. 
 
 
HP 
 
 , Cornell University Law Library 
 
 The Moak Collection 
 
 PURCHASED FOR 
 
 The School of Law of Cornell University 
 
 And Presented February 14, 1893 
 in rmnoRY OF 
 JUDGE DOUGLASS BOARDMAN 
 
 FIRST DEAN OF THE flOHOOL 
 
 By his Wife and Daughter 
 A. M. BOARDMAN and ELLEN D. WILLIAMS 
 
KF 1534.B C 94 n i882 Ver8,,y L,brary 
 Fr aujlulent convey 
 
Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924019309578 
 
Fraudulent Conveyances. 
 
 A TREATISE 
 
 UPON CONVEYANCES MADE BY DEBTORS 
 TO DEFRAUD CREDITORS. 
 
 CONTAINING REFERENCES TO ALL THE CASES 
 
 BOTH 
 
 ENGLISH AND AMERICAN. 
 
 BY ^ 
 
 OELA5DO F. BUMP, 
 
 COUNSELLOR AT LAW. 
 
 Shiejd Edition. 
 
 BALTIMORE : 
 
 CUSHINGS & BAILEY, PUBLISHERS. 
 
 262 WEST BALTIMORE STREET. 
 
 1882. 
 
Entered, according to Act of Cong] 
 
 j year eighteen hundred and eighty-two, by 
 OKLANDO F. BUMP, 
 In the Office of the Librarian of Congress, at "Washington. 
 
 Isaac Friedenwald, Print, 
 Baltimore, Md. 
 
PREFACE. 
 
 The 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 collection 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, how- 
 ever, treat of the statute of 27 Eliz., as well as the statute of 13 
 Eliz., and are confined to the English cases. It is manifest 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 American authori- 
 ties are very numerous and important. This work is therefore 
 confined to conveyances to defraud creditors, and contains refer- 
 ences 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 considering the law of Fraudu- 
 lent 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 conveyance can defraud 
 creditors is a question that will sometimes depend upon the con- 
 dition and character of the remedies afforded by the various 
 States. It is no part of this work to treat of local statutes 
 affecting remedies, or relating to anything else. Each practi- 
 tioner is to be presumed to be familiar with the statutes of his 
 
iv PREFACE. 
 
 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 practi- 
 tioner 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 preferred, as a rule, to leave such 
 conflict of authority without explanation, rather than encumber 
 his work with explanations which would not interest the pro- 
 fession 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. Differ- 
 ent minds do and inevitably must reach different conclusions, 
 and the doctrine of each court is the law within its jurisdiction. 
 
 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 useless and 
 misleading in those States where a contrary doctrine prevails. 
 To avoid this objection, and render the work practical, the plan 
 has been adopted of presenting a theory of the law in the text 
 and citing all the authorities, so that each practitioner 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- 
 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 pre- 
 sent a systematic and consistent theory of the law, and to so 
 arrange and classify the authorities as to unfold that theory. 
 
PREFACE. V 
 
 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 sympathize 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. . 
 
 Oklando F. Bump. 
 Baltimore, Nov. lit, 1872. 
 
PREFACE TO THIRD EDITION. 
 
 In this edition the citation of cases has been brought down to 
 
 the present year, and some portions of the work have been 
 
 entirely rewritten, but in the main the author has adhered to 
 
 the original plan. 
 
 Oelando F. Bump. 
 
 Baltimore, September \»t, 1882. 
 
CONTENTS. 
 
 CHAPTEE I. 
 
 PAGE 
 HlSTOET OF THE Law OF FRAUDULENT CONVEYANCES . 1 
 
 CHAPTEE II. 
 What Constitutes a Fraudulent Conveyance . . 13 
 
 CHAPTEE 111. 
 Fraudulent Intent 17 
 
 CHAPTEE IV. 
 Badges of Fraud 31 
 
 CHAPTEE V. 
 Possession 61 
 
 CHAPTEE VI. 
 When Possession is Fraud per se .... 132 
 
 CHAPTEE VII. 
 Preferences 179 
 
 CHAPTEE VIII. 
 Bona Fides of the Transfer ..... 195 
 
viii CONTENTS. 
 
 CHAPTER IX. 
 
 CoNSIDEEATION ..... . 221 
 
 CHAPTER X. 
 What Teansfebs aee within the Statute . . 234 
 
 CHAPTER XI. 
 
 Voluntaey Conveyances ... . 267 
 
 CHAPTER XII. 
 Nuptial Settlements 296 
 
 CHAPTER XIII. 
 
 Subsequent Ceeditoes .... . 314 
 
 CHAPTER XIV. 
 
 Assignments foe the Benefit of Ceeditoes . . . 329 
 
 CHAPTER XY. 
 Assignments exacting Releases . . . . .428 
 
 CHAPTER XVI. 
 
 How fae a Feaudulent Teansfee is Void . . . 443 
 
 CHAPTER XVII. 
 Bona Fide Pueohasees 490 
 
 CHAPTER XVIII. 
 Who aee Ceeditoes . 502 
 
 CHAPTER XIX. 
 International Law . s . . . . 5H 
 
CONTENTS. IX 
 
 CHAPTER XX. 
 
 Executions, Judgments and Attachments . . .516 
 
 CHAPTER XXI. 
 
 Executors de son tort .... . 524 
 
 CHAPTER XXII. 
 Remedies ... ...... 527 
 
 CHAPTER XXIII. 
 Evidence • 574 
 
 CHAPTER XXIV. 
 Extent op Grantee's Liability 607 
 
 Cases from the Year Books 622 
 
 Appendix (Statutes of the various States) . . . 627 
 
 Index ... 655 
 
TABLE OE CASES CITED. 
 
 Abbe v. Newton, 295. 
 
 Abbey v. Commercial Bank, 531, 
 
 565. 
 Abbey v. Deyo, 248. 
 Abbott v. Goodwin, 125, 128. 
 Abbott v. Hurd, 319. 
 Abbott v. Tenney, 240, 322, 445. 
 Abercrombie v. Bradford, 334, 361, 
 
 363, 401, 417. 
 Abney v. Kingsland, 260, 479, 585, 
 
 586, 589, 590, 609. 
 Ackerman v. Cross, 512. 
 Ackerman v. Smiley, 197. 
 Ackworth v. Kempe, 463. 
 Acraman v. Corbett, 309, 310. 
 Acton v. Knowles, 520. 
 Acton v. Woodgate, 339, 340. 
 Adams v. Jlallett, 504. 
 Adams, ex parte, 445. 
 Adams v. Adams, 219, 225, 320. 
 Adams v. Blodgett, 333, 393. 
 Adams v. Brough'ton, 213, 445. 
 Adams v. Davidson, 54, 379, 547, 
 
 589. 
 Adams v. Foley, 583. 
 Adams v. Paige, 529. 
 Adams v. Sater, 35, 37. 
 Adams v. Wheeler, 46, 156, 179, 
 
 191, 225, 231. 
 Adams v. Woods, 395. 
 Addington v. Etheridge, 122, 125. 
 Adler v. Claflin, 128. 
 Adler v. Eckler, 402. 
 Adler v. Fenton, 528. 
 Adlum v. Yard, 413, 468. 
 Adsit v. Sanford, 538. 
 Agricultural Bank v. Dorsey, 493, 
 
 500. 
 Alabama Insurance Co. v. Pettway, 
 
 19, 43. 
 Alabama Warehouse Co. v. Jones, 
 
 544. 
 
 Albany Bank v. Schermerhorn, 
 
 570, 571. 
 Albee v. Webster, 216, 218, 220, 
 
 486. 
 Albert v. Winn, 364, 392, 431, 433, 
 
 434, 488. 
 Aldrich v. Earle, 588. 
 Aldridge v. Muirhead, 250. 
 Alexander v. Deneale, 108, 111. 
 Alexander v. Gould, 502, 581. 
 Alexander v. Tarns, 257, 532. 
 Alexander v. Todd, 44, 49, 50, 51, 
 
 52, 55, 56, 58, 200, 203, 208, 
 
 209 226, 609, 612. 
 Alexander v. Young, 187. 
 Alford v. Baker, 543, 554. 
 Alkins v. Saxton, 259. 
 Allaire v. King, '327. 
 Allen v. Allen, 308. 
 Allen v. Allen's Adm., 445. 
 Allen v. Berry, 614. 
 Allen v. Bonnett, 55. 
 Allen v. Brown, 487. 
 Allen v. Camp, 462, 534, 537. 
 Allen v. Center Valley Co., 258. 
 Allen v. Cowan, 114, 115, 117, 595. 
 Allen v. Edgarton, 138, 142. 
 Allen v. Holland, 483. 
 Allen v. Kennedy, 128, 185. 
 Allen v. Kimball, 524. 
 Allen v. Kingon, 28. 
 Allen v. Montgomery, 231, 534, 545, 
 
 546, 551. • 
 Allen v. Montgomery R. R. Co., 231 
 Allen v. Mower, 445, 559. 
 Allen v. Russell, 295. 
 Allen v. Smith, 62, 127, 128, 165, 
 
 166, 167. 
 Allen v. Trustees, 621. 
 Allen v. Walt, 281, 307. 
 Allen v. Wheeler, 22, 33, 111. 
 Allen v. White, 559. 
 
Xll 
 
 TABLE OF CASES CITED. 
 
 Allentown Bank v. Beck, 162, 163, 
 
 178. 
 Alley v. Connell, 616. 
 Allison v. Hagan, 224. 
 Allison v. Weller, 548. 
 Allyn v. Thurston, 541, 542. 
 Alston v. Bowles, 241, 290, 306, 
 
 307, 503, 508, 605. 
 Alt v. Lafayette Bank, 250. 
 Alton v. Harrison, 35, 60, 185. 
 American Exchange Bank v.Inloes, 
 
 393, 415. 
 American Exchange Bank v. Webb. 
 
 384, 403. 
 Ames v. Blunt, 434, 472, 608, 609. 
 Ames v. Gilmore, 45, 49, 57, 567. 
 Amnion's Appeal, 282, 324. 
 Amsden v. Manchester, 590, 592. 
 Anderson v. Anderson, 508. 
 Anderson v. Biddle, 235. 
 Anderson v. Bradford, 459, 542. 
 Anderson v. Brooks, 162, 163. 
 Anderson v. Dunn, 445, 456. 
 Anderson v. Fuller, 42, 112, 216, 
 
 616. 
 Anderson v. Hooks, 17, 197, 488. 
 Anderson v. Maltby, 230, 259, 507. 
 Anderson v. Bhodus, 444. 
 Anderson v. Boberts, 491, 492, 496. 
 Anderson v. Smith, 228. 
 Anderson v. Tuttle, 544. 
 Anderson v. Tydings, 184, 209, 
 
 596. 
 Andrews v. Durant, 461, 462. 
 Andrews v. Jones, 52, 224, 238, 
 
 256, 296, 298, 304. 
 Andrews v. Ludlow, 405, 437. 
 Andrews v. Marshall, 462. 
 Angell v. Draper, 534. 
 Angell v. Bosenburg, 359, 370, 371, 
 
 372, 373, 375, 376, 377, 384, 
 
 438. 
 Angier v. Ash, 474, 581. 
 Angrave v. Stone, 583, 595. 
 Annin v. Annin, 311, 466, 546, 555, 
 
 566. 
 Annis v. Bonar, 219. 
 Anon, 218, 219, 255, 304, 315, 319, 
 
 324, 445, 448. 
 Ansley v. Carlos, 260, 263, 265, 
 
 526, 533, 536. 
 Anthony v. Stype, 397. 
 Anthony v. Wade, 146, 245, 621. 
 Antiem v. Kelly, 323. 
 Antisdel, James S., In re, 568. 
 
 Apharry v. Bodingham, 505. 
 Apperson v. Ford, 197, 568. 
 Apperson v. Burgett, 37, 45, 122, 
 
 545. 
 Apple v. Ganong, 252. 
 Archer v. O'Brien, 198. 
 Archer v. Hubbell, 100, 127, 138. 
 Armfleld v. Armfield, 302. 
 Armington v. Houston, 151. 
 Armstrong v. Baldock, 158, 161. 
 Armstrong v. Groft, 541. 
 Armstrong v. Byrne, 434. 
 Armstrong v. Fahnestock, 258. 
 Armstrong v. Tuttle, 123, 615. 
 Arnett v. Wanett, 279, 292. 
 Arnholt v. Hartwig, 203. 
 Arnold's Heirs v. Arnold's Adm., 
 
 226. 
 Arnold v. Bell, 209, 281, 295. 
 Arnold v. Hymes, 447. 
 Arnot v. Beadle, 242, 530. 
 Arrowsmith v. O'Sullivan, 328. 
 Arthur v. Commercial Bank, 396, 
 
 400, 424. 
 Arundell v. Phipps, 65, 111, 159, 
 
 298, 306. 
 Ash v. Savage, 156. 
 Aehby v. Minnitt, 530. 
 Ashfleld v. Ashfleld, 244. 
 Ashley's Adm. v. Bobinson, 337. 
 Ashmead v. Hean, 189, 207. 
 Ashurst's Appeal, 459. 
 Ashurst y. Given, 248, 251. 
 Ashurst v. Martin, 23, 414, 417, 
 
 423, 426, 435. 440. 
 Askew v. Beynolds, 589. 
 Aspinall v. Jones, 528. 
 Athey v. Knotts, 243, 308. 
 Atkinson v. Jordan, 183, 434. 
 Atkinson v. Maling, 168, 231. 
 Atlantic Nat'l Bank v. Tavener, 
 
 186. 
 Atwood v. Holcomb, 253. 
 Atwood v. Impson, 195, 201, 594. 
 Atwood v. Protection Ins. Co., 512, 
 
 513. 
 Auble v. Mason, 313, 616. 
 Auburn Bank v. Fitch, 184, 188, 
 
 189. 
 August v. Seeskind, 28, 365, 422. 
 Aurand v. Schaffer, 313. 
 Austin v. Barrows, 521, 528. 
 Austin v. Bell, 399, 400, 405, 426, 
 
 437, 474. 
 Austin v. Brown, 521. 
 
TABLE OP CASES CITED. 
 
 Xlll 
 
 Austin v. Johnson, 213. 
 Austin v. Winston, 449. 
 Averill v. Loucks, 342, 382, 608. 
 Avery v. Avery, 445. 
 1 Avery v. Easter, 205. 
 Avery v. Johann, 201. 
 Avery v. Street, 49, 53, 178, 208. 
 A'yer v. Bartlett, 151, 152, 236, 
 
 318. 
 Ayrault v. Murphy, 498. 
 Ayer v. Duncan, 455. 
 Ayres v. Husted, 43, 486. 
 Ayres v. Moore, 112, 200. 
 
 Babb v. Clemson, 27, 38, 113, 137, 
 
 587, 589. 
 Babcock v. Booth, 445. 
 Babcock v. Eckler, 23, 270, 271, 
 
 276, 292, 306, 601. 
 Bachemin v. Chaperon, 122. 
 Bachman v. Sepulveda, 549, 566. 
 Backhouse v. Jett, 526, 609, 612. 
 Bacon v. Scannell, 176. 
 Badger v. Story, 197, 507, 581. 
 Badlam v. Tucker, 156, 168, 169, 
 
 231. 
 Bagg v. Jerome, 22. 
 Bailey v. Bailey, 505. 
 Bailey v. Burton, 43, 46, 526, 539. 
 Bailey v. Foster, 455. 
 Bailey v. Harris, 235. 
 Bailey v. Kennedy, 191, 606. 
 Bailey v. Mills, 358, 397. 
 Bailey v. Nicholl, 557. 
 Bailey v. Byder, 566. 
 Bainton v. Ward, 244. 
 Baird v. Williams, 187. 
 Baker's Appeal, 258. 
 Baker v. Bartol, 546, 555, 608. 
 Baker v. Bibb. 37, 47. 
 Baker v. Bliss, 494, 500. 
 Baker v. Chandler, 553. 
 Baker v. Gilman, 320, 328, 452, 471, 
 
 502, 509. 
 Baker v. Lyman, 289, 465, 543. 
 Baker v. Welch, 277, 575. 
 Baldwin v. Buckland, 360, 372, 374, 
 
 379. 
 Baldwin v. Campfield, 448. 
 Baldwin v. Cawthorne, 448, 457. 
 Baldwin v. Jackson, 523. 
 Baldwin v. Johnston, 241. 
 Baldwin v. Martin, 564. 
 Baldwin v. Peet, 337. 354, 355, 361, 
 
 403, 417, 418, 423, 425. 
 
 Baldwin v. Ryan, 223, 292, 535. 
 Baldwin v. Tuttle, 466, 472. 
 Baldwin v. Tynes, 351. 
 Ball v. Bowe, 387, 393. 
 Ball v. Burnford, 298. 
 Ball v. Loomis, 378, 587. 
 Ball v. Slafter, 128. 
 Ballard v. Winter, 514. 
 Ballentine v. Beall, 539, 546, 550, 
 
 568, 570. 
 Ballow v. Jones* 542. 
 Bait. & Ohio R. R. Co. v. Glenn, 
 
 400, 402, 511. 
 Bait. & Ohio R. R. Co. v. Hoge, 
 
 579, 592. 
 Bamford v. Baron, 95, 128, 329, 513. 
 Bancroft v. Blizzard, 361. 
 Bancroft v. Curtis, 223. 
 Bancroft v. Snodgrass, 412. 
 Banfield v. Whipple, 22, 189, 190. 
 Bangor v. Warren, 320, 510. 
 Bank v. Ballard, 238, 562. 
 Bank v. Brown, 306, 308, 309, 310. 
 Bank v. Burke, 445, 570. 
 Bank v. Cox, 386, 397, 403, 423, 
 
 424, 435, 436. 441. 
 Bank v. Ennis, 320. 
 Bank v. Finch, 231, 595. 
 Bank v. Fink, 50, 51, 384. 
 Bank v. Gettinger, 515. 
 Bank v. Gourdin, 39, 120. 
 Bank v. Harris, 551. 
 Bank v. Higginbottom, 35, 228. 
 Bank v. Housman, 39, 50, 178, 320, 
 
 321, 595. 
 Bank v. Jacobs, 42. 
 Bank v. Lee, 306. 309. 
 Bank v. Marchand, 296, 298, 302, 
 
 510. 
 Bankv. McDade, 161, 225. 
 Bank v. Mitchell, 227, 307. 
 Bank v. Patton, 316, 320. 324. 
 Bank v. Planters' Bank, 187. 
 Bank v. Suydam, 549, 551. 
 Bank v. Talcott, 345, 366, 383, 384, 
 
 386, 401. 
 Bank v. Willard, 231. 
 Banks v. Brown, 596. 
 Banks v. Clapp, 395, 396. 
 Banning v. Sibley, 332, 405, 419. 
 Barber v. Mitchell, 522. 
 Barber v. Terrell, 217, 591, 595, 599. 
 Barbour v. Everson, 346. 
 Barcroft v. Snodgrass, 345, 352, 390, 
 
 396, 608. 
 
XIV 
 
 TABLE OF CASES CITED. 
 
 Barbam v. Massey, 519. 
 
 Barker v. French, 41, 42. 
 
 Barker v. Hall, 128, 131. 
 
 Barker v. Woods, 307. 
 
 Barkow v. Sanger, 29, 43, 127. 
 
 Barley v. Tipton, 462. 
 
 Barling v. Bishopp, 315, 317, 319, 
 
 504. 
 Barnard v. Davis, 58. 
 Barnard v. Eaton, 125. 
 Barnard v. Ford, 281, 308. 
 Barnard v. Moore, 231. 
 Barnard v. Sutton, 448. 
 Barncord v. Kuhn, 309. 
 Barnes v. Billington, 519. 
 Barnet v. Fergus, 127, 487. 
 Barnett v. Goings, 309. 
 Barney v. Brown, 170. 
 Barney v. Griffin, 405, 412, 424. 
 Barnitz v. Bice, 438. 
 Barnum v. Farthing, 293. 
 Barnum v. Hempstead, 382, 383, 
 
 401. 
 Barnwell v. Ward, 606. 
 Barr v. Hatch, 35, 38, 42, 50, 122, 
 
 178, 186, 188, 189, 190, 194, 216, 
 
 476, 507, 546. 
 Barr v. Keitz. 135, 136, 145, 148, 
 
 167. 
 Barrack v. McCulloch, 239, 241. 
 Barrett v. Pritchard, 151. 
 Barrett v. Keed, 428, 434, 570. 
 Barringer v. Stower, 249. 
 Barron v. Barron, 306, 308. 
 Barron v. Morris, 125. 
 Barrow v. Bailey, 14, 15, 36, 39, 45, 
 
 57, 199, 209, 220, 534, 557, 606. 
 Barrow v. Paxton, 62, 97, 156. 
 Bartels v. Harris, 23, 190, 213, 225. 
 Bartholomew v. West, 482. 
 Bartlett v. Blake, 111, 236, 603. 
 Bartlett v. Mercer, 232. 
 Bartlett v. Teay, 415. 
 Bartlett v. Williams, 15'8, 173. 
 Barton v. Bolton, 511. 
 Barton v.' Bryant, 549, 552, 570. 
 Barton v. Hosner, 445, 542. 
 Barton v. Morris, 444, 446. 
 Barton v. Vanheythuysen, 461, 464. 
 Basey v. Daniel, 51, 58. 
 Basham v. Chamberlain, 252. 
 Bassett v. St. Albans Hotel Co., 
 
 536. 
 Bastein v. Dougherty, 208. 
 Basye v. Daniel, 59. 
 
 Batchelder v. Carter, 163. 
 
 Bate v. Graham, 545. 
 
 Bates v. Ableman, 372, 373, 403, 
 
 581, 587, 594. 
 Bates v. Bradley, 545. 
 Bates v. Carter, 162. 
 Bates v. Coe, 184. 
 Battersbee v. Farrington, 277, 303. 
 Baugh v. Boles, 290, 552, 554. 
 Baugh v. Monagan, 249. 
 Bauknight v. Sloan, 547, 551. 
 Baxter v. Sewell, 276, 497, 597, 598. 
 Baxter v. Wheeler, 401. 
 Bay v. Cook, 44, 113, 241, 242, 292. 
 
 504, 532, 541. 
 Bay State Iron Co. v. Goodall, 533, 
 
 555 556. 
 Bayard V. Hoffman, 240, 279, 484. 
 Bayless v. Elcan, 446. 
 Baylor v. Smither's Heirs, 151, 236. 
 Bayne v. Wylie, 441. 
 Beach v. Baldwin, 232, 252. 
 Beach v. Bestor, 404. 
 Beach v. Catlin, 563, 583. 
 Beach v. Viles, 333. 
 Beach v. White, 307, 322, 323, 324, 
 
 538, 548. 
 Beadle, In re, 437, 474. 
 Beadless v. Miller, 197. 
 Beale v. Hall, 445, 448. 
 Beall v. Harrell, 496. 
 Beall v. Williamson, 446. 
 Beals v. Guernsey, 62, 97, 111, 201. 
 Beamish v. Conant, 379. 
 Bean v. Brackett, 257. 
 Bean v. Loftus, 463. 
 Bean v. Smith, 35, 37, 58, 240, 241, 
 491, 492, 531, 533, 598, 606, 
 612, 614, 615, 617. 
 
 Beans v. Bullitt, 332. 
 
 Beards v. Wheeler, 186, 521. 
 
 Beardsley Scythe Co. v. Foster, 
 548, 551. 
 
 Bear's Estate, 194. 
 
 Beattie v. Bobin, 113. 
 
 Beatty v. Davis, 394, 407, 421. 
 
 Beatty v. Poole, 260. 
 
 Beaumont v. Crane, 236. 
 
 Beaumont v. Fletcher, 568. 
 
 Beaumont v. Thorp, 304. 
 
 Bebb v. Preston, 395, 396. 
 
 Beck v. Burdett, 405, 406, 534, 537, 
 -571. 
 
 Beck- v. Parker, 360. 
 
 Becker v. Smith, 236. 
 
TABLE OF CASES CITED. 
 
 XV 
 
 Beckham v. Secrest, 281. 
 Bedell v. Chase, 205, 593. 
 Beebe v. Saulter, 445. 
 Beecher v. Clark, 40, 267, 287. 
 Beeckman v. Montgomery, 316, 
 
 317, 319. 
 Beekman's Appeal, 474. 
 Beekman v. Bond, 102, 153. 
 Beeler v. Bullitt, 35, 37, 43, 263. 
 Beers v. Bottsford, 215. 
 Beers v. Dawson, 115. 
 Beers v. Lyon, 394. 
 Beirne v. Patton, 513, 515. 
 Belford v. Crane, 232, 242, 252, 316, 
 
 481, 532, 559. 
 Belk v. Masse, 122, 603. 
 Belknap v. Hastings, 537. 
 Belknap v. Wendell, 594. 
 Bell v. Devere, 58. 
 Bell v. Fleming, 231 . 
 Bell v. Greenwood, 228. 
 Bell v. Hill, 600. 
 Bellamy v. Bellamy, 340, 408. 
 Bellows v. Patridge, 398, 414, 419, 
 
 420. 
 Bellows v. Bosenthal, 250. 
 Bellows v. Wells, 165. 
 Belmont v. Lane, 30. 
 Belt v. Raguet, 198, 268, 562, 590, 
 
 592, 598. 
 Benedict v. Huntington, 388, 411, 
 
 414. 
 Benedict v. Parmenter, 514. 
 Benford v. Schell, 165, 167. 
 Benhatn v. Cary, 590. 
 Benjamin v. Smith, 518, 520. 
 Bennett v. Bedford Bank, 291, 320. 
 Bennett v. Hutson, 482, 568. 
 Bennett v. McGuire, 268, 281, 550, 
 
 588. 
 Bennett v. Musgrove, 531, 544, 606. 
 Bennett v. Stout, 450, 534, 588. 
 Bennett v. Union Bank, 46, 47. 
 Benning v. Nelson, 337, 361, 583. 
 Bentley v. Dunkle, 554. 
 Bentley v. Goodwin, 506. 
 Bentley v. Harris, 498. 
 Bentley v. Heintze, 260. 
 Bentley v. Whittemore, 511. 
 Benton v. Allen. 548. 
 Benton v. Jones, 42, 277, 319. 
 Benton v. Thornhill, 96, 111, 125, 
 
 184, 191. 
 Bentz v. Riley, 23, 134, 186, 192, 
 
 217. 
 
 Bernal v. Hovious, 165. 
 
 Bernard v. Moseley, 519. 
 
 Bernheim v. Beer, 610. 
 
 Berry, Ex parte, 227. 
 
 Berry v. Cutts, 363, 394. 
 
 Berry v. Hayden, 367, 418, 419. 
 
 Berry v. Matthews, 369, 417. 
 
 Berry v. Riley, 401, 405. 
 
 Berry v. Smith, 516, 517, 518, 519, 
 
 520. 
 Berryman v. Sullivan, 539. 
 Bertrand v. Elder, 242, 290, 532. 
 Besson v. Eveland, 311, 313. 
 Bessy v. Windham, 459. 
 Bethel v. Stanhope, 218, 445. 
 Betts v. Union Bank, 299, 596, 598. 
 Betz v. Connor, 121. 
 Beurman v. Van Buren, 194, 198. 
 Beverly's Case, 255. 
 Bevins v. Dunham, 232. 
 Bholen v. Cleveland, 348, 512. 
 Bibb v. Baker, 35, 58, 456, 614. 
 Bibb v. "Freeman, 504. 
 Bickerstaff v. Doub, 236, 463. 
 Bickley v. Norris, 240, 263, 533. 
 Bigelow v. Andress, 537. 
 Bigelow v. Ayrault, 606, 617. 
 Bigelow v. Doolittle, 35. 
 Bigelow v. Huntley, 151. 
 Bigelow v. Smith, 496. 
 Bigelow v. Stringer, 23, 47. 
 Bilhofer v. Heubach, 539, 540. 
 Billings v. Billings, 411, 417, 418. 
 Billingsley v. Bunce, 125. 
 Billingsley v. White, 133, 139, 141. 
 Bilsborow v. Titus, 224. 
 Bingham v. Young, 519. 
 Birchell v. Strauss, 344. 
 Bird v. Andrews, 141. 
 Bird v. Boldue, 292. 
 Bird v. Sitken, 188. 
 Birely v. Staley, 284, 287, 540, 541, 
 
 547, 549, 597. 
 Bh'ge v. Nock, 477. 
 Bishoff v. Hartley, 582. 
 Bishop v. Catlin, 394, 470, 614, 615. 
 Bishop v. Halsey, 405, 546. 
 Bishop v. O'Connell, 135, 143. 
 Bishop v. Warner, 125, 127. 
 Bissell v. Hopkins, 62, 99, 111. 
 Bixby v. Carskaddon, 190, 604, 605. 
 Black v. Cadwell, 58, 59, 295, 507. 
 Black v. Nease, 313, 315. 
 Black v. Sanders, 272, 284, 287. 
 Black v. Weathers, 346. 
 
XVI 
 
 TABLE OF CASES CITED. 
 
 Blackman v. Wheaton, 11, 402. 
 Blackwell v. Walker, 236. 
 Blair v. Alston, 580. 
 Blair v. Bass, 41, 42, 197. 
 Blaisdell v. Cowell, 53, 54, 600. 
 Blaisdell v. Ladd, 523. 
 Blake v. Faulkner, 369. 
 Blake v. Graves, 173, 589. 
 Blake v. Howard, 584. 
 Blake v. Hubbard, 530. 
 Blake v. Jones, 308, 315. 
 Blake v. Sawin, 197, 282, 289. 
 Blake v. White, 582, 583, 589. 
 Blake v. Williams, 492. 
 Blakeney v. Kirkeley, 285, 288. 
 Blakey's Appeal, 184. 
 Blanchard v. Ingersoll, 312. 
 Blanchard v. McKay, 190. 
 Blanton v. Taylor, 618. 
 Blanton v. Whittaker, 562. 
 Blaut v. Gabler, 115, 594. 
 Bleakley's Appeal, 614. 
 Blenkinsopp v. Blenkinsopp, 505, 
 
 529, 531. 
 Blocker v. Burness, 112. 
 Blodgett v. Chaplin, 37, 47, 58. 
 Blood v. Palmer, 151, 231, 235. 
 Bloom, Erastus S., In re, 125. 
 Blount v. Costen, 452. 
 Blount v. Doughty, 209, 295. 
 Blow v. Gage, 379, 384, 393, 423, 
 
 424, 558, 559, 603. 
 Blow v. Maynard, 35, 44, 302, 306, 
 
 311, 612. 
 Blue v. Penniston, 510, 579, 591. 
 Boardman v. Cushing, 42. 
 Boardman v. Halliday, 182, 363, 
 
 367, 382, 383. 
 Boardman v. Keeler, 162, 260, 522. 
 Bobb v. Woodward, 49, 50, 203, 
 
 205, 458, 467, 477, 485, 562, 
 
 564, 565. 
 Bobo v. Bryson, 253. 
 Bodine v. Edwards, 242. 
 Bodine v. Simmons, 29, 603. 
 Bodley v. Goodrich, 400. 
 Bogan v. Finley, 306. 
 Bogard v. Gardley, 112, 120, 131, 
 
 280, 315, 316. 
 Bogert v. Haight, 406, 407, 587. 
 Boggs v. McCoy, 549. 
 Bohn v. Headley, 320. 
 Boies v. Henney, 52, 601. 
 Boils v. Boils, 505. 
 
 Boldero v. London W. L. & D. 
 
 Co., 416. 
 Bollard, Ex parte, 298. 
 Bond v. Bronson, 177. 
 Bond v. Seymour, 112, 245, 620. 
 Bond v. Swearingen, 281. 
 Bongard v. Block, 504. 
 Bonny v. Griffith, 222, 276, 277. 
 Bonser v. Miller, 300. 
 Booher v. Worrill, 35, 55, 306. 
 Boone v. Hall, 545. 
 Booth v. Bunce, 254, 475, 582. 
 Booth v. McNair, 366, 414, 418. 
 Borden v. Sumner, 333. 
 Border v. Benze, 519. 
 Borland v. Mayo, 21, 27, 32, 35, 36, 
 
 45, 47, 57, 112, 197, 199, 483, 
 
 585, 586, 588, 590, 592. 
 Borland v. Walker, 35, 36, 48, 49, 
 
 57, 112, 594, 614. 
 Born v. Shaw, 513. 
 Borst v. Corey, 304. 
 Borst v. Spelman, 292. 
 Bortrand v. Elder, 275. 
 Bostwick v. Beizer. 507, 608. 
 Bostwick v. Menck, 481, 568, 621. 
 Boswell v. Green. 225. 
 Bott v. Smith, 216, 219. 
 Botts v. Cozine, 257, 320, 325, 75. 
 Bottsford v. Beers, 543. 
 Boughslough v. Boughslough, 505. 
 Boutwell v. McClure. 576, 577. 
 Bowen v. Bramidae. 355. 
 Bowen v. Clark, f25, 351. 
 Bowen v. Hoskins, 527. 
 Bowen v. Parkhurst, 417, 538. 
 Bowery Bank Case, 395. 
 Bowie v. Free, 486. 
 Bowles v. Graves, 394, 434. 
 Bowles v. Schoenberger, 44. 
 Bowman v. Herring, 113. 
 Bowman v. Houdlette, 59. 
 Bowman v. McKleroy, 456. 
 Bowser v. Bowser, 444. 
 Boyd v. Brown, 459, 500, 585. 
 Boyd v. Dunlap, 137, 606, 617. 
 Boyd v. Hoyt, 551. 
 Boyd v. Jones, 586. 
 Boyd v. De La Montagnie, 452. 
 Boyd v. Rockport Mills, 513. 
 Boyden v. Moore, 333, 378, 581. 
 Boyle v. Rankin, 495. 
 Boylston v. Carver, 580. 
 Boynton v. Rawson, 570. 
 
TABLE OF OASES CITED. 
 
 XV11 
 
 Bozman v. Draughan, 35, 45, 57, 
 
 209, 607. 
 Brackett v. Harvey, 127, 128. 
 Brackettv. Wait, 279, 290,292, 598. 
 Brackett v. Watkins, 245. 
 Bradford v. Beyer, 473. 
 Bradford v. Tappan, 333. 
 Bradley v. Arnold, 151. 
 Bradley v. Buford, 316. 
 Bradley v. Hunter, 569. 
 Bradley v. Ragdale, 198. 
 Bradley v. Wyndham, 517. 
 Bradshaw v. Klein, 507, 544. 
 Bradway's Estate, 364, 399. 
 Brady v. Briscoe, 55, 56, 58, 59, 502. 
 Brady v. Ellison, 452. 
 Brady v. Haines, 176, 177. 
 Brahe v. Eldridge, 342. 
 Brainerd v. Dunning, 388. 
 Braley v. Byrnes, 112. 
 Branch Bank v. Broughton, 518, 
 
 520. 
 Branch Bank v. Kinsey, 594. 
 Branch Bank v. Robinson, 517. 
 Brandon v. Cunningham, 162. 
 Brandon v. Gowring, 531. 
 Brandt v. Stevenson, 55, 575. 
 Brashear v. West, 343, 349, 369, 
 
 434, 435. 
 Brawn v. Keller, 134, 145, 153. 
 Braxton v. Gaines, 154. 
 Bray v. Hussey, 44, 58. 
 Bray v. Wheeler, 253. 
 Breckenridge v. Anderson, 121, 134, 
 
 150, 483. 
 Bredin v. Bredin, 52, 57, 585. 
 Breitenbach v. Dungan, 439. 
 Brett v. Carter, 125. 
 Brett v. Catlin, 583. 
 Brevard v. Neely, 339, 347. 
 Brevard v. Sumnar, 549, 550. 
 Brewer v. Gay, 600. 
 Brewer v. Hyndman, 478. 
 Brewer v. Pitkin, 333. 
 Brewster v. Bours, 185. 
 Brewster v. Power, 241, 242, 320. 
 Brice v. Myers, 59, 273, 292, 293, 
 
 620. 
 Bridge v. Eggleston, 582. 
 Bridge v. Loeschigk, 48, 59, 201. 
 Bridgford v. Riddell, 281, 292, 293, 
 
 308, 311, 507, 566. 
 Bridges v. Hindes, 342, 437, 438. 
 Briggs v. Merrill, 455, 470. 
 Briggs v. Mitchell, 25, 307. 
 
 Briggs v. Parkman, 125. 
 
 Brigham v. Tillinghast, 366, 367, 
 
 418, 419. 
 Brinckerhoff v. Brown, 534, 547, 
 
 551. 
 Brinkerhoff v. Marvin, 232. 
 Brinks v. Heise, 51, 200. 
 Brinley v. Spring, 47, 125, 126, 128, 
 
 156, 169, 213, 594. 
 Brinton v. Hook, 214, 325. 
 Briody v. Conro, 260. 
 Briscoe v. Kennedy, 238. 
 Britt v. Aylett, 448, 485. 
 Brock v. Headon, 60, 213. 
 Brodie v. Seagrave, 263, 264. 
 Brookbank v. Kennard, 292, 553. 
 Brookover v. Hurst, 457. 
 Brooks v. Caughran, 505, 614. 
 Brooks v. D'Orville, 499. 
 Brooks v. Gibson, 570. 
 Brooks v. Marbury, 335. 
 Brooks v. Nichols, 404. 
 Brooks v. Powers, 111. 
 Brooks v. Stone, 527. 
 Brooks v. Wimer, 123, 125. 
 Brookville Nat'l Bank v. Trimble, 
 
 194, 223, 312. 
 Broome, In re, 437. 
 Broughton v. Broughton, 456. 
 Brow v. Houser, 493, 494. 
 Brown's Appeal, 516, 518. 
 Brown v. Austen, 292. 
 Brown v. Bank, 538, 543. 
 Brown v. Bartee, 594. 
 Brown v. Burrell, 335. 
 Brown v. Cavendish, 339. 
 Brown v. Chamberlain, 339, 343. 
 Brown v. Finley, 445. 
 Brown v. Poree, 174, 200, 202, 205, 
 
 206, 207, 208, 487. 
 Brown v. Gilmore, 461. 
 Brown v. Godsey, 609. 
 Brown v. Jones, 304,' 305, 308, 313. 
 Brown v. Knox, 345, 429, 431, 434, 
 
 514, 595. 
 Brown v. Lyon, 335, 336, 339, 344, 
 
 346, 404. 
 Brown v. Matthaus, 255. 
 Brown v. McDonald, 40, 49, 232, 
 
 241, 242, 252, 261, 323, 532, 
 
 542, 558, 612, 616, 617, 618. 
 Brown v. Minturn, 332. 
 Brown v. Mies, 497. 
 Brown v. Osgood, 27, 594. 
 Brown v. Pendleton, 312. 
 
XV111 
 
 TABLE OF CASES CITED. 
 
 Brown v. Piatt, 130. 
 
 Brown v. Eawlings, 223, 310. 
 
 Brown v. Eiley, 142, 176. 
 
 Brown v. Smith, 206, 207, 208, 483. 
 
 Brown v. Spivey, 292. 
 
 Brown v. Vandermeulen, 320. 
 
 Brown v. Warren, 422, 614, 615, 
 
 619. 
 Brown v. Webb, 500. 
 Browne v. Bipka, 14. 
 Brownell v. Curtis, 445, 484, 556. 
 Brownell v. Dixon, 250. 
 Browning v. Hart, 48, 121, 360, 377, 
 
 378. 
 Bruce v. Smith, 131, 184. 
 Bruggerman v. Hoerr, 502, 578. 
 Bruker v. Kelsey, 552. 
 Brummel v. Stockton, 155. 
 Brumsden v. Stratton, 302, 541. 
 Brunswick v. McClay, 114. 
 Bryan v. Brisbin, 513. 
 Bryant v. Kelton, 45, 63, 112, 118, 
 
 209. 
 Bryant v. Mansfield, 457. 
 Bryant v. Simoneau, 605. 
 Bryant v. Young, 42, 608, 609. 
 Buchanan v. Clark, 220. 
 Buchanan v. Marsh, 527. 
 Buchanan v. McMinch, 290. 
 Bucher v. Ream, 249. 
 Buck v. Gilson, 242. 
 Buck v. Sherman, 531, 603. 
 Buckley v. Wells, 250, 251. 
 Bucklin v. Bucklin, 292. 
 Buckman v. Buckman, 523. 
 Buckmaster v. Smith, 151. 
 Bucknal v. Roiston, 62, 80, 519. 
 Buckner v. Stine, 186. 
 Budd v. Atkinson, 194. 
 Buehler v. Gloninger, 445. 
 Bufflngton v. Harvey, 548. 
 Buffum v. Green, 181, 184, 186, 225, 
 
 596. 
 Buford v. Buford, 240. 
 Buie v. Kelly, 222. 
 Buist v. Smyth, 281. 
 Bulkley v. Bufflngton, 37, 52, 58. 
 Bull v. Harris, 184, 446. 
 Bull v. Loveland, 467. 
 Bullard v. Briggs, 306, 310, 596, 
 
 595. 
 Bullard V. Hinkley, 477. 
 Bullett v. Chartered Fund, 258. 
 Bullis v. Borden, 112. 
 Bullitt v. Taylor, 317, 319, 539. 
 
 Bullock v. Irvine, 184, 190. 
 Bullock v. Narrow, 51, 600. 
 Bulmer v. Hunter, 299, 300. 
 Bumpas v. Dotson, 43, 53, 56, 218. 
 Bunn v. AM, 19, 189, 191, 483, 616. 
 Bunn v. Bunn, 556. 
 Bunnell v. Witherow, 296. 
 Bunyard v. Seabrook, 201. 
 Burbank v. Hammond, 381. 
 Burbridge v. Seely, 112. 
 Burckmyers v. Mairs, 281, 526, 590. 
 Burd v. Smith, 374, 437, 440. 
 Burdick v. Gill, 319. 
 Burdick v. Post, 19, 20, 317, 353, 
 
 417. 
 Burgett v. Burgett, 459. 
 Burgert v. Borchert, 19, 27, 139, 
 
 589, 600. 
 Burgin v. Burgin, 18, 46, 60, 127, 
 
 213. 
 Burke v. Murphy, 35, 44, 58, 262, 
 
 486. 
 Burkey v. Self, 279. 
 Burleigh v. White, 603. 
 Burling v. Patterson, 114. 
 Burlock v. Taylor, 514. 
 Burnell v. Johnson, 260, 516. 
 Burnell v. Robertson, 168. 
 Burnham v. Brennan, 114, 201. 
 Burns v. Morse, 521, 543. 
 Burpee v. Bunn, 281. 
 Burr v. McDonald, 396. 
 Burrill v. Lowry, 259. 
 Burrows, Asa, In re, 125, 127. 
 Burrows v. Alter, 467. 
 Burrows v. Lehndorf, 363, 395. 
 Burrows v. Stebbins, 136, 137, 145. 
 Burrows v. Stoddard, 523. 
 Burt v. Keyes, 47, 571. 
 Burt v. McKinstry, 19, 370, 371, 
 
 372, 374, 587. ' 
 Burtch v. Elliott, 621. 
 Burtus v. Tisdall, 38, 57, 203, 230, 
 
 558, 615. 
 Bushe's Appeal, 520. 
 Buswell v. Lincke, 52, 536, 537. 
 Butcher v. Harrison, 507. 
 Butler v. J affray, 434, 608. 
 Butler v. Miller, 111. 
 Butler v. Moore, 455. 
 Butler v. O'Brien, 467, 468, 469, 
 
 473. 
 Butler v. Ricketts, 309. 
 Butler v. Roll, 112. 
 Butler v. Van Wyck, 106. 
 
TABLE OF CASES CITED. 
 
 XIX 
 
 Butler v. White, 500. 
 Butt v. Cadwell, 170, 172. 
 Butt v. Peck, 345, 388, 406, 423, 425. 
 Butterfleld v. Stanton, 309. 
 Butts v. Peacock, 43. 
 Butts v. Swartout, 98, 111, 
 Byers v. Fowler, 558, 573, 619. 
 Byrd v. Bradley, 359, 378, 396. 
 Byrd y. Curlin, 444. 
 Byrne, Oliver, In re, 259. 
 Byrne v. Becker, 197. 
 Byrod's Appeal, 477. 
 
 Cadbury v. Nolen, 27, 136, 167, 200. 
 Cadogan v. Kennett, 11, 12, 16, 31, 
 
 62, 83, 89, 122, 159, 199, 219, 
 
 269, 275, 296, 298, 300, 314. 
 Cady v. Whaling, 545. 
 Caffal v. Hale, 224. 
 Cage v. Wells, 512. 
 Oahoon v. Marshall, 143, 589. 
 Caillaud v. Estwick, 533. 
 Caldwell v. Bruggerman, 347, 348. 
 Caldwell v. Rose, 361, 378, 589. 
 Caldwell v. Williams, 359, 361, 364, 
 
 378, 488, 585, 586. 
 Calkins v.Lockwood, 173, 231, 236. 
 Call v. Gray, 131. 
 Call v. Perkins, 538. 
 Callan v. Stathan, 36, 38, 39, 44, 49, 
 
 55, 57. 
 Calland v. Estwick, 240. 
 Callen v. Thompson, 112, 117. 
 Cameron v. Montgomery, 143, 184, 
 
 378, 394, 
 Cameron v. Romille, 452. 
 Cameron v. Scudder, 395. 
 Camp v. Scott, 255. 
 Camp v. Thompson, 213, 292. 
 Campbell v. Bowles, 51, 233. 
 Campbell v. Erie E. R. Co., 459, 
 
 479, 609. 
 Campbell v. Jones, 474, 476. 
 Campbell v. Landberg, 52. 
 Campbell v. Leonard, 125. 
 Campbell v. Waters, 306. 
 Campbell v. Whitson, 446. 
 Campbell v. Woodworth, 423, 424. 
 Campion v. Cotton, 243, 296, 298, 
 
 299, 300. 
 Candee v. Lord, 13, 14, 315, 576, 
 
 577. 
 Candler v. Fisher, 462, 574. 
 Cannon v. Peebles, 380, 383, 412, 
 
 414, 418. 
 
 Canton v. Dorchester, 444, 448. 
 
 Cantrell, In re, 127. 
 
 Capron v. Porter, 146. 
 
 Carey v. Giles, 396. 
 
 Carl v. Smith, 281, 482, 504. 
 
 Carlisle v. Gaskill, 229. 
 
 Carlisle v. Rich, 270, 281, 283, 508. 
 
 Carlisle v. Tindall, 530. 
 
 Carlton v. Baldwin, 403, 408, 418. 
 
 Carlton v. King, 327. 
 
 Carnahan v. Wood, 589. 
 
 Carnall v. Duvall, 186. 
 
 Carne v. Brice, 160. 
 
 Carney v. Carney, 55, 589. 
 
 Carny v. Palmer, 199. 
 
 Carpenter v. Blote, 231. 
 
 Carpenter v. Carpenter, 228, 233, 
 
 289, 311, 317. 
 Carpenter v. Clark, 176. 
 Carpenter v. Cushman, 188. 
 Carpenter, v. Mayer, 135, 136, 173. 
 Carpenter v. McClure, 455. 
 Carpenter v. Muren, 43, 186, 197. 
 Carpenter v. Roe, 241, 290, 317, 322. 
 Carpenter v. Simmons, 125, 476. 
 Carpenter v. Underwood, 403, 416. 
 Carr v. Breese, 276, 316, 320. 
 Carr v. Burdiss, 111. 
 Carr v. Dole, 333. 
 Carr v. Fearington, 545. 
 Carr v. Gale, 580, 591, 599. 
 Carr v. Hilton, 507, 544, 554, 564, 
 
 565. 
 Carr v. Parker, 536. 
 Carroll v. Hayward, 494. 
 Carrolton Bank v. Cleveland, 589. 
 Carson v. Foley, 292. 
 Carter v. Baker, 38, 576. 
 Carter v. Bennett, 461, 462, 534, 
 
 576. 
 Carter v. Carpenter, 58. 
 Carter v. Castleberry, 476. 
 Carter v. Dickinson, 553. 
 Carter v. Graves, 112, 115. 
 Carter v. Grimshaw, 316, 317. 
 Carter v. Gunnells, 604, 605. 
 Carter v. Happell, 217, 218. 
 Carter v. ISTeal, 14. 
 Carter v. Sheriff, 518. 
 Carter v. Stanfleld, 112, 115. 
 Carter v. Watkins, 72, 76, 152, 155. 
 Cartwight v. Phcenix, 148, 166, 171, 
 
 173. 
 Carville y. Stout, 479, 609. 
 Case v. Beauregard, 258, 538. 
 
XX 
 
 TABLE OF CASES CITED. 
 
 Case v. Phelps, 316, 317, 319. 
 
 Case v. Winship, 157. 
 
 Casey v. Janes, 379, 420, 421. 
 
 Casey's Trusts, 325. 
 
 Casher v. Peterson, 519. 
 
 Caskie v. Webster, 512, 513. 
 
 Cason v. Murray, 27, 185. 
 
 Cass v. Perkins, 158, 159. 
 
 Cassell v. Williams, 482. 
 
 Castle v. Bader, 536. 
 
 Castle v. Palmer, 620. 
 
 Caston v. Ballard, 456. 
 
 Caston v. Cunningham, 281, 283, 
 
 323 
 Cator v.' Collins, 125, 191. 
 Castro v. lilies, 199, 203. 
 Caswell v. Caswell, 445, 576. 
 Caswell v. Hill, 243, 281, 589. 
 Catchings v. Manlove, 240, 281, 533, 
 
 553. 
 Catlin v..Currier. 127. 
 Catlin v. Eagle Bank, 396. 
 Cato v. Easley, 279, 508. 
 Caton v. Moseley, 345. 
 Cecil Bank v. Snively, 242. 530, 591. 
 Central B. E. Co. v. Claghom, 185, 
 
 186. 
 Chaffee v. Fourth Nat'l Bank, 513. 
 Chaffee v. Sherman, 151, 236. 
 Chaffees v. Bisk, 396. 
 Chaffln v. Doub, 165. 
 Chamberlain, In re, 403. 
 Chamberlain v. Stern, 136, 530. 
 Chamberlayne v. Temple, 290, 524, 
 
 541, 542, 549, 575, 620. 
 Chambers v. Sallie, 246, 279, 281, 
 
 621. 
 Chambers v. Spencer, 282, 290, 292. 
 Chamley v. Dunsany, 324. 
 Chancellor v. Phillips, 519. 
 Chandler v. Caldwell, 397. 
 Chandler v. Van Boeder, 510. 
 Chapin v. Pease, 224. 
 Chapman v. Callahan, 448. 
 Chapman v. O'Brien, 600. 
 Chapman v. Ransom, 614. 
 Chappell v. Clapp, 35, 36, 57, 58, 
 
 199. 
 Charlton v. Gardner, 22, 159, 277, 
 
 319, 321. 
 Charlton v. Lay, 129. 
 Chase v. Chase, 505, 582. 
 Chase v. Elkin, 253. 
 Chase v. Balston, 166, 167. 
 Chase v. Searles, 240, 533, 551, 570. 
 
 Chase v. Walker, 487. 
 Chase v. Welsh, 57. 
 Chase v. Walters, 189, 582. 
 Chautauqua Co. Bank v. Bisley, 
 
 474, 572. 
 Chautauqua Co. Bank v. White, 
 
 567. 
 Cheatham v. Hawkins, 115, 213. 
 Chenery v. Palmer, 42, 173, 483. 
 Chessman v. Exall, 444. 
 Chester v. Brown, 171. 
 Chever v. Hays, 395. 
 Chickering v. Hatch, 42. 
 Chickering v. Baymond, 462. 
 Childs v. Connor, 292. 
 Childs v. Derrick, 479, 609. 
 Chiles v. Bernard, 147, 463. 
 Chittenden v. Brewster, 538, 570. 
 Chophard v. Bayard, 128. 
 Choteau v. Jones, 445, 492, 508. 
 Choteau v. Sherman, 184, 191. 
 Chrisman v. Graham, 471. 
 Chrisman v. Roberts, 327, 620. 
 Christian v. Greenwood, 200. 
 Christopher v. Covington, 354, 412, 
 
 417, 583, 589. 
 Christopherson v. Burton, 260, 522, 
 
 523. 
 Christ's Hospital v. Budgin, 213, 
 
 241. 
 Christy v. Courtenay, 241, 270. 
 Chubb v. Stretch, 238. 
 Chumar v. Wood, 111. 
 Church v. Chapin, 218, 288, 289, 
 
 295, 576, 577, 617. 
 Church v. Church, 444. 
 Church v. Drummond, 354, 592. 
 Church v. Muir, 455. 
 Churchill v. Wells, 195, 287, 317, 
 
 319, 323, 325. 
 Cipperly v. Rhodes, 245. 
 Citizen's Bank v. Bowen, 463. 
 City Bank v. Westbury, 128. 
 City Nat'l Bank v. Hamilton, 223, 
 
 316, 317, 588. 
 Claflin v. French, 534. 
 Claflin v. McDermott, 539. 
 Claflin v. Mess, 322. 
 Claflin v. Rosenberg, 113, 139, 141. 
 Clagett v. Gibson, 505. 
 Clairborne v. Goss, 58. 
 Clap v. Smith, 345. 
 Clapp v. Ely, 232. 
 Clapp v. Bogers, 473. 
 Clapp v. Tirrell, 595. 
 
TABLE OF CASES CITED. 
 
 XXI 
 
 Clapp v. Utley, 414. 
 
 Clark v. Anthony, 575, 576, 578. 
 
 Clark v. Bailey, 543, 559, 573. 
 
 Clark v. Banner, 536. 
 
 Clark v. Brockway, 570. 
 
 Clark v. Chamberlain, 198, 242, 268. 
 
 Clark v. Depew, 37, 284, 594, 595. 
 
 Clark v. Douglass, 11, 43, 521. 
 
 Clark v. French, 59, 327. 
 
 Clark v. Fuller, 205, 418. 
 
 Clark v. Groom, 375, 377. 
 
 Clark v. Johnson, 49, 588. 
 
 Clark v. Killian, 317, 320. 
 
 Clark v. McClelland, 352. 
 
 Clark v. Mix, 344. 
 
 Clark v. Morse, 175, 176. 
 
 Clark v. Bobbins, 403, 404. 
 
 Clark v. Kosenkrans, 311, 313. 
 
 Clark v. Bowling, 466. 
 
 Clark v. Bucker, 224. 
 
 Clark v. Wentworth, 199. 
 
 Clark v. Wise, 35, 47. 
 
 Clarke v. McGiehan, 58. 
 
 Clarke v. Waite, 582. 
 
 Clarkson v. De Peyster, 535, 537, 
 
 539, 547. 
 Clarkson v. White, 191. 
 Clayborn v. Hill, 146, 156, 159, 485. 
 Clayton v. Brown, 154, 269, 282, 
 
 292, 575. 
 Clayton v. Johnson, 435. 
 Clayton v. Tucker, 524. 
 Claytor v. Anthony, 28, 111, 181, 
 
 173, 215, 581, 585, 586. 
 Claywell v. McGimpsie, 594. 
 Cleaveland v. Deming, 462. 
 Clemens v. Clemens, 453, 455. 
 Clemens v. Davis, 189. 
 Clements v. Eccles, 256, 276, 281, 
 
 291. 
 Clements v. Moore, 10, 200, 208, 
 
 556, 558, 587, 606, 609, 610, 
 
 616, 617. 
 Clerk v. Nettleship, 309. 
 Cleveland v. Bailroad Co., 191, 
 
 400, 616. 
 Clinn v. Bussell, 150. 
 Clinton Manfg. Co. v. Hummell, 
 
 233. 
 Clough v. Lambert, 305. 
 Clow v. Woods, 98, 113, 149, 152, 
 
 153, 154, 155, 157, 177, 328. 
 Clute v. Fitch, 119, 459, 463, 506. 
 Clute v. Newkirk, 122. 
 
 Clute v. Steele, 173. 
 
 Coakley v. Weil, 390. 
 
 Coale v. Mildred, 546. 
 
 Coate v. Williams, 399, 402, 421. 
 
 Coates v. Day, 549. 
 
 Coates v. Gerlach, 39, 282, 307. 
 
 Cobb v. Buswell, 514. 
 
 Cobb v. Norwood, 549. 
 
 Coburn v. Pickering, 76, 98, 113, 
 
 150, 155, 215. 
 Cochran v. McBeath, 159. 
 Cochran v. Paris, 129. 
 Cock v. Oakley, 289, 576. 
 Cocke v. Bromley, 445. 
 Cocke v. Chapman, 112. 
 Codman v. Freeman, 125, 544. 
 Codwise v. Gelston, 474, 569. 
 Coffin v. Morrill, 250, 308. 
 Cohens v. Summers, 342. 
 Cohn v. Mulford, 584, 588. 
 Coker v. Shropshire, 225. 
 Colburn v. Morton, 613, 619. 
 Colby v. Cressy, 517. 
 Cole v. Albers, 184, 231, 596. 
 Cole v. Davies, 62, 85, 162, 163. 
 Cole v. Dealman, 395. 
 Cole v. Malcolm, 621. 
 Cole v. Marple, 570, 612. 
 Cole v. Tyler, 281, 466, 567. 
 Cole v. Varner, 315, 319, 589. 
 Cole v. White, 64, 75, 77, 105, 111, 
 
 116, 117, 476, 507. 
 Coleman v. Bank, 162. 
 Coleman v. Burr, 233. 
 Coleman'.v. Cocke, 241, 242, 492, 
 
 498, 530, 534. 
 Coleman v. Freeman, 126. 
 Coleman v. Pinkhard, 547. 
 Coleman v. Smith, 186, 198. 
 Coles v. Sellers, 231. 
 Coley v. Coley, 57, 232. 
 College v. Powell, 309, 310, 581, 
 
 595, 617, 618. 
 Collins v. Brush, 76, 101, 111, 152. 
 Collins v. Burton, 534. 
 Collins v. Carlisle, 231. 
 Collins v. Cook, 197. 
 Collins v. Hood, 259. 
 Collins v. Myers, 125, 127. 
 Collins v. Taggart, 122. 
 Collins v. Wiley, 333. 
 Collomb v. Caldwell, 405, 406, 407. 
 Collumb v. Bead, 406, 407, 497, 
 
 588, 590, 608. 
 
XX11 
 
 TABLE OF CASES CITED. 
 
 Colman v. Crocker, 534. 
 
 Colquitt v. Thomas, 37, 492, 493, 
 
 595, 602. 
 Coltraine v. Causey, 445. 
 Columbine v. Penhall, 300. 
 Combs v. Watson, 554. 
 Comly v. Fisher, 171. 
 Commercial Bank v. Cunningham, 
 
 231. 
 Commonwealth v. Fletcher, 238, 
 
 248, 251, 589. 
 Commonwealth v. Richardson, 492. 
 Commonwealth v. Stremback, 519. 
 Compton v. Perry, 218, 263, 562. 
 Comstock v. Rayford, 32, 36, 53, 
 
 54, 112, 115, 547. 
 Conard v. Atlantic Insurance Co., 
 
 156, 168, 169. 
 Confer v. McNeil, 587. 
 Conger v. Sands, 570. 
 Conillard v. Duncan, 574. 
 Conkling v. Carson, 342, 405, 409, 
 
 434. 
 Conkling v. Conrad, 417, 418. 
 Conkling v. Shelley, 36, 128. 
 Connah v. Sedgwick, 375, 379. 
 Connell v. Chandler, 445. 
 Connelly v. Walker, 192. 
 Conner v. Carpenter, 455. 
 Conrad v. Shomo, 312. 
 Constantine v. Twelves, 35, 39, 125, 
 
 128, 191. 
 Converse v. Hartley, 319, 322, 325. 
 Converse v. McKee, 112. 
 Conway, Ex parte, 339, 344, 348, 
 
 349, 350, 366, 367, 374, 394, 
 
 398, 420, 427. 
 Conway v. Brown, 313. 
 Conway v. Edwards, 144, 165. 
 Cook v. Gleason, In re, 259. 
 Cook v. Hopper, 463, 574. 
 Cook v. Johnson, 279, 315, 503, 504, 
 
 506, 531, 559. 
 Cook v. Ligon, 506, 510. 
 Cook v. Miller, 463. 
 Cook v. Moore, 582. 
 Cook v. Swan, 581, 584, 592. 
 Cook v. White, 205. 
 Cook v. Wood, 517, 519. 
 Cooke v. Cooke, 504, 529, 579, 582, 
 
 583. 
 Cooke v. Smith, 48, 59, 359. 
 Cookingham v. Ferguson, 550. 
 Coole v. Braham, 595. 
 Coolidge v. Curtis, 184. 
 
 Coolidgev. Melvin, 214, 219, 325, 
 
 486. 
 Coombe v. Meade, 534. 
 Coope v. Bowles, 351. 
 Cooper v. Gunn, 548. 
 Cooper v. McClun, 394. 
 Copeland v. Weld, 333, 386. 
 Copenheaver v. Huffacker, 57, 500. 
 Copis v. Middleton, 37, 45, 56, 58, 
 
 195, 199, 209, 295. 
 Coppage v. Barnett, 446, 481. 
 Corder v. Williams, 504. 
 Cordes v. Straszer, 19, 43, 190, 585. 
 Corey v. Greene, 242, 532, 538. 
 Corgan v. Frew, 113. 
 Corlett v. Radcliffe, 38, 271, 294, 
 
 617. 
 Corlies v. Stanbridge, 519, 520. 
 Cornell v. Radway, 535, 549. 
 Cornish v. Clark, 267, 620. 
 Cornish v. Dews, 360, 361. 
 Cosby v. Ross, 240, 320, 533. 
 Costenbader v. Shuman, 459. 
 Costillo v. Thompson, 265, 279. 
 Cottle v. Tripp, 309, 310. 
 Cottrell v. Moody, 527. 
 Coulston v. Gardiner, 505. 
 Coutts v. Greenhow, 296, 299, 544. 
 Covanhovan v. Hart, 184, 186, 188, 
 
 579, 591. 
 Cowles v. Ricketts, 184. 
 Cox v. Dunham, 531. 
 Cox v. Fraley, 37, 184, 464. 
 Cox v. Jackson, 111, 446, 519. 
 Cox v. McBee, 227. 
 Cox v. McDougal, 519. 
 Cox v. Miller, 190. 
 Cox v. Piatt, 360, 376, 389, 390, 
 
 573. 
 Cox v. Shropshire, 54, 245, 246. 
 Cox v. Wilder, 481, 482. 
 Craft v. Bloom, 361, 384, 385, 403. 
 Cragin v. Carmichael, 545. 
 Craig's Appeal, 162. 
 Craig v. Gamble, 273, 281. 
 Craig v. Tappin, 231, 596. 
 Craig v. Ward, 150. 
 Cram v. Mitchell, 375, 376, 379, 
 
 583. 
 Cramer v. Blood, 482. 
 Cramer v. Reford, 232, 252, 317, 
 
 508. 
 Crane v. Deming, 231. 
 Crane v. Stickles, 219, 504. 
 Crapster v. Williams, 46. 
 
TABLE OF CASES CITED. 
 
 XX111 
 
 Crary v. Sprague, 44, 263, 581. 
 Craver v. Miller, 44, 57, 148, 470. 
 Crawford v. Austin, 189, 398. 
 Crawford v. Carper, 57, 223. 
 Crawford v. Kirksey, 37, 38, 54, 58, 
 
 112, 188, 226, 508, 570, 572, 
 
 608. 
 Crawford v. Loehr, 445. 
 Crawford v. Logan, 316, 320. 
 Crawford v. Bitter, 586. 
 Crawford v. Spuing, 527. 
 Cray v. Rooke, 226. 
 Creagh v. Savage, 120, 591. 
 Credle v. Carrawan, 228, 596. 
 Creed v. Lancaster Bank, 277, 324. 
 Cresswell & Coke's Case, 556. 
 Cresswell v. McCaig, 223. 
 Criley v. Vasel, 143, 146. 
 Crippen v. Hudson, 537, 539. 
 Crisp v. Pratt, 22. 
 Crockett v. Maguire, 498. 
 Croft v. Arthur, 241, 296, 298, 300, 
 
 302, 476, 557, 612, 619. 
 Crooker v. Holmes, 459. 
 Crompton v. Anthony, 534. 
 Crooks v. Stewart, 125. 
 Crooks v. Stuart, 544. 
 Cropsey v. McKinney, 252, 305, 
 
 534. 
 Crosby v. DeGraffenreid, 445. 
 Crosby v. Hillyer, 347. 
 Cross v. Bryant, 388, 394, 407. 
 Cross v. Glode, 161. 
 Crossley v. Ellworthy, 276, 283, 
 
 284, 290. 
 Crouch v. Carrier, 113, 154. 
 Crow v. Beardsley, 19, 330, 361, 
 
 396. 
 Crow v. Red River Co. Bank, 128. 
 Crow v. Ruby, 344, 583, 595. 
 Crowningshield v. Kittredge, 191, 
 
 482. 
 Crozier v. Young, 240, 241, 533. 
 Cruikshank v. Cogswell, 173, 174. 
 Crumbaugh v. Kugler, 276, 287, 
 
 295, 319, 617. 
 Crummen v. Bennett, 245, 620. 
 Crunkleton v. Wilson, 524. 
 Crutchfleld v. Hudson, 466, 468, 
 
 472. 
 Cubbedge v. Adams, 527, 534. 
 Culbertson v. Luckey, 559. 
 Cumberland Bank v. Hann, 518, 
 
 519, 520. 
 
 Cumming v. Fryer, 261, 590. 
 Cummings v. McCullough, 346, 363, 
 
 378, 379, 492, 558, 570, 583, 
 
 608. 
 Cummins v. Griggs, 165, 167. 
 Cunningham v. Dwyer, 221, 595, 
 
 596, 597. 
 Cunningham v. Freeborn, 183, 332, 
 
 334, 343, 348, 386, 393, 416, 
 
 559, 573. 
 Cunningham v. Hamilton, 155, 177. 
 Cunningham v. Neville, 134, 189. 
 Curd v. Lewis, 117, 119, 504. 
 Cureton v. Doby, 193, 218. 
 Currie v. Hart, 121, 375, 401, 589. 
 Currier v. Ford, 463. 
 Currier v. Taylor, 197. 
 Curry v. Ellerbe, 154. 
 Curry v. Glass, 537. 
 Curtis v. Fox, 320. 
 Curtis v. Leavitt, 29, 210, 211, 213, 
 
 254, 325, 404. 
 Curtis v. Moore, 579, 583, 593, 600. 
 Curtis v. Price, 322. 
 Curtis v. Riddle, 492. 
 Cushwa v. Cushwa, 444, 456, 458. 
 Cutler v. Dickinson, 42. 
 Cutter v. Copeland, 113, 119, 120. 
 Cutter v. Griswold, 241, 242, 292, 
 
 530. 
 Cutter v. Tuttle, 448. 
 Cutting v. Jackson, 134. 
 Cutting v. Pike, 489. 
 Cuyler v. McCartney, 360, 581, 
 
 584, 585, 586, 588, 593. 
 Cuyler v. Moreland, 536, 539. 
 
 Daggett v. Adams, 462. 
 Dale v. Arnold, 113. 
 Dale v. Harrison, 444. 
 Dallam v. Fitler, 161, 378. 
 Dallam v. Renshaw, 218, 591, 603. 
 Dalton v. Currier, 192, 355. 
 Dalton v. Mitchell, 53, 57. 
 Dambmann v. Butler, 591. 
 Dameron v. Williams, 463, 477. 
 Damon v. Bryant, 327, 459, 463, 
 
 477 505. 
 Dana v! Bank of U. S., 181, 380, 
 
 396, 404, 409. 
 Dana v. Haskell, 536. 
 Dana v. Lull, 344, 351, 364, 405, 
 
 488. 
 Dana v. Stanfords, 188. 
 
XXIV 
 
 TABLE OF CASES CITED. 
 
 Danbury v. Robinson, 492. 
 Dance V. Seaman, 180, 369, 402, 
 
 404, 412. 
 Daney v. Hubbis, 520. 
 Danforth v. Beattie, 245, 620. 
 Danforth v. Woods, 160. 
 Daniel v. Morrison, 146, 485. 
 Daniiels v. Fitch, 456. 
 Daniels v. Willard, 514. 
 Danjean v. Blackster, 51, 53, 484. 
 Danley v. Rector, 117, 154, 232, 
 
 252. 
 Dannan v. Coleman, 281, 286. 
 Danzey v. Smith, 444, 495. 
 Darden v. Skinner, 36, 39, 44, 49. 
 Dardenne v. Hardwicke, 29, 35. 
 Dargan v. Waring, 535, 572. 
 Darling v. Hurst, 600, 603. 
 Darling v. Rogers, 366, 421. 
 Dart v. Farmers' Bank, 197, 230. 
 Dart v. Stewart, 327. 
 Dart v. Woodhouse, 245. 
 Darville v. Terry, 21, 187. 
 Darwin v. Handley, 48, 112, 487. 
 Davenport v. Cummings, 19, 43, 
 
 579. 
 Davenport v. Kelley, 572. 
 Davenport v. Wright, 43, 486, 580. 
 David v. Birckhead, 259. 
 David v. Richard, 191. 
 Davidson v. Lanier, 320. 
 Davidson v. Waldron, 520. 
 Davis v. Bruns, 539. 
 Davis v. Charles, 186. 
 Davis v. Evans, 60. 
 Davis v. Gibbon, 58, 501, 609. 
 Davis v. Graves, 224. 
 Davis v. Herrick, 283. 
 Davis v. Lumpkin, 474. 
 Davis v. McKinney, 222, 242, 279, 
 
 530. 
 Davis v. Mitchell, 455. 
 Davis v. Ransom, 46, 47, 128, 462. 
 Davis v. Stern, 327, 582. 
 Davis v. Tibbetts, 197, 242, 530. 
 Davis v. Turner, 11, 14, 63, 64, 66, 
 
 67, 68, 69, 70, 71, 110, 111, 
 
 115, 116, 120. 
 Dawes v. Cope, 62, 168. 
 Dawson v. Figueiro, 395. 
 Dawson v. Wood, 150. 
 Day v. Cole, 45. 
 Day v. Cooley, 327. 
 Day v. Washburn, 534, 570. 
 Day v. Wetherby, 230, 550. 
 
 De Bardleben v. Beekman, 112, 
 
 174, 487. 
 De Camp v. Marshall, 346. 
 De Chyrton's Case, 241. 
 De Forest v. Bacon, 394, 416. 
 DTvemois v. Leavitt, 342, 417, 
 
 419, 511. 
 De Ruyter v. St. Peter's Church, 
 
 352. 
 De Witt v. Van Sickle, 201, 202, 
 
 493, 501. 
 De Wolf v. Harris, 118, 156, 158, 
 
 174, 231, 487. 
 Deakers v. Temple, 583, 589. 
 Dean v. Bailey, 250. 
 Dean v. Skinner, 217. 
 Dearing v. Watkins, 158. 
 Dearman v. Dearman, 452. 
 Dearman v. Radcliffe, 444, 457, 
 
 484. 
 Deatly v. Murphy, 449. 
 Deaver v. Savage, 344, 394. 
 Deckard v. Case, 351, 379. 
 Delashmut v. Frau, 246. 
 Delaware v. Ensign, 35, 36, 39, 45, 
 
 127, 591. 
 Delesdernier v. Mowry, 477. 
 Demaree v. Driskell, 242, 532. 
 Demarest v. Terhune, 57. 
 Demeritt v. Miles, 456, 592. 
 Denie v. Hart, 333. 
 Denison v. Tatersall, 282. 
 Dennison v. Ely, 445. 
 Densler v. Edwards, 524, 525. 
 Densmore v. Tomer, 112. 
 Deposit Bank v. Berry, 520. 
 Derby v. Gallup, 32, 587, 592. 
 Derby v. Wevrich, 246. 
 Derry Bank v. Davis, 369, 466. 
 Des Brisay v. Hogan, 538. 
 Desha v. Scales, 120. 
 Deubell v. Fisher, 304. 
 Deutsch v. Kossmeier, 554. 
 Devoll v. Brownell, 556. 
 Devon v. Watts, 199. 
 Devries v. Phillips, 54, 191. 
 Dewart v. Clement, 136. 
 Dewey v. Adams, 378. 
 Dewey v. Bayntun, 215. 
 Dewey v. Littlejohn, 47, 49, 57, 60, 
 
 99, 129, 225, 226, 401, 558. 
 Dewey v. Long, 241, 242, 279, 530. 
 Dewey v. Moyer, 327, 555. 
 Dewey v. Thrall, 177. 
 Dexter v. Parkins, 113. 
 
TABLE OF CASES CITED. 
 
 XXV 
 
 Dick v. Cooper, 236, 263, 265. 
 Dick v. Grissom, 37, 49, 50, 51, 58, 
 
 59, 232, 252, 253, 558. 
 Dick v. Hamilton, 243, 250, 251, 
 
 278, 292, 307, 310, 316, 556. 
 Dick v. Lindsay, 162. 
 Dickenson v. Cook, 48, 164. 
 Dickerson v. Benhani, 397. 
 Dickinson v. Way, 486, 616. 
 Dickson v. Miller, 238. 
 Dickson v. Rawson, 395, 396, 405. 
 Diefendorf v. Oliver, 197. 
 Dietrich v. Koch, 455. 
 Dietus v. Fuss, 276, 279. 
 Diffenderfer v. Fisher, 246. 
 Dillard, In re, 482. 
 Dillard v. Dillard, 279. 
 Dimon v. Delmonico, 386, 387. 
 Dimon v. Hazard, 258. 
 Dingley v. Robinson, 466, 468. 
 Divine v. Steele, 243. 
 Divver v. McLaughlin, 26, 40, 76, 
 
 111, 125, 152, 231, 487. 
 Dixon v. Hill, 494, 505. 
 Doak v. Brubacker, 113, 156, 171. 
 Doak v. Rungan, 281. 
 Doane v. Eddy, 72, 102, 111, 152, 
 
 154, 156, 157, 164. 
 Dobson v. Erwin, 261, 262, 531, 
 
 562, 563. 
 Dobson v. Kerr, 379. 
 Dockray v. Dockray, 435, 437. 
 Dockray v. Mason, 242, 493, 532, 
 
 549. 
 Dodd v. Adams, 479. 
 Dodd v. Hills, 403. 
 Dodd v. Levy, 542. 
 -Dodd v. McCraw, 26, 30, 119, 154, 
 
 292, 563. 
 Dodge v. Griswold, 531, 536. 
 Doe v. Hurd, 595. 
 Doe v. Routledge, 30, 269, 274, 298. 
 Doe v. Scribner, 435, 439. 
 Dohoney v. Dohoney, 616. 
 Dold v. Geizer, 308. 
 Dolin v. Gardner, 595. 
 Donaldson v. Johnson, 589. 
 Donley v. McKiernan, 576. 
 Donnebaum v. Tinsley, 281. 
 Donnell v. Byern, 487. 
 Donnelly v. West, 545. 
 Donovan v. Dunning, 218, 551. 
 Doolittle v. Bridgeman, 241. 
 Doolittle v. Lyman, 446. 
 Doremus v. Lewis, 369, 405. 
 
 Doremus v. O'Hara, 395. 
 Dorn v. Bayer, 54, 55. 
 Dorsey v. Smithson, 445, 461, 524. 
 Dortie v. Dugas, 527. 
 Doswell v. Adler, 42. 
 Doty v. Turner, 519, 520. 
 Dougherty's Estate, 522. 
 Doughten v. Gray, 44, 240, 606, 617. 
 Doughty v. King, 281. 
 Douglass v. Dunlap, 446, 476. 
 Dow v. Platner, 403, 419, 420. 
 Downer v. Powell, 568. 
 Downing v. Kelly, 48. 
 Downs v. Kissam, 46. 
 Doyle v. Sleeper, 241, 275, 321. 
 Doyle v. Smith, 125, 231. 
 Drake v. Rice, 240. 
 Drake v. Rogers, 337, 352, 434. 
 Drakeley v. Deforrest, 344. 
 Draper v. Draper, 55, 505. 
 Dresher v. Corson, 35, 306. 
 Dreutzer v. Bell, 245, 246. 
 Dreyer v. Durand, 235. 
 Driesbach v. Becker, 395. 
 Driggs v. Russell, 250. 
 Drinkwater v. Drinkwater, 445. 
 Drum v. Painter, 208, 220. 
 Drummond v. Couse, 603. 
 Drury v. Cross, 190, 606, 613, 616. 
 Duberry v. Clifton, 534. 
 Dubeter v. Swartwood, 114. 
 Dubose v. Dubose, 60, 213, 331, 
 
 338. 
 Dubose v. Young, 574. 
 Dudley v. Danforth, 198. 
 Duelly v. Van Houghton, 199. 
 Duffin v. Furnebs, 239, 240, 533. 
 Duffy v. Insurance Company, 306, 
 
 309. 
 Dugan v. Frisler, 505. 
 Dugan v. Massey, 481. 
 Dugan v. Vattier, 493. 
 Duhme v. Young, 292. 
 Dulany v. Green, 281. 
 Dunaway v. Robertson, 19, 448. 
 Dunbar v. McFall, 445, 446. 
 Duncan v. Forsyth, 261, 263. 
 Duncan v. Rosselle, 252. 
 Dundas v. Bowler, 396, 512. 
 Dundas v. Dutens, 224, 239, 240, 
 
 303, 533. 
 Dunham v. Cox, 552. 
 Dunham v. Waterman, 343, 353, 
 
 363, 411, 416. 
 Dunham v. Whitehead, 213, 405. 
 
XXVI 
 
 TABLE OF OASES CITED. 
 
 Dunlap v. Boumonville, 56, 141, 
 
 166. 
 Dunlap v. Hawkins, 292. 
 Dunlap v. Haynes, 37, 45, 52, 54, 58, 
 
 203. 
 Dunlevy v. Tallmadge, 535. 
 Dunning v. Mead, 125. 
 Dupree v. Harrington, 151. 
 Duress v. Horneffer, 313. 
 Durfee v. Pavitt, 197. 
 Durkee v. Chambers, 201, 583. 
 Durkee v. Mahoney, 27, 36, 50, 113, 
 
 209. 
 Duryee v. Botsford, 462. 
 Dutcher v. Swartwood, 130. 
 Dutertre v. Driart, 519. 
 Duvall v. Raisin, 332, 344, 386. 
 Duvall v. Rollins, 481. 
 Duvall v. Waters, 36, 49, 50, 52, 55, 
 
 58, 476. 
 Dwight v. Brown, 574, 595. 
 Dwinel v. Perley, 478. 
 Dyer v. Homer, 455. 
 Dyer v. Rosenthal, 191. 
 Dygert v. Remerschneider, 223, 267, 
 
 303, 306. 
 
 Eagan v. Downing, 283. 
 Eagle v. Eichelberger, 113. 
 Earl's Appeal, 519, 520. 
 Earl v. Champion, 313. 
 Earle v. Thomas, 112. 
 Easley v. Dye, 575. 
 East India Co. v. Clavell, 498, 507. 
 Eastman v. McAlpin, 395, 558. 
 Eastman v. Schettler, 474, 476. 
 Eastwood v. Brown, 96, 111. 
 Eaton v. Campbell, 483. 
 Eaton v. Cooper, 462, 585. 
 Eaton v. Patterson, 184. 
 Eaton v. Perry, 18, 213, 220. 
 Eaton v. White, 463. 
 Eberle v. Mayer, 519. 
 Ecker v. Lafferty, 509. 
 Eckfeldt v. Frick, 141, 142. 
 Eddins v. Wilson, 446. 
 Eddy v. Baldwin, 286. 
 Ede v. Knowles, 324. 
 Edgar v. Clevenger, 534, 543. 
 Edgell v. Bennett, 587. 
 Edgell v. Hart, 123, 125. 
 Edgell v. Lowell, 203. 
 Edginton v. Williams, 558. 
 Edmeston v. Lyde, 546, 547, 549, 
 571. 
 
 Edmondson v. Hyde, 621. . 
 Edmonson v. Meacham, 482. 
 Edmunds v. Mister, 288, 543, 577. 
 Edrington v. Rogers, 191, 199. 
 Edwards v. Coleman, 545. 
 Edwards v. Currier, 30, 593. 
 Edwards v. Harben, 62, 91, 96, 111, 
 
 174, 524. 
 Edwards v. Haverstock, 444. 
 Edwards v. McGee, 502. 
 Edwards v. Mitchell, 333, 335, 394, 
 
 434. 
 Edwards v. Stinson, 217. 
 Eeley v. Faith, 313. 
 Egbert v. Woods, 352. 
 Egery v. Johnson, 219. 
 Ehrisman v. Roberts, 22. 
 Eicks v. Copeland, 125, 360, 369, 
 
 417, 419. 
 Eigleberger v. Kibler, 290, 320, 610, 
 
 543, 564. 
 Eldred, In re, 250. 
 Elfelt v. Hinch, 292. 
 Elias v. Parley, 401. 
 Ellinger v. Crowl, 276, 277, 292, 
 
 310, 598. 
 Ellington v. Currie, 448. 
 Elliott's Appeal, 239, 612. 
 Elliott v. Bently, 232. 
 Elliott v. Horn, 446. 
 Elliott v. Stevens, 230. 
 Elliott v. Stoddard, 581, 600. 
 Ellis v. Higgins, 456. 
 Ellis v. McBride, 446. 
 Elmer v. Welch, 143. 
 Elmes v. Sutherland, 48, 129, 331, 
 
 337, 338, 339. 
 Elwell v.' Walker, 289, 291, 292. 
 Ely v. Carnley, 60. 
 Ely v. Cook, 371, 373, 407. 
 Ely v. Hair, 345, 352, 404, 405, 414. 
 Embry v. Clapp, 394. 
 Embry v. Klemm, 53, 57. 
 Emerick v. Harlan, 394. 
 Emerson v. Bemis, 286. 
 Emerson v. Knower, 344. 
 Emery v. Vinall, 273, 509. 
 Emmons v. Bradley, 42. 
 Empringham v. Short, 505. 
 Enders v. Swayne, 25, 35, 37, 43, 
 
 51, 52, 55, 57, 560. 
 Enders v. Williams, 154, 279. 
 England v. Insurance Co., 141. 
 England v. Reynolds, 335, 344, 345, 
 
 417. 
 
TABLE OF CASES CITED. 
 
 XXVU 
 
 Englebert v. Blanjot, 484, 544. 
 Eugles v. Marshall, 135. 
 English v. King, 52, 53, 57. 
 Engraham v. Pate, 590. 
 .Ensworth v. King, 187, 521. 
 Epperson v. Young, 456. 
 Eppes v. Randolph, 15, 16, 273, 296. 
 Erb v. Cole, 245. 
 Erdhouse v. Hickenlooper, 202. 
 Erfort v. Consalus, 550, 590. 
 Erickson v. Quinn, 554, 564, 565, 
 
 572, 573. 
 Erskine v. Decker, 492. 
 Eskridge v. Abrahams, 205. 
 Eslow v. Mitchell, 461. 
 Estate of Donnelly, 308. 
 Esterbrook v. Messersmith, 484, 488. 
 Estes & Carter, In re, 474. 
 Estes v. Wilson, 541. 
 Estwick v. Caillaud, 393, 399, 405. 
 Esty v. Aldrich, 235. 
 Esty v. Long, 464, 576, 577. 
 Eubanks v. Dobbs, 445. 
 Evans v. Chapin, 346. 
 Evans v. Dunkelberger, 511. 
 Evans v. Hamilton, 554. 
 Evans v. Herring, 463. 
 Evans v. Hill, 541. 
 Evans v. Jones, 393. 
 Evans v. Lamar, 338. 
 Evans v. Lewis, 320, 508. 
 Evans v. Matson, 583. 
 Evans v*. Nealis, 197, 499. 
 Evans v. Scott, 1 54. 
 Eveleigh v. Purrsford, 30, 40, 53, 
 
 96, 111, 120, 121, 184, 215. 
 Everett v. Bead, 255, 281, 445. 
 Everett v. Walcott, 333. 
 Every v. Edgerton, 178, 594. 
 Ewing v. Cantrell, 243. 
 Ewing v. Cargill, 48. 121, 492. 
 Ewing v. Gray, 22, 254, 261, 262. 
 Ewing v. Patterson, 554. 
 Ewing v. Runkle, 22, 185, 197. 
 Exton v. Scott, 187. 
 Eyre v. Beebe, 355, 367, 380, 391, 
 
 392, 421, 423, 424, 563. 
 Eyre v. Eyre, 448. 
 Eyrick v. Hetrick, 461. 
 Ezekiel v. Dixon, 395. 
 
 Fairbanks v. Benjamin, 509. 
 Fairbanks v. Blackington, 459. 
 Fairbanks v. Bloomfleld, 156, 511, 
 512. 
 
 Fairchild v. Gwynne, 346. 
 Fairchild v. Hunt, 394, 401. 
 Fairfield v. Baldwin, 486, 523. 
 Falconer v. Freeman, 536. 
 Falconer v. Jones, 522. 
 Fales v. Thompson, 507. 
 Falkner v. Perkins, 111. 
 Fall River Iron Works v. Croade, 
 
 513. 
 Fanshawe v. Lane, 388, 395. 
 Fargo v. Ladd, 457, 458. 
 Farringer v. Ramsay, 594, 603. 
 Farmer v. Calvert, 57, 600. 
 Farmers' Bank v. Cowan, 128. 
 Farmers' Bank v. Douglas, 35, 47, 
 
 48, 57, 125, 129, 200, 202, 208, 
 
 495, 582. 
 Farmers' Bank v. Long, 307, 311, 
 
 318, 606. 
 Farmers' Nat'l Bank v. Teeter, 499. 
 Famed v. Harris, 539. 
 Farnsworth v. Bell, 49, 52, 58, 494, 
 
 504, 508, 589. 
 Farnsworth v. Shepard, 175. 
 Farnsworth v. Straster, 539. 
 Farquharson v. Eichelberger, 348, 
 
 414, 417, 438. 
 Farquharson v. McDonald, 334, 338, 
 
 404, 407, 409, 412. 
 Farr v. Brackett, 394. 
 Farrin v. Crawford, 403. 
 Farringer v. Ramsay, 241, 277. 
 Farrington v. Caswell, 71, 121, 164. 
 Farrington v. Sinclair, 519, 522. 
 Farrow v. Hayes, 365. 
 Farrow v. Teackle, 241. 
 Fassett v. Phillips, 439. 
 Fast v. McPherson, 458. 
 Faulkner v. Waters, 236. 
 Faunce v. Lesley, 214. 
 Feagan v. Cureton, 574, 575, 577. 
 Fearn v. Ward, 504. 
 Feers v. Lyon, 376. 
 Feigley v. Feigley, 45, 503, 505, 559. 
 Feimester v. McRorie, 334, 594. 
 Felder v. Harper, 597. 
 Fell, Ex parte, 258. 
 Feller v. Alden, 250, 251. 
 Fellows v. Commercial Bank, 400, 
 
 511. 
 Fellows v. Emperor, 229, 596. 
 Fellows v. Fellows, 551. 
 Fellows v. Greenleaf, 333, 335, 336. 
 Fellows v. Lewis, 217, 530, 621. 
 Fellows v. Smith, 281. 
 
XXV111 
 
 TABLE OF CASES CITED. 
 
 Felton v. Wadsworth, 43, 486. 
 Felton v. White, 57. 
 Fenton v. Ham, 455. 
 Ferguson v. Bobo, 534. 
 Ferguson v. Clifford, 513, 515, 594. 
 Ferguson v. Furnace Co., 225. 
 Ferguson v. Gilbert, 595. 
 Ferguson v. Kumler, 185, 245, 576, 
 
 577. 
 Ferris v. Irons, 200, 579. 
 Ferson v. Monroe, 230. 
 Fetrow v. Merriwether, 458. 
 Fetter v. Cirode, 41, 511, 545. 
 Feurt v. Powell, 60, 158. 
 Fiedler v. Day, 384, 486, 559, 572. 
 Field v. Chapman, 539. 
 Field v. Liverman, 517. 
 Field v. Simcoe, 112. 
 Fields v. Sands, 570. 
 Fifleld v. Gaston, 197, 600, 603, 604. 
 Filley v. Register, 270, 292, 599, 601. 
 Findley v. Cooley, 455. 
 Finlay v. Dickerson, 407, 409, 414, 
 
 422, 423. 
 Finley v. McConnell, 459. 
 First Nat'l Bank y. Anderson, 130. 
 First Nat'l Bank v. Bertschy, 223, 
 
 228, 271, 617. 
 First Nat'l Bank v. Dwelley, 223. 
 First Nat'l Bank v. Hughes, 342, 
 
 415, 511. 
 First Nat'l Bank v. Irons, 197. 
 Fishburne v. Kunhardt, 120, 476, 
 
 513. 
 Fishel v. Ireland, 38, 200. 
 Fisher's Appeal, 477. 
 Fisher v. Dinwiddie, 393. 
 Fisher v. Hall, 201. 
 Fisher v. Henderson, 218. 
 Fisher v. Lewis, 317, 569. 
 Fisher v. Shelver, 45, 306. 
 Fisher v. True, 583, 593, 599. 
 Fiske v. Carr, 333, 467. 
 Fister v. Beall, 131. 
 Fitch v. Burk, 165, 167. 
 Fitter v. Maitland, 161, 378, 379. 
 Fitzer v. Fitzer, 305. 
 Fitzgerald v. Forrestal, 456. 
 Fitzgerald v. Gorham, 113, 134. 
 Fitzhugh v. Anderson, 236. 
 Fitzpatrick v. Brobridge, 252. 
 Flack v. Charron, 259. 
 Flagg v. Willington, 585. 
 Flanagan v. Wood, 140, 143, 144, 
 
 172. 
 
 Flanders v. Jones, 478. 
 
 Flanigan v. Lampman, 361, 378, 
 
 591. 
 Fleischer v. Dignon, 58, 228. 
 Fleming v. Grafton, 493, 499, 534, 
 
 537. 
 Fleming v. Hiorb, 35, 58. 
 Fletcher v. Fletcher, 448, 451, 452. 
 Fletcher v. Pillsbury, 237. 
 Fletcher v. Sidley, 240, 241. 
 Fletcher v. Willard, 42, 111. 
 Flewellen v. Crane, 553. 
 Flick v. Devries, 313. 
 Fling v. Goodall, 225. 
 Flint v. Clinton Co., 348, 350, 423. 
 Flood v. Prettyman, 25. 
 Florence S. M. Co. v. Zeigler, 198, 
 
 203. 
 Flower v. Cornish, 484. 
 Floyd v. Goodwin, 53, 120, 162, 184, 
 
 187, 260, 486, 600. 
 Floyd v. Smith, 395, 396, 405. 
 Fluharty v. Beatty, 442. 
 Flynn v. Williams, 327, 480. 
 Foley v. Bitter, 361, 403, 439. 
 Foley v. Foley, 43. 
 Foley v. Knight, 112. 
 Folsom v. Clemence, 40. 
 Fonda v. Gross, 71, 121. 
 Fones v. Rice, 281, 498. 
 Foote v. Cobb, 280, 504, 587. 
 Forbes, Wm. D., In re, 128, 130. 
 Forbes v. Logan, 378, 536, 593. 
 'Forbes v. Marsh, 235. 
 Forbes v. Seaanell, 335, 339, 343, 
 
 344, 346, 348. 351, 352, 379, 514. 
 Forbes v. Waller, 538, 591, 593. 
 Forbush v. Williams, 229. 
 Ford v. Aiken, 236. 
 Ford v. Caldwell, 214, 325. 
 Ford v. Chambers, 166, 605. 
 Ford v. Harrington, 450. 
 Ford v. Johnston, 38, 508, 617, 621. 
 Ford v. Williams, 46, 128, 184, 188, 
 
 189, 194, 200, 205, 207, 583, 589. 
 Fordy v. Exempt Fire Co., 445. 
 Forkner v. Stewart, 111. 
 Forrest v. Camp, 263, 493. 
 Forsyth v. Matthews, 35, 38, 53, 
 
 57, 137. 
 Foster, Wm. A., In re, 127. 
 Foster v. Grigsby, 57, 191, 202, 615. 
 Foster v. Hall, 582, 594, 600. 
 Foster v. Libby, 403. 
 Foster v. McGregor, 146, 245, 621. 
 
TABLE OF CASES CITED. 
 
 XXIX 
 
 Foster v. Pugh, 45, 121, 174. 
 
 Foster v. Reynolds, 231. 
 
 Foster v. Saco Manufacturing Co., 
 
 130, 333, 416. 
 Foster v. Thompson, 599. 
 Foster v. Wallace, 113, 524, 574, 
 
 587. 
 Foster v. Walton, 446. 
 Foster v. Woodfln, 43, 58, 589. 
 Fougeres v. Zacharie, 53. 
 Fouke v. Fleming, 330, 331. 
 Foulk v. McFarlane, 263, 265, 466, 
 
 472. 
 Fowler v. Frisbie, 504, 508. 
 Fowler v. Lee, 459. 
 Fowler v. McCartney, 581. 
 Fowler v. Stoneum, 446. 
 Fox v. Adams, 440, 513. 
 Fox v. Heath, 352, 391. 
 Fox v. Hills, 11, 504. 
 Fox v. Moyer, 267, 536, 548. 
 Fox v. Wallace, 560. 
 Fox v. Willis, 464. 
 Frakes v. Brown, 505, 546. 
 Francis v. Hertz, 434. 
 Francis v. Rankin, 185. 
 Frank's Appeal, 296. 
 Frank v. Kessler, 292. 
 Frank v. Levie,14. 
 Frank v. Peters, 14, 197, 259. 
 Frank v. Welch, 184. 
 Frankhouser v. Ellett, 129, 131. 
 Franklin v. Claflin, 215. 
 Franklin v. Stagg, 448. 
 Frasier v. Frasier, 521. 
 Frazer v. Thatcher, 188. 
 Frazer v. Thompson, 296, 299. 
 Frazer v. Western, 495, 540, 541. 
 Frazier v. Fredericks, 348, 512. 
 Freeburger's Appeal, 517, 518. 
 Freeland v. Freeland, 478. 
 Freelander v. Holloman, 545. 
 Freelove v. Cole, 450. 
 Freeman v. Burnham, 23, 255, 271, 
 
 282, 322, 445, 621. 
 Freeman v. Pope, 23, 239, 270, 
 
 271, 272, 291, 234. 
 Freeman v. Rawson, 127. 
 Freeman v. Sedgwick, 444, 448. 
 French v. Briedelman, 479, 609. 
 French v. French, 271, 282, 289, 
 
 470, 489. 
 French v. Hall, 176, 511. 
 French v. Holmes, 279, 294, 509. 
 French v. Lovejoy, 352, 389, 391. 
 
 French v. Mehan, 465. 
 French v. Motley, 186, 223. 
 Frenzel v. Miller, 459. 
 Friedenwald v. Mullan, 492, 557. 
 Frink v. Buss, 369, 374. 
 Frisbey v. Thayer, 462. 
 Fromme v. Jones, 184. 
 Frost v. Goddard, 464. 
 Frost v. Mott, 58, 60, 462. 
 Frost v. Warren, 43, 127. 
 Frost v. Willard, 236. 
 Frow v. Smith, 331. 
 Fryer v. Bryan, 486, 615. 
 Fuller v. Acker, 28, 111. 
 Fuller v. Brewster. 37, 45, 122. 
 Fuller v. Bean, 502. 
 Fuller v. Ives, 359'. 
 Fuller v. Sears, 113, 204, 464. 
 Fullerton v. Viall, 582, 609. 
 Fulmore v. Burrows, 55, 112. 
 Fulton v. Fulton, 292. 
 Fulton v. Woodman, 26, 556. 
 Funk v. Staats, 145, 148, 187. 
 Furman v. Fisher, 335, 339. 
 Furness v. Ewing, 468, 469. 
 Fury v. Kempin, 492. 
 Furze v. Strohecker, 479. 
 
 Gable v. Williams, 342. 
 
 Gabler v. Boyd, 495. 
 
 Gadsden v. Carson, 391, 436. 
 
 Gaffney v. Signaigo, 41. 
 
 Gage v. Gage, 448. 
 
 Gage v. Dauchy, 250, 251. 
 
 Gaither v. Mumford, 39, 41, 111, 
 
 150, 158. 
 Galbraith v. Cook, 209, 300, 596. 
 Gale v. Mensing, 335, 336. 
 Gale v. Williamson, 269, 275, 281, 
 
 598. 
 Gallego v. Gallego, 308. 
 Gallman v. Perrie, 223, 546. 
 Galloway v. People's Bank, 184, 
 
 213 553. 
 Gait v.'Dibr'ell, 28, 60, 339, 399, 
 
 484. 
 Gait v. Jackson, 448. 
 Gamber v. Gamber, 313. 
 Gamble v. Johnson, 198, 268, 560, 
 
 574, 581, 587. 
 Gannardv. Eslava, 280, 504, 507, 
 
 547. 
 Gans v. Renshaw, 191. 
 Garahay v. Bayley, 202. 
 Garbutt v. Smith, 479. 
 
XXX 
 
 TABLE OF CASES CITED. 
 
 Gardenier v. Tubbs, 71, 120, 121, 
 
 173. 
 Gardiner Bank v. Hogdon, 50. 
 Gardiner Bank v. Wheaton, 25, 44, 
 
 240, 241, 532, 617, 618. 
 Gardiner v. Otis, 57, 199. 
 Gardiner v. Sherrod, 528. 
 Gardner v. Adams, 102, 111, 154. 
 Gardner v. Baker, 281, 510. 
 Garden v. Bodwing, 125. 
 Gardner v. Broussard, 52. 
 Gardner v. Commercial Bank, 371, 
 
 415, 511. 
 Gardner v. Howland, 168. 
 Gardner v. Johnston, 129. 
 Gardner v. McEwen, 36, 126, 127. 
 Gardner v. Painter, 304. 
 Gardner v. Stell, 459. 
 Gardner v. Webber, 231. 
 Gardner National Bank v. Hagar, 
 
 190. 
 Garfield v. Hatmaker, 242, 530. 
 Garland v. Chambers, 121. 
 Garland v. Rives, 35, 37, 58, 192, 
 
 194, 263, 493, 575, 576, 577, 
 
 606, 615. 
 Garman v. Gooper, 149. 
 Garner v. Frederick, 369, 403. 
 Garner v. Graves, 445, 588. 
 Garnons v. Knight, 574. 
 Garr v. Hill, 187. 
 Garretson v. Brown, 546. 
 Garretson v. Kane, 18, 226, 254. 
 Garrett v. Hughlett, 131.. 
 Garrett v. Rhame, 162, 242, 530. 
 Garrigues v. Harris, 575, 579. 
 Garrison v. Brice, 446. 
 Garrison v. Monaghan, 238. 
 Garrity v. Haynes, 223. 
 Gary v. Colgan, 184, 488. 
 Gasherie v. Apple, 397. 
 Gasper v. Bennett, 543. 
 Gassett v. Grout, 308. 
 Gassett v. Wilson, 21, 187. 
 Gates v. Andrews, 341, 342, 351, 
 
 417, 563. 
 Gates v. Boomer, 535. 
 Gates v. Gaines, 162. 
 Gates v. Gates, 464. 
 Gates v. Johnson, 486. 
 Gates v. Labeaume, 334, 354, 360, 
 
 361, 403, 417, 427, 594. 
 Gault v. Saffin, 313. 
 Gay v. Bidwell, 125. 
 Gaylor v. Harding, 157, 166, 484. 
 
 Gaylord v. Couch, 239, 448, 543. 
 
 Gaylord v. Kelshaw, 548. 
 
 Gazzam v. Poyntz, 382, 383. 
 
 Gebhard v. Sailer, 456, 457. 
 
 Gebhart v. Merfield, 200. 
 
 Geiger v. Welsh, 218. 
 
 Geigler v. Maddox, 26. 
 
 Geisse v. Beale, 340, 467, 473. 
 
 Geistv. Geist, 233, 521. 
 
 Gentry v. Harper, 242, 532. 
 
 Gentry v. Robinson, 197. 
 
 George v. Kimball, 406, 492. 
 
 George v. Milbanke, 244, 274, 278, 
 498. 
 
 George v. Norris, 112. 
 
 George v. Williamson, 445. 
 
 Geortner v. Canajoharie, 230. 
 
 Gere v. Dibble, 548. 
 
 Gere v. Murray, 23, 24, 26, 359, 
 361, 392, 415. 
 
 Gerrard v. Lauderdale, 339. 
 
 Gerrish v. Mace, 23, 546. 
 
 Getzler v. Seroni, 444, 482, 505, 
 539, 621. 
 
 Gibbons v. Peeler, 445. 
 
 Gibbs v. Chase, 475. 
 
 Gibbs v. Glamis, 339. 
 
 Gibbs v. Neely, 260, 264, 585, 590. 
 
 Gibbs v. Patten, 482. 
 
 Gibbs v. Thayer, 446, 478. 
 
 Gibbs v. Thompson, 36, 41, 43, 49, 
 
 50, 55, 57, 59. 
 Gibson v. Chedie, 340. 
 Gibson v. Hill, 37, 44, 58, 112, 119. 
 Gibson v. Hough, 42. 
 Gibson v. Love, 27, 98, 113, 152, 
 
 173, 504. 
 Gibson v. Rees, 340. 
 Gibson v. Seymour, 41, 179, 225. 
 Gibson v. Walker, 187, 407. 
 Gicker v. Martin, 312, 486. 
 Giddings v. Sears, 185, 190. 
 Gieker v. Martin, 307. 
 Gifford v. Ford, 444, 456. 
 Gilham v. Locke, 226, 227, 229. 
 Gilleland v. Rhoads, 246. 
 Gillespie v. Gillespie, 444, 456. 
 Gillespie v. Miller, 251. 
 Gillett v. Bate, 609. 
 Gillett v. Phelps, 47, 582. 
 Gilmer v. Earnhardt, 412, 417, 418. 
 Gilmore v. Bangs, 459. 
 Gilmore v. North American Land 
 
 Co., 279. 
 Gimmell v. Adams, 417, 427. 
 
TABLE OF CASES CITED. 
 
 XXXI 
 
 Giraud v. Mazier, 507. 
 
 Gist v. Pressley, 120, 157, 158. 
 
 Given v. Gordon, 396. 
 
 Glaister v. Hewer, 240, 241, 277. 
 
 Glann v. Younglove, 249. 
 
 Glass v. Farmer, 307, 617. 
 
 Glasscock v. Batton, 108, 111, 159. 
 
 Glassner v. Wheaton, 459, 480. 
 
 Glave v. Wentworth, 463. 
 
 Glaze v. Blake, 252, 589. 
 
 Gleason v. Day, 179, 225. 
 
 Gleisis v. McHatton, 474. 
 
 Glenn v. Glenn, 35, 37, 50, 52, 54, 
 
 58. 
 Glenn v. Grover, 50, 184, 191, 194, 
 
 208, 556, 558, 559, 588, 594, «03. 
 Glenn v. Eandall, 42, 199, 216, 558, 
 
 '594, 596. 
 Glenny v. Langdon, 545. 
 Glidden v. Taylor, 249, 251. 
 Glover v. Allen, 236. 
 Godbold v. Lambert, 532. 
 Godchaux v.Mulford, 136, 141, 213. 
 Goddard v. Hapgood, 388, 406, 407, 
 
 411, 615. 
 Goddard v. Sawyer, 231. 
 Goddard v. Winthrop, 514. 
 Godding v. Brackett, 241, 242, 530. 
 Godell v. Taylor, 281. 
 Godfrey v. Germain, 32, 38, 55. 
 Goembell v. Arnett, 258. 
 Goff v. Dabbs, 257. 
 Goff v. Nutall, 320. 
 Goffv. Rogers, 43. 
 Goff v. Russell, 223. 
 Golden v. Cockril, 513. 
 Goldsbury v. May, 54, 113, 134, 155, 
 
 175. 
 Goldsmith v. Russell, 222, 545, 573. 
 Gooch's Case, 12, 474, 505, 530. 
 Goodale v. Nichols, 492. 
 Goodell v. Williams, 394. 
 Goodenough v. Spencer, 202, 450. 
 Goodgame v. Cole, 574, 581, 589, 
 
 593. 
 Goodheart v. Johnson, 41, 128. 
 Goodhue v. Berrien, 191, 487. 
 Goodnow v. Smith, 575. 
 Goodrich v. Downs, 23, 363, 364, 
 
 405, 488. 
 Goodson v. Jones, 274, 277. 
 Goodwin v. Hamill, 188. 
 Goodwin v. Hammond, 614. 
 Goodwin v. Hubbard, 242. 
 Goodwin v. Kelly, 170. 
 
 Goodwin v. Sharkey, 544. 
 Goodwyn v. Goodwyn, 154, 261, 
 
 456. 
 Googins v. Gilmore, 48, 111, 125, 
 
 231. 
 Gordon v. Cannon, 343, 351, 379, 
 
 389, 421, 423, 435, 436, 437, 
 
 438, 440. 
 Gordon v. Clapp, 190, 455. 
 Gordon v. Coolidge, 338, 348. 
 Gordon v. Haywood, 492. 
 Gordon v. Lowell, 52, 57, 242, 532. 
 Gordon v. Worthley, 300. 
 Gore v. Clisby, 333. 
 Gore v. Waters, 308. 
 Gorham v. Herrick, 225. 
 Gormerly v. Chapman, 543. 
 Gormley v. Potter, 531, 543. 
 Goshorn v. Snodgrass, 54, 58, 493. 
 Goss v. Neale, 418. 
 Gost v. Heidelberg, 281. 
 Gottberg v. O'Connor, 203. 
 Goudy v. Gebhart, 445. 
 Gough v. Everard, 131. 
 Gough v. Henderson, 241. 
 Gould v. Steinburg, 546. 
 Gould v. Ward, 39. 
 Goumans v. Boomhower, 245. 
 Gove v. Lawrence, 327. 
 Governor v. Campbell, 361, 593, 
 
 594. 
 Gowan v. Gowan, 255, 453. 
 Gowering v. Rich, 240, 242, 530. 
 Gracey v. Davis, 570. 
 Gragg v. Martin, 248. 
 Graham, In re, 482. 
 Graham v. Furber, 54, 191. 
 Graham v. Lockhart, 213, 331, 338, 
 
 383, 404, 405, 412, 591, 593, 599. 
 Graham v. McCreary, 176. 
 Graham v. Railroad Co., 18. 
 Graham v. Rooney, 219, 479. 
 Graham v. Smith, 52. 
 Grant v. Chapman, 387, 416, 418. 
 Grant v. Lewis, 114, 115, 215, 589. 
 Grant v. Libby, 590. 
 Grant v. Ward, 600. 
 Graser v. Steelwagon, 461, 464. 
 Graves v. Blondell, 219. 
 Graves v. Roy, 434, 436, 511. 
 Gray v. Chase, 543. 
 Gray v. Corey, 172. 
 Gray v. Faris, 240, 241, 242, 530, 
 
 559. 
 Gray v. Mathias, 229. 
 
XXX11 
 
 TABLE OF CASES CITED. 
 
 Gray v. Schenck, 549, 550. 
 Gray v. St. John, 189, 582. 
 Gray v. Tappan, 281. 
 Greathouse v. Brown, 161. 
 Green v. Banks, 331, 361, 362. 
 Green v. Branch Bank, 364, 399, 
 
 488. 
 Green v. Kimble, 528. 
 Green v. Kornegay, 461. 
 Green v. Stuart, 606. 
 Green v. Tanner, 22, 184, 185, 197, 
 
 213, 492, 558, 559. 
 Green v. Tantum, 57, 201, 208, 240, 
 
 533, 538. 
 Green v. Trieber, 28, 330, 363, 
 
 399, 400, 405, 408, 435, 436, 
 
 515. 
 Greenbaum v. Wheeler, 126, 129. 
 Greene v. Allen, 521. 
 Greene v. Breck, 395. 
 Greene v. Mowry, 513. 
 Greene v. Starnes, 508. 
 Greenfield's Estate, 292. 
 Greenleaf v. Edes, 364, 417, 488. 
 Greenleaf v. Mumford, 536, 537. 
 Greenwald v. Roberts, 480. 
 Greenwalt v. Austin, 186. 
 Greenway v. Thomas, 542. 
 Greenwood v. Broadhead, 534. 
 Greenwood v. Coleman, 456. 
 Greenwood v. Naylor, 517. 
 Greer v. Wright, 240, 504, 533, 607. 
 Gregg v. Brigham, 488, 521, 562. 
 Gregory v. Harrington, 205, 455. 
 Gregory v. Haworth, 446. 
 Gregory v. Perkins, 26, 42. 
 Gregory v. Wheedon, 445. 
 Grider v. Graham, 448. 
 Gridley v. Bingham, 587. 
 Gridley v. Watson, 292. 
 Gridley v. Wynant, 483, 492. 
 Griffin v. Cranston, 23, 220, 230, 
 
 247. 
 Griffin v. Marquardt, 361, 386, 413, 
 
 594. 
 Griffin v. New Jersey Oil Co., 231. 
 Griffin v. Nitcher, 538. 
 Griffin v. Stoddard, 18, 231. 
 Griffin v. Wardlaw, 261, 262, 458, 
 
 499, 558. 
 Griffith v. Bank, 225, 534. 
 Griffith v. Ricketts, 339, 340. 
 Grimes v. Davis, 113, 155. 
 Grimes v. Russell, 292. 
 Grimsby v. Ball, 507. * 
 
 Grimshaw v. Walker, 437. 
 Grimsley v. Hooker, 464, 609. 
 Griswold v. Sheldon, 65, 119, 125, 
 
 127. 
 Groat v. Rees, 111. 
 Grogan v. Cooke, 184, 209, 239, 240, 
 
 295, 533. 
 Grooves v. Steel, 582. 
 Grosehen v. Page, 395. 
 Groschen v. Thomas, 598. 
 Gross v. Lange, 482. 
 Grover v. Wakeman, 25, 28, 180, 
 
 181, 183, 329, 362, 366, 368, 
 
 381, 427, 430, 431, 433, 434, 
 
 546, 547, 549, 558, 559, 571, 
 * 572, 608. 
 Grubbs v. Greer, 52, 112, 130. 
 Gruber v. Boyles, 29, 267, 581. 
 Grum v. Barney, 144. 
 Guardians v. Lawrence, 519, 520. 
 Guerin v. Hunt, 355, 369, 372, 375, 
 
 376, 377, 379, 384, 402, 539, 
 
 583, 592. 
 Guest v. Barton, 457. 
 Gugen v. Sampson, 319. 
 Guffin v. First Nat'l Bank, 217, 
 
 232. 
 Guice v. Sanders, 112. 
 Guidry v. Grivot, 582. 
 Guignard v. Aldrich, 121, 185. 
 Guild v. Leonard, 184. 
 Guillander v. Howell, 513. 
 Gully v. Hull, 445. 
 Gunn v. Butler, 218, 228, 
 Guthrie v. Gardner, 242, 530. 
 Guthrie v. Wood, 62, 161. 
 Gutzweiler v. Lachman, 161. 
 Gutzweiler v. Lackman, 261, 468, 
 
 592. 
 Guyer v. Figgins, 292, 310, 538. 
 Gwin v. Selby, 230. " 
 
 Haak v. Linderman, 236. 
 
 Haben v. Harshaw, 230. 
 
 Hack v. Stewart, 232. 
 
 Hackett v. Manlove, 173, 254, 463, 
 
 521. 
 Hadden v. Spader, 240, 533. 
 Hafner v. Irwin, 22, 40, 354, 378, 
 
 380, 412. 
 Hagan v. Walker, 536, 541. 
 Hager v. Shindler, 474, 476, 546, 
 
 554, 563, 567. 
 Haggarty v. Pittman, 375. 
 Haggerty v. Nixon, 530, 534, 538. 
 
TABLE OF CASES CITED. 
 
 xxxm 
 
 Haile v. Brewster, 112. 
 Haines v. Campbell, 417, 464. 
 Hairgrove v. Millington, 361, 588. 
 Halbert v. Grant, 49, 58, 241, 242, 
 
 532, 534, 540, 609. 
 Halcombe v. Ray, 42, 483, 484. 
 Hale v. Alnutt, 191. 
 Hale v. Chandler, 486. 
 Hale v. Saloon Omnibus Co., 46, 
 
 54, 199, 209, 573, 603. 
 Hale v. Smith, 574. 
 Hale v. Stewart, 185, 223. 
 Haleys v. Williams, 571, 572. 
 Halfman v. Ellison, 562. 
 Hall v. Arnold, 21, 185, 187, 197. 
 Hall v. Callahan, 445. 
 Hall v. Dennison, 332, 334, 337, 
 
 339, 348, 393, 407, 435. 
 Hall v. Edrington, 292. 
 Hall v. Gaylor, 155, 173. 
 Hall v. Greenly, 544, 546. 
 Hall v. Hamlin, 577. 
 Hall v. Heydon, 486. 
 Hall v. Joiner, 534. 
 Hall v. Light, 304. 
 Hall v. Parsons, 138, 141, 142, 166, 
 
 173., 
 Hall v. Reading, 121, 177. 
 Hall v. Sands, 327, 328, 504. 
 Hall v. Snowhill, 459. 
 Hall v. Sroufe, 249. 
 Hall v. Stryker, 458, 506. 
 Hall v. Tuttle, 26, 75, 81, 101, 111. 
 Hall v. Wheeler, 379, 383. 
 Hallowell v. Horter, 249. 
 Halsey v. Christie, 462. 
 Halsey- v. Whitney, 28, 332, 334, 
 
 335, 337, 338, 343, 344, 345, 
 
 346, 386, 393, 397, 434, 435, 
 
 436, 437, 440, 441. 
 Halstead v. Gordon, 415, 423, 424. 
 Halton v. Jordan, 398. 
 Hambleton v. Hayward, 131. 
 Hamblyn v. Ley, 505. 
 Hambrick v. Bragg, 545. 
 Hamburger v. Peter, 276, 281. 
 Hamet v. Dundass, 44, 284, 591. 
 Hamill v. Willett, 119. 
 Hamilton v. Bishop, 600. 
 Hamilton v. Blackwell, 49, 51. 
 Hamilton v. Cone, 242, 530. 
 Hamilton v. Gilbert, 459. 
 Hamilton v. Greenwood, 269, 291. 
 Hamilton v. Russell, 10, 98, 113. 
 Hamilton v. Scull, 455. 
 
 Hamilton v. Staples, 197. 
 Hamilton v. Thomas, 319. 
 Hamilton v. Zimmerman, 249. 
 Hamlen v. McGillicuddy, 531, 538. 
 Hamlin v. Bridge, 238. 
 Hamlin v. Wright, 545, 551. 
 Hammock v. McBride, 260, 521. 
 Hammond v. Hudson River Co., 
 
 547, 548, 549, 551, 609. 
 Hampson v. Sumner, 541, 558. 
 Hampton v. Morris, 394, 395. 
 Hancock v. Horan, 122, 191. 
 Handy v. Phila. & Reading R. R. 
 
 Co,, 455. 
 Haney v. Nugent, 44, 51, 58. 
 Hanford v. Artcher, 56, 63, 68, 106, 
 
 111, 114, 117. 
 Hanford v. Obrecht, 158, 161. 
 Hanford v. Paine, 512, 513, 514. 
 Hankins v. Ingolls, 112, 120, 127. 
 Hanly v. Logan, 238. 
 Hanson v. Buckne'r, 279, 504. 
 Hanson v. Power, 319, 502. 
 Hapgood v. Cornwell, 258. 
 Hapgood v. Fisher, 220. 
 Hardaway v. Manson, 111. 
 Hardcastle v. Pisher, 384. 
 Hardee v. Langford, 581. 
 Hardin v. Osborn,' 409, 410, 412. 
 Harding v. Colon, 460. 
 Harding v. Harding, 486, 523. 
 Harding v. Janes, 170, 171, 177. 
 Hardy v. Green, 195, 296, 298. 
 Hardy v. Mitchell, 287. 
 Hardy v. Simpson, 26, 331, 402. 
 Hardy v. Skinner, 60, 331, 402. 
 Hargroves v. Meray, 229, 305, 325, 
 
 327. 
 Harking v. Bailey, 58, 184. 
 Harkrader v. Leiby, 395. 
 Harlan v. Barnes, 240, 282, 510, 
 
 533, 539. 
 Harlan v. Maglaugh in, 317, 321. 
 Harlan v. Binks, 340. 
 Harlen v. Watson, 223. 
 Harman v. Abbey, 125. 
 Harman v. Hoskins, 23, 125, 487. 
 Harman v. Richards, 199, 208, 310, 
 
 598. 
 Harmon v. Harmon, 445. 
 Harney v. Pack, 48, 53, 179, 225. 
 Harrell v. Beall, 493, 494. 
 Harrell v. Intrell, 54, 55, 56. 
 Harrell v. Mitchell, 591, 601, 605. 
 Harrington v. Brittain, 131. 
 
XXXIV 
 
 TABLE OP CASES CITED. 
 
 Harris v. Alcock, 43, 228, 486, 598. 
 Harris v. Burns, 48. 
 Harris v. De Graffenreid, 384. 
 Han-is v. Harris, 452, 455, 502, 503. 
 Harris v. Sumner, 333, 363, 434, 
 
 615. 
 Harris v. Taylor, 552, 553. 
 Harris v. Thompson, 350. 
 Harrison v. Bailey, 448. 
 Harrison v. Campbell, 35, 37, 51, 
 
 55, 57, 481, 526, 541. 
 Harrison v. Carroll, 310. 
 Harrison v. Jaques, 199. 
 Harrison v. Kramer, 199, 546,. 
 Harrison v. Phillips Academy, 41, 
 
 42, 184, 186. 
 Harrison v. Sterry, 351. 
 Harshaw v. Woodfin, 60. 
 Harshman v. Lowe, 395. 
 Hart v. Crane, 412. 
 Hart v. Flinn, 49, 58, 232. 
 Hart v. Gedney, 378, 412. 
 Hart v. Hart, 502, 527. 
 Hart v. Wing, 165. 
 Hartfleld v. Simmons, 45, 606. 
 Hartley v. McAnnulty, 444. 
 Hartley v. White, 230. 
 Hartman v. Diller, 585, 586. 
 Hartman v. Vogel, 119. 
 Hartshorne v. Eames, 21, 35, 37, 
 49, 54, 56, 187, 191, 531, 533, 
 558, 570. 
 
 Hartshorne v. Williams, 42. 
 
 Harvey v. Alexander, 307, 310, 597. 
 
 Harvey v. Crane, 125. 
 
 Harvey v. Mix, 381, 483. 
 
 Harvey v. Steptoe, 281. 
 
 Harvey v. Varney, 455. 
 
 Harvin v. Weeks, 455. 
 
 Harwood v. Knapper, 455. 
 
 Haskell v. Bakewell, 50, 277, 293, 
 319. 
 
 Haskell v. Greeley, 111. 
 
 Hassam v. Barrett, 448. 
 
 Hastings v. Baldwin, 24, 333, 338, 
 384, 406. 
 
 Hastings v. Belknap, 435. 
 
 Hastings v. Palmer, 387, 537. 
 
 Hastings v. Spencer, 614. 
 
 Haston v. Castator, 541. 
 
 Haston v. Castner, 292. 
 
 Hatch v. Bailey, 605. 
 
 Hatch v. Bates, 459. 
 
 Hatch v. Gray, 307. 
 
 Hatch v. Jordan, 197. 
 
 Hatch v. Smith, 394, 435. 
 Hathaway v. Brown, 32, 200, 201, 
 
 468, 586, 588, 593, 594, 600. 
 Hathaway v. Noble, 565. 
 Hatfield v. Mercer, 508. 
 Haven v. Low, 26, 65, 66, 67, 113, 
 
 119, 485. 
 Haven v. Richardson, 39, 334, 344, 
 
 372, 435, 437, 441. 
 Havens v. Hussey, 351. 
 Hawes v. Leader, 445. 
 Hawkins v. Allston, 35, 43, 46, 57, 
 
 59, 216, 226, 263, 264, 560, 609. 
 Hawkins v. Mofflt, 219. 
 Hawkins v. National Bank, 128. 
 Hawkins v. Sneed, 262, 492. 
 Hawley v. Sackett, 316, 317. 
 Haydon v. Denslow, 454. 
 Hayes v. Heidelberg, 261, 466, 469, 
 
 470, 471. 
 Hayes v. Jones, 224, 298, 304. 
 Haymaker's Appeal, 475. 
 Hayner v. Fowler, 507. 
 Haynes v. Hunsicker, 165, 167. 
 Haynes v. Ledyard, 236. 
 Haynes v. Leppig, 589. 
 Hays v. Doane, 376, 555. 
 Haywood v. Sledge, 522. 
 Hazelinton v. Gill, 62, 96, 159, 296, 
 
 312. 
 Heacock v. Durand, 365, 425. 537, 
 
 560. 
 Head v. Horn, 231. 
 Head v. Ward, 158. 
 Hearn, Ex parte, 226. 
 Heath v. Page, 288, 479, 505, 579, 
 
 581, 582, 609. 
 Heath v. Van Cott, 456. 
 Hecht v. Koegel, 57. 
 Heck v. Fisher, 243. 
 Heckman v. Messinger, 390, 404. 
 Hedman v. Anderson, 127. 
 Hefner v. Metcalf, 20, 359, 397. 
 Heidingsfelder v. Slade, 184. 
 Heighe v. Farmers' Bank, 508, 554. 
 Heinrich v. Woods, 484. 
 Heintze v. Bentley, 43, 266, 480. 
 Heitzman v. Divil, 236. 
 Helfrich v. Stem, 589, 590, 591, 
 
 599. 
 Hemmenway v. Wheeler, 523. 
 Hemphill v. Hemphill, 462, 544. 
 Hempstead v. Johnston, 56, 122, 
 332, 360, 384, 402, 404, 409, 
 594, 604, 606. 
 
TABLE OF CASES CITED. 
 
 XXXV 
 
 Hempstead v. Starr, 394. 
 Henderson v. Bliss, 429, 434, 436, 
 
 440. 
 Henderson v. Brooks, 539, 545. 
 Henderson v. Dickey, 446. 
 Henderson v. Dodd, 285, 320, 504, 
 
 598. 
 Henderson v. Downing, 47, 219. 
 Henderson v. Haddon^ 383, 389. 
 Henderson v. Henderson, 54, 55, 
 
 191. 
 Henderson v. Hunton, 475, 617, 
 
 618. 
 Henderson v. Lloyd, 288. 
 Henderson v. Mabry, 72, 174. 
 Hendricks v. Mount, 188, 459. 
 Hendricks v. Robinson, 52, 184, 
 
 225, 231, 534. 
 Hendrickson v. Winne, 567. 
 Henkel, In re, 245. 
 Henkels v. Brown, 236. 
 Hennessy v. Western Bank, 351, 
 
 421, 423, 436, 438, 440. 
 Hennon v. McClane, 220. 
 Henry v. Fullerton, 327. 
 Henry v. Henry, 604. 
 Henry v. Hinman, 219. 
 Henry v. Murphy, 529. 
 Henschen v. Leichtemeyer, 581. 
 Heppe v. Speakman, 236. 
 Herkelrath v. Stookey, 34, 58, 197. 
 Herkimer Co. Bank v. Brown. 520. 
 Heme v. Meeres, 606, 617. 
 Heroy v. Kerr, 197. 
 Herring v. Eichards, 292, 328, 471. 
 Herring v. Wickham, 296, 299, 300, 
 
 302. 
 Herrington v. Herrington, 242, 570. 
 Herron v. Fry, 144, 165. 
 Herschfeldt v. George, 295, 317, 
 
 327, 616, 617, 621. 
 Hershey v. Whiting, 448. 
 Hess v. Final, 457. 
 Hess v. Hess, 446. 
 Hessing v. McCloskey, 174, 184, 
 
 186, 197, 487, 587. 
 Hester v. Wilkinson, 278. 
 Hetfield v. Jacques, 505. 
 Henson v. Tootle, 127. 
 Heydock v. Stanhope, 254, 355, 
 
 • 435, 560. 
 Heye v. Bolles, 389, 390, 536. 
 Heyneman v. Dannenberg, 536. 
 Heywood v. Brooks, 479. 
 Hibben v. Soyer, 245, 620. 
 
 Hibernia Ins. Co. v. St. L. & N. 
 
 Trans. Co., 538. 
 Hickman v. Caldwell, 517. 
 Hickman v. Hickman, 520. 
 Hickman v. Perrin, 46, 125, 126, 
 
 128. 
 Hickman v. Quinn, 184, 573. 
 Hicks v. Stone, 198, 268, 600. 
 Higby v. Ayres, 378, 409. 
 Higgins v. Gillesheimer, 545. 
 Higgins v. York Building Co., 567, 
 
 612. 
 High v. Nelms, 280, 574, 616. 
 High v. Wilson, 463. 
 Highland v. Highland, 508, 617. 
 Hightower v. Mustian, 396, 549, 
 
 555. 
 Hildebrun v. Brown, 39. 
 Hildreth v. Sands, 476, 598. 
 Hill v. Agnew, 415, 423, 425, 427. 
 Hill v. Bowman, 33, 186. 
 Hill v. Freeman, 235. 
 Hill v.Hill, 235. 
 Hill v. Northrop, 186. 
 Hill v. Eeed, 350. 
 Hill v. Kogers, 186. 
 Hill v. Pine River Bank, 459. 
 Hill v. Wynn, 311. 
 Hilliard v. Cagle, 27, 40, 123, 127, 
 
 315, 316, 317. 
 Hilliard v. Phillips, 589. 
 Hills v. Eliot, 580. 
 Hills v. Hoitt, 583. 
 Hills v. Sherwood, 569, 575. 
 Hillsman v. Blackwell, 53, 58. 
 Hilzeim v. Drane, 461. 
 Hinde v. Yattier, 184. 
 Hinde's Lessee v. Longworth, 291, 
 
 510, 575, 598. 
 Hindman v. Dill, 213, 404. 
 Hiney v. Thomas, 477. 
 Hinkle v. Wilson, 313, 606. 
 Hinman v. Parkis. 252, 292. 
 Hinton v. Curtis, 35, 52, 57, 215. 
 Hinton v. Scott, 308. 
 Hislop v. Hoover, 578. 
 Hitchcock v. Cadmus, 421. 
 Hitchcock v. Kiely, 316. 
 Hitchcock v. St. John, 50, 351, 378. 
 Hitt v. Ormsbee, 284, 574. 
 Hixon v. George, 245. 
 Hobbs v. Bibb, 63, 112. 
 Hobbs v. Davis, 194. 
 Hoboken Bank v. Beekman, 45, 
 
 58, 559. 
 
XXXVI 
 
 TABLE OF CASES CITED. 
 
 Hobbs v. Hull, 305. 
 
 Hockett v. Bailey, 311. 
 
 Hodge v. Wyatt, 331, 338, 339. 
 
 Hodges v. Blount, 39. 
 
 Hodges v. Cobb, 248, 249. 
 
 Hodgkins v. Hook, 137, 171, 175. 
 
 Hodson v. Treat, 458. 
 
 Hoeser v. Kraeka, 456. 
 
 Hoffman's Appeal, 474. 
 
 Hoffman v. Junk, 504. 
 
 Hoffman v. Mackall, 20, 330, 347, 
 
 355, 356, 367, 407, 410, 415, 
 
 417, 418. 
 Hoffman v. Pitt, 96, 111, 463. 
 Hoffman v. Toner, 249. 
 Hoffner v. Clark, 145, 153. 
 Hoke v. Henderson, 29, 47,5, 497, 
 
 563. 
 Holbird'v. Anderson, 21, 184, 187, 
 
 225. 
 Holbrook v. Baker, 156, 231, 394. 
 Holbrook v. Holbrook, 588. 
 Holden v. Burnham, 223, 275. 
 Holdship v. Patterson, 248. 
 Hollacher v. O'Brien, 119. 
 Holland v. Cruft, 445, 614. 
 Holliday v. Holliday, 448. 
 Hollins v. Mayer, 437. 
 Hollingshead v. Allen, 544. 
 Hollis v. Morris, 448. 
 Hollister v. Loud, 334, 344, 354, 
 
 357, 361, 390, 394, 396, 398, 
 
 403, 407, 408, 556. 
 Holloway v. Millard, 269, 275, 292, 
 
 319, 324. 
 Hollowell v. Simonsou, 310. 
 Hollowell v. Skinner, 236. 
 Holmbergv. Dean, 371, 375, 376, 
 
 377. 
 Holmes v. Clark, 268, 292, 320. 
 Holmes v. Crane, 116, 118, 119, 
 
 156, 158. 
 Holmes v. Elliott, 279. 
 Holmes v. Marshall, 126. 
 Holmes v. Penney, 199, 277, 283, 
 
 319, 323, 326, 572. ' 
 Holmesley v. Hogue, 592. 
 Holt v. Bancroft, 363, 395. 
 Holt v. Creamer, 43, 202, 457, 486. 
 Holt v. Kelly, 361, 402. 
 Hombeck v. Vanmeter, 112, 120. 
 Hone v. Henriquez, 340, 570, 615, 
 
 616. 
 Hone v. Woplsey, 341, 342. 
 Hood v. Brown, 39. 
 
 Hood v. Fahnestock, 492, 495. 
 Hood v. Frelison, 448. 
 Hoofsmith v. Cope, 113, 184. 
 Hook v. Mowre, 58, 327, 495, 502. 
 Hook v. Stone, 351. 
 Hooper v. Edwards, 595. 
 Hooper v. Hills, 333. 
 Hooper v. Tuckerman, 28, 365, 405. 
 Hoopes v. Knell, 378. 
 Hoose v. Robbins, 581, 603. 
 Hoot v. Sorrell, 45, 243, 248, 310. 
 Hopkins v. Beebe, 185, 528. 
 Hopkins v. Gallatin Turnpike Co., 
 
 350. 
 Hopkins v. Langton, 201, 202, 582. 
 Hopkins v. Scott, 158, 225. 
 Hopkins v. Sievert, 601. 
 Hopkins v. Webb, 459. 
 Hopkirk v. Randolph, 227, 240, 
 
 280, 285, 292, 293, 294, 295, 
 
 298, 498, 609, 612, 619. 
 Hord v. Rust, 35, 504, 556. 
 Horn v. Horn, 239, 240. 
 Horn v. Ross, 315. 
 Horn v. Volcano Water Co., 319, 
 
 321, 446. 
 Horn v. Wiatt, 58. 
 Horneffer v. Duress, 313. 
 Horner v. Zimmerman, 444, 534. 
 Horstman v. Kaufman, 556. 
 Horwitz v. Ellinger, 18, 21. 355, 
 
 357, 358. 
 Horton v. Dewey, 306, 595. 
 Hotop v. Durant, 360. 
 Hotop v. Neidig, 382. 
 Hough v. Ives, 42. 
 Houghton v. Tate, 241, 572. 
 Houghton v. Westervelt, 417. 
 Houston v. Boyle, 279. 284. 
 Houston v. Howard, 176. 
 Houston v. Nowland, 332, 349, 512. 
 Houston v. Sutton, 518. 
 Hovey v. Holcomb, 18, 553, 566. 
 How v. Camp, 48, 49, 57, 394, 558. 
 
 559, 572, 608, 609, 612, 614, 
 
 618, 619. 
 How v. Taylor, 171. 
 Howard v. Crawford, 37. 
 Howard v. Prince, 111. 
 Howard v. Sheldon, 150, 235, 540. 
 Howard v. Williams, 154, 280, 283 
 
 285, 290, 292, 320. 
 Howe v. Bishop, 242, 530. 
 Howe v. Colby, 307. 
 Howe v. Keeler, 136. 
 
TABLE OF CASES CITED. 
 
 xxxvn 
 
 Howe v. Lawrence, 258. 
 
 Howe v. Reed. 581, 583. 
 
 Howe v. Ward, 315, 320, 503, 508. 
 
 Howe v. Waysman, 446. 
 
 Howe v. Wildes, 227. 
 
 Howe Machine Co. v. Claybourn, 
 
 217, 220. 
 Howell v. Alkyn, 516, 519. 
 Howell v. Bell, 113, 213. 
 Howell v. Edgar, 363, 364, 434, 
 
 488. 
 Howell v. Edmonds, 445. 
 Howell v. Elliott, 596. 
 Hower v. Geesaman, 149, 150, 343, 
 
 378, 394, 408. 
 Howerton v. Holt, 127. 
 Howland v. Dews, 524, 525. 
 Howland v. Ralph, 462. 
 Hoxie v. Price, 55, 306, 546. 
 Hoy v. Wright, 492. 
 Hoye v. Penn, 222, 274. 
 Hozey v. Buchanan, 506. 
 Hubbard v. Allen, 51, 58, 222, 261, 
 
 595, 596, 615. 
 Hubbard v. Hubbard, 527. 
 Hubbard v. Remick, 309. 
 Hubbard v. Savage, 231. 
 Hubbard v. Taylor, 184. 
 Hubbard v. Winborne, 379. 
 Hubbell v. Currier, 544, 609. 
 Hubbs v. Bancroft, 44, 46, 474, 571. 
 Hubbs v. Brockwell, 446. 
 Hubler v. Waterman, 406. 
 Hudgins v. Kemp, 36, 44, 50, 579. 
 Hudnal v. Wilder, 10, 279, 291, 322. 
 Hudson v. Maze, 334, 427. 
 Huey's Appeal, 482. 
 Huffv. Roane, 601. 
 Huggins v. Perrine, 241, 316, 321. 
 Hughes v. Bloomer, 557. 
 Hughes v. Corey, 125, 131. 
 Hughes v. Ellison, 351. 
 Hughes v. Monty, 200. 
 Hughes v. Roper, 35, 38. 
 Hugus v. Robinson. 69, 135, 141, 
 
 166. 
 Hull v. Jeffrey, 395. 
 Humbert v. Methodist Church, 281. 
 Humberton v. Howgill, 526. 
 Humes v. Scruggs, 311, 481, 485. 
 Humphries v. Freeman, 193, 200, 
 
 202, 203. 
 Humphries v. McCraw, 154, 587. 
 Humphries v. Wilson, 55. 
 Hundley v. Buckner, 594. 
 
 Hundley v. Webb, 98, 133, 152, 155, 
 
 156, 157, 158. 
 Hungerford v. Earle, 39, 51, 316, 
 
 531. 
 Hunt v. Blodgett, 55, 242. 
 Hunt v. Butterworth, 445, 530. 
 Hunt v. Eield, 536, 552. 
 Hunt v. Hooper, 517. 
 Hunt v. Hoover, 45, 202. 
 Hunt v. Knox, 58, 561, 567. 
 Hunt v. Lathrop, 514. 
 Hunter v. Corbett, 113. 
 Hunter v. Poster, 48. 
 Hunter v. Hunter, 281, 566. 
 Hunters v. Waite, 214, 269, 270, 
 
 272, 276, 285,288, 291, 292, 325. 
 Huntzinger v. Harper, 584. 
 Hurd v. Silsbee, 337, 434, 467. 
 Hurdt v. Courtenay, 307, 311, 319, 
 
 322, 324, 508, 515. 
 Hurlbert v. Dean, 389, 390. 
 Hurlburd v. Bogardus, 142, 171. 
 Hurlburt v. Jones, 250. 
 Hurlbut v. Carter, 395. 
 Hurley v. Oeler, 446. 
 Hussey v. Castle, 304, 309, 321. 
 Hussey v. Thornton, 151. 
 Hussman, In re, 54, 568. 
 Huston v. Cantril, 498, 503, 508, 
 
 566. 
 Hutchins v. Gilchrist, 148, 166, 167, 
 
 170, 173. 
 Hutchins v. Sprague, 482. 
 Hutchinson v. Horn, 197, 229. 
 Hutchinson v. Kelly, 35, 50, 316, 
 
 322, 324, 503, 504. 
 Hutchinson v. Lord, 417, 418, 423. 
 Hutchinson v. McClure, 184. 
 Hutchinson v. Smith, 352, 396. 
 Hutchinson v. Watkins, 197. 
 Hyde v. Chapman, 223, 275, 536. 
 Hyde v. Olds, 335, 339. 
 Hyde v. Sontag, 45, 51, 56. 
 Hyman v. Bailey, 477, 592. 
 Hyslop v. Clarke, 28, 364, 380, 488. 
 
 Iley v. Niswanger, 320, 322, 325. 
 Imray v. Magnay, 499. 506, 521, 
 
 523, 585. 
 Ing v. Brown, 558. 
 Ingalls v. Brooks, 576, 577. 
 Ingles v. Donaldson, 41, 42, 64, 
 
 446; 
 Ingliss v. Grant, 393. 
 Ingraham v. Geyer, 434, 513. 
 
xxxvm 
 
 TABLE OF CASES CITED. 
 
 Ingraham v. Grigg, 347, 398, 403, 
 
 424. 
 Ingraham v. Rankin, 256. 
 Ingraham v. Wheeler, 170, 342, 378, 
 
 434. 
 Ingram v. Kirkpatrick, 339. 
 Ingram v. Phillips, 319, 322, 574. 
 Inloes v. American Exchange Bank, 
 
 363, 414, 416. 
 Insurance Co. v. Wallis, 228, 341, 
 
 436, 442, 471, 598. 
 Irish v. Clayes, 485. ■ 
 Irwin v. Keen, 361, 384, 549. 
 Irwin v. Longworth, 467. 
 Irwin v. Wilson, 231. 
 Iselin v. Dalrymple, 425. 
 Isham v. Sohaffer, 243, 249. 
 Ishmael v. Parker, 534. 
 Ithell v. Beane, 298. 
 Ivaneovitch v. Stern, 141, 228. 
 Izzard v. Izzard, 279, 283, 291, 304. 
 
 Jackman v. Robinson, 546, 549, 550. 
 Jacks v. Tunno, 50, 154, 276, 282, 
 
 290, 291, 573. 
 Jackson v. Andrews, 497. 
 Jackson v. Bouley, 282, 526. 
 Jackson v. Brownell, 193, 265. 
 Jackson v. Brush, 57. 
 Jackson v. Cadwell, 463. 
 Jackson v. Cornell, 21, 355, 377, 
 
 379, 391. 
 Jackson v. Dean, 112. 
 Jackson v. Dutton, 444. 
 Jackson v. Forrest, 241, 549. 
 Jackson v. Garnsey, 444, 456, 595. 
 Jackson v. Ham, 224. 
 Jackson v. Mather, 22, 36, 38, 49, 
 
 56, 58, 201, 504. 
 Jackson v. Myers, 320, 504. 
 Jackson v. Parker, 218. 
 Jackson v. Peek, 222, 267, 294. 
 Jackson v. Post, 291 . 
 Jackson v. Scott, 257. 
 Jackson v. Spivey, 58. 
 Jackson v. Terry, 492, 496, 497. 
 Jackson v. Timmerman, 275. 
 Jackson v. Town, 275, 291. 
 Jacobi v. Schloss, 480. 
 Jacobs v. Allen, 422, 423. 
 Jacobs v. Remsen, 378, 384, 394, 
 
 423, 425, 589. 
 Jacoby's Appeal, 474. 
 Jacot v. Corbett, 364, 439, 488. 
 Jaeger v. Kelly, 45, 603, 604. 
 
 Jaffers v. Aneals, 58, 482. 
 James v. Bird, 448. 
 James v. Johnson, 39, 52, 57. 
 James v. McCleod, 612. 
 James v. Railroad Co., 190. 
 Jamison v. Chestnut, 507. 
 Jamison v. King, 45. 
 Janes v. Whitbread, 416. 
 Janney v. Barnes, 380, 402, 405. 
 Jaques v. Greenwood, 397. 
 Jarman v. Woolloton, 65, 159, 160, 
 
 298, 312. 
 Jarolawski v. Simon, 190, 191. 
 Jarvis v. Davis, 153. 
 Jaycox v. Caldwell, 307, 386. 
 Jayne v. Dillon, 112. 
 Jeffreys v. Cochrane, 570. 
 Jencks v. Alexander, 241. 
 Jenison v. Graves, 253, 559. 
 Jenkins v. Eichelberger, 236. 
 Jenkins v. Einstein, 53, 191, 197. 
 Jenkins v. Peace, 59, 228. 
 Jenkyn v. Vaughan, 218, 270, 324. 
 Jenne v. Joslyn, 585. 
 Jenness v. Berry, 466, 575, 576, 
 
 577, 578. 
 Jenney v. Andrews, 244. 
 Jennings v. Carter, 100, 154. 
 Jennings v. Prentice, 285, 375. 
 Jessup v. Bridge, 125. 
 Jessup v. Hulse, 343, 411, 414, 493, 
 
 553. 
 Jessup v. Johnston, 44, 52, 58. 
 Jewell v. Porter, 444. 
 Jewett v. Cook, 45, 500. 
 Jewett v. Fink, 245. 
 Jewett v. Warren, 46, 225. 
 Jewett v. Woodward, 366. 
 Jezeph v. Ingram, 161. 
 Jimmerson v. Duncan, 242, 530. 
 Johns v. Bolton, 340, 436, 466, 
 
 469. 
 Johnson v. Brandis, 199, 201, 504. 
 Johnson v. Cunningham, 158, 213. 
 Johnson v. Curtis, 128. 
 Johnson v. Cushing, 244. 
 Johnson v. Elliott, 459. 
 Johnson v. Glenn, 252. 
 Johnson v. Holloway, 113. 
 Johnson v. Jeffries, 459. 
 Johnson v. Johnson, 197, 220. 
 Johnson v. Lovelace, 49, 592. 
 Johnson v. May, 241, 544, 548. 
 Johnson v. McAllister, 363, 404, 
 
 417. 
 
TABLE OF CASES CITED. 
 
 XXXIX 
 
 Johnson v. McGrew, 184, 185, 194, 
 
 207. 
 Johnson v. Morley, 455. 
 Johnson v. Murchison, 486. 
 Johnson v. Osenton, 21, 355. 
 Johnson v. Patterson, 125. 
 Johnson v. Rogers, 474. 
 Johnson v. Sullivan, 191, 199. 
 Johnson v. Thweatt, 23, 125, 129, 
 
 495. 
 Johnson v. Vail, 252, 253. 
 Johnson v. West, 280. 
 Johnson v. Whitwell, 190, 192. 
 Johnson v. Willey, 176. 
 Johnson v. Williams, 517. 
 Johnston v. Bank, 616. 
 Johnston v. Dick, 37, 49, 52, 57, 
 
 199, 501. 
 Johnston v. Field, 197. 
 Johnston v. Gill, 280. 
 Johnston v. Harvy, 219, 399, 462, 
 
 494, 495. 
 Johnston v. Zane, 220, 278, 316, 
 
 319, 509. 
 Jones' Appeal, 296. 
 Jones v. Ashurst, 505. 
 Jones v. Blake, 112, 115, 155. 
 Jones v. Boulter, 200, 269, 274, 280, 
 
 310. 
 Jones v. Bryant, 479. 
 Jones v. Clifton, 292, 326. 
 Jones v. Comer, 456. 
 Jones v. Crawford, 476. 
 Jones v. Dougherty, 332, 334, 434, 
 
 467, 473. 
 Jones v. Dwyer, 170. 
 Jones v. Gorman, 448. 
 Jones' v. Gott, 112. 
 Jones v. Green, 534, 536, 538. 
 Jones v. Henry, 44, 304, 531. 
 Jones v. Hill, 459. 
 Jones v. Huggeford, 24, 125. 
 Jones v. King, 49, 50, 327, 589, 591. 
 Jones v. Lake, 463. 
 Jones v. Marsh, 304, 320. 
 Jones v. Naughright, 186, 189, 194. 
 Jones v. Norris, 583. 
 Jones v. Powell, 226. 
 Jones v. Bahilly, 453, 464. 
 Jones v. Bead, 55, 58, 448, 494, 561, 
 
 562. 
 Jones v. Reeder, 609. 
 Jones v. Ruffln, 224. 
 Jones v. Slubey, 282, 597. 
 JoDes v. Spear, 219. 
 
 Jones v. Syer, 415. 
 Jones v. Taylor, 284, 514. 
 Jones v. Young, 292. 
 Jorda v. Lewis, 112. 
 Jordan v. Fenno, 445. 
 Jordan v. Prink, 177. 
 Jordan v. Turner, 127, 157. 
 Jordan v. White, 185, 186. 
 Jose v. Hewett, 222. 
 •Joseph v. Levi, 126. 129. 
 Joseph v. McGill, 536. 
 Joy v. Sears, 169. 
 Joyce v. Joyce, 448. 
 Judd v. Langdon, 171. 
 Judge v. Vogle, 52, 464, 499. 
 Judson v. Gardner, 401. 
 Juliand v. Rathbone, 346. 
 
 Kaehler v. Diblee, 282. 
 
 Kahl v. Martin, 280. 
 
 Kahley, In re, 123, 127, 128, 487. 
 
 Kaine v. Weigley, 57, 200, 209, 602, 
 
 603. 
 Kalk v. Fielding, 43, 126. 
 Kalkman v. McElderry, 337. 
 Kamp v. Kamp, 505, 543. 
 Kane v. Drake, 27, 34, 53, 56, 112, 
 
 600., 
 Kane v. Roberts, 327, 328, 471. 
 Kans. Pac. R. R. Co. v. Crouse, 119. 
 Kauffelt's Appeal, 517. 
 Kaufman v. Whitney, 45. 
 Kaupe v. Bridge, 482, 543, 568, 608, 
 
 609. 
 Kavanaugh v. Beckwith, 384. 
 Kavanaugh v. Thompson, 484. 
 Kayser v. Heavenrich, 361, 388. 
 Kean v. Newell, 26. 
 Keane v. Kyne, 449. 
 Keating v. Keefer, 233, 281, 316, 
 
 482, 620. 
 Keeler v. Ulrich, 328. 
 Keen v. Kleckner, 185, 223, 228. 
 Keen v. Preston, 598. 
 Keeney v. Good, 249, 313. 
 Keep v. Sanderson, 417, 418, 609. 
 Keevil v. Donaldson, 358. 
 Kehr v. Sickler, 242. 
 Kehr v. Smith, 281, 287, 306, 325, 
 
 620. 
 Keighler v. Nicholson, 438. 
 Keith v. Fink, 389. 
 Keith v. Proctor, 43, 197; 
 Keith v. Wombell, 252. 
 Keller v. Blanchard, 112, 118. 
 
xl 
 
 TABLE OF OASES CITED. 
 
 Kellogg v. Aherin, 197. 
 Kellogg v. Griffin, 517. 
 Kellogg v. Slausou, 346, 367, 372, 
 
 418. 
 Kelly's Appeal, 279. 
 Kelly v. Baker, 351. 
 Kelly v. Campbell, 292, 581. 
 Kelly v. Lane, 546, 609. 
 Kelly v. Lenihan, 22, 602. 
 Kelsey v. Murphy, 528, 585. 
 Kelso v. Blackburn, 534. 
 Kemp v. Carnley, 351, 389. 
 Kemp v. Porter, 338. 
 Kemp v. Walker, 184, 186. 
 Kempland v. Macaulay, 517, 523. 
 Kempner v. Churchill, 32, 40, 45, 
 
 600. 
 Kendall v. Fitts, 171, 175. 
 Kendall v. Hughes, 206, 207, 588, 
 
 589, 602. 
 Kendall v. New England Carpet 
 
 Co., 351, 416. 
 Kendall v. Samson, 173, 174. 
 Kendrick v. Taylor, 309. 
 Kenealy v. Macklin, 567. 
 Kennaird v. Adams, 186, 189. 
 Kennedy v. Divine, 588. 
 Kennedy v. Head, 308. 
 Kennedy v. Ross, 35, 53, 112. 
 Kennedy v. Thorp, 358. 
 Kenny v. Conn. Va. M. Co., 444. 
 Kent v. Riley, 291, 573. 
 Kepner v. Burkhart, 48. 
 Kerr v. Hutchins, 35, 292, 568, 621. 
 Kerrigan v. Rautigan, 283. 
 Ketchum v. Allen, 245. 
 Ketchum v. Watson, 113, 151, 236. 
 Keteltas v. Wilson, 386, 423, 424, 
 
 594. 
 Kettlewell v. Stewart, 434. 
 Kevan v. Branch, 344, 402. 
 Kevan v. Crawford, 43, 300. 
 Keyes v. Brush, 343. 
 Keyes v. Rines, 245. 
 Keys v. Grannis, 463. 
 Keyser's Appeal, 519, 520. 
 Kid v. Mitchell, 154, 278, 319, 459. 
 Kidd v. Rawlinson, 62, 162. 
 Kidney v. Coussmaker, 319, 324, 
 
 325. 
 Kilby v. Haggin, 121, 191, 218, 263, 
 
 264, 265, 266, 469. 
 Killough v. Steele, 112, 120, 221. 
 Kimball v. Eaton, 444. 
 Kimball v. Fenner, 594. 
 
 Kimball v. Munger, 518. 
 Kimball v. Thompson, 21 , 258. 
 Kimberling v. Hartley, 545. 
 Kimmell v. McRight, 242, 281, 530, 
 
 582 
 Kinder v. Macy, 36. 44. 59, 553. 
 King v. Bailey, 113, 133, 147,fl49, 
 
 157, 507, 591. 
 King v. Brewen, 305. 
 King v. Cantrell. 42, 483. 
 King v. Clarke, 445, 575. 
 King v. Clay, 459. 
 King v. Hubbell, 43, 58, 127. 
 King v. Humphreys, 236. 
 King v. Kenan, 125. 
 King v. King, 482. 
 King v. Lyman, 524, 525. 
 King v. Malone, 232. 
 King v. Marissal, 197. 
 King v. Moon, 39, 49, 54, 55, 56, 57, 
 
 224, 600, 603, 604, 606. 
 King v. Moore, 224. 
 King v. Payan, 558. 
 King v. Phillips, 186. 
 King v. Poole, 580, 591. 
 King v. Russell, 34, 55, 56, 58, 203, 
 
 268. 
 King v. Tharp, 322, 577, 621. 
 King v. Thompson, 284, 292. 
 King v. Trice, 394, 492, 552. 
 King v. Watson, 353, 393, 435. 
 King v. Wilcox, 327, 612, 618, 619. 
 Kingdome v. Bridges, 213. 
 Kinghorn v. Wright, 320, 479. 
 Kingsbury v. Wild, 445. 
 Kinnard v. Daniel, 302, 550, 595. 
 Kinnard v. Thompson, 338. 
 Kinnemon v. Miller, 445. 
 Kipp v. Hanna, 273, 276, 279, 280, 
 
 319, 325, 612. 
 Kirby v. Bruns, 243. 
 Kirby v. Ingersoll, 351. 
 Kirby v. Schoonmaker, 389, 391. 
 Kirkbride, In re, 487. 
 Kirkpatrick v. Cason, 520. 
 Kirksey v. Snedecor, 328, 471. 
 Kirtland v. Snow, 68, 132, 143, 186, 
 
 191. 
 Kirwan v. Daniel, 340. 
 Kissam v. Edmondson, 192, 194. 
 Kitchell v. Bratton, 157. 
 Kitchen v. Reinsky, 392. 
 Kitchin v. Dixon, 524. 
 Kittering v. Parker, 53, 556, 559, 
 
 594, 605. 
 
TABLE OF CASES CITED. 
 
 Xli 
 
 Kittredge v. Sumner, 197. 
 Klapp v. Shirk, 360, 378. 
 Klein v. Horine, 554. 
 Kleine v. Katzenberger, 128. 
 Kluender v. Lynch, 186, 250. 
 Knapp v. Smith, 249, 250. 
 Knapp v. White, 467. 
 Knauthv. Bassett, 389, 390, 466, 
 
 538. 
 Kneeland v. Cowles, 213, 394, 405. 
 Knight v. Forward, 115, 588. 
 Knight v. Packer, 371, 394, 401, 
 
 409. 
 Knight v. Waterman, 403. 
 Knower v. Barnard, 517. 
 Knowlton v. Hawser, 58. 
 Knowlton v. Moseley, 590. 
 Knox v. Hunt, 49, 50, 219, 493. 
 Knox v. Summers, 519. 
 Koster v. Hiller, 279. 
 Kreese v. Prindle, 363, 365, 387. 
 Kroesen v. Seevers, 170, 172. 
 Kuevan v. Specker, 482, 620. 
 Kuhn v. Graves, 131. 
 Kuhn v. Stansfield, 311. 
 Kuhn v. Weil, 473. 
 Kulage v. Schueler, 245. 
 Kurtz v. Miller, 583, 600. • 
 Kuykendall v. Hitchcock, 115, 118, 
 
 119. 
 Kuykendall v. McDonald, 45, 113, 
 
 115, 185, 187, 191, 209. 
 Kyger v. Skirt Co., 186, 197. 
 
 Lachlan v. Wright, 125. 
 
 La Crosse K. B. Co. v. Seeger, 459. 
 
 Ladd v. Griswold, 259. 
 
 Ladd v. Wiggan, 41, 327, 489. 
 
 Lady Cox's Case, 229. 
 
 Lady Lambert's Case, 84, 158. 
 
 Laidlaw v. Gilmore, 45, 185, 191. 
 
 Laing v. Cunningham, 258. 
 
 Lake v. Morris, 136, 148, 175. 
 
 Lamb v. Pries, 511. 
 
 Lamb v. Radclifl', 395. 
 
 Lamb v. Stone, 528. 
 
 Lampson v. Arnold, 180, 331, 347, 
 
 361, 363, 395. 
 Lanahan v. Latrobe, 468. 
 Lancaster Savings Inst'n v. Wieg- 
 
 and, 517. 
 Land v. Jeffries, 108, 111, 133, 147, 
 
 165, 238, 600. 
 Landecker v. Houghtaling, 582. 
 Lane v. Kingsberry, 292. 
 
 Lane v. Lutz, 466, 467, 571, 
 Lane v. Sparks, 474. 
 Laney v. Laney, 444. 
 Lang v. Lee, 36, 122, 125. 
 Lang v. Siockwell, 217. 
 Langdon v. Thompson, 380, 421. 
 Langford v. Ply, 35, 51, 58, 504, 
 
 508. 
 Langton v. Tracy, 339. 
 Lanier v. Driver, 335, 401. 
 Lansing v. Eaton, 572. 
 Lansing v. Woodworth, 231, 232, 
 
 364, 401, 405. 
 Lantz v. Worthington, 520. 
 Larkin v. McMullin, 159, 316. 
 Lasher v. Stafford, 40, 256. 
 Lassel v. Tucker, 351, 389. 
 Lassells v. Cornwallis, 244. 
 Lassiter v. Busey, 149. 
 Lassiter v. Cole, 445. 
 Lassiter v. Davis, 197. 
 Latimer v. Batson, 111, 121, 162. 
 Latimer v. Glenn, 309. 
 Laughlin v. Perguson, 150, 155, 
 
 158, 159, 161, 162. 
 Laughton v. Harding, 268, 548, 554. 
 Laurence v. Davis, 334, 336. 
 Laurence v. Lippencott, 279, 476. 
 L'Avender v. Thomas, 187. 
 Law v. Bagwell, 339. 
 Law v. Mills, 395, 512. 
 Law v. Payson, 240, 484, 575, 576, 
 
 593 
 Law v. Smith, 39, 58, 562, 563. 
 Lawrence v. Bank, 479, 548, 609. 
 Lawrence v. Burnham, 143, 149. 
 Lawrence v. Neff, 396. 
 Lawrence v. Tucker, 231, 596. 
 Lawton v. Gordon, 446. 
 Lawton v. Levy, 534, 535. 
 Lay v. Neville, 125, 164, 166. 
 Lay v. Seaye, 213, 
 Layson v. Bowan, 332, 345, 369, 
 
 384, 394. • 
 Le Cocheux v. Cutter, 395. 
 Le Prince v. Guillemot, 439. 
 Lea's Appeal, 435. 
 Leach v. Francis, 197. 
 Leach v. Kelsey, 484, 596-. 
 Leach v. Shelby, 548. 
 Leach v. Williams, 520. 
 Leadman v. Harris, 26, 35, 51, 53, 
 
 186, 215. 
 Leasure v. Colburn, 34. 
 Leavittjv. Blatchford, 213. 
 
xlii 
 
 TABLE OF CASES CITED. 
 
 Leavitt v. Leavitt, 292. 
 
 Lechmere v. Earl of Carlisle, 226. 
 
 Ledyard v. Butler, 496, 497, 499. 
 
 Lee v. Abbe, 491, 492. 
 
 Lee v. Brown, 464. 
 
 Lee v. Figg, 197. 
 
 Lee v. Flannagan, 60,. 185. 
 
 Lee v. Green, 355. 
 
 Lee v. Hollister, 309, 510. 
 
 Lee v. Hunter, 49, 209, 470. 
 
 Lee v. Huntoon, 148, 174, 487. 
 
 Lee v. Lamprey, 585, 593. 
 
 Lee v. Lee, 448. 
 
 Leech v. Shantz, 161, 175. 
 
 Leeds v. Sayward, 333, 335. 
 
 Legard v. Johnson, 305, 308. 
 
 Legerd v. Linley, 111. 
 
 Leggett v. Humphreys, 225. 
 
 Legro v. Lord, 245, 257. 
 
 Lehigh Co. v. Field, 236. 
 
 Lehmer v. Herr, 371, 376, 384, 402, 
 
 583. 
 Leitch v. Hollister, 213, 405. 
 Lemay v. Bibeau, 468, 473. 
 Lenox v. Notrebe, 459. 
 Lentilhon v. Moffat, 342, 424, 437, 
 
 547. 
 Leonard v. Bacon, 505. 
 Leonard v. Baker, 147, 161. 
 Leonard v. Forchimer, 558. 
 Lerow v. Wilmarth, 275, 610. 
 Lesem v. Herriford, 114. 
 Leshey v. Gardner, 444. 
 Leslie v. Joyner, 247, 242, 253. 
 Lester v. Abbott, 389, 390. 
 Leupold v. Krause, 620. 
 Levering v. Norvell, 288, 319. 
 Levy v. Wallis, 519. 
 Levy v. Welsh, 125. 
 Lewis v. Adams, 108, 110, 111. 
 Lewis v. Caperton, 47. 307, 310, 
 
 446, 488. 
 Lewis v. Castleman, 446. 
 Lewis v. Lamphere,-256, 538. 
 Lewis v. Love, 35, 49, 58, 327, 446. 
 Lewis v. Smith, 519. 
 Lewis v. Stevenson, 111. 
 Lewis v. Swift, 113. 
 Lewis v. Whittemore, 144, 184. 
 Lewis v. Wilcox, 176, 587. 
 Lewkner v. Freeman, 39, 184, 316, 
 
 504, 531. 
 Lichyv. Ferry, 620. 
 Lillard v. McGee, 11, 35, 37, 49, 
 
 504, 531. 
 
 Lincoln v. McLaughler, 279. 
 
 Lillie v. McMillan, 604, 605. 
 
 Lindle v. Neville, 44, 225. 
 
 Lindon v. Sharp, 111. 
 
 Linn v. Wright, 20, 344, 379, 604. 
 
 Lininger v. Raymond, 358. 
 
 Linton v. Butz, 170. 
 
 Lion, The, 459. 
 
 Lipperd v. Edwards, 197, 263, 551. 
 
 Lippincott v. Barker, 435. 
 
 Lishy v. Perry, 245. 
 
 Lister v. Turner, 534. 
 
 Litchfield v. Pelton, 359, 467, 559. 
 
 Litchfield v. White, 421. 
 
 Little v. Eddy, 194. 
 
 Littleton v. Littleton, 315. 
 
 Livermore v. Boutelle, 327, 505. 
 
 Livermore v. Jenckes, 511, 513. 
 
 Livermore v. McNair, 190. 
 
 Livermore v. Northrop, 223, 372, 
 
 378, 384, 385. 583. 
 Livingston v. Bell, 437. 
 Livingston v. Littell, 121. 
 Livingston v. Mclnlay, 232. 
 Lloyd v. Bunce, 320. 
 Lloyd v. Fulton, 290, 292. 
 Lloyd v. Williams, 57, 59, 184, 189. 
 Lockett's Adm. v. James, 481, 621. 
 Lockard v. Nash, '320, 562. 
 Lockerson v. Stillwell, 444. 
 Lockhard v. Beckley, 241, 280, 316, 
 
 604. 
 Lockhart v. Wyatt, 336, 339. 
 Lockwood v. Nelson, 302. 
 Lockyer v. De Hart, 279. 
 Lodge v. Samuels, 125. 
 Loeffes v. Lewen, 304. 
 Loeschigk v. Baldwin, 359. 
 Loeschigk v. Hatfield, 225, 316, 320, 
 
 324. 
 Loeschigk v. Jacobson, 387. 
 Logan v. Brick, 499. 
 Loker v. Haynes, 594. 
 Lokerson v. Stillwell, 448. 
 London v. Parsley, 350, 371. 
 Long v. Knapp, 165, 167. 
 Long v. Wright, 446. 
 Look v. Comstock, 177. 
 Loomis v. Smith, 186. 
 Loomis v. Tifft, 540, 541. 
 Lord v. Fisher, 185. 
 Lord v. Poor, 253. 
 Loring v. Dunning, 45, 606. 
 Loring v. Vulcanized Gutta Percha 
 
 Co., 350. 
 
TABLE OF CASES CITED. 
 
 xliii 
 
 Lormore v. Campbell, 309, 319, 
 
 587. 
 Lott v. De Graffenreid, 213, 560, 
 
 565. 
 Loughbridge v. Bowland, 588. 
 Louisiana v. Baillio, 112. 
 Love v. Geyer, 543. 
 Love v. Mickals, 445. 
 Lovejoy v. Irelan, 548. 
 Lovick v. Crowder, 519, 520, 522. 
 Low v. Carter, 213, 310. 
 Low v. Graydon, 192, 388, 435. 
 Low v. Marco, 242, 530. 
 Lowrie v. Stewart, 184. 
 Lowry v. Coulter, 186. 
 Lowry v. Fisher, 279, 322, 481, 510. 
 Lowry v. Howard, 38, 205. 
 Lowry v. Orr, 474. 
 Lowry v. Pinson, 200, 207, 504. 
 Lucas v. Birdsey,' 146. 
 Luckenbach v. Brickenstein, 166, 
 
 184. 
 Ludden v. Hazen, 236. 
 Ludlow v. Hurd, 64, 137, 145. 
 Ludwig v. Fuller, 149, 150. 
 Ludwig v. Highley, 178. 
 Luers v. Brunges, 311. 
 Luff v. Horner, 215. 
 Luke v. Billers, 463. 
 Lukins v. Aird, 24, 217. 
 Lund v. Life A. Society, 205. 
 Lupton v. Cutter, 180, 183, 333. 
 Lush v. Wilkinson, 279, 282, 324. 
 Lutton v. Hesson, 594. 
 Lyman v. Cessford, 315, 316, 317, 
 
 319, 603. 
 Lyman v. Place, 250, 555. 
 Lynch v. Raleigh, 315, 327, 541. 
 Lvnch v. Roberts, 544. 
 Lynch v. Welsh, 479, 609. 
 Lynde v. McGregor, 43, 243, 484, 
 
 582, 590. 
 Lynde v. Melvin, 172, 175. 
 Lyndon v. Belden, 175. 
 Lyne v. Bank of Kentucky, 178, 
 
 269, 275, 279, 281, 307, 311, 
 
 317, 320, 322. 
 Lynn v. Le Gierse, 476. 
 Lyon v. Boiling, 253. 
 Lyon v. Robbins, 474, 571. 
 Lyon v. Rood, 201. 
 Lyon v. Yates, 462. 
 Lyons v. Platner, 417. ( 
 
 Lyte v. Perry, 10. 
 
 Maberry v. Shisler, 405, 511. 
 Macdoua v. Swiney, 80, 95, 111, 
 
 127. 
 Macintosh v. Corner, 357, 384. 
 Mackason's Appeal, 214, 244, 325. 
 Mackay v. Douglass, 271, 317. 
 Mackie v. Cairns, 342, 362, 364, 
 
 399, 488. 
 Macomber v. Parker. Ill, 125, 217, 
 
 236. 
 Madden v. Day, 285, 316, 322, 323. 
 Maennel v. Murdock, 390, 414, 421, 
 
 423, 439, 440. 
 Magawley's Trust, 239, 573. 
 Magee v. Carpenter, 157. 
 Magee v. Raiguet, 187. 
 Magnes v. Atwater, 162. 
 Magniac v. Thompson, 296, 300, 
 
 302, 303. 
 Maher v. Bovard, 224, 444. 
 Mahaney v. Lazier, 574. 
 Mahoney v. Hunter, 220. 
 Maiders v. Culver, 484, 570. 
 Main v. Lynch, 29, 403. 
 Mair v. Glennie, 169. 
 Major v. Hill, 347. 
 Malcolm v. Hall, 392. 
 Malcolm v. Hodges, 363, 437. 
 Maley v. Barrett, 463. 
 Mallonee v. Horan, 481, 485. 
 Malone v. Hamilton, 158, 213. 
 Maloney v. Beverly, 455. 
 Mamlock v. White, 463. 
 Manchester v. McKee, 533, 539, 
 
 585. 
 Manchester v. Smith, 253. 
 Mandel v. Peay, 361, 407, 594. 
 Manderbach v. Mock, 250. 
 Manders v. Manders, 278, 279, 324. 
 Maney v. Killough, 120, 157. 
 Mangum v. Finucane, 186, 191, 313. 
 Mangum v. Hamlet, 462. 
 Manhattan Co. v. Evertson, 474, 
 
 481, 493, 525. 
 Manhattan Co. v. Osgood, 281, 284, 
 
 504, 591, 593. 
 Manly, In re, 123, 127, 128, 131. 
 Mann v. Flower, 125, 484. ■ 
 Mann v. Whitbeck, 363, 421. 
 Manny v. Logan, 331, 395. 
 Mansfield v. Dyer, 498. 
 Mansir v. Crosby, 582. 
 Manton v. Moore, 144, 148, 164. 
 Maples v. Burnside, 22. 
 
xliv 
 
 TABLE OF CASES CITED. 
 
 Maples v. Maples, 158, 184. 
 
 Maples v. Snyder, 458. 
 
 Marbury v. Brooks, 189, 332, 349, 
 
 361, 362, 394, 396. 
 Marcy v. Clark, 505. 
 Marden v. Babcock, 22, 226, 594. 
 Marks v. Hill, 390,402, 405, 415, 416. 
 Marlatt v. Warwick, 448. 
 Marlow v. Orgill, 59. 
 Marr v. Rucker, 526, 563. 
 Marriott v. Givens, 43, 60, 213, 261, 
 
 486, 530, 614. 
 Marsh v. Armstrong, 494. 
 Marsh v. Bennett, 390, 427. 
 Marsh v. Davis, 255, 581. 
 Marsh v. Fuller, 322. 
 Marsh v. Hampton, 589. 
 Marsh v. Lawrence, 156. 
 Marshall v. Croom, 56, 58, 509, 560, 
 
 612. 
 Marshall v. Green, 50, 53, 58. 
 Marshall v. Hutchinson, 194, 310. 
 Marshall v. Marshall, 242, 532. 
 Marshall v. McDaniel, 308, 309. 
 Marshall v. Morris, 300, 465. 
 Marston v. Baldwin, 151. 
 Marston v. Brackett, 446. 
 Marston v. Coburn, 333, 347. 
 Marston v. Marston, 327, 474. 
 Marston v. Vultee, 30, 127. 
 Martel v. Somers, 245, 494, 495, 
 
 563, 620. 
 Martin v. Bolton, 445. 
 Martin v. Cowles, 491, 492. 
 Martin v. Evans, 279. 
 Martin v. Hill, 511. 
 Martin v. Lincoln, 292. 
 Martin v. Maddox, 125. 
 Martin v. Martin, 445, 446. 
 Martin v. Mathiot, 151. 
 Martin v. Michael, 536. 
 Martin v. Oliver, 278, 320. 
 Martin v. Podger, 88, 111, 463. 
 Martin v. Potter, 515. 
 Martin v. Rexroad, 198. 
 Martin v. Rice, 125. 
 Martin v. Root, 255. 
 Martin v. Smith, 564, 565. 
 Martin v. Walker, 471, 504, 508, 
 
 550, 555. 
 Martin v. White, 112. 
 Martindale v. Booth, 97, 111, 156, 
 
 157. 
 Martyn v. McNamara, 279, 282, 
 
 498. 
 
 Mason v. Baker, 35, 317, 446, 456. 
 
 Mason v. Bond, 108, 111. 
 
 Mason v. Rogers, 317. 
 
 Massie v. Engart, 58, 201, 203. 
 
 Master v. Webb, 120. 
 
 Mateer v. Hissim, 269, 279, 290, 
 
 491, 492, 499. 
 Mathes v. Dobschuetz, 243. 
 Matson v. Melchor, 203, 281. 
 Matter v. Potter, 407. 
 Matthai v. Heather, 315. 
 Matthews v. Buck, 452, 483. 
 Matthews v.Feaver, 240, 294, 295, 
 
 533. 
 Matthews v. Jordan, 220, 292. 
 Matthews v. Poultney, 344, 360, 
 
 593. 
 Matthews v. Rice, 227. 
 Matthews v. Torinus, 277. 
 Matthews v. Warne, 519, 522. 
 Mattingly v. Nye, 319, 576, 577. 
 Mattingly v. Walke, 53, 507. 
 Mattison v. Demarest, 18, 358, 389, 
 
 593. 
 Mauglin v. Tyler, 351, 412, 436, 
 
 442. 
 Mauldin v. Armistead, 339. 
 Mauldin v. Mitchell, 72, 76, 112, 
 
 152, 155, 174. 
 Mayberry v. Neely, 292. 
 Mayberry v. Shister, 514. 
 Mayer v. Clark, 112, 589. 
 Mayer v. Pulliam, 405. 
 Mayer v. Webster, 115. 
 Mayer v. Wood, 527. 
 Mayfleld v. Kila;our, 184, 186, 594, 
 
 596. 
 Mayor, Ex parte, 300. 
 Mayou, Ex parte, 230, 259. 
 Mays v. Rose, 546. 
 McAllister v. Marshall, 363, 399, 
 
 400, 402, 467. 
 McAlpine v. Sweetzer, 18. 
 McAnally v. O'Neal, 233, 281. 
 McArthur v. Hoysradt, 573, 606. 
 McAulay v. Earnhart, 585. 
 McBride v. Bohanan, 434. 
 McBride v. McCelland, 134. 
 McBride v. Thompson, 261, 589, 
 
 590. 
 McBroom v. Rives, 24, 184. 
 McBurnie, Ex parte. 296, 299, 300, 
 
 302. 
 McCabe v. Brayton, 590. 
 McCabe v. Snyder, 496. 
 
TABLE OF OASES CITED. 
 
 xlv 
 
 McCain v. Wood, 36, 594. 
 MoCall v. Hinkley, 431, 433, 434. 
 McCallie v. Walton, 350, 414, 418. 
 McCalmont v. Lawrence, 535, 567. 
 McCarthy v. McQuade, 114, 115. 
 McCartney v. Bostwick, 538, 539. 
 McCartney v. Welch, 386. 
 McCaskle v. Amarine, 43, 594. 
 McCasland v. Carson, 48. 
 McCaulay v. Rndes, 308, 552. 
 McCausland v. Ralston, 455. 
 McClelland v. Remsen, 213, 351, 
 
 405. 
 McClenachan's Case, 285, 288. 
 McClenney v. McClenney, 560. 
 McClenny v. Floyd, 456. 
 McCleskey v. Leadbetter, 446. 
 McCloskey v. Cyphert, 253. 
 McClune v. Cain, 235. 
 McClurg v. Allen, 417. 
 McClung v. Bergfleld, 410, 411, 414. 
 McClure v. Ege, 517, 520. 
 McClurg v. Lecky, 364, 399, 402, 
 
 488. 
 McColgan v. Hopkins, 394. 
 McConihe v. Sawyer, 327, 600, 605. 
 McConnell v. Brown, 37. 
 McConnel v. Dickson, 534. 
 McConnell v. Martin, 223, 281, 592. 
 McCord v. McCord, 590. 
 McCord v. Moore, 404. 
 McCorkle v. Hammond, 227. 
 McCormick v. Hyatt, 197. 
 McCoy v. Reed, 520. 
 McCoy v. Watson, 546. 
 McCrassley v. Haslock, 43, 127, 
 
 609. 
 McCreery v. Pursley, 477, 497. 
 McCulloch v. Hutchinson, 12, 40, 
 
 42. 
 McCullock v. Doak, 52, 592. 
 McCullough v. Colby, 536. 
 McCullough v. Porter, 235. 
 McCullough v. Sommerville, 352, 
 
 389, 394. 
 McCully v. Shackharuer, 216. 
 McCutchen v. Peigne, 52, 549, 550. 
 MeDaniels v. Colvin, 231. 
 McDermott v. Barnum, 236. 
 McDermott v. Blois, 540. 
 McDonald v. Beach, 230. 
 McDonald v. Johnson, 476. 
 McDonald v. Kirby, 224. 
 McDowell v. Cochran, 242, 532, 
 
 541, 549. 
 
 McDowell v. Goldsmith, 51, 509, 
 
 560, 561, 575, 578, 581. 
 McDowell v. Rissell, 585. 
 McElfatrick v. Hicks, 43, 582, 587. 
 McElwain v. Willis, 537, 551, 552. 
 McElwes v. Sutton, 323. 
 McErwin v. Benning, 504. 
 McFadden v. Mitchell, 45, 279. 
 McFarlau v. English, 135. 
 McFarland v. Bain, 254. 
 McFarland v. Birdsall, 405, 427. 
 McFarland v. Farmer, 235. 
 McFarland v. Goodman, 482. 
 McGavock v. Deery, 231. 
 McGay v. Keilback, 255, 256. 
 McGee v. Campbell, 461, 462. 
 McGill v. Harman, 226, 609. 
 McGinnis v. Curry, 306, 311. 
 McGintry v. Reeves, 594. 
 McGowan v. Hoy, 156, 463. 
 McGregor v. Chase, 185. 
 McGuire v. Faber, 459. 
 McGuire v. Miller, 446. 
 Mcllvoy v. Kennedy, 52, 590, 592. 
 Mclnstry v. Tanner, 162. 
 Mclntire v. Benson, 422, 423. 
 Mcintosh v. Bethune, 51, 56. 
 McKaig v. Jones, 514. 
 McKee v. Gilchrist, 470, 474, 585, 
 
 614, 615. 
 McKee v. Jones, 237. 
 McKenty v. Gladwin, 227, 486. 
 McKibbin v. Martin, 19, 70, 137, 
 
 141, 142, 165, 166. 
 McKinley v. Combs, 334, 339, 534, 
 
 549, 555. 597. 
 McKinney v. Rhoads, 347, 378, 581, 
 
 592. 
 McKinster v. Babcock, 41, 43, 596. 
 McLachlan v. Wright, 38. 
 McLane v. Johnson, 327, 445, 580, 
 
 581. 
 McLaren v. Mead, 250. 
 McLaren v. Thompson, 197, 225. 
 McLaughlin v. Bank of Potomac, 
 
 26, 503, 510, 552, 575. 
 McLaughlin v. McLaughlin, 444, 
 
 445. 
 McLaurie v. Partlow, 223, 309. 
 McLean v. Button. 219. 
 McLean v. Lafayette Bank, 21, 51. 
 McLean v. Morgan, 52, 504. 
 McLean v. Weeks, 295. 
 McLemore v. Knuckolls, 252, 279, 
 
 508. 
 
xlvi 
 
 TABLE OF CASES CITED. 
 
 McLure v. Ashby, 554, 564, 565. 
 McMahan v. Morrison, 179, 225. 
 McMaster v. Campbell, 257, 478, 
 
 545. 
 McMeekin v. Edmonds, 268, 295, 
 
 606, 616. 
 McMenomy v. Ferrers, 394. 
 McMenomy v. Roosevelt, 184. 
 McMinn v. Whelan, 536. 
 McNaughtin v. Lamb, 541, 570. 
 McNeal v. Glenn, 36, 42, 48, 49, 
 
 558, 596, 598. 
 McNeal v. Smith, 521. 
 McNew v. Smith, 543. 
 McNutt v. Hobson, 258. 
 McPherson v. Kingsbaker, 315. 
 McQuinnay v. Hitchcock, 53, 112, 
 
 184. 
 McRea v. Branch Bank, 36, 57, 550, 
 
 559 
 McVick'er v. May, 135, 136, 154. 
 McWhorter v. Huling, 471, 477, 
 
 478. 
 McWilliams v. Rodgers, 39, 184, 245 
 Mead, Peter, In re, 614, 618. 
 Mead v. Combs, 485, 486, 612. 
 Mead v. Gregg, 241, 320. 
 Mead v. Noyes, 135. 
 Mead v. Phillips, 121, 348, 361, 368, 
 
 379, 384, 426, 595. 
 Meade v. Smith, 168, 186, 228. 
 Mean v. Hicks, 574. 
 Means v. Feaster, 26, 564, 600. 
 Means v. Hapgood, 513, 514. 
 Mechanics' Bank v. Dakin, 536. 
 Mechanics' Bank v. Gorman, 437. 
 Mechanics' Bank v. Taylor, 308. 
 Mechanics' Nat'l Bank v. Burnet 
 
 M'f'g Co., 264, 265. 
 Meeker v. Harris, 186, 193, 553. 
 Meeker v. Sanders, 334, 343, 360, 
 
 369, 414. 
 Meeker v. Wilson, 150, 169. 
 Meggott v. Mills, 62, 85, 149. 
 Meixell v. Williamson, 197. 
 Mellen v. Ames, 459. 
 Mellon v. Mulvey, 317, 319. 
 Melody v. Chandler, 128. 
 Melville v. Brown, 536. 
 Menton v. Adams, 192. 
 Mentz v. Haman, 517. 
 Mercer v. Miller, 313. 
 Merchant v. Bunnel, 250. 
 Merchants' Bank v. Newton, 197, 
 
 201. 
 
 Meredith v. Benning, 528. 
 Merrick v. Butler, 455. 
 Merrick v. Henderson, 394. 
 Merrill v. Dawson, 120, 156, 158. 
 Merrill v. Englesby, 342, 394. 
 Merrill v. Johnson, 292. 
 Merrill v. Locke, 36, 37, 56, 57, 
 
 178 594 
 Merrill ' v. Meacham, 327, 483, 
 
 581. 
 Merrill v. Rinker, 151, 152, 235, 
 
 236, 316. 
 Merrill v. Williamson, 52, 594. 
 Merritt v. Lyon, 160, 161. 
 Merritt v. Miller, 173. 
 Merry v. Bostwick, 44, 50, 58. 
 Merry v. Freeman, 541, 549. 
 Messerve v. Dyer, 508. 
 Metcalf v. Van Brunt, 340, 348, 
 
 422. 
 Metropolitan Bank v. Durant, 45, 
 
 57, 260, 264. 
 Metzger, In re, 507. 
 Meux v. Anthony, 534, 543. 
 Meux v. Howell, 22, 354, 393. 
 Meyer v. Gorham, 156, 157. 
 Meyer v. Mohr, 286, 481. 
 Meyer v. Simpson, 35. 
 Meyers, In re, 507, 544. 
 Michael v. Gay, 209, 215, 556. 
 Michie v. Planters' Bank, 517. 
 Middlecome v. Marlow, 209, 277, 
 
 295, 308. 
 Middleton v. Carrol, 113. 
 Middleton v. Hoff, 113. 
 Middleton v. Sinclair, 49, 58, 476. 
 Milburn v. Waugh, 125. 
 Miles v. Edelen, 162, 578. 
 Miles v. Williams, 238. 
 Millar v. Babcock, 462. 
 Millard v. Hall, 112, 155. 
 Miller v. Bryan, 131, 197. 
 Miller v. Conklin, 429, 434. 
 Miller v. Dayton, 508, 538, 544. 
 Miller v. Desha, 279. 
 Miller v. Finn, 600. 
 Miller v. Fraley, 261, 557. 
 Miller v. Garman, 134, 137, 149, 
 
 175, 177. 
 Miller v. Hall, 548. 
 Miller v. Halsey, 403, 573. 
 Miller v. Howry, 225. 
 Miller v. Johnson, 576, 577. 
 Miller v. Jones, 127. 
 Miller v. Kirby, 195. 
 
TABLE OF CASES CITED. 
 
 xlvii 
 
 Miller v. Lockwood, 43, 108, 111, 
 
 128, 231, 232. 
 Miller v. Marckle, 457. 
 Miller v. Miller, 315, 320, 509, 576, 
 
 577. 
 Miller v. Morgan, 112. 
 Miller v. Pancoast, 111, 120. 
 Miller v. Pearce, 279. 
 Miller v. Sauerbier, 55, 232. 
 Miller v. Specht, 257. 
 Miller v. Sherry, 474, 552, 570, 571, 
 
 572. 
 Miller v. Stetson, 405. 
 Miller v. Thompson, 279, 498. 
 Miller v. Tolleson, 306, 476, 558, 
 
 614, 615. 
 Miller v. Wilson, 241, 285, 287, 481. 
 Millett v. Pottinger, 57. 
 Milliard v. Hall, 153. 
 Mill River Association v. Claflin, 
 
 242. 
 Mills v. Argall, 342, 352. 
 Mills v. Block, 536. 
 Mills v. Camp, 132, 523. 
 Mills v. Carnley, 47, 359. 
 Mills v. Haines, 197. 
 Mills v. Howeth, 201, 591. 
 Mills v. Levy, 434. 
 Mills v. Mills, 220. 
 Mills v. Morris, 323. 
 Mills v. Thompson, 139, 589. 
 Mills v. Walton, 115. 
 Mills v. Warner, 145, 146, 177. 
 Milne v. Henry, 113, 132, 133, 136, 
 
 148. 
 Miner v. Phillips, 587, 593, 599. 
 Miner v. Warner, 219, 474, 505. 
 Miners' National Bank Appeal, 
 
 395. 
 Minister v. Price, 131. 
 Mitchell v. Beal, 23, 46, 47, 120. 
 Mitchell v. Berry, 279. 
 Mitchell v. Byrns, 281. 
 Mitchell v. Gazzam, 395. 
 Mitchell v. McKibbin, 190. 
 Mitchell v. Seitz, 233. 
 Mitchell v. Stetson, 217. 
 Mitchell v. Stiles, 342, 382. 
 Mitchell v. Willock, 378. 
 Mitchell v. Winslow, 125. 
 Mittnacht v. Kelley, 125. 
 Mixell v. Lutz, 316, 320. 
 Moale v. Buchanan, 468. 
 Moffat v. Ingham, 338, 379, 570. 
 Moffat v. McDowell, 394, 559. 
 
 Mohawk Bank v. Atwater, 268, 288, 
 
 535. 
 Moir v. Brown, 344, 348. 
 Moliter v. Robinson, 112. 
 Molm v. Barton, 112. 
 Monell.v. Scherrick, 35, 44, 209. 
 Monroe v. Hussey, 113. 
 Monroe v. May, 186, 245, 246. 
 Monroe v. Smith, 328, 471. 
 Monteith v. Bax, 22, 306, 311. 
 Montgomery v. Galbraith, 419. 
 Montgomery v. Hunt, 171. 
 Montgomery v. Kirksey, 47, 56, 
 
 121. 
 Montgomery v. Wright, 514. 
 Moody v. Burton, 528. 
 Moody v. Pry, 445. 
 Moog v. Benedicks, 44, 112. 
 Moore v. Besse,.247. 
 Moore v. Blondheim, 319, 594. 
 Moore v. Bonnell, 514. 
 Moore v.Collins, 347, 401, 405, 406. 
 Moore v. Kelley, 171. 
 Moore v. Kidder, 527. 
 Moore v. McDuffy, 336. 
 Moore v. Meek, 456. 
 Moore v. Minerva, 445. 
 Moore v. Rycault, 308. 
 Moore v. Sexton, 499. 
 Moore v. Smith, 378. 
 Moore v. Spence, 279, 510. 
 Moore v. Tarlton, 614. 
 Moore v. Thompson, 455. 
 Moore v. Willett, 512. 
 Moore v. Wood, 217, 219. 
 Moran v. Dawes, 527. 
 Moreland v. Atchison, 281, 553. 
 Morewood v. Wilkes, 505. 
 Morey v. Forsyth, 459. 
 Morgan v. Alvey, 600. 
 Morgan v. Biddle, 168. 
 Morgan v. Bogue, 119, 213, 553. 
 Morgan v. McLelland, 281. 
 Morgan v. Potter, 305. 
 Morgan v. Republic, 112. 
 Morgantham v. Harris, 395. 
 Moritz v. Hoffman, 292, 324, 509. 
 Morrill, Geo. P., In re, 487. 
 Morrill v. Morrill, 524. 
 Morris v. Allen, 260, 263, 264, 
 
 266. 
 Morris v. House, 462. 
 Morris v. Hyde, 175. 
 Morris v. Morris, 445. 
 Morris v. Tillson, 184. 
 
xlviii 
 
 TABLE OF OASES CITED. 
 
 Morris Canal Co. v. Steams, 38, 45, 
 
 595. 
 Morrison v. Abbott, 245. 
 Morrison v. Atwell, 390, 421. 
 Morrison v. Morrison, 219, 505. 
 Morse v. Aldrich, 198. 
 Morse v. Powers, 171, 173. 
 Morse v. Slason, 186, 187. 
 Morsell v. Boden, 510. 
 Morss v. Purvis, 474. 
 Morton v. Ragan, 146, 165, 245. 
 Moseley v. Gainer, 184, 200. 
 Moseley v. Moseley, 446, 458. 
 Moss v. Dearing, 595. 
 Moss v. Humphrey, 403. 
 Motley v. Sawyer, 44, 310. 
 Mott v. Danforth, 503, 524. 
 Mott v. McNeil, 26, 113, 147, 
 
 154. 
 Mountford v. Ranie, 507. 
 Mountford v. Taylor, 531. 
 Mower v. Hanford, 364, 583, 599. 
 Mowry's Appeal, 328. 
 Mowry v. Crocker, 512, 515. 
 Mowry v. Schroder, 528. 
 Moyer v. Dewey, 545. 
 Mugge v. Ewing, 541. 
 Muir v. Leitch, 521. 
 
 Mulford v. , 448. 
 
 Mulford v. Peterson, 529. 
 Mulford v. Shirk, 403. 
 Mulford v. Stratton, 260, 521. 
 Mulford v. Tunis, 477, 592, 593. 
 Mullanphy Savings Bank v. Lyle, • 
 
 475. 
 Mullen v. Wilson, 317, 476. 
 Mulloy v. Paul, 563. 
 Munima v. Weaver, 277. 
 Murphy v. Abraham, 224, 303, 304, 
 
 315. 
 Murphy v. Bell, 414, 419. 
 Murphy v. Hubert, 444, 448, 456. 
 Murphy v. Moore, 500. 
 Murray v. Jones, 496. 
 Murray v. Riggs, 181, 182, 183, 342, 
 
 363, 393, 394, 399, 405, 427, 
 
 607, 615, 616. 
 Musselman v. Kent, 531, 562, 563. 
 Mussey v. Noyes, 331, 332, 363, 
 
 394, 414, 427. 
 Myers v. Fenn, 424, 560. 
 Myers v. Harvey, 151, 162, 163. 
 Myers v. King, 281, 
 Myers v. Kinzie, 361, 559, 587. 
 Myers v. Leinster, 467. 
 
 Myers v. Sherift, 566. 
 
 Myers v. Woods, 143, 145, 149. 
 
 Nailer v. Young, 127, 347. 
 
 Nairn v. Prouse, 299. 
 
 Nash v. Ely, 170. 
 
 National Bank v. Sackett, 352. 
 
 National Bank v. Sprague, 185, 230, 
 
 241,250, 315, 501. 
 Naylor v. Baldwin, 316. 
 Naylor v. Fosdick, 335. 
 Neal v. Peden, 589. 
 Neal v. Williams, 492. 
 Neale v. Day, 238, 241, 489. 
 Neally v. Ambrose, 417. 
 Neate v. Latimer, 137. 
 Neece v. Haley, 176. 
 Neeley v. Wood, 446. 
 Nellis v. Clark, 442, 455. 
 Nelson v. Smith, 58. 
 Nesbit v. Digby, 48, 57. 
 Neuffer v. Pardue, 232, 616. 
 Neusbaum v. Klein, 539. 
 Neustadt v. Joel, 534. 
 New Albany Insurance Co. v. Wil- 
 
 coxson, 127. 
 New Albany R. R. Co. v. Huff, 396. 
 
 397, 405, 408. 
 New England Marine Insurance 
 
 Co. v. Chandler, 41, 215. 
 New Haven Steamboat Co. v. Van- 
 
 derbilt, 315. 
 Newdigate v. Lee, 187, 539, 570. 
 Newell v. Morgan, 242, 532, 570. 
 Newell v. Newell, 444. 
 Newlin v. Garwood, 323. 
 Newlin v. Lyon, 589. 
 Newlin v. Osborne, 494. 
 Newman v. Bagley, 225, 391, 512, 
 
 514. 
 Newman v. Cordell, 53, 54, 56, 198, 
 
 268, 594, 600, 601. 
 Newman v. Willetts, 482, 535. 
 Newsom v. Roles, 216. 
 Newson v. Douglass, 446. 
 Newson v. Lycan, 446. 
 Newstead v. Searles, 298. 
 Nicholas v. Murray, 544. 
 Nicholas v. Ward, 315. 316, 320. 
 Nicholl v. Mumfoid, 332, 335, 393. 
 Nicholls v. McEwen, 374, 393, 425. 
 Nichols v. Patten, 600. 
 Nicholson v. Leavitt, 21, 182, 356, 
 
 368, 378, 379, 389, 411, 412, 
 
 417, 511, 566, 593. 
 
TABLE OF CASES CITED. 
 
 xlix 
 
 Nickodemus v. Nickodemus, 448. 
 Nicol v. Crittenden, 22, 54, 201, 
 
 203. 
 Nightingale V.Harris, 224, 384, 385, 
 
 403, 435, 438, 439, 441. 
 Niller v. Johnson, 319, 509. 
 Nimnio v. Kuykendall, 354. 
 Nims v. Bigelow, 308, 310. 
 Niolon v. Douglass, 181, 435, 573. 
 Nippe's Appeal, 278, 610. 
 Niver v. Best, 455. 
 Nix v. Nix, 505. 
 Noble v. Coleman, 122. 
 Noble v. Hines, 554. 
 Noble v. Holmes, 463. 
 Noble v. Noble, 444. 
 Noble v. Smith, 512, 514. 
 Norcut v. Dodd, 239, 240, 282, 533, 
 
 573. 
 Norris v. Bradford, 235, 236. 
 Norris v. Norris, 455. 
 Norris v. Persons, 198. 
 NortcliU'e v. Warburton, 188, 205. 
 North v. Belden, 42. 
 North v. Bradway, 241, 551. 
 North v. Crowell, 120. 
 North v. Shearn, 245. 
 North American Ins. Co. v. Gra- 
 ham, 536. 
 Northampton Bank v. Whiting, 30. 
 Norton v. Cobb, 395. 
 Norton v. Doolittle, 155, 175. 
 Norton v. Kearney, 343, 363, 367, 
 
 414, 587. 
 Norton v. Malony, 223. 
 Norton v. Norton, 23, 270, 271, 
 
 272, 292, 295, 324, 445, 621. 
 Norton v. Pattee, 458. 
 Nostrand v. Atwood, 333, 435. 
 Nouvet v. Bollinger, 507. 
 Noyes v. Hickock, 331, 394. 
 Nulton v. Isaacs, 281. 
 Numan v. Kapp, 522. 
 Nunn v. Wilsmore, 209, 295, 304, 
 
 305. 
 Nutter v. Harris, 112. 
 Nye v. Van Husan, 344, 389, 415, 
 
 421. 
 
 O'Brien v. Browning, 569. 
 O'Brien v. Chamberlain, 120. 
 O'Brien v. Coulter, 281, 498, 541. 
 O'Connor v. Bernard, 23, 58, 269, 
 , 322, 323, 325, 327, 
 3, 526. 
 
 O'Daniel v. Crawford, 275, 290. 
 
 O'Donnell v. Segar, 245. 
 
 O'Leary v. Walter, 250. 
 
 O'Neil v. Chandler, 455. 
 
 O'Neil v. Orr, 209. 
 
 O'Neil v. Salmon, 391, 392, 469. 
 
 Oakover v. Pettus, 35. 
 
 Oatis v. Brown, 589. 
 
 Ober v. Howard, 444. 
 
 Oberholser v. Greenfield, 527, 534. 
 
 Ocean Nat'l Bank v. Hodges, 223. 
 
 Ocean Nat'l Bank v. Olcott, 538. 
 
 Ocoee Bank v. Nelson, 48, 185, 
 
 205, 218. 
 Odell v. Flood, 311. 
 Oden v. Rippettoe, 583. 
 Odenheimer v. Hanson, 532, 533. 
 Odronaux v. Helis, 445. 
 Ogden v. Hesketh, 463. 
 Ogden v. Peters, 370, 373, 378, 379, 
 
 414, 587, 594. 
 Ogden v. Prentice,459, 461,472, 509. 
 Ogle v. Lichleberger, 617. 
 Okie v. Kelly, 467, 469, 493. ^ 
 Oliver Lee & Co.'s Bank v. Talcott, 
 
 24, 401. 
 Oliver v. Eaton, 125. 
 Oliver v. Moore, 226, 256, 276, 567, 
 
 616. 
 Olliver v. King, 465. 
 Olmstead v. Herrick, 422. 
 Olmstead v. Mattison, 185, 191. 
 Olney v. Tanner, 360, 379, 415. 
 Ontario Bank v. Root, 566. 
 Orendorf v. Budlong, 497, 546. 
 Oriental Bank v. Haskins, 42, 217, 
 
 483. 
 Orlabar v. Harwar, 111, 444. 
 Orr v. Gilmore, 588, 621. 
 Osborn v. Adams, 511. 
 Osborne v. Moss, 445, 461, 524. 
 Osborne v. Tuller, 113, 152, 378. 
 Osen v. Sherman, 114. 
 Osgood v. Manhattan Co., 575. 
 Ostrander v. Fay, 128. 
 Otis v. Sill, 114. 
 Overman v. Quick, 125, 128. 
 Overton v. Hollinshade, 342, 346, 
 
 383, 404, 408. 
 Overton v. Morris, 36, 37, 52, 263. 
 Owen v. Arvis, 48, 52. 
 Owen v. Body, 416. 
 Owen v. Dixon, 446, 461, 462. 
 Owen v. Sharp, 448. 
 Oxford's Case, 22. 
 
1 
 
 TABLE OF CASES CITED. 
 
 Pacheco v. Hunsacker, 145, 148. 
 
 Pack v. Bathurst, 244. 
 
 Pagev. Broom, 339. 
 
 Page v. Carpenter, 113, 146. 
 
 Page v. Dixon, 603. 
 
 Page v. Goodman, 242, 530. 
 
 Page v. Kendrick, 319. 
 
 Page v. Smith, 395, 396. 
 
 Page v. Weymouth, 343. 
 
 Paget v. Perchard, 95, 111, 130. 
 
 Paige v. O'Neil, 459, 463, 492. 
 
 Paine v. Woodland, 313. 
 
 Palmer v. Clarke, 517. 
 
 Palmer v. Giles, 363, 364, 434, 488, 
 
 495. 
 Palmer v. Henderson, 197. 
 Palmer v. Myers, 352. 
 Paper Works v. Willett, 14, 589, 
 
 592, 593. 
 Paris v. Vail, 151, 236. 
 Park v. Harrison, 48. 
 Parker v. Barker, 43. 
 Parker v. Crittenden, 203, 483, 492. 
 Parker v. Freeman, 475. 
 Parker v. Kendricks, 140, 142. 
 Parker v. Holmes, 616. 
 Parker v. Nichols, 220. 
 Parker v. Pattee, 42. 
 Parker v. Price, 343. 
 Parker v. Proctor, 291. 
 Parker v. Tiffany, 452. 
 Parker v. Waugh, 519. 
 Parkhurst v. McGraw, 559, 566, 
 
 578, 603, 604. 
 Parkinson v. Hanna, 203. 
 Parkman v. Welch, 282, 327, 493, 
 
 559, 560. 
 Parnell v. Howard, 184. 
 Parrish v. Danford, 37, 52, 197, 
 
 200. 
 Parrish v. Murphree, 282, 285, 286, 
 
 287, 292, 322. 
 Parsons v. McKnight, 35, 58. 
 Parstowe v. Weedon, 541. 
 Partee v. Matthews, 537. 
 Partelo v. Harris, 583. 
 Parton v. Yates, 223. 
 Partridge v. Arnold, 253. 
 Partridge v. Gopp, 221, 240, 268, 
 
 272, 273, 274, 276, 296, 533. 
 Partridge v. Stokes, 51, 55, 322, 
 
 327. 
 Partridge v. Wooding, 145. 
 Parvin v. Capewell, 313. 
 Pary's Appeal, 520. 
 
 Pashby v. Mandrigs, 281. 
 Passmore v. Eldridge, 191. 
 Passumpsic Bank v. Strong,- 394. 
 Paton v. Westervelt, 520. 
 Patrick v. Ford, 504. 
 Patrick v. Patrick, 279, 310. 
 Patten v. Casey, 271, 285. 
 Patten v. Clark, 235. 
 Patten v. Smith, 98, 113, 146, 152, 
 
 245. 
 Patterson v. Bodenhamer, 44. 
 Patterson v. Campbell, 241, 249, 
 
 532 533. 
 Patterson T.McKinney, 222, 283, 
 
 567. 
 Patterson v. Whittier, 489. 
 Pattison v. Stewart, 48, 225, 228. 
 Patton v. Gates, 311. 
 Patton v. Hayter, 517. 
 Paul v. Crooker, 113, 155, 177, 328. 
 
 504. 
 Paulk v. Cooke, 286, 287, 288, 311, 
 
 323. 
 Paulling v. Sturgus, 38, 178. 
 Pawley v. Vogel, 249, 250, 251, 
 
 316, 321. 
 Paxton v. Boyce, 59, 593, 604. 
 Payne v. Able, 545. 
 Payne v. Bruton, 448. 
 Payne v. Craft, 261. 
 Payne v. Sheldon, 536, 552. 
 Payne v. Stanton, 322. 
 Peacock v. Monk, 218, 240, 596. 
 Peacock v. Terry, 448. 
 Peacock v. Tompkins, 232, 401, 483, 
 
 570, 615. 
 Peake, Ex parte, 258. 
 Peake v. Stout, 592, 593. 
 Pearce v. Beach, 377. 
 Pearce v. Jackson, 358, 403. 
 Pearpoint v. Graham, 343, 346, 435, 
 
 440. 
 Pearson, In re, 325. 
 Pearson v. Crosby, 434. 
 Pearson v. Forsyth, 581. 
 Pearson v. Maxfleld, 543. 
 Pearson v. Rockhill, 378, 394. 
 Peaslee v. Barney, 445, 549. 
 Peat v. Powell, 281. 
 Peay v. Sublet, 242, 532. 
 Peck v. Brummagin, 292. 
 Peck v. Carmichael, 198, 268. 
 Peck v. Crouse, 581, 587. 
 Peck v. Land, 10, 33, 34, 38, 112, 
 
 122, 200, 589. 
 
TABLE OF CASES CITED. 
 
 Peck v. Merrill, 332. 
 
 Peck v. Whiting, 379. 
 
 Pecot v. Armelin, 195. 
 
 Peebles v. Horton, 31, 43, 54. 
 
 Peiffer v. Lytle, 309. 
 
 Peigne v. Snowden, 35, 45. 
 
 Peirce v. Merritt, 51, 141, 202, 203. 
 
 Pelham v. Aldrich, 509. 
 
 Pell v. Treadwell, 278, 316, 322, 
 
 465. 
 Pence v. Croan, 553, 554. 
 Pendleton v. Gunston's Case, 505. 
 Pendleton v. Hughes, 283, 316, 
 
 504. 
 Penhall v. Elwin, 209, 222, 295. 
 Penn v. Scholey, 581. 
 Penn v. Whiteheads, 249, 251. 
 Pennington v. Chandler, 162, 164, 
 
 260, 263. 
 Pennington v. Clifton, 242, 327, 530. 
 Pennington v. Seal, 482, 620. 
 Pennington v. Woodall, 225, 461. 
 Penny v. Taylor, 482. 
 Penrod v. Morrison, 528. 
 Pepper v. Carter, 290, 319, 476. 
 Perit v. Webster, 519. 
 Perkins v. Bradley, 505. 
 Perkins v. Patten, 122. 
 Perrin, In re, 487. 
 Perry v. Calvert, 446. 
 Perry v. Foster, 162. 
 Perry v. Pettingill, 187. 
 Perry v. Shenandoah Bank, 125. 
 Person v. Monroe, 259. 
 Pervel v. Merritt, 37. 
 Peters v. Cunningham, 615. 
 Peters v. Light, 416, 479. 
 Peters v. Smith, 151. 
 Peterson v. Farnum, 242. 
 Peterson v. Mulford, 252. 
 Peterson v. Williamson, 320, 562. 
 Petrikin v. Davis, 334, 338, 344, 
 
 360, 394, 417. 
 Pettibone v. Phelps, 488, 583. 
 Pettibone v. Stevens, 192, 217, 597, 
 
 614. 
 Pettus v. Smith, 18, 199, 614. 
 Petty v. Petty, 224. 
 Pfeifer v. Snyder, 554. 
 Pferman v. Koch, 258. 
 Pharis v. Leachman, 541, 549, 612. 
 Phelps v. Foster, 527. 
 Phelps v. McNeely, 259. 
 Phelps v. Morrison, 494, 541, 549, 
 
 612. 
 
 Phettiplace v. Sayles, 36, 42, 51, 58, 
 
 83, 178, 184, 189, 195, 444, 558, 
 
 603. 
 Phillips v. Earner, 588. 
 Phillips v. Reitz, 112, 202. 
 Phillips v. Wesson, 531. 
 Phillips v. Wooster, 277, 465. 
 Phillips v. Zerbe Run, &c, 213. 
 Phinizy v. Clark, 34, 42, 190. 
 Phippen v. Durham, 435, 439, 557. 
 Phipps v. Sedgwick, 287, 567, 618. 
 Pickens v. Hathaway, 459. 
 Pickett v. Pickett, 529, 563, 587. 
 Pickett v. Pipkin, 54, 198,553, 576. 
 Pickstock v. Lyster, 353, 355, 393. 
 Picquet v. Swan, 292. 
 Pier v. Duff, 141, 587. 
 Pierce v. Brewster, 342, 417. 
 Pierce v. Chipman, 135, 171. 
 Pierce v. Hasbrouck, 459. 
 Pierce v. Hill, 480. 
 Pierce v. Hoffman, 584. 
 Pierce v. Jackson, 506. 
 Pierce v. Partridge, 486. 
 Pierce v. Rehfus, 190. 
 Pierce v. Thompson, 307, 308. 
 Pierson v. Heisey, 319. 
 Pierson v. Manning, 347, 361, 363, 
 
 364, 405, 419, 488. 
 Pierson v. Tom, 195, 590. 
 Pike v. Bacon, 351, 357, 360. 
 Pike v. Miles, 245, 246, 292, 319. 
 Pike v. Pike, 523. 
 Pilling v. Otis, 19, 31, 33, 47. 
 Pillsbury v.Kingon, 484, 546. 
 Pine v. Rikert, 346, 379, 385, 492. 
 Pinkerton v. Manchester R. R. Co., 
 
 177, 239. 
 Pinkston v. McLemore, 218, 233, 
 
 252 "279. 
 Pinneo v. Hart, 361, 384. 
 Piper v. Johnston, 246, 482, 621. 
 Pitts v. Viley, 339, 378, 423. 
 Place v. Langworthy, 125. 
 Place v. Miller, 397. 
 Place v. Rhem, 292, 319. 
 Planck v. Schermerhorn, 19, 222, 
 
 292, 370, 371, 374, 384, 386, 
 
 421. 
 Planters' Bank v. Borland, 26, 35, 
 
 57, 76, 98, 112, 132. 
 Planters' Bank v. Henderson, 240. 
 Planters' Bank v. Walker, 36, 49, 
 
 57, 531, 551, 567. 
 Planters' Bank v. Willeo Mills, 19. 
 
lii 
 
 TABLE OF CASES CITED. 
 
 Planters' Bank v. Willis, 158, 159. 
 Planters' & Merchants' Bank v. 
 
 Clarke, 48, 129, 380, 401, 413. 
 Piatt v. Brown, 217. 
 Piatt v. Matthews, 545. 
 Piatt v. Mead, 316, 319, 553. 
 Piatt v. Wheeler, 474. 
 Plummer v. Worley, 446. 
 Poague v. Boyce, 32, 56. 
 Pogodiuski v. Kruger, 603. 
 Poindexter v. Jefl'rles, 308, 309. 
 Pomeroy v. Bailey, 292, 581, 589, 
 
 598. 
 Pomeroy v. Manin, 396, 558, 573, 
 
 -599. 
 Pond v. Comstock, 617. 
 Pope v. Andrews, 35, 37, 48, 52, 
 
 57, 600. 
 Pope v. Brandon, 332, 350, 374. 
 Pope v. Pope, 179, 205, 225. 
 Pope v. Wilson, 13, 15, 24, 28, 128, 
 
 213, 331, 338, 408, 554. 
 Porche v. Moore, 282. 
 Porter v. Cocke, 517, 562, 563. 
 Porter v. Williams, 340, 341, 342, 
 
 417, 507, 545. 
 Portland Bank v. Stacey, 168. 
 Posey v. Underwood, 522. 
 Post v. Stiger, 313. 
 Posten v. Posten, 279, 284, 285, 
 
 576, 577. 
 Poston v. Balch, 449. 
 Postlewait v. Howes, 536, 538, 541, 
 
 546, 548, 549, 552, 553, 555. 
 Pott v. Todhunter, 308, 507. 
 Potter v. Gracie, 229, 598, 616. 
 Potter v. Mather, 145. 
 Potter v. McDowell, 23, 25, 32, 47, 
 
 48, 270, 271, 282, 286, 581, 593. 
 Potter v. Payne, 30, 119, 141. 
 Potter v. Phillips, 548. 
 Potter v. Stevens, 550, 614. 
 Potter v. Washburn, 171. 
 Powell v. Inman, 455. 
 Powell v. Westmoreland, 284. 
 Power v. Alston, 49, 215. 
 Power v. Van Buren, 521. 
 Powers v. Graydon, 388, 435. 
 Powers v. Green, 141, 155. 
 Powers v. Russell, 459. 
 Prather v. Barker, 131. 
 Pratt v. Burr, 245. 
 Pratt v. Cox, 327, 444, 464, 621. 
 Pratt v. Curtis, 275, 324, 544. 
 Pratt v. Myers, 320. . 
 
 Pratt v. Pratt, 600. 
 
 Pratt v. Wheeler, 475. 
 
 Prentice v. Madden, 553. 
 
 Prentice v. Slack, 111. 
 
 Prescott v. Hayes, 42, 225, 575, 
 576, 577, 594. 
 
 Prestidge v. Cooper, 446. 
 
 Preston v. Crofut, 492. 
 
 Preston v. Griffin, 35. 
 
 Preston v. Jones, 228. 
 
 Preston v. Turner, 536. 
 
 Preston v. Twiner, 197, 566. 
 
 Preusser v. Henshaw, 184. 
 
 Prewett v. Coopwood, 449. 
 
 Prewett v. Wilson, 300, 302, 310, 
 361, 583. 
 
 Price v. De Ford, 369, 390, 403, 
 419, 420. 
 
 Price v. Mahoney, 590. 
 
 Price v. Masterson, 615. 
 
 Price v. Mazange, 125, 395, 396. 
 
 Price v. Parker, 335, 348. 
 
 Price v. Bitger, 399. 
 
 Price v. Sanders, 554. 
 
 Primrose v. Browning, 281, 284, 
 313, 508. 
 
 Prince v. Shepard, 43, 488. 
 
 Pringle v. Isaacs, 518. 
 
 Pringle v. Hodgson, 240. 
 
 Pringle v. Pringle, 446. 
 
 Pringle v. Bhanie, 155. 
 
 Pringle v. Sizer, 185, 187, 600. 
 
 Prior v. Kinney, 147, 238. 
 
 Prior v. White, 52, 60, 185, 583. 
 
 Pritchett v. Jones, 155.. 
 
 Proctor v. Warren, 240,' 241. 
 
 Proseus v. Mclntire, 241, 454. 
 
 Prosser v. Henderson, 18, 45, 176. 
 
 Prout v. Vaughan, 191, 493. 
 
 Providence Savings Bank v. Hunt- 
 ingdon, 292. 
 
 Pulliam v. Newberry, 191, 199, 588. 
 
 Pullis v. Robinson, 613. 
 
 Purkitt v. Polack, 37, 49, 55. 
 
 Puryear v. Beard, 459. 
 
 Pusey v. Harper, 257. 
 
 Putnam v. Dutch, 62, 168, 169. 
 
 Putnam v. Hubbell, 394. 
 
 Putnam v. Osgood, 127. 
 
 Quarles v. Grigsby, 552. 
 Quarles v. Kerr, 20, 412. 
 Quarles v. Lacy, 310, 618. 
 Quick v. Garrison, 161. 
 Quidort v. Pergeaux, 249, 250. 
 
TABLE OF CASES CITED. 
 
 liii 
 
 Quimby v. Dill, 509. 
 Quincy v. Hall, 347. 
 Quiriaque v. Dennis, 165. 
 
 Radford v. Folson, 205. 
 Raffensberger v. Cullison, 256. 
 Ragan v. Kennedy, 112, 173, 184, 
 
 574, 588, 589. 
 Ragland v. Cantrell, 266. 
 Rahn v. McElrath, 191, 213. 
 Railroad Co. v. Kyle, 52, 57, 575. 
 Railroad Co. v. Soutter, 614. 
 Rainsford, In re, 316. 
 Raleigh v. Griffith, 415. 
 Ralls v. Graham, 526. 
 Ramsey v. Stevenson, 513. 
 Ramsdell v. Sigerson, 434. 
 Ramsden v. Hylton, 304. 
 Ramsey v. Quillen, 562. 
 Randall v. Bufiington, 245. 
 Randall v. Cook, 102, 111, 152, 154, 
 
 157, 164. 
 Randall v. Lunt, 186. 
 
 Randall v. Morgan, 224, 303, 304. 
 Randall v. Parker, 107, 114, 119, 
 
 153. 
 Randall v. Phillips, 459, 558. 
 Randall & Sunderland, In re, 370. 
 Randall v. Vroom, 200. 
 Randolph v. Daly, 548, 550, 551, 
 
 553. 
 Rankin v. Arndt, 257, 261, 492. 
 Rankin v. Harper, 242, 476. 
 Rankin v. Holloway, 112, 177, 328. 
 Rankin v. Jones, 258. 
 Rankin v. Lodor, 335, 421, 423, 
 
 441. 
 Rankin v. West, 249, 250. 
 Ranlett v. Blodgett, 125. 
 Rapalee v. Stewart, 366, 417, 467. 
 Rappeleye v. International Bank, 
 
 474, 571. 
 Rateliffe v. Trimble, 45, 197. 
 Rathbun v. Platner, 361. 
 Ravenshaw v. Collier, 339. 
 Ravisies v. Alston, 48, 120, 129, 
 
 158, 161, 213. 
 Rawson v. Fox, 568. 
 Ray v. Brown, 38. 
 Bay v. Simons, 28. 
 
 Raymond v. Cook, 276, 281, 508. 
 Raymond v. Richmond, 568. 
 Kayner v. Whicher, 246, 608, 620. 
 Rae v. Alexander, 111, 200, 215, 
 217. 
 
 Rea v. Missouri, 581, 584, 588, 592, 
 
 600. 
 Rea v. Smith, 457. 
 Read v. Baylies, 389, 390. 
 Read v. Staton, 492, 497. 
 Read v. Wilson, 125, 130, 141, 173. 
 Read v. Worthington, 20, 346, 368, 
 
 387, 388. 
 Reade v. Livingstone, 224, 279, 302, 
 
 303, 304, 320. 
 Ready v. Bragg, 308. 
 Reamer v. Lamberton, 346. 
 Reavis v. Garner, 437, 507. 
 Redfleld v. Buck, 316, 321, 574, 589. 
 Redfleld Mfg. Co. v. Dysart, 38, 57, 
 
 595. 
 Reed v. Blades, 50, 96, 125, 463. 
 Reed v. Carl, 46, 57. 
 Reed v. Davis, 575, 576, 577. 
 Reed v. Eames, 158. 
 Reed v. Emery, 375, 376, 377. 
 Reed v. Ennis, 523. 
 Reed v. Jewett, 42, 111. 
 Reed v. Mclntyre, 355. 
 Reed v. Minell, 562. 
 Reed v. Noxon, 29, 602. 
 Reed v. Smith, 497, 583, 587, 589. 
 Reed .v. Stryker, 551. 
 Reed v. Wilmot, 156. 
 Reed v. Woodman, 41, 320, 509. 
 Reehling v. Byers, 194, 198. 
 Reese River Mining Co. v. Atwell, 
 
 271, 272, 534, 552. 
 Reeves v. Dougherty, 562. 
 Reeves v. Harris, 151, 157, 235. 
 Reeves v. Shry, 191, 593. 
 Reg. v. Smith, 556. 
 Regli v. McClure, 137. 
 Reich v. Reich, 292. 
 Reichert v. Castator, 444, 581. 
 Reid v. Gray, 315, 514. 
 Reid v. Mullins, 458. 
 Reiff v. Eshleman, 310, 384, 467. 
 Reiger v. Davis, 56, 197. 
 Reinhard v. Bank of Kentucky, 
 
 332, 358, 369, 388, 402. 
 Reinheimer v. Hemingway, 201. 
 Reitenbach v. Reitenbach, 584. 
 Remington v. Bailey, 459. 
 Remington Paper Co. v. O'Dough- 
 
 erty, 257, 260, 546. 
 Renard v. Graydon, 397, 435. 
 Renfrew v. McDonald, 451. 
 Renick v. Bank, 467, 469. 
 Renton v. Kelly, 416. 
 
Hv 
 
 TABLE OF CASES CITED. 
 
 Kepplier v. Buck, 332, 334, 374. 
 
 Repplier v. Orrich, 409. 
 
 Reppy v. Reppy, 255, 281. 
 
 Reubens v. Joel, 534. 
 
 Rew v. Barber, 519. 
 
 Rex v. Nottingham, 29, 30, 218, 505. 
 
 Reynard v. O'Brien, 538. 
 
 Reynolds v. Crook, 47. 
 
 Reynolds v. Lansford, 276, 281, 562. 
 
 Reynolds v. Park, 499, 550. 
 
 Reynolds v. Welch, 191, 193. 
 
 Reynolds v. Wilkins, 187. 
 
 Rhein v. Tull, 445. 
 
 Rhines v. Phelps, 113, 158. 
 
 Rhoads v. Blatt, 44. 
 
 Rhodes v. Amsinck, 570. 
 
 Rhodes v. Cousins, 464, 534. 
 
 Rhodes v. Gordon, 313. 
 
 Rhodes v. Green, 493, 507. 
 
 Rice v. Courtis, 513, 515. 
 
 Rice v. Cunningham, 214, 215, 580, 
 
 599. 
 Rice v. Dignowitty, 604, 605. 
 Rice v. Perry, 19, 543. 
 Rice v. Sergeant, 520. 
 Rich v. Levy, 187, 527. 
 Richards v. Allen, 41. 
 Richards v. Ewing, 479, 492, 609. 
 Richards v. Hazard, 363, 399. 
 Richards v. Levin, 405. 
 Richards v. Schroeder, 167, 171. 
 Richards v. Swan, 33, 36, 557, 574. 
 Richards v. White, 468. 
 Richardson v. Forepaugh, 514. 
 Richardson v. Horton, 299, 505, 
 
 553. 
 Richardson v. Leavitt, 512. 
 Richardson v. Marqueze, 404, 417. 
 Richardson v. Rhodus, 283, 290, 
 
 316, 319, 321. 
 Richardson v. Rogers, 340, 350, 417. 
 Richardson v. Smallwood, 29, 275, 
 
 282, 285, 323, 325, 507. 
 Richardson v. Stewart, 14. 
 Richardson v. Wyman, 481. 
 Riches v. Evans,' 21, 355. 
 Richmond v. Ourdup, 48. 
 Richmondville Mfg. Co. v. Pratt, 
 
 394, 513. 
 Ricker v. Cross, 168. 
 Ricker v. Ham, 480. 
 Rickett v. Pipkin, 40. 
 Ricketts v. McCully, 290, 292. 
 Riddell v. Shirley, 245. 
 Riddle v. Lewis, 458. 
 
 Rider v. Kidder, 239, 240, 504, 505, 
 
 533. 
 Ridgway v. Masting, 481. 
 Ridgway v. Ogden, 22. 
 Ridgway v. Underwood, 315, 320, 
 
 322 597. 
 Ridler v. Punter, 22, 238. 
 Ridout v. Burton, 147. 
 Ries v. Rowland, 264. 
 Riggs v. Murray, 380. 
 Rinchey v. Stryker, 462, 505. 
 Rindskoff v. Guggenheim, 398, 402, 
 
 412, 415, 416, 594. 
 Ringgold v. Waggoner, 36, 49, 52, 
 
 58,' 494, 612. 
 Ripley v. Severance, 485. 
 Rivers v. Thayer, 300, 302, 315, 
 
 316. 
 Roach v. Deering, 45, 49, 263. 
 Roane v. Bank, 47, 483. 
 Roane v. Vidal, 446, 448. 
 Robb v. Mudge, 258. 
 Robb v. Stevens, 390. 
 Robbins v. Magee, 329. 
 Robbins v. Oldham, 165. 
 Robbins v. Parker, 55, 127, 129. 
 Robbins v. Sackett, 506, 562. 
 Robert v. Hodges, 40, 536. 
 Roberts v. Gibson, 224, 277, 316, 
 
 319, 566. 
 Roberts v. Guernsey, 172, 603. 
 Roberts v. Jackson, 485. 
 Roberts v. Lund, 456. 
 Roberts v. Oldham, 518. 
 Roberts v. Seales, 519. 
 Roberts v. Shepard, 47, 351. 
 Robertson v. Ewell, 108, 111, 125. 
 Robinett's Appeal, 308. 
 Robins v. Embry, 344, 350, 364, 
 
 374, 375, 393, 400, 407, 409, 
 
 419, 427, 488. 
 Robinson v. Bank, 350. 
 Robinson v. Bates, 481. 
 Robinson v. Bliss, 580. 
 Robinson v. Boyd, 609. 
 Robinson v. Brenns, 249. 
 Robinson v.'Chapline, 235. 
 Robinson v. Crowder, 351. 
 Robinson v. Elliott, 123, 130, 131. 
 Robinson v. Gregory, 351. 
 Robinson v. Holt, 199. 
 Robinson v. Hoffman, 243. 
 Robinson v. McDonnell, 507. 
 Robinson v. Monjoy, 475. 
 Robinson v. Nye, 422. 
 
TABLE OF CASES CITED. 
 
 lv 
 
 Robinson v. Pitzer, 589. 
 Bobinson v. Rapelye, 180, 332, 344, 
 
 394, 435, 512. 
 Robinson v. Robards, 209, 219. 
 Robinson v. Roberts, 163. 
 Robinson v. Stewart, 191, 218, 295, 
 
 559, 570, 612, 616. 
 Robinson v. Uhl, 112. 
 Robinson v. Wallace, 249. 
 Robinson v. Williams, 232. 
 Roche v. Hassard, 45, 54, 617. 
 Rochelle v. Harrison, 456. 
 Rock v. Dade, 218, 549. 
 Rockenbaugh v. Hubbell, 378. 
 Rockwood v. Collamer, 143. 
 Roden v. Murphy, 445, 455. 
 Roe v. Irwin, 190, 242, 530. 
 Roeber v. Bowe, 200. 
 Rogers v. Brown, 563, 564. 
 Rogers v. Dare, 112. 
 Rogers v. DeForrest, 417. 
 Rogers v. Evans, 199, 504. 
 Rogers v. Fales, 484. 
 Rogers v. Hall, 53, 494, 585, 595, 
 
 600. 
 Rogers v. Jones, 255. 
 Rogers v. McCaulay, 246. 
 Rogers v. Rogers, 549. 
 Rogers v. Vail, 161, 171. 
 Rogers Locomotive Works v. 
 
 Lewis, 236. 
 Rohrer v. Turrill, 459. 
 Rokenbaugh v. Hubbell, 372, 373. 
 Rollins v. Mooers, 35, 37, 49, 58, 
 
 219, 598. 
 Roman v. Mali, 450. 
 Romine v. Romine, 553. 
 Romp, The, 157. 
 Rood v. Welch, 484. 
 Root v. Reynolds, 204. 
 Rose v. Brown, 243, 313, 316. 
 Rose v. Burgess, 156. 
 Rose v. Coble, 197. 
 Rose v. Colter, 28, 112, 118, 
 Rose v. Sharpless, 245. 
 Rose v. Story, 236. 
 Rosenberg v. Moore, 438. 
 Ross v. Crutsinger, 39, 113, 118. 
 Ross v. Weber, 517. 
 Ross v. Wilson, 127. 
 Rothberger v. Gough, 32. 
 Rouns v. Dunnigan, 253. 
 Rowland v. Coleman, 404, 553. 
 Rowlandson, Ex parte, 258. 
 Rowley v. Rice, 130. 
 
 Royer Wheel Co. v. Fielding, 535, 
 
 551. 
 Ruble v. McDonald, 361, 402. 
 Rucker v. Abell, 41, 222, 242, 532, 
 
 619. 
 Ruffin-, Ex parte, 258. 
 Ruffing v. Tilton, 203, 327, 505. 547. 
 Ruhl v. Phillips, 47, 48, 197,' 205, 
 
 389. 
 Rumbolds v. Parr, 603. 
 Rundle v. Murgatroyd, 281. 
 Rundlett v. Dole, 344. 
 Runyon v. Groshon, 120, 156. 
 Runyon v. Leary, 28. 
 Rush v. Vought, 248, 251. 
 Rush v. Butterfield, 462. 
 Russell v. Dudley, 478. 
 Russell v. Dyer, 462, 476. 
 Russell v. Fabyan, 459, 480. 
 Russell v. Fanning, 281. 
 Russell v. Gibbs, 519, 520. 
 Russell v. Hammond, 219, 274, 277, 
 
 280, 304, 310, 531. 
 Russell v. Lasher, 549. 
 Russell v. Randolph, 281. 
 Russell v. Stinson, 315, 504. 
 Russell v. Thatcher, 281, 311. 
 Russell v. Tunno, 512, 515. 
 Russell v. Winne, 125, 127, 487. 
 Russell v. Woodward, 333. 
 Ryall v. Rolle, 83, 86, 95, 120, 122, 
 
 161. 
 Ryan v. Bull, 308. 
 Ryan v. Daly, 187. 
 Ryan v. Mullinix, 57. 
 Ryan v. Rau, 448. 
 Ryerson v. Eldred, 344. 
 Ryland v. Callison, 546. 
 
 Sackett v. Mansfield, 410, 414, 415. 
 Sackett v. Spencer, 223, 581, 587. 
 Sadler v. Immel, 333, 334. 
 Sadlier v. Fallon, 335, 337. 
 Sage v. Chollar, 258. 
 Sagitary v. Hide, 218, 277, 319. 
 Sale v. McLean, 546, 614. 
 Salmon v. Bennett, 287, 291. 
 Salmon v. Smith, 556. 
 Salomon v. Moral, 615. 
 Samuels v. Gorham, 164. 
 Sanborn v. Kittredge, 167, 558. 
 
 Sanders v. , 575. 
 
 Sanders v. Chandler, 327. 
 
 Sanders v. Pepoon, 113. 
 
 Sanders v. Wagonseller, 232, 474. 
 
lvi 
 
 TABLE OF CASES CITED. 
 
 Sanders v. Warton, 505. 
 Sanderson v. Bradford, 513, 514. 
 Sanderson v. Streeter, 320, 409. 
 Sanderson v. Stockdale, 259. 
 Sandlin v. Bobbins, 210, 214; 
 Sands v. Codwise, 32, 50, 52, 58, 
 
 545, 612, G14. 
 Sands v. Hildreth, 39, 44, 49, 50, 
 
 55, 197, 316, 476, 556. 
 Sanford v. Wheeler, 616. 
 Sanford v. Wiggan, 463. 
 San Francisco R. B. Co. v. Bee, 
 
 281. 
 Sangston v. Gaither, 407, 436, 437, 
 
 '438, 515. 
 Sargent v. Chubbuck, 281. 
 Sargent v. Salmond. 240, 508, 533, 
 
 577. 
 Sarle v. Arnold, 35, 49, 582, 583. 
 Satterwaite v. Emly, 304. 
 Satterwhite v. Hicks, 36, 37, 57, 
 
 59, 574. 
 Saunders v. Ferrill, 302, 304. 
 Saunders v. Turbeville, 127, 128, 
 
 572. 
 Savage v. Dowd, 186. 
 Savage v. Hazard, 200. 
 Savage v. Murphy, 323. 
 Savage v. O'Neil, 250, 309, 515. 
 Savery v. Spaulding, 360, 374, 379, 
 
 587. 
 Savings Bank v. Bates, 186. 
 Sayre v. Fredericks, 32, 35, 36, 38. 
 
 57, 58, 199, 223. 
 Scales v. Scott, 227, 486, 536. 
 Scarfe v. Halifax, 506. 
 Schaeffer v. Fithian, 230. 
 Schaferman v. O'Brien, 33, 38, 49, 
 
 50, 55, 57, 559, 561. 
 Schaffner v. Eeuter, 306. 
 Scheitlin v. Stone, 37, 48, 556. 
 Schenck v. Hart, 465. 
 Schettler v. Brunette, 459. 
 Schlussel v. Willett, 421, 462, 506. 
 Schmidlapp v. Currie, 230. 
 Schmidt v. Opie, 43, 57. 
 Schofleld v. Blind, 603. 
 Scholey v. Worcester, 465. 
 Schoolfield v. Johnson, 363, 415. 
 Schott v. Chancellor, 262. 
 Schufeldt v. Abernethy, 418. 
 Schultz v. Hoagland, 374, 402, 603. 
 Schuman v. Peddicord, 444. 
 Scott v. Coleman, 572. 
 Scott v. Edes, 466, 468, 473. 
 
 Scott v. Gibbon, 298. 
 
 Scott v. Guthrie, 345. 
 
 Scott v. Hartman, 217, 504. 
 
 Scott v. Heilager, 587. 
 
 Scott v. Indianapolis WagonWorks, 
 
 239, 531, 576. 
 Scott v. McMillen, 542, 572. 
 Scott v. Purcell, 496. 
 Scott v. Ray, 378. 
 Scott v. Winship, 36, 45, 57, 119, 
 
 127, 606. 
 Scouton v. Bender, 567, 571, 616. 
 Scriven v. Bostwick, 541, 549, 562. 
 Scrivenor v. Scrivenor, 39, 57. 
 Scudder v. Voorhis, 549. 
 Scully v. Kearns, 474. 
 Seale v. Vaiden, 434. 
 Seaman v. Flemming, 231. 
 Seaman v. Hasbrouck, 228. 
 Seaman v. Wall, 320. 
 Seaman v. White, 45, 209. 
 Searcy v. Carter, 446. 
 Sears v. Hanks, 482. 
 Seaving v. Brinkerhoff, 436, 437, 
 
 438. 
 Seavy v. Dearborn, 141, 202. 
 Second Nat'l Bank v. Yeatman, 
 
 49, 54. 
 Sedgwick v. Menck, 545. 
 Sedgwick v. Place, 286, 493 . 
 Seeders v. Allen, 223. 
 Seitz v. Mitchell, 313. 
 Serfoss v. Fisher, 260. 
 Servis v. Nelson, 457. 
 Sewall v. Russell, 374, 400, 426, 
 
 548. 
 Seward v. Jackson, 22, 225, 267, 
 
 285, 291, 503, 507. 
 Sexton v. Canny, 478. 
 Sexton v. Wheaton, 12, 277, 278, 
 
 316, 320. 
 Seymour v. Beach, 593. 
 Seymour v. Briggs, 179, 225. 
 Seymour v. Lewis. 52, 57, 467, 469. 
 Seymour v. O'Kee'fe, 136. 
 Seymour v. Wilson, 15. 16, 179, 
 
 195, 225, 226, 507, 593. 
 Shadbolt v. Bassett, 459. 
 Shackelford v. Collier, 243, 251, 
 
 252, 507, 544. 
 Shackelford v. Todhunter, 320. 
 Shackelford v. Planters' Bank, 344. 
 
 359, 366, 401, 417. 
 Shaeffer v. Fithian, 567. 
 Shafl'er v. Watkins, 40. 
 
TABLE Or CASES CITED. 
 
 lvii 
 
 Shallcross v. Beats, 260, 444, 475, 
 
 521. 
 Shamwald v. Lewis, 260. 
 Shannon v. Commonwealth, 199, 
 
 218. 
 Shannon v. White, 564, 565. 
 Shapleigh v. Baird, 331, 395, 396, 
 
 554. 
 Sharon v. Shaw, 145, 172. 
 Sharp v. Jones, 459. 
 Sharpe v. Bavis, 465. 
 Sharpe v. Williams, 263. 
 Shattuck v. Freeman, 333, 360, 379. 
 Shaver v. Brainard, 548. 
 Shaw v. Bran, 505. 
 Shaw v. Bwight, 535, 543. 
 Shaw v. Jakeman, 302. 
 Shaw v. Lowry, 125. 
 Shaw v. Millsaps, 558. 
 Shaw v. Kobertson, 588. 
 Shaw v. Standish, 319. 
 Shaw v. Thompson, 113. 
 Shea v. Knoxville & K. R. R. Co., 
 
 340. 
 Sheafe v. Sheafe, 531. 
 Shean v. Shay, 38, 504, 
 Shearer v. Loftin, 336, 337, 338, 
 
 339, 409. 
 Shearon v. Henderson, 38, 58, 197, 
 
 223. 
 Shears v. Rogers, 282, 285, 445. 
 Shedd v. Bank, 43, 56, 186, 486. 
 Shee v. French, 489, 526. 
 Sheerer v. Lautzerheizer, 409, 412, 
 
 462. 
 Sheldon v. Bodge, 23, 362, 367, 383, 
 
 401. 
 Sheldon v. Smith, 339, 340, 351. 
 Sheldon v. Stryker, 492. 
 Shelley v. Boothe, 188, 191. 
 Shelton v. Church, 44, 45, 191. 
 Shepherd v. Hill, 51, 249. 
 Shepherd v. Trigg, 113. 
 Sheppard v. Iverson, 37, 44, 58, 
 
 31. 
 Sheppard v. Pratt, 292. 
 Sheppard v. Thomas, 328, 471. 
 Sheppards v. Turpin, 380, 401, 405. 
 Sherk v. Endress, 455. 
 Sherman v. Barrett, 229. 
 Sherman v. Hogland, 31, 38, 56, 
 
 198, 290, 553, 585. 
 Sherron v. Humphreys, 137. 
 Shields v. Anderson, 174, 524, 526, 
 
 612. 
 
 Shimer v. Huber, 258, 259. 
 
 Shinkle v. Letcher, 463. 
 
 Shipman v. Etna Insurance Co., 
 
 177, 484. 
 Shirley v. Long, 544. 
 Shirley v. Shirley, 160. 
 Shirras v. Craig, 39, 41, 43, 231, 
 
 232, 596. 
 Shiveley v. Jones, 58, 456. 
 Shoemaker v. Hastings, 211. 
 Shontz v. Brown, 222, 224, 228, 
 
 267, 281, 315, 503, 594. 
 Shorman v. Farmers' Bank, 480. 
 Short v. Tinsley, 178, 616. 
 Shorter v. Methoin, 281. 
 Shouse v. Utterback, 396. 
 Shufeldt v. Boehm, 527. 
 Shumway v. Rutter, 111. 
 Shurtleff v. Willard, 48, 120, 130, 
 
 487. 
 Shurts v. Howell, 541. 
 Shute v. Sturm, 606. 
 Sibell v. Remsen, 350. 
 Sibley v. Hood, 22, 113, 157, 184, 
 
 185, 197, 208, 600. 
 Sickman v. Lapsley, 446. 
 Sidensparker v. Sidensparker, 219, 
 
 576, 577. 
 Siegel v. Chidsey, 14, 186, 230. 
 Siggers v. Evans, 340, 347. 
 Sigler v. Bank, 230. 
 Simerson v. Bank, 158, 161, 162. 
 Simmerson v. Buncan, 522. 
 Simmonds v. Palles, 336. 
 Simmons v. Curtis, 369. 
 Simon v. Gibson, 459. 
 Simpson v. Ball, 237. 
 Simpson v. Graves, 279, 282, 302, 
 
 303, 304, 444. 
 Simpson v. Mitchell, 48, 125. 
 Simpson v. Simpson, 492, 549, 609, 
 
 612. 
 Simpson v. Warren, 546. 
 Sims v. Games, 42, 217. 
 Sims v. Morse, 201. 
 Sims v. Thomas, 239, 240, 533. 
 Sinclair v. Healey, 492. 
 Singee v. Welch, 310. 
 Singer v. Jacobs, 200, 202. 
 Sipe v. Earman, 38, 48, 60, 129. 
 Sisson v. Roath, 197, 201. 
 Skarf v. Soulby, 275, 279, 292, 
 
 324. 
 Skiff v. Solace, 514. 
 Skillman v. Skillman, 232, 252. 
 
lviii 
 
 TABLE OF CASES CITED. 
 
 SMpwith's -Exec. v. Cunningham, 
 
 332, 333, 335, 337, 339, 405, 
 
 435, 437, 439. 
 Slater v. Dudley, 220. 
 Slater v. Sherman, 508. 
 Slattery v. Stewart, 57. 
 Sledge v. Obenchain, 328, 471. 
 Sleeper v. Chapman, 126, 127, 499. 
 Sleeper v. Pollard, 172. 
 Smallcomb v. Buckingham, 517. 
 Smart v. Bement, 499. 
 Smart v. Harring, 209. 
 Smead v. Williamson, 44, 52, 59, 
 
 202. 
 Smit v. People, 57. 
 Smith's Appeal, 227, 516, 520. 
 
 Smith v. , 448. 
 
 Smith v. Acker, 101, 102, 106, 111, 
 
 116, 117, 118. 
 Smith v. Allen, 245, 297, 620. 
 Smith v. Blake, 528. 
 Smith v. Boquet, 448. 
 Smith v. Bowen, 452. 
 Smith v. Brown, 54. 56. 
 Smith v. Campbell, 394. 
 Smith v. Chenault, 591. 
 Smith v. Chen-ill, 270, 271, 282, 299. 
 Smith v. Consolidated Stage Co., 
 
 350. 
 Smith v. Craft, 615. 
 Smith v. Culbertson, 199, 504. 
 Smith v. Daniel, 59. 
 Smith v. Duncan, 58, 241, 307. 
 Smith v. Edwards, 258. 
 Smith v. Elliott, 448, 451. 
 Smith v. Ely, 127, 130. 
 Smith v. Espy, 327, 465, 484. 
 Smith v. Earnum, 527. 
 Smith v. Foster, 151. 
 Smith v. Gary, 244. 
 Smith v. Gettinger, 523. 
 Smith v. Gordon, 545. 
 Smith v. Greer, 224, 303, 308, 320, 
 
 324. 
 Smith v. Grim, 549. 
 Smith v. Hardy, 191. 
 Smith v. Henry, 27, 34, 38, 58, 96, 
 
 112, 115, 119, 154, 195, 197, 
 
 201,203,591. 
 Smith v. Hinson, 49, 242. 
 Smith v. Howard, 342, 389, 390, 
 
 392, 469. 
 Smith v. Hubbs, 455. 
 Smith v. Hurst, 335, 339, 380, 383, 
 
 427, 534. 
 
 Smith v. Ingles* 242, 475. 
 
 Smith v. Lane, 223. 
 
 Smith v. Leavitts, 336, 338, 359, 
 
 379, 417, 427. 
 Smith v. Littlejohn, 154, 279, 319. 
 Smith v. Lowell; 42, 122, 177, 327, 
 
 328. 
 Smith v. McCann, 532. 
 Smith v. McDonald, 177, 328. 
 Smith v. McLean, 125, 131. 
 Smith v. Mitchell, 402, 404. 
 Smith v. Morse, 29, 412. 
 Smith v. Muirhead, 200, 536. 
 Smith v. Niel, 111. 
 Smith v. Onion, 41. 
 Smith v. Parker, 241, 532. 
 Smith v. Pate, 197, 566. 
 Smith v. Patton, 275, 318. 
 Smith v. Pollard, 445, 447. 
 Smith v. Post, 114, 488, 
 Smith v. Quartz Mining Co., 453. 
 Smith v. Beavis, 279, 283. 
 Smith v. Kumsey, 245, 508, 540. 
 Smith v. Schmed, 590. 
 Smith v. Schmitz, 198, 245. 
 Smith v. Schwed, 190, 203, 264, 265. 
 Smith v. Skeary, 143, 186. 
 Smith v. Smith, 218. 
 Smith v. Stern, 135, 173. 
 Smith v. Tonstall, 529. 
 Smith v. Vodges, 292, 320. 
 Smith v. Wall, 131. 
 Smith v. Welch, 112, 119. 
 Smith v. Woodruff, 369, 434. 
 Smith v. Yell, 290. 
 Smithier v. Lewis, 240, 533. 
 Smyth v. Carlisle, 42, 327. 
 Smyth v. Ripley, 213, 231. 
 Snipes v. Sheriff, 517. 
 Shodgrass v. Andrews-, 541, 549, 
 
 551. 
 Snodgrass v. Bank, 565, 575, 576, 
 
 591. 
 Snow v. Paine, 242, 593. 
 Snyder v. Christ, 316, 317. 
 Snyder v. Hitt, 120, 156. 
 Snyder v. Kunkelman, 516. 
 Society v. Hitchcock, 520. 
 Sockmau v. Sockman, 549. 
 Soden v. Soden, 38, 409. 
 Solberg v. Peterson, 190. 
 Sommer v. Sommer, 521. 
 Sommerville v. Horton, 28, 120 
 
 129, 184, 487. 
 1 Sontisby v. Keeley, 228. 
 
TABLE OF CASES CITED. 
 
 lix 
 
 Southard v. Benner, 127, 545. 
 Southworth v. Sheldon, 418. 
 Spader v. Davis, 570. 
 Spalding v. Norman, 617. 
 Sparks v. Mark, 217, 483. 
 Sparrow v. Chesley, 495. 
 Spaulding v. Austin, 42, 170, 174, 
 
 487. 
 Spaulding v. Blythe, 198, 281, 554. 
 Spaulding v. Myers, 554. 
 Spaulding v. Strang, 190, 363, 397, 
 
 398, 435, 593, 
 Speed v. May, 512. 
 Speer v. Skinner, 231. 
 Speise v. McCoy, 292. 
 Spence v. Bagwell, 128. 
 Spence v. Dunlap, 276, 320. 
 Spencer v. Armstrong, 541, 542. 
 Spencer v. Ayrault, 227. 
 Spencer v. Ford, 347. 
 Spencer v. Godwin, 279, 280, 495. 
 Spencer v. Jackson, 403, 427, 435, 
 
 436, 439. 
 Spencer v. Slater, 415, 437. 
 Spessard v. Rohrer, 438. 
 Spicer v. Ayers, 241, 320, 541. 
 Spicer v. Robinson, 499. 
 Spies v. Boyd, 123, 125, 488. 
 Spies v. Joel, 405. 
 Spindler v. Atkinson, 276, 480. 
 Spiney v. Portsmouth Hosiery Co., 
 
 337, 422, 423. 
 Spinner v. Weick, 554. 
 Spirett v. Willows, 291, 308. 
 Splawn v. Martin, 57, 197, 594. 
 Sporrer v. Eifler, 57. 
 Spring v. Chipman, 149. 
 Spring v. Strauss, 344. 
 Springer v. Drosch, 455. 
 Spurgeon v. Collier, 222, 224, 303. 
 St. Armand v. Countess Barbara, 
 
 325. 
 St. John v. Benedict, 448. 
 St. John v. Camp, 42, 44, 217, 
 
 225. 
 St. Louis M. L. Co. v. Cravens, 492. 
 . Stacey v. Deshaw, 179, 592. 
 Stadtler v. Wood, 120. 
 Stafford v. Stafford, 225. 
 Stall v. Fulton, 242, 252, 313. 
 Stanbro v. Hopkins, 574. 
 Stancill v. Branch, 482. 
 Standiford v. Devoe, 308. 
 Stanfield v. Simmons, 333, 394. 
 Stanford's Case, 524. 
 
 Stanford v. Scannell, 134. 
 
 Stanley v. Bunce, 125. 
 
 Stanley v. Robbins, 14, 139, 213, 
 
 219. 
 Stanton v. Green, 44, 47, 49, 50, 
 
 59, 208, 558. 
 Stanton v. Keyes, 570. 
 Stanton v. Kirsch, 313. 
 Stanton v. Shaw, 224. 
 Stanwix Bank v. Leggett, 555. 
 Staples v. Bradley, 480. 
 Staples v. Smith, 584. 
 Starin v. Kelly, 48, 200, 203, 209, 
 
 225, 455, 591. 
 Stark v. Brown, 500. 
 Stark v. Ward, 149. 
 Starke v. Etheridge, 60. 
 Starke v. Littlepage, 456. 
 Starr v. Dugan, 384. 
 Starr v. Starr, 49, 50, 51, 225, 226, 
 
 576, 580. 
 Starr v. Strong, 48, 225. 
 Starr v. Wright, 458. 
 State v. Bank, 350, 393. 
 State v. Benoist, 28, 330, 348, 358, 
 
 359, 361, 362, 378, 417, 427. 
 State v. Bethune, 111. 
 State v. Byrne, 126. 
 State v. Cuiran, 29. 
 State v. Diveling, 482. 
 State v. Estel, 24, 201, 600, 603. 
 State v. Evans, 45, 113, 118, 209. 
 State v. Fife, 11, 505. 
 State v. Jacobs, 127. 
 State v. Keeler, 343, 361. 
 State v. King, 135. • 
 State v. Rosenfield, 115. 
 State v. Schulein, 139, 141. 
 State v. Smith, 113, 115. 
 State v. Tasker, 126. 
 State v. Tubessing, 198. 
 State Bank v. Chapelle, 330. 
 State Bank v. Ellis, 552. 
 State Bank v. Harrow, 241, 532. 
 Steadman v. Jones, 458. 
 Steadman v. Wilbur, 306, 312. 
 Stearns v. Gage, 219, 232, 494. 
 Stebbins v. Miller, 592, 604. 
 Stedman v. Vickery, 125, 225, 485. 
 Steel v. Brown, 62, 149. 
 Steele v. Moore, 188, 553. 
 Steele v. Parsons, 37, 57. 
 Steele v. Ward, 49, 57. 
 Steelwagon v. Jeffries, 72, 143, 153, 
 
 164. 
 
lx 
 
 TABLE OF CASES CITED. 
 
 Steere v. Hoagland, 44, 57, 541, 
 
 610. 
 Stehrman v. Huber, 479. 
 Stein v. Herman, 199. 
 Stein v. La Dow, 351. 
 Stein v. Munch, 125, 130. 
 Sleinart v. Deuster, 127. 
 Stephens v. Barnett. 134, 144, 163, 
 
 260, 263, 264, 524, 525, 563. 
 Stephens v. Beall, 536. 
 Stephens v. Harris, 226. 
 Stephens v. Harrow, 448. 
 Stephens v. Olive, 305. 
 Stephens v. Sinclair, 242, 257. 
 Stephenson v. Clark, 136, 137, 140, 
 
 143. 
 Stephenson v. Hayward, 334. 
 Sterling v. Ripley, 56, 112, 197, 
 
 202. 
 Stern's Appeal, 517. 
 Stern v. Fisher, 388, 416, 573. 
 Stern v. Henley, 141. 
 Stetson v. Miller, 331. 
 Stevens v. Bell, 213, 333, 346, 386, 
 
 394, 408. 
 Stevens v. Dillman, 45, 53, 58. 
 Stevens v. Fisher, 102, 104, 111, 
 
 152. 
 Stevens v. Hinckley, 41, 225, 228. 
 Stevens v. Irwin, 134, 135, 141, 176. 
 Stevens v. Morse, 446. 
 Stevens v. Olive, 277, 278. 
 Stevens v. Robinson, 275. 
 Stevenson v. Agry, 394. 
 Stevenson v. White, 246, 482. 
 Stevers v. Home, 281. 
 Steward v. Lombe, 144. 
 Steward v. Thomas, 122, 587. 
 Stewart v. Ackley, 444, 448. 
 Stewart v. Coder, 530. 
 Stewart v. Cohn, 241. 
 Stewart v. Dailey, 444." 
 Stewart v. English, 357, 365, 533. 
 Stewart v. Fagan, 534. 
 Stewart v. Fenner, 583, 591. 
 Stewart v. Hall, 339. 
 Stewart v. Hopkins, 40. 
 Stewart v. Inglehart, 444, 448, 450. 
 Stewart v. Isidor, 543, 545. 
 Stewart v. Johnson, 481, 585. 
 Stewart v. Kearney, 444, 445. 
 Stewart v. Kerrison, 330, 378, 436. 
 Stewart v. Rogers, 282. 
 Stewart v. Scannell, 134. 
 Stewart v. Slater, 111, 116, 231. 
 
 Stewart v. Spencer, 336, 337, 361, 
 
 362, 403, 439. 
 Stewart v. Thompson, 563. 
 Stewart v. Wilson, 37. 
 Stickney v. Borman, 281. 
 Stickney v. Crane, 355, 361, 60S. 
 Stileman v. Ashdown, 304, 315. 
 Stiles v. The Attorney General, 
 
 226 227 
 Stiles v.'Liglitfoot, 279, 319, 603. 
 Stiles v. Shumway, 137, 143, 153, 
 
 154. 
 Stiles v. Whitaker, 236. 
 Stillwell v. Mellersh, 244. 
 Stimson v. Wrigley, 114, 120, 504. 
 Stirling v.Van Cleve, 517, 518, 519. 
 Stockett v. Holliday, 306, 309, 594. 
 Stockwell v. Silloway, 583. 
 Stoddard v. Butler, 38, 62, 67, 71, 
 
 74, 76, 101, 102,106, 116, 131, 
 
 191, 483. 
 Stokes' Case, 524. 
 Stokes v. Coffey, 239, 612. 
 Stokes v. Jones, 219, 498. 
 Stokoe v. Cowan, 239, 485. 
 Stone v. Anderson, 536. 
 Stone v. Bartlett, 458, 499. 
 Stone v. Grubban, 28, 36, 39, 62, 
 
 82, 156, 484. 
 Stone v. Locke, 458. 
 Stone v. Manning, 534. 
 Stone v. Marshall, 361, 384, 393. 
 Stone v. Myers, 327, 507. 
 Stone v. Waggoner, 112. 
 Stoner v. Commonwealth, 308. 459. 
 Stores v. Snow, 456. 
 Storm v. Davenport, 413, 484. 
 Storm v. Waddell, 545, 572. 
 Storm v. Woods, 517. 
 Stout v. Stout, 470, 510, 550. 
 Stovall v. Farmers' Bank, 21, 120, 
 
 205, 209, 261, 263, 264, 265, 
 
 585, 586, 614. 
 Stover v. Harrington. 43, 184. 
 Stowell v. Hazlett, 223, 583, 588. 
 Streeper v. Eckhardt, 38, 134, 155. 
 Strieker v. Tinkham, 513. 
 Strike v. McDonald, 551, 552, 560, 
 
 561, 573, 612, 618, 619. 
 Strohm v. Hayes, 46, 530. 
 Strong v. Brewer, 587. 
 Strong v. Carrier, 344, 378. 
 Strong v. Hines, 59. 
 Strong v. Skinner, 383, 387, 405, 
 
 608, 619. 
 
TABLE Or CASES CITED. 
 
 lxi 
 
 Strong v. Strong, 271, 288. 
 Strong v. Taylor, 235, 236. 
 Strong v. Willis, 465. 
 Stuck v. Mackey, 218. 
 Sturdivant v. Davis, 25, 211, 215, 
 
 219, 524. 
 Sturtevant v. Ballard, 26, 97, 111, 
 
 132, 152, 153. 
 Sugg v. Tillman, 404. 
 Suiter v. Turner, 122, 495. 
 Sullicev. Gradenigo, 112, 445. 
 Sullivan v. Bonesteele, 459. 
 Summers v. Babb, 481. 
 Summers v. Hoover, 223. 
 Summers v. Howland, 40, 53, 583. 
 Summers v. Roos, 112, 127, 128, 
 
 130, 232, 327. 
 Sumner v. Hicks, 342, 417. 
 Sumner v. Murphy, 444. 
 Sumner v. Sawtelle, 241, 482. 
 Surget v. Boyd, 198. 
 Surlott v. Beddow, 457. 
 Susong v. Williams, 224. 
 Sutter v. Lackman, 588, 590, 600. 
 Sutton v. Hanford, 19, 20, 417. 
 Sutton v. Lord, 492. 
 Sutton v. Pettus, 522. 
 Sutton v. Shearer, 176. 
 Suydam v. Beals, 538. 
 Swamscott Machine Co. v. Perry, 
 
 546. 
 Swan v. Crafts, 333. 
 Swan v. Smith, 503, 540. 
 Swanzey v. Hunt, 506. 
 Swartz v. Hazlett, 198, 232, 252, 
 
 268, 270, 282, 285, 290, 292, 
 
 488. 
 Swayze v. McCrossin, 280. 
 Swearingen v. Slicer, 336. 
 Sweeney v. Damron, 277, 309. 
 Sweet v. Tinslar, 448. 
 Sweetster v. Bates, 591, 592. 
 Sweetzer v. Mead, 581, 599. 
 Sweny v. Ferguson, 322. 
 Swift v. Avents, 531. 
 Swift v.Hart, 111. 
 Swift v. Holdridge, 608. 
 Swift v. Lee, 47, 49, 51, 52, 58. 
 Swift v. Thompson, 72, 76, 113, 
 
 136, 149, 153, 157, 166, 484, 
 
 546. 
 Swigert v. Thomas, 517, 519. 
 Swihart v. Shaum, 576. 
 Swindersine v. Miscally, 508. 
 Swinerton v. Swinerton, 197. 
 
 Swinford v. Rogers, 487, 609. 
 Sydnot v. Gee, 66, 110, 155, 158, 
 
 165, 173, 215. 
 Synge v. S.ynge, 125. 
 Syracuse Chilled Plow Co. v. Wing, 
 
 194, 306, 312. 
 
 Taaffe v. Josephson, 486. 
 
 Talcott v. Rosenthal, 358. 
 
 Talcott v. Wilcox, 141, 144. 
 
 Tallmadge v. Sill, 244. 
 
 Tallon v. Ellison, 127. 
 
 Tarns v. Bullitt, 507. 
 
 Tarns v. Richards, 609. 
 
 Tanner v. Byrne, 227. 
 
 Tantum v. Miller, 452. 
 
 Tappan v. Butler, 50, 241, 316, 
 
 319. 
 Tappan v. Evans, 240, 531, 533, 
 
 538, 543. 
 Tappan v. Nutting, 575. 
 Tarbackv. Marbury, 39, 51, 218, 
 
 326. 
 Tarbell v. Griggs, 539. 
 Tarleton v. Liddell, 489. 
 Tarver v. Roffe, 60, 
 Tate v. Liggatt, 464, 467, 534. 
 Tatum v. Hunter, 486. 
 Tavenner v. Robinson, 36, 44, 53, 
 
 108,111,163.. 
 Taylor v. Bowers, 444. 
 Taylor v. Coenen, 281, 323. 
 Taylor v. Eubanks, 269, 275, 276, 
 
 279, 291, 578. 
 Taylor v. Heriot, 241, 276, 282, 
 
 291, 295, 309, 508. 
 Taylor v. Jones, 221, 240, 268, 315, 
 
 533 
 Taylor v. Mills, 71, 121, 164. 
 Taylor v. Moore, 44, 310, 595, 618. 
 Taylor v. Persee, 537. 
 Taylor v. Robinson, 534, 583, 587. 
 Taylor v. Webb, 549, 588. 
 Taylor v. Williams, 480. 
 Taylor v. Weld, 448, 505. 
 Taylor v. Wyld, 549. 
 Teasdale v. Reaborne, 291. 
 Tedrowe v. Esher, 585, 586, 590. 
 Teed v. Valentine, 279, 517. 
 Teeter v. Williams, 248. 
 Telford v. Adams, 455. 
 Teller v. Bishop, 309. 
 Tennent v. Butler, 536. 
 Tennessee Nat'l Bank v. Erbert, 
 
 125. 
 
lxii 
 
 TABLE OP. CASES CITED. 
 
 Terrell v. Green, 31, 209. 
 Terrell v. Imboden, 444. 
 Terry v. Belcher, 112, 184. 
 Terry v. Butler, 378, 384. 
 Tervis v. Doe, 242, 530. 
 Thacher v. Phinney, 279. 
 Thames v. Rembert, 33, 34, 203, 
 
 493, 496, 556, 600. 
 Thayer v. Willett, 506. 
 Therasson v. Hickok, 405, 472, 549, 
 
 608, 619. 
 Thigpen v. Pitt, 546. 
 Thomas v. Beck, 583. 
 Thomas v. Goodwin, 608. 
 Thomas v. De Graffenreid, 280, 
 
 319, 589. 
 Thomas v. Hillhouse, 131, 172. 
 Thomas v. Jenks, 436. 
 Thomas v. Phillips, 544. 
 Thomas v. Soper, 445, 
 Thomas v. Tallmadge, 361, 403. 
 Thomason v. Neeley, 482, 558. 
 Thompson's Appeal, 522. 
 Thompson v. Bickford, 609, 614, 
 
 615. 
 Thompson v. Blanchard, 108, 111. 
 Thompson v. Drake, 36, 37, 43, 59, 
 
 615, 618. 
 Thompson v. Feagin, 40, 306. 
 Thompson v. Purr, 190, 198. 
 Thompson v. Hammond, 275. 
 Thompson v. Lee, 492. 
 Thompson v. McKean, 492. 
 Thompson v. Moore, 459. 
 Thompson v. Paret, 151. 
 Thompson v. Pennell, 42, 615. 
 Thompson v. Sanders, 197, 603. 
 Thompson v. Thompson, 465, 508. 
 Thompson v. Towne, 244. , 
 Thompson v. Van Vetchen, 517, 
 
 520. 
 Thompson v. Webster, 209, 257, 
 
 271, 275, 276, 282, 288, 289, 
 
 295. 
 Thompson v. White, 134, 165, 170. 
 Thompson v. Yeck, 161. 
 Thomson v. Dougherty, 13, 221, 
 
 268, 269, 276, 277, 316, 317, 
 
 322, 324, 325, 476, 484, 506. 
 Thornburgh v. Hand, 463. 
 Thornbury v. Baxter, 549, 550. 
 Thornton v. Davenport, 38, 113, 
 
 156, 188. 
 Thornton v. Hook, 493, 600. 
 Thornton v. Tandy, 189, 588. 
 
 Thorpe v. Bevans, 218, 266. 
 Thorpe v. Thorpe, 186. 
 Thouron v. Pearson, 40. 
 Thrall v. Spencer. 483. 
 Thurber v. Blanck, 537. 
 Thuret v. Jenkins, 514. 
 Thurmond v. Andrews, 545. 
 Thurmond v. Reese, 536. 
 Tibbals v. Jacobs, 178. 
 Tichenor v. Allen, 545, 549. 
 Tickner v. Wiswall, 125, 487. 
 Ticknor v. McClelland, 165. 
 Tiffany v. Warren, 462. 
 Tifft v. Barton, 117, 119. 
 Tift v. Walker, 42. 
 Tifts v. Bunker, 599. 
 Tilford's Case, 388. 
 Tillou v. Britton, 180, 186. 
 Tobias v. Francis, 72, 157, 166. 
 Toby v. Reed. 76. 
 Todd v. Bucknam, 336, 337, 345, 
 
 435 437 514. 
 Todd v. Hartley, 280, 320, 322, 325. 
 Todd v. Monell, 219. 
 Todd v. Neal, 621. 
 Tognini v. Kyle, 23, 43, 600. 
 Tomes, Francis, In re, 259. 
 Tomlin v. Crawford, 497. 
 Tomlinson v. Matthews, 186, 306. 
 Tompkins v. Nichols, 58, 122, 197, 
 
 603. 
 Tompkins v. Sprout, 617. 
 Tompkins v. Wheeler, 335, 347, 
 
 378, 394, 397. 
 Toole v. Darden, 499. 
 Tootle v. Dunn, 197. 
 Torbert v. Hayden, 125. 
 Totten v. Brady, 184. 
 Toulmin v. Buchanan, 274, 298. 
 Towle v. Hoitt, 42, 216, 483, 485. 
 Town v. Bank, 396. 
 Towne v. Fiske, 111. 
 Townsend v. Empire Co., 231. 
 Townsend v. Harwell, 337, 361. 
 Townsend v. Maynard, 292. 
 Townsend v. Stearns, 355, 365, 366, 
 
 414. 
 Townsend v. Tuttle, 502. 
 Townsend v. Westacott, 278, 282, 
 
 283, 572, 573, 574. 
 Townsend v. Windham, 244, 277, 
 
 280, 319. 
 Towsley v. McDonald, 179, 225. 
 Trabue v. Willis, 128, 129. 
 Tracy v. Walker, 259. 
 
TABLE OF CASES CITED. 
 
 lxiii 
 
 Train v. Wellington, 523. 
 
 Traip v. Gould, 531. 
 
 Trask v. Bowers, 76, 113, 134, 142, 
 
 144. 
 Treadwell v. Brown, 533. 
 Trego v. Skinner, 551. 
 Trempner v. Barton. 444, 446. 
 Tresch v. Wirtz, 250, 252. 
 Trezevant v. Courtenay, 582. 
 Trieber v. Andrews, 114, 197. 
 Trieber v. Green, 437. 
 Trimble v. Doty, 451. 
 Trimble v. Eatcliffe, 35, 44, 49, 58, 
 
 209, 268, 281, 292. 295, 606. 
 Trimble v. Turner, 25, 263, 264, 
 
 265, 324, 585. 
 Trimble v. Woodhead, 545. 
 Triplett v. Witherspoon, 446. 
 Tripner v. Abrahams, 313, 587, 605. 
 Tripp v. Childs, 58, 248, 249. 
 Tripp v. Vinceat, 43, 324, 566, 616. 
 Trippe v. Ward, 541. 
 Trott v. Warren, 492. 
 Trotter v. Howard, 111. 
 Trotter v. Watson, 589, 590. 
 Trough, Henry, In re, 292. 
 Troughton v. Troughton, 244. 
 Troustine v. Lask,l94, 488. 
 Troxall v. Dunnock, 197. 
 True v. Congdon, 354, 394, 422, 423. 
 Truitt v. Caldwell, 405, 415, 417. 
 Truitt v. Ludwig, 517, 520. 
 Truscott v. King, 231, 232. 
 Trust Co. v. Sedgwick, 283. 
 Tubb v. Williams, 35, 37, 44, 47, 
 
 57, 479, 609, 615. 
 Tucker v. Bond, 519. 
 Tucker v. Drake, 245. 
 Tucker v. Zimmerman, 550. 
 Tuesley v. Bobinson, 444. 
 Tufts v. Du Bignon, 456. 
 Tuite v. Stevens, 478. 
 Tully v. Harloe, 232. 
 Tuneson v. Chamberlin, 320. 
 Tunnell v. Jefferson, 213, 225. 
 Tunno v. Trezevant, 296. 
 Tupper v. Thompson, 219. 
 Turberville v. Tipper, 29. 
 Turbeville v. Gibson, 43, 616. 
 Turner v. Campbell, 454. 
 Turner v. Coolidge, 169. 
 Turner v. Jaycox, 365, 392. 
 Turner v. Turner, 505. 
 Turner v. Vaughan, 482. 
 Turnley v. Hooper, 295. 
 
 Turvil v. Tupper, 506. 
 
 Tuttle v. Turner, 497, 585. 
 
 Twyne's Case, 9, 10, 12, 31. 35, 37, 
 38, 40, 51, 78, 191, 199, 214, 
 221, 268, 273, 314, 503, 506. 
 
 Tyberant v. Raucke, 58, 198. 
 
 Tyler v. Angevine, 582. 
 
 Tyler v. Carlton, 597. 
 
 Tyler v. Duke of Leeds, 521. 
 
 Tyler v. Peatt, 536, 538. 
 
 Tyner v. Summerville, 219. 
 
 Tyrer v. Littleton, 22. 
 
 Uhl v. Dillon, 527. 
 
 TJhler v. Maulfair, 188, 207. 
 
 Ulmer v. Hills, 111. 
 
 Unger v. Price, 310. 
 
 Union Bank v. Ellicott, 350. 
 
 Union Bank v. Toomer, 197, 209, 
 
 225, 295. 
 Union Mutual Life Ins. Co. v. 
 
 Sandfelder, 320. 
 Union Mutual Life Ins. Co. v. 
 
 Spaids, 320. 
 Union Nat'l Bank v. Warner, 190, 
 
 548, 549, 555. 
 Updike v. Titus, 223, 232. 
 Upson v. Eaiford, 155, 589. 
 Upton v. Craig, 327. 
 Usher v. Hazletine, 220, 319, 509. 
 Utley v. Smith, 142. 
 U. S. v. Bank of United States, 335, 
 
 343, 354, 394, 396, 427, 512. 
 U. S. v. Conyngham, 517. 
 
 U. S. v. Griswold, 327, 474, 589, 
 
 595 612. 
 U. S. v.'Hoo'e, 62, 156, 157, 231 » 
 U. S. v. Lennox, 231. 
 U. S. v. Lottridge, 37, 49. 
 U. S. v. Mertz, 228, 232, 253, 581, 
 
 595 
 U. S. v." Poole, 473. 
 U. S. v. Steiner, 315, 507. 
 U. S. Bank v. Huth, 332, 334, 338, 
 
 344, 345, 349, 354, 360, 374, 
 394, 424, 426, 427, 512, 514. 
 
 Van Bibber v. Mathes, 222, 281. 
 Van Buskirk v. Warren, 108, 111, 
 
 213, 404, 418, 512. 
 Van Deuysen v. Frink, 18. 
 Van Dine v. Willett, 421. 
 Van Etten v. Hurst, 459. 
 Van Hook v. Walton, 345, 347, 
 
 358, 378, 379, 388, 407. 
 
lxiv 
 
 TABLE OF CASES CITED. 
 
 Van Keuren v. McLaughlin, 484. 
 Van Kirk v. Wilds, 506, 583, 590. 
 Van Kleeck v. Miller, 40, 205, 223, 
 
 312 551 
 Van Nest v'. Yoe, 346, 367, 370. 
 
 371, 372, 374, 378, 390, 420, 
 
 421, 423, 466, 472. 
 VanPelt v. Littler, 176. 
 Van Rossum v. Walker, 391, 407, 
 
 416, 417. 
 Van "Vleet v. Slauson, 346. 
 Van Winkle v. McKee, 340, 434. 
 Van Winkle v. Smith, 52, 609. 
 Van Wy v. Clark, 455, 457. 
 Van Wyck v. Baker, 45, 567, 621. 
 Van Wyck v. Seward, 232, 268, 
 
 270, 271, 272, 284, 288, 294, 
 
 503, 507, 619. 
 Vallance v. Miners' Insurance Co., 
 
 213 
 Vance v. Phillips, 30, 119. 
 Vance v. Smith, 278, 319, 504, 587. 
 Vandall v. Vandall, 35, 55, 57. 
 Vanderheyden v. Mallory, 238. 
 Vandyke v. Christ, 484. 
 Vanmetre v. Vanmetre, 228. 
 Vansands v. Miller, 374. 
 Vanzant v. Davies, 446. 
 Varnum v. Camp, 394, 513, 514. 
 Vasser v. Henderson, 535, 543. 
 Vaughan v. Evans, 386, 405, 409, 
 
 417. 
 Vaughan v. Thompson, 245, 482. 
 Veazie v. Holmes, 236. 
 Venable v. Bank, 35, 37, 43, 49, 
 
 52, 54, 55, 57, 550, 588. 
 Verner v. Downs, 536. 
 Verney's Case, 255. 
 Vernon v. Morton, 378, 379, 393, 
 
 420, 421, 424. 
 Verselius v. Verselius, 548. 
 Vertner v. Humphreys, 322. 
 Viall v. Bliss, 333. 
 Vick v. Keys, 39, 111. 
 Violett v. Violett, 197. 
 Visher v. Webster, 144, 165, 587. 
 Vogler v. Montgomery, 482. 
 Vogt v. Ticknor, 575, 595. 
 Voorhis v. Bonesteel, 250. 
 Voorhis v. Langsdorf, 126. 
 Vose v. Holcombe, 434, 468. 
 Vose v. Stickney, 128, 184. 
 Vredenbergh v. White, 97, 378, 
 
 393. 
 Vrooman v. Griffith, 250. 
 
 Waddams v. Humphreys, 14, 185. 
 Waddingham v. Loker, 249, 603. 
 Wade v. Green, 459. 
 Wade v. Saunders, 470, 493. 
 Wadsworth v. Havens, 327, 476, 
 
 543. 
 Wadsworth v. Williams, 543. 
 Waggoner v. Cooley, 500, 501, 
 
 589. 
 Wagner v. Johns, 127, 476. 
 Wait v. Bull's Head Bank, 125, 
 
 230. 
 Wait v. Day, 229, 242. 
 Waite v. Hudson, 184. 
 Wake v. Griffin, 37, 311. 
 Wakefield v. Gibbon, 489, 573. 
 Walcott v. Almy, 36, 49, 58, 242, 
 
 281; 532. 
 Walcott v. Brander, 199. 
 Walcott v. Keith, 171, 589. 
 Walden v. Murdock, 165, 167, 173, 
 
 188. 
 Waldie v. Doll, 176. 
 Waldron v. Haupt, 236. 
 Wales v. Aldcn, 514. 
 Walker, John C, In re, 378, 403, 
 
 417. 
 Walker v. Adair, 184, 375. 
 Walker v. Burrows, 17, 277, 319, 
 
 597. 
 Walker v. Lovell, 464. 
 Walker v. McConnico, 455. 
 Walker v. Beamy, 313. 
 Walker v. Snediker, 111, 232. 
 Wall v. Fairly, 241, 547, 549. 
 Wall v. Provident Institution, 446. 
 Wall v. White, 483. 
 Wallace v. Eaton, 548. 
 Wallace v. Treakle, 570. 
 Waller v. Cralle, 137, 153. 
 Waller v. Mills, 454. 
 Waller v. Shannon, 550, 551. 
 Waller v. Todd, 113, 159, 178, 483, 
 
 540, 547. ' 
 Walradt v. Brown, 503, 504, 508. 
 Walrath v. Campbell, 581. 
 Walsh v. Kelly, 185, 230. 
 Walter v. McNabb, 57, 559. 
 Walter v. Reihl, 550. 
 Walter v. Wimer, 125, 126. 
 Walters v. McLellan, 62. 
 Walters v. Whitlock, 378, 512, 513, 
 
 515. 
 Walthall v. Rives, 60, 551. 
 Walton v. Bonham, 455. 
 
TABLE OF CASES CITED. 
 
 Ixv 
 
 Walton v. Tusten, 448, 459. 
 Walworth v. Eeadsboro, 166. 
 Walwyn v. Coutts, 339. 
 Wanamaker v. Bowes, 462. 
 Ward v. Crotty, 310, 618. 
 Ward v. Enders, 327, 568. 
 Ward v. Hollins, 325, 549. 
 Ward v. Lamberth, 263. 
 Ward v. Lamson, 333. 
 Ward v. McKenzie, 462. 
 Ward v. Shallett, 309, 606. 
 Ward v. Sumner, 156. 
 Ward v. Tingley, 367, 383, 421. 
 Ward v. Trotter, 334, 359, 495. 
 Ward v. Van Bokkellin, 507. 
 Ward v. Wehman, 53. 
 Warden v. Browning, 571. 
 Warden v. Jones, 224, 239, 303, 
 
 304. 
 Ware v. Gardner, 317. 
 Warmoll v. Young, 522, 523. 
 Warneford's Case, 29. 
 Warner v. Blakeman, 260, 608, 612. 
 Warner v. Carlton, 136, 141. 
 Warner v. Dove, 289, 578. 
 Warner v. Norton, 39, 112, 166. 
 
 170. 
 Warner v. Percy, 29, 577. 
 Warner v. Warren, 27. 
 Warren v. Hall, 462, 524, 526. 
 Warren v. Ranney, 306, 311. 
 Warren v. Williams, 506, 583, 591. 
 AVash v. Medley, 48, 113, 154. 
 Washband v. Washband, 222, 227, 
 
 267. 
 Watchman, The, 431, 434, 513. 
 Waterburv v. Sturtevant, 184, 185, 
 
 186, 188, 197, 201, 585, 586. 
 Waterbury v. Westervelt, 481. . 
 Waterhouse v. Benton, 465. 
 Waterman v. Donalson, 44, 57, 
 
 603. 
 Waterman v. Sturtevant, 559, 560. 
 Waters v. Comly, 335. 
 Waters v. Dashiel, 507, 579, 591. 
 Waters v. McClellan, 161. 
 Waters v. Riggin, 42, 197, 581, 
 
 589, 596. 
 Waterson v. Wilson, 319. 
 Watkins v. Birch, 62, 162, 163. 
 Watkins v. Jenks, 395. 
 Watkins v. Wallace, 367, 369, 419, 
 
 420, 593, 605. 
 Watrous v. Lathrop, 536. 
 Watson v. Dickens, 200. 
 
 Watson v. Kennedy, "57, 609. 
 Watson v r X. Y. Central 11. R. 
 
 Co., 572. 
 Watson v. Williams, 112, 156, 157. 
 Watts v. Gale, 541. 
 Watts v. Kilburn, 511. 
 Watts v. Thomas, 214, 325. 
 Waverly Nat'l Bank v. Halsey, 
 
 358, 402, 403. 
 Way v. Bragan, 546, 551. 
 Wearse v. Pierce, 456. 
 Weaver v> Ashcroft, 259, 583. 
 Weaver v. Joule, 96, 128, 158. 
 Weaver v. Wright, 57. 
 Webb v. Brown, 500. 
 Webb v. Daggett, 384, 572, 573. 
 Webb v. Roff, 193, 218, 322. 
 Weber v. Armstrong, 127. 
 Weber v. Samuel. 436, 541, 608. 
 Webster v. Clark, 534. 
 Webster v, Folsom, 197, 242, 530. 
 Webster v. Harper, 523. 
 Webster v. Hildreth, 243, 248, 251. 
 Webster v. Peck, 155. 
 Webster v. Witliey, 219, 242, 534. 
 Wedekind v. Parsons, 554. 
 Weed v. Davis, 269, 292. 
 Weed v. Pierce, 15, .240, 533, 571, 
 
 612. 
 Weeden v. Bright, 222. 
 Weeden v. Hawes, 43, 61C. 
 Weeks v. Hill, 222. 
 Weeks v. Prescott, 139, 143. 
 Weeks v. Weed, 113, 132, 133, 101, 
 
 175, 177. 
 Weightman v. Hatch, 535, 539. 
 Weil v. Paul, 141, 149, 161, 177. 
 Weil v. Silverstone, 581. 
 Weinrich v. Porter, 588. 
 Weir v. Hale. 518, 520, 
 Weise v. Wardle, 548. 
 Weisiger v. Chisholm, 30, 199. 
 Weisner v. Farnham, 57. 
 Welby v. Armstrong, 455. 
 Welch v. Kline, 250. 
 Welcome v. Batchelder, 190, 281. 
 Welcker v. Price, 281, 557. 
 Weller v. Wayland, 28, 174, 187, 
 
 487. 
 Welles v. Cole, 227, 297. 
 Welles v. March, 351. 
 Wellington v. Puller, 281. 
 Wellington v. Small, 528. 
 Wells v. Stout, 305, 319. 
 Wells v. Thomas, 44, 59. 
 
lxvi 
 
 TABLE OF CASES CITED. 
 
 Welsh v. Bekey, 121, 125, 157, 
 
 167, 177, 445. 
 Welsh v. Welsh, 445. 
 Wescott v. Guan, 231. 
 West v. Saunders, 240, 437, 533. 
 West v. Skip, 519. 
 West v. Snodgrass, 218. 
 West v. Tupper, 348, 513. 
 Westerman v. Westerman, 543. 
 Westfall v. Jones, 456. 
 Westlake v. Ridout, 255. 
 Westmoreland v. Powell, 11,-284, 
 
 504. , 
 
 Whallon v. Scott, 380. 
 Wheaton v. Neville, 21, 185, 187, 
 
 189. 
 Whedbee v. Stewart, 437. 
 Wheedon v. Champlin, 248, 250. 
 Wheelden v. Wilson, 20, 35, 51, 
 
 56 593. 
 Wheeler v. Caryl, 304, 305, 308. 
 Wheeler v. Emerson, 308. 
 Wheeler v. Kirtland, 608. 
 Wheeler v. Konst, 236. 
 Wheeler v. Sumner, 332, 334. 
 Wheeler v. Taylor, 534. 
 Wheeler v. Train, 155. 
 Whigman's Appeal, 170. 
 Whipple v. Cass, 523. ' 
 Whipple v. Foot, 521. 
 Whipple v. Pope, 365, 366, 418, 423. 
 Whipple v. Thayer, 514. 
 Whitaker v. Garnett, 595. 
 Whitaker v. Sumner, 42. 
 White v. Banks, 608. 
 White v. Beltis, 292, 319, 509, 605. 
 White v. Brocaw, 457. 
 White v. Cole, 104. 
 White v. Cooper, 237. 
 White v. Graves, 192, 205, 615. 
 White v. Hildreth, 251. 
 White v. Monsarrat, 419, 427. 
 White v. Morris, 463. 
 White v. Perry, 200, 588, 602. 
 White v. Russell, 445, 503. 
 White v. Sansom, 244, 309, 324, 
 
 507 572. 
 White v'. Trotter, 263, 264, 265. 603. 
 White v. White, 483. 
 White v. Winn, 434. 
 White v. Witt, 292. 
 Whitehall v. Crawford, 479. 
 Whitescarver v. Bonney, 319. 
 Whitesel v. Hiney, 554. 
 Whitfield v. Whitfield, 461. 
 
 Whithead v. Mallory, 482. 
 Whithed v. Pillsbury, 485. 
 Whiting v. Barrett, 245, 620. 
 Whiting v. Johnson, 486, 521, 595, 
 
 599 
 Whitmo're v. Woodward, 327, 550. 
 Whitney v. Brunette, 112. 
 Whitney v. Freeland, 468. 
 Whitney v. Krows, 418, 420. 
 Whitney v. Stark, 113. 
 Whitney v. Stearns, 241. 
 Whittacre v. Fuller, 227. 
 Whittier v. Prescott, 292. 
 Whittier v. Varney, 583. 
 Whittington v. Jennings, 244, 323. 
 Whittlesey v. McMahon, 241, 307. 
 Wich v. Parker, 556. 
 Wickes v. Clark, 306, 308, 311, 597. 
 Wickham v. Miller, 98, 199. 
 Widgery v. Haskell, 333, 335, 434. 
 Wieman v. Anderson, 312. 
 Wiener v. Davis, 329, 395. 
 Wiggins v. Armstrong, 527. 
 Wightman v. Hart, 57, 559. 
 Wilbur v. Fradenburgh, 320, 322, 
 
 324 379. 
 Wilbur v. Strickland, 589. 
 Wilcox v. Fitch, 504. 
 Wilcox v. Kellcgg, 258. 
 Wilcox v. Watson, 524. 
 Wilde v. Rawlings, 434. 
 Wilder v. Brooks, 292. 
 Wilder v. Fondey, 43, 486. 
 Wilder v. Winne, 186, 188, 231. 
 Wilding v. Richards, 340. 
 Wilds v. Bogan, 600. 
 Wiley v. Bradley, 554. 
 Wiley v. Collins, 333, 393. 
 Wiley v. Gray, 310. 
 Wiley v. Knight, 47, 129, 205, 614. 
 Wiley v. Lashlee, 42, 184, 186. 
 Wilhelmi v. Leonard, 125, 254, 463, 
 
 521. 
 Wilkes v. Ferris, 394, 404. 
 Wilkinson v. Wilkinson, 186. 
 Willetts v. Vandenburgh, 534. 
 Williams, Ex parte, 258. 
 Williams v. Anderson, 24. 
 Williams v. Avent, 444, 480. 
 Williams v. Avery, 327. 
 Williams v. Banks, 285, 288, 315, 
 
 325, 509, 561, 591. 
 Williams v. Barnett, 34. 
 Williams v. Bizzell, 464. 
 Williams v. Brown, 184, 534. 
 
TABLE OF GASES CITED. 
 
 lxvii 
 
 Williams v. Chesebrough, 44, 51. 
 Williams v. Davis, 19, 278, 317, 320. 
 Williams v. Evans, 22. 
 Williams v. Frost, 351. 
 Williams v. Gartrell, 395. 
 Williams v. Hubbard, 536, 538. 
 Williams v. Jones, 184, 185, 510. 
 Williams v. Kelsey, 45, 120, 589. 
 Williams v. Lomas, 244. 
 Williams v. Lowe, 496. 
 Williams y. Lowndes, 58, 111, 152. 
 Williams v. Merritt, 544. 
 Williams v. Michenor, 530, 547, 
 
 550. 
 Williams v. Robbins, 228, 590. 
 Williams v. Thompson, 480. 
 Williams v. Tipton, 540. 
 Williams v. Williams, 445, 456. 
 Williamson v. Farley, 108, 111. 
 Williamson v. Goodwyn, 44, 49, 614. 
 Williamson v. Johnston, 519, 522. 
 Willies v. Farley, 589. 
 Williford v. Conner, 460, 461. 
 Willingham v. Smith, 49. 
 Willis v.. Gattman, 281. 
 AVillison v. Desinberg, 43. 
 Williston v. Jones, 127, 130. 
 Wills v. Monroe, 473. 
 Wilson, In re, 436, 438, 441, 473, 
 
 608. 
 Wilson v. Ayer, 179, 225, 309, 499. 
 Wilson v. Berg, 357, 402. 
 Wilson v. Britton, 397. 
 Wilson v. Buchanan, 275, 276, 282, 
 
 283, 291, 292, 323, 563. 
 Wilson v. Butler, 57. 
 Wilson v. Cheshire, 213. 
 Wilson v. Eifler, 361, 396. 
 Wilson v. Ferguson, 377, 379, 418, 
 
 591 
 Wilson 'v. Forsyth, 19, 180, 300, 
 
 361, 369, 403, 581, 592. 
 Wilson v. Fuller, 29, 197. 
 Wilson v. Hensley, 519. 
 Wilson v. Hillhouse, 595. 
 Wilson v. Hooper, 68, 132, 133, 
 
 137, 145. 
 
 Wilson v. Horr, 43, 57, 566, 607, 
 
 613, 615. 
 Wilson v. Howser, 279. 
 Wilson v. Jordan, 45. 
 Wilson v. Kohlheim, 275, 292. 
 Wilson v. Loomis, 251. 
 Wilson v. Lott, 26. 33, 35, 56, 57, 
 
 138, 141, 145, 197, 208, 606. 
 
 Wilson v. Pearson, 359. 
 
 Wilson v. Robertson, 230, 389, 418. 
 
 Wilson v. Russell, 156, 213, 223, 
 
 231. 
 Wilson v. Sheppard, 310. 
 Wilson v. Silkman, 306. 
 Wilson v. Wormal's Case, 486, 492. 
 Wilt v. Franklin, 21, 62, 334, 343, 
 
 346, 347, 348, 355, 374, 408. 
 Winch's Appeal, 5.30. 
 Winch v. James, 193, 218. 
 Winchester v. Charter, 275, 317, 
 
 582, 588. 
 Winchester v. Orandall, 374, 549. 
 Winchester v. Reid, 227, 233. 
 Winebrenner v. Weisiger, 240, 
 
 320, 533. 
 Wineland v. Coonce, 492. 
 Winer v. Warner, 29. 
 Winfield v. Adams, 592. 
 Winkley v. Hill, 42. 
 Winn v. Barnett, 319, 445, 541. 
 Winter v. Walter, 313. 
 Wintringham v. Lafoy, 407. 
 Wintringham v. Wintringham, 521 . 
 Wise v. Darby, 517. 
 Wise v. Moore, 198, 268. 
 Wise v. Tripp, 255, 493. 
 Wise v. Winer, 361. 
 Wisner v. Farnham, 49. 
 Wiswall v. Ticknor, 120, 128. 
 Wiswell v. Jarvis, 292. 
 Witherden v. Jumper, 320. 
 Wolf v. Carothers, 587, 593. 
 Wolfe v. Beecher Manuf. Co., 444. 
 Wolverhampton Bank v. Marston, 
 
 350, 355. 
 Wood v. Carpenter, 565. 
 Wood v. Chambers, 199, 245, 620. 
 Wood v. Dixie, 21, 187. 
 Wood v. Gary, 517. 
 Wood v. Goff, 616. 
 Wood v. Hunt, 198, 268, 484, 614, 
 
 621. 
 Wood v. Jackson, 498. 
 Wood y. Lowry, 125. 
 Wood v. Robinson, 538. 
 Wood v. Savage, 224, 241, 304. 
 Wood v. Scott, 43. 
 Wood v. Shaw, 50, 205, 206. 
 Wood v. Steele, 459. 
 Wood v. Wright, 496, 571. 
 Woodbridge v. Perkins, 121, 177. 
 Woodburn v. Mosher, 414, 427. 
 Wooderman v.Baldock, 97,149,152. 
 
lxviii 
 
 TABLE OF GASES CITED. 
 
 Woodham v. Baldock, 39, 161. 
 Woodley v. Abby, 504. 
 Woodman v. Bodfish, 459. 
 Woodrow v. Davis, 177, 328. 
 Woodruff v. Bitter, 319. 
 Woods v. Rugbey, 134, 167. 
 Woods v. Timmerman, 395. 
 Woodson v. Pool, 274, 310. 
 Woodville v. Reed, 225. 
 Woodward v. Gates, 149, 157, 13. 
 Woodward v. Marshall, 344, 384, 
 
 416. 
 Woodward v. Solomon, 464. 
 Woodward v. Wyman, 219, 470. 
 Woodworth v. Paige, 481, 568. 
 Woodworth v. Sweet, 250, 307, 309. 
 Woodworth v.Woodworth, 120, 575. 
 'Woolbridge v. Gage, 507. 
 Wooley v. Edson, 172, 462. 
 Wooley v. Frey, 43. 
 Woolsey v. Urner, 434. 
 Woolston's Appeal, 276, 292. 
 Wooster v. Stanfield, 343, 360, 374, 
 
 410, 415. 
 Wooten v. Clarke, 122, 220, 474, 545. 
 Wooton v. Osborn, 288. 
 Wordall v. Smith, 95, 111, 137. 
 Work v. Ellis, 359, 415, 594. 
 Worland v. Kimberlin, 189. 
 Worman v. Kramer, 138, 171. 
 Worman v. Wolfersberger, 184. 
 Worrall v. Jacob, 305. 
 Worsley v. De Mattos, 26, 39, 83, 
 
 88, 95, 199, 231. 
 Worth v. Northam, 459. 
 Worth v. York, 233, 242, 530. 
 Worthington v. Bullitt, 222, 282, 
 
 285, 288, 289, 294, 295, 617. 
 Worthington v. Shipley, 269, 275, 
 
 281, 292. 
 Worthy v. Caddell, 209. 
 Wortman v. Price, 250. 
 Wright v. Brandis, 201, 504. 
 Wright v. Campbell, 281, 541. 
 Wright v. Cornelius, 586. 
 Wright v. Crockett, 463, 477. 
 Wright v. Douglass, 241. 
 Wright v. Grover, 144, 177, 600. 
 Wright v. Hancock, 44, 46, 53, 609, 
 
 615. 
 Wright v. Henderson, 316. 
 Wright v. Howell, 475. 
 Wright v. Linn, 378, 579, 582, 591. 
 Wright v. McCormick, 141. 
 
 Wright v. McDonald, 552. 
 Wright v. Petrie,240, 255, 533, 539. 
 Wright v. Russell, 541. 
 Wright' v. Stannard, 44, 209, 294, 
 
 295 310. 
 Wright v. Wheeler, 559. 
 Wright v. Wright, 446. 448. 
 Wrightman v. Hart, 50. 
 Wyattv. Stewart, 121. 
 Wykoffv. Care, 581. 
 Wyles v. Beals, 394, 434. 
 Wylie v. Basil, 307. 
 Wyman v. Brown, 446. 
 Wyman v. Pox, 481, 534. 
 Wyman v. Richardson, 474. 
 Wynkoop v. Shardlow, 364. 
 Wynne v. Cornelison, 564. 
 Wynne v. Glidwell, 27, 394, 397, 587. 
 
 Yardley v. Arnold, 524, 595. 
 
 Yardley v. Raub, 312. 
 
 Yates v. Joyce, 529. 
 
 Yates v. Lyon, 352. 
 
 Yates v. Olmstead, 126. 
 
 Ybarra v. Lozenzanza, 444. 
 
 Yearsley's Estate, 390. 
 
 Yoder v. Standiford, 35, 37, 42, 44, 
 
 49, 50, 59, 260, 261, 263, 264, 
 
 265, 567, 016. 
 York County Bank v. Carter, 186, 
 
 190, 207', 581. 
 Youmans v. Boomhower, 620. 
 Young v. Booe, 23, 399, 402, 412. 
 Young v. Dumas, 185, 189, 193, 
 
 218. 
 Young v. Frier, 535. 
 Young v. Gillespie, 346, 570. 
 Young v. Heermans, 214, 508. 
 Young v. Lathrop, 496. 
 Young v. McClure. 134. 136. 
 Young v. Pate, 112, 177, 328, 487, 
 
 575 
 Young v. Stallings, 58, 184, 189, 
 
 193 194 218. 
 Young v. White, 285, 290, 292. 
 Young v. Wilson, 231. 
 
 Zacharie v. Kirk, 112. 
 
 Zerbe v. Miller, 200, 232, 477, 579, 
 
 583, 595. 
 Zimmerman v. Lamb, 462, 588. 
 Zimmerman v. Schoenfeldt, 446. 
 Zipcey v. Thompson, 513. 
 Zug v. Laughlin, 519. 
 
FRAUDULENT CONVEYANCES. 
 
FRAUDULENT CONVEYANCES. 
 
 CHAPTER I. 
 
 HISTORY OF THE LAW OF FRAUDULENT CONVEYANCES. 
 
 Origin of Commerce. — In the earliest stages of soci- 
 ety property has no value, and the transfer of it from one 
 to another does not give rise to the idea of an obligation. 
 Whenever anything is transferred the parties esteem it as 
 a present, and there is no expectation of any return. 
 There are neither loans nor debts, and commerce is un- 
 known. Qaudent niuneribus sed nee data imputant nee ac- 
 ceptis obligantur} Foenus agitare et in usuras extendere 
 ignotum? Even after property has acquired a value, there 
 is at first no commerce. A rude people make no execu- 
 tory contracts, but limit their dealings to barter alone. At 
 that period there is, moreover, no facility of exchange. 
 Transactions involving an alienation of property are rare, 
 and conveyances are exceedingly ceremonious. Custom 
 requires the presence of numerous witnesses, prescribes 
 the use of a certain form of words, and demands the per- 
 formance of certain symbolical acts. No part of this 
 ceremony can be omitted, not an act, nor a gesture, nor a 
 
 1 Tacit. Germ. c. 21. 2 Tacit. Germ. c. 26. 
 
2 HISTORY OF THE LAW OF FRAUDULENT CONVEYANCES. 
 
 syllable, for if there is a single omission the conveyance 
 is void. The early Eoman law presents an apt and ready 
 illustration of the customs of primitive times. Under 
 that law it was necessary that the parties, a libripens and 
 five witnesses should be present at every transfer of prop- 
 erty. 1 The libripens attended with his scales to weigh 
 the uncoined copper which constituted the money of that 
 age. The vendor brought the property which was to be 
 transferred, and the vendee brought the ingots of copper. 
 The property was delivered with certain formalities by 
 the vendor to the vendee in the presence of the witnesses, 
 and the libripens received the ingots of copper from the 
 vendee, and, having weighed them, delivered them to the 
 vendor. This transaction in the earliest stages of the Eo- 
 man law was called a nexwm, and the parties were said to 
 be nexi? From this description of the ceremony it is mani- 
 fest that the earliest use of the nexum was to give proper 
 publicity to the alienation of property. It is also mani- 
 fest that, at that time, trade was confined to barter merely. 
 Contracts and commerce were unknown. 
 
 Transition feom Barter to Commerce. — The next step 
 in the progress towards commerce is the rise of contracts. 
 These came naturally from conveyances. The nexum in 
 its earliest use denoted an interchange of commodities, and 
 comprehended both the transfer and the payment, for both 
 acts were contemporaneous. It embraced two ideas which, 
 at that period, were never separated in practice. In the 
 course of time, however, cases arose where the property 
 was delivered without the immediate payment of the 
 money. In such cases the nexum was finished so far as 
 
 1 Maine's Ancient Law, 198. 2 Maine's Ancient Law, 309. 
 
HISTORY OF THE LAW OF FRAUDULENT CONVEYANCES. 3 
 
 the vendor was concerned, but continued as to the vendee. 
 The latter was still deemed to be nexus until the stipulated 
 price was paid.. Thus the term nexvm was used to denote 
 the delivery of the property and the obligation of the ven- 
 dee for the unpaid purchase money. The next step in the 
 line of progress was the introduction of a proceeding wholly 
 formal, in which no property was delivered and no pay- 
 ment was made, and thus executory contracts arose. 1 The 
 term nexum, which originally denoted the act by which 
 the title of property was transferred from one to another, 
 came insensibly to mean a contract, and in the course of 
 time the association between the term and the idea of a 
 contract became so intimate that another term, mamripium, 
 or mancipatio, was introduced to designate the delivery of 
 property. 1 This illustration is drawn from the Roman 
 law, but appears to present the true and natural theory of 
 the transition from barter to commerce. In the order 
 of time conveyances came first, then contracts, credit and 
 commerce. 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 
 
 'Maine's Ancient Law, 310. 
 
4 HISTORY OF THE LAW OF FRAUDULENT CONVEYANCES. 
 
 the ancient law in Greece, Italy, Asia, 1 and Germany. 2 
 The custom was, in fact, so universal that it may be re- 
 garded as a part of the jus gentium barbararum. 
 
 Roman Law. — The Eoman law was especially severe. 
 If a debtor was unable to pay his debt, he could sell him- 
 self to his creditor, with the condition that, if the debt 
 was not paid before the expiration of a certain period, the 
 creditor should have the right to take possession of his 
 purchase. If the debt was not paid within the time fixed 
 by the" agreement, the creditor could go before the prastor 
 and demand the possession, which would then be awarded 
 to him, and the debtor would thus pass into his power. 
 If the debtor refused to part with his liberty voluntarily, 
 the creditor could pursue another course. He first sum- 
 moned his debtor before the praetor, and had the justice of 
 his claim r allowed. After the entry of the judgment a 
 stay of thirty days was given, in order to permit the 
 debtor to^see whether he could raise the money to pay the 
 debt orfnot. If the debt was not paid within that time, 
 the creditor, after its expiration, arrested him and carried 
 him before the praetor ; and if no one then would release 
 him, he was delivered to the creditor, who took him away 
 and kept him in private custody. There he was bound 
 with a chain of not less than fifteen pounds' weight, and 
 fed with a pound of corn each day. If he did not come 
 to terms with his creditor, he was kept in prison for sixty 
 days, and during this period he was brought into the 
 comitium before the praetor on three successive market 
 days, and the amount of his debt was proclaimed. But 
 on the third market day he was put to death or sold into 
 
 1 Grote's Hist, of Greece, vol. 3, pp. 95, 110, 159. 
 
 2 Hallam's Hist, of Middle Ages, vol. 1, pp. 196, 317 ; Hume's Hist, 
 of Eng., vol. 1, <p. 176. 
 
HISTORY OF THE LAW OF FRAUDULENT CONVEYANCES. 5 
 
 foreign slavery beyond the Tiber. If, however, there 
 were several creditors, they might, if they wished, actu- 
 ally cut his body into pieces, and no creditor incurred any 
 penalty by taking more or less than in proportion to his 
 debt. 1 
 
 Modern Law. — Villenage was the resource of insol- 
 vent debtors in the Middle Ages/ but after the institutions 
 of the country became settled this practice fell into disuse. 
 It was inconsistent with the duties of warlike service to 
 which every man was bound under the feudal system. 3 
 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. 4 It was first given by statute against bailiffs, 5 
 and was subsequently extended by other acts. 6 Although 
 this power was not as rigorous as the Eoman law, yet it 
 was always severe, and even harsh. 7 
 
 Effect of Rigorous Laws. — The effect of these rigor- 
 ous 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 fraud- 
 ulent conveyances is not to be found in the Twelve Tables. 
 
 1 A. Gellius, XX, 1, §§ 45 et seq. ; Gibson's Hist, of Borne, vol. 4, p. 
 372; Niebuhr's Hist, of Borne, vol. 2, p. 599 ; Arnold's Hist, of Bome, 
 p. 52. 
 
 8 Hallam's Hist, of Middle Ages, vol. 1, pp. 196, 317 ; Hume's Hist, of 
 Eng., vol. l,p. 176. 
 
 8 2 Bell Com. 538. 
 
 4 1 Beeves' Hist, by Pin. 511 ; 2 ib. 71 ; 2 Bell Com. 538 ; 2 Kent Com. 
 398; Herbert's Case, 3 Co. 11. 
 
 6 1 Beeves' Hist, by Fin. 511. 
 
 6 2 Beeves' Hist, by Fin. 71 ; 2 Kent Com. 398. 
 
 1 2 May's Const. Hist. 268 ; 1 Benton's Thirty Years in Sen. 291. 
 
6 HISTORY OF THE LAW OF FRAUDULENT CONVEYANCES. 
 
 It had its origin in a later age, when the right of the cred- 
 itor 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 imprisonment for debt and the absence of a general bank- 
 rupt law. It is also worthy of notice that fraud abounded 
 even in England as long as debtors could fly to privileged 
 places, and be there exempt from arrest and the service of 
 civil process. 
 
 Roman Law of Fraudulent Conveyances. — The Ro- 
 man law is the oldest law upon the subject of fraudulent 
 conveyances, and embodies all the leading principles. Ait 
 prcetor: Quce fraudationis causa gesta erunt, cum eo qui 
 fraudem non ignoraverit, de his curatori bonorum vel ei cui 
 de ea re actionem dare opportebit, infra annum quo experi- 
 undi potestas fuerit, actionem dabo ; idque etiam adversus 
 ipsum qui fraudem fecit, servabo. Hose verba generalia sunt, 
 et continent in se omnem omnino in fraudem factam vel alien- 
 ationem vel quemcunque contractum : nam late ista verba 
 patent. 1 Hoc edictum eum coercet qui sciens eum in fraudem 
 creditorum hocfacere, suscepit quod in fraudem creditorum 
 fiebat. Quare si quid in fraudem creditorum factum sit, si 
 tamen is qui cepit ignoravit, cessare videntur verba edicti? 
 Simili modo dicimus, et si cui dematum est non esse qucerendum 
 an sciente eo cui donatum gestum sit, sed hoc tantum anfraud- 
 entur creditores. 8 Sciendum, Julianum scribere, eoque jure 
 nos uti ut qui debitam pecuniam recepit antequam bona debi- 
 toris possideantur , quamvis sciens prudensque solvendo non esse 
 
 1 Dig. Lib. 42, tit. 9, § 1. 2 Dig. Lib. 42, tit. 9, § 8. 
 
 " Dig. Lib. 42, tit. 9, § 11. 
 
HISTORY OF THE LAW OF FRAUDULENT CONVEYANCES. 7 
 
 recipiat, non timere hoc edictum ; sibi enim vigilavit. 1 Quce- 
 situm est an secundus emptor conveniri potest ? Sed verior est 
 Sabini sententia bona fide ernptorem non teneri ; quia dolus ei 
 duntaxat nocere debeat qui eum admisit? These principles 
 are sound law even at the present time. 
 
 Derivation of the Anglican Law. — Anglican consti- 
 tutional 3 and criminal law 4 is derived from the Anglo- 
 Saxons, but Anglican civil law is founded upon the Roman 
 law. 5 By this it must not be understood that Anglican 
 civil law is merely a servile copy or imitation of the 
 Eoman law, but that it has borrowed the principles of the 
 latter by the nobler process of assimilation and incorpora- 
 tion. How far the law of fraudulent conveyances is founded 
 upon the Roman law it is impossible 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 exigen- 
 cies 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 
 
 1 Dig. Lib. 42, tit. 9, § 7. s Dig. Lib. 42, tit. 9, § 9. 
 
 3 Stubbs' Select Charters, Part I. 
 
 4 1 Reeves' Hist, by Fin. 24, note C ; 39, note C. 
 6 1 Reeves' Hist. Introduction by Fin. 
 
8 HISTORY OF THE LAW OF FRAUDULENT CONVEYANCES. 
 
 the law of fraudulent conveyances is a part of the common 
 law. A fraudulent conveyance was void as against credi- 
 tors, and the property might be taken on execution. 1 
 Whether a gift was fraudulent was deemed a question of 
 fact. 2 After the death of the debtor, the fraudulent 
 grantee could be held as executor de son tort, 3 or relief 
 might be had in equity. 4 These principles are sufficient 
 to show that the foundation of the existing law upon the 
 subject had already been laid, and, perhaps, in the course 
 of time the necessities of commercial enterprise and the 
 quickened sense of justice would have reared a sym- 
 metrical system without legislative aid. 
 
 Statutes. — 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. 5 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 collu- 
 sion, thereof to have the profits at their will, and after- 
 wards fled to privileged places, and there lived a great 
 time, of high countenance, till the creditors were com- 
 pelled to take a small part of their debts and release the 
 balance. 6 The next statute 7 upon this subject recites the 
 
 1 As. fol. 101, pi. 72 ; Eol. Abr. Covin. 549 ; Brooke Abr. 139, Collusion, 
 pi. 9 ; Eitz. Abr. Execution, 108. 
 
 2 13 H. IV, 4 pi. 9. 8 13 H. IV, 4 pi. 9 ; Rol. Abr. Covin. 549. 
 
 4 16 Edw. IV, 9. 6 2 Beeves' Hist, by Fin. 183, 457. 
 
 "50E. Ill, E. 6. '2E. 2. c. 3. 
 
HISTORY OF THE LAW OP FRAUDULENT CONVEYANCES. '9 
 
 same practice of a conveyance to the use of a debtor and a 
 withdrawal 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 succes- 
 sive 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 seeking of the 
 protection of a sanctuary or other privileged place. The 
 enactment itself is a singular conclusion 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. 1 
 
 Importance of the Statutes. — 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 nornen speciosum, is, in truth, as 
 to all the creditors, a fraud, for they are thereby defeated 
 and defrauded of their true and due debts." 2 It has been 
 said that the act of 50 Edw. Ill, c. 6, is not declaratory of 
 the common law, upon the ground that if the same princi- 
 ples had prevailed at the common law, the statute was in 
 
 1 3 H. VII, c. 4. Finlason suggests that this is merely a declaratory 
 act. 3 Reeves' Hist, by Fin. 143. 
 
 2 Twyne's Case, 3 Co. 80 ; Moore, 638. 
 
10 HISTORY OF THE LAW OF FRAUDULENT CONVEYANCES. 
 
 vain, and would never have been made. 1 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 as 
 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, and legislative interference would 
 not have been necessary. 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 13 Eliz. c. 5 2 
 is the 1-ast 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, and Iowa. The various statutes in 
 the other States are modeled after it, and in the main are 
 simply a re-enactment of it. In this respect the develop- 
 ment of the Anglican law presents an analogy to the 
 Roman law. Roman law was founded upon an edict of 
 the praetor ; Anglican law is founded upon a legislative 
 enactment. This statute, however, is merely declaratory 
 of the common law. 3 By this expression the courts prob- 
 ably 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. 4 As far as the actual prac- 
 
 1 Lyte v. Perry, Dyer, 49 C. 2 Made perpetual by 29 Eliz. c. 5. 
 
 » Co. Litt. 76, a. 290 c. ; Twyne's Case, 3 Co. 80 ; Moore, 638 ; Hamil- 
 ton v. Kussell, 1 Cranch, 309 ; Peck v. Land, 2 Geo. 1 ; Clements v. 
 Moore, Wall. 299 ; Hudnal v. Wilder, 4 McCord, 294 ; 1 McCord, 227. 
 
 4 27 H. VIII, fol. 10. 
 
HISTORY OF THE LAW OF FRAUDULENT CONVEYANCES. 11 
 
 tice was concerned, it probably would be more strictly 
 accurate to say that tbe principles of the common law, as 
 now understood, are go strong against fraud in every shape 
 that they will attain every end proposed by the statute. 1 
 
 Common Law still in Force. — This doctrine is of prac- 
 tical importance, for unless there is a conflict between the 
 provisions of a statute and those of the common law relat- 
 ing to the same subjed>matter, or an evident intent of the 
 legislature to repeal the common law, the latter is consid- 
 ered 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. 2 The act itself is not affected by this doctrine, 3 and 
 will in general be received as a true declaration of what 
 the law was ; 4 but wherever the statute is ineffective, either 
 through a change of custom, or the introduction of a new 
 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. 
 
 Liberal Construction. — The statute is established 
 for the suppression of fraud, the advancement of justice, 
 and the promotion of the public good. Consequently, it 
 
 1 Cadogan v. Kennett, 2 Cowp. 432. 
 
 2 Blackman v. Wheaton, 13 Minn. 326 ; Fox v. Hills, 1 Conn. 295 ; 
 State v. Fife, 2 Bailey, 337 ; Lillard v. M'Gee, 4 Bibb, 165 ; Westmore- 
 land v. Powells, 59 Geo. 256. 
 
 3 Davis v. Turner, 4 Gratt. 422. 4 Clark v. Douglass, 62 Pe.nn. 408. 
 
12 HISTORY OF THE LAW OF FRAUDULENT CONVEYANCES. 
 
 should be liberally and beneficially construed to suppress 
 the fraud, abridge the mischief, and enlarge the remedy. 1 
 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. 2 These principles are adopted in all the 
 cases, and run through every branch of the law of fraud- 
 ulent conveyances. The statute receives a fair and liberal 
 construction to carry out the plain intent of the legislature, 
 yet interpretation 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 pro- 
 gressive civilization. 
 
 1 Twyne's Case, 3 Co. 80 ; Moore, 638 ; Gooch's Case, 5 Co. 60 ; Cado- 
 gan v. Kennett, 2 Cowp. 432 ; McCulloch v. Hutchinson, 7 Watts, 434. 
 
 2 Cadogan v. Kennett, 2 Cowp. 432. 
 
CHAPTER II. 
 
 what constitutes a fraudulent conveyance. 
 
 Owner's Absolute Dominion over his Property. — 
 Every one has the absolute dominion over his own prop- 
 erty, and by virtue of that dominion, when he is under no 
 obligation in respect to it, he may, according to his own 
 good will and pleasure, and within the limits prescribed by 
 law, make any disposition of it which does not interfere 
 with the existing rights of others. 1 He may sell it, or 
 give it to others. If he sells it, he may exercise the most 
 liberal and extended discretion as to the time and manner 
 of disposing of it, and investing the proceeds. He may 
 contract debts to be satisfied out of it, confess judgments 
 and create liens upon it. 3 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. 3 
 
 Owner's Absolute Dominion not Divested by In- 
 debtedness. — He is not deprived of his power and dominion 
 over his property by either indebtedness or even insolv- 
 ency, for his obligation is purely personal, and does not 
 
 1 Sexton v. Wheaton, 8 Wheat, 229 ; Thomson v. Dougherty, 12 S. 
 & E. 448. 
 
 2 Candee v. Lord, 2 N". Y. 269. 
 
 3 Pope v. Wilson, 7 Ala. 690. 
 
14 WHAT CONSTITUTES A FRAUDULENT CONVEYANCE. 
 
 affect his property. 1 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 apply the proceeds, in his discretion, to his debts, his 
 purchases, or his maintenance. He has the right to man- 
 age, control, mortgage, pledge, and deal with it, and enter 
 into business contracts in relation to it, in such way and 
 manner as he deems will best conduce to its preservation 
 and increase. 3 He may enter into a partnership, transfer- 
 ring a part or even the whole of his property to the firm. 3 
 If he is prosecuting an action of ejectment, he may com- 
 promise with his adversary in any manner he thinks 
 proper.* Simple insolvency does not work a dissolution of 
 a partnership, or divest the partners of their dominion 
 over the partnership property. 5 General creditors have 
 no authority to control the exercise of this dominion over 
 the property, and can only resort to the personal remedies 
 given by law for the coercion of payment. 6 
 
 Debtor held to the Exercise of Good Faith. — A 
 debtor, however, is not merely the owner. He sustains 
 two distinct relations to his property, that of owner and 
 quasi trustee for his creditors. 7 If they take no specific 
 security from him, they trust him upon the general credit 
 of his property, and a confidence that he will not diminish 
 
 1 Frank v. Peters, 9 Ind. 344 ; Waddams v. Humphreys, 22 111. 661 ; 
 Barrow v. Bailey, 5 Fla. 9. 
 
 2 Davis v. Turner, 4 Gratt. 422 ; Paper Works v. Willet, 1 Robt. 131 ; 
 Stanley v. Eobbins, 36 Vt. 422 ; Prank v. Levie, 5 Robt. 599 ; Carter v. 
 Neal, 24 Geo. 346. 
 
 3 Browne v. Ripka, 12 Pitts. L.J. 170. 
 
 4 Richardson v. Stewart, 2 S. & R. 84. 
 
 » Siegel v. Chidsey, 28 Penn. 279. 6 Davis v. Turner, 4 Gratt. 422. 
 1 Candee v. Lord, 2 N. Y. 269. 
 
WHAT CONSTITUTES A FRAUDULENT CONVEYANCE. 15 
 
 it to their prejudice. They, therefore, have an equitable 
 claim upon and interest in it. 1 The law lays upon him an 
 obligation to pay his debts, and holds him in behalf of his 
 creditors to the exercise of good faith in all transactions 
 relating to the fund upon which they must depend for pay- 
 ment. He must, therefore, exercise his dominion over his 
 property fairly and honestly with reference to the rights 
 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 lawful dues and demands. 
 Wherever he exceeds these limits of his legitimate autho- 
 rity and power over his property and funds, the exercise 
 of the power becomes unconscientious and inequitable, 
 and the law then controls and regulates it in such a man- 
 ner as to compel him to do justice to his creditors. Such 
 an unconscientious exercise of power by a debtor is con- 
 sidered a fraud upon his creditors. 3 He can, therefore, 
 neither create a debt, nor do any of the things hereinbe- 
 fore mentioned mala fide to their prejudice, and if he does, 
 the act is liable to be impeached. 
 
 Owner's Absolute Dominion involves the Right 
 of Another to Purchase. — His right to sell, or other- 
 wise dispose of his property, involves the corresponding 
 right of another to purchase or receive it. 3 The only 
 limitation upon the exercise of these rights is that the 
 transfer shall be in good faith. The right of creditors to' 
 impeach an act of the debtor does not arise until the latter 
 violates the confidence reposed in him at the time of the 
 creation of the debt, but any violation of this is a fraud 
 
 1 Eppes v. Randolph, 2 Call. 103 ; Seymour v. Wilson, 19 N. Y. 417. 
 
 2 Weed v. Pierce, 9 Cow. 722 ; Pope v. Wilson, 7 Ala. 690. 
 8 Barrow v. Bailey. 5 Fla. 9. 
 
 2 
 
16 WHAT CONSTITUTES A FRAUDULENT CONVEYANCE. 
 
 upon their rights. If another receives the property with 
 notice of the fraud, he is aiding the debtor to cheat his 
 creditors, and this the law never tolerates. 1 A person 
 desiring to purchase, however, has a right to trust to the 
 debtor's dominion over his property, 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, consequently, has a paramount right to 
 retain the property. 2 
 
 The Elements of a Fraudulent Conveyance. — The 
 statute is founded upon these principles. It invalidates 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 consideration 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. 
 
 1 Cadogan v. Kennett, 2 Cowp. 432. 
 
 5 Eppes v. Randolph, 2 Call. 103 ; Seymour v. Wilson, 19 N. Y. 417. 
 
CHAPTER III. 
 
 FRAUDULENT INTENT. 
 
 The Character of Intent. — 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 defraud credi- 
 tors and others of their just and lawful actions, suits, debts, 
 accounts, damages, penalties, forfeitures, 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." 1 This reference 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 
 potency. 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. 2 
 
 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, 
 
 1 Walker v. Burrows, 1 Atk. 93. 2 Anderson v. Hooks, 9 Ala. 704. 
 
18 FRAUDULENT INTENT. 
 
 or reliefs. An intent to deceive and defraud the public, 
 without any intent to delay, hinder or defraud the creditors 
 of the grantor, is not such a fraud. 1 Nor is a fraud which 
 is directed against the debtor and not against his creditors 
 within the act. 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 credi- 
 tors 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 either in fact or in law 
 the perpetrator of the fraud. In the latter case the credi- 
 tors who seek to avoid a sale or transfer do not repre- 
 sent the debtor, but exercise rights paramount to his. In 
 the former case the remedy belongs to the debtor alone, 
 and they can not interfere when they are not in the con- 
 templation of the author of the wrong, and are only affected 
 consequentially. 3 The fraud, moreover, must be a fraud 
 against general creditors, and not a mere intent to defeat 
 a prior unrecorded deed. 3 It must also lie in the transfer, 
 and not in the creation of the debt of the creditor who 
 impeaches it. 4 The fraudulent intent must also be an 
 intent to commit a fraud on creditors by making the trans- 
 
 ' Griffin v. Stoddard, 12 Ala. 783. 
 
 2 Pettus v. Smith, 4 Rich. Eq. 197 ; Garretson v. Kane, 27 N. J. 208 ; 
 Eaton v. Perry, 29 Mo. 96 ; Hovey v. Holcomb, 11 111. 660 ; Prosser v. 
 Edmonds, 1 Y. & C. 481 ; Graham v. Railroad Co. 102 U. S. 148 ; McAlpine 
 v. Sweetzer, 76 Ind. 78 ; vide Van Deusen v. Frink, 36 Mass. 449. 
 
 : Burgin v. Burgin, 1 Ired. 453. 
 
 4 Horwitz v. Ellinger, 31 Md. 492 ; Mattison v. Demarest, 4 Robt. 161. 
 
FRAUDULENT INTENT. 19 
 
 fer, and not by some entirely independent act which might 
 and probably would have been done had no transfer been 
 made. 1 
 
 What constitutes Fraud. — Fraud consists of unlaw- 
 ful conduct that operates prejudicially upon the rights of 
 others. 2 To defraud is to withhold from another that which 
 is justly due to him, or to deprive him of a right by decep- 
 tion or artifice. 3 A fraud upon creditors consists in the 
 intention to prevent them from recovering their just debts, 
 by an act which withdraws the property of the debtor 
 from their reach. 4 There can be no fraud without a dis-\ 
 honest intent ; but fraud does not consist in mere intention, > 
 but in intention carried out by hurtful acts. It consists 
 of conduct that operates prejudicially on the rights of 
 others, and is so intended. Mere intention, if not carried 
 out, can not work injury to the rights of others. 5 
 
 Delay and Hinder ance. — It is not necessary, however, 
 that there should be an intent to defraud in order to ren- 
 der a transfer void. The statute makes void all convey- 
 ances made with " intent to delay, hinder or defraud 
 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. 6 
 
 1 Wilson v. Forsyth, 24 Barb. 105. 2 Bunn v. Ahl, 29 Penn. 387. 
 
 3 Burdick v. Post, 12 Barb. 168 ; s. c. 6 N. Y. 522. 
 
 4 McKibbin v. Martin, 64 Penn. 352 ; Ala Ins. Co. v. Pettway, 24 
 Ala. 544. 
 
 6 Bunn v. Ahl, 29 Penn. 387 ; Williams v. Davis, 69 Penn. 21 ; Rice v. 
 Perry, 61 Me. 145, 
 
 « Pilling v. 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 ; Burgert v. Borchert, 59 Mo. 80 ; Crow v. 
 Beardsley, 68 Mo. 435; Planters' Bank v. Willeo Mills, 60 Geo. 168; 
 Dunaway v. Robertson, 95 111. 419 ; Cordes v. Straszer, 8 Mo. Ap. 61. 
 
20 FRAUDULENT INTENT. 
 
 The term fraud imports something of a more vicious char- 
 acter 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 the old English 
 statutes, where they were introduced for caution's sake 
 more than with any precise idea as to what they were 
 intended to effect. 1 
 
 What constitutes a Hindeeance or Delay. — The 
 term delay refers not merely to time, but to the interposi- 
 tion of obstacles in the way of creditors, with the fraudu- 
 lent intent to hinder and delay. 2 The statute is to be 
 construed according to its reasonable intent and object, 
 and by a reasonable construction only such hinderance and 
 delay as will operate as a fraud come within its operation. 3 
 A delay for all time renders a transfer void, and the prin- 
 ciple is the same when it is sought for a limited time. The 
 difference is in degree only. The hinderance or delay of 
 creditors is reprobated by the statute without regard to the 
 duration of the hinderance or delay. 4 The time for the per- 
 formance of a contract is both in morals and in law an essen- 
 tial 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 
 inducement to a conveyance is to hinder and delay credi- 
 
 1 Bead v. Worthington, 9 Bosw. 617 ; Burdick v. Post, 12 Barb. 168 ; 
 s. C. 6 N. Y. 522. 
 
 8 Linn v. Wright, 18 Tex. 317 ; Hefner v. Metcalf, 1 Head, 577. 
 
 3 Hoffman v. Mackall, 5 Ohio St. 124. 
 
 4 Quarles v. Kerr, 14 Gratt. 48 ; Sutton v. Hanford, 11 Mich. 513. 
 
FRAUDULENT INTENT. 21 
 
 tors, since the right of creditors to receive their demands 
 when due is as absolute as their right to receive them at 
 all. 1 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, or a part of them. 3 
 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 prevent such appropriation in the due 
 course of legal proceedings is a delay and hinderance 
 within the meaning of the statute. The obstacle, however, 
 must be interposed between the creditors and the property 
 of the debtor. If, after a transfer, the property does not, 
 either in fact or 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 hinder- 
 ance and delay within the statute. It is for this reason that 
 a preference, 3 or an assignment for the benefit of creditors, 4 
 may be made for the express purpose of defeating an 
 execution. The creditor may be baffled, or even eventu- 
 ally lose his debt, but there is no obstacle interposed 
 between him and any property which belongs to the debtor. 
 
 1 Nicholson v. Leavitt, 6 N. Y. 510 ; s. c. 10 N. Y. 591 ; s. 0. 4 Sandf. 
 252. 
 
 2 Wheelden v. Wilson, 44 Me. 1 ; Borland v. Mayo, 8 Ala. 104 ; Kim- 
 ball v. Thompson, 58 Mass. 441 ; Stovall v. Farmers' Bank, 16 Miss. 305 ; 
 McLean v. Lafayette Bank, 3 McLean, 587. 
 
 3 Holbird v. Anderson, 5 Term e!" 235 ; Wood v. Dixie, 53 E. C. L. 892 ; 
 s. c. 7 Q. B. 892 ; Darvill v. Terry, 6H.&S. 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. 
 
 4 Riches v. Evans, 9 C. & P. 640 ; Johnson v. Osenton, L. K. 4 Ex. 107 ; 
 Wilt v. Franklin, 1 Binn. 502; Jackson v. Cornell, 1 1 Sandf. Ch. 348; 
 Horwitz v. Ellinger, 31 Md. 492. 
 
22 FRAUDULENT INTENT. 
 
 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 de- 
 fraud " The presence of this intent is essential to render a 
 conveyance void. 1 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. 3 Every contrivance, however, to the intent to 
 delay, hinder or defraud creditors is malicious. If the 
 hinderance of creditors forms any part of the actual intent 
 of the act done, so far the act is as against them a malicious 
 contrivance. 3 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. 4 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 cannot infer it. 5 When 
 fraud is thus a question of fact, it is called actual fraud, or 
 fraud in fact. 
 
 Fraud in Law. — 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 
 
 1 Sibly v. Hood, 3 Mo. 290. 
 
 2 Ewing v. Runkle, 20 111. 448 ; Meux.v. Howell, 4 East. 1. 
 
 3 Hafner v. Irwin, 1 Ired. 490. 
 
 4 Allen v. Wheeler, 70 Mass. 123 ; Ewing v. Gray, 12 Ind.64 ; Maples 
 v. Burnside, 22 Ind. 139 ; Banfield v. Whipple, 96 Mass. 13 ; Green v. 
 Tanner, 49 Mass. 411 ; Bagg v. Jerome, 7 Mich. 145 ; Jackson v. Mather, 7 
 Cow. 301 ; Nicol v. Crittenden, 55 Geo. 497 ; Williams v. Evans, 6 Neb. 216. 
 
 5 Tyrer v. Littleton, 2 Brownl. 187 ; Crisp v. Pratt, Cro. Car. 549 ; 
 Oxford's Case, 10 Co. 53 b. ; Seward v. Jackson, 8 Cow. 406 ; s. o. 5 Cow. 
 67; Ridler v. Punter, Cro. Eliz. 291; Marden v. Babcock, 43 Mass. 99; 
 Ridgway v. Ogden, 4 Wash. C. C. 139 ; Charlton v. Gardner, 11 Leigh, 281 ; 
 Ehrisman v. Roberts, 68 Penn. 308 ; Monteith v. Bax, 4 Neb. 166 ; Kelly 
 v. Lenihan, 56 Ind. 448 ; Tognini v. Kyle, 15 ISTev. 464. 
 
FRAUDULENT INTENT. 23 
 
 necessary consequence of his act, and if an act necessarily 
 delays, hinders or defrauds creditors, then the law pre- 
 sumes that it is done with a fraudulent intent. 1 If the law 
 adjudges the effect to be to delay, hinder, or defraud credi- 
 tors, then the transfer is to be regarded as fraudulent, 
 though this may not have been the intention of the parties. 2 
 If, for instance, an insolvent debtor gives away a part 
 of his property, the inevitable effect of the act, if it 
 were allowed to stand, would be to deprive his creditors of 
 the means of enforcing payment, and hence, in such a case, 
 the intent to defraud is a conclusion of law arising from his 
 conduct. 3 The legal effect of a written instrument is also 
 a question of law, and the intent of the parties in making 
 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 conclusion of 
 law > In some cases, moreover, the point may be raised 
 by the pleadings, for 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- 5 To justify the 
 inference of a fraudulent intent, however, when no fraud in 
 
 1 Babcock v. Eckler, 24 N. Y. 623 ; Potter v. McDowell, 31 Mo. 62 ; 
 O'Connor v. Bernard, 2 Jones, 654 ; Freeman v. Pope, L. B. 5 Cb.. 538 ; 
 s. c. L. B. 9Eq. 206; Norton v. Norton, 59 Mass. 524; Freeman v. Burn- 
 ham, 36 Conn. 469. 
 
 2 Bentz v. Eiley, 69 Penn. 71. 
 
 8 Babcock v. Eckler, 24 N. Y. 623 ; Potter v. McDowell, 31 Mo. 62. 
 
 4 Mitchell v. Beal, 8 Yerg. 134; Ashurst v. Martin, 9 Port, 566 ; Shel- 
 don v.Dodge, 4 Denio, 217 ; Griffin v. Cranston, 10 Bosw. 1 ; s. c. 1 Bosw. 
 281 ; Young v. Booe, 11 Ired. 347; Johnson v. Thweatt, 18 Ala. 741; 
 Bigelow v. Stringer, 40 Mo. 195 ; Gere v. Murray, 6 Minn. 305 ; Goodrich 
 v. Downs, 6 Hill. 438 ; Bartels v. Harris, 4 Me. 146 ; Harman v. Hoskins, 
 56 Miss. 142. 
 
 5 Gerrish v. Mace, 75 Mass. 250. 
 
24 FRAUDULENT INTENT. 
 
 fact is proved, there must be creditors who may be delayed, 
 hindered or defrauded, and the necessary consequences of 
 the act must be to produce such delay, hinderance or fraud. 1 
 In the construction of written instruments, also, the 
 existence of fraud is a question of fact whenever their 
 terms and stipulations are by possibility compatible with 
 good faitb, and have upon their face the essential elements 
 of a legal contract. 2 Whenever fraud is thus the inevitable 
 consequence of an act or instrument, it is called construc- 
 tive fraud, or fraud in law. 3 A constructive fraud is an act 
 which the law declares to be fraudulent without inquiring 
 into the motive, not because arbitrary rules have been laid 
 down upon this subject, but because certain acts carry in 
 themselves irresistible evidence of fraud. 4 
 
 No Difference between Fraud in Fact and Fraud 
 in Law. — 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 motives 
 for doing it, and it is thus upon this ground held to be 
 fraudulent. The result is the same when the illegal design 
 is established as a question of fact. The inquiry 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. 5 
 
 : Pope v. Wilson, 7 Ala. 690 ; State v. Estel, 6 Mo. Ap. 6. 
 
 2 Jones v. Huggeford, 44 Mass. 515; Hastings v. Baldwin, 17 Mass. 552; 
 Williams v. Anderson, 6 Neb. 392. 
 
 3 Lukins v. AM, 6 Wall. 78. 4 M'Broom v. Rives, 1 Stew. 72. 
 
 6 Oliver Lee & Co.'s Bank v. Talcott, 19 N. Y. 146 ; Gere v. Murray, 
 6 Minn. 305. 
 
FRAUDULENT INTENT. 25 
 
 Legal, 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 statute, 
 therefore, supposes that every one is capable of perceiving 
 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 perceptions may be so 
 perverted as to imagine an act to be fair and honest which 
 the law justly pronounces fraudulent and corrupt; but he 
 is not, therefore, to escape from the consequences of it. 
 The law must have a more certain standard for measuring 
 men's intents than each individual's varying and caprici- 
 ous notions of right and wrong. Whatever a man's opin- 
 ions 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 transgressed, they are void, without regard to the 
 opinion of the parties to it. 1 Fraud, therefore, does not 
 necessarily impute a corrupt or dishonorable motive. Par- 
 ties may do what they consider perfectly fair, for the pur- 
 pose of preventing a sacrifice merely, and with the inten- 
 tion of paying all the creditors ultimately, or may be ani : 
 mated merely by motives of affection or compassion f but 
 the law does not sanction any contrivance for either defeat- 
 ing or delaying creditors, 3 and invalidates it without regard 
 to the motives of the parties. 
 
 1 Potter v. McDowell, 31 Mo. 62 ; Grover v. Wakeman, 11 Wend. 187; 
 s. c. 4 Paige, 23. 
 
 2 Sturdivant v. Davis, 9 Ired. 365 ; Gardiner Bank v. Wheaton, 8 Me. 
 373 ; Briggs v. Mitchell, 60 Barb. 288 ; Trimble v. Turner, 21 Miss. 348 ; 
 Flood v. Prettyman, 24 111. 596. 
 
 3 Enders v. Swayne, 8 Dana, 103. 
 
26 FRAUDULENT INTENT. 
 
 Fraud as 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. 1 Fraud is 
 expressive of a legal idea, and admits of a legal definition. 
 It is, therefore, a matter of law. The expression that 
 when there is no dispute about the facts, fraud is a ques- 
 tion of law, 2 is not strictly accurate, for the intent is a 
 material fact, 3 and this is not in all cases an inference 
 of law. But when the intent is ascertained, the law pro- 
 nounces whether it is fraudulent and covinous. 4 When- 
 ever the transfer is tainted with actual and not construc- 
 tive fraud, it is the province of the tribunal for the ascer- 
 tainment of facts to find the actual intent. In that sense, 
 fraud is sometimes called a mixed question of law and 
 fact. 5 But it is never exclusively one of fact. It has 
 never been held that the jury may give to the intentions 
 such effect as to them may seem proper in each case. 
 That the law declares, and the security of creditors 
 depends upon the fixed principles of the law, and not on 
 the uncertain judgment of jurors as to what is fraud. 6 In 
 actions of 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 has a tend- 
 ency to prove it. 7 
 
 1 Worseley v. DeMattos, 1 Burr. 467; Sturtevant v. Ballard, 9 Johns. 
 337; Planters' Bank v. Borland, 5 Ala. 531. 
 
 8 Sturtevant v. Ballard, 9 Johns. 337 ; Divver v. McLaughlin, 2 Wend. 
 596. 
 
 3 Geigler v. Maddox, 28 Mo. 575. 
 
 4 Gere v. Murray, 6 Minn. 305 ; Gregory v. Perkins, 4 Dev. 50 ; Hardy 
 v.Simpson, 13 Ired. 132 ; Kean v. Newell, 2 Mo. 9. 
 
 6 Wilson v. 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 ; Means v. Feaster, 4 Rich. (N. S.) 249. 
 
 6 Gregory v. Perkins, 4 Dev. 50. 
 
 'Leadman v. Harris, 3 Dev. 144; Mott v. McNeal, 1 Aik. 162 ; Dur- 
 
FRAUDULENT INTENT. 27 
 
 Establishment of Intent. — The intent which under 
 the statute avoids the transfer as to creditors is an intent 
 to delay, hinder or defraud, and the existence of the par- 
 ticular intent must be established before the transfer can 
 be set aside. But it is not essential to establish any formal 
 or premeditated design to accomplish the illegal purpose. 
 It is enough to establish, either directly or indirectly, that 
 the participators in the transaction were actuated by an 
 intent which the law respecting fraudulent conveyances 
 inhibits. 1 This intent must in general be the intent of the 
 debtor, and not that of some third person. But if the 
 maker has no intent of his own in doing the act, being a 
 mere passive instrument in the hands of his agent, and 
 executing it merely to enable the agent to accomplish some 
 purpose of his own, that purpose becomes the intention of 
 the maker, although no inquiry is made or knowledge 
 obtained as to such design. The objects are his, the frauds 
 are his, and he is responsible therefor, however destitute 
 of any knowledge thereof. 2 
 
 Intent to prevent a Sacrifice. — The mere intent to 
 prevent a sacrifice of the property is not sufficient to render 
 a conveyance void. 3 But if the intent to prevent a sacrifice 
 of the property is accompanied with the requisite intent to 
 delay, hinder or defraud creditors, then the transaction is 
 fraudulent and void. 4 
 
 key 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 S. & R. 328 ; Cad- 
 bury v. Nolen,.5 Penn. 320 ; vide Kane v. Drake, 27 Ind. 29 ; Wynne v. 
 Gildewell, 17 Ind. 446. 
 
 1 Burgert v. Borchert, 59 Mo. 80 ; Hilliard v. Cagle, 46 Miss. 309. 
 
 5 Warner v. Warren, 46 N. Y. 228. 
 
 3 Cason v. Murray, 15 Mo. 378. 
 
 4 Brown v. Osgood, 25 Me. 505 ; Boarland v. Mayo, 8 Ala. 104. 
 
28 FRAUDULENT INTENT. 
 
 Accident. — Accident or mistake can not in general be 
 deemed sufficient to render any one guilty of fraud j 1 but 
 the parties to a written instrument are conclusively pre- 
 sumed to intend what is expressed upon its face, and if its 
 terms are fraudulent, it cannot be supported by proof that 
 they were inserted through inadvertence or mistake. 2 
 
 Not a Question of Remedy. — The validity of a transfer 
 depends upon the intent of the debtor in making it, and 
 not upon the question whether a remedy is or is not open 
 to creditors. If it is made with the intent to delay, hinder, 
 or defraud creditors, it can not be sustained by showing 
 that a remedy is open to them. 3 
 
 Fraud must be in the Beginning. — 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. 5 
 
 Void as to One, Void as to All. — If there is an intent 
 to delay, hinder, or defraud a particular creditor, it is not 
 necessary to establish an intent to delay, hinder, or defraud 
 all creditors. 6 It is not, on the other hand, necessary to 
 establish a specific design to delay, hinder or defraud the 
 
 1 Runyon v. Leary, 4 Dev. & Bat. 231 ; Fuller v. Acker, 1 Hill, 473. 
 
 '' August v. Seeskind, 6 Cold. 166 ; Hooper v. Tuckerman, 3 Sandf. 
 311. • 
 
 3 Grover v. Wakeman, 11 Wend. 187; s. c. 4 Paige, 23; Hyslop.v.. 
 Clarke, 14 Johns. 458 ; Halsey v. Whitney, 4 Mason, 206 ; Green v. Trie- 
 ber, 3 Md. 11 ; Gait v. Dibrell, 10 Yerg. 146. 
 
 4 Stone v. Grubbam, 2 Bulst. 217 ; s. c. 1 Rol. Rep. 3 ; Shep. Touch. 
 66 ; Weller v. Wayland, 17 Johns. 102 ; Claytor v. Anthony, 6 Rand. 
 285 ; Sommerville v. Horton, 4 Yerg. 541 ; Pope v. Wilson, 7 Ala. 690 ; 
 Ray v. Simons, 76 Ind. 150 ; Rose v. Colter, 76 Ind. 590. 
 
 6 State v. Benoist, 37 Mo. 500. 6 Allen v. Kingon, 41 Mich. 281. 
 
FRAUDULENT INTENT. 29 
 
 particular creditor who assails the transfer, for the intent 
 to delay, hinder, or defraud one creditor renders the trans- 
 fer void as to all. 1 It has never been determined to be 
 necessary in order to make a transfer void that any cred- 
 itor should be actually hindered or delayed. The statute 
 speaks of those who may be hindered. 3 
 
 Corporations. — A Corporation may in judgment of law 
 intend to defraud creditors. 3 
 
 Other Motive. — 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. 4 
 
 Benefit of Grantor. — If a transfer is made with the 
 intent to delay, hinder, or defraud creditors, it is void 
 whether it is made for the benefit of the debtor or not. 5 
 
 Act authorized by Statute. — Acts which are done 
 in pursuance of a statute cannot be deemed fraudulent, 
 for the statute is enacted by the power that made the law 
 of fraud, and can therefore with equal power unmake that 
 law. 6 
 
 A Fraudulent Transfer not necessarily Ficti- 
 tious. — In a fraudulent conveyance there is generally an 
 
 'Turbervill v. Tipper, Palm. 415, note; Bex v. Nottinghan, Lane, 42; 
 Warneford's Case, Dyeiyl93, 267; Winer v. Warner, 2 Grant, 448; Hoke 
 v. Henderson, 3 Dev. 12 ; Gruber v. Boyles, 1 Brev. 266 ; Dardenne v. 
 Hardwick, 9 Ark. 482 ; Warner v. Percy, 22 Vt. 155 ; Bodine v. Sim- 
 mons, 38 Mich. 682 ; vide Wilson v. Fuller, 9 Kans. 176. 
 
 2 Bichardson v. Smallwood, Jac. 552 ; Main v. Lynch, 47 Md. 658. 
 
 3 Curtis v. Leavitt, 15 N. Y. 9 ; s. c. 17 Barb. 309 ; Smith v. Morse, 2 
 Cal. 524. 
 
 4 Beed v. Noxon, 48 111. 323. 5 Barkow v. Sanger, 47 Wis. 500. 
 6 State v. Curran, 12 Ark. 321. 
 
30 FRAUDULENT INTENT. 
 
 intention to secure some interest in the property to the 
 debtor, or some future right in it to the prejudice- of the 
 creditors, 1 and therefore it is sometimes said that a fraud- 
 ulent instrument is one which the parties do not intend 
 to carry out as a real instrument according to its apparent 
 character and effect. 3 Dolus est rnaehmatio cwm aliud dis- 
 simulat aliud agit. 3 It is manifest, however, that an in- 
 strument may be fraudulent, although it is intended to 
 operate 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. 
 
 Verdict not Conclusive. — The verdict of a jury upon 
 a question of fraud is not conclusive, but may be set aside 
 the same as in any other cas». 4 
 
 1 Northampton Bank v. Whiting, 12 Mass. 104; Belmont v. Lane, 22 
 How. Pr. 365. 
 
 s Eveleigh v. Purrsford, 2 Mood. & Rob. 539 ; Doe v. Routledge, 
 Cowp. 705. 
 
 3 Rex v. Nottingham, Lane, 42. 
 
 4 Dodd v. McCraw, 8 Ark. 83 ; Vance v. Phillips, 6 Hill, 433 ; Potter 
 v. Payne, 21 Conn. 361 ; Marston v. Vultee, 12 Abb. Pr. 143 ; Edwards v. 
 Currier, 43 Me. 474 ; Weisiger v. Chisholm, 28 Tex. 780 ; 22 Tex. 670. 
 
CHAPTER IV. 
 
 BADGES OF FRAUD. 
 
 The Term "Badges oj>-Fraud" explained. — A badge 
 of fraud is sometimes called a sign of fraud, 1 a mark of 
 fraud, 3 a circumstance of fraud, 3 an evidence of fraud, 4 
 and an argument of fraud. 5 These terms are all syn- 
 onymous, and simply denote an act which has a fraudulent 
 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 ascertaining 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 experience. A badge 
 of fraud is simply an inference drawn by experience from 
 the customary conduct of mankind. 6 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. 7 Its 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. 8 
 
 1 Twyne's Case, 3 Mo. 80 ; Moore, 638. 
 5 Twyne's Case, 3 Mo. 80 ; Moore, 638. 
 a Cadogan v. Kennett, 2 Cowp. 432. 
 
 4 Cadogan v. Kennett, 2 Cowp. 432. 
 
 5 Cadogan v. Kennett, 2 Cowp. 432. 6 Terrell v. Green, 11 Ala. 207. 
 ' Peebles v. Horton, 64 N. C. 374 ; Pilling v. Otis, 13 Wis. 495 ; Sher- 
 man v. Hogland, 73 Ind. 472. 
 
 8 Terrell v. Green, 11 Ala. 207. 
 3 
 
32 BADGES OF FRAUD. 
 
 Why an Act is a Badge of Fraud. — The reason why 
 any fact is denominated a badge of fraud is either because 
 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 consequence 
 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 transaction. 1 If the departure from 
 the usual course of business consists in an attempt to con- 
 ceal, 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 for effect to give the semblance 
 of reality to that which is fictitious. 3 It evinces a diffi- 
 dence in the rectitude of the transaction, and a correspon- 
 dent solicitude to provide defenses. 3 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 usually content 
 to carry them into effect in the usual mode. 4 To raise 
 such a suspicion, however, upon this ground, it is not suffi- 
 cient that the transfer shall be out of the ordinary course 
 of the debtor's business, but it must be out of the usual 
 course in which men commonly make such transfers. 5 
 
 1 Sands v. Codwise, 4 Johns. 536 ; Borland v. Walker, 7 Ala. 269 ; 
 Kempner v. Churchill, 8 Wall. 362 ; Sayre v. Fredericks, 16 K J. Eq. 205 ; 
 Poague v. Boyce, 6 J. J. Marsh, 70 ; Godfrey v. Germain, 24 Wis. 410 ; 
 Rothberger v. Gough, 52 111. 436. 
 
 2 Comstock v. Rayford, 20 Miss. 369, s. C. 9 Miss. 423. 
 
 3 Sands v. Codwise, 4 Johns. 536. 
 1 Potter v. McDowell, 31 Mo. 62. 
 
 ; Derby v. Gallup, 5 Minn. 119 ; Hathaway v. Brown, 18 Minn. 414. 
 
BADGES OF FRAUD. 33 
 
 All Badges of Fraud not of equal Weight. — All 
 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, mean- 
 ing 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. 1 
 There is not, moreover, any ascertained rule of law which 
 fixes and determines what acts or declarations of a party 
 shall in all cases be required to establish fraud ; but, on 
 the contrary, the badges of fraud may, and often do, vary 
 according to the intellectual character and moral depravity 
 of the perpetrator, the end designed to be attained, and the 
 means by which it is to be accomplished. 2 
 
 Effect of a Badge of Fraud. — A badge of fraud does 
 not constitute fraud itself, but is simply evidence of fraud, 
 a means of establishing a fraudulent intent. 3 It is not 
 necessary, however, in order to condemn a transaction as 
 fraudulent, that two or more of the marks 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. 4 
 The concurrence of several badges will, however, always 
 
 1 Pilling v. Otis, 13 Wis. 495. 
 
 2 Richards v. Swan, 7 Gill, 366; 2 Md. Ch. Ill; Schaferman v. 
 O'Brien, 28 Md. 565. 
 
 a Wilson v. Lott, 5 Fla. 305 ; Allen v. Wheeler, 70 Mass. 123 ; Pilling 
 v. Otis, 13 Wis. 495 ; Hill v. Bowman, 35 Mich. 191 ; Thomas v. Rem- 
 bert, 63 Ala. 561. 
 
 4 Peck v. Land, 2 Geo-. 1. 
 
34 BADGES OF FRAUD. 
 
 make out a strong case, because the concurrence of a num- 
 ber of independent circumstances, each tending to prove a 
 fact, increases and strengthens the probability of its truth. 1 
 
 Instructions to Jury. — Circumstances which the law 
 considers as badges of fraud only should be submitted to 
 the jury, so that they may draw their own conclusions as 
 to the character of the transaction. 2 But an instruction 
 that fraud may be inferred from certain circumstances, un- 
 less the alleged circumstances are of such a character that 
 the law itself raises the presumption, is erroneous. 3 If 
 the circumstances are proper and innocent in themselves, 
 they do not necessarily tend to prove fraud, and an instruc- 
 tion that fraud may be inferred from them should not be 
 given.* 
 
 No Enumeration Possible. — The modes of perpetrat- 
 ing fraud are so various, and the circumstances that may 
 indicate a fraudulent intent are so numerous, that it is 
 impossible to anticipate or enumerate all the badges of 
 fraud. 5 
 
 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. 6 A transfer of all the property 
 of the debtor not only diminishes the fund, but is not an 
 
 1 Smith v. Henry, 2 Bailey, 118 ; S. c. 1 Hill, 16 ; Williams v. Bar- 
 nett, 52 Tex. 130 ; Thomas v. Eembert, 63 Ala. 561. 
 ! King v. Russell, 40 Tex. 124. 
 
 8 Herkelrath v. Stookey, 63 111. 486 ; Leasure v. Colburn, 57 Ind. 274. 
 4 Kane v. Drake, 27 Ind. 29. 
 Thinizy v. Clark, 62 Geo. 623. 
 •Peck v. Land, 2 Geo. 1. 
 
BADGES OF FRAUD. 35 
 
 ordinary transaction, and is, therefore, a badge of fraud. 1 
 Dolus versatur in urdv&rsalibus? The universality of the 
 transfer is a circumstance to be considered in connection 
 with all the other facts of the case. Under some circum- 
 stances it raises a violent presumption of fraud, while 
 under other and different circumstances it is but a slight 
 indication of a fraudulent intent. 3 As it is merely a badge 
 of fraud, the transfer will be valid if it is made in good 
 faith, although it includes all the debtor's property. 4 If 
 
 ^wyne's Case, 3 Co. 80; Moore, 638; Hawkins v. Allston, 4 Ired. 
 Eq. 137 ; Tubb v. Williams, 7 Humph. 367 ; Farmers' Bank v. Douglass, 
 19 Miss. 469 ; Trimble v. Ratcliff, 9 B. Mon. 511; 12 B. Mon. 32 ; Bozman 
 v. Draughan, 3 Stew. 243 ; Rollins v. Mooera, 25 Me. 192 ; Hord v. Rust, 
 4 Bibb, 231 ; Lewis v. Love, 2 B. Mon. 345 ; Venable v. Bank, 2 Pet. 107; 
 Langford v. Fly, 7 Humph. 585 ; Hartshorne v. Eames, 31 Me. 93 ; Bean 
 v. Smith, 2 Mason, 252 ; Harrison v. Campbell, 6 Dana, 263 ; Enders v. 
 Swayne, 8 Dana, 103 ; Garland v. Rives, 4 Rand. 282 ; Pope v. Andrews, 
 1 S. & M. Ch. 135 ; Lillard v. McGee, 4 Bibb, 165 ; Mason v. Baker, 1 A. 
 K. Marsh, 208 ; Beeler v. Bullitt, 3 A. K. Marsh, 280 ; Yoder v. Standi- 
 ford, 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, 54 111. 269 ; Burke v. Murphy, 27 Miss. 167 ; Wheel- 
 den v. Wilson, 44 Me. 1 ; Bibb v. Baker, 17 B. Mon. 292 ; Leadman v. 
 Harris, 3 Dev. 144; Kennedy v. Ross, 2 Mills Const. R. (S. C.) 125 ; Sayre 
 v. Fredericks, 16 ST. J. Eq. 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 v. Ensign, 21 Barb. 
 85 ; Wilson v. Lott, 5 Fla. 305 ; Constantine v. Twelves, 29 Ala. 607 ; 
 Meyer v. Simpson, 21 La. An. 591 ; Hutchinson v. Kelley, 1 Robt. 123 ; 
 Oakover v. Pettus, Cas. Temp. Finch, 270 ; Blow v. Maynard, 2 Leigh, 
 29 ; Hinton v. Curtis, 1 Pitts. L. J. 198 ; Peigne v. Snowden, 1 Dessau, 
 591 ; Hughes v. Roper, 42 Tex. 116 ; Dresher v. Corson, 23 Kans. 313 ; 
 Fleming v. Hiob, 3 Bradw. 390 ; Booher v. Worrill, 57 Geo. 235. 
 
 ! Twyne's Case, 3 Co. 80; Moore, 638. 
 
 3 Bigelow v. Doolittle, 36 Wis. 115 ; Kerr v. Hutchins, 46 Tex. 384. 
 
 4 Alton v. Harrison, L. R. 4 Ch. Ap. 622 ; Planters' Bank v. Borland, 5 
 Ala. 531 ; Borland v. Mayo, 8 Ala. 104 ; Dardenne v. Hardwicke, 9 Ark. 
 482 ; Bank of Georgia v. Higginbottom, 9 Pet. 48. 
 
36 BADGES OF FRAUD. 
 
 several distinct transfers are not so closely connected as to 
 constitute one transaction, they do not fall within the 
 rule. 1 A transfer of all the debtor's property does not 
 warrant the inference that the grantee is aware of the 
 debtor's insolvency. 2 
 
 Generalities. — Dolus versatur in generalibus is also a 
 recognized maxim of the law. 3 Comprehensive generalities 
 in a deed without any particular specifications are a badge 
 of fraud. 4 Men engaged in real transactions do not com- 
 monly deal so loosely. A real purchaser is seldom content 
 with anything short of a precise and unequivocal descrip- 
 tion. 
 
 Embarrassment. — 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. 5 Indebtedness alone does not, however, deprive a 
 
 1 Preston v. Griffin, 1 Conn. 393 ; Scott v. Winship, 20 Geo. 429. 
 
 2 Borland v. Mayo, 8 Ala. 104. 
 
 3 Stone v. Grubbam, 2 Bulst. 217 ; 1 Eol. Bep. 3. 
 
 4 Duvall v. Waters, 1 Bland, 569; s. c. 11 G. & J. 37; Delaware v. 
 Ensign, 21 Barb. 85; Gardner v. McEwen, 19 N. Y. 123; Conkling v. 
 Shelley, 28 N. Y. 360 ; McCain v. Wood, 4 Ala. 258 ; Lang v. Lee, 
 3 Band. 410 ; Thompson v. Drake, 3 B. Mon. 565. 
 
 6 Duvall v. Waters, 11 G. & J. 37 ; s. C. 1 Bland, 569 ; Durkee v. Ma- 
 honey, 1 Aik. 116 ; Tavenner v. Robinson, 2 Rob. 280 ; Borland v. Wal- 
 ker, 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, 20 Miss. 369 ; 9 Miss. 423 ; Sayre v. Fredericks, 16 
 N". J. Eq. 205 ; Richards v. Swan, 7 Gill, 366 ; 2 Md. Ch. Ill ; McNeal v. 
 Glenn, 4 Md. 87 ; s. O. 3 Md. Ch. 349 ; Jackson v. Mather, 7 Cow. 301 ; 
 Phettiplaice v. Sayles, 4 Mason, 312; Borland v. Walker, 7 Ala. 269; 
 Merrill v. Lock, 41 N. H. 486 ; Darden v. Skinner, 2 2T. C. L. R. 279 ; Ring- 
 gold v. Waggoner, 14 Ark. 69 ; Walcott v. Almy, 6 McLean, 23 ; Barrow 
 v. Bailey, 5 Fla. 9 ; Satterwhite v. Hicks, Busbee, 105 ; Overton v. Morris, 
 3 Port. 249 ; Planters' Bank v. Walker, 7 Ala. 926 ; Kinder v. Macy, 7 
 
BADGES OF FRAUD. 37 
 
 debtor of his dominion over his property. It is merely a 
 circumstance that causes all his transactions to be scruti- 
 nized closely and carefully, for it furnishes a strong motive 
 to make a fraudulent transfer. 1 In order to affect a vendee, 
 however, the indebtedness must be known to him. Vendors 
 generally are indebted, and if sales by an insolvent were 
 void, a vendee would be compelled to obtain an abstract of 
 his vendor's circumstances as well as of his title. 2 
 
 Pendency of Suit. — The expectation 3 or pendency of 
 a suit is a badge of fraud, because a transfer tends to 
 deprive the creditor of the means of enforcing his judgment 
 when he obtains it. 4 If an attorney who holds a claim for 
 
 Cal. 206 ; Bakerv. Bibb, 17 B.Mon. 292; Purkittv. Polack, 17 Cal. 327; 
 Sheppard v. I vers on, 12 Ala. 97; Rollins v. Mooers, 25 Me. 192; Blod- 
 gett v. Chaplin, 48 Me. 322 ; Glenn v. Glenn, 17 Iowa, 498 ; Hartshorne 
 v. Eames, 31 Me. 93 ; Clark v. Depew, 25 Penn. 509 ; Harrison v. Camp- 
 bell, 6 Dana, 263; Tubb v. Williams, 7 Humph. 367; Bulkleyv. Buffing- 
 ton, 5 McLean, 457; Dick v. Grissom, 1 Freem. Ch. (Miss.) 428; Beeler 
 v. Bullitt, 3 A. K. Marsh, 280 ; Enders v. Swayne, 8 Dana, 103 ; McCon- 
 nell v. Brown, Litt. Sel. Cas. 459 ; Pope v. Andrews, 1 S. & M. Ch. 135 ; 
 Parrish v. Danford, 1 Bond. 345 ; Cox v. Fraley, 26 Ark. 20 ; Dunlap v. 
 Haynes, 4 Heisk. 476. 
 
 1 Glenn v. Glenn, 17 Iowa, 498 ; Crawford v. Kirksey, 50 Ala. 591 ; 
 Wake v. Griffin; 9 Neb. 47 ; Pervel v. Merritt, 70 Mo. 275 ; Apperson v. 
 Burgett, 33 Ark. 328. 
 
 2 Copis v. Middleton, 2 Madd. 410; Scheitlin v. Stone, 3 Barb. 634; 
 S. 0. 29 How. Pr.355; Fuller v. Brewster, 53 Md. 358. 
 
 3 Glenn v. Glenn, 17 Iowa, 498. 
 
 4 Twyne's Case, 3 Co; 80; Moore, 638; Merrill v. Locke, 41 N. H. 
 486; Satterwhite v. Hicks, Busbee, 105 ; Overton v. Morris, 3 Port, 249; 
 Sheppard v. Iverson, 12 Ala. 97; Johnston v. Dick, 27 Miss. 277; Gibson 
 v. Hill, 23 Tex. 77; 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. Parsons, 9 Mo. 823 ; Colquitt v. 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 v. 
 Drake, 3 B. Mon. 565 ; Beeler v. Bullitt, 3 A. K. Marsh, 280 ; Yoder 
 v. Standiford, 7 Mon. 478 ; Adams v. Sater, 19 Ind. 418 ; Howard v. Craw- 
 
38 BADGES OF FRAUD. 
 
 collection is induced to delay the institution of a suit at the 
 request of the debtor, -who thereupon takes advantage of 
 the delay to make a conveyance, this is a badge of fraud 
 the same as if the suit were actually pending. 1 The pen- 
 dency of a suit, however, is merely a badge of fraud. A 
 transfer may be shown to be fraudulent, although it was 
 made when no suit was pending. 2 And, on the other hand, 
 a transfer may be shown to be valid although it was made 
 while a suit was pending, for the mere pendency of an 
 action does not of itself make a transfer fraudulent. 3 The 
 pendency of a suit is not constructive notice of the indebted- 
 ness to those who are not parties to the action. 4 
 
 Secrecy. — 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 clandestma 
 sunt suspiciosa? The secrecy which constitutes a badge of 
 
 ford, 21 Tex. 399 ; Redfleld Manuf. Co. v. Dysart, 62 Penn. 62 ; Godfrey 
 v. Germain, 24 Wis. 410 ; Babb v. Clemson, 10 S. & R. 419 ; Williams 
 v. Lowndes, 1 Hall, 579 ; Thornton v. Davenport, 2 111. 296 ; Stoddard v. 
 Butler, 20 Wend. 507 ; s. c. 7 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 v. Hatch, 3 Ohio, 527 ; Callan v. 
 Statham, 23 How. 477 ; Sayre v. Fredericks, 16 1ST. J. Eq. 205 ; Smith v. 
 Henry, 2 Bailey, 118 ; s. c. 1 Hill, 16 ; Forsyth v. Matthews, 14 Penn. 100 ; 
 Peck v. Land, 2 Geo. 1 ; Barr v. Hatch, 3 Ohio, 527 ; Lowry v. Howard, 
 35 Ind. 170 ; Shearon v. Henderson, 38 Tex. 245 ; Fishel v. Ireland, 52 
 Geo. 632 ; Hughes v. Roper, 42 Tex. 116 ; Ford v. Johnston, 14 N. T. 
 Supr. 563 ; Crawford v. Kirksey, 50 Ala. 591 ; Booker v. Worrill, 57 Geo. 
 235 ; Carter v. Baker, 10 Heisk, 640 ; Sherman v. Hogland, 73 Ind. 472 ; 
 Soden v. Soden, 54N. J. Eq. 115. 
 
 1 Morris Canal Co. v. Stearns, 23 N. J. Eq. 414. 
 
 3 Sheanv. Shay, 42 Ind. 375. 
 
 8 Ray v. Brown, 2 Blackf. 258 ; Lowry v. Howard, 35 Ind. 170 ; Smith 
 v. Henry, 2 Bailey, 118 ; 1 Hill 16 ; Sipe v. Earman, 26 Gratt. 563. 
 
 4 Shearon v. Henderson, 38 Tex. 245. 
 
 s Twyne's Case, 3 Co. 80 ; Moore, 638 ; Coriett v. Radcliffe, 14 Moore, 
 P. C. 121 ; McLachlan v. Wright, 3 Wend. 348 ; Burtus v. Tisdall, 4 
 
BADGES OF FRAUD. 39 
 
 fraud is not, however, a mere want of notoriety, but a con- 
 cealment or an attempted concealment. 1 It is not, more- 
 over, conclusive proof, but merely a circumstance from 
 which, in connection with other facts, fraud may be 
 inferred. 3 Consequently an agreement by a vendee to con- 
 ceal his purchase is merely evidence of fraud. 3 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. 4 
 
 Concealment. — A deed not at first fraudulent may 
 become so by being concealed, because by its concealment 
 persons may be induced to give credit to the grantor. 5 In 
 such a case the use that is made of it relates back, and 
 shows the intent with which it was made. 6 The omission 
 to place a deed on record, 7 or leaving it in the hands of the 
 
 Barb. 571 ; Darden v. Skinner, 2 N. C. L. R. 279 ; Shiveley v. Jones, 6 
 B. Mon. 274 ; Barrow v. Bailey, 5 Fla. 9 ; James v. Johnson, 22 La. An. 
 195 ; Stone v. Grubbam, 2 Bulst. 217 ; S. C. 1 Rol. Rep. 3 ; Woodham v. 
 Baldock, Gow. 35 note ; 3 Moore, 11 ; Vick v. Keys, 2 "Hayw. 126 ; War- 
 ner v. Norton, 20 How. 448 ; Callan v. Statham, 23 How. 477 ; Ross v. 
 Crutsinger, 7 Mo. 245 ; King v. Moon, 42 Mo. 551 ; Delaware v. Ensign, 
 21 Barb. 85. 
 
 1 Vick v. Keys, 2 Hayw. 126. 
 
 8 Stone v. Grubbam, 2 Bulst. 217 ; s. C. 1 Rol. Rep. 3 ; Warner v. 
 Norton, 20 How. 448. 
 
 3 Gould v. Ward, 21 Mass. 103 ; s. c. 22 Mass. 291. 
 
 4 Haven v. Richardson, 5 N. H. 113. 
 
 4 Hungerford v. Earle, 2 Yern. 261 ; Sands v. Hildreth, 2 Johns. Ch. 35 ; 
 s. C. 14 Johns. 493; Lewkner v. Freeman, 2 Freem. 236; s. c. Prec. Ch. 
 105; S. c. Eq. Cas. Abr. 149; Hilderbum v. Browu, 17 B. Mon. 779; 
 Tarback v. Marbury, 2 Yern. 510; Scrivenor v. Scrivenor, 7 B.Mon. 374. 
 
 6 Worseley v. De Mattos, 1 Burr. 467 ; Constantine v. Twelves, 29 
 Ala. 607 ; Mc Williams v. Rodgers, 56 Ala. 87. 
 
 ' Coates v. Gerlach, 44 Penn. 43 ; Hood v. Brown, 2 Ohio, 267 ; Scriv- 
 enor v. Scrivenor, 7 B. Mon. 374; Law v. Smith, 4 Ind. 56; Hodges v. 
 Blount, 1 Hayw. 414; Bank of U.S. v. Houseman, 6 Paige, 526; Bank v. 
 Gourdin, Speers Ch. 439; Gaither v.Mumford, 1N.C.T.R. 167; Beecher 
 
40 BADGES OF FRAUD. 
 
 grantor, 1 or placing it in the hands of a third person to be 
 produced or suppressed accordingly as exigencies may de- 
 mand, 2 are instances of secrecy that are within the rule. 
 If secrecy is a part of the consideration for securities 
 obtained from a debtor who is about to abscond, it con- 
 taminates them ; but if there is no such agreement, those 
 who receive them need not apprise other creditors of his 
 intention. 3 
 
 Secret Trust. — A secret trust between the parties is 
 a badge of fraud, for fraud is always appareled and clad 
 with a trust, and a trust is the cover of fraud. That which 
 is called a trust per nomen specioswm, as between the 
 grantor and the grantee, is in truth as to all the creditors 
 a fraud, for they are thereby defeated and defrauded. 4 
 
 False Recitals. — An instrument which misrepresents 
 the transaction that it recites is evidence of a secret trust, 
 and is calculated to mislead and deceive creditors. 5 A 
 false recital is; therefore, a badge of fraud, and the instru- 
 ment in which it occurs must sustain a rigorous examina- 
 tion. Erroneous recitals may, however, and often do hap- 
 pen through mistake, inadvertence, or carelessness, and for 
 
 v. Clark, 10 N. B. R. 385; s. C. 12 Blatch. 256; Folsorn v. Clemence, 111 
 Mass. 273; Hilliard v. Cagle, 46 Miss. 309; Thouron v. Pearson, 29 N. J. 
 Eq. 487; Stewart v. Hopkins, 30 Ohio St. 502 ; Thompson v. Feagin, 60 
 Geo. 82 ; Van Kleeck v. Miller, 19 N. B. R. 484. 
 
 1 Eveleigti v. Pursford, 2 Mood. & Rob. 539. 
 
 s Brown v. McDonald, 1 Hill Ch. 297 ; Lasher v. Stafford, 30 Mich. 369. 
 
 3 Hafner v. Irwin, 1 Ired. 490. 
 
 "Twyne's Case,. 3 Co. 80; Moore, 638; Shaffer v. Watkins, 7 W. & 
 8. 219 ; McCulloch v. Hutchinson, 7 Watts, 434 ; Robert v. Hodges, 16 
 X. J. Eq. 299. 
 
 6 Kempner v. Churchill, 8 Wall. 362 ; Divver v. McLaughlin, 2 Wend. 
 596 ; Rickett v. Pipkin, 64 Ala. 920 ; Summers v. Howland, 2 Baxter, 407. 
 
BADGES OP FRAUD. 41 
 
 this reason are not conclusive evidence of fraud. 1 In order 
 to be conclusive, there must be intentional disguise, dis- 
 sembling, or falsehood. 2 When, however, the true charac- 
 ter 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 transac- 
 tion, instead of stating the truth, there was not a design to 
 mislead and deceive creditors ; 3 but if, upon investigation, 
 the real transaction appears to be fair, though somewhat 
 different from that which is described, it will be valid. 4 
 
 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. 5 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 credit- 
 ors, is plainly deceptive, and tends to delay, hinder and 
 defraud creditors. It is, however, merely a badge, and not 
 conclusive evidence of fraud. 6 In this respect there is no 
 
 1 Fetter v. Cirode, 4 B. Mon. 482. 
 8 Barker v. French, 18 Vt. 460. 
 
 3 McKinster v. Babcock, 26 N". T. 378 ; Ingles v. Donaldson, 2 Hayw. 
 57. 
 
 4 Shirras v. Craig, 7 Cranch, 34 ; Goodheart v. Johnson, 88 111. 58. 
 
 5 Ingles v. Donaldson, 2 Hayw. 57; Gaither v. Mumford, 1 N. C. T. K. 
 167. 
 
 e Harrison v. Phillips' Academy, 12 Mass. 456 ; Richards v. Allen, 25 
 Mass. 405 ; New England Marine Ins. Co. v. Chandler, 16 Mass. 275 ; 
 Reed v. Woodman, 4 Me. 400 ; Stevens v. Hinckley, 43 Me. 440 ; Gibson 
 v. Seymour, 4 Vt. 518 ; Smith v. Onion, 19 Vt. 427; Rucker v. Abell, 8 
 B. Mon. 566 ; Gaffney v. Signaigo, 1 Dillon, 158 ; Gibbs v. Thompson, 7 
 
42 BADGES OF FRAUD. 
 
 distinction between the conveyance of real and personal 
 estate. 1 If, however, it appears that the grantee took an 
 absolute conveyance, with a secret trust to hold the sur- 
 plus for the use of the grantor, with the intention to pre- 
 vent his creditors from resorting to it, the transfer will be 
 void. 2 A mere understanding that the grantor may repur- 
 chase the property at some future time, by paying a sum 
 equal to the original price, if made bona fide, is not fraud- 
 ulent, whether it be by parol or in writing. 3 A note for an 
 absolute sum may be taken to cover a liability as a surety. 4 
 
 False Statement of Consideration. — A false state- 
 ment of the consideration for a transfer tends to deceive 
 
 Humph. 179; Bank v. Jacobs, 10 Mich. 349 ; Ohickering v. Hatch, 3 Sum- 
 ner, 474 ; Blair v. Bass, 4 Blackf. 539 ; Ingles v. Donaldson, 2 Hayw. 57; 
 Reed v. Jewett, 5 Me. 96 ; Emmons v. Bradley, 56 Me. 333 ; Spaulding v. 
 Austin, 2 Vt. 555 ; Oriental Bank v. Haskins, 44 Mass. 332 ; Cutler v. 
 Dickinson, 25 Mass. 386 ; Yoder v. Standiford, 7 Mon. 478 ; Wiley v. 
 Lashlee, 8 Humph. 717; Fletcher v. Willard, 31 Mass. 464; Waters v. 
 Riggin, 19 Md. 536 ; Doswell v. Adler, 28 Ark. 82 ; Thompson v. Pen- 
 nell, 67 Me. 159 ; Gibson v. Hough, 60 Geo. 588 ; Phinizy v. Clark, 62 
 Geo. 623 ; contra, Winkley v. Hill, 9 N. H. 31 ; Towle v. Hoitt, 14 N. H. 
 61 ; Ladd v. Wiggins, 35 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. Cush- 
 ing, 12 N. H. 105 ; McCulloch v. Hutchinson, 7 Watts, 434 ; Chenery v. 
 Palmer, 6 Cal. 119 ; King v. Cantrel, 4 Ired. 251 ; Halcomb v. Ray, 1 
 Ired. 340 ; Gregory v. 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 ; McNeal v. Glenn, 
 4 Md. 87; S. c. 3 Md. Ch. 349 ; Sims v. Gaines, 64 Ala. 392 ; vide St. John 
 v. Camp, 17 Conn. 222 ; Whitaker v. Sumner, 37 Mass. 399. Where it 
 is held to be conclusive it does not make the deed void as against subse- 
 quent creditors. Smyth v. Carlisle, 16 N. H. 464; s. c. 17 N. H. 417. 
 
 1 Oriental Bank v. Haskins, 44 Mass. 332. 
 
 2 Barker v. French, 18 Vt. 460 ; Harrison v. Phillips' Academy, 12 
 Mass. 456. 
 
 3 Phettiplace v. Sayles, 4 Mason, 312 ; Bare v. Hatch, 3 Ohio, 527 ; 
 Glenn v. Randall, 2 Md. Ch. 220; Anderson v. Fuller, 1 McMullan Ch. 27. 
 
 4 Prescott v. Hayes, 43 N. H. 593. 
 
BADGES OF FRAUD. 43 
 
 creditors, and is a badge of fraud. 1 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. 3 If the 
 statement is intentionally false, it is an act of direct fraud, 
 for no device is 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. 3 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. 4 The taking of a judg- 
 ment, 5 or the issuing of an execution, 6 for more than is 
 
 1 Shirras v. Craig, 7 Cranch, 34 ; McKinster v. Babcock, 26 N. Y. 
 378 ; Gibbs v. Thompson, 7 Humph. 179 ; Bumpas v. Dotson, 7 Humph. 
 310 ; Miller v. Lockwood, 32 N. Y. 293 ; Peebles v. Horton, 64 N. C. 
 374; Foster v. Woodfin, 11 Ired. 339; McCaskle v. Amarine, 12 Ala. 17; 
 Thompson v. Drake, 3 B. Mon. 565 ; Venable v. Bank, 2 Pet. 107; Mc- 
 Elfatrick v. Hicks, 21 Penn. 402; Turbeville v. Gibson, 5 Tenn. 565; 
 Enders v. Swayne, 8 Dana, 103 ; Keith v. Proctor, 8 Baxter, 189 ; Kevan 
 v. Crawford, L. E. 6 Ch. Div. 29. 
 
 s Parker v. Barker, 43 Mass. 423 ; Prince v. Sheppard, 26 Mass. 176 ; 
 Bailey v. Burton, 8 Wend. 339 ; Miller v. Lockwood, 32 N. Y. 293 ; Sto- 
 ver v. Harrington, 7 Ala. 142 ; Lynde v. McGregor, 95 Mass. 172; Prost 
 v. Warren, 42 N. Y. 204 ; Beeler v. Bullitt, 3 A. K. Marsh, 280 ; Tripp 
 v. Vincent, 8 Paige, 176 ; Wilson v. Horr, 15 Iowa, 489 ; Wooley v. Frey, 
 30 111. 158 ; Foley v. Foley, 14 N. J. Eq. 350 ; Davenport v. Cummings, 
 15 Iowa, 219 ; Alabama Ins. Co. v. Pattway, 24 Ala. 544; Weeden v. 
 Hawes, 13 Conn. 50 ; Thompson v. Drake, 3 B, Mon. 565 ; Bumpas v. 
 Dotson, 7 Humph. 310 ; McCrassly v. Haslock, 4 Baxter, 1 ; Barkow v. 
 Sanger, 47 Wis. 500 ; Willison v. Desinberg, 41 Mich. 156 ; King v. Hub- 
 bell, 42 Mich. 597; Schmidt v. Opie, 33 N. J. Eq. 138 ; Goff v. Rogers, 
 71 Ind. 459 ; Tognini v. Kyle, 15 Nev. 464 ; Holt v. Creamer, 34 1ST. J. 
 Eq. 181 ; Heintze v. Bentley, 34 N. J. Eq. 562 ; Wood v. Scott, 58 Iowa, 
 114 ; Cordes v. Straszer, 8 Mo. Ap. 61 ; Kalk v. Fielding, 50 Wis. 339 ; 
 vide Butts v. Peacock, 23 Wis. 359. 
 
 8 Hawkins v. Alston, 4 Ired. Eq. 137; Marriott v. Givens, 8 Ala. 694. 
 
 4 Carpenter v. Muren, 42 Barb. 300. 
 
 6 Clark v. Douglass, 62 Penn. 408 ; Felton v. Wadsworth, 61 Mass. 
 587; Ayres v. Husted, 15 Conn. 504 ; Shedd v. Bank, 32 Vt. 709 ; Daven- 
 port v. Wright, 51 Penn. 292. 
 
 6 Wilder v. Fondey, 4 Wend. 100 ; Harris v. Alcock, 10 G. & J. 226. 
 
44 BADGES OF FRAUD. 
 
 due, is not per se fraudulent, but the validity of the judg- 
 ment or execution depends on the intent of the parties. A 
 false recital of the payment of the consideration is a badge 
 of fraud, but the inference may be rebutted by proof that 
 the consideration was subsequently paid in good faith, in 
 pursuance of the understanding of the parties at the time. 1 
 The antedating of an instrument is also a mark of fraud. 3 
 
 Inadequacy. — A vendee who purchases the property 
 of an insolvent debtor for less than its value thereby 
 deprives the creditors of the difference, and defeats their 
 just expectations. There is also in such a case a violent 
 presumption of a secret trust. 3 Inadequacy of price thus 
 tends to defraud them, and is a badge of fraud. 4 There is 
 no rule of law as to what disparity between the real value 
 
 1 Alexander v. Todd, 1 Bond, 175. 
 
 2 Wright v. Hancock, 3 Munf. 521; Jones v. Henry, 3 Litt. 427; Lindle 
 v. Neville, 13 S. & R. 227; Patterson v. Bodenhamer, 9 Ired. 96 ; Moog 
 v. Benedicks, 49 Ala. 512. 
 
 3 Shelton v. Church, 38 Conn. 416 ; Rhoads v. Blatt, 84 Penn. 31. 
 
 4 Steere v. Hoagland, 39 111. 264 ; Sands v. Hildreth, 14 Johns. 493 ; 
 s. c. 2 Johns. Ch. 35 ; Darden v. Skinner, 2 N. C. L. R. 279 ; Jessup v. 
 Johnston, 3 Jones (N. C), 335 ; Gardiner Bank v. Wheaton, 8 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, 54 111. 269 ; Williamson v. 
 Goodwyn, 9 Gratt. 503 ; Tubb v. Williams, 7 Humph. 367; Shepp'ard v. 
 Iverson, 12 Ala. 97; Trimble v. Batcliffe, 9 B. Mon. 511; s.C. 12 B. Mon. 
 32; Merry v. Bostwick, 13 111. 398; Burke v. Murphy, 27 Miss. 167; 
 Motley v. Sawyer, 38 Me. 68 ; Doughton v. Gray, 10 N. J. Eq. 323 ; 
 Taylor v. Moore, 2 Rand. 563 ; Bray v. Hussey, 24 Ind. 228 ; Blow v. 
 Maynard, 2 Leigh, 29; Bay v. Cook, 31 111. 336 ; Smead v. Williamson, 
 16 B. Mon. 492 ; Kinder v. Macy, 7 Cal. 206 ; Stanton v. Green, 34 Miss. 
 576 ; Gibson v. Hill, 23 Tex. 77 ; Haney v. Nugent, 13 Wis. 283 ; Water- 
 man v. Donalson, 43 111. 29 ; Craver v. Miller, 65 Penn. 456 ; Tavener v. 
 Bobinson, 2 Rob. 280 ; Hudgins v. Kemp, 20 How. 45 ; Callan v. Statham, 
 
BADGES OF FRAUD. 45 
 
 of property and the consideration paid will, in any case, 
 constitute inadequacy of price, but this must be ascertained 
 from the facts and circumstances of each particular case. 1 
 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 circumstances. To justify an 
 inference of fraud from the inadequacy of the price alone, 
 the consideration must be so clearly below the market 
 value as to strike the understanding at once with the con- 
 viction that such a sale never could have been made in 
 good faith. 2 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 vendor and vendee. 3 
 
 23 How. 477 ; Kempner v. Churchhill, 8 Wall. 362 ; Borland v. Mayo, 8 
 Ala. 104; Roach v. Deering, 17 Miss. 316; Foster v. Pugh, 20 Miss. 416; 
 Williams v. Kelsey, 6 Geo. 365 ; Delaware v. Ensign, 21 Barb. 85 ; Metro- 
 politan Bank v. Durant, 22 N. J. Eq. 35; Shelton v. Church, 38 Conn. 
 416 ; Scott v. Winship, 20 Geo. 429 ; Hyde v. Sontag, 1 Saw, 249 ; Jaeger v. 
 Kelly, 44 How. Pr. 122 ; 52 N. Y. 274 ; Peigne v. Snowden, 1 Dessau, 
 591; Morris Canal Co. v. Sterns, 23 N. J. Eq. 414; Dunlap v.Haynes, 
 4 Heisk. 476 ; Laidlaw v. Gilmore, 47 How. Pr. 67 ; Ames v. Gilmore, 59 
 Mo. 537 ; Jewett v. Cook, 81 111. 260 ; Hartfield v. Simmons, 12 Heisk. 
 253 ; Loring v. Dunning, 16 Fla. 119 ; Stevens v. Dillman, 86 111. 233 ; 
 Apperson v. Burgett, 33 Ark. 328 ; McFadden v. Mitchell, 54 Cal. 628; 
 Hoboken Bank v. Beekman, 33 N. J. Eq. 53 ; Roche v. Hassard, 5 Ir. Ch. 
 14 ; Fisher v. Shelver, 53 Wis. 498. 
 
 1 Barrow v. Bailey, 5 Fla. 9 ; Jaeger v. Kelley, 52 N. Y. 274 ; 44 How. 
 Pr. 122 ; Day v. Cole, 44 Iowa, 452 ; Van Wyck v. Baker, 23 1ST. Y. Supr. 68. 
 
 - Feigley v. Feigley, 7 Md. 537 ; Kempner v. Churchill, 8 Wall. 362 ; 
 Copis v. Middleton, 2 Madd. 410 ; Ratcliffe v. Trimble, 12 B. Mon. 32 ; 
 Borland v. Mayo, 8 Ala. 104 ; Prosser v. Henderson, 11 Ala. 484 ; Hoot 
 v. Sorrell, 11 Ala. 386 ; Jamison v. King, 50 Cal. 132 ; Hunt v. Hoover, 34 
 Iowa, 77 ; Wilson v. Jordan, 3 Woods, 642 ; Fuller v. Brewster, 53 Md. 
 358 ; Kaufman v. Whitney, 50 Miss. 103. 
 
 3 Barrow v. Bailey, 5 Fla. 9 ; Seaman v. White, 8 Ala. 656 ; Bozman 
 v. Draughan, 3 Stew. 243 ; Bryant v. Kelton, 1 Tex. 415 ; Kuykendall v. 
 McDonald, 15 Mo. 416; State v. Evans, 38 Mo. 150. 
 
46 BADGES OF FRAUD. 
 
 A fictitious consideration created by a purchase of articles 
 at high prices from the vendee is not sufficient. 1 The 
 pressure of circumstances may, however, compel a debtor 
 to sell his property at a sacrifice, for the purpose of meet- 
 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. 2 
 
 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, it is 
 therefore a circumstance of fraud. 3 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 debtor can not, under the 
 pretense of securing a debt, convey much more than is 
 necessary for that purpose, and really with the intent to 
 secure the use to himself and baflfie his creditors. Hence 
 the question is always one of intention. 4 
 
 Duration of Mortgage. — The time which a mortgage 
 has to run is a circumstance to be taken into consideration 
 
 • Reed v. Carl, 11 Miss. 74. 
 
 8 Hubbs v. Bancroft, 4 Ind. 388 ; Hale v. Saloon Omnibus Co., 4 
 Drew, 492; s. o. 28 L. J. Ch. 777. 
 
 8 Bailey v. Burton, 8 Wend. 339 ; Hawkins v. Allston, 4 Ired. Eq. 137; 
 Adams v. Wheeler, 27 Mass. 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; 24 N. Y. 359; Davis v. Ransom, 18 111. 396; 
 Jewett v. Warren, 12 Mass. 300 ; Hickman v. Perrin, 6 Cold. 135 ; Strohm 
 v. Hayes, 70 111. 41 ; Crapeter v. Williams, 21 Kans. 109 ; vide Downs v. 
 Kissam, 10 How. 102. 
 
 4 Burgin v. Burgin, 1 Ired. 453. 
 
BADGES OF FRAUD. 47 
 
 in determining the fairness of the transaction. If all or a 
 greater portion of the debtor's property is included 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 the creditors, because to the 
 surplus beyond the mortgagee's claims they must look for 
 the satisfaction of their demands. The evidence of a fraud- 
 ulent purpose is greater in proportion as the excess in 
 value is increased, and the time of indulgence prolonged. 1 
 
 Unusual Credit. — Creditors are entitled to sell the 
 property of the debtor for the satisfaction of their demands, 
 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. It is a hinderance 
 and delay within the meaning of the statute. 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. 2 A sale upon credit may be good, for 
 there is no principle of the law that prevents a debtor from 
 
 1 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 v. Douglass, 19 Miss. 469 ; Lewis v. Caperton, 8 Gratt. 
 148 ; Montgomery v. Kirksey, 26 Ala. 172 ; Wiley v. Knight, 27 Ala. 336 ; 
 Potter v. McDowell, 31 Mo. 62; Henderson v. Downing, 24 Miss. 106; 
 Davis v. Eansom, 18 111. 396 ; Roane v. Bank, 1 Head, 526 ; Brinley v. 
 Spring, 7 Me. 241. 
 
 2 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 ; Buhl v. Phillips, 2 Daly, 45 ; Dewey v. Littlejohn, 2 Ired. Eq. 495 ; 
 Borland v. Mayo, 8 Ala. 104; Roberts v. Shepard, 2 Daly, 110; Swift v. 
 Lee, 65 111. 336 ; Burt v. Keys_, 1 Flippin, 61. 
 
 4 
 
48 BADGES OF FRAUD. 
 
 selling on credit, if thereby he is able to obtain a better 
 price, 1 but if the debtor is insolvent, and his intent is to 
 coerce his creditors to accept notes drawn for a long time, 
 or keep them at bay until the time of credit expires, the 
 purpose is fraudulent. 2 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. 3 
 
 Perishable Articles. — If a mortgage or deed of trust 
 includes perishable articles, or articles consumable in their 
 use, this is a badge of fraud, for it raises a presumption of 
 a secret trust for the ease and favor of the debtor. 4 It is 
 for the same reason a mark of fraud if the debtor sells 
 chattels which are subject to a mortgage and converts the 
 avails to his own use. 5 
 
 1 Starr v. Strong, 2 Sandf. Ch. 139 ; Scheitlin v. Stone, 43 Barb. 634 ; 
 S. c. 29 How. Pr. 355; Pattison v. Stewart, 6 W. & S. 72; McCasland 
 v. Carson, 1 Head, 117; Bridge v. Loeschigk, 42 Barb. 171 ; s. c. 42 N. 
 T. 421 ; Ocoee Bank v. Nelson, 1 Cold. 186 ; Ruhl v. Phillips, 48 N. Y. 
 125 ; Starin v. Kelly, 36 N. T. Sup. 366 ; Harris v. Bums, 50 Cal. 140. 
 
 8 Kepner v. Burkhart, 5 Penn. 478 ; Pope v. Andrews, 1 S. & M. Ch. 
 135 ; How v. Camp, Walker Ch. 427 ; Owen v. Arvis, 26 N. J. 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. Kelly, 49 
 Barb. 547. 
 
 3 Nesbit v. Digby, 13 111. 387. 
 
 4 Elmes v. Sutherland, 7 Ala. 262; Hunter v. Foster, 4 Humph. 211 ; 
 Harney v. Pack, 12 Miss. 229 ; Farmers' Bank v. Douglass, 19 Miss. 469 ; 
 Potter v. McDowell, 31 Mo. 62 ; Darwin v. Handley, 3 Terg. 502 ; Simp- 
 son v. Mitchell, 8 Yerg. 417 ; Richmond v. Curdup, Meigs, 581 ; Planters' 
 & Merchants' Bank v. Clarke, 7 Ala. 765 ; Ewing v. Cargill, 21 Miss. 79 ; 
 Shurtlefl'v. Willard, 36 Mass. 202 ; Ravisies v. Alston, 5 Ala. 297 ; Goog- 
 ins v. Gilmore, 47 Me. 9 ; Sipe v. Earman, 26 Gratt. 563. 
 
 6 Dickenson v. Cook, 17 Johns. 332 ; McNeal v. Glenn, 4 Md. 87 ; s. c. 
 3 Md. Ch. 349 ; Park v. Harrison, 8 Humph. 412. 
 
BADGES OF FRAUD. 49 
 
 Possession of Land. — The retention of the possession 
 of land, with 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. 1 The acts of ownership by the debtor may consist 
 either in renting, 2 or collecting rents, 3 or giving receipts 
 for rent in his own name, 4 or directing the making of 
 leases, 5 or making sales of the land, 6 even though he acts 
 
 ' Duvall v. Waters, 1 Bland, 569 ; S. c. 11 G. & J. 37 ; McNeal v. 
 Glenn, 4 Md. 87 ; s. c. 3 Md. Ch. 349 ; Jackson v. Mather, 7 Cow. 301 ; 
 Avery v. Street, 6 Watts, 247 ; Borland v. Walker, 7 Ala. 269 ; Starr v. 
 Starr, 1 Ohio, 321 ; Callan v. Statham, 23 How. 477 ; Gibbs v. Thompson, 
 7 Humph. 179 ; Roach v. Deering, 17 Miss. 316 ; King v. Moon, 42 Mo. 
 551; Halbert v. Grant, 4 Mon. 580 ; Yoder v. Standifbrd, 7 Mon. 478 ; 
 How v. Camp, Walker Ch. 427; Brown v. McDonald, 1 Hill Ch. 297 ; 
 Dick v. 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 ; 13 B. Mon. 32 ; 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. Wag- 
 goner, 14 Ark. 69 ; Stanton 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 ; Tenable v. Bank, 2 Pet. 107 ; Alexander v. Todd, 
 1 Bond, 175 ; Smith v. Hinson, 4 Heisk. 250 ; Willingham v. Smith, 48 
 Geo. 580 ; Hart v. Flinn, 36 Iowa, 366 ; Johnson v. Lovelace, 51 Geo. 18 ; 
 Hamilton v. Blackwell, 60 Ala. 545. 
 
 5 Duvall v. Waters, 1 Bland, 569 ; s. c. 11 G. & J. 37; Callan v. Stat- 
 ham, 23 How. 477 ; Bobb v. Woodward, 50 Mo. 95 ; Smith v. Hinson, 4 
 Heisk. 250; Jones v. King, 86 111. 225. 
 
 8 Sands v. Hildreth, 14 Johns, 493 ; S. c. 2 Johns. Ch. 35 ; Lee v. 
 Hunter, 1 Paige, 519 ; Lewis v. Love, 2 B. Mon. 345 ; Wisner v. Farn- 
 ham, 2 Mich. 472 ; Walcott v. Almy, 6 McLean, 23 ; How v. Camp, 
 Walker Ch. 427 ; Schaferman v. O'Brien, 28 Md. 565; Bobb v. Wood- 
 ward. 50 Mo. 95 ; Swift v. Lee, 65 111. 336 ; Ames v. Gilmore, 59 Mo. 537 ; 
 Power v. Alston, 93 111. 587. 
 
 4 Duvall v. Waters, 1 Bland, 569 ; S. c. 11 G. & J. 37 ; Callan v. Strat- 
 ham, 23 How. 477. 6 Schaferman v. O'Brien, 2« Md. 565. 
 
 6 Alexander v. Todd, 1 Bond, 175 ; Smith v. Hinson, 4 Heisk. 250; 
 Second Natl. Bank v. Gratman, 53 Md. 443. 
 
50 BADGES OF FRAUD. 
 
 under a power of attorney from the grantee, 1 or selling 
 timber, 2 or digging coal, 3 or paying ground rent, 4 or paying 
 taxes, 5 or making improvements, 6 or driving the grantee 
 off the land. 7 The grantee may make a bona fide lease 
 to the debtor, 8 but any act which is out of the usual course 
 in the transaction, such as a nominal rent, 9 or the non- 
 enforcement of payment of the rent, 10 or an excessive rent, 11 
 or any indefiniteness in the character, terms or length of the 
 tenancy, 12 is a mark of fraud. Executing a mortgage to 
 secure the grantor's debts, 13 or selling a part of the property 
 to pay them, 14 or making a reconveyance of part for a 
 nominal consideration, 15 or taking no steps for a long time 
 to foreclose a pretended mortgage, 16 or selling to the deb- 
 
 1 Starr v. Starr, 1 Ohio, 321 ; Gibbs v. Thompson, 7 Humph. 179 ; 
 Stanton v. Green, 34 Miss. 576 ; Glenn v. Glenn, 17 Iowa, 498. 
 
 2 Duvall v. Waters, 1 Bland, 569 ; s. c. 11 G. & J. 37. 
 
 8 Alexander v. Todd, 1 Bond, 175. 
 
 4 Schaferman v. O'Brien, 28 Md. 565. 
 
 6 Stanton v. Green, 34 Miss. 576 ; Knox v. Hunt, 34 Miss. 655 ; Jacks 
 v. Tunno, 3 Dessau. 1 ; Sands v. Codwise, 4 Johns. 536 ; Haskell v. Bake- 
 well, 10 B. Mon. 106 ; Hutchinson v. Kelly, 1 Bob. 123 ; Bobb. v. Wood- 
 ward, 50 Mo. 95 ; Jones v. King, 86 111. 225. 
 
 6 Sands v. Hildreth, 14 Johns. 493 ; s. c. 2 Johns. Ch. 35 ; Merry v. 
 Bostwick, 13 111. 398 ; Marshall v. Green, 24 Ark. 410 ; Gibbs v. Thomp- 
 son, 7 Humph. 179; Tappan v. Butler, 7 Bosw. 480; Jones v. King, 86 
 111. 225. 
 
 ' Duvall v. Waters, 1 Bland, 569; s. C. 11 G. & J. 37. 
 
 » Glenn v. 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, 29 111. 
 444. 
 
 9 Yoder v. Standiford, 7 Mon. 478; Durkee v. Mahoney, 1 Aik. 116 ; 
 Bank v. Fink, 7 Paige, 87; Gibbs v. Thompson, 7 Humph. 179. 
 
 10 Bank v. Fink, 7 Paige, 87 ; Reed v. Blades, 5 Taunt. 212. 
 " Hitchcock v. St. John, Hoff. Ch. 511. 
 
 " Dick v. Grissom, 1 Freem. Ch. (Miss.) 428. 
 
 " Schaferman v. O'Brien, 28 Md. 565 ; Bank of U. S. v. Housman, 6 
 Paige, 526 ; Jacks v. Tuno, 3 Dessau. 1 ; Hudgins v. Kemp, 20 How. 45. 
 " Alexandei v. Todd, 1 Bond, 175. 
 " Gibbs v. Thompson, 7 Humph. 179. 
 " Gibbs v. Thompson, 7 Humph. 179. 
 
BADGES OF FRAUD. 51 
 
 tor's son, 1 or permitting the grantor to retain possession for 
 a long time, 3 is a badge of fraud. 
 
 Out of the usual Course. — Anything out of the 
 usual course of business is a sign of fraud. 3 Unusual 
 clauses in an instrument excite suspicion. Clamulce in- 
 consuetoe semper inducunt suspicionem.* The same prin- 
 ciple applies to a sale out of the usual course of business, 5 
 to the absence of accounts between the parties, when the 
 transfer purports to be in consideration of a debt due to 
 the grantee, 6 or when the debtor professes to act as agent 
 for the grantee, 7 to the absence of receipts upon the pay- 
 ment of money, 8 to the execution of a deed in the absence 
 of the grantee, 9 to the retention of the deed 10 or the mort- 
 gage note u by the debtor, to the retention of the evidence 
 of the debt by the creditor, when the transfer purports to 
 
 1 Phettiplace v. Sayles, 4 Mason, 312. 
 
 8 Mcintosh v. Bethune, 8 Ired. 139 ; Bank v. Pink, 7 Paige, 87 ; Swift 
 v. Lee, 65 111. 336. 
 
 8 Danjean v. Blacketer, 13 La. An. 595. 
 
 4 Twyne's Case, 3 Co. 80 ; Moore 638 ; Harrison v. Campbell, 6 Dana, 
 263; Langford v. Fly, 7 Humph. 585. 
 
 6 Peirce v. Merritt, 70 Mo. 275.. 
 
 6 McDowell v. Goldsmith, 6 Md.319; s. C.2Md.Ch. 370; 24Md.214; 
 Williams v. Cheeseborough, 4 Conn. 356 ; Enders v. Swayne, 8 Dana, 103 ; 
 Basey v. Daniel, 1 Smith, 252; Wheelden v. Wilson, 44 Me. 1 ; Haney v. 
 Nugent, 13 Wis. 283 ; Dick v. Grissom, 1 Freem. Ch. (Miss.) 428 ; Hyde v. 
 Sontag, 1 Saw. 249 ; Shepherd v. Hill, 6 Lans. 387 ; Partridge v. Stokes, 
 44 How. Pr. 381 ; 66 Barb. 586 ; Hubbard v. Allen, 59 Ala. 283. 
 
 I Alexander v. Todd, 1 Bond, 175. 
 
 8 Alexander v. Todd, 1 Bond, 175; Brinks v. Heise, 84 Penn. 246; 
 Campbell v. Bowles, 30 Gratt. 652 ; Hamilton v. Blackwell, 60 Ala. 545. 
 
 9 Enders v. Swayne, 8 Dana, 103; Swift v. Lee, 65 111. 336; McLean v. 
 Lafayette Bank, 3 McLean, 587 ; Leadman v. Han-is, 3 Dey. 144. 
 
 10 Hungerford v. Earle, 2 Vern. 261 ; Tarback v. Marbury, 2 Vera. 510; 
 Starr v. Starr, 1 Ohio, 321. 
 
 II Bullock v. Narrow, 49 111. 62. 
 
52 BADGES OF FRAUD. 
 
 be in consideration of the debt, 1 to the omission to execute 
 the mortgage note at the same time with the mortgage, 2 
 to any alteration of a mortgage 3 note, to the alienation of 
 valuable property without payment or security, 4 to a 
 transfer in consideration of a worthless note, 5 to the pur- 
 chase of property for which the grantee has no use, 6 to 
 the grantee's entrance into a business foreign to his own, 7 
 to the grantee's pecuniary inability to make the purchase, 8 
 to the grantee's failure to pay taxes, 9 to the execution of 
 a power of attorney by grantee to grantor, 10 to an immedi- 
 ate transfer to the debtor's wife, 11 to an immediate transfer 
 to another, in consideration of property conveyed to the 
 
 I Gardner v. Broussard, 39 Tex. 372. 
 
 - Prior v. White, 12 111. 261. - Merrill v. Williamson, 35 111. 529. 
 
 "Duvall v. Waters, 1 Bland, 569 ; s. 0. 11 G. & J. 37 ; Hendricks v. 
 Eobinson, 2 Johns. Ch. 283 ; s. c. 17 Johns. 438 ; Pope v. Andrews, 1 S. 
 & M. Ch. 135 ; Smead v. Williamson, 16 B. Mon. 492 ; Owen v. Arvis, 26 
 'N. J. 22 ; Seymour v. Lewis, 13 N. J. Eq. 439 ; Glenn v. Glenn, 17 Iowa, 
 498 ; Hinton v. Curtis, 1 Pitts. L. J. 198 ; Alexander v. Todd, 1 Bond, 
 175 ; Campbell v. Landberg, 27 Minn. 454. 
 
 5 Buswell v. Lincke, 8 Daly, 518. 
 
 6 Grubbs v. Greer, 5 Cold, 160. 
 
 ' Boies v. Henney, 32 111. 130 ; Buswell v. Lincke, 8 Daly, 518 
 
 8 Sands v. Codwise, 4 Johns. 536 ; Railroad Co. v. Kyle, 5 Bosw. 587 ; 
 Jessup v. Johnston, 3 Jones (N.C.) 335 ; Overton v. Morris, 3 Port. 249 ; 
 Bredin v. Bredin, 3 Penn. 81 ; Pope v. Andrews, 1 S. & M. Ch. 135 ; En- 
 ders v. Swayne, 8 Dana, 103 ; Venable v. Bank, 2 Pet. 107 ; Mcllvoy 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 v. Wil- 
 liamson, 16 B. Mon. 492 ; Owen v. Arvis, 26 N. J. 22 ; Famsworth v. 
 Bell, 5 Sneed, 531 ; Seymour v. Lewis, 13 N. J. Eq. 439 ; Glenn v. 
 Glenn, 17 Iowa, 498 ; James v. Johnston, 22 La. An. 195 ; Graham v. 
 Smith, 25 Penn. 323 ; Andrews v. Jones, 10 Ala. 400 ; Parrish v. Dan- 
 ford, 1 Bond, 345 ; McCutchen v. Peigne, 4 Heisk. 565 ; Dunlap v. Hay- 
 nes, 4 Heisk. 476 ; Swift v. Lee, 65 111. 336. 
 
 9 Bulkley v. Buffington, 5 McLean, 457 ; Judge v. Vogle, 38 Mich. 569. 
 
 10 English v. King, 10 Heisk. 666. . 
 
 II McCullock v. Doak, 68 1ST. C. 267. 
 
BADGES OF FRAUD. 53 
 
 debtor's wife, 1 to the absence of pressure by a preferred 
 creditor, 3 to the absence of competition at a public sale, 3 
 to the vendee's declaration that he is purchasing for the 
 debtor, 4 to the confession of a judgment and the issuing 
 of an execution on the same day, 8 to the grantor's conceal- 
 ment of property, 6 or flight, 7 to an indemnity for sureties 
 whose liabilities are remote and depend upon a contin- 
 gency, 8 to inconsistent statements, 9 and to other fraudulent 
 transactions between the same parties. 30 The delivery of 
 the deed by the debtor to the recorder is not a mark of 
 fraud." A written transfer of personal property is merely 
 a suspicious circumstance. 12 If the grantee has been the 
 attorney of the grantor, and substantially knows the con- 
 dition of the title, it is no badge of fraud to omit to make 
 an examination. 13 
 
 '■ Newman v. Cordell, 43 Barb. 448. 
 
 5 Eveleigh v. Purrsford, 2 Mood. & Rob. 539 ; Leadman v. Harris, 3 
 Dev. 144 ; Kennedy v. Ross, 2 Mills Const. (S. C.) 125. 
 
 3 Tavenner v. Robinson, 2 Rob. 280. 
 4 Tavenner v. Robinson, 2 Rob. 280. 
 
 6 Floyd v. Goodwin, 8 Yerg. 484. 
 
 6 Avery v. Street, 6 Watts, 247 ; Comstock v. Rayford, 20 Miss. 369 ; 
 s. c. 9 Miss. 423 ; Danby v. Sharp, 2 McArthur, 435 ; Summers v. How- 
 land, 2 Baxter, 407 ; Hillsman v. Blaekwell, 10 Heisk. 480 ; English v. 
 King, 10 Heisk. 666 ; Stevens v. Dillman, 86 111. 233 ; Embry v. Klemm, 
 30 N. J. Eq. 517. 
 
 'Rogers v. Hall, 4 Watts, 359; Wright v. Hancock, 3 Munf. 521; 
 Fougeres v. Zacharie, 5 J. J. Marsh, 504 ; Kittering v. Parker, 8 Ind. 44 ; 
 Danjean v. Blacketer, 13 La. An. 595. 
 
 8 Harney v. Pack, 12 Miss. 229. 
 
 "Dalton v. Mitchell, 4 J. J. Marsh, 372 ; Eougeres v. Zacharie, 5 J. J. 
 Marsh, 504; Marshall v. Green, 24 Ark. 410; vide Kane v. Drake, 27 
 Ind. 29. 
 
 10 Bumpas v. Dotson, 7 Humph. 310. 
 
 11 Ward v. Wehman, 27 Iowa, 279. 
 
 12 Forsythe v. Matthews, 14 Penn. 100; McQuinnay v. Hitchcock, 8 
 Tex. 33 ; Kane v. Drake, 27 Ind. 29 ; Mattingly v. Walke, 2 Bradw. 169. 
 
 18 Jenkins v. Einstein, 3 Biss. 128. 
 
54 BADGES OF FRAUD. 
 
 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, 1 the pains taken to invite wit- 
 nesses to see the sale made, and the bantering and nego- 
 tiation about the price, 2 cautioning them to pay atten- 
 tion and recollect what they hear, 3 telling them that the 
 transaction is fair, 4 a parade of payment in the presence 
 of witnesses, 5 are signs of fraud, for when a part is over- 
 acted the delusion is broken and the fiction appears. 
 
 Absence of Evidence. — The omission of the grantee 6 
 to testify, or to produce the debtor 7 or any other impor- 
 tant witness, 8 or any important paper, 9 is the ground for an 
 unfavorable presumption, and frequently exercises an im- 
 portant influence upon the final determination of the ques- 
 tion of fraud. 
 
 1 Hartshorne v. Eames, 31 Me. 93. 
 
 2 Goldsbury v. May, 1 Litt. 254; vide Crawford v. Kirksey, 55 Ala. 282. 
 
 3 Adams v. Davidson, 10 N. Y. 309. 
 
 4 Comstock v. Rayford, 20 Miss. 369 ; s. c. 9 Miss. 423. 
 
 6 King v. Moon, 42 Mo. 551 ; Dorn v. Bayer, 16 Md. 144 ; Venable v. 
 Bank, 2 Pet. 107 ; Dunlap v. Haynes, 4 Heisk. 476 ; Pickett v. Pipkin, 64 
 Ala. 920. 
 
 6 Graham v. Furber, 78 E. C. L. 410 ; s. c. 14 C. B. 410 ; Glenn v. 
 Glenn, 17 Iowa, 498 ; Newman v. Cordell, 43 Barb. 448 ; Devries v. 
 Phillips, 63 N. C. 53; In re Hussman, 2 N. B. E. 437; Dunlap v. 
 Haynes, 4 Heisk. 476 ; Henderson v. Henderson, 55 Mo. 534 ; Second 
 Natl. Bank v. Yeatman, 53 Md. 443. 
 
 'Hale v. Saloon Omnibus Co. 4 Drew, 492; s. C. 28 L. J. Ch. 777; 
 Blaisdell v. Cowell, 14 Me. 370 ; Glenn v. Glenn, 17 Iowa, 498 ; Peebles 
 v. Horton, 64 N. C. 374 ; In re Hussman, 2 N. B. E. 437 ; Dunlap v. 
 Haynes, 4 Heisk. 476 ; Henderson v. Henderson, 55 Mo. 534 ; Boche v. 
 Hassard, 5 Ir. Ch. 14 ; Goshorn v. Snodgrass, 17 W. Va. 717. 
 
 8 Cox v. Shropshire, 25 Tex. 113 ; Newman v. Cordell, 43 Barb. 448 ; 
 Peebles v. Horton, 64 N. C. 374 ; Smith v. Brown, 34 Mich. 455 ; Har- 
 rell v. Mitchell, 61 Ala. 270. 
 
 9 Nicol v. Crittenden, 55 Geo. 497. 
 
BADGES OF FRAUD. 55 
 
 Proof of Payment of Consideration. — The grantee 
 need not prove the payment of the consideration' until the 
 fraudulent intent of the grantor is shown, 1 but when that 
 is shown, it is incumbent on him to establish the payment 
 by competent evidence, for the proof is almost exclusively 
 within his knowledge and power. 2 He can not be alto- 
 gether relieved from this duty, although he is illiterate. 3 
 The facility with which a fictitious payment may be fabri- 
 cated renders it necessary for him to produce all the proof 
 which may reasonably be supposed to be in his power of the 
 reality and fairness of the transaction, 4 and the want of clear 
 proof is evidence of fraud. 5 Such proof is vital to uphold 
 a transfer in other respects surrounded with suspicion, 6 and 
 this requirement is not met by the mere production of notes 
 and receipts, 7 or the mere proof of payment without any 
 attempt to show where the money came from, 8 how it was 
 
 1 King v. Russell, 40 Tex. 124. 
 
 ° Venable v. Bank, 2 Pet. 107; Callan v. Statham, 23 How. 477; 
 Brandt v. Stevenson, 3 Phila. 205. 
 
 Cartridge v. Stokes, 44 How. Pr. 381 ; 66 Barb. 586. 
 
 4 Hunt v. Blodgett, 17 111. 583; Vandall'v. Vandall, 13 Iowa, 247; 
 Godfrey v. Germain, 24 Wis. 410. 
 
 6 Duvall v. Waters, 1 Bl. 569 ; s. c. 11 G. & J. 37 ; Dorn v. Bayer, 16 
 Md. 144 ; Schaferman v. O'Brien, 28 Md. 565 ; Callan v. Statham, 23 How. 
 477; Robbins v. Parker, 44 Mass. 117 ; Sands v. Hildreth, 14 Johns. 493 ; 
 S. c. 2 Johns. Ch. 35 ; Brady v. Briscoe, 2 J. J. Marsh. 212 ; Harrison v. 
 Campbell 6 Dana, 263 ; Purkitt v. Polack, 17 Cal. 327 ; Allen v. Bon- 
 nett, L. R. 5 Ch. 577 ; Enders v. Swayne, 8 Dana, 103 ; Venable v. 
 Bank, 2 Pet. 107 ; Jones v. Read, 3 Dana, 540 ; Partridge v. Stokes, 44 
 How. Pr. 381 ; 66 Barb. 586 ; Draper v. Draper, 68 111. 17. 
 
 6 Callan v. Statham, 23 How. 477 ; Gibbs v. Thompson, 7 Humph. 
 179 ; King v. Moon, 42 Mo. 551 ; Humphries v. Wilson, 2 Del. Ch. 331. 
 
 ' Fulmore v. Burrows, 2 Rich. Eq. 95 ; Booker v. Worrell, 57 Geo. 235. 
 
 8 King v. Moon, 42 Mo. 551 ; Venable v. Bank, 2 Pet. 107 ; Partridge 
 v. Stokes, 44 How. Pr. 381 ; 66 Barb. 586 ; Hoxie v. Price, 31 Wis. 82 
 Henderson v. Henderson, 55 Mo. 534; Alexander v. Todd, 1 Bond, 175 
 Miller v. Sauerbier, 30 N. J. Eq. 71 ; Harrell v. Initrell, 61 Ala. 270 
 Carney v. Carney, 7 Baxter, 284. 
 
56 BADGES OF FRAUD. 
 
 obtained or whose it was, 1 or what was done with it. 2 
 Want of 'preciseness as to dates, time and amount 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 transfer is recent, should be clear, accurate and specific. 3 
 
 Relationship. — Relationship is not a badge of fraud. 4 
 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 senti- 
 ments 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 prin- 
 ciple 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 transac- 
 tion. 5 The doctrine applies to the relationship of father, 6 
 
 1 Jackson v. Mather, 7 Cow. 301 ; King v. Moon, 42 Mo. 551. 
 
 2 King v. Moon, 42 Mo. 551 ; Alexander v. Todd, 1 Bond, 175. 
 
 3 Newman v. Cordell, 43 Barb. 448; Hyde v. Sontag, 1 Saw. 249 ; 
 Smith v. Brown, 34 Mich. 455. 
 
 "Copis v. Middleton, 2 Madd. 410; Merrill v. Locke, 41 N. H. 486; 
 Sterling v. Ripley, 3 Chand. 166 ; Wrightman v. Hart, 37 111. 123 ; Dun- 
 lap v. Bournonville, 26 Penn. 72 ; Bumpas v. Dotson, 7 Humph. 310 ; 
 Wilson v. Lott, 5 Pla. 305 ; Montgomery v. Kirksey, 26 Ala. 172 ; 
 Kane v. Drake, 27 Ind. 29 ; Hempstead v. Johnston, 18 Ark. 123 ; King 
 v. Russell, 40 Tex. 124; Shearon v. Henderson, 38 Tex. 245. 
 
 - Brady v. Briscoe, 2 J. J. Marsh. 212 ; Wilson v. Lott, 5 Fla. 305 ; 
 Montgomery v. Kirksey, 26 Ala. 172 ; Hanford v. Artcher, 4 Hill, 271 ; 
 S. c. 1 Hill, 347 ; Bumpas v. Dotson, 7 Humph. 310 ; Reiger v. Davis, 67 
 K. C. 185 ; Marshall v. Croom, 60 Ala. 121 ; Harrell v. Mitchell, 61 Ala. 
 270 ; Sherman v. Hogland, 73 Ind. 472. 
 
 6 Hartshorn v. Eaines, 31 Me. 93 ; Mcintosh v. Bethune, 8 Ired. 139 ; 
 Poague v. Boyce, 6 J. J. Marsh. 70 ; Wheelden v. Wilson, 44 Me. 1 ; 
 
BADGES OF FRAUD. 57 
 
 mother, 1 father-in-law, 2 mother-in-law, 3 stepfather, 4 uncle, 5 
 brother, 6 sister, 7 brother-in-law, 8 sister-in-law, 9 wife, 10 hus- 
 
 Vandall v. Vandall, 13 Iowa, 247 ; Weaver v. Wright, 13 Ruh. 9 ; Slat- 
 tery v. Stewart, 45 111. 293; Forsyth v. Matthews, 14 Penn. 100; Scriv- 
 enor v. Scrivenor, 7 B. Mon. 374; Walter v. McNabb, 1 Heisk. 703; Hin- 
 ton v. Curtis, 1 Pitts. L. J. 198 ; Farmer v. Calvert, 44 Ind. 209. 
 
 'Lloyd v. Williams, 21 Penn. 327 ; Splawn v. Martin, 17 Ark. 146; 
 Gardinier v. Otis, 13 Wis. 460 ; Coley v. Coley, 14 N. J. Eq. 350 ; Sporrer 
 v. Eifler, 1 Heisk. 633 ; Scott v. Winship, 20 Geo. 429. 
 
 8 Borland v. Walker, 7 Ala. 269 ; Bailroad Co. v. Kyle, 5 Bosw. 587; 
 Bozman v. Draughan, 3 Stew. 243 ; Seymour v. Lewis, 16 N. J. Eq. 439 ; 
 Wilson v. Horr, 15 Iowa, 489; Crawford v. Carper, 4 W. Va. 56 ; Plant- 
 ers' Bank v. Walker, 7 Ala. 926 ; Gordon v. Lowell, 21 Me. 251 ; Borland 
 v. Mayo, 8 Ala. 104; Ryan v. Mullinix, 45 Iowa, 631 ; Embry v. Klemm, 
 30 N. J. Eq. 517. 
 
 8 Harrison v. Campbell, 6 Dana, 263 ; Watson v. Kennedy, 3 Strobh 
 Eq. 1 ; Wilson v. Lott, 3 Fla. 305. 4 Ames v. Gilmore, 59 Mo. 537 
 
 6 Felton v. White, 4 Jones (N. C.) 301 ; Wightman v. Hart, 37 111. 123 
 Demarest v. Terhune, 18 N. J. Eq. 45 ; Waterman v. Donalson, 43 111. 29 
 
 6 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, 19 N. J. Eq. 105 ; s. o. 21 N. J. Eq. 364 ; Redfield 
 Manf. Co. v. Dysert, 62 Penn. 62 ; Dewey v. Littlejohn, 2 Ired. Eq. 495 
 Hawkins v. Allston, 4 Ir. Eq. 137 ; Bredin v. Bredin, 3 Penn. 81 ; Mil- 
 lett v. Pottinger, 4 Met. (Ky.) 213 ; Smit v. People, 15 Mich. 497 ; Fos- 
 ter v. Grigsby, 1 Bush, 86; Pope v. Andrews, 1 S. & M. Ch. 135 ; Enders 
 v. Swayne, 8 Dana, 103 ; How. v. Camp, Walker Ch. 427 ; Nesbit v. 
 Digby, 13 111. 387 ; English v. King, 10 Heisk. 666 ; Schmidt v. Opie, 33 
 ST. J. Eq. 138 ; Weisner v. Farnham, 2 Mich. 472 ; Johnston v. Dick, 27 
 Miss. 277 ; Craver v. Miller, 65 Penn. 456 ; Reed v. Carl, 11 Miss. 74 ; 
 Steele v. Parsons, 9 Mo. 823 ; James v. Johnson, 22 La. An. 195 ; Hecht 
 v. Koegel, 25 7$. J. Eq. 135 ; Metropolitan Bank v. Durant, 22 N. J. 
 Eq. 35 ; Chase v. Welsh, 45 Mich. 345. 
 
 'McRea v. Branch Bank, 19 How. 376; Kaine v. Weigley, 22 Penn. 
 179; Copenheaver v. Huffacker, 6 B. Mon. 18 ; Sayre v. Fredericks, 16 
 N. J. Eq. 205 ; Sporrer v. Eifler, 1 Heisk. 633. 
 
 8 Schaferman v. O'Brien, 28 Md. 565 ; Merrill v. Locke, 41 N. H. 486 ; 
 Jackson v. Brush, 20 Johns. 5 ; Copenheaver v. Huffacker, 6 B. Mon. 18 ; 
 Tubb v. Williams, 7 Humph. 367 ; Farmers' Bank v. Douglass, 19 Miss. 
 469 ; Burtus v. Tisdall, 4 Barb. 571 ; Satterwhite v. Hicks, Busbee, 105 ; 
 Planters' Bank v. Walker, 7 Ala. 926 ; Wilson v. Butler, 3 Munf. 559 ; 
 Dal ton v. Mitchell, 4 J. J. Marsh. 372 ; Venable v. Bank, 2 Pet. 107 ; Kaine 
 v. Weigley, 22 Penn. 179 ; Steele v. Ward, 25 Iowa, 535 ; Steere v. Hoag- 
 land, 39 111. 264; Gibbs v. Thompson, 7 Humph. 179 ; Barrow v. Bailey, 
 
58 BADGES OF FRAUD. 
 
 band, 1 son, 2 daughter, 3 son-in-law, 4 cousin, 5 nephew, 6 step- 
 
 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, 16 N. J. Eq. 205 ; Smith v. Duncan, 2 Pitts. L. J. 
 186 ; Alexander v. Todd, 1 Bond, 175 ; Harkins v. Bailey, 48 Ala. 376 ; 
 Swift v. Lee, 65 111. 336 ; Crawford v. Kirksey, 50 Ala. 591 ; Goshorn v. 
 Snodgrass, 17 W. Va. 717. 
 
 'Smith v. Henry, 2 Bailey, 118; s. c. 1 Hill, 16; Young v. Stallings, 
 5 B. Mon. 307 ; Walcott v. Almy, 6 McLean, 23. 
 10 Clarke v. McGeihan, 25 N. J. Eq. 423. 
 
 1 Tyberant v. Raucke, 96 111. 71. 
 
 2 Duvall v. Waters, 1 Bland, 569 ; s. o. 11 G. & J. 37 ; Farnsworth v. 
 Bell, 5 Sneed, 531 ; Gibson v. Hill, 23 Tex. 77 ; Glenn v. Glenn, 17 Iowa, 
 498 ; Trimble v. Ratcliff, 9 B. Mon. 511 ; S. 0. 12 B. Mon. 32 ; Ringgold v. 
 Waggoner, 14 Ark. 69 ; Law v. Smith, 4 Ind. 56 ; Jones v. Bead, 3 Dana, 
 540 ; 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. (Mss.) 
 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. Johnson, 3 Jones (N. C.) 335 ; 
 Carter v. Carpenter, 7 Bush, 257 ; Tripp v. Childs, 14 Barb. 85 ; Lewis v. 
 Love, 2 B. Mon. 345 ; Jackson v. Spivey, 63 N. C. 261; Chappel v. Clapp, 
 29 Iowa, 161 ; Shearon v. Henderson, 38 Tex. 245 ; Dunlap v. Haynes, 4 
 Heisk. 476 ; Herkelrath v. Stookey, 63 111. 486 ; King v. Russell, 40 Tex. 
 124 ; Jaflers v. Aneals, 91 111. 487 ; Knowlton v. Hawes, 10 Neb. 534 ; 
 Fleming v. Hiob, 3 Bradw. 390 ; King v. Hubbell, 42 Mich. 597 ; Hobo- 
 ken Bank v. Beekman, 33 N. J. Eq. 58 ; Horn v. Wiatt, 60 Ala. 297 ; 
 Marshall v. Croom, 60 Ala. 121 ; Stevens v. Dillman, 86 111. 233 ; Barn- 
 ard v. Davis, 54 Ala. 565 ; Massie v. Engart, 32 Ark. 251 ; Hillsman v. 
 Blackwell, 10 Heisk. 480; Fleischer v. Dignon, 53 Iowa, 288. 
 
 s Foster v. Woodfln, 11 Ired. 339; Haney v. Nugent, 13 Wis. 283; 
 Marshall v. Green, 24 Ark. 410 ; Parsons v. McKnight, 8 N. H. 35 ; 
 O'Connor v. Bernard, 2 Jo. 654 ; Clairborne v. Goss, 7 Leigh, 331 ; Hart 
 v. Flinn, 36 Iowa, 366 ; Hubbard v. Allen, 59 Ala. 283 ; Marshall v. 
 Croom, 60 Ala. 121. 
 
 "Duvall v. Waters, 1 Bland, 569-; s. c. 11 G. & J. 37; Black v. Cad- 
 well, 4 Jones (N. C.) 150 ; Rollins v. Mooers, 25 Me. 192 ; Garland v. 
 Rives, 4 Rand. 282 ; Merry v. Bostwick, 13 111. 398 ; Hook v. Mowre, 17 
 Iowa, 195 ; Jackson v. Mather, 7 Cow. 301 ; Tompkins v. Nichols, 53 
 Ala. 199 ; Bell v. Devere, 96 111. 217. 
 
 " Blodgett v. Chaplin, 48 Me. 322 ; Nelson v. Smith, 28 111. 495. 
 
 6 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. 
 
BADGES OF FRAUD. 59 
 
 son, 1 grandson, 2 partners, 3 and confidential friend, 4 or 
 agent. 5 Wherever this confidential relation is shown to 
 exist, the parties are held to a fuller and stricter proof of 
 the consideration, 6 and of the fairness of the transaction. 7 
 
 Delay. — Mortgages and deeds of trust encumber the 
 property which they cover, and thus in many instances 
 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 hinder- 
 ance 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 complaint 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 cestui que trust 
 or mortgagee, as the case may be, desires to take posses- 
 
 1 Marlow v. Orgill, 8 Jur. (N. S.) 829. 
 
 a Smith v. Daniel, 1 Smith, 252 ; Basye v. Daniel, 1 Ind. 378. 
 
 'Thompson v. Drake, 3 B. Mon. 565 ; Strong v. Hines, 35 Miss. 201. 
 
 4 Gibbs v. Thompson, 7 Humph. 179 ; Yoder v. Standiford, 7 Mon. 
 478 ; Wells v. Thomas, l(£Mo. 237 ; Paxton v. Boyce, 1 Tex. 317. 
 
 'Clark v. French, 23 Me. 221; Cooke v. Smith, 3 Sandf. Ch. 333; 
 Smead v. Williamson, 16 B. Mon. 492 ; Kinder v. Macy, 7 Cal. 206 ; Stan- 
 ton v. Green, 34 Miss. 576; Bridge v. Loeschigk, 42 N. Y. 421 ; 42 Barb. 
 171 ; Danby v. Sharp, 2 Me. Arthur, 435. 
 
 6 Dick v. Grissom, 1 Freem. -Ch. (Miss.) 428 ; Hawkins v. Allston, 4 
 Ired. Eq. 137 ; Satterwhite v. Hicks, Busbee, 105 ; Brady v. Briscoe, 2 J. J. 
 Marsh. 212 ; Brice v. Meyers, 5 Ohio, 121. 
 
 ' Jenkins v. Pearce, 1 Jones (S. C.) 413 ; Black v. Cadwell, 4 Jones 
 (N. C.) 150 ; Bowman v. Houdlette, 18 Me. 245 ; Lloyd v. Williams, 21 
 Penn. 327. 
 
60 BADGES OF FRAUD. 
 
 siori or requests that the property shall be sold. 1 The 
 instrument may even contain a stipulation that the debtor 
 may remain in possession for a certain period, unless an 
 execution shall in the mean time be issued against him. 2 
 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. 3 A pro- 
 vision that the property shall be sold before the time 
 stipulated for a sale, if the grantor desires it, does not 
 render the deed void. 4 If the debtor does not retain the 
 possession of the property, a delay of three years may be 
 allowed. 5 Mere delay in enforcing a mortgage or deed of 
 trust is simply a circumstance to be taken into considera- 
 tion, 6 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. 
 
 'Dubose v. Dubose, 7 Ala. 235 ; Brock v. Headon, 13 Ala. 370 ; Mar- 
 riott v. Givens, 8 Ala. 694. 
 
 2 Alton v. Harrison, L. E. 4 Ch. Ap. 622; Lee v. Flannagan, 7 Ired. 
 471 ; 'Prior v. White, 12 111. 261 ; Frost v. Mott, 34 N. Y. 253. 
 
 8 Brock v. Headon, 13 Ala. 370 ; Burgin v. Burgin, 1 Ired. 453 ; Walt- 
 hall v. Rives, 34 Ala. 91 ; Tarver v. Bofl'e, 7 Ala. 873 ; Sipe v. Earman, 
 26 Gratt. 563. . 4 Sipe v. Earman, 26 Gratt. 563. 
 
 6 Starke v. Etheridge, 71 N". C. 240. 
 
 6 Gait v. Dibrell, 10 Yerg. 146 ; Davis v. Evans, 5 Ired. 525 ; Ely v. 
 Carnley, 3 E. D. Smith, 489 ; Harshaw v. Woodfln, 64 N. C. 568 ; Lee v. 
 Elannagan, 7 Ired. 471 ; Hardy v. Skinner, 9 Ired. 171 ; Burgin v. 
 Burgin, 1 Ired. 453; Dewey v. Littlejohn, 2 Ired. Eq. 495; Feurt v. 
 Bo well, 62 Mo. 524. 
 
CHAPTER V. 
 
 POSSESSION. 
 
 Preliminary Remarks. — The history of the law re- 
 specting the rights of creditors in relation to the property 
 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, on one side, 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 par- 
 ticular cases, where the innocent and even benevolent 
 intention of the party was manifest, and the legal pre- 
 sumption of fraud appeared inequitable, oppressive, con- 
 trary 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 dis- 
 tress 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 special 
 circumstances Of various kinds, more or less definitely 
 defined, and eventually the rule itself was abrogated in 
 
62 POSSESSION. 
 
 many States. 1 A point which has been so extensively 
 
 1 Stoddard v. Butler, 20 Wend. 507 ; 7 Paige 163, per Senator Ver- 
 planck. In a note to Bissel v. Hopkins, 3 Cow. 166, the number of the 
 exceptions is 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. 381). 2. Where the sale is conditional (per Coke, J., 
 in Stone v. Grubbam, 2 Bulstr. 217 ; 1 Bol. Rep. 3, and per Buller, J., in 
 Edwards v. Harben, 2 T. R. 587), i. e. in the last case a condition pre- 
 cedent to be performed by the vendee. 3. Where the goods remain with 
 the vendor to be sold for the benefit of the vendee, the vendor being a 
 borrower on bottomry (i. e. a mortgagor), the trust being declared by the 
 deed (Bucknal v. Roiston, Prec. Ch. 285). 4. Where A. purchases the 
 goods on a fi. fa. and leaves them with the judgment-debtor, to the 
 intent that he pay for and redeem them (Cole v. Davies, 1 Ld. Raym. 
 724). 5. Where the goods purchased in this manner are left from 
 benevolence or for a temporary and honest purpose (Kidd v. Rawlinson, 
 2 B. & P. 59 ; 3 Esp. 52). 6. Where money is lent to buy furniture, and 
 a bill of sale honestly taken to secure the repayment of the money 
 (Meggott v. Mills, 1 Ld. Raym. 286 ; 12 Mood. 159). 7. Where the pur- 
 chase 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, in notis ; 3 Doug. 415 ; Cadogan v. Kennett, 2 Cowp. 432). 
 
 9. Where a bill of sale is a mortgage (Barrow v. Paxton, 5 Johns. 258 ; 
 U. S. v. Hooe, 3 Cranch, 73). 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 cargo in a ship lying at a port where the 
 assignment is executed, but bound to a foreign port, the assignment pro- 
 viding 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 possession remained unchanged till Monday (Wilt 
 v. Franklin, 1 Binn. 502). 13. A purchase by a creditor in an execution 
 (Watkins v. Birch, 4 Taunt. 823). 14. A purchase under a landlord's 
 warrant of distress (Guthrie v. Wood, 1 Starkie, N. P. 367). 15. A ship 
 abroad may of course be sold and possession retained by the vendor till 
 her return (Putnam v. Dutch, 8 Mass. 287). 16. A bona fide 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 v. Smith 10 
 Mass. 308). 
 
POSSESSION. 63 
 
 litigated will be best understood by an examination, in 
 the first place, of the principles that are involved, and 
 then of the authorities. 
 
 Depends upon the Intent. — The question arises upon 
 the construction of a positive statute, and a true solution 
 cannot be attained without carefully considering the terms 
 of the act. The statute is directed, not against an incon- 
 sistent possession, but a fraudulent design, not against fair 
 and honest contracts, but conveyances made with the 
 intent to delay, hinder or defraud creditors. 1 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 present, the 
 conveyance is void ; if it is absent, the conveyance is 
 valid. All the circumstances that accompany a transac- 
 tion are valuable only as they throw light upon the 
 debtor's intent. 
 
 Vendor's Eight 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, 2 unless such act 
 necessarily and inevitably tends to deceive and defraud 
 creditors. The argument that the retention of possession 
 is fraud per se cannot rest upon the incompleteness of the 
 purchaser's title, for in sales of personal property actual 
 
 ■Davis v. Turner, 4 Gratt. 422; Hobbs v. Bibb, 2 Stew. 54; Bryant 
 v. Kclton, 1 Tex. 415. 
 
 8 Hanford v. Artcher, 4 Hill, 271 ; s. o. 1 Hill, 347. 
 
 5 
 
64 POSSESSION. 
 
 delivery is not necessary to the transmission of the title. 1 
 By the contract of sale and present payment of the price, 
 or an agreement to pay it thereafter, the purchaser 
 acquires the right of property, and may recover it by 
 action. Thus, if A. sells property to B. m prcesenti, and 
 receives payment therefor, or B.'s note 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 immediate 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. 2 
 
 Possession by Vendor is Badge of Fraud. — The want 
 of possession, 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 wearing 
 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, obtains 
 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. 3 As it is out of 
 
 1 Cole v. White, 26 Wend. 511 ; s. o. 24 Wend. 116. 
 
 2 Davis v. Turner, 4 Gratt. 422. 
 
 3 Ingles v. Donalson, 2 Hayw. 57 ; Ludlow v. Hurd, 19 Johns. 218. 
 
POSSESSION. 65 
 
 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 tend- 
 ency to deceive and defraud creditors, and, as the law 
 always holds that a person intends whatever is the natural 
 and probable consequence of his own acts, raises a pre- 
 sumption that the vendor intends to defraud his creditors. 1 
 
 Not Conclusive. — Although the retention of possession 
 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, 2 a gradual 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, 3 
 and it is now settled law that possession is only presump- 
 tive evidence of ownership. 4 The frequent necessity of 
 intrusting personal estate to others than the actual owner 
 — to clerks, domestics, factors, mechanics and borrowers- 
 forbids the adoption of the rule that possession shall 
 
 1 GMswold v. Sheldon, 4 N. Y.. 580. 
 
 2 37 Hen. VI, 30. 
 
 8 Jarman v. Wooloton, 3 T. E. 618 ; Haven v. Low, 2 N. H. 13. 
 4 And there was no occasion otherwise for the statute of King James, 
 Stat. 21 Jac. I, 19, ss. 10, 11 ; Arundell v. Phipps, 10 Ves. 139. 
 
66 POSSESSION. 
 
 always be deemed conclusive evidence of title. 1 But the 
 line of distinction between presumptive and conclusive 
 evidence of fraud is clearly drawn. If the inevitable con- 
 sequence of an act is to defraud creditors, then that act is 
 conclusive evidence of fraud. But if the tendency to 
 defraud is only a natural and probable and not an inevi- 
 table consequence of an act, then that act is only pre- 
 sumptive evidence of fraud. As possession is only pre- 
 sumptive evidence of title, the retention of possession has 
 only a probable tendency to deceive, and is therefore only 
 presumptive evidence of an intent to defraud. 
 
 Caveat Creditor. — In purchases of personal property 
 the rule caveat emptor applies, though the vendor may be 
 in possession, and it is no harsher to apply a similar rule 
 of caveat creditor. 2 Before giving credit he should dili- 
 gently inquire as to the title of the property in the pos- 
 session of the debtor. When he makes proper inquiry he 
 may ascertain that the naked fact of possession after a sale 
 is the only indication of fraud, and that even this indica- 
 tion 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, considering 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 
 
 1 Haven v. Low, 2 N". H. 13. 
 
 8 Haven v. Low, 2 N. H. 13 ; Davis v. Turner, 4 Gratt. 422; Sydnor 
 v. Gee, 4 Leigh, 535. 
 
POSSESSION. 67 
 
 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 busi- 
 ness. The length of time it is left or loaned, whether for 
 hours, months or years, would frequently much strengthen 
 or weaken any presumption of fraud. 1 It is, moreover, 
 vain to attempt 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 
 trammeled and embarrassed if the sole care were directed 
 to the protection of creditors who ought to protect them- 
 selves. 2 
 
 Rule of Evidence. — It can not be denied that the reten- 
 tion 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 imagination of fraud. 
 
 '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 transac- 
 tion, 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 equivalent to honesty and truth. If truth may become con- 
 structive falsehood, by the same rule falsehood may become constructive 
 truth. If the possession of personal chattels is or ought to be conclusive 
 evidence of ownership, it is also, or ought to be, conclusive evidence that 
 a person not in possession is not the owner. All, then, that remains for 
 the fraudulent debtor 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 process 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. 
 
68 POSSESSION. 
 
 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. 1 
 The rule that the retention of possession is a fraud per se 
 is accordingly conceded to be one of policy and not of evi- 
 dence, 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. 2 If the statute were ambig- 
 uous 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 considera- 
 tions. 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 imperative 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. 3 
 
 Ensnares Innocent Men. — The doctrine that the re- 
 tention of possession is a fraud per se has, however, been 
 
 . Davis v. Turner, 4 Gratt. 422. 
 
 2 Wilson v. Hooper, 12 Vt. 653 ; Kirtland v. Snow, 20 Conn. 23. 
 
 "Hanford v. Artoher, 4 Hill, 271 ; s. c. 1 Hill, 347. The difference 
 between policy as laid down by a legislature and policy as enforced by 
 courts is well illustrated 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. 60 
 
 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 deciding a case, the correct 
 decision of which depends on the good or evil intent of the 
 parties, one single circumstance is arbitrarily seized on, 
 and made conclusive evidence of evil intent, to the total 
 exclusion of every circumstance which would prove good 
 intent? 1 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 detec- 
 tion or prevention should treat honest men as guilty, or 
 teach men to be always suspicious of their neighbors, and 
 watchful that honest acts be precisely measured according 
 to the standard of legal morality. 2 
 
 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 
 
 1 " In my long experience, I have had occasion to observe the mis- 
 chievous operation of the rule, for under its application I have found 
 myself compelled, as judge, to pronounce transactions to be fraudulent 
 and void as to creditors which were known to be perfectly fair and bona 
 fide, and were not intended or calculated to delay, hinder, or defraud 
 creditors." (Davis v. Turner, 4 Gratt. 422, per Cabell, J.) 
 
 8 To 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.) 
 
70 POSSESSION. 
 
 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 exploring 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 nature of things, is a mixed question of law 
 and fact, and carries within itself the elements of perplexity 
 and contrariety. 1 The numerous exceptions which have 
 been made to the operation of the rule are, moreover, 
 attended with the practical inconvenience of multiplying 
 collateral issues, both of law and of fact, without throw- 
 ing any light upon the truth and justice of the cause. 
 They involve questions of practicability, disability, dili- 
 gence and notice, upon which the case may be made to 
 turn, irrespective of the fairness and good faith of the 
 transaction. It is, moreover, somewhat remarkable that 
 a person should be convicted of a fraud upon a nice ques- 
 tion whether he has used reasonable diligence or given 
 due notice. 2 
 
 ' Davis v. Turner, 4 Gratt. 422. In those courts where the doctrine of 
 fraud per se is held, it has accordingly heen found that there are no more 
 difficult and embarrassing questions than those which relate to the 
 respective 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.) 
 
 8 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 x the same thing, reduce it to one that is 
 only prima facie. Indeed, it seems impracticable to preserve unbroken 
 any rule of inflexible rigor upon the subject, however inexorable in its 
 terms, for the mind is apt to revolt against the despotism of a judicial 
 dogma that oppresses the truth and justice of a cause, or to seek refuge 
 in subtle distinctions, as artificial as the rule itself. 
 
POSSESSION. 71 
 
 Looks only to Form. — 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 
 mould the conveyance so as to avoid the discrepancy. 
 Nothing more is necessary than to give to the transaction 
 the form of a sheriff's sale, or of any of the other 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 sometimes 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. 1 The truth of the matter is that the doctrine has 
 been prompted by a commendable wish to accomplish a 
 desirable but impracticable 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 institu- 
 tions, moreover, the question is not whether every evil 
 ' contingency 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 convincing evi- 
 dence of fairness and good faith. 2 
 
 ' Davis v. Turner, 4 Gratt. 422. It was accordingly found necessary 
 in New York, to hold that the retention of possession after a sheriff's sale 
 is prima facie evidence of fraud. (Farrington v. Caswell, 15 Johns. 430 ; 
 Taylor v. Mills, 2 Edw. Ch. 318 ; Gardinier v. Tubbs, 21 Wend. 169 ; 
 Fonda v. Gross, 15 Wend. 628.) 
 
 - Davis v. Turner, 4 Gratt. 422 ; Stoddard v. Butler, 20 Wend. 507 ; 
 7 Paige, 163, per Senator Dickinson. 
 
72 POSSESSION". 
 
 Not Good Policy. — Even on the simple ground of 
 policy — the only ground on which it can by any possi- 
 bility be sustained — the rule is open to grave objections. 
 It restricts the free circulation of personal property, ham- 
 pers the spirit of commerce, checks the generous impulses 
 of the heart, and prohibits the charities of life. The 
 farmer or mechanic finds it necessary to sell his imple- 
 ments of husbandry or the tools of his trade, yet he can 
 not retain the possession, although they are the only 
 means of support for himself and family. 1 A minister of 
 the gospel can not retain the horse that is essential to the 
 performance of his duties. 2 Machinery must be removed 
 from the manufactory. 3 The vendor can not even be per- 
 mitted to finish the articles which are in the process of 
 manufacture. 4 A man can not purchase chattels, and 
 leave them with a feeble relative for the sake of comfort 
 and assistance. 5 If the vendor and vendee live in the 
 same house, there can not be a valid sale of the furniture 
 in it without a removal. 6 
 
 Commerce Promoted. — Illustrations of the danger of 
 false credit and fraudulent evasion of debt, whenever 
 delivery and change of possession do not accompany and 
 
 'Doane v. Eddy, 16 Wend. 523. 
 ! Doane v. Eddy, 16 Wend. 523. 
 8 Swift v. Thompson, 9 Conn. 63 ; Tobias v. Francis, 3 Vt. 425. 
 
 4 Carter v. Watkins, 14 Conn. 240. 
 
 5 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 cred- 
 itors, 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 v. 
 Mabry, 13 Ala. 713 ; Mauldin v. Mitchell, 14 Ala. 814.) 
 
 "Steelwagon v. Jeffries, 44 Penn. 407. 
 
POSSESSION. 73 
 
 follow change of property, and of the modes in which such 
 frauds can be effected, can be readily furnished, and their 
 truth can not 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 examination of courts. But 
 a glance at the daily business 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, requirements and industry of the young 
 or the needy have been aided and stimulated ; large con- 
 cerns of honorable but unfortunate merchants have been 
 settled to the greatest advantage of the creditors and the 
 least possible loss to 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 slightest injury or fraud to 
 creditors. Society reaps nothing but unquestioned benefit 
 from nine-tenths of such transactions 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. 1 
 
 1 Cole y. White, 26 Wend. 511, per Senator Verplanck. 
 
74 POSSESSION. 
 
 Rights of Others besides Creditors. — Since the reten- 
 tion of possession may in a multitude of cases be beneficial 
 and advantageous, there is another consideration that is 
 entitled to great strength. Neither the legal nor the 
 moral code should be administered for the sole benefit of 
 creditors. They become creditors by their own volition, 
 and have abundant means for their own protection. Gen- 
 eral creditors ought not to be placed upon a superior foot- 
 ing 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 can not be sus- 
 tained without trampling upon all others, and the ordi- 
 nary 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 
 benevolent 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 pro- 
 nounced by their own tribunals. There ought not, there- 
 fore, 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 proper province and attempts 
 an impossible task. Honesty can not be divided into 
 chapters, nor morality defined by sections. 1 
 
 Prima facie Evidence may be Explained. — The doc- 
 trine that the retention of possession will, under all cir- 
 cumstances, render a transfer of personal property fraudu- 
 
 1 Stoddard v. Butler, 20 Wend. 507, per Senator Dickinson. 
 
POSSESSION. 75 
 
 lent and void has not been laid down by any court, nor 
 adopted anywhere. There are admitted exceptions to the 
 rule, varying in number and character according to the 
 strictness with which the rule is administered. But evi- 
 dence is either prima facie or conclusive. If evidence is 
 liable to be contradicted or .explained, it is only prima 
 fade, but conclusive evidence can not be contradicted. 
 Prima facie evidence, although it admits the possibility of 
 its falsity, yet is conclusive unless contradicted or ex- 
 plained. Conclusive evidence admits no such possibility 
 of falsity. It is absolute verity. Any evidence which 
 may be explained is not conclusive, but only prima facie. 
 If, therefore, there are special cases in which special 
 reasons may be given to show the fairness of the transac- 
 tions, 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 evidence 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, therefore, not 
 conclusive, but only prima facie evidence of fraud. 1 
 
 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 retention of posses- 
 sion is only presumptive evidence of fraud, the special 
 
 1 Hall v. Tuttle, 8 Wend. 375. 
 
76 POSSESSION. 
 
 reasons which are permitted to take a case out of the rule 
 must be shown to and approved of by the court. 1 
 
 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 conse- 
 quently 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 trans- 
 actions. It is simply a presumption of a fact raised by the 
 law, a legal evidence of fraud, conclusive 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. 2 
 
 Court can not Determine Sufficiency of Explan- 
 atory 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 incom- 
 
 1 Diwer 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 v. 
 Watkins, 14 Conn. 240 ; Planters' Bank v. Borland, 5 Ala. 531 ; Trask 
 v. Bowers, 4 N. H. 309 ; Mauldin v. Mitchell, 14 Ala. 814. 
 
 In Connecticut the practice is slightly different. It is not according 
 to 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 ques- 
 tion of fact, with instruction that if they find none of the established ex- 
 ceptions, they will find the transaction fraudulent. (Swift v. 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. 
 
 2 Stoddard v. Butler, 20 Wend. 507, per Senator Verplanck. 
 
POSSESSION. 77 
 
 petent evidence, for this does not imply the right to ex- 
 clude proof of such facts as by the ordinary laws of evi- 
 dence 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 not abso- 
 lutely 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 neces- 
 sity 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 or 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 ascer- 
 tained is relevant and must go to the jury, unless excluded 
 by some general rule of evidence. Of its weight the jury 
 are the judges. In every question of the fact of fraudu- 
 lent intent, the intent is to be inferred from external facts 
 or circumstances, and good faith may be established in the 
 same way. What circumstances will amount to proof can 
 never be matter of 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 circum- 
 stances. It is sufficient if they produce moral certainty to 
 the exclusion of reasonable doubts. 1 
 
 1 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 mutu- 
 
78 POSSESSION. 
 
 Review of Authorities. — 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. 1 
 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 
 
 ally assist and check each other, seems to be the safest, and, conse- 
 quently, 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 tech- 
 nical a cast, and 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 ordi- 
 nary experience and sagacity.'' And then adds : " I can not forbear 
 adding, that among the many eminent public services and titles to last- 
 ing legal and literary honors of this venerable and distinguished jurist, 
 his uniform and zealous guardianship of the trial by jury, even to the last 
 hour of his judicial life, is conspicuous and remarkable. Eminent above 
 his cotemporaries for profound and extensive legal science, bringing to 
 the consideration of every important 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 scholarship and legal science, he, above 
 all our judges, was the foremost to confess that there was still something 
 that books can not teach — that the knowledge of the motives and springs 
 of human action can be gained from everyday experience better than 
 from judicial rules — and that such rules are constantly liable to become 
 harsh, technical, severe and oppressive, without the correcting aid of the 
 everyday experience of men and life found in the jury-box.'' 
 1 3 Co. 80 ; s. O. Moore, 638 (1602). 
 
POSSESSION. 79 
 
 deed of gift of all his goods and chattels, real and per- 
 sonal, whatsoever, to Twyne in satisfaction of his debt. 
 Notwithstanding this, Pierce continued in possession of 
 the goods, and some of them he sold, and he sheared the 
 sheep and marked them with his own mark. Afterwards 
 Chamberlin obtained judgment against Pierce, and had a 
 fieri 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 command 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 
 bona 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 regard of his poor 
 estate, either to permit the donor, or some other for him, 
 or for his benefit, to use or have possession 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 as a mark of fraud, similar in its char- 
 acter and effect to secrecy, the pendency of a suit, unusual 
 6 
 
80 POSSESSION. 
 
 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 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 another, is unquestionably fraudulent, for 
 it is merely colorable. Such trusts of chattels, when made 
 in writing, are expressly made void by the statute of 
 3 H. VII, c. 4, and it was with reference to this that the 
 court probably 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 re- 
 tained in this case was not a mere naked possession, but a 
 possession 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 sheared 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 posses- 
 sion from mere naked possession. 1 
 
 In Bucknal v. Roiston, 2 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 plaintiff of the goods and commodities 
 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 repayment of the £600 and £40 
 
 1 Macdona v. Swiney, 8 Ir. Law (N. S.), 73. ! PrecCh. 285 (1709). 
 
POSSESSION. 81 
 
 per cent, premium. The ship went her voyage, and the 
 goods were sold, and with the money others bought, and 
 those likewise invested in other goods, and 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 thereupon brought their bill to 
 have an account and discovery of the goods and satisfac- 
 tion for the produce and advantage 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 negotiate and sell them for their ad- 
 vantage, 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 entitled to the trust of these goods, and to all 
 the advantages 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 Guild- 
 hall, that if a man sells goods and still continues in posses- 
 sion 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, C. J., 1 justly observes : 
 
 1 Hall v. Tuttle, 8 Wend. 375. 
 
82 POSSESSION. 
 
 " If it was intended to say that such continuance in posses- 
 sion was conclusive evidence of fraud and the fairness of 
 the transaction might not be shown 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 possession of the goods. 
 
 In Stone v. Grubbam, 1 which was an action of eject- 
 ment, Robert Casey, who was possessed of a lease for 
 years, made a gift of all his lands and chattels, including 
 the lease, to Richard Saltingstone, but continued in posses- 
 sion after the transfer, and it was urged that for this 
 reason the transfer was fraudulent. Coke, C. J., said, " If 
 a man do mortgage his land, and yet still continue his pos- 
 session, no disseizin is wrought by this, and so is Winning- 
 ton's case ; if it was an absolute conveyance and a continu- 
 ance in possession afterwards, this shall be adjudged in law 
 to be fraudulent, for this hath the face of fraud ; but other- 
 wise 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, dolus versatur vn imiversalibus, but when the 
 conveyance is conditional, continuance in possession after 
 this shall not, in the judgment of the law, be said to be 
 fraudulent, 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. If a 
 man hath any intention to evade out of the statute of Eliz. 
 
 1 2 Buls. 217 ; S. c. 1 Bol. Eep. 3 (1615). 
 
POSSESSION. 83 
 
 c. 5, whatsoever he shall say afterwards shall not amend 
 the matter, but the same shall be fraud and 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 an- 
 swered, 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 
 Casey (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 convey- 
 ance 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 Casey originally owned the lease 
 and transferred it to Saltingstone, and that Saltingstone 
 subsequently assigned it to Weston. None of these per- 
 sons, however, are parties to the suit. It is not, there- 
 fore, 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 possession of the 
 lease. From the remarks in regard to secrecy, 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 reten- 
 tion of possession is not applicable to leases or other 
 interests in land. 1 The report of this case in Rolle's 
 
 1 Cadogan v. Kennett, Cowp. 432 ; Ryall v. Rolle, 1 Yes. 348 ; s. c. 1 
 Atk. 165 ; 1 Wils. 260 ; Worseley v. De Mattos, 1 Burr. 467 ; Phettiplace 
 v. Sayles, 4 Mason, 312. 
 
84 POSSESSION. 
 
 Reports is briefer, but gives what may be considered as 
 the real point decided by the court. There the instruction 
 to the jury is, that "if a man makes a gift, and the con- 
 sideration is to be in the future, the continuance 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 pos- 
 session before the condition 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 condition 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 transaction in this case was sustained. 
 
 The distinction between a mortgage and an absolute 
 deed is also made in Lady Lambert's case. 1 There it is 
 said that " If A., bona fide and for valuable consideration, 
 mortgage his land whereof he hath a term 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, &c, 
 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. upon a bond, and 
 execution awarded ; in this case, execution shall not be 
 made of this lease, for this deed of mortgage shall not be 
 said to be fraudulent as to the creditor, for when a con- 
 veyance is not fraudulent at the time of making of it, it 
 shall never be said to be fraudulent for any matter ex 
 post facto." 
 
 1 Shep. Touch. 65. 
 
POSSESSION. 85 
 
 In Meggot v. Mills, 1 it was proved that Wilson exer- 
 cised the trade of a victualler, during which time Meggot 
 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 security of the money 
 made a bill of sale of the goods to Mills, but kept the pos- 
 session of them. After he became an inn-keeper, Meggot 
 continued to sell him drink as before. 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 did 
 not express upon what account. He was subsequently 
 declared a bankrupt, and Meggot was appointed his as- 
 signee. Meggot brought an action in trover against Mills 
 for the goods. Holt, Ch. J., said: "If these goods of 
 Wilson's had been assigned to any other creditor, the keep- 
 ing of the possession 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 securing 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, 2 it was resolved by Holt, Ch. J., 
 " that if goods of A. are seized upon a fieri 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." 
 
 1 1 Ld. Kaym. 286 ; s. C. 12 Mod. 159 (1697). 
 2 1 Ld. Raym. 724 (1698). 
 
86 POSSESSION. 
 
 The case of Ryall v. Rolle, 1 arose under the statute of 
 21 James I, c. 19, but the general doctrine of the retention 
 of possession by the vendor was considered. Burnet, J., 
 said : " The next consideration is, in what condition the 
 creditors stood in their relation to conditional sales or mort- 
 gages by their debtors to their prejudice, where the mort- 
 gagor continued in possession of the goods mortgaged, and 
 the statute governing this matter is 13 Eliz., in which 
 there is no distinction between conditional and absolute 
 sales, provided they are fraudulent. This statute being 
 made to protect creditors against all conveyances to defraud 
 them, it was incumbent 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 creditors, 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 bona fide, from the 
 continuing in possession and trading therewith. It is diffi- 
 cult, unless in very special cases, to assign a reason why an 
 absolute or conditional vendee of goods should leave them 
 with the vendor unless to procure a collusive credit, and it 
 is the same whether in absolute or conditional sales, neither 
 the statute nor the reason of the thing making any differ- 
 
 1 1 Ves. 348 ; S. C. 1 Atk. 165 (1749) ; 1 Wils. 260. 
 
POSSESSION. 87 
 
 ence. But it is insisted there are several cases where 
 there is a distinction as to this possession after sale between 
 conditional and absolute conveyances of land 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 
 possession of land 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 possession 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 tenant as well as the owner, the title 
 deeds, &c, may be required, 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 
 distinction 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 distinc- 
 tion 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 of possession is not re- 
 
88 POSSESSION. 
 
 garded as decisive, but the question 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 1 arose under the 
 statute of 21 Jac. c. 19, but the doctrine of possession was 
 discussed. Lord Mansfield, in delivering the opinion of 
 the court, said : " Every equivocal fact may be explained 
 by circumstances. Hardly any deed is fraudulent upon 
 the mere face of it. It is a good sale if the consideration 
 be true ; fraudulent if false; good if possession immediately 
 follows ; bad if it do not ; nay, the not taking possession, 
 being only evidence of fraud, may be explained." 
 
 Martin v. Podger el 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 Martin, 
 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. Tbe defendants seized the goods 
 in the execution of a writ against tbe son. Lord Mans- 
 field said : " As the goods were in the possession of the 
 son, I think the judge should have left it to the jury 
 whether, 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 unanimous 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 
 appears that the bill of sale was considered fraudulent in 
 
 1 1 Burr. 467 (1753). * 2 W. Bl. 701 ; s. c. 5 Burr. 2631 (1770). 
 
POSSESSION. 89 
 
 fact. It is there stated that, for want of proof of the 
 judgment, a verdict was found for the plaintiff, subject 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 fieri facias issued. 
 The court decided that it was necessary to produce a 
 copy of the judgment. " But the whole court were like- 
 wise of opinion that this recovery in this action, brought 
 by the father upon a fraudulent bill of sale, merely color- 
 able, not a real, fair transaction, but leaving the possession 
 in the son, and fraudulent even at common law, inde- 
 pendent of the statute of 13 Eliz. c. 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 matter fit to be left to a jury. But it is a shame- 
 ful 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 fraudu- 
 lent; the son remained in possession. The recovery is 
 manifestly contrary to reason and justice." 
 
 Cadogan v. Kennett 1 was an action of trover, brought 
 by the plaintiffs, who were trustees under the mar- 
 riage settlement of Lord Montfort, against Kennett, who 
 was a judgment creditor of Lord Montfort's, and the 
 other defendants who were sheriff's officers, to recover cer- 
 tain goods taken by them in execution under a fi. fa. At 
 the trial the marriage settlement was proved, by which it 
 appeared that the goods in question, which were the house- 
 hold goods belonging to Lord Montfort, at his lordship's 
 
 1 2 Cowp. 432 (1776). 
 
90 POSSESSION. 
 
 house in town, were conveyed to plaintiffs, as trustees, for 
 the use of Lord Montfort for life, remainder to Lady Mont- 
 fort for 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. Ken- 
 nett was a creditor of Lord Montfort' s at the time of the 
 settlement. At the trial Lord Mansfield thought the pos- 
 session of Lord Montfort was not fraudulent, because it 
 was in pursuance and in execution of the trust, and the 
 jury found a verdict for the plaintiffs. Upon a motion for 
 a new trial, Lord Mansfield said : " Such a construction is 
 not to be made in support of creditors as will make third 
 persons sufferers. Therefore the statute does not militate 
 against any transaction bona 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 consideration 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 fraudulent, 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 pos- 
 session, and appear as the visible owner, it is evidence of 
 fraud, because goods pass by delivery, but it is not so in 
 the 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 con- 
 
POSSESSION. 91 
 
 trivance 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 fraudu- 
 lent on the ground of possession alone, and that the obiter 
 dicta of Coke, in Stone v. Grubbam, and of Holt, in Meggot 
 v. Mills, and the remarks of Sir Edward Northey, in Buck- 
 nal v. Eoiston, are all that can be found to support the 
 doctrine that the retention of possession is conclusive evi- 
 dence of fraud. 
 
 Edwards v. Harben 1 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. Qd. 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, house- 
 hold 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 expi- 
 ration 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 posses- 
 sion of Mercer until the time of his death. After the 
 death of Mercer, and before the expiration of fourteen days 
 from the execution of the bill of sale, the defendant entered 
 the house of the deceased, and took possession of the effects 
 contained in the bill of sale and afterwards sold them. 
 
 '2T.R. 587(1788). 
 
92 POSSESSION. 
 
 The plaintiff sued him as executor de son tort. At the 
 trial a verdict was found for the plaintiff, subject to the 
 opinion of the court upon these facts. Buller, J., in deliv- 
 ering 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 pos- 
 session accompanies and follows the deed, it is fraudulent 
 and void. I lay stress upon the words 'accompanies 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 case in Bulstrode, the court held that 
 an absolute conveyance, or gift of a lease for years, unat- 
 tended 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 per- 
 formed 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 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 consistent with the deed, and 
 such possession comes within the rule as accompanying 
 
POSSESSION. 93 
 
 and following the deed. That case has been universally 
 followed by all the cases since. The Chancellor, in the 
 case of Bucknal v. Roiston, proceeded on the distinction 
 which I have taken ; he supported the deed because the 
 want of possession was consistent with it. This has been 
 argued by the defendant'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 trans- 
 action 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, tbat, in point of 
 law, is fraudulent. On the other hand, there are cases 
 where the vendor has continued in possession and the bill 
 of sale has not been adjudged fraudulent if the want of 
 immediate possession be consistent with the deed." 
 
 It is important to see upon what grounds the counsel, 
 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. c. 5, because it was not attended with any 
 mark of possession, notorious to the rest of the world, but 
 the vendor, by agreement with the vendee, which consti- 
 tutes 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. When- 
 ever the vendor is found in the actual possession of goods 
 which he has sold, such continuance jn possession is prima 
 facie evidence 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 
 between the parties that the vendor shall be permitted, 
 after the sale, to have for any space of time, not only the 
 
94 POSSESSION. 
 
 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 continue 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 in- 
 capable of explanation from any other motive than that of 
 imposing on creditors — it is a stipulation from which neither 
 party can draw a fair advantage. Either 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 
 consideration was not adequate; otherwise the vendee 
 would not risk his property and give up part of his pur- 
 chase for nothing. Apparent personal property is the 
 principal 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 objects of personal accommodation, or as instruments 
 of trade, that his creditors should be aware of his situa- 
 tion." 
 
POSSESSION". 95 
 
 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, posi- 
 tive agreement that the vendor was not only to keep pos- 
 session 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. 1 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 3 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 ven- 
 dor 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 3 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 re- 
 ceived for sales was placed in a till to which he had access. 
 Ryall v. Rolle 4 and Worsely v. De Mattos were also cases 
 where traders mortgaged their stock in trade, and after 
 the execution of the mortgages continued to carry on 
 their trade and sell the property for their own benefit. 5 
 
 'Macdona v. Swiney, 8 Ir. Law (N. S.) 73. 
 
 8 1 Esp. 205 (1795). ' 3 1 Campb. 332 (1808). 
 
 * 1 Ves. 348 ; 1 Atk. 165 ; 1 Wils. 260. 
 
 6 The only exception to these remarks is Bamford v. Baron, 2 T. R. 
 594, note. That was an assignment for the benefit of creditors, and the 
 debtor was permitted to carry on the trade for a certain period, and 
 
 7 
 
96 POSSESSION. 
 
 On the other hand, in none of the cases where the trans- 
 action has been sustained, notwithstanding the retention 
 of possession, was the vendor allowed to sell the goods 
 for his own benefit. 1 
 
 As the other cases in England simply constituted 
 exceptions to the doctrine laid down in Edwards v. Har- 
 ben, until it was finally settled that the retention of pos- 
 session was only presumptive evidence of fraud, it is not 
 necessary, in this connection, to trace them any further. 
 For the purpose of understanding the course of the deci- 
 sions upon this subject, it should be borne in mind that 
 the rule laid down by the court in that case was that 
 
 account to the trustee for all the profits of the trade from the date of the 
 assignment. If this case should he considered good law in England now, 
 it would be placed on a different ground. Reed v. BladeB, 5 Taunt. 212, 
 supports the distinction stated in the text. Doubts as to what was really 
 decided in Edwards v. Harben are raised by the remarks of Buller, J., in 
 Buller's N. P. 258, and Hazelinton v. Gill, 3 T. R. 620, note ; 3 Doug. 
 415 ; Weaver v. Joule, 91 E. C. L, 309 ; S. c. 3 C. B. (N.S.) 309. 
 
 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 
 shopkeeper with goods on credit, and thus enables 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 prop- 
 erty 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 ; 2 Bailey, 118.) 
 
 1 Eastwood v. Brown, By. & Mood. 312; Hoffman v. Pitt, 5 Esp. 22; 
 Eveleigh v. Purrsford, 2 Mood. & Rob. 539. The only exception is Ben- 
 ton v. Thornhill, 2 Marsh. 427 ; s. c. 7 Taunt. 149. 
 
POSSESSION. 97 
 
 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 inser- 
 tion of a stipulation providing that the vendor might 
 retain possession, and several deeds have been held valid 
 simply on the ground of the presence of such a clause 1 A 
 rule that could be thus easily evaded. was of course prac- 
 tically worthless, and a modification was found to be 
 necessary. 
 
 In Vredenbergh v. White, 2 Barrow v. Paxton 3 and 
 Beals v. Guernsey, 4 it was held that possession was only 
 prima facie evidence of fraud, and open to explanation. 
 In Sturtevant v. Ballard, 5 the bill of sale contained a 
 stipulation that the vendor should have the use and occu- 
 pation of the articles for three months. Kent, Ch. J., 
 said : " The question arising upon this case is whether the 
 sale is valid in law as against the judgment creditor. The 
 great point is whether the fact of permitting the vendor to 
 retain possession of the goods did not render this sale 
 fraudulent in law, notwithstanding such permission was 
 inserted in the deed as a condition of the contract. If 
 there had been no such insertion, but the sale had been 
 absolute on the face of it, and possession had not immedi- 
 ately accompanied and followed the sale, it would have 
 been fraudulent 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 
 
 1 Wooderman v. Baldock, 8 Taunt. 676 ; Martindale v. Booth, 3 B. & 
 A. 498. 
 
 ! 1 Johns. Cas. 156 (1799). 3 5 Johns. 258 (1810). 
 
 * 8 Johns. 446 (1811). 6 9 Johns. 337 (1812). 
 
98 POSSESSION. 
 
 deed, is necessarily valid. There must be some sufficient 
 motive, and of which the court is to judge, -for the non- 
 delivery of the goods, or the law will still presume 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 by 
 the court, fraudulent and void as against creditors. This 
 is clearly not one of those cases." Hamilton v. Russell 1 
 preceded this case in point of time, but this case is the 
 leading one in America 2 upon this subject. 
 
 In Wickham v. Miller, 3 Gates, J., held that the non- 
 delivery of the goods is no more than prima facie evi- 
 dence, and might be explained by circumstances, but the 
 decision did not rest upon that point. In Butts v. Swart- 
 out, 4 the plaintiff made a contract with the vendor, who 
 was a cabinet-maker, for a bureau. When nearly com- 
 pleted, 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 defendant, 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 
 
 ' 1 Cranch. 309. 
 
 2 Clow v. Woods, 5 S. & E. 275 ; Coburn v. Pickering, 3 N. H. 415 ; 
 Patten v. Smith, 5 Conn. 196 ; S. o. 4 Conn. 450 ; Gibson v. Love, 4 Pla. 
 217 ; Hundley v. Webb, 3 J. J. Marsh. 643 ; Planters' Bank v. Borland, 
 5 Ala. 531. 
 
 8 12 Johns. 320 (1815). "2 Cow. 431 (1823). 
 
POSSESSION. 99 
 
 one circumstance in proof of fraud, and it is accounted 
 for." 
 
 The question arose again in Bissell v. Hopkins, 1 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 pos- 
 session by the vendor of personal chattels after the sale is 
 not conclusive evidence of fraud. The vendee may, not- 
 withstanding, 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 agree- 
 ment 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 evidence 
 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 overruling Sturtevant 
 v. Ballard. But the genius of the law demands that con- 
 flicting cases shall be reconciled wherever reconciliation is 
 possible. Accordingly, in Divver v. McLaughlin, 8 Savage, 
 Ch. J., held that " The possession 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 
 
 1 3 Cow. 166 (1824). 2 2 Wend. 596 (1829). 
 
100 POSSESSION. 
 
 creditors. The mortgage in this case, after forfeiture with- 
 out explanation, must be held fraudulent and void as against 
 creditors. 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 1 
 and in Archer v. Hubbell. 2 
 
 This was the condition of the question at the time of 
 the adoption of the revised code. 3 In the revision of the 
 statute law it was attempted to settle all doubts and dis- 
 crepancies by positive legislation and strict definition. 
 Accordingly, the revisers recommended that " all sales or 
 mortgages not accompanied by an immediate delivery, 
 and followed by an actual and continued change of pos- 
 session, should be void against the creditors of the vendor," 
 and this without any exception and excluding all explana- 
 tion. But the same considerations 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 recom- 
 mended by the revisers, they added a clause of exception, 
 enabling the person claiming under the sale or assignment 
 to rebut the legal presumption of fraudulent intention by 
 positive evidence of the good faith of the transaction. It 
 was accordingly enacted, first, nearly in the strong and 
 
 1 2 Wend. 446 (1829). ! 4 Wend. 514 (1830). * 1830. 
 
POSSESSION. 101 
 
 comprehensive language of the revisers, that every sale of 
 goods and chattels and every assignment by way of mort- 
 gage or security, " unless the same be accompanied by an 
 immediate 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 pur- 
 chasers, and shall be conclusive evidence of fraud"; then 
 the legislature, of its own motion, added the excepting and 
 qualifying clause, " unless it shall be made to appear on 
 the part of the person 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." 
 This question of fraudulent intent a subsequent section 
 enacted should be a question of fact and not of law. 1 
 These enactments were thought to have settled the law 
 conclusively, but they merely afforded a new and remark- 
 able proof of the imperfection of human language and the 
 impossibility of definitely settling any great rule of law 
 for the complicated affairs of human life merely by the 
 general language of a statute or the provisions of a code. 2 
 Hall v. Tuttle 3 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 Bliz. 
 ch. 5, and what the common law was before that statute 
 was enacted. But in Collins v. Brush, 4 the court said : 
 
 1 Eev. Stat. 136, § 5. 
 
 2 Stoddard v. Butler, 20 Wend. 507 ; 7 Paige, 163 ; 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.) 
 
 3 8 Wend. 375 (1832). 4 9 Wend. 198 (1832). 
 
102 POSSESSION. 
 
 " It is incumbent upon the vendee to repel the presump- 
 tion of fraud by showing some satisfactory reason for his 
 omission to take the property into his possession. It is 
 not sufficient to show a valuable consideration; 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. 1 It was also held 
 that the distinction between conditional and absolute sales 
 was abolished, 2 and that the mere accommodation of the 
 parties was not a satisfactory explanation, so that the 
 only effect of the enactments seemed to be to make the 
 rule more rigorous. 
 
 The question arose again in Stoddard v. Butler. 3 
 Butler, who was a creditor of Stoddard, instituted suit 
 and obtained judgment; but between the commencement 
 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 satisfaction 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 conveyance as fraudulent. The vice- 
 chancellor dismissed the bill. The complainants appealed 
 to the chancellor, who reversed the decree of the vice- 
 chancellor, and adjudged the assignment to be fraudulent. 
 
 1 Gardner v. Adams, 12 Wend. 297 (1834); Doane v. Eddy, 16 Wend. 
 523 (1837); Randall v. Cook, 17 Wend. 53 (1837); Stevens v. Fisher, 19 
 Wend. 181 (1838); Beekman v. Bond, 19 Wend. 444 (1838). 
 
 2 Gardner y. Adams, 12 Wend. 297 ; Doane v. Eddy, 16 Wend. 523 ; 
 Randall v. Cook, 17 Wend. 53. 
 
 a 20 Wend. 507 ; s. o. 7 Paige, 163 (1838). 
 
POSSESSION. 103 
 
 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 Ed- 
 wards, 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. 1 The important features of 
 the case, however, were the opinions of Senator 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 impression 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, 3 
 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 defend- 
 ant moved for a nonsuit. The plaintiff insisted that the 
 
 1 Smith v. Acker, 23 Wend. 653. 2 23 Wend. 653 (1840). 
 
104 POSSESSION. 
 
 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 error, 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 jury. In Stevens v. 
 Fisher, 1 Cowan, J , had endeavored to support the former 
 by placing the doctrine upon the right of the court to 
 reject incompetent and irrelevant testimony. This propo- 
 sition was argued more at length in White v. Cole. 2 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 determined by the jury. If the testimony 
 offered be pertinent in the opinion of the judge, it is his 
 duty to receive it; if not, he is bound to reject it. This 
 is a 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 
 
 1 19 Wend. 181. . s 24 Wend. 116 (1840). 
 
POSSESSION. 105 
 
 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 to the common law. The 
 whole, then, comes down to the question of what tes- 
 timony is admissible. The principle has, therefore, 
 obtained an almost universal footing, that the mere 
 proof of a debt, to whatever amount, shall not be allowed 
 to excuse the continuance of possession ; and that it can- 
 not be so regarded by a jury, however necessary the use 
 of the property may be for the debtor. These two cir- 
 cumstances prove nothing of themselves. They do not 
 make an explanation, nor can the jury regard them as 
 sufficient to overturn the presumption of fraud derivable 
 from the possession of the debtor. They are not pertinent 
 evidence " 
 
 The case was carried up for review to the Court of 
 Errors, 1 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 
 relevant testimony on a question of the fact of fraudu- 
 lent intent was excluded from the consideration of the 
 jury, whose right it was to pass upon its weight and 
 sufficiency. 
 
 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 Eandall 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 
 
 1 Cole v. White, 26 Wend. 511 ; s. c. 24 Wend. 116 (1841). 
 
106 POSSESSION. 
 
 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 1 said : 
 " If, at the same time, the law had laid its interdiction 
 upon all human intercourse as to exchanges or purchases 
 of property, the same result would have been produced, 
 and with about equal justice and propriety." Senator 
 Hopkins also said : 2 " 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, 3 Bronson, J., delivered a dis- 
 senting opinion, and, observing that his remarks had been 
 made the text for spirited and witty commentary, and 
 styling the opinion of Senator Hopkins the prevailing 
 opinion, held that the decision of the Court of Errors 
 should be disregarded. 
 
 In Hanford v. Artcher, 4 the Court of Errors, adhering 
 to its previous decisions, felt called upon to notice and 
 
 1 Stoddard v. Butler, 29 Wend. 507 ; s. c. 7 Paige, 163. 
 
 8 Smith v. Acker, 23 Wend. 653. a 1 Hill, 438. 
 
 H Hill, 271 ; s. C. 1 Hill, 347 (1842). 
 
POSSESSION. 107 
 
 comment upon this opinion and vindicate its course. In 
 this case there was still another point. 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 con- 
 tinued change of possession. The Court of Errors, con- 
 sidering that the instruction restricted them to the con- 
 sideration 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 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 provisions 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 intention to defraud creditors. This 
 would have been in the language and spirit of the statute. 
 But the direction gave an artificial, restricted and errone- 
 ous interpretation to the statute." It 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 explana- 
 tion 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 asserted 
 in Randall v. Parker 1 that all the cases upon this subject 
 
 1 3 Sandf. 69. 
 
108 POSSESSION. 
 
 were reconcilable. This attempt at a reaction, however, 
 was only temporary, and the point is now considered as 
 finally and conclusively determined. 1 Thus terminated 
 one of the most remarkable controversies in the whole 
 annals of jurisprudence, a controversy extending over a 
 period of more than two centuries, and engaging the 
 attention of the most eminent jurists of the times. 
 
 As this question may be considered to have turned 
 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 
 conclusive evidence of fraud was held for a long time 
 in Virginia. 2 In Land v. Jeffries, 3 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 submitted to the jury, and that it is only prima 
 facie evidence. Being only prima facie evidence of fraud, 
 it must, from its very nature, be liable to be rebutted by 
 
 1 Thompson v. Blanchard, 4 N. T. 303 ; Miller v. Lockwood, 32 N. Y. 
 293 ; Van Buskirk v. Warren, 39 N. T. 119 ; 34 Barb. 457 ; 13 Abb. Pr. 
 145 ; 4 Abb. Ap. 457. 
 
 * Alexander v. Deneale, 2 Munf. 341 ; Williamson v. Farley, Gilmer, 
 15 ; Robertson v. Ewell, 3 Munf. 1 ; Glasscock v. Batton, 6 Band. 78 ; 
 Lewis v. Adams, 6 Leigh, 320 ; Mason v. Bond, 9 Leigh, 181 ; Tavenner 
 v. Robinson, 2 Rob. 280. 
 
 3 5 Rand. 211 ; S. C. 599. 
 
POSSESSION. 109 
 
 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 show- 
 ing the operation of this principle, but a single one will 
 suffice. 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 any 
 regard to his convenience, but solely to await the reason- 
 able 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 
 sheriflf, finding the chattel in his possession, levies the 
 execution upon it and sells it. In an action of trespass 
 brought by the vendee against the sheriflf, if the vendee 
 exhibits nothing but his absolute bill of sale, the sheriflf 
 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 prima facie 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 abso- 
 lute 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 testi- 
 mony." 
 
110 POSSESSION. 
 
 "If, therefore, the vendee shall prove that the posses- 
 sion of the vendor was connected with no motive of benefit 
 or advantage to the vendor, but was for the reasonable 
 convenience of the vendee only, and was intended to con- 
 tinue no longer than such reasonable convenience required, 
 all presumption of property in the vendor or of trust for 
 him is done away, and consequently 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 possession of the vendor, but that it 
 was agreed between the vendor and vendee at the time of 
 the conveyance that the chattel should remain in the pos- 
 session 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 
 possession 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 possession 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 1 and Lewis v. Adams. 2 The confidence of 
 the profession in the former decisions was thus shaken, 
 and doubts and uncertainty were produced. It was there- 
 fore deemed best that the whole subject should be re- 
 viewed, and the law finally settled so as to preclude 
 future controversy. In Davis v. Turner 3 it was deter- 
 mined that possession simply raised a presumption of 
 fraud, and that the weight and sufficiency of the evidence 
 to rebut it was for the consideration of the jury. 
 
 1 4 Leigh, 535. ! 6 Leigh, 320. 8 4 Gratt. 422 (1848). 
 
POSSESSION. Ill 
 
 The Authorities. — The preponderance of the author- 
 ities is, at the present time, in favor of this doctrine. 1 
 
 1 England — Arundell v. Phipps, 10 Ves. 139 ; Martindale v. Booth, 3 
 B. & A. 498 ; Eastwood v. Brown, Ry. & Mood. 312 ; Orlabar v. Harwar, 
 Comb, 348 ; Hoffman v. Pitt, 5 Esp. 22 ; Latimer v. Batson, 4 B. & C. 
 652 ; Benton v. Thomhill, 2 Marsh, 427 ; s. c. 7 Taunt. 149 ; Martin v. 
 Podger, 2 W. Bl. 701 ; S. 0. 5 Burr. 2631 ; Carr v. Burdiss, 5 Tyrw. 309 ; 
 Eveleigh v. Purrsford, 2 Mood. & Rob. 539 ; Lindon v. Sharp, 6 M. & G. 
 895 ; Macdona v. Swiney, 8 Ir. Law (N. S.) 73. Contra, Edwards v. 
 Harben, 2 T. R. 587 ; Wordall v. Smith, 1 Camp. 332 ; Paget v. Perchard, 
 1 Esp. 205 ; Legerd v. Linley, Clayt. 38. 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, 24 Mass. 56 ; s. C. 
 25 Mass. 443 ; Macomber v. Parker, 31 Mass. 497 ; s. c. 30 Mass. 175 ; 
 Fletcher v. Willard, 31 Mass. 464; Allen v. Wheeler, 70 Mass. 123; 
 Towne v. Fiske, 127 Mass. 125. New York— Smith v. Acker, 23 Wend. 
 653 ; Cole v. White, 26 Wend. 511 ; s. c. 24 Wend. 116 ; Hanford v. 
 Artcher, 4 Hill, 271 ; s. c. 1 Hill, 347 ; Beals v. Guernsey, 8 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 ; Puller 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. 303 ; Van Buskirk 
 v. Warren, 39 N. Y. 119 ; s. c. 34 Barb. 457 ; 13 Abb. Pr. 145 ; 4 Abb. 
 Ap. 457 ; Miller v. Lockwood, 32 HT. Y. 293. Contra, Sturtevant v. Bal- 
 lard, 9 Johns. 337 ; Williams v. Lowndes, 1 Hall, 579 ; Divver v. Mc- 
 Laughlin, 2 Wend. 596 ; Doane v. Eddy, 16 Wend. 523 ; Collins 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, 29 N. J. 250. Contra, Chumar v. 
 Wood, 6 N. J. 155. Virginia — Davis v. Turner, 4 Gratt. 422 ; Forkner v. 
 Stewart, 6 Gratt. 197 ; Howard v. Prince, 11 N". B. R. 322. Contra, Wil- 
 liamson v. Farley, Gilmer, 15 ; Alexander v. 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 ; Mason v. Bond, 9 Leigh, 181 ; Tavenner 
 v. Robinson, 2 Rob. 280 ; Glasscock v. Batton, 6 Rand. 78. North Caro- 
 lina—Cos. v. Jackson, 1 Hayw. 423 ; Vick v. Keyes, 2 Hayw. 126 ; Falk- 
 ner v. Perkins, 2 Hayw. 224 ; Trotter v. Howard, 1 Hawk. 320 ; Smith v. 
 Niel, 1 Hawk. 341 ; Rea v. Alexander, 5 Ired. 644 ; State v. Bethune, 8 
 Ired. 139. Contra, Gaither v. Mumford, 1 N". C. T. R. 167. South 
 8 
 
112 possession. 
 
 Actual, not merely Constructive, Change of Pos- 
 session. — The change of possession required by the rule 
 
 Carolina — Terry v. Belcher, 1 Bailey, 568 ; Smith v. Henry, 2 Bailey 118. 
 Contra, Kennedy v. Boss, 2 Mills, 125 ; De Bardleben v. 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 a change of the possession. Smith v. Henry, 1 
 Hill (S. CO, 16 ; Anderson v. Fuller, 1 McMullan Ch. 27 ; Fullmore v. 
 Burrows, 2 Rich. Eq. 96 ; Jones v. Blake, 2 Hill Ch. 629. Georgia — 
 Butler v. Boll, Geo. Decis. Part I, 37 ; Peck v. Land, 2 Geo. 1 ; Carter 
 v. Stanfield, 8 Geo. 49. Alabama— Hobbs v. Bibb, 2 Stew. 54 ; Ayres v. 
 Moore, 2 Stew. 336 ; Martin 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 ; Moog v. Bendicks, 49 Ala. 
 512 ; Crawford v. Kirksey, 55 Ala. 282. Contra, Planters' Bank v. Bor- 
 land, 5 Ala. 531 ; Borland v. Mayo, 8 Ala. 104 ; Mauldin v. Mitchell, 14 
 Ala. 814 ; Millard v. Hall, 24 Ala. 209. Mississippi— Carter v. Graves, 
 7 Miss. 9; Bogard v. Gardley, 12 Miss.302; Rankin v. Holloway, 11 
 Miss. 614; Comstock v. Rayford, 9 Miss.' 423; s. c. 20 Miss. 369; Sum- 
 mers v. Roos, 43 Miss. 749 ; Jayne v. Dillon, 27 Miss. 283. Louisiana— 
 Keller v. Blanchard, 19 La. An. 53 ; Louisiana v. Baillio, 15 La. An. 555 ; 
 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 ; Zacharie v. Kirk, 14 La. An. 433. Texas — Bryant v. Kelton, 1 Tex. 
 415 ; Morgan v. Republic, 2 Tex. 279 ; McQuinnay v. Hitchcock, 8 Tex. 
 33 ; Converse v. McKee, 14 Tex. 20 ; Earle v. Thomas, 14 Tex. 583 ; 
 Gibson v. Hill, 21 Tex. 225. Arkansas— Field v. Simco, 7 Ark. 269; 
 Cocke v. Chapman, 7 Ark. 197 ; Stone v. Waggoner, 8 Ark. 204 ; George 
 v. Norris, 23 Ark. 121. Tennessee— Callen v. Thompson, 3 Terg. 475 ; 
 Darwin v. Handley, 3 Terg. 502 ; Young v. Pate, 4 Terg. 164 ; Grubbs 
 v. Greer, 5 Cold. 160. Contra, Ragan v. Kennedy, 2 Tenn. 91. Ohio— 
 Rogers v. Dare, Wright, 136 ; Burbridge v. Seely, Wright, 359 ; Horn- 
 beck v. Vanmetre, 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 ; Rose v. Colter, 76 Ind. 590. Wisconsin— Whitney v. 
 Brunette, 3 Wis. 621 ; Smith v. Welch, 10 Wis. 91 ; Bullis v. Borden, 21 
 Wis. 136; Bond v. Seymour, 1 Chand. 40; Sterling v. Ripley, 3 Chand. 
 166. Michigan— Jackson v. Dean, 1 Doug. 519 ; Molitor v. Robinson, 40 
 Mich. 200. Kansas— Phillips v. Reitz, 16 Kans. 396. Nebraska— Robin- 
 son v. Uhl, 6 Neb. 328 ; Densmore v. Tomer, 11 Neb. 118 ; Miller v. 
 Morgan, 11 Neb. 121. Minnesota— Braley v. Byrnes, 25 Minn. 297; 
 Molm v. Barton, 27 Minn. 530. United States— Warner v. Norton, 20 
 
POSSESSION. 113 
 
 is an actual, and not a merely constructive change. An 
 actual change, as distinguished from that which by the 
 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 possession of 
 the owner, as such, has wholly ceased. 1 The possession 
 of the vendor is always constructively the possession of 
 
 How. 448. Contra, Hamilton v. Russell, 1 Cranch, 309. Canada — 
 Hunter v. Corbett, 7 U. C. (Q. B.) 75. 
 
 Contka. — Vermont— Mott v. MeNiel, 1 Aik. 162; Weeks v. Wead, 2 
 Aik. 54 ; Fuller v. Sears, 5 Vt. 527 ; Durkee v. Mahoney, 1 Aik. 116 ; 
 Beattie v. Robin, 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. 130. Contra, Haven v. Low, 2 N. H. 
 13. The doctrine in this State rests upon the theory of a secret trust : 
 Coburn v. Pickering, 3 N. 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 v. Thompson, 9 Conn. 63 ; Crouch v. Carrier, 16 
 Conn. 505 ; Osborne v. Tuller, 14 Conn. 529. Pennsylvania— Babb v. 
 Clemsen, 10 S. & R. 419 ; Clow v. Woods, 5 S. & R. 275 ; Hoofsmith v. 
 Cope, 6 Whart. 53 ; Milne v. Henry, 40 Penn. 352 ; Eagle v. Eichelberger, 
 
 6 Watts, 29. Delaware — Bowman v. Herring, 4 Harring. 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. Carrol, 4 J. J. Marsh, 143 ; Waller v. 
 Todd, 3 Dana, 503 ; Wash v. Medley, 1 Dana, 269. Illinois— Rhines v. 
 Phelps, 8 111. 455 ; Thornton v. Davenport, 2 111. 296 ; Dexter v. Parkins, 
 22 111. 143 ; Ketchum v. Watson, 24 111. 591 ; Bay v. Cook, 31 111. 336 ; 
 Corgan v. Frew, 39 111. 31 ; Johnson v. Holloway, 82 111. 334 ; Lewis v. 
 Swift, 54 111. 436. Missouri— Claflin v. Rosenberg, 42 Mo. 439 ; s. C. 43 
 Mo. 593 ; Sibly v. Hood, 3 Mo. 290 ; Foster v. Wallace, 2 Mo. 231 ; King 
 v. Bailey, 6 Mo. 575. Contra, S. c. 8 Mo. 332 ; Shepherd v. 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, 38 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 v. Hussey, 
 1 Oregon, 188. This subject is regulated by statute in Delaware, Cali- 
 fornia, Nevada, and Missouri. 
 
 1 Cutter v. Copeland, 18 Me. 127. 
 
114 POSSESSION. 
 
 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. 1 When the 
 facts are uncontroverted, the question whether their effect 
 is to constitute an actual change of possession is a question 
 of law. 2 If the property* is left in the possession of the 
 vendor's agent, the change of possession is only construc- 
 tive. 3 If the vendee has possession of the property con- 
 jointly with the vendor, there is no actual change of 
 possession. 4 If the vendor was never the ostensible 
 owner, 5 or if the property was in the possession of an- 
 other, 8 then the omission to take possession raises no pre- 
 sumption of fraud. If there is a change within a reason- 
 able time after the sale, the transfer will be deemed valid. 7 
 But if a change of possession does not take place within a 
 reasonable time after the sale, a change prior to an execu- 
 tion is not sufficient to repel the presumption of fraud. 8 
 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 creditors of the first vendor. 9 
 It has been held that no presumption of a fraudulent 
 
 1 Hauford v. Artcher, 4 Hill, 271 ; s. c. 1 Hill, 347 ; Randall v. Parker, 
 3 Sandf. 69 ; Otis v. Sill, 8 Barb. 102 ; Grant v. Lewis, 14 Wis. 487 ; 
 Lesem v. Herriford, 44 Mo. 323 ; Osen v. Sherman, 27 Wis. 501 ; Burn- 
 ham v. Brennan, 42 K". Y. Sup. 49. 
 
 2 McCarthy v. McQuade, 31 N". Y. Sup. 387. 
 8 Brunswick v. McClay, 7 Neb. 137. 
 
 4 Osen v. Sherman, 27 Wis. 501. 
 
 5 Burling v. Patterson, 9 C. & P. 570. 
 
 • Smith v. Post, 3 N. Y. Supr^ 647. 
 
 'Allen v. Cowan, 23 "ST. Y. 502 ; S. o. 28 Barb. 99; Trieber v. An- 
 drews, 31 Ark. 163. 
 
 "Stimson v. Wrigley, 86 N. Y. 332; Dubeter v. Swartwood, 17 N - . Y. 
 Supr. 34. 
 
 • Lesem v. Herriford, 44 Mo. 323. 
 
POSSESSION. 115 
 
 intent arises where the sale took place before the debt 
 arose j 1 but this can not be so, for the natural tendency of 
 the retention of possession is to give the vendor a false 
 credit. 
 
 Burden op Proof. — 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 fraudu- 
 lent. 2 The burden is then thrown upon the vendee to 
 show, from all the circumstances surrounding the transac- 
 tion, its true character, in order to repel the presumption 
 of fraud, 3 and the evidence in explanation ought to be so 
 clear as to leave no room to doubt the fairness of the 
 sale. 4 If no evidence is given, the presumption becomes 
 conclusive. 5 
 
 Point 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 
 inquiry, therefore,, into the motives, reasons and causes 
 
 1 Knight v. Forward, 63 Barb. 311. 
 
 2 Kuykendall v. Hitchcock, i5 Mo. 416 ; Blant v. Gabler, 77 N. Y. 461. 
 
 3 Kuykendall v. Hitchcock, 15 Mo. 416 ; Davis v. Turner, 4 Gratt. 422 ; 
 Comstock v. Rayford, 20 Miss. 369 ; s. c. 9 Miss. 423 ; Mills v. Walton, 
 19 Tex. 271 ; Grant v. Lewis, 14 Wis. 487 ; McCarthy v. McQuade, 31 N. 
 Y. Supr. 387. 
 
 4 Smith v. Henry, 2 Bailey, 118; s. c. 1 Hill, 16 ; Davis v. Turner, 4 
 Gratt. 422 ; Jones v. Blake, 2 Hill Ch. 629. 
 
 5 Carter v. Graves, 7 Miss. 9 ; Carter v. Stanfleld, 8 Geo. 49 ; Beers v. 
 Dawson, 8 Geo. 556 ; Allen v. Cowan, 23 N. Y. 502 ; s. c. 28 Barb. 99 ; 
 Mayer v. Webster, 18 Wis. 393 ; State v. Smith, 31 Mo. 566 ; State v. 
 Rosenfield, 35 Mo. 472 ; Chatham v. Hawkins, 76 N. C. 335. 
 
116 POSSESSION. 
 
 for not changing the possession, is irrelevant so far as it is 
 designed to raise any distinct question for the determina- 
 tion of either the court or the jury. The true and sole 
 inquiry is, whether the presumption of fraud is repelled 
 by the evidence. 1 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 conviction that 
 the sale was honest and bona fide, and was not designed as 
 a mere trick to cover the property, should be submitted 
 to the jury. 3 No explanation can be more satisfactory 
 than that the possession was retained for a fair and honest 
 purpose. 3 There is no more satisfactory mode of disprov- 
 ing bad motives than by proving such facts as indicate the 
 existence of other motives, innocent at least, or even 
 laudable. 4 The intention of the parties, and the circum- 
 stances attending the transaction, may always be shown 
 in order to repel the presumption. 5 All facts or circum- 
 stances which to the common understanding and con- 
 science of men may prove, or on their face tend to prove 
 good faith, are accordingly within the rightful privilege of 
 the jury to hear and weigh. All facts, such as commonly 
 accompany and indicate good faith, ought to be permitted 
 to go to them. It is, therefore, proper to prove the pay- 
 ment of a valid and adequate consideration, the notoriety 
 of the transaction, the attending circumstances, the rela- 
 tion of the parties, the facts indicating a fair intent, 6 the 
 
 1 Stewart v. Slater, 6 Duer, 83. 
 
 5 Stoddard v. Butler, 20 Wend. 507, per Senator Dickinson. 
 
 3 Davis v. Turner, 4 Gratt. 422. "Smith v. Acker, 23 Wend. 653. 
 'Holmes v. Orane, 19 Mass. 607. 
 
 6 Cole v. White, 26 Wend. 511 ; s. c. 24 Wend. 116. 
 
POSSESSION. 117 
 
 reasonableness, as to amount, time, value and quantity of 
 property, the difficulty or inconvenience of removal, the 
 advantages of allowing it to remain, or any other circum- 
 stances agreeable with the ordinary course of business and 
 fair dealing, which may tend to rebut the presumption, 
 and satisfy the jury that there was not any intent to hin- 
 der, delay or defraud creditors. 1 All such proof of facts 
 is subject to the general rules of the law of evidence. 2 
 
 Consideration. — Whether proof of a consideration is 
 essential will depend upon circumstances. Title once 
 acquired by gift is not divested by the mere fact that the 
 donee does not immediately take the property into his 
 exclusive possession and appropriate it to his exclusive 
 use. 3 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 indispensable. 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 acknowledgment 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. 5 If 
 the consideration is nothing more than what in law is con- 
 sidered a valuable consideration, it will not be sufficient, 
 because a disproportion between the price paid and the 
 value, when unreasonable, is evidence of a secret trust and 
 
 1 Smith v. Acker, 23 Wend. 653 ; Callen v. Thompson, 3 Yerg. 475. 
 
 2 Cole v. White, 26 Wend. 511 ; S. 0. 24 Wend. 116. 
 
 3 Danley v. Kector, 10 Ark. 211. 
 
 4 Tift v. Barton, 4 Denio, 171 ; Curd v. Lewis, 7 Gratt. 185. 
 
 » Allen v. Cowan, 28 Barb. 99 ; s. o. 23 N. Y. 502 ; Hanford v. Artcher, 
 4 Hill, 271 ; s. c. 1 Hill, 347. 
 
118 POSSESSION. 
 
 creates a presumption of fraud. 1 Cases in which the ques- 
 tion 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 applicable in determining a question of 
 the fairness of a consideration between a vendee and cred- 
 itor under the statute concerning fraudulent conveyances. 
 What inadequacy 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 of degree of inadequacy which will avoid a 
 sale on the ground of fraud in a suit by a creditor against 
 the vendee. Courts will not weigh the value of the goods 
 sold and the price received in very nice scales, but, all 
 circumstances considered, there must be a reasonable and 
 fair proportion between the one and the other. 3 The pay- 
 ment of an adequate price for the property affords a strong 
 indication of good faith, and is a circumstance to weaken 
 the presumption ; but still this alone may not be incon- 
 sistent with the existence of a collusive design to impose 
 upon others. 3 Any intention to give the debtor a false 
 credit will vitiate the transaction, for transfers made for 
 the purpose of deceiving creditors are fraudulent. 4 
 
 Vendor's Means. — Evidence that the vendor at the 
 time of the sale had other property far more than suffi- 
 cient to pay all his debts, tends to rebut the presumption. 5 
 
 •Bryant v. Kelton, 1 Tex. 415; Kuykendall v. Hitchcock, 15 Mo. 
 416. Contra, Keller v. Blanchard, 19 La. An. 53. 
 
 5 Kuykendall v. Hitchcock, 15 Mo. 416 ; State v. Evans, 38 Mo. 150. 
 
 3 Smith v. Acker, 23 Wend. 653 ; Bryant v. Kelton, 1 Tex. 415 ; Rose 
 v. Colter, 76 Ind. 590. 
 
 * Holmes v. Crane, 19 Mass. 607 ; D'Wolf v. Harris, 4 Mason, 515 ; 
 s. c. 4 Pet. 147 ; Ross v. Crutsinger, 7 Mo. 245. 
 
 6 Rose v. Colter, 76 Ind. 590. 
 
POSSESSION. 119 
 
 Province of a Jury. — The whole circumstances should 
 be submitted to the jury, and from all parts of the trans- 
 action taken together, it should be determined whether the 
 transaction was or was not fraudulent in the concoction of 
 it. 1 If there is no proof to rebut the presumption, there 
 is nothing to be left to the jury to pass upon. 2 If there 
 is any evidence of good faith, the court, in submitting the 
 question, should instruct the jury that, because the pos- 
 session is not changed, the law presumes the transfer to 
 be fraudulent and void as against creditors, and casts the 
 burden of disproving fraud upon the person claiming under 
 it. 3 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 conclusive. 4 If the verdict is clearly erroneous, 
 the court may grant a new trial. 5 
 
 1 Haven v. Low, 2 ST. H. 13 ; Holmes v. Crane, 19 Mass. 607 ; Hol- 
 lacher v. O'Brien, 12 N. Y. Supr. 277 ; Kans. Pac. K. K. Co. v. Crouse, 
 17 Kans. 571. 
 
 s Tift v. Barton, 4 Denio, 171 ; Curd v. Lewis, 7 Gratt. 185. 
 
 8 Griswold v. Sheldon, 4 N. T. 580; Smith v. Welch, 10 Wis. 91; 
 Smith v. Henry, 2 Bailey, 118 ; s. c. 1 Hill, 16 ; Gibson v. Hill, 21 Tex. 
 225 ; Hartman v. Vogel, 41 Mo. 570. 
 
 4 Kuykendall v. Hitchcock, 15 Mo. 416 ; Morgan v. Bogue, 7 Neb. 429. 
 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 copartner, 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 principal. His failing to do so is mere 
 evidence of fraud. Cutter v. Copeland, 18 Me. 127. A sleigh purchased 
 in the summer may be left with the vendor till winter. Clute v. Fitch, 
 25 Barb. 428. 
 
 5 Vance v. Phillips, 6 Hill, 433 ; Dodd v. McCraw, 8 Ark. 83 ; Potter 
 v. I*ayne, 21 Conn. 361 ; Bandall v. Parker, 3 Sandf. 69. It is carrying a 
 distrust of juries too far to suppose them incapable, with the aid of a 
 wholesome prima facie presumption, to administer justice on this subject 
 in the true spirit of the statute. It is better to confine the interposition 
 
120 POSSESSION. 
 
 To what Transactions the Rule applies. — The 
 reason why the retention of possession raises a presump- 
 tion of fraud, is because it tends to deceive creditors by 
 giving 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, 1 
 mortgages, 2 especially after default, 3 deeds containing a 
 stipulation for the possession, 4 and sales under legal pro- 
 cess, 5 whether the purchase is by the plaintiff 6 or a third 
 
 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. 
 
 1 Stadtler v. Wood, 24 Tex. 622. 
 
 2 Hombeck v. Vanmetre, 9 Ohio, 153 ; Ryall v. Bolle, 1 Ves. 348 * 
 S. c. 1 Atk. 165 ; 1 Wils. 260 ; Miller v. Pancoast, 29 N. J. 250 ; Runyon 
 v. Groshon, 12 N. J. Eq. 86 ; Eveleigh v. Purrsford, 2 Mood. & Eob. 539 ; 
 Merrill v. Dawson, 1 Hemp. 563 ; s. c. 11 How. 375 ; Killough v. Steele, 
 1 Stew. & Port. 262. Contra, Mitchell v. Beal, 8 Terg, 134 ; Maney v. 
 Killough, 7 Yerg. 440 ; Gist v. Pressley, 2 Hill Ch. 318 ; Desha v. Scales, 
 6 Ala. 356 ; Cutter v. Copeland, 18 Me. 127 ; Snyder v. Hitt, 2 Dana, 
 204. 
 
 3 Maney v. Killough, 7 Yerg. 440 ; Bank v. Gourdin, Speers Ch. 439; 
 Shurtleff v. Willard, 36 Mass. 202 ; Bogard v. Gardley, 12 Miss. 302 ; 
 HanMns v. Ingolls, 4 Blackf. 35; Wiswall v. Ticknor, 6 Ala. 178; 
 Ravisies v. Alston, 5 Ala. 297 ; North v. Crowell, 11 N. H. 251 ; Stimson 
 v. Wrigley, 86 N. Y. 332. Contra, Fishburne v. Kunhardt, 2 Speers, 556. 
 
 4 Sommerville v. Horton, 4 Yerg. 541. 
 
 6 Gardinier 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, 16 Miss. 305 ; Woodworth v. Woodworth, 21 Barb. 
 343 ; O'Brien v. Chamberlain, 50 Geo. 285 ; Master v. Webb, 26 N. Y. 
 
POSSESSION. 121 
 
 person. 1 In all transactions of this kind, when a valuable 
 consideration is proved, the only question that remains is 
 one of good or bad faith. 2 The rule in regard to the reten- 
 tion of possession applies to choses in action as well as to 
 personal property, 3 especially if they are negotiable. 4 
 
 Possession of Land. — The rule that possession is pre- 
 sumptive evidence of fraud, does not apply to conveyances 
 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 a right to rely ; otherwise there would be no pro- 
 tection against secret or collusive transfers. But while 
 possession of land 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 
 
 Supr. 172 ; Betz v. Conner, 7 Daly, . 550. Contra, Garland v. Chambers, 
 19 Miss. 337 ; Poster v. Pugh, 20 Miss. 416 ; Ewing v. Cargill, 21 Miss. 
 79 ; Wyatt v. Stewart, 34 Ala. 716 ; Montgomery v. Kirksey, 26 Ala. 
 172; Guignard v. Aldrich, 10 Rich. Eq. 253. 
 
 6 Farrington v. Caswell, 15 Johns. 430 ; Gardinier v. Tubbs, 21 Wend. 
 169 ; Taylor v. Mills, 2 Edw. Ch. 318. 
 
 1 Fonda v. Gross, 15 Wend. 628 ; Breckenridge v. Anderson, 3 J. J. 
 Marsh. 710; Kilby v. Haggin, 3 J. J. Marsh. 208. 
 
 2 Latimer v. Batson, 4 B. & C. 652 ; Eveleigh v. Purrsford, 2 Mood. & 
 Rob. 539. The reason for the conflict among 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 of the courts losing sight of this fact, considered it as con- 
 stituting an exception to the rule of presumptive evidence. 
 
 8 Welsh v. Bekey, 1 Penna. 57 ; Woodbridge v. Perkins, 3 Day, 364 ; 
 Hall v. Redding, 13 Cal. 214 ; Currie v. Hart, 2 Sandf. Ch. 353 ; vide 
 Browning v. Hart, 6 Barb. 91 ; Livingston v. Littell, 15 Wis. 218. 
 
 4 Mead v. Phillips, 1 Sandf. Ch. 83. 
 
122 POSSESSION. 
 
 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. 1 But the posses- 
 sion of the grantor is proper to be submitted to the jury. 
 It must be taken, however, in connection with all the cir- 
 cumstances of the case. 2 Acts of ownership 3 or possession 
 for a long time 4 may raise a presumption of fraud. 
 
 Possession with Jus Disponendi. — The mere reten- 
 tion of possession of personal property is altogether dif- 
 ferent from the retention of possession accompanied with a 
 power to dispose of it for the grantor's own benefit. Such 
 a power is equivalent to a power of revocation. It enables 
 the vendor to defeat the transfer, and renders an instru- 
 ment in which it is cqntained null and void according to 
 the known principles of the common law. 5 The effect, 
 
 1 Byall v. Eolle, 1 Ves. 348 ; s. c. 1 Atk. 165 ; 1 Wils. 260 ; Clute v. 
 Newkirk, 46 N. Y. 684 ; Cadogan v. Kennett, 2 Cowp. 432 ; Suiter v. 
 Turner, 10 Iowa, 517 ; Steward v. Thomas, 35 Mo. 202 ; Hempstead v. 
 Johnson, 18 Ark. 123 ; Wooten v. Clarke, 23 Miss. 75 ; Noble v. Cole- 
 man, 16 Ala. 77 ; Barr v. Hatch, 3 Ohio, 527 ; Smith v. Lowell, 6¥.H. 
 67 ; Collins v. Taggart, 57 Geo. 355 ; Tompkins v. Nichols, 53 Ala. 199 ; 
 Apperson v. Burgett, 33 Ark. 328; Fuller v. Brewster, 53 Md. 358. 
 Contra, Peck v. Land, 2 Geo. 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 that the whole transaction, and not the transfer of the particular 
 lot retained, is fraudulent. Perkins v. Patten, 10 Geo. 241. 
 
 8 Steward v. Thomas, 35 Mo. 202 ; Barr v. Hatch, 3 Ohio, 527. 
 
 3 Smith v. Lowell, 6 N. H. 67 ; Hancock v. Horan, 15 Tex. 507. 
 
 4 Wooten v. Clarke, 23 Miss. 75 ; Noble v. Coleman, 16 Ala. 77. 
 
 6 Lang v. Lee, 3 Rand. 410 ; Addington v. Etheridge, 12 Gratt. 436. 
 
POSSESSION. 123 
 
 moreover, of such a power is to make the vendee hold the 
 property for the use of the vendor, and a conveyance to 
 the use of the grantor has always been deemed to be void 
 whether it is fraudulent or not. 1 It also enables the ven- 
 dor to hold himself out to the world as the owner, with 
 every outward indication of ownership of the property 
 which he so possesses and controls, and to obtain a false 
 credit by means of such apparent ownership. 2 Besides, if 
 such a transfer were held valid, it would enable the ven- 
 dor to sell the property as he sees fit, use the proceeds for 
 his own benefit, and exercise all the control and enjoy all 
 the advantages of absolute owner in defiance of his credi- 
 tors. It would enable him to hinder and delay them 
 as long as he and his confidential vendee might deem 
 proper. 3 Such a transfer is merely colorable, and operates 
 in the most effectual manner to ward off creditors. As 
 the legal effect of it is to delay, hinder and defraud credi- 
 tors, the law imputes to it a fraudulent purpose, without 
 regard to the actual motives of the parties. 4 
 
 Possession with Power to Sell in Mortgages. — The 
 power on the part of a mortgagor to sell and apply the 
 proceeds to his own use is inconsistent with the nature 
 and character of a mortgage. The object of such an 
 instrument 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 debtors 
 
 'Armstrong v. Tuttle, 34 Mo. 432; Spies v. Boyd, 1 E. D. Smith, 
 445 ; 11 Leg. Obs. 54 ; Brooks v. Wimer, 20 Mo. 503. 
 
 8 Edgell y. Hart, 9 N. Y. 213 ; s. C. 13 Barb. 380. In re Manly, 3 N. 
 B. B. 291 ; s. 0. 2 Bond, 261 ; Hilliard v. Cagle, 46 Miss. 309. 
 
 3 In re Kahley, 4 N. B. E. 378 ; s. O. 2 Biss. 383. 
 
 'Robinson v. Elliott, 11 N. B. R. 553 ; in re Manly, 3 N. B. R. 291 ; 
 s. c. 2 Bond, 261 ; Hilliard v. Cagle, 46 Miss. 309. 
 
124 POSSESSION. 
 
 being swept off by other creditors by fastening a 
 special lien upon that covered by the mortgage. But a 
 mortgage, with possession and power of disposition in the 
 mortgagor for his own benefit, is nothing at last but a reli- 
 ance 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 disposi- 
 tion of the whole property. Such a mortgage is no cer- 
 tain security upon specific property. It depends entirely 
 upon the honesty and good faith of the debtor. He may 
 dispose of it to creditors at will to satisfy his debts, and 
 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 property to pay other debts depends on 
 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 determine 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 exe- 
 cution creditor. The property, therefore, is not 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 property is taken on 
 execution, the mortgagee steps in and restores it to the 
 debtor. Such a mortgage 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 
 
POSSESSION. 125 
 
 off creditors. It is therefore fraudulent and void. 1 The 
 
 1 Griswold v. Sheldon, 4 N. Y. 580 ; Spies v. Boyd, 1 E. D. Smith, 
 445 ; s. o. 11 Leg. Ohs. 54 ; Carpenter v. Simmons, 1 Roht. 360 ; Shaw 
 v. Lowry, Wright, 190 ; Edgell v. Hart, 13 Barb. 380 ; s. o. 9 N. Y. 213 ; 
 Russell v. Winne, 37 N. Y. 591 ; s. c. 4 Abb. Pr. (N. S.) 384; Divver v. 
 McLaughlin, 2 Wend. 596 ; Wood v. Lowry, 17 Wend. 492 ; Lachlan v. 
 Wright, 3 Wend. 348 ; Mittnacht v. Kelley, 3 Abb. Ap. 301 ; Collins v. 
 Myers, 16 Ohio, 547 ; Harman v. Abbey, 7 Ohio St. 218 ; Milburn v. 
 Waugh, 11 Mo. 369 ; Brooks v. Wimer, 20 Mo. 503 ; Walter v. Wimer, 
 24 Mo. 63 ; Martin v. Maddox, 24 Mo. 575 ; Martin v. Rice, 24 Mo. 581 ; 
 Stanley v. Bunce, 27 Mo. 269 ; Billingsley v. Bunce, 28 Mo. 547 ; Lodge 
 v. Samuels, 50 Mo. 204 ; Tickner v. Wiswall, 9 Ala. 305 ; Johnson v. 
 Thweatt, 18 Ala. 741 ; Price v. Mazange, 31 Ala. 701 ; Constantine v. 
 Twelves, 29 Ala. 607 ; King v. Kenan, 38 Ala. 63 ; Lang v. Lee, 3 Rand, 
 410 ; Addington v. Etheridge, 12 Gratt. 436 ; Read v. Wilson, 22 111. 377 ; 
 Ranlett v. Blodgett, 17 N. H. 298 ; Bishop v. Warner, 19 Conn. 460 ; 
 Farmers' Bank v. Douglass, 19 Miss. 469 ; Place v. Longworthy, 13 Wis. 
 629 ; Welsh- v. Beckey, 1 Penna. 57 ; Reed v. Blades, 5 Taunt. 212 ; 
 Simpson v. Mitchell, 8 Yerg. 417 ; Doyl%v. Smith, 1 Cold. 15; Hickman 
 v. Perrin, 6 Cold. 135 ; Tennessee Nat. Bank v. Erbert, 9 Heisk. 153 ; 
 Bowen v. Clark, 5 A. L. Reg. 203 ; Harvey v. Crane, 5 N. B. R. 218 ; 
 s. c. 2 Biss. 496 ; Smith v. McLean, 10 N. B. R. 260 ; Robinson v. Elliott, 
 11 N. B. R. 553 ; s. o. 22 Wall. 513 ; Perry v. Shenandoah Bank, 27 
 Gratt. 755 ; Cator v. Collins, 2 Mo. Ap. 225 ; Garden v. Bodwing, 9 W. 
 Va. 121 ; Stein v. Munch, 24 Minn. 390; Overman v. Quick, 8 Biss. 734; 
 Harman v. Hoskins, 56 Miss. 142 ; Dunning v. Mead, 90 111. 376 ; Mann 
 v. Flower, 25 Minn. 500; Crooks v. Stuart, 7 Fed. Rep. 800 ; Synge v. 
 Synge, 4 Ir. Ch. 337; s. c. 3 Ir. Ch. 262 ; in re Asa Burrows, 7 Biss. 
 526; in re Erastus S. Bloom, 35 Leg. Int. 135 ; Johnson v. Patterson, 2 
 Woods, 443 ; vide Jones v. Huggeford, 44 Mass. 515 ; Briggs v. Park- 
 man, 43 Mass. 258 ; Codman v. Freeman, 57 Mass. 306 ; Googins v. Gil- 
 more, 47 Me. 9 ; Hughes v. Corey, 20 Iowa, 399 ; Jessup v. Bridge, 11 
 Iowa, 572; Wilhelmi v. Leonard, 13 Iowa, 330 ; Torbert v. Hayden, 11 
 Iowa, 435; Levy V.Welsh, 2Edw. Ch. 438; Stedman v.Vickery, 42 Me. 
 132 ; Gay v. Bidwell, 7 Mich. 519 ; Mitchell v. Winslow, 2 Story. 630; 
 Barnard v. Eaton, 56 Mass. 294; Oliver v. Eaton, 7 Mich. 108; Camp- 
 bell v. Leonard, 11 Iowa, 489 ; Benton v. Thornhill, 2 Marsh. 427 ; s. c. 
 7 Taunt. 149 ; Brinley v. Spring, 7 Me. 241 ; Abbott v. Goodwin, 20 Me. 
 408 ; Macomber v. Parker, 31 Mass. 497 ; s. o. 30 Mass. 175 ; Brett v. 
 Carter, 14 N. B. R. 301 ; Barron v. Morris, 14 N. B. R. 371 ; s. C. 2 
 Woods, 354 ; Eicks v. Copeland, 53 Tex. 581 ; Wait v. Bull's Head Bank, 
 19 N. B. R. 500. 
 
126 POSSESSION. 
 
 terms of the instrument, however, must plainly express 
 the right of mortgagor to dispose of the property, or the 
 implication must be a necessary one. 1 A mere stipulation 
 that property subsequently acquired shall be subject to the 
 mortgage does not render it void. 2 But if there is a power 
 to sell, a covenant to apply the proceeds towards replenish- 
 ing and keeping up the stock will not render the instru- 
 ment valid. 3 When there is a power to sell, the mortgage 
 is void although the mortgagee does not know that there 
 are any other creditors. 4 
 
 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 ani 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 arrangement makes the 
 instrument necessarily fraudulent, because it operates of 
 necessity to hinder, delay and defraud creditors, by secur- 
 ing to the debtor the use and benefit of his property and 
 its proceeds, while it protects it from levy and sale for the 
 
 1 Voorhis v. Langsdorf, 31 Mo. 451 ; Sleeper v. Chapman, 121 Mass. 
 404 ; Kalk v. Fielding, 50 Wis. 339. 
 
 s Codman v. Freeman, 57 Mass. 306 ; Gardner v. McEwen, 19 N. T. 
 123 ; Brinley v. Spring, 7 Me. 241 ; State v. Tasker, 31 Mo. 445 ; Voor- 
 his v. Langsdorf, 31 Mo. 451 ; State v. Byrne, 35 Mo. 147 ; Hickman v. 
 Perrin, 6 Cold. 135 ; Yates v. Olmstead, 56 N. T. 632. 
 
 3 Walter v. Wimer, 24 Mo. 63 ; Joseph v. Levi, 58 Miss. 843 ; Greene- 
 baum v. Wheeler, 90 111. 296. 
 
 'Holmes v. Marshall, 78 N. C. 262. 
 
POSSESSION. 127 
 
 payment of his debts. 1 It must be shown, however, that 
 sales made by the mortgagor were made with the know- 
 ledge or consent of the mortgagee, 2 but this may be inferred 
 from circumstances and the conduct of the parties. 3 The 
 substantial character of the transaction is the same whether 
 the agreement that the mortgagor may sell the goods be 
 made at the time of the execution of the mortgage or 
 immediately after. If the mortgagor continues to sell the 
 goods with the knowledge of the mortgagee, the mortgage 
 is void even though there was no express agreement to 
 that effect at the time of executing the mortgage. 4 A sale 
 by a mortgagor or vendor, when made contrary to the 
 
 ' Collins v. Myers, 16 Ohio, 547 ; Griswold v. Sheldon, 4 N. Y. 580 ; 
 Delaware v. Ensign, 21 Barb. 85 ; Freeman v. Rawson, 5 Ohio St. 1 ; 
 s. c. 4 A. L. Reg. 693 ; Russell v.Winne, 37 N. Y. 591'; s. c. 4 Abb. Pr. 
 (N. S.) 384 ; Robbins v. Parker, 44 Mass. 117 ; Gardner v. McEwen, 19 
 N. Y. 123 ; Marston v. Vultee, 12 Abb. Pr. 143 ; New Albany Ins. Co. 
 v. Wilcoxson, 21 Ind. 355 ; Howerton v. Holt, 23 Tex. 60 ; in re Kahley 
 el al. 4 N. B. R. 378, 2 Biss. 383 ; in re Manly, 3 N. B. R. 291 ; s. C. 2 
 Bond, 261 ; Barnet v. Fergus, 51 111. 352 ; Steinart v. Deuster, 23 Wis. 
 136 ; Ross v. Wilson, 7 Bush. 29 ; Catlin v. Currier, 1 Saw. 7 ; Smith v. 
 Ely, 10 N. B. R. 553 ; in re Samuel Cantrell, 6 Ben. 482 ; Jordan v. Tur- 
 ner, 3 Blackf. 309 ; Hilliard v. Cagle, 46 Miss. 309 ; Bishop v. Warner, 
 19 Conn. 460 ; Heuson v. Tootle, 72 Mo. 632 ; Nailer v. Young, 7 Lea. 
 755 ; Miller v. Jones, 15 N. B. R. 150 ; Hedman v. Anderson, 6 Neb. 
 392 ; Tallon v. Ellison, 3 Neb. 63 ; in re Wm. A. Foster, 18 N. B. R. 64 ; 
 State v. Jacobs, 2 Mo. Ap. 183 ; in re Asa Burrows, 7 Biss. 526 ; South- 
 ard v. Benner, 72 N. Y. 424; s. c. 7 Daly, 40; McCrassley v. Hasslock, 
 4 Baxter, 1 ; Weber v. Armstrong, 70 Mo. 217 ; Wagner v. Johns, 7 Daly, 
 375 ; Brackett v. Harvey, 32 N. Y. Supr. 502 ; King v. Hubbell, 42 Mich. 
 597. 
 
 2 Frost v. Warren, 24 N. Y. 204 ; Williston v. Jones, 6 Duer, 504 ; Sum- 
 mers v. Roos, 42 Miss. 749 ; Burgin v. Burgin, 1 Ired. 453 ; Sleeper v. 
 Chapman, 121 Mass. 404. 
 
 a Macdona v. Swiney, 8 Ir. Law, N. S. 73 ; Allen v. Smith, 10 Mass. 
 308 ; Archer v. Hubbell, 4 Wend. 514 ; Hankins v. Ingolls, 4 Blackf. 35 ; 
 Saunders v. Turbeville, 2 Humph. 272 ; Scott v. Winship, 20 Geo. 429 ; 
 Barkow v. Sanger, 27 Wis. 500. 
 
 4 Putnam v. Osgood, 52 N. H. 148. 
 
 9 
 
128 POSSESSION. 
 
 purpose for which the property is left in his possession, 
 will not vitiate the transfer. 1 If an article was left in the 
 mortgage by mistake, an oral agreement that the mort- 
 gagor may sell it will not vitiate the mortgage. 2 A mere 
 permission to sell inconsiderable portions of the property 
 in particular instances is merely a badge of fraud. 3 
 
 Power to Sell as Agent. — A mortgage containing a 
 stipulation that the mortgagor shall remain in possession 
 and sell the mortgaged property as agent of the mortgagee, 
 and account for the proceeds until the mortgage 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. 4 But if the pro- 
 ceeds arising from the sales are to be applied to the debt 
 only when collected, then the mortgage is void. 5 Whether 
 
 1 In re Kahley, 4 N. B. R. 378 ; S. c. 2 Biss. 383 ; in re Manly, 3 N". B. 
 R. 291; S. C. 2 Bond, 261. 
 
 ! Allen v. Kennedy, 49 Wis. 549. 
 
 8 Goodheart t. Johnson, 88 111. 58. 
 
 4 Hawkins v. Nat'l Bank, 1 Dillon, 462 ; s. c. 2 ST. B. R. 338 ; Miller 
 v. Lockwood, 32 N. Y. 293 ; Ford v. Williams, 13 N. Y. 577 ; s. c. 24 N". 
 Y. 359 ; Abbott v. Goodwin, 20 Me. 408 ; Melody v. Chandler, 12 Me. 
 282 ; Constantine v. Twelves, 29 Ala. 607 ; Chophard v. Bayard, 4 Minn. 
 533 ; Weaver v. Joule, 91 E. C. L. 309 ; s. o. 3 C. B. (N. S.) 309 ; Allen 
 v. Smith, 10 Mass. 308 ; Barker v. Hall, 13 N. H. 298 ; Conkling v. 
 Shelley, 28 N. Y. 360 ; Hickman v. Perrin, 6 Cold. 135 ; Pope v. Wilson, 
 7 Ala. 690 ; Brinley v. Spring, 7 Me. 241 ; Spence v. Bagwell, 6 Gratt. 
 444; Davis v. Ransom, 18 111. 396; Johnson v. Curtis, 42 Barb. 588; 
 Summers v. Roos, 42 Miss. 749 ; Adler v. Claflin, 17 Iowa, 89 ; Wiswall 
 v. Ticknor, 6 Ala. 178; Kleine v. Katzenberger, 20 Ohio St. 110; Farm- 
 ers' Bank v. Cowan, 2 Abb. Ap. 88 ; Ostrander v. Fay, 3 Abb. Ap. 431; 
 Vose v. Stickney, 19 Minn. 367; Goodheart v. Johnson, 88 111. 58; Crow 
 v. Red River Co. Bank, 52 Texas, 362 ; Overman v. Quick, 17 N". B. R. 
 255 ; vide Saunders v. Turbeville, 2 Humph. 272 ; Trabue v. Willis 
 Meigs, 583, note ; Bamford v. Baron, 2 T. R. 594, note ; in re Wm. D. 
 Forbes, 5 Biss. 510. 
 
 6 City Bank v. Westbury, 23 N. Y. Supr. 458 ; Brackett v. Harvey, 32 
 N. Y. Supr. 502 ; Ball v. Slafter, 33 N. Y. Supr. 353. 
 
POSSESSION. 1 29 
 
 the mortgagor may be allowed to retain any part of the 
 proceeds as a compensation for his services depends upon 
 the good faith of the arrangement and the amount so 
 retained. 1 
 
 Perishable Articles. — Articles in their nature subject 
 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. 2 If the articles, however, are per- 
 ishable and cannot be so kept, or if there is an under- 
 standing that they may be used and consumed by the 
 mortgagor, the mortgage is fraudulent and void. 3 Such 
 perishable articles may, however, be consumed when it is 
 for the benefit of the mortgagee rather than a favor to the 
 debtor, as, for instance, in the improvement, support or 
 sustenance of other property enumerated in the mortgage. 4 
 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. 5 The rule in regard to 
 perishable objects is limited to chattels that are transient 
 
 1 Frankhouser v. Ellett, 22 Kans. 127 ; vide Greenebaum v. Wheeler, 
 90 111. 296 ; Joseph v. Levi, 58 Miss. 843. 
 
 'Robbins v. Parker, 44 Mass. 117; Dewey v. Littlejohn, 2 Ired. Eq. 
 495 ; Charlton v. Lay, 5 Humph. 496 ; Cochran v. Paris, 11 Gratt. 348. 
 
 8 Sommerville v. Horton, 4 Yerg. 541 ; Trabue v. Willis, Meigs, 583, 
 note ; Wiley v. Knight, 27 Ala. 336 ; Farmers' Bank v. Douglass, 19 
 Miss. 469; Johnson v. Thweatt, 18 Ala. 741 ; Ravisies v. Alston, 5 Ala. 
 297 ; Gardner v. Johnston, 9 W. Va. 403 ; vide Elmes v. Sutherland, 7 
 Ala. 262. 
 
 4 Cochran v. Paris, 11 Gratt. 348 ; Dewey v. Littlejohn, 2 Ired. Eq. 
 495; Ravisies v. Alston, 5 Ala. 297; Planters & Merchants' Bank v. 
 Clarke, 7 Ala. 765 ; Sipe v. Earman, 26 Gratt. 563. 
 
 5 Cochran v. Paris, 11 Gratt. 348 ; Dewey v. Littlejohn, 2 Ired. Eq. 
 495. 
 
130 POSSESSION. 
 
 in their existence, or of such a nature that their only use 
 consists in their consumption. 1 
 
 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, applies 
 only to conditional, and not to absolute sales ; 2 but this is 
 manifestly not true, for such a transfer is merely colorable. 3 
 What will be the effect of a delivery of the possession to 
 the vendee or mortgagee, is a question that can not be 
 considered as yet settled. In one case the change took 
 jplace before the term of credit allowed by the mortgage 
 expired, and it was held that the mortgage was valid, for 
 the parties thereby purged the instrument of the fraudu- 
 lent provision. 4 In another case the mortgage was held 
 valid against a claim which arose after the mortgagee 
 took possession of the property. 5 But the weight of 
 authority is that the transaction will not be rendered valid 
 by taking possession before the levy of an execution. 8 If 
 the mortgagor, however, delivers the property to the mort- 
 gagee to sell and pay the debt out of the proceeds, the last 
 transfer is valid. 7 
 
 1 Shurtleff v. Willard, 36 Mass. 202. 2 Grubbs v. Greer, 5 Cold. 160. 
 
 8 Paget v. Perchard, 1 Esp. 205. 4 Brown v. Piatt, 8 Bosw. 324. 
 
 6 Williston v. Jones, 6 Duer, 504. 
 
 6 Robinson v. Elliott, 22 Wall. 513 ; in re Wm. D. Forbes, 7 Biss. 
 510 ; Smith v. Ely, 10 N. B. R. 553 ; Dutcher v. Swartwood, 22 N. Y. 
 Supr. 31 ; Stein v. Munch, 24 Minn. 390. Contra, Rowley v. Rice, 52 
 Mass. 333 ; Read v. Wilson, 22 111. 377 ; Summers v. Roos, 42 Miss. 749 ; 
 Foster v. Saco Manuf. Co., 29 Mass. 451. 
 
 "First Nat'l Bank v. Anderson, 24 Minn. 435. 
 
 Note.— The doctrine in the text is laid down according to the prin- 
 ciples 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 deci- 
 
POSSESSION. 131 
 
 sions under them, than a stranger. The work, however, would not be 
 complete without 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 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 Caro- 
 lina, Georgia, Indiana, Kentucky, Missouri, Michigan, Kansas, 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, 3 H. & J. 499 ; Hambleton v. Hayward, 
 4 H. & J. 443 ; Bogard v. Gardley, 12 Miss. 302 ; Harrington v. Brittain, 
 23 Wis. 541 ; Mster v. Beall, 1 H. & J. 31 ; Smith v. McLean, 24 Iowa, 
 322; Hughes v. Corey, 20 Iowa, 399; Kuhn v. Graves, 9 Iowa, 303; 
 Barker v. Hall, 13 N. H. 298 ; Call v. Gray, 37 N. H. 428 ; Frankhouser 
 v. Ellet, 22 Kans. 27. When there is a change of possession (Minister 
 v. Price, 1F.&F. 686 ; Gough v. Everard, 2 H. & C. 1 ; s. c. 32 L. J. Ex. 
 210 ; S. o. 8 L. T. (N. S.) 263 ; 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, 67), the instrument 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, however, will not 
 give validity to an instrument that is tainted with fraud. Garrett v. 
 Hughlett, 1 H. & J. 3 ; Robinson v. Elliott, 11 N. B. K. 553 ; in re 
 Manly, 3 N. B. R. 291 ; S. C. 2 Bond, 261. 
 
CHAPTER VI. 
 
 WHEN POSSESSION IS FRAUD PER SE. 
 
 The retention of possession has thus far been consid- 
 ered 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 examina- 
 tion of this subject. It is impossible, however, to give 
 more than a general outline, for the rule that the reten- 
 tion of possession is fraud per se is conceded to be merely 
 one of policy, and hence it varies in its application in each 
 State, being rigid in some and lax in others. It, there- 
 fore, can not be said that this general outline is true in 
 every particular as applied to any one State, but it merely 
 gives the principles which are generally accepted. 
 
 Nature 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, 1 and rests upon the doc- 
 trine that fraud is in all cases a question of law. 2 Although 
 a valuable consideration may be paid, and the real intent 
 of the parties may be to transfer the property, yet the 
 possession continuing 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 
 
 1 Wilson v. Hooper, 12 Vt. 653 ; Mills v. Camp, 14 Conn. 219 ; Kirt- 
 land v. Snow, 20 Conn. 23. 
 
 8 Weeks v. Wead, 2 Aik. 64 ; Milne v. Henry, 40 Penn. 352 ; Sturte- 
 vant v. Ballard, 9 Johns. 337 ; Planters' Bank v. Borland, 5 Ala. 531. 
 
WHEN POSSESSION IS FRAUD PER SE. 133 
 
 void as to creditors, though there may be no fraud, in 
 fact, in the transaction. 1 The rule excludes all regard to 
 the actual intentions of the parties in every transaction 
 that comes within its range. 2 The inference arising from 
 the possession can not be rebutted or repelled even by the 
 strongest testimony of the actual fairness of the intention 
 of the parties. 3 Hence, it is immaterial whether the 
 vendee was party or privy to any fraudulent intention of 
 the vendor or not/ 
 
 Character of Delivery. — The vendor must deliver to 
 the vendee possession of the property in order to consum- 
 mate the sale and render it valid as against creditors. 
 The delivery must be actual, and such as the nature of 
 the property and the circumstances of the sale will reason- 
 ably 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 actual separation of the property from the possession 
 of the vendor at the time of the sale, or within a reason- 
 able time afterwards, according to the nature of the 
 property. 5 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 deliv- 
 ery is of itself a fraud, because it appears on the face of 
 
 1 Weeks v. Wead, 2 Aik. 64; Milne v. Henry, 40 Penn. 352. 
 
 2 Wilson v. Hooper, 12 Vt. 653. 
 
 3 Land v. Jeffries, 3 Band. 211 ; s. c. 599 ; Hundley v. Webb, 3 J. J. 
 Marsh. 643. 
 
 4 King v. Bailey, 6 Mo. 575. 
 
 - Billingsley v. White, 59 Penn. 464. 
 
134 WHEN POSSESSION IS FRAUD PER SE. 
 
 the transaction that the delivery is merely colorable. 1 
 Actual possession is used in contradistinction to construc- 
 tive possession, which is incident of, and dependent on, 
 right and title. 2 The possession of every vendor, after a 
 sale, is constructively the possession of the vendee; the 
 possession of an agent is constructively the possession of 
 the principal. Such a change, however, is not sufficient. 
 The vendee cannot make the vendor his agent and then 
 rely upon his constructive possession. 3 
 
 Change must be Continuous. — The word actual also 
 excludes the idea of a mere formal change of the posses- 
 sion. 4 It is not sufficient that the vendor gives to the 
 vendee a delivery, which may be symbolical 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 possession which the rule 
 requires. There must be not only a delivery, but a con- 
 tinuing possession. 5 The possession 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 
 
 1 Cunningham v. Neville, 10 S. & R. 201 ; Brawn v. Keller, 43 Penn. 
 104 ; 3 Grant, 237. 
 
 5 Woods v. Bugbey, 29 Cal. 466. 
 
 8 Stoddard v. Butler, 20 Wend. 507 ; s. c. 7 Paige, 163 ; 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 ; Bentz v. Riley, 69 Penn. 71 ; Thompson v. Wilhite, 81 111. 
 356. 
 
 4 Stevens v. Irwin, 15 Cal. 503. 
 
 6 Young v. McClure, 2 W. & S. 147 ; Streeper v. Eckart, 2 Whart. 
 302 ; Goldsbury v. May, 1 Litt. 254 ; Breckenridge v. Anderson, 3 J. J. 
 Marsh. 710; McBride v. McClelland, 6 W. & S. 94; Miller v. Garrnan, 
 69 Penn. 134 ; Miller v. Garman, 2 Pearson, 91. 
 
WHEN POSSESSION IS FRAUD PER SE. 135 
 
 to the debtor. 1 The delivery must be made of the 
 property; the vendee must take the actual possession; 
 the possession must be open and unequivocal, carrying 
 with it the usual marks and indications of ownership by 
 the vendee. It must be accompanied with such unmis- 
 takable acts of control and ownership as a prudent bona 
 fide purchaser would do in the exercise of his rights over 
 the property, so that all persons may have notice that he 
 owns and has possession of the property 2 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 sub- 
 stantial. 3 It is not necessary that a change of possession 
 should at all times accompany »the transfer. If it follows 
 within a reasonable time thereafter, that is, as soon as 
 the nature of the property and the circumstances attending 
 the transfer will admit, it is sufficient. 4 What is a reason- 
 able time must be determined according to the circum- 
 stances of each particular case. 5 It does not, however, 
 depend upon the convenience of the vendee, but upon the 
 
 1 Pierce v. Chipman, 8 Vt. 334. * 
 
 2 Lay v. Neville, 25 Cal. 545; Cutting v. Jackson, 56 N. H. 253. 
 
 3 Stevens v. Irwin, 15 Cal. 503; Engles v. Marshall, 19 Cal. 320; 
 Mead v. Noyes, 44 Conn. 487. 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, 
 and 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 expression 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. Eobinson, 24 Penn. 9. 
 
 4 Carpenter v. Mayer, 5 Watts, 483; Smith v. Stern, 17 Penn. 360; 
 State v. King, 44 Mo. 238 ; Mc Vicker v. May, 3 Penn. 224 ; Barr v. 
 Reitz, 53 Penn. 256; McFarlan v. English, 74 Penn. 296. 
 
 6 Bishop v. O'Connell, 56 Mo. 158. 
 
136 WHEN POSSESSION IS FRAUD PER SE. 
 
 time fairly required to perform the act of taking posses- 
 sion or doing what is equivalent. 1 A delay of four or six 
 days is not material, if the property has not in the mean- 
 time been seized on legal process. 2 
 
 Question of Law. — The rule does not determine what 
 acts shall constitute a delivery and continued change of 
 possession. 3 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. 4 The question of change of posses- 
 sion is purely one of law, and as such is to be decided by 
 the court. The court must judge of those acts which are 
 sufficient evidence of delivery. 5 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. 6 
 When there is no proof to show that possession accom- 
 panied and followed the transfer, the court instructs the 
 jury that the sale is fraudulent. 7 When, however, there 
 is any evidence tending to prove a change of possession, 
 the question must be submitted to the jury. 8 The 
 
 1 Seymour v. O'Keefe, 44 Conn. 128. 
 
 5 McVicker v. May, 3 Penn. 224 ; Barr v. Reitz, 53 Penn. 256. 
 
 3 Godchaux v. Mulford, 26 Cal. 316. 
 
 4 Burrows v. Stebbins, 26 Vt. 659. 
 
 6 Cadbury v. Nolen, 5 Penn. 320 ; Burrows v. Stebbins, 26 Vt. 659 ; 
 contra, Lake v. Morris, 30 Conn. 201. 
 
 6 Young v. McClure, 2 W. & S. 147 ; Carpenter v. Mayer, 5 Watts, 
 483 ; Milne v. Henry, 40 Penn. 352. 
 
 1 Young v. McClure, 2 W. & S. 147 ; Dewart v. Clement, 48 Penn. 
 413. In Connecticut the question is submitted to the jury as a question 
 of fact, with instructions that if they find none of the established excep- 
 tions, they will find the transaction fraudulent. Swift v. Thompson, 9 
 Conn. 63 ; Howe v. Keeler, 27 Conn. 538. 
 
 8 Warner v. Carlton, 22 111. 415 ; Stephenson v. Clark, 20 Vt. 624 ; 
 Chamberlain v. Stern, 11 Nev. 268. 
 
WHEN POSSESSION IS FRAUD PER SE. 137 
 
 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 possession. 1 When 
 there is a conflict of testimony in regard 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 usurpation of the rights of the jury. 2 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 
 a sufficient change of possession. 3 The rule is no reason 
 for excluding the evidence of the transfer. It is the judg- 
 ment of the law upon the evidence, and not a ground to 
 exclude evidence. 4 
 
 Joint Possession. — Possession is the visible control of 
 and dominion over the goods. 5 If the vendee has such a 
 possession it is sufficient. A concurrent possession of the 
 vendor with the vendee, 6 or with an agent of the vendee, 7 
 is not such a substantial change as the rule requires. Such 
 a possession is merely colorable. The reason why posses- 
 sion must be changed is to announce a change of owner- 
 ship, and prevent the former owner from gaining a credit 
 by his possession. Consequently the possession and use 
 
 1 McKibbin v. Martin, 64 Penn. 352. 
 
 2 Forsyth v. Matthews, 14 Penn. 100 ; Wilson v. Hooper, 12 Vt. 653 ; 
 Hodgkins v. Hook, 23 Cal. 581. 
 
 a Burrows v. Stebbins, 26 Vt. 659 ; Stephenson v. Clark, 20 Vt. 624. 
 
 4 Sherron v. Humphreys, 14 N. J. 217. 
 
 6 Ludlow v. Hurd, 19 Johns. 218. 
 
 6 Wordall v. Smith, 1 Camp. 332 ; Babb v. Clemson, 10 S. & E. 419 ; 
 Boyd v. Dunlap, 1 Johns. Ch. 478 ; Stiles v. Shumway, 16 Vt. 435 ; Wal- 
 ler v. Cralle, 8 B. Mon. 11; Miller v. Garman, 69 Penn. 134; Eegli v. 
 McClure, 47 Cal. 612. 
 
 ' Neate v. Latimer, 2 Y. & C. 257 ; Wordall v. Smith, 1 Camp. 332 ; 
 Babb v. Clemson, 10 S. & R. 419. 
 
138 WHEN POSSESSION IS FRAUD PER SE. 
 
 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. 1 What given state of facts constitutes a concur- 
 rent possession is a question of law. 2 A concurrent posses- 
 sion is a mixed or uncertain possession apparently as much 
 in one as in the other. There may be a concurrent pos- 
 session, although there is no part ownership in the prop- 
 erty. The possession is concurrent where the control and 
 use of the property by the vendor and vendee are so con- 
 fused and mixed as to leave the question of possession un- 
 certain. 3 In order to constitute a concurrent possession it 
 is not necessary that the person in actual possession shall 
 have some interest in the property as part owner. 4 If the 
 possession does not amount to a joint possession the trans- 
 fer 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. 5 It is import- 
 ant, therefore, to ascertain what facts are essential to pre- 
 vent the possession from being joint. 
 
 Character of the Change. — Separation of the prop- 
 erty from the possession of the vendor implies nothing 
 more than a change of the vendor's relation to it as owner, 
 and consists in the surrender and transfer of his power 
 and control over it to the vendee ; but in order to prevent 
 
 1 Allen v. Edgerton, 3 Vt. 442 ; Hall v. Parsons, 15 Vt. 358 ; s. C. 17 
 Vt. 271 ; Wilson v. Lott, 5 Fla. 305. 
 
 8 Hall v. Parsons, 15 Vt. 358 ; s. 0. 17 Vt. 271. 
 
 * Worman v. Kramer, 73 Penn. 378. 
 4 Worman v. Kramer, 73 Penn. 378. 
 
 * Archer v. Hubbell, 4 Wend. 514. 
 
WHEN POSSESSION IS FRAUD PER SE. 139 
 
 fraud, the rule requires that this shall be done by such 
 appropriate significant acts as shall clearly show the ven- 
 dor's intention to part with the possession of the property 
 and transfer it to the vendee. 1 There must be a complete 
 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 unequivocally 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 had taken place. 2 The act must be so open and 
 manifest as to make the change of possession apparent and 
 visible. 3 
 
 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 appearances 
 would indicate to an observer that there has been a 
 change. 4 The appearances must indicate such a divesting 
 of the possession of the vendor as any man knowing the 
 facts which are ascertainable, would be bound to know 
 
 1 Billingsley v. White, 59 Perm. 464; State v. Schulein, 45 Mo. 521. 
 8 Claflin v. Bosenberg, 42 Mo. 439 ; 43 Mo. 593 ; Burgert v. Borchert, 
 59 Mo. 80 ; Mills v. Thompson, 72 Mo. 367. 
 8 Billingsley v. White, 59 Penn. 464. 
 4 Stanley v. Bobbins, 36 Vt. 422 ; Weeks v. Prescott, 53 Vt. 57. 
 
140 WHEN POSSESSION IS FRAUD PER SE. 
 
 and understand as the result of change of ownership. 
 They must be such as he could not reasonably misappre- 
 hend. 1 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 presume 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 possession. If there is such a changa, a 
 careful observer will not be at a loss to determine who 
 owns and has possession of the property. If it is doubts 
 ful, 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 suf- 
 ficient if they carefully observe. 2 
 
 Employment of Vendee. — If there are such palpable 
 tokens and proofs of the vendor's surrender of his dominion 
 over the property as owner, and of the transfer of his 
 possession to the vendee, the sale will not be declared 
 fraudulent in law, although the vendor may act as the 
 agent or servant of the vendee in the management and 
 disposal of the property, provided that his acts are pro- 
 fessedly and apparently done,- not as owner, but as the 
 agent or servant of the vendee, and are so understood by 
 those with whom he deals. Such employment of the ven- 
 dor in a subordinate capacity is colorable only, and not 
 conclusive upon the question as to whether there has been 
 an immediate delivery and an actual change of the posses- 
 sion. He cannot be allowed to remain with apparently 
 sole and exclusive possession of the goods after the sale, 
 
 1 Stephenson v. Clark, 20 Vt. 624 ; Parker v. Kendricks, 29 Yt. 388. 
 8 Flanagan v. Wood, 33 Vt. 332. 
 
WHEN POSSESSION IS FRAUD PER SE. 141 
 
 for that would be inconsistent 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 apparent 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 prin- 
 cipal 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. 1 If the change of pos- 
 session is otherwise sufficiently shown, the mere fact of 
 such agency is not, and never has been held to render the 
 sale invalid. 2 The omission to change the sign on a store 
 is not conclusive. 3 Nor is a mere change of the sign suf- 
 ficient. 4 It is not necessary that the vendor shall be at all 
 times in the store, 6 but he must do something more than 
 make occasional visits. 6 The same clerks may be em- 
 ployed, and it is immaterial where they board, 7 but they 
 
 1 Godchaux v. Mulford, 26 Cal. 316 ; Bird v. Andrews, 40 Conn. 542. 
 
 " Billingsley v. White, 59 Penn. 464 ; State v. Schulein, 45 Mo. 521 ; 
 Claflin v. Rosenberg, 42 Mo. 439 ; s. 0. 43 Mo. 493 ; McKibbin v. Martin, 
 64 Penn. 352 ; Hugus v. Robinson, 24 Penn. 9 ; Dunlap v. Boumonville, 
 26 Penn. 72 ; England v. Insurance Co., 6 La. An. 5 ; Weil v. Paul, 22 
 Cal. 492 ; Godchaux v. Mulford, 26 Cal. 316 ; Warner v. Carlton, 22 111. 
 415 ; Powers v. Green, 14 111. 386 ; Stevens v. Irwin, 15 Cal. 503 ; Hall 
 v. Parsons, 15 Vt: 358 ; s. c. 17 Vt. 271 ; Wilson v. Lott, 5 Fla. 305 ; 
 Talcott v. Wilcox, 9 Conn. 134. 
 
 3 Seavy v. Dearborn, 19 N. H. 351 ; Hugus v. Robinson, 24 Penn. 9 ; 
 Read v. Wilson, 22 El. 377 ; vide Wright v. McCormick, 67 Mo. 426 ; 
 Stern v. Henley, 68 Mo. 262 ; Peirce v. Merritt, 70 Mo. 275. 
 
 4 Potter v. Payne, 21 Conn. 361. 
 
 5 Billingsley v. White, 59 Penn. 464. 
 • Eckfeldt v. Frick, 4 Phila. 116. 
 
 'Hall v. Parsons, 15 Vt. 358; s. C. 17 Vt. 271 ; Ivaneovich v. Stern, 
 14 Nev. 341. 
 
142 WHEN POSSESSION IS FRAUD PER SE. 
 
 cannot be employed and paid by the vendor, although he 
 does it at the request of the vendee, 1 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. 2 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. 3 
 
 When Employment of Vendor is Fraudulent. — In 
 such cases of concurrent possession, it is a question for the 
 jury whether the change of possession has been actual and 
 hona 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. 4 The 
 vendor may, however, become a member of the firm which 
 purchases the property, 5 or act as agent for the owner of 
 an undivided half of the property. 8 The vendee can not 
 employ the former agent of the vendor, and then hire the 
 property to the vendee, 7 but the vendor may be employed 
 to use the property in the business of the vendee. 8 One 
 
 ■ Parker v. Kendricks, 29 Vt. 388. 
 
 4 Trask v. Bowers, 4 N. H. 309 ; Allen v. Edgerton, 3 Vt. 442 ; Eck- 
 feldt v. Frick, 4 Phila. 116. 
 
 » Allen v. Edgerton, 3 Vt. 442 ; Hall v. Parsons, 15 Vt. 358 ; s. C. 17 
 Vt. 271. 
 
 4 McKibbinv. Martin, 64Penn. 352. 
 
 6 Utley v. Smith, 24 Conn. 290. • Pier v. Duff, 63 Penn. 59. 
 
 7 Hurlburd v. Bogardus, 10 Cal. 518. 8 Brown v. Riley, 22 111. 45. 
 
WHEN POSSESSION IS FRAUD PER SE. 143 
 
 partner may purchase the interest of his copartner in the 
 firm property and employ him in the business, for where 
 the possession is joint, no other change can take place. 1 
 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 possession 
 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. 3 The 
 deed, however, simply conveys the legal right of posses- 
 sion, 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. 4 Consequently, a mere 
 surrender of a lease, which the vendor holds as tenant, to 
 the vendee is not sufficient. 5 Where the vendor and 
 vendee remain in the joint possession of the land, if the 
 possession of the vendee is apparently that of a joint 
 
 f Criley v. Vasel, 52 Mo. 445. 
 
 2 Cameron v. Montgomery, 13 S. & R. 128. 
 
 8 Stephenson v. Clark, 20 Vt. 624. 
 
 4 Flanagan v. Wood, 33 Vt. 332 ; Rockwood v. Collamer, 14 Vt. 141 ; 
 Weeks v. Prescott, 53 Vt. 57 ; Myers v. Woods, 1 Phila. 24 ; Lawrence 
 v. Burnham, 4 Nev. 361 ; Cahoon v. Marshall, 25 Cal. 197 ; Bishop v. 
 O'Connell, 56 Mo. 158 ; vide Smith v. Skeary, 47 Conn. 47 ; Elmer v. 
 Welch, 47 Conn. 56. 
 
 5 Steelwagon v. Jeffries, 44 Penn. 407 ; Kirtland v. Snow, 20 Conn. 
 23 ; Stiles v. Shumway, 16 Vt. 435. 
 
 10 
 
144 WHEN POSSESSION IS FRAUD PER SE. 
 
 owner, and there is no actual and exclusive possession of 
 the personal property by the vendee, the personal property 
 on the land will be deemed to be in their joint possession. 1 
 But where the vendee has a visible and notorious posses- 
 sion, a surrender of a lease will enable him to obtain' a 
 valid title, although the vendor remains on the land. 3 
 Taking a lease is some evidence of a change of possession, 3 
 but not sufficient. 4 In such case there must be some 
 change in the mode and manner of occupying the premises. 
 Upon a sale of wheat in the ground, the vendee may, how- 
 ever, lease the farm and employ the vendor as his agent. 5 
 Possession need not be taken of a windmill attached to the 
 land, when both the land and the windmill are conveyed 
 by a mortgage. 6 The constructive possession of the land 
 is sufficient 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, 7 but secrecy will vitiate such a 
 transaction. 8 When an agent sells goods to his principal 
 which are already upon the principal's land, there need be 
 no other change of possession, for the law will refer the 
 possession to the principal in whom the property now is, 
 and in whom the possession apparently was before. 9 
 Where the vendee owns a farm, and goes to live with the 
 
 1 Flanagan v. Wood, 33 Vt. 332. 
 
 2 Talcott v. Wilcox, 7 Conn. 134. 
 
 3 Conway v. Edwards, 6 Nev. 190. 
 
 * Flanagan v. Woods, 33 Vt. 332 ; Grum v. Barney, 55 Cal. 254. 
 « Hereon v. Fry, 2 Penna. 263. 
 
 • Steward v. Lombe, 1 Brod. & B. 506. 
 
 ' Lewis v. Wnittemore, 5 N. H. 364 ; Wright v. Grover, 27 111. 426 ; 
 Visher v. Webster, 13 Cal. 58. 
 
 8 Trask v. Bowers, 4 N. H. 309 ; Stephens v. Barnett, 7 Dana, 257. 
 
 9 Manton v. Moore, 7 T. R. 67. 
 
WHEN POSSESSION IS FRAUD PEE SE. 145 
 
 vendor upon it, and the vendor works it upon shares, and 
 has the sole conduct of the business, the change is not 
 sufficient; 1 but the vendee may purchase land, and the 
 personal property upon it, and employ the vendor as over- 
 seer, 2 or as agent, 3 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. 4 If the vendee owns the house in which 
 the goods are, and has the control and management 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. 5 A party who engages an- 
 other to manufacture articles for him on his own premises, 
 has sufficient possession of them as soon as they are manu- 
 factured. 6 A steam-engine may be left on the premises, in 
 the charge of an agent, and used by the vendee. 7 A man 
 may have the exclusive possession of personal property 
 which is upon land occupied by him and the vendor in 
 common. 8 If the vendee owns the land, 9 or leases the 
 house 10 where the property is placed, it is sufficient if the 
 vendor removes from it.. But a removal of the vendor 
 with the property to a hotel kept by the vendee is not 
 sufficient. 11 Wherever the constructive possession of land 
 has been considered of any importance, there have been 
 
 1 Mills v. Warner, 19 Vt. 609. 2 Wilson v. Lott, 5 Fla. 305. 
 
 3 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. 
 • Partridge v. Wooding, 44 Conn. 277. 
 ' Funk v. Staats, 24 111. 632. 
 
 8 Potter v. Mather, 24 Conn. 551 ; vide Hoffber v. Clark, 5 Whart. 
 545 ; Brawn v. Keller, 43 Penn. 104 ; S. c. 3 Grant, 237. 
 
 'Pacheco v. Hunsacker, 14 Cal. 120 ; Sharon v. Shaw, 2 Nev. 289. 
 " Barr v. Beitz, 53 Penn. 256. 
 " Myers v. Woods, 1 Phila. 24. 
 
146 WHEN POSSESSION IS FRAUD PER SE. 
 
 both delivery and acts of dominion over the property 
 upon it. 
 
 Where the Rule does not Apply. — The rule does not 
 apply to sales of property which is exempt from execu- 
 tion, 1 or to sales of partnership property, as against the 
 creditors of one of the partners, because they can not levy 
 upon the partnership property. 2 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 remitted to his pre-existent 
 rights under the mortgage. 3 
 
 Exchanges. — When an exchange is made by the 
 vendor, without thq concurrence of or consultation with 
 the vendee, no distinction can be allowed between the 
 article received and the one for which it is substituted. 4 
 But if the vendee makes the exchange, the possession of 
 the vendor will not render the property liable to his 
 creditors although the vendee makes the exchange through 
 the vendor as his agent. 5 If the property 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 
 
 1 Anthony v. Wade, 1 Bush. 110 ; Morton v. Ragan, 5 Bush. 334 ; 
 Foster v. McGregor, 11 Vt. 595 ; Patten v. Smith, 5 Conn. 196 ; s. c. 4 
 Conn. 450. 
 
 5 Page v. Carpenter, 10 N. H. 77 ; Criley v., Vasel, 52 Mo. 445. 
 
 8 Daniel v. Morrison, 6 Dana, 182; s. c. 6 J. J. Marsh. 398. Contra, 
 Clayborn v. Hill, 1 Wash. (Va.) 177. 
 
 4 Mills v. Warner, 19 Vt. 609. 
 
 8 Lucas v. Birdsey, 41 Conn. 357 ; Capron v. Porter, 43 Conn. 283. 
 
WHEN POSSESSION IS FRAUD PER SE. 147 
 
 are put at once upon inquiry as to the origin of the title. 1 
 The rule does, however, apply to the chattel's offspring. 3 
 
 Possession by Feme Covert. — The possession of the 
 wife is the possession of the husband, 3 but there is no case 
 where the possession of the husband after marriage 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. 4 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 under 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 pos- 
 session 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 con- 
 ceded to him by the common law, over his wife and over 
 the use of property in her possession. 5 When there is no 
 proof that the property in the possession of the husband is 
 
 1 Ridout v. Burton, 27 Vt. 383. 2 Mott v. McNeil, 1 Aik. 162. 
 
 3 King v. Bailey, 6 Mo. 575. 
 
 4 Land v. Jeffries, 5 Band. 599, 211 ; Prior v. Kinney, 6 Munf. 510. 
 
 5 Chiles v. Bernard, 3 Dana, 95 ; Leonard v. Baker, 1 M. & S. 251. 
 
148 WHEN POSSESSION IS FRAUD PER SE. 
 
 an acquisition from the wife's own money or property, it 
 belongs to the husband. 1 
 
 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 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. 2 When the goods are in the posses- 
 sion of the vendee, there need be no formal delivery of the 
 possession. 3 It makes no difference whether the property 
 is removed from the owner, or the owner from the pro- 
 perty. 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. 4 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 
 exercise 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 validity of the 
 transfer. The change must be notorious, and the posses- 
 sion and control of the vendee indisputable. The goods 
 may be left on the premises, in the exclusive charge of an 
 agent. 5 Where the vendee buys the furniture of a hotel, 
 
 1 Milne v. Henry, 40 Penn. 352. « Hutchins v. Gilchrist, 23 Vt. 82. 
 8 Lake v. Morris, 30 Conn. 201 ; Manton v. Moore, 7 T. E. 67. 
 
 4 Barrv. Eeitz, 53 Penn. 256 ; Graver v. Miller, 65 Penn. 456; Pacheco 
 v. Hunsacker, 14 Cal. 120. 
 
 5 Hutchins v. Gilchrist, 23 Vt. 82 ; Cartwright v. Phoenix, 7 Cal. 281 ; 
 Lee v. Huntoon, 1 Hoffm. Ch. 447; Funk v. Staats, 24 111. 632. 
 
WHEN POSSESSION IS FRAUD PER SE. 149 
 
 it is not sufficient for him to move to the hotel if the 
 business is managed by the vendor the same as before. 1 
 Even a removal is not sufficient, when the vendor accom- 
 panies the goods. 3 The property must either pass out of 
 the vendor to the vendee, or the vendor must pass away 
 from them, leaving them in the exclusive possession of the 
 vendee. 
 
 Previous Ownership. — It is no excuse that the mort- 
 gagee sold the goods to the mortgagor and took a mort- 
 gage as a security for the purchase money. 3 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. 4 
 
 Notice. — If a creditor consents that the vendor shall 
 remain in possession, he can not claim that the sale is 
 fraudulent on this account alone, 5 but mere notice is 
 not sufficient; 6 nor can a sheriff be prejudiced by any 
 
 1 Myers v. Woods, 1 Phila. 24. 
 
 2 Weil v. Paul, 22 Cal. 492 ; Garman v. Cooper, 72 Penn. 32. 
 
 3 Woodward v. Gates, 9 Vt. 358. In Meggott v. Mills, 1 Ld. Raym. 
 286 ; 12 Mod. 159, money was loaned to purchase goods, and a bill of sale 
 taken as security, and the transfer was held valid. The same doctrine is 
 laid down in Buller's N. P. 258. B ut it is said not to be law in Clow v. 
 Woods, 5 S. & R. 275. 
 
 4 Spring v. Chipman, 6 Vt. 662. 6 Steel v. Brown, 1 Taunt. 381. 
 
 6 Hower v. Geesaman, 17 S. & R. 251 ; Stark v. Ward, 3 Penn. 328 ; 
 King v. Bailey, 6 Mo. 575 ; Lassiter v. Busey, 14 La. An. 699 ; Lawrence 
 v. Burnham, 4 Nev. 361 ; Swift v. Thompson, 9 Conn. 63 ; Miller v. Gar- 
 man, 2 Pearson, 91. Contra, Wooderman v. Baldock, 8 Taunt. 676; 
 Ludwig v. Fuller, 17 Me. 162. 
 
150 WHEN POSSESSION IS FRAUD PER SE. 
 
 knowledge of the judgment creditor. 1 Knowledge that 
 there is a separate defeasance to an absolute deed makes 
 no difference, for what is void may be taken advantage of 
 by all creditors. 3 
 
 Nominal Party. — If the ' vendor is a mere trustee or 
 nominal party, holding the title for the use of another, 
 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 conforms to the con- 
 tract. 3 Where a sale is made by a person who has no title 
 to the goods, with the assent and for the benefit of the 
 real owner, the same principles 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 intro- 
 duction of a third person as nominal vendor, while the 
 possession remains with the beneficial owner. 4 
 
 By Owner to Debtor. — 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. 5 The rule is limited to 
 transfers by debtors. It has no application to transfer to 
 debtors. There are certain necessary and lawful con- 
 tracts, 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 useful, and without which 
 
 1 Meeker v. Wilson, 1 Gall. 419 ; Hower v. Geesaman, 17 S. & R. 
 251. Contra, Ludwig v. Fuller, 17 Me. 162. 
 
 2 Gaither v. Mumford, 1 N. C. T. R. 167. 
 
 3 Breckinridge v. Anderson, 3 J. J. Marsh. 710. 
 4 Laughlin v. Ferguson, 6 Dana, 111. 
 
 'Dawson v. Wood, 3 Taunt. 256 ; Craig v. Ward, 9 Johns. 197 ; How- 
 ard v. Sheldon, 11 Paige, 558; Clinn v. Russell, 3 Blackf. 772. 
 
WHEN POSSESSION IS FRAUD PER SE. 151 
 
 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 manufac- 
 turer 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. 1 
 
 Conditional Sale. — A stipulation that the title shall 
 not pass to the vendee is not fraudulent, whether verbal 3 
 or in writing, 3 and the vendee's creditors can not seize the 
 property until the condition precedent is performed. 4 A 
 third person may purchase the interests of the vendor and 
 conditional vendee, and leave the property in the posses- 
 sion of such conditional vendee. 5 Goods may also be 
 placed in the hands of an insolvent debtor, to sell in his 
 own name and account for the proceeds, with a condition 
 that the title shall not vest in him until they are paid 
 for. 6 In this mode creditors are put to a great disadvan- 
 tage, 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 criti- 
 
 1 Martin v. Mathiot, 14 S. & R. 214; Ayer v. Bartlett, 23 Mass. 71; 
 Peters v. Smith, 42 111. 417.. 
 
 2 Eeeves v. Harris, 1 Bailey, 563 ; Baylor v. Smithers' Heirs, 1 Litt. 
 105 ; Hussey v. Thornton, 4 Mass. 405 ; Armington v. Houston, 38 Vt. 
 448 ; Bigelow v. Huntley, 8 Vt. 151 ; Myers v. Harvey, 2 Penna. 478. 
 Contra, Ketchum v. Watson, 24 111. 592 ; Martin v. Mathiot, 14 S. & R. 
 214 ; Thompson v. Paret, 94 Eenn. 275. 
 
 8 Dupree v. Harrington, Harp. 391 ; Ayer v. Bartlett, 23 Mass. 71 ; 
 Bradley v. Arnold, 16 Vt. 382; Paris v. Vail, 18 Vt. 277. 
 
 * Barrett v. Pritchard, 19 Mass. 512; Marston v. Baldwin, 17 Mass. 
 606 ; Bigelow v. Huntley, 8 Vt. 151 ; Buckmaster v. Smith, 22 Vt. 203. 
 
 6 Smith v. Foster, 18 Vt. 182. 
 
 6 Merrill v. Rinker, 1 Bald. 528 ; Blood v. Palmer, 11 Me. 414 ; Chaffee 
 v. Sherman, 26 Vt. 237. 
 
152 WHEN POSSESSION IS FRAUD PER SE. 
 
 cally scrutinized, for they afford a most convenient screen 
 for fraud between 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 by the circumstances. 
 The true question is, whether the transaction is bona fide 
 or fraudulent. If the transaction is fraudulent, the ven- 
 dor setting up a condition to the sale, yet suffering the 
 vendee to be in possession but exercising full rights over 
 the property, with the intent and purpose of enabling him 
 to obtain credit on the strength of the property j 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 supposes it 
 belongs to the vendee. 1 
 
 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. 2 Delivery of possession is deemed to be 
 
 1 Ayer v. Bartlett, 23 Mass. 71 ; Merrill v. Rinker, 1 Bald. 528. 
 
 8 Sturtevant v. Ballard, 9 Johns. 337 ; Clow v. Woods, 5 S. & R. 275 ; 
 Williams v. Lowndes, 1 Hall, 579 ; Divver v. McLaughlin, 2 Wend. 596 ; 
 Doane v. Eddy, 16 Wend. 523 ; Collins v. Brush, 9 Wend. 198 ; Randall 
 v. Cook, 17 Wend. 53 ; Coburn v. Pickering, 3 N. H. 415 ; Wooderman v. 
 Baldock, 8 Taunt. 676 ; Patten v. Smith, 5 Conn. 196 ; s. C. 4 Conn. 450 ; 
 
WHEN POSSESSION IS FRAUD PER SE. 153 
 
 so much of the essence of the sale of chattels, that an 
 agreement to permit the vendor to keep possession is an 
 extraordinary exception to the usual course of dealing, and 
 requires a satisfactory explanation. There must be 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. 1 
 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 conducive to some fair 
 object the parties have in view, and which constitutes the 
 motive for entering into the contract. 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. 2 
 
 When Vendor and Vendee Reside Together. — The 
 fact that the vendor and vendee reside together, 3 board 
 together in the same house, 4 or live together in the house 
 upon the lot where the stable is which they use in com- 
 mon, 5 does not take the case out of the operation of the 
 
 Beekman v. Bond, 19 Wend. 444 ; Randall v. Parker, 3 Sandf. 69 ; Swift 
 v. Thompson, 9 Conn. 63 ; Osborne v. Tuller, 14 Conn. 529 ; Carter v. 
 Watkins, 14 Conn. 240 ; Stevens v. 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 
 Connecticut differs slightly from that of the other States. Swift v. 
 Thompson, 9 Conn. 63. 
 
 1 Sturtevant v. Ballard, 9 Johns. 337. 
 
 5 Clow v. Woods, 5 S. & R. 275. 
 
 3 Jarvis v. Davis, 14 B. Mon. 529; Waller v. Cralle, 8 B. Mon. 11 ; 
 Steelwagon v. Jeffries, 44 Penn. 407; Stiles v. Shumway, 16 Vt. 435 ; 
 Hull v. Sigsworth, 48 Conn. 258. 
 
 4 Hoflfner v. Clark, 5 Whart. 545. 
 
 • Brawn v. Keller, 43 Penn. 104 ; s. c. 3 Grant, 237. 
 
154 WHEN POSSESSION IS FEAUD PER SE. 
 
 rule. Even occasional acts of ownership will not consti- 
 tute a legal possession in the vendee if the, goods are in the 
 same situation as before. 1 But in such case the change 
 need be only such as can reasonably be expected in view 
 of the character and situation of the property and the 
 relation of the parties. 2 There is a distinction, 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 connection, 
 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 must be considered that of the father. 3 A 
 sister-in-law is not within this exception. 4 If a son's pos- 
 session and use of the goods are exclusive, a sale will be 
 valid although his father may live with him. If mere 
 cohabitation were a badge of fraud, a father's sale to his 
 unmarried son would seldom be sustained. 5 
 
 Mere Convenience. — Where possession has been with- 
 held pursuant to the terms of an agreement, some good 
 reason for the arrangement beyond the mere convenience 
 of the parties must appear. 6 Goods cannot be retained for 
 
 1 Mott v. McNiel, 1 Aik. 162 ; Stiles v. Shumway, 16 Vt. 435. 
 
 2 Evans v. Scott, 89 Penn. 136. 
 
 » Curry v. Ellerbe, 1 Bailey, 578 ; Kid v. Mitchell, 1 N. & M. 334 ; 
 Jacks v. Tunno, 3 Dessau. 1 ; Smith v. Littlejohn, 2 McCord, 362 ; How- 
 ard 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, 8 Ark. 83 ; Humphries v. McCraw, 9 Ark. 91 ; Danley v. Rector, 
 10 Ark. 211 ; Clayton v. Brown, 17 Geo. 217 ; Goodwyn v. Goodwyn, 20 
 Geo. 600. Contra, Stiles v. Shumway, 16 Vt. 435. 
 
 4 Smith v. Henry, 2 Bailey, 118 ; s. c. 1 Hill, 16. 
 
 6 McVicker v. May, 3 Penn. 224; Braxton v. Gaines, 4 H. & M. 151. 
 
 6 Clow v. Woods, 5 S. & R. 275 ; Jennings v. Carter, 2 Wend. 446 ; 
 Crouch v. Carrier, 16 Conn. 505 ; Gardner v. Adams, 12 Wend. 297 ; 
 Doane v. Eddy, 16 Wend. 523 ; Randall v. Cook, 17 Wend. 53. 
 
WHEN POSSESSION IS FRAUD PER SE. 155 
 
 the purpose of being manufactured, 1 or to complete a pro- 
 cess of manufacture in progress at the time of the sale/ 
 or under a covenant to keep and deliver at a future day, 3 
 or upon a conditional sale, 1 or from motives of benevolence 
 on the part of the vendee. 5 An agreement on the part of 
 the vendor to pay for the use of the goods will not repel 
 the imputation of fraud. 6 
 
 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 correspond with the title; and if the 
 sale is unconditional and passes the absolute right of 
 property from the vendor 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. 7 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 
 
 1 Carter v. Watkins, 14 Conn. 240 ; Pritchett v. Jones, 4 Rawle, 260 ; 
 Hall v. Gaylor, 37 Conn. 550. Contra, Clow v. Woods, 5 S. & R. 275. 
 
 8 Pritchett v. Jones, 4 Rawle, 260. 
 
 8 Brummel v. Stockton, 3 Dana, 134 ; Hundley v. Webb, 3 J. J. Marsh. 
 643 ; Grimes v. Davis, 1 Litt. 241 : Millard v. Hall, 24 Ala. 209. 
 
 4 Laughlin v. Ferguson, 6 Dana, 111. 
 
 5 Mauldin v. Mitchell, 14 Ala. 814. 
 
 6 Coburn v. Pickering, 3 N. H. 415 ; Streeper v. Eckhardt, 2 Whart. 
 302 ; Norton v. Doolittle, 33 Conn. 405 ; Goldsbury v. May, 1 Litt. 254 ; 
 Laughlin v. Ferguson, 6 Dana, 111 ; Webster v. Peck, 31 Conn. 495 ; Paul 
 v. Crooker, 8 N. H. 288. Contra, Sydnor v. Gee, 4 Leigh, 535; Powers 
 v. Green, 14 111. 386 ; Cunningham v. Hamilton, 25 111. 228 ; Pringle v. 
 Rhame, 10 Rich. 72; Jones v. Blake, 2 Hill Ch. 629 ; Upson v. Raiford, 
 29 Ala. 188 ; Wheeler v. Train, 20 Mass. 254. 
 
 7 Hundley v. Webb, 3 J. J. Marsh. 643. 
 
156 WHEN" POSSESSION IS FRAUD PER SE. 
 
 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. 1 Where by the terms of the conveyance 
 the vendee is not to have possession until the performance 
 or non-performance of a certain condition, there the 
 vendor's continuing in possession 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. 3 In case of mortgages, the possession 
 of the mortgagor is not inconsistent with the terms of the 
 contract and the nature of the transaction, for before con- 
 dition 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 pos- 
 session until this may be ascertained. Stipulations to this 
 effect are often inserted in mortgage deeds. 3 It is for this 
 reason that the retention of possession under a mortgage is 
 not deemed in the judgment of the law to be fraudulent. 4 
 
 1 Merrill v. Dawson, 1 Hemp. 563 ; s. c. 11 How. 373. 
 
 2 Badlam v. Tucker. 18 Mass. 389. 
 
 3 Holmes v. Crane, 19 Mass. 607. 
 
 4 Stone v. Grubbam, 2 Bulst. 217 ; s. c. 1 Rol. Rep. 3 ; Martindale v. 
 Booth, 3 B. & A. 498 ; Reed v. Wilmot, 7 Bing. 577 ; s. c. 5 M. & P. 553 ; 
 Conard v. Atlantic Ins. Co., 1 Pet. 386 ; Barrow v. Paxton, 5 Johns. 258 ; 
 Adams v. Wheeler, 27 Mass. 199 ; Marsh v. Lawrence, 4 Cow. 461 ; Ash 
 v. Savage, 5 N. H. 545 ; Holbrook v. Baker, 5 Me. 309 ; Ward v. Sumner, 
 22 Mass. 59 ; JDeWolfe v. Harris, 4 Mason, 515 ; s. c. 4 Pet. 147 ; Brinley 
 v. Spring, 7 Me. 241 ; Clay born v. Hill, 1 Wash. (Va.) 177 ; Hundley v. 
 Webb, 3 J. J. Marsh. 643 ; McGowen v. Hoy, 5 Litt. 239 ; Watson v. Wil- 
 liams, 4 Blackf. 26 ; Thornton v. Davenport, 2 111. 296 ; Rose v. Burgess, 
 10 Leigh, 186 ; U. S. v. Hooe, 3 Cranch, 73 ; Snyder v. Hitt, 2 Dana, 204 ; 
 Merrill v. Dawson, 1 Hemp. 563 ; s. c. 11 How. 375 ; Fairbanks v. Bloom- 
 field, 5 Duer, 434; Runyon v. Groshon, 12 N. J. Eq. 86; Wilson v. 
 Russell, 13 Md. 494. Contra, Doak v. Brubacker, 1 Nev. 218 ; Meyer v. 
 
WHEN POSSESSION IS FRAUD PER SE. 157 
 
 The condition, however, must be in the title, and not 
 simply in the contract. The title must depend on con- 
 dition, and be such as may be considered legal and 
 reasonable. 1 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 pay- 
 ment of all the instalments is consistent with the deed. 3 
 
 Stipulation in Mortgage. — Anciently it was usual to 
 insert a clause in the mortgage that the mortgagor should 
 retain possession until default, but the understanding and 
 practice now is that the mortgagor remains in possession 
 until default is made unless there is a contract to the con- 
 trary. 3 When a stipulation is inserted in the deed, the 
 possession must be consistent with it. If the deed stipu- 
 lates that the mortgagee shall have the possession, the 
 possession of the mortgagor is fraudulent. 4 The deed may 
 contain a stipulation 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. 5 
 A separate defeasance, instead of making the vendor's 
 
 Gorham, 5 Cal. 322 ; The Eomp, Olcott, 196 ; Sibly v. Hood, 3 Mo. 290 ; 
 Tobias v. Francis, 3 Vt. 425 ; Woodward v. Gates, 9 Vt.' 358 ; Clow v. 
 Woods, 5 S. & B. 275 ; Welsh v. Bekey, 1 Penna. 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, 563 ; 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 mort- 
 gagee. Meyer v. Gorham, 5 Cal. 322. 
 1 Hundley v. Webb, 3 J. J. Marsh. 643. 
 
 * Martindale v. Booth, 3 B. & A. 498 ; Magee v. Carpenter, 4 Ala. 469. 
 " Watson v. Williams, 4 Blackf. 26 ; Gist v. Pressley, 2 Hill Ch. 318 ; 
 
 Maney v. Killough, 7 Yerg. 440. 
 
 4 Jordan v. Turner, 3 Blackf. 309 ; Kitchell v. Bratton, 2 111. 300. 
 
 * U. S. v. Hooe, 3 Cranch, 73. 
 
158 WHEN POSSESSION IS FRAUD PER SE. 
 
 possession 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 falsehood to the 
 world, the truth only remaining to themselves. It is too 
 late to disclose the truth after the injury arising from the 
 secrecy has been sustained. 1 
 
 Fraud in Pact. — 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. 2 Deeds of trust are subject to the 
 same principles as mortgages. 3 
 
 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. 4 If the mort- 
 gagee fails to take possession immediately upon default, it 
 cannot be assumed as a conclusion of law that the mort- 
 
 1 Gaither v. Mumford, 1 N. C. T. B. 167 ; Laughlin v. Ferguson, 6 
 Dana, 111. Contra, Holmes v. Crane, 19 Mass. 607 ; Bartlett v. Wil- 
 liams, 18 Mass. 288 ; Sydnor v. Gee, 4 Leigh, 535. 
 
 ! Hundley v. Webb, 6 J. J. Marsh. 643. 
 
 3 Head v. Ward, 1 J. J. Marsh. 280 ; Kavisies v. Alston, 5 Ala. 297 ; 
 Johnson v. Cunningham, 1 Ala. 249 ; Malone v. Hamilton, Minor, 286 ; 
 Hopkins v. Scott, 20 Ala. 179. 
 
 4 Lady Lambert's Case, Shep. Touch. 65 ; Weaver v. Joule, 91 E. C. 
 L. 309 ; S. c. 3 C. B. (N. S.) 309 ; DeWolf v. Harris, 4 Mason, 515 ; s. c. 
 4 Pet. 147 ; 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; s. C 11 How. 375; Feurtv. Powell, 
 62 Mo. 524. Contra, Armstrong v. Baldock, Gow. 33 ; Reed v. Eames, 
 19 111. 594 ; Cass v. Perkins, 23 111. 382 ; Hanford v. Obrecht, 49 111. 146 ; 
 Rhines v. Phelps, 8 111. 455. No general rule can be established, but the 
 
WHEN POSSESSION IS FRAUD PER SE. 159 
 
 gage is fraudulent. If the transaction is fair in its incep- 
 tion, it cannot be denounced because the mortgagee does 
 not avail himself of his rights stricti jwis. 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 protection for his property against the de- 
 mands of his creditors. But this is a conclusion which 
 may be repelled by proof that the indulgence of the mort- 
 gagee is compatible with fair dealing, and induced by no 
 intention to favor the mortgagor to the prejudice of credi- 
 tors. It must, from the very nature of the case, be a 
 question of fact for the solution of the jury. 1 Upon the 
 extinguishment of the mortgage by the purchase of the 
 equity of redemption, the possession should be changed ; 
 but the retention will make only the purchase of the 
 equity of redemption void, and the mortgage will be valid. 2 
 
 Marriage Settlements. — The retention of possession 
 under a marriage settlement, whether antenuptial 3 or post- 
 nuptial, 4 and whether of the husband's property 5 or the 
 wife's, 6 is consistent with the deed, and does not render 
 the settlement void. The wife's possession is considered 
 
 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, 23 111. 382). 
 
 1 Planters' Bank v. Willis, 5 Ala. 770. 
 
 2 Laughlin v. Ferguson, 6 Dana, 111. Contra, Clayborn v. Hill, 1 
 Wash. (Va.) 177 ; Glasscock v. Batton, 6 Rand. 78. 
 
 8 Cadogan v. Kennett, Cowp. 432 ; Cochran v. McBeath, 1 Del. Ch. 
 187. 
 
 4 Arundel v. Phipps, 10 Ves. 139 ; Charlton v. Gardner, 11 Leigh, 
 281 ; Waller v. Todd, 3 Dana, 503 ; Larkin v. McMullin, 49 Penn. 29. 
 
 6 Cadogan v. Kennett, Cowp. 432 ; Cochran v. McBeath, 1 Del. Ch. 
 187. 
 
 ' Jarman v. Woolloton, 3 T. R. 618 ; Hazelinton v. Gill, 3 T. R. 620, 
 note ; 3 Doug. 415. 
 11 
 
160 WHEN POSSESSION IS FRAUD PER SE. 
 
 as the possession of the trustee, and not of the husband. 1 
 The fact that goods held by a trustee as the separate 
 property of the wife have been in the possession 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 ex- 
 pressly authorize him to use or enjoy her property with- 
 out giving it to him, and his creditors can not complain, 
 as they will lose nothing by the transaction. The posses- 
 sion of the property by the husband, if not inconsistent 
 with the nature of the trust, is not considered as fraudu- 
 lent. 2 
 
 Purchases. — The interest is as much separate pro- 
 perty as the principal, and purchases made with it are hers 
 and subject to the same rules as the principal fund, 3 and 
 her possession is the possession of the trustee, and not the 
 possession of her husband. 4 By the common law the 
 husband owns his wife's property. Consequently, if the 
 income from the separate estate is delivered 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. 5 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 
 
 1 Jarman v. Woolloton, 3 T. E. 618. 
 
 a Merritt v. Lyon, 3 Barb. 110. 3 Merritt v. Lyon, 3 Barb. 110. 
 
 1 Danforth v. Woods, 11 Paige, 9. 
 
 » Shirley v. Shirley, 9 Paige, 363 ; Came v. Brice, 7 M. & W. 183. 
 
WHEN POSSESSION IS FRAUD PER SE. 161 
 
 wife's separate estate to protect them from the search of 
 his creditors. These are subjects proper for the con- 
 sideration of the jury. 1 The trustee for the wife may 
 purchase the husband's goods at a sale under an execu- 
 tion, and leave them in the possession of the wife, although 
 she resides with her husband. 2 
 
 Public Sale — The notoriety of the change of pos- 
 session will, in some instances, repel the presumption of 
 fraud. 3 The mere seizure of goods on an execution is not 
 sufficient. A person can not, then, pay the judgment, 
 take a bill of sale as security, and leave the goods in 
 the possession of the debtor. 4 But, after a sale at public 
 auction under a deed of trust, the purchaser may permit 
 the debtor to keep the goods. 5 After a sale under a dis- 
 tress for rent, the goods may be left in the possession of 
 the tenant. 6 The same principle applies to a sale upon 
 the foreclosure of a mortgage. 7 
 
 Sale under Execution. — The retention of possession 
 after a sale under an execution rests upon even stronger 
 
 1 Merritt v. Lyon, 3 Barb. 110. 
 
 8 Quick v. Garrison, 10 Wend. 335 ; Cross v. Glode, 2 Esp. 574. 
 
 8 Ryall v. Rolle, 1 Ves. 348 ; s. c. 1 Atk. 165 ; 1 Wils. 260 ; Arm- 
 strong v. Baldock, Gow. 33. 
 
 4 Weil v. Paul, 22 Cal. 492; Laughlin v. Ferguson, 6 Dana, 111; 
 Leeeh v. Shantz, 2 Phila. 310 ; S. C. 5 A. L. Reg. 620 ; Weeks v. Wead, 
 2 Aik. 64. Contra, Jezeph v. Ingram, 8 Taunt. 838 ; s. o. 1 Moore, 189. 
 
 'Leonard v. Baker, 1 M. & S. 251 ; Fitter v. Maitland, 5 W. & S. 307; 
 Dallam v. Fitter, 6 W. & S. 323 ; Woodham v. Baldock, Gow. 35, note ; 
 s. c. 3 Moore, 11; 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. Teck, 21 111. 73. 
 
 « Guthrie v. Wood, 1 Stark, N. P. 367 ; Waters v. McClellan, 4 Dall. 
 208 ; Greathouse v. Brown, 5 Mon. 280. 
 
 . ' Hanford v. Obrecht, 49 111. 146 ; Clayton v. Anthony, 6 Rand. 285 ■; 
 Simerson v. Bank, 12 Ala. 205. 
 
162 WHEN POSSESSION IS FRAUD PER SE. 
 
 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 there- 
 fore 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 individual act of 
 the party or his agent — and with that fairness and publi- 
 city 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 pro- 
 nounce it conclusively void upon the mere fact that the 
 possession remains with the former owner. 1 The prin- 
 ciple applies to sales by commissioners 2 as well as con- 
 stables. 3 It is immaterial whether the purchase is made 
 by a stranger* or the execution creditor. 5 The advertise- 
 ments may be given to the debtor to post, and the pur- 
 
 1 Laughlin v. Ferguson, 6 Dana, 111 ; Gates v. Gaines, 10 Vt. 346 ; 
 Cole v. Davies, 1 Ld. Baym. 724 ; Myers v. Harvey, 2 Penn. 478 ; Perry 
 v. Foster, 3 Harring. 293 ; Allenton Bant v. Beck, 49 Penn. 394 ; Mc- 
 Instry v. Tanner, 9 Johns. 135 ; Floyd v. Goodwin, 8 Yerg. 484 ; Bates 
 v. Carter, 5 Vt. 602 ; Brandon v. Cunningham, 2 Stew. 249 ; Anderson 
 v. Brooks, 11 Ala. 953 ; Coleman v. Bank, 2 Strobh. Eq. 285 ; Penning- 
 ton v. Chandler, 5 Harring. 394 ; Dick v. Lindsay, 2 Grant, 431 ; Miles v. 
 Edelen, 1 Duvall, 270 ; Craig's Appeal, 77 Penn. 448 ; Magnes v. Atwater, 
 88 Penn. 496. 
 
 5 Miles v. Edelen, 1 Duvall, 270. 
 
 3 Pennington v. Chandler, 5 Harring. 394 ; Perry v. Foster, 3 Har- 
 ring. 293. 
 
 4 Kidd v. Eawlinson, 2 B. & P. 59 ; S. c. 3 Esp. 52 ; Watkins v. Birch, 
 4 Taunt. 823; Latimer v. Batson, 4 B. & C. 652; Garrett v. Ehame, 9 
 Bich. 407 ; Boardman v. Keeler, 1 Aik. 158. 
 
 6 Simerson v. Bank, 12 Ala. 205 ; Watkins v. Birch. 4 Taunt. 823 ; 
 Boardman v. Keeler, 1 Aik. 158 ; Allentown Bank v. Beck, 49 Penn. 
 394 ; Gates v. Gaines, 10 Vt. 346. 
 
"WHEN POSSESSION IS FRAUD PER SE. 163 
 
 chase may be for a low price. 1 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. 2 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. 3 Goods sold under an execution may be con- 
 veyed 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. 5 
 
 Mere Agreement. — 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 execution which 
 has been satisfied, it partakes of the character of a private 
 sale, and is subject to those rules of law in relation to pos- 
 session which are applied to private sales. The inter- 
 vention and abuse of the process of the court can not 
 change the aspect of the case. 8 So also, although a sale 
 under a trust deed has been advertised, yet if the trustee 
 is away on the day of sale, and the debtor and cestui que 
 trust enter into an arrangement by which the latter sells 
 the property at public auction, it will be regarded as sub- 
 stantially a sale by the debtor with the concurrence of the 
 trust creditor. 7 This doctrine in regard to the publicity 
 
 1 Allentown Bank v. Beck, 49 Penn. 394. 
 
 8 Watkins v. Birch, 4 Taunt. 823 ; Myers v. Harvey, 2 Penn. 478. 
 
 3 Cole v. Davies, 1 Ld. Eaym. 724. 
 
 4 Anderson v. Brooks, 11 Ala. 953. 5 Batchelder v. Carter, 2 Vt. 168. 
 
 6 Stephens v. Barnett, 7 Dana, 257 ; Tavenner v. Robinson, 2 Rob. 
 280 ; Robinson v. Roberts, 2 Pearson, 232. 
 
 7 Tavenner v. Robinson, 2 Rob. 280. 
 
164 WHEN POSSESSION IS FRAUD PER SE. 
 
 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. 1 
 
 When Change is Impossible. — The acts that will con- 
 stitute 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 cirumstances of each par- 
 ticular case. Such possession only need be taken as the 
 nature of the case will permit. 2 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 of hay, as is required in case of an 
 article of small bulk, as a parcel of bullion. 3 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 
 unnecessary expense and departing from the usual course 
 of business. 4 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 ; 5 but 
 in case of a sale of a large hotel, with many hundred 
 lodging rooms, parlors and sitting-rooms, besides the culi- 
 
 1 Pennington v. Chandler, 5 Harring. 394 ; Taylor v. Mills, 2 Edw. Ch. 
 318 ; Dickenson v. Cook, 17 Johns. 332 ; Farrington v. Caswell, 15 Johns. 
 430. ! Manton v. Moore, 7 T. R. 67. 
 
 3 Samuels v. Gorham, 5 Ual. 226 ; Doane v. Eddy, 16 Wend. 523 ; 
 Randall v. Cook, 17 Wend. 53. 
 
 4 Lay v. Neville, 25 Cal. 545. 6 Steelwagon v. Jeffries, 44 Penn. 407. 
 
"WHEN POSSESSION IS FRAUD PER SE. 165 
 
 nary department, with its necessary offices all duly fur- 
 nished, the furniture cannot be removed without great 
 deterioration and expense. It is valuable mainly for the 
 purpose for which it is used and in the place where it is 
 situated 1 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 a 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 impracticable, 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 adver- 
 tise the public of the sale. 2 In such instances the rule is 
 not impaired, but the case does not come within it. 3 
 
 Ponderous Articles. — Bricks in the kiln, 4 mown hay 
 in the field, 5 unbaled hay, 6 cattle roaming over uninclosed 
 plains, 7 growing crops, 8 trees in the woods, 9 and a safe, 10 
 
 ^ v . 
 
 : McKibbin v. Martin, 64 Penn. 352. 
 
 2 McKibbin v. Martin, 64 Penn. 352 ; Long v. Knapp, 54 Penn. 514 ; 
 Haynes v. Hunsicker, 26 Penn. 58. 
 
 3 Sydnor v. Gee, 4 Leigh, 535 ; Land v. Jeffries, 5 Rand. 211, 599. 
 
 4 Allen v. Smith, 10 Mass. 308. « Chaffln v. Doub, 14 Cal. 384. 
 6 Conway v. Edwards, 6 Nev. 190 ; Ticknor v. McClelland, 84 111. 471 ; 
 
 Thompson v. Wilhite, 81 111. 356 ; Hart v. Wing, 44 111. 141. 
 
 * Walden v. Murdock, 23 Cal. 540. 
 
 s Bernal v. Hovious, 17 Cal. 541 ; Robbins v. Oldham, 1 Duvall, 28 ; 
 Herron v. Fry, 2 Penn. 263 ; Bellows v. Wells, 36 Vt. 599 ; Morton v. 
 Ragan, 5 Bush. 334 ; Yisher v. Webster, 13 Cal. 58 ; Cummins v. 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.) 
 
 9 Fitch v. Burk, 38 Vt. 683. 10 Benford v. Schell, 55 Penn. 393. 
 
166 WHEN POSSESSION IS FRAUD PER SE. 
 
 are instances of articles not susceptible of immediate 
 change of possession. Machinery which may be separ- 
 ated from the building and removed without injury to it 
 or the building, must be delivered at the time of the sale. 1 
 If a person buys a store of goods, he may continue the 
 business in the same place. 2 
 
 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. 3 Every species of divestiture which can give the 
 world notice should, however, be resorted 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. 5 It is sufficient 
 that the vendee assumes the direction and control, and in 
 such an open, notorious manner as usually accompanies an 
 honest transaction. Whether all is done that ought to be 
 done, and whether the change of possession is real and 
 bona Jlde, not merely colorable and deceptive, are questions 
 of fact that ought to be submitted to the jury. 6 If a kiln 
 of bricks is left in the exclusive possession of the vendor, 
 
 ■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.) 
 
 2 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. Boumonville, 
 26 Penn. 72 ; Ford v. Chambers, 28 Cal. 13. 
 
 3 Cartwright v. Phoenix, 7 Cal. 281 ; Luckenbach v. Brickenstein, 5 
 W. & S. 145 ; Allen v. Smith, 10 Mass. 308. 
 
 4 Chase v. Ralston, 30 Penn. 539 ; Hutchins v. Gilchrist, 23 Vt. 82. 
 6 Lay v. Neville, 25 Cal. 545. 
 
 6 McKibbin v. Martin, 64 Penn. 352; Chase v. Ralston, 30 Penn. 539 ; 
 Lay v. Neville, 25 Cal. 545. 
 
WHEN POSSESSION IS FRAUD PER SE. 167 
 
 the sale will be fraudulent. 1 But setting up stakes in the 
 yard and marking the bricks, if notorious, is sufficient. 3 
 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 delivers it up to the vendee. 3 
 A formal delivery of timber, accompanied with marking 
 and counting, is sufficient without any measurement. 4 It 
 is not necessary 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. 5 The delivery of the 
 key where goods are locked up is a delivery of the goods 
 themselves. 6 It will be symbolical only when the vendor 
 remains in apparent connection with the goods, but is valid 
 in other cases. 7 The vendor may be employed to cut and 
 cure growing crops. 8 The vendee is entitled to a reason- 
 able time in which to complete the delivery, by reducing 
 the goods into his actual possession. 9 
 
 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 
 
 1 Woods v. Bugbey, 29 Cal. 466 ; Richards v. Schroeder, 10 Cal. 431. 
 
 2 Allen v. Smith, 10 Mass. 308. 
 
 3 Cadbury v. Nolen, 5 Perm. 320. 
 
 4 Chase v. Ralston, 30 Penn. 539 ; Sanborn v. Kittredge, 20 Vt. 632 ; 
 Hutchins v. Gilchrist, 23 Vt. 82 ; Haynes v. Hunsicker, 26 Penn. 58. 
 
 5 Long v. Knapp, 54 Penn. 514. 
 
 6 Barr v. Reitz, 53 Penn. 256 ; Benford v. Schell, 55 Penn. 393. 
 
 7 Barr v. Reitz, 53 Penn. 256. 
 
 8 Cummins v. Griggs, 2 Duvall, 87 ; Pitch v. Burk, 38 Vt. 683. Contra, 
 Welsh v. Beekey, 1 Penn. 57. 
 
 9 Haynes v. Hunsicker, 26 Penn. 28 ; Walden v. Murdock, 23 Cal. 540. 
 
168 WHEN POSSESSION IS FRAUD PER SE. 
 
 laches takes possession and asserts his title in a reasonable 
 time after he has an opportunity to take possession. 1 It 
 is not in the power of the parties under such circumstances 
 to deliver the possession, and consequently a delivery is 
 not required. A familiar example of this doctrine is in 
 the case of a sale of a ship, 2 or of goods at sea, 3 where 
 possession is dispensed with upon the plain ground of its 
 impossibility, and it is sufficient if the vendee takes pos- 
 session of the property within a reasonable time after its 
 return. The exception extends to protect contracts re- 
 lating 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 sale and the port is immaterial. 4 
 The transfer of ships is commonly made by a bill of sale, 
 and the title passes upon the execution of the instrument. 5 
 The delivery of the bill of lading and policy of insurance 
 is sufficient in sales of goods. 6 
 
 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 exe- 
 cuted, 7 If the vendee appears chargeable with neglect in 
 not taking possession seasonably, it is only evidence of 
 
 1 Bicker v. Cross, 5 N. H. 570 ; Meade v. Smith, 16 Conn. 346 ; vide 
 Burnell v. Bobertson, 10 111. 282. 
 
 8 Atkinson v. Maling, 2 T. E. 462 ; Badlam v. Tucker, 18 Mass. 389 ; 
 Morgan v. Biddle, 1 Yeates, 3. 
 
 3 Conard v. Atlantic Ins. Co., 1 Pet. 386 ; Portland Bank v. Stacey, 4 
 Mass. 661 ; Dawes v. Cope, 4 Binn. 258 ; Gardner v. Howland, 19 Mass. 
 599. * Putnam v. Dutch, 8 Mass. 287. 
 
 5 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 Bank v. Stacey, 4 Mass. 661, it is said that there is no distinc- 
 tion 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. 
 
 6 Dawes v. Cope, 4 Binn. 258. " Badlam v. Tucker, 18 Mass. 389. 
 
WHEN POSSESSION IS FRAUD PER SE. 169 
 
 fraud, and may be explained. 1 But where the delay and 
 negligence are gross, they will of themselves defeat the 
 conveyance against any subsequent attacking creditor. 
 Whether they exist or not depends upon the situation and 
 circumstances of the vessel and of the vendee. 2 What pre- 
 cise period is embraced 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. 3 A delay for one year has been held to 
 amount to an abandonment of all right under the convey- 
 ance. 4 A return and stay for eleven days, if unknown to 
 the vendee, and departure upon another voyage does not 
 vitiate the sale. 5 It is not necessary to have an agent in 
 the home port when the vessel is expected in another 
 port. 6 Seizure on legal process before the expiration of a 
 reasonable time is sufficient excuse. 7 Notice to the cap- 
 tain of the transfer of the ship is equivalent to the taking 
 of possession. 8 
 
 Constructive Possession. — 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 
 
 1 Badlam v. Tucker, 18 Mass. 389. 
 
 3 Joy v. Sears, 26 Mass. 4 ; Mair v. Grlennie, 4 M. & S. 240. 
 3 Brinley v. Spring, 7 Me. 241. * Meeker v. Wilson, 1 Gall. 419. 
 
 6 Turner v. Coolidge, 43 Mass. 350. 6 Joy v. Sears, 26 Mass. 4. 
 
 ' Conard v. Atlantic Ins. Co., 1 Pet. 386 ; Putnam v. Dutch, 8 Mass. 
 287. 
 
 8 Brinley v. Spring, 7 Me. 241. 
 
170 WHEN POSSESSION IS FRAUD PER SE. 
 
 general principle that a constructive possession will pass 
 by a constructive delivery. 1 A bill of sale is sufficient, for 
 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. 2 When the goods are in the possession of an- 
 other part owner, a constructive delivery is sufficient. 3 
 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 warehouseman in the 
 name of the vendor, who also sells some of them after- 
 wards, will not make the sale fraudulent. 4 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 susceptible. 5 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. 6 
 
 Bailee. — If the vendor of goods in the care and keep, 
 ing 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. 7 Notice to the 
 
 : Hutchins v. Gilchrist, 23 Vt. 82. 2 Hutchins v. Gilchrist, 23 Vt. 82. 
 
 8 Thompson v.Wilhite, 81 111. 356. l Jones v. Dwyer, 15 East. 21. 
 
 s Linton v. Butz, 7 Penn. 89 ; Goodwin v. Kelly, 42 Barb. 194; Nash 
 v. Ely, 19 Wend. 523 ; Butt v. Caldwell, 4 Bibb. 458. 
 
 6 Ingraham v. Wheeler, 6 Conn. 277. 
 
 1 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. 
 
"WHEN POSSESSION IS FRAUD PER SE. 171 
 
 bailee, however, is all that is required. If he refuses to 
 deliver the property to the vendee or to acknowledge his 
 right to the same, this will not affect the rights of the 
 vendee. 1 This is upon the ground that the vendor after 
 such notice has neither the actual nor constructive posses- 
 sion and is divested of all control over the property. 3 
 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 pur- 
 chaser. 3 The principle does not apply when the bailee is 
 simply to pay over a part of the proceeds to the vendee. 4 
 The vendor may subsequently interfere temporarily to 
 remove the property from one place to another as the 
 agent of the vendee, 5 or may be employed to Tent or sell 
 the property. 6 If the property is really kept by the 
 bailee in an open and notorious manner, the vendor may 
 be employed as a driver. 7 
 
 Servant. — This x principle is not applicable to a mere 
 servant. 8 The possession of a mere servant or hired man 
 is but the possession of the master, and does not, like the 
 
 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. Hooks, 23 Cal. 581 ; 
 Montgomery v. Hunt, 5 Cal. 366 ; Walcott v. Keith, 22 1ST. H. 196 ; Pot- 
 ter v. Washburn, 13 Vt. 558 ; Cartwright v. Phoenix, 7 Cal. 281 ; Wor- 
 manv. Kramer, 73 Penn. 378; Comly v. Fisher, Taney, 121. In Ver- 
 mont 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. 231. 
 
 1 How v. Taylor, 52 Mo. 592. 2 Harding v. Janes, 4 Vt. 462. 
 
 8 Walcott v. Keith, 22 N. H. 196. 
 
 4 Richards v. Schroeder, 10 Cal. 431. 
 
 « Kendall v. Fitts, 22 N. H. 1. «. Harding v. Janes, 4 Vt. 462. 
 
 ' Worman v. Kramer, 73 Penn. 378. 
 
 8 Doack v. Brubacker, 1 Nev. 218 ; Hurlburd v. Bogardus, 10 Cal. 
 518 ; Chester v. Bower, 55 Cal. 46. 
 
172 WHEN POSSESSION IS FRAUD PER SE. 
 
 possession of other third persons, put creditors upon inquiry. 
 To give it that effect there must be some change in the 
 labor, or something external to show to the world the 
 new relation. Mere contract resting between the parties 
 has no such effect. 1 
 
 Subject to Interest of a Third Party. — Although 
 the property has been hired out, the owner may transfer 
 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 possession 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 transferred. The possession of such 
 third person is a possession connected with the right of 
 property, and ought, therefore, rather to be regarded, in 
 the hands of the person hiring, as following the transfer 
 of the right of property in the hands of the purchaser. 2 
 Mere notice, without any consent to hold for the vendee, 
 will make the transfer unimpeachable. 3 
 
 Upon Another's Land. — 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 
 
 1 Flanagan v. Wood, 33 Vt. 332 ; Sharon v. Shaw, 2 Nev. 289 ; Sleeper 
 v. Pollard, 28 Yt. 709 ; Gray v. Corey, 48 Cal. 208. 
 
 ! Butt v. Caldwell, 4 Bibb. 458 ; Kroesen v. Seevers, 5 Leigh, 434 ; 
 Lynde v. Melvin, 11 Vt. 683 ; Boberts v. Guernsey, 3 Grant, 237 ; 
 Thomas v. Hillhouse, 17 Iowa, 67. 
 
 3 Wooley v. Edson, 35 Vt. 214. 
 
WHEN POSSESSION IS FRAUD PER SE. 173 
 
 the debtor. All that he has is a constructive possession, 
 flowing from his general right of property, and this pos- 
 session will follow the right of property under a bill of 
 sale. After the execution of the bill of sale, the goods 
 can not be considered as remaining even in his constructive 
 possession. Much less has he any beneficial use and pos- 
 session. 1 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. 2 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 pre- 
 sumed that he is in the visible, ostensible occupancy of the 
 land. 3 The vendee is entitled to a reasonable time to 
 take possession of the goods. 4 
 
 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 creditor 
 attaches, by levy under an execution or other legal pro- 
 cess. 5 If the change does not immediately follow the 
 sale, it is proper matter to go to the jury, on the question 
 
 1 Hutchins v. Gilchrist, 23 Vt. 82. 
 
 » Hutchins v. Gilchrist, 23 Vt. 82 ; Cartwright v. Phoenix, 7 Cal. 281 ; 
 Merritt v. Miller, 13 Vt. 416. 
 
 'Merritt v. Miller, 13 Vt. 416. 
 
 1 Walden v. Murdock, 23 Cal. 540 ; Morse v. Powers, 17 N. H. 286. 
 
 6 Bartlett v. Williams, 18 Mass. 288 ; Hall v. Parsons, 15 Vt. 358 ; 
 s. c. 17 Vt. 271 ; Kendall v. Samson, 12 Vt. 515 ; Read v. Wilson, 22 111. 
 377 ; Calkins v. Lockwood, 16 Conn. 276 ; Blake v. Graves, 18 Iowa, 
 312 ; Cruikshank v. Cogswell, 26 111. 366 ; Sydnor v. Gee, 4 Leigh, 535 ; 
 Clute v. Steele, 6 Nev. 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 ; Bagan v. Ken- 
 nedy, 1 Tenn. 91; Gardenier v. Tubbs, 21 Wend. 169; Claytor v. 
 Anthony, 6 Band. 285 ; Hall v. Gaylor, 37 Conn. 550. 
 
174 -WHEN POSSESSION IS FRAUD PER SE. 
 
 of a fraudulent sale in fact. 1 When the possession 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. 2 It is not sufficient 
 to take possession after the vendor's death. 3 
 
 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 can not determine conclusively, arid 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 case, sufficient to require the con- 
 clusion that the whole sale is fraudulent and void. 4 The 
 transfer is good and operative as to the articles delivered, 
 and void and inoperative as to the residue. 5 But the pos- 
 session 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. 6 
 
 Continued. — The change of possession must not only 
 be actual, but it must be continued in order to render a 
 
 1 Kendall v. Samson, 12 Vt. 515 ; Cruikshank v. Cogswell, 26 111. 366. 
 
 2 Henderson v. Mabry, 13 Ala. 713 ; Mauldin v. Mitchell, 14 Ala. 814. 
 8 Shields v. Anderson, 3 Leigh, 729 ; Edwards v. Harben, 2 T. R. 587. 
 4 Brown v. Foree, 7 B. Mon. 357. 
 
 "Wellerv. Wayland, 17 Johns. 102 ; De Wolf v. Harris, 4 Mason, 
 515 ; S. O. 4 Pet. 147 ; Lee v. Huntoon, 1 Hoffm. Ch. 447 ; Spaulding v. 
 Austin, 2 Vt. 555; Brown v. Foree, 7 B. Mon. 357; De Bardleben v. 
 Beekman, 1 Dessau. 346 ; Hessing v. McCloskey, 37 111. 341. 
 
 •Spaulding v. Austin, 2 Vt. 555; Brown v. Foree, 7 B. Mon. 357. 
 Contra, Foster v. Hugh, 20 Miss. 416. 
 
WHEN POSSESSION IS FRAUD PER SE. 175 
 
 sale valid as against the vendor's creditors; 1 but one or 
 more acts of intermeddling with the property by the ven- 
 dor, after the sale, do not amount to a retention of posses- 
 sion. 2 A few and fitful instances of use by the ven- 
 dor, 3 or temporary acts of ownership, without the consent 
 of the vendee, will not vitiate the sale.* Temporary 
 lendings or hirings, 5 or a temporary interference by the 
 vendor, to remove the property from one place to another, 6 
 will not render the transaction void. But a mere tempo- 
 rary change, if the property revert immediately into the 
 possession of the vendor, is not sufficient. 7 As the change 
 of possession 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. 8 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 posses- 
 sion, and can not select an agent to take or keep posses- 
 sion 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. 9 
 
 Subsequent Eeturn.— The rule is not an absolute pro- 
 hibition of any subsequent return of the property into the 
 
 1 Miller v. Carman, 69 Penn. 134; Leech v. Shantz, 2 Phila. 310; S. 0. 
 5 A. L. Beg. 620 ; Norton v. Doolittle, 32 Conn. 405. 
 
 2 Lake v. Morris, 30 Conn. 201. 
 
 s Farnsworth v. Shepard, 6Vt. 521 ; Lyndon v. Belden, 14 Vt. 423. 
 "Hodgkins v. Hook, 23 Cal. 581. 
 
 5 Famsworth v. Shepard, 6 Vt. 521 ; Lyndon v. Belden, 14 Vt. 423. 
 
 6 Kendall v. Pitts, 22 N. H. 1. 
 
 'Morris v. Hyde, 8 Vt. 352; Norton v. Doolittle, 32 Conn. 405; 
 Weeks v.- Weed, 2 Aik. 64; Goldsbury v. May, 1 Litt. 254. 
 
 8 Morris v. Hyde, 8 Vt. 352. 9 Lynde v. Melvin, 11 Vt. 683. 
 
 12 
 
176 WHEN POSSESSION IS FRAUD PEE SE. 
 
 possession of the vendor. After the sale has become per- 
 fected by such visible, notorious and continued change of 
 possession, that the creditors of the vendor may be pre- 
 sumed to have notice of it, a return of the property to the 
 vendor will not, by its own mere operation, render the 
 transaction fraudulent. 1 Before the return there must be 
 such a change of possession 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 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. 2 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 control. 3 If the pro- 
 perty has been attached, this will assist in giving notoriety 
 to the transfer. 4 The change of possession must also con- 
 tinue for such a length of time as will be likely to operate 
 as a general advertisement of the change of title. 5 It is 
 impossible to lay down a fixed rule applicable to all cases 
 establishing the length of time a vendee of personal pro- 
 perty should continue in the exclusive possession. Each 
 case must necessarily be governed and determined by its 
 
 1 Brady v. Haines, 18 Perm. 113 ; Graham v. McCreary, 40 Perm. 515 ; 
 Clark v. Morse, 10 N. H. 236 ; French v. Hall, 9 N. H. 137 ; Prosser v. 
 Henderson, 11 Ala. 484 ; Sutton v. Shearer, 1 Grant, 207 ; Carpenter v. 
 Clark, 2 Nev. 243 ; Johnson v. Willey, 46 N. H. 75 ; Stevens v. Irwin, 15 
 Cal. 503; Waldie v. Doll, 29 Cal. 555; Lewis v. Wilcox, 6 Nev. 215; 
 Brown v. Eiley, 22 111. 45 ; Neece v. Haley, 23 111. 416. Contra, Yan 
 Pelt v. Littler, 10 Cal. 394; Bacon v. Scannell, 9 Cal. 271. 
 
 2 Clark v. Morse, 10 N. H. 236. 8 Houston v. Howard, 39 Vt. 54. 
 4 Clark v. Morse, 10 N. H. 236. « Carpenter v. Clark, 2 Nev. 243. 
 
WHEN POSSESSION IS FRAUD PEE SE. 177 
 
 own peculiar circumstances. 1 Eight or ten days 2 has been 
 deemed insufficient. 3 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 service 
 about them with the same safety as he may a stranger. 4 
 But the return can only be for a temporary purpose. The 
 vendor cannot have the permanent possession and use of 
 them in his own business. 5 A minor son may, however, 
 purchase them in good faith, and bring them home to his 
 father's, where he resides. 6 
 
 Choses in Action. — An assignment of a chose in 
 action is subject to the rule which requires a change of 
 possession. 7 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 indica- 
 tion of ownership is the entry upon the stock record. 8 
 
 There is no distinction between prior and subsequent 
 creditors. 9 
 
 1 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, 69 Penn. 134 ; Look v. Comstock, 
 15 Wend. 244. Contra, Cunningham v. Hamilton, 25 111. 228 ; Wright v. 
 Grover, 27 111. 426. 
 
 3 Brady v. Haines, 18 Penn. 113. 
 
 4 Dewey v. Thrall, 13 Vt. 281 ; Harding v. Janes, 4 Vt. 462 ; Brady v. 
 Haines, 18 Penn. 113 ; Bond v. Bronson, 80 Penn. 360. 
 
 6 Mills v. Warner, 19 Vt. 609. 6 Jordan v. Prink, 3 Penn. 442. 
 
 ' Welsh v. Bekey, 1 Penn. 57 ; Woodbridge v. Perkins, 3 Day, 364 ; 
 Hall v. Bedding, 13 Cal. 214. 
 
 8 Pinkerton v. Manchester R. E. Co., 42 N. H. 424 ; Shipman v. Mtna, 
 Ins. Co., 29 Conn. 245. 
 
 9 Clow v. Woods, 5 S. & R. 275 ; Young v. Pate, 4 Terg. 164 ; Smith 
 T. Lowell, 6 N. H. 67 ; Paul v. Crooker, 8 N. H. 288 ; Woodrow v. Davis, 
 2 B. Mon. 296; Rankin v. Holloway, 11 Miss. 614; Smith v. McDonald, 
 25 Geo. 377. 
 
178 WHEN POSSESSION IS FRAUD PER SE. 
 
 Land. — Possession of real estate is not without weight, 
 and in a doubtful case may strengthen 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. Possession 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 posses- 
 sion as to the public records, as proofs of the title to such 
 property. The possession must therefore be inconsistent 
 with the sale and repugnant to it in terms or operation, 
 before it raises a just presumption of fraud. 1 
 
 1 Phettiplace v. Sayles, 4 Mason, 312 ; Every v. Edgerton, 7 Wend. 
 259 ; Waller v. Todd, 3 Dana, 503 ; Avery v. Street, 6 Watts, 247 ; Bank 
 of U. S. 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, 31 Conn. 428 ; Merrill v. Locke, 41 N. H. 486 ; Lyne v. Bank 
 of Ky., 5 J. J. Marsh. 545 ; Allentown Bank v. Beck, 49 Penn. 394 ; Lud- 
 wig v. Highley, 5 Penn. 132. 
 
CHAPTER VII. 
 
 PREFERENCES. 
 
 No New Consideration Necessary in Case of a 
 Preference. — 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 equit- 
 able interest in it which the law, under certain circum- 
 stances, 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 entitled 
 to the benefit of the universal rule, that where the equities 
 are equal the legal title must prevail. An existing in- 
 debtedness is, therefore, a good consideration within the 
 proviso which saves the rights of harm fide purchasers. 
 There being no equity prior to that of the vendee, the 
 necessity which calls for a new consideration in other cases 
 does not exist. 1 
 
 Right to Prefer is a Consequence of Ownership. — 
 Creditors generally trust a debtor upon the faith of his 
 property, and look to it for payment. Their means, more- 
 
 1 Seymour v. Wilson, 19 N. T. 417 ; Adams v. Wheeler, 27 Mass. 199 ; 
 Gibson v. Seymour, 4 Vt. 518 ; Grleason v. Day, 9 Wis. 498 ; Seymour v. 
 Briggs, 11 Wis. 196 ; McMahan v. Morrison, 16 Ind. 172 ; Wilson v. Ayer, 
 7 Me. 207 ; Towsley v. McDonald, 32 Barb. 604 ; Stacy v. Deshan, 14 
 N. Y. Supr. 449 ; vide Harney v. Pack, 12 Miss. 229 ; Pope v. Pope, 40 
 Miss. 516. 
 
180 PREFERENCES. 
 
 over, contribute equally to the fund with which it is 
 acquired. They therefore have an equally equitable claim 
 for remuneration out of it. The abstract principles of 
 natural justice dictate that it should be applied for the 
 equal benefit of all creditors, but this has been found 
 impracticable without the aid of some artificial system. 
 If the right to give a preference were to be denied while 
 an insolvent debtor retains his property in his own hands, 
 he could not pay anybody, for whoever he paid would 
 receive a preference. Such a principle would take away 
 a man's rights over his own property, and involve the 
 necessity of vesting an inquisitorial power somewhere. 1 
 The common law had no means or device to form such 
 a power or to execute such a principle. It therefore 
 adopted an altogether different set of principles. The 
 obligation of a debtor is purely personal, and in no way 
 affects his property or any portion of it. His right to use, 
 control and dispose of it is, in the absence of any statute, 
 absolute^ and he is in no manner subject to the dictation of 
 his creditors, for they have no legal right in it by reason of 
 being creditors. 2 It is upon this ground that the right to 
 prefer rests. So long as the property of a debtor remains 
 in his hands unshackled by liens or incumbrances, 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. 3 A debtor therefore has a 
 discretion within the limits of fraud. Society has to 
 depend for its indemnity upon the teachings of his heart 
 
 1 Wilson v. Forsyth, 24 Barb. 105. 
 
 5 Lampson v. Arnold, 19 Iowa, 479. 
 
 8 Grover v. Wakernan, 11 Wend. 187 ; s. o. 4 Paige, 23 ; Dance v. Sea- 
 man, 11 Gratt. 778 ; Wilson v. Forsyth, 24 Barb. 105 ; Lupton v. Cutter, 
 25 Mass. 298; Robinson v. Rapelye, 2 Stew. 86; Tillou v. Britton, 9 
 N. J. 120. 
 
PREFERENCES. 181 
 
 and conscience; upon those moral lights which all men 
 possess, and upon the native sense of justice. 1 
 
 The Law knows no Distinction between Debts. — 
 The right of preference has been advocated by many en- 
 lightened jurists, on the ground that the debtor, possessing 
 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. 3 The 
 notion, however, of honorable debts, in contradistinction 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 vindictive motives of preference, 
 The principle is too uncertain, flexible and capricious in 
 the application. 3 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. 4 
 
 A Preference not always Given to Meritorious 
 Debts. — Experience 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 perfect indemnity in 
 
 1 Niolon v. Douglas, 2 Hill Ch. 443. 
 
 s Murray v. Kiggs, 15 Johns. 571 ; S. c. 2 Johns. Ch. 565; Dana v. 
 Bank of TJ. S., 5 W. & S. 223. 
 
 8 Murray v. Kiggs, 15 Johns. 571 ; s. C. 2 Johns. Ch. 565. 
 4 Grover v. Wakeman, 11 Wend. 187; s. o. 4 Paige, 23. 
 
182 PREFERENCES. 
 
 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. 1 
 It is true that the debts preferred are usually considered 
 and termed by the 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 a secret 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 instrument of 
 fraud, assuredly deserves any other name than that of 
 honorable. It is not an agreement that it implies, but a 
 conspiracy. 2 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. 3 
 
 Preference not Favorable to Commerce. — It is 
 thought by some that the right of preference favors com- 
 mercial enterprise by affording to those destitute of capital 
 
 1 Murray v. Eiggs, 15 Johns. 571 ; s. c. 2 Johns. Ch. 565. 
 
 2 Nicholson v. Leavitt, 4 Sandf. 252 ; s. c. 6 N. Y. 510 ; 10 N. Y. 591. 
 8 Boardman v. Halliday, 10 Paige, 223. 
 
PREFERENCES. 183 
 
 a credit founded on the power of securing confidential 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 obtaining 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 commu- 
 nities leads to the conclusion that this power of prefer- 
 ring creditors is a fruitful source of fraud, and in every 
 respect mischievous and unwholesome. 1 The right, more- 
 over, is not always exercised in favor of so-called merito- 
 rious debts. An influential creditor is often preferred, 
 while those who are poor, or are minors, or are absent, or 
 want the means or spirit to engage in litigation, are aban- 
 doned. 2 The principle is also frequently perverted, and 
 made subservient to the gratification of vindictive feelings, 
 and to the perpetration of the foulest injustice, as well as 
 ingratitude towards honest and confiding creditors. 3 
 
 Preferences not Fraudulent. — 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 dormi&ntibus leges subserviunt 
 applies. Hence it is that a creditor who can secure a 
 sufficiency, according to law, to satisfy his claim, is entitled 
 
 1 Grover v. Wakeman, 11 Wend. 187 ; s. c. 4 Paige, 23 ; Lupton v. 
 Cutter, 25 Mass. 298 ; Atkinson v. Jordan, 5 Ohio, 295 ; S. c. Wright, 247. 
 
 "Murray v. Eiggs, 15 Johns. 571 ; S. C. 2 Johns. Ch. 565 ; Grover v. 
 Wakeman, 11 Wend. 187 ; S. C. 4 Paige, 23. 
 
 3 Cunningham v. Preebom, 11 Wend. 241 ; s. C. 1 Edw. 256 ; 3 Paige, 
 537. 
 
1 84 PREFERENCES. 
 
 to hold it against other creditors. 1 This right, moreover, 
 is not affected by the debtor's insolvency, 2 or the pre- 
 ferred creditor's knowledge of such insolvency. 3 
 
 1 Benton v. Thornhill, 2 Marsh. 427 ; S. 0. 7 Taunt. 149 ; Eveleigh v. 
 Purrsford, 2 Mood. & Bob. 539 ; Cameron v. Montgomery, 13 S. & B. 
 128 ; Bagan v. Kennedy, 1 Tenn. 91 ; Waterbury v. Sturtevant, 18 Wend. 
 353 ; McMenomy v. Boosevelt, 2 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, Bice 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, 
 38 ; Cowles v. Eickett, 1 Iowa, 582 ; Bruce v. Smith, 3 H. & J. 499 ; Cole 
 v. Albers, 1 Gill, 412 ; Glenn v. Grover, 3 Md. 212 ; S. c. 3 Md. Ch. 29 ; 
 Anderson v. Tydings, 3 Md. Ch. 167 ; Mayfleld v. Kilgour, 31 Md. 240 ; 
 Grogan v. Cooke, 2 Ball. & B. 233 ; Holbird v. Anderson, 5 T. B. 235 ; 
 Green v. Tanner, 49 Mass. 411 ; Harrison v. Phillips' Academy, 12 Mass. 
 456; Guild v. Leonard, 35 Mass. 511; Buffum v. Green, 5 N". H. 71; 
 Hendricks v. Bobinson, 2 Johns. 283 ; s. o. 17 Johns. 438 ; Lewkner v. 
 Freeman, Prec. Ch. 105 ; s. C. 1 Eq. Cas. Abr. 149 ; 2 Freem. 236 ; 
 Williams v. Brown, 4 Johns. Ch. 682 ; M'Broom v. Eives, 1 Stew. 72 ; 
 Eaton v. Patterson, 2 Stew. & Port. 9 ; Stover v. Harrington, 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. 
 Beg. 334 ; 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 v. Irvine, 4 Munf. 
 450; Bates v. Coe, 10 Conn. 280; Kemp v. Walker, 16 Ohio, 118; 
 Choteau v. Sherman, 11 Mo. 385 ; Moseley v. Gainer, 10 Tex. 393; Hub- 
 bard v. Taylor, 5 Mich. 155 ; Bull v. Harris, 18 B. Mon. 195 ; Walker v. 
 Adair, 1 Bond, 158 ; Cox v. Fraley, 26 Ark. 20 ; Vose v. Stickney, 19 
 Minn. 367 ; HarMns v. Bailey, 48 Ala. 376 ; Morris v. Tillson, 81 111. 607; 
 Mc Williams v. Bodgers, 56 Ala. 87 ; Heidingsfelder v. Slade, 60 Geo. 596 ; 
 Frank v. Welch, 89 111. 38 ; Preusser v. Henshaw, 49 Iowa, 41 ; King v. 
 Phillips, 45 N. Y. Supr. 633 ; Totten v. Brady, 54 Md. 170. 
 
 8 Glenn v. Grover, 3 Md. 212 ; s. C. 3 Md. Ch. 29 ; Waite v. Hudson, 
 1 Dane Ab. 635 ; Green v. Tanner, 49 Mass. 411 ; Auburn Bank v. Fitch, 
 48 Barb. 344 ; Williams v. Jones, 2 Ala. 314 ; Covanhovan v. Hart, 21 
 Penn. 495 ; Lloyd v. Williams, 21 Penn. 327 ; Ford v. Williams, 3 B. 
 Mon. 550 ; Johnson v. McGrew, 11 Iowa, 151 ; Galloway v. People's 
 Bank, 54 Geo. 441. 
 
 8 Terry v. Belcher, 1 Bailey, 568; Sibley v. Hood, 3 Mo. 290; Hind- 
 man v. Dill, 11 Ala. 689 ; Fromme v. Jones, 13 Iowa, 474 ; Hessing v. 
 
PREFERENCES. 185 
 
 Although Others Lose their Debts. — The fact that 
 a suit is pending, 1 or that the transfer includes all the 
 debtor's property, 2 or all the property which is not ex- 
 empt from execution, 3 or that other creditors lose their 
 debts by reason of the debtor's inability to meet all 
 the demands against him, 4 does not necessarily affect 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 transac- 
 tion is not invalidated. The statute is aimed only at 
 intended fraud, but the payment of a debt to one 
 
 McCloskey, 37 111. 341 ; Green v. Tanner, 49 Mass. 411 ; Walsh v. Kelley, 
 42 Barb. 98 ; s. c. 27 How. Pr. 359 ; Johnson v. McGrew, 11 Iowa, 151 ; 
 Olmstead v. Mattison, 45 Mich. 617. 
 
 1 Kuykendall v. McDonald, 15 Mo. 416 ; Waterbury v. Sturtevant, 18 
 Wend. 353 ; Pringle v. Sizer, 2 Rich. (N. S.) 59 ; Allen v. Kennedy, 49 
 Wis. 549. 
 
 2 Alton v. Harrison, L. R. 4 Ch. Ap. 622; Sibly v. Hood, 3 Mo. 
 290; Giddings v. Sears, 115 Mass. 505; Hale v. Stewart, 14 N. Y. Supr. 
 591. 
 
 " Young v. Dumas, 39 Ala. 60. 
 
 4 Ocoee Bank v. Nelson, 1 Cold. 186 ; Ferguson v. Kumler, 11 Minn. 
 104 ; Lee v. Flannagan, 7 Ired. 471 ; Hopkins v. Beebe, 26 Penn. 85 ; 
 Keen v. Kleckner, 42 Penn. 529 ; Lord v. Fisher, 19 Ind. 7 ; McGregor 
 v. Chase, 35 Vt. 225 ; Prior v. White, 12 111. 261 ; Cason v. Murray, 15 
 Mo. 378 ; Hall v. Arnold, 15 Barb. 599 ; Ewing v. Runkle, 20 111. 448 ; 
 Waddams v. Humphrey, 22 III. 661 ; Wheaton v. Neville, 19 Cal. 41 ; 
 Brewster v. Bours, 8 Cal. 501 ; National Bank v. Sprague, 20 N. J. Eq. 
 13 ; Guignard v. Aldrich, 10 Rich. Eq. 253 ; Central R. R. Co. v. Clag- 
 horn, Speer's Ch. 545 ; Williams v. Jones, 2 Ala. 314 ; Giddings v. Sears, 
 115 Mass. 505 , Laidlaw v. Gilmore, 47 How. Pr. 67 ; Francis v. Rankin, 
 84 111. 169 ; Jordan v. White, 38 Mich. 253. 
 
186 PREFERENCES. 
 
 creditor is no fraud upon other creditors — no legal injury 
 to them. 1 
 
 Preference not Affected by Person or Mode. — The 
 preference may be given to any lawful demand against the 
 debtor, whether due or not, 2 and whether held by his 
 brother, 3 his wife, 4 or his attorney, 5 or any other person. 
 A corporation may prefer a director. 6 The preference may 
 be given in any mode which the law recognizes as legal for 
 effecting a transfer, whether by a mortgage, 7 or a deed, 8 or 
 judgment, 9 or the transfer of a note, 10 or of any other pro- 
 
 1 York County Bank v. Carter, 38 Penn. 446; Meade v. Smith, 16 
 Conn. 346; Kirtland v. Snow, 20 Conn. 23; Hessing v. McCloskey, 37 
 111. 341 ; Bentz v. Riley, 69 Penn. 71. 
 
 2 Carpenter v. Muren, 42 Barb. 300; Hill v. Northrop, 9 How. Pr. 525. 
 8 Thorpe v. Thorpe, 12 S. C. 154. 
 
 4 Mayfield v. Kilgour, 31 Md. 240; Kyger v. Skirt Co., 34 Ind. 249; 
 Kluender v. Lynch, 4 Keyes, 361 ; 2 Abb. Ap. 538 ; Buchner v. Stine, 48 
 Mo. 407 ; Wilkinson v. Wilkinson, 1 Head. 305 ; Mangum v. Finucane, 38 
 Miss. 354 ; Randall v. Lunt, 51 Me. 246 ; Monroe v. May, 9 Sans. 466 ; 
 French v. Motley, 63 Me. 326 ; Jordan v. White, 38 Mich. 253 ; Tomlin- 
 son v. Matthews, 98 111. 178 ; Hill v. Bowman, 35 Mich. 191 ; Savage v. 
 Dowd, 54 Miss. 728; Coleman v. Smith, 55 Ala. 368; Atlantic Nat'l 
 Bank v. Tavenner, 130 Mass. 407; Loomis v. Smith, 37 Mich. 595. 
 
 5 Hill v. Rogers, Rice Ch.7. 
 
 6 Central R. R. Co. v. Claghorn, Speers Ch. 545 ; Smith v. Skeary, 47 
 Conn. 47. 
 
 1 Kennaird v. Adams, 11 B. Mon. 102 ; Jones v. Naughright, 10 N. J. 
 Eq. 298; Carnall v. Duvall, 22 Ark. 136; Wiley v. Lashlee, 8 Humph. 
 717. 
 
 8 Waterbury v. Sturtevant, 18 Wend. 353 ; Barr v. Hatch, 3 Ohio, 527 ; 
 Buffum v. Green, 5 N.H. 71 ; Covanhovan v. Hart, 21 Penn. 495 ; Kemp 
 v. Walker, 16 Ohio, 118; Morse v. Slason, 13 Vt. 296; Leadman v. 
 Harris, 3 Dev. 144; Harrison v. Phillips' Academy, 12 Mass. 456. 
 
 9 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 v. 
 Harris, 19 Cal. 278 ; Shedd v. Bank, 32 Vt. 709 ; Beards v. Wheeler, 18 
 N. Y. Supr. 539. 
 
 10 Savings Bank v. Bates, 8 Conn. 505 ; Tillon v. Britton, 9 N. J. 120. 
 
PREFERENCES. 187 
 
 perty. A large debt may be split up into small sums, so 
 as to bring it within a magistrate's jurisdiction, and judg- 
 ments may be confessed thereon, and the property of the 
 debtor taken on executions. 1 An attachment may be 
 issued, or a mortgage may be executed and placed on 
 record, 2 without the knowledge of the creditor. 3 The 
 debtor may also apply his labor to increase the value of 
 property which has been mortgaged.* A preference may 
 be given to secure a future or contingent liability as well 
 as a present debt. 5 A mere representation that the cred- 
 itor wishes to protect the property from .executions, or 
 putting other creditors off their guard as to the debtor's 
 property, 6 will not of itself render the preference fraudu- 
 lent. 7 The preference may be made to take effect at the 
 death of the debtor. 8 The fact that the debtor at the 
 time of giving the preference is about to abscond, 9 does not 
 render it void. 
 
 Intent to Defeat an Execution. — A preference may 
 be given and received for the express purpose of defeating 
 an execution, 10 for the mere intent to defeat an execution 
 
 'Floyd v. Goodwin, 8 Yerg. 484; Newdigate v. Lee, 9 Dana, 17; 
 L'Avender v. Thomas, 18 Geo. 668 ; Bank v. Planter's Bank, 22 Geo. 
 466 ; Alexander v. Young, 23 Geo. 616. 
 
 8 Ensworth v. King, 50 Mo. 477. 
 
 8 Baird v. Williams, 36 Mass. 381 ; vide Eyan v. Daly, 6 Cal. 238. 
 
 4 Perry v. Pettingall, 33 N. H. 433. 
 
 5 Pringle v. Sizer, 2 Eich. (N. S.) 59 ; Gibson v. Walker, 11 Ired. 327. 
 
 6 Magee v. Eaiguet, 64 Penn. 110. 
 
 1 Eeynolds v. Wilkins, 14 Me. 104. 
 
 8 Morse v. Slason, 13 Vt. 296 ; Exton v. S^ott, 6 Sim. 31. 
 
 9 Garr v. Hill, 9 N. J. Eq. 210. 
 
 10 Holbird v. Anderson, 5 T. E. 235 ; Wood v. Dixie, 53 E. C. L. 892 ; 
 s. c. 7 Q. B. 892 ; Funk v. Staats, 24 111. 632 ; Darvill v. Terry, 6 H. & N. 
 807 ; Hall v. Arnold, 15 Barb. 599 ; Hartshorne v. Eames, 31 Me. 93 ; 
 Gassett v. Wilson, 3 Fla. 235 ; Wheaton v. Neville, 19 Gal. 41 ; Kuyken- 
 dall v. McDonald, 15 Mo. 416 ; Eich v. Levy, 16 Md. 74 ; Weller v. Way- 
 
188 PREFERENCES. 
 
 does not of itself constitute fraud. The payment of a just 
 debt is what the law admits to be rightful, and is not, 
 therefore, fraudulent, either in law or in fact. The pre- 
 ferred creditor cannot be affected injuriously with notice of 
 the debtor's intent to prefer, and thereby defeat an execution, 
 because the purpose is honest, and such as the law sanc- 
 tions. This is not delaying or hindering within the mean- 
 ing of the statute. It does not deprive other creditors of 
 any legal right, for they have no right to a priority. 1 
 One creditor of a failing debtor is not, under the statute, 
 bound to take care of the others. 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. 3 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. 3 Fraud, in its 
 
 land, 17 Johns. 102 ; Waterbury v. Sturtevant, 18 Wend. 353 ; Wilder v. 
 Winne, 6 Cow. 284; Barr v. Hatch, 3 Ohio, 527; Hendricks v. Mount, 5 
 N. J. 738 ; Walden v. Murdock, 23 Cal. 540 ; Goodwin v. Hamill, 26 
 N. J. Eq. 24 ; Steele v. Moore, 54 Ind. 52 ; Carpenter v. Cushman, 121 
 Mass. 265 ; Frazer v. Thatcher, 49 Tex. 26 ; Shelley v. Boothe, 73 Mo. 
 74; Nortcliffe v. Warburton, 4 DeG-., P. & J. 449. 
 
 1 TJhler v. Maulfair, 23 Penn. 481 ; Bird v. Sitken, Rice Eq. 73. 
 
 8 Covanbovan v. Hart, 21 Penn. 495 ; Auburn Bank v. Pitch, 48 Barb. 
 344 ; Crawford v. Kirksey, 55 Ala. 282. 
 
 a Dana v. Stamfords, 10 Cal. 269 ; Waterbury v. Sturtevant, 18 Wend. 
 353 ; Thornton v. DaYenport, 2 111. 296 ; Ford v. Williams, 3 B. Mon. 
 
, PREFERENCES. 189 
 
 legal sense, cannot be predicated of such a transaction. 1 
 Wherever there is a true debt, and a real transfer for an 
 adequate consideration, there is no collusion. 2 
 
 Secret Motives Immaterial. — All that the law re- 
 quires in the case of a preference is good faith. 3 Where 
 creditors are equally honest, they are equally favored by 
 the law, and their rights are determined according to their 
 respective priorities. 4 The secret motives which prompt 
 the preference are immaterial. The law can take no 
 cognizance of feelings and intentions which are not mani- 
 fested by external conduct. It can not assign a bad motive 
 to an act which is not wrong either in itself or in its neces- 
 sary consequences. When the act is right, no secret feel- 
 ing can change its character. In contemplation of law, the 
 motive which results in proper action is not a bad one. 5 
 The desire to avoid a sacrifice, 6 or to prevent an expected 
 criminal prosecution, 7 or an expectation to receive future 
 employment, 8 or that the property will be settled upon 
 the debtor's wife or family, 9 or mere caprice, or favoritism, 
 
 550 ; Worland v. Kimberlin, 6 B. Mon. 608 ; Jones v. Naughright, 10 
 N. J. Eq. 298 ; Young v. Dumas, 39 Ala. 60 ; Gray v. St. John, 35 111.- 
 222; Banfield v. Whipple, 96 Mass. 13 ; Kennaird v. Adams, 11 B. Mon. 
 102; Thornton v. Tandy, 39 Tex. 544; vide Ashmead v. Hean, 13 Penn. 
 
 584. 
 
 1 Chase v. Walters, 28 Iowa, 460 ; Auburn Bank v. Pitch, 48 Barb. 
 
 344; Kennaird v. Adams, 11 B. Mon. 102. 
 
 2 Clemens v. Davis, 7 Penn. 263. 
 
 8 Phettiplace v. Sayles, 4 Mason, 312; Ford v. Williams, 3 B. Mon. 
 550. 
 
 4 Lloyd v. Williams, 21 Penn. 327. 6 Bunn v. AM, 21 Penn. 387. 
 
 6 Barr v. Hatch, 3 Ohio, 527 ; Wheaton v. Neville, 19 Cal. 41. 
 
 ' Marbury v. Brooks, 7 Wheat. 556 ; s. C. 11 Wheat. 78. 
 
 8 Crawford v. Austin, 34 Md. 49. 
 
 > Young v. Stallings, 5 B. Mon. 307 ; Cureton v. Doby, 10 Rich. Eq. 
 411. 
 
190 PREFERENCES. 
 
 or the gratification of secret ill-will, 1 does not affect the 
 validity of the transfer, for such secret motives are not the 
 subject 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. 2 
 
 Preference must be in Good Faith and Real. — A 
 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. 3 The dis- 
 tinction is between a transfer made solely by way of 
 preference of one creditor over others, and a similar trans- 
 fer made with a design to secure some benefit or advantage 
 therefrom to the debtor, 4 or to delay creditors in the col- 
 lection of their debts. 5 While the law permits an insol- 
 vent debtor to make choice of the persons he will pay, it 
 denies him the right in doing it to contrive that other 
 creditors shall never be paid, 6 or to use the debt of the 
 preferred creditor as a colorable consideration to screen 
 
 1 Spaulding v. Strang, 37 N. Y. 135 ; s. C. 38 N". T. 9 ; 36 Barb. 310 ; 
 32 Barb. 235. 
 
 2 York County Bank v. Carter, 38 Perm. 446 ; Gardner Nat'l Bank v. 
 Hagar, 65 Me. 359. 
 
 8 Welcome v. Balchelder, 23 Me. 85 ; Jarolawski v, Simon, 3 Brews. 
 37 ; Cox v. Miller, 54 Tex. 16 ; Pierce v. Rehfuss, 35 Mich. 53 ; Union 
 Nat'l Bank v. Warner, 19 N. Y. Supr. 306 ; Phinizy v. Clark, 62 Geo. 
 623 ; Blanchard v. McKey, 125 Mass. 124 ; Thompson v. Purr, 57 Miss. 
 478. 
 
 «Banfleld v. Whipple, 96 Mass. 13 ; Barr v. Hatch, 3 Ohio, 527 ; Bar- 
 tels v. Harris, 4 Me. 146 ; Bullock v. Irvine, 4 Munf. 450 ; Giddings v. 
 Sears, 115 Mass. 505 ; Bixby v. Carskaddon, 58 Iowa, 533 ; Cordes v. 
 Straszer, 8 Mo. Ap. 61. 
 
 6 Johnson v. Whitwell, 24 Mass. 71 ; Roe v. Harrison, 14 S. C. 624 ; 
 Solberg v. Peterson, 27 Minn. 451 ; Livermore v. McNair, 34 N. J. Eq. 
 478 ; Mitchell v. McKibbin, 8 N. B. R. 548. 
 
 6 Drury v. Cross, 7 Wall. 299 ; James v. Railroad Company, 6 Wall. 
 752 ; Gordon v. Clapp, 113 Mass. 335 ; Smith v. Schwed, 9 Fed. Rep. 483. 
 
PREFERENCES. 191 
 
 and protect his property from their claims, 1 or to delay, 
 hinder, and embarrass them in the enforcement of their 
 demands. 2 
 
 Adequacy of Consideration - . — The amount of the 
 property transferred compared with the debt intended to 
 be secured or paid, and the number, amount, and character t 
 of the other debts, are proper subjects for consideration in 
 determining the good faith of the transaction towards, 
 other creditors. 3 The property must bear a reasonable 
 proportion to the preferred debt. 4 
 
 Preference Tainted by Secret Trust. — The terms 
 upon which the property is transferred must be free from 
 
 "Twyne's Case, 3 Co. 80; Moore, 638; Benton v. Tornhill, 2 Marsh. 
 427 ; 7 Taunt. 149 ; Graham v. Furber, 78 E. C. L. 410 ; 14 C. B. 410 
 Devries v. Phillips, 63 N. C. 53 ; Pulliam v. Newberry, 41 Ala. 168 
 Hartshorne v. Eames, 31 Me. 93 ; Passmore v. Eldridge, 12 S. & R. 198 
 Cans v. Renshaw, 2 Penn. 34 ; Goodhue v. Berrien, 2 Sandf. Ch. 630 
 Choteau v. Sherman, 11 Mo. 385 ; Johnson v. Sullivan, 23 Mo. 474 
 Clarkson v. White, 8 Dana, 11 ; Foster v. Grigsby, 1 Bush. 86 ; Kirtland 
 v. Snow, 20 Conn. 23 ; Kuykendall v. McDonald, 15 Mo. 416 ; Constantine 
 v. Twelves, 29 Ala. 607; Mangum v. Finucane, 38 Miss.' 354; Prout v. 
 Vaughan, 52 Vt. 451 ; David v. Birchard, 53 Wis. 492. 
 
 2 Stoddard v. Butler, 20 Wend. 507 ; 7 Paige, 163 ; Reeves v. Shry, 39 
 Tex. 634 ; Kilby v. Haggin, 3 J. J. Marsh. 208 ; Cleveland v. Railroad Co., 
 7 A. L. Reg. 536 ; Edrington v. Rogers, 15 Tex. 188 ; Crowninshield v. 
 Kittredge, 48 Mass. 520 ; Bunn v. Ahl, 29 Penn. 387 ; Hancock v. Horan, 
 15 Tex. 507 ; Reynolds v. Welch, 47 Ala. 200 ; Henderson v. Henderson, 
 55 Mo. 534; Smith v. Hardy, 36 Wis. 417 ; Cater v. Collins, 2 Mo. Ap. 
 225; Shelley v. Boothe, 73 Mo. 74. 
 
 8 Glenn v. Grover, 3 Md. 212; s. a. 3 Md. Ch. 29 ; Adams v. Wheeler, 
 27 Mass. 199 ; Kuykendall v. McDonald, 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 ; s. c. 18 C. B. 505 ; Jaro- 
 lawski v. Simon, 3 Brews. 37; Laidlaw v. Gilmore, 47 How. Pr. 67; 
 Olmstead v. Mattison, 45 Mich. 617. 
 
 4 Rahn v. McElrath, 6 Watts, 151 ; Robinson v. Stewart, 10 N". Y. 
 189 ; Jenkins v. Einstein, 3 Biss. 128 ; Shelton v. Church, 38 Conn. 416 ; 
 Bailey v. Kennedy, 2 Del. Ch. 12 ; Dyer v. Rosenthal, 45 Mich. 588. 
 13 
 
192 PREFERENCES. 
 
 all engagements to deliver any portion of it for the benefit 
 or advantage of the debtor, for the law will not tolerate 
 any contrivance whereby the debtor devotes his property 
 to certain creditors in preference to the rest, with the 
 secret reservation of a possible interest to himself. 1 If the 
 preference, therefore, is merely a temporary arrangement 
 to prevent a sacrifice of the property and preserve the 
 rights of all to an equal distribution, with an understand- 
 ing 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. 2 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 et bonum est, si per 
 fraudem petatur, malum, et injustum efficitur. The law 
 looks with great jealousy upon the manner of giving 
 preferences, and denounces all departures from good faith, 
 and requires that the parties shall not secure any covert 
 advantage to the debtor in prejudice of his creditors. 3 
 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 con- 
 trary, 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 under- 
 standing constituting a trust in the creditor in derogation 
 or contravention of the ostensible alienation, or the trans- 
 
 1 Connelly v. Walker, 45 Penn. 449 ; Bentz v. Biley, 69 Penn. 71. 
 
 2 Johnson v. Whitwell, 24 Mass. 71 ; Low v. Graydon, 50 Barb. 414 ; 
 Dalton v. Currier, 40 N. H. 237. 
 
 3 White v. Graves, 7 J. J. Marsh. 523 ; Garland v. Rives, 4 Band. 282 ; 
 Pettibone v. Stevens, 15 Conn. 19 ; Kissam v. Edmondson, 1 Ired. Eq. 
 180 ; Menton v. Adams, 49 Cal. 620. 
 
PREFERENCES. 193 
 
 fer will be deemed a cover, and consequently void. 1 If 
 there is any such secret understanding, it will be void, 
 although the creditor is not influenced by any fraudulent 
 or improper motive, but makes the best arrangement that, 
 he can to secure his debt. 2 
 
 Creditor'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 creditors. 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 overween- 
 ing tendency to detect collusion. 3 The gift, however, must 
 be the act of the creditor, independent of any arrangement 
 between the debtor and creditor at the time, or as a part 
 of the contract to convey property either as a security or 
 in apparent payment 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 pjrice for obtaining security or payment for the bal- 
 ance, the transaction is fraudulent. Whatever benefit is 
 secured, either openly or covertly, to the debtor out of 
 the effects conveyed by him is inconsistent with the pro- 
 
 1 Jackson v. Brownell, 3 Caines, 222 ; Meeker v. Harris, 19 Cal. 278. 
 
 8 Reynolds v. Welch, 47 Ala. 200 ; Humphries v. Freeman, 22 Tex. 45. 
 
 » Cureton v. Doby, 10 Rich. Eq. 411 ; Webb v. Roff, 9 Ohio St. 430 ; 
 Young v. Dumas, 39 Ala. 60 ; Young v. Stallings, 5 B. Mon. 307 ; Winch 
 v. James, 68 Penn. 297. 
 
194 ' PREFERENCES. 
 
 fessed purpose of conveying to satisfy or secure the debt 
 to the creditor, and for that reason is mala fide and void. 1 
 
 No Estoppel from Possession. — Although a debtor is 
 credited upon the faith of his ownership of property, this 
 does not prevent him from conveying it in good faith to a 
 creditor in payment of a debt. 2 
 
 Burden of Proof. — The burden of proof rests upon 
 the creditors who impeach the preference, 3 and the fraud- 
 ulent intent must be clearly shown. 4 
 
 When Creditor may Purchase. — Although the pur- 
 chase exceeds the amount of the indebtedness, still if the 
 excess is reasonably necessary for attaining the lawful 
 purpose of satisfying the actual debt, the purchase to the 
 Whole extent may be attributed 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. 5 In payment for the excess the 
 creditor may give either money or his note. 6 
 
 1 Kissam v. Edmondson, 1 Ired. Eq. 180 ; Garland v. Eives, 4 Rand. 
 282 ; Marshall v. Hutchinson, 5 B. Mon. 298. 
 
 8 Tomlinson v. Matthews, 98 111. 178 ; Syracuse Chilled Plow Co. v. 
 Wing, 85 N. T. 421 ; s. C. 27 N. T. Supr. 206 ; Brookville Nat'l Bank 
 v. Trimble, 76 Ind. 195 ; vide Budd v. Atkinson, 30 N. J. Eq. 530. 
 
 » Glenn v. Grover, 3 Md. 212 ; 3 Md. Ch. 29 ; Johnson v. McGrew, 11 
 Iowa, 151. 
 
 4 Barr v. Hatch, 3 Ohio, 527 ; Jones v. Naughright, 10 N. J. Eq. 298. 
 
 6 Young v. Stallings, 5 B. Mon. 307 ; Ford v. Williams, 3 B. Mon. 
 550 ; Little v. Eddy, 14 Mo. 160 ; Bear's Estate, 60 Penn. 430 ; Hobbs v. 
 Davis, 50 Geo. 213; Troustinev. Lask, 4 Baxter, 162; Beurmannv. Van 
 Buren, 44 Mich. 496 ; Reehling v. Byers, 94 Penn. 316. 
 
 • Hobbs v. Davis, 50 Geo. 213. 
 
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, 1 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. 2 The power of a debtor to sell implies 
 the corresponding right of another to purchase. 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. 
 
 Why Innocent Vendee is Protected. — 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- 
 
 1 Churchill v. Wells, 7 Gold. 364; Copis v. Middleton, 2 Madd. 410; 
 Phettiplace v. Sayles, 4 Mason, 312 ; Pecot v. Armelin, 21 La. An. 667 ; 
 Hardey v. Green, 12 Beav. 182 ; Smith v. Henry, 2 Bailey, 118 ; s. c. 1 
 Hill, 16; Miller v. Kirby, 74 111. 242. 
 
 ' Atwood v. Impson, 20 N. J. Eq. 150. 
 
196 THE BONA FIDES OF THE TRANSFER. 
 
 son not having at the time of such conveyance or assurance 
 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 enforces, 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 ownership 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 rights of the purchaser, because the mere 
 legal title is transferred 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 be 
 void, and the right to a bona fide purchaser for a valuable 
 consideration is protected by the statute, because 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 responsi- 
 bility of the debtor, but has paid the consideration upon 
 the faith of the debtor's actual title to the specific property 
 transferred. 1 A man paying a full and valuable consid- 
 eration in good faith for the property may moreover 
 justly suppose that the purchase, so far from diminishing 
 the means of the vendor for paying his debts, will afford 
 him a facility for doing so. 2 It is upon these grounds that 
 the rights of a grantee who acts in good faith, and gives a 
 valuable consideration, are protected although there may 
 
 1 Seymour v. Wilson, 19 N. Y. 417. 3 Pierson v. Tom, 1 Tex. 577. 
 
THE BONA FIDES OF THE TRANSFER. 197 
 
 have been a fraudulent intent on the part of the debtor. 1 
 The same principle is asserted in the civil law, Hoc edictwm 
 ewn coercet qui sciens ewn in fraudem creditorum hoc 
 facere, suscepit quod in fravdem fiebat. Quare si quid in 
 
 *Heroy v. Kerr, 21 How. Pr. 409 ; Carpenter v. Muren, 42 Barb. 300; 
 Waterbury v. Sturtevant, 18 Wend. 353 ; Borland v. Mayo, 8 Ala. 104 ; 
 Waters v. Biggin, 19 Md. 536 ; Troxall v. Dunnock, 24 Md. 163 ; Hessing 
 v. McCloskey, 37 111. 341 ; Smith v. Henry, 2 Bailey, 118 ; s. o. 1 Hill, 
 16 ; Sibley v. Hood, 3 Mo. 290 ; Wilson v, Lott, 5 Fla. 305 ; Swinerton 
 v. Swinerton, 1 Dane Ab. 628 ; Kittredge v. Sumner, 28 Mass. 50 ; 
 Green v. Tanner, 49 Mass. 411 ; King v. Marissal, 3 Atk. 192 ; Badger v. 
 Story, 16 N. H. 168 ; Johnson v. Johnson, 44 Mass. 63 ; Currier v. Tay- 
 • lor, 19 N. H. 189 ; Sands v. Hildreth, 14 Johns. 493 ; s. c. 2 Johns. Ch. 35 ; 
 Waterbury v. Sturtevant, 18 Wend. 353 ; Hall v. Arnold, 15 Barb. 599 ; 
 Anderson v. Hooks, 9 Ala. 704 ; Davis v. Tibbets, 39 Me. 279 ; McLaren 
 v. Thompson, 40 Me. 284 ; Union Bank v. Toomer, 2 Hill Ch. 27 ; Blair 
 v. Bass, 4 Blackf. 539 ; Thompson v. Saunders, 6 J. J. Marsh. 94 ; Violett 
 v. Violett, 2 Dana, 322 ; Hutchinson v. Horn, 1 Smith, 242 ; S. C. 1 Ind. 
 363 ; Ratcliffe v. Trimble, 12 B. Mon. 32 ; Sterling v. Ripley, 3 Chand. 
 166; Splawn v. Martin, 17 Ark. 146; Ewing v. Bunkle, 20 111. 448 ; Frank 
 v. Peters, 9 Ind. 344 ; Dart v. Parmer's Bank, 27 Barb. 337 ; Pifleld v. 
 Gaston, 12 Iowa, 218 ; Miller v. Byran, 3 Iowa, 58 ; Palmer v. Hender- 
 son, 20 Ind. 297 ; Sisson v. Boath, 30 Conn. 15 ; Hutchinson v. Watkins, 
 17 Iowa, 475 ; Meixsell v. Williamson, 35 111. 529 ; Apperson v. 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; Web- 
 ster v. Folsom, 58 Me. 230 ; Lassiter v. Davis, 64 N. C. 498 ; Rose v. 
 Coble, 1 Phil. 517 ; McCormick v. Hyatt, 33 Ind. 546 ; Durfee v. Pavitt, 
 14 Minn. 424 ; Merchants' Bank v. Newton, 22 N. J. Eq. 58 ; Parrish v. 
 Danford, 1 Bond, 345 ; Reiger v. Davis, 67 N. C. 185 ; Ruhl v. Phillips, 
 48 N. T. 125 ; Kyger v. Skirt Co. 34 Ind. 249 ; Lipperd v. Edwards, 39 
 Ind. 165 ; Smith v. Pate, 3 Rich. (N. S.) 204 ; Blake v. Sawin, 92 Mass. 
 340; Wilson v. Fuller, 9 Kans. 176 ; Diefendorf v. Oliver, 8 Kans. 365 ; 
 Jenkins v. Einstein, 3 Biss. 128 ; Ackerman v. Smiley, 37 Tex. 211 ; 
 Gentry v. Robinson, 55 Mo. 260 ; Herkelrath v. Stookey, 63 111. 486 ; 
 Shearon v. Henderson, 38 Tex. 245 ; Preston v. Twiner, 36 Iowa, 671 ; 
 Beadless v. Miller, 9 Bush. 405 ; Collins v. Cook, 40 Tex. 238 ; Trieber v. 
 Andrews, 31 Ark. 163 ; Tompkins v. Nichols, 53 Ala. 199 ; First Nat'l 
 Bank v. Irons, 28 N. J. Eq. 43 ; Hatch v. Jordan, 74 111. 414 ; Tootle V. 
 Dunn, 6 Neb. 93 ; Johnston v. Field, 60 Ind. 377 ; Kellogg v. Aherin, 48 
 Iowa, 299 ; Keith v. Proctor, 8 Baxter, 189 ; Evans v. Nealis, 69 Ind. 
 
198 THE BONA FIDES OF THE TRANSFER. 
 
 fravdem creditorum factum sit, si tamen is qui cepit, ignor- 
 avit, cessare videntur verba edicti. 1 
 
 Grantee without Consideration not Protected. — 
 An inquiry into the good faith of the grantee is only 
 necessary, however, when there is a valuable consideration 
 for the transfer. 2 The mere acceptance of a transfer, with- 
 out a valuable consideration, is of itself sufficient evidence 
 of a participation in the debtor's fraudulent intent. 3 
 Simili modo dicimus et si cm donatum est non esse quaeren- 
 dum an sciente ei cui donatum gestum sit, sed hoc tantum an 
 fraudentw creditores. Nee videtur injuria affici is qui 
 ignoravit cum lucrum extorqueatur, non damnum mfligatur. 
 In hos tamen qui ignorantes ab eo qui solvendo non sit, 
 liberalitatem acceperunt, kactenus actio erit danda, quatenus 
 locupletiores facti sunt ; ultra non} A creditor, however, 
 who takes a transfer as security for or in payment of an 
 antecedent debt is deemed to be a purchaser for a valuable 
 consideration, and is within the protection of the proviso 
 unless he has notice of or participates in some fraudulent 
 intent on the part of the grantor. 5 
 
 148 ; Tyberandt v. Raucke, 96 111. 71 ; Norris v. Persons, 49 Wis. 101 ; 
 Smith v. Schmitz, 10 Neb. 600 ; Bradley v. Ragsdale, 64 Ala. 558 ; 
 Florence 8. M. Co. v. Zeigler, 58 Ala. 221 ; Morse v. Aldrich, 130 Mass. 
 578 ; State v. Tubessing, 6 Mo. Ap. 585. 
 
 1 Dig. lib. 42, tit. 9, § 8 ; 1 Domat. B. 2, tit. 10. 
 
 ' Newman v. Cordell, 43 Barb. 448 ; Wood v. Hunt, 38 Barb. 302 ; 
 Peck v. Carmichael, 9 Yerg. 325 ; Gamble v. Johnson, 9 Mo. 605 ; Swartz 
 v. Hazlet, 8 Cal. 118; Wise v. Moore, 31 Geo. 148; Clark v. Chamber- 
 lain, 95 Mass. 257 ; Hicks v. Stone, 13 Minn. 434; Lee v. Figg, 37 Cal. 
 328 ; Spaulding v. Blythe, 73 Ind. 93 ; Sherman v. Hogland, 73 Iud. 472 ; 
 Martin v. Rexroad, 15 W. Va. 512 ; Pickett v. Pipkin, 64 Ala. 920. 
 
 3 Belt v. Raguet, 27 Tex. 471. 
 
 "Dig. lib. 42, tit. 9, § 11 ; 1 Domat. B. 2, tit. 10. 
 
 6 Dudley v. Danforth, 61 N. Y. 626 ; Archer v. O'Brien, 14 N. Y. 
 Supr. 146 ; Coleman v. Smith, 55 Ala. 368 ; Beurmann v. Van Buren, 44 
 Mich. 496 ; Thompson v. Purr, 57 Miss. 478 ; Surget v. Boyd, 57 Miss. 
 485 ; Reehling v. Byers, 94 Penn. 316. 
 
the bona fides of the transfer. 199 
 
 Good Faith as well as a Valuable Consideration. — 
 A transfer, however, made on a good consideration, if it is 
 not also bona 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 considera- 
 tion, but also bona fide. 1 If a transfer is for a valuable 
 consideration, the only question is whether it is bona fide. 2 
 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. 3 The reason is manifest. 
 Fraud may as readily be eiFected 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 
 
 1 Twyne's Case, 3 Co. 80 ; Moore, 638 ; Copis v. Middleton % 2 Madd. 
 410 ; Harrison v. Kramer, 3 Iowa, 543 ; Glenn v. Eandall, 2 Md. Ch. 220 ; 
 Wood v. Chambers, 20 Tex. 247. 
 
 s Hale v. Saloon Omnibus Co., 4 Drew, 492 ; s. o. 28 L. J. Ch. 777 ; 
 Harman v. Eichards, 10 Hare, 81 ; Holmes v. Penney, 3 K. & J . 90. 
 
 3 Cadogan v. Kennett, 2 Cowp. 432 ; Worseley v. DeMattos, 1 Burr. 467 ; 
 Devon v. Watts, Doug. 86 ; Wickham v. Miller, 12 Johns. 320 ; Stein v. 
 Hermann, 23 Wis. 132 ; Pulliam v. Newberry, 41 Ala. 168 ; Chappel v. 
 Clapp, 29 Iowa, 161 ; Harrison v. Jaquess, 29 Ind. 208 ; Sayre v. Freder- 
 icks, 16 N. J. Eq. 205 ; Carny v. Palmer, 2 Cold. 35 ; Weisiger v. Chis- 
 holm, 22 Tex. 670 ; s. c. 28 Tex. 780 ; Castro v. lilies, 22 Tex. 479 ; 
 Gardinier v. Otis, 13 Wis. 460 ; Smith v. Culbertson, 9 Rich. 106 ; Barrow 
 v. Bailey, 5 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 Miss. 277 ; Johnson v. 
 Sullivan, 23 Mo. 474; Rogers v. Evans, 3 Ind. 574 ; Borland v. Mayo, 8 
 Ala. 104 ; Shannon v. Commonwealth, 8 S. & R. 444 ; Johnson v. Brandis, 
 1 Smith, 263 ; Pettus v. Smith, 4 Rich. Eq. 197 ; Walcott v. Brander, 10 
 
200 THE BONA FIDES OF THE TRANSFER. 
 
 same as if nothing were paid. 1 As it is the intent to with- 
 draw the debtor's property from the reach of his creditors 
 that generally makes a transfer for full value fraudulent, 
 a real exchange of a debtor's land for other land in the 
 same neighborhood 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 circum- 
 stances. 2 
 
 Notice to Grantee. — Notice makes a man a mala fide 
 purchaser. It is per se evidence of mala fides. 3 If the 
 grantee has notice of the debtor's fraudulent intent, the 
 transfer is void without reference to his actual intent. 
 The law in such case charges him with that guilty know- 
 ledge which makes him a participator in the fraud. 4 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." 5 Quod ait praetor 
 sciente, acoipvmus te conscio et fravdem participante ; non 
 
 Tex. 419 ; Lowry v. Pinson, 2 Bailey, 324 ; Farmers' Bank v. Douglas, 
 19 Miss. 469; Watson v. Dickens, 20 Miss. 608; Moseley v. Gainer, 10 
 Tex. 393 ; Clements v. Moore, 6 Wall. 299 ; Peck v. Land, 2 Geo. 1 ; 
 Cadbury v. Nolen, 5 Penn. 320 ; Ayres v. Moore, 2 Stew. 336 ; Zerbe v. 
 Miller, 16 Penn. 488 ; Alexander v. Todd, 1 Bond, 175 ; Parrish v. Dan- 
 ford, 1 Bond, 345 ; Starin v. Kelly, 36 N. Y. Sup. 366 ; Fishel v. Ireland, 
 52 Geo. 632 ; Christian v. Greenwood, 23 Ark. 258 ; Ferris v. Irons, 83 
 Penn. 179 ; Brinks v. Heise, 84 Penn. 246 ; Randall v. Vroom, 30 N. J. 
 Eq. 353 ; Gebhart v. Merfleid, 51 Md. 322 ; White v. Perry, 14 W. Va. 
 66 ; Savage v. Hazard, 17 Neb. 323 ; Smith v. Muirhead, 34 N. J. Eq. 4 ; 
 Singer v. Jacobs, 11 Fed. Rep. 559. 
 
 1 Rea v. Alexander, 5 Ired. 644 ; Lowry v. Pinson, 2 Bailey, 324 ; 
 Brown v. Foree, 7 B. Mon. 357 ; Kaine v. Weigley, 22 Penn. 179 ; Clem- 
 ents v. Moore, 6 Wall. 299. 
 
 5 Ford v. Williams, 3 B. Mon. 550. 
 
 8 Humphries v. Freeman, 22 Tex. 45. 
 
 4 Hathaway v. Brown, 18 Minn. 414; Roeber v. Bowe, 33 N. T. 
 Supr. 554. 5 Jones v. Boulter, 1 Cox, 288. 
 
THE BONA FIDES OF THE TRANSFER. 201 
 
 enim, si simpliciter scio illwm creditores habere, hoc swfftcit 
 ad contendendv/m teneri in factum actione, sed si jparticeps 
 fraudis est. 1 Mere knowledge of the debtor's insolvency, 
 or of a judgment, 3 or of a threatened attachment, 4 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 pro- 
 perty, provided it is not a mere trick to evade an execu- 
 tion. But notice of a fraudulent intent on the part of the 
 debtor will vitiate the transfer. 
 
 Actual Knowledge not Necessary. — It is not neces- 
 sary that the grantee shall have actual knowledge of the 
 debtor's intent to delay, hinder, or defraud his creditors in 
 order to render the transfer void. A knowledge of facts 
 sufficient to excite the suspicions of a prudent man and to 
 put him on the inquiry, 5 or to lead a person of ordinary 
 perception to infer fraud, 6 or the means of knowing by the 
 
 1 Dig. lib. 42, tit. 9. 
 
 8 Atwood v. Impson, 20 U. J. Eq. 150 ; Hughes v. Monty, 24 Iowa, 
 499 ; Bridge v. Loeschigk, 42 ST. T. 426 ; s. o. 42 Barb. 171 ; Sisson v. 
 Roath, 30 Conn. 15 ; Merchants' Bank v. Newton, 22 N. J. Eq. 58 ; 
 Durkee v. Chambers, 57 Mo. 575. 
 
 3 Beals v. Guernsey, 8 Johns. 446 ; Waterbury v. Sturtevant, 18 Wend. 
 353 ; Bunyard v. Seabrook, 1 F. & F. 321. 
 
 4 Lyon v. Rood, 12 Vt. 233 ; Fisher v. Hall, 44 Mich. 493 ; vide Rein- 
 heimer v. Hemingway, 35 Penn . 432. 
 
 « Mills v. Howeth, 19 Tex. 257 ; Green v. Tantum, 19 N. J. Eq. 105 ; 
 s. C. 21 N. J. Eq. 364; Atwood v. Impson, 20 N. J.Eq. 150; Jackson v. 
 Mather, 7 Cow. 301; Smith v. Henry, 2 Bailey, 118; s. O. 1 Hill, 16; 
 Avery v. Johann, 27 Wis. 246 ; Hopkins v. Langton, 30 Wis. 379 ; Hatha- 
 way v. Brown, 18 Minn. 414 ; Nicol v. Crittenden, 55 Geo. 497 ; Phillips 
 v. Reitz, 16 Kans. 396 ; Burnham v. Brennan, 42 N. Y. Sup. 49 ; Massie 
 v. Engart, 32 Ark. 251 ; State v. Ertel, 6 Mo. Ap. 6 ; Simms v. Morse, 
 2 Fed. Rep. 325. 
 
 6 Johnson v. Brandis, 1 Smith, 263 ; Wright v. Brandis, 1 Ind. 336 ; 
 De Witt v. Van Sickle, 29 N. J. Eq. 209. 
 
202 THE BONA FIDES OF THE TRANSFER. 
 
 use of ordinary diligence, 1 amounts to notice and is equiva- 
 lent 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. Res ipse loquitor. 2 If he has notice of facts suffi- 
 cient to put him on the inquiry, he can not be deemed a 
 bona fide purchaser. 3 But in order to affect him with 
 constructive notice it is essential that he shall have a 
 knowledge of facts and circumstances naturally and justly 
 calculated to awaken suspicions of the fraudulent intent in 
 the mind of a man of ordinary care and prudence, thus 
 making it his duty to pause and inquire, and a wrong on 
 his part not to do so before consummating the purchase. 4 
 If he has notice of such facts and circumstances, he is con- 
 sidered either to know the fraudulent intent, or to pur- 
 posely omit to make those inquiries which an ordinarily 
 cautious and prudent man in the same situation would 
 make. And in either case he is chargeable with partici- 
 pation in the fraud. On this point it is material to ascer- 
 tain whether he has notice that there are any creditors or 
 not, for if he has not, he can not have notice of a fraudulent 
 intent. 5 If he has notice that there are creditors, this in 
 connection with other facts may be sufficient to affect him 
 with notice of a fraudulent intent. 6 If the grantor and 
 
 1 Humphries v. Freeman, 22 Tex. 45 ; Farmers' Bank v. Douglas, 19 
 Miss. 469 ; Foster v. Grigsby, 1 Bush, 86 ; Garahay v. Bayley, 25 Tex. 
 (Supp.) 294. Contra, Seavy v. Dearborn, 19 N. H. 351 ; Brown v. Foree, 
 7 B. Mon. 357; Sterling v. Ripley, 3 Chand. 166. 
 
 2 Smead v. Williamson, 16 B. Mon. 492 ; Holt v. Creamer, 34 N. J. 
 Eq. 181. 
 
 3 Goodenough v. Spencer, 2 N. Y. Supr. 509; De Witt v. Van Sickle, 
 29 N. J. Eq. 209 ; Singer v. Jacobs, 11 Fed. Rep. 559. 
 
 4 Hopkins v. Langton, 30 Wis. 379. 
 
 6 Erdhouse v. Hickenlooper, 2 Bond, 392 ; Hunt v. Hoover, 34 Iowa, 
 77. 6 Peirce v. Merritt, 70 Mo. 275. 
 
THE BONA FIDES OP THE TRANSFER. 203 
 
 grantee are relatives or are intimate, this is a fact from 
 which it may be inferred that the latter knows the former's 
 financial condition. 1 The notice of the fraudulent intent in 
 order to affect the grantee must exist prior to the comple- 
 tion of the sale. 2 Notice before the payment of the pur- 
 chase money is sufficient. 3 If a note is given for the 
 purchase money which is not negotiable, notice before the 
 payment thereof is sufficient. 4 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. 5 Illud certe 
 sufficit et si unv/m scit creditoremfravdari, meter os ignoravit, 
 fore locum actioni. 6 But if he has no such notice, it is not 
 necessary that he shall inquire into the motives of the 
 grantor in making the sale. 7 
 
 Motives of Debtor and Grantee need not be the 
 Same. — It is not necessary that the debtor and the grantee 
 shall be actuated by like motives to cheat and defraud the 
 grantor's creditors. The motives and intentions of the 
 debtor and grantee may be different. 8 If the grantee has 
 notice at the time that the debtor is transferring his pro- 
 perty to delay, hinder, or defraud his creditors, it will 
 
 . — .. — * 
 
 1 Alexander v. Todd, 1 Bond, 175 ; Thames v. Rembert, 63 Ala. 561 ; 
 Dunlap v. Haynes, 4 Heisk. 476 ; Castro v. lilies, 22 Tex. 479 ; Smith v. 
 Schwed, 9 Fed. Rep. 483 ; Burtus v. Tisdall, 4 Barb. 571. 
 
 3 Gottberg v. O'Connor, 44 TS. T. Sup. 554. 
 
 3 Parkinson v. Hanna, 7 Blackf. 400 ; Nicol v. Crittenden, 55 Geo. 497 ; 
 Massie v. Engart, 32 Ark. 251 ; Florence S. M. Co. v. Zeigler, 58 Ala. 
 221 ; vide Parker v. Crittenden, 37 Conn. 148. 
 
 4 Matson v. Melchor, 42 Mich. 477; Starin v. Kelly, 36 N. Y. Sup. 
 366 ; Arnholt v. Hartwig, 73 Mo. 485. 
 
 6 Ruffing v. Tilton, 12 Ind. 259. 
 
 6 Dig. lib. 42, tit. 9. ' Peirce v. Merritt, 70 Mo. 275. 
 
 s Bobb v. Woodward, 50 Mo. 95 ; Smith v. Henry, 1 Bailey, 118 ; 
 S. O. 1 Hill, 16 ; Humphries v. Freeman, 22 Tex. 45 ; King v. Russell, 40 
 Tex. 124. 
 
204 THE BONA FIDES OF THE TRANSFER. 
 
 make the transfer void although he has no wish to defraud 
 them, for the motive is imputed to him as a fraud in law, 
 and makes him a mala fide purchaser. If, for instance, he 
 purchases because he considers the property cheap, and 
 this is the only motive that induces him to purchase, or 
 because he desires to save a debt due to him by the 
 grantor, the transfer is nevertheless fraudulent. 1 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, and which are both honest 
 and adequate to every intent, and in exclusion 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 con- 
 templated fraud, when he purchases for the preservation 
 and promotion of his own business interest. The decision 
 is placed upon the ground that such a purchaser is not a 
 mere volunteer. 2 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 to a 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 between those 
 who form the design and those who afterwards enter into 
 it with a knowledge of its character and aid in carrying it 
 
 ! Edgell v. Lowell, 4 Vt. 405 ; Fuller v. Sears, 5 Vt. 527. 
 3 Root v. Reynolds, 32 Vt. 139. 
 
THE BONA FIDES OF THE TRANSFER. 205 
 
 out. 1 The grantee is also bound by the acts of his agent 
 which he adopts and confirms, 2 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 delay, 
 hinder or defraud in the legal sense of those terms as .used 
 in the statute. The law, however, does not deprive even 
 an insolvent man of the right to sell his property to pay 
 his debts. 8 Where the necessary effect of a transfer 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 conveyance to the creditors 
 themselves in discharge of real debts and at a fair price. 4 
 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 intention to prefer one's self to 
 all creditors. 5 Although a transfer 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 sale intended to supply the means of pay- 
 
 1 Stovall v. Farmers' Bank, 16 Miss. 305. 
 
 2 White v. Graves, 7 J. J. Marsh. 523 ; Wiley v. Knight, 27 Ala. 336 ; 
 Pope v. Pope, 40 Miss. 516 ; Bobb v. Woodward, 50 Mo. 95 ; Clark v. 
 Fuller, 39 Conn. 238 ; Lund v. Equitable Life A. Society, 31 N. J. Eq. 355 ; 
 Radford v. Folsom, 3 Fed. Rep. 199. 
 
 3 Wood v. Shaw, 29 111.444; Lowry v. Howard, 35 Ind. 170; Esk- 
 ridgev. Abrahams, 61 Ala. 134; Van Kleeck v. Miller, 19 N. B. R. 484. 
 
 4 Ford v. Williams, 3 B. Mon. 550; Gregory v. Harrington, 33 Vt. 
 241 ; Brown v. Foree, 7 B. Mon. 357 ; Ocoee Bank v. Nelson, 1 Cold. 
 186 ; Ruhl v. Phillips, 48 N. Y. 125 ; Norteliffe v. Warburton, 4 De G. F. 
 & J. 449 ; vide Cook v. White, 20 Cal. 598. 
 
 5 Gregory v. Harrington, 33 Vt. 241 ; Bedell v. Chase, 34 N. Y. 386 ; 
 Avery v. Eastes, 18 Kans. 505. 
 
206 THE BONA FIDES OF THE TRANSFER. 
 
 ing just debts is not fraudulent 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 vendee. 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. 1 
 
 Knowledge of Intent to Defeat an Execution.— If 
 the grantee has reasonable grounds for supposing that the 
 debtor intends the transfer as a means to pay 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. 2 His knowledge of the 
 debtor's intent to defeat some of his creditors affords, how- 
 ever, a presumption of a participation in an intent to hin- 
 der, delay or defraud them, and will authorize the con- 
 clusion that he did so participate unless the inference is 
 repelled by the circumstances of the transaction. 3 The 
 question is as to his own actual participation in a fraudu- 
 lent scheme, and this is a question of fact. Although it 
 may be inferred from his knowledge of the debtor's intent 
 
 ' Brown v. Smith, 7 B. Mon. 361 ; Wood v. Shaw, 29 111. 444. 
 
 2 Brown v. Foree, 7 B. Mon. 357. 
 
 8 Kendall v. Hughes, 7 B. Mon. 368 ; Brown v. Foree, 7 B. Mon. 357. 
 
THE BONA FIDES OF THE TRANSFER. 207 
 
 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 
 grantee's knowledge of such intent on the part of the 
 debtor conclusive evidence of his participation in a fraud- 
 ulent intent. This would be to stop in the inquiry before 
 its real end is attained, to make a probable conclusion 
 absolutely 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. 1 
 
 Validity affected by Disposition of Proceeds. — 
 The payment of a full consideration and the appropriation 
 of it to the payment of creditors repel the presumption 
 arising from the grantee's knowledge of the debtor's intent 
 to defeat some of his creditors. 2 Where a part only is so 
 appropriated a difficult point is presented, 3 but if it can be 
 fairly assumed upon all the circumstances that, instead of 
 expecting and intending that the price paid by him should 
 be withheld from creditors, the grantee expected it to be 
 paid to them, and did not make the purchase in order to 
 defraud them, he can not be implicated in the fraud on 
 the ground that he knew of the debtor's intent to thwart 
 
 1 Brown v. Foree, 7 B. Mon. 357 ; Brown v. Smith, 7 B. Mon. 361. 
 
 8 Kendall v. Hughes, 7 B. Mon. 368 ; Brown v. Foree, 7 B. Mon. 357; 
 Johnson v. McGrew, 11 Iowa, 151 ; Uhler v. Maulfair, 23 Penn. 481 ; 
 York County Bank v. Carter, 38 Penn. 446 ; vide Ashmead v. Hean, 13 
 Penn. 584 ; Lcfwry v. Pinson, 2 Bailey, 324. 
 
 8 Ford v. Williams, 3 B. Mon. 550. > 
 
 U 
 
208 THE BONA FIDES OF THE TRANSFER. 
 
 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 busi- 
 ness and traffic of men if every purchase from a debtor 
 were to be conclusively invalidated because the proceeds 
 are subsequently misapplied. 1 When a cloud, however, 
 rests upon the disposition made by the debtor of the 
 money, the bona fides of the grantee must be clearly 
 shown. 2 If the circumstances are sufficient to put him on 
 the inquiry, he must see to it, and know that the money 
 is applied in payment of the grantor's debts, and can not 
 rely upon the debtor's declaration of an intention to so 
 apply it. 3 A deed may be fraudulent, even though it pro- 
 vides upon its face for the payment of all the debts due by 
 the grantor, 4 or the grantee applies the purchase money to 
 pay creditors. 5 
 
 Good Faith affected by Amount of Consideration. 
 It has been truly said that those who undertake to im- 
 peach for mala fides a transfer which has been made for a 
 valuable consideration, have a task of great difficulty to 
 discharge, 6 for the presumption is that it is fair and honest 
 until the contrary is shown by evidence 7 sufficient for that 
 purpose. The participation in the fraud may be shown 
 by circumstances, without the production of direct evi- 
 
 1 Brown v. Foree, 7 B. Mon. 357 ; Brown v. Smith, 7 B. Mon. 361 
 vide Clements v. Moore, 6 Wall. 299. 
 
 s Stanton v. Green, 34 Miss. 576 ; Bastein v. Dougherty, 3 Phila. 30 
 Alexander v. Todd, 1 Bond, 175. 
 
 8 Avery v. Johann, 27 Wis. 246 ; Green v. Tantum, 19 N. J. Eq. 105 
 S. 0. 21 TS. J. Eq. 364. 4 Drum v. Painter, 27 Penn. 148. 
 
 6 Farmers' Bank v. Douglass, 19 Miss. 469. 
 
 •Harman v. Richards, 10 Hare, 81. 
 
 ' Sibley v. Hood, 3 Mo. 290 ; Wilson v. Lott, 5 Fla.»305 ; Glenn v. 
 Grover, 3 Md. 212 ; s.O. 3 Md. Oh. 29. 
 
THE BONA FIDES OF THE TRANSFER. 209 
 
 dence, 1 but the proof must be clear and convincing. 2 The 
 amount and character of the consideration paid are mate- 
 rial when the good faith of the transfer is put in contro- 
 versy. A trifling consideration, merely to give color to 
 the transaction, is not sufficient ; 3 and, on the other hand, 
 the property may sell below what might have been 
 obtained by a careful sale. 4 An inadequate consideration, 
 however, is a badge of fraud, and is not sufficient to sup- 
 port a transfer whose good faith is otherwise impeached. 5 
 If the transfer is in other respects fair and legal, time may 
 be allowed for the payment of the purchase money, 6 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. 7 
 
 Conveyance to Use of Grantor. — It is enacted by 3 
 H. VII, c. 4, that all deeds of gift of goods and chattels, 
 
 1 Anderson v. Tydings, 3 Md. Ch. 167. 
 
 2 Terrell v. Green, 11 Ala. 207. , 
 'Michael v. Gay, 1 F. & F. 409; Monell v. Scherrick, 54 111. 269; 
 
 Galbraith v. Cook, 30 Ark. 417 ; Smart v. Harring, 52 How. Pr. 505. 
 
 4 Hale v. Saloon Omnibus Co., 4 Drew, 492 ; s. c. 28 L. J. Ch. 777 ; 
 Stovall v. Farmers' Bank, 16 Miss. 305. 
 
 6 Kaine v. Weigley, 22 Penn. 179 ; Trimble v. Eatcliff, 9 B. Mon. 511 ; 
 s. c. 12 B. Mon. 32 ; Bobinson v. Robards, 15 Mo. 459 ; Lee v. Hunter, 1 
 Paige, 519 ; Barrow v. Bailey, 5 Fla. 9 ; Arnold v. Bell, 1 Hayw. 396 ; 
 Seaman v. White, 8 Ala. 656 ; State v. Evans, 38 Mo. 150 ; Durkee v. 
 Mahoney, 1 Aik. 116 ; Kuykendall v. McDonald, 15 Mo. 416; Bryant v. 
 Kelton, 1 Tex. 415 ; Bozman v. Draughan, 3 Stew. 243 ; vide Union 
 Bank v. Toomer, 2 Hill Ch. 27 ; Nunn v. 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. S.) 531 ; S. C. 9 W. R. 641 ; 4 De G. & J. 600 ; 4 
 Drew, 628 ; 4 L. T. (N. S.) 750 ; Copis v. Middleton, 2 Madd. 410 ; Wright 
 v. Stannard, 2 Brock. 311 ; Worthy v. Caddell, 76 N. C. 82. 
 
 6 0'jNeil v. Orr, 5 111. 1 ; Starin v. Kelly, 36 N. T. Sup. 366 ; Alex- 
 ander v. Todd, 1 Bond, 175. 
 
 1 Kaine v. Weigley, 22 Penn. 179. 
 
210 THE BONA FIDES OF THE TRANSFER. 
 
 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. The statute is limited to goods and chattels, 
 but the principle is a part of the common law and applies 
 to realty as well as personalty. 1 It is analogous to that 
 of 27 H. VIII, c. 10, in its purpose; but it goes further, 
 and makes the whole transfer void. It is not directed 
 against trusts made with 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 con- 
 sideration. 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 hav- 
 ing just claims upon the grantor or upon the property con- 
 veyed. In all the refinements of uses and trusts, in the 
 midst of multiplied distinctions between legal and equit- 
 able 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. 2 
 
 1 Sandlin v. Robbing, 62 Ala. 477. 
 
 8 Curtis v. Leavitt, 15 N. Y. 9; 8. o. 17 Barb. 309 ; Sandlin v. Rob- 
 bins, 62 Ala. 477. 
 
THE BONA FIDES OF THE TRANSFER. 211 
 
 Object of the Statute. — The true name of this statute 
 is, a statute of personal uses. Its object is to render 
 simply ineffectual purely nominal transfers of personal 
 estate where the entire use and control are, by a declara- 
 tion 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 per- 
 son. For that purpose the statute declares the title to be 
 in the debtor, and no transfer which is merely nominal can 
 stand in the way. It has no reference to intention, 
 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. 1 
 
 Eesulting Trusts. — The statute, however, has no 
 application to cases of real and actual alienation upon a 
 valuable consideration and for active and real purposes, 
 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. 2 The 
 distinction is between mere passive trusts for the grantor's 
 benefit, and those trusts which result from alienation for 
 real active purposes in the course of business. Reserva- 
 tions for the benefit of the grantor, in and of themselves, 
 
 1 Curtis v. Leavitt, 15 N. T. 9 ; s. c. 17 Barb. 309 ; Sturdivant v. 
 Davis, 9 Ired. 365. 
 
 5 Shoemaker v. Hastings, 61 How. Pr. 79. 
 
212 THE BONA FIDES OF THE TRANSFER. 
 
 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 upon. The law upon this subject is 
 entirely adapted to the dealings of mankind. In the busi- 
 ness of every trader exigencies will arise requiring a pledge, 
 mortgage, 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 con- 
 veyance or assignment is to secure the payment of a loan 
 of money, or of an existing debt, and the express reserva- 
 tion or resulting of the residuary beneficial 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 inter- 
 est 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, can not of itself avoid a conveyance other- 
 wise good. Expressio eorvm quae tacite insunt nihil opera- 
 tor. It cannot be unlawful to stipulate for that which the 
 law provides. The expression of a trust, therefore, to 
 restore the thing mortgaged 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 
 
THE BONA FIDES OF THE TRANSFER. 213 
 
 appears that the trust will operate to the prejudice and 
 injury of creditors. 1 As the grantor may expressly pro- 
 vide for the trust which would result by operation of law, 
 it follows that he may in good faith direct that it shall be 
 given to another. 2 
 
 What Benefits may be Reserved. — There are open 
 trusts which may be reserved upon the face of the deed, 3 
 as, for instance, a life interest, 4 or a purchase in the joint 
 names of the grantor and grantee. 5 In the case of mort- 
 gages it is customary to stipulate that the mortgagor shall 
 have the control and benefit of the estate until forfeiture. 6 
 A stipulation may also be inserted that the mortgagor may 
 retain possession until the mortgagee requires a sale. 7 A 
 
 1 Curtis v. Leavitt, 15 N. Y. 9 ; s. c. 17 Barb. 309 ; Eavisies v. Alston, 
 5 Ala. 297 ; Eaton v. Perry, 29 Mo. 96 ; Leavitt v. Blatchford, 17 N. T. 
 521 ; Dunham v. Whitehead, 21 N. Y. 131 ; Kneeland v. Cowles, 4 Chand. 
 46 ; McClelland v. Remsen, 36 Barb. 622 ; s. c. 14 Abb. Pr. 331 ; s. c. 23 
 How. Pr. 175 ; Phillips v. Zerbe Bun Co., 25 Penn. 56 ; Johnson v. Cun- 
 ningham, 1 Ala. 249 ; Pope v. Wilson, 7 Ala. 690 ; Malone v. Hamilton, 
 Minor, 286 ; Howell v. Bell, 29 Mo. 135 ; Brinley v. Spring, 7 Me. 241 ; 
 Bahn v. McElrath, 6 Watts, 151 ; Burgin v. Burgin, 1 Ired. 453 ; Austin 
 v. Johnson, 7 Humph. 191 ; Tunnell v. Jefferson, 5 Harring. 206 ; s. C. 2 
 Del. Ch. 135; 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 v. Hollister, 4 N. Y. 211 ; Van Buskirk v. Warren, 39 N. Y. 119 ; 
 S. 0. 34 Barb. 457 ; s. C. 13 Abb. Pr. 145 ; 4 Abb. Ap. 457 ; Stevens v. 
 Bell, 6 Mass. 339 ; Smyth v. Ripley, 33 Conn. 306; Vallance v. Miners' 
 Ins. Co., 42 Penn. 441 ; Lay v. Seaye, 47 Ala. 82 ; Galloway v. People's 
 Bank, 54 Geo. 441 ; Morgan v. Bogue, 7 Neb. 429 ; Camp v. Thompson, 
 25 Minn. 175 ; vide Wilson v. Cheshire, 1 McCord Ch. 233. 
 
 2 Green v. Tanner, 49 Mass. 411. a Low v. Carter, 21 N. H. 433. 
 4 Lott v. De Graffienreid, 10 Rich. Eq. 346 ; Adams v. Broughton, 13 
 
 Ala. 731. 
 
 6 Christ's Hospital v. Budgin, 2 Vern. 683; Kingdome v. Bridges, 2 
 Vern. 67. 
 
 6 Graham v. Lockhart, 8 Ala. 9 ; Wilson v. Russell, 13 Md. 494. 
 
 " Dubose v. Dubose, 7 Ala. 235 ; Brock v. Headen, 13 Ala. 370 ; Mar- 
 riott v. Givens, 8 Ala. 694 ; Cheatham v. Hawkins, 76 N. C. 335. 
 
214 THE BONA FIDES OF THE TRANSFER. 
 
 stipulation that the grantee shall employ the debtor's 
 apprentices is merely collateral, and does not vitiate the 
 transaction. 1 No man, however, is allowed to make a con- 
 veyance reserving 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 can not be the equit- 
 able owner of property and still have it exempt from his 
 debts. 2 If the grantor is insolvent, the reservation of even 
 a life interest in the property will make the whole transfer 
 void. 3 
 
 Secret Trusts. — No conveyance is deemed bona fide 
 within the proviso which is accompanied with any secret 
 trust. 4 It matters not how this secret trust is created or 
 expressed, or whether it is express or implied. 5 It may 
 either affect the whole transfer, or constitute only a part 
 of the consideration for it. 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 convey- 
 ance 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 possession of them, and is contented that he shall pay 
 him his debt when he is able, this is not bona fide within 
 the proviso. 6 The secret trust which is illustrated by this 
 
 ' Faunce v. Lesley, 6 Penn. 121. 
 
 8 Mackarson's Appeal, 42 Penn. 330 ; Coolidge v. Melvin, 42 N". H. 
 510; Brinton v. Hook, 3 Md. Ch. 477; Ford v. Caldwell, 3 Hill (S. C.) 
 248 ; Hunters v. Waite, 3 Gratt. 26 ; Watts v. Thomas, 2 P. Wms. 364. 
 
 3 Young v. Heermans, 66 N. Y. 374 ; Sandlin v. Robbins, 62 Ala. 477. 
 
 1 Twyne's Case, 3 Co. 80 ; s. c. Moore, 638. 
 
 5 Rice v. Cunningham, 116 Mass. 466 ; Coolidge v. Melvin, 42 N. H. 
 510. 
 
 6 Twyne's Case, 3 Co. 80 ; s. c. Moore, 638. 
 
THE BONA FIDES OF THE TRANSFER. 215 
 
 example is manifestly a trust which makes the transfer 
 merely colorable. In cases of this kind the question is, 
 whether 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, 
 or 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. If it is 
 real, it is valid ; if it is merely colorable, it is void. 1 
 
 The secret trust need not, however, affect the whole 
 transfer, or even attach itself in some way to the property. 
 If it merely constitutes a part of the consideration, that is 
 sufficient. If any secret, substantia] advantage is secured 
 to the debtor from the use of the property, or from its pro- 
 ceeds, this constitutes a secret trust. 2 If, for instance, 
 there is a secret trust to support the debtor, 3 or to allow 
 him to sell the property as agent for the grantee and have 
 all that he can make beyond the actual cost,* this is such 
 an interest as is utterly inconsistent with good faith in the 
 transfer. The purchaser appears to be the exclusive 
 owner, and the rights of the debtor rest in mere personal 
 confidence between the parties and depend upon the pleas- 
 ure of the creditor. It is this circumstance that consti- 
 tutes the fraud, because the debtor expects a profit or 
 
 - Eveleigh v. Purrsford, 2 Mood. & Bob. 539 ; Sydnor v. Gee, 4 Leigh, 
 535 ; Cobum v. Pickering, 3 N. H. 415 ; Beers v. Botsford, 13 Conn. 146 ; 
 Michael v. Gay, 1 F. & P. 409 ; Claytor v. Anthony, 6 Band. 285 ; New 
 England Marine Ins. Co. v. Chandler, 16 Mass. 275 ; Bea v. Alexander, 
 5 Ired. 644; Hinton v. Curtis, 1 Pitts. L. J. 198 ; Leadman v. Harris, 3 
 Dev. 144 ; Sturdivant v. Davis, 9 Ired. 365 ; Grant v. Lewis, 14 Wis. 487 ; 
 Luff v. Horner, 3 P. & P. 480 ; Dewey v. Bayntun, 6 East. 257 ; Power 
 v. Alston, 93 111. 587. , 
 
 2 Bice v. Cunningham, 116 Mass. 466 ; Cobum v. Pickering, 3 N. H. 
 415. 
 
 3 Bice v. Cunningham, 116 Mass. 466 ; Pranklin v. Claflin, 49 Md. 24. 
 
 4 Grant v. Lewis, 14 Wis. 487. 
 
216 THE BONA FIDES OF THE TRANSFER. 
 
 benefit to himself from such pleasure and favor of the 
 grantee while his creditors can not reach that interest in 
 any way. 1 It is however essential that the reservation 
 shall be a reservation of some substantial interest. A 
 mere parol agreement, for instance, that the debtor may re- 
 purchase the property whenever he is able, will not vitiate 
 the transfer if no substantial interest is thereby reserved. 2 
 The agreement furnishes evidence tending to show that 
 the property is of greater value than the sum paid, and 
 that there is a secret trust to that extent for the benefit of 
 the grantor, but evidence may be received to show that 
 the grantee paid the full value of the property present and 
 prospective, and thus to rebut the inference of a secret 
 trust to the prejudice of creditors, because the reservation 
 was of nothing that was of value to them. But if a sub- 
 stantial interest is thereby reserved it renders the transfer 
 void. 4 
 
 Right of Possession as a Consideration. — A full con- 
 sideration may be given in such a form as to defeat credi- 
 tors, and thus render a transfer void. 5 The law, for 
 instance, will not permit a debtor in failing circumstances 
 to sell his property, convey it by deed without any reser- 
 vation, and yet secretly reserve to himself the right to 
 possess and occupy it for a limited time for his own bene- 
 fit. Such a transfer lacks the element of good faith, for, 
 while it professes to be an absolute conveyance upon its 
 
 1 Hawkins v. Alston, 4 Ired. Eq, 137. 
 
 s Albee v. Webster, 16 N. H. 362; Newsotn v. Eoles, 1 Ired. 179; 
 Glenn v. Eandall, 2 Md. Ch. 220 ; Anderson v. Puller, 1 McMullan Ch. 
 27 ; Barr v. Hatch, 3 Ohio, 527 ; McCully v. Shackhamer, 4 Neb. 438. 
 
 Albee v. Webster, 16 N. H. 362. 
 
 4 Albee v. Webster, 16 N. H. 362 ; Towle v. Hoitt, 14 N. H. 61. 
 
 6 Bott v. Smith, 21 Beav. 511. 
 
THE BONA FIDES OF THE TRANSFER. 217 
 
 face, there is a concealed agreement between the parties to 
 it inconsistent with its terms, securing a 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. 1 
 
 Collusion. — If there is any collusion for the benefit 
 of the debtor the transfer is void. A note given as a ficti- 
 tious consideration or secretly as a part of the considera- 
 tion, so that the debtor may control it for his own use, 3 is 
 a fraud upon the creditors, and renders the transaction 
 covinous. 
 
 Purchaser'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 impulses of 
 natural affection, or of sympathy towards the unfortunate. 
 If the transfer is valid and in good faith, there is no prin- 
 ciple of the common law or construction of the statute 
 
 1 Lukins v. Aird, 6 Wall. 78 ; Macomber v. Peck, 39 Iowa, 351 ; Car- 
 ter v. Happel, 49 Ala. 539 ; Lang v. Stockwell, 55 ST. H. 561 ; Sims v. 
 Gaines, 64 Ala. 392; Edwards v. Stinson, 59 Geo. 443 ; Mitchell v. Stet- 
 son, 64 Geo. 442 ; Barber v. Tirrell, 54 Geo. 146 ; Scott v. Hartman, 26 
 N. J. Eq. 89 ; Sparks v. Mark, 31 Ark. 666 ; Guffin v. First Hat'l Bank, 
 74 111. 259 ; Moore v. Wood, 100 111. 451 ; Dean v. Skinner, 42 Iowa, 418 ; 
 Fellows v. Lewis, 65 Ala. 343 ; vide Oriental Bank v. Haskins, 44 Mass. 
 332 ; St. John v. Camp, 17 Conn. 222 ; Howe Machine Co. v. Claybourn, 
 6 Fed. Kep. 438. 
 
 2 Rea v. Alexander, 5 Ired. 644. 
 
 3 Piatt v. Brown, 33 Mass. 553 ; Pettibone v. Stevens, 15 Conn. 19 ; 
 Bentz v. Riley, 69 Penn. 71. 
 
218 THE BONA FIDES OF THE TRANSFER. 
 
 which prevents the grantee from aiding the debtor or his 
 family, 1 or disposing of his own as he pleases. 
 
 Transfer must be Unconditional. — The contract by 
 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 fraudulent and 
 void. 2 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 considera- 
 tion. 3 
 
 Support of 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. 4 The transaction is equally fraudulent if enough 
 
 1 Dallam v. Eenshaw, 26 Mo. 533 ; Pinkston v. McLemore, 31 Ala. 
 308 ; Compton v. Perry, 23 Tex. 414 ; Ocoee Bank v. Nelson, 1 Cold. 
 186 ; Bumpas v. Dotson, 7 Humph. 310 ; Stuck v. Mackey, 4 W. & S. 196 ; 
 Cureton v. Doby, 10 Eich. Eq. 411 ; Webb v. Eoff, 9 Ohio St. 430 ; 
 TouDg v. Dumas, 39 Ala. 60 ; Kilby v. Haggin, 3 J. J. Marsh. 208 ; 
 Young v. Stallings, 5 B. Mon. 307 ; Winch v. James, 68 Penn. 297 ; Car- 
 ter v. Happel, 49 Ala. 539 ; Thorpe v. Beavans, 73 jST. C. 241. 
 
 8 West v. Snodgrass, 17 Ala. 549 ; Bethel v. Stanhope, Cro. Eliz. 810 ; 
 Anon. Dyer, 295, a; Bex v. Nottingham, Lane, 42; Tarback v. Mar- 
 bury, 2 Tern. 510; Peacock v. Monk, 1 Ves. Sr. 127; Jenkyn v. 
 Vaughan, 3 Drew, 419 ; s. o. 25 L. J. Ch. 338 ; Eock v. Dade, May on 
 Fraud, 519 ; Fisher v. Henderson, 8 N. B. E. 175 ; Donovan v. Dunning, 
 69 Mo. 436 ; vide Sagitary v. Hide, 2 Tern. 44. 
 
 8 Shannon v. Commonwealth, 8 S. & E. 444 ; West v. Snodgrass, 17 
 Ala. 549. 
 
 4 Albee v. Webster, 16 N. H. 362 ; Church v. Chapin, 35 Vt. 223 ; 
 Gunn v. Butler, 35 Mass. 248 ; Geiger v. Welsh, 1 Eawle, 349 ; Jackson 
 v. Parker, 9 Cow. 73 ; Eobinson v. Stewart, 10 N. T. 189 ; Smith v. 
 
THE BONA FIDES OF THE TRANSFER. 219 
 
 is not left for the payment of the grantor's debts. 1 It is, 
 in effect, a transfer to fche use of the grantor, which is 
 always void. 2 The gist of the objection 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 con- 
 sideration as an inducement to the transfer. When it is 
 shown that the present consideration is inadequate to 
 satisfy his debts, whatever 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 con- 
 veyance as a nullity as between the grantee and the credit 
 ors, and holds the property liable for their claims. 3 Evi- 
 dence may, however, be given to show that the grantee 
 paid the full value for the property, and that the reserva- 
 tion of a right to future support is of no value to creditors, 
 
 Smith, 11 N". H. 459 ; Russell v. Hammond, 1 Atk. 14 ; Stokes v. Jones, 
 
 18 Ala. 734; s.O. 21 Ala. 731 ; Sturdivant v. Davis, 9 Ired, 365 ; Crane v. 
 Stickles, 15 Yt. 253 ; Bott v. Smith, 21 Beav. 511; Morrison v. Morrison, 
 49 N. H. 69 ; Rollins v. Mooers, 25 Me. 192 ; Webster v. Withey, 25 Me. 
 326 ; Johnston v. Harvy, 2 Penna. 82 ; Stanley v. Robbins, 36 Yt. 422 ; 
 Miner v. Warner, 2 Phila. 124 ; s. o. 2 Grant, 448 ; Hawkins v. Moffatt, 
 10 B. Mon. 81 ; Henderson 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 ; Graham v. Rooney, 42 
 Iowa, 567 ; Todd v. Monell, 26 N. Y. Supr. 362 ; Henry v. Hinman, 85 
 Minn. 199 ; Tupper v. Thompson, 26 Minn. 385 ; Steams v. Gage, 79 N. 
 Y. 102. 
 
 1 Crane v. Stickles, 15 Yt. 253 ; Jones v. Spear, 21 Yt. 426 ; Tyner v. 
 Somerville, 1 Smith, 149 ; Annis v. Bonar, 86 111. 128 ; Egery v. John- 
 son, 70 Me. 258 ; Graves v. Blondell, 70 Me. 190 ; Woodward v. Wyman, 
 53 Yt. 645. 
 
 s Cadogan v. Kennett, Cowp. 432 ; Anon. Dyer, 295, a ; Adams v. 
 Adams, 1 Dane Ab. 636. 
 
 3 Sidensparker v. Sidensparker, 52 Me. 481 ; Egery v. Johnson, 70 Me. 
 258 ; Graves v. Blondell, 70 Me. 190 ; Moore v. Wood, 100 111. 451. 
 
220 THE BONA FIDES OF THE TRANSFER. 
 
 for they can not complain if the grantee assumes burdens 
 which are not to their prejudice 1 An agreement under 
 the same circumstances may also be made to employ the 
 grantor. 2 
 
 Support by Solvent Person. — If the grantor is free 
 from debt, 3 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 Slater v. Dudley, 35 Mass. 373 ; Albee v. Webster, 16 K. H. 362 ; 
 Howe Machine Co. v. Claybourn, 6 Fed. Eep. 458. 
 
 2 Griffin v. Crans'ton, 10 Bosw. 1 ; S. c. 1 Bosw. 281. 
 
 3 Buchanan v. Clark, 28 Vt. 799 ; Mills v. Mills, 3 Head, 705 ; Mahony 
 v. Hunter, 30 Ind. 246 ; Usher v. Hazletine, 5 Me. 471 ; Tibbals v. 
 Jacobs, 31 Conn. 428 ; Hennon v. McClane, 88 Penn. 219. 
 
 4 Hapgoodv. Fisher, 34 Me. 407; Drum v. Painter, 27 Penn. 148; 
 Johnston v. Zane, 11 Gratt. 552 ; Eaton v. Perry, 29 Mo. 96 ; Barrow v. 
 Bailey, 5 Fla. 9 ; Wooten v. Clark, 23 Miss. 75 ; Parker v. Nichols, 24 
 Mass. Ill ; Johnson v. Johnson, 44 Mass. 63 ; Matthews v. Jordan, 88 111. 
 602. 
 
CHAPTER IX. 
 
 CONSIDERATION. 
 
 What is a Good Consideration. — An inquiry into the 
 consideration upon which a transfer is founded sometimes 
 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 considera- 
 tion 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. Good consideration, therefore, is construed to 
 mean a valuable consideration as between creditors and 
 others claiming under the debtor. 1 
 
 When a Transfer is Voluntary. — A voluntary con- 
 veyance is a transfer without any valuable consideration. 
 In determining whether a transfer is voluntary, the ade- 
 quacy of the consideration does not enter into the question. 
 The character of purchase or voluntary is determined by 
 
 1 Twyne's Case, 3 Co. 80 ; s. o. Moore, 638 ; Cunningham v. Dwyer, 
 23 Md. 219 ; Killough v. Steele, 1 Stew. & Port. 262 ; Taylor v. Jones, 2 
 Atk. 600 ; Partridge v. Gopp, 1 Eden, 163 ; S. C. Ambl. 596 ; Thomson 
 v. Dougherty, 12 S. & K. 448. 
 
222 CONSIDERATION. 
 
 the fact whether anything valuable passes between the 
 parties. 1 As a 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 agree- 
 ment which can not be enforced, for where there is no 
 remedy there is no right. 2 An illegal consideration is, in 
 contemplation of law, no consideration, and is not, therefore, 
 sufficient to support a transfer as against creditors. 3 A 
 parol agreement to make a gift does not vest any right in 
 the donee, either legal or equitable, for it can not be 
 enforced ; consequently, a transfer in pursuance of such an 
 agreement only takes effect, as against creditors, from the 
 time when the transfer is actually made. 4 But if a volun- 
 tary deed is executed at a time when the grantor has no 
 interest, and he subsequently acquires an interest, the 
 transfer takes effect from the date of the deed. 5 A trans- 
 fer which the law would compel a party to make is not 
 voluntary. 6 If there has been a part performance of a 
 contract that is within the statute of frauds, a conveyance 
 in pursuance of the contract is valid. 7 
 
 Statutory Defense may be Waived. — To the proposi- 
 tion that a conveyance in pursuance or in consideration of 
 
 1 Jackson v. Peek, 4 Wend. 300 ; Shontz v. Brown, 27 Penn. 123 ; 
 Washband v. Washband, 27 Conn. 424. 
 
 2 Spurgeon v. Collier, 1 Eden; 55 ; Planck v. Schermerhorn, 3 Barb. 
 Ch. 644; Penhall v. Elwin, 1 Sm. & Gif. 258; Goldsmith v. Russell, 5 
 De G. M. & G. 547. 
 
 3 Weeks v. Hill, 38 N. H. 199 ; Jose v. Hewitt, 50 Me. 248 ; Weeden 
 v. Bright, 3 W. Va. 548. 
 
 * Rucker v. Abell, 8 B. Mon. 566 ; Davis v. McKinney, 5 Ala. 719 ; 
 Hoye v. Penn, 1 Bland, 28 ; s. o. 2 H. & J. 477 ; Worthington v. Bullitt, 
 6 Md. 172 ; s. c. 3 Md. Ch. 99 ; Hubbard v. Allen, 59 Ala. 283. 
 
 5 Bonny v. Griffith, Hayes, 115. " Buie v. Kelly, 5 Ired. 169. 
 
 'Van Bibber v. Mathis, 52 Tex. 406; Patterson v. McKinney, 97 
 111. 41. 
 
CONSIDERATION. 223 
 
 an agreement which can not be enforced is voluntary, 
 there is one exception. Wherever there is a moral obli- 
 gation, which can not be enforced on account of the pro- 
 visions of a statute, there the party may waive the benefit 
 of the statute, and the transfer will be valid as against 
 creditors. Thus, a debt which is barred by the statute of 
 limitations, 1 or a discharge in bankruptcy, 2 is a good con- 
 sideration for a conveyance. The' [statute of frauds is a 
 defense which the debtor may waive, and if he does so, a 
 conveyance in consideration of a claim that is within the 
 statute will be valid. 3 If he receives the title to land which 
 is paid for by another, upon a promise to hold it for the 
 latter, he has the right to perform the promise and convey 
 it to the real owner. 4 If the title to property is im- 
 properly taken in his name, he may convey it to the real 
 owner, 5 or to a trustee for his benefit, 6 for the purpose of 
 
 1 Sayre v. Fredericks, 16 N". J. Eq. 205 ; Keen v. Kleckner, 42 Penn. 
 529 ; Updike v. Titus, 13 N. J. Eq. 151 ; Shearon v. Henderson, 38 Tex. 
 245 ; French v. Motley, 63 Me. 326 ; Hale v. Stewart, 14 N. T. Supr. 591 ; 
 Brookville Nat'l Bank v. Trimble, 76 Ind. 195 ; vide Crawford v. Carper, 
 4 W. Ya. 56. 
 
 2 Wilson v. Russell, 13 Md. 494. 
 
 3 Goff v. Rogers, 71 Ind. 459 ; Brown v. Rawlings, 72 Ind. 505 ; Cres- 
 well v. McCaig, 11 Neb. 222 ; First Nat'l Bank v. Bertschy, 52 Wis. 438 ; 
 Livermore v. Northrup, 44 N. T. 107; Stowell v. Hazlett, 57 N. Y. 635. 
 
 4 Hyde v. Chapman* 33 Wis. 391 ; Sackett v. Spencer, 65 Penn. 89 ; 
 City Nat'l Bank v. Hamilton, 34 N. J. Eq. 158 ; Gallman v. Perrie, 47 
 Miss. 131 ; First Nat'l Bank v. Dwelley, 72 Me. 223 ; Norton v. Mallory, 
 63 N. Y. 434 ; s. C. 8 N. Y. Supr. 499 ; s. C. 3 T. & C. 640 ; Ocean Nat'l 
 Bank v. Hodges, 16 N. Y. Supr. 161 ; Dygert v. Remerschnider, 32 N. Y. 
 629 ; S. c. 39 Barb. 417 ; Baldwin v. Ryan, 3 T. & C. 251 ; Van Kleeck 
 v. Miller, 19 N. B. R. 484 ; Holden v. Burnham, 5 T. & C. 195 ; vide 
 Smith v. Lane, 20 Mass. 205. 
 
 6 Seeders v. Allen, 98 111. 468 ; City Nat'l Bank v. Hamilton, 34 N. J. 
 Eq. 158 ; McConnell v. Martin, 52 Ind. 454 ; Harlen v. Watson, 63 Ind. 
 143 ; Garrity v. Haynes, 53 Barb. 596 ; Bancroft v. Curtis, 108 Mass. 47 ; 
 Parton v. Gates, 41 Ind. 456 ; Summers v. Hoover, 42 Ind. 153. 
 
 6 McLaurie v. Partlow, 53 111. 340 ; Garrity v. Haynes, 53 Barb. 596. 
 15 
 
224 CONSIDERATION. 
 
 correcting the mistake, whether a trust could be enforced 
 in his favor or not. 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 subse- 
 quently be made in pursuance of it. 1 The moral obliga- 
 tion resting upon the grantee v holding under a fraudulent 
 transfer is sufficient to support a reconveyance against his 
 creditors. 3 Property which has been conveyed to a party 
 to give him the necessary qualification to hold an office, 
 may be reconveyed. 3 A transfer in consideration of a 
 parol ante-nuptial contract is not within the foregoing 
 exception, and is merely voluntary. 4 A debt which has 
 been discharged by the voluntary release of the creditor is 
 not a good consideration as against other creditors. 5 The 
 law thus makes a distinction between a release by a 
 statute and a release by the voluntary act of the party. 
 An objection to receiving parol evidence can not arise 
 when the party bound by the agreement has acted on it in 
 good faith. 6 A Confederate note was a valuable consider- 
 ation if the parties and the property were at the time 
 within the Confederate lines. 5, 
 
 1 Bilsborrow v. Titus, 15 How. Pr. 95. 
 
 8 Clark v. Bucker, 7 B. Mon. 583 ; Davis v. Graves, 29 Barb. 480 ; 
 Stanton v. Shaw, 3 Baxter, 12 ; Caffal v. Hale, 49 Iowa, 53 ; Petty v. 
 Petty, 31 N. J. Eq. 8. Contra, Susong v. Williams, 1 Heisk. 625 ; Chapin 
 v. Pease, 10 Conn. 69 ; Allison v. Hagan, 12 Nev. 38 ; Maher v. Bovard, 
 14 Nev. 324. 
 
 8 Jackson v. Ham, 15 Johns. 261 ; Robert v. Gibson, 6 H. & J. 116. 
 
 4 Warden v. Jones, 2 De G. & J. 76 ; s. C 17 L. J. Ch. 190 ; Dundas 
 v. Dutens, 2 Cox, 235 ; s. 0. 1 Ves. Jr. 196 ; Spurgeon v. Collier, 1 Eden, 
 55 ; Murphy v. Abraham, 15 Ir. Eq. (N. S.) 371 ; 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 ; s. c. Walk. Ch. 471. 
 
 6 King v. Moore, 35 Mass. 376; Nightingale v. Harris, 6 R. I. 321. 
 
 6 Jones v. Ruffln, 3 Dev. 404. ' McDonald v. Kirby, 3 Heisk. 607. 
 
CONSIDERATION. 225 
 
 When Consideration may be Paid. — The considera- 
 tion must arise at the time of the transfer. 1 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. 2 A check given in good faith 
 on a banker having funds to pay it is prima facie pay- 
 ment if accepted as cash, although its payment is subse- 
 quently suspended on account of a controversy concerning 
 the property. 3 A transfer may be made for an annuity as 
 well as for money in hand. 4 An existing debt 5 or lia- 
 bility, either as indorser 6 or surety, 7 is sufficient. The 
 debt may also be unliquidated. 8 If a father takes a note 
 
 1 Starr v. Starr, 1 Ohio, 321. 
 
 2 Seward v. Jackson, 8 Cow. 406 ; s. c. 5 Cow. 67 ; Shontz v. Brown, 
 27 Penn. 123; Pattison v. Stewart, 6 W. & S. 72 ; Stafford v. Stafford, 27 
 Penn. 144 ; Starr v. Strong, 2 Sandf. Ch. 139 ; Alexander v. Todd, 1 
 Bond, 175. 3 Woodville v. Eeed, 26 Md. 179. 
 
 * Union Bank v. Toomer, 2 Hill Ch. 27. 
 
 6 Holbird v. Anderson, 5 T. B. 235 ; Loeschigk v. Hatfield, 5 Bobt. 
 26 ; s. C. 4 Abb. Pr. (N. S.) 210 ; 51 N. Y. 660 ; Gleason v. Day, 9 Wis. 
 498 ; Seymour v. Wilson, 19 N. T. 417 ; Adams v. Wheeler, 27 Mass. 
 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 ; Starin v. Kelly, 36 N. T. Sup. 366 ; 
 vide Harney v. Pack, 12 Miss. 229 ; Pope v. Pope, 40 Miss. 516. 
 
 6 Jewett v. Warren, 12 Mass. 300 ; Newman v. Bagley, 33 Mass. 570 ; 
 Buffum v. Green, 5K H 71 ; Bartels v. Harris, 4 Me. 146 ; Prescott v. 
 Hayes, 43 N. H. 593 ; Hendricks v. Bobinson, 2 Johns. Ch. 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, 25 N. J. 390 ; Lindle v. Neville, 13 S. & B. 227 ; 
 St. John v. Camp, 17 Conn. 222. 
 
 1 Fling v. Goodall, 40 N. H. 208 ; "Ferguson v. Purnace Co., 9 Wend. 
 345; Gorham v. Herrick, 2 Me. 37; Stedman v. Vickery, 42 Me. 132; 
 Hopkins v. Scott, 20 Ala. 179 ; Leggett v. Humphreys, 21 How. 66 ; 
 Miller v. Howry, 3 Penn. 374; Gibson v. Seymour, 4 Vt. 518; Penning- 
 ton v. Woodall, 17 Ala. 685 ; Tunnell v. Jefferson, 5 Harring. 206; s. c. 
 2 Del. Ch. 135 ; Coker v. Shropshire, *59 Ala. 542. 
 
 8 Dewey v. Littlejohn, 2 Ired. Eq. 495 ; vide Adams v. Adams, 1 Dane 
 Ab. 636. 
 
226 CONSIDERATION. 
 
 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. 1 A person who 
 is entering into a bond as surety, for the faithful perform- 
 ance 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 com- 
 pelled to pay for the principal, and the performance of 
 this may be insured by security taken either before or 
 after default. 2 If the liability of a surety on an adminis- 
 tration bond is extinguished by a settlement of the estate 
 and a discharge of the principal, a conveyance to indem- 
 nify him is without consideration. 3 Where there is no 
 other consideration than a pre-existing debt and the parties 
 afterwards treat it as still due, the transfer is without 
 consideration.* 
 
 Not merely Good between the Parties. — The con- 
 sideration must be valuable, and not such as is merely 
 good between the parties, 5 but a mortgage to secure the 
 debt of another is not voluntary. 6 A voluntary bond is 
 not a good consideration as against creditors, 7 but if it is 
 
 1 Arnold v. Arnold, 8 B. Mon. 202. 
 
 2 Dewey v. Liltlejohn, 2 Ired. Eq. 495. 
 
 3 Crawford v. Kirksey, 50 Ala. 591. 
 
 4 Starr v. Starr, 1 Ohio, 321 ; Oliver v. Moore, 23 Ohio St. 473. 
 
 6 Seymour v. Wilson, 19 N. T. 417 ; vide Garretson v. Kane, 27 N. J. 
 208. 
 
 6 Marden v. Babcock, 43 Mass. 99 ; ex parte Hearn, Buck Bank Cas. 
 165. 
 
 ' Hawkins v. Allston, 4 Ired. Eq. 137 ; McGill v. Harman, 2 Jones 
 Eq. 179; Stiles v. Attorney General, 2 Atk. 152; Gilham v. Locke, 9 
 Ves. 612 ; Stephens v. Harris, 6 Ired^. Eq. 57 ; Cray v. Kooke, Cas. Temp. 
 Talb. 153 ; Jones v. Powell, 1 Eq. Cas. Abr. 84; Lechmere v. Earl, 3 P. 
 Wms. 211. 
 
CONSIDERATION. 227 
 
 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. 1 In- 
 terest which cannot be collected at law is not a good con- 
 sideration, 2 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 between the parties, 
 they are good as to others. 3 
 
 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. 4 
 The note of a feme covert is not a valuable consideration, 
 although it may be paid subsequently. 5 A second judg- 
 ment may be taken for a prior judgment without releas- 
 ing or satisfying the latter, 6 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 absolute deed 
 intended as a mortgage may be changed by the parties 
 into a mortgage, and a judgment confessed for the debt. 7 
 A promise to pay specific debts whether by parol or in 
 
 1 Stiles v. Attorney General, 2 Atk. 152 ; Gilham v. Locke, 9 Ves. 
 612; Tanner v. Byne, 1 Sim. 160 ; ex parte Berry, 19 Ves. 218; Hopkirk 
 v. Randolph, 2 Brock. 132 ; Welles v. Cole, 6 Gratt. 645. Contra, Bank 
 v. Mitchell, Rice Ch. 389. 
 
 2 Whittacre v. Fuller, 5 Minn. 508 ; McKenty v. Gladwin, 10 Cal. 227; 
 Scales v. Scott, 13 Cal. 76. 8 Spencer v. Ayrault, 10 N. Y. 202. 
 
 4 Matthews v. Rice, 31 N. T. 457 ; Washband v. Washband, 27 Conn. 
 424 ; vide McCorkle v. Hammond, 2 Jones (N. C.) 444 ; Winchester v. 
 Reid, 8 Jones (N. C.) 377. 6 Howe v. Wildes, 34 Me. 566. 
 
 6 Cox v. McBee, 1 Spears, 195. ' Smith's Appeal, 2 Penn. 331. 
 
228 CONSIDERATION. 
 
 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. 2 If the value of the property exceeds the 
 amount of the incumbrance, an agreement to pay off the 
 incumbrance is not a good consideration. 3 A note may be 
 given to an agent for a debt due to the principal and a 
 judgment confessed thereon. 4 
 
 Release of Equity of Redemption. — A conveyance of 
 the equity of redemption by a mortgagor to a mortgagee 
 without the payment of any new consideration is not a 
 voluntary conveyance, and void as against creditors, when 
 the amount due on the note or other obligation, the pay- 
 ment 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 trans- 
 action a voluntary conveyance as against creditors, the 
 estate must be of greater value than the debt. 5 
 
 1 Shontz v. Brown, 27 Penn. 123 ; Jenkins v. Peace, 1 Jones (N. G.) 
 413 ; Stevens v. Hinckley, 43 Me. 440 ; Gunn v. Butler, 35 Mass. 248 ; 
 Pattison v. Stewart, 6 W. & S. 72 ; Meade v. Smith, 16 Conn. 346 ; 
 Anderson v. Smith, 5 Blackf. 395 ; Seaman v. Hasbrouck, 35 Barb. 151 ; 
 Keen v. Kleckner, 42 Penn. 529 ; Bell v. Greenwood, 21 Ark. 249 ; Pres- 
 ton v. Jones, 50 Penn. 54 ; Yan meter v. Vanmeter, 3 Gratt. 148 ; Fleis- 
 cher v. Dignon, 53 Iowa, 288; Sonstiby v. Keeley, 7 Ped. Bep. 447; 
 Ivancovich v. Stern, 14 Nev. 341. 
 
 2 U. S. v. Mertz, 2 Watts, 406; Carpenter v. Carpenter, 25 N. J. Eq. 
 194. s First Nat'l Bank v. Bertschy, 52 Wis. 438. 
 
 4 Harris v. Alcock, 10 G. & J. 226 ; Insurance Co. v. Wallis, 23 Md. 
 173 ; Bank v. Higginbottom, 9 Pet. 48. 
 
 6 Williams v. Bobbins, 81 Mass. 590 ; Credle v. Carawan, 64 N. C. 422. 
 
CONSIDERATION. 229 
 
 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. 1 As she can also maintain an action at 
 law for the deceit by which she was led into such a mar- 
 riage, the damages inflicted upon her constitute a valuable 
 consideration for a transfer of his property to her. 2 In- 
 demnity to a woman against the consequences of an illicit 
 intercourse is also a good consideration within the statute, 3 
 but a transfer which looks to future cohabitation is illegal 
 and void as against creditors.* If a transfer, however, is 
 made for a valuable consideration at the time, it can not 
 be vitiated by a subsequent cohabitation with the debtor 
 any more than by cohabitation with any other person, 
 unless such subsequent cohabitation entered into the con- 
 sideration of the transfer. 5 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 
 facilitating future illicit intercourse, is not founded upon a 
 good consideration within the meaning of the statute. 6 A 
 claim of damages for seduction is a valuable considera- 
 tion. 7 
 
 Firm Property to Pay Individual Debts.— A firm 
 is in law distinct from the members who compost it, and 
 
 ' Forbush v. Williams, 33 Mass. 42. 
 
 8 Fellows v. Emperor, 13 Barb. 92 ; Hutchinson v. Horn. 1 Smith, 242; 
 S. C. 1 Ind. 363 ; Lady Cox's Case, 3 P. Wms. 389 ; vide Gilham v. Locke, 
 9 Ves. 612. 8 Wait v. Day, 4 Denio, 439 ; Gray v. Mathias, 5 Ves. 286. 
 
 4 Wait v. Day, 4 Denio, 439 ; Sherman v. Barrett, 1 McMullen, 47 ; 
 Hargroves v. Meray, 2 Hill Ch. 222 ; Lady Cox's Case, 3 P. Wms. 389 ; 
 Gray v. Mathias, 5 Ves. 286 ; Potter v. Gracie, 58 Ala. 303. 
 
 5 Fellows v. Emperor, 13 Barb. 92. 
 
 fi Wait v. Day, 4 Denio, 439. ' Carlisle v. Gaskill, 4 Ind. 219. 
 
230 CONSIDERATION. 
 
 a transfer of the firm property to pay the separate debts 
 of one of the partners is a voluntary conveyance. 1 A pre- 
 vious division of the property when the firm is insolvent 
 will not make any difference, for there is then nothing to 
 divide. 2 , 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 con- 
 sideration. 3 If property is purchased in the firm name, 
 with the assets of a prior firm, a transfer of a part or the 
 whole of it to secure a creditor of such prior firm is valid. 4 
 Where the firm is insolvent, a transfer of the firm property 
 by one partner to the other on a stipulation by the latter 
 to pay the firm debts is without consideration as against 
 the firm creditors. 5 , But a separate creditor in such case 
 can not be injured by a transfer of one partner's interest 
 in the partnership property to his copartner in considera- 
 tion of the grantee's assuming the liabilities of the firm, 6 
 and therefore can not object to it. As each partner is 
 personally liable for the payment of the partnership lia- 
 bilities, a transfer of his separate property in consideration 
 of a debt due by the firm is founded upon a good con- 
 
 1 Burtus v. Tisdall, 4 Barb. 571 ; Anderson v. Maltby, 2 Ves. Jr. 244 ; 
 Elliott v. Stevens, 38 N. H. 311 ; Person v. Monroe, 21 N". H. 462 ; 
 Geo^tner v. Canajoharie, 2 Barb. 625 ; Q3art v. Farmers' Bank, 27 Barb. 
 337 ; Walsh v. Kelley, 42 Barb. 98 ; s. c. 27 How. Pr. 359 ; Wilsou v. 
 Robertson, 21 N. T.. 587; s. c. 19 How_.J?r. 350; Hartley v. White, 94_ 
 Penn. 31. Contra, Sigler v. Knox. County Bank, 8 Ohio St. 511 ; Na- 
 tional Bank v. Sprague, 20 N. J. Eq. 13 ; Schaeffer v. Fithian, 17 Ind. 
 463 ; McDonald v. Beach, 2 Blackf. 55 ; Haben v. Harshaw, 49 Wis. 379 ; 
 Schmidlapp v. Currie, 55 Miss. 597. 
 
 2 Burtus. v. Tisdall, 4 Barb. 571. 
 
 3 Siegel v. Chidsey, 28 Penn. 279 ; Gwin v. Selby, 5 Ohio St. 96 ; Haben 
 v. Harshaw, 49 Wis. 379; Schaeffer v. Fithian, 17 Ind. 463; Wait v. 
 Bull's Head Bank, 19 N. B. K. 500. 4 Day v. Wetherby, 29 Wis. 363. 
 
 6 Ex parte Mayou, 4 De G. J. & S. 664. 
 
 6 Griffin v. Cranston, 10 Bosw. 1 ; s. o. 1 Bosw. 281. 
 
CONSIDERATION-. 231 
 
 sideration. 1 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. 2 
 
 Future Advances. — A transfer may be made in good 
 faith to secure indorsements 3 or future advances. 4 The 
 mere fact that such transfer may afford an opportunity 
 for a fraudulent collusion is not a valid objection, 5 for its 
 validity depends upon the attending circumstances. A 
 mortgage to secure future advances should indicate the 
 extent of the lien with certainty, 6 but no certain sum need 
 
 1 Stewart v. Slater, 6 Duer, 83. ! Head v. Horn, 18 Cal. 211. 
 
 8 Gardner v. Webber, 34 Mass. 407 ; Calkins v. Lockwood, 16 Conn. 
 276 ; IT. S. v. Hooe, 3 Cranch, 73 ; Goddard v. Sawyer, 91 Mass. 78 ; 
 Worseley v. DeMattos, 1 Burr, 467. 
 
 4 Doyle v. Smith, 1 Cold. 15; Cole v. Albers, 1 Gill, 412; Hendricks 
 v. Robinson, 2 Johns. 283 ; s. o. 17 Johns. 438 ; Craig v. Tappin, 2 Sandf. 
 Ch. 78 ; Townsend v. Empire Co., 6 Duer, 208 ; Lansing v. Woodworth, 
 1 Sandf. Ch. 43 ; Bank of IJtica v. Finch, 3 Barb. Ch. 293 ; Carpenter v. 
 Blote, 1 E. D. Smith, 491 ; U. S. v. Hooe, 3 Cranch, 73 ; Shirras v. Craig, 
 7 Cranch, 34 ; Lawrence v. Tucker, 23 How. 14 ; Foster v. Reynolds, 38 
 Mo. 553 ; Allen v. Montgomery R. R. Co., 11 Ala. 437 ; Coles v. Sellers, 
 1 Phila. 533 ; Crane v. Deming, 7 Conn. 387 ; Hubbard v. Savage, 8 Conn. 
 215 ; Commercial Bank v. Cunningham, 41 Mass. 270 ; Wescott v. Gunn, 
 4 Duer, 107 ; McDaniels v. Colvin, 16 Vt. 300 ; Collins v. Carlisle, 13 111. 
 254 ; Seaman v. Flemming, 7 Rich. Eq. 283 ; Bell v. Flemming, 12 N. J. 
 Eq. 13 ; Griffin v. N. J. Oil Co., 11 N. J. Eq. 49 ; Barnard v. Moore. 90 
 Mass. 273 ; Speer v. Skinner, 35 111. 282 ; Adams v. Wheeler, 27 Mass. 
 199 ; Badlain v. Tucker, 18 Mass. 389 ; Wilder v. Winne, 6 Cow. 284 ; 
 Smyth v. Ripley, 33 Conn. 306 ; McGavock v. Deery, 1 Cold. 265; U. S. v. 
 Lennox, 2 Paine, 180 ; Wilson v. Russell, 13 Md. 494 ; Irwin v. Wilson, 
 3 Jones Eq. 210 ; 7 DeWolf v. Harris, 4 Mason, 515 ; S. c. 4 Pet. 147 ; 
 Blood v. Palmer, 11 Me. 414 ; Miller v. Lockwood, 32 N.T. 293 ; Atkin- 
 son v. Maling, 2 T. R. 462 ; Googins v. Gilmore, 47 Me. 9 ; Holbrook v. 
 Baker, 5 Me. 309 ; Griffin v. Stoddard, 12 Ala. 783 ; vide Bank v. Wil- 
 lard, 10 N. H. 210. 
 
 « Wilson v. Russell, 13 Md. 494 ; IT. S. t. Hooe, 3 Cranch, 73. 
 
 6 Truscott v. King, 6 N. Y. 147 ; Younge v. Wilson, 24 Barb. 510 ; 
 Craig v. Tappin, 2 Sandf. Ch. 78 ; Divver v. McLaughlin, 2 Wend. 596. 
 
232 CONSIDERATION. 
 
 be named. 1 It may be taken for an absolute sum. 2 A 
 judgment may also be taken to secure future advances. 3 
 
 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. 4 A claim for board when a child resides with 
 his parents after his majority, rests upon the same prin- 
 ciple. 5 As a parent is entitled to the earnings of his minor 
 ■child, 6 and a husband to the earnings of his wife, 7 a trans- 
 
 1 Robinson v. Williams, 22 N. Y. 380. 
 
 2 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. Eoos, 43 Miss. 749. Contra, Peacock v. Tompkins, Meigs, 317; Neuffer 
 v. Pardue, 3 Sneed, 191. 
 
 8 Brinkerhoff v. Marvin, 5 Johns. Ch. 320 ; Lansing v. Woodworth 1 
 Sandf. Ch. 43 ; Livingston v. Mclnlay, 16 Johns. 165 ; Walker v. Snedi- 
 ker, Hoff, 145 ; Truscott v. King, 6 N. Y. 147. Contra, Clapp v. Ely, 10 
 N. J. Eq. 178 ; s. c. 27 N. J. 555. 
 
 4 Updike v. Titus, 13 N. J. Eq. 151 ; Hack v. Stewart, 8 Penn. 213 ; 
 Sanders v. Wagonseller, 19 Penn. 248 ; Yan Wyck v. Seward, 18 Wend. 
 375 ; s. c. 6 Paige, 62 ; 1 Edw. 327 ; Zerbe v. Miller, 16 Penn. 488 ; Hart 
 v. Plinn, 36 Iowa, 366 ; Griffin v. First Nat'l Bank, 74 111. 259 ; Bartlett 
 v. Mercer, 8 Ben. 439 ; Miller v. Sauerbier, 30 N. J. Eq. 71 ; King v. 
 Malone, 31 Gratt. 158 ; Stearns v. Gage, 79 N. Y. 102. 
 
 6 Coley v. Coley, 14 N. J. Eq. 350. 
 
 6 Swartz v. Hazlett, 8 Cal. 118 ; Brown v. McDonald, 1 Hill Ch. 297 ; 
 Dick v. Grissom, 1 Ereem. Ch. (Miss.) 428 ; Danley v. Rector, 10 Ark. 211. 
 
 1 Skillman v. Skillman, 13 N. J. Eq. 403 ; Belford v. Crane, 16 N. J. 
 Eq. 265 ; Cramer v. Reford, 17 N. J. Eq. 367 ; Beach v. Baldwin, 14 Mo. 
 
CONSIDERATION. 233 
 
 fer in consideration of such earnings by a person to his 
 wife or child is voluntary: If the child works for another, 
 the proceeds belong to the parent, and are not a valuable 
 consideration for a transfer from a parent to the child. 1 
 A contract 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. 2 
 
 597 ; Pinkston v. McLemore, 31 Ala. 308 ; Elliot v. Bentley, 17 Wis. 
 591 ; Carpenter v. Carpenter, 25 N. J. Eq. 194 ; Clinton Manuf. Co. v. 
 Hummell, 25 N. J. Eq. 45 ; Keating v. Keefer, 5 N. B. R. 133 ; S. c. 4 
 A. L. T. 162 ; Mitchell v. Seitz, 1 MacArthur, 480 ; McAnally v. O'Neal, 
 56 Ala. 299 ; Campbell v. Bowles, 30 Grratt. 652 ; Coleman v. Burr, 32 
 N. Y. Supr. 293. 
 
 'Winchester v. Eeid, 8 Jones (N. C.) 377; Worth v. York, 13 Ired. 
 206 ; II. S. v. Mertz, 2 Watts, 406. 
 
 a Geist v. Geist, 2 Penn. 441. 
 
CHAPTER X. 
 
 WHAT TRANSFERS ARE WITHIN THE STATUTE. 
 
 Comprehensiveness of the Statute. — The statute in- 
 validates all and every fraudulent feoffment, gift, grant, 
 alienation, bargain and conveyance of land, 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, 
 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. Ait praetor: Quae fraudationis causa gesta erunt cum 
 eo qui fraudem non ignoraverit de his curatori bonorum 
 vel ei cui de ea re actionem dare opportebit infra annum, 
 quo experiundi potestas fuerit, actionem dabo; idque etiam 
 adversus ipswm qui fraudem fecit, servabo. Necessario 
 praetor hoc edictwm proposuit ; quo edicto consulit creditori- 
 bus revocando ea quaecunque in fraudem eorum alienata 
 sunt. Ait ergo praetor, qwie fraudationis causa gesta erunt. 
 Haec verba generalm sunt et continent m se omnem omnino 
 in fraudem factam, vel alienationem vel quemcunque con- 
 tractum. Quodcunque igitur fraudis causa factum est, 
 videtur his verbis revocari, qualecunque fuerit, nam late ista 
 verba patent. Sive ergo rem alienavit sive acceptilatione vel 
 pacto aliquem liberavit, idem erit probandum. Et si pig- 
 nora liberet vel quern alium in fraudem creditorum praeponat 
 
WHAT TRANSFERS ARE WITHIN THE STATUTE. 235 
 
 vel ei prcebuit exceptkm&m sive se obligavit fraudandorum 
 creditorwm causa sive nwmeravit pecwnmm vel quodcv/nque 
 aliud fecit m fraudem creditorum, palam est edictum locum 
 habere. Gesta fraudationis causa accipere debemus non 
 solum ea quce contrahens gesserit dliquis, verum etiam si 
 forte data opera ad judicium non adfuit vel litem mori 
 patiatur vel a debitore non petit ut tempore liberatur aut 
 usum fructum vel servitutem amittit et qui aliquid facit ut 
 desmat habere quod habet, ad hoc edictum pertmet. In 
 fraudem facere videri etiam eum qui non facit quod debet 
 facere intelligendum est, id est si non utatur servitutibus ; 
 sed etsi rem suam pro derelicto habuerit ut quis earn suam 
 faciat. 1 
 
 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 to a debtor. 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, 2 or leave them in his 
 possession, 3 or allow him the profits arising from sales 
 made by him, 4 even though he is to sell in his own name, 5 
 or deliver articles to him upon condition that the title 
 shall not vest in him until he shall have paid all the 
 purchase-money, 6 or advance money to a mechanic under 
 
 : Dig. Lib. 42, tit. 9 ; 1 Domat. B. 2, tit. 10. 
 
 2 Howard v. Sheldon, 11 Paige, 558 ; Blood v. Palmer, 11 Me. 414 
 Kobinson v. Chapline, 9 Iowa, 91 ; McClune v. Cain, 3 Abb. Ap. 76 
 Dreyer v. Durand, 80 111. 561. 
 
 » Hill v.Hill, 1 Dev. & Bat. 336; Anderson v. Biddle, 10 Mo. 23 
 Norris v. Bradford, 4 Ala. 203. 
 
 1 Patten v. Clark, 22 Mass. 4 ; McCullough v. Porter, 4 W. & S. 177 
 
 s Blood v. Palmer, 11 Me. 414 ; Merrill v. Kinker, 1 Bald. 528. 
 
 6 Esty v. Aldrich, 46 N. H. 127; Forbes v. Marsh, 15 Conn. 384 
 McFarland v. Farmer, 42 N. H. 386 ; Strong v. Taylor, 2 Hill, 326 ; Hill 
 v. Freeman, 57 Mass. 257 ; Bailey v. Harris, 8 Iowa, 331 ; Reeves v 
 
236 WHAT TRANSFERS ARE WITHIN THE STATUTE. 
 
 a stipulation for an interest in the article to be manu- 
 factured by him, 1 or purchase articles to be subsequently 
 manufactured, 2 or employ a mechanic with wages varying 
 according to the profits. 3 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. 4 If there is in fact a sale, 5 or a gift, 8 
 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 inconsistent with the ownership of 
 the grantor, or in a manner that would necessarily destroy 
 the grantor's lien or right of property. 7 When an agent 
 exceeds his authority, and purchases goods in the name of 
 
 Harris, 1 Bailey, 563 ; Baylor v. Smithers' Heirs, 1 Litt. 105 ; Bickerstaff 
 v. Doub, 19 Cal. 109 ; Chaffee v. Sherman, 26 Vt. 237 ; Paris v. Vail, 18 
 Vt. 277 ; Ayer v. Bartlett, 23 Mass. 71 ; Rogers' Locomotive Works v. 
 Lewis, 4 Dillon, 158; Blackwell v. Walker, 5 Fed. Rep. 419. Contra, 
 Rose v. Story, 1 Penn. 190 ; Haak v. Linderman, 64 Penn. 499 ; Becker 
 v. Smith, 59 Penn. 469 ; Waldron v. Haupt, 52 Penn. 408; Lehigh Co. v. 
 Field, 8 W. & S. 232; Ketchum v. Watson, 24111. 592; Stiles v. Whit- 
 aker, 1 Phila. 271 ; Heppe v. Speakman, 3 Brews. 548 ; s. c. 7 Phila. 117 ; 
 Henkels v. Brown, 4 Phila. 299. 
 
 - ' Beaumont v. Crane, 14 Mass. 400 ; Frost v. Willard, 9 Barb. 440 ; 
 Glover v. Allen, 23 Mass. 200 ; Calkins v. Lockwood, 16 Conn. 276 ; 
 Macomber v. Parker, 30 Mass. 175 ; s. c. 31 Mass. 497 ; Becker v. Smith, 
 59 Penn. 469 ; King v. Humphreys, 10 Penn. 217. 
 
 2 Veazie v. Holmes, 40 Me. 69; Bartlett v. Blake, 37 Me. 124; vide 
 Jenkins v. Eichelberger, 4 Watts, 121. 
 
 8 Faulkner v. Waters, 28 Mass. 473. 
 
 4 Haynes v. Ledyard, 33 Mich. 319. 
 
 6 Merrill v. Rinker, 1 Bald. 528; Strong v. Taylor, 2 Hill, 326; 
 Wheeler v. Konst, 46 Wis. 398. 
 
 • e Morris v. Bradford, 4 Ala. 203 ; Fitzhugh v. Anderson, 2 H. & M. 
 289 ; Ford v. Aikin, 4 Rich. 121 ; McDermott v. Barnum, 16 Mo. 114 ; 
 s. O. 19 Mo. 204; vide Hollowell v. Skinner, 4 Ired. 165. 
 
 1 Ludden v. Hazen, 31 Barb. 650 ; Dick v. Cooper, 24 Penn. 217 ; 
 Heitzman v. Divil, 11 Penn. 264. 
 
"WHAT TRANSFERS ARE "WITHIN" THE STATUTE. 237 
 
 his principal as a means of covering them from his credi- 
 tors, they are liable to execution and sale for his debts. 1 
 A devise with a secret trust to hold for the debtor is not 
 within the statute. 2 
 
 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. 3 Apud La- 
 beonem scriptwm est eum qui suv/m, recipiat, nullam videri 
 fraudem facere, hoc est, evm qui quod sibi debetur receperat. 
 Eum enim quern presses mvitum solvere cogat, i/mpune non 
 solvere, iniquum esse. Totum enim hoc edietum ad con- 
 tractus pertmere, in quibus se prcetor non interponit, ut puta 
 pignora, venditionesquet 
 
 Only the Creditor's own Debtor. — The statute, more- 
 over, intends simply to guard a creditor from the fraudu- 
 lent attempt of his debtor to delay, hinder, or defraud 
 him of the recovery of his debt by disposing of the pro- 
 perty 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, de- 
 rive 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 delay, hinder, or defraud them. 
 Consequently a transfer by a feme sole on the eve of mar- 
 riage for the purpose of protecting the property against 
 
 1 White v. Cooper, 3 Perm. 130. 
 
 ! M'Kee v. Jones, 6 Penn. 425. 
 
 8 Simpson v. Dall, 3 Wall. 460 ; Fletcher v. Pillsbury, 35 Vt. 16. 
 
 4 Dig. lib. 42, tit. 9 ; see 1 Domat. B. 2, tit. 10. 
 
238 WHAT TRANSFERS ARE "WITHIN THE STATUTE. 
 
 the claims of the creditors of her intended husband is not 
 fraudulent as against them. 1 A term of years which 
 belongs to the debtor's wife as administratrix is not liable 
 for his debts, and a transfer of it is not within the statute 
 as against his creditors. 3 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 husband releases her personally at law, yet her 
 property is not discharged, for the failure to make a pro- 
 vision for her creditors renders the transfer fraudulent as 
 against them. 3 
 
 Kind of Property. — In respect to the kind of property 
 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. 4 If a transfer is fraud- 
 ulent, the grantee can not retain the property on the 
 ground that it is of no value. 5 
 
 1 Land v. Jeffries, 5 Rand. 211, 599 ; Andrews v. Jones, 10 Ala. 400 ; 
 Prior v. Kinney, 6 Munf. 510 ; Comm. v. Fletcher, 6 Bush. 171. 
 
 s Ridler v. Punter, Cro. Eliz. 291. 
 
 8 Chubb v. Stretch, L. R. 9 Eq. 555 ; Briscoe v. Kennedy, 1 Brock. 17, 
 note ; Miles v. Williams, 1 P. Wms. 249 ; Hamlin v. Bridge, 24 Me. 145 ; 
 Dickson v. Miller, 19 Miss. 594 ; vide Vanderheyden v. Mallory, 1 N. T. 
 452 ; s. c. 3 Barb. Ch. 9. * Bank v. Ballard, 12 Rich. 259. 
 
 6 Garrison v. Monagan, 33 Penn. 232 ; vide Hanly v. Logan, 1 Duvall. 
 242. 
 
WHAT TRANSFERS ARE WITHIN THE STATUTE. 239 
 
 Choses in Action. — The terms "goods and chattels" 
 are the generic denomination of things personal as distin- 
 guished from things real, or lands, tenements and heredi- 
 taments, and embrace things in action as well as in posses- 
 sion, 1 even though the choses in action were unknown at 
 the time of the passage of the statute. 2 But as stock, 3 
 choses in action? and money, 5 could not be taken on execu- 
 tion at common law, it has been doubted whether a trans- 
 fer of such property could be fraudulent. 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 attach- 
 ment or execution, a transfer of it becomes liable to inves- 
 tigation on the ground of fraud. 6 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 follows 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- 
 
 1 Pinkerton v. Manchester R. R. Co., 42 N. H. 424 ; Elliott's Appeal, 
 50 Penn. 75. 2 Elliott's Appeal, 50 Penn. 75. 
 
 8 Horn v. Horn, Ainbl. 79 ; Dundas v. Dutens, 1 Ves. Jr. 196 ; s. c. 2 
 Cox, 235 ; Eider v. Kidder, 10 Ves. 360 ; s. c. 12 Yes. 202 ; 13 Ves. 123. 
 
 4 Sims v. Thomas, 12 Ad. & E. 536 ; s. c. 4 P. & D. 233 ; 9 L. J. (N. 
 S.) Q. B. 399 ; Grogan v. Cooke, 2 Ball. & B. 233 ; Norcut v. Dodd, 1 
 Cr. & Ph. 100. 6 Duffln v. Furness, Sel. Cas. Ch. 77. 
 
 6 Pinkerton v. Manchester R. R. Co., 42 N. H. 424 ; Gaylord v. Couch, 
 5 Day, 223 ; Warden v. Jones, 2 De G. & J. 76 ; S. O. 27 L. J. Ch. 190 ; 
 Sims v. Thomas, 12 Ad. & E. 536 ; S. O. 4 P. & B. 233 ; 9 L. J. (N. S.) Q. 
 B. 299 ; Stokoe v. Cowan, 29 Beav. 637 ; Barrack v. McCulloch, 3 K. & 
 J. 110 ; S. C. 26 L. J. Ch. 105 ; Magawley's Trust, 5 De G. & S. 1 ; Free- 
 man v. Pope, L. R. 5 Ch. Ap. 538 ; s. c. L. R. 9 Eq. 206 ; Stokes v. Coffey, 8 
 Bush, 533 ; Elliott's Appeal, 50 Penn. 75 ; Scott v. Indianapolis Wagon 
 Works, 48 Ind. 75. 
 16 
 
240 WHAT TRANSFERS ARE WITHIN THE STATUTE. 
 
 fore, affords relief for the purpose of enforcing the pay- 
 ment of just debts. 1 
 
 Purchases in Name of Another. — At one time there 
 was some question whether creditors could reach property • 
 which was paid for by the debtor when the title was 
 fraudulently conveyed by the vendor to another. 2 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 prop- 
 erty. Such a contrivance is manifestly not within the 
 provisions of the statute. 3 It is, however, within the prin- 
 ciples 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 property conveyed to another to 
 
 1 Taylor v. Jones, 2 Atk. 600 ; Partridge v. Gopp, 1 Eden, 163 ; s. c. 
 Ambl. 596 ; Bayard v. Hoffman, 4 Johns. Qh. 450 ; Horn v. Horn, Ambl. 
 79 ; Smithier v. Lewis, 1 Vern. 398 ; HopMrk v. Eandolph, 2 Brock. 132 ; 
 Doughten v. Gray, 10 N". J. Eq. 323 ; Law v. Payson, 32 Me. 521 ; Bean 
 v. Smith, 2 Mason, 252 ; Catchings v. Manlove, 39 Miss. 655 ; Pringle v. 
 Hodgson, 3 Ves. 617 ; Planters' Bank v. Henderson, 4 Humph. 75 ; Ab- 
 bott v. Tenny, 18 N. H. 109 ; Wright v. Petrie, 1 S. & M. Ch. 282 ; 
 Green v. Tantum, 19 N. J. Eq. 105 ; s. c. 21 N. J. Eq. 364 ; Hadden v. 
 Spader, 20 Johns. 554 ; S. o. 5 Johns. Ch. 280 ; Tappan v. Evans, 11 N. 
 H. 311 ; Chase v. Searles, 45 N. H. 511 ; Weed v. Pierce, 9 Cow. 722 ; 
 West v. Sanders, 1 A. K. Marsh. 108 ; Greer v. Wright, 6 Gratt. 154 ; 
 Harlan v. Barnes, 5 Dana, 219 ; Sargent v. Salmon, 27 Me. 539 ; Drake 
 v. Bice, 130 Mass. 410. Contra, Dundas v. Dutens, 1 Ves. Jr. 196; s. C. 
 2 Cox, 235 ; Eider v. Kidder, 10 Ves. 360 ; s. o. 12 Ves. 202 ; 13 Ves. 
 123 ; Matthews v. Feaver, 1 Cox, 278 ; Cosby v. Ross, 3 J. J. Marsh. 290 ; 
 Winebrinner v. Weisiger, 3 Mon. 32 ; Crozier v. Young, 3 Mon. 157 ; 
 Grogan v. Cooke, 2 Ball. & B. 233 ; Buford v. Buford, 1 Bibb. 305 ; Sims 
 v. Thomas, 12 Ad. & E. 536 ; s. c. 4 P. & D. 233 ; 9 L. J. (N. S.) Q. B. 
 399 ; Norcut v. Dodd, 1 Cr. & Ph. 100 ; Bickley v. Norris, 2 Brev. 252 ; 
 Duffin v. Eurness, Sel. Cas. Ch. 77 ; Caillaud v. Estwick, 1 Anst. 381. 
 
 8 Fletcher v. Sidley, 2 Vern. 490 ; Glaister v. Hewer, 8 Ves. 196 ; 
 Proctor v. Warren, Sel. Cas. Ch. 78. 
 
 3 Gowing v. Rich, 1 Ired. 553 ; Gardiner Bank v. Wheaton, 8 Me. 373 ; 
 Gray v. Faris, 7 Yerg. 155. 
 
WHAT TRANSFERS ARE WITHIN THE STATUTE. 241 
 
 the prejudice of his creditors. 1 Justice is attained by 
 holding the grantee as a trustee for the benefit of the 
 creditors upon the principle that a person acquiring a title 
 by fraud shall be held as trustee for the injured person, 
 although he did not intend to acquire the property in that 
 character. 3 It may be considered as settled that property so 
 purchased in the name of another is liable to the demands 
 of creditors. 3 As the theory of the law is that the grantee 
 holds the property as a trustee, the trust may always be 
 enforced in equity. 4 Whether the property is also liable 
 
 1 Taylor v. Heriot, 4 Dessau. 227 ; Alston v. Rowles, 13 Fla. 117. 
 
 'Coleman v. Cocke, 6 Rand. 618; Brown v. McDonald, 1 Hill Ch. 
 297 ; Godding v. Brackett, 34 Me. 27 ; Gray v. Faris, 7 Yerg. 155 ; Bean 
 v. Smith, 2 Mason, 252. 
 
 s Peacocks. Monk, 1 Ves. Sr. 127 ; Christy v. Courtenay, 13 Beav. 96 ; 
 Farrow v. Teackle, 4 H. & J. 271 ; Wright v. Douglass, 3 Barb. 554 ; 
 Taylor v. Heriot, 4 Dessau. 227; Proseus v. Mclntyre, 5 Barb. 424; Cole- 
 man v. Cocke, 6 Rand. 618 ; Christ's Hospital v. Budgin, 2 Vern. 683 ; 
 Doyle v. Sleeper, 1 Dana, 531 ; Bay v. Cook, 31 111. 336 ; Houghton v. 
 Tate, 3 T. & J. 486 ; Whittlesey v. McMahon, 10 Conn. 137 ; Tappan v. 
 Butler, 7 Bosw. 480 ; Wood v. Savage, 2 Doug. (Mich.) 316 ; s. c. Walk. 
 Ch. 471 ; Miller v. Wilson, 15 Ohio, 108 ; Carpenter v. Roe, 10 N. Y. 227 ; 
 Mead v. Gregg, 12 Barb. 653 ; Croft v. Arthur, 3 Dessau. 223 ; National 
 Bank v. Sprague, 20 N. J. Eq. 13 ; Dewey v. Long, 25 Vt. 564 ; Gough 
 v. Henderson, 2 Head, 628 ; Farringer v. Ramsay, 2 Md. 365 ; s. C. 4 Md. 
 Ch. 33 ; Stewart v. Cohn, 21 La. An. 349 ; North v. Bradway, 9 Minn. 
 183 ; Brown v. McDonald, 1 Hill Ch. 297 ; Cutter v. Griswold, Walk. 
 Ch. 437 ; 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 ; S. c. 26 L. J. Ch. 105 ; De Chyrton's Case, Dyer, 295 a ; Jencks 
 v. Alexander, 11 Paige, 619 ; Sumner v. Sawtelle, 8 Minn. 309 ; Huggins 
 v. Perine, 30 Ala. 396 ; Smith v. Parker, 41 Me. 452 ; Halbert v. Grant, 4 
 Mon. 580 ; Whittlesey v. McMahon, 10 Conn. 137 ; Whitney v. Stearns, 
 52 Mass. 319 ; Baldwin v. Johnston, 8 Ark. 260 ; Doolittle v. Bridgen an, 
 
 1 Iowa, 265 ; -Smith v. Duncan, 2 Pitts. L. J. 186 ; Spicer v. Ayres, 2 N. 
 Y. Supr. 626 ; Wall v. Fairley, 73 N. C. 464 ; Johnson v. May, 16 N. B. 
 R. 425 ; Lockhard v. Beckley, 10 W. Va. 87. Contra, Fletcher v. Sidley, 
 
 2 Vern. 490 ; Glaister v. Hewer, 8 Ves. 196 ; Procter v. Warren, Sel. 
 Cas. Ch. 78 ; Crozier v. Young, 3 Mon. 157. 
 
 4 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. 
 
242 WHAT TRANSFERS ARE WITHIN THE STATUTE. 
 
 to an execution at law is a point upon which the decisions 
 vary. 1 When the fraudulent grantee takes an assignment 
 of an outstanding mortgage, purchased with the debtor's 
 money, the legal title is in the debtor. 3 
 
 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 purpose of defraud- 
 ing his creditors and preventing them from obtaining 
 
 452 ; Brown v. McDonald, 1 Hill Ch. 297 ; Bertrand v. Elder, 23 Ark. 
 494 ; 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 Harring. 225 ; s. c. 2 Del. Ch. 20 ; Dockray v. Mason, 48 Me. 
 178 ; Bay v. Cook, 31 111. 336 ; Belford v. Crane, 16 IS? J. Eq. 265 ; 
 Demaree v. Driskell, 3 Blackf. 115 ; Rucker v. Abell, 8 B. Mon. 566 ; 
 Gordon v. Lowell, 21 Me. 251 ; McDowell v. Cochran, 11 111. 31 ; Walcott 
 v. Almy, 6 McLean, 23 ; Gentry v. Harper, 2 Jones Eq. 177 ; Kehr v. 
 Sickler, 48 Mo. 96 ; Smith v. Hinson, 4 Heisk. 250. Contra, Mill River 
 Association v. Claflin, 91 Mass. 101. 
 
 1 Guthrie v. Gardner, 19 Wend. 414 ; Bodine v. Edwards, 10 Paige, 
 504; Arnot v. Beadle, 1 Hill & D. 181 ; Tevis v. Doe, 3 Ind. 129 ; Pen- 
 nington v. Clifton, 11 Ind. 162; Webster v. Withey, 25 Me. 326 ; Kim- 
 mell v. McRight, 2 Penn. 38 ; Cutter v. Griswold, Walk. Ch. 437 ; Roe v. 
 Irwin, 32 Geo. 39 ; Coleman v. Cocke, 6 Rand. 618 ; Cecil Bank v. Sniv- 
 ely, 23 Md. 253 ; Godding v. Brackett, 34 Me. 27 ; Clark v. Chamberlain, 
 95 Mass. 257 ; Wait v. Day, 4 Denio, 439 ; Hunt v. Blodgett, 17 111. 583 ; 
 Herrington v. Herrington, 27 Mo. 560 ; Rankin v. Harper, 23 Mo. 579 ; 
 Snow v. Paine, 114 Mass. 520 ; Peterson v. Farnum, 121 Mass. 476. In 
 the following cases it has been held not liable : Howe v. Bishop, 44 Mass. 
 26 ; Garfield v. Hatmaker, 15 1ST. Y, 475 ; Brewster v. Power, 10 Paige, 
 562 ; Page v. Goodman, 8 Ired. Eq. 16 ; Worth v. York, 13 Ired. 206 ; 
 Davis v. McKinney, 5 Ala. 719 ; Davis v. Tibbetts, 39 Me. 279 ; Gray v. 
 Earis, 7 Yerg. 155 ; Dewey v. Long, 25 Vt. 564; Gowingv. 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, 19 Mass. 478 ; Goodwin v. Hubbard, 15 Mass. 210 ; 
 Buck v. Gilson, 37 Vt. 653 ; Stall v. Eulton, 30 N. J. 430 ; Smith v. Hin- 
 son, 4 Heisk. 250 ; Smith v. Ingles, 2 Or. 43. 
 
 8 Stephens v. Sinclair, 1 Hill, 143. 
 
WHAT TRANSFERS ARE WITHIN THE STATUTE. 243 
 
 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. 1 If a 
 debt, however, has been created between the parties, the 
 creditors can only have the debt appropriated to the satis- 
 faction 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. When the debtor with his 
 family lives on the property of his wife, he may keep it 
 habitable and in repair. Within reasonable limits this 
 may be regarded as a necessary and proper means of per- 
 forming his obligation to support his wife and family. 2 
 But whenever the expenditures are beyond what is abso- 
 lutely necessary and proper for the shelter and main- 
 tenance of the family, they may be reached by his credi- 
 tors What amounts to an excessive expenditure is diffi- 
 cult to determine and depends upon the peculiar circum- 
 stances of each case. 3 If he puts improvements upon her 
 real estate which are temporary in their -character and 
 primarily calculated to promote his use and enjoyment of 
 the premises as tenant for life, her estate can not be 
 charged with tbe value of these temporary improvements. 4 
 It has, however, been held that improvements on the real 
 estate of a minor can not be reached. 5 
 
 1 Isham v. Schaffer, 60 Barb. 317 ; Lynde v. McGregor, 95 Mass. 182 ; 
 Athey v. Knotts, 6 B. Mon. 24 ; Hoot v. Sorrell, 11 Ala. 386 ; Divine v. 
 Steele, 10 B. Mon. 323 ; Kirby v. Bruns, 45 Mo. 234; Caswell v. Hill, 47 
 N. H. 407 ; Eose v. Brown, 11 W. Ya. 122 ; Heck v. Fisher, 78 Ky. 643. 
 Contra, Campion v. Cotton, 17 Ves. 264 ; Ewing v. Cantrell, Meigs, 364 ; 
 Webster v. Hildreth, 33 Vt. 457. 
 
 2 Dick v. Hamilton, 1 Deady, 322; Robinson v. Huffman, 15 B. Mon. 
 80 ; Shackelford v. Collier, 6 Bush. 149. 
 
 8 Dick v. Hamilton, 1 Deady, 322. 4 Dick v. Hamilton, 1 Deady, 322. 
 6 Mathes v. Dobschuetz, 72 111. 438. 
 
244 WHAT TRANSFERS ARE WITHIN THE STATUTE. 
 
 Power of Appointment. — If a debtor has a general 
 power of appointment, and executes it voluntarily without 
 consideration for the benefit of a third person, the property 
 so given under the power is liable to the demands of his 
 creditors. 1 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 not according to the time 
 when its exercise takes effect, or the instrument by which 
 its exercise is to be manifested. 2 A general power is a 
 power to appoint to whomsoever the donee pleases. 3 If 
 there is only a power to appoint among certain persons, 
 who are definitely described, so that the debtor can not 
 make the appointment for himself, his creditors can not 
 claim the benefit of it. 4 If the power is general, it makes 
 no difference whether the appointment is by will or by 
 deed. 5 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. 6 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. 7 
 
 1 Mackason's Appeal, 42 Perm. 330 ; Smith v. Garey, 2 Dev. & Bat. 
 Eq. 42 ; Stillwell v. Mellersh, 20 L. J. Ch. 356 ; Townsend v. Windham, 
 2 Yes. Sr. 1 ; Lassels v. Comwallis, 2 Vern. 465 ; s. c. Prec. Ch. 232 ; 
 George v. Milbanke, 9 Ves. 189 ; Whittington v. Jennings, 6 Sim. 493 ; 
 Bainton v. Ward, 2 Atk. 172 ; Pack v. Bathurst, 3 Atk. 269 ; Thomp- 
 son vj Towne, 2 Vern. 319 ; s. c. Prec. Ch. 52 ; Tallmadge v. Sill, 21 
 Barb. 34. 
 
 2 Johnson v. Cushing, 15 N. H. 298 ; Tallmadge v. Sill, 21 Barb. 34. 
 8 Tallmadge v. Sill, 21 Barb. 34. 
 
 'Townsend v. Windham, 2 "Ves. Sr. 1. 
 
 5 Townsend v. Windham, 2 Ves. Sr. 1 ; Jenney v. Andrews, 6 Madd. 
 264 ; Williams v. Lomas, 16 Beav. 1. 
 
 6 Townsend v. Windham, 2 Ves. Sr. 1. 
 
 ■ Bainton v. Ward, 2 Atk. 172 ; Ashfleld v. Ashfleld, 2 Vern. 287 ; 
 Troughton v. Troughton, 3 Atk. 656 ; vide White v. Sansom, 3 Atk. 410. 
 
"WHAT TRANSFERS ARE WITHIN THE STATUTE. 245 
 
 Exempt Property. — If a debtor has money or property 
 which is liable to legal process, he may convert it into 
 property that is exempt. 1 If he owns property that is 
 exempt absolutely and unconditionally, no conveyance of it 
 can injure or defraud the creditors. Such an exemption 
 is a privilege conferred upon him, and does not deprive 
 him of any of the ordinary incidents of ownership, among 
 which is the power to sell or otherwise dispose of it. He 
 may, therefore, transfer it as he deems best for the pur- 
 pose of bettering his condition or providing for his home, 
 or furnishing his family, or prosecuting his business, or 
 for any other object, and it will not be liable to execution 
 in the hands of the purchaser. The creditors as to such 
 property are not deemed to be creditors so as to make a 
 transfer of it a matter of concern to them. 2 If the debtor 
 sells his homestead, he may invest the proceeds in another 
 
 1 O'Donnell v. Segar, 25 Mich. 367 ; North v. Shearn, 15 Tex. 174 ; 
 Cipperly v. Bhodes, 53 111. 346; Randall v.^Buffington, 10 Cal. 491 ; In re 
 Henkel, 2 Saw. 305 ; s. c. 2 N. B. R. 546 ; Huron v. George, 18 Kans. 
 253 ; Tucker v. Drake, 93 Mass. 145. Contra, Riddell v. Shirley, 5 Cal. 
 488 ; Pratt v. Burr, 5 Biss. 36 ; Brackett v. Watkins, 21 Wend. 68 ; Rose 
 v. Sharpless, 33 Gratt. 153. 
 
 1 Erb v. Cole, 31 Ark. 554 ; Danforth v. Beattie, 43 Vt. 138 ; Smith v. 
 Rumsey, 33 Mich. 183 ; Bond v. Seymour, 1 Chand. 40 ; s. c. 2 Pinney, 
 105; Legro v. Lord, 10 Me. 161; Vaughan v. Thompson, 17 111. 78; 
 Wood v. Chambers, 20 Tex. 247 ; Cox v. Shropshire, 25 Tex. 113 ; Smith 
 v. Allen, 39 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 v. Wade, 1 Bush. 110 ; Morton v. Ragan, 5 Bush. 334 ; Foster 
 v. McGregor, 11 Vt. 595 ; Patten v. Smith, 4 Conn. 450 ; s. c. 5 Conn. 
 196 ; Crummen v. Bennett, 68 N. C. 494 ; Keyes v. Rines, 37 Vt. 260 ; 
 Monroe v. May, 9 Kans. 466 ; Cipperly v. Rhodes, 53 111. 346 ; Goumans 
 v. Boomhower, 3 T. & C. 21; Whiting v. Barrett, 7 Lans. 106 ; Hibben 
 v. Soyer, 23 Wis. 319 ; Kulage v. Schueler, 7 Mo. Ap. 250 ; Mc Williams 
 v. Rogers, 56 Ala. 87 ; Jewett v. Fink, 47 Wis. 451 ; Smith v. Schmitz, 10 
 Neb. 600; Hixon v. George, 18 Kans. 253; Dart v. Woodhouse, 40 Mich. 
 399; Ketchum v. Allen, 46 Conn. 414; Morrison v. Abbott, 27 Minn. 
 116 ; Ferguson v. Kumler, 27 Minn. 156. 
 
246 WHAT TRANSFERS ARE WITHIN THE STATUTE. 
 
 homestead or other property, and take the title in the 
 name of his wife. 1 If he continues to occupy the home- 
 stead, a conveyance thereof through another to his wife 
 will not render it liable for his debts. 2 It is necessary 
 however that the conveyance even in such a case shall be 
 real and not merely colorable. If a debtor, for instance, 
 being entitled to a homestead, makes a conveyance of it 
 upon a secret trust that the grantee shall hold it for his 
 benefit after he has abandoned the use of it as a home- 
 stead, it will become liable to his creditors after such 
 abandonment. 3 If property is fraudulently purchased in 
 the name of the debtor's wife, his creditors may reach it 
 although he might have claimed it as exempt if it had 
 been conveyed to him, for he may still claim other pro- 
 perty as exempt. 4 If a homestead is exempt only condi- 
 tionally while the debtor occupies and owns it, then a 
 conveyance of it with the intent to delay, hinder, or 
 defraud his creditors is void, and the property is liable to 
 them. 5 Where the exemption is only allowed for goods 
 intended to be used in carrying on a trade or business, the 
 goods will be liable to his creditors if he changes his 
 mind after having purchased them and sells them with the 
 intent to delay, hinder, or defraud his creditors. 6 If the 
 statute merely exempts property to a certain amount at 
 the request of the debtor made at the time of the levy, a 
 denial of his title and the assertion of ownership in an- 
 other is a waiver of his right to the exemption. 7 
 
 1 Monroe v. May, 9 Kans. 466 ; Derby v. Weyrich, 8 Neb. 174. 
 
 2 Dreutzer v. Bell, 11 Wis. 114; Pike v. Miles, 23 Wis. 164. 
 
 8 Oox v. Shropshire, 25 Tex. 113 ; vide Delashmut v. Frau, 44 Iowa, 
 613. 
 
 4 Rogers v. McCauley, 22 Minn. 384. 
 
 5 Piper v. Johnston, 12 Minn. 60 ; Chambers v. Sallie, 29 Ark. 407. 
 
 6 Rayner v. Whicher, 88 Mass. 292 ; Stevenson v. White, 87 Mass. 148. 
 " Diffenderfer v. Fisher, 3 Grant, 303 ; Gilleland v. Rhoads, 34 Penn. 
 
 187. 
 
"WHAT TRANSFERS ARE WITHIN THE STATUTE. 247 
 
 Privileges. — Quod autem cum possit aliquid qucer&re, 
 non id agit ut adquwat, ad hoc edictum non perti/net. Per- 
 tinet enim edictum ad demmuentes patrimonium suu/m, non 
 ad eos qui id agunt, ne locupletentur. TJn'de si quis ideo 
 conditioni non paret ne committatur stipulatio, in ea con- 
 ditixme est ne faciat huic 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. The right of a settler upon the public lands to a 
 pre-emption is a personal privilege which he can exercise 
 at his pleasure, but which he is not bound to exercise 
 either for his own benefit or that of his creditors. He can 
 at any time abandon his possession and deprive himself of 
 his right of pre-emption. If he transfers that right to 
 another, who subsequently obtains a patent therefor, the 
 title of the patentee will be valid against creditors of the 
 settler, although the transfer was made with the intent to 
 delay, hinder or defraud them. 2 
 
 Debtor's Labor. — Creditors have no power to compel 
 a debtor to labor and earn the means to pay their 
 demands. He may resign himself 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. 3 Consequently he has 
 
 1 Dig. lib. 42 tit. 9, sec. 1 ; 1 Domat. B. 2 tit. 10. 
 
 "Moore v. Besse, 43 Cal. 511. 
 
 3 Leslie v. Joyner, 2 Head, 514; Griffin v. Cranston, 1 Bosw. 281; 
 
248 WHAT TRANSFERS ARE WITHIN THE STATUTE. 
 
 the right to enter into a contract to labor for another in 
 consideration of the support and maintenance of himself 
 and family. 1 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. 2 He is not permitted, 
 however, to make an assignment of his future earnings 
 with the intent to delay, hinder or defraud his creditors. 3 
 
 Not 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 inter- 
 fere. He is also countenanced by the law in the proper 
 discharge of his duty to provide a maintenance and sup- 
 port for himself and his family. But beyond the neces- 
 sary 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 
 
 s. C. 10 Bosw. 1 ; Holdship v. Patterson, 7 Watts, 547 ; Teeter v. 
 Williams, 3 B. Mon. 562; Abbey v. Deyo, 43 N". Y. 343 ; s. c. 44 Barb. 
 374 ; Bush v. Vought, 55 Penn. 437 ; Comm v. Fletcher, 6 Bush. 171 ; 
 Webster v. Hildreth, 33 Vt. 457. 
 
 1 Leslie v. Joyner, 2 Head, 514 ; Tripp v. Childs, 14 Barb. 85 ; Hold- 
 ship v. Patterson, 7 Watts, 547; Hoot v. Sorrell, 11 Ala. 386; Ashurst 
 v. Given, 5 W. & S. 323 ; Hodges v. Cobb, 8 Rich. 50 ; Wheedon v. 
 Champlin, 59 Barb. 61. 
 
 2 Teeter v. Williams, 3 B. Mon. 562. 
 8 Gragg v. Martin, 94 Mass. 498. 
 
"WHAT TRANSFERS ARE WITHIN THE STATUTE. 249 
 
 shall be protected for the benefit of himself or his family 
 against the demands of creditors. 1 Every agreement or 
 contrivance entered into with a view to deprive his credit- 
 ors of his future 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. 
 Although 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 performed. 2 
 
 Business in Wife's Name. — According to the princi- 
 ples of the common law, the husband is liable for a con- 
 tract to pay for property if it is made by his wife with 
 his consent and the property is his, for her contract is 
 null. 3 Hence if she carries on business in her own name, 
 the business and the profits are his. 4 In many States 
 laws have been passed removing the disability of a feme 
 covert at common law and enabling her to hold her prop- 
 erty free from liability for the debts of her husband, but 
 even there if she has no separate estate he can not as 
 against his creditors purchase property in her name and 
 on her credit, control and manage it as her agent and pay 
 for it by his own industry, thus investing the proceeds of 
 his skill and labor in her name. 5 But where she owns 
 
 1 Hamilton v. Zimmerman, 5 Sneed, 39. 
 
 5 Tripp v. Childs, 14 Barb. 85 ; Patterson v. Campbell, 9 Ala. 933 ; 
 Waddingham v. Loker, 44 Mo. 132; vide Isham v. Schaffer, 60 Barb. 
 317 ; Hodges v. Cobb, 8 Rich. 50, 
 
 8 Glann v. Tounglove, 27 Barb. 480 ; Robinson v. Wallace, 39 Penn. 
 129. 4 Quidort v. Pergeaux, 18 N. J. Eq. 472. 
 
 6 Bucher v. Ream, 68 Penn. 421 ; Hallowell v. Horter, 35 Penn. 375 ; 
 Barringer v. Stower, 49 Penn. 129 ; Robinson v. Wallace, 39 Penn. 129 ; 
 Hoffman v. Toner, 49 Penn. 231 ; Hall v. Sroufe, 52 111. 421 ; Keeney v. 
 Good, 21 Penn. 349 ; Rankin v. West, 25 Mich. 195 ; Penn. v. Whiteheads, 
 12 Gratt. 74 ; Shepherd v. Hill, 6 Lans. 387 ; Pawley v. Vogel, 42 Mo. 
 291 ; Glidden V.Taylor, 16 Ohio St. 509 ; Robinson v. Brenns, 90 111. 351. 
 Contra, Knapp v. Smith, 27 N. Y. 277 ; Baugh v. Monaghan, 2 Phila. 90. 
 
250 WHAT TRANSFERS ARE WITHIN THE STATUTE. 
 
 and manages the business, she may buy property on credit 
 and employ him as her agent. 1 Yet even then the labor 
 and skill of the husband must not be so mixed up with 
 hers that they can not be separated, for if they are, the 
 business will be considered as his and the proceeds will 
 not be protected for her as against his creditors. If prop- 
 erty is purchased upon the joint note of the debtor and his 
 wife, and conveyed to her, it will be liable to his credi- 
 tors if the note is paid by him. 3 If she has a separate 
 estate she may employ him and compensate him for his 
 services. 4 Such employment, however, must be in good 
 faith, and not merely colorable. 3 If the character of an 
 agent is assumed 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 compensa- 
 tion that is insufficient, is, in effect, an attempt to make a 
 voluntary conveyance of the products of his skill and 
 
 1 Manderbach v. Mock, 29 Perm. 43 ; Bankin v. West, 25 Mich. 195. 
 
 2 National Bank v. Sprague, 20 N. J. Eq. 13 ; Quidort v. Pergeaux, 
 18 N. J. Eq. 472; Pawley v. Vogel, 42 Mo. 291; Lyman v. Place, 26 
 N. J. Eq. 30 ; Alt v. Lafayette Bank, 9 Mo. Ap. 91. 
 
 3 McLaran v. Mead, 48 Mo. 115 ; Coffin v. Morrill, 22 N. H. 352 ; Dick 
 v. Hamilton, 1 Deady, 322. 
 
 4 Knapp v. Smith, 27 N. Y. 277 ; Voorhis v. Bonesteel, 16 Wall. 16 ; 
 s. c. 7 Blatch. 495 ; Gage v. Dauchy, 34 N. Y. 293 ; s.-c. 28 Barb. 622 ; 
 Feller v. Alden, 23 Wis. 301 ; Savage v. O'Neil, 44 N. Y. 298-; Buckley 
 v. Wells, 33 N. Y. 518 ; s. c. 42 Barb. 569 ; Welch v. Kline, 57 Penn. 
 428 ; Kluender v. Lynch, 4 Keyes, 361 ; s. c. 2 Abb. 538 ; Bellows v. 
 Rosenthal, 31 Ind. 116 ; Dean v. Bailey, 50 111. 481 ; Merchant v. Bunnel, 
 
 3 Abb. Ap. 280 ; Wheedon v. Chaplin, 59 Barb. 61 ; Vrooman v. Griffith, 
 
 4 Abb. Ap. 505 ; Driggs v. Russell, 3 N. B. R. 161 ; in re Eldred, 3 N. B. 
 R. 256 ; Bennett v. Stout, 98 111. 47 ; Tresch v. Wirtz, 34 N. J. Eq. 134 ; 
 Aldridge v. Muirhead, 101 TJ. S. 397 ; s. c. 14 N. B. R. 249. 
 
 6 Knapp v. Smith, 27 N. Y. 277 ; Gage v. Dauchy, 34 N. Y. 293 ; s. c. 
 28 Barb. 622 ; Savage v. O'Neil, 43 N. Y. 298 ; O'Leary v. Walter, 10 
 Abb. Pr. (N. S.) 439 ; Wortman v. Price, 47 111. 22 ; Hurlburt v. Jones, 
 25 Cal. 225 ; Laing v. Cunningham, 17 Iowa, 510 ; Woodworth v. Sweet, 
 51 N. Y. 8 ; S. O. 44 Barb. 268 ; Brownell v. Dixon, 37 111. 197. 
 
WHAT TRANSFERS ARE WITHIN THE STATUTE. 251 
 
 labor in her favor, and is void as against his creditors. 1 
 An employment of the husband does not, however, even 
 in such a case divest her title and render the proceeds of 
 the business liable to his creditors at law. 2 If she owns 
 land and manages it for her own use and benefit, she may 
 permit him in the enjoyment of the marital relation to 
 live upon it without rendering the products liable at law 
 to his creditors on account of the labor which he volun- 
 tarily bestows upon it. The ownership of the soil carries 
 with it the right to the products, and the labor of others 
 though mingling in the production does not create any 
 title to them. It matters not whether the owner owes 
 for the labor, or obtains it without a required equivalent, 
 or for an equivalent in maintenance which is consumed in 
 the use, the title to the product of the tillage is not 
 thereby changed. 3 A debtor may therefore bestow his 
 skill and labor upon his wife's estate so far as may be 
 reasonably necessary, without rendering the products 
 liable to his creditors. 4 He may do even more than that. 
 As his first obligation is to support his family, the pro- 
 ducts of the land will not be liable for his debts until that 
 obligation is discharged, 5 and even then they will not be 
 liable unless the portion not needed for the support of the 
 family is the result of his labor. 6 But if there is any such 
 
 1 Glidden v. Taylor, 16 Ohio St. 509 ; Feller v. Alden, 23 Wis. 301 ; 
 Shackelford v. Collier, 6 Bush, 149 ; Comm v. Fletcher, 6 Bush, 171 ; 
 Penn v. Whiteheads, 12 Gratt. 74 ; Pawley v. Vogel, 42 Mo. 291 ; Wilson 
 v. Loomis, 53 111. 352. Contra, Ashurst v. Given, 5 Wis. 323 ; Gillespie 
 v. Miller, 37 Penn. 247. 
 
 8 Buckley v. Wells, 33 TS. Y. 518 ; s. C. 42 Barb. 569 ; White v. 
 Hildreth, 25 Vt. 265 ; Webster v. Hildreth, 33 Vt. 457. 
 
 a Rush v. Vought, 55 Penn. 437 ; Dick v. Hamilton, 1 Deady, 322 ; 
 Gage v. Dauchy, 34 N; Y. 293 ; s. c. 28 Barb. 622. 
 
 * Coram v. Fletcher, 6 Bush, 171 ; Shackelford v. Collier, 6 Bush, 149. 
 
 6 Comm v. Fletcher, 6 Bush, 171. 
 
 6 Comm v. Fletcher, 6 Bush, 171. 
 
252 "WHAT TRANSFERS ARE WITHIN THE STATUTE. 
 
 surplus that is the result of his skill, there is no reason 
 why it may not be reached in equity and appropriated 
 towards the payment of his debts. 1 
 
 Wife's Earnings. — At common law, a husband is en- 
 titled to all the property which the wife acquires by skill 
 or labor during coverture. His right to her services and 
 her earnings is absolute. 2 Although he may vest her 
 with a separate estate in her future earnings, yet he can 
 not do so to the prejudice of existing creditors. 3 But if 
 he allows her to labor upon real estate owned by her, this 
 will not render the products liable to levy under an exe- 
 cution against him. 4 
 
 Child'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 cannot 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. 5 As the right of the 
 
 1 Shackelford v. Collier, 6 Bush, 149. 
 
 2 SMllman v. Skillman, 13 N. J. Eq. 403 ; Belford v. Crane, 16 N. J. 
 Eq. 265 ; Cramer v. Eeford, 17 N. J. Eq. 367; Shackleford v. Collier, 6 
 Bush, 149 ; Cropsey v. McKinney, 30 Barb. 47 ; Beach v. Baldwin, 14 Mo. 
 597 ; Pinkston v. McLemore, 31 Ala. 308 ; Duncan v. Eoselle, 15 Iowa, 
 501 ; Fitzpatrick v. Borbridge, 2 Brews. 559 ; Keith v. Woombell, 25 Mass. 
 211 ; Apple v. Ganong, 47 Miss. 189. Contra, Stall v. Fulton, 30 N. J. 
 430 ; Peterson v. Mulford, 36 N. J. 481 ; Tresch v. Wirtz, 34 N.J. Eq. 124. 
 
 8 Pinkston v. McLemore, 31 Ala. 308 ; McLemore v. Knuckolls, 37 
 Ala. 662 ; Hinman v. Parkis, 33 Conn. 188 ; Ewing v. Gray, 12 Ind. 64 ; 
 Johnson v. Glenn, 18 Wall. 476 ; Basham v. Chamberlain, 7 B. Mon. 443 ; 
 Glaze v. Blake, 56 Ala. 379. Contra, Peterson v. Mulford, 36 N. J. 481. 
 
 1 Johnson v. Vail, 14 N. J. Eq. 423. 
 
 5 Swartz v. Hazlitt, 8 Cal. 118 ; Brown v. McDonald, 1 Hill Ch. 297 ; 
 Dick v. Grissom, 1 Frem. Ch. (Miss.) 428 ; Danley v. Rector, 10 Ark. 211. 
 
WHAT TRANSFERS ARE WITHIN THE STATUTE. 253 
 
 parent, however, arises out of his obligation to support and 
 educate the child, such earnings are subject in the first 
 instance to a charge for that purpose, and no creditor has 
 a right to have them applied to the payment of his debt 
 to the exclusion of a proper education and maintenance. 1 
 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 demands. 3 The child is 
 not in law regarded as an ordinary debtor to his father, 
 nor is the father's right to the child's services regarded in 
 law as mere property either in possession or in action. 3 
 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 the property in the 
 child's earnings, or they can not be protected from the 
 parent's creditors. 4 But the emancipation of the child 
 from the parent's control may be as perfect when they 
 both live together under the same roof as if they were 
 separated. 5 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. 6 
 
 ' Lord v. Poor, 23 Me. 569 ; Leslie v. Joyner, 2 Head, 514. 
 
 2 Lord v. Poor, 23 Me. 569 ; Manchester v. Smith, 29 Mass. 113 ; Jeni- 
 son v. Graves, 2 Blackf. 440 ; TJ. S. v. Mertz, 2 Watts, 406 ; McClostey 
 v. Cyphert, 27 Penn. 220 ; Chase v. Elkin, 2 Vt. 290 ; Bray v. Wheeler, 
 29 Vt. 514 ; Bobo v. Bryson, 21 Ark. 387 ; Lyon v. Boiling, 14 Ala. 753 ; 
 Johnson v. Vail, 14 N. J. Eq. 423 ; Atwood v. Holcomb, 39 Conn. 270 ; 
 Partridge v. Arnold, 73 111. 600 ; Bouns v. Dunnigan, 71 Mo. 148. 
 
 3 Attwood v. Holcomb, 39 Conn. 270. 
 
 4 XL S. v. Mertz, 2 Watts, 406. 
 
 6 McCloskey v. Cyphert, 27 Penn. 220. 
 
 6 Dick v. Grissom, 1 Freem. Ch. (Miss.) 428. 
 
254 WHAT TRANSFERS ARE WITHIN THE STATUTE. 
 
 Character of Conveyance. — The withering influence 
 of the statute extends to all feoffments, gifts, grants, 
 alienations, bargains and conveyances, and all bonds, suits, 
 judgments and executions, and the principles of the com- 
 mon law will embrace every device not enumerated 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 contract is oral 
 or in writing ; whether executed by the parties with all 
 the solemnities of deeds by seal 1 and acknowledgment; 
 whether in the form of the judgment of a court, stamped 
 with judicial sanction, 2 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 instru- 
 ments have been resorted to for the purpose of covering up 
 fraud, but whenever the law is invoked all such instru- 
 ments 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 
 covenants or sanctions, which the ingenuity or skill or 
 genius of the rogue may devise. 3 The transfer must, how- 
 ever, be capable in point of law of executing or aiding in 
 the execution of an illegal purpose. 4 
 
 1 Garretson v. Kane, 27 N. J. 208. 
 
 s Wilhelmi v. Leonard, 13 Iowa, 330 ; Hackett v. Manlove, 14 Cal. 85 ; 
 McFarland v. Bain, 33 N. Y. Supr. 38. 
 
 > Booth v. Bunce, 33 N. Y. 139 ; s. c. 24 N". Y. 592 ; s. c. 35 Barb. 
 496; Curtis v. Leavitt, 15 N. Y. 9 ; s. o. 17 Barb. 309. 
 
 4 Heydock v. Stanhope, 1 Curt. 471. 
 
WHAT TRANSFERS ARE WITHIN THE STATUTE. 255 
 
 Bailment. — The statute has no application to a mere 
 bailment, a simple delivery of possession, for the plain 
 Teason that such enactment would be useless. The statute 
 is intended to remove obstructions out of the way of 
 creditors, but in cases of bailment the apparent and real 
 condition of the title is the same. No title is put in 
 another which is at all in the way of creditors. If they 
 can find the property in the hands of the bailee, they can 
 just as readily subject it to execution as though it re- 
 mained with the debtor. It does not concern them whether 
 the bailment is made from good or bad motives. 1 
 
 Mode Immaterial. — If a tenant commits a forfeiture 2 
 or surrenders his term 3 to the end that the reversioner 
 may enter for the purpose of defrauding his creditors, it is 
 a fraudulent conveyance. Where a judgment is given 
 against a party and he suffers himself to be outlawed in 
 felony with the intent to defraud his creditors and after- 
 wards purchases a pardon and has restitution, his goods 
 are still liable to execution on account of the fraud.* If a 
 contract is fraudulently rescinded, it will be deemed to be 
 still in force. 5 A fraudulent cancellation of an indebted- 
 ness will not discharge the debt. 6 A note for a debt taken 
 in the name of another is, as far as creditors are concerned, 
 an assignment of the debt. 7 A liability, however, which 
 
 1 Gowan v. Gowan, 30 Mo. 472. 
 1 Anon. Vent. 257. 
 3 Westlake v. Ridout, 5 Taunt. 519. 
 
 * Beverly's Case, 2 Dyer, 245, c. note ; Verney's Case, 2 Dyer, 245, b. ; 
 s. c. Coke on Lit. 290, b. 
 
 5 Maloney v. Bewley, 10 Heisk. 642. 
 
 6 Martin v. Eoot, 17 Mass. 222 ; Everett v. Read, 3 N. H. 55 ; McGay 
 v. Keilback, 14 Abb. Pr. 142 ; Wise v. Tripp, 13 Me. 9 ; Wright v. Petrie, 
 1 S. & M. Ch. 282. 
 
 1 Reppy v. Reppy, 46 Mo. 571 ; Freeman v. Burnham, 36 Conn. 469 ; 
 Camp v. Scott, 14 Vt. 387 ; Marsh v. Davis, 24 Vt. 363 ; Brown v. Mat- 
 thaus, 14 Minn. 205 ; Rogers v. Jones, 1 Neb. 417. 
 17 
 
256 WHAT TRANSFERS ARE "WITHIN THE STATUTE. 
 
 is still m fieri and a mere contingent obligation may be 
 cancelled, rescinded or discharged. 1 If the setting up and 
 recording of a deed long after its date is merely colorable, 
 the deed is void. 3 If a debtor makes a fraudulent convey- 
 ance and at the same time obtains a reconveyance which 
 he keeps from record in order to cover up the title, the 
 transaction may be set aside. 3 A lease which is intended 
 as a mere cover to enable the debtor to secure the crops 
 on the premises is void. 4 If a mortgagor who has made a 
 conveyance of the equity of redemption subsequently pays 
 the mortgage, the payments may be reached. 5 A remis- 
 sion 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. 6 
 A tenant in tail may disentail the property and resettle 
 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. 7 
 
 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. 8 If some- 
 thing has been paid which will be lost by a non-compliance 
 with the contract, another may pay the balance in good 
 
 1 McGay v. Keilback, 14 Abb. Pr. 142. 
 
 8 Lasher v. Stafford, 30 Mich. 369. = Lewis v. Lamphere, 79 111. 187. 
 
 * Ingraham v. Eankin, 47 Wis. 406. 
 
 8 Oliver v. Moore, 23 Ohio St. 473. 6 Andrews v. Jones, 10 Ala. 400. 
 
 ' Clements v. Eccles, 11 Ir. Eq. 229. 
 
 8 Raffensberger v. Oollison, 28 Penn. 426. 
 
WHAT TRANSFERS ARE WITHIN THE STATUTE. 257 
 
 faith and take the title. 1 An oral contract in which there 
 has been a part payment 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. 2 But if a surrender is fraudulently made, the 
 creditors may recover the money so paid. 3 
 
 Assignment of Liens. — An assignment of a mortgage 
 in consideration of money paid by the debtor, if made in 
 fraud, is equivalent to a payment and cancellation of it. 4 
 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 as against creditors in the 
 debtor if it is made fraudulently with his money. 5 The 
 same result follows if the debtor, instead of redeeming, 
 allows the sale to stand, and gives mone'y to another to 
 take an assignment of the sheriff's certificate. 6 
 
 Dissolution of a Partnership. — Although the credit- 
 ors of a partnership have, in certain cases, a privilege or 
 preference to have the debts due to them paid out of the 
 partnership assets to the exclusion of the individual credit- 
 ors of the several partners, yet this is mainly a deriva- 
 tive right, being practically a subrogation to the equity of 
 the individual partners to have the partnership property 
 applied to the payment of the partnership debts, in pre- 
 
 1 Pusey v. Harper, 27 PeDn. 469. 
 
 'Miller v. Specht, 11 Penn. 449; Jackson v. Scott, 18 Johns. 94; 
 Botts v. Cozine, Hoffm. 79 ; vide Bean v. Brackett, 34 N. H. 102. 
 8 Alexander v. Tarns, 13 111. 221 ; Botts v. Cozine, Hoffm. 79. 
 
 4 Stephens v. Sinclair, 1 Hill, 143 ; Thompson v. Van Vechten, 27 N. 
 Y. 568 ; s. c. 5 Abb. Pr. 458 ; s. c. 6 Bosw. 373 ; Remington Paper Co. 
 v. O'Dougherty, 81 N. Y. 474 ; McMarter v. Campbell, 41 Mich. 513. 
 
 5 Legro v. Lord, 10 Me. 191 ; Goff v. Dabbs, 4 Baxter, 300. 
 • Rankin v. Arndt, 44 Barb. 251. 
 
258 WHAT TRANSFERS ARE WITHIN" THE STATUTE. 
 
 ference to those of any individual partner. 1 In their own 
 right they have no lien on the partnership assets, and 
 hence can not interfere with any disposition that is made 
 of them for a valuable consideration and in good faith. 2 
 If the partners, therefore, dissolve the partnership in good 
 faith and divide the partnership assets among them- 
 selves, 3 or transfer them all to one partner/ the partner- 
 ship creditors have no right to priority of payment out of 
 the assets so divided or transferred. After such a division 
 or transfer a partner may use the assets to pay his indi- 
 vidual debts, and such use is not a violation of the rights 
 of the partnership creditors. 5 This power of the partners 
 must, however, be exercised in good faith, otherwise it 
 will be void. A bona fide transmutation of partnership 
 property into individual property is understood to be the 
 act of men acting fairly in winding up the partnership. 6 
 If the dissolution of the partnership is not made in good 
 faith, but for the purpose of diverting the partnership 
 assets from the partnership creditors to the individual 
 
 1 Case v. Beauregard, 99 U. S. 119. 
 
 ! Howe v. Lawrence, 63 Mass. 553 ; Allen v. Center Valley Co., 21 
 Conn. 130 ; Hapgood v. Cornwell, 48 111. 68. 
 
 8 Case v. Beauregard, 99 U. S. 119 : Allen v. Center Valley Co., 21 
 Conn. 130 ; Kimball v. Thompson, 54 Mass. 283. 
 
 4 Ex parte Ruffin, 6 Ves. Jr. 119; ex parte Peake, 1 Madd. 346; ex 
 parte Fell, 10 Ves. Jr. 347 ; ex parte Williams, 11 Ves. Jr. 3 ; McNutt v. 
 Hobson, 39 Penn. 269 ; Smith v. Edwards, 7 Humph. 106 ; Robb v. 
 Mudge, 80 Mass. 534; Howe v. Lawrence, 63 Mass. 553; ex parte Row- 
 landson, 1 Rose, 416 ; Ladd v. Griswold, 9 111. 25 ; Shimer v. Huber, 19 
 N. B. R. 414. 
 
 6 Case v. Beauregard, 99 U. S. 119 ; Rankin v. Jones, 2 Jones Eq. 169 ; 
 Hapgood v. Cornwell, 48 111. 68 ; Goembell v. Arnett, 100 111. 34 ; Wil- 
 cox v. Kellogg, 11 Ohio, 394 ; Baker's Appeal, 21 Penn. 76 ; Armstrong 
 v. Fahnestock, 19 Md. 58 ; Dimon v. Hazard, 32 N. Y. 65 ; Bullett v. 
 Chartered Fund, 26 Penn. 108 ; Sage v. Chollar, 21 Barb. 596 ; Pflrman 
 v. Koch, 1 Cin. 460. 
 
 6 Ex parte Ruffln, 6 Ves. Jr. 119. 
 
WHAT TRANSFERS ARE WITHIN THE STATUTE. 259 
 
 creditors, then it is fraudulent and the partnership credit- 
 ors are entitled to priority of payment out of the assets, 1 
 even though they may have been transferred to pay indi- 
 vidual debts. 2 In such case the insolvency of the part- 
 nership is a fact that may be considered in determining 
 whether the dissolution is in good faith or not. 3 A disso- 
 lution of a partnership and a division of the assets among 
 the partners according to their respective interests are not 
 fraudulent, although the object of such division is to pre- 
 vent the individual creditors of one partner from levying 
 upon the partnership property. 4 But if the object of the 
 dissolution is to delay, hinder or defraud the individual 
 creditors of one partner, then it is void. 5 
 
 Fraudulent Judgment. — The forms of the law do not 
 constitute a protection against fraud, or give validity 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 
 
 1 In re Owen Byrne, 1 N. B. R. 464 ; S. C. 16 A. L. Reg. 499 ; in re 
 Francis Tomes, 19 N. B. R. 36 ; Collins v. Hood, 4 McLean, 186 ; in re 
 Cook & Gleason, 3 Biss. 122. 
 
 2 Person v. Monroe, 21 N. H. 462 ; Tracy v. Walker, 1 Flippin, 41 ; 
 Phelps v. McNeely, 66 Mo. 554 j David v. Birckard, 53 Wis. 492; Col- 
 lins v. Hood, 4 McLane, 186 ; ex parte Benjamin Mayou, 4 De G. J. & S. 
 
 ■664; Sanderson v. Stockdale, 11 Md. 563; Flack v. Charron, 29 Md. 311; 
 Anderson v. Maltby, 4 Bro. Ch. 423. 
 
 "Stumer v. Huber, 19 N. B. R. 414; Frank v. Peters, 9 Ind. 344. 
 
 4 Atkins v. Saxton, 77 K". Y. 195. 
 
 5 Burrill v. Lowry, 18 ST. B.R. 367 ; Weaver v. Ashcroft, 50 Tex. 427. 
 
260 WHAT TRANSFERS ARE WITHIN THE STATUTE. 
 
 from becoming the shield of fraud, the statute was ex- 
 tended to judgments, executions and every other mode of 
 transfer which is not bona fide} 
 
 Sales under Fraudulent Judgments or Mortgages. 
 An intention to delay, hinder or defraud creditors will in- 
 validate a public as well as a private sale, for the mere form 
 of the transfer can not give it validity. The law requires 
 that a debtor's property shall be devoted to the payment 
 of his debts, and does not tolerate any subterfuge or device 
 which is intended to divert it from that purpose. A sale 
 which is effected by fraud is no sale, and constitutes no 
 impediment to creditors in subjecting the property to 
 their debts. 2 A fraudulent judgment 3 or attachment, 4 
 therefore, with an execution and sale thereunder, con- 
 fers no title on a purchaser who is a party to the 
 fraud, whether he is the ostensible judgment or attaching 
 creditor 5 or some other person. 6 Even though a judg- 
 ment 7 or mortgage 8 was originally recovered or given in 
 
 ' Yoder v. Standiford, 7 Mon. 478 ; Beattie v. Pool, 13 S. C. 379 ; 
 Shainwald v. Lewis, 6 Fed. Rep. 753 ; s. c. 6 Saw. 556 ; Shallcross v. 
 Deats, 43 N. J. 177 ; Mulford v. Stratton, 41 N". J. 466. 
 
 8 Hammock v. McBride, 6 Geo. 178 ; Pennington v. Chandler, 5 Har- 
 ring. 394 ; Ansley v. Carlos, 8 Ala. 900 ; s. c. 9 Ala. 973 ; Bentley v. 
 Heintze, 33 N. J. Eq. 405. 
 
 "Bumellv. Johnson, 9 Johns. 243 ; Christopherson v. Burton, 3 Exch. 
 160 ; s. c. 18 L. J. Exch. 60 ; Boardman v. Keeler, 1 Aik. 158 ; Metro- 
 politan Bank v. Durant, 22 N. J. Eq. 35 ; Hammock v. McBride, 6 Geo. 
 178; Pennington v. Chandler, 5 Harring. 394. 
 
 4 Briody v. Conro, 42 Cal. 135. 
 
 6 Bumell v. Johnson, 9 Johns. 243 ; Boardman v. Keeler, 1 Aik. 158 ; 
 Hammock v. McBride, 6 Geo. 178. 
 
 6 Christopherson v. Burton, 3 Exch. 160 ; s. c. 7 L. J. Exch. 60. 
 
 1 Gibbs v. Neely, 7 Watts, 305 ; Serfoss v. Fisher, 10 Penn. 184 ; Floyd 
 v. Goodwin, 8 Yerg. 484; Stephens v. Barnett, 7 Dana, 257 ; Remington 
 Paper Co. v. O'Dougherty, 81 N. Y. 474. 
 
 8 Warner v. Blakeman, 4 Abb. Ap. 530. 
 
WHAT TRANSFERS ARE WITHIN THE STATUTE. 261 
 
 good faith for a real debt, yet if it is kept on foot for 
 fraudulent purposes after it has been satisfied, it comes 
 within the statute as effectually as if it had been originally 
 contrived to delay, hinder or defraud creditors. The 
 character of the device is referred to the time when it 
 is used for the purpose of fraud, and if then false and 
 feigned, it is fully within the interdict of the statute and 
 the provisions of the common law, for that which is true 
 in its origin may become foul by subsequent events. 
 
 Purchases at Public Sales with Debtor's Money. — 
 A public sale may be void although it is made in satisfac- 
 tion of a real debt, and the creditor is innocent of the 
 guilty scheme, and ignorant that he is made subservient to 
 its execution. The advantage obtained by an honest 
 creditor can not 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, nor can his innocence purge their bad 
 faith. 1 If the debtor, for instance, at a public sale under 
 a mortgage 2 or an execution, 3 advances the money with 
 which another purchases the property, there is as against 
 creditors no sale. The transaction, it is true, assumes the 
 form of a public sale, but this is a fiction. The form is 
 
 . ' Dobson v. Erwin, 1 Dev. & Bat. 569 ; s. c. 4 Dev. & Bat. 201 ; 
 Yoder v. Standiford, 7 Mon. 478. 
 
 2 Gutzwiller v. Lackman, 23 Mo. 168. 
 
 3 Morris v. Allen, 10 Ired. 203; Abney v. Kingsland, 10 Ala. 355; 
 Payne v. Craft, 7 W. & S. 458 ; Hays v. Heidelberg, 9 Penn. 203 ; Griffin 
 v. Wardlaw, 1 Harper Eq. 481 ; Dobson v. Erwin, 1 Dev. & Bat. 569 ; 
 S. O. 4 Dev. & Bat. 201 ; Miller v. Frajey, 21 Ark. 22; Rankin v. Arndt, 
 44 Barb. 251 ; Stovall v. Farmers' Bank, 16 Miss. 305 ; Duncan v. Forsyth, 
 3 Dana, 229 ; 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 ; Goodwin v. Goodwin, 20 Geo. 600; 
 Hubbard v. Allen, 59 Ala. 283 ; Fulton v. Woodman, 54 Miss. 158. 
 
262 WHAT TRANSFERS ARE WITHIN THE STATUTE. 
 
 merely apparent, not real. There is in such a case no 
 distinction between a conveyance directly from the debtor 
 and one from the sheriff or other public officer. In reality 
 the conveyance is from the debtor through the sheriff or 
 other public officer. 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 
 substantially as much a sale inter partes as if there 
 were no intervention of the sheriff or other public officer. 
 If the money is not paid at the time, but is furnished 
 afterwards, the same principle applies, as, for instance, 
 if the purchaser receives the money from, the debtor 
 before the execution of the deed, 1 or if the plaintiff 
 in the execution is the purchaser at the sale and gives no 
 credit for the proceeds, and afterwards receives full satis- 
 faction of his debt in another way. 2 Where a part of the 
 money is advanced by the purchaser and a part by the 
 debtor, the transaction depends on the actual intent of the 
 parties. If there is no deception, but open dealing, the 
 purchaser may take a deed in his own name to secure his 
 advance. 3 But if there is an intent to delay, hinder or 
 defraud creditors, then, although the purchaser may 
 advance a portion of the money, yet if he takes a deed 
 with the intent to claim the estate absolutely as against 
 other creditors, his own advances can not rescue it from 
 the legal consequences of the corrupt combination. 4 If a 
 
 ; Griffin v. Wardlaw, 1 Harper Eq. 481. 
 
 "Schott v. Chancellor, 20Penn. 195; s. c. 23 Penn. 68. 
 
 'Hawkins v. Sneed, 3 Hawks, 149 ; Dobaon v. Erwin, 1 Dev. & Bat. 
 569 ; s. C. 4 Dev. & Bat. 201. 
 
 * Dobson v. Erwin, 1 Dev. & Bat. 569 ; s. c. 4 Dev. & Bat. 201 ; Burke 
 v. Murphy, 27 Miss. 167 ; Ewing v. Gray, 12 Ind. 64. 
 
"WHAT TRANSFERS ARE WITHIN THE STATUTE. 263 
 
 party buys the property under an execution with an 
 understanding to hold it for the benefit of the debtor and 
 the debtor repays the money, it may be reached. 1 If the 
 person who buys the property is not a party to any fraudu- 
 lent purpose, his purchase is valid although the debtor 
 gave money to another to buy it. 2 
 
 Fraudulent Public Sales where the Money is Paid 
 by Others.— A public sale to the highest bidder, under a 
 mortgage 3 or an execution, 4 may be fraudulent although 
 the purchaser advances all the money, for it constitutes 
 no protection against fraud, but is frequently used to 
 deceive creditors on account of its apparent publicity and 
 fairness, and because it appears to be the act of the law 
 and not of the debtor. It moreover has the advantage of 
 being a convenient mode of selling the property for an 
 inadequate consideration, by reason of the sacrifice that 
 usually attends such a sale. The circumstance that the 
 purchaser pays his own money is evidence that the sale is 
 bona fide, but is not conclusive, 5 for if there is a combina- 
 tion between the purchaser and the debtor to have the 
 
 1 Ward v. Lamberth, 31 Geo. 150 ; Trimble v. Turner, 21 Miss. 348. 
 2 Sharpe v. Williams, 76 N. C. 87. 
 
 3 Hawkins v. Allston, 4 Ired. Eq. 137 ; Overton v. Morris, 3 Port. 249 
 Beeler v. Bullett, 3 A. K. Marsh. 280 ; Garland v. Rives, 4 Rand. 282 
 Lipperd v. Edwards, 39 Ind. 165 ; Roach v. Deering, 17 Miss. 316 
 Bickley v. Norris, 2 Brev. 252 ; Compton v. Perry, 23 Tex. 414; Thomson 
 v. Hester, 55 Miss. 656. 
 
 4 Morris v. Allen, 10 Ired. 203; Brodie v. Seagrave, Taylor, 144 
 Eoulk v. M'Farlane, 1 W. & S. 297 ; Stephens v. Barnett, 7 Dana, 257 
 Pennington v. Chandler, 5 Harring. 394; White v. Trotter, 21 Miss. 30 
 Stpvall v. farmers' Bank, 16 Miss. 305 ; Duncan v. Forsyth, 3 Dana, 229 
 Forrest v. Camp, 16 Ala. 642 ; Dick v. Cooper, 24 Penn. 217 ; Ansley v 
 Carlos, 9 Ala. 973 ; s. o. 8 Ala. 900 ; Crary v. Sprague, 12 Wend. 41 
 Toder v. Standiford, 7 Mon. 478 ; Ward v. Lamberth, 31 Geo. 150 ; Kilby 
 v. Haggin, 3 J. J. Marsh. 208 ; Trimble v. Turner, 21 Miss. 348. 
 
 e Morris v. Allen, 10 Ired. 203. 
 
264 WHAT TRANSFERS ARE WITHIN THE STATUTE. 
 
 property sold for less than its value, in order that the 
 debtor may derive some advantage therefrom, the sale is 
 fraudulent and void as against other creditors. Creditors 
 have a right to demand that the full value of the debtor's 
 property shall be applied to the payment of his debts, and 
 any contrivance to procure a sale for an inadequate con- 
 sideration defeats their just rights, for the excess of the 
 value over the price is thus transferred indirectly, without 
 a valuable consideration. 1 When the property, or any part 
 of it, moreover, is held in secret trust for the debtor, the 
 sale is calculated to baffle creditors, for the title is osten- 
 sibly put out of the debtor and vested in the purchaser, 
 apparently for the sole use of the latter, so as to exempt 
 it from execution, but really for the use of the debtor. 2 
 
 The mode of carrying out the combination is imma- 
 terial. It may be by an insufficient advertisement, 3 or 
 some unusual clause in the advertisement, 4 or by tearing 
 down advertisements that have been put up, 5 or by an 
 agreement that the sale shall be made without any adver- 
 tisement, 6 or by bringing the sale on by surprise, and thus 
 either preventing a general knowledge of it, or making it 
 impossible for a distant creditor whom it is designed to 
 defeat to be present, 7 or by selling the property in large 
 parcels or blocks or en masse, 8 or by inducing others not to 
 
 1 Stovall v. Farmers' Bank, 16 Miss. 305 ; Hawkins v. Allston, 4 Ired. 
 Eq. 137. 
 
 8 Hawkins v. Allston, 4 Ired. Eq. 137 ; Ries v. Rowland, 11 Fed. Rep. 
 657. 
 
 8 Gibbs v. Neely, 7 Watts, 305 ; Smith v. Schwed, 9 Fed. Rep. 483. 
 
 4 Metropolitan Bank v. Durant, 22 N. J. Eq. 35. 
 
 6 Morris v. Allen, 10 Ired. 203 ; Kilby v. Haggin, 3 J. J. Marsh. 208 ; 
 Mechanics' Nat'l Bank v. Burnet Manuf. Co., 33 N. J. Eq. 483. 
 
 6 Morris v. Allen, 10 Ired. 203. ' Morris v. Allen, 10 Ired. 203. 
 
 8 Yoder v. Standiford, 7 Mon. 478 ; White v. Trotter, 21 Miss. 30 ; 
 Trimble v. Turner, 21 Miss. 348; Stephens v. Barnett, 7 Dana, 257; 
 Brodie v. Seagraves, Taylor, 144 ; Metropolitan Bank v. Durant, 22 H". J. 
 
WHAT TRANSFERS ARE WITHIN THE STATUTE. 265 
 
 bid. 1 Whatever may be the mode, the sale will be void 
 if there is an intent on the part of the purchaser and the 
 debtor to delay, hinder, or defraud creditors. There are, 
 however, some acts on the part of the purchaser which 
 have been held not to be fraudulent in themselves It 
 has been decided that a man who has a deed or mortgage 
 covering the property, may give notice of it at the sale, 
 and purchase the property at a reduced price, although he 
 intends by the notice to get the property for a less price 
 than it would otherwise have sold for; 2 but such a notice 
 is so manifestly calculated to deter bidders, that it will 
 render the sale void if there is any concert between the 
 purchaser and the debtor to create a secret trust for him. 3 
 It has also been held that a statement by the purchaser at 
 the sale that he intends to give the benefit of the purchase 
 to the debtor will not of itself make the sale void, although 
 a bidder in consequence thereof refrained from bidding; 
 for it is lawful to do such an act, and it can not be wrong 
 for a man to say openly and candidly that he intends to 
 do it. 4 But although it may not be fraudulent of itself, 
 yet it may be evidence that the sale is not bona fide, 
 especially if there is a previous agreement between the 
 purchaser and the debtor. For every man whose pro- 
 perty is offered for sale is naturally disposed to get the 
 most for it that he can, and to use some exertions to col- 
 lect bidders, in order to make it go as high as possible, 
 
 Eq. 35 ; Smith v. Schwed, 9 Fed. Rep. 483 ; Cox v. Miller, 54 Tex. 16 ; 
 Mechanics' Nat'l Bank v. Burnet Manuf. Co., 33 N. J. Eq. 483. 
 
 1 Yoder v. Standiford, 7 Mon. 478; Kilby v. Haggin, 3 J. J. Marsh. 
 208 ; Trimble v. Turner, 21 Miss. 348 ; Stovall v. Farmers' Bank, 16 Miss. 
 305 ; Foulk v. M'Parlane, 1 W. & S. 297 ; Smith v. Schwed, 9 Fed. Rep. 
 483. 
 
 ! Costillo v. Thompson, 9 Ala. 937. 
 
 8 Ansley v. Carlos, 9 Ala. 973 ; s. c. 8 Ala. 900. 
 
 4 Dick v. Cooper, 24 Penn. 217. 
 
266 "WHAT TRANSFERS ARE "WITHIN THE STATUTE. 
 
 and thus reduce his indebtedness. Although he may not 
 be bound to aid in getting a good price for the property, 
 yet an agreement for his own benefit which restrains him 
 from doing so, and keeps his friends from bidding, mani- 
 festly tends to suppress competition, and thus injure credi- 
 tors and defraud them of their rights. 1 When the pur- 
 chaser acts as agent for both debtor and creditor in the 
 control of the sale, it may be set aside at the instance of 
 another creditor, if there is any inadequacy in the price. 3 
 There are some acts that may be done for the benefit of 
 the debtor, provided that they are done in good faith. 3 A 
 son may purchase his father's land as the highest bidder, 
 in order to provide a home and subsistence for him. 4 A 
 mere agreement by the purchaser to allow the debtor's 
 wife to buy the property upon paying the debt due to him 
 and the price he gives for it, does not make the purchase 
 fraudulent. 5 A party who intends to become a purchaser 
 may agree to aid a creditor to make his debt if the latter 
 will give a portion of it to the debtor's wife. 6 A judg- 
 ment creditor may agree to aid the debtor to sell the 
 property for a higher price and apply the profits to satisfy 
 the judgment. 7 It has also been held that a purchaser 
 will not be affected by the means taken by others to pre- 
 vent rival bidding, if he had no agency therein. 8 
 
 1 Morris v. Allen, 10 Ired. 203. 2 White v. Trotter, 21 Miss. 30. 
 3 Jackson v. Brownell, 3 Caines, 222. * Morris v. Allen, 10 Ired. 203. 
 'Heintze v. Bentley, 34 N. J. Eq. 562. 
 6 Kilby v. Haggin, 3 J. J. Marsh. 208. 
 ' Eagland v. Cantrell, 49 Ala. 294. 
 
 8 Kilby v. Haggin, 3 J. J. Marsh. 208; Thorpe v. Beavans, 73 N. C. 
 241. 
 
CHAPTER XI. 
 
 VOLUNTARY CONVEYANCES. 
 
 Definition of Voluntary Conveyance. — A voluntary 
 conveyance is a conveyance without any valuable consider- 
 ation. The adequacy of the consideration does not enter 
 into the question. The character of purchase or voluntary 
 is determined by the fact whether anything 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 inadequate, the conveyance is not volun- 
 tary. 1 But if there is no valuable consideration, the con- 
 veyance is subject to the law relating to voluntary convey- 
 ances, no matter what the form may be, or whether it 
 proceeded from the free will of the grantor or was made 
 at the instance of others. 2 The doctrine of voluntary con- 
 veyances, 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 relating to fraudulent conveyances, 3 
 as distinguished from mere voluntary conveyances, is 
 applicable. 
 
 1 Jackson v. Peek, 4 Wend. 300 ; Shontz v. Brown, 27 Penn. 123 ; 
 Washband v. Washband, 27 Conn. 424 ; Seward v. Jackson, 8 Cow. 406 ; 
 S. c. 5 Cow. 67 ; Dygert v. Remerschneider, 32 N. Y. 629 ; S. o, 39 Barb. 
 ■417. 
 
 '' Cornish v. Clark, L. R. 14 Eq. 184. 
 
 8 Gruber v. Boyles, 1 Brev. 266 ; Beecher v. Clark, 10 N. B. R. 385 ; 
 s. c. 12 Blatch. 256 ; Fox v. Moyer, 54 N. Y. 125. 
 
268 VOLUNTARY CONVEYANCES. 
 
 Intent of Donor Alone. — It follows from the defini- 
 tion 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 meaning of the statute is a valuable 
 consideration. 1 It is the innocent purchaser and not the 
 innocent donee that is protected. The only question 
 is quo animo the gift or grant is made. It is the motive 
 of the giver and not the knowledge of the acceptor that is 
 to determine the validity of the transfer. 2 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. 3 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 
 
 1 Twyne's Case, 3 Co. 80 ; S. c. Moore, 638 ; Taylor v. Jones, 2 Atk. 
 600 ; Thomson v. Dougherty, 12 S. & E. 448. 
 
 8 Partridge v. Gopp, 1 Eden, 163 ; s. o. 1 Ambl. 596 ; Thomson v. 
 Dougherty, 12 S. &R. 448 ; Mohawk Bank v. Atwater, 2 Paige, 54 ; Van 
 Wyck v. Seward, 18 Wend. 375 ; s. c. 6 Paige, 62 ; 1 Edw. 327 ; Swartz v. 
 Hazlett, 8 Cal. 118 ; Trimble v. Ratcliffe, 9 B. Mon. 511 ; s. c. 12 B. Mon. 
 32 ; Wood v. Hunt, 38 Barb. 302 ; Holmes v. Clark, 48 Barb. 237 ; Ben- 
 nett v. McGuire, 58 Barb. 625 ; s. c. 5 Lans. 183 ; Wise v. Moore, 31 Geo. 
 148 ; Newman v. Cordell, 43 Barb. 448 ; M'Meekin v. Edmonds, 1 Hill 
 Ch. 288; Clark v. Chamberlain, 95 Mass. 257; Hicks v. Stone, 13 Minn. 
 434 ; Peck v. Carmichael, 9 Yerg. 325 ; Gamble v. Johnson, 9 Mo. 605 ; 
 Laughton v. Harden, 68 Me. 208. 
 
 8 Belt v. Raguet, 27 Tex. 471 ; King v. Russell, 40 Tex. 124. 
 
VOLUNTARY CONVEYANCES. 269 
 
 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. 1 It 
 comprehends such conveyances as are made of malice, 
 fraud, covin, collusion or guile, with intent or purpose to 
 delay, hinder or defraud creditors. This intent or pur- 
 pose constitutes the contaminating principle which will 
 infect and vitiate the gift or conveyance, 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 defraud creditors, the conveyance is not 
 within the statute ; if, on the other hand, there is such an 
 intent in the making 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 conveyances, when a man owes, that are pro- 
 hibited, but conveyances with the intent or purpose to 
 delay, hinder or defraud creditors. 2 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. 3 
 
 1 Jones v. Boulter, 1 Cox, 288 ; Worthington v. Shipley, 5 GUI, 449 ; 
 Holloway v. Millard, 1 Madd. 414 ; Doe v. Eoutledge, Cowp. 705 ; Cado- 
 gan v. Kennett, Cowp. 432 ; Gale v. Williamson, 8 M. & W. 405 ; O'Con- 
 nor v. Bernard, 2 Jones, 654 ; Hamilton v. Greenwood, 1 Bay, 173 ; 
 Thomson v. Dougherty, 12 S. & R. 448 ; Clayton v. Brown, 17 Geo. 217. 
 
 8 Lyne v. Bank of Kentucky, 5 J. J. Marsh. 545 ; Clayton v. Brown, 
 17 Geo. 217; Taylor v. Eubanks, 3 A. K. Marsh. 239; Mateerv. Hissim, 
 3 Penn. 160 ; Hunters v. Waite, 3 Gratt. 26; Weed v. Davis, 25 Geo. 684. 
 
 * Weed v. Davis, 25 Geo. 684. 
 
270 VOLUNTARY CONVEYANCES. 
 
 Mode of Establishing Fraudulent Intent. — It is not 
 necessary, however, to prove an actual intent to delay, 
 hinder or defraud creditors. 1 Intent is an emotion or 
 operation of the mind, and can usually be shown only by 
 acts or declarations. 2 The motives which actuate men in 
 the affairs of life can in general be ascertained only by an 
 examination of their acts and all the concomitant circum- 
 stances, and a deduction of the motive from them in accord- 
 ance with those principles which are shown by observa- 
 tion and experience to rule human conduct. 3 The intent 
 to defraud need not, therefore, be made out by any direct 
 proof of that particular fact. In this as well as in the 
 other cases, where the intention 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 knowledge 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. 4 
 
 Intent a Conclusion of Law. — Every man is held to 
 know the law and the facts regarding his own affairs. 5 
 
 1 Carlisle v. Rich, 8 N. H. 44; Freeman v. Pope, 5 L. R. Ch. Ap. 538; 
 S. O. L. R. 9 Eq. 206; Norton v. Norton, 59 Mass. 524; Potter v. 
 McDowell, 31 Mo. 62 ; Jenkyn v. Vaughan, 3 Drew. 419 ; s. o. 25 L. J. 
 Ch. 338 ; Smith v. Cherrill, 4 L. R. Eq. 390 ; s. o. 16 L. T. (N. S.) 517. 
 
 * Babcock v. Eckler, 24 N.Y. 623. 8 Eilley v. Register, 4 Minn. 391. 
 
 4 Van Wyck v. Seward, 18 Wend. 375 ; s. c. 6 Paige, 62 ; s. c. 1 Edw. 
 327. 
 
 6 Swartz v. Hazlett, 8 Cal. 118 ; Christy v. Courtenay, 13 Beav. 96 ; 
 Hunters v. Wait, 3 Gratt. 26. 
 
VOLUNTARY CONVEYANCES. 271 
 
 The law also presumes that every man intends the neces- 
 sary consequence of his act, and if the act necessarily 
 delays, hinders, or defrauds his creditors, then the law 
 presumes that it is done with a fraudulent intent. 1 The 
 intent is to be assumed from the act. 2 The circumstances 
 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 consequence of his own voluntary act. 3 
 
 No Inquiry into Secret Motives. — The law will not 
 speculate about what is actually passing in the donor's 
 mind, 4 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 hinders, delays or 
 defrauds his creditors, it is fraudulent. 5 His actual mo- 
 
 1 Potter v. McDowell, 31 Mo. 62 ; O'Connor v. Bernard, 2 Jones, 654 ; 
 Freeman v. Pope, L. E. 5 Ch. Ap. 538 ; s. c. L. E. 9 Eq. 206 ; Norton v. 
 Norton, 59 Mass. 524; Smith v. Cherrill, L. E. 4 Eq. 390 ; s. o. 16 L. T. 
 (N. S.) 517 ; French v. French, 6 De G-. M. & G. 95 ; s. c. 25 L. J. Ch. 
 612 ; Strong v. Strong, 18 Beav. 408 ; Freeman v. Burnham, 36 Conn. 469 ; 
 Corlett v. Eadcliffe, 14 Moore P. C. 121 ; Eeese Eiver Mining Co. v. 
 Atwell, L. E. 7 Eq. 347 ; s. c. 20 L. T. (N. S.) 163 ; Van Wyck v. Sew- 
 ard, 18 Wend. 375 ; s. c. 6 Paige, 62 ; 1 Edw. 327 ; Thompson v. Webster, 
 7 Jur. (N. S.) 531 ; s. C. 9 W. E. 641 ; 4 Drew, 628 ; 4 De G. & J. 600 ; 
 s. C. 4 L. T. (N. S.) 750 ; Mackay v. Douglass, L. E. 14 Eq. 106 ; s. c. 
 26 L. T. (N. S.) 71. 
 
 'Freeman v. Pope, L. E. 5 Ch. Ap. 538 ; s. C. L. E. 9 Eq. 206.. 
 
 8 Babcock v. Eckler, 24 N. Y. 623 ; First Nat'l Bank v. Bertschy, 52 
 Wis. 438. 
 
 4 Freeman v. Pope, L. E. 5 Ch. Ap. 538 ; S. C. L. E. 9 Eq. 206. 
 
 6 Potter v. McDowell, 31 Mo. 62 ; Patten v. Casey, 57 Mo. 118 ; Cole 
 v. Tyler, 65 N. Y. 573. 
 
 18 
 
272 VOLUNTARY CONVEYANCES. 
 
 tives may be. considerations of generosity and kindness, 1 or 
 an insufficient attention to the amount of his indebtedness 
 or the extent of his assets, 2 or ignorance, or mistake, or 
 misconception. 3 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 evi- 
 dence is unavailing. 4 The debtor may have some other 
 purpose in view, but the intent to defraud is a part and 
 parcel of his act. 5 
 
 Principles of the Law relating to Voluntary Con- 
 veyances. — It is upon these principles that the law 
 relating to voluntary conveyances rests. In the construc- 
 tion 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 dis- 
 ables himself from paying his debts. In such cases the 
 presumption of fraud arises and may exist without the 
 imputation of moral turpitude. 6 The principle is that 
 persons must be just before they can be generous, and 
 that debts must be paid before gifts can be made 7 This 
 
 1 Freeman v. Pope, L. B. 5 Ch. Ap. 538 ; s. o. L. B. 9 Eq. 206 ; Reese 
 Eiver Mining Co. v. Atwell, L. E. 7 Eq. 347 ; S. 0. 20 L. T. (N. S.) 163. 
 
 'Norton v. Norton, 59 Mass. 524; Black v. Sanders, 1 Jones (N. C.) 
 67 ; Van Wyck v. Seward, 18 Wend. 375 ; S. o. 6 Paige, 62 ; 1 Edw. 327. 
 
 'Hunters v. Waite, 3 Gratt. 26. 4 Hunters v. Waite, 3 Gratt. 26. 
 
 6 Van Wyck v. Seward, 18 Wend. 375 ; s. c. 6 Paige, 62 ; 1 Edw. 327. 
 
 * O'Connor v. Bernard, 2 Jones, 654. 
 
 'Partridge v. Gopp, 1 Eden, 163; s. o. 1 Ambl. 596; Freeman v. 
 Pope, L. R. 5 Ch. Ap. 538 ; s. o. L. E. 9 Eq. 206. 
 
VOLUNTARY CONVEYANCES. 273 
 
 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 sanction in the purest morality, the 
 fountain of all law. 1 
 
 There need be no Secret Trust. — 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 relieve the 
 donor and not see him suffer want, 2 and that this pre- 
 sumed trust affords the evidence of an intent to defraud. 3 
 It is well settled, however, that it is not necessary to 
 establish any secret trust. 4 The conveyance will be in- 
 valid, although there is a real transfer between the parties, 
 if the circumstances are such as to raise a conclusive pre- 
 sumption of an intent to defraud. 
 
 Why Voluntary Conveyance is Fraudulent. — 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 evidence of his ability 
 to pay, and as a fund from which, if other resources of the 
 debtor fail, they are to receive their demands. The very 
 act of giving credit implies a confidence that he will not 
 diminish this fund to their prejudice. 5 If he divests him- 
 self of his property by giving it away after he has obtained 
 credit, and thereby renders himself unable to pay his 
 debts, he violates the confidence which the creditors re- 
 posed in him. 6 This violation of confidence constitutes a 
 
 1 Craig v. Gamble, 5 Fla. 430. 
 
 8 Twyne's Case, 3 Co. 80 ; s. C. Moore, 638. 
 
 3 Kipp v. Hanna, 2 Bland, 26. 
 
 4 Partridge v. Gopp, 1 Eden, 163 ; S. C Ambl. 596 ; Emery v. Vinall, 
 26 Me. 295. 
 
 6 Eppes v. Randolph, 2 Call. 103. 
 6 Brice v. Myers, 5 Ohio, 121. 
 
274 VOLUNTARY CONVEYANCES. 
 
 fraud, for no man has such, an absolute power over his 
 own property as that he can alienate the same, when such 
 alienation directly and necessarily tends to delay, hinder, 
 or defraud his creditors, unless it is made on good con- 
 sideration and bona fide. 1 It is true that they frequently 
 look to the debtor's honesty, industry and skill in busi- 
 ness, 2 but the law cannot take these into account, for they 
 do not afford any means by which the payment of debts 
 can be enforced. 
 
 Voluntary Conveyance is a Badge of Fraud. — A 
 voluntary conveyance by a person who is indebted is a 
 well-recognized badge of fraud, 3 for its natural and prob- 
 able tendency is to delay, hinder and defraud creditors. 
 The end in view must be to make the thing conveyed 
 cease to be the property of him who conveys, and 
 become the property of him to whom it is conveyed, 
 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 operation of that enactment con- 
 veyances 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 par- 
 ticular property, although actually existing, is not prima 
 facie injurious to creditors. But a voluntary conveyance 
 
 1 Partridge v. Gopp, 1 Eden, 163 ; s. c. 1 Ambl. 596. 
 
 * Toulmin v. Buchanan, 1 Stew. 67. 
 
 8 Goodson v. Jones, Styles, 445 ; Doe v. Routledge, Cowp. 705 ; Hoye 
 v. Penn, 2 H. & J. 477 ; s. C. 1 Bland, 28 ; Jones v. Boulter, 1 Cox,. 288 ; 
 Woodson v. Pool, 19 Mo. 340 ; Russell v. Hammond, 1 Atk. 14 ; George 
 v. Milbanke, 9 Ves. 189. 
 
VOLUNTARY CONVEYANCES. 275 
 
 must be founded upon a design to exempt the estate from 
 the claims of creditors, for the act of making the convey- 
 ance 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 purpose 
 of the transfer. If the title of the donee would defeat 
 creditors, the intention of making the transfer must be to 
 hinder, delay and defraud them. 1 A voluntary conveyance 
 is therefore considered as prima facie evidence of an 
 intent to delay, hinder or defraud creditors. 2 
 
 Comparative Indebtedness. — The presumption of an 
 intent to delay, hinder and defraud creditors arising from 
 a voluntary conveyance by a person who is in debt is not 
 conclusive, for- such a conveyance is fraudulent only when 
 it necessarily delays, hinders or defrauds them. Indebt- 
 edness, therefore, is only one circumstance from which an 
 inference of an intent to defraud may be drawn, 3 and must 
 
 1 O'Daniel v. Crawford, 4 Dev. 197 ; Smith v. Patton, 6 L. R. Ir. 32. 
 
 2 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. S.) 531 ; s. C. 4 De G. & J. 600 ; S. 0. 4 Drew, 628 ; s. c. 9 W. R. 641 ; 
 s. c. 4 L. T. (N. S.) 50 ; Jackson v. Timmerman, 7 Wend. 436 ; Jackson 
 v. Town, 4 Cow. 599 ; Thompson v. Hammond, 1 Edw. Ch. 497 ; Lerow 
 v. Wilmarth, 91 Mass. 382 ; Bortrand v. Elder, 23 Ark. 494 ; Winchester 
 v. Charter, 94 Mass. 606 ; s. c. 97 Mass. 140 ; s. O. 102 Mass. 272 
 Doyle v. Sleeper, 1 Dana, 531 ; Taylor v. Eubanks, 3 A. K. Marsh, 239 
 Wilson v. Buchanan, 7 Gratt. 334 ; Wilson v. Kohlhein, 46 Miss. 346 
 Stevens v. Bobinson, 72 Me. 381 ; vide Hyde v. Chapman, 33 Wis. 391 
 Holden v. Burnham, 63 N. T. 74 ; Pratt v. Curtis, 6 N. B. R. 139. 
 
 8 Richardson v. Smallwood, Jac. 552 ; Cadogan v. Kennett, 2 Cowp. 
 432 ; Lyon v. Bank of Kentucky, 5 J. J. Marsh. 545 ; Skarf v. Soulby, 1 
 H. & Tw. 426 ; s. c. 1 Mc. & G. 364 ; 16 Sim. 344 ; 19 L. J. Ch. 30. 
 
276 VOLUNTARY CONVEYANCES. 
 
 be considered in connection with the donor's estate. 1 The 
 true rule by which the fraudulency or fairness of a volun- 
 tary conveyance 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 with- 
 draw 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 payment. 3 In other 
 words, the fraudulent intent is to be collected from the 
 comparative value and magnitude of the gift. 3 It must be 
 determined from all the circumstances in each particular 
 case, whether there was an intent on the part of the donor 
 in making the conveyance to delay, hinder or defraud his 
 creditors. 4 
 
 Burden of Proof. — The burden of proof rests upon 
 the donee to establish the circumstances which will repel 
 the presumption of a fraudulent intent. The conveyance 
 stands condemned as fraudulent unless the facts which 
 may give it validity are proved by him. 5 If no evidence 
 
 1 Dietus v. Fuss, 8 Md. 148. 
 
 2 Kipp v. Hanna, 2 Bland, 26 ; Bonny v. Griffith, Hayes, 115 ; Taylor 
 v. Heriot, 4 Dessau. 227 ; Babcock v. Eckler, 24 ST. Y. 623 ; Taylor v. 
 Eubanks, 3 A.K. Marsh. 239 ; Carr v. Breese, 81 N. Y. 584. 
 
 8 Partridge v. Gopp, 1 Eden, 163 ; s. o. Ambl. 596 ; Jacks v. Tunno, 
 3 Dessau. 1. 
 
 4 Thompson v. Webster, 7 Jur. (N. S.) 531 ; s. c. 4 Drew. 628 ; s. c. 9 
 W. R. 641 ; s. c. 4 De G. & J. 600 ; S. c. 4 L. T. (N. S.) 750 ; Clements 
 v. Eccles, 11 Ir. Eq. 229. 
 
 6 Baxter v. Sewell, 3 Md. 334 ; S. o. 2 Md. Ch. 447 ; Spindler v. Atkin- 
 son, 3 Md. 409 ; s. C. 1 Md. Ch. 507 ; Ellinger v. Crowl, 17 Md. 361 ; Hun- 
 ters v. Waite, 3 Gratt. 26 ; Crossley v. Ellworthy, L. R. 12 Eq. 158 ; 
 Wilson v. Buchanan, 7 Gratt. 334; Woolston's Appeal, 51 Penn. 452; 
 Crumbaugh v. Kugler, 2 Ohio St. 373 ; Reynolds v. Lansford, 16 Tex. 
 286 ; Raymond v. Cook, 31 Tex. 373 ; Oliver v. Moore, 23 Ohio St. 473 ; 
 Spence v. Dunlap, 6 Lea. 457. 
 
VOLUNTARY CONVEYANCES. 277 
 
 is given to show that the donor had ample means to meet 
 his liabilities, then the transfer must be deemed void as 
 against creditors. 1 
 
 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. 2 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. 3 If a man is entirely free from debt, 
 he may therefore make a voluntary conveyance in good 
 faith. 4 He may, if he pleases, give away 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 impairs his credit, and, if 
 
 1 Ellinger v. Crowl, 17 Md. 361 ; Matthews v. Torinus, 22 Minn. 132. 
 
 8 Sexton v. Wheaton, 8 Wheat. 229 ; Thomson v. Dougherty, 12 S. & 
 B. 448. 3 Creed v. Lancaster Bank, 1 Ohio St. 1. 
 
 4 Sexton v. Wheaton, 8 Wheat. 229 ; Goodson v. Jones, Styles, 445 ; 
 Middlecome v. Marlow, 2 Atk. 519 ; Faringer v. Bamsay, 4 Md. Ch. 33 ; 
 S. C. 2 Md. 365 ; Townsend v. Windham, 2 Ves. Sr. 1 ; Bussell v. Ham- 
 mond, 1 Atk. 14 ; Battersbee v. Farrington, 1 Swanst. 106 ; s. c. 1 Wils. 
 88 ; Bonny v. Griffith, 1 Hayes, 115 ; Benton v. Jones, 8 Conn. 186 ; 
 Stevens v. Olive, 2 Brock. 90 ; Glaister v. Hewer, 8 Ves. 196 ; Sweeney 
 v. Damron, 47 111. 450 ; Winebrenner v. Weisiger, 3 Mon. 32 ; Baker v. 
 Welch, 4 Mo. 484 ; Charlton v. Gardner, 11 Leigh, 281 ; Haskell v. Bake- 
 well, 10 B. Mon. 106 ; Sagitary v. Hide, 2 Vern. 44 ; Walker v. Burrows, 
 1 Atk. 93 ; Holmes v. Penney, 3 K. & J. 90 ; Boberts v. Gibson, 6 H. & 
 J. 116 ; Phillips v. Wooster, 36 N. Y. 412 ; S. c. 3 Abb. Pr. (K. S.) 475 ; 
 Mumma v. Weaver, 2 Pearson, 172. 
 
278 VOLUNTARY CONVEYANCES. 
 
 openly done, warns those with whom he deals not to trust 
 him too far. 1 If the debts are fully secured, 2 or are fully 
 provided for in the conveyance, 3 the gift is in the same 
 condition as if the donor were entirely free from debt. 
 
 Mere Indebtedness. — It is not any and every indebted- 
 ness 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 conveyance, 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 debt at the time of 
 the making of the gift would be such evidence of a fraudu- 
 lent intention as to render a voluntary conveyance void, 
 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 contracted, 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. 4 To say that the mere circumstance of a 
 
 1 Sexton v. Wheaton, 8 Wheat. 229 ; Martin v. Olliver, 9 Humph. 561 ; 
 Kid v. Mitchell, 1 ST. & M. 334 ; Stevens v. Olive, 2 Brock. 90 ; Dick v. 
 Hamilton, 1 Deady, 322. 
 
 2 Stephens v. Olive, 2 Brock. 90 ; Manders v. Manders, 4 Ir. Eq. 434 ; 
 Pell v. Tredwell, 5 Wend. 661 ; Johnston v. Zane, 11 Gratt. 552 ; Hester 
 v. Wilkinson, 6 Humph. 215 ; Williams v. Davis, 69 Penn. 21 ; Nippe's 
 Appeal, 75 Penn. 472. 
 
 3 George v. Millbank, 9 Ves. 189 ; Kid v. Mitchell, 1' N. & M, 334 ; 
 Hester v. Wilkinson, 6 Humph. 215 ; Vance v. Smith, 2 Heisk. 343. 
 
 4 Townsend v. Westacott, 2 Beav. 340 ; s. c. 9 L. J. Ch. 24] : 4 Beav. 
 58. 
 
VOLUNTARY CONVEYANCES. 279 
 
 person's being indebted at the time, without reference to 
 the comparative state of his debts and of his means of 
 paying them, is conclusive evidence of a fraudulent inten- 
 tion with respect to his creditors, would be asserting that 
 which is contrary to every day's experience, and would 
 be giving an operation to the statute not to be warranted 
 upon the most liberal rules of construction in the suppres- 
 sion of fraud. 1 It is accordingly settled that mere indebt- 
 edness alone is not sufficient to render a voluntary convey- 
 ance void, if the donor has ample means left to pay his 
 debts. 3 
 
 1 Taylor v. Eubanks, A. K. Marsh. 239. 
 
 * Manders v. Manders, 4 Ir. Eq. 434 ; Skarf v. Soulby, 1 H. & Tw. 426 ; 
 S. c. 1 Mc. & G. 364 ; s. 0. 16 Sim. 344'; s. o. 19 L. J. Ch. 30 ; Martyn v. 
 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 
 of Ky., 5 J. J. Marsh. 545 ; Dietus v. Fuss, 8 Md. 148 ; Lush v. Wilkinson, 
 5 Ves. 384 ; Burkey v. Self, 4 Sneed, 121 ; Dillard v. Dillard, 3 Humph. 
 41 ; Smith v. Littlejohn, 2 McCord, 362 ; Thacher v. Phinney, 89 Mass. 
 146 ; Brackett v. Wait, 4 Yt. 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 v. Pearce, 7 W. & S. 97 ; Mateer v. Hissim, 3 Penna. 
 160 ; Hudnal v. Wilder, 4 McCord, 294 ; s. c. 1 McCord, 227 ; Simpson v. 
 Graves, 1 Biley Ch. 219, 232 ; Kipp v. Hanna, 2 Bland, 26 ; Kelly's Ap- 
 peal, 77 Penn. 232 ; Teed v. Valentine, 65 N. T. 471 ; Hamburger v. 
 Peter, 8 Oregon, 181 ; Patrick v. Patrick, 77 111. 555 ; Chambers v. Sallie, 
 29 Ark. 407 ; Lincoln v. McLaighler, 74 111. 11 ; French v. Holmes, 67 
 Me. 186 ; Holmes v. Elliott, 65 Ind. 78 ; McFadden v. Mitchell, 54 Cal. 
 628; Koster v. ffiller, 4 Bradw. 21. 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. Light- 
 foot, 26 Ala. 443 ; Spencer v. Godwin, 30 Ala. 355 ; Pinkston v. McLe- 
 more, 31 Ala. 308 ; Lowry v. 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, 12 N. J. 
 Eq. 51 ; Moore v. Spence, 6 Ala. 506 ; Costillo v. Thompson, 9 Ala. 
 937 ; Lockyer v. De Hart, 6 7$. J. 450 ; Houston v. Boyle, 10 Ired. 496 ; 
 Enders v. Williams, 1 Met. (Ky.) 346 ; Hanson v. Buckner, 4 Dana, 251 ; 
 Laurence v. Lippincott, 6 N. J. 473 ; Mitchell v. Berry, 1 Met. (Ky.) 602 ; 
 
280 VOLUNTARY CONVEYANCES. 
 
 Insolvency. — 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 inevi- 
 tably 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 necessary to pro- 
 nounce it void. Such a transaction is not to be looked on 
 only as a means by which the intent to defraud may be 
 inferred. The act is altogether incompatible and irrecon- 
 cilable 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 voluntary, and if it is 
 
 Todd t. Hartley, 2 Met. (Ky.) 206; Bogard v. Gardley, 12 Miss. 302; 
 Foote v. Cobb, 18 Ala. 585 ; High v. Nelms, 14 Ala. 350 ; Gannard v. 
 Eslava, 20 Ala. 732 ; Swayze v. McCrossin, 21 Miss. 317 ; Spencer v. 
 Godwin, 30 Ala. 355 ; Thomas v. De Graffinreid, 17 Ala. 602 ; Kahl v. 
 Martin, 26 29". J. Eq. 60 ; Johnston v. Gill, 27 Gratt. 587 ; Lockhard v. 
 Beckley, 10 W. Va. 87 ; 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 con- 
 veyance that has not been deemed fraudulent"; and in Townsend v. 
 Windham, 2 Ves. Sr. 1, he said : "I know of no case where a man in- 
 debted 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 may 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 prin- 
 ciple, and his language should be construed with a view to the facts o'f 
 the case and the controversy of the times. It must be remembered that 
 all 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 satis- 
 fied. 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. Randolph, 2 
 Brock. 132. 
 
VOLUNTARY CONVEYANCES. 281 
 
 voluntary, it is void as against creditors. 1 In such case 
 the conveyance is void although the indebtedness is small 
 and the property is of little value. 2 
 
 1 Morgan v. M'Lelland, 3 Dev. 82 ; Wellington v. Fuller, 38 Me. 61 ; 
 Kimmell 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- 
 myers v. Mairs, Riley, 208 ; Dulany v. Green, 4 Harring. 285 ; Walcott v. 
 Almy, 6 McLean, 23; Doughty v. King, 10 X. J. Eq. 396; Barnard v. 
 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 ; s. o. 5 Lans. 183 ; Raymond v. Cook, 
 31 Tex. 373 ; Worthington v. Shipley, 5 Gill, 449 ; Manhattan Co. v. Os- 
 good, 15 Johns. 162 ; s. c. 3 Cow. 612 ; Buist v. Smyth, 2 Dessau. 214; 
 Lyne v. Bank of Ky., 5 J. J. Marsh. 545 ; Beckham v. Secrest, 2 Rich. Eq. 
 54 ; Arnold v. Bell, 1 Hayw. 396 ; Caston v. Cunningham, 3 Strobh. 59 ; 
 Godell v. Taylor, Wright, 82 ; Fones v. Rice, 9 Gratt. 568 ; Doughty v. 
 King, 10 N. J. Eq. 396 ; Craig v. Gamble, 5 Fla. 430 ; Gray v. Tappan, 
 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 ; Catchins v. Manlove, 39 Miss. 655 ; Everett v. Read, 3 N. H. 55 ; 
 Humbert v. Methodist Church, Wright, 213 ; Welcome v. Batchelder, 23 
 Me. 85 ; Carlisle v. Rich, 8 N. H. 44 ; Bridgford v. Riddell, 55 111. 261 ; 
 Bennett v. McGuire, 58 Barb. 625 ; s. c. 5 Lans. 183 ; Myers v. King, 42 
 Md. 65 ; Moreland v. Atchison, 34 Tex. 351 ; Wright v. Campbell, 27 Ark. 
 637 ; San Francisco R. R. Co. v. Bee, 48 Cal. 398 ; Mitchell v. Byrns, 67 
 111. 522 ; Shorter v. Methoin, 52 Geo. 225 ; Russell v. Randolph, 26 Gratt. 
 705 ; Keating v. Keefer, 5 N". B. R. 133 ; s. C. 4 A. L. T. 162 ; Kehr v. 
 Smith, 20 Wall. 31 ; s. c. 2 Dill. 50; s. C. 7 N. B. R. 97 ; S. c. 10 N. B.R. 
 49 ; Willis v. Gattman, 53 Miss. 721 ; Pashby v. Mandrigo, 42 Mich. 172; 
 Matson v. Melchor, 42 Mich. 477 ; Donnebaum v. Tinsley, 54 Tex. 362 ; 
 Spaulding v. Blythe, 73 Ind. 93 ; Dannan v. Coleman, 8 Mo. Ap. 594 ; 
 Van Bibber v. Mathes, 52 Tex. 406 ; Gost v. Heidelberg, 2 Lea. 627 ; Cole 
 v. Tyler, 65 N. Y. 73 ; Welcker v. Price, 2 Lea. 666 ; Primrose v. Brown- 
 ing, 59 Geo. 69 ; Stevers v. Home, 62 Mo. 473 ; Chambers v. Sallie, 29 
 Ark. 407 ; McConnell v. Martin, 52 Ind. 454 ; Doak v. Rungan, 33 Mich. 
 75 ; Russell v. Thatcher, 2 Del. Ch. 320 ; Allen v. Walt, 9 Heisk. 242 ; 
 McAnally v. O'Neal, 56 Ala. 299 ; Russell v. Fanning, 2 Bradw. 632 ; 
 Fellows v. Smith, 40 Mich. 689 ; Nulton v. Isaacs, 30 Gratt. 726 ; Hunter 
 v. Hunter, 10 W. Va. 321 ; vide Clements v. Eccles, 11 Ir. Eq. 229 ; Bond 
 v. Swearingen, 1 Ohio, 182 ; Gale v. Williamson, 8 M. & W. 405, 
 
 2 Taylor v. Coenen, L. R. 1 Ch. Div. 636 ; vide Hamburger v. Peter, 8 
 Oregon, 181. 
 
282 VOLUNTARY CONVEYANCES. 
 
 Gift that Leaves Donor Insolvent. — A conveyance 
 which leaves the grantor insolvent stands on the same 
 footing as a gift by a person who is insolvent at the time 
 of making it. 1 If, for instance, a person having £10,000, 
 and owing that amount, gives away £5000, 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. 2 A transfer of all the donor's property 
 is for this reason fraudulent. 3 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. 4 
 
 Debtor need not be Insolvent. — It is not necessary, 
 however, that insolvency should either be proved or pre- 
 sumed in order to render a voluntary conveyance void. 5 
 If the indebtedness is so large that the effect of the trans- 
 
 1 Shears v. Eogers, 3 B. & A. 362 ; Smith v. Cherrill, L. R. 4 Eq. 390 ; 
 16 L. T. (N. S.) 517 ; Jackson v. Bouley, Car. & M. 97 ; Freeman v. 
 Burnham, 36 Conn. 469 ; Coates v. Gerlach, 44 Penn. 43 ; Amnion's 
 Appeal, 63 Penn. 284 ; Clayton v. Brown, 30 Geo. 490 ; Stewart v. 
 Rogers, 25 Iowa, 395 ; Kaehler v. Diblee, 32 Wis. 19. 
 
 4 French v. French, 6 De G. M. & G. 95 ; s. c. 25 L. J. Ch. 612 ; 
 Taylor v. Heriot, 4 Dessau. 227 ; Chambers v. Spencer, 5 Watts, 404. 
 
 8 Harlan v. Barnes, 5 Dana, 219 . 
 
 4 Porche v. Moore, 14 La. An. 241. 
 
 6 Parrish v. Murphree, 13 How. 92 ; Thompson v. Webster, 7 Jur. 
 (N. S.) 531 ; s. o. 4 Drew, 628 ; 9 W. R. 641 ; 4 De G. & J. 600 ; 4 L. T. 
 (N. S.) 750 ; Jones v. Slubey, 5 H. & J. 372 ; Jacks v. Tunno, 3 Dessau. 
 1 ; Parkman v. Welch, 36 Mass. 231 ; Simpson v. Graves, 1 Riley Ch. 219, 
 232 ; Swartz v. Hazlett, 8 Cal. 118 ; Dennison v. Tatersall, 18 L. T. 
 (2ST. S.) 303 ; Townsend v. Westacott, 2 Beav. 340 ; s. C. 9 L. J. Ch. 241 ; 
 4 Beav. 58 ; Potter v. McDowell, 31 Mo. 62 ; Richardson v. Smallwood, 
 Jac. 552 ; Wilson v. Buchanan, 7 Gratt. 334 ; Worthington v. Bullitt, 6 
 Md. 172 ; s. c. 3 Md. Ch. 99 ; Blake v. Sawin, 92 Mass. 340 ; vide Lush v. 
 Wilkinsoc 5 Ves. 384; N/orcutt v. Dodd, 1 Cr. & Ph. 100; Martyn v. 
 M'Namara, 4 Dr. & War. 411. 
 
VOLUNTARY CONVEYANCES. 283 
 
 fer is to defraud creditors, the conveyance is void. 1 If 
 insolvency therefore takes place shortly after the making 
 of the conveyance, that is enough. 2 Solvency is generally 
 to be judged of by the event. If the debtor continues em- 
 barrassed, 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. 3 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 reckoned on at the time of the conveyance. 4 
 Insolvency at the time of the rendition of a judgment 
 always raises a presumption of insolvency at the time of 
 the gift. 5 
 
 Proof of Solvency. — If the debts are ultimately 
 paid, 6 or the donor accumulates other property sufficient 
 to meet them when judgments are obtained upon them, 7 
 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 
 
 1 Holmes v. Penney, 3 K. & J. 90 ; Patterson v. McKinney, 97 111. 41 ; 
 Trust Co. v. Sedgwick, 97 TJ. S. 304 ; s. 0. 18 N. B. E. 340. 
 
 2 Crossley v. Elworthy, L. E. 12 Eq. 158 ; Townsend v. Westacott, 2 
 Beav. 340 ; s. C 9 L. J. Ch. 241 ; 4 Beav. 58 ; Wilson v. Buchanan, 7 
 Gratt. 334 ; Pendleton v. Hughes, 65 Barb. 136. 
 
 a Izzard v. Izzard, 1 Bailey Ch. 228 ; Eichardson v. Ehodus, 14 Eich. 
 95 ; Caston v. Cunningham, 3 Strobh. 59. 
 
 4 Crossley v. Elworthy, L. E. 12 Eq. 158 ; Howard v. Williams, 1 
 Bailey, 575. 
 
 5 Carlisle v. Eich, 8 N. H. 44 ; vide Eagan v. Downing, 55 Ind. 65. 
 
 6 Davis v. Herrick, 37 Me. 397 ; Smith v. Eeavis, 7 Ired. 341 ; Kerri- 
 gan v. Eautigan, 43 Conn. 17. 
 
 1 Smith v. Eeavis, 7 Ired. 341. 
 
284 VOLUNTARY CONVEYANCES. 
 
 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 property con- 
 veyed, were abundantly ample to satisfy all his creditr 
 ore. 1 The inquiry is limited to the circumstances of the 
 donor at the time of the conveyance. 2 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. 8 
 Liabilities, 4 demands arising from a tort, 6 judgments ren- 
 dered in another State, 6 and secured debts, 7 must be taken 
 into consideration. Debts which are secured by the prom- 
 ise of a co-partner, who subsequently pays them, 8 and lia- 
 bilities 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, 9 can not be 
 taken into account. Notes and accounts belonging to the 
 donor are to be estimated according to their value. 10 Land 
 which may be exempted should be included in the esti- 
 mate, unless there is evidence of an intention on the part 
 of the donor to claim the exemption. 11 The price bid at a 
 
 1 Jones v. Taylor, 2 Atk. 600. 
 
 8 King v. Thompson, 9 Pet. 204 ; Posten v. Posten, 4 Whart. 27. 
 
 8 Birely v. Staley, 5 G. & J. 432. 
 
 4 Hamet v. Dundass, 4 Penn. 175 ; Manhattan Go. v. Osgood, 15 
 Johns. 162; s. c. 3 Cow. 612 ; Trimble v. Ratcliff, 9 B. Mon. 511 ; s. c. 
 12 B. Mon. 32 ; Primrose v. Browning, 59 Geo. 69 ; vide Black v. Sanders, 
 1 Jones (N. C.) 67 ; Houston v. Boyle, 10 Ired. 496. 
 
 6 Crossley v. Elworthy, L. R. 12 Eq. 158. 
 
 6 Clark v. Depew, 25 Penn. 509. 
 
 ' Powell v. Westmoreland, 60 Geo. 572. 
 
 » Hitt v. Ormsbee, 12 111. 166. 
 
 9 King v. Thompson, 9 Pet. 204; vide Van Wyck v. Seward, 18 Wend. 
 375; s. C. 6 Paige, 62; s. c. 1 Edw. 327. 
 
 " Powell v. Westmoreland, 60 Geo. 572. 
 » Westmoreland v. Powell, 59 Geo. 256. 
 
VOLUNTARY CONVEYANCES. 285 
 
 sheriff's sale a long time subsequent is not conclusive evi- 
 dence of the value of the property. 1 
 
 Proof must be Clear. — To rebut the presumption of 
 fraud, the proof must be clear, full and satisfactory. 3 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. 3 
 It is incumbent on the donee to show a case not only with- 
 out taint, but free from suspicion. 4 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. 5 This is to be ascer- 
 tained not merely by taking an account of the grantor's 
 debts and credits and striking a balance between them, 
 but by an examination of the general state of his affairs. 6 
 
 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. 7 
 
 1 Posten v. Posten, 4 Whart. 27 ; Jennings v. Prentice, 39 Mich. 421. 
 
 8 Henderson v. Dodd, 1 Bailey Ch. 138; Miller v. Wilson, 15 Ohio, 
 108 ; Young v. White, 25 Miss. 146. 
 
 3 Worthington v. Bullitt, 6 Md. 172 ; s. C. 3 Md. Ch. 99 ; Williams v. 
 Banks, 11 Md. 198 ; s. c. 19 Md. 22; Seward v. Jackson, 8 Cow. 406 ; 
 s. c. 5 Cow. 67; Henderson v. Dodd, 1 Bailey Ch. 138; Howard v. 
 Williams, 1 Bailey, 575 ; Swartz v. Hazlett, 8 Cal. 118 ; Eichardson v. 
 Smallwood, Jac. 552; Patten v. Casey, 57 Mo. 118. 
 
 4 HopMrk v. Randolph, 2 Brock. 132. 
 
 'Parish v. Murphree, 13 How. 92. 
 
 8 Shears v. Rogers, 3 B. & A. 362 ; Hunters v. Waite, 3 Gratt. 26. 
 Blakeney v. Kirkeley, 2 Nev. & M. 544 ; Maddenjv. Bay, 1 Bailey, 
 337, 587 ; Howard v. Williams, 1 Bailey, 575 ; McClenachan's Case, 2 
 Teates, 502. 
 
286 VOLUNTARY CONVEYANCES. 
 
 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 un- 
 availing, the conveyance is void, 1 for a solvency which the 
 law can not employ in the payment of the debts of an 
 unwilling debtor is not distinguishable by any valuable 
 difference from insolvency. 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. 2 
 The probable necessary and reasonable demands for the 
 support of the donor and his family must therefore be 
 taken into account and deducted. 3 The nature of his 
 business, the society in which he lives, and his necessary 
 expenses must be taken into consideration. The economy 
 of country life does not furnish a measure or standard for 
 city transactions, where fashion or luxury, or the neces- 
 sities of an extensive business, require the command of 
 abundant resources.* 
 
 Hazards of Business. — The question of solvency, 
 moreover, depends not upon the nominal value of un- 
 salable goods, but upon whether enough can be realized 
 from the property to pay his liabilities. 5 Whether creditors 
 can make their debts, if they try to enforce their collec- 
 tion by judicial process, is a surer test than the opinion of 
 
 1 Potter v. McDowell, 31 Mo. 62 ; Dannan v. Coleman, 8 Mo. Ap. 594. 
 
 2 Eddy v. Baldwin, 32 Mo. 369. 
 
 8 Meyer v. Mohr, 19 Abb. Pr. 299 ; Emerson v. Bemis, 69 111. 537. 
 * Sedgwick v. Place, 10 N. B. R. 28 ; s. c. 5 N. B. R. 168 ; s. c. 5 Ben. 
 184. 
 
 6 Parrish v. Murphree, 13 How. 92 ; Paulk v. Cooke, 39 Conn. 566. 
 
VOLUNTARY CONVEYANCES. 287 
 
 indifferent persons. 1 Although the property reserved is 
 equal in nominal value to the donor's existing indebted- 
 ness, 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. 2 A scanty provision for the 
 payment of debts will not, for this reason, render the con- 
 veyance valid. 3 Property worth $7250 has been deemed 
 insufficient to meet debts amounting to $6848, 4 and prop- 
 erty worth $48,000 has been held not to be ample to meet 
 debts to the amount of $42,000. 5 The mere production of 
 deeds of conveyance, unaccompanied by any proof of the 
 existence of the property conveyed, and the title of the 
 grantor thereto, or his possession thereof, or the possession 
 thereof by the grantee, is wholly insufficient to establish 
 the solvency of the donor. 6 
 
 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 
 
 1 Kehr v. Smith, 20 Wall. 31 ; s. c. 7 N. B. R. 97 ; s. c. 10 K B. E. 
 49 ; S. C. 2 Dill. 50 ; vide Hardy v. Mitchell, 67 Ind. 485. 
 
 * Churchill v. Wells, 7 Cold. 364 ; Parrish v. Murphree, 13 How. 92 ; 
 Paulk v. Cooke, 39 Conn. 566. 
 
 8 Salmon v. Bennett, 1 Conn. 525 ; Paulk v. Cooke, 39 Conn. 566 ; 
 Kehr v. Smith, 20 Wall 31 ; s. O. 2 Dill. 50 ; S. c. 7 N. B. R. 97 ; s. c. 10 
 K. B. R. 49 ; Beecher v. Clark, 10 N. B. R. 385 ; S. o. 12 Blatch. 256 ; 
 Phipps v. Sedgwick, 95 TJ. S. 3; s. o. 12 Blatch. 163; s. O. 5 Ben. 184; 
 S. C. 5 N. B. R. 168 ; S. O. 10 N. B. R. 28. 
 
 4 Black v. Sanders, 1 Jones (N. C.) 67. 
 
 6 Crumbaugh v. Kugler, 2 Ohio St. 373 ; Miller v. Wilson, 15 Ohio, 108. 
 
 «Birely v. Staley, 5 G. & J. 432. 
 19 . - 
 
288 VOLUNTARY CONVEYANCES. 
 
 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. 1 The property must be so circumstanced that 
 neither delay nor difficulty, nor expense, need be en- 
 countered 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. 2 If 
 the remaining property is heavily incumbered, 3 or consists 
 of a reversion after the life-estate of an infant, 4 or of the 
 life-estate of a person advanced in years, 3 or in feeble 
 health, 6 or of property that can not be taken on execution, 7 
 or of property which is in its nature very unstable and 
 can not be easily traced, 8 or of depreciating commercial 
 paper, 9 or of the remnants of a stock of merchandise which 
 diminishes each day in value, 10 it is not sufficient. The 
 property must also be in the State where the donor 
 resides. If it is in some other country where creditors 
 can not reach it, the gift may be set aside. 11 
 
 ' Church v. Chapin, 35 Vt. 223. 
 
 2 Worthington v. Bullitt, 6 Md. 172 ; s. c. 3 Md. Ch. 99 ; Mohawk 
 Bank v. Atwater, 2 Paige, 54 ; Levering v. Norvell, 9 Baxter, 176. 
 
 s Worthington v. Bullitt, 6 Md. 172 ; s. c. 3 Md. Ch. 99 ; Hunters v. 
 Waite, 3 G-ratt. 26 ; Wooten v. Osborn, 77, Ind. 513. 
 
 4 Edmunds v. Mister, 58 Miss. 765. 
 
 R Williams v. Banks, "ll Md. 198 ; S. c. 19 Md. 22. 
 
 6 Strong v. Strong, 18 Beav. 408. 
 
 ' Van Wyck v. Seward, 18 Wend. 375 ; s. c. 6 Paige, 62 ; s. o. 1 Edw. 
 327 ; Henderson v. Lloyd, 3 F. & F. 7 ; Hunters v. Waite, 3 Gratt. 26 ; 
 Church v. Chapin, 35 Vt. 223. 8 Blakeney v. Kirkeley, 2 Nev. & M. 544. 
 
 9 McClenachan's Case, 2 Yeates, 502. 
 
 "Paulk v. Cooke, 39 Conn. 566. 
 
 11 Heath v. Page, 63 Penn. 280 ; Thompson v. Webster, 7 Jur. (N. S.) 
 531 ; s. c. 9 W. R. 641 ; s. o. 4 De G. & J. 600 ; s. c. 4 Drew, 628 ; s. c. 
 
voluntary conveyances. 289 
 
 Difference between that Given and that Reserved. 
 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 difficult, and the property 
 at all events less readily and conveniently accessible, the 
 conveyance of necessity operates to hinder and delay cred- 
 itors in the collection of their debts. 1 When the donor's 
 assets, however, consist 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 bona 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. 2 When the property is not conveniently 
 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 property left, in 
 some form or another, to satisfy all his debts. 3 If he fraud- 
 ulently conceals his property to avoid the payment of his 
 debts he is deemed to be insolvent, although his property 
 consists of money in his pocket and is sufficient to pay all 
 his debts. 4 
 
 4 L. T. (N. S.) 750 ; French v. French, 6 De G. M. & G. 95 ; s. o. 25 L. 
 J. Ch. 612 ; Church v. Chapin, 35 Yt. 223'; Baker v. Lyman, 53 Geo. 
 339 ; El well v. Walker, 52 Iowa, 158. 
 
 1 Worthington v. Bullitt, 6 Md. 172 ; s. c. 3 Md. Ch. 99 ; Warner v. 
 Dove, 33 Md. 579 ; Blake v. Sawin, 92 Mass. 340 ; Carpenter v. Carpen- 
 ter, 25 N. J.Eq. 194; Cocke v. Oakley, 50 Miss. 628. 
 
 2 Warner v. Dove, 33 Md. 579. 
 
 8 Thompson v. Webster, 7 Jur. (N. S.) 531 ; s. c. 9 W. R. 641 ; s. c. 1 
 De G. & J. 600 ; s. c. 4 Drew, 628 ; s. c. 4 L. T. (N. S.) 750 ; French v. 
 French, 6 De G. M. & G. 95 ; s. c. 25 L. J. Ch. 612. 
 
 4 Blake v. Sawin, 92 Mass. 340. 
 
290 VOLUNTARY CONVEYANCES. 
 
 Solvency determined by Eesult. — The voluntary 
 conveyance must be such as a prudent and just man would 
 make with a proper regard to his condition and circum- 
 stances, and a due consideration of all future events which 
 prudence and integrity can foresee. 1 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, 2 and 
 on the other hand the donor's solvency must not depend 
 upon success in the business in which he is engaged, 3 or 
 the skillful management of his affairs. 4 The risk and 
 hazard of his speculations or of his financial arrangements 
 can not either legally or honestly be thrown upon his 
 creditors. 
 
 Accidents. — The law, however, provides against fraud 
 and the intention to defraud, and not accidents or calam- 
 ities. 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 fore- 
 sight could not guard against, 5 as by losses in trade, 6 or 
 by fire, 7 or by storms. 8 The ordinary fluctuations in 
 
 1 Swartz v. Hazlitt, 8 Cal. 118; Lloyd v. Fulton, 91 U. S. 480. 
 ' 3 Eigleberger v. Kibler, 1 Hill Ch. 113 ; Howard v. Williams, 1 Bailey, 
 575 ; Richardson v. Rhodus, 14 Rich. 95 ; Alston v. Rowles, 13 Fla. 117 ; 
 Ricketts v. McCully, 7 Tenn. 712. 
 
 3 Carpenter v. Roe, 10 N. T. 227 ; Crossley v. Ellworthy, L.R. 12 Eq. 
 158 ; Lloyd v. Fulton, 91 TJ. S. 480. 
 
 4 Bertrand v. Elder, 23 Ark. 494; Young v. White, 25 Miss. 146. 
 
 6 Jacks v. Tunno, 3 Dessau. 1 ; Braokett v. Wait, 4 Vt. 389 ; Cham- 
 bers v. Spencer, 5 Watts, 404; Mateer v. Hissim, 3Penna. 160; Smith v. 
 Yell, 8 Ark. 470 ; Pepper v. Carter, 11 Mo. 540 ; Howard v. Williams, 1 
 Bailey, 575 ; Alston v. Rowles, 13 Fla. 117 ; Buchanan v. McMinch, 3 
 Rich. (N. S.) 498 ; vide O'Daniel v. Crawford, 4 Dev. 197. 
 
 6 Howard v. Williams, 1 Bailey, 575 ; Sherman v. Hogland, 54 Ind. 
 578 ; Baugh v. Boles, 35 Ind. 524. 'Pepper v. Carter, 11 Mo. 540. 
 
 8 Brackett v. Wait, 4 Vt. 389 ; vide Chamberlayne v. Temple, 2 Rand. 
 384. 
 
VOLUNTARY CONVEYANCES. 291 
 
 the value of property, however, occasioned by the con- 
 dition of mercantile affairs, can not be ranked among 
 casualties. These fluctuations are constantly taking place, 
 and men must calculate upon and be prepared for them. 1 
 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. 2 
 
 When Voluntary Conveyance is Valid. — If the 
 debtor after making the conveyance has ample means left 
 to discharge all his pecuniary obligations, the conveyance 
 is valid. 3 If his circumstances are such that he may law- 
 
 1 Izzard v. Izzard, 1 Bailey Ch. 228 ; Wilson v. Buchanan, 7 Gratt. 
 334; Elwell v. Walker, 52 Iowa, 158. In Clements v. Eccles, 11 Ir. Eq. 
 229, a case was put by way of illustration of a loss of the reserved pro- 
 perty by defect of title, and it was intimated 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 De J. G. & S. 
 293 ; s. C. 34 L. J. Ch. 365 ; S. C. 11 Jur. (N. S.) 70 ; L. R. 1 Ch. 520 ; 14 
 L.J. (N.S.) 72 ; Kent v. Riley, L. R. 14 Eq. 191. The case of Spirett v. 
 Willows has been treated as one of actual fraud (vide Freeman v. Pope, 
 L. R. 5 Ch. 538 ; L. R. 9 Eq. 206), 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 bank- 
 ruptcy was suspended for three years on account of unjustifiable extrava- 
 gance. It was a case of sheer improvidence, and not d stinguishable in 
 principle from Hunters v. Waite, and there is not a single case in all the 
 reports that would support a voluntary conveyance under such circum- 
 stances. 
 
 a Hinde's Lessee v. Longworth, 11 Wheat. 199 ; Salmon v. Bennett, 1 
 Conn. 525 ; Jacks v. Tunno, 3 Dessau. 1 ; Bennett v. Bedford Bank, 11 
 Mass. 421 ; Parker v. Proctor, 9 Mass. 390 ; Hamilton v. Greenwood, 1 
 Bay. 173 ; Seward v. Jackson, 8 Cow. 406 ; S. O. 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. O. 1 
 McCord, 227; Jackson v. Post, 15 Wend. 588 ; Jackson v. Town, 4 Cow. 
 
292 VOLUNTARY CONVEYANCES. 
 
 fully make a gift, he may give his property to a stranger, 1 
 
 599; Planck v. Schermerhorn, 3 Barb. Ch. 644; Babcock v. Eckler, 24 
 N. Y. 623 ; Holmes v. Clark, 48 Barb. 237 ; Fulton v. Fulton. 48 Barb. 
 581 ; Mayberry v. Neely, 5 Humph. 337 ; Norton v. Norton, 59 Mass. 524 ; 
 Clayton v. Brown, 17 Geo. 217; Bird v. Boldue, 1 Mo. 701; Cutter v. 
 Griswold, Walk. Ch. 437 ; Brackett v. Wait, 4 Vt. 389 ; Chambers v. 
 Spencer, 5 Watts, 404 ; Brice v. Myers, 5 Ohio, 121 ; Hunters v. Waite, 3 
 Gratt. 26 ; Filley v. Register, 4 Minn. 391 ; Pomeroy v. Bailey, 43 N. H. 
 118 ; Bay v. Cook, 31 111. 336 ; Arnett v. Wanett, 6 Ired. 41 ; Jones v. 
 Young, 1 Dev. & Bat. 352 ; Dodd v. McCraw, 8 Ark. 83 ; Hall y. Edring- 
 ton, 8 B. Mon. 47 ; Lane v. Kingsberry, 11 Mo. 402 ; Trimble v. Ratcliff, 
 9 B. Mon. 511; s. c. 12 B. Mon. 32; Young v. White, 25 Miss. 146; 
 Swartz v. Hazlett, 8 Cal. 118 ; Weed v. Davis, 25 Geo. 684 ; Parrish v. 
 Murphree, 13 How. 92; Wilson v. Buchanan, 7 Gratt. 334; Picquet v. 
 Swan, 4 Mason, 443 ; Grimes v. Russell, 45 Mo. 431 ; Gridley v. Watson, 
 53 111. 186 ; Pike v. Miles, 23 Wis. 164 ; Place v. Rhem, 7 Bush. 585 ; 
 Frank v. Kessler, 30 Ind. 8 ; Worthington v. Shipley, 5 Gill. 449 ; Brown 
 v. Austen, 35 Barb. 341 ; 3. 0. 22 How. Pr. 394 ; Peck v. Brummagim, 31 
 Cal. 440 ; Leavitt v. Leavitt, 47 N. H. 329 ; Duhme v. Young, 3 Bush, 
 343 ; King v. Thompson, 9 Pet. 204 ; Dick v. Hamilton, 1 Deady, 322 ; 
 Wilder v. Brooks, 10 Minn. 50 ; Hinman v. Parkis, 33 Conn. 188 ; Green- 
 field's Estate, 14 Penn. 489 ; Woolson's Appeal, 51 Penn. 452 ; Townsend 
 v. Maynard, 45 Penn. 198 ; Moritz v. Hoffman, 35 111. 553 ; Carson v. 
 Foley, 1 Iowa, 524 ; Whittier v. Prescott, 48 Me. 367 ; Hopkirk v. Ran- 
 dolph, 2 Broek. 132 ; Howard v. Williams, 1 Bailey, 575 ; Skarf v. Soulby, 
 1 H. & Tw. 426 ; S. C. 1 Mc. & G. 364; s. O. 16 Sim. 344; S. C. 19 L. J. 
 Ch. 30 ; Bucklin v. Bucklin, 1 Keyes, 141 ; Borst v. Spelman, 4 N. Y. 284 ; 
 Ellinger v. Crowl, 17 Md. 361 ; Sheppard v. Pratt, 32 Iowa, 296 ; Wilson 
 v. Kohlheim, 46 Miss. 346 ; Brown v. Spivey, 53 Geo. 155 ; Bridgford v. 
 Riddell, 55 111. 261; Kerr v. Hutchins, 36 Tex. 452; Brookbank v. Ken- 
 nard, 41 Ind. 339 ; Kelly v. Campbell, 38 N. Y. (Keyes) 29 ; Baldwin v. 
 Ryan, 3 T. & C. 251 ; Ricketts v. McCully, 7 Tenn. 712 ; Childs v. Con- 
 nor, 38 N. Y. Supr. 471; Guyer v. Figgins, 37 Iowa, 317; Dunlap v. 
 Hawkins, 59 N. Y. 342 ; Smith v. Vodges, 92 U. S. 183 ; 13 N. B. R. 433 ; 
 Elfelt v. Hinch, 5 Oregon, 255 ; White v. Beltis, 9 Heisk. 645 ; Haston v. 
 Castner, 29 N. J. Eq. 536 ; Lloyd v. Fulton, 91 U. S. 480 ; Matthews v. 
 Jordan, 88 111. 602 ; Herring v. Richards, 3 Fed. Rep. 439 ; s. c. 1 Mc- 
 Crary, 570 ; Jones v. Clifton, 101 TJ. S. 225 ; Elwell v. Walker, 52 Iowa, 
 158 ; In re Henry Trough, 8 Phila. 214 ; Merrell v. Johnson, 96 111. 224 ; 
 Wiswell v. Jarvis, 9 Fed. Rep. 84 ; Reich v. Reich, 26 Minn. 97 ; Camp 
 V.Thompson, 25 Minn. 175; Martin v. Lincoln, 4 Lea, 334; White v. 
 Witt, 24 W. R. 727 ; Providence Savings Bank v. Huntington, 10 Fed. 
 Rep. 871. 
 
 1 Holloway v. Millard, 1 Madd. 414 ; Speise v. M'Coy, 6 W. & S. 485. 
 
VOLUNTARY CONVEYANCES. 293 
 
 as well as to those to whom he is bound by ties of kinship 
 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 conveyance valid, for his 
 obligations to his creditors are paramount. When a man's 
 circumstances, however, are such as to enable him to dis- 
 charge both, it is his duty to do so. 1 A man of wealth 
 feels himself bound to advance his children, when they 
 leave him to act for themselves 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 com- 
 mon sense of mankind. 2 A person engaged in hazardous 
 pursuits often regards it also as a 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 selling are peculiarly 
 liable. 3 The statute was not intended to interfere with 
 such transfers or to disturb the ordinary and safe transac- 
 tions in society made in good faith, and which at the time 
 subjected creditors to no hazard. No fraudulent intent, 
 no intent to delay, or in any manner to injure creditors, 
 can be inferred from such conveyances The consequence 
 can not be apprehended from the acts, and therefore the 
 
 : Brice v. Myers, 5 Ohio, 121. 
 2 Hopkirk v. Eandolph, 2 Brock. 132. 
 
 8 Haskell v. Bakewell, 10 B. Mon. 106 ; Bridgford v. Biddell, 55 111. 
 261 ; Barnum v. Farthing, 40 How. Pr. 25. 
 
294 VOLUNTARY CONVEYANCES. 
 
 acts can not be considered as constructively fraudulent. 
 They must be regarded as fair dispositions of property, a 
 fair exercise of the power of ownership, and not within 
 
 the statute. 
 
 Value of the Property. — If the property is of almost 
 infinitesimal value and will not sell for enough to pay the 
 costs on an execution, the conveyance is valid. 1 A gift of 
 such inconsiderable value as to come under the denomina- 
 tion 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 estate. A riding 
 horse, wedding clothes, jewels^an instrument of music, or 
 any other gift which is usual in the particular locality, 
 comes strictly, when made by a man of unquestionable 
 solidity, within that class of donations which are denomi- 
 nated presents. 2 
 
 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 con- 
 sideration, though inadequate, will sustain the transfer in a 
 court of law. 3 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 considera- 
 tion 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 pro- 
 perty, courts of equity will therefore regard the convey- 
 ance to the extent of the difference as voluntary. 4 As 
 
 1 French v. Holmes, 67 Me. 186. 
 8 Hopkirk v. Randolph, 2 Brock. 132. 
 » Jackson v. Peek, 4 Wend. 300. 
 
 4 Worthington v. Bullitt, 6 Md. 172 ; s. c. 3 Md. Oh. 99 ; Matthews v. 
 Feaver, 1 Cox, 278 ; Wright v. Stannard, 2 Brock. 311 ; Corlett v. Rad- 
 
VOLUNTARY CONVEYANCES. 295 
 
 between the vendor and the vendee the courts will not 
 weigh the consideration in golden scales, but the rule is 
 different where creditors are concerned. 1 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 considera- 
 tion, however, must be palpably less than the real value 
 of the property, or what it would bring at public sale in 
 the market, 3 or what it might reasonably be supposed that 
 the vendor would have taken from any other person. 3 
 
 cliffe, 14 Moore P. C. 121 ; Van Wyck v. Seward, 18 Wend. 375 ; s. c. 6 
 Paige, 62 ; 1 Edw. 327 ; Robinson v. Stewart, 10 N. T. 189 ; M'Meekin 
 v. Edmonds, 1 Hill Ch. 288 ; Norton v. Norton, 59 Mass. 524 ; Trimble v. 
 Eatcliffe, 9 B. Mon. 511 ; s. c. 12 B. Mon. 32; Crumbaugh v. Kugler, 2 
 Ohio St. 373 ; Herschfeldt v. George, 6 Mich. 456 ; Church v. Chapin, 35 
 Vt. 223 ; Hopkirk v. Randolph, 2 Brock. 132 ; Abbee v. Newton, 19 Conn. 
 20 ; Allen v. Russell, 78 Ky. 105 ; vide Union Bank v. Toomer, 2 Hill 
 Ch. 27 ; Turaley v. Hooper, 2 Jur. (N. S.) 108. 
 
 1 Matthews v. Feaver, 1 Cox, 278 ; vide Nunn v. 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. S.) 531 ; s. c. 9 W. R. 641 ; 4 De G. & J. 600 ; 4 Drew, 628 ; 4 L. T. 
 (N. S.) 750 ; Blount v. Doughty, 3 Atk. 481 ; Taylor v. Heriot, 4 Dessau. 
 227 ; Copis v. Middleton, 2 Madd. 410 ; Wright v. Stannard, 2 Brock. 311. 
 
 ! Worthington v. Bullitt, 6 Md. 172 ; S. c. 3 Md. Ch. 99. 
 
 8 Black v. Cadwell, 4 Jones (N. C.) 150 ; Arnold v. Bell, 1 Hayw. 
 396 ; McLean v. Weeks, 65 Me. 411. 
 
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 proper, as a consideration 
 and inducement for the marriage, 1 and a contract so made 
 is in contemplation of law founded upon a valuable con- 
 sideration. The indissoluble nature of the marriage con- 
 tract, the alteration which it eiFects 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 important and valuable, and 
 constitute the parties purchasers for a valuable considera- 
 tion. 2 Consequently if a settlement is made in good faith, 
 and without notice of fraud to the parties who take under 
 it, it is unimpeachable by creditors. 3 Both parties must 
 concur in or have cognizance of any intended fraud, in 
 order to render it void. If the settler alone intends a 
 
 1 Hardy v. Green, 12 Beav. 182. 
 
 2 Magniac v. Thompson, 7 Pet. 348 ; s. C. 1 Bald. 344 ; Frazer v. 
 Thompson, 1 Giff. 49 ; s. o. 4 De G. & J. 659. 
 
 3 Magniac v. Thompson, 7 Pet. 348 ; s. c. 1 Bald. 344 ; Partridge v. 
 Gopp, 1 Eden, 163 ; s. c. Ambl. 596 ; Campion v. Cotton, 17 Ves. 264 ; 
 Cadogan v. Kennett, 2 Cowp. 432 ; ex parte McBurnie, 1 De G. M. &■ G. 
 441 ; Andrews v. Jones, 10 Ala. 400 ; Eppes v. Randolph, 2 Cal. 103 ; 
 Coutts v. Greenhow, 2 Munf. 363 ; s. o. 4 H. & M. 485 ; Hazelinton v. 
 Gill, 3 T. R. 620, note ; s. 0. 3 Doug. 415 ; Bunnel v. Witherow, 29 Ind. 
 123 ; Tunno v. Trezevant, 2 Dessau. 264 ; Frank's Appeal, 59 Penn. 1 90 ; 
 Jones' Appeal, 62 Penn. 324 ; Croft v. Arthur, 3 Dessau. 223 ; Bank v. 
 Marchand, T. U. P. Charlt. 247 ; Herring v. Wickham, 29 Gratt. 628. 
 
NUPTIAL SETTLEMENTS. 297 
 
 fraud, and the other party has no notice of it, the settle- 
 ment will be valid. 
 
 Specific 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 wedlock, 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 con- 
 sideration, but is merely for a future contingent advance- 
 ment of the daughter. It is not, in the eye of the law, in 
 consideration of marriage. 1 If, however, there is a specific 
 marriage in contemplation, a mere legal contract, and 
 promise made in good faith, to marry another is a valu- 
 able 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. 3 
 
 Contemporaneous Gift. — A reasonable gift, made con- 
 temporaneously with a marriage, and accompanied with a 
 delivery of possession, has strong claims to be considered 
 as a gift in consideration of the marriage, lor it is not usual 
 to convey property by deed which passes by delivery, nor 
 to use the solemnity of delivery expressly in consideration 
 
 1 Welles v. Cole, 6 Gratt. 645. a Smith v. Allen, 87 Mass. 454. 
 
298 NUPTIAL SETTLEMENTS. 
 
 of marriage, although that may be the real consideration. 1 
 The gift, however, must be contemporaneous with the 
 marriage. 2 A deed made prior to the marriage can not be 
 connected with the marriage articles, when there is no 
 reference in the deed to them. 3 
 
 Statements in Articles. — It is not necessary that the 
 marriage articles should contain an enumeration of the 
 property which is subject to the settlement. 4 , Chattels, 
 stocks, books, plate, jewelry, and merchandise may be 
 settled as well as land. 5 It is deemed contrary to the 
 reason and policy of the law for a man on his marriage to 
 stipulate that all the property which he may acquire 
 during coverture, even to the smallest particular, shall be 
 subject to the settlement, and such a stipulation will not 
 be enforced until the creditors are satisfied. 6 A stipulation 
 that the husband and wife shall take the profits jointly 
 will not render the property liable to his creditors. 7 
 
 To Whom Extends. — The consideration of marriage 
 extends to the wife's children by a former marriage, 8 
 the husband's children by a former marriage, 9 and children 
 
 1 Hopkirk v. Randolph, 2 Brock. 132 ; Toulmin v. Buchanan, 1 Stew. 
 67 ; Andrews v. Jones, 10 Ala. 400. 
 
 2 Hayes v. Jones, 2 Pat. & H. 583 ; vide Toulmin v. Buchanan, 1 
 Stew. 67. 
 
 3 Croft v. Arthur, 3 Dessau. 223. 
 
 4 Jarman v. Woollo'ton, 3 T. R. 618 ; Arundell v. Phipps, 10 Ves. 139 
 6 Campion v. Cotton, 17 Ves. 264 ; Cadogan v. Kennetl, 2 Cowp. 432 
 
 Bank v. Marchand, T. U. P. Charlt. 247. 
 
 6 Ex parte Bollard, L. R. 17 Eq. 115 ; Hardy v. Green, 12 Beav. 182, 
 
 ' Scott v. Gibbon, 5 Munf. 86. 
 
 "Newstead v. Searles, 1 Atk. 265 ; Ithel v. Beane, 1 Ves. Sr. 215 
 Ball v. Bumford, Prec. Ch. 113. 
 
 9 Doe v. Routledge, 2 Cowp. 705 ; vide Bank v. Marchand, T. IT. P 
 Charlt. 247. 
 
NUPTIAL SETTLEMENTS. 299 
 
 of the parties born before the marriage. 1 When the arti- 
 cles go beyond the immediate objects of the marriage and 
 provide for collateral relatives, the settlement as to them, 
 not being supported by the marriage, is purely voluntary. 3 
 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 settle- 
 ment will be valid against the father's creditors. The law 
 is the same in the case of a stranger. 3 
 
 Settlement by Husband. — 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, 4 and the wife's knowledge of his indebtedness will 
 not alone render it void. 6 Such a settlement will be valid 
 although the parties have lived in illicit intercourse for a 
 long time previous to the marriage. 6 It is, however, 
 clearly established , that marriage can not be made the 
 means of committing fraud. If there is an intent to delay 
 or hinder or defraud creditors, and to make the celebration 
 
 > Coutts v. Greenhow, 2 Munf. 363 ; s. c. 4 H. & M. 485. 
 
 » Smith v. Cherrill, L. R. 4 Eq. 390 ; s. C. 16 L. T. (N. S.) 517. 
 
 3 Nairn V. Prowse, 6 Ves. 752. 
 
 * Buhner v. Hunter, L. K. 8 Eq. 46 ; s. C. 38 L. J. Ch. 543 ; s. o. 20 L. 
 T. (N. S.) 492 ; ex parte McBurnie, 1 De G. M. & G. 441 ; Betts v. Union 
 Bank, 1 H. & G. 175. 
 
 5 Campion v. Cotton, 17 Ves. 264; Frazer v. Thompson, 1 Gift*. 49; 
 s. c. 4 De G. & J. 659 ; Richardson v. Horton, 7 Beav. 112 ; Herring r. 
 Wickham, 29 Gratt. 628. 
 
 • Coutts v. Greenhow, 2 Munf. 363 ; s. c. 4 H. & M. 485 ; Herring v. 
 Wickham, 29 Gratt. 628. 
 
300 NUPTIAL SETTLEMENTS. 
 
 of a marriage' a part of a scheme to protect property 
 against the rights of creditors, the consideration of mar- 
 riage can not support the settlement. 1 The question in 
 every case is whether the settlement is a bona fide trans- 
 action or whether it is a trick and contrivance to defeat 
 creditors. 2 
 
 Wife's Participation. — The wife, however, must be 
 connected with the fraud to make the settlement invalid. 3 
 Fraud may be imputed to her either from direct co-opera- 
 tion in the original design at the time of its concoction, or 
 from constructive co-operation by carrying the design into 
 execution after she has received notice of it. The execu- 
 tion 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 partici- 
 pation. 4 Notice of the fraud may be inferred from the facts 
 and circumstances of the settlement. 5 If the amount of 
 property settled is extravagant, or grossly out of propor- 
 tion to the station and circumstances of the husband, this 
 of itself is sufficient notice of the fraud. 6 
 
 1 Colombine v. Penhall, 1 Sm. & Gif. 228 ; ex parte Mayor, Mont. 
 292 ; Bulmer v. Hunter, L. E. 8 Eq. 46 ; s. C. 38 L. J. Ch. 543 ; S. C. 20 
 L. T. (N. S.) 942 ; Galbreath v. Cook, 30 Ark. 417 ; Prewitt v. Wilson, 
 103 U. S. 22 ; S. c. 3 Woods, 631. ' Cadogan v. Kennett, 2 Cowp. 432. 
 
 3 Campion v. Cotton, 17 Yes. 264 ; Bulmer v. Hunter, L. R. 8 Eq. 46; 
 S. O. 38 L. J. Ch. 543 ; s. c. 20 L. T. (N. S.) 942 ; Rivers v. Thayer, 7 
 Rich. Eq. 136; Marshal v. Morris, 16 Geo. 368; Bonser v. Miller, 5 
 Oregon, 110; Herring v. Wickham, 29 Gratt. 628 ; Prewitt. v. Wilson, 
 103 U. S. 22; s. c. 3 Woods, 631; Kevan v. Crawford, L. R. 6 Ch. 
 Div. 29. 
 
 4 MagDiac v. Thompson, 7 Pet. 348; s. c. 1 Bald. 344; Gordon v. 
 Worthley, 48 Iowa, 429. 
 
 6 Colombine v. Penhall, 1 Sm. & Gif. 228 ; Bulmer v. Hunter, L. R. 8 
 Eq. 46 ; s. c. 38 L. J. Ch. 543 ; s. c. 20 L. T. (N. S.) 942. 
 
 6 Ex parte McBurnie, 1 De G. M. & G. 441 ; Croft v. Arthur, 3 Des- 
 sau. 223 ; Herring v. Wickham, 29 Gratt. 628 ; Prewitt v. Wilson, 103 U. 
 S. 22 ; S. c. 3 Woods, 631. 
 
NUPTIAL SETTLEMENTS. 301 
 
 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 misapplication 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. Neither does he receive in turn 
 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 pecu- 
 niary consideration, 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 can 
 not 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 bona fides of the trans- 
 action, an inquiry will be made as to the value of a man's 
 property, the amount of his debts, the general state of his 
 property, and the value of that belonging to his wife; and 
 if the provision is found greatly disproportionate to his 
 means, having regard to all these circumstances, it can not 
 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 
 
302 NUPTIAL SETTLEMENTS. 
 
 under all circumstances and to any extent. The reason- 
 ableness of it may as well be inquired into as the ade- 
 quacy of price in a case of pecuniary consideration. 1 
 If, on such inquiry, it is ascertained that the property 
 settled is comparatively small and not more than is suf- 
 ficient for the comfortable maintenance of the family, the 
 settlement will be valid if the wife is not a participant in 
 the fraud. 3 
 
 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 performance of the 
 articles, bona fide and without fraud, it is simply a dis- 
 charge of a legal obligation, and stands on the same foot 
 ing as a preference to any other creditor. 3 Such a settle- 
 ment may be made on the eve of the rendition of a judg- 
 ment against the husband, but it must be real, and not 
 merely colorable.* 
 
 Not in Conformity with Articles. — A settlement 
 which goes beyond the marriage articles 5 or does not cor- 
 respond with any precision to them 6 is a voluntary settle- 
 
 1 Simpson v. Graves, 1 Riley Ch. 232 ; ex parte McBurnie, 1 De G. M. 
 & G. 441 ; Croft v. Arthur, 3 Dessau. 223 ; Prewitt v. Wilson, 103 U. S. 
 22; s. c. 3 Woods, 631; vide Bank v. Marchand, T. U. P. Charlt. 247 ; 
 Herring v. Wickham, 29 Gratt. 628. 
 
 8 Rivers v. Thayer, 7 Rich. Eq. 136. 
 
 3 Magniac v. Thompson, 7 Pet. 348; s. C. 1 Bald. 344; Lockwood v. 
 Nelson, 16 Ala. 294 ; Brunsden v. Stratton, Prec. Ch. 520 ; Armfield v. 
 Armfield, Freem. Ch. (Miss.) 311 ; Kinnard v. Daniel, 13 B. Mon. 496. 
 
 4 Magniac v. Thompson, 7 Pet. 348 ; s. C. 1 Bald. 344. 
 
 6 Saunders v. Ferrill, 1 Ired. 97 ; Shaw v. Jakeman, 4 East. 206. 
 
 6 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. 206. 
 
NUPTIAL SETTLEMENTS. 303 
 
 ment. When the articles stipulate that the husband 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 associa- 
 tions in life. If he furnishes it extravagantly, or at a use- 
 less and wanton expense, he does not act within the true 
 spirit and meaning of the articles, and commits a fraud on 
 his creditors as to the excess. 1 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 th| time of the marriage. 2 
 
 Parol Ante-nuptial Agreement. — The statute of 
 frauds 3 enacts that no action shall be brought to charge 
 any person upon any agreement made upon consideration 
 of marriage, unless the agreement upon which such action 
 shall be brought, or some memorandum or note 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 consideration of mar- 
 riage constitutes a demand that can not be enforced, be- 
 cause it is within the prohibition of this act, and conse- 
 quently a settlement made in consideration of such an 
 agreement is without any legal consideration and volun- 
 tary. 4 Neither marriage, 5 nor a written acknowledgment 
 
 1 Magniac v. Thompson, 7 Pet. 348 ; S. o. 1 Bald. 344. 
 "Battersbee v. Farrington, I Swanst. 106 ; s. C. 1 Wils. 88 ; Reade v. 
 Livingston, 3 Johns. Ch. 481 ; Simpson v. Graves, 1 Biley Ch. 219. 
 
 3 29 Car. II, c. 3, s. 4. 
 
 4 Dygert v. Kemerschneider, 32 N. Y. 629 ; s. c. 39 Barb. 417 ; Warden 
 v. Jones, 2 De G. & J. 76 ; S. C. 27 L. J. Ch. 190 ; Duudas v. Dutens, 2 
 Cox, 235 ; s. o. 1 Ves. Jr. 196 ; Spurgeon v. Collier, 1 Eden, 55 ; Murphy 
 v. Abraham, 15 Ir. Eq. (N. S.) 371 ; Beade v. Livingston, 3 Johns. Ch. 
 481 ; Smith v. Greer, 3 Humph. 118 ; Eandall v. Morgan, 12 Ves. 67 ; 
 
 20 
 
304 NUPTIAL SETTLEMENTS. 
 
 after marriage, 1 nor a representation at the time of the 
 marriage that a post-nuptial settlement will be valid, 2 can 
 give validity to the settlement when otherwise void, or 
 exempt it from the operation of the statute. Representa- 
 tions which are not inserted in the marriage contract, and 
 to which no reference is made in the settlement, can not 
 be enforced, and will not uphold a subsequent settlement. 3 
 A settlement in consideration of a previous marriage, with- 
 out the recital of any articles, is a voluntary settlement. 4 
 
 In Consideration of Portion. — If »fter marriage a 
 settlement is made by the husband upon his wife in con- 
 sideration of a portion or a sum of money advanced by 
 another person, such settlement will be good and for a 
 valuable consideration. 5 Whether the money is paid 
 before or after the settlement is not material if the settle- 
 ment is made in consideration of the payment or the 
 
 Hayes v. Jones, 2 Pat. & H. 583 ; Andrews v. Jones, 10 Ala. 400 ; Wood 
 v. Savage, 2 Doug. (Mich.) 316 ; s. o. Walk. Ch. 471 ; Borst v. Corey, 16 
 Barb. 136 ; Izzard v. Izzard, 1 Bailey Ch. 228 ; Simpson v. Graves, Riley 
 Ch. 219 ; vide Loeffes v. Lewen, Prec. Ch. 370 ; Hall v. Light, 2 Duvall, 
 358 ; Hussey v. Castle, 41 Cal. 239. 
 
 5 Warden v. Jones, 2 De G. & J. 76 ; s. c. 27 L. J. Ch. 190. 
 
 1 Randall.v. Morgan, 12 Ves. 67 ; Reade v. Livingston, 3 Johns. Ch. 
 481 ; Jones v. Henry, 3 Litt. 427 ; Satterthwaite v. Emley, 4 1ST. J. Eq. 489. 
 
 8 Warden v. Jones, 2 De G. & J. 76 ; s. c. 27 L. J. Ch. 190 ; Simpson 
 v. Graves, 1 Riley Ch.' 219. 
 
 3 Murphy v. Abrahams, 15 Ir. Eq. (N. S.) 371 ; Saunders v. Terrell, 1 
 Ired. 97. 
 
 4 Beaumont v. Thorp, 1 Yes. 27; Reade V.Livingston, 3 Johns. Ch. 
 481 ; Deubell v. Pisher, R. M. Charlt. 36. 
 
 6 Wheeler v. Caryl, Amb. 121 ; Nunn v. Wilsmore, 8 T. R. 521 ; Stile- 
 man v. Ashdown, 2 Atk. 477, 607 ; s. c. Ambl. 13 ; Jones v. Marsh, Cas. 
 temp. Talb. 64; Anon. Prec. Ch. 101 ; Russell v. Hammond, 1 Atk. 14; 
 Ramsden v. Hylton, 2 Ves. Sr. 304 ; Gardner v. Painter, Cas. temp. King, 
 65 ; Brown v. Jones, 1 Atk. 188. 
 
NUPTIAL SETTLEMENTS. 305 
 
 promise to pay. 1 If a father secures the portion which 
 his daughter is entitled to under her mother's marriage 
 settlement upon his own estate, and the portion so secured 
 is subsequently paid to the husband, it is a valuable con- 
 sideration for a settlement. 2 
 
 Deed of Separation. — An agreement between a hus- 
 band and his wife to live separate is not a sufficient con- 
 sideration to support a conveyance from him to her. 3 If a 
 feme covert, however, is entitled, on account of the mis- 
 conduct 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 upheld against creditors. 4 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. 5 A covenant by the 
 trustee to indemnify the husband against any claim for 
 alimony 6 or the debts which the wife may contract after 
 the separation is a valuable consideration for the settle- 
 ment. 7 If the trustee does not execute the deed of sepa- 
 ration, 8 or omits to indemnify the husband against any 
 claim for alimony or the debts of the wife, 9 the settlement 
 is without a valuable consideration to support it. A com- 
 
 1 Brown v. Jones, 1 Atk. 188. 2 Wheeler v. Caryl, Amb. 121. 
 
 "Morgan v. Potter, 24 N. Y. Supr. 403. 
 
 4 Hobbs v. Hull, 1 Cox, 445. 6 Legard v. Johnson, 3 Ves. 352. 
 
 6 Worrall v. Jacob, 3 Mer. 256. 
 
 ' Stephens v. Olive, 2 Brock. 90 ; Worrall v. Jacob, 3 Mer. 256 ; Wells 
 v. Stout, 9 Cal. 479 ; King v. Brewen, 2 Brock. 93 note ; Hargroves v. 
 Meray, 2 Hill Ch. 222. 
 
 8 Legard v. Johnson, 3 Ves. 352 ; Wells v. Stout, 9 Cal. 479. 
 
 9 Cropsey v. McKinney, 30 Barb. 47 ; Fitzer v. Fitzer, 2 Atk. 511 ; 
 Nunn v. Wilsmore, 8 T. E. 521 ; Clough v. Lambert, 10 Sim. 174. 
 
306 NUPTIAL SETTLEMENTS. 
 
 plete condonation immediately after the execution of a 
 deed of separation takes away all consideration therefor 
 and leaves it a voluntary settlement. 1 
 
 Contract between Husband and Wife. — A husband 
 may, either with 2 or without 3 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 subsequent 
 creditors. Such settlements, however, are always watched 
 with considerable jealousy, on account of the relative 
 situation of the parties, and the convenient cover they 
 afford to a debtor to protect his property and impose upon 
 his creditors,* and the payment of a valuable consideration 
 must be made out by proof of the most unquestionable 
 character. 5 
 
 Wife's Property. — Whether the consideration is 
 valuable will depend upon its character. By the common 
 
 'Kehr v. Smith, 20 Wall. 31 ; s. c. 2 Dill. 50 ; s. c. 7 N. B. E. 97 ; 
 s. c. 10 N. B. E. 49. 
 
 2 Bank v. Lee, 13 Pet. 107 ; Arundell v. Phipps, 10 Ves. 139 ; Duffy v. 
 Insurance Co., 8 S. & E. 413. 
 
 s 8chaffnerv. Eeuter, 37 Barb. 44; Wickes v. Clarke, 8 Paige, 161; 
 S. C. 2 Bdw. Ch. 58; Babcock v. Eckler, 24 N. T. 623 ; Stockett v. Holli- 
 day, 9 Md. 480 ; Dygert v. Eemerschneider, 32 1ST. Y. 629 ; s. o. 39 Barb. 
 417 ; Bullard v. Briggs, 24 Mass. 533 ; Bank v. Brown, Eiley Ch. 131 ; 
 s. o. 2 Hill Ch. 558 ; Miller v. Tolleson, Harp. Ch. 145 ; Barron v. Barron, 
 24 Vt. 375 ; Steadman v. Wilbur, 7 E. I. 481 ; Syracuse Chilled Plow Co. 
 v. Wing, 27 N. Y. Supr. 206 ; s. c. 85 N. Y. 421. 
 
 "Blow v. Maynard, 2 Leigh, 29; Alston v. Eowles, 13 Fla. 117; 
 Campbell v. Waters, 12 La. An. 193 ; Bogan v. Finlay, 19 La. An. 94 ; 
 Hoxie v. Price, 31 Wis. 82 ; Booker v. Worrill, 57 Geo. 235 ; Thompson 
 v. Feagin, 60 Geo. 82 ; Dresher vs. Corson, 23 Kans. 313 ; Tomlinson v. 
 Matthews, 98 111. 178. 
 
 6 Alston v. Eowles, 13 Fla. 117 ; Wilson v. Silkman, 97 Penn. 509 ; 
 Monteith v. Bax, 4 Neb. 166 ; Horton v. Dewey, 53 Wis. 410 ; McGinnis 
 v. Curry, 13 W. Va. 29 ; Fisher v. Shelver, 53 Wis. 498 ; Warren v. 
 Eanney, 50 Vt. 653. 
 
NUPTIAL SETTLEMENTS. 307 
 
 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 prop- 
 erty and money, therefore, do not at common law consti- 
 tute a valuable consideration for a promise made by him 
 to her, 1 unless she was allowed by him to retain her 
 separate estate. 2 If her choses m action have been reduced 
 to possession, they belong absolutely to him, and do not 
 constitute a valuable consideration any more than her 
 personal property. 3 
 
 A Wife's Choses in Action. — A chose m 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 m action, 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 obtain- 
 ing possession. Her choses in action, therefore, may be 
 settled upon her, and will also constitute a valuable con- 
 
 1 Harvey v. Alexander, 1 Band. 219 ; Fanners' Bank v. Long, 7 Bush, 
 337 ; Lewis v. Caperton, 8 Gratt. 148 ; Coates v. Gerlach, 44 Penn. 43 ; 
 Lyne v. Bank of Ky., 5 J. Ji Marsh. 545 ; Bank v. Mitchell, 1 Bice Eq. 
 389 ; Beach v. White, Walk Ch. 495 ; Briggs v. Mitchell, 60 Barb. 288 ; 
 Smith v. Duncan, 2 Pitts. L. J. 186 ; Dick v. Hamilton, 1 Deady, 322 ; 
 Alston v. Bowles, 13 Fla. 117 ; Gieker v. Martin, 50 Penn. 138 ; Howe v. 
 Colby, 19 Wis. 583 ; Allen v. Walt, 9 Heisk. 242. 
 
 *Woodworth v. Sweet, 51 N. Y. 8 ; S. C. 44 Barb. 268; Jaycox v. 
 Caldwell, 51 N. Y. 395 ; s. C. 37 How. Pr. 240. 
 
 3 Wylie v. Basil, 4 Md. Ch. 327 ; Whittlesey v. McMahon, 10 Conn. 
 137 ; Pierce v. Thompson, 34 Mass. 391 ; Hurdt v. Courtenay, 4 Met. 
 (Ky.) 139 ; 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 ; 
 Glass v. Parmer, 10 Heisk. 551. 
 
308 NUPTIAL SETTLEMENTS. 
 
 sideration for a contract with her. 1 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. 2 
 
 Right to Settlement. — If her property is only recov- 
 erable in equity, 3 or has come to her during coverture by 
 gift or inheritance, 4 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 
 
 1 Blake v. Jones, 1 Bailey Ch. 141 ; Gallego v. Gallego, 2 Brock. 285 ; 
 Pierce v. Thompson, 34 Mass. 391 ; Athey v. Knotts, 6 B. Mon. 24 ; Gore 
 v. Waters, 2 Bailey, 477 ; Nims r. Bigelow, 45 N. H. 343 ; Wheeler v. 
 Emerson, 44 N. H. 182 ; Beady v. Bragg, 1 Head. 511 ; Gassett v. Grout, 
 45 Mass. 486 ; McCaulay v. Rodes, 7 B. Mon. 462 ; Mechanics' Bank v. 
 Taylor, 2 Cranch C. C. 409 ; Ryan v. Bull, 3 Strobh. Eq. 86 ; Estate of 
 Donnelly, 2 Phila. 51; Barron v. Barron, 24 Vt. 375; Standiford v. 
 Devoe, 21 Ind. 404 ; Stoner v. Commonwealth, 16 Penn. 387 ; Coffin v. 
 Morrill, 22 N. H. 352 ; vide Allen v. Allen, 6 Ired. Eq. 293 ; Dold v. 
 Geiger, 2 Gratt. 98. 
 
 2 Brown v. Jones, 1 Atk. 188 ; Middlecome v. Marlow, 2 Atk. 519 ; 
 Pott v. Todhunter, 2 Coll. 76 ; Gassett v. Grout, 45 Mass. 486 ; Bank v. 
 Brown, Riley Ch. 131 ; s. o. 2 Hill Ch. 558.; Wickes v. Clarke, 8 Paige, 
 161 ; s. C. 2 Edw. Ch. 58 ; Ryan v. Bull, 3 Strobh. Eq. 86 ; Poindexter v. 
 Jeffries, 15 Gratt. 363 ; Kennedy v. Head, 32 Geo. 629 ; vide Robinett's 
 Appeal, 36 Penn. 174. 
 
 8 Wheeler v. Caryl, Amb. 121; Legardv. Johnson, 3 Ves. 352; Moore 
 v. Rycault, Prec. Ch. 22 ; Bank v. Brown, Riley Ch. 131 ; s.c. 2 Hill Ch. 
 558 ; Poindexter v. Jeffries, 15 Gratt. 363 ; Marshall v. McDaniel, 8 B. 
 Mon. 175; Spirett v. Willows, 3 De J. G. & S. 293 ; s. c. 11 Jur. (N. S.) 
 70 ; 34 L. J. Ch. 365 ; L. R. 1 Ch. 520 ; 14 L. T. (N. S.) 72 ; Barnard v. 
 Ford, L. R. 4 Ch. 247; Bridgford v. Riddle, 55 111. 261. 
 
 * Wickes v. Clarke, 8 Paige, 161 ; s. c. 3 Edw. Ch. 58 ; Hinton v. Scott, 
 Moseley, 336 ; Smith v. Greer, 3 Humph. 118 ; Bank v. Brown, Riley Ch. 
 131 ; s. c. 2 Hill Ch. 558 ; McCauley v. Rodes, 7 B. Mon. 462. 
 
NUPTIAL SETTLEMENTS. 309 
 
 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 compel 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. 1 If it is reasonable at the time it is made, 
 it will not be impaired by subsequent acquisitions. 2 
 
 Wife's Separate Estate. — Her land 3 or separate 
 estate 4 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 
 in a transfer of the residue to a trustee for her benefit. 5 
 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. 6 If 
 her husband converts her separate property to his own 
 
 1 Poindexter v. Jeffries, 15 Gratt. 363. 
 
 3 Marshall v. McDaniel, 8 B. Mon. 175. 
 
 8 College v. Powell, 12 Gratt. 372 ; Clerk v. Nettlestrip, 2 Levinz, 
 148 ; Latimer v. Glenn, 2 Bush, 535 ; Wilson v. Ayer, 7 Me. 207 ; Duffy 
 v. Insurance Co., 8 S. & R. 413 ; Barnett v. Goings, 8 Blackf. 284 ; 
 Peiffer v. Lytle, 58 Penn. 386 ; Lee v. Hollister, 5 Fed. Rep. 750. 
 
 1 Savage v. O'Neil, 44 N. T. 298 ; Stockett v. Holliday, 9 Md. 480 ; 
 Bank v. Lee, 13 Pet. 107 ; Cottle v. Tripp, 2 Vern. 220 ; Taylor v. 
 Heriott, 4 Dessau. 227 ; Ward v. Shallett, 2 Ves. Sr. 16 ; Bank v. Brown, 
 Riley Ch. 131 ; s. c. 2 Hill Ch. 558 ; Acraman v. Corbett, 1 J. & H. 410; 
 Butler v. Ricketts, 11 Iowa, 107 ; Woodworth v. Sweet, 44 Barb. 268 ; s. 
 c. 51 N. Y. 8 ; Kendrick v. Taylor, 27 Ark. 695 ; Lormore v. Campbell, 60 
 Barb. 62 ; Butterfield v. Stanton, 44 Miss. 15 ; Sweeney v. Damron, 47 
 111. 450 ; McLaurie v. Partlow, 53 111. 340 ; White v. Sansom, 3 Alk. 410 ; 
 Hussey v. Castle, 41 Cal. 239; Teller v. Bishop, 8 Minn. 226; Monroe 
 v. May, 9 Kans. 466. » Hubbard v. Remick, 10 Me. 140. 
 
 6 Barncord v. Kuhn, 36 Penn. 383. 
 
310 NUPTIAL SETTLEMENTS. 
 
 use without her consent, this will be a good consideration 
 for a transfer by him. 1 So, also, in case he purchases 
 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. 2 
 
 Joining in Settlement. — If a settlement can not be 
 made without her aid, her joining in it will constitute a 
 good consideration for a settlement in her favor. 3 
 
 Contingent Right of Dower. — The relinquishment of 
 a homestead right, 4 or the release of a contingent right of 
 dower, is a valuable consideration. 5 A release without 
 any promise, 6 or upon a mere expectation 7 of a recompense, 
 or a mere promise to release, 8 is not a valuable considera- 
 tion ; but if the relinquishment is made on the faith of a 
 promise, the transfer may be subsequent. 9 
 
 1 Wiley v. Gray, 36 Miss. 510. 2 Wilson v. Sheppard, 28 Ala. 623. 
 
 3 Harman v. Richards, 10 Hare, 81; Acraman v. Corbett, 1 J. & H. 
 410 ; Russell v. Hammond, 1 Atk. 14. 
 
 4 Gwyer v. Figgins, 37 Iowa, 317. 
 
 5 Marshall v. Hutchinson, 5 B. Mon. 298 ; Jones v. Boulter, 1 Cox, 288 ; 
 TJnger v. Price, 9 Md. 552.; Ellinger v. Crowl, 17 Md. 361 ; Wright v. 
 Stannard, 2 Brock. 311 ; Bullard v. Briggs, 24 Mass. 533 ; Quarles v. Lacy, 
 4 Munf. 251 ; Harrison v. Carroll, 11 Leigh, 476 ; Bank v. Brown, Riley 
 Ch. 131 ; s. c. 2 Hill Ch. 558 ; Harvey v. Alexander, 1 Rand. 219 ; College 
 v. Powell, 12 Gratt. 372 ; Hollowell v. Simonson, 21 Ind. 398 ; Cottle v. 
 Tripp, 2 Vern. 220 ; Ward v. Crotty, 4 Met. (Ky.) 59 ; Low v. Carter, 21 
 N. H. 433 ; Nims v. Bigelow, 45 N. H. 343 ; Dick v. Hamilton, 1 Deady, 
 322 ; Hoot v. Sorrell, 11 Ala. 386 ; Motley v. Sawyer, 38 Me. 68 ; Patrick 
 v. Patrick, 77 111. 555 ; Singree v. Welch, 32 Ohio St. 320; Reiff v. Eshle- 
 man, 52 Md. 582 ; Prewitt v. Wilson, 103 U. S. 22 ; s. c. 3 Woods, 631. 
 
 " Woodson v. Pool, 19 Mo. 340 ; Taylor v. Moore, 2 Rand. 563. 
 "■ Lewis v. Caperton, 8 Gratt. 148. 
 
 8 Harrison v. Carroll, 11 Leigh, 476. 
 
 9 College v. Powell, 12 Gratt. 372 ; Brown v. Rawlings, 72 Ind. 505. 
 
NUPTIAL SETTLEMENTS. 311 
 
 Not without Contract. — An estate previously re- 
 ceived by the husband in the right of his wife is not a 
 good consideration for a subsequent conveyance to her. 1 
 Even the appropriation of her separate estate with her 
 knowledge and consent will not constitute a good con- 
 sideration, unless there is an agreement by him to repay 
 the money so appropriated; 2 for she is not allowed, as 
 against his creditors, to convert a delivery of property to 
 him, or a receipt of money by him, into a debt, when the 
 delivery or receipt at the time was intended as a gift to 
 assist him in his business or to pay their common ex- 
 penses. From such a delivery or receipt merely the law 
 does not imply a promise on his part to repay or replace, 
 but requires either an express promise or circumstances 
 to prove that in these matters they dealt with each other 
 as debtor and creditor. This is especially true if he has 
 for a long time been allowed to hold himself out to the 
 world as the owner of the property, and contract debts 
 upon the credit of such ownership. 3 But if there is a 
 promise to repay her, that is a sufficient consideration to 
 
 1 Lyne v. Bank of Ky.,.5 J. J. Marsh. 545 ; Hurdt v. Courtenay, 4 Met. 
 (Ky.) 139; Farmers' Bank v. Long, 7 Bush. 337 ; Bridgford v. Biddell, 55 
 111. 261 ; Hill v. Wjnn, 4 W. Va. 453 ; Carpenter v. Carpenter, 25 ST. J. 
 Eq. 194. 
 
 8 Kuhn v. Stansfield, 28 Md. 210 ; Blow v. Maynard, 2 Leigh, 29 ; 
 Wickes v. Clarke, 8 Paige, 161 ; s. c. 3 Edw. Ch. 58 ; Paulk v. Cooke, 39 
 Conn. 566 ; Annin v. Annin, 24 N. J. Eq. 184 ; Clark v. Bosenkrans, 31 
 N. J. Eq. 665 ; Luers v. Brunges, 34 N. J. Eq. 19, 561 ; Humes v. Scruggs, 
 94 U. S. 22 ; Patton v. Gates, 67 111. 174 ; Odell v. Flood, 8 Ben. 543 ; 
 Monteith r. Bax, 4 Neb. 166 ; Wake v. Griffin, 9 Neb. 47 ; McGinnis v. 
 Curry, 13 W. Va. 29 ; Warren v. Banney, 50 Vt. 653 ; Bussell v. Thatcher, 
 2 Del. Ch. 320. 
 
 3 Besson v. Eveland, 26 N. J. Eq. 468 ; Humes v. Scruggs, 94 U. S. 
 22 ; Patten v. Gates, 67 111. 174 ; Hockett v. Bailey, 86 111. 74 ; Odell v. 
 Flood, 8 Ben. 543 ; Russell v. Thatcher, 2 Del. Ch. 320. 
 
312 NUPTIAL SETTLEMENTS. 
 
 support a subsequent conveyance. 1 An express promise, 
 however, is not indispensable. Inferential proof is not to 
 be rejected upon sucb a subject more than upon any other, 
 although what are proper inferences may be modified or 
 altered by the relation of the parties. The amounts re- 
 ceived, the times when, the occasions, the application of 
 the amounts, the conduct of the parties at or about the 
 times, their relative condition as to property, the time and 
 circumstances attending the payment or security out of 
 the estate of the husband, and the relative value of what 
 has been received and paid, especially if paid by a convey- 
 ance of the husband's property, are all proper sources of 
 inferences upon such a question, as they would be upon a 
 similar question between other parties. 2 Nor is it neces- 
 sary that there shall be a promise at the time of each 
 delivery or receipt of her separate estate. A promise 
 made before such transactions, and looking forward to and 
 covering them, will avail as well to prove' the character 
 of them, as it would between other parties who are deal- 
 ing with each other on credit and m confidence. 3 
 
 How far Valid. — When a settlement is valid, the 
 increase 4 and property purchased with the proceeds of 
 the estate settled are within its protection. 5 . A defective 
 
 1 Syracuse Chilled Plow Co. v. Wing, 83 N. Y. 421; s. c. 27 N. Y. 
 Supr. 206 ; Brookville Nat'l Bank v. Trimble, 76 Ind. 195 ; Van Kleeck 
 v. Miller, 19 N. B. R. 484. 
 
 s Steadman v. Wilbur, 7 R. I. 481 ; Gicker v. Martin, 50 Penn. 138. 
 
 3 Steadman v. Wilbur, 7 E. I. 481. 
 
 4 Hazelinton v. Gill, 3 T. R. 620, note ; s. c. 3 Doug. 415 ; Hoot v. 
 Sorrell, 11 Ala. 386. 
 
 6 Jarman v. Woolloton, 3 T. R. 618 ; Blanchard v. Ingersoll, '4 Dall. 
 305; Wieman v. Anderson, 42 Penn. 311; Conrad v. Shomo, 44 Penn. 
 193 ; Brown v. Pendleton, 60 Penn. 419 ; Yardley v. Raub, 5 Whart. 117. 
 
NUPTIAL SETTLEMENTS 313 
 
 settlement, which is otherwise valid, is good in equity 
 against the creditors. 1 
 
 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. 2 
 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 purchased 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 the presumption 
 is that her husband furnished the means of payment. 
 This rule applies to purchases of real as well as personal 
 estate, 3 especially if the husband makes the purchase. 4 
 
 1 Brown v. Jones, 1 Atk. 188. 
 
 * Primrose v. Browning, 59 Geo. 69 ; Eeley v. Faith, 4 Bradw. 275. 
 
 8 Winter v. Walter, 37 Penn. 155 ; Gamber v. Gamber, 18 Penn. 363 ; 
 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. Cape- 
 well, 45 Penn. 89 ; Gault v. Saffln, 44 Penn. 307 ; Rhodes v. Gordon, 38 
 Penn. 277 ; Aurand v. Shaffer, 43 Penn. 363 ; Flick v. Devries, 50 Penn. 
 266 ; Earl v. Champion, 65 Penn. 191 ; Tripner v. Abraham, 47 Penn. 
 220 ; Auble v. Mason, 35 Penn. 261 ; Raines v. Woodward, 4 Rich. Eq. 
 399 ; Mangum v. Finucane, 38 Miss. 354 ; Rose v. Brown, 11 W. Va. 122 ; 
 Hinkle v. Wilson, 53 Md. 287 ; Seitz v. Mitchell, 98 U. S. 580 ; Bisson v. 
 Eveland, 26 N. J. Eq.468; Post v. Stiger, 29 N. J. Eq. 554; Clark v. 
 Rosenkrans, 31 N. J. Eq. 665 ; Stanton v. Kirsch, 6 Wis. 338 ; Horneffer 
 v. Duress, 13 Wis. 603 ; Duress v. Horneffer, 15 Wis. 195 ; vide Stall v. 
 Fulton, 30 N. J. 430. 
 
 4 Conway v. Brown, 5 Tenn. 237. 
 
CHAPTER XIII. 
 
 SUBSEQUENT CREDITORS. 
 
 Rights at Common Law. — In Twyne's Case 1 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, inter- 
 est, debt, or demand, as a sale in open market by covin 
 will not bar a right which is more ancient, and a covinous 
 gift will not defeat an execution in respect to a former 
 debt, but he who hath right, title, interest, debt, or 
 demand more puisne can not avoid a gift or estate pre- 
 cedent by the common law. It will be observed, how- 
 ever, 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 perceive upon 
 what ground they rest. Even at the common law fraud 
 vitiates every transaction into which it enters, and fraud 
 accompanied with damage always gives a right of action. 
 These well-recognized principles are sufficient to protect 
 even subsequent creditors. The better doctrine, there- 
 fore, 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. 2 The 
 principles, however, had not been previously recognized 
 and applied, and the statute thus had the effect of intro- 
 ducing new principles. 
 
 3 Co. 80. 2 Oadogan v. Kennett, 2 Cowp. 432. 
 
SUBSEQUENT CREDITORS. 315 
 
 Within Statute. — The statute embraces not merely 
 conveyances made with intent to delay, hinder or defraud 
 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 tbe statute seem to be so 
 general in order to take in all persons who shall be in any 
 ways hindered. 1 It is accordingly well settled that if a 
 party makes a conveyance of his property with the 
 express intent to become indebted 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. 2 
 
 Kind of Intent. — The intent which will in general 
 make such a transfer void is an actual intent to defraud, 
 and must be proved, 3 and the burden of proof rests 
 
 1 Taylor v. Jones, 2 Atk. 600. 
 
 ! Littleton v. 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, 37 Perm. 433 ; Russell v. Stinson, 3 Heyw. 
 1 ; New Haven Steamboat Co. v. Vanderbilt, 16 Conn. 420 ; Cook v. 
 Johnson, 12 N. J. Eq. 51 ; National Bank v. Sprague, 20 N. J. Eq. 13 ; 
 Barling v. Bishopp, 29 Beav. 417 ; Stileman v. Ashdown, 2 Atk. 477, 
 607 ; s. c. Ambl. 13 ; Murphy v. Abraham, 15 Ir. Eq. (N. S.) 371 ; 
 Miller v. Wilson, 15 Ohio, 108 ; Anon. 1 Wall. Jr. 107 ; Lyman v. 
 Cessford, 15 Iowa, 229 ; Bogard v. Gardley, 12 Miss. 302 ; Williams v. 
 Banks, 11 Md. 198 ; s. 0. 19 Md. 22 ; TJ.. S. v. Steiner, 8 Blatch. 544 ; 
 Hilliard v. Cagle, 46 Miss. 309 ; Candee v. Lord, 2 N. Y. 269 ; McPherson 
 v. Kingsbaker, 22 Kans. 646. 
 
 sReid v. Gray, 37 Penn. 508; Horn v. Boss, 20 Geo. 210; Cole v. 
 Varner, 31 Ala. 244; Lynch v. Raleigh, 3 Ind. 273 ; Nicholas v. Ward, 1 
 Head, 323 ; Blake v. Jones, 1 Bailey Ch. 141 ; Rivers v. Thayer, 7 Rich. 
 Eq. 136 ; Matthai v. Heather, 57 Md. 483. 
 
316 SUBSEQUENT CREDITORS. 
 
 upon the subsequent creditor. 1 It is not necessary, how- 
 ever, to prove such intent by direct and express evidence, 
 for this would be impracticable in many instances where 
 the conveyance ought not to be established. The intent 
 may be collected from the circumstances of the case, and 
 such badges of fraud as the transaction wears. 2 Some of 
 the usual badges are the omission to record the convey- 
 ance, 3 possession of the property and obtaining a false 
 credit thereby, 4 the subsequent erection of improvements, 5 
 the magnitude of the conveyance compared with the 
 grantor's means, 6 the existence of prior debts at the time 
 of the transfer, 7 the concealment 8 of the transfer, the im- 
 
 1 Loeschigk v. Hatfield, 5 Robt. 26 ; s. c. 4 Abb. Pr. (N. S.) 210 ; 51 
 N. Y. 660 ; Nicholas v. Ward, 1 Head, 323. 
 
 ! Hutchinson v. Kelly, 1 Rob. 123 ; Larkin v. McMullin, 49 Penn. 29 
 Thomson v. Dougherty, 12 S. & R. 448 ; Bogard v. Gardley, 12 Miss. 302 
 Wright v. Henderson, 8 Miss. 539 ; Johnston v. Zane, 11 Gratt. 552 
 Carr v. Breese, 25 N. Y. Supr. 134 ; Rose v. Brown, 11 W. Va. 122 
 Lockhard v. Beckley, 10 W. Va. 87. 
 
 8 Lyman v. Cessford, 15 Iowa, 229 ; Naylor v. Baldwin, Rep. Ch. 69 ; 
 Beeckman v. Montgomery, 14 N. J. Eq. 106 ; Case v. Phelps, 39 N. Y. 
 164 ; in re Rainsford, 5 N. B. R. 381 ; Keating v. Keefer, 5 N. B. R. 133 ; 
 s. c. 4 A. L. T. 162 ; Hilliard v. Cagle, 46 Miss. 309 ; Pendleton v. 
 • Hughes, 65 Barb. 136 ; Hawley v. Sackett, 6 N. Y. Supr. 322 ; Sexton v. 
 Wheaton, 8 Wheat. 229 ; Bank v. Patton, 1 Rob. 499 ; Dick v. Hamilton, 
 Deady, 322 ; City Natl Bank v. Hamilton, 34 N. J. Eq. 158 ; Piatt v. 
 Mead, 9 Fed. Rep. 91 ; Crawford v. Logan, 97 111. 396. 
 
 « Pell v. Treadwell, 5 Wend. 661 ; Bradley v. Buford, Ky. Dec. 12 ; 
 Farmers' Bank v. Long, 7 Bush. 337 ; Ayer v. Bartlett, 23 Mass. 71 ; 
 Merrill v. Rinker, 1 Bald. 528 ; Carter v. Grimsbaw, 49 N. H. 100. 
 
 "Tappan v. Butler, 7 Bosw. 480; Dick v. Hamilton, Deady, 322; 
 Hitchcock v. Kiely, 41 Conn. 611 ; Piatt v. Mead, 9 Fed. Rep. 91. 
 
 « Belford v. Crane, 16 N. J. Eq. 265 ; Rivers v. Thayer, 7 Rich. Eq. 136. 
 
 ' Richardson v. Rhodus, 14 Rich. 95 ; Huggins v. Perrine, 30 Ala. 396 ; 
 Redfield v. Buck, 35 Conn. 328 ; Pawley v. Vogel, 42 Mo. 291. 
 
 8 Hungerford v. Earle, 2 Vem. 261 ; Sands v. Hildreth, 2 Johns. Ch. 
 35 ; s. C. 14 Johns. 493 ; Lewkner v. Freeman, 2 Freem. 236 ; s. c. 
 Prec. Ch. 105 ; Eq. Cas. Abr. 149 ; Hilliard v. Cagle, 46 Miss. 309 ; 
 Madden v. Day, 1 Bailey, 337, 587 ; Snyder v. Christ, 39 Penn. 499 ; 
 Mixell v. Lutz, 34 111. 382 ; Roberts v. Gibson, 6 H. & J. 116. 
 
SUBSEQUENT CREDITORS. 317 
 
 mediate engagement in a hazardous business, 1 and the con- 
 tracting of debts immediately after the transfer. 2 
 
 Mere Subsequent Indebtedness. — The simple fact of 
 a subsequent indebtedness is not sufficient to make a trans- 
 fer 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 positive proof or the 
 exhibition of such facts as justify the inference of its actual 
 existence, the conveyance can not be set aside. 3 Even a 
 mere expectation of indebtedness, or an intent to contract 
 debts, if there is only an intent not coupled with a fraud- 
 ulent purpose to convey the property in order to keep it 
 from being reached by creditors, will not render the trans- 
 fer invalid. 4 The mere intent to keep the property from 
 subsequent creditors is hot alone sufficient. No convey- 
 ance can be made which may not in certain contingencies 
 
 'Mullen v. Wilson, 44 Penn. 413 ; Thomson v. Dougherty, 12 S. & 
 E. 448 ; Beeckman v. Montgomery, 14 JT. J. Eq. 106 ; Cramer v. Eeford, 
 17 N. J. Eq. 367 ; Carpenter v. Eoe, 10 N. Y. 227 ; Case v. Phelps, 39 N. 
 T. 164 ; Lyne v. Bank of Ky., 5 J. J. Marsh. 545 ; Mackay v. Douglass, 
 26 L. T. (N. S.) 71 ; s. c. L. E. 14 Eq. 106 ; Hilliard v. Cagle, 46 Miss. 
 309 ; Williams v. Davis, 69 Penn. 21 ; Carpenter v. Carpenter, 25 N. J. 
 Eq. 194 ; Hawley v. Sackett, 6 N. Y. Supr. 322 ; Fisher v. Lewis, 69 Mo. 
 629 ; Burdick v. Gill, 7 Fed. Eep. 668. 
 
 8 Barling v. Bishopp, 29 Beav. 417 ; Case v. Phelps, 39 N. Y. 164 ; 
 Bullitt v. Taylor, 34 Miss.' 708; Lyman v. Cessford, 15 Iowa, 229; 
 Snyder v. Christ, 39 Penn. 499 ; Mason v. Sogers, 1 Eoot, 324 ; Thom- 
 son v. Dougherty, 12 S. & E. 448 ; Herschfeldt v. George, 6 Mich. 456 ; 
 Churchill v. Wells, 7 Cold. 364; Ware v. Gardner, L. E. 7 Eq. 317 ; 17 
 W. E. 439 ; Mackay v. Douglas, 26 L. T. (N. S.) 71 ; s. c. L. E. 14 Eq. 
 106 ; Carter v. Grimshaw, 49 N. H. 100 ; Mellon v. Mulvey, 23 N. J. Eq. 
 198 ; City Nat'l Bank v. Hamilton, 34 N. J. Eq. 158 ; Clark v. Killian, 
 103 TJ. S. 766 ; s. c. 3 MacArthur, 379. 
 
 3 Lyman v. Cessford, 15 Iowa, 229. 
 
 4 Snyder v. Christ, 39 Penn. 499; Williams v. Davis, 69 Penn. 21; 
 Harlan v. Maglaughlin, 90 Penn. 293. 
 
318 SUBSEQUENT CREDITORS. 
 
 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. 1 
 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 debts. It 
 is sufficient if there is an intent to contract debts, and a 
 design to avoid the payment of such debts by the con- 
 veyance. 
 
 Actual Intent. — 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 with- 
 out 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 sub- 
 
 ' Smith v. Tatton, 6 L. R. Ir. 32. 
 
 ' Winchester v. Charter, 94 Mass. 606 ; s. c. 97 Mass. 140 ; s. c. 102 
 Mass. 272. 
 
SUBSEQUENT CREDITORS. 319 
 
 sequent creditor. 1 Such an act will not be relieved of its 
 fraudulent character by the mere fact that the conveyance 
 is placed upon record, if the creditor has no actual notice? 
 and the conveyance without his negligence operates as a 
 surprise upon him. 2 
 
 Not mere Voluntary Conveyance. — A voluntary 
 conveyance made in good faith, and valid against creditors 
 whose debts exist at the time of its execution, is also 
 valid against subsequent creditors. 3 In such a case the 
 
 1 Churchill v. Wells, 7 Cold. 364 ; Beeckman v. Montgomery, 14 N. J. 
 Eq. 106 ; Barling v. Bishopp, 29 Beav. 417 ; Case v. Phelps, 39 N. Y. 
 164; Bullitt v. Taylor, 34 Miss. 708; Mellon v. Mulvey, 23 N. J. Eq. 
 198 ; Woodruff v. Bitter, 26 jST. J. Eq. 86 ; White v. Beltis, 9 Heisk. 645. 
 
 s Churchill v. Wells, 7 Cold. 364; Moore v. Blondheim, 19 Md. 172; 
 Mellon v. Mulvey, 23 N. J. Eq. 198 ; White v. Beltis, 9 Heisk. 645 ; 
 Burdick v. Gill, 7 Fed. Rep. 668 ; Piatt v. Mead, 9 Fed. Rep. 91 ; Lever- 
 ing v. Norvell, 9 Baxter, 176. 
 
 8 Shaw v. Standish, 2 Vern. 226 ; Kipp v. Hanna, 2 Bland, 26; Kid- 
 ney v. Coussmaker, 12 Ves. 136 ; Sagitary v. Hide, 2 Vern. 44 ; Walker 
 v. Burrows, 1 Atk. 93 ; Townsend v. Windham, 2 Ves. Sr. 1 ; Roberts 
 v. Gibson, 6 H. & J. 116 ; Holmes v. Penney, 3 K. & J. 90 ; Mattingly v. 
 !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 Water Co., 13 Cal. 62 ; Whitescarver v. Bonny, 9 Iowa, 480 ; 
 Hamilton v. Thomas, 3 Heyw. 127 ; Hanson v. Power, 8 Dana, 91; Winn 
 v. Barnett, 31 Mies. 653; Johnston v. Zane, 11 Gratt. 552; Smith v. Lit- 
 tlejohn, 2 McCord, 362 ; Pepper v. Carter, 11 Mo. 540 ; Haskell v. Bake- 
 well, 10 B. Mon. 106; Crumbaugh v. Kugler, 2 Ohio St. 373 ; Gugen v. 
 Sampson, 4 F. & F. 974; Abbott v. Hurd, 7 Blackf. 510 ; Anon. 1 Wall. 
 Jr. 107 ; Ingram v. Phillips, 3 Strobh. Ch. 565 ; Holloway v. Millard, 1 
 Madd. 414 ; Wells v. Stout, 9 Cal. 479 ; Niller v. Johnson, 27 Md. 6 ; 
 Charlton v. Gardner, 11 Leigh, 281; Thomas v. DeGraffenreid, 17 Ala. 
 602 ; Cole v. Varner, 31 Ala. 244 ; Waterson v. Wilson, 1 Grant, 74 ; 
 Kid v. Mitchell, 1 JST.' & M. 334 ; Usher v. Hazeltine, 5 Me. 471 ; Stiles v. 
 Lightfoot, 26 Ala. 443 ; Richardson v. Rhodus, 14 Rich. 95 ; Page v. 
 Kendrick, 10 Mich. 300 ; Converse v. Hartley, 31 Conn. 372 ; Benton v. 
 Jones, 8 Conn. 186 ; Hurdt v. Courtenay, 4 Met. (Ky.) 139 ; Lyman v. 
 
 21 
 
320 SUBSEQUENT CREDITORS. 
 
 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 expressed is the true considera- 
 tion. In other words, they 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 
 
 Cessford, 15 Iowa, 229 ; Mixell v. Lutz, 34 111. 382 ; Bohn v. Headley, 7 
 H. & J. 257 ; Eeade v. Livingston, 3 Johns. Ch. 481 ; Bennett v. Bedford 
 Bank, 11 Mass. 421 ; Lyne v. Bank of Kentucky, 5 J. J. Marsh. 545 ; 
 Botts v. Cozine, Hoff. 79 ; Hey v. Niswanger, 1 McCord Ch. 518 ; s. c. 1 
 Harp. Ch. 295 ; Howard v. Williams, 1 Bailey, 575 ; Adams v. Adams, 1 
 Dane Ab. 628, 636 ; Loeschigk v. Hatfield, 5 Robt. 26 ; s. c. 4 Abb. Pr. 
 (N. S.) 210; s. c. 51 N. Y. 660; Wilbur v. Fradenburgh, 52 Barb. 474; 
 Holmes v. Clark, 48 Barb. 237 ; Howe v. Ward, 4 Me. 195 ; Bank v. Pat- 
 ton, 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 v. Kibler, 1 Hill Ch. 113 ; Sexton v. Wheaton, 
 8 Wheat. 229 ; Bank v. Housman, 6 Paige, 526 ; Cosby v. Ross, 3 J. J. 
 Marsh. 290 ; Wiuebrenner v. Weisiger, 3 Mon. 32 ; Smith v. Greer, 3 
 Humph. 118 ; Ridgeway v. Underwood, 4 Wash. C. C. 129 ; Brewster v. 
 Power, 10 Paige, 562 ; Baker v. Gilman, 52 Barb. 26 ; Reed v. Wood- 
 man, 4 Me. 400 ; Miller v. Miller, 23 Me. 22 ; Bangor v. Warren, 34 Me. 
 324 ; Bank v. Ennis, Wright, 605 ; Henderson v. Dodd, 1 Bailey Ch. 138 ; 
 Curtis v. Fox, 47 N. Y. 299 ; Williams v. Davis, 69 Penn. 2] ; Pratt v. 
 Myers, 56 111. 23 ; Goff v. Nuttall, 44 Penn. 78 ; Sanderson v. Streeter, 14 
 Kans. 458; Clark v. Killian, 103 U. S. 766; S. o. 3 MacArthur, 379; 
 Lloyd v. Bunce, 41 Iowa, 660; Smith v. Vodges, 92 U. S. 183; s. c. 13 
 N. B. R. 433 ; Davidson v. Lanier, 51 Ala. 318 ; Spicer v. Ayers, 53 
 How. Pr. 405 ; Seaman v. Wall, 54 How. Pr. 47 ; Evans v. Lewis, 30 
 Ohio St. 11 ; Tuneson v. Chamblin, 88 111. 378 ; Kinghorn v. Wright, 45 
 N. Y. Sup. 615 ; Carr v. Breese, 81 N. Y. 584 ; Crawford v. Logan, 97 111. 
 396 ; Shackleford v. Todhunter, 4 Bradw. 271 ; Lockard v. Nash, 64 Ala. 
 365 ; Brown v. Vandermeulen, 44 Mich. 522 ; Spence v. Dunlap, 6 Lea! 
 457 ; Union Mutual Life Insurance Co. v. Spaids, 99 111. 249 ; Mutual 
 Life Insurance Co. v. Sandfelder, 9 Mo. Ap. 285 ; Jackson v. Myers, 
 101 111. 550 ; vide Witherden v. Jumper, May on Fraud, 519 ; Peterson 
 v. Williamson, 2 Dev. 326. 
 
SUBSEQUENT CREDITORS. 321 
 
 was actually received and paid. The extent and suf- 
 ficiency of the consideration in reference to the value of 
 the property is only material where the grantor is in- 
 debted 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 expressed so as to make a valid 
 deed as against the grantor, it will also be valid against 
 subsequent creditors. 1 
 
 Void against Prior Creditors. — Subsequent creditors 
 may, however, impeach a voluntary conveyance by show- 
 ing antecedent debts sufficient in amount to afford a reason- 
 able evidence of a fraudulent intent. 2 The mere fact that 
 the conveyance is voluntary does not raise a presumption 
 of fraud in their favor, but they must prove the intent to 
 delay, hinder, or defraud creditors. 3 When they, how- 
 ever, show an intent to defraud antecedent creditors, such 
 proof is prima facie evidence of an intent to defraud sub- 
 sequent creditors. 4 The true principle is, that a fraudulent 
 intent against one or more creditors is fraudulent against 
 
 1 Bank of V. S. v. Housman, 6 Paige, 526. 
 
 8 Mead v. Gregg, 12 Barb. 653 ; Richardson v. Rhodus, 14 Rich. 95 ; 
 Huggins v. Perrine, 30 Ala. 396 ; Charlton v. Gardner, 11 Leigh, 281 ; 
 Doyle v. Sleeper, 1 Dana, 531 ; Redfield v. Buck, 35 Conn. 328 ; Pawley 
 v. Vogel, 42 Mo. 291. 
 
 3 Hussey v. Castle, 41 Cal. 239. 
 
 4 Horn v. Volcano Co., 13 Cal. 62; vide Harlan v. Maglaughlin, 90 
 Penn. 293. 
 
322 SUBSEQUENT CREDITORS. 
 
 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 creditor, which can not 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. 1 Mere proof of 
 indebtedness, however, is not conclusive. Whether a vol- 
 untary conveyance is fraudulent as to subsequent creditors 
 is a question that is to be determined from all the circum- 
 stances of the transaction. 2 If the donor is insolvent at 
 the time of the transfer, the conveyance is generally 
 deemed to be void as to subsequent creditors. 3 
 
 Continuous Indebtedness. — The general rule in regard 
 to voluntary 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. 4 The mere fact, however, that the prior debts 
 have been paid off' will not alone render the transaction 
 
 1 Hutchinson t. Kelly, 1 Bob. 123 ; Thomson v. Dougherty, 12 S. & R. 
 448. * Payne v. Stanton, 59 Mo. 158. 
 
 * Vertner v. Humphreys, 21 Miss. 130 ; Iley v. Niswanger, 1 McCord 
 Ch. 518 ; s. o. 1 Harp. Ch. 295 ; Carpenter v. Roe, 10 N. Y. 224 ; Madden 
 v. Day, 1 Bailey, 337, 587 ; Parrish v. Murphree, 13 How. 92 ; Beach v. 
 White, Walk. Ch. 495 ; Hurdt v. Courtenay, 4 Met. (Ky.) 139 ; Lowry v. 
 Fisher, 2 Bush, 70 ; Ridgeway v. Underwood, 4 Wash. C. C. 129 ; Par- 
 tridge v. Stokes, 42 How. Pr. 381 ; s. c. 66 Barb. 586. 
 
 4 Ingram v. Phillips, 3 Strobh. Ch. 565 ; O'Connor v. Bernard, 2 Jones, 
 654 ; Lyne v. Bank of Ky., 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 v. Fuller, 18 N. H. 360 ; King v. Tharp, 26 Iowa, 283 ; 
 Curtis v. Price, 12 Ves. 89 ; Pell v. Tredwell, 5 Wend. 661 ; Hudnal v. 
 Wilder, 4 McCord, 294 ; s. o. 1 McCord, 227 ; Wilbur v. Fradenburgh, 52 
 Barb. 474; Webb v. Roff, 9 Ohio St. 430; Todd v. Hartley, 2 Met. (Ky.) 
 206 ; Converse v. Hartley, 31 Conn. 372 ; Claflin v. Mess, 30 N". J. Eq. 211. 
 
SUBSEQUENT CREDITORS. 323 
 
 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 contracted others to an equal amount, 1 and is not suffi- 
 cient. Ita demum reoocatw quod fraudandorum credi- 
 torum causa factum, est, si eventum fraus habuit; scilicet 
 si hi creditores quorum fraudandorum causa fecit, bona 
 ipsius vendiderunt, cmterum si illos di/misit quorum fraud- 
 andorum causa fecit, et alios sortitus est, si quidem sim- 
 pliciter dimissis prioribus quos fraudare voluit, alios postea 
 sortitus est, cessat revocatio : si autem horv/m pecunia quos 
 fraudare noluit, priores dvmisit quos fraudare voluit; 
 Marcellus dicit revocationi locum fore. Secundum hanc 
 distinctionem et ah imperatore Severo et Animvmo rescriptum 
 est eoque jure utimwr? Such a continuous 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 adhe- 
 sion to the aggregate mass. 3 In such instances the subse- 
 quent creditors are subrogated to the rights of the creditors 
 whose debts their means have been used to pay. 4 Any 
 
 1 Madden v. Day, 1 Bailey, 337, 587 ; Mills v. Morris, Hoffm. 419 ; 
 Taylor v. Coenen, L. R. 1 Ch. Div. 636 ; Antrim v. Kelly, 4 N. B. R. 587. 
 
 8 Dig. Lib. 42, tit. 9. 3 Brown v. McDonald, 1 Hill Ch. 297. 
 
 4 Richardson v. Smallwood, Jac. 552; s. o. 1 Cond. Ch. 262; Holmes 
 v. Penney, 3 K. & J. 90 ; O'Connor v. Bernard, 2 Jones, 654 ; Mills v. 
 Morris, 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 ; Mad- 
 den v.Day, 1 Bailey, 337, 587; Brown v. M'Donald, 1 Hill Ch. 297; 
 Wilson v. Buchanan, 7 G-ratt. 334 ; Beach v. White, Walk. Ch. 495 ; 
 Whittington v. Jennings, 6 Sim. 493 ; Newlin v. Garwood, 1 Whart. Dig. 
 572 ; Caston v. Cunningham, 3 Strobh. 59 ; Paulk v. Cooke, 39 Conn. 566. 
 
324 SUBSEQUENT CREDITORS. 
 
 other rule would simply permit the debtor to take the- 
 property of subsequent creditors and give it to his donee. 
 The doctrine in regard to change of creditors, with a con- 
 tinuation of indebtedness, only applies, however, when the 
 donor is insolvent at the time of the gift. 1 There must be 
 something more than an extensive business whose balances 
 are daily changing sides on his ledger. 2 The proof of 
 prior debts must be specific, 3 and this proof must also be 
 accompanied by evidence of the donor's inability to pay 
 those debts. 4 
 
 Eemedies. — As there is no right without a remedy, 
 it follows from the foregoing principles that subsequent 
 creditors may institute proceedings to set aside a voluntary 
 conveyance. 5 Whenever their rights depend upon the 
 existence of prior debts, they must, however, show that 
 there are such. 6 As a general rule, when a voluntary con- 
 veyance is set aside at the instance of prior creditors, sub- 
 sequent creditors will participate in the fund 7 
 
 1 Anon. 1 Wall. Jr. 107 ; Creed v. Lancaster Bank, 1 Ohio St. 1. 
 
 ? Moritz v. Hoffman, 35 111. 553. 
 
 3 Smith v. Greer, 3 Humph. 118 ; White v. Sansom, 3 Atk. 410. 
 
 4 Loeschigk v. Hatfield, 5 Bobt. 26; S. C. 4 Abb. Pr. (N. S.) 210 ; S. C. 
 51 N. Y. 660; Wilbur v. Fradenburgh, 52 Barb. 474; Hutchinson v. 
 Kelly, 1 Bob. 123 ; Bank v. Patton, 1 Bob. 499. 
 
 6 Thomson v. Dougherty, 12 S. & B. 448 ; Beach v. White, Walk. Ch. 
 495 ; Hurdt v. Courtenay, 4 Met. (Ky.) 139 ; Jenkyn v. Vaughan, 3 Drew, 
 419 ; s. C. 25 L. J. Ch. 338 ; Freeman v. Pope, L. B. 5 Ch. 538 ; s. C. L. B. 
 9 Eq. 206 ; Skarf v. Soulby, 1 Me. & G. 364 ; S. C. 1 H. & Tw. 426 ; s. C. 
 16 Sim. 344 ; s. o. 19 L. J. Ch. 30 ; Pratt v. Curtis, 6 N. B. B. 139 ; Cham- 
 ley v. Dunsany, 2 Sell. & Lef. 689 ; vide Ede v. Knowles, 2 Y. & C. (N. S.) 
 172 ; Tripp v. Vincent, 3 Barb. Ch. 613. 
 
 6 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. 
 
 ' Amnions' Appeal, 63 Penn. 284; Trimble v. Turner, 21 Miss. 348; 
 Beach v. White, Walk. Ch. 495 ; Norton v. Norton, 59 Mass. 524; Botts 
 
SUBSEQUENT CREDITORS. 325 
 
 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 transfer 
 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 
 1 of the conveyance, but upon a theory of equitable title 
 reserved to the grantor by the very terms of the convey- 
 ance, 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 creditors. 1 A con- 
 veyance 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 equi- 
 table owner of property and still have it exempt from 
 his debts. 2 A power of revocation inserted in a 
 
 v. Cozine, Hoffm. 79 ; Churchill v. Wells, 7 Cold. 364 ; Kidney v. Couss- 
 maker, 12 Ves. 136, note ; Iley v. Niswangeri 1 McCord Ch. 518 ; s. c. 
 1 Harp. Ch. 295 ; Hargroves v. Meray, 2 Hill Ch. 222 ; Kipp v. Hanna, 2 
 Bland, 26 ; Thomson v. Dougherty, 12 S. & R. 448 ; Richardson v. Small- 
 wood, Jac. 552 ; s. c. 1 Cond. Ch. 262 ; St. Armand v. Barbara, Comyn. 
 255 ; O'Connor v. Bernard, 2 Jones, 654 ; Kehr v. Smith, 20 Wall. 31 ; 
 S. C. 2 Dill. 50 ; S. C. 7 N. B. R. 97 ; S. C. 10 N. B. R. 49. Contra, Wil- 
 liams v. Banks, 11 Md. 198 ; s. C. 19 Md. 22 ; Ward v. Hollins, 14 Md. 
 158; vide Converse v. Hartley, 31 Conn. 372 ; Todd v. Hartley, 2 Met. 
 (Ky.) 206. ' Curtis v. Leavitt, 15 N. Y. 9 ; s. 0. 17 Barb. 309. 
 
 ' Mackason's Appeal, 42 Penn. 330 ; Brinton v. Hook, 3 Md. Ch. 477 ; 
 Ford v. Caldwell, 3 Hill (S. C.) 248 ; Coolidge v. Melvin, 42 N". H. 510 ; 
 Hunters v. Waite, 3 Gratt. 26 ; Watts v. Thomas, 2 P. Wms. 364 ; Casey's 
 Trusts, 4 Ir. Ch. 247 ; In re Pearson, L. R. 3 Ch. Div. 807. 
 
326 SUBSEQUENT CREDITORS. 
 
 deed will not render the property liable to subsequent 
 creditors. 1 
 
 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 conveyance simply for the benefit of the 
 wife and children of the grantor. The mere fact that the 
 grantor may possibly 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. 2 
 
 Colorable Transfers. — If a conveyance is merely 
 colorable, and a secret trust and confidence exist for the 
 benefit of the grantor, it is void not only against precedent 
 but subsequent creditors, for it is in such a case a continu- 
 ing fraud, and may actually operate as such as well in 
 reference to debts contracted after as before the convey- 
 ance. 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 
 
 1 Jones v. Clifton, 101 U. 8. 225 ; S. c. 18 N. B. R. 125 ; vide Tarback 
 v. Marbury, 2 Vern. 510. 
 
 •Holmes v. Penney, 3K.&J. 90. 
 
SUBSEQUENT CREDITORS. 327 
 
 the property liable to subsequent creditors. 1 A discrimi- 
 nation, 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 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 general, be good against subsequent 
 creditors, for there is no secret trust for the benefit of the 
 vendor. 2 The purpose or effect of a conveyance must, in 
 general, be to injure subsequent creditors in order to 
 render it void as to them. The question is generally one 
 of fact. A conveyance can only be valid as to them when 
 they are not intended or liable to be delayed, hindered, or 
 
 1 Clark v. French, 23 Me. 221 ; Whitmore v. Woodward, 28 Me. 392 ; 
 Damon v. Bryant, 19 Mass. 411 j McLane v.- Johnson, 43 Vt. 48 ; King 
 v. Wilcox, 11 Paige, 589 ; Henry v. Fullerton, 21 Miss. 631 ; Hargroves v. 
 Meray, 2 Hill Ch. 222 ; Marsto'n v. Marston, 54 Me. 476 ; Parkman v. 
 Welch, 36 Mass. 231 ; McConihe v. Sawyer, 12 N. H. 396 ; Ladd v. Wig- 
 gin, 35 N. H. 421; Gove v. Lawrence, 26 N. H. 484; Wadsworth v. 
 Havens, 3 Wend. 411 ; Smith v. Espy, 9 N. J. Eq. 160 ; Flynn v. Wil- 
 liams, 1 Ired. 509 ; s. c. 7 Ired. 32 ; Smith v. Lowell, 6 N. H. 67 ; Smyth 
 v. Carlisle, 16 N. H. 417; s. c. 17 N. H. 417; Dart v. Stewart, 17 Ind. 
 221; Livermore v. Boutelle, 77 Mass. 217; Hook v. Mowre, 17 Iowa, 
 195; Buffing v. Tilton, 12 Ind. 259; Ward v. Enders, 29 111. 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 y. Love, 2 B. Mon. 345 ; Carlton v. King, 
 1 Stew. & Port. 472 ; Williams v. Avery, 38 Ala. 115 ; Pratt v. Cox, 22 
 Gratt. 330; Partridge v. Stokes, 66 Barb. 586; s. c. 44 How. Pr. 381 ; 
 Day v. Cooley, 118 Mass. 524 ; Dewey v. Moyer, 16 N. Y. Supr. 473 ; 
 Jones v. King, 86 111. 225 ; Allaire v. Day, 30 N. J. Eq. 232 ; U. S. v. 
 Griswold, 8 Fed. Bep. 556 ; vide Stone v. Myers, 9 Minn. 303 ; Summers 
 v. Roos, 42 Miss. 749 ; Kane v. Roberts, 40 Md. 590. 
 
 8 Clark v. French, 23 Me. 221 ; O'Connor v. Bernard, 2 Jones, 654 ; 
 Hall v. Sands, 52 Me. 355 ; Lynch v. Raleigh, 3 Ind. 273 ; Upton v. Craig, 
 57 111. 257 ; Sanders v. Chandler, 26 Minn. 273. 
 
328 SUBSEQUENT CREDITORS. 
 
 defrauded by it. 1 If the creditor had notice of the con- 
 veyance at the time the debt was contracted, the convey- 
 ance will be valid as to him. 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. 3 
 
 Representations. — If a creditor contracts a debt upon 
 the faith of a statement made by the grantee that the 
 grantor still retains his interest in the property, he is 
 entitled to be paid out of it.* 
 
 1 Hall v. Sands, 52 Me. 355 ; Keeler v. Ullrich, 32 Mich. 88. 
 
 8 Monroe v. Smith, 79 Penn. 459 ; Baker v. Gilman, 52 Barb. 26 ; 
 Kane v. Boberts, 40 Md. 590 ; Chriaman v. Graham, 51 Tex. 454 ; Kirksey 
 v. Snedecor, 60 Ala. 192 ; Herring v. Richards, 3 Fed. Rep. 439 ; Shep- 
 pard v. Thomas, 24 Kans. 780; Sledge v. Obenchain, 58 Miss. 670. 
 
 3 Clow v. Woods, 5 S. & R. 275 ; Young v. Pate, 4 Yerg. 164; Smith 
 v. Lowell, 6 N. H. 67 ; Paul v. Crooker, 8 1ST. H. 288 ; Woodrow v. Davis, 
 2 B. Mon. 296 ; Rankin v. Holloway, 11 Miss. 614 ; Smith v. McDonald, 
 25 Geo. 377 ; Arrowsmith v. O'Su'livan, 44 N. Y. Sup. 554. 
 
 4 Mowry's Appeal, 94 Penn. 376. 
 
CHAPTER XIV. 
 
 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 Modern Device. — Assignments for the benefit of 
 creditors are for the most part an American device, and 
 are of a comparatively modern origin. 1 It is true that 
 deeds of composition have been used for a long time, but 
 there is a manifest distinction between the two instru- 
 ments. 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 defi- 
 nitions will show an essential distinction between the two 
 transactions. An assignment 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. 2 
 
 1 In Grover v. Wakeman, 11 Wend. 187 ; s. c. 4 Paige. 23 ; 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. B. 594, note, is 
 before that date. 
 
 4 Wiener v. Davis, 18 Penn. 331 ; Grover v. Wakeman, 11 Wend. 187, 
 per Senator Tracy ; Robbins v. Magee, 76 Ind. 381. 
 
330 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 Deeds of Trust. — There is also a distinction between 
 an assignment and a deed of trust in the nature of a mort- 
 gage. The former is an absolute and indefeasible convey- 
 ance of the subject-matter thereof for the purposes ex- 
 pressed therein ; the latter is conditional and defeasible. 
 By the former the grantor parts absolutely with the title, 
 which vests in the trustee unconditionally for the purposes 
 of the trust ; the latter is a conveyance in trust for the 
 purpose of securing a debt with a condition of defeasance. 
 The former is a conveyance to a trustee for the purpose of 
 raising a > fund to pay the debts of creditors generally, or a 
 certain class of creditors ; the latter is a conveyance to 
 secure the payment of a certain debt specified therein. 
 The former conveys the property absolutely to a trustee 
 to be sold for the payment of the debts named in it ; the 
 latter purports to be a security for a debt with power to 
 sell if the debt shall not be paid when due. 1 There is also 
 a distinction between an assignment and a mere deed of 
 trust. The former is executed for the benefit of creditors 
 generally, or of a certaiD class of creditors ; the latter is 
 executed for the benefit of some particular creditor whose 
 debt is specified therein. 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. 2 
 
 Solvent Debtor. — A voluntary deed of trust by a 
 solvent debtor must not, moreover, be confounded with 
 
 1 State v. Benoist, 37 Mo. 500 ; Crow v. Beardsley, 68 Mo. 435 ; 
 Hoffman v. Mackall, 5 Ohio St. 124 ; Stewart v. Kerrison, 3 Rich. (N. S.) 
 266. 
 
 , * State Bank v. Chapelle, 40 Mich. 447 ; Green v. Trieber, 3 Md. 11 ; 
 Fouke v. Fleming, 13 Md. 392. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 331 
 
 an assignment by an insolvent debtor for the benefit of 
 all or particular creditors. 1 It diners 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 because it 
 is the act of a solvent man. Such a deed of trust does 
 not differ materially from a mortgage. 2 When it does not 
 appear from the face of the deed that the grantor owes 
 any debts besides those which he provides for, no infer- 
 ence can arise that it is made with the intent to delay, 
 hinder or defraud creditors, for where there are no credi- 
 tors there can be no intention to defraud them. 3 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 prin- 
 ciples as if the insolvency appeared on its face.* 
 
 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. 5 There are two kinds of assignments, 
 styled respectively general and partial. An assignment 
 which conveys all the property of the debtor is a general 
 assignment. One which conveys only a part of the pro- 
 perty of the debtor is a partial assignment. 6 One of the 
 
 ' Hodge v. Wyatt, 10 Ala. 271 ; Elmes v. Sutherland, 7 Ala. 262 ; 
 Pope v. Wilson, 7 Ala. 690 ; Dubose v. Dubose. 7 Ala. 235 ; Graham v. 
 Lockhart, 8 Ala. 9 ; Frow v. 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. 
 
 8 Pope v. Wilson, 7 Ala. 690. 
 
 4 Hardy v. Skinner, 9 Ired. 191; Hardy v. Simpson, 13 Ired. 132; 
 Green v. Banks, 24 Tex. 508. 6 Manny v. Logan, 27 Mo. 528. 
 
 6 Stetson v. Miller, 36 Ala. 642 ; Mussey v. Noyes, 26 Vt. 462 ; Noyes 
 v. Hickok, 27 Vt. 36 ; Shapleigh v. Baird, 26 Md. 322 ; Manny v. Logan, 
 31 Mo. 91 ; Lampson v. Arnold, 17 Iowa, 479. 
 
332 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 primary and essential elements of an assignment is the 
 transfer of the title and interest of the debtor in the pro- 
 perty assigned. 1 The property must also be conveyed to 
 an assignee, to be held by him in trust for creditors. 2 If 
 either of these essentials is wanting, the transaction is not 
 an assignment for the benefit of creditors. 3 
 
 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 per- 
 sons 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 the conveyance is bona fide 
 or fraudulent. 4 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 
 
 1 Banning v. Sibley, 3 Minn. 389. 
 
 'Peck v. Merrill, 26 Vt. 686 ; Mussey v. Noyes, 26 Vt. 462. 
 
 8 Beans v. Bullitt, 57 Penn. 221. 
 
 4 Halsey v. Whitney, 4 Mason, 206 ; Nicoll v. Mumford, 4 Johns. Ch. 
 522; Houston v. Nowland, 7 G. & J. 480; Cunningham v. Freeborn, 11 
 Wend. 241 ; s. c. 3 Paige, 537 ; s. o. 1 Edw. 256 ; Marbury v. Brooks, 7 
 Wheat. 556 ; S. C. 11 Wheat. 78 ; Pope v. Brandon, 2 Stew. 401 ; Hemp- 
 stead v. Johnson, 18 Ark. 123 ; Layson v. Rowan, 7 Rob. (La.) 1 ; Rein- 
 hard v. Bank of Ky., 6 B. Mon. 252 ; Jones v. Dougherty, 10 Geo. 273 ; 
 Robinson v. Rapelye, 2 Stew. 86 ; Brown v. Minturn, 2 Gall. 557 ; 
 Wheeler v. Sumner, 4 Mason, 183 ; Duvall v. Raisin, 7 Mo. 449 ; Skip- 
 with v. Cunningham, 8 Leigh, 271 ; U. S. Bank v. Huth, 4 B. Mon. 423 ; 
 Repplier v. Buck, 5 B. Mon. 96 ; Hall v. Dennison, 17 Vt. 310. 
 
ASSIGNMENTS FOE THE BENEFIT OF CREDITORS. 333 
 
 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. 1 
 
 Consideration. — A nominal consideration is sufficient 
 
 1 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, 26 Mass. 435 ; Marston v. Coburn, 
 17 Mass. 454 ; Russell v. Woodward, 27 Mass. 408 ; Viall v. Bliss, 26 
 Mass. 13 ; Edwards v. Mitchell, 67 Mass. 239 ; Wiley v. Collins, 11 Me. 
 193 ; Carr v. Dole, 17 Me. 358 ; Leeds v. Sayward, 6 N. H. 83 ; Swan v. 
 Crafts, 124 Mass. 453. With the assent of the creditors an assignment 
 could be made. Stevens v. Bell, 6 Mass. 339 ; Collins v. Wiley, 11 Me. 
 193 ; Boyden v. Moore, 28 Mass. 362. When made without the assent of 
 the creditors, it was valid as to those that did assent subsequently. Hast- 
 ings v. Baldwin, 17 Mass. 552 ; Harris v. Sumner, 19 Mass. 129 ; Foster v. 
 Saco Manuf. Co. ,'29 Mass. 451 ; Lupton v. Cutter, 25 Mass. 298 ; Nostrand 
 v. Atwood, 36 Mass. 281 ; Everett v. Walcott, 32 Mass. 94; Beach v. 
 Viles, 2 Pet. 675 ; Gore v. Glisby, 25 Mass. 555 ; Sadler v. Immel, 15 
 Nev. 265. An attachment was entitled to priority over creditors who 
 subsequently assented. Ward v. Lamson, 23 Mass. 358 ; Bradford v. 
 Tappan, 28 Mass. 76 ; Leeds v. Sayward, 6 N. H. 83 ; Denie v. Hart, 19 
 Mass. 204 ; Copeland v. Weld, 8 Me. 411. The burden of proof was on 
 the assignee to show the existence of the debts, Russell v. Woodward, 27 
 Mass. 408, and that the property was needed to satisfy the demands of 
 those who had assented. Borden v. Sumner, 21 Mass. 265 ; Widgery v. 
 Haskell, 5 Mass. 144. It was not necessary that the assent should be in 
 writing. Wiley v. Collins, 11 Me. 193. An assignment could not be 
 made by a deed poll. Boyden v. Moore, 28 Mass. 362 ; Brewer v. Pitkin, 
 28 Mass. 292. The. law did not give any preference to an attachment or 
 an assignment, and would not marshal the assets to aid either. Gore v. 
 Clisby, 25 Mass. 555 ; Lupton v. Cutttr, 25 Mass. 298 ; Copeland v. 
 Weld, 8 Me. 411. Under the present statutes of Maine and N/ew Hamp- 
 shire, an assignment is valid against a subsequent attachment, although 
 the creditors have not assented. Fiske v. Carr, 20 Me. 301 ; Fellows v. 
 Greenleaf, 43 N. H. 421. The same rule prevailed under the statute of 
 Massachusetts, Shatluck v. Freeman, 42 Mass. 10, but assignments are 
 now void under the insolvent laws of that State. Stanfleld v. Simmons, 
 78 Mass. 442. Contra, Adams v. Blodgett, 2 Woodb. & Min. 233. 
 
334 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 to support the use. 1 If a consideration of money is ex- 
 pressed in the assignment, no averment or evidence can be 
 received to the contrary. 2 The relation of debtor and 
 creditor between the assignor and assignee, 3 and the under- 
 taking on the part of the assignee to pay the proceeds of 
 the estate to the creditors of the assignor, 4 are a sufficient 
 valuable consideration. The real consideration is the 
 debts due to the creditors, and these constitute a valuable 
 consideration in the highest sense of the term, 5 and relieve 
 the assignment from the imputation of fraud that would 
 result from a naked gift. 6 
 
 Presumption of Assent/ — The creditors may reject 
 the beneficiary interest given to them by the assignment, 
 and if they do it falls to the ground and becomes a re- 
 sulting trust for the debtor. But if the trust is for their 
 benefit, the law presumes their assent to it until the con- 
 trary is shown. 7 Whether the beneficiaries in the trust 
 
 1 Cunningham v. Freeborn, 11 Wend. 241 ; s. c. 1 Edw. 256 ; 3 Paige, 
 537 ; U. S. Bank v. Huth, 4 B. Mon. 423 ; Repplier v. Buck, 5 B. Mon. 
 96 ; Hall v. Dennison, 17 Vt. 310 ; Jones v. Dougherty, 10 Geo. 273. 
 Contra, M'Kinley v. Combs, 1 Mon. 105. 
 
 ! Wilt v. Franklin, 1 Binn. 502. 
 
 3 Cunningham v. Freeborn, 11 Wend. 241 ; s. c. 1 Edw. 256 ; 3 Paige, 
 537 ; Ward v. Trotter, 3 Mon. 1 ; Jones v. Dougherty, 10 Geo. 273. 
 
 4 Wilt v. Franklin, 1 Binn. 502 ; Halsey v. Whitney, 4 Mason, 206 ; 
 Haven v. Richardson, 5 N. H. 113 ; IT. S. Bank v. Huth, 4 B. Mon. 423 ; 
 Hall v. Dennison, 17 Vt. 310 ; Petrikin v. Davis, Morris, 296 ; Fermester 
 v. McRohrie, 12 Ired. 287 ; Gates v. Labeaume, 19 Mo. 17. 
 
 6 Halsey v. Whitney, 4 Mason, 206 ; U. S. Bank v. Huth, 4 B. Mon. 
 423 ; Hudlon v. Maze, 4 111. 578 ; Hall v. Dennison, 17 "Vt. 310 
 Laurence v. Davis, 3 McLean, 177 ; Meeker v. Saunders, 6 Iowa, 61 
 Stephenson v. Hayward, Prec. Ch. 310 ; Hollister v. Loud, 2 Mich. 309 
 Gates v. Labeaume, 19 Mo. 17. 
 
 U. S. Bank v. Huth, 4 B. Mon. 423 ; Hollister v. Loud, 2 Mich. 309. 
 
 ' Halsey v. Whitney, 4 Mason, 206 ; Wheeler v. Sumner, 4 Mason, 183 ; 
 Abercrombie v. Bradford, 16 Ala. 560 ; Farquharson v. McDonald, 2 Heisk. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 335 
 
 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. 1 An express avowal of that 
 assent is not necessary to the operation of the assignment, 2 
 for the deed is complete when executed by the parties to 
 it. 8 If an assent is expressly given, it operates retro- 
 actively to confirm the conveyance ab initio} Even with- 
 out such assent the assignment will prevail over a subse- 
 quent execution or attachment. 5 If one cestui 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 
 some time after the date of its creation: The deed, how- 
 ever, is good and available on the instant of its execution, 
 and can only be avoided by the dissent, express or implied, 
 of the cestuis que trust. 6 The doctrine of implied assent, 
 however, is limited to those cases where there is a reason- 
 
 404 ; England v. Reynolds, 38 Ala. 370 ; Hyde v. Olds, 12 Ohio St. 591 ; 
 Price v. Parker, 11 Iowa, 144 ; Fellows v. Greenleaf, 43 N. H. 421 ; Brown 
 v. Lyon, 17 Ala. 659 ; Rankin v. Lodor, 21 Ala. 380 ; Lanier v. Driver, 
 24 Ala. 149; Gale v. Mensing, 20 Mo. 461 ; Sadlier v. Fallon, 4 R. I. 490 ; 
 TJ. S. 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. Burrell, 1 Root, 252 ; Widgery v. Haskell, 5 Mass. 144 ; 
 Leeds v. Sayward, 6 N. H. 83 ; Edwards v. Mitchell, 67 Mass. 239 ; 
 Waters v. Comly, 3 Harring. 117. In England each case is governed by 
 its own circumstances. Smith v. Hurst, 10 Hare, 30 ; S. c. 15 E. L. & 
 Eq. 520 ; 17 Jur. 30 ; 22 L. J. Ch. (N. S.) 289. 
 
 1 Furman v. Fisher, 4 Cold. 626. 
 
 8 Nicoll v. Mumford, 4 Johns. Ch. 522. 
 
 8 Brooks v. Marbury, 1 Wheat. 78. 
 
 4 Halsey v. Whitney, 4 Mason, 206. 'Rankin v. Lodor, 21 Ala. 380. 
 
 6 Skipwith v. Cunningham, 8 Leigh, 271. 
 
 22 
 
336 ASSIGNMENTS FOK THE BENEFIT OF CREDITORS. 
 
 able presumption of such assent, and does not apply to any 
 deed which does not appear to be for the benefit of the 
 creditors. 1 This presumption is not founded on the face of 
 the instrument, but in the nature and circumstances of the 
 entire case. 2 
 
 Effect of Requirement that Creditors shall Sign. 
 The assignment not only need not> but should not, contain 
 any provision for the creditors to sign it or become parties 
 to it. 3 When it expressly excludes all implied assent, by 
 requiring that the creditors shall manifest their consent 
 in a prescribed mode, 4 or by stipulating for the sanction 
 of a majority of the creditors, before it can take effect, 5 
 there can be no presumption of assent. When the pro- 
 vision is for those who execute it within a certain time, 
 the creditors can only claim a benefit under it by execut- 
 ing it within that time. 6 The mere omission to sign the 
 deed will not make the deed void unless there is some 
 express requirement to that effect. 7 
 
 When Assent not Presumed. — The presumption that 
 the creditors assent to an assignment is based on the prin- 
 ciple that every man may be presumed to assent to an act 
 which is for his benefit. But in order that this presump- 
 tion may arise, the assignment must, on its face, plainly 
 and clearly appear to be for their benefit. Where there 
 
 1 Smith v. Leavitts, 10 Ala. 92 ; Lockhart v. Wyatt, 10 Ala. 231. 
 8 Stewart v. Spencer, 1 Curt. 157. 
 8 Fellows v. Greenleaf, 43 N. H. 421. 
 
 * Todd v. Bucknam, 11 Me. 41 ; Swearinger v. Slicer, 5 Mo. 241 ; 
 Moore v. M'Duffy, 3 Hawks, 578. 
 
 » Laurence v. Davis, 3 McLean, 177 ; Shearer v. Loftin, 26 Ala. 703. 
 
 6 Brown v. Lyon, 17 Ala. 659. 
 
 ' Fellows v. Greenleaf, 43 N. H. 421 ; Gale v. Mensing, 20 Mo. 461. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 337 
 
 are conditions in the assignment, as, for instance, that the 
 creditors shall release their debts, the presumption of 
 assent does not arise, because it involves a question of dis- 
 cretion upon which different minds may draw different 
 conclusions. If, therefore, an assent on the part of credi- 
 tors is necessary to give full effect to such an assignment, 
 it is not complete until such assent is expressly given. 1 If 
 the assignment does not devote the property absolutely 
 and under all circumstances to the payment of debts, the 
 assent of creditors is not presumed. 2 There is no pre- 
 sumption of assent if the assignment is fraudulent, either 
 in law or in fact. 3 No assent, therefore, can be 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, 4 or where the majority 
 of the creditors are to have the power to fix the time for 
 the sale of the property, 5 or where the assignee is disquali- 
 fied, 6 or where the liability of the assignee is limited to 
 actual receipts or wilful defaults, 7 or where the assignees 
 are not to be responsible for the neglect of each other. 8 
 There is also a distinction between an assignment by an 
 
 1 Halsey v. 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 v. 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 Kalkman v. McElderry, 16 Md. 56. 
 
 "Townsend v. Harwell, 18 Ala. 301 ; Stewart v. Spencer, 1 Curt. 157 ; 
 Ashley v. Robinson, 29 Ala. 112; Benning v. Nelson, 23 Ala. 801; Bald- 
 win v. Peet, 22 Tex. 708. 
 
 4 Todd v. Bucknam, 11 Me. 41 ; Elmes v. Sutherland, 7 Ala. 262. 
 
 6 Shearer v. Loftin, 26 Ala. 703. 
 
 « Spinney v. Portsmouth Co., 25 N. H. 9. 
 
 1 Brown v. Warren, 43 N. H. 430 ; Spinney v. Portsmouth Co., 25 N. 
 H. 9. 8 Spinney v. Portsmouth Co., 25 N. H. 9. 
 
338 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 insolvent debtor and a deed of trust by a solvent debtor. 1 
 If the latter 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. 2 
 
 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; 3 and this may 
 be done by any distinct and unequivocal act of renuncia- 
 tion. 4 Those who assail, the assignment on the ground 
 that the creditors have not accepted it, must repel the 
 presumption of assent by proof of disclaimer or abandon- 
 ment on the part of the creditors provided for. 5 
 
 Effect 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. 6 The distinction is between a deed which con- 
 
 1 Elmes v. Sutherland, 7 Ala. 262 ; Hodge v. Wyatt, 10 Ala. 271 ; 
 Pope v. Wilson, 7 Ala. 690 ; Dubose v. Dubose, 7 Ala. 235 ; Graham v. 
 Lockhart, 8 Ala. 9. 
 
 » Hodge v. Wyatt, 10 Ala. 271 ; Elmes v. Sutherland, 7 Ala. 262 ; 
 Evans v. Lamar, 21 Ala. 333 ; Kemp v. Porter, 7 Ala. 138 ; Graham v. 
 Lockhart, 8 Ala. 9 ; Shearer v. Loftin, 26 Ala. 703. 
 
 8 Smith v. Leavitts, 10 Ala. 92. 
 
 4 Farquharson v. McDonald, 2 Heisk. 404. 
 
 6 IT. S. Bank v. Huth, 4 B. Mon. 423 ; Moffatt v. Ingham, 7 Dana, 495. 
 
 6 Smith v. Leavitts, 10 Ala. 92 : Halsey v. Whitney, 4 Mason, 206 ; 
 Hastings v. Baldwin, 17 Maes. 552 ; Gordon v. Coolidge, 1 Sumner, 537 ; 
 Petrikin v. Davis, Morris, 296 ; Kinnard v. Thompson, 12 Ala. 487. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 339 
 
 templates 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 will make it valid as far as it respects 
 them. 1 In the former case, inasmuch as there can be no 
 presumption 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. 3 This 
 doctrine applies to all cases where the presumption of 
 assent does not arise. 
 
 Irrevocable. — The debtor can not revoke the assign- 
 ment, nor can he even extinguish it by getting a reconvey- 
 ance, for no act of the assignee can aftect the rights of the 
 cestuis que trust? The assignment, however, is revocable 
 
 '- Mauldin v. Armitstead, 14 Ala. 702 ; Brown v. Lyon, 17 Ala. 659. 
 
 9 Lockhart v. Wyatt, 10 Ala. 231 ; Hodge v. Wyatt, 10 Ala. 231 ; 
 Elmes v. Sutherland, 7 Ala. 262 ; Shearer v. Loftin, 26 Ala. 703. 
 
 8 Furman v. Fisher, 4 Cold. 626; Hyde v. Olds, 12 Ohio St. 591; 
 Ingram v. Kirkpatrick, 6 Ired. Eq. 462 ; Forbes v. Scannell, 13 Cal. 242 ; 
 Brown v. Chamberlain, 9 Fla. 464; Hall v. Dennison, 17 Vt. 310 ; Stewart 
 v. Hall, 3 B. Mon. 218 ; ex parte Conway, 12 Ark. 302 ; Skipwith v. Cun- 
 ningham, 8 Leigh, 271 ; . Sheldon v. Smith, 28 Barb. 593. Contra, Pitts v. 
 Viley, 4 Bibb. 446 ; M'Kinley v. Combs, 1 Mon. 105 ; Langton v. Tracey, 
 1 Nels. 126 ; s. o. 2 Ch. Rep. 30 ; Gait v. Dibrell, 10 Yerg. 146 ; Brevard 
 v. Neely, 2 Sneed, 164. The doctrine in England is that an assignment 
 is revocable. Gerrard v. Lauderdale, 3 Sim. 1 ; Page v. Broom, 4 Russ. 
 6 ; Acton v. Woodgate, 2 M. & K. 492 ; Griffith v. Ricketts, 7 Hare, 299 ; 
 Smith v. Hurst, 10 Hare, 30 ; s. 0. 15 Eng. L. & Eq. 520 ; S. o. 17 Jur. 30 ; 
 S. C. 22 L. J. Ch. (N. S.) 289 ; Law v. Bagwell, 4 Dr. & War. 398 ; Brown 
 v. Cavandish, 1 J. & L. 606; Gibbs v. Glamis, 11 Sim. 584; Ravenshaw 
 v. Collier, 7 Sim. 3 ; Simmonds v. Palles, 2 J. & L. 489 ; Walwyn v. 
 Couts, 3 Sim. 14 ; s. C. 3 Mer. 707. The deed is not revocable after such 
 communications as will give the creditors an interest in it. Griffith v. 
 
340 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 when the creditors refuse to accept, 1 or when they delay 
 for so long a time as to create a counter presumption to 
 rebut the presumption of assent. 2 In either of these cases 
 it may be altered, cancelled, or changed by the parties 
 to it. 
 
 Parties mat Alter a Fraudulent Assignment. — An 
 assignment which is fraudulent on its face is binding on 
 those who assent to it, 3 and consequently the debtor alone 
 can not change or modify the terms of the transfer in any 
 respect. 4 It is different, however, when the' parties con- 
 sent to a change. The distinction between void and void- 
 able must be regarded. A deed or instrument utterly 
 void is one that never existed. It passes nothing, confers 
 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 
 
 Bicketts, 7 Hare, 299 ; Acton v. Woodgate, 2 M. & K. 492 ; Harland v. 
 Binks, 15 A. & E. (N. S.) 713 ; s. c. 69 E. C. L. 713. Nor when there is 
 a covenant not to revoke. Griffith v. Bicketts, 7 Hare, 299. Nor after 
 the payment of an instalment. Kirwan v. Daniel, 5 Hare, 493. The 
 trustee upon revocation may retain for his own debt. Wilding v. Richards, 
 1 Coll. 655 ; Griffith v. Bicketts, 7 Hare, 299 ; Siggers v. Evans, 32 Eng. 
 L. & Eq. 139. 
 
 1 Gibson v. Chedie, 1 Nev. 497 ; Gibson v. Bees, 50 111. 383. 
 
 s Gibson v. Bees, 50 111. 383. 
 
 3 Hone v. Henriquez, 13 Wend. 240 ; s. c. 2 Edw. 120 ; Van Winkle 
 v. McKee, 7 Mo. 435 ; Johns v. Bolton, 12 Penn. 339 ; Geisse v. Beal, 3 
 Wis. 367; Bellamy v. Bellamy, 6 Fla. 62; Bichardson v. Sogers, 45 
 Mich. 591. 
 
 4 Porter v. Williams, 9 N. T. 142 ; s. c. 12 How. Pr. 107 ; Sheldon v. 
 Smith, 28 Barb. 593 ; Metcalf v. Van Brunt, 37 Barb. 621. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 341 
 
 voidable only and not absolutely void. 1 A void deed is 
 incapable of confirmation 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 prevent it. 
 
 Parties to an Alteration. — The validity of an assign- 
 ment always depends upon the presumed assent of the 
 creditors who are provided for by its terms, and when the 
 assignment is fraudulent there is no such presumption. 
 The assignment then belongs to a class of instruments 
 which are revocable until all the creditors have assented, 
 and may be cancelled, abrogated, or modified at pleasure 
 by those who are parties to it. 2 But the only persons 
 who need to unite in such a cancellation or 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 the creditors take measures to impeach and avoid 
 the instrument, and the creditors for whom no provision 
 is made in the assignment, or who have not become parties 
 to it, can not complain of the cancellation or modification, 
 for no trust results in their favor. 3 No alteration or revo- 
 cation, however, can prejudice the rights of a creditor 
 who has obtained a valid lien upon the property. 4 
 
 Mode of Alteration. — It is immaterial in what form 
 the alteration may be made, whether by a reconveyance 
 
 1 Hone v. Woolsey, 2 Edw. 289. 
 * Insurance Co. v. Wallis, 23 Md. 173. 
 8 Hone v. Woolsey, 2 Edw. 289. 
 
 4 Porter v. Williams, 9 N. Y. 142 ; s. c. 12 How. Pr. 107 ; Gates v. 
 Andrews, 37 N. Y. 657. 
 
342 ASSIGNMENTS FOB THE BENEFIT OF CREDITORS. 
 
 back to the debtor and a reassignment by him, or by 
 another assignment without a reconveyance, 1 or by an 
 instrument reiterating the trusts and dispensing with the 
 provisions which make the assignment void. 2 The law 
 looks to the object and intent of the parties, and gives 
 effect to their acts so as to carry such intention into effect 
 wherever it is fair and honest. There must, however, in 
 all cases be an abandonment of the fraudulent deed. The 
 assignee can not take a good security and yet avail him- 
 self of that which is vicious, much less can he make the 
 new security a means of sustaining that which is illegal. 3 
 Therefore one void deed can not be made good by another 
 void deed, nor can the two be construed together as one 
 instrument. 4 A deed of appointment under a power re- 
 served in the assignment can not have any more validity 
 than the assignment itself, for it can not be supported and 
 carried into effect while the assignment is set aside. 5 
 
 Form. — No particular form of words or instrument is 
 necessary to constitute a valid assignment of chattels or 
 choses m action. Any valid transfer by which the uses 
 
 : Brahe v. Eldridge, 17 Wis. 184 ; Bridges v. Hindes, 16 Md. 101 ; 
 Sumner v. Hicks, 2 Black. 532 ; Ingraham v. Wheeler, 6 Conn. 277 ; Mills 
 v. Argall, 6 Paige, 577 ; Pierce v. Brewster, 32 111. 268 ; Overton v. 
 Holinshade, 5 Heisk. 283 ; First Nat'l Bank v. Hughes, 10 Mo. Ap. 7. 
 
 2 Hone v. Woolsey, 2 Edw. 289 ; Conkling v. Carson, 11 111. 503 ; Mer- 
 rill v. Englesby, 28 Vt. 150 ; Murray v. Riggs, 15 Johns. 571 ; s. c. 2 
 Johns. Ch. 565 ; Cohens v. Summers, 54 Geo. 501 ; vide Porter v. Wil- 
 liams, 9 N. Y. 142 ; s. c. 12 How. Pr. 107 ; Smith v. Howard, 20 How. 
 Pr. 121 ; Gates v. Andrews, 37 N. Y. 657 ; Gable v. Williams, 58 Md. 
 
 s Mackie v. Cairns, 5 Cow. 547; s. c. 1 Hopk. 373; D'lvernois v. 
 Leavitt, 23 Barb. 63. 4 Bridges v. Hindes, 16 Md. 101. 
 
 - Lentilhon v. Moffatt, 1 Edw. 451 ; Averill v. Loucks, 6 Barb. 470 ; 
 Mitchell v. Styles, 13 Penn. 306 ; vide Murray v. Riggs, 15 Johns. 571 ; 
 s. 0. 2 Johns. Ch. 565. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 343 
 
 and trust 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. 1 If the deed is 
 intelligible, brevity is not a badge of fraud. 3 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. 3 An assignment of 
 personal property and choses in action need not be under 
 seal. 4 It may be by parol. A mere delivery of the sub- 
 ject assigned is sufficient. 5 The form of the assignment is 
 immaterial. An assignment consisting of three parts is as 
 valid as as assignment consisting of but one part. 6 When 
 an assignment is made by a firm, and some of the partners 
 constitute another firm, the assets of both firms may be 
 assigned by one and the same deed instead of by different 
 deeds. 7 Choses in action may be assigned as well as 
 property susceptible of or actually reduced to possession. 8 
 
 Schedules. — No schedule either of the creditors or of 
 the property need be annexed. ' The fact that it transfers 
 
 1 Norton v. Kearney, 10 Wis. 443. 
 
 •Forbes v. Scannell, 13 Cal. 242; Meeker v. Sanders, 6 Iowa, 61; 
 State v. Keeler, 49 Mo. 548. 
 
 3 Dunham v. Waterman, 17 N. Y. 9 ; S. c. 6 Abb. Pr. 357 ; 3 Duer, 
 166 ; Jessup v. Hulse, 21 N. Y. 168 ; s. c. 29 Barb. 539. 
 
 4 Forbes v. Scannell, 13 Cal. 242. 
 
 6 Brown v. Chamberlain, 9 Fla. 464. 6 Page v.Weymouth, 47 Me. 238. 
 
 ' Gordon v. Cannon, 18 Gratt. 387. 
 
 8 U. S. v. Bank of U. S., 8 Rob. (La.) 262. 
 
 "Brashear v. West, 7 Pet. 608; Wilt v. Franklin, 1 Binn. 502; Hower 
 v. Geesaman, 17 S. & R. 251 ; Wooster v. Stanfleld, 11 Iowa, 128 ; Brown 
 v. Chamberlain, 9 Fla. 464 ; Halsey v. Whitney, 4 Mason, 206 ; Pearpoint 
 v. Graham, 4 Wash. C. C. 232 ; Keyes v. Brush, 2 Paige, 311 ; Cunning- 
 ham v. Freeborn, 11 Wend. 241 ; s. C 1 Edw. 256 ; 3 Paige, 537 ; Meeker 
 v. Sanders, 6 Iowa, 61 ; Parker v. Price, 11 Iowa, 144 ; Gordon v. Cannon, 
 
344 ASSIGNMENTS FOB THE BENEFIT OF CREDITORS. 
 
 money and choses in action does not make any difference. 1 
 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. 2 
 If there is no such certainty in the description of the 
 articles purported to be conveyed, no transfer is effected. 3 
 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.* But where a schedule is made 
 a part of the conveyance, and is referred to as containing 
 a specification of the property intended to be conveyed, 
 it must be annexed not only as a description and speci- 
 fication of the property, but as necessary by the very 
 terms of the instrument to complete the conveyance or 
 transfer, and without it the deed is void 5 
 
 Statement of Debts. — The assignment need not name 
 the creditors or the amount due to each. This must 
 
 18 Gratt. 387 ; 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 v. Raisin, 7 Mo. 449 ; Robins v. Embry, 1 S. & M. Ch.' 207 ; ex 
 parte Conway, 12 Ark. 302 ; U. S. Bank v. Huth, 4 B. Mon. 423 ; Dana 
 v. Lull, 17 Vt. 390 ; Kevan v. Branch, 1 Gratt. 274 ; Brown v. Lyon, 17 
 Ala. 659 ; Shackelford v. Planters' Bank, 22 Ala. 238 ; Hollister v. Loud, 
 2 Mich. 309 ; Matthews v. Poultney, 33 Barb. 127 ; Robinson v. Rapelye, 
 2 Stew. 86 ; Strong v. Carrier, 13 Conn. 319 ; Petrikin v. Davis, Morris, 
 296; Nye v. Van Husan, 6 Mich. 329 ; Sadler v. Immel, 15 Nev. 265. 
 
 1 Brown v. Lyon, 17 Ala. 659. 
 
 5 Halsey v. Whitney, 4 Mason, 206 ; Spring v. Strauss, 3 Bosw. 607 
 Emerson v. Knower, 25 Mass. 63 ; Woodward v. Marshall, 39 Mass. 468 
 Haven v. Richardson, 5' N". H. 113 ; Rundlett v. Dole, 10 N. H. 458 
 Clark v. Mix, 15 Conn. 152; Birchell v. Strauss, 28 Barb. 293. 
 
 8 Crow v. Ruby, 5 Mo. 484 ; Drakeley v. Deforest, 3 Conn. 272 ; Ryer- 
 son v. Eldred, 18 Mich. 12. 
 
 4 Haven v. Richardson, 5 N. H. 113 ; England v. Reynolds, 38 Ala. 370 
 
 8 Moir v. Brown, 14 Barb. 39. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 345 
 
 necessarily be the form of every general assignment for 
 the benefit of all the creditors, for otherwise it would be 
 special as to the persons named. 1 If the debts are 
 described, a description 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 subsequently. 2 It is 
 a direction to pay the sum due, whatever that may be. 3 
 The fact that some of the creditors are workmen is imma- 
 terial. 4 There need be no schedule of the creditors to 
 whom no preference is given. 5 An omission of the sched- 
 ule of preferred creditors will not make the assignment 
 void when the other trusts are capable of execution. 6 
 Creditors may be required to cause the amount of their 
 claims to be written on a schedule. 7 If the trust is 
 declared in the assignment, the parties may provide for a 
 future enumeration and annex schedules subsequently, 8 or 
 may allow additions to be made to the schedule of credi- 
 tors with the consent of the debtor, the assignee and any 
 one of the creditors. 9 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. 10 
 
 ' England v. Reynolds, 38 Ala. 370 ; Brown v. Knox, 6 Mo. 302 ; U. 
 S. Bank v. Huth, 4 B. Mon. 423 ; Barcroft v. Snodgrass, 1 Cold. 430 ; 
 Van Hook v. Walton, 28 Tex. 59 ; vide Caton v. Moseley, 25 Tex. 374. 
 
 8 Layson v. Rowan, 7 Rob. (La.) 1 ; Van Hook v. Walton, 28 Tex. 59. 
 
 3 Butt v. Peck, 1 Daly, 83. * Bank v. Talcott, 22 Barb. 550. 
 
 6 Halsey v. Whitney, 4 Mason, 206. 
 
 • Scott v. Guthrie, 10 Bosw. 408 ; s. c. 25 How. Pr. 512. 
 
 'Todd v. Bucknam, 11 Me. 41. 
 
 8 Halsey v. Whitney, 4 Mason, 206; Bank v. Talcott, 22 Barb. 550; 
 Ely v. Hair, 16 B. Mon. 230 ; Clap v. Smyth, 33 Mass. 247. 
 
 9 Halsey v. Whitney, 4 Mason, 206. 
 
 10 Halsey v. Whitney, 4 Mason, 206. 
 
346 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 Omission is Badge of Fraud. — The omission of sched- 
 ules is, however, a badge of fraud. 1 This is but an appli- 
 cation 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 estimate 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. 2 
 
 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. 3 The insertion of the name of the 
 assignee is essential to the validity of the instrument. 4 
 
 Delivery of the Assignment. — A delivery of the 
 
 ' Brown v. Lyon, 17 Ala. 659 ; Pine v. Rikert, 21 Barb. 469 ; Kellogg 
 v. Slauson, 11 N. T. 302 ; s. c. 15 Barb. 56 ; Van Nest v. Toe, 1 Sandf. 
 Ch. 4; Pearpoint v. Graham, 4 Wash. C. C. 232; Stevens v. Bell, 6 
 Mass. 339; Halsey v. Whitney, 4 Mason, 206; Wilt v. Franklin, 1 Binn. 
 502; Young v. Gillespie, 12 Heisk. 239. 
 
 8 Cummings v. McCullough, 5 Ala. 324 ; Overton v. Hollinshade, 5 
 Heisk. 283. In Indiana, the schedule need not be recorded with the 
 assign'ment. 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 verified by affidavit. A failure 
 to comply with the statute makes the assignment void. Juliand v. Rath- 
 bone, 39 N. Y. 369 ; Fairchild v. Gwynne, 16 Abb. Pr. 23 ; s. C. 14 Abb. 
 Pr. 121 ; De Camp v. Marshall, 2 Abb. Pr. (N. S.) 373. Contra, Evans 
 v. Chapin, 12 Abb. Pr. 161 ; s. e. 20 How. Pr. 289 ; Van Vleet v. 
 Slauson, 45 Barb. 317 ; Barbour v. Everson, 16 Abb. Pr. 366 ; Read v. 
 Worthington, 9 Bosw. 617. 8 Forbes v. Scannell, 13 Cal. 242. 
 
 4 Reamer v. Lamberton, 59 Penn. 462. 
 
ASSIGNMENTS FOE THE BENEFIT OF CREDITORS. 347 
 
 assignment to the assignee is sufficient. 3 A delivery in 
 fact or in law to some person, or into some place beyond 
 the debtor's control, is indispensable. 2 A delivery to the 
 clerk to be recorded, 3 or to a third person, 4 or a deposit of 
 it in the postoffice, 5 is sufficient. 
 
 Acceptance of the Trust. — There must also be an 
 acceptance of the trust. A delivery of the assignment 
 without an acceptance of the trust is nugatory. 6 The 
 mere taking of the instrument and retaining it is nothing. 
 An agreement to accept before the execution of the assign- 
 ment is sufficient. 7 The acceptance will be presumed; 8 
 but this presumption is liable to be rebutted. 9 An ac- 
 ceptance before any adverse steps are taken by others is 
 sufficient. 10 It is not necessary for the assignee to sign the 
 assignment to make it valid. All that equity requires is 
 his assent and acceptance of the trust. If he 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. Any act done in relation 
 to the property showing that he claims it as assignee, or 
 
 1 Ingraham v. Grigg, 21 Miss. 22. 
 
 "Marston v. Coburn, 17 Mass. 454; M'Kinney v. Khoades, 5 Watts, 
 343 ; Brevard v. Neely, 2 Sneed, 164 ; Caldwell v. Bruggerman, 4 Minn. 
 270 ; Van Hook v. Walton, 28 Tex. 59. 
 
 3 Tompkins v. Wheeler, 16 Pet. 106; Major v. Hill, 13 Mo. 247; Hoff- 
 man v. Mackall, 5 Ohio St. 124. 4 Moore v. Collins, 3 Dev. 126. 
 
 "M'Kinuey v. Rhoades, 5 Watts, 343. 
 
 • Crotby v. Hillyer, 24 Wend. 280 ; Quincy v. Hall, 18 Mass. 357 ; 
 Pierson v. Manning, 2 Mich. 445. 
 
 1 Hoffman v. Mackall, 5 Ohio St. 124. 
 
 8 Wilt v. Franklin, 1 Binn. 502 ; M'Kinney v.. Rhoades, 5 Watts, 343; 
 Siggers v. Evans, 32 Eng. L. & Eq. 139. 
 
 "Wilt v. Franklin, 1 Binn. 502; Crosby v. Hillyer, 24 Wend. 280; 
 Pierson v. Manning, 2 Mich. 445 ; Sp< ncer v. Ford, 2 Rob. Va. 648. 
 
 '• Lampson v. Arnold, 19 Iowa, 479 ; Nailer v. Young, 7 Lea. 755. 
 
348 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 desires to reduce it into possession, undeniably proves his 
 assent. 1 Taking possession of the estate is an acceptance 
 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. 3 When there are two assignees, if one 
 refuses to accept, the other assignee becomes vested with 
 the trust in the same manner as if the dissenting assignee 
 had not been named in the instrument. 3 The assignee 
 can not, without the consent of the debtor, accept the 
 assignment in part and reject it in part. If he adopts it 
 at all he must adopt it in toto. He can not affirm it as to 
 some debts and disaffirm it as to others. 4 The assignee's 
 title to the goods is complete by the execution of the 
 assignment, subject to be defeated by his laches in not 
 giving reasonable notice, or in not following up his title to 
 possession. 5 
 
 Notice to Creditors — The recording of an assign- 
 ment is, in the absence of fraud, sufficient notice to credi- 
 tors. 6 
 
 Legal Effect. — An assignment creates a trust. All 
 the legal interests vest nominally in the assignee, but 
 substantially in the cestuis que trust or creditors, and the 
 
 1 Ex parte Conway, 12 Ark. 302; Flint v. Clinton Co., 12 N. H. 430 ; 
 State v. Benoist, 37 Mo. 500. 
 
 8 Cunningham v. Freeborn, 11 Wend. 241 ; s. o. 1 Edw. 256 ; 3 Paige, 
 537 ; Price v. Parker, 11 Iowa, 144. 
 
 8 Mead v. Phillips, 1 Sandf. Ch. 83 ; Moir v. Brown, 14 Barb. 39 ; Met- 
 calf v. Van Brunt, 37 Barb. 621 ; Gordon v. Coolidge, 1 Sumner, 537 ; 
 ex parte Conway, 12 Ark. 302; Forbes v. Scannell, 13 Cal. 242. 
 
 4 Gordon v. Coolidge, 1 Sumner, 537. ' 
 
 6 Bholen v. Cleveland, 5 Mason, 174 ; West v. Tupper, 1 Bailey, 193 ; 
 Frazier v. Fredericks, 24 N. J. 162 ; Wilt v. Franklin, 1 Bin. 502. Contra, 
 Caldwell v. Bruggerman, 4 Minn. 270. 
 
 6 Farquharson v. Eichelberger, 15 Md. 63. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 349 
 
 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 ren- 
 dered valid for higher and more beneficial 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 assignment have 
 the right to go into a court of equity and have the trust 
 specifically executed. 1 
 
 Incident of Ownership. — The right to make an assign- 
 ment results from that absolute dominion which every 
 man has over that which is his own, and is not of itself 
 calculated to excite suspicion. 2 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 cestuis que trust, 
 and the assignment only constitutes the means and appoint 
 ment by which debts are to be paid. If a 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 
 
 1 Ex parte Conway, 12 Ark. 302 ; U. S. Bank v. Huth, 4 B. Mon. 423 ; 
 Hall v. Dennison, 17 VI. 310 ; Houston v. Nowland, 7 G. & J. 480 ; Mar- 
 bury v. Brooks, 7 Wheat. 556; S. c. 11 Wheat. 78. 
 
 ' Brashear v. West, 7 Pet. 608 ; ex parte Conway, 12 Ark. 302. 
 
350 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 legal duty to pay, in the other it is but the performance 
 of the same act, and is supported by the same just con- 
 sideration. 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 
 satisfaction of his debts, and the exercise of this right by 
 the honest performance of this duty can not be deemed a 
 fraud. Such an assignment is usually made to an assignee 
 because this 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. 1 
 
 Who may Assign. — A corporation, unless restrained 
 by some statute or express provision in its charter, may 
 make an assignment as well as an individual. 3 But the 
 assignment to be valid must be made in pursuance of a 
 resolution of the board of directors. 3 An assignment may 
 be made by an executor. 4 
 
 Partners. — It is not competent for one partner, with- . 
 out the assent or authority of the other partners, to make 
 
 1 Ex parte Conway, 12 Ark. 302. 
 
 8 Hill v. Reed, 16 Barb. 280; McCallie v. Walton, 37 Geo. 611 ; State 
 v. Bank, 6G.&J. 205 ; Union Bank v. Ellicott, 6 G. & J. 363 ; De Ruyter 
 v. St. Peter's Church, 3 N. Y. 238; s. c. 3 Barb. Ch. 119; Pope v. 
 Brandon, 2 Stew. 401 ; Robins v. Emhry, 1 S. & M. Ch. 207 ; ex parte 
 Conway, 12 Ark. 302 ; Flint y. Clinton Co., 12 N. H. 430 ; Hopkins v. 
 Gallatin Co., 4 Humph. 403 ; London v. Parsley, 7 Jones (N. C.) 313. 
 Assignments by corporations, in contemplation of insolvency, are pro- 
 hibited in New York by 1 Rev. Stat. 603, § 4 ; Sibell v. Remsen, 33 N. Y. 
 95 ; Smith v. Consolidated Stage Co., 18 Abb. Pr. 418 ; Robinson v. Bank, 
 21 N. Y. 406 ; Loring v. Vulcanized Gutta Percha Co., 36 Barb. 329 ; 
 s. o. 30 Barb. 644 ; Harris v. Thompson, 15 Barb. 62. 
 
 8 Richardson v. Rogers, 45 Mich. 591. 
 
 1 Wolverhampton Bank v. Marston, 7 H. & N. 146. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 351 
 
 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 pos- 
 sesses an equal and general power and authority in behalf 
 of the firm to dispose of the partnership 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 limited 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 partnership 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. 1 One 
 partner, however, may execute an assignment when he has 
 previous authority. 2 The same reason applies where an 
 
 1 Welles v. March, 30 N. Y. 344 ; Coope v. Bowles, 42 Barb. 87 ; s. c. 
 18 Abb. Pr. 442'; s. c. 28 How. Pr. 10; Robinson v. Gregory, Appeals 
 Dec. 1863 ; s. c. 29 Barb. 560 ; Hughes v. Ellison, 5 Mo. 463 ; Dana' v. 
 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; 
 Hitchcock v. St. John, 1 Hoff. Ch. 511 ; Kirby v. Ingersoll, Harring. Gh. 
 172 ; Sheldon v. Smith, 28 Barb. 593 ; McClelland v. Remsen, 36 Barb. 
 622 ; s. c. 14 Abb. Pr. 331 ; s. c. 23 How. Pr. 175 ; Bowen v. Clark, 5 
 A. L. Reg. 203 ; Mauglin v. Tyler, 47 Md. 545. Contra, Deckard v. Case, 
 5 Watts, 22 ; Hennessey v. Western Bank, 6 W. & S. 300 ; Robinson v. 
 Crowder, 4 McCord, 519 ; Gordon v. Cannon, 18 Gratt. 387. 
 
 2 Welles v. March, 30 N. Y. 344 ; Baldwin v. Tynes, 19 Abb. Pr. 32 ; 
 Kelly v. Baker, 2 Hilt. 531 ; Roberts v. Shephard, 2 Daly, 110 ; Harrison 
 v. Sterry, 5 Cranch, 289 ; Kendall v. New Eng. Carpet Co., 13 Conn. 
 383 ; Pike v. Bacon, 21 Me. 280 ; Kemp v. Carnley, 3 Duer, 1 ; Eorbes v. 
 Scannell, 13 Cal. 242 ; Lassel v. Tuckner, 5 Sneed, 1 ; Williams v. Frost, 
 27 Minn. 255. 
 
 23 
 
352 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 extraordinary emergency occurs in the affairs of the 
 partnership and the other partner can not be consulted on 
 account of his absence under circumstances which furnish 
 reasonable ground for inferring that he intended to confer 
 upon the assigning partner authority to do any act for the 
 firm which could be done with his concurrence 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 1 or in a foreign country. 2 One partner may also 
 make an assignment when the other partner assents, 3 or 
 absconds, 4 or has sold out his interest to the assignor. 5 A 
 dormant partner need not execute the assignment. 6 Sur- 
 viving partners may make an assignment. 7 Partners may 
 make an assignment although one of them is a minor, for 
 a trust deed by an infant is valid until he avoids it, and 
 binds the trustee and all others until he elects to dis- 
 affirm it. 8 
 
 Incidental Delay. — The necessary effect of every gen- 
 eral assignment, even where the creditors are to be paid 
 pari 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 
 
 ' McCullough v. Summerville, 8 Leigh, 415. 
 
 2 Forbes v. Scanuell, 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 ; s. c. 43 Barb. 9 ; National Bank 
 v. Sackett, 2 Daly, 395. 
 
 6 Clark v. McClelland, 2 Grant, 31. 6 Drake v. Bogers, 6 Mo. 317. 
 
 ' Egbert v. Woods, 3 Paige, 517 ; Hutchinson v. Smith, 7 Paige, 26 ; 
 French v. Lovejoy, 12 N. H. 458. Contra, Barcroft v. Snodgrass, 1 Cold. 
 430. 
 
 8 Yates v. Lyon, 61 N. Y. 344 ; s. c. 61 Barb. 205. Contra, Fox v. 
 Heath, 21 How. Pr. 384 ; s. C. 16 Abb. Pr. 163. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 353 
 
 remedies, and thus tends to hinder those who are disposed 
 to prosecute their suits. 1 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 preventing them from obtaining any 
 judgments by which it may be bound, or from issuing any 
 execution or attachment under which it may be sold. He 
 means to hinder the creditors from collecting their debts 
 out of his property by any proceedings against himself as 
 their debtor, and to delay them from receiving any portion 
 of their debts until they shall become entitled to a divi- 
 dend 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 unfrequently 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 assign- 
 ment, although for the benefit of all the creditors without 
 distinction, was not only seriously doubted, but seriously 
 contested. 2 But it is not every conveyance which will 
 have the effect of delaying or hindering creditors in the 
 collection of their debts that is fraudulent within the 
 statute, for such is the effect pro tanto of every assign- 
 ment that can be made by one who has creditors. Every 
 assignment 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. 
 
 What Intent is Necessary. — The object of the 
 statute is to prevent deeds fraudulent in their inception 
 
 ' Dunham v. Waterman, 17 N. T. 9 ; s. C. 6 Abb. Pr. 357 ; 3 Duer 
 166 ; vide Burdick v. Post, 12 Barb. 168 ; s. c. 6 N. Y. 522. 
 
 3 Pickstock v. Lyster, 3 M. & 8. 371 ; King v. Watson, 3 Price, 6. 
 
354 ASSIGNMENTS FOE THE BENEFIT OF CREDITORS. 
 
 and intention, and not merely such as in their effect may- 
 hinder or delay creditors. It is the corrupt and covinous 
 motive, the fraudulent intention, the mala mens, with 
 which the assignment or conveyance is made, that con- 
 stitutes 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. 1 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 
 contemplation of law the absolute owner of property, it 
 can not be said of an appropriation of that property exclu- 
 sively to the purpose of paying debts that it is a contriv- 
 ance 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. 3 
 Such an appropriation can not be deemed to be made with 
 the fraudulent intent or purpose to hinder or delay, but 
 with the higher and better intent and purpose of paying 
 or securing all equally, or providing for those who are 
 most meritorious. 4 All the law can reasonably demand 
 
 1 TJ. 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 TJ. 8., 8 Rob. (La.) 262 ; True v. Congdon, 44 N. H. 48 ; Church v. 
 Drummond, 7 Ind. 17 ; Gates v. Labeaume, 19 Mo. 17; Baldwin v. Peet, 
 22 Tex. 708. 9 Christopher v. Covington, 2 B. Mon. 357. 
 
 8 Hafner v. Irwin, 1 Ired. 490. 
 
 4 U. S. Bank v. Huth, 4 B. Mon. 423 ; Nimmo v. Kuykendall, 85 111. 
 476. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 355 
 
 is a faithful application of the debtor's property to the 
 payment of debts, and when this object is accomplished 
 by an assignment or deed of trust for the benefit of his 
 creditors, the hindrance and delay which may operate to 
 the prejudice of particular creditors is simply an unavoid- 
 able incident to a just and lawful act. Such mere inci- 
 dent to a lawful act does not vitiate the transfer. 1 
 
 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. 2 It may even be made on the same 
 day that a verdict is rendered against the assignor, 3 or the 
 claim of the creditor assailing it may be specially in the 
 contemplation of the debtor. 4 It will not in such case be 
 
 1 Hoffman v. Mackall, 5 Ohio St. 124; Townsend v. Steams, 32 N. Y. 
 209; Guerin v. Hunt, 8 Minn. 477 ; s. c. 6 Minn. 375. 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. 333 ; Stickney v. 
 Crane, 35 Vt. 89 ; Baldwin v. Peet, 22 Tex. 708. 
 
 'Riches v. Evans, 9 C. & P. 640; Johnson v. Osenton, L. R. 4 Ex. 
 107 ; Lee v. Green, 35 Eng. L. & Eq. 261 ; Bowen v. Bramidge, 6 C. & 
 P. 140; Wolverhampton Bank v. Marston, 7 H. & N. 146; Wilt v. 
 Franklin, 1 Binn. 502 ; Pickstock v. Lyster, 3 M. & S. 371 ; Jackson y. 
 Cornell, 1 Sandf. Ch. 348 ; Heydock v. Stanhope, 1 Curt. 471 ; Reed v. 
 Mclntyre, 98 TJ. S. 507 ; vide Dalton v. Currier, 40 N. H. 237. 
 
 3 Jackson v. Cornell, 1 Sandf. Ch. 348. 
 
 4 Horwitz v. Ellinger, 31 Md. 492. 
 
356 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 void, even as against the persons 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 satisfac- 
 tion of their debts which, by their superior diligence in 
 prosecuting their suits, they would otherwise have cer- 
 tainly obtained. The explanation is that although in 
 these cases the intent to hinder and delay 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 pro- 
 hibited. 1 
 
 All the law can reasonably demand of a debtor is the 
 faithful application of his entire property to the satisfac- 
 tion of his debts, and where by the terms of the assign- 
 ment this is secured, the hindrance and delay which they 
 create, however they may operate to the prejudice of par- 
 ticular creditors, are disregarded, since they are only the 
 necessary means of accomplishing a j ustifiable 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. 2 It makes no 
 difference, therefore, that the debtor is in failing circum- 
 stances, that suits are threatened, that judgments exist 
 against him, or that executions against him are moment- 
 arily expected. Under any or all of these contingencies 
 he has the full and absolute right to dispose of his pro- 
 
 1 Hoffman v. Mackall, 5 Ohio St. 124. 
 
 a Nicholson v. Leavitt, 4 Sandf. 252 ; s. c. 6 N. Y. 510 ; 10 N. Y. 591. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 357 
 
 perty for the payment of his debts. 1 The fact, therefore, 
 that the assignment is made for the purpose of avoiding 
 the preference that might otherwise be obtained by legal 
 process in a race of eager diligence by disappointed credi- 
 tors, does not make the assignment invalid. Such is gen- 
 erally the motive to the making of such an assignment. 3 
 
 Secret Motives. — The inducements which may have 
 led to the assignment are not to be inquired into. The 
 law deals with the act of the party, and not with the 
 secret springs which prompted it. 3 If the assignment is 
 such as the law authorizes and approves, the secret 
 motives that prompted it are entirely immaterial. 4 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 appro- 
 priation of it for the benefit of his creditors. 5 This, more- 
 over, 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 instrumentof defeating 
 or delaying the collection of debts. It is not, therefore, 
 for the same reason competent for a creditor to vacate an 
 assignment as to himself, while it may be good as to every 
 one else, by showing that there was fraud or misrepre- 
 
 1 Stewart v. English, 6 Ind. 176 ; Hollister v. Loud, 2 Mich. 309. 
 
 2 Horwitz v. Ellinger, 31 Md. 492. 3 Pike v. Bacon, 21 Me. 280. 
 4 Horwitz v. Ellinger, 31 Md. 492 ; Mackintosh v. Corner, 33 Md. 598 ; 
 
 Wilson v. Berg, 88 Penn. 167. 6 Pike v. Bacon, 21 Me. 280. 
 
358 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 sentation on the part of the debtor in the creation of the 
 debt due to him. 1 
 
 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. 2 But the only 
 intent which will vitiate the assignment is a fraudulent 
 intent, that is, an intent which the law will not permit to 
 be carried into effect, an intent to secure 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 assignment, the court may declare it to be void ; 
 but if the fraudulent intent is not expressed in the assign- 
 ment, then it can only be invalidated by proof that the 
 fraudulent intent existed at the time of the execution of 
 the assignment. 3 An assignment can not be made the 
 means of covering up and preserving the property for the 
 debtor's use, or of withdrawing and protecting it from the 
 lawful actions, remedies and demands of his creditors. If 
 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, or as 
 a means of forcing the creditors to accept a settlement; 4 
 
 ! Horwitz v. Ellinger, 31 Md. 492 ; Mattison v. Demarest, 4 Robt. 
 161 ; Pearce v. Jackson, 2 E. I, 35 ; Reinhard v. Bank of Ky., 6 B. Mon. 
 252 ; Kennedy v. Thorpe, 51 ST. Y. 174 ; s. 0. 2 Daly, 45 ; 3 Abb. Pr. (N. 
 S.) 131 ; Waverly Bank v. Halsey, 57 Barb. 249 ; Talcott v. Rosenthal, 
 29 N. Y. Supr. 573 ; Lininger v. Raymond, 12 Neb. 19, 167. 
 
 2 State v. Benoist, 37 Mo. 500. 
 
 3 Bailey v. Mills, 27 Tex. 434 ; Van Hook v. Walton, 28 Tex. 59. 
 4 Keevil v. Donaldson, 20 Kans. 165. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 359 
 
 if it is not designed in good faith for the payment of debts 
 really owed, but the whole transaction is conceived in 
 collusion, malice, covin and bad faith, and tainted with 
 secret fraud, it is void. 1 
 
 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 pre- 
 vent 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 unlawful and fraudulent. 2 
 A sale of all the debtor's property 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 property for his benefit. 3 If the 
 purchase, however, is in good faith, the giving of a note 
 and the making of an assignment shortly afterwards is no 
 fraud. 4 
 
 Fraud must be in the Beginning. — The only fraud 
 which will vitiate an assignment is fraud in its concoction. 
 
 1 State v. Benoist, 37 Mo. 500 ; Work v. Ellis, 50 Barb. 512 ; Wilson 
 v. Pearson, 20 111. 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. 
 
 J Angell v. Rosenburg, 12 Mich. 241; Shackelford v. Planters' Bank, 22 
 Ala. 238 ; Hefner v. Metcalf, 1 Head, 577 ; Gere v. Murray, 6 Minn. 305 ; 
 vide Ward v. Trotter, 3 Mon. 1. 
 
 » Litchfield v. Pelton, 6 Barb. 187 ; Cooke v. Smith, 3 Sandf. Ch. 333 ; 
 Mills v. Carnley, 1 Bosw. 159. 
 
 4 Loeschigk v. Baldwin, 38 N. Y. 326 ; S. C. 1 Eobt. 377. 
 
360 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 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 revest the prop- 
 erty in the debtor, or have a retroactive effect so as to 
 avoid the assignment itself. 1 An assignment honestly 
 made for an honest purpose can not be defeated by proof 
 that the assignee abused his trust, misappropriated the 
 property, or acted however dishonestly in its disposal, or 
 that he took unwise or even apparently dishonest means 
 to preserve the property from litigation or levy by a 
 creditor. 2 
 
 Assignee's Participation. — An assignment is founded 
 upon a valuable consideration. It is not like a mere gift, 
 for it is supported by the obligation assumed by the 
 assignee and by the debts due to the creditors. Although 
 the conveyance is in terms to the assignee, it is in fact to 
 the creditors, and they are the real beneficiaries. It is 
 true that there is no presumption that the creditors assent 
 to the assignment if it is fraudulent, and in such a case 
 the consideration of the debts due to them does not arise 
 
 ' Klappv. Shirk, 13 Perm. 589; Shattuck v. Freeman, 42 Mass. 10; 
 Petrikin v. Davis, Morris, 296 ; Wooster v. Stanfleld, 11 Iowa, 128 ; 
 Hotop v. Durant, 6 Abb. Pr. 371, note ; Cox v. Piatt, 32 Barb. 126 ; s. c. 
 19 How. Pr. J 21 ; 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. Labeaume, 19 Mo. 17 ; Hempstead v. Johnson, 18 
 Ark. 123 ; Cornish v. Dews, 18 Ark. 172 ; Beck v. Parker, 65 Penn. 262 ; 
 Baldwin v. Buckland, 11 Mich. 389. 
 
 2 Cuyler v. McCartney, 40 N. Y. 221 ; s. c. 33 Barb. 165 ; Hotop v. 
 Durant, 6 Abb. Pr. 371, note ; Matthews v. Poultney, 33 Barb. 127 ; TJ. 
 S. Bank v. Huth, 4 B. Mon. 423 ; Meeker v. Sanders, 6 Iowa, 61 ; Savery 
 v. Spaulding, 8 Iowa, 239 ; Cox v. Piatt, 32 Barb. 126 ; s. C. 19 How. Pr. 
 121 ; Shattuck v. Freeman, 42 Mass. 10 ; Petrikin v. Davis, Morris, 296 ; 
 Wooster v. Stanfleld, 11 Iowa, 128 ; Eicks v. Copeland, 53 Tex. 581 ; 
 Olney v. Tanner, 10 Fed. Rep. 171. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 361 
 
 until they actually assent to it, but the obligation of the 
 assignee remains nevertheless, and is of itself sufficient to 
 support the conveyance. 1 In such a case, when the 
 creditors give their express assent to it, their debts con- 
 stitute an additional consideration. 2 A fraudulent intent, 
 therefore, on the part of the debtor alone is not sufficient 
 to avoid the assignment, when neither the creditors nor 
 the assignee participate in the fraud. The act is right 
 although the intent may be wrong, and it seems unreason- 
 able to hold the act void when the assignee himself, per- 
 haps, may prevent the accomplishment of the intent. 
 Notice of the fraud to the assignee, however, is sufficient. 4 
 
 1 Bancroft v. Blizzard, 13 Ohio, 30 ; Thomas v. Talmadge, 16 Ohio 
 St. 434; Hollister v. Loud, 2 Mich. 309. 
 
 : Benning v. Nelson, 23 Ala. 801. 
 
 3 Myers v. Kinzie, 26 111. 36 ; Wise v. Wimer, 23 Mo. 237 ; Gates v. 
 Labeaume, 19 Mo. 17 ; State v. Keeler, 49 Mo. 548 ; Wilson v. Eifler, 7 
 Cold. 31 ; Marbury v. Brooks, 7 Wheat. 556 ; s. c. 11 Wheat. 78 ; Ban- 
 croft v. Blizzard, 13 Ohio, 30; Thomas v. Talmadge, 16 Ohio St. 434; 
 Cornish v. 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; Holt v. Kelly, 13 Ir. L. R. 33. Contra, 
 Rathbun v. Platner, 18 Barb. 272 ; Foley v. Bitter, 34 Md. 646 ; Griffin v. 
 Marquardt, 17 N. Y. 28 ; S. o. 21 N. T. 121 ; Mead v. Phillips, 1 Sandf. 
 Ch. 83 ; Wilson v. Forsyth, 24 Barb. 105.; Kayser v. Heavenrich, 5 
 Kansas, 324; Hairgrove v. Millington, 8 Kans. 480; Gere v. Murray, 6 
 Minn. 305 ; Stickney v. Crane, 35 Vt. 89 ; Irwin v. Keen, 3 Whart. 347 
 Flanigan v. Lampman, 12 Mich. 58 ; Lampson v. Arnold, 19 Iowa, 479 
 Ruble v. McDonald, 18 Iowa, 493 ; Pierson v. Manning, 2 Mich. 445 
 Stone v. Marshall, 7 Jones (N. C.) 300 ; Craft v. Bl(k>m, 59 Miss. In 
 some cases it is held that the assignment is void as against an attachment 
 or levy made before any creditors actually assent to it. Townsend v. 
 Harwell, 18 Ala. 301; Stewart v. Spencer, 1 Curt. 157; Benning v. 
 Nelson, 23 Ala. 801 ; Green v.' Banks, 24 Tex. 508 ; Baldwin v. Peet, 22 
 Tex. 708. 
 
 4 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 ; Crow v. 
 Beardsley, 68 Mo. 435 ; Prewitt v. Wilson, 103 U. S. 22 ; s. c. 3 Woods, 
 631. Contra, Pinneo v. Hart, 30 Mo. 561. 
 
362 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 An acceptance of the assignment with notice of such facts 
 as are sufficient to put him on the inquiry will invalidate 
 it. 1 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. 8 
 
 Construction of 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. 3 The law, however, pre- 
 sumes that every person intends the consequences which 
 necessarily flow from his acts, 4 and that he understands 
 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. 5 Whenever the fraud is apparent upon the face of 
 an instrument it is a question of fraud in law. Evidence 
 that an assignment was designed to be beneficial is in such 
 a case inadmissible. There is nothing for a jury to pass 
 upon when an instrument is fraudulent on its face. The 
 validity of an assignment is in such a case 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 design in making an assignment, 
 no evidence of intention can change the presumption. If 
 the law declares an assignment to be void, it is no matter 
 
 1 Stewart v. Spencer, 1 Curt. 157. 
 
 8 Green v. Banks, 24 Tex. 508 ; State v. Benoist, 37 Mo. 500 ; vide 
 Marbury v. Brooks, 7 Wheat. 556 ;*B. 0. 11 Wheat. 78. 
 
 3 Grover v. Wakeman, 11 Wend. 187, per Senator Edmonds. 
 4 Mackie v. Cairns, 5 Cow. 547 ; s. o. 1 Hopk. 373. 
 6 Sheldon v. Dodge, 4 Denio, 217. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 363 
 
 how the question of fraud in fact may stand. 1 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 assign- 
 ment 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 extrinsic evidence, the question 
 must be submitted to the proper tribunal to determine as 
 a matter of fact whether it is fraudulent or not. 3 
 
 Several Instruments mat constitute one Transac- 
 tion. — All papers executed in pursuance of an original 
 design contemplated and determined upon in the beginning, 
 are in law deemed to constitute one transaction, and are 
 construed together, whether made on the same day 4 or on 
 different days. 5 The mere fact that two or more convey- 
 ances are made at the same time has no necessary influ- 
 ence upon determining whether they constitute one trans- 
 action. 6 An individual may not only execute on the same 
 
 1 Green v. Trieber, 3 Md. 11 ; Malcolm v. Hodges, 8 Md. 418 ; Inloes 
 v. 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. Biggs, 15 Johns. 
 571 ; s. c. 2 Johns. Ch. 565 ; Harris v. Sumner, 19 Mass. 129 ; Richards 
 v. Hazzard, 1 Stew. & Port. 139 ; Howell v. Edgar, 4 111. 417. 
 
 2 Palmer v. Giles, 5 Jones Eq. 75. 
 
 » Johnson v. McAllister, 30 Mo. 32 7 ; Dunham v. Waterman, 17 N. T. 
 9 ; S. 0. 6 Abb. Pr. 357 ; 3 Duer, 166. 
 
 4 Mussey v. Noyes, 26 Vt. 462 ; Kruse v. Prindle, 8 Oregon, 158 ; 
 Schoolfleld v. Johnson, 11 Fed. Rep. 297. 
 
 6 Berry v. Cutts, 42 Me. 445 ; Holt v. Bancroft, 30 Ala. 193 ; Burrows 
 v. Lehndorf, 8 Iowa, 96 ; Spaulding v. Strang, 36 Barb. 310 ; s. c. 32 Barb. 
 235 ; S. c. 37 N. T. 135 ; s. c. 38 N. Y. 9 ; M'Allister v. Marshall, 6 
 Binn. 338 ; Cummings v. McCullough, 5 Ala. 324. 
 
 6 Lampson v. Arnold, 19 Iowa, 479 ; Mann v. Whitbeck, 17 Barb. 388 ; 
 Norton v. Kearney, 10 Wis. 443. 
 
364 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 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 properly 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. 1 
 It has for this reason been held that conveyances made at 
 different dates for the purpose of securing different sums 
 can be considered as one transaction. 2 Whether the instru- 
 ments constitute one transaction is a question for the jury. 3 
 A valid instrument, however, can never be impaired by a 
 subsequent attempt to aid it by an invalid instrument. 4 
 
 _ One Fraudulent Clause vitiates the whole Deed. — 
 A fraudulent stipulation makes the whole instrument void. 
 When an assignment 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 provision of the statute, it is void m toto, and no 
 interest passes to the grantee under the part which is 
 good. 5 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 
 
 1 Mower v. Hanford, 6 Minn. 535. 
 8 Wynkoop v. Shardlow, 44 Barb. 84. 
 
 3 Mower v. Hanford, 6 Minn. 535. 
 
 4 Lansing v. Woodworth, 1 Sandf. Ch. 43. 
 
 6 Albert v. Winn, 5 Md. 66; s. o. 7 Gill. 446; s. c. 2 Md. Ch. 169; 
 s. 0. 2 Md. Ch. 42 ; Hyslop v. Clarke, 14 Johns. 458 ; Mackie v. Cairns, 
 5 Cow. 547 ; S. 0. 1 Hopk. 373 ; Goodrich v. Downs, 6 Hill, 438 ; McClurg 
 v. Lecky, 3 Penna. 83 ; Robins v. Embry, 18. & M. Ch. 207 ; Jacot v. 
 Corbett, 1 Chev. Eq. 71 ; Howell v. Edgar, 4 111. 417 ; Dana v. Lull, 17 
 Vt. 390 ; Caldwell v. Williams, 1 Ind. 405 ; Pierson v. Manning, 2 Mich. 
 445 ; Green v. Branch Bank, 33 Ala. 643 ; Greenleaf v. Edes, 2 Minn. 
 264; Palmer v. Giles, 5 Jones Eq. 75; vide Bradway's Estate, 1 Ashm. 
 212. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 365 
 
 inserted or retained by inadvertence or mistake, and so 
 to give the instrument an actual character 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 reformation will be relieved of its 
 vicious taint, and be valid as to the creditors assailing it. 
 But without such rectification the instrument must stand 
 or fall upon the character impressed upon its face by the 
 parties, and by them sent out upon the world as express- 
 ing the contract and purpose of the parties to it. 1 
 
 Construed Strictly. — Assignments are often made the* 
 means of fraud, and are not regarded in the courts with 
 special favor. 3 Courts, however, are under no obligation 
 to be astute to destroy them. 3 The legal intendments are 
 all in favor of their validity, the same as of other instru- 
 ments. 4 The same fair and reasonable rules of construc- 
 tion must be applied to them as are adopted in ascertaining 
 the meaning of other instruments. 5 
 
 Onus Probandi. — The onus is upon the creditor who 
 assails an assignment to show that it is in plain violation 
 of the law. 6 It is a universal rule in the construction of 
 all deeds that fraud is never to be presumed. The reason 
 of the rule rests upon such plain principles of justice and 
 
 1 August v. Seeskind, 6 Cold. 166 ; Hooper v. Tuckerman, 3 Sandf. 
 311 ; Farrow v. Hayes, 51 Md. 498. 
 
 2 Heacock v. Durand, 42 111. 230 ; Stewart v. English, 6 Ind. 176. 
 8 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. 
 
 5 Whipple v. Pope, 33 111. 334. 
 
 ' Townsend v. Stearns, 32 N. Y. 209 ; Kreese v. Prindle, 8 Oregon, 
 158. 
 
366 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 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 evidence 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 con- 
 structive must be brought to light with reasonable cer- 
 tainty, and shown to be fairly applicable to the agreement 
 sought to be impeached. Mere conjecture or surmise, 
 however probable or persuasive, is never allowed to estab- 
 lish fraud. 1 Where an instrument is ambiguous in its 
 terms and admits of two constructions, that interpretation 
 'should be given to it which will render it legal and opera- 
 tive rather than that which will render it illegal and 
 void. 3 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 incon- 
 sistent also with a lawful act and an honest purpose. 3 It 
 is not, moreover, by selecting isolated words, inadvertently 
 used, and giving them their most unfavorable construction, 
 that fraud is to be imputed. The whole tenor of the in- 
 strument is to be taken into view in pronouncing upon its 
 general character. 4 
 
 No Inference that Debtor contemplated a Viola- 
 tion of the Trust. — The trust, like all others confided to 
 human hands, is liable to abuse, but this is no argument 
 
 1 Ex parte Conway, 12 Ark. 302. 
 
 2 Grover v. Wakeman, 11 Wend. 187 ; s. C. 4 Paige, 23 ; Bank v. Tal- 
 cott, 22 Barb. 550 ; Darling v. Bogers, 22 Wend. 483 ; s. c. 7 Paige. 272 ; 
 Jewett v. Woodward, 1 Edw. 195 ; Bapalee v. Stewart, 27 N. Y. 310 ; 
 Whipple v. Pope, 33 111. 334 ; Booth v. MclSTair, 14 Mich. 19 ; Townsend 
 v. Stearns, 32 N. Y. 209 ; Shackleford v. Planters' Bank, 22 Ala. 238. 
 
 8 Townsend v. Stearns, 32 N. Y. 209. 
 
 4 Bringham v. Tillinghast, 15 Barb. 618 ; s. c. 13 N. Y. 215. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 367 
 
 against its validity. 1 The law will not defeat an instru- 
 ment by inferring that the debtor contemplated an illegal 
 act on the part of the assignee. 2 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. 3 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 accord- 
 ing to their apparent and reasonable intent, they will be 
 fraudulent in their operation. It is only when the au- 
 thority is express to do an illegal act that the instrument 
 will be held void. 4 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. 5 
 
 Powers that mat not be Operative. — A power will 
 not be implied in order to overturn an instrument. The 
 reservation of a supposed existing right will not be con- 
 strued into the grant of a power. 8 But if there is a stipu- 
 lation in the deed which makes it fraudulent in law, the 
 court will not look to the circumstances of the case to 
 ascertain whether it can ever become operative. 7 It is 
 
 1 Ex parte Conway, 12 Ark. 302 ; Ward v. Tingley, 4 Sandf. Ch. 476 ; 
 Hoffman v. Mackall, 5 Ohio St. 124. 
 
 2 Kellogg v. Slauson, 11 N. Y. 302 ; s. c. 15 Barb. 56. 
 
 3 Watkins v. Wallace, 19 Mich. 57. 
 
 4 Kellogg v. Slauson, 11 1ST. Y. 302; s. C. 15 Barb. 56; Brigham v. 
 Tillinghast, 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. 6 Eyre v. Beebe, 28 How. Pr. 333. 
 
 8 Van Nest v. Yoe, 1 Sandf. Ch. 4. 
 
 * Boardman v. Halliday, 10 Paige, 223 ; Sheldon v. Dodge, 4 Den. 217. 
 24 
 
368 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 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 pro- 
 vides. 1 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 con- 
 strued are admitted to be lawful. 2 
 
 Rule of Construction. — The safe rule of construc- 
 tion is to regard every assignment which operates to delay 
 creditors for any purpose whatever not distinctly calcu- 
 lated to promote their interests, as contrary to the policy 
 of the statute. 3 
 
 Law of State where Made. — The fact that an instru- 
 ment 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 violate every 
 principle of governmental independence. Lawful acts 
 done within one State can not be made unlawful by pro- 
 visions having no authority beyond the territory of the 
 State adopting them. If no assignment 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 vio- 
 
 i Grover v. Wakeman, 11 Wend. 187 ; s. c. 4 Paige, 23 ; Mead v. 
 Phillips, 1 Sandf. Ch. 83. 
 
 » Nicholson v. Leavitt, 4 Sandf. 252 ; s. o. 6 N. Y. 510 ; s. c. 10 N. 
 Y. 591. 8 Grover v. Wakeman, 11 Wend. 187 ; s. C. 4 Paige, 23. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 369 
 
 lates 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 exter- 
 nal or foreign policy. 1 
 
 Contemporaneous Circumstances. — It is not sufficient 
 to invalidate an assignment that the debtor at the time of 
 making it is embarrassed, 2 or executes it voluntarily, 3 or 
 without the request or knowledge of the creditors. 4 It is 
 not necessary that the creditors shall be consulted, or that 
 the fact shall appear upon the face of an assignment. 5 An 
 assignment may convey all the debtor's property, 6 but will 
 not be void if it does not do so. 7 An assignment by a 
 firm need not convey the separate estates of the partners. 8 
 
 Solvent Debtor. — As assignments for the benefit of 
 creditors are generally made by insolvent debtors, it is not 
 unfrequently said that such dispositions of property can 
 be made only by that class of persons. But this doctrine 
 has no foundation in principle. These assignments are in 
 their nature simple trusts for the payment of debts. The 
 power to create such trusts is not peculiar to insolvent 
 
 1 Watkins v. Wallace, 19 Mich. 57 ; Frink v. Buss, 45 N. H. 325. 
 
 8 Layson v. Rowan, 7 Eob. (La.) 1. 
 
 3 Layson v. Rowan, 7 Rob. (La.) 1. 
 
 *Reinhard v. Bank of Ky., 6 B. Mon. 252. 
 
 - Brashear v. West, 7 Pet. 608 ; Dance v. Seaman, 11 Gratt. 778. 
 
 6 Layson v. Rowan, 7 Rob. (La.) 1. 
 
 ' Meeker v. Sanders, 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 ; Eicks v. Copeland, 53 Tex. 581 ; vide Smith v. 
 Woodruff, 1 Hilt. 462. When a statute requires that it shall convey all, 
 it is sufficient if the deed by the terms of the law where it is made con- 
 veys all. Frink v. Buss, 45 N. H. 325 ; Watkins v. Wallace, 19 Mich. 57. 
 
 8 Blake v. Faulkner, 18 Ind. 47 ; Garner v. Frederick, 18 Ind. 507 ; 
 Guerin v. Hunt, 6 Minn. 375 ; s. c. 8 \Wxm. 477. Contra, Simmons v. 
 Curtis, 41 Me. 373 ; Derry Bank v. Davis, 44 N. H. 548. 
 
370 ASSIGNMENTS FOE THE BENEFIT OF CREDITORS. 
 
 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 doubtful except in case 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 credi- 
 tors. 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 inferred 
 from one condition of the debtor any more than from the 
 other. 1 
 
 Legal Rights. — 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 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 indulgence, or whether they 
 will pursue their remedy for the collection of their debts. 
 
 1 Ogden v. Peters, 21 N. Y. 23 ; s. o. 15 Barb. 560 ; Angell v. Rosen- 
 berg, 12 Mich. 241. Contra, Van Nest v. Yoe, 1 Sandf. Ch. 4 ; Planck v. 
 Schermerhorn, 3 Barb. Ch. 644 ; Burt v. McKinstry, 4 Minn. 204 ; in re 
 Randall & Sunderland, 3 B. R. 18 ; S.C.2L. T. B. 69 ; S. c. 1 Deady, 557. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 371 
 
 If the real object of the debtor, therefore, is to gain time, 
 to prevent the speedy sale and conversion which an exe- 
 cution would inevitably accomplish, and to protect his 
 interests in the surplus 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. 1 
 
 To Prevent a Sacrifice. — Where the property of the 
 debtor is insufficient to pay his debts, the desire to protect 
 it from sacrifice and have it realize 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 harmony with both, and exempt from the charge of 
 fraud. 2 But where the property at the time of the assign- 
 ment is much more than sufficient to satisfy all demands, 
 the accomplishment of this object can only be at the 
 expense 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 sacrifice at the expense of his creditors. 
 The latter have the right to demand their debts in full 
 without delay where the assets of the debtor are sufficient 
 for that purpose. 3 The true rule, therefore, is that the 
 intent to avoid a sacrifice will invalidate an assignment 
 when the sacrifice is sought to be prevented by the debtor 
 
 1 Van Nest v. Yoe, 1 Sandf. Ch. 4 ; Planck v. Schermerhorn, 3 Barb. 
 ■ Ch. 644 ; Knight v. Packer, 12 N. J. Eq. 214 ; London v. Parsley, 7 Jones 
 
 (N. C.) 313 ; Burt v. McKinstry, 4 Minn. 204 ; Lehmer v. Herr, 1 Duvall, 
 360 ; Holmberg v. Dean, 21 Kans. 73 ; Gardner v. Commercial Bank, 95 
 111. 298. 
 
 2 Angell v. Bosenburg, 12 Mich. 241 ; Burt v. McKinstry, 4 Minn. 204 ; 
 Ely v. Cook, 18 Barb. 612. ' Burt v. McKinstry, 4 Minn. 204. 
 
372 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 himself so as to enable him to realize something by way 
 of a surplus or otherwise, 1 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. 2 
 
 Burden of Proving Solvency. — The burden of prov- 
 ing the solvency of the debtor rests upon the creditor who 
 assails the assignment. 3 A mere nominal difference be- 
 tween 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. 4 Where the excess of assets is so unrea- 
 sonably large as to force the conclusion that the assign- 
 ment 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 unreason- 
 ableness of the excess must depend upon a variety of cir- 
 cumstances, amongst which the convertibility of the assets 
 into money is the most important. 5 
 
 Debtor's Belief. — The debtor's belief that he is sol- 
 vent is only proper evidence to consider in determining 
 the intent with which the assignment is made. 6 It is 
 
 1 Rokenbaugh v. Hubbell, 5 Law Rep. (N. S.) 95 ; s. C. 15 Barb. 563, 
 note ; Angell v. Rosenburg, 12 Mich. 241. 
 
 8 Rokenbaugh v. Hubbell, 5 Law Rep. (N. S.) 95 ; s. c. 15 Barb. 563, 
 note ; Angell v. Rosenburg, 12 Mich. 241. 
 
 8 Kellogg v. Slauson, 11 N. Y. 302 ; s. c. 15 Barb. 56 ; Haven v. 
 Richardson, 5 N. H. 113. 
 
 4 Livermore v. Northrop, 44 N. T. 107 ; Guerin v. Hunt, 8 Minn. 477 ; 
 s. c. 6 Minn. 375. 
 
 6 Guerin v. Hunt, 8 Minn. 477 ; S. c. 6 Minn. 375. 
 
 Bates v. Ableman, 13 Wis. 644. Contra, Van Nest v. Toe, 1 Sandf. 
 Ch. 4 ; Baldwin v. Buckland, 11 Mich. 389 ; Burt v. McKinstry, 4 Minn. 
 204. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 373 
 
 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 belief. That 
 might approach very near to a certainty and thus justify 
 the inference, 1 but a belief that a surplus of only the most 
 trifling character will remain, while without an assign- 
 ment the property will be so sacrificed that a large portion 
 of his debts will remain unpaid, furnishes very slight if 
 any evidence of fraud. 2 The debtor may believe himself 
 solvent, and yet have so much doubt upon the subject, 
 from the uncertain valuation of his property, and par- 
 ticularly of that part of it which consists of choses in action, 
 and the representation of his friends, that he may honestly 
 suppose that an assignment will prove beneficial to his 
 creditors. 3 He may also suppose that his property is suffi- 
 cient 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 competing 
 creditors, that it will become inadequate to satisfy all his 
 debts. Under such a supposition and in such circum- 
 stances an assignment will be valid. 4 If, moreover, he is 
 at the time unable to pay his debts according 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 
 
 1 Ogden v. Peters, 21 N. Y. 23 ; S. c. 15 Barb. 560 ; Angell v. Kosen- 
 burg, 12 Mich. 241. v 2 Bates v. Ableman, 13 Wis. 644. 
 
 8 Ogden v. Peters, 21 N. Y. 23 ; s. c. 15 Barb. 560 ; Angell v. Eosen- 
 burg, 12 Mich. 241 ; Ely v. Cook, 18 Barb. 612. 
 
 4 Ogden v. Peters, 15 Barb. 560 ; s. c. 21 N. Y. 23 ; Bokenbaugh v. 
 Hubbell, 5 Law Bep. (N. S.j 95 ; s. c. 15 Barb. 563, note ; Bates v. Able- 
 man, 13 Wis. 644; Angell v. Bosenburgh, 12 Mich. 241. 
 
374 ASSIGNMENTS FOE THE BENEFIT OF CREDITORS. 
 
 can rightfully make an assignment. 1 Even the belief that 
 he is solvent when in fact v he is not s6 will not invalidate 
 an assignment if it is made in good faith. 2 
 
 Selection of Assignee. — The debtor may select the 
 assignee. 3 The assignee may be a creditor 4 or a joint 
 debtor. 5 He need not be a creditor. 6 He may be a 
 relative. 7 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 control, 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. 8 A corporation may 
 select its president. 9 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 in active operation, 10 
 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 
 
 1 Savery v. Spaulding, 8 Iowa, 239. 
 
 8 Savery v. Spaulding, 8 Iowa, 239. Contra, Van Nest v. Yoe, 1 Sandf. 
 Ch. 4; Burt v. McKinstry, 4 Minn. 204. 
 
 8 Wilt v. Franklin, 1 Binn. 502 ; Mcholls v. McEwen, 17 ST. Y. 22 ; 
 S. c. 21 Barb. 65 ; vide Burd v. Smith, 4 Dall. 76. 
 
 4 Ex parte Conway, 12 Ark. 302; Wooster v. Stanfleld, 11 Iowa, 128; 
 Prink v. Buss, 45 N. H. 325 ; Schultz v. Hoagland, 85 ST. Y. 464. 
 
 6 Wooster v. Stanfleld, 11 Iowa, 128. 
 
 • Wilt v. Franklin, 1 Binn. 502 ; U. S. Bank v. Huth, 4 B. Mon. 423 ; 
 Repplier v. Buck, 5 B. Mon. 96. 
 
 1 Winchester v. Crandall, 1 Clarke, 371 ; Baldwin v. Buckland, 11 
 Mich. 389 ; Schultz v. Hoagland, 85 N. Y. 464. 
 
 8 Sewall v. Russell, 2 Paige, 175. 9 Pope v. Brandon, 2 Stew. 401. 
 
 " Robins v. Embry, 1 S. & M. Ch. 207 ; Vansands v. Miller, 24 Conn. 
 180 ; vide Planck v. Schermerhorn, 3 Barb. Ch. 644. 
 
ASSIGNMENTS FOR THE BENEFIT OP CREDITORS. 375 
 
 and direct the administration of the whole trust fund, and 
 therefore renders the assignment void. 1 
 
 Assignee's Qualifications. > — Although a failing 
 debtor may select his own trustee, he has no right to vest 
 his estate in improper 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 rea- 
 sonable assurance to the creditors that the fund will be 
 safe in his hands. 2 The assignee must be a man qualified 
 and competent to discharge the duties of the trust which 
 he is to assume, and of sufficient character and pecuniary 
 ability to afford the assurance that the trust will be faith- 
 fully and honorably administered. 3 To prevent abuse of 
 the right of selection, and to avoid its being made a con- 
 venient engine of fraud, the utmost good faith is required 
 of the debtor. The selection must be made with refer- 
 ence to the interests of the creditors, rather than that of 
 the debtor. Hence, if the assignee is so deficient in age, 
 health, 4 business capacity, 5 or standing, pecuniary respon- 
 sibility, 6 or character for integrity, 7 that a prudent man 
 honestly looking to the interests of the creditors alone 
 would not be likely to 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 
 
 1 Robins v. Embry, 1 S. & M. Ch. 207. 
 
 2 Reed v. Emery, 8 Paige, 417. 
 
 3 Cram v. Mitchell, 1 Sandf. Ch. 251. 
 
 4 Currie v. Hart, 2 Sandf. Ch. 353 ; Cram v. Mitchell, 1 Sandf. Ch. 251. 
 6 Cram v. Mitchell, 1 Sandf. Ch. 251 ; Guerin v. Hunt, 6 Minn. 375 ; 
 
 s. C. 8 Minn. 477 ; Walker v. Adair, 1 Bond, 158. 
 
 6 Reed v. Emery, 8 Paige, 417 ; Haggarty v. Pittman, 1 Paige, 298 ; 
 Connah v. Sedgwick, 1 Barb. 210 ; Angell v. Rosenburg, 12 Mich. 241 ; 
 Jennings v. Prentice, 39 Mich. 421. 
 
 ' Clark v. Groom, 24 111. 316 ; Holmberg v. Dean, 21 Kans. 73. 
 
376 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 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, 1 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, 2 or that there is 
 an intention to place the property beyond the reach of the 
 creditors. 3 
 
 Non-residence, 4 blindness, 5 want of learning, 6 conflicting 
 interests, 7 and insolvency, 8 are regarded as disqualifications. 
 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 responsibility, or to any state 
 of pecuniary embarrassment likely to deprive the creditors 
 of this security. 9 A subsequent insolvency is not sufficient, 
 for it must be an insolvency existing at the time of the 
 
 1 Lehmer v. Herr, 1 Duvall, 360. 
 
 2 Angell v. Rosenburg, 12 Mich. 241. 
 
 8 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. Feers v. Lyon, 21 Conn. 604. 
 
 4 Cram v. Mitchell, 1 Sandf. Ch. 251 ; Cox v. Piatt, 32 Barb. 126; s. 
 o. 19 How. Pr. 121. » Cram v. Mitchell, 1 Sandf. Ch. 251. 
 
 6 Cram v. Mitchell, 1 Sandf. Ch. 251 ; Guerin v. Hunt, 6 Minn. 375 ; 
 S. C. 8 Minn. 477. ' Hays v. Doane, 11 N. J. Eq. 84. 
 
 8 Angell v. Rosenburg, 12 Mich. 241 ; Holmberg v. Dean, 21 Kans. 73. 
 
 9 Angell v. Rosenburg, 12 Mich. 241. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 377 
 
 execution of the assignment. 1 The insolvency of the 
 assignee must, however, be known to the debtor in order 
 to invalidate the assignment. 2 His general reputation in 
 the neighborhood where he resides, and among men whose 
 dealings and interest prompt them to observation and 
 inquiry, may be shown for the purpose of proving such 
 knowledge. 3 The fact thot the assignee is required to 
 give bond for the faithful performance of the trust does 
 not relieve the debtor from the obligation of exercising 
 prudence in making the selection. 4 
 
 Merely a Badge. — The existence of disqualifications 
 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 transaction. 5 Thus, in the 
 case of insolvency, the high character of the assignee for 
 integrity and business capacity may sometimes compensate 
 in a great measure, if not entirely, for his want of pecu- 
 niary means, and afford nearly, 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. 8 
 
 Agreement not to Record. — An agreement after the 
 execution of an assignment not to put it on record for a 
 few days does not vitiate the assignment. The fact con- 
 
 1 Jackson v. Cornell, 1 Sandf. Ch. 348. 
 
 2 Browning v. Hart, 6 Barb. 91. 
 
 3 Angell v. Bosenburg, 12 Mich. 241. 
 4 Holmbergv. Dean, 21 Kans. 73. 
 
 5 Beed v. Emery, 8 Paige, 417 ; Wilson v. Ferguson, 10 How. Pr. 175 ; 
 Pearce v. Beach, 12 How. Piv404 ; Clark v. Groom, 24 111. 316 ; Guerin 
 v. Hunt, '6 Minn. 375 ; s. c. 8 Minn. 477 ; Angell v. Bosenburg, 12 Mich. 
 
 241. 
 
 6 Angell v. Bosenburg, 12 Mich. 241 ; Pearce v. Beach, 12 How. Pr. 
 
 404 ; Clark v. Groom, 24 111. 316. 
 
378 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 nected 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. 1 
 
 Change of Possession. — It is not necessary that a 
 change of possession should accompany the transfer. 2 The 
 assignee may, xor his own accommodation, permit the 
 debtor to remain in possessioL, especially if the creditors 
 consent. 4 The retention of possession is, however, a badge 
 of fraud. 5 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 
 engagement. 6 Mere expectation on the part of the debtor 
 
 1 Hoopes v. Knell, 31 Md. 550 ; M'Kinney v. Ehoads, 5 Watts, 343 ; 
 in re John C. Walker, 18 N.-B. R. 56 ; vide Hafner v. Irwin, 1 Ired. 490. 
 
 8 Mitchell v. Willock, 2 W. & S. 253 ; Fitler v. Maitland, 5 W. & S. 
 307 ; Dallam v. Fitler, 6 W. & S. 323 ; Cameron v. Montgomery, 13 S. 
 & R. 128 ; Vernon v. Morton, 8 Dana, 247 ; Walters v. Whitlock, 9 Fla. 
 86 ; Strong v. Carrier, 13 Conn. 319 ; Osborne v. Tuller, 14 Conn. 529 ; 
 Klapp v. Shirk, 13 Penn. 589 ; Caldwell v. Rose, 1 Smith, 190 ; Caldwell 
 v. Williams, 1 Ind. 405 ; Moore v. Smith, 35 Vt. 644 ; State v. Benoist, 
 37 Mo. 500. Contra, Hower v. Geesaman, 17 S. & R. 251 ; Dewey v. 
 Adams, 4 Edw. Ch. 21 ; Hart v. Gedney, 1 Law Rep. 69 ; Ingraham v. 
 Wheeler, 6 Conn. 277. 
 
 8 Vredenburg v. White, 1 Johns. Cas. 156. 
 
 4 Scolt v. Ray, 35 Mass. 360. 
 
 5 Van Nest v. Yoe, 1 Sandf. Ch. 4; Hitchcock v. St. John, 1 Hoff. 
 511 ; Forbes v. 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, 28 Mass. 362 ; Vernon v. Morton, 8 Dana, 247 ; Pitts 
 v. Viley, 4 Bibb, 446 ; Cummings v. McCullough, 5 Ala. 324 ; Byrd v. 
 Bradley, 2 B. Mon. 239; Strong v. Carrier, 13 Conn. 319; Wright v. 
 Linn, 16 Tex. 34 ; Flanigan v. Lampman, 12 Mich. 58 ; Terry v. Butler, 
 43 Barb. 395 ; Van Hook v. Walton, 28 Tex. 59 ; Stewart v. Kerrison, 3 
 Rich. (N. S.) 266 ; Higby v. Ayres, 14 Kans. 331. 
 
 ' Browning v. Hart, 6 Barb. 91 ; Nicholson v. Leavitt, 4 Sandf. 252 ; 
 s. C. 6 N. Y. 510 ; s. c. 10 N. Y. 591 ; Ogden v. Peters. 15 Barb. 560 ; 
 s. c. 21 N. Y. 23 ; Rockenbaugh v. Hubbell, 5 Law Rep. (N. S.) 95 ; s. C. 
 15 Barb. 563, note ; Pearson v. Rockhill, 4 B. Mon. 296 ; Tompkins v. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 379 
 
 that he will be employed is not sufficient to invalidate an 
 assignment. 1 Such employment is, however, a badge of 
 fraud. 3 In all cases where the debtor is left in possession, 
 it is imperative for the party supporting the validity of 
 the transaction to prove that the assignment was executed 
 in good faith and without any intent to defraud. 3 If there 
 is no change in the course of the business after the exe- 
 cution of the assignment, it is a badge of fraud. 4 If there 
 is an agreement at the time of the execution of the assign- 
 ment that the debtor may lease the property, and this 
 agreement is carried out, the assignment will be deemed 
 fraudulent. 5 » 
 
 Debtor's Advice. — 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, 
 
 Wheeler, 16 Pet. 106 ; Casey v. Janes, 37 N. Y. 608 ; Gordon v. Cannon, 
 18 Gratt. 387 ; Beamish v. Conant, 24 How. Pr. 94; Wilbur v. Fraden- 
 burgh, 52 Barb. 474 ; Fitler v. Maitland, 3 W. & S. 307 ; Van Hook v. 
 Walton, 28 Tex. 59 ; Blow v. Gage, 44 111. 208 ; Baldwin v. Buckland, 11 
 Mich. 389; Deckard v. Case, 5 Watts, 22; Vernon v. Morton, 8 Dana, 
 247 ; Shattock v. Freeman, 42 Mass. 10 ; Forbes v. Scannell, 13 Cal. 242 ; 
 Savery v. Spaulding, 8 Iowa, 239 ; Hubbard v. Winborne, 4 Dev. & Bat. 
 137 ; Hall v. Wheeler, 13 Ind. 371 ; Olney v. Tanner, 10 Fed. Rep. 171. 
 
 1 Ogden v. Peters, 15 Barb. 560 ; S. c. 21 N. Y. 23 ; Nicholson v. 
 Leavitt, 4 Sandf. 252 ; s. c. 6 N. Y. 510 ; s. O. 10 N. Y. 591. In Con- 
 necticut 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 v. Sedgwick, 1 Barb. 210 ; Linn v. Wright, 18 Tex. 317 ; 
 Guerin v. Hunt, 6 Minn. 375 ; s. c. 8 Minn. 477. 
 
 3 Mead v. Phillips, 1 Sandf. Ch. 83 ; Cram v. Mitchell, 1 Sandf. Ch. 251. 
 
 4 Wilson v. Ferguson, 10 How. Pr. 175 ; Connah v. Sedgwick, 1 Barb. 
 210 ; Cummings v. McCullough, 5 Ala. 324 ; Adams v. Davidson, 10 ST. 
 Y. 309 ; Pine v. Rikert, 21 Barb. 469 ; Moffat v. Ingham, 7 Dana, 495 ; 
 Smith v. Leavitts, 10 Ala. 92. 
 
 6 Dobson v. Kerr, 12 N. Y. Supr. 643. 
 
380 ASSIGNMENTS FOR THE BENEFIT OF 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. 1 
 
 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. 2 A personal trust to 
 the assignee to terminate upon his death or resignation, 
 with full power to resign, renders the assignment fraudu- 
 lent. 3 But a conveyance to the assignee and his succes- 
 sors in trust does not give the power to appoint the suc- 
 cessors. It merely refers to such persons as may lawfully 
 succeed the assignee in case of resignation, removal or 
 death. 4 When a power of revocation is reserved to the 
 debtor, the necessary inference is that the assignment 
 is made with the intent to delay, hinder or defraud credi- 
 tors, for its only effect is to mask the property, 5 even 
 though it is only to be exercised in case any creditor 
 refuses to assent to the assignment. 6 A power to make 
 loans on the security of the estate is equivalent to a power 
 of revocation. 7 
 
 1 Eyre v. Beebe, 28 How. Pr. 333. 
 
 2 Whallon v. Scott, 10 Watts, 237 ; vide Hafner v. Irwin, 1 Ired. 490 ; 
 Dana v. Bank of U. S., 5 W. & S. 223 ; Planters and Merchants' Bank 
 v. Clarke, 7 Ala. 765 ; Janney v. Barnes, 11 Leigh, 100 ; Sheppards v. 
 Turpin, 3 Gratt. 373. 
 
 8 Smith v. Hurst, 10 Hare, 30; s. c. 22 L.J. Ch. (N. S.) 289; S.c. 17 
 Jur. 30 ; s. o. 15 Eng. L. & Eq. 520. 
 
 4 Langdon v. Thompson, 25 Minn. 509. 
 
 5 Biggs v. Murray, 15 Johns. 571; s. c. 2 Johns. Ch. 565; Cannon v. 
 Peebles, 4 Ired. 204 ; s. c. 2 Ired. 449. 
 
 « Hyslop v. Clark, 14 Johns. 458. 
 1 Sheppards v. Turpin, 3 Gratt. 373. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 381 
 
 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 instrument and appear on its 
 face, in order to rebut the conclusive presumption of a 
 fraudulent intent, which would otherwise arise. 1 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 of such creditors should institute 
 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 of preferring other 
 creditors to him, and no prudent man would subject him- 
 self 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 
 
 1 Grover v. Wakeman, 11 Wend. 187 ; s. c. 4 Paige, 23 ; Harvey v. 
 Mix, 24 Conn. 406 ; Burbank v. Hammond, 3 Sumner, 429. 
 
382 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 them, and must necessarily hinder and delay them in the 
 collection of their debts. 1 So long, therefore, as the 
 debtor is permitted to make an assignment of his pro- 
 perty in trust for the payment of his debts without con- 
 sulting his creditors on the subject, it is absolutely neces- 
 sary for the protection of their rights that the equitable 
 interests in the assigned property shall be fixed and 
 determined by the assignment itself. 2 The limitation of 
 the right to declare the uses to a certain period does not 
 obviate the objection. The law requires that the assign- 
 ment must itself fix and determine the rights of the credi- 
 tors 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. 3 
 
 Subsequent Schedules. — The effect of a provision 
 that the debtor may at a future period prepare and annex 
 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 consequently renders 
 the deed fraudulent. 4 Even if the schedules are prepared 
 and annexed subsequently, the assignment can not be con- 
 sidered valid even from the time when such schedules are 
 annexed. If the assignment is fraudulent and void when 
 executed, it can not be rendered valid and operative by 
 "any subsequent act of the debtor performed in the execu- 
 tion of a fraudulent power. 5 
 
 1 Boardman v. Halliday, 10 Paige, 223 ; Barnum v. Hempstead, 7 
 Paige, 568 ; Gazzatn v. Poyntz, 4 Ala. 374. 
 
 " Averill v. Loucks, 6 Barb. 470 ; Mitchell v. Styles, 13 Penn. 306. 
 
 8 Averill v. Loucks, 6 Barb. 470. 4 Averill v. Loucks, 6 Barb. 470. 
 
 6 Averill v. Loucks, 6 Barb. 470 ; Mitchell v. Styles, 13 Penn. St. 306 ; 
 vide Hotop v. Neidig, 17 Abb. Pr. 332. 
 
assignments for the benefit of creditors. 383 
 
 Power to give Subsequent Preferences can nqt 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. 1 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. 2 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 pay- 
 ment. 3 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 instrument does not vitiate it. 4 
 
 Fictitious Debts — An appropriation of the property 
 to the payment of debts not owing by the assignor and 
 not contracted on his account, 5 or for a larger sum than is 
 
 1 Barnum v. Hempstead, 7 Paige, 568 ; Boardman v. Halliday, 10 
 Paige, 223 ; Strong v. Skinner, 4 Barb. 546 ; Sheldon v. Dodge, 4 Denio, 
 217 ; Gazzam v. Poyntz, 4 Ala. 374 ; Smith v. Hurst, 10 Hare, 30 ; s. c. 
 15 Eng. L. & Eq. 520 ; s. C. 17 Jur. 30 ; 22 L. J. Ch. QS. S.) 289. 
 
 3 Sheldon v. Dodge, 4 Denio, 217. 
 
 8 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 v. 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 v. 
 Peebles, 2 Ired. 449 ; s. c. 4 Ired. 204. 
 
 4 Hall v. Wheeler, 13 Ind. 371. 
 
 6 Henderson v. Haddon, 12 Rich. Eq. 393 ; Bank v. Talcott, 22 Barb. 
 550 ; Overton v. Holinshade, 5 Heisk. 283. 
 25 
 
384 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 due, 1 ,to the prejudice of his creditors, is evidence of fraud. 
 This will not, however, make the assignment void unless 
 the assignee participate in the fraud. 2 No creditor is con- 
 cluded by taking under the assignment from impeaching 
 any of the debts attempted to be secured by it, and show- 
 ing fraud and collusion in such of them as may stand in 
 his way and the payment of which would operate to his 
 prejudice. 3 The impeached 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. 4 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, 3 nor is a 
 court authorized to judicially know that the person named 
 in the schedule is the assignor although the names are 
 identical. 6 Eelationship does not authorize the conclusion 
 that a debt is not a fair one in the absence of evidence 
 that it is fraudulent. A direction to the assignee to pay 
 
 1 Bank v. Fink, 7 Paige, 87 ; American Exchange Bank v. Webb, 15 
 How. Pr. 193 ; s. c. 36 Barb. 291 ; Angell v. Bosenburg, 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. 
 
 ! Macintosh v. Corner, 33 Md. 598 ; Hempstead v. Johnston, 18 Ark. 
 123 ; Hardcastle v. Fisher, 24 Mo. 70 ; Harris v. De Graffehreid, 11 Ired. 
 89 ; Pinneo v. Hart, 30 Mo. 561 ; Nightingale v. Harris, 6 B. I. 321 ; Starr 
 v. Dugan, 22 Md. 58 ; Woodward v. Marshall, 39 Mass. 468 ; Craft v. 
 Bloom, 59 Miss. 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 Exchange Bank v. Webb, 15 How. Pr. 
 193 ; s. o. 26 Barb. 291 ; Mead v. Phillips, 1 Sandf. Ch. 83 ; Jacobs v. 
 Kemsen, 36 N. Y. 668; Livermore v. Northrop, 44 N. Y. 107; Terry v. 
 Butler, 43 Barb. 395 ; Lehmer v. Herr, 1 Duvall, 360 ; Stone v. Marshall, 
 7 Jones (N. C.) 300. 
 
 8 Macintosh v. Corner, 33 Md. 598 ; Starr v. Dugan, 22 Md. 58 ; Hard- 
 castle v. Fisher, 24 Mo. 70 ; Keiff v. Eshleman, 52 Md. 582. 
 
 4 Hardcastle v. Fisher, 24 Mo. 70. 6 Bank v. Talcott, 22 Barb. 550. 
 
 8 Blow v. Gage, 44 111. 208. ' ' Layson v. Bowan, 7 Bob. (La.) 1. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 385 
 
 the debts of the assignor, though equivocal, means debts 
 owing by him. 1 Although an assignment provides for the 
 payment of a fee to the attorney for his services in advis- 
 ing and preparing it, yet that is not sufficient to sustain it 
 if it provides for the payment of a fictitious debt. 2 
 
 Real Debts. — A provision may be made for the pay- 
 ment of a note given for an obligation to which the statute 
 of frauds would have been a good defense, for it is optional 
 with the debtor whether he will set up the defense or 
 not, 3 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 demand as against other creditors. 
 
 Debtor's Wife. — Whenever the debtor has received 
 or borrowed the property of his wife, under circumstances 
 which in a court of equity would be regarded as creating 
 a debt to her from him, and as entitling her to be con- 
 sidered 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 tempta- 
 tion which may exist in such cases for the perpetration of 
 frauds for the benefit of the debtor's family, makes it 
 proper to scrutinize very closely and carefully all transac- 
 tions 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, 
 
 i Pine v. Eikert, 21 Barb. 469. s Craft v. Bloom, 59 Miss. 
 
 8 Liverniore v. Northrop, 44 N. Y. 107. 
 4 Nightingale v. Harris, 6 E. I. 321. 
 
386 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 before it is allowed. But if honest, the debt of the wife 
 is none the less sacred because it is due from her husband. 1 
 A provision may also be made for the payment of a mort- 
 gage for the purpose of restoring her inchoate right of 
 dower in the mortgaged premises discharged of the mort- 
 gage. As between the creditors themselves the mort- 
 gaged 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 con- 
 sideration as their demands. 2 
 
 Sureties. — 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. 3 The holders and owners of the claims 
 designed to be protected may compel an appropriation of 
 the assigned property to their payment, and consequently 
 the provision has the same effect as if the holders were 
 named the cestuis que trust in the instrument. 4 The fact 
 that the liability is contingent does not constitute a valid 
 objection, for an assignment to protect a contingent lia- 
 bility 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 before 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 
 
 1 McCartney v. Welch, 44 Barb. 271 ; S. o. 51 N. Y. 626 ; Planck v. 
 Schermerhorn, 3 Barb. Ch. 644 ; Jaycox v. Caldwell, 51 ST. T. 395 ; s. C. 
 37 How. Pr. 240. 2 Dimon v. Delmonico, 35 Barb. 554. 
 
 3 Keteltas v. Wilson, 36 Barb. 298 ; s. c. 23 How. Pr. 69 ; Copeland v. 
 Weld, 8 Me. 411 ; Duval 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. 339 ; Bank v. Cox, 6 Me. 395 ; Cunning- 
 ham V. Freeborn, 11 Wend. 241 ; s. c. 1 Edw. 256 ; S. c. 3 Paige, 537. 
 
 4 Griffin v. Marquardt, 21 N. Y. 121 ; s. C. 17 N". Y. 28. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 387 
 
 is disposed of distribute the balance. 1 A direction to the 
 assignee to indemnify a surety is a direction to pay the 
 obligation as it becomes due, for in no other way can the 
 guarantor be fully protected and saved harmless from 
 the payment thereof. 2 
 
 Secured Debts. — A provision for the payment of a 
 debt which has been previously secured by either a judg- 
 ment 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 pro- 
 vision for its payment will not render the assignment 
 void. 3 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 pro- 
 perty. 4 An assignment may provide for the payment of 
 a debt which is secured by a lien on the homestead, 
 although the homestead is not conveyed to the assignee. 5 
 Provision may also be made for the payment of an attach- 
 ing creditor, provided his attachment is sustained. The 
 fact that it is conditional and contingent is immaterial, for 
 it could not be otherwise when the validity of the attach- 
 ment is questioned. 6 It is proper for the assignment to set 
 forth the securities held by the secured creditor, but the 
 
 1 Bead v. Worthington, 9 Bosw. 617; Loeschigk v. Jacobson, 26 How. 
 Pr. 526 ; s. c. 2 Robt. 645. 
 
 a Loeschigk v. Jacobson, 26 How. Pr. 526 ; S. C. 2 Robt. 645. 
 
 3 Strong v. Skinner, 4 Barb. 546 ; Hastings v. Palmer, 1 Clarke, 52 ; 
 Kruse v. Prindle, 8 Oregon, 158. 
 
 * Dimon v. Delmonico, 35 Barb. 554. * Ball v. Bowe, 49 Wis. 495. 
 
 6 Grant v. Chapman, 38 IS". Y. 293. 
 
388 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 omission of any reference to them is not inconsistent with 
 entire honesty and good faith. 1 A debt fully secured by 
 a mortgage may also be excluded. 3 
 
 Various Debts. — Provision may be made for the pay- 
 ment of an unsettled account, 3 or of notes which have been 
 purchased at a discount, 4 or of a bequest to the debtor, as 
 executor, to employ in business and pay the profit to others, 
 even though it is so employed by him. 5 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 contingent liability for the debtor, means sums of 
 money which shall thereafter become payable to them by 
 reason of such contingent liability. 6 A provision for a 
 debt of a firm due to another firm in which all or some of 
 the partners are interested, is valid, because partnerships 
 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 administered 
 as the assets of an association. 7 A provision can not be 
 made for the debts which the separate partners may have 
 against the firm before the firm creditors are paid. 8 A 
 
 1 Stern v. Fisher, 32 Barb. 198. 2 Cross v. Bryant, 3 111. 36. 
 
 "Reinhard v. Bank of Ky., 6 B.Mon. 252. 
 
 4 Powers v. Graydon, 10 Bosw. 630 ; s. c. 25 How. Pr. 512 ; Low v. 
 Graydon, 50 Barb. 414. « Tilford's Case, 8. Watts, 531. 
 
 6 Bead v. Worthington, 5 Bosw. 617 ; Brainard v. Dunning, 30 N. T. 
 211 ; Benedict v. Huntington, 32 N. Y. 219 ; Butt v. Peck. 1 Daly, 83 ; 
 Van Hook v. Walton, 28 Tex. 59. 
 
 ' Fanshawe v. Lane, 16 Abb. Pr. 71 ; vide Kayser v. Heavenrich, 5 
 Kansas 324. 8 Goddard v. Hapgood, 25 Vt. 351. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 389 
 
 note given to a former partner upon his withdrawal from 
 the firm may be provided for. 1 
 
 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 presumption of an 
 actual fraudulent design on the part of the debtors. 2 It is 
 a fraud upon the joint creditors for one partner to author- 
 ize his share of the property of the firm to be applied to 
 the payment of a debt for which neither he nor his prop- 
 erty 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 any consideration having reference to 
 the amount of capital contributed by each of the indivi- 
 dual partners. 3 
 
 When the separate property assigned by each partner 
 exceeds the amount of his separate debts, a direction that 
 separate debts shall be paid out of the partnership 
 
 1 Mattison v. Demarest, 4 Bobt. 161 ; Blow v. Gage, 44 111. 208 ; Smith 
 v. Howard, 20 How. Pr. 121. 
 
 » Wilson v. Eobertson, 21 N. Y. 587 ; s. c. 19 How. Pr. 350 ; Cox v. 
 Piatt, 32 Barb. 126 ; s. c. 19 How. Pr. 121 ; Lester v. Abbott, 28 How. 
 Pr. 488 ; S. c. 3 Bobt. 691 ; Knauth v. Bassett, 34 Barb. 31 ; Henderson 
 v. Haddon, 12 Bich. Eq. 393 ; Keith v. Fink, 47 111. 272 ; Buhl v. Phillips, 
 2 Daly, 45 ; Heye v. Bolles, 33 How. Pr. 266 ; s. c. 2 Daly, 231 ; French 
 v. Lovejoy, 12 N. H. 458 ; Kirby v. Schoonmaker, 3 Barb. Ch. 46 ; Hurl- 
 bert v. Dean, 2 Abb. Ap. 428 ; s. c. 2 Keyes, 97. In some cases it is held 
 that the appropriation is void but the assignment valid. Nicholson v. 
 Leavitt, 4 Sandf. 252 ; s. c. 6 N". Y. 510 ; s. c. 10 N. Y. 591 ; McCullough 
 v. Somerville, 8 Leigh, 415 ; Bead v. Baylies, 35 Mass. 497 ; Kemp v. 
 Carnley, 3 Duer, 1 ; Nye v. Van Husan, 6 Mich. 329 ; Lassell v. Tucker, 
 5 Sneed, 1 ; Gordon v. Cannon, 18 Gratt. 387. 
 
 a Wilson v. Eobertson, 21 N. Y. 587 ; S. o. 19 How. Pr. 350. 
 
390 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 property will not vitiate the assignment. 1 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. 3 Debts contracted in the name of 
 one of the partners may be shown to be in reality part- 
 nership debts. 3 Partnership property may be applied to 
 the payment of debts which are not partnership debts, but 
 for which all the partners are bound. 4 A direction that 
 the property shall be distributed among the creditors 
 according to their respective equities is good, for it con- 
 templates a distribution according to law. 5 If a partner- 
 ship is dissolved in good faith and one partner takes the 
 property and assumes the debts of the firm, he may sub- 
 sequently assign the property for the payment of his 
 individual creditors, 6 or of the creditors of any new firm 
 of which he may become a member. 7 An appropriation 
 of the firm property to the payment of individual debts is 
 not, it seems, a ground for setting aside the assignment at 
 the instance of an individual creditor, as he can not in 
 any manner be affected by it. 8 
 
 Separate Property to Firm Debts. — The rule that 
 the individual property must be first applied to the pay- 
 
 1 Van Nest v. Yoe, 1 Sandf. Ch. 4 ; Knauth v. Bassett, 34 Barb. 31 ; 
 Hollister v. Loud, 2 Mich. 309. 
 
 2 Hurlbert v. Dean, 2 Keyes, 97 ; s. c. 2 Abb. Ap. 428. Contra, Lester 
 v. Abbott, 28 How. Pr. 488 ; s. o. 3 Robt. 691. 
 
 » Cox v. Piatt, 32 Barb. 126 ; s. c. 19 How. Pr. 121 ; Read v. Baylies, 
 35 Mass. 497 ; Marks v. Hill, 15 Graft. 400 ; Barcroft v. Snodgrass, 1 
 Cold. 430. « Smith v. Howard, 20 How. Pr. 121. 
 
 6 Heckman v. Messinger, 49 Penn. 465 ; Maennel v. Murdock, 13 Md. 
 264 ; Coakley v. Weil, 47 Md. 277. 
 
 6 Robb v. Stevens, 1 Clarke, 192 ; Yearsley's Estate, 1 A. L. Reg. 636 ; 
 Marsh v. Bennett, 5 McLean, 117 ; Price v. De Ford, 18 Md. 489 ; vide 
 Heye v. Bolles, 2 Daly, 231 ; s. C. 33 How. Pr. 266. 
 
 ' Smith v. Howard, 20 How. Pr. 121. 
 
 8 Morrison v. Atwell, 9 Bosw. 503. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 391 
 
 ment 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 pay- 
 ment of the partnership as well as the individual debts, 
 and all that creditors can demand is that the property 
 shall be appropriated to the payment of debts, and it is no 
 fraud to pay one class instead of another. The debts pro- 
 vided for in an assignment 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. 1 
 The only right of the private creditor in such a case is to 
 compel the partnership creditors to resort first to the 
 partnership funds until they exhaust them. 
 
 Disposition of Surplus by Partners. — When an 
 assignment devotes the individual and partnership pro- 
 perty to the payment of the partnership debts, and pro- 
 vides for a distribution of the surplus among the separate 
 creditors, it should direct a distribution to be made accord- 
 ing to the respective rights of the separate creditors, for 
 an appropriation without such discrimination 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 
 
 1 OTSTeil v. Salmon, 25 How. Pr. 246 ; Kirby v. Sohoonmaker, 3 Barb. 
 Ch. 46 ; Van Eossum v. Walker, 11 Barb. 237 ; Eyre v. Beebe, 28 How. 
 Pr. 333 ; Pox v. Heath, 16 Abb. Pr. 163 ; s. c 21 'How. Pr. 384 ; Gadsden 
 v. Carson, 9 Rich. Eq. 252 ; Newman v. Bagley, 33 Mass. 570 ; French 
 V. Lovejoy, 12 N. H. 458 ; vide Jackson v. Cornell, 1 Sandf. Ch. 348. 
 
392 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 his property is in anywise bound before his own just debts 
 are satisfied. 1 Evidence may, however, be given to show 
 that there will be no surplus after the payment of the 
 partnership debts. 3 A direction to the assignee after the 
 payment of the partnership debts to pay all the private 
 and individual debts of each partner is valid, for an illegal 
 intent 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. 3 
 
 Equality. — Whenever a man becomes unable to pay 
 his debts, the law regards his property as of right belong- 
 ing to his creditors. 4 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 assignment in favor of all his 
 creditors equally is in conformity with the general policy 
 of the law. 5 One of the favorite maxims of the law is 
 that equality is equity; hence if there are no circum- 
 stances of fraud or mala fides attached to the transaction, 
 the law favors rather than discourages such an act on the 
 part of an unfortunate debtor. 6 By such a course he per- 
 forms an honest act, and discharges a moral duty of which 
 none can reasonably 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 
 
 1 Smith v. Howard, 20 How. Pr. 121 ; O'Neil v. Salmon, 25 How. Pr. 
 246 ; Kitchen v. Keinsky, 42 Mo. 427. 
 
 '' Turner v. Jayeox, 40 N. T. 470 ; S. 0. 40 Barb. 164. Contra, Smith 
 v. Howard, 20 How. Pr. 121. 
 
 3 Eyre v. Beebe, 28 How. Pr. 333. « Gere v. Murray, 6 Minn. 305. 
 
 • Albert v. Winn, 7 Gill. 446 ; S. 0. 5 Md. 66 ; s. 0. 2 Md. Ch. 169 ; 
 s. c. 2 Md. Ch. 42. 6 Malcom v. Hall, 9 Gill. 177. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 393 
 
 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 propor- 
 tion of the debtor's effects, to the prejudice of other 
 creditors. There is, therefore, no ground to impeach the 
 legality or fairness of such an assignment when it is made 
 in good faith. 1 
 
 Preferences. — By virtue of the absolute dominion 
 which a man has over his own property, he may, however, 
 give preferences in an assignment, but preferential assign- 
 ments are not encouraged. The law rather tolerates 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 expedi- 
 ency or justice to enlarge it or give it dangerous facilities. 3 
 The right to prefer, however, has never been considered 
 immoral or fraudulent. It was a privilege at common 
 law, and has not been abridged by the statute. Apart 
 
 1 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. 530 ; Vredenbergh v. 
 White, 1 Johns. Cas. 156 ; Pickstock v. Lyster, 3 M. & S. 371 ; King v. 
 Watson, 3 Price, 6 ; Nicoll v. Mumford, 4 Johns. Ch. 522 ; Vernon v. 
 Morton, 8 Dana, 247 ; Robins v. Embry, 1 S. & M. Ch. 207 ; Adams v. 
 Blodgett, 2 Woodb. & Min. 233 ; Fisher v. Dinwiddie, 12 B. Mon. 208 ; 
 Evans v. Jones, 11 Jur. (N. S.) 784; s. C. 34 L. J. Exch. 25 ; Halsey v. 
 Whitney, 4 Mason, 206 ; Hall v. Dennison, 17 Vt. 310. 
 
 2 Murray v. Riggs, 15 Johns. 571 ; s. o. 2 Johns. Ch. 565 ; Cunningham 
 v. Freeborn, 11 Wend. 241 ; s. c. 1 Edw. 256 ; s. c. 3 Paige, 537 ; Ameri- 
 can Exchange Bank v. Inloes, 7 Md. 380 ; Nicholls v. McEwen, 17 N. Y. 
 22 ; s. c. 21 Barb. 65 ; Stone v. Marshall, 7 Jones (N. C.) 300 ; Blow v. 
 Gage, 44 111. 208. 
 
 3 Estwick v. Caillaud, 5 T. R. 420 ; S. O. 2 Anst. 381 ; Cunningham v. 
 Freeborn, 11 Wend. 241; s. c. 1 Edw. 256; s. c. 3 Paige, 537; Ball v. 
 Bowe, 49 Wis. 495. 
 
394 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 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 payment of 
 debts with stipulations in favor of preferred creditors. 1 
 
 1 Beatty v. Davis, 9 Gill. 211 ; McColgan v. Hopkins, 17 Md. 395 ; 
 Tompkins v. Wheeler, 16 Pet. 106 ; Marbury v. Brooks, 7 Wheat. 556 ; 
 S. c. 11 Wheat. 78 ; Wilkes v. Ferris, 5 Johns. 335 ; Wynne v. Glidwell, 
 17 Ind. 446 ; Layson v. Rowan, 7 Rob. (La.) 1 ; Murray v. Riggs, 15 
 Johns. 571 ; S. c. 2 Johns. Ch. 565 ; Hatch v. Smith, 5 Mass. 42 ; Embry 
 v. Clapp, 38 Geo. 245 ; Stevens v. Bell, 6 Mass. 339 ; De Forrest v. Bacon, 
 
 2 Conn. 633 ; Jacobs v. Remsen, 36 1ST. Y. 668 ; Putnam v. Hubbell, 42 
 N. Y. 106; Cameron v. Montgomery, 13 S. & R. 128; Robinson v. 
 Rapelye, 2 Stew. 86 ; Wiley v. Collins, 11 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. 434 ; M'Cullough v. 
 Sommerville, 8 Leigh, 415 ; How v. Camp, Walk. Ch. 427 ; King v. Trice, 
 
 3 Ired. Eq. 568 ; ex parte Conway, 12 Ark. 302 ; U. S. Bank v. Huth, 4 
 B. Mon. 423 ; Merrick v. Henderson, Walk. 485 ; Cross v. Bryant, 3 111. 
 36 ; Smith v. Campbell, Rice, 352 ; Petrikin v. Davis, Morris, 296 ; Hol- 
 brook v. Baker, 4 Fla. 87 ; Hollister v. Loud, 2 Mich. 309 ; Kneeland v. 
 Cowles, 4 Chand. 46 ; Cooper v. McClun, 16 111. 435 ; U. S. v. Bank of 
 TJ. S., 8 Rob. (La.) 262 ; Hampton v. Morris, 2 Met. (Ky.) 336 ; Hemp- 
 stead v. Starr, 3 Day, 340; Hower v. Geesaman, 17 S. & 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 v. Congdon, 44 N. H. 48. 
 
 Vermont — Act of 1852, Passumpsic Bank v. 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, 30 Vt. 344. 
 
 Massachusetts — Wyles v. Beals, 67 Mass. 233 ;, Edwards v. Mitchell, 
 67 Mass. 239; Bowles v. Graves, 70 Mass. 117. In that State no assign- 
 ment is valid. Stanfleld v. Simmons, 78 Mass. 442. 
 
 Connecticut — Rev. Stat., title 14, ch. 4; Richmondville Manuf. Co. v. 
 Pratt, 9 Conn. 487 ; Goodell v. Williams, 21 Conn. 419 ; Beers v. Lyon, 
 21 Conn. 604. 
 
 New Jersey— Act Apr. 16, 1846; 1 R. S. 316, Dixon's Dig. 27; 
 Varnum v. Camp, 13 N. J. 326 ; Fairchild v. Hunt, 14 N. J. Eq. 367 ; 
 Knight v. Packer, 12 N. J. Eq. 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 v. Harlan, 12 N. J. Eq. 229. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 395 
 
 He may assign the whole of his property for the benefit 
 of a single creditor in exclusion of all others, or he may 
 distribute it in unequal proportions, either among a part 
 
 Pennsylvania — Purdon's Digest, 52; Law v. Mills, 18 Penn. 185; 
 Wiener v. Davis, 18 Penn. 331 ; Miners' National Bank's Appeal, 57 
 Penn. 193 ; Driesbach v. Becker, 34 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 Geo. 157 ; Cameron v. Scud- 
 der, 1 Geo. 204 ; Watkins v. Jenks, 24 Geo. 431 ; Ezekiel v. Dixon, 3 
 Geo. 146 ; Dawson v. Figuiero, 16 Geo. 610. 
 
 Alabama— Code, sees. 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. (S. & C.) 709; Dickson v. Rawson, 5 Ohio St. 219; 
 Floyd v. Smith, 9 Ohio St. 546; Harkraker v. Leiby, 4 Ohio St. 602; 
 Hull v. Jeffrey, 8 Ohio, 390 ; Harshman v. Lowe, 9 Ohio, 92 ; Mitchell v. 
 Gazzam, 12 Ohio, 315 ; Doremus v. O'Hara, 1 Ohio St. 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— Rev. Stat., ch. 63 ; Page v. Smith, 24 Wis. 368. 
 
 Iowa — Williams v. Gartrell, 4 Greene (Iowa) 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 prefer. Lamp- 
 son v. Arnold, 19 Iowa, 479. 
 
 California — All assignments are prohibited by the insolvent law — 
 Chever v. Hays, 3 Cal. 471, — although a third person intervenes, — Gros- 
 chen v. 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 v. 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, 5 Abb. Pr. 415. The same 
 prohibitions also extend to limited partnerships. 1 Rev. Stat. 766, §§ 20, 
 21 ; Fanshawe v. Lane, 16 Abb. Pr. 71 ; Greene v. Breck, 32 Barb. 73 ; 
 S. C. 10 Abb. Pr. 42. 
 
 The general effect of the State statutes is not to invalidate the assign- 
 ment, but to make it operate for the benefit of all. Law v. Mills, 18 Penn. 
 
396 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 or the whole of them. 1 A surviving partner 2 or a cor- 
 poration 3 may give a preference. 
 
 Incidental Effect to Defeat Others. — The mere fact 
 that the preference defeats all other creditors does not 
 affect the validity of an assignment. 4 A deliberate inten- 
 tion on the part of the debtor that certain creditors shall 
 not be paid out of the property assigned until a preferred 
 class shall be paid is not of itself a fraudulent intent. 5 
 There may even be an intent to defeat an execution. 6 
 There must be other ingredients in the case to make the 
 transaction fraudulent. There must be a fraudulent 
 intent. Every conveyance by which an insolvent debtor 
 conveys his whole property to a few preferred creditors, 
 not being more than sufficient to pay their debts, neces- 
 sarily 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. 
 
 185; Shapleigh v. Baird, 26 Mo. 322; Floyd v. Smith, 9 Ohio St. 546; 
 Dickson v. Rawson, 5 Ohio St. 219 ; Shouse v. TTtterback, 2 Met. (Ky.) 
 52 ; Given v. Gordon, 3 Met. (Ky.) 538 ; Price v. Mazange, 31 Ala. 701 ; 
 Crow v. Beardsley, 68 Mo. 435. They do not generally apply to sale to 
 a creditor to pay his own debt and account for the balance. Chafi'ees v. 
 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. 
 
 1 New Albany R. R. Co. v. Huff, 19 Ind. 444. 
 
 2 Hutchinson v. Smith, 7 Paige, 26. Contra, Barcroft v. Snodgrass, 1 
 Cold. 430. 
 
 8 Catlin v. Eagle Bank, 6 Conn. 233 ; Dana v. Bank of U. S., 5 W. & 
 S. 223 ; Burr v. M'Donald, 3 Gratt. 215 ; Arthur v. Commercial Bank, 17 
 Miss. 394 ; Town v. Bank, 2 Doug. (Mich.) 530 ; Hightower v. Mustian, 
 8 Geo. 506 ; U. S. v. Bank of U. S„ 8 Rob. (La.) 262 ; Dundas v. Bowler, 
 3 McLean, 397. 
 
 "Marbury v. Brooks, 7 Wheat. 566 ; s. o. 11 Wheat. 78 ; Byrd v. Brad- 
 ley, 2 B. Mon. 239 ; Lawrence v. Neff, 41 Cal. 566. 
 
 6 Wilson v. Eifler, 6 Cold. 31. « Hollister v. Loud, 2 Mich. 309. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 397 
 
 The law allows a debtor to give a preference to credi- 
 tors by a bona fide conveyance. It allows any creditor 
 also by an execution to acquire a preference in invitvm. 
 But which shall prevail depends entirely upon the priority 
 of the act by which the preference is legally acquired. 
 Neither is, of itself, a fraud upon the other. 1 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 outstripped in the race of diligence by 
 another legal mode of obtaining satisfaction. It is only a 
 fair contest between creditors by legal means to secure 
 themselves. Since in law they are equally meritorious, 
 the strongest legal right must prevail. 2 The debtor may 
 also select the time of making an assignment, so as to make 
 the preference effectual 3 
 
 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 ren- 
 der an assignment fraudulent. 4 Neither law nor equity 
 inquires into the reasons or motives for the preference. 
 The motive which prompted it, provided an honest debt 
 
 1 Halsey v. Whitney, 4 Mason, 206 ; Bank v. Cox, 6 Me. 395 ; Tomp- 
 kins v. Wheeler, 16 Pet. 106 ; Jaques v. Greenwood, 12 Abb. Pr. 232 ; 
 Wynne v. Glidwell, 17 Ind. 446 ; New Albany R. E. Co. v. Huff, 19 Ind. 
 444 ; Chandler v. Caldwell, 17 Ind. 256 ; Bailey v. Mills, 27 Tex. 434. 
 . ! Hefner v. Metcalf, 1 Head, 577. 
 3 Tompkins v. Wheeler, 16 Pet. 106. 
 
 * Spaulding v. Strang, 37 N. Y. 135 ; s. c. 38 N. Y. 9 ; s. c. 32 Barb. 
 235 ; S. c. 36 Barb. 310 ; Wilson v. Britton, 6 Abb. Pr. 34, 97 ; s. C. 20 Barb. 
 562 ; Place v. Miller, 6 Abb. Pr. (N. 8.) 178 ; vide Gasherie v. Apple, 14 
 Abb. Pr. 64 ; Eenard v. Graydon, 39 Barb. 548 ; s. c. 36 Barb. 310 ; s. c. 
 32 Barb, 235 ; s. c. 25 How. Pr. 178 ; Dickerson v. Benham, 20 How. Pr. 
 343 ; Anthony v. Stype, 26 N. Y. Supr. 265. 
 
398 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 is secured, is not the subject of legal inquiry. If, in 
 selecting the objects of his 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 sub- 
 ject of legal complaint. 1 He may even be influenced by 
 an expectation to receive employment from the preferred 
 creditors. 3 If the debtor's purpose is to prevent a sacri- 
 fice 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. 3 
 
 Consequence of Eight to Prefer. — The right to pre- 
 fer necessarily involves the right to postpone. 4 A claim 
 may be postponed unless certain collaterals are accounted 
 for. 5 The assignment may provide that no interest shall 
 be paid upon any debt until the principal of all the debts 
 is paid. 6 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 giving of a preference to him, is valid 
 when the surety is solvent. 7 
 
 Reservations to Debtor. — The fundamental principle 
 of law and justice is that all the property of an insolvent 
 
 1 Spaulding v. Strang, 37 N. T. 135 ; s. c. 38 N. T. 9 ; s. c. 32 Barb. 
 235 ; s. c. 36 Barb. 310 ; Hollister v. Loud, 2 Mich. 309 ; ex parte Con- 
 way, 12 Ark. 302. s Crawford v. Austin, 34 Md. 49. 
 
 a Rindskoff v. Guggenheim, 3 Cold. 284. 
 
 4 Ex parte Conway, 12 Ark. 302. 
 
 6 Bellows v. Partridge, 19 Barb. 176. 
 
 8 Ingraham v. Grigg, 21 Miss. 22. ' Halton v. Jordan, 29 Ala. 266. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 399 
 
 debtor shall be applied to the discharge of his debts. If 
 the debtor may want sustenance, so also may the creditors, 
 and if one of them must suffer, the misfortune 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 T 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. 1 This is 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, 2 nor transfer his property 
 and substitute his own bond in its place. 3 An express 
 appropriation of a portion of the property to his use, 4 or 
 for his support, 5 or any provision for his family, 6 renders 
 the assignment void. The mere fact that the debts of the 
 
 1 Mackie v. Cairns, 5 Cow. 547 ; s. o. 1 Hopk. 373. 
 
 2 Green v. Trieber, 3 Md. 11 ; Gait v. Dibrell, 10 Yerg. 146 ; Price v. 
 Ritger, 44 Md. 521. 
 
 3 Green v. Trieber, 3 Md. 11. 
 
 4 Green v. Trieber, 3 Md. 11 ; Mackie v. Caims, 5 Cow. 547 ; s. o. 1 
 Hopk. 373 ; Johnston v. Harvy, 2 Penna. 82 ; Richards v. Hazard, 1 Stew. 
 & Port. 139 ; Coate v. Williams, 9 Eng. L. & Eq. 481 ; s. 0. 7 Exch. 205. 
 Contra, Murray v. Riggs, 15 Johns. 571 ; S. c. 2 Johns. Ch. 565 ; Austin 
 v. Bell, 20 Johns. 442 ; Estwick v. Caillaud, 5 T. R. 420 ; s. c. 2 Anst. 
 381. 
 
 6 Green v. Trieber, 3 Md. 11 ; Johnston v. Harvy, 2 Penna. 82. 
 
 6 M'Allister v. Marshall, 6 Binn. 338 ; M'Clurg v. Lecky, 3 Penna. 83 ; 
 Bradway's Estate, 1 Ashm. 212 ; Green v. Branch Bank, 33 Ala. 643. 
 Contra, Young v. Booe, 11 Ired. 347. 
 
 26 
 
400 ASSIGNMENTS FOE THE BENEFIT OF CREDITORS. 
 
 creditors who assent to it amount to more than the value 
 of the property is immaterial. 1 
 
 The debtor cannot postpone creditors to a future day, 
 and have the funds in the meantime applied to the prose- 
 cution of his business. 2 An assignment which is to con- 
 tinue 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 securing an ultimate 
 and permanent advantage to the debtor. 3 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 prescribed 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 can not be demanded 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, 5 or for the payment of the expenses of the 
 debtor in obtaining the benefit of the bankrupt law. 6 A 
 preference can not be given for the purpose of securing to 
 the debtor the future use of a dwelling house without 
 
 ' M'Allister v. Marshall, 6 Binii. 338. 
 
 ! Bodley v. Goodrich, 7 How. 276 ; Cleveland v. Railroad Co., 7 A. L. 
 Eeg. 536. 
 
 8 Arthur v. Commercial Bank, 17 Miss. 394 ; Fellows v. Commercial 
 Bank, 6 Rob. (La.) 246. Contra, Robins v. Embry, 1 S. & M. Ch. 207 ; 
 Balto. & Ohio R. R. Co. v. Glenn, 28 Md. 287. 
 
 4 Green v. Trieber, 3 Md. 11. « Austin v. Bell, 20 Johns. 442. 
 
 " Sewall v. Russell, 2 Paige, 175. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 401 
 
 paying rent or being liable therefor. 1 A provision for 
 future advances and future liabilities, 2 or a loan not 
 received at the time of executing the assignment, 3 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, 4 or contemplating the resumption of 
 business, 5 avoids the assignment. 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. 6 
 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 extinguishing a prior 
 assignment. 7 A stipulation may be inserted requiring 
 a note given in an exchange of accommodation notes to 
 be surrendered as a condition of a preference. 8 
 
 Eight to Possession. — An express reservation of the 
 right to remain in possession until the property is sold, 9 or 
 for such a time as the assignee in his discretion may deem 
 proper, 10 will not vitiate the transfer. A stipulation in the 
 
 1 Elias v. Farley, 40 N. Y. 398 ; S. C. 5 Abb. Pr. (N. S.) 39 ; s. o. 2 
 Abb. Ap. 11. 
 
 8 Barnum v. Hempstead, 7 Paige, 568 ; Lansing v. Wordsworth, 1 
 Sandf. Ch. 43 ; Currie v. Hart, 2 Sandf. Ch. 353 ; Peacock v. Tompkins, 
 Meigs. 317. 3 Sheldon v. Dodge, 4 Denio, 217. 
 
 4 Berry v. Riley, 2 Barb. 307 ; Sheppards v. Turpin, 3 Gratt. 373. 
 
 5 Eairchild v. Hunt, 14 N. J. Eq. 367. 
 
 6 Judson v. Gardner, 4 Leg. Obs. (N. Y.) 424. 
 ' Eairchild v. Hunt, 14 N. J. Eq. 367. 
 
 8 Oliver Lee & Co.'s Bank v. Talcott, 19 N. Y. 146 ; Bank v. Talcott, 
 22 Barb. 550. 
 
 Baxter v. Wheeler, 26 Mass. 21 ; Dewey v. Littlejohn, 2 Ired. Eq. 
 495 ; Moore v. Collins, 3 Dev. 126 ; Lanier v. Driver, 24 Ala. 149. Con- 
 tra, Knight v. Packer, 12 N. J. Eq. 214. 
 
 10 Planters and Merchants' Bank v. Clarke, 7 Ala. 765 ; Abercrombie 
 v. Bradford, 16 Ala. 560 ; Shackelford v. Planters' Bank, 22 Ala. 238. 
 
402 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 deed for possession by the debtor for a definite time is an 
 express trust for him and raises a presumption 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 the benefit of the debtor. 1 No 
 express stipulation can be inserted requiring the employ- 
 ment of the debtor. 2 
 
 What may be Seized. — When an assignment is void 
 on account of a reservation in favor of the debtor, credi- 
 tors may seize the property reserved 3 or the property 
 assigned. 4 
 
 Concealment. — The concealment of a portion of the 
 assets conveyed by the terms of the assignment does not 
 necessarily invalidate the assignment, 5 but is merely a cir- 
 cumstance tending to prove fraud. 6 The same principle 
 
 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 v. Williams, 9 Eng. L. & Eq. 481 ; s. c. 7 Exch. 205— and eight 
 months— Hempstead v. Johnson, 18 Ark. 123— have been deemed to be 
 not unreasonable. In Virginia, two years, with the right to take the 
 profits — Dance v. 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. 
 
 2 McOlurg 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 ; Holt v. Kelly, 13 Ir. L. R. 33. 
 
 8 M'Allister v. Marshall, 6 Binn. 338 ; M'Clurg v. Lecky, 3 Penna. 83. 
 
 4 M'Clurg v. Lecky, 3 Penna. 83. 
 
 6 Reinhard v. Bank of Ky., 6 B. Mon. 252 ; Wilson v. Berg, 88 Penn. 
 167. 
 
 6 Guerin v. Hunt, 6 Minn. 375 ; s. o. 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 ; Waverly Nat'l Bank v. 
 Halsey, 57 Barb. 249 ; Adler v. Ecker, 2 Fed. Rep. 126 ; Schultz v. Hoag- 
 land, 85 N. Y. 464. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 403 
 
 applies when the debtor absconds with a portion of the 
 estate, 1 or abstracts a part of the property after the exe- 
 cution of the assignment. 2 These acts are a fraud on the 
 assignment rather than a fraud in it. 8 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. 4 
 
 Exception from Operation of Deed. — An exception 
 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 assignment. 5 A 
 declaration that certain notes were made for the accom- 
 modation of the debtor and directing their return to the 
 makers simply excepts them from the operation of the 
 deed, and does not justify an inference of fraud. 6 What- 
 ever is exempt from execution may be reserved to the 
 debtor. 7 But if the reservation of what may be exempt by 
 
 1 Wilson v. 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. S.) 28 ; Thomas v. Tallmadge, 16 Ohio 
 St. 434 ; Spencer v. Jackson, 2 E. 1. 35 ; vide Waverly Nat'l Bank v. Hal- 
 sey, 57 Barb. 249 ; Foley v. Bitter, 34 Md. 646 ; Stewart v. Spencer, 1 
 Curt. 157 ; Nightingale v. Harris, 6 R. I. 321 ; Main v. Lynch, 54 Md. 
 658. s Craft v. Bloom, 59 Miss. 
 
 'Thomas v. Tallmadge, 16 Ohio St. 434. 
 
 4 Carlton v. Baldwin, 22 Tex. 724 ; Stewart v. Spencer, 1 Curt. 157 ; 
 Clark v. Bobbins^ 8 Kans. 574 ; Nightingale v. Harris, 6 R. I. 321 ; Far- 
 rin v. Crawford, 2 N. B. R. 602 ; in re Chamberlain et al., 3 N. B. R. 710. 
 
 6 Bank v. Cox, 6 Me. 395 ; Carpenter v. Underwood, 19 N. T. 520 ; 
 Pearce v. Jackson, 2 R. 1. 35 ; Knight v. Waterman, 36 Penn. 258 ; Bates 
 v. Ableman, 13 Wis. 644 ; Baldwin v. Peet, 22 Tex. 708 ; Ingraham v. 
 Grigg, 21 Miss. 22 ; Dodd v. Hills, 21 Kans. 707 ; in re John C. Walker, 
 18 N. B. R. 56 ; vide Foster v. Libby, 24 Me. 448 ; Moss v. Humphrey, 4 
 Greene (Iowa), 443. 6 Price v. Deford, 18 Md. 489. 
 
 • Dow v. Platner, 16 N. Y. 562 ; Mulford v. Shirk, 26 Penn. 473 ; Hol- 
 lister v. Loud, 2 Mich. 309 ; Baldwin v. Peet, 22 Tex. 708 ; Garner v. 
 
404 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 law gives the debtor the right to select the article, the 
 assignment is void, for the assignee has no certain claim 
 until the election is made. 1 
 
 No Application to Sales. — 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 purchase 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. 2 
 
 Residuary Interests. — There is a distinction between 
 an express trust for the debtor and a benefit which" is 
 merely incidental to a trust created for another object. 3 
 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 colorable and made for 
 the sake of the resulting trust it is not void. 4 An express 
 reservation of the surplus to the debtor is a mere expres- 
 sion of that which the law would provide without such a 
 declaration, and does not therefore vitiate the transfer. 5 
 
 Frederick, 18 Ind. 507 ; Smith v. Mitchell, 12 Mich. 180 ; Heckman v. 
 Messinger, 49 Penn. 465 ; Brooks v. Nichols, 17 Mich. 38 ; Farquharson 
 v. McDonald, 2 Heisk. 404 ; Sugg v. Tillman, 2 Swan. 208 ; McCord v. 
 Moore, 5 Tenn. 734; Overton v. Hollingshade, 5 Heisk. 283; Richardson 
 v. Marqueze, 59 Miss. 
 
 1 Clark v. Robbins, 8 Kans. 574. * Beach v. Bestor, 47 111. 521. 
 
 8 Curtis v. Leavitt, 15 N. Y. 9 ; S. O. 17 Barb. 309 ; Van Buskirk v. 
 Warren, 39 N. Y. 119 ; s. o. 34 Barb. 457 ; 13 Abb. Pr. 145 ; 4 Abb. Ap. 
 457. 4 Wilkes v. Ferris, 5 Johns. 335. 
 
 'Hempstead v. Johnson, 18 Ark. 123; Rowland v. Coleman, 45 Geo. 
 204; Ely v. Hair, 16 B. Mon. 230 ; Brown v. Lyon, 17 Ala. 659 ; Dance 
 v. Seaman, 11 Gratt. 778 ; Graham y. Lockhart, 8 Ala. 9 ; Hindman v. 
 Dill, 11 Ala. 689 ; Dana v. Bank of U. S., 5 W. & S. 223 ; Johnson v. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 405 
 
 When no surplus is expected, an omission to provide for 
 the distribution of any balance that may remain does not 
 affect the transfer. 1 There may be a provision that the 
 surplus shall be paid to the debtor or creditors in the dis- 
 cretion of the assignee. 2 
 
 When Reservation of Surplus Fraudulent. — The 
 reservation of the surplus may, however, be fraudulent. 
 This will depend upon the proportion the value of the 
 estate bears to the debts secured by the assignment. If 
 
 McAllister, 30 Mo. 327 ; Miller v. Stetson, 32 Ala. 166 ; Moore v. Collins, 
 3 Dev. 126 ; Andrews v. Ludlow, 22 Mass. 28 ; Vaughan v. Evans, 1 Hill 
 Ch. 414 ; Floyd v. Smith, 9 Ohio St. 546; Dickson v. Rawson, 5 Ohio St. 
 219 ; 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, 11 111. 
 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. 43 ; Strong v. Skinner, 4 Barb. 546 ; Collomb v. Caldwell, 16 N. Y. 
 484 ; Truitt v. Caldwell, 3 Minn. 364 ; Banning v. Sibley, 3 Minn. 389 ; 
 Green v. Trieber, 3 Md. 11 ; Therasson v. Hickok, 37 Vt. 454 ; Maberry 
 v. Shisler, 1 Harring. 349 ; Berry v. Riley, 2 Barb. 307 ; Pierson v. Man- 
 ning, 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, 438 ; Dana v. Lull, 17 Yt. 390— or by 
 proof that the omission was the effect of haste or inadvertence. Hooper 
 v. 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 property until the 
 creditors, provided for in the assignment, are paid — Dana v. 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 v. 
 Hollister, 4 N. Y. 211 ; Dunham v. Whitehead, 21 N. Y. 131 ; McClel- 
 land v. Remsen, 36 Barb. 622 ; s. O. 14 Abb. Pr. 331 ; s. c. 23 How. Pr. 
 175 ; Estwick v. Caillaud, 2 Anst. 381 ; s. c. 5 T. R. 420. The opposite 
 doctrine is held in other cases. Murray v. Riggs, 15 Johns. 571 ; s. o. 2 
 Johns. Ch. 565 ; Austin v. Bell, 20 Johns. 442 ; SMpwith v. Cunningham, 
 8 Leigh, 271 ; Janney v. Barnes, 11 Leigh, 100 ; Marks v. Hill, 15 Gratt. ' 
 400 ; Ely v. Hair, 16 B. Mon. 230 ; Graham v. Lockhart, 8 Ala. 9. 
 
 •Doremue v. Lewis, 8 Barb. 124; Bishop v. Halsey, 3 Abb. Pr. 400 ; 
 Spies v. Joel, 1 Duer, 669. * Kneeland v. Cowles, 4 Chand. 46. 
 
406 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 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 detection. In such a case the 
 debtor is obviously providing for himself and not for 
 his creditors. 1 Inadequacy of consideration is, however, 
 merely indicative of fraud, and not conclusive evidence z 
 
 Surplus in Assignment by Partners. — The partner- 
 ship effects are the primary and natural fund for the pay- 
 ment 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 assignment of the 
 property and effects of the firm for the purpose of dis- 
 charging their joint debts, to direct the residue of the 
 assigned property, if there should happen to be any, to be 
 returned to them, so that it may be divided between them 
 according to their respective equitable interests therein, 
 leaving each to pay his private debts out of his own indi- 
 vidual property. 3 Such an assignment is not fraudulent, 
 because the rights of the separate creditors are subject to 
 an equitable adjustment of accounts between the partners 
 themselves. 4 The result will be the same if the assign- 
 ment contains no direction to pay the residue of the pro- 
 ceeds to the debtors after paying the firm debts, for the 
 law itself creates a resulting trust in their favor as to such 
 
 1 Moore v. Collins, 3 Dev. 126 ; Beck v. Burdett, 1 Paige, 305 ; Hast- 
 ings v. Baldwin, 17 Mass. 552. 
 
 2 George v. Kimball, 41 Mass. 234. 
 
 s Bcgert v. Haight, 9 Paige, 297 ; Butt v. Peck, 1 Daly, 83 ; Hubler v. 
 Waterman, 33 Penn. 414; vide Goddard v. Hapgood, 25 Vt. 351. 
 
 4 Collomb v. Caldwell, 16 N. Y. 484; Collumb v. Read, 24 ST. Y. 505. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 407 
 
 surplus. 1 Real estate held by the partners jointly may be 
 shown to be partnership property. 2 
 
 When one partner, with the consent of his co-partner, 
 assigns his individual estate and the partnership assets to 
 pay his private debts, there may be a reservation in favor 
 of such co-partner of a sum equal to his interest. 3 An 
 assignment of the individual estate made after the execu- 
 tion of an assignment of the firm property is not void, 
 because there is no provision for the payment of debts 
 which are fully provided for in the firm assignment. 4 
 
 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. 5 When the object of the trust 
 is accomplished, what remains will belong to the debtor 
 by operation of law. 6 
 
 1 Bogert v. Haight, 9 Paige, 297. 
 
 ' Collumb v. Bead, 24 N. Y. 505. When the assignment includes both 
 individual and partnership property it has been held that 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 also been 
 held that proof must be given that there are separate debts. Bogert v. 
 Haight, 9 Paige, 297. 
 
 3 Mandel v. Peay, 20 Ark. 325. 
 
 4 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. 
 
 6 Sangston v. Gaither, 3 Md. 40; Beatty v. Davis, 9 Gill. 211; Win- 
 tringham v. Lafoy, 7 Cow. 735. 
 
 6 Van Kossum v. Walker, 11 Barb. 237; Ely v. Cook, 18 Barb. 612; 
 Bobbins v. Embry, 1 S. & M. Ch. 207 ; Cross v. Bryant, 3 111. 36 ; Hall 
 v. Dennisou, 17 Vt. 310 ; Hollister v. Loud, 2 Mich. 309 ; Hoffman v. 
 Mackall, 5 Ohio St. 124; Finlay v. Dickerson, 2,9 111. 9 ; Matter v. Potter, 
 54 Penn. 465 ; Van Hook v. Walton, 28 Tex. 59 ; Farquharson v. Mc- 
 Donald, 2 Heisk. 404; Gibson v. Walker, 11 Ired. 327. 
 
408 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 Time for Closing Trust. — The avowed object of an 
 assignment 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, 1 
 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. 2 Delay is necessarily incident 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. 3 
 
 Time must be Reasonable. — It is not necessary that 
 the assignment shall fix a time within which the execu- 
 tion 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. 4 If, however, 
 any time is prescribed, it must be reasonable. What is a 
 reasonable 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 an assignment may be as strong evidence of fraud as 
 
 1 Pope v. Wilson, 7 Ala. 690. 8 Green v. Trieber, 3 Md. 11. 
 
 s Carlton v. Baldwin, 22 Tex. 724. 
 
 4 Wilt v. Franklin, 1 Binn. 502 ; Hower v. Geesaman, 17 S. & B. 251 ; 
 Stevens v. Bell, 6 Mass. 339 ; Hollister v. Load, 2 Mich. 309 ; Bellamy v. . 
 Bellamy, 6 Fla. 62 ; New Albany B. B. Co. v. Huff, 19 Ind. 444 ; Over- 
 ton v. Holinshade, 5 Heisk. 283. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 409 
 
 one which is too extended. The time must always be 
 regulated by the nature and character of the property 
 assigned and the time necessary to collect and convert 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 fraudu- 
 lent 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 neighbor- 
 hood, would be equally fraudulent, unless from the nature 
 of the property assigned it could not be put in a shape for 
 distribution at an earlier period. 1 
 
 A postponement of the time of distribution for eight 
 months 2 and twelve months 3 has been held good. A 
 postponement for more than a year has been considered 
 bad. 4 A requirement that the trust shall be closed within 
 two years has been held valid. 5 The vesting of a power 
 in a majority of the creditors to postpone the distribution 
 indefinitely vitiates the assignment. 6 As the assignment 
 may provide that a distribution shall only be made among 
 those creditors who assent to it, 7 the time allowed for 
 expressing their consent should be reasonable. 8 What is a 
 
 1 Robins v. Embry, 1 S. & M. Ch. 207. 
 
 s Hempstead v. Johnston, 18 Ark. 123. 
 
 * Robins v. Embry, 1 S. & M. Ch. 207. 
 
 4 Sheerer v. Lautzerheizer, 6 Watts, 543. 
 
 6 Dana v. Bank of U. S., 5 W. & S. 223. 
 
 8 Sheppards v. Turpin, 3 Gratt. 373 ; Shearer v. Loftin, 26 Ala. 703 ; 
 Sanderson v. Streeter, 14 Kans. 458 ; Higby v. Ayres, 14 Kans. 331. 
 
 1 Conkling v. Carson, 11 111. 503 ; Finlay v. Dickerson, 29 111. 9. 
 
 8 One year has been considered reasonable. Vaughan y. Evans, 1 Hill 
 Ch. 414. Contra, Repplier v. Orrich, 7 Ohio, 2d part, 246; Knight v. 
 Packer, 12 N. J. Eq. 214. Twenty months is allowed in Tennessee. 
 Mayer v. Pulliam, 2 Head. 346 ; Farquharson v. McDonald, 2 Heisk. 404. 
 Thirty days has been deemed unreasonable.' Hardin v. Osborn, 60 111. 93. 
 
410 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 reasonable time must be determined by the circumstances 
 of each case, the quantity of the estate, the number of 
 creditors and the distance between the parties. As the 
 object of the limitation is to afford to creditors an oppor- 
 tunity to accept or reject the terms offered, the time must 
 not be so short as to prevent a thorough examination. 1 
 
 Delay in Sale and Distribution. — In every assign- 
 ment 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 inci- 
 dental 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. 2 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, how- 
 ever, bound to proceed to make forced sales after the 
 manner of a sheriff holding property on an execution, 
 unless the terms of the assignment or the manifest inter- 
 ests 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 in- 
 structions what a man of ordinary prudence and care 
 would do in regard to his own business. 8 The assignment 
 
 ' Hardin v. Osborn, 60 111. 93. 
 
 2 Sackett v. Mansfield, 26 111. 21 ; Wooster v. Stanfield, 11 Iowa, 128 ; 
 McClung v. Bergfield, 4 Minn. 148. 
 
 3 Hoffman v. Mackall, 5 Ohio St. 124. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 411 
 
 may by express terms confer upon him all that the law 
 gives by implication. 1 
 
 Illegal Power Vitiates. — No illegal power, however, 
 should be conferred, for this will render the whole assign- 
 ment 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 condition, 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 property from the debtor against 
 his will. He having 'consented 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 conditions upon which it is made. A dis- 
 cretion 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. 3 
 
 Legal Rights. — 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 obligation to pay 
 money, the time of payment is an essential part of the 
 contract. When it arrives, the law demands an appropri- 
 ation by the debtor of his property in discharge of his 
 
 'McClung v. Bergfleld, 4 Minn. 148. 
 
 ' Goddard v. Hapgood, 25 Vt. 351 ; Benedict v. Huntington, 32 N. Y. 
 219 ; vide Nicholson v. Leavitt, 6 N. Y. 510 ; S. C. 10 S". Y. 591 ; s. c. 4 
 Sandf. 252 ; Dunham v. Waterman, 17 N. Y. 9 ; s. c. 6 Ahb. Pr. 357 ; s. o. 
 3 Duer, 166 ; Jessup v. Hulse, 21 N. Y. 168 ; S. 0. 29 Barb. 539 ; Billings 
 v. Billings, 2 Cal. 107. 
 
412 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 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 appropri- 
 ation upon a trustee. This the law permits, and such 
 delay as may be necessary for that purpose. 1 But any 
 delay beyond what may be necessary for the proper execu- 
 tion of the trust involves an illegal hindrance, and thus 
 renders the instrument fraudulent and void. 
 
 Delay of Sale. — A power 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 immediately after 
 the execution of the deed. 3 If the interval between the 
 date of the assignment and the day appointed 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. 3 Forty days, 4 three months, 5 
 four months, 6 nine months, 7 and eleven months, 8 have been 
 considered good. One year, 9 eighteen months, 10 two years, 11 
 
 1 Nicholson v. Leavitt, 6 N. Y. 510 ; s. o. 10 N. T. 591 ; s. c. 4 Sandf. 
 252 ; Barney v. Griffin, 2 N. Y. 365. 
 
 8 Hart v. Crane, 7 Paige, 37 ; Hart v. Gedney, 1 Law Rep. 69 ; Maugh- 
 lin v. Tyler, 47 Md. 545. 
 
 3 Hafner v. Irwin, 1 Ired. 490 ; Smith v. Morse, 2 Cal. 524. 
 
 4 Hafher v. Irwin, 1 Ired. 490. 
 
 6 Christopher v. Covington, 2 B. Mon. 357. 
 
 6 Cannon v. Peebles, 2 Ired. 449 ; S. c. 4 Ired. 204. 
 
 I Gilmer v. Earnhardt, 1 Jones (N. C.) 559. 
 
 8 Young v. Booe, 11 Ired. 347. 
 
 9 Sheerer v. Lautzerheizer, 6 Watts, 543. Contra, Graham v. Lock- 
 hart, 8 Ala. 9 ; Farquharson v. McDonald, 2 Heisk. 404 ; Rindskoff v. 
 Guggenheim, 3 Cold. 284. 
 
 10 Bancroft v. Snodgrass, 1 Cold. 430. 
 
 II Quarles v. Kerr, 14 Gratt. 48 ; Hardin v. Osborn, 60 111. 93 ; vide 
 Dance v. Seaman, 11 Gratt. 778. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 413 
 
 three years, 1 and five years, 2 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. 3 
 
 Without Delay. — A direction to the assignee to sell 
 without delay is good, for it means that he shall proceed 
 to sell without unreasonable or unnecessary delay. 4 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 ap- 
 pointed, 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 respects some discretion as to 
 the manner and circumstances of the sale. In all these 
 arrangements he is bound to consult the interests of the 
 creditors, and has no right to defer the sale any longer 
 
 1 Adlum v. Yard, 1 Bawle, 163. 
 
 2 Storm v. Davenport, 1 Sandf. Ch. 135. 
 
 9 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. 
 
 4 Griffin v. Marquardt, 21 N. Y. 121 ; s. c. 17 N. Y. 28. 
 
414 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 than these interests may be supposed imperatively to 
 require. 1 
 
 Discretion. — It is manifestly impracticable to sell in 
 all cases alike within the same period after the execution 
 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. 3 A dis- 
 cretion 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 of sale. 3 A pro- 
 vision 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. 4 The price may be 
 left to his discretion. 5 A direction to him to sell at fair 
 and reasonable prices is valid, for whatever prices he can 
 obtain upon a sale fairly made is in legal contemplation a 
 fair and reasonable price. 8 A direction to him to sell as 
 
 1 Jessup v. Hulse, 21 N. Y. 168 ; s. c. 29 Barb. 539. 
 
 8 Jessup v. Hulse, 21 N. Y. 168 ; s. c. 29 Barb. 539 ; Bellows v. Par- 
 tridge, 19 Barb. 176 ; Meeker v. Sanders, 6 Iowa, 61 ; Ogden v. Peters, 21 
 N. Y. 23 ; s. c. 15 Barb. 560 ; Townsend v. Stearns, 32 1ST. Y. 209 ; Mc- 
 Clung v. Bergfield, 4 Minn. 148 ; Finlay v. Dickerson, 29 111. 9 ; McCallie 
 v. Walton, 37 Geo. 611 ; Farquharson v. Eichelberger, 15 Md. 63 ; Maen- 
 nel v. Murdock, 13 Md. 164 ; Mussey v. Noyes, 26 Vt. 462 ; Inloes v. 
 American Exchange Bank, 11 Md. 173 ; Benedict v. Huntington, 32 N. Y. 
 219; Clapp v. Utley, 16 How. Pr. 384; Sackett v. Mansfield, 26 111. 21 ; 
 vide Woodburn v. Mosher, 9 Barb. 255 ; Murphy v. Bell, 8 How. Pr. 468. 
 
 8 Cannon v. Peebles, 2 Ired. 449 ; s. 0. 4 Ired. 204. 
 
 1 Booth v. McNair, 14 Mich. 19. 
 
 6 Ashurst v. Martin, 9 Port. 566 ; Norton v. Kearney, 10 Wis. 443. 
 
 8 Ely v. Hair, 16 B. Mon. 230. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 415 
 
 soon as it can be done without material sacrifice would be 
 proper for the same reason. 1 
 
 Mode of Selling. — The power may be given to him to 
 sell at either public or private sale. 3 A direption to sell at 
 public auction is a badge of fraud, because it indicates an 
 intention to sacrifice the property. 3 A provision that the 
 assignee may carry on the business for such time as in his 
 judgment it may be beneficial to do so, 4 or that he may 
 sell gradually in the manner 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 
 has been before conducted, 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 indefinite and 
 uncertain period, must be regarded in conscience and law 
 as a fraud. 5 For the same reason a provision that the 
 
 1 Wooster v. Stanfield, 11 Iowa, 128. 
 
 'Halstead v. Gordon, 34 Barb. 422; Sackett v. Mansfield, 26 111. 21 ; 
 Hoffman v. Mackall, 5 Ohio St. 124 ; Nye v. Van Husan, 6 Mich. 329 ; 
 Marks v. Hill, 15 Gratt. 400. Contra, Schoolfield v. Johnson, 11 Fed. 
 Rep. 297 ; Raleigh v. Griffith, 37 Ark. 150. 
 
 3 Work v. Ellis, 50 Barb. 512. 
 
 4 Jones v. Syer, 52 Md. 211; Gardner v. Commercial Bank, 95 111 
 298; Spencer v. Slater, L. R. 4 Q. B. Div. 13; Hill v. Agnew, 12 Fed 
 Rep. 230 ; First Nat'l Bank v. Hughes, 10 Mo. Ap. 7. 
 
 6 American Exchange Bank v. Inloes, 7 Md. 380 ; s. c. 11 Md. 173 
 Truitt v. Caldwell, 3 Minn. 364; Gere v. Murray, 6 Minn. 305 ; Bartlett 
 v. Teah, 1 McCrary, 176 ; vide Rindskoff v. Guggenheim, 3 Cold. 284 
 Olney v. Tanner, 10 Fed. Rep. 101. 
 27 
 
416 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 creditors may carry on the business so long as they may 
 deem it to be their interest to do so renders an assign- 
 ment void. 1 The assignee may, however, be clothed with 
 the power to replenish the stock so as to facilitate general 
 sales. 2 If a manufacturer has on hand a quantity of raw 
 material at the time of the assignment, the assignee may 
 be permitted to continue the manufactory until this is 
 worked up, and to purchase any necessary article for that 
 purpose. 3 The object of this power is to prevent the 
 sacrifice that would be occasioned by a sale of unmanu- 
 factured 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 busi- 
 ness. If it makes the creditors partners, it will render 
 the assignment void. 4 It is always a badge of fraud, 5 and 
 the circumstances which will justify it must appear upon 
 the face of the assignment, so that the court may deter- 
 mine whether it is valid or void as a question of law. 6 
 
 Sales on Credit. — A prohibition of sales on credit is 
 valid, for the assignee, in the exercise of a just discretion, 
 may postpone a sale so as to prevent a sacrifice. 7 If, how- 
 
 1 Peters v. Leight, 76 Penn. 289. 
 
 2 Kindskoff v. Guggenheim, 3 Cold. 284 ; Marks v. Hill, 15 Gratt. 400 ; 
 Boldero v. London & W. L. & D. Co., L. R. 5 Ex. Div. 47. 
 
 3 De Forrest v. Bacon, 2 Conn. 633; Cunningham v. Freeborn, 11 
 Wend. 241 ; s. c. 3 Paige, 537 ; s. c. 1 Edw. 256 ; Foster v. Saco Manuf. 
 Co., 29 Mass. 451 ; Woodward v. Marshall, 39 Mass. 468 ; Kendall v. New 
 Eng. Carpet Co., 13 Conn. 383 ; Janes v. Whitbread, 73 E. C. L. 406 ; 
 s. 0. 5 Eng. L. & Eq. 431 ; Marks v. Hill, 15 Gratt. 400 ; Rindskoff v. 
 Guggenheim, 3 Cold. 284. Contra, Renton v. Kelly, 49 Barb. 536 ; Dun- 
 ham v. Waterman, 17 N. Y. 9 ; s. c. 3 Duer, 166 ; s. c. 6 Abb. Pr. 357. 
 
 4 Owen v. Body, 5 A. & E. 28. 
 
 6 De Forrest v. Bacon, 2 Conn. 633. 
 
 6 Inloes v. American Exchange Bank, 7 Md. 380 ; s. c. 11 Md. 173. 
 ' Carpenter v. Underwood, 19 N. Y. 520 ; Grant v. Chapman, 38 N. Y. 
 293 ; Stern v. Fisher, 32 Barb. 198 ; Van Rossum v. Walker, 11 Barb. 237. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 417 
 
 • 
 
 ever, 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 defraud. 1 A power to 
 sell for cash is valid. 2 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 principles which govern the duties of trustees. 3 
 An express provision, therefore, for that which would be 
 implied by law if it were absent, will not vitiate the 
 assignment. 4 
 
 ' Van Bossum v. Walker, 11 Barb. 237. 
 
 : Eicks v. Copeland, 53 Tex. 581. 
 
 » Hoffman v. Mackall, 5 Ohio St. 124. 
 
 4 Hoffman v. Mackall, 5 Ohio St. 124 ; Conkling v. Conrad, 6 Ohio St. 
 611 ; Gates v. Labeaume, 19 Mo. 17 ; Billings v. Billings, 2 Cal. 107 ; 
 Baldwin v. Peet, 22 Tex. 708 ; Christopher v. Covington, 2 B. Mon. 357 ; 
 Shackelford v. Planters' Bank, 22 Ala. 238 ; Johnson v. McAllister, 30 
 Mo. 327 ; Abercrombie v. Bradford, 16 Ala. 560 ; Gimmell v. Adams, 11 
 Humph. 283 ; Petrikin v. Davis, Morris, 296 ; Smith v. Leavitts, 10 Ala. 
 92 ; Vaughan v. Evans, 1 Hill Ch. 414 ; England v. Reynolds, 38 Ala. 370 
 State v. Benoist, 37 Mo. 500 ; Gilmer v. Earnhardt, 1 Jones (N. C.) 559 
 Berry v. Matthews, 13 Md. 537 ; Farquharson v. Eichelberger, 15 Md. 63 
 Neally v. Ambrose, 38 Mass. 185 ; Rogers v. De Forest, 7 Paige, 272 
 Ashurst v. Martin, 9 Port. 566 ; McClurg v. Allen, 7 Neb. 21 ; in re John 
 C. Walker, 18 N. B. R. 56; Richardson v. Marqueze, 59 Miss. Contra, 
 Nicholson v. Leavitt, 6 N. Y. 510 ; s. o. 10 N. Y. 591 ; S. C. 4 Sandf. 
 252; D'lvernois v. Leavitt, 23 Barb. 63; Burdick v. Post, 12 Barb. 
 168 ; s. c. 6 N. Y. 522 ; Houghton v. Westervelt, Seld. Notes, No. 1, 
 32 ; Porter v. Williams, 9 N. Y. 142 ; s. c. 12 How. Pr. 107 ; Lyons 
 v. Platner, 11 N. Y. Leg. Obs. 87 ; Rapalee v. Stewart, 27 N. Y. 310 
 Gates v. Andrews, 37 N. Y. 657 ; Bowen v. Parkhurst, 24 111. 257 
 Greenleaf v. Edes, 2 Minn. 264 ; Truitt v. Caldwell, 3 Minn. 364 
 Pierce v. Brewster, 32 111. 268 ; Sutton v. Hanford, 11 Mich. 513 
 Hutchinson v. 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 ; Richardson v. Rogers, 45 Mich. 591. It has been held that the. 
 
418 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 A sale by an assignee upon credit may be an act of 
 good faith and the proper exercise of discretion, according 
 to circumstances. An inflexible rule that an assignee 
 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 transactions, 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 discretion to sell 
 upon credit. 1 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 evidenceof fraud. 2 The power to sell on credit 
 is always a badge of fraud. 3 
 
 Delay of Distribution. — A power to withhold the 
 distribution of the assets for any length of time which the 
 
 power to sell upon such terms and conditions as in the judgment of the 
 assignee may appear best and most for the interest of the creditors is valid, 
 for it does not permit a sale on credit. Kellogg v. Slauson, 11 N. Y. 302 ; 
 s. c. 15 Barb. 56; Whitney v. Krows, 11 Barb. 198; Southworth v. 
 Sheldon, 7 How. Fr. 414; Clark v. Fuller, 21 Barb. 128; Wilson v. Fer- 
 guson, 10 How. Pr. 175 ; Wilson v. Bobertson, 21 N. Y. 587 ; S. c. 19 
 How. Pr. 350 ; Grant v. Chapman, 38 N. Y. 293 ; Hutchinson v. Lord, 1 
 Wis. 286 ; Keep v. Sanderson, 2 Wis. 42 ; s. c. 12 Wis. 352 ; Berry v. 
 Hayden, 7 Iowa, 469 ; Whipple v. Pope, 33 111. 334 ; Booth v. McNair, 
 14 Mich. 19 ; McCallie v. Walton, 37 Geo. 611. Contra, Schufeldt v. 
 Abernethy, 2 Duer, 533. It has also been held that the sale can not be 
 for money or "available means." Brigham v. Tillinghast, 13 N. Y. 215 ; 
 s. c. 15 Barb. 618. The objection does not apply when the assignment is 
 made to the creditors themselves. Van Buskirk v. Warren, 39 N. Y. 119 ; 
 s. c. 34 Barb. 457 ; s. o. 13 Abb. Pr. 145 ; s. c. 4 Abb. Ap. 457 ; Goss v. 
 Neale, 5 Moore, 19. 
 
 1 Hoffman v. Mackall, 5 Ohio St. 124. 
 
 8 Conkling v. Conrad, 6 Ohio St. 611. Six months has been held good. 
 Gilmer v. Earnhardt, 1 Jones (S. C.) 559. 
 
 a Billings v. Billings, 2 Cal. 107 ; Baldwin v. Peet, 22 Tex. 708 ; Carl- 
 ton v. Baldwin, 22 Tex. 724. In Cannon v. Peebles, 2 Ired. 449 ; s. c. 
 4 Ired. 204, the terms were left to the debtor. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 419 
 
 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. 1 
 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. 2 A bank may authorize a sale of its 
 own notes. 3 Real estate can not be reserved until all the 
 personal property is exhausted. 4 A power to pay the 
 creditors in instalments from time to time as the assets 
 come into the hands of the assignee, or to withhold all 
 payments until the final distribution, is valid. 5 
 
 Compromise. — The assignee may be allowed to com- 
 promise bad and doubtful debts due the assignor. 6 With- 
 out such a power he may lose a favorable opportunity to 
 unite with others in a composition with a failing debtor, 
 thus losing the whole claim, when by a judicious and 
 timely settlement he could have secured a large portion of 
 it. 7 Compositions, moreover, instead of increasing, dimin- 
 ish the nominal assets ; instead of nursing the estate by 
 delay, so as to enhance the probability 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 inter- 
 ests. The power of composition can, therefore, in no sense 
 
 1 D'lvernois v. Leavitt, 23 Barb. 63. 
 
 s Banning v. Sibley, 3 Minn. 389. 
 
 3 Montgomery v. Galbraith, 19 Miss. 555. 
 
 4 Pierson v. Manning, 2 Mich. 445. 
 
 6 Eicks v. Copeland, 53 Tex. 581. 
 
 6 Dow v. Platner, 16 N. Y. 562 ; Brigham v. Tillinghast, 15 Barb. 618 ; 
 s. c. 13 N. Y. 215 ; Robins v. Embry, 1 S. & M. Ch. 207 ; Murphy v. 
 Bell, 6 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. 
 
 ' Bellows v. Patridge, 19 Barb. 176. 
 
420 ASSIGNMENTS FOE THE BENEFIT OF CREDITORS. 
 
 be called a reservation in favor' of the debtor, except in 
 the honest and lawful sense of paying his debts as far and 
 as fast as possible. 1 Power may be given to the assignee 
 to submit disputes that may arise about the property, or 
 the debts owing to or by the assignor, to arbitration. 2 
 
 Uncollectible Debts. — When debts are uncollectible, 
 it would be absurd to require suit to be brought. 3 A 
 direction, to collect the debts and demands, or so 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 disposition. 4 
 Under peculiar circumstances the debtors to the estate 
 were permitted to pay in eight annual instalments. 5 
 
 Power over Property. — It is manifest that the 
 assignee ought to be vested with the means and discretion 
 plainly essential to the proper execution of the trust. 6 He 
 may therefore be vested with the power to insure, 7 to 
 relieve the property from incumbrances, 8 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, 10 to employ suitable agents at a reasonable com- 
 
 ! Dow v. Platner, 16 N. Y. 562 ; Price v. De Ford, 18 Md. 489. 
 2 Watkins v. Wallace, 19 Mich. 57. 
 8 Watkins v. Wallace, 19 Mich. 57. 
 
 4 Casey v. Janes, 37 N. Y. 608. 
 
 5 Ex parte Conway, 12 Ark. 302. 
 
 6 Bellows v. Patridge, 19 Barb. 176. 
 1 Whitney v. Krows, 11 Barb. 198. 
 
 8 Whitney v. Krows, 11 Barb. 198. 
 
 9 Vernon v. Morton, 8 Dana, 247. 
 
 10 Van Nest v. Yoe, 1 Sandf. Ch. 4 ; Vernon v. Morton, 8 Dana, 247. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 421 
 
 pensation to be paid out of the estate, 1 to revoke the 
 appointment of any attorney whom he may select, 3 to pay 
 rent and taxes until the estate is sold, 3 to advertise for 
 creditors in one or more newspapers as soon as conveniently 
 may be, and to select for this purpose such papers as he 
 may deem best calculated to give information to the 
 creditors, 4 and to adopt such measures generally, in 
 relation to the settlement of the estate, as will in his 
 judgment promote the true interests thereof 5 
 
 Power to Mortgage. — A power to mortgage the prop- 
 erty if he shall deem it necessary is beneficial, for it may 
 enable him to guard against a forced and ruinous sale, and 
 may thus be advantageously used for the interests of the 
 creditors. 6 A power to manage and improve 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. 7 
 
 Exempting Assignee from Liability. — When a debtor 
 assigns his property in trust for the payment of his debts, 
 
 1 Mann v. Whitbeck, 17 Barb. 388 ; Vernon v. Morton, 8 Dana, 247 ; 
 Rankin v. Lodor, 21 Ala. 380 ; Coate v. Williams, 9 Eng. L. & Eq. 481 ; 
 s. c. 7 Exch. 205 ; Gordon v. Cannon,, 18 Gratt. 387 ; Maennel v. Mur- 
 dock, 13 Md. 164 ; Van Dine v. Willett, 24 How.. Pr. 206 ; s. o. 38 Barb. 
 319 ; Casey v. Janes, 37 ST. Y. 608; Hennessy v. Western Bank, 6 W. & 
 S. 300 ; Nye v. Van Husan, 6 Mich. 329. 
 
 8 Langdon v. Thompson, 25 Minn. 509. 
 
 3 Van Dine v. Willett, 24 How. Pr. 206 ; s. o. 38 Barb. 319 ; Morrison 
 v. Atwell, 9 Bosw. 503 ; Eyre v. Beebe. 28 How. Pr. 333. 
 
 4 Ward v. Tingley, 4 Sandf. Ch. 476. 
 
 5 Mann v. Whitbeck, 17 Barb. 388. 
 
 6 Beatty v. Davis, 9 Gill. 211. This power is not allowed in New 
 York. Darling v. Bogers, 22 Wend. 483 ; s. C. 7 Paige, 272 ; Van Nest 
 v. Yoe, 1 Sandf. Ch. 4 ; Planck v. Sehermerhom, 3 Barb. Ch. 644. 
 
 1 Hitchcock v. Cadmus, 2 Barb. 381 ; vide Schlussel v. Willett, 34 
 Barb. 615 ; s. c. 12 Abb. Pr. 397 ; s. c. 22 How. Pr. 15. 
 
422 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 he is bound to select a trustee who 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. 
 If he absolves him from any portion of the liability which 
 the law attaches to the office of trustee, he exposes the 
 creditors to the risk of a loss, for the natural tendency of 
 such a stipulation upon the conduct of the trustee is to 
 produce carelessness and negligence in the performance of 
 the trust. If it were allowed, it would enable him to wink 
 at or be blind to transactions in regard to the assets by the 
 debtor which might be injurious or fraudulent. The 
 intent to delay, hinder- and defraud creditors is the neces- 
 sary legal inference from the provision. The assignment 
 will therefore be void unless he is held responsible for 
 the faithful performance of his duties to the full extent of 
 the liability that the law imposes. 1 The diligence of a 
 prudent man is the measure of his duty, for he is a paid 
 agent and not a gratuitous bailee. Such an agent is liable 
 for ordinary negligence or the want of that degree of dili- 
 gence which persons of common prudence are accustomed 
 to use about their own business and affairs. 2 The assign- 
 ment will therefore be void if it contains a stipulation 
 that he shall not be liable for any loss that may be sus- 
 tained by the estate unless the same shall happen by 
 reason of his gross negligence, 3 or wanton neglect, 4 or wil- 
 ful default. 5 A stipulation that he shall not be liable for 
 
 1 Olmstead v. Herrick, 1 E. D. Smith, 310 ; Mclntire v. Benson, 20 
 111. 500 ; Finlay v. Dickerson, 29 111. 9 ; August v. Seeskind, 6 Cold. 166. 
 
 2 Litchfield v. White, 7 N. Y. 438 ; s. c. 3 Sandf. 545 ; August v. Sees- 
 kind, 6 Cold. 166. 
 
 8 Litchfield v. White, 7 N. Y. 438; s. C. 3 Sandf. 545; Olmstead v. 
 Herrick, 1 E. D. Smith, 310 ; Jacobs v. Allen, 18 Barb. 549 ; Metcalf v. 
 Van Brunt, 37 Barb. 621. * August v. Seeskind, 6 Cold. 166. 
 
 6 Mclntire v. Benson, 20 111. 500 ; Robinson v. Nye, 21 111. 592 ; Fin- 
 lay v. Dickerson, 29 111. 9 ; Spinney v. Portsmouth Co., 25 N. H. 9 ; 
 Brown v. Warren, 43 N. H. 430 ; True v. Congdon, 44 N. H. 48. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 423 
 
 any loss that may happen while he is acting in good faith 
 will also render an assignment void, for gross negligence 
 may be consistent with good faith and honesty of inten- 
 tion. 1 It has, however, been held that a stipulation that 
 he shall be responsible only for wilful or neglectful de- 
 fault, 2 or only for wilful commission, omission or neglect, 3 
 is' not objectionable. A provision that the assignee shall 
 not be accountable for property which does not actually 
 come to his possession renders an assignment void, for he 
 is bound to use due diligence to obtain possession.* The 
 assignee 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 dis- 
 charge of this obligation he may be exempt from liability 
 for losses arising through their negligence, defalcation or 
 misfeasance. 5 
 
 Reasonable Expenses. — A provision may be made 
 for the payment of the charges for drawing the assign- 
 ment 6 and for all reasonable expenses attending the due 
 execution of the trust. 7 The assignee may therefore be 
 
 1 Hutchinson v. Lord, 1 Wis. 286. 2 Whipple v. Pope, 33 111. 334. 
 
 8 Maennel v. Murdock, 13 Md. 164. 
 
 4 Mclntire v. Benson, 20 111. 500 ; Finlay v. Dickerson, 29 111. 9 ; True 
 v. Congdon, 44 N. H. 48 ; Pitts v. Viley, 4 Bibh. 446 ; Spinney v. Ports- 
 mouth Co., 25 N. H. 9 ; vide Gordon v. Cannon, 18 Gratt. 387. 
 
 5 Baldwin v. Peet, 22 Tex. 708 ; Gordon v. Cannon, 18 Gratt. 387 ; 
 Van Nest v. Yoe, 1 Sandf. Ch. 4; Jacobs v. Allen, 18 Barb. 549 ; Hen- 
 nessey v. Western Bank, 6 W. 8. 300 ; Ashurst v. Martin, 9 Port. 566 ; 
 Rankin v. Lodor, 21 Ala. 380. 
 
 6 Campbell v. Woodworth, 24 N. Y. 304 ; s. C. 33 Barb. 425 ; Hill v. 
 Agnew, 12 Fed. Rep. 230. 
 
 7 Jacobs v. Remsen, 36 N". Y. 668 ; Halstead v. Gordon, 34 N. Y. 
 422 ; Campbell v. Woodworth, 24 N. Y. 304 ; s. c. 33 Barb. 425 ; Eyre 
 v. Beebe, 28 How. Pr. 333 ; Butt v. Peck, 1 Daly, 83 ; Keteltas v. Wilson, 
 36 Barb. 298 ; S. c. 23 How. Pr. 69 ; Bank v. Cox, 6 Me. 395 ; Blow v. 
 Gage, 44 111. 208 ; Flint v. Clinton Co., 12 N. H. 430. 
 
424 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 allowed the expense of hiring necessary clerks or agents, 1 
 as well as the expense of all necessary suits. 2 A provision 
 for the damages sustained by the assignee is proper, for if 
 he renders himself liable to damages in an honest effort to 
 execute the trust, he is entitled to be indemnified out of 
 the estate. 3 
 
 Assignee's Compensation. — The assignee may demand 
 payment for his services before accepting the trust. 4 A 
 provision may also be made in the assignment for a 
 reasonable compensation for his services. 5 If the com- 
 pensation is excessive, the excess is abstracted from the 
 fund that ought to go to the creditors, and they are 
 thereby defrauded. The assignment is therefore void, 
 for there is no mode of altering the sum. 6 A provision 
 can not be made allowing the assignee both commissions 
 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 purchase at his own sale. 
 If a third person were to be employed as counsel, the 
 assignee would probably proceed to close up the assign- 
 
 1 Jacobs v. Eemsen, 36 N. Y. 668. 
 
 5 Lentilhon v. Moffat, 1 Edw. 451. 3 Blow v. Gage, 44 111. 208. 
 "Myers v. Fenn, 5 Wall. 205. 
 
 6 Jacobs v. Remsen, 36 N. Y. 668 ; Halstead v. Gordon, 34 Barb. 422; 
 Campbell v. Woodworth, 24 N. Y. 304; s. c. 33 Barb. 425; Eyre v. 
 Beebe, 28 How. Pr. 333 ; Keteltas v. Wilson, 36 Barb. 298 ; S. c. 23 How. 
 Pr. 69 ; Bank v. Cox, 6 Me. 395 ; U. S. Bank v. Huth, 4 B. Mon. 423 ; 
 Vernon v. Morton, 8 Dana, 247. In New York the assignee's compen- 
 sation is limited to the commissions allowed by law to executors, adminis- 
 trators and guardians ; Barney v. Griffin, 2 N. Y. 365 ; Campbell v. 
 Woodworth, 24 N. Y. 304; s. c. 33 Barb. 425. In other States an exces- 
 sive allowance is merely a badge of fraud ; Arthur v. Commercial Bank, 
 17 Miss. 394 ; Ingraham v. Grigg, 21 Miss. 22. 
 
 6 Campbell v. Woodworth, 24 N. Y. 304; s. C. 33 Barb. 425 ; Barney 
 v. Griffin, 2 N. Y. 365. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 425 
 
 ment 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 thereby 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 
 assignee to himself as attorney, and take •advice and charge 
 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. 1 
 
 Attorney's Fees. — All 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 appears that any 
 necessity induced such consultation or employment, or that 
 circumstances existed which justified the expenditure. 
 Such sums are properly embraced in the item of expenses. 3 
 Even without such a provision the assignee has the power 
 to enforce and defend rights connected with and growiDg 
 out of the trust, and to pay the expenses so incurred. 3 
 But the assignment can not designate the attorney to be 
 employed by the assignee. 4 
 
 ' Heacock v. Durand, 42 111. 230 ; Nichols v. MoEwen, 17 N. Y. 22 ; 
 s. c. 21 Barb. 65. 
 
 8 Butt v. Peck, 1 Daly, 83 ; Jacobs v. Remsen, 36 N. Y. 668 ; Iselin 
 v. Dalrymple, 27 How. Pr. 137 ; s. o. 2 Robt. 142. 
 
 " Iselin v. Dalrymple, 27 How. Pr. 137 ; s. o. 2 Robt. 142. 
 
 4 Hill v. Agnew, 12 Ped. Rep. 230. Contra, Baldwin v. Pet, 22 Tex. 
 708. 
 
426 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 Debtor'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, 1 or in relation to the trust. 3 Such an allow- 
 ance 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 compromise. 
 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 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 dividend. It also postpones a distribu- 
 tion for an indefinite length of time. The assignee can not 
 reasonably conjecture what amount of expenses will be 
 incurred by the debtor in litigation, for the latter has the 
 power to determine what suits shall be defended, and to 
 what extremity 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. 8 
 
 Payment of Dividends. — There may be a requirement 
 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, 4 or unless the debt is duly 
 
 1 Sewall v. Russell, 2 Paige, 175. s Austin v. Bell, 20 Johns. 442. 
 
 3 Mead v. Phillips, 1 Sandf. Ch. 83. 
 
 4 Ashurst v. Martin, 9 Port. 566 ; U. S. Bank v. Huth, 4 B. Mon. 423. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 427 
 
 proved. 1 The amount of the demand may be limited to such 
 as may be found to be due upon examination and settlement. 2 
 A prohibition of payment, unless the debtor pronounces the 
 claim to be just, with permission to the creditors to estab- 
 lish their demands by suit or arbitration, is good. 3 Costs 
 that have accrued or may accrue may be excluded. 4 The 
 assignee may be required to exhibit a statement of his 
 accounts periodically to the debtor. 5 
 
 Composition with Creditors. — The assignee can not be 
 allowed to compound with the creditors. 6 
 
 Exclusion of Those Who Sue. — A provision exclud- 
 ing or postponing all creditors who sue the debtor or bring 
 the estate into litigation renders the assignment fraudu- 
 lent. Such a condition is calculated and intended to deter 
 creditors from attacking the deed lest they lose the bene- 
 fits of its provisions. It is a hindrance to creditors in the 
 recovery of their just demands. It not only imposes upon 
 them the necessity of acquiescing 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. 7 
 
 1 TJ. S. Bank v. Huth, 4 B. Mon. 423 ; Spencer v. Jackson, 2 E. I. 35 ; 
 TJ. S. v. Bank of U. S., 8 Bob. (La.) 262 ; Hill v. Agnew, 12 Fed. Rep. 
 230. 2 Mussey v. Noyes, 26 Vt. 462. 
 
 8 Ex parte Conway, 12 Ark. 302 ; Bobins v. Embry, 1 S. & M. Ch. 207. 
 
 4 Gates v. Labeaume, 19 Mo. 17. 
 
 6 Ex parte Conway, 12 Ark. 302 ; Robins v. Embry, 1 S. & M. Ch. 207. 
 
 * Grover v. Wakeman, 11 Wend. 187 ; s. C. 4 Paige, 23 ; Woodburn v. 
 Mosher, 9 Barb. 255 ; Hudson v. Maze, 4 111. 578 ; Smith v. Leavitts, 10 
 Ala. 92 ; Smith v. Hurst, 10 Hare, 30 ; S. c. 15 Eng. L. & Eq. 520 ; s. c. 
 17 Jur. 30; s. O. 22 L. J. Ch. (N. S.) 289; vide White v. Monsarrat, 18 
 B. Mon. 809 ; State v. Benoist, 37 Mo. 500. 
 
 ' Gimmell v. Adams. 11 Humph. 283 ; Marsh v. Bennett, 5 McLean, 
 117 ; Murray v. Riggs, 15 Johns. 571 ; s. c. 2 Johns. Ch. 565 ; vide Mc- 
 Earland v. Birdsall, 14 Ind. 126. 
 
CHAPTER XV. 
 
 ASSIGNMENTS EXACTING RELEASES. 
 
 Nature of Question. — An assignment sometimes con- 
 tains 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 eaeh shall execute a pre- 
 vious release of his whole debt, or be postponed until all 
 other creditors signing a release shall be satisfied in full, 
 is valid ; in other words, whether a debtor in failing cir- 
 cumstances 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 precarious balance which the 
 assenting creditors may leave for the satisfaction of the 
 claims of the recusant creditors. 
 
 Public Policy. — Every restraint calculated to deter a 
 debtor in failing circumstances from acting on the fears 
 and apprehensions of his creditors ought to be sustained. 
 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 debt or 
 incur the contingency of losing the whole. To sustain 
 such an assignment is to enable the debtor to prescribe his 
 
ASSIGNMENTS EXACTING RELEASES. 429 
 
 own law. The debtor dictates the terms of the settle- 
 ment. If the creditor refuses, his safest security for his 
 debt, the property of his debtor, is transferred 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 irrevocable, 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 bona fide creditor 
 from all benefit in his property who will not accede to 
 those terms. 1 
 
 Coercion. — 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 legal 
 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 remedies 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 obstructs their legal reme- 
 dies, 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 an absolute discharge from his 
 
 1 Brown v. Knox, 6 Mo. 302 ; Miller v. Conklin, 17 Geo. 430 ; Hender- 
 son v. Bliss, 8 Ind. 100. 
 
430 ASSIGNMENTS EXACTING RELEASES. 
 
 debts, and exempting his future acquisitions from all 
 liability. 1 It is taking an undue advantage of creditors to 
 impose this condition. Volenti non fit injuria, if the 
 creditors accept, but it is making volunteers by compul- 
 sion. It is mockery to say that consent under such cir- 
 cumstances is optional or voluntary. 
 
 Upon principles of morality, law and justice, a debtor 
 is bound to apply his present property and his future earn- 
 ings 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 re- 
 linquished 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 fraudulent against 
 creditors. The design of an assignment exacting releases 
 is apparent upon the face of the instrument, 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 principles 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 designed and calculated to procure a 
 release. The law will not allow a person to accomplish 
 
 1 Grover v. Wakeman, 11 Wend. 187 ; s. o. 4 Paige, 23. 
 
ASSIGNMENTS EXACTING RELEASES. 431 
 
 indirectly what he is 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 
 fraudulent design and effect upon the rights of those 
 creditors who refuse to release are obvious. 1 ' 
 
 Distinction between Conpitional and Unconditional 
 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 pur- 
 pose 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 otherwise regarded than as a fraudulent moral 
 coercion practised upon them to induce an unwilling sur- 
 render to him of their just rights. 2 It does not, therefore, 
 follow that because a debtor may grant a preference abso- 
 lutely that he may also do so conditionally. The distinc- 
 tion 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, bene- 
 ficial to the debtor himself, by a release of the debt. 
 Such a power would enable the debtor at any time to nul- 
 lify the statute and lock up his property against his credi- 
 tors until they accept the terms he chooses to dictate. 3 
 
 'McCall v. Hinkley, 4 Gill. 128; The Watchman, 1 Ware, 232. 
 • Brown v. Knox, 6 Mo. 302 ; McCall v. Hinkley, 4 Gill. 128. 
 3 Grover v. Wakeman, 11 Wend. 187 ; s. c. 4 Paige, 23 ; Albert v. 
 Winn, 5 Md. 66 ; s. C. 7 Gill. 446 ; s. c. 2 Md. Ch. 169 ; s. o. 2 Md. Ch. 42. 
 28 
 
432 ASSIGNMENTS EXACTING RELEASES. 
 
 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 admir- 
 ably adapted. It is contrived so as to create a scramble 
 among the creditors, and a scramble under such circum- 
 stances that its natural result will be an unjust advantage 
 to the debtor. It takes away from every creditor the 
 power of acting in the premises according to his individual 
 wishes and judgment, and makes his final course dependent 
 on the course adopted by every other creditor. The pur- 
 pose of producing this perplexity and embarrassment is, 
 not to effect a just distribution of the estate, but to secure 
 an important advantage to the debtor by its skillful dis- 
 tribution. 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 dis- 
 tributing his estate among them. 
 
 Future 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. It is not true 
 that parties have in view only the property in possession 
 when the contract is formed, or that the obligation of 
 indebtedness does not extend to future acquisitions. The 
 prospect of an inheritance frequently forms a leading 
 inducement to credit, and industry, talents and integrity 
 constitute a fund which is as confidently trusted to as pro- 
 
ASSIGNMENTS EXACTING RELEASES. 433 
 
 perty 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 indebtedness. 
 The cessio 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 operate to extinguish the 
 debt. His subsequent acquisitions, with some exceptions, 
 were liable until his debts were fully paid. 1 
 
 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 percentage 
 on the property distributed, or an engagement that his 
 creditors shall give him new credit. 2 In either case there 
 is a reservation of a benefit to the debtor. When there 
 is a reservation of the future earnings and acquirements, it 
 constitutes an attempt to obtain a full release by a partial 
 payment. 3 Although the statute permits a debtor to pre- 
 fer one creditor to another, it does not permit him to pre- 
 fer himself to any creditor. 
 
 Dissent of Jurists. — Wherever such an assignment 
 has been sustained it has been against the sound con- 
 viction and judgment of the courts, and with a constant 
 expression 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 
 
 1 Grover v. Wakeman, 11 Wend. 187 ; s. c. 4 Paige, 23. 
 
 5 Grover v. Wakeman, 11 Wend. 187 ; s. 0. 4 Paige, 23. 
 
 'McCall v. Hinkley, 4 Gill. 128; Albert v. Winn, 5 Md. 66; s. c. 7 
 Gill. 446 ; s. c. 2 Md. Ch. 42, 169 ; Grover v. Wakeman, 11 Wend. 187 ; 
 S. c. 4 Paige, 23. 
 
434 ASSIGNMENTS EXACTING RELEASES. 
 
 minds have yielded their own convictions. Chief Justice 
 Marshall said : " We are far from being satisfied that 
 upon general principles such a deed ought to be sus- 
 tained." ] 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." 2 Chief Justice Taney said : " The court was not 
 prepared to affirm that preferences of this character are 
 entirely consistent with the principle of the statute of 13 
 Eliz." 3 These eminent men yielded to what at the time 
 was deemed the preponderance of opinion, but the judg- 
 ment and conviction of these great ornaments and lights 
 of the law may still be challenged to support the doctrine 
 of the invalitity of such an assignment. The doctrine is 
 also supported by the weight of authority. 4 
 
 J 
 
 1 Brashear v. West, 7 Pet. 608. " Halsey v. Whitney, 4 Mason, 206. 
 
 8 White v. Winn, 8 Gill. 499. 
 
 4 Grover v. Wakeman, 11 Wend. 187; s. c. 4 Paige, 23; Albert v. 
 Winn, 5 Md. 66; S. C. 4 Gill. 446; s. c. 2 Md. Ch. 42, 169; Widgery v. 
 Haskell, 5 Mass. 144; Ingraham v. Geyer, 13 Mass. 146; Harris v. Sum- 
 ner, 19 Mass. 129; Ingraham v. Wheeler, 6 Conn. 277 ; Atkinson v. Jor- 
 dan, 5 Ohio, 295 ; S. c. Wright, 247; The Watchman, Ware, 232; Arm- 
 strong v. Byrne, 1 Edw. 79 ; Mills v. Levy, 2 Edw. 183 ; Ames v. Blunt, 
 5 Paige, 13; Van Winkle v. McKee, 7 Mo. 435 ; Brown v. Knox, 6 Mo. 
 302 ; Drake v. Eogers, 6 Mo. 317 ; Barrett v. Reed, Wright, 700; Howell 
 v. Edger, 4111. 417; Pearson v. Crosby, 23 Me. 261 ; Woolsey v. Urner, 
 Wright, 606 ; Ramsdell v. Sigerson, 7 111. 78 ; Conklin v. Carson, 11 111. 
 503 ; Vose v. Holcomb, 31 Me. 407 ; Jones v. Dougherty, 10 Geo. 273 ; 
 McBride v. Bohanan, 50 Geo. 527 ; Graves v. Boy, 13 La. 454 ; Miller v. 
 Conklin, 17 Geo. 430; Henderson v. Bliss, 8 Ind. 100; Smith v. Wood- 
 ruff, 1 Hilt. 462; Butler v. Jaffray, 12 Ind. 504; Wilde v. Rawlings, 1 
 Head, 34 ; Palmer v. Giles, 5 Jones Eq. 75 ; Hurd v. Silsbee, 10 N. H. 
 108 ; Wyles v. Beales, 67 Mass. 233 ; Edwards v. Mitchell, 67 Mass. 
 239 ; Bowles v. Graves, 70 Mass. 117 ; Francis v. Hertz, 55 Geo. 244 ; 
 Seale v. Vaiden, 10 Fed. Rep. 831. Contra, McCall v. Hinkley, 4 Gill. 
 128 ; Kettlewell v. Stewart, 8 Gill. 472 ; White v. Winn, 8 Gill. 499 ; 
 
ASSIGNMENTS EXACTING RELEASES. 435 
 
 Release while Debtor remains Owner. — A prefer- 
 ence 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 parties 
 treat upon equal terms. The property is open to the pur- 
 suit of creditors, and their ordinary legal remedies 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 assignment. 1 The assignee may 
 also covenant to obtain a release. 2 
 
 Must Convey All. — As there are some States in 
 which an assignment exacting releases is held valid, the 
 law relating to them will now be considered. 
 
 Green v. Trieber, 3 Md. 11 ; Brashear v. West, 7 Pet. 608 ; Lippincott v. 
 Barker, 2 Binn. 174; King v. Watson, 3 Price, 6 ; Halsey v. Whitney, 4 
 Mason, 206 ; Pearpoint v. Graham, 4 Wash. C. C. 232 ; Bank v. Cox, 6 
 Me. 395 ; Doe v. Scribner, 41 Me. 277 ; Nostrand v. Atwood, 36 Mass. 
 281 ; Livingston v. Bell, 3 Watts, 198 ; Lea's Appeal, 9 Penn. 504 ; Rob- 
 inson v. Rapelye, 2 Stew. 86 ; Haven v. Richardson, 5 N. H. 113 ; Todd 
 v. Bucknam, 11 Me. 41 ; Niolon v. Douglass, 2 Hill Ch. 443 ; Skipwith v. 
 Cunningham, 8 Leigh, 271 ; Ashurst v. Martin, 9 Port. 566; Hall v. Den- 
 nison, 17 Vt. 310 ; Phippen v. Durham, 8 Gratt. 457 ; Heydock v. Stan- 
 hope, 1 Curt. 471 ; Spencer v. Jackson, 2 R. I. 35 ; Dockray v. Dockray, 
 2 R. I. 547 ; Nightingale v. Harris, 6 R. I. 321 ; Gordon v. Cannon, 18 
 Gratt. 387 ; Clayton v. Johnson, 36 Ark. 406. 
 
 1 Spaulding v. Strang, 37 N. Y. 135 ; s. 0. 38 N. Y. 9 ; s. c. 32 Barb. 
 235 ; s. 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 ; 
 Renard v. Graydon, 39 Barb. 548; S. c. 25 How. Pr. 178. 
 
 2 Hastings v. Belknap, 1 Denio, 190. 
 
436 ASSIGNMENTS EXACTING RELEASES. 
 
 Such an assignment must convey all the property of 
 the debtor. 1 The creditors are entitled to the benefit of 
 the whole estate, of which they can not be deprived by an 
 arrangement which would impose upon them the necessity 
 of resorting to a part of it in exclusion of the rest. The 
 very imposition of a choice which might prove unfortunate 
 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 fraudulent, inasmuch as it 
 might be a means to extort an unfair advantage. 2 When 
 it is made by partners, it must be signed by all the part- 
 ners, 3 and convey all their property, as well their indivi- 
 dual estate as their partnership effects. 4 
 
 Not Eeserve Share of Dissenting Creditors. — If the 
 assignment stipulates that the share which would other- 
 wise 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 dis- 
 posal by the assignee, it is deemed oppressive and fraudu- 
 lent and destroys the validity of the assignment. The 
 effect is to lock up the surplus until the preferred creditors 
 
 1 Green v. Trieber, 3 Md. 11 ; Sangston v. Gaither, 3 Md. 40; Seaving 
 v. Brinkerhoff, 5 Johns. Ch. 329 ; Thomas v. Jenks, 5 Rawle., 221 ; Hen- 
 nessey v. Western Bank, 6 W. & S. 300 ; in re Wilson, 4 Penn. 430 ; Johns 
 v. Bolton, 12 Penn. 339 ; Graves v.Roy, 13 La. 454 ; Henderson v. Bliss, 
 8 Ind. 100 ; Gadsden v. Carson, 9 Rich. Eq. 252 ; Gordon v. Cannon, 18 
 Gratt. 387. Contra, Halsey v. Whitney, 4 Mason, 206 ; Bank v. Cox, 6 
 Me. 395 ; Spencer v. Jackson, 2 R. I. 35 ; Stewart v. Kerrison, 3 Rich. 
 (N. S.) 266. 
 
 'Hennessey v. Western Bank, 6 W. & S. 300 ; in re Wilson, 4 Penn. 
 430 ; Weber v. Samuel, 7 Penn. 499. 8 Maughlin v. Tyler, 47 Md. 545. 
 
 4 Insurance Co. v. Wallis, 23 Md. 173; Thomas v. Jenks, 5 Rawle, 
 221 ; Hennessey v. Western Bank, 6 W. & S. 300 ; Henderson v. Bliss, 
 8 Ind. 100 ; Gordon v. Cannon, 18 Gratt. 387. 
 
ASSIGNMENTS EXACTING RELEASES. 437 
 
 are paid off, and the others are not only hindered and 
 delayed in their remedies, but they are necessarily in- 
 volved in controversy. The property passes to the 
 assignee and can not be touched, and the only remedy 
 would be against him as assignee. 1 
 
 Reservation of Surplus. — The surplus which remains 
 after the payment in full of all the claims of the creditors 
 who assent to the deed can not be reserved to the debtor. 8 
 There must be no reservation to the debtor, either express 
 or implied. The court can not look outside of the assign- 
 ment to ascertain whether there will be a surplus or not. 
 That would make the efficacy of the instrument depend on 
 extrinsic circumstances when the law requires that its 
 intent shall be gathered from its face. When the surplus 
 is not disposed 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. 3 
 
 1 Reavis v. Garner, 12 Ala. 661 ; Sangston v. Gaither, 3 Md. 40 ; Trie- 
 ber v. Green, 3 Md. 11 ; Hollins v. Mayer, 3 Md. Ch. 343 ; Burd v. Smith, 
 4 Dall. 76 ; Austin v. Bell, 20 Johns. 442 ; Seaving v. Brinkerhoff, 5 
 Johns. Ch. 329 ; Lentilhon v. Moffatt, 1 Edw. 451. Contra, Halsey v. 
 Whitney, 4 Mason, 206 ; Andrews v. Ludlow, 22 Mass. 28 ; Dockray v. 
 Dockray, 2 R. I. 547. 
 
 - Bridges v. Hindes, 16 Md. 101 ; Grimshaw v. Walker, 12 Ala. 101 ; 
 Whedbee v. Stewart, 40 Md. 414 ; Spencer v. Slater, L. R. 4 Q. B. Div. 13 ; 
 in re Beadle, 5 Saw. 351 ; in re Broome, 3 Ben. 488; s. c. 3 N". B. R. 
 444. Contra, Andrews v. Ludlow, 22 Mass. 28; Livingston v. Bell, 3 
 Watts, 198; Mechanics' Bank v. Gorman, 8 W. & S. 304; Haven v. 
 Richardson, 5 N. H. 113 ; Skipwith v. Cunningham, 8 Leigh, 271 ; Gordon 
 v. Cannon, 18 Gratt. 387 ; Todd v. Bucknam, 11 Me. 41. 
 
 ' Malcom v. Hodges, 8 Md. 418 ; West v. Snodgrass, 17 Ala. 549. 
 
438 ASSIGNMENTS EXACTING RELEASES. 
 
 No Extrinsic Evidence. — It is the duty of the party 
 who sets up an assignment to show that the debtor has 
 done what the law requires to give it validity and effect. 1 
 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 execution. 3 The assign- 
 ment on its face must show that it conveys all the debtor's 
 property, and its terms must be inconsistent with the 
 retention of any property either real or personal. 3 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 suffi- 
 cient. 1 The words " estate of every kind and description " 
 are sufficient. 5 It is not necessary that there should be 
 words of inheritance. In a deed of trust conveying pro- 
 perty 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. 6 
 
 All the partners must unite in the execution of such 
 an assignment. 7 The right of dower of the debtor's wife 
 
 1 Sangston v. Gaither, 3 Md. 40 ; Keighler v. Nicholson, 4 Md. Ch. 86. 
 
 2 Barnitz v. Rice, 14 Md. 24. Contra, Nightingale v. Harris, 6 R. I. 
 331 ; Gordon v. Cannon, 18 Gratt. 387. 
 
 'Rosenberg v. Moore, 11 Md. 376; Barnitz v. Rice, 14 Md. 24; Seav- 
 ing v. Brinkerhon", 5 Johns. Ch. 329. 4 Barnitz v. Rice, 14 Md. 24. 
 
 6 Farquharson v. Eichelberger, 15 Md. 63 ; Bridges v. Hindes, 16 Md. 
 101. 
 
 6 Farquharson v. Eichelberger, 15 Md. 63 ; Spessard v. Rohrer, 9 Gill. 
 261 ; Angell v. Rosenberg, 12 Mich. 241. 
 
 ' In re Wilson, 4 Penn. 430 ; Hennessey v. Western Bank, 6 W. & S. 
 300; vide Gordon v. Cannon, 18 Gratt. 387. 
 
ASSIGNMENTS EXACTING RELEASES. 439 
 
 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 assignment. All he has 
 a right to ask is that the assets of his debtors, both indi- 
 vidual and partnership, shall be made liable for the pay- 
 ment of his debt. 2 
 
 A provision for the payment of forty per cent., with a 
 stipulation for a return of the surplus, renders the deed 
 void. 3 If the deed professes to convey all, but assigns 
 only a portion, it is fraudulent. 4 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 fraudulent conveyances. 6 
 
 Reasonable Time. — An assignment 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 
 
 ' Breitenbach v. Dungan, 1 A. L. Beg. 419. 
 
 s 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 v. Durham, 8 Gratt. 457, need not be included, and 
 that a small sum might be reserved to pay small debts. Skipwith v. Cun- 
 ningham, 8 Leigh, 271. 
 
 3 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 
 B. I. 321. 
 
 4 Le Prince v. Guillemot, 1 Eich. Eq. 187 ; Nightingale v. Harris, 6 
 E. I. 321. 
 
 'Stewart v. Spencer, 1 Curt. 157; Spencer v. Jackson, 2 E.I. 35; 
 Nightingale v. Harris, 6 E. I. 321 ; Foley v. Bitter, 34 Md. 646. 
 6 Doe v. Scribner, 41 Me. 277. 
 
440 ASSIGNMENTS EXACTING RELEASES. 
 
 may not afford, and to make up their minds deliberately 
 and understandingly whether they will accept or reject 
 the offer made to them. If this is not done when it can 
 conveniently be done, the omission is a badge of fraud. 1 
 What is a reasonable time is a matter 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. 2 
 If no time is fixed within which the release must be exe- 
 cuted, the deed is void. 3 Two months 4 and six months 5 
 have been deemed sufficient. Nine months has been 
 considered too long." A different time may be allowed to 
 resident and non-resident creditors. 7 
 
 No doubt which may exist as to the construction of 
 the assignment, 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 assignment will be valid. 8 
 
 Preferences. — An assignment need not convey the 
 property for the benefit of all creditors equally, but may 
 give preferences, 9 and confer a benefit upon some creditors 
 
 ' Gordon v. Cannon, 18 Gratt. 387. 
 
 2 Halsey v. Whitney, 4 Mason, 206 ; Pearpoint v. Graham, 4 Wash. 
 C. C. 232 ; Ashurst v. Martin, 9 Port. 566. 
 
 3 Henderson v. Bliss, 8 Ind. 100 ; Pearpoint v. Graham, 4 Wash. C. C. 
 232. 
 
 4 Pearpoint v. Graham, 4 Wash. C. C. 232; Gordon v. Cannon, 18 
 Gratt. 387. Contra, Fox v. Adams, 5 Me. 245. 
 
 6 Halsey v. Whitney, 4 Mason, 206 ; Ashurst v. Martin, 9 Port. 566. 
 « Burd v. Smith, 4 Dall. 76. 
 
 7 Hennessey v. Western Bank, 6 W. & S. 300. 
 
 8 Gordon v. Cannon, 18 Gratt. 387. 
 
 9 Maennel v. Murdock. 13 Md. 164 ; Gordon v. Cannon, 18 Gratt. 387. 
 
ASSIGNMENTS EXACTING RELEASES. 441 
 
 absolutely, and to others only upon condition. 1 The pro- 
 perty may be delivered in specie to the creditors 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, 2 and the question of prime cost may be left to be 
 settled by the assignee. 3 No provision can be made in 
 favor of creditors who have released under a prior assign- 
 ment. 4 
 
 The 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. 5 An assignment 
 may provide for the release of sureties. 6 It is not neces- 
 sary that the creditors should assent before the assign- 
 ment is recorded. 7 One partner is competent in his own 
 name, or in the name of the firm, to release a debt, and 
 for the same reason he may enter into a composition and 
 execute an assignment, and it will release the debt. A 
 signature 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. 8 
 
 When the taint which avoids an assignment is apparent 
 on the face of the instrument, a release is made with full 
 knowledge of the fraud, and does not give it validity. 9 
 Such an assignment, however, is not binding upon the 
 creditors who execute releases until it is declared void by 
 
 1 Rankin v. Lodor, 21 Ala. 380. 2 Bayne v. Wylie, 10 Watts, 309. 
 
 3 Bayne v. Wylie, 10 Watts, 309. i Nightingale v. Harris, 6 R. I. 321. 
 
 6 Bayne v. Wylie, 10 Watts, 309. 6 Bank v. Cox, 6 Me. 395. 
 
 ' Haven v. Richardson, 5 N. H. 113. 
 
 8 Halsey v. Whitney, 4 Mason, 206. • In re Wilson, 4 Penn. 430. 
 
442 ASSIGNMENTS EXACTING RELEASES. 
 
 a competent court. As the assignment is void, the con- 
 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 original 
 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 release. 1 
 
 ' Insurance Co. v. Wallis, 23 Md. 173 ; Maughlin v. Tyler, 47 Md. 545. 
 
CHAPTER XVI. 
 
 HOW FAR A FRAUDULENT TRANSFER IS VOID. 
 
 Good between Parties. — The statute was designed 
 solely to protect the rights of creditors, and consequently 
 it renders a fraudulent transfer void only as against them, 
 and makes no provision whatever in regard 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 legisla- 
 ture designed to protect, and thus left the relative rights 
 of the parties to the provisions of the common law. 1 A 
 conspiracy to defraud creditors is an offense 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 application of the maxim, " In pari delicto melior 
 est conditio defendentis." Porro autem si et dantis et exci- 
 pientis turpis causa sit, possessorem potiorem esse et ideo 
 repetitwnem cessare? The principle that a collusive con- 
 tract binds the parties to it is a principle which commends 
 itself no less to the moralist than to the jurist, for there 
 is no obligation upon any one to extricate a rogue from his 
 
 ' Xellis v. Clark, 4 Hill, 424 ; s. c. 20 Wend. 24. 
 'Dig. Lib. 12, Tit. 5 (C.) 8. 
 
444 HOW FAR A FRAUDULENT TRANSFER IS VOID. 
 
 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 law 
 were to repair the accidents of an unsuccesful trick. A 
 fraudulent grantee, therefore, is allowed to retain the pro- 
 perty, not for any merit of his own, but for the demerit 
 of his confederate, in accordance with a wise and liberal 
 policy, which requires that the consequences of a fraudu- 
 lent experiment shall be made as disastrous as possible. 1 
 The law endeavors to environ a debtor with all possible 
 perils and make it appear that honesty is the best policy. 2 
 
 Binds Grantor and His Representatives. — A fraud- 
 ulent transfer is good as against the grantor, 3 his heirs, 4 
 
 1 Stewart v. Kearney, 6 Watts, 453 ; Falconer v. Jones, 3 Dev. 334. 
 
 * Murphy v. Hubert, 16 Penn. 50. 
 
 8 Stewart v. Iglehart, 7 G. & J. 132 ; Freeman v. Sedgwick, 6 Gill. 28 ; 
 Phettiplace v. Sayles, 4 Mason, 312 ; Canton v. Dorchester, 62 Mass. 525 ; 
 Terrell v. Imboden, 10 Leigh, 321 ; Simpson v. Graves, BileyCh. 219, 232; 
 Gilford -v . Ford, 5 Vt. 532 ; Hartley v. M' Annuity, 4 Yeates, 95 ; Stewart 
 v. Dailey, 6 Litt. 212 ; Chessman v. Exall, 6 Exch. 341 ; Sumner v. Mur- 
 phy, 2 Hill (S. C.) 488 ; Leshey v. Gardner, 3 W. & S. 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 v. Curlin, 
 
 1 Humph. 466 ; Noble v. Noble, 26 Ark. 317 ; Pratt v. Cox, 22 Gratt. 
 330; Edwards v. Haverstick, 53 Ind. 348; Bowser v. Bowser, 82 Penn. 
 57 ; Kenney v. Con. Va. M. Co., 4 Saw. 382 ; Ybarra v. Lozenzana, 53 
 Cal. 197 ; Maher v Bovard, 14 Nev. 324 ; Schuman v. Peddicord, 50 Md. 
 560; Wolfe v. Beecher Manuf. Co., 47 Conn. 231 ; Shallcross v. Deats, 
 43 N. J. 177 ; vide Taylor v. Bowers, L. R. 1 Q. B. Div. 291. 
 
 4 Getzler v. Saroni, 18 111. 511 ; Cushwa v. Cushwa, 5 Md. 44 ; Danzey 
 v. Smith, 4 Tex. 411 ; Kimball v. Eaton, 8 N. H. 391 ; Jewell v. Porter, 
 31 N. H. 34; Jackson v. Garnsey, 16 Johns. 189; Ober v. Howard, 11 
 Mo. 425 ; Stewart v. Ackley, 52 Barb. 283 ; Dearman v. Radclifte, 5 Ala. 
 192 ; Reichert v. Castator, 5 Binn. 109 ; Jackson v. Dutton, 3 Harring. 
 98 ; s. c. 2 Del. Ch. 86 ; Barton v. Morris, 15 Ohio, 408 ; Trempner v. 
 Barton, 18 Ohio, 418 ; Church v. Church, 4 Yeates, 280 ; Laney v. Laney, 
 
 2 Ind. 196 ; McLaughlin v. McLaughlin, 16 Mo. 242 ; Lockerson v. Still- 
 well, 13 N. J. Eq. 357 ; Anderson v. Rhodus, 12 Rich. Eq. 104 ; Gillespie 
 v. Gillespie, 2 Bibb. 89 ; Horner v. Zimmerman, 45 111. 14. 
 
HOW FAR A FRAUDULENT TRANSFER IS VOID. 445 
 
 executors, 1 administrators, 2 agents, 3 parties claiming under 
 
 1 Dorsey v. Smithson, 6 H. & J. 61 ; Welsh v. Bekey, 1 Penna. 57 ; 
 Orlabar v. Harwar, Comb. 348 ; Odronaux v. Helis, 3 Sandf. Ch. 512 ; 
 Anderson v. Dunn, 19 Ark. 650 ; Eubanks v. Dobbs, 4 Ark. 173 ; Howell 
 v. Edmonds, 47 111. 79 ; Contra, ex parte Adams, 2 Red. 66. 
 
 5 Hawes v. Leader, Yelv. 196 ; s. c. Cro. Jac. 270 ; Thomas v. Soper, 
 5 Munf. 28 ; Kinnemon v. Miller, 2 Md. Ch. 407 ; King v. Clarke, 2 Hill 
 Ch. 611 ; Coltraine v. Causey, 3 Ired. Eq. 246 ; Cocke v. Bromley, 6 
 Munf. 184 ; Martin v. Martin, 1 Vt. 91 ; Dunbar v. McFall, 9 Humph. 
 505 ; Choteau v. Jones, 11 111. 301 ; 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 v. Chandler, 13 Tex. 5 ; Crosby v. De 
 Graffenreid, 19 Geo. 290 ; Beale v. Hall, 22 Geo. 431 ; Winn v. Bamett, 
 31 Miss. 653 ; Gully v. Hull, 31 Miss. 20 ; George v. Williamson, 26 Mo. 
 190 ; Brown v. Einley, 18 Mo. 375 ; Jordan v. Fenno, 13 Ark. 593 ; Las- 
 siter v. Cole, 8 Humph. 621 ; Adams v. Bro^hton, 13 Ala. 731 ; Moore 
 v. Minerva, 17 Tex. 20 ; Moody v. Fry, 3 Humph. 567 ; Dennison v. Ely, 
 1 Barb. 610 ; Osborne v. Moss, 7 Johns. 161 ; Harmon v. Harmon, 63 111. 
 512 ; Rodin v. Murphy, 10 Ala. 804 ; Rhein v. Tull, 35 N. C. 57 ;, White 
 v. Russell, 79 111. 155 ; Hall v. Callahan, 66 Mo. 316 ; Crawford v. Lehr, 
 20 Kans. 509 ; Beebe v. Saulter, 87 111. 518. Contra, Buehler v. Glonin- 
 ger, 2 Watts, 226 ; Stewart v. Kearney, 6 Watts, 453 ; Williams v. Wil- 
 liams, 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, 181 ; Caswell v. Caswell, 28 
 Me. 232 ; Morris v. Morris, 5 Mich. 171 ; Holland v. Cruft, 37 Mass. 321 ; 
 Drinkwater v. Drinkwater, 4 Mass. 354 ; Norton v. Norton, 59 Mass. 524 ; 
 Gibbons v. Peeler, 25 Mass. 254; Welsh v. Welsh, 105 Mass. 385; Sullice 
 v. Gradenigo, 15 La. An. 582 ; Hunt v. Butterworth, 21 Tex. 133 ; Allen 
 v. Allen's Adm., 18 Ohio St. 234; Allen v. Mower, 17 Vt. 61 ; Love v. 
 Mickals, 11 Ind. 227 ; McLane v. Johnson, 43 Vt. 48 ; Abbott v. Tenney, 
 18 N. H. 109 ; Garner v. Graves, 54 Ind. 188 ; Martin v. Bolton, 75 Ind. 
 295 ; Fordy v. Exempt Fire Co., 50 Cal. 299 ; Barton v. Hosner, 31 N. 
 Y. Supr. 467. The right of executors and administrators to impeach a 
 fraudulent conveyance when the estate is insolvent is conferred by statute 
 in Massachusetts, Vermont, New Jersey, North Carolina, Wisconsin, 
 Michigan, Ohio, Indiana, Louisiana, California, New York and Texas, 
 and several of the above cases are upon those statutes. It was held in 
 the following cases that property fraudulently 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 v. 
 Pollard, 4 B. Mon. 66. Where the personal representative proceeds under 
 
446 HOW FAR A FRAUDULENT TRANSFER IS VOID. 
 
 him, 1 and his vendees and grantees. 2 A fraudulent receipt 
 to a person who owes money to the debtor is as binding 
 as any other transfer. 3 If the property is transferred by 
 a deed with covenant of warranty, and the debtor subse- 
 quently purchases the property at a sale under an execu- 
 tion against him, the title thus obtained enures to the 
 benefit of the fraudulent grantee, and the debtor 4 and 
 parties purchasing from him with notice of the prior 
 transfer 5 are estopped by the covenant from denying or 
 resisting the title of the fraudulent grantee. But if he 
 
 a statute or otherwise, he can only impeach a transfer when the estate is 
 insolvent. Wall v. Provident Inst., 85 Mass. 96 ; Hess v. Hess, 19 Ind. 
 238; Pringle v. Pringle, 59 Penn. 281. 
 
 3 Newson v. Douglass, 7th. & J. 417 ; Owen v. Dixon, 17 Conn. 492. 
 1 Moseley v. Moseley, 15 N. Y. 334 ; Wright v. Wright, 2 Litt. 8 ; 
 
 Boane v. Vidal, 4 Munf. 187 ; Neeley v. Wood, 10 Terg. 486 ; Douglass 
 v. Dunlap, 10 Ohio, 162 ; McClesky v. Leadbetter, 1 Kelly, 551 ; Ellis v. 
 McBride, 27 Miss. 155 ; Zimmerman v. Schoenfeldt, 6 T. & U. 142. 
 
 a Bull v. Harris, 18 B. Mon. 195 ; Doolittle v. Lyman, 44 N. H. 608 ; 
 Triplett v. Witherspoon, 70 (N. C.) 589 ; Campbell v. Whitson, 68 111. 
 240; Vanzant v. Davies, 6 Ohio St. 52; Marston v. 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 ; 
 Gregory v. Haworth, 25 Cal. 653 ; Bayless v. Elcan, 1 Cold. 96 ;' Lawton 
 v. Gordon, 34 Cal. 36 ; Fowler v. Stoneum, 11 Tex. 478 ; Hubbs v. Brock- 
 well, 3 Sneed, 574 ; Eddins v. Wilson, 1 Ala. 237 ; Douglass v. Dunlap, 
 10 Ohio, 162 ; Garrison v. Brice, 3 Jones (N. C.) 85 ; Prestidge v. Cooper, 
 54 Miss. 74 ; Gregory v. Wheedon, 8 Neb. 373 ; vide Lewis v. Castleman, 
 27 Tex. 407 ; Plummer v. Worley, 13 Ired. 423 ; Ingles v. Donalson, 2 
 Hayw. 57 ; Searcy v. Carter, 4 Sneed, 271 ; Mason v. Baker, 1 A. K. 
 Marsh. 208 ; Lewis v. Love, 2 B. Mon. 345 ; Cox v. Jackson, 88 Mass. 
 108 ; Wyman v. Brown, 50 Me. 139 ; Newson v. Lycan, 3 J. J. Marsh. 
 440 ; Elliott v. Horn, 10 Ala. 348 ; Lewis v. Caperton, 8 Gratt. 148 ; Mc- 
 Guire v. Miller, 15 Ala. 394 ; Beall v. Williamson, 14 Ala. 55 ; Hender- 
 son v. Dickey, 50 Mo. 161 ; Howe v. Waysman, 12 Mo. 169 ; Hurley v. 
 Oeler, 44 Iowa, 642. 
 
 8 Sickman v. Lapsley, 13 S. & K. 224. 
 
 4 Dunbar v. McFall, 9 Humph. 505; Trempner v. Barton, 18 Ohio, 
 418 ; Gibbs v. Thayer, 60 Mass. 30 ; Barton v. Morris, 15 Ohio, 408. 
 
 6 Perry v. Calvert, 22 Mo. 361. 
 
HOW FAR A FRAUDULENT TRANSFER IS VOID. 447 
 
 makes a conveyance with a covenant of warranty after 
 the making of the fraudulent conveyance, and then 
 acquires the title of one who buys the property at a sale 
 under an execution, the purchase will be held to support 
 the last rather than the first conveyance. The debtor's 
 executor, however, may purchase the property after a sale, 
 and will obtain a good title. 2 
 
 Executory 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 agree- 
 ment arising out of a fraudulent transaction. The sup- 
 pression of fraud is far more likely in general to be accom- 
 plished by leaving the parties without remedy against 
 each other, and thus introducing a preventive 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 founded. Pacta quae 
 contra leges et constitutiones vel contra bonos mores sunt, 
 nullam vim habere mdubitati juris est? 
 
 Equity will not Enforce Agreements. — Whenever a 
 party to a fraud applies to a court of equity, the reasons 
 for withholding relief are much stronger, for he who seeks 
 equity must have an honest and just claim. Equity, there- 
 fore, never decrees a specific performance of an agreement 
 made by the fraudulent grantee to re-convey the property 
 
 1 Arnold v. Hymes, 5 Fed. Rep. 578. 
 
 5 Smith v. Pollard, 4 B. Mon. 66. 3 Dig. Lib. 2, tit. 3, § 6. 
 
 29 
 
448 HOW FAR A FRAUDULENT TRANSFER IS VOID. 
 
 to the debtor. The violation of such an agreement is no 
 fraud. Fraus non est fallere fallentem} For the same 
 reason the trusts in a fraudulent deed cannot be enforced. 8 
 The grantor, however, may maintain an action to enforce 
 a vendor's lien for the purchase money, if the grantee does 
 not set up the fraud as a defense. 3 
 
 Relief when there is Fraud on Debtor. — The rule 
 that a debtor is not entitled to any relief against a fraudu- 
 lent conveyance only applies when the parties are in pari 
 delicto. It is founded on principles of public policy for 
 purposes of justice, and can never be made the means of 
 sustaining an injustice. If the debtor, therefore, acts 
 
 1 Anon. Gary, 25 ; Gaylord v. Couch, 3 Day, 223 ; Freeman v. Sedg- 
 wick, 6 Gill. 28 ; Canton v. Dorchester, 62 Mass. 525 ; Sweet v. Tinslar, 
 52 Barb. 271 ; Stewart v. Iglehart, 7 G. & J. 132 ; Wright v. Wright, 2 
 
 Litt. 8 ; Mulford v. , 2 Hayw. 244 ; James v. Bird, 8 Leigh, 510 ; 
 
 Smith v. Elliott, 1 Pat. & H. 307 ; Hollis v. Morris, 2 Harring. 128 ; 
 Payne v. Bruton, 10 Ark. 53 ; Jones v. Gorman, 7 Ired. Eq. 21 ; Peacock 
 v. Terry, 9 Geo. 137 ; Gait 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. Cawthome, 19 Ves. 166; 
 Franklin v. Stagg, 22 Mo. 193 ; Martin v. Martin, 5 Bush, 47 ; Roane v. 
 Vidal, 4 Munf. 187 ; Joyce v. Joyce, 5 Cal. 161 ; Jones v. Bead, 3 Dana, 
 540 ; St. John v. Benedict, 6 Johns. Ch. Ill ; Baldwin v. Campfleld, 8 
 N. J. Eq. 891 ; Marlatt v. Warwick, 19 N. J. Eq. 443 ; Lokerson v. 
 Stillwell, 13 K. J. Eq. 357 ; Hershey v. Whiting, 50 Penn. 240 ; Holliday 
 v. Holliday, 10 Iowa, 200 ; Eyre v. Eyre, 19 N. J. Eq. 42 ; Stephens v. 
 Harrow, 26 Iowa, 458 ; Smith v. Boquet, 27 Tex. 507 ; Owen v. Sharp, 12 
 Leigh, 427 ; Cutter v. Tuttle, 19 N. J. Eq. 549 ; Hassam v. Barrett, 115 
 Mass. 256 ; Walton v. Tusten, 49 Miss. 599 ; Fletcher v. Fletcher, 2 Mac- 
 Arthur, 38 ; Gage v. Gage, 36 Mich. 229 ; Dunaway v. Robertson, 95 
 111. 419; Ryan v. Ran, 97 111. 38; Harrison v. Bailey, 14 S. C. 334; 
 Nickodemus v. Nickodemus, 45 Mich. 385 ; Hood v. Frelison, 31 La. An. 
 577 ; vide Taylor v. Weld, 5 Mass. 109 ; Barnard v. Sutton, 12 L. J. Ch. 
 (N. S.) 312 ; Smith v. , 2 Hayw. 229. 
 
 8 Stewart v. Ackley, 52 Barb. 283; Sweet v. Tinslar, 52 Barb. 271; 
 Murphy v. Hubert, 16 Penn. 50. 
 
 8 Chapman v. Callahan, 66 Mo. 299. 
 
HOW FAR A FRAUDULENT TRANSFER IS VOID. 449 
 
 under circumstances of oppression, imposition or undue 
 influence, so that it appears that his guilt is subordinate to 
 that of the grantee, equity will grant relief, not on account 
 of any right in the debtor, but for the purpose of prevent- 
 ing the perpetration of a greater fraud by the grantee. 
 The parties although m delicto are not m pari delicto, and 
 a remedy is given on the ground of mala fides in the 
 grantee and the necessity of preventing imposition. In 
 these cases the debtor is not be regarded as having given 
 his free unbiassed consent to the conveyance, and he is 
 relieved on the ground that the conveyance is not strictly 
 a valid conveyance because his mind and will have not 
 sanctioned it. No man can be deemed a particeps criminis 
 in a transaction unless he enters into it freely, and he does 
 not so enter into it if he is driven into it by oppression or 
 enticed into it by imposition or undue influence. This 
 exception to the general rule will be made plainer by a 
 few illustrations. If a man being weak of mind is induced 
 to make a conveyance by a false representation of a lia- 
 bility when none exists, he is entitled to relief, although 
 he made it for the purpose of avoiding such supposed 
 liability, for in such case he is the victim of a gross mis- 
 representation. 1 If a debtor, being in a position where 
 his property is liable to be sacrificed by a creditor, is 
 induced by the latter to make a conveyance to him, relief 
 will be granted on account of the oppression and undue 
 influence. 2 Relief will be given where the grantee occu- 
 pies a relation of confidence towards the debtor, who is a 
 man of weak mind and in needy circumstances, and obtains 
 a conveyance by the exercise of his ascendency arising 
 from confidence and dependence. 3 So also if a feme covert 
 
 1 Prewett v. Coopwood, 30 Miss. 369 ; Beale v. Hall, 22 Geo. 431. 
 3 Austin v. Winston, 1 H. & M. 33 ; Keane v. Kyne, 2 Mo. Ap. 317. 
 8 Dealty v. Murphy, 3 A. K. Marsh. 472 ; Poston v. Balch, 69 Mo. 115. 
 
450 HOW FAR A FRAUDULENT TRANSFER IS VOID. 
 
 is induced by fraudulent practices of the grantee to unite 
 with her husband in the conveyance of her own estate for 
 the purpose of defrauding his creditors by depriving them 
 of a remedy against his interest in it, she may have the 
 transfer set aside. 1 If a debtor, being in embarrassed cir- 
 cumstances, 2 or incompetent to manage his affairs with 
 prudence and discretion, 3 seeks the advice of an attorney 
 and makes a conveyance to the latter under his advice, he 
 is entitled to relief. In such a case the relief does not 
 depend on the fact that the grantee is an attorney, except 
 as it places him in a relation of trust and confidence to the 
 debtor, but upon the undue influence and imposition prac- 
 tised by means of that relation. If the debtor, therefore, 
 is a man of intelligence and large business experience, and 
 by no means such a person as would be likely or liable to 
 be inveigled, misled or unduly influenced by the fraudulent 
 suggestion or advice of an attorney, and the whole trans- 
 action from the beginning to the end is a joint scheme, 
 the one co-operating with the other and both being equally 
 guilty, he is not entitled to relief. 4 These examples are 
 sufficient to show that the exception to the general rule is 
 established to prevent weak or necessitous men from being 
 overreached, oppressed or defrauded, and it is kept strictly 
 within these limits. In cases of this kind it is not material 
 to inquire into the degrees of guilt of either party, for 
 whether the debtor is more or less guilty than the grantee, 
 the conveyance is alike defective for want of free mental 
 sanction. Where the debtor, however, acts freely he is 
 not entitled to relief, although he may not, in the forum 
 
 1 Stewart v. Iglehart, 7 G. & J. 132. 
 
 2 Goodenough v. Spencer, 2 T. & C. 509 ; Ford v. Harrington, 16 
 N. Y. 285. 
 
 Treelove v. Cole, 41 Barb. 318. 
 4 Roman v. Mali, 42 Md. 513. 
 
HOW FAR A FRAUDULENT TRANSFER IS VOID. 451 
 
 of absolute justice, be quite so bad as the grantee. 1 Any 
 attempt to inquire into the relative criminality of the 
 parties in such a case would involve a determination of 
 mere questions of morality, with which the law never 
 deals. If the shades of difference, moreover, are slight, 
 an attempt to measure their comparative demerits by a 
 moral standard would be a difficult and speculative under- 
 taking, and lead to metaphysical refinements not necessary 
 to the attainment of practical justice. Nor does mere 
 difference in mental capacity constitute a ground of relief 
 where the debtor has sufficient capacity to make a valid 
 contract, for there is no scale by which the grades of 
 intellect of different men can be measured. The law 
 therefore does not undertake to measure the size of men's 
 understandings. It simply inquires whether he is pos- 
 sessed of legal capacity — whether he is able to«know right 
 from wrong — and if he is, refuses relief, although the 
 grantee is his superior in intelligence. 3 Moreover, if it 
 were necessary to gauge the intelligence and moral sense 
 of the parties where they are compotes mentis, in order to 
 ascertain their equality or inequality as moral and intelli- 
 gent agents, and only apply the rule where the parties are 
 exactly equal in their mental and moral attributes, the 
 rule itself would be abrogated, for men are so differently 
 constituted in their mental and moral endowments that no 
 case would occur in which the parties would be exactly 
 equal. The law, therefore, inquires not as to the pro- 
 priety or impropriety of the conveyance, but as to the 
 grantor's capacity to make it, and whether it was made 
 freely with his full assent. 
 
 1 Eenfrew v. McDonald, 18 N. Y. Supr. 254 ; Fletcher v. Fletcher, 2 
 MacArthur, 38 ; Trimble v. Doty, 16 Ohio St. 118. 
 s Smith v. Elliott, 1 Pat. & H. 307. 
 
452 HOW FAR A FRAUDULENT TRANSFER IS VOID. 
 
 Certain Agreements Valid. — In order to defeat an 
 attempt to enforce a secret contract it is not necessary 
 that any particular creditors shall be mentioned by name, 
 or that the fraud shall be successful. The names of the 
 creditors and the success of the fraud are merely matters 
 of evidence. 1 If there is, however, no valid claim against 
 the grantor, an agreement to reconvey may be enforced, 
 although the transfer is made to defeat an anticipated 
 recovery in an action against him. The statute only pro- 
 tects 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. 3 An arrangement made in good faith, 
 by which a party purchases the debtor's property at a sale 
 under an execution with a promise to reconvey to the 
 debtor upoa the payment of the purchase money, may be 
 enforced. 3 If the parties voluntarily rescind the fraudu- 
 lent conveyance, a subsequent arrangement between them 
 in regard to the same property will not be tainted by the 
 previous fraud. 4 
 
 Eights of Grantor. — If the conveyance by mistake or 
 through the fraud of the grantee conveys more property 
 than the debtor intended to convey, he may maintain a 
 suit in a court of equity to reform the deed. Though 
 engaged in an illegal transaction, and unable to assert or 
 
 ' Blount v. Costen, 47 Geo. 534. 
 
 2 Dearman v. Dearman, 4 Ala. 521 ; Brady v. Ellison, 2 Hayw. 348 ; 
 Smith v. Bowen, 2 Hayw. 296 ; Baker v. Gilman, 52 Barb. 26 ; Boyd v. 
 De La Montagnie, 73 N. Y. 498. Contra, Tantum v. Miller, 11 N. J. Eq. 
 551 ; Harris v. Harris, 23 Gratt. 737 ; Cameron v. Komille, 53 Tex. 238 ; 
 Fletcher v. Fletcher, 2 MacArthur, 38. 
 
 s Fluharty v. Beatty, 4 W. Va. 514. 
 
 4 Parker v. Tiffany, 52 111. 286 ; Matthews v. Buck, 43 Me. 265. 
 
HOW FAR A FRAUDULENT TRANSFER IS VOID. 453 
 
 maintain any rights or remedies founded on the unlawful 
 thing done or intended to be done, still he does not forfeit 
 any right or privilege beyond that, or with respect to any 
 other matter or thing not within the purpose of the 
 wrongful act, and not affected by the corrupt intent or 
 caused or produced in consequence of it. To the extent of 
 his intended wrong he is without remedy, but in all 
 other respects his rights and remedies are the same as if 
 no such wrong had been done or intended. Though guilty 
 of a wrong or transgression of the law in one particular, 
 he does not become an outlaw or forfeit his right to legal 
 protection in all others, nor lay himself open to the frauds 
 and machinations of others to be practised against him 
 with impunity. It must be clearly shown that the debtor 
 seeks relief from the fruit of his own wrong or from the 
 consequences of his own unlawful act before his action can 
 be dismissed. If it be not these, but something outside 
 and independent of his unlawful act or purpose, and not 
 necessarily resulting from it nor caused or intended by him, 
 and especially if it be something arising or produced by 
 the fraudulent act or procurement of the grantee alone, 
 then he is entitled to favorable consideration, and his 
 action should be retained. 1 If the fraudulent transfer con- 
 sists of a mortgage, the debtor may file a bill to redeem 
 the property from its operation. 2 A bailor may maintain 
 an action to recover the property although the bailment 
 was made for the purpose of delaying, hindering or 
 defrauding his creditors. 3 
 
 Rights of Grantee. — If the transfer is made to two 
 grantees, an agreement between them whereby one pur- 
 
 1 Clemens v. Clemens, 27 Wis. 637. 
 
 2 Smith v. Quartz Mining Co., 14 Cal. 242 ; Jones v. Rah'illy, 16 Minn. 
 320. 8 Gowan v. Gowan, 30 Mo. 472. 
 
454 HOW FAR A FRAUDULENT TRANSFER IS VOID. 
 
 chases the property under a judgment, with the under- 
 standing that the title shall remain in the other, can not 
 be enforced when it is a part of the original fraudulent 
 scheme. 1 An agreement for a division, however, which 
 has been acted upon, and upon the faith of which expen- 
 ditures have been made, may be enforced. 3 If the fraudu- 
 lent grantee executes the secret fraudulent trust under 
 which he received the transfer, one cestui que trust can 
 not defeat the fall execution of the trust, nor appropriate 
 the exclusive benefit to himself, by relying upon the 
 fraudulent intent with which the transfer was made. 3 
 Equity will not decree a sale at the instance of one tenant 
 in common when the land is incapable of partition, for the 
 hazards of an unsound title should remain with those who 
 have taken it. 4 
 
 Actions at Law upon Executory Contracts. — The 
 principles upon which a specific performance of an agree- 
 ment to reconvey is refused apply also to an action at law 
 upon such an agreement, or upon a note given as the con- 
 sideration for a fraudulent transfer. There is a marked 
 and settled distinction between executory and executed 
 contracts of a fraudulent character. Whatever the 
 parties to an action have executed for fraudulent 
 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 
 
 1 Waller v. Mills, 3 Dev. 515. 
 
 8 Proseus v. Mclntyre, 5 Barb. 424. 
 
 8 Turner v. Campbell, 3 Gratt. 77 ; s. c. 1 P. & H. 256. 
 
 4 Haydon v. Denslow, 27 Conn. 335. 
 
HOW FAE A FRAUDULENT TRANSFER IS VOID. 455 
 
 it finds them. 1 A fraudulent note, whether under seal 2 or 
 not, 3 can not be enforced, although the proof of the fraud 
 comes from the maker. If a note constitutes the con- 
 sideration for a fraudulent transfer, it will not be rendered 
 valid by including an additional honest consideration, for 
 the rule is that where one part of an entire contract is 
 void the whole is void. 4 The maker may also show in an 
 action upon such a note that the property has been taken 
 away by the grantor's creditors, 5 but such a defense would 
 not be good against a bona fide holder. 8 • A receiver 
 appointed in proceedings supplemental to an execution is 
 not, however, a bona fide purchaser for value. 7 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 v. Morley, Hill & D. Sup. 29 ; Niver v. Best, 10 Barb. 
 369 ; Walker v. McConnico, 10 Yerg. 228 ; Norris v. Norris, 9 Dana, 317 ; 
 Boden v. Murphy, 10 Ala. 804 ; Walton v. Bonham, 24 Ala. 513 ; Harvin 
 v. Weeks, 11 Rich. 601 ; Welby v. Armstrong, 21 Ind. 489 ; Powell v. 
 Inman, 8 Jones (N. C.) 436 ; Church v. Muir, 33 N. J. 318 ; Merrick v. 
 Butler, 2 Lans. 103 ; Starin v. Kelly, 36 N. Y. Sup. 366 ; Gordon v. 
 Clapp, 113 Mass. 335 ; Ayer v. Duncan, 50 Cal. 325 ; McCausland v. 
 Ralston, 12 Nev. 195 ; Hamilton v. Scull, 25 Mo. 165 ; Fenton v. Ham, 
 35 Mo. 409 ; Harwood v. Knapper, 50 Mo. 436 ; Goudy v. Gebhart, 10 
 Ohio St. 262. Contra, Findley v. Cooley, 1 Blackf. 262; Sherk v. 
 Endress, 3 W. & S. 255 ; Telford v. Adams, 6 Watts, 429 ; Moore v. 
 Thompson, 6 Mo. 353; Dyer v. Homer, 39 Mass. 253 ;. Conner v. Car- 
 penter, 28 Vt. 237 ; Carpenter v. McLure, 39 Vt. 9 ; Harvey v. Varney, 
 98 Mass. 118 ; Springer v. Drosch, 32 Ind. 486 ; Handy v. Phila. & Read. 
 R. R. Co., 1 Phila. 31 ; O'Neil v. Chandler, 42 Ind. 471 ; Harris v. Harris, 
 23 Gratt. 737 ; Clemens v. Clemens, 28 Wis. 637 ; Dietrich v. Koch, 35 
 Wis. 618 ; Van Wy v. Clark, 50 Ind, 259 ; Davis v. Mitchell, 34 Cal. 81 ; 
 Butler v. Moore, 73 Me. 151. 
 
 ! Powell v. Inman, 7 Jones (N. C.) 28 ; Goudy v. Gebhart, 1 Ohio St' 
 262. 
 
 3 Ayer v. Duncan, 50 Cal. 325 ; Goudy v. Gebhart, 1 Ohio St. 262 ; 
 Merrick v. Butler, 2 Lans. 103. * Niver v. Best, 10 Barb. 369. 
 
 - Dyer v. Homer, 39 Mass. 253 ; Bailey v. Poster, 26 Mass. 139. 
 
 6 Gregory v. Harrington, 33 Vt. 241. 1 Briggs v. Merrill, 58 Barb. 389. 
 
456 HOW FAR A FRAUDULENT TRANSFER IS VOID. 
 
 made to him for a valuable consideration, although it 
 grew out of the fraudulent transaction. 1 If a note and 
 mortgage is given by the debtor to secure the amount 
 found to be due upon the settlement of a business which 
 the debtor has been permitted to carry on in the name of 
 the mortgagor under a fraudulent agreement, it may 
 nevertheless be enforced, for it is not tainted with fraud. 2 
 
 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. 3 If the grantor becomes 
 a tenant of the grantee, the grantee may maintain an 
 action to recover the possession. 4 If the debtor, after the 
 property has once been delivered, recovers the possession, 
 the grantee may have the aid of the law to regain it. 5 
 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 enforce his legal right to the property 
 by an action at law. 7 A fraudulent grantee 8 or mortgagee, 9 
 
 1 Moore v. Meek, 20 Ind. 484. 2 Heath v. Van Cott, 9 Wis. 516. 
 
 3 Cushwa v. Cushwa, 5 Md. 44 ; Anderson v. Dunn, 19 Ark. 650 ; 
 Ellis v. Higgins, 32 Me. 34 ; Murphy v. Hubert, 16 Penn. 50 ; Broughton 
 v. Broughton, 4- Rich. 491 ; Jackson v. G-arnsey, 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. 135 ; McClenny v. Floyd, 10 
 Tex. 159 ; Gillespie v. Gillespie, 2 Bibb. 89 ; Goodwyn v. Goodwyn, 20 
 Geo. 600. 4 Tufts v. Du Bignon, 61 Geo. 322. 
 
 6 Rochelle v. Harrison, 8 Port. 351. 
 
 6 Hoeser v. Kraeka, 29 Tex. 450 ; Roberts v. Lund, 45 Vt. 82. 
 
 ' Fitzgerald v. Forristal, 48 111. 228 ; Stores v. Snow, 1 Root. 181 ; 
 Gifford v. Ford, 5 Vt. 532 ; Williams v. Williams, 34 Penn. 312 ; Bibb v. 
 Baker, 17 B. Mon. 292 ; Bowman v. McKleroy, 14 La. An. 587. 
 
 8 Mason v. Baker, 1 A. K. Marsh. 208 ; Caston v. Ballard, 1 Hill, 406 ; 
 Gebhard v. Satler, 40 Iowa, 152 ; vide Greenwood v. Coleman, 34 Ala. 150. 
 
 9 Shiveley v. Jones, 6 B. Mon. 274 ; Wearse v. Peirce, 41 Mass. 141 ; 
 Demerritt v. Miles, 22 N. H. 523 ; Westfall v. Jones, 23 Barb. 9 ; Jones 
 
HOW FAR A FRAUDULENT TRANSFER IS VOID. 457 
 
 however, can not enforce any claim to or against the prop- 
 erty in a court of equity as against the debtor. 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. 1 A fraudu- 
 lent assignee of a mortgage may, however, file a bill in 
 equity to foreclose it. 2 
 
 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 consideration upon a re- 
 conveyance of the property. 3 No action at law can be 
 maintained upon a note given with a fraudulent mortgage, 4 
 or upon a covenant of warranty to recover damages when 
 the property has been taken by the grantor's creditors. 5 
 Where a deed fails to describe the property through mis- 
 take, equity will not interfere to correct the mistake so as 
 to enable the parties to consummate their purpose. 6 
 
 Surrender to Debtor. — If the grantee executes the 
 contract to reconvey he will be bound, for the law will 
 not then lend its aid to him. 7 When the reconveyance is in 
 apparent execution of the fraudulent trust for- the purpose 
 of a sale, the fraudulent grantee can not claim the pro- 
 
 v. Comer, 5 Leigh, 350 ; Miller v. Marckle, 21 111. 152 ; Brookover v. 
 Hurst, 1 Met. (Ky.) 665 ; vide Hess v. Final, 32 Mich. 515 ; Van Wy v. 
 Clark, 50 Ind. 259 ; Holt v. Creamer, 34 N. J. Eq. 181. 
 
 1 Baldwin v. Cawthorne, 19 Ves. 166. 
 
 2 Guest v. Barton, 32 N. J. Eq. 120. 
 
 3 Bryant v. Mansfield, 22 Me. 360 ; Servis v. Nelson, 14 N. J. Eq. 94. 
 
 4 Brookover v. Hurst, 1 Met. (Ky.) 665. 
 
 5 Surlott v. Beddow, 3 Mon. 109 ; Rea v. Smith, 19 Wend. 293. 
 
 6 Gebhard v. Satler, 40 Iowa, 152. 
 
 ' Dearman v. Radcliffe, 5 Ala. 192 ; Fargo v. Ladd, 6 Wis. 106 ; White 
 v. Drocaw, 14 Ohio St. 339. 
 
458 HOW FAR A FRAUDULENT TRANSFER IS VOID. 
 
 ceeds. 1 If the grantee is a minor and reconveys the prop- 
 erty to the grantor during his minority, he can not avoid 
 the deed of reconveyance upon attaining his majority, for 
 the act was one which he ought to have done. 3 One 
 grantee is not responsible to another for property which he 
 has returned to the debtor. 3 If the grantee, upon recon- 
 veying the property, demands a certain price as a compen- 
 sation for his services, the reconveyance, as between the 
 parties, constitutes a good consideration therefor.* If he 
 takes a mortgage to secure this sum, he may enforce it by 
 foreclosure. 5 If he conveys the property to another upon 
 a written trust which is not fraudulent on its face, the 
 latter cannot set up the fraud as a defense against the en- 
 forcement of the trust. 
 
 Good against Third Parties. — The title of a fraudu- 
 lent grantee is not only good against the debtor, but it is 
 also good against all parties except creditors and their rep- 
 resentatives. It is voidable only at the suit of creditors, 
 and if no creditor interposes and complains, the transfer is 
 as binding and effectual to pass the title as if made with 
 the best intents and for the most innocent and commend- 
 able purposes. 7 The estate passes toties quoties by every 
 subsequent conveyance, 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, 8 a prior mortgagee, 9 third 
 
 1 Fargo v. Ladd, 6 Wis. 106. * Starr v. Wright, 20 Ohio St. 97. 
 
 3 Riddle v. Lewis, 7 Bush, 193. 4 Maples v. Snyder, 2 T. & C. 318. 
 
 6 Norton v. Pattee, 68 N. Y. 144. • Fast v. McPherson, 98 111. 496. 
 ' Hall v. Stryker, 9 Abb. Pr. 342 ; si 0. 29 Barb. 105 ; Bobb v. Wood- 
 ward, 50 Mo. 95. 
 
 8 Steadman v. Jones, 65 N. C. 388 ; Griffin v. Wardlaw, 1 Harp. Eq. 
 481 ; Moseley v. Moseley, 15 N. Y. 334 ; Cushwa v. Cushwa, 5 Md. 44. 
 
 9 Hodson v. Treat, 7 Wis. 263 ; Stone v. Locke, 46 Me. 445 ; Stone v. 
 Bartlett, 46 Me. 438 ; Fetrow v. Merriwether, 53 111. 275 ; Reid v. Mul- 
 
HOW FAR A FRAUDULENT TRANSFER IS VOID. 459 
 
 parties who are not creditors, 1 a creditor of the grantor's 
 creditor, 3 mere wrongdoers, 3 the grantee's own tenant 4 or 
 bailee, 5 purchasers from the grantee so long as they refuse 
 to surrender the property, 6 and stockholders 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 pay- 
 ment. 8 If a debtor has a note due to him cancelled, and 
 
 lins, 48 Mo. 344; Powers v. Eussell, 30 Mass. 69; Crooker v. Holmes, 
 65 Me. 195. 
 
 1 Kid v. Mitchell, 1 N. & M. 334 ; Wade v. Green, 3 Humph. 547 ; 
 Fowler v. Lee, 4 Munf. 373 ; Shadbolt v. Bassett, 1 Lans. 121 ; McGuire 
 v. Faber, 29 Perm. 436 ; Anderson v. Bradford, 5 J. J. Marsh. 69 ; Clute 
 v. Fitch, 25 Barb. 428; Van Etten v. Hurst, 6 Hill, 311; Johnson v. 
 Jeffries, 30 Mo. 423 ; Hatch v. Bates, 54 Me. 136 ; Damon v. Bryant, 19 
 Mass. 411 ; Glassner v. Wheaton, 2 E. D. Smith, 352 ; Puryear v. Beard, 
 14 Ala. 121 ; Bessey v. Wyndham, 6 A. & E. (N. S.) 166 ; Schettler v. 
 Brunette, 7 Wis. 197 ; Hali v. Snowhill, 14 N. J. 8 ; Paige v. O'Neal, 12 
 Cal. 483 ; Boyd v. Brown, 34 Mass. 453 ; McGuire v. Faber, 25 Penn. 436 ; 
 Hopkins v. Webb, 9 Humph. 519 ; Johnson v. Elliott, 26 N. H. 67 ; Bur- 
 gett v. Burgett, 1 Ohio, 482 ; Randall v. Phillips, 3 Mason, 378 ; Lenox 
 v. Notrebe, 1 Hemp. 251 ; Simon v. Gibson, 1 Yeates, 291 ; Woodman v. 
 Bodfish, 25 Me. 317 ; Hill v. Pine River Bank, 45 N. H. 300 ; Gardner v. 
 Stell, 34 Tex. 561 ; Finley v. McConnell, 60 111. 259 ; Walton v. Tusten, 
 49 Miss/ 599 ; Mellen v. Ames, 39 Iowa, 283 ; King v. Clay, 34 Ark. 291. 
 
 8 Jones v. Hill, 9 Bush, 692. 
 
 8 Worth v. Northam, 4 Ired. 102 ; Thompson v. Moore, 36 Me. 47 ; 
 The Lion, 1 Sprague, 40; Costenbader v. Shuman, 3 W. & S. 504; 
 Remington v. Bailey, 13 Wis. 332 ; Pierce v. Hasbrouck, 49 111. 26. 
 
 4 Russell v. Fabyan, 27 N. H. 520 ; s. o. 34 N. H. 218. 
 
 6 Hendricks v. Mount, 5 N. J. 738; Fairbanks v. Blackington, 26 
 Mass. 93. 
 
 6 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 v. Hathaway, 100 Mass. 247 ; Ogden v. Prentice, 33 Barb. 
 160 ; Morey v. Forsyth, Walk. Ch. 465 ; Hamilton v. Gilbert, 2 Heisk. 
 680 ; Rohrer v. Turrill, 4 Minn. 407 ; Frenzel v. Miller, 37 Ind. 1 ; Stoner 
 v. Comm., 16 Penn. 387 ; Gilmore v. Bangs, 55 Geo. 403 ; Sullivan v. 
 Bonesteel, 79 N. Y. 631 ; Wood v. Steele, 65 Ala. 436. 
 
460 HOW FAR A FRAUDULENT TRANSFER IS VOID. 
 
 takes a new note in the name of another, the latter can 
 enforce it. 1 
 
 Creditors must have Legal Process. — It is commonly 
 said that a fraudulent conveyance is void against creditors, 
 but this must be taken in a limited sense. The law pro- 
 vides 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. 2 Any other course would jeopardize the order 
 and harmony of society. A fraudulent conveyance, more- 
 over, does not confer any additional 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 en- 
 acted for the collection 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 wrongdoers 
 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, notwith- 
 standing 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 
 
 -• Harding v. Colon, 123 Mass. 299. s Williford v. Conner, 1 Dev. 379. 
 
HOW FAR A FRAUDULENT TRANSFER IS VOID. 461 
 
 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 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 prescribed course by which alone the pro- 
 perty 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 
 appropriated 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. 1 
 
 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. 3 In an action against him upon a chose in 
 action, he can not show that an assignment of it is fraudu- 
 lent. 3 If he is sued for the conversion of a note, he can 
 not impeach a transfer thereof, although he holds a judg- 
 
 1 Williford v. Conner, 1 Dev. 379 ; Hilzeim v. Drane, 18 Miss. 556 ; 
 Owen v. Dixon, 17 Conn. 492 ; McGee v. Campbell, 7 Watts, 545 ; Dorsey 
 v. Smithson, 6 H. & J. 61 ; Barton v. Vanheythuysen, 11 Hare, 126 ; s. c. 
 18 Jur. 344 ; Osborne v. Moss, 7 Johns. 161 ; Brown v. Gilmore, 16 How. 
 Pr. 527 ; Carter v. Bennett, 4 Fla. 283 ; Pennington v. Woodall, 17 Ala. 
 685 ; Graser v. Stellwagon, 25 ST. Y. 315 ; Eyrick v. Hetrick, 13 Penn. 
 488 ; Andrews v. Durant, 18 N". Y. 496 ; Whitfield v. Whitfield, 40 Miss. 
 352 ; Green v. Kornegay, 4 Jones (N. C.) 66. 
 
 2 Dorsey v. Smithson, 6 H. & J. 61 ; Andrews v. Durant, 18 N. Y. 
 496 ; Barton v. Vanheythuysen, 11 Hare, 126 ; s. c. 18 Jur. 344 ; Eslow 
 v. Mitchell, 26 Mich. 500. 3 Ogden v. Prentice, 33 Barb. 160. 
 
462 HOW FAR A FRAUDULENT TRANSFER IS VOID. 
 
 ment. 1 Before he can impeach the transfer he must have 
 an execution, attachment, or some other legal process 
 which authorizes the seizure of the property. 2 This pro- 
 cess may be a warrant of distress, 3 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 disposition 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. 5 Consequently the 
 title of the grantee is good against a void attachment, 6 or 
 an attachment which is not returned at the return term, 7 
 or a levy on a void judgment, 8 or a void levy, 9 or a levy 
 after the return day of the writ, 10 or out of the officer's 
 bailiwick, 11 or a purchaser under a .void judgment, 13 or a 
 
 1 Chickering v. Raymond, 15 111. 362. 
 
 3 Andrews v. Durant, 18 N. Y. 496 ; Rinchey v. Stryker, 26 How Pr. 
 75 ; Schlussell v. Willett, 34 Barb. 615 ; S. O. 12 Abb. Pr. 397 ; S. C. 22 
 How. Pr. 15 ; Tiffany v. Warren, 37 Barb. 571 ; S. c. 24 How. Pr. 293. 
 
 3 Allen v. Camp, 1 Mon. 231 ; Frost v. Mott, 34 N. Y. 253 ; Rinchey 
 v. Stryker, 26 How. Pr. 75. Contra, Frisbey v. Thayer, 25 Wend. 396. 
 
 "Frost v. Mott, 34 N. Y. 253; Ward v. McKenzie, 33 Tex. 297 
 Morris v. House, 32 Tex. 492. 
 
 6 Owen 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. 
 
 Halsey v. Christie, 21 Wend. 9 ; Zimmerman v. Lamb, 7 Minn. 421 
 Wanamaker v. Bowes, 36 Md. 42 ; Lyon v. Yates, 52 Barb. 237 ; Millar 
 v. Babcock, 29 Mich. 526. 
 
 ' Buss v. Butterfleld, 60 Mass. 242. « Bean v. Loftus, 48 Wis. 371. 
 Cleaveland v. Deming, 2 Vt. 534 ; Barley v. Tipton, 29 Mo. 206 ; 
 Russell v. Dyer, 40 N. H. 173 ; Davis v. Ranson, 26 111. 100 ; Candler v. 
 Fisher, 11 Md. 332 ; Duryee v. Botsford, 31 N. Y. Supr. 317. 
 10 Sheerer v. Lautzerheizer, 6 Watts, 543. 
 
 " McGee v. Campbell, 7 Watts, 545 ; Mangum v. Hamlet, 8 Ired. 44. 
 
 13 Warren v. Hall, 6 Dana, 450 ; Carter v. Bennett, 4 Fla. 283 ; Hemp- 
 hill v. Hemphill, 34 Miss. 68. 
 
HOW FAR A FRAUDULENT TRANSFER IS VOID. 463 
 
 landlord who distrains before the rent is due, 1 or a fraudu- 
 lent judgment, 3 or a judgment which has been satisfied. 3 
 It has, however, been held that if a debtor deposits money 
 in bank in the name of another, the bank may set off its 
 debt against the claim for the money. 4 
 
 Proof of Judgment as well as Execution. — When- 
 ever the validity of the seizure is put in controversy, 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. 5 If the property is taken upon an 
 attachment, there must be proof not only of the regularity 
 of the attachment, 6 but of the demand of the creditor at 
 whose instance the attachment was issued. 7 This is neces- 
 sary in order to establish a right to seize the property. 
 It is not necessary to prove the entire debt upon which 
 
 1 Evans v. Herring, 27 N. J. 243. 
 
 2 Wilhelmi v. Leonard, 13 Iowa, 330 ; Hackett v. Manlove, 14 Cal. 85. 
 
 3 Chiles v. Bernard, 3 Dana, 95 ; Jackson v. Cadwell, 1 Cow. 622 ; 
 Shinkle v. Letcher, 47 111. 217. 
 
 4 Citizens' Bank v. Bowen, 21 Kans. 354. 
 
 5 High v. Wilson, 2 Johns. 46 ; Wright v. Crockett, 7 Mo. 125 ; Dam- 
 eron v. Williams, 7 Mo. 138 ; Eaton v. White, 2 Wis. 292 ; Paige v. 
 O'Neal, 12 Cal. 483 ; Bickerstaff v. Doub, 19 Cal. 109 ; Martin v. Podger, 
 2 W. Bl. 701 ; s. o. 5 Burr. 2631 ; Hoffman v. Pitt, 5 Esp. 22 ; Reed v. 
 Blades, 5 Taunt. 212 ; White v. Morris, 11 C. B. 1015 ; Glave v. Went- 
 worth, 6 Q. B. 173 ; Ogden v. Hesketh, 2 Car. & K. 772; Ackworth v. 
 Kempe, 1 Doug. 40 ; Luke v. Billers, 1 Ld. Raym. 733 ; M'Gowen v. Hoy, 
 5 Litt. 239 ; Cook v. Miller, 11 111. 610. 
 
 8 Noble v. Holmes, 5 Hill, 194; Thornburgh v. Hand, 7 Cal. 554; 
 Keys' v. Grannis, 3 Nev. 548. 
 
 1 Sanford v. Wiggin, 14 N. H. 441 ; Damon v. Bryant, 19 Mass. 411 ; 
 Clute v. Fitch, 25 Barb. 428 ; Maley v. Barrett, 2 Sneed, 501 ; Currier v. 
 Fqrd, 26 111. 488 ; Jones v. Lake, 2 Wis. 210 ; Cook v. Hopper, 23 Mich. 
 511 ; Mamlock v. White, 20 Cal. 598 ; Cook v. Miller, 11 111. 610. 
 
 30 
 
464 HOW FAR A FRAUDULENT TRANSFER IS VOID. 
 
 the attachment issued, 1 or do more than show a prvma 
 facie right to issue the attachment without establishing 
 the amount due. 3 The parties will not be liable to the 
 grantee if the attachment is merely defeated by a plea of 
 set-off. 3 A collusive demand, created merely for the pur- 
 pose of attacking the transfer, can not prevail against it. 4 
 
 Deed by Debtor. — 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 has 
 no title that he can transmit. In the capacity of pur- 
 chaser the creditor obtains no rights, and in the capacity 
 of creditor he can only appropriate the property towards 
 the satisfaction of his demand by virtue of some legal pro- 
 cess. 5 Without a lien upon the property by virtue of some 
 process, a creditor has no right to intervene in a suit. 6 
 
 Ratification by Creditor. — A fraudulent transfer is 
 merely voidable, and consequently is capable of confirma- 
 tion, either by assent at the time or by a subsequent rati- 
 fication, for no one can predicate fraud of facts which have 
 his assent upon a full knowledge of them. As to him 
 there is no fraud, for by his free act he assents to the 
 transfer. Preterm illud sciendum est, eum qui consentien- 
 
 1 Walker v. Lovell, 28 N. H. 138. '' Fuller v. Sears, 5 Vt. 527. 
 
 3 Gates v. Gates, 15 Mass. 310. 4 Esty v. Long, 41 2S". H. 103. 
 
 6 Haines v. Campbell, 8 Wis. 187 ; Fox v. Willis, 1 Mich. 321 ; s. C. 
 Walk. Ch. 535 ; Grimsley v. Hooker, 3 Jones Eq. 4 ; Barton v. Yanhey- 
 thuysen, 11 I-Iare, 126; s. o. 18 Jur. 344; Tate v. Liggatt, 2 Leigh, 84; 
 Jones v. Eahilly, 16 Minn. 320 ; Judge v. Vogel, 38 Mich. 569. Contra, 
 Frost v. Goddard, 25 Me. 414 ; Woodward v. Solomon, 7 Geo. 246 ;' Lee 
 v. Brown, 7 Geo. 275 ; Pratt v. Cox, 22 Gratt. 330. 
 
 6 Horn v. Volcano Water Co., 13 Cal. 62 ; Graser v. Steelwagon, 25 H". 
 Y. 315 ; Williams v. Bizzell, 11 Ark. 718 ; Cox v. Fraley, 26 Ark. 20; 
 Ehodes v. Cousins, 6 Rand. 188. 
 
HOW FAR A FRAUDULENT TRANSFER IS VOID. 465 
 
 tibus creditoribus a fraudatore vel emit vel stipulatus est vel 
 quid aliud contraxit, non videri in fraudem creditorum 
 fecisse, nemo enim videtur fraudare eos qui sciwnt et con- 
 sentiunt 1 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 transac- 
 tion. 2 A party who loans money to the debtor to enable 
 him to buy the property can not impeach the conveyance if 
 he knows that the property is to be conveyed to another. 3 
 A creditor under and by whose advice the transfer is 
 made is, for the same reason, held to assent to and to be 
 bound by it, 4 especially when he is an active participant 
 in the fraud. 5 Volenti non fit injuria. If he is a party 
 to the deed he can not impeach it. 6 A trustee who is also 
 a creditor is estopped from assailing the deed under which 
 he acts. 7 If a creditor is estopped, the estoppel will ex- 
 tend to a party who purchases under his judgment. 8 
 
 Subsequent Confirmation. — Although a creditor is 
 not a party to a' fraudulent transfer, yet he may subse- 
 quently elect to confirm it, for any one may dispense with 
 a provision of the law which was made for his own pro- 
 tection. But before there can be any binding confirma- 
 
 1 Dig. Lib. 42, Tit. 9, § 9. 
 
 * Phillips v. Wooster, 36 N. Y. 412 ; s. 0. 3 Abb. Pr. (N. S.) 475 ; 
 French v. Mehan, 56 Pehn. 286. 
 
 s Thompson v. Thompson, 82 Penn. 378. 
 
 4 Olliver v. King, 8 De G. M. & G. 110 ; S. 0. 55 Eng. L. & Eq. 312 ; 
 s. c. 25 L. J. Ch. 427 ; s. C. 2 Jur. (N. S.) 312 ; s. C. 1 Jur. (N. S.) 1067 ; 
 Pell v. Tredwell, 5 "Wend. 661 ; Baker v. Lyman, 53 Geo. 339 ; Scholey 
 v. Worcester', 6 T. & C. 574; Sharpe^. Davis, 76 Ind. 17. Contra, 
 Waterhouse v. Benton, 5 Day, 136. 
 
 6 Smith v. Espey, 9 N. J. Eq. 160. 
 
 • Scbenck v. Hart, 32 N. J. Eq. 774, 148. 
 
 ' Strong v. Willis, 3 Fla. 124; Marshall v. Morris, 16 Geo. 368. 
 
 s Smith v. Espey, 9 N. J. Eq. 160 ; Sharpe v. Davis, 76 Ind. 17. 
 
466 HOW FAR A FRAUDULENT TRANSFER IS VOID. 
 
 tion, he must have notice or knowledge of the facts which 
 constitute the fraud. 1 If he has, however, been guilty of 
 negligence in availing himself of information within his 
 reach, constructive notice may be imputed to him. 2 Mere 
 notice without any action on the part of the creditor, 3 or 
 mere acquiescence by taking no present measures to inter- 
 fere with the transfer, 4 does not amount to a confirmation, 
 for he can be precluded from assailing the transfer only 
 on the ground of estoppel or agreement ; there must be a 
 benefit conferred upon him, or a disadvantage suffered by 
 the grantee such as can bind the conscience of the former 
 or clothe his act with the character of a contract. 5 If, 
 without consideration, he says that the transfer may stand, 
 and the grantee does not act upon this statement in a man- 
 ner different from what he otherwise would have done, or 
 if the circumstances are such that he can retract what he 
 says without prejudice to the grantee, he may still assail 
 it. 6 But if with notice of the fraud either actual or con- 
 structive, he makes any agreement upon consideration con- 
 firming the transfer, or any statement or agreement to 
 that effect, upon the faith of which the grantee acts as he 
 would not otherwise do, or under such circumstances that 
 his subsequent assertion of his rights as a creditor, if per- 
 mitted, would operate as a fraud, he will, be held to have 
 confirmed the transfer. 7 The confirmation need not be 
 
 1 Clarke v. Bowling, Hill & D. Sup. 105 ; Baldwin v. Tuttle, 23 Iowa, 
 66 ; Foulk y. McFarlane, 1 W. & S. 297 ; Van Nest v. Yoe, 1 Sandf. Ch. 
 4 ; Crutchfield v. Hudson, 23 Ala. 393. 
 
 2 Scott v. Edes, 3 Minn. 377 ; Lane v. Lutz, 1 Keyes, 203 ; s. o. 3 Abb. 
 Ap. 19. 
 
 3 Derry Bank v. Davis, 44 N. H. 548 ; Cole v. Tyler, 65 N. Y. 73. 
 <Knauth v. Bassett, 34 Barb. 31; Jenness v. Berry, 17 N. H. 549 ; 
 
 Annin v. Annin, 24 N. J. Eq. 184. 
 
 6 Hayes v. Heidelberg, 9 Penn. 203. 6 Jenness v. Berry, 17 N. H. 549. 
 
 'Jenness v. Berry, 17 N. H. 549 ; Lane v. Lutz, 1 Keyes, 203 ; s. c. 
 3 Abb. Ap. 19 ; Johns v. Bolton, 12 Penn. 339 ; Dingley v. Kobinson, 5 
 
HOW FAR A FRAUDULENT TRANSFER IS VOID. 467 
 
 direct and express, but may be implied from the manner 
 in which the parties deal with the property. 1 Each credi- 
 tor has the right to elect for himself whether he will 
 confirm the transfer or not, and can not be prejudiced by 
 the acts of others. 2 
 
 Express Agreement. — If a creditor enters into a con- 
 tract with the debtor and grantee whereby he affirms the 
 validity of the conveyance, he can not afterwards impeach 
 it. 3 He will also be estopped if he joins in a declaration 
 of a trust made by the grantee to secure him, for he 
 thereby recognizes the validity of the transfer. But if 
 the acceptance of the grantee as surety for the debt has no 
 reference to a connection with the transfer, it will not 
 ratify it or estop him from impeaching it. 5 If, with full 
 knowledge of the provisions of an assignment which is 
 fraudulent on its face, he enters into an arrangement with 
 other creditors concerning the disposition of the property 
 or becomes a party to it, this is a confirmation of the 
 assignment and estops him from assailing it. 8 But if goods 
 are obtained from him under false pretenses and then 
 fraudulently transferred to another, an agreement with 
 
 Me. 127 ; Seymour v. Lewis, 13 N. J. Eq. 439 ; Tate v. Liggatt, 2 Leigh, 
 84; Okie v. Kelly, 12 Penn. 323 ; Irwin v. Longworth, 20 Ohio, 581; 
 Eenick v. Bank, 8 Ohio, 529 ; Myers v. Leinster, 7 Ired. Eq. 146 ; Bobb 
 v. Woodward, 50 Mo. 95. ' Butler v. O'Brien, 5 Ala. 316. 
 
 3 M'Allister v. Marshall, 6 Binn. 338; Litchfield v. Pelton, 6 Barb. 
 187 ; Geisse v. Beall, 3 Wis. 367. 
 
 8 Tate v. Liggatt, 2 Leigh, 84 ; Lane v. Lutz, 1 Keyes, 203 ; s. c. 3 
 Abb. Ap. 19. 
 
 * Irwin v. Longworth, 20 Ohio, 581. 6 Knapp v.White, 40 Wis. 143. 
 
 « Rapalee v. Stewart, 27 N. Y. 310 ; Bull v. Loveland, 27 Mass. 9 ; 
 Eiske v. Carr, 20 Me. 301 ; Jones v. Dougherty, 10 Geo. 273 ; Burrows 
 v. Alter, 7 Mo. 424 ; Geisse v. Beall, 2 Wis. 367 ; Reiff v. Eshleman, 52 
 Md. 582; vide Hurd v. Silsbee, 10 N. H. 108. 
 
468 HOW FAR A FRAUDULENT TRANSFER IS VOID. 
 
 the fraudulent grantee to waive the false pretenses does 
 not prevent an action to vacate the fraudulent sale. 1 
 
 Acceptance of Proceeds. — A creditor who receives 
 the proceeds of a transfer with full knowledge of all the 
 facts can not impeach it as fraudulent. His title to the 
 proceeds depends upon the validity of the transfer, and he 
 is therefore estopped from claiming the property, for the 
 law does not permit any one to make repugnant claims. 2 
 Therefore if, for part payment of his debt, he receives a 
 note given by the grantee as a part of the consideration of 
 the transfer, having at the time a knowledge of the con- 
 sideration, he will be held to confirm the transfer. 3 He 
 will be equally estopped, although he obtains a part of the 
 proceeds under proceedings supplemental to an execution. 4 
 If he receives a dividend under an assignment which is 
 void on its face, he does so upon the implied condition 
 that he will permit the whole assignment to take effect, 
 and he is then precluded from impeaching it. 5 If he 
 agrees not to assail the assignment if a certain sum is sent 
 to him weekly till his debt is paid, and the debtor and 
 trustee consent, and a part is remitted, he is held to take 
 a benefit under it. within the meaning of the rule. 6 An 
 assignee in bankruptcy or insolvency is subrogated to the 
 rights of creditors and confirms a transfer by receiving the 
 arrears of an annuity given as a part of the consideration, 7 
 
 1 Dingley v. Eobinson, 5 Me. 127. 
 
 a Hathaway v. Brown, 22 Minn. 214. 
 
 8 Butler v. O'Brien, 5 Ala. 316. "Lemay v. Bibeau, 2 Minn. 291. 
 
 6 Adlum v. Yard, 1 Bawle, 163 ; Lanahan v. Latrobe, 7 Md. 268 ; 
 Scott v. Edes, 3 Minn. 377 ; Richards v. White, 7 Minn. 345 ; Whitney 
 v. Freeland, 26 Miss. 481; Gutzweiler v. Lackman, 23 Mo. 168; Moale 
 v. Buchanan, 11 G. & J. 314; vide Vose v. Holcomb, 31 Me. 407; 
 Crutchfield v. Hudson, 23 Ala. 393. 
 
 6 Richards v. White, 7 Minn. 345. 7 Furness v. Ewing, 2 Penn. 479. 
 
HOW FAR A FRAUDULENT TRANSFER IS VOID. 469 
 
 but a trustee claiming under an assignment for the benefit 
 of creditors can not impeach, a fraudulent transfer, and 
 therefore cannot confirm it by taking the proceeds. 1 
 Where a creditor receives a part of the proceeds of a sale 
 made by the grantee towards the payment of his debt, he 
 confirms the transfer the same as if he received the pro- 
 ceeds of the sale to the grantee. 2 If an assignee in bank- 
 ruptcy or insolvency receives the proceeds of a sale made 
 by the grantee, this is also a confirmation of the transfer. 3 
 If a creditor accepts the balance arising from a fraudulent 
 sale under a prior execution with full knowledge of all 
 the facts, he thereby ratifies the sale and waives all 
 objection to it. 4 A creditor can not consistently with 
 reason be deemed to confirm a transfer by receiving the 
 proceeds unless he knows that they are the proceeds and 
 that the transfer is fraudulent, but if he' retains the pro- 
 ceeds and uses them as his own after he acquires such 
 knowledge, the same consequences result as if he acted on 
 previous information 5 
 
 No Confirmation without Consideration. — A confir- 
 mation must be founded upon a valuable consideration, 
 and if there is no such consideration, a creditor is not pre- 
 cluded from impeaching a transfer. 6 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. 7 Merely 
 
 ' Furness v. Ewing, 2 Penn. 479. 
 
 s Renick v. Bank, 8 Ohio, 529 ; Seymour v. Lewis, 13 N. J. Eq. 439 ; 
 Johns v. Bolton, 12 Penn. 339. 
 
 8 Okie v. Kelly, 12 Penn. 323 ; Johns v. Bolton, 12 Penn. 339. 
 
 4 Kilby v. Haggin, 3 J. J. Marsh. 208. 
 
 B Butler v. O'Brien, 5 Ala. 316. « Hayes v. Heidelberg, 9 Penn. 203. 
 
 1 Smith v. Howard, 20 How. Pr. 121 ; O'Neil v. Salmon, 25 How. Pr. 
 246. 
 
470 HOW FAE A FRAUDULENT TRANSFER IS VOID. 
 
 laying an attachment in the hands of the grantee does not 
 confirm the transfer. 1 The mere fact that a receiver 
 appointed in proceedings supplemental to an execution 
 took possession of a note which was the consideration for 
 the transfer, does not operate as a ratification of the trans- 
 fer, nor estop the judgment creditor from levying on the 
 property. 2 A party who bids at a sale under an execution 
 issued against the grantee is not estopped from impeach- 
 ing the transfer. 3 If a creditor accepts a part of the 
 property which is subsequently taken from him, he may 
 assail the transfer. 4 In order to operate as a confirmation, 
 the act of the creditors must be intended to be a direct 
 recognition and acknowledgment of the validity of the 
 transfer, and not the result of a mere collateral arrange- 
 ment. 5 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 attempting to have the 
 annuity appropriated to the satisfaction of his demand. 6 
 If the creditor and grantee become tenants in common of 
 the same ground, joining in a deed of partition does not 
 estop the creditor from impeaching the conveyance. 7 
 
 Assignments. — An assent to an assignment is coupled 
 with the implied condition that other creditors shall also 
 so agree. The hands of one creditor can not be tied by 
 acquiescence while all the rest are left at liberty to prose- 
 cute their legal rights. Such a trust must be good as to 
 
 ' M'Kee v. Gilchrist, 3 Watts, 230 ;. Craver v. Miller, 65 Penn. 456 ; 
 vide Bishop v. Catlin, 28 Vt. 71 ; Woodward v. Wyman, 53 Vt. 645. 
 * Briggs v. Merrill, 58 Barb. 389. ' Wade v. Saunders, 70 N". C. 270. 
 4 Lee v. Hunter, 1 Paige, 519. 6 Hayes v. Heidelberger, 9 Penn. 203. 
 6 French v. French, 6 De G. M. & G. 95 ; s. c. 25 L. J. Ch. 612. 
 1 Stout v. Stout, 77 Ind. 537. 
 
HOW FAR A FRAUDULENT TRANSFER IS VOID. 471 
 
 all or void as to all. From its very nature it is entire, and 
 incapable of separation and distribution, binding upon 
 some while others are left free. If any one creditor pro- 
 ceeds against and sells the subject of the trust at law, 
 both the legal and equitable title pass, and the trust is 
 nullified as to all. 1 A creditor who has assented to the 
 assignment may become a purchaser at the sale, and as his 
 title will be derived from a source superior to the transfer, 
 he will take the property discharged from it. 2 
 
 Subsequent Creditors. — A creditor who has trusted 
 his debtor after he has notice that the debtor has put his 
 property out of his hands by a conveyance valid as be- 
 tween him and his grantee though voidable as to existing 
 creditors, can never claim that the conveyance is fraudu- 
 lent and void as to him on account of such indebtedness. 3 
 It has, however, been held that a person who afterwards 
 signs an appeal bond upon an appeal from a judgment for 
 a debt contracted before the conveyance, is not estopped 
 from impeaching it although the fraud is disclosed to him 
 at the time when he executes the bond. 4 If an assign- 
 ment 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 
 
 1 Hayes v. Heidelberg, 9 Penn. 203 ; Insurance Co. v. Wallis, 23 Md. 
 173. 
 
 8 Hayes v. Heidelberg, 9 Penn. 203 ; vide McWhorter v. Huling, 3 
 Dana, 348. 
 
 3 Baker v. Gilman, 52 Barb. 26 ; Chrisman v. Graham, 51 Tex. 454 ; 
 Monroe v. Smith, 79 Penn. 459 ; Kane v. Roberts, 40 Md. 590 ; Kirksey 
 v. Snedecor, 60 Ala. 192 ; Herring v. Richards, 3 Fed. Rep. 439 ; S. C. 1 
 McCreary, 570 ; Sheppard v. Thomas, 24 Kans. 780 ; Sledge v. Obenchain, 
 58 Miss. 670. 
 
 4 Martin v. Walker, 19 N. Y. Supr. 46. 
 
472 HOW FAR A FRAUDULENT TRANSFER IS VOID. 
 
 the assignment is fraudulent, and have a prior equity to 
 be paid out of the property assigned. 1 
 
 No Confirmation without Knowledge of the Fraud. 
 — A confirmation to be effectual must be made with a 
 knowledge, either actual or constructive, of the fraud as 
 well as founded upon a valuable consideration, for no one 
 can be deemed to assent to that of which he has no 
 knowledge. The term assent of itself implies that the 
 party has knowledge of that to which he assents. When 
 the surplus of the money arising from a fraudulent sale 
 under a prior execution is appropriated by law to a subse- 
 quent execution creditor who is in no way connected with 
 the fraud, and receives it innocently and in ignorance of 
 the fraud, he is not thereby prevented from attacking the 
 sale. 3 A creditor who accepts a trust deed for his benefit 
 from the fraudulent grantee of a part of the property is 
 not estopped from assailing the transfer, unless he took his 
 trust deed and claims thereunder with full knowledge of 
 the fraud. 3 If he receives a dividend under an assignment 
 upon a false statement, or without any knowledge of the 
 fraud, he will not be thereby precluded from impeaching 
 the assignment. 4 
 
 Creditor must Return Benefit. — A creditor, how- 
 ever, who has received a benefit under a fraudulent trans- 
 fer 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 can not do both. By receiving 
 
 1 Ames v. Blunt, 5 Paige, 13 ; Therasson v. Hickock, 37 Vt. 454 ; 
 Ogden v. Prentice, 33 Barb. 160. 
 
 2 Poulk v. M'Parlane, 1 W. & S. 297. 
 8 Baldwin v. Tuttle, 23 Iowa, 66. 
 
 4 Van Nest v. Yoe, 1 Sandf. Ch. 4 ; Crutchfleld v. Hudson, 23 Ala. 393. 
 
HOW FAR A FRAUDULENT TRANSFER IS VOID. 473 
 
 a benefit under the transfer claimed to be fraudulent, 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. 1 
 
 Estoppel from Conduct. — If a creditor signs a com- 
 position agreement and a receipt for the money, he can 
 not assail a purchase by another who buys upon the faith 
 of the agreement and to enable the debtor to settle with 
 his creditors, although the money was not paid. 2 
 
 Claims must BE' Consistent. — A creditor must treat a 
 transfer as altogether valid or altogether void. He can 
 not hold it void in part and good in part, nor can he treat 
 it as valid at one time and as void at another subsequent 
 time. 3 If he sells the property under an execution and 
 receives the proceeds, he can not afterwards resort to a 
 note given as a consideration for the transfer. 4 If he takes 
 the property under an execution, he can not also garnish 
 the grantee. 5 But a mere levy on the property will not 
 prevent the creditor from afterwards treating the transfer 
 as valid. 6 
 
 Effect of Confirmation. — If the creditors assent to a 
 fraudulent assignment, it will be binding on the trustee, 
 and he can not set up the fraud in an action against him 
 to enforce its provisions. 7 
 
 1 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. s Kuhn v. Weil, 73 Mo. 213. 
 
 » Geisse v. Beall, 3 Wis. 367. 4 Bradford v. Beyer, 17 Ohio St. 588. 
 
 6 Clapp v. Bogers, 38 N. H. 435. 6 U. S. v. Poole, 5 Fed. Rep. 412. 
 
 'Geisse v. Beall, 3 Wis. 367; Jones v. Dougherty, 10 Geo. 273. 
 
474 HOW FAR A FRAUDULENT TRANSFER IS VOID. 
 
 Title in Debtor. — The theory of the law is that a 
 fraudulent transfer is void as against creditors. 1 For the 
 purpose of enabling them to enforce their debts, the title 
 is deemed to remain in the debtor as though the transfer 
 had never been made, and they may levy on the property 
 under an attachment 3 or execution, 3 and sell it as his 
 property. 
 
 Lien of Judgment. — If the creditors obtain judgments 
 against the debtor after the transfer, they acquire liens 
 upon his property wherever the same are given by law, 
 according to the dates of their respective judgments, in the 
 same manner precisely as if no transfer had been made, 
 for the transfer is a nullity as against them, and the legal 
 as well as the equitable title remains in the debtor for the 
 purpose of satisfying his debts. 4 If the debtor becomes 
 bankrupt after the rendition of a judgment against him, 
 the lien is valid as against his assignee. 5 The lien of a 
 
 1 Gooch's Case, 5 Co. 60. 
 
 2 Piatt v. Wheeler, 72 Mass. 520 ; Angier v. Ash, 26 N". H. 99. 
 
 3 Campbell v. Jones, 25 Minn. 155 ; Wynian v. Eichardson, 62 Me. 
 293 ; Scully v. Kearns, 14 La. An. 436 ; Gleises v. McHatton, 14 La. An. 
 560; Hager v. Shindler, 29 Cal. 47; Austin v. Bell, 20 Johns. 442; 
 Chautauqua County Bank v. Risley, 19 N. Y. 369 ; Lowry v. Orr, 6 111. 
 70 ; Marston v. Marston, 54 Me. 476 ; Lane v. Sparks, 75 Ind. 278. 
 
 4 M'Kee v. Gilchrist, 3 Watts, 230 ; Sanders v. Wagonseller, 19 Penn. 
 248 ; Beekman's Appeal, 38 Penn. 385 ; Hofl'man's Appeal, 44 Penn. 95 ; 
 Miner v. Warner, 2 Grant, 448 ; s. c. 2 Phila. 124 ; Jacoby's Appeal, 67 
 Penn. 434 ; Manhattan Co. v. Evertson, 6 Paige, 457 ; Morss v. Purvis, 
 5 T. & C. 140 ; Eastman v. Schettler, 13 Wis. 324 ; Chautauqua County 
 Bank v. Risley, 19 N. Y. 369 ; Hubbs v. Bancroft, 4 Ind. 388. Contra, 
 Miller v. Sherry, 2 Wall. 237 ; Lyon v. Bobbins, 46 111. 276 ; Kappeleye 
 v. International Bank, 93 111. 396 ; TJ. S. v. Griswold, 8 Fed. Rep. 556. 
 
 6 Codwise v. Gelston, 10 Johns. 507 ; Wooten v. Clark, 23 Miss. 75 ; 
 Davis v. Lumpkin, 57 Miss. 506; in re Beadle, 5 Saw. 351 ; Johnson v. 
 Rogers, 15 N. B. R. 1. Contra, in re Estes & Carter, 3 Fed. Rep. 134 ; 
 S. C. 5 Fed. Rep. 60. 
 
HOW FAR A FRAUDULENT TRANSFER IS VOID. 475 
 
 judgment, however, is not a strict lien as it would be if 
 there were no transfer, for the judgment does not of itself 
 divest the title of the grantee. It is a mere quasi lien 
 which is liable to be displaced by subsequent equities. 1 
 If the property is purchased in the name of another, a 
 judgment against the debtor is not a lien thereon, for the 
 title has never been in the debtor. 2 
 
 Grantee's Creditors. — 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. 3 The grantee's assignee in bankruptcy has merely 
 a defeasible title, subject to be defeated by the creditors of 
 the grantor. 4 But a sale under an execution against the 
 grantee will pass a good title as against the debtor. 5 If 
 the creditors of the grantor seize 8 or sell the propertv 
 under an 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. 8 An 
 assignee claiming under a fraudulent assignment made by 
 
 1 Henderson v. Hunton, 26 Gratt. 926. 
 '' Smith v. Inglis, 2 Oregon, 43. 
 
 3 Haymaker's Appeal, 53 Penn. 306; Hoke v. Henderson, 3 Dev. 12. 
 
 4 Pratt v. Wheeler, 72 Mass. 520. 
 
 5 Eobinson v. Monjoy, 7 N. J. 173 ; Wright v. Howell, 35 Iowa, 288. 
 "Mullanphy Savings Bank v. Lyle, 7 Lea. 431. 
 
 ' Booth v. Bunce, 33 N. Y. 139 ; S. 0. 24 N. Y. 592 ; s. C. 35 Barb. 
 496. 
 
 8 Gibbs v. Chase, 10 Mass. 125 ; Parker v. Freeman, 2 Tenn. Oh. 612 ; 
 Shallcross v. Deats, 43 N. J. 177. 
 
476 HOW FAR A FRAUDULENT TRANSFER IS VOID. 
 
 a firm does not represent the partnership creditors, and 
 can not interpose in their behalf to prevent the property 
 from being taken upon a judgment against one of the 
 partners for a separate debt. 1 
 
 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 as a pur- 
 chaser and not as a judgment creditor, but as he represents 
 a creditor he is entitled to the full benefit of the statute. 3 
 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 caus- 
 ing a sacrifice of his property. 8 If the purchaser conveys 
 the property to another, the latter will obtain a valid 
 
 1 Jaques v. Greenwood, 12 Abb. Pr. -232. 
 
 2 Pepper v. Carter, 11 Mo. 540 ; Barr v. Hatch, 3 Ohio, 527 ; Fish- 
 burne v. Kunhardt, 2 Speers, 556 ; Jones v. Crawford, 1 McMullan, 376 ; 
 Kussell v. Dyer, 33 N. H. 186 ; Sands v. Hildreth, 14 Johns. 493 ; s. c. 2 
 Johns. Ch. 35 ; Eastman v. Schettler, 13 Wis. 324 ; Duvall v. Waters, 1 
 Bland, 569 ; S. c. 11 G. & J. 37 ; Cole v. White, 26 Wend. 511 ; s. c. 24 
 Wend. 116 ; Wadsworth v. Havens, 3 Wend. 411 ; Carpenter v. Simmons, 
 1 Robt. 360 ; Thomson v. Dougherty, 12 S. & R. 448 ; Carter v. Castle- 
 berry, 5 Ala. 277; Douglass v. Dunlap, 10 Ohio, 162; Middleton v. Sin- 
 clair, 5 Cranch C. C. 409 ; Laurence v. Lippincott, 6 N. J. 473 ; Miller 
 v. Tolleson, Harp. Ch. 145 ; Croft v. Arthur, 3 Dessau, 223 ; Lynn v. Le 
 Gierse, 48 Tex. 138 ; Wagner v. Johns, 7 Daly, 375 ; Hager v. Shindler, 
 29 Cal. 47 ; Campbell v. Jones, 25 Minn. 155. 
 
 8 Thomson v. Dougherty, 12 S. & R. 448 ; Hildreth v. Sands, 2 Johns. 
 Ch. 35 ; S. C. 14 Johns. 493 ; Laurence v. Lippincott, 6 N. J. 473 ; Mullen 
 v. Wilson, 44 Penn. 413 ; Rankin v. Harper, 23 Mo. 579 ; Lynn v. Le 
 Gierse, 48 Tex. 138 ; McDonald v. Johnson, 48 Iowa, 72. 
 
HOW FAR A FRAUDULENT TRANSFER IS VOID. 477 
 
 legal title as against the fraudulent grantee, for the title 
 acquired at the sale under the execution can not^be ex- 
 tinguished without a release or a conveyance. 1 
 
 Proof of Title. — In order to establish his title, a pur- 
 chaser must produce the judgment as well as the writ 
 under which the property has been sold, 3 and when land 
 is sold he must also show a deed from the officer who 
 made the sale. 3 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. 4 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 property. 5 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. 6 
 
 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 
 
 1 Mulford v. Tunis, 37 N. J. 256. 
 
 s M'Creery v. Pursley, 1 A. K. Marsh. 114 ; Wright v. Crockett, 7 Mo. 
 125 ; Daraeron v. Williams, 7 Mo. 138 ; Delesdernier v. Mowry, 20 Me. 
 150 ; Hyman v. Bailey, 13 La. An. 450. 
 
 3 Hiney v. Thomas, 36 Mo. 377. 
 
 4 Byrod's Appeal, 31 Penn. 241; Fisher's Appeal, 33 Penn. 294; 
 Bobb v. Woodward, 50 Mo. 95. 
 
 : Bullard v. Hinkley, 6 Me. 289 ; McWhorter v. Huling, 3 Dana, 348. 
 
 6 Zerbe v. Miller, 16 Penn. 488 ; vide Birge v. Nock, 34 Conn. 156. 
 
478 HOW FAR A FRAUDULENT TRANSFER IS VOID. 
 
 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 advantage 
 whatever from the fact that the sale was by a sheriff on 
 execution for the satisfaction of a debt. 1 If 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 purchaser can not impeach 
 the mortgage. 3 If, however, he elects to treat it as void 
 he is not bound to incur the delay and expense necessarily 
 incident to the prosecution to final judgment of legal pro- 
 ceedings 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. 3 
 
 When Tenant attorns to Assignee. — If the assignee 
 in bankruptcy of a debtor who has made a fraudulent 
 conveyance of land that is subject to a lease collects the 
 rent from the tenant, the tenant may set up such pay- 
 ment as a defense to an action by the fraudulent grantee 
 for the rent. 4 
 
 No Levy on Profits or Proceeds. — The grantee has 
 a valid title until the creditors, by asserting their rights 
 
 1 Flanders v. Jones, 30 N. H. 154 ; Russell v. Dudley, 44 Mass. 147 ; 
 McWhorter v. Huling, 3 Dana, 348. 
 
 8 Tuite v. Stevens, 98 Mass. 305 ; Brewer v. Hyndman, 18 N. H. 9. 
 
 8 Freeland v. Freeland, 102 Mass. 475 ; Dwinel v. Perley, 32 Me. 197; 
 Gibbs v. Thayer, 60 Mass. 30 ; vide McMaster v. Campbell, 41 Mich. 513. 
 
 1 Sexton v. Canny, 8 L. R. Ir. 216. 
 
HOW FAR A FRAUDULENT TRANSFER IS VOID. 479 
 
 in due course of law, defeat it, and when defeated it is not 
 rendered void ah initio, but only from the time of the levy 
 of the execution under which the property is sold. Con- 
 sequently 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 subsequently produced by him, 1 or upon property 
 which he has converted from realty into personalty, as for 
 instance plaster dug from the ground or stone taken from 
 a quarry, 2 unless they can show that his title to such per- 
 sonal property is merely colorable. 3 If the property con- 
 sists of a furnace and iron works, no levy can be made on 
 iron subsequently made by him at the furnace. 4 If the 
 property is sold, the proceeds or other property received 
 in exchange is not liable to an attachment or execution at 
 law, for the statute only operates upon property 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. 5 If the grantee sells the 
 property and deposits the money in bank, the latter can 
 not set off its judgment against the grantor to the claim of 
 the grantee. 6 If a crop, however, is growing upon the 
 
 1 Jones v. Bryant, 13 N. H. 53 ; Heywood v. Brooks^, 47 Kg H. 231^ 
 Contra, Stehman v. Huber, 21 Penn. 260. / ^ ^ff C-****. (rt 3 7 
 
 8 Garbuttv. Smith, 40 Barb. 22. 
 
 8 Dodd v. Adams, 125 Mass. 398 ; Furze v. Strohecker, 44 Mich. 337. 
 
 4 Peters v. Leight, 76 Penn. 289. 
 
 6 Lawrence v. Bank, 35 ST. Y. 320 ; s. c. 3 Robt. 142 ; Tubb. v. Wil- 
 liams, 7 Humph. 367 ; Campbell v. Erie E. R. Co., 46 Barb. 540 ; Childs 
 v. Derrick, 1 Yerg. 79 ; Richards v. Ewing, 11 Humph. 327 ; Kinghorn v. 
 Wright, 45 N. Y. Sup. 615 ; Graham jT. Rooney, 42 Iowa, 567. 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 v Briedel- 
 man, 2 Grant, 319 ; Whitehall v. Crawford, 37Ind. 147. 
 
 6 Lawrence v. Bank, 35 N. Y. 320 ; s. c. 3 Robt. 142. 
 31 
 
480 HOW FAR A FRAUDULENT TRANSFER IS VOID. 
 
 land at the time of the conveyance, a creditor may levy 
 thereon without levying on the land. 1 
 
 Subsequent 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 
 insist that the deed is void so far forth as it is designed 
 to defraud creditors. 2 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 subse- 
 quently becomes absolute, the whole estate is liable to 
 his creditors. 3 
 
 Eights of Grantee. — 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. 5 If the grantee gives a bond to dissolve an attach- 
 ment levied upon the property and thus regains possession 
 of it, his title is still liable to be impeached by other 
 creditors. 6 It has also been held that the grantee does not 
 get a good title even by a purchase at a sale under an 
 execution. 7 The surplus that remains after satisfying an 
 execution belongs to the grantee. 8 
 
 ! Pierce v. Hill, 35 Mich. 194. s Staples v. Bradley, 23 Conn. 167. 
 
 3 Flynn v. Williams, 7 Ired. 32; s. C. 1 Ired. 509. 
 
 4 Russell v. Fabyan, 34 N. H. 218 ; S. c. 27 N. H. 520 ; Greenwald v. 
 Roberts, 4 Heisk. 494. 
 
 6 Bicker v. Ham, 14 Mass. 137; Williams v. Thompson, 30 Mass. 298. 
 
 6 Jacobi v. Schloss, 7 Cold. 385. 
 
 ' Spindler v. Atkinson, 3 Md. 409 ; S. C. 1 Md. Ch. 507. 
 
 8 Taylor v. Williams, 1 Ired. 249 ; Williams v. Avent, 5 Ired. Eq. 47 ; 
 Shorman v. "Farmers' Bank, 5 W. & S. 373; Glassner v. Wheaton, 2 E. 
 
HOW FAR A FRAUDULENT TRANSFER IS VOID. 481 
 
 Dower. — rThe release of an inchoate right of dower 
 which a married woman makes by joining in a convey- 
 ance with her husband operates against her only by 
 estoppel. An estoppel must be reciprocal and binds only 
 in favor of those who are privy thereto. A release of 
 dower can be availed of then only by one who claims 
 under the very title which was created by the convey- 
 ance with which the release is joined. When creditors 
 set aside the deed from him as fraudulent, they do not 
 connect themselves with the title which that deed has 
 created and with which the release of dower is connected. 
 They set up the title of the husband as it existed before 
 the fraudulent conveyance and stand in hostility to the 
 title which it has given. Not being parties to the release 
 or in privity with it, they can not set it up in bar of the 
 dower. When the deed is vacated her right to dower is 
 revived. 1 In the case of a fraudulent mortgage she has a 
 dower interest which may be assigned to her. 2 If the 
 conveyance was made to her, her right to dower revives 
 when the conveyance is set aside. 3 When property is 
 fraudulently purchased in the name of another there is no 
 dower interest in it. 4 If the conveyance was made before 
 
 D. Smith, 352; Waterbury v. Westervelt, 9 N. Y. 598; Bostwick v. 
 Menck, 40 N. T. 383. * 
 
 1 Mallonee v. Horan, 49 N. Y. Ill ; s. C. 12 Abb. Pr. (N. S.) 289 ; 
 Belford v. Crane, 16 K". J. Eq. 265 ; Dugan v. Massey, 6 Bush, 81 ; 
 Summers v. Babb, 13 111. 483 ; Robinson v. Bates, 44 Mass. 40 ; Lowry 
 v. Fisher, 2 Bush, 70 ; Wyman v. Fox, 59 Me. 100 ; Woodworth v. Paige, 
 5 Ohio St. 70 ; Richardson v. Wyman, 62 Me. 280 ; Lockett's Adm. v. 
 James, 8 Bush, 28 ; Ridgway v. Masting, 2£ Ohio St. 294 ; Duvall v. 
 Rollins, 71 N. C. 218 ; Cox v. Wilder, 7 N. B. R. 241 ; s. c. 5 N. B. R. 
 443 ; s. c. 2 Dillon, 132. Contra, Meyer v. Mohr, 19 Abb. Pr. 299 ; Man- 
 hattan Co. v. Evertson, 6 Paige, 457 ; Stewart v. Johnston, 3 Harrison, 
 87 ; Coppage v. Barnett, 34 Miss. 621. 
 
 a Harrison v. Campbell, 6 Dana, 263. 3 Humes v. Scruggs, 64 Ala. 40. 
 
 4 Miller v. Wilson, 15 Ohio, 108. 
 
482 HOW FAR A FRAUDULENT TRANSFER IS VOID. 
 
 marriage, she is not entitled to dower in the land when it 
 is set aside. 1 If the conveyance is set aside, the husband 
 of the grantee can not claim a tenancy by curtesy in the 
 land. 2 
 
 Exemption. — As a fraudulent deed passes a good title 
 as between the debtor and the grantee, the former is not 
 entitled to a homestead 3 or exemption 4 out of the property, 
 although the creditors set the deed aside as to all that is 
 liable to be taken on execution. 
 
 Rescission. — The law does not deprive parties of the 
 power of repentance, but rather encourages them to 
 abandon fraudulent conveyances and make honest bar- 
 gains instead of them. The grantee will not be liable to 
 creditors if he restores the property to the debtor, 5 or 
 •applies it to the payment of the grantor's debts. 6 The 
 parties may also rescind the fraudulent contract and enter 
 
 1 King v. King, 61 Ala. 479 ; Gross v. Lange, 70 Mo. 45 ; Whithead v. 
 Mallory, 58 Miss. 138. 2 Piper v. Johnston, 12 Minn. 60. 
 
 3 Sumner v. Sawtelle, 8 Minn. 309 ; Stancill v. Branch, 1 Phillips, 306 ; 
 Getzler v. Saroni, 18 111. 511 ; Cassell v. Williams, 12 111. 387 ; Keating 
 v. Keefer, 5 N. . R. 133 ; in re Dillard, 9 N". B. E. 8 ; Gibbs v. Patten, 
 2 Lea, 180 ; Piper v. Johnson, 12 Minn. 60. Contra, Bartholomew v. West, 
 8 N. B. R. 12 ; s. c. 2 Dillon, 90 ; Cox v.Wilder,7 N. B. R. 241 ; s. c. 2 Dillon, 
 132 ; s. c. 5 N. B. R. 443 ; Penny v. Taylor, 10 N. B. R. 200 ; McFarland v. 
 Goodman, 6 Biss. Ill ; s. c. 11 N. B. R. 134; Vogler v. Montgomery, 54 
 Mo. 577 ; Sears v. Hanks, 14 Ohio St. 298 ; Thomason v. Neeley, 50 Miss. 
 310 ; Newman v. Willets, 52 111. 98 ; Pennington v. Seal, 49 Miss. 518 ; 
 Edmonson v. Meacham, 50 Miss. 34 ; Knevan v. Specker, 11 Bush, 1 ; 
 State v. Diveling, 66 Mo. 375 ; Jaffers v. Aneals, 91 111. 487 ; Turner v. 
 Vaughan, 33 Ark. 454 ; Bennett v. Hutson, 33 Ark. 762. 
 
 4 Huey's Appeal, 29 Penn. 219 ; Carl v. Smith, 28 Leg. Int. 366 ; 
 Stevenson v. White, 87 Mass. 148 ; in re Graham, 2 Biss. 449 ; vide 
 Vaughan v. Thompson, 17 111. 78. 
 
 Cramer v. Blood, 57 Barb. 155 ; s. c. 48 N. Y. 684. 
 " Hutchins v. Sprague, 4 N. H. 469 ; Kauge v. Bridge, 2 Robt. 459, ; 
 Crowninshield v. Kittridge, 48 Mass. 520. 
 
HOW FAR A FRAUDULENT TRANSFER IS VOID. 483 
 
 into a new contract for a sale or other transfer of the pro- 
 perty, 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. 1 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. 8 Although 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. 3 
 The grantor and the grantee may also unite in a transfer 
 of the property to a bona fide purchaser, and he will 
 acquire all the rights of both, and will not be necessarily 
 affected by any illegality in the first transfer. 4 
 
 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 arrange- 
 ment 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. 5 If a transfer is 
 fraudulent, the subsequent payment in full of the purchase 
 money will not render it valid. 6 So also if the transaction 
 
 1 King v. Cantrell, 4 Ired. 251 ; Merrill v. Meachum, 5 Day, 341 ; 
 Matthews v. Buck, 43 Me. 265 ; Borland v. Mayo, 8 Ala. 104 ; White v. 
 White, 13 Ired. 265 ; Thrall v. Spencer, 16 Conn. 139 ; Waller v. Todd, 3 
 Dana, 503 ; Oriental Bank v. Haskins, 44 Mass. 332 ; Harvey v. Mix, 24 
 Conn. 406 ; vide Halcombe v. Ray, 1 Ired. 340. 
 
 a Allen v. Holland, 3 Yerg. 343. 
 
 s Roane v. Bank, 1 Head, 526; Stoddard v. Butler, 7 Paige, 163; 
 S. C. 20 Wend. 507 ■;. Peacock v. Tompkins, Meigs, 317. 
 
 4 Eaton v. Campbell, 24 Mass. 10 ; Breckinridge v. Anderson, 3 J. J. 
 Marsh. 710 ; G-ridley v. Wynant, 23 How. 500 ; Brown v. Riley, 22 111. 
 45 ; Wall v. White, 3 Dev. 105 ; White v. White, 13 Ired. 265 ; Parker v. 
 Crittenden, 37 Conn. 148. 
 
 5 Bunn v. Ahl, 29 Penn. 387 ; Sparks v. Mark, 31 Ark. 666. 
 
 6 Borland v. Mayo, 8 Ala. 104 ; Chenery v. Palmer, 6 Cal. 119. 
 
484 HOW FAR A FRAUDULENT TRANSFER IS VOID. 
 
 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. 1 
 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. 2 
 
 Administrator. — If the grantee dies before a rescission 
 of a transfer, the personal property will vest in his per- 
 sonal representatives, and no return can be made which 
 will interfere with their rights. 3 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 require the enforcement of the judgment. 4 
 
 Assignee.. — If the debtor subsequently makes an assign- 
 ment, 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. 5 
 
 1 Wood v. Hunt, 38 Barb. 302 ; Danjean v. Blacketer, 13 La. An. 595 ; 
 Lynde v. McGregor, 95 Mass. 182 ; Stone v. Grubbam, 2 Bulst. 217 ; s. c. 
 1 Bol. Bep. 3 ; Law v. Payson, 32 Me. 521 ; Halcombe v. Ray, 1 Ired. 340. 
 
 2 Smith v. Epsy. 9 N. J. Eq. 160. 3 Dearman v. Badcliffe, 5 Ala. 192. 
 4 Kavanaugh v. Thompson, 16 Ala. 817. 
 
 6 Brownell v. Curtis, 10 Paige, 210 ; Browning v. Hart, 6 Barb. 91 ; 
 Storm v. Davenport, 1 Sandf. Ch. 135 ; Thomson v. Dougherty, 12 S. & R. 
 448 ; Yandyke v. Christ, 7 W. & S. 373 ; Leach v. Kelsey, 7 Barb. 466 ; 
 Esterbrook v. Messersmith, 18 Wis. 545 £Maiders v. Culver, 1 Duval, 
 164; Van Keuren v. McLaughlin, 21 N. J. Eq. 163; Luckenbach v. 
 Brickenstein, 5 W. & S. 145; Rogers v. Fales, 5 Penn. 154; Pillsbury v. 
 Kingon, 31 N. J. Eq. 619 ; Flower v. Cornish, 25 Minn. 473 ; Mann v. 
 Flower, 25 Minn. 500 ; Heinrich v. Woods, 7 Mo. Ap. 236 ; vide Engle- 
 bert v. Blanjot, 2 Whart. 240 ; Swift v. Thompson, 9 Conn. 63 ; Gait v. 
 Dibrell, 10 Yerg. 146; Gaylor v. Harding, 37 Conn. 508; Rood v. Welch, 
 28 Conn. 157; Shipman v. ^Stna Ins. Co., 29 Conn. 245; Bayard v. 
 Hoffman, 4 Johns. Ch. 450. 
 
HOW FAR A FRAUDULENT TRANSFER IS VOID. 485 
 
 Prior Interests not Extinguished. — If creditors avoid 
 the conveyance, the law remits and restores the grantee to 
 his previously existing legal rights. A prior interest will 
 not be deemed to be merged in an estate which has been 
 lost, for the law will not consider a deed to be in force 
 which has been avoided. When a grantee loses an inter- 
 est which he obtained fraudulently, it is to him as if it 
 had never existed. This gives the statute its proper and 
 legitimate effect, permits the grantee to hold nothing by 
 his fraudulent 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 interest and restores the parties to their 
 original position. If the transfer consists of a release of 
 an equity of redemption, the mortgage is revived when it 
 is set aside. 1 Although an indorsement on a mortgage is 
 fraudulent, yet when that is set aside the mortgage will 
 be valid. 2 The dower of the debtor's wife will be revived 
 when a deed from the grantee to her is vacated. 3 If the 
 grantee purchases a prior mortgage he will be entitled to 
 retain it after the fraudulent transfer has been set aside.* 
 A fraudulent 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. 5 
 
 1 Ladd v. Wiggin, 35 N. H. 421 ; Mead v. Combs, 19 N. J. Eq. 112 ; 
 Stokoe v. Cowan, 29 Beav. 637 ; Ripley v. Severance, 23 Mass. 474 ; Britt 
 v. 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 ; s. o. 6 J. J. Marsh. 398 ; vide Clayborn v. Hill, 1 Wash. (Va.) 177. 
 
 2 Whithed v. Pillsbury, 13 N. B. E. 241. 
 
 3 Roberts v. Jackson, 1 Wend. 478 ; Humes v. Scruggs, 64 Ala. 40. 
 4 Mallonee v. Horan, 49 N. Y. Ill ; s. c. 12 Abb. Pr. (N. S.) 289; 
 
 Bobb v. Woodward, 50 Mo. 95 ; Towle v. Hoitt, 14 N. H. 61. 
 5 Haven v. Low, 2 N. H. 13. 
 
486 HOW FAR A FRAUDULENT TRANSFER IS VOID. 
 
 Void in Part is Void in Toto. — If a part of the con- 
 sideration for a transfer is merely a nominal or colorable 
 consideration, contrived to hinder, delay, or defraud credi- 
 tors, the whole transfer is void. 1 If a man who has goods 
 but of the value of £30 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 £10 he shall be favorable 
 unto him, the sale is altogether void, for it is fraudulent 
 in part. 3 So also if a creditor takes a mortgage, 3 or a 
 judgment,* or issues an attachment, 5 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 inadvert- 
 ently, and the creditor has no purpose of obtaining any 
 more than is due to him, it will be valid. 6 
 
 Fraudulent as to Part of the Property. — If a mort- 
 gage is made with the intent to secure a part of the pro- 
 
 1 Floyd v. Goodwin, 8 Yerg. 484; Marriott v. Givens, 8 Ala. 694; 
 Tatum 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, 19 N. J. Eq. 112 ; Hall v. Heydon, 41 Ala. 
 242 ; Albee v. Webster, 16 N". H. 362 ; Coolidge v. Melvin, 42 N. H. 510 ; 
 Johnson v. Murchison, 1 Winst. 292; vide Gicker v. Martin, 50 Penn. 138. 
 
 2 Wilson & Wormal's Case, Godbolt, 161. 
 
 3 Holt v. Creamer, 34 N". J. Eq. 181 ; Heintze v. Bentley, 34 N. J. Eq. 
 562. 
 
 4 Pierce v. Partridge, 49 Mass. 44; Whiting v. Johnson, 11 S. &.R. 
 328 ; Fryer v. Bryan, 2 Hill Ch. 56 ; Bowie v. Free, 3 Rich. Eq. 403 ; 
 Dickinson v. Way, 3 Bich. Eq. 412 ; Gates v. Johnson, 3 Penna. 52. 
 
 8 Fairfield v. Baldwin, 29 Mass. 388 ; Taaffe v. Josephson, 7 Cal. 352; 
 Hale v. Chandler, 3 Mich. 531 ; Harding v. Harding, 25 Vt. 487. 
 
 6 Felton v. Wadsworth, 61 Mass. 587 ; Ayres v. Husted, 15 Conn. 504 ; 
 Shedd v. Bank, 32 Vt. 709 ; Davenport v. Wright, 51 Penn. 292 ; Wilder 
 v. Fondey, 4 Wend. 100 ; Harris v. Alcock, 10 G. & J. 226. 
 
HOW FAR A FRAUDULENT TRANSFER IS VOID. 487 
 
 perty 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 creditors. This 
 can not be true when the object as to a part of the pro- 
 perty is to defraud creditors. This unlawful design 
 vitiates the entire instrument. The unlawful design can 
 not be confined to one particular parcel of property. 
 Entire honesty and good faith are necessary to render the 
 instrument valid, and whenever it appears that one object 
 was to defraud creditors, the entire deed is in judgment of 
 law void. 1 When fraud, however, is imputed from the 
 mere omission to deliver the possession of the property to 
 the grantee, the transfer will be good as to the articles 
 which are delivered, although it may be void as to the 
 residue. 3 
 
 A Fraudulent Stipulation. — A fraudulent stipulation 
 in a written instrument vitiates the entire instrument. 
 The taint as to a part makes the whole void. Wherever 
 an instrument is good in part and fraudulent in part, it is 
 
 1 Russell v. Winne, 37 N. Y. 591 ; s. o. 4 Abb. Pr. (N. S.) 384 ; Divver 
 v. McLaughlin, 2 Wend. 596 ; Ticknor v. Wiswall, 9 Ala. 305 ; Goodhue 
 v. Berrien, 2 Sandf. Ch. 630 ; Darwin v. Handley, 3 Yerg. 502 ; Young v. 
 Pate, 4 Yerg. 164 ; Sommerville v. Horton, 4 Yerg. 541 ; Swinford v. 
 Rogers, 23 Cal. 233; Harman v. Hoskins, 56 Miss. 142 ; vide Shurtleff v. 
 Willard, 36 Mass. 202 ; Chase v. Walker, 26 Me. 555 ; Barnet v. Fergus, 
 51 111. 352; in re Kahley et al., 2 Biss. 383 ; s. C. 4 N. B. R. 378 ; Allen 
 v. Brown, 43 Geo. 305 ; in re Perrin, 7 N. B. R. 283 ; Donnell v. Byern, 
 69 Mo. 468 ; in re Kirkbride, 5 Dill. 116 ; in re Geo. P. Morrill, 2 Saw. 
 356; s. c. 8N. B. R. 117. 
 
 a De Wolf v. Harris, 4 Mason, 515 ; S. c. 4 Pet. 147 ; De Bardleben v. 
 Beekman, 1 Dessau. 346; Brown v. Poree, 7 B. Mon. 357; Weller v. 
 Wayland, 17 Johns. 102; Lee v. Huntoon, Hoff. 447 ; Spaulding v. Austin, 
 2 Vt. 555 ; Hessing v. McCloskey, 37 111. 341. 
 
488 HOW FAR A FRAUDULENT TRANSFER IS VOID. 
 
 void altogether, and no interest passes under the part 
 which is good. 1 
 
 Several Grantees. — The same instrument may be 
 evidence of a gift, grant, or conveyance to different indi- 
 viduals 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 consideration that 
 the fraud of one can not implicate the other in any dis- 
 honest 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 fraudulent grantee and 
 valid as a security for the claim of the innocent grantee. 2 
 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. 3 
 Where a sheriff holds two executions, one of which is 
 valid and the other fraudulent, a sale will be referred to 
 that which is valid, and even the fraudulent execution 
 creditor will obtain a good title by purchase at the sale if 
 he does not receive any benefit from the proceeds. 4 
 
 Valid for some Purposes. — A fraudulent recovery 
 stands good to bar those in remainder or reversion, as if 
 
 1 Hyslop v. Clarke, 14 Johns. 458 ; Mackie v. Cairns, 5 Cow. 547; s. c. 
 1 Hopk. 373 ; Goodrich v. Downs, 6 Hill, 438 ; Albert v. Winn, 7 Gill. 
 446 ; s. c. 5 Md. 66 ; s. c. 2 Md. Ch. 42, 169 ; McClurg v. Lecky, 3 Penna. 
 83 ; Robins v. Embry, 1 S. & M. Ch. 207 ; Jacot v. Corbett, 1 Chev. Eq. 
 71 ; Howell v. Edgar, 4 111. 417 ; Dana v. Lull, 17 Vt. 390 ; Caldwell v. 
 Williams, 1 Ind. 405 ; Pierson v. Manning, 2 Mich. 445 ; Green v. Branch 
 Bank, 33 Ala. 643 ; Greenleaf v. Edes, 2 Minn. 264 ; Palmer v. Giles, 5 
 Jones Eq. 75 ; Spies v. Boyd, 1 E. D. Smith, 445. 
 
 2 Prince v. Shepard, 26 Mass. 176 ; Anderson v. Hooks, 9 Ala. 704 ; 
 Gary v. Colgin, 11 Ala. 514 ; Smith v. Post, 3 T. & C. 647 ; Troustine 
 v. Lask, 4 Baxter, 162 ; vide Pettibone v. Phelps, 13 Conn. 445 ; Ester- 
 brook v. Messersmith, 18 Wis. 545. 
 
 8 Lewis v. Caperton, 8 Gratt. 148 ; Swartz v. Hazlett, 8 Cal. 118. 
 * Gregg v. Bigham, 1 Hill (S. C.) 299. 
 
HOW FAR A FRAUDULENT TRANSFER IS VOID. 489 
 
 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. 1 When the fraud 
 consists in the creation 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 directs who shall take the benefit. 3 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. 3 If a 
 note is taken in the name of another, the maker, when 
 innocent of the fraud, can not be held liable to creditors. 4 
 
 1 Tarleton v. Liddell, 17 Q. B. 390 ; s. c. 4 DeG. & Sim. 538. 
 
 a Shee v. French, 3 Drew, 716 ; Neale v. Day, 28 L.J. Ch. 45 ; French 
 v. French, 6 DeG. M. & G. 95 ; s. c. 25 L. J. Ch. 612; Wakefield v. Gib- 
 bon, 1 Giff. 401. 
 
 3 Cutting v. Pike, 21 N. H. 347. 
 
 4 Patterson v. Whittier, 19 N. H. 192. 
 
CHAPTEK XVII. 
 
 BONA FIDE PURCHASERS. 
 
 Purchaser as well as Grantee Protected. — Is qui 
 a debitors cujus bona possessa sunt sevens rem emit iterum 
 alii bona fide ementi vendidit. Quaesitum est an seevmdus 
 emptor conveniri potest; sed verior Sabmi sententia bona 
 fide emptorem non teneri; quia dolus ei duntaxat nocere 
 debeat qui eum admisit? The principle that fraud is only 
 prejudicial to him who participates in it is also recognized 
 by the statute. The proviso protects all interests and 
 estates lawfully conveyed or assured upon good considera- 
 tion and bona fide to a person who, at the time of such 
 conveyance or assurance, has no manner of notice or 
 knowledge of the covin, fraud or collusion. These terms 
 are broad and extensive. 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 con- 
 sideration and bona fide to any person not having notice 
 of the fraud or collusion from the effect of the statute. 
 Its benefits therefore extend to any bona fide purchaser 
 for valuable consideration, whether he purchases from the 
 
 1 Dig. Lib. 42, tit. 9 ; 3 Pothier Pand. Lib. 42, tit. 8, art. 3, § 25, p. 
 195. 
 
BONA FIDE PURCHASERS. 491 
 
 fraudulent grantor or the fraudulent grantee. 1 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 ostensibly 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. 2 
 
 Voidable Only. — The statute, it is true, declares a 
 fraudulent transfer to be clearly and utterly void, frustrate 
 and of none effect. There is a distinction, however, be- 
 tween 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 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 
 
 ! Anderson v. Roberts, 18 Johns. 515 ; S. c. 2 Johns. Ch. 372 ; Mateer 
 v. Hissim, 3 Penna. 160 ; Bean v. Smith, 2 Mason, 252 ; Martin v. Cowles, 
 1 Dev. & Bat. 29. 
 
 2 Lee v. Abbe, 2 Root, 359 ; Bean v. Smith, 2 Mason, 252 ; Martin v. 
 Cowles, 1 Dev. & Bat. 29. 
 
492 BONA FIDE PURCHASERS. 
 
 himself after it is done. Whenever the act done takes 
 effect as to some purposes, and is void as to persons who 
 have an interest in impeaching it, the act is not a nullity, 
 and therefore in a legal sense is not utterly void, but 
 merely voidable. 1 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 liability to be impeached 
 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 becomes sound and inde- 
 feasible. 2 There is no distinction in this respect between 
 aotual and constructive fraud. 3 
 
 1 Anderson v. Roberts, 18 Johns. 515 ; s. c. 2 Johns. Ch. 372 ; Martin 
 v. Cowles, 1 Dev. & Bat. 29. 
 
 2 George v. Kimball, 41 Mass. 234; 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. Pahnestock, 8 
 Walts, 489 ; Mateer v. Hissim, 3 Penna. 160 ; Ewing v. Cargill, 21 Miss. 
 79 ; Blake v. Williams, 36 N. H. 39 ; Paige v. O'Neal, 12 Cal. 483 ; Green 
 v. Tanner, 49 Mass. 411 ; Sutton v. Lord, 1 Dane. Ab. 631 ; 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 v. 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 
 v. Stryker, 42 Barb. 284 ; s. c. 27 How. Pr. 387 ; Wineland v. Coonce, 5 
 Mo. 296 ; Pine v. Rikert, 21 Barb. 469 ; Simpson v. Simpson, 7 Humph. 
 275 ; Choteau v. Jones, 11 111. 301 ; Comm. v. Richardson, 8 B. Mon. 81 ; 
 Richards v. Ewing, 11 Humph. 327 ; Colquitt v. Thomas, 8 Geo. 258 ; 
 Sinclair v. Healy, 40 Penn. 417; Curtis v. Riddle, 89 Mass. 185; Rankin 
 v. Arndt, 44 Barb. 251 ; Parker v. Crittenden, 37 Conn. 148 ; Danbury v. 
 Robinson, 14 N. J. Eq. 213 ; Priedenwald v. Mullan, 10 Heisk. 226 ; St. 
 Louis M. L. Co. v. Cravens, 69 Mo. 72 ; Fury v. Kempin, 9 Mo. Ap. 30. 
 Contra, Preston v. Crofut, 1 Conn. 527, note ; Read v. Staton, 3 Hay. 
 (Tenn.) 159. 
 
 s Thompson v. Lee, 3 W. & S. 479. 
 
bona fide purchasers. 493 
 
 Must be Bona Fide and for Valuable Consider- 
 ation. — 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, 1 or if he has notice of the 
 fraud, 2 he is in the same position 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. 3 An extension of the time for the pay- 
 ment of a pre-existing debt is, however, a valuable con- 
 sideration. 4 The relinquishment of a 'security is a good 
 consideration. 5 The transaction between the fraudulent 
 grantee and the purchaser must be completely closed by 
 the payment of all the purchase money and the comple- 
 tion of the transfer before the notice, or the purchaser can 
 not hold the property. 6 Notice before the payment of the 
 
 1 Forrest v. Camp, 16 Ala. 642. 
 
 5 Parkman v. Welch, 36 Mass. 231 ; Wise v. Tripp, 13 Me. 9 ; Garland 
 v. Rives, 4 Rand. 282 ; Knox v. Hunt, 18 Mo. 174 ; O'Connor v. Bernard, 
 2 Jones, 654 ; Dockray v. Mason, 48 Me. 178 ; Wade v. Saunders, 70 N. 
 C. 270 ; Sedgwick v. Place, 10 N. B. R. 28 ; Harrell v. Beall, 9 N. B. R. 49 ; 
 Brow v. Houser, 61 Geo. 629 ; Goshom v. Snodgrass, 17 W. Va. 717. 
 
 3 Manhattan Co. v. Evertson, 6 Paige, 457; Agricultural Bank v. 
 Dorsey, 1 Freem. Ch. 338 ; Jessup v. Hulse, 29 Barb. 539 ; s. c. 21 N. Y. 
 168 ; Fleming v. Grafton, 54 Miss. 79 ; De Witt v. Yan Sickle, 29 N. J. 
 Eq. 209 ; Prout v. Vaughn, 52 Vt. 451. Contra, Knox v. Hunt, 18 Mo. 
 174; Thornton v. Hook, 36 Cal. 223; Okie v. Kelly, 12 Penn. 323. 
 
 4 Thames v. Rembert, 63 Ala. 561. 
 
 6 Agricultural Bank v. Dorsey, 1 Freem. Ch. 338. 
 
 6 Dugan v. Vattier, 3 Blackf. 245 ; Colquitt v. Thomas, 8 Geo. 258 ; 
 Rhodes v. Green, 36 Ind. 7. 
 
494 BONA FIDE PURCHASERS. 
 
 purchase money, 1 or the completion of the transfer, 2 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 con- 
 sideration. 3 
 
 What Notice Sufficient. — The notice of the fraud 
 need only be sufficient to put a man of ordinary prudence 
 and experience in business transactions upon the inquiry. 4 
 It is sufficient if the information is so definite as to enable 
 the purchaser to ascertain whether it is authentic, 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. 5 
 When a purchaser has knowledge of any fact sufficient 
 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 purchaser. 6 This notice may be derived from 
 
 1 Dixon v. Hill, 5 Mich. 404 ; Marsh v. Armstrong, 20 Minn. 81 ; vide 
 Newlin v. Osborne, 6 Jones (N. C.) 128 ; Phelps v. Morrison, 25 N. J. 
 Eq. 538. 
 
 - Farnsworth v. Bell, 5 Sneed, 531 ; Jones v. Read, 3 Dana, 540. 
 
 » Rogers v. Hall, 4 Watts, 359. 
 
 4 Ringgold v. Waggoner, 14 Ark. 69 ; Johnston v. Harvey, 2 Penna. 82 ; 
 Baker v. Bliss, 39 N. Y. 70 ; Harrell v. Beal, 9 N. B. R. 49 ; Brow v. 
 Houser, 61 Geo. 629 ; Stearns v. Gage, 79 N. Y. 102. 
 
 "Martel v. Somers, 26 Tex. 551. 
 
 6 Baker v. Bliss, 39 N". Y. 70 ; vide Carroll v. Hayward, 124 Mass. 120. 
 
BONA FIDE PURCHASERS. 495 
 
 the statement of creditors or other parties. 1 The debtor's 
 retention of the possession of land, 2 or personal property, 3 
 is not a sufficient notice of any fraud in the transaction. 
 The purchaser is chargeable with notice of all the matters 
 which appear to be within the knowledge and memory of 
 his agent. 4 
 
 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 inquire 
 whether the title of his grantor was not fraudulent. On 
 the contrary, he has a right to act upon the legal pre- 
 sumption 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 con- 
 veyance is fraudulent. 5 He is, however, bound to take 
 notice of any fraud apparent upon the face of a deed 
 under which he claims title. 6 
 
 Purchaser of Chattel Mortgage. — There is a dis- 
 tinction between real and personal estate. The title to 
 
 - Martel v. Somers, 26 Tex. 551. s Suiter v. Turner, 10 Iowa, 517. 
 
 8 Danzey v. Smith, 4 Tex. 411 ; Boyle v. Eankin, 22 Penn. 168. 
 
 4 Hook v. Mowre, 17 Iowa, 195; vide Hood v. Fahnestock, 8 Watts, 
 489. 
 
 5 Frazer v. Western, 1 Barb. Ch. 220 ; s. C. 1 How. App. Cas. 448 ; 
 Sparrow v. Chesley, 19 Me. 79 ; Gabler v. Boyd, 22 Pitts. L. J. 89. 
 
 6 Farmers' Bank v. Douglass, 19 Miss. 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 v. Harvey, 2 Penna. 82. 
 
 32 
 
496 BONA FIDE PURCHASERS. 
 
 real property can only be transferred by deed, but no 
 deed or writing is made by law essential to the transfer of 
 title to personal property. A purchaser must take it 
 upon his vendor's warranty of title. A purchaser who 
 takes an assignment of a fraudulent chattel mortgage after 
 the assignee in bankruptcy or insolvency has taken pos- 
 session of the property under an absolute claim of right, 
 and converted it to his own use, will not be deemed a 
 bona fide purchaser, even though he had no notice of the 
 fraud. 1 
 
 Subsequent Judgment.: — In the case of a fraudulent 
 transfer of land, a subsequent judgment against the grantor 
 is not constructive notice to a purchaser from the grantee, 
 for upon searching the records and finding the transfer, 
 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 jndgments may not have 
 been recovered against the debtor. 2 Therefore if he buys 
 the land from the grantee in good faith and for a valuable 
 consideration prior to a sale under an execution on the 
 judgment, he will acquire a good title notwithstanding the 
 judgment, 3 or even the issuing of an execution thereon, 4 for 
 the bona fides and valuable consideration in the second 
 purchase supply the want of these qualities in the first, 
 so as to perfect the title of the bona fide purchaser by 
 
 - Bigelow v. Smith, 84 Mass. 264. 
 
 2 Ledyard v. Butler, 9 Paige, 132 ; Jackson v. Terry, 13 Johns. 471 ; 
 Scott v. Purcell, 7 Blackf. 66. 
 
 8 Anderson v. Roberts, 18 Johns. 515 ; S. c. 2 Johns. Ch. 372; Scott 
 v. Purcell, 7 Blackf. 66 ; Wood v. Wright, 4 Fed. Rep. 511 ; Murray v. 
 Jones, 50 Geo. 109 ; Beall v. Harrell, 7 N. B. R. 400 ; s. c. 1 Woods, 476. 
 
 4 Young v. Lathrop, 67 N. 0. 63 ; Williams v. Lowe, 4 Humph. 62 ; 
 Thames v. Rembert, 63 Ala. 561. Contra, McCabe v. Snyder, 3 Phila. 
 192. 
 
BONA FIDE PURCHASERS. 497 
 
 carrying it back to the debtor and thus divest any lien 
 that may have attached in the interval. If a party, how- 
 ever, purchases after the levying of an execution 1 or an 
 attachment, 2 or during the pendency of a bill in equity to 
 set aside the conveyance, 3 he is a purchaser pendente lite, 
 and his rights are subordinate to those of the creditors. 
 A party who purchases at a sale under an execution has 
 the prior right as against a party who subsequently buys 
 the property from the grantee, although the latter has no 
 notice of the prior sheriff's sale. 4 His right to priority is 
 not affected by the fact that his deed is not executed until 
 after the execution of the deed from the fraudulent 
 grantee, for his deed relates back to the day of the sale. 5 
 The rights of the respective purchasers are liable, how- 
 ever, to be affected by the laws relating to the registration 
 of deeds. If a purchaser at a sale under an execution 
 records his deed prior to a purchase from the grantee, he 
 has the prior right. 6 But his deed will be postponed to a 
 subsequent deed from the grantee if that is recorded first, 
 although his deed is prior in point of time, for the priority 
 of conveyances as between purchasers deriving title 
 under the fraudulent grantor and fraudulent grantee 
 respectively depends upon the time of recording the con- 
 veyances. 7 It has, however, been held that a sale under 
 an execution of property fraudulently purchased in the 
 
 '- Brown v. Niles, 16111. 385 ; Tomlin v. Crawford, 61 Geo. 128. 
 
 2 Tuttle v. Turner, 28 Tex. 759. 
 
 3 Jackson v. Andrews, 7 Wend. 152 ; Collumb v. Bead, 24 N. Y. 505. 
 
 4 McCreery v. Pursley, 1 A. K. Marsh, 114 ; Eeed v. Smith, 14 Ala. 380 ; 
 Bead v. Staton, 3 Heyw. (Tenn.) 159 ; Hoke v. Henderson, 3 Dev. 12 ; 
 Baxter v. Sewell,.3 Md. 334 ; s. c. 2 Md. Ch. 447. 
 
 6 Hoke v. Henderson, 3 Dev. 12. 
 
 • Eeed v. Smith, 14 Ala. 380 ; Baxter v. Sewell, 3 Md. 334 ; s. c. 2 
 Md. Ch. 447 ; Orendorf v. Budlong, 12 Fed. Eep. 24. 
 
 ' Ledyard v. Butler, 9 Paige, 132 ; Jackson v. Terry, 13 Johns. 471. 
 
498 BONA FIDE PURCHASERS. 
 
 name of another, and a record of the sheriff's deed, would 
 not prevail against a subsequent bona fide 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. 1 If property is fraudulently purchased 
 in the name of another, a party who buys from the grantee 
 has a valid title as against the creditors, although his 
 deed is not recorded at the time of the filing of a bill to 
 set aside the conveyance. 3 When the commencement of 
 such a proceeding creates a lis pendens, a party who buys 
 the property at a sale under the same has the prior right 
 as against a mortgage which was executed before, but not 
 recorded until after, the commencement of the proceeding. 3 
 
 Marriage. — If the property fraudulently conveyed has 
 been any inducement to a marriage, the marriage con- 
 stitutes a valuable consideration, and the husband and 
 wife are considered as purchasers. 4 The marriage, how- 
 ever, must take place before there is a lien upon the pro- 
 perty. 5 
 
 When Purchasers Protected. — If the purchase is 
 in good faith and for a valuable consideration, it is imma- 
 terial whether the conveyance is a quit claim deed or a 
 deed with full covenants of warranty. 6 A bona fide pur- 
 
 1 Crockett v. Maguire, 10 Mo. 34. s Coleman v. Cocke, 6 Kand. 618. 
 
 8 Ayrault v. Murphy, 54 N. Y. 203. 
 
 4 Wood v. Jackson, 8 Wend. 9 ; Bentley v. Harris, 2 Gratt. 357; Hus- 
 ton v. Cantril, 11 Leigh, 136 ; East India Co. v. [Clavell, Gilb. 37 ; s. c. 
 Prec. Ch. 377 ; 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. 
 132 ; vide Stokes v. Jones, 18 Ala. 734 ; s. o. 21 Ala. 731 ; Miller v. 
 Thompson, 3 Port. 196 ; O'Brien v. Coulter, 2 Blackf. 421. 
 
 * Pones v. Rice, 9 Gratt. 568. 
 
 6 Mansfield v. Dyer, 131 Mass. 200. 
 
BONA FIDE PURCHASERS. 499 
 
 chaser at a sale under an execution obtains a good title 
 although the judgment is fraudulent. 1 A mortgagee is 
 within the protection of the proviso, for a mortgagee is a 
 purchaser to the extent of his interest within the meaning 
 of the statute. 2 A bona fide purchaser of a fraudulent 
 mortgage obtains a valid title as against creditors. 3 If a 
 bona fide purchaser sells the property to the fraudulent 
 grantee and takes a mortgage to secure the purchase 
 money, he is within the protection of the proviso to the 
 extent of his mortgage. 4 A purchaser with notice of the 
 fraud will get a good title when no debts contracted prior 
 to his purchase remain unpaid. 5 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. 6 
 
 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 retained 
 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 
 
 1 Griffin v. Wardlaw, Harp. Ch. 481 ; Imray v. Magnay, 11 M. & W. 
 267. 
 
 s Ledyard v. Butler, 9 Paige, 132; Brooks v. D'Orville, 7 Ben. 485; 
 Sedgwick v. Place, 12 Blatch. 163 ; s. c. 10 N. B. E. 28 ; Farmers' Nat'l 
 Bank v. Teeter, 31 Ohio St. 36 ; Moore v. Sexton, 30 Gratt. 505 ; Stone 
 v. Bartlett, 46 Me. 438 ; Beynolds v. Park, 5 Lans. 149. 
 
 3 Sleeper v. Chapman, 121 Mass. 404 ; Logan v. Brick, 2 Del. Ch. 206 ; 
 Smart v. Bement, 4 Abb._Ap. 253. Contra, Fleming v. Grafton, 54 Miss. 
 79 ; Judge v. Vogel, 38 Mich. 569. " Spicer v. Bobinson, 73 111. 519. 
 
 6 Toole v. Darden, 6 Ired. Eq. 394. 
 
 6 Mateer v. Hissim, 3 Penna. 160 ; Wilson v. Ayre, 7 Me. 207 ; Evans 
 v. Nealis, 69 Ind. 148 ; Ste'wart v. Reed, 91 Penn. 287. 
 
500 BONA FIDE PURCHASERS. 
 
 recognition or addition whatever, and his right to do so in 
 favor of a creditor is as between the parties to the transac- 
 tion 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. 1 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 appli- 
 cation 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. 2 The 
 creditor, however, must act in good faith. 3 If he takes an 
 absolute deed and pays the grantee the difference 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 satisfaction of his claim 
 constitutes the real inducement to the transaction. 4 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 
 
 ' Webb v. Brown, 3 Ohio St. 246. 
 
 2 Boyd v. Brown, 34 Mass. 453 ; Webb v. Brown, 3 Ohio St. 246 ; 
 Stark v. Ward, 3 Penn. 328 ; Agricultural Bank v. Dorsey, 1 Freem. 
 Ch. 338 ; Butler v. White, 25 Minn. 432 ; Murphy v. Moore, 30 N. Y. 
 Supr. 95 ; vide Waggoner v. Cooley, 17 111. 239 ; Jewett v. Cook, 81 111. 
 260. 
 
 3 Copenheaver v. Huffacker, 6 B. Mon. 18 ; Brown v. Webb, 20 Ohio, 
 389. * Baker v. Bliss, 39 N. Y. 70. 
 
BONA FIDE PURCHASERS. 501 
 
 of the principle that permits a creditor to obtain payment 
 out of the property in whosesoever hands it may be. 1 If 
 the debtor takes a mortgage on the property as a part of 
 the fraud, and then assigns it to a creditor in satisfaction 
 of a pre-existing debt, the latter will not be a bona fide 
 holder for a valuable consideration. 2 . 
 
 ' Waggoner v. Cooley, 17 111. 239. 
 
 s De Witt v. Van Sickle, 29 N. J. Eq. 209 ; National Bank v. Sprague, 
 21 N. J.Eq. 530 ; 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, forfei- 
 tures, heriots, mortuaries or reliefs. The sole object 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 claim which is 
 merely pretended, 1 or is founded upon an illegal consider- 
 ation, 2 or which can not for any other reason be enforced, 3 
 is 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-interest 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 payment. 4 
 
 Liberal Construction. — The statute by the words 
 " creditors and others " embraces others than those who 
 
 1 Baker v. Gilman, 52 Barb. 26 ; Townsend v. Tuttle, 28 N. J. Eq. 449. 
 
 '* Alexander v. Gould, 1 Mass. i65 ; Fuller v. Bean, 30 N. H. 181 ; 
 Hanson v. Power, 8 Dana, 91 ; Bruggerman v. Hoerr, 7 Minn. 337. 
 
 8 Hart v. Hart, 5 Watts, 106 ; Edwards v. M'Gee, 31 Miss. 143. 
 
 4 Brady v. Briscoe, 2 J. J. Marsh. 212 ; Hook v. Mowre, 17 Iowa, 195 ; 
 Harris v. Harris, 23 Gratt. 737. 
 
WHO ARE CREDITORS. 503 
 
 are strictly and technically creditors. 1 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. 3 The statute protects all just and lawful 
 actions, suits, debts, accounts, damages, penalties and for- 
 feitures, and consequently all persons having such interests 
 must be included in the phrase "creditors and others." 3 
 It extends to every person having a legal demand against 
 another, whether the demand is one sounding in damages 
 or arises under a contract. 4 
 
 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. 5 
 The claim of a partner against his co-partner for his share 
 in the capital of the partnership is as fully protected as 
 the claims of the creditors against the partnership. 8 The 
 liability of a surviving partner to account for the partner- 
 ship property is a fixed present liability, and is within the 
 protection of the statute. 7 A contingent claim is as fully 
 protected as one that is absolute. 8 A liability as surety is 
 
 ' Feigley v. Feigley, 7 Md. 537 ; Shontz v. Brown, 27 Penn. 123. 
 
 1 Shontz v. Brown, 27 Penn. 123 ; Hutchinson v. Kelly, 1 Rob. 123 ; 
 Walradt v. Brown, 1 Gilman, 397. 
 
 8 Twyne's Case, 3 Co. 80 ; s. 0. Moore, 638 ; Walradt v. Brown, 1 
 Gilman, 397 ; Alston v. Bowles, 13 Fla. 117. 
 
 4 Harris v. Harris, 23 Gratt. 737. 
 
 6 Howe v. Ward, 4 Me. 195 ; Cook v. Johnson, 12 N". J. Eq. 51 ; Mott 
 v. Danforth, 6 Watts, 304. 
 
 6 White v. Russell, 49 111. 155 ; Swan v. Smith, 57 Miss. 548. 
 
 ' Alston v. Rowles, 13 Fla. 117. 
 
 8 Seward v. Jackson, 8 Cow. 406; s. o. 5 Cow. 67; Van Wyck v. 
 Seward, 18 Wend. 365 ; s. o. 6 Paige, 62 ; s. c. 1 Edw. 327 ; Shontz v. 
 Brown, 27 Penn. 123 ; McLaughlin v. Bank of Potomac, 7 How. 220 ; 
 
504 WHO ARE CREDITORS. 
 
 within the statute as much as a liability as principal. 1 
 The statute embraces all pecuniary damages incurred by 
 reason of the obligation of a contract, whether of an ascer- 
 tained amount or only sounding in damages, and whether 
 actually asserted or only demandable. 2 It extends to a 
 liability arising from the embezzlement of property en- 
 trusted to a party who sells it and appropriates the pro- 
 ceeds to his own use. 3 It includes voluntary bonds, 4 claims 
 for taxes, 5 and claims which are payable after the decease 
 of the debtor. 6 Its protection extends to an action for 
 slander, 7 or a tort, 8 a breach of a promise to marry, 9 the 
 
 Woodley v. Abby, 5 Call. 336 ; Gannard v. Eslava, 20 Ala. 732 ; Bay v. 
 Cook, 31 111. 336 ; Cook v. Johnson, 12 N. J. Eq. 51 ; Manhattan Co. v. 
 Osgood, 15 Johns. 162 ; s. c. 3 Cow. 612 ; Bibb v. Freeman, 59 Ala. 512 ; 
 Team v. Ward, 65 Ala. 33. 
 
 1 Eussell v. Stinson, 3 Heyw. 1 ; Carl v. Smith, 28 Leg. Int. 366 ; 
 Crane v. Stickles, 15 Vt. 253 ; Hutchinson v. Kelly, 1 Bob. 123 ; Curd v. 
 Lewis, 7 Gratt. 185 ; Gibson v. Love, 4Fla. 217 ; Bay v. Cook, 31 111. 336. 
 
 2 Hutchinson v. Kelly, 1 Bob. 123. 
 
 3 Pendleton v. Hughes, 65 Barb. 136. 
 
 4 Adames v. Hallett, L. B. 6 Eq. 468 ; Hanson v. Buckner, 4 Dana, 251. 
 
 5 Stimson v. Wrigley, 86 N. Y. 332. 
 
 6 Adames v. Hallett, L. E. 6 Eq. 468 ; Eider v. Kidder, 10 Ves. 360 ; 
 S. C. 12 Ves. 202 ; 13 Ves. 123 ; vide Henderson v. Dodd, 1 Bailey Ch. 138. 
 
 1 Jackson v. Myers, 18 Johns. 425 ; Lillard v. McGee, 4 Bibb. 165 ; 
 Hord v. Bust, 4 Bibb. 231 ; Fowler v. Frisbie, 3 Conn. 320 ; Walradt v. 
 Brown, 1 Gilman, 397 ; Hall v. Sands, 52 Me. 355 ; Langford v. Fly, 7 
 Humph. 585 ; Johnson v. Brandis, 1 Smith, 263 ; Wright v. Brandis, 1 
 Ind. 336 ; Farnsworth v. Bell, 5 Sneed, 531 ; Eogers v. Evans, 3 Ind. 
 574; Shean v. Shay, 42 Ind. 375 ; Cooke v. Cooke, 43 Md. 522. 
 
 8 Jackson v. Mather, 7 Cow. 301 ; Paul v. Crooker, 8 N. H. 288 ; Mc- 
 Lean v. Morgan, 3 B. Mon. 282; Lewkner v. Freeman, 1 Eq. Cas. Abr. 
 149 ; S. C. 2 Freem. 236 ; s. c. Prec. Ch. 105 ; M'Erwin v. 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 v. 
 Ford, 5 Sneed, 532, note; Vance v. Smith, 2 Heisk. 343; Barling v. 
 Bishopp, 29 Beav. 417 ; Corder v. Williams, 40 Iowa, 582 ; Scott v. Hart- 
 man, 26 N. J. Eq. 89 ; Martin v. Walker, 19 N. Y. Supr. 46 ; Bongard v. 
 Block, 81 111. 186 ; Westmoreland v. Powell, 59 Geo. 256. 
 
 9 Lowry v. Pinson, 2 Bailey, 324; Smith v. Culbertson, 9 Eich. 106; 
 Hoffman v. Junk, 51 Wis. 613. 
 
"WHO ARE CREDITORS. 505 
 
 support of a bastard child, 1 a false representation, 2 a de- 
 mand or forfeiture due to the State for offenses, 3 and a 
 claim for usurious interest. 4 
 
 Feme Covert and Others. — The claim of a feme covert 
 against her husband under a marriage settlement, 5 or in 
 proceedings instituted to obtain a divorce and alimony, 6 is 
 within the statute. A stockholder is not allowed to trans- 
 fer his property so as to defeat a liability imposed upon 
 him by statute for the debts of the corporation. 7 An heir 
 can not fraudulently alien assets which have descended 
 for the purpose of defeating his liability for the debts of 
 his ancestor. 8 A transfer for the purpose of defeating a 
 sequestration, 9 or an attachment, 10 is as fraudulent as a 
 
 1 Damon v. Bryant, 19 Mass. 411. 
 
 2 Miner v. Warner, 2 Grant, 448 ; s. 0. 2 Phila. 124. 
 
 3 Rex v. Nottingham, Lane, 42 ; State v. Fife, 2 Bailey, 337 ; Jones v. 
 Ashurst, Skin. 357 ; Morewood v. Wilkes, 6 C. & P. 144 ; Shaw t. Bran, 
 1 Stark. 319 ; Sanders v. Warton, 32 L. J. Ch. 224 ; s. c. 1 N. B. K. 256 ; 
 Perkins v. Bradley, 1 Hare, 219 ; s. o, 6 Jur. 254. 
 
 4 Heath v. Page, 63 Penn. 280. 
 
 » Eider v. Kidder, 10 Ves. 360 ; s. c. 12 Ves. 202 ; 13 Ves. 123. 
 
 6 Feigley v. Feigley, 7 Md. 537 ; Blenkinsopp v. Blenkinsopp, 1 De G. 
 M. & G. 495 ; s. c. 12 Beav. 568 ; s. o. 21 L. J. Ch. 404 ; Taylor v. Wyld, 
 8 Beav. 159 ; Claggett v. Gibson, 3 Cranch C. C. 359 ; Boils v. Boils, 1 
 Cold. 284; Brooks v. Caughran, 3 Head, 464; Ruffing v. Tilton, 12 Ind. 
 J259 ; Livermore v. Boutelle, 77 Mass. 217 ; Turner v. Turner, 44 Ala. 
 437 ; Morrison v. Morrison, 49 N. H. 69; Frakes v. Brown, 2 Blackf. 295 ; 
 Chase v. Chase, 105 Mass. 385 ; Boughslough v. Boughslough, 68 Penn. 
 495 ; Kamp v. Kamp, 46 How. Pr. 143 ; Draper v. Draper, 68 111. 17 ; 
 Bailey v. Bailey, 61 Me. 361 ; Nix v. Nix, 10 Heisk. 546 ; Dugan v. 
 Frisler, 69 Ind. 553. ' Marcy v. Clark, 17 Mass. 330. 
 
 8 Gooch's Case, 5 Co. 60 ; Leonard v. Bacon, Cro. Eliz. 234 ; Apharry 
 v. Bodingham, Cro. Eliz. 350 ; Richardson v. Horton, 7 Beav. 112 ; Het- 
 field v. Jacques, 10 N. J. 259. 
 
 9 Hamblyn v. Ley, 3 Swanst. 301, n.; Coulston v. Gardiner, 3 Swanst. 
 279 ; Empringham v. Short, 3 Hare, 461. 
 
 10 Pendleton & Gunston's Case, 1 Leon, 47 ; Getzler v. Saroni, 18 111. 
 511 ; Dixon v. Hill, 5 Mich. 404; Rinchey v. Stryker, 26 How. Pr. 75 ; 
 
506 WHO ARE CREDITORS. 
 
 transfer to defeat an execution. The responsibility for the 
 acts of a partner, 1 or of the principal to whom an accom- 
 modation indorser lends his name, 3 is a risk which the party 
 who enters into such a contract 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 everything which shall by law be forfeit 
 to the king or subject. Therefore if a man, to prevent a 
 forfeiture for felony or by outlawry, makes a conveyance 
 of all his goods and afterwards is attainted or outlawed, 
 the goods are forfeited notwithstanding the conveyance. 3 
 
 Eight not Personal. — A creditor can not treat a 
 transfer as void except as to his demand. If that is paid, 
 he is not deemed to be a creditor as to a subsequent debt. 4 
 The right however is not merely personal. If a creditor 
 transfers his claim, he can not impeach it any longer on 
 the 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. 5 The transfer is void not 
 only against creditors, but against those who represent 
 creditors. It. is void as against sheriffs, 6 purchasers at a 
 
 Van Kirk v. Wilds, 11 Barb. 520 ; Thayer v. Willett, 9 Abb. Pr. 325 ; 
 S. O. 5 Bosw. 344; Swanzey v. Hunt, 2 N. & M. 211. Contra, Hall v. 
 Stryker, 9 Abb. Pr. 342 ; s. 0. 29 Barb. 105 ; Bentley v. Goodwin, 15 
 Abb. Pr. 82. 
 
 1 Thomson v. Dougherty, 12 S. & R. 448. 
 
 3 Cook v. Johnson, 12 N. J. Eq. 51. 
 
 8 Twyne's Case, 3 Co. 80; s. c. Moore, 638. 
 
 4 Eobbins v. Sackett, 23 Kans. 301. 
 
 " Warren v. Williams, 52 Me. 343 ; Cook v. Ligon, 54 Miss. 652. 
 
 6 Turvil v. Tupper, Latch. 222 ; Schlussel v. Willett, 32 Barb. 615 ; s. 
 C. 12 Abb. Pr. 397 ; s. 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. 
 
WHO ARE CREDITORS. 507 
 
 sale under an execution, 1 assignees in bankruptcy, 3 and re- 
 ceivers appointed in proceedings supplemental to an exe- 
 cution. 3 
 
 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, although 
 no demand accrues until a subsequent date. 4 A covenant 
 with a general warranty, 5 a bond of conveyance, 6 and the 
 
 1 Cole v. White, 16 Wend. 511 ; s. c. 24 Wend. 116 ; Barr v. Hatch, 3 
 Ohio, 527 ; King v. Bailey, 6 Mo. 575. 
 
 ' Badger v. Story, 16 N. H. 168; Anderson v. Maltbie, 2 Ves. Jr. 244 
 Carr v. Hilton, 1 Curt. 230, 390 ; Ward v. Van Bokkelen, 2 Paige, 289 
 Giraud v. Mazier, 13 La. An. 147 ; Nouvet v. Bollinger, 15 La. An. 293 
 Shackleford v. Collier, 6 Bush, 149 ; Grimsby v. Ball, 11 M. & W. 531 
 Pott v. Todhunter, 2 Coll. 76; Butcher v. Harrison, 4 B. & A. 129 ; Jami- 
 son v. Chestnut, 8 Md. 34; Bradshaw v. Klein, 1 N. B. R. 542 ; s. C. 2 
 Biss. 20; in re Myers, 1~R. B. B. 581 ; s. C. 2 Ben. 424; in re Metzger, 
 2 N. B. R. 355 ; Tarns v. Bullitt, 35 Penn. 308. Contra, Reavis v. Gar- 
 ner, 12 Ala. 661 ; Waters v. Dashiell, 1 Md. 455 ; Robinson v. McDon- 
 nell, 2 B. & Aid. 134. 
 
 8 Bostwick v. Beizer, 10 Abb. Pr. 197 ; Porter v. Williams, 9 N. Y. 
 142 ; s. c. 12 How. Pr. 107. Contra, Seymour v. Wilson, 16 Barb. 294 ; 
 s. c. 14 N. T. 567 ; 19 N. T. 417 ; Hayner v. Fowler, 16 Barb. 300. 
 
 * Seward v. Jackson, 8 Cow. 406 ; s. c. 5 Cow. 67 ; Van Wyck v. 
 Seward, 18 Wend. 375 ; s. C. 6 Paige, 62 ; S. c. 1 Edw. 327 ; Gannard v. 
 Eslava, 20 Ala. 732 ; Black v. Cadwell, 4 Jones (N. C.) 150 ; Stone v. 
 Myers, 9 Minn. 303 ; White v. Sansom, 3 Atk. 410 ; East India Co. v. 
 Clavell, Gilb. 37 ; S. c. Prec. Ch. 377 ; S. c. 28 L. J. Ch. 719 ; Richard- 
 son v. Smallwood, Jac. 552 ; s. c. 1 Cond. Ch. 262 ; Mountford v. Ranie, 
 2 Keble, 499 ; Wooldridge v. Gage, 68 111. 157 ; Mattingly v. Wulke, 2 
 Bradw. 169 ; vide Fales v. Thompson, 1 Mass. 134 ; Bridgford v. Riddell, 
 55 111. 261 ; U. S. v. Steiner, 8 Blatch. 544. 
 
 6 Gannard v. Eslava, 20 Ala. 732 ; Seward v. Jackson, 8 Cow. 406 ; s. 
 C. 5 Cow. 67 ; Van Wyck v. Seward, 18 Wend. 375 ; S. c. 6 Paige, 62 ; 
 S. C. 1 Edw. 327 ; Rhodes v. Green, 36 Ind. 7 ; vide Bridgford v. Riddell, 
 55 111. 261. 6 Stone v. Myers, 9 Minn. 303. 
 
508 WHO ARE CREDITORS. 
 
 bond of an administrator, 1 take effect from the date of the 
 instrument. A surety is subrogated to all the rights of 
 the creditor whose claim he has paid. 2 An endorser has 
 the same rights as the holder of a note. 3 The claim of a 
 surety against either the principal, 4 or his co-surety, 5 is 
 referred to the date of the execution of the obligation. 
 But a surety upon an appeal bond who is compelled to 
 pay the judgment is entitled to all the rights of the judg- 
 ment creditor. 6 The claim of a principal against his agent 
 arises as soon as the agent receives the money or property 
 of the principal. 7 The liability of a surviving partner 
 dates from the death of the co-partner and the assump- 
 tion of the effects of the firm by him. 8 A demand arising 
 from a tort is in force from the time of the commission of 
 the wrong. 9 A trustee becomes a debtor as soon as he 
 receives the trust fund. 10 The claim of a residuary legatee 
 
 1 Anderson v. Anderson, 64 Ala. 403. 
 
 2 Cato v. Easley, 2 Stew. 214 ; Sargent v. Salmond, 27 Me. 539 ; Cho- 
 teau v. Jones, 11 111. 301 ; Greene v. Starnes, 1 Heisk. 582 ; Hurdt v. 
 Courtenay, 4 Met. (Ky.) 139 ; Taylor v. Heriot, 4 Dessau. 227 ; Huston 
 v. Cantrill, 11 Leigh, 136 ; Swindersine v. Miscally, 1 Bailey Ch. 304 ; 
 Heighe v. Farmers' Bank, 5 H. & J. 68 ; Highland v. Highland, 5 W. 
 Va. 63. 
 
 3 Cramer v. Reford, 17 N. J. Eq. 367 ; Primrose v. Browning, 56 Geo. 
 369. 
 
 4 Thompson v. Thompson, 19 Me. 244 ; Carlisle v. Rich, 8 N. H. 44 ; 
 Hatfield v. Mercer, 82 111. 113. 
 
 6 Howe v. Ward, 4 Me. 195 ; Sargent v. Salmond, 27 Me. 539 : Ray- 
 mond v. Cook, 31 Tex. 373 ; Crawford v. Kirksey, 50 Ala. 591 ; Smith v. 
 Rumsey, 33 Mich. 183. « Martin y. Walker, 19 N. Y. Supr. 46. 
 
 ' Young v. Heermans, 66 N. Y. 374. 
 
 « Alston v. Rowles, 13 Fla. 117. 
 
 9 Walradt v. Brown, 1 Gilman, 397 ; Langford v. Fly, 7 Humph. 585 ; 
 Farnsworth v. Bell, 5 Sneed, 531 ; Miller v. Dayton, 47 Iowa, 312 ; vide 
 Meserve v. Dyer, 4 Me. 52 ; Slater v. Sherman, 5 Bush, 206 ; Fowler v. 
 Frisbie, 3 Conn. 320 ; Ford v. Johnston, 14 N. Y. Supr. 563 ; Evans v. 
 Lewis, 30 Ohio St. 11. 10 McLemore v. Nuckolls, 37 Ala. 662. 
 
WHO ARE CREDITORS. 509 
 
 against an executor who holds the money to be paid upon 
 the death of another, dates from the time when the money 
 was received by the executor. 1 An accommodation note 
 dated anterior to the transfer, though discounted subse- 
 ' quently, is regarded as a prior claim. 2 A judgment for 
 costs takes effect only from the rendition of the judgment. 3 
 A judgment for a prior and subsequent demand is a sub- 
 sequent debt, for it can not be apportioned. 4 A town to 
 which the grantor applies for support has not such a fixed, 
 definite and certain legal claim that it can impeach a trans- 
 fer made before the application. 5 
 
 Evidence to Antedate. — A judgment is prima facie a 
 claim only from the institution of the suit. 6 The legal 
 presumption is that a note is executed by the maker at the 
 date upon its face, 7 and that an indorsement was made 
 before the maturity of the note. 8 In the absence of proof, 
 the origin of a debt is referred to the date of the note. 9 
 The rights of a creditor, however, 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 
 
 1 Soden v. Soden, 34 N. J. Eq. 115. 
 
 2 Williams v. Banks, 11 Md. 198 ; s. o. 19 Md. 22. 
 
 3 Pelham v. Aldrich, 74 Mass. 515 ; Ogden v. Prentice, 33 Barb. 160. 
 
 4 Baker v. Gilman, 52 Barb. 26 ; Beed v. Woodman, 4 Me. 400 ; Usher 
 v. Hazeltine, 5 Me. 471 ; Miller v. Miller, 23 Me. 22 ; Moritz v. Hoffman, 
 35 111. 553 ; Quimby v. Dill, 40 Me. 528 ; French v. Holmes, 67 Me. 186. 
 Contra, Ecker v. Lafferty, 20 Pitts. L. J. 135. 
 
 8 Fairbanks v. Benjamin, 50 Yt. 99. 
 
 9 Killer v. Johnson^ 27 Md. 6 ; White v. Beltis, 9 Heisk. 645 ; Marshall 
 v. Croom, 60 Ala. 121. 
 
 ' Williams v. Banks, 11 Md. 198 ; s. c. 19 Md. 22 ; Emery v. "Vinall, 
 26 Me. 295. 
 
 s McDowell v. Goldsmith, 6 Md. 319; s. C. 2 Md. Ch. 370; s. C. 24 
 Md. 214. 9 Johnston v. Zane, 11 Gratt. 552. 
 
510 WHO ARE CREDITORS. 
 
 judgment is founded upon a prior claim. 1 A note may be 
 shown to be given for a prior account/ or in renewal of a 
 prior note. 3 A novation does not affect the rights under 
 the debt. 4 A renewal by which a liability is created 
 different from that created by the original debt is a new 
 debt. 5 
 
 "Hindesv. Longworth, 11 Wheat. 199; Harlan v. Barnes, 5 Dana, 
 219 ; Williams v. Jones, 2 Ala. 314 ; Chandler v. Van Roeder, 24 How. 
 224. 
 
 2 Moore v. Spence, 6 Ala. 506 ; Blue v. Penniston, 27 Mo. 272 ; Cook 
 v. Ligon, 54 Miss. 652 ; Stout v. Stout, 77 Ind. 537 ; vidi Bangor v. 
 Warren, 34 Me. 324; Eigleberger v. Kibler, 1 Hill Ch. 113; Morsell v. 
 Baden, 22 Md. 391. 
 
 8 McLaughlin v. Bank of Potomac, 7 How. 220 ; Lowry v. Fisher, 2 
 Bush, 70 ; Lee v. Hollister, 5 Fed. Kep. 750. 
 
 4 Gardner v. Baker, 25 Iowa, 343. 
 
 5 Bank v. Marchand, 2 T. TJ. P. Charlt. 247. 
 
CHAPTER XIX. 
 
 INTERNATIONAL LAW. 
 
 Lex Loci. — The validity of an instrument conveying 
 property is to be determined according to the laws of the 
 place where it is made. 1 If it is invalid by those laws, it 
 will not be valid anywhere. 3 Questions of evidence per- 
 tain 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 instrument was executed. 3 
 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. 4 
 
 Land. — The title or disposition of real estate is exclu- 
 sively subject to the laws of the country where the land 
 is located, and a conveyance of it must conform to those 
 laws. 5 The courts of one State have no jurisdiction or 
 authority to set aside a fraudulent conveyance of land 
 situate in another State. 6 
 
 1 Martin v. Hill, 12 Barb. 631 ; Fairbanks v. Bloomfleld, 5 Duer, 434 ; 
 Balto. & Ohio R. R. Co. v. Glenn, 28 Md. 287 ; Trench v. Hall, 9 N. H. 
 137 ; Livermore v. Jenckes, 21 How. 126 ; Barton v. Bolton, 3 Phila. 369. 
 
 2 Fellows v. Commercial Bank, 6 Rob. (La.) 246 ; Graves v. Roy, 14 
 La. 454 ; Maberry v. Shisler, 1 Harring. 349. 
 
 3 Barton v. Bolton, 3 Phila. 369. 4 Watts v. Kilburn, 7 Geo. 356. 
 6 Osborn v. Adams, 35 Mass. 245 ; Bentley v. Whittemore, 18 N. J. 
 
 Eq. 366 ; Lamb v. Fries, 2 Penn. 83 ; Evans v. Dunkelberger, 3 Grant, 
 134 ; Gardner v. Commercial Bank, 95 111. 298 ; First Nat'l Bank v. 
 Hughes, 10 Mo. Ap. 7. 
 
 6 Fetter v. Cirode, 4 B. Mon. 482 ; Nicholson v. Leavitt, 4 Sandf. 252 ; 
 s. O. 6 N. Y. 510 ; s. c. 10 N. Y. 591 ; vide D'lvernois v. Leavitt, 23 
 Barb. 63. 
 33 
 
512 INTERNATIONAL LAW. 
 
 Personal Property. — It is one of the maxims of inter- 
 national 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 dispose 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 per- 
 plexity, for it would on most occasions be quite impracti- 
 cable for the owner of the goods, or the creditor to whom 
 the debt was due, to ascertain with sufficient exactness 
 the diversified 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. 1 A debt has no situs 
 
 1 Noble v. Smith, 6 R. I. 446 ; Moore v. Willett, 35 Barb. 663 ; Van 
 Buskirk v. Wan-en, 39 N. Y. 119 ; s. c. 34 Barb. 457 ; s. c. 13 Abb. Pr. 
 145 ; s. 0. 4 Abb. Ap. 457 ; Cage v. Wells, 7 Humph. 195 ; Fairbanks v. 
 Bloomfield, 5 Duer, 434 ; Ackerman v. Cross, 40 Barb. 465 ; Richardson 
 v. Leavitt, 1 La. An. 430 ; Caskie v. Webster, 2 Wall. Jr. 131 ; Law v. 
 Mills, 18 Penn. 185 ; Speed v. May, 17 Penn. 91 ; Frazier v. Fredericks, 
 24 N. J. 162 ; Russell v. Tunno, 11 Rich. 303 ; Robinson v. Repeleye, .2 
 Stew. 86 ; TJ. S. v. Bank of U. S., 8 Rob. (La.) 262 ; Mowry v. Crocker, 6 
 Wis. 326 ; Newman v. Bagley, 33 Mass. 570 ; Bholen v. Cleaveland, 5 
 Mason, 174 ; U. S. Bank v. Huth, 4 B. Mon. 423 ; Atwood v. Protection 
 Ins. Co., 14 Conn. 555 ; Hanford v. Paine, 32 Vt. 442 ; Walters v. Whit- 
 lock, 9 Fla. 86 ; Dundas v. Bowler, 3 McLean, 397 ; Houston v. Nowland, 
 
INTERNATIONAL LAW. 513 
 
 and is deemed in contemplation of law to be attached to 
 and to follow the person of the creditor. 1 
 
 State Statutes. — 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 territorial 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 imposition and fraud. And if such 
 regulations are adopted in conflict with the general rule, 
 they will prevail. 2 But a construction should not be 
 hastily given which would lead to a conflict if an inter- 
 pretation can be fairly made to avoid it, or, in other words, 
 there should be a clear and manifest repugnance between 
 them to justify the courts to disregard the general rule 
 which is respected and regarded by all civilized nations, 
 
 7 G. & J. 480 ; Means v. Hapgood, 36 Mass. 105 ; Greene v. M6wry, 2 
 Bailey, 163 ; West v. Tupper, 1 Bailey, 193 ; Ferguson v. Clifford, 37 
 N. H. 86; Livermore v. Jenckes, 21 How. 126; Born v. Shaw, 29 Penn. 
 288 ; Balto. & Ohio E. R. Co. v. Hoge, 34 Penn. 214 ; Chaffee v. Fourth 
 Nat'l Bank, 71 Me. 514 ; vide Woodward v. Gates, 9 Vt. 358 ; Fishborne 
 v. Kunhardt, 2 Spears, 556 ; Golden v. Cockril, 1 Kans. 259 ; Ingraham 
 v. Geyer, 13 Mass. 146 ; Fox v. Adams, 5 Me. 245 ; The Watchman, 
 1 Ware, 232. 
 
 1 Atwoodv. Protection Ins. Co., 14 Conn. 555 ; Sanderson v. Bradford, 
 10 N. H. 260 ; Caskie v. Webster, 2 Wall. Jr. 131 ; Walters v. Whitlock, 
 9 Fla. 86. 
 
 8 Zipcey v. Thompson, 67 Mass. 243; Ingraham v. Geyer, 13 Mass. 
 146 ; Fall River Ironworks Co. v. Croade, 32 Mass. 11 ; Boyd v. Rock- 
 port Mills, 73 Mass. 406 ; Varnum v. Camp, 13 N. J. 326 ; Richmond- 
 ville Manuf. Co. v. Pratt, 9 Conn. 487 ; Bryan v. Brisbin, 26 Mo. 423 ; 
 Beirne v. Patton, 17 La. 589 ; Strieker v. Tinkham, 35 Geo. 176 ; Guil- 
 lander v. Howell, 35 N. Y. 657 ; Hanford v. Paine, 32 Vt. 442 ; Ramsey 
 v. Stevenson, 5 Martin, 23 ; Rice v. Curtis, 32 Vt. 460. 
 
514 INTERNATIONAL LAW. 
 
 upon the principles of comity. The peace and harmony 
 among States and nafions, 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, 2 and all others except the citizens of the State 
 for whose protection the laws were passed. 3 Citizens of 
 such State who purchase claims after the transfer have 
 only such rights as their vendor had. 4 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 every- 
 where. 5 
 
 Notice to Debtors. — 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 
 
 1 TJ. S. Bank v. Huth, 4 B. Mon. 423 ; Hanford v. Paine, 32 Vt. 442. 
 
 2 Benedict v. Parmenter, 78 Mass. 88 ; Whipple v. Thayer, 33 Mass. 
 25 ; Daniels v. Willard, 33 Mass. 36 ; Burlock v. Taylor, 33 Mass. 335 ; 
 Moore v. Bonnell, 31 N. J. 90 ; Mayherry v. Shister, 1 Harring. 349. 
 
 8 Todd v. Bucknam, 11 Me. 41 ; Sanderson v. Bradford, 10 N. H. 260 ; 
 Forbes v. Scannell, 13 Cal. 242 ; vide Brown v. Knox, 6 Mo. 302. 
 
 4 Bichardson v. Forepaugh, 73 Mass. 546 ; Hunt v. Lathrop, 7 R. I. 
 58; Todd v. Bucknam, 11 Me. 41. 
 
 6 Reidv. Gray, 37 Penn. 508; Newman v. Bagley, 33 Mass. 570; 
 Wales v. Alden, 39 Mass. 245 ; Means v. Hapgood, 36 Mass. 105 ; Jones 
 v. Taylor, 30 Vt. 42 ; Forbes v. Scannell, 13 Cal. 242 ; Goddard v. Win- 
 throp, 74 Mass. 180; Benedict v. Parmenter, 78 Mass. 88; Varnum v. 
 Camp, 13 N. J. 326 ; Ballard v. Winter, 40 Conn. 179 ; Thuret v. Jenkins, 
 7 Martin, 318 ; Cobb v. Buswell, 37 Vt. 337 ; Jones v. Taylor, 30 Vt. 42 ; 
 vide Skiff v. Solace, 23 Vt. 279 ; Montgomery v. Wright, 8 Mich. 143 ; 
 M'Kaig v. Jones, 6 Penn. 425. 
 
INTERNATIONAL LAW. 515 
 
 against him, he will be discharged from the debt. Notice 
 after attachment and prior to a recovery is sufficient. 1 
 
 Presumption of Foreign Law. — When there is no 
 evidence of what the foreign law is, it will be assumed to 
 be the same as that which governs the tribunal where the 
 question arises. 2 
 
 1 Mowry v. Crocker, 6 Wis. 326 ; Noble v. Smith, 6 R. I. 446 ; Martin 
 v. Potter, 77 Mass. 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. 
 
 8 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, 44 N. Y. 298; Ferguson v. 
 Clifford, 37 N. H. 86. 
 
CHAPTER XX. 
 
 executions, judgments and attachments. 
 
 Diverting Execution from Legitimate Purpose. — 
 The statute avoids all executions issued or kept on foot 
 with intent to delay, hinder, or defraud creditors. 1 The 
 intent may be inferred from circumstances, and if it is 
 established the execution loses its preference. The end 
 and object of an execution 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 execu- 
 tion from its legitimate purpose renders it void against 
 other creditors, and deprives him of his right to priority. 2 
 It is a creature of the law prepared as a means of enfor- 
 cing payment, and an attempt to use it as a means of 
 merely obtaining a security diverts it from its purpose, 
 and strips it of the incidents which the law attaches to it 
 when it is used legitimately. 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 requires is that a man, without meaning to 
 get payment himself, shall not hinder others from getting 
 their money. 3 Consequently, after he has sued out an 
 
 1 Snyder v. Kunkleman, 3 Penna. 487; Burnell v. Johnson, 9 Johns. 
 243 ; Howell v. Alkyn, 2 Eawle, 282. 
 a Berry v. Smith, 3 Wash. C. C. 60. 
 3 Smith's Appeal, 2 Penn. 331 ; Brown's Appeal, 26 Penn. 490. 
 
EXECUTIONS, JUDGMENTS AND ATTACHMENTS. 517 
 
 execution, he is bound to be both prompt and honest in 
 the steps he takes to enforce it. 
 
 Instructions to Delay. — The delivery of an execu- 
 tion to a sheriff with instructions to do nothing under it 
 is no delivery, and confers no privilege upon the creditor. 
 If the creditor instructs the sheriff to make no seizure or 
 levy until he gives him further orders, or until a distant 
 day, and in the meantime another execution comes to the 
 sheriff with orders to proceed, the second writ will in law 
 be deemed the first in order. 1 Such an instruction is 
 inconsistent with an intent to pursue the execution with 
 due diligence. Hence there is no distinction between an 
 instruction to delay for one day and an instruction to delay 
 for one or more months or for an indefinite time. 2 It is 
 the interference on the part of the creditor and not the 
 length of the delay that divests the execution of its 
 priority. The fact that the prior execution was intended 
 to be enforced is immaterial. 3 A direction to the sheriff 
 not to proceed to a sale unless urged on by younger exe- 
 
 1 Cook v. Wood, 16 ST. J. 254 ; Knower v. Barnard, 5 Hill-, 377 ; 
 Patton v. Hayter, 15 Ala. 18 ; Wood v. Gary, 5 Ala. 43 ; Branch Bank v. 
 Kobinson, 5 Ala. 623 ; Porter v. Cocke, Peck, 30 ; Freeburger's Appeal, 
 40 Penn. 244 ; Wise v. Darby, 9 Mo. 130 ; Field v. Liverman, 17 Mo. 218 ; 
 Kempland v. Macauley, Peake's N. P. C. 65 ; Bradley v. Wyndham, 1 
 Wils. 44 ; Hickman v. Caldwell, 4 Bawle, 376 ; Smallcomb v. Bucking- 
 ham, 5 Mod. 375 ; s. c. 1 Salk. 320 ; S. c. 1 Ld. Eaym. 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. 237 ; Michie v. Planters' 
 Bank, 7 Miss. 130 ; Kauffelt's Appeal, 9 Watts, 334 ; Boss v. Weber, 26 
 111. 221 ; Stern's Appeal, 64 Penn. 447 ; Truitt v. Ludwig, 25 Penn. 145 ; 
 Johnson v. Williams, 8 Ala. 529 ; Palmer v. Clarke, '2 Dev. 354 ; M'Clure 
 v. Ege, 7 Watts, 74 ; Mentz v. Haman, 5 Whart. 150 ; vide Snipes v. 
 Sheriff, 1 Bay. 295 ; Greenwood v. Naylor, 1 McC. 414 ; Stirling v. Van 
 Cleve, 12 jST. J. 285 ; Swigert v. Thomas, 7 Dana, 220. 
 
 2 Berry v. Smith, 3 Wash. C. C. 60. 
 
 3 Hunt v. Hooper, 12 M. & W. 664. 
 
518 EXECUTIONS, JUDGMENTS AND ATTACHMENTS. 
 
 cutions will likewise render an execution void. 1 The act 
 of the officer must concur with the direction of the creditor 
 in order to defeat the prior lien; therefore a direction 
 without a delay and a delay without direction are equally 
 ineffectual. A direction to delay, provided that a prior 
 execution is paid off, will not postpone an execution if 
 such prior execution is not paid off, for the contingency 
 upon which the direction depended does not occur. 2 A 
 positive and absolute direction to stay proceedings under 
 an execution will not postpone in favor of a junior execu- 
 tion when there is in fact no delay, for the elements of 
 fraud are wanting. 3 A direction after a levy has the 
 same effect as a direction made before a levy. 4 If a 
 countermand is given before the issuing of a second execu- 
 tion, the efficacy of the first execution will be restored. 5 
 When the direction is merely to delay for a stipulated 
 time, the execution will be good after the expiration of 
 that time. 6 A second execution will not be affected by 
 the delay under a prior execution upon the same judgment. 7 
 
 Mere Neglect of Sheriff. — Mere delay on the part of 
 the sheriff to make a levy will not postpone a prior to a 
 junior execution, 8 but it always raises a suspicion that an 
 
 1 Pringle v. Isaacs, 11 Price, 445 ; Weir v. Hale, 3 W. & S. 285 ; Free- 
 burger's Appeal, 40 Perm. 244 ; Kimball v. Munger, 2 Hill, 364 ; Lan- 
 caster Savings Inst. v. Wiegand, 3 Penn. L. J. 523 ; vide Houston v. 
 Sutton, 3 Harring. 37 ; Cumberland Bank v. Hann, 19 N. J. 166 ; Stirling 
 v. Van Cleve, 12 N. J. 285. 
 
 * Lancaster Savings Inst. v. Wiegand, 3 Penn. L. J. 523. 
 
 8 Lancaster Savings Inst. v. Wiegand, 3 Penn. L. J. 523. 
 
 4 Branch Bank v. Broughton, 15 Ala. 127. 
 
 6 Berry v. Smith, 3 Wash. C. C. 60; Carter v. Sheriff, 1 Hawks, 483. 
 
 6 Benjamin v. Smith, 4 Wend. 332. 
 
 7 Stirling v. Van Cleve, 12 N. J. 285 ; Eoberts v. Oldham, 63 5T. C. 
 267. 8 Brown's Appeal, 26 Penn. 490. 
 
EXECUTIONS, JUDGMENTS AND ATTACHMENTS. 519 
 
 execution is set on foot to protect the property from other 
 creditors. 1 
 
 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 con- 
 sider the debtor as the sheriff's agent or bailiff. 3 If there 
 is no intent to postpone the sale and the parties act in 
 good faith, the creditor may also consent that the goods 
 shall be left in the debtor's possession. 3 The debtor, how- 
 ever, can not be permitted to sell or consume the property 
 for his own benefit after the levy. 4 It has also been held 
 
 1 Lovick v. Crowder, 2 Man. & Ry. 84 ; s. c. 8 B. & C. 132 ; West v. 
 Skip, 1 Ves. Sr. 239. 
 
 a Cumberland Bank v. Hann, 19 N. J. 166 ; Thompson v. Van Vech- 
 ten, 5 Abb. Pr. 458; s. c. 6 Bosw. 373; s. c. 27 N. Y. 568 ; Eberle v. 
 Mayer, 1 Rawle, 366 ; Levy v. Wallis, 4 Dall. 167 ; Chancellor v. Phillips, 
 4 Dall. 213 ; Casher v. Peterson, 4 N. J. 317 ; Sterling v. Van Cleve, 12 
 N. J. 285 ; Cox v. Jackson, 1 Hayw. 422 ; Howell v. Alkyn, 2 Rawle, 
 282 ; Corlies v. Stanbridge, 5 Rawle, 286. Contra, Dutertre v. Driart, 7 
 Cal. 549 ; Zug v. Laughlin, 23 Ind. 170 ; Roberts v. Scales, 1 Ired. 88 ; 
 Wilson v. Hensley, 4 Ired. 66 ; Barham v. Massey, 5 Ired. 192 ; Border 
 v. Benze, 12 Iowa, 330 ; Tucker v. Bond, 23 Ark. 268. 
 
 3 Doty v. Turner, 8 Johns. 20 ; Rew v. Barber, 3 Cow. 272 ; Russell v. 
 Gibbs, 5 Cow. 390; Cumberland Bank v. Hann, 19 N. J. 166 ; Sterling v. 
 Van Cleve, 12 N. J. 285; Howell v. Alkyn, 2 Rawle, 282; Cox v. 
 M'Dougal, 2 Yeates, 434; Perit v. Webster, 2 Yeates, 524; Keyser's 
 Appeal, 13 Penn. 409. Contra, Bucknal v. Roiston, Prec. Ch. 285 ; Com- 
 monwealth v. Stremback, 3 Rawle, 341 ; Berry v. Smith, 3 Wash. C. C. 
 60 ; Lewis v. Smith, 2 S. & R. 142 ; Parker v. Waugh, 34 Mo. 340. 
 
 4 Matthews v. Warne, 11 1ST. J. 295 ; Williamson v. Johnston, 12 N. J. 
 86; Barnes v. Billington, 1 Wash. C. C. 29; Farrington v. Sinclair, 15 
 Johns. 428 ; Knox v. 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, 16 N. J. 254 ; Cumberland Bank v. Hann, 19 N. J. 
 166; Bingham v. Young, 10 Penn. 395; vide Bernard v. Mosely, 3 Fla. 
 322. 
 
520 EXECUTIONS, JUDGMENTS AND ATTACHMENTS. 
 
 that he can not even be allowed to sell at private sale for 
 the purpose of raising money to satisfy the execution. 1 
 
 Delay in Selling. — 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 time is 
 unreasonably long, the execution will be void. 3 A mere 
 adjournment of a sale for a definite period to some time 
 before the return day of the writ does not amount to a 
 waiver, 4 especially when it is done for the purpose of 
 investigating a claim to the property which is brought 
 forward on the day appointed for the sale. 5 But a direc- 
 tion to postpone the sale for an indefinite period, except in 
 the case of growing crops or other articles of that kind, 
 will divest the lien. 6 A sale of wheat growing in the 
 
 1 Pary's Appeal, 41 Penn. 273 ; Keyser's Appeal, 13 Penn. 409 ; Truitt 
 v. Ludwig, 25 Penn. 145 ; Davidson v. Waldron, 31 111. 120 ; Kirkpatrick 
 v. Oason, 30 N. J. 331 ; M'Clure v. Ege, 7 Watts, 74 ; Guardians v. Law- 
 rence, 4 Yeates, 194. 
 
 2 Russell v. Gibbs, 5 Cow. 390 ; Society v. Hitchcock, 98 Mass. 333 ; 
 Smith's Appeal, 2 Penn. 331 ; Cumberland Bank v. Hann, 19 N. J. 166 ; 
 Herkimer Co. Bank v. Brown, Hill, 232 ; Thompson v. Yan Veehten, 
 5 Abb. Pr. 458 ; s. c. 6 Bosw. 373 ; s. o. 27 N. T. 568 ; M'Coy v. Reed, 5 
 Watts, 300 ; Leach v. Williams, 8 Ala. 759 ; vide Weir v. Hale, 3 W. & S. 
 285. 
 
 3 Lovick v. Crowder, 8 B. & C. 132 ; s. 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 v. Hann, 19 N. J. 166 ; Berry v. Smith, 3 Wash. 
 C. C. 60 ; Deposit Bank v. Berry, 2 Bush, 236 ; Corlies v. Stanbridge, 5 
 Rawle, 286 ; Acton v. Knowles, 14 Ohio St. 18. 
 
 4 Paton v. Westervelt, 12 N. Y. Leg. Obs. 7 ; Lantz v. Worthington, 
 4 Penn. 153 ; Daney v. Hubbis, 71 N. C. 424. 
 
 5 Bushe's Appeal, 65 Penn. 363. 
 
 8 Branch Bank v. Broughton, 15 Ala. 127. Contra, Hickman v. Hick- 
 man, 3 Harring. 484. 
 
EXECUTIONS, JUDGMENTS AND ATTACHMENTS. 521 
 
 ground may be postponed until it is fit to be reaped. 1 
 When hides are in vats undergoing the process of tanning, 
 the sale may be postponed until the process is complete. 2 
 
 Land. — The distinction between liens in cases of real 
 estate and personalty is palpable and well defined. In 
 the one case the judgment confers the lien ; in the other 
 it arises out of the execution. In the case of real estate 
 there can be no hindrance from a delay to sell. A junior 
 judgment creditor can levy his execution and proceed to 
 sell lands at any time, the sale being subject to the prior 
 lien. A direction to delay either the levy or the sale will 
 not therefore divest the lien of the judgment in the case 
 of land. 3 
 
 Remedy against Judgment. — A fraudulent judgment 
 may be attacked collaterally, either at law or in equity, 
 for it is void as against creditors.* It may also be set 
 aside upon an application to the court that rendered it. 5 
 Such application can only be made by a judgment credi- 
 tor. 6 When it is made by a proper party the court may 
 direct an issue to try the question of fraud. 7 The issue 
 must be in regard to the alleged fraud and not in regard 
 
 1 Whipple v. Foot, 2 Johns. 418. 2 Power v. Van Buren, 7 Cow. 560. 
 - Ensworth v. King, 50 Mo. 477 ; Greene v. Allen, 2 Wash. C. C. 280 ; 
 Muir v. Leitch, 7 Barb. 341. 
 
 4 Imray v. Magnay, 11 M. & W. 267 ; Wilhelmi v. Leonard, 13 Iowa, 
 330 ; Gregg v. Bingham, lHill (S. C.) 299 ; Hammock v. McBride, 6 Geo. 
 178 ; Burns v. Morse, 6 Paige, 108 ; Hackett v. Manlove, 14 Cal. 85 ; 
 Mulford v. Stratton, 41 N.J. 466 ; Shallcross v. Deats, 43 N. J. 177; vide 
 Tyler v. Leeds, 2 Stark. 218. 
 
 5 Frasier v. Frasier, 9 Johns. 80 ; Austin v. Brown, 16 H". J. 268. 
 
 6 Wintringham v. Wintringham, 20 Johns. 296. 
 
 ' Whiting v. Johnston, 11 S. & R. 328 ; 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 ; Beards 
 v. Wheeler, 76 N. T. 213. 
 
522 EXECUTIONS, JUDGMENTS AND ATTACHMENTS. 
 
 to the amount due. 1 If the judgment is found to be fraud- 
 ulent it can not be vacated on the record, for it is good 
 between the parties. 2 The doctrine that a purchaser pen- 
 dente lite is bound by a judgment does not apply in favor 
 of a fraudulent judgment. 3 
 
 Eemedy against Execution. — A fraudulent execution, 
 or an execution issued upon a fraudulent judgment, may 
 be treated as null and void. 4 As the mandate of the writ 
 to the sheriff is to bring the money into court, the court 
 has jurisdiction to determine the priorities between con- 
 flicting executions, and may set aside an execution that is 
 fraudulent. 5 It may decide the question in a summary 
 way, 6 but if there is any doubt upon the question of fraud 
 it directs an issue to try it. 7 The sheriff is not bound to 
 try the question of fraud or to decide which of two credi- 
 tors should have the preference, but he ought to stand 
 indifferent between 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. 8 In an action against the 
 sheriff for making a false return, evidence of fraud in a 
 
 1 Numan v. Kapp, 5 Binn. 73. 
 
 2 Dougherty's Estate, 9 W. & S. 189 ; Thompson's Appeal, 57 Penn. 
 185. 
 
 3 Falconer v. Jones, 3 Dev. 334 ; Haywood v. Sledge, 3 Dev. 338. 
 4 Lovick v. Crowder, 8 B. & C. 132; s. o. 2 Man. & Ry. 84; Christo- 
 
 pherson v. Burton, 3 Exch. 1.60 ; s. C. 18 L. J. Exch. 60 ; Boardman v. 
 Keeler, 1 Aik. 158 ; Farrington v. Sinclair, 15 Johns. 428. 
 
 6 Posey v. Underwood, 1 Hill, 262 ; Sutton v. Pettus, 4 Rich. 163 ; 
 Lovick v. Crowder, 2 Man. & Ry. 84 ; s. c. 8 B. & C. 132 ; Warmoll v. 
 Young, 5 B. & C. 660 ; s. o. 8 D. & R. 442 ; Williamson v Johnston, 12 
 1ST. J. Eq. 86. 6 Williamson v. Johnston, 12 N. J. Eq. 86. 
 
 1 Barber v. Mitchell, 2 Dowl. P. C. 574; Matthews v. Warne, 11 N.J. 
 295 ; Williamson v. Johnston, 12 1ST. J. Eq. 86. 
 
 8 Warmoll v. Young, 5 B. & C. 660 ; s. 0. 8 D. & R. 442. 
 
EXECUTIONS, JUDGMENTS AND ATTACHMENTS. 523 
 
 prior judgment or execution is admissible, when he has 
 notice of the fraud or could have discovered it by reason- 
 able diligence. 1 Notice to the deputy is notice to the 
 sheriff himself. 3 
 
 Attachments. — There must be an actual seizure to 
 constitute a valid attachment, and the property must not 
 be left under the control of the debtor. 3 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. 4 An actual removal is not 
 indispensable. The debtor may, with the permission of 
 the sheriff, be allowed to use such articles as will not be 
 injured by the use. 5 Such use, however, is a badge of 
 fraud. 6 Delay in enforcing an attachment is also evidence 
 of fraud. 7 A prior attachment may be set aside for fraud 
 upon the motion of a subsequent attaching creditor. 8 
 
 1 Imray v. Magnay, 11 M. & W. 267 ; Christopherson v. Burton, 3 
 Exch. 160 ; s. c. 18 L. J. Exch. 60 ; Fairfield v. Baldwin, 29 Mass. 388 ; 
 Warmoll v. Young, 5 B. & C. 660 ; s. c. 8 D. & R. 442 ; vide Kempland 
 v. Macaulay, Peake, 65. 2 Imray v. Magnay, 11 M. & W. 267. 
 
 3 Baldwin v. Jackson, 12 Mass. 131. 
 
 4 Mills v. Camp, 14 Conn. 219; Hemmenway v. Wheeler, 31 Mass. 
 408. 
 
 5 Baldwin v. Jackson, 12 Mass. 131 ; Train v. Wellington, 12 Mass. 
 495. - Burrows v. Stoddard, 3 Conn. 160. 
 
 ' Beed 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 Whip- 
 ple v. Cass, 8 Iowa, 126. 
 
CHAPTER XXI. 
 
 EXECUTORS DE SON TORT. 
 
 When Grantee Is. — When the grantee retains, 1 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, 3 and if the 
 rightful executor is also a creditor, he may sue the exe- 
 cutor de son tort and recover his debt, and the fact that 
 he is rightful executor will not obstruct his action. 4 
 
 1 Howland v. Dews, R. M. Charlt. 383. 
 
 2 Rol. Abr. 549, 13 H. 4 f. 4, pi. 9 ; Stokes' Case, 3 Leon, 57 ; Stam- 
 ford's Case, 1 Dall. 94 ; s. c. 2 Leon. 223 ; Kitchin v. Dixon, Gouldsb. 
 116, pi. 12 ; Edwards v. Harben, 2 T. R. 587 ; Dorsey v. Smithson, 6 H. 
 & J. 61 ; Tardley v. Arnold, 1 Car. & M. 434 ; Sturdivant v. Davis, 9 Ired. 
 365 ; Allen v. Kimball, 15 Me. 116 ; Crunkleton v. Wilson, 1 Browne, 
 361 ; Densler v. Edwards, 5 Ala. 31 ; Wilcox v. Watson, Cro. Eliz. 405 ; 
 Clayton v. Tucker, 20 Geo. 452 ; Howland v. Dews, R. M. Charlt. 383 ; 
 Warren v. Hall, 6 Dana, 450 ; vide King v. Lyman, 1 Root, 104. 
 
 8 Dorsey v. Smithson, 6 H. & J. 61 ; Poster v. Wallace, 2 Mo. 231 ; 
 Chamberlayne v. Temple, 2 Rand. 384 ; Howland v. Dews, R. M. Charlt. 
 383. 
 
 4 Dorsey v. Smithson, 6 H. & J. 61 ; Shields v. Anderson, 2 Leigh, 
 729 ; Osborne v. Moss, 7 Johns. 161. 
 
EXECUTORS DE SON TORT. 525 
 
 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. 1 It has also been held that he cannot be so 
 charged when the property has been sold before the 
 decease of the debtor, although he retains the proceeds. 2 
 He is as responsible when he applies the property to his 
 own use as if he applies it to other uses not sanctioned by 
 law. 3 
 
 How Sued. — An executor de son tort may be sued 
 wherever he may be found without reference to the juris- 
 diction in which the intermeddling with the property 
 took place. A person who takes the property of the 
 decedent in one State and there sells it without ■ legal 
 authority, and removes to another without having dis- 
 bursed the proceeds in payment of debts or otherwise 
 legally accounted for them, may be charged as executor 
 de son tort in the latter State. 4 An executor de son tort 
 is, in most respects, considered and treated as executor, 
 and all lawful acts which he does or payments which he 
 makes in a due course of administration 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 prqpriis. 6 He can 
 
 1 King v. Lyman, 1 Root, 104. 8 Morrill v. Morrill, 13 Me. 415. 
 
 8 Stephens v. Barnett, 7 Dana, 257. "Densler v. Edwards, 5 Ala. 31. 
 6 Howland v. Dews, R. M. Charlt. 383 ; Stephens v. Barnett, 7 Dana, 
 257. 
 
526 EXECUTORS DE SON TORT. 
 
 not, however, derive any benefit from his wrongful act, 
 and consequently can not retain for his debt. 1 
 
 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, 2 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 con- 
 sidered as holding it either as heir or executor de son tort? 
 When the grantee is also devisee the property may be 
 considered as assets by devise. 4 If the grantee is also 
 executor the property is assets in his hands. 5 Property 
 fraudulently conveyed is a part of the deceased debtor's 
 estate, 6 and constitutes legal and not equitable assets. 7 
 When the grantee is neither heir nor devisee, nor personal 
 representative, the only remedy of the creditor is against 
 the thing granted or the grantee. 8 
 
 1 Shields v. Anderson, 3 Leigh, 729. 
 
 2 Humberton v. Howgill, Hob. 72 ; O'Connor v. Bernard, 2 Jones, 654; 
 Harrison v. Campbell, 6 Dana, 263. 
 
 3 Warren v. Hall, 6 Dana, 450. 
 
 4 Manhattan Co. v. Osgood, 15 Johns. 162 ; s. c. 3 Cow. 612. 
 
 6 Burckmyers v. Mairs, Riley, 208 ; Marr v. Rucker, 1 Humph. 348 ; 
 Jackson v. Bouley, 1 Car. & M. 97 ; vide Backhouse v. Jett, 1 Brock. 500. 
 8 Anon. 2 Bol. Rep. 173. ' Shee v. French, 3 Drew, 716. 
 
 8 Ralls v. Graham, 4 Mon. 120 ; Harrison v. Campbell, 6 Dana, 263. 
 
CHAPTER XXII. 
 
 REMEDIES. 
 
 No Injunction to Prevent Sale. — It is only by the 
 acquisition of a lien " that a creditor has any vested or 
 specified right in the property of his debtor j Before such 
 lien is acquired the debtor has full dominion over his 
 property. j He, may convert one species of property into 
 another, and he may alienate to a purchaser. The rights 
 of the debtor and those of the creditors 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 creditor without such lien can not 
 obtain an injunction to prevent the debtor from disposing 
 of his property, although he has reason to apprehend that 
 such disposition may be fraudulent. 1 
 
 Actions against Grantee. — If a fraudulent disposi- 
 tion has actually been made by the debtor of his property, 
 a creditor can not, in the absence of special legislation, 
 
 ' Uhl v. Dillon, 10 Md. 500; Rich v. Levy, 16 Md. 74; Hubbard v. 
 Hubbard, 14 Md. 356 ; Moran v. Dawes, Hopk. 365 ; Wiggans v. Arm- 
 strong, 2 Johns. Ch. 144; Brooks v. Stone, 11 Abb. Pr. 220; s. c. 19 
 How. Pr. 395 ; Cottrell v. Moody, 12 B. Mon. 500 ; Shufeldt v. Boehm, 
 96 111. 560 ; Phelps v. Poster, 18 111. 309 ; Buchanan v. Marsh, 17 Iowa, 
 494 ; vide Bowen v. Hoskins, 45 Miss. 183 ; Oberholser v. Greenfield, 47 
 Geo. 330 ; Hart v. Hart, 52 Geo. 376 ; Cubbedge v. Adams, 42 Geo. 124 ; 
 Dortic v. Dugas, 52 Geo. 231 ; Moore v. Kidder, 55 N. H. 488 ; Smith v. 
 Farnum, 56 Geo. 144; Mayer v. Wood, 56 Geo. 427; Crawford v. 
 Spuing, 56 Geo. 611. 
 
 34 
 
528 REMEDIES. 
 
 bring an action in assumpsit, 1 or on the case, 2 against those 
 who combined and colluded with him. Assumpsit will 
 not lie, for there is neither an express 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 intent to avoid the payment of his , 
 demand, and that he had no other means of obtaining pay- 
 ment. Upon such proof he would not be entitled to 
 recover the amount of his debt, for that would still be 
 subsisting and might yet be collected. Nor would he be 
 entitled to recover 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 obtain- 
 ing 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 secure 
 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 his damages could be 
 
 1 Aspinwall v. Jones, 17 Mo. 209 ; Kelsey v. Murphy, 26 Penn. 78. 
 
 " Adler v. Fenton, 24 How. 407 ; Lamb v. Stone, 28 Mass. 527 ; Wel- 
 lington v. Small, 57 Mass. 145 ; Smith v. Blake, 1 Day, 258 ; Green v. 
 Kimble, 6 Blackf. 552 ; Gardiner v. Sherrod, 2 Hawks, 173 ; Moody v. 
 Burton, 27 Me. 427 ; Mowry v. Schroder, 4 Strobh. 69 ; Austin v. Bar- 
 rows, 41 Conn. 287. Contra, Penrod v. Morrison, 2 Penna. 126 ; Mott v. 
 Danforth, 6 Watts, 304 ; Meredith v. Benning, 1 H. & M. 585 ; Hopkins 
 v. Beebe, 26 Penn. 85 ; Kelsey v. Murphy, 26 Penn. 78. 
 
REMEDIES. 529 
 
 estimated. 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 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. 1 
 
 Change of Remedy. — When the debtor institutes pro- 
 ceedings to reach the property fraudulently conveyed, 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 pro- 
 perty has been created. 2 
 
 Actions at Law. — A fraudulent transfer is void at law 
 as well as in equity. It is treated as a nullity every- 
 where, and a court of law takes cognizance of the fraud as 
 well as a court of equity. 3 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 attach- 
 ment suit. 4 In relation to real estate the question is 
 
 1 Smith v. Tonstall, Carthew, 3 ; Yates v. Joyce, 11 Johns. 136 ; 
 Adams v. Paige, 24 Mass. 542 ; Pickett v. Pickett, 2 Hill Ch. 470. 
 
 2 Blenkinsopp v. Blenkinsopp, 1 De G. M. & G. 495 ; s. C. 12 Beav. 
 568; s. c. 21 L. J. Ch. 401. 
 
 s Mulford v. Peterson, 35 N. J. 127. 
 
 4 Cooke v. Cooke, 43 Md. 522 ; Henry v. Murphy, 54 Ala. 246. 
 
530 REMEDIES. 
 
 usually tried in an action of ejectment by the purchaser 
 under the sheriff against the tenant in possession 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 pro- 
 perty fraudulently purchased in the name of another can 
 not be reached in an action at law. 1 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 with- 
 drawn from the forum which the creditor selects. 2 Fraud 
 may be given in evidence under a general issue which 
 raises the question of title to the property. 3 When a 
 bond of conveyance is fraudulent its validity can only be 
 tested by a sale and not by an attachment/ 
 
 Bill in Equity. — The remedy most frequently used 
 is a bill in equity, because a court of equity sifts the con- 
 science of the parties and removes the cloud from the title. 
 Fraud constitutes the most ancient foundation of its juris- 
 
 1 Howe v. Bishop, 44 Mass. 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. Paris, 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. Polsom, 58 Me. 230 ; Hamil- 
 ton v. Cone, 19 Mass. 478 ; Carlisle v. Tindall, 49 Miss. 229 ; Haggerty v. 
 Nixon, 26 N. J. Eq. 42. Contra, Guthrie v. Gardner, 19 Wend. 414; 
 Arnot v. Beadle, 1 Hill & D. 181 ; Tevis v. Doe, 3 Ind. 129 ; Pennington 
 v. Clifton, 11 Ind. 162 ; Kimmel v. M'Right, 2 Penn. 38 ; Coleman v. 
 Cocke, 6 Rand. 618 ; Cecil Bank v. Snively, 23 Md. 253 ; Cutter v. Gris- 
 wold, Walk. Ch. 437 ; Roe v. Irwin, 32 Geo. 39 ; Godding v. Brackett, 34 
 Me. 27 ; Hunt v. Blodgett, 17 111. 583. 
 
 'Marriott v. Givens, 8 Ala. 694; Winch's Appeal, 61 Penn. 424; 
 Pellows v. Lewis, 65 Ala. 343 ; Blake v. Hubbard, 45 Mich. 1. 
 
 8 Gooch's Case, 5 Co. 60 ; Ashby v. Minnitt, 8 A. & E. 121 ; Strohm 
 v. Hayes, 70 111. 41 ; Chamberlain v. Stern, 11 Nev. 268. 
 
 4 Stewart v. Coder, 11 Penn. 90. 
 
REMEDIES. 531 
 
 diction, 1 and is a sufficient ground for its interposition. It 
 may grEtnt relief although there is ample remedy at law, 
 for no relief is adequate except that which removes the 
 fraudulent title. 2 The relief in equity is different and 
 may be more 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 peculiar jurisdiction, or because that court proceeds 
 upon an interpretation of the statute distinct and different 
 from that given at law. 3 On the contrary, it is enter- 
 tained in equity notwithstanding it exists at law, and thus 
 entertained because such deceitful practices, dishonest in 
 their concoction, progress, and consummation, are so ab- 
 horrent to every tribunal of justice, that every tribunal 
 has authority and is bound to relieve against them accord- 
 ing to its respective capacities and methods of proceed- 
 ing, and because the relief peculiar to a court of equity is 
 more perfect than at law. 4 
 
 When no Remedy at Law. — There are some cases 
 where a remedy will be given in equity even though 
 
 1 Hungerford v. Earle, 2 Vern. 261 ; Hartshorne v. Eames, 31 Me. 93 
 Lillard v. M'Gee, 4 Bibb, 165. 
 
 2 Tappen v. Evans, 11 N. H. 311 ; Bennett v. Musgrove, 2 Ves. Sr. 51 
 Dodge v. Griswold, 8 ST. H. 425 ; Blenkinsopp v. Blenkinsopp, 1 Be G. M. 
 & G. 495 ; s. c. 12 Beav. 568 ; 21 L. J. Ch. 401 ; Sheafe v. Sheafe, 40 N. H 
 516 ; Jones v. Henry, 3 Litt. 427 ; Mountford v. Taylor, 6 Ves. 788 
 Lewkner v. Freeman, 2 Freem. 236 ; s. c. Prec. Ch. 105 ; Eq. Cas. Abr 
 149 ; Planters' Bank v. Walker, 7 Ala. 926 ; Sheppard v. Iverson, 12 Ala 
 97 ; Traip v. Gould, 15 Me. 82 ; Bean v. Smith, 2 Mason, 252 ; Lillard v 
 M'Gee, 4 Bibb, 165 ; Buck v. Sherman, 2 Doug. 176 ; Fowler v. McCart- 
 ney, 27 Miss. 509; Cook v. Johnson, 12 N. J. Eq. 51; Musselman v. 
 Kent, 33 Ind. 452; Cox v. Dunham, 8 N. J. Eq. 594; Swift v. Avents, 4 
 Cal. 390; Brandon v. Gowring, 6 Rich. Eq. 5; Abbey v. Commercial 
 Bank, 31 Miss. 434 ; Phillips v. Wesson, 16 Geo. 137 ; Hamlen v. McGil- 
 licuddy, 62 Me. 268 ; Scott v. Ind. Wagon Works, 48 Ind. 75 ; Gormley 
 v. Potter, 29 Ohio St. 597. 8 Russell v. Hammond, 1 Atk. 13. 
 
 "Dobson v. Erwin, 1 Dev. & Bat. 569 ; s. C. 4 Dev. & Bat. 201. 
 
532 REMEDIES. 
 
 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 pro- 
 perty to their demands. 1 A court of equity will also 
 afford a remedy against choses i/n 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 relation of debtor and 
 creditor, and has no foundation in just reasoning. It 
 makes the rights of the creditors depend 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 as in 
 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 
 
 1 Godbold v. Lambert, 8 Rich. Eq. 155 ; Odenheimer v. Hansom, 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. Wheaton, 
 8 Me. 373 ; Smith v. Parker, 41 Me. 452 ; Bertrand v. Elder, 23 Ark. 494 ; 
 Corey v. Greene, 51 Me. 114 ; Marshall v. Marshall, 2 Bush. 415 ; Brown 
 v. McDonald, 1 Hill Ch. 297 ; Halbert v. Grant, 4 Mon. 580 ; Dockray v. 
 Mason, 48 Me. 178; Bay v. Cook, 31 111. 336 ; Belford v. Crane, 16 N. J. 
 Eq. 265 ; Peay v. Sublet, l'Mo. 449 ; Newell v. Morgan, 2 Harring. 225 ; 
 2 Del. Ch. 20 ; Demaree v. Driskell, 3 Blackf. 115 ; McDowell v. Cochran, 
 11 111. 31 ; Walcbtt v. Almy, 6 McLean, 23 ; Gentry v. Harper, 2 Jones 
 Eq. 177 ; Rucker v. Abell, 8 B. Mon. 566 ; Gordon v. Lowell, 21 Me. 251. 
 
REMEDIES. 533 
 
 his property 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. 1 A court of equity, therefore, for the 
 purpose of enforcing justice, holds the fraudulent grantee 
 as the trustee of those whom he defrauds, and takes juris- 
 diction to administer this trust. 2 Wherever choses m 
 action or other property of a similar character are liable 
 to execution or attachment, the jurisdiction of a court of 
 equity is unquestionable. 3 
 
 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 
 
 1 Wright v. Petrie, 1 S. & M. Ch. 282 ; Green v. Tantum, 19 N. J. Eq. 
 105 ; s. c. 21 N. J. Eq. 364 ; Alexander v. Tarns, 13 111. 221 ; Oderiheimer 
 v. Hansom, 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, 39 Miss. 655 ; Partridge v. Gopp, Ambl. 
 596 ; s. c. 1 Eden, 163 ; Hadden v. Spader, 5 Johns. Ch. 280 ; S. 0. 20 
 Johns. 554 ; Hartshorne v. Eames, 31 Me. 93 ; West v. Saunders, 1 A. K. 
 Marsh. 108 ; Bean v. Smith, 2 Mason, 252 ; Harlan v. Barnes, 5 Dana, 
 219 ; Bay State Iron Co. v. Goodall, 39 N. H. 223 ; 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. Salmond, 27 Me. 539 ; Greer v. 
 Wright, 6 Gratt. 154 ; Manchester v. McKee, 4 Gilman, 511. Contra, 
 Dundas v. Dutens, 1 Ves. Jr. 196 ; s. O. 2 Cox, 235 ; Eider v. Kidder, 10 
 Ves. 360 ; S. c. 12 Ves. 202 ; s. o. 13 Yes. 123 ; Matthews v. Peaver, 1 
 Cox, 278 ; Grogan v. Cooke, 2 Ball. & B. 233 ; Sims v. Thomas, 12 A. & 
 E. 536 ; s. o. 4 P. & D. 233 ; s. c. 9 L. J. (N. S.) Q. B. 399 ; Norcut v. 
 Dodd, 1 Cr. & Ph. 100 ; Duffln v. Furness, Sel. Cas. Ch. 77 ; Caillaud v. 
 Estwick, 1 Anst. 381 ; Stewart v. English, 6 Ind. 176 ; Cosby v. Boss, 
 3 J. J. Marsh. 290 ; Winebrenner v. 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. 2 Bean v. Smith, 2 Mason, 252. 
 
 3 Patterson v. Campbell, 9 Ala. 933 ; Wright v. Petrie, 1 S. & M. Ch. 
 282. 
 
534 REMEDIES. 
 
 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 estab- 
 lish his demand at law, and obtain a lien upon the pro- 
 perty, before the transfer interferes with his rights or he 
 has any title to claim relief in equity. 1 No-- creditor can 
 
 1 Meux v. Anthony, 11 Ark. 411 ; Smith v. Hurst, 10 Hare, 30, s. C. 15 
 Eng. L. & Eq. 520 ; 17 Jur. 30 ; 22 L. J. Ch. (N. S.) 289 ; M'Kinley v. 
 Combs, 1 Mon. 105 ; Griffith v. Bank, 6 G. & J. 424; Day v. Washburn, 
 24 How. 352 ; Jones v. Green, 1 Wall. 330 ; Colman v. Croker, 1 Ves. 
 Jr. 160; Collins v. Burton, 4 De G. & J. 612; Angellv. Draper, 1 Vern. 
 399 ; Brinkerhoff v. Brown, 4 Johns. Ch. 671; s. c. 6 Johns. Ch. 139 ; 
 Webster^-. Clark, 25 Me. |13 ; Webster v. Withey, 25 Mass. 326 ; Cole- 
 man v. Cocke, 6 Band. 618 ; Halbert v. Grant, 4 Mon. 580 ; Carter v. Ben- 
 nett, 4 Fla. 283 ; Barrow v. Bailey, 5 Fla. 9 ; Hendricks v. Robinson, 2 
 Johns. Ch. 283 ; s. c. 17 Johns. 438 ; Beck v. Burdett, 1 Paige, 305 ; Jones 
 v. Green, 1 Wall. -330 ; Cropsey v. McKinney, 30 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 ; Greenwood v. Brodhead, 8 Barb. 593 ; Hall v. Joiner, 
 1 Rich. (N. S.) 186 ; Allen v. Camp, 1 Mon. 231 ; Horner v. Zimmer- 
 man, 45 111. 14 ; Stone v. Manning, 3 111. 530 ; Rhodes v. Cousins, 6 Rand. 
 188 ; Tate v. Liggatt, 2 Leigh, 84 ; Kelso v. Blackburn, 3 Leigh, 299 ; 
 Taylor v. Robinson, 89 Mass. 253 ; Ishmael v. Parker, 13 111. 324 ; Du- 
 berry v. Clifton, Cooke, 328 ; Lister v. Turner, 5 Hare, 281 ; Colman v. 
 Croker, 1 Ves. Jr. 160 ; Wheeler v. Taylor, 6 Ired. Eq. 225 ; Allen v. 
 Montgomery, 48 Miss. 101 ; Oberholser v. Greenfield, 47 Geo. 330; Cub- 
 bedge v. Adams, 42 Geo. 124; Edgar v. Clevenger, 3 N. J. Eq. 258; 
 Haggerty v. Nixon, 26 N. J. Eq. 42 ; Claflin v. French, 28 N. J. Eq. 383 ; 
 Fleming v. Grafton, 54 Miss. 79 ; Ferguson v. Bobo, 54 Miss. 121 ; 
 Coombe v. Meade, 2 Cranch C. C. 547 ; McConnel v. Dickson, 43 111. 99 ; 
 Bennett v. Stout, 98 111. 47 ; Stewart v. Fagan, 2 Woods, 215. 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 remedy at law. Reese River Mining Co. v. Atwell, L. R. 7 Eq. 347 ; 
 S. o. 20 L. T. (N. S.) 163. In the following States the right to file a bill 
 is given to a simple contract creditor by statute, viz. Maryland, Code, 
 Art. 16, sec. 35 ; Virginia, Code, ch. 179, sec. 2 ; West Virginia, Code, 
 ch. 133 ; Tennessee, Code, §§ 4288, 4289 ; Alabama, Revised Code, sec. 
 3446 ; vide Crompton v. Anthony, 95 Mass. 33. 
 
REMEDIES. 535 
 
 be said to be delayed, hindered or defrauded by any con- 
 veyance until some property out of which he has a specific 
 right to be satisfied is withdrawn from his reach by a 
 fraudulent conveyance. Such specific right does not exist 
 until he has bound the property by judgment, or by judg- 
 ment 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 specific 
 right to be satisfied out of the property conveyed, and 
 shows that he is a creditor, and is delayed, hindered and 
 defrauded by the conveyance. When a party has thus 
 brought himself within the terms of the statute, he is en- 
 titled to the assistance of a court of "equity to remove the 
 impediment to his legal rights. In this respect there is 
 no distinction between the creditors of an individual and 
 the creditors of a partnership. 1 
 
 What Liens Sufficient. — The claim for relief rests 
 upon the fact that the creditor has acquired a specific lien 
 upon the property, and that the obstruction interposed 
 prevents a sale at a fair valuation. The bill is filed to 
 remove the obstruction in order that the creditor 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 sufficient. 2 A judg- 
 
 1 Dunlevy v. Tallmadge, 32 N. Y. 457 ; s. c. 29 How. Pr. 397 ; s. c. 
 18 Abb. Pr. 48 ; Young v. Frier, 9 N. J. Eq. 465 ; vide Lawton v. Levy, 2 
 Edw. 197. 
 
 " Vasser v. Henderson, 40 Miss. 519; McCalmont v. Lawrence, 1 
 Blatch. 232 ; Gates v. Boomer, 17 Wis. 455 ; Cornell v. Radway, 22 Wis. 
 260 ; Mohawk Bank v. Atwater, 2 Paige, 54; Clarkson v. De Peystev, 3 
 Paige, 320; Shaw v. Dwight, 27 N. Y. 244; Dargan v. Waring, 11 Ala. 
 988 ; Newman v. Willetts, 52 111. 98 ; Weightman v. Hatch, 17 111. 281 ; 
 Baldwin v. Ryan, 3 T. & C. 251 ; Royer Wheel Co. v. Fielding, 61 How. 
 
536 REMEDIES. 
 
 ment which has been satisfied, 1 or which was rendered in 
 a cause where the debtor was never served with process 
 and never appeared, 3 is not sufficient. But if the judgment 
 is regular it is sufficient, although no execution can be 
 issued on it at law until it is revived by a scire facias. 3 
 An execution, however, must be issued in order to obtain 
 a lien on personal property. 4 If the execution is returned 
 the lien is lost and a bill cannot then be filed. 5 Another 
 execution, however, may be issued, and the lien thus ac- 
 quired will be sufficient to support a bill. 6 A lien by 
 attachment, 7 or judgment of condemnation in an attach- 
 ment, 8 or garnishment, 9 or warrant of distress, 10 is as good 
 
 Pr. 437 ; Buswell v. Lincke, 8 Daly, 518. In the following cases it has 
 been held that an execution must be issued : North American Ins. Co. v. 
 Graham, 5 Sandf. 197 ; McCullough v. Colby, 5 Bosw. 477 ; s. c. 4 Bosw. 
 603 ; Dana v. Haskill, 41 Me. 25 ; Wyman v. Fox, 59 Me. 100 ; Payne v. 
 Sheldon, 43 How. Pr. 1 ; s. c. 63 Barb. 169 ; Fox v. Moyer, 54 N.T. 125 ; 
 Hyde v. Chapman, 33 Wis. 391 ; Verner v. Downs, 13 S. C. 449. 
 
 ! Preston v. Turner, 36 Iowa, 671. 2 Tyler v. Peatt, 23 Mich. 63. 
 
 3 Postlewait v. Howes, 3 Iowa, 365 ; Hagan v. Walker, 14 How. 29. 
 
 4 Jones v. Green, 1 Wall. 330 ; Clark v. Banner, 1 Dev. & Bat. Eq. 
 608 ; Anon. Eq. Cas. Abr. 77, pi. 14 ; Thurmond v. Reese, 3 Geo. 449 ; 
 Stephens v.Beall, 4 Geo. 319; Heye v. Bolles, 33 How.Pr. 266; s. c. 2 
 Daly, 231 ; Carr v. Parker, 10 Mo. Ap. 364. 
 
 6 Forbes v. Logan, 4 Bosw. 475 ; Watrous v. Lathrop, 4 Sandf. 700 ; 
 Bassett v. St. Albans Hotel Co., 47 Vt. 313 ; Buswell v. Lincke, 8 Daly, 
 518 ; vide Williams v. Hubbard, Walk. Ch. 28. 
 
 6 Cuyler v. Moreland, 6 Paige, 273. 
 
 7 Hunt v. Field, 9 N. J. Eq. 36 ; Heyneman v. Dannenberg, 6 Cal. 
 376 ; Castle v. Bader, 23 Cal. 75 ; Dodge v. Griswold, 8 N. H. 425 ; Stone 
 v. Anderson, 26 1ST. H. 506 ; Heye v. Bolles, 33 How. Pr. 266 ; s. c. 2 
 Daly, 231 ; Falconer v. Freeman, 4 Sandf. Ch. 565 ; Scales v. Scott, 13 Cal. 
 76 ; Greenleaf v. Mumford, 19 Abb. Pr. 469 ; s. c. 30 How. Pr. 30 ; Wil- 
 liams v. Michenor, 11 N. J. Eq. 520 ; Robert v. Hodges, 16 N. J. Eq. 
 299 ; Tennent v. Butler, 18 Kans. 324 ; Joseph v. McGill, 52 Iowa, 127 ; 
 vide Martin v. Michael, 23 Mo. 50 ; Melville v. Brown, 16 N. J. 363 ; 
 Mills v. Block, 30 Barb. 549 ; McMinn v. Whelan, 27 Cal. 300. 
 
 8 Smith v. Muirhead, 34 N. J. Eq. 4. 
 
 'Mechanics' Bank v. Dakin, 51 N. Y. 519; s. o. 28 How. Pr. 502; s. 
 
REMEDIES. 537 
 
 as a lien by execution. A creditor who intervenes in an 
 attachment suit, claiming the benefit thereof where that 
 is allowed by law, has a sufficient lien. 1 A party to whom 
 a judgment is assigned after the issuing of an execution 
 need not have a new execution issued. 3 If the property 
 consists of both realty and personalty, he may have the 
 conveyance set aside as to the realty, although he did 
 have an execution issued so as to be entitled to have it set 
 aside as to the personalty. 3 Although a creditor did once 
 obtain a lien, yet, if the lien has since expired, he must 
 obtain a lien again before he can proceed in equity. 4 
 
 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 execution 
 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 return of an execu- 
 tion unsatisfied. The creditor must obtain judgment, issue 
 an execution, and procure a return of nulla bona before he 
 can file a bill in equity to obtain satisfaction out of the, 
 property of the debtor which cannot be reached at law; 5 
 
 C. 33 How. Pr. 316 ; s. c. 50 Barb. 587. Contra, Thurber v. Blanck, 50 
 N. Y. 80 ; Greenleaf v. Mumford, 19 Abb. Pr. 469 ; s. c. 30 How. Pr.. 30 ; 
 Bigelow v. Andress, 31 111. 322. 
 
 10 Allen v. Camp, 1 Mon. 231 ; vide Belknap v. Hastings, 1 Denio, 190. 
 
 1 Curry v. Glass, 25 N. J. Eq. 108. 
 
 2 Hastings v. Palmer, 1 Clarke, 52. 8 Buswell v. Lincke, 8 Daly, 518. 
 4 Partee v. Matthews, 53 Miss. 140; Fleming v. Grafton, 54 Miss. 79. 
 -Beck v. Burdett, 1 Paige, 305; Heacock v. Durand,*42 111. 230; 
 
 Clarkson v. De Peyster, 3 Paige, 320 ; Crippen v. Hudson, 13 N. Y. 161 ; 
 McElwain t. Willis, 9 Wend. 548 ; s. c. 3 Paige, 505 ; Taylor v. Persee, 
 
538 REMEDIES. 
 
 A return before the return day of the writ is sufficient if 
 the bill is not filed until after the return day. 1 Whether 
 a return before the return day is sufficient alone is a point 
 upon which the decisions vary. 2 But if an indorsement of 
 nulla bona is actually made on the execution, this may be 
 considered as sufficient although it is not filed. 3 If prop- 
 erty purchased in the name of another is not liable to an 
 execution at law, there must be a return of the execution. 4 
 
 Second Execution. — Where the right to file a bill to 
 reach property not liable to seizure at law once exists 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 fraudulently transferred 
 or encumbered for the purpose of protecting it from the 
 execution of the creditor, and has other property which 
 
 15 How. Pr. 417 ; Beach v. White, Walk. Ch. 495 ; Tappan v. Evans, 11 
 N. H. 311 ; Williams v. Hubbard, Walk. Ch. 28 ; Brown v. Bank, 31 Miss. 
 454 ; Chittenden v. Brewster, 2 Wall. 191 ; Jones v. Green, 1 Wall. 330 ; 
 Green v. Tantum, 19 N. J. Eq. 105 ; s. c. 21 N". J. Eq. 364 ; Griffin v. 
 Nitcher, 57 Me. 270 ; McCartney v. Bostwick, 31 Barb. 390 ; s. c. 32 1ST. Y. 
 53 ; Hamlen v. McGillicuddy, 62 Me. 268 ; Adsit v. Sanford, 30 N. Y. 
 Supr. 45 ; vide Postlewait v. Howes, 3 Iowa, 365 ; Gwyer v. Eiggins, 37 
 Iowa, 317 ; Miller y. Dayton, 47 Iowa, 312 ; Case v. Beauregard, 101 
 U. S. 688 ; Hibernia Ins. Co. v. St. L. & ST. Trans. Co., 10 Fed. Rep. 596. 
 * * Forbes v. Waller, 4 Bosw. 475 ; s. c. 25 N. Y. 430 ; s. c. 25 How. 
 Pr. 166 ; Reynaud v. O'Brien, 35 1ST. Y. 99 ; S. C. 25 How. Pr. 67 ; Suydam 
 v. Beals, 4 McLean, 12 ; Knauth v. Bassett, 34 Barb. 31. 
 
 2 Forbes v. Waller, 25 N. Y. 430 ; s. c. 4 Bosw. 475 ; s. c. 25 How. 
 Pr. 166 ; Bowen v. Parkhurst, 24 111. 257 ; vide Reynaud v. O'Brien, 25 
 How. Pr. 67 ; s. c. 35 N. Y. 99 ; Beach v. White, Walk. Ch. 495. 
 
 3 Ocean Nat'l Bank v. Olcott, 46 N. Y. 12 ; Lewis v. Lanphere, 79 
 111. 187. 
 
 4 Des Brisay v. Hogan, 53 Me. 554; Corey v. Greene, 51 Me. 114; 
 Ocean Nat'l Bank v. Olcott, 46 N. Y. 12 ; Tyler v. Peatt, 30 Mich. 63 ; 
 Haggerty v. Nixon, 26 N. J. Eq. 42 ; Call v. Perkins, 65 Me. 439. Contra, 
 McCartney v. Bostwick, 32 N. Y. 53 ; S. C. 31 Barb. 390 ; Wood v. Rob- 
 inson, 22 N. Y. 564. 
 
REMEDIES. 539 
 
 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 property which is subject to a sale 
 thereon, and may then file a bill for the double purpose of 
 removing the obstruction 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. 1 
 
 Kind or Judgments. — A bill may be filed to enforce a 
 decree in equity, 2 or a magistrate's judgment, 3 or a judg- 
 ment by confession, 4 as well as a regular judgment at law. 
 A judgment in an attachment suit when the debtor has 
 not been summoned, 5 or a foreign judgment, 6 or process 
 that is void, is not sufficient. 7 Where a judgment is 
 recovered against joint debtors upon service of process on 
 any number less than the whole, a bill can not be main- 
 tained to interfere with any disposition of the separate 
 property of those who have not been served, 8 but a trans- 
 
 1 Cuyler v. Moreland, 6 Paige, 273 ; Wright v. Petrie, 1 S. & M. Oh. 
 282. 
 
 2 Farnsworth v. Straster, 12 111. 482 ; Clarkson v. De Peyster, 3 Paige, 
 320 ; Weightman v. Hatch, 17 111. 281. 
 
 8 Bailey v. Burton, 8 Wend. 339 ; Crippen v. Hudson, 13 N. T. 161 ; 
 Harlan v. Barnes, 5 Dana, 219 ; Newdigate v. Lee, 9 Dana, 17 ; Ballen- 
 tine v. Beall, 4 111. 203 ; Henderson v. Brooks, 3 T. & C. 445. 
 
 4 Neusbaum v. Klein, 24 N. T. 325. 
 
 5 Manchester v. McKee, 9 111. 511 ; Getzler v. Saroni, 18 111. 511 ; 
 vide Bailey v. Burton, 8 Wend. 339. 
 
 e McCartney v. Bostwick, 31 Barb. 390; S. C. 32 N. Y. 53 ; Famed v. 
 Harris, 19 Miss. 366 ; Berryman v. Sullivan, 21 Miss. 65 ; Claflin v. 
 McDermott, 12 Fed. Bep. 375 ; Davis v. Bruns, 30 N. Y. Supr. 648 ; vide 
 Tarbell v. Griggs, 3 Paige, 207 ; Bullitt v. Taylor, 34 Miss. 708. 
 
 7 Guerin v. Hunt, 6 Minn. 375 ; S. o. 8 Minn. 477. 
 
 sBilhoferv. Heubach, 15 Abb. Pr. 143; Field v. Chapman, 15 Abb. 
 Pr. 434 ; s. C. 14 Abb. Pr. 133. 
 
540 REMEDIES. 
 
 fer of the joint property may be set aside. 1 In such case, 
 however, the persons who have not been served should 
 be made parties. 2 
 
 Equitable 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 instance. A 
 party who holds such a claim may, when he looks alto- 
 gether and exclusively to a court of equity and files a bill 
 to enforce his demand, add a prayer for an auxiliary 
 decree to remove obstructions fraudulently interposed to 
 defeat or embarrass the remedial action of the court. 3 
 
 When Debtor Dies. — 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 administrator 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, and not upon the judgment. 4 
 An action against his heirs would be equally nugatory, for 
 they are only liable to creditors to the extent of the 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 judgment would be in their favor. 5 A court of equity, 
 
 1 Bilhofer v. Heubach, 15 Abb. Pr. 143. 
 
 s Howard v. Sheldon, 11 Paige, 558. 
 
 8 Halbert v. Grant, 4 Mon. 580 ; Waller v. Todd, 3 Dana, 503 ; Shea 
 v. Knoxville & K. R. R. Co., 6 Baxter, 277; Swan v. Smith, 57 Miss. 
 548 ; Smith v. Rumsey, 33 Mich. 183 ; vide Williams v. Tipton, 5 Humph. 
 66 ; McDermott v. Blois, R. M. Charlt. 281. 
 
 'Loomis v. Tifft, 16 Barb. 541 ; Bireley v. Staley, 5 G. & J. 432. 
 
 6 Loomis v. Tifft, 16 Barb. 541. 
 
REMEDIES. 541 
 
 however, is authorized by the principles which regulate 
 its jurisdiction to interpose at whatever point in the pro- 
 gress of the legal remedy it may appear that the creditor 
 is actually obstructed by the fraudulent transfer or its con- 
 sequences. 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. 1 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 juris- 
 diction in equity. 2 If there is a judgment, no return of 
 nulla bona is necessary in such a case. 3 
 
 Executor de son Tort. — This is the reason why it is 
 not necessary in the case of personal property to bind it by 
 an action against the grantee as executor de son tort. All 
 
 1 Harrison v. Campbell, 6 Dana, 263 ; Bay v. Cook, 31 111. 336 ; Trippe 
 v. Ward, 2 Geo. 304; Lynch v. Raleigh, 3 Ind. 273 ; Hagan v. Walker, 
 14 How. 29 ; Frazer v. Western, 1 Barb. Ch. 220 ; s. c. 1 How. App. Cas. 
 448 ; Loomis v. Tifft, 16 Barb. 541 ; Steere v. Hoagland, 39 111. 264 ; Watts 
 v. Gale, 20 Ala. 817 ; Pharis v. Leachman, 20 Ala. 662 ; Bireley v. Staley, 
 5 G. & J. 432 ; Snodgrass v. Andrews, 30 Miss. 472 ; Winn v. Barnett, 31 
 Miss. 653 ; McDowell v. Cochran, 11 111. 31 ; O'Brien v. Coulter, 2 Blackf. 
 421 ; Merry v. Fremon, 44 Mo. 518 ; Chamberlayne v. Temple, 2 Rand. 
 384; Spicer v. Ayres, 2 T. & C. 626; Wright v. Campbell, 27 Ark. 
 637 ; White v. Russell, 79 111. 155 ; Haston v. Castner, 29 N. J. Eq. 
 536 ; Spencer v. Armstrong, 12 Heisk. 707 ; Shurts v. Howell, 30 N. J. 
 Eq. 418 ; Armstrong v. Croft, 3 Lea, 191 ; 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, 54 111. 236 ; Estes v. Wilson, 67 N. Y. 264 ; Allyn v. 
 Thurston, 53 N. Y. 622 ; Evans v. Hill, 25 ST. Y. Supr. 464. 
 
 2 Hagan t. Walker, 14 How. 29 ; Frazer v. Western, 1 Barb. Ch. 220 ; 
 s. O. 1 How. App. Cas. 448; Hampson v. Sumner, 18 Ohio, 444; Mc- 
 Naughtin v. Lamb, 2 Ind. 642; Snodgrass V.Andrews, 30 Miss. 472; 
 Pharis v. Leachman, 20 Ala. 662. 
 
 3 Postlewait v. Howes, 3 Iowa, 365. 
 
542 REMEDIES. 
 
 the creditors have a specific right to be satisfied 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 rightful executor or adminis- 
 trator and also an executor de son tort, out of the debtor's 
 property in the hands of the latter, if there are not suffi- 
 cient assets in the hands of the former. This is in the 
 nature of a lien, and the executor or administrator and 
 executor de son tort are in the nature of trustees for the 
 creditors. A creditor has a right, therefore, to go origin- 
 ally into a court of equity against the grantee as executor 
 de son tort for a discovery, 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 other- 
 wise, and so is hindered, delayed, and defrauded. 1 
 
 Proceedings against Estate. — A creditor of a de- 
 ceased debtor may file a bill against a fraudulent grantee 
 without first proceeding against the estate. 3 
 
 Administrator. — When an administrator has the right 
 to file a bill to set aside a fraudulent conveyance made by 
 the decedent, it is not necessary that there shall be a 
 judgment and execution as in the case of a creditor before 
 he can file a bill. 3 
 
 Non-Residents. — Whether judgment must be obtained 
 against a non-resident before a bill can be filed is a point 
 upon which the decisions vary. 4 
 
 1 Chamberlayne v. Temple, 2 Rand. 384. 
 
 8 Spencer v. Armstrong, 12 Heisk. 707 ; Armstrong v. Croft, 3 Lea. 
 191. s Barton v. Hosner, 31 ST. Y. Supr. 467. 
 
 4 Anderson v. Bradford, 5 J. J. Marsh. 69 ; Scott v. M'Millen, 1 Litt. 
 302 ; Greenway v. Thomas, 14 111. 271 ; Ballou v. Jones, 20 N. Y. Supr. 
 629 ; Dodd v. Levy, 10 Mo. Ap. 121. 
 
REMEDIES. 543 
 
 No Relief at Law. — When it appears that there is no 
 relief at law, a court of equity will take jurisdiction and 
 grant such relief as may be proper and necessary. 1 
 
 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, 2 and is 
 not obviated by the rendition of a judgment after the 
 filing of the bill. 3 
 
 When Relief Granted. — A bill may be filed as soon 
 as a deed is executed, although it has not 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. 4 A court of equity will interpose to prevent the 
 use of a fraudulent judgment, 5 but will not vacate it. 6 
 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. 7 
 
 1 Kamp v.Kamp, 46 How. Pr. 143. 
 
 2 Tappan v. Evans, 11 N. H. 311 ; Meux v. Anthony, 11 Ark. 411 ; 
 Brown V. Bank, 31 Miss. 454. 
 
 2 Brown v. Bank, 31 Miss. 454 ; Edgar v. Clevenger, 3 N. J. Eq. 258. 
 
 4 Gasper v. Bennett, 12 How. Pr. 307. 
 
 5 Shaw t. Dwight, 27 N". Y. 244 ; Burns v. Morse, 6 Paige, 108 ; Clark 
 v. Bailey, 2 Strobh. Eq. 143. ' Kaupe v. Bridge, 2 Bobt. 459. 
 
 ' Vasser v. Henderson, 40 Miss. 519 ; Wadsworth v. Haven, 3 Wend. 
 411 ; Wadsworth v. Williams, 100 Mass. 126 ; Gaylord v. Couch, 5 Day, 
 223 ; Botsford v. Beers, 11 Conn. 369 ; Westerman v. Westerman, 25 
 Ohio St. 500 ; Gray v. Chase, 57 Me. 558 ; Gormerly v. Chapman, 51 Geo. 
 421 ; Baker v. Lyman, 53 Geo. 339 ; Edmunds v. Mister, 58 Miss. 765 ; 
 Gormley v. Potter, 29 Ohio St. 597 ; Alford v. Baker, 53 Ind. 279 ; vide 
 Eigleberger v. Kibler, 1 Hill Ch. 113 ; M'New v. Smith, 5 Gratt. 84 ; Eice 
 v. Perry, 61 Me. 145 ; Pearson v. Maxfleld, 52 Iowa, 76 ; Love v. Geyer, 
 74 Ind. 12. 
 35 
 
544 REMEDIES. 
 
 If separate conveyances of different pieces of property are 
 made to different persons for the same fraudulent purpose, 
 a creditor may maintain an action to set aside either con- 
 veyance and can not be required to resort to the other. 1 
 If the creditor, however, has a security that may be first 
 applied to his debt before other property is appropriated 
 toward its payment, he may be compelled to exhaust the 
 security. 2 But he can not be required to relinquish it, 
 nor to bring it in as a common fund for the benefit of other 
 creditors. 3 A court of equity exercises some discretion, 4 
 and will not interfere where there is an improper com- 
 bination between the debtor and the creditor to the preju- 
 dice of the grantee. 5 
 
 Debtor's Bankruptcy. — If the debtor is declared a 
 bankrupt, the title to the property vests in his assignee. 
 Creditors can not levy upon it 6 or claim property which 
 has otherwise been fraudulently withheld. 7 The assignee 
 may file a bill in equity to set aside a fraudulent convey- 
 ance, 8 and this right is vested in him exclusively. 9 If a 
 
 1 Miller v. Dayton, 47 Iowa, 312. 
 
 2 Ooutts v. Greenhow, 2 Munf. 363 ; s. c. 4 H. & M. 485. 
 
 3 Ala. Warehouse Co. v. Jones, 62 Ala. 550. 
 
 4 Bennett v. Musgrove, 2 Ves. Sr. 51 ; Hall v. Greenly, 1 Del. Ch. 274. 
 
 5 Hemphill v. Hemphill, 34 Miss. 68; Anderson v. Tuttle, 26 N.J. 
 •Eq. 144. « Williams v. Merritt, 103 Mass. 184. 
 
 1 Codman v. Freeman, 57 Mass. 306 ; vide Hollinshead v. Allen, 17 
 Penn. 275. 
 
 8 Can- v. Hilton, 1 Curt. 230, 390 ; Pratt v. Curtis, 6 N. B. E. 139 ; 
 Bradshaw v. Klein, 1 N. B. R. 542 ; s. C. 2 Biss. 20 ; Shirley v. Long, 6 
 Band. 735 ; Shackleford v. Collier, 6 Bush, 149 ; Englebert v. Blanjot, 2 
 Whart. 240 ; Weber v. Samuel, 7 Penn. 499 ; Hubbell v. Currier, 92 Mass. 
 333 ; Johnson v. May, 16 N. B. R. 425 ; Nicholas v. Murray, 5 Saw. 320 ; 
 Crooks v. Stuart, 7 Fed. Rep. 800 ; Lynch v. Roberts, 57 Md. 150. 
 
 9 In re Meyers, 2 Ben. 424 ; s. o. 1 N. B. R. 581 ; Stewart v. Isidor 
 et al., 5 Abb. Pr. (N. S.) 68 ; s. c. 1 N. B. R. 485 ; Goodwin v. Sharkey, 
 5 Abb. Pr. (N. S.) 64 ; s. o. 3 N. B.R. 558 ; Thomas v. Phillips, 9 Penn. 
 
REMEDIES. 545 
 
 creditor, however, has obtained a lien he may continue 
 the prosecution of a suit instituted prior to the commence- 
 ment of the proceedings in bankruptcy. 1 In order to file 
 a bill it is not necessary that the assignee shall have a 
 lien on the property or obtain a return of nulla bona. 2 
 When the bill is filed by the assignee, the creditors are 
 equitable though not necessary parties, and may be joined. 3 
 If the assignee declines to act, the creditors may file a bill 
 and make him a party defendant. 4 They may also pro- 
 ceed in the same way when an administrator who is 
 authorized by law to institute such proceedings declines 
 to do so. 5 If an assignee has been discharged he need not 
 be made a party. 6 
 
 Other Parties. — A receiver appointed under proceed- 
 ings supplemental to an execution, 7 and the sheriff, when 
 
 355 ; Allen v. Montgomery, 48 Miss. 101 ; Edwards v. Coleman, 2 Bibb. 
 204 ; Thurmond v. Andrews, 10 Bush, 400 ; Hambrick v. Bragg, 4 Baxter, 
 33 ; McMasters v. Campbell, 41 Mich. 513 ; Trimble v. Woodhead, 102 
 TJ. S. 647. 
 
 1 Sedgwick v. Menck, 6 Blatch. 156 ; S. o. 1 N. B. R. 675 ; Stewart v. 
 Isidor et al., 5 Abb. Pr. (N. S.) 68 ; s. c. 1 N. B. R. 485 ; Payne v. Able, 
 7 Bush, 344 ; Goldsmith v. Russell, 5 De G. M. & G. 547 ; Storm v. 
 Waddeli, 2 Sandf. Ch. 494 ; Tichenor v. Allen, 13 Gratt. 15 ; Fetter v. 
 Cirode, 4 B. Mon. 482 ; Carr v. Farrington, 63 N. C. 560 ; Wooten v. 
 Clark, 23 Miss. 75 ; Kimberling v. Hartly, 1 Fed. Rep. 571 ; vide Smith 
 v. Gordon, 6 Law Rep. 313. 
 
 2 Cragin v. Carmichael, 2 Dillon, 519 ; Cady v. Whaling, 7 Biss. 430 ; 
 Southard v. Benner, 72 N. T. 424 ; Piatt v. Matthews, 10 Fed. Rep. 280. 
 
 - Boone v. Hall, 7 Bush, 66. 
 
 4 Sands v. Codwise, 4 Johns. 536 ; Freelander v. Holloman, 9 N. B. R. 
 331 ; Allen v. Montgomery, 48 Miss. 101 ; Bates v. Bradley, 31 N. Y. 
 Supr. 84. Contra, Glenny v. Langdon, 98 U. S. 20 ; Moyer v. Dewey, 103 
 U. S. 301. 
 
 * Bate v. Graham, 11 N. Y. 237 ; Henderson v. Brooks, 3 T. & C. 
 445. « Apperson v. Burgett, 33 Ark. 328. 
 
 ' Porter v. Williams, 9 N. Y. 142 ; s. O. 12 How. Pr. 107 ; Hamlin v. 
 Wright, 23 Wis. 491 ; Donnelly v. West, 24 N. Y. Supr. 564. Contra, 
 Higgins v. Gillesheimer, 26 N. J. Eq. 308. 
 
546 REMEDIES. 
 
 he has levied an attachment, 1 may file a bill. An assignee 
 holding under a voluntary assignment can not. 2 A party 
 who has purchased at a sale under an execution may file 
 a bill to remove the cloud on his title and the impediment 
 to his quiet enjoyment of the property, 3 although he has 
 not obtained a deed,* or may not be entitled to a deed 
 until some future day. 5 If the judgment is against the 
 firm in the firm name only, in accordance with a statute, a 
 purchaser at a sale of the property of one partner under 
 an execution thereon acquires no title and can not file a 
 bill in equity to set aside a fraudulent conveyance thereof. 6 
 
 Parties Complainant. — If a creditor has assigned his 
 claim, the bill should be brought by his assignee. 7 A 
 judgment creditor may file a bill in his own name if he 
 owns the judgment, although it was recovered to the use 
 of a third party. 8 One creditor may file a bill in his own 
 name and for his own benefit, and need not make other 
 creditors standing in the same situation parties. 9 It is 
 
 1 Kelly v. Lane, 42 Barb. 594; s. c. 18 Abb. Pr. 299 ; s. c. 28 How. 
 Pr. 128. 
 
 2 Bishop v. Halsey, 3 Abb. Pr. 400 ; Pillsbury v. Kingon, 33 N. J. Eq. 
 287 ; vide Garretson v. Brown, 26 N. J. 425 ; s. c. 27 N. J. 644 ; Simpson 
 v. Warren, 55 Me. 18; Swift v. Thompson, 9 Conn. 63. 
 
 8 Bailey v. Burton, 8 Wend. 339 ; Frakes v. Brown, 2 Blackf. 295 ; 
 Harrison v. Kramer, 3 Iowa, 343 ; Gerrish v. Mace, 75 Mass. 250 ; Gall- 
 man v. Perrie, 47 Miss. 131; Ryland v. Callison, 54 Mo. 513; Sale v. 
 McLean, 29 Ark. 612 ; Barr v. Hatch, 3 Ohio, 527 ; Swamscott Machine 
 Co. v. Perry, 119 Mass. 125; Gould v. Steinburg, 84 111. 170; Mays v. 
 Eose, Freem. Ch. (Miss.) 703 ; Hager v. Shindler, 29 Cal. 47 ; Orindorf v. 
 Budlong, 12 Fed. Bep. 24. Contra, Hall v. Greenly, 1 Del. Ch. 274 ; 
 Thigpen v. Pitt; 1 Jones Eq. 49. 
 
 4 Remington Paper Co. v. O'Dougherty, 81 N. T. 474. 
 
 5 Hoxie v. Price, 31 Wis. 82. « McCoy v. Watson, 51 Ala. 466. 
 
 ' Coale v. Mildred, 3 H. & J. 278. s Postlewait v. Howes, 3 Iowa, 365. 
 
 9 Grover v. Wakeman, 11 Wend. 187 ; s. c. 4 Paige, 23 ; Baker v. 
 Bartol, 6 Cal. 483 ; Edmeston v. Lyde, 1 Paige, 637 ; Ballentine v. Beall, 
 4 111. 203 ; Way v. Bragaw, 16 N. J. Eq. 213; Annin v. Annin, 24 N. J. 
 Eq. 184 ; Jackman v. Robinson, 64 Mo. 289. 
 
REMEDIES. 547 
 
 immaterial if there is an older judgment which constitutes 
 a lien upon the property, for the oldest judgment at law 
 will have the preference notwithstanding any decree which 
 may be made in a suit to which the owner of that judg- 
 ment is not a party. 1 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. 2 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. 3 
 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. 4 The bill may be filed on behalf of those 
 who institute the proceedings alone, or on behalf of all who 
 may choose to come in and participate in the proceedings. 5 
 A judgment creditor of the grantor and a simple contract 
 creditor of a firm which was composed of the grantor and 
 the grantee, who has since died, can not join in the same 
 bill. 6 A creditor and an administrator of the grantee can 
 not unite in the same bill to set aside a gift made prior to 
 the grant. 7 The assignor of a judgment may join with 
 
 1 Grover v. Wakenuan, 11 Wend. 187 ; s. c. 4 Paige, 23. 
 
 5 Adams v. Davidson, 10 N. Y. 309. 
 
 » Lentilhon v. Moffat, 1 Edw. 451 ; Waller v. Todd, 3 Dana, 503 ; Corn- 
 stock v. Rayford, 9 Miss. 423 ; s. c. 20 Miss. 369 ; Gannard v. Eslava, 20 
 Ala. 732 ; Brinckerhoff v. Brown, 4 Johns. Ch. 671 ; S. c. 6 Johns. Ch. 
 139; Clarkson v. De Peyster, 3 Paige, 320; Ruffing v. Tilton, 12 Ind. 
 259; Williams v. Michenor, 11 N. J. Eq. 520; Wall v. Fairley, 73 ST. C. 
 464. 4 Clarkson v. De Peyster, 3 Paige, 320. 
 
 5 Edmeston v. Lyde, 1 Paige, 637 ; Bireley v. Staley, 5 G. & J. 432 ; 
 Hammond v. Hudson RiverJR. R. Co., 20 Barb. 378. 
 
 6 Bauknight v. Sloan, 17 Ela. 284. 
 
 7 Coleman v. Pinkard, 2 Humph. 185. 
 
548 REMEDIES. 
 
 the assignee. 1 If the complainant's debt consists of a 
 judgment assigned to him by a trustee of a judgment 
 creditor, he should make the trustee and the creditor 
 parties. 2 
 
 Parties Defendant. — Creditors who have liens on the 
 property may file a bill after the appointment of a receiver 
 and make him a party. 3 If the property has been trans- 
 ferred merely as security for a debt, the debtor is a neces- 
 sary party. 4 If he has parted with the title absolutely he 
 is a proper party, for it is his debt that is sought to be 
 collected, and his fraudulent conduct that requires investi- 
 gation. But he is not a necessary party, for he has no 
 beneficial interest which can be affected by the litigation. 5 
 If the debt is against several parties and the conveyance is 
 made by one alone, the other debtors are not necessary 
 parties. 8 If the debtor becomes bankrupt he is not a 
 necessary party to a bill filed by the assignee. 7 If the 
 debtor dies his administrator is a proper but not a neces- 
 
 1 Beach v. White, Walk. Ch. 495. 2 Cooper v. Gunn, 4 B. Mon. 594. 
 
 3 Gere v. Dibble, 17 How. Pr. 31. 
 
 4 Hammond v. Hudson Biver Co., 20 Barb. 378. 
 
 s Leach v. Shelby, 58 Miss. 681 ; Potter v. Phillips, 44 Iowa, 353 ; 
 Laughton v. Harden, 68 Me. 208. Contra, Sewall v. Russell, 2 Paige, 175 ; 
 Lovejoy v. Irelan, 17 Md. 525 ; Gaylords v. Kelshaw, 1 Wall. 81; Law- 
 rence v. Bank, 35 N. Y. 320 ; s. c. 3 Robt. 142 ; Beardsley Scythe Co. v. 
 Foster, 36 N. Y. 561 ; s. c. 34 How. Pr. 97 ; Allison v. Weller, 6 T. & C. 
 291 ; Wallace v. Eaton, 5 How. Pr. 99 ; Miller v. Hall, 40 N. Y. Sup. 262 ; 
 Shaver v. Brainard, 29 Barb. 25. 
 
 'Pox v. Moyer, 54 N. Y. 125 ; Randolph v. Daly, 16 N. J. Eq. 313 ; 
 Union Nat'l Bank v. Warner, 19 N. Y. Supr. 306. Contra, Postlewaite 
 v. Howes, 3 Iowa, 365. 
 
 7 Bufflngton v. Harvey, 95 U. S. 99 ; Benton v. Allen, 2 Fed. Rep. 448 ; 
 Weise v. Wardle, L. R. 19 Eq. 171. Contra, Verselius v. Verselius, 9 
 Blatch. 189 ; Johnson v. May, 16 N. B. R. 425. 
 
REMEDIES. 549 
 
 sary party. 1 The debtor's heirs need not be made parties, 
 for they have no interest in the property . a 
 
 The grantee is a necessary party. 3 If there is more 
 than one grantee, then all the grantees must be made 
 parties. 4 If the grantee, however, has parted with his 
 interest in the property he is not a necessary party. 5 
 Although he assumes in the deed to pay certain creditors 
 and makes their claims a charge on the property, yet they 
 are not necessary parties. 8 When the fraudulent convey- 
 ance consists of an assignment, the creditors whose debts 
 are provided for in it are not necessary parties. 7 But in 
 other cases of trust the cestui que trust is a necessary 
 
 1 Taylor v. Webb, 54 Miss. 36 ; Wall v. Tab-ley, 73 N. C. 464 ; Jack- 
 man v. Robinson, 64 Mo. 289 ; Bireley v. Staley, 5 G. & J. 432 ; Mc- 
 Cutchen v. Peigne, 4 Heisk. 565 ; Merry v. Fremon, 44 Mo. 518 ; Dockray 
 v. Mason, 48 Me. 178 ; Cornell v. Radway, 22 Wis. 260 ; Jackson v. For- 
 rest, 2 Barb. Ch. 576. Contra, Boggs v. McCoy, 15 W. Va. 344 ; Bach- 
 man v. Sepulveda, 39 Cal. 688 ; Scriven v. Bostick, 2 McCord Ch. 410 ; 
 Coates v. Day, 9 Mo. 304 ; Postlewait v. Howes, 3 Iowa, 365 ; Peaslee v. 
 Barney, 1 Chip. 331 ; Chamberlayne v. Temple, 2 Rand. 384 ; Simpson 
 v. Simpson, 7 Humph. 275 ; Pharis v. Leachman, 20 Ala. 662 ; McDowell 
 v. Cochran, 11 111. 31 ; Barton v. Bryant, 2 Ind. 189 ; Cobb v. Norwood, 
 11 Tex. 556 ; Snodgrass v. Andrews, 30 Miss. 472. 
 
 * Smith v. Grim, 26 Penn. 95 ; Taylor v. Webb, 54 Miss. 36 ; Wall v. 
 Fairley, 73 N. C. 464. 
 
 ' Rock v. Dade, May on Fraud, 519 ; Taylor v. Wyld, 8 Beav. 159 
 Hightower v. Mustian, 8 Geo. 506; Tichenor v. Allen, 13 Gratt. 15 
 Edmeston v. Lyde, 1 Paige, 637 ; Winchester v. Crandall, 1 Clarke, 371 
 Hammond v. Hudson River Co., 20 Barb. 378 ; Gray v. Schenck, 4KT 
 460 ; Brevard v. Sumnar, 1 Heisk. 97 ; Jackman v. Robinson, 64 Mo. 289 ; 
 vide Sockman v. Sockman, 18 Ohio, 362. 
 
 4 Ward v. Hollins, 14 Md. 158. B Jackman v. Robinson, 64 Mo. 289. 
 
 « Union Kat'l Bank v. Warner, 19 N. Y. Supr. 306. 
 
 7 Grover v. Wakeman, 11 Wend. 187 ; s. o. 4 Paige, 23 ; Irwin v. Keen, 
 3 Whart. 347 ; M'Kinley v. Combs, 1 Mon. 105 ; Therasson v. Hickok, 37 
 Vt. 454; Scudder v. Voorhis, 5 Sandf. 271 ; Bank v. Suydam, 6 How.Pr. 
 379 ; Russell v. Lasher, 4 Barb. 232 ; Rogers v. Rogers, 3 Paige, 379. 
 Contra, Thornbury v. Baxter, 24 Ark. 76. 
 
550 REMEDIES. 
 
 party as well as the trustee, for the beneficiary owns the 
 equitable and ultimate interest to be affected by a decree. 1 
 All the beneficiaries under an ante-nuptial . agreement 
 ought to be made parties, although only a part of them 
 are beneficiaries under a deed of trust executed in pursu- 
 ance thereof as a post-nuptial settlement. 8 A person 
 through whom the title has passed from the debtor to the 
 grantee is a proper 3 but not necessary party. 4 A pur- 
 chaser from the grantee is a necessary party. 5 If the 
 property is in fee the administrator of the grantee is not a 
 necessary party. 6 A creditor who intervenes in an attach- 
 ment suit claiming the benefit thereof is a proper but not 
 necessary party to a bill filed to enforce the attachment 
 lien. 7 Those who had interests in the property prior to 
 the transfer, 8 and the grantor of property which has been 
 fraudulently purchased in the name of another, 9 and a 
 purchaser pendente lite, 10 are not necessary parties. A 
 mortgagee who takes his title from a grantee in whose 
 name the property was purchased with the debtor's money 
 
 ' Day v. Wetherby, 29 Wis. 363. Contra, Tucker v. Zimmerman, 61 
 Geo. 599. 
 
 2 Kinnard v. Daniel, 13 B. Mon. 496. 
 
 3 Bennett v. McGuire, 58 Barb. 625; s. c. 5 Lans. 183; Randolph v. 
 Daly, 16 N. J. Eq. 313 ; Waller v. Shannon, 53 Miss. 500 ; Martin v. 
 Walker, 19 N. T. Supr. 46. 
 
 4 Walter v. Riehl, 38 Md. 211 ; Jackman v. Robinson, 64 Mo. 289 ; Stout 
 v. Stout, 77 Ind. 537. 
 
 5 Gray v. Schenck, 4 N. Y. 460 ; Brevard v. Sumnar, 1 Heisk. 97 ; 
 Potter v. Stevens, 40 Mo. 229 ; Thornbury v. Baxter, 24 Ark. 76. 
 
 6 McCutchen v. Peigne, 4 Heisk. 365 ; Cookingham v. Ferguson, 8 
 Blatch. 488 ; s. o. 4 N. B. R. 636. 
 
 * Williams v. Michenor, 11 N. J. Eq. 520. 
 
 8 Venable v. Bank, 2 Pet. 107 ; Erfort v. Consalus, 47 Mo. 208 ; Walter 
 v. Riehl, 38 Md. 211 ; McRae v. Branch Bank, 19 How. 376; Reynolds v. 
 Park, 5 Lans. 149. Contra, Williams v. Michenor, 11 ST. J. Eq. 520. 
 
 9 Ballentine v. Beall, 4 111. 203 ; Whitmore v. Woodward, 28 Me. 392. 
 " Schafferman v. O'Brien. 28 Md. 565. 
 
REMEDIES. 551 
 
 is not a necessary party if the validity of his mortgage is 
 not impeached. 1 Several grantees claiming different por- 
 tions of the property by distinct conveyances may be 
 joined, for the object is to obtain satisfaction out of such 
 property, and this is single. 2 So also where the judgment 
 is joint and separate conveyances are made by each of the 
 debtors, all the grantees may be united. 3 
 
 Averments of Bill. — The facts which give juris- 
 diction to the court and a right to relief must be plainly 
 and succinctly stated. The amount and character 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. 4 If the debt consists of a 
 judgment, the bill must show against whom the judgment 
 was rendered. 5 The bill must aver the facts which give a 
 lien or confer jurisdiction without a lien. 6 If it is filed 
 by simple contract creditors it should be filed on behalf of 
 
 1 Trego v. Skinner, 42 Md. 426. 
 
 '' Hamlin v. Wright, 23 Wis. 491 ; Chase v. Searles, 45 N. H. 511 ; 
 Brinckerhoff v. Brown, 4 Johns. Ch. 671 ; s. c. 6 Johns. Ch. 139 ; Fellows 
 v. Fellows, 4 Cow. 682 ; Allen v. Montgomery R. R. Co., 11 Ala. 437 
 Snodgrass v. Andrews, 30 Miss. 472 ; North v. Bradway, 9 Minn. 183 
 Boyd v. Hoyt, 5 Paige, 65 ; Hammond v. Hudson Co., 20 Barb. 378 
 Way v. Bragaw, 16 N. J. Eq. 213 ; Randolph v. Daly, 16 W. J. Eq. 313 
 Bank v. Suydam, 6 How. Pr. 379 ; Reed v.^Stryker, 4 Abb. Ap. 26 ; Trego 
 v. Skinner, 42 Md. 426 ; Waller v. Shannon, 53 Miss. 500 ; Donovan v. 
 Dunning, 69 Mo. 436 ; Bauknight v. Sloan, 17 Fla. 284 ; Bank v. Harris, 
 84 1ST. C. 206 ; Van Kleeck v. Miller, 19 N. B. R. 484. 
 
 3 Planters' Bank v. Walker, 7 Ala. 926 ; Royer Wheel Co. v. Fielding, 
 61 How. Pr. 437. 
 
 * Walthall v. Rives, 34 Ala. 91 ; Strike v. M'Donald, 2 H. & G. 191 ; 
 s. c. 1 Bland, 57. 
 
 5 Lipperd v. Edwards, 39 Ind. 165. 
 
 « McElwain v. Willis, 9 Wend. 548 ; S. C. 3 Paige, 505 ; Beardsley 
 Scythe Co. v. Foster, 36 N. Y. 561 ; s. c. 34 How. Pr. 97. 
 
552 REMEDIES. 
 
 all the creditors. 1 The fact that the debtor has trans- 
 ferred his property must be specifically and formally 
 alleged, 2 and a description of the property must also be 
 given. a 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 intended to be made the 
 subject of litigation/ An amended bill for this purpose 
 only operates from the time of the service of process un- 
 der it. 5 The bill must also state facts 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 disposition embarrasses him in obtaining satisfaction 
 of his debt, for if the debtor at the time of the filing of 
 the bill has other property sufficient to satisfy the debt, 
 there is no necessity for the creditor to resort to equity. 6 
 When the debtor is deceased, the bill must allege a de- 
 ficiency 7 of the personal assets. An exhaustion of them, 
 however, need not be alleged. 8 If a partnership creditor 
 seeks to reach individual property which has been dis- 
 posed of by a fraudulent conveyance, it is not necessary 
 
 1 Reese River Mining Co. v. Atwell, L. R. 7 Eq. 347 ; s. c. 20 L. T. 
 (N. S.) 163 ; Barton v. Bryant, 2 Ind. 189 ; Strike v. M'Donald, 2 H. & G. 
 191 ; s. c. 1 Bland, 57 ; Wright v. Campbell, 27 Ark. 637 ; Hunt v. Field, 
 9 N. J. Eq. 36. 
 
 2 McElwain v. Willis, 9 Wend. 548 ; s. c. 3 Paige, 505. 
 
 3 King v. Trice, 3 lred. Eq. 568. 
 
 4 Miller v. Sherry, 2 Wall. 237 ; McCaulay v. Rodes, 7 B. Mon. 462. 
 
 5 Miller v. Sherry, 2 Wall. 237. 
 
 6 Dunham v. Cox, 10 N. J. Eq. 437 ; Harris v. Taylor, 15 Cal. 348 ; 
 Payne v. Sheldon, 63 Barb. 169 ; s. c. 43 How. Pr. 1 ; Bruker v, Kelsey, 
 72 Ind. 51 ; Baugh v. Boles, 35 Ind. 524. 
 
 1 State Bank v. Ellis, 30 Ala. 478 ; Quarles v. Grigsby, 31 Ala. 172. 
 8 McLaughlin v. Bank of Potomac, 7 How. 220. 
 
REMEDIES. 553 
 
 that he shall allege that he has exhausted the partner- 
 ship assets. 1 A creditor who takes judgment against a 
 surviving partner alone, may make the judgment out of 
 his individual property. 2 
 
 Charge of Fraud. — Fraud must be charged, 3 and this 
 should in general be done by setting forth the facts which 
 constitute the fraud. 4 A mere allegation imputing mo- 
 tives of fraud is not sufficient. 5 But an averment of an 
 intent to delay, hinder or defraud creditors is not an aver- 
 ment of a conclusion of law but of an essential fact. 6 
 Fraud may be sufficiently averred by setting forth the 
 particular manner in which the act was done and the par- 
 ticular end and design to be accomplished. Where the 
 facts thus stated show that a fraud was designed and per- 
 petrated, 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. 7 The 
 bill should aver that the debtor at the time of the trans- 
 fer did not have enough other property left to satisfy all 
 his debts, whether the transfer was voluntary, 8 or tainted 
 
 1 Randolph v. Daly, 16 N. J. Eq. 313 ; vide Postlewait v. Howes, 3 
 Iowa, 365. 5 Postlewait v. Howes, 3 Iowa, 365. 
 
 8 Kichardson v. Horton, 7 Beav. 112 ; Baker v. Chandler, 51 Ind. 85 ; 
 Carter v. Dickinson, 13 Ir. Ch. 109. 
 
 * Prentice v. 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 ; s. c. 21 N. Y. 
 168 ; Hovey v. Holcomb, 11 111. 660; Eowland v. Coleman, 45 Geo. 204; 
 Pence v. Croan, 51 Ind. 336. 
 
 6 Rowland v. Coleman, 45 Geo. 204 ; Flewellen v. Crane, 58 Ala. 627; 
 Pickett v. Pipkin, 64 Ala. 920 ; Galloway v. Peoples' Bank, 54 Geo. 441; 
 Steele v. Moore, 54 Ind. 52. 
 
 6 Piatt v. Mead, 9 Fed. Rep. 91 ; Morgan v. Bogue, 7 Neb. 429. 
 
 1 Hovey v. Holcomb, 11 111. 660 ; Catchings v. Manlove, 39 Miss. 655 ; 
 Moreland v. Atchison, 34 Tex. 351. 
 
 8 ShermaD v. Hogland, 54 Ind. 578 ; Brookbank v. Kennard, 41 Ind. 
 339 ; Romine v. Romine, 59 Ind. 346 ; Piatt v. Mead, 9 Fed. Rep. 91. 
 
554 REMEDIES. 
 
 with actual fraud. 1 If the transfer was made for a valu- 
 'able consideration, there must be an allegation that the 
 grantee participated in the fraud. 3 If the transfer, how- 
 every, was voluntary, an allegation that the donee parti- 
 cipated in the fraud is not necessary. 3 When the com- 
 plainant apprehends that the defendant will plead the 
 statute of limitations against him, he should aver in his 
 bill that the fraud has been discovered within such a 
 period previous to the commencement of the suit as will 
 prevent the bar. 4 Certainty to a common intent is all 
 that is required in chancery pleadings. The accuracy 
 which would exclude every other conclusion is not re- 
 quired. 5 
 
 Supplemental Bill. — An indorser who has taken up 
 the note which constituted the debt can not have a pend- 
 ing bill in the name of the holder prosecuted for his use, 
 for the payment to the holder put an end to the suit. 6 
 When a bill has been filed by a simple contract creditor 
 to enforce the trust arising from an assignment, he may, 
 after obtaining judgment and upon a subsequent discovery 
 
 'Ewing v. Patterson, 35 Ind. 326; Baugh v. Boles, 35 Ind. 524; 
 Pence v. Croan, 51 Ind. 336 ; Deutsch v. Kossmeier, 59 Ind. 373 ; Wede- 
 kind v. Parsons, 64 Ind. 290 ; Alford v. Baker, 53 Ind. 279 ; Spaulding v. 
 Myers, 64 Ind. 264; Pfeifer v. Snyder, 72 Ind. 78; Spaulding v. Blythe, 
 73 Ind. 93 ; Evans v. Hamilton, 56 Ind. 34; Bentley v. Dunkle, 37 Ind. 
 374 ; Price v. Sanders, 60 Ind. 310 ; Wiley v. Bradley, 67 Ind. 560 ; 
 Whitesel v. Hiney, 60 Ind. 68 ; Noble v. Hines, 72 Ind. 12 ; vide Hager v. 
 Shindler, 29 Cal. 47. 
 
 s Klein v. Horine, 47 111. 430 ; Spaulding v. Myers, 64 Ind. 264. 
 
 a Laughton v. Hardin, 68 Me. 208 ; Spinner v. Weick, 50 Ind. 213. 
 
 • McLure v. Ashby, 7 Rich. Eq. 430 ; Erickson v. Quinn, 3 Lans. 299 ; 
 s. c. 47 N. Y. 410 ; Carr v. Hilton, 1 Curt. 230, 390 ; Shannon v. White, 
 6 Rich Eq. 96 ; Combs v. Watson, 32 Ohio St. 208. 
 
 6 Pope v. Wilson, 7 Ala. 690. 
 
 6 Heighe v. Farmers' Bank, 5 H. & J. 68. 
 
REMEDIES. 555 
 
 of fraud, file a supplemental bill to set aside the assign- 
 ment, for the subject matter of both the original and sup- 
 plemental bill is the debt due to the complainant and the 
 trust fund out of which he seeks payment. 1 
 
 Objection to Joinder of Parties. — The defendant 
 waives the objection of a misjoinder of complainants by 
 answering the bill. 3 When a bill is defective for want of 
 proper parties, and this defect appears on its face, it is 
 liable to a demurrer, 3 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. 4 An objection to the 
 nonjoinder of a party defendant which is not taken by de- 
 murrer or answer may be disregarded at the hearing, 5 un- 
 less he is a necessary party. 6 Where an objection to the 
 want of proper parties is taken at hearing, the case may 
 be continued with leave to bring in the necessary parties. 7 
 
 If a proper decree can be made consistent with the 
 general scope of the bill without causing any embarrass- 
 ment to any of the parties as to any other rights which 
 they may have or the parties or the court in executing 
 the decree, the bill will not be dismissed at the hearing 
 for multifariousness. 8 
 
 Pleading. — No matter can be pleaded in bar of the 
 recovery merely when it would be equally valid as a 
 
 ' Baker v. Bartol, 6 Cal. 483. 
 
 ! Annin v. Annin, 24 N. J. Eq. 184 ; Lyman v. Place, 26 N. J. Eq. 30. 
 
 8 Hightower v. Mustian, 8 Geo. 506. 
 
 4 Bay State Iron Co. v. Goodall, 39 N. H. 223 ; M'Kinley v. Combs, 1 
 Mon. 105. 
 
 e Stanwix Bank v. Leggett, 51 N. Y. 552 ; Martin v. Walker, 19 N. 
 Y. Supr. 46 ; Union Nat'l Bank v. Warner, 19 If. Y. Supr. 306 ; Dewey 
 v. Moyer, 16 N. Y. Supr. 473. 6 Postlewait v. Howes, 3 Iowa, 365. 
 
 'Postlewait v. Howes, 3 Iowa, 365. 
 
 8 Hays v. Doane, 11 N. J. Eq. 84. 
 
556 REMEDIES. 
 
 defense to the relief. 1 It is the right of the defendant to 
 verify his answer by an affidavit, and the complainant can 
 not deprive him of it by waiving an answer under oath. 2 
 The grantee is the party who is interested in defeating the 
 suit, and he can not be prejudiced by the conduct of the 
 debtor. The fact that the debtor suffers the bill to be 
 taken pro confesso, 3 or admits the fraud in his answer, 4 will 
 not affect the grantee. If the bill is filed to reach property 
 conveyed by the husband to another and by the latter to 
 the wife, the answer of the husband denying the fraud in 
 the conveyance made by him enures to the benefit of the 
 wife. 5 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. 6 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 merely literally but confess or 
 traverse the substance of each charge positively and with 
 certainty, and particular precise charges must be answered 
 particularly and precisely, and not in a general manner, 
 even though a general denial may amount to a full denial 
 
 1 Brownell v. Curtis, 10 Paige, 210. 
 
 2 Clements v. Moore, 6 Wall. 299. 
 
 8 Sands v. Hildreth, 2 Johns. Ch. 35 ; s. C. 14 Johns. 493 ; Hollister 
 v. Loud, 2 Mich. 309 ; Dick v. Hamilton, 1 Deady, 322 ; Fulton v. Wood- 
 man, 54 Miss. 158 ; Thames v. Rembert, 63 Ala. 561. 
 
 « Glenn v. Grover, 3 Md. 212 ; s. c. 3 Md. Ch. 29 ; Scheitlin v. Stone, 
 43 Barb. 634 ; s. c. 29 How. Pr. 355 ; Kittering v. Parker, 8 Ind. 44 ; 
 Hord v. Bust, 4 Bibb, 331. 
 
 6 Salmon v. Smith, 58 Miss. 399. 
 
 « Bunn v. Bunn, 3 New Eep. 679 ; s. c. 12 W. R. 561 ; Wich v. Parker, 
 22 Beav. 59 ; Michael v. Gay, 1 F. & F. 409 ; Bay State Iron Co. v. 
 Goodall, 39 N. H. 223 ; Devoll v. Brownell, 22 Mass. 448 ; Horstman v. 
 Kaufman, 97 Penn. 147 ; vide Reg. v. Smith, 6 Cox. C. Cas. 31 ; Creswell 
 & Coke's Case, 2 Leon. 8. 
 
REMEDIES. 557 
 
 of the charges. 1 When he is required to meet an allega- 
 tion that the debtor had no other property, he must do so 
 directly or by a statement of facts which negative it. 2 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 transfer. 3 
 
 Supplemental Answer. — An answer cannot 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 supplemental 
 answer. Under such an answer, if the defendant by mis- 
 take or misapprehension of the facts, or of his rights, has 
 made an admission in his original answer which is incon- 
 sistent with the truth, he has an opportunity by proofs to 
 show the truth and thus relieve himself from the conse- 
 quences of his mistake. 4 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. 5 
 
 Cross-bill. — A voluntary grantee may subject other 
 property of the grantor first to the satisfaction of the 
 
 1 Barrow v. Bailey, 5 Fla. 9 ; Croft v. Arthur, 3 Dessau. 223 ; Phippen „ 
 v. Durham, 8 Gratt. 457 ; Bailey v. Nicoll, 1 Edw. 32. 
 
 2 Welcker v. Price, 2 Lea, 666. 
 
 8 Miller v. Fraley, 21 Ark. 22 ; Byers v. Fowler, 12 Ark. 218 ; Stan- 
 ton v. Green, 34 Miss. 576; Friedenwald v. Mullan, 10 Heisk. 226. 
 4 Hughes v. Bloomer, 9 Paige, 269. 
 6 Richards v. Swan, 7 GUI. 366 ; S. O. 2 Md. Ch. 111. 
 
558 REMEDIES. 
 
 creditor's claim by a proper cross-bill. 1 The debtor may 
 present his claim to an exemption by a cross-bill, for it is 
 germane to and grows out of the original bill. 2 If the 
 grantee files a bill to restrain a sale under an execution, 
 the execution creditor can not by a cross-bill have the 
 deed declared null, for he can not make the grantor a 
 party. 3 
 
 Matter responsive to the Bill is Evidence. — State- 
 ments in the answer responsive to the averments in the 
 bill are evidence in favor of the defendant, 4 but averments 
 which are not responsive to the bill must be sustained by 
 proof. 5 Statements which consist of explanations or 
 qualification of an admission are responsive, 6 but when the 
 answer admits a fact and insists upon a distinct fact by 
 way of avoidance, the fact admitted is established, but the 
 fact insisted upon must be proved ; otherwise the admis- 
 sion stands as if the fact in avoidance had not been averred. 7 
 
 How Denial mat be Overcome. — A denial of fraud in 
 the answer is not conclusive. 8 An answer, however, 
 
 1 Leonard v. Eorcheimer, 49 Ala. 145. 
 
 8 Thomason v. Neeley, 50 Miss. 310. 4 Shaw v. Millsaps, 50 Miss. 380. 
 
 3 Dewey v. Littlejohn, 2 Ired. Eq. 495 ; Pomeroy v. Manin, 2 Paine, 
 476 ; Blow v. Gage, 44 111. 208 ; Phettiplace v. Sayles, 4 Mason, 312 ; 
 Glenn v. Randall, 2 Md. Ch. 220 ; Green v. Tanner, 49 Mass. 411 ; Harts- 
 home v. Eames, 31 Me. 93. 
 
 4 Sanborn v. Kittredge, 20 Vt. 632 ; McNeal v. Glenn, 4 Md. 87 ; s. c. 
 3 Md. Ch. 349 ; Grover v. Wakeman, 4 Paige, 23; s. c. 11 Wend. 187. 
 
 6 Glenn v. Randall, 2 Md. Ch. 220 ; Eastman v. M'Alpin, 1 Geo. 157 ; 
 . Glenn v. Grover, 3 Md. 212 ; s. o. 3 Md. Ch. 29. 
 
 6 Clements v. Moore, 6 Wall. 299 ; Randall v. Phillips, 3 Mason, 378 ; 
 Cummings y. McCullough, 5 Ala. 324; Brown v. M'Donald, 1 Hill Ch. 
 297; Hampson v. Sumner, 18 Ohio, 444; Stanton v. Green, 34 Miss. 576. 
 
 'Howv. 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 ; King v. Payan, 18 Ark. 583 ; Ing v. Brown, 3 Md. Ch. 321. 
 
REMEDIES. 559 
 
 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 testi- 
 mony of two witnesses, or of one witness with corrobora- 
 ting circumstances. 1 If the answer, however, admits facts 
 from which a conclusive presumption of a fraudulent 
 intent must be drawn, the denial of the answer is over- 
 come. 2 A positive denial will not prevail against admis- 
 sions in the answer of facts which show that the transfer 
 was fraudulent. 3 Pregnant or slight circumstances, how- 
 ever, are not sufficient. 4 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- objections to the answer for the 
 want of particularity and fullness should be taken by 
 exceptions to its sufficiency. 5 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. 
 
 1 Moffatt v. McDowell, 1 McCord Ch. 434 ; Myers v. Kinzie, 26 111. 36 ; 
 Blow v. Gage, 44 111. 208 ; Feigley v. Feigley, 7 Md. 537 ; Glenn v. Grover, 
 3 Md. 212 ; s. C. 3 Md. Ch. 29 ; Green v. Tanner, 49 Mass. 411 ; Gray v. 
 Paris, 7 Yerg. 155 ; Allen v. Mower, 17 Vt. 61 ; Allen v. White, 17 Vt. 
 69 ; Jenison v. Graves, 2 Blackf. 440 ; Clark v. Bailey, 2 Strobli. Eq. 143 ; 
 Parkhurst v. McGraw, 24 Miss. 134 ; Kittering v. Parker, 8 Ind. 44 ; Cul- 
 bertson v. Luckey, 13 Iowa, 12 ; Wright v. Wheeler, 14 Iowa, 8 ; Wight- 
 man v. Hart, 37 111. 123 ; Walter v. McNabb, 1 Heisk. 703 ; Hoboken 
 Bank v. Beekman, 33 N. J. Eq. 53. 
 
 2 Grover v. Wakeman, 11 Wend. 187 ; s. c. 4 Paige, 23 ; Cunningham 
 v. Preeborn, 11 Wend. 241 ; S. c. 1 Edw. 256 ; S. c. 3 Paige, 537 ; Fiedler 
 v. Day, 2 Sandf. 594; Cook v. Johnson, 12 N". J. Eq. 51. 
 
 "Bobinson v. Stewart, 10 N. Y. 189 ; Belford v. Crane, 16 N. J. Eq. 
 265 ; Litchfield v. Pelton, 6 Barb. 187. • 
 
 4 Glenn v. Grover, 3 Md. 212 ; s. 0. 3 Md. Ch. 29 ; How v. Camp, 
 Walk. Ch. 427. 
 
 5 Parkman v. Welch, 36 Mass. 231 ; Waterbury v. Sturtevant, 18 Wend. 
 353 ; McRea v. Branch Bank,*29 How. 376. 
 
 36 
 
560 REMEDIES. 
 
 So in weighing the whole evidence in the case the fact 
 that the defendant only answers generally will operate 
 against him wherever 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 
 particular acts imputed to him. 1 When the cause is heard 
 on bill and answer, all pertinent facts stated in the answer 
 must be taken to be true. 3 In such case mere badges of 
 fraud disclosed in the answer are not sufficient to overcome 
 the denial of fraud. 3 
 
 Other Creditors. — The practice of permitting other 
 creditors to come in and make themselves parties to a 
 creditor's bill and thereby obtain the benefit, assuming at 
 the same time their portion of the costs and expenses, is 
 well settled. 4 
 
 Statute of Limitations. — The statute of limitations is 
 never considered as an objection to the payment of a claim 
 unless it is specially relied on. 5 The plea may be set up 
 as a bar to the demand 6 or to the title to the property. 
 
 1 Parkman v. Welch, 36 Mass. 231 ; Waterbury v. Sturtevant, 18 Wend. 
 353 ; Hawkins v. Allston, 4 Ired. Eq. 137 ; Enders v. Swayne, 8 Dana, 
 103 ; Gamble v. Johnson, 9 Mo. 605. • 
 
 2 Heydock v. Stanhope, 1 Curt. 471 ; Heacock v. Durand, 42 111. 230. 
 8 Marshall v. Croom, 52 Ala. 554. 
 
 4 Myers v. Fenn, 5 Wall. 205 ; Strike v. M'Donald, 2 H. & G. 191; 
 s. c. 1 Bland, 57. * 
 
 5 Strike v. M'Donald, 2 H. & G. 191 ; s. c. 1 Bland, 57. 
 'McDowell v. Goldsmith, 6 Md. 319; s. O. 2 Md. Ch. 370; S. c. 24 
 
 Md. 214 ; Lott v. De Graffenreid, 10 Rich. Eq. 346 ; M'Clenney v. M'Clen- 
 ney, 3 Tex. 192 ; Fox v. Wallace, 30 Miss* 660. 
 
REMEDIES. 561 
 
 Such a plea can not be put in after a defense has been 
 made, to the claim. 1 In determining its sufficiency the 
 substance of the objection must govern rather than the 
 form in which it is presented. 2 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. 3 The plea of the statute of limitations in 
 the answer will not apply to claims that are filed subse- 
 quently. The defense as to such claims must be taken by 
 exceptions. 4 The complainant's claim to relief 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. 5 The statute continues to run against other credi- 
 tors until they come in by filing their petition or the 
 vouchers of their claims. 6 If a judgment is recovered 
 against the debtor after the transfer, but before the claim 
 is barred, the original claim becomes merged in the judg- 
 ment, and the plea of limitations against the original claim 
 will not avail. 7 If the claim, however, is barred before 
 judgment, a confession of judgment by the debtor after the 
 transfer will not defeat the plea. 8 If the statute began to 
 
 1 Williams v. Banks, 19 Md. 22 ; s. c. 11 Md. 198. 
 
 ! McDowell v. Goldsmith, 24 Md. 214 ; s. c. 2 Md. Ch. 370 ; s. c. 6 Md. 
 319. 
 
 8 Strike v. McDonald, 2 H. & G. 191 ; s. c. 1 Bland, 57 ; McDowell v. 
 Goldsmith, 6 Md. 319 ; s. c. 2 Md. Oh. 370 ; s. c. 24 Md. 214. 
 
 4 Williams v. Banks, 11 Md. 198 ; s. c. 19 Md. 22 ; McDowell v. Gold- 
 smith, 24 Md. 214 ; s. C. 2 Md. Ch. 370 ; S. C. 6 Md. 319. 
 
 5 Hunt v. Knox, 34 Miss. 655. 
 
 6 Strike v. McDonald, 2 H. & G. 191 ; S. o. 1 Bland, 57 ; McDowell v. 
 Goldsmith, 6 Md. 319 ; s. 0. 2 Md. Ch. 370 ; S. O. 24 Md. 214. 
 
 ' Schafferman v. O'Brien, 28 Md. 565 ; Williams v. Banks, 11 Md. 
 198 ; s. c. 19 Md. 22. 
 
 8 McDowell v. Goldsmith, 24 Md. 214 ; S. C. 2 Md. Ch. 370 ; s. C. 6 
 Md. 319 ; vide Jones v. Read, 1 Humph. 335. 
 
562 REMEDIES. 
 
 run before the conveyance, it is not suspended thereby. 1 
 If the claim in case of the debtor's death is not presented 
 to his personal representatives within the time prescribed 
 by law, it is barred. 2 
 
 Limitation as to Title. — Although a fraudulent con- 
 veyance is voidable as against creditors, yet the title of 
 the grantee is within the protection of the statute of limi- 
 tations. 3 Nor is he precluded from claiming the benefit 
 of the statute by the fact that he is for some purposes 
 treated as a trustee for the creditors, for he is merely a 
 trustee against his will by operation of law. 4 But in 
 order that he may obtain the benefit of the statute, the 
 conveyance must be recorded or there must be a change 
 of possession. If there is neither a record of a conveyance 
 nor a change of possession, the statute does not apply to 
 the transaction, for no length of possession by the debtor 
 will bar the claim of a creditor. 5 There is a conflict 
 among the decisions as to the time from which the statute 
 begins to run when there is a record of a conveyance or a 
 change of possession. In some it is held that the statute 
 begins to run from the date of the conveyance ; 6 in others, 
 from the time when the creditor obtains judgment; 7 in 
 
 1 Beed v. Minell, 30 Ala. 61. 2 Halfman v. Ellison, 51 Ala. 543. 
 
 3 Porter v. Cocke, Peck, 30 ; Blanton v. Whitaker, 11 Humph. 313 ; 
 Bobbins v. Sackett, 23 Kans. 301; Lockard v. Nash, 64 Ala. 365. 
 
 4 Musselman v. Kent, 33 Ind. 452 ; Bobb v. Woodward, 50 Mo. 95. 
 
 6 Belt v. Baguet, 27 Tex. 471 ; Peterson v. Williamson, 2 Dev. 326 ; 
 Dobson v. Erwin, 4 Dev. & Bat. 201 ; 1 Dev. & Bat. 569 ; Law v. Smith, 
 4 Ind. 56. 
 
 6 Beeves v. Dougherty, 7 Yerg. 222 ; Bobb v. Woodward, 50 Mo. 95 ; 
 Scriven v. Bostwick, 2 McCord Ch. 410 ; Bank v. Ballard, 12 Bich. 259 ; 
 Gregg v. Bigham, 1 Hill (S. C.) 299. 
 
 ' Bamsey v. Quillen, 5 Lea, 184 ; Porter v. Cocke, Peck, 30 ; Jones v. 
 Bead, 1 Humph. 335 ; Compton v. Perry, 23 Tex. 414 ; Beynolds v. Lans- 
 
REMEDIES. 563 
 
 others, from the time of the levying of an execution on the 
 property, 1 and in others from the time of a sale under an 
 execution. 2 In some cases it has been held that the law 
 on this point is affected by statutes regulating the remedies 
 of the creditors. In one case where the law allowed a 
 creditor to sue without obtaining judgment, it was held 
 that the statute began to run from the time when the debt 
 was due. 3 In another case where the law allowed a 
 creditor to issue an attachment for fraud, it was held that 
 the statute began to run from the time when he could 
 have issued an attachment. 4 In another case where the 
 right of a creditor was suspended by an appeal from his 
 judgment, it was held that the statute did not begin to 
 run until a judgment was rendered- by an appellate tribu- 
 nal. 5 When the property is such that it can not be taken 
 on execution, the statute does not begin to run until after 
 the recovery of a judgment and the return of an execution 
 unsatisfied. 6 If the grantee is also administrator, he can 
 not plead the statute of limitations. 7 As a purchaser at a 
 sale under an execution succeeds to the rights of the exe- 
 cution creditor, his right to the property will be barred at 
 the time when the right of the creditor would have been 
 barred. 8 
 
 ford, 16 Tex. 286 ; Musselman v. Kent, 33 Ind. 452 ; Marr v. Rucker, 1 
 Humph. 348. In the last case it was held that the statute did not begin 
 to run until a judgment was rendered in the State where the property was. 
 
 ' Wilson v. Buchanan, 7 Gratt. 334 ; Dodd v. McCraw, 8 Ark. 83. 
 
 s Pickett v. Pickett, 3 Dev. 6 ; Hoke v. Henderson, 3 Dev. 12 ; Dobson 
 v. Erwin, 4 Dev. & Bat. 201 ; 1 Dev. & Bat. 569 ; Beach v. Catlin, 4 
 Day, 284 ; Law v. Smith, 4 Ind. 56. 
 
 "Mulloy v. Paul, 2 Tenn. Ch. 156. "Rogers v. Brown, "61 Mo. 187. 
 
 6 Martel v. Somers, 26 Tex. 551. 
 
 6 Gates v. Andrews, 37 N. T. 637 ; Eyre v. Beebe, 28 How. Pr. 333. 
 
 1 Stephens v. Barnett, 7 Dana, 257. 
 
 s Porter v. Cocke, Peck, 30 ; Rogers v. Brown, 61 Mo. 187 ; vide Hager. 
 v. Shindler, 29 Oal. 47 ; Stewart v. Thompson, 32 Cal. 260. In Pickett v. 
 
564 REMEDIES. 
 
 Limitations Kun 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 justice 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 sub- 
 serviency 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 com- 
 mence to run until the discovery of the fraud. 1 Although 
 a denial of notice of the fraud is a negative proposition, 
 yet the complainant must aver it in his bill, and it is incum- 
 bent on him to offer some evidence in support of the aver- 
 ment to rebut the presumption arising from the lapse of 
 time. 2 If no issue is made by the pleadings and no evi- 
 dence is offered in regard to the time of the discovery, it 
 will be deemed to have been made at the time of the 
 transfer. 3 
 
 Mere suspicion of fraud is not sufficient to allow the 
 statute to begin to run. It is necessary to bring home to 
 the creditor a knowledge of the facts constituting the 
 fraud. The statute only begins 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 
 
 Pickett, 3 Dev. 6, it was held that the statute began to run as against a 
 purchaser from the date of the sale although he did not obtain his deed 
 until afterwards. 
 
 1 McLure v. Ashby, 7 Rich. Eq. 430 ; Eigleberger v. Kibler, 1 Hill Ch. 
 113 ; Martin v. Smith, 1 Dillon, 85; s. c. 4 N. B. E. 275 ; Means v. Feas- 
 ter, 4 Rich. (N. S.) 249 ; Wynne v. Cornelison, 52 Ind. 312; vide Rogers 
 v. Brown, 61 Mo. 187. 
 
 ! Erickson v. Quinn, 3 Lans. 299 ; s. c. 47 N. Y. 410 ; Carr v. Hilton, 
 1 Curt. 390, 230 ; Baldwin v. Martin, 35 N. T. Sup. 85. Contra, McLure 
 v. Ashby, 7 Rich. Eq. 430 ; Shannon v. White, 6 Rich. Eq. 96 ; Means v. 
 Eeaster, 4 Rich. (N. S.) 249. 8 Bobb v. Woodward, 50 Mo. 95. 
 
REMEDIES. 565 
 
 proper diligence have been obtained. 1 Positive informa- 
 tion, however, is not required. The notice will be suffi- 
 cient to prevent the suspension of the statute, if it be such 
 as would put a reasonably diligent man upon the inquiry. 2 
 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 himself, 
 he must proceed diligently, for the statute in such case will 
 not be suspended. 3 If the conveyance is voluntary, know- 
 ledge by the creditor of the existence of the conveyance 
 and of the indebtedness of the grantor without knowledge 
 that the conveyance is voluntary and without considera- 
 tion, can not be deemed knowledge of the facts constituting 
 the fraud. Until he learns the fact last mentioned he can 
 not be said to have discovered the fact constituting the 
 fraud. Although the main question of fact upon which the 
 invalidity of the conveyance depends is the intent to de- 
 fraud creditors, yet that intent is a mere conclusion or infer- 
 ence from other facts. The fundamental fact from which 
 the conclusion of a fraudulent intent is drawn is the absence 
 of any valuable consideration, and so long as the creditor 
 is ignorant of that essential and controlling fact the statute 
 ought not to run against him. 4 The ignorance of an execu- 
 tor will not prevent the running of the statute when the 
 facts were known to the testator. 5 Independently of the 
 
 "Shannon v. White, 6 Rich. Eq. 96; Abbey v. Bank, 31 Miss. 434; 
 Snodgrass v. Bank, 25 Ala. 161 ; Brickson v. Quinn, 47 N. Y. 410 ; s. c. 
 3 Lans. 299. 
 
 » Hathaway v. Noble, 55 N. H. 508 ; Carr v. Hilton, 1 Curt. 230, 390 ; 
 Martin v. Smith, 1 Dillon, 85 ; s. c. 4 N. B. R. 275. 
 
 3 McLure v. Ashby, 7 Rich. Eq. 430 ; Wood v. Carpenter, 101 U. S. 
 135. 
 
 4 Erickson v. Quinn, 47 N. Y. 410 ; s. c. 3 Lans. 299. 
 
 - Lott v. DeGraffenreid, 10 Rich. Eq. 346. 
 
566 REMEDIES. 
 
 statute, delay alone may be sufficient to deprive the com- 
 plainant of his right to recover. 1 If the original transfer 
 has been rendered valid by the lapse of time, it can not be 
 impeached collaterally by assailing a purchase made with 
 the proceeds of the property. 2 
 
 Complainant must have Superior Equity. — A party 
 in a court of equity who asks to have his own equitable 
 rights enforced and a conveyance annulled which he in- 
 sists is unconscionable and fraudulent, must by clear and 
 indubitable evidence show that he has superior equity to 
 all against whom he seeks relief. If he invokes the aid 
 of a court of equity, he must not ask to have superior 
 equity set aside to let him into the relief sought. 3 
 
 The Decree. — If the special prayers for relief are 
 inapt, the court, under the prayer for general relief, may 
 grant any appropriate relief consistent with the case made 
 by the bill. 4 No decree, however, can be founded upon 
 evidence, and in relation to matters which are not put in 
 issue between the parties. A creditor, therefore, can not 
 impeach a transfer on a ground not taken in his bill, 5 or 
 obtain a decree to affect a transfer which the bill does not 
 allege to be fraudulent. 6 When there is no fraud in the 
 transfer, the bill must be dismissed, although the con- 
 sideration therefor is inadequate. 7 If the transfer is found 
 
 1 Huston v. Cantril, 11 Leigh, 136. "- Bobb v. Woodward, 50 Mo. 95. 
 
 3 Bridgford v. Riddle, 55 111. 261 ; Preston v. Twiner, 36 Iowa, 671. 
 
 * Annin v. Annin, 24 N. J. Eq. 184. 
 
 6 Roberts v. Gibson, 6 H. & J. 116 ; Tripp v. Vincent, 3 Barb. Ch. 
 613 ; Bailey v. Ryder, 10 N. Y. 363 ; Hovey v. Holcomb, 11 111. 660 ; 
 Parkhurst v. McGraw, 24 Miss. 134 ; Nicholson v. Leavitt, 4 Sandf. 252 ; 
 S. c. 6 N. Y. 510 ; 10 N. Y. 591 ; Myers y. Sheriff, 21 La. An. 172; Bach- 
 man v. Sepulveda, 39 Cal. 688 ; Ontario Bank v. Root, 3 Paige, 478. 
 
 6 Wilson v. Horr, 15 Iowa, 489 ; Hunter v. Hunter, 10 W. Va. 321. 
 
 ' Smith v. Pate, 3 Rich. (N. S.) 204. 
 
REMEDIES. 567 
 
 to be void, the decree should not be a personal decree 
 against the grantee for the debt, 1 or for the value of the 
 property where that may still be reached by the credi- 
 tors, 2 but should be a decree vacating the transfer. If 
 a decree is made for a sale, it may be made without 
 ordering any conveyance to be made by either the debtor 
 or the grantee. 3 When the transfer is annulled, the court 
 may leave the creditor to enforce his execution at law, 
 when the property can be so reached, or, having assumed 
 jurisdiction of the cause and subject matter, may proceed 
 to do full and complete justice by directing a sale of the 
 property. 4 If the property was purchased in part with 
 the debtor's money and conveyed to another, the convey- 
 ance may be allowed to stand upon the payment of the 
 amount so used. 5 If the property in such case has depre- 
 ciated, the loss arising from a depreciation may be appor- 
 tioned according to the respective sums invested by the 
 debtor and purchaser. 6 Where the bill is filled by a pur- 
 chaser under an execution, a decree setting aside the con- 
 veyance is sufficient 7 The decree may, however, not 
 merely divest the title of the defendant, but may proceed 
 to vest that title in the complainant. 8 It has, however, 
 
 1 Patterson v. McKinney, 97 111. 41. 
 
 2 Phipps v. Sedgwick, 95 TJ. S. 3 ; s. c. 12 Blatch. 163; S. o. 5 Ben. 
 184 ; s. C. 5 N. B. R. 168 ; S. c. 10 N. B. R. 28. 
 
 3 Cole v. Tyler, 65 N. Y. 73. Contra, Van Wyck v. Baker, 17 ST. Y. 
 Supr. 39. 
 
 4 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 ; 
 Chatauqua 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 v. Winne, 3 How. Pr. 127. 
 
 6 Oliver v. Moore, 26 Ohio St. 298. 
 
 6 Shaeffer v. Fithian, 26 Ohio St. 282. 
 
 ' Hagar v. Shindler, 29 Cal. 47. 
 
 -Ames v. Gilmore, 59 Mo. 537 ; Kenealy v. Macklin, 2 Mo. Ap. 241. 
 
568 REMEDIES. 
 
 been held that if the execution creditor was the purchaser, 
 the purchase might be disregarded and the property sold to 
 satisfy the judgment. 1 A provision in the decree that the 
 defendant shall release to the complainant merely quiets 
 the title, but does not confer an independent, substantial 
 title under the defendant, so as to bar a claim of dower. 2 
 Although a decree declares a deed void as to creditors, yet 
 if their debts are paid the decree is satisfied and is no 
 longer of any effect. 8 If the decree directs a sale of the 
 property, a purchaser obtains a good title although the 
 grantee dies after the decree but before the sale, for he 
 connects his title with that held by the debtor before the 
 fraudulent conveyance was made, and the decree binds 
 the grantee and his heirs and representatives. 4 When a 
 creditor brings a suit to procure 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 re- 
 main in the grantee's hands. 3 
 
 How far 'Judgment conclusive. — Although an as- 
 signee of the grantee recovers a judgment in action con- 
 cerning the property against the grantor and grantee, yet 
 it is not conclusive against a creditor of the grantor 6 A 
 decree is conclusive as against the parties to the suit in all 
 subsequent actions relating to the same subject matter 
 
 whether it annuls 7 or establishes 8 the conveyance. A 
 
 f ■ 
 
 1 Apperson v. Burgett, 33 Ark. 328 ; Bennett v. Hutson, 33 Ark. 762. 
 
 2 Woodworth v. Paige, 5 Ohio St. 70. 
 
 8 Rawson v. Fox, 65 111. 200. 4 Beaumont v. Fletcher, 24 Ohio St. 445. 
 
 s Ward v. Enders, 20 111. 519 ; Ballentine v. Beall, 4 111. 203 ; Kaupe 
 v. Bridge, 2 Robt. 459 ; Bostwick v. Menck, 40 N. Y. 383 ; Kerr v. 
 Hutchins, 46 Tex. 384. 
 
 6 Raymond v. Richmond, 78 N. Y. 351. 
 
 1 In re Hussman, 2N.B.E. 437. 
 
 6 In re James S. Antisdel, 18 N. B. R. 289 ; Downer v. Powell, 25 Vt. 
 336. 
 
REMEDIES. 569 
 
 creditor against whom a judgment has been rendered in an 
 action instituted by him to set aside the conveyance can 
 not intervene in a subsequent action instituted by another 
 creditor as to the claim in controversy in the prior suit, 
 but may as to a claim not then in controversy. 1 But a 
 decree in an action between a creditor and the debtor is 
 not conclusive in a subsequent suit between the assignee 
 in bankruptcy of the debtor and the grantee. 2 A decree 
 between the assignee in bankruptcy of the debtor and the 
 grantee is not conclusive in a subsequent action between a 
 judgment creditor whose judgment is a lien on the prop- 
 erty and the grantee. 3 A judgment in an action of eject- 
 ment by the grantee against an executor of the grantor is 
 not a bar to a subsequent action by a creditor to vacate 
 the conveyance if the executor did not set up the fraud, 
 although an executor can impeach a fraudulent convey- 
 ance. 4 
 
 Distribution. — If several creditors are parties to the 
 proceedings, 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. 5 
 The decree virtually and necessarily establishes the claims 
 of all the originally suing creditors, unless some of them 
 are especially excepted by the decree itself. But such 
 decree only establishes the claim as a debt due from the 
 debtor, without prejudice to third persons; and conse- 
 quently, if any others who have been allowed to come in 
 as parties to the suit can show fraud, or any other cir- 
 cumstance by which it appears that the debt so established 
 
 1 O'Brien v. Browning, 18 N. Y. Supr. 179. 
 
 ° Bradley v. Hunter, 50 Ala. 265. s Fisher v. Lewis, 69 Mo. 629. 
 
 4 Hills v. Sherwood, 48 Cal. 386. 6 Codwise v. Gelston, 10 Johns. 507. 
 
570 REMEDIES. 
 
 ought not be permitted to stand in the way of their inter- 
 ests, it may be then shown. 1 
 
 Creditors at Large. — Upon a bill filed by simple con- 
 tract creditors, a distribution is made ratably among all 
 the creditors, preserving, however, the rights of those who 
 have liens upon the property. 3 
 
 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. 3 To constitute a lien, the bill must be 
 filed against the grantee and not against the debtor alone. 4 
 The filing of the bill must also be followed up by service 
 of process. 5 If creditors file separate bills, they are 
 entitled to priority of payment in the order in which they 
 commence their suits. 6 When the property can not be 
 
 1 Rhodes v. Amsinck, 38 Md. 345. 
 
 2 Day v. Washburn. 24 How. 352 ; Robinson v. Stewart, 10 N. T. 189 ; 
 Barton v. Bryant, 2 Ind. 189 ; McNaughton v. Lamb, 2 Ind. 642 ; vide 
 Wallace v. Treakle, 27 Gratt. 479. 
 
 8 Chittenden v. Brewster, 2 Wall. 191 ; Hartshorne v. Eames, 31 Me. 
 93 ; Newell v. Morgan, 2 Harring. 225 ; 2 Del. Ch. 20 ; Newdigate v. Lee, 
 9 Dana, 17 ; Bank v. Burke, 4 Blackf. 141 ; Ballentine v. Beall, 4 111. 
 203 ; Spader v. Davis, 5 Johns. Ch. 280 ; Albany Bank v. Scherrnerhom, 
 1 Clarke Ch. 297 ; Jeffries v. Cochrane, 47 Barb. 557 ; Cummings v. 
 McCullough, 5 Ala. 324 ; Moffat v. Ingham, 7 Dana, 495 ; Barrett v. 
 Read, Wright, 700 ; Peacock v. Tompkins, Meigs, 317 ; Gracey v. Davis, 
 3 Strobh. Eq. 55 ; Stanton v. Keyes, 14 Ohio St. 443 ; Maiders v. Culver, 
 1 Duvall, 164 ; Crawford v. Kirksey, 55 Ala. 282 ; Young v. Gillespie, 12 
 Heisk. 239 ; Cole v. Marple, 98 111. 58 ; Brooks v. Gibson, 7 Lea, 271 ; 
 Clark v. Brockway, 1 Abb. Ap. 352 ; vide Peacock v. Tompkins, Meigs, 
 317; Chase v. Searles, 45 N. H. 511. 
 
 4 Fields v. Sands, 8 Bosw. 685 ; Conger v. Sands, 19 How. Pr. 8 ; 
 Miller v. Sherry, 2 Wall. 237. 
 
 6 Boynton v. Rawson, 1 Clarke, 584 ; Herrington v. Herrington, 27 
 Mo. 560. 
 
 Hone v. Henriquez, 13 Wend. 240 ; S. c. 2 Edw. 120 ; Moffat v. 
 Ingham, 7 Dana, 495 ; Fields v. Sands, 8 Bosw. 685 ; Boynton v. Raw- 
 son, 1 Clarke, 584. 
 
REMEDIES. 571 
 
 taken on execution, it is not the return of an execution 
 unsatisfied, but the filing of a bill that gives a lien. If 
 the party whose execution is first returned unsatisfied 
 delays, a subsequent execution will gain a preference by 
 superior vigilance in filing a bill. 1 The filing of a bill will 
 also give a prior lien upon the personal 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 priority. 2 
 
 Priority of Liens. — The equitable lien created by the 
 filing of a bill is subject to any valid lien which may 
 happen to exist in favor of any other creditor at the time 
 of the service of the process. 3 But the lien of a judgment 
 on real estate previously conveyed by the debtor is merely 
 a quasi lien and liable to be divested by subsequent 
 equities. Consequently if a junior judgment creditor files 
 a bill to set aside the conveyance, he obtains a right to 
 priority over the lien of a senior judgment as a reward for 
 his diligence. 4 If the senior judgment creditor issues an 
 execution after the service of process under the bill, a pur- 
 chaser at a sale under the execution will take the prop- 
 erty subject to the equitable lien created by the filing of 
 the bill, for he stands in no better attitude than any other 
 
 1 Weed v. Pierce, 9 Cow. 722 ; Edmeston v. Lyde, 1 Paige, 637 ; Beck 
 v. Burdett, 1 Paige, 305 ; Grover v. Wakeman, 4 Paige, 23 ; s. c. 11 
 Wend. 187. 
 
 8 Scouton v. Bender, 3 How. Pr. 185 ; Weed v. Pierce, 9 Cow. 722 ; 
 Albany Bank v. Schermerhorn, Clarke Ch. 297 ; Warden v. Browning, 
 19 N. T. Supr. 497. 
 
 3 Lane v. Lutz, 1 Keyes, 203 ; s. o. 3 Abb. Ap. 19 ; Scouton v. Bender, 
 3 How. Pr. 185 ; Haleys v. Williams, 1 Leigh, 140. 
 
 4 Lyon v. Robbing, 46 111. 276 ; Rappelley v. International Bank, 93 
 111. 396 ; Wood v. Wright, 4 Fed. Rep. 511 ; Burt v. Keyes, 1 Plippin, 
 61 ; Miller v. Sherry, 2 Wall. 237. Contra, Scouton v. Bender, 3 How. 
 Pr. 185 ; Hubbs v. Bancroft, 4 Ind. 388. 
 
572 REMEDIES. 
 
 purchaser pendente lite} This principle appears to be as 
 applicable to personal property as to real estate, but the 
 authorities are the other way. 2 If the grantee while the 
 bill is pending reconveys the land to the debtor, who im- 
 mediately mortgages it to another creditor, the creditor 
 who files the bill is entitled to priority over the mortgagee. 3 
 Creditors who obtain judgments while the bill is pending 
 are entitled to be paid according to the lien of their 
 respective judgments. 4 A purchaser at a sale by a trustee 
 appointed under the bill acquires all the rights of the 
 parties to the suit, and therefore has a title superior to 
 that of a subsequent purchaser at a sale under an execution 
 issued upon a judgment rendered before the filing of the 
 bill. 5 
 
 Costs. — Costs are peculiarly within the discretion of 
 the court. They are usually allowed to thp successful 
 party. 6 In cases of constructive fraud they may be paid 
 out of the fund. 7 When the transaction is such as would 
 naturally induce a creditor to call for an explanation, the 
 bill may be dismissed without costs if he is unsuccessful. 8 
 
 1 Scott v. Coleman, 5 "Mon. 73 ; Dargan v. Waring, 11 Ala. 988 ; 
 Crawford v. Kirksey, 55 Ala. 282. Contra, Watson v. New York Central 
 E. R. Co., 6 Abb. Pr. (1ST. S.) 91. 
 
 5 Davenport v. Kelly, 42 N. Y. 193 ; Storm v. Waddell, 2 Sandf. Ch. 
 494 ; Lansing v. Eaton, 7 Paige, 364. 
 
 3 Scott v. McMillen, 1 Litt. 302. 
 
 4 Haleys v. Williams, 1 Leigh, 140. 
 
 8 Scott v. Coleman, 5 Mon. 73 ; Miller v. Sherry, 2 Wall, 237 ; Dargan 
 v. Waring, 11 Ala. 988. Contra, Chautauqua County Bank v. Risley, 19 
 N. Y. 369. 
 
 • Webb v. Daggett, 2 Barb. 9 ; How v. Camp, Walk. Ch. 427. 
 
 7 Grover v. Wakeman, 11 Wend. 187 ; s. c. 4 Paige, 23 ; Saunders v. 
 Turbeville, 2 Humph. 272; Fiedler v. Day, 2 Sandf. 594; Ericks,on v. 
 Quinn, 47 N. Y. 410 ; s. c. 3 Lans. 299. 
 
 8 White v. Sansom, 3 Atk. 410 ; Houghton v. Tate, 3 Y. & J. 486 ; 
 Holmes v. Penney, 3 K. & J. 90 ; Townsend v. Westacott, 4 Beav. 58 ; 
 
REMEDIES. 573 
 
 If the case is one of peculiar hardship to the creditor, 1 or 
 if the conduct of the defendant does not meet with the 
 approbation of the court, 2 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. 3 The costs of a person who is a necessary 
 party may be allowed out of the fund when he has been 
 guilty of no fraud. 4 If the conveyance was voluntary the 
 costs may be paid out of the fund, if the donee did not 
 know of the indebtedness and was not intentionally a party 
 to the fraud. 5 Except in case of a gross abuse of the trust, 
 an assignee claiming under a voluntary assignment is not 
 usually charged with costs. 6 In the case of a creditor's 
 bill, the counsel fees for the complainant's solicitor may 
 be allowed out of the fund. 7 
 
 s. c. 9 L. J. Ch. 241 ; 2 Beav. 340 ; Hale v. Saloon Omnibus Co., 4 Drew, 
 492 ; s. c. 28 L. J. Ch. 777 ; Magawley's Trust, 5 De G. & S. 1 ; 
 McArthur v. Hoysradt, 11 Paige, 495 ; Jacks v. Tunno, 3 Dessau, 1 ; 
 Cunningham v. Freeborn, 11 Wend. 241 ; s. c. 1 Edw. 256 ; 3 Paige, 537 ; 
 Stern v. Fisher, 32 Barb. 198; Cox v. Piatt, 32 Barb. 126 ; s. c. 19 How. 
 Pr. 121 ; Niolon v. Douglass, 2 Hill Ch. 443 ; Pomeroy v. Manin, 2 Paine, 
 476 ; Webb v. Daggett, 2 Barb. 9 ; Wakefield v. Gibbon, 1 Giff. 401 ; Kent 
 v. Eiley, L. E. 14 Eq. 191. 
 
 1 Hickman v. Quinn, 6 Yerg. 96. 
 
 2 Clark v. Bailey, 2 Strobh. Eq. 143 ; Miller v. Halsey, 4 Abb. Pr. 
 (N. S.) 28. 
 
 8 Byers v. Fowler, 12 Ark. 218. 
 
 4 Norcut v. Dodd, 1 Cr. & Ph. 100 ; Townsend v. Westacott, 4 Beav. 
 58 ; s. c. 9 L. J. Ch. 241 ; 2 Beav. 340. 
 
 5 Erickson v. Quinn, 47 N. Y. 410 ; s. 0. 3 Lans. 299. 
 
 « Webb v. Daggett, 2 Barb. 9. 
 
 ' Strike v. M'Donald, 2 H. & G. 191 ; s. c. 1 Bland, 57 ; Goldsmith v. 
 Eussell, 5 De G. & M. 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. 1 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 admissions, are competent 
 evidence against him and all who claim under him either 
 mediately or immediately by a subsequent title. 2 His 
 declarations, 3 notes, 4 and accounts, 5 are prima facie evi- 
 dence of the existence of the debts they respectively pur- 
 port to represent. But admissions made after the transfer 
 are not competent evidence. 8 
 
 Judgments. — The record of a judgment rendered 
 against the debtor is competent evidence against the 
 
 1 Garnons v. Knight, 5 B. & C. 671 ; Candler v. Fisher, 11 Md. 332 ; 
 Mahany v. Lazier, 16 Md. 69 ; Conillard v. Duncan, 88 Mass. 440 . Stanbro 
 v. Hopkins, 28 Barb. 265 ; Ingram v. Phillips, 3 Strobh. Ch. 565 ; Cook v. 
 Hopper, 23 Mich. 511 ; Mean v. Hicks, 65 Ala. 241. 
 
 2 Richards v. Swan, 7 Gill. 366 ; s. c. 2 Md. Ch. Ill ; Gamble v. John- 
 son, 9 Mo. 605; High v. Nelms, 14 Ala. 350; Satterwhite v. Hicks, Bus- 
 bee, 105 ; Hale v. Smith, 6 Me. 416 ; Dubose v. Young, 14 Ala. 139 ; 
 Goodgame v. Cole, 12 Ala. 77. 
 
 8 Eagan v. Kennedy, 1 Tenn. 91 ; Satterwhite v. Hicks, Busbee, 105 ; 
 Dwight v. Brown, 9 Conn. 83. 
 
 4 High v. Nelms, 14 Ala. 350 ; Poster v. Wallace, 2 Mo. 231 ; Feagan 
 v. Cureton, 19 Geo. 404. 
 
 <■ Richards v. Swan, 7 Gill. 366 ; S. o. 2 Md. Ch. 111. 
 
 6 Redfleld v. Buck, 35 Conn. 328 ; Hitt v. Ormsbee, 12 111. 166 ; Town- 
 send v. Westacott, 2 Beav. 340 ; s. c. 9 L. J. Ch. 241 ; 4 Beav. 58. 
 
EVIDENCE. 575 
 
 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. 1 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. 2 A judg- 
 ment rendered against the debtor's administrator, whether 
 domestic 3 or foreign, 4 is not competent evidence against 
 the grantee. If a judgment is by confession the creditor 
 must prove it to be for a just debt. 5 In this respect there 
 is a distinction between 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 
 indulges no such presumption in favor of the latter. A 
 copy of a judgment, however, as against third parties is 
 merely evidence that the judgment has been rendered and 
 
 1 Railroad Co. v. Kyle, 5 Bosw. 587 ; Law v. Payson, 32 Me. 521 ; 
 Garrigues v. Harris, 17 Perm. 344 ; Garland v. Rives, 4 Rand. 282 ; Feagan 
 v. Cureton, 19 Geo. 404 ; Yogt v. Ticknor, 48 1ST. H. 242 ; Easley v. Dye, 
 14 Ala. 158 ; Clayton v. Brown, 30 Geo. 490 ; Snodgrass v. Bank, 25 Ala. 
 161 ; Reed v. Davis, 22 Mass. 388 ; Prescott v. Hayes, 43 U. H. 593 ; 
 Tappan v. Nutting, Brayt. 137 ; Hinde v. Longworth, 11 Wheat. 199 ; 
 Goodnow v. Smith, 97 Mass. 69 ; Clark v. Anthony, 31 Ark. 546. 
 
 2 Young v. Pate, 4 Yerg. 164 ; Vogt v. Ticknor, 48 N. H. 242 ; Rail- 
 road Co. v. Kyle, 5 Bosw. 587 ; Jenness v. Berry, 17 N. H. 549 ; Garland 
 v. Rives, 4 Rand. 282. 
 
 8 McDowell v. Goldsmith, 24 Md. 214 ; S. C. 6 Md. 219 ; S. c. 2 Md. Ch. 
 370 ; Baker v. Welch, 4 Mo. 484 ; Osgood v. Manhattan Co., 3 Cow. 612 ; 
 Hills v. Sherwood, 48 Cal. 386. Contra, M'Laughlin v. Bank of Potomac, 
 7 How. 220 ; Chamberlayne v. Temple, 2 Rand. 384. 
 
 * King v. Clarke, 2 Hill Ch. 611. 
 
 6 Sanders v. , Holt, 327 ; S. C. Skinner, 586 ; Botts v. Cozine, 
 
 Hoff. Ch. 79 ; Brandt v. Stevenson, 3 Phila. 205 ; vide Woodwortli v. 
 Woodworth, 21 Barb. 343. 
 37 
 
576 EVIDENCE. 
 
 of the time of its rendition, but it does not operate as 
 proof of the time when the debt originated for which the 
 judgment was rendered. 1 
 
 Judgment not Conclusive. — A judgment may be im- 
 peached collaterally by proof that the court rendering it 
 had no jurisdiction, or that it was obtained by fraud or 
 collusion, 3 or that it was entered illegally, 3 but not beyond 
 this; and where a judgment in a personal action is not 
 liable to either of these objections, whether rendered upon 
 default or by confession or after contestation, it is conclu- 
 sive evidence to establish both the relation of debtor and 
 creditor between the parties to the record and the amount 
 of the indebtedness, and can not be collaterally impeached 
 in another suit where such relation and indebtedness are 
 called in question. 4 It can not be impeached collaterally 
 for mere irregularities, 5 or upon the ground that the action 
 should have been brought by another party. 6 The grantee 
 may, however, 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. 7 He may show 
 
 'Donley v. McKiernan, 62 Ala. 34; Snodgrass v. Bank, 25 Ala. 161. 
 
 2 Jenness v. Berry, 17 N. H. 549 ; Prescott v.' Hayes, 43 N. H. 593 ; 
 Miller v. Miller, 23 Me. 22 ; Law v. Payson, 32 Me. 521 ; Garland v. Rives, 
 4 Rand. 282 ; Church v. Chapin, 35 Vt. 223 ; Reed v. Davis, 22 Mass. 388 ; 
 Caswell v. Caswell, 28 Me. 232 ; Esty v. Long, 41 N. H. 103; Ingals v. 
 Brooks, 29 Vt. 398; Posten v. Posten, 4 Whart. 27. 
 
 3 Caswell v. Caswell, 28 Me. 232 ; Carter v. Bennett, 4 Pla. 283. 
 
 4 Sidensparker v. Sidensparker, 52 Me. 481 ; Ferguson v. Kumler, 11 
 Minn. 104 ; Candee v. Lord, 2 N. Y. 269 ; Starr v. Starr, 1 Ohio, 321 ; 
 Swihart v. Shaum, 24 Ohio St. 432 ; Scott v. Ind. Wagon Works* 48 Ind. 
 75 ; Cock v. Oakley, 50 Miss. 628; Pickett v. Pipkin, 64 Ala.520. 
 
 6 Carter v. Baker, 10 Heisk. 640. 
 6 Clark v. Anthony, 31 Ark. 546. 
 
 'Miller v. Miller, 23 Me. 22; Miller' v. Johnson, 27 Md. 6; Mattingly 
 v. Nye, 8 Wall. 370 ; Boutwell v. McClure, 30 Vt. 674. 
 
EVIDENCE. 577 
 
 that it was without consideration, 1 or that the debt 2 for 
 which it was rendered or the judgment itself 3 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, 4 or that the debt was really contracted 
 by the debtor as agent for another, 5 or that the judgment 
 is being used for the benefit of the debtor, 6 or that the 
 judgment is for a debt created after the transfer. 7 The 
 •right to inquire into the grounds of the judgment, how- 
 ever, does not extend so far as to give him the right to 
 retry an issue which has been litigated and determined 
 between the parties in accordance with the forms and 
 principles of law without fraud or collusion, 8 especially if 
 the action was for slander, trespass, malicious prosecution, 
 or a similar tort. 9 How far he may set up defenses which 
 the debtor omitted to make is a question that can not be 
 considered as settled. It has been held that he may show 
 that the debtor was a minor, 10 or that the debt was barred 
 
 1 Jenness v. Berry, 17 N. H. 549 ; Prescott v. Hayes, 43 N. H. 593 ; 
 Boutwell v. McClure, 30 Vt. 674; Sargent v. Salmond, 27 Me. 539 ; Gar- 
 land v. Bives, 4 Rand. 282 ; Church v. Chapin, 35 Vt. 223 ; Reed v. Davis, 
 22 Mass. 388 ; Posten v. Posten, 4 Whart..27 ; Hall v. Hamlin, 2 Watts, 
 354; King v. Tharp, 26 Iowa, 283 ; Miller v. Johnson, 27 Md. 6. 
 
 2 Mattingly v. Nye, 8 Wall. 370 ; Reed v. Davis, 22 Mass. 388 ; Ingalls 
 v. Brooks, 29 Vt. 398. 
 
 8 Boutwell v. McClure, 30 Vt. 674. 
 
 A Warner v. Percy, 22 Vt. 155 ; Hall v. Hamlin, 2 Watts, 354. 
 5 Teed v. Valentine, 65 N. Y. 471. 
 
 6 Feagan v. Cureton, 19 Geo. 404; Boutwell v. McClure, 30 Vt. 674; 
 Esty v. Long', 41 N. H. 103. 
 
 7 Miller v. Miller, 23 Me. 22 ; Miller v. Johnson, 27 Md. 6 ; Mattingly 
 v. Nye, 8 Wall. 370. 
 
 8 Jenness v. Berry, 17 N. H. 549; Garland v. Rives, 4 Rand. 282 •; 
 Church v. Chapin, 35 Vt. 223 ; Candee v. Lord, 2 N. Y. 269 ; Ferguson v. 
 Kumler, 11 Minn. 104; Sidensparker v. Sidensparker, 52 Me. 481. 
 
 9 Sidensparker v. Sidensparker, 52 Me. 481. 
 10 Edmunds v. Mister, 58 Miss. 765. 
 
578 EVIDENCE. 
 
 by the statute of limitations before the commencement of 
 the suit in which the judgment was rendered, 1 or that the 
 debt arose out of a contract which was void as against 
 public policy, 3 or that the contract was void on account of 
 usury. 3 On the other hand, it has been held that he 
 could not show that the note on which the judgment was 
 rendered was made on Sunday. 4 
 
 Limited to Pleadings. — Evidence to establish the 
 fraud must be confined to the pleadings, for the facts 
 which the pleadings admit can not be varied or contra- 
 dicted. The only purpose of evidence is to establish 
 what is alleged by one party and denied by the other. 5 
 To establish the controverted facts, proof is the end and 
 evidence is the means. Proof establishes the truth. Evi- 
 dence only tends towards it. Any pertinent and legiti- 
 mate facts conducing to the proof of a litigated fact are 
 evidence of it, either weaker or stronger, according to 
 their entire character and complexion. 6 Evidence which 
 tends to prove an issue contributes to its establishment 
 and assists in giving a leaning to the mind in its considera- 
 tion or determination. That which is directed to an end, 
 however, may not necessarily attain it. It may be re- 
 ceived as evidence if it has this tendency, but it is not to 
 be treated as conclusive or as necessarily warranting the 
 fact which it tends to establish. Evidence, however, may 
 
 1 Warner v. Dove, 33 Md. 579 ; McDowell v. Goldsmith, 24 Md. 214 ; 
 S. C 2 Md. Ch. 370; S. c. 6 Md. 319. Contra, Clark v. Anthony, 31 Ark. 
 546. 
 
 2 Bruggerman v. Hoerr, 7 Minn. 337. 
 
 3 Taylor v. Eubanks, 3 A. K. Marsh. 239. Contra, Hislop v. Hoover, 
 68 N. C. 141. 
 
 4 Jenness v. Berry, 17 N. H. 549. 
 
 5 Parkhurst v. McGraw, 24 Miss. 134. 
 
 6 Miles v. Edelen, 1 Duvall, 270. 
 
EVIDENCE. 579 
 
 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 controverted fact, tend to justify 
 the inference of its existence. 1 
 
 Admissibility. — In questions of fraud a wide range of 
 evidence is allowed. 2 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. To interpret their meaning, or the full 
 meaning of any one of them, it may be necessary to bring 
 them together and contemplate them all in one view. In 
 order to do this it is necessary to pick up one here and 
 another there until the collection is complete. A wide 
 latitude of evidence is therefore allowed in order that 
 fraud may be detected and exposed. This principle arises 
 from necessity and is established for the protection of 
 society and the benefit of morals. Each detached piece 
 of evidence is not therefore to be rejected as it is offered, 
 because it is apparently trivial. 3 Any fact however slight, 
 if at all relevant to the issue, is admissible. 4 It is not 
 easy to draw the precise line separating those circum- 
 stances which are fairly admissible from those which 
 ought to be excluded. The true test is whether the evi- 
 dence can throw light upon the transaction or is altogether 
 irrelevant. 5 The relevancy of a given fact, however, does 
 
 ' Davenport v. Cummings, 15 Iowa, 219. 
 
 '' Covanhovan v. Hart, 21 Penn. 495 ; Garrigues v. Harris, 17 Penn. 
 344 ; Ferris v. Irons, 83 Penn. 179. 
 
 3 Blue v. Penniston, 27 Mo. 272. 
 
 4 Waters v. Dashiell, 1 Md. 455 ; Curtis v. Moore, 20 Md. 93 ; Balto. 
 & Ohio E. K. Co. v. Hoge, 34 Penn. 214. 
 
 6 Zerbe v. Miller, 16 Penn. 488 ; Heath v. Page, 63 Penn. 280 ; Blue v. 
 Penniston, 27 Mo. 272 ; Wright v. Linn, 16 Tex. 34 ; Cooke v. Cooke, 43 
 Md. 522. 
 
580 EVIDENCE. 
 
 not depend upon its force but upon its bearing. If it 
 bears either directly or indirectly with any weight what- 
 ever on the main controversy, or any material part of it, 
 it is admissible. 1 Evidence which has no connection with 
 the matters in issue, but merely tends to create a personal 
 prejudice against one of the parties, should be excluded. 2 
 So also if the whole evidence taken together would merely 
 raise a suspicion, it may be rejected. 3 
 
 Evidence of Secret Trust. — Sometimes the proof of 
 the fraudulent intent depends upon the establishment 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 be- 
 tween the parties to the transaction to be set up and 
 enforced by the cestui que trust or his representatives. It 
 is a question of fraud by reason of a secret trust with 
 fraudulent intent as affecting the validity 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 may be proved by any kind of evidence by 
 which fraud may be proved. 4 
 
 Res Gestae'. — In questions of fraud or bona fides an 
 adequate judgment can in general only be formed by hav- 
 ing a perfect view of the whole transaction, and this 
 includes the conversation which forms a part of it. The 
 
 * King v. Poole, 61 Geo. 373. 
 
 5 Carr v. Gale, Davies, 328 ; Davenport v. Wright, 51 PeDn. 292. 
 
 3 Boylston v. Carver, 11 Mass. 515. 
 
 4 McLane v. Johnson, 43 Vt. 48 ; Starr v. Starr, 1 Ohio, 321 ; Hills v. 
 Eliot, 12 Mass. 26 ; Blair v. Alston, 26 Ark. 41 ; Rice v. Cunningham, 
 116 Mass. 466 ; Robinson v. Bliss, 121 Mass. 428. 
 
EVIDENCE. 581 
 
 language which is used on any occasion forms a part of 
 the res gestce. The declarations and acts of the debtor 
 made before the transfer and contemporaneous with it are 
 admissible. 1 They are admissible in evidence in favor of 
 the grantee, 2 as well as of creditors. The acts 3 and decla- 
 rations of the grantee 4 which accompany the transfer stand 
 on the same footing as those of the debtor. So far as 
 the acts and declarations of the parties form a part of and 
 assist in giving character to the transaction, they constitute 
 a part of the res gestce and are competent evidence. 5 When 
 admitted they do not conclusively establish the fraud, but 
 are to be considered in connection with other evidence, 
 and to be governed as to their effect by the usual rules of 
 the law. 6 The declarations of an agent when they consti- 
 tute a part of the res gestce are also competent evidence. 7 
 
 1 McDowell v. Goldsmith, 6 Md. 319 ; s. C. 2 Md. Ch. 370 ; s. c. 24 Md. 
 214 ; Waters v. Riggin, 19 Md. 536 ; Badger v. Story, 16 N. H. 168 ; An- 
 gier v. Ash, 26 N. H. 99 ; Goodgame v. Cole, 12 Ala. 77 ; Elliott v. Stod- 
 dard, 98 Mass. 145 ; Sackett v. Spencer, 65 Penn. 89 ; York County Bank 
 v. 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 v. Bobbins, 18 La. An. 648 ; Heath 
 v. Page, 63 Penn. 280 ; Weil v. Silverstone, 6 Bush, 698 ; Peck v. Crouse, 
 46 Barb. 151 ; McLane v. Johnson, 43 Vt. 48 ; Pomeroy v. Bailey, 43 N. 
 H. 118 ; Wilson v. Forsyth, 24 Barb. 105 ; M'Kinney v. Rhoads, 5 Watts, 
 343; Wykoff v. Carr, 8 Mich. 44; Bates v. Ableman, 13 Wis. 644; Rea 
 v. Missouri, 17 Wall. 532 ; Walrath v. Campbell, 28 Mich. Ill ; Pearson v. 
 Forsyth, 61 Geo. 537 ; vide Alexander v. Gould, 1 Mass. 165 ; Reichart v. 
 Castator, 5 Binn. 109. 
 
 * Elliott v. Stoddard, 98 Mass. 145 ; Sackett v. Spencer, 65 Penn. 89 ; 
 Sweetzer v. Mead, 5 Mich. 107 ; vide Gruber v. Boyles, 1 Brev. 266; TJ. 
 S. v. Mertz, 2 Watts, 406 ; College v. Powell, 12 Gratt. 372. 
 
 3 Cuyler v. McCartney, 40 1ST. Y. 221 ; s. c. 33 Barb. 165. 
 
 4 Boyden v. Moore, 28 Mass. 362. 
 
 6 Claytor v. Anthony, 6 Rand. 285 ; Penn v. Scholey, 3 Esp. 243. 
 
 6 McDowell v. Goldsmith, 6 Md. 319 ; s. c. 2 Md. Ch. 370 ; s. c. 24 
 Md. 214. 
 
 ' Henschen v. Leichtemeyer, 49 Mo. 51 ; Kelly v. Campbell, 38 N. Y. 
 (Keyes) 29. 
 
582 EVIDENCE. 
 
 Prior Acts and Declarations. — In order to invali- 
 date a transfer for a valuable consideration, 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 participated in it. These propositions are, in 
 some measure, 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 proposi- 
 tions may be of different kinds and drawn from different 
 sources. It may apply separately to the two branches of 
 the case. Evidence in regard to the conduct and declara- 
 tions 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 fraudulent intent is to be inferred. 1 The com- 
 
 ' Bridge v. Eggleston, 14 Mass. 245 ; Clarke v. Waite, 12 Mass. 439 ; 
 Foster v. Hall, 29 Mass. 89 ; Blake v. White, 13 N. H. 267 ; Heath v. 
 Page, 63 Penn. 280 ; Howe v. Keed, 12 Me. 515 ; Landecker v. Houghtal- 
 ing, 7 Cal. 391 ; Mansir v. Crosby, 72 Mass. 334 ; Glllett v. Phelps, 12 
 Wis. 392 ; Davis v. Stern, 15 La. An. 177 ; Grooves v. Steele, 2 La. An. 
 480 ; Gray v. St. John, 25 111. 222 ; Winchester v. Charter, 97 Mass. 140 
 s. c. 102 Mass. 272 ; s. o. 94 Mass. 606 ; Sarle v. Arnold, 7 B. I. 582 
 Cook v. Moore, 65 Mass. 213 ; Kimmel v. M'Eight, 2 Penn. 38 ; Farmers 
 Bank v. Douglass, 19 Miss. 469; Guidry v. Grivot, 2 Martin (N. S.) 
 13 ; Chase v. Walters, 28 Iowa, 460 ; Wright v. Linn, 16 Tex. 34 ; Lynde 
 v. McGregor, 95 Mass. 172 ; McElfatrick v. Hicks, 21 Penn. 402 ; Booth 
 v. Bunce, 33 1ST. Y. 139 ; s. o, 24 ST. Y. 592 ; s. c. 35 Barb. 496 ; Treze- 
 vant v. Courtenay, 23 La. An. 628; Chase v. Chase, 105 Mass. 385; Hop- 
 kins v. Langton, 30 Wis. 379 ; Cooke v. Cooke, 43 Md. 522 ; Fullerton v. 
 Viall, 42 How. Pr. 294 ; Bishoff v. Hartley, 9 W. Va. 100 ; Tyler v. An- 
 
EVIDENCE. ' 583 
 
 petency of such evidence does not depend upon the time 
 when the act was done or the declaration was made. If 
 the act or declaration is so connected with the main fact 
 under consideration as to explain its character, further its 
 object, or to form in conjunction with it one continuous 
 transaction, the evidence is admissible without regard to 
 the time when the act was done or the declaration was 
 made. 1 But if the act or declaration was so long prior to 
 the transaction in controversy that it does not tend to 
 throw any light on it, the evidence is not admissible. 2 
 
 Other Fraudulent Transfers. — Evidence of other 
 fraudulent transfers at or about the time of the transfer in 
 controversy is also competent to prove the fraudulent 
 intent of the debtor, 3 although the grantee had no know- 
 ledge of such transfers, for proof of one fraudulent transfer 
 
 gevine, 15 Blatch. 536 ; Stewart v. Fenner, 81 Penn. 177 ; Stowell v. 
 Hazelett, 66 N. T. 635; Kurtz v. Miller, 26 Kans. 314. Contra, Beach 
 v. Catlin, 4 Day, ,284; Beed v. Smith, 14 Ala. 380; Oden v. Bippefctoe, 
 4 Ala. 68 ; Partelo v. Hams, 26 Conn. 480; Pettibone v. Phelps, 13 Conn. 
 445 ; Jones v. Norris, 2 Ala. 526 ; Adams v. Foley, 4 Iowa, 44 ; Prior v. 
 White, 12 111. 261 ; Curtis v. Moore, 20 Md. 93 ; Durkee v. Chambers, 57 
 Mo. 575. 
 
 1 Cooke v. Cooke, 43 Md. 522. s Weaver v. Ashcroft, 50 Tex. 427. 
 
 ' Livermore v. Northrop, 44 N. Y. 107 ; Crow v. Buby, 5 Mo. 484 ; 
 Cummings v. McCullough, 5 Ala. 324; Cram v. Mitchell, 1 Sandf. Ch. 
 251 ; Guerin v. Hunt, 6 Minn. 375 ; S. C. 8 Minn. 477 ; 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 ; 
 Fishery. True, 38 Me. 534; Howe v. Beed, 12 Me. 515 ; Ford v. Wil- 
 liams, 3 B. Mon. 550 ; Zerbe v. Miller, 16 Penn. 488 ; Deakers v. Temple, 
 41 Penn. 234 ; Sarle v. Arnold, 7 B. I. 582 ; Warren v. Williams, 52 Me. 
 343 ; Taylor v. Eobinson, 84 Mass. 562; Evans v. Matson, 56 Penn. 54; 
 Thomas v. 'Beck, 39 Conn. 241 ; Stockwell v. Silloway, 113 Mass. 384'; 
 Cooke v. Cooke, 43 Md. 522; Summers v. Howland, 2 Baxter, 407; 
 Prewitt v. Wilson, 103 TJ. S. 22 ; s. C. 3 Woods, 631 ; vide Brett v. Catlin, 
 57 Barb. 404 ; Mower v. Hanford, 6 Minn. 535 ; Christopher v. Covington, 
 
 2 B. Mon. 357. 
 
584 EVIDENCE. 
 
 tends to show that any other transfer made about the same 
 time was made for the same purpose. 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 character. 1 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. 2 The admissibility of such evidence is to be 
 determined according to the degree of its relation to the 
 transfer in controversy. It need not take place imme- 
 diately with it, provided it is calculated to unfold the 
 nature and quality of the fact it is intended to explain, 
 and so to harmonize with it as to constitute one transaction. 
 
 Declarations acted upon by Grantee. — Prior decla- 
 rations which are subsequently adopted and acted upon by 
 the grantee are competent evidence against him. 3 
 
 Declarations of Conspirators. — When several per- 
 sons are engaged in a common enterprise, each is respon- 
 sible for the declarations as well as the acts of the others. 
 If the connection and purpose are first established, the 
 
 1 Pierce v. Hoffman 24 Vt. 525. 
 
 5 Cohn v. Mulford, 15 Cal. 50 ; Staples v. Smith, 48 Me. 470 ; Hunt- 
 zinger v. Harper, 44 Perm. 204; McAulay v. Earnhart, 1 Jones (ST. C.) 
 502 ; Imray v. Magnay, 11 M. & W. 267 ; Flagg v. Willington, 6 Me. 
 386 ; Boyd v. Brown, 36 Mass. 453 ; Cook v. Swan, 5 Conn. 140 ; Blake 
 v. Howard, 11 Me. 202. 
 
 8 Cuyler v. McCartney, 40 N. Y. 221 ; s. c. 33 Barb. 165 ; Rea v. Mis- 
 souri, 17 Wall. 532. 
 
EVIDENCE. 585 
 
 declarations of one of the parties, while engaged in the 
 prosecution of this purpose, may be received against the 
 others. They are admissible as a part of the res gestae. 
 They constitute parts of the transaction on which the 
 rights of the creditors depend. The statements of a person 
 who has participated in an act are not considered as mere 
 hearsay, but as legitimate evidence of the act done, 1 and 
 are thus competent evidence against the others. 2 It con- 
 stitutes no objection to the admissibility of such declara- 
 tions that the plan was concocted before the party against 
 whom they are offered became an associate. By connect- 
 ing 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 res gestae, as much 
 as if he had been present and assented to each successive 
 step in carrying out and consummating the" fraud. 3 
 
 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 deter- 
 mine for itself whether other facts are sufficiently proved, 
 
 1 Stovall v. Farmers' Bank, 16 Miss. 305. 
 
 ! Jenne v. Joslyn, 41 Vt. 478; McDowell v. Rissell, 37 Penn. 164; 
 Lee v. Lamprey, 43 -N. H. 13 ; M'Kee v. Gilchrist, 3 Watts, 230 ; Rogers 
 v. Hall, 4 Watts, 359 ; Gibbs v. Neely, 7 Watts, 305 ; Trimble v. Turner, 
 21 Miss. 348 ; Tuttle v. Turner, 28 Tex. 759 ; Hartman v. Diller, 62 Penn. 
 37 ; Bredin v. Bredin, 3 Penn. 81 ; Kelsey v. Murphy, 26 Penn. 78 ; 
 Stewart v. Johnson, 18 Ni J. 87 ; Caldwell v. Williams, 1 Ind. 405 ; Cuyler 
 v. McCartney, 40 N. Y. 221 ; s. c. 33 Barb. 165 ; Waterbury v. Sturtevant, 
 18 Wend. 353; Beitenbach v. Reitenbach, 1 Rawle, 362; Claytor v. An- 
 thony, 6 Rand. 285 ; Abney v. Kingsland, 10 Ala. 355 ; Eaton v. Cooper, 
 29 Vt. 444 ; Borland v. Mayo, 8 Ala. 104 ; Stovall v. Farmers' Bank, 16 
 Miss. 305 ; Mamlock v. White, 20 Cal. 598 ; Tedrowe v. Esher, 56 Ind. 
 443 ; Sherman v. Hogland, 73 Ind. 472 ; Cordes v.Straszer, 8 Mo. Ap. 61. 
 
 3 Stewart v. Johnson, 18 N. J. 87. 
 
586 EVIDENCE. 
 
 and whether these facts are prima facie sufficient 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 considered by the jury 
 in forming their judgment on the whole case, who may 
 nevertheless negative the combination. 1 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 intro- 
 duction, 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 
 intent to defraud. 3 A very slight degree of concert or col- 
 lusion, however, is sufficient. 4 The retention of the pos- 
 session of personal property is sufficient 5 if it is of such 
 a character as to raise a presumption of a fraudulent 
 intent. 8 The retention of the possession of real estate is 
 not sufficient. 7 A statement of the debtor showing a 
 fraudulent intent made so near the grantee that he might, 
 and most probably did, hear it is sufficient. 8 The rela- 
 
 1 Claytor v. Anthony, 6 Band. 285; Hathaway v. Brown, 18 Minn. 
 414 ; Boyd v. Jones, 60 Mo. 454. 
 
 * Cuyler v. McCartney, 40 N. Y. 221 ; s. c. 33 Barb. 165 ; Claytor v. 
 Anthony, 6 Rand. 285 ; Abney v. Kingsland, 10 Ala. 355. 
 
 8 Cuyler v. McCartney, 40 N. Y. 221 ; s. o. 33 Barb. 165. 
 
 4 Hartman v. Diller, 62 Penn. 37 ; Crawford v. Bitter, 1 Penn. Supr. 29. 
 
 6 Caldwell v. Williams, 1 Ind. 405 ; Borland v. Mayo, 8 Ala. 104 ; 
 Waterbury v. Sturtevant, 18 Wend. 353. 
 
 6 Abney v. Kingsland, 10 Ala. 355 ; Wright v. Cornelius, 10 Mo. 174. 
 
 7 Tedrowe v. Esher, 56 Ind. 443. 
 "Stovall v. Farmers' Bank, 16 Miss. 305. 
 
EVIDENCE. 587 
 
 tion of husband and wife is not a sufficient foundation to 
 make his acts or declarations competent evidence against 
 her. 1 When the conspiracy is proved, a memorandum 
 made by the debtor even after the death of the grantee is 
 admissible in evidence. 2 
 
 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 trans- 
 fer, have not, in the absence of any proof of a conspiracy, 
 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 transaction. They are in 
 their nature hearsay and irrelevant. No person, more- 
 over, should be allowed to defeat his transfer by his own 
 acts or words. 3 If the declarations or acts are made or 
 
 1 Tripner v. Abrahams, 47 Perm. 220. 
 
 2 Confer v. McNeal, 74 Penn. 112. 
 
 3 Miner v. Phillips, 42 111. 128 ; Babb v. Clemson, 12 S. & E. 328 ; 
 Clements v. Moore, 6 Wall. 299 ; Poster v. Wallace, 2 Mo. 231; Steward 
 v. Thomas, 35 Mo. 202 ; Hessing v. McCloskey, 37 111. 341 ; 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 ; 
 s. C. 21 N. Y. 23 ; Bogart v. Haight, 9 Paige, 297 ; Ball v. Loomis, 29 ST. 
 T. 412 ; Savery v. Spaulding, 8 Iowa, 239 ; Norton v. Kearney, 10 Wis. 
 443 ; Myers v. Kenzie, 26 111. 36 ; Wynne v. Glidwell, 17 Ind. 446 ; Bates 
 v. Ableman, 13 Wis. 644; Burt v. McKinstry, 4 Minn. 204; Pickett v. 
 Pickett, 3 Dev. 6 ; Edgell v. Bennett, 7 Vt. 534 ; Gamble v. Johnson, 9 
 Mo. 605 ; Humphries v. McCraw, 9 Ark. 91 ; Scott v. Heilager, 14 Penn. 
 238 ; Eeed v. Smith, 14 Ala. 380 ; Foote v. Cobb, 18 Ala. 585 ; Strong v. 
 Brewer, 17 Ala. 706 ; McElfatrick v. Hicks, 21 Penn. 402 ; Wolf v. 
 Carothers, 3 S. & E. 240 ; Gridley v. Bingham, 51 111. 153 ; Taylor v. 
 Eobinson, 84 Mass. 562 ; Derby v. Gallup, 5 Minn. 119 ; Lormore v. 
 Campbell, 60 Barb. 62 ; Pier v. Duff, 63 Penn. 59 ; Sackett v. Spencer, 65 
 
588 EVIDENCE. 
 
 done with the assent of the grantee, 1 or if the debtor is 
 produced as a witness, 2 then they may be used as evidence 
 upon other grounds and not merely as intrinsically com- 
 petent of themselves. If the debtor and grantee are both 
 parties to the suit, the subsequent declarations of the debtor 
 are competent evidence against him. 3 
 
 Declarations in Possession. — When the debtor re- 
 mains in possession of the property, his acts and declara- 
 tions are competent evidence against the grantee. The 
 possession is a part of the res gestae, 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 collateral 
 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 charac- 
 
 Penn. 89 ; Cohn v. Mulford, 15 Cal. 50 ; Zimmerman v. Lamb, 7 Minn. 
 421 ; Winchester v. Charter, 97 Mass. 140 ; s. c. 102 Mass. 272 ; s. c. 94 
 Mass. 606 ; Aldrich v. Earle, 79 Mass. 578 ; Sutter v. Lackmann, 39 Mo. 
 91 ; Shaw v. Robertson, 12 Minn. 445 ; Kennedy v. Divine, 77 Ind. 490 ; 
 Pulliam v. Newberry, 41 Ala. 168; Weinrich v. Porter, 47 Mo. 293 ; Pa- 
 gan v. Kennedy, 1 Tenn. 91 ; Clark v. Johnson, 5 Day, 373 ; Phillips v. 
 Earner, 1 Esp. 355 ; Glenn v. Grover, 3 Md. 212 ; s. C. 3 Md. Ch. 29 ; 
 Collumb v. Eead, 24 N. Y. 505 ; Cuyler v. McCartney, 40 N. Y. 221 ; 
 s. C. 33 Barb. 165 ; Bennett v. McGuire, 5 Lans. 183 ; s. c. 58 Barb. 625 ; 
 Orr v. Gilmore, 7 Lans. 345 ; Hathaway v. Brown, 18 Minn. 414 ; Thorn- 
 ton v. Tandy, 39 Tex. 544 ; Holbrook v. Holbrook, 113 Mass. 74 ; Lough- 
 bridge v. Bowland, 52 Miss. 546 ; Garner v. Graves, 54'Ind. 188 ; Taylor 
 v. Webb, 54 Miss. 36 ; Bennett v. Stout, 98 111. 47 ; City Nat'l Bank v. 
 Hamilton, 34 N. J. Eq. 158. 
 
 1 Kendall v. Hughes, 7 B. Mon. 368 ; Rea v. Missouri, 17 Wall. 532. 
 
 n Borland v. Mayo, 8 Ala. 104 ; Venable v. Bank, 2 Pet. 107 ; Knight 
 v. Forward, 63 Barb. 311. 
 
 3 Stowell v. Hazelett, 66 N. Y. 635 ; Hairgrove v. Millington, 8 Kans. 
 480 ; White v. Perry, 14 W. Va. 66. 
 
EVIDENCE. 589 
 
 teme the very fact to be investigated. 1 The principle 
 applies to personal as well as real property, 2 and extends 
 to the declarations of any person in possession. 8 The pos- 
 session, however, must be actual, and not merely construc- 
 tive and inconsistent with the title of the grantee. 4 The 
 acts and declarations are admissible in favor of the grantee 
 as well as of creditors. 5 But before they can be received, 
 the possession must be shown to the satisfaction of the 
 court. 6 They are not, moreover, admissible to every con- 
 ceivable extent. As the ground of their admission is to 
 explain the possession, they are limited to such as are ex- 
 
 1 Askew v. Reynolds, 1 Dev. & Bat. 367 ; Marsh v. Hampton, 5 Jones 
 (N. C.) 382 ; Goodgame v. Cole, 12 Ala. 77; Cole v. Yarner, 31 Ala. 244 ; 
 Pomeroy v. Bailey, 43 N. H. 118 ; Ragan v. Kennedy, 1 Tenn. 91 ; Peck 
 v. Land, 2 Geo. 1 ; Paper Works v. Willett, 1 Robt. 131 ; Helfrich v. 
 Stem, 17 Penn. 143 ; Carnahan v. Wood, 2 Swan, 500 ; Abney v. Kings- 
 land, 10 Ala. 355 ; Waggoner v. Cooley, 17 111. 239 ; Currie v. Hart, 2 
 Sandf. Ch. 353 ; Adams v. Davidson, 10 N. Y. 309 ; Jacobs v. Remsen, 36 
 N. Y. 668 ; Babb v. Clemson, 10 S. & R. 419 ; s. C 12 S. & R. 328 ; 
 Blake v. White, 13 1ST. H. 267 ; Foster v. Woodfln, 11 Ired. 339; Robin- 
 son v. Pitzer, 3 W. Ya. 335 ; Redfield v. Buck, 35 Conn. 328 ; Caldwell 
 v. Rose, 1 Smith, 190 ; Reed v. Smith, 14 Ala. 380 ; Parnsworth v. Bell, 
 5 Sneed, 531 ; Neal v. Peden, 1 Head, 546 ; Grant v. Lewis, 14 Wis. 487 ; 
 Deakers v. Temple, 41 Penn. 234; Carrolton Bank v. Cleveland, 15 La. 
 An. 610 ; Willies v. Parley, 3 C. & P. 395 ; Wilbur v. Strickland, 1 Rawle, 
 458 ; Grant v. Lewis, 14 Wis. 487 ; Blake v. Graves, 18 Iowa, 312 ; Ca- 
 hoon v. Marshall, 25 Cal. 197; Newlin v. Lyon, 49 N". Y. 661; Caswell 
 v. Hill, 47 N". H. 407 ; Burgert v. Borchert, 59 Mo. 80 ; Jones v. King, 86 
 111. 225 ; Glaze v. Blake, 56 Ala. 379 ; Hilliard v. Phillips, 81 N. C. 99 ; 
 Oatis v. Brown, 59 Geo. 711 ; Carney v. Carney, 7 Baxter, 284 ; U.S. v. 
 Griswold, 8 Fed. Rep. 556 ; Mills v. Thompspn, 72 Mo. 367. 
 
 2 McBride v. Thompson, 8 Ala. 650. 
 
 » Walcott v. Keith, 22 N. H. 196 ; Kendall v. Hughes, 7 B. Mon. 368 ; 
 Haynes v. Leppig, 40 Mich. 602; Comm. v. Fletcher, 6 Bush, 171. 
 
 4 Trotter v. Watson, 6 Humph. 509 ; Donaldson v. Johnson, 2 Chand. 
 160; Ford v. Williams, 13 N.*Y. 577; s. c. 24 N. Y. 359; Mayer v. 
 Clark, 40 Ala. 259. 
 
 5 Waters v. Biggin, 19 Md. 536 ; Walcott v. Keith, 22 N. H. 196 ; Up- 
 son v. Raiford, 29 Ala. 188 ; vide Williams v. Kelsey, 6 Geo. 365. 
 
 6 Thomas v. De Graffenreid, 17 Ala. 602. 
 
590 EVIDENCE. 
 
 planatory of it. Anything beyond this is no part of the 
 thing done, and consequently is inadmissible, 1 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. 2 It is upon this ground 
 that evidence of other contemporaneous transfers between 
 the same parties is admissible. 3 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. 1 The principle applies also to 
 subsequent transfers. 5 But even though fraud is proved 
 in other transfers it is not conclusive. The whole con- 
 duct of the parties with reference to the property trans- 
 ferred may be shown as bearing upon the question of good 
 faith or fraudulent intent. 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 
 
 1 Abney v. Kingsland, 10 Ala. 355 ; McBride v. Thompson, 8 Ala. 650; 
 Borland v. Mayo, 8 Ala. 104; Christopher v. Covington, 2 B. Mon. 357 ; 
 vide Burckmyers v. Mairs, Biley, 208 ; McCord v. McCord, 3 Bich. (N. 
 S.) 577. 
 
 2 Erfort v. Consalus, 47 Mo. 208 ; Tedrowe v. Esher, 56 Ind. 443. 
 
 3 Van Kirk v. Wilds, 11 Barb. 520 ; Amsden v. Manchester, 40 Barb. 
 158 ; Gibbs v. Neely, 7 Watts, 305 ; M'llvoy v. Kennedy, 2 Bibb, 380 ; 
 Benham v. Cary, 11 Wend. 83 ; dimming v. Fryer, Dudley, 182 ; Trotter 
 v. Watson, 6 Humph. 509 ; Pierson v. Tom, 1 Tex. 577 ; Helfrich v. 
 Stem, 17 Penn. 143 ; Belt v. Raguet, 27 Tex. 471 ; Price v. Mahoney, 24 
 Iowa, 582 ; Erfort v. Consalus, 47 Mo. 208 ; McCabe v. Brayton, 38 N. 
 Y. 196 ; Engraham v. Pate, 51 Geo. 337 ; Smith v. Schmed, 9 Fed. Rep. 
 483 ; Knowlton v. Moseley, 105 Mass. 136. 
 
 4 Willuuns v. Bobbins, 81 Mass. 590 ; Sutter v. Lackman, 39 Mo. 91 ; 
 Grant v. Libby, 71 Me. 427. 
 
 6 Lynde v. McGregor, 95 Mass. 172. 6 Collumb v. Read, 24 N. Y. 505. 
 
EVIDENCE. 591 
 
 the parties at the beginning and give tone to the original 
 purpose. 1 Such subsequent acts are also admissible in 
 favor of the grantee. 2 The transfer, however, must be 
 judged by its terms and in the light of the contemporane- 
 ous and subsequent acts of the parties. These furnish the 
 data for the determination of the intent and motives with 
 which it was made. 3 
 
 Contemporaneous Acts. — 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 reasonable- 
 ness of their conduct and to throw light upon their mo- 
 tives. It may be shown that the grantor was indebted, 4 
 or intoxicated, 5 or reputed to be in embarrassed circum- 
 stances, 6 or that suits were pending against him, 7 or that 
 he subsequently' became insolvent. 8 Proof of a subsequent 
 
 1 Flanigan v. Lampman, 12 Mich. 58 ; Dallam v. Renshaw, 26 Mo. 
 533 ; Wilson v. Ferguson, 10 How. Pr. 175 ; Wright v. Linn, 16 Tex. 34; 
 Forbes v. Waller, 25 N. Y. 430 ; s. c. 4 Bosw. 475 ; s. C. 25 How. Pr. 
 166 ; Carr v. Gale, Davies, 328 ; Snodgrass v. Bank, 25 Ala. 161 ; Blue v. 
 Penniston, 27 Mo. 272 ; Warren v. Williams, 52 Me. 343 ; Starin v. Kelly, 
 36 ST. Y. Sup. 366 ; Dambmann v. Butler, 4 T. & C. 542. 
 
 2 Cecil Bank v. Snively, 23 Md. 253 ; Helfrich v. Stem, 17 Penn. 143 ; 
 Graham v. Lockhart, 8 Ala. 9 ; Creagh v. Savage, 14 Ala. 454. 
 
 8 Forbes v. Waller, 25 N". Y. 430 ; s. c. 4 Bosw. 475; s. 0. 25 How. 
 Pr. 166. 
 
 4 Hamet v. Dundass, 4 Penn. 175 ; Manhattan Co. v. Osgood, 15 Johns. 
 162; s. C. 3 Cow. 612; Covanhovan v. Hart, 21 Penn. 495 ; Helfrich v. 
 Stem, 17 Penn. 143 ; Smith v. Henry, 2 Bailey, 118 ; s. o. 1 Hill, 16 ; 
 Williams v. Banks, 11 Md. 198 ; s. c. 19 Md. 22 ; Mills v. Howeth, 19 
 Tex. 257 ; Waters v. Dashiell, 1 Md. 455 ; King v. Bailey, 6 Mo. 575 ; 
 Stewart v. Fenner, 81 Penn. 177. 
 
 6 Delaware v. Ensign, 21 Barb. 85. 
 
 6 Sweetster v. Bates, 117 Mass. 466. 
 
 ' Harrell v. Mitchell, 61 Ala. 270 ; Barber v. Terrell, 54 Geo. 146 ; 
 Jones v. King, 86 111. 225. 
 
 8 King v. Poole, 61 Geo. 373 ; Smith v. Chenault, 48 Tex. 455. 
 
 38 
 
592 EVIDENCE. 
 
 mortgage which covered all the grantor's property is evi- 
 dence as tending to prove his condition as to' solvency at 
 the time of the conveyance. 1 Evidence of the value of 
 the property is competent. 2 It may also be shown that 
 the grantee was unable to purchase the property, 3 or that 
 the statements in a written instrument are false/ or that 
 receipts between the parties are fraudulent, 5 or that the 
 debtor made the transfer known, 6 or that he concealed a 
 part of his property. 7 Evidence that the grantee was en- 
 deavoring to buy a similar piece of property, 8 or that the 
 transfer was conducted in the ordinary way in which such 
 transactions are conducted, 9 is not competent, for it has no 
 tendency to prove that the transfer was bona fide or for 
 a valuable consideration. But evidence that the grantee 
 had the money before the purchase is admissible. 10 Evi- 
 dence of the character either of the debtor 11 or of the 
 grantee 12 is not admissible, for character is not directly 
 in issue by the nature of the controversy. Heavy 
 purchases immediately preceding the transfer may be 
 
 I Sweetster v. Bates, 117 Mass. 466. 
 
 II Stacy v. Deshaw, 14 N. Y. Supr. 449. 
 
 3 Borland v. Mayo, 8 Ala. 104; Demeritt v. Miles, 22 N. H. 523; 
 M'llvoy v. Kennedy, 2 Bibb, 380 ; Hyman v. Bailey, 13 La. An. 450 ; 
 Amsden v. Manchester, 40 Barb. 158 ; Belt v. Eaguet, 27 Tex. 471 ; Steb- 
 bins v. Miller, 94 Mass. 591 ; Bea v. Missouri, 17 Wall. 532 ; Johnson v. 
 Lovelace, 51 Geo. 18 ; Sweetster v. Bates, 117 Mass. 466 ; McConnell v. 
 Martin, 52 Ind. 454; vide Derby v. Gallup, 5 Minn. 119 ; Cook v. Swan, 
 
 5 Conn. 140. 4 Peake v. Stout, 8 Ala. 647. 
 
 6 Bait. & Ohio R. R. Co. v. Hoge, 34 Penn. 214. 
 
 6 Paper Works v. Willett, 1 Robt. 131. 
 
 7 Wilson v. Forsyth, 24 Barb. 105 ; Guerin v. Hunt, 8 Minn. 477 ; s. c. 
 
 6 Minn. 375. 8 McCullock v. Doak, 68 N. C. 267. 
 
 8 Mulford v. Tunis, 37 N. J. 256. 
 
 ao Winfleld v. Adams, 34 Mich. 437. 
 
 31 Gutzweiler v. Lackman, 23 Mo. 168 ; Church v. Drummond, 7 Ind. 17. 
 "M'Kinney v. Rhoads, 5 Watts, 343; Holmesley v. Hogue, 2 Jones 
 (N. C.) 391. 
 
EVIDENCE. 593 
 
 shown. 1 The declarations of one grantee are not admis- 
 sible against another who holds with him as tenant in 
 common. 2 The fact of an attorney's advice to the grantee 
 may be shown. 3 
 
 Witness can not Testify to Another's Intent. — 
 The intent with which an act is done is to be ascertained 
 from the circumstances surrounding it, and from the acts 
 and declarations of the parties, and is therefore a deduc- 
 tion or inference from facts ; consequently a witness can 
 not testify in regard to the intentions of another, for he 
 must speak of facts within his own knowledge, and not of 
 inferences that he may draw from facts that may be 
 known to him. 4 The debtor 5 and the grantee 6 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 
 
 1 Curtis v. Moore, 20 Md. 93. 
 
 2 Manhattan Co. v. Osgood, 3 Cow. 612 ; s. c. 15 Johns. 162 ; Gra- 
 ham v. Lockhart, 8 Ala. 9 ; Governor v. Campbell, 17 Ala. 566 ; Cuyler 
 v. McCartney, 40 N. Y. 221 ; s. c. 33 Barb. 165. 
 
 3 Goodgame v. Cole, 12 Ala. 77 ; Nicholson v. Leavitt, 4 Sandf. 252 ; 
 s. c. 6 N. Y. 510 ; s. c. 10 N. Y. 591 ; Fisher v. True, 38 Me. 534 ; vide 
 Lee v. Lamprey, 43 N. H. 13. 
 
 4 Peake v. Stout, 8 Ala. 647 ; Spaulding v. Strang, 36 Barb. 310 ; s. c. 
 32 Barb. 235 ; 37 N. Y. 135 ; 38 N. Y. 9 ; Mattison v. Demarest, 4 Robt. 
 161 ; Hathaway v. Brown, 22 Minn. 214. 
 
 6 Forbes v. Waller, 4 Bosw. 475 ; s. c. 25 N. Y. 430 ; s. c. 25 How. 
 Pi-. 166 ; Paper Works v. Willett, 1 Kobt. 131 ; Law v. Payson, 32 Me. 
 521 ; Seymour v. Beach, 4 Vt. 493 ; Wolf v. Carothers, 3 S. & R. 240 ; 
 Miner v. Phillips, 42 111. 123 ; Spaulding v. Strang, 36 Barb. 310; s. c. 32 
 Barb. 235 ; 37 N. Y. 135 ; 38 N. Y. 9 ; Forbes v. Logan, 4 Bosw. 475 ; 
 Matthews v. Poultney, 33 Barb. 127; Seymour v. Wilson, 14N.Y. 567; 
 Watkins v. Wallace, 19 Mich. 57; Mulford v. Tunis, 37 N.J. 256; Reeves 
 v. Shry, 39 Tex. 634, 
 
 6 Bedell v. Chase, 34 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 ; Snow v. Paine, 114 Mass. 520. 
 
594 EVIDENCE. 
 
 the transaction, and is not conclusive, 1 and unless it is 
 supported by other evidence, is entitled to but little 
 weight. 2 A party to the transfer can pot be asked whether 
 it was made for an improper purpose, for that is a mere 
 inquiry as to his opinion ; nor can he be asked whether he 
 understood that the transfer was for an improper purpose, 
 for that allows him to draw his conclusions. 3 The debtor's 
 mere suppositions in regard to his solvency are inadmis- 
 sible. 4 
 
 Recitals in Deeds are Prima Facie. — As the pre- 
 sumption is always in favor of fairness, the statement of 
 the payment of the consideration in an instrument is 
 jorwna facie evidence of the fact. 5 It is, however, the 
 
 1 Bates v. Ableman, 13 Wis. 644 ; Newman v. Cordell, 43 Bard. 448 ; 
 Loker v. Haynes, 11 Mass. 498 ; Brown v. Osgood, 25 Me. 505 ; Griffin 
 v. Marquavdt, 21 N. Y. 121 ; s. 0. 17 N. Y. 28 ; Keteltas v. Wilson, 36 
 Barb. 298 ; s. c. 23 How. Pr. 69 : vide Hathaway v. Brown, 18 Minn. 
 414. 
 
 2 Atwood v. Impson, 20 N. J. Eq. 150 ; Work v. Ellis, 50 Barb. 512 ; 
 Kittering v. Parker, 8 Ind. 44; Borland v. Walker, 7 Ala. 269. 
 
 3 Blant v. Gabler, 77 N. Y. 461 ; s. c. 8 Daly, 48. 
 
 4 Ogden v. Peters, 15 Barb. 560 ; s. c. 21 N. Y. 23. 
 
 6 Glenn v. Grover, 3 Md. 212 ; s. o. 3 Md. Ch. 29 ; Faringer v. Ramsay, 
 2 Md. 365 ; s. c. 4 Md. Ch. 33 ; Glenn v. Randall, 2 Md. Ch. 220 ; Moore 
 v. Blondheim, 19 Md. 172 ; Stockett v. Holliday, 9 Md. 480 ; Mayfleld v. 
 Kilgour, 31 Md. 240 ; Marden v. Babcock, 43 Mass. 99 ; Every v. Edger- 
 ton, 7 Wend. 259 ; Foster v. Hall, 29 Mass. 89 ; Lutton v. Hesson, 18 
 Penn. 109 ; Clark v. Depew, 25 Penn. 509 ; Hundley v. Buckner, 14 Miss. 
 70 ; Hempstead v. Johnston, 18 ArK. 123 ; Brown v. Bartee, 18 Miss. 268 ; 
 Splawn v. Martin, 17 Ark. 146 ; Brinley v. Spring, 7 Me. 241 ; Merrill v. 
 Williamson, 35 111. 529 ; Gates v. Labeaume, 19 Mo. 17 ; Mandel v. Peay, 
 20 Ark. 325 ; Rindskoff v. Gugnenheim, 3 Cold. 284 ; Shontz v. Brown, 
 27 Penn. 123. Contra, Merrill v. Locke, 41 N. H. 486 ; Kimball v. Fen- 
 ner, 12 N. H. 248 ; Prescott v. Hayes, 43 N. H. 593 ; Belknap v. Wen- 
 dell, 21 N. H. 175 ; Ferguson v. Clifford, 37 N. H. 86 ; Claywell v. Mc- 
 Gimpsie, 4 Dev. 89 ; Fermester v. McRorie, 12 Ired. 287 ; Governor v. 
 Campbell, 17 Ala. 566 ; Branch Bank v. Kinsey, 5 Ala. 9 ; McCain v. 
 Wood, 4 Ala. 258 ; McGintry v. Reeves, 10 Ala. 137 ; McCaskle v. Ama- 
 
EVIDENCE. 595 
 
 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 ; 1 and therefore where there is any evi- 
 dence of fraud there must be other proof of the consider- 
 ation. 2 The declarations of the debtor, not made in the 
 presence of the grantee, are not admissible to prove the 
 consideration. 3 But declarations of the debtor prior to 
 the alleged inception of the fraud are admissible in favor 
 of the grantee. 4 Proof can not be given of the payment 
 of the consideration after the commencement of the suit. 5 
 
 When Proof of Consideration Material. — A deed 
 executed in good faith passes the interest of the grantor 
 in the property of the grantee, whether any consideration 
 is actually paid or not as between the parties to it. 6 It is 
 
 rine, 12 Ala. 17 ; Dolin v. Gardner, 15 Ala. 758 ; Ferguson v. Gilbert, 16 
 Ohio St. 88; Yogt v. Ticknor, 48 N. H. 242 ; Brown v. Knox, 6 Mo. 302; 
 College v. Powell, 12 Gratt. 372 ; Crow v. Ruby, 5 Mo. 484; Kinnard v. 
 Daniel, 13 B. Mon. 496 ; Hubbard v. Allen, 59 Ala. 283 ; Horton v. 
 Dewey, 53 Wis. 410. 
 
 1 Clapp v. Tirrell, 37 Mass. 247 ; Clark v. Depew, 25 Penn. 509 ; Mor- 
 ris Canal Co. v. Stearns, 23 N. J. Eq. 414 ; U. S. v. Griswold, 8 Fed. Rep. 
 556. 
 
 8 Whitaker v. Garnett, 3 Bush. 402 ; Redfleld Manuf. Co. v. Dysart, 62 
 Penn. 62 ; Allen v. Cowan, 28 Barb. 99 ; S. c. 23 N. T. 502 ; Rogers v. 
 Hall, 4 Watts, 359 ; Zerbe v. Miller, 16 Penn. 488 ; Mead v. Phillips, 1 
 Sandf. Ch. 83. 
 
 " Yardley v. Arnold, 1 Car. & M. 434 ; Hooper v. Edwards, 18 Ala. 
 280 ; Colquitt v. Thomas, 8 Geo. 258 ; Taylor v. Moore, 2 Rand. 563 ; 
 Coole v. Braham, 3 Exch. 183; TJ. S. v. Mertz, 2 Watts, 406; Whiting 
 v. Johnson, 11 S. & R. 328 ; Wilson v. Hillhouse, 14 Iowa, 199 ; Barber 
 v. Terrell, 54 Geo. 146. Gontra, Moss v. Dearing, 45 Iowa, 530. 
 
 4 Dwight v. Brown, 9 Conn. 83 ; Morris Canal Co. v. Stearns, 23 N. J. 
 Eq. 414. 6 Angrave v. Stone, 45 Barb. 35. 
 
 6 Bank v. Housman, 6 Paige, 526 ; Doe v. Hurd, 8 Blackf. 310 ; Jack- 
 son v. Garnsey, 16 Johns. 189 ; Cunningham v. Dwyer, 23 Md. 219. 
 
596 EVIDENCE. 
 
 only when an instrument is assailed by creditors that the 
 amount and character of the consideration become mate- 
 rial. In such controversies it is. a leading principle that 
 no evidence is admissible which contradicts the deed or 
 changes its character. 1 The kind of consideration deter- 
 mines whether the instrument belongs to the class of deeds 
 known as bargains and sales, or covenants to stand seized 
 to uses, and to whichever class it belongs its character can 
 not be changed by parol evidence. 2 
 
 What Evidence of Consideration Admissible. — If no 
 consideration is expressed in a deed, evidence of a con- 
 sideration may be given. 3 If the deed purports to be for 
 a valuable consideration, evidence may be given of an 
 additional consideration of the same kind as that so set 
 forth. 4 This additional consideration may consist either 
 of money paid to the grantor's creditors, 5 or an indebted- 
 ness due to the grantee, 6 or a liability as indorser, 7 or the 
 grantee's note, 8 or a claim for damages, 9 or future ad- 
 vances, 10 or marriage, 11 or any other valuable considerar 
 
 ' Betts v. Union Bank, 1 H. & G. 175 ; Galbraith v. Cook, 30 Ark. 
 417. 2 Cunningham v. Dwyer, 23 Md. 219. 
 
 'Peacock v. Monk, 1 Ves. Sr. 127; Howell v. Elliott, 1 Dev. 76; 
 Banks v. Brown, 1 Biley Ch. 131 ; s. c. 2 Hill Ch. 558. 
 
 4 Anderson v. Tydings, 3 Md. Ch. 167 ; Bullard v. Briggs, 24 Mass. 
 533 ; Banks v. Brown, 1 Riley Ch. 131 ; s. C. 2 Hill Ch. 558 ; Cunning- 
 ham v. Dwyer, 23 Md. 219 ; McNeal v. Glenn, 4 Md. 87 ; s. c. 3 Md. Ch. 
 349. 
 
 5 Glenn v. Randall, 2 Md. Ch. 220 ; Waters v. Riggin, 19 Md. 536. 
 
 6 Anderson v. Tydings, 3 Md. Ch. 167 ; Buffum v. Green, 5 JST. H. 71 ; 
 Cunningham v. Dwyer, 23 Md. 219 ; Credle v. Carrawan, 64 N". C. 422 ; 
 Hubbard v. Allen, 59 Ala. 283. 
 
 ' McKinster v. Babcock, 26 N. Y. 378. 
 
 8 Mayfleld v. Kilgour, 31 Md. 240. 
 
 9 Fellows v. Emperor, 13 Barb. 92. 
 
 10 Craig v. Tappin, 2 Sandf. Ch. 78 ; Bank v. Finch, 3 Barb. Ch. 293 ; 
 Lawrence v. Tucker, 23 How. 14 ; Cole v. Albers, 1 Gill. 412 ; Shirras v. 
 Craig, 7 Cranch. 34. " Leach v. Shelby, 58 Miss. 681. 
 
EVIDENCE. 597 
 
 tion. 1 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, 3 or a deed founded 
 upon a valuable consideration. 4 
 
 Prom other Parties. — It is not necessary that the 
 proof should show that the consideration passed imme- 
 diately 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 any fraudulent 
 intent, C. may maintain his title to the property by prov- 
 ing 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 im- 
 peached by a creditor of B. on that account, for a decla- 
 ration of trust may at any time afterwards be executed, 
 or A. may confide in the integrity of O., and it is a matter 
 only between A. and C. whether the trust be executed or 
 not. In the case supposed B. has r obtained the value of 
 his land, and his creditors are not necessarily injured. 5 
 
 Contemporaneous Deeds. — For the purpose of repel- 
 ling any imputation of fraud it may be shown that a 
 
 •Tyler v. Carlton, 7 Me. 175. 
 
 ! Jones v. Slubey, 5 H. & J. 372 ; Bireley v. Staley, 5G.&J. 432 ; 
 Pettibone v. Stevens, 15 Conn. 19. 
 
 * Baxter v. Sewell, 3 Md. 334 ; S. 0. 2 Md. Ch. 447 ; Walker v. Bur- 
 rows, 1 Atk. 93 ; Wickes v. Clark, 8 Paige, 161 ; s. c. 3 Edw. Ch. 58 ; 
 Kidgeway v. Underwood, 4 Wash. C. C. 129 ; McKinley v. Combs, 1 Mon. 
 105 ; Felder v. Harper, 12 Ala. 612. 
 
 4 Cunningham v. Dwyer, 23 Md. 219; Harvey v. Alexander, 1 Band. 
 219. 
 
 'Bullard v. Briggs, 24 Mass. 533 ; Harvey v. Alexander, 1 Rand. 219. 
 
598 EVIDENCE. 
 
 deed was made in consideration of another instrument of 
 the same date. Whether they constitute parts of the 
 same transaction depends upon all the surrounding cir- 
 cumstances 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. 1 
 
 Notes and Judgments. — Evidence may be given to 
 show what was the consideration of a note which purports 
 to be for value received. 2 A judgment confessed in the 
 name of one person may be shown by parol to have been 
 given for debts due to others. 3 
 
 Consideration can not be Varied. — A deed purport- 
 ing to be for a valuable consideration can not be set up as 
 a gift. 4 If it purports to be given for love and affection, 
 proof of a valuable consideration is inadmissible. 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. 5 Under the expression 
 "other good causes and considerations," the considerations 
 of love and affection may be shown. 8 A difference be- 
 
 1 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. 
 
 2 Harris v. Alcock, 10 G. & J. 226. 
 
 insurance Co. v. Wallis, 23 Md. 173; Harris v. Alcock, 10 G. & J. 
 226 ; Groschen v. Thomas, 20 Md. 234. 
 
 4 Hildreth v. Sands, 2 Johns. Ch. 35; s. c. 14 Johns. 493; 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. 361 ; McNeal v. Glenn, 4 Md. 87; a. c. 3 
 Md. Ch. 349 ; Hindes v. Longworth, 11 Wheat. 199 ; Baxter v. Sewell, 3 
 Md. 334; s. C. 2 Md. Ch. 447; Bean v. Smith, 2 Mason, 252 ; Potter v. 
 Gracie, 58 Ala. 303 ; vide Henderson v. Dodd, 1 Bailey Ch. 138. 
 
 "Pomeroy v. Bailey, 43 N. H. 118. 
 
EVIDENCE. 599 
 
 tween the debts described as the consideration of a deed 
 and those offered in evidence, either as to names, dates or 
 amounts, does not necessarily affect the validity of the 
 instrument, but at most merely furnishes grounds for an 
 unfavorable presumption. 1 
 
 Evidence on Various Points. — The grantee may 
 prove his ignorance of the grantor's insolvency. 3 The 
 debtor's schedules in bankruptcy, 3 and his prior offers to 
 sell the property to other persons, 4 are not competent evi- 
 dence. It may be shown that up to the time of the trans- 
 fer the debtor was applying his means in discharge of his 
 debts. 5 Prooffthat the grantor used part of his property 
 in paying his debts at a subsequent time is not competent 
 where no connection in time and purpose is shown between 
 the payment and the transfer. 6 A letter from the debtor 
 to the grantee notifying him of the execution of a mort- 
 gage in his favor is admissible. 7 A verdict setting aside 
 the transfer for fraud in another suit between other par- 
 ties, 8 or the issuing of an attachment by another creditor, 
 is not competent evidence. 9 Proof may be given of decla- 
 rations made by the grantee prior to the transfer of an 
 intention to assist the debtor to evade the claims of his 
 creditors. 10 Declarations by the debtor of mere abstract 
 opinions — as, for instance, that a man ought to secure 
 something for his family — are irrelevant. 11 
 
 1 Graham v. Lockhart, 8 Ala. 9 ; Pomeroy v. Mania, 2 Paine, 476. 
 2 Filley v. Register, 4 Minn. 391. 
 
 3 Carr v. Gale, Davies, 328 ; Hathaway v. Brown, 18 Minn. 414 ; Bar J 
 ber v. Terrell, 54 Geo. 146. 
 
 4 Tifts v. Bunker, 55 Me. 178 ; Fisher v. True, 38 Me. 534. 
 
 6 Mower v. Hanford, 6 Minn. 535. 
 
 6 Rice v. Cunningham, 116 Mass. 466. 
 
 ' Sweetzer v. Mead, 5 Mich. 107. 
 
 s Mower v. Hanford, 6 Minn. 535. " Miner v. Phillips, 42 111. 128. 
 
 10 Foster v. Thompson, 71 Mass. 453 ; Helt'rich v. Stem, 17 Penn. 143. 
 
 11 Whitins v. Johnson, 11 S. & R. 328. 
 
600 EVIDENCE. 
 
 Burden of Proof. — It is a universal principle both at 
 law and in equity that the law never presumes fraud. 
 Odiosa et mhonesta non sunt m lege prcesumenda et m 
 facto quod se habet ad bonum et malum de bono quam malo 
 prcesumendum est. The burden of proof, therefore, rests 
 upon the creditors whenever they assail a transfer for 
 fraud. 1 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 baffle 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 daylight. 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 established by circum- 
 stantial evidence. 3 
 
 1 Thornton v. Hook, 36 Cal. 223 ; Foster v. Hall, 29 Mass. 89 ; Nichols 
 v. Patten, 18 Me. 231 ; Blaisdell v. Cowell, 14 Me. 370 ; Fifield v. Gas- 
 ton, 12 Iowa, 218; Bell v. Hill, 1 Hayw. 72; Sutter v. Lackman, 39 Mo. 
 91 ; Elliott v. Stoddard, 98 Mass. 145 ; Miller v. Finn, 1 Neb. 254 ; 
 Pringle v. Sizer, 2 Rich. (N. S.) 59 ; Brewer v. Gay, 24 La. An. 35 ; Hath- 
 away v. Brown, 18 Minn. 414; Grant v. Ward, 64 Me. 239; Morga#v. 
 Alvey, 53 Ind. 6 ; Wilds v. Bogan, 55 Ind. 331 ; Darling v. Hurst, 39 
 'Mich. 765 ; Pratt v. Pratt, 96 111. 184 ; Hamilton v. Bishop, 22 Iowa, 211. 
 
 8 Bullock v. Narrott, 49 111. 62 ; Kempner v. Churchill, 8 Wall. 362 ; 
 Floyd v. Goodwin, 8 Yerg. 484 ; Sibley v. Hood, 3 Mo. 290 ; Wright v. 
 Grover, 27 111. 426 ; King v. Moon, 42 Mo. 551 ; Newman v. Cordell, 43 
 Barb. 448 ; Hicks v. Stone, 13 Minn. 434 ; Pope v. Andrews, 1 S. & M. 
 Ch. 135 ; Land v. Jeffries, 5 Rand. 599 ; Rogers v. Hall, 4 Watts, 359 ; 
 Curtis v. Moore, 20 Md. 93 ; McConihe v. Sawyer, 12 N. H. 396 ; Kane v. 
 Drake, 27 Ind. 29 ; Chapman v. O'Brien, 34 N. Y. Sup. 524; Rea v. Mis- 
 souri, 17 Wall. 532 ; Farmer v. Calvert, 44 Ind. 209 ; Burgert v. Bor- 
 chert, 59 Mo. 80 ; Means v. Feaster, 4 Rich. (N. S.) 249 ; Thames v. Rim- 
 bert, 63 Ala. 561 ; Tognini v. Kyle, 15 Nev. 464 ; State v. Estel, 6 Mo. 
 Ap. 6 ; Kurtz v. Miller, 26 Kans. 548. 
 
EVIDENCE. 601 
 
 Mode of Proof. — 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. 1 
 These acts and declarations, and all the concomitant cir- 
 cumstances, must be established, and then the motive may 
 be deduced from them in accordance with those principles 
 which are shown by experience and observation to rule 
 human conduct. 2 The proof in each case will consequently 
 depend upon its own circumstances. 3 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. Quae tingula non prosunt, juncta juvant. 
 Although the evidence is generally circumstantial it is 
 often as potent as direct testimony. Sometimes a combi- 
 nation of circumstances characterizes 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 pro- 
 nounce it fraudulent. These indicia are often the clearest 
 proof and quite as reliable as positive evidence. 4 
 
 Fraud may be Presumed. — It is sometimes said that 
 fraud can never be presumed, but the fact that it is gen- 
 erally established by circumstantial evidence shows that 
 this expression is incorrect. The law never presumes 
 
 1 Babcock v. Eckler, 24 N". T. 623. s Filley v. Register, 4 Minn. 391. 
 
 3 Huff v. Roane, 22 Ark. 184 ; Harrell v. Mitchell, 61 Ala. 270. 
 
 4 Newman v. Cordell, 43 Barb. 448 ; Boies v. Henney, 32 111. 130 ; 
 Hopkins v. Sievert, 58 Mo. 201. 
 
602 EVIDENCE. 
 
 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 presumption. Fraud is estab- 
 lished by mere presumption of law, when the necessary 
 consequence of an act is to delay or defraud. A natural 
 presumption is the deduction of one fact from another. 
 When creditors are about to be cheated, it is very uncom- 
 mon for the perpetrators to proclaim their purpose and 
 call in witnesses to see it done. A resort to presumptive 
 evidence, therefore, becomes absolutely necessary to pro- 
 tect 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 number and cogency of the circumstances from 
 which guilt may be inferred are proportioned to the origi- 
 nal improbability of the offence. The frequency of 
 frauds upon creditors, the difficulty of detection, the pow- 
 erful 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 im- 
 probable 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. 1 
 
 1 Kaine v. Weigley, 22 Perm. 179 ; Kendall v. Hughes, 7 B. Mou. 368 ; 
 Reed v. Noxon, 48 111. 323 ; Colquitt v. Thomas, 8 Geo. 258 ; Kelly v. 
 Lenihan, 56 Ind. 448 ; White v. Perry, 14 W. Va. 66. 
 
EVIDENCE. 603 
 
 Amount of Proof. — While the law abhors fraud, it is 
 also unwilling to impute it on slight and trivial evidence, 
 and thereby cast an unjust reproach upon the character of 
 the parties. 1 Such an imputation is grave in its character 
 and can only be sustained on satisfactory proof. If the 
 evidence is so conflicting that no conclusion 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 out his case. 3 Mere suspicion 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. 4 Fraud will never be imputed when the 
 circumstances and facts upon which it is predicated may 
 consist with honesty and purity of intention. 5 
 
 Not Inconsistent with other Theory. — It is not 
 necessary, however, that tbe evidence tending to the con- 
 clusion of fraud should be incapable of being accounted for 
 
 1 Thompson v. Sanders, 6 J. J . Marsh. 94 ; Blow v. Gage, 44 111. 208. 
 
 s Kaine v. Weigley, 22 Penn. 179 ; Bodine v. Simmons, 38 Mich. 682. 
 
 3 Parkhurst v. McGraw, 24 Miss. 134 ; Blow v. Gage, 44 111. 208 ; Wad- 
 dingham v. Loker, 44 Mo. 132 ; Bartlett v. Blake, 37 Me. 124 ; Belk v. 
 Massey, 11 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. Gro- 
 ver, 3 Md. 212 ; s. c. 3 Md. Ch. 29 ; Paringer v. Ramsay, 2 Md. 365 • s. c. 
 4 Md. Ch. 33 ; Buck v. Sherman, 2 Doug. (Mich.) 176 ; White v. Trotter, 
 21 Miss. 30 ; Hoose v. Robbins, 18 La. An. 648 ; King v. Moon, 42 Mo. 
 551 ; Waterman v. Donalson, 43 111. 29 ; Jaeger v. Kelly, 44 How. Pr. 
 122 ; s. o. 52 N. Y. 274; Darling v. Hurst, 39 Mich. 765; Pogodinski v. 
 Kruger, 44 Mich. 79. *Pifleld v. Gaston, 12 Iowa, 218. 
 
 6 Stiles v. Lightfoot, 26 Ala. 443 ; Lyman v. Cessford, 15 Iowa, 229 ; 
 Dallam v. Renshaw, 26 Mo. 533 ; Schofleld v. Blind, 33 Iowa, 175 ; Rum- 
 bolds v. Parr, 51 Mo. 592 ; Page v. Dixon, 59 Mo. 43 ; Drummond v. 
 Couse, 39 Iowa, 442 ; Burleigh v. White, 64 Me. 23 ; Tompkins v. Nichols, 
 53 Ala. 199 ; Schultze v. Hoagland, 85 N. Y. 464; State v. Estel, 6 Mo. 
 Ap. 6. 
 
604 EVIDENCE. 
 
 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 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. 
 
 Must be Satisfactory. — What amount or weight of 
 evidence is sufficient proof of a fraudulent intent is not a 
 matter of legal definition. If the evidence is admissible 
 as conducing in any degree to the proof of the fact, the 
 only legal test applicable to it upon such an issue is its 
 sufficiency to satisfy the mind and conscience and produce 
 a satisfactory conviction or belief. 1 The proof, however, 
 must be satisfactory. 2 It must be so strong and cogent as 
 to satisfy a man of sound judgment of the truth of the 
 allegation. 3 It need not possess such a degree of force as 
 to be irresistible, 4 but there must be evidence of tangible 
 facts from which a legitimate inference of a fraudulent 
 intent may be drawn. 5 Circumstances affording a strong 
 presumption are sufficient, 6 but the presumption must be 
 drawn from pregnant facts and not from far-fetched 
 probabilities. 7 Inferences are to be drawn from such facts 
 not singly but as a whole. 8 As an allegation of fraud is 
 against the presumption of honesty, it requires stronger 
 
 1 Linn v. Wright, 18 Tex. 317 ; Carter v. Gunnels, 67 111. 270. 
 
 8 King v. Moon, 42 Mo. 551 ; Fifleld v. Gaston, 12 Iowa, 218 ; Lillie 
 v. McMillan, 52 Iowa, 463 ; Bixby v. Carskaddon, 58 Iowa, 533 ; Eice v. 
 Dignowithy, 18 Miss. 57. 
 
 3 Henry v. Henry, 8 Barb. 588 ; Lockhard v. Beckley, 10 W. Va. 87. 
 
 4 Carter v. Gunnels, 67 111. 270. 
 
 " Jaeger v. Kelly, 44 How. Pr. 122 ; s. c. 52 N". Y. 274. 
 6 Parkhurst v. McGraw, 24 Miss. 134 ; Hempstead v. Johnston, 18 Ark. 
 123. ' Paxton v. Boyce, 1 Tex. 317. 
 
 8 Stebbins v. Miller, 94 Mass. 591. 
 
EVIDENCE. 605 
 
 proof than if no such presumption* existed. 1 As it is 
 against a presumption of fact, perhaps often a slight one, 
 it requires somewhat more evidence than would suffice to 
 prove the acknowledgment of an obligation or the delivery 
 of a chattel. 2 It is not necessary, however, that the fraud 
 shall be proved beyond a reasonable doubt. Issues of 
 fact in civil cases are determined by a preponderance of 
 testimony, and the rule applies as well to cases in which 
 fraud is imputed as to any other. If the evidence pro- 
 duces a rational belief, it can not be discarded although 
 some doubt remains. 3 If the evidence is of sufficient force 
 to produce a preponderance of assent in favor of fraud it 
 is sufficient.* The payment of a full price does not purify 
 a transaction, but is entitled to great weight when the 
 proof of fraud is not clear. 5 
 
 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 draw- 
 ing inferences from the testimony placed before it. The 
 difficulty of demonstrating the intention from the overt 
 acts and conduct of the parties furnishes 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 
 
 1 White v. Beltis, 9 Heisk. 645. 2 Hatch v. Bayley, 66 Mass. 27. 
 
 3 Ford v. Chambers, 19 Cal. 143; Bryant v. Simoneau, 5 111. 324; 
 McConihe v. Sawyer, 12 K. H. 396 ; Bice v. Dignowithy, 12 Miss. 57 ; 
 Watkins v. Wallace, 19 Mich. 57 ; Alston v. Rowles, 13 Fla. 117 ; Tripner 
 v. Abrahams, 47 Penn. 220 ; Lillie v. McMillan, 52 Iowa, 463 ; Bixby v. 
 Carskaddon, 58 Iowa, 533. 
 
 4 Carter v. Gunnells, 67 111. 270 ; Harrell v. Mitchell, 61 Ala. 270. 
 
 6 Kittering v. Parker, 8 Ind. 44. 
 
606 EVIDENCE. 
 
 nature and character of the transaction unassisted and un- 
 controlled by any certain and fixed principles. The char- 
 acter of a transaction is not thus dependent on the peculiar 
 notions of the judge as to what will constitute good or ill 
 faith. 1 The only exception to the rule is where the price 
 given by the grantee is inadequate. When a transfer is 
 of such indecisive and dubious aspect that it can not 
 be either entirely suppressed or entirely supported with 
 satisfaction, a court of equity may allow it to stand as a 
 security for the amount actually paid and let the creditors 
 in upon the balance. The creditors thus get what in 
 equity and good conscience they ought to have and the 
 grantee ought not to withhold from them. 2 
 
 1 Wilson v. Lott, 5 Fla. 305 ; vide King v. Moon, 42 Mo. 551 ; Hemp- 
 stead v. Johnson, 18 Ark. 123. 
 
 8 Boyd v. Dunlap, 1 Johns. Ch. 478 ; Bigelow v. Ayrault, 46 Barb. 143 ; 
 Heme v. Meeres, 1 Vera. 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 
 Ma. 9 ; Scott v. Winship, 20 Geo. 429 ; Farmers' Bank v. Long, 7 Bush, 
 337 ; McMeekin 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 v. Gray, 10 5T. J. Eq. 323 ; Ben- 
 nett v. Musgrove, 2 Ves. Sr. 51 ; Ward v. Shallet, 2 Ves. Sr. 16 ; Trimble 
 v. Ratcliffe, 9 B. Mon. 511 ; s. c. 12 B. Mon. 32 ; Bailey v. Kennedy, 2 
 Del. Ch. 20 - Loring v. Dunning, 16 Fla. 119 ; Hartfleld v. Simmons, 12 
 Heisk. 253 ; Shute v. Sturm, 6 Baxter, 139 ; Green v. Stuart, 7 Baxter, 
 418 ; Hinkle v. Wilson, 53 Md. 287. 
 
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. 1 The decree against 
 the grantee must in general be for a surrender of the 
 property, and not for an absolute sum. 2 It will not affect 
 a prior transfer made between the parties in good faith. 3 
 
 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 
 
 'Bozman v. Draughan, 3 Stew. 243 ; Wilson v. Horr, 15 Iowa, 489. 
 8 Bozman v. Draughan, 3 Stew. 243 ; Greer v. Wright, 6 Gratt. 154. 
 3 Murray v. Biggs, 15 Johns. 571 ; s. c. 2 Johns. Ch. 565. 
 39 
 
608 EXTENT OF GRANTEE'S LIABILITY. 
 
 ought to be applied to the satisfaction of their demands. 
 It depends, therefore, on the possession of the property. 
 If the grantee, therefore, 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. 1 The grantee for the 
 same reason can not be held to account for the property, 
 or the proceeds arising from a sale of it, which have been 
 applied by him in good faith to the payment of the debts 
 of the grantor. 2 In this respect there is no distinction 
 between a transfer which is fraudulent in fact and one 
 which is fraudulent in law. 3 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. 4 
 
 Proceeds. — 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. 
 Is autem dolo malo emit, bona fide autem ementi vendidit, in 
 
 1 Swift v.?Holdridge, 10 Ohio, 230 ; Stickney v. Crane, 35 Vt. 89 ; Ray- 
 ner v. Whicher, 88 Mass. 292 ; Wheeler v. Kirtland, 23 N. J. Eq. 13 ; 
 Warner v. Blakeman, 4 Abb. App. 530 ; Thomas v. Goodwin, 12 Mass. 
 140 ; vide Baker v. Bartol, 6 Cal. 483. 
 
 » Bostwick v.peizer, .10 Abb. Pr. 197 ; Collumb v. Read, 24 N. Y. 
 505 ; Grover v. Wakeman, 4 Paige, 23 ; s. c. 11 Wend. 187 ; Ames v. 
 Blunt, 5 Paige, 13 ; Strong v. Skinner, 4 Barb. 546 ; Averill v. Loucks, 6 
 Barb. 470 ; in re Wilson, 4 Penn. 430 ; Weber v. Samuel, 7 Penn. 499 ; 
 Kaupe v. Bridge, 2 Robt. 459 ; Cummings v. McCullough, 5 Ala. 324 ; 
 Butler v. Jaffray, 12 Ind. 504; Stickney v. Crane, 35 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; Crawford v. Kirksey, 55 
 Ala. 282 ; vide Barcroft v. Snodgrass, 1 Cold. 430. 
 
 > Ames v. Blunt, 5 Paige, 13. * Weber v. Samuel, 7 Penn. 499. 
 
EXTENT OF GRANTEE'S LIABILITY. 609 
 
 solidum pretium rei quod accepit tenebitwr} A court of 
 equity follows the proceeds of the property and affords a 
 remedy by turning the legal owner into a trustee for the 
 benefit of creditors. 2 The proceeds may be followed into 
 any property in which it has been invested so far as it 
 can be traced. 3 The grantee is liable for property which 
 he has converted to his own use. 4 If he sells the property 
 and receives insufficient security, the loss falls upon him, 
 and not upon the creditors. If he impedes the creditors 
 by unnecessary litigation, he will be held to make good 
 all loss which may be occasioned by his unjust interfer- 
 ence. 6 When he gives notes as a consideration for the 
 transfer, he furnishes the debtor with facilities for de- 
 
 1 Dig. Lib. 42, tit. 9. 
 
 2 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. 4; Backhouse v. Jett, 1 Brock. 500 
 Bryant v. Young, 21 Ala. 264; Van Winkle v. Smith, 26 Miss. 491 
 Swinford v. Rogers, 23 Cal. 233 ; Jones v. Reeder, 22 Ind. Ill ; Davis v 
 Gibbon, 24 Iowa, 257 ; Ames v. Blunt, 5 Paige, 13 ; Keep v. Sanderson, 
 2 Wis. 42 ; s. c. 12 Wis. 352 ; Kelly v. Lane, 42 Barb. 594 ; s. c. 18 Abb 
 Pr. 229 ; s. c. 28 How. Pr. 128 ; Hawkins v. Allston, 4 Ired. Eq. 137 
 McGill v. Harman, 2 Jones Eq. 179; Brown v. Godsey, 2 Jones Eq 
 417; Clements v. Moore, 6 Wall. 299; Alexander v. Todd, 1 Bond, 175 ; 
 Hammond v. Hudson River Co., 20 Barb. 378 ; Hubbell v. Currier, 92 
 Mass. 333 ; Thompson v. Bickford, 19 Minn. 17 ; Fullerton v. Viall, 42 
 How. Pr. 294 ; McCrassley v. Hasslock, 4 Baxter, 1 ; 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 ; s. o. 3 Robt. 142 ; Simpson v. 
 Simpson, 7 Humph. 275 ; Tubb v. Williams, 7 Humph. 367 ; Campbell 
 v. Erie R. R. Co., 46 Barb. 540 ; Childs v. Derrick, 1 Yerg. 79 ; Richards 
 v. Ewing, 11 Humph. 327. Contra, Abney v. Kingsland, 10 Ala. 355 ; 
 Carvillv. Stout, 10 Ala. 796; Lynch v. Welsh, 3 Penn. 294; Heath v. 
 Paige, 63 Penn. 280; French v. Breidelman, 2 Grant, 319. 
 
 8 Clements v. Moore, 6 Wall. 299 ; McGill v. Harman, 2 Jones Eq. 179. 
 
 4 Van Winkle v. Smith, 26 Miss. 491 ; How v. Camp, Walk. Ch. 427. 
 
 5 Robinson v. Boyd, 17 Mich. 128 ; Tarns v. Richards, 26 Penn. 97 ; 
 Gillett v. Bate, 86 N. Y. 87. 
 
 6 Watson v. Kennedy, 3 Strobh. Eq. 1. 
 
610 EXTENT OF GRANTEE' S LIABILITY. 
 
 frauding his creditors, and will therefore be held liable 
 for the notes that are misapplied. 1 If the property 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. 2 
 
 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 con- 
 sideration 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. 3 
 
 Rents and Profits. — The grantee may also be 
 charged with the rents and profits that have accrued from 
 the property. Et fructus non tantum qui percepti sunt 
 verum etiam hi qui percipi potuerunt a fraudatore, veniunt. 
 Partum quoque in hanc actionem venire, puto verius esse. 
 
 1 Clements v. Moore, 6 Wall. 299. a Steere v. Hoagland, 50 111. 377. 
 "Lerow v. Wilmarth, 91 Mass. 382; Nippe's Appeal, 75 Penn. 472; 
 Bernheim v. Beer, 56 Miss. 149. 
 
EXTENT OF GRANTEE' S LIABILITY. 611 
 
 Prceterea generaliter sciendum est ex hoc actione restitutio- 
 nem fieri opportere in pristinum statwm, sive res fuerunt 
 sive obligationes, ut perinde omnia revocentur ac si liberatio 
 facta non esset. Propter quod etiam medii temporis com- 
 modum quod quis eonsequeretur liberatione non facta, prces- 
 tandum erit dum usurce non prcestentur si in stipulatum 
 deductce non fuerunt; aut si talis contractus fuit in quo 
 usurce deberi potuerunt etiam non deductce. Hcec actio post 
 annum de eo quod ad eum pervenit adversus quern actio 
 movetur, competit; iniquum enim prcetor putavit, m lucro 
 morari eum qui lucrum sensit ex frauds ; id circo lucrum 
 ei extorquendum putavit. Sive igitur ipse fraudator sit ad 
 quern pervenit, sive alius quivis, competit actio in id quod 
 ad eum pervenit, dolove malo ejus factum est quominus 
 perveniret. 1 Non solum autem ipsam rem alienatam restitui 
 oportet, sed et fructus qui alienationis tempore terrce co- 
 herent, quia in bonis fraudatoris fuerunt. Item eos qui 
 post inchoatum judicium recepti smt. Medio autem tempore 
 perceptos in restitutionem non venire? Fructus autem 
 fundo cohcesisse non satis mtelligere se, Labeo ait, utrum 
 duntaxat qui maturi an etiam qui immaturi fuerint, prcetor 
 signified. Gceterum etiam si de his senserit qui maturi 
 fuerint, nihilo magis possessionem restitui oportere. Nam 
 cum fundus alienaretur, quod ad eum fructusque ejus 
 attmeret, unam quandam rem fuisse, id est, fundum cujus 
 omnis generis alienationem fructus sequi. Nee eum qui 
 hyberno tempore habuerit fundum centum, si sub tempus 
 messis, vmdemiceve, fructus ejus vendere possit decern, id 
 circo duos res, id est, fundum centum et fructus decern, eum 
 habere intelligendum ; sed unam, id est, fundum centum; 
 sicut is quoque unam rem haberet qui separatim solum 
 cedium vendere possit. 3 
 
 1 Dig. Lib. 42, tit. 9, §§20, 21, 24. "Dig. Lib. 42, tit. 9. 
 
 8 Dig. Lib. 42, tit. 9. 
 
612 EXTENT OF GRANTEE'S LIABILITY. 
 
 From what Time Profits are Computed. — It certainly 
 is not consonant with the principles of the law that the 
 grantee should derive any advantage from his fraud. Con- 
 sequently, he may be compelled to account for the profits 
 from the time of the transfer. 1 An account may also be 
 taken of what has been received as compensation for the 
 use of the property. 2 The grantee should not be charged 
 with the increased rent and profits arising from improve- 
 ments made by him. 3 
 
 The Amount. — When the grantee has merely received 
 money on a voluntary bond he is only liable for the 
 amount received. 4 If the grantee has merely received a 
 loan, and is innocent of all fraud, he will only be com- 
 pelled to pay the money at the time and in the manner he 
 agreed to pay it to the debtor. 5 If the property consists 
 of a policy of insurance on the life of the debtor, the 
 grantee is liable for the money recovered upon the death 
 of the debtor, and not merely for the amount of the 
 premiums that were fraudulently paid. 6 But if the trans- 
 
 1 Strike v. M'Donald, 2H.&6. 191 ; s. o. 1 Bland, 57 ; Kipp v. Hanna, 
 2 Bland, 26 ; Mead v. Coo'mbs, 19 N. J. Eq. 112 ; How v. Camp, Walk. 
 Ch. 427 ; Alexander v. Todd, 1 Bond, 175 ; Marshall v. Croome, 66 Ala. 
 121 ; Janes v. McCleod, 61 Geo. 602 ; vide Sands v. Codwise, 4 Johns. 
 536 ; 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 ; Higgins v. York Building Co., 2 Ark. 107 ; Croft 
 v. Arthur, 3 Dessau. 223 ; Backhouse v. Jett, 1 Brock. 500 ; Pharis v. 
 Leachman, 20 Ala. 662 ; Brown v. M'Donald, 1 Hill Ch. 297 ; Warner v. 
 Blakeman, 4 Abb. App. 530 ; U. S. v. Griswold, 8 Fed. Rep. 556. 
 
 'Shields -v. Anderson, 3 Leigh, 729. Contra, Simpson v. Simpson, 7 
 Humph. 275. 
 
 8 King v. Wilcox, 11 Paige, 589. 
 
 4 Hopkirk v. Randolph, 2 Brock. 132. 6 Weed v. Pierce, 9 Cow. 722. 
 
 6 Stokes v. Coffey, 8 Bush, 533 ; Elliott's Appeal, 50 Penn. 75 ; vide 
 Cole v. Marple, 98 111. 58. 
 
EXTENT OF GRANTEE' S LIABILITY. 613 
 
 fer of the policy was made while the debtor was solvent, 
 the grantee is liable merely for the premiums paid after 
 he became insolvent. 1 "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. 2 When an assignment 
 is set aside the assignee must account for property bought 
 by him at sales under execution or mortgage, for the trust 
 is valid against him. 3 
 
 No Indemnity in Case of Actual Fraud. — Si debitor 
 in fraudem creditorvm minore pretio fundum scienti emp- 
 tori vendiderit; deinde hi quibus de revocando eo actio 
 datur, eum petant ; qucesitum est an pretium restituere de- 
 beant? Proculus existimat, omnimodo restituendwm esse 
 fundum etiam si pretium, non solvatur. Et rescriptwm est 
 secundum Proculi sententiam. Ex his colligi potest ne 
 quidem portionem emptori reddendam ex pretio. Posse 
 tamen did, earn rem apud arbitrum ex causa animadver- 
 tendam ut si nummi soluti m bonis exstent, jubeat eos reddi ; 
 quia ea ratione nemo fraudetur} 
 
 A transfer tainted with actual fraud is absolutely 
 void, although it is founded upon a valuable consideration. 
 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 fraudulent scheme forfeits all 
 
 1 Pullis v. Robison, 5 Mo. Ap. 549. 
 
 * Drury v. Cross, 7 Wall. 299 ; Wilson v. Horr, 15 Iowa, 489. 
 
 ^ Colburn v. Morton, 1 Abb. App. 378. "Dig. Lib. 42, § 14. 
 
614 EXTENT OF GRANTEE'S LIABILITY. 
 
 right to protection either at law or in equity. The law 
 does not so far countenance fraudulent contracts as to pro- 
 tect 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 per- 
 mit the transfer to stand as a security for the amount paid 
 to the debtor, 1 or for the sums subsequently paid to credi- 
 tors, 2 even though he thereby pays off a mortgage, 3 or a 
 debt contracted in the purchase of the property. 4 If the 
 property assigned consist of a contract to erect a building, 
 he cannot claim even what he paid for labor and materials 
 in doing the work. 5 No allowance can be made to an 
 assignee for his services under a fraudulent assignment, 6 or 
 for the sum paid to counsel after the lien of the creditors 
 had attached. 7 
 
 No Set-off. — If the grantee is also a creditor, he can 
 not set off his debt against the demand upon him for the 
 
 1 M'Kee v. Gilchrist, 3 Watts, 230 ; Stovall v. Farmers' Bank, 16 Miss. 
 305 ; Holland v. Cruft, 37 Mass. 321 ; Sands v. Codwise, 4 Johns. 536 ; 
 How v. Camp, Walk. Ch. 427 ; Pettibone v. Stevens, 15 Conn. 19 ; Moore 
 v. Tarlton, 3 Ala. 444; Marriott v. Givens, 8 Ala. 694; Goodwin v. Ham- 
 mond, 13 Cal. 168; Bibb v. Baker, 17 B. Mon. 292; Bleakley's Appeal, 
 66 Penn. 187 ; Miller v. Tolleson, Harp. Ch. 145 ; Brooks v. Caughran, 3 
 Head, 464 ; Allen v. Berry, 50 Mo. 90 ; Potter v. Stevens, 40 Mo. 229. 
 
 '' Williamson v. Goodwyn, 9 Gratt. 503 ; Wood v. Hunt, 38 Barb. 302 ; 
 Borland v. Walker, 7 Ala. 269 ; Bean v. Smith, 2 Mason, 252 ; Allen v. 
 Berry, 50 Mo. 90. 
 
 3 Pettus v. Smith, 4 Rich. Eq. 197 ; Wiley v. Knight, 27 Ala. 336 ; 
 Railroad Co. v. Soutter, 13 Wall. 517; Thompson v. Bickford, 19 Minn. 
 17 ; in re Peter Mead, 19 N. B. R. 81. 
 
 * Sale v. McLean, 29 Ark. 612. 
 
 5 Chapman v. Ransom, 44 Iowa, 377. 
 
 6 Hastings v. Spencer, 1 Curt. 504 ; Brown v. Warren, 43 N. H. 430 ; 
 vide Bishop v. Catlin, 28 Vt. 71. ' Hastings v. Spencer, 1 Curt. 504. 
 
EXTENT OF GRANTEE'S LIABILITY. 615 
 
 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 the transfer condemned 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 fraudu- 
 lent deed than if he had acquired it tortiously. 1 In this 
 respect it makes no difference whether the property re- 
 mains in specie or has been converted into money, 3 or 
 whether there is actual fraud, or the transfer is void on 
 account of some provision contained in the deed. 3 In 
 neither of these cases is a set-off allowed. Upon the same 
 principle a creditor who has assented to a fraudulent 
 assignment can not set off his claim against the proceeds 
 
 1 Murray v. Riggs, 15 Johns. 571 ; s. C. 2 Johns. Ch. 565 ; Harris v. 
 Sumner, 19 Mass. 129 ; Burtus v. Tisdall, 4 Barb. 571 ; Bean v. Smith, 2 
 Mason, 252; M'Kee \. 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 ; Armstrong v. Tuttle, 34 Mo. 432 ; Miller v. Tolleson, Harp. Ch. 145 ; 
 Fryer v. Bryan, 2 Hill Ch. 56 ; White v. Graves, 7 J. J. Marsh. 523 ; Gar- 
 land v. Rives, 4 Rand. 282; Thompson v. Bickford, 19 Minn. 17; Salo- 
 mon v. Moral, 53 How. Pr. 342 ; Thompson v. Pennel, 67 Me. 159 ; Hub- 
 bard v. Allen, 59 Ala. 283 ; Smith v. Craft, 12 Fed. Rep. 856 ; vide Goddard 
 v. Hapgood, 25 Vt. 351 ; Bishop v. Catlin, 28 Vt. 71 ; Brown v. Warren, 
 43 N. H. 430. 
 
 5 Thompson v. Bickford, 19 Minn. 17; Murray v. Riggs, 15 Johns. 
 571 ; s. c. 2 Johns. Ch. 565 ; M'Kee v. Gilchrist, 3 Watts, 230 ; Burtus 
 v. Tisdall, 4 Barb. 571 ; Fryer v. Bryan, 2 Hill Ch. 56. Contra, Tubb v. 
 Williams, 7 Hump. 367 ; Peacock v. Tompkins, Meigs, 317 ; Peters v. 
 Cunningham, 10 Md. 554. 
 
 3 Murray v. Riggs, 15 Johns. 571 ; s. c. 2 Johns. Ch. 565 ; Hone v. 
 Heinriquez, 13 Wend. 240 ; s. C. 2 Edw. 120 ; Harris v. Sumner, 19 Mass.. 
 129. Contra, Peters v. Cunningham, 10 Md. 554 ; Peacock v. Tompkins, 
 Meigs, 317. 
 
616 EXTENT OF GRANTEE'S LIABILITY. 
 
 of property placed in his hands to sell as an auctioneer. 1 
 It has, however, been held that where a donee is also a 
 creditor, he can not be disturbed in his possession without 
 payment of his claim. 2 This is on account of his inno- 
 cence, for no fraud either actual or constructive can be 
 imputed to him, and in such a case his equity is equal to 
 that of the other creditors. 
 
 Debt of Grantee. — A fraudulent judgment can not 
 even be used as against other creditors to collect the 
 amount that is due to the party to whom it is given. 3 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. 4 
 
 Indemnity in Case of Constructive Fraud. — When a 
 transfer is not tainted with actual fraud, but is fraudulent 
 merely by construction of law, it will be allowed to stand 
 as security for the money advanced by the grantee to 
 the grantor, 5 or to pay off incumbrances, 6 or to pay the 
 
 1 Hone v. Henriquez, 13 Wend. 240 ; s. c. 2 Edw. 120. 
 
 2 Oliver v. Moore, 23 Ohio St. 473. 
 
 3 Cleveland v. B. B. Co., 7 A. L. Beg. 536 ; Bunn v. Ahl, 29 Penn. 387. 
 4 Eobinson v. Stewart, 10 N. Y. 189 ; Dickinson v. Way, 3 Bich. Eq. 
 
 412 ; Murray v. Biggs, 15 Johns. 571 ; s. c. 2 Johns. Ch. 565 ; Johnston v. 
 Bank, 3 Strobh. Eq. 263; Yoder v. Standiford, 7 Mon. 478. 
 
 5 Alley v. Connell, 3 Head, 578 ; Wood v. 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 ; 
 Neufter v. Pardue, 3 Sneed, 191 ; Weeden v. Hawes, 13 Conn. 50 ; San- 
 ford v. Wheeler, 13 Conn. 165 ; Short v. Tinsley, 1 Met. (Ky.) 397 ; 
 Scouton v. Bender, 3 How. Pr. 185 ; Anderson v. Fuller, 1 McMullan 
 Ch. 27 ; Clements v. Moore, 6 Wall. 299 ; Drury v. Cross, 7 Wall. 299 ; 
 Brown v. McDonald, 1 Hill Ch. 297 ; Parker v. Holmes, 2 Hill Ch. 93 ; 
 Turbeville v. Gibson, 8 Heisk. 565. 
 
 6 Potter v. Gracie, 58 Ala. 303. 
 
EXTENT OF GRANTEE'S LIABILITY. 617 
 
 grantor's debts. 1 This is especially true when a convey- 
 ance is set aside in equity on the ground that it is par- 
 tially voluntary, 2 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. 3 An innocent 
 grantee is entitled to indemnity for advances made by 
 him to the debtor even after the recovery of a judgment 
 against the grantor which was a lien on the property, for 
 the lien did not divest the title. 4 The grantee 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 substituted to the rights of the vendor, whose title 
 he took. 5 Where the vendor of property, the title to 
 which is taken in the name of another, acts in good faith, 
 he may claim the portion of the purchase money that 
 remains unpaid. 6 If the grantee held the possession of 
 the property, the rents and profits will be deemed equiva- 
 lent to the interest on his money, 7 or deducted from the 
 amount to be refunded to him. 8 An innocent grantee may 
 
 1 Pond v. Comstock, 27 N. Y. Supr. 492. 
 
 2 College v. Powell, 12 Gratt. 372 ; Worthington v. Bullitt, 6 Md. 172 ; 
 s. c. 3 Md. Ch. 99 ; Crumbaugh v. Kugler, 2 Ohio St. 373 ; Herschfeldt v. 
 George, 6 Mich. 456 ; Church v. Chapin, 35 Vt. 223 ; Corlett v. Radcliffe, 
 14 Moore P. C. 121 ; Spalding v. Norman, 51 N. Y. 672 ; First Nat'l 
 Bank v. Birtsehy, 52 Wis. 438. 
 
 3 Boyd v. Dunlap, 1 Johns. Ch. 478 ; Bigelow v. Ayrault, 46 Barb. 14*3 ; 
 Heme v. Meeres, 1 Vern. 465 ; s. c. 2 Bro. C. C. 177, n. ; Clements v. 
 Moore, 6 Wall. 299 ; Bean v. Smith, 2 Mason, 252 ; Doughten v. Gray, 
 10 N. J. Eq. 323 ; Glass v. Farmer, 10 Heisk. 551 ; Tompkins v. Sprout, 
 55 Cal. 31 ; Roche v. Hassard, 5 Ir. Ch. 14. 
 
 4 Henderson v. Hunton, 26 Gratt. 926. 
 
 5 Gardiner Bank v. Wheaton, 8 Me. 373 ; Ogle v. Lichleberger, 1 A. L. 
 Reg. 121 ; Ford v. Johnston, 14 N. Y. Supr. 563. 
 
 •Highland v. Highland, 5 W. Va. 63. 
 
 7 Brown v. M'Donald, 1 Hill Ch. 297. 
 
 8 Gardiner Bank v. Wheaton, 8 Me. 373. 
 
618 EXTENT OF GRANTEE'S LIABILITY. 
 
 also be allowed a compensation for his services. 1 An 
 innocent purchaser who contracts to pay the value of the 
 property in the support of the grantor is entitled to in- 
 demnity for disbursements made before the deed is im- 
 peached. 3 
 
 Partner. — A partner who accepts a fraudulent trans- 
 fer 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. 3 
 
 Feme Covert. — 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. 4 
 Although she has received a voluntary conveyance from 
 her husband, yet if she has sold the property and spent 
 the proceeds she is not liable to his creditors, for the pre- 
 sumption is that she spent it at the dictation of her hus- 
 band. 5 
 
 Expenditures. — When the transfer is tainted with 
 actual fraud, no allowance can be made for improvements. 6 
 
 1 Brown v. M'Donald, 1 Hill Ch. 297 ; Gardiner Bank v. Wheaton, 8 
 Me. 373. 
 
 2 Henderson v. Hunton, 26 Gratt. 926. 
 
 3 Thompson v. Drake, 3 B. Mon. 565. 
 
 4 Blanton v. Taylor, Gilmer, 209 ; Quarles v. Lacy, 4 Munf. 251 ; Col- 
 lege v. Powell, 12 Gratt. 372 ; Taylor v. Moore, 2 Rand, 563 ; Ward v. 
 Crotty, 4 Met. (Ky.) 59. 
 
 6 Phipps v. Sedgwick, 95 U. S. 3 ; s. c. 12 Blatch. 163; s. c. 5 Ben. 
 184; s. c. 5 N. B. R. 168 ; s. o. 10 BT. B. R. 28. 
 
 6 Strike v. M'Donald, 2 H. & G. 191 ; s. c. 1 Bland, 57 ; High v. Nelms, 
 14Ala.350; Auble v.Mason, 35Penn. 261 ; in re Peter Mead, 19 N. B. R. 
 81 ; vide How v. Camp, Walk. Ch. 247 ; King v. Wilcox, 11 Paige, 589. 
 
EXTENT OF GRANTEE'S LIABILITY. 619 
 
 It would seem, however, to be just and reasonable to 
 allow expenditures as an offset to rents and profits, 1 
 especially when they have been made to pay taxes. 2 Sed 
 cum aliquo modo, scilicet ut sumptus facti deducantw ; 
 nam arbitrio judicis non prim cogendus est rem restituere 
 quam si impensas necessarias consequatw. Idemque erit 
 probandum et si 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 the improvements. 4 An 
 assignee claiming under a voluntary assignment which is 
 fraudulent only by construction of law, is allowed all his 
 necessary expenses and disbursements in collecting the 
 debts or converting the property into money, 5 or paying 
 off prior liens. 8 
 
 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, 7 
 for the creditor is not bound to apportion 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 
 
 1 Croft v. Arthur, 3 Dessau. 223 ; Rucker v. Abell, 8 B. Mon. 566 ; 
 Byers v. Fowler, 12 Ark. 218 ; vide Strike v. M'Donald, 2 H. & G. 191 ; 
 S. C. 1 Bland, 57. 
 
 2 How v. Camp, Walk. Ch. 427 ; King v. Wilcox, 11 Paige, 589 ; vide 
 Strike v. M'Donald, 2 H. & G. 191 ; s. c. 1 Bland, 57. 
 
 3 Dig. Lib. 42, tit. 9, §20. 
 
 4 Rucker v. Abell, 8 B. Mon. 566. 
 
 6 Strong v. Skinner, 1 Barb. 546 ; Bishop v. Catlin, 28 Vt. 71 ; Brown 
 v. Warren, 43 M". H. 430 ; Therasson v. Hickok, 37 Vt. 454 ; Colburn v. 
 Morton, 1 Abb. App. 378. 
 
 6 Colburn v. Morton, 1 Abb. App. 378. 
 
 ' Hopkirk v. Randolph, 2 Brock. 132 ; Van Wyck v. Seward, 18 Wend. 
 375 ; s. o. 6 Paige, 62 ; s. c. 1 Edw. 327. 
 
620 extent or grantee's liability. 
 
 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 respon- 
 sible to him to the full extent of their liabilities respect- 
 ively in the event of his failing, from insolvency or any 
 other cause, to procure satisfaction from any of the parties 
 of their due proportion of his demand. 1 
 
 Exempt Property. — If the property is exempt abso- 
 lutely and unconditionally from execution, the grantee 
 may retain it, for a fraudulent conveyance does not en- 
 large the rights of the creditors, but leaves them to 
 enforce their rights as if no conveyance had been made. 
 If they insist that the property still belongs to the debtor, 
 they can only sell the same right as if he were the actual 
 owner. Consequently, they must sell it subject to the 
 right to an exemption which the grantee may claim. 3 He 
 has all the powers of an owner to defend his property. 
 JSe may defend his possession 3 against a purchaser under 
 an execution, or institute an action of replevin against a 
 constable who has levied on the property, or file a bill in 
 equity against creditors who have seized it, 5 or maintain 
 
 1 Chamberlayne v. Temple, 2 Rand. 384 ; Brice v. Myers, 5 Ohio 121; 
 Cornish v. Clark, L. R. 14 Eq. 184. 
 
 2 Danforth v. Beattie, 43 Vt. 138 ; Kuevan v. Specker, 11 Bush, 1 ; 
 Castle v. Palmer, 88 Mass. 401 ; Martel v. Somers, 26 Tex. 551 ; Tou- 
 mans v. Boomhower, 3 T. & C. 21 ; Whiting v. Barrett, 7 Lans. 106 ; 
 Lichy v. Ferry, 6 Bush, 315 ; Crummen v. Bennett, 68 N. C. 494 ; Hibben 
 v. Soyer, 23 Wis. 319 ; Chrisman v. Roberts, 68 Penn. 308 ; Rayner v. 
 Whicher, 88 Mass. 292 ; Pennington v. Seal, 49 Miss. 518 ; Keating v. 
 Keefer, 5 N. B. R. 133 ; s. c. 4 A. L. T. 162; Leupold v. Krause, 95 111. 
 440 ; Kehr v. Smith, 7 N. B. R. 97 ; s. o. 10 N. B. R. 49 ; s. c. 2 Dill. 50 ; 
 s. c. 20 Wall. 31. 
 
 3 Wood v. Chambers, 20 Tex. 247. 
 
 4 Bond v. Seymour, 1 Chand. 40 ; s. O. 2 Pinney, 105. 
 
 5 Smith v. Allen, 39 Miss. 469. 
 
EXTENT OF GRANTEE'S LIABILITY. 621 
 
 an action of trover 1 or trespass 2 against them for the 
 seizure. If the property, however, is exempt only condi- 
 tionally while the debtor owns it, the right to the exemp- 
 tion ceases with the conveyance, and the grantee can not 
 claim it. 3 If the exemption is only allowed upon the 
 claim of the debtor, the grantee can not claim it. 4 If the 
 property is exempt only during the lifetime of the debtor, 
 the grantee can not claim the exemption after the debtor's 
 death. 5 
 
 Dower. — If the conveyance is set aside the grantee 
 can not retain the dower interest of the grantor's wife. 6 
 
 Surplus. — The surplus which may remain after the 
 payment of the debt and costs belongs to the grantee. 7 If 
 the conveyance is voluntary the donee is entitled to an 
 assignment of the creditor's claim upon paying the amount 
 thereof. 8 
 
 1 Foster v. McGregor, 11 Vt. 595. 
 
 8 Anthony v. Wade, 1 Bush. 110. 
 
 8 Piper v. Johnston, 12 Minn. 60 ; Chambers v. Sallie, 29 Ark. 407. 
 
 * Getzler v. Saroni, 18 111. 511 ; Herschfeldt v. George, 6 Mich. 456 ; 
 Edmondson v. Hyde, 7N.B.B.1; s. c. 2 Saw. 205. 
 
 5 Fellows v. Lewis, 65 Ala. 343. " Lockett v. James, 8 Bush. 28. 
 
 7 Wood v. Hunt, 38 Barb. 302 ; Burtch v. Elliott, 3 Ind. 99 ; King v. 
 Tharp, 26 Iowa, 283; Allen v. Trustees, 102 Mass. 262; Freeman v. 
 Burnham, 36 Conn. 469 ; Norton v. Norton, 59 Mass. 524 ; Bostwick v. 
 Menck, 40 N. Y. 383 ; Pratt v. Cox, 22 Gratt. 330 ; Orr v. Gilmore, 7 
 Lans. 345 ; Todd v. Neal, 49 Ala. 266 ; Ford v. Johnston, 14 N. Y. Supr. 
 563 ; Van Wyck v. Baker, 17 N. Y. Supr. 39 ; Kerr v. Hutchins, 46 Tex. 
 384. 
 
 s Cole v. Malcolm, 66 N. Y. 363. 
 
CASES FKOM THE YEAE 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 san c' q'ils averont l'admistrac' 
 des aut's biens, etc., judgem't si ace'. Trem. mesme eel done 
 fuit fait y fraude et colluss' pur ouster no' et aut's as queux il 
 fait dettor de nostr' action prist, etc., 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 TV, f. 4. 
 
 En un bill de trespass dun chival et iiij. vach a tort prises, 
 etc., port vers T. de W. et E. de N. Les queux plede de rien 
 culp : trove fait y Enquest, que le dit R. avoit rec' vers J. B. rrs, 
 eD la Court de P., per que le dit T. come baily, etc., 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 pi' y fraud a delaier l'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 
 enten ceo don de nul valu, et jeo tien q' ce'y a qui tiel don fuit 
 fait les fist fors gardein des bestes al' oepz l'autre' quia fraus & 
 dolus, &c. Car autrement en aur' jamais home exec, des chat' ; 
 y q' prenes rien y vostre bill. — Li. As. 101, f. 72. 
 
CASES FROM THE YEAR BOOKS. 
 
 TEAK8LATIOS, 
 
 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. Judgment si 
 actio. 
 
 Trem. This same gift was made fraudulently and collusively 
 to oust us and others, to whom he was a debtor, from our action. 
 Ready, etc. Wherefore we pray for our debt. 
 
 Horton says that the gift was made in good faith without any 
 such, etc. Ready, and so to the 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 recov- 
 ered against J. B. rrs. in the court of P., on authority of which 
 the said T., as bailiff, etc., took the said cows in execution 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 interrogated 
 by the court as to this point: who received the profits of the 
 beasts in the mean time ? 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 ; where- 
 fore take nothing by your bill. 
 40 
 
624 CASES FROM THE YEAR BOOKS. 
 
 En le chancery un bill fait abatu pur non suffic. del matter, 
 et le pi' dit q' eel bill fait misconceive ; mes il mr'a pur son 
 matter q. J. B. que est jades baron le def. achata del pere le pi' 
 q' execut' il est a Brig, certein bn's al value de C marks, etc. 
 Et puis m' cestuy J. B. vient en Engleterre et p' defraudr' 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 pris m 5 cestuy q' est supp' destre 
 def. al barron, et ala en Lond ; et emport m' le bn's ove luy et 
 est seisie et poss. de eux, etc., le quel matter, &c. Et priom' q' 
 il rn'd a eel matter et bill, et il aver copy de ceo et issint agard 
 le court, quod nota, &c. — 16 JEdw. IV, folio 9. 
 
 Scire facias des dam's recouer' le vicont ret' quele defendant 
 au' vend ces chateaux en fraude de tolt' lexecucion. 3 Scroop : 
 home puit bien auer vendu ces chateaux cy bien apres jugement 
 come deuaunt sauns ce que exec' se fra deux chateaux. — Fitz- 
 herbert's Abdgt., Execution, pi. 108. 
 
 3 Det y Belk. si home recouera dam' e.t le defendant alien 
 ses bn's y fraude la issue poet estre prise s' c' et si soit troue le 
 pi' au'a executio del bn's alien y fraud qd non negat. — Brook's 
 Air., Collusion, pi. 9. 
 
CASES FROM THE YEAR BOOKS. 625 
 
 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 husband 
 of the. defendant, bought of the plaintiff'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 property to a cer- 
 tain person, &c, but he continued his possession and took refuge 
 at Westminster and died, and his property continued in the pos- 
 session 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 make answer to this 
 matter and bill, and that he have copy of it, and thus the court 
 awarded, quod nota, &c. 
 
 Scire facias for damages recovered. The sheriff returns 
 that the defendant had fraudulently sold the chattels to prevent 
 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 defendant 
 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 ; quod non negat. 
 
APPENDIX. 
 
 STATUTES OF THE VARIOUS STATES. 
 
 ENGLAND. 
 
 50 E. Ill, Cap. 6. 
 
 Item. 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 chattels 
 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 countenance of 
 another man's goods, and profits of the said tenements and chat- 
 tels, till the said creditors shall be bound to take a small parcel 
 of their debt, and release the remnant ; it is ordained and as- 
 sented, that if it be found that such gifts be so made by collusion, 
 that the said creditors shall have execution of the said tenements 
 and chattels as if no such gift had been made. 
 
 3 H. VII. Cap. 4. 
 
 Item. That where oftentimes deeds of gifts of goods and 
 chattels have been made, to the intent to defraud their creditors 
 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 
 
628 APPENDIX. 
 
 by the assent of the Lords Spiritual and Temporal, and at the 
 request of the Commons in the said Parliament 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 Eliz., 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 has been seen or heard of hereto- 
 fore ; 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 defraud credi- 
 tors and others of their just and lawful actions, suits, debts, ac- 
 counts, damages, penalties, forfeitures, heriots, mortuaries and 
 reliefs, 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, bargaining and chevisance between man 
 and man, without the which no commonwealth or civil society 
 can be maintained or continued : 
 
 II. 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 pur- 
 pose 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, 
 
APPENDIX. 629 
 
 penalties, forfeitures, heriots, mortuaries and reliefs, by such 
 guileful, covinous or fraudulent devices and practices as is afore- 
 said, are, shall or might be in any wise disturbed, hindered, de- 
 layed, or defrauded), to be clearly and utterly void, frustrate and 
 of none effect ; any pretence, color, feigned consideration, ex- 
 pressing of use, or any other matter or thing to the contrary not- 
 withstanding. 
 
 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 com- 
 ing, 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 or them conveyed, as is 
 aforesaid, or any part thereof, shall incur the penalty and for- 
 feiture 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 successors, 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 aforesaid, 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 defendant 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 afore- 
 said, that this act, or anything therein contained, shall not ex- 
 tend to any estate or interest in lands, tenements, hereditaments, 
 leases, rents, commons, profits, goods, or chattels, had, made, 
 
630 APPENDIX. 
 
 conveyed or assured, or hereafter to be had, made, conveyed, or 
 assured ; which estate or interest is, or shall be upon good con- 
 sideration, and lona fide lawfully conveyed or assured to any 
 person or persons, or bodies 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 is aforesaid ; anything before mentioned to the contrary 
 hereof notwithstanding. 
 
 VII. This Act to endure unto the end of the first session of 
 the next Parliament. 
 
 Note. — This Act was made perpetual by 29 Eliz. cap. 5. 
 
 ALABAMA. 
 
 § 1861. All deeds of gift, all conveyances, transfers and as- 
 signments, 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. 
 
 § 1865. All conveyances or assignments, in writing or other- 
 wise, 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 law- 
 ful 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 persons who 
 are or may be so hindered, delayed or defrauded, their heirs, 
 personal representatives and assigns, are void. — Chap. 4, Article 
 1, Code of Alabama. 
 
 AEKANSAS. 
 
 § 2953. Every deed of gift and conveyance of goods and 
 chattels 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. 
 
 § 2954. Every conveyance or assignment, in writing or 
 otherwise of any estate or interest in landB, or in goods and 
 
APPENDIX. 631 
 
 chattels, 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. 
 
 § 2959. 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 
 fide purchaser from the grantee for valuable consideration and 
 without any notice of fraud. — Chap. 62, Revised Statutes of 
 Arkansas. 
 
 CALIFOEOTA. 
 
 3439. Every transfer of property or charge thereon made, 
 every obligation incurred, and every judicial proceeding taken 
 with intent to delay or defraud any creditor or other person of 
 his demands is void against all creditors of the debtor, and their 
 successors in interest, and against any person upon whom the 
 estate of the debtor devolves, in trust for the benefit of others 
 than the debtor. 
 
 3440. Every transfer of personal property other than a tiling 
 in action, or a ship or a cargo at sea or in a foreign port, and 
 every lien thereon other than a mortgage, when allowed by law, 
 and a contract of bottomry or respondentia is conclusively pre- 
 sumed, if made by a person having at the time the possession or 
 control of the property, and not accompanied by an immediate 
 delivery, and followed by an actual and continued change of 
 possession of the things transferred, to be fraudulent, and there- 
 fore void, against those who are his creditors, while he remains 
 in possession, and the successors in interest of such creditors, and 
 against any persons on whom his estate devolves in trust for the 
 benefit of others than himself, and against purchasers or incum- 
 brancers, in good faith, subsequent to the transfer. 
 
632 APPENDIX. 
 
 3441. A creditor can avoid the act or obligation of his debtor 
 for fraud only where the fraud obstructs the enforcement by 
 legal process of his right to take the property affected by the 
 transfer or obligation. 
 
 3442. In all cases arising under section 1227, or under the 
 provisions of this title, except as otherwise provided in section 
 3440, the question of fraudulent intent is one of fact and not of 
 law ; nor can any transfer or charge be adjudged fraudulent 
 solely on the ground that it was not made for a valuable con- 
 sideration. — California Civil Code, Part II, Title II. 
 
 CONNECTICUT. 
 
 Sec. 1. All fraudulent conveyances, suits, judgments, execu- 
 tions or contracts made or contrived with intent to avoid any 
 debt or duty belonging to others shall, notwithstanding any pre- 
 tended consideration therefor, be void as against those persons 
 only, their heirs, executors, administrators or assigns, to whom 
 such debts or duty belongs. 
 
 Sec. 2. ADy party to any such fraudulent proceeding who shall 
 wittingly justify the same as being made in good faith and on 
 good consideration shall forfeit one year's value of any real 
 estate, and the whole value of any personal estate conveyed, 
 changed or contracted for thereby, half to the party aggrieved who 
 shall sue for the same, and half to the State. — General Statutes 
 of Connecticut, Title 18, Chap. 3. 
 
 DELAWAEE. 
 
 Sec. 4. No sale, whether with or without bill of sale, of any 
 goods or chattels within this State, shall be good in law, except 
 as against the vendor, or shall change or alter the property in 
 such goods or chattels, unless a valuable consideration for the 
 same shall be paid, and unless the goods and chattels sold shall 
 be actually delivered into the possession of the vendee as soon 
 as conveniently may be after the making of such sale. — Revised 
 Code of Delaware, Title 9, Chap. 43. 
 
APPENDIX. 633 
 
 FLOEIDA. 
 
 § 1. Every feoffment, gift, grant, alienation, bargain, sale, 
 conveyance, transfer and assignment of lands, tenements, here- 
 ditaments and other goods and chattels, or any of them, or any 
 lease, rent, use, common or other profit, benefit or charge what- 
 ever, oat 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, 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, administrators and assigns, and every 
 of them so intended to be delayed, hindered or defrauded, 
 deemed, held, adjudged and taken, to be 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 : 
 
 Provided, That the foregoing section of this act, or anything 
 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 considera- 
 tion, 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 collusion, as afore- 
 said, anything in the said section to the contrary notwithstand- 
 ing. — Chap. 27, Bush? 8 Digest of the Statute Law of Florida. 
 
 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 
 
634 APPENDIX. 
 
 description to any person, either in trust or for the benefit of, or 
 in behalf of creditors, where any trust or benefit is reserved 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 con- 
 tract of any description, had or made with intention to delay or 
 defraud creditors, and such intention known to the party taking ; 
 a bona fide transaction on a valuable consideration, 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. 
 
 § 1943. 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 trans- 
 fer 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. 
 
 ILLINOIS. 
 
 § 4. Every gift, grant, conveyance, assignment 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 dis- 
 turb, delay, hinder or defraud creditors 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, purchasers, or other persons. 
 
 § 5. The foregoing section shall not affect the title of a pur- 
 chaser for a 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. 
 
 § 8. This act shall not extend to any estate, or interest in 
 any lands, goods or chattels, or any rents, common or profit out 
 of the same, which shall be upon good consideration and bona 
 fide lawfully conveyed or assured to any person, bodies politic 
 or corporate. — Revised Statutes of Illinois, Chap. 59. 
 
APPENDIX. 635 
 
 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 fraudulent 
 and void, as against the creditors of the vendor, or subsequent 
 purchasers in good faith, unless it shall be made to appear 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 creditors, 
 or other persons of their lawful damages, forfeitures, debts or 
 demands, shall be void as to the person sought to be defrauded. 
 
 § XVIII. All deeds of gift, conveyances, transfers, or assign- 
 ments, verbal or written, of goods or things in action, made in 
 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 pro- 
 ceeding, 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 pur- 
 chasers. ' 
 
 § XX. The provisions of this act shall not be construed to 
 affect the title of a purchaser for a valuable consideration, unless 
 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 assignor. 
 
 § 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 fraudulent, 
 
636 APPENDIX. 
 
 as against creditors or purchasers, solely on the ground that it 
 was not founded on a valuable consideration. — Chap. 66, Statutes 
 of Indiana. 
 
 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 consideration. 
 This section shall not interfere with the provisions of law 
 relating to chattel mortgages. — Chapter 43, General Statutes of 
 Kansas, 1868. 
 
 KENTUCKY. 
 
 § 1. Every gift, conveyance, assignment 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, action com- 
 menced, judgment suffered, with like intent, shall be void as 
 against such creditors, purchasers, 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. 
 
APPENDIX. 637 
 
 § 2. Every gift, conveyance, assignment, transfer or charge 
 made by a debtpr of or upon any of his estate, -without valuable 
 consideration therefor, shal] 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 contracted, nor 
 as to purchasers with notice of the voluntary alienation 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. 4, General Statutes 
 of Kentucky. 
 
 MICHIGAN. 
 
 § 4697. 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 subsequent, of 
 such person. 
 
 § 4703. 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 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 purchasers. — Chap. 81. 
 Revised Statutes of Michigan. 
 
 § 4713. 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 
 
638 APPENDIX. 
 
 of debt given, suit commenced, decree or judgment suffered, with 
 like intent as against the persons so hindered, delayed or de- 
 frauded, shall be void. 
 
 § 4715. 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. 
 
 § 4716. 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. 
 
 § 4717. None of the provisions of this, or the last two pre- 
 ceding 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 fraudulent 
 intent of his immediate grantor, or of the fraud rendering void 
 the title of such grantor. 
 
 MINNESOTA. 
 
 § H. All deeds of gifts, ail 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 subsequent 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 pre- 
 sumed 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 purchasers. 
 
 § 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. 
 
APPENDIX. 639 
 
 § 17. Nothing contained in the two preceding sections shall 
 a PPty to contracts of bottomry or respondentia, nor assignments 
 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 sdon as possible, after the 
 arrival thereof within this State. 
 
 § IS. 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 persons so hindered, 
 delayed or defrauded, shall be void. 
 
 § 19: Erery 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 
 under the provisions of this title shall be deemed a question of 
 fact and not of law, and no conveyance or charge shall be 
 adjudged 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 what- 
 ever name it may be known in law, by which any estate or 
 interest in lands is created, aliened, assigned, or surrendered. — 
 Chap. 41, Tit. 3, page 335, Minnesota Revised, Statutes, 1866. 
 41 
 
640 APPENDIX. 
 
 MISSISSIPPI. 
 
 § 2983. Every gift, grant or conveyance of land, goods or 
 chattels, or of any rent, common, or other profit or charge, out of 
 the same, by writing or otherwise, and every bond, suit, judg- 
 ment 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 
 deceive those who shall purchase the same land, or any rent, 
 profit or commodity out of it, shall be from henceforth deemed 
 and taken only as against the person or persons, his, her or their 
 heirs, successors, executors, administrators or assigns, and every 
 one of them, whose debts, suits, demands, estates, or interests by 
 such guileful and covinous devices and practices as aforesaid shall 
 or might be in any wise disturbed, hindered, delayed or defrauded, 
 to be clearly and utterly void, any pretense, color, feigned con- 
 sideration, expressing of use, or any other matter or thing to the 
 contrary notwithstanding; and, moreover, if any conveyance be 
 of goods or chattels, and be not on consideration deemed valuable 
 in law, it shall be taken to be fraudulent within this act unless 
 the same be by will duly proved and recorded, or by writing 
 acknowledged or proved ; and such writing, if the same be for 
 real estate, shall be acknowledged or proved and recorded in the 
 county where the land conveyed is situated ; and if for personal 
 property, then in the county where the donee shall reside or the 
 property shall be ; and the proof or acknowledgment in either 
 case shall be taken or made and certified in the same manner as 
 conveyances of land are by law directed to be acknowledged or 
 proved and recorded, unless, in the case of personal property, 
 possession shall really and bona fide remain with the donee ; 
 and, in like manner, where any loan of goods and chattels shall 
 be pretended to have been made to any person with whom, or 
 those claiming under him, possession shall have remained for the 
 space of three years without demand made and pursued by due 
 course of law on the part of the pretended lender, or where any 
 reservation or limitation shall be pretended to have been made 
 of a use or property by way of condition, reversion, remainder, 
 
APPENDIX. 641 
 
 or otherwise, in goods or chattels, the possession whereof shall 
 have remained in another, as aforesaid, the same shall be taken, 
 as to the creditors and purchasers of the persons aforesaid so 
 remaining in possession, to be fraudulent within this article, and 
 that the absolute property is with the possession unless such 
 loan, reservation or limitation of use or property were declared 
 by will or by writing proved or acknowledged and recorded as 
 aforesaid. 
 
 § 2894. This act shall not extend to any estate or interest in 
 any lands, goods or chattels, or any rents, common or profit out 
 of the same, which shall be upon good consideration and bona 
 fide lawfully conveyed or assured to any person or persons, 
 bodies politic or corporate; nor shall it in any case extend to 
 creditors whose debts were contracted after such fraudulent act, 
 unless made with intent to defraud them ; and though a convey- 
 ance or contract be decreed void as to prior creditors, it shall not 
 on that account be void as to subsequent creditors or purchasers. 
 — Revised Code of Mississippi, Chap. 60. 
 
 MISSOUEI. 
 
 § 1. Every deed of gift and conveyance of goods and chattels 
 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 chattels, 
 or in things in action, or of any rents and profits issuing there- 
 from, and every charge upon lands, goods or things in action, or 
 upon the rents and profits thereof, and every bond, suit, judg- 
 ment, decree or execution, made or contrived with the intent to 
 hinder, delay or defraud creditors of their lawful actions, dam- 
 ages, forfeitures, debts or demands (or to defraud or deceive 
 those who shall purchase the same lands, tenements, heredita- 
 ments, or any rent, profit or commodity issuing [out] of them), 
 shall be from henceforth deemed and taken as against said credi- 
 tors and purchasers prior and subsequent to be clearly and utterly 
 void. 
 
642 APPENDIX. 
 
 § 7. This Act shall not extond 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 fide and lawfully conveyed ; 
 nor shall it be construed to avoid any deed as against any subse- 
 quent bona fide purchaser from the grantee for valuable con- 
 sideration, 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 con- 
 tinued 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. 
 
 NEYADA. 
 
 292, Seo. 64. Every sale made by a vendor of goods and 
 chattels in his possession, or under his control, and every assign- 
 ment of goods and chattels, unless the same be accompanied by 
 an immediate delivery, and be followed by an actual and con- 
 tinued change of possession of things sold or assigned, shall be 
 conclusive evidence of fraud as against the creditors of the ven- 
 dor or the creditors of the person making such assignment, or 
 subsequent purchasers in good faith. 
 
 297, Sec. 69. Every conveyance or assignment, in writing or 
 otherwise, of any estate or interests in lands or in goods in 
 action, or of any rents or profits issuing therefrom ; and every 
 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, dam- 
 ages, forfeitures, debts or demands ; and every bond or other evi- 
 dence of debt given, suits commenced, decree or judgment suf- 
 fered, with the like intent as against the persons hindered, de- 
 layed or defrauded, shall be void. 
 
 300, Seo. 72. The question of fraudulent intent in all cases 
 arising under the provisions of this act, shall be deemed a ques- 
 
APPENDIX. 643 
 
 tion 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. 
 
 301, Sec. 73. The provisions of this act 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. — Compiled Laws of Nevada. 
 
 NEW JERSEY. 
 
 1. Every deed of gift, and conveyance of goods and chattels, 
 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, covinous, 
 and fraudulent feoffments, gifts, grants, alienations, conveyances, 
 bonds, suits, judgments and executions, as well of lands and tene- 
 ments 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 demands, 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, agree- 
 ments, bargains, contracts and traffic between man and man, 
 without which no commonwealth or civil society can be main- 
 tained or continued : All and every feoffment, gift, grant, aliena- 
 tion, bargain and conveyance of lands, tenements, heredita- 
 ments, goods and chattels, or any of them, or of any lease, rent, 
 common or other profit or charge out of the same lands, tene- 
 ments, hereditaments, goods and chattels, or any of them, by 
 writing or otherwise, and all and every bond, suit, judgment and 
 execution, at any time heretofore 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 
 
644 APPENDIX. 
 
 person or those persons, his, her or their heirs, successors, execu- 
 tors, administrators 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 aforesaid, 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, ex- 
 pressing of use, or any other matter or thing to the contrary 
 not withstandirj g. 
 
 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 wit- 
 tingly 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 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 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, alienation, bargain, con- 
 veyance, bonds, suits, judgments, executions, leases, rents, com- 
 mons, profits, charges and other things aforesaid ; to be re- 
 covered in any court of record by action of debt, bill, plaint or 
 information. 
 
 6. This Act, or anything therein contained, shall not ex- 
 tend to, or be construed to impeach, defeat, make void or frus- 
 trate 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 lona fide, to 
 
APPENDIX. 645 
 
 • 
 
 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 covine, fraud 
 or collusion as aforesaid ; and also that no lawful mortgage 
 made, or to be made, bona fide, 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,'3Q4:. 
 [Nov. 26th, 1794, R. S. 499.] 
 
 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 subsequent, 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 credi- 
 tors 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 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.— Title 2, Revised 
 Statutes of New York. 
 
 § 1. Every conveyance or assignment, in writing or otherwise, 
 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, damages, forfeit- 
 
646 APPENDIX. 
 
 ures, 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 hindered, 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 creditors 
 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 consideration. 
 
 § 5. The provisions of this chapter shall not be construed in 
 any manner to affect or impair the title of a purchaser for a valu- 
 able consideration, unless it shall appear that such purchaser had 
 previous notice of the fraudulent intent of his immediate grantor, 
 or of the fraud rendering void the title of such grantor. — Title 3, 
 Revised Statutes of New York. 
 
 NORTH CAROLINA. 
 
 1. For avoiding and abolishing feigned, covinous, and fraud- 
 ulent gifts, grants, alienations, conveyances, bonds, suits, judg- 
 ments 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. 
 
 The General Assembly of North Carolina do enact, That 
 every gift, grant, alienation, bargain, and conveyance of lands, 
 tenements, hereditaments, goods and chattels, by writing or 
 otherwise, and every bond, suit, judgment, 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, executors, administrators, and 
 assigns, whose actions, debts, accounts, damages, penalties, and 
 forfeitures, by such covinous or fraudulent devices and practices 
 
APPENDIX. 647 
 
 aforesaid, are, shall, or might be in any way disturbed, hindered, 
 delayed or defrauded), 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 credi- 
 tors 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 tha indebtedness of the donor or settler at 
 such time shall be held and taken, as well with respect to credi- 
 tors 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 obser- 
 vations as may be right and proper. 
 
 4. Nothing contained in the foregoing sections shall be con- 
 strued to impeach or make void any conveyance, interest, limi- 
 tation of use or uses, of or in any lands or tenements, goods or 
 chattels, bona fide made, upon any for good consideration, to any 
 person not having notice of such fraud. — Chap 50, Revised Code 
 of North Carolina. 
 
 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 
 making the same, shall be, and hereby are declared to be void 
 and of no effect. 
 
 § 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 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. — Chap. 47, Revised 
 Statutes of Ohio. 
 
648 APPENDIX. 
 
 OKEG-ON. 
 
 § 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 
 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 
 the like intent as against the persons, so hindered, delayed or 
 defrauded, shall be void. — Deady's Statutes, Oregon Code, 656. 
 
 RHODE ISLAND. 
 
 Section 1. Every gift, grant or conveyance of lands, tene- 
 ments, 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 
 demands of what nature soever; or to deceive or defraud those 
 who shall purchase bona fide the same lands, tenements, heredita- 
 ments, goods, or chattels, or any rent, interest, or profit out of 
 them, shall be henceforth deemed and taken as against the per- 
 son or persons, his, her, or their heirs, successors, executors, 
 administrators, or assigns, and every of them, whose debts, suits, 
 demands, 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 pretense, color, feigned considera- 
 tion, expressing of use, or any other matter or thing to the con- 
 trary notwithstanding. — General Statutes of Rhode Island, 
 Chap. 162. 
 
 SOUTH CAROLINA. 
 
 Every feoffment, gift, grant, alienation, bargain and convey- 
 ance of land-s, tenements or hereditaments, or of any of them, or 
 
APPENDIX. 649 
 
 of any lease, rent, commons or profits, or charge out of the same, 
 by writing or otherwise, and every bond, suit, judgment and exe- 
 cution which may be had or made to or for any intent or purpose 
 to delay, hinder or defraud creditors and others of their just and 
 lawful actions, suits, debts, accounts, damages, penalties and for- 
 feitures, shall be deemed and taken (only as against that person 
 or persons, his, her or their heirs, successors, executors, adminis- 
 trators and assigns, and every of them, whose actions, suits, debts, 
 accounts, damages, penalties and forfeitures, by such guileful, 
 covinous or fraudulent devices and practices as is aforesaid, are, 
 shall or might be in any ways disturbed, 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. 
 § 18. Nothing contained in sections 15, 16 and 17 of this 
 chapter shall extend or be construed to impeach, defeat, make 
 void or frustrate 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, hereditaments heretofore at 
 any time 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, anything therein mentioned to the contrary not- 
 withstanding. — Revised Statutes of South Carolina, Chop. 82. 
 
 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, judg- 
 ment 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 heredita- 
 ments, or any rent, profit or commodity 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 
 
650 APPENDIX. 
 
 aforesaid, shall or might be in any wise disturbed, hindered, 
 delayed or defrauded-, to be clearly and utterly void ; any pre- 
 tence, color, feigned consideration, expressing of use, or any other 
 matter or thing to the contrary notwithstanding. — Statutes of 
 Tennessee, 1 Thompson & Steger, § 1759. 
 
 TEXAS. 
 
 Abt. 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 execu- 
 tion, 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, tenements 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, ad- 
 ministrators 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 dis- 
 turbed, hindered, delayed or defrauded, to be clearly and utterly 
 void; any pretence, color, feigned consideration, expressing of 
 use, or any other matter or thing to the contrary notwith- 
 standing. 
 
 Art. 3877. [3.] Be it further enacted, That the second sec- 
 tion 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 
 fide lawfully conveyed or assured to any person or persons, 
 bodies politic or corporate. — Act of January 18<A, 1840, Laws 
 of Texas, Paschal 's Digest. 
 
 VERMONT. 
 
 Chapter 1V3. 
 § 32. All fraudulent and deceitful conveyances of houses, 
 lands, tenements, or hereditaments, or of goods and chattels, all 
 
APPENDIX. 651 
 
 bonds, bills, notes, contracts and agreements, all suits, judgments 
 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, exe- 
 cutors, administrators, or assigns be null and void. 
 
 § 33. All the parties to such fraudulent and deceitful convey- 
 ances (of houses, &c), and to all such suits, &c, as are mentioned 
 in the preceding section, who, being privy 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, &c. ; which forfeitures shall be equally divided 
 between the party aggrieved and the county in which such 
 offense is committed, to be secured by action on the case founded 
 on this statute. 
 
 § 34. In any action^bfought 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. 
 
 Chapter 34. 
 
 § 48. If any person who is summoned as a trustee shall have 
 in his possession any goods, effects, or credits of the principal 
 defendant, which he holds by a conveyance or title that is void 
 as to the creditors of the defendant, he may be adjudged a trustee 
 on account of such goods, effects or credit, although the principal 
 defendant could not have maintained an action therefor against 
 him. 
 
 Chapter 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. 
 
652 APPENDIX. 
 
 VIKGINIA. 
 
 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, of or 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 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 ren- 
 dering 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 shalt 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, 
 because voluntary, it shall not for that cause be decreed to be 
 void as to subsequent creditors or purchasers. — Chap. 114, Code 
 of Virginia, 1873. 
 
 WEST VIEGINIA. 
 
 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, of or 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 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 ren- 
 dering void the title of such grantor. 
 
APPENDIX. 653 
 
 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 ; and 
 though it be decreed to be void as to a prior creditor, because 
 voluntary, it shall not for that cause be, decreed to be void as to 
 subsequent creditors or purchasers. — Chap. 74, Code of West 
 Virginia, 1868. 
 
 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 subsequent, 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 pre- 
 sumed 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 con- 
 clusive 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 in good faith, and without any intent to de- 
 fraud such creditors or purchasers. — Chap. 107, Revised Statutes 
 of Wisconsin, 1871. 
 
 § 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 de- 
 fraud 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, 
 
654 APPENDIX. 
 
 with the like intent, as against the persons so hindered, 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 con- 
 sideration. 
 
 § 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 purchaser had pre- 
 vious notice of the fraudulent intent of his immediate "grantor, 
 or of the fraud rendering void the title of such grantor. — Chap. 
 108, Remised Statutes of Wisconsin, 1871. 
 
INDEX 
 
 ACCOUNT for proceeds, 608. 
 
 for money on insurance policy, 610. 
 
 for rents, 610. 
 
 for profits, 610, 612. 
 
 for rents and profits from improvements, 612. 
 
 for money on a voluntary bond, 612. 
 
 for money loaned, 612. 
 
 for interest, 613. 
 
 no deduction for consideration, 613. 
 « no compensation for services, 614. 
 
 debt can not be set off, 614. 
 
 deduction in case of constructive fraud, 616. 
 
 by partner, 618. 
 
 by feme covert, 618. 
 
 for improvements, 618. 
 
 apportionment, 619. 
 
 retention of surplus, 621. 
 ACTION AT LAW, none in assumpsit, 527. 
 
 none in case, 527. 
 
 to try fraud, 529. 
 
 concurrent with equity, 530. 
 
 creditor may select, 530. 
 
 issues in, 530. 
 ACQUIESCENCE, creditor not bound by, 466. 
 
 creditor bound by ratification, 464. 
 ADMINISTEATOR, conveyance binding on, 445. 
 
 can not reconvey, 484. 
 ADVANCE, contract for future, is a good consideration, 23] . 
 
 mortgages for, 231. 
 
 judgments for, 232. 
 ADVICE of attorney admissible, 593. 
 42 
 
656 INDEX. 
 
 AGENT, notice to, of vendee, 205. 
 
 notice to, of purchaser, 495. 
 
 conveyance binding on debtor's, 445. 
 AGREEMENT, no suit on, 447, 554. 
 
 not enforceable in equity, 447. 
 
 when relief granted, 448. 
 
 between grantees, 453. 
 
 grantee can not enforce, 454. 
 
 to release dower not good consideration, 310. 
 ALIMONY, claim for, a good consideration, 305. 
 
 deed of separation, when valid, 305. 
 
 claim for, within the statute, 505. 
 ANCESTOR'S DEBTS protected by the statute, 505. 
 ANTECEDENT DEBTS, good consideration, 179, 225. 
 ANTE-NUPTIAL AGREEMENTS, settlement in. pursuance of, 
 valid, 302. 
 
 settlement must conform to articles, 302. 
 
 parole, void, 303. 
 
 parole not validated by marriage, 303. 
 
 parole not -validated by representations, 304. 
 ANTE-NUPTIAL SETTLEMENTS, when valid, 296. 
 
 both parties must be guilty of fraud, 296. 
 
 must relate to specific marriage, 297. 
 
 contemporaneous, 297. 
 
 what must contain, 298. 
 
 to whom extends, 298. 
 
 mere indebtedness does not vitiate, 299. 
 
 participation of wife, 300. 
 
 how far marriage is valuable consideration, 301. 
 ANSWER can not be amended, 557. 
 
 supplemental, 557. 
 
 what may be stated in supplemental, 557. 
 
 of purchaser must deny notice, 557. 
 
 evidence of defendant, 558. 
 
 when responsive, 558. 
 
 denial not conclusive, 558. 
 
 overcome by two witnesses, 559. 
 
 want of particularity, 559. 
 
 should be direct and specific, 560. 
 
 taken to be true when cause heard on, 560. 
 
 should set up statute of limitations, 560. 
 
INDEX. 657 
 
 APPOINTMENTS. See Power of Appointment 
 APPORTIONMENT, creditor need not make, 619. 
 
 when all parties before court, 619. 
 ASSENT presumed to an assignment, 334. 
 
 express avowal not necessary, 335. 
 
 express is retroactive, 335. 
 
 effect of renunciation by one, 835. 
 
 when not presumed, 336. 
 
 excluded by express requirements, 336. 
 
 no presumption where there are conditions, 336. 
 
 no presumption of, to fraudulent assignment, 337. 
 
 to deed by solvent debtor, 338. 
 ASSETS, property fraudulently conveyed is, 524. 
 ASSIGNEE, effect of abuse of trust by, 360. 
 
 responsibility of, 421. 
 
 of debt is a creditor, 506. 
 
 compensation of, 424. 
 
 of debt may unite with assignor, 547. 
 
 in bankruptcy has rights of creditors, 544. 
 
 ratification by accepting money, 469. 
 
 has sole right to sue, 544. 
 
 may join with creditors, 545. 
 
 upon refusal of, creditors may sue, 545. 
 
 may sell subject to transfer, 478. 
 
 may sell right to assail transfer, 478. 
 
 when tenant attorns to, 478. 
 ASSIGNEE FOR BENEFIT OP CREDITORS, debtor may select, 
 374. 
 
 may be a creditor, 374. 
 
 may be a joint debtor, 374. 
 
 may be a relative, 374. 
 
 when not a partner, 374. 
 
 president of a corporation, 374. 
 
 vacancies may be filled, 374. 
 
 debtor can not remove, 374. 
 
 can not file bill, 546. 
 
 must be designated, 346. 
 
 assignment must be delivered to, 346. 
 
 must accept, 347. 
 
 presumption of acceptance, 347. 
 
658 INDEX. 
 
 ASSIGNEE FOE BENEFIT OE CEEDITOES— continued. 
 
 need not sign, 347. 
 
 acceptance implied from acts, 347. 
 
 can not accept in part, 348. 
 
 effect of rejection by one, 348. 
 
 must be a proper person, 375. 
 
 non-resident, 376. 
 
 blind, 376. 
 
 ignorant, 376. 
 
 insolyent, 376. 
 
 may employ debtor, 378. 
 
 can not declare uses subsequently, 383. 
 
 purchaser for value, 360. 
 
 notice to, of fraud, 360. 
 
 participation in fraud vitiates assignment, 301. 
 
 can not permit concealment of assets, 402. 
 ASSIGNMENTS EOE THE BENEFIT OF CEEDITOES. 
 
 modern device, 329. 
 
 differ from composition, 329. 
 
 differ from deed of trust in nature of mortgage, 330. 
 
 differ from deed of trust by solvent debtor, 330. 
 
 why called voluntary, 331. 
 
 distinction between general and partial, 331. 
 
 essential elements of, 331. 
 
 creditors need not be parties, 332. 
 
 nominal consideration sufficient, 333. 
 
 debts are the real consideration, 334. 
 
 assent of creditors presumed, 334. 
 
 assent is retroactive, 335. 
 
 limitation of implied assent, 335. 
 
 express requirement excludes implied assent, 336. 
 
 no presumption of assent where there are conditions, 336. 
 
 no presumption of assent to fraudulent assignment, 337. 
 
 creditors may reject, 338. 
 
 the refusal of one creditor does not vitiate, 338. 
 
 when assent of all required, 338. 
 
 when levy equivalent to revocation, 339. 
 
 irrevocable, 339. 
 
 when revocable, 339. 
 fraudulent, may be altered, 340. 
 
INDEX. 659 
 
 ASSIGNMENTS FOR BENEFIT OF CREDITORS— continued. 
 debtor alone cannot change, 340. 
 mode of alteration, 341. 
 one void deed not helped by another, 342. 
 deed of r evocation under power, 342. 
 fraudulent, must be abandoned, 342. 
 form of, 342. 
 
 when seal not required, 343. 
 may consist of three parts, 343. 
 schedules, 343. 
 list of creditors, 344. 
 additions to list, 345. 
 
 omission of schedules a badge of fraud, 346. 
 must designate assignee, 346. 
 must be delivered, 346. 
 what delivery sufficient, 347. 
 must be accepted by assignee, 347. 
 presumption of acceptance, 347. 
 assignee need not sign, 347. 
 acceptance implied from acts, 347. 
 acceptance by one assignee sufficient, 348. 
 can not be accepted in part, 348. 
 assignee's title, 348. 
 notice to creditors, 348. 
 legal effect of, 348. 
 incident of ownership, 349. 
 who may make, 350. 
 by corporation, 350. 
 by executor, 350. 
 by partner, 350. 
 by partner with authority, 351. 
 by partner in emergencies, 352. 
 by partner during absence of partner, 352. 
 by partner with assent, 352. 
 dormant partner need not execute, 352. 
 by surviving partner, 352. 
 by minor, 352. 
 
 incidental delay does not vitiate, 352. 
 there must be fraudulent intent, 353. 
 intent to defeat execution, 355. 
 
660 INDEX. 
 
 ASSIGNMENTS FOR BENEFIT OF CREDITORS— continued. 
 not affected by insolvency, 356. 
 no inquiry into secret motives, 357. 
 not vitiated by stratagem, 357. 
 fraud in the creation of debt, 358. 
 must be bona fide, 358. 
 prevention of sacrifice, 359. 
 fraud must be in the beginning, 359. 
 founded on valuable consideration, 333, 360. 
 participation by assignee, 360. 
 notice of fraud to assignee, 361. 
 construction of, 362. 
 no evidence to vary legal effect, 362. 
 several instruments construed together, 363. 
 several instruments, execution of, on same day, 363. 
 one fraudulent clause renders void, 364. 
 effect of clause inserted by mistake, 365. 
 construed strictly, 365. 
 burden of proof, 365. 
 effect of ambiguous terms, 366. 
 no presumption of illegal act, 366. 
 rule of construction, 368. 
 controlled by lex loci, 368. 
 debtor may be embarrassed, 369. 
 may be voluntary, 369. 
 may convey all, 369. 
 need not convey all, 369. 
 need not convey separate estates, 369. 
 solvent debtor may make, 369. 
 solvent debtor can not protect surplus, 370. 
 solvent debtor, prevention of sacrifice, 371. 
 solvent debtor, proof of solvency, 372. 
 
 solvent debtor, nominal difference between assets and liabili- 
 ties, 372. 
 solvent debtor's belief of solvency, 372. 
 debtor may select assignee, 374. 
 who may be assignee, 374. 
 no power to remove assignee, 374. 
 assignee's qualifications, 375. 
 disqualifications a badge of fraud, 377. 
 
INDEX. 661 
 
 ASSIGNMENTS FOE BENEFIT OF CEEBITOES-continued 
 omission to record, 377. 
 change of possession, 378. 
 employment of debtor, 378. 
 debtor's advice, 379. 
 no power of revocation, 380. 
 power to make loans, 380. 
 uses must be declared, 381. 
 subsequent schedules, 382. 
 assignee can not declare uses, 383. 
 fictitious debts, 383. 
 creditor may impeach debt, 384. 
 debt barred by statute of frauds, 385. 
 debt barred by release, 385. 
 claim of debtor's wife, 385. 
 provision for sureties, 386. 
 provision for secured debts, 387. 
 what debts may be provided for, 388. 
 debt due to firm of which the assignor is partner, 388. 
 debt due to partner, 388. 
 by firm for private debt, 389. 
 
 for separate debt when assignment includes separate pro- 
 perty, 389. 
 debt in name of one partner, 390. 
 for joint debts, 390. 
 after dissolution of partnership, 390. 
 separate property to firm debts, 390. 
 disposition of surplus by partnership, 391. 
 equal distribution favored, 392. 
 preferences may be given, 393. 
 preferences to defeat others,. 396. 
 secret motives for preference, 397. 
 postponement of interest, 398. 
 no reservation for benefit of debtor, 398. 
 no provision for debtor's family, 399. 
 no continuance of business, 400. 
 right of possession, 401. 
 effect of concealing assets, 402. 
 exception from operation, 403. 
 residuary interests, 404. 
 
662 INDEX. 
 
 ASSIGNMENTS FOR BENEFIT OE CREDITORS— continued. 
 
 reservation of surplus, 405. 
 
 reservation of surplus, when fraudulent, 405. 
 
 reservation of surplus by firm, 406. 
 
 reservation of surplus after payment of all, 407. 
 
 delay in closing trust, 408. 
 
 time must be reasonable, 408. 
 
 discretion of assignee in regard to sales, 410. 
 
 when delay of sale fraudulent, 411. 
 
 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. 
 
 sell at public or private sale, 415. 
 
 prohibition of sales on credit, 416. 
 
 sales on credit, 416. 
 
 delay of distribution, 418. 
 
 power to compromise bad debts, 418. 
 
 sale of bad debts, 420. 
 
 assignee's power over property, 420. 
 
 assignee's power to mortgage, 421. 
 
 assignee must be held to ordinary diligence, 421. 
 
 diligence in getting property, 423. 
 
 diligence in selecting agents, 423. 
 
 provisions for expenses, 423. 
 
 compensation of assignee, 424. 
 
 assignee can not act as attorney, 424. 
 
 employment of attorney, 425. 
 
 expenses of debtor, 426. 
 
 requirements for dividend, 426. 
 
 composition with the creditors, 427. 
 
 postponement of creditors who sue, 427. 
 ASSIGNMENTS EXACTING RELEASES, are fraudulent, 428. 
 
 release while property remains open, 435. 
 
 must convey all, 435. 
 
 no reservation of share of dissenting creditor, 436. 
 
 reservation of surplus, 437. 
 
 evidence that all is conveyed, 438. 
 
 what words are sufficient, 438. 
 
 partners must unite, 438. 
 
INDEX. 663 
 
 ASSIGNMENTS EXACTING EELEASES— continued. 
 
 dower need not be released, 438. 
 
 absconding with funds, 439. 
 
 time for acceptance, 439. 
 
 ambiguity, 440. 
 
 preferences, 440. 
 
 form of release, 441. 
 
 release by partner, 441. 
 
 how far binding on creditors who assent, 442. 
 ATTACHMENT, transfer to defeat, is fraudulent, 505. 
 
 sufficient to justify seizure, 462. 
 
 void attachment no justification, 462. 
 
 valid seizure under, 523. 
 
 possession under, 523. 
 
 delay, 523. 
 
 quashing by subsequent attaching creditor, 523. 
 
 sheriff after, may file bill, 545. 
 
 sheriff and creditor may join, 547. 
 
 proof of, as against grantee, 463. 
 
 creditor's debt must be established, 463. 
 
 when defeated by plea of set-off, 464. 
 ATTOENEYS, provision for fees of, 425. 
 
 assignee may employ, 425. 
 
 may be paid out of fund, 573. 
 
 assignment can not name, 425. 
 
 taking fraudulent conveyance, 450. 
 BADGES OF FEAUD, definition of, 31. 
 
 explanation of, 32. 
 
 not of equal weight, 33. 
 
 vary with each case, 33. 
 
 effect of, 33. 
 
 one sufficient, 33. 
 
 concurrence of several, 33. 
 
 instructions, 34. 
 
 no enumeration possible, 34. 
 
 transfer of all, 34. 
 
 generalities, -36. 
 
 embarrassment, 36. 
 
 indebtedness, 37. 
 
 pendency of suit, 37. 
 
664 INDEX. 
 
 DGES OP PEAUD— continued. 
 secrecy, 38. 
 concealment, 39. 
 omission to record deed, 39. 
 secret trust, 40. 
 false recitals, 40. 
 absolute deed as mortgage, 41. 
 right to repurchase, 42. 
 false statement of consideration, 42. 
 discrepancy between amount due and amount secured, 43. 
 judgment for more than is due, 43. 
 antedating instruments,, 44. 
 inadequacy, 44. 
 fictitious consideration, 46. 
 excessive mortgage, 46. 
 duration of mortgage, 46. 
 unusual credit on sale, 47. 
 notes drawn for a long time, 48. 
 perishable articles, 48. 
 possession of land, 49. 
 acts of ownership, 49. 
 
 departure from usual course of business, 51. 
 unusual clauses, 51. 
 unusual mode of payment, 54. 
 calling witnesses, 54. 
 absence of evidence, 54. 
 proof of payment, 55. 
 mere production of notes, 55. 
 want of precision in evidence, 56. 
 relationship, 56. 
 confidential friend, 59. 
 delay, 59. 
 possession, 61. 
 BANKBUPTCY, ratification by accepting fund, 469. 
 assignee may sell subject to transfer, 478. 
 assignee may sell right to assail transfer, 478. 
 attornment of tenant to assignee, 478. 
 assignee is a creditor, 507. 
 assignee may file bill, 544. 
 assignee may join creditors, 545. 
 
INDEX. 665 
 
 BANKRUPTCY— continued. 
 
 creditors may make assignee party k defendant, 545. 
 
 creditors may enforce liens, 545. 
 
 creditors can not levy after, -544. 
 BENEFIT, no reservation of, in assignment, 398. 
 
 giving creditors only rents and profits, 399. 
 
 continuance of business, 400. 
 
 demanding indulgence, 400. 
 
 expense of release, 400. 
 
 future advances, 401. 
 
 exemption from suit, 401. 
 
 reservation for member of firm, 401. 
 
 right to possession, 401. 
 
 concealment of property, 402. 
 
 transfer to use of grantor, 209. 
 
 what benefits may be reserved, 213. 
 
 secret trust, 214. 
 
 collusion, 216. 
 
 fictitious consideration, 217. 
 
 bounty of creditor, 193. 
 
 gift can not be enforced, 222. 
 
 bounty of purchaser, 217. 
 BILL IN EQUITY, when may be brought, 530. 
 
 purchase in name of another, 531. 
 
 choses in action, 532. 
 
 complainant must have lien, 533. 
 
 what lien is sufficient, 535. 
 
 return of execution unsatisfied, 537. 
 
 second execution, 538. 
 
 kind of judgments, 539. 
 
 equitable demand, 540. 
 
 after death of grantor, 540. 
 
 executors de son tort, 541. 
 
 not necessary to proceed against estate, 542. 
 
 administrator, 542. 
 
 non-residents, 542. 
 
 no relief at law, 543. 
 
 objection for want of lien, 543. 
 
 fraudulent judgments, 543. 
 
 other property, 543. 
 
666 INDEX. 
 
 BILL IN EQUITY— continued. 
 
 in case of bankruptcy, 544. 
 
 by receivers, 545. 
 
 by sheriff, 545. 
 
 by assignee, 546. 
 
 by purchaser, 546. 
 
 joinder of parties complainant, 546. 
 
 joinder of parties defendant, 548. 
 
 averments in, 551. 
 
 should state facts, 552. 
 
 charge of fraud, 553. 
 
 endorser can not prosecute pending, 554. 
 
 objection to, how taken, 555. 
 BONA FIDES OF THE TEANSPBK does not validate voluntary 
 conveyance, 268. 
 
 ground for protecting innocent vendee, 195. 
 
 no protection without valuable consideration, 198. 
 
 there must be good faith, 199. 
 
 fraud when full price is paid, 199. 
 
 exchange of lands, 200. 
 
 notice to grantee, 200. 
 
 knowledge of insolvency, 201. 
 
 knowledge of judgment, 201. 
 
 knowledge of attachment, 201. 
 
 actual knowledge not requisite, 201. 
 
 what puts party on inquiry, 202. 
 
 debtor's relative, 202. 
 
 not knowledge of full intent, 203. 
 
 motives need not be the same, 203. 
 
 subsequent co-operation, 204. 
 
 notice to agent, 205. 
 
 sale to pay debts, 205. 
 
 mere intent to defeat execution, 206. 
 
 disposition of proceeds, 207. 
 
 retention of part, 207. 
 
 provision for creditors, 208. 
 
 inadequacy, 208. 
 
 sale on credit, 209. 
 
 use of grantor, 209. 
 
 resulting trust, 211. 
 
INDEX. 667 
 
 BONA FIDES OF THE TEANSFEE— continued. 
 
 reservation of benefits, 213. 
 
 secret trust, 214. 
 
 right of possession, 216. 
 
 collusion, 216. 
 
 note as fictitious consideration, 217. 
 
 purchaser's bounty, 217. 
 
 power to rescind contract, 218. 
 
 right to repurchase, 216, 218. 
 
 support of debtor, 218. 
 
 support of debtor when full consideration given, 219. 
 
 support of debtor when solvent, 220, 
 BONA FIDE PUECHASBES, protected by the statute, 490. 
 
 when purchaser is, 493. 
 
 pre-existing debt, 493. 
 
 relinquishment of security, 493. 
 
 notice before payment, 493. 
 
 notice before conveyance, 493. 
 
 giving security, 494. 
 
 mortgagee, 494. 
 
 put on inquiry, 494. 
 
 from whom notice may be derived, 494. 
 • fraud on face of instrument, 495. 
 
 chattel mortgage, 495. 
 
 subsequent judgment, 496. 
 
 subsequent purchase under execution, 497. 
 
 purchase after issue of execution, 497. 
 
 purchase pendente lite, 497. 
 
 purchase after sale under execution, 497. 
 
 marriage, 498. 
 
 purchase under fraudulent judgment, 498. 
 
 purchase from bona fide purchaser, 499. 
 
 creditor, 499. 
 
 creditor can not take mortgage notes, 501. 
 BUBDEN OP PEOOP. See Onus Pkobandi. 
 CHATTELS, transfers to use of grantor, 209. 
 
 resulting trust, 211. 
 
 what benefits may be reserved, 213. 
 
 within the statute, 238. 
 
668 INDEX. 
 
 OHOSES^IN ACTION, within the statute, 239. 
 
 equity sets aside transfers of, 239, 532. 
 
 settlement of, on wife, 307. 
 
 a valuable consideration, 307. 
 COMPROMISE, assignee may, 419. 
 
 power favorable to creditors, 419. 
 CONSIDERATION", antecedent debt, 179. 
 
 right of possession, 216. 
 
 support of debtor, 219. 
 
 illegal, 222. 
 
 parole agreement to give, 222. 
 
 what the law would compel, 222. 
 
 waiver of statutory defences, 222. 
 
 waiver of statute of limitations, 223. 
 
 waiver of discharge in bankruptcy, 223. 
 
 waiver of statute of frauds, 223. 
 
 waiver of parol of ante-nuptial agreement, 223, 303. 
 
 waiver of voluntary release, 224. 
 
 promise to pay, 225. 
 
 check, 225. 
 
 annuity, 225. 
 
 existing debt, 225. 
 
 liability, 225. 
 
 unliquidated debt, 225. 
 
 note taken at time of advance, 226. 
 
 counter security by surety, 226. 
 
 debt of another, 226. 
 
 voluntary bond, 226. 
 
 interest, 227. 
 
 note of minor, 227. 
 
 note of feme covert, 227. 
 
 prior judgment, 227. 
 
 promise to pay debts, 227. 
 
 release of equity of redemption, 228. 
 
 deception in marriage, 229. 
 
 indemnity for illicit intercourse, 229. 
 
 illicit cohabitation, 229. 
 
 damages for seduction, 229. 
 
 separate debts of partners, 229. 
 
 transfer to copartner, 230. 
 
INDEX. 669 
 
 CONSIDERATION— continued. 
 
 firm debt for transfer by partner, 230. 
 
 loan to stockholder, 231. 
 
 future advances, 231. 
 
 services between members of the same family, 232. 
 
 board of child, 232. 
 
 earnings of minor, 232. 
 
 earnings of wife, 232. 
 
 contract for emancipation, 233. 
 
 cla^m for alimony, 305. 
 
 deed of separation, 305. 
 
 wife's property, 306. 
 
 recital, prima facie proof of, 594. 
 
 declarations, evidences of, 574, 595. 
 
 when proof of, necessary, 595. 
 
 when none expressed, 596. 
 
 proof of additional, 596. 
 
 from other parties, 597. 
 
 contemporaneous instruments, 597. 
 
 notes and judgments, 598. 
 
 can not be varied, 598. 
 
 wife's clioses in action, 307. 
 
 wife's separate estate, 309. 
 
 right of dower, 310. 
 CONSTRUCTION, statute liberally construed, 11. 
 
 not to injure third persons, 12. 
 
 of deed a question of court, 362. 
 
 several instruments construed together, 363. 
 
 assignments construed strictly, 365. 
 
 when deed is ambiguous, 366. 
 
 no inference of unlawful intent, 366. 
 
 law of State where made, 368. 
 CONTRACTS, FRAUDULENT, can not be enforced, 447. 
 
 equity not enforce, 447. 
 
 trusts in fraudulent deed, 448. 
 
 when parties are not in pari delicto, 448. 
 
 when claim against grantor is unfounded, 452. 
 
 upon rescission of fraudulent conveyance, 452. 
 
 bill to redeem, 453. 
 
 between grantees, 453. 
 
670 INDEX. 
 
 CONTKACTS, FKAUDULENT— continued. 
 
 actions at law, 454. 
 
 no action on note, 455. 
 
 bona fide holder, 455. 
 
 promise to innocent third party, 455. 
 
 grantee can not enforce, 456.. 
 
 grantee can not sue on note, 457. 
 
 grantee can not sue on covenant, 457. 
 CONVEYANCE, all kinds within the statute, 234. 
 
 forfeiture by tenant, 255. 
 
 outlawry, 255. 
 
 cancellation of debt, 255. 
 
 note in name of another, 255. 
 
 remission of rent, 256. 
 
 assignment of lien, 257. 
 
 dissolution of partnership, 257. 
 
 judgment, 259. 
 
 sale under execution, 260. 
 
 purchase with debtor's money, 261. 
 
 good between parties, 443. 
 
 binds the grantor's heirs, 444. 
 
 binds the grantor's executors, 444. 
 
 binds the grantor's administrators, 445. 
 
 binds the grantor's agents, 445. 
 
 binds the grantor's vendees, 446. 
 
 estoppel by covenant, 446. 
 
 rights of grantees, 453. 
 
 valid against third parties, 458. 
 
 valid against debtor's tenant, 458. 
 
 valid against prior mortgagee^ 458. 
 
 valid against wrongdoers, 459. 
 
 valid against grantee's tenant, 459. 
 
 valid against grantee's bailee, 459. 
 
 valid against stockholders, 459. 
 
 valid against party liable for demand, 459. 
 
 valid against creditors without legal process, 460. 
 
 valid against void attachment, 462. 
 
 valid against void levy, 462. 
 
 valid against levy after return day, 462. 
 
 valid against levy out of bailiwick, 462. 
 
INDEX. 671 
 
 CONVEYANCE— continued. 
 
 valid against void judgment, 462. > 
 
 valid against illegal distress, 463. 
 
 valid against fraudulent judgment, 463. 
 
 valid against satisfied judgment, 463. 
 
 valid against debtor's grantee, 464. 
 COEPORATION, may be guilty of intent to defraud, 29. 
 
 may make assignment, 350. 
 
 may give preferences, 396. 
 COSTS, in discretion of court, 572. 
 
 to successful party, 572. 
 
 in case of constructive fraud, 572. 
 
 peculiar hardship to creditor, 573. 
 
 improper conduct on part of defendant, 573. 
 
 purchaser, 573. 
 
 necessary party, 573. 
 
 assignee, 573. 
 
 counsel fees, 573. 
 COVENANT, estoppel by, in fraudulent deed, 446. 
 
 in marriage articles, 302. 
 
 in deed of separation, 305. 
 CREDITORS, WHO ARE, must have lawful claim, 502. 
 
 pretended claim, 502. 
 
 illegal claim, 502. 
 
 liberal construction of term, 502. 
 
 demand need not be due, 503. 
 
 contingent claim, 503. 
 
 liability as surety, 503. 
 
 damages, 504. 
 
 voluntary bonds, 504. 
 
 slander, 504. 
 
 tort, 504. 
 
 promise to marry, 504. 
 
 support of bastard, 505. 
 
 false representation, 505. 
 
 forfeitures, 505. 
 
 usurious interest, 505. 
 
 marriage settlement, 505. 
 
 alimony, 505. 
 
 demand against stockholder, 505. 
 
 43 
 
672 INDEX. 
 
 CREDITORS, WHO ARE— continued. 
 
 debts of ancestor, 505. 
 
 liability as 1 partner, 503, 506. 
 
 accommodation endorser, 506. 
 
 assignee of claim, 506. 
 
 sheriff, 506. 
 
 purchaser, 506. 
 
 assignee in bankruptcy, 507. 
 
 receiver, 507. 
 
 judgment for costs, 509. 
 
 judgment for prior and subsequent debt, 509. 
 
 change of evidence of debt, 509. 
 
 at what time right accrues, 507. 
 CREDITORS, RIGHTS OP, have no title in the debtor's property, 1 3. 
 
 have equal rights, 179. 
 
 may secure a preference, 183. 
 
 may seek payment though others lose debts, 185. 
 
 may purchase from grantee, 499. 
 
 can not take fraudulent notes, 500. 
 
 knowledge of intent to defeat execution, 187. 
 
 must act in good faith, 190. 
 
 secret trust, 191. 
 
 gifts to debtor's family, 193. 
 
 may purchase, 194. 
 
 presumption of assent to assignment, 334. 
 
 when presumption of assent is excluded, 336. 
 
 may reject assignment, 338. 
 
 effect of rejection, 338. 
 
 must have legal process, 460. 
 
 may set off his own debt, 463. 
 
 proof of right to seize, 463. 
 
 claim under deed, 464. 
 
 ratification, 464. 
 
 notice to, 466. 
 
 acquiescence, 466. 
 
 assent of others, 467. 
 
 agreement for consideration, 467. 
 
 when trustee, 465. 
 
 advice, 465. 
 
 receiving proceeds, 468. 
 
index. 673 
 
 CREDITOKS, RIGHTS OP— continued. 
 estoppel, 469. 
 must return benefit, 472. 
 priority of liens, 474. 
 can not levy on profits, 478. 
 can not levy on proceeds, 478. 
 may treat partition by grantee as valid, 480. 
 after transfer, 480. 
 can not enjoin transfer, 527. 
 no assumpsit or case against grantee, 527. 
 change of remedy, 529. 
 action at law, 529. 
 bill in equity, 530. 
 
 DEB^tafesemSn^sign^n^ 344^ '7 
 
 described by name of creditor, 345. / 
 
 amount omitted, 345. 
 
 amount written on schedule by creditors, 345. 
 
 future enumeration, 345. 
 DECLARATION'S, when part of the res gestae, 580. 
 
 contemporaneous, 581. 
 
 remote, 582. 
 
 of conspirators, 584. 
 
 conspiracy must be established, 585. 
 
 subsequent, 587. 
 
 while in possession, 588. 
 
 in favor of grantee, 589. 
 DECREE, form of, 566. 
 
 for sale, 567. 
 
 on bill by purchaser, 567. 
 
 when conclusive, 568. 
 DISTRIBUTION", when only one complainant, 568. 
 
 when several complainants, 569. 
 
 among creditors at large, 570. 
 
 equitable lien, 570. 
 
 when several bills have been filed, 570. 
 
 equitable liens subject to other liens, 571. 
 
 costs, 572. 
 DONEE. See Voluntaby Settlement. 
 DONOR. See Voluntary Settlement. 
 
674 INDEX. 
 
 DOWER, good consideration, 310. 
 
 release without promise, 310. 
 
 mere promise to release, 310. 
 
 in property conveyed, 481. 
 
 after mortgage, 481. 
 
 purchase in name of another, 481. 
 
 not affected by fraud, 618. 
 EARNINGS of child, not good consideration, 232, 252. 
 
 of wife, not good consideration, 232,|;252. 
 
 debtor may claim his own, 247. 
 
 debtor may protect his earnings, 248. 
 
 debtor can not assign future, 248. 
 
 debtor can not accumulate, 248. 
 
 of child after emancipation, 252. 
 
 of child subject to support, 253. 
 EMANCIPATION, contract for, a good consideration, 233. 
 
 •child's claim to earnings after, 253. 
 
 marriage is, 253, 
 EQUITY may set aside conveyances partially voluntary, 294. 
 
 relieve against fraud, 530. 
 
 when there is a remedy at law, 531. 
 
 purchase in the name of another, 531. 
 
 transfer of choses in action, 532. 
 
 when creditor must have lien, 533. 
 
 when execution must be issued, 536. 
 
 attachment, 536. 
 
 garnishment, 536. 
 
 warrant of distress, 536. 
 
 return of execution unsatisfied, 537. 
 
 return before return day, 538. 
 
 second execution, 538. 
 
 kind of judgments, 539. 
 
 judgment against joint debtors, 539. 
 
 equitable demand, 540. 
 
 after death of debtor, 540. 
 
 executor de son tort, 541. 
 
 non-residents, 542. 
 
 relief against fraudulent judgment, 543. 
 
 exercises discretion, 544. 
 
 decree limited to bill, 566. 
 
INDEX. 675 
 
 EQUITY— continued. 
 
 sell the property, 567. 
 
 distribution of proceeds, 569. 
 
 creditors at large, 570. 
 
 among liens, 570. 
 
 costs, 572. 
 
 proof in equity, 605. 
 
 equity follows proceeds, 608. 
 
 account for rents and profits, 610. 
 
 no indejnnity in case of actual fraud, 613. 
 
 no set-off, 614. 
 
 indemnity in case of constructive fraud, 616. 
 
 improvements, 618. 
 
 apportionment, 619. 
 ESTOPPEL, by agreement, 467. 
 
 receipt of dividend, 468. 
 
 receipt of purchase money by assignee, 469. 
 
 grantor, 446. 
 
 advice, 465. 
 
 taking fraudulent note, 468. 
 
 not by provision in assignment, 469. 
 
 not by attachment, 469. 
 
 appropriation under execution, 469. 
 
 must be recognition of validity, 472. 
 
 when others sell, 469. 
 
 return of benefit, 472. 
 
 privies, 465. 
 
 by covenant, 446. 
 EVIDENCE, inadmissible to support fraudulent deed, 362. 
 
 to show date of debt, 509. 
 
 proof of debt, 574. 
 
 grantor's declarations as to debt, 574. 
 
 grantor's notes, 574. 
 
 grantor's accounts, 574. 
 
 judgment against grantor, 574. 
 
 judgment against administrator, 575. 
 
 judgment by confession, 575. 
 
 of debt only prima facie, 576. 
 
 that debt does not exist, 576. 
 
 limited to pleadings, 578. 
 
676 INDEX. 
 
 E VIDEN CE— continued. 
 
 wide range allowed, 579. 
 
 precise limits can not be drawn, 579. 
 
 secret trust, 580. 
 
 res gestm, 580. 
 
 prior acts of grantor, 582. 
 
 prior declaration of grantor, 582. 
 
 only proximate, declarations, 583. 
 
 prior transfers, 583. 
 
 declarations of conspirators, 584. 
 
 proof of confederacy, 585. 
 
 subsequent declarations inadmissible, 587. 
 
 declarations with assent of grantee, 587. 
 
 declarations to contradict witness, 588. 
 
 declarations in possession, 588. 
 
 character of possession, 589. 
 
 in favor of grantee, 589. 
 
 possession must be shown, 589. 
 
 declaration must explain possession, 589. 
 
 relation of the parties, 590. 
 
 contemporaneous transfers between parties, 590. 
 
 subsequent transfers between parties, 590. 
 
 conduct in relation to property, 590. 
 
 contemporaneous acts, 591. 
 
 no evidence of character, 592. 
 
 indebtedness, 591. 
 
 intoxication, 591. 
 
 grantee's inability to purchase, 592. 
 
 false recitals, 592. 
 
 concealment, 592. 
 
 purchases, 592. 
 
 declarations of co-tenant, 593. 
 
 attorney's advice, 593. 
 
 intent of another, 593. 
 
 intent of witness, 593. 
 
 debtor's testimony, 593. 
 
 suppositions, 594. 
 
 abstract opinions, 594. 
 
 recitals in deeds, 594. 
 
 debtor's declarations in regard to consideration, 595. 
 
INDEX. 677 
 
 EVIDENCE— continued. 
 
 to change character of deed, 595. 
 
 when no consideration is expressed, 596. 
 
 additional valuable consideration, 596. 
 
 consideration from third parties, 597. 
 
 contemporaneous deeds, 597. 
 
 consideration of note, 598. 
 
 consideration of judgment, 598. 
 
 to vary consideration, 598. 
 
 on the part of grantee, 599. 
 
 burden of proof, 600. 
 
 circumstantial, 600. 
 
 mode of proof, 601. 
 
 inference of fraud, 601. 
 
 amount of proof, 603. 
 
 suspicions, 603. 
 
 conjectures, 603. 
 
 consistent with honesty, 603. 
 
 not inconsistent with other theory, 603. 
 
 must be satisfactory, 604. 
 
 strong presumption, 604. 
 
 not beyond reasonable doubt, 605. 
 
 rational belief, 605. 
 
 payment of price, 605. 
 
 sanfe in equity as in law, 605. 
 
 inadequacy of consideration, 606. 
 EXECUTION, creditor must have, 460. 
 
 fraud in, 516. 
 
 direction to postpone levy, 517. 
 
 direction to postpone sale, 518. 
 
 effect of countermand, 518. 
 
 delay for specified time, 518. 
 
 delay a badge of fraud, 518. 
 
 possession after levy, 519. 
 
 consuming property, 519. 
 
 delay in sale, 520. 
 
 sale of cumbrous property, 520. 
 
 sale of land, 521. 
 
 setting aside execution, 522. 
 
 summary, 522. 
 
678 INDEX. 
 
 EXECUTION— continued. 
 
 issue, 522. 
 
 fraud in sales under, 261. 
 
 purchase with debtor's money, 261. 
 
 inadequacy of price, 263. 
 
 fraudulent sales, 263. 
 
 redemption of land, 257. 
 
 intent to defeat, not fraudulent, 21, 187, 355, 396. 
 
 purchase after issue of, 497. 
 EXECTJTOK, may make assignment, 350. 
 
 bound by transfer, 445. 
 
 when a proper party, 548. 
 EXECTJTOK de son tort, who is, 524. 
 
 when there is a rightful executor, 524. 
 
 may be sued by executor, 524. 
 
 only of personal estate, 525. 
 
 after sale, 525. 
 
 upon removal to another State, 525. 
 
 form of action, 525. 
 
 can not retain debt, 526. 
 EXEMPTED PEOPEKTY, transfer of, not fraudulent, 245. 
 
 colorable transfer void, 246. 
 
 conversion of assets into, 245. 
 
 none after transfer, 482. 
 
 grantee may retain, 620. 
 FEME 00 VERT. See Husband and Wife. 
 FORFEITURES, within the statute, 502. 
 
 for offences, 506. 
 FRAUD, at common law, 7. 
 
 construction against, 11. 
 
 what constitutes, 15. 
 
 elements of, 16. 
 
 what intent requisite, 17. 
 
 kind of fraud within the statute, 17. 
 
 not fraud on the public, 18. 
 
 fraud on one person, 18. 
 
 fraud on debtor, 18. 
 
 definition of, 19. 
 
 mere intention, 19. 
 
 delay, 19. 
 
INDEX. 679 
 
 FRAUD — continued. 
 
 definition of hindrance, 20. 
 
 ascertainment, 22. 
 
 fraud in fact, 22. 
 
 question for jury, 22. 
 
 fraud in law, 22. 
 
 no difference between fraud in fact and fraud in law, 24. 
 
 depends on legal intent, 25. 
 
 question of law, 26. 
 
 prevention of sacrifice, 27. 
 
 must be in the beginning, 28. 
 
 accident, 28. 
 
 mistake, 28. 
 
 by corporation, 29. 
 
 badges of, 31. 
 
 preferences, 179. 
 
 notice of, 200. 
 
 proof of, 579. 
 
 burden of proof, 600. 
 
 mode of proof, 601. 
 
 may be presumed, 601. 
 
 amount of proof, 603. 
 
 same at law as in equity, 605. 
 FUTURE ADVANCES, good consideration, 231. 
 
 mortgage for, 231. 
 
 mortgage may be taken for absolute sum, 232. 
 
 judgment for, 232. 
 GIFT. See Voluntary Conveyance. 
 GRANTEE, when protected, 195. 
 
 without consideration, 198. 
 
 antecedent debt, 198. 
 
 must act in good faith, 199. 
 
 affected by notice, 200. 
 
 knowledge of insolvency, 201. 
 
 knowledge of judgment, 201. 
 
 knowledge of attachment, 201. 
 
 must use ordinary diligence, 201. 
 
 notice before payment, 203. 
 
 need not have same motives' as debtor, 203. 
 
 co-operation, 204. 
 
680 INDEX. 
 
 GKANTEE— continued. 
 
 acts of agents, 205. 
 
 intent to defeat execution, 206. 
 
 adequacy of consideration, 208. 
 
 use of debtor, 209. 
 
 resulting trust, 211. 
 
 reservation of benefit, 213. 
 
 secret trust, 214. 
 
 collusion, 217. 
 
 may give to debtor, 217. 
 
 when held as trustee, 240. 
 
 how far title is valid, 443. 
 
 not bound by executory contract, 447. 
 
 may sell to creditor, 499. 
 
 not in pari delicto, 448. 
 
 rights when there are several, 453. 
 
 need not pay notes, 454. 
 
 no defence against bona fide holder, 455. 
 
 remedy at law, 456. 
 
 no remedy in equity, 456. 
 
 can not enforce executory contracts, 457. 
 
 good title against third parties, 458. 
 
 good title against creditors at large, 460. 
 
 good title against void process, 462. 
 
 good title against deed by debtor, 464. 
 
 rights of creditors, 475. 
 
 right to profits, 478. 
 
 right to proceeds, 478. 
 
 partition by, 480. 
 
 redemption of property, 480. 
 
 dissolution of attachment, 480. 
 
 purchase under execution, 480. 
 
 right to surplus, 480. 
 
 rescission, 482. 
 
 debt not extinguished, 485. 
 
 void in part void in toto, 486. 
 
 when one is innocent, 488. 
 
 recovery, 489. 
 
 title merely voidable, 490. 
 
 sale to lona fide purchaser, 491. 
 
INDEX. 681 
 
 GRANTEE— continued. 
 
 necessary party, 549. 
 
 answer evidence for, 558. 
 
 evidence of debt only prima facie against, 574. 
 
 may impeach judgment, 576. 
 
 grantor's declarations evidence against, 580, 582, 584. 
 
 may testify to his intention, 593. 
 
 evidence of character of, 592. 
 
 evidence in favor of, 592. 
 
 decree against grantee, 607. 
 
 not liable after surrender, 607. 
 
 liable for proceeds, 608. 
 
 liable for loss, 609. 
 
 may retain insurance, 610. 
 
 must account for rents and profits, 610. 
 
 computation of profits, 612. 
 
 charged with interest, 613. 
 
 no right to indemnity, 613. 
 
 can not retain moneys paid, 614. 
 
 can not set off his debt, 614. 
 
 can not use fraudulent judgment, 616. 
 
 indemnity in case of constructive fraud, 616. 
 
 when transfer is suspicious, 617. 
 
 lien as partner, 618. 
 
 feme covert, 618. 
 
 allowance for improvements, 618. 
 
 expenditures offset to profits, 619. 
 
 apportionment, 619. 
 
 retain exempt property, 620. 
 HEIE, bound by conveyance, 444. 
 
 fraudulent alienation of assets, 505. 
 
 under fraudulent deed take as heir, 526. 
 
 when executor de son tort, 526. 
 
 not necessary party, 549. 
 HEEIOTS, transfer to defeat, 502. 
 HOMESTEAD, colorable transfer of, 246. 
 
 converting assets into, 245. 
 
 after transfer, 482. 
 
 grantee may retain, 620. 
 
682 INDEX. 
 
 HUSBAND AND WIFE, claim for deceit in marriage, 229. 
 
 earnings, 232, 252. 
 
 renunciation of future earnings, 252. 
 
 possession of wife is possession of husband, 147. 
 
 possession of property of wife conveyed before marriage, 147. 
 
 possession by wife after separation, 147. 
 
 business in wife's name, 249. 
 
 may employ husband, 250. 
 
 employment must not be colorable, 250. 
 
 ante-nuptial settlement, 296. 
 
 wife must participate in fraud, 296. 
 
 how far marriage is valuable, 301. 
 
 transfer in pursuance of ante-nuptial agreement, 302. 
 
 parol ante-nuptial agreement, 303. 
 
 payment of portion, 304. 
 
 deed of separation, 305. 
 
 contract between, 306. 
 
 wife's choses in action, 307. 
 
 wife's right to settlement, 308. 
 
 separate estate, 309. 
 
 release of dower, 310. 
 
 giving property to husband without contract, 311. 
 
 increase under settlement, 312. 
 
 rectification of defective settlement, 312. 
 
 purchases by feme covert, 313. 
 
 dower not extinguished, 481. 
 
 dower after mortgage, 481. 
 
 no dower in case of purchase in name of another, 481. 
 
 property held as security for dower, 618. 
 
 may recover her own estate, 449. 
 ILLEGAL CONSIDERATION, no consideration, 222. 
 
 illicit intercourse, 229. 
 
 claim founded on, does not constitute creditor, 502. 
 IMPROVEMENTS, no allowance for, 618. 
 
 set-off against rents and profits, 619. 
 
 donee entitled to, 619. 
 
 assignee's expenses, 619. 
 
 on land of another may be reached, 242. 
 INADEQUACY, badge of fraud, 44. 
 
 not fixed by rule of law, 44. 
 
INDEX. 683 
 
 INADEQUACY— continued. 
 
 when must be gross, 45. 
 
 causes scrutiny, 45. 
 
 price must be reasonable, 208. 
 
 when partially voluntary, 294. 
 
 when suspicious, 606. 
 INDEBTEDNESS, badge of fraud, 36. 
 
 does not take away debtor's dominion, 36. 
 
 affects voluntary conveyances, 274. 
 
 of itself does not render transfer void, 278. 
 
 only one circumstance, 275. 
 
 must be compared with means, 275. 
 
 debtor need not be insolvent, 282. 
 
 wife's notice of, 299. 
 
 grantee's notice of, 201. 
 
 proof of, 574. 
 INDEMNITY, none in case of actual fraud, 613. 
 
 none for money paid to debtor, 614. 
 
 none for money paid to' creditors, 614. 
 
 in case of constructive fraud, 616. 
 INFANT, note of, good consideration, 227. 
 
 partner can make assignment, 352. 
 INJUNCTION, sale can not be enjoined, 527. 
 
 none of creditor's suit, 530. 
 INSOLVENCY, does not defeat debtor's dominion, 13, 195. 
 
 does not take away right to prefer, 184. 
 
 defeats voluntary conveyances, 280. 
 
 does not defeat assignments, 369. 
 INTENT, FEAUDULENT, what is within the statute, 17. 
 
 to defraud the public, 18. 
 
 to defeat prior deeds, 18. 
 
 to defraud debtor, 18. 
 
 definition of, 19. 
 
 delay, 19. 
 
 definition of hindrance and delay, 20. 
 
 when inference of, a question of fact, 22. 
 fraud in law, 22. 
 
 what is constructive fraud, 24. 
 
 no difference between fraud in fact and fraud in law, 24. 
 
 legal not moral intent, 25. 
 
684 INDEX. 
 
 INTENT, FRAUDULENT— continued. 
 
 question of law, 26. 
 
 what intent sufficient, 27. 
 
 prevention of sacrifice, 27, 359. 
 
 must be in the beginning, 28, 359. 
 
 not accident or mistake, 28. 
 
 by corporation, 29. 
 
 not merely to defeat execution, 21, 187, 355. 
 
 differs from intent to prefer, 187. 
 
 of donor alone, 268. 
 
 in voluntary conveyances, 268. 
 
 establishment of, in voluntary conveyances, 270. 
 
 when a conclusion of law, 270. 
 
 no inquiry into secret motives, 271. 
 
 against subsequent creditors, 315. 
 
 incidental delay in assignments, 352. 
 
 under assignments, 353. 
 
 secret motives, 357. 
 
 what is, in assignments, 358. 
 
 proof of, 579. 
 
 burden of proof, 600. 
 
 may be presumed, 601. 
 
 amount of proof, 603. 
 
 proof must be clear, 604. 
 
 same at law as in equity, 605. 
 INTERNATIONAL LAW, construction by lex loci, 511. 
 
 evidence by lex fori, 511. 
 
 transfer of land by lex loci, 511. 
 
 personal property by place where made, 512. 
 
 statutes may regulate transfers, 513. 
 
 binding on citizens of other States, 514. 
 
 valid where made and property located, 514. 
 
 notice to debtor, 514. 
 
 where no evidence of foreign law, 515. 
 
 law of State where made governs assignments, 368. 
 ISSUE, to try fraud in judgment, 521. 
 
 to try fraud in execution, 522. 
 JUDGMENT, lien on property transferred, 474. 
 
 against grantee no lien, 475. 
 
 creditor must prove, 463. 
 
INDEX. 685 
 
 JUDGMENT— continued. 
 
 purchaser must prove, 477. 
 
 subsequent, will not affect lona fide purchaser, 496. 
 
 proof of, against grantee, 574. 
 
 against administrator, 575. 
 
 by confession, 575. 
 
 only prima facie against grantee, 576. 
 
 grantee may impeach, 576. 
 
 when fraudulent is void, 521. 
 
 impeach collaterally, 521. 
 
 may be set aside, 521. 
 
 issue to try fraud in, 521. 
 
 not vacated on record, 522. 
 
 when will support bill in equity, 533. 
 
 kind of judgment to support bill, 539. 
 
 priority over, equitable lien, 571. 
 
 after filing bill, is lien, 570. 
 
 no lien after title is divested, 571. 
 
 void in part is void in whole, 486. 
 
 lona fide purchaser under fraudulent, has good title, 498. 
 
 fraudulent, void, 259. 
 
 when conclusive, 568. 
 JURY, when fraud a question for, 22. 
 
 explanation of possession, 104. 
 
 points for, in case of possession, 119. 
 
 province of, in case of possession, 119. 
 
 issue for, under judgment, 521. 
 
 issue for, under execution, 522. 
 LACHES, creditor bound by, 466. 
 
 ground for refusal of relief in equity, 564. 
 LAND, acts of ownership badge of fraud, 49. 
 
 renting, 49. 
 
 selling, 49. 
 
 improving, 50. 
 
 possession alone not a badge of fraud, 121, 178. 
 
 expenditures on, may be reached, 242. 
 LIENS, after transfer, 474. 
 
 before transfer not affected, 485. 
 
 subsequent, not notice to purchaser, 496. 
 
 under execution, 497. 
 
686 INDEX. 
 
 LIENS — continued. 
 
 necessary to sustain bill, 533. 
 
 what sufficient to sustain bill, 535. 
 
 not necessary to reach choses in action, 537. 
 
 not necessary on equitable claims, 540. 
 
 not necessary after death of debtor, 540. 
 
 equitable, by filing bill, 570. 
 
 service of process necessary to, 570. 
 
 equitable, subject to others, 571. 
 
 judgment after filing bill, 571. 
 LIMITATIONS, STATUTE OF, must be pleaded, 560. 
 
 to demand or title, 560. 
 
 no plea after defence, 561. 
 
 one creditor may plead to others, 561. 
 
 objection to subsequent claims, 561. 
 
 runs till filing of claims, 561. 
 
 judgment before, bar of, 561. 
 
 judgment after, bar of, 561. 
 
 as to claim to title, 562. 
 
 property not liable to execution, 563. 
 
 administrator, 563. 
 
 only from discovery, 564. 
 
 suspicion not discovery, 564. 
 
 information to put on inquiry, 565. 
 
 averment in bill to avoid, 554. 
 M AREIAGE, a valuable consideration, 296. 
 
 must be specific marriage, 297. 
 
 contemporaneous gift, 297. 
 
 extends to children, 298. 
 
 does not extend to collaterals, 299. 
 
 runs through the whole settlement, 299. 
 
 how far valuable, 301. 
 
 is emancipation, 253. 
 
 makes bona fide purchaser,' 498. 
 MARRIAGE SETTLEMENTS, founded on valuable consideration, 
 296. 
 
 both parties must have notice of fraud, 296. 
 
 must relate to specific marriage, 297. 
 
 contemporaneous gift, 297. 
 
 statement in articles, 298. 
 
INDEX. 687 
 
 MARRIAGE SETTLEMENTS —continued. 
 
 extends to children, 298. 
 
 collaterals, 299. 
 
 mere knowledge of indebtedness, 299. 
 
 inference of notice from facts, 300. 
 
 extravagant, 300. 
 
 how far valuable, 301. 
 
 in pursuance of ante-nuptial agreement, 302. 
 
 must conform to articles, 302. 
 
 proof of articles, 303. 
 
 parole void, 224, 303. 
 
 marriage not part performance, 303. 
 
 misrepresentation, 304. 
 
 written acknowledgment, 304. 
 
 in consideration of previous marriage, 304. 
 
 for portion, 304. 
 
 deed of separation, 305. 
 
 covenant of indemnity, 305. 
 
 contract between husband and wife, 306. 
 
 personal property, 306. 
 
 choses in action reduced, 307. 
 
 choses in action, 307. 
 
 of property where right of settlement, 308. 
 
 of property where right of settlement, must be reasonable, 309. 
 
 for separate estate, 309. 
 
 for right of dower, 310. 
 
 when no contract, 311. 
 
 covers increase, 312. 
 
 defective, may be rectified, 312. 
 
 purchase by wife, 313. 
 MESNE PROFITS. See Account, Pkofits. 
 MISTAKE, not fraud, 28. 
 
 no proof that fraudulent deed was made by, 28, 364. 
 
 correction of, 452. 
 MORTGAGES, absolute deed for, 41. 
 
 absolute deed with secret trust, 42, 
 
 to cover property, 46. 
 
 excess of property, 46. 
 
 length of duration, 46. 
 
 retention of note, 51, 
 44 
 
688 INDEX. 
 
 MOETGAGES— continued. 
 
 delay in enforcing, 59. 
 
 possession under, badge of fraud, 120. 
 
 selling for debtor's benefit, 123. 
 
 parol power to sell, 126. 
 
 sale contrary to purpose of, 127. 
 
 power to sell as agent, 128. 
 
 of perishable articles, 12i9. 
 
 for sustenance of mortgage property, 129. 
 
 delivery before execution, 130. 
 
 possession under, 155. 
 
 stipulation for possession, 157. 
 
 after condition' broken, 158. 
 
 possession after purchase of right of redemption, 159. 
 
 assignment of, for money paid by debtor, 257. 
 
 restored when transfer of equity of redemption void, 146, 
 485. 
 
 fraudulent, does not extinguish debt, 485. 
 
 no priority of mortgage notes, 500. 
 
 fraudulent sale under, 260. 
 
 to secure debt of another not voluntary, 226. 
 
 fraudulent, may be enforced at law, 456. 
 
 fraudulent, not enforced in equity, 456. 
 
 fraudulent, debtor may redeem from, 453. 
 
 fraudulent, notes not enforcible, 454. 
 
 when purchaser may contest, 477. 
 
 assignee may sell subject to, 478. 
 
 grantee can not claim money paid for, 614. 
 MOTIVES, legal not moral intent, 25. 
 
 fraud does not imply corrupt, 25. 
 
 secret, in preference immaterial, 189, 397. 
 
 result in proper action not bad, 189. 
 
 inducement to assignment, 357. 
 
 threats in preferences, 397. 
 
 caprice, 398. 
 NOTICE, makes sale void, 200. 
 
 of insolvency, 201. 
 
 of judgment, 201. 
 
 of threatened attachment, 201. 
 
 knowledge not necessary, 201. 
 
INDEX. 689 
 
 NOTICE— continued, 
 
 to put on inquiry, 202. 
 
 inferred from relationship, 203. 
 
 before payment, 203. 
 
 not of full extent of fraud, 203. 
 
 none necessary to donee, 198, 268. 
 
 of intent to defeat execution, 206. 
 
 to wife in nuptial settlements, 300. 
 
 to assignee, 360. 
 
 to creditor no estoppel, 466. 
 
 conduct of creditor after notice, 466. 
 
 to purchaser makes deed void, 493. 
 
 before payment by purchaser, 493. 
 
 to put purchaser on inquiry, 494. 
 
 apparent on face of papers, 495. 
 
 to agent is to principal, 205, 495. 
 
 of subsequent judgment, 496. 
 
 pendente lite, 497. 
 
 in case of possession, 495. 
 NOTORIETY, of change of possession, 161. 
 
 seizure not, 161. 
 
 sale at public auction, 161. 
 
 sale under execution, 161. 
 
 who may purchase at auction, 162. 
 
 possession after sale at auction, 163. 
 
 public sale by private agreement, 163. 
 NUPTIAL SETTLEMENT. See Marriage Settlement. 
 ONUS PROBAND! in case of possession, 115. 
 
 on donee, 276. 
 
 proof by donee must be clear, 285. 
 
 on creditor who assails assignment, 365. 
 
 of solvency of assignor, 372. 
 
 of fraud, 600. 
 PARENT, entitled to child's earnings, 232, 252. 
 
 contract for emancipation, 233. 
 
 duty to support child, 252. 
 may emancipate child, 253. 
 marriage is emancipation, 253. 
 PAROL AGREEMENTS, for marriage void, 224, 303. 
 
 effect of marriage, 303. 
 
690 INDEX. 
 
 PAROL AGREEMENTS — continued. 
 
 representation, 304. 
 
 written acknowledgment, 303. 
 PARTIES, who may sue, 533. 
 
 assignee in bankruptcy, 544. 
 
 creditors after bankruptcy, 545. 
 
 creditors may make assignee defendant, 545. 
 
 receiver, 545. 
 
 sheriff, 545. 
 
 purchaser, 546. 
 
 joinder of creditors, 546. 
 
 joinder of sheriff and creditor, 547. 
 
 joinder of creditor and administrator, 547. 
 
 joinder of assignor and assignee of judgment, 547. 
 
 joinder of several grantees, 549. 
 
 joinder of grantees claiming different portions, 551. 
 
 when one creditor entitled to further relief, 547. 
 
 on behalf of all who come in, 547. 
 
 receiver as party defendant, 548. 
 
 debtor, 548. 
 
 debtor's administrator, 548. 
 
 debtor's heirs, 549. 
 
 grantee, 549. 
 
 person through whom title has passed, 550. 
 
 having prior interests, 550. 
 
 grantor of purchase in the name of another, 550. 
 
 purchaser pendente lite, 550. 
 
 indorser, 554. 
 
 joint debtors, 548. 
 PARTNERS, vendor may be member of firm, 142. 
 
 possession of partnership property, 146. 
 
 transfer to pay separate debt, 229. 
 
 division without transfer, 230. 
 
 firm debt contracted in name of partner, 230, 390. 
 
 transfer of firm property to one partner, 230. 
 
 transfer of separate property to pay firm debts, 230. 
 
 dissolution of partnership, 257. 
 
 assignment of firm property to pay separate debts, 389. 
 
 assignment to pay debt of firm of which assignor is partner, 
 390. 
 
INDEX. 691 
 
 PARTNERS— continued. 
 
 assignment to pay separate debts when separate property 
 assigned, 389. 
 
 assignment after dissolution, 390. 
 
 assignment of separate property to pay firm debts, 390. 
 
 distribution of surplus among separate creditors, 391. 
 
 reservation of surplus in firm assignment, 406. 
 
 partner remitted to his lien, 618. 
 PLEA for want of lien, 543. 
 
 for want of proper parties, 555. 
 
 in bar of discovery, 555. 
 
 to protect from criminal prosecution, 556. 
 
 of limitations, 560. 
 
 none after defense, 561. 
 
 to validity of other claims, 561. 
 
 title to property, 562. 
 PORTION, good consideration for settlement, 304. 
 
 paid after settlement, 304. 
 
 security of sufficient, 305. 
 POSSESSION of land with acts of ownership, 49. 
 
 a badge of fraud, 61. 
 
 depends on intent, 63. 
 
 right to leave with vendee, 63. 
 
 tends to deceive, 64. 
 
 not conclusive, 65. 
 
 caveat creditor, 66. 
 
 rule of evidence, 67. 
 
 public policy, 72. 
 
 rights of others, 74. 
 
 explanation for jury, 75. 
 
 court not to determine sufficiency of explanation, 76. 
 
 review of authorities, 78. 
 
 citation of authorities, 111. 
 
 what requisite, 112. 
 
 burden of proof, 115. 
 
 point of inquiry, 115. 
 
 evidence to explain, 116. 
 
 consideration, 117. 
 
 province of jury, 119. 
 
 to what transactions applies, 120. 
 
692 INDEX. 
 
 POSSESSION— continued. 
 of land, 121. 
 with jus disponendi, 122. 
 mortgage with power to sell, 123. 
 mortgage with parol power to sell, 126. 
 mortgage with power to sell as agent, 128. 
 mortgage of perishable articles, 129. 
 when perishable articles consumed for benefit of property, 
 
 129. 
 when transfer valid, 130. 
 fraud per se, rule of policy, 132. 
 excludes all evidence, 132. 
 no privity of vendee, 133. 
 what change necessary, 133. 
 symbolical delivery not sufficient, 133. 
 change must be continuous, 134. 
 must follow transfer, 134. 
 a question of law, 136. 
 when submitted to jury, 136. 
 jury to decide conflict of testimony, 137. 
 evidence of transfer not excluded, 137. 
 concurrent possession, 137. 
 must be observable, 139. 
 employment of vendor as agent, 140. 
 change of sign, 141. 
 when joint, collusive, L42. 
 when accompanied by transfer of land, 143. 
 surrender of lease, 143. 
 taking a lease, 144. 
 property on farm, 1 44. 
 steam engine, 145. 
 exempt property, 146. 
 equity of redemption, 146. 
 after sale by vendee, 146. 
 by feme covert, 147. 
 
 of property conveyed before marriage, 147. 
 of property after separation, 147. 
 sufficiency of, varies with each case, 148. 
 of property in possession of vendee, 148. 
 removal of owner, 148. 
 
INDEX. 693 
 
 POSSESSION— continued. 
 
 when vendor accompanies goods, 149. 
 
 previous ownership, 149. 
 
 effect of consent, 149. 
 
 effect of notice, 149. 
 
 effect of knowledge, 150. 
 
 nominal party, 150. 
 
 transfer to debtor, 150. 
 
 conditional sale to debtor, 151. 
 
 special exceptions, 152. 
 
 when parties reside together, 153. 
 
 mere convenience not sufficient, 154. 
 
 agreement to pay for use, 155. 
 
 must be consistent with title, 155. 
 
 under a mortgage, 157. 
 
 under deeds of trust, 158. 
 
 after condition broken, 158. 
 
 after purchase of equity of redemption, 159. 
 
 under marriage settlements, 159. 
 
 purchases with settled funds, 160. 
 
 purchases with settled funds of husband's goods, 160. 
 
 purchasers with, under execution, 161. 
 
 public sales, 161. 
 
 mere seizure, 161. 
 
 sale under deed of trust, 161. 
 
 sale under warrant of distress, 161. 
 
 sale under mortgage, 161. 
 
 sale under execution, 161. 
 
 stranger may purchase, 162. 
 
 public sale by private agreement, 163. 
 
 when change impossible, 164. 
 
 ponderous articles, 165. 
 
 what change of ponderous articles necessary, 166. 
 
 delivery of brick, 166, 
 
 delivery of rafts, 167. 
 
 delivery of timber, 167. 
 
 delivery of key, 167. 
 
 delivery of growing crops, 167. 
 
 when goods are remote, 167. 
 
 ship at sea, 168. 
 
694 INDEX. 
 
 POSSESSION— continued. 
 
 goods at sea, 168. 
 
 vendee not bound to follow vessel, 168. 
 
 delay to take vessel, 169. 
 
 when vendor only has constructive possession, 169. 
 
 goods in a warehouse, 170. 
 
 goods in hands of bailee, 170. 
 
 goods in hands of servants, 171. 
 
 of property subject to rights of third parties, 172. 
 
 of goods upon the land of another, 172. 
 
 change prior to execution, 1 73. 
 
 delay in change of, a badge of fraud, 174. 
 
 change after death of vendor, 174. 
 
 change as to part, 174. 
 
 use of part is a badge of fraud, 174. 
 
 must be continued, 174. 
 
 temporary acts of ownership, 175. 
 
 neglect of agent, 175. 
 
 return by bailee, 175. 
 
 subsequent return, 175. 
 
 what possession requisite before return, 176. 
 
 chases in action, 177. 
 
 stocks, 177. 
 
 prior and subsequent creditors, 177. 
 
 land, 178. 
 POST-NUPTIAL SETTLEMENT, in pursuance of articles, 302. 
 
 must conform to articles, 302. 
 
 recital of articles no evidence, 303. 
 
 parol agreement void, 303. 
 
 effect of marriage, 303. 
 
 effect of representation, 304. 
 
 effect of written acknowledgment, 303. 
 
 for portion, 304. 
 
 deed of separation, 305. 
 
 for wife's property, 306. 
 
 choses in action, 307. 
 
 where wife has right of settlement, 308. 
 
 wife's separate estate, 309. 
 
 release of dower, 310. 
 
 agreement necessary, 311. 
 
INDEX. 695 
 
 POWER OP APPOINTMENT, creditors may reach property 
 voluntarily appointed, 244. 
 
 when general, 344. 
 
 when not general, 244. 
 
 charge on land, 244. 
 
 makes donee owner, 244. 
 
 to take effect after donor's death, 244. 
 POWER OP REVOCATION renders assignment void, 380. 
 
 renders transfer void, 218. 
 
 not make void as to subsequent creditors, 325. 
 
 power to make loans equivalent to, 380. 
 
 power to sell equivalent to, 122. 
 
 to declare uses subsequently, 381. 
 
 to affix schedules subsequently, 382. 
 
 to another, 383. 
 PREFERENCES, reasons for validity of, 179. 
 
 consequence of ownership, 179. 
 
 not favorable to commerce, 182. 
 
 not fraudulent, 183. 
 
 when others lose their debts, 185. 
 
 mode of, 186. 
 
 to defeat an execution, 187, 396. 
 
 secret motives immaterial, 189, 397. 
 
 must be bona fide, 190. 
 
 tainted by secret trust, 191. 
 
 gift by creditor, 193. 
 
 when creditor may purchase, 194. 
 
 in assignments, 393. 
 PROCESS, creditor must have, 460. 
 
 warrant of distress, 462. 
 
 attachment, 462. 
 
 must be valid, 462. 
 
 void renders creditor trespasser, 462. 
 
 proof of, 463. 
 PROFITS, debtor can not accumulate, 248. 
 
 business in wife's name, 249. ' 
 
 not liable to levy, 478. 
 
 grantee must account, 610, 618. 
 
 computed from transfer, 612. 
 
 from improvements, 612. 
 
696 INDEX. 
 
 PEOFITS— continued. 
 
 amount of, 612. 
 
 set-off against improvements, 618. 
 PEOPBETY, what within the statute, 234, 238. 
 
 choses in action, 239. 
 
 purchase in the name of another, 240. 
 
 expenditures upon another's land, 242. 
 
 exempt, 245. 
 
 privileges, 247. 
 
 debtor's labor, 247. 
 
 accumulation of earnings, 248. 
 
 business in wife's name, 249. 
 
 wife's earnings, 252. 
 
 child's earnings, 252. 
 
 emancipation of child, 253. 
 PUECHASE, in name of another, within the statute, 240. 
 
 grantee is trustee for creditors, 241. 
 
 may be reached in equity, 241, 532. 
 
 may be reached at law, 241. 
 
 creditor must have judgment, 533. 
 
 under execution, 260. 
 PUECHASEE BONA FIDE. See Bona Eide Purchases. 
 PUECHASEE UNDEE EXECUTION has the rights of creditor, 
 506. 
 
 obtains good title, 476. 
 
 inadequacy, 476. 
 
 proof of title, 477. , 
 
 subject to liens, 477. ! 
 
 of equity of redemption when mortgage is fraudulent, 477. 
 
 defects in title not good against, 477. 
 
 may file bill in equity, 546. 
 
 against grantee, gets good title, 475. 
 
 dates from sale, 496. 
 
 postponed to unrecorded deed, 497. 
 
 good against subsequent purchaser, 497. 
 
 unrecorded deed, 497. 
 RATIFICATION by creditor, 464. 
 
 party to deed, 465. 
 
 notice, 465. 
 
 acquiescence, 466. 
 
INDEX. 697 
 
 RATIFICATION— continued. 
 
 knowledge requisite, 466. 
 
 effect of negligence, 466. 
 
 expressed contract, 467. 
 
 receiving dividend, 468. 
 
 assignees receiving money, 469. 
 
 advice, 465. 
 
 receiving note, 468. 
 
 subsequent indebtedness, 471. 
 
 estoppel, 469. 
 
 provision in assignment, 469. 
 
 attachment, 470. 
 
 receiving money under execution, 470. 
 
 policy of insurance, 470. 
 
 sale renders null, 470. 
 
 return of property, 472. 
 
 estoppel extends to privies, 465. 
 RECITALS OF CONSIDERATION presumptive, 594. 
 
 weak evidence, 594. 
 
 when proof of consideration material, 595. 
 
 additional consideration, 596. 
 
 consideration from other parties, 597. 
 
 can not be varied, 598. 
 
 in marriage settlement, 303. 
 RECITALS, FALSE, a badge of fraud, 40. 
 
 absolute deed for mortgage, 41. 
 
 right to repurchase, 42. 
 
 false statement of consideration, 42. 
 RECONVEYANCE good against creditors of grantee, 224. 
 
 by parties, 482. 
 
 by administrator, 484. 
 
 grantee not liable after, 607. 
 RECORD. See Registbation-. 
 RECOVERY binds those in remainder, 488. 
 REGISTRATION, omission of, 39. 
 
 does not render a fraudulent deed valid, 131. 
 
 subsequent judgments, 496. 
 
 omission by purchaser, 497. 
 
 purchase in the name of another, 497. 
 
698 INDEX. 
 
 REIMBURSEMENT none of consideration, 613. 
 
 money paid to debtor, 614. 
 
 money paid to creditors, 614. 
 
 money paid to extinguish mortgage, 614. 
 
 in case of constructive fraud, 616. 
 
 expenditures, 618. 
 
 improvements by donee, 619. 
 RELATION not a badge of fraud, 56. 
 
 suspicious, 56. 
 
 what raises suspicion, 56. 
 RELEASE, debt discharged by, not good consideration, 224. 
 
 assignments exacting, void, 428. 
 
 form of, 441. 
 
 partner may execute, 441. 
 
 when creditors not bound by, 441. 
 REMEDIES against fraudulent judgment, 521. 
 
 against fraudulent execution, 522. 
 
 against fraudulent attachment, 523. 
 
 against fraudulent executor de son tort, 524. 
 
 issue to try, 521, 522. 
 
 no injunction to prevent sale, 527. 
 
 assumpsit, 527. 
 
 action on the case, 527. 
 
 change of, 529. 
 
 action at law, 529. 
 
 issue in action at law, 530. 
 
 bill in equity, 530. 
 
 when no remedy at law, 531. 
 
 purchases in name of another, 240, 532. 
 
 choses in action, 532. 
 
 when creditor must have lien, 533. 
 
 what lien sufficient, 535. 
 
 return of execution, 537. 
 
 second execution, 538. 
 
 kind of judgments, 539. 
 
 equitable demand, 540. 
 
 after death of debtor, 540. 
 
 in equity against executors de son tort, 541. 
 
 non-residents, 542. 
 
 when no relief at law, 543. 
 
INDEX. 699 
 
 EEMEDIES— continued. 
 
 after bankruptcy, 544. 
 
 by receivers, 545. 
 
 by assignee, 546. 
 
 by purchaser, 546. 
 
 creditor must have legal process, 460. 
 
 warrant of distress, 462. 
 
 attachment, 462. 
 
 void process, 462. 
 RENT, collecting, a badge of fraud, 49. 
 
 paying, a badge of fraud, 50. 
 
 nominal, a badge of fraud, 50. 
 
 remission of, 256. 
 RESERVATION". See Benefit. 
 REVOCATION". See Power of Revocation-. 
 SALE of uncollectable demands, 420. 
 
 equity may direct, 567. 
 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, 41 5. 
 
 at auction, 415. 
 
 completing manufactures, 416. 
 
 in ordinary course of business, 415. 
 
 on credit, 416. 
 SCHEDULES need not be annexed to assignment, 343. 
 
 need not give details, 344. 
 
 need not estimate value, 344. 
 
 need not name creditors, 344. 
 
 need not mention amount due, 345. 
 
 creditors may place their amounts on, 345. 
 
 omission of, a badge of fraud, 346. 
 SCHEDULES IN ASSIGNMENT, form of, 342. 
 
 certainty in description, 343. 
 
 made essential by reference, 343. 
 
 of debts, 344. 
 
 description of debts, 345. 
 
700 INDEX. 
 
 SCHEDULES IN ASSIGNMENT— continued. 
 
 subsequent annexation, 345. 
 
 subsequent, giving preferences, 382. 
 SECEECY a badge of fraud, 38. 
 
 not conclusive, 39. 
 
 concealment of purchase, 39. 
 
 concealment of deed, 39. 
 
 omission to record deed, 39. 
 
 agreement to conceal, 40. 
 SEOEET TEUST, origin of, 9. 
 
 a badge of fraud, 40. 
 
 false recitals, 40. 
 
 absolute deed as mortgage, 41. 
 
 right to repurchase, 42. 
 
 false consideration, 42. 
 
 vitiates preference, 191. 
 
 consideration for preference, 192. 
 
 vitiates transfer, 214. 
 
 fictitious consideration, 217. 
 SEPARATION, good consideration, 305. 
 
 form of contract, 305. 
 
 covenant of indemnity, 305. 
 
 omission of covenant, 305. 
 
 omission of trustee to execute, 305. 
 SEQUESTRATION, transfer to defeat, fraudulent, 505. 
 SETTLEMENT. See Marriage Settlement; Voluntary Con- 
 veyances. 
 SHERIFF, within the statute, 506. 
 
 may file bill, 545. 
 
 may unite with creditor, 547. 
 
 must be impartial, 522. 
 
 notice to deputy, 523. 
 
 may allow debtor to use property, 519. 
 SHIP, sale of, at sea, 168. 
 
 vendee need not follow, 168. 
 
 vendee must use reasonable diligence, 169. 
 
 no agent at home port, 169. 
 
 seizure on process, 169. 
 
 notice to captain, 169. 
 STOCK, change of possession, 177. 
 
 transfer within the statute, 239. 
 
INDEX. 701 
 
 SUBSEQUENT CEEDITORS, rights at common law, 314. 
 
 within the statute, 315. 
 
 intent requisite, 315. 
 
 burden of proof, 315. 
 
 badges of fraud, 316. 
 
 not mere indebtedness alone, 317. 
 
 actual intent, 316. 
 
 recording deed, 316. 
 
 when voluntary deed valid, 319. 
 
 may impeach voluntary conveyance, 321. 
 
 when donor is insolvent, 322. 
 
 continuous indebtedness, 322. 
 
 proof of prior debts, 324. 
 
 remedies, 324. 
 
 participation by, 324. 
 
 property conveyed to use of debtor, 325. 
 
 power of disposition, 325. 
 
 power of revocation, 325. 
 
 discretion of trustee, 326. 
 
 colorable transfers, 326. 
 
 transfer for valuable consideration, 327. 
 
 change of possession, 328. 
 
 representations, 328. 
 
 who are, 507. 
 SUPPORT, when fraudulent, 218. 
 
 when full consideration paid, 219. 
 
 employment of grantor, 219. 
 
 by solvent debtor, 220. 
 SURETY, within the statute, 503. 
 
 has rights of creditor, 508. 
 
 right referred to date of obligation, 507. 
 
 provision for in assignment, 386. 
 
 contingent liability, 386. 
 SURPLUS belongs to grantee, 480, 621. 
 
 disposition of, in assignment, 404. 
 
 disposition of, in assignment when fraudulent, 405. 
 disposition of, in assignment by partners, 406. 
 disposition of, in assignment after payment of all, 407. 
 disposition of, in assignment exacting releases, 437. 
 TAXES, reimbursement for, 619. 
 
702 INDEX. 
 
 TENANT, bound by landlord's transfer, 458. 
 
 can not dispute grantee's title, 459. 
 
 remission of rent to, 256. 
 
 forfeiture by, 255. 
 TEANSFBR, how far void, good between parties, 443. 
 
 grantor, 444. 
 
 heirs, 444. 
 
 executors, 445. 
 
 administrators, 445. 
 
 agent, 445. 
 
 parties claiming under debtor, 445. 
 
 rights of debtor under executory contract, 447. 
 
 equity will not enforce an agreement, 447. 
 
 trust in fraudulent deed, 448. 
 
 when parties not in pari delicto, 448. 
 
 feme covert, 449. 
 
 unfounded claim, 452. 
 
 correction of mistake, 452. 
 
 redemption of fraudulent mortgage, 453. 
 
 rights of grantees inter se, 453. 
 
 no action at law on note, 454. 
 
 bona fide holder of note, 455. 
 
 actions at law by grantee, 456. 
 
 grantee has no remedy in equity, 456. 
 
 after reconveyance, 457. 
 
 grantee can not enforce agreement, 457. 
 
 valid against third parties, 458. 
 
 debtor's tenant, 458. 
 
 prior mortgage, 458. 
 
 grantee's tenant, 459. 
 
 bailee, 459. 
 
 purchasers from grantee, 459. 
 
 stockholders, 459. 
 
 chose in action, 459. 
 
 creditor must have process, 460. 
 
 warrant of distress, 462. 
 
 attachment, 462. 
 
 void process, 462. 
 
 deed from debtor, 464. 
 
 ratification, 464. 
 
INDEX. 703 
 
 TRANSFER— continued. 
 
 estoppel, 465. 
 
 return of benefit, 472. 
 
 lien of judgment, 474. 
 
 creditors of grantee, 475. 
 
 purchaser under execution, 476. 
 
 prior liens, 477. 
 
 equity of redemption, 477. 
 
 sale subject to transfer, 477. 
 
 sale by assignee, 478. 
 
 no levy on profits, 478. 
 
 partition by grantee, 480. 
 
 defeasible estate rendered absolute, 480. 
 
 redemption by grantee, 480. 
 
 dissolution of attachment, 480. 
 
 purchase under execution by grantee, 480. 
 
 dower, 481. 
 
 exemption, 482. 
 
 rescission, 482. 
 
 rescission by administrator, 484. 
 
 voluntary assignee, 484. 
 
 mortgage debt, 485. 
 
 fraudulent transfer of equity of redemption, 485. 
 
 void in toto, 486. 
 
 void as to part of property, 486. 
 
 fraudulent stipulation, 487. 
 
 when one grantee is innoeent, 488. 
 
 recovery, 488. 
 
 creation of an annuity, 489. 
 
 refusal to take title, 489. 
 
 note in name of another, 489. 
 TRANSFERS, WHAT WITHIN" THE STATUTE, every device, 
 234. 
 
 not transfer to debtor, 235. 
 
 not payment to debtor, 237. 
 
 only creditors of debtor, 237. 
 
 kind of property, 238. 
 
 choses in action, 239. 
 
 purchase in the name of another, 240. 
 
 expenditures upon the land of another, 242. 
 
 45 
 
704 INDEX. 
 
 TRANSFERS, "WHAT WITHIN THE STATUTE— continued. 
 
 power of appointment, 244. 
 
 exempt property, 245. 
 
 privileges, 247. 
 
 labor, 247. 
 
 business in wife's name, 249. 
 
 wife's earnings, 252. 
 
 child's earnings, 252. 
 
 emancipation of child, 252. 
 
 every form of conveyance, 254. 
 
 forfeiture of lease, 255. 
 
 outlawry, 255. 
 
 cancellation of indebtedness, 255. 
 
 remission of rent, 256. 
 
 contract relating to land, 256. 
 
 assignment of liens, 257. 
 
 dissolution of partnership, 257. 
 
 judgment, 259. 
 
 sale under execution, 260. 
 
 purchase under execution with debtor's money, 261. 
 
 fraudulent public sale, 263. 
 TRUST OE FOR GRANTOR, void, 309. 
 
 resulting, 211. 
 
 what benefits may be reserved, 213. 
 
 support of debtor, 218. 
 TRUST, SECRET. See Secret Trust. 
 TRUSTEE. See Assignee. 
 UNDUE INFLUENCE, ground for relief, 448. 
 USES. See Trusts. 
 
 VALIDITY. See Transfer, how far void. 
 VALUABLE CONSIDERATION. See Consideration. 
 VOLUNTARY CONVEYANCES, definition of, 267. 
 
 intent of donor alone, 268. 
 
 participation by acceptance, 268. 
 
 fraudulent intent necessary, 268. 
 
 proof of intent, 270. 
 
 when intent a conclusion of law, 270. 
 
 secret motives, 271. 
 
 mistake, 272. 
 
 indebtedness- a badge of fraud, 274. 
 
 presumptive evidence of frauck'274. 
 
INDEX. 705 
 
 VOLUNTARY CONVEYANCES— continued. 
 
 burden of proof on donee, 276. 
 
 person free from debt, 277. 
 
 by person in debt, 278. 
 
 mere indebtedness, 278. 
 
 comparative indebtedness, 275. 
 
 by insolvent, 280. 
 
 which leaves donor insolvent, 282. 
 
 insolvency not necessary, 282. 
 
 effect to defraud, 282. 
 
 solvency determined by event, 283. " 
 
 demands to be met, 283. 
 
 proof mast be clear, 285. 
 
 such as prudent man would make, 285. 
 
 ordinary course of events, 285. 
 
 nominal assets, 286. 
 
 hazards of business, 286. 
 
 property must be accessible, 287. 
 
 incumbered property, 288. 
 
 property where donor resides, 288. 
 
 different kinds of property, 289. 
 
 solvency determined by result, 290. 
 
 negligence pf creditors, 290. 
 
 accident, 290. 
 
 improvidence, 291. 
 
 no secret trust, 273. 
 
 valid when donor has ample means, 291. 
 
 partially voluntary, 294. 
 
 when valid against subsequent creditors, 31 9. 
 
 void against prior is void against subsequent, $21. 
 
 continuous indebtedness, 322. 
 
 when subsequent creditors may impeach, 324. 
 
 participation by subsequent creditors, 324. 
 WAGES, of child, 232, 252. 
 
 of wife, 232, 252. 
 
 of debtor, 247. 
 
 of child after emancipation, 253. 
 WIPE. See Husband and' Wife. 
 WITNESS may testify to his own intent, 593. 
 
 can not testify to intent of another, 593. 
 
 effect of omission to produce, 54.