, 498,

Howell v. Bell, 154, 242.

Howell v. Edgar, 365, 367, 433, 472.

Howell vy. Edmonds, 444,

Howell v. Elliott, 555.

Hower y. Geesaman, 184, 347, 380,
395, 408.

Howerton v. Holt, 164.
TABLE OF CASES.

Howland vy. Dews, 502, 503.

Howland v. Ralph, 455.

Hoy v. Wright, 476.

Hoye v. Penn, 249, 284.

Hozey v. Buchanan, 488.

Hubbard y. Hubbard, 505.

Hubbard v. Remick, 317.

Hubbard vy. Savage, 256,

Hubbard v. Taylor, 218.

Hubbard v. Winborne, 380.

Hubbs v. Bancroft, 86, 88, 535.

Hubbs v. Brockwell, 445.

Hubler v. Waterman, 407.

Hudgins vy. Kemp, 80, 87, 92, 97.

Hudnal v. Wilder, 58, 286, 290, 327.

Hudson y. Maze, 338, 426.

Huey’s Appeal, 467.

Huff v. Roane, 560.

Huggins y. Perrine, 266, 822, 326.

Hughes v. Bloomer, 528.

Hughes v. Corey, 99, 163, 167.

Hughes v. Ellison, 354.

Hughes v. Monty, 232.

Hugus vy. Robinson, 109, 171, 176,
200.

Hull v. Jeffrey, 396.

Humbert v. Methodist Church, 293.

Humberton v. Howgill, 504.

Humphries y. Freeman, 231, 232.

Humphries v. McCraw, 549.

Hundley v. Buckner, 554.

Hundley v. Webb, 138, 169, 187, 189,
190, 191, 192.

Hungerford v. Earle, 82, 93, 322, 508.

Hunt v. Blodgett, 95, 266, 508.

Hunt v. Butterworth, 444,

Hunt v. Hooper, 497.

Hunt v. Field, 513.

Hunt y. Knox, 97, 531, 534.

Hunt v. Lathrop, 494.

Hunter v. Corbett, 153.

Hunter vy. Foster, 90.

Hunters v. Waite, 243, 281, 282, 283,
286, 296, 298, 301, 330.

Huntzinger v. Harper, 545.

Hurd v. Silsbee, 341, 433, 458.

Hurdt v. Courtenay, 315, 318, 325,
327, 329, 489, 495.

Hurlbert vy. Dean, 391.

Hurlburd v. Bogardus, 178, 206.

Hurlbut v. Carter, 396.

Hussey v. Thornton, 186.

Hussman (In re), 96.

Huston vy. Cantril, 481, 489.

Hutchins v. Gilchrist, 183, 201, 204,
207.

Hutchins vy. Sprague, 468.

Hutchinson y. Horn, 229, 254,

 

29

Hutchinson y. Kelly, 79, 91, 822, 827,
329, 485.

Hutchinson v. Lord, 417, 422.

Hutchinson y. McClure, 218.

Hutchiaoson y. Smith, 355, 397.

Hutchinson y. Watkins, 229.

Hyde vy. Olds, 339, 343.

Hyman v. Bailey, 464, 552.

Hyslop vy. Clarke, 74, 367, 882, 472.

Tley v. Nisswanger, 325, 327, 329.

Imray v. Magnay, 481, 488, 499, 501,
545.

Ingalls vy. Brooks, 540,

Ingles v. Donaldson, 83, 84, 104, 445.

Ingliss v. Grant, 394.

Ingraham v. Geyer, 433, 493.

Ingraham v. Grigg, 350, 399, 404,
423,

Ingraham v. Wheeler, 205, 845, 380,
433.

Ingram v. Kirkpatrick, 343.

Ingram vy. Phillips, 325, 327, 588.

Inloes v. American Exchange Bank,
365, 414, 416.

Insurance Co. v. Wallis, 345, 435,
441, 557.

Trish v. Clayes, 470.

Irwin v. Keen, 364, 385, 523,

Irwin v. Longworth, 458.

Irwin v. Wilson, 256.

Iselin v. Dalrymple, 425, 424.

Isham v. Schaffer, 267, 271.

Ishmael v. Parker, 512.

Ithell v. Beane, 307.

Izard v. Izard, 290, 294, 301, 312.

Jacks v. Tunno, 91, 92, 189, 286,
292, 294, 300, 536.

Jackson y. Andrews, 480.

Jackson v. Bouley, 293, 504.

Jackson v. Brownell, 225.

Jackson v. Brush, 97.

Jackson vy. Cadwell, 455.

Jackson v. Cornell, 68, 358, 379, 381,
392.

Jackson v. Dean, 153.

Jackson v. Dutton, 443.

Jackson v. Forrest, 266, 522.

Jackson v. Garnsey, 4438, 450, 555.

Jackson vy. Ham, 250.

Jackson v. Mather, 69, 80, 81, 90, 95,
98, 486.
Jackson v.
Jackson vy.
Jackson v.
Jackson v.
Jackson v.

Myers, 486.
Parker, 246.

Peek, 249, 279, 303.
Post, 286.

Scott 275.
30

Jackson v. Spivey, 98.

Jackson v. Terry, 476, 479, 480.

Jackson v. Timinerman, 285,

Jackson v. Town, 285, 286,

Jacobi v. Schloss, 466.

Jacobs v. Allen, 422.

Jacobs v. Remsen, 380, 385, 395, 411
424, 549.

Jacoby’ '3 Appeal, 461.

Jacot v. Corbett, 367, 437, 472.

James v. Bird, 446,

James v. Johnson, 82, 93, 97.

James v. Railroad Co., 223.

Jamison v. Chestnut, 488.

Janes v. Whitbread, 416.

Janney v. Barnes, 381, 403, 406.

Jaques v. Greenwood, 398, 463.

Jarman v. Woolloton, 105, 194, 307,
318.

Jarvis v. Davis, 188.

Jayne v. Dillon, 152.

Jeffries v. Cochrane, 535.

Jenison vy. Graves, 273, 529.

Jencks y. Alexander, 266.

Jenkins v. Eichelberger, 261.

Jenkins v. Peace, 98, 253,

Jenkyn v. Vaughan, 245, 281, 329.

Jenne vy. Joslyn, 546.

Jenuess v. Berry, 457, 458, 540.

Jennings v. Carter, 140, 189.

Jessup v. Bridge, 168.

Jessup v. Hulse, 346, 411, 414, 477,
525.

Jessup v. Johnston, 86, 93, 98.

Jewell v. Porter, 443.

Jewett v. Warren, 88, 251.

Jewett v. Woodward, 368.

Jezeph v. Ingram, 195.

Jimmerson v. Duncan, 266, 508.

Jons vy. Bolton, 344, 433, 458.

Johnson v. Brandis, 231, 282, 486.

Johnson vy. Cunningham, 193, 242.

Johnson y. Curtis, 165.

Johnson vy. Cushing, 268.

Johnson vy. Elliot, 452.

Johnson y. Jeffries,452.

Johnson y. Johnson, 229, 247.

Johnson vy. McAllister, 365, 405, 417.

Johnson vy. McGrew, 218, 226, 237.

Johnson v. Morley, 449.

Johnson vy. Murchison, 470.

Johnson v. Osenton, 68, 358.

Johnson y. Sullivan, 228, 231.

a Vv. Thweatt, 70, 163, 165,

79

Johnson y. West, 290.

Johnson v. Whitwell, 223, 224."

Johnson y. Willey, 210,

 

TABLE OF CASES.

Johnston v. Bank, 574.

Johnston y. Dick, 81, 91, 93, 97, 230,
483.

Johnston v. Harvy, 246, 400, 455,
478, 479.

eee v. Zane, 247, 291, 322, 325,

90.

Jones’ Appeal, 305.

Jones v. Ashurst, 486.

Jones v. Blake, 152, 155, 190.

Jones v. Boulter, 231, 280, 284, 290,
317.

Jones v. Bryant, 465.

Jones v. Comer, 450.

Jones vy. Crawford, 463.

Jones v. Dougherty, 337, 338, 433,
458.
Jones v.
Jones v.
Jones v.
Jones v.
Jones v.
Jones v.

Dwyer, 204.

Gorman, 446.

Gott, 153.

Green, 511, 512, 513, 514.
Henry, 86, 312, 508.
Huggeford, 70, 163.
Jones y. Lake, 456.

Jones v. Marsh, 318, 325.

Jones v. Naughright, 219, 221, 226.
Jones v. Norris, 545.

Jones v. Powell, 252.

Jones v. Read, 95, 98, 446, 477, 581,
532,
Jones v.
Jones v.
Jones v.
Jones v.

Reeder, 568.
Ruffin, 251.
Slubey, 294, 556.
Spear, 246.
Jones vy. Taylor, 295, 494.
Jones v. Young, 286.
Jorda v. Lewis, 153.
Jordan v. Fenno, 444,
Jordan v. Frink, 212.
Jordan v. Turner, 163, 192.
Jose vy. Hewett, 249.

Joy v. Sears, 203, 204.
Joyce v. Joyce, 446.

Judd v. Langdon, 205.
Judson v. Gardner, 402.
Juliand v. Rathbone, 850.

Kahley et al, In re, 164, 472.

Kaine v. Weigley, ‘97, 231, 238, 561,
562.

Kalkman y. McElderry, 340.

ae Drake, 73, 77, 94, 96, 153,

ee v. Bridge, 468, 519, 584, 567.

Kavanaugh v. Beckwith, 385.

Kavanaugh v. Thompson, 469.

Kayser v. Heavenrich, 368, 390.

?
TABLE OF OASES.

Kean v. Newell, 73.

Keating v. Keefer, 322.

Keen v. Kleckner, 218, 250, 258,

Keen v. Preston, B57,

Keeney v. Good, 271, 318.

Keep v. Sanderson, 417, 568.

Keighler v. Nicholson, 436,

Keith v. Fink, 390.

Keller v. Blanchard, 152, 157.

Kellogg v. Griffin, 479.

Kellogg v. Slauson, 349, 369, 374,
417.

Kelly v. Baker, 354.

Kelly v. Lane, 520, 568.

Kelsey v. Murphy, 505, 506, 546.

Kelso v. Blackburn, 512.

Kemp v. Carnley, 354, 390.

Kemp v. Porter, 342.

Kemp v. Walker, 218, 219.

Kempland y. Macauley, 496, 501.

Kempner v. Churchill, 77, 83, 87,559.

Kendall v. Fitts, 205, 206, 209.

Kendall v. Hughes, 236, 237, 549,
550, 561.

Kendall v. New England Carpet Co.,
354, 416.

Kendall y. Samson, 208.

Kendrick v. Taylor, 316.

Kennaird v. Adams, 219, 221.

Kennedy v. Head, 315.

Kennedy v. Ross, 79, 93, 152.

Kennedy v. Thorp, 361.

Kepner v. Burkhardt, 90.

Ketchum y. Watson, 153, 186, 261.

Ketellas v. Wilson, 387, 423, 553.

Kettlewell v. Stewart, 433.

Kevan v. Branch, 347, 403.

Keyes v. Brush, 347.

Keys v. Grannis, 456.

Kid v. Mitchell, 189, 288, 291, 325,
452.

Kidd vy. Rawlinson, 102, 197.

Kidney v. Coussmaker, 324, 329.

Kilby v. Haggin, 160, 223, 244, 276,
460.

Killough y. Steele, 152, 159, 248.

Kimball v. Eaton, 443.

Kimball vy. Fenner, 554.

Kimball v. Thompson, 68.

Kimball v. Munger, 497.

Kimmell v. McRight, 266, 292, 508,
544.

Kinder v. Macy, 80, 87, 98, 525.

King v. Bailey, 154, 169, 181, 184,
191, 488, 552.

King v. Brewen, 313.

King v. Cantrell, 84, 468.

King v. Clarke, 444, 539.

 

dl

King v. Humphreys, 261.

King v. Kenan, 163.

King v. Lyman, 502, 508.

King v. Marissal, 229,

King v. Moon, 82, 91, 95, 97, 559,
562, 563, 564.

King v. Moore, 250.

King y. Tharp, 327, 540, 577,

King v. Thompson, 287, "295,

King v. Trice, 395, 476, "524.

King vy. Watson, 356, 394, 433.

King v. Wilcox, 331, 571, 575, 576.

Kingdome v. Bridges, 242,

Kingsbury v. Wild, 444.

Kinnemon vy. Miller, 444,

Kinnard v. Thompson, 842.

Kipp v. Hanna, 290, 291, 301, 324,
329, 570.

Kirby v. Ingersoll, 354.

Kirby v. Schoonmaker, 390, 392.

Kirtland v. Snow, 108, "168, 178, 219,
223.

Kirwan vy. Daniel, 343.

Kissam v. Edmondson, 224, 225.

Kitchell vy. Bratton, 192,

Kitchen y. Reinsky, 393.

Kitchin vy. Dixon, 502.

Kittering v. Parker, 94, 527, 529,
554, 564,

Kittredge v. Sumner, 229.

Klapp v. Shirk, 863, 380.

Klein vy. Horine, 525.

Knapp v. Smith, 271.

Knauth v. Bassett, 390, 391, 457, 514.

Kneeland vy. Cowles, 242, 395, 406,

Knight v. Packer, 373, 396, 402,
410.

Knight v. Waterman, 404,

Knower v. Barnard, 496.

Knox v. Hunt, 91, 246, 477.

Knox vy. Summers, 498.

Kroesen v. Seevers, 205, 207.

Kuhn v. Graves, 99, 167.

Kuhn vy. Stansfield, 318.

Kuykendall v. Hitchcock, 87, 154,
155, 157, 158, 159, 218, 220, 223,
238.

La Cross Co. v. Seeger, 452.
Ladd v. Wiggin, 84, 331, 470.
Lady Cox’s Case, 254.
Lady Lambert’s Case, 124, 193.
Lake vy. Morris, 172, 183, 209.
Lamb v. Fries, 491.
Lamb v. Radcliff, 396.
Lamb vy. Stone, 505.
Lampson vy. Arnold, 214, 336, 351,
864, 366 396.
32

Lanahan v. Latrobe, 458.

Land v. Jeffries, 149, 152, 169, 182,
200, 262, 559.

Landecker vy. Houghtaling, 544.

Lane v. Kingsberry, 286.

Lane v. Lutz, 458, 535.

Laney v. Laney, 443.

Lanier v. Driver, 339, 402.

Lang v. Lee, 80, 163.

Langford vy. Fly, 79, 92, 98, 489.

Langton vy. Tracy, 348, 486.

Lansing v. Woodworth, 256, 257, 366,
402, 405.

Larkin v. McMullin, 194, 322.

Lassell v. Tucker, 354, 390.

Lassells v. Cornwallis, 267.

Lassiter v. Busey, 184.

Lassiter v. Cole, 444.

Lassiter v. Davis, 229.

Latimer v. Batson, 151, 160, 197.

Latimer v. Glenn, 316.

Laughlin vy. Ferguson, 185, 189, 190,
192, 194, 195, 196.

Laurence y. Davis, 338, 340.

Laurence vy. Lippencott, 290, 463.

L’Avender y. Thomas, 220.

Law v. Bagwell, 343.

Law vy. Mills, 396, 492.

Law v. Payson, 264, 469, 539, 553.

Law v. Smith, 82, 98, 532.

Lawrence v. Bank, 454, 466, 522,
568.

Lawrence y. Burnham, 178, 184.

Lawrence vy. Tucker, 256, 556.

Lawton vy. Gordon, 445.

Lawton v. Levy, 512.

Lay v. Neville, 171, 199, 201.

Layson v. Rowan, 337, 348, 371, 386,
395. ;

Le Chaceaux v. Cutter, 396.

Le Prince v. Guillemot, 438,

Lea’s Appeal, 433.

Leach v. Francis, 229.

Leach y. Kelsey, 469.

Leadman vy. Harris, 73, 79, 93, 219,
244.

Leavitt v. Blatchford, 242.

Leavitt v. Leavitt, 287.

Lechmere v. Earl, 252.

Ledyard y. Butler, 479, 480.

Lee v. Abbe, 475, 476.

Lee v. Brown, 457.

Lee v. Figg, 229.

Lee v. Flannagan, 99, 218.

Lee v. Green, 358.

Lee vy. Hunter, 91, 238, 461.

Lee vy. Huntoon, 183, 209, 472.

Lee v. Lamprey, 546, 553,

TABLE OF CASES.

Lee v. Lee, 446.

Leech vy. Shantz, 195, 209.

Leeds v. Sayward, 337, 339.

Legard v. Johnson, 313, 314, 315.

Legerd v. Linley, 151.

Leggett v. Humphreys, 251.

Legro v. Lord, 268, 278.

Lehigh Co. v. Field, 261.

Lehmer v. Herr, 378, 878, 385, 403
545.

Leitch v. Hollister, 242, 405.

Lemay v. Bibeau, 461.

Lentilhorn v. Moffat, 346, 423, 436,
521.

Lenox v. Notrebe, 452.

Leonard v. Bacon, 487.

‘Leonard v. Baker, 182, 196.

Lerow v. Wilmarth, 285, 569.

Lesern v. Herriford, 154.

Leshey v. Gardiner, 443.

Leslie v. Joyner, 269, 270, 273.

Lester v. Abbott, 390, 391.

Levy v. Wallis, 498.

Levy v. Welsh, 168.

Lewis v. Adams, 149, 151, 152.

Lewis v. Caperton, 89, 314, 315, 317,
445, 473.

Lewis v. Castleman, 445.

Lewis v. Love, 79, 91, 98, 331, 445,

Lewis v. Smith, 498.

Lewis v. Stevenson, 152.

Lewis v. Whittemore, 179, 217.

Lewis v. Wilcox, 210, 548.

Lewkner v. Freeman, 82, 218, 322,
486, 508.

Lillard v. McGee, 59, 79, 81, 91, 486,
508, 509.

Lindle v. Neville, 86, 251.

Lindon vy. Sharp, 151.

Linn v. Wright, 67, 347, 381, 563.

Linton v. Butz, 205.

Lion, (The) 452.

Lippincott v. Barker, 433.

Lishy v. Perry, 268.

Lister v. Turner, 512.

Litchfield vy. Pelton, 362, 457, 529,

Litchfield v. White, 421.

Little v. Eddy, 226.

Littleton v. Littleton, 321.

Livermore y. Boutelle, 331, 486.

Livermore v. Jenckes, 491, 493.

Livermore vy. Northrop, 250, 374, 880,
385, 386, 545.

Livingston v. Bell, 483, 486.

Livingston v. Littell, 160.

Livingston v. McInlay, 257.

Lloyd v. Williams, 97, 98, 218, 221.:!

 

Lockhart v. Wyatt, 340, 348,
TABLH OF CASES.

Lockwood v. Nelson, 811.

Lockyer v. De Hart, 290.

Loeffes v. Lewen, 312.

Loeschigk v. Baldwin, 362.

Loeschigk v. Bridge, 89, 232.

Loeschigk y. Hatfield, 251, 821, 325,
329.

Loeschigk v. Jacobson, 888.

Loker vy. Haynes, 553.

Lokerson v. Stillwell, 443, 446.

London y. Parsley, 353, 378.

Long v. Knapp, 199, 201.

Long v. Wright, 445.

Look v. Comstock, 211.

Loomis v Tiffit, 517.

Lord vy. Fisher, 218.

Lord v. Poor, 273.

Loring v. Vulcanized Gutta Percha
Co., 358.

Lormore v. Campbell, 316, 325, 546.

Lott v. De Graffenreid, 242, 530, 533.

Louisiana v. Baillio, 153.

Love v. Mickals, 444.

Lovejoy v. Irelan, 522.

Lovick v. Crouder, 497, 499, 500.

Low v. Carter, 242, 317.

Low v. Graydon, 224, 389, 434.

Low v. Marco, 266, 508.

Lowrie v. Stewart, 218.

Lowry v. Coulter, 219.

Lowry v. Fisher, 290, 327, 467, 490.

Lowry v. Orr, 461.

Lowry v. Pinson, 231, 237, 486.

Luckenbach v. Brinckenstein, 200,
469.

Ludden v. Hazen, 261.

Ludlow v. Hurd, 104, 173, 180.

Ludwig v. Fuller, 184.

Ludwig v. Highley, 212.

Luke v. Billers, 456.

Lukins v. Aird, 71, 246.

Lupton v. Cutter, 214, 217, 337, 338.

Lush yv. Wilkinson, 290, 294, 329.

Lutton v. Hesson, 554.

Lyman v. Cessford, 321, 322, 328,
825, 562.

Lynch v. Raleigh, 321, 331, 517.

Lynch vy. Welsh, 466, 568.

Lynde v. McGregor, 85, 267, 469,
545, 551.

Lynde v. Melvin, 207, 210.

Lyndon v. Belden, 209.

Lyne v. Bank, 212, 281, 290, 291, 293,
814, 318, 322, 325, 327.

Lyon v. Robbins, 536.

Lyon vy. Rood, 282.

Lyons v. Platner, 417.

3

 

 

3d

Lyte v. Perry, 57. .

Macdona y. Swiney, 120, 135, 151,
164,

Macintosh v. Corner, 360, 385.

Mackason’s Appeal, 243, 267, 330.

Mackay v. Douglass, 322, 323.

Mackie y. Cairns, 346, 364, 367, 400,
472.

Macomber v. Parker, 151, 163, 261.

Madden y. Day, 296, 322, 827, 328.

Maennel v. Murdock, 391, 414, 420,
422, 488, 439.

Magawley’s Trust, 264, 536.

Magee v. Carpenter, 191.

Magniac v. Thompson, 305, 309, 311.

Mahaney v. Lazier, 538,

Mahoney v. Hunter, 247.

Maiders v. Culver, 469, 535.

Mair v. Glennie, 203.

Malcolm vy. Hall, 394.

Malcolm v. Hodges, 365, 436.

Maley v. Barrett, 456.

Malone v. Hamilton, 193, 242.

Manchester v. McKee, 511, 515.

Manchester v. Smith, 273.

Mandel v. Peay, 363, 407, 554.

Manders v. Manders, 290, 291, 329.

Maney vy. Killough, 159, 160, 192.

yt a Co. y. Evertson, 462, 467,

77.

Manhattan Co. v. Osgood, 293, 295,
485, 504, 552, 553.

Manley, Jn re, 164.

Mann vy. Whitbeck, 366, 420.

Manny v. Logan, 336, 396.

Mansir v. Crosby, 544.

Manton v. Moore, 179, 183, 198.

Maples v. Burnside, 69.

Maples v. Maples, 193, 217.

Marbury v. Brooks, 222, 337, 352,
363, 364, 395, 397.

Marcy v. Clark, 487.

Marden v. Babcock, 69, 252, 554.

Marks v. Hill, 391, 403, 406, 415, 416.

Marlott v. Warwick, 446.

Marlow v. Orgill, 98.

Marr vy. Rucker, 504, 532.

Marriott v. Givens, 86, 99, 242, 278,
470, 508, 572.

Marsh y. Bennett, 391, 426.

Marsh v. Davis, 275, 543.

Marsh v. Fuller, 327.

Marsh v. Hampton, 549.

Marsh v. Lawrence, 191.

Marshall v. Green, 91, 94, 98.

Marshall v. Hutchinson, 225.
34

Marshall v. Marshall, 266, 509.
Marshall vy. McDaniel, 315, 316.
Marston v. Baldwin, 186.
Marston v. Brackett, 445.
Marston y. Coburn, 337, 350.
Marston y. Marston, 3381, 461.
Marston vy. Vultee, 75, 164.

Martell v. Somers, 268, 478, 532, 577.

Martin v.

Martin v.

Martin v.

Martin v.

Martin v.

Martin v.

Martin v.

Martin vy.

Martin v.

Martin v.

Martin v..

Martin v. Root, 274.

Martin v. Smith, 532.

Martin vy. White, 152.

Martindale v. Booth, 137, 151, 191.

Martyn v. McNamara, 290, 294, 481.

Mason v. Baker, 79, 445, 450.

Mason y. Bond, 149, 152.

Mason vy. Rogers, 323,

Matier v. Hissim, 281, 290, 300, 475,
476, 481.

Matter v. Potter, 408.

Matthews v. Buck, 448, 468.

Matthews v. Feaver, 264, 303, 304,
511.

Matthews v. Poultney, 847, 363, 553.

Matthews v. Rice, 253.

Matthews v. Warne, 498, 500.

Mattingly v. Nye, 325, 540.

Mattison v. Demarest, 65, 361, 390,
653.

Mauldin vy. Armistead, 348.

Mauldin vy. Mitchell, 112, 115, 152,
187, 189, 208.

Mayberry v. Neely, 286.

Mayberry v. Shister, 405, 491, 494.

Mayer vy. Clark, 152, 550.

Mayer v. Pulliam, 410.

Mayer v. Webster, 155.

Mayfield v. Kilgour, 217, 219, 554,
556.

Major (Ha parte), 308, 350.

McAllister y. Marshall, 366, 400, 403,
457,

McArthur vy. Hoysradt, 586, 565,

McAulay v. Earnhart, B45,

McBride vy. McClelland, 170.

McBride v. Thompson, 278, 550.

McBroom y. Rives, 71, 218,

Cowles, 475, 476.
Evans, 290.

Hill, 491.
Maddox, 163.
Martin, 444, 446.
Mathiot, 185, 186.
Michael, 513.
Oliver, 288, 325.
Podger, 128, 151, 456.
Potter, 495.

Rice, 163.

 

TABLE OF CASES.

McBurnie (Zx parte), 305, 308, 309,
310.

McCabe v. Brayton, 551.

McCabe v. Snyder, 480.

McCain v. Wood, 80, 554.

McCall v. Hinkley, 430, 432, 433.

McCallie v. Walton, 353, 414, 417.

McCalmont vy. Lawrence, 513, 534.

McCartney v. Bostwick, 514, 515,

McCartney v. Welch, 387.

McCaskle v. Amarine, 85, 554.

McCasland y. Carson, 89.

McCaulay v. Rhodes, 315, 316, 524.

McClelland vy. Remsen, 242, 354, 405.

McClenachan’s Case, 296, 298.

McClenny v. Floyd, 450.

McClenney v. McClenney, 530.

McCleskey v. Leadbetter, 444.

McClung v. Bergfield, 410, 411. 414.

McClurg v. Lecky, 367, 400, 408, 472.

McColgan vy. Hopkins, 395.

McConihe vy. Sawyer, 331, 559, 564.

McConnell v. Brown, 80.

McCorkle v. Hammond, 258.

McCormick v. Hyatt, 229.

McCreery v. Pursley, 464, 480.

McCulloch v. Hutchinson, 59, 83, 84.

McCullough v. Colby, 513.

McCullough v. Porter, 260.

McCullough v. Sommerville, 355, 390,
395.

McDaniels v. Colvin, 256.

McDermott v. Blois, 516.

McDermott v. Barnum, 261.

McDowell v. Cochran, 266, 510, 517,
522.

McDowell vy. Goldsmith, 92, 490, 530,
531, 539, 540, 543, 544.

McDowell v. Rissell, 546,

McElfatrick v. Hicks, 85, 545, 549.

McElwee vy. Sutton, 328.

McErwin y. Benning, 486.

McElwain y. Willis, 514, 524.

McFarland y. Birdsall, 405, 426,

McFarland v. Farmer, 260.

McGavock v. Deery, 256,

McGay v. Keilback, 274, 275.

McGee v. Campbell, 454, 455.

McGill v. Harman, 252, 568,

McGintry v. Reeves, B54.

McGowen v. Hoy, 191, 456.

McGregor v. Chase, 218,

McGuire v. Faber, 452.

McGuire v. Miller, 445,

Mcllvoy v. Kennedy, 93, 551.

Mclinstry v. Tanner, 196.

McIntire vy. Benson, 422.
TABLE OF CASES.

McIntosh y. Bethune, 92, 97.

McKee v. Gilchrist, 460, 462, 546,
572, 573.

McKee yv. Jones, 261.

McKenty v. Gladwin, 258, 470.

McKibbin v. Martin, 66, 110, 172,
176,177, 199, 201.

McKinley v. Combs, 388, 343, 511,
523, 526, 556.

McKinney’ v. Rhoads, 350, 379, 548,
552.

McKinster v. Babcock, 83, 85, 556.

McLachlan v. Wright, 81, 163,

McLane v. Johnson, 331, 444, 548.

McLaren v. Thompson, 229, 251.

McLaughlin y. Bank of Potomac,
73, 485, 490, 524, 539.

McLaughlin v. McLaughlin, 443, 444.

McLaurie v. Partlow, 316.

McLean v. Button, 246.

McLean v. Lafayette Bank, 68, 94.

McLean v. Morgan, 93, 486.

McLemore y. Knuckolls, 272, 290,
489,

“McLure v. Ashby, 525, 532, 533.

McMahan v. Morrison, 213, 251.

McMeekin v. Edmonds, 280, 303, 565,
574.

McMenomy v. Ferrers, 395.

McMenonyy v. Roosevelt, 217.

McNaughtin v. Lamb, 517, 534,

McNeal v. Glenn, 80, 90, 528, 556,
658.

McNeal v. Smith, 499.

McNew v. Smith, 519.

McQuinnay vy. Hitchcock, 94, 153,
217.

McRea vy. Branch Bank, 80, 97, 529,

McVicker vy. May, 171, 189.

McWhorter v. Hurling, 461, 464.

Mead v. Combs, 470, 571.

Mead v. Gregg, 265, 326.

Mead y. Phillips, 160, 351, 363, 370,
881, 385, 424, 555.

Meade v. Smith, 202, 219, 253.

Means v. Hapgood, 493, 494.

Mechanics Bank y. Dakin, 513.

Mechanics Bank v. Gorman, 436.

Mechanics Bank v. Taylor, 315.

Meeker v. Harris, 219, 225, 371, 525.

Meeker v. Sanders, 338, 346, 363, 414.

Meeker y. Wilson, 184, 203.

Meggott v. Mills, 102, 125, 183.

Meixell v. Williamson, 229,

Melody v. Chandler, 165,

Melville v. Brown, 513.

Mercer v. Miller, 319.

 

35

Merchant's Bank v. Newton, 229, 232.

Meredith v. Benning, 506.

Merrick v. Henderson, 395.

Merrill vy. Dawson, 159, 190, 191, 193.

Merrill v. Englesby, 345, 395.

eo v. Locke, 80, 81, 96, 97, 212,
55:

Merrill vy. Mecham, 331, 468, 543.

Merrill v. Rinker, 186, 187, 260, 261,
822.

Merrill v. Williamson, 93, 554,

Merritt v. Lyon, 194, 195.

Merritt v. Miller, 207.

Merry v. Bostwick, 86, 98, 522.

Merry v. Freemon, 517.

Meserve v. Dyer, 489.

Metcalf v. Van Brunt, 344, 351, 422.

Metropolitan Bank y. Durant, 276.

Metzger, In re, 488. °

Meux v. Anthony, 511, 518.

Meux v. Howell, 69, 357, 394.

Meyer v. Gorham, 191.

Meyer v. Mohr, 297, 467.

Meyer v. Simpson, 79.

Meyers, Jn re, 488, 520.

Michael v. Gay, 238, 2438, 527.

Middlecome y. Marlow, 238, 287,
304; 315."

Middleton v. Carrol, 153.

Middleton v. Hoff, 154.

Middleton v. Sinclair, 91, 98, 463.

Milburn v. Waugh, 163.

Miles v. Edelen, 197, 541.

Miles v. Williams, 263.

Millard v. Hall, 152, 187, 189.

Miller vy. Bryan, 99, 167, 229.

Miller v. Conklin, 428, 483.

Miller v. Desha,' 290.

Miller v. Fraley, 278, 528.

Miller v. Garman, 209, 211.

Miller v. Halsey, 403, 537.

Miller v. Howry, 251.

Miller v. Johnson, 540.

Miller v. Lockwood, 85, 148, 152,
165, 256, 257.

Miller v. Marckle, 450.

Miller y. Miller, 325, 489, 540.

Miller v. Pancoast, 152, 159.

Miller v. Pearce, 290.

Miller vy. Specht, 275.

Miller vy. Sherry, 462, 524, 536.

Miller vy. Stetson, 405.

Miller v. Thompson, 290, 481."

Miller y. Tolleson, 314, 468, 529, 572,
574,

Miller y. Wilson, 265, 296, 297, 821,
469,
36

Millett v. Pottinger, 97.

Mills v. Argall, 344, 354.

Mills v. Block, 513.

Mills v. Camp, 168, 501.1

Mills v. Carnley, 89, 362.

Mills v. Haines, 229.

Mills v. Heweth, 282, 552.

Mills v. Levy, 433.

Mills v. Mills, 247.

Mills v. Morris, 327, 328.

Mills v. Walton, 155.

Mills v. Warner, 180, 181, 211.

Milne v. Henry, 153, 168, 172, 182.

Miner v. Phillips, 548, 549, 552, 553.

Miner v. Warner, 462, 486.

Miners National Bank Appeal, 396.

Minin v. Warner, 246, 462.

Minister v. Price, 99, 167.

Mitchell v. Beal, 70, 88, 89, 159,

Mitchell v. Berry, 290.

Mitchell v. Gazzam, 396.

Mitchell y. Stiles, 346, 383, 384,

Mitchell v. Willock, 380.

Mitchell v. Winslow, 163.

Mixell v. Lutz, 322, 325.

Moffat v. Ingham, 342, 381, 535.

Moffat v. McDowell, 395, 529.

Mohawk Bank v. Atwater, 280, 298,
513.

Moir v. Brown, 348, 351.

Monell v. Sherrick, 79, 86, 238.

Monroe v. Hussey, 154.

Montgomery v. Galbraith, 418.

Montgomery vy. Hunt, 205.

Montgomery v. Kirksey, 89, 96, 160.

Moody v. Burton, 506.

Moody v. Fry, 444.

Moor v. Rycault, 315.

Moore v. Blondheim, 324, 554.

Moore v. Bonnell, 494.

Moore v. Collins, 350, 402, 405, 406.

Moore v. Kelley, 205.

Moore v. McDuffy, 340.

Moore v. Meek, 450.

Moore v. Minerva, 444.

Moore y. Smith, 380.

Moore v. Spence, 290, 490.

Moore v. Tarlton, 572.

Moore v. Thompson, 449.

Moore v. Willett, 491.

Moran v. Dawes, 505.

Moreland v,. Atchinson, 525.

Morey v. Forsyth, 452.

Morewood v. Wilkes, 486.

Morgan y. Biddle, 202.

Morgan v. McLelland, 292.

Morgan v. Republic, 158.

 

TABLE OF CASES.

Morgantham v. Harris, 396.

Moritz v. Hoffman, 287, 328, 489.

Morrill v. Morrill, 503.

Morris y. Allen, 277, 278.

Morris v. Hyde, 209, 210.

Morris v. Morris, 444.

Morrison v. Atwell, 392, 420.

Morrison v. Morrison, 246, 486.

Morse v. Slason, 219, 220.

Morse v. Powers, 205, 207.

Morsell v. Baden, 40.

Morton y. Ragan, 181, 200, 268.

Moseley v. Gainer, 218, 231.

Moseley v. Moseley, 444, 452.

Moss v. Humphrey, 404.

Motley v. Sawyer, 86.

Mott v. Danforth, 485, 506.

Mott v. McNiel, 73, 153, 181, 188.

Mountford v. Ranie, 489.

Mountford v. Taylor, 508.

Mower v. Hanford, 366, 545, 552, 558,

Mowry v. Crocker, 493, 494.

Mowry v. Schroder, 506.

Mugge v. Ewing, 517.

Mulford v. , 446.

Mulford v. Shirk, 404.

Mullen v. Wilson, 322, 468.

Murphy v. Abraham, 250, 312, 321.

Murphy v. Bell, 414, 418.

Murphy v. Hubert, 443, 446, 450.

Murray v. Riggs, 215, 345, 346, 365,
395, 400, 405.

Musselman v. Kent, 509, 532.

ood v. Noyes, 836, 366, 395, 414,

24.

Myers v. Fenn, 4238, 530.

Myers v. Harvey, 186, 196, 197.

Myers v. Kinzie, 363, 529, 548.

Myers v. Leinster, 458.

Myers v. Sheriff, 526.

 

Nash v. Ely, 205.

National Bank v. Sackett, 355.

National Bank y. Sprague, 218, 255,
265, 271, 321.

Navin y. Prowse, 308.

Naylor v. Baldwin, 322.

Naylor v. Fosdick, 339.

Neal y. Glenn, 84.

Neal v. Peden, 550.

Neal v. Williams, 476.

Neale v. Day, 266, 4'78.

Neally v. Ambrose, 417.

Neate v. Latimer, 173.

Neece v. Haley, 210.

Neely ve Wood, 444,

Nellis vy. Clark, 442, 449,
TABLE OF CASES,

Nelson vy. Smith, 98.

Nesbit v. Digby, 90, 97.

Neuffer v. Pardue, 257, 574,

Neusbaum y. Klein, 515.

Neusladt v. Joel, 512.

a Albany Ins. Co. y. Wilcoxson,

4,

New Albany R. R. Co. v. Huff, 397,
398, 405, 409.

on ‘Haven St. Co. v. Vanderbilt,
382

New England Marine Ins. Co. vy.
Chandler, 84, 243.

Newdigate v. Lee, 220, 515, 534.

Newell v. Morgan, 266, 510, 534,

Newell v. Newell, 443,

Newlin v. Garwood, 328.

Newlin v. Osborne, 477,

en v. Bagley, 251, 392, 498,

9

Newman y. Cordell,
280, 553, 559, 560.

Newman v. Willets, 467, 513.

Newsom v. Roles, 245.

Newson v. Douglass, 444.

Newson v. Lycan, 445.

Newstead v. Searles, 307.

Nicholas v. Ward, 321, 325.

Nicholl vy. Mumford, 837, 839, 394.

Nicholls vy. McEwen, 376, 394,
424,

Nichols v. Patten, 559.

Nicholson yv. Leavitt, 68, 216, 359,
870, 380, 881, 890, 411, 412, 417,
492, 526, 553.

Nightingale v. Harris, 250, 385, 386,
403, 404, 484, 437, 488, 440.

Niller v. Johnson, 325, 490.

Nims v. Bigelow, 315, 317.

Niolon v. Douglass, 214, 434, 536.

Niver v. Best, 449.

Noble v. Coleman, 161.

Noble v. Holmes, 456.

Noble v. Noble, 443.

Noble v. Smith, 491, 496.

Norcut v. Dodd, 263, 264, 294, 511,
537.

Norris v. Bradford, 260, 261.

Norris v. Norris, 449.

North v. Belden, 84.

North v. Bradway, 266, 523.

North v. Crowell, 160.

North American Ins. Co, v. Graham,
5138.

Northampton Bank y. Whiting, 66.

Norton v. Cobb, 396.

Norton y. Doolittle, 190, 209.

93, 96, 229,

 

37

Norton y. Kearney, 346, 366, 369,
414, 548.

Norton v. Norton, 281, 282, 283, 286,
308, 329, 444, 517,

Nostrand v. Atwood, 337, 483,

Nouvet v. Bollinger, 488.

Noyes v. Hickok, 336, 895.

Numan v. Kapp, "499.

werd vy. Wilsmore, 238, 804, 313,

Nutter v. Harris, 153.

Ay . Van Husan, 847, 390, 415,
2

O’Brien vy. Coulter, 293, 481, 517.

O’Connor v. Bernard, 70, ‘98, 280,
282, 284, 327, 328, 329, 332, 477,
504.

O’Daniel v. Crawford, 285, 300.

O’Neil v. Orr, 238.

O'Neil v. Salmon, 392, 3938, 460.

Oakover v. Pettus, 79.

Ober v. Howard, 443.

Ocean National Bank y. Olcott, 515.

Ocoee Bank v. Nelson, 89, 218) 235,
244.

Oden v. Rippettoe, 545.

Odenheimer v. Hanson, 509, 510.

Odronaux vy. Helis, 444.

Ogden v. Hesketh, 456.

Ogden y. Peters, 872, 875, 380, 381,
414, 548, 554.

Ogden vy. Prentice, 452, 454, 459,
489.

Ogle v. Linchleberger, 575.

Okie v. Kelly, 458, 477.

Oliver Lee & Co.’s Bank y. Talcott,
71, 402.

Oliver v. Eaton, 163.

Olliver v. King, 459,

Olmstead v. Herrick, 422.

Ontario Bank v. Root, 526.

Oriental Bank y. Haskins, 84, 85,
246, 468.

Orlabar v. Harwar, 151, 444.

Osborn v. Adams, 491.

Osborne v. Moss, 444, 454, 502.

Osborne v. Tuller, 153, 187, 380.

Osgood vy. Manhattan Co., 589.

Otis v. Sill, 154.

Overton v. Morris, 80, 81, 93, 277.

Owen v. Arvis, 90, 93.

Owen v. Body, 416.

Owen v. Dixon, 444, 454, 455.

Oxford’s Case, 69.

Pacheco y. Hunsacker, 180, 183.
38

Pack v. Bathurst, 267.

Page v. Broom, 343.

Page v. Carpenter, 153, 181.

Page v. Goodman, 266, 508.

Page v. Kendrick, 325.

Page v. Smith, 396, 397.

Page v. Weymouth, 347.

Paget v. Perchard, 135, 151, 166.

Paige v. O'Neil, 452, 456, 476.

Palmer v. Giles, 365, 367,483,472, 479.

Palmer v. Henderson, 229.

Palmer y. Myers, 355.

Paper Works vy. Willett, 62, 549,
552, 553.

Paris v. Vail, 186, 261.

Park v. Harrison, 90.

Parker v. Barker, 85.

Parker v. Crittenden, 233, 468, 476.

Parker v. Holmes, 574.

Parker v. Kendricks, 175, 177.

Parker v. Nichols, 247.

Parker v. Pattee, 84.

Parker v. Price, 347.

Parker v. Proctor, 286.

Parker v. Tiffany, 448.

Parker v. Waugh, 498.

Parkhurst v. McGraw, 526, 529, 541,
562, 563.

Parkinson v. Hanna, 283.

Parkman v. Welch, 294, 331, 477,
529, 530.

Parnell v. Howard, 217.

Paroin v. Capewell, 319.

Parrish vy. Murphree, 286, 294, 296,
297, 327.

Parsons v. McKnight, 79, 98.

Parstowe v. Weedon, 517.

Partelo vy. Harris, 545.

Partridge v. Gopp, 248, 264, 280,
284, 288, 292, 301, 305, 510.

Passmore vy. Eldridge, 223.

Passumpsic Bank y. Strong, 395.

Paton v. Westervelt, 499.

Patrick v. Ford, 486.

Patten v. Clark, 260.

Patten v. Smith, 188, 153, 181, 187,
268.

Patterson v. Bodenhamer, 86,

Patterson y. Campbell, 266, 271, 509,
511.

Patterson v. Whittier, 473.

Pattison vy. Stewart, 89, 251, 258.

Patton v. Hayter, 496.

oe y. Crooker, 158, 190, 212, 332,

86.
Paulling v. Sturgus, 81, 212.
Pawley v. Vogel, 271, 822, 326.

 

TABLE OF CASES.

Paxton v. Boyce, 98, 553, 563.

Payne v. Able, 520.

Payne v. Bruton, 446.

Payne v. Craft, 278.

Peacock v. Monk, 245, 265, 555.

Peacock v. Terry, 446.

Peacock v. Tompkins, 257, 402, 468,
535, 573.

Peake vy. Stout, 552, 553,

Pearce v. Beach, 379.

Pearce v. Jackson, 404.

Pearpont v. Graham, 347, 349, 433,
439.

Pearson v. Crosby, 483.

Pearson y. Rockhill, 380, 395.

Peaslee v. Barney, 444, 522.

Peat v. Powell, 293.

Peay v. Sublet, 266, 510.

Peck v. Brummagin, 287.

Peck vy. Carmichael, 229, 280.

Peck vy. Crouse, 543, 548.

Peck v. Land, 58, 78, 79, 81, 152,
161, 231, 549.

Peck v. Merrill, 336.

Peck v. Whiting, 381.

Pecot v. Armelin, 227.

Peebles v. Horton, 76, 85, 96.

Pelham v. Aldrich, 489.

Pell v. Tredwell, 291, 322, 327, 459.

Pendleton & Gunston’s Case, 487.

Penhall vy. Elwin, 288, 249, 304.

Pennington v. Chandler,197,198, 277.

Pennington v. Clifton, 266, 331, 508.

Pennington v. Woodall, 251, 454.

Penrod vy. Morrison, 506.

Pepper v. Carter, 800, 325, 463.

Perit v. Webster, 498.

Perkins v. Bradley, 486.

Perkins v. Patten, 161.

Perry vy. Calvert, 445.

Perry v. Foster, 196, 197.

Perry v. Pettingill, 220.

Peters v. Smith, 185.

Peterson v. Williamson, 825, 582.

Petrekin v. Davis, 338, 342, 347,
363, 395, 417.

Pettibone y. Phelps, 473, 545.

Pettibone v. Stevens, 224, 244, 556,
572, 574.

Pettus v. Smith, 65, 231, 572.

Pharis vy. Leachman, 517, 522, 571.

Phettiplace v. Sayles, 80, 85, 92, 98,
ee 212, 217, 222, 227, 443, 528,

2,

Phillips v. Eamer, 549.

Phillips v. Wessen, 509.

Phillips v. Wooster, 287, 458.
TABLE OF CASES.

Phillips v. Zerbe Run, &c. Co., 242.

Phippen y. Durham, 434, 438, "527,

Pickens v. Hathaway, 452.

Pickett v. Pickett, 507, 532, 548.

Pickstock vy. Lyster, 356, 358, 394,

Picquet v. Swan, 286.

Pier v. Duff, 177, 549.

Pierce vy. Brewster, 345, 417.

Pierce vy. Chipman, 170, 205.

Pierce v. Hasbrouck, 452.

Pierce vy. Hoffman, 545.

Pierce v. Jackson, 361, 488.

Pierce v. Patridge, 471.

Pierce v. Thompson, 315.

Pierson v. Heisey, 352.

Pierson v. Manning, 350, 351, 364,
365, 367, 405, 418, 472.

Pierson v. Tom, 228, 551.

Pike v. Bacon, 354, 360, 363.

Pike v. Miles, 268, 286, 326.

Pike v. Pike, 501.

Pilling v. Otis, 67, 76, 78, 89.

Pine v. Rikert, 349, 381, '386, 476.

Pinkerton v. Manchester RR. Co.,
212, 263, 264.

Pinkston v. McLemore, 244, 258,
272, 290.

Pinneo v. Hart, 364, 385.

Pitts v. Viley, 348, 380, 422.

Place v. Langworthy, 163.

Place v. Miller, 398.

Place v. Rhem, 286, 325.

Plank v. Schemmerhorn, 67, 249, 286,
872, 373, 377, 385, 387, 420.

Planter’s Bank v. Borland, 72, 79,
115, 188, 152, 168.

Planters’ Bank v. Henderson, 264.

Planters’ Bank v. Walker, 80, 91, 97,
509, 523, 534.

Planters’ Bank v. Willis, 193.

Planters’ & Merch’s’ Bank yv. Clarke,
90, 166, 381, 402, 413.

Platt v. Brown, 244.

Plummer vy. Worley, 445.

Poague v. Boyce, 77, 97.

Poindexter v. Jeffries, 315, 316.

Pomeroy v. Bailey, 286, 543, 549,
558.

Pomeroy v. Manin, 397, 528, 536, 558.

Pope v. Andrews, 79, 80, 90, 93, 97,
559.

Pope vy. Brandon, 337, 352, 376.

Pope v. Pope, 213, 234, 251.

Pope v. Wilson, 61, 62, 70, 74, 165,
342, 335, 342, "525.

Porche v. Moore, 298.

Porter vy. Cocke, 496, 582.

 

39

Porter v. Williams, 344, 345, 346,
417, 488, 520.

Portland Bank vy. Stacey, 202, 203.

Posey v. Underwood, 500.

Posten v. Posten, 290, 295, 540.

Pott v. Todhunter, 315, 488.

Potter v. Mather, 180.

Potter v. McDowell, 70, 72, '7'7, 89,
90, 281, 282, 283, 294, 296, 543,
553.

Potter v. Payne, 75, 159, 176.

Potter vy. Washburn, 205.

Powell v. Inman, 449.

Power v. Van Buren, 499,

Powers v. Graydon, 889, 434,

Powers v. Green, 176, 190.

Prather v. Barker, 99, 167,

Pratt v. Curtis, 329.

Pratt v. Wheeler, 461, 462.

Prentice v. Madden, 525.

Prentiss v. Slack, 152.

Prescott v. Hayes, 85, 251, 539, 554.

Preston y. Crofut, 476.

Preston v. Griffin, 79.

Preston v. Jones, "253.

Prewett v. Coopwood, 447.

Price v. De Ford, 371, 391, 404, 418,
419.

Price v. Mahoney, 551.

Price vy. Masterson, 573.

Price v. Mazange, 163, 396, 397.

Price v. Parker, 339, 351.

Prince v. Shepard, 85, 473.

Pringle v. Isaacs, 497.

Pringle v. Hodgson, 264.

Pringle v. Pringle, 444.

Pringle v. Rhame, 190.

Prior v. Kinney, 182, 262.

Prior v. White, 98, 99, 218, 545.

Pritchett vy. Jones, 189.

Proctor v. Warren, 265, 266.

Proseus v. McIntire, 265, 448.

Prosser v. Henderson, 87, 210.

Pulliam v. Newberry, 223, 230, 549.

Purkitt v. Polack, 80, 91, 95.

Puryear v. Beard, "452,

Putnam v. Dutch, 102, 208, 204.

Putnam v. Hubbell, 395,

Quarles v. Grigsby, 524.
Quarles v. Kerr, 67, 413.
Quarles v. Lacy, 317, 575,
Quicks v. Garrison, 195,
Quidort v. Pergeaux, 271.
Quimby v. Dill, 489.
Quincy v. Hall, 350.
Quiriaque v. Dennis, 200.
40

Raffensberger v. Cullison, 275.

Ragan v. Kennedy, 153, 208, 217,
588, 549.

Rahn v. McElrath, 224, 242.

Railroad Co. v. Kyle, 98, 97, 539.

Rainsford, In re, 322.

Ralls v. Graham, 504.

Ramsdell v. Sigerson, 433.

Ramsden v. Hylton, 313.

Randall v. Buffington, 269.

Randall v. Cook, 142, 152, 187, 189,

191, 199.
Randall v. Morgan, 250, 312.

Randall v. Parker, 148, 154, 159, 187.

Randall y. Phillips, 452, 528,
Randall v. Sunderland, 372.
Rankin vy. Arndt, 278, 476.

Rankin v. Holloway, 152, 212, 382.

Rankin v. Lodor, 389, 420, 422, 439.

Ranlett v. Blodgett, 163.
Rapalee v. Stewart, 368, 417, 458.
Ratcliff v. Trimble, 87, 229,
Rathbun vy. Platner, 363.
Ravenshaw vy. Collier, 343,

Ravisies v. Alston, 90, 160, 165, 166,

192, 196, 241.

Raymond v. Cook, 286, 293, 489.

Rea v. Alexander, 152, "981, "243, 244,

Rea v. Smith, 451.

Read v. Baylies, 390, 391.

Read. vy. Staton, 476, 480.

Read vy. Wilson, 163, 166, 176, 208.

Read v. Worthington, 67, 350, 367,
388, 389.

Reade v. Livingstone, 250, 290, 311,
312, 325.

Ready y. Bragg, 815.

Reamer v. Lamberton, 350.

Reavis v. Garner, 485, 488.

Redfield v. Buck, 322, 326, 538, 550.

Redfield Mfg. Co. v. Dysart, 81, 97,

555.
Reed vy. Blades, 92, 136, 163, 456.
Reed vy. Carl, 87, 97.
Reed v. Davis, 539.
Reed v. Eames, 193.
Reed v. Emery, 377, 378, 879.
Reed vy. Ennis, 501.
Reed v. Jewett, 84, 151.
Reed v. Noxon, 74, 561.
Reed v. Smith, ” 480, 545, 549, 550.
Reed v. Wilmot, 191.
Reed v. Woodman, 84, 325, 489.
Reese River Mining Co. v. Atwell,
282, 283, 512, 524.
Reeves v. Dougherty, 532.
Reeves v, Harris, 186, 191, 260.

 

TABLE OF CASES.

Reg v. Smith, 527.

Reichart v. Castator, 443, 543.

Reid vy. Gray, 321, 494,

Reinhard y. Bank of Kentucky, 337,
861, 371, 389, 403.

Reinheimer v. Hemingway, 232.

Reitenbach v. Reitenbach, 546.

Remington v. Bailey, 452.

Renard v. Graydon, 398, 434.

Renick y. Bank, 458.

Renton v. Kelly, 416.

Repplier v. Buck, 337, 338, 376.

Repplier v. Orrich, 410.

Reppy v. Reppy, 275, 293.

Reubens v. Joel, 512.

Rew v. Barber, 498.

Rex v. Nottingham, 66, 74, 245, 486.

Reynard y. O’Brien, 514.

Reynolds v. Crook, 89.

Reynolds v. Lansford, 286, 298, 582.

Reynolds v. Wilkins, 220.

Rhines v. Phelps, 153, 193.

Rhodes v. Cousins, 457, 512.

Rice v. Courtis, 495.

Rice v. Dignowitty, 564.

Rice v. Sergeant, 499.

Rich v. Levy, 220, 505.

Richards y. Allen, 84.

Richards v. Ewing, 466, 476, 568.

Richards v. Hazard, 400.

Richards v. Levin, 405.

Richards v. Schroeder, 201, 205.

Richards v. Swan, 78, 80, 528, 538.

Richards v. White, 458.

Richardson v. Forepaugh, 494.

Richardson vy. Horton, 308, 487, 525.

Richardson vy. Rhodus, 294) 300, 322,
325, 326.

Richardson v. Smallwood, 75, 291,
294, 296, 328, 329, 489.

Richardson v. Stewart, 62.

Riches v. Evans, 68, 358,

Richmond v. Curdup, 90.

Richmondville Mfg. Co. v. Pratt,
395, 493.

Ricker v. Cross, 202.

Ricker v. Ham, 466.

Riddell v. Shirley, 269.

Riddle v. Lewis, 451.

Rider v. Kidder, 263, 264, 486, 511.

Ridgeway vy. Underwood, 321, 325,
327, 656.

Ridgway v. Ogden, 69.

Ridler v. Punter, 69, 263.

Ridout vy. Burton, 181.

Riggs v. ORS, 217, 382, 394, 426,
578, 574,
TABLE OF CASES.

Rinchey v. Stryker, 455, 487.

Rindskoff v. Guggenheim, 399, 403,
412, 415, 416, 554,

Ringgold v. Waggoner, 80, 91, 93
98, 478, 571.

Ripley v. "Severance, 470.

Roach v. Deering, 87, 91, 277.

Roan v. Vidal, 444, 446,

Roane v. Bank, 89, "468.

Robb v. Stevens, 391.

Robbins v. Oldham, 200.

Robbins v. Parker, 95, 164, 165.

Roberts v. Gibson, 250, 287, 322,
324, 526.

Roberts v. Guernsey, 207, 562.

Roberts v. Shephard, 89, 354.

Robertson v. Ewell, 149, 152.

Robinett’s Appeal, 315.

Robins v. Embry, 347, 352, 367, 377,
394, 401, 408, 409, 418, 426, 472.

Robinson vy. Bank, 352.

Robinson v. Bates, 467.

Robinson v. Boyd, 568.

Robinson v. Chapline, 260.

Robinson v. Crowder, 354.

Robinson v. Gregory, 354.

Robinson vy. Holt, 230.

Robinson v. McDonnell, 488.

Robinson v. Monjoy, 462.

Robinson v. Nye, 422.

Robinson vy. Pitzer, 550.

Robinson y. Rapelye, 214, 337, 347,
395, 483, 492.

Robingon v. Robards, 238, 246.

Robinson v. Stewart, 223, 224, 246,
308, 529, 584, 571, 574.

Robinson y. Williams, 257.

Rochelle v. Harrison, 450.

Rock vy. Dade, 245, 522.

Rockwood v. Collamer, 178.

Roden v. Murphy, 449.

Roe v. Irwin, 266, 508.

Rogers v. Dare, 153.

Rogers v. De Forrest, 417.

Rogers v. Evans, 231, 486.

Rogers v. Hall, 94, 477, 546, 555, 559.

Rogers v. Vail, 196, aii,

Rohrer v. Turrill, 452.

Rokenbaugh v. ‘Hubbell, 874, 375,
380.

Rollins y. Mooers, 79, 80, 91, 98, 246,
558.

Romp (The), 191.

Rood vy. Welch, 469.

Root v. Reynolds, 234.

Rose v. Burgess, 191.

Rose vy. Coble, 229.

?

 

41

Rose v. Story, 261.

Rosenberg vy. Moore, 437.

Ross vy. Crutsinger, 82, 154, 158.

Ross v. Wilson, 164.

Rothberger vy. Gough, 77.

Ruble v. McDonald, 364, 403.

Rucker y. Abell, 84, 249, 266, 510,
576.

Ruffing v. Tilton, 233, 331, 486, 521.

Ruhl v. Phillips, 89, 390.

Rundle v. Murgatroyd, 293.

Rundlett v. Dole, 347.

Runyon Groshon, 159, 191.

Runyon v, Leary, 74.

Russell vy. Dudley, 464.

Russell v. Dyer, 455, 468.

Russell v. Fabyan, 452, 466.

Russell v. Gibbs, 498, 499.

Russell v. Hammond, 246, 284, 287,
290, 818, 318, 509.

Russell y. Stinson, 321, 485.

Russell v. Tunno, 492, 495.

Russell v. Winne, 163, 164, 471.

Russell v. Woodward, 337.

Ryaall v. Rolle, 123, 126, 136, 159,
161, 195.

Ryan v. Bull, 315.

Ryan v. Daly, 220.

Ryerson y. Eldred, 348.

Sackett v. Mansfield, 410, 414, 415.

Sackett v. Spencer, 250, 543, 549.

Sadlier v. Fallon, 339, 341.

Sagitary v. Hide, 245, 287, 324.

Salmon v. Bennett, 286, 297.

Samuels v. Gorham, 199.

Sanborn v. Kittredge, 201, 528.

Sanders v. -——, 539.

Sanders v. Pepoon, 153.

Sanders v. Wagonseller, 257, 462.

Sanders v. Warton, 486.

Sanderson v. Bradford, 493, 494.

Sands v. Codwise, 77, 91, 93, 98, 520,
571, 572.

Sands v. Hildreth, 82, 86, 91, 95, 229,
322, 463, 526, 527.

Sandford v. Wheeler, 5'74.

Sanford v. Wiggan, 456.

Sangston v. Gaither, 408, 434, 435,
436, 495.

Sargent y. Chubbuck, 298.

Sargent v. Salmond, 264, 489, 511,
540.

Sarle v. Arnold, 79, 91, 544, 545.

Satterwhite v. Hicks, 80, 81, 97, 98,
538.

Saunders v. Ferrill, 811, 312.
42

Saunders y. Turbeville, 165, 536.

Savage v. Murphy, 328.

Savage v. O’Neil, 271, 316, 495.

Savery v. Spaulding, 363, 376, 380,
548.

Savings Bank v. Bates, 219.

Sayre v. Fredericks, 77, 79, 80, 81, 97,
230, 250.

Scales v. Scott, 253, 470, 513.

Scarf v. Halifax, 488."

Schaffermann v. O’Brien, 78, 81, 91,
92, 95, 97, 523, 531.

Schaffner y. Reuter, 314.

Schaeffer v. Fithian, 255.

Scheitlin v. Stone, 81, 89, 527.

Schettler v. Brunettes, 452.

Schlussel v. Willett, 421, 455, 488.

Schott v. Chancellor, 278.

Schufeldt v. Abernethy, 417.

Scott v. Edes, 458, 461.

Scott v. Gibbon, 307.

Scott v. Guthrie, 349.

Scott v. Heilager, 549.

Scott v. McMillen, 518.

Scott v. Purcell, 480.

Scott v. Ray, 380.

Scott v. Winship, 79, 159, 565.

Scouton v. Bender, 534, 535, 536, 574.

Scriven v. Bostwick, 517, 522, 532.

Scrivenor v. Scrivenor, 82, 97.

Scully v. Rearns, 461.

Seaman v. Flemming, 256.

Seaman v. Hasbrouck, 253.

Seaman v. White, 87, 238.

Seavey v. Carter, 445.

Seaving v. Brinkerhoff, 434, 436, 437.

Seavy v. Dearborn, 176, 232.

Sedgwick v. Menck, 520.

Serfoss v. Fisher, 275.

Servis v. Nelson, 451.

Seward v. Jackson, 69, 251, 279, 286,
296, 485, 488, 489.

Sewall v. Russell, 376, 401, 424, 522.

Sexton v. Wheaton, 61, 287, 288, 822,
325.

Seymour v. Beach, 553.

Seymour v. Briggs, 213, 251.

Seymour y. Lewis, 93, 97, 458.

Seymour v. Wilson, 63, 213, 228, 251,
252, 488, 553.

Shadbolt v. Bassett, 452.

Shackelford y. Collier, 271, 272, 368,
488, 519.

Shackelford v. Planters’ Bank, 347,
362, 402, 417.

Shaffer v. Watkins, 83.

Shannon vy. Commonwealth, 281, 245.

 

TABLE OF CASES.

Shannon y. White, 525, 533.

Shapleigh v. Baird, 336, 396, 397.

Sharon v. Shaw, 180, 206.

Sharp v. Jones, 452.

Shattuck v. Freeman, 338, 363, 380.

Shaw v. Bran, 486.

Shaw v. Dwight, 513, 519.

Shaw v. Jakeman, 311.

Shaw v. Lowry, 163.

Shaw v. Robertson, 549.

Shaw v. Standish, 324.

Shaw v. Thompson, 153.

Sheafe vy. Sheafe, 508.

Shearer y. Loftin, 340, 341, 342, 343,
410.

Shears v. Rogers, 293, 296, 444.

Shedd v. Bank, 86, 219, 471.

Shee v. French, 473, 504.

Sheerer y. Lautzenheizer, 409, 412,
455.

Sheldon v. Dodge, 70, 364, 370, 384,
402.

Sheldon y. Smith, 348, 344, 354.

Sheldon y. Stryker, 476.

Shepherd y. Trigg, 154.

Sheppard y. Iverson, 80, 81, 86, 98,
509.

Sheppards v. Turpin, 381, 382, 402,
410.

Sherk vy. Endress, 449.

Sherman vy. Barrett, 254.

Sherron v. Humphreys, 173.

Shields v. Anderson, 208, 502, 504,
571.

Shinkle v. Letcher, 455.

Shipman v. Zitna Insurance Co., 469.

Shirley v. Long, 519.

Shirley v. Shirley, 195.

Shirras v. Craig, 84, 85, 256, 257,
556.

Shiveley v. Jones, 82, 98, 450.

Shontz v. Brown, 249, 251, 253, 279,
292, 821, 485, 554.

Shorman y. Farmers’ Bank, 467.

Short v. Tinsley, 212, 574.

Shouse v. Utterback, 396.

Shumway v. Rutter, 151.

Shurtleff v. Willard, 90, 160, 166,
472,

Sibell v. Remsen, 353.

Sibly v. Hood, 69, 158, 191, 218, 229,
238, 559.

Sickman v. Lapsley, 445.

eee v. Sidensparker, 247,
540.

Siegel v. Chidsey, 62, 219, 255.

Siggers v. Evans, 843, 350.
TABLE OF CASES.

Sigler v. Bank, 255.

Simerson y. Bank, 193, 196, 197.

Simmonds vy. Pallas, 343.

Simmons v. Curtis, 371.

Simon vy. Gibson, 452.

Simpson v. Dall, 261.

Simpson v. Graves, 290, 294, 310, 311,
812, 443.

Simpson vy. Mitchell, 90, 163.

eee v. Simpson, 476, 522, 568,
571.

Simpson v. Warren, 520.

Sims v. Thomas, 263, 264, 511.

Sinclair v. Healey, 476.

Sisson v. Roath, 229, 232.

Skarf v. Soulby, 287, 290, 291, 329.

Skiff v. Solace, 494. ‘

Skillman y. Skillman, 258, 272.

Skipwith vy. Cunningham, 337, 340,
841, 343, 405, 434, 436, 438.

Slater v. Dudley, 247.

Slater v. Sherman, 489.

Slattery v. Steuart, 97.

Sleeper v. Pollard, 206.

Smallcomb v. Buckingham, 497.

Smead yv. Williamson, 87, 98, 98, 232.

Smit v. People, 97.

Smith’s Appeal, 253, 497, 498.

Smith v. ——, 446.

Smith v. Acker, 142, 148, 144, 147,
151, 156, 158.

Smith y. Allen, 268, 306.

Smith v. Blake, 505.

Smith v. Bowen, 447.

Smith v. Campbell, 395.

Smith y. Cherrill, 281, 282, 298,
308.

Smith v. Consolidated Stage Co., 353.

Smith v. Culbertson, 230, 486.

Smith v. Daniel, 98.

Smith v. Elliott, 446, 447.

Smith v. Espey, 331, 459, 461, 469.

Smith v. Foster, 186.

Smith v. Gary, 267.

Smith v. Gettinger, 501.

Smith v. Gordon, 520.

Smith v. Greer, 250, 312, 316, 325,
328.

Smith v. Grim, 522.
Smith v. Henry, 78, 78, 81, 98, 136,
152, 155, 158, 189, 227, 229, 552.
Smith y. Howard, 345, 390, 391, 398,
460.

Smith v. Hubbs, 449.

Smith v. Hurst, 389, 343, 382, 384,
426, 511.

Smith v. Lane, 250.

 

43

Smith v. Leavitts, 340, 342, 362, 381,
417, 426.

Smith y. Littlejohn, 189, 290, 325.

Smith v. Lowell, 84, 161, 212, 382.

Smith v. McCann, 509.

Smith v. McDonald, 212, 332.

Smith v. McLean, 99, 167.

Smith v. Mitchell, 403, 404.

Smith v. Niel, 152.

Smith vy. Onion, 84.

Smith v. Parker, 266, 509.

Smith v. Pollard, 444, 445.

Smith v. Quartz Mining Co., 448.

Smith v. Reavis, 290, 294, 295.

Smith v. Smith, 246.

Smith v. Stern, 171, 208.

Smith v. Tonstall, 507.

Smith v. Yell, 300.

Smith v. Wall, 99, 167. ,

Smith v. Welch 153, 158.

Smith v. Woodruff, 371, 433.

Smithier v. Lewis, 264, 511.

Smyth v. Carlile, 85, 331.

Smyth v. Ripley, 242, 256.

Snodgrass v. Andrews, 517, 522, 5238,
533.

Snodgrass v. Bank, 539, 551.

Snyder v. Christ, 322, 323.

Snyder v. Hitt, 159, 191.

Snyder v. Kunkelman, 496.

Society v. Hitchcock, 498.

Sockman v. Sockman, 522.

Sommer v. Sommer, 499.

Sommerville v. Horton, 74, 160, 165,
217, 472.

Southworth v. Sheldon, 417.

Spader v. Davis, 534.

Sparrow v. Chesley, 479.

Spaulding v. Austin, 84, 205, 209,472.

Spaulding v. Strang, 222, 366, 398,
399, 434, 553.

Speed v. May, 492.

Speer v. Skinner, 256.

Speise v. McCoy, 302.

Spence v. Bagwell, 165.

Spencer vy. Ayrault, 253.

Spencer v. Ford, 350.

Spencer v. Godwin, 290, 479.

Spencer v. Jackson, 403, 424, 434,
435, 438.

Spessard v. Rohrer, 437.

Spies v. Boyd, 163, 472.

Spies v. Joel, 406.

Spindler v. Atkinson, 276, 467.

Spinney v. Portsmouth Hosiery Co.,
341.

Spirett v. Willows, 301, 315.
44

Splawn v. Martin, 97, 229, 554.

Sporrer v. Eifier, 97.

Spring v. Chipman, 184,

Spring v. Strauss, 347.

Springer v. Drosch, 449.

Spurgeon v. Collier, 249, 250, 312.

St. Amand v. Barbara, 329.

St. John v. Benedict, 446.

St. John v. Camp, 84, 86, 246, 251.

Stadtler v. Wood, 159.

Stafford v. Stafford, 251.

Stanbro v. Hopkins, 5388.

Stancill v. Branch, 467.

Stanfield v. Simmons, 338, 395.

Stanford’s Case, 502.

Stanford v. Scannell, 170.

Stanley v. Bunce, 163.

Stanley v. Robbins, 62, 175, 242, 246.

Stanton v. Green, 87, 89, 91, 98, 237,
528.

Stanton v. Keyes, 535.

Staples v. Bradley, 466.

Staples v. Smith, 545.

Stark v. Ward, 184, 482.

Starke v. Littlepage, 450.

Starr v. Dugan, 385.

Starr v. Starr, 91, 93, 251, 540, 543.

Starr v. Strong, 89, 251.

State v. Bank, 353, 393.

State v. Benoist, 74, 334, 351, 361,
362, 364, 380, 417, 426.

State v. Byrne, 164.

State v. Evans, 87, 154, 158, 238.

State v. Fife, 59, 486.

State v. King, 171.

State v. Rosenfield, 155.

State v. Schulein, 174, 176.

State v. Smith, 154, 155.

State v. Tasker, 164.

State Bank vy. Ellis, 524.

State Bank v. Harrow, 266, 509.

Steadman v. Jones, 452.

Stebbins v. M Iler, 552, 563.

Stedman v. Vickery, 163, 251, 470.

Steel v. Brown, 102, 184.

Steele v. Parsons, 81, 97.

Steele v. Ward, 91, 97.

Steelwagon v. Jeffries, 112, 178, 188,
199,

Steere v. Hoagland, 86, 97, 517, 568.

Stein v. Herman, 230.

Steine v. La Dow, 354.

Steinart v. Deuster, 164.

Stephens v. Barnett, 170, 179, 198,
277, 503, 582.

Stephens v. Beall, 513.

Stephens y. Harris, 252.

 

TABLE OF CASES.

Stephens v. Harrow, 446.

Stephens v. Olive, 291, 313.

Stephens v. Sinclair, 267, 275.

Stephenson v. Clarke, 172, 175, 178.

Stephenson v. Hayward, 338.

Sterling v. Ripley, 96, 153, 229, 232.

Sterling v. Van Cleve, 497, 498.

Stern v. Fisher, 389, 416, 536.

Stetson v. Miller, 336.

Stevens v. Bell, 242, 337, 349, 387,
395, 409.

Stevens v. Fisher, 142, 145, 152, 187.

Stevens v. Hinckley, 84, 251, 253.

Stevens v. Irwin, 170, 171, 176, 210.

Stevens v. Olive, 287, 288.

Stevens v. Morse, 445.

Stevenson v. Argy, 395.

Stevenson v. White, 467.

Steward v. Lombe, 179.

Steward v. Thomas, 161, 548.

Stewart v. Ackley, 443, 446.

Stewart v. Coder, 508.

Stewart v. Cohn, 266.

Stewart v. Dailey, 443.

Stewart v. English, 359, 367, 511.

Stewart v. Hall, 343.

Stewart v. Iglehart, 443, 446, 447.

Stewart v. Isidor, 520.

Stewart v. Johnson, 467, 546, 547.

Stewart v. Kearney, 443, 444.

Stewart v. Rogers, 293.

Stewart v. Scannell, 170.

Stewart v. Slater, 152, 155, 256.

Stewart v. Spencer, 340, 341, 364,
403, 438. :

Stewart v. Wilson, 81.

Stickney v. Borman, 292.

Stickney v. Crane, 358, 364, 567.

Stiles v. The Attorney-General, 252.

Stiles v. Lightfoot, 290, 325, 562.

Stiles v. Shumway, 173, 178, 188, 189.

Stillwell v. Mellersh, 267.

Stileman v. Ashdown, 318, 321.

Stockett v. Holliday, 314, 316, 554

Stoddard y. Butler, 81, 102, 111, 114,
116, 142, 146, 155, 170, 223, 468.

Stokes’ Case, 502.

Stokes v. Jones, 246, 481.

Stokoe v. Cowan, 264, 470.

Stone v. Anderson, 513.

Stone v. Bartlett, 452, 478.

Stone v. Grubbam, 74, 80, 82, 102,
122, 191, 469.

Stone v. Locke, 452.

Stone v. Manning, 512.

Stone v. Marshall, 364, 885, 394.

Stone v. Myers, 331, 488, 489,
TABLE OF CASES.

Stone v. Waggoner, 153.

Stores v. Snow, 450.

Storm v. Davenport, 413, 469.

Storm v. Waddell, 520.

Stovall vy. Farmers’ Bank, 68, 160,
234, 238, 277, 278, 546, B48, 572.

Stover v. Harrington, 85, 218,

Streeper v. Eckart, 81, 170, 189.

Stricker y. Tinkham, 493,

Strike v. McDonald, 528, 524, 530,
531, 587, 570, 575, "576.

Strong v. Brewer, 549,

Strong v. Carrier, 347, 380.

Strong v. Hines, 98.

Strong vy. Skinner, 384, 388, 405, 567,
576.

Strong v. Strong, 282, 298.

Strong v. Taylor, 260, 261.

Strong v. Willis, 458.

Stuck v. Mackey, 244.

Sturdivant vy. Davis, 72, 240, 244,
246, 502.

Sturtevant v. Ballard, 72, 137, 152,
168, 187, 188.

Suge v. Tillman, 404.

Suillice v. Gradenigo, 153, 444.
Suiter v. Turner, 161, 478.
Summers v. Babb, 467.

Summers vy. Roos, 152, 164, 165, 166,

257, 331.
Sumner y. Hicks, 345, 417.
Sumner v. Murphy, 443.
Sumner vy. Sawtelle, 266, 467.
Surlott v. Beddow, 451.
Sutter v. Lackman, 549, 551, 559.
Sutton v. Hanford, 67, 417.
Sutton v. Lord, 476.
Sutton v. Pettus, 500.
Sutton vy. Shearer, 210.
Suydam v. Beals, 514.
Swanzey v. Hunt, 487.

Swartz v. Hazlett, 229, 258, 272, 280,

282, 286, 290, 294, 296, 300, 473.
Swearingen v. Slicer, 340.
Sweeney v. Damron, 287, 316.
Sweeny v. Ferguson, 327.

Sweet v. Tinslar, 445, 446.
Sweetzer v. Mead, 5438, 559.
Swift v. Arents, 509.

Swift v. Hart, 152.

Swift v. Holdridge, 567.

Swift v. Thompson, 112, 116, 153,

172, 184, 187, 191, 200, 469, 520.
Swigert v. Thomas, 497, 498.
Swindersine v. Miscally, 489.
Swinerton y. Swinerton, 229.
Swinford v. Rogers, 472, 568.

 

45

Sydnor v. Gee, 106, 107, 151, 190,
192, 200, 208, 243.

Taafe vy. Josephson, 471.

Talcot v. Wilcox, 176, 179.

Tallmadge vy. Sill, 267, 268.

Tanner v. Byrne, 252,

Tantum vy. Miller, 447.

Tappan v. Butler, 91, 265, 322, 325.

ar ae Evans, 264, 508, 510, 514,
518

Tappan y. Nutting, 539.

Tarback v. Marbury, 82, 98, 245,
330.

Tarbell v. Griggs, &15.

Tarleton v. Liddell, 473.

Tarver vy. Roffe, 99.

Tate v. Liggatt, 457, 458, 512.

Tatum vy. Hunter, 470.

Tavenner v. Robinson, 80, 87, 93, 94,
149, 152, 198, 512, 549,

Taylor v. Eubanks, 281, 286, 290,
291, 540.

Taylor v. Heriot, 265, 286, 291, 293,
304, 316, 489.

Taylor v. Jones, 248, 264, 280, 321,
510.

Taylor v. Mills, 111, 160, 198.

Taylor v. Moore, 86, 317, 555, 575.

Taylor v. Persee, 514.

Taylor v. Robinson, 545.

Taylor v. Williams, 467.

Taylor v. Weld, 446.

Taylor v. Wyld, 486, 522.

Teasdale v. Reaborne, 286.

Teeter v. Williams, 269, 270.

Telford vy. Adams, 449.

Terrell v. Green, 76, 238.

Terrell v. Imboden, 443.

Terry v. Belcher, 152, 217, 218.

Terry v. Butler, 380, 385.

Tevis v. Doe, 266, 508.

Thacher v. Phinney, 290.

Thayer v. Willett, 487.

Therasson v. Hickok, 405, 459, 523,
567, 576.

Thigpen v. Pitt, 521.

Thomas v. De Graffenreid, 290, 825,
550.

Thomas vy. Hillhouse, 99, 167; 207.

Thomas v. Jenks, 484, 435.

Thomas v. Phillips, 520.

Thomas vy. Soper, 444.

Thomas v. Tallmadge, 363, 403.

Thompson’s Appeal, 500.

Thompson v. Blanchard, 148, 152.
46

Thompson v. Drake, 80, 81, 85, 86,

98, 573, 575.
Thompson vy. Hammond, 285.
Thompson v. Lee, 476.
Thompson v. McKean, 476.
Thompson v. Moore, 452.
Thompson v. Sanders, 229, 562.
Thompson v. Thompson, 489,
Thompson v. Towne, 267.
Thompson v. Van Vechten, 498.
Thompson v. Webster, 238, 282, 285,
292, 294, 299, 304.
Thompson’ Vv. Yeck, 196.

Thomson vy. Dougherty, 61, 248, 280,
463, 469,

322, 328, 827, 329,
487.

Thornburgh v. Hand, 456.

Thornton vy. Davenport, 81, 153, 191,
221, 322.

Thornton v. Hook, 477, 559.

Thrall vy. Spencer, 468.

Thurmond v. Reese, 513.

Tibbals v. Jacobs, 212, 247.

Tichenor vy. Allen, 520, 522.

Tickner vy. Wiswall, 163, 471.

Tiffany v. Warren, 455.

Tift v. Barton, 157, 158.

Tift v. Walker, 84.

Tifts v, Bunker, 558.

Tilford’s Case, 889.

Tillou vy. Britton, 214, 219.

Tobias v. Francis, 112, 191, 200.

Toby v. Reed, 115, 116.

Todd v. Bucknam, 340, 341, 349,

434, 436,494.
Todd y. Hartley, 290, 325, 327 ,829.

Tompkins v. Wheeler, 339, 350, 380,

395, 398.

Toole v. Darden, 481.

Torbet v. Hayden, 163.

Towle v. Hoitt, 84, 245, 246, 470.

Toulmin y. Buchannan, 289, 306,
307.

Town v. Bank, 397.

Townsend y. Empire Co., 256.

Townsend y. Harwell, 341, 364.

Townsend vy, Maynard, 287.

atin vy. Stearns, 358, 367, 368,

14:

Townsend v. Westacott, 289, 294,
536, 537, 538.

Townsend v. Windham, 267, 268,
287, 290, 324,

Towsley v. McDonald, 213, 251.

Trabue v. Willis, 165.

Train v. Wellington, 501,

Traip vy. Gould, 509.

 

TABLE OF CASES.

Trask v. Bowers, 115, 153, 170, 177.
179.

Treadwell v. Brown, 511.

Trempner v. Barton, 443, 445.

Trezevant v. Courtenay, 545.

Trimble v. Ratcliffe, 79, 86, 91, 98,
238, 280, 286, 295, 803, 565.

Trimble v. Turner, 72, 329, 546.

Tripp v. Childs, 98, 270, 27 1.

Tripp v. Vincent, 85, 329, 526, 574,

Trippe v. Ward, B17.

Trolter v. Howard, 152.

Trott vy. Warren, 476.

Trotter v. Watson, 550, 551.

Troughton v. Troughton, 268.

Troxall v. Dunnock, 229.

True vy. Congdon, 357, 395, 422.

Truitt v. Caldwell, 405, 415, A17,

Truscott v King, 257.

Tubb v. Williams, 79, 80, 86, 89, 97,
466, 568, 573.

Tuesley v. Robinson, 443.

Tuite v. Stevens, 465.

Tully v. Harloe, 257.

Tunneil v. Jefferson, 242, 251.

Tunno y. Trezevant, 305.

Turberville v. Tupper, 74,

Turner v. Campbell, 448.

Turner vy. Coolidge, 204.

Turner v. Jaycox, 367, 393.

Turner v. Turner, 486.

Turnley v. Hooper, 303.

Turvil v. Tupper, 488.

Tuttle v. Turner, 480, 546.

Twyne’s Case, 57, 58, 59, 76, 79, 81,
83, 92, 118, 223, 230, 2438, 248, 280,
301, 485, 487.

Tyler v. Carlton, 556.

Tyler v. Duke of Leeds, 499.

Tyner v. Sommerville, 246.

Tyrer v. Littleton, 69.

Uhl v. Dillon, 505.

Ubler v. Maulfair, 221, 237.

Ulmer v. Hills, 151.

Union Bank v. Ellicott, 353.

Union Bank vy. Toomer, 229, 238, 251,
303.

Unger v. Price, 317.

Updike v. Titus, 250, 257..

Upson vy. Raiford, 190, 550.

Usher v. Hazeltine, 247, 325, 489.

U.S. v. Bank of United States, 339,
847, 357, 395, 397, 424, 493.

U.S. v. Conyngham, 497,

ie v. Hooe, 102, 191, 192, 256,
TABLE OF OASES.

U. 8. v. Lennox, 256.

U.S. v. y. Lottridge, 81, 91.

U.S. v. Mertz, 253, 272, 273, 548,
555.

U. 8. Bank v. Huth, 337, 388, 342,
847, 348, 352, 357, 363, 376, 395,
423, 424, 498, "494,

Utley v. Smith, 177,

Van Buskirk v. Warren, 148, 152,
242, 405, 417, 492.

Van Deusen v. Frink, 65.

Van Dine v. Willett, "420.

Van Etten v. Hurst, 452.

Van Hook v. Walton, 348, 350, 361,
380, 389, 408.

Van Kreusen v. McLaughlin, 469.

Van Kirk v. Wilds, 487, 545, 551.

Van Nest vy. Yoe, 349, 370, 372, 878,
375, 376, 380, 391, 420, 422, 457.

Van Pelt v. Littler, 210.

Van Rossum v. Walker, 392, 408,
416.

Van Vieet v. Slauson, 350.

Van Winkle v. McKee, 344, 433, 568.

Van Winkle y. Smith, 93, .568.

Van Wyck v. Seward, 257, 280, 282,
283, 284, 295, 298, 303, 485, 488,
489, 576.

Valance v. Miners’ Insurance Co. 242.

Vance v. Phillips, 75, 159.

Vance v. Smith, 291, 325, 486, 548,

Vandall v. Vandall, 79, 95, 97.

Vandike v. Christ, 469.

Vanmetre v. Vanmetre, 253.

Vansands v. Miller, 377.

Vanzant v. Davies, 445.

Varnum v. Camp, 395, 498, 494.

Vasser v. Henderson, 513, 519.

Vaughan vy. Evans, 387, 405, 410, 417.

Vaughan v. Thompson, 268.
Veazie v. Holmes, 261.

Venable v. Bank, 79, 81, 85, 91, 93,

95, 97, 523, 549.
Verney’s Case, 274.

Vernon v. Morton, 380, 394, 420, 422.

Vertner v. Humphreys, 327.
Viall v. Bliss, 337.

Vick v. Keys, 82, 152.

Violett v. Violett, 229. :
Visher v. Webster, 179, 200, 548.
Vogt v. Ticknor, 589, 554,
Voorhis v. Bonesteel, 271.
Voorbis v. Langsdorf, 163, 164.
Vose v. Holcombe, 433, 458.

Vredenbergh v. White, 137, 380,

394,

 

47

Waddams v. Humphrey, 62, 218.

Waddingham y. Loker, 271, 562.

Wade vy. Green, 452.

Wadsworth v. Havens, 331, 463, 519.

Wadsworth v. Williams, 519.

Waggoner v. Cooley, 482, 483, 549.

Wait v. Day, 254, 255, 266.

Waite v. Hudson, 218,

Wakefield v. Gibbon, 478, 536.

Walcott v. Almy, 80, 98, 266, 292,510.

Walcott v. Brander, 231.

Walcott v. Keith, 91, 205, 550.

Walden v. Murdock, 200, 202, 207, 220.

Waldie v. Doll, 210

Waldron v. Haupt, 261.

Wales v. Alden, 494.

Walker v. Adair, 377. 5

Walker v. Burrows, 64, 287, 824, 556.

Walker v. Lovell, 456.

Walker v. McConnico, 449,

Walker v, Reamy, 319.

Walker vy. Snediker, 152, 257.

Wall v. Provident Institution, 444,

Wall v. White, 468.

Waller v. Cralle, 173, 188.

Waller v. Mills, "448,

Waller v. Todd, 153, 194, 212, 468,
516, 521..

Wallon v. Bonham, 449,

Walradt v. Brown, "485, 486, 489.

Walsh v. Kelly, 218, 255.

Walter v. McNabb, 97, 529,

Walter v. Wimer, 163.

Walters v. McLellan, 102.

Walters v. Whitlock, 380, 498, 495.

Walthall v. Rives, 99, 523.

Walworth v. Readsboro, 200.

Walwyn v. Coutts, 343.

Ward.y. Crotty, 317, 575.

Ward v. Enders, 331, 534.

Ward vy. Hollins, 329, 522.

Ward v. Lambert, 276.

Ward vy. Lamson, 337.

Ward v. McKenzie, 455.

Ward v. Shallett, 316, 565.

Ward v. Sumner, 191.

Ward v. Tingley, 369, 385, 420.

Ward v. Trotter, 338, 362, 479.

Ward vy. Van Bokkelin, 488.

Ward v.. Wehman, 94.

Warden v. Jones, 250, 264, 312.

Ware v. Gardner, 323.

Warmoll v. Young, 500, 501.

Warneford’s Case, 74.

Warner v. Carlton, 172, 176.

Warner v. Dove, 299, 540.

Warner v. Norton, 82, 153, 200, 205.
48

Warner v. Percy, 74, 540.

Warren v. Hall, 455, 502, 504.
Warren y. Williams, 488, 545, 551.
Wash v. Medley, 90, 153, 189.

Washband v. Washband, 249, 253,

279,
Watchman (The), 430, 433, 493.

Waterbury v. Sturtevant, 217, 218,
219, 220, 221, 229, 232, 529, 530,

546, 548.
Waterbury v. Westerveldt, 467.
Waterhouse v. Benton, 459,
Waterman v. Donalson, 87, 97, 562.
Waters v. Comly, 339.
Waters v. Dashiell, 488, 542, 552.
Waters v. McClellan, 196.

Waters v. Riggin, 85, 229, 5438, 550,

556.
Waterson vy. Wilson, 325.
Watkins v. Birch, 102, 197.
Watkins v. Jenks, 396.

Watkins v. Wallace, 369, 371, 418,

419, 558, 564.
Watrous v. Lathrop, 513.
Watson v. Dickens, 231.
Watson v. Kennedy, 97, 568.
Watson v. Railroad Co., 536.
Watson v. Williams, 153, 191, 192.
Watts v. Gale, 517.
Watts v. Kilburn, 491.
Watts v. Thomas, 2438, 330.
Waverley Bank vy. Halsey, 361, 403.
Wearse v. Pierce, 450.
Weaver v. Joule, 136, 165, 193.
Weaver v. Wright, 97.
Webb v. Brown, 482.
Webb v. Daggett, 385, 536, 537.
Webb v. Rott, 225, 244, 327.
Weber v. Samuel, 435, 520, 567.
Webster v. Clark, 512.
Webster v. Folsom, 229, 266, 508.
Webster v. Harper, 501.
Webster v. Peck, 190.
Webster v. Withey, 246, 266, 512.
Weed v. Davis, 281, 286.
Weed v. Pierce, 62, 264, 510, 535, 571.
Weeden v. Bright, 249,
Weeden vy. Hawes, 86, 574.
Weeks v. Hill, 249.
Weeks v. Wead, 153, 168, 195, 209,

211.
Weightman v. Hatch, 518, 515.
Weil v. Paul, 176, 183, 195, 211.
Weil v. Silverstone, 543,
Weinrich y. Porter, 549,
Weir v. Hale, 497, 498.
Weisinger vy. ‘Chisholm, 75, 280.

 

TABLE OF CASES.

Welcome v. Batchelder, 223, 293.

Welby v. Armstrong, 449.

Welles v. Cole, 252, 306.

Welles v. March, 354.

Weller v. Wayland, 74, 209, 220, 472.

Wellington v. Fuller, 292.

Wellington v. Smith, 505.

Wells vy. Stout, 313, 314, 325.

Wells vy. Thomas, 86, 98.

Welsh v. Bekey, 160, 163, 191, 202,
212, 444.

Welsh v. Welsh, 444.

Wescott v. Gunn, 256.

West v. Saunders, 264, 510.

West v. Skip, 497.

West v. Snodgrass, 245, 436.

West v. Tupper, 351, 493.

Westfall v. Jones, 450.

Whallon vy. Scott, 381.

Wheaton v. Neville, 68, 218, 220, 222.

Wheelden vy. Wilson, 68, 79, 92, 97,
553.

Wheeler vy. Caryl, 318, 315.

Wheeler v. Emerson, 315.

Wheeler v. Sumner, 337, 339.

Wheeler v. Train, 190.

Whigham’s Appeal, 205.

Whitaker v. Garnett, 555.

Whitaker v. Sumner, 84.

White v. Banks, 567.

White v. Brocau, 451.

White v. Cole, 145.

White v. Cooper, 262. \

White v. Graves, 224, 234, 574.

White v. Monsarrat, 418, 426.

White v. Morris, 456,

White v. Sanson, 268, 316, 328, 488,
536.

White v. Trotter, 277, 562.

White v. White, 468.

White v. Winn, 433.

Whitescarver v. Bonney, 325.

Whitefield v. Whitefield, 454.

Whiting v. Johnson, 471, 499, 554,
555.

Whitmore v. Woodward, 331.

Whitney v. Brunette, 153.

Whitney v. Freeland, 458.

Whitney v. Krows, 417, 420.

Whitney v. Stark, 154.

Whitney v. Stearns, 266.

Whipple v. Cass, 501.

Whipple v. Foot, 499.

Whipple v. Pope, 868, 417, 422.

Whipple v. Thayer, 494,

Whittacre v. Fuller, 253.

Whittier v. Prescott, 287.
TABLE OF CASES.

Whittier v. Varney, 545.

Whittington v. Jennings, 267, 328.

Whittlesey v. McMahon, 265, 266,
815.

Wich v. Parker, 527.

Wickes v. Clark, 314, 315, 316, 318,
556.

Wickham y. Miller, 138, 230.

Widgery v. Haskell, 337, 339, 433.

Wiener v. Davis, 333, 396,

Wiggins v. Armstrong, 505.

Wilbur v. Fradenburgh, 325, 327,
829, 380.

Wilbur v. Strickland, 550.

Wilcox vy. Fitch, 486.

Wilcox vy. Watson, 502.

Wilde v. Rawlings, 433.

Wilder v. Brooks, 287.

Wilder y. Fondey, 86, 471.

Wilder v. Winne, 219, 220, 256.

Wilding v. Richards, 348.

Wiley v. Collins, 337, 395.

Wiley v. Gray, 317.

Wiley v. Knight, 89, 163, 234, 572.

Wiley v. Lashlee, 84, 217, 219.

Wilhelmi v. Leonard, 163, 274, 455.

499,
Wilkes vy. Ferris, 395, 405.
Willetts v. Vandenburgh, 512.
Williams vy. Avent, 443, 467.
Williams y. Avery, 331.
Williams v. Banks,

329, 489, 490, 531, 552.
Williams vy. Bizzell, 718.
Williams vy. Brown, 218, 512.
Williams v. Chesebrough, 86, 92.
Williams v. Gartrell, 396.
Williams v. Hubbard, 513, 514.
Williams v. Jones, 218, 490.
Williams v. Kelsey, 87, 160, 550.
Williams v. Lowe, 480.
Williams v. Lowndes, 81, 152, 187.
Williams v. Merritt, 519.
Williams v. Robbins, 254, 551.
Williams vy. Thompson, 466.
Williams v. Tipton, 516.
Williams v. Williams, 444, 450.
Williamson v. Farley, 149, 152.
Willlamson v. Goodwyn, 86, 91.

Williamson v. Johnson, 498, 500, 572.

Willies v. Farley, 550.
Williford v. Conner, 453, 454.
Williston v. Jones, 164, 166.
Wills v. Monroe, 461.

Wilson, In re, 484, 435, 437, 440, 461,

567.
Wilson v. Ayer, 218, 251, 316, 481.

3*

296, 298, 321,

 

48a

Wilson v. Buchanan, 286, 294, 301,
328, 532.

Wilson vy. Britton, 398.

Wilson y. Butler, 97.

Wilson v. Eifler, 363, 397.

Wilson v. Ferguson, 379, 381, 417,
551.

Wilson y. Forsyth, 66, 214, 363, 371,
408, 548, 552.

Wilson v. Hillhouse, 555.

Wilson v. Hooper, 108, 168, 172.

Wilson vy. Horr, 85, 97, 533, 571, 578.

Wilson vy. Howser, 290.

Wilson v. Lott, 73, 78, 79, 96, 97,
173, 176, 180, 229, 238, 564,

Wilson Vv. Pearson, 362,

— v. Robertson, 255, 390, 391,

17,

Wilson v. Russell, 191, 242, 250, 256,
257.

Wilson v. Sheppard, 317.

Wilson & Wormal’s Case, 471, 476.

Wilt v. Franklin, 68, 102, 338, 347,
349, 350, 351, 352, 358, 376, 394
408.

Winamaker v. Bowes, 455.

Winchester v. Charter, 286, 824, 544,
549.

Winchester vy, Crandall, 376, 522.

Winchester v. Reid, 258, 272.

Winebrenner vy. Weisinger, 264, 287,
325, 511.

Wineland v. Coonce, 476.

Winer v. Warner, 74.

Winkley v. Hill, 84.

Winn v. Barnett, 325, 444, 517.

Winter v. Walter, 319.

Wintringham v. Lafoy, 408.

Wintringham vy. Wintringham, 499.

Wise v. Darby, 496.

Wise v. Moore, 229, 280.

Wise v. Tripp, 274, 477.

Wise v. Wimer, 363.

Wisner v. Farnham, 91, 97.

Wiswall v. Ticknor, 160, 165.

Witherden v. Jumper, 325.

Wolf v. Caruthers, 549, 553.

‘| Wolverhampton Bank v. Marston,

353, 358.

Wood y. Chambers, 230, 268.

Wood v. Cheshire, 242.

Wood v. Dixie, 68, 220.

Wood v. Gary, 496.

Weod v. Goff, 574.

Wood v. Hunt, 229, 280, 469, 572,
577.

Wood v. Jackson, 481.
48b

Wood vy. Lowry, 163.

Wood v. Robinson, 515.

Wood v. Savage, 250, 265, 312.

Wood v. Shaw, 92, 234, 235.

Woodbridge v. Perkins, 160, 212.

Woodburn v. Mosher, 414, 426.

Wooderman vy. Baldock, 137, 184,
187.

Woodham vy. Baldock, 82, 196.

Woodley v. Abby, 485.

Woodman v. Bodfish, 452.

Woodrow v. Davis, 212, 382.

Woods v. Bugbey, 169, 201.

Woods v. Timmerman, 396.

Woodson v. Pool, 284, 317.

Woodville v. Reed, 251. ~

Woodward v. Gates, 183, 191, 493,

Woodward v. Marshall, 347, 385,416.

Woodward v. Solomon, 457.

Woodworth v. Sweet, 316.

Wooley v. Edson, 207, 455.

Wooley v. Frey, 85.

Woolsey v. Urner, 4388.

Woolston’s Appeal, 286, 287.

Wooster v. Stanfield, 347, 863, 376,
410, 415.

Wooten v. Clarke, 161, 247, 462.

Wordall v. Smith, 135, 151, 173.

Work v. Ellis, 362, 415, 654.

Woorland v. Kimberlin, 221.

Worman v. Wolfersberger, 218.

Worrall v. Jacob, 313.

Worsley v. De Mattos, 72, 82, 123,
128, 230, 256.

Worth v. Northam, 452.

Worth vy. York, 266, 272.

Worthington v. Bullitt, 249, 294,
296, 298, 209, 302, 304, 574.

Worthington v. Shipley, 280, 285,
286, 293. ;

Wright v. Brandis, 282, 486.

Wright v. Crockett, 456, 464.

Wright v. Douglass, 265.

Wright v. Grover, 179, 211, 559.

 

TABLE OF CASES.

Wright v. Hancock, 86, 88, 94, 568,
573.

Wright v. Henderson, 322.

Wright v. Linn, 380, 542, 544, 551.

Wright v. Petrie, 264, 274, 510, 511,
615.

Wright v. Stannard, 86, 238, 303,
304, 317.

Wright v. Wheeler, 529.

Wright v. Wright, 444, 446.

Wrightman v. Hart, 96, 97, 529.

Wyatt v. Stewart, 160.

Wykoff v. Carr, 543,

Wyles v. Beals, 395, 433.

Wylie v. Basil, 315.

Wyman vy. Brown, 445.

Wyman v. Fox, 467.

Wynkoop v. Shardlow, 366.

Wynne v. Glidwell, 73, 395, 398, 548.

Yardley v. Arnold, 502, 555.

Yates v. Joyce, 507.

Yates v, Lyon, 355.

Yearsley’s Estate, 391.

Yoder v. Standiford, 79, 81, 84, 86,
91, 92, 98, 276, 534, 574,

York County Bank v. Carter, 219,
292, 287, 543.

Young v. Booe, 70, 400, 403, 412.

Young v. Dumas, 221, 222, 225, 244.

Young v. Frier, 512.

Young v. McClure, 170, 172.

Young v. Pate, 153, 212, 332, 472,
539.

Young v. Stallings, 98, 218, 222, 225,
226, 244.

Young v. White, 286, 296, 300.

Young v. Wilson, 257.

Zacharie v. Kirk, 153.

Zerbe v. Miller, 281, 257, 464, 542,
545, 555.

Zimmerman v. Lamb, 455, 549.

Zipcey v. Thompson, 493.
FRAUDULENT CONVEYANCES,
CHAPTER I.

HISTORY OF THE LAW OF FRAUDULENT CONVEYANCES.

Ortern or commercr.—In -the earliest stages of
society property has no value, and the transfer
of it from one to another does not give rise to
the idea of an obligation. There is no commerce,
and loans are unknown. Gaudent muneribus sed nec
data tmputant nec acceptis obligantur’ Fenus agitare
et in usuras extendere ignotum? Even after property
has acquired a value, there is at first no facility of inter-
course and no commerce. The difficulties in the way
of the transfer of property are very great, conveyances
are in a high degree ceremonious, requiring many sym-
bolical acts and a great number of witnesses. Not an
item of this ceremony can be safely omitted—not a
gesture, not a syllable, not a witness. If there is an
omission the conveyance is void. The early Roman law
affords a ready and apt illustration of the customs of
primitive times. The Roman mancipium or mancipatio
required the presence of the parties, the vendor and the
vendee, of five witnesses, and the /ibripens, who brought
with him a pair of scales to weigh the uncoined copper
money of ancient Rome.’ The vendor brought the prop-

 

1 Tacit Germ. c. 21.
2? Tacit Germ. c. 26.
* Maine’s Ancient Law, 198,
50 HISTORY OF THE LAW OF

erty which he intended to sell, and the purchaser at-
tended with the rough ingots of copper which served
for money. The property, with certain fixed formalities,
was delivered to the vendee, and the copper was weighed
by the Ubripens and passed to the vendor. In ancient
times this transaction, so long as it lasted, was called a
necum, and the parties were next. The earliest use of
the nexum was to give proper solemnity to the aliena-
tion of property. At that period, therefore, the ex-
change of property was merely barter. Contracts and
commerce were unknown."

TRANSITION FROM BARTER TO COMMERCE.—The next
step in the progress towards commerce is the rise of
contracts. These came naturally from conveyances.
If the property, under the primitive Roman law, was
transferred without the payment of the money, the
nexwm was finished, so far as the vendor was concerned.
When he had delivered the property he was no longer
nexus; but, in regard to the vendee, the nexwm con-
tinued. The transaction as to his part was incomplete,
and he was considered to be nevus. The same term,
therefore, at that period described the conveyance by
which the right of property was transmitted, and the
personal obligation of the debtor for the unpaid pur-
chase money. The next step in the line of progress was
a proceeding wholly formal, in which nothing was de-
livered and nothing paid, and thus executory contracts
were introduced.’ “ Neaxwm,” therefore, which originally
signified a conveyance of property, came insensibly to
denote a contract also, and ultimately the association
between this word and the notion of a contract became

 

* Maine’s Ancient Law, 309.
* Maine’s Ancient Law, 810.
FRAUDULENT CONVEYANCES. 51

so constant that a special term, mancipium or manci-
patio, had to be used for the purpose of designating
the true nexwm, or transactions in which the property
was really transferred. This illustration is drawn from
the Roman law, but appears to present the true and
natural theory of the transition from barter to commerce.
Conveyances are first in order of time; contracts, credit
and commerce come afterward. Barter is the primitive
mode of exchange, and precedes the era of commercial
enterprise.

SEVERITY OF ANCIENT Laws.—The commission of
fraud, however, depends upon the power which creditors
have over their debtors. The existence of commerce
alone is not sufficient. There must be some temptation
or impunity before frauds will be committed. If the
laws are severe and rigorous there will be no frauds;
if the laws are lax there will be a temptation, and
trickery and dishonesty will arise. In primitive times
the laws were exceedingly harsh. If the debt was not
paid the creditor had the right to reduce his debtor to
slavery. Such was the ancient law in Greece, Italy,
Asia’ and Germany.’ The custom was, in fact, so uni-
versal that it may be regarded as a part of the jus gen-
tium barbarorum.

Roman taw.—The Roman law was especially severe.
The best resource of a debtor who found himself involved
in a debt which he could not pay was to sell himself to
his creditor, on the condition that, unless the debt was
previously discharged, the creditor at the expiration of

 

 Grote’s Hist. of Greece, vol. 3, pp. 95, 110, 159.
° Hallam’s Hist. Middle Ages, vol. 1, pp. 196, 817; Hume’s Hist. of
Eng. vol. 1, p. 176.
52 HISTORY OF THE LAW OF

a stated term should enter into the possession of his
purchase. When the day came the creditor claimed
possession and the praetor awarded it, and the debtor, thus
given over to his purchaser, passed into his power. If the
debtor, resolved not to sacrifice his liberty by his own
act, refused thus to sell himself, he risked a fate still
more fearful. If he was unable to discharge the claim
within thirty days after its justice had been allowed,
his creditor might arrest him and bring him before the
pretor, and, if no one then offered to be his security,
he was given over to his creditor, who kept him in pri-
vate custody, bound with a chain of not less than fifteen
pounds weight, and fed him with a pound of corn daily.
If he still could not or would not come to any terms
with his creditor, he was thus confined for sixty days,
and during this period he was brought into the comitium
before the preetor on three successive market days, and
the amount of his debt declared, in order to see whether
any one would yet come forward in his behalf. On the
third market day, if no friend appeared, he was either
put to death or sold as a slave into a foreign land
beyond the Tiber; or, if there were several creditors,
they might actually cut his body into pieces, and no
creditor incurred any penalty by taking a part greater
or smaller than in proportion to his debt.t

Moprrn taw.—Villenage was the resource of insol-
vent debtors in the Middle Ages, but after the insti-
tutions of the country became settled this practice fell
into disuse. It was inconsistent with the duties of war-

 

7 A, Gellius, XX, 1, § 45, e¢ seg; Gibbon’s Hist. of Rome, vol. 4, 372;
Niebuhr’s Hist. of Rome, vol. 2, p. 599; Arnold’s Hist. ot Rome, p. 52.

* Hallam’s Hist. of Middle Ages, vol. 1, pp. 196, 817; Hume's Hist, of
Eng. vol. 1, p. 176,

‘
FRAUDULENT CONVEYANCES. 53

like service to which every man was bound under the
feudal system. Imprisonment for debt, however, took
the place which had formerly been filled by the power
to enslave. This was unknown at the common law
except in cases of trespass with force? It was first
given by statute against bailiffs,* and was subsequently
extended by other acts‘ Although this power was
not as stern as the Roman law, yet it was always
severe, and even harsh.’

Errect or R1corous Laws.—The effect. of these rig.,
orous provisions, though contrary to the dictates of a
humane policy, and repugnant to the teachings of the
wisdom of an enlightened age capable of discriminating
between fraud and misfortune, may be readily traced.
The law of fraudulent conveyances is not to be found
in the Twelve Tables, It had its origin in a later age,
when the right of the creditor to enslave his debtor had
been abrogated. The cases upon the subject in England
prior to the commencement of the present century are
comparatively few. On the other hand, the great
expansion and development of this branch of the law in
America is undoubtedly due to the abolition of impris-
onment for debt and the absence of a general bankrupt
law. It is also worthy of notice that fraud abounded
even in England as long as debtors could fly to privi-
leged places and be there exempt from arrest and the
service of civil process.

 

12 Bell Com. 538.

7 1 Reeve’s Hist. by Fin. 511; 2 Ib. 71; 2 Beli Com. 538; 2 Kent Com.
898; Herbert’s Case, 3 Co. 11.

* 1 Reeve’s Hist. by Fin. 511.

4 2 Reeve’s Hist. by Fin. 71; 2 Kent Com. 398.

° 2 May’s Const. Hist. 268; 1 Benton’s Thirty Years in Sen. 291.
54 HISTORY OF THE LAW OF

RoMAN LAW OF FRAUDULENT convEraNnces.—The
Roman law is the oldest law upon the subject of fraud-
ulent conveyances, and embodies all the leading princi-
ples. Art pretor: Quae fraudationis causa gesta erunt,
cum eo qui fraudem non ignoraverit de his curatori bon-
orum vel e cut de ea re actionem dare oppertebit infra
annum quo experiundi potestas fuerit, actionem dabo ;
idque etiam adversus ipsum qui fraudem fecit, servabo.
Haec verba generalia sunt et continent, in se omnem om-
nino in fraudem factam vel alienationem vel quemcun-
gue contractum; nam late ista verba patent. Hoe
edictum eum coercet qui sciens eum in fraudem credit.
orum hoc facere, suscepit quod in fraudem creditorum
fiebat. Quare si quid in fraudem creditorum factum sit,
st tamen is qui cepit ignoravit, cessare videntur verba
edicti2 Simili modo dicimus, et si cut donatum est non
esse guerendum an sciente eo cut donatum gestum sit,
sed hoc tantum an fraudentur creditores® Sciendum,
Julianum seribere, eoque jure nos ueti, ut gui debitam
pecuniam recepit antequam bona debitoris possidentur,
quamvis sciens prudensque solvendo non esse recipiat, non
timere hoc edictum; sibi enim vigilavit’A Qucesitum est
an secundus emptor conveniri potest? Sed verior est
Sabini sententia bona fide emptorem non teneri; quia
dolus et duntaxat nocere debeat qui eum admisit.2 These
principles are sound law even at the present time.

DeRIvVATION oF THE ANGLICAN Law.—Anglican con-
stitutional® and criminal law’ is derived from the Anglo-

 

1 Dig. Lib. 42, tit. 9, § 1.
? Dig. Lib. 42, tit. 9, § 8.
® Dig. Lib. 42, tit. 9, § 11.

* Dig. Lib. 42, tit. 9, § 7.

“Dig. Lib. 42, tit. 9, § 9.

® Stubbs’ Select Charters, Part I.

"1 Reeves’ Hist. by Fin. 24, note C; 39, note C.
FRAUDULENT CONVEYANCES. Bd

Saxons, but Anglican civil law is founded upon the
Roman law.’ By this it must not be understood that
Anglican civil law is merely a servile copy or imitation
of the Roman law, but that it has borrowed the princi-
ples of the latter by the nobler process of assimilation
and incorporation. How far the law of fraudulent con-
veyances is founded upon the Roman law it is impos-
sible to determine, on account of the paucity of the
materials for forming an opinion, yet the similarity of
the principles raises a suspicion which is strengthened
by the other circumstances connected with the early
history of Anglican law. Derivation, however, is not
necessary to account for the similarity, for the law of
fraudulent conveyances is founded upon the principles
of common honesty, demanded by and adapted to the
exigencies of commerce, and, if every memorial of the
present law were blotted out, it would spring up again
in nearly its present shape.

Common Law.—The cases that were decided prior to
the adoption of any statute upon this subject are few
and meagre; but, nevertheless,» they are sufficient to
show that the law of fraudulent conveyances is a part
of the common law. A fraudulent conveyance was void
as against creditors, and the property might be taken on
execution.” Whether a gift was fraudulent was deemed
a question of fact. After the death of the debtor, the
fraudulent grantee could be held as executor de son tort,’
or relief might be had in equity.” These principles are

 

"1 Reeves’. Hist. Introduction by Fin.

? As fol. 101, pl. 72; Rol. Abr. Covin. 549; Brook, Abr. 139; Collu-
sion pl. 9; Fitz. Abr. Execution, 108.

°13 H. IV, 4, pl. 9.

413 H. IV, 4, pl. 9, Rol. Abr. Covin. 549,

° 16 Edw. IV, 9.
56 HISTORY OF THE LAW OF

sufficient to show that the foundation of the existing
law upon the subject had already been laid, and per-
haps in the course of time the necessities of commercial
enterprise and the quickened sense of justice would have
reared a symmetrical system without legislative aid.

Srarures.—The statutes form an important part of
this branch of the law, and show the peculiar shape which
fraud assumed in ancient times. Uses had gradually been
developed, and were becoming common. No device could
be better adapted to facilitate a fraudulent design, for
by it the legal title could be placed in another, and
the profits only which were not liable to execution at
law could be reserved to the debtor.’ The first statute
upon the subject in its recitals sets forth the evil devices
of the times in full. It declares as a fact and a matter
of notoriety that debtors gave their tenements and
chattels to their friends by collusion, thereof to have
the profits at their will, and afterwards fled to privi-
leged places, and there lived a great time, of high coun-
tenance, till the creditors were compelled to take a
small part of their debts and release the balance.’ The
next statute? upon this subject recites the same practice
of a conveyance to the use of the debtor and a with-
drawal to a privileged place, where he could not be
served with process, and provides a means of obtaining
a judgment after a proclamation once a week for five
successive weeks at the gate of the privileged place, and
thus reaching the property of the debtor, whether held
in trust or not. The third statute in the order of events
sets forth the same practice of a fraudulent gift and a

 

12 Reeves’ Hist. by Fin. 233, 457.
> 60 E. III, R. 6.
2K. 2,¢. 8.
FRAUDULENT CONVEYANCES. 57

seeking of the protection of a sanctuary or other privi-
leged place. The enactment itself is a singular conclu-
sion to its recitals, for, as if it were designed by one
vigorous stroke to cut up fraud by the roots, it abolishes
all deeds of gift of goods and chattels made to the use
of the grantor.!

IwportTaNcE or THE Srarutes.—These statutes and
their recitals are important, for they show the form as-
sumed by fraud in those early times, and throw light
upon some of the expressions used by the courts in later
times. If there had never been a fraudulent conveyance
to the use of a debtor, the doctrine of secret trusts would
never have arisen. It is to conveyances of this class
that Coke refers when he says: “ Every gift made upon
a trust is out of this proviso, for that which is, betwixt
the donor and donee, called a trust, per nomen speciosum,
is, in truth, as to all the creditors, a fraud, for they are
thereby defeated and defrauded of their true and due
debts.” It has been said that the act of 50 Edw. III, c. 6,
is not declaratory of the common law, upon the ground
that if the same principles had prevailed at the common
law, the statute was in vain, and would never have been
made. This doctrine would not be accepted now,
though it must be admitted that this multiplication of
statutes raises grave doubts as to the vigor and force
of the principles acknowledged at the common law upon
this subject. If the principles which are now recognized
and enforced had been adopted and acted on at common
law, there would have been no grievous evils to redress,

 

13H. 7%,c. 4. Finlason suggests that this is merely a declaratory act.
3 Reeves’ Hist. by Fin. 143.

? Twyne’s Case, 3 Co. 80.

* Lyte v. Perry, Dyer, 49 C.
58 HISTORY OF THE LAW OF

and legislative interferences would not have been neces-
sary. The fact that statutes were passed plainly shows
that there were either doubts as to what the law was or
a lack of vigor in enforcing it.

MERELY DECLARATORY.—The statute of 18 Eliz.,¢. 5,’
is the last in the series, and is the foundation of all the
modern law of fraudulent conveyances. It was extended
to Ireland by 10 Car. I, sess. 2, cap. 3, and is in force in
Maine, New Hampshire, Massachusetts, Delaware, Penn-
sylvania, Maryland, South Carolina and Jowa. The
various statutes in the other States are modeled after it,
and in the main are simply a reenactment of it. In
this respect the development of the Anglican law pre-
sents an analogy to the Roman law. Roman law was
founded upon an edict of the pretor; Anglican law is
founded upon a legislative enactment. This statute, how-
ever, is merely declaratory of the common law.’ By this
expression the courts probably do not mean to say more
than that the statute is founded in common reason, and
common reason has justly been held to be common law.’
As far as the actual practice was concerned, it probably
would be more strictly accurate to say that the principles
of the common law, as now understood, are so strong
against fraud in every shape that they will attain every
end proposed by the statute.*

ComMMON LAW sTILL Iv ForcE—This doctrine is of
practical importance, for unless there is a conflict between

 

* Made perpetual by 29 Eliz. c. 5.

* Co. Litt. 76, a. 290 c.; Twyne’s Case, 3 Co. 80; Hamilton v. Russell, 1
Cranch. 309; Peck v. Land, 2 Kelly, 1; Clements v. Moore, 6 Wall, 299;
Hudnal v. Wilder, 4 McCord, 294.

° 27 H. 8, fol. 10.

* Cadogan vy. Kennett, 2 Cowp. 432.
FRAUDULENT CONVEYANCES. 59

the provisions of a statute and those of the common law
relating to the same subject matter, or an evident intent
of the legislature to repeal the common law, the latter
is considered to be still in force. Consequently, as the
act is merely declaratory, resort may always be had to
the principles of the common law whenever the statute
fails to reach a case of fraud! The act itself is not
affected by this doctrine, and will in general be received
as a true declaration of what the law was,> but, wher-
ever the statute is ineffective, either through a change
of custom, or the introduction of anew kind of property,
or the concoction of some new device, there the common
law intervenes with its pure and elevated principles of
morality and justice, and enforces the dictates of common
honesty and common sense. In other words, the common
law supplements the statute to the end that justice may
be done and every species of fraud suppressed.

LiseraL construction.—The statute is established
for the suppression of fraud, the advancement of justice
and the promotion of the public good. Consequently,
it should be liberally and beneficially construed to sup-
press the fraud, abridge the mischief and enlarge the
remedy.* It must not, however, be so strained as to
make it receive an interpretation which it was not
intended to bear. Such a construction, moreover, is not
to be made in support of creditors as will make third
persons sufferers when they act in good faith.’ These

 

‘Blackman vy. Wheaton, 13 Minn. 326; Fox v. Hills, 1 Conn. 295;
State v. Fife, 2 Bailey, 337; Lillard v. M’Gee, 4 Bibb. 165.

* Davis v. Turner, 4 Gratt. 422.

* Clark v. Douglass, 62 Penn. 408.

‘ Twyne’s Case, 3 Co. 80; Gooch’s Case, 5 Co. 60; Cadogan v. Ken-
nett, 2 Cowp. 432; McCulloch v. Hutchinson, 7 Watts, 434,

* Cadogan v. Kennett, 2 Cowp. 482.
60 HISTORY OF THE LAW.

principles are adopted in all the cases, and run through
every branch of the law of fraudulent conveyances.
The statute receives a fair and liberal construction to
carry out the plain intent of the legislature, yet inter-
pretation is not carried to such an extreme as to warp it
from its true meaning. Rather than give a strained
construction to any part of it, the courts prefer to go
back to the liberal principles of the common law. In
this mode the will of the legislature is carried out, and
the principles of the law modified to meet the varying
wants of a progressive civilization.
CHAPTER IL

WHAT CONSTITUTES A FRAUDULENT CONVEYANCE.

Owner’s ABsoLUTE Dominion ovER HIS PRropERTY.—
By virtue of the absolute dominion which every one
has over his own property, he may, according to his
good will and pleasure, and within the limits prescribed
by law, make any disposition of it which does not in-
terfere with the existing rights of others.t The power
of courts of justice to interfere with, or in any manner
control such disposition, exists only when the right is
exercised to the prejudice of third persons. In other
respects, he may act according to the dictates of his
pleasure, interest, or even caprice.? He is permitted to
exercise the most liberal and extended discretion as to
the time and manner of disposing of his property, in-
vesting the proceeds and collecting his debts, provided
he exercises that discretion fairly and honestly in refer-
ence to the right of his creditors to be paid out of the
same, and without any view or intention of delaying,
hindering, or preventing them from obtaining their law-
ful dues and demands. But wherever he exceeds these
limits of his legitimate authority and power over his
property and funds, the exercise of the power becomes
unconscientious and inequitable, and the law then con-
trols and regulates it in such a manner as to compel
him to do justice to his creditors. Such an unconscien-

 

1 Sexton v. Wheaton, 8 Wheat, 229; Thomson v. Dougherty, 12 8. &R.
448,
? Pope v. Wilson, 7 Ala, 690.
62 WHAT CONSTITUTES A

tious exercise of power by a debtor is considered a
fraud upon his creditors.’

Owner’s Assotute Domiyion wot DivERTED BY
IypesrepNess.—He is not deprived of his power and
dominion over his property by either indebtedness, or
even insolvency.? His creditors have no right to insist
that his resources shall remain in any given shape. He
may exchange his property for other property, or sell it
and put the proceeds in his pocket or apply them in his
discretion, to his debts, his purchases, or his mainte-
nance. He has the right to manage, control, mortgage,
pledge, and deal with it, and enter into business con-
tracts in relation to it, in such way and manner as he
deems will best conduce to its preservation and in-
crease. His general creditors have no authority to re-
strain such. exercise of his dominion over it, and can
only resort to the personal remedies given by law for
the coercion of payment.’ If he is prosecuting an ac-
tion of ejectment, he may compromise with his adver-
sary in any manner he thinks proper. Simple insol-
vency does not work a dissolution of a partnership, or
divest the partners of their dominion over the partner.

ship property.°
Ownerr’s AssoLtute Dominion INVOLVES THE Rieut

or ANOTHER To Purcuase.—His right to sell, or other.
wise dispose of his property, involves the correspond-

 

1 Weed vy. Pierce, 9 Cow. 722; Pope v. Wilson, 7 Ala. 690.

* Frank v. Peters, 9 Ind. 844; Waddams v. Humphreys, 22 Ill. 661
Barrow y. Bailey, 5 Fla. 9.

* Davis v. Turner, 4 Gratt. 422; Paper Co. v. Willett, 1 Robt. 181;
Stanley v. Robbins, 86 Vt. 422; Frank vy. Levie, 5 Robt. 599; Carter v.
Neal, 24 Geo. 346. :

* Richardson v. Stewart, 28. & R. 84.

° Siezel v. Chidsey, 22 Penn. 279.
FRAUDULENT CONVEYANCE. 63

ing right of another to purchase, or receive it.! The
only limitation upon the exercise of these rights, is that
the transfer shall be in good faith. Creditors who take
no specific security from the debtor, trust him upon the
general credit of his property and a confidence that he
will not diminish it to their prejudice. They therefore
have an equitable claim upon and interest in his prop-
erty, so that any disposition of it in violation of their
confidence is a fraud upon their rights.’ If another re-
ceives it with notice of the fraud, he is aiding the
debtor to cheat his creditors, and this the law never
tolerates.® A person desiring to purchase, however, has
a right to trust to the debtor’s dominion over his prop-
erty, and if he purchases in good faith for a valuable
consideration, he should be protected. ‘ Having parted
with his money in good faith, he holds the legal title,
and has an equal equity with the creditors, and, conse-
quently, has a paramount right to retain the property.‘

Tae Exvements or a Fravpvurent Conveyancr.—
The statute is founded upon these principles. It viti-
ates all transfers made “to the end, purpose, and intent
to delay, hinder, or defraud creditors,” but protects all
“estates or interests which are conveyed on good con-
sideration and bona fide.” An inquiry into the validity
of a transfer under the statute, therefore, involves three
points: the existence of an intent to delay, hinder, or
defraud, the consideration, and the bona fides of the
transfer.

 

> Barrow v. Bailey, 5 Fla. 9.

? Eppes v. Randolph, 2 Call, 103; Seymour y. Wilson, 19 N. Y. 417.
5 Cadogan v. Kennett, 2 Cowp. 482.

* Eppes v. Randolph, 2 Call, 103; Seymour y. Wilson, 19 N. Y. 417.
CHAPTER IIL.
FRAUDULENT INTENT.

Tar CHaracter or THE Ivrent.—The statute renders
void all feoffments, gifts, grants, alienations, conveyances,
bonds, suits, judgments and executions which are devised
and contrived of malice, fraud, covin, collusion or guile
to the end, purpose and intent to delay, hinder or de-
fraud creditors aud others of their just and lawful ac-
tions, suits, debts, accounts, damages, penalties, forfeit-
ures, heriots, mortuaries and reliefs. It will be observed
that there is no other description of the intent in the
enacting clause except by reference to the preamble
“the intent before declared and expressed.”’ ‘This ref-
erence however, makes the intent essential to invalidate
the transaction, by thus incorporating it in the body of
the statute. The introduction of the term “purpose”
into the Act does not impart to it any additional po-
tency. It is only a synonym for design, intention—a
mere expletive, intended to convey the idea which the
Legislature had in view more strikingly and might be
stricken from the Act without affecting its interpretation
in any manner.

WHAT KIND OF FRAUD IS WITHIN THE sTATUTE.—No
fraud is within the statute unless it is directed against
those who have just and lawful actions, suits, debts, ac-
counts, damages, penalties, forfeitures, heriots, mortuaries,

 

* Walker v. Burrows, 1 Atk. 93. .
* Anderson y. Hooks, 9 Ala, 704,
FRAUDULENT INTENT. 65

or reliefs, An intent to deceive and defraud the public
without any intent to delay, hinder of defraud the cred-
itors of the grantor does not bring a conveyance within
the act." The fraud, moreover, must be a fraud against
general creditors and not a mere intent to defeat a prior
unrecorded deed.?

It must also be aimed at creditors and not at the
grantor. The creditors of a party defrauded have no
right even though the fraud has the effect to diminish
his means of paying them, to look into such fraud or
unravel it. It is for him and him alone, to do so and
if he chooses to acquiesce in the fraud or suffers himself
to be concluded of his right to investigate or undo it,
his creditors must be content to abide by the legal
rights remaining in him. There is a manifest distinction
between a fraud upon the debtor and a fraud upon
creditors. In the one case the debtor is the victim and
guilty of no wrong, while in the other he is himself ei-
ther in fact or in law the perpetrator of the fraud. In
the latter case the creditors who seek to avoid a sale or
transfer do not represent the debtor, but exercise rights
paramount to his. In the former case the remedy be-
longs to the debtor alone and they can not interfere
when they are not in the contemplation of the author of
the wrong and are only affected ¢onsequentially.® The
fraud, moreover, must lie in the transfer and not in the
creation of the debt of the creditor who impeaches it.*
The fraudulent intent must also be an intent to commit a
fraud on creditors by making the transfer and not by

 

1 Griffin v. Stoddard, 12 Ala. 783.

* Burgin v. Burgin, 1 Ired. 453.

’ Pettus v. Smith, 4 Rich. Eq. 197; Garretson y. Kane, 3 Dutch 208;
Eaton v. Perry, 29 Mo. 96; Hovey vy. Holcomb, 11 Ill. 660; Vide Van
Deusen v. Frink, 19 Pick. 449.

* Horwitz v. Ellinger, 31 Md. 492. Mattison v, Demarest, 4 Robt. 161.

5
66 FRAUDULENT INTENT.

some entirely independent act which might and probably
would have been done had no transfer been made.’

Wuat constituTEs FRAUD.— Fraud consists of un-
lawful conduct that operates prejudicially upon the
rights of others” To defraud is to withhold from
another that which is justly due to him, or to deprive
him of a right by deception or artifice? A fraud
upon creditors consists in the intention to prevent them
from recovering their just debts by an act which with-
draws the property of the debtor from their reach.* It
does not consist in mere intention, but in intention
acted out.” In a fraudulent conveyance there is general-
ly an intention to secure some interest in the property
to the debtor or some future right in it to the prejudice
of the creditors,® and therefore it is sometimes said that
a fraudulent instrument is one which the parties do not
intend to have in operation as a real instrument accord-
ing to its apparent character and effect." Dolus est machi-
natio cum aliud dissimulat aliud agit’ It is manifest,
however, that an instrument may be fraudulent although
it is intended to cperate as a real transfer as in the case
of a voluntary conveyance by an insolvent debtor. A
feigned conveyance is a fraudulent conveyance, but a
fraudulent conveyance is not necessarily fictitious.

DELAY AND HINDERANCE.—It is not necessary, how-
ever, that there should be an intent to defraud in order

 

* Wilson v. Forsyth, 24 Barb. 105.

2 Bunn v. Ahl, 29 Penn. 387.

? Burdick vy. Post, 12 Barb. 168; 8. c. 6 N. Y. 522.

* McKibbin v. Martin, 64 Penn. 352; Ala. Ins.Co. v. Pettway, 24 Ala. 544.

* Bunn v. Ahl, 29 Penn. 387.

® Northampton Bank y. Whiting, 12 Mass. 104; Belmont y. Lane, 22.
How. Pr. 365.

 Eveleigh v. Purrsford, 2 Mood & Rob. 589; Doe yv. Routledge, Cowp.
705.

® Rex v. Nottingham, Lane, 42,
FRAUDULENT INTENT. 67

to render a transfer void. The statute makes void all
conveyances made with “intent to delay, hinder or de-
fraud creditors.” This language implies that the intent
to defraud is something distinct from the mere intent to
delay or hinder and that the latter alone will vitiate a
transfer." The term fraud imports something of a more
vicious character than the mere production of a delay of
satisfaction. There is no distinction however, between
delaying and hindering. A person who is hindered is
effectually delayed. To hinder any one in his course is
necessarily to delay him. Many such pleonasms are to
be found in old English statutes where they were intro-
duced for caution’s sake more than with any precise
idea as to what they were intended to effect.2

Wuat CONSTITUTES A HINDRANCE OR DELAY.— The
term delay refers not merely to time, but to the inter-
position of obstacles in the way of creditors, with the
fraudulent intent to hinder and delay.’ The statute is
to be construed according to its reasonable intent and
object, and by a reasonable construction only such hin-
drance and delay as will operate as a fraud, come within
its operation. A delay for all time renders a transfer
void, and the principle is the same when it is sought for
a limited time. The difference is in degree only. The
hindrance or delay of creditors is reprobated by the
statute without regard to the duration of the hindrance
or delay.” The time for the performance of a contract

 

* Pilling vy. Otis, 13 Wis. 495; Planck v. Schermerhorn, 3 Barb. Ch.
644 ; Sutton v. Hanford, 11 Mich, 513; Davenport v. Cummings, 15 Iowa,
219; Burt v. McKinstry, 4 Minn. 204.

? Read vy. Worthington, 9 Bosw. 617; Burdick y. Post, 12 Barb. 168;
8. c. 6 N. Y. 522. *

* Linn v. Wright, 18 Tex. 317; Hefner v. Metcalf, 1 Head, 577.

‘ Hoffman vy. Mackall, 5 Ohio St. R. 124.

° Quarles v. Kerr, 14 Gratt. 48; Sutton v. Hanford, 11 Mich, 513.
68 FRAUDULENT INTENT.

is both in morals and in law an essential part of the
contract itself, and a debtor who attempts to postpone
the time of payment, endeavors to deprive his creditors
of a valuable right, and thus it may justly be said that
a positive intent to defraud always exists where the in-
ducement to a conveyance is to hinder and delay cred-
itors, since the right of creditors to receive their de-
mands when due, is as absolute as their right to receive
them at all! Therefore, where the debtor places his
property beyond the reach of legal process, so as to
delay creditors, this is a legal fraud, although he may
intend ultimately to appropriate it for the benefit of all
ora part of them.? The law provides a mode for the
appropriation of a debtor’s property to the payment of
his debts, and the interposition of any obstacle to pre-
vent such appropriation in the due course of legal pro-
ceedings, is a delay and hindrance within the meaning
of the statute. The obstacle, however, must be inter-
posed between the creditors and the property of tke
debtor. If, after a transfer, the property does not,
either in fact or in contemplation of law, belong to the
debtor, or if the interest reserved is merely difficult to
reach on account of its peculiar character, then there is
no hindrance and delay within the statute. It is for
this reason that a preference,? or an assignment for the
benefit of creditors,* may be made for the express pur-

 

* Nicholson v. Leavitt, 6 N. ¥. 510; 8.c. 10 N. Y.591; s.o. 4 Sandf. 252.

* 'Wheelden vy. Wilson, 44 Me. 1; Borland v. Mayo, 8 Ala. 104; Kimball
v. Thompson, 4 Cush. 441; Stovall v. Farmers’ Bank, 8 8. & M. 305; Mc-
Lean v. Lafayette Bank, 3 McLean, 587.

* Holbird v. Anderson, 5 T. R. 285; Woods y. Dixie, 58 E. OC. L. 892;
8.c. 7 Q B, 892; Darvill v. Terry, 6 H. & N. 807; Hall v. Arnold, 15 Barb.
599; Hartshorne v. Eames, 31 Me. 98; Gassett v. Wilson, 3 Fla. 235;
Wheaton v. Neville, 9 Cal. 41.

* Riches v. Evans, 9 C. & P. 640; Johnson y. Osenton, L. R. 4, Ex. 107;
Wilt v. Franklin, 1 Binn, 502; Jackson y. Cornell, 1 Sandf, Ch. 348; Hor-
witz v. Ellinger, 31 Md. 492,
FRAUDULENT INTENT. 69

pose of defeating an execution. The creditor may be
baffled, or even eventually lose his debt, but there is
no obstacle interposed between him and any property
which belongs to the debtor.

How THE FRAUDULENT INTENT IS ASCERTAINED.—
The test words by which the validity of a transfer is
tried are, “to the end, purpose, and intent to hinder,
delay or defraud.” The presence of this intent is essen-
tial to render a conveyance void! The transfer must
also be “devised and contrived of malice, fraud, covin,
collusion or guile,” and the intent must be marked by
these characters or one of them.? Every contrivance,
however, to the intent to delay, hinder or defraud cred-
itors, is malicious. If the hindrance of creditors forms
any part of the actual intent of the act done, so far the
act is as against them a malicious contrivance.’ In some
cases the inference of fraud is a mere question of fact,
and being a question of fact, can only be found by the
tribunal which determines questions of fact.t When
the existence of the fraudulent intent is thus a question
of fact, it must, in an action at law, be expressly found
by the jury, for the court can not infer it.2 When fraud
is thus a question of fact, it is called actual fraud, or
fraud in fact. :

 

? Bibiy v. Hood, 3 Mo. 290.

? Ewing v. Runkle, 20 Ill. 448; Meux v. Howell, 4 East. 1,

* Hafner vy. Irwin, 1 Ired. 490.

4 Allen v. Wheeler, 4 Gray, 123; Ewing v. Gray, f2 Ind. 64; Maples v.
Burnside, 22 Ind. 139; Banfield v. Whipple, 14 Allen, 18; Green y. Tan-
ner, 8 Met. 411; Bagg v. Jerome, 7 Mich. 145; Jackson y. Mather, 7
Cow. 301. .

° Tyrer v. Littleton, 2 Brownl. 187; Crisp v. Pratt, Cro. Car. 549; Ox-
ford’s Case, 10 Co. 58 b; Seward v. Jackson, 8 Cow. 406; 8. c. 5 Cow. 67;
Ridler v. Punter, Cro. Eliz. 291; Marden v. Babcock, 2 Met. 99; Ridgway
v. Ogden, 4 Wash. C. C. 189; Charlton v. Gardner, 11 Leigh. 281,
70 FRAUDULENT INTENT.

Fravp inv taw.—The existence of the fraudulent
intent is not, however, always a question of fact. It is
sometimes a question of law. Every man is presumed
to intend the necessary consequences of his act, and if
an act necessarily delays, hinders or defrauds creditors,
then the law presumes that it is done with a fraudulent
intent! The legal effect of a written instrument is also
a question of law, and the intent of the parties in mak-
ing it may be gathered from its face, and where the
natural and inevitable consequence of its provisions is
to delay, hinder or defraud creditors, it is void as a con-
clusion of law.2 When the facts on which the fraud
depends are well pleaded on one side and admitted by
demurrer or otherwise upon the other, the existence of
the fraudulent intent is also a question of law.®

To justify the inference of a fraudulent intent, how-
ever, when no fraud in fact is proved, there must be
creditors who may be delayed, hindered or defrauded,
and the necessary consequence of the act must be to
produce such delay, hindrance or fraud.* In the con-
struction of written instruments, also, the existence of
fraud is a question of fact whenever their terms and
stipulations are by possibility compatible with good
faith, and have upon their face the essential elements of
a legal contract.” Whenever fraud is thus the inevita-

 

* Babcock v. Eckler, 24 N. Y. 623; Potter v. McDowell, 81 Mo. 62;
O'Connor y. Bernard, 2 Jo. 654; Freeman y. Pope, L. R. 5, Ch. 588; 8. c.
L. R. 9 Eq. 206; Norton vy. Norton, 5 Cush, 524; Freeman vy. Burnham, 86
Conn, 469.

* Mitchell v. Beal, 8 Yerg. 134; Ashurst v. Martin, 9 Port. 566; Shel-
don y. Dodge, 4 Denio, 217; Griffin v. Cranston, 10 Bosw. 1; s. c. 1 Bosw.
281; Young v. Booe, 11 Ired. 347; Johnson v. Thweat, 18 Ala. 741; Bi-
gelow y. Stringer, 40 Mo. 195; Gere v. Murray, 6 Minn. 805; Goodrich v.
Downs, 6 Hill, 438; Bartels v. Harris, 4 Me. 146.

® Gerrish v. Mace, 9 Gray, 250.

* Pope v. Wilson, 7 Ala. 690.

* Jones vy. Huggeford, 8 Met. 615; Hastings v. Baldwin, 17 Mass. 552.
FRAUDULENT INTENT. GL

ble consequence of an act or instrument, it is called con-
structive fraud, or fraud in law.t A constructive fraud
is an act which the law declares to be fraudulent with-
out inquiring into the motive, not because arbitrary
rules have been laid down upon this subject, but be.
cause certain acts carry in themselves irresistible evi-
dence of fraud.

No DIFFERENCE BETWEEN FRAUD IN FACT AND FRAUD
mv raw.—There is no difference in principle between
fraud in fact and fraud in law. Where the direct and
inevitable consequence of an act is to delay, hinder or
defraud creditors, the presumption, at once conclusively
arises that such illegal object furnished one of the mo-
tives for doing it and it is thus upon this ground held
to be fraudulent. The result is the same when the ille-
gal design is established as a question of fact. The in-
quiry is as to the intention of the debtor. When it
appears that among the inducements operating upon
him there is an intention to violate any of the duties
owing by him to any of his creditors, the transfer is
tainted and may be set aside at the suit of any creditor?

LeeaL, Not MoRAL IntENT.—The statute refers to a
legal and not a moral intent, for one man’s right does not
depend on another man’s moral sense. The moral sense
is much stronger in some men than in others. The stat-
ute therefore supposes that every one is capable of per-
ceiving what is wrong and if he does what is forbidden,
intending to do it, he is not allowed to say that he did
not intend to do a forbidden act. A man’s moral per-

 

? Lukins y. Aird, 6 Wall. 78.

° M’Broom vy. Rives, 1 Stew. 72.

* Oliver Lee & Co.’s Bank y. Talcott, 19 N. Y. 146; Gere v. Murray, 6
Minn. 305.
72 FRAUDULENT INTENT.

ceptions may be so perverted as to imagine an act to be
fair and honest which the law justly pronounces fraudu-
lent and corrupt; but he is not therefore to escape from
the consequences of it. The law must have a more cer-
tain standard for measuring men’s intents than each in-
dividual’s varying and capricious notions of right and
wrong. Whatever a man’s opinions of his own acts
may be, there are certain rules founded in experience
and established by law for determining the validity of
transfers under the statute and if these rules are trans-
gressed, they are void without regard to the opinion of
the parties to it.’ Fraud therefore, does not necessarily
impute a corrupt or dishonorable motive. Parties may
do what they consider perfectly fair for the purpose of
preventing a sacrifice merely and with the intention of
paying all the creditors ultimately, or may be animated
merely by motives of affection or compassion ;* but the
law does not sanction any contrivance for either de-
feating or delaying creditors.’

FRAvp Is A QUESTION oF LAW.—It follows, therefore,
that what constitutes fraud is a question of law. It is
the judgment of law upon facts and intents.* Fraud is
expressive of a legal idea and admits of a legal defini-
tion. It is therefore a matter of law. The expression
that when there is no dispute about the facts fraud is a
question of law,°is not strictly accurate for the intent is

 

? Potter v. McDowell, 81 Mo. 62; Grover v. Wakeman, 11 Wend. 187;
8. c. 4 Paige. 23.

7 Sturdivant v. Davis, 9 Ired. 365; Gardiner Bank vy. Wheaton, 8 Me.
378; Briggs v. Mitchell, 60 Barb. 288; Trimble vy. Turner, 13 S. & M. 348;
Flood v. Prettyman, 24 Ill. 597.

5 Enders vy. Swayne, 8 Dana, 103.

*Worseley v. Demattos, 1 Burr. 467; Sturtevant v. Ballard, 9 Johns.
837; Planters Bank y. Borland, 5 Ala. 531.

° Sturtevant v. Ballard, 9 Johns, 387; Divver v. McLaughlin, 2 Wend.
596,
FRAUDULENT INTENT. %3

a material fact,’ and this is not in all cases an inference
of law. But when the intent is ascertained the law
pronounces whether it is fraudulent and covinous.?
Whenever the transfer is tainted with actual and not
constructive fraud, it is the province of the tribunal for
the ascertainment of facts to find the actual intent. In
that sense fraud is sometimes called a mixed question of
law and fact.? But it is never exclusively one of fact.
It has never been held that the jury may give to the in-
tentions such effect asto them may seem proper in each
case. That the law declares and the security of credi-
tors depends upon the fixed principles of the law and
not on the uncertain judgment of jurors as to what is
fraud.* In actions at law therefore it is the province of
the court to instruct the jury as to what intent is in law
fraudulent and to inform them whether certain evidence
had a tendency to prove it.

‘WHAT INTENT IS SUFFICIENT.—The intent which un-
der the statute avoids a transfer as to creditors is an in-
tent to delay, hinder or defraud, and the existence of
the particular intent must be established before the
transfer can be set aside. The mere intent to prevent a
sacrifice is not sufficient.’ But if the intent to prevent a
sacrifice is accompanied with the requisite delay, hinder

 

? Geigler v. Maddox, 26 Mo. 575.

? Gere v. Murray, 6 Minn. 305; Gregory v. Perkins, 4 Dev. 50; Hardy
y. Simpson. 13 Ired. 1382; Keene v. Newell, 2 Mo. 9.

® Wilson y. Lott, 5 Fla. 305; Hall v. Tuttle, 8 Wend. 375; Haven v.
Low, 2. N. H. 13 ; McLaughlin v. Bank of Potomac, 7 How. 220; Dodd
v. McCraw, 8 Ark. 83.

” 4Gregory v. Perkins, 4 Dev. 50.

5 Leadman v. Harris, 8 Dev. 144; Mott v. McNiel, 1 Aik. 162; Durkee
v. Mahoney,1 Aik. 116; Gibson v. Love, 4 Fla. 217; Smith v. Henry, 2
Bailey, 118; s. c. 1 Hill, 16; Babb v. Clemson, 12 8S. & R. 328 ; Cadbury
vy. Nolen, 5 Penn. 320; Vide Kane vy. Drake, 27 Ind. 29; Wynne v. Glide-
well, 7 Ind. 446.

* Cason v. Murray, 15 Mo. 878.
74 FRAUDULENT INTENT.

or defraud, then the transaction is fraudulent and void.’
It is not necessary, to establish a specific design to delay,
hinder or defraud the particular creditor who assails the
transfer for the intent to delay, hinder or defraud one
particular creditor renders the transfer void as to all?
If the object is to delay, hinder or defraud creditors, the
transfer will not be purged because the debtor may
also have some other purpose in view.’

The validity of the transfer, moreover depends upon
the intent of the debtor in making it, and not upon
the question whether a remedy is or is not open to cred-
itorst As fraud depends upon the intent of the debtor,
it must be in the inception of the transfer’ and is the
same in the smallest as in the largest transactions.® No
man, moreover, can in general be guilty of fraud by ac-
cident or mistake." but the parties to a written instru-
ment are conclusively presumed to intend what is ex-
pressed upon its face and if its terms are fraudulent, it
can not be supported by proof that they were inserted
through inadvertence or mistake. It has never been
determined that in order to make void the transfer any
creditor should be actually hindered or delayed. The

 

? Brown v. Osgood, 25 Me. 505; Borland v. Mayo, 8 Ala. 104.

?Turbervill v. Tipper, Palm. 415; Rex v. Nottingham, Lane, 42;
Warneford Case, Dyer, 198, 267; Winer v. Warner, 2 Grant, 448; Hoke v.
Henderson, 3 Dev. 12; Gruber v. Boyles, 1 Brev. 266; Dardenne vy. Hard-
wick, 9 Ark, 482; Warner vy. Percy, 22 Vt. 155.

’ Reed v. Noxon, 48 Ill. 323.

* Grover v. Wakeman, 11 Wend. 187; 8. c. 4 Paige, 23; Hyslop v. Clark,
14 Johns. 458; Halsey v. Whitney, 4 Mason, 206; Green vy. Trieber, 3 Md.
11; Galt v. Dibrell, 10 Yerg. 146.

* Stone v. Grubbam, 2 Bulst. 217; Shep. Touch. 66; Weller v. Wayland,
17 Johns. 102; Claytor v. Anthony, 6 Rand. 285; Bomuareiite vy. Horton,
4 Yerg. 541; ope v. Wilson, 7 Ala. 690.

° State v. Benoist, 37 Mo. 500.

* Runyon v. Leary, 4 Dev. & Bat. 231; Fuller v. Acker, 1 Hill. 473.

* August y. Seeskind, 6 Cold. 166; Hooper vy. Tuckerman, 3 Sandf, 311.
FRAUDULENT INTENT. 15

statute speaks of those who may be hindered.’ The
verdict of a jury upon a question of fraud is not con-
clusive, but may be set aside the same as in any other
case.” A corporation may in judgment of law intend
to defraud creditors.

 

* Richardson vy. Smallwood, Jac. 552.

° Dodd v. McCraw, 8 Ark. 83; Vance v. Phillips, 6 Hill, 433; Potter v.
Payne, 21 Conn. 361; Marston vy. Vultee, 12 Abb. Pr. 143; Edwards v.
Currier, 43 Me. 474; Weisiger v. Chisholm, 28 Tex. 480.

5 Curtis v. Leavitt, 15 N. Y. 9; 8. 0. 17 Barb. 309.
CHAPTER IV.
BADGES OF FRAUD.

THE TERM “BADGE OF FRAUD EXPLAINED.”—A_ badge
of fraud is sometimes called a sign of fraud,’ a mark of
fraud,’ a circumstance of fraud,’ an evidence of fraud,*
and an argument of fraud.’ These terms are all synon-
ymous and simply denote an act which has a fraudu-
lent aspect. An intent to defraud is an emotion of the
mind and as fraud is usually hatched in secret, in arbore
cava et opaca, there are generally no means of ascertain-
ing whether it exists except by observing the acts of
the parties engaged in any transaction and deducing the
intent from those in accordance with certain principles
which have been established by observation and expe-
rience. A badge of fraud is simply an inference drawn
by experience from the customary conduct of mankind.®
The law adopts and acts upon the known principles of
human action. A badge of fraud may therefore be
defined as a fact calculated to throw suspicion upon a
transaction, and calling for an explanation.’ It’s only
effect in general is to require a more stringent proof of
the consideration for the transfer and the good faith of
the parties than would be demanded where no such
suspicion of unfairness exists.®

 

Twynes Case, 3 Co. 80.

? Twynes Case, 3 Co. 80.

* Cadogan v. Kennett, 2 Cowp. 482.

* Cadogan vy. Kennett, 2 Cowp. 482.

° Cadogan v. Kennett, 2 Cowp. 482.

° Terrell v. Green, 11 Ala. 207.

* Peebles v. Horton, 64 N. C. 874; Pilling v. Otis, 18 Wis. 495.
® Terrell vy. Green, 11 Ala. 207.
BADGES OF FRAUD. qT

Way AN ACT Is A BADGE or FRAUD.—The reason why
any fact is denominated a badge of fraud is either be-
cause its natural and probable tendency is to delay,
hinder or defraud creditors or because it is not in the
usual course in which men acting in good faith transact
business. The first ground rests upon the principle
that every man is presumed to intend the natural and
probable consequences of his act; the second ground is
the result of experience. Whatever is out of the usual
course betrays contrivance to give color to the transac-
tion. If the departure from the usual course of busi-
ness consists in an attempt to conceal, it constitutes
secrecy, which is an ordinary badge of fraud. If it
consists in an excess of precaution, it looks as though it
may have been done for effect to give the semblance of
reality to that which is fictitious? It evinces a diffi-
dence in the rectitude of the transaction and a corres-
pondent solicitude to provide defences? Whatever may
be the form it assumes, it always excites suspicion, for
an assumed act is generally prompted by some unusual
motive. When men’s designs are correct they are usu-
ally content to carry them into effect in the usual mode.‘
To raise such a presumption, however, the transfer must
be out of the general course of business as to the par-
ticular article transferred and not of the class of men to
whom the debtor belongs.”

 

* Sands vy. Codwise, 4 Johns. 536; Borland v. Walker, 7 Ala. 269; Kemp-
ner y. Churchill, 8 Wall. 362; Sayres v. Fredericks, 1 C. E. Green, 205
Poague v. Boyce, 6 J. J. Marsh, 70; Godfrey v. Germain, 24 Wis. 410;
Rothberger y. Gough, 52 Ill. 4836. Vide Kane v. Drake, 27 Ind. 29,

? Comstock v. Rayford, 128. & M. 369.

* Sands v. Codwise, 4 Johns. 586.

* Potter v. McDowell, 31 Mo. 62.

* Derby v. Gallup, 5 Min. 119.
78 BADGES OF FRAUD.

ALL BADGES OF FRAUD NOT OF EQUAL WEIcHT.—AIl
badges of fraud are not, however, entitled to equal
weight as evidence. One may be almost conclusive and
another may furnish merely a reasonable inference of
fraud, yet both would be badges of fraud. The books
accordingly speak of strong badges and slight badges
of fraud, meaning by the word “badge” nothing more
than that the fact relied on has a tendency to show
fraud, but leaving its greater or less effect to depend on
its intrinsic character“ There is not, moreover any as-
certained rule of law which fixes and determines what
acts or declarations of a party shall in all cases be re-
quired to establish fraud, but on the contrary the badges
of fraud may and often do vary according to the intel-
lectual character and moral depravity of the perpetra-
tor, the end designed to be obtained and the means by
which it is to be accomplished.?

ErrEcT OF A BADGE cF FRAUD.—A badge of fraud
does not constitute fraud itself, but is simply evidence
of fraud, a means of establishing a fraudulent intent.
It is not necessary, however, in order to condemn a trans-
action as fraudulent, that two or more of the ntarks of a
collusive design shall be affixed to it, for all presumption
becomes conclusive unless explained. Any one badge
simply will impeach a conveyance and on the other hand
several badges may unite and the transaction still be
protected.* The concurrence of several badges will,
however, always make out a strong case.°

 

' Pilling v. Otis, 13 Wis. 495.

* Richards y. Swan, 7 Gill, 366; Schaferman y. O’Brien, 28 Md. 565.

* Wilson y. Lott, 5Fla.305; Allen y. Wheeler, 4 Gray, 123; Pilling y.
Otis, 13 Wis, 495.

“Peck v. Land, 2 Kelly, 1.

* Smith v. Henry, 2 Bailey, 118,
BADGES OF FRAUD. 79

TRANSFER OF ALL.—The tendency pro tanto of every
transfer that can be made by a debtor is to hinder and
delay his creditors, for it diminishes the fund out of
which they can enforce payment.’ A transfer of all the
property of the debtor not only diminishes the fund,
but is not an ordinary transaction, and is therefore a
badge of fraud.’ Dolus versatur in universalibus® Sev-
eral distinct transfers not so closely connected as to con-
stitute one transaction, is not within the rule* As the
universality of the transfer is merely a badge of fraud,
the transfer will be good if made in good faith’ A
transfer of all the debtor’s property does not warrant
the inference that the grantee is aware of the debtor's

 

* Peck v. Land, 2 Kelly, 1.

? Twynes’ Case, 3 Co. 80; Hawkins v. Alston, 4 Dev. Eq. 187; Tubb v.
Williams, 7 Humph. 367; Farmers’ Bank v. Douglass, 11 8S. & M. 469;
Trimble v. Ratcliff, 9 B. Mon. 511; Bozman v. Draughan, 3 Stew. 243;
Rollins v. Mooers, 25 Me. 192; Hord v. Rust, 4 Bibb. 231; Lewis v. Love,
2B. Mon. 345; Venable v. Bank, 2 Pet. 107; Langford y. Fly, 7 Humph.
585; Hartshorne v. Eames, 31 Me. 93; Bean v. Smith, 2 Mason, 252; Harri-
son y. Campbell, 6 Dana, 263; Enders v. Swayne, 8 Dana, 103; Garland v.
Rives, 4 Rand. 282; Pope v. Andrews, 1S. & M. Ch. 135; Lillard v. Mc-
Gee, 4 Bibb. 165; Mason v. Baker, 1 A. K. Marsh, 208; Beeler v. Bullitt, 3
A. K. Marsh, 280; Yoder v. Standiford, 7 Mon. 478; Glenn v. Glenn, 17
Iowa, 498; Vandall v. Vandall, 13 Iowa, 247; Adams v. Slater, 19 Ind.
418; Sarle v. Arnold, 7 R. I. 582; Monell v. Sherrick, 54 I. 269; Burke v.
Murphy, 27 Miss. 167; Wheelden vy. Wilson, 44 Me. 1; Bibb v. Baker,
17 B. Mon. 292; Leadman v. Harris, 3 Dey. 144; Kennedy v. Ross, 2 Mills
Con. R. (8. c.) 125; Sayre v. Fredericks, 1 C. E. Green. 205; Chappel v.
Clapp, 29 Iowa, 161; Clark v. Wise, 39 How. Pr. 97; Forsyth v. Matthews,
14 Penn. 100; Borland v. Walker, 7 Ala. 269; Barr v. Hatch, 3 Ohio, 527;
Parsons v. McKnight, 8 N. H. 35; Borland v. Mayo, 8 Ala. 104; Delaware
vy. Ensign, 21 Barb. 85; Wilson v. Lott, 5 Fla. 305; Constantine v. Twelves,
29 Ala. 607%; Meyer v. Simpson, 21 La. An. 591; Hutchinson y. Kelly, 1
Rob. 123; Oakover v. Pettus, Cas. Temp. Finch, 270; Blow v. Maynard, 2
Leigh, 29.

* Twyne’s Case, 3 Co. 80.

* Preston v. Griffin, 1 Conn. 893; Scott v. Winship, 20 Geo. 429.

5 Alton vy. Harrison, L. R. 4 Ch, 662; Planters’ Bank v. Borland, 5 Ala.
531; Borland v. Mayo, 8 Ala. 104 Dardenne vy. Hardwicke, 9 Ark. 482.
80 BADGES OF FRAUD.

insolvency.! Dolus versatur in generalibus is also a
recognized maxim of the law.? Comprehensive gener-
alities in a deed without any particular specifications are
a badge of fraud.? Men engaged in real transactions do
not commonly deal so loosely. A real purchaser is sel-
dom content with anything short of a precise and une-
quivocal description.

Emparrassment.—As every transfer by a debtor
tends to diminish the fund from which payment can be
enforced, embarrassment and heavy indebtedness are
badges of fraud.‘ Indebtedness alone does not, however,
deprive a debtor of his dominion over his property. It

 

" Borland v. Mayo, 8 Ala. 104.

2 Stone v. Grubbam, 2 Bulst. 217.

’ Duvall v. Waters, 1 Bland, 567; s.c. 11 G. & J. 87; Delaware v. En-
sign, 21 Barb. 85; Gardner v. McEwen, 19 N. Y. 123; Conkling v. Shel-
ley, 28 N. Y¥. 360; McCain v. Wood, 4 Ala. 258; Lang v. Lee, 3 Rand.
410; Thompson v. Drake, 3 B. Mon. 565,

4 Duvall v. Waters, 11 G. & J. 37; s. c. 1 Bland, 567; Durkee v. Maho-
ney, 1 Aik. 116; Tavenner y. Robinson, 2 Rob. 280; Borland v. Walker,
7 Ala. 269; McRea v. Branch Bank, 19 How. 376; Hudgins v. Kemp, 20
How. 45; Callan v. Statham, 23 How. 477; Chappel v. Clapp, 29 Iowa,
161; Borland v. Mayo, 8 Ala. 104; Gibbs v. Thompson, 7 Humph. 179;
Comstock v. Rayford, 12 8. & M. 369; Sayres v. Fredericks, 1 C. E. Green,
205; Richards v. Swan, 7 Gill, 336; McNeal v. Glenn, 4 Md. 87; s. c. 3
Md. Ch. 349; Jackson v. Mather, 7 Cow. 301; Phettiplace, 4 Mason, 312;
Borland v. Walker, 7 Ala. 269; Merrill v. Locke, 41 N. H. 486; Darden v.
Skinner, 2 N. C. L. R. 279; Ringgold v. Waggoner, 14 Ark. 69; Walcott
vy. Almy, 6 McLean, 23; Barrow v. Bailey, 5 Fla. 9; Satterwhite v. Hicks,
Bushee, 105; Overton v. Morris, 8 Port. 249; Planters’ Bank v. Walker, 7
Ala. 926; Kinder v. Macy, 7 Cal. 206 ; Baker v. Bibb, 17 B. Mon. 292; Pur-
kitt v. Black, 17 Cal. 827; Sheppard v. Iverson, 12 Ala. 97; Rollins v.
Movers, 25 Me. 192, Biodgett v. Chaplin, 48 Me. 822; Glenn v. Glenn, 17
Iowa, 498; Hartshorne v. Eames, 31 Me. 93; Clark v. Depew, 25 Penn.
509; Harrison vy. Campbell, 6 Dana, 263; Tubb v. Williams, 7 Humph.
367; Bulkley v. Buffington, 5 McLean, 457; Dick v. Grissom, 1 Freem. Ch.
(Miss.) 428; Beeler y. Bullitt, 8 A. K. Marsh, 280; Enders vy. Swayne, 8
Dana, 103; McConnell y. Brown, Litt. Sel. Cas. 459; Pope v. Andrews, 1
8. & M. Ch. 135,
BADGES OF FRAUD. 81

is merely a circumstance that causes all his transactions
to be scrutinized closely and carefully. In order to
affect a vendee, moreover, the indebtedness must be
known to him. Vendors generally are indebted, aud if
sales by an insolvent were void, a vendee would be
compelled to obtain an abstract of his vendor's circum-
stances as well as of his title.*

Penpency or surr.—The expectation,” or pendency
of a suit is a badge of fraud, because a transfer tends to
deprive the creditor of the means of enforcing his judg-
ment when he obtains it.’

Srcrecy.—Secrecy is a badge of fraud because it
tends to deceive creditors, and is not in the course in
which honest men commonly transact business. Dona
clandestina sunt suspiciosa.t The secrecy which consti-

 

*Copis v. Middleton, 2 Madd. 410; Schultin v. Stone, 3 Barb. 684;
8. C. 29 How. Pr. 355.

* Glenn v. Glenn, 17 Iowa, 498. a

* Twyne’s Case, 3 Co. 80; Merrill v. Locke, 41 N. H. 486; Satterwhite
v. Hicks, Busbee, 105; Overton v. Morris, 3 Port. 249; Sheppard v. Iver-
son, 12 Ala, 97; Johnston v. Dick, 27 Miss. 277; Gibson v. Hill, 23 Tex.
"7; Stewart v. Wilson, 42 Penn. 450; Hartshorne v. Eames, 31 Me. 93;
Bean v. Smith, 2 Mason, 252; Venable v. Bank, 2 Pet. 107; Steele v. Par-
sons, 9 Mo. 823; Colquitt vy. Thomas, 8 Geo. 258; Clark v. Depew, 25
Penn. 509; Lillard v. McGee, 4 Bibb. 165; Garland v. Rives, 4 Rand. 282;
U.S. v. Lottridge, 1 McLean, 246; Thompson yv. Drake, 3 B. Mon. 565;
Beeler v. Bullitt, 3 A. K. Marsh, 280; Yoder v. Standiford, 7 Mon. 478;
Adams vy. Slater, 19 Ind. 418; Howard v. Crawford, 21 Tex. 399; Redfield
Manuf. Co. v. Dysart, 62 Penn. 62; Godfrey v. Germaine, 4 Wis. 410;
Babb v. Clemson, 10 8. & R. 419; Williams v. Lowndes, 1 Hall, 579;
Thornton v. Davenport, 1 Scam. 296 ; Stoddard v. Butler, 20 Wend. 507; s.c.
4 Paige, 163; Jackson v. Mather, 7 Cow. 301; Schaferman v. O’Brien, 28 Md.
565; Streeper v. Eckart, 2 Whart. 302; Paulling v. Sturgus, 3 Stew. 95; Barr
vy. Hatch, 3 Ohio, 527; Callan v. Statham, 23 How. 477; Sayre v. Fredericks,
1 C. E. Green, 205; Smith v. Henry, 2 Bailey, 118; Forsyth v. Matthews,
14 Penn. 100; Peck v. Land, 2 Kelly, 1; Barr v. Hatch, 3 Obio, 527,

* Twyne’s Case, 3 Co. 80; Corlett v. Radcliffe, 14 Moore P. C. 121; Mc-
Lachlan v. Wright, 3 Wend, 348; Burtus v. Tisdall, 4 Barb. 571; Darden

6
82 BADGES OF FRAUD.

tutes a badge of fraud is not, however, a mere want of
notoriety, but a concealment, or an attempted conceal-
ment.! It is not, moreover, conclusive proof,’ and con-
sequently an agreement by a vendee to conceal his pur-
chase is merely evidence of fraud.? The declaration of
an intention to make an assignment, may produce the
mischief which the assignment is intended to prevent,
and secrecy may, therefore, be used.‘

ConcratmentT.—A deed not at first fraudulent may
become so by being concealed, because by its conceal-
ment persons may be induced to give credit to the
grantor.” In such a case the use that is made of it re-
lates back and shows the intent with which it was
made.® The omission to place a deed on record,’ or
leaving it in the hands of the grantor,® or placing it in
the hands of a third person to be produced or suppressed

 

y. Skinner, 2 N. C. L, R. 279; Shiveley v. Jones, 6 B. Mon. 274; Barrow
v. Bailey, 5 Fla. 9; James v8y ohnson, 22 La. An. 195; Stone v. Grubbam,
2 Bulst. 217; 8. c. 1 Rol. Rep. 83; Woodham vy. Baldock, Gow. 35, note;
Vick v. Keys, 2 Hayw. 126; Warner v. Norton, 20 How. 448; Callan v.
Slatham, 23 How. 477; Ross v. Crutsinger, 7 Mo. 245; King v. Moon, 42
Mo. 551; Delaware v. Ensign, 21 Barb. 85.

*Vick v. Keys, 2 Hay. (N. C.) 126.

® Stone v. Grubbam, 2 Bulst. 217; s.c. 1 Rol. Rep. 3.

* Gould v. Ward, 4 Pick. 103; s. c. 5 Pick. 291.

4 Haven v. Richardson, 5 N. H. 118.

* Hungerford v. Earle, 2 Vern. 261; Sands v. Hildreth, 2 Johns. Ch. 35;
s.c. 14 Johns. 493 ; Lewkner v. Freeman, 2 Freem. 286; s. c. Prec. Ch.
105; s. c. Eq. Cas. Abr. 149; Hilderbrun y. Brown, 17 B. Mon. 779; Tar-
back v. Marbury, 2 Vern. 510; Scrivinor v. Scrivinor, 7 B. Mon. 374.

° Worsely v. De Mattos, 1 Burr, 467; Constantine vy. Twelves, 29 Ala.
607.

” Coates v. Gerlach, 44 Penn. 43; Hood v. Brown, 2 Ohio, 267; Scrivinor
y. Scrivinor, TB. Mon. 374; Law y, Smith, 4 Ind. 56; Hodges v. Blount,
1 Hayw. 414; Bank of U. S. v. Houseman, 6 Paige, 526; Bank y. Gourdin,
Speers Ch. 439; Gaither v. Mumford, 1 N. C. T. R. 167.

* Eveleigh v. Pursford, 2 Mood. & Rob. 439.
BADGES OF FRAUD. 83

accordingly as exigencies may demand,’ are instances of
secrecy that are within the rule. If secrecy is a part
of the consideration for securities obtained from a debt-
or who is about to abscond, it contaminates them, but
if there is no such agreement, those who receive them
need not apprise other creditors of his intention.’

Secret trust.—A secret trust between the parties
is a badge of fraud, for fraud isalways apparelled and
clad with a trust, and a trust is the cover of fraud.
That which is called a trust per nomen speciosum as
between the grantor and the grantee, is in truth as to
all the creditors a fraud, for they are thereby defeated
and defrauded. An instrument which misrepresents
the transaction ‘that it recites is evidence of a secret
trust, and is calculated to mislead and deceive credit-
ors. A false recital is therefore a badge of fraud. Er-
roneous recitals may however, and often do happen
through mistake, inadvertence or carelessness and for
this reason are not conclusive evidence of fraud.’ In or-
der to be conclusive there must be intentional disguise,
dissembling or falsehood. When, however, the true
character and consideration of a transaction are not fairly
and plainly stated, the instrument is open to suspicion,
and the question arises whether in misrepresenting the
transaction instead of stating the truth, there was not a
design to mislead and deceive creditors,’ but if upon inves-

 

1 Brown v. McDonald, 1 Hill Ch. 297.

? Hafner v. Irwin, 1 Ired. 490.

3 Twynes’ Case, 3 Co. 80; Shaffer v. Watkins, 7W. & 8. 219; McCul-
loch vy. Hutchinson, 7 Watts, 434.

“ Kempner v. Churchill, 8 Wal. 362; Divver v. McLaughlin, 2 Wend. 596.

5 Fetter v. Cirode, 4 B. Mon. 482.

° Barker y. French, 18 Vt. 460.

7 McKinster y. Babcock, 26 N. Y. 878; Ingles v. Donalson, 2 Hay.
(N. C.) 57.
84 BADGES OF FRAUD.

tigation, the real transaction appears to be fair, though
somewhat different from that which is described, it will
be valid.*

ABSOLUTE DEEDS AS sEcURITY.—Taking an absolute
deed as a security for money is a mark of fraud, for it is
calculated to deceive creditors, and to make them believe
that no part of the property is subject to their demands,
when in fact it is otherwise? The right to redeem is an
interest of value to him who has it, and to reserve it in
such a way as leaves it altogether in confidence between
the parties, and enables them to perform the trust as
between themselves, and at their pleasure to deny its
existence, and refuse its execution for the benefit of cred-
itors, is plainly deceptive, and tends to delay, hinder and
defraud creditors. It is however merely a badge, and
not conclusive evidence of fraud.’ In this respect there

 

? Shirras v. Craig, 7 Cranch. 34,

? Ingles v. Donalson, 2 Hay. (N.8.) 57; Gaither v. Mumford, 1 N.C. T.
R. 167.

’ Harrison v. Phillips Academy, 12 Mass. 456; Richards v. Allen, 8 Pick.
405; New England Ins. Co. vy. Chandler, 16 Mass. 275 ; Reed v. Wood-
man, 4 Me. 400; Stevens v. Hinckley, 43 Me. 440; Gibson v. Seymour, 4
Vt. 518; Smith v. Onion, 19 Vt. 427; Rucker y. Abell, 8 B. Mon. 566;
Gaffney v. Signaigo, 1 Dillon, 158; Gibbs vy. Thompson, 7 Humph. 179;
Bank y. Jacobs, 10 Mich, 349; Chickering v. Hatch, 3 Sumner, 474; Blair
vy. Bass, 4 Black, 539; Ingles v. Donalson, 2 Hay, (N. C.) 57; Reed v. Jew-
ett, 5 Me. 96; Emmons y. Bradley, 56 Me. 333; Spaulding y. Austin, 2 Vt.
555; Oriental Bank v. Haskins, 3 Met. 882; Cutter v. Dickinson, 8 Pick.
386; Yoder v. Standiford, 7 Mon. 478; Wiley v. Lashlel, 8 Humph. 717;
Fletcher v. Willard, 14 Pick. 464; contra, Winkley v. Hill, 9 N. H. 31;
Towle v. Hoitt, 14 N. H. 61; Ladd v. Wiggins, 85 N. H. 421;
Smith v. Lowell, 6 N. H. 67; Parker v. Pattee, 4 N. H. 176; Tift v.
Walker, 10 N. H. 150; Boardman v. Cushing, 12 N. H. 105; McCulloch v.
Hutchingson, 7 Watts, 484; Chenery v. Palmer, 6 Cal. 119; King v. Can-
trel, 4 Ired. 251; Halcomb v. Ray, 1 Ired. 340; Gregory vy. Perkins, 4 Dev.
50; Bryant v. Young, 21 Ala. 264; Hartshorn v. Williams, 31 Ala. 149;
Hough v. Ives, 1 Root, 492 ; Benton v. Jones, 8 Conn. 186; North v. Belden,
13 Conn. 376; Neal v. Glenn, 4 Md. 87; s.c. 8 Md. Ch. 349; wide St.
John vy. Camp, 17 Conn. 222; Whitaker v. Sumner, 20 Pick. 399;
BADGES OF FRAUD. 85

is no distinction between the conveyance of real and per-
sonal estate. If however it appears that the grantee
took an absolute conveyance, with a secret trust to hold
the surplus for the use of the grantor, with the intention
to prevent his creditors from resorting to it, the transfer
will be void.” A mere understanding that the grantor
may tepurchase the property at some future time, by
paying a sum equal to the original price, if made dona
Jide, is not fraudulent, whether it be by parol or in
writing.’ A note for an absolute sum may be taken to
cover a liability as a surety.‘

Fatse rEciTALs.— A false statement of the considera-
tion for a transfer tends to deceive creditors, and is a
badge of fraud.’ This is especially true in regard to a
mortgage. Any discrepancy between the amount to be
secured and, that which is in form set forth as the debt of
the mortgagor is a badge of fraud.® If the statement is

 

Waters v. Riggin, 19 Md. 536. Where it is held to be conclusive, it does
not make the deed void as against subsequent creditors, Smyth v. Carlisle,
16 N. H. 464; 8. c. 17 N. H. 417.

7 Oriental Bank v. Haskins, 3 Met. 332.

? Barker v. French, 18 Vt. 460; Harrison v. Phillips Academy, 12
Mass. 456.

3 Phettiplace v. Sayles, 4 Mason, 312; Barr v. Hatch, 8 Ohio, 527; Glenn
v. Randall, 2 Md. Ch. 220; Anderson vy. Fuller, 1 McMullan, Ch. 27.

* Prescott v. Hayes, 43 N. H. 593.

® Shirras v. Craig, 7 Cranch. 34; McKinster v. Babcock, 26 N. Y. 378;
Gibbs v. Thompson, 7 Humph. 179; Bumpas yv. Dotson, 7 Humph. 310;
Miller v. Lockwood, 82 N. Y. 293; Peebles v. Horton, 64 N. C. 374;
Foster v. Woodfin, 11 Ired. 339 ; McCaskle v. Amarine, 12 Ala. 17; Thomp-
son v. Drake, 3 B. Mon. 565; Venable v. Bank, 2 Pet. 107; McElfatrick y.
Hicks, 21 Penn. 402.

° Parker v. Barker, 2 Met. 423 ; Prince v. Sheppard, 9 Pick. 176; Bailey
y. Burton, 8 Wend. 339; Miller vy. Lockwood, 32 N. Y. 298; Stover v.
Harrington, 7 Ala. 142; Lynde v. McGregor, 13 Allen, 172; Frost v. War-
ren, 42 N. Y. 204; Beeler v. Bullitt, 3A. K. Marsh, 280 ; Tripp v. Vincent,
8 Paige, 176; Wilson v. Horr, 15 Iowa, 489; Wooley v. Fry, 30 Ill. 158 ;
86 BADGES OF FRAUD.

intentionally false, it isan act of direct fraud, for no de-
vices are more deceptive, and more calculated to baffle
delay or defeat creditors, than the creation of incum-
brances for debts that are fictitious, or mainly so.” A
mortgage may, however, include debts due to others,
which the mortgagee at the time gives his promise,
whether by parol or in writing, to pay? The taking
of a judgment,’ and the issuing of an execution,‘ for
more than is due and the antedating of an instrument,’
are marks of fraud.

InapEquacy.—A. vendee who purchases the prop-
erty of an insolvent debtor for less than its value thereby
deprives the creditors of the difference, and defeats their
just expectations. Inadequacy of price thus tends to
defraud them, and is a badge of fraud.® There is no

 

Foley vy. Foley, 1 McCarter, 350; Davenport v. Cummings, 15 Iowa,
219; Ala. Ins. Co. v. Pettway, 24 Ala. 544; Weeden vy. Hawes, 13 Conn.
50; Thompson vy. Drake, 3 B. Mon. 565 ; Bumpas v. Dotson, 7 Humph. 310;
vide Butts v. Peacock, 23 Wis. 359.

* Hawkins v. Alston, 4 Ired. Eq. 187; Marriott v. Givens, 8 Ala. 694.

? Carpenter v. Muren, 42 Barb. 300.

5 Clark v. Douglass, 66 Penn. 408; Felton v. Wadsworth, 7 Cush. 587;
Ayres v. Husted, 15 Conn. 504; Shedd v. Bank, 82 Vt. 709; Davenport
y. Wright, 51 Penn. 292.

4 Wilder v. Fondey, 4 Wend. 100; Harris v. Alcock, 10 G. & J. 226.

* Wright v. Hancock, 3 Munf. 521; Jones v. Henry, 3 Litt. 427; Lin-
dle v. Neville, 13 8. & R. 227 ; Patterson v. Bodenhamer, 9 Ired. 96.

° Steere v. Hoagland, 39 Ill. 264 ; Sands v. Hildreth, 14 Johns. 493;
8.c. 2 Johns. Ch. 85; Darden v. Skinner, 2 N.C. L. R. 279; Jessup v.
Johnston, 3 Jones, (N. C.) 835; Gardiner Bank v. Wheaton, § Me. 373;
Hamet v. Dundass, 4 Penn. 178; Crary v. Sprague, 12 Wend. 41; Yoder v.
Standiford, 7 Mon. 478; Bowles v. Shoenberger, 2 B. Mon. 372 ; Hubbs v.
Bancroft, 4 Ind. 388; Wright v. Stannard, 2 Brock. 311; Williams v.
Cheeseborough, 4 Conn. 356 ; St. John v. Camp, 17 Conn. 222; Wells v.
Thomas, 10 Mo. 237; Monell v. Sherrick, 54 Tl. 269; Williamson y. Good-
wyn, 9 Gratt. 503; Tubb v. Williams, 7 Humph. 367; Sheppard v. Iverson,
12 Ala. 97; Trimble v. Ratcliffe, 9 B. Mon. 511; s.c. 12 B. Mon. 82;
Merry v. Bostwick, 13 Tl. 898; Burke v. Murphy, 27 Miss. 167; Mot-
ley v. Sawyer, 38 Me. 68; Doughten vy. Gray, 2 Stockt. 328; Taylor
v. Moore, 2 Rand. 563; Bray y. Hussey, 24 Ind. 228; Blow v. May-
BADGES OF FRAUD. 87

rule of law as to what disparity between the real value
of property and the consideration paid will in any case
constitute inadequacy of price, but this must be ascer-
tained from the facts and circumstances of each particu-
lar case.* The value of a thing is what it will produce,
and admits of no precise standard. It must be in its
nature fluctuating and dependent on various circum-
stances. To justify an inference of fraud from the inad-
equacy of the price alone, the consideration must be so
clearly below the market value as to strike the under-
standing at once with the conviction that such a sale
never could have been made in good faith” But when
circumstances exist raising a doubt of the fairness of the
transaction, the vendee must prove the payment of an
adequate consideration. The transaction is scrutinized
more closely and the same disparity is not required as
in controversies between the vendor and vendee® <A
fictitious consideration created by a purchase of articles
at high prices from the vendee is not sufficient. The
pressure of circumstances may however, compel a debtor
to sell his property at a sacrifice for the purpose of meet-

 

nard, 2 Leigh. 29; Bay v. Cook, 31 Ill. 336; Smead v. Williamson, 16 B.
Mon. 492; Kinder v. Macy, 7 Cal. 206; Stanton v. Green, 34 Miss. 576;
Gibson y. Hill, 23 Tex. 77; Haney v. Nugent, 13 Wis. 283; Waterman vy.
Donalson, 48 Ill. 29; Craver v. Miller, 65 Penn. 456; Tavenner v. Robinson ;
2 Rob. 280; Hudgins v. Kemp. 20 How. 45; Callan v. Statham, 23 How.
477; Kempner v. Churchill, 8 Wal. 862; Borland vy. Mayo, 8 Ala. 104;
Roach v. Deering, 9 S. & M. 816; Foster v. Pugh, 12 8. & M.416; Wil-
liams v. Kelsey, 6 Geo. 365; Delaware y. Ensign, 21 Barb. 85.

* Barrow vy. Bailey, 5 Fla. 9.

*Feigley v. Feigley, 7 Md. 587; Kempner v. Churchill, 8 Wal. 362 ;
Copis v. Middleton, 2 Madd. 410; Ratcliffe y. Trimble, 12 B. Mon. 82 ;
Borland v. Mayo, 8 Ala. 104; Prosser v. Henderson, 11 Ala. 484.

* Barrow v. Bailey, 5 Fla. 9; Seaman v. White, 8 Ala. 656 ; Bozman y.
Draughan, 3 Stew. 243; Bryant v. Kelton, 1 Tex. 415; Kuykendall v.
Hitchcock, 15 Mo. 416; State v. Evans, 88 Mo. 150.

* Reed v. Carl, 3S. & M. 74.
88 BADGES OF FRAUD.

ing his liabilities, and in such instances a sale for less
than the real value is not unusual and does not indicate
an impure intention.!

Excess IN MoRTGAGE.—A mortgage interposes an ob-
stacle between creditors and the property of the debtor,
and tends to embarrass them in their attempts to realize
their claims, and thus hinder and delay them in their
efforts to obtain satisfaction. If it includes an excess
above what is fairly necessary to secure the mortgage
debt itis therefore a circumstance of fraud.” A mortgagee
is entitled to property of value fully sufficient to cover
his demand under any and all contingencies that may
be expected, or reasonably apprehended, but the debt-
or can not, under the pretense of securing a debt, con-
vey much more than is necessary for that purpose, and
really with the intent to secure the use to himself and
baffle his creditors. Hence the question is always one
of intention.’

Duration oF MonTGAGE.—The time which a mortgage
has to run is a circumstance to be taken into consider-
ation in determining the fairness of the transaction. If
all or a greater portion of the debtor’s property is in-
cluded in the assurance, and if the value is greatly or
considerably beyond the amount of the debt secured,
the period of indulgence to the debtor is important to

 

‘Hubbs v. Bancroft, 4 Ind. 388; Hale v. Saloon Omnibus Co. 4 Drew,
492.

* Bailey v. Burton, 8 Wend. 339; Hawkins y. Allston, 4 Ired. Eq. 187;
Adams y. Wheeler, 10 Pick. 199; Bennett v. Union Bank, 5 Humph.
612; Mitchell v. Beal, 8 Yerg. 134; Wright v. Hancock, 3 Munf. 521;
Ford v. Williams, 13 N. Y. 577; Davis v. Ransom, 18 Ill, 396; Jewett v.
Warren, 10 Mass. 300; Hickman v. Perrin, 6 Cold. 185; vide Downs v.
Kissam, 10 How. 12; Bank of Georgia vy, Higginbottom, 9 Pet. 48.

* Burgin v. Burgin, 1 Ired. 453.
BADGES OF FRAUD. 89

the creditors, because to the surplus beyond the mort-
gagee’s claims they must look for the satisfaction of their
demands. The evidence of a fraudulent purpose is
greater in proportion as the excess in value is increased,
and the time of indulgence prolonged.:

Unvusvat crepir.—Creditors are entitled to sell the
property of the debtor for the satisfaction of their de-
‘mands, according to the mode and terms prescribed by
the law, and any expedient adopted by the debtor with
the clear intent to prevent that, is fraudulent. Itis a
hindrance and delay within the meaning of the stat-
ute. A sale of his property upon a long and unusual
credit has a tendency to delay and hinder creditors, by
interposing a legal title between them and the debtor’s
estate, and compelling them to wait for the expiration of
the credit and consequently is a badge of fraud? A sale
upon credit may be good, for there is no principle of the
law that prevents the debtor from selling on credit, if
thereby he is able to obtain a better price,® but if the
debtor is insolvent, and his intent is to coerce his credit-

 

* Bennett v. Union Bank, 5 Humph. 612; Bigelow v. Stringer, 40 Mo..
195; Reynolds v. Crook, 31 Ala. 634; Mitchell v. Beal, 8 Yerg. 134;
Farmers’ Bank y. Douglass, 11 8. & M. 469; Lewis v. Caperton, 8 Gratt.
148; Montgomery v. Kirksey, 26 Ala. 172; Wiley v. Knight, 27 Ala.
836; Potter v. McDowell, 31 Mo. 62; Henderson v. Downing, 24 Miss.
106; Davis v. Ransom, 18 Ill. 896; Roane v. Bank, 1 Head. 526; Brinley
vy. Spring, 7 Me. 241.

? Tubb v. Williams, 7 Humph. 367; Mills v. Carnley, 1 Bosw. 159;.
Stanton v. Green, 34 Miss. 576; Baker v. Bibb, 17 B. Mon. 292; Potter v.
McDowell, 31 Mo. 62; Gillett v. Phelps, 12 Wis. 392; Pilling v. Otis, 13
Wis. 495; Clark v. Wise, 39 How. Pr. 97; Blodgett v. Chaplin, 48 Me.
322; Ruhl v. Phillips, 2 Daly, 45; Dewey v. Littlejohn, 2 Ired. Eq. 495;
Borland v. Mayo, 8 Ala. 104; Roberts v. Shepard, 2 Daly, 110.

5 Starr v. Strong, 2 Sandf. Ch. 189; Scheitlin v. Stone, 43 Barb. 634 ;
8. C. 29 How. Pr. 355; Pattison v. Stewart, 6 W. & 8. 72; McCasland v..
Carson, 1 Head. 117; Loeschigk v. Bridge, 42 Barb. 171; s. c. 42 N. Y.
421; Ocole Bank v. Nelson, 1 Cold. 186.
90 BADGES OF FRAUD.

ors to accept notes drawn for a long time, or keep them
at bay until the time of credit expires, the purpose is
fraudulent: This is especially true when the sale is not
in the continuation of the debtor’s business, with an
honest effort to retrieve his fortunes, but is made as an
abandonment of his business, and a relinquishment of
all hope of future success.’

PERISHABLE ARTICLES.—If a mortgage or deed of trust
includes perishable articles, or articles consumable in
their use, it is a badge of fraud, for it raises a presump-
tion of a secret trust for the care and favor of the debtor.’
It is for the same reason a mark of fraud if the debtor
sell chattels which are subject to a mortgage and con-
verts the avails to his own use.*

PossEssion or LAND.—The retention of the possession
of land, and the exercise of unequivocal acts of ownership
over it, is a badge of fraud, for it is not in the usual course
of business, and indicates a secret trust for the benefit of
the debtor.’ The acts of ownership by the debtor may

 

* Kepner v. Burkhart, 5 Penn. 478; Pope v. Andrews, 18. & M. Ch.
135; How v. Camp, Walker Ch. 427; Owen vy. Arvis, 2 Dutch. 22; Brown-
ing v. Hart, 6 Barb. 91; Wash v. Medley, 1 Dana. 269; Borland v.
Walker, 7 Ala. 269; Cooke v. Smith, 3 Sandf.Ch. 333 ; Downing v. Kelley,
49 Barb. 547.

° Nesbitt v. Digby, 18 Ill. 387.

* Elmes vy. Sutherland, 7 Ala. 262 ; Hunter vy. Foster, 4 Humph. 211;
Harney v. Pack, 48. & M. 229; Farmers’ Bank v. Douglass, 11S. & M. 469;
Potter v. McDowell, 31 Mo. 62; Darwin v. Handley, 8 Yerg. 502 ; Simpson
v. Mitchell, 8 Yerg. 417; Richmond y. Curdup, Meigs. 581; Planters’ &
Merchants’ Bank v. Clark, 7 Ala, 765; Ewing v. Cargill, 138. &M.79; Shurt-
leff v. Willard, 19 Pick. 202; Ravisies v. Alston, 5 Ala. 297; Googins v.
Gilmore, 47 Me. 9.

“ Dickenson y. Cook, 17 Johns. 832; McNeal y. Glenn, 4 Md. 87; s.c.
3 Md. Ch. 349; Park v. Harrison, 8 Humph. 412.

* Duvall v. Waters, 1 Bland. 567; s.c.11 G, & J. 37; McNeal v.
Glenn, 4 Ma. 87; s.c. Md. Ch. 349; Jackson y. Mather, 7 Cow. 301 ;
BADGES OF FRAUD. 91

consist either in renting,’ or collecting rents? or giving
receipts for rent in his own name’ or directing the mak-
ing of leases,* or making sales of the land, even though
he acts under a power of attorney from the grantee,”
or selling timber,’ or paying ground rent,’ or paying
taxes,° or making improvements, or driving the grantee
off the land.” The grantee may make a bona fide lease to

 

Avery v. Street, 6 Watts, 247; Borland vy. Walker, 7 Ala. 269; Starr v.
Starr, 1 Ohio, 821; Callan v. Statham, 28 How. 477; Gibbs v. Thompson,
7 Humph. 179; Roach v. Deering, 98. & M. 316; King v. Moon, 42 Mo.
551; Halbert v. Grant, 4 Mon. 580; Yoder v. Standiford, 7 Mon. 478;
How v. Camp, Walker Ch. 278; Brown v. McDonald, 1 Hill Ch. 297;
Dick vy. Grissom, Freem. Ch. (Miss.) 428; Williamson v. Goodwyn, 9 Grat.
503; Darden v. Skinner, 2 N. C.L. R. 279; Dewey v. Littlejohn, 2 Ired. Eq.
495; Trimble v. Ratcliffe, 9 B. Mon. 511; Johnston v. Dick, 27 Miss. 277;
Steele v. Ward, 25 Iowa, 535; Planters’ Bank v. Walker, 7 Ala. 926;
Rollins v. Mooers, 25 Me. 192; Ringgold v. Waggoner, 14 Ark. 69; Stan-
ton v. Green, 34 Miss. 576; Knox v. Hunt, 34 Miss. 655; Hartshorne v.
Eames, 31 Me. 93; Middleton v. Sinclair, 5 Cranch. C. C. 409; Farnsworth
v. Bell, 5 Sneed. 531; Purkitt v. Polack, 17 Cal. 327; Sarle v. Arnold, 7 R.
I. 582; Clark v. Johnston, 5 Day, 373 ; Lillard v. McGee, 4 Bibb. 165;

U. S. v. Lottridge, 1 McLean, 246; Lewis v. Love, 2 B. Mon. 345; Venable
v. Bank, 2 Pet. 107.

* Duyall v. Waters, 1 Bland. 567; s.c. 11 G. & J. 37; Callan v.
Stathan, 23 How. 477.

2 Sands v. Hildreth, 14 Johns. 498; s.c. 2 Johns. Ch. 35; Lee v.
Hunter, 1 Paige, 519; Lewis v. Love, 2 B. Mon. 345; Wisner v. Farnham,
2 Mich. 472; Walcott v. Almy, 6 McLean, 23; How v. seam, Walker Ch.
427; Sanfernan y. O’Brien, 28 Md. 565.

9 Duvall v. Waters, 1 Bland. 567; Callan v. Stratham, 23 How. 477.

4 Schaferman v. O’Brien, 28 Md. 565.

® Starr v. Starr, 1 Ohio, 321; Gibbs v. Thompson, 7 Humph. 179;
Stanton v. Green, 34 Miss. 576; Glenn y. Glenn, 17 Iowa, 498.

* Duvall v. Waters, 1 Bland. 567; s.c.11 G. & J. 37.

7 Schaferman vy. O’Brien, 28 Md. 565.

® Stanton v. Green, 34 Miss. 576; Knox v. Hunt, 34 Miss. 655 ; Jacks v.
Tunno, 3 Des. 1; Sands v. Codwise, 4 Johns. 536; Haskell v. Bakewel |
10 B. Mon. 106; Hutchinson y. Kelly, 1 Rob. 123.

° Sands v. Hildreth, 14 Johns. 493; s. c. 2 Johns, Ch. 35; Merry v.
Bostwick, 13 Ill. 398; Marshall v. Green, 24 Ark. 410; Gibbs vy. Thomp-
son, 7 Humph. 179; Tappan v. Butler, 7 Bosw. 480.

0 Duvall vy. Waters, 1 Bland. 567; s.c.11G. & J. 37.
92 ‘ BADGES OF FRAUD.

the debtor, but any act which is out of the usual course
in the transaction, such as a nominal rent,’ or the non-
enforcement of payment of the rent,’ or an excessive
rent,‘ or any indefiniteness in the character, terms or
length of the tenancy,’ is a mark of fraud. Executing
a mortgage to secure the grantor’s debts,’ or making
a reconveyance of part for a nominal consideration,’
or taking no steps for a long time to foreclose a pre-
tended mortgage,® or selling to the debtor’s son,’ or
permitting the grantor to retain possession for a long
time,” is a badge of fraud.

Out oF THE USUAL couRsE.— Anything out of the
usual course of business is a sign of fraud" Unusual
clauses in an instrument excite suspicion. Clausule in-
consuetie semper inducunt suspicionem.” The same prin-
ciple applies to the absence of accounts between the par-
ties, when the transfer purports to be in consideration
of a debt due to the grantee," to the retention of the

 

*Glenn vy. Grover, 3 Md. 212; s. c. 3 Md. Ch. 29; Gardiner Bank v.
Hogdon, 14 Me. 453 ; Barr v. Hatch, 3 Ohio, 527; Wood v. Shaw, 29 Ill. 444.

* Yoder v. Standiford, 7 Mon. 478; Durkee v. Mahoney, 1 Aik. 116;
Bank y. Fink, 7 Paige, 87; Gibbs v. Thompson, 7 Humph. 179.

* Bank vy. Fink, 7 Paige, 87; Reed v. Blades, 5 Taunt. 212.

‘ Hitchcock v. St. John, Hoff. Ch. 511.

* Dick v. Grisson, Freem. Ch. (Miss.) 428.

* Schaferman v. O’Brien, 28 Md. 565; Bank of U. S. v. Houseman, 6
Paige, 526; Jacks v. Tunno, 3 Des. 1; Hudgins vy. Kemp, 20 How. 45.

" Gibbs v. Thompson, 7 Humph. 179.

® Gibbs v. Thompson, 7 Humph. 179.

° Phittiplace v. Sayles, 4 Mason, 312.

* McIntosh y. Bethune, 8 Ired. 139 ; Bank v. Fink, 7 Paige, 87.

™ Danjean vy. Blacketer, 13 La. An. 595,

@ Twynes’ Case, 3 Co. 80; Harrison v. Campbell, 6 Dana, 263; Lang-
ford v. Fly, 7 Humph., 585.

* McDowell v. Goldsmith, 6 Md. 319; s. c. 2 Md. Ch. 370; Wil-
liams y. Cheeseborough, 4 Conn. 856; Enders vy. Swayne, 8 Dana, 103;
Basey v. Daniel, 1 Smith, 252; Whcelden y. Wilson, 44 Me.1; Haney v.
Nugent, 13 Wis. 283; Dick v. Grissom, Freem. Ch. (Miss.) 428.
‘

BADGES OF FRAUD. 93

deed,* or the mortgage note,’ by the debtor, to the omis-
sion to execute the mortgage note at the same time with
the mortgage,’ to any alteration of a mortgage note,* to
the alienation of valuable property without payment or
security,” to the purchase of property for which the
grantee has no use,’ to the grantee’s entrances into a busi-
ness foreign to his own,’ to the grantee’s pecuniary inabil-
ity to make the purchase,° to the grantee’s failure to pay
taxes, to an immediate transfer to another, in consider-
ation of property conveyed to the debtor’s wife,” to the
absence of pressure by a preferred creditor," to the ab-
sence of competition at a public sale,” to the vendee’s

 

} Hungerford v. Earle, 2 Vern. 261; Tarback v. Marbury, 2 Vern. 510;
Starr y. Starr, 1 Ohio, 321.

° Bullock v. Narrott, 49 Ill. 62.

3 Prior v. White, 12 Ill. 261.

* Merrill v. Williamson, 35 Ill. 529.

5 Duvall v. Waters, 1 Bland, 567; s.c.11 G. & J. 87; Hendricks v.
Robinson, 2 Johns, Ch. 283; s. c. 17 Johns. 438; Pope v. Andrews,18. &
M. Ch. 135; Smead v. Williamson, 16 B. Mon. 492; Owen v. Arvis, 2
Dutch. 22; Seymour v. Lewis, 2 Beasley, 439; Glenn vy. Glenn, 17 Iowa,
498.

° Grubbs v. Greer, 5 Cold. 160.

7 Boies vy. Henney, 32 Ill. 130.

® Sands v. Codwise, 4 Johns. 586; Railroad Co. v. Kyle, 5 Bosw. 587 ;
Jessup vy. Johnston, 3 Jones (N. C.), 335; Overton v. Morris, 3 Port. 249;
Bredin y. Bredin, 3 Penn. 81; Pope v. Andrews. 18. & M. Ch. 135; En-
ders v. Swayne, 8 Dana, 103; Venable v. Bank, 2 Pet. 107; Mcllyoy v.
Kennedy, 2 Bibb. 380; McLean v. Morgan, 5 B. Mon. 282; Gordon v.
Lowell, 21 Me. 251; Van Winkle v. Smith, 26 Miss, 491; Johnston v. Dick,
27 Miss. 277; Ringgold v. Waggoner, 14 Ark. 69; Smead vy. Williamson,
16 B. Mon. 492; Owen y. Arvis, 2 Dutch. 22; Farnsworth v. Bell, 5 Sneed,
531; Scymour v. Lewis, 2 Beasley, 439; Glenn v. Glenn, 17 Iowa, 498 ;
James v. Johnston, 22 La. An. 195; Graham vy. Smith, 25 Penn. 3238;
vide Andrews v. Jones, 10 Ala. 400.

* Bulkley v. Buffington, 5 McLean, 457.

1 Newman v. Cordell, 43 Barb. 448.

1 Eveleigh v. Purrsford, 2 Mood. & Rob. 539; Leadman v. Harris, 3
Deo. 144; Kennedy v. Ross, 2 Mills, Con. (8. C.) 126.

% Tavenner v. Robinson, 2 Rob. 280.
94 BADGES OF FRAUD.

declaration that he is purchasing for the debtor,’ to the
confession of a judgment and the issuing of an execu-
tion on the same day,’ to the grantor’s concealment of
property,’ or flight, to an indemnity for sureties whose
liabilities are remote and depend upon a contingency,”
to inconsistent statements,° and to other fraudulent trans-
actions between the same parties." The execution of a
deed in the absence of the grantee,* and the delivery of
the deed by the debtor to the recorder, are not marks of
fraud? A written transfer of personal property is.
merely a suspicious circumstance.”

UNUSUAL MODE OF PAYMENT.— Whatever is out of the
ordinary course in the mode, manner, or time of the pay-
ment of the alleged consideration is a mark of fraud.
Precision and formality," the pains taken to invite wit-
nesses to see the sale made, and the bantering and nego-
tiation about the price,” cautioning them to pay atten-
tion and recollect what they hear,'* telling them that the

 

+ Tavenner v. Robinson, 2 Rob. 280.

° Floyd v. Goodwin, 8 Yerg. 484.

° Avery vy. Street, 6 Watts, 247; Comstock v. Rayford, 12 8. & M. 369.

* Rogers v. Hall, 4 Watts, 859; Wright v. Hancock, 3 Munf. 521; Foug-.
eres v. Zacharie, 5 J. J. Marsh, 504; Kittering vy. Parker, 8 Ind. 44; Dan-
jean v. Blacketer, 13 La. An. 595:

* Harney v. Pack, 48. & M. 229.

“Dalton v. Mitchell, 4 J. J. Marsh, 872; Fougeres y. Zacharie, 5 J. J.
Marsh. 504; Marshall v. Green, 24 Ark. 410; ode Kane v. Drake, 27 Ind.
29.

" Bumpas v. Dotson, 7 Humph. 810.

* McLean v. Lafayette Bank, 3 McLean, 587.

“ Ward v. Wehman, 27 Iowa, 279.

*° Forsyth v. Matthews, 14 Penn. 100; McQuinnay v. Hitchcock, 8 Tex.
33; Kane vy. Drake, 27 Ind. 29.

| Hartshorne y. Eames, 31 Me. 93.

*” Goldsbury v. May, 1 Litt. 254,

*® Adams y. Davidson, 10 N. Y. 309.
BADGES OF FRAUD. 95,

transaction is fair,’ a parade of payment in the presence
of witnesses,” are signs of fraud, for when a part is over-
acted the delusion is broken and the fiction appears.
The facility with which a fictitious payment may be
fabricated renders it necessary for the grantee to pro-
duce all the proof which may reasonably be supposed
to be in his power of the reality and fairness of the
transaction,’ and the want of clear proof is evidence of
fraud.* Such proof is vital to uphold a transfer in other
respects surrounded with suspicion,’ and this require-
ment is not met by the mere production of notes and
receipts,’ or the mere proof of payment without any at-
tempt to show where the money came from,’ how it was
obtained or whose it was,® or what was done with it.

ABSENCE OF EVIDENCE.—The omission of the grantee
to testify or to produce the debtor or any other impor-
tant witness, is the ground for an unfavorable presump-
tion, and frequently exercises an important influence

 

* Comstock v. Rayford, 12 8. & M. 369.

* King v. Moon, 42 Mo. 551.

* Hunt v. Blodgett, 17 Ill. 583; Vandallv. Vandall, 13 Iowa, 247; God-
frey vy. Germain, 24 Wis. 410.

* Duvall v. Waters, 1 Bl. 567; s.c. 11 G. & J. 37; Dorn v. Bayer, 16 Md.
144; Schaferman vy. O’Brien, 28 Md. 565; Callan v. Statham, 23 How. 477;
Robbins v. Parker, 3 Met. 117; Sands v. Hildreth, 14 Johns. 493; 8. c. 2
Johns. Ch. 35; Brady v. Briscoe, 2 J. J. Marsh, 212; Harrison vy. Campbell,
6 Dana, 263; Purkitt v. Polack, 17 Cal. 327; Allen v. Bonnett, L. R.5 Ch.
577; Enders v. Swayne, 8 Dana, 103; Venable v. Bank, 2 Pet. 107; Jones
y. Read, 3 Dana, 540.

® Callan y. Statham, 23 How. 477; Gibbs v. Thompson, 7 Humph. 179;
King v. Moon, 42 Mo. 551.

° Fulmore y. Burrows, 2 Rich. Eq. 95.

" King v. Moon, 42 Mo. 551.

® Jackson v. Mather, 7 Cow. 301; King v. Moon, 42 Mo, 551.

® King vy. Moon, 42 Mo, 551.
96 BADGES OF FRAUD.

upon the final determination of the question of fraud.’
Want of preciseness as to dates, time and amount in their
testimony when produced excites suspicion, for the facts
occurring in a suspicious transaction would naturally
make an impression which would not be effaced from
the memory very soon and. the testimony, if the trans-
fer is recent, should be clear, accurate and specific.*

Re.ationsurp.—Relationship is not a badge of fraud.*
Fraud, however, is generally accompanied with a secret
trust, and hence the debtor must usually select a
person in whom he can repose a secret confidence.
The sentiments of affection commonly generate this
confidence, and often prompt relatives to provide for
each other at the expense of just creditors. They are
the persons with whom a secret trust is likely to exist.
The same principle applies to all persons with whom the
debtor has a confidential relation. Any relation which
gives rise to confidence, though not a badge of fraud
strengthens the presumption that may arise from other
circumstances, and serves to elucidate, explain, or give
color to the transaction.* The doctrine applies to the

 

"Hale v. Saloon Omnibus Co. 4 Drew. 492; 8. c. 28 L. J. Ch. 777;
Graham v. Furber, 78 E. C. L. 410; s.c. 140. B. 410; im re Hussman,
2 B.R. 140; Blaisdell v. Cowell, 14 Me. 370; Glenn vy. Glenn, 17 Iowa,
498; Cox v. Shropshire, 25 Tex. 118; Newman v. Cordell, 43 Barb. 448;
Peebles v. Horton, 64 N. C. 874; vide Devries y. Phillips, 63 N. C. 53.

* Newman y. Cordell, 43 Barb. 448.

* Copis v. Middleton, 2 Madd. 410; Merrill v. Locke, 41 N. H. 486;
Sterling v. Ripley, 8 Chand. 166; Wrightman v. Hart, 37 Ill. 123; Dunlap
v. Bournonville, 26 Penn. 72; Bumpas v. Dotson,  Humph. 310; Wilson
v. Lott, 5 Fla. 305; Montgomery v. Kirksey, 26 Ala. 172; Kane vy. Drake,
27 Ind. 29; Hempstead v. Johnston, 18 Ark. 123.

“ Brady v. Briscoe, 2 J.J. Marsh, 212; Wilson v. Lott, 5 Fla. 305;
Montgomery v. Kirksey, 26 Ala, 172; Hanford y. Artcher, 4 Hill, 271;
s.c. 1 Hill, 847; Bumpas v. Dotson, 7 Humph. 810.
BADGES OF FRAUD. 97

relationship of father,’ mother,’ father-in-law,’ mother-
in-law,’ uncle, brother,’ sister,’ brother-in-law,® sister-in-

 

' Hartshorn v. Eames, 31 Me. 93; McIntosh v. Bethune, 8 Ired. 139 ;
Poague vy. Boyce, 6 J. J. Marsh, 70; Wheelden y. Wilson, 44 Me. 1; Van-
dall y. Vandall, 13 Iowa, 247; Weaver v. Wright, 13 Rich. 9; Slattery v.
Stewart, 45 Ill, 298; Forsyth v. Matthews, 14 Penn. 100; Scrivenor v.
Scrivenor, 7 B. Mon. 874 ; Walter v. McNabb, 1 Heisk, 703.

2 Lloyd v. Williams, 21 Penn. 327; Splawn vy. Martin, 17 Ark. 146;
Gardinier v. Otis, 18 Wis. 460; Coley v. Coley, 1 McCarter, 350; Sporrer v.
Eifler, 1 Heisk, 633.

5 Borland v. Walker, 7 Ala. 269; Railroad Co. v. Kyle, 5 Bosw. 587;
Bozman v. Draughan, 3 Stew. 243; Seymour v. Lewis, 2 Beasley, 439;
Wilson vy. Horr, 15 Towa, 489; Crawford v. Carper, 4 W. ‘Va. 56; Plan-
ters’ Bank yv..Walker, 7 Ala. 926; Gordon vy. Lowell, 21 Me. 251; Bor-
land v. Mayo, 8 Ala. 104.

4 Harrison v. Campbell, 6 Dana, 263; Watson y. Kennedy, 3 Strobh.
Eq. 1; Wilson v. Lott, 3 Fla, 305.

5 Felton v. White, 4 Jones (N. C.), 301; Wightman v. Hart, 37 Ill. 123;
Demarest v. Terhune, 3C. E. Green, 45; Waterman v. Donalson, 43 Ill, 29.

° Hudgins v. Kemp, 20 How. 45; Callan v. Statham, 23 How. 477;
King v. Moon, 42 Mo. 551; Chappel v. Clapp, 29 Iowa, 161; Green v.
Tantum, 4 C. E. Green, 105; Redfield Manf. Co. v. Dysart, 62;
Penn. 62; Dewey v. Littlejohn, 2 Ired. Eg. 495; Hawkins v. Alston, 4
Tred. Eq. 187; Bredin v. Bredin, 3 Penn. 81; Millett v. Pottinger, 4 Met.
(Ky.) 213; Smit v. People, 15 Mich. 497; Foster v. ‘Grigsby, 1 Bush, 86 ;
Pope v. Andrews, 18. &M. Ch. 185; Enders v. Swayne, 8 Dana, 103;
How v. Camp, Walker Ch. 427; Nesbitt v. Digby, 13 Ill. 387; Wisner v.
Farnham, 2 Mich. 472; Johnston v. Dick, 27 Miss. 277; Craver v. Miller,
65 Penn. 456; Reed v. Carl, 38. & M, 74; Steele v. Parsons, 9 Mo. 823;
James vy. Johnston, 22 La. An. 195.

7 McRea v. Branch Bank, 19 How. 876; Kaine v. Weigley, 22 Penn.
179; Copenheaver v. Huffacker, 6 B. Mon. 18 ; Sayre v. Fredericks, 1 C. E,
Green, 205; Sporrer v. Hifler, 1 Heisk, 633.

® Schaferman y. O’Brien, 23 Md. 565; Merrill v. Locke, 41 N. H. 485 ;
Jackson vy. Brush, 20 Johns. 5; Copenheaver y. Huftacker, 6 B. Mon. 18;
Tubb v. Williams, 7 Humph. 367; Farmers’ Bank v. Douglass, 11 8. & M.
469; Burtus v. Tisdall, 4 Barb. 571; Satterwhite v. Hicks, Busbee, 105;
Planters’ Bank vy. Walker, 7 Ala. 926; Wilson v. Butler, 3 Munf. 559; Dal-
ton v. Mitchell, 4 J. J. Marsh, 872; Venable v. Bank, 2 Pet. 107; Kaine v.
Weigley, 22 Penn. 179; Steele v. Ward, 25 Iowa, 585; Steere v. Hoagland,
39 Ill. 264; Gibbs v. Thompson, 7 Humph. 179; Barrow v. Bailey, 5 Fla.
9; Bray v. Hussey, 24 Ind. 228; Burke v. Murphy, 27 Miss. 167; Bulkley
v. Buffington, 5 McLean, 457; Hunt v. Knox, 34 Miss, 655; Sayre v.
Fredericks, 1 C. E. Green, 205,

q
98 BADGES OF FRAUD.

law,! son,? daughter,’ son-in-law,* cousin,’ nephew,’ step-
son,’ grandson,® partner,? and confidential friend,” or
agent." Wherever this confidential relation is shown
to exist, the parties are held to a fuller and stricter proof
of the consideration,” and of the fairness of the transac-
tion.¥

 

* Smith y. Henry, 2 Bailey, 118; s.c. 1 Hill, 16; Young v. Stallings,
5 B. Mon. 307; Walcott v. Almy, 6 McLean, 23.

? Duvall v. Waters, 1 Bland, 567; s.c. 11G.&J. 37; Farnsworth v.
Bell, 5 Sneed, 531; Gibson v. Hill, 23 Tex. 77; Glenn v. Glenn, 17 Iowa,
498; Trimble v. Ratcliff, 9B. Mon. 511; Ringgold v. Waggoner, 14 Ark,
69; Law v. Smith, 4 Ind. 56; Jones vy. Read, 3 Dawa. 335; Shiveley v.
Jones, 6 B. Mon. 274; Sheppard v. Iverson, 12 Ala. $97; Basey v. Daniel, 1
Smith, 252; Dick v. Grissom, 1 Freem. Ch. 428; Halbert v. Grant, 4 Mon.
580; Brady v. Briscoe, 2 J. J. Marsh, 212; Middleton v. Sinclair, 5 Cranch
C. C. 409 ; Bean v. Smith, 2 Mason, 252; Sands v. Codwise, 4 Johns.
536; Jessup v. Johuston, 8 Jones (N.C.), 835; Carter v. Carpenter, 7
Bush, 257; Sheppard v. Iverson, 12 Ala. 97; Tripp v. Childs, 14 Barb.
85 ; Lewis v. Love, 2 B. Mon. 345; Jackson vy. Spivey, 63 N. C. 261; Chap-
pel v. Clapp, 29 Iowa, 161.

° Foster v. Woodfin, 11 Ired. 839; Haney v. Nugent, 13 Wis, 288;
Marshall y. Green, 24 Ark. 410; Parsons v. McKnight, 8 N. H. 35 ; O’Connor
v. Bernard, 2 Jo. 654; Clairborne v. Goss, 7 Leigh, 381.

“ Duvall vy. Waters, 1 Bland, 567; 8. c. 11 G. &J. 87; Black v. Cadwell,
4 Jones (N. C.), 150; Rollins v. Mooers, 25 Me. 192; Garland vy. Rives, 4
Rand, 282; Merry v. Bostwick, 13 Ill. 898; Hook vy. Mowre, 17 Iowa, 195;
Jackson v. Mather, 7 Cow. 301.

® Blodgett v. Chaplin, 48 Me. 322; Nelson v. Smith, 28 Dl. 495.

* Phettiplace v. Sayles, 4 Mason, 312; Copis v. Middleton, 2 Madd.
410; Langford v. Fly, 7 Humph. 585; Bibb v. Baker, 17 B, Mon, 292;
Davis v. Gibbon, 24 Iowa, 257.

7 Marlow v. Orgill, 8 Jur. (N. 8.) 829.

® Smith v. Daniel, 1 Smith, 252; Bayze v. Daniel, 1 Ind. 878.

* Thompson v. Drake, 3 B. Mon. 565; Strong v. Hines, 35 Miss. 201.

» Gibbs v. Thompson, 7 Humph. 179; Yoder v. Standiford, 7 Mon.
478; Wells v. Thomas, 10 Mo. 237; Paxton v. Boyce, 1 Tex. 817.

“ Clark vy. French, 23 Me. 221; Cooke v. Smith, 8 Sandf Ch. 3338;
Smead v. Williamson, 16 B. Mon. 492; Kinder v. Macy, 7 Cal. 206; Stan-
ton y. Green, 34 Miss, 576; Bridge v. Loeschigk. 42 N. Y. 421.

” Dick v. Grissom, 1 Freem. Ch. (Miss.) 428; Hawkins v. Alston, 4 Ired.
Eq. 187; Satterwhite v. Hicks, Busbee, 105; Brady vy. Briscoe, 2 J. Marsh,
212; Brice v. Meyers, 5 Ohio, 121.

** Jenkins v. Pearce, 1 Jones (N. C.),413; Black v. Cadwell, 4 Jones (N.
C.), 150; Bowman v. Houdlette, 18 Me, 245; Lloyd v. Williams, 21 Penn. 827.
BADGES OF FRAUD. 99

Dertay.—Mortgages and deeds of trust encumber
the property which they cover, and thus in many in-
stances embarrass the grantor’s creditors in their efforts
to subject it to the payment of their demands. If such
instruments, however, are executed in good faith, the
delay and hindrance that are merely incidental to the
accomplishment of the object which the parties have in
view or arise merely from a desire to have the property
when sold bring the best price that can reasonably
be obtained, under all the circumstances or result from
a subsequent reluctance on the part of the mortgagee
or trustee to embarrass, oppress or ruin the grantor, will
not invalidate them or constitute a just ground of com-
plaint on the part of creditors. A deed of trust or
mortgage may for this reason contain a stipulation that
the mortgagor or trustee shall retain or keep possession
of the property until the cestué gue trust or mortgagee,
as the case may be, desires to take possession or requests
that the property shall be sold.’ The instrument may
even contain a stipulation that the debtor may remain
in possession for a certain period, unless an execution
shall in the meantime be issued against him.? A deed
of trust may also allow a liberal discretion to the
trustee in the disposition of the property, both as to
the time and as to the manner of making the sale?
Mere delay in enforcing a mortgage or deed of trust is
simply a circumstance to be taken into consideration,

 

? Dubose v. Dubose, 7 Ala. 235; Brock v. Headon, 13 Ala. 370; Mar-
riott v. Givens, 8 Ala. 694.

* Alton vy. Harrison, 4 L, R. Ch. 622; Lee v. Flannaghan, 7 Ir. 471;
Prior v. White, 12 Ill. 261; Frost v. Mott, 34 N. Y. 253.

° Brock v. Headon, 13 Ala. 870; Burgin v. Burgin, 1 Ired. 453; Walt-
hall v. Rives, 34 Ala. 91; Tarver v. Roffe, 7 Ala. 873.

* Galt v. Dibrell, 10 Yerg. 146; Davis v. Evans, 5 Ired. 525; Ely v.
Carnley, 3 E. D. Smith, 489; Harshaw v. Woodfin, 64 N. C. 568; Lee v.
Flannagan, 7 Ired. 471; Hardy v. Skinner, 9 Ired. Eq. 191; Burgin v.
Burgin, 1 Ired. 453; Dewey v. Littlejohn, 2 Ired. Hq. 495.
100 BADGES OF FRAUD.

for the creditors may proceed to collect their demands
from the property if its value exceeds the amount
secured by the mortgage or deed of trust without
waiting for the party who holds such security, to cause
a sale to be made. As the creditors are not materially
injured by the delay, they have no legal grounds to
complain on account of the compassion or humanity of
the mortgagee or trustee, or on account of a desire, if
such exists, to prevent a sacrifice of the property for
the purpose of protecting the interests of the party
who holds such security.
CHAPTER V.

POSSESSION.

PRELIMINARY REMARKS.—The history of the law re-
specting the rights of creditors in relation to the proper-
ty of their debtor, sold, assigned or mortgaged by him,
but remaining in his possession and under his control, is
remarkable. It presents a perpetual struggle between
a general rule of policy intended to cut off the possibility
of fraudulent or collusive sales, prescribing that every
sale, assignment or mortgage unaccompanied by change
of possession, should be held fraudulent in the eye of
the law and void against creditors, and, on the other
side, the obvious hardship and injustice of numerous
particular cases, where the innocent and even benevo-
lent intention of the party was manifest, and the legal
presumption of fraud appeared inequitable, oppressive,
contrary to the truth of the case and the moral feelings
of those who must apply and enforce the law. Thus
it happened, that whilst the courts and the books laid
down the rule broadly and often applied it strictly, that
unless possession accompanies and follows the transfer it
is fraudulent and void, yet, first case after case, and then
class after class of exceptions was exempted from the rule,
until there were numerous distinct grounds of exemption,
such as the kind of sale, purchase under execution or
distress for rent, necessity convenience, the customs of
trade, the distance or situation of the place, the relation
of the parties, motives of humanity or of friendship, and
102 POSSESSION.

special circumstances of various kinds more or less de-
finitely defined?

A point which has been so extensively litigated will
be best understood by an examination of the principles
that are involved, in the first place, and then of the au-
thorities.

 

2 Stoddard v. Butler, 20 Wend. 507, per Senator Verplanck. In a note
to Bissel v. Hopkins, 3 Cow. 166, the number of the exceptions are stated
to be twenty-four, the principal of which are as follows: 1. Where a
creditor is knowing and assenting to the sale (Steel v. Brown, 1 Taunt.
881). 2. Where the sale is conditional, (Per Coke, J. in Stone v. Grub-
bam, 2 Bulstr, 217; and per Buller, J. in Edwards v. Harben, 2 T. R. 587,)
4. é. in the last case a condition precedent to be performed by the vendee,
8. Where the goods remain with the vendor to be sold for the benefit of the
vendee, the vendor being a borrower on bottomry (7. e. a mortgagor), the
trust being declared by the deed (Bucknal v. Royston, Prec. Ch. 285).
4. Where A. purchases the goods ona ji fa, and leaves them with the
judgment debtor, to the intent that he pay for and redeem them (Cole v.
Davis, 1 Ld. Raym. 724). 5, Wherethe goods purchased in this manner are
left from benevolence or fora temporary and honest purpose (Kidd v.
Rawlinson, 2 B. & P. 59). 6. Where money islent to buy furniture, and a
bill of sale honestly taken to secure the repayment of the money (Meggott
v. Mills, 1 Ld. Raym. 286). 7. Where the purchase was a fair one at public
sale, and the goods are left with a relation or friend (Per Shippen Ch. J. in
Walters, v. McLellan, 4 Dall. 208). 8. Where the vendor is an intended
husband, and sells to trustees to make a marriage settlement upon his future
wife (Hazelinton v. Gill, 3 T. R. 620, én notis, Cadogan vy. Kennett, 2 Cowp.
432). 9. Where a bill of sale is a mortgage (Barrow v. Paxton, 5 Johns.
258; U.S. v. Hooe, 8 Cranch, 78). 10. Where the non-delivery arises from
the sickness of the vendor's depositary (Beals v. Guernsey, 8 Johns. 446). 11.
Where the assignment is of a cargoin a ship lying at the port where the as-
signment is executed, but.bound to a foreign port, the assignment provid-
ing that remittances shall be made to liquidate the debt due to the vendee
in consideration of which debt the assignment is made, &c. (Dawes v. Cope,
4 Binn. 258). 12. Where the conveyance was late on Saturday night,
and the possessions remained unchanged till Monday (Wilt v. Franklin,
1 Binn, 502). 18. A purchase by a creditor in an execution (Watkins
v. Birch, 4 Taunt. 823). 14. A purchase under a landlord’s warrant of dis-
tress (Guthrie v. Wood, 1 Starkie, N. P. 867). 15. A ship abroad may of
course be sold and possession retained by the vendor till her return
(Putnam vy. Dutch, 8 Mass. 287). 16. A Dona Jide sale of bricks in a brick-
yard, accompanied with a lease of the yard to the vendee until the bricks
should be sold and removed, was held to be valid against the creditors of
the vendor without actual removal (Allen vy. Smith, 10 Mass. 308).
POSSESSION. 10.

DEPENDS UPON THE INTENT.—The question arises up-
on the construction of a positive statute, and a true solu-
tion cannot be attained without carefully considering
the terms of the act. The statute is directed, not agains.
an inconsistent possession, but a fraudulent design, not
against fair and honest contracts, but conveyances made
with the intent to delay, hinder or defraud creditors.!
The intent of the debtor is, therefore, by the very terms
of the act, the true and legitimate object of inquiry and
judicial investigation. If the fraudulent intent is pres-
ent, the conveyance is void; if itis absent, the convey-
ance is valid. All the circumstances that accompany a
transaction are valuable only as they throw light upon
the debtor’s intent.

VENDOR’S RIGHT TO LEAVE WITH vENDEE.—A full
and free power of disposal of chattels is an essential and
inherent incident of ownership, and the vendee has the
same right to leave them in the possession of the vendor
that he would have to take them into his own, or place
them in possession of a third person,’ unless such act
necessarily and inevitably tends to deceive and defraud
creditors. The argument that the retention of posses-
sion is fraud per se cannot rest upon the incomplete-
ness of the purchaser’s title, for in sales of personal
property actual delivery is not necessary to the trans-
mission of the title? By the contract of sale and present
payment of the price, or an agreement to pay it there-
after, the purchaser acquires the right of property and
may recover it by action. Thus, if A. sells property to
B. in presenti, and receives payment therefor, or B.’s note

 

1 Davis v. Turner, 4 Gratt. 422; Hobbs v. Bibb, 2 Stew. 54; Bryant v.
Kelton, 1 Tex. 415.

° Hanford v. Artcher, 4 Hill, 271; 8. c. 1 Hill, 374.

5 Cole v. White, 26 Wend. 511; s. c. 24 Wend. 116.
104 POSSESSION.

or promise to pay at a future day, the title passes from
A. and becomes vested in B., and is not affected by the
failure of A. to deliver or of B. to demand the imme-
diate possession. Now, as the dominion over a man’s
property belongs to him and not to his creditors, they
ought to be allowed to subject to their demands only
the right which remains in him and not that from
which he has lawfully parted.

PosskssIoNn IS BADGE OF FRAUD.—The want of posses-
sion, however, is a strong badge of fraud. The property
is placed in the purchaser, the possession continues in the
debtor, and by that means creditors, perceiving no visible
diminution of the debtor’s effects, rest satisfied and take
no measures to secure their debts, until, perhaps, the
whole estate of the debtor is exhausted whereas, should
the vendee immediately take possession, creditors would
thereby have notice that the debtor’s estate was wear-
ing away, and apply for the discharge of their demands in
time. It has this further ill effect, that the debtor, still
continuing in possession and being reputed owner, ob-
tains credit upon a belief that he is the owner, and so by
the fault of the vendee possesses the means of contracting
debts without the means of paying them.’ As it is out
of the ordinary course of business for a person to buy
goods and not to receive the possession, a sale without
a change of possession enables the vendor to hold out
. false colors and obtain a false credit, by inducing others
to trust him on account of his apparent property, and
may be used to protect secret transfers. It, therefore,
has a direct tendency to deceive and defraud creditors,
and, as the law always holds that a person intends what-

 

* Davis v. Turner, 4 Gratt. 422.
* Ingles vy. Donalson, 2 Hay. 57; Ludlow v. Hurd, 19 Johns, 218.
POSSESSION. 105

ever is the natural and probable consequence of his own
acts, raises a presumption that the vendor intends to de.
fraud his creditors.

©

Nor conciustve—aAlthough the retention of pos-
session is for these reasons presumptive evidence of
fraud, yet it is not conclusive, because possession is only
prima facie evidence of title to personal property. How
far it would have been wise to have determined originally
that the actual possession should be considered as decisive
evidence of all property is a question now too late to be
discussed, because as far back as the year books,’ a grad-
ual was limited to A. for life, and afterwards to B. In
modern times the courts, proceeding upon the same
principle, have said that personal property may be
carved out in the same manner and possession given to
one for life and then over,’ and it is now settled law
that possession is only presumptive evidence of owner
ship* The frequent necessity of entrusting personal
estate to others than the actual owner—to clerks,
domestics, factors, mechanics and borrowers—forbids
the adoption of the rule that possession shall al-
ways be deemed conclusive evidence of title But
the line of distinction between presumptive and con-
clusive evidence of fraud is clearly drawn. If the inevi-
table consequence of an act is to defraud creditors, then
that act is conclusive evidence of fraud. But if the ten-
dency to defraud is only a natural and probable and
not an inevitable consequence of an act, then that act is

 

? Griswold v. Sheldon, 4 N. Y. 580.

* 37 Hen. VI. 30.

3 Jarman v. Woolloton, 3 T. R. 618; Haven v. Low, 2 N. H. 13.

‘ And there was no occasion otherwise for the statute of King James
Stat. 21 Jac. 1, ve. 19, 8.1011; Arundell v. Phipps, 10 Ves. 139.

° Haven v. Low, 2.N. H. 18.
106 POSSESSION.

only presumptive evidence of fraud. As possession is
only presumptive evidence of title, the retention of
possession has only a probable tendency to deceive, and
is, therefore, only presumptive evidengg of an intent to
defraud,

CavEAT oREDITOR.—In purchases of personal prop-
erty the rule caveat emptor applies, though the ven-
dor may be in possession, and it is no harsher to
apply a similar rule of caveat creditor. Before giving
credit he should diligently inquire as to the title of the
property in the possession of the debtor. When he makes
proper inquiry he may ascertain that the naked fact of
possession after a sale isthe only indication of fraud, and
that even this indication is weakened by clear evidence
of a full consideration, perfect publicity in the sale and
little prior indebtedness on the part of the vendor. He
may find that there was an express condition in the sale
itself for a loan of the property to the vendor, and, con-
sidering the nature of the property and the character
and situation of the parties, that this condition ought
not to cast any suspicion on the transaction. Thus cases
will occur to every one where property may be honestly
loaned for a time to the vendor from mere charity; other
cases for hire, and others still for the property to be
repaired, freighted or manufactured. In others it may
be left with the vendor from simple procrastination as
to its removal, and in others because the property is
of so ponderous a nature as to render a speedy removal
inconvenient in the usual course of business. The length
of time it is left or loaned, whether for hours, months

 

* Haven v. Low, 2. N. H. 13; Davis v. Turner, 4 Gratt. 422; Syduor v.
Gee, 4 Leigh, 535.
POSSESSION. 107

or years, would frequently much strengthen or weaken
any presumption of fraud.’ It is, morever, vain to at-
tempt to so arrange the possession of personal property
as altogether to prevent frauds upon creditors. Some
circumspection and vigilance must be demanded of
them. The most common transactions of life would
be trammelled and embarrassed if the sole care were
directed to the protection of creditors who ought to
protect themselves.’

Rove oF EVIDENCE.—It cannot be denied that the
retention of possession is a circumstance which does not
lead necessarily to the giving of a delusive credit to the
vendor, and sometimes happens not to be irreconcilable
with a fair and honest contract free from all imagina-
tion of fraud. If, therefore, the object is to ascertain
the merits of the case, it would seem that to hold the
inference conclusive, and, in effect, an estoppel to all
further investigation, would be against the plainest
principles of presumptive evidence.*? The rule that the
retention of possession is a fraud per se is accordingly

 

* Haven v. Low, 2 N. H.13. The rule that possession should be deemed
conclusive evidence of title would not be any more effective to suppress
fraud. If by the inquisitions of the judicial crucible a transaction, both
honest and fair, may be alloyed until it is dishonest and fraudulent, by
the inverse power of transmutation, a fraud may be refined until it is equiv-
alent to honesty and truth. Iftruth may become constructive falsehood,
by the same rule falsehood may become constructive truth. If the posses-
sion of personal ‘chattels is or ought to be conclusive evidence of owner-
ship, it isalso, or ought to be, conclusive evidence that a person not in
possession is not the owner. All then that remains for the fraudulent debt-
or to do, who would conclusively place his chattels beyond the reach of
execution, is to place them in the ‘possession of his friend, against whom
no precess has been issued. Stoddard v. Butler, 20 Wend. 507, per Senator
Dickinson.

2 Sydnor v. Gee, 4 Leigh, 535; Davis v. Turner, 4 Gratt, 422,

° Davis v. Turner, 4 Gratt. 422.
108 POSSESSION.

conceded to be one of policy and not of evidence, and
it is admitted that upon no other ground can a court
be justified in holding a sale fraudulent per se which to
a jury is proved to be bona fide, and, in fact, free from
the imputation of any fraud.’ If the statute were am-
biguous or doubtful, then the courts in construing it
might be governed by motives of policy; but where
the statute is so plain and explicit there is no room for
such considerations. The courts can only look for the
fraudulent intent. If that is present, the transaction is
void; if that is absent, it is valid. Such are the im-
perative terms of the act. To disregard its terms and
enter into a consideration of the requirements of public
policy is to give no heed to the mandates of the statute
and to usurp legislative functions. Questions of policy
belong peculiarly to legislative bodies: questions of
law are proper subjects for the determination of the
courts.’

ENSNARES INNOCENT MEN.— The doctrine, however,
has been supposed to have the advantage of simplicity,
since it has been believed to afford a ready and easy
solution to all questions coming within its range. But
this supposed advantage is purchased at too dear a
price. It is often obtained by a sacrifice of the justice
of the case. How can it be otherwise when, in decid-
ing a case, the correct decision of which depends on the

 

‘Wilson v. Hooper, 12 Vt. 653; Kirtland v. Snow, 20 Conn. 23,

A Hanford y. Artcher, 4 Hill, 271. The difference between policy as
jaid down by a legislature and policy as enforced by courts is well il-
lustrated by the difference in their mode of treating this subject. The
latter prohibits all transactions where the vendor retains possession, while
the former simply corrects the evil by requiring that there shall be an
instrument in writing duly recorded, and obtains all the benefits that can
be derived from the retention of possession,
POSSESSION. 109

good or evil intent of the parties, one single circum-
stance is arbitrarily seized on, and made conclusive
evidence of evil intent, to the total exclusion of every
circumstance which would prove good intent. In
seeking to catch rogues the law ought not to ensnare
honest men. It may become so zealous against fraud
as to restrain the free action of honesty, a result that
would be most disastrous. Better is it that many
frauds should go undetected than that the means of de-
tection or prevention should treat honest men as guilty,
or teach men to be always suspicious of theineighbors,
and watchful that honest acts be precisely measured
according to the standard of legal morality.’

SIMPLICITY NOT ATTAINED.—This supposed advantage
of simplicity does not in fact exist. No one can glance
at the confused mass of authorities upon this subject
without perceiving that what was intended as a safe
and easy guide to the detection and suppression of
frauds has only led to an endless maze of disputation.
There is scarcely a proposition in regard to the essence
or the application of the doctrine upon which there
may not be found a conflict of authorities. Those who
doubt the truth of this will be best- convinced by ex-
ploring the field of authority. The doctrine, though
plausible, is extremely difficult in practice. It seeks to
make a mere question of law of that which, in the

 

1“In my long experience, I have had occasion to observe the mischievous
operation of the rule, for under its application I have found myself com-
pelled as judge to pronounce transactions to be fraudulent and void as to
creditors which were known to be perfectly fair and bona side, and was not -
intended or calculated to delay, hinder or defraud creditors, ( Davis v.
Turner, 4 Gratt. 422, per Cabell, J.)”

2To be strict as to the tithe of mint, anise and cummin, and forgetful
of the weightier matters of social duty. (Hugus v. Robinson, 24 Penn. 9.)
110 POSSESSION.

nature of things, isa mixed question of law and fact,
and carries within itself the elements of perplexity and
contrariety.. The numerous exceptions which have
been made to the operation of the rule are, moreover,
attended with the practical inconvenience of multiply-
ing collateral issues, both of law and of fact, without
throwing any light upon the truth and justice of the
cause. They involve questions of practicability, dis-
ability, diligence and notice, upon which the case may
be made to turn, irrespective of the fairness and good
faith of th@transaction. It is, moreover, somewhat re-
markable that a person should be convicted of a fraud
upon a nice question whether he has used reasonable
diligence or given due notice.’

Looxs onLy To Frorm.—There is also another grave
objection to the rule. It goes to the form rather than
the substance of the transaction, and, consequently, may
be readily evaded. In simulated contracts it is easy to
mold the conveyance so as to avoid the discrepancy.
Nothing more is necessary than to give to the transac-
tion the form of a sheriff’s sale, or of any of the other

 

> Davis v. Turner, 4 Gratt. 422. In those courts where the doctrine of
fraud per se is held, it has accordingly been found that there are no more
difficult and embarrassing questions than those which relate to the re-
spective provinces of the court and of the jury to determine what is law
and what is fact. One of the questions upon which difficulty has arisen is
fraud in the sale or transfer of chattels under 13 Eliz. c. 5. (McKibbin v.
Martin, 64 Penn. 352.)

* Davis v. Turner, 4 Gratt, 422. These exceptions must multiply as the
exigency of circumstances may require, until ultimately they destroy the
rule itself, or, what is the same thing, reduce it to one that is only prima
facie. Indeed, it seems impracticable to preserve unbroken any rule of in-
flexible rigor upon the subject, however inexorable in its terms, for the
mind is apt to revolt against the despotism of a judicial dogma that op-
presses the truth and justice of a cause, or to seek refuge in subtle distinc-
tions as artificial as the rule itself.
POSSESSION. 111

admitted exceptions to the rule. The very notoriety
which, in case of public sales, may be properly relied on
as evidence to repel the imputation of fraud, is some-
times resorted to as a mere disguise; for example, goods
may be purchased in at a sheriff’s sale in the name of a
confederate, with funds furtively furnished by or on the
part of the embarrassed debtor.’ The truth of the
matter is that the doctrine has been prompted by a
commendable wish to accomplish a desirable but im-
practicable object. If a short and easy mode could be
found of cutting fraud up by the roots the discovery
would be invaluable; but such an enterprise is beyond
the limits of human wisdom. In human institutions,
moreover, the question is not whether every evil con-
tingency can be avoided, but what arrangements will
be productive of the least inconvenience. But, even as
the test of a fraudulent purpose, the rule in question
has no claim to certainty; on the contrary, it concedes
its own fallibility by crushing mercilessly the most con-
vincing evidence of fairness and good faith.’

Nor coop porrcy.— Even on the simple ground of
policy—the only ground on which it can by any pos-
sibility be sustained—the rule is open to grave objec-
tions. It restricts the free circulation of personal prop-
erty, hampers the spirit of commerce, checks the
generous impulses of the heart, and prohibits the char-
ities of life. The farmer or mechanic finds it necessary

 

“Davis v. Turner, 4 Gratt. 422. It was accordingly found necessary in
New York to hold that the retention of possession after a sleriff’s sale is
prima facie evidence of fraud. (Farrington y. Caswell, 15 Johns. 430; Taylor
y. Mills, 2 Edw. Ch. 818; Gardenier v. Tubbs, 21 Wend. 169; Fonda v.
Gross, 15 Wend. 628.)

? Davis v. Turner, 4 Gratt. 422; Stoddard vy. Butler, 20 Wend. 507, per
Senator Dickinson.
112 POSSESSION.

to sell his implements of husbandry or the tools of his
trade, yet he cannot retain the possession, although
they are the only means of support for himself and
family. A minister of the gospel cannot retain the
horse that is essential to the performance of his
duties.2 Machinery must be removed from the manu-
factory? The vendor cannot even be permitted to
finish the articles which are in the process of manu-
facture* A man cannot purchase chattels, and leave
them with a feeble relative for the sake of comfort and
assistance.’ If the vendor and vendee live in the same
house, there cannot be a valid sale of the furniture in it
without a removal.®

Commerce PRoMoTED.—Illustrations of the danger of
false credit and fraudulent evasion of debt, whenever
delivery and change of possession do not accompany
and follow change of property, and of the modes in
which such frauds can be effected, can be readily fur-
nished, and their truth cannot be denied. Yet this is
but one, and that the narrowest side of the question;
whilst it is also that view of the matter which is most
frequently, indeed, almost exclusively presented to the

 

"Doane v. Eddy, 16 Wend. 523,

* Doane y. Eddy, 16 Wend. 523.

* Swift v. Thompson, 9 Ct. 63; Tobias v. Francis, 3 Vt. 425.

* Carter v. Watkins, 14 Ct. 240.

° The law, which regards and scans with scrupulous vigilance every
circumstance from which a legitimate inference of fraud or unfairness may
be drawn, is, at the same time, not so wanting in humanity as to forbid the
alleviation of distress and suffering by honest means. To hold such a
transaction inconsistent with good faith or the rights of the creditors
would be to stamp as a fraud what, by the law of God as well as by the
common consent of mankind, is esteemed as a virtue. (Henderson y. Mabry
18 Ala. 718; Mauldin v. Mitchell, 14 Ala. 814.)

* Steelwagon v. Jeffries, 44 Penn. 407.
POSSESSION. 113

examination of courts. Buta glance at the daily busi-
ness of life out of court presents another aspect of the
question. Transactions in which the goods are left in
the possession of the vendor have grown out of the
usages of modern society, the necessities of commerce,
the conveniences of daily life, and the wants and usages
of trade and industry. They have followed in the train
of commerce, credit and enterprise. Like them, they
have been largely productive of benefits to society.
Yet those benefits, like the results of all other human
actions, are not unmixed with evil. By such means,
the adventure, capacity, acquirements and industry of
the young or the needy have beer-aided and stimulated ;
large concerns of honorable but unfortunate merchants
have been settled to the greatest advantage of the
creditors and the least possible loss of the insolvent,
and the kindness of parents or the generosity of friends
has been enabled to preserve the comforts of a home to
the wife and children of a bankrupt, without the slight-
est injury or fraud to creditors. Society reaps nothing
but unquestioned benefit from nine-tenths of such trans-
actions occurring in actual life. The other tenth may
come before the courts. It is not then at all surprising
that this different experience should give a different
character to the whole in different minds. It is thus as
to all the operations of commerce beyond mere barter
and buying and selling for cash."

RIGHTS OF OTHERS BESIDES CREDITORS—Since the
retention of possession may in a multitude of cases be
beneficial and advantageous, there is another considera-
tion that is entitled to great strength. Neither the le-
gal nor the moral code should be administered for the

 

1 Cole v. White, 26 Wend. 511, per Senator Verplanck.
8
114 POSSESSION.

sole benefit of creditors. They become creditors by
their own volition, and have abundant means for their
own protection. General creditors ought not to be
placed upon a superior footing to him who furnishes
his poor neighbor with a cow to nourish his children
or a team to sow his crop or gather in his harvest.
If the commercial interest cannot be sustained without
trampling upon all others, and the ordinary charities of
life besides, the sooner it finds its level the better.
It is an idle dream to suppose that the cause of morals
can be advanced by establishing a rule which ministers
to the mercenary passions at the expense of the benevo-
lent affections, or that the fountain of justice will send
forth purer streams if they are forced to flow through
artificial channels. The principles of law are but the
enlightened and just conclusions of a moral people
pronounced by their own tribunals. There ought not,
therefore, to be two standards of morals, the one for
courts of justice, and the other for the people in their
ordinary intercourse, and when the law seeks to erect a
standard of its own, it abandons its own fundamental
principles and attempts an impossible task. Honesty
cannot be divided into chapters, nor morality defined
by sections.’

PRIMA FACIE EVIDENCE MAY BE EXPLAINED.—The
doctrine that the retention of possession will under all
circumstances render a transfer of personal property
fraudulent and void has not been laid down by any
court, nor adopted anywhere. There are admitted ex-
ceptions to the rule, varying in number and character
according to the strictness with which the rule is ad-
ministered. But evidence is either prima facie or con-

 

* Stoddard v, Butler, 20 Wend. 507, per Senator Dickinson,
POSSESSION. 115

clusive. If evidence is liable to be contradicted or ex-
plained it is only prima facie, but conclusive evidence
cannot be contradicted. Prima facie evidence, although
it admits the possibility of its falsity, yet is conclusive
unless contradicted or explained. Conclusive evidence
admits no such possibility of falsity. It is absolute ver-
ity. Any evidence which may be explained is not con-
clusive, but only prima facie. If, therefore, there are
special cases in which special reasons may be given to
show the fairness of the transaction notwithstanding the
retention of possession, those reasons must be shown by
evidence, and the nature of that evidence constitutes
the case a special one within the rule. This evi-
dence may be given in every case where it exists. It
follows, then, that in every case the vendee may, if he
can, show by evidence special reasons to take his case
out of the general rule. The fact of possession in the
vendor, as it may be explained, is not conclusive, but
only prima facie evidence of fraud.

EXPLANATORY EVIDENCE Is FOR JuRY.—The real point
of inquiry therefore is, not whether the retention of pos-
session is presumptive or conclusive evidence of fraud,
but whether the evidence in explanation of it is, in an
action at law, for the consideration of the court or the
jury. It is held in many cases that although the reten-
tion of possession is only presumptive evidence of fraud,
the special reasons which are permitted to take a case
out of the rule must be shown to and approved of by
the court.’

1 Hall v. Tuttle, 8 Wend. 375.

" Divver v. McLaughlin, 2 Wend. 596; Collins v. Brush, 9 Wend. 198 ;
Coburn v. Pickering, 3 N. H. 415; Toby v. Reed. 9 Conn. 216; Carter vy.
Watkins, 14 Conn. 240; Planters’ Bank v. Borland, 5 Ala, 531; Trask v.
Bowers, 4 N. H. 809; Mauldin v. Mitchell, 14 Ala. 814.

In Connecticut the practice is slightly different. Itis not according to

 
116 POSSESSION,

The presumption of fraud, however, arising from the
retention of possession, is simply a presumption of an
intent to hinder, delay and defraud creditors, and, con-
sequently, is a presumption of a fact. It is true that
the presumption is raised by the law, but only on the
same principles on which presumptions are raised in
other transactions. It is simply a presumption of a
fact raised by the law, a legal evidence of fraud, con-
clusive in the absence of contradictory testimony, but
open to refutation. It is only such a presumption that,
unless contradicted or explained, the jury ought to
believe it. The whole burden of proof is thrown
upon the grantee and he must make it appear that
he acted in good faith. It is strictly under the
statute a question of fact, such as a jury may judge of,
and must alone do so if the question comes before a
court of common law."

CouRT CANNOT DETERMINE SUFFICIENCY OF EXPLANA-
TORY EVIDENCE—The statute has not given the court
any power to determine what particular facts shall or
shall not be sufficient evidence of honest intention, nor
can it be derived from the acknowledged right to reject
incompetent evidence, for this does not imply the right
to exclude proof of such facts as by the ordinary laws of
evidence and the common understanding of men go to
prove honest intent, or to disprove deceit and collusion
merely because in the view of the court such evidence is

 

the course of the court to call this a fraud per se and to direct the jury to
find the sale void, but the question is submitted to the jury as a question
of fact, with instruction that if they find none of the established exceptions,
they will find the transaction fraudulent. Swift vy. Thompson, 9 Conn. 63.
But in Toby v. Reed. 9 Conn. 216, the term court was held to mean the
jury acting under the direction of the court. 3

* Stoddard vy. Butler, 20 Wend. 507, per Senator Verplanck.
POSSESSION. 117

not absolutely and in all cases demonstrative proof. It
does not authorize the court to create,a general rule of
policy, declaring that certain facts which are not always
of necessity incompatible with collusion shall never in
any case be received as proof of good faith. This is in
effect to declare that the question of intent shall be
wholly a question of law. This intent to hinder, delay
and defraud is a moral or intellectual fact, to be inferred
by the jury from such external facts and circumstances as
in the ordinary course of life would satisfy men of sound
judgment. The courts have never presumed to lay down
any arbitrary rule requiring some specific sort of evidence
conclusive to the point and excluding all other testimony.
Whatever fact can give probable indication of the moral
fact to be ascertained is relevant and must go to the
jury, unless excluded by some general law of evidence.
Of its weight the jury are the judges. In every question
of the fact of fraudulent intent, the intent is to be in-
ferred from external facts or circumstances, and good.
faith may be established in the same way. What cir-
cumstances will amount to proof can never be matter ot
general definition. The legal test is the sufficiency of
the evidence to satisfy the understanding and conscience
of the jury. Absolute metaphysical and demonstrative
certainty is not essential to proof by circumstances. It
is sufficient if they produce moral certainty to the ex-
clusion of reasonable doubts.’

 

? Cole v. White, 26 Wend. 511; s. 0. 24 Wend. 116.

In this case Senator Verplanck cites the following words of Kent,
Ch. J.: “The distribution of power, by which the court and jury mutual-
ly assist and check each other, seems to be the safest, and, consequently,
the wisest. The constructions of the judges on the intention of the party
may often be too speculative and refined, and not altogether just in their
application to every case. Their rules may have too technical a cast, and
118 POSSESSION.

a

Review or AvTHoRITIEs.—The question, having thus
far been considered on principle, will now be examined
in the light of the authorities.

The earliest case under the statute is Twyne’s case."
This was a criminal prosecution in the Star Chamber,
where the court was the judge of both the law and the
facts, and, consequently, there is not that discrimination
between law and fact which is found in trials at law.
This case arose as follows: Pierce was indebted to
Twyne in £400, and was indebted also to Chamberlin in
£200. Chamberlin brought an action of debt against
Pierce, and, pending the writ, Pierce being possessed of
goods and chattels of the value of £300, in secret made
a general deed of gift of all his goods and chattels, real
and personal whatsoever, to Twyne in satisfaction of his
debt. Notwithstanding this, Pierce continued in pos-

 

become in operation too severe and oppressive. To judge accurately of
motives and intentions does not require a master’s skill in the science of
the law. It depends more on the knowledge of the passions and of the
springs of human action, and may be the lot of ordinary experience and
sagacity.” And then adds: “I cannot forbear adding, that among the
many eminent public services and titles to lasting legal and literary honors
of this venerable and distinguished jurist, his uniform and zealous guardian-
ship of the trial by jury, even to the last hour of his judicial life, is con-
spicuous and remarkable. Eminent above his cotemporaries for profound
and extensive legal science, bringing to the consideration of every import-
ant point at once the black-letter lore of our ancient common law, and the
varied range of its subsequent changes, together with the legal reason of
the Roman code, down to the application of its doctrines by the great
continental jurists of our own days,—with all this rich store of scholar-
ship and legal science, he, above all our judges, was the foremost to con-
fess that there was still something that books cannot teach—that the knowl-
edge of the motives and springs of human action can be gained from every-
day experience better than from jucticial rules—and that such rules are
constantly liable to become harsh, technical, severe and oppressive, with-
out the correcting aid of the every-day experience of men and life found in
the jury-box.”
*3 Co. 80; 8. c. Moore, 638 (1602).
POSSESSION. 119

session of the goods and some of them he sold, and he
shore the sheep and marked them with his own mark.
Afterwards Chamberlin obtained judgment against
Pierce, and had a fier? facias directed to the sheriff of
Southampton, who, by force of the writ, went to make
execution of the goods, but divers persons, by the com-
mand of Twyne resisted him, claiming them to be the
goods of Twyne, by virtue of the deed. Whether this
conveyance was fraudulent and of no effect was the
question.

Among other “signs and marks of fraud,” the court
said, “The donor continued in possession and used the
goods as his own, and by reason thereof he traded and
trafficked with others, and defrauded and deceived
them.” The court also resolved that “No gift shall be
deemed dona fide which is accompanied with any trust,
as if a man be indebted to five several persons in the
several sums of £20, and hath goods of the value of
£20, and makes a gift of all his goods to one of them,
in satisfaction of his debt, but there is a trust between
them that the donee shall deal favorably with him in re-
gard of his poor estate, either to permit the donor, or
some other for him, or for his benefit, to use or have pos-
session of them, and is contented that he shall pay him
his debt when he is able—this shall not be called
bona fide.” Thereupon Coke gives the following advice:
“Immediately after the gift take the possession of the
goods, for continuance of possession in the donor is a
sign of trust.” These remarks show that the retention
of possession was at that time simply regarded asa mark
of fraud, similar in its character and effect to secrecy, the
pendency of a suit, unusual clauses, and the other signs
of fraud enumerated by the court. The trust mentioned
in the resolution was not simply a secret benefit, but a
120 POSSESSION.

trust by which the title was held for the use of the
debtor. Such a conveyance, by which the title is placed
nominally in one person while it is beneficially in an-
other, is unquestionably fraudulent, for it is merely col-
orable. Such trusts of chattels, when made in writing,
are expressly made void by the statute of 3 H., 7, ¢ 4,
and it was with reference to this that the court proba-
bly made the remark. It will also be noticed that Coke
simply holds the retention of possession to be the sign
of such a trust. Moreover, the possession retained in
this case was not a mere naked possession, but a posses-
sion implying ownership and jus disponendi, with the
knowledge and concurrence of the vendee. Pierce, the
vendor, not only continued in possession of the goods,
but he sold some of them. He shore the sheep, and
marked them with his own mark. There was, therefore,
a possession with an implication of ownership, and jus
disponendi; but that is a very different species of pos-
session from mere naked possession.

In Bucknal et al. v. Roiston,’ Brewer, a supercargo of
a ship which was to go a voyage to the East Indies,
having shipped on board several goods and commodities,
borrowed of the plaintiffs £600, and gave a bottomry
bond to pay £40 per cent. in case the ship should reign (as
they called it) three years, and at the same time made a
bill of sale to the plaintiffs of the goods and commodi-
ties he had on board, and of the produce and advantage
that should be made thereof; and this was in the nature
of a security or pledge for the re-payment of the £600
and £40 per cent. premium. Theship went her voyage,
and the goods were sold, and with the money others
bought, and those likewise invested in other goods, and

 

*Macdona v. Swiney, 8 Ir. Law (N. 8.), 73.
? Prec. Ch. 285 (1709).
POSSESSION, 121

so there had been several barters and exchange of several
sorts of goods. The ship, after three years, returned
home, but it so happened that Brewer died upon the sea
in his return home, and Roiston, who was a creditor of
his by judgment for £1,500, obtained before the sale of
those goods, got out letters of administration, and took
possession of the goods and commodities returned home,
and which belonged to Brewer. The plaintiffs there-
upon brought their bill to have an account and discovery
of the goods and satisfaction for the produce and advan-
tage that was made thereof. Upon these facts.the court
said: “That the trust of these goods appeared upon
the very face of the bill of sale; that though they were
sold to the plaintiffs, yet they trusted Brewer to negoti-
ate and sell them for their advantage, and Brewer's
keeping possession of them was not to give a false credit
to him, but for a particular purpose agreed upon at the
time of sale; that here the plaintiffs are presently en-
titled to the trust of these goods, and to all the advan-
tages consequential upon such trust, and may follow the
goods for that purpose, and, therefore, decreed an account
to be taken of the produce of those specific goods for
the satisfaction of the plaintiff’s claim.”

It was in the course of the argument in this cause
that Sir Edward Northey, the counsel for the defendant,
said: “It has been ruled forty times, in my experience,
at Guildhall, that if a man sells goods and still continues
in possession as visible owner of them, that such sale is
fraudulent and void as to creditors, and that the law has
been always so held.” Of this remark Savage, Ch. J.’,
justly observes: “If it was intended to say that such
continuance in possession was conclusive evidence of
fraud, and the fairness of the transaction might not be

 

‘ Hall y. Tuttle, 8 Wend. 375.
122 POSSESSION.

shewn by evidence, I can only say that not one of the
forty cases thus decided is to be found reported.” It
will also be noticed that in this case the bill of sale was
held to be valid, although the vendor remained in pos-
session of the goods.

In Stone v. Grubbam, which was an action of eject-
ment, Robert Cassey, who was possessed of a lease for
years, made a gift of all his goods and chattels, includ-
ing the lease, to Richard Saltingstone, but continued in
possession after the transfer, and it was urged that for
this reason the transfer was fraudulent. Coke, Ch. J.,
said: “If a man do mortgage his land and yet still con-
tinue his possession, no disseizin is wrought by this, and
so is Winnington’s case; if it was an absolute convey-
ance and a continuance in possession afterwards, this
shall be adjudged in law to be fraudulent, for this hath
the face of fraud; but otherwise it is, as it is here in this
case, where the conveyance was only conditionally, as
upon payment of money—there the interest doth not
pass absolutely, but upon a future condition, for the gift
was before upon the condition of the payment of such a
sum by Sir Richard Saltingstone. As to the fraud, do-
lus versatur in universalibus, but when the conveyance
is conditional, continuance in possession after this shall
not, in the judgment of the law, be said to be fraudu-
lent, and this is very clear; and, as to the value of the
lease, this is not at all material. As to the matter of fraud,
the same ought to be fraud at the beginning, for that
subsequent fraud will not make this conveyance to be
fraudulent clearly ; the whole court agreed herein. Ifa
man hath any intentions to evade out of the statute of
Eliz., c. 5, whatsoever he shall say afterwards shall
not amend the matter, but the same shall be fraud and

 

> 2 Buls, 217; 8. c. 1 Rol. Rep. 3 (1615).
POSSESSION. 123

be within the statute, and that secrecy is a great badge
of fraud, but yet no concluding proof; the whole court
agreed herein. It was then demanded (by reason of an
objection made) in whose custody the lease was after
the gift. It was answered, and so proved, that the same
was always after (and until the assignment made to one
Weston) in the custody of Sir Richard Saltingstone, to
whom the gift was made. If the same had afterwards
continued in the custody of Cassey (who made the gift)
then the same would have been clearly fraudulent; but,
in regard that the contrary is here proved, it shall not
be adjudged to be a fraudulent conveyance within the
statute ; the whole court agreed herein.”

This case is obviously open to criticism. It is stated
that a tenant for years, having made a lease at will,
and the tenant at will having been ejected, brought the
action for this ejectment of his lessee at will. But from
the facts, it appears that Cassey originally owned the
lease and transferred it to Saltingstone, and that Salting-
stone subsequently assigned it to Weston. None of
these persons, however, are parties to the suit. It is
not, therefore, clear how the question of fraud arose in
the case. In the next place, the question is not made to
turn upon the possession of the land, but upon the pos-
session of the lease. From the remarks in regard to se-
crecy, it would appear that the inquiry as to the custody
of the title papers was made with reference to that
point. It is, moreover, conceded that the rule in regard
to the retention of possession is not applicable to leases
or other interests in land.1 The report of this case in
Rolle’s Reports is briefer, but gives what may be con-

 

1 Cadogan v. Kennett, Cowp. 432; Ryall v. Rolle, 1 Ves. 348; s.c. 1
Atk. 165; Worsley v. De Mattos, 1 Burr, 467; Phettiplace v. Sayles, 4
Mason, 312.
124 POSSESSION.

sidered as the real point decided by the court. There
the instruction to the jury is, that “If a man makes a
gift, and the consideration is to bein the future, the con-
tinuance of the possession of the donor will not be
fraudulent, unless it be expressly proved that it was
made to defraud and to deceive creditors; as if a man
mortgage lands to another upon a future condition, if
the mortgagor continues in possession before the condi-
tion is broken, still he is not a disseizor, nor will it be
fraudulent, for it is the custom in all such mortgages to
suffer the mortgagor to continue in possession until con-
dition broken, for he has the land for the security of his
money, and before condition broken he is not to any
detriment.” It will also be observed that the transac-
tion in this case was sustained.

The distinction between a mortgage and an absolute
deed is also made in Lady Lambert’s case There itis
said that “If A., dona fide and for valuable considera-
tion, mortgage his land whereof he hath aterm of years
to B., upon condition that if he repay the money to B.
a year after that he shall re-enter, and B. doth covenant
with A. that he shall take the profits of it until that
time, &e., A. doth not pay the money, and B,, hoping
that he will pay it in time, doth suffer him to continue
in possession and take the profit of it two or three years
after, and in the interim judgment is had against A. up-
on abond, and execution awarded; in this case, execu-
tion shall not be made of this lease, for this deed of mort-
gage shall not be said to be fraudulent as to the creditor,
for when a conveyance is not fraudulent at the time of
making of it, it shall never be said to be fraudulent for
any matter ex post facto.”

 

? Shep. Touch. 65,
POSSESSION. 125

Tn Meggot v. Mills,! it was proved that Wilson exer-
cised the trade of a victualler, during which time Meg-
got furnished him with ale. Afterwards, he quit the
trade of a victualler, and exercised the trade of an inn-
keeper, and borrowed money of Mills (being Wilson’s
lessor) to buy goods to furnish his house, and for secu-
rity of the money made a bill of sale of the goods to
Mills, but kept the possession of them. After he became
an inn-keeper, Meggot continued to sell him drink as be-
fore. He, however, paid Meggot several sums of money
after he became an inn-keeper, amounting to as much as
the debt was when he quit the trade of a victualler, but
when he paid them he did not express upon what ac-
count. He was subsequently declared a bankrupt, and
Meggot was appointed his assignee. Meggot brought
an action in trover against Mills for the goods. Holt,
Ch. J., said: “If these goods of Wilson’s had been as-
signed to any other creditor, the keeping of the posses-
sion of them had made the bill of sale fraudulent as to
the other creditors. But since the original agreement
was thus, and that honestly, and really made for secur-
ing the money of the defendant Mills, which he had
lent to Wilson for this purpose, the agreement was good
and honest.”

In Cole v. Davies,’ it was resolved by Holt, Ch. J.,
“that if goods of A. are seized upon a fier? facias, and
sold to B. bona fide, upon valuable consideration, though
B. permits A. to have the goods in his possession upon
condition that A. shall pay to B. the money as he shall
raise it by the sale of the goods, this will not make the

execution fraudulent.”

 

141 Ld. Raym. 286; s. c. 12 Mod. 159 (1697).
241d. Raym, 724 (1698.)
126 POSSESSION.

The case of Ryall v. Rowles’ arose under the statute
of 21 James J, c. 19, but the general doctrine of the re-
tention of possession by the vendor was considered,
Burnet, J., said: “The next consideration is, in what
condition the creditors stood in relation to conditional
sales or mortgages by their debtors to their prejudice,
where the mortgagor continued in possession of the
goods mortgaged, and the statute governing this matter
is 18 Eliz., in which there is no distinction between
conditional and absolute sales, provided they are fraudu-
lent. This statute being made to protect creditors
against all conveyances to defraud them, it was incum-
bent on a court of equity, or a jury at common law,
upon considering the whole circumstances, to pronounce
whether the conveyance was made with such intent or
not. Where the neglect naturally tended to deceive credi-
tors, it has been held a badge of fraud where left in his
hands. But if, by concurrent circumstances it appeared
the title deeds were not left to defraud creditors, but
upon reasonable and honest purposes, or left with the
vendor not so as to deceive touching his substance, that,
being accompanied with other circumstances, could not
be pronounced a badge of fraud. Therefore, it lay open
upon this to determine whether fraudulent or not. The
leading case on this is Twyne’s case, where it is held
that it was upon a valuable consideration, but not dona
fide, from the continuing in possession and trading there-
with. It is difficult, unless in very special cases, to as-
sign a reason why an absolute or conditional vendee of
goods should leave them with the vendor unless to pro-
cure a collusive credit, and it is the same whether in ab-
solute or conditional sales, neither the statute nor the
reason of the thing making any difference. But it is in-

 

"1 Ves. 848; sc. 1 Atk. 165 (1749).
POSSESSION. 127

sisted there are several cases where there is a distinction
as to this possession after sale between conditional and
absolute conveyances of lands or goods. That of lands
is not applicable to a case of goods: the case cited for
this was Stone v. Grubbam, 2 Buls. 226, and 1 Rol.
Rep. 3, but no argument from thence, unless the posses-
sion of lands and goods after a conveyance was on the
same footing. Possession is not otherwise a badge of fraud
unless as calculated to deceive creditors. There is no way
of coming at the knowledge of who is owner of goods
but by seeing in whose possession they are; the posses-
sion of land is of a different nature—there may be a
possession as tenant at will, as every mortgagor is of a
mortgage before the condition is broken. Every one
desiring credit entitles to an inquiry into his substance,
and, therefore, because the possession of land is of an
ambiguous nature, as it may be in the hands of the ten-
ant as well as the owner, the title deeds, &c., may be re-
quired, but never at what market goods were bought,
the possession and usure of them being all. Lord Chief
Justice Holt takes up the case of Meggot v. Mills upon
the fraud, and gives it as his opinion that it was not
fraudulent, and it is very clear that it was not the dis-
tinction betwixt a conditional and absolute sale which
weighed with him at all. He distinguishes betwixt a
bill of sale to a landlord and to any other creditor, so
that it was his opinion that it was not fraudulent in case
of a landlord. But, though from all these cases it does
appear that in the construction of the 13 Eliz. there is
no distinction between conditional and absolute sales of
goods, if made with intent to defraud creditors, yet a
court of equity or a jury are left at large to construe
whether it was made with such intent or not.” These
remarks admit of but one construction—the retention
128 POSSESSION.

of possession is not regarded as decisive, but the ques-
tion of fraud is to be left to the jury to determine
from all the circumstances of the case.

The case of Worseley v. De Mattos’ arose under the
statute of 21 Jac. ¢. 19, but the doctrine of possession
was discussed. Lord Mansfield, in delivering the opin-
ion of the court, said: “ Every equivocal fact may be ex-
plained by circumstances. Hardly any deed is fraudu-
lent upon the mere face of it. It is a good sale if the
consideration be true; fraudulent if false; good if pos-
session immediately follows; bad if it do not; nay, the
not taking possession, being only evidence of fraud, may
be explained.”

Martin v. Podger et al.? was an action for trespass.
Verdict was given in favor of the plaintiff, and the ques-
tion arose upon a motion for a new trial. William Mar-
tin, being the owner of the goods in controversy, made a
bill of sale of them to the plaintiff, who was his father,
but remained in possession. The defendants seized the
goods in the execution of a writ against the son. Lord
Mansfield said: “As the goods were in the possession
of the son, I think the cai should have left it to the
jury hector, under these circumstances, the father had
any right to recover. Therefore, I incline that a new trial
should be granted.” A rule was accordingly entered
for a new trial, unless cause to the contrary were shown.
Afterwards, upon an attempt to show cause, the court,
finding the “ circumstances of the bill of sale to have been
extremely suspicious, were unamimous that the judge
ought to have left it to the jury upon the ground of
fraud.”

From the report of this case in Burrows’ Reports, it

 

‘4 Burr, 467 (1753),
*2 W. BL. 701; s, c. 5 Burr, 2681 (1770).
POSSESSION. 129

appears that the bill of sale was considered fraudulent
in fact. It is there stated, that, for want of proof of the
judgment, a verdict was found for the plaintiff, sub-
ject to the opinion of the court upon the question
whether it was necessary for the defendants to produce
a copy of the judgment upon which the writ of fier? fa-
cias issued. The court decided that it was necessary to
produce a copy of the judgment. “But the whole
court were likewise of opinion that this recovery in
this action, brought by the father upon a fraudulent
bill of sale, merely colorable, not a real, fair transaction,
but leaving the possession in the son, and fraudulent
even at common law, independent of the statute of 13
Eliz. ¢. 5, $ 2, was shameful, unreasonable, and against
justice, and that the verdict ought not to stand. It
might have been left to the jury whether the plaintiff
was in possession of the goods or not. It was a mat-
ter fit to be left toa jury. But it is a shameful thing
to set up this fraudulent, colorable bill of sale as a real
conveyance of the property.” Upon the motion for a
new trial Lord Mansfield said: “'The verdict arises from
a slip and inadvertence; it is against law and justice.
The plaintiff has no merits. The bill of sale was fraud-
ulent; the son remained in possession. The recovery is
manifestly contrary to reason and justice.”

Cadogan e al. v. Kennett ¢ al was an action. of
trover, brought by the plaintiffs who were trustees under
the marriage settlement of Lord Montfort against Ken-
nett who was a judgment creditor of Lord Montfort’s, .
and the other defendants who were sheriff's officers, to
recover certain goods taken by them in execution under
a fi fa. At the trial the marriage settlement was

 

12 Cowp. 482 (1776).
130 POSSESSION.

proved, by which it appeared that the goods in question,
which were the household goods belonging to Lord
Montfort, at his lordship’s house in town, were conveyed
to plaintiffs, as trustees for the use of Lord Montfort for
life, remainder to Lady Montfort for her life, remainder
to the first and other sons of the marriage in strict
settlement. At the time of making the settlement it
was known that Lord Montfort was in debt, but he
thought the fortune of the lady he was to marry was
amply sufficient to pay all the debts he owed at that
time, and had no idea of disappointing any creditor.
Kennett was a creditor of Lord Montfort’s at the time of
the settlement. At the trial Lord Mansfield thought the
possession of Lord Montfort was not fraudulent, be-
cause it was in pursuance, and in execution of the trust,
and the jury found a verdict for the plaintifts. Upona
motion for a new trial Lord Mansfield said: “Such a
construction is not to be madein support of creditors as
will make third persons sufferers. Therefore the statute
does not militate against any transaction dona fide, and
where there is no imagination of fraud, and so is the
common law. But if the transaction be not bona fide,
the circumstances of its being done for a valuable con-
sideration will not alone take it out of the statute. I
have known several cases where persons have given a
fair and full price for goods, and where the possession
was actually changed, yet being done for the purpose of
defeating creditors, the transaction has been held fraudu-
lent, and therefore void. There are many things which
are considered as circumstances of fraud. The statute
says not a word about possession. But the law says, if
after a sale of goods the vendor continue in possession,
and appear as the visible owner, it is evidence of fraud,
because goods pass by delivery, but it is not so in the
POSSESSION. 131

case of a lease, for that does not pass by delivery. The
question therefore in every case is whether the act done ~
is a bona fide transaction, or whether it is a trick and
contrivance to defeat creditors. An argument, however,
is drawn from the possession as a strong circumstance
of fraud; but it does not hold in this case. It is a part
of the trust that the goods shall continue in the house.”

From this review of the authorities it will be seen
that down to the time of Edwards v. Harben there was
not a single case in which a transaction was held to be
fraudulent on the ground of possession alone, and that
the obzter dicta of Coke, in Stone v. Grubbam, and of
Holt, in Meggot v. Mills, and the remarks of Sir Edward
Northey, in Bucknal v. Roiston, are all that can be found
to support the doctrine that the retention of possession
is conclusive evidence of fraud.

Edwards v. Harben,' was an action of assumpsit for
goods sold to the defendant’s testator. It was proved
that Mercer in his lifetime was indebted to the plaintiff
in the sum of £22 18s. 6d. for goods sold and delivered
and to the defendant in the sum of £191 for money lent.
Mercer offered to the defendant a bill of sale of his
goods, household furniture, and stock in trade in his
house at Lewes, by way of security for the debt. The
defendant refused to accept the same, unless he should
be at liberty to enter upon the effects and sell them
immediately after the expiration of fourteen days from the
execution thereof, in case the money should not be sooner
paid, to which Mercer agreed, and accordingly executed
a bill of sale. All the effects described in the bill of
sale remained in the possesion of Mercer until the time
of his death. After the death of Mercer and before the

 

127. R. 587, (1788).
132 POSSESSION.

expiration of fourteen days from the execution of the
bill of sale, the defendant entered the house of the de-
ceased, and took possession of the effects contained in
the bill of sale and afterwards sold them. The plaintiff
sued him as executor de son tort. At the trial a verdict
was found for the plaintiffs, subject to the opinion of
the court, upon these facts. Buller J. in delivering the
opinion of the court said: “On this case the question
arises whether the bill of sale be void or not. This
question came before the court in the last term, in the
case of Bamford v. Baron, on a motion for a new trial
from the Northern circuit, and after hearing that case
argued, we thought it right to take the opinion of all
the judges upon it. Accordingly we consulted with all
the judges, who are unanimously of opinion that unless
possession accompanies and follows the deed, it is fraud-
ulent and void. I lay stress upon the words ‘ accompa-
nies and follows’ because I shall mention some cases
where, though possession was not delivered at the time,
the conveyance was not held to be fraudulent. There
are many cases upon this subject from which it appears
to me that the principle which I have stated never
admitted of any serious doubt; so long ago as in the
ease in Bulstrode, the court held that an absolute con-
veyance, or gift of a lease for years, unattended with
possession was fraudulent, but, if the deed is conditional,
there the vendor’s continuing in possession does not
avoid it, because by the terms of the conveyance the
vendee is not to have the possession till he has perform-
ed the condition. Now here the bill of sale was on the
face of it absolute, and to take place immediately
and the possession was not delivered, and that case
makes the distinction between deeds or bills of sale
which are to take place immediately and those which
POSSESSION. 133

are to take place at some future time. For, in the latter
case the possession continuing in the vendor till that
future time, or till that condition is performed, is consist-
ent with the deed, and such possession comes within
the rule as accompanying and following the deed. That
case has been universally followed by all the cases since.
The Chancellor in the case of Bucknal v. Roiston, pro-
ceeded on the distinction which I have taken; he sup-
ported the deed because the want of possession was
consistent with it. This has been argued by the defend-
ant’s counsel as being a case in which the want of
possession is only evidence of fraud, and that it was not
such a circumstance per se as makes the transaction
fraudulent in point of law; that is the point which
we have considered, and we are all of opinion that if
there be nothing but the absolute conveyance, that, in
point of law, is fraudulent. On the other hand there
are cases where the vendor has continued in posses-
sion and the bill of sale has not been adjudged fraudu-
lent if the want of immediate possession be consistent
with the deed.”

It is important to see upon what grounds the coun-
sel, who impugned the validity of the bill of sale in
this case, based his argument. He says: “This bill of
sale is void, under 13 Eliz. ¢. 5, because it was not at-
tended with any mark of possession, notorious to the
rest of the world, but the vendor, by agreement with
the vendee, which constitutes a part of the original
transaction, continued in the possession and disposition
of the goods mentioned in the bill of sale until his
death. In considering this question, the two following
principles may be supported: 1st. Whenever the vendor
is found in the actual possession of goods which he has
sold, such continuance in possession is prima facie evi-
134 POSSESSION.

dence of an intent to delay, hinder, or defraud creditors,
and throws it on the other party to rebut it by showing
that the continuance in possession was with some other
view. 2d. Whenever there is a positive agreement be-
tween the parties that the vendor shall be permitted,
after the sale, to have for any space of time, not only the
mere manual occupation, but also the disposition of the
goods sold, to trade with them as his own, it is an actual
fraud on the other creditors of the vendor. As to the
first, every man is supposed to intend the natural and
probable consequences of his own acts, unless it can be
shown from circumstances that he acted upon some other
motives. Now, in a case like the present, the natural
and probable consequence of suffering another to con-
tinue in the possession of property not his own, is to
hinder, delay, and defraud creditors of their just debts
by giving him a false credit. Visible possession is the
only criterion of personal property. Secondly, the bill
of sale delivered under the circumstances of this case is
an actual fraud upon the vendor’s creditors. For here
the false credit is not only the natural and probable, but
the unavoidable, consequence of the deliberate act of the
parties—an act incapable of explanation from any other
motive than that of imposing on creditors—it is a
stipulation from which neither party can draw a fair ad-
vantage. Hither the vendor must be considered in the
intermediate time as a trustee for the vendee, or that he
is empowered to trade with the vendee’s property for
his own benefit. If the former, he receives no personal
benefit from the stipulation; if the latter, it necessarily
implies that the sale was not real, or that the considera-
tion was not adequate; otherwise the vendee would not
risk his property and give up part of his purchase for
nothing. Apparent personal property is the principal
POSSESSION. 135

foundation of general credit. It is material, therefore,
when a person is reduced to part with this kind of
property, especially such as is considered either as ob-
jects of personal accommodation, or as instruments of
trade, that his creditors should be aware of his situ-
ation.”

From these remarks it will be seen that possession
alone was simply considered prima facie evidence of
fraud. But the possession in this case was a possession
implying ownership and jus disponendi. There was an
actual, positive agreement that the vendor was not only
to keep possession of the goods, but to deal with them
as his own. It was the case of a trader who was daily
selling goods, and whose business it was to sell, and the
bill of sale covered his stock in trade The other cases
in England, where the transaction has been considered
fraudulent on account of the retention of possession,
are of the same character. In Paget v. Perchard’® the
vendor kept a public house. The bill of sale was of all
his effects, including all the liquors in the house as well
as the furniture. After the execution of the bill of
sale the vendor sold liquors in the usual way of his
trade, received the money and did not account for it.
Lord Kenyon held that, allowing the vendor to execute
acts of ownership after parting with all his property by
the bill of sale, was sufficient evidence of fraud. In
Wordall v. Smith* the vendor made a bill of sale of all
his effects, consisting of his household furniture and
his stock in trade as a publican, but continued to carry
on the business as usual for several weeks. The money
received for sales was placed in a till to which he had

 

* Macdona v. Swiney, 8 Ir. Law (N. 8.), 73.
? 1 Esp. 205, (1795).
2 1 Camp. 332, (1808).
136 POSSESSION.

access. Ryall v. Rowles,' and Worsely v. De Mattos
were also cases where traders mortgaged their stock in
trade, and after the execution of the mortgages con-
tinued to carry on their trade and sell the property
for their own benefit.2, On the other hand, in none of the
cases where the transaction has been sustained, notwith-
standing the retention of possession, was the vendor al-
lowed to sell the goods for his own benefit.’

As the other cases in England simply constituted ex-
ceptions to the doctrine laid down in Edwards y.

 

*1 Ves, 348.

? The only exception to these remarks is Bamford v. Baron, 2 T.R. 594.
That was an assignment for the benefit of creditors, and the debtor was
permitted to carry on the trade fora certain period, and account to the
trustee for all the profits of the trade from the date of the assignment. If
this case should be considered good law in England now, it would be
placed on a different ground.

In Edwards v. Harben, the ground chiefly relied on in argument, is
that by allowing the vendor to retain possession after the sale as apparent
owner, the vendee enables him to obtain a false credit. This would only
apply to subsequent creditors who trusted him on the faith of the property
It would not do to say that this of itself constitutes fraud, for then every
one who lends or hires property to another, a merchant who furnishes a
shop keeper with goods on credit, and thus enable him to hold himself
out as owner and thus obtain credit, would be guilty of the same sort of
fraud. Then it was argued, with respect to antecedent creditors, that it
tends to delay and hinder them—that relying on the appearance of
property in the debtor, they are prevented from taking proper means to en-
force their demands. But in that case the debtor conveyed the whole of
his property, and whether immediate possession had been taken by the
vendee or not, antecedent creditors would have been equally defeated. In
such cases, then, it cannot be the failure to take possession by the vendee
which operates the fraud on such creditors. (Smith v. Henry, 1 Hill, 16.)
Doubts as to what was really decided in Edwards y. Harben are raised
by the remarks of Buller, J., in Buller’s N. P. 258, and Hazelinton v. Gill,
3 T. R. 620, note. Weaver v. Joule, 91 E. ©. L. 309; s. o. 30. B.(N.8.)
809; Reed v. Blades, 5 Taunt. 212, supports the distinction stated in the
text.

* Hastwood vy. Brown, Ry. & Mood. 812; Hoffman y. Pitt, 5 Esp. 22
Eveleigh v. Purrsford, 2 Mood & Rob. 539. The only exception is Bento;
y. Thornhill, 2 Marsh, 427; s.c. 7 Taunt, 149,
POSSESSION. 137

Harben, until it was finally settled that the retention c
possession was only presumptive evidence of fraud, it i.
not necessary, in this connection, to trace them any
further. For the purpose of understanding the course
of the decisions upon this subject, it should be borne in
mind that the rule laid down by the court in that case
was that the possession must be consistent with the
deed. As this principle was addressed merely to the
form of the transaction, it was readily complied with by
the insertion of a stipulation providing that the vendor
might retain the possession, and several deeds have been
held valid simply on the ground of the presence of such
a clause! A rule that could be thus easily evaded was
of course practically worthless, and a modification was
found to be necessary.

In Vredenbergh v. White,’ Barrow v. Paxton’ and
Beals v. Guernsey,‘ it was held that possession was only
prima facie evidence of fraud, and open to explanation.
In Sturtevant v. Ballard,® the bill of sale contained a
stipulation that the vendor should have the use and
occupation of the articles for three months. Kent, Ch.
J. said: “The question arising upon this case is wheth-
er the sale is valid in law as against the judgment
creditor. The great poimt is whether the fact of
permitting the vendor to retain possession of the goods
did not render this sale fraudulent in law, notwith-
standing such permission was inserted in the deed
as a condition of the contract. If there had been no

 

* Wooderman v. Baldock, 8 Taunt. 676; Martindale v. Booth, 3B. &
A. 498.

’ 1 Johns. Cas. 156 (1799).

» 5 Johns. 258 (1810).

#8 Johns. 446 (1811).

° § Johns, 337 (1812).
138 POSSESSION.

such insertion, but the sale had been absolute on the
face of it, and possession had not immediately accompa-
nied and followed the sale, it would have been fraudu-
lent as against creditors, and the fraud in such case
would have been an inference or conclusion of law which
the Court would have been bound to pronounce. But
it by no means follows that such a sale, with such an
agreement attached to it and appearing on the face of
the deed is necessarily valid. There must be some suf-
ficient motive, and of which the Court is to judge, for
the non-delivery of the goods, or the law will still pre-
sume the sale to have been made with a view to ‘ delay,
hinder or defraud creditors.’ Delivery of possession is
so much of the essence of the sale of chattels that an
agreement to permit the vendor to keep possession is
an exception to the usual course of dealing, and requires
a satisfactory explanation. We may therefore safely
conclude that a voluntary sale of chattels, with an
agreement either in or out of the deed that the vendor
may keep possession is, except in special cases to be
shown to and approved of by the Court, fraudulent and
void as against creditors. This is clearly not one of
those cases.” Hamilton v. Russell! preceded this case
in point of time, but this case is the leading one in
America® upon this subject.

In Wickham v. Miller,’ Gates, J., held that the non-
delivery of the goods is no more than prima facie
evidence, and might be explained by circumstances, but
the decision did not rest upon that point. In Butts v.

 

? 1 Cranch, 309.

* Clow vy. Woods, 5 8. & R. 275; Coburn y. Pickering, 3 N. H. 415;
Patten v. Smith, 5 Ct. 196 ; Gibson y. Love, 4 Fla. 217; Hundley v. Webb,
3 J. J. Marsh, 643; Planters’ Bank y. Borland, 5 Ala, 531.

° 12 Johns, 820 (1815),
POSSESSION. 139

Swartout,' the plaintiff made a contract with the vendor,
who was a cabinet-maker, for a bureau. When nearly
completed, it was formally delivered but left with the
vendor to be trimmed. The proof also showed that the
vendor had other goods which he offered to the defend-
ant, who was a constable, to satisfy the execution in his
hands. Sutherland, J., said: “The question of fraud
depends upon the motive. The non-delivery of the
bureau is only one circumstance in proof of fraud, and
it is accounted for.”

The question arose again in Bissell v. Hopkins,? and
Savage, Ch. J., said: “The question in every case is
whether the act done is a bona fide transaction or
whether it is a trick and contrivance to defeat creditors.
The possession by the vendor of personal chattels after
the sale is not conclusive evidence of fraud. The vendee
may, notwithstanding, upon proof that the sale was
bona fide and for a valuable consideration, and that the
possession of the vendor after such sale was in pursuance
of some agreement not inconsistent with honesty in the
transaction, hold under his purchase against creditors.
A good reason is given, in my judgment, why the
vendor was not at once stripped of his property, as
thereby his power of acquiring the means to pay his
debts would have been taken from him.”

After this decision there were six decisions in New
York holding possession to be only presumptive evi-
dence of fraud, and one declaring that the explanation
must be satisfactory to the Court. Strict logic required
that Bissell v. Hopkins should be considered as overrul-
ing Sturtevant v. Ballard. But the genius of the law

 

12 Cow. 431 (1823).
? 3 Cow. 166 (1824).
140 POSSESSION.

demands that conflicting cases shall be reconciled wher-
ever reconciliation is possible. Accordingly, in Divver
v. McLaughlin, Savage, Ch. J., held that “The posses-
sion of personal property by the vendor or mortgagor
inconsistent with the face of the deed is prima facie
evidence of fraud, but subject to explanation. In other
words, such possession is, except in special cases and for
special reasons to be shown to and approved of. by the
Court, fraudulent and void as against creditors. The
mortgage in this case, after forfeiture without explana-
tion, must be held fraudulent and void as against cred-
itors. The only real question, therefore, is whether the
reasons shown why the possession was not changed are
such as can be approved of by the Court under the
special circumstances. The counsel for the defendant
in error contends that this is a question for the jury.
Upon a conceded state of facts fraud is a question of
law. There is in this case no dispute about the facts;
it is a question for the Court, therefore, to decide
whether the mortgage was valid or void as against
creditors.”

The same principle was asserted in Jennings v.
Carter’ and in Archer v. Hubbell.®

This was the condition of the question at the time
of the adoption of the Revised Code* In the revision
of the statute law it was attempted to settle all doubts
and discrepancies by positive legislation and strict defi-
nition, Accordingly, the revisers recommended that
“all sales or mortgages not accompanied by an imme-
diate delivery and followed by an actual and continued
change of possession should be void against the cred-

 

12 Wend. 596 (1829). 24 Wend. 514 (1880)
® 2 Wend. 446 (1829). * 1830.
POSSESSION. 141

itors of the vendor,” and this without any exception
and excluding all explanation. But the same consid-
erations of natural equity which had so often induced
courts to break in upon the judicial rule of legal policy,
had again equal weight with the legislature, so that, in
adopting the section recommended by the revisers, they
added a clause of exception, enabling the person claim-
ing under the sale or assignment to rebut the legal pre-
sumption of fraudulent intention by positive evidence
of the good faith of the transaction. It was accordingly,
enacted first nearly in the strong and comprehensive
language of the revisers that every sale of goods and
chattels and every assignment by way of mortgage or
security “unless the same be accompanied by an imme-
diate delivery, and be followed by an actual and con-
tinued change of possession, shall be pronounced to be
fraudulent and void as against creditors or subsequent
purchasers, and shall be conclusive evidence of fraud ;”
then the legislature, of its own motion, added the ex-
cepting and qualifying clause “unless it shall be made
to appear on the part of the person claiming under such
sale or assignment that the same was made in good faith
and without any intent to defraud such creditors or
purchasers.” This question of fraudulent intent a sub-
sequent section enacted should be a question of fact and
not of law.’ These enactments were thought to have
settled the law conclusively, but they merely afforded a
new and remarkable proof of the imperfection of human
language and the impossibility of definitely settling any
great rule of law for the complicated affairs of human

 

"Rey. Stat. 136, § 5.
142 POSSESSION.

life merely by the general language of a statute or the
provisions of a code.*

Hall v. Tuttle? arose before the adoption of the re
vised statutes, but was decided afterwards, and the
court held that they were simply declaratory of what
was understood to have been the law ever since the 13th
Eliz., ch. 5, and what the common law was before that
statute was enacted. But in Collins v. Brush? the court
said: “It is incumbent upon the vendee to repel the
presumption of fraud by showing some satisfactory rea,
son for his omission to take the property into his pos-
session. It is not sufficient to show a valuable consid-
eration ; some reason must be shown which the court
can approve for leaving the goods in the possession of
the vendor.” The same doctrine was held in other
cases.t It was also held that the distinction between
conditional and absolute sales was abolished,’ and that
the mere accommodation of the parties was not a satis-
factory explanation, so that the only effect of*the enact-
ments seemed to be to make the rule more rigorous.

The question arose again in Stoddard v. Butler.’

 

1 Stoddard v. Butler, 20 Wend. 507; Smith v. Acker, 23 Wend. 653,
per Senator Verplanck. The ground of all the errors of the decisions
upon this subject would seem to be the desire of the court to establish a
code of morals which shall put it out of the power of persons to commit
fraud, rather than to carry out the intention of the legislature to provide
means of detecting fraud when committed. Smith v. Acker, 23 Wend.
653, per Senator Hopkins.

28 Wend. 875 (1882).

29 Wend. 198 (1832).

4 Gardner v. Adams, 12 Wend. 297 (1834); Doane v. Eddy, 16 Wend.
528 (1887); Randall vy. Cook, 17 Wend. 58 (1837); Stevens v. Fisher, 19
Wend. 181 (1838) ; Beekman y. Bond, 19 Wend. 444 (1888).

° Gardner v. Adams, 12 Wend. 297; Doane v. Eddy, 16 Wend. 528;
Randall v. Cook, 17 Wend. 53.

° 20 Wend. 507; 8. c. 7 Paige, 168 (1888).
POSSESSION. 143

Butler, who was a creditor of Stoddard, instituted suit
and obtained judgment; but between the commence-
ment of the suit and the recovery of the judgment
Stoddard executed an absolute assignment of his stock
of goods and of certain notes and accounts to Thurber
& Townsend, for and towards the payment and satisfac-
tion of a debt due to them. The goods and notes and
accounts were left in the possession of Stoddard, who
was authorized, as the agent of the vendees, to sell the
goods and collect the notes and accounts, and they agreed
to give him a fair compensation for his services. The
complainants filed a bill in equity to set aside the con-
veyance as fraudulent. The vice-chancellor dismissed
the bill. The complainants appealed to the chancellor,
who reversed the decree of the vice-chancellor, and ad-
judged the assignment to be fraudulent. From this
decree the respondents appealed to the Court of Errors,
and thus for the first time was the question raised in
that court, the other decisions having been rendered in
the Supreme Court. The decree of the chancellor was
affirmed by a divided court: twelve for affirmance and
twelve for reversal. Two questions were raised: first,
whether possession alone rendered the transfer void, and
secondly, whether the property was disproportioned in
value to the amount of the debt intended to be satisfied,
thus making the assignment fraudulent in fact; and
upon both the court was divided, but three members of
the court—the President and Senators Tallmadge and
Edwards, who voted for affirmance—subsequently
adopted the opinion that the weight of the evidence to
repel the presumption was for the determination of the
jury, and two stated that their votes in this case were
given upon the ground of fraud in fact.’ The important

 

2 Smith v. Acker, 23 Wend. 658.
144 POSSESSION.

features of the case, however, were the opinions of Sen-
ator Dickinson and Senator Verplanck. That of Senator
Dickinson has been styled the ablest argument ever
delivered upon the subject, but his attempt to reconcile
all the conflicting decisions shows the condition of the
question at that time. The decision of the court left
the matter as unsettled as ever except that an impres-
sion prevailed that if a case should be brought before it
free from other questions, the doctrine of the Supreme
Court would be overruled.

The question came before it again in Smith v. Acker,’
and was the only point in the case. Bell made a mort-
gage to Smith & Hoe, and remained in possession.
The Sheriff seized the property on an execution against
Bell. Smith & Hoe brought an action of replevin.
The defendant moved for a non-suit. The plaintiff
insisted that the question of fraudulent intent should
be submitted as a question of fact to the jury. This
the judge refused to do, and ordered a nonsuit, and the
judgment was subsequently affirmed by the Supreme
Court. The plaintiffs thereupon sued out a writ of er-
ror, and removed the case into the Court of Errors.
The judgment was there reversed, on the ground that
the judge erred in assuming to decide upon the matters
of fact which belonged to the jury.

The question now took another aspect. Possession
was on all sides admitted to raise a presumption of
fraud, and the only point in dispute was in regard to
the mode of rebutting it, one party holding that the
explanation must be satisfactory to the court, and the
other party that the whole matter must be left to the

 

1 23 Wend. 658 (1840).
POSSESSION. 145

jury. In Stevens v. Fisher, Cowen, J., had endeavored
to support the former by placing the doctrine upon the
right of the court to reject incompetent and irrelevant
testimony. This proposition was argued more at length
in White v. Cole? He said: “The quo animo is a
question of fact for the jury when an explanation is
offered ; that is, as I understand the phrase, not any and
everything which may be called an explanation, but
evidence pertinent to the question of fact. It stands on
the footing of any other question of fact to be deter-
mined by the jury. If the testimony offered be perti-
nent in the opinion of the judge, it is his duty to receive
it; if not, he is bound to reject it. This isa universal
rule in relation to trying all questions of fact, which
separates the province of the judge from the jury. The
question arises upon the competency of the evidence,
not the sufficiency. The statute gives the court no
power to determine what particular facts shall or shall
not be sufficient evidence of honest intention. The
statute says nothing one way or the other as to what
facts shall persuade or what shall be pertinent. For all
this the judge is left tothe common law. The whole,
then, comes down to the question of what testimony is
admissible. The principle has, therefore, obtained an
almost universal footing, that the mere proof of a cbt,
to whatever amount, shall not be allowed to excuse the
continuance of possession; and that it cannot be so
regarded by a jury, however necessary the use of the
property may be for the debtor. These two circum.
stances prove nothing of themselves. They do not make
an explanation, nor can the jury regard them as sufii-

 

119 Wend. 181.
2 24 Wend. 116 (1840).

10
146 POSSESSION.

cient to overturn the presumption of fraud derivable
from the possession of the debtor. They are not perti-
nent evidence.”

The case was carried up for review to the Court of
Errors; and this new position was fairly met and over-
ruled. It was held that all facts or circumstances which
to the’ common understanding and conscience of men
may prove, or on their face may tend to prove, good
faith are within the rightful privilege of the jury to hear
and weigh; and the judgment was reversed because rel-
evant testimony on a question of the fact of fraudulent
intent was excluded from the consideration of the jury,
whose right it was to pass upon its weight and suf-
ficiency.

The controversy, however, was not yet terminated.
Up to this time it had been carried on in a spirit of
candid discussion, but now it took a partially personal
tone. In Randall v. Cook, Bronson, J., observed: “Had
it been declared fifty years ago that if a man conveyed
his personal chattels and still kept them himself, under
any pretence whatever, the transaction should be deemed
absolutely fraudulent and void as against creditors, it
would have saved an incalculable amount of time and
money which has been expended in the litigation of
questions of this kind, and it would, moreover, have
rendered a most important service in the cause of good
morals by removing all temptations to the numberless
frauds which have been committed for the purpose of
placing property beyond the reach of legal process.”
Commenting upon these remarks, Senator Dickinson?
said: “If, at the same time, the law had laid its inter-
diction upon all human intercourse as to exchanges or

 

‘Cole vy. White, 26 Wend. 511 (1841).
* Stoddard y. Butler, 20 Wend. 507.
POSSESSION. 147

purchases of property, the same result would have been
produced, and with about equal justice and propriety.”
Senator Hopkins also said :' “ The same reasoning would
be applicable to almost all the business transactions of
life. If everything capable of being perverted in the
hands of the dishonest to fraudulent purposes is to be
done away, the honest portions of the community will
have little left of all they deem most valuable. The
reasoning would be equally applicable to all sales upon
credit. Had all credits been prohibited fifty years ago
it would no doubt have saved an incalculable amount
of time and money.”

In Butler v. Van Wyck, Bronson, J., delivered a
dissenting opinion, and, observing that his remarks had
been made the text for spirited and witty commentary,
and styling the opinion of Senator Hopkins the prevail-
ing opinion, held that the decision of the Court of Er.
rors should be disregarded.

In Hanford v. Artcher,? the Court of Errors, adher-
ing to its previous decisions, felt called upon to notice
and comment upon this opinion, and vindicate its course.
In this case there was still another pomt. The question
was submitted to the jury, but the judge instructed
them that it was for them to decide whether there was
any good reason shown, which they could approve, why
there had not been an immediate delivery and an actual
and continued change of possession. The Court of Er.
rors, considering that the instruction restricted them to
the consideration of good reasons to excuse a want of
delivery and prevented them from considering the whole
bona fides of the case, reversed the judgment. President

 

? Smith v. Acker, 23 Wend. 653.
? 1 Hill, 4288.
°4 Hill, 271; 8. c. 1 Hill, 347 (1842).
148 POSSESSION.

Bradish said: “Instead of directing them to the only
inquiry expressly prescribed by the statute, the judge
led their minds to one not in terms embraced in its pro-
visions and calculated to present to them a false issue.
This was error. Instead of the inquiry thus directed
he should have charged the jury to inquire whether it
had been made to appear on the part of the vendee that
the sale was made in good faith and without any inten-
tion to defraud creditors. This would have been in the
language and spirit of the statute. But the direction
gave an artificial, restricted and erroneous interpretation
to the statute.” Jt will thus be seen that the difference
between the Court of Errors and the Supreme Court
was in regard to what the question was to be tried and
who should try it. The latter insisted that the issue
was whether there was any satisfactory explanation and
that the court should try it. The former said that the
issue was a question of intent and that the jury should
try it.

It would seem as though the questions were clearly
and unmistakably settled, but it was subsequently as-
serted in Randall v. Parker‘ that all the cases upon this
subject were reconcilable. This attempt at a reaction,
however, was only temporary, and the point is now
considered as finally and conclusively determined.? Thus
terminated one of the most remarkable controversies in
the whole annals of jurisprudence, a controversy extend-
ing over a period of more than two centuries and en-
gaging the attention of the most eminent jurists of the
times.

As this question may be considered to have turned

 

18 Sandf. 69.

* Thompson v. Blanchard, 4 N. Y 303; Miller v. Lockwood, 32 N. Y.
293; Van Buskirk vy. Warren, 39 N. Y. 119.
POSSESSION. 149

partly upon the peculiar statute of New York, it may
be well to glance briefly at the course of the decisions in
one other State. The doctrine that possession is con-
clusive evidence of fraud was held for a long time in
Virginia’. In Land v. Jeffries? Cabell, J., said: “The
question does not by any means involve any doubt as
to the effect of the mere circumstance of actual posses-
sion not passing from the grantor contemporaneously
with the execution of the conveyance, nor as to the effect
of the mere circumstance of such possession being found
in his hands afterwards. Nobody ever pretended that
either of these was such a circumstance per se as makes
the transaction fraudulent in law. Everybody admits
that the mere possession of personal property after an
absolute conveyance is only evidence of fraud to be sub-
mitted to the jury, and that it is only prima facie evi-
dence. Being only prima facie evidence of fraud, it
must, from its very nature, be liable to be rebutted by
other testimony, and, consequently, the possession of the
vendor is susceptible of explanation as to its character,
for the purpose of freeing it from the imputation of
fraud.

Many cases might be stated as examples for showing
the operation of this principle, but a single one will suf:
fice. A man purchases the chattel of another for full
consideration and bona fide. The chattel at the time of
the sale is on the farm of the vendor. It is the expec.
tation and intention of both parties that it shall be re-
moved with all reasonable dispatch, and it remains, in
the meantime, in the possession of the vendor, without

 

* Alexander v Deneale, 2 Munf. 341; Williamson v. Farley, Gilmer, 15;
Robertson y. Ewell, 3 Munf. 1 ; Glasscock v. Batton, 6 Rand, 78; Lewis y.
Adams, 6 Leigh, 320; Mason yv. Bond, 9 Leigh, 181; Tavenner y. Robin-
sor, 2 Rob. 280.

* 5 Rand, 211; s. c. 599.
150 POSSESSION.

any regard to his convenience, but solely to await the
reasonable convenience of the vendee in removing it.
But before the vendee can thus remove it an execution
comes out against the goods and chattels of the vendor,
and the sheriff, finding the chattel in his possession, levies
the execution upon it and sells it. In an action of tres-
pass brought by the vendee against the sheriff, if the
vendee exhibits nothing but his absolute bill of sale, the
sheriff may show that notwithstanding the bill of sale
the chattel was found by him-in the vendor’s possession.
Now, as the possession of personal chattels is prema
Jacie evidence of property in or of trust for the person
possessing, the possession of the vendor thus exhibited
would be, prima facie, inconsistent with the avowed
object of the absolute conveyance to the vendee, and
would therefore be prima facie evidence of a trust for
the vendor, and that the absolute conveyance was
intended as a cover to disguise and conceal that trust,
and thereby to delay, hinder and defraud creditors.
But still, this would be prima facie evidence only, liable
to be rebutted by other testimony.

If, therefore, the vendee shall prove that the posses-
sion of the gender was connected with no motive of
benefit or advantage to the vendor, but was for the rea-
sonable convenience of the vendee only, and was in-
tended to continue no longer than such reasonable con-
venience required, all presumption of property in the
vendor, or of trust for him is done away, and, conse-
quently, the possession of the vendor is shown not to be
inconsistent with the purpose of the absolute deed, and
thus the whole foundation for the inference of fraud
would be removed. But suppose that the sheriff should
not only prove that the chattel was found in the actual
possessison of the vendor, but that it was agreed be-
tween'the vendor and vendee at the time of the convey-
POSSESSION. 151

ance that the chattel should remain in the possession of
the vendor for a long or a short time, to be used by him
during that time as if he were the owner. Such a pos-
session by the vendor would be manifestly inconsistent
with the deed, for the deed purports to be for the sole
and exclusive benefit of the vendee, whereas the posses-
sion as explained by the agreement shows a trust for
the benefit of the vendor.”

The doctrine was still further relaxed in the cases of
Sydnor v. Gee! and Lewis v. Adams.?. The confidence
of the profession in the former decisions was thus shaken,
and doubts and uncertainty were produced. It was
therefore deemed best that the whole subject should be
reviewed, and the law finally settled, so as to preclude
future controversy. In Davis v. Turner,’ it was deter-
mined that possession simply raised a presumption of
fraud, and that the weight and sufficiency of the evi-
dence to rebut it was for the consideration of the jury.

THe avrHorities.—The preponderance of the au-
thorities are, at the present time, in favor of this
doctrine.*

 

14 Leigh, 535. ? 6 Leigh, 320. °4 Gratt. 422, 1848.

* England—Arundel v. Phipps, 10 Ves. 139; Martindale yv. Booth, 3 B.
& A.498; Eastwood v. Brown, Ry. & Mood, 312; Orlabar v. Harwar,
‘Comb, 348 ; Hoffman v. Pitt, 5 Esp. 22; Latimer y. Batson, 4 B. & C. 652;
Benton y. Thornhill, 2 Marsh, 427; s.c.'7 Taunt. 149; Martin v. Podger,
2 W. BL 701; s. c. 5 Burr. 2631; Carr v. Burdiss, 5 Tyrw. 309; Eveleigh
y. Purrsford, 2 Mood, & Rob. 539; Lindon v. Sharp, 6 M. & G. 895; Mac-
dona y. Swiney, 8 Ir. Law (N.8.), 738. Contra, Edwards v. Harben, 2 T.
R, 587; Wordallv. Smith, 1 Camp. 332; Paget v. Perchard, 1 Esp. 205;
Legard v. Linley, Clayt. 88. Maine—Haskell v. Greely, 3 Me. 425; Reed
v. Jewett, 5 Me. 96; Ulmer v. Hills, 8 Me. 326; Bartlett v. Blake, 37 Me.
124; Googins v. Gilmore, 47 Me. 9. Massachusetts—Brooks v. Powers,
15 Mass., 244; Shumway v. Rutter, 7 Pick. 56; s.c. 8 Pick. 443; Macom-
per v. Parker, 14 Pick. 497; Fletcher v. Willard, 14 Pick, 464; Allen v.
Wheeler, 4 Gray, 123. New York—Smith v. Acker, 23 Wend. 653; Cole
vy. White, 26 Wend. 511; s. c. 24 Wend. 116; Hanford v. Artcher, 4 Hill,
152 POSSESSION.

ACTUAL, NOT MERELY CONSTRUCTIVE, CHANGE OF POS-
srsston.—The change of possession required by the rule
is an actual, and not a merely constructive change. An
actual change, as distinguished from that which by the

 

271; 8. c. 1 Hill, 347; Beals v. Guernsey, & Johns. 446; Bissell v. Hopkins,
3 Cow. 166; Stewart v. Slater, 6 Duer, 83; Swift v. Hart, 12 Barb. 530;
Butts v. Swartout, 2 Cow. 431; Hall v. Tuttle, 8 Wend. 375; Prentiss v.
Slack, 1 Hill, 467; Fuller v. Acker, 1 Hill, 473; Lewis v. Stevenson, 2
Hall, 63; Groat v. Rees, 20 Barb. 26; Butler v. Miller, 1 N. Y. 496;
Thompson v. Blanchard, 4 N. Y. 308; Van Buskirk v. Warren, 39 N. Y.
119; s. c. 34 Barb. 457; Miller v. Lockwood, 32 N. Y. 293. Contra,,
Sturtevant v. Ballard, 9 Johns. 337; Williams v. Lowndes, 1 Hall, 579;
Divver v. McLaughlin, 2 Wend, 596; Doane v. Eddy, 16 Wend. 523; Col-
lins v. Brush, 9 Wend. 198; Randall v. Cook, 17 Wend. 53; Stevens v.
Fisher, 19 Wend. 181; Walker v. Snediker, Hoff. 145; Gardner v. Adams,
12 Wend. 297. New Jersey—Miller v. Pancoast, 5 Dutch, 250. Contra,
Chumar v. Wood, 1 Halst. 155. Virginia—Davis v. Turner, 4 Gratt. 422;
Forkner y. Stewart, 6 Gratt. 197. Contra, Williamson y. Farley, Gilmer,
15; Alexander y. Deneale, 2 Munf. 341; Robertson v. Ewell, 3 Munf. 1;
Land v. Jeffries, 5 Rand. 211, 599; Claytor v. Anthony, 6 Rand. 285;
Hardaway v. Manson, 2 Munf. 230; Lewis v. Adams, 6 Leigh. 320; Ma-
son v. Bond, 9 Leigh, 181; Tavenner vy. Robinson, 2 Rob. 280; Glasscock
vy. Batton, 6 Rand. 78. North Carolina—Cox v. Jackson, 1 Hayw. 423;.
Vick v. Keyes, 2 Hayw. 126; Falkner v. Perkins, 2 Hayw. 224; Trotter v.
Howard, 1 Hawk. 320; Smith v. Niel, 1 Hawk. 341; Rea v. Alexander, 5
Tred. 644. Contra, Gaither v. Mumford, 1 N.C. T. R. 167. South Caro-
lina—Terry v. Belcher, 1 Bailey, 568; Smith v. Henry, 2 Bailey, 118. Con-
tra, Kennedy vy. Ross, 2 Mills, 125; De Bardleben vy. Beekman, 1 Dessau,
346. The only exception to the rule in this State is that of a sale to a
creditor in consideration of an existing debt. In case of such a preference
there must be achange of the possession. Smith y. Henry, 1 Hill (8. C.), 16;
Anderson y. Fuller, 1 McMullan, Ch. 27; Fulmore vy. Burrows, 2 Rich.
Eq. 96; Jones v. Blake, 2 Hill, Ch. 629. Georgia—Butler v. Roll, Geo.
Decis, Part I, 87; Peck v. Land, 2 Kelly, 1; Carter v. Stanfield, 8 Geo. 49.
Alabama—Hobbs v. Bibb, 2 Stew. 54; Ayres v. Moore, 2 Stew. 336; Mar-
tin v. White, 2 Stew. 162; Blocker v, Burness, 2 Ala, 354; Killough v.
Steele, 1 Stew. & Port. 262; Borland v. Walker, 7 Ala. 269; Mayer v.
Clark, 40 Ala. 259. Contra, Planters’ Bank v. Borland, 5 Ala. 531; Bor-
land v. Mayo, 8 Ala. 104; Mauldin V. Mitchell, 14 Ala. 814; Millard v.
Hall, 24 Ala. 209. Mississippi—Carter v. Graves, 6 How. (Miss.) 9; Bo-
gard v. Gardley, 4 8. & M. 302; Rankin v. Holloway, 3 8S. & M. 614;
Comstock vy. Rayford, 18. & M. 423:8.c.12 8. & M. 369; Summers v.
Roos, 43 Miss. 749; Jayne y. Dillon, 27 Miss. 2983. Louisiana—Keller ve
POSSESSION. 153

mere intendment of the law follows the transfer of the
title, is an open, visible, public change, manifested by
such outward signs as render it evident that the posses-

 

Blanchard, 19 La. An. 53; Louisiana v. Ballio, 15 La. An. 655; Guice v.
Sanders, 21 La. An. 463; Haile v, Brewster, 13 La. An. 155; Sullice v.
Gradenigo, 15 La. An. 582. Contra, Jorda v. Lewis, 1 La. An. 59; Zach-
arie v. Kirk, 14 La, An. 433, Texas—Bryant v. Kelton, 1 Tex. 415; Mor-
gan v. Republic, 2 Tex. 279; McQuinnay v. Hitchcock, 8 Tex. 83; Con-
verse v. McKee, 14 Tex. 20; Earle v. Thomas, 14 Tex. 588; Gibson v-
Hill, 21 Tex. 225. Arkansas—Field v. Simco, 2 Eng. 269; Cocke v. Chap-
man, 2 Eng. 197; Stone v. Waggoner, 8 Eng. 204; George v. Norris, 23
Ark. 121. Tennessee—Callen v. Thompson, 3 Yerg. 475; Darwin v.
Handley, 3 Yerg. 502; Young v. Pate, 4 Yerg. 164; Grubbs v. Greer, 5:
Cold. 160. Contra, Ragan v. Kennedy, 1 Tenn. 91. Ohio—Rogers v.
Dare, Wright, 136; Burbridge v. Seely, Wright, 359; Hombeck v. Van-
metre, 9 Ohio, 153. Indiana—Foley v. Knight, 4 Blackf. 420; Watson v.
Williams, 4 Blackf. 26; Hankins v. Ingolls, 4 Blackf. 35; Jones v. Gott, 9
Ind. 240; Nutter v. Harris, 9 Ind. 88; Kane v. Drake, 27 Ind. 29. Wis-
consin— Whitney vy. Brunette, 8 Wis. 621; Smith v. Welch, 10 Wis. 91;
Bullis v. Borden, 21 Wis. 133; Bond v. Seymour, 1 Chand. 40; Sterling
v. Ripley, 8 Chand. 166. Michigan—Jackson y. Dean, 1 Doug. (Mich.)
519. United States—Wamer v. Norton, 20 How. 448. Contra, Hamilton
v. Russell, 1 Cranch. 309. Canada—Hunter v. Corbett, 7 U. C. (Q. B.) 75.
Contra—Vermont—Mott v. McNiel, 1 Aik. 162; Weeks v. Wead, 2
Aik. 64; Fuller v. Sears, 5 Vt. 527; Durkee v. Mahoney, 1 Aik. 116;
Beattie v. Robins, 2 Vt. 181. New Hampshire—Coburn v. Pickering, 3 N.
H. 415; Page v. Carpenter, 10 N. H. 77; Paul v. Crooker, 8 N. H. 288;
Shaw v. Thompson, 43 N H. 150, Contra, Haven vy. Low, 2 N. H. 18.
The doctrine in this State rests upon the theory of a secret trust: Co-
burn v. Pickering, 3N. H.415. Secrecy establishes it: Trask v. Bowers,
4.N.H. 309. Notoriety has a tendency to repel it: Paul v. Crooker, 8 N.
H. 288. Connecticut—Patten v. Smith, 4 Conn, 450; s. c. 5 Conn. 196;
Swift vy. Thompson, 9 Conn. 63; Crouch y. Carrier, 16 Conn. 505; Osborne
v. Tuller, 14 Conn. 529. Pennsylvania—Babb v. Clemson, 10 8. & R. 419;
Clow v. Woods, 5 8. & R. 275 ; Hoofsmith v. Cope, 6 Whart, 53; Milne v.
Henry, 40 Penn. 352; Eagle v. Eichelberger, 6 Watts, 29. Delaware—Bow-
man v. Herring, 4 Harrington, 458. Florida—Gibson v. Love, 4 Fla. 217;
Sanders v. Pepoon, 4 Fla. 465. Kentucky—Goldsbury v. May, 1 Litt. 254;
Dale v. Arnold, 2 Bibb, 605; Grimes v. Davis, 1 Litt. 241; Middleton v.
Carroll, 4 J. J. Marsh, 1438; Waller v. Todd, 3 Dana, 503; Wash v. Med-
ley, 1 Dana, 269. Illinois—Rhimes v. Phelps, 3 Gilman, 455 ; Thornton v.
Davenport, 1 Scam 296; Dexter v. Parkins, 22 Ill. 148; Ketchum v. Wat-
son, 24 Il]. 591; Bay v. Cook, 31 Ill. 336; Corgan vy. Frew, 39 Ml. 31.
Missouri—Claflin v. Rosenberg, 42 Mo. 439; s.c. 48 Mo. 593; Sibly
154 POSSESSION.

sion of the owner, as such, has wholly ceased.* The
possession of the vendor is always constructively the
possession of the vendee; the possession of an agent is
constructively the possession of his principal. If the
change is merely constructive, the presumption of fraud
arises” If there is no change a purchaser from the
vendee will stand in the same condition as his vendor,
the intermediate purchaser, and the presumption will be
that both sales were fraudulent, as against the credit-
ors of the first vendor. But if his vendor was never
the ostensible owner then his omission to take possession
raises no presumption of fraud.* If there is a change
of possession prior to a levy, there is no presumption
of fraud.

Burpen or proor.—The presumption is not merely
a presumption of a fraudulent intent on the part of the
vendor, but also of a concurrence in that intent on the
part of the vendee. The possession in the vendor, there-
fore, is all that need be shown, in the first instance, by
the creditor contesting the validity of the transaction,
and, that being shown, the statute presumes it to be

 

v. Hood, 3 Mo. 206; Foster v. Wallace, 2 Mo. 231; King v. Bailey 6 Mo.
575. Contra, s.c. 8 Mo. 332; Shepherd vy. Trigg, 7 Mo, 151; Ross v.
Crutsinger, 7 Mo. 245; Kuykendall v. McDonald, 15 Mo. 416; State v.
Smith, 31 Mo. 566; State v. Evans, 88 Mo. 150; Middleton v. Hoff, 15
Mo. 415; Howell v. Bell, 29 Mo. 135. California Code—Fitzgerald v.
Gorham, 4 Cal. 289; Whitney v. Stark, 8 Cal. 514. Nevada—Doack v.
Brubacker, 1 Nev. 218. Oregon—Monroe y. Hussey, 1 Oregon, 188. This
subject is regulated by statute in Delaware, California, Nevada, and Mis-
souri.

* Cutter v. Copeland, 18 Me. 127.

° Hanford vy. Artcher, 4 Hill, 271; Randall v. Parker, 3 Sandf. 69;
Otis v. Sill, 8 Barb. 102; Grant v. Lewis, 14 Wis. 487; Lesem v. Herriford,
44 Mo. 823.

‘ Lesem y. Herriford, 44 Mo. 323.

“ Burling vy. Patterson, 9 C. & P. 570.

° Allen v. Cowan, 23 N. Y. 502.
POSSESSION. 155

fraudulent.’ The burden is then thrown upon the
vendee to show, from all the circumstances surrounding
the transaction, its true character, in order to repel the
presumption of fraud,’ and the evidence in explanation
ought to be so clear as to leave no room to doubt the
fairness of the sale.’ If no evidence is given, the pre-
sumption becomes conclusive.’

Pornt oF inquiry.—The presumption is a presump-
tion of a fraudulent intent on the part of the vendor and
of participation in it on the part of the vendee. An in-
quiry, therefore, into the motives, reasons and causes for
not changing the possession is irrelevant so far as it is
designed to raise any distinct question for the determin-
ation of either the court or the jury. The true and sole
inquiry is, whether the presumption of fraud is repelled
by the evidence.” The court has no power to say what
particular facts shall or shall not be sufficient evidence
of honest intention. Its only power is to determine
what facts are admissible and relevant to determine the
issue. Any facts which impress the mind with a con-
viction that the sale was honest and dona fide, and was
not designed as a mere trick to cover the property,
should be submitted to the jury. No explanation can
be more satisfactory than that the possession was retain-

 

* Kuykendall vy. Hitchcock, 15 Mo. 416.

° Kuykendall v. Hitchcock, 15 Mo. 416; Davis v. Turner, 4 Gratt. 422;
Comstock v, Rayford, 12 8. & M. 369; Mills vy. Walton, 19 Tex. 271; Grant
v. Lewis, 14 Wis. 487.

3 Smith v. Henry, 2 Bailey, 118; Davis v. Turner, 4 Gratt. 422; Jones
v. Blake, 2 Hill Ch. 629.

* Carter v. Graves, 6 How. (Miss.) 9; Carter v. Stanfield, 8 Geo. 49;
Beers v. Dawson, 8 Geo. 556; Allen v. Cowan, 28 Barb. 99; Mayer v.
Webster, 18 Wis. 393; State v. Smith, 31 Mo. 566; State v. Rosenfield, 35
Mo. 472. ® Stewart v. Slater, 6 Duer, 83.

® Stoddard v. Butler, 20 Wend. 507, per Senator Dickinson.
156 POSSESSION.

ed for a fair and honest purpose.’ There is no more sat-
isfactory mode of disproving bad motives than by
proving such facts as indicate the existence of other mo-
tives, innocent at least or even laudable. The intention
of the parties and the circumstances attending the trans-
action, may always be shown in order to repel the pre-
sumption? All facts or circumstances which to the
common understanding and conscience of men may prove,
or on their face tend to prove, good faith, are according-
ly within the rightful privilege of the jury to hear and.
weigh. All facts such as commonly accompany and in-
dicate good faith ought to be permitted to go to them.
The fact of a valid and adequate consideration, the noto-
riety of the transaction, the attending circumstances,
the relation of the parties, all the facts indicating a fair
intent,* such circumstances of publicity, reasonableness
as to amount, time, value and quantity of property, diffi-
culty or inconvenience of removal, advantages of allow-
ing it to remain or other circumstances agreeable with the
ordinary course of business and fair dealing as may tend
to rebut the presumption and satisfy the jury that there
was not any intent to hinder, delay or defraud creditors,
reasons of family kindness, reasons of prudence, or, in
short, any such reasons as ordinarily influence the con-
duct of honest men are admissible.’ All such proof of facts
are subject to the general rules of the law of evidence.’

ConsrpEration.— Whether proof of a consideration
is essential will depend upon circumstances. Title once
acquired by gift is not divested by the mere fact that

 

1 Davis v. Turner, 4 Gratt. 422.

2 Smith v. Acker, 23 Wend. 653. * Homes v. Crane, 2 Pick. 607.
* Cole v. White, 26 Wend. 511.

® Smith v. Acker, 28 Wend. 653; Callen v. Thompson, 3 Yerg. 475.

° Cole v. White, 26 Wend. 511.
POSSESSION, 157

the donee does not immediately take the property into
his exclusive possession and appropriate it to his ex-
clusive use.’ But if the condition of the debtor is such
at the time the transaction takes place that a gift would
not be valid, then proof of a consideration is indispen-
sable. It is only on the proof of a good consideration
that the case can go to the jury on the question of
fraud? The proof must go beyond a mere paper ac-
knowledgment of it. There must be evidence dehors
the instrument. An acknowledgment in the deed is of
no force whatever in establishing the consideration as
against creditors? If the consideration is nothing more
than what in law is considered a valuable consideration,
it will not be sufficient, because a disproportion between
the price paid and the value, when unreasonable, is evi-
dence of a secret trust and creates a presumption of
fraud.* Cases in which the question of inadequacy of
consideration arises between the grantor and grantee of
a deed where suit is instituted for the purpose of setting
aside the grant on the ground of imposition are not ap-
plicable in determining a question of the fairness of a
consideration between a vendee and creditor under the
statute concerning fraudulent conveyances. What in-
adequacy of consideration would induce a court to set
aside a conveyance at the instance of the grantor on the
ground of imposition, is an entirely different question
from that degree of inadequacy, which would avoid a
sale on the ground of fraud in a suit by a creditor
against the vendee. Courts will not weigh the value of

 

" Danley v. Rector, 5 Eng. 211.

2 Tift v. Barton, 4 Denio. 171; Curd v. Lewis, 7 Gratt. 185.

® Allen y. Cowan, 28 Barb. 99; s.c. 23 N. Y. 502; Hanford v. Artcher,
4 Hill, 271.

4 Bryant y. Kelton, 1 Tex. 415; Kuykendall vy. Hitchcock, 15 Mo. 416;
contra, Keller v. Blanchard, 19 L. a An. 53.
158 POSSESSION.

the goods sold and the price received in very nice scales,
but, all circumstances considered, there must be a rea-
sonable and fair proportion between the one and the
other! The payment of an adequate price for the prop-
erty, affords a strong indication of good faith, and is a
circumstance to weaken, but still this alone may not be
inconsistent with the existence of a collusive design to
impose upon others.” Any intention to give the debtor a
false credit will vitiate the transaction, for transfers made
for the purpose of deceiving creditors are fraudulent.’

Province or A gury.—The whole circumstances
should be submitted to the jury, and from all parts of
the transaction taken together, it should be determined
whether the transaction was or was not fraudulent in
the concoction of itt If there is no proof to rebut the
presumption, there is nothing to be left to the jury to
pass upon.” If there is any evidence of good faith,
the court in submitting the question should instruct the
jury that, because the possession is not changed, the law
presumes the transfer to be fraudulent and void as
against creditors, and casts the burthen of disproving
fraud upon the person claiming under it.® If he fails
in his evidence to show that the transfer was made in
good faith without any intent to defraud. creditors, the
presumption of fraud first raised by the law becomes.

 

? Kuykendall v. Hitchcock, 15 Mo. 416; State v. Evans, 38 Mo, 150.

? Smith v. Acker, 23 Wend. 653; Bryant v. Kelton, 1 Tex. 415.

* Homesv. Crane, 2 Pick. 607; D’Wolf v. Harris,4 Mason, 534; Ross.
vy. Crutsinger, 7 Mo. 245.

‘ Haven v. Low, 2N. H. 13; Homes v. Crane, 2? Pick..607.

* Tift v. Barton, 4 Denio, 171; Curd v. Lewis, 7 Gratt, 185.

* Griswold y. Sheldon, 4 N. Y. 580; Smith v. Welch, 10 Wis. 91;,

Smith vy. Henry, 2 Bailey, 118; Gibson vy. Hill, 21 Tex. 225; Hartman v.
Vogel, 41 Mo, 570.
POSSESSION. 159:

conclusive.’ If the verdict is clearly erroneous, the
court may grant a new trial.’

To WHAT TRANSACTIONS THE RULE APPLIES.—The rea-
son why the retention of possession raises a presumption
of fraud is because it tends to deceive creditors by giv-
ing the debtor a false credit, and because it is out of the
ordinary course of business, and therefore indicates a
secret trust. It is manifest that these reasons apply
equally to all transactions, no matter what may be
the form of the transfer. The manner in which the
parties deal is merely evidence to show good faith.
The rule is one in regard to the burden of proof, and
the character of the instrument of transfer and the mode.
of making it are matters having more or less weight
to show the fairness of the transaction. It applies to
a concurrent possession,’ mortgages,* especially after

 

1 Kuykendall v. Hitchcock, 15 Mo. 416. The vendor may remain in
possession until performance of condition by vendee. Scott v. Winship
20 Geo, 429. A partner may buy out the firm goods, employ his copart-
ner and continue to use the firm name. Hamill v. Willett, 6 Bosw. 533.
The law does not require that the vendor, acting as agent, should make
known his agency to others to make his acts effectual in behalf of his prin-
cipal. His failing to do so is mere evidence of fraud. Cutter v. Copeland,
18 Mo. 127. A sleigh purchased in the summer may be left with the vend-
or till winter. Clute v. Fitch, 25 Barb. 428.

? Vance vy. Phillips, 6 Hill, 488; Dodd v. McCraw, 3 Eng. 83; Potter
y. Payne, 21 Ct. 361; Randall v. Parker, 3 Sandf. 69. It is carrying a dis-
trust of juries too far to suppose them incapable, with the aid of a whole-
some prima fucie presumption, to administer justice on this subject in the
true spirit of the statute. It is better to confine the interposition of the
court to guiding instead of driving them by instructions and to the power
of granting new trials in cases of plain deviation. Davis v. Turner, 4
Gratt. 422. 3 Stadtler v. Wood, 24 Tex. 622.

4 Hombeck vy. Vanmetre, 9 Ohio, 153; Ryall v. Rowles, 1 Ves. 348; s..
c.1 Atk. 165; Miller v. Pancoast, 5 Dutch. 250; Runyon v. Groshon, 1
Beasley, 86; Eveleigh y. Pursford, 2 Mood. & Rob. 539; Merrill v. Daw-
son, 1 Hemp. 563; Killough v. Steele, 1 Stew. & Port. 262. Contra, Mitch-
ell y. Beal, 8 Yerg. 134; Maney v. Killough, 7 Yerg. 440; Gist v. Press-
ley, 2 Hill, Ch. 318; Desha v. Scales, 6 Ala. 356; Cutter v. Copeland, 18:
Me. 127; Snyder v. Hitt, 2 Dana, 204.
160 POSSESSION.

default,’ deeds containing a stipulation for the posses-
sion,’ and sales under legal process,’ whether the pur-
chase is by the plaintiff‘ or a third person.” In all
transactions of this kind, when a valuable consideration
is proved, the only question that remains is one of good
or bad faith.6 The rule in regard to the retention of
possession applies to choses in action as well as to per-
sonal property,’ especially if they are negotiable.”

PossEssioN oF LAND.—-The rule that possession is
presumptive evidence of fraud -does not apply to con-
veyances of land. The reason for the distinction is
manifest. In the case of chattels, possession is prima
facie evidence of ownership. Upon this evidence of
ownership creditors have aright to rely: otherwise there
would be no protection against secret or collusive trans-

 

* Maney v. Killough, 7 Yerg. 440; Bank v.Gourdon, Speers Ch. 439;
Shurtleff v. Willard, 19 Pick. 202; Bogard vy. Gardley, 6 5S. & M. 302
Hankins v. Ingols, 4 Blackf. 85; Wiswall v. Ticknor, 6 Ala 178; Ravisies
y. Alston, 5 Ala, 297; North vy. Crowell, 11 N. H. 251. Contra, Fishburne
yv. Kuvhardt, 2 Speers, 556. ? Sommerville v. Horton, 4 Yerg. 541.

® Gardenier v. Tubbs, 21 Wend. 169; Floyd v. Goodwin, 8 Yerg. 484;
Creagh v. Savage, 14 Ala. 454; Williams v. Kelsey, 6 Geo. 365; Stovall
v. Farmers’ Bank, 8 8. & M. 305. Contra, Garland yv. Chambers, 11 8. &
M. 337; Foster v. Pugh, 12 8. & M. 416; Ewing v. Cargill, 18 8. & M. 79;
Wyatt v. Stewart, 34 Ala. 716; Montgomery v. Kirksey, 26 Ala. 172;
Guignard vy. Aldrich, 10 Rich. Eq. 253.

* Farrington v. Caswell, 15 Johns. 430; Gardenier v. Tubbs, 21 Wend.
169; Taylor v. Mills, 2 Edw. Ch. 318,

° Fonda v. Gross, 15 Wend. 628; Breckenridge v. Anderson, 8 J. J.
Marsh, 710; Kilby v. Haggin, 3 J. J. Marsh, 208.

° Latimer v. Batson, 4 B. & C, 652; Eveleigh v. Purrsford, 2 Mood. &
Rob, 539. The reason for the conflict amoung the cases upon the points
just considered is historical rather than logical. The mode of conveyance
was first used to constitute an exception to the doctrine of fraud per se,
and then some ot the courts, losing sight of this fact, considered it as con-
stituting an exception to the rule of presumptive evidence.

* Welsh y. Bekey, 1 Penn. 57; Woodbridge yv. Perkins, 3 Day, 364 ;
Hall v. Redding, 18 Cal. 214; Currie v. Hart, 2 Sandf. Ch. 853; vide Brown-
ing v. Hart, 6 Barb, 91; Livingston v. Littell, 15 Wis. 218.

* Mead v. Phillips, 1 Sandf. Ch. 83.
POSSESSION. 161

fers. But while possession of lands may be treated for
some purposes and is regarded as the lowest evidence of
title, yet the public look not to the possession, but to
the title deeds or the proper records, to obtain proofs of
title to such property. Creditors do this, and so does
every person instituting an inquiry as to the condition
of the title to a particular tract of land. The possession
may with perfect consistency be in one person and the
title in another. No one need be deceived unless he will.
To hold that possession of realty by the vendor after sale
is per se presumptive evidence of fraud would be in effect
to abolish the distinction known and acknowledged
between personal and real property, and to lose sight of
the different methods for evidencing the title to the two
kinds of property.t But the possession of the grantor is
proper to be submitted to the jury. It must be taken,
however, in connection with all the circumstances of the
case.” Acts of ownership® or possession for a long time*
may raise a presumption of fraud.

PossESSION WITH JUS DIsPoNENDI—The mere retention
of possession of personal property is altogether different
from the retention of possession accompanied with a
power to dispose of it for the grantor’s own benefit. Such
a power in a mortgage is inconsistent with the nature

 

? Ryall v. Rowles, 1 Ves. 848; s.c. 1 Atk. 165; Cadogan v. Kennett,
2 Cowp. 432; Suiter v. Turner, 10 Iowa, 517; Steward v. Thomas, 35 Mo.
202; Hempstead v. Johnston, 18 Ark. 123; Wooten v. Clark, 23 Miss. 75;
Noble v. Coleman, 16 Ala. 77; Barr v. H..tch, 3 Ohio, 527; Smith v. Low-
ell, 6 N. H. 67. Contra, Peck v. Land, 2 Kelly, 1; Belk v. Massey, 11
Rich 614; Bachemin v. Chaperon, 15 La. An. 4. When several lots are
conveyed by one deed, the possession of a part of the property conveyed
is prima facie evidence of the whole transaction, and not the transfer of
the particular lot retained, is fraudulent. Perkins v. Patten, 10 Geo, 241.

? Steward v. Thomas, 35 Mo. 202; Barr v. Hatch, 3 Ohio, 527.

® Smith v. Lowell, 6 N. H. 67; Hancock v. Horan, 15 Tex. 507.

* Wooten v. Clark, 23 Miss. 75; Noble v. Coleman, 16 Ala, 77.

11 :
162 POSSESSION.

and character of the instrument, and is tantamount to
a power of revocation. The object of a mortgage is to
obtain a security beyond a simple reliance upon the
honesty and ability of the debtor to pay, and to guard
against the risk of all the property of the debtor being
swept off by other creditors by fastening a special
lien upon that covered by the mortgage. But a mort-
gage, with possession and power of disposition in the
mortgagor for his own benefit, is nothing at last but a
reliance upon the honesty of the mortgagor, and, in fact,
is no security, as it is in the power of the mortgagor at
any moment to defeat the mortgage lien by an entire
disposition of the whole property. Such a mortgage is
no certain security upon specific property. It depends
entirely upon the honesty and good faith of the debtor.
As he may dispose of it to creditors at will to satisfy
his debts, there is no reason why creditors may not seize
it against his will for the same object.

In such case the whole right to dispose of the prop-
erty to pay a debt depends upon the will of the debtor,
unaffected by the rights of the mortgagee, and there is
no reason in permitting the will of the debtor to deter-
mine whether property shall legally go to pay his debts
or not. If it is the will of the debtor to appropriate
the mortgaged property to pay his debts, it is binding
as against the mortgagee; but if it is not the will of
the debtor, and the property is seized upon execution,
the rights of the mortgagee, if the mortgage is valid,
fasten upon the property and take it away from the
execution creditor. The property, therefore, isnot held
by the mortgage, but the will of the debtor, because, if
the debtor sees proper to dispose of it, he has the power
under the mortgage. He may dispose of the property,
defeat the mortgage, and put the money in his own
pocket, but if he refuses to pay his debts and the prop-
POSSESSION. 163

erty is taken on execution, the mortgagee steps in and
restores it to the debtor. Such a mortgagee is not an
operative instrument between the parties. It is no
security so far as the debtor is concerned, and its only
operation and effect is to ward off creditors. It is, there-
fore, fraudulent and void! The terms of the instrument,
however, must plainly express the right of the mort-
gagor to dispose of the property or the implication must
be a necessary one.” A mere stipulation that property
subsequently acquired shall be subject to the mortgage
does not render it void.?

 

> Collins v. Myers, 16 Ohio, 547; Griswold v. Sheldon, 4 N. Y. 580;
Spies v. Boyd, 1 E. D. Smith, 445; s. c. 11 Leg. Obs. 54; Armstrong v.
Tuttle, 34 Mo. 432; Harman v. Abbey, 7 Ohio St. R. 218; Billingsley v.
Bunce, 28 Mo, 547; King v. Kenan, 38 Ala. 68; Read v. Wilson, 22 Ml.
377; Stanley v. Bunce, 27 Mo. 269; Constantine v. Twelves, 29 Ala. 607 ;
Addington v. Etheredge, 12 Gratt. 436; Walter v. Wimer, 24 Mo. 63,
Brooks vy. Wimer, 20 Mo. 508; Ranlett v. Blodgett, 17 N. H. 298; Mc-
Lachlan v. Wright, 3 Wend. 348; Bishop v. Warner, 19 Conn. 460; John-
son v. Thweatt, 18 Ala. 741; Price v. Mazange, 21 Ala. 701; Carpenter v.
Simmons, 1 Robt. 360; Ticknor vy. Wiswall, 9 Ala. 305; Bowen v. Clark,
5 A. L. Reg. 208; Lang v. Lee, 3 Rand. 410; Farmers’ Bank vy. Douglass,
11 8. & M. 469; Martin v. Maddox, 24 Mo. 575; Martin v. Rice, 24 Mo.
581; Shaw v. Lowry, Wright, 190; Edgell v. Hart, 18 Barb. 380; s.c. 9 N.
Y. 213; Russell v. Winne, 37 N. Y. 591; 8. c. 4 Abb. Pr. (N. 8.) 384;
Welsh v. Beckey, 1 Penn. 57; Doyle y. Smith, 1 Cold. 15; Reed v. Blades,
5 Taunt 212; Divver v. McLaughlin, 2 Wend. 596; Wood v. Lowry, 17
Wend. 492; Simpson v. Mitchell, 8 Yerg. 417; Place v. Longworthy, 13
Wis. 629; Jordan v Turner, 3 Blackf. 309; Milburn v. Waugh, 11 Mo.
869; Hickman v. Perrin, 6 Cold. 185; vide Jones vy. Huggeford, 3 Met.
515; Briggs v. Parkman, 2 Met. 258; Codman v. Freeman, 3 Cush. 306;
Googins v. Gilmore, 47 Me. 9; Hughes v. Corey, 20 Iowa, 399; Jessup v.
Bridge, 11 Iowa, 572; Wilhelmi v. Leonard, 138 Iowa, 330; Torbert v.
Hayden, 11 Iowa, 485; Levy v. Welsh, 2 Edw. Ch. 488; Stedman v. Vick-
ery, 42 Me. 182; Gay v. Bidwell, 7 Mich. 519; Mitchell v. Winslow, 2 Story,
630; Barnard v. Eaton, 2 Cush. 294; Oliver v. Eaton, 7 Mich. 108; Camp-
bell v. Leonard, 11 Iowa, 489; Benton v. Thornhill, 7 Taunt. 149; Brinley
vy. Spring, 7 Me. 241; Abbott v. Goodwin, 20 Me. 408; Macomber v. Parker.
14 Pick. 497.

2 Voorhis v. Langsdorf, 31 Mo. 451.

3 Codman y. Freeman, 8 Cush. 306; Gardner v. McEwen, 19 N. Y. 123 ;
164 POSSESSION.

PaRoL POWER TO SELL.—It is immaterial whether the
power to sell the property is contained in the mortgage
or is conferred by a parol agreement made at the time
of its execution. If the mortgage is made and delivered
under such an arrangement and with such a purpose, it
is alike fraudulent and void, although the instrument
does not on its face express that intent. It is because
the instrument is made and delivered with intent that
it shall operate in a manner which hinders, delays and
defrauds creditors that it is void, and this.intent may be
proved by evidence dehors the instrument. The arrange-
ment makes the instrument necessarily fraudulent, be-
cause it operates of necessity to hinder, delay and defraud
creditors, by securing to the debtor the use and benefit
of his property and its proceeds while it protects it from
levy and sale for the payment of his debts.’ It must be
shown, however, that sales made by the mortgagor were
made with the knowledge or consent of the mortgagee.’
A sale by a mortgagor or vendor, when made contrary
to the purpose for which the property is left in his pos-
session, will not vitiate the transfer.*

 

Brinley v. Spring, 7 Me. 241; State v. Tasker, 31 Mo. 445; Voorhis y.
Langsdorf, 31 Mo. 451; State v. Byrne, 35 Mo. 147; Hickman v. Perrin, 6
Cold, 135.

1 Collins v. Myers, 16 Ohio, 547; Griswold v. Sheldon, 4 N. Y. 589;
Delaware v. Ensign, 21 Barb. 85; Freeman v. Rawson, 5 Ohio, St. R. 1;
Russell v. Winne, 87 N. Y. 591; 8.c.4 Abb. Pr. (N. S.) 884; Robbins v.
Parker, 3 Met. 117; Gardner v. McEwen, 19 N. Y. 123; Marston v. Vultee,
12 Abb. Pr. 143; New Alb. Ins. Co. v. Wilcoxson, 21 Ind. 355 ; Howerton
v. Holt, 23 Tex. 60; in re Kahley eé a7. 4 B. R. 124; Harvey v. Crane, 5
B. R. 218; in re Manly, 3 B.R. 75; 8. c. 2 L. T. B. 89; Barnet v. Fergus,
51 Ill, 852; Steinart v. Leuster, 23 Wis. 136; Ross v. Wilson, 7 Bush.
29.

2 Frost v. Warren, 42 N. Y. 204; Williston v. Jones, 6 Duer, 504;
Summers v. Roos, 43 Miss. 749; Burgin v. Burgin, 1 red. 453.

® Macdona v. Swiney, 8 Ir. Law, 73; Allen v. Smith, 10 Mass, 308;
POSSESSION. 165

PowEr TO SELL as aGENT.—A mortgage containing
stipulation that the mortgagor shall remain in posses-
sion and sell the mortgaged property as agent of the
mortgagee, and account for the proceeds until the mort-
gage debt is paid, is not necessarily void. If carried
out in good faith it does not delay, hinder or defraud
creditors. Such a stipulation is merely a badge of
fraud.*

PERISHABLE ARTICLES.—Articles in their nature sub-
ject to be consumed in their use may be mortgaged
without any imputation of fraud, provided they are not
to be used and may be kept without damage until the
mortgage debt shall become payable.’ If the articles,
however, are perishable, and cannot be so kept, or if
there is an understanding that they may be used and
consumed by the mortgagor, the mortgage is fraudulent
and void? Such perishable articles may, however, be

 

Archer v. Hubbell, 4 Wend. 514; Hankins v. Ingolls, 4 Blackf. 35; Saun-
ders vy. T'urbeville, 2 Humph. 272.

* Hawkins y. Nat’l Bank, 1 Dillon, 462; s. o. 2 B. R. 108; Miller v.
Lockwood, 32 N. Y. 293; Ford v. Williams, 13 N. Y. 577; 8. c. 24.N. Y.
359; Abbott v. Goodwin, 20 Me. 408; Melody v. Chandler, 12 Me. 282 ;
Constantine v. Twelves, 29 Ala. 607; Chophard vy. Bayard, 4 Minn. 533;
Weaver v. Joule, 91 E. C. L.309; 8. c.30.B, (N. 8.) 309; Allen v. Smith,
10 Mass, 308; Barker vy. Hall, 13 N. H. 293; Conkling v. Shelley, 28 N. Y.
360; Hickman v. Perrin, 6 Cold. 135; Pope v. Wilson, 7 Ala. 690; Brinley
y. Spring, 7 Me. 241; Spence v. Bagwell, 6 Gratt 444; Davis v. Ransom, 18
Til. 396 ; Johnson vy. Curtis, 42 Barb, 588; Summers v. Roos, 43 Miss. 749;
Adler y. Claflin, 17 Iowa, 89; Wiswall v. Ticknor, 6 Ala. 178; cide Saunders
vy. Turbeville, 2 Humph. 272; Trabue v. Willis, Meigs, 583, note; Bamford
vy. Baron, 2 T. R. 594, note.

° Robbins v. Parker, 3 Met. 117; Dewey v. Littlejohn, 2 Ired. Eq. 495;
Charlton y. Lay, 5 Humph. 496; Cochran v. Paris, 11 Gratt. 348.

® Sommerville vy. Horton, 4 Yerg. 541; Trahue v. Willis, Meigs, 583,
note; Wiley v. Knight, 27 Ala. 336; Farmers’ Bank v. Douglass, 11 8. &
M. 469; Johnson vy. Thweatt, 18 Ala. 741; Ravisies y. Alston, 5 Ala. 297;
vide Elmes vy. Sutherland, 7 Ala. 262.
166 POSSESSION.

consumed when it is for the benefit of the mortgagee
than a favor rather to the debtor, as, for instance, in the
improvement, support or sustenance, of other property
enumerated in the mortgage." The amount in number
and value of such articles may be so inconsiderable as
compared with the main subjects of the mortgage as to
justify the conclusion that they were embraced through
the inattention of the parties, and will not then vitiate
the transaction.? The rule in regard to perishable objects
is limited to chattels that are transient in their existence,
or of such a nature that their only use consists in their
consumption.’

WHAT TRANSFERS VALID.—It has been held that the
doctrine in regard to the retention of possession, accom-
panied with a power to sell for the debtor’s benefit, ap-
plies only to conditional, and not to absolute sales,* but
this is questionable, for such a transfer is merely color-
able.” If the goods are delivered to the mortgagor
before any creditor questions the validity of the mort-
gage, the transaction will be rendered valid.°

 

* Cochran v. Paris, 11 Gratt. 348; Dewey v. Littlejohn, 2 Ired. Eq. 495;
Ravisies v. Alston, 5 Ala. 297; Planters’ Bank v. Clarke, 7 Ala. 765.

? Cochran y. Paris, 11 Gratt. 348; Dewey v. Littlejohn, 2 Ired. Eq. 495.

* Shurtleff vy. Wiliard, 19 Pick. 202.

* Grubbs v. Greer, 5 Cold. 160.

° Paget v. Perchard, 1 Esp. 205.

° Brown v. Platt, 8 Bosw. 324; Read v. Wilson, 22 Ill. 377; Summers
v. Roos, 43 Miss. 49; Williston v. Jones, 6 Duer, 504,

The doctrine in the text is laid down according to the principles of
the common law, but these of course are liable to modification by the
statutes of the various States. It is no part of the scope of this work to
discuss these various acts, for it is to be presumed that every attorney is
more familiar with the statutes of his own State, and the decisions under
them, than a stranger. The work, however, would not be complete with-
out a slight notice of them, and of the manner in which they affect the
doctrine relating to the retention of possession. These acts commonly
relate to bills of sale and mortgages of personal property, and are designed
to prevent the mischiefs that may arise from secret sales, and hence require
POSSESSION. 167

that such transfers shall be recorded in all cases where the grantor retains
the possession. Such acts are in force in England, Maine, Connecticut,
New York, Maryland, Virginia, West Virginia, North Carolina, Georgia,
Indiana, Kentucky, Missouri, Michigan, Wisconsin, Minnesota, Iowa,
Oregon and Ohio. The statutes of each State vary, but in general the
recording of the transfer is equivalent to a change of possession. Bruce v.
Smith, 3H. & J. 499; Hambleton v. Hayward, 4 H. & J. 443 ; Bogard v,
Gardley, 4 8. & M. 302; Harrington v. Brittain, 23 Wis. 541; Fister v.
Beall, 1 H. G J. 31; Smith v. McLean, 24 Iowa, 322; Hughes v. Cory, 20
Towa, 899; Kuhn v. Graves, 9 Iowa, 303. When there is a change of
possession (Minister vy. Price, 1 F. & F. 686; Gough v. Everard, 2 H. & C.
1; 8. c. 82; L. J. Ex. 210; s.c. 8 L. T. (N.S.) 363; Smith v. Wall, 18 L. T.
(N.S.) 182); or when the property at the time of the transfer is not in the
possession of the grantor (Thomas v. Hillhouse, 17 Iowa, 68) the instru-
ment by which the transfer is made need not be recorded. But if the
grantor retains the possession, and the instrument is not recorded within
the time required by the registration acts, the transfer is void. Miller v.
Bryan, 3 Iowa, 58; Prather v. Barker, 24 Iowa, 26. Mere recording, how-
ever, will not give validity to an instrument that is tainted with actual
fraud, Garrett v. Hughlett, 1 H. & J. 3.
CHAPTER VI.
WHEN POSSESSION IS FRAUD PER SE.

The retention of possession has thus far been con-
sidered as simply affording a presumption of fraud, but
as it is held to be conclusive in several States, a survey
of this branch of the law is necessary to complete the
examination of this subject.

NaturRE OF THE RULE THAT POSSESSION IS FRAUD
PER sE—The rule that the retention of possession is
conclusive evidence of fraud is one of policy,’ and rests
upon the doctrine that fraud is in all cases a question
of law Although a valuable consideration may
be paid, and the real intent of the parties may be
to transfer the property, yet the possession continu-
ing with the vendor is regarded as giving him a
collusive credit, and as operating as a deceit and fraud
upon creditors. The conveyance, therefore, is held void
as to creditors, though there may be no fraud, in fact,
in the transaction. The rule excludes all regard to the
actual intentions of the parties in every transaction
that comes within its range* The inference arising
from the possession cannot be rebutted or repelled even
by the strongest testimony of the actual fairness of the

 

1 Wilson v. Hooper, 12 Vt. 658; Mills v. Camp, 14 Ct. 219; Kirtland
y. Snow, 20 Ct. 23.

7 Weeks v. Wead, 2 Aik. 64; Milne v. Henry, 40 Penn. 352; Sturt-
evant v. Ballard, 9 Johns. 337; Planters’ Bank y. Borland, 5 Ala. 531.

5 Weeks v. Wead, 2 Aik. 64; Milne v. Henry, 40 Penn. 352.

“ Wilson v. Hooper, 12 Vt. 653.
WHEN POSSESSION 18 FRAUD. 169

intention of the parties.’ Hence, it is immaterial
whether the vendee was party or privy to any fraud-
ulent intention of the vendor or not.’

CHARACTER OF DELIVERY.—The vendor must deliver
to the vendee possession of the property in order
to consummate the sale and render it valid as
against creditors. The delivery must be actual, and
such as the nature of the property and the circum.
stances of the sale will reasonably admit, and such as
the vendor is capable of making. A mere symbolical
or constructive delivery, where a real one is reasonably
practicable, is of no avail; there must be an an actual
separation of the property from the possession of the
vendor at the time of the sale, or within a reasonable
time afterwards, according to the nature of the
property.? Symbolical delivery is necessary only
where peculiar circumstances preclude the possibility
of actual possession, and there it is equivalent to actual
possession, because the transaction is susceptible of no
act of greater notoriety. But where possession may be
permanently changed by actual delivery of the thing,
symbolical delivery is of itself a fraud, because it
appears on the face of the transaction that the deliv-
ery was merely colorable.* Actual possession is used
in contradistinction to constructive possession, which is
incident of, and dependent on, right and title.® The
possession of every vendor, after a sale, is construct-
ively the possession of the vendee; the possession of

 

1 Land vy. Jeffries, 8 Rand. 211; s. c. 599; Hundley v. Webb 3 J. J.
Marsh, 643,

2 King v. Bailey, 6 Mo. 575.

® Billingsley v. White, 59 Penn. 464.

4 Cunningham vy. Neville. 10 S. & R. 201; Brawn y. Keller, 43
Penn. 104.

® Woods v. Bugbey, 29 Cal. 466.
170 WHEN POSSESSION IS FRAUD.

an agent is constructively the possession of the prin-
cipal. Such a change, however, is not sufficient. The
vendee cannot make the vendor his agent and then
rely upon his constructive possession.’

CHANGE MUST BE conTINUOUs.—The word actual
also excludes the idea of a mere formal change of
the possession? It is not sufficient that the vendor
gives to the vendee a delivery, which may be symbol-
ical or a temporary delivery, and then takes the articles
back into his own possession and keeps and uses them
just the same as he did before. This is not the posses-
sion which the rule requires. There must be not only
a delivery, but a continuing possession.’ The posses-
sion and beneficial use of the property by the vendor,
after the sale, is conclusive evidence against it. It is
the policy and very foundation of the rule to prevent
what it is the object of fraudulent conveyances to
secure—the beneficial use of the property to the
debtor The delivery must be made of the property ;
the vendee must take the actual possession; the pos-
session must be open and unequivocal, carrying with it
the usual marks and indications of ownership by the
vendee. It must be accompanied with such unmistak-
able acts of control and ownership as a prudent bona
Jide purchaser would do in the exercise of his rights
over the property so that all persons may have notice

 

? Stoddard vy. Butler, 20 Wend. 507; Trask v. Bowers, 4 N. H. 309;
Stephens v. Barnett, 7 Dana, 257; Fitzgerald v. Gorham, 4 Cal. 289;
Stewart v. Scannell, 8 Cal. 80; Stanford v. Scannell, 10 Cal, 7.

* Stevens v. Irwin, 15 Cal. 503.

5 Young v. McClure, 2 W. & 8. 147; Streeper v. Eckart, 2 Whart. 302;
Goldsbury v. May, 1 Litt. 254; Breckenridge vy. Anderson, 3 J. J. Marsh,
714; McBride, v. McClelland, 6 W. & S. 94.

“ Pierce v, Chipman, 23 Vt. 87.
WHEN POSSESSION IS FRAUD. 171

that he owns and has possession of the property. It
must be such as to give evidence to the world of the
claims of the new owner. This possession must be
continuous—not taken to be surrendered back again—
not formal, but substantial? It is not necessary that a
change of possession should at all times accompany the
transfer. If it follows within a reasonable time there-
after, that is, as soon as the nature of the property and
the circumstances attending the transfer will admit, it
is sufficient? A delay of four or six days is not
material, if the property has not in the meantime
been seized on legal process.

QuESTION oF LAW.—The rule does not determine
what acts shall constitute a delivery and continued
change of possession.” Change of possession is mainly
a fact-like possession or seizin, but of course the facts
being conceded, or found, all these matters then resolve
themselves into a mere judgment of law.’ The ques-
tion of change of possession is purely one of law, and
as such is to be decided by the court. The court must

 

* Lay v. Neville, 25 Cal. 543.

? Stevens v. Irwin, 15 Cal. 508; Engles v. Marshall, 19 Cal. 320. Mere
accidental words grow sometimes into undue importance. A learned
judge of the Common Pleas happened, improperly, but without prejudice
to any one, to apply the terms which qualify a possession under the statute
of limitations to a case of this sort, ard declared that the possession must
be “actual, visible, notorious,” and the reporter put this into his syllabus,
though this court used only the word actual. Next comes another expres-
sion derived from the same source—“ clear, unequivocal and conclusive.”
The expressions “visible and open,” and “open and manifest,” would seem
to be more accurate. Hugus v. Robinson, 24 Penn. 9.

° Carpenter v. Mayer, 5 Watts, 483; Smith v. Stern, 17 Penn. 360;
State v. King, 44 Mo. 238; McVicker v. May, 3 Penn. 224; Barr v. Reitz,
53 Penn. 256.

4 McVicker y. May, 3 Penn. 224; Barr y. Reitz, 53 Penn. 256.

® Godchaux v. Mulford, 26 Cal. 314.

® Burrows v. Stebbins, 26 Vt. 659.
172 WHEN POSSESSION IS FRAUD.

judge of those acts which are sufficient evidence of
delivery! Possession being a fraud in law, without
regard to the intent of the parties, becomes a question
for the court and not for the jury to decide? When
there is no proof to show that possession accompanied
and followed the transfer, the court instructs the jury
that the sale is fraudulent.2 When, however, there is
any evidence tending to prove a change of possession,
the question must be submitted to the jury.“ The
evidence must be such as would justify the jury in
inferring, under instructions from the court, that there
has been an actual and exclusive change of posses-
sion.» When there is a conflict of testimony in re-
gard to the change of possession, the question must
necessarily be referred to the jury. Should the
court in such a case attempt to assert authoritatively
the presence of a legal fraud, it would be a usurp-
ation of the rights of the jury.° The question is to
be submitted to the jury to find the facts, and the court
is to say what facts, if found by the jury, will constitute

sufficient change of possession.’ The rule is no
reason for excluding the evidence of the transfer. It is

 

* Cadbury v. Nolen, 5 Penn. 320; Burrows v. Stebbins, Vt. 659; Con-
tra Lake y. Morris, 30 Ct. 201.

* Young v. McClure, 2 W. & 8.147; Carpenter v. Mayer, 5 Watts, 483;
Milne v Henry, 40 Penn. 352.

* Young v. McClure, 2 W. & 8., 147; Dewart v. Clement, 48 Penn. 413.
Tn Connecticut, the question is submitted to the jury as a question of fact,
with instruction that if they find none of the established exceptions, they
will find the transaction fraudulent. Swift v. Thompson, 9 Conn. 63;
Howe v. Keeler, 27 Conn. 538.

* Warner v. Carlton, 22 Ill. 415; Stephenson v. Clark, 20 Vt. 624.

° McKibbin v. Martin, 64 Penn. 352.

° Forsyth v. Matthews, 14 Penn. 100; Wilson v. Hooper, 12 Vt. 653 ;
Hodgkins y. Hook, 23 Cal. 581.

* Burrows v. Stebbins, 26 Vt. 759; Stephenson v. Clark, 20 Vt. 624.
WHEN POSSESSION IS FRAUD. 173

the judgment of the law upon the evidence, and not
a ground to exclude evidence.!

JOINT PossEssIoN.—Possession is the visible control
of, and dominion over the goods? If the vendee has
such a possession it is sufficient. A concurrent pos-
session of the vendor with the vendee,’ or with an agent
of the vendee,* is not such a substantial change as the
rule requires. Such a possession is merely colorable.
The reason why possession must be changed is to an-
nounce a change of ownership, and prevent the former
owner from gaining a credit by his possession. Con-
sequently the possession and use of the vendor to be
within the rule, must be of the same description as that
of a joint-owner in using, occupying, and disposing of
the property. Nothing short of this would furnish any
evidence that he yet remained the owner.> What given
state of facts constitutes a concurrent possession is a
question of law.’ If the possession does not amount to
a joint-possession the transfer is valid. Thus, if a lease
of the goods to a third party is real and bona fide and
not colorable, and he actually takes possession, then his
possession in connection with that of the vendor will
not be fraudulent.’ It is important, therefore, to as-
certain what facts are essential to prevent the possession
from being joint.

 

* Sherron vy. Humphreys, 2 Green, 217.

* Ludlow v. Hurd, 19 Johns. 218.

* Wordall v. Smith, 1 Campb. 332; Babb v. Clemson, 10 8. & R. 419;
Boyd v. Duniap, 1 Johns, Ch. 478; Stiles v. Shumway, 16 Vt. 485; Waller
v. Cralle, 8 B. Mon. 11.

* Neate v. Latimer, 2 Y. & C. 257; Wordall v. Smith, 1 Campb.
332; Babb v. Clemson, 10 8. & R. 419.

* Allen v. Edgerton, 3 Vt. 442; Hall v. Parsons, 15 Vt. 358; 8. c. 17
Vt. 271; Wilson v. Scott, 5 Fla, 305.

® Hall v. Parsons, 15 Vt. 358; 8. c. 17 Vt. 276.

7 Archer y. Hubbell, 4 Wend. 514.
174 WHEN POSSESSION IS FRAUD.

CHARACTER OF THE CHANGE.—Separation of the
property from the possession of the vendor implies noth-
ing more than a change of the vendor's relation to it
ag owner, and consists in the surrender and transfer of
his power and control over it to the vendee, but in
order to prevent fraud, the rule requires that this shall
be done by such appropriate significant acts as shall
clearly show the vendor’s intention to part with the
possession of the property, and transfer it to the ven-
dee.’ There must be acomplete change of the dominion
and control over the property, and some act which will
operate as a divestiture of title and possession from the
vendor, and a transfer to the vendee. There must be
some open, notorious or visible act clearly and unequiv-
ocally indicative of delivery and possession, such as
putting up a new sign, or any other reasonable means
which would impart notice to a prudent man that a
change has taken place.” The act must be so open and
manifest as to make the change of possession apparent
and visible.’

Must BE OBSERVABLE—The change of possession
must be such as is observable without inquiry. On the
one hand, the purchaser must see to it that he so conducts
with the property as to indicate by the appearances to an
observer a change in the possession; and, on the other
hand, the creditors of the vendor are bound to see what
others can see and judge and act upon it with the pru-
dence that is required of men in business affairs. The
change of possession must be obvious or observable, or,
as sometimes expressed, visible, or such that the appear-
ances would indicate to an observer that there had been

 

* Billingsley v. White, 59 Penn. 464; State v. Schulein, 45 Mo. 521.
* Claflin v. Rosenberg, 42 Mo. 439.
* Billingsley vy, White, 59 Penn. 464.
WHEN POSSESSION IS FRAUD. 175.

a change.’ The appearances must indicate such a divest-
ing of the possession of the vendor as any man know-
ing the facts which are ascertainable, would be bound
to know and understand as the result of change of
ownership. They must be such as he could not reason-
ably misapprehend.? When such a change is apparent
creditors are put on the inquiry. The rule does not
say that it is the duty of creditors to inquire or to pre-
sume a change when it is reasonably doubtful, but that
the possession in such a case is joint and the sale void.
This is in entire consistency with the settled rule that
there must be a substantial and visible change of pos-
session. If there is such a change, a careful observer
will not be at a loss to determine who owns and has
possession of the property. If it is doubtful, the law
resolves the doubt against the party who should make
the change of possession open and visible to the world.
Creditors are not bound to inquire. It is sufficient if
they carefully observe.’

ConcuRRENT PossEssion.—If there are such palpable
tokens and proofs of the vendor’s surrender of his do-
minion over the property as owner, and of the transfer of
his possession to the vendee, the sale will not be de-
clared fraudulent in law, although the vendor may act
as the agent or servant of the vendee in the manage-
ment and disposal of the property, provided that his
acts are professedly and apparently done, not as owner,
but as the agent or servant of the vendee, and are so un-
derstood by those with whom he deals. Such employment
of the vendor in a subordinate capacity is colorable
only, and not conclusive upon the question as to

 

1 Stanley v. Robbins, 86 Vt. 422.
? Stephenson vy. Clark, 20 Vt. 624; Parker v. Kendricks, 29 Vt. 888.
’ Flanagan vy. Wood, 33 Vt, 382.
176 WHEN POSSESSION IS FRAUD.

whether there has been any immediate delivery and an
actual change of the possession. He can not be allowed
to remain with apparently sole and exclusive possession
of the goods after the sale, for that would be incon-
sistent with such an open and notorious delivery and
actual change as the rule exacts, in order to exclude
from the transaction the idea of fraud. But if it is ap-
parent to all the world that he has ceased to be the
owner, and another has acquired and openly occupied
that position; that he has ceased to be the principal in
the charge and management of the property, and become
only a subordinate or clerk, the reason of the rule is
satisfied.

The immediate delivery and actual and continued
change of possession are the ultimate facts, the employ-
ment of the vendor by the vendee in a subordinate
capacity is only a probative fact.’ If the change of
possession is otherwise sufficiently shown, the mere fact
of such agency is not, and never has been held to render
the sale invalid The omission to change the sign on
a store is not conclusive. Nor is a mere change of the
sign sufficient It is not necessary that the vendor
shall be at all times in the store.” The same clerks may

 

1 Godchaux vy. Mulford, 26 Cal. 314.

2 Billingsley v. White, 59 Penn. 464; State v. Schulein, 45 Mo. 521;
Claflin v. Rosenberg, 42 Mo. 489; McKibbin v. Martin, 64 Penn. 352;
Hugus v. Robinson, 24 Penn. 9; Dunlap vy. Bournonville, 26 Penn. 72;
England v. Ins. Co. 6 La. An. 5; Weil v. Paul, 22 Cal. 492; Godchaux v.
Mulford, 26 Cal. 316; Warner vy. Carlton, 22 Ill. 415; Powers v. Green,
14 Tl. 386; Stevens v. Irwin, 15 Cal. 503; Hall v. Parsons, 15 Vt.
358; 8. c. 17 Vt. 271; Wilson v. Lott, 5 Fla. 305; Talcott v. Wilcox,
9 Conn. 134.

® Seavy v. Dearborn, 19 N. H. 351; Hugus v. Robinson, 24 Penn. 9;
Read vy. Wilson, 22 Ill. 377.

* Potter v. Payne, 21 Conn. 361.

®° Billingsley v. White, 59 Penn. 464.
WHEN POSSESSION IS FRAUD. 177

be employed, and it is immaterial where they board)!
but they can not be employed and paid by the vendor,
although he does it at the request of the vendee,? for
the possession is then in the vendor and not the vendee.
The rule requires that all such agency and control of
the vendor shall be excluded. If the transfer is kept
secret, the employment of the vendor as agent will
vitiate it. The important inquiry is, who is at the
head controlling the property? If a careful observer
would be at a loss to know which of the two were at
the head, having the chief control of the property, it
must be deemed a joint possession.‘

‘WHEN CONCURRENT IS FRAUDULENT.—In such cases of
concurrent possession it is a question for the jury whether
the change of possession has been actual and bona fide,
not pretended, deceptive, and collusive. If there are facts
tending to show that the grantor has a beneficial interest
in the business, or that the proceeds go to him beyond
a reasonable compensation for his services, or that he has
an unlimited power to draw upon the till, or that with
the knowledge of the vendee he takes money to pay his
own debts, these are facts for the jury.” The vendor
may, however, become a member of the firm which pur-
chases the property,’ or act as agent for the owner of
an undivided half of the property.*. The vendee can

 

» Hall v. Parsons, 15 Vt. 858; s.c. 17 Vt. 271.

2 Parker v. Kendricks, 29 Vt. 388.

° Trask v. Bowers, 4 N. H. 309; Allen v. Edgerton, 3 Vt. 442; Eck-
feldt v. Frick, 17 Leg. Int. 332.

4 Allen y. Edgerton, 3 Vt. 442; Hall vy. Parsons, 15 Vt. 358; 8. c.
17 Vt. 271.

* McKibbin v. Martin, 64 Penn. 352.

* Utley v. Smith, 24 Conn. 290.

” Pier v. Duff, 63 Penn. 59.

12
178 WHEN POSSESSION IS FRAUD.

not employ the former agent of the vendor, and then
hire the property to the vendee,' but the vendor may
be employed to use the property in the business of the
vendee.? If A., being in possession of goods, sells them
to B., and B. sells them to C., it is not fraudulent for
C., after he has completely received the possession, to
employ A. and allow him to have possession of the
goods.’

PossEssIoN oF LAND.— When the vendee relies upon
a constructive possession of land to make out his pos-
session of the property which remains upon the land,
he must have such a deed as will vest in him a legal
seizin, and it may be essential that the deed shall be
recorded. The deed, however, simply conveys the
legal right of possession, but does not necessarily
change the possession from the grantor to the grantee.
Where the land sold remains in the actual possession of
the vendor, there no constructive possession of the
property on it can be raised, for the aid of the vendee,
against such actual possession, for this would make the
constructive possession more potential than the actual
and apparent one.” Consequently, a mere surrender of
a lease, which the vendor holds as tenant, to the vendee
is not sufficient.’ Where the vendor and vendee remain
in the joint possession of the land, if the possession of

 

‘ Hurlburd v. Bogardus, 10 Cal. 518.

° Brown v. Riley, 22 Ill. 45.

5 Cameron v. Montgomery, 13 8. & R. 128.

* Stephenson y. Clark, 20 Vt. 624.

* Flanagan vy. Wood, 33 Vt. 332; Rockwood v. Collamer, 14 Vt. 141;
Lawrence vy. Burnham, 4 Nev. 361; Cahoon v. Marshall, 25 Cal. 197.

® Steelwagon vy. Jeffries, 44 Penn. 407; Kirtland y. Snow, 20 Conn. 23;
Stiles vy. Shumway, 16 Vt. 435.
WHEN POSSESSION IS FRAUD. 179

the vendee is apparently that of a joint owner, and
there is no actual and exclusive possession of the per-
sonal property by the vendee, the personal property on
the land will be deemed to be in their joint possession.
But where the vendee has a visible and notorious pos-
session, a surrender of a lease will enable him to obtain
a valid title, although the vendor remains on the land?
Taking a lease is some evidence of a change of posses-
sion,® but not sufficient. Upon a sale of wheat in the
ground, the vendee may, however, lease the farm and
employ the vendor as his agent.? Possession need not
be taken of a windmill attached to the land, when both
the land and the windmill are conveyed by a mort-
gage.® The constructive possession of the land is suffi-
cient possession of the mill. A principal may make a
purchase from an agent who manages his farm, if the
transaction is open, and not calculated to give the
vendor a false credit, and leave the goods upon the
farm under the management of the vendor," but secrecy
will vitiate such a transaction.2 When an agent sells
goods to his principal which are already upon the prin-
cipal’s land, there need be no other change of posses-
sion, for the law will refer the possession to the prin-
cipal in whom the property now is, and in whom the
possession apparently was before. Where the vendee

 

? Flanagan v. Wood, 33 Vt. 382.

2 Talcott v. Wilcox, 9 Conn. 134.

5 Conway v. Edwards, 6 Nev. 190.

* Flanagan v. Woods, 33 Vt. 332.

* Herron v. Fry, 2 Penn. 263.

® Sceward v. Lombe, 1 Brod & B. 506.

" Lewis v. Whittemore, 5 N. H. 364; Wright v. Grover, 27 Ill. 426;
Visher v. Webster, 13 Cal. 58.

®* Trask v. Bowers, 4 N. H. 309; Stephens vy. Barnett, 7 Dana,
257,

* Manton vy. Moore, 7 T. R. 67.
180 WHEN POSSESSION IS FRAUD.

owns a farm, and goes to live with the vendor upon it,
and the vendor works it upon shares, and has the sole
conduct of the business, the change is not sufficient ;*
but the vendee may purchase land, and the personal
property upon it, and employ the vendor as overseer,”
or as agent,’ if he assumes an exclusive control of the
property. So, also, if the vendor absconds, the fact
that the vendor's family remains in the house is imma
terial when the vendee exercises acts of dominion over
the personal property. If the vendee owns the house
in which the goods are, and has the control and man-
agement of the household, without any intermeddling
on the part of the vendor, the fact that the vendor
lives with the vendee will not make the transfer void.’
A steam-engine may be left on the premises, in the
charge of an agent, and used by the vendee.® A man
may have the exclusive possession of personal property
which is upon land occupied by him and the vendor in
common.’ If the vendee owns the land,° or leases the
house’ where the property is placed, it is sufficient if
the vendor removes from it. Wherever the constructive
possession of land has been considered of any import-
ance, there have been both delivery and acts of dominion
over the property upon it.

 

* Mills v. Warner, 19 Vt. 609.

* Wilson v. Lott, 5 Fla. 305.

* Wilson v. Hooper, 12 Vt. 653.

4 Burrows v. Stebbins, 26 Vt. 659,

® Ludlow v. Hurd, 19 Johns. 218; Wilson v. Lott, 5 Fla. 305.

* Funk v. Staats, 24 Tl. 632.

” Potter v. Mather, 24 Conn. 551; vide Heffner v. Clark, 5 Whart. 545;
Brawn vy. Keller, 43 Penn, 104.

®* Pacheco v. Hunsacker, 14 Cal. 120; Sharon v. Shaw, 2 Nev,
289.

* Barr y. Reitz, 53 Penn. 256.
WHEN POSSESSION IS FRAUD. 181

‘WHERE THE RULE DOES NoT APPLY.—The rule does
not apply to sales of property which is exempt from
execution,’ or to sales of partnership property, as against
the creditors of one of the partners, because they can
not levy upon the partnership property. Upon the
purchase of the equity of redemption, only so much of
the right as was absolute can be deemed fraudulent,
and upon declaring it alone void, the mortgagee is re-
mitted to his pre-existent rights under his mortgage.®
When an exchange is made by the vendor, without the
concurrence of or consultation with the vendee, no dis-
tinction can be allowed between the article received
and the one for which it is substituted.“ If the prop-
erty is converted into money, and the money is actually
received by the vendee, this ends the question in regard
to the delivery. The vendee may then take the money
and purchase other property, and leave that with the
first vendor. There is then no connection between this
property and any other property which the vendor may
have had, and creditors are put at once upon inquiry as
to the origin of the title.” The rule does, however,
apply to the chattel’s offspring.’

PossEssION BY FEME COVERT.—The possession of the
wife is the possession of the husband,’ but there is no
case where the possession of the husband after marriage

 

? Anthony v. Wade, 1 Bush. 110; Morton vy. Ragan, 5 Bush. 334;
Foster v. McGregor, 11 Vt. 595; Patten v. Smith, 5 Conn. 196; 8c. 4
Conn. 450.

* Page v. Carpenter, 10 N. H. 77.

* Daniel v. Morrison, 6 Dana, 182; 8. c. 6 J. J. Marsh, 398. Contra,
Clayborn v. Hill, 1 Wash. (Va.) 177.

4 Mills v. Warner, 19 Vt. 609..

* Ridout v. Burton, 27 Vt. 383.

® Mott v. McNiel, 1 Ark. 162.

* King v. Bailey, 6 Mo. 575.
182 WHEN POSSESSION IS FRAUD.

of property conveyed by the wife before marriage has
been held inconsistent with the deed of the wife, where
that deed was absolute on its face, and without any
special stipulation, limitation, or reservation.’ The
possession to be conclusive evidence of fraud must
be ostensibly either actual or usufructuary, that
is, it must be a possession in fact by the debtor or
inden him, or apparently to his use, such a possession
as would be a badge of property, and might therefore
give a delusive credit. Although, after a separation,
a mensa, the possession by the wife de jure of her own
property or that of her husband may be his possession
for many legal purposes, nevertheless, her actual or
beneficial possession of the property of a benevolent
stranger or friend is not, either in fact or in law, the pos-
session of her husband in any sense or for any purpose.
The constructive possession follows the title, and the
law presumes the possession to be in the owner, and not
in the absent husband, whose only right even to the
use is founded on the technical fiction of the identity
in law of husband and wife, or on the mere legal
power, still conceded to him by the common law, over
his wife and over the use of property in her pos-
session.” When there is no proof that property in the
possession of the husband is an acquisition from the
wife’s own money or property, it belongs to the husband.

SUFFICIENCY OF CHANGE VARIES WITH EACH CASE—
What constitutes a sufficient change of possession must
be a question which will vary with circumstances, and
what may have been said by the courts on this subject

 

* Land v. Jeffries, 5 Rand. 599, 211; Prior v. Kinney, 6 Munf. 510.
* Chiles v. Bernard, 3 Dana, 95; Leonard v. Baker, 1 M.&S. 251.
* Milne v. Henry, 40 Penn. 352.
WHEN POSSESSION IS FRAUD. 183

should be taken with reference to the case then before
them, in relation to the character and situation of the
property at the time of the sale. When the goods are
in the possession of the vendee, there need be no formal
delivery of the possession? It makes no difference
whether the property is removed from the owner, or
tho owner from the property. It is not the mere place
the property occupies which gives color of possession
to the former owner, but it is the connection the place
itself has with the former owner indicating his apparent
control over it.? An immediate delivery, and an actual
and continued change of possession, are consistent with
the retention of the property on the same premises.
Removal is an evidence, and a strong one, of that
change, but not the indispensable evidence. The exer-
cise of ownership, and control by the vendee, and,
above all, the absence of any such control by the
vendor, are the true test by which to decide the valid-
ity of the transfer. The change must be notorious, and
the possession and control of the vendee indisputable.
The goods may be left on the premises, in the exclusive
charge of an agent. Even a removal is not sufficient,
whéh the vendor accompanies the goods.

Previous ownersHip.—It is no excuse that the
mortgagee sold the goods to the mortgagor, and took
a mortgage as a security for the purchase money.’

 

* Hutchins v. Gilchrist, 23 Vt. 82.

? Lake vy. Morris, 30 Conn. 201; Manton v. Moore, 7 T. R. 67.

‘Barr y. Reitz, 53 Penn. 256; Craver v. Miller, 65 Penn. 456; Pacheco
v. Hunsacker, 14 Cal. 120.

4 Hutchins vy. Gilchrist, 23 Vt.82; Cartwright v. Phenix, 7 Cal. 281 ;
Lee v. Huntoon, 1 Hoffm. 447; Funk v. Staats, 24 Ill. 632.

* Weil v. Paul, 22 Cal. 492.

“ Woodward vy. Gates, 9 Vt. 358. In Meggott v. Mills, 1 Ld. Raym.
184 WHEN POSSESSION IS FRAUD.

The period of the debtor’s previous ownership is not
permitted to qualify the rule; whether for a longer or
shorter time it induces the same legal consequences.
But the case of bailment to one who has never been
owner is not within the rule, although he may, prior
to the bailment, have made a contract to purchase,
upon his failure to comply with which the bailor
purchased."

Noricre.—If a creditor consents that the vendor shall
remain in possession, he can not claim that the sale is
fraudulent on this account alone, but mere notice is
not sufficient;* nor can a sheriff be prejudiced by
any knowledge of the judgment creditor.“ Knowledge
that there is a separate defeasance to an absolute deed
makes no difference, for what is void may be taken ad-
vantage of by all creditors.°

Nominat party.—lf the vendor is a mere trustee
or nominal party, holding the title for the use of an-
other, and sells absolutely the thing thus held, while it
is in the possession of the beneficiary, the sale will be
fraudulent, unless the possession is changed and con-
forms to the contract.’ Where a sale is made by a

 

286, money was loaned to purchase goods, and a bill of sale taken as se-
curity, and the transfer was held valid. The same doctrine is laid down
in Buller’s N, P. 258. But it is said not to be law in Clow v. Woods, 5 S.
& R. 275.

Spring v. Chipman, 6 Vt. 662.

? Steel v. Brown, 1 Taunt. 381.

* Hower y. Geesaman,178.&R. 251; Stark v. Ward, 3 Penn. 328; King
vy. Bailey, 6 Mo. 575; Lassiter v. Bussy, 14 La. An. 699 ; Lawrence vy. Burn-
ham, 4 Nev. 361; Swift v. Thompson, 9 Conn. 63. Contra, Wooderman v.
Baldoe, 8 Taunt. 676; Ludwig v. Fuller, 17 Me. 162.

“Meeker v. Wilson, 1 Gallis, 419; Hower v. Geesaman, 17 8. & R. 251.
Contra, Ludwig v. Fuller, 17 Me. 162.

® Gaither v. Mumford, 1 N.C. T. R. 167.

* Breckinridge v. Anderson, 3 J. J. Marsh, 710.
WHEN POSSESSION IS FRAUD. 185

person who has no title to the goods, with the assent
and for the benefit of the real owner, the same princi-
ples will be applied as if the beneficiary were the
nominal vendor. The rule would be of no avail if its
application could be evaded by the introduction of a
third person as nominal vendor, while the possession
remains with the beneficial owner.

By owner To pesror.—It has never yet been held
that a person may not give the possession of his goods
to another. Putting a man into possession of goods,
when they were not originally his, does not make them
a fund for the payment of his debts. The rule is
limited to transfers by debtors. It has no application
to transfer to debtors. There are certain necessary and
lawful contracts, by which the owner parts with the
possession, and yet fraud can not be presumed. Such
are the contracts of lending and hiring, both very use-
ful, and without which society could not well exist. It
is of the essence of these that the owner should give
up the possession for a time. Such, too, are contracts
by which an artizan or manufacturer has the possession
of materials belonging to another, for the purpose of
making them up or repairing them for the owner. No
suspicion of fraud can fairly arise where the transaction
is in the usual course of business.’

ConpITIonaL saALE—A stipulation that the title
shall not pass to the vendee is not fraudulent, whether

 

? Laughlin v. Ferguson, 6 Dana, 111.

° Dawson v. Wood, 3 Taunt. 256; Craig v. Ward, 9 Johns. 197 ; Howard
y. Sheldon, 11 Paige, 558; Clinn vy. Russell, 2 Blackf. 772.

3 Martin v. Mathiot, 14 8S. & R. 214; Ayer v. Bartlett, 6 Pick. 71;
Peters v. Smith, 42 Ill. 417.
186 WHEN POSSESSION IS FRAUD.

verbal! or in writing,’ and the vendee’s creditors can
not seize the property until the condition precedent is
performed? A third person may purchase the interests
of the vendor and conditional, vendee, and leave the
property in the possession of such conditional vendee.*
Goods may also be placed in the hands of an insolvent
debtor, to sell in his own name and account for the pro-
ceeds, with a condition that the title shall not vest in
him until they are paid for.’ In this mode creditors
are put to a great disadvantage, there being no title in
the debtor of which they can avail themselves at law,
even if the greater part of the consideration has been
paid. This renders such contracts objects of jealousy,
and they certainly ought to be critically scrutinized,
for they afford a most convenient screen for fraud be-
tween the parties to the bargain. But they are not
per se fraudulent. It is not sufficient merely for the
vendor to deliver the goods to the vendee, and permit
him to have them in such a manner as to induce others
to give him a false credit. If the vendor does this
with a fraudulent design to obtain credit for the
vendee, without doubt the creditors would hold the
property ; but if he does nothing more than endeavor
to keep the security in his own hands, he will not be
prejudiced, although creditors may have been deceived

 

1 Reeves v. Harris, 1 Bailey, 563; Baylor v. Smithers, 1 Litt. 105;
Hussey v. Thornton, 4 Mass. 405 ; Armington v. Houston, 38 Vt. 448; Bige-
low v. Huntley, 8 Vt. 151; Myersv. Harvey, 2 Penn. 478. Contra, Ketchum
y. Watson, 24 Ill. 592; Martin v. Mathiot, 148. &R. 214.

* Dupree v. Harrington, Harp. 391; Ayer v. Bartlett, 6 Pick. 71;
Bradley v. Arnold, 16 Vt. 882; Paris vy. Vail, 18 Vt. 277.

® Barrett v. Pritchard, 2 Pick. 512; Marston v. Baldwin, 17 Mass. 606;
Bigelow v. Huntley, 8 Vt. 151; Buckmaster vy. Smith, 22 Vt. 208.

‘ Smith v. Foster, 18 Vt. 182.

® Merrill v. Rinker, 1 Bald. 528; Blood vy. Palmer, 11 Me. 414; Chaffee
y. Sherman, 26 Vt. 287.
WHEN POSSESSION IS FRAUD. 187

by the circumstances. The true question is, whether
the transaction is bona fide or fraudulent. If the trans-
action is fraudulent, the vendor setting up a condition
to the sale, yet suffering the vendee to be in possession
but exercising full rights over the property, with the in-
tent and purpose of enabling him to obtain credit on the
strength of the property, he will not be able to avail
himself of such condition, but the sale will be held to
be absolute in regard to the creditors. But if bona fide,
and the object of the condition is merely security to
the vendor, he will not lose his property merely because
some creditor of the vendee supposed it belonged to
the vendee.*

QUESTION oF Law.—There are some instances
in which no change of possession is necessary, but
they are special cases, and for special reasons to
be shown to and approved of by the court.? De-
livery of possession is deemed to be so much of the
essence of the sale of chattels, that an agreement to
permit the vendor to keep possession is an extraor-
dinary exception to the usual course of dealing, and
requires a satisfactory explanation. There must be

 

> Ayer v. Bartlett, 6 Pick. 71; Merrill v. Rinker, 1 Bald. 528.

? Sturtevant v. Ballard, 9 Johns. 387; Clow v. Woods, 58. & Ry 275 ;
Williams vy. Lowndes, 1 Hall, 579; Divver v. McLaughlin, 2 Wend. 596;
Doane v. Eddy, 16 Wend. 528; Collins v. Brush, 9 Wend. 198; Randail
v. Cook, 17 Wend, 58; Coburn vy. Pickering, 3 N. H. 415 ; Wooderman v.
Baldock, 8 Taunt. 676; Patten v. Smith, 5 Conn. 196 ; s. c. 4 Conn. 450 ;
Beekman v. Bond, 19 Wend. 444; Randall v. Parker, 3 Sandf. 69; Swift
y. Thompson, 9 Conn. 63; Osborne yv. Fuller, 14 Conn. 529; Carter v.
Watkins, 14 Conn. 240; Stevens vy. Fisher, 19 Wend. 181; Hundley
v. Webb, 3 J. J. Marsh, 643; Gibson v. Love, 4 Fla. 217; Mauldin v-
Mitchell, 14 Ala 814; Millard v. Hall, 24 Ala. 209. The practice in Con-
necticut differs slightly from that of the other States. Swift v. Thomp-
son, 9 Conn, 68,
188 WHEN POSSESSION IS FRAUD.

some sufficient motive, of which the court is to judge,
for the non-delivery of the goods, or the rule presumes
it to be made with a view to delay, hinder or defraud
creditors It is necessary that the retention of the
possession shall appear to be for a purpose fair, honest
and absolutely necessary, or at least essentially con-
ducive to some fair object the parties have in view, and
which constitutes the motive for entering into the con-
tract. It is necessary not only that appearances shall
agree with the real state of things, but also that the
real state of things shall be honest and consistent with
public policy, and that it shall afford no unnecessary
facility to deception.?

WHEN VENDOR AND VENDEE RESIDE TOGETHER.—The
fact that the vendor and vendee reside together,’ or
board together in the same house,‘ or live together in
the house upon the lot where the stable is which they
use in common,’ does not take the case out of the opera-
tion ofthe rule. Even occasional acts of ownership will
not constitute a legal possession in the vendee if the goods
are in the same situation as before.® There is a distine-
tion, however, to be made between cases where the
donor and donee live apart, and those where they
necessarily live together. In the case of a father and
child who, from their connexion, must live together at
least until the child comes of age, it would have the
effect of destroying all gifts to say that the possession

 

Sturtevant v. Ballard, 9 Johns. 337.

* Clow v. Woods, 5 8. & R. 275.

* Jarvis v. Davis, 14 B. Mon. 529; Waller v. OCralle, 8 B. Mon. 11;
Steelwagon v. Jeffries, 44 Penn. 407; Stiles v. Shumway, 16 Vt. 435.

* Hoffner v. Clark, 5 Whart. 545.

° Brawn v. Keller, 43 Penn. 104.

° Mott v. McNiel, 1 Aik. 162 ; Stiles v. Shumway, 16 Vt. 435,
WHEN POSSESSION IS FRAUD. 189:

must be considered that of the father.’ <A sister-in-law
is not within this exception.’ If a son’s possession and
use of the goods are exclusive, a sale will be valid
although his father may live with him. If mere co-
habitation were a badge of fraud, a father’s sale to his
unmarried son would seldom be sustained.®

MerrE conventence.— Where possession has been
withheld pursuant to the terms of an agreement, some.
good reason for the arrangement beyond the mere con-
venience of the parties must appear. Goods cannot
be retained for the purpose of being manufactured,’ or
to complete a process of manufacture in progress at the
time of the sale,’ or under a covenant to keep and
deliver at a future day,’ or upon a conditional sale’ or
from motives of benevolence on the part of the
vendee.? An agreement on the part of the vendor
to pay for the use of the goods will not repel the
imputation of fraud.”

 

> Curry v. Ellerbe, 1 Bailey, 578; Kid v. Mitchell, 1 N. & M. 334;
Jacks vy. Tunno, 3 Dessau, 1 ; Smith v. Littlejohn, 2 McCord, 362; Howard
v. Williams, 1 Bailey, 575; Braxton v. Gaines,4 H. & M. 151; Wash v.
Medley, 1 Dana, 269; Enders v. Williams, 1 Met. (Ky.) 346; Dodd v.
McCraw, 3 Eng. 83; Humphries v. McCraw, 9 Ark, 91; Danley v. Rector,
5 Eng. 211; Clayton v. Brown, 17 Geo. 217; Goodwyn v. Goodwyn, 20
Geo. 600. Contra, Stiles v. Shumway, 16 Vt. 4385.

? Smith y. Henry, 2 Bailey, 118.

’ McVicker v. May, 3 Penn. 224; Braxton y. Gaines, 4 H. & M. 151.

* Clow v. Woods, 58. & R. 275; Jennings v. Carter, 2 Wend. 446;
Crouch v. Carrier, 16 Ct. 505; Gardner v. Adams, 12 Wend. 297; Doane y.
Eddy, 16 Wend. 523; Randall vy. Cook, 17 Wend. 53.

® Carter v. Watkins, 14 Conn. 240; Pritchett v. Jones, 4 Rawle, 260.
Contra, Clow v. Woods, 5 8. & R. 275.

® Pritchett v. Jones, Rawle, 260.

7 Brummel y, Stockton, 3 Dana. 134; Hundley v. Webb, 3 J.J. Marsh,
643; Grimes v. Davis, 1 Litt. 241; Millard y. Hall, 24 Ala. 209.

® Laughlin y. Ferguson, 6 Dana. 111.

® Mauldin v. Mitchell, 14 Ala, 814.

” Coburn v. Pickering, 3 N. H. 415; Streeper v. Eckart, 2 Whart, 302;
190 WHEN POSSESSION IS FRAUD.

ConsISTENT WITH TITLE, NOT TERMS OF DEED.—The
possession must be compatible with the title and
not the terms of the instrument by which the
transfer is made. Unless the contract of sale is
conditional, or in trust, the possession should corres-
pond with the title; and if the sale is unconditional
and pass the absolute right of property from the ven-
dor to the vendee, no reservation of the possession
to the vendor in the written evidence of the sale
will exempt the transaction from the imputation of
fraud, in law, upon the rights of the creditors of the
vendor But there is an essential difference between
the effect of a possession retained by the maker of an
absolute bill of sale and the possession retained by the
maker of a mortgage. The object of the one is to pass
the absolute right of property, and the object of the
other is to give a security defeasible upon a particular
contingency ; the possession in the former case is utterly
incompatible with the deed, whereas in the latter case
there exists no such incompatibility. Where by the
terms of the conveyance the vendee is not to have pos-
session until the performance or non-performance of a
certain condition, there the vendor’s continuing in pos-
session is no evidence of fraud, because it is consistent
with the trust appearing on the face of the deed, and
is not to be presumed to give a false credit to the
vendor.’ In case of mortgages, the possession of the
mortgagor is not inconsistent with the terms of the

 

Norton v. Doolittle, 32 Conn. 405; Goldsbury v. May, 1 Litt. 254;
Laughlin v. Ferguson, 6 Dana. 111; Webster v. Peck, 31 Conn. 495 ;
Paul y. Crooker, 8 N. H. 288; contra, Sydnor v. Gee, 4 Leigh, 535;
Powers v. Green, 14 Ill. 886 ; Cunningham vy. Hamilton, 25 Ill. 228;
Pringle v. Rhame, 10 Rich. 72; Jones vy. Blake, 2 Hill Ch. 629; Upson
v. Raiford, 29 Ala, 188; Wheeler y. Train, 8 Pick. 254.

* Hundley v. Webb, 3 J. J. Marsh, 6438.

? Merrill v. Dawson, 1 Hemp. 568. * Badlam vy. Tucker, 1 Pick. 389.
WHEN POSSESSION IS FRAUD. 191

contract and the nature of the transaction, for before
condition broken it is uncertain whether the property
will vest absolutely in the mortgagee or not, and
nothing is more common than to suffer the mortgagor
to retain possession until this may be ascertained.
Stipulations to this effect are often inserted in mortgage
deeds.’ It is for this reason that the retention of pos-
session under a mortgage is not deemed in the judg-
ment of the law to be fraudulent? The condition,
however, must be in the title, and not simply in the
contract. The title must depend on condition, and be
such as the court may consider legal and reasonable?
When the deed stipulates that the debtor may remain
in possession until default in payment of any or all
of the instalments, possession until default in payment
of all the instalments is consistent with the deed.

 

1 Homes v. Crane, 2 Pick. 607.

2 Stone v. Grubbam, 2 Bulst. 217; 8. c. 1 Rol. Rep. 3; Martindale v.
Booth, 3 B. & A. 498; Reed v. Wilmot, 7 Bing. 577; s.c.5 M. & P. 5538;
Conrad v. Atlantic Ins. Co, 1 Pet. 885; Barrow v. Paxton, 5 Johns. 258;
Adams y. Wheeler, 10 Pick. 199; Marsh v. Lawrence, 4 Cow. 461; Ashy.
Savage, 5 N. H. 545; Holbrook v. Baker, 5 Me. 309; Ward v. Sumner, 5
Pick. 59; D. Wolfe v. Harris, 4 Mason, 534; Brinley v. Spring, 7 Me.
241; Clayborn v. Hill, 1 Wash. (Va.) 177; Hundley v. Webb, 3 J. J.
Marsh, 648; McGowen v. Hoy, 5 Litt. 239; Watson v. Williams, 4 Blackf.
26; Thornton v. Davenport, 1 Scam. 296; Rose v. Burgess, 10 Leigh, 186 ;
U. 8. v. Hooe, 3 Cranch. 73; Snyder v. Hitt, 2 Dana. 204; Merrill v.
Dawson, 1 Hemp. 563; Fairbanks v. Bloomfield, 5 Duer, 434; Runyon v.
Groshon, 1 Beasley, 86: Wilson v. Russell, 18 Md. 494. Contra, Doak v.
Brubaker, 1 Nev. 218; Meyer v. Gorham, 5 Cal. 322; The Romp, Olcott,
196; Sibly v. Hood, 3 Mo. 206; Tobias v. Francis, 3 Vt. 425; Woodward
v. Gates 9 Vt. 358; Clow v. Woods, 5 8. & R. 275; Welsh v. Bekey, 1
Penn. 57; Doane v. Eddy, 16 Wend. 523; Randall v. Cook, 17 Wend. 53;
Swift v. Thompson, 9 Conn. 63; Case v. Winship, 4 Blackf. 425; King v.
Bailey, 6 Mo. 575; Gist v. Pressley, 2 Hill Ch. 318; Reeves v. Harris, 1
Bailey, 568; Gaylor v. Harding, 37 Conn. 508. When the stipulation is
that the mortgagor shall have possession, it is void though the possession
is with the: mortgagee; Meyer v. Gorham, 5 Cal. 322.

* Hundley v. Webb, 3 J. J. Marsh, 643

* Martindale v. Booth, 3 B. & A. 498 ; Magee v. Carpenter, 4 Ala. 469.
192 WHEN POSSESSION IS FRAUD.

STIPULATION IN MORTGAGE.—Anciently it was usual
to insert a clause in the mortgage that the mortgagor
should retain possession until default, but the under-
standing and practice now is that the mortgagor re-
mains in possession until default is made unless there
ig a contract to the contrary.!. When a stipulation is
inserted in the deed the possession must be consistent
with it. If the deed stipulates that the mortgagee
shall have the possession, the possession of the mort-
gagor is fraudulent.” The deed may contain a stipu-
lation that the grantor shall receive the rents and profits
until the grantee shall become entitled to demand the
money which the deed is intended to secure? A separ-
ate defeasance, instead of making the vendor's posses-
sion consistent with his deed, and thereby fair, evinces
his guilt by making it more difficult to detect the
fraud. It is a cover to a foul transaction, and not
the evidence of a fair one. Even if the parties intend
to make a mortgage, the form of the deed tells a false-
hood to the world, the truth only remaining to them-
selves. It is too late to disclose the truth after the
injury arising from the secrecy has been sustained.

Fravup in ract.—The rule does not declare that in
conditional sales the retention of possession by the
vendor may not be fraudulent, but that, as a general
rule, it is not necessarily so.° Deeds of trust are subject
to the same principles as mortgages.°

 

! Watson v. Williams, 4 Blackf. 26; Gist v. Pressley, 2 Hill Ch. 318;
Maney y. Killough, 7 Yerg, 440.

2 Jordan v. Turner, 3 Blackf. 309; Kitchell v. Bratton, 1 Scam. 300.

3 U. 8. v. Hooe, 3 Cranch. 73.

4 Gaither v. Mumford, 1 N. C. T. R. 167; Laughlin v. Ferguson, 6
Dana. 111. Contra, Homes y. Crane, 2 Pick. 607; Bartlett v. Williams, 1
Pick. 288; Sydnor v. Gee, 4 Leigh, 535.

® Hundley v. Webb, 6 J. J. Marsh, 643.

° Head vy. Ward, 1 J. J. Marsh, 280; Ravisies v. Alston, 5 AladQ97;
WHEN POSSESSION IS FRAUD. 193

ConDITION BROKEN.—Possession after the condition
is broken is not fraudulent, for when a conveyance is
not fraudulent at the time of the making of it, it cannot
be made fraudulent by any subsequent matter.! If the
mortgagee fails to take possession immediately upon
default, it cannot be assumed as a conclusion of law that
the mortgage is fraudulent. If the transaction is fair in
its inception, it cannot be denounced because the mort-
gagee does not avail himself of his rights stricti
juris. The retention of possession by the mortgagor
for an unreasonable length of time may warrant the
inference that the mortgage is held up as a protec-
tion for his property against the demands of his credit-
ors. But this is a conclusion which may be repelled by
proof that the indulgence of the mortgagee is compat-
ible with fair dealing, and induced by no intention to
favor the mortgagor to the prejudice of creditors. It
must, from the very nature of the case, be a question of
fact for the solution of the jury.’ Upon the extinguish-
ment of the mortgage by the purchase of the equity of
redemption, the possession should be changed, but the

 

Johnson vy. Cunningham, 1 Ala, 249; Malone v. Hamilton, Minor, 286;
Hopkins v. Scott, 20 Ala. 179.

1 Lambert’s Case, Shep. Touch. 65; Weaver v. Joule, 91 E. C. L. 309;
s.c. 8 C. B. (N.S.) 309; De Wolf v. Harris, 4 Mason, 5384; Head v. Ward,
1 J. J. Marsh, 280; Maples v. Maples, Rice Ch. 300; Gist v. Pressley, 2 Hill
Ch. 318; Simerson v. Bank, 12 Ala. 205; Planters’ Bank v. Willis, 5 Ala.
770; Dearing v. Watkins, 16 Ala. 20; Merrill v. Dawson, 1 Hemp. 563.
Contra, Armstrong v. Baldock, Gow. 33; Reed v. Eames, 19 II].594; Cass
v. Perkins, 23 Ill. 382; Hanford v. Obrecht,49 Ill. 146; Rhines v. Phelps,
3 Gilman, 455. No general rule can be established, but the mortgagee
must act with promptness, and must use every reasonable effort to reduce
the property into his immediate possession after a default of payment or
other condition broken by which he becomes entitled to possession (Cass
v. Perkins, 23 Ill. 382.)

? Planters’ Bank v. Willis, 5 Ala. 770.

13
194 WHEN POSSESSION IS FRAUD.

retention will make only the purchase of the equity of
redemption void, and the mortgage will be valid.*

MarrRiaGE SETTLEMENTS.—The retention of posses-
sion under a marriage settlement, whether antenuptial’
or postnuptial,? and whether of the husband’s property*
or the wife’s, is consistent with the deed, and does not
render the settlement void. The wife’s possession is
considered as the possession of the trustee, and not of
the husband.® The fact that goods held by a trustee as
the separate property of the wife have been in the pos-
session of her husband for a considerable time makes no
difference as to the right of the trustee to dispose of
them, or to recover the value if tortiously taken by or
in behalf of a creditor of the husband. It is difficult to
see how the wife could enjoy the avails of the property
without his participation, so long as they reside together.
Indeed, she may expressly authorize him to use or
enjoy her property without giving it to him, and his
ereditors can not complain, as they will lose nothing
by the transaction. The possession of the property by
the husband, if not inconsistent with the nature of the
trust, is not considered as fraudulent.’

PurcuasEs.—The interest is as much separate prop-
erty as the principal, and purchases made with it are

 

* Laughlin y. Ferguson, 6 Dana, 111. Contra, Clayborn vy. Hill, 1 Wash.
(Va.) 177; Glasscock v. Batton, 6 Rand, 78.

* Cadogan vy. Kennett, Cowp. 482.

* Arundell v. Phipps, 10 Ves. 189; Charlton v. Gardner, 11 Leigh. 281;
Waller v. Todd, 3 Dana, 503; Larkin vy. McMullin, 49 Penn. 29.

* Cadogan v. Kennett, Cowp. 482.

* Jarman y. Woolloton, 3 T. R. 618; Hazelinton vy. Gill, 3 T. R. 626,
note.

* Jarman v. Woolloton, 3 T. R. 618.

7 Merritt v. Lyon, 3 Barb. 110.
WHEN POSSESSION IS FRAUD. 195

hers and subject to the same rules as the principal
fund,’ and her possession is the possession of the trustee,
and not the possession of her husband.? By the com-
mon law the husband owns his wife’s property. Conse-
quently, if the income from the separate estate is deliv-
ered to her, either with the intent that it shall belong to
her or without any agreement that it shall still continue
to be a part of the separate estate, purchases made with
it will be liable to the husband’s creditors? There may
be facts which might warrant the inference that the
goods have been purchased by the husband with his
own funds, and that he has resorted to the pretext that
they are a part of his wife’s separate estate to protect
them from the search of his creditors. These are sub-
jects proper for the consideration of the jury. The
trustee for the wife may purchase the husband’s goods
at a sale under an execution, and leave them in the

possession of the wife, although she resides with her
husband.°

Pusuic sateE.—The notoriety of the change of posses-
sion will, in some instances, repel the presumption of
fraud. The mere seizure of goods on an execution is
not sufficient. A person cannot, then, pay the judgment,
take a bill of sale as security, and leave the goods in
the possession of the debtor.” But, after a sale at public

 

* Merritt v. Lyon 3 Barb. 110.

? Danforth v. Woods, 11 Paige, 9.

® Shirley v. Shirley, 9 Paige, 363; Carne vy. Brice, 7 M. and W. 183.

* Merritt v. Lyon, 3 Barb. 110.

® Quick v. Garrison, 10 Wend. 385; Cross vy. Glode, 2 Esp. 574.

* Ryall v. Rowles, 1 Ves, 348; 8. c.1 Atk. 165; Armstrong y. Baldock,
Gow. 33.

"Weil v. Paul, 22 Cal. 492; Laughlin v. Ferguson, 6 Dana, 111;
Leech y. Shantz, 2 Phila. 310; s.c. 5 A. L. Reg. 620; Weeks v. Wead, 2
Aik. 64. Contra, Jezeph v. Ingram, 8 Taunt. 838,
196 WHEN POSSESSION IS FRAUD.

auction under a deed of trust, the purchaser may permit
the debtor to keep the goods. After a sale under a
distress for rent, the goods may be left in the possession
of the tenant.2 The same principle applies to a sale
upon the foreclosure of a mortgage.’

SALE UNDER EXECUTION.—The retention of possession
after a sale under an execution rests upon even stronger
grounds. A distinction is established between a sale
made by the vendor or his individual agent, which, in
the absence of a physical coercion, is properly a volun-
tary as well as a private sale, and one made under a
legal mandate and by an officer of the law, and which
is therefore properly a coercive sale. And it is because
a sale of the latter class is made under command of the
law, and not under the mere will of the owner—by the
act of the law through its officer, and not by the indi-
vidual act of the party or his agent, and with that fair-
ness and publicity which the law requires and expects
from its officer, and not merely before such witnesses as
the owner may provide, that the law so far confides in
it as not to pronounce it conclusively void upon the mere
fact.that the possession remains with the former owner.*

 

* Leonard vy. Baker, 1M. & 8. 251; Fitler v. Maitland, 5 W. & 8. 307;
Dallam v. Fitler, 6 W. & 8. 323; Woodham v. Baldock, Gow. 35, note;
Gutzweiler v. Lachman, 28 Mo. 434; Ravisies v. Alston, 5 Ala 297; Bank
v. McDade, 4 Port. 252. Contra, Rogers v. Vail, 16 Vt. 327; Thompson v.
Yeck, 21 Ill. 73.

* Guthrie v. Wood, 1 Stark, 367; Waters v. McClellan, 4 Dall. 208;
Greathouse v Brown, 5 Mon. 280.

* Hanford v. Obrecht, 49 Ill. 146; Claytor v. Anthony, 6 Rand. 285;
Simerson v. Bank, 12 Ala. 205.

“ Laughlin v. Ferguson, 6 Dana, 111; Gates v. Gaines, 10 Vt. 346;
Cole v. Davies, 1 Ld. Raym. 724; Myers v. Harvey, 2 Penn. 478; Perry v.
Foster, 3 Harring. 293 ; Allentown Bank yv. Beck, 49 Penn. 394; McInstry
v. Tanner, 9 Johns, 185; Floyd v. Goodwin, 8 Yerg. 484; Bates v. Carter,
5 Vt. 602; Brandon v. Cunningham, 2 Stew. 249; Anderson v. Brooks, 11
WHEN POSSESSION IS FRAUD. 197

The principle applies to sales by commissioners’ as well
as constables,” It is immaterial whether the purchase
is made by a stranger,’ or the execution creditor. The
advertisements may be given to the debtor to post, and
the purchase may be for a low price.” The payment of
rent for the use of the goods makes a stronger case than
if the purchaser permits them to remain in the debtor's
custody without any consideration.’ The goods may be
left in the possession of the debtor upon condition that
he shall pay the money to the purchaser as he shall raise
it by a sale of them.’ Goods sold under an execution
may be conveyed to a trustee for the sole and separate
use of the debtor’s wife. It is not sufficient that the
sale is made at auction by the sheriff. The sale by the
sheriff must be upon legal process, and not under an
agreement where any other person might as well have
been agreed upon as he.’

Mere acreErMent.—If the sale is in fact made by
the private agreement or understanding of the parties,
and not by the coercion of the law, as under an execu-

 

Ala. 953; Coleman v. Bank, 2 Strobh. Eq. 285; Pennington v. Chandler, 5
Harring. 394; Dick v. Lindsay, 2 Grant, 431; Miles v. Edelen, 1 Duvall,
270,

} Miles v. Edelen, 1 Duvall, 270.

2 Pennington y. Chandler, 5 Harring. 894; Perry v. Foster, 3 Har-
ting. 293.

8 Kidd v. Rawlinson, 2B. & P. 59; Watkins v. Birch, 4 Taunt. 823 ;
Latimer v. Batson, 4 B. & C. 652; Garrett v. Rhame, 9 Rich. 407 ; Board-
man v. Keeler, 1 Aik. 158,

4 Simerson v. Bank, 12 Ala. 205; Watkins v. Birch, 4 Taunt. 823 ;
Boardman vy. Keeler, 1 Aik. 158; Allentown Bank v. Beck, 49 Penn. 394;
Gates v. Gaines, 10 Vt. 346.

® Allentown Bank v. Beck, 49 Penn. 394.

® Watkins v. Birch, 4 Taunt. 828; Myers v. Harvey, 2 Penn. 478.

7 Cole v. Davies, 1 Ld. Raym. 724.

® Anderson vy. Brooks, 11 Ala. 953.

* Batchelder v. Carter, 2 Vt. 168.
198 WHEN POSSESSION IS FRAUD.

tion which has been satisfied, it partakes of the charac-
ter of a private sale, and is subject to those rules of
law in relation to possession which are applied to pri-
vate sales. The intervention and abuse of the process
of the court cannot change the aspect of the case. So
also, although a sale under a trust deed has been adver-
tised, yet if the trustee is away on the day of sale, and
the debtor and cestud que trust enter into an arrangement
by which the latter sells the property at public auction,
it will be regarded as substantially a sale by the debtor
with the concurrence of the trust creditor.? This doctrine
in regard to the publicity of the transfer does not make
every public sale, with or without delivery, good. The
question of fraud is always open, and fraud vitiates
every sale.°

WHEN CHANGE Is ImposstBLE.—The acts that will
constitute a delivery vary in the different classes of
cases, and depend very much upon the character and
quantity of the property sold, as well as the circum-
stances of each particular case. Such possession only
need be taken as the nature of the case will permit.‘
Whenever the property is not so in the power of the
vendor as that he can give, or so in the reach of the
vendee as that he can receive possession, the want of
delivery does not constitute fraud, provided the vendee
takes possession as soon as it can reasonably be had.
The same acts are not necessary to make a good delivery
of ponderous articles, like a block of granite or a stack

 

1 Stephens v. Barnett, 7 Dana, 257; Tavenner v. Rohinson, 2 Rob. 280.

2? Tavenner v. Robinson, 2 Rob. 280.

* Pennington v. Chandler, 5 Harring. 394; Taylor v. Mills, 2 Edw.
Ch. 818; Dickenson v. Cook, 17 Johns. 382; Farrington v. Caswell, 15
Johns, 430.

‘ Manton v. Moore, 7 T. R. 67.
WHEN POSSESSION IS FRAUD. 199

of hay, as is required in case of an article of small
bulk, as a parcel of bullion’ There must be a manual
delivery of a single sack of grain at the moment of
its sale, but upon the sale of two thousand sacks this
cannot be done without incurring great and unneces-
sary expense and departing from the usual course of
business.” Upon the sale of furniture in a dwelling-
house, the property may be removed to another house,
or the vendor may leave the house and the vendee take
possession with all the ordinary indicia of ownership ;*
but in case of a sale of a large hotel, with many hun-
dred lodging rooms, parlors and sitting-rooms, besides
the culinary department, with its necessary offices all
duly furnished, the furniture cannot be removed with-
out great deterioration and expense. It is valuable
mainly for the purpose for which it is used, and in the
place where it is situated.* Upon the sale of a single
board, or of a cart-load of boards, it would not do to
set up a constructive delivery by marking and letting
it remain where it is until it is convenient to remove
it. The court would be bound to hold, as matter of
law, that such articles are capable of actual delivery ;
but it would be different with a board-yard filled with
many piles of lumber. There the circumstances are
such as to render an actual delivery and removal im-
practicable, or at least injurious and expensive. The
vendee must assume the control and do all that an
honest man would reasonably be expected to do to
advertise the public of the sale.” In such instances the

 

? Samuels v. Gorham, 5 Cal. 226; Doane v. Eddy, 16 Wend. 523; Ran-
dall y. Cook, 17 Wend. 53. .

? Lay v. Neville, 25 Cal. 545.

5 Steelwagon v. Jeffries, 44 Penn. 407.

* McKibbin v. Martin, 64 Penn. 352.

° McKibbin v. Martin, 64 Penn. 352; Long v. Knapp, 54 Penn. 514;
Haynes v. Hunsicker, 26 Penn, 58.
200 WHEN POSSESSION IS FRAUD.

rule is not impaired, but the case does not come with'n
itt

PonpERovs ARTIcLEs.—Bricks in the kiln, mown
hay in the field? unbaled hay,* cattle roaming over
unenclosed plains,’ growing crops,’ trees in the woods*
and a safe,® are instances of articles not susceptible of
immediate change of possession. Machinery which may
be separated from the building and removed without
injury to it or the building, must be delivered at the
time of the sale.? If a person buys a store of goods,
he may continue the business in the same place.”

WHat CHANGE NECESSARY.—In the case of ponderous
articles, it is not necessary that there should be an
actual removal of the goods and change of possession
from hand to hand." Every species of divestiture

 

 Sydnor v. Gee, 4 Leigh, 585; Land v. Jeffrics, 5 Rand. 211.

? Allen v. Smith, 10 Mass. 308.

3 Chaffin v. Doub, 14 Cal. 384.

* Conway v. Edwards, 6 Nev. 190.

® Walden v. Murdock, 28 Cal. 540.

°- Bernal v. Hovious, 17 Cal. 541; Robbins v. Oldham, 1 Duvall, 28;
Herron v. Fry, 2 Penn. 263; Bellows v. Wells, 36 Vt. 593; Morton v.
Ragan, 5 Bush. 334; Visher v. Webster, 13 Cal. 58; Cummins y. Griggs,
2 Duvall, 87. By statute in California, a mortgage of growing crops must
be recorded, and possession taken as soon as they are harvested. (Quiri-
aque v. Dennis, 24 Cal. 154.)

7 Fitch v. Burk, 38 Vt. 683.

® Benford v. Schell, 55 Penn. 393.

* Swift v. Thompson, 9 Conn. 63; Tobias v. Francis, 3 Vt. 425;
Gaylor v. Harding, 37 Conn. 508. By statute, in Vermont, there need be
no change of possession of machinery when the mortgage is recorded.
(Walworth v. Readsboro, 24 Vt. 252.)

© Hugus v. Robinson, 24 Penn. 9; Warner v. Norton, 20 How. 448;
Hall v. Parsons, 15 Vt. 358; s,c. 17 Vt. 271; Dunlap v. Bournonyille, 26
Penn. 72; Ford v. Chambers, 28 Cal. 18.

“ Cartwright v. Phoenix, 7 Cal. 281; Luckenbach y. Brickenstein, 5
W.& 8. 145; Allen v. Smith, 10 Mass. 308.
WHEN POSSESSION IS FRAUD. _ 201

which can give the world notice should however be re-
sorted to.’ Each case must in a great manner depend upon
its own circumstances in regard to the acts that may be
requisite to manifest the actual and continued change
of possession.” It is sufficient that the vendee assumes
the direction and control, and in such an open, notori-
ous manner as usually accompanies an honest transac-
tion. Whether all is done that ought to be done,
and whether the change of possession is real and bona
Jide, not merely colorable and deceptive, are questions
of fact that ought to be submitted to the jury’ Ifa
kiln of bricks is left in the exclusive possession of the
vendor, the sale will be fraudulent.* But setting up
stakes in the yard and marking the bricks, if notorious,
is sufficient. Merely telling the hands and others that
a raft belongs to the vendee is not a sufficient delivery.
The vendor can leave the raft after making a public
declaration in the presence of witnesses that he de-
livers it up to the vendee® A formal delivery of
timber, accompanied with marking and counting, is
sufficient without any measurement.’ It is not neces-
sary that the marking of lumber in piles should be
done immediately at the time of the delivery. It is
sufficient if it is done within a reasonable time, that is,
as soon as it conveniently can be done.s The delivery
of the key where goods are locked up is a delivery of

 

3 Chase vy. Ralston, 80 Penn. 539; Hutchins v. Gilchrist, 23 Vt. 82.

? Lay v. Neville, 25 Cal. 545.

3 McKibbin v. Martin, 64 Penn. 352; Chase v. Ralston, 80 Penn. 539;
Lay v. Neville, 25 Cal. 545.

4 Woods v. Bugbey, 29 Cal. 466; Richards v. Schroeder, 10 Cal. 481.

5 Allen v. Smith, 10 Mass. 308.

® Cadbury v. Nolen, 5 Penn. 320.

7 Chase v. Ralston, 30 Penn. 539; Sanborn y. Kittredge, 20 Vt. 632 ;
Hutchins v. Gilchrist, 23 Vt. 82; Haynes v. Hunsicker, 26 Penn. 58.

* Long v. Knapp, 54 Penn. 514,
202 WHEN POSSESSION IS FRAUD.

the goods themselves’ It will be symbolical only
when the vendor remains in apparent connection with
the goods, but is valid in other cases? The vendor
may be employed to cut and cure growing crops.’
The vendee is entitled to a reasonable time in which to
complete the delivery, by reducing the goods into his
actual possession.*

Distance.—When the chattels sold are so situated
in regard to distance that there can be no delivery at
the time of the sale, the case forms an exception to the
general rule, and it is sufficient if the vendee without
any gross laches takes possession and asserts his title in
a reasonable time after he has an opportunity to take
possession.» It is not in the power of the parties under
such circumstances to deliver the possession, and con-
sequently a delivery is not required. A familiar exam-
ple of this doctrine is in the case of a sale ofa ship,’ or of
goods at sea," where possession is dispensed with upon
the plain ground of its impossibility, and it is sufficient
if the vendee takes possession of the property within
a reasonable time after its return. The exception ex-
tends to protect contracts relating to ships which are at
home, but in a port distant from the place where the
contract is made. The distance between the place of

 

’ Barr v. Reitz, 53 Penn. 256; Benford v. Schell, 55 Penn. 393.

? Barr v. Reitz, 53 Penn. 256,

* Cummins v. Griggs, 2 Duvall, 87; Fitch v. Burk, 388 Vt. 683. Contra,
Welsh v. Bekey, 1 Penn. 57.

‘ Haynes v. Hunsicker, 26 Penn. 28; Walden v. Murdock, 28 Cal. 540.

° Ricker yv. Cross, 5 N.H.570; Meade v. Smith, 16 Conn. 366.

° Atkinson v. Maling, 2 T.R. 462; Badlam v. Tucker, 1 Pick. 389;
Morgan v. Biddle, 1 Yeates, 8.

" Conrad y, Atlantic Ins, Co. 1 Pet. 385; Portland Bank v. Stacey,
4 Mass, 661; Dawesv. Cope, 4 Binn. 258; Gardner v. Howland, 2 Pick.
599.
WHEN POSSESSION IS FRAUD. 203

sale and the port is immaterial.! The transfer of ships
is commonly made by a bill of sale, and the title passes
upon the execution of the instrument.” The delivery of
the bill of lading and policy of insurance is sufficient in
sales of goods.®

The vendee is not bound to follow the vessel from
port to port, but may reasonably wait her return to the
port where she belongs, and where the bill of sale is
executed.* Ifthe vendee appears chargeable with neg-
lect in not taking possession seasonably, it is only
evidence of fraud, and may be explained.’ But
where the delay and negligence are gross, they will of
themselves defeat the conveyance against any subse-
quent attacking creditor. Whether they exist or not
depends upon the situation and circumstances of the
vessel, and of the vendee.’ What precise period is em-
braced under the term reasonable time, and when that
degree of negligence is imputable by which a transfer
is vacated, has not been distinctly settled to a day or
an hour." A delay for one year has been held to
amount to an abandonment of all right under the con-
veyance.® A return and stay for eleven days, if un-
known to the vendee, and departure upon another

 

? Putnam v. Dutch, 8 Mass. 287.

? Putnam v. Dutch, 8 Mass, 287; Portland Bank v. Stacey, 4 Mass.
661. In England, the delivery is made by delivering the grand bill of
sale. In Portland vy. Stacey, 4 Mass. 661, it is said that there is no distinction
between what is commonly called the grand bill of sale in England, which
is necessary to pass ships at sea, and the bills of sale for vessels used in
America.

® Dawes v. Cope, 4 Binn. 258.

4 Badlam v. Tucker, 1 Pick. 389.

5 Badlam v. Tucker, 1 Pick. 389.

* Joy v. Sears, 9 Pick. 4; Mair v. Glennie, 4 M. & 8. 240.

7 Brinley v. Spring, 7 Me. 241.

® Meeker y. Wilson, 1 Gallis, 419.
204. WHEN POSSESSION IS FRAUD.

voyage does not vitiate the sale.’ It is not necessary
to have an agent in the home port when the vessel is
expected in another port.’ Seizure on legal process be-
fore the expiration of a reasonable time is sufficient
excuse? Notice to the captain of the transfer of the
ship is equivalent to the taking of possession.*

Constructive Posszssion.—The rule has its origin
in the doctrine that the retention of possession after a
sale gives the vendor a false credit, and deceives
creditors. This can only occur in the case of an
actual possession by the vendor, for wherever there
is merely a constructive possession, all persons are
put upon the inquiry. Such a possession does not
give a false credit. It is therefore a general principle
that a constructive possession will pass by a constructive
delivery. <A bill of sale is sufficient, tor it places the
property at the disposal of the vendee, and gives him
not only the title, but a constructive possession with
power to reduce it to an actual possession at his own
pleasure. When goods are in a warehouse, the delivery
is complete by an order on the warehouseman, and the
fact that the goods stand on the books of the warehouse-
man in the name of the vendor, who also sells some of
them afterwards, will not make the sale fraudulent.?’ In
case of a bailment, the property passes when the sale is
completed, and no formal delivery is necessary. The
sale is the only change of which the property is suscep-

 

1 Turner v. Coolidge, 2 Met. 350.

1 Joy v. Sears, 9 Pick. 4.

5 Conrad v. Atlantic Ins. Co. 1 Pet. 885; Putnam v. Dutch, 8 Mass.
287.

4 Brinley v. Spring, 7 Me. 241.

* Hutchins v. Gilchrist, 23 Vt. 82.

° Hutchins v. Gilchrist, 23 Vt. 82.

7 Jones v. Dwyer, 15 Hast, 21.
WHEN POSSESSION IS FRAUD. 205

tible.* After the execution of the bill of sale, the
vendee is entitled to a reasonable time either to give
notice of the fact to the bailee, or to take possession of
the property. Whether he uses this diligence, or is so
remiss that fraud ought to be inferred, is a question for
the jury.”

Bairr.—lIf the vendor of goods in the care and
keeping of a third person, directs him to deliver them
to the vendee, and the party holding the goods on
notice and application of the vendee consents to retain
the goods for him, it is a sufficient delivery and transfer,
for the actual possession is then in such third person?
This is upon the ground that the vendor after
such notice has neither the actual nor constructive
possession, and is divested of all control over the prop-
erty. The mere pendency of an attachment does not
prevent the transfer, for the garnishee has the power to
waive his right to hold possession of the property in
favor of a purchaser.” The principle does not apply
when the bailee is simply to pay over a part of the pro-

 

1 Linton v. Butz, 7 Penn. 89; Goodwin vy. Kelly, 42 Barb. 194; Nash
vy. Ely, 19 Wend. 523; Butt v. Caldwell, 4 Bibb. 458.

? Ingraham y. Wheeler, 6 Ct. 277.

> Barney v. Brown, 2 Vt. 374; Spaulding v. Austin, 2 Vt. 555; Lin-
ton v. Butz, 7 Penn. 89; Whigham’s Appeal, 63 Penn. 194; Kroesenv.
Seevers, 5 Leigh, 434; Warner v. Norton, 20 How. 448; Harding v. Janes,
4 Vt. 462; Pierce v. Chipman, 8 Vt. 334; Kendall v. Fitts, 22 N.H.1;
Morse v. Powers, 17 N. H 286; Hodgkins v. Hook, 23 Cal. 581; Mont-
gomery v. Hunt, 5 Cal. 366; Walcott v. Keith, 22 N. H. 196 ; Potter v.
Washburn, 13 Vt. 558; Cartwright v. Phoenix, 7 Cal. 281. In Vermont
the transfer is not valid without notice to the bailee. Moore v. Kelley, 5
Vt. 34. Notice by the vendor alone is not sufficient. Judd v. Langdon, 5
Vt. 281.

4 Harding v. Janes, 4 Vt. 462.

* Walcott v. Keith, 22 N. H. 196.
206 WHEN POSSESSION 18 FRAUD.

ceeds to the vendee1 The vendor may subsequently
interfere temporarily to remove the property from one
place to another as the agent of the vendee,’ or may
be employed to rent or sell the property.’

Srervant.—This principle is not applicable to a
mere servant.! The possession of a mere servant or
hired man is but the possession of the master, and
does not, like the possession of other third persons,
put creditors upon inquiry. To give it that effect
there must be some change in the labor, or some-
thing external, to show to the world the new rela-
tion. Mere contract resting between the parties has
no such effect.®

SuBJECT TO INTEREST OF A THIRD PARTY.—Although
the property has been hired out, the owner may trans-
fer the right, subject to the terms upon which it has.
been hired. The subsequent holding by the person
who hired it should not be treated as the possession of
the vendor, opposed to the transfer of right. The pos-
session does not continue to be the possession of the
vendor. It is not in its nature incompatible with the
right transferred, and ought not, therefore, to stamp the
contract as fraudulent in itself. With the transfer of
right in the property, the right of possession, subject to.
the qualified interest held by another, is also trans-
ferred. The possession of such third person is a possession

 

1 Richards v. Schroeder, 10 Cal. 431.

* Kendall v. Fitts, 22 N. H 1.

* Harding v. Janes, 4 Vt. 462,

* Doak vy. Brubacker, 1 Nev. 218; Hurlburd vy. Bogardus, 10 Cal.
518.

* Flanagan v. Wood, 83 Vt. 882; Sharon v, Shaw, 2 Nev. 289; Sleeper-
vy. Pollard, 28 Vt. 709.
WHEN POSSESSION IS FRAUD. 207

connected with the right of property, and ought, there-
fore, rather to be regarded, in the hands of the person
hiring, as following the transfer of the right of prop-
erty in the hands of the purchaser.’ Mere notice,
without any consent to hold for the vendee, will make
the transfer unimpeachable.?

Upon anoruEr’s Lanp.—The same principle applies
when the chattels are upon the land of another. Such
goods are not in the actual possession or beneficial use
of the debtor. All that he has is a constructive
possession, flowing from his general right of property,
and this possession will follow the right of property
under a bill of sale. After the execution of the bill of
sale, the goods cannot be considered as remaining even
in his constructive possession. Much less has he any
beneficial use and possession.> It is not necessary that
there should be a change in the local situation of the
property, for there may be a change in the possession,
while the site of the property remains the same.‘ It is
sufficient if the former owner is divested of the legal
and ostensible control. When his connection with the
article has ceased, it will not be presumed that he is in
the visible, ostensible occupancy of the land.’ The
vendee is entitled to a reasonable time to take possession
of the goods.®

 

> Butt v. Caldwell, 4 Bibb. 458; Kroesen v. Seevers, 5 Leigh, 434;
Lynde v. Melvin, 11 Vt. 683; Roberts v. Guernsey, 3 Grant, 287; Thomas
y. Hilthouse, 17 Iowa, 67.

? Wooley v. Edson, 35 Vt. 214.

® Hutchins v. Gilchrist, 23 Vt. 82.

4 Hutchins vy. Gilchrist, 23 Vt. 82; Cartwright v. Phoenix, 7 Cal. 281;
Merritt v. Miller, 13 Vt. 416.

® Merritt v. Miller, 13 Vt. 416.

* Walden vy. Murdock, 28 Cal. 540; Morse v. Powers, 17 N. H. 286.
208 WHEN POSSESSION IS FRAUD.

Prior To EXECUTION.—When there is no change of
possession at the time of the sale, it will be sufficient if
the vendee takes possession before the right of a cred-
itor attaches, by levy under an execution or other legal
process.! If the change does not immediately follow
the sale, it is proper matter to go to the jury, on the
question of a fraudulent sale in fact.2 When the pos-
session has been with the vendee for a long period, the
transfer is valid, although the property remained with
the vendor for a considerable time after the sale.’ It is
not sufficient to take possession after the vendor's
death.*

CHANGE AS TO PaRT.—Leaving a part of the goods
in the possession of the vendor, does not affect the part
of which the vendee has the possession. Though it is,
in point of law, conclusive of the voidness of the sale,
to the extent of the property thus remaining in the
possession of the vendor, it cannot determine conclu-
sively, and as to other property, the question of fact
whether the vendee, in making the purchase, intended
to defraud the creditors of the vendor, or to aid him in
the accomplishment of that object. Such a fact is not
of itself, and without regard to the other facts of the

 

* Bartlett v. Williams, 1 Pick. 288; Hall v. Parsons, 15 Vt. 358; Kendall
vy. Samson, 12 Vt. 515; Read v. Wilson, 22 Ill. 377; Calkins v. Lockwood,
16 Conn 276; Blake v. Graves, 18 Iowa, 312; Cruikshanks v. Cogswell, 26
Ill 366; Sydnor v. Gee, 4 Leigh, 535; Clute v. Steele, 6 Ney. 335; Smith
v. Stern, 17 Penn. 360. Contra, Carpenter v. Mayer, 5 Watts,483; Gibson
v. Love, 4 Fla. 217; Chenery v. Palmer, 6 Cal. 119; Hackett v. Manlove,
14 Cal. 85; Ragan v. Kennedy, 1 Tenn. 91; Gardenier v. Tubbs, 21 Wend.
169; Claytor v. Anthony, 6 Rand. 285.

* Kendall v. Samson, 12 Vt. 515; Cruikshanks v. Cogswell, 26 ILL.
366.

* Henderson y. Mabry, 13 Ala. 713; Mauldin v. Mitchell, 14 Ala.
814.

“ Shields vy. Anderson, 3 Leigh, 729; Edwards v. Harben, 2 T. R. 587.
WHEN POSSESSION IS FRAUD. 209

case, sufficient to require the conclusion that the whole
sale is fraudulent and void! The transfer is good and
operative as to the articles delivered, and void and in-
operative as to the residue? But the possession and
use of a part of the goods by the vendor is evidence to
be weighed by the jury, in determining upon the
honesty and validity of the transaction.’

ContinveD.—The change of possession must not
only be actual, but it must be continued in order to
render a sale valid as against the vendor’s cred-
itors;* but one or more acts of intermeddling with
the property by the vendor, after the sale, do not
amount to a retention of possession.” A few and fitful
instances of use by the vendor,’ or temporary acts of
ownership, without the consent of the vendee, will not
vitiate the sale." Temporary lendings or hirings,* or a
temporary interference by thé vendor, to remove the
property from one place to another,’ will not render the
transaction void. But a mere temporary change, if the
property revert immediately into the possession of the
vendor, is not sufficient.” As the change of possession

 

? Brown v. Foree, 7 B. Mon. 357.
? Weller v. Wayland, 17 Johns. 102; D’Wolf v. Harris, 4 Mason, 515;
Lee v. Huntoon, 1 Hoffm. 447; Spaulding v. Austin, 2 Vt. 555; Brown v.
Foree, 7 B. Mon. 857; De Bardleben vy. Beekman, 1 Dessau. 346; Hessing
v. McCloskey, 37 Ill. 341.
* Spaulding v. Austin, 2 Vt. 555; Brown v. Foree, 7 B. Mon. 357;
Contra, Foster vy. Pugh, 12 8. & M. 416.
“Miller vy. Garman, 28 Leg. Int. 405; Leech v. Shantz, 2 Phila. 310 ;
8, c. 5 A. L. Reg. 620; Norton vy. Doolittle, 32 Conn. 405,
° Lake v. Morris, 30 Conn. 201.
* Farnsworth yv. Shepard, 6 Vt. 521; Lyndon v. Belden, 14 Vt. 423.
" Hodgkins v. Hook, 23 Cal. 681.
® Farnsworth v. Shepard, 6 Vt. 521; Lyndon v. Belden, 14 Vt. 423.
® Kendall v. Fitts, 22 N. H. 1.
© Morris v. Hyde, 8 Vt. 352; Norton v. Doolittle, 32 Conn. 405; Weeks
v. Wead, 2 Aik, 64; Goldsbury v. May, 1 Litt, 254.
14
210 WHEN POSSESSION IS FRAUD.

is necessary to consummate or perfect the vendee’s
right or title, if it is omitted through the neglect or
disobedience of an agent, and the property thus finds
its way back into the possession of the vendor, the
vendee must bear the consequences! But when the
property at the time of the sale is in the hands of a
bailee for a time limited, and the vendee has no right
to immediate possession, and can not select an agent to
take or keep possession for him, the fact that the bailee
permits the property to go back into the possession of
the vendor before the determination of his right, will
not avoid the sale.”

ScupsEquent return.—The rule is not an absolute
prohibition of any subsequent return of the property
into the possession of the vendor. After the sale has
become perfected by such visible, notorious, and con-
tinued change of possession, that the creditors of the
vendor may be presumed’ to have notice of it, a return
of the property to the vendor will not, by its own
mere operation, render the transaction fraudulent.*
Before the return there must be such a change of pos-
session as indicates to the world at large a change of
ownership. It must be open, visible, and substantial,
and such an one as indicates a change of possession, or
a sufficient explanation should exist to show why the
possession was not changed. It should be such as

 

* Morris v. Hyde, 8 Vt. 352.

? Lynde v. Melvin, 11 Vt. 683.

* Brady v. Haines, 18 Penn. 113; Graham v. McCreary, 40 Penn. 515;
Clark v. Morse, 10 N. H. 286; French vy. Hall, 9N.H.137; Prosser y. Hen-
derson, 11 Ala. 484; Sutton v. Shearer, 1 Grant, 207; Carpenter v. Clark, 2
Nev. 243; Johnson vy. Willey, 46 N. H. 75; Stevens v. Irwin, 15 Cal. 508;
Waldie v. Doll, 29 Cal. 555; Lewis vy. Wilcox, 6 Nev. 215 ; Brown v. Riley,
22 Ill 45; Neece v. Haley, 23 Ml. 416. Contra, Van Pelt y. Littler, 10 Cal.
394; Bacon y. Scannell, 9 Cal, 271.
WHEN POSSESSION 18 FRAUD. 211

may fairly lead those around, if they have any interest
in the matter, to a reasonable belief that there has been
a sale and change of property.’ The ostensible nature
and purpose of the vendee’s possession, as well as its
duration, will be considered in determining whether it
is so manifest and substantial as to be unprejudiced by
allowing the property to return to the vendor's con-
trol If the property has been attached, this will
assist in giving notoriety to the transfer.2 The change
of possession must also continue for such a length of
time as will be likely to operate as a general
advertisement of the change of title* It is impossible
to lay down a fixed rule applicable to all cases estab-
lishing the length of time a vendee of personal prop-
erty should continue in the exclusive possession. Each
case must necessarily be governed and determined by
its own peculiar circumstances.’ Eight or ten days®
has been deemed insufficient. Five weeks has been
considered sufficient." The vendee after such an open
change of the possession, may lend or let the goods to the
vendor or employ him to sell or perform any other serv-
ice about them with the same safety as he may a stran-
ger.® Butthe return can only be for a temporary purpose.
The vendor can not have the permanent possession and use
of them in his own business. A minor son may, how-

 

1 Clark v. Morse, 10 N. H. 236. ? Houston v. Howard, 39 Vt. 54.

’ Clark v. Morse, 10 N. H. 236.

‘ Carpenter v. Clark, 2 Nev. 243.

® Weil v. Paul, 22 Cal. 492.

° Weeks v. Wead, 2 Aik. 64; Rogers v. Vail, 16 Vt. 327; Mills v.
Warner, 19 Vt. 609; Miller v. Garman, 28 Leg. Int. 405; Look v. Comstock,
15 Wend. 244. Contra, Cunningham v. Hamilton, 25 Ill. 228; Wright y.
Grover, 27 Ill. 426.

7 Brady v. Haines, 18 Penn. 113.

® Dewey v. Thrall, 13 Vt. 281; Harding v. Janes, 4 Vt. 462; Brady v.
Haines, 18 Penn. 113.

° Mills v. Warner, 19 Vt. 609.
212 WHEN POSSESSION IS FRAUD.

ever, purchase them in good faith, and bring them
home to his father’s, where he resides."

An assignment of a chose in action, is subject to the
rule which requires a change of possession.? In the
case of things in action, the usual muniments of title
should be conferred upon the grantee. In the case of
stocks, the natural and appropriate indication of owner-
ship is the entry upon the stock record? There is no
distinction between prior and subsequent creditors.*

Lanp.—Possession of real estate is not without
weight, and in a doubtful case would incline the court
not to yield to any just suspicions arising from other
causes. But it does not per se raise a presumption of
fraud as it does in the case of personal estate. Posses-
sion is prima facie evidence of ownership. The same
rule does not apply to real estate. Possession is not
there deemed evidence of ownership. The laws of most
nations require solemn instruments to pass the title to
real property. The public look not so much to pos-
session as to the public records, as proofs of the title to
such property. The possession must therefore be in-
consistent with the sale and repugnant to it in terms or
operation, before it raises a just presumption of fraud.°

 

Jordan v. Frink, 3 Penn. 442.

* Welch v. Beekey, 1 Penna. 57; Woodbridge v. Perkins, 8 Day, 364;
Hall v. Redding, 13 Cal. 214. * Pinkerton v. Railroad, 42 N. H. 424.

* Clow v. Woods, 5 8. & R., 275; Young y. Pate, 4 Yerg. 164; Smith
v. Lowell, 6 N. H. 67; Paul v. Crooker, 8 N. H. 288; Woodrow v. Davis,
2B. Mon. 206; Rankin y. Holloway, 3 8. & M. 614; Smith v. McDonald,
25 Geo. 377.

* Phettiplace v. Sayles, 4 Mason, 312; Every v. Edgerton, 7 Wend. 259;
Waller v. Todd, 8 Dana. 5038; Avery v. Street, 6 Watts, 247; Bank of
U. 8. v. Houseman, 6 Paige, 526; Paulling v. Sturgus, 3 Stew. 95; Barr
v. Hatch, 3 Ohio, 527; Short v. Tinsley, 1 Met. (Ky.) 397; Tibbals v.
Jacobs, 81 Conn. 428; Merrill v. Locke, 41 N. H. 486; Lyne v. Bank, 5
J.J. Marsh, 645; Allentown Bank y. Beek, 49 Penn. 394; Ludwig v.
Highley, 5 Penn, 132.
CHAPTER VII.

PREFERENCES.

REASONS WHY A PREFERENCE IS NOT FRAUDULENT.—
Where creditors take no specific security from their
debtor, they trust him upon the general credit of his
property and a confidence that it will not be dimin-
ished to their prejudice. They have, therefore, an
equitable interest in it which the law, under certain
circumstances, recognizes and enforces. The statute is
founded upon the principle of protecting this equitable
right. When a transfer, however, is made to a creditor,
his equity is the same as that of the others, and he is en-
titled to the benefit of the universal rule, that where
the equities are equal the legal title must prevail. An
existing indebtedness is, therefore, a good consideration
within the proviso which saves the rights of bona fide
purchasers. There being no equity prior to that of the
vendee, the necessity which calls for a new consider.
ation in other cases does not exist.’

RIGHT TO PREFER IS A CONSEQUENCE OF OWNERSHIP.
—The abstract principles of natural justice dictate that
the property of an insolvent debtor should be applied
for the equal benefit of all creditors, but they have
been found impracticable without the aid of some arti-

 

? Beymour v. Wilson, 19 N. Y. 417; Adams v. Wheeler, 10 Pick. 199;
Gibson v. Seymour, 4 Vt. 518; Gleason v. Day, 9 Wis. 498; Seymour y.
Briggs, 11 Wis. 196 ; McMahan v. Morrison, 16 Ind. 172; Wilson v. Ayer,
7% Me. 207; Towsley v. McDonald, 32 Barb. 604; vide Harney v. Pack, 4
S. & M. 229; Pope y. Pope, 40 Miss. 516.
214 PREFERENCES.

ficial system. The right of the debtor to use, control,
and dispose of his property, is, in the absence of any
statute, absolute, and he is in no manner rightfally
subject to the dictation of his creditors, for they have
no legal right in his property by reason of being
creditors The principles of the common law could
not be shaped to general ends in any other way. To
make a different general rule would be to take away a
man’s right over his own property, and involve the
necessity of vesting an inquisitorial power somewhere.”
This is the only ground on which the right to prefer
can be placed. So long as the property of a debtor
remains in his hands unshackled by lens or incum-
brances, his power over it is absolute, and he can, in
the absence of any statute, dispose of it by way of
satisfaction to his creditors as well as by sale.” If the
right of giving a preference were to be denied while
- the debtor retains his property in his own hands, he
would so far lose dominion over his own that he could
not pay anybody, because whoever he paid would re-
ceive a preference.* It is therefore necessary to leave
a discretion to the debtor within the limits of fraud.
Society has to depend for its indemnity upon the
teachings of the debtors’ heart and conscience; upon
those moral lights which all men possess, and upon the
native sense of justice.°

THE LAW KNOWS NO DISTINCTION BETWEEN DEBTS.
—The right of preference has been advocated by many

 

1 Lampson v. Arnold, 19 Iowa, 479.

2 Wilson v. Forsyth, 24 Barb. 105.

* Grover v. Wakeman, 11 Wend. 187; Danee v. Seaman, 11 Gratt. 778 ;
Wilson v. Forsyth, 24 Barb. 105; Lupton v, Cutter, 8 Pick. 298; Robin-
son y. Rapelye, 2 Stew. 86; Tillou v. Britton, 4 Halst. 120.

4 Lampson v. Armmold, 17 Iowa, 479.

* Niolon vy. Douglass, 2 Hill Ch. 443.
PREFBRENCES. 215

enlightened jurists, on the ground that the debtor, pos-
sessing an intimate knowledge of the relative equities
of his creditors, could make a more just distribution
than the law. It has been said that there are some
debts which a person honestly may, and even ought to
prefer! The notion however, of honorary debts in con-
tradistinction to other debts founded on a fair and
adequate consideration, is a dangerous distinction, and
calculated to injure and mislead the moral sense. The
law does not recognize such a principle of honor, and
the courts have no means by which they can test its
purity, or separate it from arbitrary, selfish, or vindic-
tive motives of preference. The principle is too uncertain,
flexible, and capricious in the application? The law,
moreover, can not recognize any distinction between
legal obligations, nor defer its own wisdom and honesty
to the wisdom and honesty of a delinquent debtor.’

A. PREFERENCE NOT ALWAYS GIVEN TO MERITORIOUS
pDEBTSs.—LExperience also shows that a preference is some-
times given to the very creditor who is the least
entitled to it, because he lent to the debtor a delusive
credit, and that too no doubt under assurances of a well
grounded confidence of priority of payment, and per-
fect indemnity in case of failure. It often happens
that the creditor who has been the means of decoying
others is secured, while the real business creditor, who
parts with his property on liberal terms, and in manly
confidence, is made the victim.’ It is true that the debts
preferred are usually considered and termed by the

 

" Murray 0. Riggs, 15 Johns. 671; Dana v. Bank of U.8. 5 W. & 8.
223.

? Riggs v. Murray, 2 Johns. Ch. 565.

® Grover vy. Wakeman, 11 Wend. 187.

* Riggs v. Murray, 2 Johns. Ch. 565; 8. c. 15 Johns. 671.
216 PREFERENCES.

parties honorable and confidential, and these deceptive
terms doubtless conceal from many the mischiefs and
immorality of the system. But whether the terms are
justly applied is a different question. There is, indeed,
a mutual confidence and understanding when the debts
are contracted. The friendly creditor lends his money
or credit to furnish the capital which the borrower
needs in the confidence, express or implied, that he shall
incur no risk from the insolvency of the debtor, but that,
in all events, whatever may be the losses and sufferings
of others, he shall be protected. But asecret confidence
by which the public is deceived, and creditors, excluded
from its knowledge and benefits, made the victims of their
credulity and ignorance—a confidence which in respect
to third persons is a source of delusion and an instru-
ment of fraud, assuredly deserves any other name than
that of honorable. It is not an agreement that it im-
plies, but a conspiracy." Such an exercise of the right
to prefer simply constitutes the debtor an agent to obtain
money from one man and bestow it upon another at his
will and pleasure.*

PREFERENCE NOT FAVORABLE TO COMMERCE.—It is
thought by some that the right of preference favors
commercial enterprise by affording to those destitute of
capital a credit founded on the power of securing con-
fidential at the expense of business creditors. If this is
so, it is at best but a poor argument in its favor, for it
is founded obviously in wrong. The facility of ob-
taining credit under such circumstances is, in theory
nothing more than a facility for committing fraud, and,
in practice, has proved nothing less. The experience of
all commercial communities leads to the conclusion

 

* Nicholson v. Leavitt, 4 Sandf. 252.
* Boardman y. Halliday, 10 Paige, 228,
PREFERENCES. 217

that this power of preferring creditors is a fruitful source
of fraud, and in every respect mischievous and unwhole-
some.’ The right moreover is not always exercised in
favor of so-called meritorious debts. An influential cred-
itor is often preferred while those who are poor, or are
minors, or are absent, or want the means or spirit to en-
gage in litigation, are abandoned. The principle is
also frequently perverted, and made subservient to the
gratification of vindictive feelings, and to the perpetra-
tion of the foulest injustice, as well as ingratitude
towards honest and confiding creditors?

PREFERENCES NoT FRaupULENT.—By virtue of his
absolute dominion over his property, a debtor, however,
may either give or allow a preference. It is no part of
the policy of the statute to prohibit its application to
the payment of one debt rather than another. The
maxim vigilantibus non dormientibus leges subserviunt
apples. Hence it is that a creditor who can secure a
sufficiency, according to law, to satisfy his claim, is en-
titled to hold it against other creditors This right

 

? Grover v. Wakeman, 11 Wend. 187 ; Lupton v. Cutter, 8 Pick. 298 ;
Atkinson y. Jordan, 5 Ohio, 295.

? Riggs v. Murray, 2 Johns, Ch. 565; 8. c. 15 Johns. 571; Grover v.
‘Wakeman, 11 Wend. 187.

* Cunningham vy, Freeborn, 11 Wend. 241.

* Benton v. Thornhill, 2 Marsh. 427; s.c. 7 Taunt. 149; Eveleigh v.
Purrsford, 2 Mood. & Rob. 5389; Cameron v. Montgomery, 18 8. & R. 128;
Ragan vy. Kennedy, 1 Tenn. 91; Waterbury v. Sturtevant, 18 Wend. 353;
McMenony v. Roosevelt, 8 Johns. Ch. 446; Lewis v. Whittemore, 5 N. H.
364; Terry v. Belcher, 1 Bailey, 568; Phettiplace v. Sayles,4 Mason, 312;
Sommerville v. Horton, 4 Yerg. 541; Hoofsmith v. Cope, 6 Whart. 53 ;
Maples v. Maples, Rice Ch. 300; Floyd v. Goodwin, 8 Yerg. 484; Wiley v.
Lashlee, 8 Humph. 717; McQuinnay v. Hitchcock, 8 Tex. 33; Fromme v.
Jones, 13 Iowa, 474; Parnell v. Howard, 26 Iowa, 88; Cowles v. Rickett,
1 Iowa, 582; Bruce v. Smith, 3H. & J. 499; Cole v. Albers, 1 Gill, 412; Glenn
v. Grover, 8 Md. 212; Anderson v. Tydings, 3 Md. Ch. 167; Mayfield v.
Kilgour, 81 Md. 240; Grogan vy. Cooke, 2 Ball. & B, 283; Holbird v.
218 PREFERENCES.

moreover, is not affected by the debtor's insolvency,’ or
the preferred creditor’s knowledge of such insolveney.’

ALTHOUGH OTHERS LOSE THEIR DEBTS.—The fact that
a suit is pending, or that the transfer includes all the
debtor’s property, or that other creditors lose their
debts by reason of the debtor’s inability to meet all
the demands against him,’ does not necessarily affect

 

Anderson, 5 P. R. 235 ; Green v. Tanner, 8 Met. 411; Harrison v. Philips
Academy, 12 Mass. 456; Guild v. Leonard, 18 Pick. 511; Buffum v. Green,
5 N. H. 71; Hendricks v. Robinson, 2 Johns. 283; s.c. 17 Johns, 438;
Lewkner y. Freeman, Prec. Ch. 105; 1 Eq. Cas. Abr. 149; 2 Freem. 236;
Williams v. Brown, 4 Johns. Ch. 682; M’Broom v. Rives, 1 Stew. 72;
Eaton vy. Patterson, 2 Stew. & Port. 9; Stover v. Herrington, 7 Ala. 142;
Gary v. Colgin, 11 Ala. 514; Lowrie v. Stewart, 8 Ala. 163; Hinde v.
Vattier, 1 McLean, 110; s.c. 7 Pet. 252; Coolidge v. Curtis, 7 A. L. Reg.
834; Blakey’s Appeal, 7 Penn. 449; Worman v. Wolfersberger, 19 Penn.
59; Hutchinson v. McClure, 20 Penn. 63; Hickman v. Quinn, 6 Yerg. 96;
Young v. Stallings, 5 B. Mon. 307; Bullock y. Irvine, 4 Munf. 450;
Bates v. Cole, 10 Conn. 280; Kemp v. Walker, 16 Ohio, 118; Choteau v.
Sherman, 11 Mo. 385; Moseley v. Gainer, 10 Tex. 393 ; Hubbard v. Taylor,
5 Mich. 155 ; Bull v. Harris, 18 B. Mon. 195.

Glenn v. Grover, 3 Md. 212; Waite v. Hudson, 1 Dane Ab. 635 ;
Green vy. Tanner, 8 Met. 411; Auburn Bank y. Fitch, 48 Barb. 344;
Williams v. Jones, 2 Ala. 314; Covanhovan v. Hart, 21 Penn. 495; Lloyd
v. Williams, 21 Penn. 827; Ford ». Williams, 8B. Mon. 550; Johnson
v. McGrew, 11 Iowa, 151.

* Terry v. Belcher, 1 Bailey, 568; Sibly v. Hood, 8 Mo. 206; Hind-
yoan y. Dill, 11 Ala. 689; Fromme y. Jones, 13 Iowa, 474; Hessing v.
McCloskey, 37 Ill. 341 ; Green v. Tanner, 8 Met. 411; Walsh v. Kelly, 42
Barb. 98; 8. c. 27 How. Pr. 359; Johnson v. McGrew, 11 Iowa, 151;

* Kuykendall v. Hitchcock, 15 Mo. 416; Waterbury v. Sturtevant, 18
Wend. 353.

* Alton v. Harrison, L. R. 4 Ch. 622; Sibly v. Hood, 8 Mo. 206.

° Ocoee Bank v. Nelson, 1 Cold. 186; Ferguson v. Kumler, 11 Minn.
104; Lee y. Flannagan, 7 Ired. 471; Hopkins v. Beebe, 26 Penn. 85; Keen
v. Kleckner, 42 Penn. 528 ; Lord v. Fisher, 19 Ind. 7; McGregor v. Chase,
85 Vt. 225; Prior v. White, 12 Ill. 261; Cason v. Murray, 15 Mo. 878;
Hall v. Arnold, 15 Barb. 699; Ewing v. Runkle, 20 Ill. 448; Waddams v.
Humphrey, 22 Ill. 661; Wheaton v. Neville, 19 Cal. 41; Brewster v. Bours,
8 Cal. 501; National Bank v. Sprague, 6 C. B. Green, 18; Guignard y.
Aldrich, 10 Rich. Eq. 253 ; Central R. R. Co. v. Claghorn, Speer's Ch. 545;
Williams v. Jones, 2 Ala. 814.
PREFERENOES. 219

the validity of the preference. There is a distinction
to be observed between the effect of a transfer by a
debtor in failing circumstances made to pay one or
more of his debts, and that intent to hinder, delay, or
defraud his other creditors, against which the statute is
aimed. The effect of the preference may be to delay
them, or even to prevent them from obtaining payment
at all, but if the motive is to pay the preferred debt,
the transaction is not invalidated. The statute is aimed
only at intended fraud, but the payment of a debt to
one creditor is no fraud upon other creditors—no legal
injury to them.

PREFERENCE NOT AFFECTED BY PERSON OR MODE.—
The preference may be given to any lawful demand
against the debtor, whether due or. not,? and whether
held by his wife, or his attorney,‘ or any other person.
A corporation may prefer a director. The preference
may be given in any mode which the law recognizes as
legal for effecting a transfer whether by a mortgage,’ ora
deed," or judgment,’ or the transfer of a note,’ or of any

 

~ + York County Bank v. Carter, 38 Penn. 446; Meade v. Smith, 16
Conn. 356; Kirtland v. Snow, 20 Conn. 23; Hessing v. McCloskey, 37
Il. 341.

* Carpenter v. Muren, 42 Barb. 300; Hill v. Northrop, 9 How. Pr. 525.

®* Mayfield v. Kilgour, 31 Md. 240.

* Hill v. Rogers, Rice Ch. 7.

* Central R. R. Co. v. Claghorn, Speers Ch. 545.

° Kennaird v. Adams, 11 B. Mon. 102; Jones v. Naughright, 2 Stockt.
298; Carnall v. Duvall, 22 Ark. 136; Wiley v. Lashlee, 8 Humph. 717.

7 Waterbury v. Sturtevant, 18 Wend. 353; Barr v. Hatch, 3 Ohio, 527;
Buffum v. Green, 5 N. H. 71; Covanhovan y. Hart, 21 Penn. 495; Kemp
v. Walker, 16 Ohio, 118; Morse y. Slason, 13 Vt. 296; Leadman v. Harris,
3 Dev. 144; Harrison v. Phillips Academy, 12 Mass. 456.

® Wilder v. Winne, 6 Cow. 284; Hill v. Northrop, 9 How. Pr. 525;
Davis v. Charles, 8 Penn. 82; Lowry v. Coulter, 9 Penn. 349; Siegel v.
Chidsey, 28 Penn. 279; Greenwalt v. Austin, 1 Grant, 169; Meeker vy.
Harris, 19 Cal. 278; Shedd y. Bank, 32 Vt. 709.

® Savings Bank v. Bates, 8 Conn. 505; Tillon v. Britton, 4 Halst. 120.
220 PREFERENCES.

other property. A large debt may be split up into
small sums, so as to bring it within a magistrate’s juris-
diction, and judgments may be confessed thereon, and
the property of the debtor taken on executions.’ An
attachment may be issued without the knowledge of
the creditor? The debtor may also apply his labor to
increase the value of property which has been mort-
gaged.®> A mere representation that the creditor wishes
to protect the property from executions, will not of
itself render the preference fraudulent.t The prefer-
ence may be made to take effect at the death of the
debtor The fact that the debtor at the time of giving
the preference is about to abscond,* does not render it
void.

INTENT TO DEFEAT AN ExEcUTION.—A preference may
be given and received for the express purpose of defeat-
ing an execution,’ for the mere intent to defeat an
execution does not of itself constitute fraud. The pay-
ment of a just debt is what the law admits to be right-
ful, and is not, therefore, fraudulent, either in law or in
fact. The preferred creditor can not be affected inju-
riously with notice of the debtor’s intent to prefer, and

 

? Floyd v. Goodwin, 8 Yerg. 484; Newdigate v. Lee, 9 Dana, 17;
L’Avender v. Thomas, 18 Geo. 668; Bank vy. Planter’s Bank, 22 Geo. 466;
Alexander v. Young, 23 Geo. 616.

? Baird vy. Williams, 19 Pick. 381; vide Ryan v. Daly, 6 Cal. 288,

® Perry v. Pettingall, 383 N. H.483. * Reynolds v. Wilkins, 14 Me. 104.

° Morse v. Slason, 13 Vt. 296; Exton v. Scott, 6 Sim. 31.

® Garr v. Hill, 1 Stockt. 210.

™ Holbird vy. Anderson, 5 T. R. 235; Wood v. Dixie, 53 E. C. L. 892; s.¢.
7 Q. B. 892; Funk vy, Staats, 24 Ill. 632; Darville v. Terry, 6H. & N. 807; Hall
v. Arnold, 15 Barb. 599; Hartshorne v. Eames, 31 Me. 93 ; Gassett v. Wilson,
3 Fla. 235; Wheaton v. Neville, 19 Cal. 41; Kuykendall v. Hitchcock, 15
Mo. 416; Rich v. Levy, 16 Md. 74; Weller v. Wayland, 17 Johns. 102;
Waterbury y. Sturtevant, 18 Wend. 353; Wilder v. Winne, 6 Cow. 284;
Barr y. Hatch, 3 Ohio, 527; Hendricks v. Mount, 2 South, 738; Walden
v. Murdock, 28 Cal. 540.
PREFERENCES. 297

thereby defeat an execution, because the purpose is
honest and such as the law sanctions. This is not de-
laying or hindering within the meaning of the statute.
It does not deprive other creditors of any legal right,
for they have no right to a priority.

One creditor of a failing debtor is not, under the
statute, bound to take care of another. In such case, if
the assets are not sufficient to pay all, somebody must
suffer. It is a race in which it is impossible for every
one to be foremost. He who has the advantage,
whether he gets it by the preference of the debtor
or by his own superior vigilance, or by both causes
combined, is entitled, under the statute, to what he
wins, provided he takes no more than his honest due.
He is not obliged to look out for other creditors, or to
consider whether they will or will not get their. debts.”
He does not violate any principle of the statute when
he takes payment or security for his demand, though
others are thereby deprived of all means of obtaining
satisfaction of their own equally meritorious claims, and
though he may be aware of the intent of the debtor
to defeat the collection of them.’ Fraud, in its legal
sense, cannot be predicated of such a transaction.
Wherever there is a true debt and a real transfer, there
is no collusion.®

 

1 Uhler v. Maulfair, 23 Penn. 481; Bird v. Sitken, Rice Ch. 73.

? Covanhovan v. Hart, 21 Penn. 495; Auburn Bank v. Fitch, 48 Barb. 344.

* Dana v. Stanfords, 10 Cal. 269; Waterbury v. Sturtevant, 18 Wend.
353; Thornton vy. Davenport, 1 Seam. 296; Ford v. Williams, 3 B. Mon.
550; Worland v. Kimberlin, 6 B. Mon. 608; Jones v. Naughright, 2 Stockt.
298; Young v. Dumas, 39 Ala. 60; Gray v. St. John, 36 Ill. 222; Banfield
v. Whipple, 14 Allen, 13; Kennaird v. Adams, 11 B. Mon. 102; vide,
Ashmead v. Hean, 13 Penn. 584.

* Chase v. Walters, 28 Iowa, 460; Auburn Bank v. Fitch, 48 Barb.
344; Kennaird v. Adams, 11 B. Mon. 102.

® Clemens v. Davis, 7 Penn. 263.
222 PREFERENCES.

SrorEr Motives rmMaTERIAL.—All that the law re-
quires in the case of a preference is good faith” Where
creditors are equally honest, they are equally favored
by the law, and their rights are determined according
to their respective priorities.” The secret motives which
prompt the preference are immaterial. The law can
take no cognizance of feelings and intentions which
are not manifested by external conduct. It cannot as-
sign a bad motive to an act which is not wrong either
in itself or in its necessary consequences. When the
act is right, no secret feeling can change its character.
In contemplation of law, the motive which results in
proper action is not a bad one.’ The desire to avoid
a sacrifice,* or to prevent an expected criminal prosecu-
tion, or an expectation to receive future employment,’
or that the property will be settled upon the debtor's
wife or family,’ or mere caprice, or favoritism, or the
gratification of secret ill-will,* does not affect the validity
of the transfer, for such secret motives are not the sub-
ject of legal inquiry. Where there is merely a prefer-
ence, even a jury is not at liberty to deduce fraud from
that which the law pronounces honest.? The mere fact
that the transfer includes all the property which is not
exempt from execution, is not material.”

PREFERENCE MUST BE IN GOOD FAITH AND REAL.—A

 

’ Phettiplace v. Sayles, 4 Mason, 312; Ford v. Williams, 8 B. Mon. 550.
2 Lloyd v. Williams, 21 Penn. 327.

5 Bunn vy. Ahl, 21 Penn. 387.

4 Barr v. Hatch, 3 Ohio, 527; Wheaton v. Neville, 19 Cal. 41.

° Marbury v. Brooks, 7 Wheat, 556; s. c. 11 Wheat. 78.

° Crawford v. Austin, 34 Md. 49.

7 Young v. Stallings, 5 B. Mon. 807; Cureton vy. Doby, 10 Rich. Eq. 411.
® Spaulding v. Strang, 37 N. Y. 135; 5. c. 88 N. Y. 9.

° York County Bank v. Carter, 38 Penn. 446,

»» Young v. Dumas, 39 Ala, 60,
PREFERENCES. 223

transfer, however, may be fraudulent although it is
made in consideration of an honest debt, for an honest
claim may be used as a cover to a covinous transaction.’
The distinction is between a transfer made solely by,
way of preference of one creditor over others, and a sim- | |
ilar transfer made with a design to secure some benefit
or advantage therefrom to the debtor,’ or to delay credit-
ors in the collection of their debts.2 While the law
permits an insolvent debtor to make choice of the per- 5
sons he will pay, it denies him the right in doing it to!
contrive that other creditors shall never be paid,‘ or to,
use the debt of the preferred creditor as a colorable
consideration to screen and protect his property from ‘
their claims,’ or to delay, hinder, and embarrass them in >
the enforcement of their demands.6 The amount of the
property transferred compared with the debt intended’
to be secured or paid, and the number, amount, and
character of the other debts are proper subjects for con-
sideration in determining the good faith of the trans-
actions towards other creditors’ The property

 

+ 1 Welcome v. Balchelder, 23 Me. 85.

? Banfield v. Whipple, 14 Allen, 13; Barr vy. Hatch, 3 Ohio, 527; Bar-
tels v. Harris, 4 Me. 146; Bullock y. Irvine, 4 Munf. 450.

* Johnson v. Whitwell, 7 Pick. 71.

‘ Drury v. Cross, 7 Wall. 299 ; James v. Railroad Company, 6 Wall. 752.

5 Twyne’s Case, 3 Co. 80; Benton v. Thornhill, 2 Marsh. 427; Graham
vy. Furber, 78 E. C. L. 410; Devries v. Phillips, 63 N.C. 53; Pulliam v.
Newberry, 41 Ala. 168; Hartshorne v. Eames, 31 Me. 98; Passmore v. Eld-
ridge, 12S. & R. 198; Gans v. Renshaw, 2 Penn, 34; Goodhue v. Berrien, 2
Sandf. Ch. 680; Choteau v. Sherman, 11 Mo. 385; Johnson y. Sullivan,
23 Mo. 474; Clarkson y. White, 8 Dana, 11; Foster vy. Grigsby, 1 Bush.
86; Kirtland v. Snow, 20 Ct. 23; Ruykendell vy. McDonald, 15 Mo. 416;
Constenting v. Twelves, 29 Ala. 607.

® Stoddard v. Butler, 20 Wend. 507; Kilby v. Haggin, 3 J. J. Marsh, 208 ;
Cleveland v. Railroad Co. 7 A. L. Reg. 537; Edrington v. Rogers, 15
Tex. 188; Crowninshield vy. Kittredge, 7 Met. 520; Bunn v. Ahl, 29 Penn.
887; Hancock v. Horan, 15 Tex. 507.

¥ Glenn y. Grover, 3 Md. 212; Adams v. Wheeler, 10 Pick. 199; Kuy-
224 PREFERENCES.

must bear a reasonable proportion to the preferred
debt."

PREFERENCE TAINTED BY SECRET TRUST.—The right
to prefer must be exercised in perfectly good faith. If
the preference is merely a temporary arrangement to
prevent a sacrifice of the property and preserve the rights
of all to an equal distribution, with an understanding
that the property shall constitute a part of an assign-
ment to be subsequently executed, it is fraudulent.
Such an arrangement is against the policy of the law
and the plain legal rights of other creditors.’ Creditors
also are not allowed to gain a preference by means of a
secret undertaking to hold a part of the property for
the benefit of the debtor. Quod alias justum a&
bonum est, si per fraudem petatur, malum e& in
justum efficitur. The law looks with great jealousy
upon the manner of giving preferences, and de-
nounces all departures from good faith, and requires
that the parties shall not secure any covert advantage
to the debtor in prejudice of his creditors? The law,
however, does not interdict every species of favor to an
unfortunate debtor under the penalty of vacating all
securities taken on those terms. On the contrary, a
creditor may be as indulgent, and show as much favor
as he pleases as the price of obtaining security. Care
must only be taken that there is no secret understand-

 

kendall v. Hitchcock, 15 Mo. 416; Edrington v. Rogers, 15 Tex. 188;
Robinson v. Stewart, 10 N. Y. 189; Rahn v. McElrath, 6 Watts, 151; Hale
v. Allnutt, 86 E. C. L. 505; 8. 0. 18 C. B. 505.

* Rahn v. McElrath, 6 Watts, 151; Robinson v. Stewart, 10 N. Y. 189.

* Johnson vy. Whitwell, 7 Pick.71; Low v. Graydon, 50 Barb. 414;
Dalton vy. Currier, 40 N. H. 2387,

* White v. Graves, 7 J. J. Marsh, 523; Garland y. Rives, 4 Rand. 282;

Pettibone y. Stevens, 15 Conn. 19; Kissam v. Edmondson, 1 Ired. Eq.
180.
PREFERENCES. 225

ing constituting a trust in the creditor in derogation or
contravention of the ostensible alienation or the trans-
fer, will be deemed a cover, and consequently void.t

Creprror’s Bounty.—The preferred creditor may
give a portion of his debt, or the property received in
payment of it, as a bounty to the family of the debtor,
for the generosity is not at the expense of other credit-
ors. In every case the inquiry is as to the rights of the
creditors, and if they are not deprived of any right
there is no ground to set aside the transfer. An act of
spontaneous kindness and indulgence on the part of the
creditor should not be confounded with fraud in the
debtor, and the best feelings should not be chilled and
stifled by an overweening tendency to detect collusion?
The gift, however, must be the act of the creditor, in-
dependent of any arrangement between the debtor and
creditor at the time, or as a part of the contract to con-
vey property either as a security or in apparent pay-
ment of the debt. The law looks to the substance and
not the form of transactions. If a gift is forced from
the creditor by making a transfer of a part of the debt
or property to the debtor’s family the condition and
price for obtaining security or payment for the balance,
the transaction is fraudulent. Whatever benefit is se-
cured, either openly or covertly, to the debtor out of the
effects conveyed by him is inconsistent with the pro-
fessed purpose of conveying to satisfy or secure the debt
to the creditor, and for that reason is mala fide and
void.?

 

Jackson vy. Browneli, 3 Caines, 222; Meeker v. Harris, 19 Cal. 278.

? Cureton v. Doby, 10 Rich. Eq. 411 ; Webb v. Roff, 9 Ohio st. R. 480;
Young v. Dumas, 39 Ala. 60; Young y. Stallings, 6 B. Mon. 307.

* Kissam vy. Edmondson, 1 Ired. Hq. 180; Garland vy. Rives, 4 Rand.
282; Marshall vy. Hutchinson, 5 B. Mon. 298.

15
226 PREFERENCES.

Burpen oF proor.—The burden of proof rests upon
the creditors who impeach the preference,’ and the fraud-
ulent intent must be clearly shown.’

WHEN CREDITOR MAY PuRCHASE—Although the
purchase exceeds the amount of the indebtedness,
still if the excess is reasonably necessary for attain-
ing the lawful purpose of satisfying the actual debt,
the purchase to the whole extent may be attrib-
uted to the same motive of self interest, and therefore
the mere fact of the excess does not of itself invalidate
the transaction unless there are other circumstances
tending to show a fraudulent intent on the part of the
purchaser.*

 

* Glenn yv. Grover, 3 Md. 212; Johnson v. McGrew, 11 Iowa, 151.

° Barr v. Hatch, 3 Ohio, 527; Jones v. Naughright, 2 Stockt. 298.

* Young v. Stallings, 5 B. Mon. 307; Ford vy. Williams, 3 B. Mon, 550;
Little vy. Eddy, 14 Mo. 160; Bear's Estate, 60 Penn. 4380.
CHAPTER VIII
THE BONA FIDES OF THE TRANSFER.

INSOLVENT DEBTOR MAY SELL.—The statute does not
deprive a man of the power to sell or otherwise dispose
of his property, although he may be insolvent,! and the
mere fact that the transfer may tend to delay or hinder
his creditors will not alone render it fraudulent. Many
sales made in the ordinary course of business may
and do defeat creditors who could have levied upon
the property if it had been retained for a while longer,
yet these are valid? The power of a debtor to
sell implies the corresponding right of another to pur.
chase. Mere insolvency alone does not vitiate any
transfer. In addition to the indebtedness there must be
an intent on the part of the debtor to delay, hinder, or
defraud his creditors.

Wuy INNOCENT VENDEE IS PROTEOTED.—When the
transfer is made for a valuable consideration, there must
be not only a fraudulent intent, on the part of the debtor
but also a participation in that intent on the part of the
grantee, for the statute excepts from its operation all
estates or interests which are upon good consideration
and bona fide, lawfully conveyed, or assured to any per-
son not having at the time of such conveyance or assu-

 

> Churchill v. Wells, 7 Cold. 364; Copis v. Middleton, 2 Madd. 410;
Phettiplace v. Sayles, 4 Mason, 812; Pecot v. Amelin, 21 La. An, 667;
Hardey v. Green, 12 Beav. 182; Smith v. Henry, 2 Bailey, 118.

? Atwood vy. Impson, 5 C. E. Green. 150.
228 THE BONA FIDES OF THE TRANSFER.

rance to him made any manner of notice or knowledge
of such covin, fraud, or collusion. Creditors have an
equitable interest in the property of the debtor which
the law under certain circumstances recognizes and en-
forces, but when a valuable consideration is paid in
good faith for a transfer, the interest of the creditor is
superseded. ‘The purchaser in such case, having parted
with value upon the faith of the vendor’s possession
and ownersbip of the property, acquires not only the
legal title, but an equity which is paramount to that of
the creditors. It is obviously this equity alone arising
out of the consideration paid, which protects the right
of the purchaser, because the mere legal title is trans-
ferred by a gift as completely as by sale. The statute
is based upon these principles. It is because both
law and justice recognize the equitable interest of
creditors in the property of the debtor that a transfer
of such property to defeat their demands is declared to
to be void, and the right of a dona fide purchaser for a
valuable consideration is protected by the statute, be-
cause the equity of such purchaser is superior to that of
a mere general creditor, for the obvious reason that the
purchaser has not like the creditors trusted to the
personal responsibility of the debtor, but bas paid the
consideration upon the faith of the debtor’s actual title
to the specific property transferred." A man paying a
full and valuable consideration in good faith for the
property, may moreover justly suppose that the pur-
chase, so far from diminishing the means of the vendor,
for paying his debts, will afford him a facility for doing
so.” It is upon these grounds that the rights of a grant-
ee who acts in good faith, and gives a valuable con-

 

* Seymour y. Wilson, 19 N. Y. 417.
? Pierson vy. Tom, 1 Tex. 577.
THH BONA FIDES OF THE TRANSFER. 229

sideration, are protected although there may have been
a fraudulent intent on the part of the debtor! The
same principle is asserted in the civil law, Hoc edictum
eum coercit gui sciens eum in fraudem creditorum
hoe facere, suscepit guod in fraudem fiebat. Quare si
quid in fraudem creditorum factum sit, st tamen is
qui cepit, ignoravit, cessare videntur verba edicti?

GRANTEE WITHOUT CONSIDERATION NOT PROTECTED-—
An inquiry into the good faith of the grantee is only
necessary, however, when there is a valuable considera-
tion for the transter.2 The mere acceptance of a transfer,

 

” Heroy vy. Kerr, 21 How. Pr. 409 ; Carpenter v. Muren, 42 Barb. 300;
Waterbury v: Sturtevant, 18 Wend. 353; Borland vy. Mayo, 8 Ala. 104;
Waters v. Riggin, 19 Md. 536; Troxall y. Dunnock, 24.Md. 163 ; Hessing v.
McCloskey, 37 Ill, 341; Smith v. Henry, 2 Bailey, 118; s.c 1 Hill, 16; Sibly
v. Hood, 3 Mo. 206; Wilson v. Lott, 5 Fla. 805; Swinerton v. Swinerton,
1 Dane Ab. 628; Kittredge v. Sumner, 11 Pick. 50; Green v. Tanner, 8
Met. 411; King v. Marissal, 3 Atk. 192; Badger v. Story, 16 N. H. 168;
Johnson y. Johnson, 3 Met. 68; Currier v. Taylor, 19 N. H. 189; Sands v,
Hildreth, 14 Johns. 493; Waterbury v. Sturtevant, 18 Wend. 353; Hall v.
Arnold, 15 Barb. 599; Anderson vy. Hooks, 9 Ala. 704; Davis v. Tibbetts,
39 Me. 279; McLaren vy. Thompson, 40 Me. 284; Union Bank v. Toomer, 2
Hill Ch. 27; Blair vy. Bass, 4 Blackf. 589; Thompson y. Saunders,
6 J. J. Marsh, 94; Violett v. Violett, 2 Dana, 323; Hutchinson v.
Horn, 1 Smith, 242; Ratcliffe v. Trimble, 12 B. Mon. 82; Sterling y.
Ripley, 3 Chand. 166; Splawn v. Martin, 17 Ark. 146; Ewing v.
Runkle, 20 Ill, 448; Frank v. Peters, 9 Ind. 344; Dart v. Farmer’s Bank,
27 Barb. 387; Fifield v. Gaston, 12 Iowa, 218 ; Miller v. Byran, 3 Iowa, 58;
Palmer vy. Henderson, 20 Ind. 297 ; Sisson v. Roath ; 30 Conn. 15; Hutchin-
son vy. Watkins, 17 Iowa, 476; Meixsell v. Williamson, 35 Tl]. 529 ; Apperson
vy. Ford, 23 Ark. 746; Mills v. Haines, 3 Head, 332; Hamilton v. Staples, 34
Conn, 316; Leach v. Francis, 41 Vt.670; Byrne v. Becker, 42 Mo. 264;
Webster v. Folsom, 58 Me. 230; Lassiter v. Davis, 64 N. C. 498; Rose v.
Coble, 1 Phil. 517; McCormick y. Hyatt, 33 Ind. 546; Durfee v. Pavitt, 14
Minn. 424; Merchants’ Bank v. Newton, 7 C. E. Green, 58.

? Dig. lib. 42 tit. 9, § 8,1 Domat. B. 2 tit. 10.

3 Newman v. Cordell, 43 Barb. 448; Wood v. Hunt, 38 Barb. 302; Peck
v. Carmichael, 9 Yerg. 325; Gamble vy. Johnson, 9 Mo. 605; Swartz v.
Hazlett, 8 Cal. 118; Wise v. Moore, 31 Geo. 148; Clark v. Chamberlain,
13 Allen, 257; Hicks vy. Stone, 13 Minn, 434; Lee v. Figg, 37 Cal. 328.
230 THE BONA FIDES OF THE TRANSFER,

without a valuable consideration, is of itself sufficient
evidence of a participation in the debtor’s fraudulent
intent.t Simili modo dicimus et si cut donatum est non
esse quaerendum an sciente et cut donatum gestum sit,
sed hoc tantum an fraudentur creditores. Nec videtur
injuria, affict is qui ignoravit cum lucrum extorqueatur,
non damnum infligatur. In hos tamen. gut ignorantes
ab eo gut solvendo non sit, liberalitatem acceperunt,
hactenus actio ertt danda, quatenus locupletiores facti
sunt ; ultra non?

GooD FAITH AS WELL AS A VALUABLE CONSIDERATION.
—A transfer, however, made on a good consideration, if 1t
is not also dona fide is not within the proviso. The words
of the proviso are “on a good consideration and bona
fide.” A transfer must therefore not only be on a good
consideration, but also dona fide® If a transfer is for a
valuable consideration, the only question is whether it
is bona fide And on that point every case stands on
its own merits. If it is not in good faith, it is void,
although the grantee pays a full~consideration, for the
law never allows one man to assist in cheating another.

 

> Belt v. Raguet, 27 Tex. 471.

® Dig lib. 42 tit. 9, § 11; 1 Domat. B, 2 tit.10.

® Twyne’s Case, 3 Co. 80; Copis v. Middleton, 2 Madd. 410; Harrison
v. Kramer, 3 Iowa, 543; Glenn v. Randall, 2 Md. Ch. 220; Wood v.
Chambers, 20 Tex. 247.

* Hale v. Saloon Omnibus Co. 4 Drew, 492; 8. c. 28 L. J. Ch. 777;
Harman y. Richards, 10 Hare, 81; Holmes v. Penney, 3 K. & J. 90.

* Cadogan v. Kennett, Cowp. 432; Worsley v. DeMattos, 1 Burr. 467;
Devon vy. Watts, Doug. 86; Wickham v. Miller, 12 Johns, 820; Stein v. Her-
mann, 23 Wis. 132; Pulliam v. Newberry, 41 Ala. 168; Chappel v. Clapp,
29 Iowa, 161; Harrison v. Jaquess, 29 Ind. 208; Sayre v. Fredericks, 1 C. E.
Green, 205 ; Carny v. Palmer, 2 Cold. 85; Weisiger v. Chisholm, 22 Tex.
670; Castro v. Ilies, 22 Tex. 479; Gardinier v. Otis, 18 Wis. 460; Smith v.
Culbertson, 9 Rich. 106 ; Barrow v. Bailey, 6 Fla. 9; Clark v. Wentworth,
6 Me. 259; Edrington v. Rogers, 15 Tex. 188; Robinson v. Holt, 39 N. H.
557; Duelly v. Van Houghton, 4 N.Y. Leg. Obs. 101; Johnston v. Dick, 27.
THE BONA FIDES OF THE TRANSFER. 231

The reason is manifest. Fraud may as readily be effected
when a full and fair price is paid as when nothing is
paid. A person may resolve not to pay his debts, and
another knowing this may treat with him and purchase
his whole estate at a fair and full price, and thus enable
him to defeat the claims of his creditors. Although the
purchaser gains no advantage, he enables the debtor to
evade the payment of his debts, and the effect upon the
creditors is precisely the same as if nothing were
paid As it is the intent to withdraw the debtor's
property from the reach of his creditors that generally
makes a transfer for full value fraudulent, a real ex-
change of a debtor’s land for other land in the same
neighbourhood of equal value and equally secure in
point of title, can not be deemed fraudulent and void
as to the grantor’s creditors, except under exceptional
circumstances.”

Notice to GrantEE.—Notice makes a man a mala
jide purchaser. It is per se evidence of mata fides? 'The
words “ without notice,” in the proviso, however, are not
applicable to the debt of the party making the transfer
but to “covin fraud or collusion.” Quod ait praetor
sciente, sic accipimus te conscio e fraudem participante ;
non enim, si simpliciter scio illum creditores habere,

 

Miss. 277; Johnson vy. Sullivan, 23 Mo. 474; Rogers v. Evans, 3 Ind. 574 ;
Borland v. Mayo, 8 Ala. 105 ; Shannon v. Commonwealth, 8 8. and R. 444;
Johnson y. Brandis, 1 Smith, 263 ; Pettus v. Smith, 4 Rich. Eq. 197; Wal-
cott v. Brander, 10 Tex. 419; Lowry v. Pinson, 2 Bailey, 324; Farmers’
Bank vy. Douglas, 11S. &M. 469; Watson v. Dickens, 12 8. & M. 608;
Moseley v. Gainer, 10 Tex. 393; Clements vy. Moore, 6 Wall. 299; Peck v.
Land, 2 Kelly, 1; Cadbury v. Nolen, 5 Penn. 820; Ayres v. Moore, 2 Stew,
336 ; Zerbe vy. Miller, 16 Penn. 488.

? Rea v. Alexander, 5 Ired. 644; Lowry v. Pinson, 2 Bailey, 324 ; Brown
y. Foree, 7 B. Mon. 357; Kaine v. Weigley, 22 Penn. 179; Clements v. Moore,
6 Wall. 299.

2 Ford y. Williams, 3 B. Mon. 550.

® Humphries v. Freeman, 22 Tex. 45. 4 Jones vy. Boulter, 1 Cox, 288.
232 THE BONA FIDES OF THH TRANSFER.

hoe sufficit ad contendendum teneri im factum actione,
sed si particeps fraudis est.’ Mere knowledge of the
debtors insolvency,’ or of a judgment,’ or of a threatened
attachment,‘ is not sufficient, unless the object of the
debtor is to delay, hinder, or defraud his creditors, and
this purpose is known to the grantee. Up to the day
of the delivery of the writ to the sheriff, the debtor may
transfer his personal property provided it is not a mere
trick to evade an execution. But notice of a fraudulent
intent on the part of the debtor, will vitiate the trans-
fer.

Actual knowledge is not necessary. A knowledge
of facts sufficient to excite the suspicions of a prudent
man and to put him on inquiry,’ or to lead a person of or-
dinary perception to infer fraud,° and the means of know-
ing by the use of ordinary diligence,’ amount to notice
and are equivalent to actual knowledge in contemplation
of law. The nature and circumstances of the transaction
may sometimes be such as must apprise the grantee of
its character and object. es ipse loqguitur® If the
grantee is the debtor’s wife, it will not require much

 

’ Dig. lib. 42, tit. 9.

? Atwood v. Impson, 5 C. E. Green, 150 ; Hughes v. Monty, 24 Iowa,
499; Loeschigk v. Bridge, 42 N. Y. 421; Sisson v. Roath, 80 Conn. 15;
Merchants’ Bank v. Newton, 7 C. EH Green, 58.

* Beals v. Guernsey, 8 Johns. 446; Waterbury v. Sturtevant, 18 Wend.
353 ; Bunyard v. Seabrook, 1 F. & F. 321.

* Lyon vy. Rood, 12 Vt. 238 ; vide Reinheimer v. Hemingway, 35 Penn,
482.

* Mills v. Howeth, 19 Tex. 257; Green v. Tantum, 4 C. E. Green, 105 ;
8.0, 6 C. E. Green, 364; Atwood v. Impson, 5 O. E. Green, 150; Jackson
v. Mather, 7 Cow. 801; Smith v. Henry, 2 Bailey, 118.

° Johnson y. Brandis, 1 Smith, 268; Wright v. Brandis, 1 Ind. 336.

" Humphries y, Freeman, 22 Tex.45; Farmer’s Bank v. Douglas, 11 8.
& M. 469; Foster v. Grigsby, 1 Bush, 86; Garrahay v. Bayley, 25 Tex.
(Supp.) 294 ; Contra, Seavy v. Dearborn, 19 N. H. 351; Brown v. Foree,
7 B. Mon. 857; Sterling v. Ripley, 3 Chand. 166.

* Smead vy. Williamson, 16 B. Mon. 492.
THE BONA FIDES OF THE TRANSFER. 233

evidence to prove that his intentions are known to her-
Notice before the payment of the purchase-money is
sufficient? If the intent is known it is not material
that the grantee is not apprised of the full extent of the
debtor’s fraudulent designs? Lllud certe sufficit etsi
unum seit creditorem fraudari, caeteros ignoravit, fore
locum actioni!

Motives OF DEBTOR AND GRANTEE NEED NOT BE.THE
saAME.—It is not necessary that the debtor and the grant-
ee shall be actuated by like motives to cheat and de-
fraud the grantor’s creditors. The motives and -inten-
tions of the debtor and grantee may be different. If
the grantee has notice at the time that the debtor is
transferring his property to delay, hinder, or defraud
his creditors, it will make the transfer void although he
has no wish to defraud them. If, for. instance, he pur-
chases because he considers the property cheap and this
is the only motive that induces him to purchase, the
transfer is nevertheless fraudulent.’ It has, however,
been held that if the grantee has a connection with the
property, and has reasons and motives for making the .
purchase entirely independent of the debtor’s motives
and purposes in wishing to sell, aud which are both
honest and adequate to every intent, and in exelusion
of any intent or willingness to lend himself in aid of the
debtor, the mere knowledge of the debtor’s intent and
purpose will not affect him as being a participant in the
debtor’s contemplated fraud, when he purchases for the
preservation and promotion of his own business interest.

 

1 Castro v. Ilies, 22 Tex. 479.

? Parkinson y. Hanna, 7 Blackf. 400; vide Parker v. Crittenden, 37
Conn. 148. ® Ruffing v. Tilton, 12 Ind. 259.

* Dig. lib. 42, tit. 9.

® Edgell v. Lowell, 4 Vt. 405 ; Fuller v. Sears, 5 Vt. 527.
2384 THE BONA FIDES OF THE TRANSFER.

The decision is placed upon the ground that such a pur-
chaser is not a mere volunteer It must be considered,
however, as going to the extreme verge of the law, and
nothing but the most pressing exigencies could bring a
case within this exception.

Co-opEration.—It is not necessary that the grantee
shall be one of the originators of the fraudulent scheme.
Fraud may be imputed toa party either by co-operation
in the original design or by constructive co-operation
from notice of it and from carrying the design into
operation with such notice. There is no difference be-
tween those who form the design and those who after-
wards enter into it with a knowledge of its character
and aid in carrying it out? The grantee is also bound
by the acts of his agent which he adopts.and confirms,’
and if they are fraudulent his own innocence will not
suffice to protect the transfer.

SALE To Pay DEBTS.—The notice to the grantee must
be a notice of an intent on the part of the debtor to de-
lay, hinder, or defraud in the legal sense of those terms
as used in the statute. The law, however, does not de-
prive even an insolvent man of the right to sell his prop-
erty to pay his debts. Where the necessary effect of
a transter is to secure the application of the full value
of the property to the discharge of certain debts of the
grantor in a manner satisfactory to the holders of those
debts, the case is not distinguishable from that of a con-
veyance to the creditors themselves in discharge of real

 

* Root v. Reynolds, 32 Vt. 139.

* Stovall v. Farmer’s Bank, 8 8. & M. 805.

* White v. Graves, 7 J. J. Marsh, 528; Wiley v. Knight, 27 Ala. 336 ;
Pope v. Pope, 40 Miss. 516.

“Wood y. Shaw, 29 Ill. 444.
THE BONA FIDES OF THE TRANSFER. 235

debts and at a fair price! The right to prefer involves
the right to sell with the intent to give a preference.
Fraud does not consist in transferring property with a
view to prefer one creditor to another, but in the intent
to prefer one’s self to all creditors. Although a trans-
fer is made with the intent to prevent the effect of a
suit, it is not necessarily fraudulent and void if made
also with intent to pay other creditors. A saleintended
to supply the means of paying just debts is not fraudu-
lent and void merely because it may also have been
intended as a means of preventing one creditor from
sacrificing the debtor’s property and thus defeating the
collection or payment of other debts. The intent to
delay certain creditors from the collection of their debts
by the due course of law will not necessarily vitiate the
sale, though known and so far concurred in by the vend-
ee. If it is made also with the intent and as the means
of paying other creditors or all creditors, and upon
terms reasonably calculated to answer that purpose in
a satisfactory manner and to the extent of the value of
the property, it can not be condemned merely because
it may have been intended by the vendor to obstruct
some of the creditors in the legal coercion of their debts,
although this intention may have been known to the

vendee.?
o

KNOWLEDGE OF INTENT TO DEFEAT AN EXEOUTION.
—If the grantee has reasonable grounds for supposing
that the debtor intends the transfer as a means to pay

 

? Ford v. Williams, 3 B. Mon. 550; Gregory v. Harrington, 33 Vt.
241; Brown y. Foree, 7 B. Mon. 357; Ocoee Bank v. Nelson, 1 Cold.
186 ; vide Cook v. White, 20 Cal. 598.

* Gregory v. Harrington, 838 Vt. 241; Bedell v. Chase, 34 N. Y.
386.

* Brown vy. Smith, 7 B, Mon. 361 ; Wood v. Shaw, 29 Tl. 444.
236 THH BONA FIDES OF THE TRANSFER.

some of his creditors, the mere knowledge that the
debtor also intends to baffle and defeat others does not
establish any notice of a fraudulent intent against him."
His knowledge of the debtor’s intent to defeat some of
his creditors affords, however, a presumption of a partic-
ipation in an intent to hinder, delay, or defraud them,
and will authorize the conclusion that he did so partici-
pate unless the inference is repelled by the circum-
stances of the transaction.? The question is as to his own
actual participation in a fraudulent scheme, and this is
a question of fact. Although it may be inferred from
his knowledge of the debtor’s intent to defeat some of
his creditors, yet as there may be and generally are
other and in different cases varying facts bearing upon
the question of participation, it is inconsistent with the
principles which regulate the investigation of mere
facts and the free inquiry after truth to make the grant-
ee’s knowledge of such intent on the part of the debtor
conclusive evidence of his participation in a fraudulent
intent. This would be to stop in the inquiry before its
real end is attained, to make a probable conclusion ab-
solutely decisive of the question. His knowledge of an
intent to defeat some creditors is a fact tending more or
less strongly to prove a fraudulent participation on his
part, but must be considered in connection with other
facts in the determination of his actual motive and the
true character of the transaction.*

VALIDITY AFFECTED BY DISPOSITION OF PROCEEDS.—
The payment of a full consideration and the appropri-
ation of it to the payment of creditors repel the pre-

 

? Brown y. Foree, 7 B. Mon. 357.

* Kendall v. Hughes, 7 B. Mon. 868; Brown y. Foree, 7 B. Mon.
357,

* Brown vy. Foree, 7 B. Mon. 357; Brown vy. Smith, 7 B. Mon. 361.
THH BONA FIDES OF THE TRANSFER, 237

sumption. Where a part only is so appropriated a
difficult point is presented, but if it can be fairly as-
sumed upon all the circumstances that, instead of ex-
pecting and intending that the price paid by him should
be withheld from creditors, the vendee expected it to be
paid to them, and did not make the purchase in order to
defraud them, he cannot be implicated in the fraud on the
ground that he knew of the vendor’s intent to thwart
some of his creditors, and made the purchase without
sufficiently guarding against a misapplication of the
price. It would be too great a restriction upon the
common business and traffic of men if every purchase.
from a debtor were to be conclusively invalidated be-
cause the proceeds are subsequently misapplied. When
a cloud, however, rests upon the disposition made by
the debtor of the money, the bona fides of the vendee
must be clearly shown.*’ A deed may be fraudulent
even though it provides upon its face for the payment
of all the debts due by the grantor,’ or the grantee ap-
plies the purchase money to pay creditors.®

GooD FAITH AFFECTED BY AMOUNT OF CONSIDERATION.
—It has been truly said that those who undertake to
impeach for mala fides a transfer which has been made
for a valuable consideration, have a task of great diffi-
culty to discharge,’ for the presumption is that it is fair

 

1 Kendall v. Hughes, 7 B. Mon. 368; Brown vy. Foree, 7 B. Mon, 357;
Johnson vy. McGrew, 11 Iowa, 151; Uhler v. Maulfair, 23 Penn, 481; York
County Bank v. Carter, 38 Penn. 446; vide Ashmead vy. Hean, 13 Penn.
584 ; Lowry v. Pinson, 2 Bailey, 324.

? Ford v. Williams, 3 B. Mon. 550.

® Brown v. Foree, 7 B. Mon. 857; Brown v. Smith, 7B. Mon. 361; vide
Clements v. Moore, 6 Wall, 299.

4 Stanton v. Green, 34 Miss. 576; Bastein v. Dougherty, 8 Phila. 30;
Alexander v. Todd, Bond, 175. * Drum vy. Painter, 27 Penn. 148.

° Farmer’s Bank v. Douglass, 11 8. & M. 469.

7 Harman y. Richards, 10 Hare, 81.
238 THE BONA FIDES OF THE TRANSFER.

and honest until the contrary is shown by evidence’
sufficient for that purpose? The participation in the
fraud may be shown by circumstances, without the pro-
duction of direct evidence,’ but the proof must be clear
and convincing.t The amount of the consideration paid
is material when the good faith of the transfer is put
in controversy. A small advance, merely to give color
to the transaction, is not sufficient ;> and, on the other
hand, the property may sell below what might have
been obtained by a careful sale. An inadequate con-
sideration, however, is a badge of fraud, and is not
sufficient to support a transfer whose good faith is other-
wise impeached.” If the transfer is in other respects
fair and legal, time may be allowed for the payment of
the purchase money,® but in such case it is the duty of
the vendee to show that it is afterwards paid, and that
the stipulation for credit was made in good faith.’

CoNVEYANCE TO USE OF GRANTOR.—It is enacted by 3
H. VII, ¢. 4, that all deeds of gift of goods and chattels,

 

? Sibly v. Hood, 8 Mo. 206; Wilson v. Lott, 5 Fla. 305.

? Glenn v. Grover, 3 Md. 212; s. c. 3 Md. Ch. 29.

5 Anderson v. Tydings, 3 Md. Ch. 167.

‘ Terrell v. Green, 11 Ala. 207,

° Michael v. Gay, 1 F. & F. 409; Monell v. Scherrick, 54 Il. 269.

,  ° Hale vy. Saloon Omnibus Co. 4 Drew, 492;8.c¢. 28 L. J. Ch. 777;
Stovall y. Farmer’s Bank, 8 8. & M. 806.

” Kaine v. Weigley, 22 Penn, 179; Trimble v. Ratcliff, 9 B. Mon. 511;
Robinson vy. Robards, 15 Mo. 459; Lee v. Hunter, 1 Paige, 519; Barrow v.
Bailey, 5 Fla. 9; Arnold v. Bell, 1 Hay. (N. C.) 896; Seaman v. White, 8
Ala, 656; State v. Evans, 88 Mo: 150; Durkee v. Mahoney, 1 Aik. 116;
Kuykendall v. Hitchcock, 15 Mo. 416; Bryant v. Kelton, 1 Tex. 415; Boz-
man v. Draughan, 3 Stew. 248; vide, Union Bank vy, Toomer, 2 Hill Ch.
27; Nunn y. Wilsmore, 8 T. R. 521; Grogan v. Cooke, 2 Ball. & B. 233;
Middlecome v. Marlow, 2 Atk. 519; Penhall v. Elwin, 1 Sm. & Gif. 258;
Blount v. Doughty, 3 Atk. 481; Thompson v. Webster, 7 Jur. (N. 8.) 581;
Copis v. Middleton, 2 Madd. 410; Wright v. Stannard, 2 Brock. 311.

® O'Neil v. Orr, 4 Scam. 1.

° Kaine vy. Weigley, 22 Penn. 179.
THE BONA FIDES OF THE TRANSFER. 239

made or to be made, of trust, to the use of that person
or persons that made the same deed of gift, be void
and of none effect. This statute is analogous to that of
27 H. VII, c. 10, in its purpose; but it goes further,
and makes the whole transfer void. It is not directed
against trusts made with a fraudulent intent, but against
trusts themselves. There is not one word about intent
or object, or purpose, or excluding, injuring or delaying
creditors. The effect of the trust is not a subject for
consideration. Its mere existence avoids the transfer
and destroys the title as against creditors existing or sub-
sequent. A conveyance by the owner of property to
another, in trust for himself, is, in effect, a conveyance
to himself, and such a measure can never be necessary
for any legal or honest purpose. He who, having the
full title, desires to retain the control and use of his
property and yet transfer it to another, can, in the
general course of human actions, have but one motive
for that measure, and that motive must be to defeat or
elude the claims of others. Hence all conveyances to
the use of the grantor are fraudulent and null against
creditors and others having just claims upon the grantor
or upon the property conveyed. In all the refinements
of uses and trusts, in the midst of multiplied distinc.
tions between legal and equitable interests which have
abounded in the progress of Anglican jurisprudence,
this principle has never been doubted, and the mockery
of a transfer by a debtor of his property, to be held for
the use of the debtor, has never been allowed to defeat
the rights or remedies of creditors.’

OxssEcT OF THE sTATUTE.—The true name of this
statute is, a statute of personal uses. Its object is to

 

? Curtis v. Leavitt, 15 N. Y. 9.
240 THE BONA FIDES OF THE TRANSFER.

render simply ineffectual purely nominal transfers of
personal estate where the entire use and control are, by
a declaration of trust in or out of the instrument, left
in him who makes the transfer. It is founded upon the
self-evident principle that a man’s property should pay
his debts, although he has vested a nominal title in
some other person. For that purpose the statute de-
clares the title to be in the debtor, and no transfer
which is merely nominal can stand in the way. It has
no reference to intentions, whether fraudulent or honest.
There may be, in fact, no creditors until long after the
transaction, but if the debtor has property they are
entitled to be paid. The simple inquiry is, whether the
property belongs to the debtor, not upon a theory of
fraud and against his conveyance, but upon a theory of
equitable title reserved to himself by the very conveyance
which transfers the legal and nominal title to another.’

Resvuttine trusts.—The statute, however, has no
application to cases of real and actual alienation upon
a valuable consideration and for active and real pur-
poses, although incidental benefits are reserved to the
grantor. It is the transfer to the use of the grantor
that is void, and not a transfer to other uses and for
other purposes. The distinction is between mere pas-
sive trusts for the grantor’s benefit, and those trusts
which result from alienation for real active purposes in
the course of business. Reservations for the benefit of
the grantor, in and of themselves, are perfectly innocuous.
A man proposing to create a security upon his estate, or
to assign it upon any trust, has a plain right in general
to reserve to himself just such interests and benefits
as he and those with whom he is dealing can agree

 

’ Curtis vy. Leavitt, 15 N.Y. 9; Sturdivant vy. Davis, 9 Ired. 365.
THE BONA FIDES OF THE TRANSFER. 241

upon. The law upon this subject is entirely adapted
to the dealings of mankind. In the business of every
trader exigencies will arise requiring a pledge, mort-
gage, or some other assurance less than an absolute sale,
founded upon some actual dealing the very nature of
which implies that some residuary or partial interest
remains. Such instruments must, in the very necessity
of things, take effect according to their terms, and the
law therefore gives them effect. If the only object of
the conveyance or assignment is to secure the payment
of a loan of money, or of an existing debt, and the
express reservation or resulting of the residuary bene-
ficial interest in the property is a necessary incident
of the conveyance in trust, and not one of its objects,
the rule does not apply. In all cases of a mortgage,
whether created in the form of a trust or otherwise,
the mortgagee acquires only a specific lien on the
property transferred, and the whole residuary interest
therein remains in or results, by implication of law,
to the grantor, and an express reservation of such
residuary interest being nothing more than what results
to the party by operation of law, will not vitiate the
assignment, for the mere expression of a trust where
the law implies one, if not expressed, cannot of itself
avoid a conveyance otherwise good.’ Hapressio corum
quae tacite insunt nthil operatur. Tt cannot be unlawful
to stipulate for that which the law provides. The ex-
pression of a trust, therefore, to restore the thing mort-
gaged or pledged to the mortgagor or pledgor, or to
return the surplus after the payment of the debt, is not
obnoxious to the statute unless it also appears that the
trust will operate to the prejudice and injury of credit-
ors. As the grantor may expressly provide for the

 

* Curtis vy. Leavitt, 15 N. Y. 9; Ravisies v. Alston, 5 Ala, 297; Haton v.
16
242, THE BONA FIDES OF THE TRANSFER.

trust which would result by operation of law, it follows
that he may in good faith direct that it shall be given

to another.! ,

WHAT BENEFITS MAY BE RESERVED.—There are open
trusts which may be reserved upon the face of the
deed,’ as, for instance, a life interest,’ or a purchase in
the joint names of the grantor and grantee.* In the
case of mortgages it is customary to stipulate that the
mortgagor shall have the control and benefit of the
estate until forfeiture.” A stipulation may also be in-
serted that the mortgagor may retain possession until
the mortgagee requires a sale.® A stipulation that the
grantee shall employ the debtor’s apprentices is merely
collateral, and does not vitiate the transaction.’ No

 

Perry, 29 Mo. 96; Leavitt v. Blatchford, 17 N. Y. 521; Dunham v. White-
head, 21 N. Y. 131; Kneeland v. Cowles, 4 Chand. 46; McClelland vy.
Remsen, 16 Barb. 622; s.c.14 Abb. Pr. 831; 8. c. 23 How. Pr. 175;
Phillips v. Zerbe Run Co, 25 Penn. 56; Johnson v. Cunningham, 1 Ala.
249; Pope v. Wilson, 7 Ala. 690; Malone v. Hamilton, Minor, 286; Howell
v. Bell, 29 Mo. 185; Brinley v. Spring, 7 Me. 241; Rahn v. McElrath, 6
Watts, 151; Burgin v. Burgin, 1 Ired. 453; Austin v. Johnson, 7 Humph.
191; Tunnell v. Jefferson, 5 Harring. 206; Stanley v. Robins, 36 Vt.
422; Godchaux v. Mulford, 26 Cal. 316; Bartels v. Harris, 4 Me. 146;
Hindman v. Dill, 11 Ala. 689; Leitch y. Hollister, 4 N. Y. 211; Van
Buskirk vy. Warren, 39 N. Y. 119; 8.c, 34 Barb. 457; 8. c. 138 Abb. Pr. 145;
Stevens v. Bell, 6 Mass. 389; Smyth v. Ripley, 33 Conn. 306; Valance
v. Miners’ Ins. Co. 42 Penn. 441; vide Wilson v. Cheshire, 1 McCord Ch. 233.

? Green v. Tanner, 8 Met. 411.

2 Low v. Carter, 21 N. H. 433.

* Lott v. De Graffenried, 10 Rich. Eq. 346; Adams vy. Broughton, 13
Ala, 731.

* Christ’s Hospital vy. Budgin, 2 Vern. 688; Kingdom v. Bridges, 2
Vern. 67.

* Graham v. Lockhart, 8 Ala. 9; Wilson v. Russell, 18 Md. 494,

° Dubose v. Dubose, 7 Ala, 235; Brock vy. Headen, 13 Ala. 870; Mar-
riott v. Givens, 8 Ala. 694.

7 Faunce y. Lesley, 6 Penn. 121.
THE BONA FIDES OF THE TRANSFER. 243

man, however, is allowed to make a conveyance re-
serving the profits and income to himself for life, with
a power to direct what. disposition shall be made of the
property after his death. He cannot be the equitable
owner of property and still have it exempt from his
debts."

Sxoret trusts.—No conveyance is deemed bona fide
within the proviso which is accompanied with any
secret trust.? For instance, if a man is indebted to five
several persons in the several sum of £20, and has goods of
the value of £20, and makes a conveyance of all his goods
to one of them, in satisfaction of his debt, but there is
a trust that he shall deal favorably with him in regard
to his poor estate, either to permit the grantor or some
other for him, or for his benefit, to use or have posses-
sion of them, and is contented that he shall pay him his
debt when he is able, this is not bona fide within the
proviso. The secret trust which is illustrated by this
example, is manifestly a trust which makes the transfer
merely colorable. If the transfer is intended in good
faith to have operation in favor of the grantee, and to
confer upon him a right to be exercised at his pleasure
over the property, it will be valid; but if it is a mere
sham, executed colorably, and only for the purpose of
protecting the debtor, and without any real intention to
convey the property to the grantee, it is void.*

 

* Mackarson’s Appeal, 42 Penn. 330 ; Coolidge v. Melvin, 42 N. H.
510; Brinton vy. Hook, 3 Md. Ch. 477; Ford v. Caldwell, 3 Hill, (3. C.)
248; Hunters v. Waite, 3 Gratt. 26; Watts v. Thomas, 2 P. Wms. 364.

? Twyne’s Case, 3 Co. 80.

* Twyne’s Case, 3 Co. 80.

4 Eveleigh v. Purrsford, 2 Mood. & Rob. 539; Sydnor v. Gee, 4 Leigh,
585; Coburn v. Pickering, 3 N. H. 415; Beers v. Botsford, 13 Conn. 146;
Michael v. Gay, 1 F.& F. 409; Claytor v. Anthony, 6 Rand. 285; New
Eng. Ins. Co. v. Chandler, 16 Mass. 275; Rea v. Alexander, 5 Ired. 644,
244 THE BONA FIDES OF THE TRANSFER.

Cortuston.— Where it is made to appedr that, not-
withstanding the transfer, the debtor is to have the real
use and beneficial ownership of the property, it is
deemed that the transfer is not real, but is intended as
a cover for the property to the ease and favor of the
debtor, either generally or for some definite time.* So,
also, if there is any collusion for the benefit of the
debtor the transfer is void. A note given as a fictitious
consideration,’ or secretly as a part of the consideration,
so that the debtor may control it for his own use,’ is a
fraud upon the creditors, and renders the transaction
covinous.

Purocuaser’s Bounty.—It is not, however, every
benefit conferred upon a debtor that renders a transfer
fraudulent, but only such as are given in prejudice of
the legal rights of creditors. Strict and inexorable as
the law is upon the subject of frauds, it does not require
that a purchaser shall either ignore or abrogate the im-
pulses of natural affection, or of sympathy towards the
unfortunate. If the transfer is valid, and in good faith,
there is no principle of the common law, or construction
of the statute, which prevents the grantee from aiding
the debtor or his family,‘ or disposing of his own as he
pleases.

TRANSFER MUST BE UNCONDITIONAL.—The contract by

 

‘ Leadman vy. Harris, 3 Dey. 144; Sturdivant v. Davis, 9 Ired. 365;
Grant v. Lewis, 14 Wis. 487.

2 Rea v. Alexander, 5 Ired. 644,

® Platt v. Brown, 16 Pick. 553; Pettibone v. Stevens, 15 Conn. 19.

“ Dallam v. Renshaw, 26 Mo. 533; Pinkston v. McLemore, 31 Ala. 308;
Compton vy. Perry, 23 Tex. 414; Ocoee Bank y. Nelson, 1 Cold. 186;
Bumpas v. Dotson, 7 Humph. 310; Stuck v. Mackey, 4 W. & S. 196;
Cureton v. Doby, 10 Rich. Eq. 411; Webb v. Roff, 9 Ohio St. R. 430;
Young v. Dumas, 39 Ala. 60; Kilby v. Haggin, 3 J.J. Marsh. 208; Young v.
Stallings, 5 B. Mon, 807.
THER BONA FIDES OF THE TRANSFER. 245

which an insolvent debtor parts with his property must be
absolute and unconditional. Consequently, if he retains
the right to revoke the contract, and resume the owner-
ship of the property, the power is inconsistent with a
fair, honest, and absolute transfer, and renders it fraudu-
lent and void <A stipulation that the vendee may
return the property whenever he chooses, and annul the
contract before the purchase money is paid, is, for the
same reason, fraudulent. It is not an unconditional
sale, and does not vest the title absolutely in any one
for a good consideration? A mere parol agreement
that the debtor may repurchase the property whenever
he becomes able will not, however, vitiate the transfer,
if no substantial interest is thereby reserved.*

RIGHT oF POSSESSION AS A CONSIDERATION.—A full
consideration may be given in such a form as to defeat
creditors, and thus render a transfer void* The law,
for instance, will not permit a debtor in failing circum-
stances to sell his property, convey it by deed without
any reservation, and yet secretly reserve to himself the
right to possess and occupy it for a limited time for his
own benefit. Such a transfer lacks the element of good
faith, for, while it professes to be an absolute conveyance
upon its face, there is a concealed agreement between
the parties to it inconsistent with its terms, securing a

 

1 West v. Snodgrass, 17 Ala. 549; Bethel v. Stanhope, Cro. Eliz. 810;
Anon. Dyer, 295, a; Rex v. Nottingham, Lane, 42; Tarback v. Marbury,
2 Vern. 510; Peacock v. Monk, 1 Ves. Sr. 127; Jenkyn v. Vaughan, 3
Drew, 419; Rock y. Dade, May on Fraud, 519; vide, Sagitary v. Hide, 2
Vern. 44,

2 Shannon y. Commonwealth, 8 8. & R. 444; West v. Snodgrass, 17
Ala, 549. .

° Towle v. Hoit, 14 N. H. 61; Albee v. Webster, 16 N. H.362: New-
som v. Roles, 1 Ired. 179; Glenn v. Randall; 2 Md. Ch. 220; Anderson
vy. Fuller, 1 McMullan Ch. 27; Barr v. Hatch, 3 Ohio, 527,

‘ Bott v. Smith, 21 Beay. 611.

’
246 THE BONA FIDES OF THE TRANSFER.

benefit to the grantor at the expense of those he owes.
A trust thus secretly created, whether so intended or
not, is a fraud on creditors, because it places beyond
their reach a valuable right, and gives to the debtor the
beneficial enjoyment of what rightfully belongs to his
creditors! So, also, in the reservation of a right to re-
purchase by parol, if there is a reservation of a substan-
tial interest, it will defeat the transfer.’

Support or DEBToR.—An agreement to support the
debtor or his family is a valuable consideration, but is
not sufficient to uphold a transfer when the grantor is
insolvent.? The transaction is equally fraudulent if
enough is not left for the payment of the grantor’s
debts. It is, in effect, a transfer to the use of the
grantor, which is always void.’ The gist of the objec-
tion consists, not in the amount to be paid in future
support, but in the fact that the promise of future
support forms part of the consideration as an induce-
ment to the transfer. When it is shown that the present

 

* Lukins y. Aird, 6 Wall. 78; vide Oriental Bank v. Haskins, 3 Met.
332; St. John v. Camp, 17 Conn. 222.

? Towle v. Hoitt, 14 N. H. 61; Albee v. Webster, 16 N. H. 362.

8 Albee v. Webster, 16 N. H. 362; Church v. Chapin, 35 Vt. 223;
Gunn y. Butler, 18 Pick. 248; Geiger v. Welsh, 1 Rawle, 349; Jackson
v. Parker, 9 Cow. 73; Robinson v. Stewart, 10 N. Y. 189; Smith v.
Smith; 11 N. H. 459; Russell v. Hammond, 1 Atk. 13; Stokes v. Jones,
18 Ala, 734; Sturdivant v. Davis, 9 Ired. 865; Crane v. Stickles, 15 Vt.
253; Bott v. Smith, 21 Beav. 511; Morrison y. Morrison, 49 N. H. 69 ;
Rollins v. Mooers, 25 Me, 192; Webster v. Withey, 25 Me. 326; Johnston.
vy. Harvey, 2 Penn. 82; Stanley v. Robbins, 36 Vt. 422; Miner v. Warner,
2 Phila. 124; s.c. 2 Grant, 448 ; Hawkins v. Moffatt, 10 B. Mon. 81; Hen-
derson v. Downing, 24 Miss. 106; Robinson v. Robards, 15 Mo. 459 ; Knox
v. Hunt, 34 Miss. 655; McLean v. Button, 19 Barb. 450; Coolidge v. Melvin,
42 N. H. 510.

* Crane v. Stickles, 15 Vt. 252; Jones v. Spear, 21 Vt. 426; Tyner v.
Sommerville, 1 Smith, 149.

° Cadogan v. Kennett, Cowp. 432; Anon. Dyer, 295, a; Adams vy.
Adams, 1 Dane Ab, 636.
THE BONA FIDES OF THE TRANSFER. 247

consideration is inadequate to satisfy his debts, what-
ever may be the amount secured to the debtor, the law,
instead of entering upon the task of determining what
part of the consideration is in money or other property,
and what part is agreed to be paid in future support of
the grantor, and holding the grantee responsible to
creditors for the latter sum treats the conveyance as a
nullity as between the grantee and the creditors, and
holds the property liable for their claims." Evidence
may, however, be given to show that the grantee paid
the full value for the property, and that the reservation
of a right to future support is of no value to creditors,
for they cannot complain if the grantee assumes burdens
which are not to their prejudice.” An agreement under
the same circumstances may also be made to employ
the grantor.’

SUPPORT BY SOLVENT PERSON.—If the grantor is free
from debt,’ or retains property amply sufficient for the
payment of all his debts,’ he has a right to contract for
his future support for a longer or shorter period, accord-
ingly as he may deem best, for the owner of property
can dispose of it as he thinks proper, if he does no
wrong to his creditors.

 

1 Sidensparker v. Sidensparker, 52 Me. 481.

? Slater v. Dudley, 18 Pick. 873; Albee v. Webster, 16 N. H. 362.

® Griffin v. Cranston, 10 Bosw. 1; 8. c. 1 Bosw. 281.

4 Buchanan y. Clark, 28 Vt. 799; Mills v. Mills, 3 Head, 705 ; Mahony
y. Hunter, 30 Ind. 246; Usher v. Hazeltine, 5 Me. 471; Tibhals v. Jacobs,
31 Conn. 428,

* Hapgood v. Fisher, 34 Me. 407; Drum v. Painter, 27 Penn. 148;
Johnston vy. Zane, J1 Gratt. 552; Eaton v. Perry, 29 Mo. 96; Barrow v.
Bailey, 5 Fla. 9; Wooten v. Clark, 23 Miss. 75; Parker v. Nichols, 7 Pick,
111; Johnson v. Johnson, 3 Met. 63.
CHAPTER IX.

CONSIDERATION

WHAT Is A GOOD CONSIDERATION.—An inquiry into
the consideration upon which a transfer is founded some-
times becomes important because there are circumstances
under which a debtor is not permitted to give away his
property, and, also, because only those who give a good
consideration are protected when there is a fraudulent
intent on the part of the grantor. The statute protects
all estates and interests which are conveyed on a good
consideration, and bona fide, but inasmuch as others may
lose their debts, which are things of value, the intent of
the act is that the consideration shall be valuable, for
equity requires that a transfer which defeats others shall
be made on as high and good consideration as the things
which are thereby defeated are Good consideration,
therefore, is construed to mean a valuable consideration,

as between creditors and others claiming under the
debtor.!

WHEN A TRANSFER Is voLuUNTARY.—A voluntary
conveyance is a transfer without any valuable consider-
ation. In determining whether a transfer is voluntary,
the adequacy of the consideration does not enter into
the question. The character of purchase or voluntary

 

1Twyne’s Case, 8 Co. 80; Cunningham y. Dwyer, 23 Md. 219; Kil-
lough yv. Steele, 1 Stew. & Port. 262; Taylor v. Jones, 2 Atk. 600; Part-
ridge v. Gopp, 1 Eden, 168; 8, c. Ambl. 596; Thomson y. Dougherty, 12
8. & R. 448.
CONSIDERATION. 249

is determined by the fact whether anything valuable
passes between the parties.! Asa general rule a transfer
is voluntary when it is founded upon a consideration
which the law does not recognize as valuable, or is made
in pursuance of an agreement which cannot be en-
forced, for where there is no remedy there is no right?
An illegal consideration is, in contemplation of law, no
consideration, and is not therefore sufficient to support
a transfer as against creditors.’ A parol agreement to
make a gift does not vest any right in the donee, either
legal or equitable, for it cannot be enforced; conse-
quently a transfer in pursuance of such an agreement
only takes effect, as against creditors, from the time
when the transferis actually made.‘ But if a voluntary
deed is executed at a time when the grantor has no in-
terest, and he subsequently acquires an interest, the
transfer takes effect from the date of the deed® A
transfer which the law would compel a party to make
is not voluntary.®

STATUTORY DEFENCE MAY BE WAIVED.—To the prop-
osition that a conveyance in pursuance or in considera-
tion of an agreement which cannot be enforced is volun-
tary there is one exception. Wherever there is a moral
obligation, which cannot be enforced on account of the
provisions of a statute, there the party may waive the
benefit of the statute, and the transfer will be valid as

 

* Jackson y. Peek, 4 Wend. 300; Shontzv. Brown, 27 Penn. 123; Wash-
band v. Washband, 27 Conn. 424.

® Spurgeon v. Collier, 1 Eden. 55; Planck v. Schermerhorn, 3 Barb. Ch.
644; Penhall v. Elwin, 1 Sm. & Gif. 258; Goldsmith v. Russell, 5 D. M.
& G. 547.

3 Weeks v. Hill, 838 N. H. 199; Jose v. Hewitt, 50 Me. 248 ; Weeden v.
Bright, 3 W. Va. 548.

4 Rucker vy. Abell, 8 B. Mon. 566 ; Davis v. McKinney, 5 Ala. 719; Hoye
v. Penn, 1 Bland, 28; Worthington v. Bullitt, 6 Md. 172.

* Bonny v. Griffith, Hayes, 115. ° Buie v. Kelly, 5 Ired. 169.
250 CONSIDERATION.

against creditors. Thus a debt which is barred by the
statute of limitations, or a discharge in bankruptcy,’ is a
good consideration for a conveyance. The statute of
frauds is a defence which the debtor may waive, and if
he does so by executing the conveyance, it will be valid.’
When a parol partition has been made of land, and each
party has carried it out by taking possession of the
part allotted to him, a deed may subsequently be made
in pursuance of it. The moral obligation resting upon
the grantee holding under a fraudulent transfer is suffi-
cient to support a reconveyance against his creditors.°
Property which has been conveyed to a party, to give
him the necessary qualification to hold an office, may be
reconveyed.® A transfer in consideration of a parol
antenuptial contract is not within the foregoing ex-
ception, and is merely voluntary.’ A debt which has
been discharged by the voluntary release of the creditor
is not a good consideration as against other creditors.®
The law thus makes a distinction between a release by a
statute and a release by the voluntary act of the party.

 

? Sayre v. Fredericks, 1 C.E. Green, 205; Keen v. Kleckner, 42 Penn.
529; Updike v. Titus, 2 Beasley, 151; vide Crawford v. Carper, 4 W.
Va. 56.

? Wilson v. Russell, 138 Md. 494.

° Livermore vy. Northrop, 44 N. Y. 107; Dygert v. Remerschnider, 82
N. Y. 629; 8. c. 39 Barb, 417; Sackett v. Spencer, 65 Penn. 89; Gibson v.
Walker, 11 Ired. 827 ; vide Smith v. Lane, 3 Pick. 205,

* Bilsborrow v. Titus, 15 How. Pr. 95.

° Clark v. Rucker, 7 B. Mon. 583 ; Davis v. Graves, 29 Barb. 480; con-
tra, Chapin v. Pease, 10 Conn. 69.

° Jackson v. Ham, 15 Johns. 261; Roberts v. Gibson, 6 H. & J. 116.

" Warden y. Jones, 2D. G. & J. 76; 8.c.17 L. J. (Ch.) 190; Dundas
v. Dutens, 2 Cox. 235; 8. c. 1 Ves. Jr. 196; Spurgeon vy. Collier, 1 Eden.
55; Murphy v. Abraham, 15 Ir. Eq. (N.8.) 871; Reade v. Livingston, 3
Johns. Ch. 481; Randall v. Morgan, 12 Ves. 67; Smith v. Greer, 3 Humph.
118; Hayes v. Jones, 2 Pat. & H. 583; Andrews v. Jones, 10 Ala. 400;
Wood v. Savage, 2 Doug. (Mich.) 316.

* King v. Moore, 18 Pick. 376; Nightingale y. Harris, 6 R. I. 321.
CONSIDERATION. 251

An objection to receiving parol evidence can not arise
when the party bound by the agreement has acted on
it in good faith.

WHEN CONSIDERATION MAY BE PAID.—The consider-
ation must arise at the time of the transfer.? It is not,
however, necessary that an actual payment shall be made.
A promise to pay, or the giving of securities will consti-
tute a party a purchaser.® A check given in good faith
on a banker having funds to pay it is prima facie
payment if accepted as cash, although its payment is
subsequently suspended on account of a controversy
concerning the property. A transfer may be made for
an annuity as well as for money in hand.’ An existing
debt or liability, either as indorser’ or surety* is suff-

 

1 Jones v. Ruffin, 3 Dev. 404,

? Starr v. Starr, 1 Ohio, 321.

* Seward v. Jackson, 8 Cow. 406; Shontz v. Brown, 27 Penn. 123;
Pattison v. Stewart, 6W. & 8. 74; Stafford v. Stafford, 27 Penn. 144;
Starr v. Strong, 2 Sandf. Ch. 139.

* Woodville v. Reed, 26 Md. 179.

* Union Bank v. Toomer, 2 Hill. Ch. 27.

* Holbird v. Anderson, 5 T. R. 2385; Loeschigk v. Hatfield, 5 Robt. 26;
Gleason v. Day, 9 Wis. 498 ; Seymour v. Wilson, 19 N. Y. 417; Adams v.
Wheeler, 10 Pick. 199; Gibson v. Seymour, 4 Vt. 518; Seymour v. Briggs,
11 Wis. 196 ; McMahan v. Morrison, 16 Ind. 172; Towsley v. McDonald,
32 Barb. 604; Wilson v. Ayer, 7 Me. 207; vide Harney v. Pack, 4 8. & M.
229; Pope v. Pope, 40 Miss. 516.

7 Jewett v. Warren, 12 Mass. 300; Newman v. Bagley, 16 Pick. 570;
Buffum v. Green, 5 N. H. 71; Bartels v. Harris, 4 Me. 146; Prescott v.
Hayes, 43 N. H. 593; Hendricks v. Robinson, 2 Johns. 283; s.c. 17 Wend.
438; Griffith v. Bank, 6 G. & J. 424; Bank v. McDade, 4 Port. 252;
McLaren v. Thompson, 40 Me, 284; Stevens v. Hinckley, 43 Me. 440;
Boswell v. Green, 1 Dutch. 390; Lindle v. Neville, 13 8. & R. 227; St. John
vy. Camp, 17 Conn. 222.

® Fling v. Goodall, 40 N. H. 208; Ferguson v. Furnace Co. 9 Wend.
345; Gorham v. Herrick, 2 Me. 87; Stedman v. Vickery, 42 Me. 182; Hop-
kins v. Scott, 20 Ala. 179; Leggett v. Humphreys, 21 How. 63; Miller v.
Howry, 3 Penn. 874; Gibson vy. Seymour, 4 Vt. 518; Pennington v.
Woodall, 17 Ala. 685; Tunnell v. Jefferson, 5 Harring. 206.
252 CONSIDERATION.

cient. The debt may also be unliquidated.’ If a father
takes a note at the time of making an advance to his
son, he retains the control of the money, and a transfer
in consideration of it is valid, although he may not
have intended under certain circumstances to enforce
payment? A person who is entering into a bond as
surety, for the faithful performance by an officer of his
public duties, may provide for his counter security; for
there is a contract at the time to repay to the surety
any money the latter may be compelled to pay for the
principal, and the performance of this may be ensured
by security taken either before or after default.’

Nor MERELY GOOD BETWEEN THE PARTIES.—The con-
sideration must be valuable, and not such as is merely
good between the parties,* but a mortgage to secure the
debt of another is not voluntary.’ A voluntary bond
is not a good consideration as against creditors,’ but if
_ it is due, or the instalments payable thereon are in
arrear, then the sum so due can be enforced at law, and
is a good consideration for a conveyance made in good
faith". Interest which cannot be collected at law is not

 

? Dewey v. Littlejohn, 2 Ired. Eg, 495; vide Adams v. Adams, 1 Dane
Ab. 636.

? Arnold v. Arnold, 8 B. Mon. 202.

5 Dewey v. Littlejohn, 2 Ired. Eq. 495.

4 Seymour v. Wilson, 19 N. Y. 417; vide Garretson v. Kane, 3 Dutch.
208.

® Marden v. Babcock, 2 Met. 99.

* Hawkins v. Allston, 4 Ired. Eq. 1387; McGill v. Harman, 2 Jones Eq.
179; Stiles v. Att-Gen. 2 Atk. 152; Gilham v. Locke, 9 Ves. 612;
Stephens v. Harris, 6 Ired. Eq. 57; Craig v. Root, Cas temp, Talb. 153;
Jones v. Powell, 1 Eq. Cas. Abr. 84; Lechnere y. Earl, 3 P. Wms. 211.

” Stiles v. Att.-Gen. 2 Atk. 1652; Gilham v. Locke, 9 Ves. 612; Tanner
vy. Byne, 1 Sim. 160; Berry, Ee parte, 19 Ves. 218; Hopkirk v. Randolph,
2 Brock. 132; Welles v. Cole, 6 Gratt. 645; Contra, Bank v. Mitchell,
Rice. Ch. 889.
CONSIDERATION, 253

a good consideration,' but there are many transactions
in which interest is habitually charged and paid when
it could not be claimed on the ground of strict legal
right, and, as they are considered as fair and just be-
tween the parties, they are good as to others.?

VALUABLE CONSIDERATIONS.—The note of a minor is a
good consideration, for there is no legal bar to his right to
purchase property upon credit, and neither the vendor nor
his creditors can avoid or impeach the transfer or question
its validity upon the ground of his minority A second
Judgment may be taken for a prior judgment without re-
easing or satisfying the latter,‘ for a creditor may take
as many successive judgments for his first as the debtor
is willing to give, and each will be good and available
until the debt, interest, and costs are paid. An abso-
lute deed intended as a mortgage may be changed by
the parties into a mortgage, and a judgment confessed
for the debt. A promise to pay specific debts whether
by parol or in writing is a valuable consideration,’ but
when the debts are also incumbrances on the property
the purchaser must agree to protect the debtor and the
rest of his property from them, and not merely take the
property subject to the incumbrances.’

 

* Whittacre y. Fuller, 5 Minn. 608; McKenty v. Gladwin, 10 Cal. 227;
Scales v. Scott, 13 Cal. 76.

? Spencer v, Ayrault, 10 N. Y. 202.

* Matthews v. Rice, 31 N. Y. 457; Washband v. Washband, 27 Conn.
424; vide McCorkle v. Hammond, 2 Jones, (N. C.) 444; Winchester v.
Reid, 8 Jones, (N. C.) 377. °

‘ Smith’s Appeal, 2 Penn. 331. ° Cox v. McBee, 1 Spears, 195.

° Shontz v. Brown, 27 Penn. 123; Jenkins v. Peace, 1 Jones, (N. C.)
413; Stevens v. Hinckley, 43 Me. 440; Gunn v. Butler, 18 Pick. 248;
Pattison v. Stewart, 6 W. & 8.72; Meade v. Smith, 16 Conn. 356 ; Ander-
son v. Smith, 5 Blackf 395; Seaman yv. Hasbrouck, 85 Barb. 151; Keen
v. Kleckner, 42 Penn. 529; Bell v. Greenwood, 21/ Ark. 249; Preston v.
Jones, 50 Penn. 64; Vanmeter v. Vanmeter, 3 Gratt. 148.

7U. 8. v. Mertz, 2 Watts, 406.
254 CONSIDERATION.

RELEASE OF EQUITY OF REDEMPTION.—A conveyance
of the equity of redemption by a mortgagor to a
mortgagee without the payment of any new considera-
tion is not a voluntary conveyance, and void as against
creditors, when the amount due on the note or other
obligation the payment of which is secured by the
mortgage is equal to the whole value of the mortgaged
premises. By operation of law and without any special
agreement of the parties on the subject, it effects a
discharge of the mortgage debt, either wholly if the
estate is sufficient, or pro rata if of less value than the
amount due. To make such a transaction a voluntary
conveyance as against creditors, the estate must be of
greater value than the debt.’

DAMAGES FOR UNLAWFUL MARRIAGE.—If a woman in
contemplation of marriage conveys property to her in-
tended husband and the marriage is void, the failure of
the consideration constitutes a sufficient consideration
for a re-conveyance.* As she can also maintain an action
at law for the deceit by which she was led into such a
marriage, the damages inflicted upon her constitute a
valuable consideration for a transfer of his property to
her. Indemnity to a woman against the consequences
of an illicit intercourse is also a good consideration
within the statute,’ but a transfer which looks to future
cohabitation is illegal and void as against creditors.®

 

* Williams v. Robbins, 15 Gray, 590; Credle v. Carrawan, 64 N. C.
422.

° Forbush v. Willard, 16 Pick, 42,

* Fellows v. Emperor, 18 Barb. 92; Hutchinson v. Horn, 1 Smith, 242;
Lady Cox’s case, 3 P. Wms, 389; vide Gilham y. Locke, 9 Ves. 612.

* Wait v. Day, 4 Denio, 439; Gray v. Mathias, 5 Ves. 286.

* Wait v. Day, 4 Denio. 439; Sherman v. Barrett, 1 McMullen, 147;
Hargroves v. Meray, 2 Hill Ch. 222; Lady Cox’s case, 3 P. Wms. 389;
Gray v. Mathias, 5 Ves. 286.
CONSIDERATION. 255

If a transfer, however, is made for a valuable con-
sideration at the time it can not be vitiated by a subse-
quent cohabitation with the debtor any more than by
cohabitation with any other person, unless such subse-
quent cohabitation entered into the consideration of the
transfer.’ A transfer as a mere gratuity to a paramour
or for her to hold for the benefit of the grantor, or a
purchase made in her name for the purpose of facilita-
ting future illicit intercourse is not founded upon a
good consideration within the meaning of the statute.’
A claim of damages for seduction is a valuable con-
sideration.*

FirM PROPERTY TO PAY INDIVIDUAL DEBTS.—A firm
is in law distinct from the members who compose it,
and a transfer of the firm property to pay the separate
debts of one of the partners is a voluntary conveyance.‘
A previous division of the property when the firm is
insolvent will not make any difference, for there is then
nothing to divide.” A debt contracted in the name of
one of the partners may, however, be shown to have
been for the benefit of the firm, and will then constitute
a good consideration.’ If the firm is insolvent, a sepa-
rate creditor can not be injured by a transfer of one
partner’s interest in the partnership property to his co-

 

? Fellows v. Emperor, 13 Barb. 92.

2 Wait v. Day, 4 Denio, 439.

* Carlisle v. Gaskill, 4 Ind. 219.

4 Burtus v. Tisdall, 4 Barb. 571; Anderson v. Maltby, 2 Ves. Jr. 244;
Elliot v. Stevens, 88 N. H. 811; Ferson y. Monroe, 21 N. H. 462; Geort-
ner v. Canajoharie, 2 Barb. 625; Dart v. Farmer’s Bank, 27 Barb. 387 ;
Walsh v. Kelly, 42 Barb. 98; 8. o. 27 How Pr. 359; Wilson v. Robertson,
21 N. Y. 587; Contra, Sigler v. Bank, 8 Ohio St. R. 511; National Bank
vy. Sprague, 5 C. E. Green, 13; Schaeffer v. Fithian, 17 Ind. 463; Arm-
strong v. Fahnestock, 19 Md. 58.

° Burtus v. Tisdall, 4 Barb, 571.

° Siegel v. Chidsey, 28 Penn, 279; Gwin vy. Selby, 5 Ohio St, R, 96,
' 956 CONSIDERATION.

partner in consideration of the grantee’s assuming the
liabilities of the firm.1 As each partner is personally
liable for the payment of the partnership liabilities, a
transfer of his separate property in consideration of a
debt due by the firm is founded upon a good considera.
tion.?, Money loaned to a stockholder may be shown to
have been used for the benefit of the corporation, and is
a good consideration for a transfer made by the latter to
the creditor.®

Forurre apvancrs.—A transfer may be made in
good faith to secure indorsements* or future advances.”
The mere fact that such transfer may afford an oppor-

 

* Griffin v. Cranston, 10 Bosw. 1; 8. c. 1 Bosw. 281.

* Stewart v. Slater, 6 Duer, 83.

° Head vy. Horn, 18 Cal, 211.

* Gardner vy. Webber, 17 Pick. 407; Calkins v. Lockwood, 16 Conn.
276; U. 8. v. Hooe, 8 Cranch, 73 ; Goddard v. Sawyer, 9 Allen, 78;
Worseley v. De Mattos, 1 Burr, 467.

° Doyle v. Smith, 1 Cold. 15; Cole v. Albers, 1 Gill, 412; Hendricks v.
Robinson, 2 Johns, 288 ; 8. c. 17 Johns. 488; Craig v. Tappin, 2 Sandf.
Ch. 78; Townsend v. Empire Co. 6 Duer. 208 ; Lansing v. Woodworth, 1
Sandf. Ch. 43; Bank of Utica vy. Finch, 3 Barb. Ch. 298; Carpenter v.
Blote, 1 E. D. Smith, 491; U. 8. v. Hooe, 3 Cranch, 78 ; Shirras v. Craig, 7
Cranch, 34; Lawrence v. Tucker, 28 How. 14; Foster v. Reynolds, 38 Mo.
553; Allen v. Montgomery, R. R. Co. 11 Ala. 437; Coles y. Sellers, 1
Phila. 533; Crane v. Deming, 7 Conn. 387; Hubbard v. Savage, 8 Conn.
215; Commercial Bank yv. Cunningham, 24 Pick. 270; Wescott v. Gunn, 4
Duer, 107; McDaniels v. Colvin, 16 Vt. 300; Collins v. Carlisle, 18 Ill.
254; Seaman v. Fleming, 7 Rich. Eq. 283; Bell v. Fleming, 1 Beasley. 18,
496; Griffin v. N. J. Co. 8 Stock. 49; Bamard vy. Moore, 8 Allen, 273;
Speer v. Skinner, 35 Ill. 282; Adams v. Wheeler, 10 Pick. 199; Badlam
v. Tucker, 1 Pick. 398 ; Wilder v. Winne, 6 Cow. 284; Smyth v. Ripley,
33 Conn. 806; McGavock v. Deery, 1 Cold. 265; U. 8. v. Lennox, 2 Paine,
180; Wilson v. Russell, 18 Md. 494; Irwin y. Wilson, 8 Jones Eq. 210;
D’Wolf vy. Harris, 4 Mason, 515; Blood v. Palmer, 11 Me. 414; Miller v.
Lockwood, 32 N. Y. 293; Atkinson v. Maling, 2 T. R. 462; Googins v.
Gilmore, 47 Me. 9; Holbrook v. Baker, 5 Me. 809; Griffin vy. Stoddard, 12
Ala, 783 ; vide Bank vy. Willard. 10 N. H. 210.
CONSIDERATION. 257

tunity for a fraudulent collusion is not a valid objection’,
for its validity depends upon the attending circum-
stances. A mortgage to secure future advances should
indicate the extent of the lien with certainty,? but no
certain sum need be named.* It may be taken for an
absolute sum.* A judgment may also be taken to secure
future advances.

SERVICES BETWEEN MEMBERS OF THE SAME FAMILY.—
The law implies no promise to pay for services rendered
by members of a family to each other, whether by chil-
dren, parents, grandparents, brothers, stepchildren, or
other relations. The rule rests upon the simple reason
that such services are not performed in the expectation
or upon the faith of receiving pecuniary compensation.
The services rendered in such cases are mutual, and it
may often be difficult to decide upon which party the
principal benefit is conferred. Services so rendered
do not, therefore, constitute a valuable consideration
for a transfer.’ A claim for board when a child resides
with his parents after his majority, rests upon the
same principle". Asa parent is entitled to the earn.

 

* Wilson v. Russell, 18 Md. 494; U.S. v. Hooe, 3 Cranch, 73.

* Truscott v. King, 6 N. ¥.147; Younge v. Wilson, 24 Barb. 510; Craig
v. Tappin, 2 Sandf. Ch. 78; Divver v. McLaughlin, 2 Wend. 596.

® Robinson vy. Williams, 22 N. Y. 380.

* Miller v. Lockwood, 32 N. Y. 293; Shirras v. Craig, 7 Cranch, 34;
Bevins v. Dunham, 1 Spears, 39; Tully v. Harloe, 35 Cal. 302; Summers
v. Roos, 43 Miss. 749; Contra, Peacock v. Tompkins, Meigs, 317; Neuffer
vy. Pardue, 3 Sneed. 191.

* Brinkerhoff vy. Marvin, 5 John’s Ch. 320; Lansing v. Woodworth, 1
Sandf. Ch. 43; Livingston v. McInlay, 16 Johns. 165; Walker vy. Snede-
ker, Hoff. 145 ; Truscott v. King, 6 N. Y. 147; Contra, Clapp v. Ely, 2
Stockt. 178 ; s. o. 8 Dutch. 555.

° Updike v. Titus, 2 Beasley, 151; Hack v. Stewart, 8 Penn. 213 ; San-
ders vy. Wagonseller, 19 Penn. 248 ; Van Wyck v. Seward, 18 Wend. 875;
Zerbe v. Miller, 16 Penn. 488,

" Coley v. Coley, 1 McCarter, 350.

17
258 CONSIDERATION.

ings of his minor child,’ and a husband to the earnings
of his wife, a transfer in consideration of such earnings
by a person to his wife or child is voluntary. A con-
tract by a minor for his emancipation constitutes a
moral obligation, and is a sufficient consideration for a
promise made by him when he is of age.’

 

’ Swartz v. Hazlett, 8 Cal. 118; Brown v. McDonald, 1 Hill Ch. 297;
Dick v. Gressim, 1 Freem. Ch. (Miss.) 428; Danley v. Rector, 10 Ark.
211.

? Skillman v. Skillman, 2 Beasley, 403; Belford v. Crane,1 C. EB
Green, 265 ; Cramer v. Reford, 2 C. E. Green, 867; Beach v. Baldwin, 14
Mo. 597 ; Pinkston v. McLemore, 31 Ala. 308.

* Geist v. Geist, 2 Penn. 441.
CHAPTER X.

WHAT TRANSFERS ARE WITHIN THE STATUTE.

CoMPREHENSIVENESS OF THE sTATUTE—The statute
invalidates all and every fraudulent feoffment, gift,
grant, alienation, bargain and conveyance of land, tene-
ments, hereditaments, goods and chattels, or any of them,
or of any lease, rent, common, or other profit or charge
out of the same lands, tenements, hereditaments, goods
and chattels, or any of them, by writing or otherwise,
and all and every bond, suit, judgment, and execution,
and, as it is merely declaratory of the common law, the
common law in its abhorrence of fraud is able to reach
every other fraudulent device not included in it. Ad
pretor: Que fraudationis causa gesta erunt cum eo
gui fraudem non ignoraverit de his curatort bonorwm
vel et cut de ea re actionem dare opportebit infra annum,
quo experiundt potestas fuerit, actionem dabo, idque
etiam adversus ipsum gui fraudem fectt, servabo. Neces-
sario pretor hoc edictum proposuit; quo edicto consulit
creditoribus, revocando ea guaecunque in fraudem eorum
alienata sunt. Att ergo praetor, que fraudationis causa
gesta erunt. Haec verba generalia sunt et continent in se
omnem omnino in fraudem factam, vel alienationem vel
quemcunque contractum. Quodcunque igitur fraudis
causa factum est, videtur his verbis revocari, qualecun-
que fuerit, nam late ista verba patent. Sive ergo rem
alkenavit sive acceptilatione vel pacto aliquem liberavit,
idem erit probandum. Et si pignora liberet vel quem
260 WHAT TRANSFERS ARE WITHIN THE STATUTE.

alium in fraudem creditorum preeponat vel ec preebuit
exceptionem sive se obligavit fraudandorum creditorum
causa sive numeravit pecuniam vel quodeunque aliud
fecit in fraudem creditorum, palam est edictum locum
habere. Gesta fraudationis causa accipere debemus non
solum ea gue contrahens gesserit aliguis, verumetiam
st forte data opera ad judicium non adfuit vel litem
“mort patiatur vel a debttore non petit ut tempore liber-
atur aut usum fructum vel servitutem amittit et qui
aliquid facit ut desinat habere quod habet, ad hoc edie.
tum pertinet. In fraudem facere videri etiam eum qui
non facit quod debet facere intelligendum est, id est st
non utatur servitutibus ; sed etst rem suam pro derelicto
habuerit ut quis eam suam faciat.

Not TRANSFERS To DEBTORS.—In order to be within
the prohibition of the statute, the transfer must be one
that is made by a debtor and not toadebtor. Although
a person is insolvent, others may make any contract
with him which is not otherwise prohibited by law.
They may place goods in his hands to sell,? or leave
them in his possession,’ or allow him the profits arising
from sales made by him,* even though he is to sell in
his own name,’ or deliver articles to him upon condition
that the title shall not vest in him until he shall have
paid all the purchase-money,’ or advance money to a

 

? Dig. Lib. 42 tit. 9; 1 Domat. B. 2 tit. 10.

* Howard v. Sheldon, 11 Paige, 558; Blood v. Palmer, 11 Me. 414;
Robinson y. Chapline, 8 Iowa, 91.

* Hill v. Hill, 1 Dev. & Bat. 386; Anderson y. Biddle, 10 Mo. 28;
Norris v. Bradford, 4 Ala. 208.

* Patten v. Clark, 5 Pick. 4 ; McCullough v. Porter, 4 W. & 9. 177.

* Blood v. Palmer, 11 Me, 414 ; Merrill v. Rinker, 1 Bald. 528.

° Esty v. Aldrich, 46 N. H. 127; Forbes v. Marsh, 15 Conn. 884;
McFarland y. Farmer, 42 N. H. 386 ; Strong v. Taylor, 2 Hill, 326; Hill v.
Freeman, 3 Cush. 257 ; Bailey v. Harris, 8 Iowa, 381; Reeves y. Harris, 1
WHAT TRANSFERS ARE WITHIN THE STATUTE. 261

mechanic under a stipulation for an interest in the article
to be manufactured by him,’ or purchase articles to,be
subsequently manufactured,? or employ a mechanic with
wages varying according to the profits® Whenever
property is thus placed in the hands of an insolvent
debtor, it is always a question whether or not the form
of the transaction is not merely colorable. If there is
in fact a sale,* or a gift, the property will be liable to his
debts. The title will generally be considered to be
vested in him when the property is delivered to him
for consumption or to be dealt with in any way incon-
sistent with the ownership of the grantor, or in a
manner that would necessarily destroy the grantor’s
lien or right of property.’ A devise with a secret trust
to hold for the debtor is not within the statute."

PAYMENTS TO A DEBTOR.—A. payment of money to a
debtor is not within the statute, even though it is made
for the purpose of avoiding an attachment. Apud

 

Bailey, 663 ; Baylor v. Smithers, 1 Litt. 105; Bickerstaff v. Doub, 19 Cal.
109; Chaffee v. Sherman, 26 Vt. 237; Paris v. Vail, 18 Vt. 277 ; Ayer v.
Bartlett, 6 Pick. 71 ; Contra, Rose v. Story, 1 Penn. 190; Haak vy. Lin-
derman, 64 Penn. 499; Becker v. Smith, 59 Penn. 69; Waldron v. Haupt.
82 Penn. 408; Leigh Co. v. Field, 8 W. & 8. 232; Ketchum v. Watson,
24 Til. 592.

* Beaumont v. Crane, 14 Mass. 400; Frost v. Willard, 9 Barb. 440;
Glover y. Allen, 6 Pick, 209; Calkins v. Lockwood, 16 Conn. 276 ;
Macomber v. Parker, 18 Pick. 175; Becker y. Smith, 59 Penn. 469;
King v. Humphreys, 10 Penn. 217.

? Veazie v. Holmes, 40 Me. 69; Bartlett v. Blake, 37 Me. 124; vide
Jenkins v. Erchelberger, 4 Watts, 121.

? Faulkner v. Waters, 11 Pick. 473.

4 Merrill vy. Rinker, 1 Bald. 528; Strong v. Taylor, 2 Hill, 326.

® Norris v. Bradford, 4 Ala. 203; Fitzhugh v. Anderson, 2 H. & M.
289 ; Ford v. Aikin, 4 Rich. 121; McDermott v. Barnum, 16 Mo. 114 ; 19
Mo. 204; vide Hollowell v. Skinner, 4 Ired. 165.

® Ludden v. Hazen, 31 Barb. 650; Dick v. Cooper, 24 Penn. 217;
Heitzman v. Divil, 11 Penn. 264.

7 M’Kee v. Jones, 6 Penn. 425.

® Simpson v. Dall, 3 Wall. 460 ; Fletcher vy. Pillsbury, 35 Vt. 16.
962 WHAT TRANSFERS ARE WITHIN THE STATUTE.

Labeonem scriptum est eum qui swum recipiat, nullam
videre fraudem facere, hoc est, ewm qui quod sibi
debetur receperat. Hum enim quem proses invitum
solvere cogat, impune non solvere, iniguum esse.  To-
tum enim hoc edictum ad contractus pertinere, m
guibus se pretor non interponit, ut puta pignora,
venditionesque: When an agent exceeds his authority
and purchases goods in the name of his principal as a
means of covering them from his creditors, they are
liable to execution and sale for his debts.

ONLY THE OREDITORS OWN DEBTOR.—The statute,
moreover, intends simply to guard a creditor from the
fraudulent attempts of his debtor to delay, hinder, or
defraud him of the recovery of his debt by disposing of
the property, which he would have a right to seize as
soon as he obtains a judgment. The very term creditor
implies this. There can be no creditor but where there
is a debtor, and no party is a creditor of any one save
the person who owes him the money. The creditors of
A, can not, therefore, derive any assistance from the act
in respect to the fraudulent transfers of B. C. and D.,
for it is of no consequence to them what B. C. and D.
may do with their property. Such transfers can not de-
lay, hinder, or defraud them. Consequently a transfer by
a feme sole on the eve of marriage for the purpose of pro-
tecting the property against the claims of the creditors
of her intended husband is not fraudulent as against
them.’ A term of years which belongs to the debtor’s
wife as administratrix is not liable for his debts, and a

 

* Dig. lib. 42 tit. 9; see 61 Domat, B. 2 tit. 10.

? White v. Cooper, 8 Penn. 1380.

* Land v. Jeffries, 5 Rand. 211, 699; Andrews v. Jones, 10 Ala. 400;
Prior y. Kinney, 6 Munf. 510.
WHAT TRANSFERS ARE WITHIN THE STATUTE. 263

transfer of it is not within the statute as against his
creditors.’ But if a feme sole, being in debt, conveys her
property in trust for her benefit and then marries a
person who becomes a bankrupt, her property, so far as
she takes a separate estate under the trust, is liable to
satisfy her debts. Although the discharge of her hus-
band releases her personally at law, yet her property is
not discharged, for the failure to make a provision for her
creditors renders the transfer fraudulent asagainst them.

Kinp or Proprerty.—In respect to the kind of pro-
perty which may be the subject of a fraudulent transfer,
the statute extends to lands, tenements, hereditaments,
goods and chattels, and any lease rent, common or other
profit or charge out of lands, tenements, hereditaments,
goods or chattels. It is important, however, to bear
in mind that the common law has not been repealed, and
consequently will reach every species of property not
included in this enumeration. The source from which
the debtor derived the property is wholly immaterial.®
If a transfer is fraudulent, the grantee can not retain
the property on the ground that it is of no value*

Cuoszs In action.—The terms “ goods and chattels”
embrace things in action as well as in possession,” but
as stock,® choses in action" and money’ could not be taken

 

» Ridler v. Punter, Cro. Eliz. 291.

2 Chubb v. Stretch, 9 L. R. Eq. 555; Briscoe v. Kennedy, 1 Bro. C.C.
17 note; Miles v. Williams, 1 P. Wms. 249; Hamlin v. Bridge, 24 Me.
145.

® Bank v. Ballard, 12 Rich. 259.

* Garrison v. Monaghan, 33 Penn. 232.

5 Pinkerton v. Railroad Co. 42 N. H. 424.

° Horn vy. Horn, Amb. 79; Dundas v. Dutens, 1 Ves. Jr. 196; Rider v.
Kidder, 10 Ves. 360.

7 Sime v. Thomas, 12 A. & E. 686; Grogan y. Cooke, 2 Ball. & B. 2833
Norcut v. Dodd, 1 Cr. & Ph. 100.

* Duffin y. Furness, Sel. Cas, Ch. 77.
964 WHAT TRANSFERS ARE WITHIN THE STATUTE.

on execution at common law, it has been doubted
whether a transfer of such property could be fraudu-
lent. The question is one that relates merely to the
remedy as affected by the character of the property,
and, whenever a statute enables a creditor to reach
such property, either by attachment or execution, a
transfer of it becomes liable to investigation on the
ground of fraud. Even independently of such statutory
provisions the better doctrine is that a court of equity
in aid of an execution at law, may, for the purpose of
suppressing fraud and enforcing justice, reach property
which is not liable to legal process at law. Equity fol-
lows out the law in this respect by adopting its maxims
and carrying them out according to the principles of
justice and right. Where the law fails equity, there-
fore, affords relief for the purpose of enforcing the pay-
ment of just debts.’

 

? Pinkerton vy. Railroad, 42 N. H. 424; Gaylard v. Couch, 5 Day,
223; Warden v. Jones, 2 D. & J. 76;8.c. 27 L. J. Ch. 190; Sims v.
Thomas, 12 A. & E. 536; Stokoe v. Cowan, 29 Beay. 637; Barrack v. Mc-
Cullock, 8 K. & J. 110; Magawley’s Trust, 5D. & 8. 1; Freeman v.
Pope, 5 L. R. Ch. 588.

* Taylor v. Jones, 2 Atk. 600; Partridge v. Gopp, 1 Eden, 163; s.c.
Ambl. 596; Bayard v. Hoffman, 4 Johns. Ch. 450; Horn v. Horn, Ambl.
79; Smithier v. Lewis, 1 Vern. 398; Hopkirk v. Randolph, 2 Brock. 132;
Doughten v. Gray, 2 Stockt. 323; Law v. Payson, 82 Me. 521; Bean v.
Smith, 2 Mason, 252 ; Catchings v. Manlove, 39 Miss. 655; Pringle v. Hodg-
son, 3 Ves. 617; Planter’s Bank v. Henderson, 4 Humph. 75; Abbott v.
Tenney, 18 N. H. 109; Wright v. Petrie, 1 5. & M. Ch. 282; Green v.
Tantum, 4 C. BE. Green, 105; Hadden v. Spader, 20 Johns. 554; 8.0.5
Johns. Ch. 280; Tappan v. Evans, 11 N. H. 811; Chase v. Searles, 45 N. H.
511; Weed v. Pierce, 9 Cow. 722; West v. Saunders, 1 A. K. Marsh, 108;
Greer v. Wright, 6 Gratt. 154; Harlan v. Barnes, 5 Dana. 219; Sargent v.
Salmond, 27 Me. 589; Contra, Dundas v. Dutens, 1 Ves. Jr. 196; Rider v.
Kidder, 10 Ves. 8360; Matthews v. Feaver, 1 Cox, 278; Cosby v. Ross, 3 J.
J. Marsh, 290; Winnibrinner v. Weisiger, 3 Mon. 82; Crozier v. Young,
3 Mon, 157; Grogan v. Cooke, 2 Ball. & B. 238 ; Buford v. Buford, 1 Bibb.
305; Sims v. Thomas, 12 A. & E. 536; Norcutt v. Dodd, 1 Cr. & Ph. 100;
Bickley v. Norris, 2 Brev. 252; Duffin vy. Furness, Sel. Cas. Ch. 77; Caillaud
v. Estwick, 1 Anst. 881.
WHAT TRANSFERS ARE WITHIN THE STATUTE. 265

PURCHASES IN NAME OF ANOTHER.—At one time there
was some question whether creditors could reach proper-
ty which was paid for by the debtor when the title was
fraudulently conveyed by the vendor to another.’ The
statute makes all fraudulent conveyances void, but if
such a transfer were void, the title would remain in the
grantor, and consequently the creditors could not seize
the property. Such a coutrivance is manifestly not
within the provisions of the statute. It is, however,
within the principles of the common law which will
not permit a debtor to convert his funds, which ought
to be applied to pay his debts, to the purchase of prop-
erty conveyed to another to the prejudice of his credit-
ors. Justice is attained by holding the grantee as a
trustee for the benefit of the creditors upon the prin-
ciple that a person acquiring a title by fraud shall be
held as a trustee for the injured person, although he did
not intend to acquire the property in that character.*
It may be considered as settled that property so pur-
chased in the name of another is liable to the demands
of creditors.” As the theory of the law is that the

 

1 Fletcher v. Sidley, 2 Vern. 490; Glaister v. Hewer, 8 Ves. 196; Proc-
tor v. Warren, Sel. Cas. Ch. 78.

2 Gowing v. Rich, 1 Ired. 558; Gardiner Bank v. Wheaton, 8 Me. 873;
Gray v. Faris, 7 Yerg. 155.

® Taylor v. Heriot, 4 Dessau. 227.

4 Coleman v. Cocke, 6 Rand. 618 ; Brown v. McDonald, 1 Hill. Ch. 297;
Godding v. Brackett, 34 Me. 27; Gray v. Faris, 7 Yerg. 165; Bean v. Smith,
2 Mason, 252.

® Peacock v. Monk, 1 Ves. Sr. 127; Christy v. Courtenay, 13 Beav. 96;
Farrow v. Teackle, 4H. & J. 271; Wright v. Douglass, 8 Barb, 654; Taylor
vy. Heriot, 4 Dessau. 227; Proseus v. McIntyre, 5 Barb. 424; Coleman v.
Cocke, 6 Rand. 618; Christ’s Hospital v. Budgin, 2 Vern. 683; Doyle v.
Sleeper, 1 Dana, 581; Bay v. Cook, 31 Il. 336; Houghton v. Tate, 3 Y.
& J.486; Whittlesey v. McMahon, 10 Conn. 1387; Tappan v. Bulter, 7 Bosw.
480; Wood v. Savage, 2 Doug. (Mich.) 816; Miller v. Wilson, 15 Ohio, 108;
Carpenter v. Roe, 10 N. Y. 227; Mead v. Gregg, 12 Barb. 653; Croft v.
Arthur, 3 Dessau. 228; National Bank v. Sprague, 5 C. E. Green, 13;
266 WHAT TRANSFERS ARE WITHIN THE STATUTE.

grantee holds the property as a trustee, the trust may
always be enforced in equity." Whether the property
is also liable to an execution at law is a point upon
which the decisions vary. When the fraudulent grantee
takes an assignment of an outstanding mortgage, pur-

 

Dewey v. Long, 25 Vt. 564; Gough v. Henderson, 2 Head, 628; Faringer
v. Ramsay, 2 Md. 865; Stewart v. Cohn, 21 La, An. 849; North v. Brad-
way, 9 Minn. 183; Brown v. McDonald, 1 Hill Ch. 297; Cutter v. Griswold,
Walk. Ch. 487; Brewster v. Power, 10 Paige, 562; Jackson v. Forrest,
2 Barb. Ch. 576; Neale v. Day, 28 L. J. Ch. 45; Barrack v. McCulloch, 3
K. & J.110; DeChyrton’s Case, Dyer, 295 a; Jencks v. Alexander, 11 Paige,
619; Sumner v. Sawtelle, 8 Minn. 809; Huggins v. Perine, 80 Ala. 396;
Smith v. Parker, 4 Me. 452; Halbert v. Grant, 4 Mon. 580; Whittlesey v.
McMahon, 10 Conn. 137;¢Whitney v. Stearns, 11 Met. 319; Baldwin v.
Johnson, 8 Ark. 260 ; Doolittle v. Bridgman, 1 Greene, 265 ; Contra Fletcher
v. Sidley, 2 Vern. 490; Glaister v. Hewer, 8 Ves. 196; Procter vy. Warren,
Sel. Cas. Ch. 78 ; Crozier v. Young, 3 Mon. 157.

* Patterson v. Campbell, 9 Ala. 933; Gardiner Bank v. Wheaton, 8 Me.
373; State Bank v. Harrow, 26 Iowa, 426; Smith v. Parker, 41 Me. 452;
Brown v. McDonald, 1 Hill Ch. 297; Bertrand v. Elder, 23 Ark, 404;
Corey v. Greene, 51 Me. 114; Marshall v. Marshall; 2 Bush. 415 ; Halbert v.
Grant, 4 Mon. 580 ; Peay v. Sublet, 1 Mo. 449; Newell v. Morgan. 2 Har-
ring. 225 ; Dockray v. Mason, 48 Me. 178; Bay v. Cook, 81 Ill. 836 ; Belford
v. Crane, 1 C. E, Green, 265; Demaree v. Dreskell, 8 Blackf. 115 ; Rucker
v. Abell, 8 B. Mon. 566; Gordon v. Lowell, 21 Me. 251; McDowell v.
Cochran, 11 Il. 31; Walcott v. Almy, 6 MeLean. 28; Gentry v. Harper,
2 Jones, Eq. 177.

* Guthrie v. Gardner, 9 Wend. 414; Bodine v. Edwards, 10 Paige,
504; Arnot v. Beadle, 1 Hill. & D. 181; Tevis v. Doe, 8 Ind. 129; Penning-
ton v. Clifton, 11 Ind. 162; Webster v. Withey, 26 Me. 826; Kimmel v.
McRight, 2 Penn. 38; Cutter v. Griswold, Walk. Ch. 487; Roe v. Irwin,
32 Geo. 89; Coleman y. Cocke, 6 Rand. 618; Cecil Bank v. Snively, 23 Md.
268; Godding v. Brackett, 84 Me. 27; Clark v. Chamberlain, 18 Allen, 257;
Wait v. Day, 4 Denio, 439; Hunt v. Blodgett, 17 Ill. 588. In the follow-
cases it has been held not liable: Howe v. Bishop, 8 Met. 26; Garfield v.
Hatmaker, 15 N. Y. 476; Brewster v. Power, 10 Paige, 562; Page v. Qood-
man, 8 Ired. Eq. 16; Worth v. York, 18 Ired. 206; Davis v. McKinney, 5
Ala. 719; Davis v. Tibbetts, 39 Me. 279; Gray v. Faris, 7 Yerg. 155; Dewey
v. Long, 25 Vt. 564; Gowing v. Rich, 1 Ired. 558; Garrett y. Rhame, 9
Rich, 407; Jimmerson v. Duncan, 8 Jones, (N.C.) 537; Low v. Marco, 58
Me. 45; Webster vy. Folsom, 58 Me. 280; Hamilton v. Cone, 99 Mass. 478 ;
vide Goudwin vy. Hubbard, 15 Mass, 210.
WHAT TRANSFERS ARE WITHIN THE STATUTE. 267

chased with debtor's money, the legal title is in the
debtor."

EXPENDITURES UPON ANOTHER’s LAND.—If a debtor
uses his personal property upon the real estate of
another, with the knowledge and consent of the owner,
so that it becomes a part of such realty, for the pur-
pose of defrauding his creditors, and preventing them
from obtaining satisfaction of their demands, they may
still follow the property into the hands of the owner of
the premises thus benefited, and fasten their claims upon
such premises to the extent of the debtor’s property so
appropriated.’ If a debt, however, has been created be-
tween the parties, the creditors can only have the debt
appropriated to the satisfaction of their demands, but if
no debt has been created, the appropriate remedy is to
fasten their claim upon the real estate to the extent of
the debtor’s property thus made part of the realty.

Powrr or apporntuENT.—If a debtor has a general
power of appointment, and executes it voluntarily with-
out consideration for the benefit of a third person, the
property so given under the power is liable to the de-
mands of his creditors? A power is general within
the meaning of the rule according to the persons or uses
to which the property may be appointed under it, and

 

» Stephens v. Sinclair, 1 Hill, 143.

? Isham y. Schaffer, 60 Barb. 817; Lynde v. McGregor, 13 Allen, 182;
Athey v. Knotts, 6 B. Mon. 24; Contra, Campion v. Cotton, 17 Ves. 264;
Ewing v. Cantrell, Meigs. 364.

’ Mackason’s Appeal, 42 Penn. 330; Smith v. Garey, 2 Dev. & Bat. Eq.
42; Stillwell v. Mellersh, 20 L. J. Ch. 356 ; Townsend v. Windham, 2 Ves.
Sr. 1; Lassels vy. Cornwallis, 2 Vern. 465; 8.0. Prec. Ch. 232; George v.
Milbank, 9 Ves. 189; Whittington v. Jennings, 6 im. 498 ; Bhonipson ¢.
Towne, Prec. Ch. 52; Bainton v. Ward, 2 Atk. 172; Pack y. Bathurst, 3
Atk. 269; Thompson v. Towne, 2 Vern. 319; 5. c. Pree. Ch. 52 ; Tallmadge
v. Sill, ot Barb. 34.
2968 WHAT TRANSFERS ARE WITHIN THE STATUTE.

not according to the time when its exercise takes effect,
or the instrument by which its exercise is to be
manifested! A general power is a power to appoint to
whomsoever the donee pleases.” If there is only a
power to appoint among certain persons, who are def:
initely described, so that the debtor cannot make the
appointment for himself, his creditors cannot claim the
benefit of it2 If the power is general, it makes no
difference whether the appointment is by will or by
deed. It also makes no difference whether it is a
power to charge a sum of money on land or to create
a chattel interest out of land.’ It has also been said
that a general power makes the donee equitable owner
of the estate, and gives him such a dominion over it as
subjects it to his debts.°

Exempr property.—Property which is exempt by
a positive statute from liability for the owner’s debts,
is not susceptible of a fraudulent alienation, and con-
sequently is not within the statute.” But if a transfer
of land is merely colorable upon a secret trust, that
the grantee will hold it for the debtor’s benefit, after he
has abandoned the use of it as .a homestead, it is
fraudulent. Partners who own land in common, will

 

* Johnson v. Cushing, 15 N. H. 298; Tallmadge v. Sill, 21 Barb. 34,

? Tallmadge v. Sill, 21 Barb. 34.

* Townsend v. Windham, 2 Ves. Sr. 1.

4 Townsend v. Windham, 2 Ves. Sr. 1.

* Townsend v. Windham, 2 Ves. Sr. 1.

°Bainton v. Ward, 2 Atk. 172; Ashfield v. Ashfield, 2 Vern. 287 ;
Troughton v. Troughton, 3 Atk. 656; vide White v. Sansom, 3 Atk. 411.

7 Bond v. Seymour, 1 Chand. 40; Legro v. Lord, 10 Me. 161; Vaughan
vy. Thompson, 17 Ill. 78; Wood v. Chambers, 20 Tex. 247; Cox v. Shrop-
shire, 25 Tex. 113; Smith v. Allen, 89 Miss. 469; Martel v. Somers, 26
Tex. 551; Lishy v. Perry, 6 Bush. 515; Pike v. Miles, 23 Wis. 164;
Dreutzer v. Bell, 11 Wis. 114; Anthony vy. Wade, 1 Bush. 110; Morton
y. Ragan, 5 Bush. 334; Foster v. McGregor, 11 Vt. 595; Patten v. Smith,
5 Conn. 196; 8. c. 4 Conn. 450.

® Cox y. Shropshire, 25 Tex. 113.
WHAT TRANSFERS ARE WITHIN THE STATUTE. 269

not be allowed to divide it in fraud of creditors, so that
each may claim a homestead.’ It is also a fraud for
a debtor to convert his assets into property, which is
exempt from execution,’ or to sell his property for the
purpose of paying off a mortgage upon his homestead.®
It has been held however, that if he has money on
hand he may pay off such a mortgage.

Dezxtor’s LaBsor— Quod autem cum possit aliquid
quaerere, non id agit ut adquirat, ad hoc edictum non
pertinet. Pertinet enim edictum ad deminuentes patri-
monium suum, non ad eos gui id agunt, ne locupletentur.
Unde si quis ideo conditioni non paret ne committatur
stipulatio in ea conditione est, ne faciat hie edicto
locum.” Such were the principles of the civil law,
and such are the principles of law which have been
recognized in the construction of the statute. Creditors
have no power to compel a debtor to labor, and earn
the means to pay their demands. He may resign him.
self to hopeless and endless want, or he may limit his
exertions to just such an extent as may be adequate to
furnish him the means of a scanty subsistence, and in
all this he violates no legal right of his creditors. The
law allows even more than this. His first and most -
imperative duty is to support and maintain himself and
family, from the proceeds of his labor. He is under no
legal or moral obligation to appropriate these to the
benefit of his creditors, and leave himself and_ his
family to suffer hunger and want.’ Consequently he

 

* Bishop v. Hubbard, 23 Cal. 514.

* In re Henkel, 2 B. R. 167.

’ Riddell v. Shirley, 5 Cal. 488.

‘ Randall v. Buffington, 10 Cal. 491.

* Dig. lib. 42 tit. 9, Sec. 1; 1 Domat. B. 2 tit. 10.

* Leslie v. Joyner, 2 Head, 514; Griffin v. Cranston, 1 Bosw. 281.
Holdship v. Patterson, 7 Watts, 547; Teeter v. Williams, 3 B. Mon. 562;
Abbey v. Deyo, 43 N. Y. 348; 8, c. 44 Barb. 374.
270 WHAT TRANSFERS ARE WITHIN THE STATUTE.

has the right to enter into a contract to labor for
another in consideration of the support and main-
tenance of himself and family... If an attachment is
laid in the hands of his employer, after a contract has
been partially performed, he may refuse to complete it,
and a new arrangement may be made for the purpose
of protecting his subsequent earnings from the effect of
such attachment? He is not permitted, however, to
make an assignment of his future earnings with the
intent to delay, hinder or defraud his creditors.’

Nor APPLY LABOR TO ACCUMULATION OF PROPERTY.—
Although the law will not compel a debtor to labor
and earn money to pay his debts, yet there is a strong
moral obligation resting upon him to use the strength,
skill and talents with which he is endowed for that
purpose, and this obligation is one which the law to
a certain extent recognizes and enforces. He has an
election to labor or not as he may please with which
the law will not interfere. He is also countenanced by
the law in the proper discharge of his duty to provide
a maintenance and support for himself and his family.
But beyond the necessary wants of himself and his
family, there is a limit which the law does not allow
him to transcend. He is not permitted to treasure up
a fund accruing from his labor or vocation whatever
it may be, and claim that it shall be protected for the
benefit of himself or his family, against the demands of
creditors.* Every agreement or contrivance entered
into with a view to deprive his creditors of his future

 

* Leslie v. Joyner, 2 Head. 514; Tripp v. Childs, 14 Barb. 85; Holdship
y. Patterson, 7 Watts, 547.

? Teeter v. Williams, 8 B. Mon. 562,

* Gragg v. Martin, 12 Allen, 498.

“Hamilton v. Zimmerman, 5 Sneed. 89.
WHAT TRANSFERS ARE WITHIN THE STATUTE. 271

earnings, and enable him to retain and use them for his
own benefit and advantage, or to make a permanent
provision for his family, is fraudulent and void. Al.
though his creditors can not compel him to labor for
the purpose of satisfying their demands, yet they have
a just claim in law upon the fruits of his labor per-
formed.'

Bostvess uN wire’s NaME.—The law does not permit
him to carry on a business in the name of his wife,
go as to invest the proceeds of his skill and labor in
hername.* If she has aseparate estate she may employ
him and compensate him for his services? Such em-
ployment however must be in good faith, and not
merely colorable.* If the character of an agent is as-
sumed in an improper case, the law disregards it. An
arrangement by which the husband acts as his wife’s
agent without any compensation, or for a compensation
that is insufficient is in effect, an attempt to make a
voluntary conveyance of the products of his skill and
labor in her favor, and is void as against his creditors.
She is entitled to her money with interest, and the
balance will be appropriated to the payment of his
debts.°

 

1Tripp v. Childs, 14 Barb. 85; Patterson v. Campbell, 9 Ala. 933;
Waddingham v. Loker, 44 Mo. 182; vfde Isham v. Schaffer, 60 Barb. 817.

? National Bank v. Sprague, 5 C. E. Green, 13; Quidort v. Pergeaux,
3 ©. E. Green, 472; Keeney v. Good, 21 Penn. 349; Pauley v. Vogel, 42
Mo. 291.

® Knapp v. Smith, 27 N. Y. 277; Voorhis v. Bonesteel, 7 Blatch. 495 ;
Gage v. Dauchy, 34 N. Y. 298; Feller v. Alden, 23 Wis. 301; Savage v.
O'Neil, 48 N. Y. 298; Buckley v. Wells, 33 N. Y. 518; Abbey v. Deyo, 43
N. Y. 343.

‘Kapp v. Smith, 27 N. Y. 277; Gage v. Dauchy, 34 N. Y. 293;
Savage v. O'Neil, 43 N. Y. 298.

® Glidden y. Taylor, 16 Ohio St. R. 509; Feller v. Alden, 23 Wis. 301;
Shackleford v. Collier, 6 Bush. 149; vide Ashurst v. Given, 5 W. & 8.

323.
272 WHAT TRANSFERS ARE WITHIN THE STATUTE.

Wirr’s Earninas.—At common law, a husband is
entitled to all the property which the wife acquires by
her skill or labor during coverture. His right to her
services and her earnings is absolute. A transfer in
consideration of services already performed or a renun-
ciation of her future earnings stands on the same
grounds as a voluntary conveyance.*

Cuinp’s EARNINGS.—A parent by law is entitled to
the earnings of his minor child. This right arises out
of his obligation to support and educate the child, and
this responsibility is one from which he can not absolve
himself. As his power over the child’s earnings arises
from his duty to support and educate the child, it is
commensurate with it. As long as the responsibility
continues, the power over the child continues also, A
promise by the parent to compensate the child for his
services is therefore purely voluntary, and its validity
depends upon the principles which regulate voluntary
conveyances.” If the child works for another, the pro-
ceeds belong to the parent, and are not a valuable con-
sideration for a transfer from the parent to the child.*

EMANCIPATION OF cHILD.—As the right of the par.
ent, however, arises out of his obligation to support
and educate the child, such earnings are subject in the

 

1 Skillman y. Skillman, 2 Bearley, 408; Belford v. Crane, 1 C. E.
Green, 265 ; Cramer vy. Reford, 2 C. E. Green, 367 ; Shackelford y. Col-
lier, 6 Bush. 149; Cropsey v. McKinney, 30 Barb. 47; Beach v. Baldwin,
14 Mo. 597; Pinkston v. McLemore, 31 Ala. 308.

? Pinkston v. McLemore, 31 Ala. 308; McLemore y. Knuckolls, 37 Ala.
662; Hinman v. Parkis, 88 Conn. 188; Ewing v. Gray, 12 Ind. 64.

* Swartz v. Hazlett, 8 Cal. 118; Brown v. McDonald, 1 Hill Ch, 297;
Dick v. Grissom, 1 Freem. Ch, Miss. 428; Danley vy. Rector, 10 Ark.
211.

“ Winchester v. Reid, 8 Jones, (N. C.) 877; Worth v. York, 18 Ired.
206; U.S. v. Mertz, 2 Watts, 406.
WHAT TRANSFERS ARE WITHIN THE STATUTE. 273

first instance to a charge for that purpose, and no cred-
itor has a right to have them applied to the payment
of his debt to the exclusion of a proper education and
maintenance.’ If therefore the father emancipates the
child and allows him to provide for his own support and
education by his own labor, he does not withdraw from
his creditors any property or fund to which they are
legally or justly entitled for the payment of their de-
mands.’ It must, however, distinctly appear that there
has been a mutual abandonment of the rights and duties
of parent and child, and a relinquishment of all prop-
erty in the child’s earnings or they can not be protected
from the parent’s creditors.? Marriage is of itself a
legal emancipation and entitles the child to the proceeds
of his labor independent of any act of emancipation on
the part of the parent, and if the parent then contracts
to pay him for his services, he is bound to do so and
creditors can not complain.*

CHARACTER OF CONVEYANCE.—The withering influ-
ence of the statute extends to all feofments, gifts, grants,
alienations, bargains, and conveyances, and all bonds,
suits, judgments, and executions, and the principles of
the common law will embrace every device not enumer-
ated in the statute. Every description of contract, and
every transfer or conveyance of property, by what means
soever it is done, is vitiated by fraud. Whether the con-
tract is oral or in writing; whether executed by the
parties with all the solemnities of deeds by seal’ and
acknowledgment; whether in the form of the judgment

 

1 Lord v. Poor, 23 Me. 569; Leslie v. Joyner, 2 Head, 514.
2 Lord v. Poor, 23 Me. 569; Manchester v. Smith, 12 Pick. 113 ; Jeni-
son v. Graves, 2 Blackf. 440; U S. v. Mertz, 2 Watts, 406.
35 U. 8. v. Mertz, 2 Watts, 406.
4 Dick v. Grissom, 1 Freem. Ch. (Miss.) 428.
® Garretson y. Kane, 3 Dutch. 208.
18
274 WHAT TRANSFERS ARE WITHIN THE STATUTE.

of a court, stamped with judicial sanction,’ or carried
out by the device of a corporation organized with all
the forms and requirements demanded by any statute,
if it is contaminated with fraud, the law declares it to
be a nullity. Deeds, obligations, contracts, judgments,
and even corporate bodies may be the instruments
through which parties may obtain the most unrighteous
advantages. All such devices and instruments have
been resorted to for the purpose of covering up fraud,
but whenever the law is invoked all such instruments
are declared nullities. They are a perfect dead letter.
The law looks upon them as if they had never been
executed. They can never be justified or sanctified by
any new shape or course, by forms or recitals, by cove-
nants or sanctions, which the ingenuity or skill or
genius of the rogue may devise.” The transfer must,
however, be capable in point of law of SzoccHng or
aiding in the execution of an illegal purpose?

Move momateriaL.—lf a tenant commits a forfeiture
to the end that the reversioner may enter for the pur-
pose of defrauding his creditors, it is a fraudulent con-
veyance.* Where a judoment is given against a party
and he suffers himself to be outlawed in felony with
the intent to defraud his creditors and afterwards pur-
chases a pardon and has restitution, his goods are still’
liable to execution on account of the fraud.’ A fraudu-
lent cancellation of an indebtedness will not discharge
the debt. A note for a debt taken in the name of

 

+ Wilhelmi v. Leonard, 13 Iowa, 330 ; Hackett v. Manlove, 14 Cal. 85.

? Booth v. Bunce, 33 N. Y. 1389; 8. c, 24. N. Y. 592; Curtis v. Leavitt,
15 N.Y. 9.

* Heydock y. Stanhope, 1 Curt. 471. « Anon Vent, 257.

° Beverly’s Case, 2 Dyer, 245, c.; note Verney’s Case, 2 Dyer, 245 c.

° Martin v. Root, 17 Mass, 222 ; Everett v. Read, 3 N. H. 55 ; McGay
v. Keilback, 14 Abb. Pr. 142 ; Wise v. Tripp, 13 Me. 9; Wright y. Pe-
trie, 18. & M. Ch, 282,
WHAT TRANSFERS ARE WITHIN THE STATUTE. 275

another is, as far as creditors are concerned, an assign-
ment of the debt.!. A liability, however, which is still
in fiert and a mere contingent obligation may be can-
celled, rescinded, or discharged.* A remission of a
portion of rent that is due in an unfavorable year in
good faith is merely yielding up that which an enlarged
sense of justice requires shall not be exacted A ten-
ant in tail may disentail the property and re-settle it,
leaving the same estate to himself as he had before,
and the deed will not be fraudulent, for the creditors
have the same remedies, as far as he is concerned, which
they had before, namely, the power of going against
his life estate.‘

CoNTRACTS RELATING TO LAND.—A written contract
for the purchase of land upon which nothing has been
paid may be cancelled, and the property conveyed by
the owner to another for a valuable consideration.®
An oral contract in which there has been a part pay-
ment does not vest any interest in the debtor, which
is liable to an execution at law, and if he surrenders
or transfers his bargain, the property will not be liable.®
But if a surrender is fraudulently made, the creditors
may recover the money so paid.’ An assignment of a
mortgage in consideration of money paid by the debtor,
if made in fraud, is equivalent to a payment and cancel-
lation of it.§

 

* Reppy v. Reppy, 46 Mo. 571; Freeman v. Burnham, 36 Conn. 469;
Camp v. Scott, 14 Vt. 387 ; Marsh v. Davis, 24 Vt. 368.

? McGay v. Keilback, 14 Abb. Pr. 142.

® Andrews v. Jones, 10 Ala. 400.

* Clements vy. Eccles, 11 Ir. Eq. 229.

® Raffensberger v. Cullison, 28 Penn. 426.

® Miller y. Specht, 11 Penn. 449; Jackson v. Scott, 18 Johns. 94;
Botts v. Cozine, Hoff. 79 ; vide Bean v. Brackett, 34 N. H. 102.

7 Alexander v. Tams, 13 Ill. 221; Botts v. Cozine, Hof. 79.

® Stephens y. Sinclair, 1 Hill. 143.
276 WHAT TRANSFERS ARE WITHIN THE STATUTE.

FRravpuLent supement.—The forms of the law do
not constitute a protection against fraud, or give valid-
ity to a transfer when good faith is absent. The
statute was designed to leave property open to the free
course of the law and to keep impediments out of
the way of creditors. ‘It was foreseen that a debtor
knowing that the cause of a creditor and the means
afforded him for the recovery of his debt are held
sacred, might, and probably would, endeavor to take
protection under it and surround himself with the
formalities of the law and the rights of the creditor.
To guard against this and to prevent the law from
becoming the shield of fraud, the statute was extended
to every mode of transfer which is not bona fide” A
fraudulent judgment, execution, and sale thereunder pass
no title to the fraudulent vendee.” If a judgment or
execution is kept on foot, after it has been satisfied,
for fraudulent purposes, it comes within the statute as
effectually as if originally contrived to delay, hinder
or defraud creditors.

FRAUDULENT SALES UNDER ExECcUTIONS.—A_ valid
judgment and execution may be so used as to render a
sale thereunder fraudulent.* A sale so conducted by
fraud or improper contrivances as to enable a pur-
chaser to buy more property than is necessary for the
satisfaction of an execution is fraudulent,’ for an execu-

 

1 Yoder vy. Standiford, 7 Mon. 478.

2 Burnell v. Johnson, 9 Johns. 243; Christopherson v. Burton, 3 Exch.
160 ; s.c.18 L. J. Exch. 60 ; Boardman vy. Keeler, 1 Aik. 158; Metropoli-
tan Bank v. Durant, 7 C. E. Green, 35.

3 Gibbs v. Neely, 7 Watts, 305; Serfoss vy. Fisher, 10 Penn. 184 ; Floyd
v. Goodwin, 8 Yerg. 484.

4 Crary v. Sprague, 12 Wend. 41; Yoder v. Standiford, 7 Mon. 478 ;
Ward v. Lamberth, 81 Geo. 150.

° Kilby v. Haggin, 3 J. J. Marsh, 208.
WHAT TRANSFERS ARE WITHIN THE STATUTE. 277

tion can not be so used as to injure others and cover
the title to a larger amount of property than is neces-
sary to satisfy it. The fraudulent vendee gains no title
to the property, although an innocent creditor may by
the sale obtain a good title to the money. It is a good
sale, as to the creditor, to entitle him to receive the
money, and yet no sale as to the fraudulent vendee to
enable him to shelter the land from pursuit.’ <A sale
under a mortgage so conducted as to enable a pur-
chaser to buy the property at a price far below its value,
as a mode by which, under the form of a public sale,
the property may. become vested in him without an
adequate valuable consideration upon some secret con-
fidence for the mortgagor is also fraudulent and void.’

PURCHASE UNDER EXECUTION WITH DEBTOR'S MONEY.
—The intervention of the process of the law at the in-
stance of a creditor who is innocent of the guilty
scheme, and ignorant that he is made subservient to its
execution, cannot protect the intent with which other
parties act from investigation or confirm those parts of
the transaction by which they would acquire or reserve
valuable interests. The innocence of the judgment
creditor cannot purge their bad faith. If the debtor
advances the purchase-money at a sale under an execu-
tion, there is as against creditors no sale. There is no
distinction between a conveyance directly from the

 

* Morris v. Allen, 10 Ired. 203 ; Brodie v. Seagrave, Taylor, 144 ; Ham-
mock v. McBride, 6 Geo. 178; Stephens v. Barnett, 7 Dana, 257 ; Pen-
nington v. Chandler, 5 Harring. 394; White v. Trotter, 14 8. & M. 30;
Stovall v. Farmers’ Bank, 8 8. & M. 805; Duncan v. Forsyth, 3 Dana, 229;
Forrest v. Camp, 16 Ala. 642; Dick v. Cooper, 24 Penn. 217.

* Foulk v. M’Farlane, 1 W. & 8. 297.

5 Hawkins v. Alston, 4 Ired. Eq, 187; Overton v. Morris, 3 Port. 249 ;
Beeler v. Bullett, 3 A. K. Marsh. 280; Garland v. Rives, 4 Rand. 282;
Ansley v. Carlos, 9 Ala. 978; s.c. 8 Ala. 900; Roach vy. Deering, 9 8. & M.
316; Bickley v. Norris, 2 Brey. 252; Compton v. Perry, 23 Tex. 414.
278 WHAT TRANSFERS ARE WITHIN THE STATUTE.

debtor and one from the sheriff. In reality the con-
veyance is from the debtor through the sheriff. It
gives to the dealing the semblance of fairness but
nothing more than the semblance. It does not make
it fair though it increases the difficulty of detecting its
unfairness, but when detected, that avoids this as well
as other transfers however solemn. It is substan-
tially as much a sale znter partes as if there were
no intervention of the sheriff’ If the money is not
paid at the time but is furnished afterwards, the same
principle applies, as, for instance, if the plaintiff in the
execution is the purchaser at the sale and gives no
credit for the proceeds, but afterwards receives full
satisfaction of his debt in another way.? Although the
purchaser may advance a portion of the money, yet if
he takes a deed with the intent to claim the estate ab-
solutely as against other creditors, his own advances
cannot rescue it from the legal consequences of the
corrupt combination? A redemption of land sold
under an execution by virtue of a transfer of the right
to redeem, and a deed in the name of the grantee leaves
the title in the debtor if it is made fraudulently with
his money.*

 

* Morris v. Allen, 10 Ired. 203; Abney v. Kingsland, 10 Ala. 355;
Payne v. Craft, 7 W. & 8. 458; Hays v. Heidelberg, 9 Penn. 203; Griffin
v. Wardlaw, 1 Harper, 481; Dobson v. Erwin, 1 Dev. & Bat. 569 ; Miller
v. Fraley, 21 Ark. 22; Rankin v. Arndt, 44 Barb. 251 ; Stovall v. Far-
mers’ Bank, 8 8. & M. 805; Duncan v. Forsyth, 3 Dana, 229; Gutzwiller
v. Lackman, 23 Mo. 168 ; Brown v. M’Donald, 1 Hill Ch. 297; Cumming
v. Fryer, Dudley, 182 ; Ewing v. Gray, 12 Ind. 64 ; Marriott v. Givens, 8
Ala, 694; McBride v. Thompson, 8 Ala. 650.

? Schott v. Chancellor, 20 Penn. 195 ; s. c. 23 Penn. 68.

* Dobson vy. Erwin, 1 Dev. & Bat. 569; Burke v. Murphy, 27 Miss.
167; Ewing v. Gray, 12 Ind. 64.

* Legro y. Lord, 10 Me. 161.
CHAPTER XI.

VOLUNTARY CONVEYANCES.

DEFINITION OF VOLUNTARY CONVEYANCE—A volun-
tary conveyance is aconveyance without. any valuable
consideration. The adequacy of the consideration does
not enter into the question. The character of purchase
or voluntary is determined by the fact whether any-
thing valuable passes between the debtor and the
grantee as a consideration for the transfer. If there
is a valuable consideration, no matter how trivial or in-
adequate, the conveyance is not voluntary.1_ The doc.
trine of voluntary conveyances, moreover, applies only
to transfers that are made with actual good faith. If
there is an actual intent to hinder, delay, or defraud
creditors, on the part of the grantor, then the law re-
lating to fraudulent conveyances’ as distinguished from
mere voluntary conveyances is applicable.

InTenT oF DoNoR AaLonE.—It follows from the defi.
nition of a voluntary conveyance that the question
in regard to its validity or invalidity depends upon
the intent of the party making it, and not on the .
motive with which it is received. The proviso at the
end of the statute only extends to transfers made upon
a good consideration, and it has long been settled that
the only consideration which is good within the mean-

 

* Jackson v. Peek, 4 Wend. 300; Shontz v. Brown, 27 Penn. 123;
Washband v. Washband, 27 Conn. 424; Seward v. Jackson, 8 Cow. 406;
Dygert v. Remerschnider, 32 N. Y. 629; s, c. 89 Barb. 417.

* Gruber v. Boyles, 1 Brev. 266.
280 VOLUNTARY CONVEYANCES.

ing of the statute is a valuable consideration* It is
the innocent purchaser and not the innocent donee that
is protected. The only question, therefore, is yuo animo
the gift or grant is made. It is the motive of the giver
and not the knowledge of the acceptor that is to deter.
mine the validity of the transfer? If any evidence‘of
the grantee’s participation in the fraudulent intent of
the grantor were necessary, the mere acceptance of the
transfer would be sufficient, for the law would presume
such participation from this fact alone? A donee, who
sets up a voluntary conveyance when it would, if estab-
lished, defeat creditors, participates in and carries out
the intent of the donor.

THERE MUST BE A FRAUDULENT INTENT.—The word
“voluntary” is not to be found in the statute, and it is
perfectly clear from the preamble that its provisions
were pointed not at voluntary conveyances as such, but
against transfers concocted in fraud, and devised by a
debtor for the purpose of delaying and defrauding his
creditors.* It comprehends such conveyances as are
made of malice, fraud, covin, collusion, or guile, with

 

» Twyne’s Case, 3 Co. 80; Taylor v. Jones, 2 Atk. 600; Thomson vy.
Dougherty, 125. &R. 448.

* Partridge v. Gopp, 1 Eden, 163; s.c. 1 Ambl. 596; Thomson v.
Dougherty, 12 8. & R. 448; Mohawk Bank y. Atwater, 2 Paige, 54; Van
Wyck v. Seward, 18 Wend. 375; Swartz v. Hazlett, 8 Cal. 118 ; Trimble v.
Ratcliffe, 9 B. Mon. 511; Wood v, Hunt, 88 Barb. 302; Holmes v. Clark,
48 Barb, 237; Bennett v. McGuire, 58 Barb. 625; Wise v. Moore, 31 Geo.
148 ; Newman v. Cordell, 43 Barb. 448; M’Meekins v. Edmonds, 1 Hill
Ch. 288; Clark v. Chamberlain, 13 Allen, 257; Hicks v. Stone, 18 Minn.
484; Peck v. Carmichael, 9 Yerg. 825; Gamble v. Johnson, 9 Mo. 605.

* Belt v. Raguet, 27 Tex. 471.

“ Jones v. Boulter, 1 Cox, 288; Worthington y. Shipley, 5 Gill, 449;
Holloway v. Millard, 1 Madd. 414; Doe v. Routledge, Cowp. 705; Cado-
gan y. Kennett, Cowp. 432; Gale v. Williamson, 8 M. & W. 405; O’Con-
nor v. Bernard, 2 Jo. 654; Hamilton v. Greenwood, 1 Bay, 173; Thomson
v. Dougherty, 12 8. & R. 448; Clayton vy. Brown, 17 Geo. 217.
VOLUNTARY CONVEYANCES. 281

intent or purpose to delay, hinder, or defraud creditors.
This intent or purpose constitutes the contaminating
principle which will infect and vitiate the gift or con-
veyance and is required to bring a case within the act.
The inquiry in case of a voluntary conveyance must,
therefore, be in regard to the intent of the donor. If
there is no intent on his part to delay, hinder, or de-
fraud creditors, the conveyance is not within the statute ;
if, on the other hand, there is such an intent in the mak-
ing of the transfer, then it is void as against creditors.
In other words it is the intent and purpose with which
the grantor acts, that characterizes the conveyance and
renders it fraudulent under the statute. It is not con-
veyances, when a man owes, that are prohibited, but con-
veyances with the intent-or purpose to delay, hinder, or
defraud creditors! The statute itself does not say that
mere indebtedness shall be conclusive evidence or even
any evidence of the intent to defraud. The statute is
simply silent, both as to the kind of facts which shall be
admissible on this question, and as to the degree of
weight to which any facts which may be admissible
shall be entitled.’

Mope oF ESTABLISHING FRAUDULENT INTENT.—It is
not necessary, however, to prove an actual intent to de-
lay, hinder, or defraud creditors.’ Intent is an emotion
or operation of the mind, and can usually be shown
only by acts or declarations.* The motives which

 

1 Lyne v. Bank, 5 J. J. Marsh. 545; Clayton v. Brown, 17 Geo. 217;
Taylor v. Eubanks, 3 A. K. Marsh. 239; Mateer vy. Hissim, 3 Penn. 160;
Hunters vy. Waite, 3 Gratt. 26; Weed v. Davis, 25 Geo. 684.

2 Weed v. Davis, 25 Geo. 684.

4 Carlisle v. Rich, 8 N. H. 44; Freeman v. Pope, 5 L. R. Ch. 538; Norton
y. Norton, 5 Cush. 524; Potter v. McDowell, 31 Mo. 62; Jenkyn v. Vaughan,
3 Drew. 419; s. c. 25 L.J. (Ch.) 838; Smith v. Cherrill, 4 L. R. Eq. 390.

“ Babcock y. Eckler, 24 N. Y. 623.
282 VOLUNTARY CONVEYANCES.

actuate men in the affairs of life can in general be ascer-
tained only by an examination of their acts and all the
concomitant circumstances, and a deduction of the mo-
tive from them in accordance with those principles
which are shown by observation and experience to rule
human conduct! The intent to defraud need not, there-
fore, be made out by any direct proof of that particular
fact. In this as well as in other cases where the inten-
tion with which an act is done is to be ascertained, it
may be and usually is inferred or presumed from the
knowledge of other facts. Men do not often declare
their purpose when they are about to do an act injurious
to others, and there is no means of arriving at a knowl-
edge of the internal resolve or determination of the
actor, but by reasoning or drawing inferences from his
external conduct. To this kind of presumption resort
is commonly had, not only in civil but in criminal cases.
It is not a mere rule of law or of evidence in courts of
justice, but all men are in the habit of acting upon this
kind of presumption.’

INTENT A CONCLUSION oF LAw.—Every man is held
to know the law and the facts regarding his own affairs.°
The law also presumes that every man intends the
necessary consequences of his act, and if the act neces-
sarily delay, hinders, or defrauds his creditors, then the
law presumes that itis done with a fraudulent intent.‘

 

' Filley v. Register, 4 Minn. 391.

7 Van Wyck v. Seward, 18 Wend. 375.

® Swartz v. Hazlett, 8 Cal. 118; Christy v. Courtenay, 13 Beay. 96 ; Hun-
ters v. Waite, 3 Gratt. 26.

‘ Potter v. McDowell, 31 Mo. 62; O’Connor vy. Bernard, 2 Jo. 654; Free-
man y. Pope, 5 L. R. Ch. 588; Norton v. Norton, 5 Cush, 524;, Smith v.
Cherrill, 4 L. R. Eq. 390; French y. French, 6D. M. & G. 95; 8. c. 25 L
J. (Ch.) 612; Strong v. Strong, 18 Beay. 408; Freeman v. Burnham, 36
Conn, 469; Corlett v. Radcliffe, 14 Moore, P. C. 121; Reese River Mining
Co, v. Atwell, 7 L. R. Eq. 347; Van Wyck v. Seward, 18 Wend. 375;
Thompson vy. Webster, 7 Jur: (N. 8.) 581.
VOLUNTARY CONVEYANCES. 283

The intent is to be assumed from the act.1 The circum-
stances of the act, or rather the act itself, is conclusive
evidence of fraud, for no man is permitted to say that
he does not intend the necessary consequences of his
own voluntary act.

No unquiry INTO SECRET MoTIVEs.—The law will not
speculate about what is actually passing in the donor’s
mind,’ for the act need not be immoral or corrupt. The
law does not concern itself about the private or secret
motives which may influence the debtor. It does not
deal with his conscience. He may make a conveyance
with the most upright intentions, really believing that
he has a right to do so, and that it is his right and
duty to do it, and yet, if the transfer is voluntary and hin-
ders, delays, or defrauds his creditors, it is fraudulent.
His actual motives may be considerations of gen-
erosity and kindness,* or an insufficient consideration of
the amount of his indebtedness or the extent of his
assets,° or ignorance, or mistake, or misconception."
Apologies and excuses may be found to absolve him
from moral turpitude, but to these the law cannot
listen. It is vain to speculate upon his motives, or
adduce evidence of a fair purpose. The presumption
in such a case is conclusive, and against it all other
evidence is unavailing.® The debtor may have some

 

1 Freeman v. Pope, 5 L. R. Ch. 538,

? Babcock vy, Eckler, 24 N. Y. 623.

* Freeman v. Pope, 5 L. R. Ch. 538.

* Potter v. McDowell, 31 Mo. 62.

* Freeman v. Pope, 5 L. R. Ch. 538; Reese River Mining Co. v. Atwell,
TL. R. Eq. 347.

* Norton v. Norton, 5 Cush. 524; Black v. Sanders, 1 Jones (N. C.), 67;
Van Wyck v. Seward, 18 Wend. 375.

* Hunters v. Waite, 3 Gratt. 26.

® Hunters v. Waite, 3 Gratt. 26.
284 VOLUNTARY CONVEYANCES.

other purpose in view, but the intent to defraud is a
part and parcel of his act.’

PRINCIPLES OF THE LAW RELATING TO VOLUNTARY
convEYANcES.—It is upon these principles that the law
relating to voluntary conveyances rests. In the con-
struction of the statute, they are deemed within its
operation when they necessarily tend to defeat the just
rights of creditors, even though they are made bona fide
and with the intention of conferring a gratuitous benefit
upon some meritorious object. The law stamps a man’s
generosity with the name of fraud when it prevents
him from acting fairly towards his creditors, and
presumes fraud if he disables himself from paying his
debts. In such cases, the presumption of fraud arises
and may exist without the imputation of moral tur-
pitude? The principle is that persons must be just be
fore they can be generous, and that debts must be paid
before gifts can be made? This maxim finds as ready
a response in the breast of the moralist as in that of the
enlightened jurist, for it is based upon and has its sanc-
tion in the purest morality, the fountain of all law.‘

VoLUNTARY CONVEYANCE IS A BADGE OF FRAUD. —

‘A voluntary conveyance by a person who is indebted,
is a well-recognized badge of fraud,’ for its natural and

probable tendency is to delay, hinder and defraud credit-

 

Van Wyck v. Seward, 18 Wend. 375.

? O'Connor vy. Bernard, 2 Jo. 654,

5‘ Partridge v. Gopp, 1 Eden, 163; s.c. 1 Ambl. 596; Freeman v. Pope,
5 L, R. Ch. 538.

‘ Craig v. Gamble, 5 Fla, 430.

* Goodson vy. Jones, Styles, 446; Doe v. Routledge, Cowp. 705; Hoye
v. Penn, 1 Bland, 28; Jones v. Boulter, 1 Cox, 288; Woodson vy. Pool, 19
Mo. 340; Russell vy. Hammond, 1 Atk. 14; George v. Milbanke, 9
Ves. 189.
VOLUNTARY CONVEYANCES. 285

ors. The end in view must be to make the thing con-
veyed cease to be the property of him who conveys,
and become the property of him to whom it is con-
veyed, and consequently to withdraw it from the
creditors. There cannot be a conveyance, even one for
value, into which this intent does not enter. Hence,
the statute, after enacting that all conveyances made
with the intent to delay, hinder or defraud creditors,
shall be void, by the proviso excepts from the opera-
tion of that enactment conveyances made bona fide and
upon good, that is, valuable consideration. In such
case the price is substituted for the thing conveyed,
and the intent to withdraw the particular property,
although actually existing, is not prima facie injurious
to creditors. But a voluntary conveyance must be
founded upon a design to exempt the estate from the
claims of creditors, for the act of making the conveyance
can arise from no other intent, and inasmuch as no
other fund replaces the property so intended to be
exempted, that intent is injurious to the unsatisfied
creditors, and may amount to fraud within the statute.
To set up the transfer against creditors, if it is effectual,
may hinder and defeat them. To make title under it and
to set it up against all the world must be the very pur.
pose of the transfer. Ifthe title of the donee would defeat
creditors, the intention of making the transfer must be to
hinder, delay and defraud them.’ A voluntary con-
veyance is therefore considered as prima facie evidence
of an intent to delay, hinder or defraud creditors?

 

* O’Daniel v. Crawford, 4 Dev. 197.

* Worthington v. Shipley, 5 Gill, 449; Holloway v. Millard, 1 Madd.
414; Gale v. Williamson, 8 M. & W. 405; Thompson v. Webster, 7 Jur.
(N.8.) 581; 8.0. 4 D. & J. 600; 8. c. 4 Drew 628; Jackson y. Tim-
merman, 7 Wend. 436; Jackson v. Town, 4 Cow. 599; Thompson v. Ham-
mond, 1 Edw. Ch. 497; Lerow yv. Wilmarth, 9 Allen, 382; Bortrand v.
286 VOLUNTARY CONVEYANCES.

/ Burprn or proor.—The burden is thrown upon
the donee to establish the circumstances which will re-
pel the presumption of a fraudulent intent. The transfer
stands condemned as fraudulent unless the facts which
may give it validity are proved by him.’ This pre-

- sumption is not, however, conclusive, but may be met
and rebutted by proof that the donor was, at the time
of the conveyance, in prosperous circumstances and pos-
sessed of ample means to discharge all his pecuniary
obligations.” If no evidence is given to show that the

 

Elder, 23 Ark. 494; Winchester v. Charter, 12 Allen, 606; 8. c. 97 Mass.
140; s. c. 102 Mass. 272; Doyle v. Sleeper, 1 Dana, 531; Taylor v. Eu-
banks, 3 A. K. Marsh. 239; Wilson v. Buchanan, 7 Gratt. 334.

1 Baxter v. Sewell, 3 Md. 884; s.c. 2 Md. Ch. 447; Spindler v. Atkin-
son, 3 Md. 409; s.c. 1 Md. Ch. 507; Ellinger v. Crowl, 17 Md. 361;
Hunters v. Waite, 3 Gratt. 26; Crossley v. Elworthy, L. R. 12 Eq. 158;
Wilson v. Buchanan, 7 Gratt. 334; Woolston’s Appeal, 51 Penn. 452;
Crumbaugh v. Kugler, 2 Ohio St. R. 373; Reynolds v. Lansford, 16 Tex.
286; Raymond v. Cook, 31 Tex. 373.

? Hinde’s Lessee v. Longworth, 11 Wheat. 199; Salmon v. Bennett, 1 Ct.
525; Jacks v. Tunno, 3 Dessau. 1; Bennett vy. Bedford Bank, 11 Mass. 421;
Parker v. Proctor, 9 Mass. 390; Hamilton v. Greenwood, 1 Bay. 173;
Seward y. Jackson, 8 Cow. 406; 8. c. 5 Cow. 67; Teasdale v. Reaborne,
2 Bay. 546; Taylor v. Heriot, 4 Dessau. 227; Taylor v. Eubanks, 3 A. K.
Marsh. 239; Hudnal v. Wilder, 4 McCord, 294; s. c. 1 McCord, 227; Jack-
son y. Post, 15 Wend. 588; Jackson v. Town, 4 Cow. 599; Planck v.
Schermerhorn, 3 Barb. Ch. 644; Babcock v. Eckler, 24 N. Y. 623; Holmes
v. Clark, 48 Barb. 2387; Fulton vy. Fulton, 48 Barb. 581; Mayberry v. Neely,
5 Hump. 337; Norton v. Norton, 5 Cush. 524; Clayton v. Brown, 17
Geo. 217; Bird v. Bolduc, 1 Mo. 701; Cutter v. Griswold, Walk. Ch. 487;
Brackett v. Waite, 4 Vt. 8389; Chambers y. Spencer, 5 Watts, 404; Brice
v. Myers, 5 Ohio, 121; Hunters v. Waite, 3 Gratt. 26; Filley v. Register,
4 Minn. 891; Pomeroy v. Bailey, 48 N. H. 118; Bay v. Cook, 31 Il. 336;
Arnett v. Wanett, 6 Ired. 41; Jones v. Young, 1 Dev. & Bat. 352; Dodd
v. McCraw, 3 Eng. 83; Hall v. Edrington, 8 B. Mon. 47; Lane v. Kings-
berry, 11 Mo. 402; Trimble v. Ratciiff, 9 B. Mon. 511; Young v. White,
25 Miss. 146; Swartz v. Haslett, 8 Cal. 118; Weed v. Davis, 25 Geo. 684;
Parrish v. Murphree, 18 How. 92: Wilson v. Buchanan, 7 Gratt. 834; Pic-
quet v. Swan, 4 Mason, 443; Grimes v. Russell, 45 Mo. 481; Gridley v.
Watson, 53 Ill. 186; Pike v. Miles, 23 Wis. 164; Place v. Rhem, 7 Bush,
585; Frank y. Kessler, 30 Ind. 8; Worthington y. Shipley, 5 Gill. 449;
VOLUNTARY CONVEYANCES. 287

donor had ample means to meet his liabilities, then the
transfer must be deemed void as against creditors.’

VoLUNTARY CONVEYANCE BY ONE FREE FROM DEBT.
—By virtue of the absolute dominion which a man has
over his own property, he may make any disposition of
it which does not interfere with the existing rights of
others, and such disposition, if it is fair and real, will be
valid. To allow a man less than this would be to deny
him the power of disposing of his own according to his
good will and pleasure. There is no more objection to
a man’s giving away his property, if he is able to do it,
than there is to his selling it. If a man is entirely free
from debt, he may therefore make a voluntary convey-
ance in good faith He may, if he pleases, give away

 

Brown vy. Austin, 35 Barb. 341; 8. c. 22 How. Pr. 394; Peck vy. Brum-
magim, 31 Cal. 440; Leavitt v. Leavitt, 47 N. H. 829; Duhme vy. Young,
3 Bush. 343; King v. Thompson, 9 Pet. 204; Dick v. Hamilton, Deady,
822; Wilder v. Brooks, 10 Minn. 50; Hinman v. Parkis, 33 Conn.
188; Greenfield’s Estate, 14 Penn. 489; Woolston’s Appeal, 51 Penn. 452;
Townsend y. Maynard, 45 Penn. 198; Moritz v. Hoffman, 35 Ill. 553;
Carson v. Foley, 1 Iowa, 52; Whittier v. Prescott, 48 Me. 367; Hopkirk
v. Randolph, 2 Brock. 182; Howard vy. Williams, 1 Bailey, 575; Skarf v.
Soulby, 1H. & Tw. 426; s.c.1Me & G. 364; 8. c. 16 Sim. 344; 8.c. 19
L. J. (Ch.) 80; Bucklin v. Bucklin, 1 Keyes, 141; Borst v. Spelman, 4
N. Y. 284; Ellinger v. Crowl, 17 Md. 361.

* Ellinger v. Crowl, 17 Md. 361.

7 Sexton v. Wheaton, 8 Wheat. 229; Thompson v. Dougherty, 12 8. &
R. 448.

* Creed vy. Lancaster Bank, 1 Ohio St. R. 1.

‘Sexton v. Wheaton, 8 Wheat. 229; Goodson vy. Jones, Styles, 446;
Middlecome v. Marlow, 2 Atk. 519; Faringer v. Ramsay, 4 Md. Ch. 33;
Townsend v. Windham, 2 Ves. 1; Russell v. Hammond, 1 Atk. 14; Batters-
bee v. Farrington, 1 Swanst. 106; Bonny v. Griffith, 1 Hayes, 115; Benton
y. Jones, 8 Conn. 186; Stevens v. Olive, 2 Bro. C. C. 90; Glaister v.
Hewer, 8 Ves. 196; Sweeney v. Damron, 47 Ill. 450; Winebrinner v.
Weisiger, 3 Mon. 32; Baker v. Welch, 4 Mo. 484; Charlton v. Gardner,
11 Leigh, 281; Haskell v. Bakewell, 10 B. Mon, 106; Sagitary v. Hide, 2
Vern. 44.; Walker v. Burrows, 1 Atk. 93; Holmes v. Penney, 3 K. & G.
90; Roberts v. Gibson, 6 H. & J. 116; Phillips v. Wooster, 36 N. Y. 412;
8, c. 8 Abb. Pr. (N. 8.) 475.
ag,

288 VOLUNTARY CONVEYANCES.

all his property, if he does it fairly and openly. The
magnitude of the estate conveyed may awaken suspicion,
and strengthen other circumstances if they exist, but
taken alone it can not be considered as proof of fraud.
A man who makes such a conveyance necessarily im-
pairs his credit, and, if openly done, warns those with
whom he deals not to trust him too far."

VoLUNTARY CONVEYANCE BY ONE IN DEBT.—It is
only where a man is indebted that his power of vol-
untary alienation is restricted, for no man has such an
absolute power over his own property as that he can
alienate the same, when such alienation directly and neces-
sarily tends to delay, hinder or defraud his creditors, un-
less it is made on good consideration, and bona fide?
Where a creditor takes no specific security from his debtor,
he trusts him upon the general credit of his property, and
a confidence that he will not diminish it to his preju-
dice? A man is generally trusted, or obtains credit, in
proportion to the property he appears to own. When
creditors trust him, they look to his possessions as evi-
dence of his ability to pay, and as a fund from which,
if other resources of the debtor fail, they are to receive
their demands. After credit is obtained, for the debtor
to divest himself of property by giving it away, and
thereby rendering himself unable to pay his debts, or to
perform his contracts, is unjust, and a fraud upon his

 ereditors. It is a violation of the confidence which they

reposed in him.* It is true that they frequently look

 

* Sexton v. Wheaton, 8 Wheat. 229; Martin v. Olliver, 9 Humph. 561;
Kid v. Mitchell, 1 N. & M. 334; Stevens v. Olive, 2 Bro, C. C. 90; Dick v.
Hamilton, Deady, 322.

? Partridge v. Gopp, 1 Eden, 168; s. c. 1 Ambl. 596.

* Eppes v. Randolph, 2 Call. 103.

* Brice vy. Myers, 5 Ohio, 121,
VOLUNTARY CONVEYANCES. 289

to the debtor’s honesty, industry and skill in business,!
but the law cannot take these into account, for they do
not afford any means by which the payment of debts
can be enforced.

o

Mere INDEBTEDNESS.—It is not any and every in-
debtedness, however, that will amount to a prohibition
of the debtor’s power to make a gift. When there is
no actual intent to defraud, there can be no inference of
such an intent from the mere fact of a voluntary con-
veyance, unless the natural and inevitable consequence
of the act is to delay, hinder, or defraud the creditors
of the donor. The real and just construction of the
statute does not, therefore, warrant the proposition that
the existence of any debts at the time of the making of
the gift would be such evidence of a fraudulent inten-
tion as to induce and oblige a court to set aside a
voluntary conveyance, because there is scarcely any
man who can avoid being indebted to some amount.
He may intend to pay every debt as soon as it is con-
tracted, and constantly use his best endeavors and
have ample means to do so, and yet may be frequently,
if not always, indebted in some small sum. There may
be a withholding of claims contrary to his intention by
which he is kept indebted in spite of himself? To say
that the mere circumstance of a person’s being indebted
at the time, without reference to the comparative state
of his debts and of his means of paying them, is con-
clusive evidence of a fraudulent intention with respect
to his creditors, would be asserting that which is con-
trary to every day’s experience, and would be giving an
operation to the statute not to be warranted upon the

 

* Toulmin v. Buchanan, 1 Stew. 67.
? Townsend v. Westacott, 2 Beav. 340.

19
290 VOLUNTARY CONVEYANCES.

most liberal rules of construction in the suppression of
fraud.’ It is accordingly settled that mere indebtedness
alone is not sufficient to render a voluntary conveyance
void.”

> Taylor v. Eubanks, 3 A. K. Marsh. 239.

? Manders v. Manders, 4 Ir. Eq. 434; Skarf v. Soulby, 1 H.& Tw. 426;
s.c.1 Mc. & G. 364; 9.¢. 16 Sim. 344;8.¢c. 19 L. J. (Ch.) 80; Martyn y.
McNamara, 4 Dr. & War. 411; Wilson v. Howser, 12 Penn. 109; Posten v.
Posten, 4 Whart. 27; Izzard v. Izzard, 1 Bailey Ch. 228; Lyne v. Bank, 5
J. J. Marsh, 545 ; Dietus v. Fuss, 8 Md. 148; Lush vy. Wilkinson, 5 Ves. 384;
Burkey v. Self, 4 Sneed, 121; Dillard vy. Dillard, 8 Humph. 41; Smith vy.
Littlejohn, 2 Me. C. 362; Thacher y. Phinney, 7 Allen, 146; Brackett v.
Waite, 4 Vt. 389; Arnett v. Wanett, 6 Ired. 41; Smith v. Reavis, 7 Ired.
341; Martin v. Evans, 2 Rich. Eq. 368; Dewey v. Long, 25 Vt. 564; Miller
vy. Pearce, 7 W. & 8S. 97; Mateer v. Hissim, 3 Penna. 160; Hudnal vy,
Wilder, 4 McCord, 294; 8. c. 1 McCord, 227; Simpson y. Graves, 1 Riley,
Ch. 219; Kipp v. Hanna, 1 Bland, 26; Contra, Reade v. Livingston, 3 Johns.
Ch. 481; Bayard v. Hoffman, 4 Johns. Ch. 450; McLemore v. Knuckolls,
37 Ala. 662; Miller v. Desha, 3 Bush, 212; Stiles v. Lightfoot, 26 Ala. 443;
Spencer y. Godwin, 30 Ala. 855; Pinkston v. McLemore, 31 Ala. 308; Lowry
y. Fisher, 2 Bush, 70; Davis v. McKinney, 5 Ala. 719; Miller v. Thompson,
3 Port. 196 ; Cato v. Easley, 2 Stew. 214; Gilmore v. N. A. Land Co., 1 Pet.
C. C. 460; Cook v. Johnson, 1 Beasley, 51; Moore y. Spence, 6 Ala, 506 ;
Costillo v. Thompson, 9 Ala. 937; Lockyer v. De Hart, 1 Halst. 450; Hou-
ston v. Boyle, 10 Ired. 496 ; Enders v. Williams, 1 Met. (Ky.) 846; Hansen
vy. Buckner, 4 Dana. 251 ; Laurence v. Lippincott, 1 Halst. 473; Mitchell vy.
Berry, 1 Met. (Ky.) 602; Todd v. Hartley, 2 Met. (Ky.) 206; Bogard y.
Gardley, 4 8. & M. 302; Foote v. Cobb, 18 Ala, 585 ; High y. Nelms, 14 Ala,
350; Gannard v. Eslava, 20 Ala. 732; Swayze v. McCrossin, 138 S. & M.
817; Spencer vy. Godwin, 30 Ala. 355; Thomas v. De Graftinreid, 17 Ala.
602; vide Johnson v. West, 43 Ala. 689. In Russell v. Hammond, (1 Atk, 14)
Lord Hardwicke said, “I have hardly known one case where the person
conveying was indebted at the time of the conveyance that has not been
deemed fraudulent.” and in Townsend v. Windham, (2 Ves. 1) he said, “T
know of no case where a man indebted at the time makes a mere voluntary
conveyance to a child without consideration and dies indebted, but that
it shall be considered as part of his estate for the benefit of his creditors,”
‘These remarks have given rise to considerable controversy, but they ny
be explained by the fact that in his time the main controversy was whether
voluntary conveyances were within the statute. By some the doctrine
was called artificial. Jones v. Boulter, 1 Cox, 288. The main point was to
establish the principle, and his language should be construed with a view
VOLUNTARY CONVEYANCES. 291

INDEBTEDNESS MUST BE CONSIDERED IN CONNECTION
WITH DONoR’s EsTATE.—Indebtedness is only one cir.
cumstance from which an inference of an intent to de-
fraud may be drawn,' and must be considered in con-
nection with the donor’s estate.’ If the debts are fully
secured,’ or are fully provided for in the conveyance,‘
the gift is in the same condition as if the donor were
entirely free from debt.

Comparative InpEBTEDNESS.— The true rule by
which the fraudulency or fairness of a voluntary con-
veyance is to be ascertained, in this respect, is founded
on a comparative indebtedness, or in other words on
the pecuniary ability of the donor at the time to
withdraw the amount of the donation from his estate
without the least hazard to his creditors, or in any
material degree lessening their then prospects of pay-_
ment.© In other words the fraudulent intent is to be
collected from the comparative value and magnitude of

 

to the facts of the case and the controversy of the times. It must be re-
membered that alh the cases in which Lord Hardwicke holds this language
are cases where there was no other property out of which the existing
debts could be satisfied. These were all cases in equity where bills had
been filed to have satisfaction out of the estate voluntarily settled. Howard
v. Williams, 1 Bailey, 575; Kipp v. Hanna, 2 Bland, 26; Hopkirk v. Ran-
dolph, 2 Brock. 132.

2 Richardson v. Smallwood, Jac, 552; Cadogan v. Kennett, 2 Cowp.
432; Lyne v. Bank of Ky. 5 J. J. Marsh. 545; Skarf v. Soulby, 1H. & Tw.
426; 8. c.1 Mc, & G. 864.

2 Dietus v. Fuss, 8 Md. 148.

® Stephens v. Olive, 2 Bro. C. C. 90; Manders v. Manders, 4 Ir. Eq. 484;
Pell vy. Tredwell, 5 Wend. 661; Johnson v. Zane, 11 Gratt. 552; Hester v.
Wilkinson, 6 Humph. 218.

4 George v. Millbank, 9 Ves. 189; Kid v. Mitchell, 1 N. & M. 334; Hester
y. Wilkinson, 6 Humph. 215 ; Vance v. Smith, 2 Heisk, 343.

° Kipp v. Hanna, 2 Bland. 26 ; Bonny v. Griffith, Hayes, 115; Taylor v.
Heriot, 4 Dessau. 227; Babcock v. Eckler, 24 N. Y. 623 ; Taylor v. Eubanks,
3 A. K. Marsh. 239.
292 VOLUNTARY CONVEYANCES.

the gift! It must be determined from all the circum-
stances in each particular case, whether there was an
intent on the part of the donor in making the con-
veyance to delay, hinder, or defraud his creditors.” A
gift of such inconsiderable value as to come under the
denomination of a present, made under circumstances
entirely free from suspicion, has never been hunted up
by a creditor and claimed as a part of the donor's es-
tate. A riding horse, wedding clothes, jewels, an instru-
ment of music, or any other gift which is usual in the
particular locality, come strictly, when made by a man
of unquestionable solidity, within that class of dona-
tions which are denominated presents.?

Insotvency.—If the donor at the time is indebted to
the extent of insolvency, the conveyance is void. A
gift by a person unable to pay his debts, so directly and
inevitably tends to delay and hinder creditors, and so
plainly violates the moral duty of honesty that the least
regard to fair dealing and integrity renders it neces-
sary to pronounce it void. Such a transaction is not to
be looked on only as a means by which the intent to de-
fraud may be inferred. The act is altogether incom-
patible and irreconcilable with a contrary intent. It is
an act of fraud in itself. If the donor is insolvent, the
only question is whether or not a conveyance is volun-
tary, and if it is voluntary it is void as against creditors.

 

? Partridge v. Gopp, 1 Eden, 163; s. c. Ambl. 596; Jacks vy. Tunno, 3
Dessau. 1.

? Thompson v. Webster, 7 Jur. (N. 8.) 531; s. c. 4 Drew. 628 ; Clements
vy. Eccles, 11 Ir. Eq. 229.

* Hopkirk v. Randolph, 2 Brock. 182.

“Morgan v. M’Lelland, 3 Dev. 82; Wellington y. Fuller, 38 Me. 61;
Kimmel v. McRight, 2 Penn. 38; Stickney v. Borman, 2 Penn. 67;
Shontz v. Brown, 27 Penn. 123; Carl v. Smith, 28 Leg. Int. 366; Burck-
myer v. Mairs, Riley, 208; Dulany y. Green, 4 Harring. 285; Walcott v.
VOLUNTARY CONVEYANCES. 293

A conveyance which leaves the grantor insolvent stands
on the same footing as a gift by a person who is in-
solvent at the time of making it.’ If for instance, a
person having 10,000/., and owing that amount, gives
away 5,000/., it is clearly a fraud. If the effect is to
withdraw any portion of the property so that there
does not remain sufficient to enable creditors to pay
themselves, the conveyance is clearly within the statute.
A transfer ‘ee all the donor’s property is for this reason
fraudulent.? A universal donee is bound to pay the
debts of the donor existing at the time of the donation,
or to abandon the property thus given to him.*

DEBTOR NEED NOT BE INSOLVENT.—It is not neces-
sary, however, that insolvency should either be proved

 

Almy, 6 McLean, 23; Doughty v. King, 2 Stockt. 396; Barnard y. Ford,
L. R. 4 Ch. 247; Peat v. Powell, Ambl. 387; Sargent v. Chubbuck, 19
Iowa, 37; Harvey v. Steptoe, 17 Gratt. 289 ; Caswell v. Hill, 47 N. H. 407;
Reppy v. Reppy, 46 Mo. 571; Gardner v. Baker, 25 Iowa, 343; Bennett v.
McGuire, 58 Barb. 625; Raymond v. Cook, 31 Tex. 373; Worthington v.
Shipley, 5 Gill, 449; Manhattan Co. v. Osgood, 15 Johns. 162; Buist v.
Smyth, 2 Dessau. 214; Lyne v. Bank, 5 J. J. Marsh. 545; Beckham v. Sec-
rest, 2 Rich. Eq. 54; Arnold v. Bell, Hayw. 396; Caston v. Cunningham,
8 Strobh. 59; Godell v. Taylor, Wright, 82; Fones v. Rice, 9 Gratt. 568;
Doughty v. King, 3 Stock. 396 ; Craig v. Gamble, 5 Fla. 430; Gray v. Tap-
pan, Wright, 117; O’Brien v. Coulter, 2 Blackf. 421 ; Rundle v. Murgatroyd,
4 Dall. 304; Reynolds v. Lansford, 16 Tex. 286; Burpee v. Bunn, 22 Cal.
194; Catchings v. Manlove, 39 Miss. 655; Everett vy. Read, 3 N. H. 55;
Humbert v. Methodist Church, Wright, 218; Welcome v. Batchelder, 23
Me. 85 ; Carlisle v. Rich, 8 N. H. 44; ode Clements v. Eccles, 11 Ir. Eq.
229; Bond v. Swearingen, 1 Ohio, 182; Gale v. Williamson, 8 M. & W.
405; Alexander v. Todd, Bond, 175.

* Shears v. Rogers, 3B. & A. 362; Smith v. Cherrill, L. R. 4 Eq. 390;
Jackson vy. Bouley, Car. & M. 97; Freeman y. Burnham, 36 Conn. 469 ; Coates
y. Gerlach, 44 Penn. 48 ; Ammon’s Appeal, 63 Penn, 284; Clayton v. Brown,
30 Geo. 490; Stewart v. Rogers, 25 Iowa, 395.

? French y. French, 6D. M. & G. 95; 8. ¢. 25 L. J. (Ch.) 612; Taylor
v. Heriot, 4 Dessau. 227; Chambers v. Spencer, 5 Watts. 404.

5 Harlan y. Barnes, 5 Dana, 219.

4 Porche y. Moore, 14 La. An. 241.
294 VOLUNTARY CONVEYANCES.

or presumed in order to render a voluntary conveyance
void If the indebtedness is so large that the effect of
the transfer is to defraud creditors, the conveyance will
be void If insolvency takes place shortly after the
making of the conveyance, that is enough.’ Solvency
is generally to be judged of by the event. If the debtor
continues embarrassed, and, becoming more and more
involved, ends in total and acknowledged insolvency,
this is sufficient evidence of his insolvency, as to the
existing creditors whose debts remain unpaid. The
only exception to this rule is where a man is perfectly
solvent at the time of the transfer and is afterward
rendered insolvent through some unexpected loss, or
something which could not have been reasonably reck-
oned on at the time of the conveyance.> Insolvency at
the time of the rendition of a judgment, always raises
a presumption of insolvency at the time of the gift.

Burpen or proor.—lf the debts are ultimately paid,"
or the donor accumulates other property sufficient to

 

? Parrish v. Murphree, 13 How. 92; Thompson v. Webster, 7 Jur. (N.
8.) 581; s.c. 4 Drew. 628; Jones v. Slubey, 5 H. & J. 372; Jacks v.
Tunno, 3 Dessau. 1; Parkman v. Welch, 19 Pick. 231 ; Simpson v. Graves,
1 Riley Ch. 219; Swartz v. Hazlett, 8 Cal. 118; Denison v. Tatersall, 18
L. T. (N. 8.) 3083; Townsend v. Westacott, 2 Beav. 340; Potter v. Mc-
Dowell, 31 Mo. 62; Richardson v. Smallwood, Jac. 552; Wilson v. Bu-
chanan, 7 Gratt. 334; Worthington v. Bullett, 6 Md. 172; s. c. 2 Md. Ch.
99; vide Lush vy. Wilkinson, 5 Ves. 384; Norcutt v. Dodd, Cr. & Ph. 100;
Martyn v. M’Namara, 4 Dr. & War. 411.

? Holmes v. Penney, 3K. & J. 90.

* Crossley v. Elworthy, L. R. 12 Eq. 158; Townsend v. Westacott, 2
Beay. 340; Wilson v. Buchanan, 7 Gratt. 334.

* Izzard y. Izzard, 1 Bailey Ch. 228; Richardson v. Rhodus, 14 Rich.
95; Caston vy. Cunningham, 3 Strobh. 59.

* Crossley v. Elworthy, 12 L. R. Eq. 158; Howard v. Williams, 1
Bailey Ch. 575.

° Carlisle v. Rich, 8 N. H. 44.

” Davis v. Herrick, 37 Me. 397; Smith v. Reavis, 7 Ired. 341.
VOLUNTARY CONVEYANCES. 295

meet them when judgments are obtained upon them,! the
conveyance will generally be valid. It is only when

‘debts, either prior or subsequent, remain unpaid that
any question can arise concerning its validity. The )
party who sets up a voluntary conveyance in opposition /
to the claims of pre-existing creditors, is required to show |
that the means of the donor, independent of the prop- |
erty conveyed, were abundantly ample to satisfy all his
creditors.” The inquiry is limited to the circumstances
of the donor at the time of the conveyance.? The proof
must show not merely a sufficiency of other property to
pay the demand of the creditor who assails the transfer,
but a sufficiency to pay all the debts then owing by the
grantor.* Liabilities,» demands arising from a tort, and
judgments rendered in another State,” must be taken
into consideration. Debts which are secured by the
promise of a co-partner, who subsequently pays them,
and liabilities as an indorser when there is no proof
that the persons for whom he was liable were unable to
pay the respective sums for which he was responsible,’
can not be taken into account. The price bid at a sher-
iff’s sale a long time subsequent is not conclusive evi-
dence of the value of the property.”

Proor must BE cLEAR.—To rebut the presumption \

 

1 Smith v. Reavis, 7 Ired. 341.

2 Jones v. Taylor, 2 Atk. 600.

5 King v. Thompson, 9 Pet. 204; Posten v. Posten, 4 Whart. 27.

4 Birely v. Staley, 5 G. & J. 432.

* Hanet vy. Dundass, 4 Penn. 178; Manhattan Co. v. Osgood, 15 Johns.
162; Trimble v. Ratcliff, 9 B. Mon. 511; vide Black v. Sanders, 1 Jones
(N. C.), 67; Houston v. Boyle, 10 Ired. 496.

* Crossley v. Elworthy, 12 L. R. Eq. 158.

7 Clark v. Depew, 25 Penn. 509. ® Hitt v. Ormsbee, 12 Ill. 166.

° King v. Thompson, 9 Pet. 204; vide Van Wyck v. Seward, 18.
Wend. 375.

10 Posten v. Posten, 4 Whart, 27.
296° VOLUNTARY CONVEYANCES.

of fraud, the proof must be clear, full, and satisfactory.’
If there is a reasonable doubt of the adequacy of the
grantor’s means, then the voluntary conveyance must
fall, for the effect of it is to delay and hinder his
creditors.” Itis incumbent on the donee to show a case
not only without taint, but free from suspicion.? The
condition of the donor must be shown to be such that
a prudent man with an honest purpose and a due regard
to the rights of his creditors could have made the gift.*
This is to be ascertained not merely by taking an ac-
count of the grantor’s debts and credits, and striking a
balance between them, but by an examination of the
general state of his affairs.

ORDINARY COURSE oF EVENTS.—If, in the ordinary
course of events, the donor’s property turns out to
be inadequate to the discharge of his debts, the
presumption of fraud remains, although the property
reserved may have been deemed originally adequate to
that purpose.’ If he is unable to meet his debts in the
ordinary course prescribed by law for their collection,
or is reduced to that situation where an execution
against him would be unavailing, the conveyance is
void,’ for a solvency which the law cannot employ in
the payment of the debt of an unwilling debtor, is not

 

* Henderson vy. Dodd, 1 Bailey Ch. 138; Miller v. Wilson, 15 Ohio,
108; Young v. White, 25 Miss. 146.

? Worthington v. Bullett, 6 Md. 172; s.c. 3 Md. Ch. 99; Williams vy.
Banks, 11 Md. 198; Seward v. Jackson, 8 Cow. 406; Henderson vy. Dodd,
1 Bailey Ch. 188; Howard y. Williams, 1 Bailey, 575; Swartz v. Hazlett,
8 Cal. 118; Richardson vy. Smallwood, Jac. 552.

* Hopkirk v. Randolph, 2 Brock. 132.

‘ Parrish v. Murphree, 23 How. 92.

* Shears v. Rogers, 3 B. & A. 362; Hunters v. Waite, 3 Gratt. 26.

° Blakeney v. Kirkeley, 2 N. & M. 544; Madden y. Day, 1 Bailey, 337;
Howard v. Williams, 1 Bailey Ch. 575; McClenachan’s Case, 2 Yeates, 503.

™ Potter v. McDowell, 31 Mo. 62,
nm

VOLUNTARY CONVEYANCES. 297

distinguishable by any valuable difference from insol-
vency. The term solvency, in cases of this kind, implies
as well the present ability of the debtor to pay out of
his estate all his debts, as also such attitude of his
property as that it may be reached and subjected by
process of law to the payment of such debts.t The
probable necessary and reasonable demands for the sup-
port of the donor and his family must therefore be
taken into account and deducted.? The question of sol-
vency, moreover, depends not upon the nominal value
of unsalable goods, but upon whether enough can be
realized from the property to pay his liabilities.

Hazarps or Business.—Although the property re-
served is equal in nominal value to the donor’s existing
indebtedness, that does not constitute such sufficient
security for his debts as his creditors are entitled to
require. They have the right to expect satisfaction of
their debts out of his property, and he has no right, in
law or morals, to throw upon them the loss which must
necessarily occur in converting it into money <A
scanty provision for the payment of debts will not, for
this reason, render the conveyance valid.* Property
worth $7,250 has been deemed insufficient to meet debts
amounting to $6,848, and property worth $48,000 has
been held not to be ample to meet debts to the amount
of $42,000.° The mere production of deeds of convey-
ance, unaccompanied by any proof of the existence of
the property conveyed, and the title of the grantor

 

1 Eddy v. Baldwin, 32 Mo. 369.

? Meyer v. Mohr, 19 Abb. Pr. 299.

® Churchill v. Wells, 7 Cold. 864; Parrish v. Murphree, 13 How. 92.

4 Salmon vy. Bennett, 1 Conn, 525.

5 Black v. Sanders, 1 Jones (N. C.) 67.

®* Crumbaugh v. Kugler, 2 Ohio St. R. 378; Miller v. Wilson, 15 Ohio,

108,
298 VOLUNTARY CONVEYANCES.

thereto, or his possession thereof, or the possession
thereof by the grantee, is wholly insufficient to estab-
lish the solvency of the donor.

PROPERTY MUST BE ACCESSIBLE— Whether the prop-
erty reserved is what will be deemed ample, does not
depend entirely on the amount and value, as the real
end to be accomplished is that the conveyance shall not
deprive creditors of the means of collecting their debts.
Hence, the nature and situation of the property is to be
regarded as well as the amount and value, in view of the
facilities that the creditors may have for the collection
of their debts.? The property must be so circumstanced
that neither delay nor difficulty, nor expense, need be
encountered before it can be made available to creditors,
The donor must not only have ample means remaining
to discharge all his obligations, but these means must
be readily and conveniently accessible to his creditors?
If the remaining property is heavily incumbered,* or
consists of the life-estate of a person advanced in years,°
or in feeble health,’ or of property that cannot be taken
on execution,’ or of property which is in its nature very
unstable and cannot be easily traced,’ or of depreciating
commercial paper,’ it is not sufficient. The property
must also be in the State where the donor resides. If

 

? Birely v. Staley, 5 G. & J. 432.

* Church vy. Chapin, 35 Vt. 223.

* Worthington y. Bullett, 6 Md. 172; s.c. 8 Md. Ch. 99; Mohawk
Bank v. Atwater, 2 Paige, 54.

* Worthington y. Bullett, 6 Md. 172; s.c. 3 Md. Ch. 99; Hunters v.
Waite, 3 Gratt. 26.

° Williams y. Banks, 11 Md. 198.

° Strong v. Strong, 18 Beav. 408.

* Van Wyck vy. Seward, 18 Wend. 375; Henderson v. Lloyd, 3 F. & F.
7; Hunters v. Waite, 3 Gratt. 26; Church v. Chapin, 35 Vt. 223.

8 Blakeney v. Kirkeley, 2 N. & M. 544,

° McClenachan’s Case, 2 Yeates, 503.
VOLUNTARY CONVEYANCES. 299

it is in some other country where creditors can not
reach it, the gift may be set aside.t

DIrFERENCE BETWEEN THAT GIVEN AND THAT RE-
SERVED.—If a party possessed of real estate and also of
other assets consisting of choses in action gives away
the former and leaves his creditors to resort to the
latter, where their remedy may be precarious and diffi-
cult, and the property at all events less readily and
conveniently accessible, the conveyance of necessity
operates to hinder and delay creditors in the collection
of their debts.2, When the donor’s assets, however, con-
sist only of debts and book accounts, and he takes a
small sum to buy land, which he causes to be conveyed
as a gift to another, the dona fides of the transaction
and the sufficiency of his remaining assets to satisfy
existing creditors must be judged by the character and
nature of the property which he had at the time of
making the gift? When the property is not conven-
iently accessible to creditors, the conveyance is liable to
be set aside, although the donor at the time of the gift
is not only not insolvent, but may have enough prop-
erty left in some form or another to satisfy all his
debts.*

SoLVENCY DETERMINED BY RESULT.—The voluntary
conveyance must be such as a prudent and just man
would make with a proper regard to his condition and
circumstances, and a due consideration of all future

 

1 Heath v. Page, 63 Penn. 280; Thompson v. Webster, 7 Jur. (N.8S.)
581; French y. French, 6 D. M. & G. 95; 8. c. 25 L. J. (Ch.) 612;
Church v. Chapin, 35 Vt. 223.

? Worthington v. Bullett, 3 Md. Ch. 99; Warner v. Dove, 33 Md. 579.

5 Warner v. Dove, 33 Md. 579.

* Thompson v. Webster, 7 Jur. (N. 8.) 581; French y. French, 6 D.
M. & G. 95; 8. c. 25 L. J. (Ch.) 612.
300 VOLUNTARY CONVEYANCES.

events which prudence and integrity can foresee.*
Existing creditors have no ground for complaint if
they stand by and suffer subsequent creditors to sweep
away the reserved property by obtaining judgments
and executions before them,? and on the other hand the
donor’s solvency must not depend upon success in the
business in which he is engaged,’ or the skillful manage-
ment of his affairs* The risk and hazard of his
speculations or of his financial arrangements can
not either legally or honestly be thrown upon his
creditors.

AcciwrEnts.—The law, however, provides against
fraud and the intention to defraud, and not accidents
or calamities. The gift, therefore, will be valid although
the property may ultimately turn out to be inadequate,
if this is occasioned by some accident which human
foresight could not guard against,’ as by losses in trade,°
or by fire," or by storms® The ordinary fluctuations in
the value of property, however, occasioned by the
condition of mercantile affairs can not be ranked
among casualties. These fluctuations are constantly
taking place, and men must calculate upon and be pre-

 

1 Swartz v. Hazlett, 8 Cal. 118.

? Higleberger v. Kibler, 1 Hill Ch. 118; Howard v. Williams, 1 Bailey,
575 ; Richardson v. Rhodus, 14 Rich. 95.

’ Carpenter v. Roe, 10 N. Y. 227; Crossley v. Elworthy, 12 L. R. Eq.
158.

4 Bertrand v. Elder, 23 Ark. 494; Young v. White, 25 Miss. 146.

° Jacks v. Tunno, 3 Dessau. 1; Brackett v. Waite, 4 Vt. 889; Cham-
bers v. Spencer, 5 Watts, 404; Mateer v. Hissim, 3 Penna. 160; Smith v.
Yell, 8 Ark. 470; Pepper v. Carter, 11 Mo. 540; Howard vy. Williams, 1
Bailey Ch. 575; vide O’Daniel v. Crawford, 4 Dev. 197.

° Howard v. Williams, 1 Bailey Ch. 575.

™ Pepper v. Carter, 11 Mo. 540.

* Brackett v. Waite, 4 Vt. 389; vide Chamberlayne v. Temple, 2 Rand.
384.
VOLUNTARY CONVEYANCES. 301

pared for them. The same principle applies to losses
that occur from the wastefulness and improvidence of
the donor. These are matters that prudence and sagacity
can foresee, and the risk can not therefore be thrown
upon the creditors.’

THERE NEED BE NO sEcRET tTrustT.—It has been
said that when a person who is in debt makes a gift
the law intends a trust between them, as that the donee
will in consideration of such voluntary conveyance re-
lieve the donor and not see him suffer want,> and that
this presumed trust affords the evidence of an intent to
defraud.* It is well settled, however, that it is not
necessary to establish any secret trust.” The convey-
ance will be invalid, although there is a real transfer
between the parties, if the circumstances are such as to

raise a conclusive presumption of an intent to de-
fraud.

 

? Tzzard v. Izzard, 1 Bailey Ch. 228; Wilson v. Buchanan, 7 Gratt. 334.
In Clements v. Eccles (11 Ir. Eq. 229), a case was put by way of illustra-
tion of a loss of the reserved property by defect of title, and it was inti-
mated that such loss would fall on the creditors, but on principle this can
not be so. The donor ought to be held to know the character of his title
to his land.

? Hunters v. Waite, 3 Gratt. 26; Spirett v. Willows, 3 D. J. & 8.
293 ; 8.0. 84 L. J. (Ch.) 365; 8.0. 11 Jur. (N. 8.) 70. The case of Spi-
rett v. Willows has been treated as one of actual fraud (vide Freeman y,
Pope, 5 L. R. Ch. 538), but the reported facts of the case do not sustain
the statement, nor did the court so consider it. Moreover it can well
stand as a case of constructive fraud. The indebtedness was £370. The
amount reserved was £720. The donor’s discharge in bankruptcy was
suspended for three years on account of unjustifiable extravagance. It was
a case of sheer improvidence and not distinguishable in principle from
Hunters v. Waite, and there is not a single case in the whole reports that
would support a voluntary conveyance under such circumstances.

* Twyne’s Case, 3 Co. 80.

4 Kipp v. Hanna, 2 Bland, 26.

* Partridge v. Gopp, 1 Eden, 163; s.c. Ambl. 596 ; Emery vy. Vinall,
26 Me. 295.
302 VOLUNTARY CONVEYANCES.

WHEN VOLUNTARY CONVEYANCE Is vaLipD.—lf the
debtor’s circumstances are such that he may lawfully
make a gift, he may give his property to a stranger,’ as
well as to those to whom he is bound by ties of kin-
ship or natural affection, and on the other hand the
mere fact that the donor is under a moral obligation to
the donee, such as what is called the debt of nature
from a parent to his child, will not render the convey-
ance valid, for his obligations to his creditors are para-
mount. When a man’s circumstances, however, are
such as to enable him to discharge both, it is his duty
to do so.” A man of wealth feels himself bound to ad-
vance his children, when they leave him to act for them-
selves and to perform their own parts on the great
theatre of the world. His own feelings and public
opinion would equally reproach him should he withhold
from them those aids which his circumstances and their
education and station in life may seem to require. A
reasonable advancement under such circumstances would
obviously be a provision required by justice and the
common sense of mankind.? A person engaged in
hazardous pursuits often regards it also asa sacred duty
to his wife and children to set apart, by conveyance for
their use, a certain and reasonable portion of his estate
when he is free from the shackles of debt, and thereby
keep them somewhat secure from the ills of poverty to
which those engaged in the traffic of buying and sell-
ing are peculiarly hable.* The statute was not intended
to interfere with such transfers or to disturb the ordi-
nary and safe transactions in society made in good faith,

 

+ Holloway v. Millard, 1 Madd. 414; Speise v. M’Coy, 6 W. &S.
485.

? Brice v. Myers, 5 Ohio, 121.

® Hopkirk v. Randolph, 2 Brock, 132.

‘ Haskell vy, Bakewell, 10 B. Mon. 106,
VOLUNTARY CONVEYANCES. 3803

and which at the time subjected creditors to no hazard.
No fraudulent intent, no intent to delay, or in any
manner to injure creditors, ean be inferred from such
conveyances. The consequence can not be appre-
hended from the acts, and therefore the acts can not
be considered as constructively fraudulent.. They must
be regarded as fair dispositions of property, a fair exer-
cise of the power of ownership, and not within the
statute.

PaRtIaLLy voLunTaRy.—It is manifest that convey-
ances may be partially as well as entirely voluntary.
When there is no actual intent to defraud, a valuable
consideration though inadequate will sustain the trans-
fer in a court of law.’ The rule in equity, however, is
different. A court of equity can do full justice to all
parties by allowing the deed to stand as security for
the consideration actually paid, and appropriating the
balance to the payment of the vendor’s debts. If
there is any difference between the price paid and the
actual value of the property, courts of equity will there-
fore regard the conveyance to the extent of the differ-
ence as voluntary. As between the vendor and the
vendee the courts will not weigh the consideration in
golden scales, but the rule is different where creditors

 

? Jackson v. Peek, 4 Wend. 300.

? Worthington v. Bullett, 6 Md. 172; 5. c. 3 Md. Ch. 99; Matthews v.
Feaver, 1 Cox, 278; Wright v. Stannard, 2 Brock. 311; Corlett v. Rad-
cliffe, 14 Moore, P. C. 121; Van Wyck v. Seward, 18 Wend. 875 ; Robin-
son v. Stewart, 10 N. Y. 189; M’Meekins, v. Edmonds, 1 Hill Ch. 288 ;
Norton y. Norton, 5 Cush. 524; Trimble v. Ratcliffe, 9 B. Mon. 511;
Crumbaugh vy. Kugler, 2 Ohio St. R. 873; Herschfeldt v. George, 6 Mich.
456; Church vy. Chapin, 35 Vt. 223; Hopkirk y. Randolph, 2 Brock. 132;
vide, Union Bank y. Toomer, 2 Hill Ch. 27; Turnley v. Hooper, 2 Jur.
(N. 8.) 108.
304 VOLUNTARY CONVEYANCES.

are concerned.’ It is difficult to say what will amount
to an inadequate consideration, and no general rule has
been or can be laid down. Each case must depend
upon its own circumstances. The consideration, how-
ever, must be palpably less than the real value of the
property or what it would bring at public sale in the
market,’ or what it might reasonably be supposed that
the vendor would have taken from any other person?

 

» Matthews v. Feaver, 1 Cox, 278; vide Nunn vy. Wilsmore, 8 T. R.
521; Grogan v. Cooke, 2 Ball & B. 233; Middlecome v. Marlow, 2 Atk.
519; Penhall v. Elwin, 1 Sm. & Gif. 258; Thompson v. Webster, 7 Jur.
(N. 8.) 531; Blount v. Doughty, 3 Atk. 481; Taylor v. Heriot, 4 Dessau.
227; Copis v. Middleton, 2 Madd. 410; Wright v. Stannard, 2 Brock.
811.

? Worthington v. Bullett, 6 Md. 172 ; 8. c. 3 Md. Ch. 99.

’ Black v. Cadwell, 4 Jones, (N. C.) 150; Arnold v. Bell, 1 Hay.

(N.C.) 396.
CHAPTER XII

NUPTIAL SETTLEMENTS.

ANTE-NUPTIAL SETTLEMENT.—In the absence of all
fraud, a party, before marriage, has the right to insist on
such terms as may be deemed PEPE as a consideration
and inducement for the marriage,’ and a contract so
made is, in contemplation of law founded upon a valuable
consideration. The indissoluble nature of the marriage
contract, the alteration which it effects in the personal
condition of the parties, and the nature of the rights,
duties and disabilities which arise from it, render the
consideration. of marriage 1mportant and valuable, and
constitute the parties purchasers for a valuable consid-
eration.? Consequently if it is made in good faith, and
without notice of fraud to the parties who take under it,
it is unimpeachable by creditors.’ Both parties must
concur in or have cognizance of any intended fraud, in
order to render the settlement void. If the settlor alone
intends a fraud, and the other party has no notice of it,
the settlement will be valid.

 

1 Hardey v. Green, 12 Beay. 182.

* Magniac v. Thompson, 7 Pet. 848; Frazer v. Thompson, 1 Giff. 49.

* Magniac v. Thompson, 7 Pet. 348; Partridge v. Gopp, 1 Eden, 163;
s. c. Ambl. 596 ; Campion y. Cotton, 17 Ves. 264; Cadogan v. Kennett, 2
Cowp. 482; ee parte McBurmie,1 D.M. & G, 441; Andrews y. Jones,
10 Ala. 400; Eppes v. Randolph, 2 Call. 103; Coutts v. Greenhow, 2
Munf. 363; 8.0.4 H. & M. 485; Hazelinton v. Gill, 3 T. R. 620; Bunnel
v. Witherow, 29 Ind. 123; Tunno vy. Trezevant, 2 Dessau. 264; Frank’s
Appeal, 59 Penn. 190; Jones’ Appeal, 63 Penn. 324; Croft vy. Arthur, 8
Dessau. 223; Bank y. Marchand, T. U. P. Charlt. 247,

20

‘
306 NUPTIAL SETTLEMENTS.

Spreciric MARRIAGE.—The contract, however, must
be made with reference to a specific marriage, and not
a mere future possible state or condition of matrimony ;
as where a father promises a daughter that if, at any
after period of life, she shall choose to enter into wed-
lock, he will in that event, and upon its occurrence, give,
convey or pay to her specified money or property. In
such a case there is no mutuality, either of promise or
consideration. The agreement of the father is founded
upon no undertaking or promise of the daughter, and
upon no valuable consideration, but is merely for a
future contingent advancement of the daughter. It is
not, in the eye of the law, in consideration of marriage.'
If, however, there is a specific marriage in contempla-
tion, a mere legal contract, and promise made in good
faith, to marry another, is a valuable consideration. In
reference to the question of the sufficiency and value
of the consideration, and consequently of the validity
of the title, there is no real and substantial difference
between a marriage formally solemnized and a binding
and obligatory agreement which has been fairly and
truly, and above all suspicion of collusion, made to form
such connection, and enter into that relation.’

ConTEMPoRANEOUS errt.—A reasonable gift, made
contemporaneously with a marriage, and accompanied
with a delivery of possession, has strong claims to be
considered as a gift in consideration of the marriage,
for it is not usual to convey property by deed which
passes by delivery, nor to use the solemnity of delivery
expressly in consideration of marriage, although that
may be the real consideration.® The gift, however,

 

1 Willes v. Cole, 6 Gratt, 645.

* Smith v. Allen, 5 Allen, 454.

®* Hopkirk vy. Randolph, 2 Brock, 182 ; Toulmin v. Buchanan, 1 Stew. 67;
Andrews vy. Jones, 10 Ala. 400.
NUPTIAL SETTLEMENTS. 307

must be contemporaneous with the marriage.’ A deed
made prior to the marriage cannot be connected with
the marriage articles, when there is no reference in the
deed to them.’

STATEMENTS IN ARTICLES.—It is not necessary that
the marriage articles should contain an enumeration of
the property which is subject to the settlement.’
Chattels, stocks, books, plate, jewelry, and merchandise
may be settled as well as land* The articles may
stipulate that all the property to which either of the
parties may become subsequently entitled shall also be
subject to the settlement.” A stipulation that the hus-
band and wife shall take the profits jointly will not
render the property liable to his creditors.

To wHom Eextenps.—The consideration of marriage
extends to the wife’s children by a former marriage,’
the husband’s children by a former marriage,’ and chil.
dren of the parties born before the marriage? When
the articles go beyond the immediate objects of the
marriage, and provide for collateral relatives, the settle-
ment as to them, not being supported by the marriage,

 

? Hayes v. Jones, 2 Pat. & H. 583; vide Toulmin v. Buchanan, 1 Stew.
67.

? Croft v. Arthur, 3 Dessau, 2238.

’ Jarman y. Woolloton, 3 T. R. 618; Arundell v. Phipps, 10 Ves.
139.

* Campion v. Cotton, 17 Ves. 264; Cadogan v. Kennett, 2 Cowp. 432;
Bank v. Marchand, U. P. Charit. 247.

° Hardey v. Green, 12 Beav. 182.

* Scott v. Gibbon, 5 Munf. 86.

" Newstead vy. Searles, 1 Atk. 165; Ithell v. Bean, 1 Ves. Sr. 215; Ball
v. Burnford, Prec. Ch. 113.

® Doe v. Routledge, 2 Cowp. 705; vide Bank v. Marchand, T. U. Charlt,
247.

® Coutts v. Greenhow, 2 Munf. 363; s. c. 4 H. & M. 485.
308 NUPTIAL SETTLEMENTS.

is purely voluntary. The consideration of marriage
runs through the whole settlement, and supports all its
provisions, those which relate to the husband as well
as those which relate to the wife. If, therefore, the
settlement is valid when it is made, no event afterwards
can alter it. If a settlement is made by a father upon
the marriage of his son, on the husband and wife for
their lives, and afterwards upon the children, and the
wife dies without any issue, the settlement will be valid
against the father’s creditors. The law is the same in
the case of a stranger.’

Goop Faita.—A man who is indebted may, on his
marriage, make a settlement of his’ property, provided
the settlement is made honestly and in good faith,® and
the wife’s knowledge of his indebtedness will not alone
render it void.* It is, however, clearly established that
marriage cannot be made the means of committing
fraud. If there is an intent to delay, hinder or de-
fraud creditors, and to make the celebration of a mar-
riage a part of a scheme to protect property against
the rights of creditors, the consideration of marriage
cannot support the settlement.® The question in every
case is whether the settlement is a bona fide transaction
or whether it is a trick and contrivance to defeat cred-
itors.®

 

? Smith vy. Cherrill, L. R. 4 Eq. 390.

? Nairn v. Prowse, 6 Ves. 752.

* Bulmer v. Hunter, L. R. 8 Eq. 46; s. o. 88 L. J. (Ch.) 548; 8. c. 20
L. T. (N. 8.) 942; ev parte McBurnie, 1 D. M. & G. 441; Betts v. Union
Bank, 1 H. & G. 175.

*Campion vy. Cotton, 17 Ves. 264; Frazer y%. Thompson, 1 Giff. 49;
Richardson v. Horton, 7 Beay. 112.

* Colombine v. Penhall, 1 Sm. & Gif. 228; ex parte Mayor Mont. 292;
Bulmer v. Hunter, L. R. 8 Eq. 46; 8. c. 88 L. J. (Ch.) 648; 8. c. 20 L.T.
(N. 8.) 942.

° Cadogan v. Kennett, 2 Cowp. 432.
NUPTIAL SETTLEMENTS. 309

Wire’s particrpation.—The wife, however, must
be connected with the fraud to make the settlement
invalid." Fraud may be imputed to her either from
direct co-operation in the original design at the time of
its concoction, or from constructive co-operation by
carrying the desion into execution after she has received
notice of it. The execution of the settlement after she
has received notice of a fraudulent design renders her
a participator and party to the fraud. It necessarily
involves combination and participation. Notice of the
fraud may be inferred from the facts and circumstances
of the settlement? If the amount of property settled
is extravagant, or grossly out of proportion to the
station and circumstances of the husband, this of itself
is sufficient notice of the fraud.*

How FAR VALUABLE.—Marriage is sometimes put
on the footing of a pecuniary consideration, and it is
said that if a person sells his property for a full consid-
eration, and squanders the money, his creditors have
no redress. From this it is inferred that marriage
will afford the same protection. But in the case of a
bona fide sale, the seller parts with his property, the
purchaser parts with his money, and the law will
presume that the object is the payment of his debts.
But the purchaser is not answerable for the misappli-
cation of the money. It is not so with a marriage
settlement. The seller does not, in fact, part with his
property. It is still intended for his own enjoyment.

 

1 Campion vy. Cotton, 17 Ves. 264; Bulmer v. Hunter, L. R. 8 Eq. 46;
s. c. 88 L. J. (Ch.) 543; s.c. 20 L. T. (N.8.) 942.

> Magniac v. Thompson, 7 Pet. 348.

5 Colombine v. Penhall, 1 Sm. & Gif. 228; Bulmer v. Hunter, L. R. 8
Eq. 46; 8. c. 88 L. J. (Ch.) 548.

4 He parte McBurnie, 1 D.M. & G. 441; Croft v. Arthur, 3 Dessau.
223, ;
310 NUPTIAL SETTLEMENTS.

Neither does he receive in return anything that will
satisfy his creditors. His wife will not be received in
payment of his debts. It is not to be understood that,
because marriage is equivalent to a pecuniary consider-
ation, it is to be considered in the nature of an actual
purchase. A settlement is not intended as the price of
the wife, but as a provision for the family. It must,
therefore, be reasonable, and with a due regard to the
rights of others. Although a marriage contract cannot
be estimated in dollars and cents, yet some idea can be
formed of what would constitute a comfortable pro-
vision for a family at the commencement of married
life. And in forming a judgment of the dona fides of
the transaction, an inquiry will be made as to the value
of a man’s property, the amount of his debts, the gen-
eral state of his property, and the value of that belong-
ing to his wife; and if the provision is found greatly
disproportionate to his means, having regard to all
these circumstances, it cannot fail to excite a suspicion
of fraud. Although marriage is a good consideration,
and a settlement founded thereon may prevail even
against creditors, it is not necessarily so under all cir-
cumstances, and to any extent. The reasonableness of
it may as well be inquired into as the adequacy of price
in a case of pecuniary consideration.’

IN PURSUANCE OF ANTE-NUPTIAL AGREEMENT.—A
post-nuptial settlement, made in good faith, in pursuance
of written marriage articles, is valid. The wife becomes
a creditor of her husband by virtue of the marriage
article, and if the settlement is made in part perform-
ance of the articles, dona jide and without fraud, it is

 

‘Simpson v. Graves, 1 Riley Ch. 232; ex parte McBurnie, 1 D. M.
& G. 441; Croft v. Arthur, 3 Dessau. 223; vide Bank vy. Marchand, T. U.
Charlit. 247.
NUPTIAL SETTLEMENTS. 311

simply a discharge of a legal obligation, and stands on
the same footing as a preference to any other creditor.’
Such a settlement may be made on the eve of the ren-
dition of a judgment against the husband, but it must
be real, and not merely colorable.?

Nor IN coNFORMITY WITH ARTICLES.—A_ settlement
which goes beyond the marriage articles’ or does not
correspond with any precision to them‘ is a voluntary
settlement. When the articles stipulate that the hus-
band shall furnish a house in a suitable manner, as he
shall judge fit and proper, he has a discretion which he
may exercise in a reasonable manner, according to his
station and associations in life. If he furnishes it ex-
travagantly, or at a useless and wanton expense, he does
not act within the true spirit and meaning of the ar.
ticles, and commits a fraud on his creditors as to the
excess.” The mere recital of the existence of articles in
the settlement is not binding upon the creditors, and
they may show that no such articles were made at the
time of the marriage.®

PaRoL ANTE-NUPTUAL AGREEMENT.—The statute of
frauds’ enacts that no action shall be brought to charge
any person upon any agreement made upon considera-
tion of marriage, unless the agreement upon which such
action shall be brought, or some memorandum or note

 

* Magniac v. Thompson, 7 Pet. 8348; Lockwood v. Nelson, 16 Ala. 294 ;
Brunsden y. Stratton, Prec. Ch. 520.

? Magniac vy. Thompson, 7 Pet. 348.

* Saunders v. Ferrill, 1 Ired. 97; Shaw v. Jakeman, 4 East. 207.

* Reade v. Livingston, 3 Johns, Ch. 481; Blow v. Maynard, 2 Leigh,
29; Simpson v. Graves, 1 Riley Ch. 232; Shaw v. Jakeman, 4 East, 207.

® Magniac v. Thompson, 7 Pet. 348.

* Battersbee v. Farrington, 1 Swanst. 106 ; Reade v. Livingston, 3 Johns,
Ch. 481; Simpson y. Graves, 1 Riley Ch. 219.

7 29 Car. II, c. 3, 9.4.
312 NUPTIAL SETTLEMENTS.

thereof shall be in writing, and signed by the party to
be charged therewith, or some other person thereunto
by him lawfully authorized. A parol agreement in con-
sideration of marriage constitutes a demand that can-
not be enforced, because it is within the prohibition of
this act, and consequently a settlement made in con-
sideration of such an agreement is without any legal
consideration and voluntary... Neither marriage,’ nor a
written acknowledgment after marriage,* nor a represen-
tation at the time of the marriage, that a post-nuptual
settlement will be valid,* can give validity to the settle-
ment when otherwise void, or exempt it from the opera-
tion of the statute. Representations which are not
inserted in the marriage contract, and to which no ref-
erence is made in the settlement cannot be enforced
and will not uphold a subsequent settlement.” A
settlement in consideration of a previous marriage,
without the recital of any articles is a voluntary settle-
ment.®

 

* Dygert v. Remerschnider, 82 N. Y. 629; s. c. 39 Barb. 417; Warden
v. Jones, 2 D. & J. 76; 8.¢. 27 L. J. (Ch.) 190; Dundas v. Dutens, 2
Cox, 235; 8, c. 1 Ves. Jr. 196; Spurgeon vy. Collier, 1 Eden, 55; Murphy v.
Abraham, 15 Ir. Eq. (N. 8.) 871; Reade v. Livingston, 3 Johns. Ch. 481;
Smith v. Greer, 3 Humph. 118; Randall v. Morgan, 12 Ves. 67; Hayes v.
Jones, 2 Pat. & H. 583; Andrews v. Jones, 10 Ala. 400; Wood v. Savage,
2 Doug. (Mich.) 316; Borst v. Corey, 16 Barb. 186 ; Izzard y. Izzard, 1 Bai-
ly Ch. 228; Simpson v. Graves, Riley Ch. 219; vide Loeffes v. Lewen,
Prec. Ch. 370; Hall v. Light, 2 Duvall, 358.

2 Warden vy. Jones, 2D. G. & J. 76; 8. c. 27 L. J. (Ch.) 190.

* Randall v. Morgan, 12 Ves, 67; Reade v. Livingston, 3 Johns. Ch. 481;
Jones y. Henry, 3 Litt, 427.

‘;Warden v. Jones, 2D.G.& J. 76; 8.0. 27 L. J. (Ch.) 190; Simpson
v. Graves, 1 Riley Ch. 219.

* Murphy v. Abrahams, 15 Ir. Eq. (N. 8.) 871; Saunders v. Ferrell, 1
Tred. 97.

° Beaumont v. Thorp, 1 Ves. 27; Reade v. Livingston, 3 Johns. Ch.
481; Deubell v. Fisher, R. M. Charlt. 36.
NUPTIAL SETTLEMENTS. 313

Ix consmpERATION oF PorTIoN.—If after marriage a
settlement is made by the husband upon his wife in
consideration of a portion or a sum of money advanced
by another person, such settlement will be good, and
for a valuable consideration.1_ Whether the money is
paid before or after the settlement is not material if the
settlement is made in consideration of the payment or
the promise to pay.” If a father secures the portion
which his daughter is entitled to under her mother’s
marriage settlement upon his own estate, and the por-
tion so secured is subsequently paid to the husband,
it is a valuable consideration for a settlement.’

Deep oF sEpaRation.—lIf a feme covert is entitled,
on account of the misconduct of her husband, to obtain
a divorce, and to have a proper allowance from him, she
may, instead of strictly prosecuting that right, accept a
maintenance from him, and the settlement will be up-
held against creditors* On account of the disability
which at common law prohibited the husband and his wife
from making a valid contract between each other, a deed
of separation is always made through the intervention
of a trustee.® A covenant by the trustee to indemnify
the husband against any claim for alimony’ or the debts
which the wife may contract after the separation is a
valuable consideration for the settlement.’ If the

 

1 Wheeler v. Caryl, Amb. 121; Nunn y. Wilsmore, 8 T. R. 521; Stile-
man v. Ashdown, 2 Atk. 477; Jones vy. Marsh, Cas. temp. Talb. 64; Anon.
Prec. Ch. 101; Russell vy, Hammond, 1 Atk. 18; Ramsden vy. Hylton, 2
Ves. Sr. 804; Gardner v. Painter, Cas. temp. King, 65; Brown v. Jones, 1
Atk. 188.

2 Brown v. Jones, 1 Atk. 188.

* Wheeler v. Caryl, Amb. 121.

4 Hobbs v. Hull, 1 Cox, 445.

° Legard v. Johnson, 3 Ves. 352.

* Worrall v. Jacob, 3 Mer. 256.

™ Stephens y. Olive, 2 Bro. C. C. 90; Worrall v. Jacob, 3 Mer. 256;
Wells v. Stout, 9 Cal. 479; King v. Brewen, 2 Bro. C. C. 93 note; Har-
groves v. Meray, 2 Hill Ch. 222.
314 NUPTIAL SETTLEMENTS.

trustee does not execute the deed of separation,’ or
omits to indemnify the husband against any claim for
alimony or the debts of the wife,’ the settlement is with-
out a valuable consideration to support it.

ConTRACT BETWEEN HUSBAND AND wire.—A husband
may, either with’ or without* the intervention of a trustee,
enter into a contract with his wife for a valuable con-
sideration, and a settlement made in pursuance of such
an agreement will be good against prior as well as sub-
sequent creditors. Such settlements, however, are
always watched with considerable jealousy, on account
of the relative situation of the parties, and the con-
venient cover they afford to a debtor to protect his prop-
erty and impose upon his creditors.®

Wrrr’s property.— Whether the consideration is
valuable will depend upon its character. By the com-
mon law the husband by marriage became the purchaser
and owner of his wife’s personal property, and obtained
the right to reduce her choses in action to possession,
and appropriate them for his own benefit. Her personal
property and money, therefore, do not at common law
constitute a valuable consideration for a promise made
by him to her.’ If her choses in action have been re-

 

* Legard vy. Johnson, 3 Ves. 352; Wells v. Stout, 9 Cal. 479.

* Cropsey v. McKinney, 30 Barb. 47; Fitzer v. Fitzer, 2 Atk. 511;
Nunn y. Wilsmore, 8 T. R. 521; Clough v. Lambert, 10 Sim, 174.

* Bank v. Lee, 18 Pet. 107; Arundell v. Phipps, 10 Ves. 139.

* Schaffner v. Reuter, 37 Barb. 44; Wickes v. Clarke, 8 Paige, 161; Babcock
v. Eckler, 24 N, Y. 623; Stockett v. Holliday, 9 Md. 480 ; Dygert v. Remer-
schnider, 82 N. Y. 629; s. c. 89 Barb, 417; Bullard v. Briggs, 7 Pick. 533;
Bank v. Brown, Riley Ch. 181; s. c. 2 Hill Ch. 558; Miller v. Tolleson,
Harp. Ch. 145.

° Blow v. Maynard, 2 Leigh. 29.

° Harvey v. Alexander, 1 Rand. 219; Farmers’ Bank v. Long, 7 Bush,
837 ; Lewis v. Caperton, 8 Gratt. 148; Coates v. Gerlach, 44 Penn, 43; Lyne
v. Bank, 6 J. J. Marsh. 545; Bank v. Mitchell, Rice Eq. 389; Beach v.
White, Walk, Ch. 495; Briggs v. Mitchell, 60 Barb. 288.
NUPTIAL SETTLEMENTS. 315

duced to possession, they belong absolutely to him, and
do not constitute a valuable consideration any more
than her personal property.

A wiIFr’s cHosEs In action—A chose in action
which is not reduced to possession remains the property
of the wife, and does not, vest in the husband by the
marriage. The marital right does not extend to the
property while a chose inaction, but enables the husband
to reduce it to possession, and thereby acquire it. The
property becomes his not upon the marriage, but upon
the fact of his obtaining possession. Her choses in action
therefore, may be settled upon her, and will also consti-
tute a valuable consideration for a contract with her?
So, also, if her money is in the hands of another who
withholds it, until the husband makes a provision for
her, it will support the settlement.’

Rieur to serrtement.—If her property is only re-
coverable in equity,* or has come to her during coverture

 

* Wylie v. Basil, 4 Md. Ch. 327; Whittlesey v. McMahon, 10 Conn. 137;
Pierce v. Thompson, 17 Pick. 391; Hurdt v. Courtenay, 4 Met. (Ky.) 189;
Briggs v. Mitchell, 60 Barb. 288; Lewis v. Caperton, 8 Gratt. 148; Barker
v. Woods, 1 Sandf. Ch, 129; Hatch v. Gray, 21 Iowa, 29.

* Blake v. Jones, 1 Bailey Ch. 141; Gallego y. Gallego, 2 Brock. 285;
Pierce v. Thompson, 17 Pick. 391; Athey v. Knotts, 6 B. Mon. 24; Gore
v. Waters, 2 Bailey, 477; Nims v. Bigelow, 45 N. H. 843; Wheeler v. Emer-
son, 44 N. H. 182; Ready v. Bragg, 1 Head. 511; Gasset v. Grout, 4 Met.
486 ; McCauley v. Rodes, 7 B. Mon. 462; Mechanic Bank v. Taylor, 2 Cranch,
C. C. 507; Ryan v. Bull, 3 Strobh. Eq. 86.

* Brown y. Jones, 1 Atk. 188; Middlecome v. Marlow, 2 Atk. 519; Pott
v. Todhunter, 2 Coll. 76; Gassett v. Grout, 4 Met. 486; Bank v. Brown,
Riley Ch. 131; Wickes v. Clarke, 8 Paige, 161; Ryan v. Bull, 3 Strobh. Eq.
86 ; Poindexter v. Jeffries, 15 Gratt. 363; Kennedy v. Head, 82 Geo. 629;
vide Robinett’s Appeal, 36 Pern. 174.

‘ Wheeler v. Caryl, Amb. 121; Legard v. Johnson, 8 Ves. 352; Moore
v. Rycault, Prec. Ch 22; Bank v. Brown, Riley Ch. 181; Poindexter v.
Jeffries, 15 Gratt. 363; Marshall v. McDaniel, 8 B. Mon. 175; Spirett v.
Willows, 3 D. J. & 8. 293; Barnard v. Ford, L. R. 4 Ch. 247.
316 NUPTIAL SETTLEMENTS.

by gift or inheritance,’ she is entitled to a settlement
which a court of equity will invariably enforce in favor
of the wife, and even the children of the marriage,
against the husband and all claiming under him, such as
assignees or creditors. The same circumstances which
would induce a court of equity to compel a settlement
by the husband or those claiming under him, or in his
right will operate to uphold a settlement already made
to the same extent that would’be required if one should
be directed to be made under the view of the court, for
the parties may do voluntarily what the law would com-
pel them to do. The settlement should be reasonable
and adequate, and may be of a part or the whole of the
property according to the circumstances.’ If it is reason-
able at the time itis made, it will not be impaired by sub-
sequent acquisitions.®

Wirr’s sEPARATE ESTATE—Her land* or separate
estate’ constitutes a valuable consideration for a settle-
ment. If the husband’s creditors levy upon his life estate
in her lands, she may convey a portion of the ground to
them as a consideration to induce them to unite with her

 

? Wickes v. Clarke, 8 Paige, 161; Hinton v. Scott, Moseley, 386; Smith
v. Greer, 3 Humph. 118; Bank v. Brown, 2 Hill Ch. 558; McCauley v.
Rodes, 7 B. Mon. 462.

* Poindexter v. Jeffries, 15 Gratt. 363.

* Marshall v. McDaniel, 8 B. Mon. 175.

* College v. Powell, 12 Gratt. 372 ; Clerk v. Nettlestrip, 2 Levinz,
148; Latimer vy. Glenn, 2 Bush. 5385; Wilson v. Ayer, 7 Me. 207.

° Savage v. O'Neil, 43 N. Y. 298; Stockett v. Holliday, 9 Md. 480;
Bank y. Lee, 13 Pet. 107; Cottle v. Tripp, 2 Vern. 220; Taylor v. Heriot,
4 Dessau. 227; Ward v. Shallet, 2 Ves. Sr. 16; Bank v. Brown, Riley Ch.
131; Acraman vy. Corbett, J. & H. 410; Butler v. Ricketts, 11 Iowa, 107 ;
Woodworth v. Sweet, 44 Barb. 268; Kendrick v. Taylor, 27 Tex. 695.
Lormore v. Campbell, 60 Barb. 62; Butterfield v. Stanton, 44 Miss. 15;
Sweeney v. Damron, 47 Ill. 450; McLaurie v. Partlow, 53 Ill. 340; White
v. Sansom, 3 Atk. 410,
NUPTIAL SETTLEMENTS. 317

in a transfer of the residue to a trustee for her benefit.
If her father makes a mistake as to the effect of a gift of
land to her and her husband, they may unite in a sur-
render, and the property may then be given to her? If
her husband converts her separate property to his own
use without her consent, this will be a good consider-
ation for a transfer by him.’ So also in case he pur-
chases property with her separate funds, and takes the
title in his own name, he may subsequently convey it to

her, for this is only what the law would compel him to
do.*

ConTINGENT RIGHT oF DOWER.—The release of a
contingent right of dower is a valuable consideration.®
A release without any promise,’ or upon a mere expec-
tation’ of a recompense, or a mere promise to release,
is not a valuable consideration, but if the relinquish-
ment is made on the faith of a promise, the transfer
may be subsequent.®

Nor wirnovt contract.—An estate previously receiv-
ed by the husband in the right of his wife is not a good

 

? Hubbard v. Remick, 10 Me. 140.

? Barncord v. Kuhn, 36 Penn. 383,

* Wiley v. Gray, 36 Miss. 510.

4 Wilson v. Sheppard, 28 Ala. 623.

® Marshall v. Hutchinson, 5 B. Mon. 298; Jones v. Boulter, 1 Cox, 288;
Unger v. Price, 9 Md. 552; Ellinger v. Crowl, 17 Md. 861; Wright v.
Stannard, 2 Brock. 311; Bullard v. Briggs, 7 Pick. 583; Quarles v. Lacy,
4 Munf. 251; Harrison v. Carroll, 11 Leigh, 476; Bank v. Brown, Riley
Ch, 131; Harvey v, Alexander, 1 Rand. 219; College v. Powell, 12 Gratt.
372; Hollowell v. Simonson, 21 Ind. 898; Cottle v. Tripp, 2 Vern. 220;
Ward v. Crotty, 4 Met. (Ky.) 59; Low vy. Carter, 21 N. H. 433; Nims v.
Bigelow, 45 N. H. 343.

* Woodson vy. Pool, 19 Mo. 840; Taylor v. Moore, 2 Rand. 563.

7 Lewis v. Caperton, 8 Gratt. 148.

® College v. Powell, 12 Gratt. 372.
818 ° NUPTIAL SETTLEMENTS.

consideration for a subsequent conveyance to her. Even
the appropriation of her separate estate with her knowl-
edge and consent will not constitute a good considera-
tion unless there is an agreement by him to repay the
money so appropriated? If a settlement can not
be made without her aid, her joining in it will con-
stitute a good consideration for a settlement in her
favor?

How Far vatw.—When a settlement is valid, the
increase* and property purchased with the proceeds
of the estate settled are within its protection.» <A de-
fective settlement which is otherwise valid is good in
equity against the creditors.®

PURCHASES BY FEME COVERT.—The possession of the
wife is prima facie the possession of the husband, and
consequently raises a presumption of ownership in him.
In case of a purchase by a wife during coverture, the
burden is upon her to prove distinctly that she paid
for the thing purchased with funds that were not
furnished by the husband. Evidence that she pur-
chased amounts to nothing unless it is accompanied by
clear and full proof that she paid for it with her own
separate funds—not that she has the means of paying—
but that she in fact paid. In the absence of such proof

 

* Lyne v. Bank, 5 J.J. Marsh. 545; Hurdt. vy, Oourtenay, 4 Met, (Ky.)
139; Farmers’ Bank v. Long, 7 Bush, 337.

* Kuhn v. Stansfield, 28 Md. 210; Blow v. Maynard, 2 Leigh, 29;
Wickes v. Clarke, 8 Paige, 161.

* Harman v. Richards, 10 Hare, 81; Acraman v. Corbett, 1 J. & H.
410; Russell vy. Hammond, 1 Atk, 13.

‘ Hazelinton v, Gill, 3 T. R. 620.

* Jarman vy. Woolloton, 8 T. R. 618; Blanchard y. Ingersoll, 4 Dall.
305.

° Brown v. Jones, 1 Atk. 188,
NUPTIAL SETTLEMENTS. 319

the presumption is that her husband furnished the
means of payment. This rule applies to purchases of
real as well as personal estate.’

 

* Winter v. Walter, 37 Penn. 155 ; Gamber v. Gamber, 18 Penn. 368 ;
Keeney v. Good, 21 Penn. 349; Walker v. Reamy, 36 Penn. 410; Black v.

Nease, 37 Penn. 433; Mercer v. Miller, 5 Fla. 277; Parvin v. Capewell, 45
Penn, 89.
CHAPTER XIII.

SUBSEQUENT CREDITORS.

Riguts at common taw.—In Twyne’s Case! it is
said that by the common law an estate made by fraud
can be avoided only by him who has a former right,
title, interest, debt or demand, as a sale in open market
by covin will not bar aright which is more ancient, and
a covinous gift will not defeat an execution in respect
of a former debt, but he who hath right, title, interest,
debt, or demand more puisne can not avoid a gift or
estate precedent by the common law. It will be ob-
served, however, that these remarks, as far as they affect
subsequent creditors, are mere dicta and not supported
by any decided case. It is, moreover, difficult to per-
ceive upon what ground they rest. Even at the com-
mon law fraud vitiates every transaction into which it
enters, and fraud accompanied with damage always
gives a right of action. These well recognized prin-
ciples are sufficient to protect even subsequent creditors.
The better doctrine, therefore, even in this respect, is
that the principles and rules of the common law as now
known and understood would have attained every end
proposed by the statute.’ The principles, however, had
not been previously recognized and applied, and the
statute thus had the effect of introducing new prin-
ciples.

 

* 3 Co. 80.
* Cadogan vy. Kennett, 2 Cowp. 482.
SUBSEQUENT CREDITORS. 321

Wirntin statute.—The statute embraces not merely
conveyances made with intent to delay, hinder or de-
fraud creditors, but conveyances made with the intent
to delay, hinder or defraud others. ‘The word “ others”
is inserted to take in all manner of persons as well
creditors, after as before the conveyance whose debts
should be defrauded. The enacting clause is still stronger
because the word “creditors” is not mentioned, but
general words “ person or persons.” The words of the
statute seem to be so general in order to take in all
persons who shall be any ways hindered.’ It is accord-
ingly well settled, that if a party makes a conveyance
of his property with the express intent to become in-
debted to another, and to defraud him of his debt by
means of this artifice, such subsequent creditor may
contest and by proof defeat the transfer, although he
was not a creditor of the grantor at the time of the
conveyance. *

Kap or intent.—The intent which will in general
make such a transfer void, is an actual intent to defraud
and must be proved,® and the burden of proof rests
upon the subsequent creditor* It is not necessary,
however, to prove such intent by direct and express

 

* Taylor v. Jones, 2 Atk. 600.

? Littleton y. Littleton, 1 Dev. & Bat. 327; Ridgeway v. Underwood,
4 Wash. C. C. 129; Howe v. Ward, 4 Me. 195; Shontz v. Brown, 27 Penn.
123; Black v. Nease, 87 Penn. 483; Russell v. Stinson, 3 Hey. 1; New
Haven St. Co. v. Vanderbilt, 16 Conn. 420; Cook y. Johnson, 1 Beasley,
51; National Bank vy. Sprague, 5 OC. E. Green, 13; Barling v. Bishopp, 29
Beay. 417; Stileman v. Ashdown, 2 Atk. 477; Rol. Abr. 34; Murphy y.
Abraham, 15 Ir. Eq. (N. 8.), 371; Miller v. Wilson, 15 Ohio, 108; Anon. £
Wall. Jr. 107; Lyman vy. Cessford, 15 Iowa, 229; Bogard y. Gardley, 4 S,
& M. 402; Williams v. Banks, 11 Md. 198.

* Reid v. Gray, 37 Penn. 508; Horn v. Ross, 20 Geo. 210; Cole v.
Varner, 31 Ala. 244; Lynch vy. Raleigh, 3 Ind. 278; Nicholas vy. Ward,
1 Head, 323; Blake v. Jones, 1 Bailey Ch. 141.

4 Loeschigk v. Hatfield, 5 Robt. 26; Nicholas v. Ward, 1 Head, 323.

21
322 SUBSEQUENT CREDITORS.

evidence, for this would be impracticable in many
instances where the conveyance ought not to be estab-
lished. The intent may be collected from the circum-
stances of the case, and such badges of fraud as the
transaction wears.! Some of the usual badges are the
recording, or omission to record the conveyance,’ pos-
session of the property and obtaining a false credit
thereby,t the subsequent erection of improvements,’
the magnitude of the conveyance compared with the
grantor’s means,® the existence of prior debts at the
time of the transfer,’ the concealment,’ or notoriety
of the transfer,’ the immediate engagement in a hazard-
ous business,” and the contracting of debts immediately
after the transfer.”

 

1 Hutchinson y. Kelly, 1 Rob. 123; Larkin v. McMullen, 49 Penn. 29;
Thomson vy. Dougherty, 12 8. & R. 448; Bogard v. Gardley, 4 S. & M. 302;
Wright v. Henderson, 7 How. (Miss.) 5389; Johnston v. Zane, 11 Gratt.
552.

2 Sexton v. Wheaton, 8 Wheat. 229; Bank v. Patton, 1 Rob. 499; Dick
v. Hamilton, Deady, 322,

3 Lyman vy. Cessford, 15 Iowa, 229; Naylor v. Baldwin, Rep. Ch. 69;
Beeckman y. Montgomery, 1 McCarter, 106; Case v. Phelps, 39 N. Y.
164; in re Rainsford, 5 B, R. 381; Keating v. Keefer, 5 B. R. 183; 8.0. 4
A. L. T. 162.

* Pell v. Tredwell, 5 Wend. 661; Bradley v. Buford, Kentuck Decis.
19; Farmers’ Bank v. Long, 7 Bush. 337; Ayer v. Bartlett, 6 Pick. 71;
Merrill vy. Rinker, 1 Bald. 528.

° Tappan vy. Butler, 7 Bosw. 480; Dick v. Hamilton, Deady, 322.

® Belford y. Crane, 1 C. E. Green, 265.

* Richardson vy. Rhodus, 14 Rich. 95; Huggins vy. Perrine, 30 Ala.
396 ; Redfield v. Buck, 35 Conn. 328; Pawley v. Vogel, 42 Mo. 291.

® Hungerford vy. Earle, 2 Vern. 261; Sands v. Hildreth, 2 Johns. Ch.
35; s. 0. 14 Johns. 498; Lewkner v. Freeman, 2 Freem. 236.

° Madden vy. Day, 1 Bailey, 337; Snyder v. Christ, 39 Penn. 503;
Mixell v. Lutz, 34 Ill. 882; Roberts v. Gibson, 6 H. & J. 116.

© Mullen vy. Wilson, 44 Penn. 413; Thomson v. Dougherty, 12 9. &
R. 448; Beeckman v. Montgomery, 1 McCarter, 106; Cramer vy. Reford,
2 0. E. Green, 867; Carpenter v. Roe, 10 N. Y. 227; Case v. Phelps, 39
N. Y. 164; Lyne v. Bank, J. J. Marsh. 545; Mackay v. Douglass, 26 L. T.
(N. 8.) 721.

* Barling v. Bishopp, 29 Beay. 417; Case v. Phelps, 89 N. Y. 164;
SUBSEQUENT CREDITORS. 323

MERE SUBSEQUENT INDEBTEDNESS.—The simple fact
of a subsequent indebtedness is not sufficient to make
a transfer fraudulent. There must exist at the time on
the part of the grantor a fraudulent view, and until
this fraudulent purpose is established, either by posi-
tive proof or the exhibition of such facts as justify
the inference of its actual existence, the conveyance
cannot be set aside.’ Even a mere expectation of in-
debtedness, or an intent to contract debts if there is

_ only an intent not coupled with a fraudulent purpose,
to convey the property in order to keep it from being
reached by creditors, will not render the transfer invalid.?
The mere intent to keep the property from subsequent
creditors is not alone sufficient. No conveyance can be
made which may not in certain contingencies tend to
put property beyond the reach of the creditors of the
grantor, and the happening of such contingencies may
be reasonably supposed to be within the contemplation
of every person, who does not intend to withdraw
himself from the active pursuits of life. But such a
conveyance is not for that reason void, as against
subsequent creditors, unless it is also made with a
design to defraud them. The conveyance must be
made with an intent to put the property out of
the reach of debts, which the grantor at the time
of the conveyance intends to contract, and which he
does not intend to pay, or has reasonable grounds to
believe, that he may not be able to pay. There need
not be an intent to contract any particular debt or

 

Bullitt v. Taylor, 34 Miss, 708; Lyman v. Cessford, 15 Iowa, 229; Snyder
y. Christ, 39 Penn. 499; Mason vy. Rogers, 1 Root, 324; Thomson v.
Dougherty, 128. & R. 448; Herschfeldt v. George, 6 Mich. 456 ; Church-
hill v. Wells, 7 Cold. 364; Ware v. Gardner, L. R. 7 Eq. 317; Mackay v.
Douglas, 26 L. T. (N. 8.) 721.

1 Lyman vy. Cessford, 15 Iowa, 229.

2 Snyder v. Christ, 39 Penn. 499.
324 SUBSEQUENT CREDITORS.

debts. It is sufficient if there is an intent to contract
debts, and a design to avoid the payment of such debts
by the conveyance."

ActuaL inrent.—If a conveyance is made with
direct reference to immediate future indebtedness, and .
with the actual intent to deprive the future creditor
of a security, upon which he has a right to rely such
intent, is actually fraudulent. Persons to whom a debt
accrues, have a right to expect that their debtor will
deal fairly and in good faith with them, and if upon
the eve of an indebtedness about to be incurred and
with a view thereto, and without the knowledge of
the party extending the credit, the debtor makes a
voluntary conveyance of property upon which he knows
that his contemplated creditor relies or has a right
to rely, this is an actual fraud, upon such subsequent
creditor? Such an act will not be relieved of its
fraudulent character, by the mere fact that the con-
veyance is placed upon record if the creditor has no
actual notice, and the conveyance without hisnegligence
operates as a surprise upon him?®

Nor MERE VOLUNTARY CONVEYANCE—A. voluntary
conveyance made in good faith, and valid against
creditors whose debts exist at the time of its execu-
tion, is also valid against subsequent creditors In

 

* Winchester v. Charter, 12 Allen, 606; 8. o. 97 Mass. 140; 8. c. 102
Mass. 272.

* Churchill v. Wells, 7 Cold. 364; Beeckman v. Montgomery, 1 Mc-
Carter, 106; Barling v. Bishopp, 29 Beay. 417; Case v. Phelps, 39 N. Y.
164; Bullitt v. Taylor, 34 Miss. 708.

* Churchill v. Wells, 7 Cold. 364; Moore v. Blondheim, 19 Md. 172.

“ Shaw v. Standish, 2 Vern, 326; Kipp v. Hanna, 2 Bland, 26; Kidney
v. Coussmaker, 12 Ves. 1386; Sagitary v. Hide, 2 Vern. 44; Walker vy.
Burrows, 1 Atk. 93; Townsend vy. Windham, 2 Ves. Sr. 1; Roberts v.
Gibson, 6 H. & J, 116; Holmes vy. Penney, 3 K. & J. 90; Mattingly v.
SUBSEQUENT CREDITORS. 325

such a case, the character or amount of the consideration
is immaterial, and not the subject of inquiry. If there
is no evidence of fraud in fact, in the execution of a deed
or any subsequent acts from which fraud can be legally
inferred, subsequent creditors can not be permitted
to inquire into the fact, whether the consideration ex-
pressed is the true consideration. In other words they

 

Nye, 8 Wall. 370; Pike v. Miles, 23 Wis. 164; Lormore v. Campbell, 60
Barb. 62; Place v. Rhem, 7 Bush, 585; Tappan v. Butler, 7 Bosw. 480 ;
Pierson v. Heisey, 19 Iowa, 114; Vance v. Smith, 2 Heisk. 343; Horn v.
Volcano Co. 13 Cal. 62; Whitescarver v. Bonny, 9 Iowa, 480; Hamilton
v. Thomas, 3 Hey. 127; Hanson v. Power, 8 Dana, 91; Winn v. Barnett,
81 Miss. 653; Johnston v. Zane, 11 Gratt. 552; Smith v. Littlejohn, 2
McCord, 862; Pepper v. Carter, 11 Mo. 540; Haskell v. Bakewell, 10 B.
Mon. 106; Crumbaugh v. Kugler, 2 Ohio St. R. 373; Gugen v. Sampson,
4 F. & F. 974; Abbott v. Hurd, 7 Blackf. 510; Anon. 1 Wall. Jr. 107;
Ingram v. Phillips, 3 Strobh. 565; Holloway v. Millard, 1 Madd. 414;
Wells v. Stout, 9 Cal. 479; Niller v. Johnson, 27 Md. 6; Charlton y.
Gardner, 11 Leigh, 281; Thomas v. DeGraffenreid, 17 Ala. 602; Cole v.
Varner, 31 Ala, 244; Waterson vy. Wilson, 1 Grant, 74; Kid v. Mitchell,
1 N. & M. 334; Usherv. Hazeltine, 5 Me. 471; Stiles v. Lightfoot, 26
Ala. 443; Richardson v. Rhodus, 14 Rich. 95; Paige v. Kendrick, 10
Mich. 300; Converse v. Hartley, 831 Conn. 872; Benton y. Jones, 8 Conn.
186; Hurdt v. Courtenay, 4 Met. (Ky.), 189; Lyman v. Cessford, 15 Iowa.
229; Mixell v. Lutz, 34 Ill. 382; Bohn v. Headley, 7 H. & J. 257;
Reade v. Livingston, 3 Johns. Ch. 481; Bennett v. Bedford Bank, 11 Mass.
421; Lyne v. Bank, 5 J. J. Marsh. 545; Botts v. Cozine, Hoff. Ch. 79;
Tey v. Niswanger, 1 McCord Ch. 518; Howard v. Williams, 1 Bailey, 575;
Adams v. Adams,1 Dane Ab. 628; Loeschigk v. Hatfield, 5 Robt. 26;
Wilbur v. Fradenburgh, 52 Barb. 474; Holmes v. Clark, 48 Barb. 237;
Howe v. Ward, 4 Me. 195; Bank y. Patton, 1 Rob. 499; Nicholas v.
Ward, 1 Head, 323; Martin v. Oliver, 9 Humph. 561; Jones v. Marsh, Cas.
temp. Talb. 64; Todd v. Hartley, 2 Met. (Ky.), 206; Eigleberger vy.
Kibler, 1 Hill Ch. 113; Sexton v. Wheaton, 8 Wheat. 228; Bank v.
Housman, 6 Paige, 526; Cosby v. Ross, 3 J. J. Marsh. 290; Winebrenner
v. Weisiger, 3 Mon. 32; Smith v. Greer, 3 Humph. 318; Ridgeway vy.
Underwood, 4 Wash. C. C. 129; Brewster v. Power, 10 Paige, 562;
Baker vy. Gilman, 52 Barb. 26; Reed v. Woodman, 4 Me. 400; Miller
v. Miller, 23 Me. 22; Bangor v. Warren, 34 Me. 324; Bank v. Ennis,
Wright, 605; Henderson y. {Dodd, 1 Bailey Ch. 138; wide Wither-
don v. Jumper, May on Fraud, 519; Peterson v. Williamson, 2" Dev.
326
326 SUBSEQUENT CREDITORS.

are in no better situation than the grantor himself,
through whom they claim who is estopped to deny
that the consideration stated in the deed was actually
received and paid. The extent and sufficiency of the
consideration in reference to the value of the property
is only material, where the grantor is indebted at the
time of the conveyance, and creditors are seeking to
set aside the deed on the ground of fraud. But for
the mere purpose of conveying the property by an
instrument, which is to operate under the statute of
uses, it is sufficient, if any consideration appears upon
the face of the conveyance, sufficient to raise the use,
and neither the grantor nor his heirs are permitted
to aver or prove that the consideration stated therein,
did not in fact exist. If such consideration is ex-
pressed so as to make a valid deed as against the
grantor, it will also be valid against subsequent
creditors."

‘Vol AGAINST PRIOR CREDITORS.—Subsequent cred-
itors may, however, impeach a voluntary conveyance
by showing antecedent debts sufficient im amount to
afford a reasonable evidence of a fraudulent intent.
The intent to defraud antecedent creditors is prima facie
evidence of an intent to defraud subsequent creditors.’
The true principle is, that a fraudulent intent against
one or more creditors is fraudulent against all, and the
statute justifies no other distinction between prior and
subsequent creditors than that which arises from the
necessity of showing a fraudulent intent against some

 

* Bank of U. 8. v. Housman, 6 Paige, 526.

* Mead v. Gregg, 12 Barb. 653; Richardson v. Rhodus, 14 Rich. 95;
Huggins vy. Perrine, 30 Ala. 396; Charlton v. Gardner, 11 Leigh, 281;
Doyle v. Sleeper, 1 Dana, 531; Redfield y. Buck, 85 Conn. 828; Pawley
v. Vogel, 42 Mo. 291.

* Horn v. Volcano Co, 13 Cal. 62.
SUBSEQUENT OREDITORS. 327

creditor, which cannot be done in behalf of creditors
whose demands were not in existence at the time of the
conveyance, but by proving either a prior indebtedness
or a prospective fraud against them only.’ It is accord-
ingly settled, that if the donor is insolvent at the time
of the transfer, the conveyance is void as against sub-
sequent creditors. The general rule in regard to vol-
untary conveyances undoubtedly is that they are void
only so far as may be necessary to satisfy prior creditors,
and that if they are paid the conveyance will stand.’

CoNTINUOUS INDEBTEDNESS.—The mere fact, however
that the prior debts have been paid off will not alone
render the transaction valid, though it is entitled to
great weight. A great deal will depend upon the mode
in which such debts are paid. Paying off one debt by
contracting another is not getting out of debt, Proving
therefore, that the prior debts have been paid off is
doing nothing if in so doing the donor has con-
tracted others to an equal amount,‘ and is not sufficient.
Lta demum revocatur quod fraudandorum causa factum
est, si eventum fraus habuit; scilicet si hi creditores

 

? Hutchinson y. Kelly, 1 Rob. 123; Thomson v. Dougherty, 12 8. & R.
448,

* Vertner v. Humphreys, 14 8. & M. 130; [ley v. Niswanger, 1 McCord
Ch. 518; Carpenter v. Roe, 10 N. Y. 227; Madden v. Day, 1 Bailey, 337;
Parish v. Murphree, 13'How. 92; Beach y. White, Walk. Ch. 495; Hurdt
v. Courtenay, 4 Met. (Ky.) 139; Lowry v. Fisher, 2 Bush, 70; Ridgway
v. Underwood, 4 Wash. C. C. 129.

*Ingrem v. Phillips, 3 Strobh. 565; O’Connor v. Bernard, 2 Jo. 654;
Lyne v. Bank, 5 J. J. Marsh. 545; Sweny v. Ferguson, 2 Blackf. 129;
Freeman v. Burnham, 36 Conn. 469; Abbott v. Tenney, 18 N. H. 109;
Marsh vy. Fuller, 18 N. H. 360; King v. Tharp, 26 Iowa, 283; Curtis vy.
Price, 12 Ves. 89; Pell v. Tredwell, 5 Wend. 661; Hudnal v. Wilder, 4
McCord, 294; Wilbur v. Fradenburgh, 52 Barb. 474; Webb v, Roff, 9
Ohio St. R. 480; Todd v. Hartley, 2 Met. (Ky.) 206; Converse v. Hartley,
31 Conn. 372.

4 Madden v. Day, 1 Bailey, 337; Mills v. Morris, Hoff. Ch. 419,
328 SUBSEQUENT CREDITORS.

quorum fraudandorum causa fecit, bona ipsius vendt.
derunt, Creterum si illos dimisit quorum fraudandorum
causa fecit, et alios sortitus est, st quidem simpliciter
dimissis prioribus quos fraudare voluit, alios postea
sortitus est, cessat revocatio: si autem horum pecunia
guos fraudare noluit, priores dimisit quos fraudare
voluit; Marcellus dicit revocationi locum fore. Secundum
hanc distinctionem et ab imperatore, Severo et Antonino
rescriptum est eoque jure utimur* Such a contin-
uous indebtedness has been justly compared to a stone
descending a mountain covered with snow. Its bulk
is increased every time it rolls over, but still, every
added particle is referable to the stone originally
put in motion as the cause of its adhesion to the aggre-
gate mass.” In such instances the subsequent creditors
are subrogated to the rights of the creditors whose
debts their means have been used to pay.? Any other
rule would simply permit the debtor to take the prop-
erty of subsequent creditors and give it to his donee.
The doctrine in regard to change of creditors, with a
continuation of indebtedness, only applies, however,
when the donor is insolvent at the time of the gift.
There must be something more than an extensive business
whose balances are daily changing sides on his ledger.’
The proof of prior debts must be specific,? and this

 

? Dig. Lib, 42, tit. 9.

2? Brown v. McDonald, 1 Hill Ch. 297.

* Richardson y. Smallwood, Jac. 552; Holmes v. Penney, 3 K. & J.
90; O’Connor v. Bernard, 2 Jo. 654; Mills v. Morris, 1 Hoffm. 419;
Savage v. Murphy, 34 N. Y. 508; s. c. 8 Bosw. 75 ; McElwee v. Sutton,
2 Bailey, 128; Churchill v. Wells, 7 Cold. 364; Madden v. Day, 1 Bailey,
387; Brown v. M’Donald, 1 Hill Ch. 297; Wilson y. Buchanan, 7
Gratt. 384; Beach vy. White, Walk. Ch. 495 ; Mills. v. Morris, Hoff. Ch.
419; Whittington v. Jennings, 6 Sim. 493; Newlin v. Garwood, 1 Whart.
Dig. 572; Caston y. Cunningham, 3 Strobh. 59.

* Anon. 1 Wall. Jr. 107 ; Creed v. Lancaster Bank, 1 Ohio St. R. 1.

° Moritz v. Hoffman, 365 Ill. 558.

* ° Smith v. Greer, 8 Humph, 113; White y. Sansom, 3 Atk. 410,
SUBSEQUENT CREDITORS. 329

proof must also be accompanied by evidence of the
donor’s inability to pay those debts.

Remepres.—As there is no right without a remedy,
it follows from the foregoing principles that subsequent
creditors may institute proceedings to set aside a vol-
untary conveyance.” Whenever their rights depend
upon the existence of prior debts, they must, however,
show that there are such. As a general rule, when a
voluntary conveyance is set aside at the instance of
prior creditors, subsequent creditors will participate in
the fund.*

CoNVEYANCE TO USE OF DEBTOR.—The statutes which
make property conveyed to the use of the grantor liable
to his debts are founded upon the principle that a man’s
property should pay his debts, although he has vested
a nominal title in some one else. For that purpose
they declare the title to be in the grantor, and no trans-

 

? Loeschigk v. Hatfield, 5 Robt. 26; Wilbur v. Fradenburgh, 52
Barb. 474; Hutchinson y. Kelly, 1 Rob. 123; Bank v. Patton, 1 Rob. 499.

? Thomson y. Dougherty, 12 8. & R. 448; Beach v. White, Walk. Ch.
495 ; Hurdt v. Courtenay, 4 Met. (Ky.) 139; Jenkyn v. Vaughan, 3 Drew,
419; Freeman v. Pope, 5 L. R. Ch. 588; Skarf v. Soulby, 1 Me. &G.
364; s.c. 1 H. & Tw. 426; Pratt v. Curtis, 6 B. R. 139; Chamley v.
Dunsany, 2 Sch. & Lef. 689 ; vide Ede v. Knowles, 2 Y. & C. (N. 8.) 172;
Tripp v. Vincent, 3 Barb. Ch. 613.

® Lush v. Wilkinson, 5 Ves. 384; Holloway v. Millard, 1 Madd. 414;
Manders v. Manders, 4 Ir. Eq. 434; Tripp v. Vincent, 3 Barb. Ch. 613,
Kidney v. Coussmaker, 12 Ves. 136.

* Ammons’ Appeal, 68 Penn. 284; Trimble v. Turner, 13 8. & M.
848; Beach v. White, Walk. Ch. 495; Norton v. Norton, 5 Cush. 524;
Botts v. Cozine, Hoff. Ch. 79; Churchill v. Wells, 7 Cold. 364; Kidney v.
Coussmaker, 12 Ves. 136, note; Iley v. Niswanger, 1 McCord Ch. 518;
Hargroves v. Meray, 2 Hill Ch. 222; Kipp v. Hanna, 2 Bland, 26:
Thomson y. Dougherty, 12 8. & R. 448; Richardson y. Smallwood, Jac.
552; St. Amand v. Barbara, Com. 255; O’Connor y. Bernard, 2 Jo. 654;
Contra, Williams v. Banks, 11 Md. 198; Ward y. Hollins, 14 Md. 158 ;
vide Converse v. Hartley, 31 Conn. 872; Todd v. Hartley, 2 Met. (Ky.) 206.
330 SUBSEQUENT CREDITORS.

fer which is entirely nominal can stand in the way.
The simple inquiry is whether the property belongs to
the debtor, not upon any theory of fraud and against
the terms of the conveyance, but upon a theory of
equitable title reserved to the grantor by the very
terms of the conveyance, which transfers the legal and
nominal title to another. Property so held in trust for
the grantor is liable to subsequent as well as prior cred-
itors.' A conveyance to the use of the grantor during
his life with power to dispose of it by will or direct its
course after his death, is a conveyance to his use, and
the property so conveyed is liable to those who deal
with him after its execution. A man can not be the
equitable owner of property and still have it exempt
from his debts? A power of revocation inserted in a
deed will also render the property liable to subsequent
creditors.’

Discretion oF TRUSTEE.—A deed, however, is not
fraudulent against subsequent creditors from the fact
that it contains a trust to apply the interest of the
property in such manner as the trustee in his discretion
may think fit towards the benefit of the grantor, or his
wife or his children. If the grantor parts bona fide by
the deed with all control over the property and vests it
in the trustee in order to give him the absolute power
to deal with it as he pleases for the benefit of himself
or his wife or his children, it is not fraudulent against
subsequent creditors any more than if it were a convey-
ance simply for the benefit of the wife and children of

 

* Curtis vy. Leavitt, 15 N. Y. 9.
* Mackason’s Appeal, 42 Penn. 830; Brinton v. Hook, 3 Md. Ch. 477;
’ Ford v. Caldwell, 3 Hill, (8. C.) 248; Coolidge v. Melvin, 42 N. H. 510;
Hunters vy. Waite, 3 Gratt. 26; Watts v. Thomas, 2 P. Wms, 364.

® Tarback v. Marbury, 2 Vern. 510.
SUBSEQUENT CREDITORS. 301

the grantor. The mere fact that the grantor may pos-
sibly derive some benefit under it will not render it
fraudulent. If, however, there is any secret trust for
the benefit of the grantor, the deed will be fraudulent
under the statute.’

CoLORABLE TRANSFERS.—If a deed is merely color-
able, and a secret trust and confidence exist for the
benefit of the grantor, it 1s void not only against prece-
dent but subsequent creditors, for it is in such a case
a continuing fraud, and may actually operate as such as
well in reference to debts contracted after as before the
conveyance. Property conveyed in trust is still the
property of the grantor for every beneficial purpose, and
the secret trust in a conveyance tainted with actual
fraud, renders the property liable to subsequent
creditors. A discrimination, however, must be made
between the different kinds of fraudulent conveyances
and the different degrees and shades of fraud in each.
For some a valuable and adequate consideration is paid
yet they are made with a view to aid the debtor to

 

* Holmes v. Penney, 3 K. & J. 90.

? Clark v. French, 23 Me. 221; Whitmore v. Woodward, 28 Me. 392;
Damon vy. Bryant, 2 Pick. 411; McLane v. Johnson, 43 Vt. 48; King v.
Wilcox, 11 Paige, 589; Henry v. Fullerton, 13 S. & M. 631; Hargroves v.
Meray, 2 Hill Ch. 222; Marston v. Marston, 54 Me. 476 ; Parkman v.
Welch, 19 Pick. 231; McConihe v. Sawyer, 12 N. H. 396; Ladd v.
Wiggin, 35 N. H. 421; Gove v. Lawrence, 26 N. H. 484; Wadsworth v.
Havens, 3 Wend. 411; Smith v. Espy, 1 Stockt. 160; Flynn v. Williams,
7 Ired. 32; Smith v. Lowell, 6 N. H. 67; Smyth v. Carlisle, 17. N. H. 417 ;
Dart v. Stewart, 17 Ind 221; Livermore v. Boutell, 11 Gray, 217; Hook
v. Mowre, 17 Iowa, 195; Ruffing v. Tilton, 12 Ind. 259; Ward yv. Enders,
29 Ill. 519; Davis v. Stern, 15 La. An. 177; King v. Wilcox, 11 Paige,
589; Pennington v. Clifton, 11 Ind. 162; Herschfeldt v. George, 6 Mich,
456 ; Merrill v. Meachum, 5 Day, 341; Lewis v. Love, 2 B. Mon. 345 ;
Carlton v. King, 1 Stew. & Port. 472; Williams v. Avery, 38 Ala. 115;
vide Stone vy. Myers, 9 Minn. 308; Lynch v. Raleigh, 3 Ind. 273; Sum-
mers v. Roos, 43 Miss. 749.
332 SUBSEQUENT CREDITORS.

convert his property into that which can not be attached
or levied upon, and so to aid him in placing it beyond
the reach of creditors. Such conveyances will in gen-
eral be good against subsequent creditors, for there is no
secret trust for the benefit of the vendor.’ The purpose
or effect of a deed must in general be to injure subse-
quent creditors in order to render it void as to them.
The question is generally one of fact. The conveyance
can only be valid as to them when they are not in-
tended or liable to be delayed, hindered, or defrauded.
by it.2, When a transfer is rendered fraudulent by the
retention of possession, it is also void as to them, for
they are deceived by the false appearance of wealth and
thereby induced to give the vendor credit.’

 

1 Clark v. French, 28 Me. 221 ; O’Connor v. Bernard, 2 Jo. 654; Hall
v. Sands, 52 Me. 355.

? Hall v. Sands, 52 Me. 355.

* Clow v. Woods, 5 8. & R. 275; Young v. Pate, 4 Yerg. 164; Smith
y. Lowell, 6 N. H. 67; Paul v. Crooker, 8 N. H. 288; Woodrow v. Davis,
2 B. Mon. 298; Rankin v. Holloway, 3 8. & M. 614; Smith v. McDonald,
25 Geo. 377.
CHAPTER XIV.

ASSIGNMENTS FOR THE BENEFIT OF CREDITORS.

Mopvern pEvice— Assignments for the benefit of
creditors are for the most part an American device, and
are of a comparatively modern origin.’ It is true that
deeds of composition have been used for a long time,
but there is a manifest distinction between the two in-
struments. An assignment is a transfer by a debtor of
the whole or a part of his effects to some person in
trust to pay his creditors. A composition is a contract
between a debtor and one or more of his creditors, by
which it is agreed that the debtor shall be discharged
on his transfer to such creditor or creditors of certain
stipulated effects to be held by them absolutely. A
mere glance at these definitions will show an essential
distinction between the two transactions. An assign-
ment is the voluntary act of the debtor. The creditors
need not be consulted, nor need they be parties to it.
A composition is necessarily the result of a treaty with
the creditors severally, however many may join in the
same writing and the creditors are parties to it.’

Deeps or trust.—There is also a distinction be-

 

‘In Grover v. Wakeman, 11 Wend. 187, Senator Tracy says, that he
can find no trace of their distinct recognition in the English courts prior
to 1805; but Bamford v. Baron 2 T. R. 594, note is before that date.

* Wiener v. Davis, 18 Penn. 331; Grover v. Wakeman, 11 Wend. 187,
per Senator Tracy, :
304 ASSIGNMENTS FOR CREDITORS.

tween an assignment and a deed of trust in the nature
of a mortgage. The former conveys the property ab-
solutely to a trustee to be sold for the payment of the
debts named in it, and the latter purports to be a se-
curity for a debt with power to sell if the debt is not
paid! The former is an absolute and indefeasible con-
veyance of the subject matter thereof for the purpose
expressed, whereas the latter is conditional and de-
feasible. A deed of trust in the nature of a mortgage
is a conveyance in trust by way of security, subject to
a condition of defeasance or redeemable at any time
before the sale of the property. A deed conveying
property to a trustee as mere collateral security for the
payment of a debt, with the condition that it shall be-
come void on the payment of the debt when due and
with power to the trustee to sell the property and pay
the debt in case of default on the part of the debtor is
a deed of trust in the nature of a mortgage. By an ab-
solute deed of trust the grantor parts absolutely with
the title, which vests in the grantee unconditionally for
the purpose of the trust. The latter is a conveyance to
a trustee for the purpose of raising a fund to pay debts,
while the former is a conveyance in trust for the pur.
pose of securing a debt subject to a condition of de-
feasance.? The former the law presumes to be executed
with reference to the benefit of the creditors and not to
the advantage of the debtor. In one class the object is
to gain time for the debtor by agreement with the
creditor; in the other the debtor offers his property to
his creditors for distribution with such priorities as he
may prescribe?

 

1 State v. Benoist, 87 Mo. 500.
? Hoffman y. Mackall, 5 Ohio St. R. 124.
* Green v. Trieber, 8 Md. 12, Fouke y. Fleming, 18 Md. 392.
ASSIGNMENTS FOR CREDITORS. 335

SotvenT DEBTor.—A. voluntary deed of trust by a
solvent debtor must not, moreover, be confounded with
an assignment by an insolvent debtor, for the benefit of
all or particular creditors.t. It differs from a mortgage
executed concurrently with the creation or extension of
a debt because it is voluntary, and from an assignment
by an insolvent debtor in view of his insolvency be-
cause it is the act of a solvent man. Such a deed of
trust does not differ materially from a mortgage? When
it does not appear from the face of the deed that the
grantor owes any debts besides those which he provides
for, no inference can arise that it is made with the in-
tent to delay, hinder, or defraud creditors, for where
there are no creditors there can be no intention to de-
fraud them. But when the deed on its face purports
to be made by a solvent debtor, proof may be given of
his insolvency, and, if that is established, it will then be
governed by the same principles as if the insolvency
appeared on its face.* The avowed object of an assign-
ment is to place the property conveyed by it beyond
the legal pursuit of creditors, and by the instrument
itself to provide another mode for the payment of their
debts,’ and it must not therefore contain any provisions
to defeat or hinder this purpose beyond such reasonable
delay as may be incidental and necessary to the proper
execution of the trust.°

 

* Hodge v. Wyatt, 10 Ala, 271; Elmes y. Sutherland, 7 Ala. 262; Pope
v. Wilson, 7 Ala. 690; Dubose v. Dubose, 7 Ala, 285 ; Graham v. Lock-
hart, 8 Ala. 9; Frow y. Smith, 10 Ala. 571; Fouke v. Fleming, 13 Md.
392; Hardy v. Skinner, 9 Ired. 191.

? Elmes v. Sutherland, 7 Ala. 262; Green v. Banks, 24 Tex. 508.

* Pope v. Wilson, 7 Ala. 690.

* Hardy vy. Skinner, 9 Ired. 191; Hardy vy. Simpson, 13 Ired, 1382 ;
Green v. Banks, 24 Tex. 508.

* Pope v. Wilson, 7 Ala. 690.

° Green y. Trieber, 3 Md. 11.
336 ASSIGNMENTS FOR CREDITORS.

GENERAL AND PARTIAL. Assignments for the benefit
of creditors are commonly called voluntary assignments,
to distinguish them from such as are made by the com-
pulsion of the law. There are two kinds of assign-
ments, styled respectively general and partial. An as-
signment which conveys all the property of the debtor
is a general assignment. One which conveys only a part
of the property of the debtor is a partial assignment.’
One of the primary and essential elements of an assign-
ment is the transfer of the title and interest of the
debtor in the property assigned. The property must
also be conveyed to an assignee, to be held by him in
trust for creditors.« If either of these essentials is
wanting, the transaction is not an assignment for the
benefit of creditors?

CREDITORS NOT PARTIES—To the creation of a trust
by deed in favor of any person, it is not necessary that
the cestui que trust should either be a party or assent
to it. It is clear that trusts may lawfully be created
where there can be no present assent, for they may be
in favor of persons not in existence. It is sufficient in
general that in such cases there is a competent grantor
to convey and a competent grantee to take the property.
As to trusts created for the benefit of creditors, and to
which they are not, technically speaking, parties, if
bona fide made, they are unquestionably valid, and pass
a legal estate to the trustee. The sole question that
can arise, independent of the bankrupt law, is whether

 

* Manny v. Logan, 27 Mo. 528.

* Stetson v. Miller, 86 Ala. 642; Mussey v. Noyes, 26 Vt. 462; Noyes
v. Hickok, 27 Vt. 36; Shapleigh y. Baird, 26 Mo, 322; Manny v. Logan,
81 Mo. 91; Lampson y. Arnold, 17 Iowa, 479.

* Banning v. Sibley, 8 Minn. 389.

* Peck v. Merrill, 26 Vt. 686; Mussey vy. Noyes, 26 Vt. 462,

° Beans v. Bullitt, 57 Penn. 221,
ASSIGNMENTS FOR CREDITORS. 337

the conveyance is bona fide or fraudulent.’ It is not
necessary that the deed shall be executed by the cestuis
que trust, in order to give validity to its provisions. The
instant the legal title becomes vested in the assignee a
trust arises in behalf of those in whose favor it is
declared, provided there is a sufficient consideration to
sustain it.’

 

* Halsey v. Whitney, 4 Mason, 206; Nicoll v. Mumford, 4 Johns. Ch.
522; Houston v. Nowland, 7 G. & J. 480; Cunningham y. Freeborn, 11
Wend. 241; 8. c. 3 Paige, 587; 6. c. 1 Edw. 256; Marbury v. Brooks, 7
Wheat. 556; s.c. 11 Wheat. 78; Pope v. Brandon, 2 Stew. 401; Hemp-
stead v. Johnston, 18 Ark. 123; Layson vy. Rowan, 7 Rob. (La.) 1; Rein-
hard vy. Bank of Kentucky, 6 B, Mon. 252; Jones v. Dougherty, 10 Geo.
273; Robinson v. Rapelye, 2 Stew. 86; Brown v. Minturn, 2 Gallis. 557;
Wheeler v. Sumner, 4 Mason, 183; Duyall v. Raisin, 7 Mo. 449; Skipwith
v. Cunningham, 8 Leigh, 271; U. 8. Bank y. Huth, 4 B. Mon. 423; Rep-
plier v. Buck, 5 B. Mon. 96; Hall vy. Denison, 17 Vt. 310.

? Skipwith v. Cunningham, 8 Leigh, 271. The common law doctrine,
in Maine, Massachusetts and New Hampshire, was different. An assign-
ment was not valid without the assent of the creditors. An attachment
made before such assent was given was entitled to priority. Widgery v.
Haskell, 5 Mass. 144; Hooper v. Hills, 9 Pick. 435; Marston v. Coburn, 17
Mass. 454; Russell v. Woodword, 10 Pick. 408; Viall v. Bliss, 9 Pick. 18;
Edwards v. Mitchell, 1 Gray, 239; Wiley v. Collins, 11 Me. 193; Carr v.
Dole, 17 Me. 358; Leeds v. Sayward, 6 N. H. 83. With the assent of the
creditors an assignment could be made. Stevens v. Bell, 6 Mass, 339; Col-
lins v. Wiley, 11 Me. 193; Boyden v. Moore, 11 Pick. 162. When made
without the assent of the creditors, it was valid as to those that did as-
sent subsequently. Hastings v. Baldwin, 17 Mass. 552; Harris v. Sumner,
2 Pick. 129; Foster vy. Saco Manuf. Co. 12 Pick. 451; Lupton v. Cutter,
8 Pick. 298; Nostrand v. Atwood, 19 Pick. 281; Everett v. Walcott, 15
Pick. 94; Beach vy. Viles, 2 Pet. 675; Gore v. Clisby, 8 Pick. 555. An
attachment was entitled to priority over creditors who subsequently as-
sented. Ward v. Lamson, 6 Pick. 358; Bradford v. Tappan, 11 Pick. 76;
Leeds v. Sayward, 6 N. H. 83; Denie v. Hart, 2 Pick. 204; Copeland v.
Wells, 8 Me. 411. The burden of proof was on the assignee to show the
existence of the debts, Russell v. Woodward, 10 Pick. 408, and that the
property was needed to satisfy the demands of those who had assented.
Borden y. Sumner, 4 Pick. 265; Widgery v. Haskell, 5 Mass.144. It was
not necessary that the assent should be in writing Wiley v. Collins, 11
Me. 198. An assignment could not be made by a deed poll. Boyden v.
Moore, 11 Pick. 162; Brewer v. Pitkin, 11 Pick. 298. The law did not

22
338 ASSIGNMENTS FOR CREDITORS.

ConsmpEratTion.—A nominal consideration is sufli-
cient to support the use.’ Ifa consideration of money
is expressed in the assignment, no averment or evidence
can be received to the contrary.? The relation of debtor
and creditor between the assignor and assignee, and
the undertaking on the part of the assignee to pay the
proceeds of the estate to the creditors of the assignor,*
are a sufficient valuable consideration. The real con-
sideration is the debts due to the creditors, and these
constitute a valuable consideration in the highest sense
of the term,’ and relieve the assignment from the im-
putation of fraud that would result from a naked gift.®

PRESUMPTION OF ASSENT.—The creditors may reject

 

give any preference to an attachment or an assigument, and would not
marshal the assets to aid either. Gore y. Clisby, 8 Pick. 555; Lupton v.
Cutter, 8 Pick. 295; Copeland v. Weld, 8 Me. 411. Under the present
statutes of Maine and New Hampshire, an assignment is valid against a
subsequent attachment, although the creditors have not assented. Fisk v.
Carr, 20 Me. 301; Fellows vy. Greenleaf, 43 N. H.421. The same rule
prevailed under the statute of Massachusetts, Shattuck v. Freeman, 1 Met.
10, but assignments are now void under the insolvent laws of that State.
Stanfield v. Simmons, 12 Gray, 442; Contra, Adams v. Blodgett, 2 Woodb.
& Min. 233.

* Cunningham y. Freeborn, 11 Wend. 241; U.S. Bank v. Huth, 4 B.
Mon. 423; Repplier v. Buck, 5 B. Mon. 96; Hall v. Denison, 17 Vt. 310;
Jones v. Dougherty, 10 Geo. 273; Contra, M’Kinley v. Combs, 1 Mon. 105.

? Wilt v. Franklin, 1 Binn. 502.

* Cunningham y. Freeborn, 11 Wend. 241; Ward y. Trotter, 8 Mon. 1;
Jones v. Dougherty, 10 Geo. 273.

* Wilt v. Franklin, 1 Birns. 502; Halsey v. Whitney, 4 Mason, 206;
Haven v. Richardson, 5 N. H. 113; U. 8. Bank vy. Huth, 4 B. Mon. 4233
Hall v. Denison, 17 Vt. 310; Petrikin y. Davis, Morris, 296; Fermester v.
McRorie, 12 Ired. 287; Gates v. Labeaume, 19 Mo. 17.

* Halsey v. Whitney, 4 Mason, 206; U. S. Bank vy. Huth, 4 B. Mon.
423; Hudson v. Maze, 3 Scam. 578; Hall v. Denison, 17 Vt. 310; Law-
rence v. Davis, 8 McLean, 177; Meeker v. Saunders, 6 Iowa, 61; Stephen-
son v. Hayward, Prec. Ch. 810; Hollister v. Loud, 2 Mich. 309; Gates v.
Labeaume, 19 Mo, 17.

°U. 8. Bank v. Huth, 4 B. Mon. 428; Hollister vy. Loud, 2 Mich. 809.
ASSIGNMENTS FOR CREDITORS. 339

the beneficiary interest given to them by the assign-
ment, and, if they do, it falls to the ground, and becomes
a resulting trust for the debtor. But if the trust is for
their benefit, the law presumes their assent to it until
the contrary is shown.1 | Whether the beneficiaries in
the trust deed are apprised of the conveyance or not is
not material, When it comes to their knowledge they
are entitled to accept or reject its provisions.” An ex-
press avowal of that assent is not necessary to the
operation of the assignment,’ for the deed is complete
when executed by the parties to it.* If an assent is ex-
pressly given, it operates retroactively to confirm the
conveyance ab initio.” Even without such assent the
assignment will prevail over a subsequent execution or
attachment.® If one cestud que trust renounces the trust,

then it either enures solely to the benefit of the rest, or if
there are no others, it results to the debtor. But until
the renunciation is made, or implied from circumstances,
the trust continues. It arises without any act on the
part of the cestuis que trust, and in many instances they
may know nothing of it until sometime after the date

 

? Halsey v. Whitney, 4 Mason, 206; Wheeler v. Sumner, 4 Mason, 183 ;
Abercrombie v. Bradford, 16 Ala. 560; Farquharson v. McDonald, 2 Heisk,
404; England vy. Reynolds, 38 Ala. 370; Hyde v. Olds, 12 Ohio St. R. 591;
Price v. Parker, 11 Iowa, 144; Fellows v. Greenleaf, 43 N. H. 421; Brown
y. Lyon, 17 Ala. 659; Rankin y. Lodor, 21 Ala. 880; Lanier v. Driver, 24
Ala. 149; Gale v. Mensing, 20 Mo. 461; Sadlier v. Fallon, 4 R. I. 490; U.
8. v. Bank of U.S., 8 Rob. (La.) 262; Forbes v. Scannell, 13 Cal. 242;
Tompkins v. Wheeler, 16 Pet. 106 ; Contra, Naylor v. Fosdick, 4 Day, 146;
Brown v. Burrill, 1 Root, 252; Widgery v. Haskell, 5 Mass. 144; Leeds v.
Sayward, 6 N. H. 83; Edwards vy. Mitchell, 1 Gray, 239; Waters v. Cornly,
3 Harring. 117. In England each case is governed by its own circum-
stances. Smith v. Hurst, 10 Hare, 30; s.c. 15 E. L. & Eq. 520.

? Furman v. Fisher, 4 Cold. 626.

® Nicoll v. Mumford, 4 Johns. Ch. 522.

‘ Brooks v. Marbury, 11 Wheat. 78.

® Halsey v. Whitney, 4 Mason, 206.

* Rankin v. Lodor, 21 Ala. 380.
340 ASSIGNMENTS FOR CREDITORS.

of its creation. ‘The deed, however, is good and avail-
able on the instant of its execution, and can only be
avoided by the dissent, express or implied, of the cestuis
que trust? Thedoctrine of implied assent is limited to
those cases where there is a reasonable presumption of
such assent, and does not apply to any deed which does
not appear to be for the benefit of the creditors.’ This
presumption is not founded on the face of the instru-
ment, but in the nature and circumstances of the entire
case.”

The assignment, not only need not, but should not
contain any provision for the creditors to sign it or be-
come parties to it When it expressly excludes all
implied assent, by requiring that the creditors shall
manifest their consent in a prescribed mode,’ or by
stipulating for the sanction of a majority of the credit-
ors, before it can take effect,® there can be no presump-
tion of assent. When the provision is for those who
execute it within a certain time, the creditors can only
claim a benefit under it by executing it within that
time.’ The mere omission to sign the deed will not
make the deed void unless there is some express re-
quirement to that effect. The assent will not be
presumed unless the assignment devotes the property

absolutely and under all circumstances to the payment
of debts.

 

1 Skipwith v. Cunningham, 80 Leigh, 271.

2 Smith v. Leavitts, 10 Ala. 92; Lockhart v. Wyatt, 10 Ala. 231.

* Stewart v. Spencer, 1 Curt. 157.

4 Fellows vy. Greenleaf, 43 N. H. 421.

*Todd v. Bucknam, 11 Me. 41; Swearinger v. Slicer, 5 Mo. 241;
Moore v. M’Duffy, 3 Hawks, 578.

* Lawrence v. Davis, 8 McLean, 177; Shearer y. Loftin, 26 Ala. 708.

7 Brown v. Lyon, 17 Ala. 653.

® Fellows v. Greenleaf, 43 N. H. 421; Gale v. Mensing, 20 Mo. 461.

* Kalkman y. Mcklderry, 16 Md. 56.
ASSIGNMENTS FOR CREDITORS. 341

Conprtion.— Where there are conditions in the as-
Signment as for instance that the creditors shall release
their debts, the presumption of assent does not arise
because it involves a question of discretion upon which
different minds may draw different conclusions. If
therefore an assent on the part of creditors is neces-
sary to give full effect to such an assignment, it is
not complete until such assent is expressly given.’
This presumption of assent only arises when the deed
is for the benefit of the creditors; consequently if it
is fraudulent either in fact or in law, there is no such
presumption.? No assent can he presumed when the
assignment requires that the creditors shall give to
the debtor a credit for the balance that remains
due after the proceeds are distributed,’ or where the
majority of the creditors are to have the power to fix
the time for the sale of the property,* or where the
assignee is disqualified,’ or where the liability of the
assignee is limited to actual receipts or wilful defaults,”
or where the assignees are not to be responsible for
the neglect of each other." There is also a distinction
between an assignment by an insolvent debtor, and a
deed of trust by a solvent debtor.’ If the latter

 

’ Halsey ¥. Whitney, 4 Mason, 206; Drake v. Rogers, 6 Mo. 317;
Hurd v. Silsbee, 10 N. H. 108; vide Skipwith v. Cunningham, 8 Leigh,
271; Hall v. Dennison, 17 Vt. 310; Sadlier vy. Fallon, 4 R. I. 490, Upon
this subject the law varies with each State according to whether it
upholds or avoids assignments exacting releases.

2 Townsend y. Harwell, 18 Ala. 301; Stewart v. Spencer, 1 Curt. 157;
Ashley v. Robinson, 29 Ala, 112; Benning v. Nelson, 23 Ala. 801;
Baldwin v. Peet, 22 Tex. 708.

3 Todd v. Bucknam, 11 Me. 41; Elmes vy. Sutherland, 7 Ala. 262.

4 Shearer v. Loftin, 26 Ala. 703.

® Spinney v. Portsmouth Co. 25 N. H. 9.

® Brown v. Warren, 43 N. H.480; Spinney v. Portsmouth Co, 25 N. H. 9.

7 Spinney v. Portsmouth Co. 25 N. H. 9.

® Elmes y. Sutherland, 7 Ala. 262; Hodge v. Wyatt, 10 Ala, 271;
342 ASSIGNMENTS FOR CREDITORS.

postpones the time for payment beyond the time when
the debts become due or involves any risk of the
destruction or deterioration of the property, no pre-
sumption of assent will arise.*

Dissent.—The doctrine of implied assent is for the
benefit of the creditors, and they may, if they think
proper, decline to avail themselves of it. And this
may be done by any distinct and unequivocal act of
renunciation.2 Those who assail the assignment must
repel the presumption of assent by proof of disclaimer
or abandonment on the part of the creditors provided
for.

Errect oF REFUsAL.—The refusal of one or more
creditors to accept, does not render the deed invalid
as to other creditors who desire to claim a benefit
under it. If valid in other respects the assignment
is a security for them, notwithstanding, the refusal of
one or more of the creditors to accept it. The effect
of a refusal by: a creditor to take under the deed, is the
same as if he had been omitted.’ The distinction is
between a deed which contemplates or needs the assent
of all the creditors before it can become complete or
valid, and a deed which does not require the consent
of all. In the latter case the assent of a part only

 

Pope v. Wilson, 7 Ala. 690; Dubose vy. Dubose, 7 Ala. 235; Graham y.
Lockhart, 8 Ala. 9. P

‘Hodge v. Wyatt, 10 Ala. 271; Elmes v. Sutherland, 7 Ala. 262 ;
Evans vy. Lamar, 21 Ala. 383; Kemp v. Porter, 7 Ala. 1838; Graham vy.
Lockhart, 8 Ala. 9; Shearer v. Loftin, 26 Ala. 703.

? Smith v. Leavitts, 10 Ala. 92.

* Farquharson v. McDonald, 2 Heisk, 404.

“U. 8. Bank v. Huth, 4 B. Mon. 423; Moffat v. Ingham, 7 Dana, 495.

* Smith v. Leavitts, 10 Ala. 92; Halsey v. Whitney, 4 Mason, 206;
Hastings v. Baldwin, 17 Mass, 552; Gordon v. Coolidge, 1 Sumner, 537;
Pitrikin vy. Davis, Morris, 296; Kinnard vy. Thompson, 12 Ala. 487.
ASSIGNMENTS FOR CREDITORS. 343

will make it valid as far as it respects them In
the former case, inasmuch as there can be no presump-
tion of assent, the deed is within the general rule of
mandates, that until the persons for whose benefit they
are made, signify their assent, they are revocable
by the grantor. In such case the levy of an execution
prior to the consent of all, is equivalent, so far as the
execution creditor is concerned, to a revocation by the
debtor.” This doctrine applies to all cases where the
presumption of assent does not arise.

Irrevocasty.—The debtor can not revoke the
assignment nor can he even extinguish it by getting a
reconveyance, for no act of the assignee can affect the
rights of the cestuis que trust 'The assignment, how-

 

* Mauldin v. Armitstead, 14 Ala. 702; Brown v. Lyon, 17 Ala. 659,

? Lockhart v. Wyatt, 10 Ala. 231; Hodge v. Wyatt, 10 Ala. 271;
Elmes v. Sutherland, 7 Ala. 262; Shearer v. Loftin, 26 Ala. 703.

* Furman v. Fisher, 4 Cold 626; Hyde v. Olds, 12 Ohio St. R. 591;
Ingram y. Kirkpatrick, 6 Ired. Eq. 462; Forbes y. Scannell, 13 Cal. 242;
Brown y. Chamberlain, 9 Fla, 464; Hall v. Denison, 17 Vt. 310; Stewart
v. Hall, 3 B. Mon. 218; e parte Conway, 12 Ark. 302; Skipwith v. Cun-
nigham, 8 Leigh, 271; Sheldon y. Smith, 28 Barb. 593; Contra, Pitts v.
Viley, 4 Bibb. 446; M’Kinley v. Combs, 1 Mon. 105; Langton v. Tracey,
1 Nels. 126; Galt v. Dibrell, 10 Yerg. 146; Brevard v. Neely, 2 Sneed,
164. The doctrine in England is that an assignment is revocable, Ger-
rard vy. Lauderdale, 3 Sim. 1 ; Page v. Broom, 4 Russ. 6; Acton v. Wood-
gate, 2M. & K. 492; Griffith v. Ricketts, 7 Hare, 299; Smith v. Hurst,
10 Hare, 30; Law v. Bagwell, 4 Dr. & War. 398; Brown vy. Cavendish, 1
J. & L. 606 ; Gibbs v. Glamis, 11 Sim. 584; Ravenshaw v. Collier, 7 Sim.
8; Simmonds y. Palles, 2 J. & L. 489 ; Walwyn v. Coutts, 3 Sim. 14; s.
c. 8 Mer. 707; the deed is not revocable after such communications as
will give the creditors an interest in it; Griffith v. Ricketts, 7 Hare, 299 ;
Acton vy. Woodgate, 2 M. & K. 492; Harland v. Binks, 69 E. C. L. 713;
nor when there is a covenant not to revoke; Griffith vy. Ricketts, 7 Hare,
299; nor after the payment of an instalment; Kirwan v. Daniel, 5 Hare,
498 ; the trustee upon revocation may retain for his own debt ; Wilding
vy. Richards, 1 Coll. 655; Griffith vy. Ricketts, 7 Hare, 299; Siggers v.
Evans, 32 E. L, & Eq. 139,
344 ASSIGNMENTS FOR CREDITORS.

ever, is revocable when the creditors refuse to accept,"
or when they delay for so long a time as to create
a counter presumption to rebut the presumption of
assent? In either of these cases it may be altered,
cancelled, or changed by the parties to it.

Partres MAY ALTER.—An assignment which is
fraudulent on its face is binding on those who assent
to it,? and consequently the debtor alone can not change
or modify the terms of the transfer in any respect.* It
is different, however, when the parties consent to a
change. The distinction between void and voidable
must be regarded. A deed or instrument utterly void
is as one that never existed. It passes nothing, con-
fers no right or title upon the party named as grantee,_
and is of no effect as between the immediate parties to
it. An instrument or deed fraudulent as to creditors
and voidable by them is nevertheless valid as between
the parties to it, and the title is deemed to have
passed and vested in the grantee. A deed which is
fraudulent under the statute, is voidable only and not
absolutely void.’ A void deed is incapable of confirm-
ation or of being made good by any subsequent act
of the party, while one which is merely voidable may
be confirmed and will then be effectual for all purposes
unless the rights of third persons intervene and pre-
vent it.

 

* Gibson v. Chedic, 1 Nev. 497; Gibson v. Rees, 50 Tl. 583.

? Gibson v. Rees, 50 Tl. 583.

‘Hone v. Henriquez, 18 Wend. 240; s. c. 2 Edw. 120; Van Winklev.
McKee, 7 Mo. 485; Johns v. Bolton, 12 Penn. 389; Geisse v. Beall, 3
Wis. 367; Bellamy v. Bellamy, 6 Fla. 62.

“Porter v. Williams, 9 N. Y. 142; s.c, 12 How. Pr. 107; Sheldon rv.
Smith, 28 Barb, 593; Metcalf v. Van Brunt, 87 Barb. 621.

° Hone v. Woolsey, 2 Edw. 289.
ASSIGNMENTS FOR CREDITORS. 345

Mopr or atreration.—It is immaterial in what
form the alteration may be made, whether by a recon-
veyance back to the debtor and a re-assignment by him
or by another assignment without a reconveyance,’ or
by an instrument reiterating the trusts and dispensing
with the provisions which make it void.? The court
will look to the object and intent of the parties and give
effect to their acts so as to carry such intention into effect
wherever it is fair and honest. The only persons who
need unite in such a reformation of the instrument are
those who have in fact become parties to it. The title
of the assignee is good in the first instance until
creditors can take measures to impeach and avoid the
instrument, and the creditors for whom no provision
is made in the assignment can not complain of the
modification, for no trust results in their favor.’

The validity of such a deed always depends upon
the presumed assent of the creditors who are provided
for by its terms, and when the deed is fraudulent there
is no such presumption. The assignment then belongs
to that class of instruments which is revocable until all
the creditors have assented, and may be cancelled,
abrogated, or modified at pleasure by those who are
parties to it* But one void deed can not be made
good by another void deed, nor can the two be con-
strued together as one instrument.” A deed of appoint-
ment under a power reserved in the assignment can not

 

1 Brahe v. Eldridge 17 Wis. 184; Bridges v. Hinces, 16 Md. 101;
Sumner v. Hicks, 2 Black, 532; Ingraham v. Wheeler, 6 Conn. 277; Mills
y. Argall, 6 Paige, 577; Pierce v. Brewster, 32 Ill. 268.

2 Hone v. Woolsey, 2 Edw. 289; Conkling v. Carson, 11 Ill. 503 ;
Merrill v. Englesby, 28 Vt. 150; Murray vy. Riggs, 15 Johns. 571; vide
Porter v. Williams, 9 N. Y. 142; 8. c. 12 How. Pr. 107; Smith v.
Howard, 20 How. Pr. 121; Gates v. Andrews, 37 N. Y. 657.

5 Hone vy. Woolsey, 2 Edw. 289.

4 Insurance Co. v. Wallis, 23 Md, 173.

® Bridges v. Hindes, 16 Md. 101.
346 ASSIGNMENTS FOR CREDITORS.

have any more validity than the assignment itself, for
it can not be supported and carried into effect while
the assignment is set aside. There must in all cases be
an abandonment of the fraudulent deed. The assignee
can not hold the good security and yet avail himself of
that which is vicious, much less can he make the new
security a means of sustaining that which is illegal.’
An alteration or revocation can not prejudice the rights
of a creditor who has obtained a valid lien upon the
property.

Form.—No particular form of words or instrument
is necessary to constitute a valid assignment of chattels
or choses in action. Any valid transfer by which the
uses and trusts for which the property is assigned and
to which it is to be appropriated by the assignee, are
intelligibly indicated and declared, is an assignment.
If the deed is intelligible, brevity is not a badge of
fraud.” In general, it is not desirable to do more than
to direct, in general terms, a sale of the property and
collection of the debts assigned, and to designate to
what debts and in what order the proceeds shall be
applied.© An assignment of personal property and
choses in action need not be under seal.’ It may be by
parol. A mere delivery of the subject assigned is suf.
ficient.® The form of the assignment is immaterial. An

 

* Lentilhon v. Moffat, 1 Edw. 451; Averill v. Loucks, 6 Barb. 470;
Mitchell v. Stiles, 18 Penn. 306; eide Murray v. Riggs, 15 Johns. 571 ;
s. c. 2 Johns. Ch. 565.

* Mackie v. Cairns, 5 Cow. 547; s. c. 1 Hopk. 873; D’Ivernois v.
Leavitt, 23 Barb. 63.

* Porter v. Williams, 9 N. Y. 142; 8. c. 12 How. Pr. 107 ; Gates v.
Andrews, 87 N. Y. 657.

“ Norton y. Kearney, 10 Wis. 443.

* Forbes v. Scannell, 13 Cal. 242; Meeker vy. Saunders, 6 Iowa, 61.

* Dunham y. Waterman, 17 N. Y. 9; J essup v. Halse, 21 N. Y. 168.

” Forbes v. Scannell, 18 Cal. 242,

* Brown v. Chamberlain, 9 Fla. 464.
ASSIGNMENTS FOR CREDITORS. 347

assignment consisting of three parts is as valid as an
assignment consisting of but one part.' Choses in ac-
tion may be assigned as well as property susceptible of
or actually reduced to possession.” When an assign-
ment is made by a firm, and some of the partners con-
stitute another firm, the assets of both firms may be
assigned by one and the same deed instead of by dif:
ferent deeds.

Scnxepures.—No schedule either of the creditors or
of the property need be annexed The fact that it
transfers money and choses in action does not make any
difference.© An enumeration in detail is not necessary
to make a legal transfer. It is sufficient if there is
reasonable certainty in the description of the property
intended to be conveyed.® If there is no such certainty

 

? Page v. Weymouth, 47 Me. 238.

2 U.S. v. Bank of U. 8. 8 Rob. (La.) 262.

’ Gordon v. Cannon, 18 Gratt. 387.

‘ Brashear v. West, 7 Pet. 608: Wilt v. Franklin, 1 Binn. 502; Hower
v. Glasaman, 17 S. & R. 251; Wooster v. Stanfield, 11 Iowa, 128; Brown
y. Chamberlain, 9 Fla. 464; Halsey v. Whitney, 4 Mason, 206; Pearpoint
y. Graham, 4 Wash. C. C. 3382; Keyes vy. Brush, 2 Paige, 311; Cunningham
y. Freeborn, 11 Wend. 241; Meeker v. Saunders, 6 Iowa, 61; Parker v.
Price, 11 Iowa, 144; Gordon v. Cannon, 18 Gratt. 887; Forbes v. Scannell,
13 Cal. 242; Linn v. Wright, 18 Tex. 317; Haven v. Richardson, 5 N. H.
113; Deaver v. Savage, 3 Mo. 252; Duvall vy. Raisin, 7 Mo. 449; Robins
v. Embry, 18. & M. Ch. 207; ew parte Conway, 12 Ark. 302; U. 8. Bank
v. Huth, 4 B, Mon. 423; Dana y. Lull, 17 Vt. 390; Kevan v. Branch, 1
Gratt. 274; Brown v. Lyon, 17 Ala. 659; Shackelford y. Planters’ Bank,
22 Ala, 238; Hollister vy. Loud, 2 Mich. 809; Matthews v. Poultney, 33
Barb. 127; Robinson v. Rapelye, 2 Stew. 86; Strong v. Carrier, 13 Conn.
319; Pitrikin v. Davis, Morris, 296; Nye v. Van Husan, 6 Mich. 329.

° Brown v. Lyon, 17 Ala. 659.

° Halsey v. Whitney, 4 Mason, 206; Spring v. Strauss, 3 Bosw. 607;
Emerson vy. Knower, 8 Pick. 63; Woodward v. Marshall, 22 Pick. 468;
Haven vy. Richardson, 5 N.H. 113; Rundlett v. Dole, 10 N. H. 458; Clark
vy. Mix, 15 Conn, 152; Birchell vy. Strauss, 28 Barb. 293.
348 ASSIGNMENTS FOR CREDITORS.

in the description of the articles purported to be con-
veyed, no transfer is effected.

SraremMent oF DEBTSs.—There need be no estimate
of the value of the property. All the debtor wants
and all the creditors can expect is that the fair value of
the property shall be applied to the payment of the
debts, and that value is best ascertained by a sale of
the property.2, But where a schedule is made a part of
the conveyance, and is referred to as containing a speci-
fication of the property intended to be conveyed, it
must be annexed not only as a description and specifica.
tion of the property, but as necessary by the very terms
of the instrument to complete the conveyance or trans-
fer, and without it the deed is void.* The assignment
need not name the creditors or the amount due to each.
This must necessarily be the form of every general as-
signment for the benefit of all the creditors, for other-
wise it would be special as to the persons named.*
A description of the debts so as to identify them is all
that is necessary, and this is important to the creditors.
A. debt may be described by the name of the creditor,
and its amount may be left to be ascertained sub-
sequently.” It is a direction to pay the sum due what-
ever that may be.® The fact that some of the creditors
are workmen is immaterial."’ There need be no schedule
of the creditors, to whom no preference is given.® An

 

* Crow v. Ruby, 5 Mo, 484; Drakeley v. Deforest, 3 Conn. 272; Ryer-
son vy. Eldred, 18 Mich. 12.

* Haven y. Richardson, 5 N. H. 113; England v. Reynolds, 38 Ala. 370.

® Moir v. Brown, 14 Barb. 39.

‘England v. Reynolds, 38 Ala. 8370; Brown v. Knox, 6 Mo. 302; U.S.
Bank vy. Huth, 4 B. Mon. 423; Barcroft vy. Snodgrass, 1 Cold. 430; Van
Hook vy. Walton, 28 Tex. 59; wide Caton v. Moseley, 25 Tex. 374.

* Layson v. Rowan, 7 Rob. (La.) 1; Van Hook y. Walton, 28 Tex. 59.

® Butt v. Peck, 1 Daly, 83.

7 Bank y. Talcott, 22 Barb. 550.

® Halsey v. Whitney, 4 Mason, 206.
ASSIGNMENTS FOR CREDITORS. 349

omission of the schedule of preferred creditors will not
make the assignment void when the other trusts are
capable of execution.’ Creditors may be required to
cause the amount of their claims to be written ona
schedule. The parties may provide for a future
enumeration and annex schedules subsequently.2 They
may allow additions to be made with the consent of
the debtor, the assignee and any one of the creditors.
A clause which requires an oath to be made by the
omitted creditors, at the option of the assignee, does
not make the assignment void, for it merely reposes
confidence in him in the discharge of his duties.®

OmissION IS BADGE OF FRAUD.—The omission of
schedules is, however, a badge of fraud. This is but
an application of the maxim that fraud lurks in loose
generalities. It is, moreover, difficult to conceive of
anything better calculated to delay creditors than a
deed of assignment conveying all the property real and
personal of the debtor, without any description or esti-
mate of value for the benefit of creditors who are not
consulted or named in the deed, or the amounts due
them set forth or in any way made known.’

 

1 Scott v. Guthrie, 10 Bosw. 408.

? Todd vy. Bucknam, 11 Me. 41.

’ Halsey v. Whitney, 4 Mason, 206; Bank v. Talcott, 22 Barb. 550; Ely
v. Hair, 16 B. Mon. 230; Clap v. Smith, 16 Pick. 247.

4 Halsey v. Whitney, 4 Mason, 206.

* Halsey v. Whitney, 4 Mason, 206.

* Brown vy. Lyon, 17 Ala. 659;-Pine v. Rikert, 21 Barb. 469; Kellogg
y. Slauson, 15 Barb. 56; Van Nest v. Yoe, 1 Sandt. Ch. 4; Pearpoint v.
Graham, 4 Wash. C. C. 282; Stevens v. Bell, 6 Mass. 339; Halsey v.
Whitney, 4 Mason, 206; Wilt v. Franklin, 1 Binn. 502.

7 Cummings v. McCullough, 5 Ala. 324. In Indiana, the schedule need
not be recorded with the assignment. Black v. Weathers, 26 Ind. 242.
In New York, by act of 1860, Ch. 348, § 2, the debtor is required within
twenty days to make and deliver to the county judge an inventory, veri-
fied by affidavit. A failure to comply with the statute makes the assign-
350 ASSIGNMENTS FOR CREDITORS.

DESIGNATION. OF ASSIGNEE.—The assignee must be
designated. When the assignment is made to partners,
it is not material whether they are designated by the
firm name or their individual names, if the language
used is such as to indicate with certainty the persons
who are nominated as assignees.' The insertion of the
name of the assignee is essential to the validity of the
instrument.’ A delivery of the assignment to the as-
signee is sufficient.’ A delivery in fact or in law to some
person, or into some place beyond the debtor's control,
is indispensable* A delivery to the clerk to be re-
corded,® or to a third person,’ or a deposit of it in the
post office,’ is sufficient. There must also be an accept-
ance of the trust. A delivery without an acceptance
is nugatory.® The mere taking of the instrument and
retaining it is nothing. An agreement to accept before
the execution of the assignment is sufficient.® The
acceptance will be presumed ;° but this presumption is

 

ment void. Juliand v. Rathbone, 39 N. Y. 369; Fairchild v. Gwynne. 16
Ab. Pr. 23; 8. c. 14 Abb. Pr. 121; De Camp v. Marshall, 2 Abb. Pr. (N.
8.) 378 ; Contra, Evans v. Chapin, 12 Abb. Pr, 161; s. c. 20 How. Pr. 289;
Van Vleet v. Slauson, 45 Barb. 817 ; Barbour v. Everson, 16 Abb. Pr. 366;
Read y. Worthington, 9 Bosw. 617.

1 Forbes vy. Scannell, 13 Cal. 242,

° Reamer v. Lamberton, 59 Penn. 462,

3 Ingraham v. Grigg, 18 8. & M. 22.

* Marston v. Coburn, 17 Mass. 454; M’Kinney v. Rhoades, 5 Watts,
843; Brevard v. Neely, 2 Sneed, 164; Caldwell v. Bruggerman, 4 Minn.
270; Van Hook v. Walton, 28 Tex. 59,

° Tompkins v. Wheeler, 16 Pet. 106; Major v. Hill, 18 Mo. 247; Hoff-
man vy. Mackall, 5 Ohio St, R. 124,

° Moore v. Collins, 3 Dev. 126.

7 M’Kinney v. Rhoades, 5 Watts, 343.

® Crosby v. Hillyer, 24 Wend. 280; Quincy v. Hall, 1 Pick. 357; Pier-
son v. Manning, 2 Mich. 445.

® Hoffman v. Mackall, 5 Ohio St. R. 124.

* Wilt v. Franklin, 1 Binn. 502; M’Kinney v. Rhoades, 5 Watts, 843 ;
Siggers v. Evans, 32 Eng. L. & Eq. 189.
ASSIGNMENTS FOR CREDITORS. 351

hable to be rebutted. An acceptance before any ad-
verse steps are taken by others is sufficient.?

It is not necessary for the assignee to sign the deed
to make it valid. All that equity requires is his assent
and acceptance of the trust. Ifhe does any one act by
which his assent may be implied, equity holds him
bound for its performance, and will not release him from
his voluntary obligation. There is no necessity for the
execution by the assignee. Any act done in relation
to the property, showing that he claims it as assignee,
or desires to reduce it into possession, undeniably prove
his assent.? Taking possession of the estate is an accept-
ance of the trust, and binds the assignee to execute it
in every particular as effectually as if he enters into an
express covenant to do so.* When there are two
assignees, if one refuses to accept, the other assignee be-
comes vested with the trust in the same manner as if
the dissenting assignee had not been named in the in-
strument.’ The assignee cannot, without the consent of
the debtor, accept the assignment in part and reject it
in part. If he adopts it all, he must adopt it én toto.
He cannot affirm it as to some debts and disaffirm it as
to others.’ The assignee’s title to the goods is complete
by the execution of the assignment, subject to be de-
feated by his laches in not giving reasonable notice, or
in not following up his title to possession."

 

‘Wilt v. Franklin, 1 Binn. 502; Crosby v. Hillyer, 24 Wend. 280;
Pierson v. Manning, 2 Mich. 445; Spencer v. Ford, 2 Rob. (Va.) 648.

? Lampson y. Arnold, 19 Iowa, 479.

® Hx parte Conway, 12 Ark. 302; Flint v. Clinton Co. 12 N. H. 480;
State v. Benoist, 37 Mo. 500.

* Cunningham v. Freeborn, 11 Wend. 241; Price v. Parker, 11 Iowa, 144.

° Mead v. Phillips, 1 Sandf. Ch. 88; Moir v. Brown, 14 Barb. 39;
Metcalf v. Van Brunt, 37 Barb. 621; Gordon v. Coolidge, 1 Sumner, 537 ;
ex parte Conway, 12 Ark. 302; Forbes v. Scannell, 13 Cal. 242.

° Gordon v. Coolidge, 1 Sumner, 537,

7 Bholen y. Cleveland, 5 Mason, 174; West v. Tupper, 1 Bailey, 193 ;
302 ASSIGNMENTS FOR CREDITORS.

Lxeat errect.—The assignment creates a trust. All
the legal interest vests nominally in the assignee, but
substantially in the cestwis que trust or creditors, and
the residuum, if any, after the payment of debts results
to the grantor. The assignee has not even a beneficiary
interest in the estate; he is seized for others, and not
for himself. The moment he is seized, that moment all
the substantial interests pass out of him into others.
He is merely the legal recipient or organ by which the
conveyance is rendered valid for higher and more bene-
ficial purposes. In no possible event or contingency
can he take or retain any interest in his own hands for
himself without being called to account, and pay over
to those who are equitably entitled to take it. All the
parties to the deed have the right to go into a court of
equity and have the trust specifically executed. The
recording of an assignment is, in the absence of fraud,
sufficient notice to creditors.’

IncipDENT oF oOwNERSHIP.—The right to make an
assignment results from that absolute dominion which
every man has over that which is his own, and is not of
itself calculated to excite suspicion? If a debtor can
make a valid assignment of his property to his creditors
to pay his debts, he can execute a like conveyance to.
an assignee to discharge the demands of his creditors.
The assignee is the medium through which the payment
is directed to be made. He is seized of the legal estate
for the benefit of the creditors, all equity being in the

 

Frazier v. Fredericks, 1 Zab. 162; Wilt v. Franklin, 1 Bin. 502; Contra,
Caldwell vy. Buggerman, 4 Minn. 270.

1 Ex parte Conway, 12 Ark. 302; U. 8. Bank v. Huth, 4 B. Mon. 428;
Hall y. Dennison, 17 Vt. 310; Houston vy. Nowland, 7 G. & J. 480; Marbury
v. Brooks, 7 Wheat. 556; s. c, 11 Wheat. 78.

2 Farquharson v. Eichelberger, 15 Md. 63.

* Brashear v. West, 7 Pet. 608; ev parte Conway, 12 Ark. 302.
ASSIGNMENTS FOR CREDITORS. 353

cestuis que trust, and the assignment only constitutes
the means and appointment by which debts are to be
paid. Ifa debtor can pay his debts directly to his
creditors himself, there is nothing to prevent him from
directing a third person or assignee to pay them. If in
one instance it is a moral as well as a legal duty to pay,
in the other it is but the performance of the same act,
and is supported by the same just consideration.
Neither the amount of the indebtedness, nor the means
by which debts are directed to be paid, can alter the
right to make payment. It is the right, as well as the
duty, of a debtor to devote his property to the satisfac-
tion of his debts, and the exercise of this right by the
honest performance of this duty can not be deemed a
fraud. Such assignments are usually made to an as-
signee because the mode of distributing the fund is in
general far more convenient than for the debtor to
make payment directly to the creditors themselves. It
is doing the same thing indirectly instead of directly+

‘Wnuo may assign.—A corporation, unless restrained
by some statute or express provision in its charter, may
make an assignment as well as an individual.? An as-
signment may be made by an executor.’

Partyers.—It is not competent for one partner,

 

: Ex parte Conway, 12 Ark. 302.

* Hill v. Reed, 16 Barb. 280; McCallie v. Walton, 37 Geo. 611; State
v. Bank, 6 G. & J. 205; Union Bank v. Ellicott, 6 G. & J. 363; De Ruyter
vy. St. Peter’s Church, 3 N. Y. 2388; Popey. Brandon, 2 Stew. 401; Robins
v. Embry, 1 8S. & M. Ch. 207; ex parte Conway, 12 Ark. 302 ; Flint v.
Clinton Co. 12 N. H. 430; Hopkins v. Gallatin Co. 4 Humph. 403; Lon-
don y. Parsley, 7 Jones (N. C.), 813. Assignments by corporations, in con-
templation of insolvency, are probibited in New York by 1 Rev. Stat. 608,
§ 4;’Sibell v. Remsen, 38 N. Y. 95; Smith v. Consolidated Stage Co. 18
Abb Pr. 418; Robinson vy. Bank, 21 N. Y. 406; Loring v. Vulcanized
Gutta Percha Co. 36 Barb. 829; 8. c. 30 Barb. 644; Harris vy. Thompson,
15 Barb 62.

* Wolverhampton Bank y. Marston, 7 H. & N. 147.

23
354 ASSIGNMENTS FOR CREDITORS.

without the assent or authority of the other partners, to
make a general assignment of the partnership property
to a trustee for the payment of debts. No such power
can be implied from the partnership relation. Each
partner possesses an equal and general power and
authority in behalf of the firm to dispose of the part-
nership property and effects for any and all purposes
within the scope of the partnership and in the course
of its trade and business. But the authority of each of
several partners as agent of the firm is necessarily lim-
ited to transactions within the scope and object of the
partnership and in the course of its trade or affairs. A
general assignment to a trustee of all the funds and
effects of the partnership for the benefit of creditors is
the exercise of a power without the scope of the part-
nership enterprise and amounts of itself to a suspension
or dissolution of the partnership itself. It is no part of
the ordinary business of the partnership but outside
and subversive of it. No such authority as that can
be implied from the partnership relation.! One part-
ner may execute an assignment when he has previous
authority.” The same reason applies where an ex-

 

? Welles v. March, 30 N. Y. 344 ; Coope v. Bowles, 42 Barb, 87; 8. .
18 Abb. Pr. 442; 8. c. 28 How. Pr. 10; Robinson v. Gregory, Appeals
Dec. 1863; 8. c. 29 Barb. 560; Hughes y. Ellison, 5 Mo. 463; Dana y.
Lull, 17 Vt. 390; Hook v. Stone, 34 Mo. 329; Gates v. Andrews, 37 N.
Y. 657 ; Stein v. La Dow, 13 Minn. 412; Havens v. Hussey, 5 Paige, 30;
Hitcheock v. St. John, 1 Hoff. 511 ; Kirby v. Ingersoll, Harring. Ch. 172;
Sheldon v. Smith, 28 Barb. 593; McClelland v. Remsen, 86 Barb. 622;
s.c, 14 Abb, Pr. 831; 8. c. 23 How. Pr. 175 ; Bowen v. Clark, 5 A. L.
Reg. 208 ; Contra, Deckard v. Case, 5 Watts, 22; Hennessey v. Western
Bank, 6 W. & 8. 300; Robinson v. Crowder, 4 McCord, 519; Gordon v.
Cannon, 18 Gratt. 387.

* Welles v. March, 80 N. Y. 344; Baldwin v. Tynes, 19 Abb. Pr. 82;
Kelly v. Baker, 2 Hilt. 531 ; Roberts v. Shephard, 2 Daly, 110 ; Harrison
v. Sterry, 5 Cranch, 289; Kendall v. New Eng. Carpet Co. 18 Conn. 383 ;
Pike v. Bacon, 21 Me. 280 ; Kemp vy. Carley, 3 Duer, 1; Forbes v.
Scannell, 13 Cal, 242 ; Lassel vy. Tucker, 5 Sneed. 1.
ASSIGNMENTS FOR CREDITORS. 355

traordinary emergency occurs in the affairs of the part-
nership and the other partner can not be consulted on
account of his absence under circumstances which fur-
nish reasonable ground for inferring that he intended
to confer upon the assigning partner authority to do
sany act for the firm which could be done with his con-
currence if he were present. An assignment will be
valid when the assignor is the sole manager and the
other partner lives out of the State,’ or in a foreign
country.” One partner may also make an assignment
when the other partner assents,? or absconds,* or has
sold out his interest to the assignor.” A dormant part-
ner need not execute the assignment.’ Surviving part-
ners may make an assignment.’ Partners can not make
an assignment when one is a minor, for the assignment
must be absolute and irrevocable and not subject to
any defeasance by the act of any of the parties, but
the act of the infant is voidable and may be counter-
acted by him either before or at maturity.®

IncrpentTaL DELAY.—The necessary effect of every
general assignment even where the creditors are to be
paid part passu is to hinder and delay them in the
collection of their debts, by withdrawing the property
from the reach of any legal process to which they may
wish to resort. It interrupts and presents obstacles to
their legal remedies, and thus tends to hinder those

 

* McCullough v. Summerville, 8 Leigh, 415. 1

2 Forbes v. Scannell, 13 Cal. 242.

3 Ely v. Hair, 16 B. Mon. 230 ; Mills v. Argall, 6 Paige, 577.

4 Palmer v. Myers, 29 How. Pr. 8; 8. c. 48 Barb. 509 ; National Bank
y. Sackett, 2 Daly, 395.

® Clark v. McClelland, 2 Grant, 31.

* Drake v. Rogers, 6 Mo. 317.

7 Egbert v. Woods, 3 Paige, 517; Hutchinson v. Smith, 7 Paige, 26;
French vy. Lovejoy, 12 N. H. 458; Contra, Barcroft v. Snodgrass, 1 Cold. 430.

® Fox v. Heath, 21 How. Pr. 384; Yates v. Lyon, 5 A. L. J. 122,
356 ASSIGNMENTS FOR CREDITORS.

who are disposed to prosecute their suits.’ Not only is
such its necessary effect, but the actual intent of the
debtor generally is to place the property beyond the
immediate power and action of his creditors by pre-
venting them from obtaining any judgments by which it
may be bound, or from issuing any execution or attach-
ment under which it may be sold. He means to
hinder the creditors from collecting their debts out of
his property by any proceeding against himself as their
debtor, and to delay them from receiving any portion
of their debts until they shall become entitled toa
dividend under the assignment. The intent thus
to hinder and delay them is not only to be plainly
deduced from the nature of the trust, but not unfre-
quently is confessed by its terms. In fact it was upon
this very ground, the apparent and certain intent to
hinder and delay the creditors, that originally the
validity of a general assignment, although for the
benefit of all the creditors without distinction, was
not only seriously doubted but seriously contested.’
But it is not every conveyance which will have the
effect. of delaying or hindering creditors in the collee-
tion of their debts that is fraudulent within the statute,
for such is the effect pro tanto of every assignment that
can be made by one who has creditors. Every assign-
ment of a man’s property, however good and honest the
consideration, must diminish the fund out of which
satisfaction is to be made to his creditors.

Wuat INTENT Is NECESSARY.—The object of the
statute is to prevent deeds fraudulent in their in-
ception and intention, and not merely such as in

 

* Dunham vy. Waterman, 17 N. Y. 93; e¢de Burdick y. Post, 12 Barb.
168.

* Pickstock v. Lyster, 8 M. & 8. 871; King v. Watson, 3 Pri. 6.
ASSIGNMENTS FOR CREDITORS. 357

their effect may hinder or delay creditors. It is the
corrupt and covinous motive, the fraudulent inten-
tion, the mala mens, with which the assignment or
conveyance is made that constitutes the fraud against
which the denunciations of the statute are directed, and
without the existence, in fact, or presumed existence of
an immoral or bad intention or motive, fraud can not
be perpetrated either at common law or under the
statute. Fraud depends not upon the fact of delay
but upon the character of the delay and the motive
which actuates it.2 The statute was never intended to
restrict the debtor from paying or securing creditors
whom moral duty and a sense of justice may dictate the
propriety of paying or securing, or from doing equal and
exact justice to all by placing his means in a condition
to that end. So long as a debtor remains in contem-
plation of law the absolute owner of property, it can not
be said of an appropriation of that property exclusively
to the purpose of paying debts that it is a contrivance
to delay, hinder, and defraud creditors. He merely
exerts a power over property which the law gives him
as owner for a purpose which is not in law wrongful.
Such an appropriation can not be deemed to be made
with the fraudulent intent or purpose to hinder or de-
lay, but with the higher and better intent and purpose
of paying or securing all equally, or providing for those
who are most meritorious.* All the law can reasonably
demand isa faithful application of the debtor’s property

 

U.S. Bank v. Huth, 4 B. Mon. 423 ; Hollister v. Loud, 2 Mich. 309 ;
Meux v. Howell, 4 East, 1; Hafner v. Irwin, 1 Ired. 490; U.S. v. Bank
of U. 8.8 Rob. (La.) 262; True v. Congdon, 44 N. H. 48; Church vy.
Drummond, 7 Ind. 17; Gates v. Labeaume, 19 Mo. 17; Baldwin v. Peet,
22 Tex. 708.

? Christopher v. Covington, 2 B. Mon. 357.

’ Hafner yv. Irwin, 1 Ired. 490.

*U. 8. Bank v. Huth, 4 B. Mon. 423.
358 ASSIGNMENTS FOR CREDITORS.

to the payment of debts, and when this object is accom-
plished by an assignment or deed of trust for the bene-
fit of his creditors, the hindrance and delay which may
operate to the prejudice of particular creditors is sim-
ply an unavoidable incident to a just and lawful act.
Such mere incident to a lawful act does not vitiate the
transfer.’

INTENT TO DEFEAT EXECUTION.— Although the intent
to deprive all or particular creditors of their lawful suits,
and hinder and delay them in the recovery of their just
demands, is confessed or proved, still the assignment, if
by its terms all the property which it embraces must be
applied ratably or otherwise to the payment of debts
is upheld as valid and effectual. The mere intent to
avoid an execution or other legal process does not in
point of law make it void. It may even be made on
the same day that a verdict is rendered against the as-
signor,’ and the claim of the creditor assailing 1t may be
specially in the contemplation of the debtor. It will
not in such case be void, even as against the persons

 

1 Hoffman vy. Mackall, 5 Ohio St. R. 124 ; Townsend v. Stearns, 32 N.
Y. 209; Guerin v. Hunt, 8 Minn. 477; in some of the cases it is said that
the fraud depends upon the primary motive. If the primary motive is to
delay, then the assignment is fraudulent, but if the primary motive is to
make a distribution of the property it is valid. In one hindrance or delay
is the main and primary purpose, in the other it is only an incidental effect.
Eyre v. Beebe, 28 How. Pr. 383; Stickney v. Crane, 35 Vt. 89; Baldwin
v. Peet, 22 Tex. 708.

* Riches v. Evans, 9 C. & P. 640; Johnson yv. Osenton, L. R. 4 Ex. 107;
Lee v. Green, 35 Eng. L. & Eq. 261; Bowen v. Bramridge, 6 C. & P. 140;
Wolverhampton Bank v. Marston, 7 H. & N. 147; Wilt v. Franklin, 1
Binn. 502; Pickstock v. Lyster, 3 M. & 8. 373; Jackson vy. Cornell, 1
Sandf. Ch. 348; Heydock y. Stanhope, 1 Curt. 471; cide Dalton v. Currier,
40 N. H. 287.

§ Jackson v. Cornell, 1 Sandf. Ch. 848,

* Horwitz vy. Ellenger, 31 Md. 492.
ASSIGNMENTS FOR CREDITORS. ; 3859

who are in fact very materially hindered and delayed,
and were meant to be so. It is valid even against the
creditors whom it deprives and is intended to deprive
of that full satisfaction of their debts which by their
superior diligence in prosecuting their suits they would
otherwise have certainly obtained. The explanation is
that although in these cases the intent to hinder and de-
lay the creditors is manifest, it is just as certain that
there is no intent to cheat or defraud them, and the
reasonable construction of the statute is that it is only
such a hindrance or delay as is intended to operate, or,
if permitted, could operate as a fraud upon the creditors,
that was meant to be prohibited.’

All the law can reasonably demand of a debtor is
the faithful application of his entire property to the satis-
faction of his debts, and where, by the terms of the assign-
ment, this is secured, the hindrance or delay which they
create, however they may operate to the prejudice of
particular creditors, are disregarded, since they are only
the necessary means of accomplishing a justifiable and
lawful end. They fall it is true within the words of the
statute, but as they are free from the imputation of fraud,
and produce no benefit to the debtor at the expense of
the creditors, they are not embraced within its meaning,
and are justly excluded from its operation.” It makes
no difference, therefore, that the debtor is in failing cir-
cumstances, that suits are threatened, that judgments
exist against him or that executions against him are
momentarily expected. Under any or all of these con-
tingencies he has the full and absolute right to dispose
of his property for the payment of his debts.? The fact,

 

? Hoffman v. Mackall, 5 Ohio St. R. 124.

? Nicholson v. Leavitt, 4 Sandf. 252.

° Stewart vy. English, 6 Ind. 176; Hollister v. Loud, 2 Mich.
309.
360 ASSIGNMENTS FOR CREDITORS.

therefore, that the assignment is made for the pur-
pose of avoiding the preference that might otherwise
be obtained by legal process in a race of eager dili-
gence by disappointed creditors, does not make the
assignment invalid. Such is generally the motive to
the making of such an assignment.’

Srorer motrves.—The inducements which may have
led to the assignment are not to be inquired into. Itis
with the act of the party, and not with the secret springs
which prompted it that the courts have to deal.’ If the
assionment is such as the law authorizes and approves,
the secret motives that prompted it are entirely immate-
rial.® Even a stratagem to prevent an execution till an
assignment can be made will not render it.void. This
is due to the fact that creditors have no lien upon a
debtor’s property. The dominion over it is vested in the
debtor, and so long as the property continues to belong
to him unaffected by liens, his conduct for the purpose of
imposing upon a creditor, and keeping him at bay, will
not divest him of that dominion, or disqualify him from
making an appropriation of it for the benefit of his
creditors! This moreover is not the kind of fraud that
makes an assignment void. The only illegality which
avoids it is that which makes or endeavors to make it
the instrument of defeating or delaying the collection
of debts. It is not, therefore, for the same reason com-
petent for a creditor to vacate an assignment as to him-
self, while it may be good as to everyone else by show-
ing that there was fraud or misrepresentation on the

 

1 Horwitz v. Ellinger, 31 Md. 492.

2 Pike v. Bacon, 21 Me. 280.

° Horwitz v. Ellinger, 31 Md. 492; Mackintosh v. Corner, 33 Md.
598.

4 Pike v. Bacon, 21 Me. 280.
ASSIGNMENTS FOR CREDITORS. 361

part of the debtor in the creation of the debt due to
him.

FRAUDULENT INTENT.—Although an assignment is
made for the purpose of securing genuine debts, that
may not be the only purpose. It may be one purpose
and yet the assignment may be fraudulently made?
But the only intent which will vitiate the assignment is
a fraudulent intent, that is,an intent which the law wiil
not permit to be cae into effect, an intent to se-
cure some benefit to the debtor, or to withhold some
right from “his creditors beyond what the law permits.
If this intent is expressed in the deed, the court
may declare it to be void; but if the fraudulent in-
tent is not expressed in the deed, then it can only
be invalidated by proof that the fraudulent intent
existed at the time of the execution of the deed®
The assignment cannot be made the means of cover-
ing up and preserving the property for the debtor's
use, or of withdrawing and protecting it from the law-
ful actions, remedies, and demands of his creditors. IEf
it is devised and contrived as a scheme for keeping the
property under the secret control of the debtor, or for
keeping it out of the market for an indefinite period,
or until there shall be a rise in the prices, or for locking
it up in any way for the debtor’s own use and benefit ;
if it is not designed in good faith for the payment of
debts really owed, but the whole transaction is con-

 

? Horwitz v. Ellinger, 31 Md. 492; Mattison v. Demarest, 4 Robt. 161;
Pierce v. Jackson, 2 R. I. 35; Reinhard v. Bank of Kentucky, 6 B. Mon.
252; vide Kennedy v. Thorp, 3 Abb. Pr. (N.S.) 181; Waverly Bank vy. Hal-
sey, 57 Barb. 249.

2 State v. Benoist, 87 Mo. 500.

5 Bailey v. Mills, 27 Tex. 434; Van Hook v. Walton, 28 Tex.
59.
362 ASSIGNMENTS FOR CREDITORS.

ceived in collusion, malice, covin, and bad faith, and
tainted with secret fraud, it is void.t

To PREVENT sacriFice.—But the mere intent on the
part of the debtor to prevent a sacrifice of his property
does not necessarily and of itself-render an assignment
void. This will depend upon the purpose with which
the sacrifice is sought to be avoided. If the purpose is
to prevent a race of diligence among creditors so that
they may receive a larger dividend, it is lawful. But
if the purpose is to prevent the sacrifice that would be
caused by a forced sale so that the debtor may receive
a larger surplus after the payment of his debts, it is un-
lawful and fraudulent.’ A sale of all the debtor's prop-
erty followed immediately by an assignment of the notes
received in payment, is fraudulent, if it is made for the
purpose of preventing a sacrifice and keeping the prop-
erty for his benefit.2 If the purchase, however, is in
good faith, the giving of a note and the making of an
assignment shortly afterwards is no fraud.*

FRavuD MUST BE IN THE BEGINNING.—The only fraud
which will vitiate an assignment is fraud in its concoc-
tion. If there is no fraud in its inception, the property
vests immediately in the assignee for the benefit of the
creditors, and no subsequent fraudulent dealings can re-

 

* State v. Benoist, 37 Mo. 500; Work v. Ellis, 50 Barb. 512; Wilson y,
Pearson, 20 Ill. 81; Byrd v. Bradley, 2 B. Mon. 239; Smith v. Leavitts, 10
Ala, 92; Caldwell v. Williams, 1 Ind. 405; Fuller v. Ives, 6 McLean,
478.

* Angell v. Rosenburg, 12 Mich. 241; Shackelford v. Planter’s Bank, 22
Ala, 238; Hefner v. Metcalf, 1 Head, 577; Gere v. Murray, 6 Minn. 305;
vide Ward v. Trotter, 8 Mon. 1.

* Litchfield v. Pelton, 6 Barb. 187; Cooke y. Smith, 8 Sandf. Ch. 333;
Mills v. Carnley, 1 Bosw. 159.

* Loeschigk v. Baldwin, 88 N. Y. 826.
ASSIGNMENTS FOR CREDITORS. 363

vest the property in the debtor, or have a retroactive
effect so as to avoid the assignment itself An assign-
ment honestly made for an honest purpose can not be
defeated by proof that the assignee abused his trust,
misappropriated the property, or acted however dis-
honestly in its disposal, or that he took unwise or even
apparently dishonest means to preserve the property
from litigation or levy by a creditor,

ASSIGNEE’S PARTICIPATION.—An assignment is found-
ed upon a valuable consideration. It is not like a mere
gift, for it is supported by the debts due to the creditors.
Although the conveyance is wt terms to the assignee, it
is in fact to the creditors, and they are the real benefi-
ciaries. A fraudulent intent, therefore, on the part of
the debtor alone is not sufficient to avoid the assign-
ment.? The assignment is not void when neither the

 

1 Klapp v. Shirk, 13 Penn. 589; Shattuck v. Freeman, 1 Met. 10; Pet-
rekin v. Davis, Morris, 296; Wooster v. Stanfield, 11 Iowa, 128 ; Hotop v.
Durant, 6 Abb, Pr. 871, note; Cox v. Platt, 32 Barb. 126; 8. c. 19 How. Pr.
121; Matthews v. Poultney, 33 Barb. 127; Browning v. Hart, 6 Barb. 91;
Wilson v. Forsyth, 24 Barb. 105; Pike v. Bacon, 21 Me. 280; Gates v. La-
beaume, 19 Mo. 17; Hempstead v. Johnston, 18 Ark. 123 ; Cornish v. Dews,
18 Ark. 172; Beck v. Parker, 65 Penn. 262; Baldwin v. Buckland, 11 Mich.
389.

? Cuyler v. McCartney, 40 N. Y. 221; Hotop v. Durant, 6 Abb. Pr. 371,
note; Matthews v. Poultney, 33 Barb. 127; U.8. Bank v. Huth, 4 B. Mon.
423; Mecker v. Saunders, 6 Iowa, 61; Savery v. Spaulding, 8 Iowa, 2389;
Cox v. Platt, 832 Barb. 126; s.c. 19 How. Pr. 121; Shattuck v. Freeman,
1 Met. 10; Petrekin v. Davis, Morris 96; Wooster v. Stanfield, 11 Iowa, 128.

3 Myers v. Kinzie, 26 Ill. 36; Wise v. Wimer, 23 Mo. 237; Gates v. La-
beaume, 19 Mo. 17; Wilson v. Hifler, 7 Cold. 31; Marbury v. Brooks, 7
Wheat. 556; 8. c. 11 Wheat. 78; Bancroff v. Blizzard, 13 Ohio, 30 ; Cornish
vy. Dews, 18 Ark. 172 ; Mandel v. Peay, 20 Ark. 325; Hollister v. Loud, 2
Mich. 309 ; Governor v. Campbell, 17 Ala. 566 ; Abercrombie v. Bradford,
16 Ala. 560; Thomas v. Talmadge, 16 Ohio St. R. 484; Contra, Rathbun
y. Platner, 18 Barb. 272; Foley v. Bitter, 34 Md. 646; Chitin y. Marquardt,
17 N. Y. 28; Mead v. Phillips, 1 Sandf. Ch. 83; Wilson v. Forsyth, 24 Barb.
105; Kayses, y. Heavenrich, 5 Kansas, 324; Gera y. Murray, 6 Minn. 305;
364 ASSIGNMENTS FOR CREDITORS.

creditors nor the assignee participate in the fraud.’
Notice of the fraud to the assignee, however, is sufficient.’
An acceptance of the deed with notice of such facts as
are sufficient to put him on the inquiry will invalidate
it2 When the assignee participates in the fraud, a pre-
sumption of assent on the part of the creditors would
also involve a presumption that they have notice of the
facts which make the assignment fraudulent, and are
thus parties and participators in the fraud.*

Consrrucrion or DEED.—Fraud is always a question
of intent, for no man can justly be said to be guilty of
a fraud by accident or mistake.” The law, however,
presumes that every person intends the consequences
which necessarily flow from his acts,’ and that he un-
derstands the legal import of every instrument which
he executes. The construction of an instrument is a
question of law. Its legal effect is a matter upon
which the court ought to pass." Whenever the fraud

 

Stickney v. Crane, 35 Vt. 89; Lampson v. Arnold, 19 Iowa, 479; Irwin v.
Keen, 3 Whart. 347; Flanigan v. Lampman, 12 Mich. 58; Ruble vy. Mc-
Donald, 18 Iowa, 498 ; Pierson v. Manning, 2 Mich. 445; Stone v. Marshall,
7 Jones, (N. C.) 800. In some cases it is said that the fraudulent intent of
the debtor will vitiate the assignment when none of thecreditors have as-
sented, because no assent can be presumed to support a fraudulent assign-
ment. Townsend yv. Harwell, 18 Ala 301; Stewart v. Spencer, 1 Curt.
157; Benning v. Nelson, 23 Ala. 801; Green v. Banks, 24 Tex. 508; Bald-
win v. Peet, 22 Tex. 708.

1 Bancroft y. Blizzard, 18 Ohio, 30.

2 State v. Benoist, 37 Mo. 500; Caldwell v. Williams, 1 Ind. 405 ; Cald-
well v. Rose, 1 Smith, 190; Stewart v. Spencer, 1 Curt. 157; Contra, Pin-
neo vy. Hart, 30 Mo. 561.

® Stewart v. Spencer, 1 Curt. 157.

* Green y. Banks, 24 Tex. 508; State v. Benoist, 87 Mo. 500; vide Mar-
bury ». Brooks, 7 Wheat. 556; s.c. 11 Wheat. 78.

* Grover v. Wakeman, 11 Wendl, 187, per Senator Edmonds,

® Mackie v. Cairns, 5 Cow. 547.

" Sheldon vy. Dodge, 4 Denio, 217,
ASSIGNMENTS FOR CREDITORS. 365

is apparent upon the face of the instrument it is a ques.
tion of fraud in law. Evidence that the deed was de-
signed to be beneficial is inadmissible. There is nothing
for a jury to pass upon when the court can see that the
instrument is fraudulent on its face. The validity of
the deed is determined by the character with which
the law stamps it, without reference to extrinsic facts
as to motive. If the law imputes to the grantor a de-
sign in making the deed, no evidence of intention can
change the presumption. If the law declares the deed
to be void, it is no matter how the question of fraud in
in fact may stand.*/ When an assignment is fraudulent
on its face, it is void without reference to the actual
knowledge of either the assignee or the creditors. The
fraudulent stipulation in the deed fixes the assignee and
all the creditors claiming under it with a concurrence in
the unlawful intent.2 When the instrument, however,
appears to be fair, and its validity depends upon ex-
trinsive evidence, the question must be submitted to
the proper tribunal to determine as a matter of fact
whether it is fraudulent or not.’

SEVERAL INSTRUMENTS MAY CONSTITUTE ONE TRANS-
action.—All papers executed in pursuance of an orig-
inal design contemplated and determined upon in the
beginning, are in law deemed to constitute one trans-
action and are construed together, whether made on the

 

1 Green v. Trieber, 3 Md. 11; Malcolm v. Hodges, 8 Md. 418; Inloes
y. American Exchange Bank, 11 Md. 173; Goodrich v. Downs, 6 Hill,
438 ; Boardman v. Halliday, 10 Paige, 223; Abercrombie v. Bradford, 16
Ala. 560; Pierson v. Manning, 2 Mich. 445; Murray v. Riggs, 15 Johns.
571; Harris v. Sumner, 2 Pick. 129; Richards v. Hazard, 1 Stew. & Port.
139; Howell v. Edgar, 3 Scam. 417.

2 Palmer v. Giles, 5 Jones Eq.°75.

’ Johnson vy. McAllister, 30 Mo. 327; Dunham y. Waterman, 17 N.
Y.9.
366 ASSIGNMENTS FOR CREDITORS.

same day,’ or on different days.? The mere fact that
two or more conveyances are made at the same time has
no necessary influences upon determining whether they
constitute one transaction.? An individual may not only
execute on the same day but be preparing at the same
time a conveyance for the purpose of defrauding his
creditors, and another for the purpose of securing an
honest debt. In such case the two acts could not prop-
erly be said to be one and the same transaction, the
object and the end of one being entirely different from
the object and end of the other. It has for this reason
been held that conveyances made at different dates for
the purpose of securing different sums can not be con-
sidered as one transaction.” Whether the deeds con-
stitute one transaction is a question for the jury. A
valid instrument, however, can never be impaired by a
subsequent attempt to aid it by an invalid instru-
ment."

ONE FRAUDULENT CLAUSE VITIATES THE WHOLE DEED.
—A fraudulent stipulation makes the whole instrument.
void. When a deed is void as to part, it is void alto-
gether. The taint as to part affects the entirety.
Where a conveyance is good in part and bad in part
as against the provisions of the statute, it is void ¢n toto
and no interest passes to the grantee under the part

 

? Mussey v. Noyes, 26 Vt. 462.

* Berry v. Cutts, 42 Me. 445; Holt v. Bancroft, 30 Ala. 193; Burrows
v. Lehndorf, 8 Iowa, 96; Spaulding v. Strang, 36 Barb. 310; M’Allister
y. Marshall, 6 Binn. 888 ; Cummings vy. McCullough, 5 Ala. 824.

* Lampson v. Arnold, 19 Iowa, 479 ; Mann vy. Witbeck, 17 Barb. 388 ;
Norton y. Kearney, 10 Wis. 448.

“ Mower v. Hanford, 6 Minn. 535.

° Wynkoop v. Shardlow, 44 Barb. 84,

* Mower v. Hanford, 6 Minn. 535,

* Lansing y. Woodworth, 1 Sandf. Ch. 48,
ASSIGNMENTS FOR CREDITORS. 367

which is good. The parties to the assignment can not
produce evidence, where the validity of the assignment
is assailed, to show that the vicious,clause apparent on
its face was inserted or retained by inadvertence or
mistake, and so give to the instrument an actual charac-
ter altogether different from its apparent character.
Undoubtedly if a clause is inserted or retained by
inadvertence or mistake, and against the intention of
the parties, it may be re-formed, and upon re-formation
will be relieved of its vicious taint, and be valid as
to the creditors assailing it. But without such rectifi-
cation the instrument must stand or fall upon the char-
acter impressed upon its face by the parties, and by
them sent out upon the world as expressing the con-
tract and purposes of the parties to it.

ConsTRUED sTRIcTLY.—Assignments are often made
the means of fraud and are not regarded in the courts
with special favor. Courts, however, are under no
obligation to be astute to destroy them The legal
intendments are all in favor of their validity the same
as of other instruments.’ The same fair and reasonable
rules of construction must be applied to them as are

 

1 Albert v. Winn, 7 Gill. 446; Hyslop v. Clarke, 14 Jobns. 458 ;
Mackie v. Cairns, 5 Cow. 547; 8s. c. 1 Hopk. 873; Goodrich v. Downs, 6
Hill, 488 ; McClurg v. Lecky, 3 Penna. 88; Robins v. Embry, 18. & M.
Ch. 207 ; Jacot v. Corbett, 1 Chev. Eq. 74; Howell v. Edgar, 3 Scam.
417; Dana v. Lull, 17 Vt. 8390; Caldwell v. Williams, 1 Ind. 405; Pierson
v. Manning, 2 Mich. 445; Green v. Branch Bank, 38 Ala, 643; Greenleaf
v. Edes, 2 Minn. 264; Palmer v. Giles, 5 Jones Eq. 75; vide Bradway’s
Estate, 1 Ashm. 212.

? August v. Seeskind, 6 Cold. 166; Hooper v. Tuckerman, 3 Sandf.
311.

> Heacock v. Durand, 42 Ill. 230; Stewart v. English, 6 Ind. 176.

4 Read v. Worthington, 9 Bosw. 617.

* Turner v. Jaycox, 40 Barb. 164; s.c. 40 N. Y. 470; Townsend v.
Stearns, 32 N. Y. 209; Read v. Worthington, 9 Bosw. 617.
368 ASSIGNMENTS FOR CREDITORS.

adopted in ascertaining the meaning of other instru-
ments."

Onvs proBanpr.—The onus is upon the creditor who
assails an assignment to show that it is in plain viola-
tion of the law.? It is a universal rule in the construc.
tion of all deeds that fraud is never to be presumed.
The reason of the rule rests upon such plain principles
of justice and propriety, that it needs not the force of
argument or the weight of authority to support it.
The party that charges fraud is bound to prove it, and
that, too, by legal and competent evidence. This evi-
dence may be found in the deed itself, or it may be
established by other affirmative proof. But still, in
both cases, fraud either actual or constructive must be
brought to light with reasonable certainty and shown
to be fairly applicable to the agreement sought to be
impeached. Mere conjecture or surmise, however prob-
able or persuasive, is never allowed to establish fraud?
Where an instrument is ambiguous in its terms and ad-
mits of two constructions, that interpretation should be
given to it which will render it legal and operative
rather than that which will render it illegal and void.
If mere words are relied on as the sole evidence of
guilt, it is not enough that they admit of a construction
consistent with the imputed wrong unless they are in-
consistent also with a lawful act and an honest purpose.’

 

* Whipple v. Pope, 33 Ill. 384.

? Townsend v. Stearns, 32 N. Y. 209.

8 He parte Conway, 12 Ark. 802.

* Grover v. Wakeman, 11 Wend. 187; Bank vy. Talcott, 22 Barb. 550;
Darling v. Rogers, 22 Wend. 483; Jewett v. Woodward, 1 Edw. 195 ;
Rapalee vy. Stewart, 27 N. Y.810; Whipple v. Pope, 38 Ill. 884; Booth v.
McNair, 14 Mich. 19; Townsend vy. Stearns, 32 N. Y. 209; Shackelford v.
Planters’ Bank, 22 Ala> 288.

* Townsend y. Stearns, 32 N. Y. 209,
ASSIGNMENTS FOR CREDITORS. 369

It is not, moreover, by selecting isolated words, inadver-
tently used, and giving them their most unfavorable
construction, that fraud is to be imputed. The whole
tenor of the instrument is to be taken into view in
pronouncing upon its general character.

No INFERENCE THAT DEBTOR CONTEMPLATED A VIO-
LATION OF THE TRUST.—The trust, like all others confided
to human hands, is liable to abuse, but this is no argu-
ment against its validity.? ‘The law will not defeat an
instrument by inferring that the debtor contemplated
an illegal act on the part of the assignee? It presumes
that the assignee will apply a general power which can
have a lawful operation to a lawful purpose. When
the provision is susceptible of an honest application, it
can not be said to have that necessary evil tendency
which justifies the inference of a fraudulent intent.‘
The question, therefore, in construing an assignment is
not whether a fraud may be committed by the assignee,
but whether the provisions of the instrument are such
that, when carried out according to their apparent and
reasonable intent, they will be fraudulent in their opera-
tion. It is only when the authority is express to do
an Ulegal act that the instrument will be held void.*

For the same reason the possibility of a mistake or
misapprehension on the part of the assignee will not
warrant the total abrogation of an instrument.2 A

 

? Brigham v. Tillinghast, 15 Barb. 618; s. c. 13 N. Y. 215.

* Hz parte Conway, 12 Ark. 302; Ward y. Tingley, 4 Sandf. Ch. 476 ;
Hoffman v. Mackall, 5 Ohio St. R. 124.

* Kellogg v. Slauson, 11 N. Y. 302.

‘ Watkins v. Wallace, 19 Mich. 57.

® Kellogg v. Slauson, 11 N. Y. 302; s. c. 15 Barb. 56; Brigham vy. Til-
linghast, 15 Barb. 618; s.c. 13 N. Y. 215; Ward v. Tingley, 4 Sandf. Ch.
476; Berry v. Hayden, 7 Iowa, 469; Norton v. Kearney, 10 Wis. 443.

° Eyre v. Beebe, 28 How. Pr. 333,

24
370 ASSIGNMENTS FOR CREDITORS.

power will not be implied in order to overturn an in-
strument. The reservation of a supposed existing right
will not be construed into the grant of a power.’ But
if there is a stipulation in the deed which makes it
fraudulent in law, the court will not look to the cir.
cumstances of the case to ascertain whether it can ever
become operative” It is likewise immaterial that a
power is contingent, and that no occasion has arisen
for its operation. The question is what does it enable
the debtor to accomplish, and the law presumes that he
intends all that the instrument provides? The mere
fact that two provisions independent in their nature are
found in the same instrument, can never avail to stamp
upon them, or either of them, the character of fraud
when the provisions separately construed are admitted
to be lawful.*

Rue oF construction.—The safe rule of construc
tion is to regard every assignment which operates to
delay creditors for any purpose whatever not distinctly
calculated to promote their interests as contrary to the
policy of the statute.?

Law OF STATE WHERE MADE—The fact that an in-
strument can not be enforced in another State is no
reason why it should not be enforced by the courts of
the State where it is made. To allow the laws of other
States to control the legality of the acts and contracts
of its own citizens in their domestic operations would

 

* Van Nest v. Yoe, 1 Sandf. Ch. 4.

* Boardman v. Halliday, 10 Paige, 223; Sheldon v. Dodge, 4 Den.
217.

* Grover vy. Wakeman, 11 Wend. 187; 8. 0. 4 Paige, 28; Mead v. Phil-
lips, 1 Sandf. Ch. 83.

“ Nicholson v. Leavitt, 4 Sandf. 252; s.c.6 N. Y. 510; 8. 0, 10 N. Y.591.

* Grover vy. Wakeman, 11 Wend. 187; s, c. 4 Paige, 23,
ASSIGNMENTS FOR CREDITORS. 371

violate every principle of governmental independence.
Lawful acts done within one State can not be made
unlawful by provisions having no authority beyond the
territory of the State adopting them. If no assign-
ment were valid which would not be valid wherever
the debtor had property, there would be few valid
assignments. The only ground which a court can have
for setting aside an assignment made in the State where
the court sits is because it violates the laws of that State,
and those laws can not be violated by a disregard of
any but their own policy, and the court has no call or
jurisdiction to enforce any external or foreign policy.’

CoNTEMPORANEOUS CIRCUMSTANCES.—It is not suffi-
cient to invalidate an assignment, that the debtor at the
time of making it ise embarrassed,’ or executes it vol-
untarily,® or without the request or knowledge of the
creditors.‘ It is not necessary that the creditors shall
be consulted, or that the fact shall appear upon the
face of the deed.’ The assignment may convey all the
debtor’s property.® It need not convey all.’ An as-
signment by a firm need not convey the separate estates
of the partners.®

 

1 Watkins v. Wallace, 19 Mich. 57; Frink v. Buss, 45 N. H. 3265.

? Layson v. Rowan, 7 Rob. (La.) 1.

8 Layson v. Rowan, 7 Rob. (La.) 1.

* Reinhard v. Bank of Kentucky, 6 B. Mon. 252.

® Brashear v. West, 7 Pet. 608; Danee v. Seaman, 11 Gratt. 78.

® Layson v. Rowan, 7 Rob. (La.) 1.

7 Meeker y. Saunders, 6 Iowa, 61; Berry v. Matthews, 13 Md. 537;
Price v. De Ford, 18 Md. 489; Doremus v. Lewis, 8 Barb. 124; Wilson v.
Forsyth, 24 Barb. 105; vide Smith v. Woodruff, 1 Hilt. 462. Whena
statute requires that it sha]l convey all, it is sufficient if the deed by the
terms of the law where it is made conveys all. Frink y. Buss, 45 N. H.
325 ; Watkins v. Wallace, 19 Mich. 57.‘

® Blake v. Faulkner, 18 Ind. 47; Garner v. Frederick, 18 Ind. 507 ;
Guerin v. Hunt, 6 Minn. 875; 8. c. 8 Minn. 477; Contra, Simmons v.
Curtis, 41 Me, 373; Derry Bank v. Davis, 44 N. H. 548,
372 ‘ ASSIGNMENTS FOR CREDITORS.

SotvENT DEBTOR.—As assignments for the benefit of
creditors are generally made by insolvent debtors, it is
not unfrequently said that such dispositions of property
ean be made only by that class of persons. But this
doctrine has no foundation in principle. These assign-
ments are in their nature simple trusts for the payment
of debts. The power to create such trusts is not pecu-
liar to insolvent men. On the contrary, it is a power
more unquestionably possessed by men who are entirely
solvent. Persons of undoubted ability may dispose of
their property as they please, so far as the question of
power merely is concerned. This right of disposition
on general principles of law and justice was never doubt-
ful except in cases of a debtor’s inability to meet his
engagements. It was the insolvency rather than the
solvency of the debtor which suggested the doubt in
regard to the right of putting the whole or any part of
his property in trust for the benefit of creditors. It is
undoubtedly true that a solvent as well as an insolvent
person may make a fraudulent assignment. In either
condition the question is one of fact, depending mainly
on other circumstances where the instrument is on its
face free from obnoxious provisions: In either case, if
the intention is to hinder or delay creditors, the trans-
action is fraudulent, but that intention can not be in-
ferred from one condition of the debtor any more than
from the other.

Lreat ricuts.—The validity of an assignment must
in both cases be determined according to the respective
legal rights of the debtor and the creditors. The law

 

* Ogden y. Peters, 21 N. Y. 23; 8.c. 15 Barb. 560; Angell v. Rosen-
burg, 12 Mich. 241 ; Contra, Van Nest v. Yoe, 1 Sandf. Ch. 4 ; Planck v.
Schermerhorn, 8 Barb. Ch. 644; Burt v. McKinstry, 4 Minn. 204 ; in re
Randall and Sunderland, 8 B. R. 4; s.c. 2L. T. B. 69; 8, c. Deady, 557.
ASSIGNMENTS FOR CREDITORS. 373

provides that the debtor shall fulfil his obligations and
on his default gives to the creditors a remedy for the
recovery of their demands and a sale of the property of
the debtor for their payment. This is a strict legal
right. The law gives to the creditors alone the right
to determine whether the debtor shall have further in-
dulgence, or whether they will pursue their remedy for
the collection of their debts. If the real object of the
debtor, therefore, is to gain time, to prevent the speedy
sale and conversion which an execution would inevit-
ably accomplish, and to protect his interests in the sur-
plus by placing the property beyond the reach of the
process of the law, then, in the very language of the
statute, he hinders, delays, and ultimately defrauds his
creditors, whatever may be the pretence under which he
cloaks the act.’

To PREVENT A sAcriricE.—Where the property
of the debtor is insufficient to pay his debts, the
desire to protect it from sacrifice, and have it real-
ize as much as possible, is not inconsistent with fair
dealing and honesty, and instead of violating the
policy of the law or the rights of creditors is in har-
mony with both, and exempt from the charge of fraud.’
But where the property at the time of the assignment
is much more than sufficient to satisfy all demands, the
accomplishment of this object can only be at the ex-
pense of the creditors and for the benefit of the debtor.
The law, however, does not tolerate such a purpose on
the part of the debtor. He has no right to protect his
property from sacrifices at the expense of his creditors.

 

1 Van Nest v. Yoe, 1 Sandf. Ch. 4; Planck v. Schermerhorn, 3 Barb.
Ch. 644 ; Knight v. Packer, 1 Beasley, 214 ; London v. Parsley, 7 Jones
(N. C.) 818; Burt v. McKinstry, 4 Minn. 204; Lehmer v. Herr, 1 Duvall, 360.

Angell v. Rosenburg, 12 Mich. 241; Burt v. McKinstry, 4 Minn. 204;
Ely v. Cook, 18 Barb. 612.
374 ASSIGNMENTS FOR CREDITORS.

The latter have the right to demand their debts in full
without delay where the assets of the debtor are suffi-
cient for that purpose! The true rule, therefore, is that
the intent to avoid a sacrifice will invalidate an assign-
ment when the sacrifice is sought to be prevented by
the debtor himself so as to enable him to realize some-
thing by way of a surplus or otherwise,’ but not where
the sole or primary intent is to enable the creditors to
realize their demands and prevent loss or injury to any
one.*

BurDEN OF PROVING soLvENcy.—The burden of
proving the solvency of the debtor rests upon the
creditor who assails the assignment.’ A mere nominal
difference between the assets and liabilities is not
sufficient, especially where the former includes debts
due to the assignor at their face without reference to
the question whether they are collectible.” Where the
excess of assets is so unreasonably large as to force the
conclusion that the assignment is made in the interest
of the debtor, and to protect him from the sacrifice
attending a forced sale, rather than for the benefit of
creditors, then the assignment may be fraudulent, but
the question of reasonableness or unreasonableness of
the excess must depend upon a variety of circumstances
amongst which the convertibility of the assets into
money is the most important.®

 

> Burt v. McKinstry, 4 Minn. 204.

* Rokenbaugh v. Hubbell, 5 Law Rep. (N. 8.) 95; 8. c. 15 Barb, 563,
note; Angell vy. Rosenburg, 12 Mich. 241.

* Rokenbaugh v. Hubbell, 5 Law Rep. (N. &.) 95; 8. c. 15 Barb. 563,
note; Angell v. Rosenburg, 12 Mich. 241.

ellogg v. Slauson, 11 N. Y. 302; 8. c. 15 Barb. 56; Haven v.
5 N. H. 118.

Ya ~ Northrop, 44 N. Y. 107; Guerin vy. Hunt, 8 Minn.
477; 8.0. 6 dun. .

° Guerin vy. Hunt, 8 Minn. 477; 8. c. 6 Minn. 875,
ASSIGNMENTS FOR OREDITORS. 375

Desror’s BELIEF.—The debtor’s belief that he is sol-
vent 1s only proper evidence to consider in determining
the intent with which the assignment is made.’ It is
susceptible of an explanation consistent with honesty
of purpose. So far as it relates to the charge of actual
fraud, much must depend upon the strength of the be-
lief. That might approach very near to a certainty and
thus justify the inference,” but a belief that a surplus of
only the most trifling character will remain, while with-
out an assignment the property will be so sacrificed
that a large portion of his debts will remain unpaid,
furnishes very slight if any evidence of fraud.’ The
debtor may believe himself solvent, and yet have so
much doubt upon the subject from the uncertain valu-
ation of his property, and particularly of that part of it
which consists of choses in action and the representa-
tions of his friends, that he may honestly suppose that
an assignment will prove beneficial to his creditors.
He may also suppose that his property is sufficient for
the payment of his debts, and yet that, before he can
render it available, it will probably be so far reduced by
hasty or forced sales, and his liabilities so far increased
by the addition of costs created by anxious and com-
peting creditors that it will become inadequate to satis-
fy all his debts. Under such a supposition, and in such
circumstances, an assignment will be valid.’ If, more-

 

' Bates v. Ableman, 13 Wis. 644 ; Contra, Van Nest v. Yoe,1 Sandf.
Ch.4; Baldwin v. Buckland, 11 Mich, 389; Burt v. McKinstry, 4 Minn.
204,

? Ogden v. Peters, 21 N. Y. 28; 8. c. 15 Barb. 560; Angell v. Rosen-
burg, 12 Mich. 241.

5 Bates v. Ableman, 13 Wis. 644,

* Ogden vy. Peters, 21 N. Y. 23; 8. c. 15 Barb. 560; Angell v. Rosen-
burg, 12 Mich. 24; Ely v. Cook, 18 Barb. 612.

° Ogden v. Peters, 15 Barb. 560; 8. c. 21 N. Y. 28; Rokenbaugh v.
Hubbell, 5 Law Rep. (N. 8.) 95; s. c. 15 Barb. 563, note; Bates v. Able-
man, 13 Wis. 644; Angell v. Rosenburg, 12 Mich. 241.
376 ASSIGNMENTS FOR CREDITORS.

over, he is at the time unable to pay his debts accord-
ing to the usage of trade, or is unable to proceed in his
business without some general arrangement with his
creditors by way of extension of time of payment,
then he is insolvent and can rightfully make an assign-
ment. Even the belief that he is solvent when in fact
he is not so, will not invalidate an assignment if it is
made in good faith.’

SELECTION OF ASSIGNEE.—The debtor may select the
assionee.® The assignee may be a creditor,* or a joint
debtor. He need not be a creditor.© He may be a
relative.” An assignment from one partner to another
of the partnership property to secure the payment of
the partnership debts would be a palpable attempt on
their part to keep the property under their own con-
trol, for, unless there is a surplus, the assignor would
have no interest in the partnership effects which could
pass by the assignment so as to give any greater interest
to the assignee than he before possessed. A cor-
poration may select its president.’ The reservation
of the power to fill any vacancy that may occur is
valid, for it is simply designed to keep the trust alive and

 

* Savery v. Spaulding, 8 Iowa, 239.

? Savery v. Spaulding, 8 Iowa, 239; Contra, Van Nest v. Yoe, 1 Sandf.
Ch.4; Burt v. McKinstry, 4 Minn. 204.

* Wilt v. Franklin, 1 Binn. 502; Nicholls v. McEwen, 17 N. Y. 22; 8.¢.
21 Barb. 65 ; vide Burd v. Smith, 4 Dall. 76.

‘ Hx parte Conway, 12 Ark, 302; Wooster v. Stanfield, 11 Iowa, 128 ;
Frink vy. Buss, 45 N. H. 325.

5 Wooster vy. Stanfield, 11 Iowa, 128.

° Wilt vy. Franklin, 1 Binn, 502; U. 8. Bank v. Huth, 4 B. Mon. 423;
Repplier v. Buck, 5 B. Mon. 96.

" Winchester v. Crandall, 1 Clarke, 371; Baldwin v. Buckland, 11
Mich. 389.

* Sewall v. Russell, 2 Paige, 175.

° Pope v. Brandon, 2 Stew. 401.
ASSIGNMENTS FOR CREDITORS. : 377

in active operation,’ but a power to remove the assignee
gives a control over him and holds him in obedience
to the debtor, and is equivalent to a power on the part
of the debtor to control and direct the administration of
the whole trust fund, and, therefore, renders the assign-
ment void Although a failing debtor may select his
own trustee, he has no right to vest his estate in im-
proper or unworthy persons, and thus jeopardize the
rights of creditors. It is his duty as an honest man to
select such a person as will afford a reasonable assur-
ance to the creditors that the fund will be safe in
his hands?

ASSIGNEE’S QUALIFICATIONS.—The assignee must be a
man qualified and competent to discharge the duties of
the trust which he is to assume, and of sufficient charac-
ter and pecuniary ability to afford the assurance that
the trust will be faithfully and honorably administered.
To prevent abuse of the right of selection and to avoid
its being made a convenient engine of fraud, the utmost
good faith is required of the debtor. The selection
must be made with reference to the interests of the
creditors rather than that of the debtor. Hence, if the
assignee is so deficient in age, health,’ business capacity,°
or standing, pecuniary responsibility,’ or character for
integrity,’ that a prudent man honestly looking to the
interests of the creditors alone would not be likely to

 

? Robins v. Embry, 1 8. & M. Ch. 207; Vansands vy. Miller, 24 Conn.
180 ; vide Planck v. Schermerhorn, 3 Barb. Ch, 644.

? Robins v. Embry, 1 8. & M. Ch. 207.

5 Reed vy. Emery, 8 Paige, 417.

* Cram vy. Mitchell, 1 Sandf. Ch. 251,

> Currie v. Hart, 2 Sandf. Ch. 353; .Cram v. Mitchell, 1 Sandf. Ch. 251.

®* Cram vy. Mitchell, 1 Sandf. Ch. 251 ; Guerin v. Hunt, 6 Minn. 375;
s. c. 8 Minn. 477; Walker vy. Adair, Bond, 158.

7 Reed v. Emery, 8 Paige, 417; Haggarty v. Pittman, 1 Paige, 298 ;
Connah vy. Sedgwick, 1 Barb. 210 ; Angell v. Rosenburg, 12 Mich, 241,

® Clark vy. Groom, 24 Ill, 316.
378 ASSIGNMENTS FOR CREDITORS.

select him as a proper person for the performance of the
trust, then his selection will furnish an inference more
or less strong according to the circumstances that the
debtor in making the selection is actuated by some
other motive than the desire to promote the interests of
the creditors. This inference will be strengthened if
the assignee is a clerk or near relative, or a person
likely to be easily influenced by the debtor, as this
will tend to raise a presumption that the assignment
is intended to be used for the debtor’s benefit, or that
there is some secret trust in his behalf, or that there is
an intention to place the property beyond the reach of
the creditors.’

Non-residence,* blindness,° want of learning,’ con-
flicting interests," and insolvency *® are regarded as dis-
qualifications. In respect to the latter, the principle is
not confined to actual insolvency, but extends to any
case where the property or pecuniary means of the
assignee are clearly inadequate to afford a proper re-
sponsibility, or to any state of pecuniary embarrassment

 

1 Lehmer y. Herr, 1 Duvall, 360.

* Angell v. Rosenburg, 12 Miclf. 241.

5 Reed v. Emery, 8 Paige, 417. Assignments are frequently made to the
confidential friends or connections of the assignor and the property kept
by the trustees for their own personal use, but more generally for the use
of the assignor, and hence it becomes a convenient way in which debtors
in failing circumstances are enabled to place their property out of the
reach of attaching creditors, and at the same time use it for their own
purposes. The difficulty of making even responsible trustees account to
creditors is so great as usually to prevent their attempting it, and it is of
course never attempted in the more common case where the trustee is not
responsible. Beers v. Lyon, 21 Conn. 604.

* Cram v. Mitchell, 1 Sandf. Ch. 251; Cox vy. Platt, 32 Barb. 126; 8. c.
19 How. Pr. 121.

* Cram vy. Mitchell, 1 Sandf. Ch. 251.

*Cram y. Mitchell, 1 Sandf. Ch. 251; Gueron y. Hunt, 6 Minn. 375;
8s. c. 8 Minn, 477.

* Hays v. Doane, 8 Stockt. 84.

® Angell y. Rosenburg, 12 Mich, 241.
ASSIGNMENTS FOR CREDITORS. 379

likely to deprive the creditors of this security’ A sub-
sequent insolvency is not sufficient, for it must be an
insolvency existing at the time of the execution of the
assignment.’ The insolvency of the assignee must, how-
ever, be known to the debtor in order to invalidate the
assignment.> His general reputation in the neighborhood
where he resides, and among men whose dealings and
interests prompt them to observation and inquiry may
be shown for the purpose of proving such knowledge.

Merrety a Bapex.—The existence of disqualifica-
cations is presumptive but not conclusive evidence of
fraud. The intent of the debtor is to be ascertained,
not by any one fact or circumstance, but by every fact
and circumstance that may throw light upon the trans-
action.” Thus, in the case of insolvency, the high char-
acter of the assignee for integrity and business capacity
may sometimes compensate in a great measure if not en-
tirely for his want of pecuniary means, and afford near-
ly if not quite as strong assurance to creditors that the
funds will be safe in his hands, and that the trusts will
be faithfully executed. An agreement after the execu-
tion of the deed not to put it on record for a few days
does not vitiate the assignment. The fact connected
with others may be some evidence of actual fraud, but
it does not establish a secret agreement under which
there is a reservation of any benefit to the grantor.’

 

Angell vy. Rosenburg, 12 Mich. 241.

? Jackson vy. Cornell, 1 Sandf. Ch. 348,

5 Browning v. Hart, 6 Barb. 91.

* Angell vy. Rosenburg, 12 Mich. 241.

® Reed v. Emery, 8 Paige, 417 ; Wilson v. Ferguson, 10 How. Pr. 175;
Pearce v. Beach, 12 How. Pr. 404; Clark v. Groom, 24 Ill. 316; Guerin v.
Hunt, 6 Minn. 375; s. c. 8 Minn. 477; Angell v. Rosenburg, 12 Mich, 241.

° Angell vy. Rosenburg, 12 Mich. 241; Pearcev. Beach, 12 How. Pr. 404;
Clark v. Groom, 24 Ill. 316.

* Hoopes y. Knell, 831 Md. 550; M’Kinney v. Rhoads, 5 Watts, 343;
vide Hafner y. Irwin, 1 Ired. 490.
380 ASSIGNMENTS FOR CREDITORS.

CHANGE OF PossESSION.—It is not necessary that
a change of possession should accompany the trans-
fer. The assignee may, for his own accommodation,
permit the debtor to remain in possession,’ espec-
ially if the creditors consent.? The retention of pos-
session is, however, a badge of fraud.* The assignee
may also employ the debtor as his agent when such
employment is not a condition of executing the
assignment nor the result of a prior positive engage-
ment.? Mere expectation on the part of the debtor that
he will be employed is not sufficient to invalidate an

 

» Mitchell v. Willock, 2 W. & 8. 253; Fitler v. Maitland, 5 W. & 8S.
807; Dallam v. Fitler, 6 W. & S. 8323; Cameron vy. Montgomery, 135. & R.
128; Vernon y. Morton, 8 Dana, 247; Waltersv. Whitlock, 9 Fla. 86;
Strong vy. Carrier, 13 Conn. 319; Osborne vy. Fuller, 14 Conn. 529; Klapp
v. Shirk, 18 Penn. 589 ; Caldwell v. Rose, 1 Smith, 190 ; Caldwell v. Wil-
liams, 1 Ind. 405; Moore v. Smith, 85 Vt. 644; State v. Benoist, 37 Mo.
500; Contra, Hower v. Geesaman, 17 5. & R. 251; Dewey v. Adams, 4 Edw.
Ch. 21 ; Hart v. Gedney, 1 Law Rep. 69; Ingraham v. Wheeler, 6 Conn. 277.

* Vredenburgh y. White, 1 Johns. Cas. 156.

* Scott v. Ray, 18 Pick. 360.

* Van Nest v. Yoe, 1 Sandf. Ch. 4; Hitchcock v. St. John, 1 Hoff, 511;
Forbes vy. Logan, 4 Bosw. 475; Ball v. Loomis, 29 N. Y. 412; Jacobs v.
Remsen, 36 N. Y. 668; Livermore v. Northrop, 44 N. Y. 107; Boyden v.
Moore, 11 Pick. 162; Vernon vy. Morton, 8 Dana, 247; Pitts v. Viley, 4
Bibb. 446 ; Cummings v. McCullough, 5 Ala. 324; Byrd v. Bradley, 2B.
Mon. 239; Strong v. Carrier, 18 Conn. 319; Wright v. Linn, 16 Tex. 34;
Flanigan y. Lampman, 12 Mich. 58; Terry y. Butler, 43 Barb. 395; Van
Hook v. Walton, 28 Tex. 59.

* Browning v. Hart, 6 Barb. 91; Nicholson v. Leavitt, 4 Sandf, 252;
8.¢.6 N. Y. 510; 8s. c. 10 N. Y. 591; Ogden v. Peters, 15 Barb. 560; 8. ¢.
21 N. Y. 23; Rokenbaugh v. Hubbell, 5 Law Rep. (N. $.) 95; s.c. 15 Barb.
563; Pearson v. Rockhill, 4 B. Mon. 296; Tompkins v. Wheeler, 16
Pet. 106; Casey v. Janes, 37 N. Y. 608; Gordon r. Cannon, 18 Gratt. 387;
Beamish y. Conant, 24 How. Pr. 94; Wilbur vy. Fradenbur gh, 52 Barb.
474; Fitler v. Maitland, 3 W. & S. 307 ; Van Hook vy. Walton, 28 Tex. 59;
Blow vy. Gage, 44 Ill. 208; Baldwin v. Buckland, 11 Mich. 389; Deckard
v. Case, 5 Watts, 22; Vernon v. Morton. 8 Dana, 247; Shattock v. Free-
man, 1 Met. 10; Forbes v. Scannell, 18 Cal. 242; Savery v. Spaulding, 8
Towa, 239; Hubbard y. Winborne, 4 Dev. & Bat. 137; Hall v. Wheeler,
13 Ind. 871.
ASSIGNMENTS FOR CREDITORS. 381

assignment.’ Such employment is, however, a badge of
fraud.’ In all cases where the debtor is left in posses-
sion, it is imperative for the party supporting the valid-
ity of the transaction to prove that the assignment was
executed in good faith, and without any intent to de-
fraud.® If there is no change in the course of the busi-

ness after the execution of the assignment it is a badge
of fraud.*

Deptor’s apvicr—Every insolvent debtor has at
least a moral interest in the advantageous disposition
of the property in order that it may go as far as possible
in the payment of his debts and the satisfaction of his
creditors, and, therefore, any suggestion offered by him
which may be useful to the assignee and beneficial to
the creditors, so far from showing that he intended by
the assignment to defraud his creditors, indicates that
he was actuated by good motives from the beginning.®

PowEr oF REvocATION.—The debtor must part with
the property free from any control over, or interference
with it, and from any contingency on which he may or
may not resume it at his pleasure.® A personal trust

 

4 Ogden v. Peters, 15 Barb. 560; s. c. 21 N. Y. 23; Nicholson v.
Leavitt, 4 Sandf. 252. In Connecticut the debtor can not be employed
before the inventory is returned to the court of probate, Peck v. Whiting,
21 Conn. 206.

? Jackson v. Cornell, 1 Sandf. Ch. 348; Wilson v. Ferguson, 10 How.
Pr. 175; Connah y. Sedgwick, 1 Barb. 210 ; Linn v. Wright, 18 Tex. 317;
Guerin vy. Hunt, 6 Minn. 375; 8. c. 8 Minn. 477.

5 Mead v. Phillips, 1 Sandf. Ch. 83; Cram vy. Mitchell, 1 Sandf. Ch. 251.

4 Wilson vy. Ferguson, 10 How. Pr. 175 ; Connah vy. Sedgwick, 1 Barb.
210; Cummings v. McCullough, 5 Ala. 324; Adams vy. Davidson, 10 N.
Y. 309 ; Pine v. Rikert, 21 Barb. 469; Moffat v. Ingham, 7 Dana, 495 ;
Smith v. Leavitts, 10 Ala. 92.

’ Eyre v. Beebe, 28 How. Pr. 333.

® Whallon v. Scott, 10 Watts, 287; vide Hafner v. Irwin, 1 Ired. 490 ;
Dana y. Bank of U. 8.5 W. & 8. 223; Planters’ and Merchants’ Bank v.
Clarke,7 Ala. 765; Janney v. Barnes, 11 Leigh, 100; Sheppards y. Turpin,
3 Gratt. 401.
382 ASSIGNMENTS FOR CREDITORS.

to the assignee to terminate upon his death or resigna-
tion, with full power to resign, renders the assignment
fraudulent. When a power of revocation is reserved
to the debtor, the necessary inference is that the as-
signment is made with the intent to delay, hinder, or
defraud creditors, for its only effect is to mask the
property,’ even though it is only to be exercised in case
any creditor refuses to assent to the deed.’ A power
to make loans on the security of the estate is equivalent
to a power of revocation.*

PowER TO SUBSEQUENTLY DECLARE THE USES.—Every
assignment is absolutely void if it does not appoint
and declare the uses for which the property is to be
held, and to which it is to be applied. A provision
that the uses shall be subsequently declared by the
debtor will not do. They must accompany the in-
strument and appear on its face, in order to rebut the
conclusive presumption of a fraudulent intent, which
would otherwise arise.” The reason is manifest. If
an assignment reserves to the debtor the right to
declare or change the uses at some subsequent time,
the creditors can never know what their rights are,
so as to render it safe for them to attempt to assert
those rights in any suit or proceeding either at law or
in equity. For if any one of such creditors should in-
stitute a suit to compel the assignee to account and
pay over the trust fund as directed by the assignment,
the debtor would unquestionably exercise the discretion

 

? Smith v. Hurst, 10 Hare, 30; s.c. 22 L. J. Ch. (N. 8.) 289; s.c. 17
Jur. 30; s. c. 15 Eng. L. & Eq. 520.

2 Riggs v. Murray, 2 Johns. Ch. 565; s.c. 15 Johns, 571; Cannon v.
Peebles, 4 Ired. 204; 8. c. 2 Ired. 449.

® Hyslop v. Clarke, 14 Johns. 458,

4 Sheppards v. Turpin, 3 Gratt. 373.

* Grover vy. Wakeman, 11 Wend. 187; 8. c. 4 Paige, 28; Harvey vy.
Mix, 24 Conn. 406; Burbank v. Hammond, 3 Sumner, 429.
ASSIGNMENTS FOR OREDITORS. 383

of preferring other creditors to him, and no prudent
man would subject himself to the costs of a fruitless
litigation under such an assignment for his pretended
benefit.

The effect of such an assignment therefore is to place
the creditors directly within the power of the debtor, and
to compel them to acquiesce in such terms as he may think
proper to prescribe, as the only condition upon which
they can get any part of the proceeds of the property
of their debtor. It furnishes the means for inducing
them to relinquish a part of their claims or to refrain
from enforcing them against the trust fund. It enables
the debtor to set his creditors at defiance, and compel
them to bid against each other for his favor. To place
them in such a situation is clearly a fraud upon them,
and must necessarily hinder and delay them in the col-
lection of their debts.t So long, therefore, as the debtor
is permitted to make an assignment of his property in
trust for the payment of his debts without consulting
his creditors on the subject, it is absolutely necessary
for the protection of their rights that the equitable in-
terests in the assigned property shall be fixed and de-
termined by the assignment itself?

SupsEqUENT scHEDULES.—The limitation of the
right to declare the uses to a certain period does not
obviate the objection. The law requires that the
assignment must itself fix and determine the rights of
the creditors in the assigned property. The principle
is the same whether the debtor reserves the right to
determine the preferences to be given within sixty days,
six months, or three years.’ The effect of a provision

 

1 Boardman y. Halliday, 10 Paige, 223; Barnum v. Hempstead, 7
Paige, 568; Gazzam v. Poyntz, 4 Ala. 374.

2? Averill vy. Loucks, 6 Barb. 470; Mitchell v, Stiles, 18 Penn. 306.

® Averill vy. Loucks, 6 Barb. 470.
384 ASSIGNMENTS FOR CREDITORS.

that the debtor may at a future period prepare and an-
nex schedules of the debts, giving preferences to the
creditors, is substantially to confer upon him the right
to give future preferences among his creditors, and con-
sequently renders the deed fraudulent." Even if the
schedules are prepared and annexed subsequently, the
assignment can not be considered valid even from the
time when such schedules are annexed. If the assign-
ment is fraudulent and void when executed, it can not
be rendered valid and operative by any subsequent act
of the debtor performed in the execution of a fraudu-
lent power.’

PowER TO GIVE SUBSEQUENT PREFERENCES CAN NOT
BE GIVEN TO ANOTHER.—<As the debtor can not reserve
the power to himself of giving a preference, he can not
legally confer it on the assignee. The same objection
in principle exists in both cases. A discretionary
power, therefore, in the assignee to pay off or discharge
any of the claims in preference to other debts provided
for in the assignment, renders the instrument void.
When the right depends upon a contingency, the fact
that the creditors who may be postponed will not be
injured is immaterial, for no future event can make a
conveyance valid which contains illegal provisions.* A
direction to the assignee to pay such other debts as the
debtor may thereafter specify out of any surplus which
may be left after paying all the debts named in the in-

 

* Averill v. Loucks, 6 Barb. 470.

* Averill vy. Loucks, 6 Barb. 470; Mitchell v. Stiles, 13 Penn. 306 ; vide
Hotop v. Neidig, 17 Abb. Pr. 332.

* Barnum v. Hempstead, 7 Paige, 568; Boardman vy. Halliday, 10
Paige, 223 ; Strong v. Skinner, 4 Barb. 546; Sheldon y. Dodge, 4 Den.
217 ; Gazzam y. Poyntz, 4 Ala. 874; Smith v. Hurst,10 Hare, 30; 5. c.
15 Eng. L. & Eq. 520; 8. c.17 Jur. 80; 22 L. J. Ch. (N. 8.) 289.

* Sheldon vy. Dodge, 4 Denio, 217.
ASSIGNMENTS FOR CREDITORS. 385

strument does not vitiate it The principle does not
apply to a clause constituting the creditors who may
notify the assignee before a certain day a third class in
order of payment.”

Ficritrous pests.—An appropriation of the property
to the payment of debts not owing by the assignor and.
not contracted on his account,’ or for a larger sum than
is due,‘ to the prejudice of his creditors, is evidence of
fraud. This will not, however, make the assignment
void unless the assignee participates in the fraud.» No
creditor is concluded by taking under the assignment
from impeaching any of the debts attempted to be se-
cured by it, and showing fraud and collusion in such of
them as may stand in his way, and the payment of
which would operate to his prejudice. The impeached

 

} Hall v. Wheeler, 13 Ind. 371.

? Ward v. Tingley, 4 Sandf. Ch. 476; it has been held that a provision
that a certain sum under the direction of the debtor shall be paid to other
creditors is good; Graham y. Lockhart, 8 Ala. 9; and that a provision
that the debtor shall be at liberty to direct other creditors to be paid in
like manner as those provided for in the assignment is good; Cannon y.
Peebles, 2 Ired. 449; 8. c. 4 Ired. 204.

* Henderson y. Haddon, 12 Rich. Eq. 393; Bank v. Talcott, 22 Barb.
550.

* Bank y. Fink, 7 Paige, 87; American Exchange Bank v. Webb, 15
How. Pr. 193; 8. c. 86 Barb. 291; Angell vy. Rosenburg, 12 Mich. 241;
Kavanaugh v. Beckwith, 44 Barb. 192; Hastings v. Baldwin, 17 Mass.
552; Guerin v. Hunt, 6 Minn. 375; s. c. 8 Minn. 477.

° Mackintosh v. Corner, 33 Md. 598 ; Hempstead v. Johnston, 18 Ark.
123 ; Hardcastle v. Fisher, 24 Mo. 70; Harris v. De Graffenreid, 11 Ired.
89 ; Pinneo y. Hart, 30 Mo. 561; Nightingale v. Harris, 6 R. I. 321; Starr
v. Dugan, 22 Md. 58; Woodward v. Marshall, 22 Pick. 468; Contra
Fiedler v. Day, 2 Sandf. 594 ; Planck v. Schermerhorn, 3 Barb. Ch. 644;
Webb v. Daggett, 2 Barb. 9; Irwin v. Keen, 3 Whart. 347; American Ex-
change Bank v. Webb, 15 How. Pr. 193; 8. oc. 36 Barb. 291; Mead v.
Phillips, 1 Sandf. Ch. 83; Jacobs v. Remsen, 36 N. Y. 668; Livermore y.
Northrop, 44 N. Y. 107; Terry v. Butler, 48 Barb. 895; Lehmer v. Herr,
1 Duvall, 360; Stone v. Marshall, 7 Jones (N. C.) 300.

° Mackintosh y. Corner, 33 Md. 598; Starr v. Dugan, 22 Md.58; Hard-
castle vy. Fisher, 24 Mo. 70.

25
386 ASSIGNMENTS FOR CREDITORS.

claim is extinguished by the fraud, and the share that
would otherwise have been appropriated to its payment
sinks into the residue for the benefit of those who
are entitled to the residue by the terms of the deed?
The mere statement that notes are made by a third
person does not justify the inference that the assignor
is not under obligation to pay them,’ nor is a court
authorized to judicially know that the person named in
the schedule is the assignor, although the names are
identical? Relationship does not authorize the con-
clusion that a debt is not a fair one in the absence of
evidence that it is fraudulent.* A direction to the
assignee to pay the debts of the assignor, though equivo-
cal, means debts owing by him’

Reat presrs.—A. provision may be made for the
payment of a note given for an obligation to which the
statute of frauds would have been a good defence, for
it is optional with the debtor whether he will set up
the defence or not,’ but no provision can be made for a
claim which has been discharged by a release from the
creditor. The moral obligation is not.sufficient in such
a case to support the d.mand as against other
creditors.’

Destor’s wirE.— Whenever the debtor has received
or borrowed the property of his wife, under circum-
stances which, in a court of equity, would be regarded
as creating a debt to her from him, and as entitling her

 

? Hardcastle v. Fisher, 24 Mo. 70.

? Bank v. Talcott, 22 Barb. 550.

* Blow v. Gage, 44 Ill. 208.

“ Layson v. Rowan, 7 Rob. (La.) 1.

®° Pine v. Rikert, 21 Barb. 469.

* Livermore y. Northrop, 44 N. Y. 107.
" Nightingale v. Harris, 6 R. I. 821.
ASSIGNMENTS FOR CREDITORS. 387

to be considered and treated as his creditor therefor, he
is allowed to pay such debt from his property, in the
same manner and upon the same principles upon which
he is allowed to pay any other debt to any other
creditor. The temptation which may exist in such
cases for the perpetration of frauds for the benefit of
the debtor’s family, makes it especially the duty of
courts and juries to scrutinize very closely and carefully
all transactions between the husband and wife to see
that claims in favor of the wife are not trumped up on
the eve of insolvency. The pre-existence of the debt
must be very clearly proved, and its honesty most fully
established, before it is allowed. But if honest, the
debt of the wife is none the less sacred because it is
due from her husband.’ A provision may also be made
for the payment of a mortgage for the purpose of re-
storing her inchoate right of dower in the mortgaged
‘premises discharged of the mortgage. As between the
creditors themselves the mortgaged property is the
primary fund for paying the mortgage debt, but as
against all creditors, except the mortgage creditor, the
equity of the wife is entitled to as much consideration
as their demands.”

Scretresi—The debtor has the undoubted right to
provide for the payment of any legal obligation. Hence,
an assignment may provide for sureties and indorsers,
as well as creditors.2 The holders and owners of the

 

* McCartney v. Welch, 44 Barb. 271; Planck v. Schermerhorn, 3 Barb.
Ch. 644.

? Dimon v. Delmonico, 35 Barb. 554.

® Ketiltas v. Wilson, 36 Barb. 298; 8. c. 28 How. Pr. 69; Copeland v.
Weld, 8 Me. 411; Duvall v. Raisin, 7 Mo. 449; Vaughan v. Evans, 1 Hill
Ch. 414; Bank v. Talcott, 22 Barb. 550; Halsey v. Whitney, 4 Mason,
206; Stevens v. Bell, 6 Mass. 889; Bank v. Cox, 6 Me. 395; Cunningham
y. Freeborn, 11 Wend. 241; s, c, 1 Edw. 256; s. c. 3 Paige, 537.
388 ASSIGNMENTS FOR CREDITORS.

claims designed to be protected, may compel an appro-
priation of the assigned property to their payment, and
consequently the provision has the same effect as if the
holders were named the cestwis que trust in the instru-
ment! The fact that the liability is contingent, does
not constitute a valid objection, for an assignment to
protect a contingent liability no more hinders or delays
creditors than one to pay a debt not yet due, even if
the assignee is not authorized to pay such debt be-
fore its maturity, for the assignee has a right to retain
sufficient funds in his hands to meet such liability, and
distribute the residue, and after the liability is disposed
of, distribute the balance.’ A direction to the assignee
to indemnify a surety, is a direction to pay the obliga-
tion as it becomes due, for in no other way can the
guarantor be fully protected and saved harmless from
the payment thereof?

SECURED DEBTs.—A provision for the payment of a
debt which has been previously secured by either a
judgment or a mortgage, or otherwise, does not affect
the validity of the assignment. If it is paid out of the
assigned estate, the property upon which it is a lien
will be left without hindrance to be resorted to by the
other creditors for the payment of their debts. If the
debt is imperfectly secured, it is not objectionable to
provide for it in the assignment. If it is amply secured,
a provision for its payment will not render the assign-
ment void.* But such a provision should be considered
as made subject to the equity, as between the creditors,
to have the mortgage debt paid out of the mortgaged

 

> Griffin y. Marquardt, 21 N. Y, 121; 8.0.17 N. Y. 28.

* Read v. Worthington, 9 Bosw. 617; Loeschigk y. Jacobson, 26 How.
Pr, 526; 8. c. 2. Robt. 645.

* Loeschigk v. Jacobson, 26 How. Pr. 526; 8, c. 2 Robt. 645.
“ Strong v. Skinner, 4 Barb. 546; Hastings v. Palmer, 1 Clarke, 52.
ASSIGNMENTS FOR CREDITORS. 389

property.’ Provision may also be made for the pay-
ment of an attaching creditor, provided his attachment
is sustained. The fact that it is conditional and contin-
gent is immaterial, for it could not be otherwise when
the validity of the attachment is questioned? It is
proper for the assignment to set forth the securities
-held by the secured creditor, but the omission of any
reference to them is not inconsistent with entire honesty
and good faith. A debt fully secured by a mortgage
may also be excluded.*

Various DEBTS.—Provision may be made for the
payment of an unsettled account, or of notes which
have been purchased at a discount,’ or of a bequest to
the debtor, as executor, to employ in business and pay
the profits to others, even though it is so employed by
him." A direction to the assignee to pay debts which
are, or may become due, means debts existing at the
date of the assignment, and to become due afterwards,
and includes debts already due. The phrase “may
become due,” when applied to actual debts then owing
to creditors, means debts which shall become payable
thereafter ; and when applied to persons under a con-
tingent liability for the debtor, means sums of money
which shall thereafter become payable to them by rea-
son of such contingent liability. A provision for a
debt of a firm due to another firm in which all or some

 

* Dimon y. Delmonico, 35 Barb. 554.

* Grant v. Chapman, 38 N. Y. 293.

* Stern v. Fisher, 32 Barb. 198.

‘ Cross v. Bryant, 2 Scam. 36.

® Reinhard v. Bank of Kentucky, 6 B. Mon. 252.

° Powers v. Graydon, 10 Bosw. 680; 8. c. 25 How. Pr. 512; Low v.
Graydon, 50 Barb. 414. :

” Tilford’s Case, 8 Watts, 531.

® Read v. Worthington, 9 Bosw. 617; Brainerd v. Dunning, 30 N. Y.
211; Benedict vy. Huntington, 82 N. Y. 219; Butt v. Peck, 1 Daly, 83;
Van Hook y. Walton, 28 Tex. 59,
390 ASSIGNMENTS FOR CREDITORS.

of the partners are interested, is valid, because partner.
ships are, in a modified sense, corporate bodies, and are
not to be confounded with the individuals composing
them. They are societies, and their assets are to be ad-
ministered as the assets of an association. A provision
cannot be made for the debts which the separate part-
ners may have against the firm before the firm creditors
are paid.? A note given to a former partner, upon his
withdrawal from the firm, may be provided for.’

By partners.—An appropriation of firm property
to pay the individual debt of one of the partners, is, in
effect a gift from the firm to the partner, and the attempt
to assign partnership property to pay the private debts
of one of the partners, before the firm debts are paid,
when the firm is insolvent, affords a conclusive pre-
sumption of an actual fraudulent design on the part of
the debtors.* It is a fraud upon the joint creditors, for
one partner to authorize his share of the property of
the firm to be applied to the payment of a debt for
which neither he nor his property is liable at law or in
equity. This right of the firm creditors to priority of
payment out of the firm assets, can not be impaired by

 

* Fanshawe v. Lane, 16 Abb. Pr. 71; vide Kayser v. Heavenrich, 5
Kansas, 324.

* Goddard vy. Hapgood, 25 Vt. 351.

* Mattison v. Demarest, 4 Robt. 161; Blow vy. Gage, 44 Ill. 208; Smith
v. Howard, 20 How. Pr. 121. \

* Wilson v. Robertson, 21 N. Y. 587; 8. c. 19 How. Pr. 350; Cox v.
Platt, 32 Barb 126; 8, c. 19 How. Pr. 121; Lester v. Abbott, 28 How. Pr.
488; 8. c. 8 Robt. 691; Knauth y. Bassett, 34 Barb. 81; Henderson v.
Haddon, 12 Rich, Eq. 393; Keith y. Fink, 47 Ill. 272; Ruhl v. Phillips,
2 Daly, 45; Heye v. Bolles, 83 How. Pr. 266; s.c. 2 Daly, 281; French
v. Lovejoy, 12 N. H. 458; Kirby v. Schoonmaker, 8 Barb. Ch. 46. In
some cases it is held that the appropriation is yoid but the assignment
valid. Nicholson v. Leavitt, 4 Sandf, 252; 8.0.6 N. Y. 510;s.c. 10 N.Y.
591; McCollough v. Somerville, 8 Leigh, 415; Read yv. Baylies, 18 Pick.
497; Kemp y. Carnley, 8 Duer, 1; Nye v. Van Husan, 6 Mich. 829; Lassel
v. Tucker, 5 Sneed, 1; Gordon y. Cannon, 18 Gratt, 387.
ASSIGNMENTS FOR CREDITORS. 391

any consideration having reference to the amount of
capital contributed by each of the individual partners.’

‘When the separate property assigned by each part-
ner exceeds the amount of his separate debts, a direc.
tion that separate debts shall be paid out of the part-
nership property, will not vitiate the assignment.’
Evidence may also be given to show that there are
no individual debts, but the burden of proof rests on
the parties claiming under the instrument.? Debts con-
tracted in the name of one of the partners, may be
shown to be in reality partnership debts. Partnership
property may be applied to the payment of debts
which are not partnership debts, but for which all the
partners are bound.’ A direction that the property
shall be distributed among the creditors according to
their respective equities, is good, for it contemplates a
distribution according to law.’ If a partnership is dis-
solved in good faith, and one partner takes the property
and assumes the debts of the firm, he may subsequently
assign the property for the payment of his individual
creditors," or of the creditors of any new firm of which
he may become a creditor. An appropriation of the
firm property to the payment of individual debts, is

 

* Wilson v. Robertson, 21 N. Y. 587; 8. c. 19 How. Pr. 350.

* Van Nest v. Yoe, 1 Sandf. Ch, 4; Knauth v. Bassett, 34 Barb. 31;
Hollister v. Loud, 2 Mich. 309.

® Hurlbert vy. Dean, 2 Keyes, 97; Contra, Lester v. Abbott, 28 How.
Pr. 488 ; 8. c. 3 Robt. 691.

‘ Cox vy. Platt, 32 Barb. 126; 8. c. 19 How. Pr. 121; Read vy. Baylies,
18 Pick. 437; Marks vy. Hill, 15 Gratt. 400 ; Barcroft v. Snodgrass, 1 Cold.
430.

* Smith v. Howard, 20 How. Pr. 121.

* Heckman vy. Messinger, 49 Penn. 465; Maennel v. Murdock, 13 Md.
264.

7 Robb vy. Stevens, 1 Clarke, 192; Yearsley’s Estate, 1 A. L. Reg. 636;
Marsh vy. Bennett, 5 McLean, 117; Price v. De Ford, 18 Md. 489; vide
Heye v. Bolles, 2 Daly, 281; 8. c. 33 How. Pr. 266.

® Smith vy. Howard, 20 How. Pr. 121.
392 ASSIGNMENTS FOR CREDITORS.

not, it seems, a ground for setting aside the assignment
at the instance of an individual creditor, as he cannot
in any manner be affected by it.*

SEPARATE PROPERTY TO FIRM DEBTS.—The rule that
the individual property must be first applied to the
payment of the separate debts does not limit or restrict
the partners in administering their own funds, for the
reason that there is no recognized lien or priority of
claim in favor of the several classes of creditors upon
the different funds and classes of assets belonging to the
debtors. Each partner is liable for the firm debts, and
all the property, both partnership and individual, is
pledged to the payment of the partnership as well as
the individual debts and all that creditors can demand
is that the property shall be appropriated to the pay-
ment of debts, and it is no fraud to pay one class in-
stead of another. The debts provided for in an assign-
ment of the individual property may be those for which
he is liable jointly with others, or severally and alone.
The only question is whether he is liable, and if so, the
appropriation can not be fraudulent. The only right
of the private creditor in such case is to compel the
partnership creditors to resort first to the partnership
funds until they exhaust them.

DisposrrioN OF SURPLUS BY PARTNERS—When an
assignment devotes the individual and partnership
property to the payment of the partnership debts, and
provides for a distribution of the surplus among the

 

* Morrison y. Atwell, 9 Bosw. 503.

* O'Neil v. Salmon, 25 How. Pr. 246; Kirby v. Schoonmaker, 3 Barb,
Ch. 46; Van Rossum y. Walker, 11 Barb. 237; Eyre v. Beebe, 28 How.
Pr. 388; Fox v. Heath, 16 Abb. Pr. 168; s. c. 21 How. Pr. 384; Gadsden
v. Carson, 9 Rich, Eq. 252; Newman v. Bagley, 16 Pick. 570; French vy.
Lovejoy, 12 N. H. 458; vide Jackson v. Cornell, 1 Sandf, Ch. 348.
ASSIGNMENTS FOR CREDITORS. 393

separate creditors, it should direct a distribution to
be made according to the respective rights of the sepa-
rate creditors, for an appropriation without such dis-
crimination will render the deed fraudulent, because it
authorizes the property of an insolvent debtor to be
applied in part to the payment of the debts of another
person, for which neither he nor his property is im any
wise bound before his own just debts are satisfied.’
Evidence may, however, be given to show that there
will be no surplus after the payment of the partnership
debts? A direction to the assignee after the payment
of the partnership debts to pay all the private and in-
dividual debts of each partner is valid, for an illegal in-
tent, is not to be implied in the absence of an express
direction, and the assignee may pay the debts of each
partner out of his individual property.’

Equatrry.— Whenever a man becomes unable to pay
his debts, the law regards his property as of right be-
longing to his creditors. Morally he is then a trustee
for all his creditors, and each is entitled to a ratable
share of his property and estate. As his property in
equity and justice belongs to his creditors, an assign-
ment in favor of all his creditors equally is in conformity
with the general policy of the law.2 One of the favorite
maxims of the law is that equality is equity; hence if
there are no circumstances of fraud or mala fides at-
tached to the transaction, the law favors rather than
discourages such an act on the part of an unfortunate

 

* Smith v. Howard, 20 How. Pr. 121; O’Neil v. Salmon, 25 How. Pr.
246; Kitchen v. Reinsky, 42 Mo. 427.

? Turner v. Jaycox, 40 N. Y, 470; s. c. 40 Barb. 164; Contra, Smith v.
Howard, 20 How. Pr. 121.

3 Eyre v. Beebe, 28 How. Pr. 333.

* Gere vy. Murray, 6 Minn. 305.

® Albert v. Winn, 7 Gill. 446; s.c. 5 Md. 66; 8. c. 2 Md, Ch. 169; 8. c.
2 Md. Ch, 42,
394 ASSIGNMENTS FOR CREDITORS.

debtor.! By such a course he performs an honest act
and discharges a moral duty of which none can reason-
ably complain, and to which objection can seldom be
made, except by such as may seek to secure their own
claims at the expense of other creditors. In such case,
however, the debtor does not seek to evade or defeat
the rights of the creditors, but to protect their interests
according to the extent and character of their respective
claims, and those who assail the assignment seek to draw
to themselves more than their just proportion of the
debtor’s effects to the prejudice of other creditors.
There is, therefore, no ground to impeach the legality or
fairness of the assignment when it is made in good faith.?

Prererences.—By virtue of the absolute dominion
which a man has over his own property, he may, how-
ever, give preferences in an assignment, but preferential
assignments are not encouraged. The law rather toler-
ates than approves them. They are inconsistent with
an enlarged equity, and are, therefore, held to the
strictest conditions. Courts watch the exercise of the
right to prefer with jealousy, and are not required by
any reasons of expediency or justice to enlarge it or give
it dangerous facilities.®

? Malcolm y. Hall, 9 Gill. 177.

* State v. Bank, 6 G. & J. 205; Wilt v. Franklin, 1 Binn. 502; Meux v.
Howell, 4 East. 1; Ingliss v. Grant, 5 T. R. 580 ; Vredenbergh v. White, 4
Johns. Cas. 156 ; Pickstock vy. Lyster, 8 M. & 8. 8371; King v. Watson, 3
Pri. 6; Nicoll vy. Mumford, 4 Johns. Ch. 522; Vernon y. Morton, 8 Dana,
247; Robins vy. Embry, 1 8. & M. Ch. 207; Adams y. Blodgett, 2 Wood
& Min, 233; Fisher v. Dinwiddie, 12 B. Mon. 208; Evans v. Jones, 11
Jur. (N. 8.) 784; Halsy v. Whitney, 4 Mason, 206; Hall v. Denison, 17
Vt. 310.

*Riggs v. Murray, 2 Johns. Ch. 565; s. c. 15 Johns, 571; Cunning-
ham v. Freeborn, 11 Wend. 241; s.c, 1 Edw. 256; 8. c. 3 Paige, 587;
American Exchange Bank v. Inloes, 7 Md. 380; Nichols v. McEwen, 17
N. Y. 22; 8. co. 21 Barb. 65; Stone y. Marshall, 7 Jones (N. C.), 300;
Blow v. Gage, 44 Ill. 208.
ASSIGNMENTS FOR CREDITORS. 395

The right to prefer, however, has never been con-
sidered immoral or fraudulent. It was a privilege at
common law, and has not been abridged by the statute.
Apart from the provisions of a bankrupt law, a debtor
may, in virtue of that absolute dominion which he holds
over his estate make a bona fide assignment for the pay-
ment of debts with stipulations in favor of preferred
creditors. He may assign the whole of his property

 

* Estwick v. Caillaud, 5 T. R. 420; s.c. 2 Anst. 381; Cunningham v.
Freeborn, 11 Wend. 241; 8. c. 1 Edw. 256; s. c. 3 Paige, 537.

* Beatty v. Davis, 9 Gil. 211; McColgan v. Hopkins, 17 Md. 395; Tomp-
kins vy. Wheeler, 16 Pet. 106 ; Marbury v. Brooks, 7 Wheat. 556; s.c. 11
Wheat. 78; Wilkes v. Ferris, 5 Johns. 335 ; Wynne v. Glidewell, 17 Ind. 446;
Layson y. Rowan, 7 Rob. (La.) 1; Murray v. Riggs, 15 Johns. 571, 8. c. 2
Johns. Ch, 565; Hatch y. Smith, 5 Mass. 42; Embry v. Clapp, 38 Geo. 245;
Stevens vy. Bell, 6 Mass. 339; De Forrest v. Bacon, 2 Conn. 633; Jacobs
v. Remsen, 36 N. Y. 668; Putnam v. Hubbell, 42 N. Y. 106 ; Cameron vy,
Montgomery, 13 8. & R. 128 ; Robinson v. Rapelye, 2 Stew. 86; Wiley v.
Collins, 12 Me. 193; Deaver v. Savage, 3 Mo. 252; Stevenson v. Agry, 7
Ohio, 2d part, 247; Pearson v. Rockhill, 4 B. Mon. 296; Moffatt v.
M’Dowell, 1 McCord Ch. 484; M’Collough v. Sommerville, 8 Leigh, 415;
How vy. Camp, Walk. Ch. 427; King v. Trice, 3 Ired. Eq. 568; ex parte
Conway, 12 Ark. 302; U. 8. Bank v. Huth, 4 B. Mon. 423; Merrick v.
Henderson, Walk. 485; Cross v. Bryant, 2 Scam. 36; Smith v. Campbell,
Rice, 352; Petrekin v. Davis, Morris, 296; Holbrook v. Baker, 4 Fla. 87;
Hollister v. Loud, 2 Mich. 309; Kneeland v. Cowles, 4 Chand. 46; Cooper
v. McClun, 16 Ill. 485; U. 8. v. Bank of U. 8. 8 Rob. (La.) 262; Hampton
v. Morris, 2 Met. (Ky.) 336; Hempstead v. Starr, 3 Day, 340; Hower v.
Geesaman, 17 8. & R. 251; M’Menomy v. Ferrers, 3 Johns. 71.

They are prohibited in the following States :—

Maine—Rev. Stat. Ch. 70; Berry v. Cutts, 40 Me. 445.

New Hampshire—True yv. Congdon, 44 N. H. 48,

Vermont—Act of 1852, Passumpsic Bank y. Strong, 42 Vt. 295. Gen-
eral assignments were formerly prohibited. Mussey v. Noyes, 26 Vt. 462;
Noyes v. Hickok, 27 Vt. 36; Merrill v. Englesby, 28 Vt. 150; Bishop v.
Catlin, 28 Vt. 71; Farr v. Brackett, 80 Vt. 344.

Massachusetts—Wyles v. Beals, 1 Gray, 233; Edwards v. Mitchell, 1
Gray, 239 ; Bowles v. Graves, 4 Gray, 117; in that State no assignment is
valid, Stanfield v. Simmons, 12 Gray, 442.

Connecticut—Rev. Stat. Title 14 Ch. 4; Richmondville Manuf. Co. v.
Pratt, 9 Conn. 487; Godell v. Williams, 21 Conn. 419; Beers vy. Lyons, 21
Conn, 604.

New Jersey—Act Apr. 16, 1846; 1 R.S. 316, Dixon’s Dig. 27; Varnum
396 ASSIGNMENTS FOR CREDITORS.

for the benefit of a single creditor in exclusion of all
others, or he may distribute it in unequal proportions,

 

v. Camp. 1 Green, 326; Fairchild v. Hunt, 1 McCarter, 367; Knight v.
Packer, 1 Beasley, 214; the statute does not apply to an assignment by a
fraudulent grantee as a compromise with the creditors who have assailed
the conveyance, Emerick vy. Harlan, 1 Beasley, 229.

Pennsylvania—Purdon’s Digest, 52; Law v. Mills, 18 Penn. 185;
Wiener v. Davis, 18 Penn. 331; Miners’ National Bank’s Appeal, 57 Penn.
198; Driesbach v. Becker, 84 Penn. 152.

Georgia—Preferences were formerly prohibited, but are not now. Lamb
v. Radcliff, 28 Geo. 520; Norton v. Cobb, 20 Geo. 44 ; Banks v. Clapp, 12
Geo. 514; Eastman v. McAlpin, 1 Kelly, 157; Cameron vy. Scudder, 1
Kelly, 204; Watkins v. Jenks, 24 Geo. 481; Ezekiel vy. Dixon, 3 Kelly,
146 ; Dawson v. Figuiero, 16 Geo. 610.

Alabama Code, secs, 1555, 1556—Holt v. Bancroft, 30 Ala. 193; Price
v. Mazange, 31 Ala. 701.

Kentucky Act, March 10, 1856—Rev. Stat. (Stanton) 553; Hampton
v. Morris, 2 Met. (Ky.) 336.

Ohio—Rev. Stat. (8. & C.) 709 ; Dickson v. Rawson, 5 Ohio St. R. 218;
Floyd v. Smith, 9 Ohio St. R. 546; Harkraker vy. Leiby, 4 Ohio St. R. 602;
Hull v. Jeffrey, 8 Ohio, 390; Harshman y. Lowe, 9 Ohio, 92; Mitchell v.
Gazzam, 12 Ohio, 815; Doremus y. O’Hara, 1 Ohio St. R, 45.

Missouri—Rev. Stat. Ch. 8; partial assignments may give preferences,
Shapleigh v. Baird, 26 Mo. 322 ; Woods v. Timmerman, 27 Mo. 107;
Many v. Logan, 31 Mo. 91,

Wisconsin—Rey. Stat. Ch. 63; Page v. Smith, 24 Wis. 368.

Iowa—Wiiliams vy. Gartrell, 4 Greene, 287; Cole v. Dealman, 13 Iowa,
551 ; Revision 1860, Ch. 77; Burrows v. Lehndorf, 8 Iowa, 96; Bebb v.
Preston, 1 Iowa, 460; partial assignments may preter, Lampson vy. Amold,
19 Iowa, 479.

California—All assignments are prohibited by the insolvent law—Che-
ver v. Hays, 3 Cal. 471,—although a third person intervenes,—Groschen
vy. Page, 6 Cal. 138,—or they are judicial,—Adams v. Woods, 8 Cal. 152.
But the insolvency of the debtor must be established. Morgentham v.
Harris, 12 Cal. 245. The prohibition does not extend to an assignment of
a bill of lading for the benefit of the vendor. Le Cacheux vy. Cutter, 6 Cal.
514.

New York—Assignments by moneyed corporations when insolvent or in
contemplation of insolvency are prohibited, 1 Rev. Stat. 591; Hurlbut v.
Carter, 21 Barb. 221; Bowery Bank Case, 6 Abb. Pr. 415 ; the same pro-
hibitions also extend to limited partnerships 1 Rev. Stat. 766, §§ 20, 21;
Fanshawe y. Lane, 16 Abb. Pr. 71; Greene v. Breck, 28 Barb. 73 ; 8. ©.
10 Abb. Pr. 42, The general effect of the State statutes is not to invali-
date the assignment but to make it operate for the benefit of all. Law v.
ASSIGNMENTS FOR CREDITORS. 397

either among a part or the whole of them. A surviv-
ing partner,’ or a corporation,® may give a preference.

INoIDENTAL EFFECT TO DEFEAT oTHERS.—The mere
fact that the preference defeats all other creditors does
not affect the validity of the assignment.* <A deliber-
ate intention on the part of the debtor that certain
creditors shall not be paid out of the property as-
signed until a preferred class shall be paid is not of
itself a fraudulent intent.’ There may even be an in-
tent to defeat an execution.® There must be other
ingredients in the case to make the transaction fraud-
ulent. There must be a fraudulent intent. LHvery
conveyance by which an insolvent debtor conveys his
whole property to a few preferred creditors, not being
more than sufficient to pay their debts, necessarily tends
to delay and defeat all other creditors; but however
strong the intention is thereby to defeat or delay the
latter, still the conveyance is not void on that account.

The law allows a creditor to give a preference to

 

Mills, 18 Penn. 185 ; Shapleigh v. Baird, 26 Mo. 322; Floyd v. Smith, 9
Ohio St. R. 546 ; Dickson v. Rawson, 5 Ohio St. R. 218 ; Shouse v. Utter-
back, 2 Met. Ky.) 55; Given v. Gordon, 3 Met. (Ky.) 538; Price v. Ma-
zange, 31 Ala. 701. They do not generally apply to sale to a creditor to
pay his own debt and account for the balance. Chaffees vy. Risk, 24 Penn.
432; Pomeroy v. Manin, 2 Paine, 476; Carey v. Giles, 10 Geo. 9 ; Banks
v. Clapp, 12 Geo. 514; vide Page v. Smith, 24 Wis. 368 ; Bebb v. Preston,
1 Iowa, 460.

* New Albany R. R. Co. v. Huff, 19 Ind. 444.

? Hutchinson v. Smith, 7 Paige, 26 ; Contra, Barcroft v. Snodgrass, 1
Cold. 430.

5 Catlin v. Eagle Bank, 6 Conn. 238; Dana v. Bank of U. 8.5 W. &8.
223; Burr v. M’Donald, 3 Gratt. 215; Arthur v. Commercial Bank, 9 8. &
M. 394; Town v. Bank, 2 Doug. (Mich.) 530 ; Hightower v. Mustian, 8
Geo. 506 ; U. S. v. Bank of U. 8. 8 Rob. (La.) 262; Dundas vy. Bowler, 3
McLean, 397.

4 Marbury v. Brooks, 7 Wheat. 556; 8. o. 11 Wheat. 78 ; Byrd v.
Bradley, 2 B. Mon. 239. e

® Wilson v. Hifler, 7 Cold. 31.

® Hollister v. Loud, 2 Mich. 309,
398 ASSIGNMENTS FOR CREDITORS.

creditors by a bona fide conveyance. It allows any
creditor also by an execution to acquire a preference in
invitum. But which shall prevail depends entirely
upon the priority of the acts by which the preference is
legally acquired. Neither is, of itself, a fraud upon the
other.' The suing creditors strive in a legal way to
make their debts to the exclusion of others, and have
no right to complain if they are surpassed and out-
stripped in the race of diligence by another legal mode
of obtaining satisfaction. It is only a fair contest be-
tween creditors by legal means to secure themselves,
Since in law they are equally meritorious, the strongest
legal right must prevail.? The debtor may also select
the time of making an assignment, so as to make the
preference effectual.’

SEcRET motives.—A previous threat is immaterial,
for a thing which would be lawful without a threat can
not become unlawful because it is done in pursuance
of a threat. The declaration of an intention by a
debtor to do what the law sanctions as right and
proper, will not render an assignment fraudulent.
Neither law nor equity inquire into the reasons or mo-
tives for the preference. The motive which prompted
it, provided an honest debt is secured, is not the sub-
ject of legal inquiry. If in selecting the objects of his

 

‘ Halsey v. Whitney, 4 Mason, 206; Bank vy. Cox, 6 Me. 395; Tomp-
kins v. Wheeler, 16 Pet. 106; Jaques v. Greenwood, 12 Abb. Pr. 2382;
Wynne v. Glidewell, 17 Ind. 446 ; New Albany R. R. Co. y. Huff, 19 Ind.
444; Chandler v. Caldwell, 17 Ind. 256; Bailey v. Mills, 27 Tex. 434.

? Hefner v. Metcalf, 1 Head. 577.

* Tompkins v. Wheeler, 16 Pet. 106.

* Spaulding vy. Strang, 37 N. Y. 185; 8. c. 88 N. Y. 9; 8. c. 82 Barb.
235 ; 8. c. 36 Barb. 810; Wilson v. Britton, 6 Abb. Pr. 84, 97; 8. c. 20 Barb.
562; Place v. Miller, 6 Abb. Pr. (N. 8.) 178; vide Gasherie v. Apple, 14
Abb. Pr. 64; Renard vy. Graydon, 39 Barb, 548; 8. c. 36 Barb. 810; 8. c. 32
Barb, 235; 8. c. 25 How. Pr. 78; Dickerson y. Benham, 20 How. Pr. 343.
ASSIGNMENTS FOR CREDITORS. 399

preference he is guided by mere caprice or favoritism
rather than by the superior claims of some of his
creditors over others, it is not a subject of legal com-
plaint.'! He may even be influenced by an expectation
to receive employment from the preferred creditors. If
the debtor’s purpose is to prevent a sacrifice of his
property and a race of diligence among his creditors by
appropriating it to his preferred creditors, this will not
be fraudulent, because it is just what he has a right to
do.’

CoNSEQUENCE OF RIGHT TO PREFER.—The right to
prefer necessarily involves the right to postpone* A
claim may be postponed unless certain collaterals are
accounted for.’ The assignment may provide that no
interest shall be paid upon any debt until the principal
of all the debts is paid. No principle of public policy
or morality is infringed by an agreement among the
common creditors of an insolvent debtor, who is about
to make an assignment, that he shall prefer one and
postpone another, and a promise by one creditor to pay
another a certain sum upon condition that the latter,
who is a surety for the debtor, will consent to the giv-

ing of a preference to him is valid when the surety is
solvent.’

ReEsERVATIONS TO DEBTOR.—The fundamental prin-
ciple of law and justice is that all the property of an
insolvent debtor shall be applied to the discharge of his

 

‘ Spaulding v. Strang, 37 N. Y. 135; 8. co. 88 N. Y. 9; 8. c. 32 Barb.
235 ; s. c. 86 Barb. 310; Hollister v. Loud, 2 Mich. 309; ex parte Conway,
12 Ark. 302.

? Crawford y. Austin, 34 Md. 49.

® Rindskoff v. Guggenheim, 3 Cold. 284.
* Ex parte Conway, 12 Ark. 302,

° Bellows v. Partridge, 19 Barb. 176.

* Ingraham vy. Grigg, 13 8. & M. 22.

" Halton y. Jordan, 29 Ala. 266.
400 ASSIGNMENTS FOR CREDITORS.

debts. If the debtor may want sustenance, so also may
the creditor, and if one of them must suffer the misfor-
tune must, according to law and morals, fall on the
debtor. An assignment must, therefore, be made in
good faith for the purpose of paying debts and without
any intent to lock up the property from creditors for
the use of the debtor. When a person has the full title
and desires to retain the control and use of his property
and yet transfers it to another to be held for his use, he
can, in the general course of human actions, have but
one motive for the measure, and that motive must be to
defeat or elude the claims of others." This is in the reason
why all stipulations for any benefit in favor of the
debtor render an assignment null and void. The debtor
can not retain the use and enjoyment of the property
and turn creditors over for their debts to the rents and
profits,’ nor transfer his property and substitute his own
bond in its place2 An express appropriation of a por-
tion of the property to his use,* or for his support,’
or any provision for his family,’ renders the assignment
void. The mere fact that the debts of the creditors
who assent to it amount to more than the value of the
property is immaterial.”

The debtor can not postpone creditors to a future

 

* Mackie v. Cairns, 5 Cow. 547; 8. o. 1 Hopk. 373.

* Green v. Trieber, 3Md. 11; Galt v. Dibrell, 10 Yerg. 146.

* Green v. Trieber, 3 Md. 11.

‘@reen y. Trieber, 3 Md. 11; Mackie v. Cairns, 5 Cow. 547; 8. ¢.
1 Hopk. 873; Johnston v. Harvey, 2 Penna. 82; Richards v. Hazard, 1
Stew. & Port. 189; Coate v. Williams, 9 Eng. L. & Eq. 481; sc. 7% Exch.
205; Contra, Murray v. Riggs, 15 Johns. 571; s. c. 2 Johns. Ch. 565; Austin
vy. Bell, 20 Johns. 442; Estwick v. Caillaud, 6 T. R. 420; s. c. 2 Anst. 381.

° Green y. Trieber, 3 Md. 11; Johnston vy. Harvey, 2 Penna. 82.

° M’Allister v. Marshall, 6 Binn. 338; M’Clurg v. Lecky, 3 Penna. 83 ;
Bradway’s Estate, 1 Ashm. 212; Green y. Branch Bank, 33 Ala. 6433
Contra, Young v. Booe, 11 Ired. 247.

7 MW Allister v. Marshall, 6 Binn. 388,
ASSIGNMENTS FOR CREDITORS. 401

day and have the funds in the meantime applied to the
prosecution of his business.' An assignment which is
to continue until the profits pay the debts when the
property itself is to revert to the debtor is fraudulent,
for it tends to lock up the estate indefinitely, thereby
hindering and delaying creditors unreasonably, and se-
curing an ultimate and permanent advantage to the
debtor? A debtor has no right, for the-same reason, to
subject his creditors to the alternative of agreeing that
he shall have further time and pay by instalments pre-
scribed by himself or lose all benefit of his property
and chance of being paid in case it should require the
whole to satisfy those who may assent to the deed.
The effect is to gain time by coercing the creditors
who may come in, and to hinder and delay those
who may refuse the terms of the deed, as well as
those not provided for. Indulgence cannot be de-
manded at the option of the debtor and on his own
terms.”

No provision can be made for the payment of the
expenses incurred by the assignee in obtaining a release
for the debtor,‘ or for the payment of the expenses of
the debtor in obtaining the benefit of the bankrupt law.>
A preference can not be given for the purpose of secur-
ing tothe debtor the future use of a dwelling house,
without paying rent or being liable therefor.’ A pro-

 

" Bodley v. Goodrich, 7 How. 276; Cleveland v. Railroad Co, 7 A. L.
Reg. 537.

? Arthur v. Commercial Bank, 9 8. & M. 394; Fellows v. Commercial
Bank, 6 Rob. (La.) 246; Contra, Robins v. Embry, 1 8. & M. Ch. 207;
Balto. & Ohio R. R. Co. vy. Glenn, 28 Md. 287.

3 Green v. Trieber, 3 Md. 11.

4 Austin v. Bell, 20 Johns, 442.

5 Sewall v. Russell, 2 Paige, 175.

* Elias v. Farley, 40 N. ¥. 398 ; 8. c. 5 Abb. Pr. (N. 5.) 39.

26
402 ASSIGNMENTS FOR CREDITORS.

vision for future advances and future liabilities,’ or a
loan not received at the time of executing the assign-
ment,” renders the transfer fraudulent. A stipulation
that the debtor shall be permitted to transact business
for a certain period, without any proceedings being
taken against him, either at law or in equity,’ or con-
templating the resumption of business,‘ avoids the as-
signment. Any reservation in favor of any member of
a firm is a trust in favor of the assignors as much as
one in favor of all the assignors.’ A stipulation may be
inserted requiring a note given in an exchange of ac-
commodation notes to be surrendered as a condition of
a preference.®

Rieur To possEssion.—An express reservation of the
right to remain in possession until the property is sold,’
or for such a time as the assignee in his discretion may
deem proper,’ will not vitiate the transfer. A stipula-
tion in the deed for possession by the debtor for a defi-
nite time is an express trust for him, and raises a pre-
‘sumption of fraud, unless the period is so short as to
leave it indifferent whether it is for the convenience
of the assignee and the benefit of the estate, or for

 

* Barnum v. Hempstead, 7 Paige, 568; Lansing v. Wordworth, 1 Sandf.
Ch. 43; Currie v. Hart, 2 Sandf. Ch. 353; Peacock v. Tompkins, Meigs.
‘B17.

? Sheldon v. Dodge, 4 Denio, 217.

* Berry v. Riley, 2 Barb. 307; Sheppards yv. Turpin, 3 Gratt. 373.

* Fairchild v. Hunt, 1 McCarter, 367.

* Judson v. Gardner, 4 Leg. Obs. (N. Y.) 424.

* Oliver Lee & Co.’s Bank y. Talcott, 19 N. Y. 146; Bank y. Talcott,

22 Barb. 550.
" Baxter v. Wheeler, 9 Pick. 21; Dewey v. Littlejohn, 2 Ired. Eq. 495;

Moore y. Collins, 3 Dev. 126; Lanier y. Driver, 24 Ala. 149; Contra,
Knight v. Packer, 1 Beasley, 214.

* Planters’ Bank vy. Clarke, 7 Ala. 765; Abercrombie y. Bradford, 16
Ala. 560; Shackelford vy. Planters’ Bank, 22 Ala, 238.
ASSIGNMENTS FOR CREDITORS. 403

the benefit of the debtor.’ No express stipulation can
be inserted requiring the employment of the debtor.

When an assignment is void on account of a reser-
vation in favor of the debtor, creditors may seize the
property reserved,® or the property assigned.*

ConcEeaLMENT.—Concealment of a portion of the
assets conveyed by the terms of the assignment does
not necessarily invalidate the assignment,” but is merely
a circumstance tending to prove fraud.° Thesame prin-
ciple applies when the debtor absconds with a portion
of the estate.” These acts are a fraud on the assign-
ment rather than a fraud in it.2 But if the debtor,
through the agency of the assignee, retains more than
he can hold under the exemption laws of the State, the
assignment is fraudulent.’

 

1 Hardy v. Skinner, 9 Ired. 191; Hardy v. Simpson, 13 Ired. 132. Six
months—Kevan v. Branch 1 Gratt. 274; Janney v. Barnes, 11 Leigh, 100 ;
Coate y. Williams, 9 Eng. L. & Eq. 481; 8.c. 7 Exch. 205,—and eight
months—Hempstead v. Johnston, 18 Ark. 123—have been deemed to be
not unreasonable. In Virginia, two years, with the right to take the
profits—Dance vy. Seaman, 11 Gratt. 778,—and have all the debts over
the receipts contracted during that time paid out of the trust fund—Balto.
& Ohio R. R. Co. v. Glenn, 28 Md. 287—is good.

? McClurg v. Lecky, 3 Penna. 83 ; Contra, Young v. Booe, 11 Ired.
347; Janney v. Barnes, 11 Leigh, 100; Marks v. Hill, 15 Gratt. 400;
Rindskoff v. Guggenheim, 3 Cold. 284.

5 M’ Allister v. Marshall, 6 Binn. 8388; M’Clurg v. Lecky, 3 Penna. 83.

‘ WClurg v. Lecky, 3 Penna. 83.

° Reinhard v. Bank of Kentucky, 6 B. Mon. 252.

° Guerin v. Hunt, 6 Minn. 375; 8, c. 8 Minn. 477; Smith v. Mitchell,
12 Mich. 180; Blackman v. Wheaton, 13 Minn. 326; Lehmer v. Herr,
1 Duvall, 360; Ruble v. McDonald, 18 Iowa, 493.

” Wilson y. Forsyth, 24 Barb. 105; American Exchange Bank v. Webb,
15 How. Pr. 193; s. c. 36 Barb, 291; Gates v. Labeaume, 19 Mo. 17;
Miller v. Halsey, 4 Abb. Pr. (N. 8.) 28; Thomas v. Tallmadge, 16 Ohio
St. R. 434; Spencer v. Jackson, 2 R. I. 35; vide Waverley Bank v. Halsey,
57 Barb. 249 ; Foley v. Bitter, 84 Md. 646; Stewart v. Spencer, 1 Curt.
157 ; Nightingale v. Harris, 6 R. I. 321.

® Thomas y. Tallmadge, 16 Ohio St. R. 484.

° Carlton v. Baldwin, 22 Tex. 724; Stewart v. Spencer, 1 Curt. 157;
404 ASSIGNMENTS FOR CREDITORS.

EXCEPTIONS FROM OPERATION OF DEED.—An ex-
ception whereby the property is retained by the debtor
and not conveyed to the assignee is not a reservation of
a benefit to the debtor and does not vitiate the assign-
ment. A declaration that certain notes were made for
the accommodation of the debtor and directing their re-
turn to the makers simply excepts them from the oper-
ation of the deed , and does not justify an inference of
fraud2 Whatever is exempt from execution may be
reserved to the debtor The rule that there must be no
provision for the benefit of the debtor does not apply to
a sale. The debtor may take notes for a part of the pur-
chase-money and provide that the balance shall be paid to
his creditors. Such a stipulation simply relates to the
manner in which the property shall be paid for by the
purchaser.* A second assignment can not be made for
the purpose of indemnifying the assignee for acts to be
done by him in compromising with creditors and ex-
tinguishing a prior assignment.’

ResrmpuARY INTERESTS.—There is a distinction be-
tween an express trust for the debtor and a benefit
which is merely incidental to a trust created for another

 

Nightingale y. Harris, 6 R. I. 321; Farrin v. Crawford, 2 B. R. 181; in
re Chamberlain et al. 3B. R. 173.

1 Bank y. Cox, 6 Me. 245 ; Carpenter v. Underwood, 19 N. Y. 520;
Pearce vy. Jackson, 2 R. I. 35; Knight v. Waterman, 36 Penn. 258; Bates
y. Ableman, 13 Wis. 644; Baldwin v. Peet, 22 Tex. 708 ; Ingraham v.
Grigg, 13 8. & M. 22; vide Foster y. Libby, 24 Me. 448; Moss vy. Hum-
phrey, 4 Greene (Iowa), 443.

2 Price vy. De Ford, 18 Md. 489.

5 Dow v. Platner, 16 N. Y. 562; Mulford y. Shirk, 26 Penn. 478; Hol-
lister v. Loud, 2 Mich. 809; Baldwin v. Peet, 22 Tex. 708; Garnor v.
Frederick, 18 Ind. 507; Smith v. Mitchell, 12 Mich. 180 ; Heckman v.
Messinger, 49 Penn. 465; Brooks y. Nichols, 17 Mich. 88; Farquharson v.
McDonald, 2 Heisk, 404; Sugg v. Tilman, 2 Swan. 208.

4 Beach v. Bestor, 47 Ill. 521.

° Fairchild v. Hunt, 1 McCarter, 367.
ASSIGNMENTS FOR CREDITORS. 405

object... A residuary interest necessarily arises in every
case where property is assigned in trust to pay debts,
for the surplus by operation of law results in trust for
the debtor, but unless the assignment is merely color-
able and made for the sake of the resulting trust, it is
not void.? An express reservation of the surplus to the
debtor is a mere expression of that which the law would
provide without such a declaration, and does not there-
fore vitiate the transfer.®

 

+ Curtis v. Leavitt, 15 N. Y.9; s.c. 17 Barb. 309; Van Buskirk y.
Warren, 39 N. Y. 119; s. c. 84 Barb. 457; 8, c. 13 Abb. Pr. 145.

? Wilkes v. Ferris, 5 Johns, 335.

‘ Hempstead y. Johnston, 18 Ark. 128; Ely v. Hair, 16 B. Mon. 230;
Brown v. Lyon, 17 Ala. 659; Dance vy. Seaman, 11 Gratt. 778; Graham v.
Lockhart, 8 Ala. 9 ; Hindman v. Dill, 11 Ala. 689; Danav. Bank of U.S.
5 W. & 8. 228; Johnson vy. McAllister, 30 Mo. 327; Miller v. Stetson, 32
Ala. 166; Moore v. Collins, 3 Dey. 126; Andrews v. Ludlow, 5 Pick. 28;
Vaughan v. Evans, 1 Hill Ch. 414; Floyd v. Smith, 9 Ohio St. R. 546;
Dickson y. Rawson, 5 Ohio St, R. 218; New Albany R. R. Co. v. Huff,
19 Ind, 444; McFarland v. Birdsall, 14 Ind. 126; Richards v. Levin, 16
Mo. 596; Conkling v. Carson, 11 Ill. 503; Beck v. Burdett, 1 Paige, 305 ;
Contra, Barney v. Griffin, 2 N. Y. 365; Goodrich v. Downs, 6 Hill, 438 ;
Lansing v. Woodworth, 1 Sandf. Ch. 48; Strong v. Skinner, 4 Barb. 546;
Collomb v. Caldwell, 16 N. Y. 484; Truitt v. Caldwell, 8 Minn. 364 ; Ban-
ning v. Sibley, 3 Minn. 389; Green v. Trieber, 3 Md. 11; Therasson vy.
Hickok, 37 Vt. 454; Maberry v. Shisler, 1 Harring. 349 ; Berry v. Riley,
2 Barb. 307 ; Pierson v. Manning, 2 Mich. 445; Dana v. Lull, 17 Vt. 390.
The deed can not be made valid by proof that there will be no surplus,—
Barney v. Griffin, 2 N. Y. 365; Goodrich v. Downs, 6 Hill, 488; Dana v.
Lull, 17 Vt. 390,—or by proof that the omission was the effect of haste or
inadvertence; Hooper vy. Tuckerman, 3 Sandf. 311. The doctrine that the
reservation of the surplus renders the deed void is placed in those States
where it is adopted upon the ground that the effect is to lock up the prop-
erty until the creditors, provided for in the assignment, are paid,—Dana
y. Lull, 27 Vt. 390,—because the other creditors can not sell the interest of
the debtor subject to the assignment, as they could if it were a mortgage.
Leitch vy. Hollister, 4 N. Y. 211; Dunham y. Whitehead, 21 N. Y. 131;
McClelland v. Remsen, 36 Barb. 622; s. c.14 Abb. Pr. 331; 8. c. 28 How.
Pr. 175 ; Estwick v. Caillaud, 2 Anst. 881; s.c.5 T. R. 420. The oppo-
site doctrine is held in other cases; Murray v. Riggs, 15 Johns. 571; 8. c.
2 Johns. Ch. 565; Austin y. Bell, 20 Johns. 442; Skipwith v. Cunning-
406 ASSIGNMENTS FOR OREDITORS.

When no surplus is expected, an omission to pro-
vide for the distribution of any balance that may re-
main does not affect the transfer." There may be a
provision that the surplus shall be paid to the debtor
or creditors in the discretion of the assignee.”

WHEN RESERVATION OF SURPLUS FRAUDULENT.—
The reservation of the surplus may, however, be fraud-
ulent. This will depend upon the proportion the value
of the estate bears to the debts secured by the assign-
ment. If the assignment covers a great deal of property
as a security for a small amount of debts, so that the
resulting interest of the debtor is really the valuable
interest, the purpose professed is so obviously a mere
pretence as not to conceal the true purpose from detec-
tion. In such a case the debtor is obviously providing
for himself and not for his creditors.2 Inadequacy of
consideration is, however, merely indicative of fraud and
not conclusive evidence.*

SURPLUS IN ASSIGNMENT BY PARTNERS.—The part-
nership effects are the primary and natural fund for the
payment of the debts of the firm, and the individual
property of each member of the firm is the natural fund
for the discharge of his private debts. It is therefore
perfectly proper for the partners, in making an assign-

 

ham, 8 Leigh, 271; Janney vy. Barnes, 11 Leigh, 100; Marks vy. Hill, 15
Gratt. 400; Ely v. Hair, 16 B. Mon. 230; Graham v. Lockhart, 8
Ala. 9.

*Doremus v. Lewis, 8 Barb. 124; Bishop y. Halsey, 3 Abb. Pr. 400;
Spies v. Joel, 1 Duer, 669.

? Kneeland v. Cowles, 4 Chand. 46.

* Moore y. Collins, 8 Dev. 126; Beck v. Burdett, 1 Paige, 305; Hast-
ings v. Baldwin, 17 Mass. 552.

* George v. Kimball, 24 Pick. 254,
ASSIGNMENTS FOR CREDITORS. 407

ment of the property and effects of the firm for the pur-
pose of discharging their joint debts, to direct the resi-
due of the assigned property, if there should happen to
be any, to be returned to them, so that it may be di-
vided between them according to their respective equit-
able interests therein, leaving each to pay his private
debts out of his own individual property. Such an
assignment is not fraudulent, because the rights of the
separate creditors are subject to an equitable adjust-
ment of accounts between the partners themselves.’
The result will be the same if the assignment contains
no direction to pay the residue of the proceeds to the
debtors after paying the firm debts, for the law itself
creates a resulting trust in their favor as to such sur-
plus? Real estate held by the partners jointly may be
shown to be partnership property.*

When one partner, with the consent of his co-
partner, assigns his individual estate and the partner-
ship assets to pay his private debts, there may be a
reservation in favor of such co-partner of a sum equal
to his interest.” An assignment of the individual estate
made after the execution of an assignment of the firm
property is not void, because there is no provision for

 

? Bogert-v. Haight, 9 Paige, 297; Butt v. Peck, 1 Daly, 83; Hubler
v. Waterman, 33 Penn. 414; wide Goddard vy. Hapgood, 25 Vt.
351.

2 Collomb v. Caldwell, 16 N. Y. 484; Collumb vy. Read, 24 N. Y.
505.

5 Bogert v. Haight, 9 Paige, 297.

* Collumb v. Read, 24 N. Y. 505. When the assignment includes both
individual and partnership property, the surplus can not be reserved to
the debtors without providing for the individual creditors,—Collomb v.
Caldwell, 16 N. Y. 484,—but it has been held that proof must be given
that there are separate debts. Bogert v. Haight, 9 Paige, 297.

® Mandel v. Peay, 20 Ark. 325.

a
408 ASSIGNMENTS FOR CREDITORS.

the payment of debts which are fully provided for in
the firm assignment.’

SURPLUS AFTER PAYMENT oF ALL.—There is no objec-
tion to a reservation to the debtor of what may remain
after the payment of all his debts. He may properly
enough take to himself what in such case the law would
grant as a resulting trust.? When the object of the
trust is accomplished, what remains will belong to the
debtor by operation of law.’

Time For cLosine TRusT.—Delay is necessarily in-
cident to every assignment, but how far it may be
necessary to accomplish the object of a distribution of
the property must always depend upon the character
and condition of the property, and of the debts to be
paid. Any terms which vary from a plain, direct, and
immediate application of the effects of the debtor to the
payment of his creditors are badges of fraud.‘ It is
not necessary that the assignment shall fix a time with-
in which the execution of the trust shall be completed,
for the trust is under the control of a court of equity,
which will compel the assignee to exercise reasonable
diligence.®

 

> Bogert v. Haight, 9 Paige, 297. It has been held that an assignment
of the individual estate is void, if the surplus is reserved to the debtor
without providing for the partnership debts. Goddard v. Hapgood, 25
Vt. 351.

* Sangston v. Gaither, 8 Md. 40; Beatty v. Davis, 9 Gill, 211; Win-
tringham v. Lafoy, 7 Cow. 735.

*Van Rossum v. Walker, 11 Barb. 237; Ely v. Cook, 18 Barb. 612;
Robins v. Embry, 18. & M. Ch. 207; Cross v. Bryant, 2 Scam. 36; Hall
v. Denison, 17 Vt. 810; Hollister v. Loud, 2 Mich. 309; Hoffman v. Mack-
all, 5 Ohio St, R. 124; Finlay v. Dickerson, 29 Ill. 9; Matter v. Potter, 54
Penn. 465 ; Van Hook v. Walton, 28 Tex. 59; Farquharson v. McDonald,
2 Heisk. 404 ; Gibson v. Walker, 11 Ired. 827.

* Carlton v. Baldwin, 22 Tex. 724.

* Wilt v. Franklin, 1 Binn, 502; Hower y. Geesaman, 17 S. & R. 251;
ASSIGNMENTS FOR CREDITORS. 409

 

TIME MUST BE REASONABLE.—If, however, any time
is prescribed it must be reasonable. "What is a reason-
able time depends upon the nature and circumstances of
each particular case. What would be reasonable and
proper in one case might be utterly unreasonable and
improper in another. Too limited a period of action
under the assignment may be as strong evidence of fraud
as one which is too extended. The time must always
be regulated by the nature and character of the proper-
ty assigned, and the time necessary to collect and con-
vert it into money. Regard must also be had to the
number of creditors and the distance at which they may
be placed. For instance, an assignment limiting the
time for creditors to file their claims to thirty days
would be clearly fraudulent against creditors residing
at a great distance. On the other hand, an assignment
extending the time to twelve months, where all the
creditors reside in the neighbourhood, would be equally
fraudulent, unless, from the nature of the property as-
signed, it could not be put ina shape for distribution
at an earlier period.’

A postponement of the time of distribution for
eight months,’ and twelve months,’ has been held
good. A postponement for more than a year has been
considered bad.* A requirement that the trust shall be
closed within two years has been held valid. The
vesting of a power in a majority of the creditors to post-
pone the distribution indefinitely vitiates the assign-

 

Stevens v. Bell, 6 Mass. 339; Hollister v. Loud, 2 Mich. 309 ; Bellamy v.
Bellamy, 6 Fla. 62; New Albany R. R. Co. v. Huth, 19 Ind. 444.

* Robins v. Embry, 1 8. & M. Ch. 207.

? Hempstead v. Johnston, 18 Ark. 123,

* Robins v. Embry, 1 8. & M. Ch. 207.

4 Sheerer v. Lautzerheizer, 6 Watts, 543.

° Danay. Bank of U. 8.5 W. & 8. 223.
410 ASSIGNMENTS FOR CREDITORS.

ment! As the assignment may provide that a distribu-
tion shall only be made among those creditors who as-
sent to it,’ the time allowed for expressing their consent
should be reasonable.®

DELAY IN SALE AND DISTRIBUTION.—In every as-
signment a certain amount of discretion is necessarily
granted to the assignee. He must, necessarily, from
the very nature of the trust conferred upon him, judge
for himself, in the absence of express directions, when
he can best convert the property into money. Some
delay of creditors is the necessary consequence of all
assignments, but that alone does not vitiate them. The
delay must be shown to be the intent and object of the
assignment, not an incidental consequence of it. The
object and intent to devote the property to the payment
of creditors being meritorious, the unavoidable delay in
bringing the property to sale has never been considered
as bringing such assignments within the statute.“ It is
the duty of the assignee to proceed without delay and
in a proper manner to convert the property into money
and pay the debts. He is not, however, bound to pro-
ceed to make forced sales after the manner of a sheriff
holding property on an execution, unless the terms of
the assignment or the manifest interests of the creditors
require it, All that is required of the assignee is that
he act in good faith, exercise a fair discretion, and do
in the premises according to his instructions what a man

 

* Sheppards v. Turpin, 3 Gratt. 373; Shearer v. Loftin, 26 Ala. 703.

* Conkling v. Carson, 11 Ill. 503; Finlay v. Dickerson, 29 Ill. 9.

* One year has been considered reasonable. Vaughan v. Evans, 1 Hill.
Ch. 414 ; Contra, Repplier v. Orrich, 7 Ohio, 2d part, 246; Knight v.
Packer, 1 Beasley, 214. Twenty months is allowedin Tennessee. Mayer v.
Pulliam, 2 Head. 346; Farquharson v. McDonald, 2 Heisk, 404.

* Sackett v. Mansfield, 26 Ill. 21; Wooster y. Stanfield, 11 Iowa, 128;
McClung v. Bergfield, 4 Minn. 148.
ASSIGNMENTS FOR CREDITORS. 411

of ordinary prudence and care would do in regard to
his own business! The assignment may by express
terms confer upon him all that the law gives by impli-
cation.?

ILLEGAL POWER vitiaTes.—No illegal power, how-
ever, should be conferred, for this will render the whole
assignment void. The debtor being the absolute owner
of the property and in no manner obliged to assign -
may annex such conditions and qualifications to the
transfer as he pleases. If he annex an improper con-
dition, the court must pronounce the assignment itself
void. It can not hold the transfer good and disregard
the condition, because that would be to take the prop-
erty from the debtor against his will. He having con-
sented to part with his title only upon certain conditions,
the transfer and condition must stand or fall together.
If, therefore, the court upholds the assignment, it must
of necessity protect and enforce the terms and condi-
tions upon which it is made. A discretion vested in
the assignee, however, will always be construed to
mean a reasonable and legal discretion, and will be
under the control of a court of equity.’

Lxeat ricuts.—The validity of every power con-
ferred upon an assignee must be determined according
to the respective legal rights of the debtor and his
creditors. Where an individual has incurred an obli-
gation to pay money, the time of payment is an essential

 

1 Hoffman v. Mackall, 5 Ohio St. R. 124.

? McClung v. Bergfield, 4 Minn, 148,

* Goddard v. Hapgood, 25 Vt. 581 ; Benedict v. Huntington, 32 N. Y.
219; vide Nicholson v. Leavitt, 6 N. Y. 510; 8. o. 10 N. ¥.591; 8c
4 Sand. 252; Dunham v. Waterman, 17 N. Y.9; 8. c. 6 Abb. Pr, 357; 8,
c. 8 Duer, 166; Jessup v. Hulse, 21.N. Y. 168; 8. c. 29 Barb. 539; Billings
y. Billings, 2 Cal. 107.
412 ASSIGNMENTS FOR CREDITORS.

part of the contract. When it arrives the law de-
mands an appropriation by the debtor of his property
in discharge of his liability, and, if he fails, will of itself
by its own process compel a performance of the duty.
The debtor by the creation of the trust may direct the
application of his property and devolve the duty of
making the appropriation upon a trustee. This the
law permits, and such delay as may be necessary for
that purpose But any delay beyond what may be
necessary for the proper execution of the trust involves
an illegal hindrance and thus renders the instrument
fraudulent and void.

DeLay oF saLE.—A direction to delay the sale of
the property for the purpose of obtaining higher prices
renders the assignment void, for the creditors are entitled
to have it sold at the best prices it will bring imme-
diately after the execution of the deed.” If the interval
between the date of the assignment and the day ap-
pointed for the sale appears unreasonably long, it
is indicative of an intent to shield the property for
a time for the use of the debtor and vitiates
the transfer. Forty days,‘ three months, four
months,® nine months,” and eleven months® have been
considered good. One year,’ eighteen months,? two

 

? Nicholson v, Leavitt, 6 N. Y. 510; s.c.10 N. ¥. 591; s.c. 4 Sandf.
252; Barney v. Griffin, 2 N. Y. 365.

* Hart vy. Crane, 7 Paige, 37; Hart v. Gedney, 1 Law Rep. 69.

3 Hafner v. Irwin, 1 Ired. 490. 4 Hafner v. Irwin, 1 Ired. 490.

* Christopher v. Covington, 2 B. Mon. 357.

° Cannon y. Peebles, 2 Ired. 449; 8. c. 4 Ired. 204.

7 Gilmer y. Earnhardt, 1 Jones (N. C.), 559.

® Young vy. Booe, 11 Ired, 347.

" Sheerer v. Lauterheizer, 6 Watts, 543; Contra, Graham v. Lockhart,
8 Ala. 9; Farquharson v. McDonald, 2 Heisk, 404; Rindskoff y. Guggen-
heim, 3 Cold. 284.

* Barcroft v. Snodgrass, 1 Cold. 430.
ASSIGNMENTS FOR CREDITORS. 413

years,’ three years,’ and five years® have been held fatal.
The fact that the assignment is made for the benefit
of a part only of the creditors whose debts are equal to
the fund assigned and who do not complain of the delay
thereby imposed does not alter the case, for there is
nothing to prevent them from pursuing their remedy
against other assets of the debtor, and they might by
superior vigilance exhaust those assets, leaving the fund
set apart by the instrument tied up till the end of the
prescribed period, when it would revert to the debtor.

Wirnout prLay.—A direction to the assignee to
sell without delay is good, for it means that he shall
proceed to sell without unreasonable or unnecessary de-
lay.” The assignee can not sell at once, but is bound to
exercise reasonable care and prudence in regard to the
time and circumstances of the sale. He may take time
to advertise, and must therefore select the day when
the sale is to take place. If no bidders should attend
upon the day appointed, he would have the power, and it
would be his duty, to postpone the sale to another day.
He will be obliged also to determine whether the
property shall be sold in separate parcels or all in
one parcel, and to exercise in that and other similar re-
spects some discretion as to the manner and circum-
stances of thesale. In all these arrangements he is
bound to consult the interests of the creditors, and

 

* Quarles v. Kerr, 14 Gratt. 48; vide Dance v. Seaman, 11 Gratt.
778.

? Adlum v. Yard, 1 Rawle, 163.

5 Storm v. Davenport, 1 Sandf. Ch. 135.

* Storm v. Davenport, 1 Sandf. Ch. 135. It has been held that the
deed may direct that the property shall not be sold until judgment is ob-
tained against the sureties Planters’ and Merchants’ Bank v. Clarke, 7
Ala. 765.

° Griffin v. Marquardt, 21 N. Y. 121; 8.0.17 N. Y. 28.
414 ASSIGNMENTS FOR CREDITORS.

has no right to defer the sale any longer than
these interests may be supposed imperatively to re-
quire.

Discretion.—It is manifestly impracticable to sell
in all cases alike within the same period after the exe-
cution of the assignment without discrimination. A
discretion may therefore be left to the assignee to be
regulated and controlled by the rules of law prohibiting
all delay except such as may be necessary for a suitable
preparation and a proper protection of the interests of
the creditors? A discretion of this character is one
that results ex necessitate from the duty which he has to
perform. The assignee may also be allowed to select the
place for sale. A provision which requires the assignee
to regard the interests of the debtor rather than that of
the creditors vitiates the transfer, but a direction to sell
at such time as may be best for the interest of the parties
concerned is legal, for he should consult the interests of
the parties in the order and according to their lawful
rights. The price may be left to his discretion” A
direction to him to sell at fair and reasonable prices is
valid, for whatever prices he can obtain upon a sale

 

* Jessup v. Hulse, 21 N. Y. 168; 8. c. 29 Barb. 539.

* Jessup v. Hulse, 21 N. Y. 168; 8.c. 29 Barb. 539; Bellows v. Patridge, 19
Barb. 176; Meeker v. Sanders, 6 Iowa, 61; Ogden v. Peters, 21 N. Y. 23;
8. ¢. 15 Barb. 560; Townsend v. Stearns, 32 N. Y. 209; McClung v. Berg-
field, 4 Minn. 148; Finlay v. Dickerson, 29 Ill. 9; McCallie v. Walton, 37
Geo. 611; Farquharson v. Eichelberger, 15 Md. 63; Maennel v. Murdock,
13 Md. 164; Mussey v. Noyes, 26 Vt. 462; Inloes vy. American Exchange
Bank, 11 Md. 173; Benedict v. Huntington, 82 N. Y. 219; Clapp v. Utley,
16 How. Pr. 384; Sackett v. Mansfield, 26 Ill. 21; vide Woodburn vy.
Mosher, 9 Barb. 255; Murphy vy. Bell, 8 How. Pr. 468.

* Cannon v. Peebles, 2 Ired. 449; s. o. 4 Ired. 204.

* Booth v. McNair, 14 Mich. 19.

° Ashurst v. Martin, 9 Port. 566; Norton y. Kearney, 10 Wis. 443.
ASSIGNMENTS FOR CREDITORS. 415

fairly made is in legal contemplation a fair and reason-
able price.’ A direction to him to sell as soon asit can

be done without material sacrifice would be proper for
the same reason.?

Mops or seLttinc.—The power may be given to him
to sell at either public or private sale. A direction to
sell at public auction is a badge of fraud, because it in-
dicates an intention to sacrifice the property. A pro-
vision that the assignee may sell gradually in the man-
ner and on the terms in which the debtor would have
sold the property in the course of his business makes the
deed void. It simply seeks, through the instrumentality
of an assignee, to provide for carrying on the business in
the same manner in which it had been before con-
ducted, and for an indefinite period free from all
control or interference on the part of creditors. A
debtor can not thus postpone his creditors for an indefi-
nite period without their consent. A conveyance which
thus attempts to deprive creditors of their just rights
to enforce their claims against the property of their
debtor by placing it beyond their control for an indefi-
nite and uncertain period must be regarded in con-
science and law as a fraud.’ Ifa manufacturer has on
hand a quantity of raw material at the time of the as-
signment, the assignee may be permitted to continue
the manufactory until this is worked up, and to pur-

 

‘Ely v. Hair, 16 B. Mon. 230.

2 Wooster v. Stanfield, 11 Iowa, 128.

? Halstead v. Gordon, 34 Barb. 422; Sackett v. Mansfield, 26 Ill. 21;
Hoffman y. Mackall, 5 Ohio St. R, 124 ; Nye v. Van Husan, 6 Mich.
829; Marks v. Hill, 15 Gratt. 400.

4 Work v. Ellis, 50 Barb. 512.

® American Exchange Bank, v. Inloes, 7 Md. 380; 8. c. 11 Md. 173 ;
Truitt v. Caldwell, 3 Minn. 364; Gere v. Murray, 6 Minn, 305; vide Rind-
skoff v. Guggenheim, 3 Cold. 284.
416 ASSIGNMENTS FOR CREDITORS.

chase any necessary article for that purpose.’ The ob-
ject of this power is to prevent the sacrifice that would
be occasioned by a sale of unmanufactured articles, and
thus more effectually promote the interests of the
creditors. It must therefore be made merely ancillary
to the winding up of the debtor’s business. If it makes
the creditors partners, it will render the assignment
void? It is always a badge of fraud,’ and the circum-
stances which will justify it must appear upon the face
of the assignment, so that the court may determine
whether it is valid or void as a question of law.*

Satxs on orEDITt.—A prohibition of sales on credit
is valid, for the assignee in the exercise of a just discre-
tion may postpone a sale so as to prevent a sacrifice.”
If, however, there are any circumstances which go to
show that a forced sale is intended to the injury of
the creditors, they should be taken into consideration as
an important item of evidence, and in connection with
other facts may justify the inference of an intent to de-
fraud.® If the instrument is wholly silent as to the
manner or terms of sale, the authority of the assignee to
exercise a discretion in regard to a sale for cash, or on
a reasonable credit is unquestionable upon the ordinary

 

? De Forrest v. Bacon, 2 Conn. 633 ; Cunningham v. Freeborn, 11 Wend.
241; 8. c. 3 Paige, 587; s.c. 1 Edw. 256; Foster v. Saco Manuf. Co. 12
Pick. 451; Woodward v. Marshall, 22 Pick. 468; Kendall v. New Eng.
Carpet Co. 18 Conn. 883; Janes vy. Whitbread, 73 E. C. L. 406; s. c.5 Eng.
L. & Eq. 431; Marks v. Hill, 15 Gratt. 400; Rindskoff v. Guggenheim, 3
Cold. 284; Contra, Renton y. Kelly, 49 Barb. 586; Dunham vy. Waterman,
17 N. Y. 9; 8. ¢. 3 Duer, 166; s.c. 6 Abb. Pr. 357.

* Owen v. Body, 5 A. & E. 28.

* De Forrest v. Bacon, 2 Conn. 633.

‘ Inloes v. American Exchange Bank, 11 Md. 173.

° Carpenter v. Underwood, 19 N. Y. 520; Grant v. Chapman, 38 N. Y.
293; Stern vy. Fisher, 32 Barb. 198; Van Rossum v. Walker, 11 Barb.

287.
°'Van Rossum v. Walker, 11 Barb. 237.
ASSIGNMENTS FOR CREDITORS. 417

principles which govern the duties of trustees An
express provision, therefore, for that which would be
implied by law if it were absent, will not vitiate the
assignment.?

A sale by an assignee upon credit may be an act of
good faith and the proper exercise of discretion, accord-
ing to circumstances. An inflexible rule that an assignee

 

* Hoffman v. Mackall, 5 Ohio St. R. 124.

* Hoffman v. Mackall, 5 Ohio St. R. 124; Conkling v. Conrad, 6 Ohio
St. R. 611; Gates v. Labeaume, 19 Mo. 17; Billings vy. Billings, 2 Cal.
107; Baldwin v. Peet, 22 Tex. 708; Christopher v. Covington, 2 B. Mon.
857; Shackelford v. Planters’ Bank, 22 Ala. 238; Johnson v. McAllister,
30 Mo. 827; Abercrombie vy. Bradford, 16 Ala. 560; Gimmell v. Adams,
11 Humph, 283; Petrekin v. Davis, Morris, 296; Smith v. Leavitts, 10 Ala.
92; Vaughan v. Evans, 1 Hill Ch. 414; England vy. Reynolds, 88 Ala. 370;
State v. Benoist, 37 Mo, 500; Gilmer v. Earnhardt, 1 Jones (N. C.) 559;
Berry v. Matthews, 13 Md. 537; Farquharson v. Hichelberger, 15 Md. 63;
Neally v. Ambrose, 21 Pick. 185;. Rogers v. De Forest, 7 Paige, 272;
Ashurst v. Martin, 9 Port. 566 ; Contra, Nicholson v. Leavitt, 6 N. Y. 510;
8. c. 10 N. Y. 591; 8. c.4 Sandf. 252; D’Ivernois v. Leavitt, 28 Barb. 63;
Burdick v. Post, 12 Barb. 168; s. c. 6 N. Y. 522; Houghton v. Wester-
velt, Seld. Notes, No. 1, 32; Porter v. Williams, 9 N. Y. 142; 8. c. 12
How. Pr. 107; Lyons v. Platner, 11 N. Y. Leg. Obs. 87; Rapalee v. Stew-
art, 27 N. Y. 310; Gates v. Andrews, 37 N. Y. 657; Bowen v. Parkhurst,
24 Ill. 257; Greenleaf v. Edes, 2 Minn. 264; Truitt v. Caldwell, 3 Minn.
364; Pierce v. Brewster, 32 Ill. 268; Sutton v. Hanford, 11 Mich. 513;
Hutchinson vy. Lord, 1 Wis. 286; Keep v. Sanderson, 2 Wis. 42; s. c. 12
Wis. 352; Haines v. Campbell, 8 Wis. 187; Sumner v. Hicks, 2 Black,
532. The power to sell upon such terms and conditions as in the judg«
ment of the assignee may appear best and most for the interest of the
creditor is valid, for it does not permit a sale on credit ; Kellogg v. Slau-
son, 11 N. Y. 302; s.c. 15 Barb. 56; Whitney v. Krows, 11 Barb. 198;
Southworth v. Sheldon, 7 How. Pr. 414; Clark v. Fuller, 21 Barb. 128;
Wilson v. Ferguson, 10 How. Pr. 175; Wilson v. Robertson, 21 N. Y. 587 ;
s, c. 19 How. Pr. 350; Grant v. Chapman, 38 N. Y. 293; Hutchinson v,
Lord, 1 Wis. 286; Keep vy. Sanderson, 2 Wis. 42; 8. c. 12 Wis. 352; Berry
y. Hayden, 7 Iowa, 469; Whipple v. Pope, 33 Ill. 334; Booth v. McNair,
14 Mich. 19; McCallie v. Walton, 37 Geo. 611; Contra, Schufeldt v. Aber-
nethy, 2 Duer, 533. The sale can not be for money or “‘available means; ”
Brigham vy. Tillinghast, 13 N. Y. 215; 8. c. 15 Barb. 618. The objection
does not apply when the assignment is made to the creditors themselves ;
Van Buskirk vy. Warren, 89 N. Y. 119; 8. c. 34 Barb. 457; 8. c. 18 Abb.
Pr. 145; Goss v. Neale, 5 Moore, 19.

27
418 ASSIGNMENTS FOR CREDITORS.

must, under all circumstances, sell for cash, may at
times prove disastrous to the interests of the creditors.
Credit may enter largely at times into business trans-
actions, so that to realize anything like a fair value in
the sale of property, it may be necessary, under some
circumstances, that the assignee shall be allowed the dis-
cretion to sell upon credit.’ If, however, the assignment
requires a credit to be given beyond that authorized by
law on sales by executors and administrators, it will in
general be deemed conclusive evidence of fraud.’ The
power to sell on credit is always a badge of fraud.’

DELAY OF DISTRIBUTION.—A power to withhold the
distribution of the assets for any length of time which
the assignee, in his discretion, may think proper, would
be invalid, for it would give him the power to constrain
the creditors into a commutation or release of their
claims.* If there is no authority to sell, a power to
deliver the property to creditors who will take it at
stipulated prices vitiates the deed.® A bank may
authorize a sale of its own notes.® Real estate can not
be reserved until all the personal property is exhausted."

CompromisE.—The assignee may be allowed to com-
promise bad and doubtful debts due to the assignor.®

 

1 Hoffman v. Mackall, 5 Ohio St. R. 124.

* Conkling v. Conrad, 6 Ohio St. R. 611. Six months has been held
good; Gilmer vy. Earnhardt, 1 Jones (N. C.) 559.

* Billings v. Billings, 2 Cal. 107 ; Baldwin y. Peet, 22 Tex. 708; Carl-
ton v. Baldwin, 22 Tex. 704. In Cannon v. Peebles, 2 Ired. 449, the terms
were left to the debtor.

‘ D'Ivernois v. Leavitt, 28 Barb. 63.

* Banning v. Sibley, 3 Minn. 389,

* Montgomery v. Galbraith, 11 8. & M. 555.

* Pierson v. Manning, 2 Mich. 445,

* Dow v. Platner, 16 N. Y. 562; Brigham vy. Tillinghast, 15 Barb. 618;
8.c. 18 N. ¥.215; Robins vy. Embry, 1 8. & M. Ch. 207; Murphy v. Bell, 8
How. Pr. 468; White v. Monsarrat, 18 B. Mon. 809; Berry v. Hayden, 7 Iowa,
469 ; Price v. De Ford, 18 Md. 489; Watkins v. Wallace, 19 Mich. 57.
ASSIGNMENTS FOR CREDITORS. 419

‘Without such a power he may lose a favorable oppor-
tunity to unite with others in a composition with a fail-
ing debtor, thus losing the whole claim, when by a
judicious and timely settlement he could have secured
a large portion of it Compositions, moreover, instead
of increasing, diminish the nominal assets; instead of
nursing the estate by delay, so as to enhance the proba-
bility of a surplus for the debtor’s benefit, tend to a
more speedy realization at the expense of a possible
sacrifice to some extent of his interests. The power of
composition can, therefore, in no sense be called a reser-
vation in favor of the debtor, except in the honest and
lawful sense of paying his debts as far and as fast as
possible Power may be given to the assignee to sub-
mit disputes that may arise about the property, or the
debts owing to or by the assignor to arbitration.?

UncoLLEctisLE peBts.—When debts are uncollect-
ible, it would be absurd to require suit to be brought.‘
A direction to collect the debts and demands, or go
much thereof as may be found collectible, is good. The
assignee may also sell such demands at public auction,
when the interests of the estate require such a disposi-
tion.’ Under peculiar circumstances the debtors to the
estate were permitted to pay in eight annual instalments.°

PowrR OVER PROPERTY.—It is manifest that the as-
signee ought to be vested with the means and discre-
tion plainly essential to the proper execution of the
trust.’ He may, therefore, be vested with the power

 

1 Bellows v. Patridge, 19 Barb. 176.

2 Dow v. Platner, 16 N. Y. 562; Price v. De Ford, 18 Md. 489.
> Watkins v. Wallace, 19 Mich. 57.

4 Watkins v. Wallace, 19 Mich 57,

> Casey v. Janes, 37 N. Y. 608.

° He parte Conway, 12 Ark. 302.

7 Bellows y. Patridge, 19 Barb. 176.
420 ASSIGNMENTS FOR CREDITORS.

to insure, to relieve the property from incumbrances,’
to release goods from an attachment by giving bond,
and indemnifying himself from the estate,’ to commence,
maintain, continue, and prosecute, and also to defend, all
suits at law or in equity, which he may deem necessary
to the execution of the trust,* to employ suitable agents
at a reasonable compensation to be paid out of the
estate,> to pay rent and taxes until the estate is sold,
to advertise for creditors in one or more newspapers as
soon as conveniently may be, and to select for this pur-
pose such papers as he may deem best calculated to give
information to the creditors,’ and to adopt such measures
generally in relation to the settlement of the estate,

as will in his judgment promote the true interests
thereof.

PowrEr TO morTeacE—A power to mortgage the
property if he shall deem it necessary is beneficial, for
it may enable him to guard against a forced and ruin-
ous sale, and may thus be advantageously used for the
interests of the creditors. .A power to manage and im-

 

} Whitney v. Krows, 11 Barb. 198.

? Whitney v. Krows, 11 Barb. 198.

3 Vernon v. Morton, 8 Dana, 247.

4 Van Nest v. Yoe, 1 Sandf. Ch. 4; Morton v. Vernon, 8 Dana, 247.

’ Mann v. Whitbeck, 17 Barb. 388; Vernon vy. Morton, 8 Dana, 247;
Rankin v. Lodor, 21 Ala. 380; Coate v. Williams, 9 Eng. L. & Eq. 481; 8. ¢.
7 Exch. 205; Gordon v. Cannon, 18 Gratt. 387; Maennel v. Murdock, 18 Md.
164; Van Dine v. Willett, 24 How. Pr. 206; s.c. 38 Barb. 319; Casey v.
Janes, 37 N. Y. 608; Hennessey v. Western Bank, 6 W. & 8. 300; Nye v.
Van Husan, 6 Mich. 329.

° Van Dine v, Willett, 24 How. Pr. 206; s.c. 38 Barb. 819; Morrison v.
Atwell, 9 Bosw. 503; Eyre v. Beebe, 28 How. Pr. 333.

" Ward y. Tingley, 4 Sandf. Ch. 476.

® Mann v. Whitbeck, 17 Barb. 388.

* Beatty v. Davis, 9 Gill, 211. This power is not allowed in New York;
Darling v. Rogers, 22 Wend. 488; s.c. 7 Paige, 272; Van Nest v. Yoe, t
Sandf. Ch. 4; Planck v. Schermerhorn, 3 Barb. Ch, 644.
ASSIGNMENTS FOR CREDITORS. 42)

prove the estate means that the estate is to be so
managed and improved or ameliorated in respect to its
condition as will be most beneficial for the creditors,!

EXEMPTING ASSIGNEE FROM LIABILITY.— While the as-
signee should be vested with such discretionary powers
as are essential to the proper execution of the trust, he
ought also to be held responsible for the faithful per-
formance of his duties to the full extent of the liability
that the law imposes. The diligence of a prudent man
is the measure of his duty. He stands in the light of a
paid agent and notin that of a gratuitous bailee. Such
an agent is lable for ordinary negligence or the want
of that degree of diligence which persons of common
prudence are accustomed to use about their own busi-
ness and affairs. A debtor is not permitted to put at
hazard the trust fund which justly belongs to his cred-
itors by authorizing the assignee to manage it without
due prudence and caution.’

Every provision in an assignment, therefore, which
exempts the assignee from any liability that he would
by law be subjected to as assignee, is, of itself, a badge of
fraud. The insertion of clauses which, in their opera-
tion, may lead to the waste and loss of the property, de-
clares an intention on the part of the debtor to devote
his property to some purpose other than that of the
payment of his debts. The intent to hinder, delay,
and defraud creditors is a necessary legal inference from
the provision. As between bailor and bailee there is
no objection to stipulating that the bailee shall not be
liable for any mere negligence, for it affects the con-
tracting parties alone. But in case of an assignment

 

? Hitchcock v. Cadmus, 2 Barb. 381; vide Schlussell y. Willett, 34
Barb. 615; s.c. 12 Abb. Pr. 397; 8. c. 22 How. Pr. 15.
® Litchfield v. White, 7 N. Y. 438; s.c. 3 Sand. 545.
422 ASSIGNMENTS FOR CREDITORS.

the rights of third parties are affected, and the debtor
is bound to select an assignee that will do all that the
law requires of a trustee in respect to the rights of those
that have a beneficial interest in the property assigned.’

Good faith is not sufficient, for gross negligence may
be entirely consistent with good faith and honesty of
intention? A provision that the assignee shall not be
accountable for property which does not actually come
to his possession renders the deed void, for he is bound
to use due diligence to obtain possession.? The as-
signee is bound to use due diligence and good faith in
the selection of fit agents and to hold them to a strict
and prompt responsibility for their acts, and after the
discharge of this obligation he may be exempt from
liability for losses arising through their negligence, de-
falcation, or misfeasance.*

REASONABLE EXPENSES.—A provision may be made
for the payment from the fund of the just and reason-
able expenses, costs, charges, and commissions of exe-
cuting and carrying the assignment into effect.” The

 

? Olmstead vy. Herrick, 1 E. D. Smith, 310; Metcalf v. Van Brunt, 37
Barb. 621 ; McIutire v. Benson, 20 Ill. 500; Robinson v. Nye, 21 Ill. 592;
Finlay v. Dickerson, 29 Ill. 9; True v. Congdon, 44 N. H. 48; August v.
Seeskind, 6 Cold. 166 ; Jacobs v. Allen, 18 Barb. 549; Whipple v. Pope,
83 Ill. 334; Hennessey v. Western Bank, 6 W. & S. 300; cide Maennel v.
Murdock, 18 Md. 164; Ashurst v. Martin, 9 Port. 566; Rankin v. Lodor,
21 Ala. 380.

? Hutchinson v. Lord, 1 Wis. 286.

* McIntire v. Benson, 20 Ill. 500; Finlay v. Dickerson, 29 Ill. 9; True
vy. Congdon, 44 N. H. 48; Pitts v. Viley, 4 Bibb. 446 ; oide Gordon v.
Cannon, 18 Gratt. 387.

‘Baldwin v. Peet, 22 Tex. 708; Gordon vy. Cannon, 18 Gratt. 387 ;
Van Nest v. Yoe, 1 Sandf. Ch. 4; Jacobs v. Allen, 18 Barb. 549 ; Hennes-
sey v. Western Bank, 6 W.& S. 300; Ashurst v. Martin, 9 Port. 566;
Rankin vy. Lodor, 21 Ala. 380.

* Eyre v. Beebe, 28 How. Pr. 333; Butt v. Peck, 1 Daly, 83; Iselin v.
Dalrymple, 27 How. Pr. 137; s.c. 2 Robt. 142; Halstead v. Gordon, 34 Barb.
422; Jacobs v. Remsen, 36 N. Y. 668.
ASSIGNMENTS FOR CREDITORS. 423

estate may be charged with the expenses and commis-
sions of the assignee.’ The assignee may demand pay-
ment for his services before accepting the trust.2 The
compensation allowed by the assignment must be
reasonable. An excessive allowance divests a portion
of the property from those who ought to have it, and
may induce the assignee to consult the interest of the
debtor at the expense of the creditors. A provision
can not be made allowing the assignee both commis:
sions and fees as an attorney. Such an allowance
places him in two inconsistent positions, which he
ought not to be permitted to occupy, for the same
reason that a trustee ought not to be permitted to pur-
chase at his own sale. If a third person were to be em-
ployed as counsel, the assignee would probably proceed
to close up the assignment with as little litigation as
possible. But where the assignee is to pay fees to
himself as counsel, a direct pecuniary inducement is
offered to him to engage in useless litigation and there-
by impair the fund and delay the final settlement of
the assignment. The assignee is also placed under a
constant temptation to consult himself in his capacity
of attorney in the transaction of every piece of business
connected with the trust, to turn from himself as as-
signee to himself as attorney, and take advice and charge

 

* Bank y. Cox, 6 Me. 395; Keteltas v. Wilson, 36 Barb. 298; 8. 0. 23
How. Pr. 69; Halstead v. Gordon, 384 Barb. 422; Blow v. Gage, 44 Ill.
208 ; Lentilhon v. Moffatt, 1 Edw. 451; U. 8. v. Huth, 4 B. Mon. 423;
Vernon y. Morton, 8 Dana, 247; Flint v. Clinton Co. 12 N.H. 480. In
New York the assignee’s compensation is limited to the commissions al-
lowed by law to executors, administrators, and guardians; Barney v. Grif-
fin, 2 N. Y. 365; Campbell v. Woodworth, 24 N. Y. 304 ; 8. c, 38 Barb.
425. In other States an excessive allowance is merely a badge of fraud;
Arthur v. Commercial Bank, 9 8. & M. 394; Ingraham v. Grigg, 13 8. &
M. 22.

? Myers v. Fenn, 5 Wall. 205.

° Barney v. Griffin, 2 N. Y. 865.
424 ASSIGNMENTS FOR CREDITORS.

the fund with a fee. A failing debtor can not be per-
mitted to confide a power of this character to a person
of his own selection, and thereby tempt him to constant
infidelity to his trust.’

ATTORNEY'S FEES.—A1I reasonable and proper charges
incurred by the assignee in the employment of attorneys
may be allowed. The protection of the estate may
often render it necessary to consult and to employ
counsel, and the sums paid in such cases should be
allowed to a reasonable extent in all cases where it ap-
pears that any necessity induced such consultation or
employment, or that circumstances existed which justi-
fied the expenditure. Such sumsare properly embraced
in the item of expenses.? Even without such a pro-
vision the assignee has the power to enforce and defend
rights connected with and growing out of the trust, and
to pay the expenses so incurred.’

Destor’s EXPENSES.—No allowance can be made for
the expenses incurred by the debtor in defending suits
which may be brought by creditors for the recovery of
their debts,* or in relation to the trust.© Such an al-
lowance would secure a benefit from the fund to which
the debtor is not entitled, and if upheld would enable
him to drive his creditors into almost any terms of com-
promise. It is a standing notice to all creditors that
any effort which they may make to question the amount
due to them or to others, as stated in the assignment, or

 

? Heacock v. Durand, 42 Ill. 230; Nichols v. McEwen, 17 N. Y. 22;
8. c. 21 Barb. 65.

2 Butt v. Peck, 1 Daly, 83.

‘Iselin v. Dalrymple, 27 How. Pr. 187; s.c. 2 Robt. 182; Jacobs’ v.
Remsen, 36 N. Y. 668.

* Sewall v. Russell, 2 Paige, 175.

° Austin y. Bell, 20 Johns, 442.
ASSIGNMENTS FOR CREDITORS. 425

to compel its execution, will be resisted by the debtor
to the end of the law, and that he will then subtract
the costs and expenses incurred by him, in so doing,
from the fund to which they are looking for a divi-
dend. It also postpones a distribution for an indefinite
length of time. The assignee can not reasonably con-
jecture what amount of expenses will be incurred by the
debtor in litigation, for the latter has the power to de-
termine what suits shall be defended, and to what ex-
tremity of appeal such defence shall be carried. To
avoid responsibility he would be compelled to defer
the close of his trust until these should be ascertained.
It would, therefore, place in the hands of the debtor a
means, arising from the assigned property, to deter
creditors from questioning his acts, and ultimately to
coerce them into his own terms of settlement.! The as-
signment may name the attorney to be employed by
the assignee.”

PayMENT OF DiIvipeNDs.—There may be a require-
ment that no dividend shall be paid unless the person
entitled thereto, or his agent, or some credible person
certify on oath that the demand. is really due and
founded on a lawful consideration,’ or unless the debt
is duly proved.* The amount of the demand may be
limited to such as may be found to be due upon ex-
amination and settlement.’ A prohibition of payment,
unless the debtor pronounces the claim to be just, with

 

* Mead v. Phillips, 1 Sandf. Ch. 83,

? Baldwin v. Peet, 22 Tex. 708.

5 Ashurst v. Martin, 9 Port. 566; U. 8. Bank v. Huth, 4 B. Mon.
423.

“U. 8. Bank v. Huth, 4 B. Mon. 423; Spencer v. Jackson, 2 R. I.
35; U. 8. v. Bank of U. 8. 8 Rob. (La.) 262.

° Mussey v. Noyes, 26 Vt. 462.
426 ASSIGNMENTS FOR CREDITORS.

permission to the creditors to establish their demands
by suit or arbitration, is good Costs that have ac-
crued or may accrue may be excluded.? The assignee
may be required to exhibit a statement of his accounts
periodically to the debtor.’

CoMPOSITION WITH CREDITORS.—The assignee can not
be allowed to compound with the creditors.t <A. pro-
vision excluding or postponing all creditors who sue
the debtor or bring the estate into litigation renders the
assignment fraudulent. Such a condition is calculated
and intended to deter creditors from attacking the deed
lest they lose the benefits of its provisions. It is a hin-
drance to creditors in the recovery of their just demands.
It not only imposes upon them the necessity of acquies-
cing in the operation of the deed, but it places them at
the mercy of the assignee. They must take what he
chooses to pay; or if they refuse and sue they get
nothing.®

 

» Ha parte Conway, 12 Ark. 302; Robins v. Embry, 18. & M. Ch.
207.

? Gates v. Labeaume, 19 Mo. 17.

* Ex parte Conway, 12 Ark. 802; Robins v. Embry, 1 8. & M. Ch.
207.

* Grover v. Wakeman, 11 Wend. 187; 8. c. 4 Paige, 23; Woodburn v.
Mosher, 9 Barb. 255; Hudson v. Maze, 8 Scam. 578; Smith y. Leavitts, 10
Ala, 92; Smith v. Hurst, 10 Hare, 30; 8. c. 15 Eng. L. & Eq. 520; vide
White v. Monsarrat, 18 B. Mon. 809; State v. Benoist, 837 Mo. 500.

* Gimell v. Adams, 11 Humph. 288 ; Marsh v. Bennett, 5 McLean, 117;
Riggs v. Murray, 2 Johns. Ch. 565; s.c. 15 Johns. 571; vide McFarland
y. Birdsall, 14 Ind. 126,
CHAPTER XV.

ASSIGNMENTS EXACTING RELEASES.

Nature oF QuESTION.—An assignment sometimes
contains a stipulation that no creditor shall share in the
estate until he shall execute a release discharging the
debtor from all demands against him. The question
in such case is whether an assignment for the benefit
of creditors, upon condition that each shall execute a
previous release of his whole debt, or be postponed un-
til all other creditors signing a release shall be satis-
fied in full, is valid; in other words, whether a debtor
in failing circumstances and unable to pay all his debts,
may say to his creditors that they shall have none of
his estate unless they will release the whole of their
claim for a portion, and if they decline to surrender the
whole for a part, they shall be deferred to the preca-
rious balance which the assenting creditors may leave
for the satisfaction of the claims of the recusant
creditors.

Pusiic poticy.—Every restraint calculated to de-
ter a debtor in failing circumstances from acting on the
fears and apprehensions of his creditors ought to be sus-
tained. It is sound policy in commercial affairs, and
the best security for fair dealing, that the creditor should
be assured that there is not with the debtor an option
at any time to compel him to accept a portion of his
428 ASSIGNMENTS EXACTING RELEASES.

debt, or incur the contingency of losing the whole. To
sustain such an assignment is to enable the debtor to
prescribe his own law. The debtor dictates the terms
of the settlement. If the creditor refuses, his safest se-
curity for his debt, the property of his debtor, is trans-
ferred beyond his reach. Unlike deeds of composition,
to which none are compelled and the assent of all is
necessary, and without the assent of all nothing passes,
in such an assignment the terms are absolute and irre-
vocable, and the creditor must take them as they stand
or refuse at the risk of losing his debt. It is the will
of the debtor which is law to the creditor. The debtor
by this contrivance makes his own bankrupt law. He
has, however, no right to dictate terms to his creditors,
and to exclude a dona fide creditor from all benefit in
his property who will not accede to those terms.’

Corrcion.—Parties not under legal disabilities may
make such contracts as they please, and if they are sup-
ported by a consideration, and there is no fraud in the
case, they will not be disturbed. If a debtor, therefore,
with his property in his own hands and open to the le-
gal pursuit of his creditors, can satisfy them that it is
for their interest to accept a compromise and give him
an absolute discharge, there is no legal objection to it.
They treat upon equal terms. The ordinary legal rem-
edies of the creditor are not obstructed. But the
case is materially changed when the debtor first places
his property beyond the reach of his creditors and then
proposes to them terms of accommodation. He ob-
structs their legal remedies, hinders and delays them in
the prosecution of their suits by putting his property
into the hands of an assignee, with the view of getting

 

' Brown v. Knox, 6 Mo. 802; Miller v. Conklin, 17 Geo. 480 ; Hender-
son v. Bliss, 8 Ind. 100.
ASSIGNMENTS EXACTING RELEASES. 429

an absolute discharge from his debts, and exempting
his future acquisitions from all liability! It is taking
an undue advantage of creditors to impose this con-
dition. Volenti non fit injuria, if the creditors accept,
but it is making volunteers by compulsion. It is mock-
ery to say that consent under such circumstances is
optional or voluntary.

Upon principles of morality, law, and justice, a
debtor is bound to apply his present property and his
future earnings and acquirements to the payment of
his just debts, and creditors upon the clearest principles
of natural justice and of law have a right to pursue such
property, earnings, and acquirements until their claims
are fully satisfied and paid. Of this inherent right of the
creditor, unless relinquished by his consent, the debtor
has no right to deprive him. All unjust and indirect
means used by a debtor to extort from his creditor a
surrender of such rights; all physical or moral coercion
resorted to by a debtor to effect such purpose, are fraud-
ulent against creditors. The design of an assignment
exacting releases is apparent upon the face of the deed,
and can not leave a moment’s doubt upon the subject in
the mind of any one. Its object is by a species of moral
duress, by indirect means, by a violation of the prin-
ciples of natural justice and right, to place the creditors
in a condition whereby they are compelled to relinquish
all claim to any part of the present property of their
debtor, or to surrender all right to seek payment out
of his future earnings and acquirements. But the
debtor has no right to insist on a release as the only
condition upon which his property shall be distributed;
consequently he has no right to make a provision de-
signed and calculated to procure a release. The law

 

1 Grover v. Wakeman, 11 Wend. 187; 8. c. 4 Paige, 23.
430 ASSIGNMENTS EXACTING RELEASES.

will not allow a person to accomplish indirectly what
heis prohibited from doing directly. The injustice and
impropriety of such an effort on the part of the debtor
must, moreover, shock the moral sense, and its fraudu-
lent design and effect upon the rights of those creditors
who refuse to release are obvious.

DisTINCTION BETWEEN CONDITIONAL AND UNCONDI-
TIONAL PREFERENCES.—A debtor may, undoubtedly, by
a transfer of his property, prefer one creditor or class
of creditors to another, but the transfer must be bona
fide for the purpose of conferring a benefit on the
creditor, not of securing a benefit to the debtor. The
privilege can not be exerted as a device contrived for
the purpose of obtaining a benefit to the debtor, by
imposing on his creditors what in law can not be other-
wise regarded than as a fraudulent moral coercion
practiced upon them to induce an unwilling surrender
to him of their just rights.2 It does not, therefore, fol-
low that, because a debtor may grant a preference ab-
solutely that he may also do so conditionally. The
distinction is obvious. In the one case he proposes to
pay one or more creditors, still leaving his liability and
the balance of his property unaffected as regards the
others, while in the other case he designs to influence
or coerce all into the terms stipulated, or remove his
property out of their reach. He holds out to the
creditors this contingent preference to become absolute
only by an act of the creditor, beneficial to the debtor
himself by a release of the debt. Such a power would
enable the debtor at any time to nullify the statute and
lock up his property against his creditors until they ac-

 

‘McCall v. Hinkley, 4 Gill, 128 ; The Watchman, Ware, 232.
* Brown y. Knox, 6 Mo. 302 ; McCall v. Hinkley, 4 Gill, 128.
ASSIGNMENTS EXACTING RELEASES. 431

cept the terms he chooses to dictate. If one assignment
fails through their refusal to accept, he may make
another assignment of the resulting trust and thus keep
them perpetually at bay.

The real object of the provision, moreover, is not so
much to afford a preference to particular creditors as to
secure a release from them. And to this end it is ad-
mirably adapted. It is contrived so as to create a
scramble among the creditors, and a scramble under
such circumstances that its natural result will be an un-
just advantage to the debtor. It takes away from
every creditor the power of acting in the premises ac.
cording to his individual wishes and judgment, and
makes his final course dependent on the course adopted
by every other creditor. The purpose of producing
this perplexity and embarrassment is, not to effect a
just distribution of the estate, but to secure an impor-
tant advantage to the debtor by its skillful distribution.
This advantage, moreover, is not one to which he is in
equity and good conscience entitled. The law does not
recognize any right on the part of an insolvent debtor
to an absolute discharge from his creditors on distribu-
ting his estate among them.

FurTuRE EARNINGS.—One who contracts a debt agrees
not merely that he will pay it if his present property is
sufficient, but also if his future acquisitions shall give him
the power. In fine he pledges both the property he pos-
sesses and his capacity to acquire property. Itis not true
that parties have in view only the property in possession
when the contract is formed, or that the obligation of in-
debtedness does not extend to future acquisitions. The
prospect of an inheritance frequently forms a leading in-
ducement to credit, and industry, talents, and integrity

 

? Grover v. Wakeman, 11 Wend. 187; s.c. 4 Paige, 23; Albert v. Winn,
7 Gill. 446; s.c.5 Md. 66.
' 489 ASSIGNMENTS EXACTING RELEASES.

constitute a fund which is as confidently trusted to as
property itself. There is not a country in the world
where a debtor, by his own act, can compel his creditors
to take his property and discharge him from his in-
debtedness. The cessto bonorum of the Roman law,
which greatly mitigated the severity of the ancient law
by releasing the debtor who delivered up his estate to
his creditors from a degrading servitude, did not oper-
ate to extinguish the debt. His subsequent acquisi-
tions, with some exceptions, were liable until his debts
were fully paid.’

The right, either legal or moral, of a debtor, to pro-
vide in his assignment for a release from debts which
he has not paid, stands on no better ground than a
right to secure from his creditors a return of a certain
per centage on the property distributed, or an engage-
ment that his creditors shall give him a new credit.’ In
either case there is a reservation of a benefit to the
debtor. When there is a reservation of the future earn-
ing and acquirement, it constitutes an attempt to obtain
a full release by a partial payment.’ Although the stat-
ute permits a debtor to prefer one creditor to another,
it does not permit him to prefer himself to any creditor.

DissENT OF JURISTs.— Wherever such an assignment
has been sustained it has been against the sound convic-
tion and judgment of the courts, and with a constant ex-
pression of regret that a doctrine at variance with equity
and with morals must be maintained upon the prevailing
understanding of the public. In deference to this opinion
some among the purest and loftiest legal minds have
yielded to their own convictions. Chief Justice Marshall

 

* Grover v. Wakeman, 11 Wend. 187,

2 Grover v. Wakeman, 11 Wend. 187.

3 McCall v. Hinkley, 4 Gill. 128 ; Albert v. Winn. 7 Gill. 446; 8. ¢. 5
Mad. 66; Grover v. Wakeman, 11 Wend. 187.
ASSIGNMENTS EXACTING RELEASES. 433

said: “ We are far from being satisfied that upon general
principles such a deed ought to be sustained.”1 Justice
Story said: “I am free to say that if the question were
entirely new, and many estates had not passed upon the
faith of such assignments, the strong inclination of my
mind would be against the validity of them.” Chief,
Justice Taney said: “The court was not prepared to
affirm that preferences of this character are entirely con-
sistent with the principle of the statute of 13 Eliz.”®
These eminent men yielded to what at the time was
deemed the preponderance of opinion, but the judgment
and conviction of these great ornaments and lights of
the law may still be challenged to support the doctrine
of the invalidity of such an assignment. The doctrine
is also supported by the weight of authority.

 

* Brashear v. West, 7 Pet. 608.

? Halsey v. Whitney, 4 Mason, 206.

’ White v. Winn, 8 Gill. 499.

* Grover vy. Wakeman, 11 Wend. 187; s. co. 4 Paige, 23; Albert v.
Winn. 7 Gill. 446; s.c. 5 Md. 66; s.c. 2 Md. Ch. 169; Widgery v. Haskell,
5 Mass. 144; Ingraham v. Geyer, 13 Mass. 146; Harris v. Sumner, 2 Pick.
129; Ingraham v. Wheeler, 6 Conn. 277; Atkinson v. Jordan, 5 Ohio, 295;
s.c. Wright, 247; The Watchman, Ware, 232; Armstrong vy. Byrne, 1 Edw.
79; Mills v. Levy, 2 Edw. 183; Ames y. Blunt, 5 Paige, 13; Van Winkle v.
McKee, 7 Mo. 435; Brown v. Knox, 6 Mo. 302; Drake v. Rogers, 6 Mo. 317;
Barrett v. Reed, Wright, 700; Howell v. Edgar, 3 Scam. 417; Pearson y.
Crosby, 23 Me. 261; Woolsey v. Urner, Wright, 606 ; Ramsdell v. Sigerson,
2 Gilman, 78; Conklin v. Carson, 11 Il. 503; Vose v. Holcomb, 31 Me. 407;
Jones y. Dougherty, 10 Geo. 273; Graves v. Roy, 13 La. 454; Miller v. Conk-
lin, 17 Geo. 480; Henderson y. Bliss, 8 Ind.100; Smith v. Woodruff, 1 Hilt.
462; Butler v. Jaffray, 12 Ind. 504; Wilde vy. Rawlings, 1 Head, 34; Palmer
y. Giles, 5 Jones Eq. 75; Hurd v. Silsbee, 10 N. H. 108; Wyles v. Beales, 1
Gray, 233; Edwards v. Mitchell, 1 Gray, 239; Bowles v. Graves, 4 Gray, 117;
Contra, McCall v. Hinkley, 4 Gill. 128 ; Kettlewell v. Stewart,8 Gill, 472;
White v. Winn, 8 Gill. 499; Green y. Trieber, 3 Md. 11; Brashear v. West,
7 Pet. 608; Lippincott v. Barker, 2 Binn. 174; King v. Watson, 8 Price, 6;
Halsey v. Whitney, 4 Mason, 206; Pearpoint v. Graham, 4 Wash. C. C. 382;
Bank v. Cox, 6 Me. 895; Doe v. Scribner, 41 Me. 277; Nostrand v. Attwood,
19 Pick. 281; Livingston v. Bell, 3 Watts, 198; Lea’s Appeal, 9 Penn.
504; Robinson v. Rapelye, 2 Stew. 86; Haven v. Richardson, 5 N. H. 113;

28
434 ASSIGNMENTS EXACTING RELEASES.

RELEASE WHILE DEBTOR REMAINS OwNER.—A pref:
erence given in consequence of a release is valid. In no
sense can it be said that an agreement by a debtor with
a creditor, to prefer him for a part of his demand in an
assignment, on condition or in consideration that he shall
be released from the balance, is a fraud upon those who
refuse to become parties to such a contract. The par-
ties treat upon equal terms. The property is open to
the pursuit of creditors, and their ordinary legal reme-
dies are not in any degree obstructed. That being so,
and with the property still in the hands of the debtor,
there is no legal objection to any contract of compromise
between the two, even though the consideration for such
compromise moving to the creditors is the advantage of
a preference over others in a contemplated assign-
ment.' The assignee may also covenant to obtain a
release.”

Must convey atu.—As there are some States in
which an assignment exacting releases is held valid, the
law relating to them will now be considered.

Such an assignment must convey all the property of
the debtor The creditors are entitled to the benefit of

 

Todd vy. Bucknam, 11 Me. 41; Niolon v. Douglass, 2 Hill Ch. 443; Skip-
with v. Cunningham, 8 Leigh, 271; Ashurst v. Martin, 9 Port. 566; Hall
vy. Denison, 17 Vt. 810; Phippen v. Durham, 8 Gratt. 457; Heydock v.
Stanhope, 1 Curt. 471; Spencer y. Jackson, 2 R. I. 35; Dockray v. Dock-
ray, 2 R. I. 547; Nightingale v. Harris, 6 R. I. 821; Gordon v. Cannon,
18 Gratt. 387.

+ Spaulding v. Strang, 37 N. Y. 135; 8. c. 88 N.Y. 9; 8. c. 82 Barb.
235; 8. c. 36 Barb. 310; Low v. Graydon, 50 Barb. 414; Hatch v. Smith,
5 Mass. 42; Powers v. Graydon, 10 Bosw. 630; s. c. 25 How. Pr. 512; Re-
nard vy. Graydon, 39 Barb. 548; s. c. 25 How. Pr. 178; s.c. 86 Barb. 310 ;
8. C. 82 Barb. 235.

? Hastings v. Belknap, 1 Denio, 190.

* Green v. Trieber, 3 Md, 11; Sangston v. Gaither, 3 Md. 40; Seaving
y. Brinkerhof, 5 Johns. Ch. 829; Thomas v. Jenks, 5 Rawle, 221; Hen-
nessey v. Western Bank, 6 W. & 8. 800; im ve Wilson, 4 Penn. 430; Johns
ASSIGNMENTS EXACTING RELEASES. 435

the whole estate, of which they can not be deprived by
an arrangement which would impose upon them the ne-
cessity of resorting to a part of it in exclusion of the rest.
The very imposition of a choice which might prove unfor-
tunate would be an exposure of them to a peril which
they are not bound to encounter. An assignment,
therefore, that would present but a part of the effects to
the creditors and refuse the rest is necessarily fraudu-
lent, inasmuch as it might be a means to extort an un-
fair advantage When it is made by partners, it must
convey all their property as well their individual
estate as their partnership effects.”

Not RESERVE SHARE OF DISSENTING CREDITORS.—If
the assignment stipulates that the share which would
otherwise belong to the creditor who should come in
and accede to the terms and execute a release, shall, on
his refusal or default, be paid back to the debtor, or
placed at his disposal by the assignee, it is deemed
oppressive and fraudulent and destroys the validity of
the assignment. The effect is to lock up the surplus
until the preferred creditors are paid off and the others
are not only hindered and delayed in their remedies,
but they are necessarily involved in controversy. The
property passes to the assignee and cannot be touched,
and the only remedy would be against him as assignee.’

 

vy. Bolton, 12 Penn. 339; Graves vy. Roy, 13 La. 454 ; Henderson v. Bliss, 8
Ind. 100; Gadsden vy. Carson, 9 Rich. Eq. 252; Gordon y. Cannon, 18
Gratt. 387; Contra, Halsey v. Whitney, 4 Mason, 206; Bank v. Cox, 6 Me.
895; Spencer v. Jackson, 2 R. I. 35.

» Hennessey v. Western Bank, 6 W. & S. 300; in re Wilson, 4 Penn.
430; Weber v. Samuel, 7 Penn. 499.

? Insurance Co. v. Wallis, 23 Md. 173; Thomas v. Jenks, 5 Rawle, 221 ;
Hennessey v. Western Bank, 6 W. & S. 800; Henderson v. Bliss, 8 Ind.
100; Gordon y. Cannon, 18 Gratt. 387.

* Reavis v. Garner, 12 Ala. 661; Sangston v. Gaither, 8 Md. 40;
Trieber vy. Green, 3 Md. 11; Hollins v. Mayer, 8 Md. Ch. 848; Burd’v.
436 ASSIGNMENTS EXACTING RELEASES.

RESERVATION OF suRPLUS.—The surplus which re-
mains after the payment in full of ali the claims of the
creditors who assent to the deed, can not be reserved to
the debtor." There must be no reservation to the
debtor, either express or implied. The court cannot
look outside of the assignment to ascertain whether
there will be a surplus or not. That would make the
efficacy of the instrument depend on extrinsic ‘circum-
stances when the law requires that its intent shall be
gathered from its face. When the surplus is not dis-
posed of in the assignment it belongs to the debtor as
a resulting trust. It is true the other creditors may
prosecute their claims against the assignee in respect of
this surplus, but they could arrest it only by process
of law, and the debtor has no right to compel them
to resort to this, for the fund would be claimed
not under the deed but as the property of the
debtor.?

No extrinsic EvIDENcE.—It is the duty of the party
who sets up the assignment to show that the debtor has
done what the law requires to give it validity and
effect. Extrinsic evidence can not be given to show
that in point of fact the assignment does convey all the
property which the debtor had at the time of its execu-

 

Smith, 4 Dall. 76; Austin v. Bell, 20 Johns. 442; Seaving v. Brinkerhoff,
5 Johns. Ch. 829; Lentilhon v. Moffat, 1 Edw. 451; Contra, Halsey v.
Whitney, 4 Mason, 206; Andrews v. Ludlow, 5 Pick. 28 ; Dockray v.
Dockray, 2 R. I. 547.

* Bridges v. Hindes, 16 Md. 101; Grimshaw vy. Walker, 12 Ala. 101 ;
Contra, Andrews vy. Ludlow, 5 Pick. 28; Livingston v. Bell, 3 Watts, 198;
Mechanics’ Bank y. Gorman, 8 W. & 8. 304; Haven y. Richardson, 5 N.
H. 113; Skipwith v. Cunningham, 8 Leigh, 271; Gordon v. Cannon, 18
Gratt. 387; Todd v. Bucknam, 11 Me. 41.

* Malcolm v. Hodges, 8 Md. 418; West v. Snodgrass, 17 Ala. 549.

*“Sangston vy. Gaither, 8 Md. 40; Keighler y. Nicholson, 4 Md. Ch.
86.
ASSIGNMENTS EXACTING RELEASES. 437

tion! The deed on its face must show that it conveys
all the debtor’s property, and its terms must be incon-
sistent with the retention of any property either real or
personal.? No particular words are necessary to be
used, but such must be employed as will convey all the
debtor’s property. All that is required is, that the
words should comprehend all, and thereby negative
every presumption that there is other property. Any
apt words to this end will be sufficient? The words
“estate of every kind and description” are sufficient.‘
It is not necessary that there should be words of in-
heritance. In a deed of trust conveying property for
the payment of the debts of the grantor, the omission of
the words “and his heirs” does not have the effect of
confining the grant to personalty, but where the intent
to convey all the property of the debtor is manifest, a
fee simple in realty passes by implication under the
deed.

All the partners must unite in the execution of such
an assignment.® The right of dower of the debtor's
wife need not be conveyed.’ A creditor who holds a
claim against two debtors composing one firm, has no
right to complain because a person who is partner with
them in another firm does not join in the deed. All he

 

1 Bamitz v. Rice, 14 Md. 24; Contra, Nightingale v. Harris, 6 R. I.
321; Gordon vy. Cannon, 18 Gratt. 387.

? Rosenberg v. Moore, 11 Md. 376 ; Barnitz v. Rice, 14 Md. 24; Seay-
ing v. Brinkerhoff, 5 Johns. Ch. 329.

’ Barnitz v. Rice, 14 Md. 24.

4 Farquharson v. Hichelberger, 15 Md. 63; Bridges v. Hindes, 16 Ma.
i01.

5 Farquharson y. Eichelberger, 15 Md. 63; Spessard v. Rohrer, 9 Gill.
261; Angell v. Rosenburg, 12 Mich. 241.

° In re Wilson, 4 Penn. 430; Hennessey v. Western Bank, 6 W. & S.
800; vide Gordon v. Cannon, 18 Gratt. 387.

7 Breitenbach y. Dungan, 1 A. L. Reg. 419.
438 ASSIGNMENTS EXACTING RELEASES.

has a right to ask is that the assets of his debtors, both
individual and partnership, shall be made liable for the
payment of his debt.’

A provision for the payment of forty per cent., with
a stipulation for a return of the surplus, renders the
deed void. If the deed professes to convey all but:
assigns only a portion, it is fraudulent? If the debtor
absconds with a portion of the funds and executes an
assignment of the balance, the deed is void, but it must
be proved that he intends to defraud by the deed, and
that it is actually the instrument to defraud.* A release
will be void if the debtor has executed prior fraudu-
lent conveyances.

ReEasonaBLe timE.—The deed should give to the
creditors all the information in the power of the debtor
as to the nature and value of the property conveyed,
and the amount of the debts intended to be provided
for, and a reasonable time to obtain such information as
the deed may not afford, and to make up their minds
deliberately and understandingly whether they will ac-
cept or reject the offer made to them. If this is not
done when it can conveniently be done the omission is

 

> Maennel v. Murdock, 13 Md. 164. It has been held that property
encumbered beyond its value—Fassett v. Phillips, 4 Whart. 399,—or of small
value—Phippen y. Durham, 8 Gratt. 457,—need not be included, and that a
small sum might be reserved to pay small debts; Skipwith v. Cunningham,
8 Leigh, 271.

2 Jacot. v. Corbett, 1 Chev. Eq. 71. It has been held that a provision
for the payment of only a certain per cent. is good when it appears that
no benefit will result thereby to the debtor ; Nightingale v. Harris, 6 R. I.
321,

5 Le Prince v. Guillemot, 1 Rich. Eq. 187; Nightingale v. Harris, 6 R.
I. 321.

* Stewart v. Spencer, 1 Curt. 1573 Spencer v. Jackson, 2 R. I. 35;
Nightingale v. Harris, 6 R. I. 821; Foley v. Bitter, 34 Md. 646,

* Doe v. Scribner, 41 Me. 277,
ASSIGNMENTS EXACTING RELEASES. 439

a badge of fraud What is a reasonable time is a mat-
ter dependent upon the particular circumstances of each
case. A time may be so short or so long as justly to
raise a presumption of fraud.’ If no time is fixed with-
in which the release must be executed the deed is void.?
Two months,‘ and six months,> have been deemed sufii-
cient. Nine months has been considered too long.® A
different time may be allowed to resident and non-resi-
dent creditors.”

No doubt which may exist as to the construction of
the deed, nor any difficulty which may arise in making
an election can affect the case, if the meaning of the deed
can be ascertained. The circumstances which create the
doubt or difficulty may tend to prove, and even be in
themselves sufficient to prove an intent to delay,
hinder, and defraud creditors and make the deed
void, but if no such intention exists the deed will be
valid.®

PrereREnces.—The deed need not convey the prop-
erty for the benefit of all creditors equally, but may
give preferences,’ and confer a benefit upon some cred-
itors absolutely and to others only upon condition.”

 

2 Gordon v. Cannon, 18 Gratt. 387.

? Halsey v. Whitney, 4 Mason, 206; Pearpoint vy. Graham, 4 Wash. C.
C. 232; Ashurst v. Martin, 9 Port. 566,

° Henderson v. Bliss, 8 Ind. 100; Pearpoint vy. Graham, 4 Wash. C. C.
282.

4 Pearpoint v. Graham, 4 Wash. C. C, 232; Gordon v. Cannon, 18
Gratt. 387; Contra, Fox v. Adams, 5 Me. 245.

5 Halsey v. Whitney, 4 Mason, 206; Ashurst v. Martin, 9 Port.
566.

6 Burd y. Smith, 4 Dall. 76.

7 Hennessey v. Western Bank, 6 W. &. 8. 300.

® Gordon vy. Cannon, 18 Gratt. 387.

° Maennel v. Murdock, 13 Md. 164; Gordon v Cannon, 18 Gratt.
387.

0 Rankin y. Lodor, 21 Ala. 380.
440 ASSIGNMENTS EXACTING RELEASES.

The property may be delivered in specie to the cred-
itors at prime cost, for when a common price is fixed as
a measure of distribution, it is immaterial at what it is
put, provided the actual value is not more than
adequate to satisfaction in full,’ and the question
of prime cost may be left to be settled by the
assignee? No provision can be made in favor of
creditors who have released under a prior assign-
ment.?

Tur RELEASE—The form of the release may be pre-
scribed, for the creditor is a purchaser of his preference
and must take it on the debtor’s terms* The deed
may provide for the release of sureties.’ It is not neces-
sary that the creditors should assent before the deed is
recorded. One partner is competent in his own name
or in the name of the firm to release a debt, and for the
game reason he may enter into a composition and exe-
cute an assignment and it will release the debt. A sig-
nature and sealing in the name of the firm with a single
seal is good and valid to release the debt and bind the
rights of the firm.’

When the taint which avoids the deed is apparent
on the face of the instrument, a release is made with
full knowledge of the fraud and does not give it valid-
ity. Such a deed, however, is not binding upon the
creditors who execute releases until it is declared void
by a competent court. As the deed is void, the con-

 

* Bayne v. Wylie, 10 Watts, 309.

* Bayne v. Wylie, 10 Watts, 309.

* Nightingale v. Harris, 6 R. I. 321.
4 Bayne v. Wylie, 10 Watts, 309.

* Bank y. Cox, 6 Me. 395.

° Haven v. Richardson, 5 N. H. 113.
" Halsey v. Whitney, 4 Mason, 206.
8 In re Wilson, 4 Penn. 430.
ASSIGNMENTS EXACTING RELEASES. 441

sideration upon which the releases are executed wholly
fails, and the creditors who execute them may, with the
consent of the debtor obtain judgment upon their origi-
nal debts, lay an attachment in the hands of the assignee
and hold the fund against a subsequent attachment
laid by a creditor who does not execute a re-
lease.

 

* Insurance Co. v. Wallis, 23 Md. 173.
CHAPTER XVI.

HOW FAR A FRAUDULENT TRANSFER IS VOID.

GoopD BETWEEN parTres.—The statute was designed
solely to protect the rights of creditors, and, conse-
quently, it renders a fraudulent transfer void only as
against them, and makes no provision whatever in re-
gard to its effect between the parties. This is the effect
of the word “only.” This word was inserted to restrict
the broad provisions of the statute to the rights which
the legislature designed to protect, and thus left the rel-
ative rights of the parties to the provisions of the com-
mon law.’ <A conspiracy to defraud creditors is an
offence against good morals, common honesty, and sound
public policy, for it is a let and hindrance to the due
course and execution of law and justice, and tends to
overthrow all true and plain dealing, bargaining and
chevisance between man and man without which no
commonwealth or civil society can be maintained or
continued. It is, therefore, a proper case for the appli-
cation of the maxim “ Jn pari delicto melior est conditio
defendentis.” Porro autem si et dantis et excipientis
turpis causa sit, possessorem potiorem esse et ideo rep-
etitionem cessare.”

The principle that a collusive contract binds the

 

* Nellis v. Clark, 4 Hill, 424; s.c, 20 Wend. 24.
* Dig. Lib. 12 Tit. 5 (C.) 8.
FRAUDULENT TRANSFER. 443

parties to it is a principle which commends itself no
less to the moralist than to the jurist, for no dictate of
duty calls on a judge to extricate a rogue from his own
toils. On any other principle a knave might gain but
could not lose by a dishonest expedient, and induce-
ments would be furnished to unfair dealing if the courts
were to repair the accidents of an unsuccessful trick. It
is, therefore, in accordance with a wise and liberal policy
which requires the consequences of a fraudulent experi-
ment to be made-as disastrous as possible, that a fraudu-
lent grantee is allowed to retain the property, not for
any merit of his own, but for the demerit of his con-
federate.| The law endeavors to environ a debtor with
all possible perils, and make it appear that honesty is
the best policy.’

BInDs GRANTOR AND HIS REPRESENTATIVES.—A fraudu-
lent transfer is good as against the grantor,’ his heirs,*

 

1 Stewart v. Kearney, 6 Watts, 453; Falconer v. Jones, 3 Dev. 334.

? Murphy v. Hubert, 16 Penn. 50.

3 Stewart v. Iglehart, 7 G. & J. 182; Freeman v. Sedgwick, 6 Gill. 28;
Phettiplace v. Sayles, 4 Mason, 312; Canton v. Dorchester, 8 Cush. 525;
Terrell v. Imboden, 10 Leigh, 321; Simpson v. Graves, Riley Ch. 232;
Gifford v. Ford, 3 Vt. 5382 ; Hartley v. M’Annulty, 4 Yeates, 95; Stewart
y. Dailey, 6 Litt. 212; Chessman vy. Exall, 6 Exch. 841; Sumner y. Murphy,
2 Hill, (8S. C.) 488; Leshey v. Gardner, 3 W. & 8. 314; Newell v. Newell,
34 Miss. 385; Williams v. Avent, 5 Ired. Eq. 47; Tuesley v. Robinson, 103
Mass. 558; Dale v. Harrison, 4 Bibb. 65; Byrd vy. Curlin, 1 Humph. 466;
Noble v. Noble, 26 Ark. 317,

* Getzler v. Saroni, 18 Ill. 511 ; Cushwa v. Cushwa, 5 Md. 44; Dan-
zey v. Smith, 4 Tex. 411; Kimball v. Eaton, 8 N. H. 391; Jewell v.
Porter, 31 N. H. 34; Jackson y. Garnsey, 16 Johns. 189; Ober v. Howard,
11 Mo. 425; Stewart v. Ackley, 52 Barb. 283; Dearman v. Radcliffe, 5
Ala. 192; Reichart v. Castator, 5 Binn. 109; Jackson v. Dutton, 3 Har-
ring. 98; Barton v. Morris, 15 Ohio, 408; Trempner vy. Barton, 18 Ohio,
418; Church vy. Church, 4 Yeates, 280; Laney v. Laney, 2 Ind, 196;
McLaughlin v. McLaughlin, 16 Mo, 242; Lokerson y. Stillwell, 2 Beasley,
357; Anderson y. Rhodus, 12 Rich. Eq. 104; Gillespie v. Gillespie, 2
Bibb. 89; Horner v. Zimmerman, 46 Ill. 14.
444 FRAUDULENT TRANSFER.

executors, administrators,’ agents,’ parties claiming un-
der him,’ and his vendees and grantees.” A fraudu-

1 Dorsey v. Smithson, 6 H. & J. 61; Welsh v. Bekey, 1 Penna. 57 ;
Orlabar v. Harwar, Comb. 348 ; Odronaux y. Helie, 3 Sandf. Ch. 512;
Anderson v. Dunn, 19 Ark. 650; Eubanks v. Dobbs, 4 Ark. 173; Howell
v. Edmonds, 47 Ill. 79.

2 Hawes y. Leader, Yelv. 196 ; s. c. Cro. Jac. 270; Thomas v. Soper, 5
Munf. 28 ; Kinnemon v. Miller, 2 Md. Ch. 407; King v. Clark, 2 Hill Ch.
611; Coltraine v. Causey, 3 Ired. Eq. 246; Thomas v. Soper, 5 Munf. 28;
Cocke v. Bromley, 6 Munf. 184; Martin v. Martin, 1 Vt. 91 ; Dunbar vy.
McFall, 9 Humph. 505; Choteau v. Jones, 11 Ill. 800; Peaslee v. Barney, 1
Chip. 331; Bank v. Burke, 4 Blackf. 141; McLaughlin v. McLaughlin, 16
Mo. 242; Avery v. Avery, 12 Tex. 54; Connell y. Chandler, 13 Tex. 5; Crosby
v. De Graffenreid, 19 Geo. 290; Beale v. Hall, 22 Geo. 431; Winn vy. Bar-
nett, 31 Miss. 653; Gully v. Hull, 31 Miss. 20; George v. Williamson, 26
Mo. 190; Brown v. Finley, 18 Mo. 375; Jordan vy. Fenno, 13 Ark. 593 ;
Lassiter vy. Cole, 8 Humph. 621; Adams vy. Broughton, 13 Ala. 731;
Moore vy. Minerva, 17 Tex. 20; Moody v. Fry, 3 Humph. 567; Dennison
v. Ely, 1 Barb. 610; Osborne v. Moss. 7 Johns, 161; Contra, Buehler vy.
Gloninger, 2 Watts, 226; Stewart v. Kearney, 6 Watts, 453; Williams v.
Williams, 34 Penn. 312; Freeman v. Burnham, 36 Conn. 469; Everett v.
Read, 3.N. H. 55 ; Kingsbury v. Wild, 3 N. H. 30; Brownell v. Curtis, 10
Paige, 210; Babcock v. Booth, 2 Hill, 183; Caswell v. Caswell, 28 Me.
232 ; Morris v. Morris, 5 Mich. 171; Holland v. Cruft, 20 Pick. 321;
Drinkwater vy. Drinkwater, 4 Mass. 354; Norton v. Norton, 5 Cush. 524;
Gibbons v. Peeler, 8 Pick. 254; Welsh v. Welsh, 105 Mass. 385; Sullice v.
Gradenigo, 15 La. An. 582; Hunt v. Butterworth, 21 Tex. 183; Allen v.
Allen, 18 Ohio St. R. 234; Allen vy. Mower, 17 Vt. 61; Love v. Mickals, 11
Ind. 227; McLane v. Johnson, 43 Vt. 48; Abbott v. Tenney, 18 N. H. 109.
The right of executors and administrators to impeach a fraudulent convey-
ance when the estate is insolvent is conferred by statute in Massachusetts,
Vermont, New Jersey, North Carolina, Wisconsin, Michigan, Ohio, Indiana,
Louisiana, New York, and Texas, and several of the above cases are upon
those statutes. It was held in the following cases that property fraudulent-
ly conveyed was assets in the hands of the executor ; Shears v. Rogers, 3 B.
& A, 362; Anon, 2 Rol. Rep. 173; Bethel v. Stanhope, Cro. Eliz. 810; Anon,
Cary, 25; Smith vy. Pollard, 4 B.Mon. 66. Where the personal representa-
tive proceed under a statute or otherwise, he can only impeach a transfer
when the estate is insolvent; Wall v. Proy. Inst. 8 Allen, 96; Hess v. Hess,
19 Ind, 238; Pringle v. Pringle, 59 Penn. 281.

* Newson vy. Douglass, 7 H. & J. 417; Owen v. Dixon, 17 Conn. 492.

* Moseley v. Moseley, 15 N. Y. 384; Wright v. Wright, 2 Litt. 8;
Roane v. Vidal, 4 Munf. 187; Neeley v. Wood, 10 Yerg. 486; Douglas v.
Dunlop, 10 Ohio, 162; McClesky v. Leadbetter, 1 Kelly, 551; Ellis v.
McBride, 27 Miss, 155.

* Bull vy, Harris, 18 B. Mon. 195; Doolittle vy. Lyman, 44 N. H. 608;

 
FRAUDULENT TRANSFER. 445

lent receipt to a person who owes money to the debtor
is as binding as any other transfer If the property is
transferred by a deed with covenant of warranty, and
‘the debtor subsequently purchases the property at a sale
under an execution against him, the title thus obtained
enures to the benefit of the fraudulent grantee, and the
debtor® and parties purchasing from him with notice
of the prior transfer,’ are estopped by the covenant from
denying or resisting the title of the fraudulent grantee.
The debtor’s executor, however, may purchase the
property after a sale, and will obtain a good title.*

Exercurory contracts.—The same principles of.
policy which require that a fraudulent transfer shall
be held valid as between the parties, also demand that
no aid or relief shall be granted for the enforcement of
any agreement arising out of a fraudulent transaction.
The suppression of fraud is far more likely in general
to be accomplished by leaving the parties without rem-
edy against each other, and thus introducing a prevent-

 

Vanzant v. Davies, 6 Ohio St. R. 52; Marston y. Brackett, 9 N. H. 336;
Foster v. Walton, 5 Watts, 378; Coppage v. Barnett, 34 Miss. 621 ; Long
v. Wright, 3 Jones (N. C.), 290 ; Stevens v. Morse, 47 N. H. 532; Greg-
ory v., Haworth, 25 Cal. 653; Bayless v. Elean, 1 Cold. 96; Lawton vy.
Gordon, 34 Cal. 36; Fowler y. Stoneum, 11 Tex. 478; Hubbs v. Brock-
well, 3 Sneed, 574 ; Eddins v. Wilson, 1 Ala. 237; Douglas v. Dunlap, 10
Ohio, 162; Garrison vy. Brice, 8 Jones (N. C.), 85; vide Lewis v. Castleman,
27 Tex. 407; Plummer y. Worley, 13 Ired. 423; Ingles v. Donalson, 2
Hay (N. C.), 57; Searcy v. Carter, 4 Sneed, 271; Mason v. Baker, 1 A. K.
Marsh. 208; Lewis v. Love, 2 B. Mon. 345; Cox y. Jackson, 6 Allen, 108 ;
Wyman v. Brown, 50 Me. 139; Newsom v. Lycan, 3 J. J. Marsh. 440; El-
liott v. Horn, 10 Ala. 348 ; Lewis v. Caperton, 8 Gratt. 148 ; McGuire y.
Miller, 15 Ala. 894; Beall v. Williamson, 14 Ala. 55,

? Sickman y. Lapsley, 13 8. & R. 224.

? Dunbar v. McFall, 9 Humph, 505; Trempner yv. Barton, 18 Ohio, 418;
Gibbs v. Thayer, 6 Cush. 30.

* Perry v. Calvert, 22 Mo. 361.

‘Smith v. Pollard, 4 B. Mon. 66.
446 FRAUDULENT TRANSFER.

ive check naturally connected with a want of confidence
and a sole reliance upon personal honor. Any other
doctrine would, moreover, destroy the rule itself, for
parties could evade it by means of an agreement made
at the time of the transfer. It is upon these principles
that the maxim ex turpi causa non actio oritur is found.
ed. Pacta que contra leges et constitutiones vel contra
bonos mores sunt, nullam vim habere indubitati juris
est.

Equity WILL NOT ENFORCE AGREEMENTS.— When-
ever a party to a fraud applies to a court of equity, the
reasons for witholding relief are much stronger, for he
who seeks equity must have an honest and just claim.
Equity, therefore, never decrees a specific performance
of an agreement made by the fraudulent grantee to re-
convey the property to the debtor. The violation of
such an agreement is no fraud. Hraus non est fallere
Jallentem’” For the same reason the trusts in a fraudu-
lent deed can not be enforced.*

 

1 Dig. Lib. 2 Tit. 8, § 6.

* Anon, Cary, 18; Gaylord v. Couch, 8 Day, 223 ; Freeman v. Sedg-
wick, 6 Gill. 28; Canton v. Dorchester, 8 Cush. 525; Sweet v. Tinslar, 52
Barb. 271 ; Stewart v. Iglehart, 7 G. & J. 182 ; Wright v. Wright, 2 Litt.
8; Mulford v. , 2 Hay, 244; James v. Bird, 8 Leigh, 510; Smith v.
Elliott, 1 Pat. & H. 307; Hollis v. Morris, 2 Harring. 128; Payne v. Bru-
ton, 10 Ark. 53; Jones v. Gorman, 7 Ired. Eq. 21; Peacock y. Terry, 9
Geo. 137; Galt v. Jackson, 9 Geo. 151; Ellington v. Currie, 5 Ired. Eq. 21;
Britt v. Aylett, 11 Ark. 475; Lee v. Lee, 19 Mo. 420; Grider v. Graham,
4 Bibb. 70; Baldwin v. Cawthorne, 19 Ves. 166; Franklin v. Stagg, 22
Mo. 193; Martin v. Martin, 5 Bush. 47; Roane vy. Vidal, 4 Munf. 187 ;
Joyce v. Joyce, 5 Cal. 161; Jones vy. Read, 8 Dana. 540; St. John v. Bene-
dict, 6 Johns, Ch, 111; Baldwin v. Campfield, 4 Halst. Ch. $91; Marlatt
v. Warwick, 4 C. E, Green, 448; Lokerson v. Stillwell, 2 Beasley, 357 ;
Hershey v. Whiting, 50 Penn. 240; Holliday v. Holliday, 10 Iowa, 200;
Eyre v. Eyre, 4 C. E. Green, 42; Stephens v. Harrow, 26 Iowa, 458; ride
Taylor v. Weld, 5 Mass. 109; Barnard y. Sutton, 12 L. J. Ch. (N. 8.) 312;
Smith v. , 2 Hay (N. C.), 229.

* Stewart v. Ackley, 52 Barb. 283 ; Sweet vy. Tinslar, 52 Barb. 271;
Murphy v. Hubert, 16 Penn. 50.

 

 
FRAUDULENT TRANSFER. 447

RELIEF WHEN THERE IS FRAUD ON DEBTOR.—This
rule only applies, however, when the parties are in pari
delicto. Both parties must be equally guilty. If the
debtor does not enter into the transaction freely and
with a fraudulent purpose, then the fraud is not such
as merits the utter reprobation of a court of equity.
Where the debtor is not the originator of the fraud, but
is enticed into the transaction either through weakness
of mind,’ or the advice of his attorney,’ or creditor,’ to
whom the transfer is made, equity will grant relief, not
on account of any right in the debtor, but for the pur-
pose of preventing the perpetration of a greater fraud
by the grantee. The parties although zn delicto are not °
in pari delicto, and a remedy is given on the ground of
mula fides in the grantee and the necessity of preventing
imposition. So also if a feme covert is induced by
fraudulent practices to unite with her husband in the
conveyance of her own estate for the purpose of defraud-
ing his creditors by depriving them of a remedy against
his interest in it, she may have the transfer set aside.*

CERTAIN AGREEMENTS VALID.—If there is no valid
claim against the grantor, an agreement to reconvey
may be enforced, although the transfer is made to de-
feat an anticipated recovery in an action against him.
The statute only protects just and lawful actions, and
if he is successful in his resistance to the demand the
transfer can not be considered fraudulent, for he has a
right to shield his property from all unlawful claims.’

 

* Prewett v. Coopwood, 30 Miss. 369; Freelove vy. Cole, 41 Barb. 318;
Beale v. Hall, 22 Geo. 431; vide Smith y. Elliott, 1 Pat. & H. 307.

* Ford vy. Harrington, 16 N. Y. 285; Freelove v. Cole, 41 Barb, 318.

® Austin v. Winston, 1 H. & M. 33.

4 Stewart v. Iglehart, 7 G. & J. 132.

® Dearman v. Dearman, 4 Ala. 521; Brady v. Ellison, 2 Hay (N. C.),
348 ; Smith v. Bowen, 2 Hay (N. C.), 296; Baker v. Gilman, 52 Barb. 26;
Contra, Tantum y. Miller, 3 Stockt. 551.

4
448 FRAUDULENT TRANSFER.

An arrangement made in good faith, by which a party
purchases the debtor’s property at a sale under an exe-
cution with a promise to reconvey to the debtor upon
the payment of the purchase money may be enforced.’
If the parties voluntarily rescind the fraudulent convey-
ance a subsequent arrangement between them in regard
to the same property will not be tainted by the pre-
vious fraud.” If the fraudulent transfer consists of a
mortgage, the debtor may file a bill to redeem the
property from its operation.’

RiegHts oF GRANTEES.—If the transfer is made to
two grantees, an agreement between them whereby one
purchases the property under a judgment, with the un-
derstanding that the title shall remain in the other, can,
not be enforced when it is a part of the original fraud-
ulent scheme.* An agreement for a division, however,
which has been acted upon, and upon the faith of
which expenditures have been made, may be enforced.®
Tf the fraudulent grantee executes the secret fraudulent
trust under which he received the transfer, one cestua
que trust can not defeat the full execution of the trust
nor appropriate the exclusive benefit to himself by re-
lying upon the fraudulent intent with which the trans-
fer was made.® Equity will not decree a sale at the
instance of one tenant in common when the land is in-
capable of partition, for the hazards of an unsound title
should remain with those who have taken it.”

 

1 Fluharty v. Beatty, 4 W. Va. 514.

° Parker v. Tiffany, 52 Ill. 286, Matthews y. Buck, 43 Me. 265.
8 Smith v. Quartz Mining Co. 14 Cal. 242.

4 Waller v. Mills, 8 Dev. 515.

®° Proseus vy. McIntyre, 5 Barb, 424.

° Turner v. Campbell, 3 Gratt. 77; 8.c.1P. & H. 256.

™ Haydon v. Denslow, 27 Conn. 836.
FRAUDULENT TRANSFER. 449

AcTIONS AT LAW UPON EXECUTORY conTRacts.—The
principles upon which a specific performance of an
agreement to reconvey is refused apply also to an action
at law upon such an agreement, or upon a note given
as the consideration for a fraudulent transfer. There
is a marked and settled distinction between executory
and executed contracts of a fraudulent character. What-
ever the parties to an action have executed for fraudu-
lent purposes, the law refuses to lend its aid to enable
either party to disturb. Whatever the parties have
fraudulently contracted to execute, the law refuses to
compel the contractor to execute or pay damages for not
executing. In both cases it leaves the parties where it
finds them.’ If a note constitutes the consideration for
a fraudulent transfer, it will not be rendered valid by in-
cluding an additional honest consideration, for the rule is
that where one part of an entire contract is void the whole
is void.” The maker may also show in an action upon
such a note that the property has been taken away by
the grantor’s creditors,’ but such a defence would not
be good against a bona fide holder* A third person
who is innocent of the fraud may enforce a promise

 

! Nellis v. Clark, 4 Hill, 424; s.c. 20 Wend. 24: Smith v. Hubbs, 10
Me. 71 ; Johnson vy. Morley, Hill & D. Sup. 29; Niver v. Best, 10 Barb.
369; Walker v. McConnico, 10 Yerg. 228; Norris v. Norris, 9 Dana, 317 ;
Roden y. Murphy, 10 Ala. 804; Walton v. Bonham, 24 Ala. 513; Harvin
y. Weeks, 11 Rich. 601; Welby v. Armstrong, 21 Ind. 489; Powell v. In-
man, 8 Jones (N. C.), 436 ; Church v. Muir, 33 N. J. 828; Contra, Findley
vy. Cooley, 1 Blackf. 262; Sherk v. Endress, 3 W. & 8, 255; Telford v.
Adams, 6 Watts, 429; Moore v. Thompson, 6 Mo, 353 ; Dyer v. Homer,
22 Pick. 253; Conner vy. Carpenter, 28 Vt. 237 ; Carpenter v. McClure, 39
Vt. 9; Harvey v. Varney, 98 Mass. 118; Springer v. Drosch, 32 Ind.
486.

2 Niver v. Best, 10 Barb. 369.

2 Dyer v. Homer, 22 Pick. 253 ; Bailey v. Foster, 9 Pick. 139.

‘ Gregory v. Harrington, 33 Vt, 241.

29
450 FRAUDULENT TRANSFER.

made to him for a valuable consideration, although it:
grew out of the fraudulent transaction.’

Actions aT LAW BY GRANTEE.— A fraudulent grantee
has a legal title which he may enforce in an action at
law, for the debtor and those claiming under him can
not set up the fraud to avoid the transfer.” If the
debtor, after the property has once been delivered, re-
covers the possession, the grantee may have the aid of
the law to regain it.2 The grantee may not only recover
the property, but if that has been converted by the
debtor to his own use, he may recover the value.*
When a mortgage is fraudulent, the mortgagee may en-
force his legal right to the property by an action at
law. <A fraudulent grantee,’ or mortgagee,’ however,
can not enforce any claim to or against the property in
a court of equity. The only remedy is at law. The
only exception to this rule seems to be in a case where
the grantee is deprived of his remedy at law by some
subsequent act of the debtor.® If the grantee executes.

 

* Moore v. Meek, 20 Ind. 484.

? Cushwa v. Cushwa, 5 Md. 44; Anderson vy. Dunn, 19 Ark. 650; Ellis.
vy. Higgins, 32 Me. 3£; Murphy v. Hubert, 16 Penn. 50; Broughton v.
Broughton, 4 Rich. 491; Jackson v. Garnsey, 16 Johns. 189 ; Gifford v.
Ford, 5 Vt. 532; Starke v. Littlepage, 4 Rand, 368 ; Daniels v. Fitch, 8
Penn. 495; Epperson v. Young, 8 Tex. 185; McClenny v. Floyd, 10 Tex.
159; Gillespie v. Gillespie, 2 Bibb. 89.

® Rochelle v. Harrison, 8 Port. 351.

4 Hoeser v. Kraeka, 29 Tex. 450.

> Fitzgerald v. Forristal, 48 Ill. 228; Stores v. Snow, 1 Root. 181; Gif-
ford vy. Ford, 5 Vt. 532; Williams v. Williams, 34 Penn. 312; Bibb v.
Baker, 17 B. Mon. 292; Bowman v. McKleroy, 14 La. An. 587.

® Mason v. Baker, 1 A. K. Marsh. 208; Caston v. Ballard, 1 Hill, 406;
vide Greenwood v. Coleman, 34 Ala, 150.

7 Shiveley v. Jones, 6 B. Mon. 274; Wearse v. Peirce, 24 Pick. 141:
Demerritt v. Miles, 22 N. H. 523; Westfall v. Jones, 23 Barb. 9; Jones v-
Comer, 5 Leigh, 350; Miller v. Marckle, 21 Il. 152; Brookover v. Hurst,
1 Met. (Ky.), 665.

® Baldwin v. Cawthorne, 19 Ves. 166.
FRAUDULENT TRANSFER. 451

the contract to reconvey he will be bound, for the law
will not then lend its aid tohim.! When the re-con-
veyance is in apparent execution of the fraudulent
trust for the purpose of a sale, the fraudulent grantee
can not claim the proceeds. One grantee is not respon-
sible to another for property which he has returned to
the debtor.’

GRANTEE CAN NOT ENFORCE EXECUTORY CONTRACTS.
—The principles of the law which prohibit any action
upon a fraudulent executory contract apply equally to
the grantee. A court of equity will not enforce an
agreement to surrender a note, given as the consider-
ation, upon a re-conveyance of the property.* No action
at law can be maintained upon a note given with a
fraudulent mortgage,’ or upon a covenant of warranty
to recover damages when the property has been taken
by the grantor’s creditors.’

GoopD AGAINST THIRD partiEs—The title of a
fraudulent grantee is not only good against the debtor
but it is also good against all parties except creditors
and their representatives. It is voidable only at the
suit of creditors, and if no creditor interposes and com-
plains, the transfer is as binding and effectual to pass
the title as if made with the best intents and for the
most innocent and commendable purposes.’ The estate
passes foties quoties by every subsequent conveyance,

 

* Dearman v. Radcliffe, 5 Ala. 192; Fargo v. Ladd, 6 Wis. 106 ; White
v. Brocaw, 14 Ohio St. R. 339. ;

? Fargo v. Ladd, 6 Wis. 106.

5 Riddle v. Lewis, 7 Bush. 193.

* Bryant v. Mansfield, 22 Me. 360; Servis v. Nelson, 1 McCarter, 94.

* Brookover v. Hurst, 1 Met. (Ky.) 665.

° Surlott v. Beddow, 3 Mon. 109 ; Rea v. Smith, 19 Wend. 293,

7 Hall y. Stryker, 9 Abb. Pr. 842; s. c. 29 Barb. 105.
452 FRAUDULENT TRANSFER.

and is good against all the world except creditors in
the possession of every successive grantee, even with
notice of the fraud. The title is good against the
debtor’s tenant,’ a prior mortgagee,’ third parties who
are not creditors,’ mere wrong doers,‘ the grantee’s own
tenant, or bailee,® purchasers from the grantee so long
as they refuse to surrender the property,’ and stock-
holders when the transfer is made by a corporation.*
A fraudulent assignee of a chose in action has a good
title as against the party from whom the money is due
and can enforce the payment.’

 

1 Steadman vy. Jones, 65 N. C. 388; Griffin v. Wardlaw, Harp. 481 ;
Moseley v. Moseley, 15 N. Y. 334; Cushwa v. Cushwa, 5 Md. 44.

2 Hodson vy. Treat, 7 Wis. 283; Stone v. Locke, 46 Me. 445; Stone v.
Bartlett, 46 Me. 438 ; Fetrow v. Merriwether, 53 Ill. 275.

* Kid v. Mitchell, 1 N. & M. 334; Wade v. Green, 3 Humph. 547;
Fowler v. Lee, 4 Munf. 873; Shadbolt v. Bassett, 1 Lans. 121; McGuire v.
Faber, 29 Penn. 4386; Anderson vy. Bradford, 5 J. J. Marsh. 69; Clute vy.
Fitch, 25 Barb. 428; Van Etten vy. Hurst, 6 Hill, 311; Johnson v. Jeffries,
30 Mo. 423 ; Hatch v. Bates, 54 Me. 136; Damon v. Bryant, 2 Pick. 411;
Glassner v. Wheaton, 2 E. D. Smith, 352; Puryear v. Beard, 14 Ala. 121;
Bessey v. Wyndham, 6 A. & E. (N.58.), 166; Schettler v. Brunette, 7
Wis. 197; Hall v. Snowhill, 2 Green, 8; Paige vy. O’Neal, 12 Cal. 483;
Boyd v. Brown, 17 Pick. 453; McGuire v. Faber, 25 Penn. 486; Hopkins
y. Webb, 9 Humph. 519; Johnson v. Elliott, 26 N. H. 67; Burgett v.
Burgett, 1 Ohio, 219; Randall v. Phillips, 8 Mason, 378; Lenox y. No-
trebe, 1 Hemp. 251; Simon y. Gibson, 1 Yeates, 291 ; Woodman v. Bod-
fish, 25 Me. 317; Hill v. Pine River Bank, 45 N. H. 300.

* Worth v. Northam, 4 Ired. 102; Thompson v. Moore, 86 Me. 47; The
Lion, 1 Sprague, 40; Costenbader v. Shuman, 3 W. & 8. 504; Remington
v. Bailey, 18 Wis. 332; Pierce v. Hasbrouck, 49 Ill. 26.

* Russell v. Fabyan, 27 N. H. 529; s. c, 34 N. H. 218.

® Hendricks v. Mount, 2 South. 738; Fairbanks v. Blackington, 9 Pick.
93. ;

"La Crosse R. R. Co. v. Seeger, 4 Wis. 268; Sharp v. Jones, 18 Ind.
314; Campbell v. Erie R. R. Co. 46 Barb. 540.

® Ashurst’s Appeal, 60 Penn. 290.

* Pickens vy. Hathaway, 100 Mass. 247 ; Ogden v. Prentice, 83 Barb.
160; Morey v. Forsyth, Walk. Ch. 465 ; Hamilton y. Gilbert, 2 Heisk, 680;
Rohrer y. Turrill, 4 Minn, 407.
FRAUDULENT TRANSFER. 453

CREDITORS MUST HAVE LEGAL PRocEss.—It is com-
monly said that a fraudulent conveyance is void against
creditors, but this must be taken in a limited sense.
The law provides a mode for determining the rights of
all parties, and does not permit even a creditor to act
as a judge in his own case.’ Any other course would
jeopardize the order and harmony of society. A fraud-
ulent conveyance, moreover, does not confer any ad-
ditional rights upon creditors. They can not seize the
property of their debtor without any legal process and
appropriate it of their own accord to the satisfaction of
their demands. Neither the general principles of law
nor the particular laws which are enacted for the col-
lection of debts confer any such rights upon them.
They may cause it to be appropriated to the payment
of their debts, but they can do this only in the mode
which the law prescribes, and if they depart from that
mode their proceedings are unauthorized by law and
they thereby make themselves liable as wrong doers to
the owner of the property. Prior to the transfer they
are liable to the debtor himself. After the transfer
they are liable to the grantee, because all the rights of
the debtor in relation to the property pass to him.

Consequently the expression that a fraudulent
transfer is void against creditors simply means that the
rights of creditors as such are not, with respect to the
property, affected by such transfer, but that they may,
notwithstanding the.transfer, avail themselves of all the
remedies for collecting their debts out of the property
or its avails which the law has provided in favor of
creditors, and that in pursuing those remedies they may
treat the property as though the transfer had not been
made, that is, as the property of the debtor. The

 

* Williford v. Conner, 1 Dev. 379.
454 FRAUDULENT TRANSFER.

transfer is ineffectual to shield the property in the hands
of the grantee from the just claims of the creditors of
the grantor when those claims are prosecuted against
it in the manner pointed out by the law. His title,
however, is good against even creditors, unless they
protect themselves against him by pursuing that pre-
scribed course by which alone the property can be made
‘available for the satisfaction of debts. A creditor at
large, as it is termed, can not impeach the conveyance,
but only a creditor having some process on which the
property may be lawfully seized, and by which it is
made liable, either immediately or ultimately, to be ap-
propriated in satisfaction of his debt. "Without such
process he has no right to meddle with the property,
and if he does so he is liable to all the consequences of
an unlawful interference equally with any other
person."

If the creditor is in the possession of the property,
he can not retain it on the ground of the indebtedness
of the grantor to him,’ or set up his judgment as an
offset to the demand.? In an action against him upon a
chose in action, he can not show that an assignment of
it is fraudulent Before he can impeach the transfer,
he must have an execution, attachment, or some other

 

* Williford v. Conner, 1 Dev. 87; Hilzeim v. Drane, 10 S. & M. 556;
Owen v. Dixon, 17 Conn. 492; McGee v. Campbell, 7 Watts, 545; Dorsey
yv. Smithson, 6 H. & J. 61; Barton v. Vanheythuysen, 11 Hare, 126; s. c.
18 Jur. 344; Osborne v. Moss, 7 Johns. 161 ; Brown vy. Gilmore, 16 How.
Pr. 527; Carter v. Bennett, 4 Fla. 283 ; Pennington v. Woodall, 17 Ala.
685 ; Graser v. Stellwagon, 25 N. Y. 315; Eyrick v. Hetrick, 18 Penn.
488; Andrews v. Durant, 18 N. Y.496; Whitfield v. Whitfield, 40 Miss.
352; Green vy. Kornegay, 4 Jones (N.C.), 66.

* Dorsey v. Smithson, 6 H. & J. 61; Andrews y. Durant, 18 N. Y. 496;
Barton v. Vanheythuysen, 11 Hare, 126; s. c. 18 Jur. 344.

* Lawrence v. Bank, 35 N. Y. 820; 8, c. 3 Robt. 142.

* Ogden v. Prentice, 33 Barb. 160.
FRAUDULENT TRANSFER. 455

legal process which authorizes the seizure of the prop-
erty.| This process may be a warrant of distress,’ or
an attachment, as well as an execution. The process,
however, must be valid, and all the steps subsequent to
the seizure which are prescribed by law for the dispo-
sition of the property must be pursued. The relation
‘between the creditor, at whose instance it is issued, and
the officer who serves it, must not be sundered by such
irregularities as render the proceeding void from the
beginning.* Consequently the title of the grantee is
good against a void attachment,’ or a void levy,’ or a
levy after the return day of the writ,’ or out of the offi-
eer’s bailiwick,® or a purchaser under a void judgment,’
or a landlord who distrains before the rent is due,” or a
fraudulent judgment," or a judgment which has been
satisfied.”

 

2 Andrews v. Durant, 18 N. Y. 496; Rinchey v. Stryker, 26 How. Pr.
75; Schlussell v. Willett, 32 Barb. 615; s. c. 12 Abb. Pr. 397; sc. 22
How. Pr. 15; Tiffany v. Warren, 3% Barb. 571; 8. o. 24 How. Pr.
293.

2 Allen v. Camp, 1 Mon. 231; Frost v. Mott, 34 N. Y. 258; Rinchey v.
Stryker, 26 How. Pr. 75; Contra, Frisbie v. Thayer, 25 Wend. 396.

3 Frost v. Mott, 834 N. Y. 253; Ward v. McKenzie, 33 Tex. 297.

*Qwen v. Dixon, 17 Conn. 492; Andrews v. Marshall, 43 Me. 272;
s.c.48 Me. 26; Eaton v. Cooper, 29 Vt. 444; Wooley v. Edson, 35 Vt.
214; vide Daggett v. Adams, 1 Me. 198; Johnston v. Harvey, 2 Penna. 82;
Howland v. Ralph, 3 Johns. 20.

5 Halsey v. Christie, 21 Wend. 9; Zimmerman v. Lamb, 7 Minn, 421;
Wanamaker v. Bowes, 36 Md.

* Cleaveland v. Deming, 2 Vt. 534; Barley v. Tipton, 29 Mo. 206; Rus-
sell v. Dyer, 40 N.H. 173; Davis v. Ranson, 26 Ill. 100; Candler y. Fisher,
11 Md. 332.

7 Sheerer v. Lautzerheizer, 6 Watts, 543.

® McGee v. Campbell, 7 Watts, 545.

® Warren v. Halli, 6 Dana, 450; Carter v. Bennett, 4 Fla. 283; Hemp-
‘hill v. Hemphill, 34 Miss. 68.

10 Bvans v. Herring, 3 Dutch, 243.

4 Wilhelmi v. Leonard, 13 Iowa, 830; Hackett v. Manlove, 14 Cal. 85.

22 Chiles y. Bernard, 3 Dana, 95; Jackson v. Cadwell, 1 Cow. 622;
Sbinkle v. Letcher, 47 Ill. 216.
456 FRAUDULENT TRANSFER.

Proor OF JUDGMENT AS WELL AS EXECUTION.—
Whenever the validity of the seizure is put in contro-
versy, the creditor or the officer, as the case may be, must
establish a right to seize the property by proof which
is adequate as against the grantee, and this in the case
of an execution can only be done by the production of
the judgment as well as the writ.’ If the property is
taken upon an attachment, there must be proof not
only of the regularity of the attachment,’ but of the
demand of the creditor at whose instance the attach-
ment was issued.? This is necessary in order to estab-
lish a right to seize the property. It is not necessary
to prove the entire debt upon which the attachment
issued,* or do more than show a prima facie right to
issue the attachment without establishing the amount
due.” The parties will not be liable to the grantee if
the attachment is merely defeated by a plea of set-off.
A collusive demand, created merely for the purpose of
attacking the transfer, can not prevail against it.”

Deep By pEBtor.—A deed from the debtor does not
give the creditor any right to seize the property or any
claim upon it. As the transfer binds the debtor he

 

* High v. Wilson, 2 Johns. 46; Wright v. Crockett, 7 Mo. 125; Dam-
eron v. Williams, 7 Mo. 138; Eaton y. White, 2 Wis, 292; Paige v. O’Neal,
12 Cal. 483; Bickerstaff vy. Doub. 19 Cal. 109; Martin v. Podger, 2 W. BI.
701; s. c. 5 Burr, 2631; Hoffinan y. Pitt, 5 Esp. 22; Reed vy. Blades,
5 Taunt. 212; White v. Morris, 11 OC, B. 1015; Glave v. Went-
worth, 6 A. B. 173; Ogden v. Hesketh, 2 Car. & K. 772; Ackworth v.
Kempe, 1 Doug. 40; Luke vy. Billers, 1 Ld. Raym. 733; M’Gowan vy. Hoy,
5 Litt. 239.

* Noble v. Holmes, 5 Hill, 194; Thornburgh vy. Hand, 7 Cal. 554; Keys
v. Grannis, 3 Nev. 548.

* Sanford v. Wiggin, 14 N. H. 441; Damon v. Bryant, 2 Pick. 411;
Clute v. Fitch, 25 Barb, 428; Maley v. Barrett, 2 Sneed, 501; Currier y.
Ford, 26 Ill, 488 ; Jones v. Lake, 2 Wis. 210.

‘ Walker v. Lovell, 28 N. H. 138.

° Fuller v. Sears, 5 Vt. 527.

° Gates v. Gates, 15 Mass. 310.

* Esty v. Long, 41 N. H. 103.
FRAUDULENT TRANSFER. 457

has no title that he can transmit. In the capacity of
purchaser, the creditor obtains no rights, and in the
capacity of creditor he can only appropriate the prop-
erty towards the satisfaction of his demand by virtue
of some legal process.!. Without a lien upon the prop-
erty by virtue of some process, a creditor has no right to
intervene in a suit.’

Ratification By crepiror.—A fraudulent transfer
is merely voidable, and, consequently, is capable of con-
firmation, either by assent at the time or by asubsequent
ratification, for no onecan predicate fraud of facts which
have his assent upon a full knowledge of them. Preterea
allud sciendum est, ewm qut consentientibus creditoribus.
a fraudatore vel emit vel stipulatus est vel quid aliud
contraait, non vidert in fraudem creditorum fecisse, ne-
mo enim videtur fraudare eos qui sciunt et consentiwnt?®
Mere notice,* or acquiescence,’ is not sufficient, nor can
one creditor be affected or prejudiced by the assent of
others.6 Before there can be any binding ratification,
the creditor must have notice or knowledge of the facts
which constitute the fraud." If he has, however, been:
guilty of negligence in availing himself of information
within his reach, constructive notice may be imputed to

 

1 Haines v. Campbell, 8 Iowa, 187; Fox v. Willis, 1 Mich. 321; s. c.
‘Walk. Ch. 535; Grimsley v. Hooker, 8 Jones Hg. 41; Barton v. Vanhey-
thuysen, 11 Hare, 126 ; s.c.18 Jur. 344; Tate v. Liggatt, 2 Leigh, 84;
Contra, Frost v. Goddard, 25 Me. 414; Woodward vy. Solomon, 7 Geo.
246 ; Lee v. Brown, 7 Geo. 275.

2 Horn y. Voleano Co. 13 Cal. 62; Graser vy. Stulwagon, 25 N. Y. 315;
Williams v. Bizzell, 11 Ark. 718; Cox v. Fraley, 26 Ark. 20; Rhodes v.
Cousins, 6 Rand. 188.

> Dig. Lib. 42 Tit. 9, § 9.

4 Derry Bank v. Davis, 44 N. H. 548,

* Knauth v. Bassett, 34 Barb. 31; Jenness v. Berry, 17 N. H. 549.

° M’Allister v. Marshall, 6 Binn. 388 ; Litchfield v. Pelton, 6 Barb. 187.

7 Clark y. Rowling Hill & D. Sup. 105 ; Baldwin v. Tuttle, 23 Iowa,
66; Foulk vy. M’Farlane,1 W.& 8. 297; Van Nest v. Yoe,1 Sandf.
Ch. 4,
458 FRAUDULENT TRANSFER.

him.' If, with notice of the fraud either actual or con-
structive, he makes any agreement upon consideration
confirming the transfer, or any statement or agreement
to that effect, upon the faith of which the grantee acts
as hé would not otherwise do, or under such circum-
stances that his subsequent assertion of his rights as a
creditor, if permitted, would operate as a fraud, he will
be held to have confirmed the transfer.’ In the case of
a fraudulent assignment, if a creditor enters into any
agreement with the other creditors,’ or receives a divi-
dend under the assignment,* with notice of its character
he can not afterwards impeach it. A trustee, who is
also a creditor, is estopped from assailing the deed un-
der which he acts.° If the debtor's assignee in bank.
ruptcy demands and receives the purchase money, this
act of positive affirmance ratifies the transfer.’ The
grantor of a deed, by which property that is paid for
by the debtor is conveyed to another, can not impeach
it for fraud because he is a party to the transaction.’
A. creditor under, and by whose advice the transfer is

 

* Scott v. Edes, 3 Minn. 377.

2 Jenness v. Berry, 17 N. H. 549 ; Lane v. Lutz, 1 Keyes, 203; Johns
v. Bolton, 12 Penn. 339; Dingley v. Robinson, 5 Me. 127 ; Seymour v.
Lewis, 2 Beasley, 439 ; Tate v. Liggatt, 2 Leigh, 84; Okie v. Kelly, 12
Penn, 323 ; Irwin v. Longworth, 20 Ohio, 581; Renick v. Bank, 8 Ohio,
529; Myers v. Leinster, 7 Jr. Eq. 146.

* Rapalee v. Stewart, 27 N. Y. 310; Bull v. Loveland, 10 Pick. 9;
Fiske v. Carr, 20 Me. 301; Jones v. Dougherty, 10 Geo. 273 ; Burrows v.
Alter, 7 Mo. 424 ; vide Hurd v. Silsbee, 10 N. H. 108,

‘ Adlum y. Yard, 1 Rawle, 163; Lanahan vy. Latrobe, 7 Md. 268 ; Scott
v. Edes, 3 Minn. 377 ; Geise v. Beall, 3 Wis. 867 ; Richards v. White, 7
Minn. 345 ; Whitney v. Freeland, 26 Miss. 481 ; Gutzwiller v. Lackman,
23 Mo. 168 ; vide Vose v. Hoicomb, 31 Me. 407; Crutchfield vy. Hudson, 23
Ala. 393.

* Strong v. Willis, 3 Fla. 124.

° Okie v. Kelly, 12 Penn. 323.

"Phillips v. Wooster, 36 N. Y. 412; sc. 8 Abb. Pr. (N. 8.) 475;
French v. Mehan, 56 Penn. 286.
FRAUDULENT TRANSFER. 459

made is, for the same reason, held to assent to, and to
be bound by it,’ especially when he is an active partici-
pant in the fraud?

CREDITOR’s KNOWLEDGE OF THE FRAUD.—A creditor
who receives a note given as a consideration of the
transfer, with full knowledge of the facts, can not after-
wards impeach it.2 Although he did not have notice at
the time of taking the note, yet if he retains or uses it
after he has acquired such notice, he is bound the same
as if he had acted on previous information.* <A creditor
who has trusted his debtor, after being fully informed
by the latter that he has put his property out
of his hands by a conveyance valid as between him and
his grantee, though voidable as to existing creditors,
can never claim that the conveyance is fraudulent and
void as to him on account of such indebtedness.’ If an
assignment is assented to by all the creditors, it can not
be attacked by subsequent creditors, for the former
have the right to elect to take the provision made for
them although the assignment is fraudulent and have a
prior equity to be paid out of the property assigned.°

Esroppen.—Before a creditor can be held to be
estopped by any act of his from impeaching the transfer
there must be a benefit conferred upon him, or a dis-
advantage suffered by the grantee such as can bind the
conscience of the former or clothe his act with the char-

 

* Olliver v. King, 8 D. M. & G. 110; s. c. 55 Eng. L. & Eq. 312 ;
8.c. 26 L. J. Ch. 427; 8.0. 2 Jur. (N. 8.) 812; 5. c. 1 Jur. (N. 8.) 1067 ;
Pell v. Tredwell, 5 Wend. 661; Contra, Waterhouse v. Benton, 5 Day, 136.

? Smith v. Espey, 1 Stockt. 160.

* Butler v. O’Brien, 5 Ala. 316 ; Furness v. Ewing, 2 Penn. 479.

* Butler v. O’Brien, 5 Ala. 316.

* Baker v. Gilman, 52 Barb. 26.

* Ames vy. Blunt, 5 Paige, 13; Therasson v. Hickok, 37 Vt. 454; Ogden
v. Prentice, 33 Barb. 160.
460 FRAUDULENT TRANSFER.

acter of a contract.! A mere provision in an assignment
in favor of a creditor does not, of itself, prevent him
from assailing it, for an assignment, when executed, must
bind all or none of the creditors? Merely laying an
attachment in the hands of the grantee does not con-
firm the transfer,® but a creditor can not seize the goods
and also garnish the grantee.* When the money raised
by a sale under a prior execution is appropriated by
law to a subsequent execution, a creditor who receives
it innocently and ignorantly is not thereby pre-
vented from attacking the sale,> but if he accepts
the money with full knowledge of all the facts, he
thereby ratifies the sale and waives all objection to
it.®

To operate as an estoppel, the act of the creditor
must be intended to bea direct recognition and acknowl.
edgement of the validity of the transfer, and not the
result of a mere collateral arrangement.’ If a debtor
sells his goods in consideration of an annuity payable
to his wife, and a policy of insurance, a creditor who
accepts of the policy as a security for his debt will not
be estopped from attémpting to have the annuity ap-
propriated to the satisfaction of his demand.’ If other
creditors proceed to sell the property, the transfer is
nullified as to all, and a creditor who has assented to it
may become a purchaser at the sale, and as his title

 

? Hayes v. Heidelberg, 9 Penn. 203,

? Smith v. Howard, 20 How. Pr. 121; O’Neil v. Salmon, 25 How. Pr.
246.

3’ M’Kee y. Gilchrist, 3 Watts, 230; Craver v. Miller, 65 Penn.
456.

* Clapp v. Rogers, 38 N. H. 485.

® Foulk v. M’Farlane, 1 W. & 8, 297.

° Kilby v. Haggin, 3 J. J. Marsh. 208.

7 Hayes v. Heidelberg, 9 Penn. 2038.

* French y, French, 6 D. M. & G. 95; 8. c. 25 L. J. (Ch.) 612.
FRAUDULENT TRANSFER. 461

will be derived from a source superior to the transfer,
he will take the property discharged from it.’

CREDITOR MUST RETURN BENEFIT.—A creditor who
has received a benefit under a fraudulent transfer must
return it before he can impeach the transaction. He
may have his election either to confirm the transfer or
attempt to avoid it, but he cannot do both. By receiv-
ing a benefit under the transfer claimed to be fraudu-
lent, he thereby affirms it so as to be estopped from
setting up the fraud. If he desires to rescind, he must
rescind in toto. By receiving a benefit under the
transfer he thereby becomes pro tanto a party to, and a
participant in, the fraudulent transaction, from which
he must show himself wholly clear before he is entitled
to be heard to impeach it? If a creditor accepts
a part of the property which is subsequently taken
from him, he may assail the transfer? If a creditor is
estopped, the estoppel will extend to a party who pur-
chases under his judgment.‘

TITLE IN DEBTOR IN CONTEMPLATION OF LAw.—The
theory of the law is that a fraudulent transfer passes
nothing as against creditors. For all purposes of ap-
propriating the property to the satisfaction of their de-
mands, the property is deemed to be still vested in the
debtor.” The legal as well as the equitable title still

 

? Hayes v. Heidelberg, 9 Penn. 203; vide McWhorter v. Huling, 3 Dana,
348.

? Lemay v. Bibeau, 2 Minn. 291; Scott v. Edes, 3 Minn. 377; Butler
v. O’Brien, 5 Ala, 316 ; in re Wilson, 4 Penn. 430 ; Wills v. Munro, cited
43 Barb. 584.

® Lee v. Hunter, 1 Paige, 519.

4 Smith v. Espey, 1 Stockt. 160.

© Pratt v. Wheeler, 6 Gray, 520; Gooch’s Case, 5 Co. 60; Austin v.
Bell, 20 Johns. 442; Lowry v. Orr, 1 Gilman, 70 ; Marston v. Marston, 54
Me. 476; Angier v. Ash, 26 N. H. 99; Scully v. Kearns, 14 La. An. 436;
Gleises v. McHatton, 14 La. An. 560.
462 FRAUDULENT TRANSFER.

remains in him, and creditors who obtain judgments
against him afterwards acquire liens upon his property,
wherever such are given by the law, according to the
dates of their respective judgments in the same manner
precisely as if no such transfer had ever been made.
The rights of the grantee’s creditors are no higher than
those of the grantee himself: They must claim through
him and not above or beyond him. Consequently he
has no interest upon which the lien of judgments
against him can attach so as to be entitled to priority
over the liens of judgments against his grantor.’ The
grantee’s assignee in bankruptcy has merely a defeas-
ible title, subject to be defeated by the creditors of the
grantor.2 But a sale under an execution against the
grantee will pass a good title as against the debtor.’ If
the creditors of the grantor sell the property under
execution, it is not afterwards liable to the creditors of
the grantee.” It has, on the other hand, been held that
after an actual seizure by the creditors of the grantee,
the property can not be reclaimed by an officer acting
under an execution against the grantor.’ An assignee
claiming under a fraudulent assignment made by a firm
does not represent the partnership creditors, and can
not interpose in their behalf to prevent the property

 

’M’Kee v. Gilchrist, 3 Watts, 230; Jacoby’s Appeal, 67 Penn. 434;
Hoffman’s Appeal, 44 Penn. 95; Beekman’s Appeal, 38 Penn.
885; Sanders v. Wagonseller, 19 Penn. 248; Minin v. Warner, 2 Phila.
124; Codwise v. Gelston, 10 Johns. 507; Manhattan Co. v. Evertson, 6
Paige, 457; Miner v. Warner, 2 Grant, 448; Eastman vy. Schettler, 13 Wis.
324; Wooten y. Clarke, 23 Miss. 75; Contra, Miller v. Sherry, 2 Wall.
237,

? Haymaker’s Appeal, 53 Penn. 306.

5 Pratt v. Wheeler, 6 Gray, 520.

* Robinson v. Monjoy, 2 Halst. 173.

* Booth v. Bunce, 24 N. ¥. 592; 8. c, 88 N. Y. 189; 8. c, 85 Barb. 496.

® Gibbs v. Chase, 10 Mass. 125.
FRAUDULENT TRANSFER. 463

from being taken upon a judgment against one of the
partners for a separate debt.

PURCHASER UNDER EXECUTION.—The purchaser at a
sale under an execution acquires all the right, title, and
interest in the property which the debtor had prior to
the transfer, is vested with the rights of the creditor,
entitled to the same relief, and can protect his title
against the frauds of the judgment debtor, in the same
manner and to the same extent that the judgment
creditor might have done had he purchased. It is true
that he holds asa purchaser and not as a judgment
creditor, but-as he represents a creditor he is entitled
to the fuil benefit of the statute? The inadequacy of
the price does not affect the rights of the purchaser, for
the parties to a fraudulent transaction have no cause to
complain, because the cheapness of the purchase is due
to the unwarrantable acts of the debtor himself in
throwing a cloud over his title and thus causing a
sacrifice of his property.®

Proor or titLte.—In order to establish his title, a
purchaser must produce the judgment as well as the

 

1 Jacques v. Greenwood, 12 Abb. Pr. 2382.

? Pepper v. Carter, 11 Mo. 540; Barr v. Hatch, 3 Ohio, 527 ; Fishburne
y. Kunhardt, 2 Speers, 556; Jones v. Crawford, 1 McMullan, 376 ; Rus-
sell ¥. Dyer, 33 N. H.186; Sands v. Hildreth, 14 Johns. 498; s. co. 2 Johns,
Ch. 35; Eastman v. Schettler, 13 Wis. 324; Duvall v. Waters, 1 Bland.
567; 8.c. 11 G. & J. 37; Cole v. White, 26 Wend. 511; 8. c, 24 Wend.
116; Wadsworth v. Havens, 3 Wend. 411; Carpenter v. Simmons, 1 Robt.
860; Thomson v. Dougherty, 12 8. & R. 448; Carter v. Castleberry, 5 Ala,
277; Douglass v. Dunlap, 10 Ohio, 162; Middleton vy. Sinclair, 5 Cranch
C. C. 409 ; Laurence v. Lippincott, 1 Halst. 473 ; Miller v. Tolleson, Harp.
Ch. 145; Croft y. Arthur, 3 Dessau. 223.

5 Thomson v. Dougherty, 12 8. & R. 448; Hildreth v. “ande 2 Johns.
Ch. 35; 8. c. 14 Johns, 493; Laurence v. Lippincott, 1 Halst, 473; Mul-
len v. Wilson, 44 Penn. 413.
464 FRAUDULENT TRANSFER.

writ under which the property has been sold,’ and when
land is sold he must also show a deed from the officer
who made the sale.” The rights which he acquires are
simply those which the debtor had at the time of the
transfer. Prior liens are not affected by the transfer, and,
as he takes merely the quantity of interest which the
debtor had, his title is subject to such liens.’ It has
been held that, if the fraudulent transfer consists of a
mortgage, and one creditor merely levies upon and sells
the equity of redemption, another creditor may levy upon
and sell the whole property, and the purchaser at the
second sale will obtain a valid title to the whole prop-
erty. The grantee can not set up a defect in the
debtor's title for the purpose of defeating a recovery by
a purchaser and thus retaining the property.?

SALE SUBJECT TO TRANSFER.— Whether a purchaser
represents the rights of creditors will in some instances
depend upon the interest that is sold. If the fraudulent
transfer consists of a mortgage, a creditor may elect to
treat it as valid and subsisting, and sell only the equity
of redemption. The purchaser will not then represent
the creditor’s right to inquire into the consideration of
the mortgage debt, or to impeach it upon any grounds
not open to the debtor himself, and will gain no ad-
vantage whatever from the fact that the sale was by a
sheriff on execution for the satisfaction of a debt.’ If

 

* M’Creery v. Pursley, 1 A. K. Marsh. 114; Wright v. Crockett, 7 Mo.
125 ; Dameron v. Williams, 7 Mo. 188; Delesdernier v. Mowry, 20 Me. 150;
Hyman v. Bailey, 18 La. An. 450.

? Hiney v. Thomas, 36 Mo. 3877.

* Byrod’s Appeal, 31 Penn. 241; Fisher’s Appeal, 33 Penn. 294.

* Bullard vy. Hinkley, 6 Me. 289 ; McWhorter v. Huling, 3 Dana, 348.

® Zerbe v. Miller, 16 Penn. 488 ; vide Birge v. Nock, 34 Conn. 156.

° Flanders v. Jones, 30 N. H. 154; Russell v. Dudley, 3 Met. 147;
McWhorter v. Huling, 3 Dana. 348,
FRAUDULENT TRANSFER. 465

the debtor has been declared a bankrupt, the right to
elect whether to affirm or avoid the mortgage can only
be exercised by his assignee. He may either treat it as
valid and sell only the equity of redemption, or he may
elect to avoid it and sell the whole title to the property.
If he sells merely the equity of redemption, the pur-
chaser can not impeach the mortgage.’ If, however
he elects to treat it as void he is not bound to incur
the delay and expense necessarily incident to the prose-
cution to final judgment of legal proceedings to establish
the invalidity of the mortgage, but may treat it as null
and void, and sell and convey his whole interest in the
mortgaged estate. The right to deny and contest the
validity of the mortgage will in such case pass to the
purchaser.’

No LEVY ON PROFITS OR PROCEEDS.—The grantee
has a valid title until the creditors, by asserting their
rights iff due course of law, defeat it, and when defeat-
ed it is not rendered void ab initio, but only from the
time of the levy of the execution under which the prop-
erty is sold. Consequently he can not be made liable
in an action at law for the mesne profits. For the same
reason when land is fraudulently conveyed the creditors
can not levy upon the crops,> or upon property which
he has converted from realty into personalty, as, for in-
stance, plaster dug from the ground or stone taken
from a quarry,‘ unless they can show that his title to
such personal property is merely colorable. If the
property is sold, the proceeds or other property re-
ceived in exchange is not liable to an attachment or ex-

 

1 Tuite v. Stevens, 98 Mass. 305; Brewer v. Hyndman, 18 N. H. 9.

? Freeland v. Freeland, 102 Mass. 475 ; Dwinel v. Perley, 32 Me. 197;
Gibbs v. Thayer, 6 Cush. 30.

* Jones y. Bryant, 33 N. H. 53.

4 Garbutt v. Smith, 40 Barb. 22.
80
466 FRAUDULENT TRANSFER.

ecution at law, for the statute only operates upon prop-
erty conveyed by the debtor, and that which the grantee
receives as a consideration for the sale never belonged to
the debtor and is not within the statute. The only
remedy in such a case is by a bill in equity.’

SupsEquent EVENTS.—A creditor may treat a parti-
tion made by the grantee as legal on the ground that
it was made by the debtor through the agency of the
grantee by means of the deed, and at the same time in-
sist that the deed is void so far forth as it is designed
to defraud creditors.” As the statute operates upon
the conveyance and not upon the estate transferred, the
creditors will take all the estate which the debtor has
at the time when they impeach the transfer and not
merely the interest transferred. If the debtor, at the
time of the transfer, has a defeasible estate, which sub-
sequently becomes absolute, the whole estate is liable
to his creditors.’

Rieuts or GRaANTEE.—The right to redeem property
sold under an execution belongs to the grantee and not
to the debtor,* but the redemption will not give him
a good title. If the grantee gives a bond to dissolve
an attachment levied upon the property and thus re-
gains possession of it, his title is still liable to be im-
peached by other creditors.® It has also been held

 

» Lawrence v. Bank, 35 N. Y. 320;s. c. 3 Robt. 142; Tubb v. Williams,
% Humph. 367 ; Campbell vy. Erie R. R. Co. 46 Barb. 540; Childs v. Der-
rick, 1 Yerg. 79; Richards v. Ewing, 11 Humph. 327 ; Contra, Abney v.
Kingsland, 10 Ala. 355; Carville v. Stout, 10 Ala. 796; Lynch v. Welsh,
3 Penn. 294; Heath v. Page, 63 Penn. 280; French vy. Breidelman, 2
Grant, 319.

? Staples vy. Bradley, 23 Conn. 167.

® Flynn v. Williams, 7 Ired. 32; 8. c. 1 Ired. 509.

* Russell v. Fabyan, 84 N. H. 218; 8. c. 27 N. H. 529.

* Ricker v. Ham, 14 Mass. 137; Williams vy. Thompson, 13 Pick. 298.

* Jacobi v. Schloss, 7 Cold. 385.
FRAUDULENT TRANSFER. 467

that the grantee does not get a good title even by a
purchase at a sale under an execution.’ The surplus
that remains after satisfying an execution belongs to
the grantee.”

Dower. Exemption.—If the debtor’s wife unites in
an absolute conveyance of land, her right to a dower
is extinguished.? In the case of a fraudulent mortgage,
she has a dower interest which may be assigned to her.*
When property is fraudulently purchased in the name
of another, there is no dower interest in it? A home-
stead can not be claimed out of property fraudulently
conveyed,’ nor can any exemption be allowed out of
such property.’

Rescisston.—The law does not deprive parties of
the power of repentance, but rather encourages them
to abandon fraudulent conveyances’ and make honest
bargains instead of them. The grantee will not be li-
able to creditors if he restores the property to the
debtor,® or applies it to the payment of the grantor’s

 

* Spindler v. Atkinson, 3 Md. 809; s. c. 1 Md. Ch. 507.

2 Taylor v. Williams, 1 Ired. 249; Williams v. Avent, 5 Ired, Eq. 47 ;
Shorman y. Farmers’ Bank, 5 W. & 8. 373; Glassner v. Wheaton, 2 E. D.
Smith, 8352; Waterbury v. Westervelt, 9 N. Y. 598 ; Bostwick v. Menck,
40 N. Y. 383.

° Meyer v. Mohr, 19 Abb. Pr. 299; Cox v. Wilder, 5 B. R. 443; Man-
hattan Co. y. Evertson, 6 Paige, 457; Stewart v. Johnson, 3 Harrison, 87 ;
Coppage v. Barnett, 34 Miss. 621; odde Belford v. Crane, 1C. E Green,
265; Dugan y. Massey, 6 Bush. 81; Summers v. Babb, 13 Ill. 483; Robin-
son yv. Bates, 3 Met. 40; Lowry v. Fisher, 2 Bush, 70; Wyman yv. Fox, 59
Me. 100.

4 Harrison v. Campbell, 6 Dana, 263.

6 Miller v. Wilson, 15 Ohio, 108.

® Sumner y. Sawtelle, 8 Minn. 309; Cox v. Wilder, 5 B. R. 443; Stan-
cell v. Branch, 1 Phillips, 306.

™ Huey’s Appeal, 29 Penn. 219; Carl v. Smith, 28 Leg. Int. 366 ; Steven-
son v. White, 5 Allen, 148 ; vide Newman v. Willetts, 52 Ill. 98,

* Cramer y. Blood, 57 Barb. 155.
468 FRAUDULENT TRANSFER.

debts! The parties may also rescind the fraudulent
contract and enter into a new contract for a sale or
other transfer of the property, and if the latter is made
in good faith and for a valuable consideration it will
not be contaminated by the fraud in the first.’ If
property is purchased in part with funds furnished by
the debtor and in part by the grantee, it may be sold
and the grantee’s share invested in other property.» Al-
though a mortgage is fraudulent, yet if the property
is sold and the proceeds applied to pay the debt, other
creditors can not afterwards raise any objections.* The
grantor and the grantee may also unite in a transfer of
the property to a ona fide purchaser, and he will ac-
quire all the rights of both, and will not be necessarily
affected by any illegality in the first transfer.”

THERE MUST BE RESTITUTION.—There is no valid re-
pentance, however, without an entire restitution where
this is possible. All the benefits of the fraudulent ar-
rangement must be abandoned. A transfer can not be
purified by merely abandoning the fraudulent purpose
for which it was given and using it for an honest one.®

 

? Hutchins v. Sprague, 4 N. H. 469; Kaupe v. Bridge, 2 Robt. 459;
Crowninshield v. Kittredge, 7 Met. 520.

* King v. Cantrel, 4 Ired. 251; Merrillv. Meachum, 5 Day, 341;
Matthews v. Buck, 43 Me. 265; Borland v. Mayo, 8 Ala. 104; White v.
White, 13 Ired. 265; Thrall vy. Spencer, 16 Conn. 189; Waller v. Todd, 3
Dana, 503; Oriental Bank yv. Haskins, 3 Met, 382; Harvey v. Mix, 24
Conn. 406; vide Halcombe v. Ray, 1 Ired. 840.

* Allen y. Holland, 8 Yerg. 343.

“Roane v. Bank, 1 Head, 526; Stoddard v. Butler, 7 Paige, 163;
8, 0. 20 Wend. 507; Peacock v. Tompkins, Meigs, 817.

* Eaton v. Campbell, 7 Pick. 10; Breckinridge y. Anderson, 3 J. J.
Marsh. 710; Gridley v. Wynant, 23 How. 500; Brown v. Riley, 22 Ill. 45;
Wall v. White, 8 Dev. 105; White vy. White, 13 Ired, 265; Parker v. Crit-
tenden, 37 Conn. 148.

‘ Bunn y. Ahl, 29 Penn. 387.
FRAUDULENT TRANSFER. 469

Ifa transfer is fraudulent, the subsequent payment in
full of the purchase money will not render it valid.’ So
also if the transaction is merely colorable, it will not be
purged by any subsequent payment or advances in part
without rescinding the whole, whether made to the
debtor or the creditors. If any part of the fraudulent
purpose remains it vitiates the whole? A consideration
paid at the time when a party assents to a deed placed
on record without his knowledge is not, however, a
subsequent consideration.®

ADMINISTRATOR, ASSIGNEE.—If the grantee dies be-
fore a rescission of the transfer, the personal property
will vest in his personal representatives, and no return
can be made which will interfere with their rights.
When a judgment is confessed for certain articles in
favor of an administrator, accompanied with a secret
trust, the trust is void, and the distributees may re-
quire the enforcement of the judgment.’ If the debtor
subsequently makes an assignment, the creditors may
still have the fraudulent transfer set aside, for he can
not transfer any right to his assignee which he himself
does not possess.°

 

1 Borland vy. Mayo, 8 Ala. 104; Chenery v. Palmer, 6 Cal. 119.

2 Wood v. Hunt, 38 Barb. 302 ; Danjean v. Blacketer, 13 La. An. 595 ;
Lynde v. McGregor, 13 Allen, 182 ; Stone v. Grubbam, 2 Bulst. 217; 8. c.
1 Rol. Rep. 3; Law v. Payson, 32 Me. 521; Halcombe v. Ray, 1 Ired. 340.

* Smith v. Espy, 1 Stockt. 160. * Dearman y. Radcliffe, 5 Ala. 192.

5 Kavanaugh v. Thompson, 16 Ala, 817.

* Brownell vy. Curtis, 10 Paige, 210; Browning v. Hart, 6 Barb. 91 ;
Storm v. Davenport, 1 Sandf. Ch. 135; Thomson y. Dougherty, 128. & R.
448; Vandyke vy. Christ, 7 W. & 8S. 873; Leach v. Kelsey, 7 Barb. 466 ;
Estabrook v. Messersmith, 18 Wis. 545; Maiders v. Culver, 1 Duvall, 164;
Van Keuren y. McLaughlin, 21 N. J. Eq. 163 ; Luckenbach v. Bricken-
stein, 5 W. & 8. 145; vide Englebert v. Blanjot, 2 Whart. 240; Swift v.
Thompson, 9 Conn. 63 ; Galt v. Dibrell, 10 Yerg. 146; Gaylor v. Harding,
37 Conn. 508; Rood v. Welch, 28 Conn. 157; Shipman v. Aitna Ins. Co.
29 Conn, 245.
470 FRAUDULENT TRANSFER.

MortGAGE DEBT, EQUITY OF REDEMPTION.—A fraudu-
lent mortgage does not extinguish the debt for which
it was given, and if the security fails the debt remains
in full force. As it did not arise ex turpi causa, it can
not be merged by anything merely collateral.’ A
fraudulent release of an equity of redemption does not
destroy or extinguish the mortgage. When the cred-
itors avoid the conveyance the law remits and restores
the mortgagee to his previously existing legal rights.
This gives the statute its proper and legitimate effect,
permits the purchaser to hold nothing by his fraudu-
lent contract, and the creditors to take all their debtor
fraudulently conveyed and nothing more. The very
avoiding of the fraudulent conveyance revives and
renews the former valid lien and restores the parties
to their original position.?

VorD IN PART IS vorD in ToTo.—If a part of the
consideration for a transfer is merely a nominal or color-
able consideration, contrived to hinder, delay, or de-
fraud creditors, the whole transfer is void.* If a man
who has goods but of the value of 302. is indebted to
two men, viz., to one in 20/. and to another in 10/. and
the debtor transfers all his goods to him to whom he
owes 10/. to the intent that for the residue above the

 

|? Haven v. Low, 2 N. H. 13.

* Ladd v. Wiggin, 35 N. H. 421; Mead v. Combs, 4 C. E. Green, 112;
Stokoe v. Cowan, 29 Beav. 637; Ripley v. Severance, 6 Pick. 474; Britt
vy. Aylett, 11 Ark. 475; Towle v. Hoitt, 14 N. H. 61; Irish v. Clayes, 10
Vt. 81; Stedman v, Vickery, 42 Me. 132; Daniel v. Morrison, 6 Dana, 182;
8. c.6 J. J. Marsh. 398 ; vide Clayborn v. Hill, 1 Wash. (Va.) 177.

* Floyd v. Goodwin, 8 Yerg. 484; Marriott v. Givens, 8 Ala. 694; Ta-
tum v. Hunter, 14 Ala. 557; Burke v. Murphy, 27 Miss, 167 ; McKenty
v. Gladwin, 10 Cal. 227; Scales v. Scott, 13 Cal. 76; Fiedler v. Day, 2
Sandf. 594; Mead v. Combs, 4 C. E. Green, 112; Hall v. Heydon, 41 Ala.
242; Albee v. Webster, 16 N. H. 862; Coolidge vy. Melvin, 42 N. H. 510;
Johnson vy. Murchison, 1 Winst, 292.
FRAUDULENT TRANSFER. 471

10/. he shall be favorable unto him, the sale is altogether
void, for it is fraudulent in part.’ So also if a creditor
takes a judgment,’ or issues an attachment,’ for more
than is due, the fraud corrupts and destroys the whole.
There must, however, be fraud to bring a case within
this principle. If there is no fraud or wrong done, or
attempted, or intended to be done, the principle does
not apply. If an attachment or judgment is taken for
too much inadvertently, and the creditor has no purpose
of obtaining any more than is due to him, it will be
valid.*

FRAUDULENT AS TO PART OF THE PRopERTY.—If a
mortgage is made with the intent to secure a part of
the property to the mortgagee, and to cover the residue
for the use of the debtor it is void as to the whole. To
render an instrument valid it must be given in good
faith and without any intent to hinder or defraud cred-
itors. This can not be true when the object as to a
part of the property is to defraud creditors. This un-
lawful design vitiates the entire instrument. The unlaw-
ful design can not be confined to one particular parcel
of property. Entire honesty and good faith are neces-
sary to render the instrument valid, and whenever it
appears that one object was to defraud creditors, the en-
tire deed is in judgment of law void.® When fraud,

 

? Wilson & Wormal’s Case, Godbolt, 161.

* Pierce v. Partridge, 8 Met. 44; Whiting v. Johnson, 11 8. & R. 328,
Fryer v. Bryan, 2 Hill Ch. 56; Bowie v. Free, 3 Rich. Eq. 403; Dickinson
y. Way, 3 Rich. Eq. 412 ; Gates v. Johnson, 3 Penn. 52,

®° Fairfield v. Baldwin, 12 Pick. 888 ; Taaffe v. Josephson, 7 Cal. 352;
Hale v. Chandler, 3 Mich. 531; Harding vy. Harding, 25 Vt. 487.

“Felton v. Wadsworth, 7 Cush. 587; Ayres v. Husted, 15 Conn. 504 ;
Shedd v. Bank, 32 Vt. 709; Davenport v. Wright, 51 Penn, 294; Wilder
y. Fondey, 4 Wend. 100; Harris v. Alcock, 10 G. & J. 226.

5 Russell vy. Winne, 87 N. Y. 591; 8. c. 4 Abb. Pr. (N. 8.) 384; Tick-
nor vy. Wiswall, 9 Ala. 305; Goodhue v. Berrien, 2 Sandf. Ch. 680; Darwin
472 FRAUDULENT TRANSFER.

however, is imputed from the mere omission to deliver
the possession of the property to the grantee, the trans-
fer will be good as to the articles which are delivered,
although it may be void as to the residue.

A FRAUDULENT stipuLation.—A fraudulent stipu-
lation in a written instrument vitiates the entire instru-
ment. The taint as toa part makes the whole void.
Wherever an instrument is good in part and fraudulent
in part, it is void altogether, and no interest passes un-
der the part which is good.’

SEVERAL GRANTEES.—The same instrument may be
evidence of a gift, grant, or conveyance to different in-
dividuals and for different objects, and may be invalid as
to one of the grantees without affecting the other.
They may be so disconnected in respect to the consider-
ation that the fraud of one can not implicate the other
in any dishonest purpose. If, for instance, a deed is
made to secure two distinct claims, one of which is real
and the other fictitious, it will be void as to the fraudu-
lent grantee and valid as a security for the claim of the

 

y. Handley, 3 Yerg. 502; Young v. Pate, 4 Yerg. 164; Sommerville v.
Horton, 4 Yerg. 541 ; Swinford v. Rogers, 23 Cal. 233; vide Shurtleff v.
Willard, 19 Pick. 202; Chase v. Walker, 26 Me. 555; Barnet v. Fergus,
51 Ill. 352 ; in re Kahbley et al. 4 B. R. 124; Allen v. Brown, 43 Geo. 305.

1D’Wolf v. Harris, 4 Mason, 515; De Bardleben v. Beckman, 1 Des-
sau. 8346; Brown vy. Foree, 7 B. Mon. 357; Weller v. Wayland, 17 Johns.
102 ; Lee v. Huntoon, Hoff. 447 ; Spaulding v. Austin, 2 Vt. 555 ; Hessing
v. McCloskey, 87 Ill. 341.

? Hyslop v. Clarke, 14 Johns. 458; Mackie v. Cairns, 5 Cow. 547; 8. ¢.
1 Hopk. 373; Goodrich v. Downs, 6 Hill, 488; Albert v. Winn, 7 Gill,
446; McClurg v. Lecky, 3 Penna. 83 ; Robins v. Embry, 1 8. & M. Ch.
207; Jacot v. Corbett, 1 Chev. Eq. 71; Howell v. Edgar, 3 Scam. 417;
Dana y. Lull, 17 Vt. 390; Caldwell v. Williams, 1 Ind. 405; Pierson v.
Manning, 2 Mich. 445; Green vy. Branch Bank, 83 Ala. 648; Greenleaf v-
Edes, 2 Minn. 264; Palmer v. Giles, 5 Jones Eq. 75; Spies v. Boyd, 1 E.
D. Smith, 445; s.c. 11 Leg. Obs. 54.
FRAUDULENT TRANSFER. 473

innocent grantee.’ If, however, the grantee who has a
valid claim knows at the time of the execution of the
deed that the other claim is fictitious, the deed will be
void as to both grantees.’

A fraudulent recovery stands good to bar those in
remainder or reversion, as if there had been no fraud.
The deed declaring the uses is void. The recovery
stands as a recovery simply without any deed to lead or
declare the uses.2 When the fraud consists in the cre-
ation of an annuity upon a consideration paid by the
debtor to the grantor, the instrument is not void so far
as it creates the annuity, but it is void so far as it di-
rects who shall take the benefit.* Although a debtor
refuses to take a deed for land purchased by him for
the purpose of defrauding his creditors, the agreement
will be valid against the creditors of the vendor” Ifa
note is taken in the name of another, the maker, when
innocent of the fraud, can not be held liable to cred-
itors.®

 

1 Prince v. Shepard, 9 Pick. 176; Anderson v. Hooks, 9 Ala. 704; Gary
y. Colgin, 11 Ala. 514; vide Pettibone v. Phelps, 138 Conn, 445 ; Estabrook
vy. Messersmith, 18 Wis, 545.

2 Lewis v. Caperton, 8 Gratt. 148; Swartz v. Hazlett, 8 Cal. 118.

® Tarleton v. Liddell, 17 Q. B. 390; s. c. 4 DeG. & Sim. 538.

4 Shee v. French, 3 Drew. 716 ; Neale v. Day, 28 L. J. Ch. 45 ; French
v. French, 6 D. M.& G. 95; 8. c. 25 L. J. Ch. 612; Wakefield v. Gibbon,
1 Giff. 401.

® Cutting v. Pike, 21 N. H. 347.

° Patterson v. Whittier, 19 N. H. 192.
CHAPTER XVI.
BONA FIDE PURCHASERS.

PURCHASER AS WELL AS GRANTEE PROTECTED.—/s
gui a debitore cujus bona possessa sunt sciens rem emat
iterum alit bona fide ementi vendidit.  Qucsitum est
an secundus emptor convenirt potest ; sed verior Sabint
sententia bona fide emptorem non tenert ; quia dolus e&
duntaxat nocere debeat qui eum admisit The prin-
ciple that fraud is only prejudicial to him who partici-
pates in it is also recognized by the statute. The pro-
viso protects all interests and estates lawfully conveyed
or assured upon good consideration, and bona fide toa
person who, at the time of such conveyance or assur-
ance, has no manner of notice or knowledge of the co-
vin, fraud or collusion. These terms are broad and ex-
tensive. They apply to any conveyance, whether from
the fraudulent grantor or fraudulent grantee. They are
meant to protect a bona fide purchaser for a valuable
consideration, without notice of the fraud from the
operation of the statute. This is manifest as well from
the internal evidence of the proviso as from the plainest
maxims of equity and justice. The proviso is general.
It exempts any conveyance upon good consideration
and bona fide to any person not having notice of the
fraud or collusion from the effect of the statute. Its

 

* Dig. Lib. 42 Tit. 9; 3 Pothier Pand. Lib. 42, Tit. 8, Art. 3, § 25, p.
195,
BONA FIDE PURCHASERS. 475

benefits, therefore, extend to any bona fide purchaser
for valuable consideration, whether he purchases from
the fraudulent grantor or the fraudulent grantee!

The great object of the law is to afford certainty and
repose to titles honestly acquired. It is of no public
utility to destroy titles so acquired on account of the
taint of a prior secret fraud, which may be unsuspected
and unknown, and which, probably, no diligence could
detect. A purchaser who pays a fair price for an os-
tensibly fair title without notice of any latent fraud in
any previous link of the title has a higher equity than
the creditors. They may lose their debts; if they can
recover the property from him, he may lose the money
which he paid for it. The equities between them are
equal, and he has the legal title, and consequently the
prior right, for the law never divests one of a legal title
in order to invest another with it where there are no
equitable reasons for so doing. He will, therefore, hold
the estate purged of the anterior fraud that infected the
title.’

VomaBLE onty.—The statute, it is true, declares a
fraudulent transfer to be clearly and utterly void, frus-
trate and of none effect. There is a.distinction, how-
ever, between a transfer which is an absolute nullity
and one which is voidable only. No transfer can be
pronounced in a legal sense utterly void which is valid
as to some persons, but may be avoided at the election
of others. A thing is void which is done against law
at the very time of doing it, and where no person is

 

» Anderson vy. Roberts, 18 Johns, 515; s. c, 2 Johns. Ch, 372; Mateer
y. Hissim, 3 Penna, 160; Bean vy. Smith, 2 Mason, 252; Martin v. Cowles,
1 Dev. & Bat. 29,

* Lee v. Abbe, 2 Root. 359; Bean vy. Smith, 2 Mason, 252; Martin v.
Cowles, 1 Dev. & Bat. 29.
476 BONA FIDE PURCHASERS.

bound by the act, but a thing is: voidable which is
done by a person who ought not to have done it, but
who, nevertheless, can not avoid it himself after it is
done. Whenever the act done takes effect as to some
purposes, and is void as to persons who have an inter-
est in impeaching it, the act is not a nullity, and, there-
fore, in a legal sense, is not utterly void, but merely
voidable.! The transfer, however, is good between the
parties. As against the debtor it is effectual, and the
fraudulent grantee has a title and a right to alienate.
The only infirmity in his title is its lability to be im-
peached by creditors. As to all others it is perfect,
and when it has passed into the hands of an innocent
holder even this infirmity is cured and the title be
comes sound and indefeasible.” There is no distine-
tion in this respect between actual and constructive
fraud.?

 

* Anderson y. Roberts, 18 Johns. 515; s. c. 2 John. Ch. 872; Martin vy.
Cowles, 1 Dev. & Bat. 29.

* George v. Kimball, 24 Pick. 284; Gridley v. Wynant, 23 How. 500;
Wilson & Wormal’s Case, Godbolt, 161; Martin v. Cowles, 1 Dev. & Bat.
29; Thompson v. M’Kean, 1 Ashmead, 129; Hood v. Fahnestock, 8 Watts,
489; Mateer v. Hissim, 3 Penna. 160; Ewing v. Cargill, 18 8. & M. 79;
Blake v. Williams, 36 N. H. 39; Paige v. O’Neal, 12 Cal. 483; Green v.
Tanner, 8 Met. 411; Sutton v. Lord, 1 Dane. Ab. 681: Goodale v. Nichols,
1 Dane. Ab. 631; Gordon v. Haywood, 2 N. H. 402; Hawkins v. Sneed, 3
Hawks, 149; Hoy v. Wright, Brayt. 208; Neal v. Williams, 18 Me. 391;
Trott v. Warren, 11 Me. 227; Erskine v. Decker, 39 Me. 467; Bean v.
Smith, 2 Mason, 252; Jackson y. Terry, 13 Johns. 471; Lee v. Abbe, 2
Root, 359 ; Coleman v. Cocke, 6 Rand. 618; King v. Trice, 3 Ired. Eq.
568; Cummings v. McCullough, 5 Ala, 324; Sheldon vy. Stryker, 42 Barb.
284; 8. c. 27 How. Pr. 387; Wineland v. Coonce, 5 Mo. 296; Pine v.
Rikert, 21 Barb. 469; Simpson v. Simpson, 7 Humph. 275; Ewing v. Car-
gill, 13 8. & M. 79; Choteau v. Jones, 11 Ill. 800; Commonwealth vy.
Richardson, 8 B. Mon. 81; Richards vy. Ewing, 11 Humph. 327; Colquitt
v. Thomas, 8 Geo. 258; Sinclair v. Healy, 40 Penn. 417; Curtis y. Riddle,
7 Allen, 185; Rankin vy. Arndt, 44 Barb. 251; Parker v. Crittenden, 37
Conn, 148; Contra, Preston v. Crofut, 1 Conn. 527, note; Read y. Staton,
3 Hey. (Tenn.) 159,

* Thompson v. Lee, 8 W. &. S. 479.
BONA FIDE PURCHASERS. ATT

Must BE Bona riwE—An inquiry in regard to the
rights of a purchaser only becomes material when he
purchases for a valuable consideration without notice of
the fraud. If he does not give a valuable consideration,
or if he has notice of the fraud,® he is in the same po-
sition towards the creditors as the fraudulent grantee,
for he is, in the contemplation of the law, a participant
in the fraud. If he takes a transfer in payment of a
pre-existing debt due from the grantee, he is not entitled
to protection against the creditors, for the avoidance of
the conveyance places him in no worse situation than
he was before, and the creditors have the stronger
equity.’ The relinquishment of a security is a good
consideration.* The transaction between the fraudulent
grantee and the purchaser must be completely closed
by the payment of all the purchase money and the com-
pletion of the transfer before the notice, or the purchaser
can not hold the property. Notice before the payment
of the purchase money,’ or the completion of the trans-
fer,’ is sufficient to invalidate the transaction. Merely
giving security for the purchase money is not enough
to entitle a party to the character of a purchaser for a
valuable consideration.® An innocent mortgagee as

 

1 Forrest v. Camp, 16 Ala. 642.

? Parkman y. Welch, 19 Pick. 231; Wise v. Tripp, 138 Me. 9; Garland
y. Rives, 4 Rand. 282; Knox v. Hunt, 18 Mo. 174; O’Connor v. Bernard, 2
Jo. 654; Dockray v. Mason, 48 Me. 178.

® Manhattan Co. v. Evertson, 6 Paige, 457; Agricultural Bank v. Dor-
sey, 1 Freem. Ch. (Miss.) 338; Jessup v. Hulse, 29 Barb. 5839; Contra,
Knox v. Hunt, 18 Mo. 174; Thornton v. Hook, 36 Cal, 2238; Okie vy.
Kelly, 12 Penn. 323.

4 Agricultural Bank v. Dorsey, 1 Freem. Ch. 338.

5 Dugan v. Vattier, 3 Blackf. 245; Colquitt v. Thomas, 8 Geo, 258.

® Dixon y. Hill, 5 Mich. 404 ; vide Newlin v. Osborne, 6 Jones (N. C.),
128,

7 Farnsworth v. Bell, 5 Sneed, 581; Jones v. Read, 3 Dana, 540.

* Rogers v. Hall, 4 Watts, 359.
478 BONA FIDE PURCHASERS.

well as a dona fide purchaser is within the protection
of the proviso.’

WHAT NOTICE surFicient.—The notice of the fraud
need only be sufficient to put a man of ordinary pru-
dence and experience in business transactions upon the
inquiry.’ It is sufficient if the information is so definite
as to enable the purchaser to ascertain whether it is au-
thentic, and sufficiently clear and authentic to put the
purchaser on inquiry, and to enable him to conduct
that inquiry to the ascertainment of the fact. It is not
necessary that the notice should be in the shape of a
formal communication. Whatever is sufficient to direct
his attention to the prior rights and equities of creditors
and to enable him to ascertain their nature by inquiry
will operate as notice.*

When a purchaser has knowledge of any fact suffi-
cient to put him on inquiry, he is presumed either to
have made the inquiry and ascertained the extent of
the rights that he may possibly prejudice or to have
been guilty of a degree of negligence fatal to the claim
to be considered a bona fide purchasers This notice
may be derived from the statement of creditors or other
parties.” The debtor's retention of the possession of
land,® or personal property,’ is not a sufficient notice
of any fraud in the transaction. The purchaser is
chargeable with notice of all the matters which ap-

 

1 Stone v. Bartlett, 46 Me. 489.

* Ringgold v. Waggoner, 14 Ark. 69; Johnston y. Harvey, 2 Penna. 82;
Baker v. Bliss, 39 N. Y. 70.

* Martel v. Somers, 26 Tex. 551.

“ Baker v. Bliss, 39 N. Y. 70.

* Martel v, Somers, 26 Tex. 551.

* Suiter v. Turner, 10 Iowa, 517,

* Danzey v. Smith, 4 Tex. 411; Boyle v. Rankin, 22 Penn. 168.
BONA FIDE PURCHASERS. 449

pear to be within the knowledge and memory of his
agent."

APPARENT ON FACE OF THE INSTRUMENT.—The law
sanctions a conveyance founded upon the consideration
of blood or of marriage merely. The legal presumption,
therefore, is that such a conveyance is valid and not a
fraud upon the rights of any one. The mere fact that
a purchaser from the holder of such a title has notice
that it was not founded upon a pecuniary consideration
is not sufficient to make it his duty at his peril to in-
quire whether the title of his grantor was not fraudu-
lent. On the contrary he has a right to act upon the
legal presumption that such a deed of gift or voluntary
settlement was honestly made until some other fact is
brought to his knowledge to raise a suspicion in his
mind that the conveyance is fraudulent.” He is, how-
ever, bound to take notice of any fraud apparent upon
the face of a deed under which he claims title.’

SUBSEQUENT JuDeMENT.—In the case of a fraudulent
transfer of land, asubsequent judgment against the grantor
is not constructive notice to a purchaser from the grantee,
for upon searching the records and finding the trans-
fer, the person who is about to purchase is not bound to go
further and search the records for the purpose of ascer-
taining whether subsequent judgments may not have
been recovered against the debtor.t The title even of a
purchaser at a sale under an execution issued upon such

 

? Hook v. Mowre, 17 Iowa, 195; wide Hood v. Fahnestock, 8 Watts,
489.

* Frazer vy. Western, 1 Barb. Ch. 220; 8.0.1 How. App. Cas. 448;
Sparrow v. Chesley, 19 Me. 79.

* Farmers’ Bank v. Douglass, 11 8S. & M. 469; Johnson v. Thweatt, 18
Ala. 741; Spencer v. Godwin, 30 Ala. 355; Palmer v. Giles, 5 Jones Eq.
75; Ward v. Trotter, 3 Mon. 1; Johnston y. Harvey, 2 Penna. 82.

‘Ledyard v. Butler, 9 Paige, 132; Jackson v. Terry, 18 Johns. 471.
480 BONA FIDE PURCHASERS.

judgment will not derive any strength from the lien of
the judgment, but in determining the rights of the par-
ties will be deemed to date only from the sale Al.
though the purchaser from the grantee has not placed
his deed on record, he will have the better right as
against a party who purchases subsequently at a sheriff's
sale? Although a judgment or an execution may be a
lien by force of the statute as against the parties to the
fraud, yet as against purchasers there is no lien upon
any property the title to which is not in the execution
debtor. Consequently a purchaser may acquire a good
title even after an execution has been issued. Ifa party
purchases, however, after the levying of an execution or
an attachment‘ or during the pendency of a suit against
the grantee calling his title in question, he is a purchaser
pendente lite, and his rights are subordinate to those of
the creditors.” A sale under an execution will prevail
over a subsequent purchase from the grantee.® It has,
however, been held that a sale under an execution of
property fraudulently purchased in the name of another
and a record of the sheriff’s deed would not prevail
ageinst a subsequent bona jide purchaser from the
grantee on the ground that the registry of a deed is
only evidence of a notice to subsequent purchasers under
the same grantor.’

 

* Scott v. Purcell, 7 Blackf. 66,

* Coleman v. Cocke, 6 Rand. 618; side Ledyard v. Butler, 9 Paige,
132; Jackson v. Terry, 13 Johns. 471.
‘ * Williams vy, Lowe, 4 Humph. 62; Contra, McCabe v. Snyder, 3 Phila.

92.

‘ Tuttle v. Turner, 28 Tex. 759.

* Jackson y. Andrews, 7 Wend. 152; Collumb v. Read, 24 N. Y. 505.

*M’Creery v. Pursley, 1 A. K. Marsh. 114 ; Baxter v. Sewell, 3 Md.
334; 8. c. 2 Md. Ch. 447; Reed y. Smith, 14 Ala, 380 ; Brown v. Niles, 16
Ill. 885; Read y. Staton, 3 Hey. (Tenn.) 159.

" Crockett vy. Maguire, 10 Mo. 34,
BONA FIDE PORCHARERS. 481

Marriacz.—lIf the property fraudulently conveyed
has been any inducement to a marriage, the marriage
constitutes a valuable consideration, and the husband
and wife are considered as purchasers.! The marriage,
however, must take place before there is a lien upon
the property.”

WHEN PURCHASE MAY BE MADE—A bona fide pur-
chaser at a sale under an execution obtains a good title
although the judgment is fraudulent A purchaser
with notice of the fraud will get a good title when no
debts contracted prior to his purchase remain unpaid.‘
A purchaser without notice of the fraud may sell the
property to a person who has notice, for the law does
not know of an unencumbered estate which is forfeited
by alienation or for which the owner can not pass a
good title to a purchaser.”

TRANSFER TO CREDITOR.—Until there is a lien or
seizure by virtue of some legal proceeding, the grantee
can do all that the debtor could have done had he re-
tained the property. He may, therefore, sell or
mortgage it to the creditors of the grantor. As between
the debtor and the grantee, the power of the grantee to
convey needs no recognition or addition whatever, and
his right to do so in favor of a creditor is as between

 

* Wood v. Jackson, 8 Wend. 9; Bentley v. Harris, 2 Gratt. 357; Hus-
ton v. Cantril, 11 Leigh, 186; East Ind. Co. y. Clavell, Gilb. 37; 8. c. Prec.
Ch. 877; s: c. 28 L. J. Ch. 719; George v. Milbanke, 9 Ves. 189; Martyn
v. McNamara, 4 Dr. & War. 411; Hopkirk v. Randolph, 2 Brock. 182;
vide Stokes v. Jones, 18 Ala. 734; 8. c. 21 Ala. 731; Miller vy. Thompson,
8 Port. 196 ; O’Brien v. Coulter, 2 Blackf. 421,

* Fones y. Rice, 9 Gratt. 568.

® Griffin v. Wardlaw, Harp. 481; Imray v. Magnay, 11 M. & W.
267.

* Toole v. Darden 6 Ired. Eq. 394.

° Mateer v. Hissim, 3 Penna. 160; Wilson v. Ayer, 7 Me. 207.

31
482 BONA FIDE PURCHASERS.

the parties to the transaction unquestionable. The
assent of the debtor is not of the slightest value so far
as power is concerned. By the transfer the debtor
assents in fact to whatever the grantee may choose to
do with the property, and he effectually assents in law
to whatever the grantee may honestly do with it.
Whenever the grantee does that which the law would
compel him to do, there is no reason for disturbing his
act, and, therefore, if he applies it to pay the demand
of a creditor the transfer will be good to that extent, be-
cause the property receives the same direction and ap-
plication which the law would give it upon declaring
the transfer void. The creditor, moreover, will receive
a good title although he has full knowledge of the fraud.?
The creditor, however, must act in good faith’ If he
takes an absolute deed and pays the grantee the differ.
ence between the amount of his debt and the value of
the property, he will not obtain a good title unless the
sum so paid is so small that the desire to obtain satis-
faction of his claim constitutes the real inducement to
the transaction.» The transfer to the creditor must,
moreover, be made in the consummation of an honest
and laudable purpose on the part of the grantee. If
it is made not for the purpose of payment or security,
but in consideration of an assignment of the debt to
him, it does not come under the protection of the prin-
ciple that permits a creditor to obtain payment
out of the property in whosesoever hands it may

 

‘Webb v. Brown, 3 Ohio St. R. 246.

* Boyd v. Brown, 17 Pick. 453; Webb v. Brown, 3 Ohio St. R. 246;
Stark v. Ward, 3 Penn. 328; Agricultural Bank vy. Dorsey, 1 Freem. Ch.
338; vide Waggoner v. Cooley, 17 Ill. 289.

* Copenheaver v. Huffaker, 6 B. Mon. 18; Brown v. Webb, 20 Ohio,
389,

‘ Baker vy. Bliss, 39 N. Y. 70.
BONA FIDE PURCHASERS. 483

be If a fraudulent mortgage is made by a debt-
or, the creditors to whom he transfers the mortgage

notes will not have a prior claim upon the prop-
erty.’

 

> Waggoner v. Cooley, 17 Ill. 239.

? Johnston v. Dick, 27 Miss. 277; vide Davis v. Gibbon, 24 Iowa,
257,
CHAPTER XVIII.

WHO ARE CREDITORS.

CLAIM MUST BE CAPABLE OF ENFORCEMENT.—The
statute by express terms makes a fraudulent transfer
void as against creditors and others who have just and
lawful actions, suits, debts, accounts, damages, penalties,
forfeitures, heriots, mortuaries, or reliefs. The sole ob-
ject of the statute is to protect lawful debts, claims, or
demands, and not those which are unlawful or pretended,
and which have no foundation in law or justice. A
pretended claim,’ and a demand founded upon an illegal
consideration,’ or which can not for any other reason be
enforced,’ are not, therefore, within its protection. The
law, however, does not permit a debtor to determine
whether a claim is just or unjust. That question is one
which must be settled by the judicial tribunal alone.
It will not do to allow a man’s preponderating self in-
terest to decide which of his debts are just and which
unjust, for under such a rule he might decide his debts
to be unjust when he could no longer procrastinate pay-
ment.*

LisEraL constRuction.—The statute by the words
“creditors and others” embraces others than those who

 

? Baker v. Gilman, 52 Barb. 26.

? Alexander v. Gould, 1 Mass. 165; Fuller v. Bean, 30 N. H. 181; Han-
son vy. Power, 8 Dana, 91; Bruggerman v. Hoerr, 7 Minn. 337.

* Hart v. Hart, 5 Watts, 106; Edwards v. M’Gee, 81 Miss. 143.

‘Brady vy. Briscoe, 2 J. J. Marsh. 212 ; Hook v. Mowre, 17 Iowa,
195.
WHO ARE CREDITORS. 485

are strictly and technically creditors! Even the word
“creditor” does not receive a strict definition, for a
party who is not strictly speaking a creditor may stand
in the equity of a creditor and have an interest that may
be defrauded.’ The statute protects all just and lawful
actions, suits, debts, accounts, damages, penalties, and
forfeitures, and consequently all persons having such
interests must be included in the phrase “ creditors and
others.”*

CHARACTER IMMATERIAL.—The character of the claim,
if it is just and lawful, is immaterial. It need not be
due, for although the holder can not maintain an action
until it is due, he, nevertheless, has an interest in the
property as a fund out of which the demand ought to
be paid* A contingent claim is as fully protected
as one that is absolute.” A liability as surety is within
the statute as much as a liability as principal.® The
statute embraces all pecuniary damages incurred by
reason of the obligation of a contract, whether of an as-
certained amount or only sounding in damages, and
whether actually asserted or only demandable.’ It in-

 

1 Feigley v. Feigley, 7 Md. 537; Shontz v. Brown, 27 Penn, 123.

? Shontz v. Brown, 27 Penn. 123; Hutchinson v. Kelly, 1 Rob. 123;
Walradt v. Brown, i Gilman, 397.

’ Twyne’s Case, 3 Co. 80; Walradt v. Brown, 1 Gilman, 397; Alston
y. Rowles, 13 Fla. 117.

4 Howe v. Ward, 4 Me. 195; Cook v. Johnson, 1 Beasley, 51; Mott v.
Danforth, 6 Watts, 304.

° Seward v. Jackson, 8 Cow. 406; s. c. 5 Cow. 67; Van Wyck v. Se-
ward, 18 Wend. 375; 8. c. 6 Paige, 62; 8. c. 1 Edw. 327; Shontz v.
Brown, 27 Penn. 123; McLaughlin v. Bank of Potomac, How. 220;
Woodley v. Abby, 5 Call. 336; Gannard v. Eslava, 20 Ala. 7382; Bay v.
Cook, 31 Ill. 886; Cook v. Johnson, 1 Beasley, 51; Manhattan Co. v. Os-
good, 15 Johns. 162; 8. c. 3 Cow. 612.

® Russell v. Stinson, 3 Hey, 1; Carl v. Smith, 28 Leg. Int. 866; Crane
v. Stickles, 15 Vt. 252; Hutchinson v. Kelly, 1 Rob. 123; Curd v. Lewis,
% Gratt. 185; Gibson v. Love, 4 Fla. 217; Bay v. Cook, 31 Ill. 336.

7 Hutchinson v. Kelly, 1 Rob, 123.
486 WHO ARE CREDITORS.

cludes voluntary bonds,’ and claims which are payable
after the decease of the debtor.’ Its protection extends
to an action for slander,’ or atort,* a breach of a promise
to marry,’ the support of a bastard child,’ a false rep-
resentation,’ a demand or forfeiture due to the State
for offences,* and a claim for usurious interest.?

FEME COVERT AND oTHERS.—The claim of a feme covert
against her husband under a marriage settlement,” or in
proceedings instituted to obtain a divorce and alimony,”
is within the statute. A stockholder is not allowed to

 

* Adams vy. Hallett, L. R. 6 Eq. 468; Hanson v. Buckner, 4 Dana,
251.

? Adams vy. Hallett, L. R. 6 Eq. 468; Rider v. Kidder, 10 Ves. 360;
12 Ves. 202; s. c. 13 Ves, 123; vide Henderson v. Dodd, 1 Bailey Ch. 188.

* Jackson v. Myers, 18 Johns. 425; Lillard v. McGee, 4 Bibb. 165;
Hord v. Rust, 4 Bibb. 231; Fowler v. Frisbie, 8 Conn. 320; Walradt v.
Brown, 1 Gilman, 397; Hall vy. Sands, 52 Me. 355; Langford v. Fly, 7:
Humph. 585; Johnson y. Brandis, 1 Smith, 268; Wright v. Brandis, 1
Ind. 386; Farnsworth v. Bell, 5 Sneed, 531; Rogers v. Evans, 3 Ind.
574.

* Jackson vy. Mather, 7 Cow. 301; Paul v. Crooker, 8 N. H. 288; Mc-
Lean y. Morgan, 3 B. Mon. 282; Lewkner v. Freeman, 1 Eq. Cas. Abr. 149;
8. C, 2 Freem, 236; s. c. Prec. Ch. 105; M’Erwin vy. Benning, 1 Hawks. 474;
Fox v. Hills, 1 Conn. 295; Greer v. Wright, 6 Gratt. 154; Wilcox v. Fitch,
20 Johns. 472; Foote v. Cobb, 18 Ala. 585; Patrick y. Ford, 5 Sneed, 582
note; Vance v. Smith, 2 Heisk, 343; Barling v. Bishopp, 29 Beav. 417.

* Lowry v. Pinson, 2 Bailey, 324; Smith v. Culbertson, 9 Rich. 106.

° Damon y. Bryant, 2 Pick. 411.

" Miner v. Warner, 2 Grant. 448; 8. c. 2 Phila. 124.

* Rex v. Nottingham, Lane, 42; State v. Fife, 2 Bailey, 337; Jones v.
Ashurst, Skin, 357; Morewood y. Wilkes,6 CO. & P. 144; Shaw v. Bran,
1 Stark, 319; Saunders v. Wharton, 82 L. J. (Ch.) 224; s.c. 1 N. R. 256;
Perkins v. Bradley, 1 Hare, 219; 8.0. 6 Jur, 254.

* Heath v. Page, 68 Penn. 280.

* Rider v. Kidder, 10 Ves. 360; 8. c. 12 Ves. 202; 8. c. 18 Ves. 123,

" Feigley v. Feigley, 7 Md. 587; Blenkinsopp vy. Blenkinsopp, 1 D. M.
& G, 495; 8. c. 12 Beav. 568; 8.0. 21 L. J. Ch. 404; Taylor .v. Wyld, 8
Beay. 159; Claggett v. Gibson, 3 Cranch C. C. 359; Boils v. Boils, 1 Cold.
284; Brooks v. Caughran, 8 Head, 464; Ruffing y. Tilton, 12 Ind. 259;
Livermore vy. Boutelle, 11 Gray, 217; Turner v. Tumer, 44 Ala, 437; Mor-
ison y. Morrison, 49 N. H. 69; Frakes vy. Brown, 2 Blackf. 295; Chase v.
‘Chase, 105 Mass. 885; Boughslough v. Bouslough, 68 Penn. 495,
WHO ARE CREDITORS. 487

transfer his property so as to defeat a liability imposed
upon him by statute for the debts of the corporation.!
An heir can not fraudulently alien assets which have
descended for the purpose of defeating his liability for
the debts of his ancestor? A transfer for the purpose
of defeating a sequestration,’ or an attachment,‘ is as
fraudulent as a transfer to defeat an execution. The re-
sponsibility for the acts of a partner, or of the principal
to whom an accommodation indorser lends his name,®
is a risk which the party who enters into such a con-
tract assumes and has no right to evade. The word
“forfeiture” in the statute is intended not only of a
forfeiture of an obligation, recognizance, or such like,
but to every thing which shall by law be forfeit to the
king or subject. Therefore, if a man, to prevent a for-
feiture for felony or by outlawry, makes a conveyance
of all his goods, and afterwards is attainted, or outlawed,
the goods are forfeited notwithstanding the convey-
ance.”

Rieur not pERsonaL.—The right to hold the trans-
fer void is not merely personal. A creditor can not
treat it as void except as to his demand. If he transfers
his claim, he can not impeach it any longer on the

 

? Marcy v. Clark, 17 Mass. 330.

? Gooch’s Case, 5 Co. 60; Leonard y. Bacon, Cro. Eliz. 234; Apharry
vy. Bodingham, Cro. Eliz. 350; Richardson y. Horton, 7 Beav. 112; Het-
field v. Jacques, 5 Halst. 259. ;

3 Hamblyn v. Ley, 3 Swanst. 301,n.; Coulston v. Gardinier, 3 Swanst.
279; Empringham v. Short, 3 Hare, 461.

4 Pendleton and Gustin’s Case, 1 Leon, 47; Getzler v. Saroni, 18 Ill.
511; Dixon v. Hill, 5 Mich. 404; Rinchey v. Stryker, 26 How. Pr. 75;
Van Kirk v. Wilds, 11 Barb. 520; Thayer v. Willett, 9 Abb. Pr. 325; 8,
c. 5 Bosw. 344; Swanzy v. Hunt, 2.N. & M. 211; Contra, Hall v. Stryker,
9 Abb. Pr. 342; s. c. 29 Barb. 105; Bentley v. Goodwin, 15 Abb. Pr. 82.

5 Thomson v. Dougherty, 12 8. & R. 448.

® Cook v. Johnson, 1 Beasley, 51.

™ Twyne’s Case, 3 Co. 80.
488 WHO ARE CREDITORS.

ground of fraud. But as to the demand or any suit
thereon, until paid or discharged, such a transfer is
utterly void. Whoever may become the owner of the
debt can enforce it against the property.’ The transfer
is void not only against creditors, but against those who
represent creditors. It is void as against sheriffs,’ pur-
chasers at a sale under an execution,® assignees in bank-
ruptey,‘ and receivers appointed in proceedings sup-
plemental to an execution.

AT WHAT TIME AccruES.—The distinction between
prior and subsequent creditors makes it important at
times to inquire into the date and origin of a demand.
It may be laid down as a general rule that all claims
which arise from contract, are in force from the date of
the agreement. The liability dates from that time, al-
though no demand accrues until a subsequent date.® A

 

? Warren y. Williams, 52 Me. 343.

? Turvill v. Tupper, Latch, 222; Schlussell v. Willets, 32 Barb. 615;
8. 0. 12 Abb. Pr. 397; 8. c. 22 How. Pr. 15; Hozey v. Buchanan, 16 Pet.
215; Clute v. Fitch, 25 Barb. 428; Pierce v. Jackson, 6 Mass. 242; Imray
v. Magnay, 11 M. & W. 267; Scarfe v. Halifax, 7 M. & W. 288.

® Cole v. White, 26 Wend. 511; 8. c. 24 Wend. 116; Barr v. Hatch,
3 Ohio, 527; King v. Bailey, 6 Mo. 575; s. c. 8 Mo. 332.

* Badger v. Story, 16 N. H. 168; Anderson v. Maltbie, 2 Ves. Jr. 244;
Carr v. Hilton, 1 Curt. 230; Ward v. Van Bokkelen, 2 Paige, 289; Giraud
v. Mazier, 13 La. An. 147; Nouvet v. Bollinger, 15 La. An. 293; Shackle-
ford vy. Collier, 6 Bush. 149; Grimsby v. Ball, 11 M. & W. 531; Pott v.
Todhunter, 2 Coll. 76; Butcher vy. Harrison, 4 B. & A. 129; Jamison v.
Chestnut, 8 Md. 84; Bradshaw v. Klein, 1 B. R. 146; 8. c. 1 L. T. B. 72;
in re Meyers, 1 B. R. 162; 8.0. 2 Bt. 424; in re Metzger, 2 B. R. 114;
Contra, Reavis v. Garner, 12 Ala. 661; Waters v. Dashiell, 1 Md. 455;
Robinson v. McDonnell, 2 B. & Ald. 134.

° Bostwick v. Beizer, 10 Abb. Pr. 197; Porter vy. Williams, 9 N. Y. 142;
s. c. 12 How. Pr. 107; Contra, Seymour v. Wilson, 16 Barb. 294; Hayner
vy. Fowler, 16 Barb. 300.

° Seward vy. Jackson, 8 Cow. 406 ; 8. c. 5 Cow. 67; Van Wyck v. Se-
ward, 18 Wend. 375; 8. c. 6 Paige, 62; 8. c. 1 Edw. 327; Gannard vy. Es-
lava, 20 Ala. 732; Black v. Caldwell, 4 Jones (N. C.), 150; Stone v. Myers,
9 Minn, 303; vide White v. Sansom, 3 Atk. 411; East Ind, Co. vy. Clavell,
4

4

WHO ARE OREDITORS. 489

covenant with a general warranty,! and a bond of con-
veyance,” take effect from the date of the instrument.
A surety is subrogated to all the rights of the creditor
whose claim he has paid. An indorser has the same
rights as the holder of a note The claim of a surety
against either the principal,> or against his co-surety,° is
referred to the date of the execution of the obligation.
A demand arising from a tort is in force from the time
of the commission of the wrong.’ A trustee becomes a
debtor as soon as he receives the trust fund.’ An ac-
commodation note dated anterior to the transfer, though
discounted subsequently, is regarded as a prior claim.?
A judgment for costs takes effect only from the rendition
of the judgment.” A judgment for a prior and subse-
quent demand, is a subsequent debt, for it can not be
apportioned.”

 

Gilb. 37; 8. c. Prec. Ch. 377; 8. c. 28 L. J. Ch. 719; Richardson v. Small-
wood, Jac. 552; Mountford v. Ranie, 2 Keble, 499; Fales v. Thompson,
1 Mass. 134,

* Gannard v. Eslava, 20 Ala. 732; Seward v. Jackson, 8 Cow. 406; 8.
c. 5 Cow. 67; Van Wyck v. Seward, 18 Wend. 375; s. c. 6 Paige, 62; 8. c.
1 Edw. 327; vide Bridgford v. Riddell, 55 Il]. 261.

? Stone v. Myers, 9 Minn. 308.

® Cato v. Hasley, 2 Stew. 214 ; Sargent v. Salmond, 27 Me. 589; Cho-
teau vy. Jones, 11 Ill. 301; Greene v. Starnes, 1 Heisk, 582; Hurdt v.
Courtenay, 4 Met. (Ky.) 139; Taylor v. Heriot, 4 Dessau. 227; Huston v.
Cantril, 11 Leigh, 136; Swindersine v. Miscally, 1 Bailey Ch. 304; Heighe
vy. Farmers’ Bank, 5H. & J. 68.

* Cramer v. Reford, 2 C. E. Green, 367.

5 Thompson y. Thompson, 19 Me. 244; Carlisle v. Rich, 8 N. H. 44.

® Howe v. Ward, 4 Me. 195; Sargent v. Salmond, 27 Me. 539; Ray-
mond v. Cook, 31 Tex. 373.

7 Walradt v. Brown, 1 Gilman, 397; Langford v. Fly, 7 Humph. 585 ;
Farnsworth v. Bell, 5 Sneed, 531; vide Meserve v. Dyer, 4 Me. 52; Slater
y. Sherman, 5 Bush, 206; Fowler v. Frisbie, 8 Conn. 320.

* McLemore v. Nuckolls, 37 Ala. 662.

® Williams v. Banks, 11 Md. 198; 8. o. 19 Md. 22.

0 Pelham y. Aldrich, 8 Gray, 515; Ogden y. Prentice, 33 Barb. 160.

1 Baker y. Gilman, 52 Barb. 26; Reed v. Woodman, 4 Me. 400; Usher
vy. Hazeltine, 5 Me. 471; Miller v. Miller, 23 Me. 22; Moritz v. Hoffman, 35

“ TIL 558; Quimly v. Dill, 40 Me, 528.
490 WHO ARE CREDITORS.

Evience To ANTEDATE.—A judgment is prima fa-
cie a claim only from the institution of the suit." The
legal presumption is that a note is executed by the
maker at the date upon its face, and that an indorse-
ment was made before the maturity of the note.’ In
the absence of proof, the origin of a debt is referred to
the date of the note* The rights of a creditor, how-
ever, arise from the fact that a debt is due. Any
change, therefore, of the evidence of the existence of the
debt does not exert any influence upon these rights.
Evidence may be introduced to show that a judgment
is founded upora prior claim. A note may be shown
to be given for a prior account,’ or in renewal of a prior
note.” A novation does not affect the rights under the
debt. A renewal by which a liability is created differ-
ent from that created by the original debt is a new
debt.’

 

1 Niller v. Johnson, 27 Md. 6.

? Williams v. Banks, 11 Md. 198; s. c. 19 Md. 22; Emery v. Vinall, 26
Me. 295.

° McDowell vy. Goldsmith, 6 Md. 319; s. c. 2 Md. Ch. 370 ; 25 Md. 214.

* Johnston v. Zane, 11 Gratt. 552.

° Hinds v. Longworth, 11 Wheat. 198; Harlan v. Barnes, 5 Dana, 219;
Williams v. Jones, 2 Ala. 314; Chandler v. Van Roeder, 24 How. 224.

° Moore v. Spence, 6 Ala. 506; Blue y. Penniston, 27 Mo, 272; vide
Bangor v. Warren, 34 Me. 324; Eigleberger vy. Kibler, 1 Hill Ch. 113;
Morsell v. Baden, 22 Md. 391.

"McLaughlin y. Bank of Potomac, 7 How. 220; Lowry v. Fisher, 2
Bush, 70.

® Gardner v. Baker, 25 Iowa, 343.

* Bank vy. Marchand, 2 T. U. Charlt. 247.
CHAPTER XIX.

INTERNATIONAL LAW.

Lex toct.—The validity of an instrument conveying
property is to be determined according to the laws of
the place where it is made If it is invalid by those
laws, it will not be valid anywhere Questions of evi-
dence pertain to the remedy and are decided by the lex
fori. Fraud may, therefore, be inferred from facts which
would not be conclusive in the State where the instru-
ment was executed.? A sale in an adjoining State to
which the property has been removed for the purpose
of evading an execution, will not purify the fraud.*

Lanp.—The title and disposition of real estate is ex-
clusively subject to the laws of the country where the
land is located, and a conveyance of it must conform to
those laws.’ The courts of one State have no jurisdic-

 

* Martin v. Hill, 12 Barb. 631; Fairbanks vy. Bloomfield, 5 Duer, 434;
Balto. & Ohio R. R. Co. v. Glenn, 28 Md. 287; French v. Hall, 9 N. H.
137; Livermore v. Jenckes, 21 How. 126; Barton v. Bolton, 3 Phila.
369.

? Fellows v. Commercial Bank, 6 Rob. (La.) 246; Graves v. Roy, 13
La. 454; Maberry v. Shisler, 1 Harring. 349.

3 Barton y. Bolton, 3 Phila. 369.

+ Watts v. Kilburn, 7 Geo. 356.

® Osborn v. Adams, 18 Pick. 245, Bentley v. Whittemore, 3 C. E.
Green, 866; Lamb vy. Fries, 2 Penn, 83; Evans v. Dunkelberger, 3 Grant,
184.
492 INTERNATIONAL LAW.

tion or authority to set aside a fraudulent conveyance
of land situate in another State.*

Persona PRopERTY.—It is one of the maxims of in-
ternational jurisprudence that personal property as a
rule has no situs, but appertains to the person of the
owner, and that as a consequence such owner can dis-
pose of it by any instrument or in any method and to
such uses as are authorized by the law of the place
where the conveyance is executed. The rule is not so
much a convenience as it is a necessity of trade, one of
those fundamental things without which traffic would
be in all its parts impeded. If the law of the locality
of personalty were to be taken as the criterion of the
legality of its transfer, it is evident the transmission
would often be attended with serious perplexity, for it
would on most occasions be quite impracticable for the
owner of the goods, or the creditor to whom the debt
was due, to ascertain with sufficient exactness the di
versified requirements of the local laws of the different
countries through which such goods might pass, or in
which the person of the debtor might at any moment
happen to be. The principle that personal effects have
no locality arises out of the necessities of trade. It is,
accordingly, held almost universally that an assignment
or transfer valid by the laws of the State where it is
made will be upheld everywhere? A debt has no situs

 

* Fetter v. Cirode, 4 B. Mon. 482; Nicholson y. Leavitt, 4 Sandf. 252;
vide D’Ivernois v. Leavitt, 23 Barb. 63.

* Noble v. Smith, 6 R. I. 446; Moore y. Willett, 35 Barb. 663; Van
Buskirk y. Warren, 39 N. Y. 119; 8. c. 384 Barb. 457; s. c. 18 Abb. Pr. 145;
Cage v. Wells, 7 Humph. 195; Fairbanks v. Bloomfield, 5 Duer, 484; Ack-
erman y. Cross, 40 Barb. 465; Richardson v. Leavitt, 1 La, An. 480; Cas-
kie v. Webster, 2 Wallace, Jr. 181; Law v. Mills, 18 Penn. 185; Speed v.
May, 17 Penn. 91; Frazier v. Fredericks, 4 Zab. 162 ; Russell v. Tunno, 11
Rich. 303; Hanford y. Paine, 9 A. L. Reg. 553; Robinson y. Rapelye, 2
INTERNATIONAL LAW. 493

and is deemed in contemplation of law to be attached
to and to follow the person of the creditor.

Srare sratuTes.—There is an exception to the rule
that a conveyance of personalty valid in the State
where it is made will be upheld everywhere. Every
State or nation possesses the power to pass laws for the
protection and security of its own citizens, and being
looked to for the protection of property within its terri-
torial limits, has the unquestionable right to adopt such
regulations for its transfer as may be deemed necessary
to protect and secure its own citizens from impositions
and fraud. And if such regulations are adopted in con-
flict with the general rule they will prevail. But a
construction should not be hastily given which would
lead to a conflict if an interpretation can be fairly made
to avoid it, or, in other words, there should be a clear
and manifest repugnance between them to justify the

 

Stew. 86; U.S. v. Bank of U. 8. 8 Rob. (La.) 262; Mowry v. Crocker, 6
Wis. 826; Newman v. Bagley, 16 Pick. 570; Bholen v. Cleveland, 5 Ma-
son, 174; U. 8. Bank v. Huth, 4 B. Mon. 423; Atwood v. Protection Ins.
Co. 14 Conn. 555; Hanford v. Paine, 32 Vt. 442; Walters v. Whitlock, 9
Fla. 86; Dundas v. Bowler, 3 McLean, 397; Houston v. Nowland, 7 G. &
J.480; Means v. Hapgood, i9 Pick. 105; Greene v. Mowry, 2 Bailey, 163;
West v. Tupper, 2 Bailey, 193; Ferguson v. Clifford, 37 N. H. 86; Liver-
more v. Jenckes, 21 How. 126; Born v. Shaw, 29 Penn. 288; Balto & Ohio
R. R. Co. v. Hoge, 34 Penn. 214; vide Woodward v. Gates, 9 Vt. 358;
Fishburne v. Kunhardt, 2 Spears, 556; Golden v. Cockril, 1 Kansas, 259;
Ingraham y. Geyer, 13 Mass. 146; Fox v. Adams, 5 Me, 245; The
Watchman, Ware, 232.

1 Atwood v. Protection Ins. Co. 14 Conn. 555 ; Sanderson y. Bradford,
10 N. H.260; Caskie v. Webster, 2 Wallace, Jr. 181; Walters v. Whitlock,
9 Fla. 86. ,

2 Zipcey v. Thompson, 1 Gray, 243; Ingraham v. Geyer, 13 Mass. 146;
Fall River Ironwork Co. v. Croade, 15 Pick. 11; Boyd v. Rockport Mills, 7
Gray, 406; Varnum v. Camp, 1 Green, 326; Richmondville Manuf. Co. 9
Conn. 487; Bryan v. Brisbin, 26 Mo. 423; Beirne v. Palton, 17 La, 589;
Stricker v. Tinkham, 35 Geo. 176; Guillander v. Howell, 85 N. Y. 657;

Hanford y. Paine, 32 Vt. 442.
%
494 INTERNATIONAL LAW.

courts to disregard the general rule which is respected
and regarded by all civilized nations upon the principles
of comity. The peace and harmony among States and
nations, and the mutual protection, security, and safety
of the rights of the citizens of each, demand that the
law of nations should not, on slight grounds, be impaired
or disregarded.1. Even when a transfer is invalid by
the laws of the State where the property is located, it
will, if valid by the laws of the State where it is made,
be binding upon the citizens of that State,’ and all
others except the citizens of the State for whose pro-
tection the laws were passed.’ Citizens of such State
who purchase claims after the transfer have only such
rights as their vendor had If a transfer is valid by
the laws of the State where it is made, and in which
the property is located, it will be valid everywhere.

Noricz to peptor.—In the case of an assignment of
a debt notice is necessary to charge the debtor with the
duty of payment to the assignee, and if without notice,
he pays the debt to the assignor or it is recovered by
process against him, he will be discharged from the debt.
Notice after attachment and prior to a recovery is suffi-
cient.°

 

*U. 8. Bank v. Huth, 4 B. Mon, 423; Hanford vy. Paine, 32 Vt. 442.

* Benedict v. Parmenter, 18 Gray, 88; Whipple v. Thayer, 16 Pick. 25;
Daniels v. Willard, 16 Pick. 86; Burlock v. Taylor, 16 Pick. 335; Moore
v. Bonnell, 31 N. J. 90; Maberry v. Shisler, 1 Harring. 349.

* Todd v. Bucknam, 11 Me. 41; Sanderson y. Bradford, 10 N. H. 260;
Forbes v. Scannell, 13 Cal. 242; vide Brown v. Knox, 6 Mo. 302.

* Richardson v, Forepaugh, 7 Gray, 646; Hunt y. Lathrop, 7 R. I. 58;
Todd v. Bucknam, 11 Me. 41.

* Reid v. Gray, 37 Penn. 508; Newman v. Bagley, 16 Pick. 570; Wales
v. Alden, 22 Pick. 245; Means v. Hapgood, 19 Pick. 105; Jones v. Tay-
lor, 30 Vt. 42; Forbes vy. Scannell, 13 Cal. 242; Goddard y. Winthrop, 8
Gray, 180; Benedict v. Parmenter, 18 Gray, 88; Varnum y. Camp, 1
Green, 326; vide Skiff v. Solace, 28 Vt. 279.

¢ ° Mowry v. Crocker, 6 Wis. 326; Noble v. Smith, 6 R. I. 446 ; Martin
INTERNATIONAL LAW. 495

When there is no evidence of what the foreign law
is, it will be assumed to be the same as that which gov-
erns the tribunal where the question arises.’

 

vy. Potter, 11 Gray, 37; Walters v. Whitlock, 9 Fla. 86; Bank v. Gettinger,
3 W. Va. 309; vide Martin v. Potter, 34 Vt. 87; Rice v. Courtis, 32 Vt.
460.

> Russell v. Tunno, 11 Rich. 303; Beirne v. Patton, 17 La. 589; Hurdt
v. Courtenay, 4 Met. (Ky.) 139; Green v. Trieber, 3 Md. 11; Sangston v.
Gaither, 3 Md. 40; Savage v. O’Neil, 43 N. Y. 298; Ferguson v. Clifford,
37 N. H. 86.
CHAPTER XX.

EXECUTIONS, JUDGMENTS, AND ATTACHMENTS.

Dernay In ExEcuTION.—The statute avoids all exe-
cutions issued or kept on foot with intent to delay,
hinder, or defraud creditors! The intent may be in-
ferred from circumstances, and if it is established the
levy loses its preference. The end and object of an ex-
ecution is to obtain satisfaction of the debt for which it
issues, and, being delivered to the proper officer, it gives
to the creditor a priority, because the law points out
the officer’s duty which is to execute it without delay.
Any act of the creditor which diverts the execution
from its legitimate purpose, renders it void against
other creditors, and deprives him of his right to pri-
ority.2 The delivery of an execution to a sheriff, with
instructions to do nothing under it, is no delivery, and
confers no privileges upon the creditor. If he instructs
the sheriff to make no seizure or levy until he gives him
further orders, or until a distant day, and in the mean
time another execution comes to the sheriff with orders
to proceed, the second writ will in law be deemed the
first in order.’ The fact that the prior execution was

 

? Snyder v. Kunkleman, 3 Penna. 487; Burnell y. Johnson, 9 Johns.
243; Howell v. Alkyn, 2 Rawle, 282.

? Berry v. Smith, 3 Wash. C. C. 60.

* Cook v. Wood, 1 Harrison, 254; Knower v. Barnard, 5 Hill, 377;
Patton vy. Hayter, 15 Ala. 18; Wood v. Gary, 5 Ala. 48; Branch Bank vy.
Robinson, 5 Ala. 623; Porter v. Cocke, Peck, 30; Freburger’s Appeal, 40
Penn. 244; Wise v. Darby, 9 Mo. 181; Field v. Liverman, 17 Mo. 218;
Kempland y. Macauley, Peake’s N. P. C. 65; Bradley v. Wyndham, 1
EXECUTIONS, JUDGMENTS, AND ATTACHMENTS. 497

intended to be enforced is immaterial.!' A direction to
the sheriff not to proceed to a sale unless urged on by
younger executions will likewise render an execution
void.’ A direction after a levy has the same effect as
a direction made before a levy? If a countermand is
given before the issuing of a second execution, the effi-
cacy of the first execution will be restored.* When the
direction is merely to delay for a stipulated time, the
execution will be good after the expiration of that time.®
A second execution will not be affected by the delay
under a prior execution upon the same judgment.®

A creditor has the right to issue an execution for
the purpose of being before other: creditors, and thus
securing or obtaining his debt. All that the law re-
quires is that a man, without meaning to get payment
himself, shall not hinder others from getting their
money.’ Consequently after he has sued out an execu-
tion, he is bound to be both prompt and honest in the
steps he takes to enforce it, Delay always raises a sus-
picion that an execution is set on foot to protect the
property from other creditors.

 

Wils. 44; Hickman v. Caldwell, 4 Rawle, 376; Smallcomb v. Bucking-
ham, 5 Mod. 375; 8. c. 1 Salk. 320; s.c. 1 Ld. Raym. 251; Kellogg v.
Griffin, 17 Johns, 274; Storm v. Woods, 11 Johns, 110; U.S. v. Conyng-
ham, 4 Dall. 358; Colby v. Cressy, 5 N. H. 287; vide Stirling v. Van Cleve,
7 Halst. 285; Swigert v. Thomas, 7 Dana, 220.

* Hunt v. Hooper, 12 M. & W. 664.

* Pringle v. Isaacs, 11 Price, 445; Weir v. Hale, 8 W. & S. 285; Free-
burger’s Appeal, 40 Penn. 244; Kimball v. Munger, 2 Hill, 364; vide Cum-
berland Bank v. Hann, 4 Harrison, 166; Stirling v. Van Cleve, 7 Halst.
285.

* Branch Bank vy. Broughton, 15 Ala. 127.

4 Berry v. Smith, 3 Wash. C. C. 60.

5 Benjamin v. Smith, 4 Wend. 332,

® Sterling v. Van Cleve, 7 Halst, 285.

7 Smith's Appeal, 2 Penn. 331.

* Lovick v. Crowder, 2 Man. & Ry. 84; s.c.8 B.& C. 182; West v.
Skip, 1 Ves. Sr. 239.

32
498 BXECUTIONS, JUDGMENTS, AND ATTACHMENTS.

DEBTOR’s POSSESSION AFTER LEVY.—The sheriff is
not bound to remove the property after he has made a
levy. He may leave it in the actual possession of the
debtor until the day of sale, and in such case the law
will consider the debtor as the sheriff ’s agent or bailiff?
If there is no intent to postpone the sale and the par-
ties act in good faith, the creditor may also consent that
the goods shall be left in the debtor’s possession.” The
debtor, however, can not be permitted to sell or
consume the property for his own benefit after the
levy.

Detay rn sEttinc.—Delay on the part of the sheriff
in enforcing an execution will not, of itself, postpone an
execution unless it is so long as to raise a presumption
of a consent on the part of the creditor. But if the

 

*Cumberland Bank vy. Hann, 4 Harrison, 166; Thompson v. Van
‘Vechten, 5 Abb. Pr. 458; Eberle v. Mayer, 1 Rawle, 866; Levy v. Wallis,
4 Dall. 167; Chancellor v. Phillips, 4 Dall. 218; Casher v. Peterson, 1
South. 317; Sterling vy. Van Cleve, 7 Halst. 285; Cox v. Jackson, 1 Hay.
(N. C.) 423; Howell v. Allyn, 2 Rawle, 282.

* Doty y. Turner, 8 Johns. 20; Rew v. Barber, 8 Cow. 272; Russell v.
Gibbs, 5 Cow. 890; Cumberland Bank v. Hann, 4 Harrison, 166; Sterling
v. Van Cleve, 7 Halst. 285; Howell v. Alkyn, 2 Rawle, 282; Cox vy.
M’Dougal, 2 Yeates, 434; Perit v. Webster, 2 Yeates, 524; Contra, Buck-
nal y. Roiston, Prec, Ch. 285; Commonwealth y. Stremback, 3 Rawle, 341;
Berry v. Smith, 3 Wash. C. C. 60; Lewis v. Smith, 2 8. &R. 142; Parker
v. Waugh, 34 Mo. 340.

* Matthews v. Warne, 6 Halst. 295; Williamson v. Johnston, 7 Halst.
86; Barnes v. Billington, 1 Wash. C. C. 29; Farrington v. Sinclair, 15
Johns. 428; Knox vy. Summers, 4 Yeates, 477; Guardians v. Lawrence, 4
Yeates, 194; Swigert v. Thomas, 7 Dana, 220 ; Earl’s Appeal, 13 Penn.
483; Cook v. Wood, 1 Harrison, 254 ; Cumberland Bank vy. Hann, 4 Har-
rison, 166; Bingham y. Young, 10 Penn. 395; o¢de Adams vy. Moseley, 3 -
Fla. 322.

“ Russell v. Gibbs, 5 Cow. 890; Society v. Hitchcock, 2 Browne, 333;
Smith’s Appeal, 2 Penn. 331; Cumberland Bank y. Hann, 4 Harrison, 166;
Mlerkimer Co, Bank vy. Brown, 6 Hill, 282; Thompson y. Van Vechten, 5
Abb. Pr. 458; vide Weir v, Hale, 3 W. & S. 285.
EXECUTIONS, JUDGMENTS, AND ATTACHMENTS. 499

time is unreasonably long, the execution will be void.!
Merely adjourning a sale does not amount to a waiver,
especially when it is done for the purpose of investiga-
ting a claim to the property, which is brought forward
on the day appointed for the sale*® A sale of wheat
growing in the ground may be postponed until it is fit
to be reaped.t| When hides are in vats undergoing the
process of tanning, the sale may be postponed until the
process is complete.°

Remepy against supemEenT.—A_ fraudulent judg-
ment may be attacked collaterally, for it is void as
against creditors.® It may also be set aside upon an
application to the court that rendered it.’ Such appli-
cation can only be made by a judgment creditor.’
When it is made by a proper party the court may di-
rect an issue to try the question of fraud.? The issue
must be in regard to the alleged fraud and not in re-
gard to the amount due.” If the judgment is found to

 

1 Lovick v. Crowder, 8 B. & C. 132; 8. c. 2 Man. & Ry. 84; Rice v.
Serjeant, 7 Mod. 37; Doty v. Turner, 8 Johns. 20; Russell v. Gibbs, 5 Cow.
390; Benjamin v. Smith, 4 Wend. 332; Earl’s Appeal, 13 Penn. 483;
Cumberland Bank y. Hann, 4 Harrison, 166; Berry v. Smith, 3 Wash. C.
C. 60.

? Paton v. Westervelt, 12 N. Y. Leg. Obs. 7.

’ Bush’s Appeal, 65 Penn. 363.

4 Whipple v. Foot, 2 Johns. 418.

* Power vy. Van Buren, 7 Cow. 560.

* Imray v. Magnay, 11 M. & W. 267; Wilhelmi v. Leonard, 13 Iowa,
330; Burns v. Morse, 6 Paige, 108; Hackett v. Manlove, 14 Cal. 85; vide
Tyler v. Leeds, 2 Stark. 218. —

7 Frasier v. Frasier, 9 Johns, 80; Austin vy. Brown, 1 Harrison,
268.

® Wintringham v. Wintringham, 20 Johns. 296.

* Whiting v. Johnston, 11 8. & R. 828; Clark v. Douglas, 62 Penn. 408;
Frasier v. Frasier, 9 Johns. 80; M’Neal v. Smith, 1 Yeates, 552; Geist v.
Geist, 2 Penn. 441; Sommer v. Sommer, 1 Watts, 303.

2 Numan v. Knapp, 5 Binn. 73.
500 EXECUTIONS, JUDGMENTS, AND ATTACHMENTS.

be fraudulent it can not be vacated on the record, for it
is good between the parties The doctrine that a pur-
chaser pendente lite is bound by a judgment does not
apply in favor of a fraudulent judgment.’

REMEDY AGAINST ExEcUTION.—A fraudulent execu-
tion, or an execution issued upon a fraudulent judg-
ment may be treated as null and void.’ As the man-
date of the writ to the sheriff is to bring the money
into court, the court has jurisdiction to determine the
priorities between conflicting executions, and may set
aside an execution that is fraudulent.* It may decide
the question in a summary way,’ but if there is any
doubt upon the question of fraud, it directs an issue to
try it.© The sheriff is not bound to try the question of
fraud or to decide which of two creditors should have
the preference, but he ought to stand indifferent be-
tween the parties and not lend himself to either. If he
lends his aid to one party and withholds it from the
other, he must stand or fall by the rights of the party
to whom he lends his aid." In an action against the
sheriff for making a false return evidence of fraud in a
prior judgment or execution is admissible when he has

 

* Dougherty’s Estate, 9 W. & 8. 189; Thompson’s Appeal, 57 Penn.
185.

? Falconer v. Jones, 8 Dev. 384; Haywood vy. Sledge, 3 Dev. 338.

® Lovick v. Crowder, 8 B. & C. 182; s.c. 2 Man. & Ry. 84; Christo-
pherson y. Burton, 3 Exch. 160; 8. c. 18 L. J. Exch. 60; Boardman v.
Keeler, 1 Aik. 158; Farrington v. Sinclair, 15 Johns. 429.

“Posey v. Underwood, 1 Hill, 262; Sutton v. Pettus, 4 Rich. 163;
Lovick v. Crowder, 2 Man. & Ry. 84; 8.c.8 B. & C. 182; Warmoll v.
Young, 5 B. & C. 660; s.c. 8 D. & R. 442; Williamson v. Johnston, 7
Halst. 86.

® Williamston v. Johnston, 7 Halst. 86.

* Barber y. Mitchell, 2 Dowl. P. C. 574; Matthews v. Wame, 6 Halst.
295; Williamston v. Johnston, 7 Halst. 86.

7 Warmoll v. Young, 5 B. & C. 660; s.o. 8D. & R. 442.
EXECUTIONS, JUDGMENTS, AND ATTACHMENTS. 501

notice of the fraud or could have discovered it by

reasonable diligence. Notice to the deputy is notice to
the sheriff himself”

ArtTacHMENts.— There must be an actual seizure to
constitute a valid attachment, and the property must
not be left under the control of the debtor’ If it can
not be removed without great injury, as hides in a vat,
or paper in the process of being manufactured, or iron
ore in an open field, a removal may be dispensed with,
but the sheriff must use due diligence to prevent it from
being withdrawn from his control.* An actual removal
is not indispensable. The debtor may, with the per-
mission of the sheriff, be allowed to use such articles as
will not be injured by the use.® Such use, however, is
a badge of fraud.’ Delay in enforcing an attachment is
also evidence of fraud.’ A prior attachment may be
set aside for fraud upon the motion of a subsequent at-
taching creditor.’

 

‘Imray v. Magnay, 11 M. & W. 267; Christopherson y. Burton, 3 Exch.
160; s.c.18 L. J. Exch. 60; Fairfield vy. Baldwin, 12 Pick. 388; Warmoll
v. Young, 5 B. & C. 660; 8. c. 8 D. & R, 442; vide Kempland v. Macaulay,
Peake, 65.

? Imray v. Magnay, 11 M. & W. 267.

® Baldwin v. Jackson, 12 Mass. 131,

‘Mills vy. Camp, 14 Conn. 219; Hemminway v. Wheeler, 14 Pick.
408.

® Baldwin v. Jackson, 12 Mass. 131; Train v. Wellington, 12 Mass.
495.

° Burrows v. Stoddard, 3 Conn. 160.

7 Reed v. Ennis, 4 Abb. Pr. 393.

® Smith v. Gettinger, 3 Geo. 140; Harding v. Harding, 25 Vt. 487;
Blaisdell v. Ladd, 14 N. H. 129; Buckman v. Buckman, 4 N. H. 319;
Webster v. Harper, 7 N. H. 594; Pike v. Pike, 24 N. H. 384; vide Whipple
vy. Cass, 8 Iowa, 126.
CHAPTER XXI.

EXECUTORS DE SON TORT.

WHEN GRANTEE Is.—When the grantee retains,’ or
takes the property after the death of the debtor, he may
be charged as executor de son tort? This is the only
way in which the property can be reached, because in
no other way can a judgment be obtained establishing
the debt and authorizing process against the property
as that of the deceased debtor. Unless the property,
therefore, could be reached in this way, the creditors
would be without remedy at law. There may be both
a rightful executor and an executor de son tort at the
same time,? and if the rightful executor is also a cred-
itor, he may sue the executor de son tort, and recover
his debt, and the fact that he is rightful executor will
not obstruct his action.‘

 

* Howland vy. Dews, R. M. Charlt. 383.

* Rol. Abr. 549, 13 H. 4 f. 4, pl. 9; Stokes’ Case, 8 Leon. 57; Stam-
ford’s Case, 1 Dal. 94; 8. c. 2 Leon. 228; Kitchin v. Dixon, Gouldsb. 116,
pl. 12; Edwards v. Harben, 2 T. R.587; Dorsey vy. Smithson, 6 H. & J.
61; Yardley v. Arnold, 1 Car. & M. 434; Sturdevant v. Davis, 9 Ired. 365;
Allen v. Kimball, 15 Me. 116; Crunkleton vy. Wilson, 1 Browne, 360;
Densler v. Edwards, 5 Ala, 831; Wilcox v. Watson, Cro. Eliz. 405; Clayton
v. Tucker, 20 Geo. 452; Howland v. Dews, R. M. Charlt. 883; Warren v.
Hall, 6 Dana, 450; vide King v. Lyman, 1 Root, 104.

* Dorsey v. Smithson, 6 H. & J. 61; Foster v. Waliace, 2 Mo. 231;
Chamberlayne v. Temple, 2 Rand. 384; Howland vy. Dews, R. M. Charlt.
383.

* Dorsey v. Smithson, 6 H. & J. 61; Shields v. Anderson, 3 Leigh, 729;
Osborne v. Moss, 7 Johns. 161.
EXECUTORS DE SON TORT. 503

It is only in the case of personal property that the
grantee can be so charged, for an intermeddling with
the real estate of the deceased will not make him an
executor de son tort.’ It has also been held that he
can not be so charged when the property has been
sold before the decease of the debtor, although he re-
tains the proceeds.’ He is as responsible when he ap-
plies the property to his own use as if he applies it to
other uses not sanctioned by law.?

How svzep.—An executor de son tort may be sued
wherever he may be found without reference to the
Jurisdiction in which the intermeddling with the prop.
erty took place. A person who takes the property of
the decedent in one State and there sells it without le-
gal authority, and removes to another without having
disbursed the proceeds in payment of debts or other-
wise legally accounted for them, may be charged as
executor de son tort in the latter State An executor
de son tort is, in most respects, considered and treated
as executor, and all lawful acts which he does, or pay-
ments which he makes in a due course of administra-
tion are allowed to him. The same form of action is
used against him. He is not described as a wrongful
executor, but simply alleged to be the executor. He
may be joined with the rightful executor in an action
against them. He, therefore, can plead any plea which
a rightful executor may. The form of the judgment
upon the plea of ne unques executor is de bonis testatoris
si vel non de bonis propris.” He can not, however, de-

 

1 King v. Lyman, 1 Root, 104.

? Morrill v. Morrill, 13 Me. 415.

5 Stephens v. Barnett, 7 Dana, 257.

4 Densler v. Edwards, 5 Ala. 31.

5 Howland v. Dews, R. M. Charlt. 383; Stephens v. Barnett, 7 Dana,
257.
504 EXECUTORS DE SON TORT.

rive any benefit from his wrongful act, and consequent-
ly can not retain for his debt.’

WHEN GRANTEE IS HEIR OR ADMINISTRATOR.—In
case of a fraudulent conveyance of land to the person
who becomes the debtor’s heir, the deed is deemed void
and he takes as heir,’ so far as creditors are concerned
and is liable for the debts of his ancestor. If the
transfer in such a case consists of personal property, he
may be considered as holding it either as heir or execu-
tor de son tort.2 When the grantee is also devisee the
property may be considered as assets by devise‘ If
the grantee is also executor the property is assets in his
hands.® Property fraudulently conveyed is a part of the
deceased. debtor's estate,’ and constitutes legal and not
equitable assets." When the grantee is neither heir
nor devisee, nor personal representative, the only rem-
edy of the creditor is against the thing granted or the
grantee.

 

? Shields v. Anderson, 8 Leigh, 729.

* Humberton v. Howgill, Hob. 72; O’Connor vy. Bernard, 2 Jo. 654;
Harrison v. Campbell, 6 Dana, 268.

* Warren v. Hall, 6 Dana, 450.

4 Manhattan Co. v. Osgood, 15 Johns, 162; 8. c. 8 Cow. 612.

* Burckmyers v. Mairs, Riley, 208; Marr v. Rucker, 1 Humph. 348;
Jackson v. Bowley, 1 Car. & M. 97; vide Backhouse v. Jett, 1 Brock.
500.

® Anon. 2 Rol. Rep. 173.

* Shee v. French, 3 Drew. 716.

* Ralls v. Graham, 4 Mon, 120; Harrison vy. Campbell, 6 Dana, 263.
CHAPTER XXII.

REMEDIES.

No INJUNCTION TO PREVENT SALE—lIt is only by
the acquisition of a lien that a creditor has ‘any vested
or specified right in the property of his debtor. Be
fore such lien is acquired the debtor has full dominion
over his property. He may convert one species of
property into another, and he may alienate to a pur-
chaser. The rights of the debtor and those of the cred-
itors are thus defined by positive rules, and the point at
which the power of the debtor ceases and the rights of
the creditors commence is clearly established. A cred-
itor without such lien can not obtain an injunction to
prevent the debtor from disposing of his property, al-
though he has reason to apprehend that such disposi-
tion may be fraudulent.’

AcTIONS AGAINST GRANTEE.—If a fraudulent dispo-
sition has actually been made by the debtor of his
property, a creditor can not, in the absence of special
legislation, bring an action in assumpsit,? or on the
case,® against those who combined and colluded with

 

1 Uhl v. Dillon, 10 Md. 500; Rich v. Levy, 16 Md. 74; Hubbard v.
Hubbard, 14 Md. 356; Moran v. Dawes, Hopk. 365; Wiggins v. Arm-
strong, 2 Johns. Ch. 144; Brooks v. Stone, 11 Abb. Pr. 220; s. c. 19 How.
Pr. 395.

? Aspinwall v. Jones, 17 Mo. 209; Kelsey v. Murphy, 26 Penn. 78.

8 Adler v. Fenton, 24 How. 407; Lamb v. Stone, 11 Pick. 527; Wel-
lington v. Small, 8 Cush. 145; Smith v. Blake, 1 Day, 258; Green v. Kim-
506 REMEDIES.

him. <Assumpsit will not lie, for there is neither an ex-
press promise nor a privity from which the law will
imply a promise to pay the debt of the creditor. An
action on the case can not be supported because the
damages are too contingent and remote. As a creditor
has no special title in or to the property of the debtor,
the only proof of loss or injury which he could make
would be that the debtor had fraudulently conveyed it
away without receiving any value for it with the in-
tent to avoid the payment of his demand, and that he
had no other means of obtaining payment. Upon such
proof he would not be entitled to recover the amount
of his debt, for that would still be subsisting, and
might yet becollected. Nor would he be entitled to re-
cover the value of the property conveyed, for to that he
has no better claim than other creditors. The only loss
or injury which could be shown would be that he has
been deprived of a chance or possibility of obtaining
payment from that property. The loss would not even
be so great as this, for he might still have a chance of
reaching the property or its proceeds in the hands of
the fraudulent holder. The value of his chance to se-
cure it and have it applied to the payment of his debt
while in the hands of the debtor is all that he has lost
and would be the only basis upon which a jury would
be authorized to estimate his damages. There are no
data, tables, or other means by which such a chance can
be estimated. The loss or injury is too uncertain and
remote for legal estimation. The action can only be
maintained by proof of a direct, certain, and material

 

ble, 6 Blackf. 552; Gardiner v. Sherrod, 2 Hawks. 178; Moody v. Burton,
27 Me. 427; Mowry v. Schroder, 4 Strobh. 69; Contra, Penrod v. Morri-
son, 2 Penna. 126; Mott v. Danforth, 6 Watts, 304; Meredith v. Benning,
1H. & M. 585; Hopkins v. Beebe, 26 Penn. 85; Kelsey v. Murphy, 26
Penn. 78.
REMEDIES. 507

injury. If the creditor, however, has a lien upon the
property which has been defeated by the transfer, his
damages are sufficiently direct to sustain the action.!

CHANGE oF REMEDY.—When the debtor institutes
proceedings to reach the property fraudulently con-
veyed, he may resort to the remedy in force at the time
the transfer was made, or any remedy which has been
subsequently given. His rights are not affected by the
fact that by a subsequent improvement or alteration in
the law a better and more effectual or different mode of
reaching the property has been created.?

Actions at Ltaw.—A fraudulent transfer is void at
law as well as in equity. It is treated as a nullity
everywhere, and a court of law takes cognizance of the.
fraud as well a court of equity. In suits at law the
question is generally tried in a suit against the sheriff
for a false return if he omits to levy, or in an action of
trespass or trover if he improperly levies upon the goods
of a third person, or by an action directly against the
execution creditor for directing the levy, or in trover or
detinue against the purchaser at the sheriff’s sale, or in
an attachment suit. In relation to real estate the ques-
tion is usually tried in an action of ejectment by the
purchaser under the sheriff against the tenant in pos-
session claiming under the disputed title. There are
some instances where the remedy at law is deficient.
Thus there is no remedy at law when the property can.
not be taken on execution or by attachment. In some
States it is also held that property fraudulently pur-
chased in the name of another can not be reached in an

 

Smith v. Tonstall, Carthew, 35 Yates v. Joyce, 11 Johns. 136; Adams
v. Paige, 7 Pick. 542; Pickett v. Pickett, 2 Hill Ch. 470.

2 Blenkinsopp v. Blenkinsopp, 1 D. M. & G. 495; 8. c. 12 Beav. 568;
8. c. 21 L. J. Ch. 401.
508 REMEDIES.

action at law.!_ In general, however, relief may be had
at law as well as in equity, and the determination of the
question of fraud can not be withdrawn from the forum
which the creditor selects? Fraud may be given in
evidence under a general issue which raises the question
of title to the property.2 When a bond of conveyance
is fraudulent, its validity can only be tested by a sale
and not by an attachment.‘

But in EQurry.—The remedy most frequently used.
is a bill in equity, because a court of equity sifts the
conscience of the parties and removes the cloud from
the title. Fraud constitutes the most ancient founda-
tion of its jurisdiction,> and is a sufficient ground
for its interposition. It may grant relief although
there is ample remedy at law, for no relief is ade-
quate except that which removes the fraudulent title.
The relief in equity is different and may be more

 

1Howe v. Bishop, 8 Met. 26; Garfield v. Hatmaker, 15 N. Y. 475;
Page v. Goodman, 8 Ired. Eq. 16; Worth v. York, 13 Ired. 206; Davis
v. M’Kinney, 5 Ala. 719; Davis v. Tibbetts, 39 Me. 279; Gray v. Faris, 7
Yerg. 155; Dewey v. Long, 25 Vt. 564; Gowing v. Rich, 1 Ired. 553;
Garrett v. Rhame, 9 Rich. 407; Jimmerson v. Duncan, 3 Jones, (N. C.) 537;
Low v. Marco, 53 Me. 45; Webster v. Folsom, 58 Me. 230; Hamilton v.
Cone, 99 Mass. 478; Contra, Guthrie v. Gardner, 9 Wend. 414; Arnot v.
Beadle, 1 Hill. & D. 181; Tevis v. Doe, 3 Ind. 129; Pennington v. Clif-
ton, 11 Ind.162; Kimmel v. M’Right, 2 Penn. 88; Coleman v. Cocke, 6
Rand. 618; Cecil Bank vy. Snively, 23 Md. 253; Cutter v. Griswold, Walk.
Ch. 487; Roe v. Irwin, 82 Geo. 39; Godding v. Brackett, 34 Me. 27;
Hunt v. Blodgett, 17 Ill. 583.

? Marriott v. Givens, 8 Ala. 694,

* Gooch’s Case, 5 Co. 60; Ashby v. Minnitt, 8 A. & E. 121.

* Stewart v. Coder, 11 Penn, 90.

° Hungerford y. Earle, 2 Vern. 261; Hartshorne v. Eames, 81 Me. 93;
Lillard v. M’Gee, 4 Bibb. 165.

* Tappan v. Evans, 11 N. H. 311; Bennett v. Musgrove, 2 Ves. Sr. 51;
Dodge v. Griswold, 8 N. H. 425; Blenkinsopp v. Blenkinsopp, 1 D. M. &
G. 495; Sheafe v. Sheafe, 40 N. H. 516; Jones v. Henry, 3 Litt. 427;
Mountford y. Taylor, 6 Ves. 788; Lewkner y. Freeman, 2 Freem. 236 ;
REMEDIES. 509

beneficial than that given by the law. But jurisdiction
is not assumed upon the ground either that the subject
is appropriate to a court of equity as a court of pecu-
liar jurisdiction, or because that court proceeds upon an
interpretation of the statute distinct and different from
that given at law.’ On the contrary it is entertained in
equity notwithstanding it exists at law, and thus enter-
tained because such deceitful practices dishonest in their
concoction, progress, and consummation are so abhor.
‘rent to every tribunal of justice that every tribunal has
authority and is bound to relieve against them accord-
to their respective capacities and methods of proceeding,
and because the relief peculiar to a court of equity is
more perfect than at law.’

‘WHEN NO REMEDY AT LAwW.—There are some cases
where a remedy will be given in equity even though
there is none at law. If the debtor fraudulently pur-
chases property in the name of another, equity treats
the grantee as trustee for the creditors, and subjects the
property to their demands.2 A court of equity will

 

Planters’ Bank v. Walker, 7 Ala. 926; Sheppard v. Iverson, 12 Ala. 97;
Traip v. Gould, 15 Me. 82; Bean vy. Smith, 2 Mason, 252; Lillard v.
W Gee, 4 Bibb. 165 ; Buck v. Sherman, 2 Doug. 176 ; Fowler v. McCartney,
27 Miss. 509; Cook v. Johnson, 1 Beasley, 51; Musselman y. Kent, 33 Ind.
452; Cox v. Dunham, 4 Halst. Ch. 594; Swift v. Avents,4 Cal. 390;
Brandon v. Gowring, 6 Rich. Eq. 5; Abbey v. Banks, 31 Miss. 43; Phil-
lips v. Wesson, 16 Geo. 137. ;

1 Russell vy. Hammond, 1 Atk. 13.

? Dobson v. Erwin, 1 Dev. & Bat. 569.

> Godbold v. Lambert, 8 Rich. Eq. 155; Odenheimer v. Hanson, 4
M’Lean, 437; Patterson v. Campbell, 9 Ala. 933; State Bank v. Harrow,
26 Iowa, 426; Smith v. McCann, 24 How. 398; Gardiner Bank v. Wheat-
on, 8 Me. 373; Smith v. Parker, 41 Me. 452; Bertrand y. Elder, 23 Ark.
494; Corey v. Greene, 51 Me. 114; Marshall v. Marshall, 2 Bush. 415 ;
Brown v. M’Donald, 1 Hill Ch. 297; Halbert v. Grant, 4 Mon. 580; Dock-
ray v. Mason, 48 Me. 178; Bay v. Cook, 31 III. 336; Belford v. Crane, 1
510 REMEDIES.

also afford a remedy against choses in action, stock, and
other species of property not liable to an execution at
law. Any distinction between property which may
and property which may not be taken on execution is
inconsistent with the rights which result from the rela-
tion of debtor and creditor, and has no foundation in
just reasoning. It makes the rights of the creditors de-
pend upon the form and character which the fraud or
caprice of the debtor may give to his property. It is
difficult to perceive any solid reason why the intangible
property and effects of a debtor shall not be subjected
to the payment of his debts equally with his chattels,
which may be the subject of seizure and sale under an
execution at law. The abstract rights of the creditors
are as perfect in the one case asin the other. The spirit of
an enlightened jurisprudence requires that the property
rights and interests of a debtor, whatever may be their
form, if they have an ascertained value, shall be subject
to the payment of his debts. Any other rule leads to
fraud upon the creditors and encourages dishonesty in
the debtor, who would only have to convert his prop-
erty into the bond or promissory note of a third person
or into stock of some kind and then settle the same upon
his family in order to obtain a perfect immunity from
his creditors." A court of equity, therefore, for the

 

C. E. Green, 265 ; Peay v. Sublet, 1 Mo. 449; Newell v. Morgan, 2 Harring.
225; Demaru v. Driskell, 3 Blackf. 115; McDowell v. Cochran, 11 Il. 31;
Walcott v. Almy, 6 McLean, 23; Gentry v. Harper, 2 Jones Eq. 177;
Rucker v. Abell, 8 B. Mon. 566; Gordon vy. Lowell, 21 Me. 251.

Wright v. Petrie, 15. & M. Ch. 282; Green v. Tantum, 4 C. E. Green,
105; 8. c. 6 C. E, Green, 364; Alexander v. Tams, 13 Ill. 221; Odenheimer v.
Hanson, 4 McLean, 437; Tappan v. Evans, 11 N. H. 311; Chase v. Searles,
45 N. H. 511; Weed v. Pierce, 9 Cow. 722; Taylor v. Jones, 2 Atk. 600;
Catchings v. Manlove, 89 Miss. 655; Partridge v. Gopp, Ambl. 596; Had-
den v. Spader, 5 Johns. Ch. 280; s.c. 20 Johns. 554 ; Hartshorne v. Eames,
31 Me, 98; West v. Saunglers, 1 A. K. Marsh, 108; Bean vy. Smith, 2 Mason,
REMEDIES. 511

purpose of enforcing justice, holds the fraudulent
grantee as the trustee of those whom he defrauds, and
takes jurisdiction to administer this trust.! Wherever
choses in action, or other property of a similar character
are liable to éxecution or attachment, the jurisdiction
of a court of equity is unquestionable.”

CREDITOR MUST HAVE LIEN.—A fraudulent transfer
is valid against all persons except those who proceed to
appropriate the property by due course of law to the
satisfaction of the grantor’s debts, As it is valid
against a simple contract creditor, such creditor can not
ask the aid of a court of equity to set aside the transfer,
for it does not interfere with his rights. Equity has
jurisdiction of fraud, but it does not collect debts. A
creditor must establish his demand at law, and obtain
a lien upon the property, before the transfer interferes
with his rights or he has any title to claim relief in
equity. No creditor can be said to be delayed, hin-

 

252; Harlan v. Barnes, 5 Dana, 219; Bay Iron Co. v. Goodall, 39 N. H.
221; Chase v. Searles, 45 N. H. 511; Treadwell v. Brown, 44 N. H. 551;
Smithier v. Lewis, 1 Vern. 398; Anon. 1 Eq. Abr. 132; Sargent v. Sal-
mond, 27 Me. 539; Greer v. Wright, 6 Gratt. 154; Manchester v. McKee,
4 Gilman, 511; Contra, Dundas v. Dutens, 1 Ves. Jr. 196; 8. o. 2 Cox, 235;
Rider v. Kidder, 10 Ves. 360; s.c. 12 Ves, 202; 8. c. 13 Ves. 123; Matthews
v. Feaver, 1 Cox, 278; Grogan v. Cooke, 2 Ball. & B. 233 ; Sims v. Thomas,
12 A. & E. 536; 8.c.4P. & D. 283; 8.¢c. 9L. J. (N.S) 2 B. 399; Norcutt v.
Dodd, 1 Cr. & Ph. 100; Duffin v. Furness, Sel. Cas. Ch. 77; Caillaud v. Est-
wick, 1 Anst. 881; Stewart v. English, 6 Ind. 176; Cosby v. Ross, 3 J. J.
Marsh. 290; Winebrenner vy. Weisiger, 3 Mon. 32; Crozier v. Young, 3
Mon. 157; Bickley v. Norris, 2 Brev. 252. In some States this remedy is
regulated by statute, but such statutes are generally considered as merely
declaratory.

' Bean v. Smith, 2 Mason, 252.

? Patterson v. Campbell, 9 Ala. 983 ; Wright v. Petrie, 1 8. & M. Ch. 282.

*Meux v. Anthony, 11 Ark. 411; Smith v. Hurst, 10 Hare, 30;
M’Kinley v. Combs, 1 Mon. 105; Griffith v. Bank, 6 G. & J. 424; Day v.
Washburn, 24 How. 852; Jones v. Green, 1 Wall. 330; Coleman v. Croker,
1 Ves. Jr. 160; Collins v. Burton, 4 De G. & J. 612; Angell v. Draper, 1
Vern. 899 ; Brinkerhoff v, Brown, 4 Jobns, Ch, 671; 8.c. 6 Johns. Ch. 139;
512 REMEDIES.

dered, or defrauded by any conveyance until some prop-
erty out of which he has a specific right to be satisfied
is withdrawn from his reach by a fraudulent convey-
ance. Such specific right does not exist until he has
bound the property by judgment or by judgment and
execution as the case may be, and has shown that he is
defrauded by the conveyance in consequence of not
being able to procure satisfaction of his debt in a due
course of law. Then, and then only, he acquires a spe-
cific right to be satisfied out of the property conveyed,
and shows that he isa creditor, and is delayed, hindered,
and defrauded by the conveyance. When a party has
thus brought himself within the the terms of the statute,
he is entitled to the assistance of a court of equity to
remove the impediment to his legal rights. In this re-
spect there is no distinction between the creditors of an
individual and the creditors of a partnership.

 

Webster v. Clark, 25 Me. 318; Webster v. Withey, 25 Me. 326; Coleman v.
Cocke, 6 Rand. 618 ; Halbert v. Grant, 4 Mon. 580; Carter v. Bennett, 4 Fla.
283; Barrow v. Bailey, 5 Fla. 9; Hendricks v. Robinson, 2 Johns. Ch. 283;
8.c.17 Johns. 438; Beck v. Burdett, 1 Paige, 305 ; Jones v. Green, 1 Wall.
330; Cropsey v. McKinney, 80 Barb. 47; Neustadt v. Joel, 2 Duer, 530;
Willets v. Vandenburgh, 34 Barb. 424; Williams v. Brown, 4 Johns. Ch.
682; Lawton v. Levy, 2 Edw. 197; Reubens v. Joel, 13 N. Y. 488; Green-
wood v. Brodhead, 8 Barb. 593; Hall v. Joiner, 1 Rich. (N. S.) 186; Allen
v. Camp, 1 Mon. 231; Horner v. Zimmerman, 45 Ill. 14; Stone v. Manning,
2 Scam. 530; Rhodes v. Cousins, 6 Rand. 188; Tate v. Liggatt, 2 Leigh,
84; Kelso v. Blackburn, 3 Leigh, 299; Taylor v. Robinson, 7 Allen, 253;
Ishmael v. Parker, 13 Ill. 324; Duberry y. Clifton, Cooke, 328; Lister v.
Turner, 5 Hare, 281; Colman y. Croker,1 Ves. Jr. 160. It has recently
been decided in England that a creditor at large may file a bill but that
the court will only set the transfer aside and leave him to pursue his rem-
edy at law; Reese River Mining Co. v. Atwell, L. R. 7 Eq. 347. In the
following States the right to file a bill is given to a simple contract cred-
itor by statute, viz., Maryland, Code, Art. 16, sec. 85; Virginia, Code, ch.
179, sec. 2; West Virginia, Code, ch. 133; Tenn. Code, §§ 4288, 4289; vide
Crompton vy. Anthony, 18 Allen, 33.

* Dunlevy v. Tallmadge, 32 N. Y. 457; s. c. 29 How. Pr. 397; 8. 0. 18

Abb. Pr. 48; Young v. Frier, 1 Stockt, 465; vide Lawton v. Levy, 2 Edw.
97.
REMEDIES. 513

Waat Liens surricrent.—The claim for relief rests
upon the fact that the creditor has acquired a specific
lien upon the property, and that the obstruction inter-
posed prevents a sale at a fair valuation. The bill is
filed to remove the obstruction in order that the cred-
itor may obtain a full price for the property. He must,
therefore, proceed at law until he obtains such lien. In
the case of land a judgment alone is commonly sufii-
cient.' An execution, however, must be issued in order
to obtain a lien on personal property. If the execu-
tion is returned the lien is lost and a bill can not then
be filed? Another execution, however, may be issued,
and the lien thus acquired will be sufficient to support
a bill* A lien by attachment,’ or warrant of distress,‘
is as good as a lien by execution. Mere garnishment is
not sufficient.’ A party to whom a judgment is assigned

 

> Vasser vy. Henderson, 40 Miss. 519; McCalmont v. Lawrence, 1 Blatch.
232; Gates v. Boomer, 17 Wis. 455; Cornell v. Radway, 22 Wis. 260;
Mohawk Bank y. Atwater, 2 Paige, 54; Clarkson v. De Peyster, 3 Paige,
320; Shaw v. Dwight, 27 N. Y. 244; Dargan v. Waring, 11 Ala. 988;
Newman vy. Willetts, 52 Ill. 98; Weightman vy. Hatch, 17 Ill. 281. In the
following cases it has been held that an execution must be issued: N. A.
Ins. Co. v. Graham, 5 Sandf. 197; McCullough v. Colby, 5 Bosw. 477;
8. c. 4 Bosw. 603; Dana v. Haskill, 41 Me. 25.

? Jones v. Green, 1 Wall. 330; Clark v. Banner, 1 Dev. & Bat. Eq. 608;
Anon. Eq. Cas. Abr. 77, pl. 14; Thurmond v. Reese, 3 Kelly, 449; Ste-
phens v. Beall, 4 Geo. 319; Heye v. Bolles, 33 How. Pr. 266.

3 Forbes v. Logan, 4 Bosw. 475; Watrous v. Lathrop, 4 Sandf. 700;
vide Williams v. Hubbard, Walk. Ch. 28.

“ Cuyler v. Moreland, 7 Paige, 273.

* Hunt v. Field, 1 Stockt. 36; Heyneman v. Dannenberg, 6 Cal. 376 ;
Castile v. Bader, 23 Cal. 75; Dodge v. Griswold, 8 N. H. 425; Stone v.
Anderson, 26 N. H. 506; Heye v. Bolles, 2 Daly, 231; Falconer vy. Free-
man, 4 Sandf. Ch. 565; Scales v. Scott, 13 Cal. 76; Greenleaf v. Mum-
ford, 19 Abb. Pr. 469; s. c. 80 How. Pr. 80; vide Martin v. Michael,
23 Mo. 50; Melville v. Brown, 1 Harrison, 363; Mills v. Block, 30 Barb.
549; Mechanics’ Bank v. Dakin, 28 How. Pr. 502.

* Allen y. Camp, 1 Mon. 231; vide Belknap v. Hastings, 1 Denio,
190.

” Bigelow v. Andress, 31 Ill. 322.

33
514 REMEDIES.

after the issuing of an execution need not have a new
execution issued.’

RETURN OF EXECUTION UNSATISFIED WHEN PROPERTY
NOT LIABLE AT LAw.—There are several exceptions to
the rule which requires the creation of a lien prior to
the filing of a bill in equity. One exception is where
the property is such that it can not be taken on an ex-
ecution at law. The creditor’s right to relief in such
case depends upon the fact of his having exhausted his
legal remedies without being able to obtain satisfaction.
The best and the only evidence of this is the actual re-
turn of an execution unsatisfied. The creditor must ob-
tain judgment, issue an execution, and procure a return
of nulla bona before he can file a bill in equity to ob-
tain satisfaction out of the property of the debtor
which can not be reached at law.? A return before the
return day of the writ is sufficient if the bill is not filed
until after the return day. Whether a return before
the return day is sufficient alone, is a point upon which
the decisions vary.’ If property purchased in the name
of another is not liable to an execution at law, there
must be a return of the execution.°

 

> Hastings v. Palmer, Clarke, 52.

? Beck v. Burdett, 1 Paige, 305; Heacock v. Durand, 42 Ill. 230;
Clarkson v. De Peyster, 3 Paige, 320; Crippen v. Hudson, 13 N. Y. 161;
McElwain y. Willis, 9 Wend. 548; Taylor v. Persee, 15 How. Pr. 417; Beach
y. White, Walk. Ch. 495; Tappan v. Evans, 11 N. H. 311; Williams v.
Hubbard, Walk. Ch. 28; Brown v. Bank, 81 Miss. 454; Chittenden v.
Brewster, 2 Wall. 191; Jones v. Green, 1 Wall. 330; Green v. Tantum, 4
C. E. Green, 105; s. c. 6 C. E. Green, 364; Griffin v. Nitcher, 57 Me. 270;
McCartney v. Bostwick, 31 Barb. 390; s. c. 32 N. Y. 53.

“Forbes v. Waller, 4 Bosw. 475; 8. c. 25 N. Y. 430; Reynaud v.
O’Brien, 35 N. Y. 99; 8. 0. 25 How. Pr. 67; Suydam v. Beals, 4 McLean,
12; Knauth vy. Bassett, 34 Barb. 81.

* Forbes v. Waller, 25 N. Y. 480; 8. c. 4 Bosw. 475; 8. c. 25 How. Pr.
166; Bowen v. Parkhurst, 24 Ill. 257; vide Reynaud y. O’Brien, 25 How.
Pr, 67; 8, c. 35 N. Y. 99; Beach v. White, Walk. Ch. 495.

* Des Brisay v. Hogan, 53 Me. 554; Corey y. Greene, 51 Me. 114, Under
REMEDIES. 515

Second ExEcurIon.— Where the right to file a bill
to reach property not liable to seizure at law once ex-
ists by the return of an execution unsatisfied, if the
debtor has either real or personal property which is a
proper subject of sale on execution, but which is fraud-
ulently transferred or incumbered for the purpose of
protecting it from the execution of the creditor, and has
other property which can only be reached by the aid of
a court of equity, the creditor may sue out a second
execution so as to obtain a specific lien upon the prop-
erty which is subject to a sale thereon, and may then
file a bill for the double purpose of removing the ob-
struction which has been fraudulently interposed
against the execution at law, and also to reach other
property of the debtor which can not be sold on the
second execution."

Kiyp or supements.—A bill may be filed to enforce
a decree in equity,’ or a magistrate’s judgment,’ or a
judgment by confession,‘ as well as a regular judgment
at law. A judgment in an attachment suit when the
debtor has not been summoned,’ or a foreign judgment,’

 

the New York statutes there is, in such a case, a resulting trust, which
may be reached by simple contract creditors; McCartney v. Bostwick, 32
N. Y. 58; s. c. 81 Barb. 390; Wood vy. Robinson, 22 N. Y. 564; vide Ocean
Natl. Bank v. Olcott, 46 N. Y. 12.

1 Cuyler vy. Moreland, 7 Paige, 273; Wright v. Petrie, 1 8. & M. Ch.
282.

? Farnsworth v. Straster, 12 Ill. 482; Clarkson v. De Peyster, 3 Paige,
320; Weightman vy. Hatch, 17 Il. 281.

° Bailey v. Burton, 8 Wend. 339; Crippen v. Hudson, 13 N. Y. 161;
Harlan v. Barnes, 5 Dana, 219; Newdigate v. Lee, 9 Dana, 17; Ballentine
y. Beall, 3 Scam. 203.

* Neusbaum v. Klein, 24 N. Y. 325.

® Manchester y. McKee, 4 Gilman, 511; vide Bailey v. Burton, 8 Wend.
339.

* McCartney v. Bostwick, 31 Barb. 390; s.c. 32 N. Y. 58; Farned v.
Harris, 11 8. & M. 366; Berryman vy. Sullivan, 13 8. & M. 65; oéde Tarbell
v. Griggs, 3 Paige, 207; Bullitt v. Taylor, 34 Miss. 708.
516 REMEDIES.

or process that is void is not sufficient." Where a judg-
ment is recovered against joint debtors upon service of
process on any number less than the whole, a bill can
not be maintained to interfere with any disposition of
the separate property of those who have not been
served,? but a transfer of the joint property may be set
aside? In such case, however, the persons who have
not been served should be made parties.*

EquiTasLE DEMAND.—A second exception to the
rule which requires a party to obtain a lien is in the
case of a claim which is purely equitable and such as a
court of equity will take cognizance of in the first in-
stance. A party who holds such a claim may, when he
looks altogether and exclusively to a court of equity
and files a bill to enforce his demand, add a prayer for
an auxilliary decree to remove obstructions fraudulently
interposed to defeat or embarrass the remedial action
of the court.

WHEN DEBTOR pDiEs.—<A third exception to the rule
which requires a lien, is in a case where the debtor
dies before a judgment is obtained against him. In
such a case an action against his executor or adminis-
trator would be useless, for a judgment would not be
evidence for any purpose against the grantee, and after
as well as before its rendition an action against the
grantee would necessarily be upon the original debt,

 

‘ Guerin v. Hunt, 6 Min. 375; s, c. 8 Minn. 477.

* Bilhofer y. Heubach, 15 Abb. Pr. 143; Field v. Chapman, 15 Abb.
Pr. 484; 8. c. 14 Abb. Pr. 133.

* Bilhofer vy. Heubach, 15 Abb. Pr. 143.

* Howard vy. Sheldon, 11 Paige, 558.

* Halbert v. Grant, 4 Mon. 580; Waller v. Todd, 3 Dana, 503; vide
Williams y. Tipton, 5 Humph. 66; McDermott v. Blois, R. M. Charlt.
281.
REMEDIES. 517

and not upon the judgment.t An action against his
heirs would be equally nugatory, for they are only li-
able to creditors to the extent, interest, and right in the
real estate which descends to them from the debtor. A
fraudulent deed, however, binds the heirs as well as the
debtor, and upon an issue of riens per descent the judg-
ment would be in their favor.” A court of equity,
however, is authorized by the principles which regulate
its jurisdiction to interpose at whatever point in the
progress of the legal remedy, it may appear that the
creditor is actually obstructed by the fraudulent trans-
fer or its consequences. As there is no person at law
against whom a judgment can be obtained so as to affect
the property, the demand is dependent on equity for
its ascertainment and enforcement. A court of equity
will, therefore, take jurisdiction though there is no
judgment.’ A bill in such a case is not an application
for the exercise of the auxiliary jurisdiction of the
court, but is a part of its original jurisdiction in
equity.*

Executor DE son Tort.—This is the reason why it

 

1 Loomis v. Tifft. 16 Barb. 541; Bireley v. Staley, 5 G. & J. 482.

* Loomis y. Tifft, 16 Barb. 541.

3 Harrison v. Campbell, 6 Dana, 263; Bay v. Cook, 31 Ill. 336; Trippe
v. Ward, 2 Kelly, 304; Lynch v. Raleigh, 3 Ind. 273; Hagan v. Walker,
14 How. 29; Frazer v. Western, 1 Barb. Ch. 220; 8. c. 1 How. App. Cas.
448 ; Loomis v. Tifft, 16 Barb. 541; Steere v. Hoagland, 39 Ill. 264; Watts
y. Gayle, 20 Ala. 817; Pharis v. Leachman, 20 Ala. 662; Bireley v. Staley,
5 G. & J. 482; Snodgrass vy. Andrews, 30 Miss. 472; Winn v. Barnett, 31
Miss. 653; McDowell v. Cochran, 11 Ill. 31; O’Brien v. Coulter, 2 Blackf.
421; Merry vy. Fremon, 44 Mo, 518; Chamberlayne v. Temple, 2 Rand,
884 ; vide Parstowe v. Weedon, 1 Eq. Cas. Abr. 149; Brunsden v. Stratton,
Prec. Ch. 520; Brown v. McDonald, 1 Hill Ch. 297; Scriven v. Bostwick,
2 McCord. Ch. 410; Mugge v. Ewing, 54 Ill. 236.

‘Hagan v. Walker, 14 How. 29; Frazer v. Western, 1 Barb. Ch. 220;
s.c.1 How. App. Cas. 448; Hampson v. Sumner, 18 Ohio, 444; Mc-
Naughtin v. Lamb, 2 Ind. 642; Snodgrass v. Andrews, 30 Miss, 472.
518 REMEDIES.

is not necessary in the case of personal property to bind
it by an action against the grantee as executor de son
tort. All the creditors have a specific right to be satis-
fied out of the property of their deceased debtor in the
hands of his executor or administrator, if there is a
rightful executor or administrator, or, if not, in the
hands of his executor de son tort, or if there is a right-
ful executor or administrator, and also an executor de
son tort out of the debtor's property in the hands of the
latter, if there are not sufficient assets in the hands of
the former. This is in the nature of a lien, and the ex-
ecutor or administrator and executor de son tort are in
the nature of trustees for the creditors. A creditor has
a right, therefore, to go originally into a court of equity
against the grantee as executor de son tort for a dis-
covery, account, and satisfaction out of the assets in his
hands, and in that suit to establish his demand and to
show that he can not get satisfaction otherwise, and so
is hindered, delayed, and defrauded.*

Non-resipents.— Whether judgment must be ob-
tained against a non-resident before a bill can be filed
is a point upon which the decisions vary.”

WHEN OBJECTION MAY BE TAKEN.—The objection
that a party has not obtained a lien or exhausted his
remedy at law is one that may be taken at the hearing,’
and is not obviated by the rendition of a judgment
after the filing of the bill.t

WHEN RELIEF GRANTED.—A bill may be filed as
soon as a deed is executed, although it has not

 

* Chamberlayne v. Temple, 2 Rand. 884.

* Anderson y. Bradford, 5 J. J. Marsh. 69; Scott v. M’Millen, 1 Litt.
302; Greenway v. Thomas, 14 Ill. 271.

* Tappan v. Evans, 11 N. H. 311; Meux v. Anthony, 11 Ark, 411;
Brown y. Bank, 31 Miss. 454.

‘ Brown v. Bank, 31 Miss. 454,
REMEDIES. 519

been delivered or accepted, for the creditor is not
bound to levy upon the property and take the
risk of the litigation that may ensue.! A court of
equity will interpose to prevent the use of a fraudu-
lent judgment, but will not vacate it? The right to
impeach a fraudulent transfer is not affected by the
fact that the debtor may have other property. The
creditor has the choice of the part upon which he will
levy and the debtor can not take away the election.*
If the creditor, however, has a security, that may be
first applied to his debt before other property is appro-
priated towards its payment, he may be compelled to
exhaust the security.” A court of equity exercises some
discretion,’ and will not interfere where there is an
improper combination between the debtor and the
creditor to the prejudice of the grantee.’

Destor’s BANKRUPTCY.—If the debtor is declared a
bankrupt, the title to the property vests in his assignee.
Creditors can not levy upon it,* or claim property which
has otherwise been fraudulently withheld.® The as-
signee may file a bill in equity to set aside a fraudulent
conveyance,” and this right is vested in him exclusive-

 

' Gasper v. Bennett, 12 How. Pr. 417.

* Shaw v. Dwight, 27 N. Y. 244; Burns v. Morse, 6 Paige, 108; Clark
v. Bailey, 2 Strobh. Eq. 143.

° Kaupe v. Bridge, 2 Robt. 459.

4 Vasser v. Henderson, 40 Miss. 519; Wadsworth v. Havens, 3 Wend.
411; Wadsworth y. Williams, 100 Mass. 126; Gaylord v. Coruch, 5 Day,
228: Botsford v. Beers, 11 Conn. 369; wide Eigleberger v. Kibler, 1
Hill. Ch. 118; M’New v. Smith, 5 Gratt. 84.

5 Coutts v. Greenhow, 2 Munf. 368; s, c. 4 H. & M. 485.

° Bennett v. Musgrove, 2 Ves. Sr. 52.

7 Hemphill v. Hemphill, 34 Miss. 68.

® Williams v. Merritt, 103 Mass, 184.

° Codman vy. Freeman, 3 Cush. 806; vide Hollinshed y. Allen, 17 Penn.
275.

© Garr v. Hilton, 1 Curt. 230; Pratt v. Curtis, 6 B. R. 139; Bradshaw
y. Klein, 1 B. R. 146; Shirley v. Long, 6 Rand. 735 ; Shackleford v. Col-
520 REMEDIES.

ly Ifa creditor, however, has obtained a lien, he may
continue the prosecution of a suit instituted prior to the
commencement of the proceedings in bankruptcy.’
When the bill is filed by the assignee the creditors are
equitable though not necessary parties, and may be
joined? If the assignee declines to act, the creditors
may file a bill and make him a party defendant.*
They may also proceed in the same way when an ad-
ministrator who is authorized by law to institute such
proceedings declines to do so.°

Oruer PaRties.—A receiver appointed under proceed-
ings supplemental to an execution,’ and the sheriff,
when he has levied an attachment,’ may file a bill. An
assignee holding under a voluntary assignment can not.®
A party who has purchased at a sale under an execu-
tion may file a bill to remove the cloud on his title and
the impediment to his quiet enjoyment of the prop-
erty.’

 

lier, 6 Bush, 149; Englebert v. Blanjot, 2 Whart. 240; Weber v. Samuel,
7 Penn, 500.

> In re Meyers, 2 Bt. 424; s. c. 1B. R. 162; Stewart v. Isidor et al. 5
Abb. Pr. (N. &.) 68; s.c. 1B. R. 129; Goodwin y. Sharkey, 5 Abb. Pr.
(N. 8.) 64; Thomas yv. Phillips, 9 Penn. 355.

* Sedgwick vy. Menck, 6 Blatch. 156; s. c. 1 B. R. 204 ; Stewart v. Isi-
dor, 5 Abb. Pr. (N. 8.) 68; s.c. 1 B. R. 129; Payne v. Able, 7 Bush. 344;
Goldsmith y. Russell, 5D. M. & G. 547 ; Storm v. Waddell, 2 Sandf. Ch.
494; Tichenor v. Allen, 13 Gratt. 15; Felter v. Cirode, 4 B. Mon. 482;
vide Smith v. Gordon, 6 Law Rep. 813.

* Boone y. Hall, 7 Bush, 66.

* Sands v. Codwise, 4 Johns. 536.

* Bate v. Graham, 11 N. Y. 287.

* Porter v. Williams, 9 N. Y. 142; s. c. 12 How. Pr. 107; Hamlin v.
Wright, 23 Wis. 491.

” Kelly v. Lane, 42 Barb. 594; s. c. 18 Abb. Pr. 229; s. c. 28 How. Pr.
128.

* Bishop v. Halsey, 3 Abb. Pr. 400; vide Garretson v. Brown, 2 Dutch..
425 ; Simpson y. Warren, 55 Me. 18; Swift. v. Thompson, 9 Conn. 63.

* Bailey v. Burton, 8 Wend. 339; Frakes y. Brown, 2 Blackf. 295 ; Har-
. REMEDIES. 52k

JOINDER OF PARTIES COMPLAINANT.—One creditor
may file a bill in his own name and for his own bene-
fit, and need not make other creditors standing in the
same situation parties.’ It is immaterial if there is an
older judgment which constitutes a lien upon the prop-
erty, for the oldest judgment at law will have the pref-
erence notwithstanding any decree which may be made
in a suit to which the owner of that judgment is not a
party.? The sheriff and the creditor may unite, for each
has an interest in preventing a multiplicity of suits and
having the whole matter closed by a single controversy.
Several creditors may join in filing a bill, for they have
similar rights with respect to the property of their
debtor. It is, therefore, proper for them to unite in
the same suit for effecting the same end. Such a bill
is not multifarious, for it relates to one subject matter.*
The fact that one creditor may be entitled to additional
and further relief forms no objection to their uniting in
a bill for the purpose of obtaining the relief to which
they are all entitled.» The bill may be filed on behalf
of those who institute the proceedings alone or on be-
half of all who may choose to come in and participate
in the proceedings.6 A creditor and an administrator

 

rison v. Kramer, 3 Iowa, 548; Gerrish v. Mace, 9 Gray, 250; Contra,
Thigpen v. Pitt, 1 Jones Eq. 49.

1 Grover v. Wakeman, 11 Wend. 187; 8. c. 4 Paige, 23; Baker v. Bar-
tol, 6 Cal. 483; Edmeston v. Lyde, 1 Paige, 637; Ballentine y. Beall, 3:
Scam. 203.

2 Grover v. Wakeman, 4 Paige, 23; s. c. 11 Wend. 187.

8 Adams v. Davidson, 10 N. Y. 309.

‘ Lentilhon v. Moffat, 1 Edw. 451; Waller v. Todd, 3 Dana, 5038 ; Com-
stock v. Rayford, 18. & M. 423; Gannard v. Eslava, 20 Ala. 732; Brink-
erhoff vy. Brown, 6 Johns. Ch. 189; Clarkson v. De Peyster, 3 Paige, 3203.
Ruffing v. Tilton, 12 Ind. 259.

® Clarkson v. De Peyster, 3 Paige, 320.

® Bdmonstone vy. Lyde, 1 Paige, 637; Bireley v. Staley, 5 G. & J.
482,
522 REMEDIES.

of the grantee can not unite in the same bill to set
-aside a gift made prior to the grant.' The assignor of
a judgment may join with the assignee.’

JOINDER OF PARTIES DEFENDANT.—Creditors who
have liens may file a bill after the appointment of a
receiver, and make him a party. The debtor is a
necessary party, for it is his debt that is sought to be
collected, and his fraudulent conduct that requires in-
vestigation. The title also remains in him for the bene-
fit of creditors. If the debtor is deceased, an adminis-
trator should be appointed,’ and made a party defend-
ant, so as to account for the assets that may come to his
hands.® The debtor’s heirs need not be made parties,
for they have no interest in the property."

The grantee is a necessary party. If there is more
than one grantee, then all the grantees must be made
parties? When the fraudulent conveyance consists of

 

> Coleman v. Pinkard, 2 Humpb. 185.

° Beach v. White, Walk. Ch. 495.

* Gere v. Dibble, 17 How. Pr. 31,

* Lovejoy v. Irelan, 17 Md. 525; Gaylords v. Kelshaw, 1 Wall. 81;
fSewall v. Russell, 2 Paige, 175; Beardsley Scythe Co. v. Foster, 36 N. Y.
561; s. c. 34 How. Pr. 97; Lawrence v. Bank, 35 N. Y. 320; 8. c. 3 Robt.
142.

* Bachman y. Sepulveda, 39 Cal. 688; Scriven v. Bostick, 2 McCord
Ch. 410; Contra, Bireley v. Staley, 5 G. & J. 432.

° Peaslee v. Barney, 1 Chip. 331; Chamberlayne v. Temple, 2 Rand.
384; Simpson v. Simpson, 7 Humph. 275; Pharis v. Leachman, 20 Ala.
662; Bachman y. Sepulveda, 39 Cal. 388; McDowell v. Cochran, 11 IU.
81; Barton v. Bryant, 2 Ind. 189; Cobb v. Norwood, 11 Tex. 556; Snod-
grass v. Andrews, 30 Miss, 472; vide Merry v. Fremon, 44 Mo. 518; Dock-
ray v. Mason, 48 Me. 178; Cornell v. Redway, 22 Wis. 260; Jackson v.
Forrest, 2 Barb. Ch. 676.

7 Smith v. Grim, 26 Penn, 95.

® Rock vy. Dade, May on Fraud, 519; Taylor v. Wyld, 8 Beav. 159;
Hightower v. Mustian, 8 Geo. 506; Tichenor v. Allen, 13 Gratt. 15 ; Edmes-
ton v. Lyde, 1 Paige, 637; Winchester v. Crandall, 1 Clarke, 871; vide
Sockman y. Sockman, 18 Ohio, 362.

° Ward v. Hollins, 14 Md. 158.
REMEDIES. 523

an assignment, the creditors whose debts are provided
for in it are not necessary parties.' A person through
whom the title has passed from the debtor to the
grantee is a proper party.” Those who had interests
in the property prior to the transfer,> and the grantor
of property which has been fraudulently purchased in
the name of another, and a purchaser pendente lite,
are not necessary parties. Several grantees claiming
different portions of the property by distinct convey-
ances may be joined, for the object is to obtain satisfac-
tion out of such property and this is single.® So also
where the judgment is joint and separate conveyances
are made by each of the debtors, all the grantees may
be united.” Ifa proper decree can be made consistent
with the general scope of the bill without causing any
embarrassment to any of the parties as to any other rights
which they may have or the parties or the court in ex-
ecuting the decree, the bill will not be dismissed at the
hearing for multifariousness.® The facts which give
jurisdiction to the court and a right to relief must be
plainly and succinctly stated. The amount and charac-
ter of the debt should be set forth, for a decree can not
be rendered for other particulars and causes of action
not mentioned or alluded to in the pleadings.’

 

1 Grover v. Wakeman, 4 Paige, 23; s.c. 11 Wend. 187; Irwin v. Keen,
3 Whart. 347; M’Kinley v. Combs, 1 Mon. 105; Therasson v. Hickok, 37
Vt. 454,

? Bennett v. McGuire, 58 Barb. 625.

° Venable v. Bank, 2 Pet. 107; Erfort v. Consalus, 47 Mo. 208.

4 Ballentine v. Beall, 3 Scam, 208.

® Schaferman v. O’Brien, 28 Md. 565.

“Hamlin v. Wright, 23 Wis. 491; Chase v. Searles, 45 N. H. 511;
Brinkerhoff v. Brown, 6 Johns. Ch. 139; Fellows v. Fellows, 4 Cow. 682;
Allen vy. Montgomery R. R. Co. 11 Ala. 487; Snodgrass v. Andrews, 30
Miss. 472; North v. Bradway, 9 Minn. 183; Boyd v. Hoyt, 5 Paige,
65.

7 Planters’ Bank v. Walker, 7 Ala. 926.

* Hays v. Doane, 3 Stockt. 84.

° Walthall v. Rives, 34 Ala. 91; Strike v. M’Donald, 2 H. & G. 191.
524 REMEDIES.

AvERMENTS oF BILL.—The bill must aver the facts
which give a lien or confer jurisdiction without a lien.’
If it is filed by simple contract creditors, it should be
filed on behalf of all the creditors? The fact that the
debtor has transferred his property must be specifically
and formally alleged,’ and a description of the property
must also be given.* In order to create a lis pendens
the bill must be so definite in the description that any
one reading it can learn thereby what property is in-
tended to be made the subject of litigation.” An
amended bill for this purpose only operates from the
time of the service of process under it.°

BiLL sHouLD state Facts.—No particular form of
the bill or formal specific allegations are necessary, but
facts must be stated from which the inference may be
drawn that the aid of a court of equity is required to
obtain satisfaction of the debt. It is not enough to
show that the debtor has made a fraudulent disposition
of his property. The creditor must show that such dis-
position embarrasses him in obtaining satisfaction of his
debt, for if the debtor has other property sufficient to
satisfy the debt, there is no necessity for the creditor to
resort to equity.’ When the debtor is deceased, the
bill must allege a deficiency § of the personal assets. An
exhaustion of them, however, need not be alleged.’

 

* McElwain v. Willis, 9 Wend. 548; Beardsley Scythe Co. v. Foster,
36 N. Y. 561; s. o. 834 How. Pr. 97.

* Reese River Ming. Oo. v. Atwell L. R. 7 Eq. 347; Barton v. Bryant,
2 Ind. 189; Strike v. M’Donald, 2 H. & G. 191.

° McElwain v. Willis, 9 Wend. 548.

4 King v. Trice, 3 Ired. Eq. 568.

° Miller v. Sherry, 2 Wall. 237; McCauley v. Rodes, 7 B. Mon, 462.

* Miller v. Sherry, 2 Wall. 237.

” Dunham v. Cox, 2 Stockt, 437; Harris v. Taylor, 15 Cal. 848.

* State Bank v. Ellis, 80 Ala. 478; Quarles v. Grigsby, 31 Ala. 172.

° McLaughlin y. Bank of Potomac, 7 How. 220.
REMEDIES. 525

CHARGE OF FRAUD.—Fraud must be charged, and
this should in general be done by setting forth the facts
which constitute the fraud Fraud may be sufficiently
averred by setting forth the particular manner in which
the act was done and the particular end and design to
be accomplished. Where the facts thus stated show
that a fraud was designed and perpetrated that may be
a sufficient averment of the fraud, although the bill does
not state the conclusion which the law itself will draw
that the act was fraudulent? When the transfer was
made for a valuable consideration, there must be an al-
legation that the grantee participated in the fraud.‘
When the complainant apprehends that the defendant
will plead the statute of limitations against him, he
should aver in his bill that the fraud has been discov-
ered within such a period previous to the commencement
of the suit as will prevent the bar.” Certainty to a
common intent is all that is required in chancery plead-
ings. The accuracy which would exclude every other
conclusion is not required.®

InporsER. D&EcREE MUST CONFORM TO BILL.—An
indorser who has taken up the note which constituted
the debt can not have a pending bill in the name of
the holder prosecuted for his use, for the payment to

 

Richardson v. Horton, 7 Beav. 112.

> Prentice vy. Madden, 4 Chand. 170; Catchings v. Manlove, 39 Miss.
655; Kinder v. Macy, 7 Cal. 206 ; Meeker v. Harris, 19 Cal. 278; Harris v.
Taylor, 15 Cal. 348; Jessup v. Hulse, 29 Barb. 539; Hovey v. Holcomb, 11
Tl. 660.

® Hovey v. Holcomb, 11 Ill. 660; Catchings v. Manlove, 39 Miss.
655; Moreland v. Atchinson, 34 Tex. 351.

* Klein v. Horine, 47 Ill. 430.

® McLure vy. Ashby, 7 Rich. Eq. 480; Erickson v. Quinn, 3 Lans. 299;
s.c.47 N. ¥. 410; Carr v. Hilton, 1 Curt. 230, 390; Shannon y. White, 6
Rich. Eq. 96.

* Pope v. Wilson, 7 Ala. 690.
526 REMEDIES.

the holder put an end to the suit.' No decree can be
founded upon evidence, and in relation to matters which
are not put in issue between the parties. A creditor
can not impeach a transfer on a ground not taken in his
bill? When a bill has been filed by a simple contract
creditor to enforce the trust arising from an assignment
he may, after ohtaming judgment, and upon a subse-
quent discovery of fraud, file a supplemental bill to set
aside the assignment, for the subject matter of both the
original and supplemental bill is the debt due to the
complainant and the trust fund out of which he seeks
payment.°

Preapine.—When a bill is defective for want of
proper parties, and this defect appears on its face, it is
liable to a demurrer,‘ but if the defect does not appear
on its face, the objection can only be taken by plea or
answer disclosing who are proper parties.” No matter
can be pleaded in bar of the discovery merely when it
would be equally valid as a defence to the relief.® It is
the right of the defendant to verify his answer by an affi-
davit, and the complainant can not deprive him of it by
waiving an answer under oath.” The grantee is the
party who is interested in defeating the suit, and he
can not be prejudiced by the conduct of the debtor.

 

) Heighe v. Farmers’ Bank, 5 H. & J. 68.

? Roberts v. Gibson, 6 H. & J. 116; Tripp v. Vincent, 3 Barb. Ch. 613;
Bailey v. Ryder, 10 N. Y. 363; Hovey v. Holcomb, 11 Ill. 660; Parkhurst
v. McGraw, 24 Miss, 184; Nicholson v. Leavitt, 4 8andf. 252; Myers v.
Sheriff, 21 La, An. 172; Bachman v. Sepulveda, 39 Cal. 688; Ontario
Bank v. Root, 3 Paige, 478.

* Baker v. Bartol, 6 Cal. 488.

‘ Hightower v. Mustian, 8 Geo. 506.

* Bay Iron Co. v. Goodall, 39 N. H. 221; M’Kinley vy. Combs, 1 Mon.
105.

* Brownell v. Curtis, 10 Paige, 210.

* Clements v. Moore, 6 Wall. 299.
REMEDIES. 527

The fact that the debtor suffers the bill to be taken
pro confesso,: or admits the fraud in his answer, will
not affect the grantee. Whether a party can protect
himself from making a discovery on the ground that he
will thereby subject himself to a criminal prosecution
or a forfeiture can not be considered as yet settled?
To so much of the bill as is material and necessary for
the defendant to answer, he must speak directly and
without evasion. He must answer the charge not mere-
ly literally but confess or traverse the substance of each
charge positively and with certainty, and particular
precise charges must be answered. particularly and pre-
cisely and not in a general manner, even though a gen-
eral denial may amount to a full denial of the charges.‘

SUPPLEMENTAL ANSWER.—An answer can not be
amended. The practice is to permit the defendant,
upon a proper case, to file a supplemental answer, thus
giving the complainant the benefit of the original answer
with the explanations or denials contained in the sup-
plemental answer. Under such an answer, if the de-
fendant by mistake or misapprehension of the facts, or
of his rights, has made an admission in his original
answer which is inconsistent with the truth, he has an
opportunity by proofs to show the truth and thus re-

 

1 Sands v. Hildreth, 2 Johns. Ch. 35; s.c, 14 Johns, 498; Hollister v.
Loud, 2 Mich. 309.

? Glenn y. Grover, 3 Md. 212; Scheitlin v. Stone, 43 Barb. 634; s. c.
29 How. Pr. 355; Kittering v. Parker, 8 Ind. 44; Hord v. Rust, 4 Bibb.
231. :

3 Bunn v. Bunn, 3 New Rep. 679; s. c. 12 W. R. 561; Wich v. Parker,
22 Beay. 59; Michael v. Gay, 1 F. & F. 409; Bay Iron Oo. v. Goodall, 39
N. H. 221; vide Reg vy. Smith, 6 Cox. C. C. 31; Creswell & Cokes
Case, 2 Leon. 8.

‘ Barrow v. Bailey, 5 Fla. 9; Croft vy. Arthur, 3 Dessau. 223; Phippen
y. Durham, 8 Gratt. 457; Bailey v. Nicoll, 1 Edw. 32.
528 REMEDIES.

lieve himself from the consequences of his mistake.
When a supplemental bill is filed after the original
bill has been answered, the answer to the supplemental
‘bill must be restricted to the matters stated in it, for
the defendant has no right, under pretext of answering
the supplemental bill, to add to or amend his answer to
the original bill.” A party who claims protection as a
purchaser without notice of the fraud, must deny notice
fully and particularly, and such denial must extend to
the time of paying the money and receiving the trans-
fer.

MatrerRs RESPONSIVE TO THE BILL IS EVIDENCE.—
Statements in the answer responsive to the averments
in the bill are evidence in favor of the defendant,* but
averments which are not responsive to the bill must be
sustained by proof.’ Statements which consists of ex-
planations or qualifications of an admission are respon-
sive,’ but when the answer admits a fact and insists
upon a distinct fact by way of avoidance, the fact ad-
mitted is established, but the fact insisted upon must
be proved; otherwise the admission stands as if the
fact in avoidance had not been averred.'

 

* Hughes v. Bloomer, 9 Paige, 269.

? Richards v. Swan, 7 Gill. 366; s. c. 2 Md. Ch. 111.

* Miller v. Fraley, 21 Ark. 22; Byers v. Fowler, 12 Ark. 218; Stanton vy.
‘Green, 34 Miss. 576.

* Dewey v. Littlejohn, 2 Ired. Eq. 495; Pomeroy v. Manin, 2 Paine,
476; Blow v. Gage, 44 Ill. 208; Phettiplace v. Sayles, 4 Mason, 312;
‘Glenn vy. Randall, 2 Md. Ch. 220; Green vy. Tanner, 8 Met. 411; Harts-
horne vy. Eames, 31 Me. 93.

® Sanborn vy. Kittredge, 20 Vt. 682; McNeal v. Glenn, 4 Md. 87; s. c.
3 Md. Ch. 849; Grover v. Wakeman, 4 Paige, 23; s.c. 11 Wend. 187.

° Glenn y. Randall, 2 Md. Ch. 220; Eastman vy. M’Alpio, 1 Kelly, 157;
Glenn v. Grover, 3 Md. 212; s. c. 8 Md. Ch. 29,

7 Clements v. Moore, 6 Wall. 299; Randall v. Phillips, 3 Mason, 378 ;
Cummings v. McCullough, 5 Ala. 324; Brown v. M’Donald, 1 Hill. Ch.
297; Hampson y. Sumner, 18 Ohio, 444; Stanton v. Green, 34 Miss. 576.
REMEDIES. 529

How DENIAL MAY BE ovERcomE.—A denial of fraud.
in the answer is not conclusive.’ An answer, however,
which is responsive to the bill and denies the allegations
made therein in regard to the motives and intentions of
the parties is conclusive, unless it is overcome by the
testimony of two witnesses, or of one witness with cor-
roborating circumstances.” If the answer, however, ad-
mits facts from which a conclusive presumption of a
fraudulent intent must be drawn, the denial of the
answer is overcome.® A positive denial will not prevail
against admissions in the answer of facts which show
that the transfer was fraudulent.* Pregnant or slight
circumstances, however, are not sufficient.” When there
is a general denial of all fraud, facts specifically and
particularly charged in the bill can not be taken to be
true although they are not denied in the answer, for ob-
jections to the answer for the want of particularity and
fulness should be taken by exceptions to its sufficiency.°

 

1 How v. Camp, Walk. Ch. 427; Miller v. Tolleson, Harp. Ch. 145;
Edginton v. Williams, Wright, 439; Griffin v. Wardlaw, Harp. Ch. 481;
Burtus v. Tisdall, 4 Barb. 571; Dick v. Grissom, 1 Freem. Ch. (Miss.)
428.

° Moffatt v. McDowell, 1 McCord Ch. 484; Myers v. Kinzie, 26 Il. 36;
Blow v. Gage, 44 Ill. 208; Feigley v. Feigley, 7 Md. 537; Glenn v. Grover,
3 Md. 212; Green v. Tanner, 8 Met. 411; Gray v. Faris, 7 Yerg. 155; Allen
v. Mower, 17 Vt. 61; Allen v. White, 17 Vt. 69; Jenison v. Graves, 4
Blackf. 440; Clark v. Bailey, 2 Strobh. Ev. 143; Parkhurst v. McGraw,
24 Miss. 134; Kittering v. Parker, 8 Ind. 44; Culbertson v. Luckey, 13
Towa, 12; Wright v. Wheeler, 14 Iowa, 8; Wightman v. Hart, 87 Ill. 123;
Walter v. McNabb, 1 Heisk, 703.

° Grover v. Wakeman, 11 Wend. 187; s.c. 4 Paige, 23; Cunningham
y. Freeborn, 11 Wend. 241; Fiedler v. Day, 2 Sandf. 594; Cook v. Jobn-
son, 1 Beasley, 51.

4 Robinson v. Stewart, 10 N. Y. 189; Belford v. Crane, 1 C. E. Green,
265 ; Litchfield v. Pelton, 6 Barb. 187.

° Glenn y. Grover, 3 Md. 212; How v. Camp. Walk. Ch, 427.

® Parkman v. Welch, 19 Pick. 231; Waterbury v. Sturtevant, 18 Wend.
358; McRea v. Branch Bank, 29 How. 376.

34
530 REMEDIES.

To give the defendant, however, the full benefit of an
answer, so far as to require more than one witness to
control it, the answer must be direct and specific as to
the matter charged in the bill. So in weighing the
whole evidence in the case the fact that the defendant
only answers generally will operate against him wher-
ever the bill charges him with particular acts of fraud.
The circumstance that the defendant omits to deny the
facts in the same explicit manner as they are charged
raises the presumption that the appeal to his conscience
has been somewhat effectual, and that he proposes
shielding himself under a denial of the legal effect of
his actions rather than to deny under oath the par-
ticular acts imputed to him.t| When the cause is heard
on bill and answer, all pertinent facts stated in the
answer must be taken to be true.” The practice of per-
mitting other creditors to come in and make themselves
parties to a creditor’s bill and thereby obtain the bene-
fit, assuming at the same time their portion of the costs
and expenses is well settled?

STATUTE OF LuwiTations.—The statute of limita-
tions is never considered as an objection to the pay- _
ment of a claim unless it is specially relied ont The
plea may be set up as a bar to the demand,’ or
to the title to the property. Such a plea can not
be put in after a defence has been made to the

 

+ Parkman vy. Welch, 19 Pick. 231; Waterbury v. Sturtevant, 18 Wend.
353; Hawkins v. Alston, 4 Ired. Eq. 187; Enders v. Swayne, 8 Dana, 103;
Gamble v. Johnson, 9 Mo. 605.

* Heydock v. Stanhope, 1 Curt. 471; Heacock v. Durand, 42 Ill. 230.

* Myers v. Fenn, 5 Wall. 205 ; Strike v. M’Donald, 2 H. & G, 191; 8.
c. 1 Bland, 57.

* Strike v. M’Donald, 2 H. & G. 191.

° McDowell vy. Goldsmith, 6 Md. 319; 8. c, 2 Md. Ch. 870; Lott v. De
Graffenreid, 10 Rich. Eq. 346; M’Clenney, v. M’Clenney, 3 Tex. 192.
REMEDIES, 531

claim.’ In determining its sufficiency the substance of
the objection must govern rather than the form in
which it is presented.” The original complainant may
rely upon the statute of limitations in opposition to the
claims of other creditors who come in after the institu-
tion of the suit.? The plea of the statute of limitations
in the answer will not apply to claims that are filed
subsequently. The defence as to such claims must be
taken by exceptions.* The complainant’s claim to re-
lief is to be referred to his right at the time of filing the
bill, and if it was well founded and in full force at the
time, it will not be barred by lapse of time during the
pendency of the suit.” The statute continues to run
against other creditors until they come in by filing their
petition or the vouchers of their claims.’ If a judg-
ment is recovered against the debtor after the transfer,
but before the claim is barred, the original claim be-
comes merged in the judgment, and the plea of limita-
tions against the original claim will not avail.’ If the
claim, however, is barred before judgment a confession
of judgment by the debtor after the transfer will not
defeat the plea.®

Loorations As To TITLE.—There is a conflict among

 

? Williams vy. Banks, 19 Md. 22.

2 McDowell v. Goldsmith, 24 Md. 214.

® Strike v. M’Donald, 2H. & G. 191; McDowell v. Goldsmith, 6 Md.
319; 8. c. 2 Md. Ch. 370; 8. c. 24 Ma. 214.

* Williams y. Banks, 11 Md. 198; McDowell v. Goldsmith, 24 Md.
214.

° Hunt v. Knox, 34 Miss. 655.

* Strike v. McDonald, 2 H. & G. 191; s. c. 1 Bland, 57; McDowell v.
Goldsmith, 6 Md. 319; s. c. 2 Md. Ch. 370; 8. c. 24 Md. 214.

7 Schaferman y. O’Brien, 28 Md. 565; Williams v. Banks, 11 Md. 198 ;
s.c. 19 Md. 22.

® McDowell v. Goldsmith, 24 Md. 214; vide Jones vy. Read, 1 Humph.
335,
5382 REMEDIES.

the decisions as to the time from which the statute be-
gins to run so as to bar a claim to the title of the prop-
erty. In some it is held to run only from the time of
an actual levy upon the property,’ while in others it is
held to run from the rendition of a judgment.? When
the property is such that it can not be taken on execu-
tion, the statute does not begin to run until after the
recovery of a judgment and the return of an execution
unsatisfied. If the grantee is also administrator, he
can not plead the statute of limitations.*

LImIraTIoNs RUN ONLY FROM DISCOVERY.—The statute
of limitations is not obligatory upon a court of equity,
and does not apply to proceedings in equity, except so
far as the court deems it conducive to the ends of jus-
tice to apply it in analogy to the rules which prevail in
a court of law. As the court only acts on this analogy
because of its subserviency to the ends of justice, it
does not follow the statute when such a course would
be obviously subversive of justice. In equity, therefore,
the statute does not commence to run until the dis-
covery of the fraud.° A denial of notice of the fraud is

 

? Peterson v. Williamson, 2 Dev. 326; Pickett v. Pickett, 3 Dev. 6;
Hoke v. Henderson, 3 Dev. 12; Dobson v. Erwin, 4 Dev. & Bat. 201;
Beach v. Catlin, 4 Day, 284; Law v. Smith, 4 Ind. 56; Belt v. Raguet, 27
Tex. 471; wide Scriven v. Bostwick, 2 McCord Ch. 410; Musselman v.
Kent, 33 Ind. 452.

* Jones v. Read, 1 Humph. 355; Porter v. Cocke, Peck. 30; Blanton
v. Whitaker, 11 Humph. 313; Compton v. Perry, 28 Tex. 414; Reynolds
y. Lansford, 16 Tex. 286; Martel v. Somers, 26 Tex. 551; oide Wilson v.
Buchanan, 7 Gratt. 334; Banky. Ballard, 12 Rich. 259; Reeves v. Dough-
erty, 7 Yerg. 222; Dodd v. McCraw, 8 Ark. 83; Marr v. Rucker, 1
Humph. 348.

* Gates v. Andrews, 37 N. Y. 637; Eyre v. Beebe, 28 How. Pr. 333.

* Stephens v. Barnett, 7 Dana, 257.

*McLure y. Ashby, 7 Rich. Eq. 480; Eigleberger vy. Kibler, 1 Hill
Ch, 113; Martin y. Smith, 1 Dillon, 85; 5.0.4 B. R. 88; 3c. 3A. L. T.
(C. R.) 199.
REMEDIES. 533

a negative proposition. The affirmative is with the
party who asserts the fact of notice and whose interest
it is to establish that fact. The burden of proof, there-
fore, rests upon the defendant.

Mere suspicion of fraud is not sufficient. It is
necessary to bring home to the creditor a knowledge of
the facts constituting the fraud. The statute only be-
gins to run from the time when a knowledge of the
facts constituting the fraud, or the means by which a
knowledge of those facts might, by proper diligence
have been obtained.? Positive information, however, is
not required. The notice will be sufficient to prevent
the suspension of the statute, if it be such as would
put a reasonably diligent man upon the inquiry. Nor
must the aggrieved party wait until he has discovered
evidence by which he may establish the fraud in a court
of justice. If he has knowledge that a fraud has been
committed, though that knowledge is confined to him-
self, he must proceed diligently, for the statute in such
case will not be suspended.* The ignorance of an ex-
ecutor will not prevent the running of the statute when
the facts were known to the testator. Independently
of the statute, delay alone may be sufficient to deprive
the complainant of his right to recover.

Tur pDEcREE.—The decree can only be made to
affect the transfers which the bill alleges to be fraudu-
lent.6 After the transfer is declared void, the court may

 

McClure v. Ashby, 7 Rich. Eq. 480; Shannon v. White, 6 Rich. Eq.
96; vide Erickson v. Quinn, 3 Lans. 299; 8. c. 47 N. Y. 410; Carr vy.
Hilton, 1 Curt. 390, 230.

2 Shannon v. White, 6 Rich. Eq. 96; Abbey v. Bank, 31 Miss. 434;
Snodgrass v. Bank, 25 Ala. 161; Erickson vy. Quinn, 47 N. Y. 410; s.c. 3
Lans. 299.

® McClure v. Ashby 7 Rich. Eq. 430.

4 Lott v. De Graffenreid, 10 Rich. Eq. 346.

® Huston v. Cantril, 11 Leigh, 136.

* Wilson v. Horr, 15 Iowa, 489.
534 REMEDIES.

leave the creditor to enforce his execution at law when
the property can be so reached, or, having assumed ju-
risdiction of the cause and subject matter, may proceed
to do full and complete justice by directing a sale of
the property... When a creditor brings a suit to pro-
cure a satisfaction of his own claim only, the action ends
as soon as he is satisfied and no decree can be made
affecting any surplus that may remain in the grantee’s
hands? If several creditors are parties to the proceed-
ings, the proceeds will be distributed according to the
priorities of the various parties, for the funds remain
subject to the same liens as the property before the
sale?

Creprrors at LARGE.—Upon a bill filed by simple
contract creditors, a distribution is made ratably
among all the creditors, preserving, however, the rights
of those who have liens upon the property.‘

Liens.—The filing of a bill by a judgment creditor,
and the service of process create a lien in equity upon
the effects of the debtor. This has been aptly termed
an equitable levy.° To constitute a lien, the bill must

 

*Scouton v. Bender, 3 How. Pr. 185; Yoder v. Standiford, 7 Mon.
478; Planters’ Bank v. Walker, 7 Ala. 926; Hunt v. Knox, 34 Miss. 655 ;
Chatauque Bank v. White, 6 N. Y. 236; s. c. 6 Barb. 589; McCalmont v.
Lawrence, 1 Blatch. 232; vide Higgins v. York Building Co. 2 Atk. 107;
Hendrickson vy. Winne, 3 How. Pr. 127.

° Ward v. Enders, 29 Ill. 519; Ballentine v. Beall, 3 Scam. 203 ; Kaupe
v. Bridge, 2 Robt. 459; Bostwick v. Menck, 40 N. Y. 383.

3 Codwise v. Gelston, 10 Johns. 507.

4 Day v. Washburn, 24 How. 352; Robinson v. Stewart, 10 N. Y. 189;
Barton v. Bryant, 2 Ind. 189; McNaughtin vy. Lamb, 2 Ind. 642.

* Chittenden vy. Brewster, 2 Wall. 191; Hartshorne v. Eames, 31 Me.
93; Newell v. Morgan, 2 Harring, 225; Newdegate v. Lee, 9 Dana, 17;
Bank vy. Burke, 4 Blackf. 141; Ballentine v. Beall, 3 Scam. 203; Spader v.
Davis, 5 Johns, Ch. 280; Albany Bank v. Schermerhorn, 1 Clarke, 297;
REMEDIES. 535

be filed against the grantee and not against the debtor
alone.’ The filing of the bill must also be followed up
by service of process.’ If creditors file separate bills,
they are entitled to priority of payment in the order in
which they commence their suits. When the property
can not be taken on execution, it is not the return of an
execution unsatisfied, but the filing of a bill, that gives
alien. If the party whose execution is first returned
unsatisfied delays, a subsequent execution will gain a
preference by superior vigilance in filing a bill The
filing of a bill will also give a prior lien upon the per-
sonal estate of the debtor when there has not been an
actual levy. The lien is created by the issuing of ‘the
execution, and the filing of the bill gives it a pri
ority.®

SuBsEcT To OTHER LiENS—The equitable lien cre-
ated by the filing of a bill is subject to any valid lien
which may happen to exist in favor of any other cred-
itor at the time of the service of the process.© In the
case of land it is subject to prior legal liens created by

 

Jeffries v. Cochrane, 47 Barb. 557 ; Cummings v. McCullough, 5 Ala. 324;
Moffat v. Ingham, 7 Dana, 495; Barrett v. Reed, Wright, 700; Peacock v.
Tompkins, Meigs, 317; Gracey v. Davis, 38 Strobh. Eq. 55; Stanton v.
Keyes, 14 Ohio St. R. 448; Maiders v. Culver, 1 Duvall, 164; vide Pea-
cock v. Tompkins, Meigs, 317; Chase vy. Searles, 45 N. H. 611.

? Fields v. Sands, 8 Bosw. 685; Conger v. Sands, 19 How. Pr. 8.

? Boynton v. Rawson, 1 Clarke, 584.

3 Hone v. Henriquez, 13 Wend. 240; 8. 0.2 Edw. 120; Moffat v. Ing-
ham, 7 Dana, 495; Fields v. Sands, 8 Bosw. 685 ; Boynton v. Rawson, 1
Clarke, 584.

4 Weed v. Pierce, 9 Cow. 722; Edmeston v. Lyde, 1 Paige, 637; Beck
vy. Burdett, 1 Paige, 305; Grover v. Wakeman, 4 Paige, 23; 8. c. 11 Wend.
187.

® Scouton v. Bender, 8 How. Pr. 185; Weed v. Pierce, 9 Cow. 722;
Albany Bank y. Schermerhorn, Clarke, 297.

®Scouton v. Bender, 83 How. Pr. 185; Lane v. Lutz, 1 Keyes, 208;
Haleys v. Williams, 1 Leigh, 140; Hubbs v. Bancroft, 4 Ind. 388.
536 REMEDIES.

judgments rendered against the debtor? A judgment
rendered after the filing of the bill, and prior to the di-
vesting of the title, is also a lien upon the land.’ After
the appointment of a receiver, no lien can be acquired,
for the debtor’s title is then divested.* The title of a
a party who purchases from the receiver does not relate
back to the judgment lien of the creditor who filed the
bill, but is subject to all liens existing at the time of
the appointment of the receiver in favor of persons who
are not parties to the proceedings.*

Costs.—Costs are peculiarly within the discretion
of the court. They are usually allowed to the success-
ful party.’ In cases of constructive fraud they may be
paid out of the fund.’ When the transaction is such
as would naturally induce a creditor to call for an ex-
planation, the bill may be dismissed without costs if he
is unsuccessful.” If the case is one of peculiar hardship
to the creditor, or if the conduct of the defendant does

 

* Chatauque Bank v. Risley, 19 N. Y. 369; Scouton v. Bender, 3 How
Pr. 185; Albany Bank vy. Schermerhorn, 1 Clarke, 297; vide Dargan v.
Waring, 11 Ala. 988; Lyon v. Robbins, 46 Ill. 276; Miller v. Sherry, 2
Wall. 237.

* Watson v. R. R. Co. 6 Abb. Pr. (N. S.) 91.

* Albany Bank vy. Schermerhorn, 1 Clarke, 297; Chatauque Bank v.
White, 6 N. Y. 236; 8. c. 6 Barb. 589.

* Chatauque Bank v. Risley, 19 N. Y. 369.

° Webb v. Daggett, 2 Barb. 9; How v. Camp, Walk. Ch. 427.

° Grover v. Wakeman, 11 Wend. 187; s.c. 4 Paige, 28; Saunders v.
Turbeville, 2 Humph. 272; Fiedler v. Day, 2 Sandf. 594; Erickson v.
Quinn, 47 N. Y. 410.

"White v. Sansom, 3 Atk. 410; Houghton v. Tate, 8 Y. & J. 486;
Holmes v. Penney, 3 K. & J. 90; Townsend v. Westacott, 4 Beav. 58;
Hale y. Saloon Omnibus Co. 4 Drew. 492; Magawley’s Trust, 5 De G. &S.
1; McArthur y. Hoysradt, 11 Paige, 495; Jacks v. Tunno, 8 Dessau, 1;
Cunningham vy. Freeborn, 11 Wend. 241; Stern v. Fisher, 82 Barb. 198;
Cox y. Platt, 32 Barb. 126; 8. c. 19 How. Pr. 121; Niolon v. Douglass, 2
Hill. Ch. 443; Pomeroy vy. Manin, 2 Paine, 476; Webb v. Daggett, 2 Barb.
9; Wakefield v. Gibbon, 1 Giff. 401.

* Hickman y. Quinn, 6 Yerg. 96.
REMEDIES. 537

not meet with the approbation of the court,’ each party
may be directed to pay his own costs. A purchaser
who has failed mainly through a defect in his answer
may be ordered to pay his own costs alone? The costs
of a person who is a necessary party may be
allowed out of the fund when he has not been
guilty of fraud? Except in case of a gross abuse of the
trust, an assignee claiming under a voluntary assign-
ment is not usually charged with costs.* In the case of
a creditor’s bill, the counsel fees for the complainant’s
solicitor may be allowed out of the fund.°

 

1 Clark v. Bailey, 2 Strobh. Eq, 143; Miller v. Halsey, 4 Abb. Pr. (N.
8.) 28.

? Byers v. Fowler, 12 Ark. 218.

3 Norcutt v. Dodd, 1 Cr. & Ph. 100; Townsend v. Westacott, 4 Beay,
58.

* Webb v. Daggett, 2 Barb. 9.

5 Strike v. M’Donald, 2 H. & G. 191; Goldsmith v. Russell, 5D, M. &
G. 547,
CHAPTER XXIII
EVIDENCE.

PRooF OF INDEBTEDNESS.—Before any person can
assail a transfer as fraudulent he must show either that
he is a creditor of the grantor or represents creditors.*
For the purpose of establishing such indebtedness the
admissions of the grantor made prior to the transfer at
a time when he had no interest to make false admis-
sions, are competent evidence against him and all who
claim under him either mediately or immediately by a
subsequent title? His declarations, notes,* and ac-
counts,® are prima facie evidence of the existence of the
debts they respectively purport to represent. But ad-
missions made after the transfer are not competent evi-
dence.®

JupemENTs.—The record of a judgment rendered

 

? Garnons v. Knight, 5 B. & C. 671; Candler v. Fisher, 11 Md. 332;
Mahany v. Lazier, 16 Md. 69; Conillard v. Duncan, 6 Allen, 440; Stanbro
vy. Hopkins, 28 Barb. 265; Ingram v. Phillips, 3 Strobh. Ch. 565.

? Richards v. Swan, 7 Gill. 366; Gamble v. Johnson, 9 Mo. 605; High
v. Nelms, 14 Ala. 350; Satterwhite v. Hicks, Busbee, 105; Hale v. Smith,
6 Me. 416; Dubose v. Young, 14 Ala. 139; Goodgame v. Cole, 12 Ala.
77.

5 Ragan v. Kennedy, 1 Tenn. 91; Satterwhite v. Hicks, Busbee, 105.

‘High v. Nelms, 14 Ala. 350; Foster v. Wallace, 2 Mo. 231; Feagan
y. Cureton, 19 Geo. 404.

® Richards vy. Swan, 7 Gill. 366,

° Redfield v. Buck, 85 Conn. 828; Hitt v. Ormsbee, 12 Il]. 166; Town-
send y. Westacott, 2 Beav. 340.
EVIDENCE. 539

against the debtor is competent evidence against the
grantee to establish the existence of the debt. It is not
competent evidence against third parties of the facts
upon which the judgment is founded, but is evidence of
the existence of the judgment itself, and is also prima
facie evidence of the existence of the indebtedness.’
There is a distinction between a mere admission of the
debtor and a judgment, for the record of a judgment
rendered after the transfer is sufficient evidence of the
debt.? A judgment rendered against the debtor’s ad-
ministrator, whether domestic,’ or foreign,‘ is not com-
petent evidence against the grantee. Ifa judgment is
by confession the creditor must prove it to be for a
just debt.’ In this respect there is a distinction be-
tween a judgment obtained in due course of law and a
judgment obtained by the consent of the debtor. The
law presumes the former to be founded upon a valuable
consideration and rendered for a just debt, but indul-
ges no such presumption in favor of the latter.

ONLY PRIMA FACIE AS AGAINST GRANTEE.—The evi-
dence of the existence of the debt whether in the form
of an admission, or note, or judgment, is only prima
facie evidence of an indebtedness as against the grantee

 

1 Railroad Co. v. Kyle, 5 Bosw. 587; Law v. Payson, 32 Me. 521; Gar-
rigues v. Harris, 17 Penn. 344; Garland y. Rives, 4 Rand. 282; Feagan v.
Cureton, 19 Geo. 404; Vogt v. Ticknor, 48 N. H. 242; Easley v. Dye, 14
Ala. 158; Clayton v. Brown, 80 Geo. 490; Snodgrass v. Bank, 25 Ala.
161; Reed v. Davis, 5 Pick. 388; Prescott v. Hayes, 43 N. H. 593; Tap-
pan vy. Nutting, Brayt. 137; Hinde v. Longworth, 11 Wheat. 199.

2 Young v. Pate, 4 Yerg. 164.

° McDowell v. Goldsmith, 24 Md. 214; Baker v. Welch, 4 Mo. 484;
Osgood v. Manhattan Co. 8 Cow. 612; Contra, M’Laughlin v. Bank of
Potomac, 7 How. 220; Chamberlayne v. Temple, 2 Rand. 384.

* King v. Clarke, 2 Hill Ch. 611.

° Sanders v. , Holt, 827; 8, c. Skinner, 586; Botts v. Cozine,
Hoff. Ch. 79.

 
540 EVIDENCE.

and it is always competent for him to impeach the debt
either as to its existence, its dona fide character, its date,
or its continuance.’ He may inquire into the grounds
of a judgment and show that it does not give the party
who holds it a right as against him to impeach the
transfer.2 He may show that the debt, or the judg-
ment, has been paid, or that there were mutual claims
which could have been made the subject of a set-off,
and by this means be mutually cancelled,’ or that the
debt was barred by the statute of limitations before the
commencement of the suit in which the judgment was
obtained,’ or that the judgment is being used for the
benefit of the debtor.*. The right to impeach, however,
does not extend so far as to give him the right to retry
an issue which has been litigated and determined be-
tween the parties in accordance with the forms and
principles of law without fraud or collusion.®

Limitep To PLEADINGSs.—Evidence to establish the
fraud must be confined to the pleadings, for the facts
which the pleadings admit can not be varied or contra-

 

' Boutwell v. McClure, 30 Vt. 674.

? Miller v. Miller, 23 Me. 22; Taylor v. Eubanks, 3 A, K. Marsh. 239;
Miller v. Johnson, 27 Md. 6; Warner v. Dove, 33 Md. 579; Posten v.
Posten, 4 Whart. 27; Church v. Chapin, 35 Vt. 223; Hall v. Hamlin, 2
Watts, 354; Mattingly v. Nye, 8 Wall. 370; Ingalls v. Brooks, 29 Vt.
898; Bruggerman v. Hoerr, 7 Minn. 337; Sargent v. Salmond, 27 Me.
539; Caswell v. Caswell, 28 Me. 232; Carter v. Bennett, 4 Fla. 283; King
v. Tharp, 26 Iowa, 283; Esty v. Long, 41 N. H. 103; Jenness v. Berry, 17
N. H. 549; Contra, Starr v. Starr, 1 Ohio, 321.

* Mattingly v. Nye, 8 Wall. 370.

“ Boutwell v. McClure, 30 Vt. 674.

® Warner v. Percy, 22 Vt. 155.

° Warner v. Dove, 33 Md. 579; McDowell v. Goldsmith, 24 Md. 214.

” Feagan v. Cureton, 19 Geo. 404.

® Sidensparker vy. Sidensparker, 52 Me. 481; Ferguson v. Kumler, 11
Minn. 104. ,
EVIDENCH. 541

dicted. The only purpose of evidence is to establish
what is alleged by one party and denied by the other.’
To establish the controverted facts proof is the end and
evidence is the means. Proof establishes the: truth.
Evidence only tends towards it. Any pertinent and
legitimate facts conducing to the proof of a litigated
fact are evidence of it, either weaker or stronger, accord-
ing to their entire character and complexion? Evidence
which tends to prove an issue, contributes to its estab-
lishment and assists in giving a leaning to the mind in
its consideration or determination. That which is di-
rected to an end, however, may not necessarily attain it.
It may be received as evidence if it has this tendency,
but it isnot to be treated as conclusive or as necessarily
warranting the fact which it tends to establish. Evi-
dence, however, may be so direct and positive as to
amount to proof itself, but in general it consists of facts
which, while they do not necessarily establish the con-
troverted fact, tend to justify the inference of its ex-
istence.?

ApmissiBitity.—In questions of fraud a wide range of
evidence is allowed.* Fraud assumes many shapes, dis-
guises and subterfuges, and is generally so secretly
hatched that it can only be detected by a consideration
of facts and circumstances which are not unfrequently
trivial, remote, and disconnected. A wide latitude of
evidence is, therefore, allowed in order that it may be
detected and exposed. This principle arises from ne-
cessity and is established for the protection of society

 

1 Parkhurst v. McGraw, 24 Miss. 134.

? Miles v. Edelen, 1 Duvall, 270.

® Davenport v. Cummings, 15 Iowa, 219.

4 Covanhovan v. Hart, 21 Penn. 495; Garrigues v. Harris, 17 Penn.
344,
542 EVIDENCE.

and the benefit of morals. Each detached piece of evi-
dence is not rejected as it is offered, because it is appar-
ently trivial” Any fact however slight, if at all rele-
vant to the issue is admissible.” It is not easy to draw
the precise line separating those circumstances which
are fairly admissible from those which ought to be ex-
cluded. The true test, however, is whether the evidence
can throw light upon the transaction or is altogether
irrelevant.’ Evidence which has no connection with the
matters in issue but merely tends to create a per-
sonal prejudice against one of the parties should be
excluded.* So also if the whole evidence taken to-
gether would merely raise a suspicion, it may be re-
jected.”

EvIpENCE OF SECRET TRUST.—Sometimes the proof
of the fraudulent intent depends upon the establish-
ment of a secret trust between the parties, and in all
cases when a fraud is established the grantee is treated
as a trustee for the creditors. Such a trust, however,
is not a trust between the parties to the transaction to
be set up and enforced by the cestud que trust or his
representatives. It is a question of fraud by reason of
a secret trust with fraudulent intent as affecting the va-
lidity of the transfer. Hence the doctrines of the
law as to the proof of a trust, whether it may be by
parol or must be by writing, are not involved. The
question is one of fraudulent intent and such intent

 

1 Blue v. Penniston, 27 Mo. 272.

2 Waters v. Dashiell, 1 Md. 455; Curtis v. Moore, 20 Md. 93; Balto. &
Ohio R. R. Co. v. Hoge, 34 Penn. 214.

3 Zerbe v. Miller, 16 Penn. 488; Heath v. Page, 63 Penn. 108; Blue v.
Penniston, 27 Mo. 272; Wright v. Linn, 16 Tex. 34.

* Carr v. Gale, Daveis, 328; Davenport v. Wright, 51 Penn. 292.

® Boylston v. Carver, 11 Mass. 515.
EVIDENCE. 543

may be proved by any kind of evidence by which fraud
may be proved.'!

Res cest#.—In questions of fraud or bona fides an
adequate judgment can in general only be formed by
having a perfect view of the whole transaction and this
includes the conversation which forms a part of it.
The language which is used on any occasion forms a
part of the res geste. The declarations and acts of the
debtor made before the transfer and contemporaneous
with it are admissible? They are admissible in evidence
in favor of the grantee,’ as well as of creditors. The
acts,* and declarations of the grantee,’ which accompany
the transfer stand on the same footing as those of the
debtor. So far as the acts and declarations of the par-
ties form a part of and assist in giving character to the
transaction, they constitute a part of the res gestw, and
are competent evidence.® When admitted they do not

 

* McLane vy. Johnson, 48 Vt. 48; Starr v. Starr, 1 Ohio, 321; Hills v.
Elliott, 12 Mass. 26; Blair v. Alston, 26 Ark. 41.

? McDowell v. Goldsmith, 6 Md. 319; s.c.2 Md. Ch. 370; Waters v.
Riggin, 19 Md. 536; Badger v. Story, 16 N. H. 168; Angier v. Ash, 26
N. H. 99; Goodgame v. Cole, 12 Ala. 77; Elliott v. Stoddard, 98 Mass.
145; Sackett v. Spencer, 65 Penn. 89; York County Bank vy. Carter, 38
Penn. 446; Merrill v. Meachum, 5 Day, 341; Cook v. Swan, 5 Conn. 140;
Crary v. Sprague, 12 Wend. 41; Gamble v. Johnson, 9 Mo. 605 ; Hardee
v. Langford, 6 Fla. 13; Potter v. McDowell, 31 Mo. 62; Marsh v. Davis,
24 Vt. 363; Hoose vy. Robbins, 18 La. An. 648; Heath v. Page, 63 Penn.
108; Weil v. Silverstone, 6 Bush. 698; Peck v. Crouse, 46 Barb. 151;
McLane yv. Johnson, 48 Vt. 48; Pomeroy v. Bailey, 43 N.H. 118; Wilson
y. Forsyth, 24 Barb. 105; M’Kinney v. Rhoads, 5 Watts, 843; Wykoff v.
Carr, 8 Mich, 44; Bates v. Ableman, 13 Wis. 644; vide Alexander v. Gould,
1 Mass. 165; Reichart v. Castator, 5 Binn. 109.

3 Elliott v. Stoddard, 98 Mass. 145; Sackett v. Spencer, 65 Penn. 89;
Sweetzer v. Mead, 5 Mich. 107; oéde Gruber v. Boyles, 1 Brev. 266; U.S.
vy. Mertz, 2 Watts, 406; College v. Powell, 12 Gratt. 372.

4 Cuyler v. McCartney, 40 N. Y. 221; 8. o. 33 Barb. 165.

®* Boyden v. Moore, 11 Pick. 362.

° Claytor v. Anthony, 6 Rand. 285.
544 EVIDENCE,

conclusively establish the fraud, but are to be consider-
ed in connection with other evidence and to be gov-
erned as to their effect by the usual rules of the law."

CoNTEMPORANEOUS ACTS AND DECLARATIONS —In
order to invalidate a transfer for a valuable considera-
tion, it must be shown that it was made with a
fraudulent intent on the part of the debtor, and
that the grantee had notice of this intent, and par-
ticipated in it. These propositions are, in some mea-
sure, independent of each other, inasmuch as there
may be a fraudulent intent on the part of the debtor
which may not be known to the grantee though proof
of both must concur to establish the right of a creditor
to recover. The evidence to prove these several propo-
sitions may be of different kinds and drawn from dif-
ferent sources. It may apply separately to the two
branches of the case. Evidence in regard to the con-
duct and declarations of the debtor prior to the transfer
is admissible to prove the fraud on his part, and if this
is proved, the knowledge of it on the part of the
grantee may be proved by any circumstances tending
to show a participation in the designs of the debtor.
These acts and declarations may be proved without
proving knowledge on the part of the grantee of the
particular acts and declarations from which the fraudu-
lent intent is to be inferred.* It is upon this principle

 

* McDowell v. Goldsmith, 6 Md. 319; s.c. 2 Md. Ch. 370.

2 Bridge v. Eggleston, 14 Mass. 245; Clarke v. Waite, 12 Mass. 439;
Foster v. Hall, 12 Pick. 89; Blake v, White, 13 N. H. 267; Heath v. Page,
63 Penn. 108; Howe v. Reed, 12 Me. 515; Landecker v. Houghtaling, 7
Cal, 391; Mansir v. Crosby, 6 Gray, 334; Gillet v. Phelps, 12 Wis. 392;
Davis v. Stern, 15 La. An. 177; Grooves v. Steele, 2 La. An. 480; Gray v.
St. John, 35 Ill. 222; Winchester v. Charter, 97 Mass. 140; Sarle v. Arnold,
7R. I. 582; Cook v. Moore, 11 Cush. 213; Kimmel v. M’Right, 2 Penn.
38; Farmers’ Bank v. Douglass, 11 8. & M. 469; Guidry v. Grivot, 2 Mar-
tin (N. 8.) 18; Chase y. Walters, 28 Iowa, 460; Wright v. Linn, 16 Tex.
EVIDENCE. . 545

that fraudulent transfers to other persons, at or
about the time of the transfer, may be shown.’ There
is, moreover, a probable connection in a series of sales
nearly at the same time, the result of which is to strip
a man of his available property. If such evidence were
not admissible, it would be in the power of parties, by
subdividing such transactions, to altogether destroy the

force of the evidence resulting from their general char-
acter.”

Lonoration oF ruLE—The rule that distinct frauds
may be shown is limited, however, to such frauds as are
contemporaneous, or at most nearly so, and does not
embrace dealings which are so remote in point of time
as to throw no light upon the matter in issue between
the parties.® The admissibility of such evidence is to

 

34; Lynde v. McGregor, 18 Allen, 172; McElfatrick v, Hicks, 21 Penn.
404; Booth v. Bunce, 33 N. Y. 189; Trezevant v. Courtenay, 23 La. An.
628; Chase v. Chase, 105 Mass. 885; Contra, Beach v. Catlin, 4 Day, 284;
Reed v. Smith, 14 Ala. 880; Oden v. Rippettoe, 4 Ala. 68; Partelo v.
Harris, 26 Conn. 480; Pettibone v. Phelps, 13 Conn, 445 ; Jones v. Norris,
2 Ala. 526; Adams v. Foley, 4 Iowa, 44; Prior v. White, 12 Ill. 261;
Curtis v. Moore, 20 Md. 93.

1 Livermore vy. Northrop, 44 N. Y. 107; Crow v. Ruby, 5 Mo. 484 ;
Cummings v. McCullough, 5 Ala. 324; Cram v. Mitchell, 1 Sandf. Ch. 251;
Guerin y. Hunt, 6 Minn. 375; Lehmer v. Herr, 1 Duvall, 360; Blake v.
White, 13 N. H. 267; Hills v. Hoitt, 18 N. H. 603; Whittier v. Varney,
10 N. H. 291; Van Kirk v. Wilds, 11 Barb. 520; Angrave v. Stone, 45
Barb. 35; Benning v. Nelson, 23 Ala, 801; Fisher v. True, 38 Me. 534;
Howe v. Reed, 12 Me. 515; Ford v. Williams, 3 B. Mon. 550; Zerbe v.
Miller, 16 Penn, 488; Deakers v. Temple, 41 Penn. 234; Sarle v. Arnold,
7 R. I. 582; Warren v. Williams, 52 Me. 348; Taylor v. Robinson, 2 Allen,
562; vide Brett v. Catlin, 57 Barb. 404; Mower v. Hanford, 6 Minn. 535;
Christopher v. Covington, 2 B. Mon. 357.

? Pierce v. Hoffman, 24 Vt. 525.

* Cohn vy. Mulford, 15 Cal. 50; Staples v. Smith, 48 Me. 470; Hunt-
zinger v. Harper,44 Penn. 204; McAulay vy. Earnhart, 1 Jones, (N. C.)502;
Imray v. Magnay, 11 M. & W. 267; Flagg v. Willington, 6 Me. 386; Boyd
v. Brown, 17 Pick. 453; Cook v. Swan, 5 Conn. 140; Blake vy. Howard, 11

Me. 202.
35
546 EVIDENCE.

be determined according to the degree of its relation to
the transfer in controversy. It need not take place im-
mediately with it, provided it is calculated to unfold
the nature and quality of the fact it is intended to ex-
plain, and so to harmonize with it as to constitute one
transaction. Within these limits the rule may be con-
sidered as only an enlarged application of the principles
which admits the acts and declarations which constitute
a part of the res geste. Prior declarations which are
subsequently adopted and acted upon by the grantee
are admissible upon other grounds.’

DECLARATIONS OF consprrators.—When several
persons are engaged in a common enterprise, each is re-
sponsible for the declarations as well as the acts of the
others. If the connection and purpose are first estab-
lished, the declarations of one of the parties, while en-
gaged in the prosecution of this purpose, may be received
against the others. They are admissible as a part of
the res geste. They constitute parts of the transaction
on which the rights of the creditors depend. The state-
ments of a person who has participated in an act are
not considered as mere hearsay but as legitimate evi-
dence of the act done, and are thus competent evidence
against the others. It constitutes no objection to the

 

* Cuyler v. McCartney, 40 N. Y. 221; 8. c. 33 Barb. 165.

2 Stovall v. Farmers’ Bank, 8 8. & M. 305.

3 Jenne v. Joslyn, 41 Vt. 478; McDowell v. Rissell, 87 Penn. 164; Lee
v. Lamprey, 48 N. H. 13; M’Kee v. Gilchrist, 8 Watts, 2380; Rogers v.
Hall, 4 Watts, 359; Gibbs v. Neely, 7 Watts, 305; Trimble v. Turner, 13
8. & M. 348; Tuttle v. Turner, 28 Tex. 759; Hartman v. Diller, 62 Penn.
37; Bredin v. Bredin, 3 Penn. 81; Kelsey v. Murpby, 26 Penn. 78; Stew-
art v. Johnson, 3 Harrison, 87; Caldwell vy. Williams, 1 Ind. 405; Cuyler
vy. McCartney, 40 N. Y. 221; Waterbury v. Sturtevant, 18 Wend. 353 ;
Reitenbach y. Reitenbach, 1 Rawle. 862; Claytor vy. Anthony, 6 Rand.
285; Abney v. Kingsland, 10 Ala. 355; Eaton v. Cooper, 29 Vt. 444; Bor-
land y. Mayo, 8 Ala, 104; Stovall v. Farmers’ Bank, 8 8. & M. 305,
EVIDENCE. 547

admissibility of such declarations that the plan was con-
cocted before the party against whom they are offered
became an associate. By connecting himself with the
others and aiding in the execution of their plan, he
adopts their prior acts and declarations so far as they
constitute a part of the ves geste, as much as if he had
been present and assented to each successive step in
carrying out and consummating the fraud.

ConsPIRACY MUST BE ESTABLISHED.—Before such dec-
larations can be given in evidence, however, there
must be proof of the confederacy. In order to ascertain
whether they are admissible, it devolves upon the court
to determine for itself whether other facts are sufficiently
proved, and whether these facts are prima facie sufti-
cient proof that the parties have combined to effect the
fraudulent design. If it finds that there is such proof
it admits the declarations as fit evidence to be con-
sidered by the jury, in forming their judgment on the
whole case, who may nevertheless negative the combi-
nation.” The combination can not be established by
the declarations themselves, for a species of evidence
which is in its nature inadmissible, unless some other
fact is proved, can not be used to.establish the fact the
proof of which is an indispensable condition of its own
admissibility. ‘They, therefore, can not even be heard
until a foundation is laid for their introduction, by
proper proof, that the debtor and grantee were engaged
in a conspiracy to defraud creditors.2 Mere proof that
they have concurred in a transfer does not establish it,
for it only shows a common intent, but not a common

 

1 Stewart v. Johnson, 3 Harrison, 87.

* Claytor v. Anthony, 6 Rand. 285.

5 Cuyler v. McCartney, 40 N. Y. 221; Claytor v. Anthony, 6 Rand.
285; Abney vy. Kingsland, 10 Ala. 355,
548 EVIDENCE.

intent to defraud! A very slight degree of concert
or collusion, however, is sufficient.2 The retention of
possession,’ or a statement of the debtor showing a
fraudulent intent made so near the grantee that he
might, and most probably did, hear it, are sufficient.*
The retention of possession, however, must be of such a
character as to raise a presumption of a fraudulent in-
tert.

SuBsEQUENT DECLARATIONS.—The existence of the
fraudulent intent must always be proved by evidence,
which is competent as against the grantee. The acts and
declarations of the debtor, however, made after the
transfer, have not, in the absence of any proof of a con-
spiracy, any tendency to prove the cause or motive of
the act. After the transfer is consummated the debtor
becomes a stranger to the title for all purposes, and his
acts and declarations are no more binding on the
grantee than are those of any stranger to the trans-
action. They are in their nature hearsay and irrelevant.
No person, moreover, should be allowed to defeat his
transfer by his own acts or words.’ If the declarations

 

1 Cuyler v. McCartney, 40 N. Y. 221.

? Hartman y. Diller, 62 Penn. 37.

3 Caldwell v. Williams, 1 Ind. 405; Borland v. Mayo, 8 Ala. 104;
Waterbury v. Sturtevant, 18 Wend. 353.

4 Stovall v. Farmers’ Bank, 8 8. & M. 305.

® Abney v. Kingsland, 10 Ala. 355.

° Miner v. Phillips, 42 Ill. 128; Babb v. Clemson, 12 8. & R. 328;
Clements v. Moore, 6 Wall. 299; Foster v. Wallace, 2 Mo. 231; Steward
vy. Thomas, 35 Mo. 202; Hessing v. McCloskey, 87 IU. 841; Visher v.
Webster, 13 Cal. 58; Lewis v. Wilcox, 6 Nev. 215; Peck v. Crouse, 46
Barb, 151; Vance v. Smith, 2 Heisk. 343; Ogden v. Peters, 15 Barb. 560;
Bogert v. Haight, 9 Paige, 297; Ball v. Loomis, 29 N. Y. 412; Savery v.
Spaulding, 8 Iowa, 239; Norton vy. Kearney, 10 Wis. 448; Myers v. Kin-
zie, 26 Ill. 86; Wynne v. Glidewell, 17 Ind. 446; Bates v. Ableman, 13
Wis, 644; Burt v. McKinstry, 4 Minn. 204; Pickett v. Pickett, 8 Dev. 6;
Edgell v. Bennett, 7 Vt. 584; Gamble v. Johnson, 9 Mo. 605; Humphries.
EVIDENCE. 549

or acts are made or done with the assent of the grantee,!
or if the debtor is produced as a witness,’ then they
may be used as evidence upon other grounds and not
merely as intrinsically competent of themselves.

DECLARATIONS IN PossEssion.—When the debtor re-
mains in possession of the property, his acts and decla-
rations are competent evidence against the grantee. The
possession is a part of the ves gest, and the nature and
character of the possession is an important point of in-
quiry. The acts and declarations connected with it and
forming a part of its attendant circumstances are col-
lateral indications of its nature, extent, and purpose.
They are admissible, not because any peculiar credit is
due to the party in possession, but because they qualify
and characterize the very fact to be investigated.? The

 

v. McCraw, 9 Ark, 91; Scott v. Heilager, 14 Penn. 238; Reed v. Smith,
14 Ala. 380; Foote v. Cobb, 18 Aja. 585; Strong v. Brewer, 17 Ala. 706;
McElfatrick v. Hicks, 21 Penn. 402; Wolf v. Carothers, 3 8. & R. 240;
Gridley v. Bingham, 51 Ill. 153; Taylor v. Robinson, 2 Allen, 562; Derby
v. Gallup, 5 Minn. 119; Lormore v. Campbell, 60 Barb. 62; Pier v. Duff,
63 Penn. 59; Sackett v. Spencer, 65 Penn. 89; Cohn v. Mulford, 15 Cal.
50; Zimmerman v. Lamb, 7 Minn. 421; Winchester v. Charter, 97 Mass.
140; Aldrich y. Earle, 18 Gray, 578; Sutter v. Lackmann, 39 Mo. 91;
Shaw v. Robertson, 12 Minn. 445; Miner v. Phillips, 42 Ill. 128; Pulliam
v. Newberry, 41 Ala, 168; Weinrich v. Porter, 47 Mo. 293; Ragan vy. Ken-
nedy, 1 Tenn. 91; Clark v. Johnson, 5 Day, 373; Phillips v. Eamer, 1 Esp.
855; Glenn v. Grover, 3 Md. 212; Collumb vy. Read, 24 N. Y. 505; Cuyler
vy. McCartney, 40 N. Y. 221.

> Kendall v. Hughes, 7 B. Mon. 368,

2 Borland v. Mayo, 8 Ala. 104; Venable v. Bank, 2 Pet. 107.

* Askew v. Reynolds, 1 Dev. & Bat. 367; Marsh v. Hampton, 5 Jones,
(N. C.) 882; Goodgame v. Cole, 12 Ala. 77; Cole v. Varner, 31 Ala. 244;
Pomeroy v. Bailey, 43 N. H. 118; Ragan v. Kennedy, 1 Tenn. 91; Peck
y. Land, 2 Keliy, 1; Paper Works v. Willett, 1 Robt. 1381; Helfrich v.
Stem, 17 Penn. 143; Carnahan v. Wood, 2 Swan, 500; Abney v. Kings-
land, 10 Ala, 355; Waggoner v. Cooley, 17 Ill. 239; Currie v. Hart, 2
Sandf. Ch. 853; Adams v. Davidson, 10 N. Y. 309; Jacobs v. Remsen, 36
N. Y. 668; Babb v. Clemson, 105. & R, 419; 8. co. 12 8. & R, 828; Blake
550 BVIDENCE.

principle applies to personal as well as real property,’ and
extends to the declarations of any person in possession.”
The possession, however, must be actual and not merely
constructive, and inconsistent with the title of the
grantee? The acts and declarations are admissible in
favor of the grantee as well as of creditors.* But be-
fore they can be received, the possession must be shown
to the satisfaction of the court.’ They are not, more-
over, admissible to every conceivable extent. As the
ground of their admission is to explain the possession,
they are limited to such as are explanatory of it. Any-
thing beyond this is no part of the thing done, and con-
sequently is inadmissible,* unless it is competent for
some other reason.

RELATIONS OF THE PARTIES AND EVENTS CONNECTED
WITH THE TRANSFER.—It is always competent to show
what precedes and follows the transfer, the relations of
the parties both prior and subsequent, and all the facts
and circumstances surrounding it.’ It is upon this

 

v. White, 13 N. H. 267; Foster v. Woodfin, 11 Ired. 339; Robinson v. Pit-
zer, 3 W. Va. 335; Redfield v. Buck, 35 Conn. 828; Caldwell v. Rose, 1
‘Smith, 190; Reed v. Smith, 14 Ala. 380; Farnsworth v. Bell, 5 Sneed, 531;
Neal v. Peden, 1 Head, 546; Grant vy. Lewis, 14 Wis. 487; Deakers y.
Temple, 41 Penn. 234; Carrollton Bank y. Cleveland, 15 La, An. 616; Wil-
lies v. Farley, 3 C. & P. 395; Wilbur v. Strickland, 1 Rawle, 458 ; Grant
v. Lewis, 14 Wis. 487; Blake v. Graves, 18 Iowa, 312; Cahoon v. Marshall,
25 Cal. 197.

? McBride v. Thompson, 8 Ala. 650.

* Walcott v. Keith, 22 N. H. 196; Kendall v. Hughes, 7 B. Mon.
368.

* Trotter v. Watson, 6 Humph. 509; Donaldson y. Johnson, 2 Chand.
160; Ford v. Williams, 18 N. Y. 577; Mayer v. Clark, 40 Ala. 259.

“Waters v. Riggin, 19 Ma. 5386; Walcott v. Keith, 22 N. H. 196 ; Up-
son v. Raiford, 29 Ala. 188; ide Williams v. Kelsey, 6 Geo. 365.

* Thomas vy. De Graffenreid, 17 Ala. 602.

* Abney v. Kingsland, 10 Ala. 855 ; McBride v. Thompson, 8 Ala. 650;
Borland vy. Mayo, 8 Ala. 104; Christopher v. Covington, 2 B. Mon. 357 ;.
vide Burckmyer v. Maris, Riley, 208. ,

* Erfort v. Consalus, 47 Mo. 208.
EVIDENCE. 551

ground that evidence of other contemporaneous trans-
fers between the same parties is admissible’ It must,
however, be shown that they were so connected with
the transfer in controversy as to make it apparent that
the parties had a common purpose in both.2 The prin-
ciples applies also to subsequent transfers® But even.
though fraud is proved in other transfers it is not con-
clusive.* The whole conduct of the parties with refer-
ence to the property transferred may be shown as bear-
ing upon the question of good faith or fraudulent in-
tent. It is true that the fraud must be in the inception
of the transaction, but the subsequent acts are calculated
to explain the motives which actuated the parties at the
beginning and give tone to the original purpose.’ Such
subsequent acts are also admissible in favor of the
grantee. The transfer, however, must be judged by
its terms and in the light of the contemporaneous and
subsequent acts of the parties. These furnish the data
for the determination of the intent and motives with
which it was made.’

 

1 Van Kirk y. Wilds, 11 Barb. 520; Amsden v. Manchester, 40 Barb.
158; Gibbs v. Neely, 7 Watts, 305; M’Ilvoy v. Kennedy, 2 Bibb. 380;
Benham vy. Cary, 11 Wend. 83; Cumming v. Fryer, Dudley, 182; Trotter
vy. Watson, 6 Humph. 509; Pierson v. Tom, 1 Tex. 577; Helfrich v. Stem,
17 Penn. 148; Belt v. Raguet, 27 Tex. 471; Price v. Mahoney, 24 Iowa,
582; Erfort v. Consalus, 47 Mo. 208; McCabe vy. Brayton, 38 N. Y. 196.

? Williams v. Robbins, 15 Gray, 590 ; Sutter v. Lackman, 39 Mo. 91,

3 Lynde v. McGregor, 13 Allen, 172.

+ Collumb vy. Read, 24 N. Y. 505.

° Flanigan v. Lampman, 12 Mich. 58; Dallam v. Renshaw, 26 Mo. 533;
Wilson vy. Ferguson, 10 How. Pr. 175; Wright v. Linn, 16 Tex. 34; Forbes
vy. Waller, 25 N. Y. 430; Carr v. Gate, Davies, 328; Snodgrass v. Bank,
25 Ala. 161; Blue v. Penniston, 27 Mo. 272; Warren vy. Williams, 52 Me,
343.

° Cecil Bank v. Snively, 28 Md. 253; Helfrich v. Stem, 17 Penn, 143;
Graham v. Lockhart, 8 Ala. 9; Creagh v. Savage, 14 Ala. 454.

7 Forbes v. Waller, 25 N. Y. 430.
552 EVIDENCE.

ConTEMPORANEOUS ActTs.—Evidence of the condition
and acts of the parties at and about the time of the
transfer is competent, for it serves to show the reason-
ableness of their conduct and to throw light upon their
motives. It may be shown that the grantor was in-
debted,' or intoxicated,” or that the grantee was unable
to purchase the property, or that the statements in a
written instrument are false,* or that receipts between
the parties are fraudulent,’ or that the debtor made the
transfer known,’ or that he concealed a part of his
property." Evidence of the character either of the
debtor® or of the grantee’ is not admissible, for charac-
ter is not directly put in issue by the nature of the con-
troversy. A verdict setting aside the transfer for fraud
in another suit between other parties,” or the issuing of
an attachment by another creditor, is not competent
evidence." Heavy purchases immediately preceding the

 

? Hanet vy. Dundass, 4 Penn. 178; Manhattan Co. v. Osgood, 15 Johns.
162; Covanhovan v. Hart, 21 Penn. 495; Helfrich v. Stem, 17 Penn. 143;
Smith v. Henry, 2 Bailey, 118; Williams v. Banks, 11 Md. 198; Mills v.
Howeth, 19 Tex. 257; Waters v. Dashiell, 1 Md. 455; King v. Bailey, 6
Mo. 575.

2 Delaware v. Ensign, 21 Barb, 85.

| Borland v. Mayo, 8 Ala. 104; Demerritt v. Miles, 22 N. H. 523; M’Il-
voy v. Kennedy, 2 Bibb, 380; Hyman v. Bailey, 13 La. An., 450; Amsden
y. Manchester, 40 Barb. 158; Belt v. Raguet, 27 Tex. 471; Stebbins v. Mil-
ler, 12 Allen, 591; wide Derby v. Gallup, 5 Minn. 119; Cook v. Swan, 5
Conn. 140.

* Peake v. Stout, 8 Ala. 647.

® Balt. & Ohio R. R. Co. v. Hoge, 34 Penn. 214.

° Paper Works v. Willett, 1 Robt. 131.

7 Wilson v. Forsyth, 24 Barb. 105; Guerin y. Hunt, 8 Minn. 477,

* Gutzweiler v. Lackman, 23 Mo. 168; Church v. Drummond, 7 Ind.
17%.

° M’Kinney v. Rhoads, 5 Watts. 343 ; Holmesley vy. Hogue, 2 Jones, (N.
C.) 391.

1 Mower v. Hanford, 6 Minn. 535,

1 Miner v. Phillips, 42 Ill. 128.
EVIDENCE. 553

transfer may be shown.' The declarations of one
grantee are not admissible against another who holds
with him as tenant in common.? The fact of an attor-
ney’s advice to the grantee may be shown.’

WITNESS CANNOT TESTIFY TO ANOTHER’S INTENT.—
The intent with which an act is done is to be ascer-
tained from the circumstances surrounding it, and from
the acts and declarations of the parties, and is therefore
a deduction or inference from facts; consequently a
witness cannot testify in regard to the intentions of an-
other, for he must speak of facts within his own knowl-
edge, and not of inferences that he may draw from facts
that may be known to him.* The debtor’ and the grantee®
may each testify in regard to his own intentions. Such
testimony on the part of the debtor is not regarded as
anything more than an expression of his opinion
as to the character of the transaction, and is not conclu-
sive,’ and unless it is supported by other evidence, is

 

* Curtis v. Moore, 20 Md. 93.

? Manhattan Co. v. Osgood, 8 Cow. 612; s. c. 15 Johns. 162; Graham
y. Lockhart, 8 Ala, 9; Governor vy. Campbell, 17 Ala. 566; Cuyler v. Mc-
Cartney, 40 N. Y. 221.

5 Goodgame v. Cole, 12 Ala. 77; Nicholson v. Leavitt, 4 Sandf. 252 ;
Fisher v. True, 38 Me. 534; vide Lee v. Lamprey, 43 N. H. 13.

* Peake v. Stout, 8 Ala. 647; Spaulding v. Strang, 36 Barb. 310; Mat-
tison v. Demarest, 4 Robt. 161. /

° Forbes v. Waller, 4 Bosw. 475; s, co. 25 N. Y. 430; 8. c. 25 How. Pr.
166; Paper Works y. Willett, 1 Robt. 181; Law v. Payson, 32 Me. 521;
Seymour v. Beach, 4 Vt. 493; Wolf v. Carothers, 3S. & R. 240; Miner v.
Phillips, 42 Ill. 123; Spaulding v. Strang, 36 Barb. 310; Forbes v. Logan,
4 Bosw. 475; Matthews v. Poultney, 33 Barb. 127; Seymour vy. Wilson, 14
N. Y. 567; Watkins v. Wallace, 19 Mich. 567.

° Bedell v. Chase, 834 N. Y. 386; Paxton v. Boyce, 1 Tex. 317; Ed-
wards v. Currier, 43 Me. 474; Wheelden v. Wilson, 44 Me.1; Potter v.
McDowell, 31 Mo. 62.

7 Bates v. Ableman, 13 Wis. 644; Newman v. Cordell, 43 Barb. 448;
Loker y, Haynes, 11 Mass. 498 ; Brown. Osgood, 25 Me. 505 ; Griffin v. Mar-
quardt, 21 N. Y.121; Keteltas v. Wilson, 36 Barb. 298; s.c. 28 How. Pr. 69.
504 EVIDENCE.

entitled to but little weight.! His mere suppositions
in regard to his solvency are inadmissible.’ Declarations
of mere abstract opinions—as, for instance, that a man
ought to secure something for his family—are irrele-
vant. .

Recrrats IN DEEDS ARE PRIMA Facre.—As the pre-
sumption is always in favor of fairness, the statement
of the payment of the consideration in an instrument
is prima facie evidence of the fact.* It is, however, the
lowest species of prima facie evidence, inasmuch as the
same motives which would induce parties to make and
execute a fraudulent conveyance, would induce them to
insert an acknowledgment of the payment and receipt
of the consideration ;° and therefore where there is any
evidence of fraud, there must be other proof of the

 

1 Atwood v. Impson, 5 C. E, Green, 150; Work vy. Ellis, 50 Barb. 512;
Kittering v. Parker, 8 Ind. 44; Borland vy. Walker, 7 Ala. 269.

? Ogden v. Peters, 15 Barb. 560.

8’ Whiting v. Johnson, 11 8. & R. 328.

‘Glenn y. Grover, 3 Md. 212; Farringer v. Ramsay, 2 Md. 365; 8. c. 4
Md. Ch. 33; Glenn v. Randall, 2 Md. Ch. 220; Moore v. Blondheim, 19 Ma.
172 ; Stockett v. Holliday, 9 Md. 480; Mayfield v. Kilgour, 31 Md. 240;
Marden vy. Babcock, 2 Met. 99; Every v. Edgerton, 7 Wend. 259; Foster
vy. Hall, 12 Pick. 89; Lutton v. Hesson, 18 Penn. 109; Clark v.
Depew, 25 Penn. 509; Hundley v. Buckner, 6 8. & M. 70; Hemp-
stead v. Johnston, 18 Ark. 123; Brown v. Bartee, 10 8. & M. 268; Splawn
v. Martin, 17 Ark. 146; Brinley v. Spring, 7 Me. 241: Merrell v. Wil-
liamson, 35 Ill. 529; Gates v. Labeaume, 19 Mo. 17; Mandel y. Peay, 20
Ark, 325; Rindekoff v. Guggenheim, 3 Cold. 284; Shontz v. Brown, 27
Penn. 123; Contra, Merrill v. Locke, 41 N. H. 486; Kimball v. Fenner, 12
N. TH. 248; Prescott v. Hayes, 48 N. H. 593; Belknap v. Wendell, 21 N.
H. 175; Ferguson y. Clifford, 37 N. H. 86; Claywell vy. McGimpsie, 4 Dev.
89; Feimester v. McRorie, 12 Ired. 287; Governor v. Campbell, 17 Ala.
566; Branch Bank y. Kinsey, 5 Ala. 9; McCain v. Wood, 4 Ala. 258; Mc-
Gintry v. Reeves, 10 Ala. 187; McCaskle v. Amarine, 12 Ala. 17; Dolin
v. Gardner, 15 Ala. 758; Ferguson v. Gilbert, 16 Ohio St. R. 88; Vogt v.
Ticknor, 48 N. H. 242; Brown v. Knox, 6 Mo. 302; College v. Powell, 12
Gratt, 372; Crow v. Ruby, 5 Mo. 484.

° Clapp v. Tirrill, 20 Pick. 247; Clark vy. Depew, 25 Penn. 509.
EVIDENCE. 555

consideration.! The declarations of the debtor, not
made in the presence of the grantee, are not admissible
to prove the consideration.’ Proof cannot be given of
the payment of the consideration after the commence-
ment of the suit.’

‘WHEN PROOF OF CONSIDERATION MATERIAL.—A. deed
executed in good faith passes the interest of the grantor
in the property to the grantee, whether any consider-
ation is actually paid or not as between the parties to
it.* It is only when an instrument is assailed by cred-
itors that the amount and character of the consider-
ation become material. In such controversies it is a
leading principle that no evidence is admissible which
contradicts the deed or changes its character.® The
kind of consideration determines whether the instrument
belongs to the class of deeds known as bargains and
sales, or covenants to stand seized to uses, and to which
ever class it belongs its character cannot be changed by
parol evidence.®

WHEN EVIDENCE OF CONSIDERATION MATERIAL.—If
no consideration is expressed in a deed, evidence of a
consideration may be given.’ If the deed purports to

 

* Whitaker v. Garnett, 3 Bush. 402; Redfield Manuf. Co, v. Dysart, 62
Penn. 62; Allen v. Cowan, 28 Barb. 99; Rogers v. Hall, 4 Watts, 359;
Zerbe v. Miller, 16 Penn. 488 ; Mead v. Phillips, 1 Sandf. Ch. 83.

2 Yardley v. Arnold, 1 Car, & M. 48£; Hooper v. Edwards, 18 Ala. 280 ;
Colquitt v. Thomas, 8 Geo. 258; Taylor v. Moore, 2 Rand. 563; Coole v.
Braham, 3 Exch. 183; U.S. v. Mertz, 2 Watts, 406; Whiting v. Johnson,
11 8. & R. 328; Wilson v. Hillhouse, 14 Iowa, 199.

3 Angrave v. Stone, 45 Barb. 35.

“Bank y. Housman, 6 Paige, 526; Doe v. Hurd, 8 Blackf 310;
Jackson y. Garnsey, 16 Johns. 189; Cunningham v. Dwyer, 23 Md. 219.

* Betts v. Union Bank, 1 H. & G. 175.

° Cunningham v. Dwyer, 23 Md. 219.

7 Peacock v. Monk, 1 Ves. Sr. 127; Howell y. Elliott, 1 Dev. 76; Banks
y. Brown, 1 Riley Ch. 181; s. c, 2 Hill Ch. 558,
556 EVIDENCE.

be for a valuable consideration, evidence may be given
of an additional consideration of the same kind as that
so set forth. This additional consideration may consist
either of money paid to the grantor’s creditors,’ or an
indebtedness due to the grantee,’ or a liability as indor-
ser,‘ or the grantee’s note, or a claim for damages,’ or
future advances,’ or any other valuable consideration.®
A mere secret parol trust to apply the property to the
benefit of the grantor’s creditors is not sufficient.2 A
mere nominal consideration may, according to circum-
stances, constitute a voluntary deed,” or a deed founded
upon a valuable consideration.”

FRoM OTHER PARTIES.—It is not necessary that the
proof should show that the consideration passed
immediately from the grantee to the grantor. If A.
bargains for land with B., and pays the agreed price,
and at A.’s request the deed is made to C. without

 

* Anderson y. Tydings, 3 Md. Ch. 167; Bullard v. Briggs, 7 Pick. 533;
Banks vy. Brown, 1 Riley Ch. 181; 8. c. 2 Hill Ch. 558; Cunningham y.
Dwyer, 23 Md. 219; McNeal v. Glenn, 4 Md. 87; s. c. 3 Md. Ch. 349.

? Glenn vy. Randall, 2 Md. Ch. 220; Waters v. Riggin, 19 Md. 536.

* Anderson vy. Tydings, 8 Md. Ch. 167; Buffum vy. Green, 5 N. H. 71;
‘Cunningham vy. Dwyer, 23 Md. 219; Credle v. Carrawan, 64 N.C. 422.

* McKinster v. Babcock, 26 N.Y. 378.

° Mayfield v. Kilgour, 31 Md. 240.

° Fellows v. Emperor, 13 Barb. 92.

" Craig v. Tippin, 2 Sandf. Ch. 78; Bank v. Finch, 3 Barb. Ch. 298;
Lawrence vy. Tucker, 23 How. 14; Cole v. Albers, 1 Gill. 412; Shirras v.
Craig, 7 Cranch, 34.

® Tyler v. Carlton, 7 Me. 175.

* Jones v. Slubey, 5 H. & J. 872; Bireley v. Staley, 5 G. & J. 432; Pet-
tibone v. Stevens, 15 Conn. 19.

» Baxter v. Sewell, 8 Md. 884; 8. c. 2 Md. Ch. 447; Walker v. Bur-
rows, 1 Atk. 98; Wickes v. Clarke, 8 Paige, 161; Ridgeway v. Under-
wood, 4 Wash. C. C. 129; McKinley v. Combs, 1 Mon. 105; Felder y. Har-
per, 12 Ala. 612.

™* Cunningham v. Dwyer, 23 Md. 219; Harvey v. Alexander, 1 Rand.
219,
EVIDENCE. 557

any fraudulent intent, C. may maintain his title to the
property by proving the consideration so paid. Even
if the design of the conveyance were that C. should
hold the land in trust for A., but he has executed no
writing by which that trust can be legally proved, still
the title of C. can not be impeached by a creditor of B.
on that account, for a declaration of trust may at any
time afterwards be executed, or A. may confide in the
integrity of C., and it is a matter only between A. and
C. whether the trust be executed or not. In the case
supposed B. has obtained the value of his land, and his
creditors are not necessarily injured.’

CoNTEMPORANEOUS DEEDS.— For the purpose of
repelling any imputation of fraud it may be shown that
a deed was made in consideration of another instru-
ment of the same date. Whether they constitute parts
of the same transaction depends upon all the surround-
ing circumstances of each particular case, and not upon
the simple fact whether they are or are not, by express
references, grafted into, or connected with each other,
and is generally a question of fact.

Norrs anp supements.—Evidence may be given to
show what was the consideration of a note which
purports to be for value received.? A judgment con-
fessed in the name of one person may be shown by
parol to have been given for debts due to others.*

CoNSIDERATION CANNOT BE VARIED.—A deed pur-

 

? Bullard v. Briggs, 7 Pick. 583; Harvey v. Alexander, 1 Rand. 219,

* Harman v. Richards, 10 Hare, 81; Gale v. Williamson, 8 M. & W.
405; Keen v. Preston, 24 Md. 395; Belt v. Raguet, 27 Tex. 471.

* Harris v. Alcock, 10 G. & J. 226.

* Insurance Co. v. Wallis, 23 Md. 173; Harris v. Alcock, 10 G. & J.
226; Groshen v. Thomas, 20 Md. 284.
558 EVIDENCE.

porting to be for a valuable consideration cannot be set
up asa gift If it purports to be given for love and
affection, proof of a valuable consideration is inad-
missible. The statement of a particular consideration
imports the whole consideration, and is a negative to
any other, and such evidence would, if admitted, vary
the consideration, and consequently is not competent.’
Under the expression “other good causes and considera.
tions,” the considerations of love and affection may be
shown.? A difference between the debts described as
the consideration of a deed ands those offered in
evidence, either as to names, debts, or amounts, does
not necessarily affect the validity of the instrument, but
at most merely furnishes grounds for an unfavorable
presumption.‘

Evipencre By GRANTEE—The grantee may prove his
ignorance of the grantor’s insolvency.’ The debtor's
schedules in bankruptcy® and his prior offers to sell the
property to other persons,’ are not competent evidence.
It may be shown that up to the time of the transfer the
debtor was applying his means in discharge of his
debts. A letter from the debtor to him notifying him
of the execution of a mortgage in his favor is admis-

 

* Hildreth v. Sands, 2 Johns. Ch. 85; Betts v. Union Bank, 1 H. & G.
175; Rollins v. Mooers, 25 Me. 192; vide Brackett v. Wait, 4 Vt. 389. |

* Ellinger v. Crowl, 17 Md. 861; McNeal v. Glenn, 4 Md. 87; s.c.3
Md. Ch. 349; Hinds y. Longworth, 11 Wheat, 199; Baxter v. Sewell, 8
Md. 834; s. c. 2 Md. Ch. 447; Bean v. Smith, 2 Mason 252; vide Hender-
son v. Dodd, 1 Bailey Ch, 138.

> Pomeroy v. Bailey, 43 N. H. 118.

* Graham v. Lockhart, 8 Ala. 9; Pomeroy v. Manin, 2 Paine, 476.

° Filley v. Register, 4 Minn. 391.

° Carr v. Gale, Daveis, 328.

” Tifts v. Bunker, 55 Me. 178; Fisher v. True, 88 Me. aot

* Mower v. Hanford, 6 Minn. 535,
EVIDENCE. 559

sible Proof may be given of declarations made by the
grantee prior to the transfer of an intention to assist the
debtor to evade the claims of his creditors.

«

Bourpen oF proor.—It is a universal principal both
at law and in equity that the law never presumes fraud.
Odiosz et inhonesta non sunt in lege preesumenda et in
facto quod se habet ad bonum et malum de bono quam
malo presumendum est. The burden of proof, there-
fore, rests upon the creditors whenever they assail a
transfer for fraud? It is not necessary, however, to
establish it by direct and positive proof, for this can
seldom be done. Generally the first effort of a man
who intends to commit a fraud is to throw a veil over
the transaction, to shield it against assault, and baftle
all attempts at detection. No man willingly furnishes
the evidence of his own turpitude. Fraud. is, for this
reason, rarely perpetrated openly and in broad day-
light. It is committed in secret, and privately, and
usually hedged in and surrounded by all the guards
which can be invoked to prevent discovery and
exposure. Its operations are frequently circuitous and
difficult of detection. It is, therefore, usually estab-
lished by circumstantial evidence.*

 

? Sweetzer v. Mead, 5 Mich. 107.

° Foster v. Thompson, 5 Gray, 453; Helfrich y. Sten, 17 Penn. 1438.

3 Thornton v. Hook, 36 Cal. 223; Foster v. Hall, 12 Pick. 89; Nichols
v. Patten, 18 Me. 231; Blaisdell v. Cowell, 14 Me. 370; Fifield v. Gaston,
12 Iowa, 218; Bell v. Hill, 1 Hay. (N. C.) 72; Sutton v. Lackman, 39 Mo.
91; Elliott v. Stoddard, 98 Mass. 145,

“ Bullock vy. Narrott, 49 Ill. 62; Kempner v. Churchill, 8 Wall. 362;
Floyd v. Goodwin, 8 Yerg. 484; Sibly v. Hood, 3 Mo. 206; Wright v.
Grover, 27 Ill. 426; King v. Mocn, 42 Mo. 551; Newman vy. Cordell, 43
Barb. 448 ; Hicks v. Stone, 13 Minn. 434; Pope v. Andrews, 1 8. & M. Ch.
135 ; Land v. Jeffries, 5 Rand. 599; Rogers v. Hall, 4 Watts, 359; Curtis
vy. Moore, 20 Md. 93; McConihe vy. Sawyer, 12 N. H. 396; Floyd v. Good-
win, 8 Yerg. 484; Kane v. Drake, 27 Ind. 29.
560 EVIDENCE.

Mover or proor.—No transfer is fraudulent unless
it is made with an intent to delay, hinder or defraud
creditors, and this intent is an emotion of the mind, and
can usually be shown only by the acts and declarations
of the party. These acts and declarations, and all the
concomitant circumstances, must be established, and
then the motive may be deduced from them in accord-
ance with those principles which are shown by
experience and observation to rule human conduct.’
The proof in each case will consequently depend upon
its own circumstances. It usually consists of many
items of evidence which, standing detached and alone,
would be immaterial, but which, in connection with
others, tend to illustrate and shed light upon the
character of the transaction, and show the position in
which the parties stand and their motives, conduct, and
relations to each other. Que tingula non prosunt,
juncta guvant. Although the evidence is generally
circumstantial it is often as potent as direct testimony.
Sometimes a combination of circumstances characterize
a transaction so plainly and so clearly as to stamp upon
it unerring and indelible marks of fraud which can not
be mistaken, and the transaction itself present phases so
remarkable and peculiar that no fair-minded person can
hesitate to pronounce it fraudulent. These znrdicia are
often the clearest proof and quite as reliable as positive
evidence.*

FRavuD MAY BE PRESUMED.—It is sometimes said
that fraud can never be presumed, but the fact that it
is generally established by circumstantial evidence,

 

? Babcock v. Eckler, 24 N. Y. 6238.

? Filley v. Register, 4 Minn. 391.

® Huff v. Roane, 22 Ark. 184.

* Newman v. Cordell, 48 Barb, 448; Boies v. Henney, 32 Ill. 180.
EVIDENCE. 561

shows that this expression is incorrect. The law never
presumes fraud, but fraud itself may be established by
inference the same as any other fact. Presumptions are
of two kinds, legal and natural. Allegations of fraud
are sometimes supported by one, and sometimes by the
other, and are seldom, almost never, sustained by that
direct and plenary proof which excludes all presump-
tion. Fraud is established by mere presumption of
law, when the necessary consequence of an act is to de-
lay or defraud. A natural presumption is the deduction
of one fact from another. When creditors are about to
be cheated, it is very uncommon for the perpetrators to
proclaim their purpose and call in witnesses to see it
done. A resort to presumptive evidence, therefore, be-
comes absolutely necessary to protect the rights of
honest men from this as from other invasions. Fraud
in the transfer of goods or land may be shown by the
same amount of proof as will establish any other fact in
its own nature as likely to exist. In any case the num-
ber and cogency of the circumstances from which guilt
may be inferred are proportioned to the original im-
probability of the offence. The frequency of frauds
upon creditors, the difficulty of detection, the power-
ful motives which tempt an insolvent man to commit it
and the plausible casuistry with which it is sometimes
reconciled to the consciences even of persons whose pre-
vious lives have been without reproach, are considerations
which prevent its classification among the grossly improb-
able violations of moral duty, and often permit it to be
presumed from facts which may seem slight. How much
evidence is required to raise a presumption of actual fraud
can not be determined according to any inflexible rule.t

 

1 Kaine v. Weigley, 22 Penn. 179; Kendall v. Hughes, 7 B. Mon. 368 ;
Reed y. Noxon, 48 Ill. 323; Colquitt v. Thomas, 8 Geo. 258.

36
562 EVIDENCE.

Amount or proor.—While the law abhors fraud, it
is also unwilling to impute it on slight and trivial evi-
dence and thereby cast an unjust reproach upon the
character of the parties! Such an imputation is grave
in its character and can only be sustained on satisfactory
proof. If the evidence is so conflicting that no conclu-
sion can be reached, the transaction must be sustained,
upon the principle that the burden of proof is on the
party who assails it, and if he does no more than create
an equilibrium, he fails to make ou this case.” Mere sus-
picion leading to no certain results is not sufficient? A
legal title will not be divested upon mere conjectures or
evidence loose and indeterminate in its character.’
Fraud will never be imputed when the circumstances
and facts upon which it is predicated may consist with
honesty and purity of intention.”

Nor INCONSISTENT WITH OTHER THEORY.—It is not
necessary, however, that the proofs tending to the con-
clusion of fraud should be incapable of being accounted.
for upon any other hypothesis. There is no rule of
evidence or principle of law which requires that the
circumstances must be of so conclusive a nature and

 

* Thompson y. Sanders, 6 J. J. Marsh. 94; Blow v. Gage, 44 III. 208.

? Kaine v. Weigley, 22 Penn. 179.

* Parkhurst v. McGraw, 24 Miss.134; Blow v. Gage, 44 Ill. 208; Wad-
dingham v. Loker, 44 Mo. 132; Bartlett v. Blake, 387 Me. 124; Belk v.
Massey, 13 Rich. 614; Roberts v. Guernsey, 3 Grant, 237; Phettiplace v-
Sayles, 4 Mason, 312; Hale v. Saloon Omnibus Co. 4 Drew. 492; s. c. 28
L. J. Ch. 777; Thompson v. Sanders, 6 J. J. Marsh. 94; Glenn v. Grover,
3 Md. 212; s.c.3 Md. Ch. 29; Faringer v. Ramsay, 2 Md. 865; 8. c. 4
Md. Ch. 88; Buck v. Sherman, 2 Doug. (Mich.) 176; White v. Trotter, 14
8. & M. 30; Hoose v. Robbins, 18 La. An, 648; King y. Moon, 42 Mo.
651; Waterman v. Donalson, 43 Ill. 29.

* Fifield v. Gaston, 12 Iowa, 218.

* Stiles v. Lightfoot, 26 Ala. 443; Lyman vy. Cessford, 15 Iowa, 229;
Dallam y. Renshaw, 26 Mo, 533.
EVIDENCE. 563

tendency as to exclude every other hypothesis than the
one sought to be established in order to authorize
the inference of fraud from circumstantial evidence.
If the evidence is admissible as conducing in any de-
gree to the proof of the fact, the only legal test appli-
cable to it upon such an issue is its sufficiency to satisfy
the mind and conscience and produce a satisfactory
conviction or belief! What amount or weight of evi-
dence is sufficient proof of a fraudulent intent is not a
matter of legal definition.

Must BE satisFactory.—The proof, however, must
be clear and satisfactory.” It must be so strong and
cogent as to satisfy a man of sound judgment of the
truth of the allegation.® Circumstances affording a
strong presumption are sufficient,* but the presumption
must be drawn from pregnant facts and not from far
fetched probabilities.© Inferences are to be drawn
from such facts not singly but as a whole.® As an alle-
gation of fraud is against the presumption of honesty,
it requires stronger proof than if no such presumption
existed. As it is against a presumption of fact, perhaps
often a slight one, it requires somewhat more evidence
than would suftice to prove the acknowledgment of an
obligation or the delivery of a chattel.’ It is not neces-
sary, however, that the fraud shall be proved beyond a
reasonable doubt. Issues of fact in civil cases are de-
termined by a preponderance of testimony, and the rule

 

* Linn y. Wright, 18 Tex. 317.

* King v. Moon, 42 Mo. 551; Fifield v. Gaston, 12 Iowa, 218.

* Henry v. Henry, 8 Barb. 588.

* Parkhurst v. McGraw, 24 Miss. 134; Hempstead v. Johnston, 18 Ark.
123.

° Paxton v. Boyce, 1 Tex. 317.

° Stebbins y. Miller, 12 Allen, 591.

* Hatch y. Bayley, 12 Cush. 27.
564 EVIDENCE.

applies as well to cases in which fraud is imputed as to
any other. If the evidence produces a rational belief,
it can not be discarded although some doubt remains.’
The payment of a full price does not purify a transac-
tion but is entitled to great weight when the proof of
fraud is not clear.”

SAME RULE IN EQUITY AS AT LAw.—In the proof of
a fraudulent intent the same general rule prevails in
equity as at law. The law does not presume fraud, but
it must be established by evidence. A court of equity
is also governed by the same principles as a court of
law in drawing inferences from the testimony placed
before it. The difficulty of demonstrating the intention
from the overt acts and conduct of the parties furnish
no reason for the assertion of the power by a judge
guided by no more certain rule than his own arbitrary
conclusions to presume a fraudulent intent from his own
vague suspicions of the nature and character of the trans-
action unassisted and uncontrolled by any certain and
fixed principles. The character of a transaction is not
thus dependent on the peculiar notions of the judge as
to what will constitute good or ill faith.2 The only ex-
ception to the rule is where the price given by the
grantee is inadequate. When a transfer is of such in-
decisive and dubious aspect that it can not either be en-
tirely suppressed or entirely supported with satisfaction,
a court of equity may allow it to stand asa security for
the amount actually paid and let the creditors in upon

 

* Ford y. Chambers, 19 Cal. 143; Bryant v. Simoneau, 5 II. 324 |
McConihe vy. Sawyer, 12 N. H. 896; Rice v. Dignowithy, 4S. & M. BT;
Watkins v. Wallace, 19 Mich. 57,

* Kittering v. Parker, 8 Ind. 44.

* Wilson v. Lott, 5 Fla. 805; vide King v. Moon, 42 Mo. 551; Hemp-
stead v. Johnson, 18 Ark, 123.
EVIDENCE. 565

the balance. The creditors thus get what in equity
and good conscience they ought to bave and the grantee
ought not to withhold from them.’

 

> Boyd v. Dunlap, 1 Johns. Ch. 478; Bigelow v. Ayrault, 46 Barb. 143;
Herne v. Meeres, 1 Vern. 465; s. c. 2 Bro. C. C.177,n.; Bean v. Smith, 2
Mason, 252; McArthur v. Hoysradt, 11 Paige, 495; Barrow v. Bailey, 5
Fla. 9; Scott v. Winship, 20 Geo. 429; Farmers’ Bank v. Long, 7 Bush.
337; M’Meekin v. Edmonds, 1 Hill. Ch. 288; Garland v. Rives, 4 Rand.
282; Barnwell v. Ward, 1 Atk. 260; Clements v. Moore, 6 Wall. 299 ; Drury
v. Cross, 7 Wall. 299; Doughten y. Gray, 2 Stockt. 323; Bennett v. Mus-
grove, 2 Ves. 51; Ward v. Shallet, 2 Ves. 16; Trimble v. Ratcliffe, 9 B.
Mon. 511; 8. c. 12 B. Mon, 32,
CHAPTER XXIV.

EXTENT OF GRANTEE’S LIABILITY.

DEcREE MUST CONFORM TO BILL.—A creditor can
not subject any property to the satisfaction of his
demand which he does not claim by his bill The
decree against the grantee must in general be for a
surrender of the property, and not for an absolute sum.’

GRANTEE NOT LIABLE AFTER SURRENDER. — An
honest man will not accept a fraudulent conveyance,
and a party who holds property fraudulently will, as
soon as he comes to a sense of his moral duty, restore
‘it to those to whom it belongs. He ought generally
to give it back to the debtor, in order that it may
be applied to his debts if wanted, or to his benefit
if not necessary for that purpose. Although the law
for the purpose of discouraging fraud will not compel
him to restore it to the debtor, yet no person who
possesses a sense of justice or honesty will retain it.
The relation between the grantee and creditors is
different ; there is no express obligation between them.
The creditors, however, ought to receive their debts,
and the law gives them a claim to the property, and
charges the grantee as a trustee, in consequence of
his possession. The trust is not express, but arises by
operation of law, in consequence of his having in his
hands that which ought to be applied to the satis-

 

‘ Bozman vy. Draughan, 8 Stew. 243.
* Bozman y. Draughan, 3 Stew. 243; Greer v. Wright, 6 Gratt. 154.
EXTENT OF GRANTEE’S LIABILITY. 567

faction of their demands. It depends, therefore, on
the possession of the property. If the grantee, there-
fore, divests himself in good faith of that which he
could not retain without dishonesty before the right
of the creditors to call him to an account accrues,
there is nothing remaining upon which to raise a trust,
and the relation of trustee ceases." The grantee for the
same reason can not be held to account for the prop-
erty, or the proceeds arising from a sale of it, which
have been applied by him in good faith to the pay-
ment of the debts of the grantor.? In this respect there
is no distinction between a transfer which is fraudulent
in fact and one which is fraudulent in law.? Unless the
commencement of the suit gives notice of the cause of
action, the grantee will be protected for payments made
before such notice is given.‘

Procrerps.—The grantee is construed to be a
trustee for the creditors, and as such is responsible for
all his acts in disposing of the property fraudulently
conveyed to him. If he has parted with it he must
account for the value. Js autem dolo malo emit, bona
fide autem ementi vendidit, in solidum pretium rei quod
accepit tenebitur® A court of equity follows the pro-

 

1 Swift v. Holdridge, 10 Ohio, 230; Stickney v. Crane, 35 Vt. 89; vide
Baker v. Bartol, 6 Cal. 483.

2 Bostwick v. Beizer, 10 Abb. Pr. 197; Collumb v. Read, 24 N. Y. 505;
Grover v. Wakeman 4 Paige, 23; 8. c.,11 Wend. 187; Ames y. Blunt, 5
Paige, 13; Strong v. Skinner, 4 Barb, 546; Averill v. Loucks, 6 Barb. 470;
in re Wilson, 4 Penn. 430; Weber vy. Samuel, 7 Penn. 499; Kaupe v-
Bridge, 2 Robt. 459; Cummings vy. McCullough, 5 Ala. 824; Butler v.
Jaffray, 12 Ind. 504; Stickney v. Crane, 85 Vt. 89; Therasson v. Hickok,
37 Vt. 454; White v. Banks, 21 Ala. 705; How v. Camp, Walk. Ch. 427;
Bryant v. Young, 21 Ala. 264; vide Barcroft v. Snodgrass, 1 Cold. 430.

3 Ames v. Blunt, 5 Paige, 13.

* Weber v. Samuel, 7 Penn. 499.

5 Dig Lib, 42 tit. 9.
568 EXTENT OF GRANTER’S LIABILITY.

ceeds of the property and affords a remedy by turning
the legal owner into a trustee for the benefit of cred-
itors! The proceeds may be followed into any property
in which it has been invested so far as it can be traced.”
The grantee is liable for property which he has con-
verted to his own use? If he sells the property and
receives insufficient security, the loss falls upon him,
and not upon the creditors.* If he impedes the cred-
itors by unnecessary litigation, he will be held to make
good all loss which may be occasioned by his unjust
interference? When he gives notes as a consideration
for the transfer, he furnishes the debtor with facilities
for defrauding his creditors, and will, therefore, be held.
liable for the notes that are misapplied.’ If the prop-
erty has been mixed with other property of the grantee
so that the proceeds can not be ascertained, he may be
charged with the value and interest thereon."

 

1 Halbert v. Grant, 4 Mon. 580; Wright v. Hancock, 3 Munf. 521;
Hopkirk v. Randolph, 2 Brock. 132; How v. Camp, Walk. Ch. 427;
Grimsley v. Hooker, 3 Jones Eq. 41; Backhouse v. Jett, 1 Brock. 500;
Bryant v. Young, 21 Ala. 264; Van Winkle y. Smith, 26 Miss. 491;
Swinford v. Rogers, 28 Cal. 233; Jones vy. Reeder, 22 Ind. 111; Davis v.
Gibbon, 24 Iowa, 257; Ames v. Blunt, 5 Paige, 13; Keep v. Sanderson, 12
Wis. 352; Kelly v. Lane, 42 Barb. 594; 8. c., 18 Abb. Pr. 229; s, c., 28
How. Pr. 128; Hawkins v. Alston, 4 Ired. Eq. 137; McGill v. Harman, 2
Jones Eq. 179; Brown v. Godsey, 2 Jones Eq. 417; Clements v. Moore, 6
Wall. 299; vide Kaupe v. Bridge, 2 Robt. 459. The proceeds can not be
reached by an action at law. Lawrence v. Bank, 35 N. Y. 320 ; Simpson
vy. Simpson, 7 Humph. 275; Tubb v. Williams, 7 Humph. 367; Campbell
y. Erie R. R. Co. 46 Barb. 540; Childs v. Derrick, 1 Yerg. 79; Richards
y. Ewing, 11 Humph. 327; Contra, Abney v. Kingsland, 10 Ala. 355;
Carvill v. Stout, 10 Ala. 796; Lynch y. Welsh, 3 Penn. 294; Heath v.
Paige, 63 Penn. 108; French vy. Breidelman, 2 Grant, 319.

> Clements v. Moore, 6 Wall. 299; McGill v. Harman, 2 Jones Eq. 179.

* Van Winkle v. Smith, 26 Miss. 491; How v. Camp, Walk. Ch. 427.

‘ Robinson v. Boyd, 17 Mich. 128.

* Watson vy. Kennedy, 3 Strobbs. Eq. 1.

* Clements v. Moore, 6 Wall. 299.

" Steere v. Hoagland, 50 Ill. 377.
EXTENT OF GRANTEE’S LIABILITY. 569

Insurance.—The creditors have no claim to the
money paid to him upon a policy of insurance taken
out by him upon the property. He holds the legal
title by an unimpeachable right as against all the world
except the creditors, and the contingency does not affect
his right to obtain an insurance on the property in his
own name and for his own benefit. His insurable
interest is perfect and complete. An insurance is a
valid contract which he has the right to make, and the
benefit which accrues to him from it can not be
defeated by creditors on the ground that he holds the
property by a title which in a certain contingency may
be defeasible. The money received on the policy does
not stand in the place of the property destroyed. It is
in no proper or just sense the proceeds of the property.
It is a sum paid by the insurer in consideration of a
certain premium as an indemnity for the loss of the
property in which the insured has a legal and insurable
interest. This indemnity can not be taken away by
setting up a contingent right or title in the property+

REnTs AND PRoFITs.—The grantee may also be charged
with the rents and profits that have accrued from the
property. Ai fructus non tantum qui percepts sunt verum
etiam hi qui percipi potuerunt a fraudatore, veniunt. Par-
tum quoque im hance actionem venire, puto vertus esse. Pre-
terea generaliter sciendum est ex hac actione restitutionem
jiert oportere in pristinum statum, sive res fuerunt sive ob-
ligationes, ut perinde omnia revocentur ac si liberatio facta
non esset. Propter quod etiam medii temporis commo-
dum quod quis consequeretur liberatione non facta,
prestandum erit dum usure non prestentur st in stipu-
latum deductae non fuerunt ; aut si talis contractus fuct
inquo usure deberi potuerunt etiam non deduct. Haec

 

 Lerow v. Wilmarth, 9 Allen, 382.
570 EXTENT OF GRANTEE’S LIABILITY.

actio post annum de eo quod ad eum pervenit adversus
quem actio movetur, competit ; imiquum enim preetor
putavit, in lucro morari eum qui lucrum sensit ex fraude;
idcirco lucrum e eatorquendum putavit. Sive igitur
ipse fraudator sit ad quem pervenit, sive alius quivis,
compet actio in id quod ad eum pervenit, dolove malo
ejus factum est quominus perveniret. Non solum
autem ipsam rem alienatam restitui oportet, sed et
Fructus qui alienationis tempore terrae coherent, guia in
bonis fraudatoris fuerunt. Item eos qui post inchoatum
judicium recepti sint. Medio autem tempore perceptos in
restitutionem non venire2 Fructus autem fundo cohe-
sisse non satis intelligere se, Labeo ait, utrum duntaxat
qui maturé an etiam qui immaturi fuerint, pretor sig-
nificet. Coeterum etiam si de his senserit qui mature
fuerint, nihilo magis possessionem restitud oportere. Nam
cum fundus alienaretur, quod ad eum fructusque gus
attineret, unam quandam rem fuisse, id est, fundum
cujus omnis generis alienationem fructus sequi. Nec eum
qui hyberno tempore habuerit fundum centum, si sub
tempus messis, vindemieve, fructus ejus vendere possit
decem, ideirco duas res, id est, fundum centum et fructus
decem, eum habere intelligendum, sed unam, id est,
fundum centum; sicut is quoque unam rem haberet qui
separatim solum edium vendere possit®

FroM WHAT TIME PROFITS ARE COMPUTED.—It cer-
tainly is not consonant with the principles of the law
that the grantee should derive any advantage from his
fraud. Consequently, he may be compelled to account
for the profits from the time of the transfer.* An

 

* Dig. Lib., 42 tit. 9, §§ 20, 21, 24.

2 Dig. Lib., 42 tit. 9.

® Dig. Lib., 42 tit, 9.

‘ Strike v. M’Donald,2 H. &G. 191; Kipp v. Hanna, 2 Bland, 26; Mead
EXTENT OF GRANTEDR’S LIABILITY. 571

account may also be taken of what has been received as
compensation for the use of the property.! The grantee
should not be charged with the increased rent and
profits arising from improvements made by him?

Tae amount. — When the grantee has merely
received money on a voluntary bond, he is only liable
for the amount received’ If the grantee has merely
received a loan, and is innocent of all fraud, he will
only be compelled to pay the money at the time and in
the manner he agreed to pay it to the debtor. When
the property is allowed to stand as indemnity for the
amount paid by the grantee, he will be charged with
interest on the excess above the real value from the day
of the transfer.’

No INDEMNITY IN CASE OF ACTUAL FRAUD.—S?
debitor in fraudem creditorum minore pretio fundum
scientt emptor vendiderit ; deinde hi quibus de revo-
cando ¢0 actio datur, eum petant; quesitum est an pre-
tium restituere debeant ? Proculus existimat, omnimodo
restituendum esse fundum etiam si pretium non solvatur.
Et rescriptum est secundum Proculi sententiam. Ex
his colligi potest ne quidem portionem emptori reddendam

 

v. Coombs, 4 C. E. Green, 112; How v. Camp, Walk. Ch. 427; vide Sands
v. Codwise, 4 Johns. 586; Robinson v. Stewart, 10 N. Y. 189; Bean v.
Smith, 2 Mason, 252; Ringgold v. Waggoner, 14 Ark. 69; King v.
Wilcox, 11 Paige, 589; Blow v. Maynard, 2 Leigh, 29; Hipetie y: York
Building Co. 2 Atk. 107; Croft v. Arthur, 8 Dessau. 223; Backhouse v.
Jett, 1 Brock. 500 ; Pharis y. Leachman, 20 Ala. 662 ; Brown y. M’Donald,
1 Hill Ch. 297.

1 Shields v. Anderson, 3 Leigh, 729; Contra, Simpson v. Simpson, 7
Humph. 275.

? King v. Wilcox, 11 Paige, 589.

* Hopkirk v. Randolph, 2 Brock. 132.

4 Weed v. Pierce, 9 Cow. 722.

5 Drury v. Cross, 7 Wall. 299; Wilson y. Horr, 15 Iowa, 489.
572 EXTENT OF GRANTEE’S LIABILITY.

ea pretio, Posse tamen dici, eam rem apud arbitrum ex
causa animadvertendam ut si nummi soluti in bonis
eastent, jubeat eos reddi; quia ea ratione nemo fraude-
tur. ;

A transfer tainted with actual fraud is absolutely
void, although it is founded upon a valuable considera-
tion. Such is the doctrine at law, and in cases of actual
fraud equity follows the law and gives relief to the full
extent to which a court of law would give relief. There
is no instance of any reimbursement or indemnity
afforded by a court of equity to a particeps criminis in
a case of positive fraud. No right can be deduced from
a fraudulent act. Every one who engages in a fraudu-
lent scheme forfeits all right to protection either at law
or in equity. The law does not so far countenance
fraudulent contracts as to protect the perpetrator to the
extent of his investment. This doctrine is supported by
every principle of morality and justice, as well as by
the principles of sound policy. No party should be
permitted to join in a conspiracy to cheat another with
impunity. The law, therefore, will not permit the
transfer to stand as a security for the amount paid to
the debtor? or for the sums subsequently paid to
creditors, even though he thereby pays off a mortgage."

 

? Dig. Lib. 42, § 14.

* W’Kee vy. Gilchrist, 3 Watts, 230; Stovall v. Farmers’ Bank, 8 8. &
M. 305; Holland vy. Cruft, 20 Pick. 321; Sands v. Codwise, 4 Johns. 536 ;
How y. Camp, Walk. Ch. 427; Pettibone v. Stevens, 15 Conn. 19;
Moore v. Tarlton, 5 Ala. 444; Marriot v. Givens, 8 Ala. 694; Goodwin v.
Hammond, 13 Cal 168; Bibb v. Baker, 17 B. Mon. 292; Bleakley’s Ap-
peal, 66 Penn. 187; Miller v. Tolleson, Harp. Ch. 145; Brooks v. Caugh-
ran, 3 Head, 464.

* Williamson vy. Goodwyn, 9 Gratt. 503; Wood v. Hunt, 38 Barb. 302;
Borland v. Walker, 7 Ala. 269; Bean vy. Smith, 2 Mason, 252.

‘Pettus v. Smith, 4 Rich. Eq. 197; Wiley v. Knight, 27 Ala.
336.
EXTENT OF GRANTEE’S LIABILITY. 573

No allowance can be made to an assignee for his services
under a fraudulent assignment, or for the sum paid
to counsel after the lien of the creditors had at-
tached.”

*

f No srrorr.—lf the grantee is also a creditor, he can
not set off his debt against the demand upon him for the
property. As the transfer is void his title fails. He is
deemed to have come by the property wrongfully, and
to permit him to hold it by setting off his own debt
against it, would be giving effect to a transfer con-
demned by the law. It can not be done without a
sacrifice of the principle. The doctrine of set-off is
founded in natural justice, and never is applied to a
case where the party comes by property wrongfully.
He can no more be allowed his set-off against property
acquired by a fraudulent deed than if he had acquired
it tortiously.’ } Upon the same principle a creditor who
has assented to a fraudulent assignment can not set off
his claim against the proceeds of property placed in his
hands to sell as an auctioneer. It has, however, been
held that, when the property has been sold and the
creditors seek the proceeds, the amount due to the
grantee may be retained.°

Dest or GRANTEE—A fraudulent judgment cannot

 

+ Hastings v. Spencer, 1 Curt. 504; Brown vy. Warren, 43 N. H. 430;
vide Bishop v. Catlin, 28 Vt. 71.

? Hastings v. Spencer, 1 Curt. 504.

° Riggs v. Murray, 2 Johns. Ch. 565; 8. c.,15 Johns. 571; Harris v.
Sumner, 2 Pick. 129; Burtus v. Tisdall, 4 Barb. 571; Bean v. Smith, 2
Mason, 252; M’Kee y. Gilchrist, 3 Watts, 230; Wright v. Hancock, 3
Munf. 521; Thompson v. Drake, 3 B. Mon. 565; Wilson v. Horr, 15 Iowa,
489; Price v. Masterson, 35 Ala. 483; Foster v. Grigsby, 1 Bush, 86; vide
Goddard v. Hapgood, 25 Vt. 851; Bishop v. Catlin, 28 Vt. 71; Brown v.
Warren, 43 N. H. 480.

4 Hone v. Henriquez, 18 Wend. 240; 5. c, 2 Edw. 120.

® Tubb v. Williams, 7 Humph. 367; Peacock y. Tompkins, Meigs, 317.
574. EXTENT OF GRANTER’S LIABILITY.

even be used to collect the amount that is due to the
party to whom it is given.’ A fraudulent transfer does
not extinguish a debt due to the grantee, but as soon
as it is set aside the debt becomes available, and
the grantee is then entitled to share in the fund
the same as any other creditor holding the same
rank.

INDEMNITY IN CASE OF CONSTRUCTIVE FRAUD.— When
a transfer is not tainted with actual fraud, but is fraud-
ulent merely by construction of law, it will be allowed
to stand as security for the money advanced by the
grantee.2 This is especially true when a conveyance is
set aside in equity on the ground that it is partially
voluntary,’ or of such a suspicious character that it will
not do to let it stand while the proof will not warrant
the court in setting it aside altogether® The grantee

 

* Cleveland v. R. R. Co. 7 A. L. Reg. 587.

* Robinson vy. Stewart, 10 N. Y. 189; Dickinson v. Way, 3 Rich. Eq.
412; Riggs v. Murray, 2 Johns. Ch. 565; s. c. 15 Johns. 571; Johnston v.
Bank, 3 Stroth. Eq. 263; Yoder v. Sandiford, 7 Mon. 478; vide White v.
Graves, 7 J. J. Marsh. 523; Miller v. Tolleson, Harp. Ch. 145, Garland v.
Rives, 4 Rand. 282; Fryer v. Bryan, 2 Hill Ch. 56; Pettibone v. Stevens,
15 Conn. 19,

* Alley v. Connell, 3 Head, 578; Wood vy. Goff, 7 Bush, 59; Dohoney
v. Dohoney, 7 Bush, 217; M’Meekin v. Edmonds, 1 Hill Ch. 288;
Herschfeldt v. George, 6 Mich. 456; Tripp v. Vincent, 8 Paige, 176 ;
Neuffer v. Pardue, 3 Sneed, 191; Weedon y. Iawes, 13 Conn. 50; Sanford
v. Wheeler, 13 Conn. 165; Short v. Tinsley, 1 Met. (Ky.) 897; Scouton vy.
Bender, 3 How. Pr. 185; Anderson y, Fuller, 1 McMullan Ch. 273
Clements v. Moore, 6 Wall. 299; Drury v. Cross, 7 Wall. 299; Brown v.
M Donald, 1 Hill Ch. 297; Parker vy. Holmes, 2 Hill Ch 93.

* College vy. Powell, 12 Gratt. 872 ; Worthington y. Bullitt, 6 Md. 172;
Crumbaugh v. Kugler, 2 Ohio St. R. 878; Herschfeldt v. George, 6 Mich.
456; Church vy. Chapin, 385 Vt. 223; Corlett y. Radcliffe, 14 Moore P. C.
121.

* Boyd v. Dunlap, 1 Johns. Ch. 478; Bigelow v. Ayrault, 46 Barb 148;
Herne v. Mceres, 1 Vern. 465; Clements v. Moore, 6 Wall. 299; Bean v.
Smith, 2 Mason, 252; Doughten v. Gray, 2 Stockt, 323.
EXTENT OF GRANTEER’S LIABILITY. 575

of property which has been partially paid for
by the debtor, may be allowed for all payments.
made by him, for in such a case he is substitu-
ted to the rights of the vendor, whose title he
took. Compensation for services may also be al-
lowed?

ParryEr, FEME covert.—A partner who accepts a
fraudulent transfer of the partnership property from
his copartner, may be remitted to his lien as a partner
and thus secured in all his real advances for the firm.
If a feme covert participates in the fraud of her husband
in a conveyance, the consideration of which is the
relinquishment of her right of dower, the fraud by reason
of her coverture can not be imputed to her, and the
transfer will stand as security for her dower The
rents and profits will be deemed equivalent to the
interest,’ or deducted from the amount to be re-
funded.°

Expenpitures.— When the transfer is tainted with
actual fraud no allowance can be made for improve-
ments." It would seem, however, to be just and reason-
able to allow expenditures as an offset to rents and

 

? Gardiner Bank y. Wheaton, 8 Me. 378; Ogle v. Lichteberger, 1 A.
L. Reg. 121.

* Brown v. M’Donald, 1 Hill Ch. 297; Gardiner Bank v. Wheaton, 8
Me. 373.

* Thompson v. Drake, 8 B. Mon. 565.

‘ Blanton y. Taylor, Gilmer, 209; Quarles v. Lacy, 4 Munf. 251; Col-
lege v. Powell, 12 Gratt. 872; Taylor v. Moore, 2 Rand. 563; Ward vy.
Crotty, 4 Met. (Ky.) 59.

* Brown v. M’Donald, 1 Hill Ch. 297.

° Gardiner Bank v. Wheaton, 8 Me. 373.

7 Strike v. M’Donald, 2H. & G. 191; s.c. 1 Bland. 57; High v. Nelms,
14 Ala. 350; vide How vy. Camp Walk. Ch. 427; King v. Wilcox, 11
Paige, 589.
576 EXTENT OF GRANTEE’S LIABILITY.

profits! especially when they have been made to pay
taxes? Sed cum aliquo modo, scilicet ut sumptus facte
deducantur ; nam arbitrio judicis non prius cogendus
est rem restituere quam si tmpensas necessarias conse-
quatur.  Idemque erit probandum ea st quis alius
sumptus ex voluntate fidejussorum  creditorumque
fecerit® A donee who has taken possession and made |
improvements under a parol promise of a gift is
entitled to compensation for improvements. An
assignee claiming under a voluntary assignment is
allowed all his necessary expenses and disbursements in
collecting the debts and converting the property into
money.”

APPoRTIONMENT.—The whole amount in the hands
of the grantee may be appropriated to the payment
of the debts, although there may be other persons
equally liable,’ for the creditor is not bound to appor-
tion his debt among the various grantees. But, where
all the grantees are convened, and all the materials for
an apportionment are before the court, the demand will
be apportioned among the responsible parties, if it can
be done without any material delay or injury to the
creditor. This will be done, however, with a reservation
of the right to the creditor to resort for satisfaction to
all the parties responsible to him to the full extent of

 

* Croft v. Arthur, "3 Dessau. 228; Rucker v. Abell, 8 B. Mon. 566;
Byers v. Fowler, 12 Ark. 218; vide Strike v. M’Donald, 2H. & G. 191;
8. c. 1 Bland, 57.

* How y. Camp, Walk. Ch. 427; King v. Wilcox, 11 Paige, 589; vide
Strike v. M’Donald, 2 H. & G. 191; 8. c, 1 Bland, 57.

® Dig. Lib. 42 tit. 9, § 20. '

‘ Rucker y. Abell, 8 B. Mon. 566.

° Strong v. Skinner, 4 Barb. 546; Bishop v. Catlin, 28 Vt. 71; Brown
v. Warren, 43 N. H. 430; Therasson v. Hickok, 37 Vt. 454.

* Hopkirk y, Randolph, 2 Brock, 1382; Van Wyck v. Seward, 18 Wend.
375.
EXTENT OF GRANTER’S LIABILITY. 577

their liabilities respectively in the event of his failing,
from insolvency or any other cause, to procure satisfac.
tion from any of the parties of their due proportion of
his demand.’ The surplus which may remain after the
payment of the debt and costs belongs to the grantee.’
The grantee may retain what is exempt from execu-
tion.

* Chamberlayne v. Temple, 2 Rand. 384; Brice v. Myers, 5 Ohio, 121.

* Wood v. Hunt, 38 Barb. 302; Birtch v. Elliott, 3 Ind. 99; King v.
Tharp, 26 Iowa, 283; Allen v. Trustees, 102 Mass. 262; Freeman y.
Burnham, 36 Conn. 469; Norton v. Norton, 5 Cush. 524; Bostwick y.
Minck, 40 N. Y. 383.

’ Martel v. Somers, 26 Tex. 551.

37
CASES FROM THE YEAR BOOKS.

En briefe de Det port vers deux execut’s J. B. les queux
diont per Horton, que le dit J. B. en sa vie doner touts ses
biens a eux y un fait q’ ils monstre avant sans ¢’ q’ ils averont
Vadmistrac’ des aut’s biens, etc., judgem’t si acc’. Trem. mesme
cel done fuit fait y fraude et colluss’ pur ouster no’ et aut’s as
queux il fuit dettor de nostr’ action prist, ete., per q’ nous
priom’ nr’e det. Horton dist q’ le done fuit fait bona fide sans
ascun tiel, etc., prist & sic ad patriam quod nota—13 Henry

IV, f4.

En un bill de trespass dun chival et iiij. vach a tort prises,
ete., port vers T. de W. et R. de N. Les queux plede de rien
culp: trove fuit y Enquest, que le dit R. avoit ree’ vers J. B.
rrs, en la Court de P., per que le dit T. come baily, ete., prist
mesms les vaches en nosm dexec. et les livera a mesm cesty
R. et amesna a chastel de P. Et oustr’ ils dis. que mesms
les bestes fur’ les bestes le dit J. B. jour de judgment rendu;
mes il les dona puis y fait a mesm cesty qui ore se pl’ y fraud
a delaier exec, Et ils fur’ opposez de la Court a dire qui
prist les profits de mesms les bestes en le mean temps. Qui
dis. Sir, le donor. Thorp; jeo entend ceo don de nul valu, et
jeo tien q’ ce’y a qui tiel don fuit fait le fist fors gardein des
bestes al’ oepz autre’ quia fraus & dolus, &c. Car autrement

en aur’ jamais home exec. des chat’; y q’ prenes rien y vostre
bill— Zi. As. 101, f. 72.
CASES FROM THE YEAR BOOKS.

TRANSLATION.

In a writ for debt brought against two executors of J. B.
they say by Horton that the said J. B., in his life, gave them
all his property, by a deed of which they make profert without
their having the administration of the other property. Judg-
ment s¢ actio.

Trem. This same gift was made fraudulently and collu-
sively to oust us and others, to whom he was a debtor, from
our action. Ready, ete. Wherefore we pray for our debt.

Horton says that the gift was made in good faith without
any such, etc. Ready, and so tothe country, quod nota.

In a bill for trespass for one horse and four cows tortiously
seized, &c., brought against T. of W. and R. of N., who plead
not guilty: it was found by inquest that the said R. had
recovered against J. B. rrs. in the court of P., on authority of
which the said T., as bailiff, etc., took the said cows in execu-
tion and delivered them to R. and carried them to the castle of
P. Furthermore, they say that the said beasts were the beasts
of the said J. B. on the day when the judgment was rendered,
but he gave them afterwards by deed to him who is now
plaintiff fraudulently to delay execution. And they were in-
terrogated by the court as to this point; who received the
profits of the beasts in the meantime? They said, Sir, the
donor.

Thorpe. I consider the gift null and void, and hold that
he to whom such a gift was made became only keeper of the
beasts for the use of the other, because fraud and deceit, &c.
For otherwise a man would never have execution on chattels ;
wherefore take nothing by your bill.
580 CASES FROM THE YEAR BOOKS.

En le chancery un bill fuit abatu pur non suffic. del matter,
et le pl’ dit q’ cel bill fuit misconceive; mes il mr’a pur son
matter q. J. B. que est jades baron le def. achata del pere le
pl’ q’ execut’ il est a Brig, certein bn’s al value de C marks,
ete. Et puis m’ cestuy J. B. vient en Engleterre et p’ de-
frandr’ son dettor fist un done de ses bn’s a un tiel, etc., mes
il continua, son possess. et prist Westm. et morust, et ses bn’s.
continua en le poss. la feme, etc., et puis el prist m’ cestuy q’
est supp’ destre def. al baron, et ala en Lond; et emport m’ le
bn’s ove luy et est seisie et poss. de eux, etc., le quel matter,
&e. Et priom’ q’ il rn’d a cel matter et bill, et il aver copy
de ceo et issint agard le court, quod nota, &c.—16 dw. IV,
folio 9.

Scire facias des dams’ recouer’ le vicont ret’ que le defend-
ant aw’ vend ces chateaux en fraude de tolt’ lexecucion. 9
Scroop: home puit bien auer vendu ces chateaux cy bien
apres jugement come deuaunt sauns ce que exec’ se fra deux
chateaux.—Lvtzherberts Abdgt., Execution pl. 108,

DB Det y Belk. si home recouera dam’ et le defendant
alien ses bn’s y fraude la issue poet estre prise s’ ’ et si soit
troue le pl aw’a executio del bn’s alien y fraud qd non negat.
—Brook’s Abr., Collusion, pl. 9.
CASES FROM THE YEAR BOOKS. 581

In chancery a bill was dismissed as insufficient in substance,
and the plaintiff said that the bill was misconceived, but he
showed for his substance that J. B., who was the former hus-
band of the defendant, bought of the plaintifi’s father, whose
executor he is at Brig, certain property, of the value of one
hundred marks, &c. And afterwards the same J. B. came to
England, and to defraud his creditors made a gift of his prop-
erty to a certain person, &¢., but he continued his possession
and took refuge at Westminster and died, and his property
continued in the possession of his wife, &c., and afterwards she
married the person who is supposed to be defendant, and went
to London and took the said property with her, and is seized
and possessed of it, &c., which substance, &c. And we pray
that he makes answer to this matter and bill, and that he have
copy of it, and thus the court awarded, guod nota, &e.

Scire facias for damages recovered. The sheriff returns
that the defendant had fraudulently sold the chattels to pre-
vent execution.

Scroop. These chattels might very well have been sold as
well after judgment as before, provided that execution on the
chattels had not already issued.

Debt by Belk. If a man recover damages, and the de-
fendant alienate his goods fraudulently, the issue may be taken
on that, and, if it be found, the plaintiff can have execution on
the goods fraudulently alienated ; guod non negat.
APPENDIX.

STATUTES OF THE VARIOUS STATES.

ENGLAND.

50 E. III, Car. 6.

Ztem. Because that divers people inherit of divers tene-
ments, borrowing divers goods in money or in merchandise of
divers people of this realm, do give their tenements and chat-
tels to their friends, by collusion thereof to have the profits at
their will, and after do flee to the franchise of Westminster, of
St. Martin le Grand, of London, or other such privileged
places, and there do live a great time with an high counte-
nance of another man’s goods, and profits of the said
tenements and chattels, till the said creditors shall be bound to
take a small parcel of their debt, and release the remnant ; it
is ordained and assented, that if it be found that such gifts be
so made by collusion, that the said creditors shall have execu-
, tion of the said tenements and chattels as if no such gift had
been made.

3 H. VII, Cap. 4.

litem. That where oftentimes deeds of gift of goods and
chattels have been made, to the intent to defraud their cred-
itors of their duties, and that the person or persons that maketh
the said deed of gift goeth to the sanctuary, or other places
privileged, and occupieth and liveth with the said goods and
chattels, their creditors being unpaid ; it is ordained, enacted,
and established by the assent of the Lords Spiritual and Tem-
poral, and at the request of the Commons in the said Parlia-
584 APPENDIX.

ment assembled, and by the authority of the same, that all
deeds of gift of goods and chattels made or to be made of
trust, to the use of that person or persons that made the same
deed or gift, be void and of none effect.

13 Exiz., Cap. 5.

For the avoiding and abolishing of feigned, covinous, and
fraudulent feoffments, gifts, grants, alienations, conveyances,
bonds, suits, judgments, and executions, as well of lands and
tenements, as of goods and chattels, more commonly used and
practised in these days, than hath been seen or heard of here-
tofore ; which feoffments, gifts, grants, alienations, conveyances,
bonds, suits, judgments, and executions, have been, and are
devised and contrived of malice, fraud, covin, collusion, or
guile, to the end, purpose, and intent, to delay, hinder, or de-
fraud creditors and others of their just and lawful actions, suits,
debts, accounts, damages, penalties, forfeitures, heriots, mortu-
aries, and reliefs, not only to the let or hindrance of the due
course and execution of law and justice, but also to the over-
throw of all true and plain dealing, bargaining, and chevisance
between man and man, without the which no commonwealth or
civil society can be maintained or continued :

JI. Be it therefore declared, ordained, and enacted by the
authority of this present Parliament, that all and every feoff-
ment, gift, grant, alienation, bargain, and conveyance of lands,
tenements, hereditaments, goods, and chattels, or any of them,
or of any lease, rent, common, or other profit or charge out of
the same lands, tenements, hereditaments, goods, and chattels,
or any of them, by writing or otherwise; and all and every
bond, suit, judgment, and execution, at any time had or made
sithence the beginning of the Queen’s Majesty’s reign that now
is, or at any time hereafter to be had or made, to or for any
intent or purpose before declared and expressed, shall be from
henceforth deemed and taken (only as against that person or
persons, his or their heirs, successors, executors, administrators,
and assigns, and every of them, whose actions, suits, debts,
accounts, damages, penalties, forfeitures, heriots, mortuaries,
and reliefs, by such guileful, covinous or fraudulent devices and
STATUTES OF THE VARIOUS STATES. 585

practices as is aforesaid, are, shall, or might be in any wise dis-
turbed, hindered, delayed, or defrauded), to be clearly and
utterly void, frustrate, and of none effect; any pretence, color,
feigned consideration, expressing of use, or any other matter or
thing to the contrary notwithstanding.

III. And be it further enacted by the authority aforesaid,
that all and every the parties to such feigned, covinous, or
fraudulent feoffment, gift, grant, alienation, bargain, convey-
ance, bonds, suits, judgments, executions, and other things
before expressed, and being privy and knowing of the same,
or any of them, which at any time after the tenth day of June
next coming, shall wittingly and willingly put in use, avow,
maintain, justify, or defend the same, or any of them, as true,
simple, and done, had or made bona fide, and upon good con-
sideration; or shall alien, or assign any the lands, tenements,
goods, leases, or other things before mentioned, to him or
them conveyed, as is aforesaid, or any part thereof, shall incur
the penalty and forfeiture of one year’s value of the said lands,
tenements, and hereditaments, leases, rents, commons, or
other profits, of or out of the same; and the whole value of
said goods and chattels, and also so much money as are or shall
be contained in any such covinous and feigned bond; one
moiety whereof to be the Queen’s Majesty, her heirs and suc-
cessors, and the other moiety to the party or parties grieved
by such feigned and fraudulent feoffment, grant, alienation,
bargain, conveyance, bonds, suits, judgments, executions,
leases, rents, commons, profits, charges, and other things afore-
said, to be recovered in any of the Queen’s Courts of Record,
by action of debt, bill, plaint, or information, wherein no essoin,
protection, or wager of law shall be admitted for the defend-
ant or defendants; and also being thereof lawfully convicted,
shall suffer imprisonment for one half year without bail or
mainprise.

VI. Provided also, and it be enacted by the authority
aforesaid, that this act, or anything therein contained, shall not
extend to any estate or interest in lands, tenements, heredita-
ments, leases, rents, commons, profits, goods, or chattels, had,
made, conveyed or assured, or hereafter to be had, made,
586 APPENDIX.

conveyed, or assured; which estate or interest, is or shall be
upon good consideration, and bona fide lawfully conveyed or
assured to any person or persons, or bodies politick or corpor-
ate, not having at the time of such conveyance or assurance to
them made, any manner of notice or knowledge of such covin,
fraud, or collusion, as is aforesaid; any thing before mentioned
to the contrary hereof notwithstanding.

VII. This Act to endure unto the end of the first session of
the next Parliament.

Norr.—This Act was made perpetual by 29 Eliz., cap 5.

VERMONT.
Cuarter 113.

§ 82. All fraudulent and deceitful conveyances of houses,
lands, tenements, or hereditaments, or of goods and chattels,
all bonds, bills, notes, contracts and agreements, all suits, judg-
ments, and executions, made or had to avoid any right, debt,
or duty of any other person, shall as against the party or
parties only whose right, debt, or duty is attempted to be
avoided, their heirs, executors, administrators, or assigns be
null and void.

§ 33. All the parties to such fraudulent and deceitful con-
veyances (of houses, &c.), and to all such suits, &c., as are
mentioned in the preceding section, who, being priory thereto,
shall justify the same to have been made, had, or executed
bona fide, and upon good consideration, or who shall alien or
assign any such houses, &c., so conveyed to him, or them as
aforesaid, shall forfeit the value of such houses, &c., and the
value of such goods and chattels, also so much money as is
mentioned in such covinous bond, bill, &e.; which forfeitures
shall be equally divided between the party aggrieved and the
county in which such offence is committed, to be secured by
action on the case founded on this statute.

§ 84. In any action brought on the preceding section of this
chapter, all persons being parties or privies to such fraudulent
and deceitful conveyances may be joined as party defendants in
such action.
STATUTES OF THE VARIOUS STATES, 587

Cuapter 34,

§ 48. If any person who is summoned as a trustee shall
have in his possession any goods, effects, or credits of the prin-
cipal defendant, which he holds by a conveyance or title that
is void as to the creditors of the defendant, he may be ad-
judged a trustee on account of such goods, effects or credit, al-
though the principal defendant could not have maintained an
action therefore against him.

Cuarter 65.

§ 28. All fraudulent and deceitful deeds, conveyances and
alienations of lands, or of any estate or interest therein, and
every charge upon lands, or upon the rents and profits thereof,
procured, made, or suffered, with intent to avoid any right,
debt, or duty of any person shall as against such person whose
right, debt, or duty shall be so intended to be avoided, his
heirs or assigns, be utterly void.

RHODE ISLAND.

§ 2. Every gift, grant, or conveyance of lands, tenements,
hereditaments, goods, or chattels, or of any rent, interest or
profit out of the same, by writing or otherwise, and every note,
bill, bond, contract, suit, judgment, or execution, had or made
and contrived, of fraud, covin, collusion, or guile, to the intent
or purpose to delay, hinder, or defraud creditors of their just
and lawful actions, suits, debts, accounts, damages or just de-
mands of what nature soever; or to deceive or defraud those
who shall purchase bona side the same lands, tenements, here-
ditaments, goods, or chattels, or any rent, interest, or profit out of
them, shall be henceforth deemed and taken as against the person
or persons, his, her, or their heirs, successors, executors, adminis-
trators, or assigns, and every of them, whose debts, suits, de-
mands, estates, rights, or interests, by such guileful and covin-
ous devices and practices as aforesaid, shall or might be in any
wise injured, disturbed, hindered, delayed, or defrauded, to be
clearly and utterly void ; any pretence, color, feigned consider-
ation, expressing of use, or any other matter or thing to the
contrary notwithstanding.—Page 22, Public Laws of Rhode
Island.
588 APPENDIX.

CONNECTICUT.

Be it enacted by the Senate and House of Representatives in
General Assembly convened :

§ 1. That all fraudulent and deceitful conveyances of lands
and tenements, or any interest in them, or, of goods and chat-
tels, and all bonds, suits, judgments, executions, or contracts,
made with intent to avoid any debt, or duty, of others, shall be
utterly void, as against those persons only, their heirs, execu-
tors, administrators or assigns, whose debt, or duty, is endeav-
ored to be avoided, notwithstanding any consideration upon
which such contract may be pretended to have been made.

§ 2. And all the parties to such fraudulent contract know-
ing the fraud, who shall willingly justify the same, as being
made bona fide, and on good consideration, shall forfeit one
year’s value of the land, and the whole value of the goods and
chattels, and as much money as shall be contained in such
fraudulent bond or contract, one-half to the party aggrieved,
who shall sue for the same, and prosecute the suit to effect, and
the other half to the treasury of the State-—Revised Statutes
of Conn., Title 20.

NEW YORK.

§ 1. All deeds of gift, all conveyances, and all transfers or
assignments, verbal or written, of goods, chattels, or things in
action, made in trust for the use of the person making the
same, shall be void as against the creditors, existing or subse-
quent, of such person.

§ 5. Every sale made by a vendor, of goods and chattels in
his possession or under his control, and every assignment of
. goods and chattels by way of mortgage or security, or upon any

condition whatever, unless the same be accompanied by an im-
mediate delivery, and be followed by an actual and continued
' change of possession of the things sold, mortgaged or assigned,
shall be presumed to be fraudulent and void as against the
creditors of the vendor, or creditors of the person making such
assignment, or subsequent purchasers in good faith ; and shall
be conclusive evidence of fraud, unless it shall be made to ap-
pear, on the part of the persons claiming under such sale or
STATUTES OF THE VARIOUS STATES. 589

assignment, that the same was made in good faith, and without |
any intent to defraud such creditors or purchasers.— Title 2, ,
Revised Statutes of New York.

§ 1. Every conveyance or assignment, in writing or other-
wise, of any estate or interest in lands, or in goods or things in
action, or of any rents or profits issuing therefrom, and every
charge upon lands, goods, or things in action, or upon the
rents or profits thereof, made with the intent to hinder, delay,
or defraud creditors or other persons of their lawful suits, dam-
ages, forfeitures, debts, or demands, and every bond or other
evidence of debt given, suit commenced, decree or judgment
suffered, with the like intent, as against the persons so hin-
dered, delayed or defrauded, shall be void.

§ 3. Every conveyance, charge, instrument or proceeding
declared to be void, by the provisions of this chapter, as against
creditors and purchasers, shall be equally void against the heirs,
successors, personal representatives or assignees of such credit-
ors and purchasers.

§ 4. The question of fraudulent intent in all cases arising
under the provisions of this chapter, shall be deemed a question
of fact and not of law; nor shall any conveyance or charge be
adjudged fraudulent as against creditors or purchasers, solely
on the ground, that it was not founded on a valuable considera-
tion. .

§ 5. The provisions of this chapter shall not be construed
in any manner, to affect or impair the title of a purchaser for a
valuable consideration, unless it shall appear, that such pur-
chaser had previous notice of the fraudulent intent of his imme-
diate grantor, or of the fraud rendering void the title of such
grantor.— Title 8, Revised Statutes of New York.

NEW JERSEY.

1. Every deed of gift, and conveyance of goods and chat-
-tels, made or to be made, in trust to the use of the person or
persons, making the same deed of gift or conveyance, shall be,
and hereby is declared to be void and of no effect.

2. And for the avoiding and abolishing of all feigned, co-
vinous, and fraudulent feoffments, gifts, grants, alienations,
590 APPENDIX. 1

conveyances, bonds, suits, judgments and executions, as well of
lands and tenements, as goods and chattels, which have been
and are devised and contrived of malice, fraud, covin, collusion,
or guile, to the end, purpose and intent, to delay, hinder or
defraud creditors, and others of their just and lawful actions,
suits, debts, accounts, damages, penalties, forfeitures and de-
mands, not only to the let or hindrance of the due course and
execution of law and justice, but also to the overthrow of all
true and plain dealing, agreements, bargains, contracts and
traffic between man and man, without which no commonwealth
or civil society can be maintained or continued: All and every
feoffment, gift, grant, alienation, bargain and conveyance of
lands, tenements, hereditaments, goods and chattels, or any of
them, or of any lease, rent, common or other profit or charge
out of the same lands, tenements, hereditaments, goods and
chattels, or any of them, by writing or otherwise, and all and
every bond, suit, judgment and execution, at any time hereto-
fore had or made, or hereafter to be had or made, to or for any
intent or purpose before declared and expressed, shall be
deemed and taken, (only as against that person or those per-
sons, his, her, or their heirs, successors, executors, administra-
tors, and assigns, and every of them, whose actions, suits, debts,
accounts, damages, penalties, forfeitures and demands, by such
guileful, covinous or fraudulent devices, and practices, as afore-
said, are or shall, or may be in anywise disturbed, hindered, or
defeated,) to be clearly and utterly void, frustrate, and of no
effect ; any pretence, color, feigned consideration, expressing of
use, or any other matter or thing to the contrary notwith-
standing.

4. All and every the parties to such feigned, covinous, and
fraudulent feoffment, gift, grant, alienation, bargain, lease,
charge, conveyance, bonds, suits, judgments, executions, and
other things before expressed, or being privy to and knowing
of the same, or any of them, who at any time hereafter, shall
wittingly and willingly put in use, avow, maintain, justify or
defend the same, or any of them, as true, simple, and done, had
or made, bona fide, and upon good consideration, or shall alien
or assign, any the lands, tenements, goods, leases, or other
things before mentioned, to him, her, or them conveyed as
STATUTES OF THE VARIOUS STATES. 591

aforesaid, or any part thereof, shall incur the penalty and for-
feiture of one year’s value of the said lands, tenements and here-
ditaments, leases, rents, commons or other profits, of or out of
the same, and the whole value of the said goods and chattels,
and also so much money as is or shall be contained in any such
covinous and feigned bond; the one moiety whereof to be to
the State, and the other moiety to the party or parties grieved
by such feigned and fraudulent feoffment, gift, grant, aliena-
tion, bargain, conveyance, bonds, suits, judgments, executions,
leases, rents, commons, profits, charges, and other things afore-
said; to be recovered in any court of record by action of debt,
bill, plaint or information.

6. This act, or anything therein contained, shall not extend
to, or be construed to impeach, defeat, make void or fraustrate
any conveyance, assignment of lease assurance, grant, charge,
lease, estate, interest or limitation of use or uses, of, in, to, or
out of any lands, tenements or hereditaments, goods or chattels,
at any time heretofore had or made, or hereafter to be had or
made, upon or for good consideration, and bona fide, to any
person or persons, bodies politic or corporate, not having, at
the time of such conveyance or assurance to him, her, or them
made, any manner of notice or knowledge of such covin, fraud
or collusion, as aforesaid; and also that no lawful mortgage
made, or to be made, bona jide, and without fraud or covin, and
upon good consideration, shall be impeached or impaired, by
force of this act; but every such mortgage shall stand in like
force and effect, as the same should have done if this act had
never been made; anything before in this act to the contrary
notwithstanding. The Laws of New Jersey, Nixon’s Digest,

804.
[Nov. 26th, 1794, R. 8. 499.]

VIRGINIA.

1. Every gift, conveyance, assignment, or transfer of, or
charge upon, any estate, real or personal, every suit com-
menced, or decree, judgment, or execution suffered or obtained,
and every bond or other writing given, with intent to delay,
hinder, or defraud creditors, purchasers, or other persons, of or
from what they are or may be lawfully entitled to, shall as to
592 APPENDIX.

such creditors, purchasers, or other persons, their representa-
tives or assigns, be void. This section shall not effect the title
of a purchaser for valuable consideration, unless it appear that
he had notice of the fraudulent intent of his immediate grantor,
or of the fraud rendering void the title of such grantor.

9. Every gift, conveyance, assignment, transfer, or charges
which is not upon consideration deemed valuable in law, shall
be void as to creditors whose debts shall have been contracted
at the time it was made, but shall not, on that account merely,
be void as to creditors, whose debts shall have been contracted,
or as to purchasers who shall have purchased, after it was made ;
and though it be decreed to be void as to a prior creditor, be-
cause voluntary, it shall not for that cause be decreed to be
void as to subsequent creditors or purchasers.—Chap. CX VIII,
Code of Virginia, 1860.

WEST VIRGINIA.

1. Every gift, conveyance, assignment, or transfer of, or
charge upon any estate, real or personal, every suit commenced,
or decree, judgment, or execution suffered or obtained, and
every bond or other writing given, with intent to delay, hinder,
or defraud creditors, purchasers, or other persons, or of from
what they are or may be lawfully entitled to shall as to such
creditors, purchasers, or other persons, their representatives or
assigns be void. This section shall not affect the title ofa
purchaser for valuable consideration, unless it appear that he
had notice of the fraudulent intent of his immediate grantor,
or of the fraud rendering void the title of such grantor.

2. Every gift, conveyance, assignment, transfer, or charge,
which is not upon consideration deemed valuable in law, shall
be void as to creditors, whose debts shall have been contracted
at the time it was made, but shall not, on that account merely,
be void as to creditors whose debts shall have been contracted,
or as to purchasers who shall have purchased after it was made 5
and though it be decreed to be void as to a prior creditor, be-
cause voluntary, it shall not for that cause be decreed to be
void as to subsequent creditors or purchasers —Chap. LXXIV,
Code of West Virginia, 1868.
STATUTES OF THE VARIOUS STATES. 593

NORTH CAROLINA.

1. For avoiding and abolishing feigned, covinous, and
fraudulent gifts, grants, alienations, conveyances, bonds, suits,
judgments, and executions, as well of lands and tenements as
of goods and chattels, which may be contrived and devised of
fraud, to the purpose and intent to delay, hinder, and defraud
creditors and others of their just and lawful actions and
debts.

2. Be it enacted, That every gift, grant, alienation, bargain,
and cortveyance of lands, tenements, hereditaments, goods and
chattels, by writing or otherwise, and every bond, suit, judg-
ment, and execution, at any time had or made, to or for any
intent or purpose last before declared and expressed, shall be
deemed and taken (only as against that person, his heirs, ex-
ecutors, administrators, and assigns, whose actions, debts, ac-
counts, damages, penalties, and forfeitures, by such covinous
or fraudulent devices and practices aforesaid, are, shall, or
might be in any way disturbed, hindered, delayed or de-
frauded), to be utterly void and of no effect; any pretence,
color, feigned consideration, expressing of use, or any other
matter or thing to the contrary notwithstanding.

3. No voluntary gift or settlement of property by one in-
debted, shall be deemed or taken to be void in law as to
creditors of the donor or settler prior to such gift or settlement,
by reason merely of such indebtedness, if property, at the time
of making such gift or settlement, fully sufficient and available
for the satisfaction of all his then creditors, be retained by
such donor or settler; but the indebtedness of the donor or
settler at such time shall be held and taken, as well with re-
spect to creditors prior as creditors subsequent to such gift or
settlement, to be evidence only from which an intent to delay,
hinder, or defraud creditors may be inferred; and in any trial
at law shall, as such, be submitted by the court to the jury,
with such observations as may be right and proper.

4. Nothing contained in the foregoing sections shall be
construed to impeach or make void any conveyance, interest,
limitation of use or uses, of or in any lands or tenements, goods
or chattels, bona fide made, upon any for good consideration, to

38
594 APPENDIX.

any person not having notice of such fraud.—Chap. 50, Re-
vised Code of North Carolina.

GEORGIA.

§ 1942. The following acts by debtors shall be fraudulent
in law against creditors, and as to them null and void, viz:

1. [Every assignment or transfer by a debtor, insolvent at
the time, of real or personal property, or choses in action of
any description to any person, either in trust or for the benefit
of, or in behalf of creditors, where any trust or benefit is re-
served to the assignor or any person for him.]

2. Every conveyance of real or personal estate by writing
or otherwise, and every bond, suit, judgment, and execution, or
contract of any description, had or made with intention to de-
lay or defraud creditors, and such intention known to the
party taking; a bona jide transaction on a valuable considera-
tion, and without notice or grounds for reasonable suspicion
shall be valid.

Every voluntary deed or conveyance, not for a valuable con-
sideration, made by a debtor insolvent at the time of such con-
veyance.

§ 19438. A debtor may prefer one creditor to another, and
to that end he may bona fide give a lien by mortgage or other
legal means, or he may sell in payment of the debt, or he may
transfer negotiable papers as collateral security, the surplus
in such cases not being reserved for his own benefit or that of
any other favored creditor, to the exclusion of other creditors.
—Article II, Code of Georgia, 1868.

FLORIDA. :

§ 1. Every feoffment, gift, grant, alienation, bargain, sale,
conveyance, transfer and assignment of lands, tenements,
hereditaments, and other goods and chattels, or any of them,
or any lease, rent, use, common or other profit, benefit or charge
whatever, out of lands, tenements, hereditaments, or other
goods and chattels, or any of them, by writing or otherwise,
and every bond, note, contract, suit, judgment and execution,
STATUTES OF THE VARIOUS STATES. . B95

which shall at any time hereafter be had, made or executed,
contrived or devised, of fraud, covin, collusion, or guile, to the
end, purpose or intent to delay, hinder, or defraud creditors or
others of their just and lawful actions, suits, debts, accounts,
damages, demands, penalties, or forfeitures, shall be from
henceforth, as against the person or persons, or body politic or
corporate, his, her or their heirs, successors, executors, admin-
istrators and assigns, and every of them so intended to be de-
layed, hindered or defrauded, deemed, held, adjudged and
taken, to be utterly void, fraustrate, and of none effect; any
pretence, color, feigned consideration, expressing of use, or
any other matter or thing to the contrary notwithstanding :

Provided, That the foregoing section of this act, or any-
thing therein contained, shall not extend to any estate or
interest in lands, tenements, hereditaments, leases, rents, uses,
commons, profits, goods or chattels, which shall be had, made,
conveyed, or assured, if such estate or interest shall be upon
good consideration, and bona fide, lawfully conveyed or assured
to any person or persons, body politic or corporate, not having
at the time of such conveyance or assurance to them made, any
manner of notice or knowledge of such covin, fraud or collu-
sion, as aforesaid, anything in the said section to the contrary
notwithstanding.—Chap. XX VIL, Bush’s Digest of the Stat-
ute Law of Florida.

ALABAMA.

§ 1550. All deeds of gift, all conveyances, transfers and
assignments, verbal or written, of goods, chattels or things in
action, made in trust for the use of the person making the
same, are void against creditors, existing or subsequent, of
such person.

§ 1554. All conveyances or assignments, in writing or oth-
erwise, of any estate or interest in real or personal property,
and every charge upon the same, made with intent to hinder,
delay or defraud creditors, purchasers, or other persons, of their
lawful suits, damages, forfeitures, debts, or demands; and
every bond or other evidence of debt given, suit commenced,
decree or judgment suffered, with the like intent, against the
596 APPENDIX.

persons who are or may be so hindered, delayed, or defrauded,
their heirs, personal representatives and assigns, are void.—

Chap. IV, Article I, Code of Alabama.

TEXAS.

Arr. 3876. [1.] Be it further enacted, That every gift, grant
or conveyance of lands, slaves, tenements, hereditaments, goods
or chattels, or of any rent, common or profit out of the same,
by writing or otherwise, and every bond, suit, judgment or
execution had or made and contrived of malice, fraud, covin,
collusion or guile, to the intent or purpose to delay, hinder or
defraud creditors of their just and lawful actions, suits, debts,
accounts, damages, penalties or forfeitures, or to defraud, or to
deceive those who shall purchase the same lands, slaves, tene-
ments or hereditaments, or any rent, profit or commodity out
of them, shall be from henceforth deemed and taken only as
against the person or persons, his or her or their successors,
executors, administrators or assigns, and every of them, whose
debts, suits, demands, estates, interests, by such guileful and
covinous devices and practices as is aforesaid, shall or might
be in any wise disturbed, hindered, delayed or defrauded, to
be clearly and utterly void; any pretence, color, feigned con-
sideration, expressing of use, or any other matter or thing to
the contrary notwithstanding.

Art. 3877. [8.] Be it further enacted, That the second
section of this Act shall not extend to any estate or interest in
any lands, goods, chattels, slaves, or any rents, common or profit
out of the same, which shall be upon good consideration and bona
Jide lawfully conveyed or assured to any person or persons,
bodies politic or corporate.—Act of January 18th, 1840, Laws
of Texas, Paschal’s Digest.

OHIO.

§ 1. Be it enacted by the General Assembly of the State of
Ohio: That all deeds of gifts and conveyances of goods and
chattels, made in trust to the use of the person or persons mak-

ing the same, shall be, and hereby are declared to be void and
of no effect.
STATUTES OF THE VARIOUS STATES. 597

§ 2. That every gift, grant or conveyance of lands, tene-
ments, hereditaments, rents, goods or chattels, and every bond,
judgment or execution, made or obtained with intent to de-
fraud creditors of their just and lawful debts or damages, or to
defraud or to deceive the person or persons who shall purchase
such lands, tenements, hereditaments, rents, goods or chattels,
shall be deemed utterly void and of no effect.—Chap. 47, Re-
vised Statutes of Ohio.

KENTUCKY.

§ 1. Be it enacted by the General Assembly of the Com-
monwealth of Kentucky: That every gift, conveyance, as-
signment or transfer of, or charge upon any estate, real or
personal, or right or thing in action, or any rent or profit thereof
made with the intent to delay, hinder or defraud creditors,
purchasers or other persons, and every bond or other evidence
of debt given, suit commenced, decree or judgment suffered,
with like intent, shall be void as against such creditors, pur-
chasers, and other persons.

This section shall not affect the title of a purchaser for valu-
able consideration, unless it appear that he had notice of the
fraudulent intent of his immediate grantor, or of the fraud ren-
dering void the title of such grantor.

§ 2. Every gift, conveyance, assignment, transfer or charge
made by a debtor of .or upon any of his estate, without valu-
able consideration therefor, shall be void as to all his then
existing liabilities, but shall not, on that account alone, be void
as to creditors whose debts or demands are thereafter con-
tracted, or as to purchasers with notice of the voluntary alien-
ation or charge; and though it be adjudged to be void as to a
prior creditor, it shall not therefore be decreed to be void as
to such subsequent creditors or purchasers.— Chap. 40, Revised
Statutes of Kentucky.

TENNESSEE.

Every gift, grant, conveyance of lands, tenements, heredita-
ments, goods or chattels, or of any rent, common or profit out
of the same, by writing or otherwise, and every bond, suit,
598 APPENDIX.

judgment or execution, had or made and contrived of malice,
fraud, covin, collusion or guile, to the intent or purpose to
delay, hinder or defraud creditors of their just and lawful
actions, suits, debts, accounts, damages, penalties, forfeitures,
or to defraud or deceive those who shall purchase the same
lands, tenements or hereditaments, or any rent, profit or com-
modity out of them, shall be deemed and taken only as against
the person, his heirs, successors, executors, administrators and
assigns, whose debts, suits, demands, estates or interests by
such guileful and covinous practices, as aforesaid, shall or might
be in any wise disturbed, hindered, delayed or defrauded, to
be clearly and utterly void; any pretence, color, feigned con-
sideration expressing of use or any other matter or thing to
the contrary notwithstanding.—Statutes of Tennessee, 1 Thomp-
son & Steger, § 1759.

INDIANA.

§ VIII. Every sale made by a vendor of goods in his posses-
sion, or under his control, unless the same be accompanied by
immediate delivery, and be followed by an actual change of the
possession of the things sold, shall be presumed to be fraudu-
lent and void, as against the creditors of the vendor, or subse-
quent purchasers in good faith, unless it shall be made to ap-
pear, that the same was made in good faith, and without any
intent to defraud such creditors or purchasers.

§ IX. The term “creditors” as used in the last section, shall
be construed to include all persons who shall be creditors of
the vendor or assignor, at any time whilst such goods were in
his possession or under his control.

§ XVII. All conveyances or assignments in writing or other-
wise, of any estate in lands, or of goods, or things in action,
every charge upon lands, goods, or things in action, and all
bonds, contracts, evidences of debt, judgments, decrees, made
or suffered with the intent to hinder, delay, or defraud credit-
ors, or other persons of their lawful damages, forfeitures, debts,
or demands, shall be void as to the person sought to be de-
frauded.

§ XVIII. All deeds ot gift, conveyances, transfers, or assign-
ments, verbal or written, of goods or things in action, made in
STATUTES OF THE VARIOUS STATES. 599

trust for the use of the person making the same, shall be void
as against creditors existing or subsequent, of such person.

§ XIX. Every conveyance, charge, instrument, act or proceed-
ing, declared by the provisions of this act to be void, as against
creditors or purchasers, shall be void against the heirs, personal
representatives or assignees of such creditors or purchasers.

§ XX. The provisions of this act shall not be construed to
affect the title of a purchaser for a valuable consideration, un-
less it shall appear that such purchaser had previous notice of
the fraudulent intent of his immediate grantor, or assignor, or
of the fraud rendering void the title of such grantor, or as-
signor.

§ XXI. The question of fraudulent intent, in all cases arising
under the provisions of this act, shall be deemed a question of
fact, nor shall any conveyance or charge be adjudged fraudu-
lent, as against creditors or purdliazens, solely on the ground
that it was not founded on a valuable consideration.— Chap. 66,
Statutes of Indiana.

ILLINOIS.

Every gift, grant or conveyance of lands, tenements, here-
ditaments, goods or chattels, or of any rent, common or profit
of the same, by writing or otherwise, and every bond, suit,
judgment or execution had and made, or contrived of malice,
fraud, covin, collusion or guile, to the intent or purpose to
delay, hinder, or defraud creditors of their just and lawful
actions, suits, debts, accounts, damages, penalties or forfeitures,
or to defraud or deceive those who shall purchase the same
lands, tenements or hereditaments, or any rent, profit or com-
modity out of them, shall be from thenceforth deemed and
taken only as against the person or persons, his, her, or their
heirs, successors, executors, administrators, or assigns, and every
of them, whose debts, suits, demands, estates and interests, by
such guileful and covinous devices and practices as aforesaid
shall, or might be in anywise disturbed, hindered, delayed, or
defrauded, to be clearly and utterly void; any pretence, color
feigned consideration, expression of use, or any other matter
or thing to the contrary notwithstanding; and moreover, if a
conveyance be of goods and chattels, and be not on considera-
600 APPENDIX.

tion, deemed valuable in law, it shall be taken to be fraudulent
unless the same be by will duly proved and recorded, or by
deed in writing, acknowledged or proved, if the same deed in-
cludes land also, in such manner as conveyances of land are by
law directed to be acknowledged or proved by two witnesses,
before any court of record in the county wherein one of the
parties lives, within eight months after the execution thereof,
or unless possession shall really and bona fide remain with the
donee; and in like manner where any loan of goods and chat-
tels shall be pretended to have been made to any person, with
whom, or those claiming under him, possession shall have re-
mained for the space of five years, without demand made and
pursued by due process at law, on the part of the pretended
lender, or where any reservation or limitation shall be pre-
tended to have been made of an use or property by way of con-
dition, remainder, or otherwise, in goods or chattels, the pos-
session whereof shall have remained in another, as aforesaid,
the same shall be taken as to creditors and purchasers of the
person aforesaid so remaining in possession, to be fraudulent,
and that the absolute property is with the possession, unless
such loan, reservation or limitation of use or property were de-
clared, by will or deed in writing, proved and recorded as
aforesaid.— Gross Statutes, Illinois (1869), § 8, page 302; Pe
vised Statutes, chap. 44, § 2.

WISCONSIN.

§ 1. All deeds of gift, all conveyances, and all transfers or
assignments, verbal or written, of goods, chattels, or things in
action, made in trust for the use of the person making the
same, shall be void as against the creditors, existing or subse-
quent, of such person.

§ 5. Every sale made by a vendor, of goods and chattels in
his possession or under his control, and every assignment of
goods and chattels, unless the same be accompanied by an im-
mediate delivery, and be followed by an actual and continued
change of possession of the things sold or assigned, shall be
presumed to be fraudulent and void, as against the creditors of
the vendor, or the creditors of the person making such assign-

¢?
STATUTES OF THE VARIOUS STATES. 601

ment, or subsequent purchasers in good faith; and shall be
conclusive evidence of fraud, unless it shall be made to appear,
on the part of the persons claiming under such sale or assign-
ment, that the same was made in good faith, and without any
intent to defraud such creditors or purchasers.—Chap. CVI,
Revised Statutes of Wisconsin, 1858.

§ 1. Every conveyance or assignment, in writing or other-
wise, of any estate or interest in lands, or in goods or things in
action, or of any rents or profits issuing therefrom, and every
charge upon lands, goods, or things in action, or upon the rents
or profits thereof, made with the intent to hinder, delay, or
defraud creditors or other persons of their lawful actions, dam-
ages, forfeitures, debts, or demands, and every bond, or other
evidence of debt given, actions commenced, order or judgment
suffered, with the like intent, as against the persons so hin-
dered, delayed, or defrauded, shall be void.

§ 4. The question of fraudulent intent, in all cases arising
under the provisions of this title, shall be deemed a question
of fact, and not of law, nor shall any conveyance or charge be
adjudged fraudulent as against creditors or purchasers, solely
on the ground that it was not founded on a valuable consid-
eration.

§ 5, The provisions of this title shall not be construed in
any manner to affect or impair the title of a purchaser for a
valuable consideration, unless it shall appear that such pur-
chaser had previous notice of the fraudulent intent of his im-
mediate grantor, or of the fraud rendering void the the title of
such grantor.—Ohap. C VIII, Revised Statutes of Wisconsin,
1858.

MICHIGAN.

81. All deeds of gift, all conveyances, and all transfers or
assignments, verbal or written, of goods, chattels or things in
in action, made in trust for the use of the person making the
same, shall be void as against the creditors, existing or subse-
quent, of such person.

8 7. Every sale made by a vendor, of goods and chattels in
his possession or under his control, and every assignment of
goods and chattels by way of mortgage or security, or upon any
602 APPENDIX.

condition whatever, unless the same be accompanied by an
immediate delivery, and be followed by an actual and contin-
ued change of possession of the things sold, mortgaged or
assigned, shall be presumed to be fraudulent and void, as
against the creditors of the vendor, or the creditors of the
person making such assignment, or subsequent purchasers in
good faith, and shall be conclusive evidence of fraud, unless it
shall be made to appear, on the part of the persons claiming
under such sale or assignment, that the same was made in good
faith, and without any intent to defraud such creditors or pur-
chasers.— Chap. 81, Levised Statutes of Michigan.

§ 1. Every conveyance or assignment, in writing or other-
wise, of any estate or interest in lands, or in goods or things in
action, or of any rents or profits issuing therefrom, and any
charge upon lands, goods or things in action, or upon the rents
and profits thereof, made with the intent to hinder, delay or
defraud creditors or other persons of their lawful suits, damages,
forfeitures, debts or demands, and every bond or other evidence
of debt given, suit commenced, decree or judgment suffered,
with like intent as against the persons so hindered, delayed or
defrauded, shall be void.

§ 3. Every conveyance, charge, instrument or proceeding,
declared by law to be void as against creditors or purchasers,
shall be equally void as against the heirs, successors, personal
representatives or assigns of such creditors and purchasers.

§ 4. The question of fraudulent intent, in all cases arising
under this, or either of the last two preceding chapters, shall
be deemed a question of fact, and not of law.

§ 5. None of the provisions of this, or the last two preced-
ing chapters, shall be construed in any manner to affect or
impair the title of a purchaser for a valuable consideration,
unless it shall appear that he had previous notice of the fraud-
ulent intent of his immediate grantor, or of the fraud rendering
void the title of such grantor.— Chap. 82, Revised Statutes of
Michigan.

MINNESOTA.

§ 14. All deeds of gifts, all conveyances, and all transfers or
assignments, verbal or written, of goods, chattels, or things in
STATUTES OF THE VARIOUS STATES. 603

action, made in trust for the use of the person making the
same, shall be void as against the creditors existing or subse-
quent of such person.

§ 15. Every sale made by a vendor of goods and chattels in
his possession or made under his control, and every assignment
of goods and chattels, unless the same is accompanied by an
immediate delivery, and followed by an actual and continued
change of possession of the things sold or assigned, shall be
presumed to be fraudulent and void as against the creditors of
the vendor or assignor, or subsequent purchasers in good faith
unless those claiming under such sale or assignment make it
appear that the same was made in good faith and without any
intent to hinder, delay, or defraud such creditors or pur-
chasers.

$16. The term “creditors” as used in the preceding sec-
tion, includes all persons who are creditors of the vendor or
assignee, at any time while such goods and chattels remain in
his possession or under his control.

§ 17. Nothing contained in the two preceding sections shail
apply to contracts of bottomry or respondentia, nor assign-
ments or hypothecations of vessels or goods at sea, or in foreign
ports, or without this State: provided the assignee or
mortgagee takes possession of such vessel or goods as soon as
possible, after the arrival thereof within this State.

§ 18. Every conveyance or assignment in writing or other-
wise of any estate or interest in lands, or of any rents or profits
issuing therefrom, and every charge upon lands or upon the
rents or profits thereof, made with the intent to hinder, delay,
or defraud creditors or other persons of their lawful actions,
damages, forfeitures, debts, or demands, and every bond or
other evidence of debt given, actions commenced, order or
judgment suffered, with the like intent as against the per-
sons so hindered, delayed or defrauded, shall be void.

§ 19. Every conveyance, charge, instrument, or proceeding
declared to be void by the provisions of this and the two pre-
ceding titles, as against creditors or purchasers, shall be equally
void against the heirs, successors, personal representatives, or
assignees of such creditors or purchasers.

§ 20. The question of fraudulent intent in all cases, arising
604 APPENDIX.

under the provisions of this title shall be deemed a question of
fact and not of law, and no conveyance or charge shall be ad-
judged fraudulent as against creditors solely on the ground that
it was not founded on a valuable consideration.

§ 21. The provisions of this title shall not be construed in
any manner to affect or impair the title of a purchaser for a
valuable consideration unless it appears that such purchaser
had previous notice of the fraudulent intent of his immediate
grantor, or the fraud rendering void the title of such grantor.

§ 22. The term “ conveyance,” as used in this chapter, shall
be construed to embrace every instrument in writing, except a
last will and testament, whatever may be its form, and by
whatever name it may be known in law, by which any estate
or interest in lands is created, aliened, assigned, or surrend-
ered.—Chap. XII, Tit. 3, page 335, Minnesota Revised
Statutes, 1866.

OREGON.

§ 49. Every conveyance or assignment in writing or other-
wise, of any estate or interest in lands or in goods, or things
in action, or of any rents or profits issuing therefrom, and every
charge upon lands, goods, or things in action, or upon the rents
or profits thereof, made with the intent to hinder, delay, or de-
fraud creditors or other persons of their lawful suits, damages,
forteitures, debts, or demands, and every bond or other evi-
dence of debt given, suit commenced, decree or judgment
suffered with the like intent as against the persons so hindered,
delayed or defrauded shall be void.— Drady’s Statutes, Oregon
Code, 656.

ARKANSAS.

§ 3. Every deed of gift and conveyance of goods and chat-
tels in trust to the use of the person so making such deed of
gift or conveyance, is declared to be void as against creditors
existing and subsequent purchasers.

§ 4. Every conveyance or assignment, in writing or other-
wise of any estate or interest in lands, or in goods and chattels,
STATUTES OF THE VARIOUS STATES. 605

or things in action, or of any rents issuing therefrom, and every
charge upon lands, goods, or things in action, or upon the rents
and profits thereof, and every bond, suit, judgment, decree, or
execution made or contrived with the intent to hinder, delay,
or defraud creditors or other persons of their lawful actions,
damages, forfeitures, debts, or demands, as against creditors
and purchasers prior and subsequent, shall be void.

§$ 9. This act shall not extend to any estate or interest in
any lands or tenements, goods or chattels, or any rents or
profits out of the same, which shall be upon a valuable con-
sideration and bona fide and lawfully conveyed ; nor shall this
act be construed to avoid. any deed or sale to a subsequent bona
jide purchaser from the grantee for valuable consideration and
without any notice of .fraud.—Chap. 78, Digest of the Statutes
of Arkansas.

MISSOURI.

§ 1. Every deed of gift and conveyance of goods and chat-
tels in trust, to the use of the person so making such deed of
gift or conveyance, is declared to be void as against creditors
existing and subsequent, and purchasers.

§ 2. Every conveyance or assignment in writing or other-
wise, of any estate or interest in lands, or in goods and chat-
tels, or in things in action, or of any rents and profits issuing
therefrom, and every charge upon lands, goods, or things in
action, or upon the rents and profits thereof, and every bond,
suit, judgment, decree, or execution, made or contrived with
the intent to hinder, delay, or defraud creditors of their lawful
actions, damages, forfeitures, debts, or demands, (or to defraud
or deceive those who shall purchase the same lands, tenements,
hereditaments, or any rent, profit, or commodity issuing [out]
of them), shall be from henceforth deemed and taken as against
said creditors and purchasers prior and subsequent, to be clearly
and utterly void.

87. This Act shall not extend to any estate or interest in
any lands, tenements, or hereditaments, goods or chattels, or
any rents, profits, or commons out of the same, which shall be
upon valuable consideration and bona jide and lawfully con-
606 APPENDIX.

veyed; nor shall it be construed to avoid any deed as against
any subsequent bona fide purchaser from the grantee for valu-
able consideration, and without any notice of fraud.

§ 10. Every sale made by a vendor of goods and chattels in
his possession, or under his control, unless the same be accom-
panied by delivery in a reasonable time (regard being had to
the situation of the property), and be followed by an actual and
continued change of the possession of the things sold, shall be
held to be fraudulent and void as against the creditors of the
vendor or subsequent purchasers in good faith.—1 Waggner’s
Missouri Statutes, 279 et seq.

KANSAS.
Be it enacted by the Legislature of the State of Kansas;

§ 1. All gifts and conveyances of goods and chattels, made
in trust to the use of the person or persons making the same,
shall be void and of no effect.

§ 2. Every gift, grant, or conveyance of lands, tenements,
hereditaments, rents, goods, or chattels, and every bond, judg-
ment, or execution, made or obtained, with intent to hinder,
delay, or defraud creditors of their just and lawful debts or
damages, or to defraud, or to deceive the person or persons
who shall purchase such lands, tenements, hereditaments,
rents, goods, or chattels, shall be deemed utterly void and of
no effect.

§ 3. Every sale or conveyance of personal property unac-
companied by an actual and continued change of possession,
shall be deemed to be void as against purchasers without notice
and existing or subsequent creditors, until it is shown that
such sale was made in good faith and upon sufficient considera-
tion. This section shall not interfere with the provisions of
law relating to chattel mortgages. Chap. 43, General Statutes
of Kansas, 1868.
GENERAL INDEX.
INDEX,

ACCOUNT for proceeds, 567.
for money on insurance policy, 569.
for rents, 569.
for profits, 569, 570.
for rents and profits from improvements, 571.
for money on a voluntary bond, 571.
for money loaned, 571.
for interest, 571, 575.
no deduction for consideration, 571, 572.
no compensation for services, 573.
debt cannot be set off, 578.
deduction in case of constructive fraud, 574,
by partner, 575.
by feme covert, 575.
for improvements, 575.
apportionment, 576.
retention of surplus, 577.
ACTION AT LAW, none in assumpsit, 505.
none in case, 505.
to try fraud, 507.
concurrent with equity, 508.
creditor may select, 508.
issues in, 508.
ACQUIESCENCE, creditor not bound by, 457.
creditor bound by ratification, 457.
ADMINISTRATOR, conveyance binding on, 444.
cannot re-convey, 469.
ADVANCE, contract for future, is a good consideration, 256.
mortgages for, 257.
judgments for, 257.
ADVICE of attorney admissible, 553.
AGENT, notice to, of vendée, 234.
notice to, of purchaser, 478.
conveyance binding on debtor’s, 444.
39
610 INDEX.

AGREEMENT, no suit on, 445, 449.

not enforceable in equity, 446.

when relief granted, 447.

between grantees, 448,

grantee cannot enforce, 451.

to release dower not good consideration, 317.
ALIMONY, claim for, a good consideration, 313.

deed of separation, when valid, 313.

claim for, within the statute, 486.
ANCESTORS’ DEBTS protected by the statute, 487.
ANTECEDENT DEBTS, good consideration, 213, 363.
ANTE-NUPTIAL AGREEMENTS, settlement in pursuance of,

valid, 310.

settlement must conform to articles, 311.

parole, void, 311.

parole validated by marriage, 312.

parole validated by representations, 312.
ANTE-NUPTIAL SETTLEMENTS, when valid, 305.

both parties must be guilty of fraud, 305.

must relate to specific marriage, 306.

contemporaneous, 306.

what must contain, 307.

to whom extends, 307.

mere indebtedness does not vitiate, 308.

participation of wife, 309.

how far marriage is valuable consideration, 309.
ANSWER cannot be amended, 527.

supplemental, 527.

what may be stated in supplemental, 528.

of purchaser must deny notice, 528.

evidence for defendant, 528.

when responsive, 528.

denial not conclusive, 529.

overcome by two witnesses, 529,

want of particularity, 529.

should be direct and specific, 530.

taken to be true when cause heard on, 530.

should set up statute of limitations, 580.
APPOINTMENT, see Power or Appointment.
APPORTIONMENT, creditor need not make, 576.

when all parties before court, 576.
INDEX. 611

ASSENT presumed to an assignment, 338.
express avowal not necessary, 339.
express is retro-active, 339.
effect of renunciation by one, 339.
when not presumed, 340,
excluded by express requirements, 340.
no presumption where there are conditions, 341.
no presumption of, to fraudulent assignment, 341.
to deed by solvent debtor, 341.

ASSETS, property fraudulently conveyed is, 504.

ASSIGNEE, effect of abuse of trust by, 363.
responsibility of, 421.
of debt is a creditor, 488.
compensation of, 423.
of debt may unite with assignor, 522.
in bankruptcy has rights of creditors, 488.
ratification by accepting money, 458.
has sole right to sue, 519.
may join with creditors, 520.
upon refusal of, creditors may sue, 520.
may sell subject to transfer, 465.
may sell right to a sale transfer, 465.

ASSIGNEE FOR BENEFIT OF CREDITORS, debtor may

select, 376.
may be a creditor, 376.
may be a joint-debtor, 376.
may be a relative, 376.
when not a partner, 376.
president of a corporation, 376,
vacancies may be filled, 376.
debtor cannot remove, 377.
cannot file bill, 520.
must be designated, 350. ;
assignment must be delivered to, 350.
must accept, 350.
presumption of acceptance, 350.
need not sign, 351.
acceptance implied from acts, 351.
cannot accept in part, 351.
effect of rejection by one, 351.
must be a proper person, 377.
612 INDEX.

ASSIGNEE FOR BENEFIT OF CREDITORS—continued.
non-residént, 378.
blind, 378.
ignorant, 378.
insolvent, 378.
may employ debtor, 380.
cannot declare uses subsequently, 384.
purchaser for value, 363.
notice to, of fraud, 364.
participation in fraud vitiates assignment, 364.
cannot permit concealment of assets, 403.
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS,
modern device, 333.
differ from composition, 333,
differ from deed of trust in nature of mortgage, 334,
differ from deed of trust by solvent debtor, 335.
why called voluntary, 336.
distinction between general and partial, 336.
essential elements of, 336.
creditors need not be parties, 336.
nominal consideration sufficient, 338.
debts are the real consideration, 338.
assent of creditors presumed, 338.
assent is retro-active, 339.
limitation of implied assent, 340.
express requirement excludes implied assent, 340.
no presumption of assent where there are conditions, 341.
no presumption of assent to fraudulent assignment, 341.
creditors may reject, 342.
the refusal of one creditor does not vitiate, 342.
when assent of all required, 342.
when levy equivalent to revocation, 348.
irrevocable, 348.
when revocable, 344,
fraudulent, may be altered, 344.
debtor alone cannot change, 344.
mode of alteration, 345.
one void deed not helped by another, 3-45.
deed of revocation under power, 345,
fraudulent, must be abandoned, 346,
form of, 346,
INDEX. 613

ASSIGNMENTS FOR BENEFIT OF CREDITORS—continued.
when seal not required, 346.
may consist of three parts, 347.
schedules, 347.
list of creditors, 348.
additions to list, 349.
omission of schedules a badge of fraud, 349.
must designate assignee, 350.
must be delivered, 350.
what delivery sufficient, 350.
must be accepted by assignee, 350.
presumption of acceptance, 350.
assignee need not sign, 351.
acceptance implied from acts, 351.
acceptance by one assignee sufficient, 351.
cannot be accepted in part, 351.
assignee’s title, 351.
legal effect of, 352. >
incident of ownership, 352,
who may make, 353.
by corporation, 353.
by executor, 353.
by partner, 353,
by partner with authority, 354.
by partner in emergencies, 355.
by partner during absence of partner, 354.
by partner with assent, 354.
dormant partner need not execute, 355.
by surviving partner, 355.
by minor, 355.
incidental delay does not vitiate, 355.
there must be fraudulent intent, 356.
intent to defeat execution, 358.
not affected by insolvency, 359.
no inquiry into secret motives, 360.
not vitiated by stratagem, 360.
fraud in the creation of debt, 360.
must be bona fide, 361.
prevention of sacrifice, 362.
fraud must be in the beginning, 362.
founded on valuable consideration, 338, 363.
614 INDEX.

ASSIGNMENTS FOR BENEFIT OF CREDITORS—continued.
participation by assignee, 363.
notice of fraud to assignee, 364.
construction of, 364.
no evidence to vary legal effect, 365.
several instruments construed together, 365.
several instruments, execution of, on same day, 366.
one fraudulent clause renders void, 366.
effect of clause inserted by mistake, 367.
construed strictly, 367.
burden of proof, 368.
effect of ambiguous terms, 368.
no presumption of illegal act, 369.
rule of construction, 370.
controlled by lex loci, 370.
debtor may be embarrassed, 371.
may be voluntary, 371.
may convey all, 371.
need not convey all, 371.
need not convey:separate estates, 371.
solvent debtor may make, 371.
solvent debtor cannot protect surplus, 373.
solvent debtor, prevention of sacrifice, 373.
solvent debtor, proof of solvency, 874.
solvent debtor, nominal difference between assets and liabil-

ities, 374.

solvent debtor’s belief of solvency, 375.
debtor may select assignee, 376.
who may be assignee, 376.
no power to remove assignee, 377.
assignee’s qualifications, 377.
disqualifications a badge of fraud, 379.
change of possession, 380.
employment of debtor, 380.
debtor’s advice, 381.
no power of revocation, 381.
power to make loans, 882.
uses must be declared, 382.
subsequent schedules, 383.
assignee cannot declare uses, 384.
fictitious debts, 385.
INDEX. 615

ASSIGNMENTS FOR BENEFIT OF CREDITORS—continued.
creditor may impeach debt, 385.
debt barred by statute of frauds, 386.
debt barred by release, 386.
claim of debtor’s wife, 386.
provision for sureties, 387.
provision for secured debts, 388.
what debts may be provided for, 889.
debt due to firm of which the assignor is partner, 889.
debt due to partner, 390.
by firm for private debt, 390.
for separate debt when assignment includes separate prop-

erty, 391.

debt in name of one partner, 391.
for joint debts, 391.
after dissolution of partnership, 391.
separate property to firm debts, 392.
disposition of surplus by partnership, 392.
equal distribution favored, 393.
preferences may be.given, 394.
preference to defeat others, 397.
secret motives for preference, 398,
postponement of interest, 399.
no reservation for benefit of debtor, 399.
no provision for debtor’s family, 400.
no continuance of business, 401.
right of possession, 402.
effect of concealing assets, 403.
exception from operation, 404.
residuary interests, 404.
reservation of surplus, 405.
reservation of surplus, when fraudulent, 406.
reservation of surplus by firm, 406.
reservation of surplus after payment of all, 408.
delay in closing trust, 408,
time must be reasonable, 409.
discretion of assignee in regard to sales, 410.
when delay of sale fraudulent, 412.
sale without delay, 413.
assignee may be vested with discretion, 414.
assignee may fix a place for sale, 414.
assignee may fix a price, 414.
616 INDEX.

ASSIGNMENTS FOR BENEFIT OF CREDITORS—continued.

sell at public or private sale, 415.

prohibition of sales on credit, 416.

sales on credit, 417.

delay of distribution, 418.

power to compromise bad debts, 418.

sale of bad debts, 419.

assignee’s power over property, 419.

assignee’s power to mortgage, 420.

assignee must be held to ordinary diligence, 421.

diligence in getting property, 422.

diligence in selecting agents, 422.

provisions for expenses, 422.

compensation of assignee, 423.

assignee cannot act as attorney, 423.

expenses of debtor, 424.

requirements for dividend, 425.

composition with the creditors, 426.

postponement of creditors who sue, 426.
ASSIGNMENTS EXACTING RELEASES, are fraudulent, 427.

release while property remains open, 434.

must convey all, 434.

no reservation of share of dissenting creditor, 435.

reservation of surplus, 436.

evidence that all is conveyed, 436.

what words are sufficient, 437.

partners must unite, 437.

dower need not be released, 437.

absconding with funds, 438.

time for acceptance, 438.

ambiguity, 439.

preferences, 439.

form of release, 440.

release by partner, 440.

how far binding on creditors who assent, 440.
ATTACHMENT, transfer to defeat is fraudulent, 487.

sufficient to justify seizure, 455.

void attachment no justification, 455.

valid seizure under, 551.

possession under, 501.

delay, 501.
INDEX. 617

ATTACHMENT—continued.

quashing by subsequent attaching creditor, 501.

sheriff after, may file bill, 520.

sheriff and creditor may join, 521.

proof of, as against grantee, 456.

creditor’s debt must be established, 456.

when defeated by plea of set-off, 456.
ATTORNEYS, provision for fees of, 424.

assignee may employ, 424.

may be paid out of fund, 537.

assignment may name, 425.

taking fraudulent conveyance, 447.
BADGES OF FRAUD, definition of, 76.

explanation of, 77.

not of equal weight, 78.

vary with each case, 78.

effect of, 78.

one sufficient, 78.

concurrence of several, 78.

transfer of all, 79.

generalities, 80.

embarrassment, 80.

indebtedness, 80.

pendency of suit, 81.

secrecy, 81.

concealment, 82.

omission to record deed, 82.

secret trust, 83.

false recitals, 83.

absolute deed as mortgage, 84.

right to repurchase, 85.

false statement of consideration, 85.

discrepancy between amount due and amount secured, 85.

judgment for more than is due, 86.

ante-dating instruments, 86.

inadequacy, 86.

+ fictitious consideration, 87.

excessive mortgage, 88.

duration of mortgage, 88.

unusual credit on sale, 89.

notes drawn for a long time, 89.
618 INDEX.

BADGES OF FRAUD—continued.
perishable articles, 90.
possession of land, 90.
acts of ownership, 91.
departure from usual course of business, 92.
unusual clauses, 92.
unusual mode of payment, 94.
calling witnesses, 94.
proof of payment, 95.
mere production of notes, 95.
absence of evidence, 95.
want of precision in evidence, 96.
relationship, 96.
confidential friend, 98.
delay, 99.
possession, 101.
BANKRUPTCY, ratification by accepting fund, 458.
assignee may sell subject to transfer, 465.
assignee may sell right to assail transfer, 465.
assignee is a creditor, 488.
assignee may file bill, 519.
assignee may join creditors, 520.
creditors may make assignee party defendant, 520.
creditors may enforce liens, 520.
creditors cannot levy after, 519.
BENEFIT, no reservation of, in assignment, 399.
giving creditors only rents and profits, 400.
continuance of business, 401.
demanding indulgence, 401.
expense of release, 401.
future advances, 402.
exemption from suit, 402.
reservation for member of firm, 402.
right to possession, 402.
concealment of property, 403.
transfer of chattels to use of grantor, 238.
what benefits may he reserved, 242.
secret trust, 243.
collusion, 244,
fictitious consideration, 244,
bounty of creditor, 225.
INDEX. 619

BENEFIT—continued.
gift cannot be enforced, 225.
bounty of purchaser, 244.

BILL IN EQUITY, when may be brought, 508.
purchase in name of another, 509.
choses in action, 510.
complainant must have lien, 511.
what lien is sufficient, 513.
return of execution unsatisfied, 514.
second execution, 515.
kind of judgments, 515.
equitable demand, 516.
after death of grantor, 516.
executors de son tort, 517.
non-residents, 518.
objection for want of lien, 518.
fraudulent judgments, 519.
other property, 519.
in case of bankruptcy, 519.
by receivers, 520.
by sheriff, 520.
by assignee, 520.
by purchaser, 520.
joinder of parties complainant, 521.
joinder of parties defendant, 522.
averments in, 523.
should state facts, 524.
charge of fraud, 525.
endorser cannot prosecute pending, 525.
objection to, how taken, 526.

BONA FIDES OF THE TRANSFER does not validate voluntary

conveyance, 279.
ground for protecting innocent vendee, 227.
no protection without valuable consideration, 229.
there must be good faith, 230.
fraud when full price is paid, 231.
exchange of lands, 231.
notice to grantee, 231.
knowledge of insolvency, 282.
knowledge of judgment, 232.
knowledge of attachment, 232.
620 INDEX.

BONA FIDES OF THE TRANSFER—continued.
actual knowledge not requisite, 232.
what puts party on inquiry, 232.
debtor’s wife, 232.
not knowledge of full intent, 233.
motives need not be the same, 233.
subsequent co-operation, 234,
notice to agent, 234.
sale to pay debts, 234.
mere intent to defeat execution, 235.
disposition of proceeds, 236.
retention of part, 237.
provision for créeditors, 237.
inadequacy, 237.
sale on credit, 238.
use of grantee, 238.
resulting trust, 240,
reservation of benefits, 242.
secret trust, 243.
collusion, 244.
note as fictitious consideration, 244.
purchaser’s bounty, 244.
power to rescind contract, 244,
right to re-purchase, 245, 246.
right of possession, 245.
support of debtor, 246.
support of debtor when full consideration given, 247.
support of debtor when solvent, 247.

BONA FIDE PURCHASERS, protected by the statute, 474.
when purchaser is, 477.
pre-existing debt, 477.
relinguishment of security, 477.
notice before payment, 477.
notice before conveyance, 477.
giving security, 477.
mortgagee, 477.
put on inquiry, 478.
from whom notice may be derived, 478.
fraud on face of instrument, 479.
subsequent judgment, 479.
subsequent purchase under execution, 479.
INDEX. 621

BONA FIDE PURCHASERS—continued.
purchase after issue of execution, 480.
purchase pendente lite, 480.
purchase after sale under execution, 480.
marriage, 481.
purchase under fraudulent judgment, 481.
purchase from bona fide purchaser, 481.
creditor, 481.
creditor cannot take mortgage notes, 483.

BURDEN OF PROOF, see Onvs Prosanot.

CHATTELS, transfer to use of grantor, 238.
resulting trust, 240.
what benefits may be reserved, 242.
within the statute, 258, 263.

CHOSES IN ACTION, within the statute, 263.
equity sets aside transfers of, 264, 510, 514.
settlement of, on wife, 315.

a valuable consideration, 315.

COMPROMISE, assignee may, 418.
power favorable to creditors, 419.

CONSIDERATION, antecedent debt, 213.
right of possession, 245.
illegal, 249.
support of debtor, 246.
parole agreement to give, 249.
what the law would compel, 249.
waiver of statutory defences, 249.
waiver of statute of limitations, 250.
waiver of discharge in bankruptcy, 250.
waiver of statute of frauds, 250.
waiver of parole ante-nuptial agreement, 250, 311.
waiver of voluntary release, 250.
promise to pay, 251.
check, 251.
annuity, 251.
existing debt, 251.
liability, 251.
unliquidated debt, 252.
note taken at time of advance, 252.
counter security by surety, 252.
debt of another, 252.
622 INDEX.

CONSIDERATION —continued.
voluntary bond, 252.
interest, 252.
note of minor, 253.
prior judgment, 253.
promise to pay debts, 253.
release of equity of redemption, 254.
deception in marriage, 254.
indemnity for illicit intercourse, 254.
illicit cohabitation, 254.
damages for seduction, 254.
separate debts of partners, 255.
transfer to co-partner, 255.
firm debt for transfer by partner, 256.
loan to stockholder, 256.
future advances, 256.
services between members of the same family, 257.
board of child, 257.
earnings of minor, 257,
earnings of wife, 258.
contract for emancipation, 258.
claim for alimony, 313.
deed of separation, 313.
wife’s property, 314.
recital prima facie proof of, 554.
declarations evidence of, 555.
when proof of necessary, 555.
when none expressed, 555.
proof of additional, 556.
from other parties, 556.
contemporaneous instruments, 557.
notes and judgments, 557.
cannot be varied, 557.
wife’s choses in action, 315.
wife’s separate estate, 316.
right of dower, 317.
CONSTRUCTION, statute liberally construed, 59.
not to injure third persons, 59.
of deed a question of court, 364.
" several instruments construed together, 365.
assignments construed strictly, 367.
INDEX. 623

CONSTRUCTION—continued.

when deed is ambiguous, 368.

no inference of unlawful intent, 369.

law of State where made, 370.
CONTRACTS, FRAUDULENT, cannot be enforced, 445.

equity not enforce, 446.

trusts in fraudulent deed, 446.

when parties are not in pari delicto, 447.

when claim against grantor is unfounded, 447.

upon recision of fraudulent conveyance, 448.

bill to redeem, 448.

between grantees, 448.

actions at law, 449.

no action on note, 449.

bona fide holder, 449.

promise to innocent third party, 449.

grantee cannot enforce, 451.

grantee cannot sue on note, 451,

grantee cannot sue on covenant, 451.
CONVEYANCE, all kinds within the statute, 273.

forfeiture by tenant, 247.

outlawry, 274.

cancellation of debt, 274.

note in name of another, 274.

remission of rent, 275.

judgment, 276.

sale under execution, 276.

purchase with debtor’s money, 277.

good between parties, 442.

binds the grantor’s heirs, 443.

binds the grantor’s executors, 444.

binds the grantor’s administrators, 444.

binds the grantor’s agents, 444.

binds the grantor’s vendees, 444.

estoppel by covenant, 445.

rights of grantees, 448.

valid against third parties, 451.

valid against debtor’s tenant, 452.

valid against prior mortgagee, 452.

valid against wrong doers, 452.

valid against grantee’s tenant, 452.
624 INDEX.

CONVEY ANCE—continued.
valid against grantee’s bailee, 452.
valid against stockholders, 452.
valid against party liable for demand, 452.
valid against creditors without legal process, 453.
valid against void attachment, 455.
valid against void levy, 455.
valid against levy after return day, 455.
valid against levy out of bailiwick, 455.
valid against void judgment, 455.
valid against illegal distress, 455.
valid against fraudulent judgment, 455.
valid against satisfied judgment, 455.
valid against debtor’s grantee, 456.
CORPORATION, may be guilty of intent to defraud, 75.
may make assignment, 353.
may give preferences, 397,
COSTS, in discretion of court, 536.
to successful party, 536.
in case of constructive fraud, 536.
peculiar hardship to creditor, 536.
improper conduct on part of defendant, 537.
purchaser, 537.
necessary party, 537.
assignee, 537.
counsel fees, 537.
COVENANT, estoppel by, in fraudulent deed, 445.
in marriage articles, 310.
in deed of separation, 313.
CREDITORS, WHO ARE, must have lawful claim, 484.
pretended claim, 484.
illegal claim, 484.
liberal construction of term, 485.
demand need not be due, 485.
contingent claim, 485.
liability as surety, 485,
damages, 485.
voluntary bonds, 486.
slander, 486.
tort, 486.
INDEX. 625

CREDITORS, WHO ARE—continued.
promise to marry, 486.
support of bastard, 486.
false representation, 486.
forfeitures, 486, 487.
usurious interest, 486.
marriage settlement, 486.
alimony, 486.
demand against stockholder, 486.
debts of ancestor, 487.
liability as partner, 487.
accommodation endorser, 487.
assignee of claim, 487, *
sheriff, 488.
purchaser, 488,
assignee in bankruptcy, 488.
receiver, 488.
judgment for costs, 489.
judgment for prior and subsequent debt, 489.
change of evidence of debt, 490.
at what time right accrues, 488.
CREDITORS, RIGHTS OF, have no title in the debtor’s property, 62.
have equal rights, 213.
may secure a preference, 217.
may seek payment though others lose debts, 218.
may purchase from grantee, 481.
cannot take fraudulent notes, 483.
knowledge of intent to defeat execution, 220.
must act in good faith, 222.
secret trust, 224.
gifts to debtor’s family, 225.
may purchase, 226.
presumption of assent to assignment, 339.
when presumption of assent is excluded, 340.
may reject assignment, 342.
effect of rejection, 342.
must have legal process, 453.
cannot set off his own debt, 454.
proof of right to seize, 456.
claim under deed, 456.
ratification, 457.

40
626 INDEX.

CREDITORS, RIGHTS OF —continued.
notice to, 457.
acquiescence, 457.
assent of others, 457.
agreement for consideration, 458.
when trustee, 458.
advice, 458.
receiving proceeds, 458, 459.
estoppel, 459.
must return benefit, 461.
priority of liens, 461.
cannot levy on profits, 465.
cannot levy on proceeds, 465.
may treat partition by grantee as valid, 466.
after transfer, 487.
cannot enjoin transfer, 505.
no assumpsit or case against grantee, 505.
change of remedy, 507.
action at law, 507.
bill in equity, 508.
proof of claim, 538.

DEBTS, statement of in assignment, 348.
described by name of creditor, 348.
amount omitted, 348.
amount written on schedule by creditors, 349.
future enumeration, 349.

DECLARATIONS, when part of the res geste, 543.
contemporaneous, 544,
remote, 545.
of conspirators, 547.
conspiracy must be established, 547.
subsequent, 548.
while in possession, 549.
in favor of grantee, 550.

DISTRIBUTION, when only one complainant, 534,
when several complainants, 584.
among creditors at large, 534,
equitable lien, 534.
when several bills have been filed, 535.
equitable liens subject to other liens, 535.
costs, 536,
INDEX. 627

DONEE. See Votunrary Surriemenr.
DONOR. See Votunrary SErrrement.
DOWER, good consideration, 317.
release without promise, 317.
mere promise to release, 317.
in property conveyed, 467,
after mortgage, 467.
purchase in name of another, 467.
not affected by fraud, 575.
EARNINGS of child, not good consideration, 258, 272.
of wife, not good consideration, 258, 272.
debtor may claim his own, 269.
debtor may protect his earnings, 270.
debtor cannot assign future, 270.
debtor cannot accumulate, 270.
of child after emancipation, 272.
of child subject to support, 272.
EMANCIPATION, contract for, a good consideration, 258.
child’s claim to earnings after, 273.
marriage is, 273.
EQUITY may set aside conveyances partially voluntary, 303.
relieve against fraud, 508.
when there is a remedy at law, 508.
purchase in the name of another, 509.
transfer of choses in action, 510.
when creditor must have lien, 51].
when execution must be issued, 513.
attachment, 513.
garnishment, 515.
warrant of distress, 513.
return of execution unsatisfied, 514.
return before return day, 514.
second execution, 515.
kind of judgments, 515.
judgment against joint debtors, 516
equitable demand, 516.
after death of debtor, 516.
executor de son tort, 517.
non-residents, 518.
relief against fraudulent judgment, 519.
exercises discretion, 519.
628 INDEX.

EQUITY—continued.
decree limited to bill, 533.
sell the property, 533.
distribution of proceeds, 534.
creditors at large, 534.
among liens, 535.
costs, 536.
proof in equity, 564.
equity follows proceeds, 567:
account for rents and profits, 569.
no indemnity in case of actual fraud, 572.
no set-off 573.
indemnity in case of constructive fraud, 574.
improvements, 575.
apportionment, 576.

ESTOPPEL, by agreement, 457.
receipt of dividend, 458.
receipt of purchase money by assignee, 458.
grantor, 458.
advice, 458.
taking fraudulent note, 459.
not by provision in assignment, 460.
not by attachment, 460.
appropriation under execution, 460.
must be recognition of validity, 460.
when others sell, 460.
return of benefit, 461.
privies, 461.
by covenant, 445.

EVIDENCE, inadmissible to support fraudulent deed, 464.
to show date of debt, 490.
proof of debt, 538.
grantor’s declarations as to debt, 538.
grantor’s notes, 538.
grantor’s accounts, 538.
judgment against grantor, 538.
judgment against administrator, 539.
judgment by confession, 539.
of debt only prima facie, 539,
that debt does not exist, 540.
limited to pleadings, 540.
INDEX. 629

EVIDENCE—continued.
wide range allowed, 541.
precise limits cannot be drawn, 542.
secret trust, 542.
res geste, 548.
contemporaneous acts of grantor, 544,
contemporaneous declarations of grantor, 544.
only proximate declarations, 545.
declarations of conspirators, 546.
proof of confederacy, 547.
subsequent declarations inadmissible, 548,
declarations with assent of grantee, 549.
declarations to contradict witness, 549.
declarations in possession, 549.
character of possession, 550.
in favor of grantee, 550.
possession must be shown, 550.
declaration must explain possession, 550.
relation of the parties, 550.
contemporaneous transfers between parties, 551.
subsequent transfers between parties, 551,
conduct in relation to property, 551.
contemporaneous acts, 552.
no evidence of character, 552.
indebtedness, 552.
intoxication, 552.
grantee’s liability to purchase, 552.
false recitals, 552.
concealment, 552.
purchases, 552.
declarations of co-tenant, 553.
attorney’s advice, 553.
intent of another, 553.
intent of witness, 553.
debtor’s testimony, 553.
suppositions, 554.
abstract opinions, 554.
recitals in deeds, 554.
debtor’s declarations in regard to consideration, 555.
to change character of deed, 555.
when no consideration is expressed, 555.
630 INDEX.

EVIDENCE— continued.
additional valuable consideration, 556.
consideration from third parties, 556.
contemporaneous deeds, 557.
consideration of note, 557.
consideration of judgment, 557.
to vary consideration, 557.
on the part of grantee, 558.
burden of proof, 559.
circumstantial, 559.
mode of proof, 560.
inference of fraud, 560.
amount of proof, 562.
suspicions, 562.
conjectures, 562.
consistent with honesty, 562.
not inconsistent with other theory, 562.
must be satisfactory, 563.
strong presumption, 563.
not beyond reasonable doubt, 563.
rational belief, 564.
payment of price, 564.
same in equity as in law, 564.
inadequacy of consideration, 564.

EXECUTION, creditor must have, 453.
fraud in, 496.
direction to postpone levy, 496.
direction to postpone sale, 497.
effect of countermand, 497.
delay for specified time, 497.
delay a badge of fraud, 497.
possession after levy, 498.
consuming property, 498.
delay in sale, 498.
sale of cumbrous property, 499.
setting aside execution, 500.
summary, 500. ,
issue, 500.
fraud in sales under, 276.
inadequacy of price, 277.
purchase with debtor’s money, 277,
INDEX. 631

EXECUTION—continued.
redemption of land, 278.
intent to defeat, not fraudulent, 68, 220, 358, 397.
purchase after issue of, 480.
EXECUTOR, may make assignment, 353.
bound by transfer, 444,
when a proper party, 522.
EXECUTOR de son tort, who is, 502.
when there is a rightful executor, 502.
may be sued by executor, 502.
only of personal estate, 503.
after sale, 508.
upon removal to another State, 503.
form of action, 503.
cannot retain debt, 504.
EXEMPTED PROPERTY, transfer of, not fraudulent, 268.
sued in equity, 517.
colorable transfer void, 68.
partners cannot claim homestead in, 268.
conversion of assets into, 269.
paying mortgage on, 269.
none after transfer, 467.
grantee may retain, 577.
FEME COVERT. See Huspanp anp Wire. ”
FORFEITURES, within the statute, 487. :
for offences, 486.
FRAUD, at common law, 55.
construction against, 59.
what constitutes, 61.
elements of, 63.
what intent requisite, 64.
kind of fraud within the statute, 64.
not fraud on the public, 65.
fraud on one person, 65.
fraud on debtor, 65.
definition of, 66.
mere intention, 66.
delay, 66.
definition of hindrance, 67.
ascertainment of, 69.

fraud in fact, 69.
632 INDEX.

FRAUD—continued.
question for jury, 69.
fraud in law, 70.
no difference between fraud in fact and fraud in law, 71.
depends on legal intent, 71.
question of law, 72.
prevention of sacrifice, 73.
must be in the beginning, 74.
accident, 74.
mistake, 74.
by corporation, 75.
badges of, 76.
preferences, 217,
notice of, 231.
proof of, 541.
burden of proof, 559.
mode of proof, 560.
may be presumed, 560.
amount of proof, 562.
same at law as in equity, 564.
FUTURE ADVANCES, good consideration, 256.
mortgage for, 257.
mortgage may be taken for absolute sum, 257.
judgment for, 257.
GIFT. See Votuntary ConvEYANCE.
GRANTEE, when protected, 227.
without consideration, 229.
must act in good faith, 230.
affected by notice, 231,
knowledge of insolvency, 232.
knowledge of judgment, 232.
knowledge of attachment, 232.
must use ordinary diligence, 232.
notice before payment, 233.
need not have same motives as debtor, 233.
co-operation, 234,
acts of agent, 234,
intent to defeat execution, 235.
adequacy of consideration, 237.
use of debtor, 238.
resulting trust, 240.
INDEX. 633

GRANTEE—continued.
reservation of benefit, 242.
secret trust, 243,
collusion, 244.
may give to debtor, 244,
when held as trustee, 265.
how far title is valid, 443.
not bound by executory contract, 445.
may sell to creditor, 481.
not in pari delicto, 447.
rights when there are several, 448,
need not pay notes, 449,
no defence against bora fide holder, 449.
remedy at law, 450.
no remedy in equity, 450.
cannot enforce executory contracts, 451.
good title against third parties, 451.
good title against creditors at large, 453.
good title against void process, 455.
good title against deed by debtor, 456.
rights of creditors of, 462,
right to profits, 465.
right to proceeds, 465,
partition by, 466.
redemption of property, 466.
dissolution of attachment, 466.
purchase under execution, 467.
right to surplus, 466.
rescission, 467.
debt not extinguished, 470.
void in part void in toto, 470.
* when one is innocent, 472.
recovery, 473.
title merely voidable, 475.
sale to bona fide purchaser, 474.
necessary party, 522.
answer evidence for, 528.
evidence of debt only prima facie against, 539.
may impeach judgment, 540.
grantor’s declarations evidence against, 543, 544, 546, 548, 549.
may testify to his intention, 553.
634 INDEX.

GRANTEE—continued.
evidence of character of, 552.
evidence in favor of, 558.
decree against grantee, 566.
not liable after surrender, 566.
liable for proceeds, 567.
liable for loss, 568.
may retain insurance, 569.
must account for rents and profits, 569.
computation of profits, 570.
charged with interest, 571.
no right to indemnity, 571.
cannot retain moneys paid, 572.
cannot set off his debt, 573.
cannot use fraudulent judgment, 573.
indemnity in case of constructive fraud, 574.
when transfer is suspicious, 574.
lien as partner, 575.
Seme covert, 575.
allowance for improvements, 575.
expenditures offset to profits, 575.
apportionment, 576.
retain exempt property, 577.
HEIR, bound by conveyance, 443.
fraudulent alienation of assets, 487.
under fraudulent deed take as heir, 504.
when executor de son tort, 504.
HERIOTS, transfer to defeat, 484.
HOMESTEAD, colorable transfer of, 268.
division by partners to obtain, 268.
converting assets into, 269.
paying mortgage on, 269.
after transfer, 467.
grantee may retain, 577.
HUSBAND AND WIFE, claim for deceit in marriage, 254.
earnings, 258, 272.
renunciation of future earnings, 272.
possession of wife is possession of husband, 181.
possession of property of wife conveyed before marriage, 182.
possession by wife after separation, 182.
business in wife’s name, 271.
INDEX. 635

HUSBAND AND WIFE—continued.

may employ husband, 271.

employment must not be colorable, 271.

ante-nuptial settlement, 305.

wife must participate in fraud, 309.

how far marriage is valuable, 309.

transfer in pursuance of ante-nuptial agreement, 310.

parol ante-nuptial agreement, 311.

payment of portion, 313.

deed of separation, 313.

contract between, 314.

wife’s choses in action, 315.

wife’s right to settlement, 315.

separate estate, 316.

release of dower, 317.

giving property to husband without contract, 317.

increase under settlement, 318.

rectification of defective settlement, 318,

purchases by feme covert, 318.

dower extinguished, 467.

dower after mortgage, 467.

no dower in case of purchase in name of another, 467.

property held as security for dower, 575.

may recover her own estate, 447.
ILLEGAL CONSIDERATION, no consideration, 249.

illicit intercourse, 254.

claim founded on, does not constitute creditor, 484.
IMPROVEMENTS, no allowance for, 575.

set off against rents and profits, 575.

donee entitled to, 576.

assignee’s expenses, 576.

on land of another may be reached, 267.
INADEQUACY, badge of fraud, 86.

not fixed by rule of law, 87.

when must be gross, 87.

causes scrutiny, 87.

price must be reasonable, 157.

when partially voluntary, 303.

when suspicious, 574.
INDEBTEDNESS, badge of fraud, 80.

does not take away debtor’s dominion, 80.
636 INDEX.

INDEBTEDNESS—continued.

affects voluntary conveyances, 288.

of itself does not render transfer void, 289.

only one circumstance, 291.

must be compared with means, 291.

debtor need not be insolvent, 293.

wife’s notice of, 309.

grantee’s notice of, 232.

proof of, 538.
INDEMNITY, none in case of actual fraud, 571.

none for money paid to debtor, 572.

none fur money paid to creditors, 572.

in case of constructive fraud, 574.
INFANT, note of, good consideration, 253.

partner cannot make assignment, 355.
INJUNCTION, sale cannot be enjoined, 505.

none of creditor’s suit, 508.
INSOLVENCY, does not defeat debtor’s dominion, 62, 227.

does not take away right to prefer, 217.

defeats voluntary conveyances, 292.

does not defeat assignments, 371.
INTENT, FRAUDULENT, what is within the statute, 64.

to defraud the public, 65.

to defeat prior deeds, 65.

to defraud debtor, 65.

definition of, 66.

delay, 66.

definition of hindrance and delay, 67.

when inference of, a question of fact, 69.

fraud in Jaw, 70.

what is constructive fraud, 71.

no difference between fraud in fact and fraud in law, 71.

legal not moral intent, 71.

question of law, 72.

what intent sufficient, 73.

* prevention of sacrifice, 73, 362.

must be in the beginning, 74, 362.

not accident or mistake, 74.

by corporation, 75.

not merely to defeat execution, 68, 220, 358.

differs from intent to prefer, 217.
INDEX. 637

INTENT, FRAUDULENT—continued.

of douor alone, 279.

in voluntary conveyances, 280.

establishment of, in voluntary conveyances, 281,

when a conclusion of law, 282.

no inquiry into secret motives, 283.

against subsequent creditors, 321.

incidental delay in assignments, 355.

under assignments, 356.

secret motives, 360.

what is, in assignments, 361.

proof of, 560.

burden of proof, 559.

may be presumed, 560.

amount of proof, 562.

proof must be clear, 563.

same at law as in equity, 509, 564.
INTERNATIONAL LAW, construction by lea loc, 491.

evidence by lex fort, 491.

transfer of land by lex loc?, 491.

personal property by place where made, 492.

statutes may regulate transfers, 493.

binding on citizens of other States, 494.

valid where made and property located, 494.

notice to debtor, 494.

where no evidence of foreign law, 495.

law of State where made governs assignments, 370.
ISSUE, to try fraud in judgment, 499.

to try fraud in execution, 500.
JUDGMENT, lien on property transferred, 462.

against grantee no lien, 462.

creditor must prove, 456.

purchaser must prove, 463.

subsequent, will not affect bona fide purchaser, 479.

proof of, against grantee, 538.

against administrator, 539.

by confession, 539.

only prima facie against grantee, 539.

grantee may impeach, 540.

when fraudulent is void, 499.

impeach collaterally, 499.
638 INDEX.

JUDGMENT—continued.

may be set aside, 499.

issue to try fraud in, 499.

not vacated on record, 500.

when will support bill in equity, 513.

kind of judgment to support bill, 515.

priority over, equitable lien, 535.

after filing bill, is lien, 536.

no lien after title is divested, 536.

void in part is void in whole, 471.

bona fide purchaser under fraudulent, has good title,

481.

fraudulent, void, 276.
JURY, when fraud a question for, 69.

explanation of possession, 115.

points for, in case of possession, 155.

province of, in case of possession, 158.

issue for, under judgment, 499.

issue for, under execution, 500.
LACHES, creditor bound by, 457.

ground for refusal of relief in equity, 533.
LAND, acts of ownership badge. of fraud, 90.

renting, 91.

selling, 91.

improving, 91.

possession alone not a badge of fraud, 160, 212.

expenditures on, may be reached, 267,
LIENS, after transfer, 462.

before transfer not affected, 462.

subsequent, not notice to purchaser, 479.

under execution, 480.

necessary to sustain bill, 511.

what sufficient to sustain bill, 513.

not necessary to reach choses in action, 514,

not necessary on equitable claims, 516.

not necessary after death of debtor, 516,

equitable, by filing bill, 517.

service of process necessary to, 585.

equitable, subject to others, 535,

judgment after filing bill, 536,

none after appointment of receiver, 536.
INDEX. 639

LIMITATIONS, STATUTE OF, must be pleaded, 530,
to demand or title, 530.
no plea after defence, 530.
one creditor may plead to others, 531.
objection to subsequent claims, 531.
Tuns till filing of claims, 531.
judgment before, bar of, 531.
judgment after, bar of, 531.
as to claim to title, 532.
property not liable to execution, 532.
administrator, 532.
only from discovery, 532.
suspicion not discovery, 533.
information to put on inquiry, 533.
averment in bill to avoid, 525.
MARRIAGE, a valuable consideration, 305.
must be specific marriage, 306.
contemporaneous gift, 306.
extends to children, 307.
does not extend to collaterals, 307.
runs through the whole settlement, 308.
how far valuable, 309.
is emancipation, 273.
makes bona fide purchaser, 481.
MARRIAGE SETTLEMENTS, founded on valuable consideration, 305.
both parties must have notice of fraud, 305.
must relate to specific marriage, 306.
contemporaneous gift, 306.
statement in articles, 307.
extends to children, 307.
collaterals, 307.
mere knowledge of indebtedness, 308,
inference of notice from facts, 309.
extravagant, 309.
how far valuable, 309.
in pursuance of ante-nuptial agreement, 310.
must conform to articles, 311.
proof of articles, 311.
parole void, 250, 311.
marriage not part performance, 312.
misrepresentation, 312.
640 INDEX.

‘MARRIAGE SETTLEMENTS—continued.

written acknowledgement, 312.

in consideration of previous marriage, 312.

for portion, 313.

deed of separation, 313.

covenant of indemnity, 313.

contract between husband and wife, 314.

personal property, 314.

choses in action reduced, 814.

choses in action, 315.

of property where right of settlement, 315.

of property where right of settlement, must be reasonable, 316.

for separate estate, 316.

for right of dower, 317.

when no contract, 317.

covers increase, 318.

defective, may be rectified, 318.

purchase by wife, 318.
MESNE PROFITS. See Account, Prorirs.
MISTAKE, not fraud, 74.

no proof that fraudulent deed was made by, 74, 3867.
MORTGAGES, absolute deed for, 84.

absolute deed with secret trust, 85.

to cover property, 88.

excess of property, 88.

length of duration, 88.

retention of note, 93.

delay in enforcing, 99.

possession under, badge of fraud, 159.

selling for debtor’s benefit, 161.

parol power to sell, 164.

sale contrary to purpose of, 164.

power to sell as agent, 165.

of perishable articles, 165.

for sustenance of mortgage property, 166.

delivery before execution, 166.

possession under, 190.

stipulation for possession, 192.

after condition broken, 193.

possession after purchase of right of redemption, 193.

assignment of, for money paid by debtor, 275.
INDEX. 641

MORTGAGES—continued.

restored when transfer of equity of redemption void, 181,
470.

fraudulent, does not extinguish debt, 470.

no priority of mortgage notes, 483.

fraudulent sale under, 277.

to secure debt of another not voluntary, 252.

fraudulent, may be enforced at law, 450.

fraudulent, not enforced in equity, 450.

fraudulent, debtor may redeem from, 448.

fraudulent, notes not enforcible, 451.

when purchaser may contest, 464.

assignee may sell subject to, 465.

grantee cannot claim money paid for, 572.

MOTIVES, legal not moral intent, 71.

fraud does not imply corrupt, 72.

secret, in preference immaterial, 222, 898.
result in proper action not bad, 222,
inducement to assignment, 360.

threats in preferences, 398,

caprice, 399.

NOTICE makes sale void, 231.

41

of insolvency, 232.

of judgment, 232.

of threatened attachment, 232.
knowledge not necessary, 232.

to put on inquiry, 232.

to debtor’s wife, 232.

before payment, 233.

not of full extent of fraud, 233.
none necessary to donee, 229, 279.
of intent to defeat execution, 235.
to wife in nuptial settlements, 309.
to assignee, 363.

to creditor no estoppel, 457.
conduct of creditor after notice, 458.
to purchaser makes deed void, 477.
before payment by purchaser, 477.
to put purchaser on inquiry, 478.

. apparent on face of papers, 479.

to agent is to principal, 234, 478.
642 INDEX.

NOTICE—continued.
of subsequent judgment, 479.
pendente lite, 480.
in case of possession, 184.

NOTORIETY of change of possession, 195.
seizure not, 195.
sale at public auction, 196.
sale under execution, 196.
who may purchase at auction, 197.
possession after sale at auction, 197.
public sale by private agreement, 197.

NUPTIAL SETI(LEMENT. See Marriace Serr.EMENT.

ONUS PRO BANDIT in case of possession, 154.
on donee, 286.
donee must show abundant means, 294.
proof by donee must be clear, 295.
on creditor who assails assignment, 368.
of solvency of assignor, 374.
of fraud, 559.

PARENT, entitled to child’s earnings, 258, 272.
contract for emancipation, 258.
duty to support child, 272.
may emancipate child, 273.
marriage is emancipation, 273.

PAROL AGREEMENTS, for marriage void, 250, 311.
effect of marriage, 312. :
representation, 312.
written acknowledgment, 312.

PARTIES, who may sue, 484.
assignee in bankruptcy, 519.
creditors after bankruptcy, 519.
creditors may make assignee defendant, 520.
receiver, 520.
sheriff, 520.
purchaser, 520.
joinder of creditors, 521.
joinder of sheriff and creditor, 521.
joinder of creditor and administrator, 521,
joinder of assignor and assignee of judgment, 522.
joinder of several grantees, 522.
joinder of grantees claiming different portions, 528.
INDEX. 643

PARTIES—continued.
when one creditor entitled to further relief, 521.
on behalf of all who come in, 521.
receiver as party defendant, 522,
debtor, 522.
debtor’s administrator, 522.
debtov’s heirs, 522.
grantee, 522.
person through whom title has passed, 523.
having prior interests, 523.
grantor of purchase in the name of another, 523.
purchaser pendente lite, 523.
endorser, 525.
joint-debtors, 516.
PARTNERS, vendor may be member of firm, 177.
possession of partnership property, 181.
transfer to pay separate debt, 255.
division without transfer, 255.
firm debt contracted in name of partner, 255, 391.
transfer of firm property to one partner, 255.
transfer of separate property to pay firm debts, 256.
assignment of firm property to pay separate debt, 390,
assignment to pay debt of firm of which assignor is partner, 389.
assignment to pay separate debts when separate property as-
signed, 391.
assignment after dissolution, 391.
assignment of separate property to pay firm debts, 392.
distribution of surplus among separate creditors, 392.
reservation of surplus in firm assignment, 406.
partner remitted to his lien, 575.
PLEA for want of lien, 518.
for want of proper parties, 526.
in bar of discovery, 526.
to protect from criminal prosecution, 527.
of limitations, 530.
none after defence, 530.
to validity of other claims, 531.
title to property, 531.
PORTION, good consideration for settlement, 313.
paid after settlement, 313,
security of sufficient, 313.
644 INDEX.

POSSESSION of land with acts of ownership, 90.
a badge of fraud, 101.
depends on intent, 103.
right to leave with vendee, 108.
tends to deceive, 104.
‘not conclusive, 105.
caveat creditor, 106.
rule of evidence, 107.
public policy, 111.
rights of others, 113.
explanation for jury, 115.
court not to determine sufficiency of explanation, 116.
review of authorities, 118.
citation of authorities, 151.
what requisite, 152.
burden of proof, 154.
point of inquiry, 155.
evidence to explain, 156.
consideration, 156.
province of jury, 158.
to what transactions applies, 159.
of land, 160.
with jus disponendi, 161.
mortgage with power to sell, 162.
mortgage with parol power to sell, 164.
mortgage with power to sell as agent, 165.
mortgage of perishable articles, 165.
when perishable articles consumed for benefit of property, 165.
fraud per se, rule of policy, 168,
excludes all evidence, 168.
no privity of vendee, 169.
what change necessary, 169.
symbolical delivery not sufficient, 169.
change must be continuous, 170.
must follow transfer, 171.
a question of law, 171.
when submitted to jury, 172.
jury to decide conflict of testimony, 172.
evidence of transfer not excluded, 172.
concurrent possession, 173.
must be observable, 174.
INDEX. 645

POSSESSION—continued.
employment of vendor as agent, 175.
change of sign, 176.
when joint, collusive, 177.
when accompanied by transfer of land, 178.
surrender of lease, 178.
taking a lease, 179.
property on farm, 180.
steam engine, 180.
exempt property, 181.
equity of redemption, 181.
after sale by vendee, 181.
by feme covert, 181.
of property conveyed before marriage, 182.
of property after separation, 182.
sufficiency of, varies with each case, 182.
of property in possession of vendee, 183.
removal of owner, 183.
when vendor accompanies goods, 183.
previous ownership, 183.
effect of consent, 184.
effect of notice, 184.
effect of knowledge, 184.
nominal party, 184.
transfer to debtor, 185.
conditional sale to debtor, 185.
special exceptions, 187.
when parties reside together, 188.

* mere convenience not sufficient, 189.

agreement to pay for use, 189.
must be consistent with title, 190.
under a mortgage, 192.
under deeds of trust, 192.
after condition broken, 193.
after purchase of equity of redemption, 193.
under marriage settlements, 194.
purchases with settled funds, 194.
purchases with settled funds of husband’s goods, 195.
purchasers with, under execution, 195.
public sales, 195.
mere seizure, 195.
646 INDEX.

POSSESSION—continued.
sale under deed of trust, 196.
sale under warrant of distress, 196.
sale under mortgage, 196,
sale under execution, 196.
stranger may purchase, 197.
public sale by private agreement, 197.
when change impossible, 198.
ponderous articles, 199, 200.
what change of ponderous articles necessary, 200.
delivery of brick, 201.
delivery of rafts, 201.
delivery of timber, 201.
delivery of key, 201.
delivery of growing crops, 202.
when goods are remote, 202.
ship at sea, 202.
goods at sea, 202.
vendee not bound to follow vessel, 203.
delay to take vessel, 203.
when vendor only has constructive possession, 204.
goods in a warehouse, 204.
goods in hands of bailee, 205.
goods in hands of servants, 206,
of property subject to rights of third parties, 206.
of goods upon the land of another, 207,
change prior to execution, 208.
delay in change of, a badge of fraud, 208.
change after death of vendor, 208.
change as to part, 208.
use of part is a badge of fraud, 209.
must be continued, 209.
temporary acts of ownership, 209.
neglect of agent, 210.
return by bailee, 210.
subsequent return, 210,
what possession requisite before return, 211.
choses in action, 212,
stocks, 212.
prior and subsequent creditors, 212.
land, 212.
INDEX. 647

POST-NUPTIAL SETTLEMENT, in pursuance of articles, 310,
must conform to articles, 311.
recital of articles no evidence, 311.
parol agreement void, 311.
effect of marriage, 312.
effect of representation, 312.
effect of written acknowledgement, 312.
for portion, 313.
deed of separation, 313.
for wife’s property, 314.
choses in action, 315.
where wife has right of settlement, 315.
wife’s separate estate, 316.
release of dower, 317.
agreement necessary, 317.
POWER OF APPOINTMENT, creditors may reach property, volun-
tarily appointed, 267.
when general, 267.
when not general, 268.
charge on land, 268.
makes donee owner, 268.
to take effect after donor’s death, 2438.
POWER OF REVOCATION renders assignment void, 381.
renders transfer void, 245.
power to make loans equivalent to, 382.
power to sell equivalent to, 162.
to declare uses subsequently, 382.
to affix schedules subsequently, 383.
to another, 384.
PREFERENCES, reasons for validity of, 213.
consequence of ownership, 213.
not favorable to commerce, 216.
not fraudulent, 217.
when others lose their debts, 218.
mode of, 219.
to defeat in execution, 220, 397.
secret motives immaterial, 222, 398.
must be bona fide, 222.
tainted by secret trust, 224.
gift by creditor, 225.
when creditor may purchase, 226.
in assignments, 394,
648 INDEX.

PROCESS, creditor must have, 453.
warrant of distress, 455.
attachment, 455.
must be valid, 455.
void renders creditor trespassert 455.
proof of, 456.
PROFITS, debtor cannot accumulate, 270.
business in wife’s name, 271.
not liable to levy, 465.
grantee must account, 567, 569.
computed from transfer, 570.
from improvements, 571.
amount of, 571.
set-off against improvements, 575.
PROPERTY, what within the statute, 259, 263.
choses in action, 263.
purchase in the name of another, 265.
expenditures upon another’s land, 267.
exempt, 268.
debtor’s labor, 269.
-accummulation of earnings, 270.
business in wife’s name, 271.
wife’s earnings, 272.
child’s earnings, 272.
emancipation of child, 272.
PURCHASE, in name of another, within the statute, 265.
grantee is trustee for creditors, 265.
may be reached in equity, 265, 509.
may be reached at law, 266. .
creditor must have judgment, 514.
under execution, 277.
PURCHASER BOWA FIDE. See Bona Finz Purcuaser.
PURCHASER UNDER EXECUTION has the rights of creditor, 488.
obtains good title, 463.
inadequacy, 463.
proof of title, 463.
subject to liens, 464.
of equity of redemption when mortgage is fraudulent, 464.
defects in title not good against, 464,
may file bill in equity, 520.
INDEX. 649

PURCHASER UNDER EXECUTION—continued.

against grantee, gets good title, 462.

dates from sale, 480.

postponed to unrecorded deed, 480.

good against subsequent purchase, 480.

unrecorded deed, 480.
RATIFICATION by creditor, 457.

notice, 457.

acquiesence, 457.

knowledge requisite, 457,

effect of negligence, 457.

expressed contract, 458.

receiving dividend, 458.

party to deed, 458.

assignees receiving money, 458.

advice, 458.

receiving note, 459.

subsequent indebtedness, 459.

estoppel, 459.

provision in assignment, 460.

attachment, 460.

receiving money under execution, 460.

policy of insurance, 460.

sale renders null, 460.

return of property, 461.

estoppel extends to privies, 461.
RECITALS OF CONSIDERATION presumptive, 554.

weak evidence, 554.

when proof of consideration material, 555.

additional consideration, 556.

consideration from other parties, 556.

cannot be varied, 557.

in marriage settlement, 311.
RECITALS, FALSE, a badge of fraud, 83.

absolute deed for mortgage, 84.

right to repurchase, 85.

false statement of consideration, 85.
RECONVEYANCE good against creditors of grantee, 250.

by parties, 467.

by administrator, 469.

grantee not liable after, 566.
650 INDEX.

RECORD. See Reeisrration.
RECOVERY binds those in remainder, 473.
REGISTRATION, omission of, 82.
does not render fraudulent deed valid, 324.
subsequent judgments, 479.
omission by purchaser, 480.
purchase in the name of another, 480.
REIMBURSEMENT none of consideration, 571.
money paid to debtor, 572.
money paid to creditors, 572.
money paid to extinguish mortgage, 572.
in case of constructive fraud, 574.
expenditures, 575.
improvements by donee, 576.
RELATION not a badge of fraud, 96.
suspicious, 96.
what raises suspicion, 96.
RELEASE, debt discharged by, not good consideration, 250.
assignments exacting, void, 427.
form of, 440.
partner may execute, 440.
when creditors not bound by, 444.
REMEDIES against fraudulent judgment, 499.
against fraudulent execution, 500.
against fraudulent attachment, 501.
against fraudulent executor de son tort, 502.
issue to try, 499, 500.
no injunction to prevent sale, 505.
assumpsit, 505.
action on the case, 505.
change of, 507.
action at law, 507.
issue in action at law, 508.
bill in equity, 508.
when no remedy at law, 509.
purchases in name of another, 265, 509.
choses in action, 509.
when creditor must have lien, 511.
what lien sufficient, 513.
return of execution, 514.
second execution, 515.
INDEX. 651

REMEDIES—continued.
kind of judgments, 515.
equitable demand, 516.
after death of debtor, 516.
in equity against executors de son tort, 517.
non-residents, 518.
after bankruptcy, 519.
by receivers, 520.
by assignee, 520.
by purchaser, 520.
creditor must have legal process, 453.
warrant of distress, 455.
attachment, 455.
void process, 455.
RENT, collecting, a badge of fraud, 91.
paying, a badge of fraud, 91.
nominal, a badge of fraud, 92.
remission of, 275.
RESERVATION. See Benerr.
REVOCATION. See Power or Revocation.
SALE of uncollectible demands, 419.
equity may direct, 534.
SALE UNDER ASSIGNMENT, delay in, 410.
illegal power, 411.
delay of, must be reasonable, 412.
without delay, 413.
discretion of assignee, 414.
at public, 415.
at private, 415.
at auction, 415.
completing manufactures, 415.
in ordinary course of business, 415.
on credit, 416.
SCHEDULES need not be annexed to assignment, 347.
need not give details, 347.
need not estimate value, 348.
need not name creditors, 348.
need not mention amount due, 348.
creditors may place their amounts on, 349.
omission of, a badge of fraud, 349.
652 INDEX.

SCHEDULES IN ASSIGNMENT, form of, 346, 347.

need not be annexed, 347.

certainty in description, 347.

estimate of value, 348.

- made essential by reference, 348.

of debts, 348.

description of debts, 348.

subsequent annexation, 349.

omission a badge of fraud, 349.

subsequent, giving preferences, 343.
SECRECY a badge of fraud, 81.

not conclusive, 82.

concealment of purchase, 82.

concealment of deed, 82.

omission to record deed, 82.

agreement to conceal, 83,
SECRET TRUST, origin of, 57.

a badge of fraud, 83.

false recitals, 83.

absolute deed as mortgage, 84.

right to repurchase, 85.

false consideration, 85.

vitiates preference, 224.

consideration for preference, 225.

vitiates transfer, 243.

fictitious consideration, 244.
SEPARATION, good consideration, 313.

form of contract, 313.

covenant of indemnity, 313.

omission of covenant, 314.

omission of trustee to execute, 314.
SEQUESTRATION, transfer to defeat, fraudulent, 487.
SETTLEMENT. See Marriage Serrnement, Votuntary ConvEy-

ANCES,

SHERIFF, within the statute, 488.

may file bill, 520.

may unite with creditor, 521.

must be impartial, 500.

notice to deputy, 501.

may allow debtor to use property, 498, 501.
INDEX. , 653

SHIP, sale of, at sea, 202.
vendee need not follow, 203.
vendee must use reasonable diligence, 203.
no agent at home port, 204.
selzure on process, 204,
notice to captain, 204.
STOCK, change of possession, 212.
transfer within the statute, 263.
SUBSEQUENT CREDITORS, rights at common law, 320.
within the statute, 321,
intent requisite, 321.
burden of proof, 321.
badges of fraud, 322.
not mere indebtedness alone, 323.
actual intent, 324,
recording deed, 324.
when voluntary deed valid, 324.
may impeach voluntary conveyance, 326.
when donor is insolvent, 327.
continuous indebtedness, 327.
proof of prior debts, 328.
remedies, 329.
participation by, 329.
property conveyed to use of debtor, 329.
power of disposition, 330.
power of revocation, 330.
discretion of trustee, 330.
colorable transfers, 331.
transfer for valuable consideration, 331.
change of possession, 332.
who are, 488.
SUPPORT, when fraudulent, 246.
when full consideration paid, 247.
employment of grantor, 247,
by solvent debtor, 247.
SURETY, within the statute, 485.
has rights of creditor, 489.
right referred to date of obligation, 489.
provision for in assignment, 386, 387.
contingent liability, 388.
654 INDEX.

SURPLUS belongs to grantee, 467, 577.
disposition of, in assignment, 404.
disposition of, in assignment when fraudulent, 406.
disposition of, in assignment by partners, 406.
disposition of, in assignment after payment of all, 408.
disposition of, in assignment exacting releases, 436.
TAXES, reimbursement for, 576.
TENANT, bound by landlord’s transfer, 452.
cannot dispute grantee’s title, 452.
remission of rent to, 275.
forfeiture by, 274.
TRANSFER, how far void, good between parties, 442.
grantor, 443.
heirs, 443.
executors, 444.
administrators, 444.
agent, 444,
parties claiming under debtor, 444.
rights of debtor under executory contract, 445.
equity will not enforce an agreement, 446.
trust in fraudulent deed, 446.
when parties not in paré dilecto, 447.
Seme covert, 447,
unfounded claim, 447.
redemption of fraudulent mortgage, 448.
rights of grantees inter se, 448.
no action at law on note, 449.
bona fide holder of note, 449.
actions at law by grantee, 450.
grantee has no remedy in equity, 450.
after reconveyance, 451.
grantee cannot enforce agreement, 451.
valid against third parties, 451.
debtor’s tenant, 452.
prior mortgage, 452,
grantee’s tenant, 452.
bailee, 452,
purchasers from grantee, 452.
stockholders, 452.
chose in action, 452.
creditor must have process, 453,
warrant of distress, 455,
INDEX. 655

TRANSFER—continued.
attachment, 455.
void process, 455.
deed from debtor, 456.
ratification, 457,
estoppel, 459.
return of benefit, 461.
lien of judgment, 461.
creditors of grantee, 462.
purchaser under execution, 463.
prior liens, 464.
equity of redemption, 464.
sale subject to transfer, 464,
sale by assignee, 465.
no levy on profits, 465.
partition by grantee, 466.
defeasible estate rendered absolute, 466.
redemption by grantee, 466.
dissolution of attachment, 466.
purchase under execution by grantee, 467,
dower, 467.
exemption, 467.
rescission, 467.
rescission by administrator, 469.
voluntary assignee, 469.
mortgage debt, 470.
fraudulent transfer of equity of redemption, 470.
void in toto, 470.
void as to part of property, 471.
fraudulent stipulation, 472.
when one grantee is innocent, 472.
recovery, 473.
creation of an annuity, 473.
refusal to take title, 473.
note in name of another, 473.
TRANSFERS, WHAT WITHIN THE STATUTE, every device, 259,
not transfer to debtor, 260.
not payment to debtor, 261.
only creditors of debtor, 262.
kind of property, 263.
choses in action, 263.
purchase in the name of another, 265.
656 INDEX.

TRANSFERS, WHAT WITHIN THE STATUTE—continued.
expenditures upon the Jand of another, 267.
power of appointment, 267.
exempt property, 268.
labor, 269.
business in wife’s name, 271.
wife’s earnings, 272.
child’s earnings, 272.
emancipation of child, 272.
every form of conveyance, 273.
forfeiture of lease, 274.
outlawry, 274.
cancellation of indebtedness, 274,
remission of rent, 275.
contract relating to land, 275.
judgment, 276.
sale under execution, 276.
purchase under execution with debtor’s money, 277.
TRUST, SECRET. See Szcrer Trust.
TRUST OF PERSONAL PROPERTY, void, 238.
resuluing, 240.
what benefits may be reserved, 242,
support of debtor, 246.
TRUSTEE. See Assrenze.
UNDUE INFLUENCE, ground for relief, 447,
USES. See Trusts.
VALIDITY. See Transrer, HOW FAR VOID.
VALUABLE CONSIDERATION, See Consiperation.
VOLUNTARY CONVEYANCES, definition of, 279,
intent of donor alone, 279.
participation by acceptance, 280.
fraudulent intent necessary, 280.
proof of intent, 281.
when intent a conclusion of law, 282.
secret motives 283.
mistake, 283.
indebtedness a badge of fraud, 284.
presumptive evidence of fraud, 285,
burden of proof of donee, 286,
proof of ample means, 286.
person free from debt, 287.
INDEX. 657

VOLUNTARY CONVEY ANCES—continued.
by person in debt, 288.
mere indebtedness, 289.
comparative indebtedness, 291.
by insolvent, 292.
which leaves donor insolvent, 293.
insolvency not necessary, 293.
effect to defraud, 294.
solvency determined by event, 294.
demands to be met, 295.
proof must be clear, 295.
such as prudent man would make, 296.
ordinary course of events, 296.
nominal assets, 297.
hazards of business, 297.
property must be accessible, 298.
incumbered property, 298.
property where donor resides, 298,
different kinds of property, 299.
solvency determined by result, 299.
negligence of creditors, 300.
accident, 300.
improvidence, 301.
no secret trust, 301.
valid when donor has ample means, 302.
partially voluntary, 303.
when valid against subsequent creditors, 324.
void against prior is void against subsequent, 326.
continuous indebtedness, 327.
when subsequent creditors may impeach, 329.
participation by subsequent creditors, 329.
WAGES, of child, 258, 272.
of wife, 258, 272.
of debtor, 269.
of child after emancipation, 272.
WIFE. See HusBanp AND WIFE.
WITNESS may testify to his own intent, 553.
cannot testify to intent of another, 553.
effect of omission to produce, 95.

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