(|nrn?ll fttaui Srlinnl fCibrary 
 
Cornell University Library 
 KF 1534.B94 1896 
 A treatise upon conveyances r^^^^^ 
 
 3 1924 019 309 644 
 
Cornell University 
 Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924019309644 
 
SATIERIEE, VEOMAH &TAYLOR. 
 
 9Ulr/7/ff 
 
 HUBBELL, TAYLOR, GOODWIN, NIXON <f HARGRAVE 
 3t EXCHANGE ST., 
 ROCHESTER, N, Y. 
 
A TREATISE 
 
 COMETANCES MADE BY DEBTORS TO 
 ■ DEFRAUD CREDITORS. 
 
 BY , kI I ' ■^ 
 
 ORLANDO F. BUMP. 
 
 REVISED AND ENLARGED 
 
 WITH REPBRENCBS TO AI,I, AMERICAN AND ENGI,ISH CASES 
 
 BY 
 
 JAMES McILVAINE GRAY, 
 
 FOURTH EDITION. 
 
 Washington, D. C. 
 W. H. LOWDEEMILK & CO., 
 
 Law PubIvIShers and Booxsei,i,ERS. 
 1896. 
 
Entered according to Act of Congress, in the year 1896, by 
 
 W. H. I/OWDERMILK & Co., 
 
 in the office of the Librarian of Congress, at Washington, U. C. 
 
 FROM THE PRESS OF SAPP BROS. 
 117 LIQHT ST., BALTIMORE. 
 
OCT 
 
 7 
 
 1937 
 
 PREFACE TO FOURTH EDITION. 
 
 The purpose wMch has ruled tlie preparation of this 
 edition, has been to make a book useful to lawyers. With 
 this aim the text has been revised and divided into num- 
 bered sections and a large amount of new matter has been 
 added to the notes. Although the alterations of the text 
 have been in the direction of condensation, the added notes 
 increase the size of the book about one third. Most of the 
 editorial work is in the notes. 
 
 Increased convenience in use is secured by a thorough 
 index and a great number of cross-references in the notes. 
 The American Decisions and Reports, the American State 
 Reports, the Lawyer's Reports Annotated and the National 
 Reporter System are exhaustively cited. It is believed 
 that the citation of authorities is more nearly complete 
 than in any other work on this topic. 
 
 The editor acknowledges his obligation, for assistance 
 rendered in the course of his work, to the oflBcials of the 
 Library of Congress, the officials of the Library of the New 
 York Bar Association, Hon. Avery D. Andrews, of the New 
 York Board of Police, and Hon. Edgar Allan, of the Rich- 
 mond bar. 
 
 James McIlvaine G-rat. 
 
 Washington, March 28, i8g6. 
 
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. 
 
 Oklando F. Bump. 
 
 Baltimore, September ist, 1882. 
 
PREFACE TO FIRST EDITION. 
 
 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 ex- 
 haustive collection of the authorities. It is more than 
 seventy years since the last edition of Roberts on Fraudu- 
 lent Conveyances was printed. May's Voluntary and 
 Fraudulent Conveyances and Hunt's Fraudulent Convey- 
 ances are of a later date. These works, however, treat of 
 the statute of 27 Eliz., as well as the statute of 13 Bliz., 
 and are confined to the English cases. It is manifest that 
 the subject of conveyances to defraud creditors is of suffi- 
 cient 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 authorities are very numerous and important. 
 This work is therefore confined to conveyances to defraud 
 creditors, and contains references to all the cases upon the 
 subject. 
 
 The first difficulty to be overcome in such a work arises 
 from the fact that various statutes have been passed in the 
 diflferent States. These, however, have been copied in the 
 main from the statute of 13 Bliz., and that statute has 
 always been considered as merely declaratory of the com- 
 mon law. Unity and symmetry has, therefore, been at- 
 tained by considering the law of Fraudulent Conveyances 
 as simply a part of the common law, and as the same in 
 every country where Anglican law prevails. It is manifest, 
 however, that whether a conveyance can defraud creditors 
 is a question that will sometimes depend upon the condi- 
 tion and character of the remedies afforded by the various 
 states. It is no part of this work to treat of local statutes 
 
Tl PREFACE. 
 
 aflfecting remedies, or relating to anything else. Each 
 practitioner is to be presumed to be familiar with the 
 statutes of his own state. This work simply considers the 
 subject as it was at common law, with the remedies 
 afforded by the common law. Cases, however, that vary 
 from the common law have been cited as opposed to 
 the doctrine in the text, merely to warn the practitioner 
 that the text is not applicable to his particular state, and 
 the apparent conflict of authorities can sometimes be ex- 
 plained 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 profession generally. 
 
 But after all the conflicting cases have been eliminated 
 that depend upon local statutes, there still remain a large 
 number of opposing authorities, a larger number in fact 
 than can be found in any other branch of the law. The 
 relation of debtor and creditor is one that appears to be 
 simple, and to rest simply upon the duty of common hon- 
 esty. 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. Different 
 minds do and inevitably must reach different conclusions, 
 and the doctrine of each court is the law within its juris- 
 diction. 
 
 A work could have been written covering every point of 
 the law, and selecting only those cases which were con- 
 sistent 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. 
 
PREFACE, vii 
 
 The author will also add that he does not expect that his 
 views will be adopted. Where eminent courts, after careful 
 discussion, have reached diflFerent conclusions, it would be 
 presumptuous to assert that he has accepted the better 
 opinion, for he also is fallible. All that he has aimed to do 
 has been to present a systematic and consistent theory of 
 the law, and to so arrange and classify the authorities as 
 to unfold that theory. Conflict was there before he began 
 his investigations, and will continue after his labors have 
 ceased. All the merit he claims is simply that of present- 
 ing the law in a compact, accessible shape, and thus light- 
 ening 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 ren- 
 dered 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. 
 
 Orlando F. Bump. 
 
 Baltimore, Nov. isi, 1872. 
 
CONTENTS. 
 
 CHAPTER I. PAGB 
 
 History of the Law of Fraudulent Convbtances 1 
 
 CHAPTER II. 
 What Constitutes a Fraudulent Conveyance . 10 
 
 CHAPTER III. 
 Fraudulent Intent 14; 
 
 CHAPTER IV. 
 Badges of Fraud 29 
 
 CHAPTER V. 
 Possession 61 
 
 CHAPTER VI. 
 
 When Possession is Fraud per se . . . . 139 
 
 CHAPTER VII. 
 Preferences 182 
 
 CHAPTER VIII. 
 Bona Fides of the Transfer 204 
 
^ CONTENTS. 
 
 CHAPTER IX. 
 
 GONSIDEEATION . . • • 
 
 CHAPTER XI. 
 
 Voluntary Conveyances 
 
 CHAPTER XII. 
 
 Nuptial Settlements 
 
 . 229 
 
 CHAPTER X. 
 
 What Transfers are within the Statute . ■ 2.42 
 
 . 278 
 
 305 
 
 CHAPTER XIII. 
 Subsequent Creditors ^25 
 
 CHAPTER XIV. 
 Assignments for the Benefit of Creditors . 337 
 
 CHAPTER XV. 
 Assignments exacting Releases .... 431 
 
 CHAPTER XVI. 
 How far a Fraudulent Transfer is Void . . 445 
 
 CHAPTER XVII. 
 
 Bona Fide Purchasers prom Fraudulent Grantee. 489 
 
 CHAPTER XVIII. 
 Who are Creditors 499 
 
CONTENTS. XI 
 
 CHAPTER XIX. 
 Lex Loci 507 
 
 CHAPTER XX. 
 Executions, Judgments and Attachments . . 612 
 
 CHAPTER XXI. 
 Executors de son tort 519 
 
 CHAPTER XXII. 
 Remedies 521 
 
 CHAPTER XXIII. 
 Evidence 567 
 
 CHAPTER XXIV. 
 Extent of G-rantee's Liability .... 598 
 
 CHAPTER XXV. 
 Cases and Statutes 612 
 
 Index 619 
 
TABLE OF CASES CITED. 
 
 [rbperencbs are to pages.] 
 
 Aaronson v. McCauley, 266. 
 
 Abbee v. Newton, 304. 
 
 Abbey v. Bank, 559. 
 
 Abbey v. Commercial Bank,. 526. 
 
 Abbey v. Deyo, 260, 261. 
 
 Abbott V. Davidson, 226. 
 
 Abbott V. Goodwin, 136. 
 
 Abbott V. Hurd, 330. 
 
 Abbott V. Tenny, 251, 333, 448. 
 
 Abercrombie v. Bradford, 371, 373, 
 
 407, 421. 
 Abney v. Kingsland, 274, 479, 578, 
 
 579. 580, 582, 583, 600. 
 Ackerman v. Cross, 509. 
 Ackerman v. Husicker, 239. 
 Ackerman v. Smiley, 206. 
 Ackworthw. Kempe, 465. 
 Acramanz/. Corbett, 320, 321. 
 Acton V. Knowles, 516. 
 Acton V. Woodgate, 347. 
 Adames v. Hallett, 501, 502. 
 Adams v. Adams, 228, 234, 330. 
 Adams v. Blodgett, 342, 401. 
 Adams v. Brougbton, 221, 447. 
 Adams v. Curtis, 265. 
 Adams v. Davidson, 54, 388, 541, 
 
 582. 
 Adams v. Edgerton, 34, 51. 
 Adams, Ex parte, 447. 
 Adams v. Foley, 576. 
 Adams v. Franklin, 569. 
 Adams v. Paige, 524. 
 Adams v. Slater, ) f. 
 
 Adams v. Sater, j 33> S°- 
 Adams v. Wheeler, 46, 165, 182, 200, 
 
 233> 239- 
 Addington v. Etheridge, 132, 
 Adler v. Clafin, 136. 
 Adler v. Ecker, 408. 
 
 Adler v. Fenton, 523. 
 Adlum V. Yard, 417, 469. 
 Adsit V. Butler, 533. 
 Adsit V. Sauford, 532. 
 ^tnalns. Co. v. Aldricb, 114. 
 ^tna Nat. Bank v- Manhattan Life 
 
 Ins. Co., 248. 
 Agricultural Bank v. Dorsey, 492, 
 
 493., 499- 
 Ahl, Q, P. Appeal of, 18. 
 Aiken v. Pascall, 124, 131, 134, 135. 
 Akin V. Jones, 351. 
 Ala. Ins. Co. v. Pettway, 16, 43. 
 Ala. Warehouse Co. v. Jones, 539. 
 Albany Bank v. Schermerhorn, 564, 
 
 565- 
 Albany Iron Co. v. Southern Agr. 
 
 Works, 360. 
 Albee v. Webster, 224, 226, 228, 486. 
 Alberger v. White, 189, 207. 
 Albert v. Besel, 366. 
 Albert v. Winn, 375, 400, 435, 436, 
 
 437, 488. 
 Aldrich v. Bailey, 361. 
 Aldrich ^'..Earle, 581. 
 Aldridge v. Muirhead, 263. 
 Alexander v. Deneale, 103. 
 Alexander v. Gould, 500, 574. 
 Alexander v. Pollock, 260. 
 Alexander v. Swackhammer, 492. 
 Alexander v. Tams, 270, 527. 
 Alexander v. Todd, 44, 49, 50, 52, 
 
 55, 58, 208, 212, 217, 218, 233, 
 
 600, 603. 
 Alexander v. Young, 196. 
 Alford V. Baker, 538, 548. 
 Allan V. McTavish, 21. 
 Allaire v. Day, 336. 
 Allen V. Allen, 319. 
 
XIV 
 
 TABLE OF CASES CITED. 
 
 [rbpbrbnces arb to pages.] 
 
 Allen V. Allen's Mower, 447. 
 
 Allen V. Berry', 605. 
 
 Allen V. Brow.n, 487. 
 
 Alleu V. Camp, 464, 529, 531. 
 
 Allen V. Center Valley Co., 271. 
 
 Allen V. Cowan, 113, 115, 117, 586. 
 
 Allen V. Dickey, 449. 
 
 Allen V. Edgerton, 146, 149. 
 
 Allen V. Goodman, 129. 
 
 Allen V. Holland, 483. 
 
 Allen V. Kennedy, 36, 136, 189. 
 
 Alien V. Kimball, 519. 
 
 Allen V. Kingon, 27. 
 
 Allen V. Massey, 148. 
 
 Allen V. McLendon, 59. 
 
 Allen V. Montgomery, 529, 539, 540. 
 
 Allen V. Montgomery R. R. Co.; 
 
 239. 545- 
 Allen V. Mower, 552. 
 Allen V. Russell, 304. 
 Allen V. Smith, 62, 136, 173, 174. 
 Allen V. Trustees, 611. 
 Allen V. Walt, 293, 318. 
 Allen V. Wheeler, 20, 32. 
 Allen V. White, 552. 
 AUentown Bank v. Beck, 49, 170, 
 
 182. 
 Alley V. Connell, 607. 
 Alliance Milling Co. v. Eaton, 
 
 Guinan & Co., 338, 340, 342. 
 Alliance Milling Co. v. Eaton & 
 
 Co., 345. 
 Allis V. Jones, 191. 
 Allison V. Hagan, 40, 232. 
 Allison V. Hogan, 498. 
 Allison V. Weller, 543. 
 AUyn V. Thurston, 536. 
 Alston V. Rowles, 252, 300, 318, 500, 
 
 501, 506, 597. 
 Alt V. Lafayette Bank, 262. 
 Alton V. Harrison, 34, 60, 120, 189, 
 
 197. 
 American Exchange Bank v. Xn- 
 
 loes, 401, 420. 
 American Exchange Bank v. Webb, 
 
 391, 392, 408. 
 Aniesz/. Blunt, 437, 472, 600. 
 Ames V. Gilmore, 45, 50, 57, 562. 
 
 Ammon's, Appeal, 293. 
 Amsden v. Manchester, 583, 584. 
 
 Anders v. Barton, 106. 
 
 Anderson v. Anderson, 500, 505. 
 
 Anderson v. Biddle, 245. 
 
 Anderson v. Bradford, 461, 537. 
 
 Anderson v. Brooks, 120, 170, 171. 
 
 Anderson v. Dunn, 447, 458. 
 
 Anderson v. Fuller, 43, 224, 607. 
 
 Anderson v. Hooks, 14, 206, 488. 
 
 Anderson v. Howard, 128. 
 
 Anderson v. Maltby, 238, 272. 
 
 Anderson v. Maltbie, 504. 
 
 Anderson v. Rhodus, 447. 
 
 Anderson v. Roberts, 490, 491, 495. 
 
 Anderson v. Smith, 236. 
 
 Anderson's Appeal, 248. 
 
 Anderson's Estate, 250. 
 
 Anderson v. Tompkins, 363. 
 
 Anderson v. Tuttle, 539. 
 
 Anderson v. Tydings, 187, 217, 587. 
 
 Anderson v. Wehe, 594. 
 
 Andrews v. Durant, 463, 464. 
 
 Andrews v. Jones, 52, 232, 247 269, 
 306, 30:, 315. 
 
 Andrews v. Ivudlow, 410, 440. 
 
 Andrews v. Marshall, 464. 
 
 Angell V. Draper, 529. 
 
 Angell V. Pickard, 177, 188. 
 
 Angell V. Rosenburg, 370, 380, 381, 
 
 382, 384, 385, 386, 391, 442. 
 Angier v. Ash, 574. 
 Angrave v. Stone, 577, 586. 
 Annin v. Annin, 322, 467, 541, 549, 
 
 561. 
 Annis v. Bonar, ^27, 228. 
 Ansleyw. Carlos, 273, 275, 277. 
 Ansorge v. Barth, 58, 261. 
 Anthony v. Stype, 404. 
 Anthony v. Wade, 153, 257, 611. 
 Antisdel, James S., in re, 563. 
 Antrim v. Kelly, 333. 
 Apharry v. Bodingham, 503. 
 Apperson v. Burgett, 36, 44, 49, 122, 
 
 540, 562. 
 Apperson v. Ford, 206. 
 Apple V. Ganong, 265. 
 Appleton Mill Co. v. Warder, 114. 
 
TABLE OF CASES CITED. 
 
 XV 
 
 [refbrbnces arb to pages.] 
 
 Archer v. Hubbell, 96, 136, 146. 
 Archer v. Long, 185. 
 Archer v. O'Brien, 207. 
 Archer v. People's Sav. Bank, 260. 
 Archer v. Whiting, 260. 
 Ardis V. Printup, 309. 
 Armfield v. Armfield, 313. 
 Armington v. Houston, 157. 
 Armstrong v. Baldock, 167, 169. 
 Armstrong v. Byrne, 435, 437. 
 Armstrong v. Croft, 536, 537. 
 Armstrong v. Fahnestock, 271. 
 Armstrong v. Tuttle, 132, 606. 
 Arnett v. Wanett, 289, 302. 
 Arnold v. Arnold, 234. 
 Arnold v. Bell, 218, 292, 305. 
 Arnold v. Hagerman, 230, 366. 
 Arnold v. Hartwig, 212. 
 Arnold v. Hymes, 450. 
 Arnold v. Wilds, 34. 
 Arnot V. Beadle, 254, 525. 
 Arrowsmith v. O'SuUivan, 337. 
 Arthur v. Com. Bank, 403, 406, 428. 
 Arundell v. Phipps, 64, 92, 105, 168, 
 
 307. 317- 
 Ashby V. Minnitt, 525. 
 Ashcroft V. Simmons, 108. 
 Ashfield V. Ashfield, 257. 
 Ashley v. Robinson, 345. 
 Ashmead v. Hean, 198, 216. 
 Ash V. Savage, 165. 
 Ashurst V. Given, 260, 263. 
 Ashurst V. Martin, 22, 419, 422, 427, - 
 
 430, 438, 443- 
 Ashurst's, Appeal, 462. 
 Askew V. Reynolds, 582. , 
 Aspell V. Hosbein, 108. 
 Aspinwall v. Jones, 523. 
 Assaby v. Manners, 305. 
 Atchison v. Graham, 147. 
 Athey v. Knotts, 254, 319. 
 Atkins V. Atkins, 36. 
 Atkinson v. Jordan, 437. 
 Atkinson v. Maling, 175, 239. 
 Atkinson v. Weidner, 185. 
 Atkins V. Saxton, 272. 
 Atlanta Nat. Bank v. Burke, 353. 
 Atlantic Nat. Bank v. Tavenner, 191. 
 
 Attorney-General v. Brigham, 352. 
 Atwood V. Holcomb, 266, 267. 
 Atwood V. Impson,2os, 209, 210, 596. 
 Atwood V. Protection Ins. Co., 509. 
 Auble V. Mason, 324, 609. 
 Auburn Bank v. Fitch, 188, 198. 
 August V. Seeskind, 27, 375, 426. 
 Auley V. Osterman, 398. 
 Aurand v. Shaffer, 324. 
 Austin V. Barrows, 523. 
 Austin V. Bell, 405, 406, 411, 429, 
 
 440, 474. 
 Austin V. Brown, 517. 
 Austin V. First Nat. Bank, 20, 21. 
 Austin V. Johnson, 221. 
 Austin V. Winston, 452. 
 Averill v. Loucks, 349, 390, 600. 
 Avery v. Avery, 447. 
 Avery v. Bastes, 214. 
 Avery v. Johann, 210, 217. 
 Avery v. Street, 49, 53, 182. 
 Ayer v. Bartlett, 157, 161, 245, 327. 
 Ayer v. Duncan, 457, 458. 
 Ayers v. McCaudless, 172. 
 AyliSe v. Tracy, 313. 
 A3rvault V. Murphy, 497. 
 Ayres v. Husted, 44, 486. 
 Ayres v. Moore, 208. 
 Babb V. Clemson, 25, 37, 145, 580, 
 
 582. 
 Babcock v. Booth, 447. 
 Babcock v. Eckler, 21, 22, 282, 286, 
 
 30i> 317. 591- 
 Bachemin v. Chaperon, 122. 
 Bachman v. Sepulveda, 543, 561. 
 Backhouse z/.Jett, 521, 600, 603. 
 Bacon v. Home, 509. 
 Bacon v. N. W. Mut. Life Ins. Co., 
 
 114. 
 Bacon v. Scannell, 143. 
 Badger v. Story, 206, 504, 574. 
 Badlam v. Tucker, 165, 175, 176, 239. 
 Baehr v. Wolf, 454. 
 Baels V. Stewart, 159. 
 Bagg V. Jerome, 20. 
 Bagley v. Bowe, 421, 423 
 Bailey v. Bailey, 503. 
 Bailey v. Burton, 43, 46, 534, 540. 
 
XVI 
 
 TABLE OF CASES CITED. 
 
 [rEPBRBnces are to pages. J 
 
 Bailey v. Foster, 458. 
 Bailey v. Gardner, 265. 
 Bailey v. Harris, 245. 
 Bailey v. Johnson, 112. 
 Bailey v. Kennedy, 200, 598. 
 Bailey v. Mills, 369, 403. 
 Bailey v. NicoU, 550. 
 Bailey v. Ryder, 561. , 
 
 Bainbridge v. Richmond, 130. 
 Bainton v. Ward, 256, 25?. 
 Baird v. Williams, 196. 
 Baker v. Bartol, 541, 549. 599- 
 Baker v. Bibb, 35, 48- 
 Baker v. Bliss, 493, 494, 499- 
 Baker v. Brown, 244. 
 
 Baker v. Chandler, 547. 
 
 Baker v. Oilman, 330, 337, 455, 472, 
 500, 506. 
 
 Baker v. Lyman, 299, 467, 538. 
 
 Baker v. Monk, 45. 
 
 Baker v. Pottle, 39. 
 
 Baker's Appeal, 271. 
 
 Baker v. Welch, 288, 568. 
 
 Baldwin A. & Co. v. Bond, 115. 
 
 Baldwin v. Buckland, 370, 382, 383. 
 
 387. 
 Baldwin v. Campfield, 451. 
 Baldwin v. Cawthorne, 451, 459. 
 Baldwin v. Jackson, 518. 
 Baldwin v. Johnston, 253. 
 Baldwin v. Martin, 559. 
 Baldwin v. O'Laughlin, 258. 
 Baldwin v. Beet, 345, 365, 366, 372, 
 
 409, 421, 423, 427, 429. 
 Baldwin v. Rogers, 20. 
 Baldwin v. Ryan, 231, 302, 530. 
 Baldwin v. Tuttle, 467, 473. 
 Baldwin v. Tynes, 362. 
 Baldwin v. Van Wagner, 160. 
 Baldwin v. Whitcomb, 54. 
 Ballard v. Burgett, 159. 
 Ballard v. Winter, 511. 
 Ball V . Bowe, 395, 401. 
 Ball V. Burnford, 307. 
 Ball V. Campbell, 188. 
 Ballentine v. Beall, 534, 541, 545, 
 
 563. 564. 
 Ball V. Loomis, 387, 580. 
 
 Ballou V. Jones, 537- 
 
 Ball V. Slafter, 137. 
 
 Balto. & Ohio R. R. Co. v. Glenn, 
 
 406, 408, 507. 
 Balto. & Ohio R. R. Co. v. Hoge, 
 
 509. 573> 585. 
 Bamford v. Baron, 88, 91, 137, 338- 
 Bancroft v. Blizzard, 371. 
 Bancroft v. Curtis, 232. 
 Bancroft z/. Snodgrass, 398, 402, 417, 
 Banfield v. Whipple, 20, 198, 199. 
 Bangor v. Warren, 330, 507. 
 Bank v. Ballard, 250, 556. 
 Bank v. Brown, 317, 319. 32°. 321- 
 Bank v. Burke, 447, 564. 
 Bank v. Cox, 394, 403> 409. 427. 428, 
 
 438, 439. 444- 
 Bank v. Ennis, 330. 
 Bank v. Finch, 587. 
 Bankw. Fink, 50, 51, 391. 
 Bank v. Gettinger, 511. 
 Bank v. Goodrich, 123. 
 Bank v. Gourdin, 39, 119. 
 Bank v. Harris, 545. 
 Bank v. Higginbottom, 236. 
 Bank v. Housman, 330, 586. 
 Bank v. Jacobs, 42. 
 Bank v. Lee, 317, 320. 
 Bank v. Lowrey, i8g. 
 Bank v. Marchand, 306, 307, 313, 507. 
 Bank v. McDade, 169, 233. 
 Bank v. Mead, 287. 
 Bank v. Millard, 353. 
 Bank v. Mitchell, 235, 318. 
 Bank of Com. v. Schlotfeldt, 37. 
 Bank of Ga. v. Higginbottom, 34. 
 Bank of Montreal v. J. E. Potts 
 
 Salt and Lumber Co., 185, 19I. 
 Bank of Newport v. Hirsch, 177. 
 Bank of U. S. v. Houseman, 39, 49, 
 
 50, 182,331. 
 Bank of Utica v. Finch, 239. 
 Bank v. Patton, 327, 330, 334. 
 Bank v. Planter's Bank, 196. 
 Bank v. Rogers, 539. 
 Bank v. Suydam, 544, 545. 
 Bank -v. Talcott, 355, 376, 391, 392, 
 394- 
 
TABLE OF OASES CITED. 
 
 XVll 
 
 [references are to pages.] 
 
 Bank v. Willard, 239. 
 
 Banks v. Brown, 587. 
 
 Banks v. Clapp, 402. 
 
 Bank v. Wittich, 123. 
 
 Banner v. May, 34, 35, iii. 
 
 Banning v. Sibley, 340, 410, 423. 
 
 Bannon v. Bowler, 115, 129. 
 
 Barber v. Mitchell, 518. 
 
 Barber v. Tirrell, 225, 584, 586, 589. 
 
 Barbour v. Everson, 356. 
 
 Barclay v. Smith, 250. 
 
 Barcroft v. Snodgrass, 355, 364, 600. 
 
 Barham v. Massey, 515. 
 
 Barhydt v. Perry, 21. 
 
 Barker v. French, 41, 43. 
 
 Barker v. Hall, 113, 136. 
 
 Barker v. Woods, 318. 
 
 Barkow v. Sanger, 28, 44, 136. 
 
 Barley v. Tipton, 464. 
 
 Barling v. Bishopp, 37, 326, 328, 329, 
 
 502. 
 Barnard v. Davis, 58, 59. 
 Barnard v. Ford, 292, 319. 
 Barnard a. Moore, 239. 
 Barnard v. Sutton, 451. 
 Barncord v. Kuhn, 320. 
 Barnes v. Billington, 515. 
 Barnet v. Fergus, 126, 128, 135, 487. 
 Barnett v. Goings, 320. 
 Barnett v. Kinney, 128, 184. 
 Barney v. Brown, 177. 
 Barney v. GriflSn, 410, 416, 428. 
 Barnitz v. Rice, 441. 
 Barnum v. Farthing, 303. 
 Barnum v. Hempstead, 390, 391, 
 
 407. 
 Barnwell v. Ward, 598, 
 Barrack v. McCulloch, 251, 253. 
 Barr v. Church, 189, 191. 
 Barrett v. Hart, 596. 
 Barrett v. Nealon, 27. 
 Barrett v. Pritchard, 159. 
 Barrett v. Reed, 438, 564. 
 Barrz*. Hatch, 33, 37, 43, 50, 122, 
 
 182, 195, 197, 198, 199, 204, 224, 
 
 476, 504. 540. 
 Barringer v. Stower, 262. 
 Barron v. Barron, 317, 319. 
 
 Barrow v. Bailey, 11, 13, 35, 38, 45, 
 46, 58, 208, 218, 229, 529, 550, 598, 
 
 Barrow v. Barrow, 446. 
 
 Barrow v. Paxton, 62, 93, iS.";, 
 
 Barr v. Reitz, 142, 152, 155, 174. 
 
 Bartels v. Harris, 22, 199, 221, 233. 
 
 Barth v. Backus, 509. 
 
 Bartholomew v. West, 482, 
 
 Bartles v. Gibson, 211, 
 
 Bartlett v. Blake, 246, 593. 
 
 Bartlett v. Cleavenger, 34. 
 
 Bartlett v. Mercer, 241, 
 
 Bartlett v. Teah, 420. 
 
 Bartlett v. Walker, 125. 
 
 Bartlett v. Williams, 166, 180, 
 
 Barton v. Bolton, 507, 508. 
 
 Barton v. Bryant, 544, 546, 564, 
 
 Barton v. Hosner, 448, 537. 
 
 Barton v. Morris, 447, 449, 
 
 Barton v. Vanheythuysen, 463, 464, 
 466. 
 
 Basey v. Daniel, 51, 58. 
 
 Basham v. Chamberlain, 266. 
 
 Bassett v. St. Albans Hotel Co., 531. 
 
 Bassinger v. Spangler, 114, 147. 
 
 Bass V. Woolf, 225. 
 
 Bastein v. Dougherty, 217. 
 
 Basye v. Daniel, 59. 
 
 Batchelder v. Carter, 171. 
 
 Batchelder v. White, 211, 
 
 Bate V. Graham, 540. 
 
 Bates V. Ableman, 382, 409, 574, 
 580, 596- 
 
 Bates V. Bradlej', 540. 
 
 Bates V. Callender, 238. 
 
 Bates V. Carter, 170. 
 
 Bates V. Cobb, 39, 253, 294, 532. 
 
 Bates V. Coe, 187. 
 
 Battersbee v. Farrington, 288, 313, 
 
 314. 
 Baugh V. Boles, 300, 547, 548. 
 Baugh V. Monaghan, 262. 
 Bauknight v. Sloan, 542, 545. 
 Baverstock v. Rolfe, 310. 
 Bawdes v. Amhurst, 313. 
 Baxter v. Moses, 532. 
 Baxter v. Sewell, 287, 496, 587, 589. 
 Baxter v. Wheeler, 407. 
 
XTlll 
 
 TABLE OF CASES CITED. 
 
 [rBferbncbs are to pages.] 
 
 Bayard v. Hoffman, 251, 290, 485. 
 Bay V. Cook, 45, 253, 302, 501, 527, 
 
 536. 
 Bayless v. Elcan, 448. 
 Baylor v. Brown, 34. 
 Baylor v. Smither's Heirs, 157, 245. 
 Bayne v. Wylie, 444. 
 Bayspoole v. Collins, 45. 
 Bay State Iron Co. v. Goodall, 527, 
 
 549. 550. 
 Beach v. Atkinson, 225. 
 Beach v. Baldwin, 241, 265. 
 Beach v. Bestor, 410. 
 Beach v. Catlin, 556, 576. 
 Beach v. Miller, 192. 
 Beach v. Viles, 341. 
 Beach v. White, 318, 332, 333, 334, 
 
 532, 533> 542- 
 Beadle, in re, 440, 475. 
 Beadless v. Miller, 206. 
 Beagle v. Miller, 233. 
 Beagle v. Hall, 447, 352. 
 Beall V. Harrell, 495. 
 Beall V. Williamson, 114, 448. 
 Beals V. Guernsey, 62, 93, 209. 
 Beamish v. Conant, 387. 
 Bean v. Brackett, 270. 
 Bean v. Loftus, 464. 
 Bean v. Smith, 33, 37, 58, 251, 252, 
 
 490, 491. 526, 527. 528, 589. 598, 
 
 603, 605, 606, 607. 
 Beans v. Bullitt, 340. 
 Beardsley Scythe Co. v. Poster, 543, 
 
 ■546. 
 Beards v. Wheeler, 196, 517. 
 Bear's Estate, 204. 
 Beasley v. Bray, 21. 
 Beattie v. Pool, 272. 
 Beatty v. Davis, 401, 413, 425. 
 Beaumont v. Crane, 246. 
 Beaumont v. Fletcher, 563. 
 Beaumont v. Thorp, 316. 
 Bebb V. Preston, 402. 
 Beck V. Burdett, 410, 411, 529, 532, 
 
 565. 
 Becker v. Smith, 245, 246. 
 Beckham v. Secrest, 292. 
 Beck V. Parker, 370. 
 
 Bedell v. Chase, 214, 594. 
 Bedford v. Penney, 20. 
 Beebe v. Saulter, 447. 
 Beecher v. Clark, 39, 280, 297. 
 Beecher v. Wilson, 323. 
 Beekman v. Bond, 97, 162. 
 Beekman v. Montgomery, 327, 329: 
 Beekman's, Appeal, 475. 
 Beeler v. Bullitt, 33, 35, 36, 43, 275. 
 Beels V. Flynn, 210. 
 Beers v. Botsford, 243. 
 Beers v. Dawson, 115. 
 Beidler v. Crane, 42, 223, 487. 
 Beiler v. Moore, 56. 
 Beirne v. Fatten, 510, 512. 
 Belford v. Crane, 241, 253, 265, 327, 
 
 481, 527, 553- 
 Belk V. Massey, 122, 593. 
 Belknap v. Hastings, 531. 
 Belknap v. Wendel, 585. 
 Bellamy v. Bellamy, 347, 413. 
 Bell V. De-vere, 58. 
 Bell V. Plemming, 239, 240. 
 Bell V. Greenwood, 236. 
 Bell V. Hill, 590. 
 Bell V. Hudson, 557. 
 Bell V. McCloskey, 148. 
 Bellows V. Partridge, 404, 418, 423, 
 
 424. 
 Bellows Rosenthal, 262. 
 Bellows V. Wells, 173. 
 Belmont v. Lane, 29. 
 Belt V. Raguet, 59, 207, 281, 556, 
 
 583. 584, 588. 
 Bender v. Damon, 569. 
 Benedict v. Huntington, 396, 416, 
 
 418. 
 Benedict v. Parmenter, 511. 
 Benedict v. Renfro, 123, 227, 250, 
 
 389- 
 Benford v. Schell, 173, 174. 
 Benham v, Cary, 583. 
 Benham v. Ham, 374, 531. 
 Benjamin v. McElwaine Richards 
 
 Co. 578, 582. 
 Benjamin v. Smith, 514, 516. 
 Benne v. Schnecko, 45. 
 Bennett v. Bailey, 126, 129. 
 
TABLE OF CASES CITED. 
 
 XIX 
 
 [rbfbrencbs are to pages.] 
 
 Bennett v. Bedford Bank, 301, 330. 
 Bennett v. Hutson, 482, 562. 
 Bennett v. McGuire, 280, 292, 545, 
 
 581. 
 Bennett v. Musgrove, 526, 539, 598. 
 Bennett v. Stout, 262, 529, 581. 
 Bennett v. Union Bank, 46, 47, 
 Benning v. Nelson, 345, 371, 372, 
 
 577 
 Bent V. Bent, 228. 
 Bentley v. Dunkle, 548. 
 Bentley v. Goodwin, 503. 
 Bentley v. Harris, 497. 
 Bentley v. Heintze, 273. 
 Bentley v. WHttemore, 508. 
 Benton v. Allen, 543. 
 Benton v. Jones, 42, 288, 330. 
 Benton v. Thornhill, 92, 105, 187, 
 
 197, 199. 
 Bentz V. Rockey, 22, 140, 190, 201, 
 
 225. 
 Bergen v. Porpoise Fishing Co., 191. 
 Berkey v. Judd, 594. 
 Bernal v. Hovions, 173. 
 Bernard v. Mosely, 515. 
 Bernheim z>. Beer, 601. 
 Bernheimer v. Rindskofi, 376, 398. 
 Berry v. Cutts, 374. 
 Berry, eacpwrte, 235. 
 Berry v. Hayden, 377, 422, 423. 
 Berrymanz/. Sullivan, 534. 
 Berry v. Matthews, 379, 421. 
 Berry v. Riley, 407, 410. 
 Berry v. Smith, 512, 513, 514, 515, 
 
 516. 
 Bertrand v. Elder, 253, 285, 300, 
 
 526. 
 Besley v. Lawrence, 395. 
 Bessey v. Wyndham, 461. 
 Besson v. Eveland, 323, 324. 
 Best V. Johnson, 358, 371. 
 Bethel v. Stanhope, 226, 448. 
 Bettes V. Weir Plow Co., 125. 
 Betts V. Union Bank, 311, 586, 588. 
 Betzsy. Conner, 120. 
 Beurmann v. Van Buren, 204, 207. 
 Beverly's Case, 268. 
 Bevins v. Dunham, 240. 
 
 Bholen v. Cleveland, ) „ 
 Bholen v. Cleaveland, j ^S**. 509- 
 Bibb V. Baker, 33, 59, 459, 605. 
 Bibb V. Freeman, 501. 
 Bickerstaff v. Doub, 245, 465, 
 Bickley v. Norris, 252, 275, 527. 
 Bicknell v. Mellett, 586. 
 Biddinger v. Wiland, 210, 253. 
 Bidinger v. Bishop, 594. 
 Bierne v. Ray, 218. 
 Bigelow V. Andress, 531. 
 Bigelow V. Ayrault, 598, 607. 
 Bigelow V. Doolittle, 34. 
 Bigelow V. Huntley, 157, 159. 
 Bigelow V. Smith, 495. 
 Bigelow V. Stringer, 22, 47. 
 Bilhofer v. Heubach, 535. 
 Billings V. Billings, 416, 421, 423. 
 Billingsley v. Bunce, 124. 
 Billingsley v. White, 140, 148, 149. 
 Billings V. Marsh, 352. 
 Billings V. Russell, 20, 372. 
 Bilsborrow v. Titus, 232. 
 Bingham v. Young, 515. 
 Birchell v. Stratiss, 354. 
 Bird V. Andrews, 149. 
 Bird V. Boldue, 301. 
 Birdseye v. Baker, 510. 
 Birdseye v. Underhill, 510. 
 Bird V. Sitken, 197. 
 Birely v. Staley, 295, 298, 535, 536, 
 
 542, 543, 587. 
 Birge v. Nock, 478. 
 Bisbing v. Third Nat. Bank, 120. 
 Bishofiz'. Hartley, 576. 
 Bishop V. Catlin, 471, 605, 606, 610. 
 Bishop V. Halsey, 411, 540. 
 Bishop V. O'Connell, 142, 147, 151. 
 Bishop V. Redmond, 578. 
 Bishop V. Warner, 123,. 135. 
 Bissell V. Hopkins, 61, 94, 95. 
 Bixby V. Carskaddon, 199, 596. 597. 
 Bixby V. Wood, 353. 
 Black V. Cadwell, 58, 59, 305, 505. 
 Blackman v. Preston, 40. 
 Blackman v. Wheaton, 9, 408. 
 Black V. Nease, 324, 326, 327. 
 Black V. Sanders, 283, 295, 298. 
 
TABLE OF OASES OITED. 
 
 [re^BRBncbs are to pages.] 
 
 Blackshire 2/. Pettit, iii. 
 Black V. Vaughn, 114, 200. 
 Black V. Weathers, 356. 
 Blackwell v. Walker, 245. 
 Blair v. Alston, 574. 
 Blair v. Bass, 42, 206. 
 Blair v. Smith, 255, 258. 
 Blaisdell v. Cowell, 54, 590. 
 Blaisdell v. Ivadd, 519. 
 Blake v. Faulkner, 379. 
 Blake v. Graves, 180, 582. 
 Blake v. Howard, 577. 
 Blake v. Hubbard, 525. 
 Blake v. Jones, 319, 326. 
 Blakeney v. Kirkeley, 296, 299. 
 Blake v. Sawin, 206, 294, 299, 300. 
 Blakeslee «. Rossman, 132. 
 Blake v. White, 575, 577, 582. 
 Blake v. Williams, 491. 
 Blakey's, Appeal, 187. 
 Blanchard v. Cook, ) 
 Blanchard v. Cooke, j "4, 129. 
 
 Blanchard v. IngersoU, 324. 
 
 Blanchard v. McKey, 199. 
 
 Blanc V. Paymaster Mining Co., 532, 
 
 543- 
 Bland v. Fleeman, 560. 
 Blanks v. Klein, 39. 
 Blant V. Gabler, 114, 596. 
 Blanton v. Taylor, 608. 
 Blanton v. Whitaker, 555. 
 Bleakley's, Appeal, 605. 
 Bleecker v. Johnston, 54. 
 Blenkinsopp v. Blenkinsopp, 197, 
 502, 524, 526. 
 
 Blennerhassett v. Sherman, 49. 
 Blish V. Collins, 39. 
 Blodgett V. Chaplin, 35, 48, 58. 
 Bloedorn v. Jewell, 259. 
 Blood V. Palmer, 161, 239, 245. 
 Bloom, In ri), 130. 
 Bloom V. Moy, 28, 332. 
 Blount V. Costen, 455. 
 Blqunt V. Doughty, 218, 304. 
 Blow V. Gage, 387, 392, 396, 401, 427, 
 
 551. 552. 593- 
 Blow V. Maynard, 34, 45, 314, 318, 
 
 322, 603. 
 
 Blue V. Penniston, 507, 573, 583. 
 Blum V. Jones, 578, 583. 
 Blum V. Light, 321. 
 Blum V. McBride, 18, 21. 
 Blum V. Simpson, 211. 
 Bluthenthal v. Magnus, 118, 221. 
 Blythe v. Thomas, 40. 
 Boardman v. Cushing, 42. 
 Boardman v. Halliday, 187, 373, 377, 
 
 390. 391- 
 Boardman v. Keeler, 170, 273, 517. 
 Boardman v. Willard, 359. 
 Board of Supervisors v. Vincent, 
 
 560. 
 Bobb V. Woodward, 49, 50, 213, 214, 
 
 461, 468, 477, 485, 555, 556, 559, 
 
 560. 
 Bobo V. Bryson, 266. 
 Bodine v. Edwards, 254. 
 Bodine v. Simmons, 28, 593. 
 Bodley v. Goodrich, 406. 
 Boettcher v. Colorado Nat. Bank, 
 
 353- 
 
 Bogan V. Cleveland, 258. 
 
 Bogan V. Finlay, 318. 
 
 Bogard v. Gardley, 113, 119, 290, 
 326, 327. 
 
 Bogert V. Haight, ) „ 
 
 Bogart V. Haight, \ '^"' 5**' 
 
 Boggessw. Richards, 263. 
 
 Boggs V. McCoy, 543. 
 
 Bohn V. Headley, 330. 
 
 Boies V. Henney, 52, 591. 
 
 Boils V. Boils, 503. 
 
 Boland v. Ross, 127. 
 
 Boldero v. London and Westmin- 
 ster Loan and Discount Co., 34, 
 37, 420. 
 
 Bolinger v. Gallagher, 154. 
 
 BoUand, Ex parte, 307. 
 
 Bollman v. Lucas, 211. 
 
 Bomar v. Means, 541. 
 
 Bond V. Bronson, 144. 
 
 Bond V. Seymour, in, 257, 611. 
 
 Bondz;. Swearingen, 293. 
 
 Bonesteel v. Sullivan, 446. 
 
 Bongard v. Block, 502. 
 
 Bonns Vk Carter, 201. 
 
 !o. 
 
TABLE OF OASES CITED. 
 
 XXI 
 
 [rbperences are to pages.] 
 
 Bonny v. Griffith, 230, 286, 288. 
 Bonser v. Miller, 311. 
 Bonwit V. Heyman, 396. 
 Booher v. Worrill, 34, 36, 318. 
 Booker v. Worrell, 55. 
 Boone v. Chiles, 557. 
 Boone v. Hall, 540. 
 Boone v. Ry. Co., 558. 
 Booth V. Bunce, 268, 476, 576. 
 Boothby v. Brown, 107. 
 Booth V. McNair, 376, 419, 422. 
 Borden v. Sumner, 341. 
 Border v. Benze, 515. 
 Borland v. Mayo, 19, 26, 28, 34, 35, 
 44, 46, 48, 57. 206, 208, 483, 484, 
 578, 579, 581, 583, 584. 
 
 Borland v. Walker, 31, 33, 35, 48, 
 49. 57. 596, 605. 
 
 Born V. Shaw, 509. 
 
 Borst V. Corey, 315. 
 
 Borst V. Spelman, 302. 
 
 Bosley v. Nat'l Mach. Co., 558 
 
 Bostwick V. Beizer, 504, 599. 
 
 Bostwick V. Blake, 40, 223. 
 
 Bostwick V. Menck, 449, 480, 540, 
 563, 612. 
 
 Boswell V. Goodwin, 240. 
 
 Boswell V. Green, 233. 
 
 Botcher v. Berry, 109. 
 
 Botsford V. Beers, 538. 
 
 Botts V. Cozine, 270, 33b, 334, 569. 
 
 Bott V. Smith, 37, 224, 227. 
 
 Boughslough V. Boughslaugh, 503. 
 
 Boutwell V. McClure, 570, 571. 
 
 Bowen v. Bramidge, 367. 
 
 Bowen v. Clark, 124, 362. 
 
 Bowen v. Parkhurst, 533, 422. 
 
 Bowie V. Free, 486. 
 
 Bowles V. Graves, 438. 
 
 Bowles V. Shoenberger, 45. 
 
 Bowman v. Ash, 253. 
 
 Bowman v. Herring, 106. 
 
 Bowman v. Houdlette, 59. 
 
 Bowman v. McKleroy, 459. 
 
 Bowser v. Bowser, 446. 
 
 Boyd V. Brown, 461, 499, 577. 
 
 Boyd V. De LaMontagnie, 455. 
 
 Boyd V. Dunlap, 145. 598, 607. 
 
 Boyden v. Moore, 341, 342, 387, 574. 
 
 Boyd V. Hoyt, 545. 
 
 Boyd V. Jones, 579. 
 
 Boyd V. Rockport Mills, 510. 
 
 Boydson v. Goodrich, 114. 
 
 Boyer v. Berryman, 570. 
 
 Boyle V. Gould, 114. 
 
 Boyle V. Rankin, 494. 
 
 Boylston v. Carver, 573. 
 
 Boynton v. Rawson, 565. 
 
 Bozman v. Draughan, 33, 46, 57, 218, 
 
 598, 599- 
 Brackettz*. Harvey, 123, 135, 137, 156. 
 Brackett v. Waib, 289, 300, 301, 588. 
 Brac"kett v. Watkins, 257. 
 Bradford v. Beyer, 474. 
 Bradford v. Tappan, 341. 
 Bradley v. Arnold, 157. 
 Bradley v. Buford, 327. 
 Bradley v. Hunter, 563. 
 Bradley v. Martin, in. 
 Bradley v. Ragsdale, 207. 
 Bradley v. Wyndham, 513. 
 Bradshaw v. Klein, 504, 539. 
 Brady v. Briscoe, 55, 57, 58, 59, 500. 
 Brady v. Ellison, 455. 
 Brady v. Haines, 143, 144. 
 Brahe v. Eldridge, 349. 
 Brainard v. Dunning, 396. 
 Branch Bank v. Broughton, 514, 516. 
 Branch Bank v. Kinsey, 585. 
 Branch Bank v. Robinson, 513. 
 Brandon v. Cunningham, 170. 
 Brandon v. Gowring, 526. 
 Brandon v. Robinson, 244, 245. 
 Brandt v. Stevenson, 55, 569. 
 Brashear v. West, 343, 353, 359, 379, 
 
 437- 438. 
 Brasher v. Christophe, 127. 
 Brawn v. Keller, 140, 1,52. 
 Braxton v. Gaines, 163. 
 Bray v. Comer, 204. 
 Bray v. Husgey, 45,-58. 
 Bray v. Wheeler, 266. 
 Breckenridge v. Anderson, 120, 141, 
 
 156. 483- 
 Bredin v. Bredin, 52, 57, 578. 
 Breitenbach v. Dungan, 442. 
 
XXll 
 
 TABLE OF CASES CITED. 
 
 [rbferencbs arb to pages.] 
 
 Bresnahan v. Nugent, 259. 
 Brett V. Catlin, 577. 
 Brevard v. Neely, 347, 356. 
 Brevard v. Sumnar, 544, 545. 
 Brewer v. Gay, 590. 
 Brewer v. Hyndman, 478. 
 Brewer v. Pitkin, 342. 
 Brewery Co. v. Merritt, 159. 
 Brewster v. Bours, 189. 
 Brewster v. Power, 253, 254, 330. 
 Brice v. Meyers, 59, 301, 302, 610. 
 Brickley v. Walker, 191. 
 Bridge v. Eggleston, 575. 
 Bridge v. Loeschigk, 48, 59, 209. 
 Bridgford v. Riddell, 292, 302, 303, 
 
 319, 321, 505, s6r. 
 Bridges v. Hindes, 349, 440, 441. 
 Bridget v. Cornish, 160. 
 Bridgman v. Christie, 26. 
 Briggs V. Merrill, 458, 471. 
 Briggs V. Mitchell, 24, 307. 
 Brigham v. Tillinghast, 376, 377, 
 
 422, 423. 
 Brinkerhoff v. Brown, 529, 541, 545. 
 Brinkerhoff «. Marvin, 240. 
 Brinks v. Heise, 51, 208. 
 Brinley v. Spring, 47, 134, 136, 165, 
 
 176, 221, 585. 
 Brinson v. Edwards, 202. 
 Brinton v. Hook, 222, 335. 
 Briody v. Conro, 273. 
 Briscoe v. Kennedy, 247. 
 Brisco z/. Norris, 21. 
 Brittain v. Crowther, 116. 
 Britt V. Aylett, 451, 485. 
 Britton v. Boyer, 188. 
 Britton v. Criswell, 129, 135. 
 Broadway Nat. Bank v. Adams, 244. 
 Brock V. Brook, 581. 
 Brockenbrough v. Brockenbrough, 
 
 132. 
 Brock V. Headon, 60, 222. 
 Brock V. Hudson Co., Nat. Bank, 
 
 190. 
 Brodie v. Seagrave, 275, 277. 
 Brookbank v. Kennard, 302, 548. 
 Broukovf r v. Hurst, 459. 
 Brooks V. Applegate, 325. 
 
 Brooks V. Caughran, 503, 605. 
 Brooks V. D'Orville, 497. 
 Brooks V. Gibson, 564. 
 Brooks V. Marbury, 343. 
 Brooks v. McMeekin, 225. 
 Brooks V. Nichols, 409. 
 Brooks V. Stone, 522. 
 Brooks V. Wilson, 235. 
 Brooks V. Wimer, 124, 132. 
 Brookville Nat. Bank, v. Trimble, 
 
 203, 231. 323- 
 Broome, in re, 440 
 Broughton v. Broughton, 458. 
 Brow V. Houser, 492, 493. 
 Brown's Appeal, 266, 512, 514. 
 Brown v. Austen, 302. 
 Brown v. Bank, 532, 538. 
 Brown v. Bartee, 585. 
 Brown v. Brabb, 351. 
 Brown v. Cactus Hedge Co., 45. 
 Brown v. Cavandish, 347. 
 Brown v. Chamberlain, 347, 350, 
 
 353- 
 Browne v. Hickie, 596. 
 Brownell v. Curtis, 447, 484, 550. 
 Brownell v. Dixon, 263. 
 Brownell v. Stoddard, 59. 
 Browne v. Ripka, 11. 
 Brown v. Finley, 447. 
 Brown v. Force, 181, 208, 211, 214, 
 
 215, 2i6,' 217, 487. 
 Brown v. Gilmore, 463, 
 Brown v. Godsey, 600. 
 Brown v. Guthrie, 389. 
 Browning v. Bettes, 260, 
 Browning v. Hart, 48, 121, 370, 385, 
 
 387, 484. 
 Brown v. Jones, 316, 319, 324. 
 Brown v. Keller, 162. 
 Brown v. Knox, 355, 432, 434, 437, 
 
 511, 585. 
 Brown v. Lyon, 344, 346, 354, 355, 
 
 410. 
 Brown v. Matthaus, 269. 
 Brown v. McDonald, 40, 49, 241, 
 
 252, 253, 266, 274, 333, 527, 536, 
 
 552, 603 607, 608. 
 Brown z/. Minturn, 341. 
 
TABLE OF OASES CITED. 
 
 XXlll 
 
 [refbrkncbs are to pages.] 
 
 Brown v. Mitchell, 30, 32, 39, 45, 
 
 112, 163. 
 Brown v. Niles, 496. 
 Brown v. Osgood, 26, 596. 
 Brown v. Pendleton, 324. 
 Brown v. Piatt, 131, 138. 
 Brown v. Rawlings, 231, 321. 
 Brown v. Riley, 143, 150, 483. 
 Brown v. Smith, 215, 2i6,.2i7. 
 Brownsmith v. Gilborne, 313. 
 Brown v. Spivey, 302. 
 Brown v. Vandermeulen, 330. 
 Brown v. Warren, 345, 426, 605, 606, 
 
 610. 
 Brown V. Webb, 499. 
 Brown v. Work, 201. 
 Bruce v. Berdan, 590. 
 Bruce v. Smith, 108, 113, 187. 
 Bruen v. Dunn, 492. 
 Bruggeman z'.Hoerr, 332, 500, 571. 
 Bruker v. Kelsey, 547. 
 Brummel v. Stockton, 164. 
 Brunsden v. Straiten, 313, 536. 
 Brunswick and Balke Co. v. Hoover, 
 
 160. 
 Brunswick v. McClay, 112. 
 Bryan v. Brisbin, 510. 
 Bryant v. Kelton, 118. 
 Bryant v. Kelton, 46, 62, 117, 218. 
 Bryant v. Mansfield, 459. 
 Bryant v. Simoneau, 597. 
 Bryant v. Young, 42, 600. 
 Buchanan v. Clark, 229. 
 Buchanan v. Marsh, 522. 
 Buchanan v. McMinch, 300. 
 Bucher v. Ream, 262, 265. 
 Buchner v. Stine, 191. 
 Buck V. Gilson, 254. 
 Buckley v. Duff, 21, no, 112. 
 Buckley v. Wells, 262, 264. 
 Bucklin v. Bucklin, 302. 
 Buckman v. Buckman, 519. 
 Buckmaster v. Smith, 159. 
 Bucknal v. Roiston, 61, 77, 87, 88, 
 
 515- 
 Buck V. Sherman, 526, 593. 
 Budd v. Atkinson, 203. 
 Buehler v. Gloninger, 447. 
 
 Buell V. Buckingham, 192. 
 
 Buffington v. Harvey, 543. 
 
 Buffum V. Green, 187, 195, 233, 587. 
 
 Buford V. Buford, 252. 
 
 Buhl Iron Works v. Teuton, 108. 
 
 Buie V. Kelly, 230. 
 
 Buist V. Smyth, 292. 
 
 Bulger V. Rosa, 22. 
 
 Bulkley v. Buffington, 35, 52, 58. 
 
 BuUard v. Briggs, 317, 321, 587, 588. 
 
 Bullard v. Hinkley, 477. 
 
 Bull V. Bray, 20. 
 
 BuUene v. Barrett, 129, 130, 134. 
 
 BuUett V. Chartered Fund, 271. 
 
 Bull V. Harris, 187, 448. 
 
 Bullis z/. Borden, in. 
 
 Bullitt V. Taylor, 328, 329, 534. 
 
 Bull V. I/Oveland, 469. 
 
 Bullock V. Irvine, 187, 199. 
 
 Bullock V. Narrott, 52, 590. 
 
 Bullock V. Williams, 113. 
 
 Bulmer v. Hunter, 210, 311, 312. 
 
 Bumpas v. Dotson, 43, 53, 56, 57, 
 
 226, 384. 
 Bunn V. Ahl, 16, 198, 200, 484, 606. 
 Bunn V. Bunn, 550. 
 Bunnel v. Witherow, 306. 
 Bunting v. Salz, 141. 
 Bunyard v. Seabrook, 209. 
 Burbank v. Hammond, 389. 
 Burchinell v. Weinberger, in. 
 Burckmyers v. Mairs, 292, 521, 583. 
 Burdick v. Gill, 328, 329. 
 Burdick v. Post, 16, 17, 364, 422. 
 Burdsall v. Wagoner, 280. 
 Burd V. Smith, 383, 440, 443. 
 Burgert v. Borchert, 17, 26, 148, 582, 
 
 591- 
 Burgett V. Burgett, 461. 
 Burgin v. Burgin, 15, 47, 60, 135, 
 
 221. 
 Burke v. Johnson, 519. 
 Burke v. Murphy, 33, 45. 58, 275, 
 
 486. 
 Burke v. State, 595. 
 Burkett v. Thornburg, 386. 
 Burkey v. Self, 289. 
 Burleigh v. White, 593. 
 
XXIV 
 
 TABLE OF CASES CITED. 
 
 [rbfbrbnces are to pages.] 
 
 Burling v. Patterson, 112. 
 
 Burlock V. Taylor, 511. 
 
 Burnell v. Johnson, 273, 512. 
 
 Burnell v. Robertson, 175. 
 
 Burnham v. Brennan, 112, 210. 
 
 Burnham v. Dillon, 212. 
 
 Burns v. Morse, 517, 538. 
 
 Burpee v. Bunn, 292. 
 
 Burr V. Dana, 132. 
 
 Burrill v. Lowry, 272. 
 
 Burr V. McDonald, 192, 403. 
 
 Burrows v. Alter, 469. 
 
 Burrows Asa, In re, 135. 
 
 Burrows v. Lehndorf, 374. 
 
 Burrows v. Stebbins, 144, 145, 152. 
 
 Burrows v. Stoddard, 518. 
 
 Burtch V. Elliott, 611. 
 
 Burt V. Keys, 48, 565. 
 
 Burt V. McKinstry, 17, 380, 382, 383, 
 
 580. 
 Burton v. Farinholdt, 447. 
 Burt V. Timmons, 255, 325. 
 Burtus V. Tisdall, 38, 58, 212, 238, 
 
 552, 606. 
 Bushe's, Appeal, 516. 
 Bush V. Rogan, 446. 
 Buswell V. Lincke, 52, 530, 531, 532. 
 Butcher v. Harrison, 504. 
 Butler V. Howell, 112. 
 Butler V. Jaffray, 438, 600. 
 Butler V. Moore, 8, 446, 458. 
 Butler V. O'Brien, 468, 469, 470, 473. 
 Butler V. Rahm, 129. 
 Butler V. Ricketts, 320. 
 Butler V. Van Wyck, loi. 
 Butler V. White, 499. 
 Butt V. Caldwell, 177, 179. 
 Butterfield v. Stanton, 320. 
 Butt V. Peck, 355, 396, 412, 427, 429, 
 Butts V. Peacock, 44. 
 Butts V. Swartout, 94. 
 Byers v. Fowler, 551, 567, 609. 
 Byrd V. Bradley, 369, 387, 403. 
 Byrd v. Curlin, 446. 
 Byrd v. Forbes, 126. 
 Byrd v. Perry, 126. 
 Byrne v. Becker, 206. 
 Byrne Owen, In re, 271. 
 
 Byrnes v. Clark, 241. 
 
 Byrnes v. Hatch, 178. 
 
 Byrnes z/. Shaw, 190. 
 
 Byrnes v. Volz, 10, 227. 
 
 Byrod's Appeal, 477. 
 
 Cadbury v. Nolen, 25, 144, 174, 208. 
 
 Cadogan v. Kennett, 9, 10, 13, 29, 
 
 61, 80, 85, 121, 168, 208, 228, 
 
 281, 286, 306, 307, 325. 
 Cadwell v. Prey, 129. 
 Cady V. Whaling, 539. 
 Caffal V. Hale, 232. 
 Cage V. Wells, 509. 
 Cahu V. Farmers and Traders' 
 
 Bank, 39. 
 Cahoon v. Marshall, 151, 582. 
 Cahoon v. Miers, 113. 
 Caillaud v. Estwick, 252, 527. 
 Cake V. Pottsville Bank, 596. 
 Caldwell v. Bruggerman, 356, 358. 
 Caldwell v. Pollock, 257. 
 Caldwell v. Rose, 372, 386, 582. 
 Caldwell's Bank v. Crittenden, 374. 
 Caldwell v. Williams, 369, 372, 375, 
 
 386, 488, 578, 579. 
 Calkins v. Lockwood, 180, 239, 246. 
 Call V. Gray, 113. 
 Call V. Perkins, 533. 
 Call V. Seymour, 159. 
 Callan v. Statham, 35, 37, 38, 45, 49, 
 
 50, 55. 57. 
 Calleu V. Thompson, 116. 
 Cameron v. Montgomery, 150, 187, 
 
 386, 401. 
 Cameron v. Romille, 455. 
 Camp V. Scott, 269. 
 Camp V. Thompson, 221, 302. 
 Campbell v. Bowles, 51, 241, 265. 
 Campbell v. Davis, 41, 223, 487. 
 Campbell v. Erie R. R. Co., 462, 
 
 479> 600. 
 Campbell v. Jones, 474, 477. 
 Campbell v. Laudberg, 52. 
 Campbell v. Leonard, 124. 
 Campbell v. Patterson, 200. 
 Campbell Mfg. Co. v. Walker, 351. 
 Campbell v. Waters, 318. 
 Campbell v. Whitson, 448. 
 
TABLE pF, CASES CITED. 
 
 XXV 
 
 [rbferencbs are to pages.] 
 
 Campbell v. Woodworth, 427, 428. 
 Campion v. Cotten, 255, 305, 307, 
 
 311- 
 Candee v. Lord, 11, 12, 326, 570, 
 
 571- 
 Candler v. Fisher, 464, 567. 
 Cannon v. Peebles, 389, 391, 417, 
 
 419. 423. 
 Canton v. Dorchester, 446, 450. 
 Canton v. Webb, 159. 
 Cantrell, In re, 130. 
 Cantrell Samuel, In re, 135. 
 Capron v. Porter, 106, 153. 
 Carey v. Giles, 402. 
 Carey v. McKee, 188. 
 Carl V. Smith, 292, 482, 501. 
 Carlisle v. Gaskill, 238. 
 Carlisle v. Rich, 281, 292, 284, 505. 
 Carlisle v. Tindall, 525. 
 Carll V. Emery, 451. 
 Carlton v. Baldwin, 409, 413, 423. 
 Carlton v. King, 336. 
 Carnahan v. McCord, 491. 
 Carnahan v. Schwab, 185. 
 Carnahan v. Wood, 582. 
 Carnall v. Duvall, 195. 
 Carne v. Brice, 169. 
 Carney v. Carney, 55, 582. 
 Carny v. Palmer, 208. 
 Carpenter v. Blote, 239. 
 Carpenter v. Carpenter, 236, 241, 
 
 299. 321, 328. 
 Carpenter v. Clark, 143. 
 Carpenter t/. Cushman, 197. 
 Carpenter v. Mayer, 142, 144, 180. 
 Carpenter v. McClure, 457. 
 Carpenter v. Muren, 44, 191, 206, 
 Carpenter v. Roe, 253, 294, 300, 327, 
 
 332. 
 Carpenter v. Simmons, 124, 476. 
 Carpenter v. Underwood, 409, 421. 
 Carr v. Breese, 286, 327, 330. 
 Carr v. Burdiss, 105, 120. 
 Carr v. Dole, 341. 
 Carr v. Parrington, 539. 
 Carr v. Gale, 573, 583, 589. 
 Carr v. Hilton, 504, 538. 548, 559- 
 Carr v. Johnson, 109. 
 
 Carr v. Parker; 531. 
 
 Carroll v. Hay ward, 494. 
 
 Carrolton Bank v. Cleveland, 582. 
 
 Carson v. Foley, 302. 
 
 Carson v. Stevens, 325. 
 
 Carter v. Baker, 37, 570. 
 
 Carter v. Bennett, 463, 465, 529, 570. 
 
 Carter v. Carpenter, 58. 
 
 Carter v. Castleberry, 476. 
 
 Carter v. Dickinson, 547. 
 
 Carter v. Graves, 115. 
 
 Carter v. Grinshaw, 327, 328. 
 
 Carter v. Gunnels, 596, 597. 
 
 Carter v. Happel, 225, 226. 
 
 Carter v. Neal, 11. 
 
 Carter v. Rewey, 374. 
 
 Carter v. Sheriff, 514. 
 
 Carter v. Stanfield, 115. 
 
 Carter v. Watkins, 70, 73, 162, 164. 
 
 Cartwright v. Dickinson, 360. 
 
 Cartwright v. McGown, 558. 
 
 Cartwright v. Phoenix, 155, 174, 
 
 178, 179. 
 Carver v. Barker, 40. 
 Carville v. Stout, 479, 600. 
 Case V. Beauregard, 270, 271, 532. 
 Case V. Phelps, 294, 327, 328, 329. 
 Case V. Sawtelle, 49. 
 Case V. Win^hip, 165. 
 Casey v. Janes, 387, 424. 
 Casher v. Peterson, 515. 
 Caskie v. Webster, 509. 
 Caskle v. Amarine, 585. 
 Cason V. Murray, 26, 189. 
 Cass V. Perkins, 167. 
 Cassell V. Williams, 482. 
 Castle V. Bader, 531. 
 Castle V. Palmer, 611. 
 Caston V. Ballard, 459. 
 Caston V. Cunningham,, 292, 294, 
 
 333- 
 Castro V. lilies, 208, 212. 
 Caswell V. Caswell, 447, 570. 
 Caswell V. Hill, 254, 292, 582. 
 Catchings v. Harcrow, 59, 210. 
 Catchings v. Manlove, 251, 292, 527, 
 
 547. 548. 
 Catherwood's Estate, In re, 34, 219. 
 
XXVI 
 
 TABLE OF CASES CITED. 
 
 [references are to pages.] 
 
 Catliii V. Bank, 191. 
 
 Catlin v.. Currier, 131, 135- 
 
 Catlin V. Eagle Bank, 402. 
 
 Cato V. Easley, 290, 505. 
 
 Caton V. Caton, 315. 
 
 Caton V. Moseley, 355. 
 
 Cator V. Collins, ) ^oo. 
 
 Cater v. Collins, ) ^' 
 
 Cecil Bank v. Snively, 254, 525, 584- 
 
 Central Bank of Canada v. Ellis, 
 
 260. 
 Central Nat. Bank v. Doran, 39. 
 Central R. R. Co. v. Claghorn, 189, 
 
 191. 
 Cent. Trust Co. v. Cent. Iron Works, 
 
 239- 
 Chafiee z-. EourthNat'lBank, 509. 
 
 Chaffee v. Sherman, 161, 245. 
 
 Chaffees v. Risk, 402. 
 
 Chaffin V. Doub, 173. 
 
 Chamberlain v. Bromberg, 360. 
 
 Chamberlain, et al In re, 409. 
 
 Chamberlain v. Stern, 144, 525. 
 
 Chamberlayne v. Temple, 300, 519, 
 
 536, 537. 544, 569, 610. 
 Chambers v. Sallie, 259, 290, 292, 
 
 611. 
 Chambers v. Spencer, 293, 300, 301. 
 Chambersburg National Bank v. 
 
 Buckeye Iron Works, 178. 
 Chamley v. Dunsany, 334. 
 Chancellor v. Phillips, 515. 
 Chandler v. Caldwell, 403. 
 Chandler v. Colcord, 124, 126, 131. 
 Chandler v. Scott, 114. 
 Chandler v. Van Roeder, 507. 
 Chapiu V. Jenkins, 124, 128. 
 Chapin v. Pease, 232. 
 Chapin v. Thompson, 393. 
 Chapman v. Callahan, 451. 
 Chapman v. O'Brien, 591. 
 Chapman v. Ransom, 605. 
 Chappel V. Clapp, 33, 35, 57, 58, 
 
 208. 
 Charlton v. Gardner, 20, 168, 288, 
 
 330, 331- 
 Charlton v. Lay, 137. 
 
 Charter Oak Life Insurance Co. v- 
 
 Brant, 250. 
 Chase v. Bennett 114. 
 Chase v. Chapin, 351. 
 Chase v. Chase, 503, 576. 
 Chase v. Elkin, 266. 
 Chase v. Ingalls, 159. 
 Chase v. Ralston, 174. 
 Chase v. Searles, 252, 527, 543. 564- 
 Chase v. Tuttle, 361. 
 Chase v. Walker, 487. 
 Chase v. Walters, 198, 576. 
 Chase v. Welsh, 57. 
 Chautauqua County Bank v. Risley, 
 
 474. 475. 566. 
 Chautauqua Bank v. White, 562. 
 Chatham Bank v. O'Brien, 123. 
 Cheatham v. Hawkins, 21, 115, 124, 
 
 131, 222. 
 Cheek v. Waldron, 210. 
 Chenery v. Palmer, 42, 484. 
 Chessman v. Exall, 446. 
 Chester v. Bower, 178. 
 Chew V. EHingwood, 361. 
 Chicago Coffin Co. v. Harris, 258. 
 Chicago Coffin Co. v. Maxwell, 374. 
 Chicago Lumber Co. v. Fisher, 130. 
 Chickering v. Hatch, 42. 
 Chickering v. Raymond, 464. 
 Chickering v. White, 141. 
 Childs V. Connor, 302. 
 Childs V. Derrick, 479, 600. 
 Childs V. Hurd, 585. 
 Chiles V. Bernard, 154, 465. 
 Chipman v. Glennou, 55, 200. 
 Chipman v. McClellan, 291. 
 Chipman v. Peabody, 508. 
 Chisholm v. Chittenden, 12S. 
 Chittenden v. Brewster, 532, 564. 
 Chophard v. Bayard, 129, 136. 
 Choteau z/. Jones, 447, 491, 505. 
 Choteau v. Sherman, 187, 200. 
 Chrisman v. Graham, 337, 472. 
 Chrisman v. Roberts, 611. 
 Christian v. Greenwood, 208. 
 Christopher v. Covington, 365, 417, 
 
 421, 577. 583. 
 
TABLE OF CASES CITED. 
 
 XXVll 
 
 [rBPSRencbs arb to pagbs.] 
 
 Christopherson v. Burton, 273, 517, 
 
 518. 
 Christ's Hospital v. Budgin, 222, 
 
 ass- 
 Christy V. Courtenay, 253. 
 Chubb V. Stretch, 247. 
 Church w. Chapin, 226, 298, 299, 304, 
 
 570, 571, 607. 
 Church V. Church, 447, 49S. 
 Church V. Drummond, 365. 
 Church V. Muir, 457. 
 Churchill v. Wells, 204, 297, 328, 
 
 329. 333. 334- 
 Churchman v. Harvey, 305. 
 Cipperly v. Rhodes, 257. 
 Citizens' Bank v. Bolen, 20, 21. 
 Citizens' Bank v. Bowen, 465. 
 Citizens' Bank v. Kendrick, 394. 
 Citizens' Bank v. Williams, 398. 
 Citizens' Nat'l Bank v. Renick, 185. 
 City Bank v. Westbury, 130, 137. 
 City Nat'l Bank v. Bridges, 56. 
 City Nat'l Bank v. Goodrich, 127. 
 City Nat'l Bank v. Hamilton, 231, 
 
 232> 327. 328, 581. 
 City of St. l/ouis v. Alexander, 191. 
 Clafflin V. Ballance, 574. 
 Claflin V. Foley, 132. 
 Claflin V. French, 529. 
 Claflin V. McDermott, 534. 
 Claflin V. Mess, 21, 294, 333. 
 Claflin z/. Rosenberg, ) ^„o ^,a -r. 
 Claflin V. Rosenburl, \ ^°^' ^48, i49- 
 Claggett V. Gibson, 502. 
 Clairborne v. Goss, 58. 
 Clap V. Smyth, 355. 
 Clapp V. Ditman, 185. 
 Clapp V. Ely, 240. 
 Clapp V. Ingraham, 256. 
 Clapp V. Rogers, 474. 
 Clapp V. Tirrell, 586. 
 Clapp V. Uttley, 418, 
 Clark V. Anthony, 568, 570, 571. 
 Clark V. Bailey, 538, 552, 567. 
 Clark V. Banner, 531. 
 Clark V. Brockway, 564. 
 Clark V. Chamberlain, 207, 254, 280. 
 Clark V. Cox, 120, 169. 
 
 Clark V. Depew, 35, 37, 295, 585, 
 
 586. 
 Clark V. Douglass, 9, 44, 517. 
 Clark V. French, 59, 336, 337. 
 Clark V. Fuller, 214, 422. 
 Clark V. Groom, 384, 386. 
 Clark V. Johnston, ) g 
 
 Clark V. Johnson, C 49i 5 • 
 
 Clark V. Killian, 328, 330. 
 
 Clark V. Lee, 108. 
 
 Clark, V. Malpas, 45. 
 
 Clark, V. McClelland, 363. 
 
 Clark V. Mix, 354. 
 
 Clark V. Morse, 143. 
 
 Clark V. Robbins, 409. 
 
 Clark V. Rosenkrans, 322, 324. 
 
 Clark V. Rucker, 232. 
 
 Clark V. Wentworth, 208. 
 
 Clark V. Wise, 33, 48. 
 
 Clarke v. McGeihan, 58. 
 
 Clarke v. Palmer, 49. 
 
 Clarke v. Rowling, 467. 
 
 Clarke v. Waite, 575. 
 
 Clarke v. Wright, 308, 310. 
 
 Clarkson v. De Peyster, 530, 532, 
 
 534. 541, 542. 
 Clarkson v. White, 200. 
 Claudius v. Aguirre, 112. 
 Clayborn v. Hill, 153, 165, 168, 485. 
 Clayton v. Brown, 120, 163, 281, 293. 
 
 301, 568. 
 Clayton v. Johnson, 437, 438. 
 Clayton v. Tucker, 519. 
 Clayton v. Wilton, 309. 
 Clayton. Anthony,) ^7, 169, .80, 
 
 Claytor v. Anthony, \ ^^'ja, 
 Claywell v. McGimpsie, 585. 
 Cleaveland v. Deming, 464. 
 Clemens v. Clemens, 456, 457. 
 Clemens v. Davis, 198. 
 Clement v. Cozart, 40, 42, 223. 
 Clement v. Johnson, 185. 
 Clements v. Eccles, 269, 287, 293, 
 
 301. 
 Clements v. Moore, 8, 208, 217, 550, 
 
 552, 580, 598, 600, 601, 607. 
 Clerk V. Nettlestrip, 320 
 
XXVlll 
 
 TABLE OF OASES CITED. 
 
 [rbfbrencbs are to pages.] 
 
 Cleveland v. Railroad Co., 200, 406, 
 
 606. ' 
 Cleveland Stove Co. v. Wilson, 202. 
 Clinn V. Russell, 157. 
 Clinton Manufacturing Co. v. Hum- 
 
 mell, 241. 
 Clough V. Lambert, 317. 
 Clow V. Woods, 94, 156. 161, 162, 
 
 163, 164, 165, 181, 337. 
 Clute V. Fitch, 119, 461, 465. 5o4- 
 Clute V. Newkirk, 121. 
 Clute V. Steele, 180. 
 Coakley v. Weil, 398. 
 Coale V. Mildred, 541. 
 Coate V. Williams, 405, 408, 424. 
 Coates V. Day, 543. 
 Coates V. Gerlach, 39, 293, 318. 
 Coats V. Donnell, 191. 
 Cobb V. Buswell, 511. 
 Cobb V. Norwood, 544. 
 Coburn v. Pickering, 73, 94, 109, 
 
 161, 164, 223. 
 Cochran v. McBeath, 168. 
 Cochran z/. Paris, 137, 138. 
 Cochrane v. Gilbert, 54, 107. 
 Cocke V. Bromley, 447. 
 Cocke V. Oakley, ) 
 Cock z-. Oakley, h^^. 57°. 
 Cockrell v. Cockrell, 556. 
 Codman v. Freeman, 134, 539. 
 Codwise v. Gelston, 475, 564. 
 Coffin V. Day, 236. 
 Coffin V. Morrill, 262, 319. 
 Coggill V. Hartford & N. H. Ry., 
 
 158. 
 Cohen v. Knox, 305, 306, 
 Cohen v. Myers, 522. 
 Cohens v. Summers, 349. 
 Cohn V. Mulford, 577, 581. 
 Cohn V. Ward, 18. 
 Coker z/. Shropshire, 233. 
 Colbert v. Sutton, 210. 
 Colburn v. Mortpn, 604, 6io. 
 Colby V. Cressy, 513. 
 
 Cole V. Albert, ) . 
 ColeJ/.Albers,r^7,239,587. 
 
 Cole v. Berry, 159. 
 
 Cole V. Davies, 61, 82, 170, 171. 
 
 Cole V. Malcolm, 612. 
 
 Cole V. Marple, 564, 604. 
 
 Cole V. Mercantile Trust Co., 28. 
 
 Cole V. Terrell, 326, 328, 329. 
 
 Cole V. Tyler, 283, 292, 467, 562. 
 
 Cole V. Varner, 326, 330, 582. 
 
 Cole V. White, 63, 71, 75. 10°. "6, 
 
 476, 504. 
 Coleman v. Bank, 170. 
 Coleman v. Burr, 241, 265. 
 Coleman v. Cocke, 252, 253, 254, 
 
 491. 497, 525. 529- 
 Coleman v. Croker, 529. 
 Coleman v. Pinkatd, 542. 
 Coleman v. Smith, 191, 207. 
 Coles V. Sellers, 239. 
 Coley V. Coley, 57, 241. 
 College V. Powell, 320, 321, 574, 585,- 
 
 607, 608. 
 Collier v. Davis, 437, 438. 
 Collins V. Brush, 73, 97, 161. 
 Collins V. Burton, 529. 
 Collins V. Carlisle, 239. 
 Collins V. Cook, 206. 
 Collins V. Hood, 271. 
 Collins V. Lightle, 106. 
 Collins V. Myers, 109, 124, 131, 135. 
 Collins V. Shaffer, 524. 
 Collins V. Taggart, 49, 106, 122. 
 Collins V. Wiley, 341. 
 Collins V. Without, ) 
 Collins V. Wilhoit, \ '°^' '^°- 
 CoUomb V. Caldwell, 410, 412. 
 CoUumb V. Read, 412, 496, 581, 583, 
 
 599- 
 Colombine «. Penhall, 311, 312. 
 Colquitt V. Thomas, 36, 491, 493, 
 
 586, 592. 
 Coltraine v. Causey, 447. 
 Columbia Electric Co. v. Dixon, 16. 
 Columbus Watch Co. v. Hodenpyl, 
 
 196. 
 Comaita v. Kyle, 112. 
 Combs V. Watson, 548. 
 Comly V. Fisher, 178. 
 Commercial Bank, v. Cunningham, 
 
 239. 
 Com. Nat. Bank v. Mosser, 357. 
 
TABLE OF OASES OITED. 
 
 XXIX 
 
 [repbrbncks aIrs to pagbs.] 
 
 Comm. V. Fletcher, 247, 260, 263, 264, 
 
 582. 
 Comm. V. Richardson, 491. 
 Commonwealth v. Stremback, 515. 
 Commonwealth v. Woodward, 595, 
 Compton V. Perry, 226, 275, 556. 
 Comstock V. Rayford, 31, 35, 53, 54, 
 
 "5. 541- 
 Couard v. Atlantic Ins. Co., 165, 
 
 175, 176. 
 Confer v. McNeal, 580. 
 Conger v. I,owe, 244. 
 Conger v. Sands, 564. 
 Conihe v. Sawyer, 591. 
 Conillard v. Duncan, 567. 
 Conkling v. Carson, \ 349, 410, 414, 
 Conklin v. Carson, j 438. 
 Conkling v. Conrad, 421, 423. 
 Conkling v. Shelley, 35, 136. 
 Conlee Lumber Co. v. Ripon L. & 
 
 M. Co., 383. 
 Connah v. Sedgwick, 384, 387, 388. 
 Conneticut Mutual Life Ins. Co v. 
 
 Smith, 54, 212, 493. 
 Conuell V. Chandler, 447. 
 Connelly v. Walker, 201. 
 Conner v. Carpenter, 457. 
 Conner v. Hardwick, 188. 
 Connolly v. Miller, 21. 
 Connor v. Berry, 265. 
 Connor v. Hawkins, 258. 
 Conover v. Hull, 193. 
 Conrad-z/. Shomo, 324. 
 Conrad v. Smith, 178. 
 Consolidated Tank Line Co. v. 
 
 Collier, 510. 
 Consolidated Tank Line Co. v. K. 
 
 C. Varnish Co., 192. 
 Coustantine v. Twelves, 34, 38, 123, 
 
 136, 200. 
 Continental Life Ins. Co. v. Palmer, 
 
 250. 
 Converse v. Hartley, 330, 333, 334. 
 Conway, Ex parte, 347, 354, 357, 
 
 358, 359. 360, 376, 377, 383, 401, 
 
 404,424,430. 
 Conway v. Brown, 325. 
 Conway v. Edwards, 151, 173. 
 
 Cook V. Gleason, in re, 271, 
 
 Cook V. Bennett, 130. 
 
 Cook V. Hopper, 465, 567. 
 
 Cook V. Johnson, 290, 326, 501, 503, 
 
 526. 553- 
 Cook v'. Ligon, 504, 507. 
 Cook V. Mann, 145, 146. 
 Cook V. Miller, 465. 
 Cook V. Mobire, 576. 
 Cook v. Swan, 574, 577, 584. 
 Cook z/. White, 214. 
 Cook V. Wood, 513, srs. 
 Cooke V. Cooke, 502, 524, 573, 576, 
 
 577- 
 Cook V. Smith, ) 
 Cooke z/. Smith, ^ 48, 59. 37°. 
 Cookingham v. Ferguson, 545. 
 Cool V. Roche, 114. 
 Coole z/. Braham, 586. 
 Coolidge V. Curtis, 187. 
 Coolidge V. Heueky, 211. , 
 
 Coolidge V. Melvin, 222, 227, 335, 
 
 486. 
 Coombe v. Meade, 529. 
 Coope V. Cowles, 362. 
 Cooper V. Brock,. 113. 
 Cooper V. Davidson, ) 
 Cooper V. Davison, ) 
 Cooper V. Gunn, 542. 
 Cooper V. McPlum, 402. 
 Cbpeland v. Weld, '341, 342, 394. 
 Copenheaver v. Huffacker, 57, 500. 
 Copis V. Middleton, 36, 46, 56, 59, 
 
 204, 207, 218, 304. 
 Coppage V. Barnett, 448, 481. 
 Corbett v. Littlefield, 114. 
 Corder v. Williams, 502. 
 Cordes v. Staszeir, 17, 43, I99, 578. 
 Corey v., Greene, 253, 526, 533. 
 Corey v. Wadsworth, 193, 194. 
 Corlett V. RadclifE, 38, 282, 304, 607. 
 Corlies v. Stanbridge, 515, 516. 
 Corn V. Jackson, 346. 
 Cornell v. Radway, 530, 543. 
 Corning v. Rinehart Medicine Co., 
 
 II3- 
 Cornish v. Clark, 21, 56, 280, 610. 
 Cornish v. Dews, 370, 371. 
 
XXX 
 
 TABLE OF OASES CITED. 
 
 [references are to pages.] 
 
 Cortland Co. v. Herkimer Co., 594. 
 Cortland Wagon Co. v. Sharvy, 108 
 
 118. 
 Cosby V. Ross, 252, 330, 527. 
 Costenbader v. Shuman, 461. 
 Costello V. Chamberlain, 185. 
 Costillo V. Thompson, 277, 290, 
 Cottle V. Tripp, 320, 321. 
 Cotterell v. Homer, 308. 
 Cottrell V. Moody, 522. 
 Coulston V. Gardiner, 503. 
 Coutts V. Greenhow, 306, 310, 311, 
 
 538. 
 Covanhovan v. Hart, 188, 195, I98, 
 
 572 > 584- 
 Covert V. Rogers, 360, 383. 
 Cowles V. Rickett, 187. 
 Cox V. Cox, 56. 
 Cox V. Cunningham, 253. 
 Cox V. Dunham, 526. 
 Cox V. Fraley, 35, 187, 466. 
 Cox V. Jackson, 448, 515. 
 Cox V. McBee, 235. 
 Cox V. M'Dougal, 515. 
 Cox V. Miller, 199, 277. 
 Cox V. Piatt, 370, 371, 385, 397, 398, 
 
 567. 
 Cox V. Shropshire, 54, 257. 258. 
 Cox V. Trent, 116. 
 Cox V. Wilder, 481, 482. 
 Craft V. Bloom, 372, 392, 408. 
 Cragiu v. Carmichael, 539. 
 Craig V. Gamble, 292. 
 Craig V. Tappin, 239, 240, 587. 
 Craig V. Ward, 157. 
 Cram v. Mitchell, 384, 385, 387, 577, 
 Cramer v. Blood, 483. 
 Cramer v. Reford, 241, 265, 327, 505, 
 Crandall v. I<incoln, 24. 
 Crane v. Deming, 239. 
 Crane v. Stickles, 227, 228, 501. 
 Grapeter v. Williams, 47 . 
 Crary v. Sprague, 45, 275, 574. 
 Craver v. Miller, 45, 57, 155, 471. 
 Crawford v. Austin, 198, 404. 
 Crawford v. Carper, 57, 231. 
 Crawford v. Davis, 160. 
 
 Crawford v. Kirksey, 36, 53, 58, 198, 
 
 234, 505, 564, 566, 600. 
 Crawford v. Lehr, 446, 447. 
 Crawford v. Logan, 327, 330. 
 Crawford v. Neal, 27, 148. 
 Crawford v. Ritter, 579. 
 Crawford v. Spuing, 522. 
 Cray v. Rooke, 234. 
 Creagh v. Savage, 120. 
 Credle v. Carrawan, ) „ 
 
 Credle v. Carawan, ) ^^^' ^^' 
 Creed v. Lancaster Bank, 288, 334. 
 Creighton z/. Hoppis, 582. 
 Creswell v. Coke's Case, 550. 
 Creswell v. McCaig, 231. 
 Cribben v. Ellis, 409. 
 Criley v. Vasel, 150, 153. 
 Crim V. Kessing, 569. 
 Crippen v. Hudson, 532, 534. 
 Crisp V. Pratt, 20. 
 Crittenden v. Hill, 362. 
 Crockett v. Maguire, 497. 
 Croft V. Arthur, 253, 306, 307, 312, 
 
 313. 476, 550, 603, 609. 
 Crooker v. Holmes, 461. 
 Crooks V. Stuart, 124, 539, 
 Cropsey v. McKinney, 265, 317,529. 
 Crosby v. De GrafEenreid, 447. 
 Crosby v. Hillyer, 357. 
 Cross V. Bryant, 395, 402, 413. 
 Cross V. Carstens, 185. 
 Cross V. Glode, T69. 
 Crossley v. Elworthy, 21, 37, 287, 
 
 294. 295, 300. 
 Crouch V. Carrier, 163. 
 Crow V. Beardsley, 17, 339, 372, 402. 
 Crow V. Red River Co. Bank, 137. 
 Crow V. Ruby, 354, 577, 585. 
 Crowninshield v. Kittredge, 200, 
 
 483. 
 Crozier v. Young, 252, 253, 527. 
 Cruikshank v. Cogswell, 180. 
 Crumbaugh v. Kugler, 287, 298, 304, 
 
 330, 607. 
 Crumnien v. Bennett, 257, 6ii. 
 Crunkleton v. Wilson, 519. 
 Crutchfield V. Hudson, 467, 469 
 473- 
 
TABLE OF CASES CITED. 
 
 XXXI 
 
 [refbrbnces are to pages.] 
 
 Cubbage v. Adams, 522, 529. 
 Culbertson v. Luckey, 553. 
 Cumberland Bank v. Hann, 514, 
 
 515. 516. 
 Gumming v. Fryer, 9, 274, 583. 
 Cummings v. McCuUough, 256, 374, 
 
 387, 388, 491, 552, 564, 577, 600. 
 Cummins v. Griggs, 173, 175. 
 Cunningham v. Dwyer, 229, 586, 
 
 587- 
 Cunningham v. Freeborn, 341, 342, 
 
 343. 354, 357, 394, 4oi, 420, 552, 
 
 567- 
 Cunningham v. Hamilton, 143, 164. 
 Cunningham v. Neville, 140. 
 Curd V. Lewis, 118, 501. 
 Cureton v. Doby, 199, 203, 226. 
 Currie v. Hart, 121, 384, 407, 582. 
 Currier v. Ford, 465. 
 Currier v. Studley, 557. 
 Currier v. Taylor, 206. 
 Curry v. Ellerbe, 163. 
 Curry v. Glass, 531. 
 Curtin v. Isaacsen, iii. 
 Curtis V. Fox, 330. 
 Curtis V. Isaacsen, 39. 
 Curtis v. Leavitt, 28, 219, 220, 221, 
 
 268, 335, 410. 
 Curtis V. Moore, 573, 576, 585, 591. 
 Curtis V. Price, 333, 446. 
 Curtis V. Riddle, 491. 
 Curtis V. Wilcox, 129. 
 Cushwa V. Cushwa, 447, 458, 461. 
 Cutcheon v. Buchanan, 17, 18, 21. 
 Cutler V. Dickinson, 42. 
 Cutter V. Copeland, iil, 119. 
 Cutter V. Griswold, 253, 254, 301, 
 
 525- 
 Cutter V. Pollock, 185. 
 Cutter V. Tuttle, 451. 
 Cutting V. Cutting, 256. 
 Cutting V. Jackson, 141, 147. 
 Cutting V. Pike, 489. 
 Cuyler v. McCartney, 371, 574, 578, 
 
 579, 585- 
 Cuyler v. Moreiland, 531, 534. 
 Daggett V. Adams, 464. 
 
 Dahlman v. Jacobs, 185. 
 Daily v. Jordan, 260. 
 Dale V. Harrison, 446. 
 Dallam v. Fitler, 169, 386. 
 Dallam v. Renshaw, 226, 583, 593. 
 Dalplay, in re,- 510. 
 Dalton V. Mitchell, 53, 58. 
 Dalton V. Currier, 201, 367. 
 Dambmann v. Butler, 584. 
 Dameron v. Williams, 465, 477. 
 Damon v. Bryant, 336, 461, 465, 502. 
 Dana v. Bank of U. S., 185, 388,403, 
 
 410, 414. 
 Dana v. Haskill, 530. 
 Dana v. Lull, 354, 362, 375, 410, 4", 
 
 488. 
 Dana v. Stamfords, 198. 
 Danbury v. Robinson, 491. 
 Danby v. Sharp, 53, 59. 
 Dance v. Seaman, 183, 379, 408, 
 
 410, 417. 
 Daney v. Hubbis, 516. 
 Danforth v. Beattie, 257, 611. 
 Danforth v. Woods, 168. 
 Daniel v. Morrison, 153, 485. 
 Daniels v. Fitch, 458. 
 Daniels v. McGinnis, 578. 
 Daniels v. Thompson, 160. 
 Daniels v. Willard, 511. 
 Danjean v. Blacketer, 51, 53, 484. 
 Danley v. Rector, 117, 163, 241, 266. 
 Dannan v. Coleman, 292, 296. 
 Danner Land and Lumber Co. v. 
 
 Stonewall Ins. Co., 39, 41. 
 
 Danzy V. Smith, 
 
 J 
 
 447, 494- 
 
 Danzey v. Smith, 
 Darby v. Gilligan, 238. 
 Darden v. Skinner, 35, 38, 45, 49. 
 Dardenne v. Hardwick, 28, 34. 
 Dargan v. Waring, 530, 566. 
 Darling v. Hurst, 590, 593. 
 Darling v. Rogers, 376, 425. 
 Darnell v. Lewis, 202. 
 Dart V. Farmers' Bank, 206, 238. 
 Dart V. Stewart, 336. 
 Dart V. Woodhouse, 257. 
 Darvill v. Terry, 19, 196, 367. 
 
XXXll : 
 
 TABLE OF CASES CITED^ ■ 
 
 [referbnces are To pages.] 
 
 Darwin v. Handley, 48, 487. 
 Davenport v. Cummings, 17, 43; 
 
 572- 
 Davenport v. Kelly, 566. 
 Davenport Plow Works v. Ivamp, 
 
 353- 
 
 Davenport v. Wright, 44, 486, 573. 
 
 Davy V. Kelly, 446, 447. 
 
 David V. Birchard, ) 
 
 „ . , „. , •, M- 200, 271. 
 
 David V. Birckard, ) 
 
 Davidson v. Burke, 227. 
 
 Davidson y. Lanier, 330. 
 
 Davison v. Vickery, 552. 
 
 Davison v. Waldron, 515- 
 
 Davis V. Beeson, 45. 
 
 Davis V. Bruns, 534. 
 
 Davis V. Charles, 196. 
 
 Davis V. Evans, 60. 
 
 Davis V. Gibbon, 59, 499, 600. , 
 
 Davis V. Graves, 232. , 
 
 Davis V. Herrick, 294. 
 
 Davis V. Howard, 18, 231. 
 
 Davis V. Lumpkin, 475. 
 
 Davis V. McCarthy, 188, 207. 
 
 Davis V. McKinney, 230, 254, 290, 
 
 525- 
 Davis V. Mitchell, 458. 
 Davis V. NoU, 492, 493. 
 Davis V. Ransom, 47, 136, 464. 
 Davis V. Schwartz, 38, 201. 
 Davis V. Scott, 125. 
 Davis V. St. Louis, etc. Ry. Co., 353. 
 Davis S. M, Co. v. Dunbar, 39. 
 Davis V. Stern, 336, 575. 
 Davis V. Tibbets, 206, 254, 525, 
 Davis v. Turner, 9, 11, 12, 62, 63, 65, 
 
 66, 67, 68, 69, 105, 115, 116, 119. 
 Dawes V. Cope, 62, 175. 
 Dawson v. Flash, 188. 
 Dawson v. Wopd, 157. 
 Day V. Cole, 46. 
 Day V. Cooley, 336. 
 Day V. Goodbar, 39. 
 Day V. Lown, 22. 
 Day V. Washburn, 529, 564. 
 Day V. Wetherby, 238, 544. 
 Dayton v. Walsh, 261. 
 DeBardleben v. Beekman, 181, 487. 
 
 DeCamp v. Marshall, 356. 
 DeFarges v. Ryland, 586. 
 DeFord v. Nye, 188. 
 DeForrestz*. Bacon, 401, 420. 
 DeMares v. Gilpin, 560. 
 DeRuyter v. St. Peters Church, 360. 
 DeSaint Germains v. Wind, 159. 
 DeValle v. Hyland, 231. 
 DeWitt V. Van Sickle, 210, 211, 492, 
 
 499. 
 DeWolf V. Armstrong, 188. 
 D'Wolf w. Harris, 118, 167, 181, 239, 
 
 487. 
 Deakers v. Temple, 577, 582., 
 Dean v. Bailey, 262, 323. 
 Dean v. Grimes, 188. 
 Dean v. Skinner, 40, 225. 
 Dean v. Walkenhorst, 106, 147. 
 Dearing v. Watkins, 167. 
 Dearman v. Dearman, 455. 
 Dearman v. RadclifEe, 447, 460, 484. 
 Dealty v. Murphy, 452. 
 Deaver v. Savage, 354, 401. 
 Decker v. Wilson, 40. 
 Deckard v. Case, 362, 387. 
 Deeley v. Dwight, 125. 
 Deere v. Needles, 147. 
 Deering v. Cobb, 129. 
 Deering v. Collins, 189, 210, 590. 
 Delano v. Goodwin, 594. 
 Delashmut v. Frau, 258. 
 Delaware v. Ensign, 34, 35, 38, 45, 
 
 131. 135, 584- 
 Dalesdernier v. Howry, 477. 
 Delop V. Windsor, 129. 
 Detnaree v. Driskell, 254, 527. 
 Demarest v. Terhune, 57. 
 Demerritt v. Miles, 459, 584. 
 Denie v. Hart, 341. 
 Den V. Ogle, 309. 
 Dennison v. Ely, 447. 
 Dennison v. Tattersall, 293, 295. 
 Densler v. Edwards, 519, 520. 
 Dent V. Ferguson, 37. 
 Denver T. and F. W. Ry. v. Smee- 
 
 ton, 260. 
 Deposit Bank v. Barry, 516. 
 Derby v. Gallup, 31, 580, 584. 
 
TABLE OF OASES CITED. 
 
 xxxm 
 
 [rbeerencbs are to pages.] 
 
 Derby v. Weyrich, 258. 
 Derry Bank v. Davis, 379, 467. 
 Des Brisay v. Hogan, 533. 
 Descombes v. Wood, 361. 
 Desha v. Scales, 119. 
 Deshon v. Bigelow, 159. 
 Denbell v. Fisher, 316. 
 Deutsch V. Kossmeier, 548. 
 DevoU V. Brownell, 550. 
 Devon v. Watts, 208. 
 Devonshire v. Ganthreaux, 107. 
 Devries v. Phillips, 54, 200. 
 Dewart v. Clement, 144. 
 Dewey v. Adams, 386. 
 Dewey v. Bayntun, 223, 313. 
 Dewey v. Littlejohn, 48, 49, 57, 60, 
 
 137, 138, -234, 407,551- 
 Dewey v. Long, 253, 254, 289, 525. 
 Deweyjz/. Moyer, 336, 549. 
 Dewey v. Thrall, 144. 
 Dick V. Cooper, 246, 275, 277. 
 Dick V. Grissom, 35, 49, 50, 51, 58, 
 
 59. 241, 266, 267, 552. 
 Dick V. Hamilton, 255, 256, 262, 
 
 264, 288, 302, 318, 321, 327, 550. 
 Dick V. Lindsay, 170. 
 Dickenson v. Cook, 49, 171. 
 Dickerson v. Benham, 404. 
 Dickinson v. Way, 486, 607. 
 Dickinson, Expa/rte, 509, 510. 
 Dickson v. Miller, 247. 
 Dickson v. Rawson, 402, 410. 
 Diefendorf v. Oliver, 206. 
 Diggs V. McCullough, 32, 253. 
 Dietrich v. Kock, 458. 
 Dietus V. Puss, 286, 289. 
 DifEenderfer v. Fisher, 259. 
 Dikes V. Miller, 346. 
 Dilkes V. Broadmead, 305. 
 Dillard v. Dillard, 289. 
 Dillard, in re, 482. 
 Dillon V. Anderson, 596. 
 Dimon v. Delmonico, 394, 395. 
 Dimon v. Hazard, 271. 
 Dingley v. Robinson, 468, 469. 
 Divine v. Steele, 254. 
 Divverz/. McLaughlin, 25,41, 73, 95, 
 
 124, 161, 240, 487. 
 
 Dixon V. Doe, 358. 
 Dixon V. Higgins, 188. 
 Dixon V. Hill, 493, 503. 
 D'lvernois v. Leavitt, 349, 422, 423, 
 
 508. 
 Doak V. Brubacker, 165, 178. 
 Doak V. Rungan, 293. 
 Doane v. Eddy, 70, 97, 161, 163, 165, 
 
 172. 
 Dobson V. Erwin, 274, 275, 526, 556. 
 Dobson V. Kerr, 388. 
 Dobyns v. Meyer, 130. 
 Dockray v. Dockray, 438, 440. 
 Dockray v. Mason, 253, 492, 527, 
 
 543- 
 Dodd V. Adams, 479. 
 Dodd V. Bowles, 159. 
 Dodd V. Gaines, 36. 
 Dodd V. Geiger's Adm., 265. 
 Dodd V. Hills, 409. 
 Dodd V. Levy, 537. 
 Dodd z/. McCraw, 25, 29, 119, 163, 
 
 302, 556. 
 Dodge jy. Griswold, 526, 531. 
 Dodge V. Potter, 114. 
 Dodson z/.- Cooper, 45. 
 Doe V. Hurd, 586. 
 
 Doe V. Routledge, 29. 281, 284, 307. 
 Doe V. Scribner, 438, 442. 
 Doesche v. Nette, 329. 
 Dohoney v. Dohoney, 607. 
 Dold V. Geiger, 319. 
 Dolin V. Gardner, 585. 
 Dolson V. Saxton, 130. 
 Donaldson v. Johnson, 582. 
 Donegan v. Davis, 266. 
 Donley v. McKiernan, 569. 
 Donly V. Ray, 241. 
 Donnebaum v. Tiusley, 292. 
 Donnell v. Byern, 487. 
 Donnelly v. West, 540. 
 Donovan v. Dunning, 226, 545. 
 Donovan v. Gathe, 112, 147. 
 Doolittle V. Bridgenan, 253. 
 Doolittle V. Lyman, 448. 
 Doremus v. Lewis, 379, 411. 
 Doremus v. Ohio, 374. 
 Dorn V. Bayer, 54, 55. 
 
XXXIV 
 
 TABLE OP OASES OITED. 
 
 [RBFEK.ENCBS ARE TO PAGES.] 
 
 Dorr z/. Beck, 211. 
 
 Dorsey v. Banks, 121, 181. 
 
 Dorsey v. Smitlison, 447, 463, 464, 
 
 519- 
 Dortic V. Dugas, 522. 
 Doswell V. Adler, 42. 
 Doty V. Turner, 515, 516. 
 Doucet V. Richardson, 109. 
 Dougherty's, Estate, 517. 
 Dougherty v. Cooper, 192, 210. 
 Doughton V. Gray, 45, 251, 598, 607. 
 Doughty V. King, 292. 
 Doughty V. Miller, 445, 446. 
 Douglass V. Dunlap, 448, 476. 
 Douglas Mdse. Co. v. Laird, 21. 
 Douglasse v. Ward, 305. 
 Dow V. Platner, 409, 423, 424. 
 Downer v. Powell, 563. 
 Downing v. Kelly, 48. 
 Downs V. Kissam, 47, 201. 
 Doyle V. Sleeper, 253, 285, 331. 
 Doyle V. Smith, 124, 239. 
 Drake v. Rice, 252. 
 Drake v. Rogers, 345, 363, 438. 
 Drakeley v. Deforest, 354. 
 Draper v. Draper, 55, 503. 
 Dresher v. Corson, 34, 318. 
 Dreutzer v. Bell, 257, 258. 
 Dreyer v. Durand, 245. 
 Driggs V. Norwood, 286, 323. 
 Driggs V. Russell, 262. 
 Drinkwater v. Drinkwater, 447. 
 Drucker v. Wellhouse, 398. 
 Drum V. Painter, 217, 229. 
 Drummond v. Couse, 593. 
 Drury v. Cross, 199, 598, 604, 607. 
 Duberry v. Clifton, 529. 
 Dubeter v. Swartwood, 113. 
 Dubose V. Dubose, 60, 222, 339, 345. 
 Dubose V. Young, 568. 
 Dudley v. Danforth, 189, 207. 
 Duelly V. Van Houghton, 208. 
 Duf&u V. Furness, 251, 252, 527. 
 Duffy V. Insurance Co., 317, 320. 
 Dugan V. Frisler, 503. 
 Dugan V. Massey, 481. 
 Dugan V. Vattier, 493'. 
 Duggan V. Bliss, 433, 438. 
 
 Duhme v. Young, 302. 
 Dulany v. Green, 292. 
 Dunaway v. Robertson, 17, 451. 
 Dunbar v. McFall, 447, 449. 
 Duncan v. Fish, 395. 
 Duncan v, Forsyth, 274, 275. 
 Duncan v. Rosalie, 265. 
 Duncomb v. R. R., 192. 
 Dundas v. Bowler. 403, 509. 
 Dundasz/. Dntens, 232, 251, 252, 315, 
 
 527- 
 Dunham v. Byrnes, 449, 540. 
 Dunham v. Cox, 547. 
 Dunham v. Waterman, 350, 364, 
 
 373. 416, 420. 
 Dunham v. Whitehead, 221, 411. 
 Dunlap V. Bournonville, 56, 149, 
 
 173- 
 Dunlap V. Haynes, 35, 45, 52, 54, 
 
 58, 212. 
 Dunlap V. Hawkins, 302. 
 Dunlevy v. Tallmadge, 530. 
 Dunn V. Whalen, 235. 
 Dunn V. Wolf, 492. 
 Dunning v. Mead, 124, 128. 
 Dupree v. Harrington, 157. 
 Durand Organ and Piano Co., v. 
 
 Bowman, 125. 
 Duress v. Horneffer, 325. 
 Durfee v. Pavitt, 206. 
 Durham v. Shannon, 582. 
 Durkee v. Chambers, 209, 576. 
 Durkey v. Mahoney, ) 25, 35, 50, 
 Durkee v. Mahoney, ) 218, 
 
 Durousseau v. U. S. 10. 
 Duryee v. Botsford, 464. 
 Dutcher v. Swartwood, 138. 
 Dutertre v. Driart, 515. 
 Duvall V. Raisin, 341, 354, 394. 
 Duvall V. Rollins, 481. 
 Duvall V. Waters, 35, 49, 50, 52, 55, 
 
 58, 476. 
 Dright V. Brown, 568, 586. 
 Dwinel v. Perley, 478. 
 Dyer V. Balsley, iii. 
 Dyer v. Homer, 457, 458. 
 Dyer v. Rosenthal, 200. 
 Dyer v. Taylor, 36, 53, 560. 
 
TABLE OF OASES CITED. 
 
 XXXV 
 
 [rbferbnces arb to pagbs.] 
 
 Dygert v. Remerschnider, 231, 279, 
 
 3I5> 317- 
 Eads V. Thompson, 36. 
 Bagan v. Downing, 294. 
 Earl's, Appeal, 515, 516. 
 Earl V. Champion, 324. 
 Earnshaw v. Stewart, 42. 
 Easley v. Dye, 568. 
 East India Co. v. Clavell, 497, 505. 
 Eastman v. M'Alpin, 552. 
 Eastman v. Schettler, 475, 476. 
 Eastwood V. Brown, 92, 105, 120. 
 Eaton V. Campbell, 483. 
 Eaton V. Cooper, 464, 578. 
 Eaton V. Patterson, 187. 
 Eaton V. Perry, 15, 221, 229. 
 Eaton V. White, 465. 
 Eberle v. Mayer, 515. 
 Ecker v. I,afferty, 506. 
 Eckfeldt V. Frick, 149. 
 Eckman v. Munnerlyn, 123, 128. 
 Eddins V. Wilson, 448. 
 Eddy V. Baldwin. 297. 
 Ede V. Knowles, 334. 
 Edelin v. Edelin, 323. 
 Edgar v. Clevenger, 529, 538. 
 Edgell V. Bennett, 580. 
 Edgell V. Hart, 124, 132. 
 Edgell V. Lowell, 213. 
 Edgerly v. Bank, 114. 
 Edgerly v. First Nat. Bank, 40. 
 Edginton v. Williams, 552. 
 Edmeston' z/. Lyde, 541, 542, 544, 
 
 565- 
 Edmondson v. Hyde, 611. 
 Edmonson Meacham, 482. 
 Edmunds v. Mister, 298, 538, 571. 
 Edrington v. Rogers, 200, 208. 
 Edward's Appeal, 160. 
 Edwards v. Coleman, 539. 
 Edwards v. Currier, 29. 
 Edwards v. Dickson, no. 
 Edwards v. Harben, 61, 86, 87, 88, 
 
 89, 91, 92, 180, 519. 
 Edwards v. Haverstick, 446. 
 Edwards v. M'Gee, 500. 
 Edwards v. Mitchell, 341, 438. 
 Edwards v. Reid, 211. 
 
 Edwards v. Rogers, 552. 
 
 Edwards v. Stinson, 225. 
 
 Edwards v. Symons, 126. 
 
 Eeley v. Faith, 324. 
 
 Effinger v. Hall, 560. 
 
 Egberts v. Wood, 364. 
 
 Egery v. Johnson, 228. 
 
 Ehrisman v. Roberts, 20. 
 
 Eicks V. Copeland, 371, 379, 421, 
 
 423- 
 Eigleberger v. Kibler, 300, 330, 507, 
 
 538, 558. 
 Eiler V. CruU, 253. 
 Eilers v. Conradt, 255. 
 Einstein v. Munnerlyn, 34. 
 Einstein v. Shouse, 351. 
 Eldred, In re, 262. 
 Elerick v. Braden, 21. 
 Elfelt V. Hinch, 302. 
 Elias V. Farley, 407. 
 Eliot V. Merchant's Exchange, 250. 
 EUinger v. Crowl, 287, 302, 321, 589. 
 Ellington V. Currie, 451. 
 Elliott's Appeal, 248, 251. 
 Elliot V. Bentley, ) 
 Elliott V. Bently, ) ^'^'^' ^ ^• 
 Elliott V. Horn, 448. 
 Elliott V. Stevens, 238. 
 Elliott V. Stoddard, 574, 590. 
 Ellis, ex parte, 34. 
 Ellis V. Higgins, 458. 
 Ellis V. McBride, 448. 
 Ellis V. Valentine, 18, 45. 
 Elmer v. Welch, 151. 
 Elmes V. Sutherland, 48, 137, 339, 
 
 345. 346. 
 Elser V. (jraber, 21, 200, 217. 
 Elwell V. Walker, 299, 301, 302. 
 Ely V. Carnley, 60. 
 Ely V. Cook, 380, 382, 413. 
 Ely V. Hair, 355, 363, 410, 411, 419. 
 Embry v. Clapp, 401. 
 Embry v. Klemm, 53, 57. 
 Emenck v. Harlan, 402. 
 Emerson v. Bemis, 297. 
 Emerson v. Knower, 354. 
 Emerson v. Senter, 364. 
 Emery v. Vinall, 283, 506. 
 
XXXVl 
 
 TABLE OF CASES CITED. 
 
 [referbncbs are to pages.] 
 
 Emmons v. Bradley, 42. 
 Empringham v. Short, 503. 
 Enders v. Swayne, 24, 33, 35,43. Si. 
 
 52, 55. 57. 553- 
 Enders v. Williams, 163, 290. 
 England v. Insurance Co., 149. 
 England v. Reynolds, 354, 355, 421. 
 Englar v. OfEutt, 353. 
 Englebert v. Blanjot, 484, 539. 
 Engles V. Marshall, 142. 
 English V. Freedman, 578. 
 English V. King, 52, 53, 57. 
 Engraham v. Pate, 583. 
 Ensworth v. King, 196, 516. 
 Emporia First Nat. Bank v. Ride- 
 
 nour, 189. 
 Ephraim v. Kelleher, 125, 132. 
 Epparson v. Young, 458. 
 Eppes V. Randolph, 12, 13, 306. 
 Eppwright V. Nickerson, 361. 
 Erb V. Cole, 257. 
 Erdall t). Atwood, l8g, 209. 
 Erdhouse v. Hickenlooper, 212. 
 Erfort V. Consalus, 545, 583. 
 Erickson v. Quinn, 548, 559, 560, 
 
 566, 567. 
 Erskine v. Decker, 491. 
 Eskridge v. Abrahams, 214. 
 Eslow V. Mitchell, 464. 
 Esterbrook v. Messersmith, 484, 488. 
 Estes & Carter, in re, 475. 
 Estes V. Gunter, 407. 
 Estes V. Wilson, 536. 
 Estwick V. Cailland, 401, 405, 411. 
 Esty V. Aldrich, 245. 
 Esty V. Long, 466, 570, 571. 
 Etchpare v. Aguirre, 149. 
 Etheridge v. Sperry, no, 113, 12?, 
 
 125, 127, 128, 131, 135 
 Eubanks v. Dobbs, 447. 
 Evans v. Chapin, 356. 
 Evans v. Dunkelberger, 508. 
 Evans v. Hamilton, 548. 
 Evans v. Herring, 465. 
 Evans V. Hill, 536. 
 Evans v. Jones, 401. 
 Evans V. Lamar, 345. 
 Evans V. Lewis, 330, 506. 
 
 Evans V. Matson, 577. 
 
 Evans V. Neale's, 207, 498. 
 
 Evans V. Rugee, 21. 
 
 Evans v. Scott, 163. 
 
 Evelejgh v. Purrsford, 29, 40, 53, 
 
 92, 105, irg, 121, 187, 223. 
 Everett v. Raby, 253. 
 Everett v. Read, 269, 292, 447. 
 Everett v. Walcott, 341. 
 Every v. Edgerton, 182, 585. 
 Ewing V. Cantrell, 255. 
 Ewing V. Cargill, 48, 120, 491. 
 Ewing V Cook, 473, 474. 
 Ewing V. Gray, 20, 266, 274, 275. 
 Ewing V. Merkley, 147. 
 Ewing V. Patterson, 548. 
 Ewing V. Runkle, 20, 189, 206. 
 Exton V. Scott, 196. 
 Eyre v. Beebe, 366, 377, 388, 399, 
 
 400, 425, 427, 557. 
 Eyre v. Eyre, 451. 
 Eyrick v. Hetrick, 463. 
 Fairbanks v. Benjamin, 506. 
 Fairbanks v. Blackington, 461. 
 Fairbanks v. Bloomfield, 165, 507, 
 
 509. 
 Fairbanks v. Eureka Co., 158. 
 Fairbairn v. Middlemiss, 36. 
 Fairchild v. Gwynne, 356. 
 Fairchild v. Hunt, 407. , 
 
 Fairfield v. Baldwin, 486, 518. 
 Falconer v. Freeman, 531. 
 Falconer v. Jones, 446, 517. 
 Fales V. Thompson, 505. 
 Fall River Iron Works Co. v. 
 
 Croade, 510. 
 Fanshawe v. Lane, 396. 
 Fant V. Elsbury, 359. 
 Fargerson v. Hall, 216. 
 Fargo V. Ladd, 460. 
 Farguson v. Johnston, 39. 
 Faringer v. Ramsay, 288, 585, 593. 
 Farmer v. Calvert, 57, 591. 
 Farmers' Bank v. Cowan, 136. 
 Farmers' Bank v. Douglass, 33, 47, 
 
 48, 57, 124, 137, 208, 211, 217, 
 
 495. 576. 
 Farmers' Bank v. King, 353. 
 
TABLE OF OASES CITED. 
 [references are to pages.] 
 
 XXXV-ll 
 
 Farmers' Bank v. Long, 318, 321, 
 
 327, 598- 
 Farmers' and Merchants' Bank v. 
 
 Price, 21. 
 Farmers' National Bank v. Teeter, 
 
 497- 
 Farned v. Harris, 534. 
 Farnsworth v. Bell, 49, 52, 58, 493, 
 
 502, 506, 582. 
 Farnsworth v. Shepard, 142. 
 Farnsworth v. Strasler, 534. 
 Farquharson v. Eichelberger, 358, 
 
 418, 421, 441, 442. 
 Farquharson v. McDonald, 346, 409, 
 
 413. 414, 417- 
 Farrar v. Haselden, 537. 
 Farrellz). Duffy, 451. 
 Farrin v. Crawford, 409. 
 Farringer v. Ramsay, 253. 
 Farrington v. Caswell, 69, 120, 171. 
 Farrington v. Sinclair, 515, 517. 
 Farrow v. Hayes, 24. 375. 
 Farrow v. Teackle, 253. 
 Farwell v. Cohen, 383. 
 Farwell v. Howard, 374. 
 Farwell v. Maxwell, 410. 
 Farwell v. Nilson, 184. 
 Fassett v. Phillips, 442. 
 Fast V. McPherson, 460. 
 Faulkner v. Waters, 246. 
 Faunce v. Lesley, 222. 
 Fawcettz/. Fawcett, 557. 
 Feagan v. Cureton, 568, 571. 
 Fearn v. Ward, 21, 248, 50.1. 
 Fechheimer v. Hollander, 532, 533, 
 
 535- 
 Fecheimer v. Robertson, 374. 
 Feers v. Lyon, 385. 
 Feigley v. Feigley, 46, 500, 502, 552. 
 Fermester v. Mc Rohrie, 342, 585. 
 Pelder v. Harper, 587. 
 Fell, Ex parte, 271. 
 Feller v. Alden, 261, 262, 263. 
 Fellows V. Commercial Bank, 507. 
 Fellows V. Emperor, 237, 587. 
 Fellows V. Fellows, 545. 
 Fellows V. Greehleaf, 342, 344, 
 
 Fellows V. Lewis, 225, 525, 6ii. 
 Fellows V. Smith, 293. 
 Felner v. Wilson, 125, 127. 
 Felton V. Wadsworth, 44, 486. 
 Felton V. White, 57. 
 F'enton v. Ham, 457. 
 Fenwick v. State, 594. 
 Ferbrache v. Martin, 575. 
 Ferguson v. Bobo, 529. 
 Ferguson v. Clifford, 509, 512, 585. 
 Ferguson v. Furnace Co., 233. 
 Ferguson v. Gilbert, 585. 
 Ferguson v. Hillman, 561. 
 Ferguson v. Kumler, 189, 257, 570, 
 
 571- 
 Ferrall v. Farnen, 371. 
 Ferrars v. Cherry, 313. 
 Ferris v. Irons, 20S, 572. 
 Ferson v. Monroe, 238. 
 Fetrow v. Merriwether, 461. 
 Fetter v. Cirode, 41, 508, 539. 
 Fetters v. Duvernois, 39. 
 Feurt V. Powell, 167. 
 Feurt V. Rowell, 60. 
 Ficklin v. Rixey, 321. 
 Fiedler v. Day, 392i 486, 553. 5^6. 
 Field V. Chapman, 535. 
 Field, Ex parte, ;ii^. 
 Field V. Liverman, 513. 
 Field V. Ridgeley, 39. 
 Fields V. Sands, 564, 565. 
 Fietsam v. Hay, 360. 
 Fifield V. Gaston, 206, 590, 593, 
 
 596- 
 Filebeck v. Bean, 126. 
 Filley v. Register, 301, 589, 591. 
 Findlay v. Hosmer, 394. 
 Findlay «. Cooley, 457. 
 Finlay v. Dickerson, 413, 414, 418, 
 
 426, 427. 
 Finley v. McConnell, 461. 
 First Nat. Bank v. Anderson, vhq, 
 
 138. 
 First Nat'l Bank v. Bertschy, 231, 
 
 236, 282, 607. 
 First Nat. Bank v. Brown, 114. 
 First Nat'l. Bank v. Comfort, 40. 
 
XXXVlll 
 
 TABLE OF OASES OITED. 
 
 [rbferbncbs are to PAGBS.] 
 
 First Nat'l. Bank v. Dwelley, 231. 
 First Nat'l. Bank v. Hughes, 349, 
 
 419, 508. 
 First Nat. Bank v. Hummel, 353. 
 First Nat'l. Bank v. Irons, 206. 
 First Nat'l. Bank v. JafEray, 39. 
 First Nat'l. Bank v. Lowrey, 109, 
 
 IIS, 189. 
 First Nat'l. Bank v. Mofiatt, 58. 
 First Nat'l. Bank v. Myers, 235. 
 First Nat'l. Bank v. Naill, 188. 
 First Nat'l. Bank v. North, 188, 259. 
 First Nat'l. Bank v. Ridenour, 34. 
 First Nat'l. Bank v. Wittich, 128. 
 First Nat'l. Bank of Chicago v. No. 
 
 Wis. Lumber Co., 185. 
 First Nat'l. Bank v. Kansas Cy. 
 
 Lime Co., 223. 
 First Nat'l. Bank of Sturgis v. Buck, 
 
 20. 
 Pish V. Chester, 594. 
 Fishburne v. Kunhardt, 120, 476, 
 
 509. 
 Fishel V. Ireland, 36, 208. 
 Fisher's, Appeal, 477. 
 Fisher v. Dinwiddle, 401. 
 :pisher v. Hall, 209, 210. 
 Fisher v. Henderson, 226. 
 Fisher v. Lewis, 294, 327, 328, 563. 
 Fisher v. Shelver, 45, 318. 
 Fisher v. Syphers, 126. 
 Fisher v. True, 577, 585, 589. 
 Fiske V. Carr, 342, 469. 
 Fister v. Beall, 113. 
 Fitch V. Boyer, 569. 
 Fitch V. Burk, 173, 175. 
 Fitler v. Maitland, 169, 386, 387. 
 Fitzer v. Fitzer, 317. 
 Fitzgerald v. Forristal, 459. 
 Fitzgerald v. Gorham, 140. 
 Fitzhugh V. Anderson, 246. 
 Fitzpatrick v. Borbridge, 265. 
 Flack V. Charron, 272. 
 Flagg V. Willington, 577. 
 Flanagan v. Wood, 147, 151, 178. 
 Flanders v. Jones, 478. 
 Flanigan v. Lampman, 372, 387, 583. 
 
 Flannery v. Van Tassel, 234. 
 Fleischer v. Dignon, s8, 236. 
 Fleming v. Grafton, 492, 498, 529, 
 
 , 532- 
 Fleming v. Hiob, 34, 58. 
 Fleming v. Weagley, 190. 
 Fletcher v. Fletcher, 451, 454, 455- 
 Fletcher v. Martin, 21, 128, 135. 
 Fletcher v. Pillsbury, 246. 
 Fletcher v. Powers, 124, 129. 
 Fletcher z/. Sidley, 252, 253. 
 Fletcher v. Willard, 42. 
 Flewellen v. Crane, 547. 
 Flick V. Devries, 324. 
 Fling V. Goodall, 233. 
 Flint V. Clinton Co., 357, 360, 427. 
 Flood V. Prettyman, 24. 
 Florence S. M. Co. v. Zeigler, 207, 
 
 212. 
 Flournoy v. Flournoy, 323. 
 Flower v. Cornish, 484. 
 Floyd V. Goodwin, 53, 120, 170, 187, 
 
 196, 273. 486, 590. 
 Floyd V. Smith, 402, 410. 
 Fluharty v. Beatty, 455. 
 Flynn v. Williams, 336, 480. 
 Foley V. Bitter, 372, 408, 442. 
 Foley V. Foley, 43. 
 Follett V. Wesley, 197. 
 Folsom V. Clemence, 39. 
 Fonda v. Gross, 69, 120. 
 Fones v. Rice, 292, 497. 
 Foote V. Cobb, 290, 502, 580. 
 Forbes Wm. D., In re, 137. 
 Forbes v. Howe, 202. 
 Forbes v. Logan, 387, 531. 
 Forbes v. Marsh, 158, 245. 
 Forbes v. Scannell, 347, 350, 354, 
 
 356, 358, 362, 363, 387, sii. 
 Forbes v. Waller, 533, 583, 584. 
 Forbush v. Williams, 237. 
 Ford V. Aikin, 246. 
 Ford V. Caldwell, 222, 335. 
 Ford ». Chambers, 173, 597. 
 Ford V. Harrington, 453. 
 Ford V. Johnson, 36, 608. 
 Ford V. Johnson, 506, 612. 
 
TABLE OP CASES CITED. 
 
 XXXIZ 
 
 [rbfbrences arb to PAGBS.] 
 
 Ford V. Stuart, 305, 308. 
 Ford V. Williams, 47, 136, 188, 189, 
 198, 204, 209, 214, 216, 577, 582. 
 Fordy v. Exempt Fire Co., 448. 
 Forrest v. Camp, 275, 492. 
 Forsyth v. Matthews, 33, 37, 53, 57, 
 
 145- 
 Fort Paype Furnace Co. v. Fort 
 
 Payne Coal and Iron Co., 547. 
 Fort Payne Furnace Co. v. Coal and 
 
 Iron Co., 547. 
 Foster Wm. A. In re, 135. 
 Foster s. Foster, 503. 
 Foster v. Grigsby, 57, 200, 211, 606. 
 Foster V. Hall, 575, 585, 590. 
 Foster v. Hiegh, i8i. 
 Foster ». Knowles, 40, 253, 255. 
 Foster v. Libby, 409. 
 Foster 0. McGregor, 153, 257, 611. 
 Foster v. Mansfield, 558, 559. 
 Foster v. MuUanphy Mill Co., 192. 
 Foster v. MuUanphy Planing Mills 
 
 Co., 360. 
 Foster v. Pugh, 45, 120. 
 Foster v. Reynolds, 239. 
 Foster v. Saco Manuf. Co., 138, 341, 
 
 420. 
 Foster v. Singer, 260. 
 Foster v. Thompson, 590. 
 Foster v. Wallace, 519, 568, 580. 
 Foster v. Walton, 448. 
 Foster v. Woodfin, 43, 58, 582. 
 Fougeres v. Zacharie, 53. 
 Fouke V. Fleming, 339. 
 Foulk V. McFarlane, 275, 277, 467, 
 
 473- 
 Fowler's, Appeal, 522. 
 Fowler v. Frisbie, 502, 506. 
 Fowler v. Lee, 461. ' 
 
 Fowler v. McCartney, 526. 
 Fowler v. Stoneum, 448. 
 Fox V. Adams, 443, 509. 
 Fox V. Davidson, 125, 127. 
 Fox V. Heath, 364, 399. 
 Fox V. Hills, 9, 502. 
 Fox V. Moyer, 280, 530, 543. 
 Fox V. Peek, 253. 
 Fox V. Wallace, 554. 
 
 Fox V. Willis, 466. 
 
 Fox V. Zimmerman, 559. 
 
 Foxley, Bx parte, 34. 
 
 Frakes v. Brown, 503, 540. 
 
 Francis v. Hertz, 438. 
 
 Francis v. Lawrence, 531. 
 
 Francis v. Rankin, 189. 
 
 Francis v. Wilkinson, 447. 
 
 Frank's, Appeal, 306. 
 
 Frank v. Humphrey, 190. 
 
 Frank v. Kessler, 302. 
 
 Frank v. Levie, 11. 
 
 Frank w. Miner, 113. 
 
 Frank v. Morehead, 397. 
 
 Frank v. Peters, 11, 206, 272. 
 
 Frank v. Robinson, 131, 387. 
 
 Frank v. Welch, 188. 
 
 Frankhouser v. EUett, 29, 113, 137. 
 
 Franklin v. Claflin, 223. 
 
 Franklin v. Stagg, 451. 
 
 Fraser v. Passage, 207. 
 
 Frasier v. Frasier, 517. 
 
 Frazer v. Thatcher, 197. 
 
 Frazer v. Thompson, 305, 311. 
 
 Frazer v. Western, 494, 536. 
 
 Frazier v. Fredericks, 358, 509. 
 
 Frederick v. Allgaier, 210. 
 
 Freeburger's, Appeal, 513, 514. 
 
 Freehling v. Bresnahan, 258. 
 
 Freeland v. Freeland, 478. 
 
 Freelander v. Holloman, 540. 
 
 Freelove v. Cole, 453. 
 
 Freeman v. Burnham, 21, 269, 282, 
 
 293. 333. 447, 511- 
 Freeman v. Orser, 265. 
 Freeman v. Pope, 21, 248, 249, 251, 
 
 281, 282, 301, 334. 
 Freeman v. Rawson, 135. 
 Freeman v. Sedgwick, 446, 450. 
 Freiburg v. Langfelder, 45. 
 Freiburg v. Magale, 126. 
 Freishenmeyer v. Lehmkuhl, 188. 
 French v. Briedelman, 479, 600. 
 French v. French, 210, 282, 293, 
 
 299, 471, 489. 
 French v. Hall, 143, 507. 
 French v. Holmes, 290, 303, 506. 
 French v. Lovejoy, 364, 397, 399. 
 
xl 
 
 TABLE OF OASES CITED. 
 
 [references are to pages.] 
 
 French v. Mehan, 466. 
 French v. Motley, 191, 231. 
 Frenzel v. Miller, 462. 
 Freund v. Yaegerman, 185. 
 Frey v. Hamson, i8g. 
 Friedman v. Fennell, 248. 
 Friedenwald v. MuUan, 491, 551. 
 Frink v. Buss, 378, 379, 383. 
 Frisbey v. Thayer, 464. 
 Frisk V. Reigelman, 51, 209. 
 Fromme v. Jones, 187, 188. 
 Frost V. Goddard, 466. 
 Frost V. Mott, 60, 464. 
 Frost V. Rosecrans, 594. 
 Frost V. Warren, 43, 135. 
 Frost V. Willard, 246. 
 Frost V. Wolf, 557. 
 Frow V. Smith, 339. 
 Fryer v. Bryan, 486, 606. 
 Fuchheimer v. Baum, 221. 
 Fulkerson v. Sappington, 492. 
 Fuller V. Acker, 26. 
 Fuller V. Bean, 500. 
 
 Fuller V. Brewster, 36, 46, 49, 122. 
 
 Fuller V. Brown, 37. 
 
 Fuller V. Croco, 190. 
 
 Fuller V. Griffith, 40. 
 
 Fuller V. Ives, 369. 
 
 Fuller V. Sears, 213, 465. 
 
 Fullerton v. Viall, 561, 576, 600. 
 
 FuUington v. Northwestern I. and 
 B. Ass'n, 28. 
 
 FuUington v. Northwestern I. and 
 B. A. 332. 
 
 Fulmore v. Burrows, 55, 112. 
 
 Fulton V. Fulton, 301. 
 
 Fulton V. Woodman, 274, 550. 
 
 Funk V. Ehrman, 127. 
 
 Funk ». Staats, 152, 155, 196. 
 
 Furman v. Fisher, 343, 347. 
 
 Furman v. Tenny, 258. 
 
 Furness v. Ewing, 470. 
 
 Furth V. Snell, 188 
 
 Fury V. Kempin, 491. 
 
 Fury V. Strohecker, 479. 
 
 Furze v. Strohecker, 479. 
 
 Gable v. Williams, 349. 
 
 Gabler v. Boyd, 494. 
 
 Gadsden v. Carson, 399, 439- 
 
 Gaffney v. Signaigo, 42. 
 
 Gage V. Dauchy, 262, 263, 264. 
 
 Gage V. Gage, 451. 
 
 Gage V. Parry, 374. 
 
 Gainer v. Providence Nat. Bank, 
 
 191. 
 Gaither v. Mumford, 39, 42, 156J 
 
 166. 
 Galbraith v'. Cook, 217, 586. 
 Galbreath v. Cook, 311. 
 Gale V. Gale, 308. 
 Gale V. Mensing, 344. 
 Gale V. Williamson, 281, 285, 293, 
 
 588. 
 Gallagher v. Rosenfield, 129. 
 Galle V. Tode, 272. 
 Gallego V. Gallego, 319. 
 Galliher v. Cadwell, 558. 
 Gallman v. Perrie, 231, 540. 
 Galloway v. People's Bank, 188, 221, 
 
 547- 
 Gait V. Dibrell, 27, 60, 347, 405, 485. 
 Gait V. Jackson, 451. 
 Games, Ex parte, 34, 37, 184, 197. 
 Gamber v. Gamber, 324. 
 Gamble v. Harris, 36, 210, 212. 
 Gamble v. Johnson, 207, 280, 553, 
 
 568, 574, 580. 
 Gannard v. Eslava, 290, 501, 505, 
 
 541- 
 Gans V. Renshaw, 200. 
 Garahay v. Bayley, 211. 
 Garbutt v. Smith, 479. 
 Gardinier v. Tubbs, 69, 120, 180. 
 Gardiner Bank v. Hogdeu, 50. 
 Gardiner Bank v. Wheaton, 24, 45, 
 
 252, 253, 526, 608. 
 Gardinier v. Otis, 57, 208. 
 Gardiner v. Sherrod, 523. 
 Gardner v. Adams, 97, 163. 
 Gardner v. Baker, 292, 507. 
 Gardner z;. Broussard, 52. 
 Gardner v. Cole, 8. 
 Gardner v. Commercial Bank, 21, 
 
 380, 419, 508. 
 Gardner v. Rowland, 175. 
 Gardner v. Johnson, 137. 
 
TABLE OP CASES CITED. 
 
 xli 
 
 Treferbncbs are To pages.] 
 
 Gardner v. McEwen, 35, 130, 134, 
 
 135- 
 Gardner v. Painter, 316. 
 Gardner v. Stell, 461. 
 Gardner v. Webber, 239. 
 Gardner Nat'l Bank v. Hagar, 199. 
 Gardom v. Woodward, 594, 595. 
 Garesche v. McDonald, 210. 
 Garden v. Bodwing, 124, 132. 
 Garfield v. Hatmaker, 254, 525. 
 Garland v. Chambers, 120. 
 Garland v. Garland, 244. 
 Garland v. Rives, 33, 37, 58, 202, 
 
 203, 275, 492, 568, 570, 571, 598, 
 
 606. 
 Garmau v. Cooper, 155. 
 Garner v. Frederick, 379, 409. 
 Garner v. Graves, 448, 581. 
 Garner v. Wright, 126. 
 Garuons v. Knight, 567. 
 Garr v. Hill, 196. 
 Garretson v. Brown, 540. 
 Garretson v. Kane, 15, 234, 267. 
 Garrett v. Burlington Plow Co., 192. 
 Garrett z/. Hughlett, 114. 
 Garrett v. Maunheimer, 594. 
 Garrett v. Rhame, 170, 254, 525. 
 Garriques v. Harris, 568, 572. 
 Garrison v. Brice, 448. • 
 
 Garrison v. Monagan, 250. 
 Garrity v. Haynes, 232. 
 Gary v. Colgin, 187, 488. 
 Gasherie v. Apple, 404. 
 Gasper v. Bennett, 538. 
 Gassett v. Grout, 319. 
 Gassett v. Wilson, 19, 196. 
 Gates V. Andrews, 348,349, 362,422, 
 
 557- 
 Gates V. Boomer, 530. 
 Gates V. Fabin, 314. 
 Gates V. Gaines, 170. 
 Gates V. Gates, 466. 
 Gates V. Johnson, 486. 
 Gates V. Labeaume, 342, 365, 370, 
 
 371,408,421,430. 585- 
 Gault V. Saflan, 324. 
 Gauss V. Doyle, 127. 
 
 Gay V. Pidwell, 124. 
 
 Gaylor v. Harding, 127, 165, 173, 
 
 485- 
 Gaylord z^.. Couch, 251, 450, 538. 
 Gaylords v. Kelshaw, 543. 
 Gazzam v. Poyntz, 390, 391, 
 Gear v. Shrei, 252. 
 Gebhard v. Sadler, 459, 460. 
 Gebhart v. Merfield. 208. 
 Geiger v. Welsh, 226. 
 Geigler v. Maddox, 25. 
 Geisse v. Beal, 347, 468, 469, 474. 
 Geist V. Geist, 242, 517. 
 Gentry v. Harper, 254, 527. 
 Gentry v. Robinson, 206. 
 George v. Kimball, 411, 491. 
 George v. Milbanke, 256, 284, 288, 
 
 497, 498. 
 George v. Tufts, 160. 
 George v. Williamson, 447. 
 Geo. F. Smith Co. v. McGroarty, 
 
 192. 
 Geortner v. Canajoharie, 238. 
 Gerald v. Gerald, 190. 
 Gere v. Dibble, 542. 
 Gere v. Murray, 22, 23, 25, 370, 372, 
 
 400, 420. 
 German Insurance Bank v. Nunes, 
 
 26. 
 German Nat. Bank v. Leonard, 27. 
 Germania Fire Ins. Co. v. Stone, 
 
 594. 
 Gerrard v. Lauderdale, 347. ■ 
 Gerrish v. Mace. 22, 540. 
 Getzler v. Saroni, 447, 482, 503, 534, 
 
 611. 
 Ghio V. Byrne, 126. 
 Ghormley v. Smith, 219, 244. 
 Gibbons v. Peeler, 447. 
 Gibbons v. McDonald, 188. 
 Gibbons v. Pemberton, 531, 546. 
 Gibbs V. Chase, 476. 
 Gibbs V. Glamis, 347. 
 Gibbs V. Neely, 273, 276, 578. 
 Gibbs V. Parsons, 125. 
 Gibbs V. Parsons, 130. 
 Gibbs V. Patten, 482. 
 
xlii 
 
 TABLE OF OASES CITED. 
 
 [rbfbrences are to pages.] 
 
 Gibbs V. Thayer, 449, 478. 
 
 Gibbs V. Thompson, 35, 42, 43, 4,9 
 
 50, 51, 55. 58, 59- 
 Gibson v. Bennett, 306. 
 Gibson v. Chedie, 347. 
 Gibson v. Goldthwaite, 361. 
 Gibson v. Hill, 37, 45, 58, 118. 
 Gibson v. Hough, 42. 
 Gibson v. I^ove, 25, 94, 106, 162, 
 
 180, 501. 
 Gibson v. Rees, 347. 
 Gibson v. Seymour, 42, 182, 233. 
 Gibson v. Trowbridge, 194. 
 Gibson v. Walker, 196, 413. 
 Gicker v. Martin, 318, 323,486. 
 Giddings v. Sears, 184, 189, 199. 
 Gifford V. Ford, 446, 458, 459. 
 Gilbert v. McCorkle, 185. 
 Gilbert v. Stockman, 447, 532. 
 Gilham v. Locke, 234, 235, 237. 
 Gilkerson Sloss Com. Co. v. Carnes, 
 
 188. 
 Gill V. Griffith, 113. 
 Gilleland v. Rhoads, 259. 
 Gillespie v. Cooper, 40. 
 Gillespie ®. Gillespie, 447, 458. 
 Gillespie v. Miller, 263. 
 Gillett V. Bate, 601. 
 Gillett V. Phelps, 48, 575. 
 Gillette v. Stoddard, 107. 
 Gilmer v. Earnhardt, 417, 421, 423. 
 Gilmore v. Bangs, 462. 
 Gilmore v. N. A. Land Co., 290. 
 Gimmell v. Adams, 421, 431. ' 
 Girard v. Mazier, 504. 
 Gistf. Pressley, 119, 165, 166, 167. 
 Given v. Gordon, 402. 
 Glaister v. Hewer, 252, 253, 288. 
 Glann v. Younglove, 261. 
 Glanz V. Gloeckler, 249. 
 Glasgow V. Turner, 241. 
 Glass V. Former, 318, 607. 
 Glass V. Hulbert, 315. 
 Glasscock v. Batton, 103, 168. 
 Glassner v. Wheaton, 461, 480. 
 Glave V. Wentworth, 465. 
 Glaze V. Blake, 265, 582. 
 Gleasou v. Day, 182, 233. 
 
 Gleason v. Wilson, 125, 129. 
 
 Gleises v. McHatton, 474. 
 
 Glenn v. Glenn, 33, 35, 36, 50, 52, 
 
 54. 58. 
 Glenn v. Grover, 50, 187, 188, 200, 
 
 204, 217, 550, 552. 553, 581, 585, 
 
 593- 
 Glenn v. Randall, 43, 207, 224, 551, 
 
 552. 585. 587- 
 Gleny v. Langdon, 540. 
 Glidden v. Taylor, 262, 263. 
 Globe Iron Co., v. Thatcher, 407. 
 Glover v. Allen, 246. 
 Godbold V. Lambert, 526. 
 Godchaux v. Mulford, 144, 149, 221. 
 Goddard v. Hapgood, 396, 412, 416, 
 
 606. 
 Goddard v. Jones, 125. 
 Goddard v. Sawyer, 239. 
 Goddard v. Winthrop, 511. 
 Godden v. Crowhurst, 245. 
 Godding v. Brackett, 252, 254, 525. 
 Godell V. Taylor, 292. 
 Godfrey v. Germain, 31, 37, 55. 
 Godfrey v, Miller, 51. 
 Goembell v. Arnett, 271. 
 Goff V. Dabbs, 270. 
 GofE V. Nuttall, 330. 
 GofE V. Rogers, 43, 231. 
 Golden v. Cockrill, 509. 
 Goldsbury v. May, 53, 141, 164. 
 Goldsmith v. Russell, 230, 539, 567. 
 Goll and Prank Co. v. Miller, 39. 
 Gollober v. Martin, 210. 
 Gooch's Case, 9, 474, 503, 525. 
 Goodale v. Nichols, 491. 
 Goodbar v. Locke, 18 
 Goodenough v. Spencer, 211, 453. 
 Coodgame v. Cole, 568, 574, 582, 
 
 585. 
 Goodheart v. Johnson, 41, 43, 136, 
 
 137- 
 Goodhue v. Berrien, 200, 487. 
 Goodnow V. Smith, 568. 
 Goodrich v. Downs, 22, 373, 375, 410, 
 
 488. 
 Goodrich v. Treat, 248. 
 Goodrich v. Williams, 128. 
 
TABLE OF CASES CITED. 
 
 xliii 
 
 [references arb to pages.] 
 
 Goodson V. Jones, 284, 288. 
 Goodwin v. Goodwin, 274. 
 Goodwin v. Hamill, 197. 
 Goodwin v. Hammond, 605. 
 Goodwin v. Hubbard, 254. 
 Goodwin v. Kelly, 177. 
 Goodwin v. Sharkey, 539. 
 Goodwin v. Snyder, 210. 
 Goodwyn v. Goodwyn, 163, 458. 
 Goodyear Rubber Co. v. George D. 
 
 Scott Co., 194. 
 Googins V. Gilmore, 48, 239. 
 Gordan v. Cannon, 351, 354, 362, 
 
 387. 397. 424, 427, 438, 439. 441. 
 
 442. 443- 
 Gordon v. Clapp, 199, 457. 
 Gordon v. Coolidge, 346, 358. 
 Gordon v. Haywood, 491. 
 Gordon v. Lowell, 52, 57, 254, 527. 
 Gordon v. Preston, 192. 
 Gordon v. Reynolds, 40. 
 Gordon v. Worthley, 312. 
 Gore V. Clisby, 341, 342. 
 Gore V. Waters, 319. 
 Gorham v. Herrick, 233. 
 Gorham v. Innis, 184. 
 Gormerly v. Chapman, 538. 
 Gormley v. Potter, 526, 538. 
 Goshorn v. Snodgrass, 54, 58, 492. 
 Goss V. Cahill, 265. 
 Goss V. Neale, 422. 
 Gost V. Heidelberg, 292. 
 Gottberg v. O'Connor, 212. 
 Gottlieb V. Miller, 191. 
 Gottlieb V. Thatcher, 56. 
 Goudy V. Gebhart, 457, 458. 
 Gough V. Everard, 113. 
 Gough V. Henderson, 253. 
 Gould V. Emerson, 250. 
 Gould V. Huntley, 112, 148. 
 Gould z-. Little Rock M. R. T. Ry., 
 
 192. 
 Gould V. Steinburg, 540. 
 Gould V. Ward, 38. 
 Goumans v. Boomhower, 257. 
 Gove V. Lawrence, 336. 
 Governor v. Campbell, 371, 585. 
 Gowan v. Gowan, 456. 
 
 Gowen v. Gowen, 268. 
 Gowing V. Rich, 252, 254, 525. 
 Gracey v. Davis, 564. 
 Gragg V. Martin, 260. 
 
 Graham v. Furber, 54, igg. 
 
 Graham v. Lockhart, 222, 339, 345, 
 346, 391, 410, 411. 417. 584, 585. 
 589- 
 
 Graham v. La Crosse and Milwau- 
 kee R. R. Co., 446. 
 
 Graham v. McCreary, 143. 
 
 Graham v. Railroad Co., 15. 
 
 Graham v. Rooney, 227, 479. 
 
 Graham v. Smith, 52. 
 
 Grand Island Bank v. Costello, 201. 
 
 Grand Island Banking Co., v. Frey, 
 114. 
 
 Grant v. Chapman, 395, 421, 422. 
 
 Grant v. Lewis, 112. 
 
 Grant z/. Lewis, 115, 223, 582. 
 
 Grant v. Libby, 583. 
 
 Grant v. Sutton, 59. 
 
 Grant v. Ward, 590. 
 
 Graser v. Steelwagon, 463, 466. 
 
 Graves v. Blondell, 14, 228. 
 
 Graves v. Roy, 438, 439, 507. 
 
 Gray v. Chase, 538. 
 
 Gray v. Corey, 178. 
 
 Gray v. Faris, 252, 254, 525, 552. 
 
 Gray v. Galpin, 56. 
 
 Gray v. Mathias, 237. 
 
 Gray v. Schenck, 544, 545. 
 
 Gray v. St. John, 198, 576. 
 
 Gray v. Tappan, 292. 
 
 Greathouse v. Brown, 169. 
 
 Greeley v. Dixon, 440. 
 
 Greeley v. Winsor, 124, 126, T31. 
 
 Green v. Adams, 502, 505. 
 
 Green v. Allen, 516. 
 
 Green v. Banks, 339, 340, 372. 
 
 Green v. Branch Bank, 375, 406, 
 488. 
 
 Green v. Grand, 37. 
 
 Green v. Green, 315 
 
 Green v. Kimble, 523. 
 
 (Green v. Kornegay, 463. 
 
 Greene v. Mowry, 509. 
 
 Greene v. Starnes, 505^ 
 
xliv 
 
 TABLE OF OASES CITED. 
 
 [refbrbnces arb to pages.] 
 
 Green v. Stuart, 598. 
 
 Green v. Tanner, 20, 187, 188, 206, 
 
 221, 491, 551, 552. 
 Green v. Tantum, 57, 210, 217, 251, 
 
 527. 532- 
 Green v. Trieber, 27, 339, 373, 405, 
 
 406, 410, 413, 438, 439, 512. 
 Greenback v. Ferguson, 52. 
 Greenbaum v. Martinez, 177. 
 Greenbaum v. Wheeler, 125, 134, 
 
 137- 
 Greenfield's Estate, J02. 
 Greenleaf v. Edes, 375, 422, 488. 
 Greenleaf v. Mumford, 531. 
 Greenleve v. Blum, 18, 54. 
 Greenwald v, Roberts, 480. 
 "Greenwalt v. Austin, 196. 
 Greenway «. Thomas, 537. 
 Greenwood v. Brodhead, 529. 
 Greenwood v. Coleman, 459. 
 Greenwood v. Naylor, 513. 
 Greer v. State, 594. 
 Greer v. Wright, 252, 502, 527, 599. 
 Gregg V. Bigham, 556. 
 Gregg V. Bingham, 488, 517. 
 Gregg V. Cleveland, 17. 
 Gregory v. Gray, 58. 
 Gregory v. Harrington, 214, 458. 
 Gregory v. Haworth, 448. 
 Gregory v. Perkins, 25, 42. 
 Gregory v. Wheedon, 448. 
 Grider v. Graham, 451. 
 Gridley v. Bingham, 580. 
 Gridley v. Watson, 302. 
 Gridley v. Wynant, 483, 491. 
 Griflan v. Cranston,, 22, 229, 239, 260. 
 Griffin V. First Nat'l Bank, 241. 
 Griffin V. Marquardt, 372, 394, 418, 
 
 596. 
 Griffin V. N. J. Oil Co., 239. 
 Griffin V. Nitcher, 532. 
 , Griffin V. Sheley, 258. 
 Griffin V. Stodard, 15, 239. 
 Griffin V. Wardlaw, 274, 461, 497, 
 
 552- 
 Griffin V. Wright, no. 
 Griffith V. Bank, 233, 529. 
 Griffith V. Ricketts, 347. 
 
 Grimes v. Davis, 164. 
 
 Grimes v. Hill, 212. 
 
 Grimes v. Russell, 302. 
 
 Grimsby v. Ball, 504. 
 
 Grimshaw v. Walker, 440. 
 
 Grimsley v. Hooker, 466, 600. 
 
 Grissom v. Commercial Nat'l Bank, 
 
 352- 
 Griswold v. Sheldon, 64, 118, 124, 
 
 135- 
 Groenendyke v. Coffeen, 557. 
 Groff V. Cooper, io5, 148. 
 Grogan v. Cooke, 187, 218, 247, 251, 
 
 252, 304, 527. 
 Grooves v. Steele, 576. 
 Groschen v. Thomas, 588. 
 Gross V. Eddinger, 40. 
 Gross V. I/ange, 481. 
 Grossman z", Walters, 210. 
 Grover v. Wakeman, 24, 27, 183, 
 186, 338, 372, 376, 378, 389, 430, 
 432, 435. 436. 437. 541, 544. 552. 
 553.565.566, 599- 
 Grubles v. Greer, 52, 138. 
 Gruber v, Boyles, 28, 280, 574. 
 Grum B. Barney, 151. 
 Guardians v. Lawrence, 515. 
 Guerin v. Hunt, 366, 379, 381, 384, 
 385. 386, 387, 391, 408, 534, 577. 
 Guest V. Barton, 459. 
 Gugen V. Sampson, 330. 
 Guffin V. First Nat'l. Bank, 225. 
 Guidry v. Grivot, 576. 
 Guignard v. Aldrich, 120, 189. 
 Guild V. Leonard, 187. 
 Guillander v. Howell, 510. 
 Gully V. Hull, 447. 
 Gumbert v. Treusch, 574. 
 Gunn V. Butler, 226, 236. 
 Guthrie V. Gardner, 254, 525. 
 Guthrie V. Wood, 62, 169. 
 Gutzweiler v. Lachman, 169, 274, 
 
 469. 
 Guyer v. Figgins, 302. 
 Gwin V. Selby, 238. 
 Gwyer v. Figgins, 321, 532. 
 Gwynn v. Butler, 280. 
 Haak v. Linderman,.245. 
 
TABLE OP OASES CITED. 
 
 xlv 
 
 [rbpbrences arb to pages.] 
 
 H. B. Claflin Co., v. Rodenberg, i88. 
 
 Haas V. Whittier, 198. 
 
 Haben v. Harshaw, 238. 
 
 Habenicht v. Lissak, 528. 
 
 Hack V. Stewart, 241. 
 
 Hackett v. Manlove, 180, 267, 465, 
 
 517- 
 Hadden v. Spader, 251, 527. 
 Hafner v. Irwin, 20, 40, 365, 386, 
 
 388, 417. 
 Hagan v. Walker, 530, 536. 
 Hage z;. Campbell, 125, 132, 188. 
 Hager v. Shiudler, 474, 477, 540, 
 
 548, 557, 562. 
 Haggarty v. Pittman, 384, 522. 
 Haggerty v. Nixon, 525, 529, 533. 
 Hagerman v. Buchanan, 25, 279, 
 
 286, 288, 290, 327. 
 Haines v. Campbell, 421, 466. 
 Haines ». Chandler, 188. 
 Hairgrove v. Millington, 372, 581. 
 Halbert v. Grant, 49, 58, 253, 527, 
 
 529, 535,600. 
 Halcomb v. Ray, 42, 483, 484. 
 Hale V. Allnutt, 200. 
 Hale V. Chandler, 486. 
 Halez/. Saloon Omnibus Co., 46, 54, 
 
 197, 208, 2i8, 566, 593. 
 Hale V. Smith, 568. 
 Hale V. Stewart, 189, 231. 
 Haleys v. Williams, 565, 566. 
 Halfman v. Ellison, 555. 
 Hall V. Arnold, 19, i8q, 196, 206. 
 Hall V. Callahan, 447. 
 Hall V. Dennison, 341, 342, 345, 347, 
 
 259, 401, 413, 438. 
 Hall V. Gaylor, 164, 180. 
 Hall V. Greenly, 539, 540. 
 Hall V. Hamlin, 570. 571 
 Hall V. Heydon, 486. 
 Hall V. Joiner, 529. 
 Hall «. Light, 315. 
 Hall V. Parsons, 146. 
 Hall V. Parsons, 149, 173, 180. 
 Hall V. Redding, 121, 181. 
 Hall V. Sands, 337, 502. 
 Hall V. Snowhill, 461. 
 Hall V. Sroufe, 262. 
 
 Hall V. Stryker, 461, 503. 
 
 Hall V. Taylor, 594. 
 
 Hall V. Tuttle, 25, 73, 78, 97. 
 
 Hall V. Wheeler, 387, 391. 
 
 Hallorn v. Trum, 565. 
 
 Hallowell v. Horter, 262, 265. 
 
 Halsey v. Christie, 464. 
 
 Halsey v. Whitney, 27, 341, 342, 343, 
 
 345, 346, 353, 355, 394, 4oi, 403, 
 
 437, 438. 439, 440, 444. 
 Halstead v. Gordon, 419, 427. 
 Halstead v. Griman, 558. 
 Halton V. Jordan, 405. 
 Halverson v. Brown, 492. 
 Ham V. Gilmore, 54, 285. 
 Hamblyn v. Ley, 503. 
 Hambrick v. Bragg, 539. 
 Hamburger v. Peter, 290, 293, 
 Hamet v. Dundass, 45, 295, 584. 
 Hamill v. Willett, 119. 
 Hamilton v. Bishop, 590. 
 Hamilton z/. Blackwell, 49, 51. 
 Hamilton v. Cone, 254, 525. 
 Hamilton v. Gilbert, 462. 
 Hamilton v. Glenn, 360. 
 Hamilton v. Greenwood, 281, 301. 
 Hambleton v. Hayward, 113. 
 Hamilton v. Rogers, 129. 
 Hamilton v. Russell, 8, 94, 110. 
 Hamilton v. Scull, 457. 
 Hamilton v. Staples, 206. 
 Hamilton v. Thomas, 330. 
 Hamilton v. Zimmerman, 261. 
 Hamlen v. McGillicudy, 526, 532. 
 Hamlin v. Bridge, 247. 
 Hamlin v. Wright, 540, 545. 
 Hammock v. McBride, 273, 517. 
 Hammojld v. Hopkins, 557, 558. 
 Hammond v. Hudson, 545. 
 Hammond v. Hudson River Co., 
 
 542, 544, 600. 
 Hammond, v. Hudson River R. R. 
 
 Co., 542- 
 Hampson v. Sumner, 536, 552. 
 Hampton v. Morris. 402. 
 Hancock v. Horan, 122, 200. 
 Handy v. Phila. & Read. R. R. Co., 
 
 457- 
 
xlvi 
 
 TABLE OP CASES CITED 
 
 [references are to pages.] 
 
 Haney v. Nugent, 45, 51, 58. 
 Hanford v. Artcher, 57, 63, 67, loi, 
 
 112, 117. 
 Hanford v. Obrecht, 167, 169. 
 Hanford v. Paine, 509, 510, S"- 
 Hangen v. Hachemeister, 124, 130, 
 
 448. 
 Hankins v. Ingolls, 119, 136. 
 Hanly v. I/Ogan, 250. 
 Hanner v. Moulton, 558. 
 Hanson v. Bean, 56. 
 Hanson v. Buckner, 290, 501. 
 Hanson v. Manley, 323. 
 Hanson v. Power, 330, 500. 
 Hapgood V. Cornwell, 271. 
 Hapgood V. Fisher, 229. 
 Hardcastle v. Fisher, 391, 392. 
 Hardee v. Langford, 574. 
 Hardey v. Green, 204. 
 Hardin v. Osborn, 414, 415. 4I7- 
 Harding v. Colon, 462. 
 Harding v. County, 554. 
 Harding v. Harding, 486, 519. 
 Harding v. Janes, 144, 177, i78. 
 Hardy v. Green, 305, 307. 
 Hardy v. Mitchell, 297. 
 Hardy v. Simpson, 25, 340, 408. 
 Hardy v. Skinner, 60, 339, 340, 408. 
 Hargadine v. Davis, 200. 
 Hargadine v. Henderson, 185. 
 Hargroves v. Meray, 237, 317, 334, 
 
 336- 
 Harkins v. Bailey, 58, 187. 
 Harkness v. Russell, 158. 
 Harkness v. Smith, 107. 
 Harlan v. Barnes, 252, 293, 507, 527, 
 
 534- 
 Harlan v. Maglaughlin, 328, 332. 
 Harland v. Binks, 347. 
 Harlen v. Watson, 232. 
 Harman v. Abbey, 124. 
 Harman v. Hoskins, 22, 124, 487. 
 Harman z/. Richards, 208, 217, 321, 
 
 588. 
 Harmon v. Harmon, 447. 
 Harmon v. McRae, 234. 
 Harney v. First Nat'l Bank, 397. 
 
 Harney v. Pack, 48, 53, 1S3. 
 Harrell v. Beall, 492, 493. 
 Harrell v. Initrell, 55. 
 Harrell v. Godwin, 160. 
 Harrell v. Mitchell, 54, 56, 57, 584 
 
 591. 597- 
 Harrington v. Brittain, 113. 
 Harris v. Alcock, 44, 236, 486, 588. 
 Harris v. Burns, 48. 
 Harris v. De Graffenreid, 391. 
 Harris v. Harris, 455, 457, 500. 
 Harris, In re, 376. 
 Harris v. Russell, 32. 
 Harris v. Smith, 266. 
 Harris v. Sumner, 341, 373, 437, 606. 
 Harris v. Taylor, 547. 
 Harris v. Thompson, 361. 
 Harrison v. Bailey, 451. 
 
 Harrison v. Campbell, 33, 35 51, 55, 
 
 57, 481, 521, 536- 
 Harrison v. Carroll, 321. 
 Harrison v. Horsley, 575. 
 Harrison v. Jaquess, 208. 
 Harrison v. Kramer, 207, 540. 
 Harrison v. Phillips Academy, 42, 
 
 43. 187. 195- 
 Harrison v. Smith, 353. 
 Harrison v. Snair, 16. 
 Harrison v. Sterry, 362. 
 Harshaw v. Woodfin, 60. 
 Hart V. Carpenter, 158. 
 Hart V. Crane, 417. 
 Hart V. Flinn, 49, 58, 241. 
 Hart V. Gedney, 386, 417. 
 Hart V. Hart, 522, 500. 
 Hart V. McParland, 389. 
 Hart V. Mead, iii. 
 Hart V. Sandy, 54. 
 Hart V. Wing, 173. 
 Hartfield v. Simmons, 45, 598. 
 Harting v. Jockers, 227. 
 Hartlepp v. Whitely, 21. 
 Hartley v. M'Annulty, 446. 
 Hartley v. White, 238. 
 Hartman v. Diller, 578, 579. 
 Hartman v. Vogel, 118. 
 Hartman v. Weiland, 332. 
 
TABLE OF OASES OITED. 
 
 xlvii 
 
 [rbferbnces arb to pages.] 
 
 Hartshorne v. Eames, 19, 33, 35, 36, 
 49. 53, 57. 196, 200, 525, 527, 551, 
 564- 
 
 Hartshorn v. Williams, 42. 
 
 Harvey v. Alexander, 318, 321, 587, 
 588. 
 
 Harvey v. Crane, 124. 
 
 Harvey v. Mix, 389, 483. 
 
 Harvey v. Steptoe, 292. 
 
 Harvey v. Varney, 457. 
 
 Harvin v. Weeks, 457. 
 
 Harwick v. Weddington, 30. 
 
 Harwood v. Knapper, 457. 
 
 Haskell v. Bakewell, 50, 288, 303, 
 
 33°- 
 Hasley v. Whitney, 442, 443. 
 Hassam v. Barrett, 451, 487. 
 Hastings v. Baldwin, 23, 341, 346, 
 
 391. 4". 
 Hastings v. Belknap, 439. 
 Hastings Malting Co. v. Heller, 188. 
 Hastings v. Palmer, 395, 531, 
 Hastings v. Spencer, 605. 
 Haston v. Castner, 286, 302, 536. 
 Hatch V. Bates, 461. 
 Hatch V. Bayley, 597. 
 Hatch V. Gray, 318. 
 Hatch V. Jordan, 207. 
 Hatch V. Smith, 401, 438. 
 Hathaway v. Brown, 31. 
 Hathaway v. Brown, 209, 210, 46S, 
 
 469. 579. 581, 589, 590. 594, 596- 
 Hathaway v. Noble, 559. 
 Hatfield v. Mercer, 505. 
 Haven v. Ivow, 25, 64, 65, 118, 485. 
 Haven v. Richardson, 38, 342, 354, 
 
 381, 438, 441, 444. 
 Haven v Hussey, 362. 
 Hawes v, Blackwell, 353. 
 Hawes v. Leader, 447. 
 Hawkes v. Frazer, 225. 
 Hawkins v. Allston, 33, 44, 46, 57, 
 
 59, 224, 234, 275, 276, 553, 600. 
 Hawkins v. Moffatt, 227. 
 Hawkins v. Nat. Bank, 136. 
 Hawkins v. Sneed, 275, 491. 
 Hawley v. Page, 559. 
 Hawley v. Sackett, 237, 328. 
 
 Hay and Kerr's Appeal, 250. 
 Hayden v. Yale, 510. 
 Haydon v. Denslow, 457. 
 Hayes v. Heidelberg, 468, 470, 472. 
 Hayes v. Heidelberger, 471. 
 Hayes v. Jones, 232, 307, 315. 
 Hayes v. Westcott, 126, 127. 
 Haymaker's Appeal, 475. 
 Hayne v. Herrman, 574. 
 Hayner v. Fowler, 504. 
 Haynes v. Hunsicker, 173, 174. 
 Haynes v. Ledyard, 246. 
 Haynes v. Leppig, 582. 
 Hays V. Citizens Bank, 192. 
 Hays V. Doane, 385, 549. 
 Hays V. Heidelberg, 274. 
 Hays V. Hostetter, 221. 
 Haywood v. Foster, 595. 
 Haywood v. Lincoln Lumber Co., 
 
 193- 
 Haywood v. Sledge, 517. 
 Hazel V. Bank of Tipton, 366. 
 Hazelinton v. Gill, 61, 91, 120, 168, 
 
 306, 324. 
 Heacock v. Durand, 375, 428, 532, 
 
 553- 
 Head v. Horn, 239. 
 Head v. Ward, 167. 
 Heap V. Parrish, 594. 
 Hearn, Ex parte, 234. 
 Heath v. Bishop, 244. 
 Heath v. Page, 17, 299, 479, 502, 573, 
 
 ■ 574, 575, 600. 
 Heath v. Van Cott, 458. 
 Heaton v. Prather, 210. 
 Hecht V. Koegel, 57. 
 Heck V. Fisher, 255. 
 Heck V. Martin, 570. 
 Heckman v. Messinger, 398, 409.,^, 
 Hedman v. Anderson, 135. 
 Hedrick v. Strauss, 20. 
 Heeren v. Kitson, 190, 241. 
 HefEron v. Cunningham, 570. 
 Heflin v. Slay, 114. 
 Hefner v. Metcalf , 18, 370, 403. 
 Hegeler v. First Nat'l Bank, 39. 
 Heidingsfelder v. Slade, 187. 
 Heighe v. Farmers' Bank, 505, 549. 
 
xlviii 
 
 TABLE OF CASES CITED, 
 
 [references are to pages.] 
 
 Heinbockle v. Zungbaum, 1591 
 
 Heinrich v. Woods, 484. 
 
 Heintze v. Beutley, 43, 278, 486. 
 
 Heitzmon v. Divil, 246. 
 
 Helfricli v. Stem, 582, 583, 584, 590. 
 
 Hellman v. Bick. 188. 
 
 Helm V. Helm, 124. 
 
 Helmbold v. Helmbold Mfg. Co., 
 
 352- 
 Helm V. Green, 210, 235. 
 Hemmenway v. Wheeler, 518. 
 Hemphill v. Hemphill, 465, 539. 
 Hempstead v. Johnston, 56, 120, 
 
 122, 341, 370, 391, 408, 410, 414, 
 
 585, 597. 598- 
 Hempstead v. Starr, 402. 
 Henderson v. Adm, 448. 
 Henderson 11. Bliss, 432, 438, 439, 
 
 449. 
 Henderson v. Brooks, 534, 540. 
 Henderson v. Dodd, 296, 330, 502, 
 
 589- 
 Henderson v. Downing, 47, 227, 
 
 358. 
 Henderson v. Haddon, 391, 397. 
 Henderson v. Henderson, 54, 55, 
 
 200, 506. 
 Henderson v. Hunton, 475, 608. 
 Henderson v. Mabry, 70, 180. 
 Henderson v. Lloyd, 29S. 
 Henderson v. Warmack, 265. 
 Hendricks v: Mount, 197, 461. 
 Hendricks v. Robinson, 52, 187, 233, 
 
 239' 529- 
 Hendrickson v. Winne, 562. 
 Hendy v. Smith, 279. 
 Henkel, in re, 257. 
 Henkels v. Brown, 245. 
 He^essey v. Western Bank, 362, 
 
 424, 427, 439, 442, 443. 
 Hennon v. McClane, 229. 
 Henry v. Pullerton, 336. 
 Henry v. Harrell, 225. 
 Henry v. Henry, 596. 
 Henry v. Hinman, 227. 
 Henry v. Murphy, 524. 
 Henry v. Trustees of Perry Towp., 
 
 Henschen v. Leichtemeyer, 575. 
 Heppe V. Speakman, 245. 
 Herriott v. Dessau, 320. 
 Herman v. McKenney, 210. 
 Herbert's Case, 4. 
 
 Herkelrath v. Stookey, 33, 58, 206. 
 Herkiner Co. Bank v. Brown, 515. 
 Heme v. Meeres, 598, 607. 
 Heroy v. Kerr, 206. 
 Herrick v. Lynch, 454. 
 Herring v. Richards, 302, 337, 472. 
 Herring v. Wickham, 306, 311, 312. 
 
 313- 
 Herrington v. Herrington, 254, 565. 
 Herrich v. Kaufman, 532. 
 Herron v. Pry, 151, 173. 
 Herschfeldt v. George, 304, 328, 336^ 
 
 607, 611. 
 Hershey v. Whiting, 451. 
 Hershisher v. Higman & Co. 374. 
 Herzog v. Weiler, 325. 
 Hess V. Final, 459. 
 Hess V. Hess, 448. 
 Hessing v. McCloskey, 181, 188, igo, 
 
 206, 487, 580. 
 Hester V. Wilkinson, 288. 
 Hetfield v. Jacqties, 503. 
 Henson v. Tootle, 135. 
 Hewitt z/. Commercial Banking Co., 
 
 184. 
 Hewett V. Griswold, 107. 
 Heydock v. Stanhope, 268, 367, 438, 
 
 553- 
 Heye v. Bolles, 397, 398, 531. 
 Heyneman v. Dannenberg, 531. 
 Heywood v. Brooks, 479. 
 Hibbard v. Zenor, 114. 
 Hibben v. Soyer, 257, 611. 
 Hibernia Ins. Co. v. S. and L. and 
 
 N. Trans. Co., 532. 
 Hibernia Nat'l Bank v. Lacombe, 
 
 510. 
 Hickman v. Caldwell, 513. 
 Hickman v. Hickman, 516. 
 Hickman v. Perrin, 47, 124, 131, 134, 
 
 136. 
 Hickman v. Quinn, 187, 567. 
 Hickman v. Trout, 32, 211. 
 
TABLE OF OASES CITED. 
 
 xlix 
 
 [rbferb;nces akb to pages.] 
 
 Hicks V. Stone, 207, 280, 591. 
 Higby V. Ayres, 387, 414. 
 Higgins V. Crouse, 558. 
 Higgins V. Gillesheimer, 540. 
 Higgins V. York Building Co., 562, 
 
 603. 
 High V. Nelms, 290, 568, 609. 
 High V. Wilson, 465. 
 Highland v. Highland, 505, 608. 
 Hightower v. Mustian, 403, 544, 549. 
 Hilderburn v. Brown, 38. 
 Hildebrandt v. Bowman, 409. 
 Hildreth v. Sands, 477, 588. 
 Hill V. Agnew, 419, 427, 429, 430. 
 Hillz'. Bowman, 32, 191. 
 Hill V. Draper, 397. 
 Hill V. Freeman, 245. 
 Hill V. Hill, 245. 
 Hill V. Northrop, 191, 196. 
 Hill V. Pine River Bank, 461. 
 Hill V. Reed, 360. 
 Hill V. Rogers, 191. 
 Hill V. Rutledge, 41. 
 Hill V. Wynn, 321. 
 Hillard v. Cagle, 26, 39, 108, 132, 
 
 133. 13s. 326. 327. 328. 
 Hilliard v. Phillips, 582. 
 Hills V. Eliot, 574. 
 Hills V. Hoitt, 577. 
 Hills V. Sherwood, 563, 568. 
 Hillsman v. Blackwell, 53, 58. 
 Hilzeim v. Drane, 463. 
 Hincks v. Field, 125. 
 Hinde v. Longworth, 568. 
 Hinde v. Vattier, 187. 
 Hinde's Lessee v. Longworth, 301. 
 Hindes v. Longworth, 507, 589. 
 Hindman v. Dill, 188, 221, 410, 
 Hinds V. Keith. 212, 584, 595. 
 Hiney v. Thomas, 477. 
 Hinkle v. Wilson, 324, 598. 
 Hineman v. Matthews, i5o. 
 Hinman v. Parkis, 266, 302. 
 Hinton v. Curtis, 34, 52, 57, 223. 
 Hinton v. Scott, 319. 
 Hirsch v. Steele, 159, 160. 
 Hirschkind v. Israel, 131. 
 Hirschorn v. Canney, 159. 
 
 Hise V. Hartford Life Ins. Co., 248. 
 
 Hisey v. Goodwin, 36. 
 
 Hisle V. Rudisill, 228. 
 
 Hisle D. Hoover, 571. 
 
 Hitchcock V. Cadmus, 425. 
 
 Hitchcock V. Kiely, 327. 
 
 Hitchcock y. St. John, 50, 362, 387. 
 
 Hitchler v. Citizens Bank, 129. 
 
 Hitt V. Ormsbee, 295, 568. 
 
 Hixon V. George, 257. 
 
 Hobbs V. Bibb. 62. 
 
 Hobbs V. Davis, 204. 
 
 Hobbs V. Hull, 317. 
 
 Hoboken Bank v. Beekman, 58, 45, 
 
 553- 
 Hockett V. Bailey, 323. 
 Hodenpuhl v. Hines, 357, 364. 
 Hodge V. Wyatt, 339, 345, 346. 
 Hodges V. Blount, 39. 
 Hodges V. Cobb, 260, 261. 
 Hodges V. Coleman, 189. 
 Hodgkins v. Hook, 142, 145, 178. 
 Hodson V. Treat, 461, 
 Hodson V. Warner, 159. 
 Hoeser v. Kraeka, 459. 
 Hoey V. Pierron, 374. 
 Hoffer V. Gladden 51, 54. 
 Hoffman's Appeal. 475. 
 Hoffman v. Gosnell, 40, 223. 
 Hoffman v. Junk, 502. 
 Hoffman v. Mackall, 18, 339, 356, 
 
 357. 366, 367- 377. 413. 415. 419. 
 
 421, 422. 
 Hoffman v. Pitt, 9?, 93, 105, 465. 
 Hoffman v. Toner 262. 
 Hoffner v. Clark, 152, 162, 163. 
 Hogan V. Cowell, iii. 
 Hoke V. Henderson, 28, 475, 496, 
 
 556. 
 Holbird v. Anderson, 19, 187, 197, 
 
 233. 367- 
 Holbrook v. Baker, 165, 239, 402. 
 Holbrook v. Ford, 565. 
 Holbrook v. Holbrook, 581. 
 Holcombe v- Ehrmantraut, 210. 
 Holden v. Burnham, 45, 231, 235, 
 
 285. 
 Holdship V. Patterson, 260. 
 
TABLE OP CASES CITED. 
 
 [repbrbncbs arb to pages.] 
 
 Holt V. Creamer, 486. 
 Hollacher v. O'Brein, 118. 
 Holland v. Cruft, 447, 605. 
 Holland v. Holland, 352. 
 Holliday v. HoUiday, 451. 
 Holliday v. Miller, 266. 
 Hqllins v. Iron Co., 195. 
 Hollins V. Mayer, 440. 
 Hollinsliead v. Allen, 539. 
 Hollis V. Morris, 451. 
 Hollister v. Loud, 342, 354, 365, 
 368, 371, 397. 402. 403, 404. 409, 413. 
 
 550- 
 Holloway v. Millard, 281, 285, 302, 
 
 330. 334- 
 HoUowell V. Simonson, 321. 
 Hollowell V. Skinner, 246. 
 Holmberg v. Dean, 380, 384, 385, 
 
 386. 
 Holmes v. Braidwood, 366. 
 Holmes v. Clark, 280, 301, 330. 
 Holmes v. Crane, 116, 118, 165, 166, 
 Holmes v. Elliott, 290. 
 Holmes v. Oilman, 353. 
 Holmes v. Harshberger, 252. 
 Holmes v. Marshall, 134. 
 Holmes v. Penney, 208, 288, 294, 
 
 330. 333, 336. 556. 
 Holt V. Bancroft, 374. 
 Holt V. Creamer, 20. 
 Holt V. Creamer, 43, 211, 459. 
 Holt V. Kelly, 371, 408. 
 Hombeck 2/. Vanmetre, 119. 
 Hombs V. Corbin, 590. 
 Hone V. Henriquez, 347, 565, 606. 
 Hone V. Woolsey, 348, 349. 
 Hood V. Brown, 39. 
 Hood V. Fahnestock, 491, 494. 
 Hood V. Frelison, 451. 
 Hood V. Jones, 294. 
 Hoofsmith v. Cope, 187. 
 Hook V. Mowre, 58, 336, 494, 500. 
 Hook V. Stone, 362. 
 Hooper v. Baillie, 362. 
 Hooper v. Edwards, 586. 
 Hooper v. Hills, 341. 
 Hooper v. Tuckerman, 27, 375, 410. 
 Hoopes V. Knell, 386. 
 
 Hoose V. Robbins, 574, S93. 
 
 Hooser v. Hunt, 21, 211. 
 
 Hoot V. Sorrell, 46, 254, 260, 321, 
 
 324- 
 Hooven v. Bnrdette, 351. 
 Hoover v. R. I. l/oc. Works, 510. 
 Hope V. Blair, 519. 
 Hope V. Valley City Salt Co., 193. 
 Hopkins v. Beebe, 189, 523. 
 Hopkins v. Bishop, 147. 
 Hopkins, Ex parte, 398. 
 Hopkins w.. Gallatin Co., 360. 
 Hopkins v. Joyce, 532. 
 Hopkins v. Langton, 210, 211, 576. 
 Hopkins v. Scott, 120, 167, 233. 
 Hopkins v. Sievert, 591. 
 Hopkins v. Webb. 461. 
 Hopkirk v. Randolph, 235, 251, 290, 
 
 296, 302, 303, 304, 307, 497, 600, 
 
 603, 610. 
 Horbach v. Hill, 326. 
 Hord V. Rust, 33, 502, 550. 
 Horn V. Horn, 251. 
 Horn V. Ross, 326. 
 Horn V. Star Foundry Co., 446. 
 Horn V. Volcano Co., 332. 
 Horn V. Volcano Water Co., 330, 
 
 466. 
 Horn V. Wiatt, 58. 
 Horneffer v. Duress, 325. 
 Horner v. Zimmerman, 447, 529. 
 Horstman v. Kaufman, 550. 
 Horton v. Dewey, 318, 585. 
 Horton v, Williams, 113. 
 Horwitz V. Ellinger, 16, 19, 367, 368. 
 Hotop V. Durant, 370, 371. 
 Hotop V. Neidig, 390. 
 Houck V. Keinzman, 22, 48, 56, 115, 
 
 116. 
 Hough V. Ives, 42. 
 Houghton V. Tate, 253, 566. 
 Houghton V. Westervelt, 422. 
 Houser v. Beaty, 189. 
 Houston V. Boyle, 290, 295. 
 Houston V. Howard, 143. 
 Houston V. Nowlend, 341, 359, 509. 
 Houston V. Sutton, 514. 
 Hovey v. Holcomb, 15, 547, 548, 561. 
 
TABLE OF OASES OITED. 
 
 li 
 
 [rbFBRENCBS A.RE TO PAGBS.] 
 
 How V. Camp, 48, 49, 57, 401, 552, 
 
 553. 566, 600, 601, 603, 60s, 609. 
 
 610. 
 How V. Taylor, 178. 
 Howard v. Crawford, 37. 
 Howard v. Fay, 352. 
 Howard v. Rohlfing, 125, 129. 
 Howard v. Rynearson, 241. 
 Howard v. Sheldon, 157, 235, 245. 
 Howard v. Williams, 163, 290, 294, 
 
 296, 300, 302, 330. 
 Howe V. Bishop, 254, 525. 
 Howe Mach. Co. v. Claybourn, 20, 
 
 225, 228. 
 Howe V. Colby, 318. 
 Howe V. Kerr, 397. 
 Howe V. Keeler, 144. 
 Howe V. Lawrence, 271. 
 Howe V. Reed, 575, 577. 
 Howe V. Ward, 326, 330, 501, 505. 
 Howe V. Waysman, 449. 
 Howe V. Wildes, 235. 
 Howell V. Alkyn, 512, 515. 
 Howell V. Bell, 221. 
 Howell V. Edgar, 373, 375, 438. 488. 
 Howell V. Edmunds, 447. 
 Howell V. Elliott, 587. 
 Hower v. Geesaman, 156, 353, 386, 
 
 402, 413. 
 Howerton v. Holt, 135. 
 Howland v. Dews, 519, 520. 
 Howland v. Ralph, 464. 
 Hoxie V. Price, 55, 261, 318, 540. 
 Hoy V. Wright, 491. 
 Hoye o. Penn, 230, 284. 
 Hoyt V. Godfrey, 20. 
 Hoyt V. Turner, 210. 
 Hozey v. Buchanan, 504. 
 Hubbard v. Allen, 51, 58, 230, 274, 
 
 585 587, 6o6- 
 Hubbard v. Hubbard, 521. 
 Hubbard v. McNaughton, 433. 
 Hubbard v. Remick, 320. 
 Hubbard v. Savage, 239. 
 Hubbard v. Taylor, 187. 
 Hubbard v. Winborne, 387. 
 Hubbell V. Allen, 125, 130. 
 Hubbell V. Currier, 539, 600. 
 
 Hubbs V. Bancroft, 45, 46, 475, 565. 
 Hubbs V. Brockwell, 448. 
 Hubbs V. Waterman, 412. 
 Hudgins v. Kemp, 35, 45, 55, 57. 
 Hudnal v. Wilder, 8, 289, 301, 333. 
 Hudson V. Eisenmayer Milling and 
 
 Elevator Co., 185. 
 Hudson V. Elevator Co., 338. 
 Hudson V. Jordan, 210. 
 Hudson V. Maze, 342, 430. 
 Hudson V. Osborn, 252. 
 Hudson V. Warner, 108. 
 Hudson V. Willis, 21. 
 Huebler v. Smith, 106. 
 Huebler v. Smith, 120, 170. - 
 Huels V. Boettger, iii. 
 Huey's Appeal, 489. 
 Huff V. Roane, 591. 
 Huggins V. Ferine 253, 327, 331. 
 Hughes z;. Bloomer, 551. 
 Hughes V. Cory, 13, 113, 124. 
 Hughes V. Ellison, 362. 
 Hughes ». Menafee, 113. 
 Hughes V. Monty, 209. 
 Hughes V. Roper, 34, 37. 
 Hughes V. Robinson, 68, 142, 149, 
 
 173- 
 Huckabee v. Billingsley, 353. 
 Hull V. Edrington, 302. 
 Hull V. Sigsworth, 162. 
 Hulse V. Mershon, 201. 
 Humbert v. Methodist Church, 292. 
 Humberton v. Howgill, 521. 
 Humes v. O'Bryan, 582. 
 Humes v. Scruggs, 322, 323, 481. 
 
 485- 
 Hummel's Estate, in re, 447. 
 Humphries v. Freeman, 202, 209. 
 
 211, 213. 
 Humphries v. McCraw, 163, 580. 
 Humphries v. Wilson, 55. 
 Humphrey v. Spencer, 255. 
 Humphreys v. Butler, 554. 
 Hundley v. Buckner, 585. 
 Hundley v. Webb, 94, 139, 162, 164, 
 
 165, 166, 167. 
 Hungerford v. Earle, 38, 52, 327, 
 
 525- 
 
lii 
 
 TABLE OF OASES CITED. 
 
 [refbrences, are to pages.] 
 
 Himsinger v. Hofer, 502. 
 
 Hunt V. Blodgett, 55, 254, 525. 
 
 Hunt V. Butterworth, 447. 
 
 Hunt Z'. Conrad, 353. 
 
 Hunt V. Field, 531, 546. 
 
 Hunt V. Hooper, 513. 
 
 Hunt V. Hoover, 46, 212. 
 
 Hunt V. Knox, 58, 555, 562. 
 
 Hunt V. Lathrop, 511. 
 
 Hunter v. Foster, 48. 
 
 Hunter v. Hunter, 293, 561. 
 
 Hunters v. Waite, 21, 222, 281, 283, 
 
 287, 296, 298, 301, 335. 
 Huntzisiger v. Harper, 577. 
 Hurd V. Silsbee, 345, 438, 469. 
 Hurdt V. Courtenay, 318, 321, 330, 
 
 332, 334. 505, 512. 
 Hurlbert v. Dean, 397. 
 Hurlburdz/. Bogardus, 150, 178. 
 Hurlburt v. Jones, 263. 
 Hurley v. Oeler, 449. 
 Huron v. George, 257. 
 Hurst V. Hare, 430. 
 Huschle V. Morris, 107, 124, 128. 
 Hussey v. Castle, 315, 320, 331. 
 Hussey v. Thornton, 157. 
 Hussman, In re, 54, 563. 
 Huston V. Caritrill, 306, 497, 505, 
 
 560. 
 Hutchins v. Gilchrist, 155, 174, 176, 
 
 177, 179. 
 Hutchins «. Sprague, 483. 
 Hutchinson v. Bank, 39. 
 Hutchinson v. First National Bank, 
 
 39. 547- 
 Hutchinson v. Horn, 206, 237. 
 Hutchinson v. Kelley, 34, 50, 327, 
 
 332. 334. 500, 501. 
 Hutchinson v. Lord, 422, 426. 
 Hutchinson v. McClure, 187. 
 Hutchinson v. Smith, 364, 402. 
 Hutchinson v. Watkins, 206. 
 Hyde v. Chapman, 21, 231, 285, 530. 
 Hyde v. Ellery, 522. 
 Hyde v. Prey, 263. 
 Hyde v. Olds, 347. 
 Hyde v. Powell, 248. 
 
 Hyde v. Sontag, 45, 51, 56. 
 Hyde v. Woods, 250. 
 Hyman v. Bailey, 477, 584. 
 Hyslop V. Clarke, 27, 375, 389, 488. 
 Hey V. Niswanger, 330, 332, 334. 
 111. Sav. Bank v. Smith, 352. 
 Imray v. Magnay, 497, 504, 517, 518, 
 
 577- 
 Independent District v. King, 353. 
 Ing V. Brown, 552. 
 Ingals V. Brooks, 570. 
 Ingalls V. Herrick, 108. 
 Inglehart v. Thousand Islands Hotel 
 
 Co., 21. 
 Ingles J/. Donaldson, ) g 
 
 Ingles z/. Donalson, (■ ^^' ^^' 3. 
 
 448. 
 Ingliss V. Grant, 400. 
 Ingraham v. Geyer, 437, 509, 510. 
 Ingraham v. Grigg, 356, 405, 409, 
 
 428. 
 Ingraham v. Rankin, 269. 
 Ingraham v. Wheeler, 177, 349, 386, 
 
 437- 
 Ingram v. Kirkpatrick, 343, 347. 
 Ingram v. Phillips, 330, 333, 567. 
 Inloes V. American Exchange Bank. 
 
 373. 418, 421- 
 Innis V. Carpenter, 21, 38, 42. 
 Insurance Co. v. Wallis, 236, 348, 
 
 439. 444. 472, 588. ' 
 Ionia Sav. Bank v. McLean, 241. 
 Iosco Sav. Bank v. Barnes, 190. 
 Irish V. Clayes, 485. 
 Irwin V. Keen, 372, 392, 544. 
 Irwin V. Longworth, 468. 
 Irwin V. Wilson, 239. 
 Isaacson v. Harwood, 352. 
 Iselin V. Dalrymple, 429. 
 Isham V. Schaffer, 254, 261. 
 Ishmael v. Parker, 529. 
 Ithel V. Beane, 307, 309. 
 Ivaneovich v. Stern, 149, 236. 
 Ives V. Halce, 107. 
 Ives V. Stone, 42. 
 Izzard v. Izzard, 289, 294, 301, 315. 
 Jackman v. Robinson, 541, 543, 544, 
 545- 
 
TABLE OF OASES OITED. 
 
 liii 
 
 [references are to pages.] 
 
 Jacks V. Tunno, 50, 163, 287, 293, 
 
 300, 301, 567. 
 Jackson v. Andrews, 496. 
 Jackson v. Bouley, 293, 521. 
 Jackson v. Brownell, 202, 278. 
 Jackson v. Brush, 57. 
 Jackson v. Cadwell, 465. 
 Jackson v. Cornell, 19, 367, 385, 
 
 387. 399- 
 Jackson v. Daggett, 353. 
 Jackson v. Button, 447. 
 Jackson v. Forrest, 253, 543. 
 Jackson v. Garnsey, 447, 458, 586. 
 Jackson v. Ham, 232. 
 Jackson v. Harby, 32, 338, 376. 
 Jackson v. Lewis, 286, 291. 
 Jackson v. Ludeling, 609. 
 Jackson v. Mather, 20, 35, 36, 49, 55, 
 
 58, 210, 502. 
 Jackson v. Miner, 238. 
 Jackson v. Myers, 331, 502. 
 Jackson v. Parker, 226. 
 Jackson v. Peek, 230, 279, 204. 
 Jackson v. Plyer, 326. 
 Jackson v. Post, 301. 
 Jackson v. Scott, 270. 
 Jackson v. Spivey, 58. 
 Jackson v. Terry, 491, 495, 496. 
 Jackson v. Timmerman, 285. 
 Jackson v. Town, 285, 301. 
 Jacobi V. Schloss, 480. 
 Jacobs V. Allen, 426, 427. 
 Jacobs V. Remsen, 387, 392, 401, 
 
 427, 429, 582. 
 Jacobs V. Smith, 492. 
 Jacobs V. Totty, 45. 
 Jacobus V. Mut. Ben. Life Ins. Co., 
 
 240. 
 Jacoby'Sj Appeal, 475. 
 Jacob V. Gorbett, 375, 442, 488. 
 Jaeger v. Kelley, 45, 593, 597. 
 Jaffers v. Aneals, 58, 482, 
 JafEray v. Wolfe, 185. 
 James v. Bird, 450. 
 James v. Johnson, 38, 52, 57. 
 James v. McCleod, 603. 
 James v. Railroad Coinpany, 199. 
 Jamison v. Chestnut, 504. 
 
 Jamison v. King, 46. 
 
 Janes v. Whitbread, 34, 197, 420. 
 
 Janney v. Howard, 177. 
 
 Janney v. Barnes, 388, 408, 411. 
 
 Jaques v. Greenwood, 403, 476. 
 
 Jarman v. Wooloton, 64, 168, 307, 
 
 324- 
 Jarolawski ». Simon, 199, 200. 
 
 Jarvis v. Davis, 147, 162. 
 Jason V. Jervis, 314. 
 Jaycox V. Caldwell, 318,. 393. 
 Jeffries v. Cochrane, 564. 
 Jencks v. Alexander, 253. 
 Jenison v. Graves, 266, 552. 
 Jenkins, v. Eichelberger, 246. 
 Jenkins v. Einstein, 53, 200, 206. 
 Jenkins v. Middleton, 323. 
 Jenkins v. Pearce, ) , 
 
 Jenkins z/. Peace, ) ^°' ^ '. 
 Jenkyn v. Vaughan, 226, 248, 249, 
 
 281, 334- 
 Jenkyns v. Keymis, 308, 309. 
 Jenne v. Joslyn, 578. 
 Jenness v. Berry, 467, 468, 568, 570, 
 
 571. 572. 
 Jenney v. Andrews, 256. 
 Jennings v. Carter, 96, 163. 
 Jennings v. Prentice, 296, 384. 
 Jervis v. Smith, 395. 
 Jessup V. Bridge, 124. 
 Jessup V. Hulse, 350, 416, 418, 492, 
 
 547- 
 Jessup z;. Johnson, ) g 
 
 Jessup V. Johnston, ) ^'" -J ' ^ ■ 
 Jesup V. Ry. Co., 560. 
 Jewell V. Porter, 447. 
 Jewett V. Cook, 45, 499. 
 Jewett V. Fink, 257. 
 Jewett V. Warren, 47, 233. 
 Jewett V. Woodward, 376. 
 Jezeph V. Ingram, 169. 
 Jimmerson v. Duncan, 254, 525. 
 Johns V. Bolton, 347, 439, 468, 470. 
 Johnson v. Alexander, 249. 
 Johnson v. Brandis, 208, 211, 502. 
 Johnson v. Cunningham, 167, 221. 
 Johnson v. Curtis, 136. 
 Johnson v. Cushing, 256. 
 Johnson v. Elliott, 461. 
 
liv 
 
 TABLE OP CASES CITED. 
 
 [refsrbnces are to pages.] 
 
 Johnson y. Glenn, 266. 
 Johnson v. Hughes, 114. 
 Johnson v. Jeffries, 461. 
 Johnson v. Johnson, 206, 229, 265. 
 Johnson v. Legard, 308. 
 Johnson v. Lovelace, 49, 584. 
 Johnson v. May, 253, 539, 543. 
 Johnson v. McAllister, 373, 410, 421. 
 Johnson v. McGrew, 188, 204, 216. 
 Johnson v. Motley, 457. 
 Johnson v. Murchison, 486. 
 Johnson v. Osenton, 19, 197, 367. 
 Johnson v. Patterson, 124. 
 Johnson v. Phillips, 235. 
 Johnson v. Robinson, 188. 
 Johnson z/. Rogers, 475. 
 Johnson v. Standard Min. Co., 558. 
 Johnson v. Sullivan, 200, 208. 
 Johnsos V. Thweatt, 22, 123, 137, 
 
 495- 
 Johnson v. Tuttle, 124, 129, 134, 135. 
 Johnson v. Vail, 266. 
 Johnson v. West, 290, 
 Johnson v. Whitwell, 199, 201. 
 Johnson v. Willey, 143. 
 Johnson v. Williams, 513. 
 Johnson v. Bank, 607. 
 Johnston v. Dick, 36, 49, 52. 57, 208, 
 
 499. 
 Johnston v. Field, 207. 
 Johnston v. Gill, 290. 
 Johnston v. Harvy, 227, 405, 406, 464 
 
 493. 495- 
 Johnston, Inre.\ ,, , 
 Johnson, » J- 45, 56, 210, 275, 
 
 Johnston v. Markle, 554. 
 
 Johnston v. Zane, ) 229, 288, 327, 
 
 Johnson v. Zane, J 330, 507. 
 
 Jones' Appeal, 306. 
 
 Jones V. Ashurst, 502. 
 
 Jones V. Blake, 115, 164. 
 
 Jones V. Boulter, 210, 281, 284, 290, 
 
 321. 
 Jones V. Butler, 209. 
 Jones V. Bryant, 479. 
 Jones V. Clifton, 302, 335. 
 Jones V. Comer, 459, 
 Jones V. Crawford, 476. 
 
 Jones V. Dougherty, 341, 342, 438, 
 
 469, 474. 
 Jones V. Dwyer, 177. 
 Jones V. Gorman, 451. 
 Jones V. Green, 529, 531, 532. 
 Jones V. Henry, 44, 315, 526. 
 Jones V. Hill, 461. 
 Jones V. Huggeford, 23. 
 Jones V. King, 49, 50, 336, 374, 582, 
 
 584- 
 Jones V. Lake, 465. 
 Jones V. Light, 20, 42, 45. 
 Jones Lumber Co. v. Villegas,Tex., 
 
 16. 
 Jones V. Marsh, 316, 330. 
 Jones V. Matthews, 353. 
 Jones V. Naughright, 195, 198, 204. 
 Jones V. Norris, 576. 
 Jones V. Powell, 234. 
 Jones V. Rahilly, 456, 466. 
 Jones V. Read, 55, 58, 451, 493, 555, 
 
 556. 
 Jones V. Reeder, 600. 
 Jones V. Ruffin, 232 
 Jones v. Slubey, 293, 587. 
 Jones V. Smith, 558, 560. 
 Jones V. Spear, 228. 
 Jones V. Syer, 419. 
 Jones V. Taylor, 114, 295, 511. 
 Jones V. Young, 302.. 
 Jordan v. Bank, 114. 
 Jordon v. Penno, 447. 
 Jordan v. Frink, 144. 
 Jordan v. Turner, 135, 166. 
 Jordan v. White, 189, igi. 
 Jose V. Hewitt, 230. 
 Joseph V. Boldridge, 127, 130. 
 Joseph V. Levi, 123, 134, 137. 
 Joseph V. Mady Clothing Co., 578. 
 Joseph V. McGill, 531. 
 Joy V. Sears, 176. 
 Joyce V. Joyce, 451. 
 Judd V. Langdon, 178. 
 Judge V. Vogle, 52, 466, 498. 
 Judson V. Gardner, 407. 
 Juliand v. Rathbone, 356. 
 Justh V. Wilson, 106. 
 J. V. Farwell Co. v. Wright, i88. 
 
TABLE OF CASES CITED. 
 
 Iv 
 
 [rbfbrbncbs arb To pagbs.] 
 
 J. W. Butler Paper Co. v. Robbins, 
 
 28. 
 Kaehler v. Diblee, 293. 
 Kahl V. Martin, 290. 
 Kahley, et al., in re, 133, 135, 136, 
 
 487. 
 Kain v. Larkin, 241, 287, 295. 
 Kaine v. Weigley, 57, 58, 208, 218, 
 
 592. 593- 
 Kalk V. Fielding, 44, 134. 
 Kalkman v. McElderry, 345. 
 Kamp V. Kamp, 503, 537. 
 Kanawha Valley Bank v. Atkinson, 
 
 323- 
 Kane v. Desmond, 59. 
 Kane v. Drake, 25, 33, 56, 107, 591. 
 Kane v. Roberts, 336, 337, 472. 
 Kankakee Woollen Mill Co. v. 
 
 Kampe, 192. 
 Kansas City Packing Co. v. Hoover, 
 
 8, 406. 
 Kan. Pac. R. R. Co. v. Crouse, 118. 
 Kassing v. Durand, 451. 
 KaufEelt's, Appeal, 513. 
 Kaufman v. Coburn, 233. 
 Kaufman v. Schneider, 188. 
 Kaufman v. Whitney, 46. 
 Kaupe V. Bridge, 483, 538, 563, 600. 
 Kavanaugh v. Beckwith, 391. 
 Kavanaugh v. Thompson, 484. 
 Kayser v. Heavenrich, 372, 396. 
 Kean v. Newell, 25. 
 Keane v. Kyne, 452. 
 Keating v. Keefer, 241, 292, 327, 
 
 482, 611. 
 Keel V. Larkin, 27, 40, 446. 
 Keeler v. Ullrich, 337. 
 Keen v. Kleckner, 189, 231, 236. 
 Keen v. Preston, 588. 
 Keenan v. Stinson, 114. 
 Keeney v. Good, 262, 324. 
 Keep V. Sanderson, 422, 600. 
 Keevil v. Donaldson, 369. 
 Kehr v. Sickler, 254. 
 Kehr v. Smith, 292, 297, 317, 334, 61 1. 
 Heighler v. Nicholson, 441. 
 Keith V. Fink, 397. 
 Keith V. Proctor. 43, 207. 
 
 Keith V. Woombell, 265. 
 Kellar v. Self, 363. 
 Keller v. Blanchard, 117. 
 Keller v. Smalley, 421. 
 Keller v. Taylor, 204. 
 Kelley v. Fleming, 56. 
 Kellogg V. Aherin, 207. 
 Kellogg V. Clyne, 200. 
 Kellogg V. Griffin, 513, 
 Kellogg V. Muller, 421, 423. 
 Kellogg V. Richardson, 185. 
 Kellogg V. Slauson, 355, 377, 381, 
 
 422. 
 Kelly V. Baker, 362. 
 Kelly V. Campbell, 302, 575. 
 Kelly V. Crapo, 510. 
 Kelly V. Lane, 540, 600. 
 Kelly V. Lenihan, 20. 
 Kelly V. Murphy, 147. 
 Kelly V. Sprague, 189. 
 Kelsey v. Murphy, 523, 578. 
 Kelso V. Blackburn, 529. 
 Kemp V. Carnley, 362, 397. 
 Kemp V. Porter, 345. 
 Kemp V. Walker, 187, 195. 
 Kempland v. Macauley, 513, 518. 
 Kempnerz/. Churchill, 31, 41, 45, 46, 
 
 590- 
 Kendall v. Bishop, 185, 193. 
 Kendall v. Fitts, 177, 178. 
 Kendall v. Hughes, 216, 581, 582, 
 
 592- 
 Kendall v. New Eng. Carpet Co., 
 
 362, 420. 
 Kendall v. Pitts, 142. 
 Kendall v. Samson, 180. 
 Kendrick v. Taylor, 320. 
 Kenealy v. Macklin, 562. 
 Kennaird v. Adams, 195, 198. 
 Kennedy v. Divine, 581. 
 Kennedy v. First Nat. Bank of 
 
 Tuscaloosa, 480, 482. 
 Kennedy v. Head, 319. 
 Kennedy v. Nunan, 244. 
 Kennedy v. Powell, 56. 
 Kennedy v. Ross, 33, 53. 
 Kennedy v. Ryall, 594. 
 Kennedy v. Stout, 554. 
 
Ivi 
 
 TABLE OF OASES CITED. 
 
 [refbrbncbs arb to pages.] 
 
 Kennedy v. Thorpe, 369. 
 Kenney v. Con. Va. M. Co., 446. 
 Kent V. Riley, 301, 566. 
 Kenyon v. Wrisley, 351. 
 Kepner v. Burkhart, 48. 
 Kerbs v. Ewing, 185. 
 Kern v. Wilson, 114. 
 Kerner v. Boardman, 177. 
 Kerr v. Hutchins, 34, 302, 563, 612. 
 Kerrains v. People, 594. 
 Kerrigan v. Rautigan, 294. 
 Ketchin v. McCarley, 258. 
 Ketchum v. Allen, 257. 
 Ketchum v. Watson, 157, 245. 
 Keteltas v. Wilson, 394, 427, 596. 
 Ifettlewell v. Stewart, 438. 
 Kevan v. Branch, 354, 408. 
 Kevan v. Crawford, 43, 210, 311. 
 Keyes v. Brush, 354. 
 Keyes v. Rines, 257. 
 Keyes v. Grannis, 465. 
 Keyser's Appeal, 515. 
 Kid V. Johnson, 351. 
 Kid V. Mitchell, 163, 288, 330, 461. 
 Kidd V. Rawlinson, 38, 61, 92, 170. 
 Kidney v. Coussmaker, 330, 334. 
 Kilbourn v. Sunderland, 558. 
 Kilby V. Haggin, 120, 200, 226, 275, 
 
 276, 277, 278, 470. 
 Killough V. Steele, 119, 229. 
 Kimball v. Eaton, 447. 
 Kimball v. P. and M. Bank, 125. 
 Kimball v. Fenner, 585. 
 Kimball v. Munger, 514. 
 Kimball v. Thompson, 19, 271. 
 Kimberling v. Hartly, 539. 
 Kimmell v. McRight, 254, 292, 525, 
 
 576. 
 Kinder v. Macy, 35, 44, 59, 547. 
 King V. Atkins, 54. 
 Kingz/. Bailey, 140, 154, 156, 165, 
 
 504, 584. 
 King V. Brewen, 317. 
 King V. Cantrel, 42, 483. 
 King V. Clarke, 447, 569. 
 King V. Clay, 461. 
 King V. Goodwin, 565. 
 King V. Harter, 258. 
 
 King V. Hubbell, 20, 43. 58. I3S- 
 
 King V. Humphreys, 246. 
 
 King V. Kenan, 123. 
 
 King V. King, 481. 
 
 King V. Ivyman, 519, 520. 
 
 King V. Malone, 241. 
 
 King V. Marissal, 37, 206. 
 
 King V. Moon, 38, 49. 54, 55, 57, 591, 
 
 593, 596, 598- 
 King V. Moore, 232. 
 King V. Munzer, 272. 
 King V. Payan, 552. 
 King V. Phillips, 188. 
 Ring V. Poole, 573, 584. 
 King V. Russell, 33, 55, 56, 58, 59, 
 
 213, 281. 
 King V. Tharp, 333, 570, 611. 
 King V. Thompson, 295, 302. 
 King V. Trice, 401, 491, 546. 
 King V. Watson, 365, 401, 438. 
 King V. Wilcox, 336, 603, 609, 610. 
 Kingdome v. Bridges, 222. 
 Kinghorn v. Wright, 330, 479. 
 Kingsbury v. Wild, 447. 
 Kingston v. Koch, 356, 372. 
 Kinnard v. Daniel, 313, 544, 585. 
 Kinnard v. Thompson, 346. 
 Kimemon v. Miller, 447. 
 Kinney v. Cay, 160. 
 Kintner v. Jones, 418. 
 Kipp V. Hanna, 286, 289, 290, 330, 
 
 334, 603. 
 Kipp V. Lamoreaux, 108, 590. 
 Kirby v. Bruns, 254. 
 Kirby v. IngersoU, 362. 
 Kirby v. Ry. Co., 558. 
 Kirby v. Schooumaker, 397, 399. 
 Kirkbride, in re, 487. 
 Kirkpatrick v. Casson, 515. 
 Kirksey v. Snedecor, 337, 472. 
 Kirksville Sav. Bank. v. Spangler, 
 
 258. 
 Kirtland v. Snow, 66, 139, 151, 190, 
 
 200. 
 Kirwan v. Daniel, 347. 
 Kissam v. Edmondson, 202, 203, 
 Kitchell V. Bratton, 166. 
 Kitchen v. McCloskey, 56. 
 
TABLE OF CASES CITED. 
 
 Ivii 
 
 [rkfbrbncbs arb to pagbs.] 
 
 .Kitchen v. R. R. Co., iga. 
 Kitchen v. Reinsky, 399. 
 Kitchin v. Dixon, 519. 
 Kittering v. Parker, 53, 550, 553, 
 
 S96. 597- 
 Kittredge v. Sumner, 206. 
 Klapp V. Shirk, 370, 386. 
 Klein v. Horine, 548. 
 Klein v. Richardson, 39. 
 Kleine v. Katzenberger, 131, 136. 
 Kline v. McDonnell, 253. 
 Klosteman v. Vader, 218. 
 Kluender v. Lynch, 191, 262. 
 Knapp V. Alvord, 113. 
 Knapp V. Day, 20, 21. 
 Knapp V. Smith, 261, 262, 263. 
 Knapp V. White, 469. 
 Kuauth V. Bassett, 397, 467, 533. 
 Kneeland v. Cowles, 221, 402, 411. 
 Knevan a. Specker, 482. 
 Knickerbocker Life Insurance Co. 
 
 V. Weitz, 250. 
 Knight V. Capito, 41, 43, 56, 585. 
 Knight w. Forward, 113, 581. 
 Knight z/. Packer, ) ,q„ .„_ „. 
 Kni|ht z-. Parker, ^380,407,414. 
 
 Knight V. Waterman, 409. 
 
 Knower v. Barnard, 513. 
 
 Knower v. Caddeu Clothing Co., 
 
 210. 
 Knowlton v. Hawes, 58. 
 Knowlton v. Moseley, 583. 
 Knox V. Hunt, 49, 50, 227, 492. 
 Knox V. Moses, 20, 27. 
 Knox V. Summers, 515. 
 Knox V. Turner, 250. 
 Koehler v. Black River Falls Iron 
 
 Co., 192. 
 
 Kohn V. Clement, 374. 
 
 Koster v. Hiller, 290. 
 
 Kratzer v. Busch, 124, 129. 
 
 Kreese v. Prindle, ) r 
 
 Kruse v. Prindle, ) 373. 370. 395- 
 
 Kreth v. Rogers, 125, 156. 
 
 Kroesen v. Seevers, 177, 179. 
 
 Kruschell v. Anders, 126. 
 
 Kuevan v. Specker 611. 
 
 Kuhn V. Graves, 113. 
 
 Kuhn V. Gustafson, 37. 
 Kuhn V. Mack, 132. 
 Kuhn V. Stansfield, 322. 
 Kuhn V. Weil, 474, 
 Kulage V. Schueler, 257. 
 Kurner v. O'Neil, 397. 
 Kurtz V. Miller, 576, 591. 
 Kuykendall v. McDonald, 46, 114, 
 
 115, 117. ii9r 189, 197, 210, 218. 
 Kyger v. Skirt Co., 191, 206. 
 Kyle V. Harveys, 419. 
 La Bella Wagon Works v. Tidball, 
 
 201. 
 Laclede Bank v. Schuler, 353. 
 Lachlen v. Wright, 124. 
 Lachman v. Martin, 263. 
 La Crosse R. R. Co. v. Seeger, 462. 
 Ladd V. Grtswold, 271, 
 Ladd V. Newell, 56. 
 Ladd V. Wiggins, 42, 336, 485. 
 Ladnier v. Ladnier, 20. 
 Lady Cox's Case, 237. 
 Lady Lambert's Case, 80, 167. 
 Lafayette Co. Bank v. Metcalf, 114. 
 Laidlow v. Gilmore, 45, 189, 200. 
 Laing v. Cunningham, 263, 265. 
 Laing v. Perrott, 129. 
 Laird v. Davidson, 190, 254. 
 Lakew. Morris. 142, 144, 155. 
 Lake v. Tyree, 16. 
 Lamar v. Poor, 185. 
 Lamb v. Fries, 508, 
 Lamb v. Stone, 523. 
 Lampert v. Haydel, 244. 
 Lampson v. Arnold, 183, 340, 357, 
 
 372, 374- 
 Lanahan v. Latrobe, 469. 
 Lancaster Savings Inst. v. Wiegandj 
 
 514- 
 Land v. Jefiries, 103, 139, 154, 173, 
 
 247, 591- 
 Landecker v. Houghtaling, 575. 
 Landeman v. Wilson, 416. 
 Landis v. Evans, 513. 
 Landmann v. Glover, no. 
 Lane v. Kingsberry, 302. 
 Lane v. Lutz, 467, 468, 565. 
 Lane v. Sparks, 474. 
 
Iviii 
 
 TABLE OF CASES CITED. 
 
 [rbferencbs are to pages.] 
 
 I^ane v. Starr, 125, 131. 
 I,aney v. Laney, 447. 
 Lang V. Lee,: 35, 132. 
 Lang V. Stockwell, 225. 
 Langdon v. Thompson, 388, 425. 
 Langert v. Brown, 125, 132. 
 Langford v. Fly, 33, 51. 59- 502, 506, 
 Lang Syne Gold Mining Co. v. 
 
 Ross, 558. 
 Langton v. Tracey, 347. 
 Lanier v. Driver, 343, 407. 
 Lansing v. Eaton, 566. 
 Lansing v. Wordsworth, ) 
 Lansing v. Woodworth, j •'V' ^ ' 
 
 374. 407, 410. 
 Lantz V. Worthington, 516. 
 Larkin v. McMuUin, 168, 327. 
 Larkin v. Mead, 40, 
 Larrabee v. Franklin Bank, 193, 
 
 374- 
 Lasher v. Stafford 40, 269. 
 Lassel v. Tuckner, 362, 397. 
 Lassels v. Cornwallis, 256. 
 Lassiter ».,Bus^, 156. 
 Lassiter v, Golej,,447. 
 Li^Slter v. Bavis, 206. 
 Lathrop v. Bampton, 353. 
 Lathrop v. Clayton, 108, III, 172. 
 Lathrop Hatton Lumber Co. v. 
 
 Bessemer Sav. Bank, 188. 
 Latimer v. Batson, 38, 92, 105, 121^ 
 
 170. 
 Latimer v. Glenn, 320. 
 Laughlin v. Ferguson, 157, 164, 166, 
 
 168, 169, 170. 
 Laughlin v. Nat. Mut. Bond and In. 
 
 Co., 16. 
 Laughton v. Harden, 285, 543, 548. 
 Laurence v. Davis, 342, 343, 344. 
 Laurence v. Lippincott, 290. 
 Laurence v. Lippincott, 476, 477. 
 L'Avender v. Thomas, 196. 
 Law V. Bagwell, 347. 
 Law V. London Policy Co. 247. 
 Law V. Mills, 402, 509., 
 Law V. Payson, 251, 484, 568, 570. 
 Law V. Smith, 39, 58, 556. 
 Lawrence v. Bank, 479, 543, 600. 
 
 Lawrence v. Burnham, 151, 156. 
 Lawrence v. Neff, 403. 
 Lawrence v. Norreys, 559. 
 Lawrence v. Tucker, 239, 240, 587. 
 Lawson v. Ala. Warehouse Co., 41. 
 Lawson v. Funk, 23. 
 Lawson v. Moorman, 570. 
 Lawton v. Gordon, 448. 
 Lawton v. Levy, 529, 530. 
 Lay V. Neville, 141, 172, i74- 
 Lay V. Seaye, 221. 
 Layson v. Rowan, 341, 355, 378, 379, 
 
 392, 401. 
 LeGierse v. Whitehurst, 494. 
 LeGrand v. Eufala Nat. Bank, 492. 
 LePrince v. Guillemot, 442. 
 LeSaulnier v. Krueger, 321. 
 Lea's, Appeal, 438. 
 Leach v. Fowler, 36. 
 Leach v. Francis, 206. 
 Leach v. Kelsey, 484. 
 Leach v. Leach, 321. 
 Leach v. Shelby, 543, 587. 
 Leach v. Williams, 515. 
 
 Leadman v. Harris, 25, 33, 52, 53, 
 195. 223. 
 
 Leasure v. Colburn, 33. 
 
 Leath v. Uttley, 159. 
 
 Leather Cloth Co. v. American 
 Leather Cloth Co., 351. 
 
 Leavitt w. Blatchford, 221. 
 
 Leavitt v. La Force, 212. 
 
 Leavitt v. Leavitt, 302. 
 
 Lechmere v. Earl, 234. 
 
 Ledyard v. Butler, 495, 496, 497. 
 
 Lee V. Abbe, 490, 491; 
 
 Lee V. Brown, 466. 
 
 Lee V. Figg, 207. 
 
 Lee V. Plannagan, 60, 189. 
 
 Lee V. Green, 367. 
 
 Lee V. Hollister, 320, 507. 
 
 Lee V. Hunter, 50, 218, 471. 
 
 Lee V. Huntoon, 155, 181, 487. 
 
 Lee V. Lamprey, 578, 585. 
 
 Leech v. Shantz, 141, 169. 
 
 Leeds v. Sayward, 341. 
 
 Legard v. Johnson, 317, 319. 
 
 Leggett V. Humphreys, 233. 
 
TABLE OF OASES CITED. 
 
 lix 
 
 [reperbncbs arb to pages.] 
 
 Leggett V. Oil Co., 557. 
 Leggettt/. Standard Oil Co., 558. 
 Legro V. Lord, 257, 270. 
 Lehigh Co. v. Field, 245. 
 Lehigh Iron Co's Estate, 360. 
 Lehman v. Bentley, 241. 
 Lehman, Durr and Co. v. Van 
 
 Winkle, 39. 
 Lehmer v. Herr, 380, 384, 392, 408, 
 
 577- 
 LeinkaufE v. Trenkle, 51. 
 Leich V. Dee, 492. 
 Leitch B. HoUister, 221, 411. 
 Leland v. CoUver, 129. 
 Lemay v. Bibeau, 469, 473. 
 Lemoine v. Dunklin County, 557. 
 Lennard's, Appeal, 475, 492. 
 Lenox v. Notrebe, 461. 
 Lentilhon v. MofEatt, 349, 427, 440, 
 
 541. 
 Leonard v. Bacon, 503. 
 Leonard v. Baker, 38, 154, 169. 
 Leonard v. Frocheimer, 551. 
 Leopold V. Silverman, 124, 130. 
 Lippig V. Bretzel, 56. 
 Lerow v. Wilmarth, 285, 601. 
 Lesem v. Herriford, 112, 113, 147. 
 Leshby v. Gardner, 446. 
 Leshey v. Joyner, 260, 266. 
 Lester v. Abbott, 397. 
 Leupold V. Krause, 611. 
 Levering v. Norvell, 298, 329. 
 Levy V. Adler, 371. 
 Levy V. Wallis, 515. 
 Levy V. Walsh, 124. 
 Levi V. Welsh, 210. 
 Lewis V. Adams, 103, 105. 
 Lewis V. Agee, 173. 
 Lewis V. Carperton, 47, 318, 321, 448, 
 
 488. 
 Lewis v. Castleman, 448. 
 Lewis V. Glenn, 360. 
 Lewis V. Lamphere, 269, 533. 
 Lewis V. Love, 33, 49, 50, 58, 336, 
 
 448. 
 Lewis V. McCabe, 158. 
 , Lewis V. Rice, 20. 
 Lewis V. Smith, 515. 
 
 Lewis V. Whittemore, 151, 187. 
 Lewis V. Wilcox, 143, 580. 
 Lewiston Nat. Bank v. Martin, 123, 
 
 128. 
 Lewkner v. Freeman, 38, 187, 327, 
 
 502, 526. 
 Lichtenberg v. Herdtfelder, 529. 
 Lichy V. Perry, 611. 
 Liddle v. Allen, 207, 
 Liebes v. StefEey, 105. 
 Lillard v. McGee, 9, 33, 36, 49, 502, 
 
 525, 526. 
 Lillie V. McMillan, 596, 597. 
 Lima Match Works v. Parsons, 159. 
 Lincoln v. McLaigler, 290. 
 Lincoln v. Quynn, 160. 
 Lincoln v. Sav. Bank v. Ewing, 138. 
 Lindle v. Neville, 44, 233. 
 Lindon v. Sharp, 105. 
 Lindsay v. Delano, 570. 
 Linn v. Wright, 18, 354, 387, 596. 
 Lins V. Lindhardt, 325. 
 Lininger v. Raymond, 369. 
 Linton v. Butz, 177. 
 Lionberger v. Baker, 492, 494, 496, 
 
 497- 
 Lipperd v. Edwards, 206, 275, 545. 
 Lippincott v. Barker, 438. 
 Lishy V. Perry, 257. 
 Lister v. Turner, 529. 
 Lister v. Simpson, 124, 130. 
 Litchfield v. Pelton, 370, 468, 553. 
 Litchfield v. White, 426. 
 Little V. Chadwick, 352, 353. 
 Little V. Eddy, 204. 
 Littleton v. Littleton, 326. 
 Livermore v. Boutelle, 336, 503. 
 Livermore v. Jenckes, 507, 509. 
 Livermore v. McNair, 199. 
 Livermore v. Northrup, 231, 381, 
 
 387, 392. 577- 
 Livingston v. Bell, 438, 440. 
 Livingston ». Littell, 121. 
 Livingston v. Mclnlay, 240. 
 Livingston v. Wright, 273. 
 Lloyd V. Bunce, 330. 
 Lloyd V. Fulton, 286, 300, 302, 315. 
 Lloyd V. Williams, 57, 59, 188, 198. 
 
Ix 
 
 TABLE OF CASES CITED. 
 
 [referbnces are to pages. J 
 
 Ivobstein v. I,ehn, 195. 
 Lockard v. Nash, 330, 555. 
 Lockett's adm. v. James, 481. 
 Lockett V. James, 611. 
 Lockett V. Robinson, 351. 
 Lockerson v. Stillwell, 447, 45i- 
 Lockhart v. Beckley, 253, 290, 327, 
 
 596- 
 Lockhart v. Wyatt, 344, 346. 
 Ivockwood V. Harding, 290. 
 Lock-wood V. Nelson, 313. 
 Lockyer v. Dehart, 290. 
 Lodge V. Samuels, 124. 
 Loeb V. Pierpont, 362. 
 Loeffes v. Lewen, 315. 
 Loeschigk v. Baldwin, 370. 
 Loeschigk v. Hatfield, 233, 326, 330, 
 
 334- 
 Loeschigk z/. Jacobson, 394. 
 Logan V. Anderson, 395. 
 Logan V. Brick, 498. 
 Logan V. Logan, 123, 531. 
 Loker V. Haynes, 596. 
 Look V. Comstock, 143. 
 Loos z|. Wilkinson, 371, 539, 603, 605, 
 
 609. 
 Lombard v. Oliver, 594. 
 London v. Martin, 195, 196. 
 London v. Parsley, 360, 380. 
 Long z/. Hines, 126. 
 Long V. Knapp, 173, 174. 
 Long V. Wright, 448. 
 Longley v. Daly, no, 141. 
 Loomis V. Smith, 191. 
 Loomis V. Tifft, 535, 536. 
 Lord V. Fisher, 189. 
 Lord V. Poor, 266. 
 Loring v. Dunning, 44, 598. 
 Loring v. Vulcauizeil Gutta Percha 
 
 Co., 361. 
 Lormore v. Campbell, 320, 330, 581. 
 Lottf . De Graffenreid, 221, 554, 560. 
 Lottiidge V. McLean, 49. 
 Louthain v. Miller, 128. 
 Loughbridge v. Bowland, 581. 
 Louisiana Sugar Refining Co. v. 
 
 Harmon, 28. 
 Love V. Geyer, 538. 
 
 Love V. Mickals, 448. 
 
 Lovejoy v. Irelan, 543. 
 
 Lovelace v. Webb, 240. 
 
 Lovick V. Crowder, 514, 516, 517- 
 
 Loving Pub. Co. v. Johnson; 160. 
 
 Low V. Carter, 221, 321. 
 
 Low V. Graydon, 201, 395, 438. 
 
 I<ow V. Marco, 254, 525, 
 
 Low V. Wortman, 37, 40. 
 
 Lowman v. Sheets, 582. 
 
 Lowry v. Coulter, 196. 
 
 Lowry v. Fisher, 290, 332, 481, 507. 
 
 Lowry V. Howard, 36, 37, 214. 
 
 Lowry v. Orr, 474. 
 
 Lowry V. Pinson, 208, 216, 502. 
 
 Lowrie v. Stewart, 187. 
 
 Lucas V. Birdsey, 153. 
 
 Luckenbach v. Brickenstein, 174, 
 
 484. 
 Luco V. De Tore, 557. 
 Ludden v. Hazen, 246. 
 Ludlow V. Hurd, 63, 145, 152. 
 Ludwig V, Fuller, 156. 
 Ludwig V. Highley, 182. 
 Luers v. Brunges, 322. 
 Luff V. Horner, 223. 
 Luke V. Billers, 465. 
 Lukins v. Aird, 23, 225. 
 Lund V. Equitable Life A. Society, 
 
 214. 
 Lupton V. Cutter, 183, 341, 342. 
 Lush V. Wilkinson, 289, 294, 334. 
 Lutton V. Hesson, 585. 
 Lyman v. Cessford, 326, 327, 328, 
 
 330, 593- 
 Lyman «>. Place, 262, 549. 
 Lynch v. Raleigh, 326, 337, 536. 
 Lynch v. Roberts, 539. 
 Lynch v. Welsh, 479, 600. 
 Lynde v. McGregar, 43, 254, 484, 
 
 583. 576. 
 Lynde v. Melvin, 179. 
 Lyndon v. Belden, 142. 
 Lynez/. Bank of Ky., 182, 281,, 289, 
 
 292, 318,321,327,330,333. 
 Lynn v. Le Gierse, 477. 
 Lyon V. Bank of Kentucky, 286. 
 Lyon V. Boiling, 266. 
 
TABLE OF OASES CITED. 
 
 Ixi 
 
 [rbfekences are to pages.] 
 
 Lyon V. Council Bluffs Savings 
 
 Bank, 128. 
 Lyon V. Haddock, 236. 
 Lyon V. Robbins, 475, 565. 
 Lyon V. Rood, 209. 
 Lyon V. Yates, 464. 
 Lyon V. Zimmer, 393. 
 Lyons v. Leahy, 211. 
 Lyons v. Murray, 536. 
 Lyons v. Platner, 422. 
 Lyons v. Roacli, 569. 
 Lyons Thomas Hardware Co. v. 
 
 Perry Stove Mfg. Co., 192. 
 Lyons Thomas Hardware Co. v. 
 
 Perry Stove Co., 193. 
 Lyte V. Perry, 7. 
 Maack v. Maack, 184. 
 Mayberry v. Shisler, 410, 507. 
 Macdona v. Swiney, 89, 91, 105, 136. 
 Macintosh v. Corner, 368, 391, 392. 
 Mack V. Story, 159. 
 Mackall v. Casilear, 557, 558. 
 Mackason's Appeal, 256. 
 Mackay v. Douglass, 21, 282, 295, 
 
 327. 328. 
 Mackellar v. Pillsbury, 108. 
 Mackie v. Cairns, 349, 372, 375, 405, 
 
 488. 
 Mackie v. Herbertson, Appeal, 308. 
 Mackie v. Herbertson, 308, 309. 
 Macomber v. Parker, 246. 
 Macomber v. Peck, 40, 225. 
 Madden v. Day, 296, 327, 332, 333. 
 Maenuel v. Murdock, 398, 418, 424, 
 
 426, 442, 443. 
 Magee v. Carpenter, 166. 
 Magee v. Raiguet, 196. 
 Magirlz;. Magirl, 41. 
 Magnes v. Atwater, 170. 
 Magniacz/. Thompson, 305, 312,313, 
 
 314- 
 Magovern v. Richards, 185. 
 Maguire v. Nicholson, 314. 
 Mahany v. Lazier, 567. 
 Maher v. Bovard, 232, 446. 
 Mahoney v. Hunter, 229. 
 Maiders v. Culver, 484, 564. 
 Main v. Lynch, 28, 408. 
 
 Mair v. Glennie, 176. 
 
 Major 2/. Buckley, 212. 
 
 Major V. Hill, 356. 
 
 Malcom v. Hall, 400. 
 
 Malcolm v. Hodges, 373, 441. 
 
 Maley v. Barrett, 465. 
 
 Malloneejy. Horan, ) o, .0- 
 Malloneyz/. Horan, p°^' ^°^- 
 
 Malone v. Hamilton, 167, 221. 
 
 Maloney v. Bewley, 269. 
 
 Mamlock v. White, 465, 578. 
 
 Manchester v. McKee, 527, 534. 
 
 Manchester!'. Smith, 266. 
 
 Manchester v. Tibbetts, 231. 
 
 Maddel v. Peay, 371, 412, 585. 
 
 Manderbach v. Mock, 262. 
 
 Manders v. Manders, 288, 289, 334. 
 
 Mandeville v. Avery, 124, 130 131, 
 
 188. 
 Maney v. Killough, 119, 166. 
 Mangum v. Finucane, 191, 200, 324. 
 Mangum v. Hamlet, 465. 
 Manhattan Brass Co, v. Webster 
 
 Glass Co., 125, 127, 130, 191. 
 Manhattan Co. v. Evertson, 475, 
 
 481,492. 
 Manhattan Co. v. Osgood, 292, 295, 
 
 501, 521, 584, 585. 
 Madly, In re, 114, 133, 135, 136- 
 Mann v. Flower, 124, 484. 
 Mann v. Whitbeck, 374, 424, 425. 
 Manny v. Logan, 340. 
 Manning v. Beck, 185. 
 Manning v. Reilly, 20. 
 Manning v. Riley, 315. 
 Mannix v. Purcell, 352, 358. 
 Mansfield v. Dyer, 497. 
 Mansir v. Crosby, 575. 
 Manton v. Moore, 152, 155, 172. 
 Maple V. Burnside, 128. 
 Maples V. Burnside, 20. 
 Maples V. Maples, 167, 187. 
 Maples V. Snyder, 460. 
 Marbury v. Brooks, 198, 341, 359, 
 
 371. 372. 401, 403- 
 
 Marcy ®. Clark, 503. 
 
 Marden v. Babcock; 20, 234, 585. 
 
 Marion Safe Co. v. Norton, 159. 
 
Ixii 
 
 TABL^ OF OASES OITEU. 
 
 [references are to pages.] 
 
 Marks v. Crow, 21, 27. 
 
 Marks v. Hill, 132, 398, 408, 411, 
 
 419, 420. 
 Marks v. Mullen, 131. 
 Marlatt v. Warwick, 45?. 
 Marlow v. Orgill, 59, 197. 
 Marmon v. Harwood, 21, 286. 
 Maroney, in re, 21. 
 Marquam v. Sengfelder, 189. 
 Marquette Mfg. Co. v. Jeffery, 159. 
 Marquise v. Felsenthal, 40. 
 Marr v. Rucker, 521, 556. 
 Marriott v. Givens, 44, 60, 222, 274, 
 
 486, 525, 605. 
 Marsh v. Armstrong 493. 
 Marsh v. Bennett, 398, 431. 
 Marsh v. Davis, 269, 574. 
 Marsh v. Fuller, 333. 
 Marsh v. Hampton, 582. 
 Marsh v. Lawrence, 165. 
 Marshall v. Croon, 45, 56, 57, 58, 
 
 506, 554, 603. 
 Marshall v. Green, 50, 53, 58. 
 Marshall v. Hutchinson, 203, 321. 
 Marshall v. Marshall, 253, 527. 
 
 Marshall v. McDaniel, 319, 320. 
 
 Marshal v. Morris, 311, 467. 
 
 Marshall v. Whitney, 253. 
 
 Marston v. Baldwin, 159. 
 
 Marston v. Brackett, 448. 
 
 Marston v. Coburn, 341, 356. 
 
 Marston v. Marston, 336, 474. 
 
 Marston v. Vultee, 29, 135. 
 
 Martel v. Somers, 257, 493, 494, 556, 
 611 
 
 Martin Brown Co. v. Siebe, 185. 
 
 Martin v. Bolton, 448. 
 
 Martin v. Cowles, 490, 491. 
 
 Martin v. Duncan, 189. 
 
 Martin v. Evans, 289. 
 
 Martin v. Gray, 557. 
 
 Martin v. Hill, 507. 
 
 Martin v. Kennedy, 383. 
 
 Martin v. Lincoln, 302. 
 
 Martin v. Maddox, 124. 
 
 Martin v. Martin, 447, 451. 
 
 Martin v. Mathiot, 157. 
 
 Martin v. Michael, 531. 
 
 Martin v. Ogden, 123, 127. 
 Martin v. Olliver, 288, 330. 
 Martin v. Podger, 84, 105, 465. 
 Martin v. Potter, 511. 
 Martin v. Rexroad, 207. 
 Martin v. Root, 269. 
 Martin v. Smith, 558, 559. 
 Martin v. Walker, 472, 502, 505, 
 
 545. 549- 
 Martin v. Warner, 253. 
 Martindale v. Booth, 89, 93, 105, 120, 
 
 165, 166. 
 Martyn v. McNaniara, 289, 294, 497. 
 Mason v. Baker, 33, 448, 459. 
 Mason v. Bogg, 395. 
 Mason v. Bond, 103. 
 Mason v. Franklin, 41, 43. 
 Mason v. Rogers, 328. 
 Massie v. Engart, 58, 210, 212. 
 Master v. Webb, 120. 
 Mateer v. Hissim, 281, 289, 300, 490, 
 
 491, 498. 
 Mathes v. Dobschuetz, 256. 
 Matson v. Melchor, 212, 292. 
 Matter v. Potter, 413. 
 Matthai v. Heather, 326. 
 Matthews v. Buck, 455, 483. 
 Matthews v. Feaver, 252, 304, 527. 
 Matthews v. Jordan, 229, 302. 
 Matthews ®. Poultney, 354, 370, 371. 
 Matthews v. Reiuhart, 189,210,492, 
 
 493- 
 Matthews v. Rice, 235. 
 Matthews d. Torinus, 287. 
 Matthews v. Warne, 515, 518. 
 Mattingly v. Nye, 330, 570, 571. 
 Mattingly v. Walke, 53, 505. 
 Mattison v. Demarest, 16, 368, 396, 
 
 594- 
 Maughlin v. Tyler, ) , 
 Mauflin V. Tyler, \ S^^"' 4I7. 439. 
 
 444. 
 Mauldin v. Armistead, 346. 
 Mauldlin v. Mitchell, 70, 73, 162, 
 
 164, 180. 
 May V. First Nat'l Bank of Attle- 
 
 boro, 510. 
 May V. State Nat. Bank Ark., 20. 
 
TABLE OF CASES CITED. 
 
 Ixiii 
 
 [refbrencbs are to pages.] 
 
 May V. Tenney, 185. 
 
 Mayberry v. Neely 301. 
 
 Mayberry v. Shister, 511. 
 
 Mayer v. Clark, 105, 582. 
 
 Mayer v. Feig, 125, i:j8. 
 
 Mayer v. PuUiaiu, 414. 
 
 Mayer z/. Webster, 115. 
 
 Mayer v. Wood, 522. 
 
 Mayers v. Kaiser, 260, 261. 
 
 Mayfield v. Kilgour, 187, 191, 585, 
 
 587- 
 Maynard v. Cleaves, 244. 
 Mayor, Ex parte, 9, 311. 
 Mayou Benjamin, Ex parte, 272. 
 Mayon, Ex parte, 238. 
 Mays V. Rose, 540. 
 McAdams v. Mitchell, 253. 
 McAfee v. McAfee, 241. 
 McAfee v. Busbee, 145. 
 McAlisterz/. Honea, 188. 
 M'Allisterj'. Marshall, 374, 406, 408, 
 
 468. 
 McAlpine v. Sweetzer, 15. 
 McAiially v. O'Neal, 241, 293. 
 McAnnulty v. McAnnulty, 315. 
 McArthur v. Garman, 126. 
 McArthur v. Hoysradt, 567, 598. 
 McAuloy V. Earnhart, 577. 
 McBride v. Bohan, 343. 
 McBride v. Bohanan, 438. 
 McBride v. McClelland, 141. 
 McBride z). Thompson, 274, 582, 583. 
 M'Broom v. Rives, 23, 187. 
 McBurnie, £x parte, 306, 311, 312, 
 
 313- 
 McCabe v. Brayton, 583. 
 McCabe v. Snyder, 495. 
 MaCain v. Wood, 35, 585. 
 McCall V. Hinkley, 434, 436, 438. 
 McCallie v. Walton, 360, 418, 422. 
 McCalmont v. Lawrence, 530, 562. 
 McCanless v. Flinchum, 56. 
 McCarthy v. McDermott, 154. 
 McCarthy v. Miller, 126. 
 McCarthy v. McQuade, 112, 115. 
 McCartney v. Bostwick, 532, 533, 
 
 534- 
 
 McCartney v. Welch, 393. 
 McCaskle v. Amarine, 43. 
 McCasland v. Carson, 48. 
 McCaulay v. Rodes, 319, 546. 
 McCausland v. Ralston, 457. 
 McClelland v. Remsen, 221, 362, 
 
 411. 
 McClenachan's Case. 299. 
 M'Clenney, v. M'Clenney, 554, 
 McClenny v. Floyd, 458. 
 McClesky v. Leadbetter, 448. 
 McCloskey v. Cyphert, 266, 267. 
 McClune v. Cain, 245. 
 McClung V. Bergfield, 415, 418. 
 McClure v. Campbell, 510. 
 M'Clure v. Ege, 513, 515. 
 McClure v. Lancaster, 323. 
 McClurg V. Allen, 422. 
 McClurg V. Lecky, 375, 406, 408, 488. 
 McCole V. Loehr, 287, 295. 
 McColgan v. Hopkins, 401. 
 McComb V. Donald, 159. 
 McConihe v. Sawyer, 336, 597. 
 McConhell v. Barber, 231. 
 McConnell v. Brown, 35. 
 McConnell v. Dickson, 529. 
 McConnell v. Martin, 232, 293, 584. 
 McCord V. McCord, 583. 
 McCord V. Moore, 409. 
 McCorkle v. Hammond, 235. 
 McCormick v. Hyatt. 206. 
 McCormick v. Joseph, 595. 
 McCoy V. Boley. 125, 128. 
 M'Coy V. Reed, 515. 
 McCoy V. Watson, 541. 
 McCrassley v. Haslock, 43, 135, 600. 
 McCreary v. Skinner, 17. 
 M'Creery v. Pursley, 477, 496. 
 McCue V. Harris, 560. 
 McCuUoch V. Hutchinson, 9, 41, 42. 
 McCuIlock V. Doak, 52. 
 McCuUough V. Colby, 530. 
 McCullough V. Porter, 245. 
 McCullough v. Suramerville, 363, 
 
 397. 401. 
 McCully V. Shackhamer, 224, 
 MeCully v. Swackhammer, no. 
 
Ixiv 
 
 TABLE OF CASES CITED 
 
 [rbperencbs are to pages.] 
 
 McCutcheon's Appeal, 248. 
 McCutchen v. Peigne, | ., 
 
 McCutcheon z/. Peigne, \ 5'=.S4J.3'f3 
 
 McDaniels v. Colvin, 239. 
 McDermott v. Barnum, 246. 
 McDermott v. Blois, 535. 
 McDermott v. Eborn, 39, 123, 127. 
 McDona v. Swiney, 77. 
 McDonald v. Beach, 238. 
 McDonald v. Johnson, 477. 
 McDonald v. Kirby, 233. 
 McDonald v. Frost, 570. 
 McDonough v. Prescott, 163. 
 McDowell V. Cochran, 254, 544, 527, 
 
 536- 
 McDowell V. Goldsmith, 51, 506, 
 
 554, 555. 568, 571. 574. 575- 
 McDowell V. Rissell, 578. 
 McDowell V. Steele, 14, 18. 
 McElfatrick v. Hicks, 43, 576, 580. 
 McElwain v. Willis, 532, 546. 
 McElwee v. Sutton, 333. 
 M'Erwin v. Benning, 502. 
 McEvony v. Rowland, 59. 
 McFadden v. Mitchell, 44, 290. 
 McFadden v. Ross, 210. 
 McFarlan v. English, 142. 
 McFarland v. Bain, 267. 
 McFarland v. Birdsall, 410, 431. 
 McFarland v. Farmer, 245. 
 McFarland v. Goodman, 482. 
 McGavock v. Deery, 239. 
 McGay v. Keilback, 269. 
 IvfcGee v. Campbell, 463, 465. 
 McGhee v. Importers and Traders 
 
 Nat'l Bank, 105. 
 McGill V. Harman, 234, 600, 601. 
 McGinnis v. Curry, 318, 322. 
 McGintry v. Reeves, 585. 
 McGirr z/. Sells, 159. 
 McGowen v. Hoy, 165, 465. 
 McGregor v. Chase, 189. 
 McGuire v. Faber, 461. 
 McGuire v. Miller, 448. 
 Mcllhenny v. Todd, 357. 
 Mcllvaine v. Smith, 244. 
 Mcllvoy V. Kennedy, 52, 583, 584. 
 Mclnstry v. Tanner, 170. 
 
 Mclntire v. Benson, 426, 427- 
 Mcintosh V. Bethune, 51, 57- 
 Mcintosh V. Smiley, 127. 
 Mcintosh V. Wilson, 107. 
 M'Kaig V. Jones, 511. 
 McKay v. Shotwell, 125, 131. 
 M'Kee v. Gilchrist, 471, 475, 578, 
 
 605, 606. 
 McKee v. Gracelon, 163. 
 M'Kee v. Jones, 246. 
 McKenty v. Gladwin, 235. 
 McKibbin v. Martin, 16, 68, 144, 
 
 149, 150, 172, 173, 174. 
 M'Kiuleyz/. Combs, 342, 347. 529> 
 
 544,549, 587- 
 M'Kinney v. Rhoads, 386, 536, 537, 
 
 574- _ 
 McKinne'y v. Wade, 127. 
 McKinster v. Babcock, 41, 43, 587. 
 McKown V. Hunter, 594. 
 McLachlan v. Wright, 38. 
 McLane v. Johnson, 336, 448, 574. 
 McLaran v. Mead, 262. 
 Mclvaren v. Thompson, 206, 233. 
 Mclvaughlin v. Bank of Potomac, 
 
 25, 501, 507. 547. 569- 
 McLaughlin v. McLaughlin, 447. 
 McLaurie v. Partlow, 232, 320. 
 McLean v. Button, 227. 
 McLean v. Lafayette Bank, 19, 51. 
 McLean v. Morgan, 52, 502. 
 McLean v. Weeks, 305. 
 McLemore v. Kmickolls, ) 265, 290, 
 McLemore v. Nuckolls, f 506. 
 McLeod V. Evans, 353. 
 McLeod V. O'Neill, 118, 162. 
 McLure v. Ashby^ 548, 558, 559, 560. 
 McMahan v. Morrison, 182, 233. 
 McMarter v. Campbell, 270. 
 McMaster v. Campbell, 478, 539. 
 McMasters v. Edgar, 325. 
 M'Meekin v. Edmonds, 280, 304, 
 
 598, 607- 
 M'Menoray v. Ferrers, 402. 
 McMenomy v. Roosevelt, 187. 
 McMillan v. Knapp, 355, 401. 
 McMinn v. Whelan, 529, 531. 
 McMurtrie v. Riddell, 233. 
 
TABLE OF CASES CITED. 
 
 Ixv 
 
 [rbpbrknces are to pages.] 
 
 McMurtry v. Webster, 265. 
 McNaughtin v. Lamb, 536, 564. 
 McNeil V. Glenn, 35, 42, 49, 552, 
 
 587, 589- 
 M'Neal v. Smith, 517. 
 M'New V. Smith, 538. 
 McNutt t/. Hobson, 271. 
 McPherson v. Kingsbaker, 326. 
 McQuinnay v. Hitchcock, 53, 187. 
 McRea v. Branch Bank, 35, 57, 545. 
 
 553- 
 McRae v. Merrifield, 158. 
 McReynolds v. Dedman, 440. 
 McVeigh v. Baxter, 210. 
 McVicker v. May, 142, 163. 
 McWhorter v. Huling, 472, 477, 478. 
 Mc Williams v. Jenkins, 258. 
 Mc Williams v. Rodgers, 38, 187, 257. 
 Meacham v. Herndon, 135. 
 Mead v. Combs, 20, 485, 486, 603. 
 Mead v. Conroe, 120. 
 Mead v. Gardiner, 110. 
 Mead v. Gregg, 253, 33i- 
 Mead v. Noyes, 112, 141, 142, 147. 
 Mead v. Phillips, r2i, 358, 372, 378, 
 
 387, 392, 430, 586. 
 Meade v. Smith, 175, 190, 236. 
 Mean v. Hicks, 567. 
 Means v Dowd, 14. 
 Means v. Feaster, 25, 558, 559, 591. 
 Means v. Hapgood, 509, 511. 
 Mebane v. Mebane, 244. 
 Mechanic's Bank v. Dakin, 531. 
 Mechanic's Bank v. Gorman, 440. 
 Mechanic's Bank v. Taylor, 319. 
 Mechanics Nat'l Bank v. Burnet 
 
 Manuf. C, 276, 277. 
 Meeker v. Harris, 196, 202, 547. 
 Meeker v. Saunders, 342, 350, 354, 
 
 371, 379, 418. 
 Meeker v. Wilson, 156, 176. 
 Meggottz/. Mills, 61, 81, 83, 87, 156, 
 Mehlhop V. Pettibone, 21. 
 Meigs V. Dibble, 257. 
 Meixsell v. Williamson, 206. 
 Melick V. Varney, 59. 
 Mellen v. Ames, 461. 
 Mellon z/. Mulvey, 328, 329. 
 
 Melody v- Chandler, 136. 
 
 Melville v. Brown, 531. 
 
 Menton v. Adams, 202. 
 
 Mentz V. Haman, 513. 
 
 Menzeshesimer v. Kennedy, 374. 
 
 Mercer, Ex parte, 37. 
 
 Mercer v. Mercer, 446. 
 
 Mercer v. Miller, 324. 
 
 Merchant v. Bunnel, 262. 
 
 Merchants Bank v. Newton, 2o5, 
 209. 
 
 Merchants Nat. Bank v. Chapin, 18. 
 
 Merchants Nat. Bank, v. Paine, 537. 
 
 Merchants and M. Nat. Bank v. 
 Fisher, 590. 
 
 Merchants and M. Sav. Bank v. 
 Lovejoy, 126, 219. 
 
 Merchants and Miners Transporta- 
 tion Company v. Borland, 248. 
 
 Meredith v. Benning, 523. 
 
 Merrick v. Butler, 457, 458. 
 
 Merrick v. Henderson, 402. 
 
 Merrill z/. Dawson, 119, 165, 167. 
 
 Merrill v. Englesby, 349. 
 
 Merrell v. Johnson, 302. 
 
 Merrill v. Locke, 35, 36, 49, 56, 57, 
 182. 585. 
 
 Merrill v. Meachum, 336, 483, 574. 
 
 Merrill z/. Rinker, 161, 245, 246, 327, 
 
 Merrill v. Swift, 346. 
 
 Merrill v. Williamson, 52, 585. 
 
 Merritt v. Lyon, 168, 169. 
 
 Merritt v. Miller, 179, 180. 
 
 Merriwether v. Smith, 265. 
 
 Merry v. Bostwick, 45, 50, 58. 
 
 Merry v. Freraon, 543, 53^. 
 
 Mertz V. Watts, 236, 266, 267. 
 
 Merwin v. Austin, 351. 
 
 Meserve v. Dyer, 506. 
 
 Metcalf V. Van Brunt,; 347, 358, 426. 
 
 Met. , Bank v. Durant, 45, 57, 273, 
 276. 
 
 Met. Nat Bank z/. St. Louis') 
 Dispatch Co. U26 =;q8 
 
 Met. Bank v. St. L. Dis- f ^2°'550- 
 patch Co. ] 
 
 Metzger, in re, 504. 
 
 Meux V. Anthony, 529, 538. 
 
Ixvi 
 
 TABLE OF CASES CITED. 
 
 [rbfhrbnces are to pages.] 
 
 Meux V. Howell, 20, 365, 400. 
 Meyberg v. Jacobs, 210. 
 Meyer v. Gage, 128. 
 Meyer v. Gorham, 165. 
 Meyer v. Mohr, 297, 481. 
 , Meyer v. Simpson, 34. 
 
 Meyer v. Union Bag and Paper Co., 
 
 184. 
 Meyer's, in re, 504, 539. 
 Michael v. Gay, 217, 223, 550. 
 Michael v. Morey, 309. 
 Michie v. Planters' Bank, 513. 
 Middlecome v. Marlow, 218, 288, 
 
 304, 319- 
 Middleton v. Pollock, 34, 184- 
 Middleton v. Sinclair, 49, 58, 476. 
 Milburn v. Waugh, 124. 
 Miles V. Edelen, 170, 572. 
 Miles V. Williams, 247. 
 Miles V. WoodrufiE, 141. 
 Miller v. Babcock, 464. 
 Millard v. Hall, 162, 164. 
 Miller v. Browarsky,i6o. 
 Miller v. Byrah, 206. 
 Miller v. Conklin, 432, 438. 
 Miller z/. Dayton, 506, 532, 538. 
 Miller v. Desha, 290. 
 Miller v. Finn, 590. 
 Miller v. Fraley, 274, 551. 
 Miller v. Garman, 141, 143, 145, 156, 
 Miller v. Getz, 514. 
 Miller v. Hall, 542. 
 Miller v. Halsey, 408, 567. 
 Miller v. Howry, 233. 
 Miller v. Johnson, 330, 506, 570, 571. 
 Miller v. Jones, 135. 
 Miller v. Kirby, 204. 
 Miller v. Koertge, 462, 463. 
 Miller v. L/acy, 106, 177. 
 Miller v. Lockwood, 43, 102, 136, 
 
 239, 240. 
 Miller v. Mackenzie, 449, 540. 
 Miller v. Marckle, 459. 
 Miller v. Miller, 506,570, 571. 
 Miller v. Pancoast, 109, 119. 
 Miller v. Pearce, 289. 
 Miller v. Peck, 260. 
 Miller v. Sauerbier, 55, 241. 
 
 Miller v. Sherry, 475. 546, 564, 565, 
 
 566. 
 Miller v. Shreve, 130. 
 Miller v. Specht, 270. 
 Miller v. Stetson, 228, 410. 
 Miller v. Thompson, 290, 497. 
 Milller v. Tolleson, 317.476, 552, 
 
 605, 606. 
 Miller v. Wilson, 253, 296, 298, 326, 
 
 481. 
 Millett V. Pottinger, 57. 
 Millikin v. Hathaway, 370. 
 Millington v. Hill, 461, 468. 
 Mill River Association v. Claflin, 
 
 254. 
 Mills V. Argall, 349, 363. 
 Mills w. Block, 531- 
 Mills V. Camp, 139, 518. 
 Mills V. Carnley, 48, 370. 
 Mills V. Haines, 206. 
 Mills V. Howeth, 210, 591. 
 Mills V. Levy, 437. 
 Mills V. Mills, 229. 
 Mills V. Morris, 333. 
 Mills V. Thompson, 147, 148, 582. 
 Mills V. Walton, 115. 
 Mills V. Warner, 143, 144, 152, 153- 
 Milne v. Henry, 139, 144, 154. 
 Miner v. Phillips, 580, 589, 594. 
 Miner v. Warner, 227, 475, 502. 
 Minister v. Price, 113. 
 Minor v. Sheehan, 43. 
 Mitchell V. Beal, 22, 47, 119. 
 Mitchell V. Berry, 290. 
 Mitchell V. Byrns, 292. 
 Mitchell V. McKibbin, 199. 
 Mitchell V. Mitchell, 34, 36, 45, 59. 
 Mitchell V. Sawyer, 40. 
 Mitchell V. Seitz, 241. 
 Mitchell V. Stetson, 225. 
 Mitchell V. Stiles, 349, 390. 
 Mitchell V. Willock, 386. 
 Mittleburg v. Harrison, 237. 
 Mittnaclit v. Kelly, 124. 
 Mixell V. Lulz, 327, 330, 
 Moale V. Buchanan, 469. 
 Mobile Savings Bank v. McDonnell, 
 30. 581. 
 
TABLE OF CASES CITED. 
 
 Ixvii 
 
 [referbncbs are to pages.] 
 
 Mobley v. Letts, 128. 
 
 Moffatt V. Ingham, 346, 388, 564, 
 
 565. 
 Mofiatt V. M'Dowell, 401, 552. 
 Mohawk Bank v. Atwater, 280, 298, 
 
 530. 
 Moir V. Brown, 354, 358. 
 Molaska Mfg. Co. v. Steele, 40, 188, 
 
 221. 
 Moline Plow Co. v. Braden, 160. 
 Monaghan v. Longfellow, 114. 
 Monell V. Sherrick, 33, 45, 217. 
 Monroe v. Hussey, no. 
 Monroe v. May, 191, 257, 258, 320. 
 Monroe v. Smith, 294, 337, 472. 
 Monteith v. Bax, 20, 318, 322. 
 Montgomery v. Galbraith, 423. 
 Montgomery v. Hunt, 178. 
 Montgomery v. Kirksey, 47, 56, 57, 
 
 120. 
 Montgomery v. Wright, 511. 
 Moody V. Burton, 523. 
 Moody V. Carroll, 359, 370, 410, 413, 
 
 421, 423. 
 Moody V. Fry, 447. 
 Moog V. Benedicks, 44. 
 Moore v. Besse, 259. 
 Moore v. Blondheira, 329, 585. 
 Moore v. Bonnell, 511. 
 Moore v. Church, 508, 510. 
 Moore v. Collins, 356, 407, 410,411. 
 Moore v. Hinnant, 20. 
 Moore v. Horsley, 446. 
 Moore v. Kelley, 178. 
 Moore v. Kidder, 522. 
 Moore v. M' Duffy, 344. 
 Moore v. Meek, 458. 
 Moore v. Minerva, 447. 
 Moore v. Montelius, 107. 
 Moore v. Roe, 36. 
 Moore v. Rycault, 319. 
 Moore v. Sexton, 497. 
 Moore v. Shields, 578. 
 Moore v. Smith, 386. 
 Moore v. Spence, 290, 507. 
 Moore v. Tarlton, 605. 
 Moore v. Thompson, 457. 
 Moore v. Willett, 509. 
 
 Moore v. Williamson, 207, 210, 358, 
 
 371- 
 Moore v. Wood, 225, 228. 
 Moran v. Dawes, 522. 
 Moreland v. Atchison, 292, 548. 
 Morewood v. Wilkes, 502. 
 Morey v. Forsyth, 462. 
 Morgan z/. Alvey, 590. 
 Morgan z/. Ball, in. 
 Morgan v. Biddle, 175. 
 Morgan v. Bogue, 119, 221, 548. 
 Morgan v. Lones, 323. 
 Morgan v. M'Lelland, 292. 
 Morgan v. Potter, 316. 
 Morgan v. Wood, 210. 
 Moritz V. Hoffman, 302, 334, 506. 
 Morrill, Geo. P. /» re, 487. 
 Morrill v. Morrill, 520. 
 Morrill v. Sanford, 113. 
 Morris v. Allen, 274, 275, 276, 277, 
 
 278. , 
 Morris v. Devon, 131. 
 Morris v. House, 464. 
 Morris v. Morris, 447. 
 Morris v. Olwine, 395. 
 Morris v. Tillson, 187. 
 Morris Canal Co. v. Stearns, 37, 45, 
 
 S86. 
 Morrison v. Abbott, 257. 
 Morrison v. Atwell, 398, 425. . 
 Morrison v. Morrison, 227. 
 Morrison v. Oium', 109. 
 Morrow v. Reed, 113. 
 Morse v. Aldrich, 207. 
 Morse v. C. R. I. and P. Co., 160. 
 Morse v. Powers, 178, 180. 
 Morse v. Riblet, 20. 
 Morse z/. Slason, 195, 196. 
 Morse v. Steinrod, 201. 
 Morsellz'. Baden, 507. 
 Morss V. Purvis, 475. 
 Morton v. Ragan, 153, 173, 257. 
 Mosely v. Gainer, 187, 208. 
 Moseley v. Moseley, 448, 461. 
 Moser v. Claes, 127. 
 Moses V. Ranlett, 394. 
 Moss V. Dearing, 586. 
 Moss V. Humphrey, 409. 
 
Ixviii 
 
 TABLE OF CASES CITED. 
 
 [rbfbrehcbs arb to pagbs.] 
 
 Motley V. Downman, 352. 
 Motley V. Sawyer, 45, 321. 
 Mott V. Danforth, 501, 523. 
 Mott V. McNeal, 25, 153, 162. 
 Mountford v. Ranie, 505. 
 Mountford v. Taylor, 526. 
 Mower v, Hanford, 374, 377, 589. 
 Mowry's Appeal, 337. 
 Mowry v. Crocker, 509, 511. 
 Mowry v. Schroder, 523. 
 Moyer v. Dewey, 540. 
 Muchmore v. Budd, 221. 
 Muenks v. Bunch, 228, 236. 
 Mugge V. Ewing, 536. 
 Muhr V. Pinover, 409. 
 Muir V. Leitch, 516. 
 
 Mulford V. , 450. 
 
 Mulford V. Peterson, 524. 
 Mulford V. Shirk, 409. 
 Mulford V. Stratton, 272, 517. 
 Mulford V. Tunis, 477. 
 Mullanphy Savings Bank v. Lyle, 
 
 476. 
 Mullen V. Wilson, 327, 477. 
 MuUenneaux v. Terwilliger, 227. 
 Mullin v^ Hewett, 532. 
 Mulloy V. Paul, 556. 
 Munima v. Weaver, 288. 
 Muncie Nat. Bank v. Brown, 124. 
 Munson v. Arnold, 40. 
 Murphy v. Abraham, 232, 315, 316, 
 
 326. 
 Murphy v. Bell, 418. 423. 
 Murphy v. Braase, 107. 
 Murphy v. Hubert, 446, 451, 458. 
 Murphy v. Moore, 499. 
 Murphy v. Mulgrew, 106, 163. 
 Murray v. Buell, 353. 
 Murray v. Heard, 55. 
 Murray v. Jones, 495. 
 Murray v. Judson, 233, 393. 
 Murray v. McNealy, 125, 127, 250. 
 Murray v. Riggs, 186, 349, 373, 401, 
 
 405, 411, 431, 599, 606, 607. 
 Murtha v. Curley, 561. 
 Muse V. Chaney, 391. 
 Musselraan v. Kent, 526, 555, 556. 
 Mussey v. Noyes, 340, 373, 418, 430. 
 
 Mutual Accident Association v. 
 
 Jacobs, 352. 
 Mutual Ivife Insurance Co. v. 
 
 Sandfelder, 331. 
 Myers v. Fenn, 427, 554. 
 Myers v. Board of Education, 353. 
 Myers v. Harvey, 157, 170, 171. 
 Myers v. King, 292. 
 Myers v. Kinzie, 371, 552, 580. 
 Myers v. Leinster, 468. 
 Myers v. Sheriff, 561. 
 Myers v. Woods, 151, 152, I55- 
 Nadal v. Britton, 39. 
 Nadds V. Bardon, 557. 
 Nailer v. Young, 135, 357. 
 Nairn v. Prowse, 311. 
 Nance v. Nance, 255, 311. 
 Nash V. Bly, 177. 
 Nashville Trust Co. v. Fourth Nat. 
 
 Bank, 351. 
 Nat. Bank v. Whitmore, 202. 
 National Bank v. Hubbell, 351. 
 National Bank v. Insurance Co., 
 
 353- 
 
 National Bank v. Lovenberg, 131. 
 
 National Bauk v. Sackett, 363. 
 
 National Band v. Sprague, 189, 238, 
 253. 262, 326, 374, 499. 
 
 National Bank of the Republic v. 
 Hodge, 425. 
 
 Nat. Union Bank v. Nat. Mechan- 
 ics' Bank, 395, 397. 
 
 Naylor v. Baldwin, 327. 
 
 Neal V. Foster, 235. 
 
 Neal V. Peden, 582. 
 
 Neal V. Williams, 491. 
 
 Neale v. Day, 253, 489. 
 
 Neally v. Ambrose, 422. 
 
 Neate v. Latimer, 145. 
 
 Neece v. Haley, 143. 
 
 Neeley v. Wood, 448. 
 
 Neely v. Rood, 352. 
 
 Neely v. Watts, 583. 
 
 Nellis V. Clark, 445, 457. 
 
 Nelson v. Kinney, 190, 290. 
 
 Nelson 1). Smith, 58. 
 
 Neppach v. Jones, 558. 
 
 Nesbitt V. Digby, 48, 57. 
 
TABLE OF CASES CITED. 
 
 Ixix 
 
 [references are to pages.] 
 
 Neuffer v. Pardue, 240, 607. 
 Neusch V. Ottenburg, 578. 
 Neusbaum v. Klein, 534. 
 Neumann v. Calumet, 188. 
 Neustadt v. Joel, 529. 
 New Albany Ins. Co. v. Wilcoxson, 
 
 135- 
 New Albany R. R. Co. v. Hu£E, 402, 
 
 403, 410, 413. 
 New England Marine Ins. Co. v. 
 
 Chandler, 42, 223. 
 New Haven Steamboat Co. v. Van- 
 
 derbilt, 326. 
 New V. Sailors, 128. 
 Newberger v. Keim, 329. 
 Newdigate v. Lee, 196, 534, 564. 
 Newell V. Morgan, 253, 527, 564. 
 Newell V. Newell, 446. 
 Newell V. Wagness, 40, 223, 
 Newlin v. Garwood, 333. 
 Newlin v. Lyon, 582. 
 Newlin v. Osborne, 493. 
 Newman v. Bagley,. 233, 399, 509, 
 
 511- 
 Newman v. Cordell, 53, 54, 56, 207, 
 
 280, 591, 596. 
 Newman v. Kirk, 32. 
 Newman v. VanDuyne, 40. 
 Newman v. Willets, 482, 530. 
 Newsons v. Roles, 224. 
 Newsoa v. Douglass, 448. 
 Newson v. Lycan, 448. 
 Newstead v. Searles, 307, 308. 
 Nicholas v. Murray, 539. 
 Nicholas v. Ward, 326, 330. 
 Nicoll V. Mumford, 341, 343, 401. 
 NichoUs V. McBwen, 383, 401, 428. 
 Nichols V. Eaton, 242. 
 Nichols V. Patten, 590. 
 Nicholson v. Golden, 125. 
 Nicholson v. Leavitt, 19, i86, 378, 
 
 387, 397. 416, 422, 508, 561, 585. 
 Nickodemus v. Nickod'us, 451. 
 Nicol V. Crittenden, 20, . 54, 210, 
 
 212. 
 Nightingale v. Harris, 232, 391, 393, 
 
 408, 409, 438, 441, 442, 444. 
 Nimmo v. Kuykendall, 366. 
 
 Nims V. Bigelow, 319, 321. 
 
 Niolon V. Douglas, 184, 438, 567. 
 
 Nippe's Appeal, 288. 
 
 Nipp's, Appeal, 601. 
 
 Niver v. Best, 457, 458. 
 
 Nix V. Nix, 503. 
 
 Noble V. Coleman, 122. 
 
 Noble V. Hines, 548. 
 
 Noble V. Holmes, 465. 
 
 Noble V. Noble, 446. 
 
 Noble t/. Smith, 509, 511. 
 
 Nonotuck Silk Co. v. Flanders, 
 
 353- 
 Norcut V. Dodd, 251, 252, 294, 527, 
 
 567- 
 Norris v. Bradford, 245, 246. 
 Norris v. Haggin, 559. 
 Norris v. Lake, 41, iii. 
 Norris V. Morrill, 594. 
 Norris v. Norris, 457. 
 Norris z/. Persons, 207. 
 Nortclifie v. Warburton, 197, 214. 
 North V. Belden, 42, 
 North V. Bradway, 253, 545. 
 North V. Crowell, 120. 
 North V. Shearn, 257. 
 North American Insurance Co. v. 
 
 Graham, 536. 
 Northampton Bank v. Whiting, 29. 
 Norton v. Doolittle, 141, 164. 
 Norton v. Kearney, 349, 374, 377, 
 
 419, 580. 
 Norton v. Mallory, 231. 
 Norton v. Norton, 21, 281, 282, 283, 
 
 301. 304, 334, 447. 612. 
 Norton v. Pattee, 460. 
 Norton v. Soule, 260. 
 Norwegian Plow Co. v. Hanthorn, 
 
 17- 
 Nostrand v. Atwood, 341, 438. 
 Nouvet V. Bollinger, 504. 
 Noyes v. Hickok, 340. 
 Nulton V. Isaacs, 293. 
 Numan v. Kapp, 517. 
 Nunn V. Wilsmore, 218, 304, 316. 
 Nye V. Van Husan, 354, 397, 419, 
 
 424. 
 Nyman v. Berry, 360. 
 
Ixx 
 
 TABLE OF CASES CITED. 
 
 [refbrbnces arb to pages.] 
 
 O'Brien v. Browning, 563. 
 O'Brien v. Chamberlain, 120. 
 O'Brien v. Coulter, 292, 497, 536. 
 O'Brien Jewelry Co. z/. Volfer, 194. 
 O'Bryan v. Glenn, 473, 474. 
 O'Bryan v. Koontz, 292. 
 O'Connor v. Bernard, 21, 58, 281, 
 
 282, 283, 333, 334, 337, 492, 521. 
 O'Conner v. Ward, 13, 454. 
 O'Daniel v. Crawford, 285, 360. 
 O'Doherty v. Toole, 39. 
 O'Donnell v. 111. Steel Co., 185. 
 O'Donnell v. Segar, 257. 
 O'Gorman v. Comyn, 310. 
 O'l/eary v. Walter, 263. 
 O'Neil V. Chandler, 457. 
 O'Neil V. Orr, 218. 
 O'Neil V. Salmon, 399, 471. 
 Oakover v. Pettus, 34. 
 Ober V. Howard, 447. 
 Oberholszer v. Greenfield, 522, 529. 
 Oberholtzer v. Hazen, 56. 
 Ocean Nat'l Bank v. Hodges, 231. 
 Ocean Nat'l Bank v. Olcott, 533. 
 Ocoee Bank v. Nelson, 48, 189, 214, 
 
 226. 
 Odell V. Flood, 322, 323. 
 Oden V. Rippettoe, 576. 
 Odenheimer v. Hansom, 526, 527. 
 Odom V. Reddick, 361. 
 Odronaux v. Helis, 447. 
 Ogden V. Hesketh, 465. 
 Ogden V. Peters, 380, 382, 387, 580, 
 
 596- 
 Ogden V. Prentice, 462, 464, 472, 
 
 506. 
 Ogden State Bank v. Barker, 574. 
 Ogle V. Lichleberger, 608. 
 Ohio Coal Co. v. Davenport, 595. 
 Ohm V. Superior Court, 448. 
 Okie V. Kelly, 468, 470, 492. 
 Oliver Lee & Co's. Bank v. Talcott, 
 
 23. 407. 
 Oliver v. Eaton, 124. 
 Oliver v. King, 467. 
 Oliver v. Moore, 234, 269, 287, 562, 
 
 606. 
 Olihstead v. Herrick, 426. 
 
 Olmstead v. Mattison, 188, 189, 200. 
 Olney v. Conanicut Land Co., 189. 
 Olney v. Tanner, 371, 387, 420. 
 Ontario Bank v. Root, 561. 
 Oppenheimer v. Halft, 200. 
 Ord V. Massey, 114. 
 Orendorf v. Budlong, 496, 540. 
 Oriental Bank v. Haskins, 42, 49, 
 
 225- 483- 
 Orlabar v. Harwar, 105, 447. 
 Orr V. Gilmore, 581, 612. 
 Orton V. Orton, 131. 
 Osbprn v. Adams, 508. 
 Osborne v. Moss, 447, 463, 519. 
 Osborne v. TuUer, 162, 386. 
 Osborne v. Wilkes, 260, 555. 
 Osen V. Sherinan, 112. 
 Osgood V. Manhattan Co., 568. 
 Osgood V. Strode, 308. 
 Ostrander v. Fay, 130, 136. 
 Otis V. Brown, 582. 
 Otis V. Hall, 266. 
 Otis V. Sill, 112. 
 Otis V. SpenceY, 306. 
 Over V. Schiffling, 594. 
 Overman z/. Quick, 124, 137. 
 Overton v. Holinshade, 349, 356, 
 ■ 391. 409, 413- 
 Overton v. Morris, 35, 36, 52, 275. 
 Owen V. Arvis, 48, 52. 
 Owen V. Body, 420. 
 Owen V. Dixon, 448, 463, 464. 
 Owen V. Sharp, 451. 
 Owens V. Clark, 177. 
 Owens V. Hobble, 123, 127. 
 Oxford's Case, 20. 
 Pacheco v. Hunsacker, 152, 155. 
 Pace V. Pace, 244. 
 Paddock v. Bates, 395. 
 Page V. Broom, 347. 
 Page V. Carpenter, 153. 
 Page V. Dillon, 236. 
 Page V. Dixon, 593. 
 Page V. Goodman, 254, 525. 
 Page V. Kendrick,.330. 
 Page V. Smith, 402. 
 Page V. Weymouth, 351. 
 Paget V. Perchard, 91, 138, 145. 
 
TABLE OF CASES CITED. 
 
 Ixxi 
 
 [references are to pages.] 
 
 Paige V. O'Neal, 461, 465, 491. 
 Paine v. Hall's Safe and Lock Co. , 
 
 160. 
 Paine' v. Lester, 510. 
 Pairpont Mfg. Co. v. Phila. Optical 
 
 Co., 196. 
 Palmer v. Clarke, 513. 
 Palmer ». Giles, 373, 375, 438, 488, 
 
 495- 
 Palmer v. Henderson, 206. 
 Palmer v. Myers, 363. 
 Palms V. Shawano Co., 10. 
 Pancoast v. Gowan, 250. 
 Paper Works v. Willet, 11, 582. 
 Paris V. Vail, 157, 245. 
 Park V. Batty, 229. 
 Parke v. Harrison, 49. 
 Parke & Lacy Machinery Co. v. 
 
 Snoqualmie Mill Co., 17. 
 Parker v. Barker, 43, 45. 
 Parker v. Cain, 228. 
 Parker v. Conner, ) 
 Parker v. Connor, f ^"' 493- 
 Parker v. Crittenden, 212, 483, 491. 
 Parker v. Freeman, 476. 
 Parker v. Holmes, 607. 
 Parker v. Kendricks, 147, 149. 
 Parker v. Marvel, 147. 
 Parker v. Nichols, 229. 
 Parker v. Piattett, 42. 
 Parker v. Price, 354. 
 Parker v. Proctor, 301. 
 Parker v. Roberts, 15. 
 Parker v. Tiffany, 455, 483. 
 Parker v. Waugh, 515. 
 Parkhurst v. McGraw, 552, 561, 
 
 572, 593. 597- 
 Parkinson v. Hanna, 212. 
 Parkmau v. Welch, 293, 336, 492, 
 
 553- 
 Parlin and O. Co. v. Spencer, 188. 
 Parnell v. Howard, 187. 
 Parr v. Brady, 130. 
 Parr f. Saunders, 207. 
 Parridge v. Arnold, 266. 
 Parrish v. Danford, 35, 52, 206, 208. 
 Parrish v. Murphree, 293, 296, 297, 
 
 302, 332. 
 
 Parson v. McKnight, 34, 58. 
 
 Parstowe v. Weedon, 536. 
 
 Partee v. Matthews, 532. 
 
 Partelo v. Harris, 576. 
 
 Parton v. Gates, 232, 
 
 Partridge v. Gopp, 37, 38, 229, 251, 
 
 280, 283, 287, 305, 527. 
 Partridge v. Stokes, 51, 55, 332) SS^- 
 Partridge v. Wooding, 152. 
 Partyn v. Roberts, 314, 
 Parvin v. Capewell, 324. 
 Pary's Appeal, 515. 
 Pashby-Z'. Mandrigo, 292. 
 Pasley v. Freeman, 16. 
 Pa'ssmore v. Eldridge, 200. 
 Paton V. Westervelt, 516. 
 Patrick v. Ford, 502. 
 Patrick v. Patrick, 290, 321. 
 Patten v. Casey, 283, 296. 
 Patten v. Clark, 245. 
 Patten v. Smith, 94, 153, 162, 257. 
 Patterson v. Bodenhamer, 44. 
 Patterson v. Campbell, 253, 261, 526, 
 
 528. 
 Patterson v. McKinney, 230, 294, 
 
 561. 
 Patterson v. Whittier, 489. 
 Pattison v. Stewart, 48, 233, 236. 
 Patton V. Gates, 322, 323. 
 Patton ZJ. Hayter, 513. 
 Patton V. Leftwich, 364. 
 Paul V. Crooker, 164, 181, 337, 502. 
 Paul V. CuUum, 362. 
 Paulk V. Cooke, 297, 299, 322, 333. 
 PauUing v. Sturgis, 36, 182. 
 Pauncefoot v. Blunt, 446. 
 Pawley v. Vogel, 262, 263, 327, 331. 
 Paxton V. Boyce, 59, 597. 
 Paxton V. Smith, 109, 130. 
 Payne v. Able, 539. 
 Payne v. Bruton, 451. 
 Payne z/.' Craft, 274. 
 Payne v. Sheldon, 530, 547. 
 Payne v. Stanton, 332. 
 Peabody v. Landon, 124, 125, 132. 
 Peabody v. Maguire, 159. 
 Peacock, &. Monk, 226, 253, 587. 
 Peacock v. Terry, 451. 
 
Ixxii 
 
 TABLE OF CASES CITED. 
 
 [referbnces are to pages.] 
 
 Peacock v. Tompkins, 240, 407, 483, 
 
 564, 606. 
 Peak V. ElHcott, 353. 
 Peake, Ex parte, 271. 
 Peake v. Stout, 585, 594- 
 Pearce v. Beach, 386. 
 Pearce v. Jackson, 369, 409. 
 Pearpoint v. Graham, 353, 355, 438. 
 
 . 443- 
 Pearsall v. Smith, 558. 
 Pearson v. Cfosby, 438. 
 Pearson u. Forsyth, 574. 
 Pearson, In re, 292. 
 Pearson v. Maxfield, 538. 
 Pearson v. Rockhill, 387, 401. 
 Peaslee v. Barney, 447, 543- 
 Peat V. Powell, 292 
 Peay v. Sublet, 253, 527, 537. 
 Peck V. Brummagim, 302. 
 Peck V. Carmichael, 207, 280. 
 Peck V. Crouse, 574, 580. 
 Peck V. Ivand, 8, 32, 33, 36, 122, 208, 
 
 582. 
 Peck V. Merrill, 340. 
 Peck V. Peck, 315. 
 Peck V. Whiting, 387. 
 Pecot V. Armelin, 204. 
 Peebles v. Horton, 30, 38, 43, 54? 
 Peeler v. Peeler, 17. 
 Pehrson v. Hewitt, 226. 
 Peiffer v. Lytle, 320. 
 Peigne v. Snowden, 34, 45. 
 Peirce v. Merritt, 51, 149, 212, 213. 
 Pelham v. Aldrich, 506. 
 Pell V. Tredwell, 288, 327, 333, 467. 
 Pence v. Croan, 547, 548. 
 Pence v. Makepeace, 248. 
 Pendleton v. Gunston's Case, 503. 
 Pendleton v. Hughes, 294, 327, 501. 
 Pendleton v. Perkins, 537. 
 Penhall v. Elwin, 218, 230, 248, 304. 
 Penn v. Scholey, 575. 
 Penu V. Whiteheads, 262, 263. 
 Pennington v. Chandler, 170, 171, 
 
 273. 275- 
 Pennington v. Clifton, 254, 336, 525. 
 Pennington v. Seal, 482, 611. 
 Pennington v. Woodall, 233, 463. 
 
 Penny v. Taylor, 482. 
 
 Penrod v. Morrison, 523. 
 
 People V. Baker, 594. 
 
 People V. Farrell, 594, 595- 
 
 People V. Lacombe, 10. 
 
 People V. Utica Ins. Co., 10. 
 
 Peoples' Sav. Bank v. Bates, 129, 
 
 529- 
 Pepper v. Carter, 300, 330, 476. 
 Percy v. Cockrill, 558. 
 Perit V. Webster, 515. 
 Perkins v. Bradley, 502. 
 Perkins v. Hutchinson, 18. 
 Perkins v. Patten, 122. 
 Perrin, in re, 487. 
 Perry v. Calvert, 449. 
 Perry v. Corby, 185. 
 Perry v. Foster, 170. 
 Perry v. Hardison, 239. 
 Perry v. Pettingill, 196. 
 Perry v. Porter, 594. 
 Perry v. Shenandoah Bank, 124 132. 
 Perry v. Young, 160. 
 Person v. Monroe, 271. 
 Pervel v. Merritt, 36. 
 Peters v. Cunningham, 606. 
 Peters v. Leight, 420, 479. 
 Peters v. Smith, 157. 
 Peterson v. Brown, 446, 451. 
 Peterson v. Farnum, 254. 
 Peterson v. Kaigler, 114. 
 Peterson v. Mulford, 265, 266. 
 Peterson v. Williamson, 331, 556. 
 Petrikinz/. Davis, 342, 346, 354, 371 , 
 
 402, 421. 
 Pettibone v. Phelps, 488, 576. 
 Pettibone v. Stevens, 202, 225, 587, 
 
 605. 
 Pettingill v. Jones, 590. 
 Peltus V. Smith, 15, 208, 605. 
 Petty V. Petty, 232, 315. 
 Pfeifer v. Snyder, 548. 
 Pfirman v. Koch, 271. 
 Pharis v. Leachman, 536, 544, 603. 
 Phelps V. Curts, 21. 
 Phelps V. Foster, 522. 
 Phelps V. George's Creek Co., 594. 
 Phelps V. McNeely, 271. 
 
TABLE OF OASES OITED. 
 
 Ixxiii 
 
 [refbrencbs arb to pagbs.] 
 
 Phelps V. Morrison, 493. 
 Phelps V. Smith, 225, 290. 
 Phettiplace v. Sayles, 35, 43, 51, 59, 
 80, 182, 187, 198, 204, 446, 551, 
 
 593- 
 Phifer v. Erwin, 21, 27, 109. 
 Phillips V. Earner, 581. 
 Phillips V. Hall, 264. 
 Phillips V. Reitz, 107, 210. 
 Phillips V. Wesson, 526. 
 Phillips V. Wooster, 288, 466. 
 Phillips V. Zerbe Run Co., 221. 
 Phinizy v. Clark, 33, 42, 199. 
 Phippen v. Durham, 438, 442, 550. 
 Phipps V. Sedgwick, 298, 561, 609. 
 Pickens v. Hathaway, 462. 
 Pickett V. Garrison, 503. 1 
 
 Pickett V. Pickett, 524, 556, 557, 
 
 580. 
 Pickett V. Pipkin, 54, 207, 547, 570. 
 Pickstock V. Lyster, 197, 365, 367, 
 
 401. 
 Picqnet v. Swan, 302. 
 Pier V. Duff, 150, 581. 
 Pierce v. Brewster, 349, 422. 
 Pierce v. Chipman, 141, 177. 
 Pierce v. Hasbrouck, 461. 
 Pierce v. Hill, 480. 
 Pierce v. Hoffman, 577. 
 Pierce v. Jackson, 504. 
 Pierce v. O'Brien, 510. 
 Pierce v. Partridge, 486. 
 Pierce v. Rehfuss, igg. 
 Pierce v. Thompson, 318, 319. 
 Pierce v. Wimberly, 233. 
 Pierson v. Cox, 361. 
 Pierson v. Heisey, 330. 
 JPierson v. Manning, 357, 372, 373, 
 
 375. 410, 423. 488. 
 Pierson v. Tom, 206, 583. 
 PierstofE v. Jorges, 502. 
 Pike V. Bacon, 362, 368, 370. 
 Pike V. Miles, 257, 258, 302, 330. 
 Pike V. Pike, 519. 
 Pike V. Rhem, 302. 
 Pilling V. Otis, 17, 30, 32, 48. 
 Pillow V. Sentelle, 240. 
 Pillsbury v. Kingon, 484, 540 
 
 Pine V. Rikert, 355, 388, 392, 491. 
 Pinkerton v. Manchester R. R. Co., 
 
 i8i, 251. 
 Pinkston v. Mclycmore, 226, 241, 
 
 265, 290. 
 Pinneo v. Hart, 372, 391. 
 Piper V. Johnston, 259, 481, 482, 611. 
 Pitts V. lyighthall, 18. 
 Pitts V. Viley, 347, 387, 427. 
 Place V. I/ongworthy, 124. 
 Place V. Miller, 404. 
 Place V. Rhem, 330. 
 Planck V. Schermerhorn, 17, 230, 
 
 301, 380, 383, 392, 393, 425. 
 Planter's Bank v. Borland, 25, 34, 
 
 73. 94. 139- 
 Planter's Bank v. Clarke, 48. 
 Planters' Bank v. Henderson, 251. 
 Planters' Bank v. Walker, 35, 49, 57, 
 
 58, 526, 546, 562. 
 Planters' Bank v. Whittle, 192. 
 Planters' Bank v. Willeo Mills, 17. 
 Planters' Bank v. Willis, 167. 
 Planters' & Merchants' Bank v 
 
 Clarke, 137, 388, 407, 417. 
 Piatt V. Brown, 225. 
 Piatt V. Griflath, 240. 
 Piatt V. Matthews, 539. 
 Piatt V. Mead, 327, 329, 548. 
 Piatt V. Wheeler, 474, 
 Plimpton V. Goodell, 40. 
 Plummer v. Worley, 448. 
 Plunkett V. Plunkett, 40. 
 Plunkitt V. Plunkitt, 547. 
 Poague V. Boyce, 31, 57. 
 Pogodinski v. Kruger, 593. 
 Poindexter v. Jeffries, 319, 320. 
 Pollard V. Farwell, 148. 
 Polley V. Johnson, 460, 479. 
 Pollock V. Jones, 234. 
 Pollock V. McNiel, 259. 
 Pollock V. Meyer, 189. 
 Pomeroy v. Bailey, 302, 574, 582, 
 
 589- 
 Pomeroy v. Manin, 402, 551, 567, 
 
 589- 
 Pond V. Comstock, 607. 
 Pondville and Co. v. Clark, 191. 
 
Ixxiv 
 
 TABLE OF CASES CITED. 
 
 [references are to pages.] 
 
 Pool V. Gramling, io6, 124, 128. 
 Pope V. Andrews, 33, 35, 48, 52. 57, 
 
 591- 
 Pope V. Brandon, 341, 360, 383. 
 
 Pope V. Pope, 183, 214. 
 
 Pope V. Wilson, 11, 12, 22, 27, 136, 
 
 221, 339, 340, 345. 413, 548. 
 Porche v. Labatut, 170. 
 Porche v. Moore, 293. 
 Porrman v. Frede, 569. 
 Porter v. Cocke, 513, 55s, 556, 557. 
 Porter v. Williams, 347, 348, 349, 
 
 422, 504. 540. 
 Portland Bank v. Stacey, 175. 
 Portland Bldg. Ass'n. v. Creamer, 
 
 522. 
 Posey V. Underwood, 517. 
 Post Stiger, 324, 501. 
 Posten V. Posten, 289, 295, 296, 570. 
 Postlewait v. Howes, 530, 532, 536, 
 
 541, 543. 547. 549- 
 Poston V. Balch, 452. 
 Pott V. Todhunter, 319, 504. 
 Potter V. Grade, 237, 589, 607. 
 Potter V. Mather, 152. 
 Potter V. McDowell, 21, 22, 24, 31, 
 
 47. 48, 281, 282, 283, 293, 296, 
 
 366, 574- 
 Potter V. Payne, 29, 119, 149. 
 Potter V. Phillips, 543. 
 Potter V. Stevens, 545, 605. 
 Potter V. Washburn, 178. 
 Potts V. Hart, 123, 126, 130, 134, 135, 
 Powell V. Inman, 457, 458. 
 Powell V. Westmoreland, 295. 
 Power V. Alston, 49, 223. 
 Power V. Van Buren, 516. 
 Powers V. Graydon, 395, 438. 
 Powers V. Green, 149, 164. 
 Powers V. Russell, 461. 
 Pratt V. Burr, 257. 
 Pratt V. Cox, 336, 446, 466, 612. 
 Pratt V. Curtis, 285, 334, 539. 
 Pratt V. Myers, 330. 
 Pratt V. Pratt, 590. 
 Pratt V. Wheeler, 476. 
 Pregnall v. Miller, 110. 
 Prentice v. Madden, 547. 
 
 Prescott V. Hayes, 43. 233, 568, 570, 
 
 585. 
 Prestide v. Cooper, 448. 
 Preston v. Colby, 533. 
 Preston v. Crofut, 492. 
 Preston v. Griffin, 34. 
 Preston v. Jones, 236. 
 Preston Nat. Bank v. Geo. T. Smith 
 
 Co., 126, 129. 
 Preston v. Spaulding, 374. 
 Preston v. Turner, 530. 
 Preston v. Twiner, 206, 561. 
 Preusser v. Henshaw, 188. 
 Prewett v. Coopwood, 452. 
 Prewitt V. Wilson, 306, 311, 312, 313, 
 
 321, 577- ' 
 Price V. DeFord, 379, 398, 409, 423, 
 
 424. 
 Price V. Jenkyns, 308, 309, 310. 
 Price V. Mahoney, 583. 
 Price V. Masterson, 606, 
 Price V. Mazange, 123, 402. 
 Price V. Parker, 357. 
 Price V. Pitzer, 129. 
 Price V. Ritger, 405. 
 Price V. Sanders, 548. 
 Priest V. Brown, 214. 
 Priest V. Conklin, 236. 
 Primrose v. Browning, 292, 295, 324, 
 
 SOS- 
 Prince V. Sheppard, 43, 488. 
 ■Pringle v. Hodgson, 251. 
 Pringle v. Isaacs, 513. 
 Pringle v. Pringle, 448. 
 Pringle v. Rhame, 164. 
 Pringle v. Sizer, 189, 196, 590. 
 Prior V. Kinney, 154, 247. 
 Prior V. White, 52, 60, 189, 576. 
 Pritchett v. Jones, 164. 
 Proctor V. Cole, 252. 
 Proctor 11. Warren, 252, 253. 
 Proseus v. Mclntyre, 253, 456. 
 Proskauer v. People's Bank, 43. 
 Proskauer v. Peoples' Savings 
 
 Bank, 586. 
 Prosser v. Edmonds, 15. 
 Prosser v. Henderson, 46, 143. 
 Prout V. Vaughan, 200, 492. 
 
TABLE OP OASES CITED. 
 
 Ixxv 
 
 [references are to pages.] 
 
 Providence Savings Bank v. Hunt- 
 ington, 302. 
 
 Puckett V. Richardson Drug Co., 
 18, 22li 
 
 Pulliam V. Newberry, 200, 208, 581. 
 
 PuUis V. Robison, 604. 
 
 Pulvertoft V. Pulvertoft, 310. 
 
 Purkitt V. Polack, 35, 49, 55. 
 
 Puryear v. Beard, 461. 
 
 Pusey V. Harper, 270. 
 
 Putnam v. Dutch, 62, 175, 176. 
 
 Putnam v. Hubbell, 401. 
 
 Putnam v. Osgood, 126, 130, 136. 
 
 Putnam v. Russell, 395. 
 
 Pyles V. Riverside Furniture Co., 
 191. 
 
 Quarles v. Grigsby, 547. 
 
 Quarles v. Kerr, 18, 132, 417. 
 
 Quarles v. Lacy, 321, 608. 
 
 Quick V. Garrison, 169. ■ 
 
 Quidort v. Pergeaux, 262. 
 
 Quimby v. Dill, 506. 
 
 Quinby v. Strauss, 523. 
 
 Quincy v. Hall, 357. 
 
 Quinn v. Hart, 130, 131. 
 
 Quiriague v. Dennis, 173. 
 
 Radford v. Folsom, 214. 
 
 Raffensberger v. CoUison, 270. 
 ' Ragan v. Kennedy, 180, 187, 568, 
 581, 582. 
 
 Ragland v. Cantrell, 278. 
 
 Rahn v. McElrath, 200, 221. 
 
 Railroad Co. v. Kyle, ) 
 
 Ry. Co. V. Kyle, \ 5^' 57. 568. 
 
 R. R. Co. V. Sage, 557. 
 
 Railroad Co. v. Soutter, 605. 
 
 Raines v. Woodward, 324. 
 
 Rainsford, In re, 327. 
 
 Raleigh v. Griffith, 419. 
 
 Ralls V. Graham, 521. 
 
 Ramsdell v. Sigerson, 438. 
 
 Ramsden v. Hylton, 316. 
 
 Ramsey v. Quillen, 556. 
 
 Ramsey v. Stevenson, 510. 
 
 Ramsey v. Voorhees, 253. 
 
 Randall v. Buffington, 257. 
 
 Randall v. Cook, 97, 100, loi, 161, 
 163, i65> 172. 
 
 Randall v. Lunt, 191. 
 
 Randall v. Morgan, 232, 313, 315. 
 
 Randall v. Parker, 102, 112, 119, 162. 
 
 Randall v. Phillips, 461, 552. 
 
 Randall v. Sunderland, In re, 380. 
 
 Randall v. Vroom, 208. 
 
 Randolph v. Daly, 543, 545, 547. 
 
 Rankin v. Arndt, 270, 274, 491. 
 
 Rankin v. Harper, 254, 477. 
 
 Rankin v. Holloway, 181, 337. 
 
 Rankin v. Jones, 271. 
 
 Rankin v. Lodor, 343, 424, 427, 444. 
 
 Rankin v. West, 262. 
 
 Rapalee v. Stewart, 376, 422, 469. 
 
 Rappeleye v. International Bank, 
 
 475. 565- 
 Ratcliffe v. Trimtjle, 46, 206. 
 Rathbun v. Berry, 127, 128. 
 Rathbun v. Planter, 372. 
 Ravenshaw v. Collier, 347. 
 Ravisies v. Alston, 48, 120, 137, 167, 
 
 169, 221. 
 Raw V. Pote, 305. 
 Rawson v. Fox, 562. 
 Rawson Mfg. Co. v. Ridhards, 160. 
 Ray V. Brown, 37. 
 Ray V. Simons, 27. 
 Raybold v. Raybold, 265. 
 Raymond v. Cook, 287, 292, 505, 
 Raymond v. Richmond, 563. 
 Rayner v. Whicher, 259, 599, 611. 
 Raynor v. Mintzer, 542. 
 Rea V. Alexander, 109, 208, 223. 
 Rea V. Missouri, 574, 578, 581, 584, 
 
 591- 
 Rea V. Smith, 460. 
 Read v. Baylies, 397, 398. 
 Read v. Mosby, 230, 250. 
 Read v. Staton, 492, 496. 
 Read v. Wilson, 123, 128, 138, 149, 
 
 180. 
 Reed v. .Worthington, 17, 356, 375, 
 
 394. 396- 
 Reade v. Livingston, 232, 290, 314, 
 
 315. 316. 330. 
 Ready v. Bragg, 319. 
 Reamer v. Lamberton, 356. 
 Reavis v. Garner, 440, 504. 
 
Ixxvi 
 
 TABLE OF CASES CITED. 
 
 [referbncbs are to pages.] 
 
 Redewill v. Gillen, 159. 
 
 Redfield v. Buck, 327, 331, 568, 582. 
 
 Redfield v. Dysart ) 
 
 Redfield Manf. Co. v. \ 37, 57, 586. 
 
 Dysart. ) 
 
 Redhead v. Pratt, 34, 51, 210. 
 Redmon v. Durant, 200, 578. 
 Redpath v. Lawrence, 233. 
 Reed v. Blades, 50, 91, 124, 465. 
 Reed v. Carl, 46, 57. 
 Reed v. Davis, 568, 570. 
 Reed v. Dingess, 557. 
 Reed v. Eames, 167. 
 Reed v. Emery, 384, 385, 386. 
 Reed v. Ennis, 518. 
 Reed v. Jewett, 42, 107. 
 Reed v. Mclntyre, 367. 
 Reed v. Minell, 555. 
 Reed v. Northfield, 10. 
 Reed v. Noxon, 28, 592. 
 Reed v. Reed, 107. 
 Reed v. Smith, 496, 576, 580, 582. 
 Reed v. Stryker, 545. 
 Reed v. Thoyts, 446. 
 Reed v. Wilmot, 120, 165. 
 Reed v. Woodman, 42, 330, 506. 
 Reehling v. Byers, 56, 204, 207. 
 Reese River Silver Min- ) 37, 282, 
 
 ing Co. V. Atwell, ( 283, 546. 
 Reeves v. Capper, 120. 
 Reeves v. Dougherty, 556. 
 Beeves v. Harris, 157, 165, 245. 
 Reeves v. Shry, 200. 
 Reg. V. Smith, 550. 
 Regli. V. McClure, 145. 
 Reich V. Reich, 302. 
 Reichert v. Castator, 447, 574. 
 Reichert v. Simons, 113, 131. 
 Reichwald v. Commercial ( 
 
 Hotel Co., f I92- 
 
 Reid V. Gray, 326,511. 
 Reid V. Mullins, 461. 
 Reiff V. Eshleman, 321, 392, 469. 
 Reiger v. Davis, 38, 57, 206. 
 Reiley v. Haynes, 582. 
 Reinhard v. Bank of Ky., 341, 369, 
 
 379. 395. 408. 
 Reinhart v. Empire Soap Co., 260. 
 Reinheimer v. Hemingway, 209. 
 
 Reitenbach v. Reitenbach, 578. 
 
 Remington v. Bailey, 461. 
 
 Remington Paper Co. v. O'Dough- 
 erty 270, 273, 540. 
 
 Renard v. Gray don, 404, 438. 
 
 Rencher v. Wynne, 21. 
 
 Renfrew v. McDonald, 454. 
 
 Renick v. Bank, 468, 470. 
 
 Renney v. Williams, 56. 
 
 Renninger v. Spatz, 207. 
 
 Renton v. Kelly, 420. 
 
 Repplier v. Buck, 341, 342, 383- 
 
 Repplier v. Orrich, 414. 
 
 Reppy V. Reppy, 269, 292. 
 
 Retzer v. Wood, 554. 
 
 Reubens v. Joel, 529. 
 
 Rew V. Barber, 515. 
 
 Rex V. Nottingham, 226, 502. 
 
 Reydolds v. Hark, 545. 
 
 Raynaud v. O'Brien, 533. 
 
 Reynell v. Peacock, 305. 
 
 Reynolds v. Crook, 228. 
 
 Reynolds v. EUis, 130. 
 
 Reynolds v. Johnson, 18, 124, 127 ._ 
 
 Reynolds v. Lansford, 287, 292, 556, 
 
 Reynolds v. Park, 497. 
 
 Reynolds v. Sumner, 557. 
 
 Reynolds v. Welch, 200, 202. 
 
 Reynolds v. Wilkins, 196. 
 
 Rhein v. TuU, 447. 
 
 Rhines v. Phelps, 167. 
 
 Rhoads v. Blatt, 44. 
 
 Rhode V. Matthai, 126. 
 
 R. I. Loc. Works v. Empire Lum- 
 ber Co., 160. 
 
 Rhodes v. Amsinck, 564. 
 
 Rhodes v. Cousins, 466, 529. 
 
 Rhodes v. Gordon, 324. 
 
 Rhodes v. Green, 493, 505. 
 
 Rice V. Courtis, 510, 511. 
 
 Rice V. Cunningham, 222, 223, 574, 
 589. 
 
 Rice V. Dignowithy, 596, 597. 
 
 Rice V. Morner, 44. 
 
 Rice V. Perry, i5, 538. 
 
 Rice V. Serjeant, 516. 
 
 Rich V. Levy, 196, 521. 
 
 Richards v. Allen, 42. 
 
TABLE OF OASES CITED. 
 
 Ixxvii; 
 
 [refbrbncbs are to pages.] 
 
 Richards v. Atty. Gen. 8. 
 Richards v. Ewing, 479, 491, 600. 
 Richards v. Hazzard, 373, 405. 
 Richards v. Levin, 410. 
 Richards v. Mackall, 558. 
 Richards .« Schroeder, 174, 178. 
 Richards v. Swan, 32, 35, 551, 568. 
 Richards v. White, 469, 470. 
 Richardson v. Forepaugh, 511. 
 Richardson v. Horton, 311, 503, 547, 
 Richardson v. Leavitt, 509. 
 Richardson v. Marqueze, 409, 422. 
 Richardson v. Rhodus, 294, 300, 327, 
 
 330. 331- 
 Richardson v. Rogers, 347, 361, 422. 
 Richardson v. Small wood, 28, 286, 
 
 293. 296. 333. 334, 505- 
 Richardson v. Stapleton, 414. 
 Richardson v. Stewart, 11. 
 Richardson v. Wyman, 481. 
 • Riches v. Evans, 19, 197, 367. 
 Richmond v. Curdup, 48. 
 Richmondville Manuf. Co. v. Pratt, 
 
 510. 
 Ricker v. Cross, 175. 
 Ricker v. Ham, 480. 
 Ricker w. Insurance Co., 250. 
 Rickett V. Pipkin, 41. 
 Ricketts v. McCully, 300, 302. 
 Riddell v. Shirley, 257. 
 Riddle v. Lewis, 460. 
 Riddle v. Whitehill, 557. 
 Rider v. Hunt, 18. 
 Rider v. Kidder, 251; 252, 502, 527. 
 Ridge V. Greenwell, 56. 
 Ridgeway v. Underwood, 326, 330 
 
 332, 587. 
 Ridgway v. Masting, 481. 
 Ridgway v. Ogden, 20. 
 Ridler, In re, 295. 
 Ridler v. Punter, 20, 247. 
 Ridout V. Burton, 153. 
 Ries V. Rowland, 276. 
 Riggs V. Murray, 389. 
 Riggs V. Palmer, 10. 
 Riggon V. Wolf, 27. 
 Riley v. Carter, 361, 364. 
 Rinchey v. Stryker, 464, 503. 
 
 Rindskoff v. Guggenheim, 404, 4o8> 
 
 417, 420, 585- 
 Rindskopf v. Myers, 211. 
 Rindskopf v. Vaughn, 128. 
 Rinehart v. Long, 253. 
 Ringgold V. Waggoner, 35, 49, 52, 
 
 58, 493. 603. 
 Ripley v. Severance, 485. 
 Rittenhouse v. Baggett, 250, 
 Rivers v. Thayer, 311, 313, 326, 327. 
 Roach V. Caraffa, 352, 557. 
 Roach V. Deering, 45, 49, 275. 
 Roane v. Bank, 47, 483. 
 Roane v. Vidal, 448, 451. 
 Roan V. Winn, 192, 212, 371. 
 Robb V. Brewer, 258. 
 Robb. V. Mudge, 271. 
 Robb V. Stevens. 398. 
 Robbins v. Magee, 338. 
 Robbins v. Oldham, 173. 
 Robbins v. Parker, 55, 135, 137. 
 Robbins v. Sackett, 504, 555. 
 Roberts v. Hodges, 41, 531. 
 Roberts v Buckley, 590. 
 Roberts v. Gibson, 232, 288, 327, 
 
 330, 561- 
 Roberts v. Guernsey, 179, 362, 593. 
 Roberts v. Hawn, 106. 
 Roberts v. Jackson, 485. 
 Roberts v. Lund, 459. 
 Roberts v. Oldham, 514. 
 Roberts v. Radcliff, 24, 34. 
 Roberts v. Scales, 515. 
 Roberts v. Shepard, 48. 
 Roberts v. Stevens, 244. 
 Robertson v. Durden, 39. 
 Robertson v. Ewell, 103. 
 Robertson v. Sayre, 447. 
 Robinett's Appeal, 319. 
 Robins v. Embry, 354, 360, 375, 383, 
 
 401, 406, 413, 414, 423, 430, 488. 
 Robinson v. Bank, 3§i. 
 Robinson v. Bates, 481 . 
 Robinson v. Bliss. 574. 
 Robinson v. Boyd, 601. 
 Robinson v. Brenns, 262. 
 Robinson v. Chapline, 245. 
 Robinson v. Clark, 24. 
 
Ixxviii 
 
 TABLE OF OASES OITED. 
 
 [rbferencbs are To pages.] 
 
 Robinson v. Crowder, 362. 
 Robinson v. Elliott, 114, 124, 131, 
 
 133. 138- 
 Robinson v. Frankel, 34. 
 Robinson v. Gregory, Appeals, 362. 
 Robinson v. Holt, 208. 
 Robinson v. Huffman, 255. 
 Robinson ». McDonnell, 504. 
 Robinson v. Monjoy, 476. 
 Robinson v. Pitzer, 582. 
 Robinson v. Rapeleye, 183, 341, 354, 
 
 401, 438, 509. 
 Robinson v. Robards, 218, 227. 
 Robinson v. Roberts, 171. 
 Robinson v. Springfield Co., 253, 
 
 254- 
 Robinson z/. Stewart, 200, 226,304, 
 
 553, 564. 603, 607. 
 Robinson v. Wallace, 261, 262. 
 Robinson v. Williams, 240. 
 Robinson v. Woodmansee, 38. 
 Robson V. McCreight, 248. 
 Roche V. Hassard, 45, 54, 607. 
 Rocheleau v. Boyle, 130. 
 Rochelle v. Grimes, 35. 
 Rocbelle v. Harrison, 459. 
 Rochester v. Sullivan, 590. 
 Rock V. Dade, 226, 313, 544. 
 Rock Island Plow Co. v. Long, 362. 
 Rockland Co. v. Summerville, 56. 
 Rockwood V. CoUamer, 151. 
 Roddy V. Finnegan,.594. 
 Rodenburg v. H. B. Claflin Co., 41. 
 Roden v. Murphy, \ 
 Rodin V. Murphy, ) ^^47. 457- 
 Roe V. Harrison, 199. 
 Roe V. Irwin, 254, 525. 
 Roe V. Mitton, 309. 
 Roeber v. Howe, 209. 
 Rogers v. Brown, 556, 557, 558. 
 Rogers v. DeForest, 422. 
 Rogers v. Fvans, 208, 502. 
 Rogers v. Fales, 484. 
 Rogers v. Hall, 53, 493, 578, 586, 
 
 591- 
 Rogers v. Jones, 269. 
 Rogers v. McCauley, 258. 
 Rogers v. Rogers, 544. 
 
 Rogers v. Vail, 143, 169. 
 Rogers v. Verlander, 585. 
 Rogers v. Whitehouse, 159. 
 Rogers Locomotive Works v. Lewis, 
 
 245- 
 Rohrer v. Turrill, 462. 
 Rokenbaugh v. Hubbell, 381, 382, 
 
 387. 
 Rollins V. Mooers, 33, 35, 49, 58, 227, 
 
 588. 
 Romine v. Romine, 548. 
 Ronald v. Bank of Princeton, 550. 
 Rood V. Welch, 485. 
 Root V. Burton, 516. 
 Root V. Reynolds, 213. 
 Rose V. Bevan, 129. 
 Rose V. Brown, 255, 324, 327. 
 Rose V. Burgess, 165. 
 Rose V. Coble, 206. 
 Rose V. Colter, 27, 107, 118. 
 Rose V. Sharpless, 257. 
 Rose V. Story, 245. 
 Rose V. Winn, 192. 
 Roseboom v. Whittaker, 192. 
 Rosenberg v. Moore, 1 
 Rosenburg v. Moore, \ ^^^' ^^^' 
 Rosenthal v. Vernon, 124. 
 Ross V. Crutsinger, 38, 118. 
 Ross V. Duggan, 42. 
 Ross V. State, 594. 
 Ross V. Weber, 513. 
 Ross V. Wilson, 129, 135. 
 Rosseau v. Bleau, 448. 
 Rothberger v. Gough, 31. 
 Rothell V. Grimes, 188. 
 Roundy v. Converse, 132. 
 Rouns V. Dunnigan, 266. 
 Rouse V. Frank, 188. 
 Rouse V. Mch. Nat. Bank, 192. 
 Rowland v. Coleman 410, 547. 
 Rowlandson, Bx parte, 271. 
 Rowley v. Rice, 138. 
 Royer Wheel Co. v. Fielding, 357, 
 
 530, 546. 
 Rozier v. Williams, 120. 
 Ruble V. McDonald, 372, 408. 
 Rucker v. Abell, 42, 230, 254, 527, 
 
 609, 610. 
 
TABLE OF CASES CITED. 
 
 Ixxix 
 
 [referbncbs akb to pages.] 
 
 Ruckmau v- Ruckman, 446. 
 
 Rudy V. Austin, 286, 326, 332. 
 
 Ruffin, Ex parte, 271. 
 
 Ruffing v. Tilton, 212, 336, 503, 541. 
 
 Rugan V. Sabin, 558, 560. 
 
 Ruhl V. Phillips, 48, 206, 214, 397. 
 
 Rumbolds v. Parr, 593. 
 
 Rumsey v. Nickersou, 177. 
 
 Rundle v. Murgatroyd, 292. 
 
 Rundlett v. Dole, 354. 
 
 Runyon v. Groshon, 109, 119, 165. 
 
 Runyon v. Leary, 26. 
 
 Rusb V. Vought, 260, 264. 
 
 Russ V. Butterfield, 464. 
 
 Russell V. Bank, 565. 
 
 Russell V. Chicago Savings Bank, 
 
 532. 
 Russell V. Dudley, 478. 
 Russell V. Dyer, 464, 476. 
 Russell Ex parte, 295. 
 Russell V. Fabyan, 461, 480. 
 Russell V. Fanning, 293. 
 Russell V. Gibbs, 515, 516. 
 Russell V. Hammond, 49, 227, 284, 
 
 288, 290, 316, 321, 526. 
 Russell V. Harkness, 159. 
 Russell V. Lasher, 544. 
 Russell V. McCord, 239. 
 Russell V. Randolph, 292. 
 Russell V. Stinson, 326, 501. 
 Russell V. Thatcher, 293, 322, 323. 
 Russell V. Tunuo, 509, 512. 
 Russell V. Winne, 123, 124, 131, 135, 
 
 487. 
 Russell V. Woodward, 341. 
 Ryall V. RoUe, 38, 49, 80, 82, 91. 
 Ryan v. Bull, 319. 
 Ryan v. Daly, 196. 
 Ryan v. Mnllinix, 57. 
 Ryan v. Ran, 451. 
 Ryerson v. Eldred, 354. 
 Ryland v. Callison, 540. 
 Sabin v. Columbia Fuel Co., 26,184, 
 
 189, 190, 193. 
 Sackett v. Mansfield, 415, 418, 419. 
 Sackett v. Spencer, 231, 574, 581. 
 Sadler v. Immel, 341, 354. 
 
 Sadlier v. Fallon, 345. 
 
 Sage V. Chollar, 271. 
 
 Sagitary v. Hide, 226, 288, 330. 
 
 Sale V. McLean, 540, 605. 
 
 Salem First Nat. Bank v. Salem 
 
 Capital Flour Mills Co., 188. 
 Salmon v. Bennett, 297, 301. 
 Salmon v. Smith, 550. 
 Salomon v. Moral, 606. 
 Samuel v. Kittinger, 18. 
 Samuels v. Gorham, 172. 
 Sanborn v. Doe, 353. 
 Sanborn v. Kittredge, 174, 552. 
 Sanborn v. Putnam, 141. 
 
 Sanders v. , 569. 
 
 Sanders v. Chandler, 28, 332, 337. 
 Sanders v. Pepoon, 106. 
 Sanders v. Wagonseller, 241, 475, 
 Sanders v. Warton, 502. 
 Sandman v. Seaman, 45. 
 Sanderson v. Bradford, 509, 511. 
 Sanderson v. Stockdale, 272. 
 Sanderson v. Streeter, 330, 414. 
 Sandlin v. Robbins, 218, 219, 222, 
 
 227. 
 Sandwich Mfg. Co. v. Max. 184, 
 
 185. 
 Sands v. Codwise, 31, 50, 52, 58, 
 
 540, 603, 605, 609. 
 Sands v. Hildreth, 38, 45, 50, 55, 
 
 206, 327, 476, 550. 
 Sanford v. Wheeler, 607. 
 Sanford v. Wiggin, 465. 
 San Francisco R. R. Co. v. Bee, 292, 
 Sanger v. Colbert, 36. 
 Sangston v. Gaither, 413, 439, 440, 
 
 441, 512. 
 Sargent v. Chubbuck, 292. 
 Sargent v. Metcalf, 159. 
 Sargent v. Salmond, 252, 505, 527, 
 
 570- 
 Sarle v. Arnold, 33, 49, 576, 577. 
 Satterthwaite v. Emley, 315. 
 Satterwhite v. Hicks, 35, 37, 58, 59, 
 
 568. 
 Sauer v. Behr, 124, 129. 
 Saunders v. Ferrill, 314, 316. 
 
Ixxx 
 
 TABLE OF OASES OITED. 
 
 [rbpbrencbs arb to pages.] 
 
 Saunders v. Reilly, 398, 
 
 Saunders v. Turbeville, 131, 136, 
 
 137. 566. 
 Savage v. Dowd, 191. 
 Savage v. Hazard, 208. 
 Savage v. Knight, 372. 
 Savage v. Murphy, 147, 333. 
 Savage v. O'Neil, 262, 263, 320, 512. 
 Savery v. Spaulding, 371 , 383, 387, 
 
 580. 
 Savings Association v. O'Brien, 360. 
 Savings Bank v. Bates, 196. 
 Sav. Bank v. McLean, 266. 
 Sawyer v. Harrison, 567. 
 Sayre v. Fredericks, 31, 33, 35, 4°, 
 
 57. 58, 208, 231. 
 Scales V. Scott, 235, 486, 531. 
 Scarfe v. Halifax, 504. 
 Scarf V. Soulby, 249. 
 Schaeiier v. Beldsmier, 258. 
 Schaeffer v. Tithian, 238. 
 Schaferman v. O'Brien, 32, 36, 49, 
 
 50, 55. 57. 545. 555- 
 Schafiner v. Reuter, 317. 
 Scheble v. Jordan, 40. 
 Schee V. La Grange, 570. 
 Scheftel v. Hays, 558. 
 Scheitlin v. Stone, 36, 48, 550. 
 Schenck v. Hart, 467. 
 Schettler v. Brunette, 461. 
 Schloss V. Maguire, 184. 
 Schmick v. Noel, 290. 
 Schondler v. Ware, 249. 
 Schoolher v. Hutchins, 359. 
 Schlussel V. Willett, 425, 464, 504. 
 Schmidlapp v. Currie, 238. 
 Schmidt V. Niemeyer, 569. 
 Schmidt V. Opie, 43, 57. 
 Schofield V. Blind, 593. 
 Scholey v. Worcester, 467. 
 Schoolfield v. Johnson, 373, 419. 
 Schott V. Chancellor, 275. 
 Schram v. Taylor, 34, 188. 
 Schreyer v. Scott, 328, 329. 
 Schroeder v. Bobbitt, 41, 188. 
 Schroeder v. Walsh, 184. 
 Schufeldt V. Abernethy, 422. 
 
 Schultz V. Hoagland, 383', 384, 408, 
 
 593- 
 Schuman v. Peddicord, 446. 
 Schuster v. Bauman Jewelry Co., 
 
 266, 325. 
 Schuster v. Stout, 502. 
 Schwab V. Owens, 130. 
 Scofield V. Burkett, 108. 
 Scoggin V. Schloath, 45. 
 Scott V. Coleman, 566. 
 Scott V. Edes, 467. 469. 473- 
 Scott V. Gibbon, 307. 
 Scott V. Guthrie, 355. 
 Scott V. Hartman, 40, 225, 502. 
 Scott V. Heilager, 580. 
 Scott f. Indianapolis Wagon Works, 
 
 251- 
 Scott V. Ind. Wagon Works, 526, 
 
 570. 
 Scott V. M'Millen, 537, 566. 
 Scott V. Mead, 255. 
 Scott V. Purcell, 495. 
 Scott V. Ray, 387. 
 Scott V. Winship, 34, 44, 57. "9. 
 
 136. 598- 
 Scouton V. Bender, 562, 565, 607. 
 Scriven v. Bostwick, 536, 543, 556. 
 Scrivenor v. Scrivener, 38, 39, 57. 
 Scudder v. Voorhis, 544. 
 Scully V. Kearns, 474. 
 Seal V. Dufiy, 357. 
 Seals V. Robinson, 38. 
 Scale V. Vaiden, 438. 
 Seaman v. Flemming, 239. 
 Seaman v. Hasbrouck, 236. 
 Seaman v. Wall, 330. 
 Seaman v. White, 46, 218. 
 Searcy v. Carter, 448. 
 Sears v. Choate, 244. 
 Sears v. Hanks, 482. 
 Seasongood v. Ware, 59. 
 Seay ti. Hesse, 264. 
 Seaving v. Brinkerhoff, 439, 440, 
 
 441. 
 Seavey v. Walker, 107, 112. 
 Seavy v. Dearborn, 149, 211. 
 Second Nat'l Bank v. Gratman, 50. 
 
TABLE OF CASES CITED. 
 
 Ixxxi 
 
 [rbfbrbncks are to pagbs.] 
 
 Second Nat'l Bank v. Merrill, 323. 
 Second Nat'l Bank v. Merrill and 
 
 Houston Iron Works, 39. 
 Second Nat'l Bank v. Yeatman, 54. 
 Sedgwick City Bank v. Wichita 
 
 Min. Co., 135, 
 Sedgwick v. Menck, 539. 
 Sedgwick v. Place, 297, 492, 497. 
 Sedgwick v. Tucker, 231, 594. 
 Seeders v. Allen, 232. 
 Seger v. Thomas, 21, 34. • 
 
 Seiler.z/. Walz, 487. 
 Seitz V. Mitchell, 324. 
 Self V. Maddox, 37. 
 Sell V. Bailey, 290. 
 Sellers v. Bailey, 190, 210. 
 Senhouse v. Earle, 314. 
 Serf OSS v. Fisher, 273. 
 Servis v. Nelson, 459. 
 Severson v. Porter, 409. 
 Sewall V. Russell, 406, 429, 543. 
 Sewell V. Russell, 383. 
 Seward v. Jackson, 20, 233, 279, 296, 
 
 301, 501, 505. 
 Sexton V. Canny, 478. 
 Sexton V. Martin, 260. 
 Sexton z/.Wheatou, 11, 288, 327, 330. 
 Seymour v. Briggs, 182, 233. 
 Seymour v. Lewis, 52, 57, 468, 470. 
 Seymour v. O'Keefe, 142. 
 Seymour z/. Wilson, 12, 13, 182, 206, 
 
 233. 234, 504. 594- 
 Shadbolt v. Bassett, 461. 
 Shackelford z/.Collier, 255, 263, 264, 
 
 265, 504, 539. 
 Shackelford v. Todhunter, 330. 
 Shackelford v. Planters' Bank, 354, 
 
 370, 376. 407, 421- 
 Shafer v. Grimes, 353. 
 Shaefier v. Tithian, 562. 
 ShafEer v. Watkins, 41. 
 Shallcross v. Deats, 272, 446, 476, 
 
 517- 
 Shainwald v. Lewis, 272. 
 Shannon v. Commonwealth, 208, 
 
 226. 
 Shannon v. White, 548, 559. 
 Shapleigh v. Baird, 340, 402. 
 
 Sharon f. Shaw, 152, 178. 
 
 Sharp V. Jones, 462. 
 
 Sharp V. Maxwell, 265. 
 
 Sharpe v. Davis, 467. 
 
 Sharpe v. Williams, 275. 
 
 Shattuck V. Chandler. 362, 364. 
 
 Shattuck V. Freeman, 342, 370, 371, 
 
 387. 
 Shaver v. Allerton, 578. 
 Shaver v. Brainard, 543. 
 Shaw V. Bran, 502. 
 Shaw V. Dwight, 530, 538. 
 Shaw V. Jakeman, 314. 
 Shaw V. Jeffrey, 446. 
 Shaw V. Lowry, 124. 
 Shaw V. Robertson, 581. 
 Shaw V. Standish, 330. 
 Shaw V. Spencer, 210. 
 Shawano Co. Bank v. Koeppen, 258. 
 Shea V. Knoxville & K. R. R. Co., 
 
 535- 
 Sheafe v. Sheafe, 526. 
 Shealey v. Edwards, 184. 
 Shean v. Shay, 37, 502. 
 Shearer v. Loftiu, 344, 345, 346, 414. 
 Shearon v. Henderson, 206, 231. 
 Shears v. Rogers, 293, 296, 448. 
 Shedd V. Bank, 44, 196, 486. 
 Shee V. French, 489, 521. 
 Sheerer v. Lautzerheizer, 414, 417, 
 
 464. 
 Sheldon v. Dodge, 22, 273, 377, 391, 
 
 407. 
 Sheldon v. Smith, 347, 362. 
 Sheldon v. Stryker, 491. 
 Shelley v. Boothe, 189, 191, 197, 
 
 200, 366. 
 Shelton v. Church, 44, 200. 
 Shepherd v. Hill, 51, 262. 
 Sheppard v. Iverson, 35, 36, 44, 58. 
 Sheppard v. Pratt, 302. 
 Sheppard v. Thomas, 337, 472. 
 Sheppards v. Turpin, 388, 389, 407, 
 
 414. 
 Sherk v. Endress, 457. 
 Sherman v. Barrett, 237. 
 Sherman v. Hogland, 30, 36, 57, 
 
 207, 300, 548, 578. 
 
Ixxxii 
 
 TABLE OF CASES CITED. 
 
 [rbfbrencbs arb to pagbs.] 
 
 Shearon z/. Henderson, 37, 56, 58. 
 Sherron v. Humphreys, 145. 
 Sherwin v. Gaghagen, 127. 
 Shew V. Hews, 290. 
 Shields v. Anderson, 180, 519, 520, 
 
 603. 
 Shields v. Clifton Hill Land Co., 
 
 193- 
 Shields v. Schiff, 114. 
 Shinier v. Huber, 271, 272. 
 Shinas z/. Craig, 43. 
 Shinkle v. Letcher, 465. 
 Shipman v. Aetna Ins. Co., 181, 485, 
 Shirley v. Long, 539. 
 Shirley v. Shirley, 169. 
 Shirras v. Craig, 41J 239, 240, 587. 
 Shiveley v. Jones, 38, 58, 459. 
 Shober v. Wheeler, 45, 52. 
 Shockey v. Mills, 594. 
 Shockley v. Fisher, 191. 
 Shontz V. Brown, 230, 233, 236, 279, 
 
 292, 326, 500, 501, 585- 
 Shorman v. Farmers' Bank, 480. 
 Short V. Hubbard, 10. 
 Short V. Tinsley, 182, 607. 
 Shorter v. Methoin, 292. 
 Shoshouetz v. Campbell, 159. 
 Shouse V. Utterback, 402. 
 Shubert v. Winston, 257. 
 Shufeldt V. Boehm, 522. 
 ShurtlefE v, Willard, 48, 119, 138, 
 
 487. 
 Shurts V. Howell, 536. 
 Shute V. Sturm, 598. 
 Sibell V. Remsen, 361. 
 Sibley v. Hood, 20, 165, 188, 189, 
 
 206, 217, 590. 
 Sicardi v. Keystone Oil Co., 192. 
 Sickman v. Lapsley, 449. 
 Sickman v. Wilhelm, 21. 
 Sides V. Scharfi, 56. 
 Siedenbach v. Riley, 113. 
 Sidensparker v. Sidensparker, 228, 
 
 570, 571. 
 Siegel V. Chidsey, 12, 196, 238. 
 Siggers v. Evans, 347, 357. 
 Sigler V. Knox County Bank, 238. 
 
 Silleck V. Pollock, 201. 
 
 Silver Bow Mining Co. v. Lowry, 
 
 159- 
 Simerson v. Bank, 167, 169, 170. 
 Simmonds v. Palles, 347. 
 Simmons v. Curtis, 379. 
 Simmons Hardware Co. v. Pfeil, 
 
 112. 
 Simmons v. Kincaid, 265. 
 Simon v. Gibson, 461. 
 Siqjons v. Goldbach, 272. 
 Simpson v. Dall, 246. 
 Simpson v. Graves, 289, 293, 313, 
 
 314, 315, 446- 
 Simpson v. Mitchell, 48, 124. 
 Simpson v. Shakelford, 158. 
 Simpson v. Simpson, 49T, 544, 600, 
 
 603. 
 Simpson v. Warren, 540. 
 Sims V. Gaines, 42, 225. 
 Sims V. Gray, 556. 
 Sims V. Thomas, 251, 252, 527. 
 Simis V. Hodge, 125. 
 Simms v. Morse, 210. 
 Simms v. Phillips, 258. 
 Sinclair v. Healy, 491. 
 Singree v. Welch 321. 
 Singer v. Goldenberg, 366. 
 Singer v. Jacobs, 208, 211. 
 Sinker v. Comparet, 160. 
 Sipe V. Barman, 37, 48, 60, 137, 371. 
 Sisson V. Roth, 206, 209. 
 Skarf V. Soulby, 248, 286, 289, 302, 
 
 334- 
 Skiff V. Solace, 511. 
 Skillman v. Skillman, 241, 265. 
 Skipper v. Reeves, 189. 
 Skipwith V. Cunningham, 341, 344, 
 
 345, 411. 438, 441. 442- 
 Slagel V. Hoover, 207. 
 Slauson v. Schwabacher, 353. 
 Slater v. Dudley, 228. 
 Slater v. Moor", 230. 
 Slater v. Sherman, 506. 
 Slattery v. Jones, 475, 516. 
 Slattery v. Wason, 244. 
 Slattery v. Stewart, 57. 
 
TABLE OF OASES OITBD. 
 
 Ixxxiii 
 
 [reperbncbs are to pages.] 
 
 Sledge V. Obenchain, 337, 472. 
 Sleeper v. Chapman, 129, 134, 135, 
 
 498. 
 Sleeper v. Pollard, 178. 
 Sloan V. Coburn, 581. 
 Smallcomb v. Buckingham, 513. 
 Smart v. Comstock, 265. 
 Smart v. Harring, 217. 
 Smead v. Williamson, 52, 59, 211. 
 Smith's Appeal, 236, 512. 
 
 Smith V. , 451. 
 
 Smith V. Acker, 97, 98, 99, 10 1, 102 
 
 116, 118. 
 Smith V. Allen, 257, 306, 611. 
 Smith V. Blake, 523. 
 Smith V. Boquet, 451. 
 Smith V. Bowen, 455. 
 Smith V. Brown, 54, 56. 
 Smith V. Collins, 20. 
 Smith V. Combs, 353. 
 Smith V. Campbell, 402. 
 Smith V. Chenault, 584. 
 Smith V. Cherrill, 281, 282, 293, 308, 
 
 310, 446. 
 Smith V. Conkwright, 40. 
 Smith V. Consolidated Stage Co., 
 
 361. 
 Smith V. Cooper, 135. 
 Smith V. Craft, no, 184, 200, 202, 
 
 606. 
 Smith V. Culbertson, 208, 502. 
 Smith V. Daniel, 59. 
 Smith V. Duncan, 58, 253, 318. 
 Smith V. Dobbins, 202, 225. 
 Smith V. Edwards, 271. 
 Smith V. Elliott, 450, 454. 
 Smith V. Ely, 131, I35> 138- 
 Smith V. Espy, 336, 484, 467. 
 Smith V. Farnum, 522. 
 Smith V. Foster, 160. 
 Smith V. Gafey, 256. 
 Smith V. Gettinger, 519. 
 Smith V. Gordon, 539. 
 Smith V. Greer, 232, 315, 319, 330. 
 Smith V. Grim, 544. 
 Smith V. Ham, 135. 
 Smith V. Hardy, 200. 
 
 Smith V. Henry, 25, 32, 37, 58, 92, 
 115, 118, 163, 204, 206, 210. 213, 
 
 584. 
 Smith V. Hinson, 49, 50, 254. 
 Smith V. Howard, 349, 396, 398, 399, 
 
 4oo> 471. 
 Smith V. Hubbs, 457. 
 Smith V. Hurst, 347. 388, 391. 529- 
 Smith V. Ingles, 254, 475. 
 Smith V. Kenney, 127. 
 Smith V. Lane, 231. 
 Smith V. Leavitt, 123, 344, 346, 369, 
 
 388, 421, 430. 
 Smith V. Littlejohn. 163, 289, 33b. 
 Smith V. Lowell, 42, 122, 181, 336, 
 
 337- 
 Smith V. Lynes, 159. 
 Smith V. M'Cann, 526. 
 Smith V. McDonald, 181, 337. 
 Smiths. McLean, 113, 124. 
 Smith V. Mitchell, 408, 409. 
 Smith V. Morse, 28, 417. 
 Smith V. Muirhead, 208, 531. 
 Smith V. Nat'l. Benefit Society, 576, 
 
 584- 
 Smith V. N. Y. Life Ins. Co., 37, 45. 
 Smith V. Nat. Ry. E. and I. Ass'n., 
 
 192. 
 Smith V. N. Y. Life Ins. Co., 45. 
 Smith V. Onion, 42. 
 Smith V. Parker, 253, 526. 
 .Smith V. Pate, 206, 561. 
 Smith V. Patton, 285. 
 Smith V. People, 57. 
 Smith V. Pierce, 228. 
 Smith V. Pollard, 448, 450. 
 Smith V. Post, 112, 488. 
 Smith V. Putnam, 192. 
 Smith V. Quartz Mining Co., 456. 
 Smith V. R. R. Co. 529. 
 Smith V. Rankin, 233. 
 Smith V. Reavis, 289, 294. 
 Smith V. Reid, 285. 
 Smart v. Rement, 498. 
 Smith V. Riggs, 40. 
 Smyth v. Ripley, 221, 239. 
 Smith V. Roever, 127. 
 
IXxxiv 
 
 TABLE OF GASES CITED. 
 
 [REFERENCES ARE TO PAGES.] 
 
 Smith V, Rumsey, 257, 505, 535. 
 Smith'!/. Schwed, 199, 212, 276, 277, 
 
 583- 
 Smith V. Schmitz, 207, 257. 
 Smith V. Seiberling, 248. 
 Smith z/. Skeary, 151, 191, 192- 
 Smith V. Spencer, 236. 
 Smith V. Smith, 226. 
 Smith V. Stern, 142, 180. 
 Smith V. Tatton, 328. 
 Smith V. Thompson, 540. 
 Smith z/. Tonstall, 524. 
 Smith V. Tosini, 54. 
 Smith V. Towers, 244. 
 Smiths;. Vodges, 302, 327, 330. 
 Smith V. Waggoner, 114. 
 Smith z/. Wall, 113. 
 Smith V. Weeks, 532. 
 Smith V. Welch, iii, 118. 
 Smith V. Woodruff, 379, 438- 
 Smith V. Yell, 300. 
 Smithier v. I,ewis. 251, 527. 
 Smyth V. Carlisle, 42, 336. 
 Snipes v. Sheriff, 513. 
 Snodgrass v. Andrews, 536, 544, 545. 
 Snodgrass v. Bank, 559, 568, 569, 
 
 583- 
 Snow V. Paine, 254, 594. . 
 Snyder v. Christ, 327, 328. 
 Snyder v. Compton, 10. 
 Snyder v. Free, 34, 230, 241. 
 Snyder v. Hitt, 119, 165. 
 Snyder v. Kunkelman, 512. 
 Snyder v. Partridge, 286. 
 So. Omaha National Bank v. Chase, 
 
 "3- 
 So. White Lead Co. v. Hass, 189. 
 Society v. Hitchcock, 515. 
 Sockman v. Sockman, 544. 
 Soden v. Soden, 36, 506. 
 Sohin V. Johnson, 351. 
 Solberg v. Peterson, 199. 
 Solinsky v. Lincoln Savings Bank, 
 
 561. 
 Sommer v. Sommer, 517. 
 Sommermeyerz/.Sommermeyer, 45. 
 Sommerville v. Horton, 27, 120, 137, 
 
 187, 487. 
 
 Songer v. Partridge, 446, 483- 
 
 Sonstiby v. Keeley, 236. 
 
 South Bend Toy Co. v. Pierre F. 
 
 and M. Ins. Co., 192. 
 Southard v. Benner, 123, 135, 539. 
 Southworth v. Sheldon, 422. 
 Spader v. Davis, 564. 
 Spalding v. Norman, 607. 
 Sparks v. Mark, 225, 484. 
 Sparrow v. Chesley, 494. 
 Spaulding v. Austin, 42, 177, 181, 
 
 487. 
 Spaulding v. Blythe, 207, 287, 292, 
 
 548. 
 Spaulding v. Keyes, 130. 
 Spaulding v. Myers, 548. 
 Spaulding v. Strang, 199, 374, 404> 
 
 438, 594- 
 Spear v. Rood, 20. 
 Spears v. Shropshire, 306. 
 Speed V. May, 509. 
 Speer v. Skinner, 43, 239. 
 Speidel v. Henrici, 557. 
 gpeigleberg v. Hersch, 130. 
 Speise v. M'Coy, 302. 
 Spence v. Bagwell, 136. 
 Spence v. Dunlap, 287, 330. 
 Spence v. Smith, 34. 
 Spencer v. Armstrong, 536, 537. 
 Spencer v. Ayrault, 235. 
 Spencer v. Colt, 596. 
 Spencer v. Ford, 357. 
 Spencer v. Godwin, 290, 495. 
 Spencer v. Jackson, 40S, 430, 438, 
 
 439' 442- 
 Spencer v. Slater, 37, 419, 440. 
 Sperry v. Baldwin, 115, 130. 
 Spessard v. Rohrer, 442. 
 Spicer v. Ayres, 253, 330, 536. 
 Spicer v. Robinson, 498. 
 Spies V. Boyd, 124, 132, 488. 
 Spies V. Joel, 411. 
 Spies V. People, 578. 
 Spilman v. Payne, 353. 
 Spindler v. Atkinson, 287, 480. 
 Spinney v. Portsmoiith Co., 345, 
 
 426, 427. 
 Spinner v. Weick, 548. 
 
TABLE OF CASES CITED. 
 
 Ixxxv 
 
 [referbnces are To pages.] 
 
 Spirett V. Willows, 301. 
 
 Spirett V. Willows, 319. 
 
 Spivey V. Wilson, 107. 
 
 Splawtt V. Martin, 57, 206, 585. 
 
 Sporrer v. Eifler, 57. 
 
 Spotts V. Commonwealth, 570. 
 
 Spotten V. Keeler, 34. 
 
 Spring V. Chipman, 156. 
 
 Spring V. Strauss, 354. 
 
 Springfield Assn. v. Roll, 458, 460. 
 
 Springer v. Drosh, 457. 
 
 Spurgeon v. Collier, 230, 232, 315. 
 
 St. Armand v. Barbara, 334. 
 
 St. John V. Benedict, 451. 
 
 St. John V. Camp, 47, 44, 225, 233. 
 
 St. l/ouis M. Iv. Co. V. Cravens, 491. 
 
 Stackpoole v. Stackpoole, 308, 309. 
 
 Stacy V. Deshan, 183, 584. 
 
 Stadtler v. Wood, 119. 
 
 Stafford v. Stafford, 233. 
 
 Stall V. Fulton, 254, 265. 
 
 Stamford's Case, 519. 
 
 Stanbro v. Hopkins, 567. 
 
 Stancill v. Branch, 482. 
 
 Standiford v. Devoe, 319. 
 
 Standard Implement Co. v. Parlia 
 
 & O. Co., 159. 
 Standard Implement Co. v. Schultz, 
 
 126, 128. 
 Stanfield v. Simmons, 342. 
 Stanford v. Scaunell, 140. 
 Stanley v. Bunce, 124. 
 Stanley v. Robbins, 11, 147, 221, 
 
 227. 
 Stanley v. Wharton, 10. 
 Stanton v. Green, 45, 48, 49, 50, 59, 
 
 232, 217, 551, 552. 
 Stanton v. Keyes, 564. 
 Stanton v. Kirsch, 325. 
 Stanwix Bank v. Leggett, 549. 
 Staples V. Bradley, 486. 
 Staples V. Smith, 577. 
 
 Starin v. Kelly, 48, 208, 212, 218, 
 
 233. 457. 584- 
 Stark V. Grant, 109. 
 Stark V. Ward, 156, 499. 
 Starke v. Etheridge, 60. 
 Starke v. Littlepage, 458. 
 
 Starr v. Starr, 49, 50, 52, 233, 234, 
 
 570, 574- 
 Starr v. Strong, 48, 233. 
 Starr v. Wright, 460. 
 State V. Bank, 360. 
 State V. Bank of Maryland, 191, 400. 
 State V. Benoist, 27, 339, 386, 357, 
 
 369, 372, 421, 430 
 State V. Byrne, 134. 
 State V. Chapman, 9. 
 State V. Curran, 29. , 
 State V. Diveling, 482, 
 State V. Duraut, 45. 
 State V. Estel, 22, 210, 591, 593. 
 State z/. Evans, 46, 117, 218. 
 State V. Fife, 9, 502. 
 State V. Harrington, 594. 
 State V. Haworth, 10. 
 State V. Jacobs, 135. 
 State V. Keeler, 350, 371. 
 State V. King, 142. 
 State V. Mason, 20, 36, 45, 211. 
 State V. McBride, 40, 223. 
 State V. Morse, 185. 
 State V. Rosenfield, 115. 
 State V. Schulsin, 149. 
 State V. Small, 10. 
 State V. Smith, 115. 
 State V. Tasker, 134. 
 State V. Tubessing, 207. 
 State Bank v. Chapelle, 339. 
 State Bank v. Ellis, 547. 
 State Bank v. Harrow, 253, 526. 
 State Savings Bank v. Buck, 39. 
 State Sav. Bank v. Buck, 39. 
 Steadman v. Jones, 461. 
 Steadman v. Wilbur, 317, 322, 323, 
 
 324- 
 Stearns v. Gaze, 211, 227, 241, 492, 
 
 493- 
 Stearns v. Gosselin, 594. 
 Stebbins v. Miller, 584, 597. 
 Stedman v. Batchelor, 125. 
 Stedman v. Vickery, 233, 485. 
 Steele v. Brown, 61, 92, 156. 
 Steele v. DeMay, 56. 
 Steele v. Coon, 39. 
 Steele v. Moore, 197, 547. 
 
Ixxxvi 
 
 TABLE OF CASES CITED. 
 
 [references are to pages.] 
 
 Steele v. Parsons, 36, 57. 
 Steele v. Ward, 49, 58. 
 Steelwagon v. Jeffries, 70, 151, 162, 
 
 172. 
 Steere v Hoagland, 44, 58, 536, 601. 
 Stehman v. Huber, 479. 
 Stein V. Harris, 160. 
 Stein V. Hermann, 208. 
 Stein 0. La Dow, 362. 
 Stein V. Munch, 124, 129, 138. 
 Steinart v. D^uster, 135. 
 Stephens v. Barnett, 140, 151, 171, 
 
 273. 275. 277- 520, 557- 
 Stephens v. Beall, 531. 
 Stephens v. Gifford, no, in, 159, 
 
 268. 
 Stephens v. Harris, 234. 
 Stephens v. Harrow, 451. 
 Stephens v. Olive, 317. 
 Stephens v. Reginstein, 14, 148. 
 Stephens v. Sinclair, 254, 270. 
 Stephenson v. Clark, 144, 145, 147, 
 
 150. 
 Stephenson v. Hayward, 342, 367. 
 Sterling v. Ripley, 56, iii, 206, 211. 
 Sterling v. Van Cleve, 513, 514, 515, 
 Stern's Appeal, 513. 
 Stern v. Fisher, 395, 421, 567. 
 Stern v. Henley, 149. 
 Stetson V. Miller, 340. 
 Stevens v. Bell, 221, 341, 355. 394, 
 
 401, 413. 
 Stevens v. Breen, 126. 
 Stevens v. Dillman, 45, 53, 58. 
 Stevens v. Fisher, 97, 99, 162. 
 Stevens v. Hinkley, 42, 233, 236. 
 Stevens v. Irwin, 141, 142, 143, 149. 
 Stevens v. Morse, 448. 
 Stevens v. Olive, 288. 
 Stevens v. Pierce, 51. 
 Stevens v. Robinson, 285. 
 Stevenson v. Agry, 401. 
 Stevenson v. White, 259, 482. 
 Stevers v. Home, 292. 
 Steward v. Lombe, 151. 
 Steward v. Thomas, 49, 122. 
 Stewart v. Ackley, 447, 451. 
 
 Stewart v. Coder, 525. 
 Stewart v. Cohn, 253. 
 Stewart v. Dailey, 446. 
 Stewart v. Dunham, 184. 
 Stewart ». English, 368, 375, 527. 
 Stewart v. Fagan, 529. 
 Stewart v. Fenner, 576, 584. 
 Stewart v. Hall, 343. 
 Stewart v. Hopkins, 39. 
 Stewart v. Iglehart, 446. 45°. 453- 
 Stewart v. Isidor, 539; 
 Stewart v. Johnson, 578, 579. 
 Stewart v. Johnston, 481. 
 Stewart v. Kearney, 446, 447. 
 Stewart v. Kerrison, 339, 387, 439. 
 Stewart v. Mills Co. Nat. Bank, 38. 
 Stewart v. Nelson, 147. 
 Stewart v. Reed, 498. 
 Stewart v. Rogers, 293. 
 Stewart v. Scannell, 140. 
 Stewart v. Slater, 115, ;239. 
 Stewart v. Spencer, 344, 345, 372, 
 
 408, 409, 442. 
 Stewart v. Thomas, 580. 
 Stewart ®. Thompson, 557. 
 Stewart v. Wilson, 37. 
 Stickney v. Borman, 292. 
 Stickney ». Crane, 366, 372, 599, 600. 
 Stigler V. Stigler, 248, 249. 
 Stileman v. Ashdown, 316, 326. 
 Stiles V. Attorney General, 234, 
 
 235- 
 Stiles V. Hill, 338. 
 Stiles V. Lightfoot, 290, 330, 593. 
 Stiles V. Shumway, 145, 151, 162, 
 
 163. 
 Stiles V. Whitaker, 245. 
 Still V. Buzzell, 487. 
 Stillwell V. Mellersh, 256. 
 Stillwell V. Stillwell, 453, 456. 
 Stimson v. Wrigley, 113, 120,^502. 
 Stirling v. Wagner, 54, 218. 
 Stix V. Chaytor, 106. 
 Stix V. Keith, 210. 
 Stockgrowers Bank v. Newton, 39, 
 
 188. 
 Stockett V. HoUiday, 317, 320, 585. 
 
TABLE OF CASES CITED. 
 
 Ixxxvii 
 
 [rbfbrencss are to pages.] 
 
 Stockwell V. Silloway, 577. 
 Stoddard v. Butler, 36, 6i, 66, 72, 74, 
 
 97, loi, 140, 200, 483. 
 Stoke's Case, 519. 
 Stokes V. Ammerman, 253. 
 Stokes -v. Coffey, 251, 604. 
 Stokes V. Jones, 227, 497. 
 Stokoe V. Cowan, 248, 249, 251, 485. 
 StoUer V. Coates, 353. 
 Stone V. Anderson, 531. 
 Stone V. Bartlett, 461, 497. 
 Stone V. Grubbam, 27, 35, 38, 61, 78, 
 
 83, 87, 165, 484- 
 Stone V. Locke, 461. 
 Stone V. Manning, 529. 
 Stone V. Marshall, 372, 392, 401. 
 Stone V. Myers, 332, 336, 505. 
 Stone V. Sleeper, 159. 
 Stoner v. Comm., 462. 
 Stouer V. Commonwealth, 319. 
 Stores V. Snow, 459. 
 Storm V. Davenport, 417, 484. 
 Storm V. Waddell, 539, 566. 
 Storm V. Woods, 513. 
 Stout V. Stout, 471, 507, 545. 
 Stovall V. Farmers' Bank, 19, 120, 
 
 214, 218, 274, 275, 276, 278, 580, 
 
 605. 
 Stover V. Harrington, 43, 187. 
 Stowell V. Hazlett, 231, 576, 581 . 
 Straight v. Roberts, 189. 
 Stratton v. Putney, 24, 42. 
 Straw V. Jenks, 184. 
 Streeper v. Eckart, 37, 141, 164. 
 Strieker v. Tinkham, 510. 
 Striebyz/. Clinton Hill Co., 45. 
 Strike v. M'Donald, 546, 554, 555, 
 
 567, 603, 609, 610. 
 Stroff f. Swafford, 40, 212. 
 Strohm v. Hayes, 47, 525. 
 Strong V. Brewer, 580. 
 Strong V. Carrier, 354, 386, 387. 
 Strong V. Hines, 59. 
 Strong V. Skinner, 391, 395, 410, 
 
 600, 610. 
 Strong V. Strong, 45, 282, 298. 
 Strong V. Taylor, 245, 246. 
 Strong V. Willis,;467. 
 
 Stroudburg Bank's Appeal, 513. 
 Stuck V. Mackey, 226. 
 Stumbaughw. Anderson, 241. 
 Sturm V. Chalfant, 231. 
 Sturdivant v. Davis, 24, 220, 223, 
 
 227,519. 
 Sturtevaut v. Ballard, 25, 93, 95, 
 
 139, 161, 162. 
 Sugg V. Tillman, 409. 
 Suiter V. Turner, 121, 494. 
 Sukeforth v. Lord, 35. 
 Sullice V. Gradenigo, 447. 
 Sullivan v. Bonesteel, 462. 
 Sullivan v. Smith, 363. 
 Summers v. Babb, 481. 
 Summers v. Hoover, 232. 
 Summers v. Howland, 41, 53, 577, 
 Summers v. Roos, 129, 135, 136, 138, 
 
 240, 336. 
 Sumner v. Dalton, 145. 
 Sumner v. Hicks, 349, 422. 
 Sumner v. Murphy, 446. 
 Sumner v. Sawtelle, 253, 482. 
 Summer v. Woods, 158. 
 Superintendent v. Superintendent, 
 
 594- 
 Surcombe v. Pinninger, 315. 
 Surget V. Boyd, 207. 
 Surlott V. Beddow, 460. 
 Susong V. Williams, 232. 
 Sutherland v. Adm., 315. 
 Sutherland, In re, 250. 
 Sutherland v. Bradner, 21. 
 Sutter V. Lackmann, 581, 583, 590. 
 Sutton V. Chetwynd, 308. 
 Sutton V. Dana, 35, 184. 
 Sutton V. Hanford, 17, 18, 422. 
 Sutton V. Lord, 491. 
 Sutton V. Pettus, 517. 
 Sutton V. Shearer, 143. 
 Snydam v. Seals, 533. 
 Swaim v. Humphrey, 124, 128. 
 Swamscott Machine Co. v. Perry, 
 
 540- 
 Swan V. Crafts, 341. •' 
 
 Swan V. Morgan, 574. 
 Swan V. Smi:h, 501, 535. 
 Swanzey v. Hunt, 563. 
 
Ixxxviii 
 
 TABLE OF CASES CITED. 
 
 [references are to pages.] 
 
 Swartz V. Hazlet, 207, 241, 266, 280, 
 
 293. 296, 300, 302, 488. 
 Swayze v. McCrossin, .290. 
 Swearinger v. Slicer, 344. 
 Sweeney v. Coe, 106, 114. 
 Sweeney v. Conlee, 236. 
 Sweeney v. Damron, 288, 320. 
 Sweet V. Converse, 15. 
 Sweet V. Tinslar, 450, 451. 
 Sweet V. Taylor, 364. 
 Sweet V. Wright, 35. 
 Sweetster v. Bates, 584. 
 Sweetzer v. Mead, 574, 589. 
 Sweny v. Ferguson, 333. 
 Swift V. Avents, 526. 
 Swift V. Hart, 184. 
 §wift V. Holdridge, 599. 
 Swift V. Lee, 4a, 49, 51, 52, 58. 
 Swift V. Thompson, 70, 73, 144, 156, 
 
 162, 165, 173, 484. 
 Swigert v. Thomas, 513, 515. 
 Swihart v. Shaum, 570. 
 Swindersine v. Miscally, 505. 
 Swinerton v. Swinerton, 206. 
 Swinford v. Rogers, 487, 600. 
 Sword V. Low, 113. 
 Sydnor v. Gee, 65, 66, 105, 164, 166, 
 
 173, 180, 223. 
 Synge v. Synge, 124. 
 Syracuse Chilled Plow Co. v. Wing, 
 
 203, 248, 317, 323. 
 Taaffe v. Josephson, 486. 
 Talcott V. Crippen, 39. 
 Talcott V. Rosenthal, 369. 
 Talcott V. Wilcox, 149, 151. 
 Talley v. Curtain, 188. 
 Tallmadge v. Sill, 256. 
 Tallon V. Ellison, 135. 
 Tams V. Bullitt, 504. 
 Tams V. Richards, 601. 
 Tanner v. Byne, 235. 
 Tanqueray v. Bowles, 446. 
 Tantum v. Miller, 455. 
 Tapin v. Bamartini, 239, 240. 
 Tappan v. Butler, 50, 253, 327, 330. 
 Tappan v. Bvans, 252, 526, 527, 532, 
 
 538. 
 Tappan v. Nutting, 568. 
 
 Tapscottz/. Lyon, 34. 
 
 Tarback v. Marbury, 38, 52, 226, 
 
 335,388. 
 Tarbell v. Griggs, 534. 
 Tarleton v. Liddell, 489. 
 Tarver v. Roffe, 60. 
 Tate V. Liggatt, 466, 468, 529. 
 Tatum V. Hunter, 486. 
 Tavenner v. Robinson, 35, 45, 53, 
 
 103, 171. 
 Taylor v. Bowers, 446. 
 Taylor v. Bowker, 529. 
 Taylor v. Coenen, 248, 249, 293, 
 
 333- 
 Taylor v. Dawes, 241. 
 Taylor v. Deusterberg, 258. 
 Taylor v. Eubanks, 281, 285, 286, 
 
 289, 301, 571. 
 Taylor v. Heriot, 252, 253, 286, 293, 
 
 301, 304, 505. 
 Taylor v. Johnson, 290. 
 Taylor v. Jones, 229, 251, 280, 326, 
 
 527- 
 
 Taylor v. Miles, 253. 
 
 Taylor v. Mills, 69, 120, 171. 
 
 Taylor v. Moore, 45, 321, 586, 608. 
 
 Taylor v. Persee, 532. 
 
 Taylor v. Richardson, 106. 
 
 Taylor v. Robinson, 529, 577, 580. 
 
 Taylor v. Webb, 543, 544, 581. 
 
 Taylor v. Weld, 451. 
 
 Taylor v. Williams, 480. 
 
 Taylor v. Wyld, 502, 544. 
 
 Teasdale v. Reaborne, 301. 
 
 Tedrowe v. Esher, 578, 580, 583. 
 
 Teed v. Valentine, 290, 571. 
 
 Teeter v. Williams, 260. 
 
 Telford v. Adams, 457. 
 
 Teller v. Bishop, 320. 
 
 Ten Eyck v. Whitbeck, 44, 279. 
 
 Tennant— StriblingShoeCo. v. Gal- 
 lant, 124, 129. 
 
 Tennell v. Breedlove, 569. 
 
 Teunent v. Butler, 531. 
 
 Tennessee Nat. Bank v. l 
 Erbert, 
 
 Tennessee Nat. Bank v. ["4. 131- 
 Ebbert, 
 
TABLE OF CASES CITED. 
 
 Ixxxix 
 
 [referbncks are to pages ] 
 
 Terhune v. Skinner, 34. 
 
 Terrell v. Green, 30, 217. 
 
 Terrell v. Imboden, 446. 
 
 Territory v. Clark, 10. 
 
 Terry v. Belcher, 187, 188. 
 
 Terry v. Butler, 387, 392. 
 
 Terry v. Fontaine, 558. 
 
 Terry v. Hunger, 473, 474. 
 
 Tevis V. Doe, 254, 525. 
 
 Texas Bank v. L,ovenberg, 135. 
 
 Teynham v. MuUins, 310. 
 
 Thacher v. Phinney, 289, 594. 
 
 Thain v. Rudisill, 569. 
 
 Thames v. Rembert, 30, 32, 212, 
 
 493. 495> S50, 591- 
 Thayer v. Willett, 503. 
 Therasson v. Hickok, 410, 472, 544, 
 
 600, 610. 
 Thigpen v. Pitt, 540. 
 Third Nat. Bank v. Elliott, 192. 
 Thomas v. Beck, 577. 
 Thomas v. DeGraffenreid, 290, 330, 
 
 582. 
 Thomas v. Goodwin, 599. 
 Thomas v. Hillhouse, 113, 179. 
 Thomas v. Jenks, 439. 
 Thomas v. Phillips, 539. 
 Thomas v. Soper, 447. 
 Thomas v. Talmadge, 371, 408, 409. 
 Thomason b. Neeley, 482, 551. 
 Thompson v. Adams, 250. 
 Thompson v. Benner, 21. 
 Thompson v. Bickford, 600, 605, 
 
 606. 
 Thompson's Appeal, 517 
 Thompson v. Blanchard, 102. 
 Thompson v. Cundiff, 248. 
 Thompson v. Drake, 35, 37 43, 59, 
 
 606, 608. 
 Thompson v. Drug Co., 201. 
 Thompson v. Peagin, 39, 56, 318. 
 Thompson v. Purr, 199,207. 
 Thompson v. Hammond, 285. 
 Thompson v. Lee, 492. 
 Thompson v. Huron Lumber Co . 
 
 17, 192, 193. 
 Thompson v. M'Kean, 491. 
 Thompson v. Moore, 461. 
 
 Thompson v. Paret, 157. 
 Thompson v. Pennell, 42, 606. 
 Thompson v. Sanders, ) , 
 Thompson v. Saunders, y ^°°' 593- 
 Thompson v. Thompson, 467, 505. 
 Thompson v. Tower Mfg. Co., 59. 
 Thompson v. Towne, 256. 
 Thompson v. Van Vechten, 270, 
 
 515- 
 Thompson v. Walker, 159. 
 Thompson v. Webster, 218, 282, 285, 
 
 287, 293, 299. 304. 
 Thompson v. Wilhite, 140, 173, 177. 
 Thompson v. Yeck, 169. 
 Thomson v. Dougherty, 11, 229, 
 
 275, 280, 281, 288, 327, 328, 332, 
 
 476, 477, 484, 503. 
 Thornburg v. Bowen, 446. 
 Thornburg v. Hand, 465. 
 Thornburg v. Baxter, 544, 545. 
 Thorne v. Bank, 109. 
 Thornton v. Cook, 148. 
 Thornton v. Davenport, 36, 165, 198. 
 Thornton v. Hook, 492, 590. 
 Thornton v. Tandy, 198, 581. 
 . Thorpe v. Beavans, 226, 278. 
 Thorpe v. Thorpe, 191. 
 Thouron v. Pearson, 39. 
 Thrall v. Spencer, 483. 
 Threlkel v. Scott, 575. 
 Thurber v. Blanck, 531. 
 Thurber v. Sexauer, 235. 
 Thuret v. Jenkins, 511. 
 Thurmond v. Andrews, 539. 
 Thurmond v. Reese, 531. 
 Thurston v. Cornell, 594. 
 Thyson v. Foley, 253. 
 Tibballs v. Jacobs, 49, 182, 229. 
 Tichnor v. Allen, 539, 544. 
 Tickner v. Wiswall, 123, 487. 
 Ticknor v. McClelland, 173. 
 Tiffany z/. Warren, 464. 
 Tift V. Barton, 118. 
 Tifts V. Bunker, 589. 
 Tift V. Walker, 42. 
 Tilford's Case, 396. 
 Tillinghast v. Bradford, 244. 
 Tillman v. Heller, 36, 55. 
 
xc 
 
 TABLE OF CASES CITED. 
 
 [reperbncbs are to pages.] 
 
 Tillman v. Janks, no. 
 
 Tillou V. Britton, 183, I96. 
 
 Tobias v. Francis, 70, 165, 173. 
 
 Toby V. Reed, 73. 
 
 Todd V. Bucknam, 344, 345. 355. 
 
 438, 441. Sii- 
 Todd V. Hartley, 290, 330, 333, 334. 
 Todd V. Monell, 227. 
 Todd V. Neal, 612. 
 Tognini v. Kyle, 20, 43, 109, 59I. 
 Tolbert v. Horton, 529. 
 Toliver v. Morgan, 569. 
 Tolman v. Ward, 306. 
 Tomes Francis, in re, 271. 
 Tomlin v. Crawford, 496. 
 Tomlinson v. Matthews, 191, 203, 
 
 318. 
 Tompkins v. Hunter, 184. 
 Tompkins v. Levy, 250, 545. 
 Tompkins v. Merriman, 189. 
 Tompkins v. Nichols, 49, 58, 122, 
 
 206, 593. 
 Tompkins v. Sprout, 607. 
 Tompkins v. Wheeler, 343, 356, 387, 
 
 401, 403, 404. 
 Toole V. Darden, 498. 
 Tootle V. Coldwell, 374. 
 Tootle z/. Dunn, 207. 
 Torbert v. Hayden, 124. 
 Totten V. Brady, 188. 
 Toulmin v. Buchanan, 307. 
 Towle V. Hoitt, 42, 224, 485. 
 Town V. Bank, 403. 
 Towns V. Smith, 290. 
 Townsend v. Empire Co., 239. 
 Townsend v. Harwell, 345, 372. 
 Townsend v. Maynard, 302. 
 Townsend v. Stearns, 366, 375, 376, 
 
 418. 
 Townsend v. Tuttle, 500. 
 Townsend v. Westacott, 289, 293, 
 
 294, 566, 567, 568. 
 Townsend v. Windham, 256, 288, 
 
 290. 305. 330- 
 Towsley v. McDonald, 183, 233. 
 Trabue v. Willis, 137. 
 Tracy v. Walker, 271. 
 Trager v. Feebleman, 285, 286. 
 
 Train v. Wellington, 518. 
 Traip v. Gould, 526. 
 Trapnell v. Conklyn, 319. 
 Trask v. Bowers, 73, 140, 149, 151. 
 Treadway v. Turner, 59. 
 Treadwell ». Brown, 527. 
 Trego V. Skinner, 545. 
 Trempner v. Barton, 447, 449. 
 Tresch v. Wirtz, 263, 265. 
 Trezevant v. Courtenay, 576. 
 Trieber v. Andrews, 113, 206. 
 Trieber v. Green, 440. 
 Trimble v. Doty, 454. 
 
 Trimble V. RatclifE, I ^?. 45, 49. 58, 
 Trimble ..Ratcliffe,[|f,.J«°;||. 
 
 Trimble v. Turner, 24, 275, 277, 334, 
 
 578. 
 Trimble v. Woodhead, 539, 540. 
 Triplett V. Witherspoon, 448. 
 Tripner v. Abraham, 324, 580, 597. 
 Tripp V. Childs, 58, 260, 261. 
 Tripp V. Vincent, 43, 334, 561, 607. 
 Trippe V. Ward, 536. 
 Trott V. Warren, 491. 
 Trotter v. Watson, 582, 583. 
 Trough Henry, In re, 302. 
 Troughton v. Troughton, 257. 
 Troustine v. Lask, 204, 488. 
 Trowbridge v. Sickler, 21. 
 Troxall v. Dunnock, 206. 
 True V. Congdon, 365, 426, 427. 
 Truitt V. Caldwell, 410, 420, 422. 
 Truitt V. Ludwig, 513, 515. 
 Trumbo v. Hamel, 410. 
 Trumbull v. Hewitt, 254. 
 Truscott V. King, 240. 
 Truss V. Davidson, 356. 
 Trust Co. V. Ry. Co., 560. 
 Trust Co. V. Sedgwick, 294. 
 Tryon v. Flournoy, 39, 42, 49. 
 Tubb V. Williams, 33, 35, 4s,'48, 57, 
 
 479, 600, 605. 
 Tucker v. Bond, 515. 
 Tucker v. Drake, 257. 
 Tucker v. Zimmerman, 544. 
 Tuckwood V. Hanthorn, 112. 
 Tuesley v. Robinson, 446. 
 
TABLE OF OASES CITED. 
 
 XCl 
 
 [referencbs are to pages.] 
 
 Tufts V. Du Bignon, 459 
 
 Tufts V. Thompson, 160. 
 
 Tuite V. Stevens, 478. 
 
 Tully V. Harloe, 239, 240. 
 
 Tuneson v. Chamblin, 330. 
 
 Tunnell v. Jefferson, 221, 233. 
 
 Tunno v. Trezevant, 306. 
 
 Tupper V. Thompson, 227. 
 
 Turbervill v. Tipper, 28. 
 
 Turberville v. Gibson, 43, 607. 
 
 Turner v. Campbell, 457. 
 
 Turner v. Coolidge, 176. 
 
 Turner v. Jaycox, 375, 400. 
 
 Turner v. Killian, 130. 
 
 Turner v. McFee, 114. 
 
 Turner v. Turner, 503. 
 
 Turner v. Vaughan, 482. 
 
 Turnipseed v. Schaefer, 256, 401. 
 
 Tumley v. Hooper, 304. 
 
 Turvil V. Tupper, 504. 
 
 Tuttle V. Turner, 496, 578. 
 
 Twin Lick Oil Co. v. Marburg, 192. 
 
 Twopenny v. Peyton, 245. 
 
 Twyne's Case, 7, 8, 9, 29, 33, 34, 36, 
 38, 41, 51. 75, 92. 106, 199, 207, 
 222, 223, 229, 280, 294, 500, 504. 
 
 Tyberant v. Raucke, 58, 207. 
 
 Tyler v. Angevine, 576. 
 
 Tyler v. Carlton, 587. 
 
 Tyler v. Leeds, 517. 
 
 Tyler v. Peatt, 529, 530, 533. 
 
 Tyler v. Tyler, 39, 40, 483, 503. 
 
 Tyner v. Somerville, 228. 
 
 Tyrer». Littleton, 20. 
 
 Uhl V. Dillon, 521, 522. 
 
 XJhlerz'. Maulfair, 197, 216. 
 
 Tillman v. Crenshaw, 209. 
 
 Underwood v. Dngan, 557. 
 
 Unger v. Price, 321. 
 
 Ungley V. Ungley, 316. 
 
 Union Bank v. Ellicott, 360. 
 
 Union Bank v. Toomer, 206, 218, 
 
 233, 304- 
 Union Bank of Chicago v. Kansas 
 
 City Bank, 184. 
 Union Mutual Life Insurance Co. v. 
 
 Spaids, 331. 
 Union Nat'l Bank v. Goetz, 352, 
 
 Union Nat'l Bank v. Warner, 199, 
 
 543, 544, 549- 
 Union Nat. Bank v. Kansas City 
 
 Nat. Bank, 185. 
 Updegroff v. Theaker, 286. 
 Updike V'. Titus, 231, 241. 
 Upson V. Raiford, 164, 582. 
 Upton V. Craig, 337. 
 Upton V. McLaughlin, 554. 
 Usher v. Hazletine, 229, 330, 506. 
 Utley V. Smith, 150. 
 U. P. Ry. Co. V. Smersh, 258. 
 U. S. V. Bank of U. S., 402, 403. 
 U. S. V. Bank of U. S., 351, 365, 
 
 430. 509. 
 U. S. V. Conynghan, 513. 
 U. S. V. Griswold, 336, 475, 582, 
 
 586, 603. 
 U. S. V. Hooe, 62, 165, 166, 239, 240. 
 U. S. v. Lennox, 239. 
 U. S. V. Lottridge, 37. 
 U. S. V. Mertz, 242, 574, 586. 
 U. S. V. Poole, 474. 
 U. S. V. Steiner, 326, 505. 
 U. S. Bank v. Huth, 341, 342, 346, 
 
 354, 355, 359, 3^5, 366, 371, 383. 
 
 402, 428, 430, 509, 511. 
 Vail z/. Jameson, 191. 
 Valley Distilling Co. v. Atkins, 106. 
 Van Bibber v. Mathis, 230, 292. 
 Van Buren v. Stocking, 558. 
 Van Buskirk v. Warren, 102, 221, 
 
 410, 422, 509. 
 Van Deusen v. Frink, 15. 
 Van Dine v. Willett, 424, 425. 
 Van Etten v. Hurst, 461. 
 Van Hook v. Walton, 355, 356, 369, 
 
 387, 396, 413. 
 Van Home v. Fonda, 609. 
 Van Keuren v. McLaughlin, 484. 
 Van Kirk v. Wilds, 503, 577, 583. 
 Van Kleech v. Miller, 39, 214, 231, 
 
 323, 545- 
 Van Mater v. Ely, 395. 
 Van Meter V. Estill, 107. 
 Van Nest v. Yoe, 26, 355, 377, 380, 
 
 382, 383, 387, 397, 424, 425, 427, 
 
 467. 
 
XCll 
 
 TABLE OF OASES OITED. 
 
 [references are to pages.] 
 
 Van Peltz'. Littler, 143. 
 
 Van Raalte v. Harrington , 190, 209, 
 
 212. 
 Van Rossum v. Walker, 399, 413, 
 
 421. 
 Van Vleet v. Sratton, 260, 356. 
 Van Winkle v. McKee, 347, 437. 
 Van Wy v. Clark, 458, 459. 
 Van Wyck v. Baker, 46, 562, 612. 
 Van Wyck v. Seward, 241, 280, 282, 
 
 283, 295, 298, 304, 501, 505, 610. 
 Valentine v. Decker, 346. 
 Vallance v. Miners' Ins. Co., 221. 
 Vance v. McLaughlin's Adm., 265. 
 Vance v. Phillips, 29, 119. 
 Vance v. Smith, 288, 330, 502, 580. 
 Vandall v. Vandall, 33, 55, 57. 
 Vanderheyden v. Mallory, 247. 
 Vandyke v. Christ, 484. 
 Vanmeter v. Vanmeter, 236. 
 Vansands v. Miller, 383. 
 Vanscoy v. Bigelow, 177. 
 Vansickle v. Brown, 594. 
 Vanston v. Davidson, 227. 
 Vanzant v. Davies, 448. 
 Varnum v. Camp, 510, 511. 
 Vason V. Bell, 309. 
 Vasser v. Henderson, 529, 530, 538. 
 Vaughan v. Evans, 394, 410, 414, 
 
 421. 
 Vaughn v. Richardson, 16. 
 Vaughan v. Thompson, 257, 482. 
 Veazie v. Holmes, 246. 
 Veuable v. Bank, 33, 37, 43, 49, 52, 
 
 54, 55. 58, 545. 581- 
 Verner v. Downs, 530. 
 Verney's Case, 268. 
 Vernon v. Morton, 386, 387, 401, 
 
 424. 428. 
 Verselius v. Verselius, 543. 
 Vertner v. Humphreys, 332. 
 Viall V. Bliss, 341. 
 Vick V. Keys, 38. 
 Victor V. Levy, 40, 196. 
 Vincent v. Snoqualmie Mill Co., 17. 
 Viole);t v. Violett, 206. 
 Visher v. Webster 151, 173, 580. 
 Vogler V. Montgomery, 4S2. 
 
 Vogt V. Ticknor, 568, 585. 
 Voorhis v. Bonesteel, 262. 
 Voorhis v. Langsdorf , 134. 
 Voorhis v. Michaelis, 188. 
 Vose V. Holcomb, 438, 469. 
 Vose V. Stickney, 137, 187. 
 Vredenbergh v. White, 93, 387, 400. 
 Vrooman v. Griffith, 262. 
 Waddams v. Humphreys, 11, 189. 
 Waddingham v. Loker, 261, 593. 
 Wade V. Green, 461. 
 Wade 71. Saunders, 471, 492. 
 Wadsworth v. Havens, 336, 476, 538^ 
 Wadsworth v. Schisselbauer, 535. 
 Wadsworth v. Williams, 538. 
 Wafer v. Harvey County Bank, 39. 
 Waggoner v. Cooley, 499, 582. 
 Wagner v. Johns, 135, 477. 
 Wait V. Bull's Head Bank, 238. 
 Wait V. Day, 237, 238, 254. 
 Wait V. Green, 159. 
 Waite V. Hudson, 188. 
 Wake V. Griffin, 36, 322. 
 Wakefield v. Gibbon, 489, 567. 
 Walcott V. Almy, 35, 50, 58, 208, 
 
 254, 292, 527. 
 Walcott V. Brander, 208. 
 Walcott V. Keith, 178, 582. 
 Walden v. Murdock, 173, 175, 180, 
 
 197. 
 Waldie v. Doll, 143. 
 Waldron v. Haupt, 245. 
 Wales V. Alden, 511. 
 Wales V. Bowdish, 244. 
 Walker John C. In re, 409, 422. 
 Walker v. Adair, 187, 384. 
 Walker's Adm. v. Peck, 325. 
 Walker v. Barker, 395. 
 Walker v. Bollman, 326. 
 Walker v. Burrows, 14, 288, 330, 
 
 587. 
 Walker v. Lovell, 465, 
 Walker v. McConnico, 457. 
 Walker v. Mitchell, 159. 
 Walker v. Reamy, 324. 
 Walker v. Suediker, 240. 
 Wall V. Fairley, 253, 541, 544. 
 Wall V. Provident Inst., 448. 
 
TABLE OF OASES CITED. 
 
 XClll 
 
 [rbfbrbncbs arb to pagbs.] 
 
 Wall V. White, 483. 
 
 Wallace v. Eaton, 543. 
 
 Wallace v. Lincoln Savings Bank, 
 
 360. 
 Wallace v. Treakle, 564. 
 Waller v. Cralle, 145, 162. 
 Waller v. Mills, 456. 
 Waller v. Shannon, 545. 
 Waller v. Todd, 168, 182, 483, 535, 
 
 541- 
 Wallis V. Adoue, 209. 
 Wallis V. Snyder, 188. 
 Walrath v. Campbell, 574. 
 Walradt v. Brown, 500, 502, 506. 
 Walsh V, Byrnes, 332. 
 Walsh V. Kelley, 188, 238. 
 Walsh V. Ketchum, 285. 
 Walter v. McNabb, 57, 553. 
 Walter v. Riehl, 545. 
 Walter v. Wimer, 124, 134. 
 Walters v. McLellan, 61. 
 Walters v. Whitlock, 386, 508, 509, 
 
 5"- 
 Walthall V. Rives, 60, 546. 
 Walton V. Bonham, 457. 
 Walton V. Tusten, 451, 461. 
 Walworth v. Readsboro, 173. 
 Walwyn v. Couts, 347. 
 Wanamaker v. Bowes, 464. 
 Ward V. Cooke, 240. 
 Ward V. Crotty, 321, 608. 
 Ward V. Enders, 336, 563. 
 Ward V. Hollins, 334, 544. 
 Ward V. Lamberth, 275. 
 Ward V. Lamson, 341. 
 Ward V. McKenzie, 464. 
 Ward V. Shallett, 320, 598. 
 Ward V. Sumner, 165. 
 Ward V. Tingley, 377, 391, 425- 
 Ward V. Trotter, 342, 370, 495. 
 Ward V. Van Bokkelen, 504, 
 Ward V. Wehman, 53. 
 Ward V. Wofiord, 217, 574. 
 Warden v. Browning, 565. 
 Warden v. Jones, 232, 251, 313, 315. 
 Ware v. Gardner, 328. 
 Ware v. Purdy, 27. 
 
 Warfield v. Marshall Co. Canning 
 
 Co., 192. 
 Warmoll v. Young, 517, 518. 
 Warneford's Case, 28. ' 
 
 Warner v. Blakeman, 273, 599, 603. 
 Warner v. Carlton, 144, 149. 
 Warner v. Dove, 299, 571. 
 Warner Glove Co. v. Jennings, 21. 
 Warner v. Jaffray, 509, 510. 
 Warner v. Littlefield, 20, 185. 
 Warner v. Norton, 38, no, 173, I77. 
 Warner v. Percy, 28, 571. 
 Warner v. Roth, 159. 
 Warner v. Warren, 26. 
 Warren v. Carpenter, 116. 
 Warren v. Hall, 465, 519, 521. 
 Warren v. His Creditors, 125. 
 Warren v. Jones, 184. 
 Warren v. Moody, 539. 
 Warren v. Ranney, 318, 322. 
 Warren v. Warren Thread Co., 351. 
 Warren v. Williams, 504, 577, 584. 
 Wash V. Medley, 48, 163. 
 Washband v. Washband, 230, 235, 
 
 279. 
 Washburn v. Hammond, 21. 
 Washington Brewery Co. v. Carry, 
 
 235- 
 Washington Central Bank v. Hume, 
 
 248, 249, 250. 
 Washington v. Opie, 558. 
 Washington v. Ryan, 343. 
 Waterbury v. Sturtevant. 578, 579. 
 Waterbury v. Sturtevant, 187, 189, 
 
 I95> 197. 198> 206, 209, 553. 
 Waterbury v. Westervelt, 446, 480. 
 Waterhouse v. Benton, 467. 
 Waterman v. Donalson, 45, 57, 593. 
 Waterman v. Silberberg, 338, 374. 
 Waters v. Dashiell, 504, 573, 584. 
 Waters v. McClellan, 169. 
 Waters v. Riggin, 42. 206, 574, 582, 
 
 587- 
 Waterson v. Wilson, 330. 
 Watkins v. Arms, 21, 42. 
 Watkins v. Birch, 62, 170, 171. 
 Watkins v. Wallace, 377, 378, 379, 
 
 423, 424, 594> 597- 
 
XCIV 
 
 TABLE OF CASES CITED. 
 
 [RSFBRaNCES ARE TO PAGES.] 
 
 Watrous v. Lathrop, 531. 
 Watson V. Cliesire, 594. 
 Watson V. Dickens, 208. 
 Watson V. Kennedy, 57, 6or. 
 Watson V. New York Central R. R. 
 
 C, 566. 
 Watson V. Williams, 128, 165, 166. 
 liVatts V. Gale, 536. 
 Watts V. Kilburn, 508, 
 Watts V. Thomas, 222, 335. 
 Waverly Bank v. Halsey, 369. 
 Waverly National Bank v. Halsey, 
 
 408. 
 Wayw. Bragaw, 541, 545. 
 Wearse v. Peirce, 459. 
 Weaver v. Ashcroft, 272, 576. 
 Weaver v. Haviland, 532, 555, 557. 
 Weaver v. Joule, 91, 120, 136, 167. 
 Weaver z;., Nugent, 233. 
 Weaver v. Owens, 28. 
 Weaver v. Wright, 57. 
 Webb V. Brown, 498, 499. 
 Webb V. Daggett, 392, 566, 567. 
 Webb V. Ingham, 52. 
 Webb V. Ro£E, 203, 226, 333. 
 Weber v. Armstrong, 135. 
 Webber v. Farmer, 305. 
 Webber v. Mackey, 189. 
 Weber v. Mick, 185. 
 Weber v. Rothchild, 207, 494, 503. 
 Weber v. Samuel, 439, 539, 600. 
 Webster v. Clark, 529. 
 Webster v. Folsom, 206, 254, 525. 
 "Webster v. Harper, 519. 
 Webster v. Hildreth, 255, 260, 264. 
 "Webster v. Peck, 164. 
 "Webster v. Van Steenburgh, 279. 
 Webster v. Witbey, 227, 254, 529. 
 Wedekind v. Parsons, 548. 
 Wedgwood v. Bank, 126. 
 Weed V. Davis, 281, 302. 
 Weed V. Pierce, 12, 252, 527, 565, 
 
 603. 
 Weeden v. Bright, 230. 
 Weeden v. Hawes, 43, 607. 
 Weeks v. Hill, 230. 
 Weeks v. Prescott, iii, 147, 151. 
 Weeks v. Wead, 139, 143, 169. 
 
 Weightman v. Hatch, 530, 534. 
 Weil V. Paul, 143, 149, 155, 169. 
 Weil V. Silverstone, 574. 
 Weinrich v. Porter, 581. 
 Weinstein v. Freyer, 509. 
 Weir V. Hale, 513, 515. 
 Weir Plow Co. v. Carroll, no. 
 Weise v. Wardle, 543. 
 Weisiger v. Chisholm, 29. 
 Weisiger v. Chisholm, 208. 
 Weisner v. Farnham, 57. 
 Welby V. Armstrong, 457. 
 Welch V. Kline, 262. 
 Welch V. Sackett, 343. 
 Welcker v. Price, 292, 551. 
 Welcome v. Balchelder, 199, 292. 
 Weller v. Wayland, 27, 181, 197, 
 
 487. 
 Welles V. Cole, 235, 306. 
 Welles V. March, 362. 
 Wellington v. Fuller, 292. 
 Wellington v. Small, 523. 
 Wells V. Stout, 317, 330. 
 Wells V. Thomas, 45. 59. 
 Welsh V. Bekey, 121, 124, 165, 175, 
 
 181, 447- 
 Welsh V. Welsh, 447. 
 Wescott V. Gunn, 239. 
 Wessels v. Beemau, 20. 
 West V. Sanders, 252, 527. 
 West V. Skip, 514. 
 West V. Snodgrass, 226, 389, 441. 
 West V. Tupper, 358, 509. 
 Westfall V. Jones, 459. 
 Westlake v. Ridout, 268. 
 Westmoreland!/. Powell, 9, 296, 502. 
 Wetherellz/. O'Brien, 352. 
 Wetzler v. Kelly, 140. 
 Whallon v. Scott, 388. 
 Wheaton v. Neville, 19, 189, 197, 198. 
 Whedbee v. Stewart, 440. 
 Wheadon v. Huntingdon, 16. 
 Wheedon v. Champlin, 260. 262. 
 Wheelden v. Wilson, 19, 33, 51, 57, 
 
 594- 
 Wheeler v. Biggs, 264. 
 Wheeler v. Caryl, 305, 316, 319. 
 Wheeler v. Emerson, 319. 
 
TABLE OF OASES CITED. 
 
 XCV 
 
 [rEFERBNCBS are to PAGES.] 
 
 Wheeler v. Kirtland, 599. 
 
 Wheeler v. Konst, 246. 
 
 Wheless v. Rhodes, 595. 
 
 Wheeler v. Sumner, 341. 
 
 Wheeler v. Taylor, 529. 
 
 Wheeler v. Train, 164, 
 
 Whigham's Appeal, 177. i 
 
 Whipple V. Cass, 519. 
 
 Whipple V. Foot, 516. 
 
 Whipple V. Pope, 376, 422, 426. 
 
 Whipple V. Thayer, 511. 
 
 Whitaker v. Garnett, 586. 
 
 Whitaker v. Summer, 42. 
 
 Whitcomb v. Woodworth, 160. 
 
 White V. Banks, 600. 
 
 White V. Beltis, 302, 329, 597, 506. 
 
 White V. Cole, 99. 
 
 White V. Chapin, 352. 
 
 White V. Cooper, 246. 
 
 White V. Cotzhausen, 185. 
 
 White V. Drocaw, 460. 
 
 White V. Graves, 202, 214, 606. 
 
 White V. Hildreth, 264. 
 
 White V. Morris, 465. 
 
 White V. Monsarrat, 423, 430. 
 
 White V. O'Brien, 172. 
 
 White V. Perry, 208, 581, 592. 
 
 White V. Russell, 447, 501, 536. 
 
 White V. Sansom, 257, 320, 334, 505, 
 
 566. 
 White V. State, 594. 
 White V. Stringer, 309. 
 White V. Trotter, 275, 277, 278, 593. 
 White V. White, 483. 
 White V. Winn, 437, 438. 
 White V. Witt 302. 
 Whitehall v. Crawford, 479. 
 Whitescarver v. Bonny, 330. 
 Whitesel v. Hiney, 295, 548. 
 Whitfield V. Stiles, 188. 
 Whitfield V. Whitfield, 463. 
 Whithead v. Mallory, 481. 
 Whithed v. Pillsbury, 485. 
 Whiting V. Barrett, 257, 611. 
 Whiting V. Beckwith, 265. 
 Whiting V. Johnson, 486, 517, 586, 
 
 59°- 
 Whiting Mfg. Co. v. Gephart, iii. 
 
 Whitmore v. Woodward, 336, 545. 
 Whitney v. Brunette, iii. 
 Whitney v. Eaton, 159. 
 Whitney v. Freeland, 469. 
 Whitney v. Krows, 422, 424. 
 Whitney v. Levon, 130. 
 Whitney v. Rose, 54. 
 Whitney v. Stearns, 253. 
 Whitney v. Ticonderoga, 54. 
 Whittacre v. Puller, 235. 
 Whitridge vi Whitridge, 558. 
 Whitson V. Griffis, 56, 59, 120, 129. 
 Whittier v. Prescott, 302. 
 Whittier v. Varney, 577. 
 Whittington v. Jennings, 256, 333. 
 WhittleshofEer v. Straus, 113. 
 Whittlesey v. McMahon, 253, 318. 
 Whitwell V. Warner, 192. 
 Wich V. Parker, 550. 
 Wickes V. Clarke, 317, 319, 322, 587. 
 Wickham v. Green, 414. 
 Wickham v. Miller, 94, 208. 
 Widgery v. Haskell, 341, 437. 
 Wieman v. Anderson, 324. 
 Wiggans v. Armstrong, 522. 
 Wightman v. Hart, 57, 553. 
 Wilbur V. Fradenburgh, 330, 333, 
 
 334, 387- 
 Wilber v. Kray, 124, 131. 
 Wilber v. Wilber, 321. 
 Wilbur V. Stickland, 582. 
 Wilburn v. Wilburn, 250. 
 Wilcox V. Fitch, 502. 
 Wilcox V. Jackson, 127, 147. 
 Wilcox V. Kellogg, 271. 
 Wilcox V. Landberg, 20. 
 Wilcox V. Watson, 519. 
 Wilde V. Rawlings, 438. 
 Wilder v. Brooks, 302. 
 Wilder v. Fondey, 44, 486. 
 Wilder v. Winne, 196, 197, 239. 
 Wilding V. Richards, 347. 
 Wilds V. Bogan, 590. 
 Wile V. Butler, 125, 127, 
 Wiley V. Bradley, 548. 
 Wiley v. Collins, 341, 401. 
 Wiley V. Gray, 320. 
 Wiley V. Knight, 47, 137, 214, 605. 
 
XCVl 
 
 TABLE OF CASES CITED. 
 
 [rBFBREnces are to pages.] 
 
 Wiley V. Lashlee, 42, no, 187, 195. 
 Wilhelmi v. Leonard, 124, 267, 465, 
 
 517- 
 Wilhoyte v. Udell, 210. 
 Wilkes V. Ferris, 401, 410. 
 Wilkerson v. Schoonmaker, 569, 
 
 570- 
 Wilkinson v. Bauerle, 19I. 
 Wilkinson v. Wilkinson, 191. 
 Willets V. Vandenburgh 529. 
 Wm. Deering & Co. v. Washburn, 
 
 125, 128. 
 W. W. Kendall Boot and Shoe Co. 
 
 V. Bain, i8g. 
 Williams, Ex parte, its.. 
 Williams v. Anderson, 23. 
 Williams v. Avent, 446, 480. 
 Williams v. Avery, 336. 
 Williams v. Banks, 296, 298, 326, 
 
 334, 506, 554, 555. 584- 
 Williams v.. Barnett, 32. 
 Williams v. Bizzell, 466. 
 Williams v. Brown, 187, 529. 
 Williams v. Casebeer, 581. 
 Williams v. Cheeseborough, 44, 51. 
 Williams v. Clink, 458. 
 Williams v. Davis, i5, 288, 328, 330. 
 Williams v. Evans, 20. 
 Williams v. Frost, 362. 
 Williamson v. Goodwyn, 45. 
 Williams v. Haynes, 569. 
 Williams v. Higgins, 446. 
 Williams v. Hubbard, 531, 532. 
 Williams v. Jones, 188. 189, 192, 
 
 507- 
 
 Williams v. Kelsey, 44, 120, 582. 
 
 Williams v. Lomas, 256. 
 
 Williams v. Lovye, 495. 
 
 Williams v. Lowndes, 36, 161. 
 
 William and Mary College v. Pow- 
 ell, 585- 
 
 Williams v Merritt, 539. 
 
 Williams v. Michenor, 531, 541, 545. 
 
 Williams v. Robbins, 237, 583. 
 
 Williams v. Thompson, 480. 
 
 Williams v. Tipton, 535. 
 
 Williams v. Washington, 16. 
 
 Williams v. Whedon, 364. 
 
 Williams v. Williams, 447, 459. 
 Williams v. Winsor, 131. 
 Williamson v. Farley, 103. 
 Williamson v. Goodwyn, 49, 605. 
 Williamson v. Johnston, 515, 517, 
 
 518. 
 Williamson v. Nealey, 126, 129. 
 Willies V. Farley, 582. 
 Williford V. Conner, 462, 463. 
 Willingham v. Smith 49. 
 Willis V. Gattman, 292. 
 Willis V. Satterfield, 18. 
 Willis V. Thompson, 338. 
 Willis V. Whitsitt, 36. 
 Willison V. Desinberg, 43. 
 Williston V. Jones, 135, 138. 
 Willis V. Munro, 473. 
 Wilson, in re, 439, 442, 444, 473. 
 Wilson V. Anthony, 558. 
 Wilson V. Ayer, 183, 233, 320, 498. 
 Wilson V. Berg, 368, 408. 
 Wilson V. Buchanan, 285, 287, 293, 
 
 294, 301, 302, 333. 556. 
 Wilson V. Butler, 58. 
 Wilson V. Cheshire, 221. 
 Wilson V. Eifler, 371, 403. 
 Wilson V. Ferguson, 386, 387, 388, 
 
 422, 583. 
 Wilson V. Forsyth, 16, 183, 370, 372 
 
 379. 408, 574. 
 Wilson V. Fuller, 28, 206. 
 Wilson V. Hensley, 515. 
 Wilson V. Hill, 109, 112, 130. 
 Wilson V. Hillhouse, 586. 
 Wilson V. Hooper, 66, 139, 145, 152. 
 Wilson V. Horr, 53, 57, 561,598, 604. 
 
 606. 
 Wilson V. Howser, 589. 
 Wilson V. Jordan, 46. 
 Wilson V. Kohlhein, 285, 302. 
 Wilson V. Loomis, 263. 
 Wilson z-. Lott,- 25, 32, 34, 56, 57, 
 
 146, 149, 152, 206, 217, 598. 
 Wilson V. Pearson, 369. 
 Wilson V. Robertson, 238, 397, 422. 
 Wilson V. Russell, 165, 222, 251, 
 
 239, 240. 
 Wilson V. Sheppard, 321. 
 
TABLE OF CASES CITED. 
 
 xcvu 
 
 [rsferbnces arb to pagbs.] 
 
 Wilson V. Silkman, 318. 
 
 Wilson V. Sullivan, 130. 
 
 Wilson V. Taylor, 258. 
 
 Wilson V. Voight, 126, 127. 
 
 Wilt V. Franklin, 19, 62, 342, 353, 
 355> 357. 358, 367. 383. 400, 413. 
 
 Winch's Appeal, 525. 
 
 Winch V. James, 203, 226. 
 
 Winchester v. Charter, 21, 285, 329, 
 576, 581. 
 
 Winchester v. Craudall, 383, 544. 
 
 Winchester v. Reid, 235, 242. 
 
 Winchester Wagon Works v. Car- 
 man, 160. 
 
 Winebrinner v. Weisiger, 252, 288, 
 330, 527- 
 
 Wineburgh v. Schaer, 132. 
 
 Wineland v. Coonce, 491. 
 
 Winner v. Hoyh, 374. 
 
 Winer v. Warner, 28. 
 
 Winfield Nat. Bank v. Croco, 190. 
 
 Winkley v. Hill. 42. 
 
 Winn V. Barnett, 330, 447, 536. 
 
 Winter v. Walter, 324. 
 
 Wintringham v. I/afoy, 413. 
 
 Wintringham v. Wintringham, 517. 
 
 Wise V. Darby, 513. 
 
 Wise V. Moore, 207, 280. 
 
 Wise V. Tripp, 269, 492. 
 
 Wise V. Wilds, 34. 
 
 Wise V. Wimer, 371. 
 
 Wisner v. Farnham, 49. 
 
 Wiswall v. Ticknor, 119, 13b. 
 
 Wiswell V. Jarvis, 285, 302. ' 
 
 Witczinski v. Everman, 240. 
 
 Witherden v. Jumper, 331. 
 
 Witmer's Appeal, 522. 
 
 Wolf V. Carothers, 580. 
 
 Wolf V. Harris, 165. 
 
 Wolfe V. Beecher Mfg. Co., 446. 
 
 Wolfe V. Jaffray, 221. 
 
 Wolford V. Farnham, 253. 
 
 Wolfsheimer v. Rivinius, 427. 
 
 Woolston's Appeal, 287, 302. 
 
 Wolverhampton Bank v. Marston, 
 361, 367- 
 
 Woods V. Bugbey, 140, 174. 
 
 Wood V. Carpenter, 560. 
 
 Wood V. Chambers, 207, 257, 611. 
 
 Wood V. Clark, 204. 
 
 Wood V. Dixie, 19, 197. 
 
 Wood V. Dumners, 194. 
 
 Wood V. Franks, 36. 
 
 Wood V. Fox, 558. 
 
 Wood V. Gary, 513. 
 
 Wood V. GofE, 607. 
 
 Wood V. Hall, 129. 
 
 Wood V. Hunt, 207, 280, 484, 605, 
 
 611. 
 Wood, In re, 21, 34. 
 Wood V. Jackson, 497. 
 Wood V. Lowry, 113, 124. 
 Wood V. Perkins, 557. 
 Wood V. Robinson, 533. 
 Wood V. Savage, 232, 253, 315. 
 Wood V. Shaw. 50, 214, 215. 
 Wood V. Steele, 462. 
 Wood V. Wright, 495, 565. 
 Woodall V. Kelly, 227, 250. 
 Woodbridge v. Perkins, 121, 181. 
 Woodburn v. Mosher, 418, 430. 
 Wooderman v. Baldock, 93, 120, 
 
 156, 162. 
 Woodham v. Baldock, 38, 169. 
 WoodhuU V. Whittle, 241. 
 Woodley v. Abby, 501. 
 Woodman v. Bodfish, 461. 
 Woodrow V- Davis, 181, 337. 
 Woodruff V. Bowles, 210. 
 Woodruff V. Ritter, 329. 
 Woodson V. Pool, 284, 321. 
 Woodville v. Reed, 233. 
 Woodward v. Brooks, 510. 
 Woodward v. Gates, 156, 165, 509. 
 Woodward v. Marshall, 354 392, 
 
 420. 
 Woodward v. Solomon, 466. 
 Woodward v. Wyman, 228, 471. 
 Woodworth v, Hodgson, 112. 
 Woodworth v. Paige, 481, 562. 
 Woodworth v. Sweet, 248, 263, 318, 
 
 320. 
 Woodworth v. Woodworth, 120, 569. 
 Wooley V. Edson, 179, 464. 
 Wooley V. Frey, 43. 
 Woolridge v. Gage, 107, 505. 
 
XCVlll 
 
 TABLE OF CASES OITED. 
 
 [refbrbnces are to pages.] 
 
 Woolsey v. XJrner, 438. 
 WoUaston v. Tribe, 309. 
 Woonsocket Rubber Co. v. Fally, 
 
 184. 
 Woosterz'. Stanfield, 353, 370, 371, 
 
 383, 415. 419- 
 Wooten V. Clarke, 122, 229, 475, 539- 
 Wooten V. Osborn, 298. 
 Wordall v. Smith, 91, 145. 
 Work V. Ellis, 369, 419, 596. 
 Worland v. Kimberlin, 189, 198. 
 Worman v. Kramer, 146, 178. 
 Worman v. Wolfersberger, 187. 
 Worrall v. Jacob, 317. 
 W. O. Tyler Paper Co. v. Orcutt- 
 
 Killick Lithographing Co., 39. 
 Worseley v. DeMattos, 25, 38, 80, 
 
 84, 91, 208, 239. 
 Worth V. Northam, 461. 
 Worth V. York, 242, 254, 525. 
 Worthington v. Bullitt, 230, 293, 
 
 296, 298, 299, 304, 305, 607. 
 Worthington v. Shipley, 281, 285, 
 
 292, 302. 
 Worthy v. Brady, 20. 
 Worthy j;. Caddell, 218, 279. 
 Wortman v. Price, 263. 
 Wright V. Brandis, 211, 502. 
 Wright V. Campbell, 292, 536, 546. 
 Wright V. Casteel, 172. 
 Wright V. Cornelius, 580. 
 Wright V. Crockett, 465, 477. 
 Wright V. Douglass, 253. 
 Wright V. Grover, 143, 151, 590. 
 Wright V. Hancock, 44, 47, 53, 600, 
 
 606. 
 Wright V. Henderson, 327. 
 Wright V. Howell, 476. 
 Wright V. I/ce, 360. 
 Wright V. Linn, 387, 573, 576, 583. 
 Wright V. McCormick, 145, 149. 
 Wright V. Petrie, 251, 269, 527, 528, 
 
 534- 
 Wright V. Stannard, 45, 218, 304, 
 
 321. 
 Wright V. Wheeler, 553. 
 Wright V. Wright, 448, 450. 
 Wrightman v. Hart, 56. 
 
 Wurtz V. Hart, 395. 
 Wyatt V. Stewart, 120. 
 Wykoff V. Carr, 574. 
 Wyles V. Beales, 438. 
 Wylie V. Basil, 318. 
 Wyman v. Brown, 448. 
 Wyman v. Fox, 481, 530. 
 Wyman v. Richardson, 474. 
 Wyman v. Wilmarth, 196. 
 Wynkoop v. Shardlow, 374. 
 Wynne v. Cornelison, 558. 
 Wynne v. Gildewell, 25, 401, 403, 
 
 580. 
 Yale V. Bond, 55, 115. 
 Yancy v. Cotheran, 560. 
 Yardley v. Arnold, 519, 586. 
 Yardley v. Raub, 324. 
 Yates V. Joyce, 524. 
 Yates V. Lyon, 364. 
 Yates V. Olmstead, 134. 
 Ybarra v. Lozenzana, 446. 
 Yeend v. Weeks. 54, 59. 
 Yocum V. BuUit, 524. 
 Yoder v. Standiford, 33, 37, 42, 45, 
 
 49. 50, 59. 272, 274, 275,277, 562, 
 
 607. 
 York V. Merritt, 446. 
 York County Bank v. Carter, 190, 
 
 199, 216, 574. 
 Youmans v. Boomhower, 611. 
 Young V. Booe, 22, 406, 408, 417. 
 Young V. Carter, 315. 
 Young V. Clapp, 185, 196, 200, 201. 
 Young !/. Dumas, 189, 198, 203, 226. 
 Young V. Frier, 530. 
 Young V. Gillespie, 355, 564. 
 Young V. Heermans, 222, 501, 505. 
 Young V. Lathrop, 495. 
 Young V. McClure, 141, 144. 
 Young V. Pate, 181, 337, 487, 568. 
 Young V. Stallings, 58, 187, 199, 203, 
 
 204, 226. 
 Young V. White, 296, 300, 302. 
 Younge v. Wilson, 240. 
 Zabriskie v. Smith, 353. 
 Zell Guano Co. v. Heatherly, 564. 
 Zerbe v. Miller, 208, 241, 478, 573, 
 
 577, 586. 
 
TABLE OF OASES OITBD. xcix 
 
 [references are to PA.GES.] 
 
 Zimmer v. Miller, 21, 49. Zipcey v. Thompson, 510. 
 
 Zimmerman v. Lamb, 464, 581. Zug v. Laughlin, 515, 
 
 Zimmerman v. Schoenfeldt, 448. Zuver v. Clark, 462, 468. 
 
FRAUDULENT CONVEYANCES. 
 
 CHAPTER I. 
 
 HISTORY OP THE LAW OF FRAUDULENT 
 
 CONVEYANCES. 
 
 § 1. Origin of Commerce.— In the earliest stages of society 
 propertj'^ lias 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 deem it a 
 present, and there is no expectation of any return. There 
 are neither loans nor debts, and commerce is unknown. 
 Even after property has acquired a value, there is at first 
 no commerce. A rude people make no executory 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 convey- 
 ances are exceedingly ceremonious Custom requires the 
 presence of numerous witnesses, prescribes the use of a 
 certain form of words, and demands the performance of 
 certain symbolical acts. No part of this ceremony can be 
 omitted, not an act, not a gesture, not a syllable, for if there 
 is a single omission the conveyance is void. The early 
 Roman law presents an apt illustration of the customs of 
 primitive times. Under that law it was necessary that 
 the parties, a libripens and five witnesss should be present 
 at every transfer of property.^ The Ubripens attended 
 with the scales to weigh the uncoined copper which con- 
 stituted 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, 
 
 1 Maine's Ancient Law, 198. 
 
2 HISTORY OF THE LAW OF FRAUDULENT CONVEYANCES. 
 
 with certain formalities, by the vendor to the vendee, 
 in the presence of the witnesses, the Ubripens 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 Roman law, was called a nexum, 
 and the parties were said to be nexi} From this descrip- 
 tion of the ceremony it is manifest that the earliest use of 
 the nexum was to give proper publicity to the alienation 
 of property. It is also manifest that at that time . trade 
 was confined to barter merely. Contracts and commerce 
 were unknown. 
 
 § 3. Transition from 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 as far as 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 nexum was used to denote 
 the delivery of the property and the obligation of the 
 vendee 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 
 payment was made, and thus executory contracts arose.^ 
 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, 
 mancipium, or mancipatio, was introduced to designate the 
 delivery of property. This illustration is drawn from the 
 
 iMaine's Ancient Law, 309. zjiaine's Ancient Law, 310. 
 
HISTORY OF THE LAW OF FRAUDULENT CONVEYANCES. 3 
 
 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. 
 
 §3. 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 suflScient. There must be some temptation or impunity 
 before frauds will be committed. If the laws are severe 
 and rigorous, there will be no frauds: if the laws are lax, 
 there will be a temptation,, and trickery and dishonesty 
 will arise. In primitive times the laws were exceedingly 
 harsh. If the debt was not paid, the creditor had the 
 right to reduce his debtor to slavery. Such was the 
 ancient law in Grreece, Italy, Asia^ and Grermany.^ The 
 custom was, in fact, so universal that it may be regarded , 
 as a part of the jus gentium barhararum. 
 
 §4. Roman Law. — The Roman 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 prsetor 
 and demand the possession, which would then be awarded 
 tohim, and the debtor would thus passinto his power. If the 
 debtor refused to part with his liberty voluntarily, the 
 creditor could pursue another course. He first summoned 
 his debtor before the prsetor, and had the justice of his claim 
 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 or not. If the 
 debt was not paid within that time, the creditor, after its 
 
 1 Grote's Hist of Greece, vol.3, 2 Hallam's Hist, of Middle Ages, 
 
 PB. 95, no, 159. vol. I, pp. 196, 317; Hume's Hist, of 
 
 Eng., vol. I, p. 176. 
 
4 HISTORY OF THE LAW OF FRAUDULENT CONVEYANCES. 
 
 expiration, arrested the debtor and carried Mm before tlie 
 prsBtor; 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 sixty days, and during this 
 period he was brought into the oomitium 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 foreign slavery beyond the Tiber. 
 If, however, there were several creditors, they might, if 
 they wished, actually cat his body into pieces, and no 
 creditor incurred any penalty by taking more or less than 
 in proportion to his debt.^ 
 
 §5. 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 dis- 
 use. It was inconsistent with the duties of military service 
 to which 6very man was bound under the feudal system.^ 
 Imprisonment for debt, however, took the place which had 
 formerly been filled by the power to enslave. This was 
 unknown at the common law, except in cases of trespass 
 with force.* It was first given by statute against 
 bailiflfs,^ and was subsequently extended by other acts.^ 
 Although this power was not as rigorous as the Roman 
 law, yet it was always severe, and even harsh.^ 
 
 §6. Effect of Rigorous Laws.— The effect of these rigor- 
 ous provisions may be readily traced. The law of fraudu- 
 
 lA. Gellius, XX, i, §§ 45 ei seq.; 4i Reeves' Hist, by Fin. 511; 2 ib. 
 
 Gibbon's Hist, of Rome, vol. 4, p. 71; 2 Bell Com. 538; 2 Kent Com. 
 
 372; Niebulir's His. of Rome, vol. 398; Herbert's Case, 3 Co. 11; 3 Black. 
 
 2, p. 599 ; Arnold's His. of Rome, Com. 281. 
 P- 52' Bi Reeves' Hist, by Fin. 511. 
 
 SHallam's Hist, of Middle Ages, 62 Reeves' Hist, by Fin. 71; 2 
 
 vol. I, pp. 196, 317; Hume's Hist, of Kent Com. 398. 
 Eng., vol. I, p. 176. 72 May's Const. Hist. 268; i Ben- 
 
 32 Bell Com. 538. ton's Thirty Years in Sen. 291. 
 
HISTORY OF THE LAW OF FRAUDULENT CONVEYANCES. 5 
 
 ent conveyances is not to be found in the Twelve Tables. 
 It liad its origin in a later age, when the right of the 
 creditor to enslave his debtor had been abrogated. The 
 cases upon the subject in England prior to the commence- 
 ment of the present century are comparatively few. On 
 the other hand, the great 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 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. 
 
 §7. Roman Law of Fraudulent Conveyances. — The Roman 
 law on this subject embodies the leading principles which 
 govern the English and American courts in adjudicating 
 this class of cases.^ 
 
 §8. Derivation of the Anglican Law. — Anglican constitu- 
 tional^ and criminal law^ is derived from the Anglo-Saxons, 
 but Anglican civil law is founded upon the Roman law. * 
 By this it must not be understood that Anglican civil law 
 is merely a servile copy or imitation of the Roman law, 
 but that it has borrowed the principles of the latter by the 
 nobler process of assimilation and incorporation. 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 exi- 
 gencies of commerce, and, if every memorial of the present 
 
 ISee Dig. Lib. 42, tit. 9, sec. 1-7- ^1 Reeves' Hist, by Fin. 24, note 
 
 8-9-11. C; 39, note C. 
 
 SStubbs' Select Charters, Part i. *i Reeves' Hist. Introduction by- 
 
 Pin. 
 
6 HISTORY OF THE LAW OF FRAUDULENT CONVEYANCES. 
 
 law were blotted out, it would spring up again in nearly its 
 present shape, 
 
 §9. Common Law.— The cases that were decided prior to 
 the adoption of any statute upon this subject are few and 
 meagre ; but nevertheless they are sufficient to show that 
 the law of fraudulent conveyances is a part of the common 
 law. A fraudulent conveyance was void as against credi- 
 tors, and the property might be taken on execution.^ 
 Whether a gift was fraudulent was deemed a question of 
 fact.^ After the death of the debtor, the fraudulent 
 grantee could be held as executor de son tort^ or relief 
 might be had in equity.* These principles are sufficient 
 to show that the foundation of the existing law upon the 
 subject had already been laid. 
 
 §10. 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 title could be placed in another, and the profits only, 
 which were not liable to execution at law, could be reserved 
 to the debtor.^ The first statute upon the subject in its 
 recitals sets forth the evil devices of the times in full.' It 
 declares as a fact and a matter of notoriety that debtors 
 gave their tenements and chattels to their friends by col- 
 lusion, 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 compelled 
 to take a small part of their debts and release the balance.^ 
 The next statute^ upon this subject recites the same practice 
 of a conveyance to the use of a debtor and a withdrawal 
 
 Us. fol. loi, pi. 72 ; Rol. Abr. 813 h. IV, 4 pi. 9 ; Rol. Abr. 
 
 Covin. 549 ; Brooke Abr. 139, Collu- Covin. 549. 
 sion, pi. 9 ; Fitz. Abr. Execution, 4i6 Edw. IV. 9. 
 
 i°8. 52 Reeves' Hist, by Fin. 183, 457. 
 
 213 H. IV, 4 pi. 9. 650 E. Ill, R. 6. 
 
 72 R. II. c. 3, 
 
HISTORY OP THE LAW OF FRAUDULENT CONVBYANOES. 7 
 
 to a privileged place where he could not be served with 
 process, and provides a means of obtaining a judgment 
 after a proclamation once a week for five successive weeks 
 at the gate of the privileged place, and thus reaching the 
 property of the debtor, whether held in trust or not. The 
 third statute in the order of events sets forth the same 
 practice of a fraudulent gift and a 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 chat- 
 tels made to the use of the grantor.^ 
 
 § 11. Importance of the Statutes. — These statutes and 
 their recitals are important, for they show the form assumed 
 by fraud in those early times, and throw light 
 upon some of the expressions used by the courts in later 
 times. If there had never been a fraudulent conveyance 
 to the use of a debtor, the doctrine of secret trusts would 
 never have arisen. It is to conveyances of this class that 
 Coke refers when he says: "Every gift made upon a trust 
 is out of this proviso, for that which is, betwixt the donor 
 and donee, called a trust, per nomen speciosum, is, in truth, 
 as to all the creditors, a fraud, for they are thereby defeated 
 and defrauded of their true and due debts."^ It has been 
 said that the act of 50 Edw. Ill, c. 6, is not declaratory of 
 the common law, upon the ground that if the same prin- 
 ciples had prevailed at the common law, the statute was in 
 vain, and would never have been made.^ This doctrine 
 would not be accepted now, though it must be admitted 
 that this multiplication of statutes raises grave doubts as 
 to the vigor and force of the principles acknowledged 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 
 
 •I3 H. yn c. 4. Finlason sug- sxwyne's Case,3Co.8o;Moore,638. 
 gests that this is merely a declara- 3 Lyte v. Perry, Dyer, 49 C. 
 tory act. 3 Reeves' Hist, by Fin. 143. 
 
8 HISTORY OF THE LAW OF FRAUDULENT CONVEYANCES. 
 
 been no grievous evils to redress, and legislative interfer- 
 ence 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 en- 
 forcing it. 
 
 § 12. Merely Declaratory.— The statute of 13 Bliz. c. 5^ is 
 the last in the series, and is the foundation of all 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, 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 development of the Anglican law presents an 
 analogy to the Roman law. Roman law was founded upon 
 an edict of the prsetor ; Anglican law is founded upon a 
 legislative enactment. This statute, however, is merely 
 declaratory of the common law.^ By this expression the 
 courts probably do not mean to say more than that the 
 statute is founded in common reason, and common reason 
 has justly been held to be common law.'' As far as the 
 actual practice is concerned, it probably would be more 
 
 1 Made perpetual by 29 Eliz. c. 5. are in this state part of the unwrit- 
 
 s Co. Litt. 76, a. 290 c; Twyne's ten law." 
 
 Case, 3 Co. 80; Moore 638; Hamilton "Where statute, liberally inter- 
 
 V. Russell, I Cranch, 309 ; Peck ». preted, fails , a remedy still exists 
 
 Land, 2 Geo. i ; Clements v. Moore, by the common law." Bigelow on 
 
 6 Wall. 299; Hudnal v. Wilder, 4 Fraud, vol II, 27. 
 
 McCord 294; I McCord 227. In See Butler v. Moore, 73 Me. 154, 
 
 Gardner v. Cole, 21 la. 205-210, Richards v. Atty. Gen., 12 CI. and 
 
 Justice Dillon said: "The statutes of F. 44. This statute is in force in 
 
 13 Elizabeth— and 27 Elizabeth— Australia, New Zealand, and Upper 
 
 have never been legislatively re-en- Canada. May on Fr. Con. (Eng.), 
 
 acted in this state. But antedating, 3. It is in force in the District of 
 
 as these statutes do, the settlement Columbia, the only amendment 
 
 of the country, and being mainly, if being the act of Feb. 24, 1893, by 
 
 not -wholly, declaratory of the com- which the law of assignments for 
 
 mon law, which set a face of flint the benefit of creditors is altered, 
 
 against fraud in every shape, they Kansas City Packing Co. v. Hoover, 
 
 constitute the basis of American 1 D. C. App. 268-272, 21 Wash, 
 
 jurisprudence on these subjects, and Law Rep. 710. 
 
 327 H. VIII, fol. 10. 
 
HISTORY OF THE LAW OF FRAUDULENT CONVEYANCES. & 
 
 strictly accurate to say that the principles of the common 
 law, as now understood, are so strong against fraud in 
 every shape that they will attain every end proposed by 
 the statute.^ 
 
 § 13. Common Law Still in Force.— This doctrine is of 
 practical importance, for unless there is a conflict between 
 the provisions of a statute and those of the common law 
 relating to the same subject-matter, or an evident intent of 
 the legislature to repeal the common law, the latter is con- 
 sidered to 'be still in force. Consequently, as the act is 
 merely declaratory, resort may always be had to the prin- 
 ciples of the common law whenever the statute fails to 
 reach a case of fraud.^ The act itself is not affected by 
 this doctrine,^ and will in general be received as a true 
 declaration of what the law was,* but 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 supple- 
 ments the statute, to the end that justice may be done and 
 every species of fraud suppressed. 
 
 § 14. Liberal Construction. — The statute is established for 
 the suppression of fraud, the advancement of justice, and 
 the promotion of the public good. Consequently, it should 
 be liberally and beneficially construed to suppress the 
 fraud, abridge the mischief, and enlarge the remedy.^ It 
 
 iCadogan v. Kennett, 2 Cowp. 5 Twyne's Case, 3 Co. 80 ; Moore, 
 
 432; Ex parte Mayor, 34 L. J. Bkcy. 638 ; Gooch's Case, 5 Co. 60 ; Cado- 
 
 25. gan V. Kennett, 2 ' Cowp. 432 ; 
 
 SRlackman v. W h e a t o u, 13 McCuUoch v. Hutchinson, 7 Watts, 
 
 Minn. 299 ; Fox v. Hills, i Conn. 434, 32 Am. Dec. 776. 
 
 295; State ». Fife, 2 Bailey,. 337; Statutes against fraud are to be 
 
 Lillard v. M'Gee, 4 Bibb, 165; liberally and beneficially expound- 
 
 Westmoreland v. Powell, 59 Geo. ed. i Black. Com. 88. But if a 
 
 256. penalty is provided, they should be 
 
 SDavis V. Turner, 4 Gratt, 422. construed strictly. State v. Chap- 
 
 *Clark V. Douglass, 62 Penn. 408. man, 33 Kans. 134, 5 Pac. 768 ; Cum- 
 
10 WHAT CONSTITUTES A FRAUDULENT CONVEYANCE. 
 
 must not, however, be so strained as to make it receive an 
 interpretation which it was not intended to bear. Such a 
 construction, moreover, is not to be made in support of 
 creditors as will make third persons sufferers when they 
 act in good faith.' These principles are adopted in all the 
 cases, and run through every branch of the law of fraudu- 
 lent 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 progressive civilization. 
 
 CHAPTER II. 
 
 WHAT CONSTITUTES A FRAUDULENT 
 
 CONVEYANCE. 
 
 § 15. Owner's Absolute Dominion over his Property. — Every 
 
 one has the absolute dominion over his own property, and 
 
 by virtue of that dominion, when he is under no obliga- 
 
 ming V. Fryer, Dudley (Ga.) 182. Durousseau p. U. S., 6 Cr. 307 ; 
 If one section, however, is reme- Riggs v. Palmer, 115 N. Y., 506. 5 
 dial, and another is penal, the reme- L. R. A. 340, note, 26 N. Y. St. Rep. 
 •dial clause may be construed liber- 198, 22 N. E. 188. 
 ally, while a strict interpretation is The courts are bound by the in- 
 placed upon the penal clause. Short tent of the legislature. Snyder v. 
 V. Hubbard, 2 Bing. 349, 9 E. C. L. Compton, 87 Tex. 374, 28 S. W. 1061.. 
 474. But where the general intent See State «. Haworth, 23 N. E. 
 of the statute is remedial, although 946, 122 Ind. 462; Byrnes v. Volz, 
 it may contain penal provisions, yet 53 Minn, no, 54 Is . W. 942; State 
 it should be liberally construed, in ». Small, 29 Minn. 216, 12 N. W. 
 order that the intent of the law may 703 ; People v. Lacombe, 99 N. Y. 
 be fulfilled. Reed v. Northfield, 43, i. N. E. 599 ; Henry <o. Trustees 
 13 Pick. 94, 23 Am. Dec. 662 ; Stan- of Perry Towp., 48 Oh. St. 671; 30 N. 
 ley «. Wharton, 9 Price 301; People E. 1122; Territory v. Clark Okl., 
 
 Tj. Utica Ins. Co., 15 Johns 358, 380, 35 Pac. 882 ; Palms v. Shawano 
 
 381, 382, 8 Am. Dec. 243 ; and where Co., 61 Wis. 211, 21 N. W. 77. 
 implication is necessary in order to 1 Cadogan v. Kennett, 2 Cowp. 
 
 enforce the manifest intent of the 432. And see post. Chap. VIII , 
 
 statute.implication may be followed. Chap. XVII. 
 
WHAT CONSTITUTES A FRAUDULENT CONVEYANCE. 11 
 
 tion 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.^ 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 mannfer of disposing 
 of it, and investing the proceeds. He may contract debts 
 to be satisfied out of it, confess judgments and crealie liens 
 npon it.^ 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 diet ates of 
 his pleasure, interest or even caprice.^ 
 
 He is not deprived of his power and dominion over his 
 property by indebtedness or even insolvency, for his^ obli- 
 gation is purely personal, and does not affect his property'' 
 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 pro- 
 ceeds, in his discretion, to his debts, his purchases, or his 
 maintenance. He has the right to manage, 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 pre- 
 servation and increase.^ He may enter into a partnership, 
 transferring a part or even the whole of his property to the 
 firm.^ If he is prosecuting an action of ejectment, he 
 may compromise with his adversary in any manner he 
 thinks proper.'' Simple ins61vency does not work a dissolu- 
 
 iSexton V. Wheaton, 8 Wheat, 5 Davis v. Turner, 4 Gratt. 422 ; 
 
 229 ; Thomson «. Dougherty, 12 S. Paper Works v. Willet, i Robt. 
 
 & R. 448. 131 ; Stanley v. Robbins, 36 Vt. 
 
 ^Candee 41. Lord, 2 N. Y. 269, 51 422 ; Frank v. Levie, 5 Robt. 599 ; 
 
 Am. Dec. 294. Carter v. Neal, 24 Geo. 346, 71 Am. 
 
 .3Pope V. Wilson. 7 Ala. 690. See Dec. 136. 
 
 post, sections 165, 167, 168. 6 Browne v. Ripka, 12 Pitts. L. 
 
 ^Frank v. Peters, 9 Ind. 344 ; J. 170. 
 
 Waddams v. Humphreys, 22 111. 7 Richardson «. Stewart, 2 S. & 
 
 65i ; Barrow v. Bailey, 5 Fla. 9. R. §4. 
 See/oj<, section 179. 
 
12 WHAT CONSTITUTES A FRAUDULENT CONVEYANCE. 
 
 tion of a partnership, or divest tlie partners of their domin- 
 ion over the partnership property.^ 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.^ 
 
 § 16. Debtor Held to the Exercise of Good Faith.— A deb- 
 tor, however, is not merely the owner. He sustains two 
 distinct relations to his property, that of owner and quasi 
 trustee for his creditors.^ 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 it to 
 their prejudice. They, therefore, have an equitable claim 
 upon and interest in it.* The law lays upon him an obli- 
 gatiop. 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 
 payment. 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 authority 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 manner as to compel 
 him to do justice to his creditors. Such an unconscientious 
 exercise of power by a debtor is considered a fraud upon 
 his creditors.^ He can, therefore, neither create a debt, nor 
 do any of the things hereinbefore mentioned mala fide to 
 their prejudice, and if he does, the act is liable to be im- 
 peached. 
 
 1 Siegel V. Chidsey, 28 Penn. i Eppes v. Randolph, 2 Call. 103; 
 279 ; 70 Am. Dec. 124. Seymour v. Wilson, 19 N. Y. 417. 
 
 2 Davis z/. Turner, 4 Gratt. 422. B Weed v. Pierce, 9 Cow. 722; 
 
 3 Candee v. Lord, 2 N. Y. 269, 51 Pope v. Wilson, 7 Ala. 690. 
 Am. Dec. 294. 
 
WHAT COSrSTITUTES A FRAUDULENT CONVEYANCE. 13 
 
 § 17. Owner's Absolute Dominion Involves the Right of 
 Another to Purchase. ^His right to sell, or otherwise dis- 
 pose of his property, involves the corresponding right of 
 another to purchase it.^ The only limitation upon the ex- 
 ercise of these rights is that the transfer shall be in good 
 faith. The right of creditors to impeach an act of the debt- 
 or 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 upon their rights. If an- 
 other receives the property with notice of the fraud, he is 
 aiding the debtor to cheat his creditors, and this the law 
 never tolerates.^ A person desiring to purchase, however, 
 has a right to trust to the debtor's dominion over his prop- 
 erty, and if he purchases in good faith for a valuable con- 
 sideration 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.^ 
 
 § 18. 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 
 
 IBarrow v. Bailey, 5 Fla. 9; see intending to defraud, and a convey- 
 
 post, sections 167, 168, 170, r79, et ance of property which is appropri- 
 
 seq. able by law to the payment of the 
 
 an V. Kennett, 2 Cowp. debt due." O'Conner «. Ward, 60 
 
 432; s^epost, sections 183, 184, 185, Miss. 1036. 
 
 et seq. "Any instrument is fraudulent 
 
 SEppes V. Randolph, 2 Call. 103; which is a mere trick or sham con- 
 Seymour V. Wilson, 19 N. Y. 417. trivance, or which originates in bad 
 
 ^Definitions. "A fraudulent motives or intentions, that is made 
 
 conveyance may be defined to be a and received for the purpose of 
 
 conveyance, the object, tendency, warding off other creditors." 
 
 or effect of which is to defraud Hughes v. Cory, 20 la. 399-405. 
 
 another, or the intent of which is The following definition of a 
 
 to avoid some duty or debt due by fraudulent conveyance is believed 
 
 or incumbent upon the party mak- to be warranted by the authorities: 
 
 ing it." Wait on Fraudulent Con- A fraudulent conveyance under the 
 
 veyances, 2nd Ed. sec. 15. statute of 13 Elizabeth, c. 5, is a 
 
 To constitute a fraudulent con- transfer of legal or eqviitable assets, 
 
 veyance "there must be a from a person in whose hands they 
 
 creditor to be defrauded, a debtor might have been made subject to 
 
14 FRAUDULENT INTENT. 
 
 delay, hinder, or defraud creditors," but protects all 
 "estates or interests which are conveyed on good con- 
 sideration and bona fide" -A-n 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. 
 
 CHAPTER III. 
 
 FEAUDULBNT INTENT. 
 
 § 19. 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 creditors and others of their just and lawful 
 actions, suits, debts, accounts, damages, penalties, forfeit- 
 ures, heriots, mortuaries and reliefs. It will be observed 
 that there is no other description of the intent in the 
 enacting clause except by reference to the preamble " the 
 intent before declared and expressed."^ This reference, 
 however, makes the intent essential to invalidate the trans- 
 action, 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.^ 
 
 the claims of his creditors, and See also McDowell v. Steele, 8/ 
 
 who makes the transfer with the in- Ala. 493, 6 So. 288; Stephens v. 
 
 tention of delaying or defrauding his Reginstein, 89 Ala. 561; 8 So. 68; 
 
 creditors, to a person who either has 18 Am. St. Rep. 156; Means v. 
 
 notice of that intention or who does Dowd, 128 U. S. 273-281; gS. Ct. 793; 
 
 not give a valuable consideration Graves v. Blondell, 70 Me. 190-194. 
 
 tor the property so transferred. iWalker v. Burrows, i Atk. 93. 
 
 ^Anderson v. Hooks, 9 Ala. 704. 
 
FRAUDULENT INTENT. 15 
 
 §20. What Kind of Fraud is Within the Statute.— No 
 
 fraud is withiii the statute unless it is directed against 
 those who have just and lawful actions, suits, debts, 
 accounts, damages, penalties, forfeitures, heriots, mortu- 
 aries, 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.^ 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 creditors must be content to abide by the 
 legal rights remaining in him. There is a manifest 
 distinction between a fraud upon the debtor and a fraud 
 upon creditors. In the one case the debtor is the victim 
 and guilty of no wrong, while in the other he is himself 
 either in fact or in law the perpetrator of the fraud. 
 In the latter case the creditors who seek to avoid a sale or 
 transfer "do not represent the debtor, but exercise rights 
 paramount to his. In the former case the remedy belongs 
 to the debtor alone, and they can not interfere when they 
 are not in contemplation of the author of the wrong, and 
 are only affected consequentially.^ The fraud, moreover, 
 must be a fraud against general creditors, and not a mere 
 intent to defeat a prior unrecorded deed.^ It may also 
 lie in the transfer, and not in the creation of the debt of 
 
 lGrif6n v. Stoddard, 12 Ala. 783. But in the case of Sweet v. Con- 
 
 SPettus V. Smith, 4 Rich. Eq. verse, 88 Mich, i, 49 N. W. 899; 
 
 197; Garretson v. Kane, 27 N. J. creditors were relieved against a 
 
 208; Eaton V. Perry, 29 Mo. 9.6; fraud perpetrated on their debtor. 
 
 Hovey v. Holcomb, 11 111. 660; The debtor in that case, however, 
 
 Prosser v. Edmpnds, i Y. & C 481; was a corporation, and its own oflS- 
 
 Graham v. Railroad Co., 102 U. S. cers were the perpetrators of the 
 
 148; McAlpine !». Sweetzer, 76 Ind. fraud. And see Van Deusen w. 
 
 78; Parker v. Roberts, 116 Mo. 657, Frink, 36 Mass. 449, 
 
 22 S. W. 914, citing this" section. SBurgin v. Burgin, 1 Ired. 453. 
 
16 
 
 FRAUDULENT INTENT. 
 
 the creditor who impeaches it.^ The fraudulent intent 
 must also be an intent to commit a fraud on creditors by 
 making the transfer, and not by some entirely independent 
 act which might and probably would have been done had 
 no transfer been made.^ 
 
 § 31. What Constitutes Fraud.^ — Fraud consists of 
 unlawful conduct that operates prejudicially upon the 
 rights of others.^ To defraud is to withhold from another 
 that which is justly due to him, or to deprive of him of a 
 right by deception or artifice.' A fraud upon creditors 
 consists in the intention to prevent them from recovering 
 their just debts, by an act which withdraws the property of 
 the debtor from their reach.^ There can be no fraud with- 
 out a dishonest intent; but fraud does not consist in mere 
 intention, but 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 car- 
 ried out, can not work injury to the rights of others.^ 
 
 iHorwitz V. EUinger, 31 Md. 492; 
 Mattison v. Demarest, 4 Robt, l6i. 
 
 ^Wilson V. Forsyth, 24 Barb, 
 105. 
 
 3DEFINITI0NS. "Fraud is the 
 unlawful appropriation of another's 
 property with knowledge, by design 
 and without criminal intent." 
 Bacon's Abr., followed in Bouv. 
 Law Diet. 
 
 "Fraud consists in endeavor to 
 alter rights by deception, touching 
 motives, or circumvention, not 
 touching motives." Bigelow on 
 Fraud, Vol. i, 5. 
 
 "The term is one that admits of 
 no positive definition, and cannot 
 be controlled in its application by 
 fixed and rigid rules." Wait on 
 Fraudulent Conveyances, 2nd. Ed., 
 section 13. See Vaughn v. Rich- 
 ardson, 21 Can. S. C. R. 359; Mc- 
 
 Laughlin V. Nat. Mut. Bond and 
 In. Co., 64 Fed. 908; Harrison v. 
 Snair, 76 la. 558; 41 N. W. 315; Wil- 
 liams V. Washington, 40 S. C. 457, 
 19 S. E. i; Jones Lumber Co. v. 
 Villegas, Tex., 28 S. W. 558. 
 
 4Bunn V. Ahl, 29 Penn. 387. 
 
 SBurdick v. Post, 12 Barb. 168; 
 S. C. 6 N. Y. 522. 
 
 6McKibbin v. Martin, 64 Penn. 
 352; 3 Am. Rep. 588; Ala. Ins. Co. 
 V. Pettway, 24 Ala. 544. 
 
 ^Columbia Electric Co. v. Dixon, 
 46 Minn. 463, 49 N. W. 244; Whea- 
 don V. Huntingdon, 83 Hun. 371; 
 31 N. Y. Supp. 912; 64 N. Y. St. 
 Rep. 648; Lake v. Tyree, 90 Va. 719; 
 19 S. E. 787; Pasley v. Freeman, 3 
 T. R. 51. 
 
 SBunn V. Ahl, 29 Penn. 387; 
 Williams v. Davis, 69 Penn. 21; 
 Rice V. Perry, 61 Me. 145. 
 
FRAUDULENT INTENT. 17 
 
 § 22. Delay and Hindrance. — It is not necessary, how- 
 ever, that there should be an intent to defraud in order to 
 render a transfer void. The statute makes void all con- 
 veyances 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.^ 
 The term fraud imports something of a more vicious char- 
 acter than the mere production of a delay of satisfaction. 
 T]nere 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 snch pleonasms are to be found in the 
 old English statutes, where they were introduced for cau- 
 tion's sake more than with any precise idea as to what 
 they were intended to effect.^ 
 
 § 23. What Constitutes a Hindrance or Delay .^ — The 
 
 term delay refers not only to time, but to the interposition 
 
 iPilling V. Otis, 13 Wis. 495; SHinder, delay and defraud are 
 
 Planck V. Schermerliorn, 3 Barb. practical equivalents in the civil 
 
 Cli. 644 ; Sutton v. Hanford, 11 administration of the statute. Bige- 
 
 Mich. 513; Davenport «. Cummings, low on Fraud, ist. Ed., Vol. II, 293. 
 
 15 Iowa, 219 ; Burt v. McKinstry, See Norwegian Plow Co. 0. Han- 
 
 4 Minn. 204 ; 77 Am. Dec. 507 ; Bur- thorn, 71 Wis. 529, 37 N. W. 825. 
 
 gert V Borchert, 59 Mo. 80 ; Crow In Thompson v. Huron Lumber 
 
 V. Beardsley, 68 Mo. 435 ; Planters' Co., 4 Wash. St. 600, 30 Pac. 741, a < 
 
 Bank v. Willeo Mills, 60 Geo. 168 ; mortgage of property by an insolv- 
 
 Dunaway v. Robertson, 95 111. 419; ent corporation was held to be a 
 
 Cordes «. StaSzer, 8 Mo. Ap. 61 ; contrivance to hinder and delay 
 
 McCreary v. Skinner, 75 la. 411 ; creditors by continuing the cor- 
 
 39 N. W. 674 ; Cutcheon v. Bucha- porate life after insolvency, 
 
 nan, 88 Mich. 594 ; 50 N. W. 756 ; But see Vincent «. Snoqualmie 
 
 Peeler v. Peeler, 109 N. C. 628 ; Mill Co., 7 Wash. 566, 35 Pac. 396; 
 
 14 S. E. 59 ; Heath ». Page, 63 Pa. Parke & Lacy Machinery Co. v. 
 
 St. 108 ; 3 Am. Rep. 533 ; Gregg ®. same, id. 
 
 Cleveland, 82 Tex. 187; 17 S. W. 777; A deed of trust authorizing trus- 
 
 Thompson v. Huron Lumber Co., tee to sell at retail for the benefit of- 
 
 4 Wash. St. 600, 30 Pac. 741. a certain creditor and return surplus 
 
 2Read V. Worthington, 9 Bosw. to grantor is void as tending to 
 
 617 ; Burdick ». Post, 12 Barb. 168 ; hinder and delay creditors because 
 
 S. c. 5 N. Y. 522. it puts the surplus out of their reach 
 
 for an indefinite time. Gregg v. 
 
18 
 
 FRATTDtTLENT INTENT. 
 
 of obstacles in the way of creditors, with the fraudulent 
 intent to hinder and delay.^ The statute is to be construed 
 according to its reasonable intent and object, and by a 
 reasonable construction only such hindrance and delay as 
 will operate as a fraud come within its operation.^ A delay 
 for all time renders a transfer void, and the principle is the 
 same when it is sought for a limited time. The difference 
 is in degree only. The hindrance or delay of creditors is 
 reprobated by the statute without regard to the duration 
 of the hindrance or delay .^ The time for the performance 
 of a contract is both in morals and in law an essential part 
 of the contract itself, and a debtor who attempts to post- 
 pone the time of payment, endeavors to deprive his creditors 
 of a valuable right, and thus it may justly be said that a 
 
 Cleveland, 82 Tex. 187, 17 S. W. 
 777; Puckett ®. Richardson Drug 
 Co., I Tex. Civ. App. 624, 20 S. \V. 
 1 127. But see Reynolds v. John- 
 son, 54 Ark. 449, 16 S. W. 124; Willis 
 V. Satterfield, 85 Tex. 301, 20 S. W. 
 155- 
 
 A transfer of choses in action as 
 collateral is not a fraudulent as- 
 signment in delay of unsecured 
 creditors. Goodbar v. l/ocke, 56 
 Ark. 314, 19 S. W. 924; Appeal of 
 Q. P. Ahl, 25 W. N. C. 119, 18 Atl. 
 475- 
 
 In the following cases transfers 
 attacked on the ground of delaying 
 creditors have been upheld. 
 
 Davis ». Howard, 73 Hun. 347, 
 26 N. Y. Supp 194; 
 
 Rider v. Hunt, 5 Tex. Civ. App. 
 238, 25 S. W. 314; 
 
 Samuel ». Kittinger, 6 Wash. 261, 
 33 Pac. 509; 
 
 Perkins ®. Hutchinson, 17 R. I. 
 450, 22 Atl. iiii; 
 
 Cohn ®. Ward, 32 W. Va. 34, 9 S. 
 E.4I. 
 
 In the following cases, transfers 
 have been declared void as tending 
 to delay creditors. 
 
 Pitts 1). Lighthall, 62 Hun. 618, 
 16 N. Y. Supp. 627; 
 
 McDowell «. Steele, 87 Ala. 493, 
 6 So. 288; 
 
 Merchants Nat. Bank v. Chapin, 
 61 Hun. 620, 15 N. Y. Supp. 427; 
 
 Blum V. McBride, 69 Tex. 60, 5 
 S. W. 641; 
 
 Cutcheon «:. Buchanan, 88 Mich. 
 594. 50 N. W. 756. 
 
 ILinn «. Wright, 18 Tex. 317, 70 
 Am. Dec. 282; Hefner v. Metcalf, i 
 Head, 577. 
 
 2 Ho fE man ». M ackall 5 
 Ohio St. 124, 64 Am. Dec. 637. "The 
 hindrance and delay contemplated 
 by the statute has in it the element of 
 fraud, and if a hindrance or delay 
 be found in any case to be free from 
 this element, then it is not of that 
 character which, under the statute, 
 vitiates conveyances." Ellis m. 
 Valentine, 65 Tex. 532, 546: cit- 
 ing this section; Greenleve ®. Blum, 
 59 Tex. 124. 
 
 8 Quarles v. Kerr, 14 Gratt. 48; 
 Sutton v. Hanford, ii Mich. 513. 
 
FRAUDULENT INTENT. 19 
 
 positive intent to defraud always exists where the induce- 
 ment to a conveyance is to hinder and delay creditors, since 
 the right of creditors to receive their demands when due 
 is as absolute as their right to receive them at all.^ There- 
 fore, 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.^ 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 pro- 
 ceedings is a delay and hindrance within the meaning of 
 the statute. The obstacle, however, must be interposed be- 
 tween the creditors and the property of the debtor. If, 
 after a transfer, the property does not, either in fact or con- 
 templation of law, belong to the debtor, or if the interest re- 
 served is merely diflBcult to reach on account of its peculiar 
 character, then there is no hindrance and delay within the 
 statute. It is for this reason that a preference'^ or an assign- 
 ment for the benefit of creditors,* may be made for the ex- 
 press purpose of defeating an execution. The creditor may 
 be baffled or even eventually lose his debt, but there is no 
 obstacle interposed between him and any property which 
 belongs to the debtor. 
 
 § 24. How the Fraudulent Intent is Ascertained. — The 
 
 test words by which the validity of a transfer is tried are, 
 "to the end, purpose, and intent to hinder, delay or defraud." 
 The presence of this intent is essential to render a convey- 
 
 iNichoIson v. Leavitt, 6 N. Y. 892; s. c. 7 Q. B. 892; Darvill v. 
 
 510; s. c. loN. Y. 591; s. c. 4Sandf. Terry, 6 H. & N. 807; Hall v. 
 
 252; 57 Am. Dec. 499. Arnold, 15 Barb. 599; Hartshorne v. 
 
 SWheelden v. Wilson, 44 Me. 11; Eames, 31 Me. 93; Gassett v. Wil- 
 
 Borland ». Mayo, 8 Ala. 104; Kim- son, 3 Fla. 235; Wheaton w. Neville, 
 
 ball ®. Thompson, 58 Mass. 441, 50 ig Cal. 41. See sec. 170, post. 
 Am. Dec. 799; Stovall «. Farmer's *Riches v. Evans, 9 C. & P. 640; 
 
 Bank, 16 Miss. 305:47 Am. Dec. 85; Johnson v. Osenton, L. R. 4 Ex. 
 
 McLean v. Lafayette Bank, 3 107; Wilt v. Franklin, i Binn. 502; 
 
 McLean, 587. 2 Am. Dec. 474; Jackson z/. Cornell, 
 
 SHolbird v. Anderson, 5 Term i Sandf. Ch. 348; Horwitz v. Ellin- 
 
 R. 235; Wood V. Dixie, 53 E. C. L. ger, 31 Md. 492. See post, sec. 332, 
 
20 
 
 FKAUDULENT INTENT. 
 
 ance void.^ The transfer must also be "devised and con- 
 trived of malice, fraud, covin, collusion, or guile," and the 
 intent must be marked by these characters or one of them. ^ 
 Every contrivance, however, to the intent to delay, hin- 
 der or defraud creditors is malicious. If the hindrance of 
 creditors forms any part of the actual intent of the act 
 done, so far the act is, as against them, a malicious contriv- 
 ance.^ 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.* 
 When the existence of 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.^ When fraud is 
 
 iSibley v. Hood, 3 Mo. 290; 
 
 Knapp V. Day, 4 Colo. App. 21, 34 
 
 Pac. 1008; Jones v. Light, 86 Me. 
 
 437, 30 Atl. 71 ; First Nat. Bank of 
 
 Sturgis V. Buck, 56 Mich. 394, 23 
 
 N. W. 57; May «. State Nat. Bank, 
 
 Ark., 28 S. W. 431; Hedrick «. 
 
 Strauss, 42 Neb. 485, 60 N. W. 1055; 
 
 Austin V. First Nat. Bank, 47 111. 
 
 App. 224; Mead B. Combs, 19 N. J. 
 
 Eq. 112; Holt «. Creamer, 34 N. J. 
 
 Eq. 1S7; Hoyt v. Godfrey, 88 N. Y. 
 
 669; Billings B. Russell, loi N. Y. 
 
 226, 4 N. E. 531; Moore «. Hin- 
 
 nant, 89 N. C. 455; Worthy v. 
 
 Brady, 91 N. C. 269; Manning v. 
 
 Reilly, 16 Weekly Dig. (N. Y.) 230; 
 
 Baldwin v. Rogers, 28 Minn. 544, 
 
 II N. W. 77. 
 
 2Ewing V. Runkle, 20 111. 448; 
 
 Meux V. Howell, 4 East i. 
 
 SHafner v. Irwin, i Ired. 490. 
 *Allen V. Wheeler, 70 Mass. 123; 
 Ewing V. Gray, 12 Ind. 64; Maples 
 V. Burnside, 22 Ind. 139; Banfield 
 V. Whipple, 96 Mass. 13, 87 Am. 
 Dec. 618 ; Green v. Tanner, 49 
 Mass. 411; Bagg z/. Jerome, 7 Mich. 
 145; Jackson v. Mather, 7 Cow. 301; 
 Nicol V. Crittenden, 55 Geo. 497; 
 Williams v. Evans, 6 Neb. 216. 
 
 STyrer 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. C. 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; Tog- 
 
 nini v. Kyle, 17 Nev, 209, 45 Am.Rep. 
 
 442; 30 Pac. 829; Smith v. Collins, 94 
 
 Ala. 394, 10 So. 334; Bull V. Bray, 89 
 
 Cal. 286, 26 Pac. 873; Knox v. 
 
 Moses, 104 Cal. 502, 38 Pac. 318; 
 
 Howe Mach.Co. Z'.Claybourn, 6 Fed. 
 
 438; Morse v. Riblet, 22 Fed. 501; 
 
 Citizens' Bank v. Bolen, 121 Ind. 
 
 301, 23 N. E. 146; Warner v. Lit- 
 
 tlefleld, 89 Mich. 329, 50 N. W. 721; 
 
 Wessels v. Beemau, 66 Mich. 343, 
 33 N. W. 510; Bedford v. Penney, 
 65 Mich. 667, 32 N. W. 888; Lewis 
 V. Rice, 61 Mich. 97, 27 N. W. 867 ; 
 Spear v. Rood, 51 Mich. 140, 16 N. 
 W. 312 ; King v. Hubbell, 42 Mich. 
 597 ; 4 N. W. 440 ; Wilcox v. Land- 
 berg, 30 Minn. 93, 14 N. W. 365 ; 
 Ladnier v. Ladnier, 64 Miss. 368, i 
 So. 492; State V. Mason, 112 Mo. 374, 
 
FRAUDULENT INTENT. 
 
 21 
 
 thus ,a question of fact, it is called actual fraud, or fraud 
 in fact. 
 
 § 25. Fraud iu 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 necessary consequence of his apt, and if an act 
 necessarily delays, hinders or defrauds creditors, then the 
 law presumes that it is done with a fraudulent intent.-^ If 
 
 20 S. W. 629; 34 Am. St. Rep. 390; 
 Thompson v. Benner, 33 Neb. 193, 49 
 N. W. 1116; Connolly v. Miller, 22 
 Neb. 82; 34 N. W. 76 ; Inglehart v. 
 Thousand Islands Hotel Co., 109 N. 
 Y.454, 17 N. E. 358; Beasley z/. Bray, 
 98 N. C. 266, 3 S. E. 497; Hooser v. 
 Hunt, 65 Wis. 71, 26 N. W. 442 ; 
 Evans V. Rugee, 63 Wis. 31, 23 N . W. 
 24 ; Trowbridge v. Sickler, 54 Wis. 
 306, II N. W. 581 ; Mehlhop v. Pet- 
 tibone, 54 Wis. 652, 11 N. W. 553 ; 
 Hyde v. Chapman, 33 Wis. 392. 
 
 When there is a special finding, 
 the fraudulent intent must be 
 found as a fact. Citizens Bank v. 
 Bolen, 121 Ind. 301 ; 23 N. E. 146 ; 
 Fletcher v. Martin, 126 Ind. 55, 25 
 N. E. 885 ; Hartlepp v. Whitely, T29 
 Ind. 576, 28 N. E. 535 ; Sickman v. 
 Wilhelm, 130 Ind. 480, 29 N. E. 908. 
 
 iBabcock v. Eckler, 24 N. Y. 
 623 ; Potter v. McDowell, 31 Mo. 
 62 ; O'Connor v. Bernard, 2 Jones, 
 654 ; Freeman v. Pope, L. R. 5 Ch. 
 538 ; s. C. L. R. 9 Eq. 206 ; Norton 
 V. Norton, 59 Mass. 524 ; Freeman 
 V. Burnham, 36 Conn. 469 ; Phelps 
 V. Curts, 80 111. 112 ; Allan v. Mc- 
 Tavish, 8 Out. App. 440 ; Winches- 
 ter V. Charter, 97 Mass. 140; Fearn 
 V. Ward, 80 Ala. 555, 2 So. 114; 
 Innis V. Carpenter, 4 Colo. App. 30; 
 34 Pac. ion; Knapp v. Day, 4 
 Colo. App. 21. 34 Pac. loo8 ; Warner 
 Glove Co. V. Jennings, 58 Conn. 74 ; 
 19 Atl. 239; Austin V. First Nat. 
 
 Bank, 47 111. App. 224; Barhydt v. 
 Perry, 57 la. 416 ; 10 N. W. 820 ; 
 Elerick v. Braden, 38 Kans. 83, 15 
 Pac. 887; Cutcheon v. Buchanan, 
 88 Mich. 594 ; 50 N. W. 756-; Seger 
 V. Thomas, 107 Mo. 635; 18 S. W. 
 33 ; Farmers' and Merchants' Bank 
 V. Price, 41 Mo. App. 291; Watkins 
 V. Arms, 64 N. H. 99; 6 Atl. 92; 
 Cheatham v. Hawkins, 80 N. C. 
 161 ; Rencher v. Wynne, 86 N. C. 
 268 ; Brisco v. Norris, 112 N. C. 
 671, 16 S. E- 850 ; Sutherland v. 
 Bradner, 116 N. Y. 410, 22 N. E. 
 554 ; Marks v. Crow, 14 Ore. 382 ; 
 13 Pac. 55; Buckley v. Duff, 114 
 Pa. St. 596; 8 Atl. 188; Claflin v. 
 Mess, 30 N.J. Eq, 211; Hudson v. 
 Willis, 87 Tex. 387 ; 28 S. W. 929 ; 
 Elser V. Graber, 69 Tex. 222 ; 6 S. 
 W. 560; Blum V. McBride, 69 Tex. 
 60; 5 S. W. 641; Marmon Z'. Har- 
 wood 124 111. 104 ; 16 N. E. 236 ; 7 
 Am. St. Rep. 345 ; Hunters v. 
 Waite, 3 Gratt. 26 ; Douglas Mdse. 
 Co. V. Laird, 37 W. Va. 687 ; 17 S. 
 E. 188 ; Cornish v. Clark. L. R. 14 
 Eq. 184 ; In re Maroney, 21 L. R. 
 Ir. 27 ; In re Wood, L. R. 7 Ch. 302 ; 
 Crossley ». Elworthy, L. R. 12 Eq. 
 158 ; Mackay v. Douglas, L. R. 14 
 Eq. 120; Washburn ». Hammond, 24 
 N. E. R. 33; TAvam^x «. Miller, 64 
 Md. 296; I Atl. 858; Phiferj). Erwin, 
 100 N. C. 59 ; 6 S. E. 672 ; Gardner 
 ». Commercial Bank 13 R. I. 155. 
 
22 FRAUDULENT INTENT. 
 
 the law adjudges the effect to be to delay, hinder, or 
 defraud creditors, then the transfer is to be regarded as 
 fraudulent, though this may not have been the intention of 
 the parties.-' 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.^ 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 pro- 
 visions is to delay, hinder, or defraud creditors, it is void 
 as a conclusion of law.^ Ifl 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.* To justify the inference of a fraudulent intent, 
 however, when no fraud in fact is proven, there must be 
 creditors who may be delayed, hindered or defrauded, and 
 the necessary consequences of the act must be to produce 
 such delay, hindrance or fraud.^ In the construction of 
 written instruments, also, the existence of fraud is a ques- 
 
 iBentz V. Rockey, 69 Penn. 71. direct a verdict when the fraudulent 
 SBabcock v. Eckler, 24 N. Y. 623; intent appears on the face of the 
 Potter V. McDowell, 31 Mo. 62. instrument or by uncontradicted 
 SMitchell V. Beal, 8 Yerg. 134, 29 ^""^ positive verbal evidence. Bui- 
 Am. Dec. 108; Ashurst v. Martin, 9 ^er v. Rosa, 119 N. Y. 459, 24 N. 
 Port, 566 ; Sheldon v. Dodge, 4 ^- ^53- 
 
 Denio, 217; Griffin v. Cranston, 10 ^Gerrish v. Mace, 75 Mass. 250. 
 
 Bosw. 1 ; s. c. I Bosw. 281 ; Young Where the facts are apparent or un- 
 
 V. Booe, II Ired. 347; Johnson v. disputed, their effect is a question 
 
 Thweatt, 18 Ala. 741 ; Bigelow v. °f l^-w for the court, in all other 
 
 Stringer, 40 Mo. 195 ; Gere v. Mur- cases fraud is a question for the 
 
 ray, 6 Minn. 305 ; Goodrich v. j^r}'. Houck v. Heinzman, 37 Neb. 
 
 Downs, 6 Hill. 438 ; Battels v. 463. 55 N. W. 1062. 
 Harris, 4 Me. 146 ; Harman v. Hos- sPope v. Wilson, 7 Ala. 690 ; 
 
 kins, 56 Miss. 142. And though a State v. Estel, 6 Mo. Ap. 6 ; Day v. 
 
 statute declares that fraud shall be Lown, 51 la. 364, i N. W. 786. 
 a question of fact, the court may 
 
FRAUDULENT INTENT. 23 
 
 tion of fact whenever their terms and stipulations are by 
 possibility compatible with good faith, and have upon their 
 face the essential elements of a legal contract.^ When- 
 ever fraud is thus the inevitable consequence of an act or 
 instrument, it is called constructive fraud, or fraud in 
 law.^ A constructive fraud is an act which the law de- 
 clares 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 irre- 
 sistible evidence of fraud.^ 
 
 § 26. 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 cred- 
 itors, 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 trans- 
 fer is tainted and may be set aside at the suit of any 
 creditor.^ 
 
 § 27. 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, 
 
 ijones V. Huggeford, 44 Mass. whether it is found by a jury to 
 
 515; Hastings v. Baldwin, 17 Mass. exist as a matter of fact, in either 
 
 552; Williams z;. Anderson, 6 IJeb.3g2. case the transfer is made with the 
 
 2I/ukins V. Aird, 6 Wall. 78. intent to defraud creditors and may 
 
 SM'Broom "v. Rives, i Stew. 72. be avoided." Wait on Fraudulent 
 
 *" Whether the fraudulent intent Conveyances, 2nd. Ed., section 9; 
 
 is reasoned out and declared by the Lawson v. Funk, 108 111. 502. 
 court by the proper application of SOliver Lee & Co.'s Bank v. Tal- 
 
 the rules of legal interpretation to cott, 19 N. Y. 146 ; Gere v. Murray, 
 
 the particular instrument or trans- 6 Minn. 305. 
 action under consideration or 
 
24 FRAUDULENT INTENT. 
 
 therefore, supposes that everyone is capable of perceiving 
 what is wrong, and if one 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 capricious notions 
 of right and wrong. Whatever a man's opinions of his own 
 acts may be, there are certain rules founded in experience 
 and established by law for determining the validity of trans- 
 fers under the statute, and if these rules are transgressed, 
 they are void, without regard to the opinion of the parties 
 to the transfer.^ Fraud, therefore, does not necessarily 
 impute a corrupt or dishonorable motive. Parties may do 
 what they consider perfectly fair, for the purpose of pre- 
 venting a sacrifice merely, and with the intention of paying 
 all the creditors ultimately, or may be animated merely by 
 motives of affection or compassion,^ but the law does not 
 sanction any contrivance for either defeating or delaying 
 creditors,^ and invalidates such contrivances without regard 
 to the motives of the parties.* 
 
 4 
 
 iPotter V. McBowell, 31 Mo. 62; 76 Me. 493 ; Crandall v. Lincoln, 
 
 Grover zf. Wakeman, II Wend. 187; 52 Conn. 73; 52 Am. Rep. 560; Farrow 
 
 s. c. 4 Paige, 23 ; 25 Am. Dec. 624. v. Hayes, 51 Md. 498. 
 
 SSturdivant v. Davis, 9 Ired. 365; "There is force in the remark of 
 
 Gardiner Bank v. Wheatou, 8 Me. Mr. Bigelow, that the term "legal 
 
 373; Briggs V. Mitchell, 60 Barb. fraud," is a misnomer. The word 
 
 288; Trimble z^. Turner, 21 Miss 348; "fraud" implies moral turpitude. 
 
 Flood V. Prettyman, 24 111. 596. When a transaction is avoided by 
 
 SEnders v. Swayne, 8 Dana, 103. the statute without respect to the 
 
 *"It may be noticed further that motive which induced it, but upon 
 
 the language of the American stat- consideration of policy only, it is 
 
 utes points less.when literally taken, unlawful and not fraudulent. To 
 
 to personal motive, than does the style it fraudulent, whether the 
 
 statute of Elizabeth." Bigelow on fraud be legal or otherwise, may fix 
 
 Fraud, Vol. II, 116. See anU, sec- an unmerited stigma upon the par- 
 
 tion 25, and cases cited, also, Rob- ties to the transaction. A more 
 
 erts V. Radcliff, 35 Kans. 502; 11 Pac. just and appropriate appellation to 
 
 406; Stratton v. Putney, 63 N. H. apply to conveyances of the former 
 
 577; 4 Atl. 876; Robinson v. Clark, class would be simply unlawful 
 
FRAUDULENT INTKNT. . 25 
 
 § 28. Traud as a Question of Law. — It follows, therefore, 
 that what coastitutes fraud is a question of law. It is the 
 judgment of law upon facts and intents.^ Fraud is 
 expressive of a legal idea, and admits of a legal definition. 
 It is, therefore, a matter of law. The expression that when 
 there is no dispute about the facts, fraud is a question of 
 law,^ is not strictly accurate, for the intent is a material 
 fact^ and this is not in all cases an inference of law. But 
 when the intent is ascertained, the law pronounces whether 
 it is fraudulent and covinous.* Whenever the transfer is 
 tainted with actual and not constructive fraud, it is the 
 province of the tribunal for the ascertainment of facts to 
 find the actual intent. In that sense, fraud is sometimes 
 called a mixed question of law and fact.^ But it is never 
 exclusively one of fact. It has never been held that the 
 jury may give to the 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 j)rinciples of 
 the law, and not on the uncertain judgment of jurors as 
 to what is fraud.^ 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 tendency to prove it.^ 
 
 while the term fraudulent would Bwilson v. I<ott. 5 Fla. 305 ; Hall 
 
 still be properly applicable to the v. Tuttle, 8 Wend. 375 ; Haven v. 
 
 latter class of conveyances." Hag- Low, 2 N. H. 13 ; 9 Am. Dec. 25; 
 
 erman v. Buchanan, 45 N. J. Eq. Mclvaughlin v. Bank of Potomac, 
 
 292, 14 Am. St. Rep. 732, i7Atl. 946. 7 How. 220 ; Dodd v. McCraw, & 
 
 iWorseley v. BeMattos, I Burr. Ark. 83 ; 46 Am. Dec. 301 ; Means 
 
 467 ; Sturtevant v. Ballard, 9 Johns. »■ Feaster, 4 Rich. (N. S.) 249. 
 
 337 ; 6 Am. Dec. 281 : Planters' Bank ^Gregory v. Perkins, 4 Dev. 50. 
 
 V. Borland, 5 Ala. 531. 7Leadman v Harris, 3 Dev. 144; 
 
 SSturtevant v. Ballard, 9 Johns. Mott -v. McNeal, i Aik. 162 ; Dur- 
 337 ; 6 Am. Dec. 281 ; Divver v. key v. Mahoney, i Aik. 116 ; Gib- 
 McLaughlin, 2 Wend. 596 ; 20 Am. son v. Love, 4 Fla. 217 ; Smith v. 
 Dec. 655. Henry 2 Bailey, 118 ; s. c. i Hill, 
 
 SGeigler v. Maddox, 28 Mo. 575. 16 ; Babb v. Clemaon, 10 S. & R. 
 
 4Gere v. Murray, 6 Minn. 305 ; 419 ; 13 Am. Dec. 684 ; Cadbury v. 
 
 Gregory v. Perkins, 4 Dev. 50 ; Nolen, 5 Penn. 320 ; vide Kane v. 
 
 Hardy v. Simpson, 13 Ired. 132 ; Drake, 27 Ind. 29 ; Wynne v. Gilde- 
 
 Kean v. Newell, 2 Mo. 9. well, 17 Ind. 446 . 
 
26 FRAUDULENT INTENT. 
 
 § 29. Establishment of Intent. — The intent whicli 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.^ This intent must in general be the intent of the 
 debtor, and not that of some third person. But if the maker 
 ha,s 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 tliereof.^ 
 
 § 30. Intent to Prevent a Sacrifice.^ — The mere intent to 
 prevent a sacrifice of the property is not sufficient to render 
 a conveyance void.* 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.' 
 
 § 31. Accident. — Accident or mistake can not in general be 
 deemed sufficient to render any one guilty of fraud f but 
 
 iBurgert v. Borchert, 59 Mo. 80; continue in business by placing his 
 
 Hillard v. Cagle, 46 Miss. 309. property beyond the reach of legal 
 
 sWarner v. Warren, 46 N. Y. 228. process, it is void as to creditors, 
 
 3See German Ins. Bank v. although it may be intended in 
 
 Nunes, 80 Ky. 334; Bridgman v. good faith for the ultimate benefit 
 
 Christie, 51 N. Jf. Ch. 331; 25 Atl. of all the creditors by preventing a 
 
 939; and sees. 335, 350 posi. sacrifice of the property." Sabin 
 
 ICason V. Murray, 15 Mo. 378. v. Columbia Fuel Co., 25 Ore. 15, 
 
 6Brown v. Osgood, 25 Me. 505; 42 Am. St. Rep. 756; 34 Pac. 692; 
 
 Borland v. Mayo, 8 Ala. 104. Van Nest v. Yoe, i Sandf. ch. 9. 
 
 " Where a mortgage is designed BRunyon v. Uary, 4 Dev. &Bat. 
 
 and made for the benefit of the 231; Fuller z^. Acker, i Hill 473. 
 mortgagor, and to enable him to 
 
FRAUDULENT INTENT. 27 
 
 the parties to a written instniment 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.^ 
 
 §32. 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.^ 
 
 § 33. Fraud Must be in the Beginning. — As fraud de- 
 pends upon the intent of the debtor, it must be in the in- 
 ception of the transfer,^ and is the same in the smallest as 
 in the largest transaction.* 
 
 § 34. Yoid as to One, Void as to AU.^ — 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 de- 
 fraud all creditors.^ It is not, on the other hand, neces- 
 
 lAugust V. Seeskind, 6 Cold. 1°° N. C. 59, 6 S. E. 672; Marks 
 
 166; Hooper v. Tuckerman, 3 Sandf. ■"■ Crow, 14 Ore. 382; 13 Pac. 55. 
 
 311. ^State V. Benoist, 37 Mo. 500. 
 
 SGrover v. Wakeman, 11 Wend. 5lf a transfer is void as to one 
 
 i87;s. i;. 4Paige23;25Am.Dec. 624; creditor it is void as to all. Barrett 
 
 Hyslop V. Clarke, 14 Johns. 458; j,. Nealon, 119 Pa. St., 171; 12 Atl. 
 
 Ualsey v. Whitney, 4 Mason, 206; 361; but contra, Crawford v. Neal, 
 
 Green v. Trieber, 3 Md. 11; Gait 144 u. S. 585, 12 S. Ct. 759. A 
 
 V. Dibrell, 10 Yerg. 146. See post, mortgage securing two creditors 
 
 Chapter XXII. is not avoided as to one who takes 
 
 SStone V. Grubbam, 2 Bulst, 217; in good faith because the debt to 
 
 S. c. 1 Rol. Rep. 3; Shep. Touch, 66; the other is fictitious. Riggon v. 
 
 Weller v. Wayland, 17 Johns. 102; Wolf, 53 Ark. 537; 14 S. W. 922. 
 
 Claytor v. Anthony, 6 Rand, 285; When a fraudulent conveyance is 
 
 Sommerville v. Horton, 4 Yerg. set aside by certain creditors another 
 
 541; 26 Am. Dec. 242; Pope J". Wilson, creditor may ratify it and enforce 
 
 7 Ala. 690; Ray v. Simons, 76 Ind. rights g^iven him thereunder. Ger- 
 
 150; Rose V. Colter, 76 Ind. 590; man Nat. Bank v. Leonard, 40 
 
 Keel V. Larkin, 83 Ala. 142, 146, Neb. 676; 59 N. W. 107. 
 
 3 So. 296; Knox !<. Moses, 104 Calif . BAllen z/. Kingon, 41 Mich. 281, 
 
 502; 38 Pac. 318; Ware v. Purdy, 1 n. W. 863. 
 la., 60 N. W. 526; Phifer v. Erwin, 
 
28 FRAUDULENT INTENT. 
 
 sary to establish a specific design to delay, hinder, or 
 defraud the particular creditor who assails the transfer, 
 for the intent to delay, hinder, or defraud one creditor ren- 
 ders the transfer void as to all.' It has never been deter- 
 mined to be necessary in order to make a transfer void that 
 any creditor should be actually hindered or delayed. The 
 statutes speaks of those who may be hindered.^ 
 
 § 35. Corporations. — A corporation may in judgment of 
 law intend to defraud creditors.^ 
 
 § 36. 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.^ 
 
 § 37. 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.^ 
 
 § 38. Act Autliorized by Statute. — Acts which are done in 
 pursuance of a statute cannot be deemed fraudulent, for 
 
 • ITurbervill v. Tipper, Palm. I. and B. Assn., 48 Minn. 490, 51 N. 
 
 415, note; Rex v. Nottingham, W. 475, 31 Am. St. Rep. 663; Bloom 
 
 Ivane, 42; Warneford's Case, Dyer, v. Moy, 43 Minn. 397, 45 N. W. 715, 
 
 i:93> 267; Winer v. Warner, 2 Grant, 19 Am. St, Rep, 243 ; Sanders v. 
 
 448; Hoke V. Henderson, 3 Dev. 12; Chandler; 26 Minn. 273, 3 N. W. 351. 
 Gruber v. Boyles, i Brev. 266; Dar- 2Richardson v. Smallwood, Jac. 
 
 denne v. Hardwick, 9 Ark. 482; 552; Main v. Lynch, 54 Md. 658. 
 
 Warner v. Percy, 22 Vt. 155; Bodine But see Weaver v. Owens, 16 Ore, 
 
 V. Simmons, 38 Mich. 682; vide 301, 18 Pac. 579. 
 Wilson V. Fuller, 9 Kans. 176. SCurtis v. Leavitt, 15 N. Y. 9, S. 
 
 But a subsequent creditor cannot ■ C. 17 Barb, 309; Smith v. Morse, 2 
 
 avoid a. conveyance, not intended Calif, 524; J. W. Butler Paper Co. 
 
 and not operating as a fraud upon v. Robbins, 151 111. 588, 38 N. E. 
 
 him, on the ground that it was 152; Cole v. Mercantile Trust Co., 
 
 executed with intent to defraud 133 N. Y. 164, 30 N. E. 847. 
 exisiting creditors, "There is no 4Reed v. Noxon, 48 111. 323; 
 
 warrant in the statute for Ijolding Borland z-. Mayo, 8 Ala. 104; Louis- 
 
 that one class of creditors may iana Sugar Refining Co. v. Harmon, 
 
 avoid a conveyance merely on the Tex. Civ. App., 29 S. W. 500. 
 ground that it was intended to, and Sfiarkow v. Sanger, 47 Wis. 500 ; 
 
 if sustained will, defraud another 3 N. W. 16. 
 class." FuUington v. Northwestern 
 
BADGES OF FRAUD. 29 
 
 the statute is enacted by. the power that made the law of 
 fraud, and can therefore with equal power unmake that 
 law.i 
 
 § 39. A Fraudulent Transfer not Necessarily Fictitious. — 
 
 In a fraudulent conveyance there is generally an intention 
 to secure some interest in the property to the debtor, or 
 some future right in it to the prejudice of the creditors,^ 
 and therefore it is sometimes said that a fraudulent instru- 
 ment is one which the parties do not intend to carry out as 
 a real instrument according to its apparent character and 
 effect.^ It is manifest, however, that an instrument may 
 be fraudulent although it is intended to operate as a real 
 transfer, as in the case of a voluntary conveyance by an in- 
 solvent debtor. A feigned conveyance is a fraudulent con- 
 veyance, but a fraudulent conveyance is not necessarily 
 fictitious. 
 
 § 40. Terdict 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 case.* 
 
 CHAPTER IV. 
 
 BADGES OP FEAUD. 
 
 § 41. The Term "Badges of Fraud" Explained. — A badge 
 of fraud is sometimes called a sign of fraud, a mark of 
 fraud,^ a circumstance of fraud, an evidence of fraud, and 
 an argument of fraud.^ These terms are all synonymous, 
 and simply denote an act which has a fraudulent aspect. 
 
 iState V. Curran, 12 Ark. 321; ^Bodd v. McCraw, 8 Ark. 83; 
 
 Frankhouser v. Ellett, 22 Kans. 46 Am. Dec. 301; Vance z/. Phillips, 
 
 127, 31 Am. Rep. 171. 6 Hill, 433; Potter v. Payne, 21 
 
 SNorthampton Bank z/. Whiting, Conn. 361; Marston v. Vultee, 12 
 
 12 Mass. 104; Belmont v. Lane, 22 Abb. Pr. 143; Edwards v. Currier, 
 
 How. Pr. 365. 43 Ms. 474; Weisiger v. Chisholm, 
 
 SEveleigh v. Purrsford, 2 Mood. 28 Tex. 780; 22 Tex. 670. 
 
 & Rob. 539; Doe v. Routledge, STwyne's case, 3 Co. 80, Moore 
 
 2 Cowp. 705. 638. 
 
 fiCadogau v. Kennett, 2 Cowp 432. 
 
30 
 
 BADGES OF FRAUD. 
 
 An intent to defraud is an emotion of the mind, and as 
 fraud is usually hatched in secret, there are generally no 
 means of ascertaining whether it exists, except by observ- 
 ing the acts of the parties engaged in any transaction, and 
 deducing the intent from those acts in accordance with cer- 
 tain 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 man- 
 kind.^ The law adopts and acts upon the known princi- 
 ples 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.^ 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 suspicion of 
 unfairness exists.^ 
 
 iTerrell v. Green, ii Ala. 207. 
 
 ^Peebles v. Horton, 64 N. C. 374; 
 Pilling V. Otis, 13 Wis. 495; Sher- 
 man V. Hogland, 73 Ind. 472. 
 
 STerrell v. Green, 11 Ala. 207. 
 This chapter is cited with appro- 
 val by Mr. Justice Avery, in Brown 
 V. Mitchell, 102 N. C. 347, 9 S. E. 
 703. 
 
 "The term "badge of fraud" is a 
 term of convenience and not a term 
 of art, that is to say it has no exact 
 meaning." Bigelow on Fraud, II, 
 432' 
 
 "The expression is used to distin- 
 guish the lighter grounds on which 
 fraud may be established as distin- 
 guished from the cases where the 
 fraud is apparent on the face of 
 the instrument and necessarily in- 
 volves its invalidity." Burrill on 
 Assignments, 4 Ed., section 346. 
 
 "A dedviction of fraud may be 
 made not only from deceptive as- 
 sertions and false representations 
 but from facts, incidents and cir- 
 cumstances which may be trivial in 
 
 themselves but decisive evidence 
 in the given case of a fraudulent 
 design." 2 Kent Com., 484. 
 
 "There are numerous circumstan- 
 ces so frequently attending sales, 
 conveyances and transfers intended 
 to hinder, delay and defraud credi- 
 tors, that they are known and 
 denominated badges of fraud. They 
 do not constitute — are not elements 
 of fraud, but merely circumstances 
 from which it may be inferred." 
 
 Thames v. Rembert, 63 Ala. 567. 
 
 "Where a sale is alleged to be 
 fraudulent it is not necessary to 
 prove any fact which, taken by 
 itself, would necessarily show fraud, 
 but if the jury believe from the 
 case as a whole, that a fraudulent 
 result was intended by the bill of 
 sale in the making of the same, 
 they should find it fraudulent as to- 
 all the property included therein." 
 
 Harwick v. Weddington, 73 la. 
 300, 34 N. W. 868. See note to 
 Mobile Savings Bank v. McDonnell, 
 9 L. R. A. 645, Ala. 
 
BADGES OE FRAUD. 3 1 
 
 § 42. Why an Act is a Badge of Fraud. — The reason why 
 any act is denominated a badge of fraud is either because 
 its natural aifd 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 eyery 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.'^ 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.^ It evinces a difl5- 
 dence in the rectitude of the transaction, and a correspond- 
 ent solicitude to provide defences.^ Whatever may be 
 the form it assumes, it always excites suspicion, for an 
 assumed act is generally prompted by some unusual motive. 
 When men's designs are correct, they are usually content 
 to carry them into effect in the usual mode* To raise such 
 a suspicion, however, upon this ground, it is i^ot sufficient 
 that the transfer shall be out of the ordinary course of the 
 debtor's business, but must be out of the usual course in 
 which men commonly make such transfers.* 
 
 § 43. 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 
 
 iSands v. Codwise, 4 Johns. 2Comstock v. Rayford, 20 Miss 
 
 536; Borland v. Walker, 7 Ala. 269; 369, s. c. 9 Miss. 423, 40 Am. Dec. 
 
 Kempner v. ChurcWll, 8 Wall, ;o2. 
 
 362; Sayre v. Fredericks, 16 N. J. SSands v. Codwise, 4 Johns. 536. ,1 
 
 Eq. 205; Poague v. Boyce, 6 J. J. 4Potter v. McDowell, 31 Mo. 62. 
 
 Marsh, 70; Godfrey v. Germain, 24 SDerby v. Gallup, 5 Minn. 119 ; 
 
 Wis. 410; Rothberger v. Gough, 52 Hathaway v. Brown, 18 Minn. 414. 
 111. 436. 
 
32 BADGES OF FRAUD. 
 
 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.^ 
 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.^ 
 
 § 44. 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.^ 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 aflBxed to it, for all presumption becomes 
 conclusive unless explained. Any one badge simply will 
 impeach a conveyance, and on the other hand several badges 
 may unite and the transaction still be protected.* The 
 concurrence of several badges will, however, always make 
 out a strong case, because the concurrence of a number of 
 independent circumstances, each tending to prove a fact, 
 increases and strengthens the probability of its truth.^ 
 
 § 45. 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 
 
 iPilling V. Otis, 13 Wis. 495. ^Thames v. Rembert, 63 Ala. 
 
 SRichards v. Swan, 7 Gill, 366; 561; Diggs v. McCullough, 69 Md. 
 
 2 Md. Ch. Ill ; Schaferman v. 592, 16 Atl. 453 ; Newman v. Kirk, 
 
 O'Brien, 28 Md. 565 ; 92 Am. Dec. 45 N. J. Eq. 677; 18 Atl. 224 ; Brown 
 
 7°^- V. Mitchell, 102 N. C. 347 ; 9 S. E. 
 
 swilson V. Lott, 5 Fla. 305; Al- 703; Smith v. Henry, 2 Bailey 118; i 
 
 len V. Wheeler, 70 Mass. 123; Pil- Hill 16; Williams z/. Barnett, 52 Tex, 
 
 ling V. Otis, 13 Wis. 495 \ Hill v. 130; Jackson v. Harby, 70 Tex. 410; 
 
 Bowman, 35 Mich. 191; Thames v. 8 S. W. 71 ; Hickman v. Trout, 83 
 
 Rembert, 63 Ala. 561. Va. 478 ; 3 S. E. 131. 
 
 iPeck V. Land, 2 Geo. i. 
 
BADGES OF FRAUD. '' 33 
 
 to the character of the transaction.^ 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.^ 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.* 
 
 § 46. No Enumeration Possible. — The modes of p erpetrat- 
 ing fraud are so various, and the circumstances that may 
 indicate a fraudulent intent are so numerous, that it is impos- 
 sible to anticipate or to enumerate all the badges of fraud.* 
 
 § 47. Transfer of all. — The tendency pro tanto of every 
 transfer that can be made by a debtor is to hinder and 
 delay his creditors, for it diminishes the fund out of which 
 they can enforce payment.^ A transfer of all the property 
 of the debtor not only diminishes the fund, but is not an 
 ordinary transaction, and is, therefore, a badge of fraud.® 
 The universality of the transfer is a circumstance to be con- 
 
 IKing V. Russell, 40 Tex. 124. Garland v. Rives, 4 Rand. 282 ; 15 
 
 2Herkelrath v. Stookey, 63 111. Am. Dec. 756 ; Pope v. Andrews, 
 
 486; Leasure v. [Colburn, 57 Ind. I S. & M. Ch. 135 ; Lillard v. Mc- 
 
 274. Gee, 4 Bibb. 165 ; Mason v. Baker, i 
 
 SKane v. Drake, 27 Ind. 29. A. K. Marsh. 208; Heeler v. Bullitt, 3 
 
 iPhinizy v. Clark, 62 Geo. 623. A. K. Marsh. 280 ; 13 Am. Dec. 166; 
 
 SPeck V. Ivaud, 2 Ga. i. Yoder v. Standiford, 7 Men. 478; 
 
 BTwyne's Case, 3 Co. 80 ; Moore, Glenn v. Glenn, 17 Iowa 498; Van- 
 
 638 ; Hawkins v. Allston, 4 Ired. dall v. Vandall, 13 Iowa 247; Adams 
 
 Eq. 137; Tubbz/. Williams, 7 Humph. z/. Slater, 19 Ind. 418; Sarle Z". Ar- 
 
 367 ; Farmers' Bank zi. Douglass, nold, 7 R. I. 582 ; Monell v. 
 
 19 Miss. 469 ; Trimble v. RatclifE, Sherrick, 54 111. 269 ; Burke v. 
 
 9 B. Mon. 511 ; 12 B. Mon. 32 ; Boz- Murphy, 27 Miss. 167 ; Wheelden 
 
 man v. Draughan, 3 Stew. 243; v. Wilson, 44 Me. i; Bibb j". Baker, 
 
 Rollins z/. Mooers, 25 Me. 192 ; 17 B. Mon. 292 ; Leadman v. Har- 
 
 Hord V. Rust, 4 Bibb, 231 ; Lewis ris, 3 Dev. 144 ; Kennedy v. Ross, 
 
 V. Love, 2 B. Mon. 345 ; 38 Am. 2 Mills Const. R. (S. C.) 125 ; Savr" 
 
 Dec. 161 ; Venable v. Bank, 2 Pet. v. Fredericks, 16 N J E<i. 205 ; 
 
 107 ; Langford v. Fly, 7 Humph. Chappel v. Clapp, 29 Iowa, 161 ; 
 
 585 ; Hartshorne v. Fames, 31 Me. Clark v. Wise, 39 How. Pr. 97 ; 
 
 93 ; Bean'!*. Smith,- 2 Mason, 252 ; For.syth v. Matthews, 14 Penn. 100, 
 
 Harrison v. Campbell, 6 Dana, 263; 53 Am. Dec. 522 ; Borland v. Walk- 
 
 Enders v, Swayne, 8 Dana, 103 ; er, 7 Ala. 269 ; Barr v. Hatch, 3 
 
34 
 
 BADGES OF FRAUD. 
 
 eidered in connection with all the other facts of the case.^ 
 Under some circumstances it raises a violent presumption 
 of fraud, while under other and different circumstances it 
 is but a slight indication of a fraudulent intent.^ 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.^ If several distinct transfers are not so closely 
 connected as to constitute one transaction, they do not fall 
 within the rule.* A transfer of all the debtor's property 
 does not warrant the inference that the grantee is aware 
 of the debtor's insolvency.^ 
 
 Ohio, 527 ; Parsons v. McKnight, 
 8 N. H. 35; Borland v. Mayo, 8 Ala. 
 104; Delaware v. Ensign, 21 Barb. 
 85; Wilson V. IvOtt, 5 Fla. 305; Con- 
 stantine v. Twelves, 29 Ala. 607; 
 Meyer z;. Simpson, 21 La. An. 591; 
 HutcHnson v. Kelley, i Robt. (Va.) 
 123)39 Am. Dec. 250; Oakoverz;. Pet- 
 tug, Cas. Temp. Finch, 270; Blow v. 
 Maynard, 2 I/Cigh, 29; Hinton v. 
 Curtis, I Pitts. L. J. 198; Peigne v. 
 Snowden, i Dessau, 591; Hughes v. 
 Roper, 42 Tex. 116; Dresher v. Cor- 
 son, 23 Kans. 313; Fleming v. Hiob, 
 3 Bradw. 390; Booher v. Worrill, 57 
 Geo. 235; Adams v. Edgerton, 48 
 Ark. 419; 3 S. W. 628; Harris v. 
 Russell, 93 Ala. 59; 9 So. 541; Tap- 
 scott V. Lyon, Cal., 37 Pac. 225; 
 Arnold z^. Wilds, 77 la. 593; 42 N. 
 "W. 555; Wise V. Wilds, 77 la. 586; 
 42 N. W. 553; Redhead v. Pratt, 72 
 la. 99; 33 N. W. 382; Roberts v. 
 Radcliff, 35 Kans. 502; 11 Pac. 406; 
 Snyder z;. Free, 114 Mo. 360; 21 S. W. 
 847; Seger v. Thomas, 107 Mo. 635 
 18 S. W. 33; Terhune v. Skinner, 
 45 N.J.Eq. 344; 19 Atl. 377; Spotteu 
 V. Keeler, 22 Abb. N. C. 105; In re 
 Catherwood's estate, 29 W. N. C. 
 344; Mitchell z/. Mitchell, 42 S.C. 475; 
 20 S. E. 405; Robinson v. Frankel, 
 85 Tenn. 475; 3 S. W. 652; Banner v. 
 May, 2 Wash. St. 221; 26 Pac. 248; 
 Bartlett v. Cleavenger, 35 W. Va. 
 
 719, 14 S. E. 273; Spence v. Smith, 
 34 W. Va. 697; 12 S. E. 828; Ex 
 parte Field, 13 Ch. D. 106, n; 28 W. 
 R. 267; Ex parte Ellis, 2 Ch. D. L. 
 J. 798; In re Wood, L. R. 7 Ch. 702; 
 Ex parte Foxley, L. R. 3 Ch. 515; 
 r6 W. R. 831; 18 L. T. (N. S.) 862; 
 the English cases so holding under 
 the Bankruptcy act. 
 
 iTwyne's case, 3 Co. 80, Moore 
 638. 
 
 SBigelow V. Doolittle, 36 Wis. 
 115; Kerr v. Hutchins, 46 Tex. 384. 
 
 SPlanters' Bank v. Borland, 5 
 Ala. 531; Borland v. Mayo, 8 Ala. 
 104; Dardenne v. Hardwicke, 9 
 Ark. 482; First Nat. Bank v. Ride- 
 nour, 46 Kans. 707, 27 Pac. 150; 
 Schram v. Taylor, 51 Kans, 547, 33 
 Pac. 315; Bank of Georgia v. Hig- 
 giubottom, 9 Pet. 48; Alton v. Har- 
 rison, L. R. 4 Ch. 622; 38 L.J. (N. S ) 
 Ch. 669; 17 W. R. 1034; Bolderoz/. 
 London and Westminster Discount 
 Co., 5 Ex. D. 47; 28 W. R. 154; 42 L. 
 T. (N. S.) 56; Middleton v. Pollock, 
 2 Ch. D. 164; 45 L. J. (N. S.) Ch. 293; 
 Ex parte Games, 12 Ch. Div. 314; 
 Janes v. Whitbread, 11 0. B. 406. 
 
 *Preston v. Griffin, 1 Conn. 393; 
 Scott V. Winship, 20 Geo. 429; but 
 see Einstein v. Munnerlyn, 32 Fla. 
 381, 13 So. 926; Baylor v. Brown, 3 
 Tex. Civ. App. 177, 21 S. W. 731. 
 
 ^Borland v. Mayo, 8 Ala. 104. 
 
BADGES OF FRAUD. 
 
 36 
 
 § 48. Generalities. — Bolus versatur in generalibus is also 
 a recognized maxim of the law.^ Tlie presence of compre- 
 hensive generalities in a deed without any particular speci- 
 fications is a badge of fraud.^ Men engaged in real 
 transactions do not commonly deal so loosely. A real pur- 
 chaser is seldom content with anything short of a precise 
 and unequivocal description. 
 
 § 49. Embarrassment. — As every transfer by a debtor 
 tends to diminish the fund from which payment can be en- 
 forced, embarrassment and heavy indebtedness are badges 
 of fraud.^ Indebtedness alone does not, however, deprive 
 a debtor of his dominion over his property. It is merely 
 
 iStone V. Grubham, 2 Bulst. 
 217, I Rol- Rep. 3- 
 
 2McCain v. Wood, 4 Ala. 258; 
 Duvall w. Waters, i Bland. 569, 11 
 G.&J. 37; 18 Am. Dec. 350; Delaware 
 w. Ensign, 21 Barb. 85; Gardner v. 
 McEwen, 19 N. Y. 123; Conkling v. 
 Shelley, 28 N. Y. 360; 84 Am. Dec. 
 348; Thompson v. Drake, 3 B. Mon. 
 565; Lang V. Lee, 3 Rand. 410. 
 
 SBorland v! Walker, 7 Ala. 269; 
 Borland v. Mayo, 8 Ala. 104; Over- 
 ton V. Morris, 3 Port. 249; Planters' 
 Bank v. Walker, 7 Ala. 926; Shep- 
 pard V. Iverson, 12 Ala. 97; Ring- 
 gold V. Waggoner, 14 Ark. 69; Cox 
 V. Fraley, 26 Ark. 20; Kinder v. 
 Macy, 7 Calif. 206; Purkitt v. Pol- 
 ack, 17 Calif. 327; Sukeforth v. 
 Lord, 87 Calif. 399; 25 Pac. 497; 
 Sutton v. Dana, 15 Cplo. 98, 25 Pac. 
 90; Barrow v. Bailey, 5 Fla. 9; 
 Chappell w. Claj T 29 la. 161; Glenn 
 V. Glenn, 17 la. 498; Sweet v. 
 Wrght, 57 la. 510, 10 N. W. 870; 
 RoUins V. Mooers, 25 Me. 192; 
 Blodgett V. Chaplin, 48 Me. 322; 
 Hartshorne v. Eames, 31 Me. 93; 
 Duvall V. Waters, 11 G. and J. 37; 
 I Bland. 569; 18 Am. Dec. 350; 
 Richards v. Swan, 7 Gill 366; 2 Md. 
 Ch. Ill; McNeil v. Glenn, 4 Md. 87, 
 
 3 Md. Ch. 349; Comstock v. Rayford, 
 20 Miss. 369, 9 Miss. 423, 40 Am. Dec. 
 102; Dick V. Grissom, i Freem. Ch. 
 (Miss.) 428; Pope zz-Andrews,! S. and 
 M. Ch. 351; Rochellez/. Grimes, 22 
 Neb. 526; 35 N. W. 392; Say re v. 
 Fredericks, 16 N. J. Eq. 205; Jack- 
 son V. Mather, 7 Cow. 301; Merrill 
 V. Locke, 41 N. H. 486; Satterwhite 
 V. Hicks, Busb. 105; 57 Am. Dec. 
 577; Darden v. Skinner, 2 N. C. L. 
 R. 279; Clark v. Depew, 25 Penn. 
 509; 64 Am. Dec. 717; Baker v. 
 Bibb, 17 B. Mon. 292; Tubb v. Wil- 
 liams, 7 Humph. 367; Gibbs v. 
 Thompson, 7 Humph. 179; Dunlap 
 V. Haynes, 4 Heisk. 476; Harrison 
 p. Campbell, 6 Dana 263; Beeler v. 
 Bullitt, 3 A. K. Marsh. 280; 13 Am. 
 Dec. 161; Enders v. Swayne, 8 
 Dana 103; McConnell v. Brown, 
 Litt. Sel. Cases 459; Parrish v. Dan- 
 ford, I Bond 345; Bulkley v. Buff- 
 ington, 5 McLean, 457; Walqott v. 
 Almy, 6 McLean 23; Phettiplace v. 
 Sayles, 4 Mason 312; McRea v. 
 Branch Bank, 19 How. 376; Hud- 
 gins V. Kemp, 20 How. 45; Callan 
 V. Statham, 23 How. 477; Durkee v. 
 Mahoney, i Aik. 116; Tavenuer v. 
 Robinson, 2 Rob. 280; Banner v. 
 May, 2 Wash. St. 221; 26 Pac. 248. 
 
36 
 
 BADGES OF FRAUD. 
 
 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.^ In order to affect a ven- 
 dee, however, the indebtedness must be known to him. 
 Vendors generally are indebted, and if sales by an insol- 
 vent were void, a vendee would be compelled to obtain an 
 abstract of his vendor's circumstances as well as of his title.^ 
 
 § 50. Pendency of Suit. — The expectation^ or pendency of 
 a suit is a badge of fraud, because a transfer tends to 
 deprive the creditor of the means of enforcing his judgment 
 when he obtains it.'* If an attorney who holds a claim for 
 collection is induced to delay the institution of a suit at the 
 
 Allen V. Kennedj-, 49 Wis. 549, 5 N. 
 W. 906. 
 
 But the mere fact of indebted- 
 ness will not invalidate the trans- 
 fer. Wood V. Franks, 67 Cal. 32, 
 7 Pac. 50; Sanger v. Colbert, 84 
 Tex. 668, 19 S. W. 863; Willis v. 
 Whitsitt, 67 Tex. 673, 4 S. W. 253. 
 IGlenn v. Glenn, 17 Iowa, 498; 
 Crawford v. Kirksey, 50 Ala. 591; 
 Wake V. Griffin, 9 Neb. 47; 2 N. W. 
 461; Pervel v. Merritt, 70 Mo. 275; 
 Apperson v. Burgett, 33 Ark. 328. 
 
 ^Copis V. Middleton, 2 Madd. 
 410; Scheitlin v. Stone, 3 Barb. 
 634; s.. c. 29 How. Pr. 355; Fuller v. 
 Brewster, 53 Md. 358; Dodd v. 
 Gaines, 82 Tex. 429, 18 S. W. 618; 
 Tillman v. Heller, 78 Tex. 597, 14 
 S. W. 700. 
 
 But a knowledge of facts sufficient 
 to put a prudent man on his guard is 
 sufficient. Dyer v. Taylor, 50 Ark. 
 314, 7 S. W. 258; Dodd V. Gaines, 
 82 Tex. 429, 18 S. W. 618. 
 
 But contra, State v. Mason, 112 
 Mo. 374, 20 S. W. 629, 34 Am. St. 
 Rep. 390. And see sections 183, 184, 
 187, 188, post 
 
 SGlenn z'. Glenn, 17 la. 498; 
 Mitchell V. Mitchell, 42 S. C. 475, 
 481, 20 S. E. 405. 
 
 *Twyne's Case, 3 Co. 80, Moore 
 638; PauUing v. Sturgis, 3 Stew. 
 95; Overton v. Morris, 3 Port. 249; 
 Sheppard v. Iverson, 12 Ala. 97; 
 Leach v. Fowler, 22 Ark. 143; 
 Gamble v. Harris, 5 Del. Ch. 512; 
 Peck V. Land, 2 Ga. i ; Colquitt v. 
 Thomas, 8 Ga. 258; Fishel v. Ire- 
 land, 52 Ga. 632; Booker v. Wor- 
 rill, 57 Ga. 235; Thornton v. Dav- 
 enport, 2 111. 296; Eads V. Thomp- 
 son, 109 111. 87; Adams v. Sater, ig 
 Ind. 418; Lowry v. Howard, 35 
 Ind. 170; Sherman v. Hogland, 73 
 Ind. 472; Lillard v. McGee, 4 Bibb 
 165; Beeler v. Bullitt, 3 A. K. 
 Marsh. 280, 13 Am. Dec. 161; Harts- 
 horne v. Eames, 31 Me. 93; Schaef- 
 erman v. O'Brien, 28 Md. 565; 92 Am. 
 Dec. 708; Fairbairn v. Middlemiss, 
 47 Mich. 372; II N. W. 203; Steele 
 V. Parsons, 9 Mo. 823; Hisey v. Good- 
 win, 90 Mo. 366, 2 S. W. 566; Johns- 
 ton V. Dick, 27 Miss. 277; Atkins v. 
 Atkins, 18 Neb. 474, 25 N. W. 724; 
 Merrill if. Locke, 41 N. H. 486; 
 Soden v. Soden, 34 N. J. Eq. 115; 
 Moore v. Roe, 35 N. J. Eq. 90; Wil- 
 liams V. "^owndes, i Hall 579; Stod- 
 dard V. Butler, 20 Wend. 507, 7 
 Paige 163; Jackson v. Mather, 7 
 Cow. 301; Ford zi. Johnson, 14 N. Y. 
 
BADGER OF FRAUD. 
 
 37 
 
 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.^ The pen- 
 dency of a suit, however, is merely a badge of fraud. A trans- 
 fer may be shown to have been fraudulent, although it was 
 made when no suit was pending.^ 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.^ The 
 pendency of a suit is not constructive notice of the indebted- 
 ness to those who are not parties to the action.* 
 
 Supr. 563; Salter white v. Hicks, 
 Busbee 105; 57 Am. Dec. 577; Barr v. 
 Hatch, 3 Oh. 527; Stewart v. Wilson, 
 42 Penn. 450; Clark v. Depew, 25 
 Pena. 509; 64 Am. Dec. 717; Red- 
 field V. Dysart, 62 Penn. 62; Babb v. 
 Clemson, 10 S. and R. 419, 13 Am. 
 Dec.684; Streeperz;. Bckart, 2Whart. 
 302, 30 Am. Dec. 258; Forsyth v. 
 Matthews, 14 Penn. 100; 53 Am. 
 Dec. 522; Smith v. Henry, 2 Bailey 
 118, I Hill 16; Carter v. Baker, 10 
 Heisk 640; Thompson v. Drake, 3 
 B. Mon. 565; Yoder v. Standiford, 7 
 Mon. 478; Gibson v. Hill, 23 Tex. 77; 
 Howard v. Crawford, 21 Tex. 399; 
 Shearon v. Henderson, 38 Tex. 245; 
 Hughes V. Roper, 42 Tex. 116; 
 Smith V. N. Y. Life Ins. Co., 57 Fed. 
 133; Bean v. Smith, 2 Mason 252; 
 Venable v. Bank, 2 Pet. 107; Cal- 
 lan V. Statham, 23 How. 477; 
 U. S. V. Lottridge, i Mclyean, 246; 
 Dent V. Ferguson, 132 U. S. 50; 
 10 S. Ct. 13; Garland v. Rives, 4 
 Rand. 282, 15 Am. Dec. 756; Godfrey 
 V. Germain, 24 Wis. 410 ; Low v. 
 Wortman, 44 N. J. Eq. 193; 7 Atl. 
 654; 14 Atl. 586; citing this section. 
 Green v. Brand, Times Rep. (1884) 
 79; Mx parte Games, 12 Ch. Div. 
 314; Boldero v. London and West- 
 minster Loan and Discount Co. 5 
 Ex. D. 47; 28 W. R. 154; 42 L. T. 
 (N. S.) 56; Spencer v. Slater, 4 Q. 
 
 B. D. 13; 48 L. J. (N. S.) Ch. 480; 
 Bott V. Smith, 21 Beav. 511; Self v. 
 Maddox, 1 Vern. 459 ; King v. 
 Marissal, 3 Atk. 192; Partridge v. 
 Gopp, 2 Amb. 596; Barling v. 
 Bishopp, 2g Beav. 417; Crossley v. 
 Elworthy, L. R. 12 Eq. 158 ; Reese 
 River Silver Mining Co. v. Atwell 
 L. R. 7 Eq. 347; 17 W. R. 601; 20 
 L. T. (N. S.) 163. 
 
 And where grantor's insolvency 
 is the effect of a voluntary convey- 
 ance made after the commission of 
 a tort it may be inferred that the 
 object of the transfer was the hind- 
 rance of the person injured in the 
 collection of any amount he might 
 thereafter recover as damages for 
 the tort. Fuller v. Brown, 76 Hun. 
 557, 28 N. Y. Supp. 189. But see 
 Bank of Commerce v. Schlotfeldt, 
 40 Neb. 212, 58 N. W. 727; Kuhn v. 
 Gustafson, 73 la. 633, 35 N. W. 660; 
 Ex parte Mercer, 17 Q. B.,D. 29D, 
 54 L. T. (N. S.) 720. 
 
 iMorris Canal Co. v. Stearns, 23 
 N.J. Eq. 414. 
 
 SShean v. Shay, 42 Ind. 375, 13 
 Am. Rep. 366. 
 
 3Ray v. Brown, 2 Blackf. 258; 
 Lowry V. Howard, 35 Ind. 170, 9 
 Am. Rep. 676; Smith v. Henry, 2 
 Bailey 118, i Hill 16; Sipe v. Ear- 
 man, 26 Gratt, 563. 
 ^Shearon z/. Henderson, 38 Tex.245. 
 
38 
 
 BADGES OF FRAUD. 
 
 § 61. 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.^ The 
 secrecy which constitutes a badge of fraud is not, how- 
 ever, a mere want of notoriety, but a concealment or an at- 
 tempted concealment.^ It is not, moreover, conclusive 
 proof, but merely a circumstance from which, in connec- 
 tion with other facts, fraud may be inferred.^ Conse- 
 quently an agreement by a vendee to conceal his purchase 
 is merely evidence of fraud.* The declaration of an inten- 
 tion to make an assignment may produce the mischief 
 which the assignment is intended to prevent, and secrecy 
 may therefore be used.^ 
 
 § 52. 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.^ In 
 such a case the use that is made of it relates back, and 
 shows the intent with which it was made.^ The omission 
 
 ITwyne's case, 3 Co. 80, Moore 
 638; Seals V. Robinson, 75 Ala. 363; 
 Innis V. Carpenter ,4 Colo. App. 30, 
 34Pac. loi I ; Barrow ». Bailey, sFla. 
 9; Robinson v. Woodmansee, 80 Ga. 
 249; 4S. E.497; James z/. Johnson, 22 
 La. Ann. 195; Ross v. Crutsinger, 7 
 Mo. 24s; King V. Moon, 42 Mo. 551; 
 Mcl/achlan v. Wright, 3 Wend. 348; 
 Burtis V. Tisdall, 4 Barb. 571; Dela- 
 ware V. Ensign, 21 Barb. 85; Darden 
 V. Skinner, 2 N.C. I/. R. 279; Peebles 
 V. Horton, 64N. C. 374; Vick v. Keys, 
 2 Hayw. 126; Reiger v. Davis, 67 N. 
 C. 185; Shiveley z/. Jones 6 B. Mon. 
 274; Warner z;. Norton, 20 How. 448; 
 Callan v. Statham, 23 How. 477; Cor- 
 lett V. Radcliff, 14 Moore P. C. 121; 
 Stone V. Grubham, 2 Bulst. 217, i 
 Rol. Rep. 3; Woodham v. Baldock, 
 Gow. 35, note, 3 Moore 11; Leonard 
 V. Baker, i Man. and S. 251; Part- 
 ridge V. Gopp, -^ Amb. 596; Latimer 
 V. Batson, 4 B. and C. 652; Ryall v. 
 Rolle, I Atk. 165, S. C. i Ves. 348; 
 
 Kidd V. Rawlinson, B. and P. 59. 
 But see Davis v. Schwartz, 155 U. S. 
 631; 15 S. Ct. 237; Stewart v. Mills 
 Co. Nat. Bank, 76 la. 571, 41 N. W. 
 318. 
 
 2Vick V. Keys, 2 Hayw. 126. 
 
 SStone V. Grubham, Bulst. 217; S. 
 c. I Rol. Rep. 3; Warner v. Norton, 
 20 How. 448, 
 
 ^Gonld V. Ward, 21 Mass. 103; S. 
 c. 22 Mass. 291. 
 
 6Haven v. Richardson, 5 N.H. 113. 
 
 6Hungerford v. Earle, 2 Vern, 
 261; Sands v. Hildreth, 2 Johns. 
 Ch. 35; s. c. 14 Johns. 493; Lewk- 
 ner v. Freeman, 2 Freem. 236; s. c. 
 Prec. Ch. 105; s. c. Eq. Cas. Abr. 
 149; Hilderburn v. Brown, 17 B. 
 Mon. 779; Tarback v. Marbury, 2 
 Vern. 510; Scrivenor v. Scrivenor, 
 7 B. Mon. 374. 
 
 7Worseley v. De Mattos, i Burr. 
 467; Constantine v. Twelves, 29 
 Ala. 607; Mc Williams v. Rodgers, 
 56 Ala. 87. 
 
BADGES OF FRAUD. 
 
 39 
 
 to place a deed on record,^ or leaving it in the hands of 
 
 ICoates V. Gerlach, 44 Penn. 43; 
 Hood V. Brown, 2 Ohio 267; Scriv- 
 enor v. Scrivener, 7 B. Mon. 374; 
 Law V. Smith, 4 Ind. 56; Hodges v. 
 Blount, I Hayw. 414, 1 Am. Dec. 563; 
 Bank of U. S. v. Houseman, 6 
 Paige, 526; Bank v. Gourdin, 
 Speer's Ch. 439; Gaither v. Mum- 
 ford, I N. C. T. R. 167; Beecher v. 
 Clark, 10 N. B. R. 385; s. C. 12 
 Blatch, 256; Folsom v. Clemence, 
 III 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. Fea- 
 gin, 60 Geo. 82; Van Kleeck v. Mil- 
 ler 19 N. B. R. 484; I,ehmau, Durr 
 and Co. v. Van Winkle, 92 Ala. 443, 8 
 So. 870; McDermott v. Eborn, 90 
 Ala. 258, 7 So. 751; Robertson v. 
 Burden, 89 Ala. 500, 7 So. 769; 
 O'Doherty v. Toole, Ariz. 15 Pac. 
 28; Stockgrowers' Bank v. Newton, 
 13 Colo. 245, 22 Pac. 444; Farguson 
 V. Johnston, 36 Fed. 134; GoU and 
 Frank Co. v. Miller, 87 la. 426, 54 
 N. W. 443; Tyler v. Tyler, 126 111. 
 525, 21 N. E. 616; Hutchinson v. 
 First National Bank, 133 Ind. 271, 
 30 N. E. 952; Wafer v. Harvey 
 County Bank, 46 Kans. 597, 26 
 Pac. 1032; Fetters v. Duvernois, 
 73 Mich. 481, 41 N. W. 514; Klein 
 V. Richardson, 64 Miss. 41, 8 So. 
 204; Day V. Goodbar, 69 Miss. 
 687, 12 So. 30; Central Nat. Bank 
 V. Doran, 109 Mo. 40, 18 S. W. 
 836; State Savings Bank v. Buck, 
 123 Mo. 141, 27 S. W. 431; Baker v. 
 Pottle, 48 Minn. 479, 51 N. W. 383; 
 Steele v. Coon, 27 Neb. 586, 43 N. 
 W. 411; Brown v. Mitchell, 102 N. 
 C. 347, 9 S. E. 702; Davis S. M. Co. 
 V. Dunbar, 29 W. Va. 617, 2 S. E. 
 91; Curtis V. Isaacsen, 36 W. Va. 
 391, 15 S. E. 171; Bates v. Cobb, 29 
 S. C. 395, 7 S. E. 743; Cahn- v. 
 Farmers and Traders' Bank, S. D. 
 
 46 N. W. 185. 
 
 But if there is no agreement, ex- 
 press or implied,between the grantor 
 and grantee that the deed shall not 
 be recorded, the mere fact that the 
 grantee fails to file it for record 
 raises no presumption of fraud. 
 
 First Nat. Bank v. Jaffray, 41 
 Kans.' 694, 21 Pac. 242; Field v. 
 Ridgeley, 116 111. 424, 6 N. E. 156; 
 State Sav. Bank v. Buck, 123 Mo. 
 141, 27 S. W. 431. And see Sec- 
 ond Nat. Bank v. Merrill and 
 Houston Iron Works, 81 Wis. 142, 
 50 N. W. 503; Hutchinson v. Bank, 
 133 Ind. 271, 30 N. B. 952; Blish 
 V. Collins, 68 Mich. 542, 36 N. W. 
 731; Klein v. Richardson, 64 Miss. 
 41, 8 So. 204; Nadal v. Britten, 
 1.12 N. C. 180, 16 S. E. 914; Blanks 
 'v. Klein, 2 U. S. App. 363, 53 Fid. 
 436; W. O. Tyler Paper Co., v. Or- 
 cutt-Killick Lithographing Co., 35 
 111. App. 500, where an unrecorded 
 mortgage was upheld notwith- 
 standing an agreement to keep it 
 
 off the record. 
 But see Talcott v. Crippen, 52 
 
 Mich. 633, 18 N. W. 392. 
 
 Concealment of judgment notes 
 held not fraudulent. Field v. 
 Ridegely, 116 111. 424, 6 N. E. 156; 
 Hegeler v. First Nat. Bank, 129 111. 
 157, 21 N. E. 812. 
 
 The presumption of fraud arising 
 from failure to record a conveyance 
 is rebutted by proof that grantee 
 was a non-resident and ignorant 
 that the law required registration. 
 
 Tryon v. Flournoy, 80 Ala. 321. 
 
 That grantee intended to with- 
 hold a deed from record, but on the 
 advice of his attorney did record 
 it, raises no presumption of fraud. 
 
 Danner Land and Lumbpr Co. v. 
 Stonewall Ins. Co., 77 Ala. 184. 
 
 And the fact that a voluntary 
 deed was promptly recorded does 
 
40 
 
 BADGES OF FRAUD. 
 
 the grantor,' or placing it in the hands of a third person 
 to be produced or suppressed accordingly as exigencies 
 may demand,^ are instances of secrecy that are within the 
 rule. If secrecy is a part of the consideration for securi- 
 ties 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.^ 
 
 § 53. 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 as between the grantor and the 
 
 not show absence of fraud. Carver 
 V. Barker, 73 Hun 416, 26 N. Y. 
 Supp. 919. 
 
 lEveleigh v. Pursford, 2 Mood. & 
 Rob. 539. 
 
 2Brown v. McDonald, i Hill Ch. 
 297; Lasher z/. Stafford, 30 Mich. 369. 
 
 SHafner v. Irwin, i Ired. 490. 
 
 4Keel V. Larkin, 83 Ala. 142; Lar- 
 kin V. Mead, 77 Ala. 485; First Nat. 
 Bank v. Comfort, 4 Dak. 167, 28 N. 
 W. 855; Blythe v.. Thomas, 45 Fed. 
 784; Bostwick V. Blake, 145 111. 85, 34 
 N. B. 38; Tyler v. Tyler, 126 111. 525; 
 21 N. E. 616: Blackman v. Preston, 
 123 111. 381; 15 N. B. 42; Mitchell v. 
 Sawyer, 115 111. 650, 5 N. B. 109; Gor- 
 don V. Reynolds, 114 111. 118, 28 N. B. 
 455; Plunkett V. Plunkett. 114 Ind. 
 484, 16 N. E. 612, 17 N. B. 562; Fuller 
 V. Griffith, la., 60 N. Jf. 247; Scheble 
 z-. Jordan, 30 Kans. 353, i Pac. 121; 
 Gross V. Bddinger, 85 Ky. 168, 3 S. 
 W. i; Hoffman v. Gosnell, 75 Md. 
 577> 24 Atl. 28; Plimpton v. Goodell, 
 143 Mass. 365, 9 N. B. 791; Mun- 
 son V. Arnold, 55 Mich. 134, 20 N. 
 W. 825; Smith V. Conkwright, 28 
 Minn. 23, 8 N. W. 876; Molaska 
 Mfg. Co. V. Steele, 36 Mo. App. 496; 
 State V. McBride, 105 Mo. 265, 15 S. 
 W. 72; Allison V. Hagan, 12 Nev. 38; 
 Gillespie v. Cooper, 36 Neb. 775, 55 
 
 N. W. 302; Decker v. Wilson, 45 N. 
 J. Bq. 772, 18 Atl. 843; Ivow V. Wort- 
 man, 44 N. J. Bq. 193, 7 Atl. 654, 14 
 Atl. 586; Scott V. Hartman, 11 C. B. 
 Green 89; Newman v. Van Duyne, 42 
 N. J. Bq. 485, 7 Atl. 897; Sayre v. 
 Fredericks, i C. E. Green 205; Foster 
 V. Knowles, 42 N. J. Bq. 226; 7 Atl. 
 290; Victor V. Levy, 72 Hun. 263, 
 25 N. Y. Supp 644; Clement v. 
 Cozart, 109 N. C. 173, 13 vS. E. 862; 
 Newell V. Wagness, i N. D. 62, 44 
 N. W. 1014. 
 
 But a secret trust in favor of gran- 
 tor's wife is not fraudulent when 
 the consideration for the transfer is 
 a bona fide debt. Smith v. Riggs, 
 56 Iowa 488; 8 N. W. 479; 9 N. W. 
 385. 
 
 The fact that a mortgage was exe- 
 cuted in pursuance of a prior oval 
 agreement that mortgagor should 
 give mortgagee security when he 
 should demand it, is a badge of 
 fraud. Marquise v. Felsenthal, 58 
 Ark. 293, 24 S. W. 493; 
 
 As to what constitutes a secret 
 trust see cases above cited and Ed- 
 gerly V. First Nat. Bank, 30 111. App. 
 425; Stroff V. Swafford, 81 Iowa 695; 
 47 N. W. 1023; Dean v. Skinner, 42 
 Iowa 318; Macomber v. Peck, 39 
 Iowa 351. 
 
BADGES OF FRAUD. 4l 
 
 grantee, is in truth as to all the creditors a fraud, for they 
 are thereby defeated and defrauded.'^ 
 
 § 54. False Recitals. — An instrument which misrepresents 
 the transaction that it recites is evidence of a secret trust, 
 and is calculated to mislead and to deceive creditors.^ 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, howeverj and often do, hap- 
 pen through mistake or carelessness, and for this reason 
 are not conclusive evidence of fraud.* In order to be con- 
 clusive, there must be intentional disguise, dissembling, or 
 falsehood.' When, however, the true character and con- 
 sideration of a transaction are not fairly and plainly stated, 
 the instrument is open to suspicion, and the question arises 
 whether, in misrepresenting the transaction, there was not 
 a design to mislead and deceive creditors;^ but if, upon in- 
 vestigation, the real transaction appears to be fair, though 
 somewhat different from that which is described, it will be 
 valid.^ 
 
 § 55. Absolute Deeds as Security.— Taking an absolute 
 deed as security for money is a badge of fraud, for it is 
 calculated to deceive creditors and to make them believe 
 that no part of the property is subject to their demands 
 when in fact it is otherwise.® The right to redeem is an 
 
 ITwyne's Case, 3 Co. 80; Moore, ^Fetter v. Cirode, 4 B. Mon. 482. 
 
 638; Shaffer v. Watkins, 7 W. & S. Merely erroneous recitals as to the 
 
 219; McCulloch V. Hutchinson, 7 amount of the debt secured may be 
 
 Watts, 434, 32 Am. Dec. 776; explained. Magirl v. Magirl, la., 
 
 Robert v. Hodges, 16 N. J. Eq. 299. 56 N. W. 510; Schroeder v. Bobbitt, 
 
 2Kempner v. Churchill, 8 Wall. 108 Mo. 289, 18 S. W. 1093; Norris 
 
 362; Divver v. McLaughlin, 2 v. Lake, Va., 16 S. E. 663, 
 
 Wend. 596, 20 Am. Dec. 655; Rickett ^Barker v. French, 18 Vt. 460. 
 
 V. Pipkin, 64 Ala. 920; Summers v. SMcKinster v. Babcock, 26 N. Y. 
 
 Howland, 2 Baxter, 407. 378; Ingles v. Donaldson, 2 Hayw. 
 
 SRickett V. Pipkin, 64 Ala. 920; 57. 
 
 Lawson v. Ala. Warehouse Co., 80 7Shirras v. Craig, 7 Cranch, 34; 
 
 Ala. 341; Mason v. Franklin, 58 la. Goodheart v. Johnson, 88 111. 58. 
 
 506; 12 N. W. 554; Knight w. Capito, SCampbell v. Davis, 85 Ala. 56, 
 
 23 W. Va. 639; Rodenburg v. H. B. 4 So. 140; Hill v. Rutledge, 83 Ala. 
 
 Claflin Co., 16 So. 448 (Ala.) 162, 4 So. 135; Danner Land and 
 
42 
 
 BADGES OF FRAUD. 
 
 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 to 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.^ In this respect there is no 
 distinction between the conveyance of real and personal 
 estate.^ If, however, it appears that the grantee took an 
 
 Lumber Co. v. Stonewall Ins. Co., 
 77 Ala. 184; Tryou v. Flournoy, 80 
 Ala. 321; Ives v. Stone, 51 Conn. 
 446, Ross V. Duggan, 5 Colo. 85; 
 Innis V. Carpenter, 4 Colo. App. 
 30, 34 Pac. loii; Beidler v. Crane, 
 135 111. 92, 25 N. E. 655; Jones v. 
 Light, 86 Me. 437, 30 Atl. 71; Earn- 
 shaw V. Stewart, 64 Md. 513, 2 Atl. 
 734; Watkins v. Arms, 64 N. H. 99, 
 6 Atl. 92; Stratton v. Putney, 63 N. 
 H. 577, 4 Atl. 876; Smith v. Lowell, 
 6 N. H. 67; Clement v. Cozart, 109 
 N. C. 173, 13 S. E. 862; Gaither v. 
 Mumford, i N. C. T. R. 167; Ingles 
 v. Donaldson, 2 Hayw. 57. 
 
 IHarrison 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. Hinkley, 43 Me. 440; 
 Gibson v. Seymour, 4 Vt. 518; 
 Smith V. Onion, 19 Vt. 427; Rucker 
 V. Abell, 8 B. Mon. 566, 48 Am. Dec. 
 406; GafEney v. Signaigo, i Dillon 
 158; Gibbs V. Thompson, 7 Humph, 
 179; Bank v. Jacobs, 10 Mich. 349; 
 Chickering v. Hatch, 3 Summer, 
 474; Blair v. Bass. 4 Blackf . 539; In- 
 gles 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; 37 Am. Dec. 
 140; 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. Pennell, 67 Me. 159; 
 Gibson v. Hough, 60 Geo. 588; 
 Phinizy v. Clark, 62 Geo. 623; con- 
 tra, Winkley v. Hill, 9 N. H. 31; 
 Towle V. Hpitt, 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,ioN. H. 
 150; Boardman v. Cushing, 12 N. H. 
 105; McCulloch V. Hutchinson, 7 
 Watts,434; 32 Am. Dec. 776; Chenery 
 V. Palmer, 6 Cal. 119; King v. Can- 
 trel, 4 Ired. 251; Halcomb v. "Sja-y, i 
 Ired. 340; Gregory v. Perkins, 4 
 Dev. 50; Bryant v. Young, 21 Ala. 
 264; Hartshorn v. Williams, 31 Ala. 
 149; Hough V. Ives, i 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. Summer, 37 Mass. 
 399. Where it is held to be conclu- 
 sive it does not make the deed void 
 as against subsequent creditors. 
 Smyth V. Carlisle, 16 N. H. 664, s. 
 c. 17 N. H. 417. 
 
 ^Oriental Bank v. Haskins, 44 
 Mass. 332, 37 Am. Dec. 140. 
 
BADGES OP FRAUD. 
 
 43 
 
 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.i A mere agreement 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 .^ A note for an 
 absolute sum may be taken to cover a liability as surety.* 
 
 § 56. False Statement of Consideration. — A false state- 
 ment of the consideration for a transfer tends to de- 
 ceive creditors, and is a badge of fraud.* This is especially 
 true in regard to a mortgage. Any discrepancy between 
 the amount to be secured and that which ig in form set 
 forth as the debt of the mortgagor is a badge of fraud." 
 If the statement is intentionally false, it is an act of direct 
 
 IBarker v. French, i8 Vt. 460; 
 Harrison v. Phillips' Academy, 12 
 Mass. 456. 
 
 2phettiplace v. Sayles, 4 Mason 
 312; Barr v. Hatch, 3 Ohio 527; 
 Glenn v. Randafi, 2 Md. Ch. 220; 
 Anderson v. Fuller, i McMuUan 
 Ch. 27. 
 
 SPrescott V. Hayes, 43 N, H. 593. 
 
 *Proskauer v. People's Bank, 
 77 Ala. 257; McCaskle v. Amar- 
 ine, 12 Ala. 17; Goodheart v. John- 
 son, 88 111. 58; Speer v. Skinner, 35 
 111. 282; Enders v. Swayne, 8 Dana 
 103; Keith V. Proctor, 8 Baxter 189; 
 Minor v. Sheehan, 30 Minn. 419, 15 
 N. W, 687; Miller v. Lockwood, 32 
 N. Y. 293; McKinster v. Babcock, 
 26 N. Y. 378; Peebles v. Horton, 64 
 N. C. 374; McElfatrick v. Hicks, 21 
 Penn. 402; Foster v. Woodfin, 11 
 Ired. 339; Gibbs v. Thompson, 7 
 Humph. 179; Bumpas v. Dotson, 7 
 Humph. 310, 46 Am. Dec. 81; 
 Thompson v. Drake, 3 B. Mon. 565; 
 Turbeville v. Gibson, 5 Tenn. 565; 
 Shinas v. Craig, 7 Cranch 34; Ven- 
 able V. Bank, 2 Pet. 107; Kevan v. 
 Crawford, L. R. 6 Ch. Div. 29; 45 Iv. 
 J. (N. S.) Ch. 658. 
 
 BStover V. Herrington, 7 Ala. 142, 
 41 Am. Dec. 85; Ala. Ins. Co. v. Pett- 
 ■way, 24 Ala. 544; Weeden v. Hawes, 
 13 Conn. 50; Wooley v. Frey, 30 111. 
 158; Goff V. Rogers, 71 Ind. 459; 
 Wilson V. Horr, 15 la. 489; Daven- 
 port z/. Cummings, 15 la. 219; Mason 
 V. Franklin, 58 la. 506; 12 N. W. 
 554; Beeler v. Bullitt, 3 A. K. Marsh. 
 280, 13 Am. Dec. 161; McCrassley v. 
 Haslock, 4 Baxter i ; Parker v. Bar- 
 ker, 43 Mass. 423; Prince v. Shep- 
 pard, 26 Mass. 176; I/ynde v. Mc- 
 Gregor,- 95 Mass. 182, 90 Am. Dec. 
 188; Willison V. Desinberg,4i Mich. 
 156; 2 N. W. 201 ; King v. Hubbell, 42 
 Mich. 597; 4 N- W. 440; Cordes v. 
 Straszer, 8 Mo. App. 61; Foley v. 
 Foley, 14 N. J. Eq. 350; Schmidt v. 
 Opie, 33 N. J. Eq. 138; Holt v. 
 Creamer, 34 N.J. Eq. i8i; Heintze 
 V. Bentley, 34 N. J. Eq. 562; Miller 
 V. I^ockwood, 32 N. Y. 293; Bailey v. 
 Burton, 8 Wend. 339; Frost v. War- 
 ren, 42 N. Y. 204; Tripp V. Vincent, 8 
 Paige 176; Tognini v. Kyle, isNev. 
 464, 45 Am. Rep. 442; Thompson v. 
 Drake, 3 B. Mon. 565; Bumpas v. 
 Dotson, 7 Humph. 310, 46 Am. Dec. 
 81; Knight V. Capito, 23 W. Va. 639; 
 
44 BADGES OF FRAUD. 
 
 fraud, for no device is more deceptive, and more calculated 
 to baflSe, delay, or defeat creditors, than tlie creation of in- 
 cumbrances for debts that are fictitious, or mainly so.^ A 
 mortgage may, however, include debts due to others, which 
 the mortgagee at the titne gives his promise, whether by 
 parol or in writing, to pay.^ The taking of a judgment,* 
 or the issuing of an execution,* for more than is due, is not 
 per se fraudulent, but the validity of the judgment or exe- 
 cution depends on the intent of the parties. A false recital 
 of the payment of the consideration is a badge of fraud, but 
 the inference of fraud may be rebutted by proof that the con- 
 sideration was subsequently paid in good faith, in pur- 
 suance of the understanding of the parties at the time.^ 
 The antedating of an instrument is also a mark of fraud.® 
 
 § 57. 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.^ Inadequacy of price thus 
 tends to defraud them, and is a badge of fraud.® There is 
 
 Barkow v. Sanger, 47 "Wis. 500; 3 N. 96; Moog v. Benedicks, 49 Ala. 512. 
 W. 16; Rice V. Morner, 64 Wis. 599, ^Shelton v. Church, 38 Conn. 416; 
 
 25 N. W. 668; Kalk v. Fielding, 50 Rhoads v. Blatt, 84 Penn. 31. 
 Wis. 339; 7 N. W. 296; vide Butts v. 8"it is proper to observe here 
 
 Peacock, 23 Wis. 359. that the good faith of a purchaser 
 
 iHawkins v. Alston, 4 Ired. Eq. may be seriously impaired, if not 
 
 137; Marriott v. Givens, 8 Ala. 694. destroyed, by the inadequacy of the 
 
 ^Carpenter z/. Muren, 42 Barb. price at which the property is 
 
 300. offered by a person claiming to be 
 
 SClark V. Douglass, 62 Penn. 408; its owner." Ten Eyck v. Whitbeck, 
 
 Felton V. Wadsworth, 6i Mass. 587; 135 N. Y. 40-47, 31 N. E. 994; 
 
 Ayres v. Husted, 15 Conn. 504; Borland v. Mayo, 8 Ala. 104; Shep- 
 
 Shedd V. Bank, 32 Vt. 709; Daven- pard v. Iverson, 12 Ala. 97; Apper- 
 
 port V. Wright, 51 Penn. 292. son v. Burgett, 33 Ark. 328; McFad- 
 
 ^Wilder v. Pondey, 4 Wend. 100; den v. Mitchell, 54 Cal. 628; Kinder 
 
 Harrisz'. Alcock, loG. &J. 226, 32 v. Macy, 7 Cal, 206; Williams v. 
 
 Am. Dec. 158. Cheeseborough, 4 Conn. 356; St John 
 
 ^Alexander 17. Todd, i Bond, 175. v. Camp,, 17 Conn. 222; Shelton v. 
 
 eWright V. Hancock, 3 Munf. Church, 38 Conn. 416; Loring ®. 
 
 521; Jones V. Henry, 3 Uit. 427; Dunning, 16 Fla. 119; Williams v. 
 
 Lindle v. Neville, 13 S. & R. 227; Kelsey, 6 Ga. 365; Scott v. Winship, 
 
 Patterson v. Bodenhamer, 9 Ired. 20 Ga. 429; Steere v. Hoagland, 39 
 
BADGES OF FEAUD. 
 
 45 
 
 no rule of law as to what disparity between the real value 
 of property and the consideration paid will, in any case, 
 constitute inadequacy of price, but this must be ascertained 
 from the facts and circumstances of each particular case.^ 
 
 111. 264; Monell v. Sherrick, 54 111. 
 269; Merry v. Bostwick, 13 111. 398; 54 
 Am. Dec. 434; Bay z/.Cook, 31 111. 336; 
 Waterman v. Donalson, 43 111. 29; 
 Jewett V. Cook, 81 111. 260; Stevens 
 J/. Dillman, 86 111. 233; Hubbs v. 
 Bancroft, 4 Ind. 388; Bray v. Hus- 
 sey, 24 Ind. 228; Yoder v. Standi- 
 ford, 7 Mon. 478; Bowles v. Shoen- 
 berger, 2 B. Mon. 372; Trimble v. 
 Ratcliffe, 9 B. Men. 511; 12 B. Mon. 
 32; Dodson V. Cooper, 50 Kans. 680, 
 32 Pac. 370; Freiburg v. Langfelder, 
 La., 15 So. 677; Gardiner Bank v. 
 Wheaton, 8 Me. 373; Motley z/. Saw- 
 yer, 38 Me. 68; Jones v. Light, 86 Me. 
 437, 30 Atl. 71; Parser v. Barker, 2 
 Met. 423; Burke v. Murpby, 27 Miss. 
 167; Roach z/. Deering, 17 Miss. 316; 
 Stanton v. Green, 34 Miss. 576; Fos- 
 ter V. Pugh, 20 Miss. 416; Ames v. 
 Gilmore, 59 Mo. 537; Wells v. 
 Thomas, 10 Mo. 237; Benne v. 
 Schnecko, 100 Mo. 250, 13 S. W. 82; 
 State z/. Mason, 112 Mo. 374, 20 S. W. 
 629; 34 Am. St. Rep. 390; State v. 
 Durant, 53 Mo. App. 493; Doughton 
 V. Gray, 10 N. J. Eq. 323; Met. Bank 
 V. Durant, 22 N. J. Eq. 35; Morris 
 Canal Co. v. Sterns, 23 N. J. Eq. 414; 
 Hobokeu Bankz/. Beekman, 33 N.J. 
 Eq. 53; Strieby v. Clinton Hill Co., 
 N. J. Ch., 29 Atl. 589; Sands v. Hil- 
 dreth, 14 Jolins 493, 2 Johns Ch. 35; 
 Delaware v. Ensign, 21 Barb. 85; 
 Crary v. Sprague, 12 Wend. 41, 27 
 Am. Dec. no; Jaeger v. Kelley, 44 
 How. Pr. 122, 52 N. Y. 274; Laidlow 
 V. Gilmore, 47 How. Pr. 67; Sand- 
 man V. Seaman, 32 N. Y. Supp. 
 338; Darden v. Skinner, 2 N. C. 
 L.R. 279; Jessup V. Johnson, 3 Jones 
 {N. C.) 335, 67 Am. Dec. 243; Brown 
 V. Mitchell, 102 N. C. 347; 9 S. 
 
 E. 702; Shober v. Wheeler, 113 N. 
 C. 370, 18 S. E. 328; Scoggin v. 
 Schloath, 15 Ore. 380, 15 Pac. 635; 
 Hamet v. Dundass, 4 Penn. 178; 
 Craver v. Miller, 65 Penn. 456; 
 Roche V. Hassard, 5 Ir. Ch. 14; 
 Mitchell V. Mitchell, 42 S. 0. 475, 
 20 S. E. 405; Tubb V. Williams, 7 
 Humph. 367; Dunlap v. Haynes, 4 
 Heisk. 476; Hartfield v. Simmons, 
 12 Heisk. 253; Ellis v. Valentine, 
 65 Tex. 532; Gibson v. Hill, 23 Tex. 
 77; Brown v. Cactus Hedge Co., 64 
 Tex. 396; Wright v. Stannard, 2 
 Brock. 311; Jacobs v. Totty, 76 Tex. 
 343; 13 S. W. 372; Hudgins v. Kemp, 
 20 How. 45; Callam v. Statham, 23 
 How. 477; Hyde v. Sontag, i Saw. 
 249; Peigne v. Snowden, i Dessau, 
 591; Kempner w. Churchill, 8 Wall. 
 362; Smith V. N. Y. Life Ins. Co., 57 
 Fed. 133; Blow V. Maynard, 2 Leigh 
 29; Taylor v. Moore, 2 Rand. 563; 
 Williamson v. Goodwyn, 9 Gratt. 
 503; Tavener v. Robinson, 2 Rob. 
 280; Haney v. Nugent, 13 Wis. 283; 
 Fisher v. Shelver, 53 Wis. 498; 10 
 N. W. 68 r; Sommermeyer v. Som- 
 mermeyer. Wis., 61 N. W. 311; Bays- 
 poole V. Collins, L. R. 6 Ch. 
 232; Strong V. Strong, 18 Beav. 408. 
 But in honest family settlements 
 inadequacy of consideration is not 
 a badge of fraud. In re Johnston, 
 20 Ch. D. 387; Marshall v. Croon, 
 52 Ala. 554; Holden v. Burnham, 
 63 N. Y. 474; Clark v. Malpas, 31 
 Beav. 80; 10 W. R. 613-677; Baker 
 V. Monk, 33 Beav.'4i9. And a slight 
 and unimportant discrepancy will 
 not render a sale fraudulent. Davis 
 V. Beeson, 77 Tex. 604, 14 S. W. 198. 
 IBarrow v. Bailey, 5 Fla. g; Jae- 
 ger V. Kelley, 52 N. Y. 274; 44 How. 
 
46 BADGES OF FRAUD. 
 
 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.i 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.^ 
 A fictitious consideration created by a purchase of articles 
 at high prices from the vendee is not sufficient.* The 
 pressure of circumstances may, however, compel a debtor 
 to sell his property at a sacrifice, for the purpose of meet- 
 ing his liabilities, and in such instances a sale for less than 
 the real value is not unusual, and does not indicate an im- 
 pure intention.* 
 
 § 58. 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 to 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, the 
 existence of that excess is therefore a circumstance of fraud.^ 
 
 Pr. 122; Day v. Cole, 44 Iowa, 452; Sfiarrow v. Bailey, 5 Fla. 9; Sea- 
 Van Wyck V. Baker, 23 N. Y. Supr. man v. White, 8 Ala. 656; Bozman 
 68. V. Draughan, 3 Stew. 243; Bryant 
 iFeigley v. Feigley, 7 Md. 537; v. Kelton, i Tex. 415; Kuykendall 
 Kempner z/. Churchill, 8 Wall. 362; v. McDonald, 15 Mo. 416, 57 Am. 
 Copis V. Middleton, 2 Madd. 410; Dec. 212; State v. Evans, 38 Mo. 
 Ratcliffe z;. Trimble, 12 B. Mon. 32; 150. 
 
 Borland v. Mayo, 8 Ala. 104; Pros- 3Reed v. Carl, 11 Miss 74. 
 
 ser V. Henderson, 11 Ala. 484; Hoot *Hubbs v. Bancroft, 4 Ind. 388; 
 
 V. Sorrell, 11 Ala. 386; Jamison v. Hale v. Saloon Omnibus Co., 4 
 
 King, 50 Cal. 132; Hunt v. Hoover, Drew 492, s. C. 28 L. J. Ch. 777. 
 
 34 Iowa, 77; Wilson v. Jordan, 3 SBailey v. Burton, 8 Wend. 339; 
 
 Woods, 642; Fuller v. Brewster, 53 Hawkins v. AUston, 4 Ired. Eq. 137; 
 
 Md. 358; Kaufman v. Whitney, 50 Adams v. Wheeler, 27 Mass. 199; 
 
 Miss. 103. Bennett v. Union Bank, 5 Humph. 
 
BADGES OF FRAUD. 47 
 
 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 to baffle his 
 creditors. Hence the question is always one of intention.^ 
 
 § 59. Duration of Mortgage.— The time which a mortgage 
 has to run is a circumstance to be taken into consideration 
 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 be- 
 yond the amount of the debt secured, the period of indul- 
 gence to the debtor is important to the creditors, because to 
 the surplus beyond the mortgagees claims they must look 
 for the satisfaction of their demands. The evidence of a 
 fraudulent purpose is greater in proportion as the excess in 
 value is increased, and the time of indulgence prolonged.^ 
 
 § 60. TJnusual 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 hindrance and 
 delay within the meaning of the statute. A sale of the debt- 
 or's property upon a long and unusual credit has a tendency 
 to delay and hinder creditors, by interposing a legal title 
 
 612; Mitchell V. Beal, 8 Yerg. 134, Montgomery v. Kirksey, 26 Ala. 
 
 29 Am. Dec. 108; Wright v Han- 172; Wiley v. Knight, 27 Ala. 336; 
 
 cock, 3 Munf. 521; Ford z'. Williams, Davis v. Ransom, 18 111. 396; Brin- 
 
 13 N. Y. 577, 24 N. Y. 359, 67 Am. ley v. Spring, 7 Me. 241; Farmers' 
 
 Dec. 83; Davis v. Ransom, 18 111. Bank v. Douglas, 19 Miss. 469 ; 
 
 396; Jewett &. Warren, 12 Mass. 300, Henderson v. Downing, 24 Miss. 
 
 7 Am. Dec. 74 ; Hickman v. Perrin, 106; Potter v. McDowell, 31 Mo. 
 
 6 Cold. 135; Strohm v. Hayes, 70 62; Eigelow v. Stringer, 40 Mo. 
 
 111. 41; Crapeter v. Williams, 21 195; Bennett v. Union Bank, 5 
 
 Kans. 109; vide Downs v. Kissam, Humph. 612; Mitchell v. Beal, 8 
 
 ID How. 102. Yerg. 134, 29 Am. Dec. 108; Roane 
 
 IBurgin v. Burgin, i Ired. 453. v. Bank, i Head. 526; Lewis v. 
 
 ^Reynolds v. Crook, 31 Ala. 634; Caperton, 8 Gratt. 148. 
 
48 
 
 BADGES OF FRAUD. 
 
 between them and his estate, and compelling them to wait 
 for the expiration of the term of credit, and consequently 
 such a sale is a badge of fraud.^ A sale upon credit may 
 be good, for there is no principle of the law that prevents a 
 debtor from selling on credit, if thereby he is able to obtain 
 a better price ; ^ but if the debtor is insolvent, and his 
 intent is to force his creditors to accept notes drawn for a 
 long time, or to keep them at bay until the time of credit 
 expires, the purpose is fraudulent.^ This is especially true 
 when the sale is not in continuation of the debtor's busi- 
 ness, with an honest effort to retrieve his fortunes, but is 
 made as an abandonment of his business, and a relinquish- 
 ment of all hope of future success.* 
 
 § 61. 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 the presumption of 
 a secret trust for the ease and favor of the debtor.^ It is 
 
 IBorland v. Mayo, 8 Ala. 104; 
 Swift V. I/ce, 65 111. 336; Baker v. 
 Bibb, 17 B. Mon. 292; Blodgett v. 
 Chaplin, 48 Me. 322; Stanton v. 
 Green, 34 Miss. 576; Potter v. Mc- 
 Dowell, 31 Mo. 62; Mills V. Carnley, 
 I Bosw. 159; Clark v. Wise, 39 How. 
 Pr. 97; Ruhl V. Phillips, 2 Daly, 45; 
 Roberts v. Shepard, 2 Daly no; 
 Burt V. Keys, i Flippin 61; Dewey 
 V. Littlejohn, 2 Ired. Eq. 495; Tub'b 
 V. Williams, 7 Humph 367; Gillett 
 V. Phelps, 12 Wis. 392; Pilling v. 
 Otis, 13 Wis. 495. 
 
 i^Harris v. Burns, 50 Cal. 140; Starr 
 V. Strong, 2 Sandf. Ch. 139; Scheit- 
 lin V. Stone, 43 Barb. 634, S. C. 29 
 How. Pr. 355; Bridge v. Loeschigk, 
 42 Barb. 171, S. C. 42 N. Y. 421; 
 Ruhl V. Phillips, 48 N. Y. 125; 
 Starin v. Kelly, 36 N. Y. Supr. 366; 
 Pattison v. Stewart, 6 W. and S 72; 
 McCasland v. Carson, x Head. 117; 
 Ocoee Bank v. Nelson, i Cold. 186. 
 
 ^Borland v. Walker, 7 Ala. 269; 
 Wash V. Medley, 1 Dana 269; How 
 
 V. Camp, Walker Ch. 42?; Pope v. 
 Andrews, 1 S. and M. Ch. 135; 
 Owen V. Arvis,26 N.J. Eq. 22; Brown- 
 ing V. Hart, 6 Barb. 91; Cook v. 
 Smith, 3 Sandf. Ch. 333; Downing 
 V. Kelly, 49 Barb. 547; Kepner v. 
 Burkhart, 5 Penn. 478. 
 
 *Nesbitt V. Digby, 13 111. 387. 
 
 SElmes V. Sutherland, 7 Ala. 262; 
 Planters' Bank v. Clarke, 7 Ala. 765; 
 Ravisies v. Alston, 5 Ala. 297; 
 Googins V. Gilmore, 47 Me. 9; 
 Shurtleff v. Willard, 36 Mass. 202; 
 Harney v. Pack, 12 Miss. 229; 
 Farmers' Bank v. Douglass, 19 Miss. 
 469; Ewing V. Cargill, 21 Miss. 79; 
 Potter V. McDowell, 31 Mo. 62; 
 Houck V. Heinzman, 37 Neb. 463; 55 
 N. W. 1062; Hunter v. Foster, 4 
 Humph. 211; Darwin v. Handley, 3 
 Yerg. 502; Simpson v. Mitchell, 8 
 Yerg. 417; Richmond v. Curdup, 
 Meigs 581, 33 Am. Dec. 164; Sipe 
 V. Earmau, 26 Gratt. 563. 
 
BADGES OF FRAUD. 
 
 49 
 
 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.^ 
 
 § 62. Possession of Land.— The retention of the posses- 
 sion of land, with the exercise of unequivocal acts of owner- 
 ship over it, is a badge of fraud, for it is not in the 
 usual course of business, and indicates a secret trust for 
 the benefit of the debtor.^ The acts of ownership by the 
 debtor may consist either in renting,^ or collecting rents,* 
 
 IDickenson v. Cook, 17 Johns. 
 332; McNeal v. Glenn. 4 Md. 87; s. 
 C. 3 Md. Ch. 349; Park v. Harrison, 
 8 Humph. 412. 
 
 ^Borland v. Walker, 7 Ala. 269; 
 Planters' Bank v. Walker, 7 Ala. 
 926; Hamilton v. Blackwell, 60 Ala. 
 545; Tryon v. Flournoy, 80 Ala. 321; 
 Cooper V. Davidson, 86 Ala. 367; 
 (but see Tompkins v. Nichols, 53 
 Ala. 197); Ringgold v. Waggoner, 
 14 Ark. 69; Apperson v. Burgett, 33 
 Ark. 328; Purkitt v. Polack, 17 Cal. 
 327; Clark V. Johnston, 5 Day 373; 
 Hart V. Flinn, 36 la. 366; Steele z/ 
 Ward, 25 la. 535; Halbert v. Grant, 
 4 Mon. 580; Yoder v. Standiford, 7 
 Men. 578; Trimble v. Rate iffe, B. 9 
 Mon. 511; Lewis v. Love, 2 B. Mon. 
 345, 38 Am. Dec. 161; Alexander v. 
 Todd, I Bond i75;Lillardz/. McGee, 
 4 Bibb 165; Willinghamw. Smith, 48 
 Ga. 580; Johnson v. Lovelace, 51 
 Ga. 18; Collins v. Taggart, 57 Ga. 
 355; Rollins V. Mooers, 25 Me. 192; 
 Hartshorne v. Eames, 31 Me. 93; 
 Duvall V. Waters, i Bland. 569, 11 
 G. and J. 37, 18 Am. Dec. 350; 
 McNeal v. Glenn, 4 Md. 87, 3 Md. 
 Ch. 349; Zimmer v. Miller, 64 Md. 
 296, I Atl. 858; Fuller v. Brewster, 
 53 Md. 358; Oriental Bank v. Has- 
 kins, 3 Met. 332, 37 Am. Dec. 140; 
 How V. Camp, Walker's Ch. 427; 
 Roach V. Deering, 17 Miss. 316; 
 Dick V. Grissom, Freem. Ch. (Miss.) 
 428; Johnston v. Dick, 27 Miss. 277; 
 Stanton v. Green, 34 Miss. 576; 
 
 Knox V. Hunt, 34 Miss. 655; Case v. 
 Sawtelle, 11 Neb. 51, 7 N. W. 441; 
 Merrill z). Locke, 41 N. H. 486; King 
 V. Moon, 42 Mo. 551; Steward z/. 
 Thomas, 35 Mo. 202; Jackson v. 
 Mather, 7 Cow. 301; Bank of U. S. 
 V. Housman, 6 Paige' 526; Darden 
 V. Skinner, 2 N. C. L. R. 279; Starr 
 V. Starr, i Oh. 321; Avery v. Street, 
 6 Watts 247; Sarle v. Arnold, 7 R. L 
 582; Brown v. McDonald, 1 Hill Ch. 
 297; Dewey v. Littlejohn, 2 Ired. 
 Eq. 49s; Gibbs v. Thompson, 7 
 Humph. 179; Farnsworth v. Bell, 5 
 Sneed 531; Smith v. Hinson, 4 
 Heisk. 250; Callan v. Statham, 23 
 How. 477; U. S. V. Lottridge, i 
 McLean 246; Venable v. Bank, 2 
 Pet. 107; Middjeton v. Sinclair, 5 
 Cr. C. C. 409; Blennerhassett v. 
 Sherman, 105 U. S. 100; Williamson 
 V. Goodwyn, 9 Gratt. 503; Russell v. 
 Hammond, I Atk. 13; Clarke v. 
 Palmer, 21 Ch. D. 124. But see 
 Ryall V. Rolle, i Atk. 165, s. C. i 
 Ves. 348; Tibballs v. Jacobs, 31 
 Conn. 428; AUentown Bank v Beck, 
 49 Pa. St. 428. 
 
 SDuvall V. Waters, i Bland, 569, 
 S. c. II G. & J. 37; 18 Am. Dec. 350; 
 Callan v. Statham, 23 How. 477; 
 Bobb V. Woodward, 50 Mo. 95 ; 
 Smith z/. Hinson, 4 Heisk. 250; Jones 
 V. King, 86 111. 225. 
 
 ^Power V. Alston, 93 111. 587; 
 Swift V. Lee, 65 111. 336; How v. 
 Camp, Walkers' Ch. 427; Wisner v. 
 Farnh^m, 2 M.ch. 472; Schafer- 
 
50 
 
 BADGES OP FRAUD. 
 
 or giving receipts for rent in his own name,^ or directing 
 the making of leases,^ or making sales of the land,^ even 
 though he acts under a power of attorney from the 
 grantee,* or selling timber,^ or digging coal,® or paying 
 ground rent,^ or paying taxes,^ or making improvements,® 
 or driving the grantee off the land,^" The grantee may 
 make a bona fide lease to the debtor," but any act which is 
 out of the usual course in the transaction, such as a nomi- 
 nal renfc,^^ or the non-enforcement of payment of the rent,^^ 
 or an excessive rent,^* or any indefiniteness in the charac- 
 ter, terms or length of the tenancy,'® is a mark of fraud. 
 Executing a mortgage to secure the grantor's debts,'^ or 
 selling a part of the property to pay them,''^ or making a 
 
 man v. O'Brien, 28 Md. 565, 92 Am. 
 Dec. 708; Bobbw. Woodward, 50 Mo. 
 95; Ames V. Gilmore, 59 Mo. 537; 
 Sands v. Hildreth, 14 Johns 493, S. 
 C. 2 Johns Ch. 35; Lee v. Hunter, i 
 Paige 519; Lewis v. Love, 2 B. Mon. 
 345, 38 Am. Dec. i6i; Walcott v. 
 Almy, 6 McLean 23. 
 
 iDuvall V. Waters, I Bland. 569, 
 S. C. II G. & J. 37; 18 Am. Dec. 350; 
 Callan v. Statham, 23 How. 477. 
 
 SSchaferman v. O'Brien, 28 Md. 
 565, 92 Am. Dec. 708. 
 
 •^Alexander v. Todd, i Bond 175; 
 Smith V. Hinson, 4 Heisk. 250; 
 Second Natl. Bank v. Gratman, 53 
 Md. 440. 
 
 4Starr v. Starr, i Oh. 321; Gibbs 
 V. Thompson, 7 Humph. 179; Stan- 
 ton V. Green, 34 Miss. 576; Glenn v. 
 Glenn, 17 la. 498. 
 
 SDuval V. Waters, i Bland. 569; 
 S. c. II G. & J. 37, 18 Am. Dec. 350. 
 
 ^Alexander v. Todd, i Bond 175. 
 
 7Schaferman v. O'Brien, 28 Md. 
 565, 92 Am. Dec. 708. 
 
 SStanton v. Green, 34 Miss. 576; 
 Knox V. Hunt, 34 Miss. 655; Jacks 
 V. Tunno,' 3 Dessau, i; Sands v. 
 Codwise, 4. Johns, 536; Haskell v. 
 Bakewell, 10 B. Mon. 106; Hutchin- 
 son V. Kelly, 1 Rob. 123, 39 Am. 
 
 Dec. 250; Bobb v. Woodward, 50 Mo. 
 95; Jones V. King, 86 111. 225. 
 
 BSands v. Hildreth, 14 Johns. 493; 
 S. c. 2 Johns. Ch. 35; Merry v. Bost- 
 wick, 13 111. 398, 54 Am. Dec. 434; 
 Marshall v. Green, 24 Ark. 410; 
 Gibbs V. Thompson, 7 Humph. 179; 
 Tappan v. Butler, 7 Bosw.480; Jones 
 V. King, 86 111. 225. 
 
 lODuvall V. Waters, i Bland. 569, s. 
 c. II G. & J. 37, 18 Am. Dec. 708. 
 
 llGlenn v. Grover, 3 Md. 212, s.C. 
 3 Md. Ch. 29; Gardiner Bank v. 
 Hogdon, 14 Me. 453; Barr v. Hatch, 
 3 Oh. 527; Wood V Shaw, 29 111. 444. 
 
 l^Yoder v. Standiford, 7 Mon. 478; 
 Durkee v. Mahoney, i Aik. 116; 
 Bank v. Fink, 7 Paige 87; Gibbs v. 
 Thompson, 7 Humph. 179. 
 
 ISBank v. Fink, 7 Paige, 87; Reed 
 V. Blades, 5 Taunt. 212. 
 
 IJHitchcock V. St. John, Hofi. Ch. 
 511- 
 
 ISDick V. Grissom, i Freem. Ch. 
 (Miss.) 428. 
 
 IBSchaferman v. O'Brien, 28 Md. 
 565, 92 Am. Dec. 708; Bank of U. S. 
 V. Housman, 6 Paige, 526; Jacks v. 
 Tunno, 3 Dessau i; Hudgius v. 
 Kemp, 20 How. 45. 
 
 ^'Alexander v. Todd, i Bond, 175. 
 
BADGES OF FRAUD. 
 
 51 
 
 reconveyance of part for a nominal consideration,^ or 
 taking no steps for a long time to foreclose a pretended 
 mortgage,^ or selling to tlie debtor's son,^ or permitting 
 the grantor to retain possession fbr a long time,* — any one 
 of these acts — is a badge of fraud. 
 
 § 63. Out of the Usual Course.^ —Anything out of the 
 usual course of business is a sign of fraud.** Unusual 
 claiises in an instrument excite suspicion.^ The same 
 principle applies to a sale out of the usual course of busi- 
 ness,^ to the absence of accounts between the parties,* 
 when the transfer purports to be in consideration of a 
 debt due to the grantee,!" qj. ^^en the debtor professes to 
 act as agent for the grantee," to the absence of receipts 
 upon the payment of nioney,i^ to the execution of a deed in 
 the absence of the grantee,!^ to the retention of the 
 
 IGibbs V. Thompson, 7 Humph. 
 
 179. 
 
 26ibbs V. Thompson, 7 Humph. 
 
 179. 
 
 SPhettiplace v. Sayles, 4 Masou 
 
 312- 
 
 ^Mcintosh V. Bethune, 8 Ired. 
 139; Bank v. Fink, 7 Paige 87; 
 Swift V. Lee, 65 111. 336. 
 
 ^''Without going further into de- 
 tail it is sufiScient to say that the 
 transactions between Reigfelman 
 and Bessinger were so unusual, so 
 out of the ordinary course of busi- 
 ness, that, taken in connection with 
 his admission that the stock he 
 purchased was a bankrupt stock 
 and was so purchased at a ruinous 
 sacrifice, the learned circuit judge 
 was abundantly justified in finding 
 that the sale was in fraud of the 
 creditors of Bessinger." Frisk v. 
 Reigelman, 75 Wis. 499, 17 Am. St. 
 Rep. igS, 43 N. W. 1 117, 44 N. W. 
 766. Not taking invoice of stock is a 
 badge of fraud. Adams f.Edgerton^ 
 48 Ark. 419; 3 S. W. 628; Redhead 
 V. Pratt, 72 Iowa 99, 33 N. W. 382. 
 
 ^Danjean v. Blacketer, 13 La An. 
 595. 
 
 7Twyne's Case, 3 Co. 80; Moore 
 638; Harrison v. Campbell, 6 Dana, 
 263; Langford v. Ply, 7 Humph. 585. 
 8Leinkauff v. Frenkle, 80 Ala. 
 136; Godfrey v. Miller, 80 Cal. 420; 
 22 Pac. 290 ; Peirce v. Merritt, 70 
 Mo. 275; Stevens z/. Pierce, 147 Mass. 
 510; 18 N.E.411; HofEer t;. Gladden, 
 75 Ga. 532. 
 
 ^Hubbard v. Allen, 59 Ala. 283. 
 
 l^Williams v, Cheeseborough, 4 
 Conn. 356; Enders v. Swayne, 8 
 Dana 103; WheeUien v. Wilson, 44 
 Me. i; McDowell v. Goldsmith, 6 
 Md. 319, 24 Md. 214, 61 Am. Dec. 
 305; Dick V. Grisson, i Freem. Ch. 
 (Miss,) 428; Hyde v. Sontag, i Saw. 
 249; Shepherd v. Hill, 6 Lans. 387; 
 Partridge v. Stokes, 44 How. Pr, 
 381, 65 Barb. 586; Basey v. Daniel, 
 I Smith, 252; Haney v. Nugent, 13 
 Wis. 283. 
 
 llAlexander v. Todd, i Bond 175. 
 
 iSAlexander v. Todd, i Bond 175; 
 Brinks v. Heise, 84 Penn. 246; 
 Campbell v. Bowles, 30 Gratt. 652; 
 Hamilton v. Blackwell, 60 Ala. 545. 
 
 ISEnders v. Swayne,- 8 Dana, 103; 
 Swift V. Lee, 65- 111. 336; McLean v. 
 
52 
 
 BADGES OF FRAUD. 
 
 deed' or the mortgage note^ by the debtor, to the retention, 
 of the evidence of the debt by the creditor, when the trans- 
 fer purports to be in consideration of the debt,^ to the 
 omission to execute the mortgage note at the same time 
 with the mortgage,* to any alteration of a mortgage^ note, 
 to the alienation of valuable property without payment or 
 security,^ to a transfer in consideration of a worthless 
 note,^ to the purchase of property for which the grantee 
 has no use,* to the grantee's entrance into a' business 
 foreign to his own,^ to the grantee's pecuniary inability to 
 make the purchase,'" to the grantee's failure to pay taxes,'' 
 to the execution of a power of attorney by grantee to 
 grantor,'^ to an immediate transfer to the debtor's wife,'* 
 to an immediate transfer to another, in consideration of 
 
 Lafayette Bank, 3 McLean 587; 
 Leadman v. Harris, 3 Dev. 144. 
 
 iHun^erford u. Eairle, 2 Vern. 
 261; Tarback v. Marbury, 2 Vern. 
 510; Starr v. Starr, i Ohio 321. 
 
 2Bullockz'. Narrott, 49 111. 62. 
 
 ^Gardner v. Broussard. 39 Tex. 
 372; Webb B. Ingham, 29 W. Va. 
 389; I S. E. 816; Greenback v. Fer- 
 guson, 58 Fed. 18. 
 
 iPrior V. White, 12 111. 261. 
 
 SMerrill v. Williamson, 35 111. 529. 
 
 BGlenn v. Glenn, 17 la. 498 
 Alexander v. Todd, i Bond, 175 
 Smead z/. Williamson, 16 B. Mon. 492 
 Duvall V. Waters, i Bland 569; 11 G 
 and J. 37; 18 Am. Dec. 350; Camp- 
 bell V. Landberg, 27 Minn. 454; 
 8 N. W. 168; Pope V. Andrews, i S. 
 and M. Ch. 135; Owen v. Arvis, 26 N. 
 J. Eq. 22; Seymour v. Lewis, 13 N. 
 J. Eq. 439; Hendricks v. Robinson, 
 2 Johns. Ch. 283, S. C. 17 Johns. 438; 
 Hinton v. Curtis, 1 Pitts. L.J. 198. 
 
 ^Buswell V. Lincke, 8 Daly, 518. 
 
 SGrubbs v. Greer, 5 Cold. 160. 
 
 ^Boies V. Henney, 32 111. 130; 
 Buswell V. Lincke, 8 Daly, 518. 
 
 '"Overton z;.. Morris, 3 Port. 249; 
 Andtews ». Jones, 10 Ala. 400; Ring- 
 gold IK Waggoner, 14 kxV. 69; Swift 
 
 V. Lee, 65 111. 336; Glenn v. Glenn, 17 
 la. 498; Bnders v. Swayne, 8 Dana 
 103; Mcllvoy V. Kennedy, 2 Bibb 
 380; McLean v. Morgan, 5 B. Mon. 
 282; Smead v. Williamson, 16 B. 
 Mon. 492; Parrish v. Danford, i 
 Bond 345; James v. Johnston, 22 
 La. Ann. 195; Gordon v. Lowell, 21 
 Me. 251; Pope V. Andrews, i S. and 
 M. Ch. 135; Van Winkle v. Smith, 
 26 Miss. 491; Johnston v. Dick, 27 
 Miss. 277; Jessup v. Johnston, 3 
 Jones (N. C.) 335, 67 Am. Dec. 243; 
 Owen V. Arvis, 26 N. J. Eq. 22; Sey- 
 mour V. Lewis, 13 N. J. Eq. 439; 
 Sands v. Codwise, 4 Johns 536; Ry. 
 Co. V. Kyle, 5 Bosw. 587; Bredin v. 
 Bredin, 3 Penn. 81; Graham v. 
 Smith, 25 Penn. 323; Farnsworth v. 
 Bell, 5 Sneed 531; McCutcheon v. 
 Peigne, 4 Hejsk. 565; Dunlap v. 
 Haynes, 4 Heisk. 476; Venable v. 
 Bank, 2 Pet. 107. 
 
 llBulkley v. Buflfington, 5 McLean, 
 457; Judge V. Vogle, 38 Mich. 569, 
 Greenback v. Ferguson, 58 Fed. 18; 
 Shober v. Wheeler, 113 N. C. 370, 
 18 S. E. 328. 
 
 l-English V. King, 10 Heisk. 666. 
 
 iSMcCuUock V. Doak, 6S N. C. 
 267. 
 
BADGES OP FRAUD. 53 
 
 property conveyed to the debtor's wife,^ to the absence of 
 pressure by a preferred creditor,^ to the absence of com- 
 petition at a public sale,* to the vendee's declaration that 
 he is purchasing for the debtor,* to the confession of a 
 judgment and the issuing of an execution on the same day,^ 
 to the grantor's concealment of property,^ to the grantor's 
 flight,^ to an indemnity for sureties whose liabilities are 
 remote and depend upon a contingency,* to inconsistent 
 statements,^ and to other fraudulent transactions between 
 the same parties.^" The delivery of the deed by the debtor 
 to the recorder is not a mark of fraud.^^ A written trans- 
 fer of personal property is merely a suspicious circum- 
 stance.^^ If the grantee has been the attorney of the 
 grantor, and substantially knows the condition of the title, 
 it is no badge of fraud to omit to make an examination.^* 
 
 § 64. 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. Pre- 
 cision and formality," the pains taken to invite witnesses 
 to see the sale made, and the bantering and negotiation 
 about the price,^' cautioning the witnesses to pay attention 
 
 Wewman v. Cordell, 43 Barb. 504; Kittering v. Parker, 8 Ind. 44; 
 
 448; Dyer v. Taylor, 50 Ark. 314, 7 Danjean v. Blacketer, 13 La. An. 595. 
 
 S. W. 258. SHarney v. Pack, 12 Miss. 229. 
 
 SEveleigh v. Purrsford, 2 Mood. But see §504, fost. 
 
 & Rob. 539; Leadman z/. Harris, 3 9Daltonz/. Mitchell, 4J. J. Marsh. 
 
 Dev. 144; Kennedy v. Ross, 2 Mills 372; Fougeres v. Zacharie, 5 J. J. 
 
 Const. (S. C.) 125. Marsh. 504; Marshall v Green, 24 
 
 STavennerz'.Robinson,2Rob.28o. Ark. 410; vide Kane ®. Drake, 27 
 
 *Tavennerz/.Robinson,2Rob.28o. Ind. 29. 
 
 spioyd V. Goodwin, 8 Yerg. 484. lOBumpas v. Dotson, 7 Humph. 
 
 BDanby v. Sharp, 2 McArthur 310, 46 Am. Dec. 81. 
 
 435; Stevens v. Dillman, 86 111. 233; "Ward v. Wehman, 27 Iowa 279. 
 
 Comstock V. Rayford, 20 Miss. 369, l2Forsythe v. Matthews, 14 Penn. 
 
 S. C. 9 Miss. 423, 40 Am. Dec. 102; 100, 53 Am. Dec. 522; McQuinnay v. 
 
 Embry z/. Klemm, 30N.J. Eq. 517; Hitchcock, 8 Tex. 33; Kane v. 
 
 Avery z/. Street, 6 Watts 247; Sum- Drake, 27 Ind. 29; Mattingly v. 
 
 mers v. Howland, 2 Baxter 407; Walke, 2 Bradw. 169. 
 
 Hillsman v. Blackwell, 10 Heisk. isjenkins v. Einstein, 3 Biss. 128. 
 
 480; English V. King, 10 Heisk. 666. WHartshorne v. Eames, 31 Me. 93. 
 
 'Rogers v. Hall, 4 Watts 359; iSGoldsbury v. May, i Litt. 254; 
 
 Wright V. Hancock, 3 Munf. 521; z/joT^ Crawford v. Kirksey, 55-Ala. 
 
 Fougeres v. Zacharie, 5 J. J. Marsh. 282, 27 Am. Rep. 704. 
 
54 
 
 BADGES OF FRAUD. 
 
 and recollect what they hear,' telling them that the trans- 
 action is fair,^ a parade of payment in the presence of wit- 
 nesses,^ are signs of fraud, for when a part is overacted the 
 delusion is broken and the fiction appears.* 
 
 § 65. Absence of Evidence.^ — The omission of the grantee^ 
 to testify, or to produce the debtor^ or any other import- 
 ant witness,® or any important paper,^ affords ground for an 
 unfavorable presumption, and frequently exercises an im- 
 portant influence upon the final determination of the ques- 
 tion of fraud. 
 
 § 66. Proof of Payment of Consideration. — The grantee 
 need not prove the payment of the consideration until the 
 
 lAdams v. Davidson, lo N.Y. 309. 
 
 ^Comstock V. Rayford, 20 Miss. 
 369, s. C. 9 Miss. 423, 40 Am. Dec. 
 102. 
 
 Spickett V. Pipkin, 64 Ala. 920; 
 King V. Moon, 42 Mo. 551; Dorn v. 
 Bayer, 16 Md. 144; Venable v. Bank, 
 2 Pet. 107; Dunlap v. Haynes, 4 
 Heisk. 476. 
 
 ^Excessive parade of honesty is a 
 badge of fraud. Hart v. Sandy, 39 
 W. Va. 644, 20 S. E. 665. 
 
 B"Where tlie question at issue is 
 the'iowt? fides of a purchase made 
 by a party, and evidence is given 
 tending to show that the sale was 
 made with an evident intent to de- 
 fraud creditors, silence under such 
 circumstances may well prevent the 
 court from presuming too much in 
 favor of the transfer." Whitney z/. 
 Rose, 43 Mich. 27, 29, 4 N. W. 557; 
 Yeend v. Weeks, Ala., 16 So. 165; 
 Hofier V. Gladden, 75 Ga. 532; King 
 V. Atkins, 33 La. Ann. 1058, 1064; 
 Cochrane v. Gilbert, 41 La. Ann. 
 735, 740,6 So. 731; Baldwin v. Whit- 
 comb, 71 Mo. 651; Ham v. Gilmore, 
 59 N. Y. St. Rep. 291; Bleecker v. 
 Johnston, 69 N. Y. 309, 313 ; Whit- 
 ney z/. Ticonderoga, 127 N. Y. 40, 46, 
 , 27 N. E. 403, 37 N. Y. St. Rep. 135; 
 Smith V. Tosini, S. D., 48 N. W. 299, 
 
 301; Greenleve v. Blum, 59 Tex. 
 124, 128; Stirling f/. Wagner, Wyo., 
 31 Pac. 1032. 
 
 SGraham v. Furber, 78 E. C. L. 
 410, s. c. 14 C. B. 410, 2 C. and P. 
 432; 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. R. 437; Dun- 
 lap V. Haynes, 4 Heisk. 476; Hender- 
 son V. Henderson, 55 Mo. 534; Sec- 
 ond Natl. Bank v. Yeatman, 53 Md. 
 443; Connecticut Mutual Life Ins. 
 Co. «. Smith, 117 Mo. 261, 38 Am. St. 
 Hep. 656, 22 S. W. 623. 
 
 7Hale 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. R. 437; 
 
 Dunlap V. Haynes, 4 Heisk. 476; 
 
 Henderson v. Henderson, 55 Mo. 
 
 534; Roche V. Hassard, 5 Ir. Ch. 14; 
 
 Goshorn v. Snodgrass, 17 W. Va. 
 
 717. 
 
 8C0X 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. 
 
 SNicol V. Crittenden, 55 Ga. 497. 
 
BADGES OF FRAUD. 
 
 56 
 
 fraudulent intent of the grantor is shown,^ 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.^ He can not be alto- 
 gether relieved from this duty, although he is illiterate.^ 
 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,* and the want of 
 clear proof is evidence of fraud.^ Such proof is vital to up- 
 hold a transfer in other respects surrounded with suspicion;" 
 and this requirement is not met by the mere production of 
 notes and receipts,'' or the mere proof of payment with- 
 out any attempt to show where the money came from,* how 
 it was obtained, whose it was,^ or what was done with 
 it.^" Want of preciseness as to dates, time and amount ex- 
 cites suspicion, for the facts occurring in a suspicious trans- 
 action would naturally make an impression which would 
 
 iKing V. Russell, 40 Tex. 124. 
 
 2When the fraudulent intent of 
 tlie grantor is shown or can be 
 legitimately inferred, the grantee 
 must show payment of considera- 
 tion. Murray v. Heard, Ala., 15 So. 
 565; Chipman v. Glennon, 98 Ala. 
 263, 13 So. 822; Yale v. Bond, 45 La. 
 Ann. 997, 1003; 13 So. 587; Brandt ?<. 
 Stevenson, 3 Phila. 205; Tillman v. 
 Heller, 78 Tex. 597, 14 S. W. 700; 
 Venable v. Bank, 2 Pet. 107; Callan 
 V. Statham, 23 How. 477. 
 
 SPartridge v. Stokes, 44 How. Pr. 
 381, 66 Barb. 586. 
 
 4Hunt V. Blodgett, 17 111. 583; 
 Vandall v. Vandall, 13 Iowa 247; 
 Godfrey v. Germain, 24 Wis. 410. 
 
 SPurkitt V. Polack, 17 Cal. 327; 
 Draper v. Draper, 68 111. 17; Brady v. 
 Briscoe, 2 J. J. Marsh. 212; Harri- 
 son V. Campbell, 6 Dana 263; Enders 
 V. Swayne, 8 Dana 103; Jones v. 
 Read, 3 Dana 540; Duvall v. Waters, 
 I Bland 569, s. c. 11 G. and J. 
 37, 18 Am. Dec. 350; Dorn v. Bayer, 
 
 i5 Md. 144; Schaferman v. O'Brien, 
 28 Md. 565, 92 Am. Dec. 708; Rob- 
 bins V. Parker, 44 Mass. 117; Sands 
 V. Hildreth, 14 Johns. 493, S. C. 2 
 Johns. Ch. 35; Partridge v. Stokes, 44 
 How. Pr. 381, 66 Barb. 386; Callan v. 
 Statham, 23 How. 477. 
 
 BCallan v. Statham, 23 How. 477; 
 Gibbs z/. Thompson, 7 Humph. 179; 
 King V. Moon, 42 Mo. 551; Hum- 
 phries V. Wilson, 2 Del. Ch. 331. 
 
 ^Fulmore v. Burrows, 2 Rich. Eq. 
 95; Booker v. Worrell, 57 Ga. 235. 
 
 SHarrell v. Initrell, 61 Ala. 270; 
 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, l Bond 175; 
 Miller v. Sauerbier, 30 N. J. Eq. 
 71: Carney v. Carney, 7 Baxter 284. 
 
 Sjackson v. Mather, 7 Cow. 301; 
 King V. Moon, 42 Mo. 551. 
 
 lOKing V. Moon, 42 Mo. 551; Alex- 
 ander V. Todd, I Bond 175. 
 
56' 
 
 BADGES OF FRAUD. 
 
 not be effaced from the memory very soon, and tlie testi- 
 mony, if the transfer is recent, should be clear, accurate 
 and specific.^ 
 
 § 67. Relationship.^ — Relationship is not a badge of 
 fraud.^ Fraud, however, is generally accompanied with a 
 secret trust, and hence the debtor must usually select a 
 person in whom he can repose a secret confidence. The 
 sentiments of affection commonly generate this confidence, 
 and often prompt relatives to provide for each other at the 
 expense of just creditors. Consequently rejatives are the 
 persons with whom a secret trust is likely to exist. The same 
 principle applies to all persons with whom the debtor has 
 confidential relations. Any relation which gives rise to con- 
 fidence, though not a badge of fraud, strengthens the pre- 
 sumption that may arise from other circumstances, and 
 serves to elucidate, explain, or give color to the transac- 
 
 iNewman v. Cordell, 43 Barb, less z/. Flinchum, 89N. C.373; Gott- 
 
 448; Hyde v. Soutag, i Saw. 249; 
 Smith V. Brown, 34 Mich. 455. 
 
 ^Supporting the text doctrine 
 that conveyances between relatives 
 should be closely scanned, see 
 Sides V. Scharff, 93 Ala. 106, 9 So. 
 228; Marshall v. Croom, 52 Ala. 554; 
 Harrell v. Mitchell, 61 Ala. 270; 
 Gray v. Galpin, 98 Cal. 633, 33 Pac. 
 725; Thompson v. Feagin, 60 Ga. 
 82; Rockland Co. v. Summerville, 
 Ind., 39 N. E. 307; Oberholtzer v. 
 Hazen, la., 61 N. W. 365; Cox v. 
 Cox, 39 Kans. 121, 17 Pac. 847; 
 Whitson V. Griffis, 39 Kans. 211, 
 17 Pac. 8oi; Kennedy v. Powell, 34 
 Kans. 22, 7 Pac. 606; Steel v. De- 
 May, Mich., 60 N. W. 684; Leppig v. 
 Bretzel, 48 Mich. 321, 12 N. W. 199; 
 Ivadd V. Newell, 34 Minn. 107, 24 N. 
 W. 366; Hanson v. Bean, 51 Minn. 
 546, 38 Am. St. Rep. 516; Ridge v. 
 Greenwell, 53 Mo. App. 479; Renney 
 V. Williams, 89 Mo. 139, i S. W. 227; 
 Houck V. Heinzman, 37 Neb. 463, 55 
 N.W.1062; City Nat.Bank v. Bridges, 
 N.C.,i9S. E. 666; Kelley j/.Fleming, 
 113 N. C. 133, IS S. E. 81; McCan- 
 
 lieb V. Thatcher, 151 U. S. 271, 14 S. 
 Ct. 319; Knight V. Capito, 23 W. Va. 
 639; Beiler v. Moore, Wis., 60 N. W. 
 792; Cornish v. Clark, 1,. R. 14 Eq. 
 184, 42 L. J. (N. S.) Ch. 14, 20 W. R. 
 897, 26 L. T. (N. S.) 94. 
 
 But see the following cases inti- 
 mating an opposite view: Reehl- 
 ing V. Byers, 94 Pa. St. 316; Kitchen 
 V. McCloskey, 150 Pa. St. 376, 30 
 Am. St. Rep. 811, 24 Atl. 688, 30 W. 
 N. C. 481; Copis V. Middleton 2 Mad. 
 430; In r^ Johnson, 20 Ch. D. 387-397, 
 46 L. T. (N. S.) 772. 
 
 SCopis V. Middleton, 2 Madd,43o; 
 Merrill v. Locke, 41 N. H. 486; 
 Sterling v. kipley, 3 Chand. 166; 
 Wrightman v. Hart. 37 111. 123; Dun- 
 lap V. Bournonville, 26 Penn. 72; 
 Bumpas v. Dotson, 7 Humph. 310, 46 
 Am. Dec. 81; Wilson v. Lott, 5 Fla. 
 305; Montgomery v. Kirksey, 26 
 Ala. 172; Kane v. Drake, 27 Ind. 29; 
 Hempstead v. Johnston, 18 Ark. 
 123, 65 Am. Dec. 458; King v. Rus- 
 sell, 40 Tex. 124; Shearon v. Hen- 
 derson, 38 Tex. 245. 
 
BADGES OP FRAUD. 
 
 57 
 
 tion.i rpjjjg doctrine applies to the relationsliip of father,^ 
 mother,^ father-in-law,* mother-in-law,^ stepfather," un- 
 cle, '' brother, * sister, ^ brother-in-law, ^° sister-in- 
 
 iBrady 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. I Hill 347; Bumpas v. Dotson, 
 7 Humph. 310, 46 Am. Dec. 81; 
 Reiger v. Davis, 67 N. C. 185; Mar- 
 shall V. Croom, 60 Ala. 121; Harrell 
 V. Mitchell, 61 Ala. 270; Sherman v. 
 Hogland, 73 Ind. 472. 
 
 2 Hartshorn v. Eames, 31 Me. 93; 
 Mcintosh V. Bethune, 8 Ired. 139; 
 Poague V. Boyce, 6 J. J. Mar^h. 70; 
 Wheelden v. Wilson, 44 Me. i; 
 Vandall v. Vandall, 13 Iowa 247; 
 Weaver v. Wright, 13 Rich. 9; Slat- 
 tery v. Stewart, 45 111. 293; Forsyth 
 V. Matthews, 14 Penn. 100, 53 Am. 
 Dec. 522; Scrivenor v. Scrivenor, 7 
 B. Mon. 374; Walter v. McNabb, I 
 Heisk. 703; Hinton v. Curtis, i Pitts. 
 L. J. 198; Farmer v. Calvert, 44 Ind. 
 209. 
 
 3I<loyd V. Williams, 2L Penn. 327; 
 Splawn V. Martin, 17 Ark. 146; 
 Gardinier v. Otis, 13 Wis. 460; 
 Coley V. Coley, 14 N. J. Bq. 350; 
 Sporrer v. Eifler, 1 Heisk. 633; 
 Scott V. Winship, 20 Geo. 429. 
 
 ^Borland v. Walker, 7 Ala. 269; 
 Railroad Co. v. Kyle, 5 Bosw. 587; 
 Bozman v. Draughan, 3 Stew. 243; 
 Seymour v. Lewis, 16 N. J. Eq. 439, 
 78 Am. Dec. 108; Wilson v. Horr, 
 15 Iowa 489; Crawford v. Carper, 4 
 W. Va. 56; Planters' Bank t/.Walker, 
 7 Ala. 926; Gordon v. Lowell, 21 Me. 
 251; Borland v. Mayo, 8 Ala. 104; 
 Ryan v. MuUinix, 45 Iowa 631; 
 Embry v. Klemm, 30 N. J. Eq. 517. 
 
 ^Harrison v. Campbell, 6 Dana 
 263; Watson V. Kennedy, 3 Strobh. 
 Eq. i; Wilson v. Lott, 3 Fla. 305. 
 
 BAmes V. Gilmore, 59 Mo. 537. 
 
 7Felton 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. 
 
 SHudgins 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. c. 21 
 N. j. Eq. 364; Redfield Manf . Co. v. 
 Dys^rt, 62 Penn. 62; Dewey v. Little- 
 john, 2 Ired. Eq. 495; Hawkins v. 
 AUston, 4 Ir. Eq. 137; Bredin v. 
 Bredin, 3 Penn. 81; Millett v. Pot- 
 tinger, 4 Met. (Ky.) 213; Smith v. 
 People, 15 Mich. 497; Foster v. 
 Grigsby, 1 Bush 86; Pope v. An- 
 drews, I S. & M. Ch. 135; Endersz/. 
 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 N. 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. John- 
 son, 22 La. An. 195; Hecht v. 
 Koegel, 25 N. J. Eq. 135! Metro- 
 politan Bank v. Durant, 22 N. J. Eq. 
 35; Chase v. Welsh, 45 Mich. 345. 
 
 9McRea v. Branch Bank, 19 How. 
 376; Kaine v. Weigley, 22 Penn. 179; 
 Copenheaver v. Hufiacker, 6 B. 
 Mon. 18; Sayre v. Fredericks, 16 N. 
 J. Eq. 205; Sporrer v. Eifler, i Heisk. 
 
 633- 
 
 lOSchaferman v. O'Brien, 28 Md. 
 565, 92 Am. Dec. 708; 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; 
 
58 
 
 BADGES OF FRAUD. 
 
 law,^ wife,^ husband,^ son,^ daughter,^ son-in-law,^ cousin/ 
 
 BurtusV. Tisdall, 4 Barb. 571; Sa-t- 
 terwhite v. Hicks, Busbee 105, 57 
 Am. Dec. 577; Planters' Bank v. 
 Walker, 7 Ala. 926; Wilson v. Butler, 
 3 Munf. 559; Dalton v. Mitchell, 4 
 J.J. Marsh. 372; Venable v. Bank, 2 
 Pet. i07;Kainew. Weigley, 22 Penn. 
 179; Steele v. Ward, 25 Iowa 535; 
 Steere v. Hoagland, 39 111. 264; 
 'Gibbs V. Thompson, 7 Humph. 179; 
 Barrow v. Bailey, 5 Fla. 9; Bray v. 
 Hussey, 24 Ind. 228; Burke v. 
 Murphy, 27 Miss. 167; Bulkley v. 
 Buffington, 5 Mcl/ean 457; Hunt v. 
 Knox, 34 Miss. 655; Sayre v. Fred- 
 •ericks, 16 N. J. Eq. 205; Smith v. 
 Duncan, 2 Pitts. I/. J. 186; Alexan- 
 der V. Todd, I Bond 175; Harkins 
 ■V. Bailey, 48 Ala. 376; Swift v. lyce, 
 65 111. 336; Crawford v. Kirksey, 50 
 Ala. 591; Goshorn v. Snodgrass, 17 
 W. Va. 717. 
 
 ISmith V. Henry, 2 Bailey 118, 
 S. C. I Hill i5i Young v. Stallings, 
 5 B. Mon. 307; Walcott v. Almy, 6 
 McLean 23. 
 
 2Clarke v. McGeihan, 25 N. J. 
 Eq. 423- 
 
 3Tyberant v. Raucke, 96 111. 71; 
 Ansorge v. Earth, 88 Wis. 553, 43 
 Am. St. Rep. 928, 60 N. W. 1055. 
 
 ^Duvall z/. Waters, i Bland, 569, s. 
 c. II G.&J.37, 18 Am.Dec.35o;Farns- 
 ■worth V. Bell, 5 Sneed 531 ; Gibson v. 
 Hill, 23 Tex. 77; Glenn v. Glenn, 
 17 la. 498; Trimble v. Ratcliff, 9 
 B. Mon. 511, 12 B. Mon. 32; Ring- 
 gold V. Waggoner, 14 Ark. 69; 
 Ivaw V. Smith, 4 Ind. 56; Jones 
 V. Read, 3 Dana 540; Shiveley v. 
 Jones, 5 B. Mon. 274; Sheppard v. 
 Iverson, 12 Ala. 97; Basey v. 
 Daniel, i Smith 252; Dick v. Gris- 
 som, I Freem. Ch. (Miss.) 428; Hal- 
 bert V. Grant, 4 Mon. 580; Brady v. 
 Briscoe, 2 J. J. Marsh. 212; Middle- 
 ton V. Sinclair, 5 Cranch C. C. 409; 
 Bean v. Smith, 2 Mason 252; Sands 
 
 V. Codwise, 4 Johns. 536, 4 Am. Dec. 
 305; Jessup V. Johnson, 3 Jones (N. 
 C.) 335, 67 Am. 'Dec. 243; Carter v. 
 Carpenter, 7 Bush. 257; Tripp v. 
 Childs, 14 Barb. 85; Lewis v. Love, 
 2B. Mon. 345, 38 Am. Dec. 161; Jack- 
 son 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. Rus- 
 sell, 40 Tex. 124; JafEers v. Aneals, 
 91 111. 4S7; Knowlton v. Hawes, 10 
 Neb. 534, 7 N. W. 286; Fleming v. 
 Hiob, 3 Bradw. 390; King v. Hub- 
 bell, 42 Mich. 597, 4 N. W. 440; 
 Hoboken 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; Barnard v. Davis, 54 Ala. 565; 
 Massie v. Engart, 32 Ark. 251; Hills- 
 man V. Blackwell, lo Heisk. 480; 
 Fleischer v. Dignon, 53 Iowa 288, 5 
 N.W. 164; First Nat.Bank v. MofEatt, 
 77 Hun 468, 28 N. Y. ,Supp. 1078. 
 
 ^Foster v. Woodfin, 11 Ired. 339; 
 Haney v. Nugent, 13 Wis. 283; Mar- 
 shall 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. Alien, 59 Ala. 
 283; Marshall v. Croom, 60 Ala. 121. 
 
 SDuvall V. Waters, i Bland, 569, 
 S. c. II G. & J. 37; 18 Am. Dec. 350; 
 Black V. Cadwell, 4 Jones (N. C.) 
 150; Rollins V. Mooers, 25 Me. 192; 
 Garland v. Rives, 4 Rand. 282, 15 
 Am. Dec. 756; Merry v. Bostwick, 
 13 111. 398, 54 Am. Dec. 434; Hook 
 V. Mowre, 17 Iowa 195; Jackson v. 
 Mather, 7 Cow. 301; Tompkins v. 
 Nichols, 53 Ala. 199; Bell v. Devere, 
 96 111. 217; Gregory v. Gray, 88 Ga. 
 172, 14 S. E. 187. 
 
 ^Blodgett V. Chaplin, 48 Me. 322; 
 Nelson v. Smith, 28 111. 495. 
 
BADGES OF FRAUD. 59 
 
 step-daughter,^ nephew,^ stepson," grandson,^ to partners,^ 
 and to confidential friends^ or agents.' Wherever this 
 confidential relation is shown to exist, the parties are held 
 to a fuller and stricter proof of the consideration,^ and of 
 the fairness of the transaction.® 
 
 § 68. 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 hind- 
 rance 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 
 
 IWhitson V. GrifiSs, 39 Kans. 211, 
 17 Pac. 847. 
 
 2Phettiplace v. Sayles, 4 Mason 
 312; Copis V. Middleton, 2 Madd- 
 410; Ivangford v. Fly, 7 Humph. 
 585; Bibb V. Baker, 17 B. Mon. 292; 
 Davis z/. Gibbon, 24 Iowa 257.' 
 
 3Marlow z-.Orgill.S Jur.(N.S.) 829. 
 
 4Smith V. Daniel, i Smith 252; 
 Basye v. Daniel, i Ind. 378. 
 
 SThompson v. Drake, 3 B. Mon. 
 565; Strong V. Hines, 35 Miss. 201. 
 
 6Gibbs V. Thompson, 7 Humph. 
 179; Yoder v. Standiford, 7 Mon. 
 478; Wells V. Thomas, 10 Mo. 237; 
 Paxton V. Boyce, i Tex. 317. 
 
 7Clark 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; 
 Stanton v. Green, 34 Miss. 576; 
 Bridge v. Loeschigk, 42 N. Y. 421, 
 42 Barb. 171; Danby z/. Sharp, 2 Mc- 
 Arthur, 435. 
 
 SBarnard v. Davis, 54 Ala. 565; 
 Dick V. Grissom, i Freem. Ch. 
 (Miss.) 428; Hawkins v. Allston, 4 
 Ired. Eq. 137; Satterwhite v. Hicks, 
 Busbee 105, 57 Am. Dec. 577; Bra- 
 dy V. Briscoe, 2 J. J. Marsh. 212; 
 Brice v. Meyers, 5 Ohio 121. 
 
 And when transactions between 
 relations are attacked the burden 
 of proving good faith and consider- 
 ation is on the relative who is gran- 
 tee. Seasongood v. Ware, Ala., 16 So. 
 51; Thompson v. Tower Mfg. Co., 
 Ala., 16 So. 116; Yeend v. Weeks, 
 Ala., 16 So. 165; Catchings v. Har- 
 crow, 49 Ark. 20, 3 S. W. 884; Tread- 
 way V. Turner, Ky., 10 S. W. 816; 
 Melick V. Varney, 41 Neb. 105, 59 
 N. W. 52i;Brownellz'. Stoddard, 42 
 Neb. 177, 60 N. W. 380; Allen v. 
 McLendon, 113 N. C. 321, 18 S. B. 
 206; Mitchell V. Mitchell, 42 S. C. 
 475, 20 S. E. 405; Grant v. Sutton, 
 Va., 19 S. E. 784- 
 
 But see Kane v. Desmond, 63 Cal. 
 464; Belt V. Raguet, 27 Tex. 479; 
 King V. Russell, 40 Tex. 124. 
 
 In such cases it is not necessary 
 to establish good faith by more 
 than a preponderance of evidence. 
 McEvony v. Rowland, Neb., 61 N. 
 W. 124. 
 
 SBowman v. Houdlette, 18 Me. 
 245; Jenkiris v. Pearce, i Jones (N. 
 C.) 413; Black V. Cadwell, 4 Jones 
 (N. C.) 150; Lloyd V. Williams, 21 
 Penn. 327. 
 
60 BADGES OF FRAUD. 
 
 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 dontain 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, shall desire to take possession 
 or shall request that the property be sold.^ The instru- 
 ment may even contain a stipulation that the debtor may 
 remain in possession for a certain period, unless an execu- 
 tion shall in the meantime be issued against him.^ A deed 
 of trust may also allow a liberal discretion to the trustee 
 in the disposition of the property, both as to the time and 
 as to the manner of making the sale.^ A provision that 
 the property shall be sold before the time stipulated for a 
 sale, if the grantor desires it, does not render the deed 
 void.* If the debtor does not retain the possession of the 
 property, a delay of three years may be allowed.^ Mere 
 delay in enforcing a mortgage or deed of trust is simply a 
 circumstance to be taken into consideration,^ for the credit- 
 ors may proceed to collect their demands from the prop- 
 erty if its value exceeds the amount secured by the mort- 
 gage 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 com- 
 
 iDubose V. Dubose, 7 Ala. 235, 42 ^sipe v. Barman, 26 Gratt. 563. 
 
 Am. Dec. 588; Brock v. Headon, 13 Sstarke v. Etheridge, 71 N. C. 
 
 Ala. 370; Marriott v. Givens, 8 Ala. 240. 
 694- 6Galt V. Dibrell, 10 Yerg. 146; 
 
 2Alton V. Harrison, I,. R. 4 Ch. Davis v. Evans, 5 Ired. 525; Ely v. 
 
 Ap. 622; I,ee V. Flannagan, 7 Ired. Carnley, 3 E. D; Smith 489; Har- 
 
 471; Prior V. White, 12 111. 261; shaw z/. Woodfin, 64 N. C. 568; Lee 
 
 Frost V. Mott, 34 N. Y. 253. v. Flannagan, 7 Ired. 471; Hardy v. 
 
 SBrock V. Headon, 13 Ala. 370; Skinner, 9 Ired. 171; Burgin v. Bur- 
 Burgin v. Burgin, i Ired. 453; Walt- gin, i Ired. 453; Dewey v. Little- 
 hall z;. Rives, 34 Ala. 91; Tarver &. John, 2 Ired. Eq. 495; Feurt v. 
 Roffe, 7 Ala. 873; Sipe v. Earinan, Rowell, 62 Mo. 524. 
 26 Gratt. 563. 
 
POSSESSION. 61 
 
 passion or humanity of the mortgagee or trustee, or on 
 account of a desire, if such exists, to prevent a sacrifice of 
 the property, for the purpose of protecting the interests of 
 the party who holds such security. 
 
 CHAPTER V. 
 
 POSSESSION. 
 
 § 69. Preliminary Eemarks. — 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, is remarkable. It happened 
 that whilst the courts and the books laid down the rule 
 broadly 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, and eventually the rule itself was abrogated 
 in many States.^ A point which has been so extensively 
 
 iStoddard v. Butler, 20 Wend. and leaves them with the judgment- 
 507, 7 Paige 163, per Senator Ver- debtor, to the intent that he pay for 
 planck. In a note to Bissell v. Hop- and redeem them (Cole v. Davies, i 
 kins, 3 Cow. i65, 15 Am. Dec. 259; lyd. Raym. 724). 5. Where the 
 the number of the exceptions is goods purchased in this manner are 
 stated to be twenty-four, the princi- left from benevolence or for a tem- 
 pal of which are as follows: i. porary and honest purpose (Kidd Z'. 
 Where a creditor is knowing and Rawlinson, 2 B. & P. 59, 3 Esp. 52). 
 assenting to the sale (Steele v. 6. Where money is lent to buy fur- 
 Brown, I Taunt. 381). 2. Where the niture, and a bill of sale honestly 
 sale is conditional (per Coke, J., in taken to secure the repayment of 
 Stone V. Grubbam, 2 Bulstr. 217, i the money (Meggott v. Mills, 1 Ivd. 
 Rol. Rep. 3, and per Buller, J., in Raym. 286, 12 Mood. 159). 7. Where 
 Edwards v. Harben, 2 T. R. 587), the purchase was a fair one at pub- 
 i. e. in the last case a condition pre- lie sale, and the goods are left with 
 cedent to be performed by the ven- a relation or friend (per Shippen, 
 dee. 3. Where the goods remain Ch. J., in Walters v. McLellau, 4 
 with the vendor to be sold for the Dall. 208. 8. Where the vendor is 
 benefit of the vendee, the vendor an intended husband, and sells to 
 being a borrower on bottomry [i. e. trustees to make a marriage settle- 
 a mortgagor), the trust being de- ment upon his future wife (Hazelin- 
 clared by the deed (Bucknal v. ton v. Gill, 3 T. R. 620, in notis, 3 
 Roiston, Prec. Ch. 285.) 4. Where Doug. 415; Cadogan v. Kennett, 2 
 A. purchases the goods on a fi.fa. Cowp. 432). 9. Where a bill of sale is 
 
62 POSSESSION. 
 
 litigated will best be uaderstood by an examination, first 
 of the principles, then of the authorities. 
 
 § 70. 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 inconsistent possession, but a fraudulent design, not 
 against fair and honest contracts, but conveyances made 
 with the intent to delay, hinder or defraud creditors."^ 
 The intent of the debtor is, therefore, by the very terms 
 of the act, the true and legitimate object of inquiry and 
 judicial investigation. If the fraudulent intent is present, 
 the conveyance is void; if it is absent, the conveyance is 
 valid. All the circumstances that accompany a transaction 
 are valuable only as they t'hrow light upon the debtor's 
 intent. 
 
 § 71. Tendee's Right to Leave With Tendor. — A full and 
 free power of (Jisposal of chattels is an essential and in- 
 herent 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 possession, or place 
 
 a mortgage (Barrow v. Paxton, 5 474.) 13. A purchase by a creditor in 
 Johns. 258, 4 Am. Dec. 354; U. S. v. an execution (Watkins v. Birch, 4 
 Hooe, 3 Cranch, 73). 10. Where Taunt. 823). 14. A purchase under a 
 the noQ-delivery arises from the landlord's warrant of distress (Guth- 
 sickness of the vendor's depositary rie v. Wood, i Starkie, N. P. 367). 
 (Seals V. Guernsey, 8 Johns. 446, 5 15. A ship abroad may of course be 
 Am. Dec. 348.) 11. Where the assign- sold and possession retained by the 
 nient is of a cargo in a ship lying vendor until her return (Putnam v. 
 at a port where the assignment is Dutch, 8 Mass. 287). 16. A bona 
 executed, but bound to a foreign fide sale of bricks in a brick -yard, 
 port, the assignment providing that accompanied with a lease of the 
 remittances shall be made to liquid- yard to the vendee until the bricks 
 ate the debt due to the vendee in should be sold and removed, was 
 consideration of which debt the held to be valid against the credit- 
 assignment is made, &c. (Dawes v. ors of the vendor without actual 
 Cope, 4 Biun. 258). 12. Where the removal (Allen v. Smith, 10 Mass. 
 conveyance was late on Saturday 308). 
 
 night, and the possession remained IDavis v. Turner, 4 Graft. 422; 
 
 unchanged until Monday (Wilt v. Hobbs v. Bibb, 2 Stew. 54; Bryant 
 
 Franklin, i Binn. 502, 32 Am. Dec. v. Kelton, i Tex. 415. 
 
POSSESSION. 63 
 
 them in possession of a third person,^ unless such act 
 necessarily and inevitably tends to deceive and defraud 
 creditors. The argument that the retention of possession 
 is fraud per se cannot rest upon the incompleteness of the 
 purchaser's title, for in sales of personal property actual 
 delivery is not necessary to the transmission of the title.^ 
 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. in prwsenti, and 
 receives payment therefore, 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.^ 
 
 § 72. Possession by Tendor is Badge of Fraud.— The want 
 of possession, however, is a strong badge of fraud. The 
 property is placed in the purchaser, the possession con- 
 tinues in the debtor, and by that means creditors, perceiv- 
 ing no visible diminution of the debtor's effects, rest satis- 
 fled, and take no measures to secure their debts, until, per- 
 haps, 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 de- 
 mands in time. It has this further ill effect, that the debtor, 
 still continuing in possession and being reputed owner, ob- 
 tains credit upon a belief that he is the owner, and so by 
 the fault of the vendee possesses the means of contracting 
 debts without the means of paying them.* As it is out of 
 the ordinary course of business for a person to buy goods 
 
 iHanford v. Artcher, 4 Hill 271, 3Davis v. Turner, 4 Gratt. 422. 
 
 s. c. I Hill 347. ^Ingles v. Donalson, 2 Hayw. 
 
 2Cole V. White, 26 Wend. 511, 571 Ludlow v. Hurd, 19 Johns. 218. 
 s. c. 24 Wend. 116. 
 
64 POSSESSION. 
 
 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 maybe used to 
 protect secret transfers. It, therefore, has a direct tend- 
 ency to deceive and defraud creditors, and, as the law al- 
 ways 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.^ 
 
 § 73. Not Conclusive. — Although the retention of posses- 
 sion 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 evi- 
 dence of all property, it is now too late to discuss, because 
 as far back as the Year Books,^ a gradual was limited to 
 A. for life, and afterwards to B. In modern times the 
 courts, procee,ding upon the same principle, have said that 
 personal property may be carved out in the same manner 
 and possession given to one for life and then over,^ and it 
 is now settled law that possession is only presumptive evi- 
 dence of ownership.* The frequent necessity of intrust- 
 ing personal estate to others than the actual owner— to 
 clerks, domestics, factors, mechanics and borrowers — for- 
 bids the adoption of the rule that possession shall always 
 be deemed conclusive evidence of title.^ But the line of 
 distinction between presumptive and conclusive evidence 
 of fraud is clearly drawn. If the inevitable consequence 
 of an act is to defraud creditors, then that act is conclu- 
 sive evidence of fraud.' But if the tendency to defraud is 
 only a natural and probable and not an inevitable conse- 
 
 1 iGriswold v. Sheldon, 4 N. Y. ^Aiid there was no occasion other- 
 
 S^iJ- wise for the statute of King James, 
 
 237 Hen. VI, 30, Stat. 21 Jac. I, 19 ss. 10, 11; Arun- 
 
 Sjarman v. Wooloton, 3 T. R. dell v. Phipps, 10 Ves. 139. 
 
 618; Haven v. Low, 2 N. H. 13, 9 BHaven y. Low, 2N.H. 13, 9 Am. 
 
 Am. Dec. 25. Dec. 25. 
 
POSSESSION. 65 
 
 quence of an act, then that act is only presumptive evidence 
 of fraud. As possession is only presumptive evidence of title, 
 the retention of possession has only a probable tendency to 
 deceive, and is therefore only presumptive evidence of an 
 intent to defraud. 
 
 § 74. Caveat Creditor. — In purchases of personal prop- 
 erty 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.^ Before giving credit he should 
 diligently inquire as to the title of the property in the 
 possession of the debtor. When he makes J)roper inquiry 
 he may ascertain that the naked fact of possession after a 
 sale is the only indication of fraud, and that even this 
 indication is weakened by clear evidence of a full con- 
 sideration, 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 par- 
 ties, that this condition ought not to cast any suspicion on 
 the transaction. Thus, cases will occur to every one where 
 property may be honestly loaned for a time to the vendor 
 from mere charity; other cases for hire, and others still 
 for the property to be repaired, freighted or manufac- 
 tured. In others it may be left with the vendor from 
 simple procrastination as to its removal, and in others 
 because the property is of so ponderous a nature as to 
 render a speedy removal inconvenient in the usual course 
 of business. The length of time it is left or loaned, 
 whether for hours, months or years, would frequently 
 much strengthen or weaken any presumption of fraud.^ 
 
 iHaven v. Low, 2 N. H. 13, 9 more effective to suppress fraud. 
 
 Am. Dec. 25; Davis v. Turner, 4 If by the inquisitions of the judi- 
 
 Gratt. 422; Sydnor v. Gee, 4 Leigh cial crucible a. transaction, both 
 
 535. honest and fair, may be alloyed 
 
 2Haven v. Low, 2 N. H. 13, g until it is dishonest and fraudulent, 
 
 Am. Dec. 25. The rule that posses- by the inverse power of transmuta- 
 
 sion should be deemed conclusive tion, a fraud may be refined until it 
 
 evidence of title would not be any is equivalent to honesty and truth. 
 
66 POSSESSION. 
 
 It is, moreover, vain to attempt so to arrange the posses- 
 sion 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 
 of the law were directed to the protection of creditors who 
 ought to protect themselves.^ 
 
 § 75. Rule of Policy.— 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. 
 If, therefore, the object is to ascertain the merits of the 
 case, it would seem that to hold the inference conclusive, 
 and in effect an estoppel to all further investigation, would 
 be against the plainest principles of presumptive evidence.^ 
 The rule that the retention of possession is a fraud per se 
 is accordingly 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.^ 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 considerations. 
 The courts can only look for the fraudulent intent. If that 
 is present, the transaction is void; if that is absent, it is 
 valid. Such are the imperative terms of the act. To dis- 
 
 If truth may become constructive reach of execution, is to place them 
 
 falsehood, by the same rule false- in the possession of his friend, 
 
 hood may become constructive against whom no process has been 
 
 truth. If the possession of per- issued. (Stoddard v. Butler, 20 
 
 sonal chattels is or ought to be, Wend. 507, /"sr Senator Dickinson.) 
 
 conclusive evidence of ownership, ISydnor v. Gee, 4 Leigh 535; 
 
 it 'is also, or ought to be, conclusive Davis v. Turner, 4 Gratt. 422. 
 
 evidence that a person not in pos- ^Davis v. Turner, 4 Gratt. 422. 
 
 session is not the owner. All, then, ^Wilson v. Hooper, 12 Vt. 653, 36 
 
 that remains for the fraudulent Am. Dec. 366; Kirtland v. Snow, 20 
 
 debtor to do, who would conclus- Conn. 23. 
 ively place his chattels beyond the 
 
POSSESSION. 67 
 
 regard 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 bodied; 
 questions of law are proper subjects for the determination 
 of the courts. -"^ 
 
 § 76. Easnares Innocent Men.— The doctrine that the 
 retention of possession is a fraud per se has, however, been 
 supposed to have the advantage of simplicity, since it has 
 been believed to afford a ready and easy solution to all 
 questions coming within its range. But this supposed, 
 advantage is purchased at too dear a price. It is often, 
 obtained by a sacrifice of the justice of the case. How 
 can it be otherwise when, in 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 ? ^ 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 
 
 iHanford v. Artcher, 4 Hill 271, that can be derived from the reten- 
 S. C. I Hill 347. The difference be- tion of possession, 
 tween policy as laid down by a legis- 2"in my long experience, I have 
 lature and policy as enforced by had occasion to observe the mis- 
 courts is vfell illustrated by the dif- chievous operation of the rule, for 
 ferences in their modes of treating under its application I have found 
 this subject. The courts prohibit all myself compelled, as judge, to pro- 
 transactions where the vendor re- nounce transactions to be fraudu- 
 tains possession, while the legisla- lent and void as to creditors which 
 ture sittiply corrects the evil by re- were known to be perfectly fair 
 quiring that there shall be an in- and bona fide, and were not in- 
 strument in writing duly recorded, tended or calculated to delay, hin- 
 and thus obtains all the benefits der, or defraud creditors." (Davis 
 
 V. Turner, 4 Gratt. ^22, per Cabell, J.) 
 
68 POSSESSION. 
 
 watchful that honest acts be -precisely measured according 
 to the standard of legal morality.^ 
 
 § 77. Simplicity Not Attained. — This supposed advantage 
 of simplicity does not in fact exist. No one can glance at 
 the confused mass of authorities upon this subject without 
 perceiving that what was intended as a safe and easy 
 guide to the detection and suppression of frauds has only 
 led to an endless maze of disputation. There is scarcely a 
 proposition in regard to the essence or the application of 
 the doctrine upon which there may not be found a conflict 
 of authorities. Those who doubt the truth of this will be 
 best convinced by exploring the field of authority. The 
 doctrine, though plausible, is extremely difficult in prac- 
 tice. 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 perplex- 
 ity and contrariety.^ 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 throwing 
 any light upon the truth and justice of the cause. They 
 involve questions of pra!cticability, disability, diligence 
 and notice, upon which the case may be made to turn, 
 irrespective of the fairness and good faith of the transac- 
 tion. It is, moreover, somewhat remarkable that a person 
 should, be convicted of a fraud upon a nice question 
 whether he has used reasonable diligence or given due 
 notice.* 
 
 iTo be strict as to the tithe of of the court and of the jury to 
 
 mint, anise, and cummin, and for- determine what is law and what is 
 
 getful of the weightier matters of fact. One of the questions upon 
 
 social duly. (Hugus v. Robinson, which difficulty has arisen is fraud 
 
 24 Penn. 9). in the sale or transfer of chattels 
 
 2Davis V. Turner, 4 Gratt. 422. under 13 Eliz. c. 5. (McKibbin v. 
 
 In those courts where the doctrine Martin, 64 Penn. 352, 3 Am. Rep. 
 
 of fraud per se is held, it has 588.) 
 
 accordingly been found that there spavis v. Turner, 4 Gratt. 422. 
 
 are no more difficult and embarrass- These exceptions must multiply as 
 
 ing questions than those which the exigency of circumstances may 
 
 relate to the respective provinces require, until ultimately they 
 
POSSESSION. 69 
 
 § 78. 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 
 *^^he conveyance so as to avoid the discrepancy. Nothing 
 more is necessary than to give to the transaction the form 
 of a sheriflTs sale, or of any of the other admitted excep- 
 tions 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 at a 
 sheriff's sale in the name of a confederate, with funds fur- 
 tively furnished by or on the part of the embarrassed debt- 
 or.^ 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 th.e 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.^ 
 
 destroy the rule itself, or, what is iDavis v. Turner, 4 Gratt. 422. 
 the same thing, reduce it to one It was accordingly found necessary 
 that is only prima facie. Indeed, in New York to hold that the re- 
 it seems impracticable to preserve tention of possession after a sheriff's 
 unbroken any rule of inflexible sale is prima facie evidence of 
 rigor upon the subject, however fraud. (Partington v. Caswell, 15 
 inexorable in its terms, for the Johns. 430; Taylor v. Mills, 2 Edw. 
 mind is apt to revolt against the Ch. 318; Gardinier v. Tubbs, 21 
 despotism of a judicial dogma that ' Wend. 169; Fonda v. Gross, 15 
 oppresses the truth and justice of a Wend. 628.) 
 
 cause, or to seek refuge in subtle 2Davis v. Turner, 4 Gratt. 422; 
 
 distinctions, as artificial as the rule Stoddard v. Butler, 20 Wend. 507, 
 
 itself. 7 Paige, vj-^^per Senator Dickinson. 
 
70 POSSESSION. 
 
 § 79.— Not Good Policy.— Even on the simple ground of 
 policy — tlie only ground on which it can by any possibility 
 be sustained — the rule is open to grave objections. It 
 restricts the free circulation of personal property, hampers 
 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 implements of 
 husbandry or the tools of his trade, yet he cannot retain 
 the possession, although they are the only means of support 
 for himself and family.'^ A minister of the gospel cannot 
 retain the horse that is essential to the performance of his 
 duties.^ Machinery must be removed from the manufac- 
 tory.^ The vendor cannot even be permitted to finish the 
 articles which are in the process of mq,nufacture.* A man 
 cannot purchase chattels, and leave them with a feeble 
 relative for the sake of comfort and assistance.^ If the 
 vendor and vendee live in the same house, there cannot be 
 a valid sale of furniture in it without a removal.® 
 
 § 80.— Commerce Promoted.— Illustrations of the danger 
 of false credit and fraudulent evasion of debt, whenever 
 delivery and change of possession do not accompany and 
 follow change of property, and of the modes in which 
 such frauds can be effected, can be readily furnished, and 
 their truth cannot be denied. Yet this is but one, and that 
 the narrowest side of the question ; whilst it is also that 
 view of the matter which is most frequently, indeed almost 
 exclusively, presented to the examination of courts. But a 
 
 iDoane v. Eddy, i6 Wend. 523. of distress and sufiering by honest 
 
 2Doane v. Eddy, 16 Wend. 523. means. To hold such a transaction 
 
 3Swift V. Thompson, 9 Conn. 63, inconsistent -with good faith or the 
 
 21 Am. Dec. 718; Tobias v. Francis, rights of the creditors would be to 
 
 3 Vt. 425, 23 Am. Dec. 217. stamp as a fraud what, by the law 
 
 ^Carter v. Watkins, 14 Conn. 240. of God as well as by the common 
 5 The law which regards and ' consent of mankind, is esteemed as 
 
 scans with scrupulous vigilance a virtue. (Henderson v. Mabry, 13 
 
 every circumstance from which a Ala. 713; Mauldin v. Mitchell, 14 
 
 legitimate inference of fraud orun- Ala. 814). 
 
 fairness may be drawn, is, at the esteelwagon z/. Jefiries, 44 Penn. 
 
 same time, not so wanting in hu- 407. 
 
 manity as to lorbid the alleviation 
 
POSSESSION. ^1 
 
 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 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.^ 
 
 § 81. Rights of Others Besides Creditors —Since the 
 
 retention of possession may in a multitude of cases be 
 beneficial and advantageous, there is another consideration 
 that is entitled to great weight. Neither the legal nor 
 the moral code should be administered for the sole benefit 
 of creditors. They become creditors by their own voli- 
 tion, and have abundant means for their own protection. 
 Greneral creditors ought not to be placed upon a superior 
 footing to him who furnishes his poor neighbor with a cow 
 to nourish his children or a team to sow his crop or gather 
 in his harvest. If the commercial interest can not be sus- 
 
 iCole V. White, 26 Wend. 511, />er Senator Verplanck. 
 
72 POSSESSION. 
 
 tained without trampling upon all others, and the ordinary 
 charities of life besides, the sooner it finds its level the 
 better. It is an idle dream to suppose that the cause of 
 morals can be advanced by establishing a rule which 
 ministers to the liiercenary 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 in- 
 tercourse, and when the law seeks to erect a standard of 
 its own, it abandons its own proper province and attempts 
 an impossible task. Honesty cannot be divided into chap- 
 ters, nor can morality be -defined by sections.^ 
 
 § 83. 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- 
 lent, and void, has not been laid down by any court, or 
 adopted in any jurisdiction. There are admitted exceptions 
 to the rule, varying in number and character according to 
 the strictness with which the rule is administered. But 
 evidence is either prima facie or conclusive. If evidence is 
 liable to be contradicted or explained, it is only prima 
 facie, but conclusive evidence cannot be contradicted. 
 Prim,a facie evidence, although it admits the possibility 
 of its falsity, yet is conclusive unless contradicted or 
 explained. Conclusive evidence admits no such possibility 
 of falsity. It is absolute 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. 
 
 iStoddard V. Butler, 20 Wend. 507, ><?r Senator Dickinson. 
 
POSSESSION. 73 
 
 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.^ 
 
 § 83. 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 
 reasons which are permitted to take a case out of the rule 
 must be shown to and approved of by the court.^ 
 
 The presumption of fraud, however, arising from the 
 retention of possession, is simply a presumption of an in- 
 tent 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 
 
 1 Hall V. Tuttle, 8 Wend. 375, 40 ing to the course of the court to call 
 Am. Dec. 382.. this a fraud /^r se and to direct the 
 2Divver v. McLaughlin, 2 Wend, jury to find the sale void, but the 
 596, 2g Am. Dec. 655; Collins v. question is submitted to the jury- 
 Brush, 9 Wend. 198; Coburn v. as a question of fact, with iristruc- 
 Pickering, 3 N. H. 415, 14 Am. Dec. tion that if they find none of the 
 375; Toby V. Reed, 9 Conn. 216; established exceptions, they will 
 Carter v. Watkins, 14 Conn. 240;' find the transaction fraudulent. 
 Planters' Bank v. Borland, 5 Ala. (Swift v. Thompson, 9 Conn. 63.) 
 531; Trask v. Bowers, 4 N. H. 309; But in Toby v. Reed, 9 Conn. 216, 
 Mauldin v. Mitchell, 14 Ala. 814. the term court was held to mean 
 
 In Connecticut the practice is the jury acting under the direction 
 
 lightly different. It is not accord- of the court. 
 
Y4 POSSESSION. 
 
 that lie acted in good faith. It is strictly under the 
 statute a question of fact, such as a jury may decide, and of 
 which the jury alone must judge if the question comes 
 before a court of common law.^ 
 
 § 84. Court can not Determine Sufficiency of Explanatory 
 Evidence. — The statute has not given the court any power 
 to determine what particular facts shall or shall not be suffi- 
 cient evidence of honest intention, nor can such power be 
 derived from the acknowledged right to reject incompetent 
 ' evidence, for this does not imply the right to exclude proof of 
 such facts' as by the ordinary laws of evidence and the 
 common understanding of men go to prove honest intent, 
 or to disprove deceit and collusion, merely because in the 
 view of the court such evidence is not absolutely and in all 
 cases demonstrative proof. It does not authorize the court 
 to create a general rule of policy, declaring that certain 
 facts which are not always of necessity incompatible with 
 collusion shall never in any case be received as proof of 
 good faith. This is in effect to declare that the question 
 of intent shall be wholly a question of law. This intent to 
 hinder, delay or defraud is a moral or intellectual fact, to 
 be inferred by the jury from such external facts and cir- 
 cumstances as in the ordinary course of life would satisfy 
 men of sound judgment. The courts have never presumed 
 to lay down any arbitrary rule requiring some specific sort 
 of evidence conclusive to the point, and excluding all other 
 testimony. Whatever fact can give probable indication of 
 the moral fact to be ascertained is relevant and must go to 
 the jury, unless excluded by some general rule of evidence. 
 Of its weight the jury are the judges. Whenever the exist- 
 ence «f fraudulent intent is in issue, the intent is to be in- 
 ferred 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 defini- 
 tion. The legal test is the sufficiency of the evidence to satisfy 
 the understanding and conscience of the jury. Absolute meta- 
 
 2 Stoddard z'. Butler, 20 Wend. 507, /^i^ Senator Verplanck. 
 
POSSESSION. 
 
 75 
 
 pliysical and demonstrative certainty is not essential to proof 
 By circumstances. It is sufficient if such circumstances pro- 
 duce moral certainty to the exclusion of reasonable doubts.^ 
 
 §85. Keview of Authorities. Twyne's Case.— The ques- 
 tion, having thus far been considered on principle, will 
 now be examined in the light of the authorities. 
 
 The earliest case under the statute is Twyne's case. ^ 
 This was a criminal prosecution in the Star Chamber, 
 where the court was the judge of both, the law and the 
 facts, and, consequently, there is not that discrimination 
 between law and fact which is found in trials at law. 
 This case arose as follows : Pierce was indebted to Twyne 
 in £400, and was indebted also to Chamberlin in £200. 
 Chamberlin brought an action of debt against Pierce, and, 
 
 ICole V. White, 25 Wend, sri, S. 
 C. 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- 
 ally assist and check each other, 
 seems to be the safest, and, conse- 
 quently, the wisest. The construc- 
 tions of the judges on the intention 
 of the party may often be too 
 speculative and refined, and not al- 
 together just in their application to 
 every case. Their rules may have 
 too technical a cast, and become in 
 operation too severe and oppres- 
 sive. To judge accurately of motives 
 and intentions does not require a. 
 master's skill in the science of the 
 law. It depends more on the 
 knowledge of the passions and of 
 the springs of human action, and 
 may be the lot of ordinary experi- 
 ence and sagacity." And then 
 adds: "I can not forbear adding, 
 that among the many eminent 
 public services and titles to lasting 
 legal and literary honors of this 
 venerable and distinguished jurist, 
 his unjform and zealous guardian- 
 
 ship of Ihe trial by jury, even to 
 the last hour of his judicial life, is 
 conspicuous and remarkable. Emi- 
 nent above his cotemporaries for 
 profound and extensive legal 
 science, bringing to the considera- 
 tion of every important point at 
 once the black-letter lore of our an- 
 cient common law, and the varied 
 range of its subsequent changes, 
 together with the legal reason of 
 the Roman code, down to the ap- 
 plication 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 fore- 
 most to confess that there was still 
 something that books can not 
 teach — that the knowledge of the 
 motives and springs of human ac- 
 tion can be gained from everyday 
 experience better than from judi- 
 cial 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." 
 
 23 Co. 80, S. C. Moore 638 (1602). 
 
76 POSSESSION. 
 
 pending the writ, Pierce being possessed of goods and 
 chattels of the value of £300, in secret made a general 
 deed of gift of all his goods and chattels, real and personal, 
 whatsoever, to Twyne in satisfaction of his debt. Not- 
 withstanding 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 Cham- 
 berlin 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 to 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 posses- 
 sion in the donor is a sign of trust." These remarks show 
 that the retention of possession was at that time simply 
 regarded as a m'ark of fraud, similar in its character and 
 effect to secrecy, the pendency of a suit, unusual clauses, 
 and 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 
 
POSSESSION. 77 
 
 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 retained in this case 
 was not a mere naked possession, but a possession imply- 
 ing 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 im- 
 plication of ownership, and jus disponendi ; but that is a 
 very different species of possession from mere naked pos- 
 
 § 86. In Backual v. Roistou,^ — Brewer, a supercargo of a 
 ship which was to go a voyage to the Bast 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 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 sort of goods. The ship after three 
 years returned home but it so happened that Brewer died 
 upon the sea in his return home, and Eoiston, who was a 
 creditor of his by judgment for £1,500, obtained before 
 
 iMcDona v. Swiney, 8 Ir. Law 2Prec. Ch. 285, (1709). 
 
 (N. S.) 73- 
 
78 POSSESSION. 
 
 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 plaintiflfs there- 
 upon brought their bill to have an account and discovery 
 of the goods and satisfaction for the produce and advan- 
 tage that was made thereof. Upon these facts the court 
 said : " That the trust of these goods appeared upon the 
 very face of the bill of sale ; that though they were sold to 
 the plaintiffs, yet they trusted Brewer to negotiate and sell 
 them for their advantage, and Brewer's keeping possession 
 of them was not to give a false credit to him, but for a 
 particular purpose agreed upon at the time of sale ; that 
 here the plaintiffs are presently 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 
 the court, 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, such sale is fraudulent 
 and void as to creditors, and that the law has been always 
 BO held." Of this remark. Savage, C. J.,' justly observes : 
 "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. 
 
 § 87. In Stone v. Grubham,^ which was an action of 
 ejectment, Eobert Casey, who was possessed of a lease for 
 years, made a gift of all his lands and chattels, including 
 
 iHall V. Tuttle, 8 Wend. 375. 2 2 Buls. 217, s. C. i Rol. Rep. 
 
 3 (1615). 
 
POSSESSION. 79 
 
 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 Winiiing- 
 ton's case; if it was an absolute conveyance and a continu- 
 ance in possession afterwards, this shall be adjudged inlaw 
 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 in universalibns, 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 Bliz. 
 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 
 
80 . POSSESSION. 
 
 tlie 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, therefore, 
 clear how the question of fraud arose in the case. In the 
 next place, the question is not made to turn upon the pos- 
 session 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, con- 
 ceded, that the rule in regard to the' retention of possession 
 is not applicable to leases or other interests in land.'' The 
 report of this case in RoUe's 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 consideration 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 possession 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 ob- 
 served that the transaction in this case was sustained. 
 
 § 88. Lady Lambert's Case.— The distinction between a 
 mortgage and an absolute deed is also made in Lady Lam- 
 bert's case.2 There it is said that "If A., bonafid^ 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 
 
 1 Cadogan v. Kennett, Cowp. v. De Mattos, t Burr. 467; Phetti 
 432; Ryall V. Rolle, i Ves. 348, s. c. place v. Sayles,^ Mason 312. 
 I Atk. 165, I Wils. 260; Worseley 2Shep. Touch. 65. 
 
POSSESSION-. 81 
 
 covenant with A. that lie 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 conveyance is not fraudulent at the time of making of it, 
 it shall never be said to be fraudulent for any matter ex 
 post facto." 
 
 § 89. In Meggot v. Mills,^ 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 Ms 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 victuallej;, 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 Wil- 
 son's had been assigned to any other creditor, the keeping 
 of the possession of them had made the bill of sale fraud- 
 ulent 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." 
 
 li Ld. Raym. 286, S. c. 12 Mod. that such was the general rule of 
 
 159 (1697) law, to which he was establishing an 
 
 2Mr. Pierce says: "This indicates exception." Pierce on Fraudulent 
 
 plainly the opinion of , Lord Holt Mortgages of Merchandise, sec. 19. 
 
82 POSSESSION. 
 
 § 90. In Cole t. Dayies,^ 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 con- 
 dition 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." 
 
 § 91. The case of Ryall v. Rolle, 1 Ves. 348, 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 con- 
 dition the creditors stood in their relation to conditional 
 sales or mortgages by their debtors to their prejudice, 
 where the mortgagor continued in possession of the goods 
 mortgaged, and the statute governing this matter is 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 convey- 
 ances 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 concur- 
 rent circumstances it appeared the title deeds were not left 
 to defraud creditors, but upon reasonable and honest pur- 
 poses, or left with the vendor not so as to deceive touching 
 his substance, that, being accompanied with other circum- 
 stances, could not be pronounced a badge of fraud. There- 
 fore, it lay open upon this to determine whether fraudu- 
 lent 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 difficult, unless in very special 
 cases, to assign a reason why an absolute or conditional 
 vendee of goods should leave them with the vendor unless 
 
 ii Ld. Raym. 724 (1698). 
 
POSSESSION. 83 
 
 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 difference. But it is in- 
 sisted there are several cases where there is a distinction 
 as to this possession after sale between conditional and ab- 
 solute conveyances of land or goods. That of lands is not 
 applicable to a case of goods. The case cited for this was 
 Stone V. G-rubham, 2 Buls. 226, and 1 Eol. Rep. 3. but no 
 argument from thence, unless the possession of land and 
 goods, after a conveyance was on the same footing. Pos- 
 session is not otherwise a badge of fraud unless as calcu- 
 lated 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 ai 
 will, as every mortgagor is of a mortgage before the con- 
 dition is broken. Every one desiring credit entitles to an. 
 inquiry into his substance, and, therefore, because the pos- 
 session 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 land- 
 lord. But, though from all these cases it does appear that 
 in the construction of the 13 Bliz. there is no distinction 
 between conditional and absolute sales of goods, if made 
 with intent to defraud creditors, yet a court of equity or a 
 jury are left at large to construe whether it was made with 
 such intent or not." These remarks admit of but one con- 
 struction — the retention of possession is not regarded as 
 decisive, but the question of fraud is to be left to the jury 
 to determine from all the circumstances of the case. 
 
84 POSSESSION. 
 
 § 93. The case of Worseley V. DeMattos^ 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."^ 
 
 93 Martin V. Podger etal.^ was an action for trespass. Ver- 
 dict was given in favor of the plaintiff, and the question 
 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. The defendants seized the goods in the exe- 
 cution of a writ against the son. Lord Mansfield 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. There- 
 fore, 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." 
 
 ii Burr, 467 (1753). express tenor of the deed Slader 
 2In this case a feigned issue was was to have the absolute order and 
 ordered in chancery, to determine disposition as before. In fact he 
 whether one Slader, who had mort- was permitted to continue in pos- 
 gaged his entire stock and malerials, session and act as owner. They 
 and by the instrument had author- who dealt with him trusted to his 
 ized the mortgagee to take posses- visible trade and stock. They 
 sion upon default, had committed trusted to the bankrupt law, that 
 an act of bankruptcy. It was de- he could neither have sold nor 
 cided that the transfer was fraudu- mortgaged; and in case of a misf or- 
 ient under the statute of Elizabeth. tune, that his effects must be 
 Lord Mansfield appears to have equally distributed. They were im- 
 based the decision largely on the posed upon by false appearances." 
 fact that the mortgagor retained the 82 W. Bl. 701, S. C. s Burr. 2631, 
 jus disponendi, saying: "By the (1770). 
 
POSSESSION. 85 
 
 From tlie report of tMs case in Burrows' Reports, it ap- 
 pears that tlie bill of sale was considered fraudulent in fact. 
 It is there stated that, for want of proof of the judgment, a 
 verdict was found for the plaintiff, 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 likewise of opinion that this re- 
 covery in this action, brought by the father upon a fraudu- 
 lent bill of sale, merely colorable, not a real, fair transac- 
 tion, but leaving the possession in the son, and fraudulent , 
 even at common law, independent of the statute of 13 Bliz. 
 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 shameful thing to set tip this fraudulent, color- 
 able bill of sale as a real conveyance of theprpperty." Upon 
 the motion for a new trial. Lord Mansfield said: "The ver- 
 dict arises from a slip and inadvertence; it is against law 
 and justice. The plaintiff has no merits. The bill of sale 
 was fraudulent; the son remained in possession. The 
 recovery is manifestly contrary to reason and justice." 
 
 § 94. Cadogan v. Kennett,^ was an action of trover, brought 
 by th^ plaintiffs, who were trustees under the marriage 
 settlement of Lord Montfort, against Kennett, who was a 
 judgment creditor of Lord Montfort's, and the other 
 defendants who were sheriff's oflScers, to recover certain 
 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 
 household goods belonging to Lord Montford, at his lord- 
 ship's house in town, were conveyed to plaintiffs, as 
 trustees, for the use of Lord Montfort for life, remainder 
 to Lady Montfort for life, remainder to the first and other 
 
 l2 Cowp. 432 (1776). 
 
86 POSSESSION. 
 
 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 suflBcient to pay all the debts he owed 
 at that time, and had no idea of disappointing any 
 creditor. Kennett was a creditor of Lord Montfort's at 
 the time of the settlement. At the trial Lord Mansfield 
 thought the possession of Lord Montfort was not fraudu- 
 lent, 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 com- 
 mon law. But if the transaction be not bona fide, the cir- 
 cumstances 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 con- 
 sidered as circumstances of fraud. The statute says not a 
 word about possession. But the law says, if after a sale 
 of goods the vendor continue in possession, and appear as 
 the visible owner, it is evidence of fraud, because goods 
 pass by delivery, but it is not so in the 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 trans- 
 action, or whether it is a trick and contrivance to defeat 
 creditors. An argument, however, is drawn from the pos- 
 session 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." 
 
 § 95. Edwards v. Harben.— From this review of the author- 
 ities it will be seen that down to the time of Edwards v. 
 Harben, there was not a single case in which a transaction 
 
POSSESSION. 87 
 
 was held to be fraudulent on tlie grounds of possession 
 alone, and tliat the obiter dicta of Coke, in Stone v. Grrub- 
 ham, and of Holt, in Meggot v. Mills, and the remarks of 
 Sir Edward Northey, in Bucknal v. Roiston, are all that 
 can be found to support the doctrine that the retention of 
 possession is conclusive evidence of fraud. 
 
 Edwards v. Harben^ was an action of assumpsit for 
 goods sold to the defendant's testator. It was proved that 
 Mercer in his lifetime was indebted to the plaintiff in the 
 sum of £22 18s. 6d, for goods sold and delivered, and to 
 the defendant in the sum of £191 for money lent. Mercer 
 offered to the defendant a bill of sale of his goods, 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.^ 
 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. BuUer, 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 
 
 I2 T. R. 587 (1788.) shall preserve the creditors from 
 2ln this case BuUer, J., imagines having possession, I will retain the 
 the following proposition from the security from the real ownership, 
 creditor to the debtor: "If you will Give me the command of the prop- 
 put me in a situation to be safe erty, you shall have it to hold out 
 against your other creditors, I will to the world and your creditors as 
 leave you in that which shall in- your own." . 
 duce them not to attack you. You 
 
88 POSSESSION. 
 
 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 
 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 
 
 .1 Bamford v. Baron, 2 Term. Rep. The court held, in accordance with 
 
 594, was a case in which the debtor, the doctrine of Edwards v. Har- 
 
 having conveyed his stock in trade ben, that the sale was void not- 
 
 to trustees, still retained possession withstanding the agreement to ac- 
 
 and sold the goods, but he claimed count for profits, and, as stated in 
 
 that it was part of the agreement the text, granted a new trial, re- 
 
 that he should account for the prof- versing the decision which upheld 
 
 its gained by such transactions. — the validity of the sale. 
 
POSSESSION. 8& 
 
 want of possession was consistent witli 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, that, in point of 
 law, is fraudulent. On the other hand, there are casea 
 where the vendor has continued in possession and the bill 
 of sale has not been adjudged fraudulent if the want of im- 
 mediate possession be consistent with the deed."^ 
 
 § 96. Argument in Edwards v. Harben. — 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 Bliz. 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 constitutes a part of the original transaction, 
 continued in the possession and disposition of the goods 
 mentioned in the bill of sale until his death. In consider- 
 ing this question, the two following principles may be sup- 
 ported: 1st. Whenever the vendor is found in the actual 
 possession of goods which he has sold, such continuance in 
 possession is prima facie evidence of an intent to delay, 
 
 lln Martindale v. Booth, 3 B. at an execution sale were left by 
 
 andAd.4g8 (1832), there was a bill of the purchaser in the judgment 
 
 sale of the furniture and fixtures of debtor's possession, and some time 
 
 a tavern, possession and use being afterwards they were levied on as 
 
 retained by the vendor. From the the property of the judgment 
 
 nature of the articles, possession debtor, by a writ issued under a 
 
 and use did not imply power of sale subsequent judgment. The case 
 
 or disposition. In this case the was distinguished from Edwards v. 
 
 conveyance was held valid. Parke, Harben, it appearing that in the 
 
 J., referred to the rule laid down in case at bar the jus disponendi was 
 
 Edwards v. Harben, by Butler, J., absent. The dictum of BuUer, J., 
 
 that ' if there is nothing but the in that case, to the effect that "un- 
 
 absolute conveyance without pos- less possession accompanies and 
 
 session, that, in point of law, is follows tte deed, it is void" was 
 
 fraudulent," as merely dictum. interpreted as being applicable only 
 
 In Macdona v. Swiney, 8 Irish to the circumstances of the particu- 
 
 Law Rep. 73 (1858) goods purchased lar case. > 
 
90 . POSSESSION. 
 
 hinder or defraud creditors, and throws it on the other 
 party to rebut it by showing that the continuance in posses- 
 sion 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 mere manual occupation, but also the dis- 
 position 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 * 
 false credit. Visible possession is the only criterion of per- 
 sonal 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 neces- 
 sarily implies that the sale was not real, or that the consid- 
 eration was not adequate; otherwise the vendee would not 
 risk his property and give up part of his purchase for noth- 
 ing. 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 accom- 
 modation, or as instruments of trade, that his creditors 
 should be aware of his situation." 
 
POSSESSION. 91 
 
 § 97. Summary.— From these remarks it will be seen that 
 possession alone was simply considered prima facie evi- 
 dence of fraud. But the possession in this case was a pos- 
 session implying ownership and jus disponendi. There was 
 an a'ctual, positive agreement that the vendor was not only 
 to keep possession of the goods, but to deal With them as 
 his own. It was the case of a trader who was daily sell- 
 ing goods, and whose business it was to sell, and the bill of 
 sale covered his stock in trade.^ The other cases in Eng- 
 land, where the transaction has been considered fraudulent 
 on account of the retention of possession, are of the same 
 character. In Paget v. Perchard^ the vendor kept a public 
 house. The bill of sale was of all his effects, including all 
 the liquors in the house as well as the furniture. After the 
 execution of the bill of sale the vendor sold liquors in the 
 usual way of his trade, received the money, and did not 
 account for it. Lord Kenyon held that allowing the vendor 
 to execute acts of ownership after parting with all his 
 property by the bill of sale was suflBcient evidence of fraud. 
 In. Wordall v. Smith* the vendor made a bill of sale of all 
 his effects, consisting of his household furniture and his 
 stock in trade as a publican, but continued to carry on the 
 business as usual for several weeks. The money received 
 for sales was placed in a till to which he had access. Ryall 
 V. Eolle^ and Worsley ■». De Mattos were also cases where 
 traders mortgaged their stock in trade, and after the exe- 
 cution of the mortgages continued to carry on their trade 
 and sell the property for their own benefit.^ On the other 
 
 iMacdona v. Swiney, 8 Ir. Law the assignment. If this case should 
 
 (N. S.) 73. be considered good law in England 
 
 2i Esp. 205 (1795). now, it would te placed on a differ- 
 
 3i Campb. 332 (1808). ent ground. Reed v. Blades, 5 
 
 *i Ves. 348, 1 Atk. 165, I Wils. 260. Taunt. 212, supports the distinction 
 
 5The only exception to these re- stated in the text. Doubts as to what 
 
 marks is Bamford v. Baron, 2 T. R. was really decided in was Edwards 
 
 594, note. That was an assignment v. Harben are raised by the remarks 
 
 for the benefit of creditors, and the of Buller, J., in Bullet's N. P. 258, 
 
 debtor was permitted to carry on and Hazelinton v. Gill, 3 T. R. 620, 
 
 the trade for a certain period, and note, 3 Doug. 415; Weaver v. Joule, 
 
 account to the trustee for all the 91 E. C. ti. 309, S. 0. 3 C. B. (N. S.) 
 
 profits of the trade from the date of 309. 
 
92 
 
 POSSESSION. 
 
 hand, in none of the cases where the transaction has been 
 sustained notwithstanding the retention of possession, was 
 the vendor allowed to sell the goods for his own benefit.-^ 
 As the other cases in England simply constituted excep- 
 tions to the doctrine laid down in Edwards v. Harben, until 
 it was finally settled that the retention of possession was 
 only presumptive evidence of fraud,^ it is not necessary. 
 
 In Edwards v. Harben, the ground 
 chiefly relied on in argument is, 
 that by allowing the vendor to re- 
 tain possession after the sale as ap- 
 parent 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 consti- 
 tutes fraud, for then every one who 
 lends or hires property to another, 
 a merchant who furnishes a shop- 
 keeper Tlvith 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 
 property in the debtor, they are 
 prevented from taking proper 
 means to enforce their demands. 
 But in that case the debtor con- 
 veyed 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 as the fraud 
 on such creditors. (Smith v. Henry, 
 1 Hill, i6, 2 Bailey, Ii8.) 
 
 lEastwood V. Brown, Ry. & 
 Mood. 312; Hoffman v. Pitt, 5 Esp. 
 22; Eveleigh v. Purrsford, 2 Mood. 
 & Rob. 539. The only exception is 
 
 Benton v. Thornhill, 2 Marsh. 427, 
 S. C. 7 Taunt. 149. 
 
 *In Kidd v. Rawlinson, 2 Bos. 
 and Pul. 59 (1800), the creditor ad- 
 vanced money to one Aburn to pur- 
 chase furniture. Aburn gave a bill 
 of sale of the furniture as security 
 for the money so advanced. Aburn 
 was left in possession of the furni- 
 ture. • The creditor's claim was sus- 
 tained as against a subsequent pur- 
 chaser with notice. Lord Eldon 
 cited with approval Buller's synopsis 
 of Twyne's case, as follows : "But 
 yet the donor continuing in posses- 
 sion is not in all cases a mark of 
 fraud; as where a donee lends his 
 donor money to buy goods and at 
 the same time takes a bill of sale of 
 them for securing the money." 
 (Buller's Nisi Prius.) 
 
 In Arundel v. Phipps, 10 Ves. 139, 
 Lord Eldon said: "The mere cir- 
 cumstance of possession of chattels, 
 however familiar it may be to say 
 that it proves fraud, amounts to no 
 more than that it is prima facie 
 evidence of property in the man 
 possessing, until a title, not fraudu- 
 lent, is shown." 
 
 "No case has decided that a bill 
 of sale unaccompanied by the pos- 
 sion may not under certain circum- 
 stances be fair and valid." Steel v. 
 Brown, i Taunt. 381. 
 
 "I perfectly agree that possession 
 is to be much regarded, but that is 
 with a view to ascertain the good or 
 bad faith of the transaction." Lati- 
 mer e. Batson, 4 B. and C. 652. 
 
POSSESSION. 93 
 
 in tMs connection, to trace tliem any further. For the pur- 
 pose of understanding the course of the decisions upon this 
 subject, it should be borne in mind that the rule laid down 
 by the court in that case was that the possession must be 
 consistent with the deed. As this principle was addressed 
 merely to the form of the transaction, it was readily com- 
 plied with by the insertion 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.^ A rule that could be thus easily evaded 
 was of course practically worthless, and a modification was 
 found to be necessary. 
 
 § 98. In Vredenbergh v. White,^ Barrow v. Paxton^ and 
 Beals V. Gruernsey,* it was held that possession was only 
 prima facie evidence of fraud, and open to explanation. In 
 Sturtevant v. Ballard.^ the bill of sale contained a stipula- 
 tion that the vendor should have the use and occupation of 
 the articles for three months. Kent, Oh. J., said : "The 
 ijuestion 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 pos- 
 session 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 h'ad not immediately 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 ap- 
 
 "The not taking possession was 2i Johns. Cas. 156 (1799). 
 
 in some measure indicative of 3g Johns. 258 (1810). 
 
 fraud, but was not conclusive." *8 Johns. 446 (1811), 5 Am. Dec. 
 
 Hoffman v. Pitt, 5 Esp. 22. 34S. 
 
 iWooderman v. Baldock, 8 6g Johns. 337 (1812). , 
 Taunt. 676; Martindale v. Booth, 3 
 B. and A. 498. 
 
94 POSSESSION. 
 
 pearing on the face of the deed, is necessarily valid. There 
 must he some sufficient motive, and one 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 posses- 
 sion 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 con- 
 clude that a voluntary sale of chattels, with an agreement 
 either in or out of the deed that the vendor may keep pos- 
 session, is, except in special cases to be shown to and ap- 
 proved by the court, fraudulent and void as against credit- 
 ors. This is clearly not one of those cases." Hamilton v. 
 Russell,^ preceded this case in point of time, but this case 
 is the leading one in America^ upon this subject. 
 
 § 99. In Wickham t. 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* 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 
 one circumstance in proof of fraud, and it is accounted for." 
 
 § 100. Bissell v. Hopkins.— The question arose again in. 
 Bissell V. Hopkins,^ and Savage, Ch. J., said : " The question 
 
 iCranch. 309. Marsh. 643, 20 Am. Dec. 189; Plant- 
 
 aciow v. Woods, 5 S. & R. 27s, ers' Bank v. Borland, 5 Ala. 531. 
 9 Am. Dec. 346; Coburn v. Picker- 3i2 Johns. 320 (1815). 
 
 ing, 3 N. H. 415, 14 Am. Dec. 375; 42 Cow. 431 (1823). 
 
 Patten v. Smith, 5 Conn. 196, s. c. 63 Cow. 166 (1824), 15 Am. Dec. 
 
 4 Conn. 450; Gibson v. Love, 4 Fla. 259. 
 217; Hundley v. Webb, 3 J. J. 
 
POSSESSION. 95 
 
 in every case is, whether the act done is a bona fide 
 transaction, or whether it is a trick and contrivance to 
 defeat creditors. The possession by the vendor of personal 
 chattels after the sale is not conclusive evidence of fraud. 
 The vendee may, notwithstanding, upon proof that the sale 
 was bona fide and for a valuable consideration, and that the 
 possession of the vendor after such sale was in pursuance 
 of some agreement not inconsistent with honesty in the 
 transaction, hold under his purchase against creditors. A 
 good reason is given, in my judgment, why the vendor 
 was not at once stripped of his property, as thereby his 
 power of acquiring the means to pay his debts would have 
 been taken from him." 
 
 After this decision there were six decisions in New York 
 holding possession to be only presumptive 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 ». Ballard. 
 But the genius of the law demands that conflicting cases , 
 shall be reconciled wherever reconciliation is possible. 
 Accordingly, in Divver v. McLaughlin,^ 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 creditors. The 
 mortgage in this case, after forfeiture without 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 dis- 
 pute about the facts ; it is a question for the court, there- 
 
 I2 Wend. S96 (1829), 20 Am. Dec. 655. 
 
96 POSSESSION. 
 
 lore, to decide whether the mortgage was valid or void as 
 against creditors." 
 
 The same principle was assorted in Jennings «. Carter^ 
 and in Archer «. Hubbell.^ 
 
 § 101. Revised Code. — This was the condition of the ques- 
 tion at the time of the adoption of the revised code.^ In 
 the revision of the statute law it was attempted to settle 
 all doubts and discrepancies by positive legislation and 
 strict definition. Accordingly the revisers recommended 
 that "all sales or mortgages not accompanied by an imme- 
 diate delivery, and followed by an actual and continued 
 change of possession, should be void against the creditors 
 of the vendor," and this without any exception and exclud- 
 ing all explanation. But the same considerations of natu- 
 ral 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, 
 «nabling 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 
 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 
 
 I2 Wend. 446 (1829), 20 Am. Dec. % Wend. 514 (1830). 
 
 635- 81830. 
 
POSSESSION. 97 
 
 enacted should be a question of fact and not of law.^ 
 These enactments were thought to have settled the law 
 conclusively, but they merely afforded a new and 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.^ 
 
 § 102. Hall V. Tuttle^ arose before the adoption of the 
 Revised 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,* the court said: "It is 
 incumbent upon the vendee to repel the presumption of 
 fraud by showing some satisfactory reason for his omis- 
 sion 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.' It was also held that 
 the distinction between conditional and absolute sales was 
 abolished,^ and that the mere accommodation of the 
 parties was not a satisfactory explanation, so that the only 
 effect of the enactments seemed to be to make the rule 
 more rigorous. 
 
 iRev. Stat. 136, § 5. committed. (Smith v. Acker, 23 
 
 ^Stoddard v. Butler, 20 Wend. Wend. 653, per Senator Hopkins.) 
 507; 7 Paige, 163; Smith v. Acker, 38 Wend. 375-fi*32)- 
 
 23 Wend. 653, per Senator Ver- ^g Wend. 198 (1832). 
 
 planck. The ground of all the ^Gardner v. Adams, 12 Wend, 
 
 errors of the decisions upon this 297 (1834); Doane v. Eddy, 16 Wend, 
 
 subject would seem to be the desire 523 (1837); Randall v. Cook, 17 
 
 of the court to establish a code of Wend. 53 (1837); Stevens v. Fisher, 
 
 morals, which shall put it out of 19 Wend. 181 (1838); Beekman v. 
 
 the power of persons to commit Bond, 19 Wend. 444 (1838.) 
 fraud, rather than to carry out the ^Gardner v. Adams, 12 Wend, 
 
 intention of the legislature to pro- 297, (1834); Boane v. Eddy, 16 
 
 vide means of detecting fraud when Wend. 523, (1837); Randall v. Cook, 
 
 17 Wend. 53. 
 
98 POSSESSION. 
 
 § 103. Stoddard v. Butler. — The question arose again in 
 Stoddard v. Butler.^ Butler, who was a creditor of Stoddard, 
 instituted suit and obtained judgment; but between the 
 commencement of the suit and the recovery of the judg- 
 ment, 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 fraudu- 
 lent. From this decree the respondents appealed to the 
 Court of Errors, and thus for the first time was the ques- 
 tion raised in that court, the other decisions having been 
 rendered in the Supreme Court. The decree of the chan- 
 cellor was afiirmed by a divided court; twelve foraflBrmance 
 and twelve for reversal. Two questions were raised; first, 
 whether possession alone rendered the transfer void, and 
 second, whether the property was disproportionate 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 aflSrmance — subsequently adopted 
 the opinion that the weight of the evidence to repel the 
 presumption was for the determination of the jury, and 
 two stated that their votes in this case were given upon 
 the ground of fraud in fact.^ The important 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 
 
 1 2o Wend. 507, s. c. 7 Paige 163 zsmith v. Acker, 23 Wend. 653 
 
 (1838). (1840). ' 
 
POSSESSION. 99 
 
 subject, but bis 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. 
 
 § 104. Smith v. Acker. — The question came before it 
 again in Smith v. Acker^ and was the only point in the 
 case. Bell made a mortgage to Smith & Hoe and remained 
 in possession. The sheriff seized the property on an exe- 
 cution against Bell. Smith & Hoe brought an action of 
 replevin. The defendant moved for a nonsuit. The plain- 
 tiff insisted that the question of fraudulent intent should 
 be submitted as a question of fact to the jury. This the 
 judge refused to do, and ordered a nonsuit, and the judg- 
 ment was subsequently affirmed by the Supreme Court. 
 The plaintiff thereupon sued out a writ of error, and 
 removed the case into the Court of Errors. The judg- 
 ment 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. Fish- 
 er,2 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 proposition 
 was argued more at length in White v. Cole.^ He said : 
 " The quo animo is a question of fact for the jury when an 
 explanation is offered ; that is, as I understand the phrase, 
 not any and everything which may be called an explana- 
 tion, but evidence pertinent to the question of fact. It 
 
 I23 Wead. 653 (1840). 824 Wend. 116 (1840). 
 
 %9 Wend. 181, 
 
100 POSSESSION. 
 
 stands on the footing of any other question of fact to be 
 determined by the jury. If the testimony offered be per- 
 tinent 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 that of the jury. The question 
 arises upon the competency of the evidence, not the suffici- 
 ency. The statute gives 'the court no power to determine 
 what particular facts shall or shall not be sufficient evidence 
 of honest intention. The statute says nothing one way or 
 the other as to what facts shall persuade or what shall be 
 pertinent. For all this the judge is left 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 anaount, shall not be allowed to excuse the con- 
 tinuance of possession ; and that it cannot be so regarded 
 by a jury, however necessary the use of the property may 
 be for the debtor. These two circumstances prove nothing 
 of themselves. They do not make an explanation, nor can 
 the jury regard them as sufficient to overturn the presump- 
 tion 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,^ 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 the question of the fact of fraudulent intent was excluded 
 from the consideration of the jury, whose right it was to 
 pass upon its weight and sufficiency. 
 
 § 105. Randiill v. Cook.— The controversy, however, was 
 not yet terminated. Up to this time it had been carried on 
 in a spirit of candid discussion, but no-w it took a partially 
 
 iCole V. White, 26 Wend. 511, s. C. 24 Wend. 116 (1841). 
 
(Sf OCT 
 7 
 
 POSSESSION. \ IDI^^^^ 
 
 \ ^v ^ . 
 
 personal tone. In Randall v. Cook.i Bronson, J., observfer^LilB^^ 
 "Had it been declared fifty years ago that if a man con- 
 veyed Ms personal chattels and still kept them himself, 
 Tinder any pretense whatever, the transaction should be 
 deenaed 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 ques- 
 tions of this kind, and it would, moreover, have rendered 
 a most important service in the cause of good morals by 
 removing all temptations to the numberless frauds which 
 have been committed for the purpose of placing property 
 beyond the reach of legal process." Commenting upon 
 these remarks, Senator Dickinson^ said: "If, at the same 
 time, the law had laid its interdiction upon all human in- 
 tercourse 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 :* 
 "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 fraudu- 
 lent 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." 
 
 § 106. In Butler y. Yan Wyct,^ Bronson, J., delivered a 
 dissenting opinion, and, observing that his remarks had 
 been made the text for spirited and witty commentary, and 
 styling the opinion of Senator Hopkins the prevailing 
 opinion, held that the decision of the Court of Errors 
 should be disregarded. 
 
 § 107. In Ilanford v. Archer, ^ the Court of Errors, adher- 
 ing to its previous decisions, felt called upon to notice and 
 
 I17 Wend. S3, overruled in Smith SSmith v. Acker, 23 Wend. 653. 
 
 «. Acker, supra. ii Hill 438. 
 
 ^Stoddard v. Butler, 29 Wend, B4 Hill 271, s. c. i Hill 347 (1842). 
 507, s. c. 7 Paige 163. 
 
102 POSSESSION. 
 
 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 the jury 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 artiiicial, restricted and erroneous in- 
 terpretation 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 explanation and 
 that the court should try it. The former said that the issue 
 was a question of intent and that the jury should try it. 
 
 It would seem as though the questions were clearly and 
 unmistakably settled, but it was subsequently asserted in 
 Randall v. Parker^ that all the cases upon thi^subject were 
 reconcilable. This attempt at a reaction, however, was 
 only temporary, and the point is now considered as finally 
 and conclusively determined.^ Thus terminated one of the 
 most remarkable controversies in the whole annals of juris- 
 
 I3 Sandf. 69. Y. 293; Van Buskirk v. Warren, 39 
 
 STliompson v. Blanchard, 4 N. N. Y. 119, 34 Barb. 457, 13 Abb. Pr. 
 y. 303; Miller v. Lockwood, 32 N. 145, 4 Abb. Ap. 457. 
 
POSSESSION. 103 
 
 prudence, a controversy extending over a period of more 
 tlian two centuries, and engaging the attention of the most 
 eminent jurists of the times. 
 
 § 108. Yirginia. — 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 de- 
 cisions in one other State. The doctrine that possession is 
 conclusive evidence of fraud was held for a long time in 
 Virginia.^ But in Land v. Jeffries,^ Cabell, J., said : "The 
 question does not by any means involve any doubt as to 
 the effect of the mere circumstance of actual possession 
 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 transac- 
 tion fraudulent in law. Everybody admits that the mere 
 possession of personal property after an absolute convey- 
 ance 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 other testimony, and, conse- 
 quently, the possession of the vendor is susceptible of ex- 
 planation as to its character, for the purpose of freeing it 
 from the imputation of fraud." 
 
 "Many cases might be stated as examples for showing 
 the operation of this principle, but a single one will suffice. 
 A man purchases the chattel of another for full considera- 
 tion and bona fide. The chattel at the time of the sale is 
 on the farm of the vendor. It is the expectation and in- 
 tention of both parties that it shall be removed with all 
 reasonable dispatch, and it remains, in the meantime, in 
 the possession of the vendor, without any regard to his 
 
 lAlexander v. Deneale, 2 Munf. Leigh 320; Mason v. Bond, 9 Leigh 
 
 341; Williamson v. Farley, Gilmer, 181, 33 Am. Dec. 243; Tavenner v. 
 
 15; Robertson v. Ewell, 3 Munf. i; Robinson, 2 Rob. 280. 
 
 Glasscock v. Batton, 6 Rand. 78, 18 '^5 Rand. 211, S. C. 599. 
 Am. Dec. 703; Lewis v. Adams, 6 
 
104 POSSESSION. 
 
 convenience, but solely to await tlie reasonable conveni- 
 ence of the vendee in removing it. But before the vendee 
 can thus remove it an execution comes out against the goods 
 and chattels of the vendor, and the sheriff, finding the 
 chattel in his possession, levies the execution upon it and 
 sells it. In an action of trespass brought by the vendee 
 against the sheriff, if the vendee exhibits nothing but his 
 absolute bill of sale, the sheriff may show that notwith- 
 standing the bill of sale the chattel was found by him in 
 the vendor's possession. Now, as the possession of personal 
 chattels is ^rma/aeie evidence' of property in or of trust 
 for the person possessing, the possession of the vendor 
 thus exhibited would be prima facie inconsistent with the 
 avowed object of the absolute conveyance to the vendee, 
 and would, therefore, be prima facie evidence of a trust for 
 the vendor, and that the absolute conveyance was intended 
 as a cover to disguise and conceal that trust, and thereby 
 to delay, hinder and defraud creditors. But still, this 
 would be prima facie evidence only, liable to be rebutted 
 by other testimony." 
 
 "If therefore, the vendee shall prove that the possession 
 of the vendor was connected with no motive of benefit or 
 advantage to the, vendor, but was for the reasonable con- 
 venience of the vendee only, and was intended to continue 
 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 vend- 
 or is shown not to be inconsistent with the purpose of the 
 absolute deed, and thus the whole foundation for the in- 
 ference 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 convey- 
 ance that the chattel should remain in the possession of the 
 vendor for a long or a short time, to be used by him during 
 that time as if he were the owner. Such a possession by 
 the vendor would be manifestly inconsistent with the deed, 
 for the deed purports to be for the sole and exclusive bene- 
 
POSSESSION. 
 
 105 
 
 fit of the vendee, whereas the possession as explained by 
 the agreement shows a trust for the benefit of the vendor." 
 
 § 109. Prevailing Doctrine.— The doctrine was still further 
 relaxed in the cases of Sydnor v: Gree^ and Lewis v. Adams.^ 
 The confidence of the profession in the former decisions 
 was thus shaken, and doubts and uncertainty were pro- 
 duced. It was therefore deeined best that the whole sub- 
 ject should be reviewed, and the law finally settled so as to 
 preclude future controversy. In Davis v. Turner^ it was 
 determined that possession simply raised a presumption of 
 fraud, and that the weight and suflSciency of the evidence 
 to rebut it was for the consideration of the jury. 
 
 The preponderance of the authorities is, at the present 
 time, in favor of this doctrine.* 
 
 H I/eigh, 535. 
 
 26 Leigh, 320. 
 
 34 Gratt. 422 (1848). 
 
 *The following note contains a 
 summary of the present law on this 
 point in the various jurisdictions. 
 
 England: "The more modern 
 doctrine, then, appears to be that 
 the mere fact of the vendor's or 
 donor's continuance in possession 
 of personal property after an abso- 
 lute sale or gift affords only aprima 
 facie presumption of fraud. It is 
 such a presumption, therefore, as 
 may be explained away or rebutted, 
 or, taken in connection with all the 
 circumstances of the case, it may 
 amount to a conclusive presump- 
 tion of fraud. In short, the ques- 
 tion of fraud or no fraud depends 
 upon all the special circumstances 
 of each particular case." May on 
 Fraudulent Conveyances, 121, 2nd 
 edition, London, 1886. 
 
 And where the vendor's posses- 
 sion is consistent with the deed, "it 
 is not even an evidence of fraud." 
 Ibid. 123: 
 
 SeeArundell v. Phipps, 10 Ves. 
 139; Martindale v. Booth, 3 B. and 
 
 A. 498; Eastwood V. Brown, Ry. 
 and Mood. 312; Orlabar v. Harwar, 
 Comb, 348; Hoffman v. Pitt, 5 Esp. 
 22; Latimer v. Batson, 4 B. and C. 
 652; Benton v. Thornhill, 2 Marsh. 
 427, s. C. 7 Taunt. 149; Martin ». 
 Podger, 2 W. Bl. 701; Carr v. Bur- 
 diss, 5 Tyrw. 309; Eveleigh v. Purrs" 
 ford, 2 Mood, and Rob. 539; Lindon 
 V. Sharp, 6 M. and G. 895; Mac- 
 dona V. Swiney, 8 Ir. Law (N. S.) 73. 
 
 Alabama: "The true rule would 
 seem to be that possession of per- 
 sonal property after a sale remain- 
 ing with the vendor is a badge of 
 fraud which, if unexplained, would 
 be sufficient to authorize a. verdict 
 against the vendee. But if ex- 
 plained, then the title of the vendee 
 will not be affected by the posses- 
 sion of the vendor." Mayer v. Clark, 
 40 Ala. 269; McGhee v. Importers 
 and Traders Nat. Bank, 93 Ala. 192, 
 9 So. 734. 
 
 Arizona: Under the Rev. Stat. 
 failure to make immediate delivery 
 is only prima facie evidence of 
 fraud. Liebes v. Steffey, Ariz., 
 32 Pac. 261. 
 
106 
 
 POSSESSION. 
 
 § 110. Actual, Not Merely Constructive, Change of Posses- 
 sion. — The change of possession required by the rule is an 
 
 Arkansas: "The continuance in 
 possession by the vendor was a 'sign 
 •of trust' as was said in Twyne's 
 case, but according to the rule 
 adopted by this court not a conclu- 
 sive sign. Itis prima facie evidence 
 ■of a secret trust which is fraudulent 
 as to creditors, and if unexplained 
 the presumption becomes conclu- 
 sive." Valley Distilling Co. v. At- 
 kins, 50 Ark. 291,7 S. W. 137; Stixz/. 
 Chaytor, 55 Ark. 116, 17 S. W. 707; 
 Collins V. I/ightle, 50 Ark. 97, 6 S. 
 W. 596. 
 
 California: Under Sec. 3440 of 
 the Civil Code, the sale is conclus- 
 ively presumed to be fraudulent 
 unless there be an actual and con- 
 tinued change of possession. 
 Murphy v. Mulgrew, 102 Cal. 547, 36 
 Pac. 857; Dean v. Walkenhorst, 64 
 Cal. 78, 28 Pac. 60. 
 
 Colorado: Under i Mills Ann. 
 Stat. Sec. 2027, every transfer not 
 accompanied by immediate deliverj' 
 and followed by actual and con- 
 tinued change of possession is con- 
 clusively presumed to be void. 
 Sweeney z/. Coe, 12 Colo. 485, 21 Pac. 
 705; Anders v. Barton, 3 Colo. App. 
 324, 33 Pac. 142. 
 
 But if the sale be conditional 
 grantor may retain possession until 
 the condition is complied with. 
 Roberts i. Hawn, Colo., 36 Pac. 886. 
 
 Connecticut: In Huebler v. 
 .Smith, 62 Conn. 186, 190, 25 Atl. 658; 
 the court quoted with approval the 
 dicta of Loomis, J., in Capron v. 
 Porter, 43 Conn. 388, as follows: 
 "That the retention of possession 
 of personal property by the vendor 
 after a sale raises a. presumption of 
 fraud which cannot be repelled by 
 any evidence that the transaction 
 was bona fide and for valuable con- 
 .sideration, is still adhered to and 
 
 enforced by the courts of this state 
 with undiminished vigor as a most 
 important rule of public policy." 
 And the cfourt added: "And cer- 
 tainly this assertion remains as true 
 now as it was then." 
 
 In the same case the court held , 
 after a thorough review of the 
 whole subject, that possession by 
 the debtor after an execution sale , 
 is within neither the letter nor the 
 spirit of the rule; but that in such 
 a case if the execution creditor 
 is the purchaser and permits the 
 debtor to remain in possession after 
 the sale such conduct raises an in- 
 ference against the validity of the 
 transaction which it would be neces- 
 sary for him to overcome by proof 
 that the judgment was for an honest 
 debt and that there was no collusion. 
 
 Delaware: The statute requires 
 delivery to and continued possession 
 by the vendee. Bowman v. Her- 
 ring, 4 Harr. 458; Miller v. Lacy, 
 7 Houst. 8, 30 Atl. 640; Taylor v. 
 Richardson, 4 Houst. 300. As to 
 what constitutes continued posses- 
 sion see Groff v. Cooper, 6 Houst. 36. 
 
 District of Columbia: Leaving 
 goods sold in the possession of vend- 
 or does not render the transaction 
 fraudulent as against creditors. At 
 most itis only prima facie ervid^nc^ 
 of fraud. Justh v. Wilson, 19 D. 
 C. 529- 
 
 Florida: Vendor's possession of 
 personalty seems to be conclusive 
 evidence of fraud. Gibson v. Love, 
 4 Fla. 217; Sanders v. Pepoon, 4 
 Fla. 465. 
 
 Georgia : Debtor's continued 
 possession unexplained is a badge 
 of fraud. Collins v. Taggart, 57 Ga. 
 357; Pool V Gramling, 88 Ga. 653, 
 16 S. E. 52. 
 
POSSESSION. 
 
 107 
 
 actual, and not a merely constructive change. An actual 
 
 Illinois : A sale of personalty, 
 possession remaining in the seller, 
 is conclusively presumed fraudu- 
 lent. Hewett V. Griswold, 43 111. 
 App. 43 ; Gillette v. Stoddart, 30 111. 
 App. 231 ; Huschle v. Morris, 131 
 111. 587, 23 N. E. 643. 
 
 But not as to subsequent credit- 
 ors. Moore v. Montelius, 29 111. 
 App. 197; Ives V. Halce, 14 111. App. 
 389; Woolridge ®. Gage, 68 111. 159. 
 
 Idaho : Every transfer of per- 
 sonal property other than things in 
 action and every lien thereon other 
 than a mortgage, unless accom- 
 panied by immediate delivery and 
 followed by continued possession 
 is conclusively presumed to be 
 fraudulent and void as against 
 creditors and subsequent bona fide 
 purchasers. Harkness v. Smith, 
 2 Idaho 952, 28 Pac. 423; Murphy v. 
 Braase, Idaho, 32 Pac. 208. 
 
 Chattel mortgages without change 
 of possession are void unless they 
 are accompanied by an affidavit that 
 they are not made to defraud credit- 
 ors, and recorded. 
 
 Indiana: "The provision in our 
 statute that the retention of posses- 
 sion of personal property by the 
 seller shall create a presumption 
 that such sale is fraudulent as to 
 creditors does not create a conclu- 
 sive presumption." "The 
 
 greatest force which can be given to 
 the fact that there is no change of 
 possession is that it imposes on the 
 party claiming title the burden of 
 showing good faith." Rose v. Col- 
 ter, 76 Ind. 592, following Kane v. 
 Drake, 27 Ind. 29; Seavey v. 
 Walker, 108 Ind. 78, 9 N. E. 347, 
 see note. 
 
 Iowa: Under the statute no trans- 
 fer of personal property is valid 
 without change of possession, unless 
 it be recorded. Boothby v. Brown, 
 
 40 la. 104; Mcintosh «. Wilson, 81 
 la. 339, 46 N. W. 1003. 
 
 Kansas: By statute the retention 
 of possession by vendor is presumed 
 to be fraudulent, but this presump- 
 tion may be rebutted by evidence 
 showing good faith and a sufficient 
 consideration. Phillips v. Reitz, i5 
 Kans. 396. 
 
 Kentucky: "This court has held, 
 in an unbroken line of decisions,that 
 an absolute sale of personal proper- 
 ty is, in judgment of law, per se 
 fraudulent as to purchasers from 
 and creditors of the seller, unless 
 the possession of the property ac- 
 companies and follows the title." 
 Van Meter v. Esiill, 78 Ky. 456. 
 
 The Kentucky courts, however, 
 look upon the rule with disfavor, 
 and, while enforcing it, do not ex- 
 tend it to cases which do not come 
 strictly within its provisions, ibid. 
 
 I^ouisiana: Under the Louisiana 
 code, "simulation," which is the 
 concert of two or more persons to 
 give to one thing the appearance of 
 another for the purpose of fraud, 
 is presumed from the continued 
 possession of the vendor. This pre- 
 sumption is not conclusive but the 
 burden of proof is on the vendee to 
 show good faith. Cochrane v. Gil- 
 bert, 41 La Ann. 735, 6 So. 731; 
 Spivey z/. Wilson, 31 La. Ann. 653; 
 Devonshire v. Gauthreaux, 32 La. 
 Ann. 1132. 
 
 Maine: Possession by vendor "is 
 only evidence of fraud, to be sub- 
 mitted to a jury. It is often of a 
 very decisive character and from 
 such evidence the jury may infer 
 fraud and pronounce the sale void." 
 Reed v. Je'wett, 5 Gr. 84; Reed v. 
 Reed, 70 Me. 504. 
 
 Maryland: The authorities seem 
 to support the doctrine that unless 
 bill of sale be recorded, non-deliv- 
 
108 
 
 POSSESSION. 
 
 change, as distinguislied from tliat wMcli by the mere 
 
 ery is prima, facie, but not conclu- 
 sive, evidence oif fraud. Hudson v. 
 Warner, 2 H. and G. 415; Bruce v. 
 Smith, 3 H. and J. 499. 
 
 Massachusetts: "Possession of 
 the vendor is only evidence of fraud, 
 which, with the manner of the oc- 
 cupation, the conduct of the parties, 
 and all other evidence bearing on 
 the question of fraud, is for the 
 consideration of the jury. ' ' Ingalls 
 V. Herrick, 108 Mass. 354, 11 Am. 
 Rep. 360, following a uniform 
 series of decisions; Ashcroft «. 
 Simmons, Mass., 40 N. E. 171. 
 
 Michigan: The statute provides 
 that sales of personal property, 
 possession being retained by vend- 
 or, shall be deemed fraudulent as 
 to creditors unless shown by pur- 
 chaser to have been made in good 
 faith. In construing this statute 
 the Michigan Supreme Court said: 
 "The question of change of posses- 
 sion must in all cases be considered 
 in connection with the other facts 
 in the case. The situation of the 
 parties, their relation to each other, 
 the kind of property, its suscepti- 
 bility of an actual change, must all 
 be considered, and that must be 
 done which will indicate an actual 
 and continued change of possession, 
 and where this is not the case the 
 burden of proof is upon the pur- 
 chaser to show that the sale was 
 made in good faith and without any 
 intent to defraud creditors." Kipp 
 V. Lamoreaux, 81 Mich. 304, 45 N. 
 W. 1002; Buhl Iron Works v. Teu- 
 ton, 67 Mich. 623, 35 N. W. 804; 
 Clark V. Lee, 78 Mich. 221, 44 N. W. 
 260. And see Aspell v. Hosbein, 
 98 Mich. 117, 57 N. W. 27; where 
 owner was kept out of possession 
 and could not make delivery on ac- 
 count of the wrongful levy of de- 
 fendant constable. 
 
 Minnesota: Under the statute, 
 where a sale of chattels is not 
 accompanied by an immediate de- 
 livery and followed by an actual 
 and continued change of posses- 
 sion, it merely raises a presumption 
 that the sale was fraudulent, which 
 it is competent for the vendee to 
 overcome by showing that it was in 
 fact made in good faith. Mackellar 
 V. Pillsbury, 48 Minn. 396, 51 N. W. 
 222 ; Cortland Wagon Co. v. Sharvy, 
 52 Minn. 216, 53 N. W. 1147; Lath- 
 rop V. Clayton, 45 Minn. 124, 47 N. 
 W. 544. 
 
 Mississippi: "It is because of 
 the necessary tendency to mislead 
 and deceive the public that a reten- 
 tion of possession, after an abso- 
 lute sale, is a badge of fraud as 
 against the creditors of the vendor. 
 .... But the retention of posses- 
 sion by the mortgagor or grantor in 
 the deed of trust is not fraudulent 
 per se. It is consistent with the 
 deed and cannot deceive. But in 
 order that the possession may be 
 innocent the deed must be recorded 
 or notice of it brought home to the 
 party before he has the' dealings 
 with the mortgagor or grantor." 
 Hilliard v. Cagle, 46 Miss. 341. 
 
 Missouri: After several changes, 
 both in legislative enactment and 
 judicial construction, it id" settled in 
 Missouri that the retention of per- 
 sonal property by the vendor after 
 sale is fraud per se. Claflin 0. Ros- 
 enberg, 42 Mo. 439, 97 Am. Dec. 
 336; Collins v. Without, 35 Mo. 
 App. 585. 
 
 But the statute upon which this 
 rule is based has no reference to 
 assignments. Scofield v. Burkett, 
 90 Mo. 465, 2 S. W. 838. 
 
 Montana: "An assignment with- 
 out a delivery of the goods and 
 chattels assigned, and without any 
 
POSSESSION. 
 
 109 
 
 intendment of the law follows the transfer of the title, is 
 
 actual and continued change of 
 possession, is as against the credit- 
 ors of the assignor, the merest 
 nullity." Botcher «. Berry, 6 Mont. 
 452, 13 Pac. 45. 
 
 Nbbraska: "The presumption of 
 fraud raised by the statvite from 
 a want of change of possession is 
 not conclusive but may be entirely 
 rebutted by proof of good faith 
 and absence of intent to defraud." 
 First Nat. Bank v. Lowrey, 36 Neb. 
 290, 54 N. W. 571; Paxton ». Smith, 
 41 Neb. 56, 59 N. W. 690. 
 
 Nbvaba: Under the statute the 
 Nevada courts "have always held 
 that a failure to deliver and retain 
 possession of the mortgaged prop- 
 erty is conclusive evidence of a 
 fraud in law." Wilson v. Hill; 17 
 Nev. 401, 30 Pac. 1076; Tognini v. 
 Kyle, 17 Nev. 209, 30 Pac. 829, 45 
 Am. Rep. 442. 
 
 NEW Hampshire: "When the 
 sale is absolute, possession and use 
 afterwards by the vendor is always 
 prima facie, and if unexplained, 
 conclusive evidence of a secret 
 trust." Coburn v. Pickering, 3 N. 
 H. 425, 14 Am. Dec. 375. 
 
 "It is unnecessary to cite authori- 
 ties to the point that a sale of chat- 
 tels is invalid as to creditors of the 
 vendor, when the property is 
 allowed J;o remain in his use and 
 possession." Doucet v. Richardson, 
 N. H., 29 Atl. 636. 
 
 New Jersey : Possession by 
 vendor or mortgagor \s 'prima facie 
 evidence of fraud, but may be 
 explained. Miller v. Pancoast, 29 
 N. J. L. 250; Runyon v. Groshon, 
 12 N. J. Bq. 86. 
 
 New York: "It is familiar law 
 that a failure to take delivery and 
 possession pursuant to the statute 
 merely raises a presumption of 
 fraud, which may be rebutted by 
 
 proof of a bona fide purchase for 
 value; and that if evidence be given 
 to repel the arbitrary inference of 
 fraud, the question is for the jury 
 and their decision is conclusive." 
 Judge Pryor, in Stark v. Grant, 16 
 N. Y. Supp. 526. But in the absence 
 of evidence of good consideration 
 or good faith the presumption is 
 conclusive. Carr v. Johnson, 59 
 Hun 620, 12 N. Y. Supp. 799. 
 
 North Caroi,ina: Retention of 
 possession by vendor is evidence of 
 fraud but not conclusive. Rea v. 
 Alexander, 5 Ire. 644; Phifer v. 
 Erwin, 100 N. C. 59, 6 S. B. 672. 
 
 North Dakota: Retention of 
 possession by vendor is by statute 
 conclusively presumed to be fraud- 
 ulent and void as against creditors 
 and bona fide subsequent pur- 
 chasers. Morrison v. Oium, 3 N. 
 D. 76, 54 N. W. 288. 
 
 Ohio: "We regard it to be per- 
 fectly well settled law that on a sale 
 or mortgage of personal property a 
 continuance of possession by vend- 
 or or mortgagor is only prima 
 facie evidence of fraud which may 
 be explained away or rebutted by 
 showing that such possession was 
 honest and fair." Collins v. Myers, 
 16 Oh. 552; Thorne ». Bank, 37 Oh. 
 St. 254. 
 
 Oki,ahoma : Retention of pos- 
 session by vendor is conclusively 
 presumed to be fraudulent by stat- 
 iite. 
 
 Oregon: "Under this provision 
 of the code" (referring to the Ore- 
 gon statute), "the retention of the 
 possession of the property in ques- 
 tion by the vendor after sale, cre- 
 ated a presumption of fraud as 
 against his creditors, not conclusive, 
 however, but a presumption that 
 might be rebutted by making it ap- 
 pear that it was made in good faith. ' ' 
 
110 
 
 POSSESSION. 
 
 an open, visible, public change, manifested by sucli out- 
 ward signs as render it evident that the possession of the 
 
 McCully V. Swackliaramer, 6 Ore. 
 438, 440. Monroe v. Hussey, i Ore. 
 188, in which the presumption of 
 fraud seems to have been held to be 
 conclusive, was decided upon the 
 rules of the common law before the 
 enactment of the present statute. 
 
 PEnnsyi,vania: "The result of 
 the cases seems to be that when one 
 comes into the possession of per- 
 sonal property, those who deal with 
 him on the credit of such property 
 must inquire into the origin and 
 nature of his possession so as to 
 know whether he is a purchaser or 
 a bailee. When it is learned that he 
 is a purchaser, his continued pos- 
 session of the same goods affords 
 a basis for the presumption of con- 
 tinued ownership, and this is a con- 
 clusive presumption in favor of 
 bona fide purchasers and creditors. ' ' 
 Stephens v. Gifford, 137 Pa. St. 219, 
 228, 21 Am. St. Rep. 868, 20 Atl. 
 542, see cases cited. The opinion of 
 Mr. Justice Williams in this case 
 contains a remarkably able discus- 
 sion of the rule, and the various 
 modifications which attend its ap- 
 plication in Pennsylvania. See also 
 Buckley v. Duff, 114 Pa. St. 596, 8 
 Atl. 188. 
 
 Rhode Isi^and: The retention 
 of personal property by a vendor 
 after sale, is, as against his credit- 
 ors, presumptive but not conclu- 
 sive evidence of fraud. Mead v. 
 Gardiner, 13 R. I. 257. 
 
 South Carolina: Retention of 
 possession is evidence of fraud, but 
 not conclusive. See Pregnall v. 
 Miller, 21 S. C. 385, 53 Am. Rep. 684; 
 where the cases are discussed and 
 the rule laid down in a strong opin- 
 ion by Mr. Chief Justice Simpson. 
 
 SonTH Dakota: Under the stat- 
 
 ute transfers by vendor without 
 delivery and actual and continued 
 possession are conclusively pre- 
 sumed to be fraudulent. Longley 
 V. Daly, I S. D. 257, 46 N. W. 247. 
 
 Tennessee: "Possession is only 
 evidence of fraud and the bona, 
 fides of the transaction may be 
 shown by proof." Wiley v. Lash- 
 lee, 8 Humph. 717-720. 
 
 Texas: "The rule laid down in 
 this State is that possession on the 
 part of the seller is not i-caxAper se 
 but is prima facie evidence of 
 fraud, subject to be rebutted by 
 other evidence explanatory of the 
 possession, showing that it is con- 
 sistent with a fair transaction. 
 Edwards «. Dickson, 66 Tex. 613, 
 616, 2 S. W. 718; citing numerous 
 Texas authorities; Ivandman «. 
 Glover, Tex. Civ. App., 25 S. W. 
 994; Griffin v. Wright, i App. Civ. 
 Cases, sec. 639; Tillman v. Janks, 4 
 App. Civ. Cases, sec. 172; Weir Plow 
 Co. V. Carroll, 4 App. Civ. Cases, 
 sec. 178. 
 
 United States: In Warner v. 
 Norton, 20 How. 448, the Supreme 
 Court, while drawing a distinction 
 between the case ,at bar and Hamil- 
 ton V. Russell, I Cr. 309, yet did not 
 affirm the doctrine of the latter 
 case, and said: "It would seem to 
 be difficult, on principle, to main- 
 tain that the possession of goods is, 
 per se, fraud, to be so pronounced 
 by the court, as that cuts off all 
 explanation of the transaction, - 
 which may have been entirely 
 unexceptionable." See Smith v. 
 Craft, 123 U. S. 436, 8 S. Ct. 196. And 
 see also Etheridge v. Sperry, 139 U. 
 S. 266, 277, II S. Ct. 565. 
 
 Vermont: a sale is fraudulent 
 in law unless there is change of 
 
POSSESSION. 
 
 Ill 
 
 owner, as such, has wholly ceased.^ The possession of the 
 vendor is always constructively the possession of the 
 vendee; the possession of an agent is constructively the pos- 
 
 possession; possession in the vendee, 
 open, notorious and exclusive. 
 Weeks v. Prescott, 53 Vt. 57. 
 
 Virginia: Possession is only 
 prima facie evidence of fraud. 
 Norris v. Lake, 89 Va. 513. 
 
 Washington: By statute, no sale 
 of personalty is valid as against 
 creditors or purchasers, when 
 vendor is left in possession, unless 
 some memorandum thereof be 
 recorded in ten days. Whiting 
 Mfg. Co. V. Gephart, 6 Wash. 615, - 
 
 34 Pac. 161; Banner v. May, 2 Wash. 
 221, 26 Pac. 248. 
 
 West Virginia: The Virginia 
 rule is followed. Bradley v. Mar- 
 tin, 28 W. Va. 773, and cases cited; 
 Curtin v. Isaacsen, 36 W. Va. 391, 
 15 S. E. 171; Blackshire v. Pettit, 
 
 35 W. Va. 547, 14 S. E. 133- 
 Wisconsin: Possession is only 
 
 prima fade evidence of fraud. 
 Whitney v. Brunette, 3 Wis. 621; 
 Smith V. Welch, 10 Wis. 91; Bullis 
 V. Borden, 21 Wis. 136; Bond v. 
 Seymour, i Chand. 40; Sterling v. 
 Ripley, 3 Chand. 166. 
 
 ICutter V. Copeland, 18 Me. 127. 
 See section 122 post, et seq. 
 
 "The general rule undoubtedly is 
 that the purchaser of goods must, 
 for the protection of the public, 
 take such possession as is usual and 
 reasonable, in view of all the cir- 
 cumstances of his purchase. If he 
 neglects this obvious duty, then, as 
 between himself and subsequent 
 vendees or creditors, he must bear 
 the loss resulting from his neg- 
 lect." Stephens v. Gifford, 137 Pa. 
 St. 219-232, 21 Am. St. Rep. 868, 20 
 Atl. 542. 
 
 "It may be collected from the 
 authorities that a mere symbolical 
 
 delivery of personal property, with- 
 out any outward or visible change 
 of possession within a reasonable 
 time, such as the nature and situa- 
 tion of the property admit of, will 
 not constitute such change of pos- 
 sessioui as the statute requires, 
 especially where the alleged vendor 
 continues to sustain the same rela- 
 tion to the property, in respect of 
 its possession, as before.'' Dyer v. 
 Balsley, 40 Mo. App. 562. 
 
 "In order to accomplish the 
 change of possession which is. 
 essential to a transfer of the title, 
 the property itself must be removed 
 from the custody and control of the 
 vendor, wherever removal be possi- 
 ble, and notwithstanding any 
 expense or hardship this removal 
 mav entail." Burchinell v. Wein- 
 berger, Colo. App., 34 Pac. 911. 
 But see Lathrop v. Clayton, 45 
 Minn. 124, 47 N. W. 544. 
 
 When the goods were in the 
 vendor's house, and vendor gave to 
 vendee a bill of sale, a list of the 
 goods, and the key of the house, 
 and on the next day the vendor 
 left the house with his family, 
 leaving the goods there, it was held 
 to be a sufficient change of posses- 
 sion. Dyer v. Balsley, 40 Mo. App. 
 559. And when a stock of goods is 
 sold, and purchaser takes posses- 
 sion by numerous acts of ownership, 
 the mere failure to change the name 
 on the sign is not evidence of fraud 
 sufficient to avoid the sale. Huels 
 V. Boettger, 40 Mo. App. 310. 
 
 As to what acts of ownership con- 
 stitute a sufficient change of pos- 
 session see also Hart v. Mead, 84 
 Cal. 244, 24 Pac. 118; Morgan v. 
 Ball, 81 Cal. 93, 22 Pac. 331; Hogan 
 
112 
 
 POSSESSION. 
 
 session of his principal. If the change is merely con- 
 structive, the presumption of fraud arises.^ When the 
 facts are uncontroverted, the question whether their effect 
 is to constitute an actual change of possession is a ques- 
 tion of law.^ If the property is left in the possession of 
 the vendor's agent, the change of possession is only con- 
 structive.^ If the vendee has possession of the property 
 conjointly with the vendor, there is no actual change of 
 possession.* If the vendor was never the ostensible 
 owner,^ or if the property was in the possession of 
 another,^ then the omission to take possession raises no 
 presumption of fraud. If there is a change within a 
 reasonable time after the sale, the transfer will be deemed 
 
 V. Cowell, 73 Cal. 211, 14 Pac. 780; 
 Gould V. Huntley, 73 Cal. 399, 15 
 Pac. 24; Bailey v. Johnson, 9 Colo. 
 365, 12 Pac. 209; Butler v. Howell, 
 15 Colo. 249, 25 Pac. 313; Simmons 
 Hardware Co. v. Pfeil, 35 Mo. App. 
 256; Tuckwood V. Hantliorn, 67 
 Wis. 326, 30 N. W. 705. 
 
 As to what acts are insuflBcient 
 see Seavey v. Walker, 108 Ind. 78, 
 9 N. E. 347; Comaita v. Kyle, 19 
 Nev. 38, 5 Pac. 266. 
 
 ISeavey v. Walker, supra; Lesem 
 V. Herriford, 44 Mo. 323; Hanford 
 V. Artcher, 4 Hill 271, s. C. i Hill 
 347; Randall v. Parker, 3 Sandf 69; 
 Otis V. Sill, 8 Barb. 102; Burnham 
 V. Brennan, 42 N. Y. Sup. 49; Wil- 
 son V. Hill, 17 Nev. 401, 30 Pac. 
 1076; Donovan v. Gathe, Colo. App., 
 32 Pac. 436; Grant v. Lewis, 14 Wis. 
 487, 80 Am. Dec. 785; Osen v. Sher- 
 man, 27 Wis. 501. 
 
 If goods are not reasonably capa- 
 ble of actual delivery, constructive 
 delivery is sufficient. Buckley v. 
 Duff. 114 Pa. St. 596, 8 Atl. 688. 
 
 SMcCarthy v. McQuade, 31 N. Y. 
 Sup. 387; Woodworth v. Hodgson, 
 56 Hun 236, 9 N. Y. Supp. 750; 
 Brown v. Mitchell, 102 N. C. 347, 
 9 S. E. 702. But under the Cal- 
 
 ifornia Code what constitutes suffi- 
 cient change of possession is a 
 question for the court. Claudius v. 
 Aguirre, 89 Cal. 501, 26 Pac. 1077. 
 Under a similar statutory provision 
 it seems that in Colorado the ques- 
 tion is for the jury under the 
 instruction of the court. Butler v. 
 Howell, 15 Colo. 249, 25 Pac. 313. 
 "Now whether there has been a 
 change of possession of personal 
 property following a sale in any 
 case, so that the sale will be valid 
 as against the creditors of the vend- 
 or, is a mixed question of law and 
 fact. After the facts are all ascer- 
 tained the law determines whether 
 or not there has been such a change 
 of possession." Mead c. Noyes, 44 
 Conn. 487. 
 
 As to what acts justify the sub- 
 mission to the jury of the question 
 of change of possession see Butler 
 V. Howell, Brown v. Mitchell, supra. 
 See also sections 113 and 124. 
 
 SBrunswick v. McClay, 7 Neb. 
 137. See sections 118, 127 and 128. 
 
 ^Osen V. Sherman, 27 Wis, 501. 
 See section 125. 
 
 ^Burling v. Patterson, 9 C. & P. 
 570. 
 
 SSmith V. Post, 3 N. Y. Supr. 647. 
 
POSSESSION. 
 
 113 
 
 valid.^ But if a change of possession does not take place 
 within a reasonable time after the sale, a change prior to 
 an execution is not suflScient to repel the presumption of 
 fraud.^ 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.* It has been held that no presumption of a 
 fraudulent intent arises where the sale took place before 
 the debt arose ; * but this can not be so, for the natural tend- 
 ency of the retention of possession is to give the vendor a 
 false credit. E,egistrati6n^ of the instrument of transfer 
 is a substitute for possession.^ 
 
 lAllen V. Cowan. 23 N. Y. 502, 
 S. C. 28 Barb. 99; Trieber v. Andrews, 
 31 Ark. 163. 
 
 2Stimson v. Wrigley, 86 N. Y. 332; 
 Dubeter v. Swartwood, 17 N. Y. 
 Supr. 34. 
 
 ^Lesem v. Herriford, 44 Mo 323. 
 
 ^Knight v. Forward 63 Barb. 311. 
 
 6A11 the states except Louisiana, 
 where a chattel mortgage is un- 
 known, have statutes providing for 
 the registration of chattel mortgag- 
 es, and generally such registration 
 is a substitute for actual delivery 
 and change of possession. Etheridge 
 V. Sperry, 139 U. S. 266, 11 S. Ct. 
 565; WhittleshofEer v. Straus, 83 Ala. 
 517, 3 So. 524; Frank v. Miner, 50 
 111. 444; Corning v. Rinehart Medi- 
 cine Co., 46 Mo. App. 16; Sword v. 
 Low, 122 111. 487, 13 N. E. 826; Mor- 
 rill V. Sanford, 49 Me. 566; Cahoon 
 V. Miers, 67 Md. 573, 11 Atl, 278; 
 Hughes V. Menafee, 29 Mo. App. 
 192, 31 Cent. L.J. 395; Bullock v. 
 Williams, 16 Pick. 33; Morrow v. 
 Reed, 30 Wis. 81; Bruce v. Smith, 3 
 H. & J. 499; Hambleton v. Hay- 
 ward, 4 H. & J. 443; Bogard v. 
 Gardley, 12 Miss. 302; Harrington 
 V. Erittain, 23 Wis. 541; Fister v. 
 Beall, I H. & J. 31; Smith ». 
 
 McLean, 24 Iowa 322; Hughes v. 
 Corey, 20 Iowa 399; Kuhnz;. Graves, 
 9 Iowa 303; Barker v. Hall, 13 N. 
 H. 298; Call V. Gray, 37 N. H. 428, 
 85 Am. Dec. 141; Prankhouser v. 
 Ellet, 22 Kans. 27, 31 Am. Rep. 171. 
 
 But in New York, Minnesota and 
 Nebraska, the registration of the 
 mortgage, while it is notice, is held 
 to be not equivalent to actual deli- 
 very and change of possession, and 
 vendor's possession is always a 
 badge of fraud. Wood v. Lowry, 
 17 Wend. 492;. So. Omaha National 
 Bank v. Chase, 30 Neb. 444, 46 N. 
 W. 513; Horton v. Williams, 21 
 Minn. 187. 
 
 Where actual change of posses- 
 sion occurs, registration is unne- 
 cessary. Reichert v. Simons, 6 
 Dak. 239, 42 N. W. 657; Gill v. 
 Griffith, 2 Md. Ch. 270; Cooper e. 
 Brock, 41 Mich. 488, 2 N. W. 660; 
 Knapp V. Alvord, 10 Paige 205, 40 
 Am. Dec. 241; Siedenbach v. Riley, 
 III N. Y. 560, 19 N. B. 275; Minis- 
 ter ». Price, I F. and F. 686; Gouglj, 
 V. Everard, 2 H. and C. i; Smith v. 
 Wall, 18 L. T. (N. S.) 182. So where 
 the property is not in grantor's pos- 
 session at the time of transfer. 
 Thomas v. Hillhouse, 17 Iowa 67. 
 
114 
 
 POSSESSION. 
 
 § 111. Burden of Proof. — The presumption is not merely 
 a presumption of a fraudulent intent on tlie part of tlie 
 vendor, but also of a concurrence in that intent on the part 
 of the vendee. The possession in the vendor, therefore 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 fraudulent.^ The bur- 
 de;n is then thrown upon the vendee to show, from all the 
 
 As to the effect of actual notice, 
 see section 183 et seq. 
 
 Registration will protect the 
 rights of the mortgagee, even 
 though the mortgagor remove the 
 property to another state. Ord. v. 
 Massey, 48 Kans. 762, 30 Pac. 124, 
 17 I/. R. A. 127, note; Peterson v. 
 Kaigler, 78 Ga. 464, 3 S. E. 655; 
 Keenan v. Stimson, 32 Minn. 379; 
 20 N. W. 364; Lafayette Co. Bank v. 
 Metcalf, 29 Mo. App. 384; Grand 
 Island Banking Co. v. Frey, 25 Neb. 
 66, 40 N. W. 599; Cool V. Roche, 20 
 Neb. 550, 31 N. W. 367; SXas. Ins. 
 Co. V. Aldrich, 26 N. Y. 96; Edgerly 
 V. Bank, 81 N. Y. 203; Jones v. Tay- 
 lor, 30 Vt. 42. 
 
 But such is not the rule in Ala- 
 bama and Michigan, where the 
 foreign record is held to be insuflS- 
 cient notice. Johnson v. Hughes, 
 89 Ala. 588; 8 So. 147; Beall v. Wil- 
 liamson, 14 Ala. 55; Corbett v. Lit- 
 tlefield, 84 Mich. 30, 47 N. W. 581, 
 II Iv. R. A. 95; Boydson v. Good- 
 rich, 49 Mich. 65, 12 N. W. 913. 
 
 The error, neglect or misconduct 
 of the recording oflScer will not im- 
 pair the rights of the mortgagee. 
 Turner v. McFee, 61 Ala. 468; 
 Boyle V. Gould, 73 Cal. 153, 14 Pac. 
 609; Chandler v. Scott, Ind., 26 N. 
 E. 791; Monaghan <e. Longfellow, 81 
 Mev'298, 17 Atl. 74; Appleton Mill 
 Co. V. Warder, 42 Minn. 117, 43 N. 
 W. 791, 31 Cent. L. J. 211 ; Jordan v. 
 Bank, 11 Neb. 499, 9 N. W. 654; 
 Chase v. Bennett, 51 N. H. 428; 
 
 Dodge ». Potter, 18 Barb. 193; 
 Smith V. Waggoner, 50 Wis. 155; 6 
 N. W. 568. 
 
 But in Hibbard v. Zenor, 75 Iowa 
 471, 39 N. W. 714, a contrary rule 
 seems to be implied. But see Kern 
 V. Wilson, 82 Iowa'407, 48 N. W. 919. 
 
 The registration of a mortgage 
 takes effect from the time it is de- 
 posited in the proper oflSce. Heflin 
 «. Slay, 78 Ala. 180. 
 
 Recording will not validate an in- 
 strument tainted with fraud. Gar- 
 rett V. Hughlett, I H. & J. 3; Robin- 
 son V. Elliott, II N. B. R. 553; in re 
 Manly, 3 N. B. R. 291, s. C. 2 Bond 261. 
 
 In Texas, under Art. 4564, R. S., 
 the registration of the bill of sale is 
 equivalent to delivery and change 
 of possession in the case of stock 
 animals running on the range. 
 First Nat. Bank v. Brown, 85 Tex. 
 80, 23 S. W. 862; Black V. Vaughn, 
 70 Tex. 48, 7 S. W. 604. 
 
 As between parties registration is 
 unnecessary. Bacon v. N. W. Mut. 
 Life Ins. Co., 131 U. S. 258, 9 S, Ct. 
 787; Shields v. Schiff, 124 U. S. 351, 
 8 S. Ct. 510. 
 
 Whei;e the law makes no pro- 
 vision for the registration of a bill 
 of sale, such registration is not 
 equivalent to change of possession. 
 Sweeney v. Coe, 12 Colo. 485, 21 
 Pac. 705; Bassinger v. Spangler, 9 
 Colo. 175, 10 Pac. 809. 
 
 IKuykendall v. McDonald, 15 
 Mo. 416; 57 Am. Dec. 212; Blant z/. 
 Gabler, 77 N. Y. 461. 
 
POSSESSION. 115 
 
 circumstances surrounding the transaction, its true charac- 
 ter, in order to repel the presumption of fraud,i and the 
 evidence in explanation ought to be so clear as to leave no 
 room to doubt the fairness of the sale.^ If no evidence is 
 given, the presumption becomes conclusive.^ The presump- 
 tion is a presumption 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 for not changing the possession, is irrelevant so 
 far as it is designed to raise any distinct question for the 
 determination of either the court or the jury. The true and 
 sole inquiry is, whether the presumption of fraud is re- 
 pelled by the evidence.* The court has no power to say 
 what particular facts shall or shall not be sufla.cient evi- 
 dence of honest intention. Its only power is to decide 
 what facts are admissible and relevant to determine the 
 issue. Any facts which impress the mind with a convic- 
 tion 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.^ No explanation can be more satis- 
 factory than that the possession was retained for a fair 
 
 IKuykendall v. McDonald, 15 But when vendee has shown good 
 
 Mo. 416, 57 Am. Dec. 212; Davis v. faith and absence of fraud, he need 
 
 Turner, 4 Gratt. 422; Comstock «. not explain the lack of change of 
 
 Rayford, 20 Miss. 369, s. c. 9 Miss. possession. First Nat. Bank v. Ivow- 
 
 423, 40 Am. Dec. 102; Mills v. Wal- rey, supra. 
 
 ton, 19 Tex. 271; Grant z/. Lewis, 14 2Smith v. Henry, 2 Bailey 118, 
 
 Wis. 487; McCarthy v. McQuade, 31 s. C. i Hill i5; Davis v. Turner, 4 
 
 N. Y. Supr. 387. Where possession Gratt. 422; Jones v. Blake, 2 Hill 
 
 of mortgaged property remains in Ch 629. 
 
 the mortgagor, the burden of proof SCarter v. Graves, 7 Miss. 9; Car- 
 is on the mortgagee, as against third ter z/. Stanfield, 8 Geo. 49; Beers z/. 
 parties, to show good faith. Bannon Dawson, 8 Geo. 556; Allen z;. Cowan, 
 z/. Bowler,34Minn. 416, 26N. W. 237; 23 N. Y. 502, s. c. 28 Barb. 99, 80 
 Houck V. Heinzman, 37 Neb. 463, Am. Dec. 316; Mayer v. Webster, 
 466, 55 N. W. 1062; First Nat. Bank 18 Wis. 393; State v. Smith, 31 Mo. 
 z'.I/Owrey, 36 Neb. 290, 54N. W. 568, 566; State v. Rosenfield, 35 Mo. 
 571; Sperry v. Baldwin, 46 Hun 472; Cheatham z'. Hawkins, 76 N. C. 
 123, II N. Y. St. Rep. 609; Yale v. 335. 
 
 Bond, 45 La. Ann. 997, 13 So. 587; ^Stewart «). Slater, 6 Duer 83. 
 
 A. Baldwin and Co. v. Bond, 45 La. SStoddard v. Butler, 20 Wend. 
 
 Ann. 1012, 13 So. 742. 507, per Senator Dickinson. 
 
116 POSSESSION. 
 
 and honest purpose.^ There is no more satisfactory mode 
 of disproving bad motives than by proving such facts as 
 indicate the existence of other motives, innocent at least, 
 or even laudable.^ The intention of the parties, and the 
 circumstances attending the transaction, may always be 
 shown in order to repel the presumption.-'' All facts or cir- 
 cumstances 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 pa,rties, the facts indicating a fair intent, * the 
 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 hinder, 
 delay or defraud creditors.^ All such proof of facts is sub- 
 ject to the general rules of the law of evidence.^ 
 
 § 112. Consideration — Whether proof of a consideration 
 is essential will depend upon circumstances. Title once ac- 
 quired by gift is not divested by the mere fact that the 
 
 iDavis V. Turner, 4 Gratt. 422. N. W. 1062; Warren ». Carpenter, 
 
 aSmith v. Acker, 23 Wend. 653. 99 Mich. 287, 58 N. W. 308. 
 
 SHoltnes v. Crane, 19 Mass. 607. The fullest latitude should be al- 
 
 *Cole V. White, 26 Wend. 511, s. lowed to the party attacking the 
 
 c. 24 Wend. 116. conveyance to prove fraud. Cox v. 
 
 BSmith V. Acker, 23 Wend. 653; Trent, i Tex. Civ. App. 639, 20 S. 
 
 Callen z/. Thompson, 3 Yerg. 475, W. 1118. 
 
 24 Am. Dec. 587. It is proper to prove any fact 
 
 "In determining the question of which tends to show fraudulent 
 
 good faith it is proper to consider intent. Brittain v. Crowther, C. C. 
 
 the relations of the parties, the sur- A., 54 Fed. 295. 
 
 rounding circtimstances, and the 8Cole v. White, 26 Wend. 511, s. 
 
 manner of the transaction." Houck C. 24 Wend. 116. 
 
 V. Heinzman, 37 Neb. 463, 467, 55 
 
POSSESSION. 117 
 
 donee does not immediately take the property into his ex- 
 clusive possession and appropriate it to his exclusive use.^ 
 But if the condition of the debtor is such at the time the 
 transaction takes place that a gift would not be valid, then 
 proof of a consideration is 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 be- 
 yond 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 con- 
 sideration as against creditors.^ If the consideration is 
 nothing more than what in law is considered a valuable 
 consideration, it will not be suflBcient, because a dispropor- 
 tion between the price paid and the value, when unreason- 
 able, is evidence of a secret trust and creates a presump- 
 tion of fraud.^ Cases in which the question of inadequacy 
 of consideration arises between the grantor and grantee of 
 a deed, where suit is instituted for the purpose of setting 
 aside the grant on the ground of imposition, are not appli- 
 cable in determining a question of the fairness of a con- 
 sideration between a vendee and creditor under the statute 
 concerning fraudulent conveyances. What inadequacy of 
 consideration would induce a court to set aside a convey- 
 ance at the instance of the grantor on the ground of im- 
 position, is an entirely different question from that of the 
 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 con- 
 sidered, there must be a reasonable and fair proportion 
 between the one and the other.* The payment of an ade- 
 quate price for the property affords a strong indication of 
 
 iDanley v. Rector, lo Ark. 211. Kuykendall v. McDonald, 15 Mo. 
 
 2Allen V. Cowan, 28- Barb. 99, s. 416, 57 Am. Dec. 212; Contra, Kel- 
 
 C. 23 N. Y. 502, 80 Am. Dec. 316; ler v. Blanchard, 19 La. An. 53. 
 Hanford v. Artcher, 4 Hill, 271, s. ^Kuykendall v. McDonald, 15 
 
 C. I Hill, 347. Mo. 416, 57 Am. Dec. 212; State «. 
 
 SBryant v. Kelton, i Tex. 415; Evans, 38 Mo. 150. 
 
118 POSSESSION. 
 
 good faith, and is a circumstance to weaken the presump- 
 tion;i but still this alone may not be inconsistent with the 
 existence of a collusive design to impose upon others.^ Any 
 intention to give the debtor a false credit will vit^iate the 
 transaction, for transfers made for the purpose of deceiv- 
 ing creditors are fraudulent.^ 
 
 § 113. 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.* If there is no proof to rebut the presumption, there 
 is nothing to be left to the jury to pass upon.^ If there 
 is any evidence of good faith, the court, in submitting the 
 question, should instruct the jury that, because the pos- 
 session is not changed, the law presumes the transfer to be 
 fraudulent and void as against creditors, and casts the bur- 
 den of disproving fraud upon the person claiming under 
 it.^ If he fails in his evidence to show that the transfer 
 was made in good faith, without any intent to defraud 
 creditors, the presumption of fraud first raised by the law 
 
 iProof of a consideration tends to 2Smith v. Acker, 23 Wend. 653 , • 
 
 rebut the presumption of fraud aris- Bryant «. Kelton, i Tex. 415; Rose 
 
 ing from vendor's retention of pos- v. Colter, 76 Ind. 590. 
 session. Cortland Wagon Co. v. SHolmes v. Crane, 19 Mass. 607; 
 
 Sharvy, 52 Minn. 216, 53 N. W. 1147 D'Wolf v. Harris, 4 Mason 515, a. c. 
 
 (where the consideration was a pre- 4 Pet. 147; Ross v. Crutsinger, 7 
 
 existing debt); McLeod 0. O'Neill, Mo. 245. 
 15 Ky. Law Rep. 152, 22 S. W. 220. *Haven v. Low, 2 N. H. 13, 9 
 
 And when there is no evidence of Am. Dec. 25; Holmes z/. Crane, 19 
 
 fraud except mere retention of pos- Mass. 607; HoUacher 0. O'Brien, 12 
 
 session, it is unnecessary to show N. Y. Supr. 277; Kan. Pac. R. 
 
 consideration as against subsequent R. Co. v. Crouse, 17 Kans. 571. 
 creditors. Bluthenthal v. Magnus, SXift v. Barton, 4 Denio 171; 
 
 97 Ala. 530, 13 So. 7. Curd v. Lewis, 7 Gratt. 185. 
 
 Evidence that the vendor at the ^Griswold 9. Sheldon, 4 N. Y. 
 
 time of the transfer had more than 580; Smith v. Welch, 10 Wis. 91; 
 
 SufiBcient property to pay his debts Smith v. Henry, 2 Bailey, 118; s. C. 
 
 tends to rebut the presumption. i Hill 16; Gibson v. Hill, 21 Tex. 
 
 Rose V. Colter, 76 Ind. 590. 225: Hartman ®. Vogel, 41 Mo. 570. 
 
POSSESSION. 
 
 119 
 
 becomes conclusive. ^ If the verdict is clearly erroneous, 
 the court may grant a new trial.^ 
 
 § 114. 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,^ 
 mortgages,* especially after default,^ deeds containing a 
 
 IKuykendall v. McDonald 15 
 Mo. 416, 57 Am. Dec. 212; Morgan 
 V. Bogue, 7 Neb. 429. The vendor 
 may remain in possession until per- 
 formance 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 vend- 
 or till winter. Clute v. Fitch, 25 
 Barb. 428. 
 
 SVance v. Phillips, 6 Hill 433; 
 Dodd V. McCraw, 8 Ark. 83; 46 Am. 
 Dec. 301; Potter v. Payne, 21 Conn. 
 361; Randall 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 of the court to guiding 
 instead of driving them by instruc- 
 tions and to the power of granting 
 new tuials in cases of plain devia- 
 tion. Davis V. Turner, 4 Gratt. 422. 
 
 SStadtler v. Wood, 24 Tex. 622. 
 
 ^Hombeck v. Vanmetre, 9 Ohio 
 153; Ryall V. RoUe, I Ves. 348, s. c. 
 I Atk. 165, I Wils. 260; Miller v. 
 Pancoast, 29 N. J. 250; Runyon v. 
 Groshon, 12 N. J. Eq. 86; Eveleigh 
 V. Purrsford, 2 Mood. & Rob. 539; 
 Merrill v. Dawson, i Hemp. 563, s. 
 c. II How. 375; Killough v. Steele, 
 I Stew. & Port. 262. Contra, Mit- 
 chell V. Beal, 8 Yerg. 134, 29 Am. 
 Dec. 108; 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. 
 
 SManey v. Killough, 7 Yerg. 440; 
 Bank v. Gourdin, Speer's Ch. 439; 
 Shurtleff v. Willard, 36 Mass. 202; 
 Bogard v. Gardley, 12 Miss. 302; 
 Hankins z/.IngoUs, 4 Blackf . 35; Wis- 
 
120 
 
 POSSESSION. 
 
 stipulation for tlie possession,^ and sales under legal pro- 
 cess,^ whether the purchase is by the plaintiff^ or a third 
 person.* In all transactions of this kind, when a valuable 
 consideration is proved, the only question that remains is 
 
 wall V. Ticknor, 6 Ala. 178; Ravisies 
 V. Alston, 5 Ala. 297; North v. Cro- 
 •well, II N. H. 251; Stimson v. Wrig- 
 ley, 86 N. Y. 332. Contra, Fishburne 
 V Kunhardt, 2 Speers 556. 
 
 iSommerville v. Hortou, 4 Yerg. 
 541, 26 Am. Dec. 242. But the 
 English rule appears to be that 
 when the possession is in accord- 
 ance with the terms of the deed 
 no presumption of fraud arises. 
 "The result of the authorities 
 appears to establish this: that where 
 in strict pursuance of the terms of 
 the agreement or deed, actual pos- 
 session is not given, such want of 
 possession is not per se even an 
 evidence of fraud. In such a case 
 the fraud against creditors must be 
 looked for in the nature of the 
 arrangement itself, and not in the 
 way in which that arrangement is 
 acted on with regard to possession 
 being taken." May on Fraudulent 
 Conveyances, 2nd edition, 123, (I/on- 
 don, i885), citing Reeves v. Capper, 
 5 Bing. N. C. 140; Wooderman v. 
 Baldock, 8 Taunt. 676; Carr v. Bur- 
 diss, 5 Tyrrw. 309; Reed v. Wilmot, 
 5 Moo. and P. 583; Weaver v. Joule, 
 3 C. B. (N. S.) 309; Haselinton v. 
 Gill, 3 T. R. 620-1, per Ashurst, J.; 
 Martindale v. Booth, 3 B. and Ad. 
 498; Alton V. Harrison, L. R. 4 Ch. 
 622; Eastwood J). Brown, Ry. and 
 M. 312. 
 
 But "in order to take advantage 
 of this rule the subsequent acts 
 must be consistent with the deed 
 itself, and not with a parol agree- 
 ment between the parties, for that 
 is in the nature of a secret trust 
 and is always viewed with the great- 
 est suspicion. ' ' May on Fraudulent 
 
 Conveyances, supra. And see also, 
 Hopkins v. Scott, 20 Ala. 179; Hemp- 
 stead V. Johnson, 18 Ark. 123, 65 
 Am. Dec. 458; Clayton z*. Brown, 17 
 Ga. 217; Rozierz/. Williams, 92 111. 
 187. 
 
 2Gardinier v. Tubbs, 21 Wend. 
 169; Floyd V. Goodwin, 8 Yerg. 484, 
 i^Kva.. Dec. 130; Creagh v. Savage, 
 14 Ala. 454; Williams v. Kelsey, 6 
 Geo. 365; Stovall v. Farmers' Bank, 
 16 Miss. 305, 47 Am. Dec. 85; Wood- 
 worth V. Woodworth, 21 Barb. 343; 
 O'Brien v. Chamberlain, 50 O&a. 
 285; Master v. Webb, 26 N. Y. 
 Supr. 172; Betz v. Conner, 7 Daly 
 550; Stimson v. Wrigley, 86 N. Y. 
 336 (under the N. Y. statute); Hueb- 
 ler B. Smith, 62 Conn. 186, 25 Atl. 
 658. Contra, Garland v. Chambers, 
 19 Miss. 337, 49 Am. Dec. 63; Fos- 
 ter V. Pugh, 20 Miss. 416; Ewing v. 
 Cargill, 21 Miss. 79; Wyatt v. Stew- 
 art, 34 Ala. 716; Montgomery v. 
 Kirksey, 26 Ala. 172; Guignard «. 
 Aldrich, 10 Rich. Eq. 253; Ander- 
 son B. Brooks, II Ala. 953; Clark v. 
 Cox, 118 Mo. 652, 24 S. W. 221; 
 Mead v. Conroe, 113 Pa. 220, 5 Cent. 
 Rep. 210, 8 Atl. 374; Bisbing v. 
 Third Nat. Bank, 93 Pa. St. 79, 39 
 Am. Rep. 726; the presumption in 
 such sales being that as the sale is 
 made under the sanction and con- 
 trol of the law, there is no fraud. 
 
 SFarrington Z". Caswell, 15 Johns. 
 430; Gardinier v. Tubbs, 27 Wend. 
 169; Taylor v. Mills, 2 Edw. Ch. 
 318. 
 
 ■iFonda v. Gross, 15 Wend. 628; 
 Breckenridge v. Anderson, 3 J. J. 
 Marsh. 710; Kilby v. Haggin, 3 J. 
 J. Marsh, 208. 
 
POSSESSION. 121 
 
 one of good or bad faith.^ The rule in regard to the re- 
 tention of possession applies to choses in action as well as 
 to personal property,^ especially if they are negotiable.^ 
 
 § 115. 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 pos- 
 session of land may be treated for some purposes as evidence 
 of title, and is regarded as the lowest evidence of title, yet 
 the public look not to the possession, but to the title deeds or 
 the proper records, to obtain proofs of title to such property. 
 Creditors do this, and so does every person instituting an 
 inquiry as to the condition of the title to a particular tract 
 of land. The possession may with perfect consistency be 
 in one person and the title in another. No one need be 
 deceived unless he will. To hold that possession of realty 
 by the vendor after sale is per se presumptive evidence of 
 fraud would be in effect to abolish the distinction known 
 and acknowledged between personal and real property, 
 and to lose sight of the different methods for evidencing 
 the title to the two kinds of property. * But the posses- 
 
 ILatimer ». Batson, 4 B. & C. 652; Browning v. Hart, 6 Barb. 91; Liv- 
 
 Eveleigh v. Purrsford, 2 Mood. & ingston v. I/ittell, 15 Wis. 218. 
 Rob. 539. The reason for the con- SMead v. Phillips, i Sandf. Ch. 
 
 flict among the cases upon the points 83. In many states choses in action ' 
 
 just considered is historical rather are excepted by statute from the 
 
 than logical. The mode of con- rule requiring change of possession, 
 
 veyance was first used to constitute The assignment of the proceeds of 
 
 an exception to the doctri ne of fraud a sale of land by a non-resident, the 
 
 per se, and then some of the courts proceeds being in the hands of his 
 
 losing sight of this fact, considered ageut, is not within the rule requir- 
 
 it as constituting an exception to ing change of possession. Dorsey 
 
 the rule of presumptive evidence. v. Banks, la., 55 N. W. 574. 
 
 2Welsh V. Bekey, i Penna. 57; 4Ryall v. RoUe, i Ves. 348, s. c. 
 
 Woodbridge v. Perkins, 3 Day 364; i Atk. 165, i Wils. 260; Clute v. 
 
 Hall V. Redding, 13 Cal. 214; Currie Newkirk, 46 N. Y. 684; Cadogan v, 
 
 V. Hart, 2 Sandf. Ch. 353; vide Kennett, 2 Cowp. 432; Suiter v. 
 
122 
 
 POSSESSION. 
 
 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.^ Acts of ownership^ or possession 
 for a long time^ may raise a presumption of fraud. 
 
 116. Possession with Jus Disponendi. — Power to Sell in 
 Mortgastes.* — The mere retention of possession of personal 
 
 Turner, lo Iowa 517; Steward v. 
 Thomas, 35 Mo. 202; Hempstead v. 
 Johnson, 18 Ark. 123; 65 Am. Dec. 
 458; Woolen z/. Clarke, 23 Miss. 75; 
 Noble V. Coleman, 16 Ala. 77; Barr 
 V. Hatch, 3 Ohio 527; Smith v. 
 Lowell, 5 N. H. 67; Collins v. Tag- 
 gart, 57 Geo. 355; Tompkins v. 
 Nichols, 53 Ala. 199; Apperson v. 
 Burgett, 33 Ark. 328; Fuller ». Brew- 
 ster, 53 Md. 358. Contra, Peck B. 
 Land, 2 Geo. i, 46 Am. Dec. 368; 
 Belk i). 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. 
 
 ^Steward v. Thomas, 35 Mo. 202; 
 Barr v. Hatch, 3 Ohio 527. 
 
 SSmith V. Lowell, 6 N. H. 67; 
 Hancock v. Horan, 15 Tex. 507. 
 
 3Wooten v. Clark, 23 Miss 75; 
 Noble V. Coleman, 16 Ala. 77. And 
 the Alabama rule seems to be that 
 the retention of possession by the 
 vendor of land is prima facie 
 fraudulent. Cooper v. Davison, 86 
 Ala. 367, 5 So. 650. 
 
 4The grounds upon which the 
 retention of possession with the 
 jus disponendi^ox power of sale 
 in chattel mortgages — is considered 
 fraudulent are stated in the text. 
 But the principles upon which such 
 transactioiis are upheld are stated 
 
 with great force by Mr. Justice 
 Brewer, in Etheridge v. Sperry, 139 
 U. S. 266, 277, II S. Ct. 565, as fol- 
 lows: "If this were an open ques- 
 tion we could not be blind to the 
 fact that the tendency of this com- 
 mercial age is toward increased fa- 
 cilities in the transfer of property, 
 and to uphold such transfers so far 
 as they are made in good faith; and 
 it is at least worthy of thought 
 whether the rulings made by the 
 Supreme Court of Iowa do not tend 
 to make chattel mortgages more 
 valuable for commercial purposes 
 without endangering the rights of 
 unsecured creditors. The law now 
 generally requires a record of all 
 such instruments, and that, like 
 the recording of a real estate mort- 
 gage, gives notice to all parties in- 
 terested of the fact and extent of 
 incumbrance. Why should a trans- 
 action like this be condemned if 
 made in good faith and to secure an 
 honest debt? The owner of a stock 
 of goods may make an absolute sale 
 of them to his creditor, in payment 
 of a debt. If an absolute, why not 
 a conditional sale, with such condi- 
 tions as he and his creditor may 
 agree upon? As between the par- 
 ties, no court would question this 
 right, or refuse to enforce the con- 
 ditions. The interests of the general 
 public are not prejudiced by any 
 such transaction between debtor 
 and creditor. Indeed they are rather 
 promoted by any arrangement un- 
 der which the mortgagor can con- 
 
POSSESSION. 
 
 123 
 
 property is altogether different from the retention of pos- 
 
 tiaue in business, for in ninety-nine 
 cases out of a hundred the taking 
 of possession by a creditor results 
 in closing the business and turning 
 the debtor out of employment. The 
 only parties who can claim to be 
 injuriously afiected are unsecured 
 creditors. But they are notified by 
 the record of the exact relations 
 between mortgagor and mortgagee; 
 and surely subsequent creditors 
 have no right to complain if they 
 deal with the mortgagor with full 
 knowledge of such relations. Ex- 
 isting creditors may, of course, 
 challenge the good faith of the 
 transaction, but if they cannot dis- 
 turb an absolute sale when made in 
 good faith, why should they be per- 
 mitted to challenge a conditional 
 sale if made in like good faith ? 
 The fact that fraudulent relations 
 are possible is hardly a sufl&cient 
 reason for denouncing transactions 
 which are not fraudulent. So if 
 the question were open or a new 
 one, unaffected by any settled law 
 of the sta'te, we incline to the opin- 
 ion that the question is not one of 
 law so much as it is one of fact and 
 good faith, and that the decision of 
 the Supreme Court of Iowa rests 
 on sound principles." 
 
 In the following note some of the 
 leading features of this question 
 are examined. 
 
 A. — Possession with Unre- 
 stricted Power of Sale. — 
 "From the very nature of the 
 transaction and from the facts 
 stated it seems to us that the mort- 
 gage was given with a tacit or 
 express understanding and arrange- 
 ment between the parties that the 
 mortgagor should be permitted to 
 do exactly what he did do — deal in 
 the property for his own benefit. 
 That such a state of facts rendered 
 
 the mortgage fraudulent and void 
 as to creditors cannot be disputed. 
 A mortgage thus given is fraudu- 
 lent and void as to creditors be- 
 cause it must be presumed that at 
 least one of the purposes, if not 
 the main purpose, for giving it, 
 was to cover up the mortgagor's 
 property and thus hinder and 
 delay his other creditors. It mat- 
 ters not whether the agreement 
 that the mortgagor may continue 
 to deal in the property for his own 
 benefit is contained in the mort- 
 gage or exists in parol, it matters 
 not whether it is valid so that it 
 can be enforced between the par- 
 ties or not; for whether valid or 
 invalid it is equally effectual to 
 show the fraudulent purpose for 
 which the mortgage was given and 
 the fraudulent intent which charac- 
 terizes it." Potts ji. Hart, 99 N. Y. 
 i58, 172, citing Chatham Bank v. 
 O'Brien, 6 Hun 231; Russell v. 
 Winne, 37 N. Y. 591, 97 Am. Dec. 
 755; Southard v. Benner, 72 N. Y. 
 424; Brackett v. Harvey, 91 N. Y. 
 214. 
 
 The following cases hold such 
 mortgages fraudulent. Tickner v. 
 Wiswall, 9 Ala. 305; Smith v. Lea- 
 vitt, 10 Ala. 92; Johnson v. Thweat, 
 18 Ala. 741 ; Price v. Mazange, 31 
 Ala. 701; Constantine v. Twelves, 
 29 Ala. 607; King v. Kenan, 38 
 Ala. 63; McDermott v. Eborn, 90 
 Ala. 258, 7 So. 751; Benedict v. 
 Renfro, 75 Ala. 121, 51 Am. Rep. 
 429; Owens V. Hobbie, 82 Ala. 467, 
 3 So. 145; Martin v. Ogden, 41 Ark. 
 186; Bank v. Goodrich, 3 Colo. 140; 
 Bishop V. Warner, 19 Conn. 460; 
 Bank v. Wittich, 33 Fla. 681, 15 So. 
 552; Logan V. Logan, 22 Fla.562; Eck- 
 man v. Munnerlyn, 32 Fla. 367, 13 So. 
 922; Readz". Wilson, 22 111. 377; Lew- 
 iston Nat. Bank v. Martin, 2 Id. 700, 
 
124 
 
 POSSESSION. 
 
 session accompanied witli a power to dispose of it for tlie 
 
 23 Pac. 920; Huschle v. Morris, 131 
 111. 587, 23 N. E. 643; Dunning v. 
 Mead, 90 111. 376; Swaim v. Humpli- 
 rey, 42 111. App. 370; Hughes v. 
 Corey, 20 la. 399; Jessup v. Bridge, 
 II la. 572, 79 Am. Dec. 513; Wil- 
 helmi v. Leonard, 13 la. 330; Tor- 
 bert V. Hayden, 11 la. 435; Levy v. 
 Walsh, 2 Edw. Gh. 438; Campbell v. 
 Leonard, 11 la. 489; Chapin v. 
 Jenkins, 50 Kans. 385, 31 Pac. 1084; 
 Gay V. Bidwell, 7 Mich. 519; Oliver 
 V. Eaton, 7 Mich. 108; Stein v. 
 Munch, 24 Minn. 390; Mann v. 
 Flower, 25 Minn. 500; Farmers' 
 Bank v. Douglas, 19 Miss. 469; 
 Harman v. Hoskins, 56 Miss. 142; 
 Johnson v. Tuttle, 65 Miss. 492, 4 
 So. 553; Milburn v. Waugh, 11 Mo. 
 369; Brooks V. Wimer, 20 Mo. 503; 
 Walter v. Wimer, 24 Mo. 63; 
 Martin v. Maddox, 24 Mo. 575; 
 Stanley v. Bunce, 27 Mo. 269; Bil- 
 lingsley v. Bunce, 28 Mo. 547; 
 Lodge V. Samuels, 50 Mo. 204; 
 Cator V. Collins, 2 Mo. App. 225; 
 Teunant-Stribling Shoe Co. v. 
 Gallant, 53 Mo. App. 423; Helm v. 
 Helm, 52 Mo. App. 615; Sauer v. 
 Behr, 49M0. App. 86; State, Kratzer 
 V. Busch, 38 Mo. App. 440; Leo- 
 pold V. Silverman, 7 Mont. 266, 16 
 Pac. 580; Griswold v. Sheldon, 4 N. 
 Y. 580; Spies V. Boyd, i E. D, 
 Smith, 445, s. c. 11 Leg. Obs. 54; 
 Carpenter v. Simmons, l Robt. 360; 
 Edgell V. Hart, 13 Barb. 380, s. c. 9 
 N. Y. 213, 59 Am. Dec. 532; Russell 
 V. Winne, 37 N. Y. 591, s. C. 4 Abb; 
 Pr. (N. S.) 384, 97 Am. Dec. 755; 
 Divver v. McLaughlin, 2 Wend. 
 596, 20 Am. Dec. 655; Wood v. 
 Lowry, 17 Wend. 492; Lachlen v. 
 Wright, 3 Wend. 348; Mittnacht v. 
 Kelly, 3 Abb. Ap. 301; Hangen v. 
 Hachemeister, 114 N. Y. 566, 21 N. 
 E. 1046; Mandeville v. Avery, 124 
 K. Y. 376, 26 N. E. 951; Shaw v. 
 
 Lowry, Wright, 190; Collins v. 
 Myers, 16 Oh. 547; Harman v. 
 Abbey, 7 Oh. St. 218; Place v. Long- 
 worthy, 13 Wis. 629, 80 Am. Dec. 
 658; Welsh ®. Bekey, i Penn. 57; 
 Reed v. Blades, 5 Taunt. 212; Simp- 
 son V. Mitchell, 8 Yerg. 417; Doyle 
 V. Smith, I 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. C. 22 Wall. 513; Perry v. 
 Shenandoah Bank, 27 Gratt. 755; 
 Garden v. Bodwing, 9 W. Va. 121; 
 Overman v. Quick, 8 Biss. 734; 
 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 ErastusS. Bloom, 35 
 Leg. Int. 135; Johnson v. Patterson, 
 2 Woods 443; vide Chandler v. Col- 
 cord, Okla., 32 Pac. 330; Aiken v. 
 Pascall, 19 Ore. 493, 24 Pac. 1039; 
 Wilber v. Kray, 73 Tex. 534, 11 S. W. 
 540. The following case's hold that 
 it merely raises a presumption of 
 fraud which can be rebutted. Rey- 
 nolds z/. Johnson, 54 Ark. 449, 16 S. 
 W. 124; Muncie National Bank v. 
 Brown, 112 Ind. 474-481, 14 N. E. 
 358; Fletcher v. Powers, 131 Mass. 
 333; Cheatham v. Hawkins, 76 N. C. 
 336; Blanchard v. Cook, 144 Mass. 
 207, II N. E. 83; Lister v. Sitnpson, 
 38 N. J. Eq. 438; Greeley v. Winsor, 
 I S. D. 117, 45 N. W. 325, Corson, P. 
 J., dissenting. 
 
 Possession with power of sale is a 
 circumstance tending to show lack 
 of good faith. Pool v. Gramling, 
 88 Ga. 653, 16 S. E. 52; Rosenthal z/. 
 Vernon, 79 Wis. 245, 48 N. W. 485. 
 
 And in Peabody v. Landou, 61 
 Vt. 318, 15 Am. St. Rep. 903, 17 Atl. 
 781, the Supreme Court of Vermont, 
 
POSSESSION. 
 
 125 
 
 grantor's own benefit. Such a power is equivalent to a 
 
 after discussing the effect of regis- 
 tration, held along the same lines as 
 Mr. Justice Brewer in Etheridge v. 
 Sperry that possession with power 
 of sale, under a recorded chattel 
 mortgage, was not even presump- 
 tively fraudulent. 
 
 In Kreth v. Rogers, loi N. C. 263, 
 7 S. E. 682, such a mortgage to 
 secure the purchase money was held 
 not fraudulent. 
 
 And a mortgage permitting pos- 
 session with power of sale by mort- 
 gagor is valid as to parties and 
 volunteers. McCoy v. Boley, 21 
 Fla. 803. 
 
 B.— Possession Whbre Mort- 
 gagor IS TO SeI/I, and Account 
 FOR Proceeds. — Mortgages per- 
 mitting mortgagor to retain posses- 
 sion and sell goods, accounting for 
 proceeds, are valid. Gibbs v. Par- 
 sons, 64 N. H. 66, 6 Atl. 93; Kim- 
 ball V. F. and M. Bank, 33 N. Y. St. 
 Rep. 870, II N. Y. Supp. 730; 
 Durand Organ and Piano Co. v. 
 Bowman, Ore., 35 Pac. 848; Bartlett 
 V. Walker, 65 Vt. 594, 27 Atl. 496; 
 Warren v. His Creditors, 3 Wash. 
 48, 28 Pac. 257. 
 
 Such mortgages are not neces- 
 sarily fraudulent. Murray v. Mc- 
 Nealy, 86 Ala. 234, 5 So. 565; Whit- 
 son V. Griffis, 39 Kans. 211, 7 Am. 
 St. Rep. 546, 17 Pac. 801; Howard 
 V. Rohlfing, 36 Kans. 357,13 Pac. 566; 
 Mayer z/. Feig, 114 Ind. 577, 17 N. E. 
 159; Manhattan Brass Co. w. Webster, 
 37 Mo. App. 145, Hubbell v. Allen, 
 90 Mo. 574, 3 S. W. 22, 7 West. 734; 
 and see cases cited; Nicholson v. 
 Golden, 27 Mo. App. 132; Davis v. 
 Scott, 22 Neb 154, 34 N. W. 353; 
 Simis z/. Hodge, 50 Hun 410, 21 N. 
 Y. St. -Rep. 955, 3 N. Y. Supp. 228; 
 Langert v. Brown, 3 Wash. Ter. 
 102, 13 Pac. 704; and see note to 
 Ephraim z*. Kelleher. j^ I/. R. A. 
 
 604. But in Wm. Deering and Co. 
 V. Washburn, 29 N. E. 558, affirming 
 39 111. App. 434, it is held that such 
 an agreement, when the mortgagor 
 actually makes sales in pursuance 
 thereof, is sufficient to render the 
 mortgage void. 
 
 C— Where Mortgagor Re- 
 tainsPossession AS Mortgagee's 
 Agent. — Such possession is not 
 fraudulent. Felner v. Wilson, 55 
 Ark. 77, 17 S. W. 587; Gleason v. 
 Wilson, 48 Kans. 500, 29 Pac. 698; 
 Ivane v. Starr, i S. D. 107, 45 N. W. 
 212; Bettes V. Weir Plow Co. 84 
 Tex. 543, 19 S. W. 705; Hage v. 
 Campbell, 78 Wis. 572, 47 N. W. 
 179. 
 
 D. — When There is Simply an 
 Agreement That Stock Shall 
 BE Replenished From the Pro- 
 ceeds. — Such agreements are not 
 presumptively fraudulent. McKay 
 V. Shotwell, 6 Dak. 124, 50 N. W. 
 622; Hincks v. Field, 129 N. Y. 633, 
 37 N. Y. St. Rep. 704, 29 N. E. 1030; 
 Stedman v. Batchelor, 28 N. Y. St. 
 Rep. 436, 8 N. Y. Supp. 37; Peabody 
 V. Landon, 61 Vt. 318, 15 Am. St. 
 Rep. 903, 17 Atl. 781. But contra, 
 Goddard v. Jones, 78 Mo. 518; Fox 
 V. Davidson, i Mackey, 102. 
 
 E. — Efeect of a Provision 
 that Mortgagor Shall Retain 
 Possession, Sell and Account 
 FOR Proceeds, RETaiNiNG a Cer- 
 tain Amount eor Business and 
 Living Expenses. — Such a provis- 
 ion is fraudulent as to creditors. 
 Wile V. Butler, 4 Colo. App. 154, 34 
 Pac. mo; Greenbaum v. Wheeler, 
 90 111. 296. Contra, Etheridge v. 
 Sperry, 139 U. S. 266, 11 S. Ct. 565. 
 
 F. — Eeeect oe a Provision 
 THAT the Mortgage Shall 
 Cover Property Acquired in 
 Future. -rSee note to Deeley v. 
 Dwight, 18 L. R. A. 298. Mort. 
 
126 
 
 POSSESSION. 
 
 power of revocation. It enables the vendor to defeat the 
 
 gages containing such provisions 
 are void as to creditors. Long v. 
 Hines, 40 Kansas 220, 19 Pac. 796; 
 Byrd v. Forbes, 3 Wash.' Ter. 318, 
 13 Pac. 115; Mercbants and M. 
 Sav. Bank v. Lovejoy, 84 Wis. 6or, 
 55 N. W. 108. But contra, William- 
 son V. Nealey, 81 Me. 447, 17 Atl. 
 404; Bennett v. Bailey, 150 Mass. 
 257, 22N. E.916; Preston Nat. Bank 
 V. Geo. T. Smith Co., 84 Mich. 364, 
 47 N. W. 502. Such stipulations do 
 not avoid the mortgage, but create 
 no lien on the after-acquired goods. 
 Fisher v. Syphers, 109 Ind. 514, 10 
 N. E. 306, 7 West. 918; Met. Bank 
 V. St. I/. Dispatch Co., 36 Fed. 722; 
 Wedgwood v. Bank, 29 Neb. 165, 45 
 N. W. 289. And where such pro- 
 visions are upheld, a chattel mort- 
 gage will not be construed to cover 
 after acquired property unless such 
 an intention plainly appears. Ed- 
 wards V. Symons, 65 Mich. 348, 8 
 West. 784, 32 N.W. 796; McArthur v. 
 Garman, 71 la. 34, 32 N. W. 140. 
 Such mortgages are valid as to sub- 
 sequent purchasers with notice. 
 Freiburg v. Magale, 70 Tejf. 116, 7 
 S. W. 684. 
 G— Effect op Such a Stipu- 
 
 I,AT10N AS TO ONE CivASS OF PROP- 
 ERTY WHEN THE Mortgage Cov- 
 ers MORE THAN one Ci,ass.— When 
 the mortgage covers difierent kinds 
 of property a stipulation permitting 
 mortgagor to retain possession of 
 and sell one kind will not avoid the 
 mortgage as to the other kind. 
 Hayes v. Westcott, 91 Ala. 143, 8 
 So. 337, II L.R. A. 488, see opinion 
 and cases cited; Ghio v. Byrne, 
 Ark., 27 S. W. 243; Barnet v. Fer- 
 gus, 51 111. 352; Chandler v. Colcord, 
 I Okla. 260, 32 Pac. 330. But contra 
 Greeley z/. Winsor, i S. D. 117, 48 
 N. W. 214; Wilson V. Voight, 9 Colo. 
 614, 13 Pac. 726. 
 
 H.— Effect of Mortgagor'& 
 Retain TNG Possession and Sei^i,- 
 iNG Without an Agreement to- 
 THAT Effect, When there is no 
 agreement that mortgagor sha.ll re- 
 tain possession and sell, but he 
 actually does so for a short time, it 
 is not necessarily fraudulent. Ste- 
 vens V. Breen, 75 Wis. 595, 44 N. W. 
 645; Byrd v. Perry, Tex. Civ. App. 
 26 S. W. 749-753; Kruschell z/. 
 Anders, Tex. Civ. App., 26 S. W. 
 249. But when mortgagor 
 remains in possession and sells at 
 discretion with mortgagee's con- 
 sent, the mortgage is fraudulent. 
 Rhode V. Matthai, 35 111. App. 147; 
 Standard Implement Co. v. Schultz,. 
 45 Kans. 52, 25 Pac. 625; Filebeck 
 V. Bean, 45 Minn. 307, 47 N. W. 969;. 
 McCarthy v. Miller, 41 Mo. App. 
 200; Putnam v. Osgood, 52 N. H. 
 148. "So too, such a mortgage 
 would be fraudulent and void as to 
 creditors if it was the arrangement 
 between the mortgagor and mort- 
 gagee that the former might con- 
 tinue to deal in the mortgaged 
 property for his own benefit so long 
 as the latter consented thereto, thus 
 leaving it in his power to assent 
 that all the property should thus be 
 sold and thereby deprive the mort- 
 gage of its character as a security. 
 The parties to a mortgage cannot 
 thus play fast and loose with the 
 mortgaged property, and thus hin- 
 der and delay creditors," Potts v. 
 Hart, 99 N. Y. 168, i N. E. 605. 
 
 I. — How far Mortgagee's 
 Taking Possession Purges 
 Fraud. — Where a mortgage is- 
 constructively fraudulent on ac- 
 count of mortgagor's retention 
 of possession with power of 
 sale, such fraud is cured by mort- 
 gagee's taking possession before 
 attaching creditors. Garner v. 
 
POSSESSION. 
 
 127 
 
 transfer, and renders an instrument in -which it is contained 
 
 Wright, 52 Ark. 385, 12 S. W. 785; 
 Manhattan Brass Co. v. Webster 
 Glass Co., 37 Mo. App. 145; Joseph 
 V. Boldridge, 43 Mo. App. 333; State, 
 Smith V. Roever, 55 Mo. App. 448; 
 Sherwin v. Gaghagen, 39 Neb. 238, 
 57 N. W. 1005; Mcintosh «. Smiley, 
 107 Mo. 377, 17 S, W. 979. But 
 contra, Wilson v. Voight, g Colo. 
 614, 13 Pac. 726. In order to cure 
 defects the delivery to the mort- 
 gagee must be actual. Moser v. 
 Claes, 23 Mo. App. 420. If the mort- 
 gage be fraudulent in fact, the 
 fraud is not purged by mortgagee's 
 taking possession. Boland v. Ross, 
 120 Mo. 208, 25 S. W. 524; McKinney 
 V. Wade, 43 Mo. App. 152. And see 
 Rathbun v. Berry, 49 Kans. 735, 31 
 Pac. 679. 
 
 K. — A Summary op the Decis- 
 ions IN Various Jurisdictions. 
 Alabama. — Mortgages with 
 power of sale by mortgagor for his 
 own benefit are fraudulent per se 
 both as to existing and subsequent 
 creditors. McDermott v. Eborn, go . 
 Ala. 258, 7 So. 751. But if there be 
 a stipulation that mortgagor shall 
 sell and account for the proceeds of 
 sales, the transaction is not neces- 
 sarily fraudulent. Murray v. 
 McNealy, 86 Ala. 234, 5 So. 565. 
 But if such agreement be parol it is 
 invalid. Owens v. Hobbie, 82 Ala. 
 467, 3 So. 145. And when the mort- 
 gage covers property other than 
 that to which the power of sale re- 
 lates, it is valid as to the other 
 property. Hayes ®. Westcott, gi 
 Ala. 143, 8 So. 337. 
 
 Arkansas. — Such mortgages are 
 only presumptively fraudulent, and 
 it is immaterial whether the stipula- 
 tion appears on the face of the in- 
 strument or is shown by extrinsic 
 evidence. Gauss v. Doyle, 46 Ark. 
 122. A stipulation that mortgagor 
 
 shall account for proceeds is not 
 fraudulent. Martin v. Ogden, 41 
 Ark. 186. And the mortgagor may 
 sell as agent of the mortgagee. Fel- 
 ner v. Wilson, 55 Ark. 77, 17 S. W. 
 587. Fraud in such cases is a ques- 
 tion for the jury. Funk v. Ehrman, 
 44 Ark. 310; Reynolds v. Johnson, 
 54 Ark. 449, 16 S. W. 124. 
 
 California.— Under the code of 
 this State a stock of merchandise 
 cannot be mortgaged. 
 
 Colorado. — Mortgages where 
 grantor retains possession with 
 power of sale are void. City Nat. 
 Bank v. Goodrich, 3 Colo. I3g; Wil- 
 cox V. Jackson, 7 Colo. 521, 4 Pac. 
 g66; Brasher v. Christophe, 10 Colo. 
 284, 15 Pac. 403. The mortgagor 
 may, however, sell and apply the 
 proceeds to the payment of the 
 debt, or he may sell as mortgagee's 
 agent. Wilson v. Voight, 9 Colo. 
 614, 13 Pac. 726; Wilcox z/, Jackson, 
 7 Colo. 521, 4 Pac. g66. But in such 
 cases the retention by the mortgag- 
 or of a portion of the proceeds for 
 family expenses renders the trans- 
 action fraudulent. Wile v. Butler. 
 4 Colo. App. I54j 34 Pac. mo. And 
 the mortgagee's taking possession 
 will not cure fraud. Wilson v. 
 Voight, supra. 
 
 Connecticut. — Such mortgages 
 are -voiAper se as to creditors. Gay- 
 lor V. Harding, 37 Conn. 516. 
 
 Delaware. — By statute posses- 
 sion is fraud per se. 
 
 District oe Columbia. — Such 
 mortgages are void per se. Fox v. 
 Davidson, i Mackey 102; Smith v. 
 Kenney, 1 Mackey 12. But in 
 Etheridge v. Sperry, 139 U. S. 266, 
 II S. Ct. 565, the U. S. Supreme 
 Court, which is of controlling 
 authority in this jurisdiction, seems 
 to have overthrown this doctrine. 
 Florida. — Mortgages reserving 
 
128 
 
 POSSESSION. 
 
 null and void according to the known principles of the com- 
 
 to mortgagor possession and power 
 of sale are void as to creditors. First 
 National Bank v. Wittich, 33 Pla. 
 '681, IS So. 552; Eckman v. Mun- 
 nerlyn, 32 Fla. 367, 13 So. 922. But 
 they are valid between parties and 
 as to volunteers. McCoy v. Boley, 
 21 Fla. 803. ^ 
 
 Georgia. — Such mortgages are 
 permitted by statute, but the mort- 
 gage lien cannot be made to cover a 
 greater amount of goods than the 
 original stock. Chisholm v. Chit- 
 tenden, 45 Ga. 213. And taken to- 
 gether with other circumstances, 
 «uch possession may tend to show 
 bad faith. Pool v. Gramling, 88 
 Ga. 653, 16 S. E. 52. See Goodrich 
 ■V. Williams, 50 Ga. 426; Anderson z/. 
 Howard, 49 Ga. 313. 
 
 Idaho. — Under the statute mort- 
 gages permitting mortgagor to re- 
 tain possession and sell and dispose 
 of proceeds are void and fraudulent 
 in law, and recording does not 
 purge the fraud. I/Cwiston Nat. 
 Bank v. Martin, 2 Idaho 700, 23 
 Pac. 920; Barnett v. Kinney, 2 Id. 
 706, 23 Pac. 922. 
 
 Ii.i,iN0lS. — The possession of 
 mortgagor with power of sale ren- 
 ders the mortgage void as to credit- 
 ors. Swaim v. Humphrey, 42 111. 
 App. 370; Huschle v. Morris, 131 
 111. 587, 23 N. E. 643. And a pro- 
 Tfision that mortgagor is to account 
 for proceeds or to act as mortgagee's 
 agent will not render it valid. Wm. 
 Deering & Co. v. Washburn, 111., 29 
 N. E. 558, affirming, 39 111. App. 
 434; Dunning v. Mead, 90 111. 376. 
 It is immaterial whether the agree- 
 ment is contained in the mortgage 
 or is extraneous. Barnett v. Fergus, 
 51 111. 352, 99 Amer. Dec. 547; 
 Huschle V. Morris, supra. But the 
 mortgagee's possession'before cred- 
 itors attack cures the fraud. Read 
 
 V. Wilson, 22 111. 377, 74 Am. Dec. 
 159, re Forbes, 5 Biss. 510. 
 
 Indiana. — Fraud in such cases is 
 a question of fact under the statute. 
 Fletcher z*. Martin, 126 Ind. 55, 25 N. 
 E. 886. But the court is to construe 
 written instruments and tell the jury 
 the effect of the language. Louthain 
 V. Miller, 85 Ind. 163. Mortgages 
 permitting mortgagor to retain pos- 
 session with power of sale, the 
 mortgagor accounting to mortgagee 
 for the proceeds of sales, are valid 
 in Indiana. Rindskopf v. Vaughn, 
 40 Fed. 394. And it is presumed 
 until the contrary is shown that 
 there is an agreement that mort- 
 gagor shall account for proceeds. 
 New V. Sailors, 114 Ind. 407, 16 N. 
 E. 609. But if it shall appear af- 
 firmatively that the mortgagor was 
 not to account for proceeds, an in- 
 ference of fraud arises, ibid; Mayer 
 V. Feig, 114 Ind. 577, 17 N. E. 159; 
 Mobley v. Letts, 61 Ind. 11. But 
 the fraud must be found by the jury. 
 Watson V. Williams, 4 Blackf. 26, 
 28 Am. Dec. 36; Maple v. Burnside, 
 21 Ind. 139. 
 
 Iowa. — In Iowa, registration be- 
 ing held equivalent to transfer of 
 possession, such mortgages are 
 valid if recorded. Etheridge v. 
 Sperry, 139 U. S. 266, 11 S. Ct. 565, 
 63 Iowa 543; 19 N. W. 657; Meyer 27. 
 Gage, 65 la. 606, 19 N. W. 892. But 
 when the facts show actual fraudu- 
 lent intent the court must so in- 
 struct the jury. Lyon v. Council 
 Bluffs Saving Bank, 29 Fed. 566. 
 
 Kansas. — Mortgages permitting 
 to mortgagor possession with un- 
 restricted power of sale are fraud- 
 ulent. Cliapin V. Jenkins, 50 Kans. 
 385, 31 Pac. 1084; Standard Imple- 
 ment Co.. V. Schultz, 45 Kans. 52, 
 25 Pac. 625; Valentine, J., dissent- 
 ing; Rathbun v. Berry, 49 Kans. 
 
POSSESSION. 
 
 129 
 
 735 > 31 Pac. 679. But if the mort- 
 gage contains a provision that 
 mortgagor shall account for pro- 
 ceeds, or shall retain possession as 
 mortgagee's agent, it is not pre- 
 sumed fraudulent. Gleason v. Wil- 
 son, 48 Kans. 500, 29 Pac. 698; How- 
 ard V. Rohlfing, 36 Kans. 357; 13 Pac. 
 566; Whitson V. Griffis, 39 Kans. 211; 
 17 Pac. 801, 7 Am. St. Rep. 546. 
 
 KekTucky. — Such mortgages are 
 not fraudulent per se. Ross v. 
 Wilson, 7 Bush 29. 
 
 IfOUisiANA. — Chattel mortgages 
 are unknown in this state. Delop 
 V. Windsor, 26 La. Ann. 185. 
 
 Maine. — The question of fraud 
 in such cases is for the jury. Allen 
 V. Goodman, 71 Me. 420. And such 
 a mortgage is good as to after ac- 
 quired property. Williamson v. 
 Nealey, 81 Me. 447, 17 Atl. 404; 
 Deering v. Cobb, 74 Me. 332, 43 
 Am. Rep. 596. 
 
 Maryland. — The mortgage is 
 valid as to goods in the store at the 
 time it is given, but not as to after 
 acquired goods. Hamilton v. 
 Rogers, 8 Md. 301; Rose v. Bevan, 
 10 Md. 466, 59 Am. Dec. 170. An 
 equitable lien may be created on 
 after acquired goods. Butler v. 
 Rahm, 46 Md. 541. But see Price v. 
 Pitzer, 44 Md. 527. 
 
 Massachusetts.— Such mort- 
 gages are not void per se. Blanch- 
 ard V. Cooke, 144 Mass. 207, 11 N. 
 E. 83; Fletcher v. Powers, 131 Mass. 
 333. Fraud in such cases is a ques- 
 tion for the jury. Sleeper v. Chap- 
 man, 121 Mass. 404. The mortgage 
 lien attaches to after acquired goods. 
 Bennett v. Bailey, 150 Mass. 227, 22 
 N. E. 916. 
 
 Michigan. — Such mortgages are 
 valid. Peoples Sav. Bank v. Bates, 
 120 U. S. 556, 7 S. Ct. 679; Laing v. 
 Perrott, 48 Mich. 298, 12 N. W. 192; 
 Curtis V. Wilcox, 49 Mich. 425,' 13 
 JSr. W. 803. The mortgage lien 
 
 attaches to after acquired goods. 
 Preston Nat. Bank v. Geo. T. Smith 
 Co., 84 Mich. 364, 47 N. W. 502; 
 Ivcland V. CoUver, 34 Mich. 418. 
 The question of fraud is for the 
 jury. Cadwell v. Pray, 41 Mich. 
 307, 2 N. W. 52. 
 
 Minnesota. — Such mortgages 
 are void as to creditors. Gallagher 
 V. Rosenfield, 47 Minn. 507, 50 N. 
 W. 696. So even if there is an 
 agreement to account for the pro- 
 ceeds. Chophard v. Bayard, 4 
 Minn. 593. But not if it is agreed 
 that the proceeds shall be applied 
 in payment of the debt. Bannon v. 
 Bowler, 34 Minn. 416, 26 N. W. 237. 
 Mortgagee's possession acquired un- 
 der the mortgage will not purge the 
 fraud. Stein z/. Munch, 24 Minn. 3gi; 
 Gallagher v. Rosenfield, supra. 
 But if the property is delivered to 
 the mortgagee in satisfaction of the 
 debt, his title is valid. First Nat. 
 Bank v. Anderson, 24 Minn. 435. 
 
 Mississippi. — Mortgagor's posses- 
 sion with power of sale avoids the 
 mortgage as to creditors. Johnson 
 V. Tuttle, 65 Miss. 492, 4 So. 553; 
 Britton v. Criswell, 63 Miss. 394. 
 A trust deed providing for an 
 account of proceeds was held void 
 in Joseph v. Levi, 58 Miss. 843. 
 Unless the power to sell appears 
 plainly on the face of the instru- 
 ment fraud is a question for the 
 jury. Hitchler v. Citizens Bank, 
 63 Miss. 403. Mortgagee's taking 
 possession will purge fraud. Sum- 
 mers V. Roos, 42 Miss. 749. 
 
 Missouri. — Such mortgages a-re 
 void as to creditors. Tennant 
 Stribling Shoe Co. v. Gallant, 53 
 Mo. App. 423; Sauer v. Behr, 49 Mo. 
 App, 86; State, Kratzer v. Busch, 38 
 Mo. App. 440; BuUene v. Barrett, 87 
 Mo. 186. They are valid as to par- 
 ties and volunteers. Wood v. Hall, 
 23 Mo. App. no, 5 West. 53. When 
 mortgagor is to account for the pro- 
 
130 
 
 POSSESSION. 
 
 ceeds the mortgage is not necessarily 
 void. Manhattan Brass Co. v. Web- 
 ster Glass and Q. Co., 37 Mo. App. 
 145; Hubbell V. Allen, 90 Mo. 574, 3 
 S. W. 22. It may be valid as to part 
 of the goods and void as to others. 
 BuUene v. Barrett, 87 Mo. 185. The 
 mortgagee's taking possession will 
 cure fraud. Joseph v. Boldridge, 43 
 Mo. App. 333; Dobyns v. Meyer, 95 
 Mo. 132, 8 S. W. 251. 
 
 Montana. — Under the Montana 
 statute,a mortgage permitting grant- 
 or to retain possession and sell is 
 void. Leopold v. Silverman, 7 
 Mont. 266, i5 Pac. 580. In Roche- 
 leau V. Boyle, 11 Mont. 451, 28 Pac. 
 872, it was implied that a mortgage 
 providing that mortgagor should 
 account for proceeds would be 
 upheld. In Schwab v. Owens, 10 
 Mont. 381, 25 Pac. 1049, possession 
 with power to use was distinguished 
 from possession with power to sell. 
 
 Nebraska. — Such mortgages are 
 void as to creditors and subsequent 
 
 purchasers. Paxton v. Sniith, 
 
 Neb. — , 59 N. W. 690. But where 
 there is no agreement to sell the 
 fact that the naortgagor actually 
 does sell a small portion will not of 
 itself invalidate the mortgage. 
 Whitney v. Levon, 34 Neb. 443, 51 
 N. W. 972; Chicago Lumber Co. v. 
 Fisher, 18 Neb. 334, 25 N. W. 340. 
 The question of fraud is always for 
 the jury. Turner v. Killian, 12 
 Neb. 580, 12 N. W. loi. 
 
 Nevada. — Such mortgages are 
 void. Wilson v. Hill, 17 Nev. 401, 
 30 Pac. 1076. 
 
 New Hampshire. — When mort- 
 gagor is pertnitted to retain posses- 
 sion and sell the mortgage is void. 
 Putnam v. Osgood, 51 N. H. 192. 
 It is immaterial that the agreement 
 is extraneous. Putnam v. Osgood, 
 52 N. H. 148. But when mortgagor 
 retains possession and sells as agent 
 of the mortgagee, or is to apply the 
 
 proceeds of sales to the debt the 
 mortgage will be upheld. Wilson 
 V. Sullivan, 58 N. H. 260, 9 Rep. 614; 
 Gibbs V. Parsons, 64 N. H. 66, 6 Atl. 
 
 93- 
 
 New Jersey. — Possession with 
 power of sale raises a presumption 
 of fraud, which is open to explana- 
 tion. The question of fraud in all 
 cases is for the jury. Lister v. Simp- 
 son, 38 N. J. Eq. 438; Miller ». 
 Shreve, 29 N. J. L. 250; Parr v. 
 Brady, 37 N. J. L. 201. But see re 
 Bloom, 17 N. Bank. Reg. 426. 
 
 Nbw Mexico. — Such mortgages 
 are void. Speigleberg v. Hersch, 3 
 N. M. 186, 4 Pac. 705. 
 
 New York. — When the mort- 
 gage itself contains an agreement 
 permitting mortgagor to retain pos- 
 session and sell without accounting 
 for the proceeds, the mortgage is 
 fraudulent in law, and void. Mande- 
 ville V. Avery, 124 N. Y. 376, 26 N. 
 E- 95I! Quinn v. Hart, 48 Hun 393, 
 I N. Y. Supp. 388, 16 N. Y. St. Rep. 
 321 ; Hangen v. Hachmeister, 114 N. 
 Y. 566, 21 N. E. 1046; Reynolds v. 
 Ellis, 103 N. Y. 115, 8 N. E. 392. 57 
 Am. Rep. 701; Cook v. Bennett, 60 
 Hun 8, 14 N. Y. Supp. 683, 38 N. 
 Y. St. Rep. 632; Sperry v. Baldwin, 
 46 Hun 120. And it is equally void 
 if the agreement be extraneous. Re 
 Cantrell, 6 Ben. 482; Potts v. Hart, 
 99 N. Y. 168, I N. E. 605. But if the 
 agreement is not contained in the 
 instrument the question of its exist- 
 ence is for the jury. Gardner v. 
 McEwen, 19 N. Y. 123; Bainbridge 
 V. Richmond, 17 Hun 393. Where 
 mortgagor is to account to mort- 
 gagee for the proceeeds, or to sell as 
 agent for the mortgagee, the mort- 
 gage is not necessarily void. Ostran- 
 der V. Fay, 30 Abb, App. Die. 431; 
 Dolson V. Saxton, 11 Hun 589; City 
 Bank v. Westbury, 16 Hun 458; 
 Spaulding v. Keyes, 52 Hun 612, 5 N. 
 Y. Supp. 227. Mortgagee's taking 
 
POSSESSION. 
 
 131 
 
 possession will not cure fraud. Man- 
 devillez/. Avery, supra, reversing 57 
 Hun. 78, 10 N. Y. Supp. 323, FoUett, 
 C. J., dissenting; Quinn v. Hart. 
 supra,- Delaware v. Ensign, 21 Barb, 
 89. But see Brown v. Piatt, 8 Bosw. 
 331. If void as to part of the goods 
 on account of a power of sale, it is 
 void as to all. Smith v. Ely, 10 
 Nat. Bank Reg. 553; Russell v. 
 Winne, 37 N. Y. 595, 97 Am. Dec. 
 755, 4 Abb. Pr. N. S. 388. 
 
 North Carolina. — A mortgage 
 permitting to mortgagor possession 
 with power of sale is presumptively, 
 but not conclusively, fraudulent. 
 Cheatham v. Hawkins, 80 N. C. 164. 
 The presumption cannot be re- 
 moved by proof of absence of 
 fraudulent intent. Cheatham 11. 
 Hawkins, 80 N. C. 164. Mortgagor 
 may sell as agent. Frank v. Robin- 
 son, 96 N. C. 30, I S. E. 781. 
 
 North Dakota. — Under the 
 statute no presumption of fraud 
 arises from mortgagor's possession 
 with power of sale. Reichart v. 
 Simmons, 6 Dak. 239, 42 N. W. 657; 
 McKay v. Shotwell, 6 Dak. 124, 50 
 N. W. 622. 
 
 Ohio. — Mortgagor's possession 
 with power of sale renders the in- 
 strument void. Collins v. Myers, 
 ih O. 547; Morris v. Devon, 2 Dis- 
 ney 218. But mortgagor may sell 
 as agent. Kleine v. Katzenberger, 
 20 Oh. St. no, 5 Am. Rep. 630. 
 
 Oklahoma. — Such mortgages are 
 conclusively presumed to be fraudu- 
 lent, but only as to the goods to 
 which the power of sale refers. 
 Chandler v. Colcord, i Okl. 260, 32 
 Pac. 330. 
 
 Oregon. — Such mortgages are 
 fraudulent as to creditors and in- 
 nocent purchasers. Aiken v. Pas- 
 call, 19 Ore. 493, 24 Pac. 1039; 
 Marks v. Mullen, Ore., 28 Pac. 14; 
 Orton V. Orton, 7 Ore. 478, 33 Am. 
 Rep. 717; Catlin z/. Currier, i Sawy.7. 
 
 Pennsylvania.— See note on re- 
 tention of possession, sec. 109, anie. 
 
 Rhode Island.— Such mortgages 
 are not fraudulent per se, but the 
 fraudulent intent is a question of 
 fact. Williams v. Winsor, 12 R. 1. 12. 
 
 South Carolina.— Such mort- 
 gages are not per se fraudulent. 
 Hi^schkind v. Israel, 18 S. C. 157. 
 
 South Dakota.— Mortgages per- 
 mitting to mortgagor possession 
 with power of sale are presump- 
 tively fraudulent, and though the 
 power of sale attaches only to part 
 of the goods mortgaged, the pre- 
 sumption of fraud exists as to the 
 entire mortgage. Greeley v. Win- 
 sor, I S. D. 117, 48 N. W. 214. But 
 mortgagor may sell as mortgagee's 
 agent. Lane v: Starr, i S. D. 107, 
 45 N. W. 212. 
 
 Tennessee.— Such mortgages are 
 void per se. Tennessee National 
 Bank v. Ebbert, 9 Heisk. 153, 2 So. 
 Law Rev., ist series, 175, overrul- 
 ing Hickman z/. Perrin, 6 Coldw. 
 135-145- But the mortgage is not 
 void if the mortgagor is to account 
 for proceeds. Saunders v. Turbe- 
 ville, 2 Humph. 272. 
 
 Texas.— Under tbe Texas statute 
 it seems that such mortgages are 
 void. Wilbur v. Kray, 73 Tex. 533, 
 II S. W. 540; National Bank v. 
 Lovenberg, 63 Tex. 645. 
 
 United States.- In Etheridge 
 V. Sperry, 139 U. S. 266, 11 S. Ct. 
 565, the Supreme Court, speaking 
 through Mr. Justice Brewer, seems 
 to have modified the strict views 
 expressed in Robinson v. Elliott, 
 22 Wall. 513, and, in cases un- 
 affected by local law, that eminent 
 court inclines to the doctrine that 
 the question of fraudulent intent is 
 one of fact and that such mortgages 
 are not fraudulent/^r se. 
 
 Vermont. — M ortgages with 
 power of sale in mortgagor are not 
 even prima facie fraudulent when 
 
132 
 
 POSSESSION. 
 
 mon law.^ The effect, 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.^ It also 
 enables the vendor 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.* Be- 
 sides if such a transfer were held valid, it would enable 
 the vendor to sell the property as he sees fit, use the pro- 
 ceeds for his own benefit, and exercise all the control and 
 enjoy all the advantages oT absolute owner in defiance of 
 his creditors. It would enable him to hinder and delay 
 
 the statutes governing their execu- 
 tion and registration have been 
 complied with. Peabody v. Landon, 
 6i Vt. 318, 15 Am. St. Rep. 903, 17 
 Atl. 781 (a leading case). 
 
 Virginia. — Such mortgages are 
 void. Brockenbrough v. Brocken- 
 brough, 31 Gratt. 580; Perry v. 
 Shenandoah National Bank,27 Gratt. 
 755; Addington v. Etheridge, 12 
 Gratt. 436; Quarles v. Kerr, 14 Gratt. 
 48, Marks v. Hill, 15 Gratt, 400. 
 
 Washington. — Where the mort- 
 gagor has possession, with unre- 
 stricted power of sale and disposi- 
 tion of proceeds, the mortgage is 
 void as to creditors. Wineburgh 
 V. Schaer, 2 Wash. Ter. 328, 5 Pac. 
 299. But not if the proceeds are to 
 be applied to the mortgage debt. 
 Langert v. Brown, 3 Wash. Ter. 
 102, 13 Pac. 704. An agreement 
 that part of the proceeds shall be 
 used to replenish the stock will not 
 avoid the mortgage. Ephrajm v. 
 Kelleher, 29 Pac. 985, 18 L. R. A. 
 604, see note. 
 
 West Virginia.— Such mort- 
 gages are void. Claflin v. Foley, 22 
 W. Va. 434; Garden v. Bpdwing, 9 
 W. Va. 121; Kuhn V. Mack, 4 W. 
 Va. 186. 
 
 Wisconsin. — Where mortgagor 
 is permitted to retain possession and 
 sell, applying the proceeds to his 
 own use, the mortgage is void, and 
 mortgagee's taking possession does 
 not purge the fraud. Blakeslee v. 
 Rossman, 43 Wis. Ii6. But a pro- 
 vision that stock shall be replen- 
 ished from the proceeds of sales will 
 not render the mortgage fraudu- 
 lent. Roundy v. Converse, 71 Wis. 
 524; 37 N. W. 811; Burr v. Dana, 72 
 Wis. 639, 39 N. W. 562. Mortgagor 
 may retain possession as agent. 
 Hage V. Campbell, 78 Wis. 572, 47 
 N. W. 179. Under the Wisconsin 
 statute mortgagor is permitted to 
 retain possession and sell, applying 
 the proceeds to the debt. 
 
 Wyoming. — Such mortgages are 
 permitted by statute. 
 
 llyang V. I/ce, 3 Rand. 410; Ad- 
 dington V. Etheridge, 12 Gratt. 436. 
 
 ^Armstrong v. Tuttle, 34 Mo. 432 > 
 Spies V. Boyd, i E. D. Smith 445, 
 II I/Cg. Obs. 54; Brooks v. Wimer, 
 20 Mo. 503. 
 
 SEdgell V. Hart, 9N. Y. 213, s. c. 
 13 Barb. 380, 59 Am. Dec. 532; In 
 re Manly, 3 N. B. R. 291, s. c. 2 
 Bond 261; Billiard v. Cagle, 46 Miss. 
 309- 
 
POSSESSION. 133 
 
 them as long as lie and his confidential vendee might deem 
 proper.^ Such a transfer is merely colorable, and operates 
 in the most effectual maaner to ward off creditors. As the 
 legal effect of it is to delay, hinder and defraud creditors, 
 the law imputes to it a fraudulent purpose, without regard 
 to the actual motives of the parties.^ 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 debtor being swept off by other 
 creditors by fastening a special lien upon that property cov- 
 ered 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 reliance upon the honesty of the mort- 
 gagor, and in fact is no security, as it is in the power of 
 the mortgagor at any moment to defeat the mortgage lien 
 by an entire disposition of the whole property. Such a 
 mortgage is n6 certain 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 permit- 
 ting 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 mort- 
 gage is valid, fasten upon the property and take it away 
 from the execution creditor. The property therefore is 
 
 l/« re Kahley, 4 N. B. R. 378, s. 553; in re Manly, 3 N. B. R. 291, S. 
 c. 2 Biss. 383. C. 2 Bond 261; Hilliard v. Cagle, 
 
 ^Robinson v. Elliott, 11 N. B. R. 46 Miss. 309. 
 
134 POSSESSION. 
 
 not held by the mortgage, but the will of the debtor, be- 
 cause, if the debtor sees proper to dispose of it, he has the 
 power under the mortgage. He may dispose of the prop- 
 erty, 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 in- 
 strument between the parties. It is no security so far as 
 the debtor is concerned, and its only operation and effect is 
 to ward off creditors. It is therefore fraudulent and void. 
 The 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.^ A mere stipulation 
 that property subsequently acquired shall be subject to the 
 mortgage does not render it void.^ 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.^ When there is a power to sell, the mortgage 
 is void although the mortgagee does not know that there 
 are any other creditors.* 
 
 § 117. Parol Power to Sell. — It is immaterial whether the 
 power to sell the property is contained in the mortgage or 
 is conferred by a parol agreement made at the time of its 
 execution.^ If the mortgage is made and delivered under 
 such an arrangement and with such a purpose, it is alike 
 
 IVoorhis V. Langsdorf, 31 Mo. ^Holmesz/. Marshall, 78 N. C. 262. 
 
 451; Sleeper z». Chapman, 121 Mass. 5 "It matters not whether the 
 
 404; Kalk V. Fielding, 50 Wis. 339, agreement that the mortgagor may 
 
 7 N. W. 296. continue to deal in the property for 
 
 SCodman v. Freeman, 57 Mass. his own benefit is contained in the 
 
 306; Gardner «. McEwen, 19 N. Y. mortgage or exists in parol, .... 
 
 123; Brinley z;. Spring, 7 Me. 241; it is equally efEectual to show the 
 
 State ®. Tasker, 31 Mo. 445; Voor- fraudulent purpose for which the 
 
 his V. Langsdorf, 31 Mo. 451; State mortgage was given and the fraudu- 
 
 z/. Byrne, 35 Mo. 147; Hickman v. lent intent which characterizes it." 
 
 Perrin, 6 Cold. 135; Yates v. Olm- Potts v. Hart, 99 N. Y. 168, 172, 
 
 stead, 56 N. Y. 632. See extended i N. E. 605; Johnson v. Tuttle, 65 
 
 note ante. Miss. 492, 4 So. 553; Bullene v Bar- 
 
 SWalter v. Wimer, 24 Mo. 63; rett, 87 Mo. 185, 3 West. 213; Aiken 
 
 Josephs. Levi, 58 Miss. 843; Greene- v. Pascall, 19 Ore. 493, 24 Pac. 1039. 
 
 baum V. Wheeler, 90 111. 296. See See extended note to Sec. 116 anie. 
 extended note ante. 
 
POSSESSION. 
 
 135 
 
 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 securing to the 
 debtor the use and benefit of his property and its proceeds, 
 while it protects it from levy and sale for the payment of 
 his debts.^ It must be shown, however, that sales made by 
 the mortgagor were made with the knowledge or consent 
 of the mortgagee.^ But this may be inferred from circum- 
 
 ICollins V. Myers, i6 Ohio, 547; 
 Griswold V. Sheldon, 4 N. Y. 580; 
 Delaware v. Ensign, 21 Barb. 85; 
 Freeman v. Rawson, 5 Ohio St. i, 
 S. c. 4 A. Iv. Reg. 693; Russell v. 
 Winne, 37 N. Y. 591, s. c. 4 Abb. 
 Pr. (N. S.) 384, 97 Am. Dec. 755; 
 Robbins v. Parker, 44 Mass. 117; 
 Gardner v. McEwen, 19 N. Y. 123; 
 Marstou v. Vultee, 12 Abb. Pr. 143; 
 New Albany Ins. Co. v. Wilcoxson, 
 21 Ind. 355; Howerton v. Holt, 23 
 Tex. 60; in re Kahley et al., 4 N. B. 
 R. 378, 2 Biss. 383; in r^ Manly, 3N. 
 B. R. 291, s. c. 2 Bond 261; Baruet v. 
 Fergus, 51 111. 352, 99 Am. Dec. 547; 
 Steinart v. Deuster, 23 Wis. 136; 
 Ross V. Wilson, 7 Bush. 29; Catlin 
 V. Currier, i Saw. 7; Smith v. Ely, 
 10 N. B. R. 553; in re Samuel Can- 
 trell, 6 Ben. 482; Jordan v. Turner, 
 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; Southard v. 
 Benner, 72 N. Y. 424, s. c. 7 Daly 
 
 40; McCrassley v. Hasslock, 4 Baxter 
 i; 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, 
 4 N. W. 440; Smith v. Ham, 51 
 Mo. App. 433; Johnson v. Tuttle, 
 65 Miss. 492, 4 So. 553; Potts V. 
 Hart, 99 N. Y. 168, i N. E- 605; 
 Aiken v. Pascall, 19 Ore. 493, 24 
 Pac. 1039; Smith v. Cooper, 27 Hun 
 565; Texas Bank v. Lovenberg, 63 
 Tex. 506. But contra, see Etheridge 
 V. Sperry, 139 U. S. 266, 11 S. Ct. 
 565; Fletcher v. Martin, 126 Ind. 
 55, 25 N. E. 886; Sedgwick City 
 Bank v. Wichita Min. Co., 45 Kans. 
 346, 25 Pac. 888; Meacham v. Hern- 
 don, 86 Tenn. 366, 6 S. W. 741. In 
 Mississippi it is held that in order 
 to render the instrument fraudulent 
 in law the reservation of the right to 
 sell must appear plainly on the face 
 of the instrument. Britton v. Cris- 
 well, 63 Miss. 394. 
 
 2Frost V. Warren, 24 N. Y. 204; 
 Williston w. Jones, 6 Duer, 504; Sum- 
 mers V. Roos, 42 Miss. 749, 2 Am. 
 Rep. 653; Burgin v. Burgin, i Ired. 
 453; Sleeper v. Chapman, 121 Mass. 
 404. See section 116, ante, note h. 
 
136 POSSESSION. 
 
 stances and the conduct- of the parties.^ The substantial 
 character of the transaction is the same whether the agree- 
 ment 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 vojd even 
 though there was no express agreement to that effect at 
 the time of executing the mortgage.^ A sale by a mort- 
 gagor or vendor, when made contrary to the purpose for 
 which the property is left in his possession, will not vitiate 
 the transfer.^ If an article was left in the mortgage by 
 mistake, an oral agreement that the mortgagor may sell it 
 will not vitiate the mortgage.* A mere permission to sell 
 inconsiderable portions of the property in particular in- 
 stances is merely a badge of fraud.^ 
 
 § 118. 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.® But if the pro- 
 
 iMacdona v. Swiney, 8 Ir. Law, win, 20 Me. 408; Melody v. Chand- 
 
 N. S. 73; Allen v. Smith, 10 Mass- ler, 12 Me. 282; Constantine v. 
 
 308; Archer v. Hubbell, 4 Wend. Twelves, 29 Ala. 607; Chophard v. 
 
 5i4;Hankinsz'. Ingolls,4Blackf. 35; Bayard, 4 Minn. 533; Weaver z/. 
 
 Saunders v. Turbeville, 2 Humph. Joule, 91 E. C. L,. 309, S. C. 3 C. B. 
 
 272; Scott V. Winship, 20 Geo. 429; (N. S.) 309; Allen z/. Smith, 10 Mass. 
 
 Barkow v. Sanger, 27 Wis. 500. 308; Barker v. Hall, 13 N. H. 298; 
 
 2Putnam v. Osgood, 52 N. H. 148. Conkling v. Shelley, 28 N. Y. 360, 84 
 
 3/« re Kahley, 4 N. B. R. 378, s. Am. Dec. 348; Hicjiman v. Perrin, 6 
 
 c. 2 Biss. 383; in re Manly, 3 N. B. Cold. 135; Pope v. Wilson, 7 Ala. 
 
 R. 291, s. c. 2 Bond, 261. 6go; Brinley v. Spring, 7 Me. 241; 
 
 4Allen V. Kennedy, 49 Wis. 549, Spence v. Bagwell, 6 Gratt. 444; 
 
 5 N. W. 906. Davis v. Ransom, 18 111. 396; John- 
 
 SGoodheart v. Johnson, 88 111. 58. son v. Curtis, 42 Barb. 588; Summers 
 
 6See section ii5, ante, note c. v. Roos, 42 Miss. 799, 2 i^m. Rep. 
 
 Hawkins v. Nat. Bank, i Dillon 462, 653; Adler v. Claflin, 17 Iowa 89; 
 
 S. c. 2 N. B. R. 338; Miller v. Lock- Wiswall v. Ticknor, 6 Ala. 178; 
 
 wood, 32 N. Y. 293; Ford v. Wil- Kleine v. Katzenberger, 20 Ohio St. 
 
 liams, 13 N. Y. 577, s. C. 24 N. Y. no, 5 Am. Rep. 630; Farmers' Bank 
 
 359, 67 Am. Dec. 83; Abbott v. Good- w. Cowan, 2 Abb. Ap. 88; Ostrander 
 
POSSESSION. 137 
 
 ceeds arising from the sales are to be applied to the debt 
 only when collected, then the mortgage is void.^ Whether 
 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.^ 
 
 § 119. Perishable Articles.^ —Articles in their nature sub- 
 ject to be consumed in their use may be mortgaged with- 
 out any imputation of fraud, provided they are not to be 
 used and may be kept without damage until the mortgage 
 debt shall become payable.* If the articles, however, are 
 perishable and cannot be ^o kept, or if there is an under- 
 standing that they may be used and consumed by the mort- 
 gagor, the mortgage is fraudulent and void.^ Such perish- 
 able 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.^ The 
 amount in number and value of such articles may be so in- 
 considerable as compared with the main subjects of the 
 mortgage as to justify the conclusion that they were em- 
 braced through the inattention of the parties, and will not 
 
 V. Fay, 3 Abb. Ap. 431; Vose v.. *Robbins z/. Parker, 44 Mass. 117;. 
 
 Stickney, 19 Minn. 367; Goodheart Dewey v. Littlejohn, 2 Ired. Eq. 
 
 z/. Johnson, 88 111. 58; Crow z*. Red 495; Charlton w. Ivay, 5 Humph. 496; 
 
 River Co. Bank, 52 Texas 362; Over- Cochran z;. Paris, 11 Gratt. 348. 
 man v Quick, 17 N. B. R. 255; vide BSommerville v. Horton, 4 Yerg. 
 
 Saunders v. Turbeville, 2 Humph. 541, 26 Am. • Dec. 242; Trabue v. 
 
 273; Trabue v. Willis, Meigs, 583, Willis, Meigs, 583, note; Wiley z). 
 
 note; Bamford v. Baron, 2 T. R. 594, Knight, 27 Ala. 336; Farmers' Bank 
 
 note; in re Wm. D. Forbes, 5 Biss. v. Douglass, 19 Miss. 469; Johnson. 
 
 510. V. Thweatt, 18 Ala. 741; Ravisies z/. 
 
 ICity Bank v. Westbury, 23 N. Y. Alston, 5 Ala. 297; Gardner v. John- 
 
 Supr. 458; Brackettz*. Harvey, 32 N. ston, 9 W. Va. 403; vide Elmes v. 
 
 Y. Supr. 502; Ball v. Slafter, 33 N. Y. Sutherland, 7 Ala. 262. 
 Supr. 353. SCochran v. Paris, 11 Gratt. 348; 
 
 ^Frankhouser z/. Ellett, 22 Kans. Dewey v. Littlejohn, 2 Ired. Eq. 
 
 127, 31 Am. Rep. 171; vide Greene- 495; Ravisies v. Alston, 5 Ala. 297^ 
 
 baum V. Wheeler, 90 111. 296; Joseph Planters & Merchants' Bank v. 
 
 V. Levi, 58 Miss. 843. See ante sec- Clarke, 7 Ala. 765; Sipe v. Earman, 
 
 tion 116, note e. 26 Gratt. 563. 
 
 3See section 61, ante. 
 
138 POSSESSION. 
 
 then vitiate the transaction.^ The rule in regard to perish- 
 able objects is limited to chattels that are transient in 
 their existence, or of such a nature that their only use con- 
 sists in their consumption.^ 
 
 § 120. 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 f but this is 
 manifestly not true, for such a transfer is merely colorable.^ 
 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 
 place 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.^ In another case the mortgage was held 
 valid against a claim which arose after the mortgagee 
 took possession of the property.^ But the weight of 
 authority is that the transaction will not be rendered valid 
 by taking possession before the levy of an execution.* 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.^ 
 
 ICochran v. Paris, ii Gratt. 348; 6Brown v. Piatt, 8 Bosw. 324. 
 
 Dewey v. Littlejohu, 2 Ired. Eq. TwilHston v. Jones, 6 Duer 504. 
 
 495- SRobinson v. Elliott. 22 Wall. 513; 
 
 sshurtleff v. Willard, 36 Mass. in re Wm. D. Forbes, 7 Biss. 510; 
 
 202. And if the goods are consum- Smith v. Ely, 10 N. B. R. 553; 
 
 able but are not to be consumed the Dutcher v. Swartwood, 22 N. Y. 
 
 sale is not necessarily fraudulent. Supr. 31; Stein «. Munch, 24 Minn. 
 
 Lincoln Sav. Bank v. Ewing, 12 390. Contra, Rowley v. Rice, 52 
 
 Lea 598. If the vendor actually Mass. 333; Read v. Wilson, 22 111. 
 
 does retain and consume the goods 377, 74 Am. Dec. 159; Summers v. 
 
 without any agreement that he Roos, 42 Miss. 749, 2 Am. Rep. 653; 
 
 shall do so, it may be a badge of Foster v. Saco Manuf. Co., 29 Mass. 
 
 fraud. Ibid. 451. 
 
 SGrubbs v. Greer, 5 Cold. 160. SFirst Nat'l Bank v. Anderson, 
 
 *Paget V. Perchard, 1 Esp. 205. 24 Minn. 435. 
 
 5See section 116, mtU, note i. 
 
WHEN POSSESSION IS FRAUD PER SB. 139 
 
 CHAPTER VI. 
 WHEN POSSESSION IS FRAUD PER SE. 
 
 § 121. Nature of the Rule that Possession is Fraud per se. 
 
 — The retention of possession has thus far been considered 
 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. 
 
 The rule that the retention of possession is conclusive 
 evidence of fraud is one of policy,^ and rests upon the doc- 
 trine that fraud is in all cases a question of law.^ Although 
 a valuable consideration may be paid, and the real intent 
 of the parties may be to transfer the property, yet the pos- 
 session 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 
 void as to creditors, though there may be no fraud, in 
 fact, in the transaction.^ The rule excludes all regard to 
 the actual intentions of the parties in every transaction 
 that comes within its range.* The inference arising from 
 the possession can not be rebutted or repelled even by the 
 strongest testimony of the actual fairness of the intention 
 bf the parties.' Hence, it is immaterial whether the 
 
 iWilson V. Hooper, 12 Vt, 653; 3Weeks v. Wead, 2 Aik. 64; Milne 
 
 Mills V. Camp, 14 Conn. 219; Kirt- v. Henry, 40 Penn. 352. 
 
 land V. Snow, 20 Conn. 23. ^Wilson v. Hooper, 12 Vt. 653. 
 
 2Weeks v. Wead, 2 Aik. 64; Milne BLand v. Jeffries, 3 Rand. 211, s. 
 
 v. Henry, 40 Penn. 352; Sturtevant C. 599; Hundley v. Webb, 3 J. J. 
 
 ■». Ballard, 9 Johns. 337, 6 Am. Dec. Marsh. 643. 20 Am. Dec. 189. 
 281; lanters Bank v. Borland, 5 
 Ala. 531. 
 
140 WHEN POSSESSION IS FRAUD PER SE. 
 
 vendee was party or privy to any fraudulent intention of 
 the vendor or not.i 
 
 § 133. 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.^ 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 
 the transaction that the delivery is merely colorable.^ 
 Actual possession is used in contradistinction to construc- 
 tive possession, which is incident to, and dependent on, 
 right and title.* 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.^ 
 
 iKing V. Bailey, 6 Mo. 575. 4Woods v. Bugbey, 29 Cal. 466. 
 
 SBillingsley v. White, 59 Penn. See section 155, /io.f/. 
 
 464. Merely informing the vendee ^Stoddard v. Butler, 20 Wend, 
 
 that he may have the property is 507, S. C. 7 Paige, 163; Trask v. 
 
 not a sufficient delivery. Wetzler v. Bowers, 4 N. H. 309; Stephens v. 
 
 Kelly, 83 Ala. 440, 3 So. 747. See Barnett, 7 Dana 257; Fitzgerald v. 
 
 section no, anie. (5orham, 4 Cal. 289, 60 Am. Dec. 
 
 3Cunningham v. .Neville, 10 S. & 616; Stewart v. Scannell, 8 Cal. 80; 
 
 R. 20i; Brawn v. Keller, 43 Penn. Stanford v. Scannell, 10 Cal. 7; 
 
 104, 3 Grant, 237. See section 123, Bentzf.Rockey,69Penn. 7i;Thomp- 
 
 pos/, son V. Wilhite, 81 111. 356. See sec- 
 
WHEN POSSESSION IS FRAUD PER SE. 141 
 
 § 123. Change must be Continuous.— The word actual also 
 excludes the idea of a mere formal change of the posses- 
 sion.^ 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 pos- 
 session 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 continuing posses- 
 sion.^ The possession and beneiiciai use of the property 
 by the vendor, after the sale, is conclusive evidence against 
 it. It is the policy and very foundation of the rule to 
 prevent what it is the object of fraudulent conveyances to 
 secure — -the beneficial use of the property to the debtor.^ 
 The delivery must be made of the property; the vendee 
 must take the actual possession; the 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 unmistakable 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.* 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 
 
 tions 116-118, ante and notes, sec- i S. D. 257, 46 N. W. 247; Sanborn 
 
 tions 127-128, /oj/. w. Putnam, 61 N. H. 506; Miles v. 
 
 IStevens v. Irwin, 15 Cal. 503. Woodruff, 25 Neb. 797. "It is not 
 
 2Young V. McClure, 2 W. & S. enough that the sale was bona fide. 
 
 147; Streeper v. Eckart, 2 Whart. It is not enough that there was a 
 
 302; Goldsbury v. May, i Litt. 254; formal change of possession of the 
 
 Breckenridge v. Anderson, 3 J. J. property accompanying the sale. 
 
 Marsh. 710; McBride v. McClelland, The law requires an open, visible 
 
 6 W. & S. 94; Miller v.. Garman, 69 and permanent change of the pos- 
 
 Penn. 134; Miller ». Garman, 2 session to make the sale good as 
 
 Pearson, 91; Leech v. Shantz, 2 against the vendor's creditors." 
 
 Phila. 310, s. c. 5 Am. L. Reg. 620; Mead v. Noyes, 44 Conn. 487. 
 
 Norton v. Doolittle, 32 Conn. 405; spierce v. Chipman, 8 Vt. 334. 
 
 Bunting v. Salz, 84 Cal. 168, 24 Pac. ILay v. Neville, 25 Cal. 545; Cut- 
 
 167; Chickering v. White. 42 Minn.' ting v. Jackson, 56 N. H. 253. 
 457, 44 N. W. 988; l/ongley v. Daly, 
 
142 WHEN POSSESSION IS FRAUD PER SB. 
 
 again^ — not formal, but substantial.^ It is not necessary 
 that a change of possession should at all times accompany 
 the transfer. If it follows within a reasonable time there- 
 after, that is, as soon as the nature of the property and cir- 
 cumstances attending the transfer will admit, it is sufficient.^ 
 What is a reasonable time must be determined according 
 to the circumstances of each particular case.* It does not, 
 however, depend upon the convenience of the vendee, but 
 upon the time fairly required to perform the act of taking- 
 possession or doing what is equivalent.' A delay of four 
 or six days is not material, if the property has not in the 
 meantime been seized on legal process.^ 
 
 § 124:. Subsequent Return. — The rule is not an absolute pro- 
 hibition of any subsequent return of the property into the 
 possession ef 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 
 
 lA few isolated instances of use by this into his syllabus, though this, 
 
 the vendor will not vitiate the sale, court used only the word actual. — 
 
 nor will mere temporary acts of Next comes another expression 
 
 ownership have that effect. I/ake v. derived from the same source — 
 
 Morris, 30 Conn. 201; Farnsworthz'. "clear, unequivocal and conclu- 
 
 Shepard, 6 Vt. 521; Lyndon v. Bel- sive." The expressions "visible 
 
 den, 14 Vt. 423; Hodgkins z/. Hook, and open," and "open and mani- 
 
 23 Cal. 581; Kendall v. Fitts, 22 N. fest," would seem to be more ac- 
 
 H. I. curate. Hugus v. Robinson, 24 
 
 ^Stevens v. Irwin, 15 Cal. 503; Penn. 9. 
 Engles V. Marshall, 19 Cal. 320; SCarpenter v. Mayer, 5 Watts, 
 
 Mead v. Noyes, 44 Conn. 487. Mere 483; Smith v. Stern, 17 Penn. 360; 
 
 accidental words grow sometimes State z;. King, 44 Mo. 238; McVicker 
 
 into undue importance. A learned v. May, 3 Penn. 224; Barr v. Reitz, 
 
 judge of the Common Pleas hap- 53 Penn. 256; McFartau v. English, 
 
 pened, improperly , but without pre- 74 Penn. 296. 
 
 judice to any one, to apply the terms ^Bishop v. O'Connell, 56 Mo. 158. 
 
 which qualify a possession under ^Seymour v. O'Keefe, 44 Conn, 
 
 the statute of limitations to a case 128. 
 
 of this sort, and declared that the BMcVicker v. May, 3 Penn. 224, 
 
 possession must be "actual, visible, 45 Am. Dec. 637; Barr v. Reitz, 53 
 
 notorious," and the reporter put Peuii. 256. 
 
WHEN POSSESSION IS FRAUD PER SE. 143 
 
 transaction fraudulent.^ 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 
 title, 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.^ 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.* If the prop- 
 erty has been attached, this will assist in giving notoriety 
 to the transfer.* 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.^ It is 
 impossible to lay down a fixed rule applicable to all cases 
 establishing the length of time a vendee of personal prop- 
 erty should continue in the exclusive possession. Bach 
 case must necessarily be governed and determined by its 
 own peculiar circumstances.* Bight or ten days^ has been 
 deemed insufficient.^ 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 
 
 iBrady v. Haines, i8 Penn. 113; 10 Cal. 394; Bacon v. Scannell, 9 
 
 Graham v. McCreary, 40 Penn. 515, Cal. 271. 
 
 80 Am. Dec. 591; Clark 0. Morse, 10 SCIark v. Morse, 10 N. H. 236. 
 
 N. H. 236; French v. Hall, 9 N. H. 3Houston v. Howard, 39 Vt. 54. 
 
 137, 32 Am. Dec. 341; Prosser v. 4Clark z/. Morse, .10 N. H. 236. 
 
 Henderson, 11 Ala. 484; Sutton v. SCarpenter v. Clark, 2 Nev. 243. 
 
 Shearer, i Grant 207; Carpenter v. 6Weil v. Paul, 22 Cal. 492. 
 
 Clark, 2 Nev. 243; Johnson v. Willey, 7Weeks z/.Wead, 2 Aik. 64; Rogers 
 
 46 N. H. 75; Stevens v. Irwin, 15 v. Vail, 16 Vt. 327; Mills v. Warner, 
 
 Cal. 503, 76 Am. Dec. 500; Waldiez/. 19 Vt. 609; Miller v. Garman, 69 
 
 Doll, 29 Cal. 555; Lewis v. Wilcox, Penn. 134; Look v. Comstock, 15 
 
 6 Nev. 215; Brown v. Riley, 22 111. Wend. 244. Contra, Cunningham 
 
 45; Neece v. Haley, 23 111. v. Hamilton, 25 111. 228; Wright v 
 
 416. Contra, Van Pelt v. Littler, Grover, 27 111. 426. 
 
 SBradys. Haines, 18 Penn. 113. 
 
144 WHEN POSSESSION IS FRAUD PER SB. 
 
 about them with the same safety as he may a stranger.^ 
 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.^ A minor son may, however, 
 purchase them in good faith, and bring them home to his 
 father's house, where he resides.^ 
 
 § 125. Question of Law. — The rule does not determine 
 what acts shall constitute a delivery and continued change 
 of possession.* Change of possession is mainly a fact like 
 possession or seizin, but of course the facts being conceded, 
 or found, all these matters then resolve themselves into a 
 mere judgment of law.^ The question of change of pos- 
 session 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.® Possession, being a 
 fraud in law, without regard to the intent of the parties, 
 becomes a question for the court and not for the jury to 
 decide.'^ When there is no proof to show that possession 
 accompanied and followed the transfer, the court instructs 
 ihe jury that the sale is fraudulent.^ When, however, 
 there is any evidence tending to prove a change of posses- 
 sion, the question must be submitted to the jury.^ The 
 •evidence must be such as would justify the jury in infer- 
 ring, under instructions from the court, that there has 
 been an actual and exclusive change of possession^" When 
 
 IDewey v. Thrall, 13 Vt. 281; Syoung v. McClure, 2 W. & S. 
 
 Harding v. Janes, 4 Vt. 462; Brady 147; Dewart v. Clement, 48 Penn. 
 
 V. Haines, 18 Penn. 113; Bond v. 413. In Connecticut the question 
 
 Bronson, 80 Penn. 360. is submitted to the jury as a ques- 
 
 2Mills V. Warner, 19 Vt. 609. tion of fact, with instructions that 
 
 ^Jordan v. Friuk, 3 Penn. 442. if they find none of the established 
 
 ^Godchaux v. Mulford, 26 Cal. exceptions, they will find the trans- 
 
 316, 85 Am. Dec. 178. action fraudulent. Swift v. Thomp- 
 
 SBurrows v. Stebbins, 26 Vt. 659. son, 9 Conn. 63, 21 Am. Dec. 718; 
 
 6Cadbury v. Nolen, 5 Penn. 320; Howe v. Keeler, 27 Conn. 538. 
 
 Burrows v. Stebbius, 26 Vt. 659; ^Warner t/. Carlton, 22 111. 415; 
 
 £ontra, Lake v. Morris, 30 Conn. Stephenson v. Clark, 20 Vt. 624; 
 
 201. Chamberlain v. Stern, 11 Nev. 268. 
 
 7Young V. McClure, 2 W, & S. loMcKibbin v. Martin, 64 Penn. 
 
 147; Carpenter v. Mayer, 5 Watts 352, 3 Am. Rep. 588. 
 483; Milne v. Henry, 40 Penn. 352. 
 
"WHEN POSSESSION IS FRAUD PER SE. 145 
 
 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.^ 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.^ The 
 rule is no reason for excluding the evidence of the trans- 
 fer. It is the judgment of the law upon the evidence, and 
 not a ground to exclude evidence.^ 
 
 § 126. Joint Possession. — Possession is the visible control 
 of and dominion over the goods.* If the vendee has such 
 a possession it is sufficient. A concurrent possession of 
 the vendor with the vendee,^ or with an agent of the . 
 vendee,® is not such a substantial change as the rule requires. 
 Such a possession is merely colorable. The reason why 
 possession must be changed is to announce a change of 
 ownership, and to prevent the former owner from gaining a 
 credit by his possession. Consequently the possession and 
 use of the v^dor, to be within the rule, must be of the 
 same description as that of a joint owner in using, occupy- 
 ing and disposing of the property, Ifothing short of this 
 would furnish any evidence that he yet remained the 
 
 IPorsyth v. Matthews, 14 Penn. put in another person to take pos- 
 
 100, 53 Am. Dec. 522; Wilson v. session jointly with the former 
 
 Hooper, 12 Vt. 653, 36 Am. Dec. owner of the goods. A concurrent 
 
 366; Hodgkins v. Hook, 23 Cal. 581. possession with the assignor is col- 
 
 SBurrows v. Stebbins, 26 Vt. 659; orable. There must be an exclusive 
 
 Stephenson v. Clark, 20 Vt. 624. possession under the assignment or 
 
 SSherron v. Humphreys, 14 N. J. it is fraudulent and void as against 
 
 217. creditors. Wordall v. Smith, i Camp. 
 
 ^Ludlowz/. Hurd, ig Johns. 218. 332; Paget z/. Perchard, I Esp. 205; 
 
 5 Wordall z/. Smith, I Camp. 332; Cook z/. Mann, 6 Colo. 21; McAfee 
 
 Babb V. Clemson, 10 S. & R. 419, v. Busbee, 69 la. 328, 28 N. W. 623; 
 
 13 Am. Dec. 684; Boyd v. Dunlap, Wright v. McCormick, 67 Mo. 426; 
 
 I Johns. Ch. 478; Stiles ®. Shum- Sumner v. Dalton, 58 N. H. 295. 
 way, 16 Vt. 43S; Waller v. Cralle, 8 BNeate v. Latimer, 2 Y. & C. 257; 
 
 B. Mon. 11; Miller v. Garman, 69 Wordall v. Smith, i Camp. 332; 
 
 Penn. 134; Regli v. McClure, 47 Babb v. Clemson, 10 S. & R. 419- 
 
 Cal. 612. It is a. mere mockery to 13 Am. Dec. 684. 
 
346 WHEN POSSESSION IS FRAUD PEK SE. 
 
 owner.^ What given state of facts constitutes a concurrent 
 possession is a question of law.^ A concurrent possession 
 is a mixed or uncertain possession apparently as mucli in 
 one as in the other. There may be a concurrent possession, 
 although there is no part ownership in the property. The 
 possession is concurrent where the control and use of the 
 property by the vendor and vendee are so confused and 
 mixed as to leave the question of possession uncertain.^ 
 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.* If the pos- 
 session does not amount to a joint possession the transfer 
 is valid. Thus, if a lease of the goods to a third party is 
 real and bona fide and not colorable, and he actually takes 
 possession, then his possession in connection with that of 
 the vendor will not be fraudulent.^ 
 
 §127. 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^n 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 
 
 lAllen V. Edgerton, 3 Vt. 442; the community, or those who 
 
 Hall V. Parsons, 15 Vt. 358, s. c. 17 are accustomed to deal with the 
 
 Vt. 271; Wilson V. Lott, 5 Fla. 305. parties, that the goods have 
 
 SHall V. Parsons, 15 Vt. 358, s. C. changed hands and that the title has 
 
 17 Vt. 271. passed out of the seller and into the 
 
 SWorman v. Kramer, 73 Penn. purchaser. This must be deter- 
 
 378. mined by the vendee using the 
 
 ^Worman v. Kramer, 73 Penn. usual marks or indicia of owner- 
 
 378. ship, and occupying that relation to 
 
 SArcher ». Hubbell, 4 Wend. 514. the thing sold which owners of, 
 
 6"The vendee must take the property generally sustain to their 
 
 acual possession, and the posses- own property." Cook v. Mann, 6 
 
 sion must be open, notorious and Colo. 21. 
 unequivocal, such as to apprise 
 
WHEN POSSESSION IS FRAUD PER SE. 147 
 
 change.^ 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 
 and understand as the result of change of ownership. 
 They must be such as he could not reasonably misappre- 
 hend.^ When such a change is apparent, creditors are put 
 on 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 change, a 
 careful observer will not be at loss to determine who 
 owns and has possession of the property. If it is doubt- 
 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.^ 
 
 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 
 
 " It is universally held that to son v. Graham, 14 Colo. 217, 23 Pac. 
 
 make a sale valid as against credit- 876; Kelly v. Murphy, 70 Cal. 560, 
 
 ors or purchasers, the transfer of 12 Pac. 467; Dean v. Walkenhorst, 
 
 possession must be complete and 64Cal. 78, 28Pac. 60; Meadz/. Noyes, 
 
 ' the purchaser's control of the prop- 44 Conn. 487; Jarvis v. Davis, 14 B. 
 
 erty must be open and notorious Mon. 424, 61 Am. Dec. 266; Hopkins 
 
 and such as to apprise the world of v. Bishop, 91 Mich. 328, 51 N. W. 902, 
 
 a change in the title." Donovan z-. 30 Am. St. Rep. 480; Lesem z/. Her- 
 
 Gathe, 3 Col. App. 151, 32 Pac. 437. riford, 44 Mo. 323; Bishop v. O'Con- 
 
 "It is sometimes said that the nell, 56 Mo. 158; Mills z^. Thompson, 
 
 possession' must be such as to be 72 Mo. 367; Stewart z/. Nelson, 79 Mo. 
 
 notice to the world. This does not 522; Cutting w. Jackson, 56 N. H. 253; 
 
 mean notice to the public generally, Parker v. Marvel, 60 N. Hi 30; Sav- 
 
 but to those who propose to pur- age v. Murphy, 34 N. Y. 508; Ewing 
 
 chase the property or deal with v. Merkley, 3 Utah 406, 4 Pac. 244. 
 reference to it." Deere z/. Needles, IStanley v. Robbins, 36 Vt. 422; 
 
 65 la. 105, 21 N. W. 203. Weeks v. Prescott, 53 Vt. 57. 
 
 And see Wilcox v. Jackson, 7 Colo. SStephenson v. Clark, 20 Vt. 624; 
 
 521, 4 Pac. 966; Bassinger v. Spang- Parker v. Kendricks, 29 Vt. 388. 
 ler, 9 Colo. 17s, 10 Pac. 809; Atchi- SFlanagan v. Wood, 33 Vt. 332. 
 
148 WHEN- POSSESSION IS FKAUD PER SE. 
 
 a change had taken place.^ The act must be so open and 
 manifest as to make the change of possession apparent and 
 visible.^ 
 
 § 128. Employment of Vendor. — If there are such palpa- 
 ble 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 de- 
 clared fraudulent in law, although the vendor may act as 
 the agent or servant of the vendee in tKe 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, He cannot be allowed to re- 
 main with apparently sole and exclusive possession of the 
 goods after the sale. But if it is apparent to all the world 
 that he has ceased to be the owner, and another has acquir- 
 ed and openly occupied that position; that he has ceased 
 to be the principal in the charge and management of the 
 property, and become only a subordinate or clerk, the 
 reason of the rule is satisfied.^ 
 
 IClaflin V. Rosenberg, 42 Mo. 439, the ssfle is completed and title has 
 
 43 Mo. 593, 97 Am. Dec. 336; Bur- passed, the agreement being dis- 
 
 gert, V. Borchert, 59 Mo. 80; Mills criminated from the sale, such em- 
 
 V. Thompson, 72 Mo. 367. "The ployment will not render the sale 
 
 object of the statute is to prevent fraudulent; but if the agreement as 
 
 parties from being misled by appar- to vendor's employment is a part of 
 
 ent ownership of property, where the contract of sale, the transaction 
 
 real ownership does not exist, but is fraudulent. Thornton v. Cook, 
 
 where a recent transfer has been 97 Ala. 630, 12 So. 403. 
 
 made to another." Allen z/. Massey, "One of the direct results of the 
 
 17 Wall. 351. . sale was that by the agreement the 
 
 ^Billingsley v. White, 59 Pa. 464. failing debtor secured to himself a 
 
 3The vendor's employment as paying employment which, but for 
 
 salesman will not avoid the sale, the sale and agreement, he would 
 
 Gould V. Huntley, 73 Cal. 399, 15 not have had. This was a benefit 
 
 Pac. 24; Groff v. Cooper, 7 Houst. 36; secured to him which rendered the 
 
 Crawfordz/. Neal, 144U. S. 585, 12S. transaction fraudulent as to that 
 
 Ct. 759; Pollard v. Farwell, 48 Mo. part of the property conveyed in 
 
 App. 42; Bell V. McCloskey, 155 Pa. -excess of the debtor's exemption." 
 
 St. 319, 26 Atl. 547. See section 116, Stephens v. Reginstein, 89 Ala. 561, 
 
 ante, note c. If the vendor be em- 8 So. 68, 18 Am. St. Rep. 156. 
 ployed as agent to sell property after 
 
WHEN POSSESSION IS FRAUD PER SE. 149 
 
 The immediate delivery and actual and continued change 
 of possession are the ultimate facts; the employment of 
 the vendor by the vendee in a subordinate capacity is only 
 a probative fact.^ If the change of possession is otherwise 
 sufficiently shown, the mere fact of such agency is not, and 
 never has been held, sufficient to render the sale invalid.^ 
 The omission to change the sign on a store is not conclusive.^ 
 Nor is a mere change of the sign sufficient.* It is not neces- 
 sary that the vendor shall be at all times in the store,® but he 
 must do something more than make occasional visits." The 
 same clerks may be employed, and it is immaterial where 
 they board,' but they cannot be employed and paid by the 
 vendor, although he does it at the request of the vendee,^ 
 for the possession is then in the vendor, and not the 
 vendee. The rule requires that all such agency and control 
 of the vendor shall be excluded. If the transfer is kept 
 secret, the employment of the vendor as agent will vitiate 
 it.^ The important inquiry is : who is at the head control- 
 ling the property? If a careful observer would be at a loss 
 to know which of the two was at the head, having the 
 chief control of the property, it must be deemed a joint 
 possession.!" 
 
 iGodchaux v. Mulford, 26 Cal. 351; Hugus v. Robinson, 24 Penn. 
 
 316, 85 Am. Dec. 178; Bird v. An- 9; Read v. Wilson, 22 111. 377; vide 
 
 draws, 40 Conn. 542. Wright v. McCormick, 67 Mo. 426; 
 
 SBillingsley v. White, 59 Penn. Stern v. Henley, 68 Mo. 262; Peirce 
 
 464; State V. Schulein, 45 Mo. 521; ». Merritt, 70 Mo. 275. 
 
 Claflin V. Rosenburg, 42 Mo. 439, S. 4potter v. Payne, 21 Conn. 361. 
 
 c. 43 Mo. 493, 97 Am. Dec. 336; BBillingsley v. White, 59 Penn. 
 
 McKibbin v. Martin, 64 Penn. 352, 464. 
 
 3 Am. Rep. 588; Hugus v. Robin- BBckfeldt v. Frick, 4 Phila. 116. 
 
 son, 24 Penn. 9; Dunlap v. Bournon- 7Hall v. Parsons, 15 Vt. 358, s. C. 
 
 ville, 26 Penn. 72; England v. In- 17 Vt. 271; Ivaneovich v. Stern, 14 
 
 surance Co., 6 La. An. 5; Weil v. Nev. 341. 
 
 Paul, 22 Cal. 492; Godchaux v. Mul- sparker ». Kendricks, 29 Vt. 388. 
 
 ford, 26 Cal. 316, 85 Am. Dec. 178; 9Xrask v. Bowers, 4 N. H. 309; 
 
 Warner v. Carlton, 22 111. 415; Allen v. Edgerton, 3 Vt. 442; Eck- 
 
 Powersz/. Green, 14 111. 386; Stevens feldt v. Frick, 4 Phila. 116; Etch- 
 
 V. Irwin, 15 Cal. 503, 76 Am. Dec. pare v. Aguirre, 91 Cal. 288, 27 Pac. 
 
 500; Hall V. Parsons, 15 Vt. 358, S. 668, 25 Am. St. Rep. 180. 
 
 c. 17 Vt. 271; Wilson z/. Lott, 5 Fla. 10 Allen v. Edgerton, 3 Vt. 442; 
 
 305; Talcott V. Wilcox, 9 Conn. 134. ' Hall v. Parsons, 15 Vt. 358, S. c. 17 
 
 SSeavy v. Dearborn, 19 N. H. Vt. 271. 
 
150 WHEN POSSESSION IS FRAUD PER SE. 
 
 In sucli cases of concurrent possession, it is a question 
 for tlie jury whether the change of possession has been 
 actual and bona fide, not pretended, deceptive, and collusive. 
 If there are facts tending to show that the grantor has a 
 beneficial interest in the business, or that the proceeds go 
 to him beyond a reasonable compensation for his services, 
 or that he has unlimited power to draw upon the till, or 
 that with the knowledge of the vendee he takes money to 
 pay his own debts, these are facts for the jury.^ The 
 vendor may, however, become a member of the firm which 
 purchases the property,^ or act as agent for the owner of 
 an undivided half of the property.* The vendee can not 
 employ the former agent of the vendor, and then hire the 
 property to the vendor,^ but the vendor may be employed 
 to use the property in the business of the vendee.^ One 
 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. * 
 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 al- 
 low him to have possession of the goods.^ 
 
 § 129. Possession of Land. — When the vendee relies upon 
 a constructive possession of land to make out his posses- 
 sion of the property which remains upon the land, he must 
 have such a deed as will vest in him a legal seizin, and it 
 may be essential that the deed shall be recorded.® The 
 deed, however, simply conveys the legal right of 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 
 
 iMcKibbin v, Martin, 64 Penn. SBrown v. Riley, 22 111. 45. 
 
 352, 3 Am. Rep. 588. eCriley v. Vasel, 52 Mo. 445. 
 
 2Utley V. Smith, 24 Conn. 290, ^Cameron v. Montgomery, 13 S. 
 
 63 Am. Dec. 163. and R. 128. 
 
 Spier V. Duff, 63 Penn. 59. sstephenson v. Clark, 20 Vt. 624. 
 
 ^Hurlburd v. Bogardus, 10 Cal. 
 S18. 
 
WHEN POSSESSION IS FRAUD PEE SE. 151 
 
 of the vendee, against such, actual possession, for this 
 would make the constructive possession more potential 
 than the' actual and apparent one.^ Consequently, a mere 
 surrender of a lease, which the vendor holds as tenant, to 
 the vendee is ^not suflBicient.^ 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 
 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.* 
 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.* 
 Taking a lease is some evidence of a change of possession,^ 
 but not sufficient.^ 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.^ 
 Possession need not be taken of a windmill attached to the 
 land, when both the land and the windmill are conveyed 
 by a mortgage.^ 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,^ but secrecy will vitiate such a 
 transaction.^" When an agent sells to his principal goods 
 which are already upon the principal's land, there need be 
 
 Iplanagan v. Wood, 33 Vt. 332; ^Talcott v. Wileox, 7 Conn. 134. 
 
 Rockwood z;. CoUamer, 14 Vt. 141; econway z/. Edwards, 6 Nev. 190. 
 
 Weeks v. Prescott, 53 Vt. 57; Myers splanagan v. Woods, 33 Vt. 332; 
 
 V. Woods, I Phila. 24; Ivawrence v. Grum v. Barney, 55 Cal. 254. 
 
 Burnham, 4 Nev. 361, 97 Am. Dec. ^Herron v. Fry, 2 Penna. 263. 
 
 ■540; Cahoon v. Marshall, 25 Cal. SSteward v. I<ombe, l Bred. & 
 
 197; Bishop V. O'Connell, 56 Mo. B. 506. 
 
 158; vide Smith v. Skeary, 47 Conn. 9L,ewis v. Whittemore, 5 N. H. 
 
 47; Elmer v. Welch, 47 Conn. 56. 364, 22 Aln. Dec. 466; Wright v. 
 
 ' SSteelwagon v. Jeffries, 44 Penn. Grover, 27 111. 426; Visher v. Web- 
 
 407; Kirtland v. Snow, 20 Conn. 23; ster, 13 Cal. 58. 
 
 Stiles V. Shumway, 16 Vt. 435. lOTrask v. Bowers, 4 N. H. 309; 
 
 spianagan v. Wood, 33 Vt. 332. Stephens v. Barnett, 7 Dana 257. 
 
152 WHEN POSSESSION IS FRAUD PER SE. 
 
 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.-^ 
 Where the vendee owns a fdrm, and goes to live with the 
 vendor upon it, and the vendor works it upon shares, and 
 has the sole conduct of the business, the change is not 
 sufficient;^ but the vendee may purchase land, and the 
 personal property upon it, and employ the vendor as over- 
 seer,^ or as agent,* if he assumes an exclusive control of 
 the property. So, also, if the vendor absconds, the fact 
 that the vendor's family remains in the house is imma- 
 terial, when the vendee exercises acts of dominion over the 
 personal property.' If the vendee owns the house in which 
 the goods are, and has the control and 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.^ 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.^ A steam-engine may be left on the premises, in 
 the charge of an agent, and used by the vendee.* A man 
 may have the exclusive possession of personal property 
 which is upon land occupied by him and the vendor in 
 common.^ If the vendee owns the land,^" or leases the 
 house^^ where the property is placed, it is sufficient if the 
 vendor removes from it. But a removal of the vendor 
 with the property to a hotel kept by the vendee is not 
 sufficient.^^ Wherever the constructive possession of land 
 has been considered of any importance, there have been 
 
 IManton v. Moore, 7 T. R. 67. SPunk v. Staats, 24 111. 632. 
 
 2Mills V. Warner, 19 Vt. 609. SPotter v. Mather, 24 Conn. 551; 
 
 SWilson V. Lott, 5 Fla. 305. vide Hofiner v. Clark, 5 Whart. 545; 
 
 ^Wilson V. Hooper, 12 Vt. 653, 36 Brawn v. Keller, 43 Penn. 104, S. C. 
 
 Am. Dec. 366. 3 Grant, 237, 82 Am. Dec. 554. " 
 
 ^Burrows v. Stebbins, 26 Vt. 659. lopacheco v. Hunsacker, 14 Cal. 
 
 BLudlow V. Hurd, 19 Johns. 218; 120; Sharon v. Shaw, 2 Nev. 289, 90 
 
 Wilson V. Lott, 5 Fla. 305. Am. Dec. 546. 
 
 ^Partridge v. Wooding, 44 Conn. iiBarr v. Reitz, 53 Penn. 256. 
 
 277. iSMyers v. Woods, i Phila. 24. 
 
WHEN POSSESSION IS FRAUD PER SB. 153- 
 
 both delivery and acts of domimon over tlie property 
 upon it. 
 
 § 130. Where the Rule Does Not Apply.— The rule doe* 
 not apply to sales of property which is exempt from ex- 
 ecution,^ or to sales of partnership property, as against 
 the creditors of one of the partners, because they can not 
 levy upon the partnership property.^ Upon the purchase 
 of the equity of redemption, only so much of the right a& 
 was absolute can be deemed fraudulent, and upon declar- 
 ing it alone void, the mortgagee is remitted to his pre- 
 existent rights under the mortgage.^ 
 
 § 131. Exchanges. — When an exchange is made by the 
 vendor, without the concurrence of or consultation with th& 
 vendee, no distinction can be allowed between the article 
 received and the one for which it is substituted.* 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 vend- 
 or as his agent.^ If the property is converted into mon,ey, 
 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 con- 
 nection between this property and any other property 
 which the vendor may have had, and creditors are put at 
 once upon inquiry as to the origin of the title.® The rule 
 does, however, apply to the chattel's oflFspring.'' 
 
 lAnthony v. Wade, i Bush, no; Criley v. Vasel, 52 Mo. 445. 
 
 Morton v. Ragan, 5 Bush. 334; Fos- 3Daniel v. Morrison, 6 Dana 
 
 ter V. McGregor, 11 Vt. 595; Patten_ 182, s. c. 6 J. J. Marsh. 398. ContrUy 
 
 V. Smith, 5 Conn. 196, s. 0. 4 Conn." Clayborn v. Hill, i Wash. (Va.) 177^ 
 
 450, 10 Am. Dec. 166. Generally i Am. Dec. 452. 
 
 conveyances of exempt property ^Mills v. Warner, 19 Vt. 609. 
 
 are not within the purview of the BLucas v. Birdsey, 41 Conn. 357; 
 
 statutes against fraudulent convey- Capron v. Porter, 43 Conn. 283. 
 
 ances. See section 220, post. BRidout v. Burton, 27 Vt. 383. 
 
 2Page V. Carpenter, 10 N. H. 77; 7Mott v. McNeil, i Aik. 162. 
 
154 WHEN POSSESSION IS FRAUD PER SE. 
 
 § 132. Possession by Feme CoTert. — The possession of the 
 wife is the possession of the husband,^ 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.^ 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 conceded to him 
 by the common law, over his wife and over the use of 
 property in her possession.'* When there is no proof that 
 the property in the possession of the husband is an acquisi- 
 tion from the wife's own money or property, it belongs to 
 the husband.* 
 
 § 133. Sufficiency of Change varies with Each Case.^ — 
 What constitutes a sufBcient change of possession must be 
 
 iKing V. Bailey, 6 Mo. 575. being no other change, was insuffi- 
 
 2Land v. Jeffries, 5 Rand. 599, ,cient. 
 211; Prior V. Kinney, 6 Munf. 510. IMilne v. Henry, 40 Penn. 352;- 
 
 SChiles V. Bernard, 3 Dana 95; Bolinger v. Gallagher, 144 Pa. St. 
 
 Leonard v. Baker, i M. and S. 251. 205, 29 W. N. C. 89, 22 Atl. 815. 
 But in McCarthy v. McDermott, 10 BSee sections 125, 126, ante, and 
 
 Daly 450, it was held that constitu- 139, 140, 141, 151, 152, 153, 154, 155, 
 
 ting the wife bailee of property post. 
 purchased from the husband, there 
 
WHEN POSSESSION IS FRAUD PER SE. 155 
 
 a question whicli 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 rela- 
 tion to the character and situation of the property at the 
 time of the sale.-^ When the goods are in the possession of 
 the vendee, there need be no formal delivery of the posses- 
 sion.^ It makes no difference whether the property is re- 
 moved from the owner, or the owner from the property. 
 It is not the mere place the property occupies which gives 
 color of possession to the former owner, but it is the con- 
 nection the place itself has with the former owner indicat- 
 ing his apparent control over it.^ An immediate delivery, 
 and an actual and continued change of possession, are con- 
 sistent with the retention of the property on the same 
 premises. Bemoval is an evidence, and a strong one, of 
 that change, but not the indispensable evidence. The ex- 
 ercise of ownership and control by the vendee, and, above 
 all, the absence of any such control by the vendor, are the 
 true tests by which to decide the validity of the transfer. 
 The change must be notorious, and the possession and con- 
 trol of the vendee indisputable. The goods may be left on 
 the premises, in the exclusive charge of an agent.* Where 
 the vendee buys the furniture of a hotel, it is not sufficient 
 for him to move to the hotel if the business is managed by 
 the vendor the same as before.^ Even a removal is not suf- 
 ficient, when the vendor accompanies the goods.^ 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. 
 
 § 134. Previous Ownership. — It is no excuse that the 
 mortgagee sold the goods to the mortgagor and took a 
 
 iHutchins v. Gilchrist, 3 Vt. 282. iHutchins v. Gilchrist, 23 Vt. 
 
 2Lake v. Morris, 30 Conn. 201; 82; Cartwright v. Phoenix, 7 Cal. 
 
 TManton v. Moore, 7 T. R. 67. 281; Lee v. Huntoon, i HofEm. Ch. 
 
 SBarr v. Reitz, 53 Penn. 256; 447; Funk v. Staats, 24 111. 632. 
 
 Graver v. Miller, 65 Penn. 456; Pa- SMyers v. Woods, i Phila. 24. 
 
 checo V. Hunsacker, 14 Cal. 120. 6Weil v. Paul, 22 Cal. 492; Gar- 
 man V. Cooper, 72 Penn. 32. 
 
156 WHEN POSSESSION IS FRAUD PER SE. 
 
 mortgage as a security for tlie purchase money.^ 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.^ 
 
 § 135. Notice. — If a creditor consents that the vendor 
 shall remain in possession, he cannot claim that the sale is 
 fraudulent on this account alone,^ but mere notice is not 
 suflBcient;* nor can a sheriff be prejudiced by any knowl- 
 edge of the judgment creditor.^ Knowledge that there is 
 a separate defeasance to an absolute deed makes no differ- 
 ence, for what is void may be taken advantage of by all 
 creditors^ 
 
 § 136. 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.^ Where a sale is made by a person who has no title 
 
 iWoodward v. Gates, g Vt. 358. King v. Bailey, 6 Mo. 575; Lassiter 
 
 In Meggott V. Mills, 1 Ld. Raym. v. Busey, 14 La. An. 699; Ivawrence 
 
 286, 12 Mod. 159, money was loaned v. Burnham, 4 Nev. 361, 97 Am. 
 
 to purchase goods, and a bill of Dec. 540; Swift v. Thompson, 9 
 
 sale taken as security, and the Conn. 63, 21 Am. Dec. 718; Miller i/. 
 
 transfer was held valid. The same Garman, 2 Pearson, 91. Contra, 
 
 doctrine is laid down in BuUer's Wooderman v. Baldock, 8 Taunt. 
 
 N. P. 258. And in Kreth v. Rogers, 676; Ludwig v. Fuller, 17 Me. 162, 
 
 loi N. C. 263, 7 S. E. 682, such a 35 Am. Dec. 245. 
 
 transaction was upheld. But it is BMeeker v. Wilson, i Gall*. 419; 
 
 said not to be in law in Clow v. Hower v. Geesaman, 17 S. & R. 
 
 Woods, 5 S. and R. 275, 9 Am. Dec. 251. Contra, Ludwig v. Fuller, 17 
 
 346; Brackett v. Harvey, 25 Hun Me. 162, 35 Am. Dec. 245. 
 
 502. SGaither v. Mumford, i N. C. T. 
 
 ^Spring V. Chipman, 6 Vt. 662. R. 167. 
 
 SSteel V. Brown, i Taunt. 381. 'Breckenridge v. Anderson, 3 J. 
 
 *Hower e. Geesaman, 17 S. &. R. J. Marsh. 710. 
 251; Stark V. Ward, 3 Penn. 328; 
 
WHEN POSSESSION IS FRAUD PER SE. 157 
 
 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.^ 
 
 § 137. 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.^ The rule is limited to 
 transfers by debtors. It has no application to transfers 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 
 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.^ 
 
 § 138. Conditional Sale.— A stipulation that the title shall 
 not pass to the vendee is not fraudulent, whether verbal* 
 or in writing,^ and the vendee's creditors can not seize the 
 
 llvaughlin v. Ferguson, 6 Dana 405, 3 Am. Dec. 224: Armington v. 
 
 III. Houston, 38 Vt. 448, 91 Am. Dec. 
 
 2Dawson v. Wood, 3 Taunt. 256; 366; Bigelow v. Huntley, 8 Vt. 151; 
 
 Craig V. Ward, 9 Johns. 197; How- Myers v. Harvey, 2 Penn. 478, 23 
 
 ard V. Sheldon, ir Paige, 558; Clinn Am. Dec. 69. Contra, Ketchum v. 
 
 V. Russell, 3 Blackf. 772. Watson, 24 111. 592; Martin v. 
 
 SMartin v. Mathlot, 14 S. & R. Mathiot, 14 S. &R. 214, 16 Am. Dec. 
 
 214; 16 Am. Dec. 491; Ayer z/. Bart- 491; Thompson v. Paret, 94 Penn. 
 
 lett, 23 Mass. 71; Peters v. Smith, 275. 
 
 42 111. 417. 5Dupree v. Harrington, Harp. 
 
 *Reeves z/. Harris, I Bailey, 563; 391; Ayer w. Bartlett, 23 Mass. 71; 
 
 Baylor v. Smithers' Heirs, i Litt. Bradley v. Arnold, 16 Vt. 382; Paris 
 
 105; Hussey v. Thornton, 4 Mass. v. Vail, 18 Vt. 277. 
 
158 
 
 WHEN POSSESSION IS FRAUD PER 
 
 property until the condition precedent is performed.^ A 
 third person may purchase the interests of the vendor and 
 
 1 "It has long been the settled law 
 in this commonwealth, that a sale 
 and delivery of goods on condition 
 that the property is not to vest until 
 the purchase money is paid or se- 
 cured does not pass the title to the 
 vendee, and that the vendor, in case 
 the condition is not fulfilled, has a 
 right to repossess himself of the 
 goods both against the vendee and 
 against his creditors claiming to 
 hold them under attachments. . . . 
 . . . The vendee in such cases ac- 
 quires no property in the goods. 
 He is only a bailee for a specific 
 purpose. The delivery which in 
 ordinary cases passes the title to 
 the vendee must take effect accord- 
 ing to the agreement of the parties, 
 and can only operate to vest the 
 property when the contingency con- 
 templated by the contract arises. 
 The vendee, therefore, in such 
 cases, having no title, can pass none 
 to others. He has only a bare right 
 of possession and those who claim, 
 under him, either as creditors or 
 purchasers, can acquire no higher 
 or better title. Such is the neces- 
 sary result of carrying into effect 
 the intention of the parties to a con- 
 ditional sale and delivery. Any 
 other rule would be equivalent to 
 the denial of the validity of such 
 contracts. But they certainly vio- 
 late no rule of law, nor are they 
 contrary to sound policy." Coggill 
 V, Hartford and N. H. Ry., 3 Gray 
 545-547- 
 
 "The presumption of property in 
 a bankrupt, arising from his posses- 
 sion and reputed ownership, became 
 so deeply imbedded in the English 
 law that, in process of time, many 
 persons in the profession, not ad- 
 verting to its origin in the statute of 
 
 bankruptcy, were led to regard it 
 as a doctrine of the common law, 
 and hence, in some states in this 
 country, where no such statute ex- 
 ists, the principles of the statute 
 have been followed, and conditional 
 sales of the kind now under consid- 
 eration have bSen condemned, 
 either as being fraudulent and void 
 as against creditors, or as amounting 
 in effect to absolute sales with a re- 
 served lien or mortgage to secure 
 the purchase money. This view is 
 based on the notion that such sales- 
 are not allowed by law, and that the 
 intent of the parties, however 
 honestly formed, cannot be carried 
 out. The insufficiency of this argu- 
 ment is demonstrated by the fact 
 that conditional sales are admissible 
 in several acknowledged cases, and, 
 therefore, there cannot be any rule 
 of law against them as such. They 
 may sometimes be used as a cover 
 for fraud, and, where this is charged, 
 all the circumstances of the case, 
 this included, will be open for the 
 consideration of a jury. Where no 
 fraud is intended, but the honest 
 purpose of the parties is that the 
 vendee shall not have the owner- 
 ship of the goods until he has paid 
 for them, there is no general princi- 
 ple of law to prevent their purpose 
 from having effect" Harkuess v. 
 Russell, 118 U. S. 663-670, 7 S. Ct. 
 51. And see the following cases; — 
 Summer v. Woods, 67 Ala. 139, 42 
 Am. Rep. 104; Fairbanks v. Eureka 
 Co., 67 Ala. 109, 42 Am. Rep. 105; 
 Simpson v. Shackelford, 49 Ark. 63, 
 4 S. W. 165; McRae v. Merrifield, 48 
 Ark. 160, 2 S. W. 780; Forbes v. 
 Marsh, 15 Conn. 384; Hart v. Car- 
 penter, 24 Conn. 427; Lewis v. 
 McCabe, 49 Conn. 141, 44 Am. Rep. 
 
WHEN POSSESSION IS FRAUD PER SB. 
 
 159 
 
 conditional vendee, and leave the prpperty in the posses- 
 
 217; Mack V. Story, 57 Conn. 407, 18 
 Atl. 767; Baels v. Stewart, 109 Ind. 
 371; 9 N. E. 403; McGirr v. Sells, 60 
 Ind. 249; Hodson v. Warner, 60 Ind. 
 14, 9 N. E. 403; Standard Implement 
 Co. V. Parlin and O. Co., 51 Kans. 
 544. 33 Pac- 360; Peabody v. Maguire, 
 79 Me. 572, 12 Atl. 630; Rogers v. 
 Whitehouse, 71 Me. 222; Barrett v. 
 Pritchard, 19 Mass. 512, 13 Am. Dec. 
 449; Marston v. Baldwin, 17 Mass- 
 6o5; Sargent v. Metcalf, 5 Gray 306, 
 66 Am. Dec. 368; Deshon v. Bigelow, 
 8 Gray 159; Whitney v. Eaton, 15 
 Gray 225; Hirschorn ti. Canney, 98 
 Mass.149; Chase V. Ingalls, 122 Mass. 
 381; Brewery Co. v. Merritt, 82 Mich. 
 198, 46 N. W. 379; Marquette Mfg. 
 Co. V. JefEery, 49 Mich. 283; Hein- 
 bockle V. Zungbaum, 5 Mont. 344, 
 5 Pac. 897; Silver Bow Mining Co. v. 
 I/Owry, 6 Mont. 288, 12 Pac. 652; 
 Stone V. Sleeper, 62 N. H. 3; Cole v. 
 Berry, 13 Vroom (42 N. J. I,aw) 308; 
 Marion Safe Co. v. Norton, 48 N. J. 
 I/. 410, 7 Atl. 418; Walker v. 
 Mitchell, 25 Hun 527; Canton v. 
 Webb, 42 N. Y. St. Rep. 187, 16 N. 
 Y. Supp. 932; Ballard v. Burgett, 40 
 N. Y. 314 (substantially overruling 
 Wait V. Green, 36 N. Y. 556, and 
 Smith V. Ivynes, i Seld. 41, in which 
 it had been held that a bona fide 
 purchaser from a vendee in posses- 
 sion under a conditional sale will be 
 protected against the original vend- 
 or); Redewill v. Gillen, 4 N. M. 78, 
 12 Pac. 872; Call V. Seymour, 40 Oh. 
 St 670; Leath V. Uttley, 66 Tex. 82, 
 17 S. W. 401; Hirsch v. Steele, 10 
 Utah, 18, 36 Pac. 49; Russell v. 
 Harkness, 4 Utah 197, 7 Pac. 865; 
 Shoshonetz v. Campbell, 7 Utah, 46, 
 24 Pac. 672; Lima Mach. Works v. 
 
 Parsons, — Utah , 37 Pac. 244; 
 
 Thompson v. Walker, 2 McCrary C. 
 Ct. 33; Bigelow V. Huntley, 8 Vt. 
 151; Buckmaster ». Smith, 22 Vt. 203; 
 
 McComb V. Donald, 82 Va. 903; De 
 Saint Germains v. Wind, 3 Wash. 
 T. 189, 13 Pac. 753; Dodd v. Bowles, 
 3 Wash. T. 383, 19 Pac. 156; Warner 
 V. Roth, 2 Wyo. 63. 
 
 But the opposite view is stated in 
 Stephens v. GifEord, 137 Pa. St. 219, 
 21 Am. St. Rep. 868, 20 Atl. 540, 27 
 W. N. C. 30, as follows: "A sale of 
 a chattel is the transfer of the prop- 
 erty in it for a consideration. It is 
 ordinarily effected by the delivery 
 of the thing sold to the buyer and 
 the delivery of the price or a secur- 
 ity therefor to the seller. This 
 transfer of the property in the 
 thing is effected by the transfer of 
 the thing itself to the possession of 
 the purchaser. But while this is 
 the general rule it is true that par- 
 ties may modify it within certain 
 limits by their contracts and may 
 make sales on such terms and con- 
 ditions as are convenient to them. 
 But when such terms and conditions 
 are prejudicial to others, or are 
 calculated to mislead the public, 
 I they will be held to be void as to 
 those who would otherwise be in- 
 juriously affected by them. It may 
 be convenient for the parties to 
 agree that the title to the thing sold 
 shall remain in the seller as a se- 
 curity for the price to be paid, and 
 as long as the rights of no persons 
 but themselves are affected by it, 
 the agreement may be enforced ac- 
 cording to its terms. As to pur- 
 chasers from and creditors of the 
 buyer, however, such an arrange- 
 ment gives him a deceptive appear- 
 ance of ownership and a false credit, 
 and for protection of such purchas- 
 ers and creditors the private agree- 
 ment between himself and his vend- 
 or will be disregarded. The res- 
 ervation of the title, notwithstand- 
 ing an agreement of sale and an 
 
160 
 
 "WHEN POSSESSION IS FRAUD PER SE. 
 
 sion of sucli conditional vendee.^ Groods 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 
 
 actual delivery in pursuance of it, 
 may be good between the parties, 
 but as to all persons dealing with 
 the buyer, without notice of the 
 reservation, it is without force and 
 void. Such an agreement can not 
 be sustained as a bailment. It is of 
 the essence of a contract of bail- 
 ment that the article bailed be re- 
 turned in its own or some altered 
 form to the bailor, so that he may 
 have his own again. In contracts 
 of sale, however, the seller stipu- 
 lates for a price as the equivalent of 
 his goods. The buyer takes the 
 goods as owner, the seller accepts 
 the price in exchange for them. If 
 the buyer pays the price without 
 taking possession of the goods, he 
 takes the risk of the solvency of his 
 -vendor, and a subsequent bona fide 
 purchaser will take a good title." 
 
 See Miller v. Browarsky, 130 Pa. 
 St. 372; Crawford v. Davis, 99 Pa. 
 5t. 576; Bdward's Appeal, 105 Pa. 
 ^t. 103; Brunswick and Balke Co. f. 
 Hoover, 95 Pa. St. 508, 37 Am. Rep. 
 .664, note; George v. Tufts, 5 Colo. 
 162; Lincoln v. Quynn, 68 Md. 299, 
 II Atl. 848. 
 
 But if the vendor, upon default 
 of payment, shall seize the property 
 before creditors secure liens upon 
 it, his title will be perfected. Hine- 
 man v. Matthews, 138 Pa. St. 204, 
 .27 W. N. C. 49, 20 Atl. 843. 
 
 In many States it is provided that 
 the instrument of conditional sale 
 shall be recorded, and unless it is 
 so recorded the transaction is gen- 
 erally void as against creditors and 
 purchasers without notice. See 
 Bridget v. Cornish, i Mackey 29, 
 
 (D. C.;; Stein v. Harris, 81 Ga. 
 681, 8 S. E. 206; Daniels v. Thomp- 
 son, 48 111. App. 393; Moline Plow 
 Co. V. Braden, 71 la. 141; 32 N. 
 W. 247; Morse v. C. R. I. and 
 P. Co., 73 la. 226, 34 N. W. 825; 
 Kinney v. Cay, 39 Minn. 210, 39 N. 
 "W. 140; Collins V. Wilhoit, 35 Mo. 
 App. 585; Tufts V. Thompson, 22 
 Mo. App. 564; Harrell v. Godwin, 
 102 N. C. 330, 8 S. E. 925; Sinker 
 V. Comparet, 62 Tex. 470 (and see 
 Loving Pub. Co. v. Johnson, 68 
 Tex. 273, 4 S. W. 532); Whitcomb 
 V. Wood worth, 54 Vt. 544; Baldwin 
 V. Van Wagner, 33 W. Va. 293, 10 
 S. E. 716; Rawson Mfg. Co. v. Rich- 
 ards, 69 Wis. 643, 35 N. W. 40. 
 
 But even though unrecorded such 
 a sale is valid as against general 
 creditors not haying liens. R. I. 
 Loc. Works v. Empire Lumber Co., 
 91 Ga. 639, 17 S. E. 1012. 
 
 Where conditional sales are re- 
 quired to be recorded by statute, a 
 sale made before the enactment of 
 the statute is valid without registra- 
 tion. Perry v. Young, 105 N. C. 
 463, II S. E. 511- 
 
 A distinction is sometimes taken 
 between ordinary conditional sales, 
 and conditional sales of goods to 
 be resold by the vendee, the latter 
 class being held void. Winchester 
 Wagon Works v. Carman, 109 Ind. 
 31, 9 N. E. 707; Paine v. Hall's 
 Safe and Lock Co., 64 Miss. 175, 11 
 So. 56. 
 
 But this distinction is denied in 
 Hirsch v. Steele, 10 Utah 18, 36 
 Pac. 49. 
 
 ISmith V. Foster, 18 Vt. 182. 
 
WHEN POSSESSION IS FRAUD PER SE. 161 
 
 for.^ In tMs 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 con- 
 sideration has been paid. This renders such contracts ob- 
 jects of jealousy, and they certainly ought to be critically 
 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 suflBcient 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 vendor setting up a con- 
 dition to the sale, yet suffering the vendee to be in posses- 
 sion but exercising full rights over the property, with the 
 intent and purpose of enabling him to obtain credit on the 
 strength of the property, he will not be able to avail him- 
 self of such condition, but the sale will be held to be abso- 
 lute 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.^ 
 
 § 139. Special Cases.— 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.* Delivery of possession is deemed to be 
 
 iMerrill v. Rinker, i Bald. 528; 5 S. & R. 275, 9 Am. Dec. 346; 
 
 Blood V. Palmer, 11 Me. 414, 26 Am. Williams v. L,owndes, i Hall, 579; 
 
 Dec, 547; ChaSee v. Sherman, 26 Divver v. McLaughlin, 2 Wend. 
 
 Vt. 237. 596, 20 Am. Dec. 655; Doane v. 
 
 2Ayer v. Bartlett, 23 Mass. 71; Eddy, 16 Wend. 523; Collins v. 
 
 Merrill z/. Rinker, I Bald. 528. Brush, 9 Wend. 198; Randall v. 
 
 3Sturtevant v. Ballard, 9 Johns. Cook, 17 Wend. 53; Coburn v. Pick. 
 
 337, 6 Am. Dec. 281; Clow v. Woods, ering, 3 N. H. 415. I4 Am. Dec. 375; 
 
162 WHEN POSSESSION IS FRAUD PER SE. 
 
 SO nrncli of the essence of the sale of chattels, that an agree- 
 ment to permit the vendor to keep possession is an extra- 
 ordinary exception to the usual course of dealing, and 
 requires a satisfactory explanation. There must be some 
 sufBcient motive, of which the court is to judge, for the 
 non-delivery of the goods, or the rule presumes it to be made 
 with a view to delay, hinder or defraud creditors.^ It is 
 necessary that the retention of the possession shall appear 
 to be for a purpose fair, honest and absolutely necessary, 
 or at least essentially 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 con- 
 sistent with public policy, and that it shall afford no unnec- 
 essary facility to deception;^ 
 
 § 140. When Tendor and Tendee Reside Together.— The 
 
 fact that the vendor and vendee reside together,^ board 
 together in the same house,* or live together in the house 
 upon the lot where the stable is which they use in com- 
 mon,^ does not take the case out of the operation of the 
 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.* But in such case the change 
 
 Wooderman v. Baldock, 3 Taunt. ISturtevant v. Ballard, 9 Johns. 
 
 676; Patten v. Smith, 3 Conn. 196 
 S. C. 4 Conn. 450, 10 Am. Dec. 166 
 Eeekman v. Bond, 19 Wend. 444 
 Randall v. Parker, 3 Sandf. 69 
 
 337, 6 Am. Dec. 281. 
 
 SClow V. Woods, 5 S. & R. 275, 9 
 Am. Dec. 346. 
 
 SJarvis v. Davis, 14 B. Mon. 529, 
 
 Swift V. Thompson, 9 Conn. 63, 21 61 Am. Dec. 166; Waller v. Cralle, 8 
 
 Am. Dec. 718; Osborne v. Tuller, 14 B. Mon. 11; Steelwagon v. Jeffries, 
 
 Conn. 529; Carter v. Watkins, 14 44 Penn. 407; Stiles z;. Shumway, 16 
 
 Conn. 240; Stevens v. Fisher, 19 Vt. 435; Hull z/. Sigsworth, 48 Conn. 
 
 Wend. 181; Hundley v. Webb, 3 J. 258, 40 Am. Rep. 167; McLeod v. 
 
 J. Marsh. 643, 20 Am. Dec. 189; O'Neill, 15 Ky. Law Rep. 152, 22 S. 
 
 Gibson v. Love, 4 Fla. 217; Mauldin W. 220. 
 
 v.. Mitchell, 14 Ala. 814; Millard v. ^Hoffner v. Clark, 5 Whart. 545. 
 
 Hall, 24 Ala. 209. The practice in BBrown v. Keller, 43 Penn. 104, 
 
 Connecticut differs slightly from S. C. 3 Grant 237, 82 Am. Dec. 554. 
 
 that of the other States. Swift v. 6Mott v. McNiel, i Aik. 162; 
 
 Thompson, 9 Conn. 63, 21 Am. Dec. Stiles v. Shumway, 16 Vt. 435. 
 718. 
 
WHEN POSSESSION IS FRAUD PER SE. 163 
 
 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.^ 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.^ A. 
 sister-in-law is not within this Qxception.* 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.^ 
 
 § 141. Mere Convenience. — Where possession has been 
 withheld pursuant to the terms of an agreement, some 
 good reason for the arrangement beyond the mere conve- 
 nience of the parties must appear.^ Gfoods can not be 
 
 lEvans v. Scott, 89 Penn. 136. ard v. Williams, i Bailey, 575; Brax- 
 
 2See Brown v. Mitchell, 102 N. ton v. Gaines, 4 H. & M. 151; Wash 
 
 C. 347, 9 S. E. 702, where the parties v. Medley, i Dana, 269; Enders v. 
 
 were husband and wife and construe- Williams, 1 Met. (Ky.) 346; Dodd v. 
 
 tive delivery was held suflacient. McCraw, 8 Ark. 83,46 Am. Dec. 301; 
 
 But in Murphy v. Mulgrew, Calif., Humphries v. McCraw, 9 Ark. 91; 
 
 36 Pac. 857, the court said: "The Danley v. Rector, 10 Ark. 211, 50 
 
 fact that a vendor and vendee are Am. Dec. 242; Clayton v. Brown, 17 
 
 husband and wife, or parent and Geo. 217; Goodwyn v. Goodwyn, 20 
 
 child, is no reason why the provi- Geo. 600. Contra, Stiles v. Shum- 
 
 sions of the statute should receive way, 16 Vt. 435. 
 
 a difEerent or more liberal construe- 4Smith v. Henry, 2 Bailey 118, 
 
 tion. These conditions give the S. C. i Hill, 16. 
 
 statute no additional elasticity. SMcVicker v. May, 3 Penn. 224; 
 
 The rule of construction is the same Braxton v. Gaines, 4 H. & M. 151. 
 
 in all cases, and the relationship 6CI0W v. Woods, 5 S. & R. 275, 
 
 existing between the parties is a 9 Am. Dec. 346; Jennings v. Carter, 
 
 matter wholly immaterial." Mc- 2 Wend. 446, 20 Am. Dec. 635; 
 
 Kee V. Gracelon, 60 Me. 165; HofE- Crouch v. Carrier, 16 Conn. 505, 41 
 
 ner v. Clark, 5 Whart. 546. Am. Dec. 156; Gardner v. Adams, 
 
 SCurry v. Ellerbe, i Bailey, 578; 12 Wend. 297; Doane v. Eddy, 16 
 
 Kid V. Mitchell, i N. & M. 334; Wend. 523; Randall v. Cook, 17 
 
 Jacks V. Tunno, 3 Dessau, i; Smith Wend. 53; McDonough v. Prescott, 
 
 V. Littlejohn, 2 McCord, 362; How- 62 N. H. 600. 
 
164 WHEN POSSESSION IS FRAUD PER SE. 
 
 retained for the purpose of being manufactured,^ or to 
 complete a process of manufacture in progress at the time 
 of the sale,^ or under a covenant to keep and deliver at a 
 future day,^ or upon a conditional sale,* or from motives of 
 benevolence on the part of the vendee.' An agreement on 
 the part of the vendor to pay for the use of the goods will 
 not repel the imputation of fraud.^ 
 
 § 142. Consistent with Title, not Terms of Deed.— The pos- 
 session 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 pos- 
 session to the vendor in the written evidence of the sale 
 will exempt the transaction from the imputation of fraud, 
 in law, upon the rights of the creditors of the vendor.' 
 But there is an essential difference between the effect of a 
 possession retained by the maker of an absolute bill of sale 
 and the possession retained by the maker of a mortgage. 
 The object of the one is to pass the absolute right of prop- 
 erty, 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 incompati- 
 
 ICarter w. Watkins, 14 Conn. 240; Eckhardt, 2 Whart. 302; Norton v. 
 
 Pritchett V. Jones, 4 Rawle, 260; Doolittle, 33 Conn. 405; Goldsbnry 
 
 Hall V. Gaylor, 37 Conn. 550. Con- v. May, i Litt. 254; Laughlin v. 
 
 tra, Clow V. Woods, 5 S. & R. 275, Ferguson, 6 Dana, 111; Webster v. 
 
 9 Am. Dec. 346. Peck, 31 Conn. 495; Paul v. 
 
 2Pritcliett V. Jones, 4 Rawle, 260. Crooker, 8 N. H. 288. Contra, 
 
 SBrummel v. Stockton, 3 Dana, Sydnor v. Gee, 4 Leigh, 535; Pow- 
 134; Hundley v. Webb, 3 J. J. ers v. Green, 14 111. 386; Cunning- 
 Marsh. 643, 20 Am. Dec. 189; ham v. Hamilton, 25 111. 228; 
 Grimes v. Davis, I Utt. 241; Mil- Pringle v. Rhame, 10 Rich. 72, 67 
 lard V. Hall, 24 Ala. 209. Am. Dec. 569; Jones v. Blake, 12 
 
 *Laughlin v. Ferguson, 6 Dana, Hill Ch. 629; Upson v. Raiford, 29 
 
 III. See section 138, ante. Ala. 188; Wheeler v. Train, 20 
 
 BMauldin v. Mitchell, 14 Ala. 814. Mass. 254. 
 
 ecoburn v. Pickering, 3 N. H. ^Hundley z/. Webb, 3 J. J. Marsh. 
 
 415, 14 Am. Dec. 375; Streeper v. 643, 20 Am. Dec. 189. 
 
WHEN POSSESSION IS FRAUD PER SB. 
 
 l'o5 
 
 bility.-^ 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 con- 
 tinuing 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.^ 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 posses- 
 sion until this may be ascertained. Stipulations to this 
 effect are often inserted in mortgage deeds.^ It is for this 
 reason that the retention of possession under a mortgage 
 is not deemed in the judgment of the law to be fraudu- 
 lent.* The condition, however, must be in the title, and 
 
 IMerrill v. Dawson, i Hemp. 563, 
 S.-C. II How. 373. 
 
 2Badlam v. Tucker 18 Mass. 389, 
 II Am. Dec. 202. 
 
 SHolmes v. Crane, 19 Mass. 607. 
 
 *Stone V. Grubbam, 2 Bulst. 217, 
 S. c. I Rol. Rep. 3; Martindale v. 
 Booth, 3 B. & A. 498; Reed v. Wil- 
 mot, 7 Bing. 577, s. c. 5 M. & P. 553; 
 Conard v. Atlantic Ins. Co., i 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, 17 Am. Dec. 236; 
 Ward V. Sumner, 22 Mass. 59; De- 
 Wolf V. Harris, 4 Mason 515, s. C. 
 4 Pet. 147; Brinley v. Spring, 7 Me. 
 241 ; Clayborn v. Hill, i Wash. (Va.) 
 177, I Am. Dec. 452; Hundley v. 
 Webb, 3 J. J. Marsh. 643, 20 Am. 
 Dec. 189; McGowen v. Hoy, 5 Litt. 
 239; Watson V. Williams, 4 Blackf. 
 26, 28 Am. Dec. 36; Thornton v. 
 Davenport, 2 111. 296, 29 Am. Dec. 
 388; Rose V. Burgess, 10 Leigh 186; 
 U. S. V. Hooe, 3 Cranch 73; Snyder 
 
 V. Hitt, 2. Dana 204; Merrill v. 
 Dawson, i Hemp. 563; s. c. 11 How. 
 375; Fairbanks v. Bloomfield, 5 
 Duer 434; Runyon v. Groshon, 12 
 N. J. Bq. 86; Wilson v. Russell, 13 
 Md. 494, 71 Am. Dec. 645. Contra, 
 Doak V. Brubacker, i Nev. 218; 
 Meyer v. Gorham, 5 Cal. 322; The 
 Romp, Olcott, 196; Sibly v. Hood, 3 
 Mo. 290; Tobias v. Francis, 3 Vt. 
 425, 23 Am. Dec. 217; Woodward v. 
 Gates, 9 Vt. 358; Clow v. Woods, 5 
 S. &. R. 275, 9 Am. Dec. 346; Welsh 
 V. Bekey, i Penna. 57; Doane v. 
 Eddy, 16 Wend. 523; Randall v. 
 Cook, 17 Wend. 53; Swift v. Thomp- 
 son, 9 Conn. 63, 21 Am. Dec. 718; 
 Case V. Winship, 4 Blackf. 425; King 
 V. Bailey, 6 Mo. 575; Gist v. Press- 
 ley, 2 Hill Ch. 318; Reeves v. Har- 
 ris, I Bailey, 563; Gay lor v. Harding, 
 37 Conn. 508. When the stipulation 
 is that the mortgagor shall have 
 possession, it is void though the 
 possession is with the mortgagee. 
 Meyer v. Gorham, 5 Cal. 322. 
 
166 WHEN POSSESSION IS FEAUD PER SE. 
 
 not simply in the contract. The title must depend on con- 
 dition, and be such as may be considered legal and reason- 
 able.^ "When the deed stipulates that the debtor may 
 remain in possession until default in payment of any or all 
 of the instalments, possession until default in payment of 
 all the instalments is consistent with the deed.^ 
 
 § 143. 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.^ 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.* 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.^ 
 A separate defeasance, instead of making the vendor's 
 possession consistent with his deed, and thereby fair, 
 evinces his guilt by making it more diflBcult 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 remaining only to themselves. It is too 
 late to disclose the truth after the injury arising from the 
 secrecy has been sustained.^ 
 
 § 114. Fraud in Fact.— The rule does not declare that in 
 conditional sales the retention of possession by the vendor 
 
 iHundley v. Webb, 3 J. J. Marsh. ^Jordan v. Turner, 3 Blackf. 309; 
 
 643, 20 Am. Dec. 189. Kitchell v. Bratton, 2 111. 300. 
 
 2Martindale v. Booth, 3 B. &. A. 5XJ. S. v. Hooe, 3 Cranch, 73. 
 
 498; Magee v. Carpenter, 4 Ala. BGaither v. Mumford, I N. C. T. 
 
 469. R. 167; I/aughlin v. Ferguson, 6 
 
 3Watson V. Williams, 4 Blackf. Dana, iii. Co«/ra, Holmes z;. Crane, 
 
 26; Gist V. Pressley, 2 Hill Ch. 318; i9Mass.6o7;Bartlettz'. Williams, 18 
 
 Mauey v. Killough, 7 Yerg. 440. Mass. 288; Sydnor v. Gee, 4 lyeigh 
 
 535- 
 
"WHEN POSSESSION IS FRAUD PER SE^ 167 
 
 may not be fraudulent, but that, as a general rule, it is 
 not necessarily so.^ Deeds of trust are subject to the same 
 principles as mortgages.^ 
 
 § 14:5. Condition Broken.— Possession after the condition 
 is broken is not fraudulent, for when a conveyance is not 
 fraudulent at the time of the making of it, it cannot be 
 made fraudulent by any subsequent matter.^ If the mort- 
 gagee fails to take possession immediately upon default, it 
 cannot be assumed as a conclusion of law that the mort- 
 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 juris. The retention 
 of possession by the mortgagor for an unreasonable length 
 of time may warrant the inference that the mortgage is 
 held up as a 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 credit- 
 ors. It must, from the very nature of the case, be a 
 question of fact for the solution of the jury.^ Upon the 
 extinguishment of the mortgage by the purchase of the 
 equity of redemption, the possession should be changed; 
 
 IHundley v. Webb, 3J. J. Marsh. c. 11 How. 375; Feurt v. Powell, 62 
 
 643, 20 Am. Dec. 189. Mo. 524. Contra, Armstrong v. 
 
 2Head v. Ward, i J. J. Marsh. Baldock, Gow. 33; Reed v. Eames, 
 
 280; Ravisies v. Alston, 5 Ala. 297; 19 111. 594; Cass v. Perkins, 23 111. 
 
 Johnson v. Cunningham, i Ala. 249; 382; Hanford v. Obrecht, 49 111. 146'; 
 
 Malone v. Hamilton, Minor, 286; Rhines v. Phelps. 8 111. 455. No 
 
 Hopkins v. Scott, 20 Ala'. 179. general rule can be established, but 
 
 ^La.6.j Lambert's Case, Shep. the mortgagee must act with 
 
 Touch. 65; Weaver v. Joule, 91 E. promptness, and must use every 
 
 C. L. 309; s. C. 3 C. B. (N. S.) 309; reasonable effort to reduce the prop- 
 
 De Wolf z/. Harris, 4 Mason, 515; S. erty into his immediate possession 
 
 C. 4 Pet. 147; Head v. Ward, i J. J. after a default of payment or other 
 
 Marsh. 280; Maples v. Maples, Rice condition broken, by which he be- 
 
 Ch. 300; Gist V. Pressley, 2 Hill Ch. comes entitled to possession (Cass v. 
 
 318; Simerson v. Bank, 12 Ala. 205; Perkins, 23 111. 382). 
 Planters' Bankz^. Willis, 5 Ala. 770; SPlanters' Bank v. Willis, 5 Ala. 
 
 Bearing v. Watkins, 16 Ala. 20; 770. 
 Merrill v. Dawson, i Hemp. 563; s. 
 
168 WHEN POSSESSION IS FRAUD PER SB. 
 
 but the retention will make only the purchase of the 
 equity of redemption void, and the mortgage will be valid.^ 
 
 § 146. Marriage Settlements. — The retention of posses-, 
 sion under a marriage settlement, whether antenuptial^ or 
 postnuptial,^ and whether of the husband's property* or 
 the wife's,^ is consistent with the deed, and does not ren- 
 der the settlement void. The wife's possession is con- 
 sidered as the possession of the trustee, and not of the 
 husband.® The fact that goods held by a trustee as the 
 separate property of the wife have been in the possession 
 of her husband for a considerable time makes no differ- 
 ence as to the right of the trustee to dispose of them, or 
 to recover the value if tortiously taken by or in behalf of 
 a creditor of the husband. It is difficult to see how the 
 wife could enjoy the avails of the property without his 
 participation, so long as they reside together. Indeed, 
 she may expressly authorize him to use or enjoy her 
 property without giving it to him, and his creditors can 
 not complain, as they will lose nothing by the transaction. 
 The possession of the property by the husband, if not 
 inconsistent with the nature of the trust, is not considered 
 fraudulent.^ 
 
 § 147. Purchases. — The interest is as much separate 
 property as the principal, and purchases made with it are 
 hers and subject to the same rules as the principal fund,* 
 and her possession is the possession of the trustee, and 
 not the possession of her husband.^ By the common law 
 the husband owns his wife's property. Consequently, if 
 
 iLaughlin v. Ferguson, 6 Dana ^Cadogan v. Kennett, Cowp, 432; 
 
 III. Contra, Clayborn v. Hill, i Cochran v. McBeath, i Del. Ch. 187. 
 
 Wast. (Va.) 177, 1 Am. Dec. 452; Bjarman v. WooUoton, 3 T. R. 
 
 Glasscock v. Batton, 6 Rand. 78. 618; Hazelinton v. Gill, 3 T. R. 620, 
 
 SCadogan v. Kennett, Cowp. 432; note, 3 Doug. 415. 
 
 Cochran v. McBeath, i Del. Ch. 187. ejarman v. WooUoton, 3 T. R. 
 
 SArundel v. Phipps, lo Ves. r39; 618. 
 
 Charlton v. Gardner, 11 Leigh, 281; 7Merritt v. Lyon, 3 Barb. no. 
 
 Waller v. Todd, 3 Dana, 503, 28 Am. SMerritt v. Lyon, 3 Barb. no. 
 
 Dec. 94; Larkin v. McMullin, 49 9Danforth v. Woods, 11 Paige, 9. 
 Penn. 29. 
 
WHEN POSSESSIOlSr IS FRAUD PER SE. 169' 
 
 the income from the separate estate is delivered to her^ 
 either with the intent that it shall belong to her, or with- 
 out any agreement that it shall still continue to be a part 
 of the separate estate, purchases made with it will be 
 liaible to the husband's creditors.^ There may be facts, 
 which might warrant the inference that the goods have 
 been purchased by the husband with his own funds, and 
 that he has resorted to the pretext that they are a part of 
 his wife's separate estate to protect them from the search 
 of his creditors. These are subjects proper for the con- 
 sideration of the jury .2 The trustee for the wife may pur- 
 chase the husband's goods at a sale under, an execution,, 
 and leave them in the possession of the wife, although she 
 resides with her husband.^ 
 
 § 148. Public Sale.— The notoriety of the change of pos- 
 session will, in some instances, repel the presumption of 
 fraud.* 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.^ But, after a sale at public 
 auction under a deed of trust, the purchaser may permit 
 the debtor to keep the goods.* After a sale under a dis- 
 tress for rent, the goods may be left in the possession of 
 the tenant.^ The same principle applies to a sale upon 
 the foreclosure of a mortgage.^ 
 
 IShirley v. Shirley, 9 Paige, 363; 2Si;Fitler v. Maitland, 5 W. &S. 307;. 
 
 Carne v. Brice, 7 M. &. W. 183. Dallam v. Fitler, 6 W. & S. 323;. 
 
 ^Merritt v. Lyon, 3 Barb. no. Woodham v. Baldock, Gow. 35, 
 
 SQuick V. Garrison, 10 Wend. note, s. c. 3 Moore, 11; Gutzweiler 
 
 33S; Cross v. Glode, 2 Esp. 574. v. Lacliman, 28 Mo. 434; Ravisies v^ 
 
 *Ryall V. RoUe, i Ves. 348; s. c. i Alston, 5 Ala. 297; Bank v. McDade, 
 
 Atk. 165, I Wils. 260; Armstrong v. 4 Port. 252. Contra, Rogers v. Vail, 
 
 Baldock, Gow. 33; Clark v. Cox, 118 16 Vt. 327; Thompson v. Yeck, 21 
 
 Mo. 652, 24 S. W. 221. 111. 73. 
 
 5 Weil V. Paul, 22 Cal. 492; Laugh- 7 Guthrie v. Wood, i Stark, N. P> 
 lin z/. Ferguson, 6 Dana, in; Leech 367; Waters v. McClellan, 4 Dall. 
 V. Shantz, 2 Phila. 310, s. c. 5 A. L. 208; Greathouse v. Brown, 5 Mon. 
 Reg. 620; Weeks v. Wead, 2 Aik. 64. 280, 17 Am. Dec. 67. 
 
 Contra, Jezeph v. Ingram, 8 Taunt. 8 Hanford v. Obrecht, 49 111. 146; 
 
 838, s. C. I Moore, 189. Clayton v. Anthony, 6 Rand. 2S5; 
 
 6 Leonard v. Baker, i M. & S. Simerson v. Bank, 12 Ala. 205. 
 
170 WHEN POSSESSION IS FRAUD PER SE. 
 
 § 14:9. Sale under Execution. — The retention of possession 
 after a sale under an execution rests upon even stronger 
 grounds. A distinction is established between a sale made 
 by the vendor or his individual agent, which, in the ab- 
 sence of a physical coercion, is properly a voluntary as well 
 as a private sale, and one made under a legal mandate and 
 by an officer of the law, and which is therefore properly a 
 •coercive sale. And it is because a sale of the latter class is 
 made under command of the law, and not under the mere 
 will of the owner — by the act of the law through its officer, 
 and not by the individual act of the party or his agent — 
 and with that fairness and publicity which the law requires 
 and expects from its officer, and not merely before such 
 witnesses as the owner may provide, that the law so far 
 confides in it as not to pronounce it conclusively void upon 
 the mere fact that the possession remains with the former 
 owner.^ The principle applies to sales by commissioners^ 
 as well as constables.^ It is immaterial whether the pur- 
 •chase is made by a stranger* or the execution creditor.^ 
 The advertisements may be given to the debtor to post, and 
 the purchase may be for a low price.^ The payment of 
 rent for the use of the goods makes a stronger case than if 
 the purchaser permits them to remain in the debtor's cus- 
 
 iLaughlin v. Ferguson, 6 Dana, Porche v. Labatut, 33 La. Ann. 544. 
 iii; Gates v. Gaines, 10 Vt. 346; 2Miles v. Edelen, i Duvall, 270. 
 
 Cole V. Davies, i Ld. Raym. 724; Spenningtou v. Chandler, 5 Har- 
 
 Myers v. Harvey, 2 Penn. 478; Perry ring. 394; Perry v. Foster, 3 Har- 
 
 V. Foster, 3 Harring. 293; Allen- ring. 293. 
 
 town Bank v. Beck, 49 Peun. 394; 4Kidd v. Rawlinson, 2 B. & P. 59, 
 
 Mclnstry v. Tanner, 9 Jolins. 135; S. C. 3 Esp. 52; Watkins v. Birch, 4 
 
 Floyd V. Goodwin, 8 Yerg. 484, 29 Taunt. 823; Latimer v. Batson, 4 B. 
 
 Am. Dec. 130; Bates v. Carter^ 5 Vt. & C. 652; Garrett v. Rhame, 9 Rich. 
 
 602; Brandon v. Cunningham, 2 408, 67 Am. Dec. 557; Boardman v. 
 
 Stew. 249; Anderson v. Brooks, 11 Keeler, i Aik. 158, 15 Am. Dec. 670. 
 Ala. 953; Coleman v. Bank, 2 Strobh. egimerson v. Bank, 12 Ala. 205; 
 
 Eq. 285, 49 Am. Dec. 671; Penning- Watkins v. Birch, 4 Taunt. 823; 
 
 ton V. Chandler, 5 Harring. 394; Boardman v. Keeler, i Aik. 158, 15 
 
 Dick z;. Ivindsay, 2 Grant, 431; Miles Am. Dec. 670; AllentoWn Bank w. 
 
 V. Edelen, 1 Duvall, 270; Craig's Ap- . Beck, 49 Penn. 394; Gates z/. Gaines, 
 
 peal, 77 Penn. 448; Magnes v. At- 10 Vt. 346. 
 
 water, 88 Penn. 496; Huebler v. 6Allentown Bank v. Beck, 49 . 
 
 Smith, 62 Conn. 186, 25 Atl. 658; Penn. 394. 
 
WHEN POSSESSION IS FRAUD PER SE. 171 
 
 tody without any consideration.^ The goods may be left 
 in the possession of the debtor upon condition that he shall 
 pay the money to the purchaser as he shall raise it by a 
 sale of them.^ Goods sold under an execution may be con- 
 veyed to a trustee for the sole and separate use of the 
 debtor's wife.^ It is not sufBcient 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.^ 
 
 § 150. 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 interven- 
 tion and abase of the process of the court can not 
 change the aspect of the case.^ 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 cestue 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." This doctrine in regard to the publicity 
 of the transfer does not make every public Sale, with or 
 without delivery, good. The question of fraud is always 
 open, aud fraud vitiates any sale.^ 
 
 § 151. 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 circumstances of each par- 
 
 IWatkins v. Birch, 4 Taunt. 823; Robinson v. Roberts, 2 Pearson, 232. 
 
 Myers v. Harvey, 2 Penn. 478. 6Xavennerz/.Robinson,2Rob. 280. 
 
 2Cole V. Davies, i Ld. Raym. 724. 7Pennington v. Chandler, 5 Har- 
 
 SAnderson v. Brooks, 11 Ala. 953. ring. 394; Taylor v. Mills, 2 Edw. 
 
 4Batchelder ®. Carter, 2 Vt. 168. Ch. 318; Dickenson v. Cook, 17 
 
 SStephensw. Barnett,7Dana, 257; Johns. 332; Farrington v. Caswelly 
 
 Tavenner v. Robinson, 2 Rob. 280; 15 Johns. 430. 
 
172 WHEN POSSESSION IS FEAUD PER SE. 
 
 ticular case.^ Sucli possession only need be taken as the 
 nature of the case will permit.^ Whenever the property 
 is not so in the power of the vendor as that he can give> 
 or so in the reach of the vendee as that he can receive 
 possession, the want of delivery does not constitute fraud, 
 provided the vendee takes possession as soon as it can 
 reasonably be had. The same acts are not necessary to 
 make a good delivery of ponderous articles, like a block 
 of granite or a stack of hay, as is required in case of an 
 article of small bulk, as a parcel of bullion.^ There must 
 be a manual delivery of a single sack of grain at the 
 moment of its sale, but upon the sale of two thousand 
 sacks this cannot be done without incurring great and un- 
 necessary expense and departing from the usual course of 
 business.* Upon the sale of furniture in a dwelling-house, 
 the property may be removed to another house, or the 
 vendor may leave the house and the vendee take possession 
 with all the ordinary indicia of ownership;^ but in case of 
 a sale of a large hotel, with many hundred lodging rooms, 
 parlors and sitting-rooms, besides the culinary department, 
 with its necessary offices all duly furnished, 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.® Upon the sale of a 
 single board, or of a cartload 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 dif- 
 ferent with a board-yard filled with many piles of lumber. 
 There the circumstances are such as to render an actual 
 
 iWhere actual delivery is im- 2Manton v. Moore, 7 T. R. 67. 
 
 possible constructive is sufficient. SSamuels v. Gorham, 5 Cal. 226; 
 
 White z;. O'Brien, 61 Conn. 34, 23 Doane z/. Bddy, i6Wend. 523; Ran- 
 
 Atl. 751; State, Wright v. Casteel, dall v. Cook, 17 Wend. 53. 
 SI Mo. App. 143 ; Ayers v. McCand- 4i,ay v. Neville, 25 Cal. 545. 
 
 less, 20 Wash. Law. Rep. 560, i Pa. ssteelwagon v. Jeffries, 44 Penn. 
 
 Adv. Rep. 265, 23 Atl. 344; Lathrop 407. 
 
 V. Clayton, 45 Minn. 124, 47 N. W. BMcKibbin v. Martin, 64 Penn. 
 
 544- 352, 3 Am. Rep. 588. 
 
WHEN POSSESSION IS FRAUD PER SE. 1*73 
 
 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 advertise the public of the sale.^ In such instances 
 the rule is not impaired, but the case does not come within 
 it.^ 
 
 § 153. Ponderous Articles.^ —Bricks in the kiln,* mown 
 hay in the field,^ unbaled hay,^ cattle roaming over unin- 
 closed plains,'' growing crops,^ trees in the woods^ and a 
 saf e^" are instances of articles not susceptible of immediate 
 change of possession. Machinery which may be separated 
 from the building and removed without injury to it or the 
 building, must be delivered at the time "of the sale.-^^ If a 
 person buys a store of goods, he may continue the business 
 in the same place.^^ 
 
 § 153. 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 
 
 iMcKibbin v. Martin, 64 Penn. 13 Cal. 58; Cummins v. Griggs, 2 
 
 352,3 Am. Rep. 588; Long z/.Knapp, Duvall,87. By statute in California, 
 
 54 Penn. 214; Haynes v. Hunsicker, a mortgage of growing crops must 
 
 26 Penn. 58. be recorded, and possession taken 
 
 SSydnor v. Gee, 4 Ivcigh, 535; as soon as they are harvested. (Qui- 
 
 Landz). JefEries, 5 Rand. 211, 599. riaque v. Dennis, 24 Cal. 154.) 
 
 ^Transferring wheat from ware- Spitch v. Burk, 38 Vt. 683. 
 
 house to cars is a sufficient delivery. lOBenford z/. Schell, 55 Penn. 393. 
 
 Lewis V. Agee, 15 Ore. 551, 16 Pac. nswift v. Thompson, 9 Conn. 63, 
 
 637. 21 Am. Dec. 718; Tobias v. Francis, 
 
 4Allen V. Smith, 10 Mass. 308. 3 vt. 425, 23 Am. Dec. 217; Gaylor 
 
 echaffin V. Doub, 14 Cal. 384. v. Harding, 37 Conn. 508. By stat- 
 
 eConway v. Edwards, 6Nev. 190; ute in Vermont, there need be no 
 
 Ticknor v. McClelland, 84 111. 471; change of possession of machinery 
 
 Thompson v. Wilhite, 81 111. 356; when the mortgage is recorded. 
 
 Hart V. Wing, 44 111. 141. (Walworth v. Readsboro, 24 Vt. 
 
 ''Walden v. Murdock, 23 Cal. 540, 252.) 
 
 83 Am. Dec. 135. ISHugus v. Robinson, 24 Penn. 9; 
 
 SBernal v. Hovious, 17 Cal. 541; Warner v. Norton, 20 How. 448; 
 
 Robbins v. Oldham, i Duvall, 28; Hall v. Parsons, 15 Vt. 358, s. C. 17 
 
 Herron v. Fry, 2Penn. 263; Bellows Vt. 271; Dunlap v. Bournonville, 26 
 
 V. Wells, 36 Vt. 599; Morton v, Ra- Penn. 72; Ford v. Chambers, 28 Cal. 
 
 gan, 5 Bush. 334; Visher v. Webster, 13. 
 
174 WHEN POSSESSION IS FRAUD PER SE. 
 
 to hand.^ Every species of divestiture which can give the 
 world notice should, however, be resorted to.^ Bach case 
 must in a great manner depend upon its own circumstances 
 in regard to the acts that may be requisite to manifest the 
 actual and continued change of possession.^ It is sufl5cient 
 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 fide, not merely colorable and deceptive, are questions 
 of fact that ought to be submitted to the jury.* If a kiln 
 of bricks is left in the exclusive possession of the vendor, 
 the sale will be fraudulent.^ But setting up stakes in the 
 yard and marking the bricks, if notorious, is suflScient.® 
 Merely telling the hands and others that a raft belongs to 
 the vendee is not a suflBcient 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.^ 
 A formal delivery of timber, accompanied with marking 
 and counting, is sufiBcient without any measurement.^ It 
 is not necessary that the marking of lumber in piles should 
 be done immediately at the time of the delivery. It is 
 sufiScient if it is done within a reasonable time, that is, as 
 soon as it conveniently can be done.® The delivery of the 
 key where goods are locked up is a delivery of the goods 
 themselves.!" It will be symbolical only when the vendor 
 remains in apparent connection with the goods, but is valid 
 in other cases." The vendor may be employed to cut and 
 
 l^artwright v. Phoenix, 7 Cal. Richards v. Schroeder, 10 Cal. 431. 
 
 281; lyuckenbach v. Brickenstein, 5 6Allen v. Smith, 10 Mass. 308. 
 
 W. & S. 145; Allen v. Smith, 10 ^Cadbury v. Nolen, 5 Penn. 320. 
 
 Mass. 308. SChase v. Ralston, 30 Penn. 539; 
 
 SChase v. Ralston, 30 Penn. 539; Sanborn v. Jiittredge, 20 Vt. 632, 
 
 Hutchins v. Gilchrist, 23 Vt. 82. 50 Am. Dec. 58; Hutchins v. Gil- 
 
 3L,ay z/. Neville, 25 Cal. 545. christ, 23 Vt. 82; Haynes v. Hun- 
 
 *McKibbin v. Martin, 64 Penn. sicker, 26 Penn. 58. 
 
 352, 3 Am. Rep. 588; Chase v. Rals- 9L,ong v. Knapp, 54 Penn. 514. 
 
 ton, 30 Penn. 539; Lay v. Neville, lOBarr v. Reitz, 53 Penn. 256; Ben- 
 
 25 Cal. 545. ford v. Schell, 55 Penn. 393. 
 
 BWoods V. Bugbey, 29 Cal. 466; HBarr v. Reitz, 53 Penn. 256. 
 
WHEN POSSESSION IS FRAUD PER SE. 175 
 
 cure growing crops.^ The vendee is entitled to a reason- 
 able time in whicli to complete the delivery, by reducing 
 the goods into his actual possession.^ 
 
 § 154. 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 suflBcient if the vendee without any gross 
 laches takes possession and asserts his title in a reasonable 
 time after he has an opportunity to take possession.^ It 
 is not in the power of the parties under such circumstances 
 to deliver the possession, and consequently a delivery is 
 not required. A familiar example of this doctrine is in 
 the case of a sale of a ship,* or of goods at sea,* where 
 possession is dispensed with upon the plain ground of its 
 impossibility, and it is suflScient if the vendee takes pos- 
 session of the property within a reasonable time after its 
 return. The exception extends to protect contracts relating 
 to ships which are at home, but in a port distant from 
 the place where the contract was made. The distance 
 between the place of sale and the port is immaterial." 
 The transfer of ships is commonly made by a bill of sale, 
 and the title passes upon the execution of the instrument.^ 
 The delivery of the bill of lading and policy of insurance 
 is suflBcient in sales of goods.^ 
 
 The vendee is not bound to follow the vessel from 
 
 iCnmininsz'. Griggs, 2Duvall, 87; v. Cope, 4 Binn. 258; Gardner v. 
 
 Fitch V. Burk, 38 Vt. 683. Contra, Howland, 19 Mass. 599. 
 Welsh V. Bekey, i Penn. 57. SPutnam v. Dutch, 8 Mass. 287. 
 
 SHaynes v. Hunsicker, 26 Penn. 7Putnam v. Dutch, 8 Mass. 287; 
 
 28; Walden v. Murdock, 23 Cal. 540. Portland Bank v. Stacey, 4 Mass. 
 
 SRicker v. Cross, 5 N. H. 570, 22 661, 3 Am. Dec. 253. In England 
 
 Am. Dec. 480; Meade v. Smith, 16 the delivery is made by delivering 
 
 Conn. 346; vide Burnell v. Robert- the grand bill of sale. In Portland 
 
 son, 10 111. 282. Bank v. Stacey, supra, it is said 
 
 Mtkinson v. Maling, 2 T. R. 462; that there is no distinction between 
 
 Badlam v. Tucker, 18 Mass. 389, 11 what is commonly called the grand 
 
 Am. Dec. 202; Morgan v. Biddle, i bill of sale in England, which is 
 
 Yeates, 3. necessary to pass ships at sea, and 
 
 SConard v. Atlantic Ins. Co., I the bills of sale for vessels used in 
 
 Pet. 386; Portland Bank v. Stacey, 4 America. 
 Mass. 661, 3 Am. Dec. 253; Dawes SDawes v. Cope, 4 Binn. 258. 
 
176 WHEN POSSESSION IS FRAUD PER SE. 
 
 port to port, but may reasonably wait her return to tlie 
 port where she belongs, and where the bill of sale is exe- 
 cuted.^ If the vendee appears chargeable with neglect in 
 not taking possession seasonably, it is only evidence of 
 fraud, and may be explained.^ But where the delay and 
 negligence are gross, they will of themselves defeat the 
 conveyance against any subsequent attacking creditor. 
 Whether they exist or not depends upon the situation and 
 circumstances of the vessel and of the vendee.^ What 
 precise 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.* A delay for one year has been held to 
 amount to an abandohment of all right under the convey- 
 ance.* A return and stay for eleven days, if unknown to 
 the vendee, and departure upon another voyage, does not ■ 
 vitiate the sale.® It is not necessary to have an agent in 
 the home port when the vessel is expected in another port.^ 
 Seizure on legal process before the expiration of a reason- 
 able time is sufficient excuse.^ Notice to the captain of 
 the transfer of the ship is equivalent to the taking of pos- 
 session.® 
 
 § 155. ConstructiTe 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 
 general principle that a constructive possession will pass 
 by a, constructive delivery.^" A bill of sale is sufficient, 
 
 iBadlam v. Tucker, i8 Mass. 389, BXurner v. Coolidge, 43 Mass. 350. 
 
 II Am. Dec. 202. 7joy v. Sears, 26 Mass. 4. 
 
 ZBadlam v. Tucker, 18 Mass. 389, SConard v. Atlantic Ins. Co., I 
 
 II Am. Dec. 202. Pet. 386; Putnam v. Dutch, 8 Mass. 
 
 3Joy V. Sears, 26 Mass. 4; Mair v. 287, 
 
 Glennie, 4 M. & S. 240. SBrinley v. Spring, 7 Me. 241. 
 
 ^Brinley v. Spring, 7 Me. 241. lOHutchins v. Gilchrist, 23 Vt. 82. 
 
 SMeeker v. Wilson, i Gall. 419. 
 
WHEN POSSESSION IS FRAUD PER SE. 177 
 
 for it places the property at the disposal of the vendee, 
 and gives him not only the title, but a constructive posses- 
 sion with power to reduce it to an actual possession at his 
 own pleasure.^ "When the goods are in the possession of 
 another part owner, a constructive delivery is sufficient.^ 
 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 sells some of them afterwards, 
 will not make the sale fraudulent.^ In case of a bailment, 
 the property passes when the sale is completed, and no 
 formal delivery is necessary. The sale is the only change 
 of which the property is susceptible.* After the execu- 
 tion of the bill of sale, the vendee is entitled to a reason- 
 able 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.^ 
 
 § 156. Bailee. — If the vendor of goods in the care and 
 keeping of a third person directs him to deliver them to 
 the vendee, and the party holding the goods on notice and 
 application of the vendee consents to retain the goods for 
 him, it is a sufficient delivery and transfer, for the actual 
 possession is then in such third person.^ Notice to the 
 
 iHutcMns V. Gilchrist, 23 Vt. 82. v. Bigelow, 28 111. App. 302; Angell 
 SThompson v. Wilhite, 81 111. 356. v. Pickard, 61 Mich. 561, 28 N. W. 
 SJones V. Dwyer, 15 East. 21. 680; Janney v. Howard, 150 Pa. St. 
 The indorsement and delivery of a 339, 24 Atl. 740. 
 warehouse receipt for goods stored 4I<inton v. Butz, 7 Penn. 89, 47 
 
 in the warehouse is equivalent to Ata. Dec. 501; Goodwin v. Kelly, 
 an actual delivery of the goods 
 Bank of Newport v. Hirsch, Ark. 
 27 S. W. 74; Greenbaum v. Mar- 
 tinez, 86 Cal. 459, 25 Pac. 12; Rum 
 sey V. Nickerson, 35 111. App. 188 
 Kerner v. Boardman, 39 N. Y. St, 
 
 42 Barb. 194; Nash v. Ely, 19 Wend. 
 523; Butt V. Caldwell, 4 Bibb. 458. 
 
 singraham v. Wheeler, 6 Conn. 
 277. 
 
 ^Barney -v. Brown, 2 Vt. 374; 
 Spaulding v. Austin, 2 Vt. 555; Lin- 
 Rep. 61, 14 N. Y. Supp. 787; Owens ton v. Butz, 7 Penn. 89; Whigham's 
 
 V. Clark, 78 Tex. 547, 15 S. W. loi 
 
 Appeal, 63 Penn. 194; Kroesen ii. 
 
 Where a stock of coal was sold a Seevers, 5 Leigh, 434; Warner v. 
 
 delivery of the keys of the ware- Norton, 20 How. 448; Harding v. 
 
 house and office was held sufficient. Janes, 4 Vt. 462; Pierce v. Chipman, 
 
 Miller v. Lacy, 7 Houst. 8; Vanscoy 8 Vt. 334; Kendall v. Fitts, 22 N. 
 
1V8 WHEN POSSESSION IS FRAUD PER SE. 
 
 bailee, however, is all tliat is required. If lie refuses to 
 deliver the property to the vendee or to acknowledge his 
 right to the same, this will not aflfect the rights of the 
 vendee.^ 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.^ 
 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.^ The principle does not apply when the bailee is 
 simply to pay over a part of the proceeds to the vendee.* 
 The vendor may subsequently interfere temporarily to re- 
 move the property from one place to another as the agent 
 of the vendee,^ or may be employed to rent or sell the 
 property.^ If the property is really kept by the bailee in 
 an open and notorious manner, the vendor may be employed 
 as a driver.'^ 
 
 § 157. Servant. — This principle is not applicable to a mere 
 servant.^ The posses'sion of a mere servant or hired man 
 is but the possession of the master, and does not, like the 
 possession of other third persons, put creditors upon in- 
 quiry. 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." 
 
 H. i; Morse v. Powers, 17 N. H. vendor alone is not sufficient. Judd 
 
 286; Hodgkins v. Hooks, 23 Cal. v. Ivangdon, 5 Vt. 231. 
 
 581; Montgomery v. Hunt, 5 Cal. IHow v. Taylor, 52 Mo. 592. 
 
 366; Walcott V. Keith, 22 N. H. 196; ^Harding v. Janes, 4 Vt. 462. 
 
 Potter V. Washburn, 13 Vt. 558; SWalcott v. Keith, 22 N. H. ig6. 
 
 Cartwright z;. Phoenix, 7 Cal. 281; IRichards t/.Schroeder,ioCal.43i. 
 
 Worman v. Kramer, 73 Penn. 378; BKendall v. Fitts, 22 N. H. i. 
 
 Comly V. Fisher, Taney, 121; Byrnes ^Harding v. Janes, 4 Vt. 462. 
 
 v. Hatch, 77 Cal. 241, 19 Pac. 482; 7Worman z/.Kramer, 73Penn. 378. 
 
 Chambersburg Nat.Bank z/. Buckeye SDoak v. Brubaker, i Nev. 2i8; 
 
 Iron Works, 46 111. App. 526. Hurlburd v. Bogardus, 10 Cal. 518; 
 
 But not if the bailee continues to Chester v. Bower, 55 Cal. 46. 
 
 let vendor use the property. Conrad ^Flanagan v. Wood, 33 Vt. 332; 
 
 V. vSmith, 2 N. D. 408, 51 N. W. 720. Sharon v. Shaw, 2 Nev. 289, 90 Am. 
 
 In Vermont the transfer is not valid Dec. 546; Sleeper v. Pollard, 28 Vt. 
 
 without notice to the bailee. Moore 709, 67 Am. Dec. 741; Gray v. Corey, 
 
 V. Kelley, 5 Vt. 34. Notice by the 48 Cal. 208. 
 
WHEN POSSESSION IS FRAUD PER SE. 179 
 
 § 158. 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 in- 
 compatible 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.^ Mere notice, 
 without any consent to hold for the vendee, will make the 
 transfer unimpeachable.^ 
 
 § 159. 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 
 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.^ It is not necessary that there should be a change 
 in the local situation of the property, for there may be a 
 change in the possession, while the site of the property 
 remains the same.* It is sufficient if the former owner is 
 divested of the legal and ostensible control. "When his 
 connection with the article has ceased, it will not be pre- 
 
 iButt V. Caldwell, 4 Bibb. 458; 2Wooley v. Edson, 35 Vt. 214. 
 
 Kroesen v. Seevers, 5 Leigh, 434; SHutcbins v. Gilchrist, 23 Vt. 82. 
 
 Lynde v. Melvin, 11 Vt. 683, 34 Am. 4Hutchins v. Gilchrist, 23 Vt. 82; 
 
 Dec. 717; Roberts v. Guernsey, 3 Cartwrlght v. Phoenix, 7 Cal. 281; 
 
 Grant, 237; Thomas v. Hillhouse, 17 Merritt v. Miller, 13 Vt. 416. 
 Iowa, 67. 
 
180 WHEN POSSESSION IS FRAUD PEE SE. 
 
 sumed that he is in the visible, ostensible occupancy of the 
 land.^ The vendee is entitled to a reasonable time to 
 take possession of the goods.^ 
 
 § 160. 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.^ If the change does not immediately follow the 
 sale, it is proper matter to go to the jury, on the question 
 of a fraudulent sale in fact.* 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.^ It is not sufficient 
 to take possession after the vendor's death.^ 
 
 § 161. Change as to Part. — Leaving a part of the goods 
 in the possession of the vendor does not affect the part of 
 which the vendee has the possession. Though it is, in 
 point of law, conclusive of the voidness of the sale, to the 
 extent of the property thus remaining in the possession of 
 the vendor, it cannot determine conclusively, and as to 
 other property, the question of fact whether the vendee, in 
 making the purchase, intended to defraud the creditors of 
 the vendor, or to aid him in the accomplishment of that 
 
 IMerritt v. Miller, 13 Vt. 416. Am. Dec. 493; Hackett v. Manlove, 
 
 2Walden z;. Murdock, 23 Cal. 540; 14 Cal. 85; Ragan j/. Kennedy, i 
 
 Morse z/. Powers, 17 N. H. 286. Tenn. 91; Gardenier w. Tubbs, 21 
 
 SBartlett v. Williams, 18 Mass. Wend. 169; Claytor v. Anthony, 6 
 
 288; Hall V. Parsons, 15 Vt. 358; Rand. 285; Hall v. Gaylor, 37 Conn. 
 
 s. c. 17 Vt. 271; Kendall z'. Samson, 550. See section n6, note i, i. 
 
 12 Vt. 515; Read v. Wilson, 22 111. how far mortgagee's possession 
 
 377, 74 Am. Dec. 159; Calkins v. purges fraud. 
 
 Lockwood, i5 Conn. 276, 41 Am. ^Kendall v. Samson, 12 Vt. 515; 
 
 Dec. 143; Blake v. Graves, 18 Iowa, Cruikshank v. Cogswell, 26 111. 366. 
 
 312; Cruikshank v. Cogswell, 26 BHenderson v. Mabry, 13 Ala. 
 
 111. 366; Sydnor v. Gee, 4 I^eigh, 713; Mauldin v. Mitchell, 14 Ala. 
 
 53S; Clute v. Steele, 6 Nev. 335; 81 4. 
 
 Smith V. Stern, 17 Penn. 360. Con- BShields v. Anderson, 3 Leigh, 
 
 ira, Carpenter z;. Mayer, 5 Watts. 729; Edwards v. Harben, 2 T. R. 
 
 483; Gibson v. Love, 4 Pla. 217; 587. 
 nenery v. Palmer, 6 Cal. 119, 65 
 
WHEN POSSESSION IS FRAUD PER SE. 181 
 
 object. Such a fact is not of itself, and without regard to 
 the other facts of the case, sufficient to require the conclu- 
 sion that the whole sale is fraudulent and void.-' The trans- 
 fer is good and operative as to the articles delivered, and 
 void and inoperative as to the residue.^ But the possession 
 and use of a part of the goods by the vendor is evidence to 
 be weighed by the jury, in determining upon the honesty 
 and validity of the transaction.^ 
 
 § 162. Choses in Action. — An assignment of a chose in ac- 
 tion is subject to the rule which requires a change of pos- 
 session.* In the case of things in action, the usual muni- 
 ments of title should be conferred upon the grantee. -In 
 the case of stocks, the natural and appropriate indication 
 of ownership is the entry upon the stock record.^ 
 
 There is no distinction between prior and subsequent 
 creditors.^ The assignment of the proceeds of a sale of 
 land by a non-resident, the proceeds being in the hands of 
 his agent, is not within the statute requiring change of 
 possession.'' 
 
 § 163. 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. 
 
 iBrown v. Foree, 7 B. Mon. 357, Woodbridge v. Perkins, 3 Day 364; 
 
 46 Am. Dec. 519. Hall v. Redding, 13 Cal. 214. In 
 
 sWeller v. Wayland, 17 Johns. some states this rule is abrogated 
 
 102; DeWolf V. Harris, 4 Mason, by statute. 
 
 515; s. c. 4 Pet. 147; Lee v. Hun- 6pinkerton z/. Manchester R. R. 
 
 toon, I Hoffm. Ch. 447; Spaulding v. Co., 42 N. H. 424; Shipman v. Mtna^ 
 
 Austin, 2 Vt. 555; Brown v. Foree, Ins. Co., 29 Conn. 245. 
 7 B. Mon. 357, 46 Am. Dec. 519; "Clow v. Woods, 5 S. & R 275, 9 
 
 De Bardleben z/. Beekman, I Dessau. Am. Dec. 346; Young v. Pate, 4 
 
 346; Hessing v. McCloskey, 37 111. Verg. 164; Smith v. Lowell, 6 N. H. 
 
 341. 67; Paul V. Crooker, 8 N. H. 288; 
 
 3Spaulding v. Austin, 2 Vt. 555; Woodrow z/. Davis, 2 B. Mon. 296; 
 
 Brown v. Foree, 7 B. Mon. 357, 46 Rankin v. HoUoway, 11 Miss. 614; 
 
 Am. Dec. 519. Contra, Foster v. Smith v. McDonald, 25 Geo. 377. 
 Hugh, 20 Miss. 416. 7Dorsey v. Banks, la., 55 N. W. 
 
 4Welsh V. Bekey, i Penn. 57; 574. 
 
182 PREFERENCES. 
 
 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 
 possession as to the public records, as proofs of the title to 
 such property. The possession must therefore be inconsis- 
 tent with the sale and repugnant to it in terms or opera- 
 tion, before it raises a just presumption of fraud.^ 
 
 OHAPTEB, VII. 
 PRBFBIlBlSrCES. 
 
 § 164. No New Consideration Necessary in Case of a Pref- 
 erence. — 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 diminished to 
 their prejudice. They have, therefore, an equitable inter- 
 est in it which the law, under certain circumstances, recog- 
 nizes and enforces. The statute is founded upon the prin- 
 ciple 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 Vhere the equities are equal the legal 
 title must prevail. An existing indebtedness is, therefore, 
 a good consideration within the proviso which saves the 
 rights of bona fide purchasers. There being no equity prior 
 to that of the vendee, the necessity which calls for a new 
 consideration in other cases does not exist.^ 
 
 iPhettiplace v. Sayles, 4 Mason Locke, 41 N. H. 486; Lyne v. Bank 
 
 312; Every v. Edgerton, 7 Wend. of Ky., 5 J. J. Marsh. 545; AUentown 
 
 259; Waller v. Todd, 3 Dana 503, Bank v. Beck, 49 Penn. 394; Ludwig 
 
 28 Am. Dec. 94; Avery v. Street, 6 v. Highley, 5 Penn. 132. 
 
 Watts 247; Bank of U. S. v. House- Sgeymour v. Wilson, 19 N. Y. 
 
 man, 6 Paige 526; Paulling v. Stur- 417; Adams v. Wheeler, 27 Mass. 
 
 gus, 3 Stew. 95; Barr v. Hatch, 3 199; Gibson v. Seymour, 4 Vt. 518; 
 
 Ohio 527; Short v. Tinsley, i Met. Gleason v. Day, 9 Wis. 498; Sey- 
 
 (Ky.) 397, 71 Am. Dec. 482; Tibbals mour v. Briggs, 11 Wis. 196; McMa- 
 
 V. Jacobs, 31 Conn. 428; Merrill v. han v. Morrison, 16 Ind. 172, 79 
 
PREFERENCES. 183 
 
 § 165. Bight to Prefer is a Gonseqaence of Ownership. — 
 
 Creditors generally trust a debtor upon the faith of his 
 property, and look to it for payment. Their means, more- 
 over, contribute equally to the fund with which it is ac- 
 quired. 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 im- 
 practicable 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 whosoever he paid would re- 
 ceive a preference. Such a principle would take away a 
 man's rights over his own property, and involve the neces- 
 sity of vesting an inquisitorial power somewhere.^ The 
 common law had no means or device to form such a power 
 or to execute such a principle. It therefore adopted an al- 
 together different set of principles. The obligation of a 
 debtor is purely^ersonal, and in no way affects his prop- 
 erty 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 credit- 
 ors, for they have no legal right in it by reason of being 
 creditors.^ 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.^ A debtor therefore has a discretion within the 
 limits of fraud. Society has to depend for its indemnity 
 upon the teachings of his heart and conscience; upon those 
 
 Am. Dec. 418; Wilson v. Ayer, 7 3Grover v. Wakeman, 11 Wend. 
 Me. 207; Towsley v. McDonald, 32 187; s. C. 4 Paige 23; Dance v. Sea- 
 Barb. 604; Stacy V. Deshan, 14 N. man, 11 Gratt. 778; Wil.son v. Por- 
 Y. Supr. 449; vide Harney v. Pack, syth, 24 Barb. 105; Lupton v. Cut- 
 12 Miss. 229; Pope V. Pope, 40 Miss. ter, 25 Mass. 298; Robinson v. Rape- 
 516. lye, 2 Stew. 86; Tillou v. Britton, 9 
 
 iWilson V. Forsyth, 24 Barb. 105. N. J. 120. 
 
 2I,ampson v. Arnold, 19 Iowa 479. 
 
184 
 
 PREFERENCES. 
 
 moral lights which all men possess, and upon the native 
 sense of justice.^ 
 
 iNiolon V. Douglas, 2 Hill Ch. 
 443, 30 Am. Dec. 368. 
 
 "The right of a debtor to give a 
 preference springs from his owner- 
 ship and having dominion over his 
 property, and if he acts in good 
 faith, pays an honest debt, and re- 
 serves no advantage to himself, the 
 payment is valid." Giddings v. 
 Sears, 115 Mass. 505-8. 
 
 "Every mortgage necessarily 
 tends to hinder or delay creditors 
 other than the mortgagee, but a 
 delay, necessarily resulting from a 
 fair and honest exercise of the right 
 to dominion over one's own prop- 
 erty and to pledge or otherwise dis- 
 pose of it, is neither an unjust nor 
 unlawful intesference with the 
 rights of others, and is not within 
 the terms of the statute." Sabin 
 V. Columbia Fuel Co., 25 Ore. 15, 
 42 Am. St. Rep. 756. 
 
 At common law a debtor may 
 prefer any creditor, and this rule 
 prevails in the American states. 
 Warren v. Jones, 68 Ala. 449; Shealey 
 V. Edwards, 75 Ala. 418, 49 Am. 
 Rep. 43; Schloss v. Maguire, Ala., 
 15 So. 275; Sutton V. Dana, 15 Colo. 
 98, 25 Pac. go; Farwellz/. Nilson, 133 
 111. 45, 24 N. E. 74; Schroeder v. 
 Walsh, 120 111. 403, II N. E. 70; 
 Hewitt V. Commercial Banking Co., 
 40 Neb. 820, 59 N. W. 693; Meyer z/. 
 Union Bag and Paper Co., 41 Neb. 
 67, 59 N. W. 696; Swift V. Hart, 35 
 Hun 130; Gorham v. Innis, 115 N. 
 Y. 87, 21 N. E. 722; Maack v. Maack, 
 49 Hun 507; Barnett v. Kinney, 147 
 U. S. 476, 13 S. Ct. 403; Union Bank 
 of Chicago v. Kansas City B^nk, 136 
 U. S. 223, 10 S. Ct. .1013; Stewart v. 
 Dunham, 115 U. S. 61, 5 S. Ct. 1163. 
 But preferences are not regarded 
 with favor in equity. Woonsocket 
 Rubber Co. v. Pally. 30 Fed. 
 
 808; Smith V. Craft, 11 Biss. 348. 
 It is not the purpose of statutes 
 regulating assignments to affect or 
 qualify the common law right of 
 debtors to make preferences among 
 their creditors. "But it is urged on 
 the part of the plaintiffs, that no pur- 
 pose to make a general assignment, 
 or its accomplishment, is essential to 
 bring the case within the operation 
 of the statute, when the insolvent 
 debtor has, by a single transaction, 
 disposed of all his property to one, 
 or a portion only, of his creditors, 
 in payment of his debt or debts, 
 owing to him or them, to whom the 
 transfer is so made. The support 
 of that proposition would require 
 the conclusion that such a transfer 
 of his property for that purpose is, 
 in legal effect, an assignment for the 
 benefit of crecfitors within the 
 statute. There is apparently no 
 warrant for such a construction of 
 the statute in the language employ- 
 ed to express the legislative intent. 
 Nor is it seen how its purpose, so 
 manifested, can be extended to de- 
 feat the right of such debtor to 
 make, and one or some only of his 
 creditors to take, transfer of his en- 
 tire property as payment of valid 
 debt or debts owing by him to such 
 creditor or creditors, to whom it is 
 made, and to hold it for that pur- 
 pose as against other creditors of the 
 debtor." Tompkins v. Hunter, 24 
 N. Y. Supp. 8; see Middletonv. Pol- 
 lock, 2 Ch. D. 104, Ex parte Oa.VLis&, 
 12 Ch. D. 314; Sandwich Mfg. Co. v. 
 
 Max, S. D. , 58 N. W. 14, 24 
 
 L. R. A. 524, (1894) (reviewing the 
 cases and rejecting the doctrine of 
 Straw V. Jenks, 6 Dak. 414, 43 N. 
 W. 941, in an able opinion in which 
 the subject is thoroughly discussed); 
 Farwell v. Nilsson, 133 111. 45, 24 N. 
 
PREFERENCES. 
 
 185 
 
 § 166. 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.^ 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 
 
 E. 74, (rejecting the doctrine of 
 White z/. Cotzhausen, 129 U. S. 329); 
 Weber v. Mick, 131 111. 520, 23 N. 
 E. 646; Young V. Clapp, 147 111. 176, 
 35 N. E. 372; Hargadine v. Hender- 
 son, 97 Mo. 375, II S. W. 218; Cross 
 V. Carstens, 49 Oh. St. 548, 31 N. E. 
 506; Jaffray v. Wolfe, i Okl. 312, 33 
 Pac. 945; Martin Brown Co. v. Siebe, 
 6 Tex. Civ. App. 232, 26 S. W. 327; 
 Hudson V. Eisenmayer Milling and 
 Elevator Co., 79 Tex. 401, 15 S. W. 
 385; Lamar v. Pool, 26 S. C. 441, 2 
 S. E. 322; Magovern v. Richards, 27 
 S. C. 272, 3 S. E. 340; Union Nat. 
 Bank v. Kansas City Nat. Bank, 136 
 U. S. 223, 10 S. Ct. 1013, (practically 
 overruling Dahlman v. Jacobs, r6 
 Fed. 614; Kellogg v. Richardson, 19 
 Fed. 70; Kerbs v. Ewing, 22 Fed. 
 693; Freund v. Yaegerraan, 26 Fed. 
 812; State V. Morse, 27 Fed. 261; 
 Clapp V. Ditman, 21 Fed. 15; and 
 Perry v. Corby, 21 Fed. 707); May v. 
 Tenney, 148 U. S. 60, 13 S. Ct. 491; 
 Clement v. Johnson, 85 la. 566; First 
 Nat. Bank of Chicago v. No. Wis. 
 Lumber Co., 41 111. App. 383; Gilbert 
 V. McCorkle, no Ind. 215, 11 N. E. 
 2g6; Carnahan v. Schwab, 127 Ind. 
 507,26 N. E. 67; Warner z/.Littlefield, 
 89 Mich. 329,50 N. W. 72i;(reviewing 
 the cases and distinguishing Ken- 
 dall V. Bishop, 76 Mich. 634, 43 N. W. 
 
 645); Bank of Montreal z/. J. B. Potts 
 Salt and Lumber Co., 90 Mich. 345; 
 51 N. W. 512; Costello V. Chamber- 
 lain, 36 Neb. 45; Manning z',Beck,i29 
 N. Y. I, 14 L. R. A. 198, 29 N. E. 
 
 90; Cutter V. Pollock, N. D. 
 
 59 N. W. 1062; O'Donnell v. 111. 
 Steel Co., 53 111. App. 314. But see 
 Citizens' Nat. Bank v. Renick, 13 
 Ky. Law Rep. 747, 18 S. W. 364; At- 
 kinson V. Weidner, 79 Mich. 575, 
 44 N. W. 1042, following Kendall v. 
 Bishop, supra; Archer v. Long, 32 S. 
 ■ C. 171, II S. E. 86. See section 327 
 post. 
 
 1" The law recognizes the fact 
 that in the forum of conscience all 
 debts do noi stand on the same 
 level. A man may properly and 
 honestly prefer and pay a friend, 
 who, from pure friendship and 
 desire to assist, has indorsed for 
 him, rather than one who, for profit, 
 has assumed the business risk of 
 dealing with him. Or he may 
 rightly prefer and pay a poor cred- 
 itor, who would be distressed by 
 the loss of his debt, to a rich one 
 to whom the loss would be insig- 
 nificant." Sandwich Mfg. Co. v. 
 Max., S. D., 58 N. W. I4,24L. R. A. 
 524; Dana v. Bank of U. S., 5 W. 
 and S. 223. 
 
186 PREFERENCES. 
 
 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.^ The law, moreover, can not recognize 
 any distinction between legal obligations, nor can it defer 
 its own wisdom and honesty to the wisdom and honesty 
 of a delinquent debtor.^ 
 
 Experience also shows that a preference is sometimes 
 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 confi- 
 dence of priority of payment, and perfect indemnity in 
 case of failure. It often happens that the creditor who 
 has been the means of decoying others is secured, while 
 the real business creditor, who parts with his property on 
 liberal terms, and in manly confidence, is made the victim.^ 
 It is true that the debts preferred are usually considered 
 and termed by the 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 
 fra,ud, assuredly deserves any other name than that of 
 honorable. It is not an agreement that it implies, but a 
 conspiracy.* Such an exercise of the right to prefer 
 
 IMurray z/. Riggs, 15 Johns. 571, SMurray z;. Riggs, 15 Johns. 571; 
 
 s. c. 2 Johns. Ch. 565. s. c. 2 Johns. Ch. 565. 
 
 2Grover v. Wakeman, 11 Wend. ^Nicholson v. Leavitt, 4 Sandf. 
 
 187; s. c. 4 Paige 23, 25 Am. Dec. 624. 252; s. c. 6 N. Y. 510; 10 N. Y. 591. 
 
PREFERENCES. 
 
 187 
 
 simply constitutes the debtor an agent to obtain money 
 from one man and bestow it upon another at his will and 
 pleasure.^ 
 
 § 167. Preferences Not Fraudulent.— By virtue of his abso- 
 lute 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 pay- 
 ment of one debt rather than another. The maxim vigi- 
 lantibus non dormientibus leges subserviunt applies. Hence 
 it is that a creditor who can secure a suflSciency, according 
 to law, to satisfy his claim, is entitled to hold it against 
 other creditors.^ This right, moreover, is not affected by 
 
 IBoardman v. Halliday, lo Paige, 
 223. 
 
 ^Benton v. Thornhill, 2 Marsh. 
 427; s. c. 7 Taunt. 149; Eveleigh v. 
 Purrsford, 2 Mood. & Rob. 539; 
 Cameron v. Montgomery, 13 S. & 
 R. 128; Ragan v. Kennedy, i Tenn. 
 91; Waterbury v. Sturtevant, 18 
 Wend. 353; McMenomy v. Roose- 
 velt, 2 Johns. Ch. 446; Lewis v. 
 Whittemore, 5 N. H. 364, 22 Am. 
 Dec. 466; Terry v. Belcher, i Bailey, 
 568; Phettiplace v. Sayles, 4 Mason, 
 312; Sommerville v. Horton, 4 
 Yerg. 541, 26 Am. Dec. 242; Hoof- 
 smith V. Cope, 6 Whart. 53; Maples 
 V. Maples, Rice Ch. 300; Floyd v. 
 Goodwin, 8 Yerg. 484; Wiley v. 
 Lashlee, 8 Humph. 717; McQuin- 
 nay v. Hitchcock, 8 Tex. 33; 
 Fromme v. Jones, 13 Iowa, 474; 
 Parnell v. Howard, 26 Iowa, 38; 
 Cowles V. Rickett, I Iowa, 582; 
 Bruce v. Smith, 3 H. & J. 499; Cole 
 V. Albert, i Gill, 412; Glenn v. 
 Grover, 3 Md. 212, s. c. 3 Md. Ch. 
 29; Anderson v. Tydings, 3 Md. 
 Ch. 167; Mayfield v. Kilgour, 31 
 Md. 240; Grogan v. Cooke, 2 Ball. 
 & B. 233; Holbird v. Anderson, 
 5 T. R. 235; Green v. Tanner, 
 49 Mass. 411; Harrison v. Phillips' 
 Academy, 12 Mass. 456; Guild v. 
 
 Leonard, 35 Mass. 511; BufEum 
 V. Green, 5 N. H. 71, 20 Am. 
 Dec. 562; Hendricks zi. Robin- 
 son, 2 Johns. 283, s. c. 17 Johns. 
 438; Lewkner v. Freeman, Prec. 
 Ch. 105, s. c. I Eq. Cas. Abr. 149, 2 
 Freem. 236; Williams v. Brown, 
 4 Johns. Ch. 682; M'Broom v. 
 Rives, I Stew. 72; Eaton v. Patter- 
 son, 2 Stew. & Port. 9; Stover v. 
 Harrington, 7 Ala. 142, 41 Am. Dec. 
 86; Gary v. Colgin, 11 Ala. 514; 
 Lowrie v. Stewart, 8 Ala. 163; 
 Hinde v. Vattier, i McLean, 110, s. 
 c. 7 Pet. 252; Coolidge v. Curtis, 7 
 A. L. Reg. 334; Blakey's Appeal, 7 
 Penn. 449; Worman v. Wolfersber- 
 ger, 19 Penn. 59; Hutchinson v. 
 McClure, 20 Penn. 63; Hickman v. 
 Quinn, 6 Yerg. 96; Young v. Stall- 
 ings, 5 B. Mon. 307; Bullock v. 
 Irvine, 4 Munf. 450; Bates v. Coe, 
 10 Conn. 280; Kemp v. Walker, 16 
 Ohio, 118; Ohoteau v. Sherman, 11 
 Mo. 385; Moseley v. Gainer, 10 Tex. 
 393; Hubbard v. Taylor, 5 Mich. 
 155; Bull V. Harris, 18 B. Mon. 195; 
 Walker v. Adair, i Bond, 158; Cox 
 V. Fraley, 26 Ark. 20; Vose v. 
 Stickney, 19 Minn. 367; Harkins v. 
 Bailey, 48 Ala. 376; Morris v. Till- 
 son, 81 111. 607; McWilliams v. 
 Rodgers, 56 Ala. 87; Heidingsfel- 
 
188 
 
 PKEFBRENCES. 
 
 the debtor's insolvency,^ or tlie preferred creditor's knowl- 
 edge of such insolvency.^ 
 
 der V. Slade, 60 Geo. 596; Frank v. 
 Welch, 89 111. 38; Preusser v. Hen- 
 shaw, 49 lo^a, 41; King v. Phillips, 
 45 N. Y. Supr. 633; Totten v. 
 Brady, 54 Md. 170; H. B. Claflin 
 Co. V. Rodenberg, loi Ala. 213, 13 
 So. 272; Dixon V. Higgins, 82 Ala. 
 284, 2 So. 289; Dawson v. Flash, 97 
 Ala. 539, 12 So. 67; Dean v. Grimes, 
 72 Cal. 442, i4Pac. 178; Stockgrow- 
 ers' Bank v. Newton, 13 Colo. 245, 
 22 Pac. 444; Freishenmeyer v. 
 Lehmkuhl, 29 111. App. 465; Haines 
 V. Chandler, 26 111. App. 400; Con- 
 ner V. Hardwick, 53 Kans. 60; 35 
 Pac. 777; First Nat. Bank v. Naill, 
 52 Kans. 211; 34 Pac. 797; Davis v. 
 McCarthy, 52 Kans. 116, 34 Pac. 
 399; Parlin and O. Co. v. Spencer, 
 SI Kans. 632, 33 Pac. 362; Schram 
 V. Taylor, 51 Kans. 547, 33 Pac. 315; 
 Voorhis v. Michaelis, 45 Kans. 255, 
 25 Pac. 592; De Wolf v. Arm- 
 strong, 46 Kans. 523, 26 Pac. 1038; 
 De Ford v. Nye, 40 Kans. 665, 20 
 Pac. 481; Whitfield v. Stiles, 57 
 Mich. 410, 24 N. W. 119; Angell v. 
 Pickard, 61 Mich. 561, 28 N. W. 
 680; Neumann v. Calumet, 57 
 Mich. 97, 23 N. W. 600; Molaska 
 Mfg. Co. V. Steele, 36 Mo. App. 496; 
 Hellman v. Bick, 55 Mo. App. 168; 
 Britton v. Boyer, 27 Neb. 522, 43 
 N. W. 356; Rothell V. Grimes, 22 
 Neb. 526, 35 N. W. 392; J. V. Far- 
 well Co. V. Wright, 38 Neb. 445, 56 
 N. W. 984; Mandeville v. Avery, 
 124 N. Y. 376, 36 N. Y. St. Rep. 
 338, 26 N. E. 951; Salem First Nat. 
 Bank v. Salem Capital Flour Mills 
 Co., Ore., 39 Fed. 89; Ball v. Camp- 
 bell, 134 Pa. St. 602, 19 Atl. 802; 
 First Nat. Bank v. North, 2 S. D. 
 480, 51 N. W. 96; Wallis V. Snyder, 
 79 Tex. 479, 15 S, W. 492; Carey 
 V. McKee, 40 Fed. 858; Talley 
 V. Curtain, Va., 54 Fed. 43; Purth 
 
 V. Snell, 6 Wash. 542, 33 Pac. 830; 
 Ilage V. Campbell, 78 Wis. 572, 
 
 47 N. W. 179. 
 
 The fact that the pressure of 
 other creditors caused the prefer- 
 ence will not make it fraudulent. 
 McAlister v. Honea, 71 Miss. 256, 
 14 So. 264. Nor will the fact of 
 pressure from the preferred credit- 
 or invalidate the preference. Gib- 
 bons V. McDonald, 20 Can. S. C. 587, 
 Rouse V. Frank, 84 Ga. 623, 11 S. E. 
 147; Kaufman v. Schneider, 35 111. 
 App. 256; Johnson v -Robinson, 68 
 Tex. 399. 4 S. W. 625. 
 
 IGlenn v. Grover, 3 Md. 212; s. 
 c. 3 Md. Ch. 29; Waite ». Hudson, i 
 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; I/loyd v. Williams, 21 
 Penn. 327; Ford v. Williams, 3 B. 
 Mon. 550; Johnson v. McGrew, 11 
 Iowa, 151, 77 Am. Dec. 137; Gallo- 
 way V. People's Bank, 54 Geo. 441; 
 Lathrop Hatton I^umber Co. v. 
 Bessemer Sav. Bank, 96 Ala. 350, 11 
 So. 418; Gilkerson Sloss Com. Co. 
 V. Carnes, 56 Ark. 414, 19 S. W. 
 1061; Schroeder v. Bobbitt, 108 Mo. 
 289, 18 S.' W. 1093. But where a 
 debtor knows that he is insolvent 
 the fact that he secures one creditor 
 while unable to secure others raises 
 an inference of fraud. Hastings 
 Malting Co. v. Heller, 47 Minn. 
 71, 49 N. W. 400. 
 
 STerry ». Belcher, i Bailey, 568; 
 Sibley v. Hood, 3 Mo. 290; Hind- 
 man V. Dill, II Ala. 689; Fromme v. 
 Jones, 13 Iowa 474; Hessing v. Mc- 
 Closkey, 37 111. 341; Green v. Tan- 
 ner, 49 Mass. 411; Walsh v. Kelley, 
 42 Barb. 98; s. c. 27 How. Pr. 359; 
 Johnson v. McGrew, 11 Iowa, 151; 
 77 Am. Dec. 137; Olmstead ®. Mat- 
 
PRBPERBNOBS. 
 
 189 
 
 § 168. Although Others Lose their Debts.— The fact that 
 a suit is pending,^ or that the transfer includes all the 
 debtor's property,^ or all the property which is not ex- 
 empt from execution,^ or that other creditors lose their 
 debts by reason of the debtor's inability to meet all 
 the demands against him,* does not necessarily affect the 
 
 tison, 45 Mich. 617; Skipper v. 
 Reeves, 93 Ala. 332, 8 So. 804; Mat- 
 thews V. Reinhart, 43 111. App. 169; 
 Frey v. Hamsou, 29 111. App. 243; 
 Straight v. Roberts, 126 Ind. 383, 
 26 N. E. 73; Kelly v. Sprague, 58 
 Hun 611, 13 N. Y. Supp. 64; Mar- 
 quam v. Sengf elder. Ore., 32 Pac. 
 676; Erdall v. Atwood, 79 Wis. i, 47 
 N. W. 1124. In order to invalidate a 
 preference on the ground of fraud- 
 ulent intent it is necessary that the 
 preferred creditor should not only 
 know of the fraudulent intent but 
 should also participate in it. And 
 the knowledge that the debtor is in- 
 solvent does not constitute partici- 
 pation in the fraudulent intent. 
 Pollock V. Meyer, 96 Ala. 172; 
 Hodges V. Coleman, 76 Ala. 103; 
 Olmstead v. Mattison, 45 Mich. 617, 
 ■8 N. W. 555; Alberger v. White, 117 
 Mo. 347; Shelley v. Boothe, 73 Mo. 
 74, 39 Am. Rep. 481; First Nat. Bank 
 z/.Lowry,36 Neb. 290; Dudley v. Dan- 
 forth,6i N. Y. 626; Sabin v. Columbia 
 Fuel Co., 25 Ore. 15, 42 Am. St. 
 Rep. 756; Worland v. Kimberlin, 6 
 B. Mon. 608, 44 Am. Dec. 785; Ford 
 V. Williams, 3 B. Mon. 550. 
 
 IKuykendall v. McDonald, 15 
 Mo. 416, 57 Am. Dec. 212; Waterbury 
 V. Sturtevant, 18 Wend. 353; Pringle 
 ■V. Sizer, 2 Rich. (N. S.) 59; Allen v. 
 Kennedy, 49 Wis. 549. See section 
 50, ante. 
 
 2Alton V. Harrison, L. R. 4 Ch. 
 Ap. 622; 38 Iv. J. (N. S.) Ch. 669, 17 
 W. R. 1034, 21 L. T. (N. S.) 282; 
 Sibly V. Hood, 3 Mo. 290; Giddings 
 V. Sears, 115 Mass. 505; Hale v. 
 
 Stewart, 14 N. Y. Supr. 591. See 
 section 47, ante. 
 
 ' SYoung V. Dumas, 39 Ala. 60. 
 See section 220 posi. 
 
 40coee Bank v. Nelson, i Cold. 
 186; Ferguson v. Kumler, 11 Minn. 
 104; Ivee V. Flannagan, 7 Ired, 471; 
 Hopkins w. Beebe, 26 Penn.BsiKeen 
 V. Kleckner, 42 Penn. 529; Lord v. 
 Fisher, 19 Ind. 7; McGregor v. 
 Chase, 35 Vt. 525; Prior v. White, 
 12 111. 250; Cason v. Murray, 15 
 Mo. 378; Hall V. Arnold, 15 Barb. 
 599; Ewing V. Runkle, 20 111. 448; , 
 Waddams v. Humphrey, 22 111. 661; 
 Wheaton v. Neville, 19 Cal. 41; 
 Brewster v. Bours, 8 Cal. 501; 
 National Band v. Sprague, 20 N. J. 
 Bq. 13; Guignard v. Aldrich, 10 
 Rich. Eq. 253; Central R. R. Co. v. 
 Claghorn, Speer's Ch. 545; Williams 
 V. Jones, 2 Ala. 314; Giddings v. 
 Sears, 115 Mass. 503; Laidlaw v. 
 Gilmore, 47 How. Pr. 67; Francis v. 
 Rankin, 84 111. 169; Jordan v. White, 
 38 Mich. 253; Martin v. Duncan, 47, 
 111. App. 84; Loche V. Duncan, 47 
 111. App. 110; Webber v. Mackey, 
 31 111. App. 369; So. White Lead Co. 
 V. Haas, 73 la. 399, 35 N. W. 494; 
 Emporia First Nat. Bank v. Ride- 
 nour, 46 Kans. 707, 27 Pac. 150; 
 Houser v. Beaty, 93 Mich. 49, 53 
 N. W. 628; W. W. Kendall Boot and 
 Shoe Co. V. Bain, 46 Mo. App. 581; 
 Deering v. Collins, 38 Mo. App. 80; 
 Bank v. Lowrey, 36 Neb. 290, 54 
 N. W. 568; Tompkins v. Merriman, 6 
 Kulp 543, 155 Pa. 440, 26 Atl. 659; 
 Barr v. Church, 82 Wis. 382, 52 N. 
 W. 591. 
 
190 
 
 PREFERENCES. 
 
 validity of the preference. There is a distinction to be 
 observed between the effect of a transfer by a debtor in 
 failing circumstances made to pay one or more of his 
 debts, and that intent to hinder, delay or defraud his 
 other creditors against which the statute is aimed. The 
 effect of the preference may be to delay them, or even 
 to prevent them from obtaining payment at all; but 
 if the motive is to pay the preferred debt, the transaction 
 is not invalidated. The statute is aimed only at intended 
 fraud, but the payment of a debt to one creditor is no fraud 
 upon other creditors — no legal injury to them.-' 
 
 § 169. Preference not Aifected by Person or Mode.^ — The 
 
 preference may be given to any lawful demand against the 
 
 lYork County Bank v. Carter, 38 
 Penn. 446, 80 Am. Dec. 494; Meade 
 V. Smith, 16 Conn. 346; Kirtland v. 
 Snow, 20 Conn. 23; Hessing v. Mc- 
 Closkey, 37 111. 341 ; Bentz v. Rockey,' 
 69 Penn. 71. "In the absence of 
 statute a debtor in failing circum- 
 stances may prefer one creditor to 
 another by giving him adequate 
 security for his debt to the exclus- 
 ion of others. The right to give 
 such a preference necessarily im- 
 plies the right of the creditor to 
 accept it, and if he accepts the pref- 
 erence in good faith, without fraud- 
 ulent purpose on his part, it will 
 not be void on account of the motive 
 which may have prompted the 
 debtor to make it. One creditor is 
 not bound to take care of another. 
 He has a right in good faith, to de- 
 mand and receive the property of 
 his debtor as security for his debts, 
 although he knows that he will 
 thereby withdraw the means of sat- 
 isfying other creditors, and though 
 he may know that the debtor there, 
 by intends to hinder, delay or de- 
 fraud such other creditors. It is 
 simply a race of diligence in which 
 the law rewards the successful party 
 provided he acts in good faith." 
 
 Sabin v. Columbia Fuel Co., 25 Ore. 
 15, 42 Am. St. Rep. 756. "Every 
 mortgage necessarily tends to hin- 
 der or delay creditors other than 
 the mortgagee, but a delay neces- 
 sarily resulting from a fair and 
 honest exercise of the right to 
 dominion over one's own property, 
 and to pledge or otherwise dispose 
 of it, is neither an unjust nor un- 
 lawful interference with the rights 
 of others and is not within the 
 terms of the statute." ibid. 
 
 SThe debtor may prefer a relative. 
 Fleming v. Weagley, 32 111. App. 
 183; Heeren v. Kitson, 28 111. App, 
 259; Byrnes v. Shaw, 45 111. App. 
 281; Frank v. Humphrey, 121 111. 
 250, 10 West. 601, 12 N. E. 720; 
 Laird v. Davidson, 124 Ind. 412, 25 
 N. E. 7; Puller V. Croco, 46 ICans. 
 634, 26 Pac. 944; Winfield Nat. 
 Bank v. Croco, 46 Kans. 620, 26 
 Pac. 942; Iosco Sav. Banks'. Barnes, 
 100 Mich. 1, 58 N. W. 606; Van 
 Raalte v. Harrington, loi Mo. 602, 
 14 S. W. 710, II L. R. A. 424, 32 C. 
 Iv. J. 145; Sellers v. Bailey, 29 Mo. 
 App. 174; Brock V. Hudson Co. Nat. 
 Bank, 48 N. J. Eq. 615, 23 Atl. 269; 
 Gerald v. Gerald, 28 S. C. 442, 6 S. 
 E. 290; Nelson z/. Kinney, 93 Tenn. 
 
PREFERENCES. 
 
 191 
 
 debtor, whether due or not.i and whether held by his 
 brother,^ his wife,^ or his attorney,^ or any other person. A 
 corporation may prefer a director.^ The preference may 
 
 428, 25 S. W. 100; Gainer v. Provi- 
 dence Nat. Bank, 151 U. S. 420, 14 
 S. Ct. 390; Brickley v. Walker, 68 
 Wis. 563, 32 N. W. 773; Barr v. 
 Church, 82 Wis. 382, 52 N. W. 591. 
 
 ICarpenter jy.Muren, 42 Barb. 300; 
 Hill V. Northrop, 9 How. Pr. 525. 
 
 2Thorpe v. Thorpe, 12 S. C. 154. 
 
 SMayfield v. Kilgour, 31 Md. 240; 
 Kyger v. Skirt Co., 34 lud. 249; 
 Kluender v. Lynch, 4 Keyes, 361; 2 
 Abb. Ap. 538; Buchner v. Stine, 48 
 Mo. 407; Wilkinson v. Wilkinson, i 
 Head. 305; Mangnm v. Finucane, 38 
 Miss. 354; Randall v. I/unt, 51 Me. 
 246; Monroe v. May, 9 Kans. 466; 
 French v. Motley, 63 Me. 326; Jor- 
 dan 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, 
 I/Oomis V. Smith, 37 Mich. 595. 
 ^Hill V. Rogers, Rice Ch. 7. 
 
 6PRKFERBNCBS BY IlSrSOI,VENT 
 
 Corporations^ — An insolvent cor- 
 poration has the same right to pre- 
 fer a creditor as a natural person. 
 Gottlieb V. Miller, 47 111. App. 588; 
 State v. Bank of Maryland, 6 G. and 
 J. 205, 26 Am. Dec. 561; Bank of 
 Montreal v. Potts S. and L. Co., 90 
 Mich. 345, 51 N. W. 512; Manhattan 
 Brass Co. v. Webster Glass Co., 37 
 Mo. App. 145; Shockley v. Fisher, 
 76 Mo. 498; Bergen v. Porpoise Fish- 
 ing Co., 41 N. J. Eq. 238, 3 Atl. 404; 
 Wilkinson v. Bauerle, 41 N. J. Eq. 
 635, 7 Atl. 514; Vail V. Jameson, 
 41 N. J. Eq. 648, 7 Atl. 520; Coats v. 
 Donnell, 94 N. Y. 168; Allis v. Jones, 
 45 Fed. Rep. 148; Pyles v. Riverside 
 Furniture Co., 30 W. Va. 123, 2 S. E. 
 909. "A corporation is authorized to 
 
 continue the management of its af- 
 fairs, to deal with its property and to 
 assign it for value in the course of 
 business, notwithstanding its actual 
 insolvency, so long as there is an 
 honest intention and a reasonable 
 expectation on the part of the com- 
 pany of redeeming its fortunes; 
 and it is only when a corporation is 
 about to defraud its creditors by 
 waste of its assets, or when the in- 
 solvency of the company is hope- 
 less, so that further prosecution of 
 the enterprise would clearly be at 
 the expense of creditors, that the 
 law may interfere to protect their 
 lien. It has accordingly been held 
 that a corporatioa which is insolvent 
 and unable to pay all of its credit- 
 ors in full may continue its opera- 
 tions and pay ofi its debts in regu- 
 lar course of business, though a 
 part of the creditors be thereby de- 
 prived of their security." Morawetz 
 on Private Corporations, 2nd edition, 
 section 786, and see cases cited. 
 
 "A corporation within the scope 
 of the purposes for which it was 
 incorporated may do any act in fur- 
 therance of those purposes which 
 an individual in similar circum- 
 stances might do, and though insol- 
 vent may prefer some creditor to 
 others, even though such creditors 
 are among the directors of the cor- 
 poration." City of St. Louis v. 
 Alexander, 23 Mo. 524. Supporting 
 this dictum as to the right of an in- 
 solvent corporation to give a prefer- 
 ence see the cases above cited and 
 Catlin V. Bank, 6 Conn. 233, 241; 
 Pondville and Co. v. Clark, 25 Conn. 
 97; Smith V. Skeary, 47 Conn. 47; 
 Central R. R. Co. v. ClSghorn, 
 Speer's Ch. 545; Shelley f. Boothe, 
 
192 
 
 PREFERENCES. 
 
 be given in any mode whicli tlie law recognizes as legal for 
 
 73 Mo. 77, 39 Am. Rep. 481; Dough- 
 erty V. Cooper, 77 Mo. 528. 
 
 An Insoi,vent Corporation 
 Mat Prefer its Own Directors. 
 — "Being an officer in the corpora- 
 tion did not deprive Buell of the 
 right to enter into competition with 
 other creditors and run a race of 
 diligence with them, availing him- 
 self in the contest of his superior 
 knowledge and of the advantages of 
 his position to. obtain security for 
 the payment of his debt," Buell z/. 
 Buckingham, 16 la. 284, 85 Am. Dec. 
 516; Smith V. Skeary, 47 Conn. 47; 
 Kitchen v. R. R., 69 Mo. 243; Foster 
 V. Mullanphy Mill Co., 92 Mo. 79; 
 Smith V. Nat. Ry. E. and I Assn. ,'47 
 Mo, App. 462; Duncomb v. R. R., 
 84 N. Y. 199-207; Gordon v. Preston, 
 I Watts 387; Twin Lick Oil Co. v. 
 Marburg, i Otto 587; Whitwell v. 
 Warner, 20 Vt. 444-5; Planters' 
 Bank v. Whittle, 78 Va. 737; Gould 
 V. Ivittle Rock M. R. T. Ry., C. C, 
 52 Fed. 680. It is immaterial that 
 they voted for the measure by 
 which their own debts are secured. 
 Garrett z/. Burlington Plow Co. ,70 la. 
 697, 59 Am. Rep. 461, 29 N. W. 395; 
 Warfield M.Marshall Co.Canning Co., 
 72 la. 567,34 N.W.467. A stockholder 
 may be a preferred creditor. Burr v. 
 McDonald, 3 Gratt. 215; Reichwald 
 V. Commercial Hotel Co., 106 111. 
 439; contra, South Bend Toy Co. 
 
 V. Pierre F. and M. Ins. Co., 
 
 S. D. — , 56 N. W. 98. But the 
 following cases seem to support the 
 doctrine that an insolvent corpora- 
 tion cannot prefer its own officers 
 or directors. Beach v. Miller, 130 
 111. 162, 22 N. E. 464; Roseboom v. 
 Whittaker, 132 111. 81, 23 N. E. 339; 
 Hays V. Citizens Bank, 51 Kans. 
 535. ,33 Pac. 318; Rose v. Winn, 93 
 Mo. 503; ^yilliams v. Jones, 23 
 Mo. App. 132; Kankakee Woollen 
 
 Mill Co. V. Kampe, 38 Mo. App. 229; 
 Smith V. Putnam, 61 N. H. 632; 
 Third Nat. Bank v. Elliott, 42 Hun 
 121; Sicardi v. Keystone Oil Co., 149 
 Pa. St. 148, 24 Atl. 163; Consolidated 
 Tank Line Co. v. K, C. Varnish Co., 
 45 Fed. 7; Koehler v. Black 
 River Falls Iron Co., 67 U. S. 2 
 Black 715; Thompson «. Huron 
 Lumber Co., 4 Wash. 600, 30 Pac. 
 741, 31 Pac. 25. 
 
 And it seems that there are circum- 
 stances in which an insolvent cor- 
 poration cannot prefer any creditor. 
 "When a corporation is hopelessly 
 insolvent, and there is no reasonable 
 or well founded hope for a continu- 
 ation of its business, and these 
 facts are known to its officers and 
 directors, then all the assets of the 
 corporation become a trust fund in 
 the hands of the directors to be ad- 
 ministered by them as trustees or 
 agents for the equal benefit of all 
 the creditors of the concern, and 
 any attempted preferences, either 
 in favor of the directors themselves, 
 or of a stranger, will not be upheld." 
 Kankakee Wollen Mill Co. v. 
 Kampe, 38 Mo. App. 229. In equity 
 the assets of a corporation hope- 
 lessly insolvent become a trust 
 fund for the benefit of its creditors 
 to be managed by the directors, and 
 after such confessed insolvency the 
 directors cannot, in equity, secure 
 any advantage to themselves or to 
 a creditor. Roan v. Winn, 93 Mo. 
 503, 4 S. W. 736; Williams v. Jones, 
 23 Mo. App. 132. See also Rouse v. 
 Mch. Nat. Bank, 46 Oh. St. 493, 15 
 Am. St. Rep. 644, 5 L. R. A. 378, 
 22 N. E. 393, 22 Chicago Leg. 
 News, 41; Lyons Thomas Hard- 
 ware Co. V. Perry Stove Mfg. Co., 
 86 Tex. 143, 24 S. W. 16, 27 S. W. 100; 
 Geo. F. Smith Co. v. McGroarty, 
 136 TJ. S. 237, 10 S. Ct. 1017; 
 
PREFERENCES. 
 
 193 
 
 Haywood v: Lincoln Lumber Co., 
 64 Wis. 639, 26 N. W. 184; Kendall 
 V. Bishop, 76 Mich. 634, 43 N. W. 
 645; Sabin v. Columbia Fuel Co., 25 
 Ore. 15, 42 Am. St. Rep. 756, 34 
 Pac. 692; Shields v. Clifton Hill 
 Land Co., 94 Tenn. 123, 45 Am. St. 
 Rep. 700; Lyons-Thomas Hardware 
 Co. V. Perry Stove Co., 86 Tex. 143; 
 22 L. R. A. 802; see note, 27 S. W. 
 100; Olney v. Conanicut Land Co., 
 16 R. I. 361, 18 Atl. 181; Thompson 
 V. Huron Lumber Co., 4 Wash. 600, 
 30 Pac. 741; Conover v. Hull, 10 
 Wash. 673, 45 Am. St. Rep. 810, 39 
 Pac. 166; Haywood v. Lincoln 
 Lumber Co., 64 Wis. 639, 26 N. W. 
 184; Hope V. Valley City Salt Co., 
 25 W. Va. 789; Larrabee v. Franklin 
 Bank, 114 Mo. 592, 35 Am. St. Rep. 
 774- 
 
 In a recent case, Lyons-Thomas 
 Hardware Co. v. Perry Stove 
 Mfg. Co., 86 Tex. 143, 22 L. R. A. 
 802, 27 S. W. 100, this sub- 
 ject was thoroughly discussed 
 and the authorities exhaustively 
 canvassed, both in the opinion of 
 the court and in the briefs of coun- 
 sel. The court, per Chief Justice 
 Stayton, held that a corporation 
 can do no acts except those which 
 are in furtherance of the objects 
 expressed in its charter, that when 
 it becomes insolvent so that it can 
 no longer hope to carry on the 
 business for which it was organized, 
 the purposes of its charter can no 
 longer be accomplished, and it has 
 no right to prefer creditors because 
 the right to give a preference is not 
 essential to the fulfillment of any 
 of the purposes for which the cor- 
 poration may have been created. 
 
 With regard to the doctrine that 
 the assets of an insolvent corpora- 
 tion constitute a trust fund, in the 
 hands of the directors, for the pay- 
 ment of its creditors, the Supreme 
 Court of Alabama has lately stated 
 
 both the afiSrmative and negative 
 views. 
 
 In Corey n. Wadsworth, 99 Ala. 
 68, II So. 350, 38 Am. and Eng. 
 Corp. Cases, McClellan, J., dissent- 
 ing, the court said: "The question 
 is one of grave and growing import- 
 ance in this State, and we have 
 therefore felt it pur duty to collate 
 the authorities. It will be seen 
 that the modern authorities, almost 
 without exception, use the same 
 strong condemnatory language of 
 any and all attempts by directors 
 of an insolvent corporation to 
 have themselves indemnified and 
 preferred over the other creditors 
 of the company. The assets are, in 
 a sense, a trust fund in their hands 
 for the payment of the corpora- 
 tion's debts, and it is both their 
 moral and legal duty to maintain 
 perfect equality in their adminis- 
 tration and disbursement, at least 
 to this extent, that they cannot 
 prefer themselves. We need go no 
 further in this case. In looking at 
 the authorities it will be seen that 
 the right of the directors of an 
 insolvent corporation to prefer 
 themselves is withheld from them 
 not alone on the ground that the 
 assets are a trust fund of which 
 they are trustees for the creditors. 
 Notice is taken of the superior 
 knowledge they necessarily have, 
 and the great advantage this would 
 and does give them in a race of 
 diligence. But the principle ex- 
 tends further. In a conveyance by 
 which they attempt to pay or 
 secure themselves, that necessary 
 element of all valid contracts, 
 opposing interest in the seller and 
 buyer, is wanting. They are both 
 seller and buyer. Such transac- 
 tions by a trustee are always voida- 
 ble on the ground of public policy. 
 
 At what stage in a corporation's . 
 affairs must it be pronounced 
 
194 
 
 PREFERENCES. 
 
 insolvent, so as to bring it within 
 the principles we have declared? 
 It is not enough that its assets are 
 insufficient to meet all its liabili- 
 ties if it be still prosecuting its line 
 of business with the prospect and 
 expectation of continuing to do so, 
 in other words, if it be, in good 
 faith, what is sometimes called a 
 "going" business or establishment. 
 Many successful corporate enter- 
 prises, it is believed, have passed 
 through crises, when their property 
 and effects, if brought to present 
 sale, would not have discharged all 
 their liabilities in full. We feel 
 safe in declaring that when a cor- 
 poration's assets are insufficient- for 
 the payment of its debts, and it has 
 ceased to do business, or has taken, 
 or is in the act of taking, a step 
 which will practically incapacitate 
 it for conducting the corporate 
 enterprise with reasonable prospect 
 of success, or its embarrassments 
 are such that early suspension and 
 failure must ensue, then such cor- 
 poration must be pronounced in- 
 solvent." 
 
 This "trust fund doctrine" was 
 followed in Goodyear Rubber Co. 
 V. Geo. D. Scott Co., 96 Ala. 439, 11 
 So. 370; Gibson v. Trowbridge, 96 
 Ala. 357, II So. 365; Justice 
 McClellan dissenting in each case. 
 But in O'Brien Jewelry Co. v. Vol- 
 fer, Ala., 17 So. 525, 28 L. R. A. 707, 
 a case decided in 1895, Judge 
 McClellan rendering the opinion 
 of the court, the doctrine that 
 the assets of a corporation, in the 
 hands of the directors, are a trust 
 fund for the corporate creditors, 
 was repudiated, and Corey v. Wads- 
 worth, Goodyear Rubber Co. v. 
 Scott Co., and Gibson v. Trowbridge 
 were overruled in an opinion in 
 which the subject is very exhaus- 
 tively discussed. In the course of 
 the opinion the court said: "This 
 
 whole idea that the property of in- 
 solvent corporations is held by them 
 in trust for creditors and as a trust 
 estate in their hands, to be admin- 
 istered in chancery as such, origin- 
 ated in a dictum of Judge Story 
 in Wood V. Dumners, 3 Mason 308, 
 Fed. Cas. No. 17944. It had no 
 existence at common law, and is 
 unknown to this day in the law of 
 England, but is distinctly the crea- 
 tion of some courts in this country, 
 and known in jurisdictions where it 
 obtains as the "American doctrine," 
 
 "Given the power, 
 
 which cannot be denied, to hold and 
 dispose of property as an individual, 
 and the well settled doctrine in this 
 state and generally, that an insolv- 
 ent individual may transfer all his 
 property in payment of one or more, 
 to the exclusion of all other debts, 
 it follows in a logical sequence, 
 which nothing but the illogical 
 exercise of the sheer power of courts 
 of last resort can break, that an 
 insolvent corporation may in like 
 manner prefer one creditor to the 
 exclusion and defeat of all others. 
 With this undoubted power in a 
 corporation or its officers, it would 
 seem to be most manifest that 
 neither a corporation nor its officers 
 could possibly sustain the relation of 
 trustee to other creditors in respect 
 to corporate assets, which they are 
 under no duty at law or in equity 
 to administer for the benefit of 
 those who are called "cestuis que 
 
 trustent.". . .\ "That the 
 
 relation of debtor and creditor is 
 not of a confidential character, there 
 can, of course, be no doubt. It is 
 absurd to say that the creation of 
 that relation involves aught of acci- 
 dent, mistake or ignorance. That a 
 debtor has property which in equity 
 and good conscience belongs to the 
 creditor because the debt contracted 
 in its sale has not been paid, there 
 
PKEFERENOES. 
 
 195 
 
 effecting a transfer, whether by a mortgage,^ or a deed,^ or 
 
 is no warrant for saying. Equally 
 unwarranted is the idea that in 
 equity all the property of a debtor 
 who has become insolvent belongs 
 to the creditor and is held by the 
 debtor in trust for him. And this 
 idea of ownership in the cestui que 
 trust underlies the whole doctrine 
 of trusts of every description. In all 
 trusts the legal title is in one and the 
 equitable ownership in another. A 
 mere debt against one who has prop- 
 erty, whether solvent or insolvent, 
 is not ownership, nor is a right to 
 charge a fund, or a lien upon it, a 
 beneficial ownership of it. Con- 
 fessedly the property and assets of 
 a solvent corporation do not consti- 
 tute a trust fund for its creditors. 
 Can it be possible that the mere 
 passing of a corporation from a state 
 of solvency to a state of insolvency 
 amounts to a declaration of an 
 express trust for creditors, or to a 
 resulting trust, upon the theory 
 that title to the assets of the 
 concern should have been made 
 directly to creditors? Or is it 
 conceivable that this mutation 
 from the one condition to the 
 other does violence to a confiden- 
 tial relation which never existed, 
 and hence is a constructive trust? 
 Or that this mere change of inher- 
 ent conditions is the vestiture in 
 the corporation, through the ignor- 
 ance or mistake of the creditors, or 
 through mistake or through fraud, 
 of a. greater title, or title to more 
 property, than was contemplated or 
 intended, when before the change, 
 confessedly, the corporation had 
 the absolute and indefeasible title, 
 free from all trusts, to all its 
 property and assets, and when the 
 change itself involves nothing of 
 
 fraud, of abuse of fiduciary rela- 
 tions, of ignorance or mistake or 
 accident? The learned judges who 
 uphold this American doctrine may 
 find something in these conditions 
 of fact upon which to construct a 
 trust, but I confess my utter ina- 
 bility to follow their arguments or 
 see with their eyes." 
 
 See also Hollins v. Iron Co., 150 
 U. S. 371, 381, 386, 14 S. Ct. 127. 
 The court said: "As between itself 
 and its creditors a corporation is 
 simply a debtor, and does not hold 
 its property in trust, or subject to a 
 lien in their favor, in any other 
 sense than does an individual 
 debtor." 
 
 In the foregoing note I have 
 endeavored to give an idea of the 
 phases of this question. The prac- 
 titioner should consult carefully 
 the decisions of his own state. It 
 will be seen, I think, that in those 
 jurisdictions where the "trust fund 
 doctrine" is sustained, the element 
 of public policy has had consider- 
 able weight. 
 
 IKennaird v. Adams, 11 B: Mon. 
 102; Jones V. Naughright, 10 N. J. 
 Bq. 298; Carnall v. Duvall, 22 Ark. 
 136; Wiley V. Lashlee, 8 Humph. 
 717; London «. Martin, 79 Hun 229, 
 61 N. Y. St. Rep. 24, 29 N, Y. Supp. 
 
 396- 
 
 2Waterbury v. Sturtevant, 18 
 Wend. 353; Barr v. Hatch, 3 Ohio, 
 527; Buffum V. Green, 5 N. H. 71, 
 20 Am. Dec. 562; Covanhovan v. 
 Hart, 21 Penn. 495; Kemp v. Walker, 
 16 Ohio, 118; Morse v. Slason, 13 
 Vt. 296; Ivcadman ». Harris, 3 Dev. 
 144; Harrison v. Phillips' Academy, 
 12 Mass. 456. Preference may be 
 given by a warranty deed. Lobstein 
 V. Lehn, 111., 12 N. E. 68. 
 
196 PREFERENCES. 
 
 judgment,^ or tlie transfer of a note,^ or of any other prop- 
 erty. A large debt may be split up into small sums, so as 
 to bring it witMn a magistrate's jurisdiction, and judg- 
 ments may be confessed thereon, and the property of the 
 debtor taken on executions.^ An attachment may be 
 issued, or a mortgage may be executed and placed on 
 record,* without the knowledge of the creditor.^ 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.^ 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,^ will not of itself render the preference fraudu- 
 lent.^ The preference maybe made to take effect at the 
 death of the debtor.^" The fact that the debtor at the 
 time of giving the preference is about to abscond^^ does 
 not render it void. 
 
 § 170. Intent to Defeat an Execution. — A preference may 
 be given and received for the express purpose of defeating 
 an execution,^ for the mere intent to defeat an execution 
 
 IWilder v. Winne, 6 Cow. 284; ^Savings Bank v. Bates, 8 Conn. 
 
 Hill z/. Northrop, 9 How. Pr. 525; 505; Tillou j/. Britton, 9 ISf . J. 120. 
 
 Davis V. diaries, 8 Penn. 82; l/owry 3Floyd v. Goodwin, 8 Yerg. 484; 
 
 V. Coulter, 9 Penn. 349; Siegel v. Newdigate v. I/ee, 9 Dana 17; 
 
 Chidsey, 28 Penn. 279, 70 Am. Dec. L'Avender v. Thomas, 18 Geo. 668; 
 
 124; Greenwalt v., Austin, i Grant, Bank v. Planter's Bank, 22 Geo. 466; 
 
 169; Meeker w. Harris, 19 Cal. 278, Alexander z/. Young, 23 Geo. 616. 
 
 79 Am. Dec. 215; Shedd v. Bank, 32 ^Ensworth v. King, 50 Mo. 477. 
 
 Vt. 709; Beards v. Wheeler, 18 N. SBaird v. Williams, 36 Mass. 381; 
 
 Y. Supr. 539; Young v. Clapp, 147 vide Ryan v. Daly, 6 Cal. 238. 
 
 111. 176, 35 N. E. 187; Columbus ePerry z/. Pettingill, 33 N. H. 433. 
 
 Watch Co. V. Hodenpyl, 135 N. Y. 7pringle v. Sizer, 2 Rich. (N. S.) 
 
 430, 32 N. E. 239; London v. Martin, 59; Gibson v. Walker, 11 Ired. 327. 
 
 79 Hun 229, 61 N. Y. St. Rep. 24, SMagee v. Raiguet, 64 Penn. 110. 
 
 29 N. Y. Supp. 396; Victor v. Levy, SReynolds w. Wilkins, 14 Me. 104. 
 
 72 Hun 263, 55 N. Y. St. Rep. 720, lOMorse v. Slason, 13 Vt. 296; 
 
 25 N. Y. Supp. 644; Pairpont Mfg. Exton v. Scott, 6 Sim. 31. 
 
 Co. V. Phila. Optical Co., 161 Pa. St. HGarr v. Hill, 9 N. J. Eq. 210. 
 
 17, 28 Atl. 1003, (where the judgment ispunk v. Staats, 24 111. 632; Dar- 
 
 debtor was a corporation); Wyman vill v. T^rry, 6 H. & N. 807; Hall v. 
 
 V. Wilmarth, S. D., 46 N. W. 190. Arnold, 15 Barb. 599; Hartshorne v. 
 
 Eames, 31 Me. 93; Gassett v. Wilson, 
 
PREFERENCES. 197 
 
 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 sanctions. This is not delaying or hindering within 
 the meaning of the statute. It does not deprive other 
 creditors of any legal right, for they have no right to a 
 priority.- One creditor of a failing debtor is not, under 
 the statute, bound to take care of the others. In such 
 case, if the assets are not suflScient 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 
 
 3 Fla. 235; Wheaton v. Neville, 19 the principle applies equally to a 
 
 Cal. 41 ; Kuykendall v. McDonald, transfer where the consideration is 
 
 15 Mo. 416; 57 Am. Dec. 212; Rich v. an antecedent debt. Holbird v. 
 
 Levy,'i6Md. 74; Weller «. Wayland, Anderson, 5 T. R. 235; Janes v. 
 
 17 Johns. 102; Waterbury «. Sturte- Whitbread, 11 C. B. 406; Pickstock 
 
 vant, 18 Wend. 353; Wilder v. v. Lyster, 3 Man. and S. 371; Ben- 
 
 Winne, 6 Cow. 284; Barr v. Hatch, ton v. Thornhill, 2 Mars. 427, 430; 
 
 3 Ohio, 527; Hendricks v. Mount, 5 Riches v. Evans, 9 Car. and P. 642; 
 
 J^. J. 738; 8 Am. Dec. 623; Walden Marlow v. Orgill, 8 Jur. (N. S.) 829; 
 
 V. Mnrdock, 23 Cal, 540; Goodwin v. FoUett v. Wesley, 10 Jur. 327; John- 
 
 Hamill, 26 N. J. Eq. 24; Steele v. son v. Osenton, L. R. 4 Ex. 107. 
 
 Moore, 54 Ind. 52; Carpenter z/. The doctrine is the same in equity. 
 
 Cushman, 121 Mass. 265; Frazer v. Alton v. Harrison, L. R. 4 Ch. 622- 
 
 Thatcher, 49 Tex. 26; Shelley v. 626; Ex Parte Games, 12 Ch. D. 
 
 Boothe, 73 Mo. 74, 39 Am. Rep. 314; Hale z/. Saloon Omnibus Co., 4 
 
 481; Nortcliffe v. Warburton, 4 Drew. 492. 
 
 DeG., F. &J. 449. In Wood z/. Dixie, Blenkinsopp v. Blenkinsopp, 12 
 
 7 Q. B. 892, 9 Jur. 796, Beav. 568, i De G. M. and G., 495, 
 
 a debtor executed a bill of sale sometimes cited contra, was a case 
 
 as security for money lent. Colt- in which the debtor attempted to 
 
 man, J., told the jury that if the ob- defeat legal process hy a. voluntary 
 
 ject be to defeat the execution the deed. 
 
 sale is void, and the Court of Q. B. lUhler v. Maulfair, 23 Penn. 481 j 
 
 held the instruction wrong. And Bird v. Sitken, Rice Eq. 73- 
 
198 PREFERENCES. 
 
 will or will not get their debts.^ He does not violate any 
 principle bf 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.2 Fraud, in its legal sense, cannot be predicated 
 of such a transaction.^ Wherever there is a true debt, 
 and a real transfer for an adequate consideration, there is 
 no collusion.* 
 
 § 171. Secret Motives Immaterial. — All that the law re- 
 quires in the case of a preference is good faith.® Where 
 creditors are equally honest, they are equally favored by 
 the law, and their rights are determined according to their 
 respective priorities.^ The secret motives which prompt 
 the ■ preference are immaterial. The law can take no 
 cognizance of feelings and intentions which are not 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.^ 
 The desire to avoid a sacrifice,* or to prevent an expected 
 criminal prosecution,^ or an expectation to receive future 
 employment,%r that the property will be settled upon the 
 
 iCovanhovan v. Hart, 21 Penn. ^Chase v. Walters, 28 Iowa 460; 
 
 495; Auburn Bank v. Fitch, 48 Barb. Auburn Bank v. Fitch, 48 Barb. 344; 
 
 344; Crawford v. Kirksey, 55 Ala. Kennaird v. Adams, 11 B. Mon. 102. 
 
 282, 27 Am. Rep. 704. ^Clemens v. Davis, 7 Penn. 263. 
 
 2Dana v. Stamfords, 10 Cal. 269; 5phettiplace v. Sayles, 4 Mason 
 
 Waterbury ». Sturtevant, 18 Wend. 312; Ford v. Williams, 3 B. Mon. 
 
 353; Thornton v. Davenport, 2 111. 550. 
 
 296; Ford z/. Williams, 3 B. Mon. 550; BLloyd v. Williams, 21 Penn. 
 
 Worland v. Kimberlin, 6 B. Mon. 327. 
 
 608, 44 Am. Dec. 785; Jones v. VBunn «. Ahl, 21 Penn. 387; Haas 
 
 Naughright, 10 N. J. Bq. 298; z;. Whittier, 87 Cal. 613, 25 Pac. 917. 
 
 Young V. Dumas, 39 Ala. 60; Gray SBarr v. Hatch, 3 Ohio, 527; 
 
 V. St. John, 35 111. 222; Banfield v. Wheaton v. Neville, 19 Cal. 41. 
 
 Whipple, 96 Mass. 13; Kennaird v. SMarbury v. Brooks, 7 Wheat. 
 
 Adams, 11 B. Mon. 102; Thornton v. 556; s. c. 11 Wheat. 78. 
 
 Tandy, 39 Tex. 544; vide Ashmead locrawford v. Austin, 34 Md. 49. 
 V. Hean, 13 Penn. 584. 
 
PREFERENCES. 199 
 
 debtor's wife or faniily,i or mere caprice, or favoritism, or 
 the gratification of secret ill-will,^ does not affect the valid- 
 ity of the transfer, for such secret motives are not the sub- 
 jects of legal inquiry. "Where there is merely a preference, 
 even a jury is not at liberty to deduce fraud from that 
 which the law pronounces honest.^ 
 
 § 172. 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.* 
 The distinction is between a transfer made solely by way 
 of preference of one creditor over others, and a similar 
 transfer made with a design to secure some benefit or 
 advantage therefrom to the debtor,^ or to delay creditors 
 in the collection of their debts.® While the law permits 
 an insolvent 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,^ or to use the debt of 
 the preferred creditor as a colorable consideration to 
 screen and protect his property from their claims^ or to 
 
 lYoung z/. Stallings, 5 B. Mon. 124; Thompson v. Purr, 57 Miss. 
 
 307; Cureton v. Doby, 10 Rich. Eq. 478. 
 
 411; 73 Am. Dec. 96. SBanfield z/. Whipple, 96 Mass. 
 
 SSpaulding v. Strang, 37 N. Y. 13; Barr w. Hatch, 3 Ohio, 52;; Bar- 
 
 135; s. c. 38 N. Y. 9; 36 Barb. 310; tels v. Harris, 4 Me. 146; Bullock v. 
 
 32 Barb. 235. Irvine, 4 Munf. 450; Biddings v. 
 
 SYork County Bank v. Carter, 38 Sears, 115 Mass. 505; Bixby v. Car- 
 
 Penn.446; 80 Am. Dec. 494; Gardner skaddon, 58 Iowa, 533; Cordes v. 
 
 Nat'l Bank v. Hagar, 65 Me. 359. Straszer, 8 Mo. Ap. 61. 
 
 The fact that the debtor intended ejohnson z/. Whitwell, 24 Mass. 
 
 to hinder or defraud other creditors 71; Roe z-. Harrison, 14 S. C. 624; 
 
 ■will not avoid a preference unless Solberg v. Peterson, 27 Minn. 451 ; 
 
 the preferred creditor knew of and Livermore v. McNair, 34 N. J. Eq. 
 
 participated in that fraudulent in- 478; Mitchell v. McKibbin, 8 N. B. 
 
 tent. See sections 167, ante, 183, R. 548. 
 
 184, and 185, post. 7Drury v. Cross, 7 Wall. 299; 
 
 ^Welcome v. Balchelder, 23 Me. James v. Railroad Company, 6 Wall. 
 
 85; Jarolawski v. Simon, 3 Brews. 752; Gordon z/. Clapp, 113 Mass. 335; 
 
 37; Cox V. Miller, 54 Tex. 16; Pierce Smith v. Schwed, 9 Fed. Rep. 483. 
 
 V. Rehfuss, 35 Mich. 53; Union STwyne's Case, 3 Co. 80; Moore, 
 
 Nat'l. Bank v. Warner, 19 N. Y. 638; Benton v. Thornhill, 2 Marsh. 
 
 Supr. 306; Phinizy v. Clark, 62 Geo. 427; 7 Taunt. 149; Graham v. Pur- 
 
 623; Blanchard v. McKey, 125 Mass. ber, 78 E. C. L. 410; 14 C. B. 410; 
 
200 
 
 PREFERENCES. 
 
 delay, hinder, and embarrass them in the enforcement of 
 their demands.^ 
 
 § 173. 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 
 of the other debts, are proper subjects for consideration in 
 determining the good faith of the transaction towards 
 other creditors.^ The property must bear a reasonable 
 proportion to the preferred debt.^ 
 
 Devries v. Phillips, 63 N. C. 53; 
 Pulliam V. Newberry, 41 Ala. 168; 
 Hartshorne v. Eames, 13 Me. 93; 
 Passmore v. Eldridge, 12 S. & R. 
 198; Gans V. Renshaw, 2 Penn. 34, 
 44 Am. Dec. 152; Goodhue v. Ber- 
 rien, 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, i Bush. 86; Kirtland v. 
 Snow, 20 Conn. 23; Kuykendall v. 
 McDonald, 15 Mo. 416, 57 Am. Dec. 
 212; Constantine v. Twelves, 29 
 Ala. 607; Mangum v. Finucane, 38 
 Miss. 354; Prout V. Vaughan, 52 Vt. 
 451; David V. Birchard, 53 Wis. 492. 
 
 iStoddard 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. Iv. Reg. 536; Edrington v. 
 Rogers, 15 Tex. 188; Crowninshield 
 V. Kittredge, 48 Mass. 520; Bunn v. 
 Ahl, 29 Penn. 387; Hancock ». 
 Horan, 15 Tex. 507; Reynolds v. 
 Welch, 47 Ala. 200; Henderson v. 
 Henderson, 55 Mo. 534; Smith v. 
 Hardy, 36 Wis. 417; Cater v. Col- 
 lins, 2 Mo. Ap. 225; Shelley v. 
 Boothe, 73 Mo. 74, 39 Am. Rep. 481; 
 Chipman v. Glennon, 98 Ala. 263, 
 13 So. 822; Smith V. Craft, 11 Biss. 
 340; Hargn-dine v. Davis, Tex. Civ. 
 App., 26 S. W. 424. 
 
 2Glenn v. Grover, 3Md. 212; S. C. 
 3 Md. Ch. 29; Adams v. Wheeler, 
 
 27 Mass. 199; Kuykendall v. Mc- 
 Donald, 15 Mo. 416; 57 Am. Dec. 
 212; Edrington v. Rogers, 15 Tex. 
 188; Robinson v. Stewart, 10 N. Y.. 
 189; Rahn v. McElrath, 6 Watts, 151; 
 Hale V. AUnutt, 86 E. C. L. 505; s. c. 
 18 C. B. 505; Jarolawski v. Simon, 
 3 Brews. 37; Laidlaw v. Gilmore, 47 
 How. Pr. 67; Olmstead v. Mattison, 
 45 Mich. 617. 
 
 SRahn 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 Mi,ch. 588. A 
 preference is void if it embraces 
 more than enough property 
 reasonably to cover the debt. 
 Chipman v. Glennon, 98 Ala. . 
 263, 13 So. 822; State, Redmon 
 z/. Durant, 53 Mo. App. 493;Elserz;. 
 Graber, 69 Tex. 222, 6 S. W. 560; 
 Black V. Vaughan, 70 Tex. 47, 7 S. 
 W. 604; Oppenheimer v. Halff, 68 
 Tex. 409, 4 S. W. 562. 
 
 And a transfer of more property 
 than will cover the debt will not be 
 upheld as to the amount actually 
 due. Kellogg v. Clyne, 54 Fed. 
 696. But see contra Campbell 
 V. Patterson, 21 Can. S. C. 645; 
 Young V. Clapp, 147 111. 176, 32 N. 
 E. 187. 
 
 A debtor cannot confess judg- 
 ment for notes containing an allow- 
 ance for attorney fees, as there is 
 
PREFERENCES. 
 
 201 
 
 § 174. Preference Tainted by Secret Trust.— The terms 
 upon wMch the property is transferred must be free from 
 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. ^ 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.^ Creditors also are' 
 not allowed to gain a preference by means of a secret un- 
 dertaking to hold a part of the property for the benefit of the 
 debtor. The law looks with great jealousy upon the man- 
 ner of giving preferences, and denounces all departures 
 from good faith, and requires that the parties shall not 
 
 no consideration for tlie attorney 
 ,fees. Hulse v. Mershon, 125 111. 
 52; 17 N. E. 50; Silleck v. Pollock, 
 69 Miss. 870, 13 So. 248. 
 
 But the inclusion of such notes 
 in a confessed judgment only vi- 
 tiates the judgment pro ianto. 
 Young z/. Clapp, supra. 
 
 A slight and unimportant excess 
 in the value of the property con- 
 veyed will not avoid the transaction. 
 La Belle Wagon Works v. Tidball, 
 6g Tex. 161, 6 S. W. 672. 
 
 A mortgage being in the nature 
 of security, it is the usual course of 
 business that a mortgage 'should 
 cover property greater in value than 
 the secured debt. It is but natural 
 that there should be some such 
 disparity. But if the disparity be 
 gross it will be evidence of bad faith. 
 See Grand Island Bank v. Costello, 
 Neb.,- 63 N. W. 376-382, (overruling 
 
 Bonns V. Carter, 22 Neb. 495, 35 N. 
 W. 394; Morse v. Steinrod, 29 Neb. 
 108, 46 N. W. 922; Brown v. Work, 
 30 Neb. 800, 47 N. W. 192; Thomp- . 
 son V. Drug Co., 33 Neb. 714, 50 N. , 
 W. 948). 
 
 "It is no badge of fraud for a 
 mortgage, which is a mere security 
 to cover more property than will 
 secure the debt due. Any creditor . 
 may pay the mortgage debt and 
 proceed against the property, or he 
 may subject it to the payment of 
 his debt by other modes of proceed- 
 ing." Downs V. Kissam, 10 How. 
 102-108; Davis w. Schwartz, 155 U. 
 S., 631-641, 15 S. Ct. 237. 
 
 iConnelly v. Walker, 45 Penn. 
 44g; Bentz v. Rockey, dg Penn. 71. 
 
 2Johnson v. Whitwell, 24 Mass. 
 71; Ivow V. Graydon, 50 Barb. 414; 
 Dalton V. Currier, 40 N. H. 237. 
 
202 
 
 PREFERENCES. 
 
 secure any covert advantage to the debtor in prejudice of 
 Ms creditors.^ The law, however, does not interdict every 
 species of favor to an unfortunate debtor under the penalty 
 of vacating all securities taken on those ' terms. On the 
 contrary, a creditor may be as indulgent and show as much 
 favor as he pleases as the price of obtaining security.^ 
 Care must only be taken that there is no secret understand- 
 ing constituting a trust in the creditor in derogation or 
 contravention of the ostensible alienation, or the transfer 
 will be deemed a cover, and consequently void.* If there 
 is any such secret understanding, it will be void, although 
 the creditor is not influenced by any fraudulent or im- 
 proper motive, but makes the best arrangement that he 
 can to secure his debt.* 
 
 IWhite V. Graves, 7 J. J. Marsh. 
 523; Garland v. Rives, 4 Rand. 282, 
 15 Am. bee. 756; Pettibone v. 
 Stevens, 15 Conn. 19, 38 Am. Dec. 
 57; Kissam v. Edmondson, l Ired. 
 Eq. 180; Menton v. Adams, 49 Cal. 
 620. But where other creditors lose 
 nothing by an arrangement be- 
 tween the debtor and the preferred 
 creditor, such an arrangement is 
 not fraudulent. Brinson v. Edwards 
 94 Ala. 447, 10 So. 219; Smith v. 
 Dobbins, 87 Ga. 303, 13 S. E. 496; 
 Cleveland Stove Co. v. Wilson, 80 
 la. 697, 45 N. W. 897. 
 
 2 A secret antecedent agreement 
 to prefer a creditor does not neces- 
 sarily render such a preference 
 void when consummated. "I do 
 not doubt that a promise given to 
 secure or to prefer a creditor, made 
 at the time the credit is given, may 
 be fraudulent, but it must be when 
 a. fraud is intended or when the 
 circumstances within the knowl- 
 edge of the grantor are such that 
 he must know that injury to others 
 will probably result. ■ But when, as 
 in this case, the debtor was doing 
 an apparently prosperous business, 
 
 though largely on credit, and 
 advances were made to him without 
 a belief, or any imperative reason 
 for the belief, that he was or was 
 likely to become insolvent, it can- 
 not, in my judgment, be said that 
 a promise to protect if disaster 
 should come,cannotbeperformed." 
 Woods, J., in Smith v. Craft, 17 
 Fed. 705, 708, on rehearing. Judge 
 Gresham having previously held 
 the contrary in 11 Biss. 349, 12 Fed. 
 856. See Forbes v. Howe, 102 Mass. 
 427; Nat. Bank v. Whitmore, 104 
 N. Y. 297, 10 N. E. 524, and cases 
 cited, the court saying: "If he 
 may make a preferential assign- 
 ment without any antecedent prom- 
 ise, why may he not make it after 
 and in pursuance of such promise? 
 How can an act, otherwise legal, 
 be invalidated because made in pur- 
 suance of a valid or invalid agree- 
 ment, honestly made?" See also 
 Darnell v. Lewis, Ky., 22 S. W. 843. 
 
 SJackson v. Brownell, 3 Caines, 
 222; Meeker v. Harris, 19 Cal. 278, 
 79 Am. Dec. 215. 
 
 ^Reynolds v. Welch, 47 Ala. 200; 
 Humphries v. Freeman, 22 Tex. 45. 
 
PREFEKENCES* 203 
 
 § 175. Creditor's Bounty.— The preferred creditor Inay 
 give a portion of his debt, or the property received in pay- 
 ment 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 dverweening ten- 
 dency to detect collusion.^ 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 price 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- 
 fessed purpose of conveying to satisfy or secure the debt 
 to the creditor, and for that reason is mala fide and void.^ 
 
 § 176. 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.^ 
 
 § 177. Burden of Proof.— The burden of proof rests upon 
 
 iCureton v. Doby, lo Rich, Eq. 282, 15 Am. Dec. 756; Marshall v. 
 
 411, 73 Am. Dec. 96; Webb v. Roff, Hutchinson, 5 B. Mon. 298. 
 9 Ohio St. 430; Young v. Dumas, 39 STomlinson v. Matthews, 98 111. 
 
 Ala. 60; Young ■b. Stallings, 5 B. 178; Syracuse Chilled Plow Co. v. 
 
 Mon. 307; Winch i-. James, 68 Penn. Wing, 85 N. Y. 421; Brookville 
 
 297. See section 197 post. Nat. Bank v. Trimble, 76 Ind. 195; 
 
 2Kissam v. Edmondson, i Ired. vide Budd v. Atkinson, 30 N. J. 
 
 Eq. 180; Garland v. Rives, 4 Rand. Eq. 530- 
 
204 THE BONA FIDES OF THE TRANSFER. 
 
 the creditors who impeach the preference/ and the fraud- 
 ulent intent must be clearly shown.^ 
 
 § 178. 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.'* In payment for the excess the 
 creditor may give either money or his note.* 
 
 CHAPTER VIII. 
 
 THE BONA FIDES OE THE TRANSFEE,. 
 
 § 179. Insolvent Debtor may Sell. — The statute does not 
 deprive a man of the power to sell or otherwise dispose 
 of his property, although he may be insolvent,^ and the 
 mere fact that the transfer may tend to delay or hinder 
 his creditors will not alone render it fraudulent. Many 
 sales made in the ordinary course of business may and 
 do defeat creditors who could have levied upon the property 
 
 iKeller v. Taylor, 90 Ala. 289, 7 v. Davis, 50 Ga. 213; Troustine v., 
 
 So. 907; Bray z/. Comer, 82 Ala. 183, I^ask, 4 Baxter, 162; Beurmann v. 
 
 I So. 77; Wood V. Clark, 121 111. Van Buren, 44 Mich. 496; Reehling 
 
 359, 10 West. 117, 12 N. E. 271; z/. Byers, 94 Penn. 316. 
 Johnson v. McGrew, 11 la. 151, 77 *Hobbs v. Davis, 50 Ga. 213. 
 
 Am. Dec. 137; Glenn v. Grover, 3 SChurchill v. Wells, 7 Cold. 364;^ 
 
 Md. 212, 3 Md. Ch. 29. Copis v. Middleton, 2 Madd. 410J 
 
 2Barr v. Hatch, 3 Ohio, 527; Phettiplace z;. Sayles, 4 Mason, 312;, 
 
 Jones V. Naughright, 10 N. J. Eq. Pecot v. Armelin, 21 I<a. An. 667; 
 
 2g8. Hardey v. Green, 12 Beav. 182; 
 
 SYoung V. Stallings, 5 B. Hon. Smith v. Henry, 2 Bailey, 118; s. c. 
 
 307; Ford V. Williams, 3 B. Mon. i Hill, 16; Miller v. Kirby, 74 111. 
 
 550; Little V. Eddy, 14 Mo. 160; 242. 
 Bear's Estate, 60 Penn. 430; Hobbs 
 
THE BONA FIDES OF THE TRANSFER. 205 
 
 if it had been retained for a wMle longer, yet these are 
 valid.^ The power of a debtor to sell implies the corres- 
 ponding 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. 
 
 § 180. 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 person 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 inter- 
 est 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 
 of a bona fide purchaser for a valuable consideration is pro- 
 tected 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 
 trustpd to the personal responsibility of the debtor, but 
 
 lAtwood V. Impson, 20 N. J. Eq. 150- 
 
206 
 
 THE BONA FIDES OF THE TRANSFER. 
 
 has paid the consideration upon the faith of the debtor's 
 actual title to the specific property transferred.^ A man 
 paying a full and valuable consideration in good faith for 
 the property may moreover justly suppose that the pur- 
 chase, so far from diminishing the means of the vendor for 
 paying his debts, will afford him a facility for doing so.^ 
 It is upon these grounds that the rights of a grantee who 
 acts in good faith, and gives a valuable consideration, are 
 protected, although there may have been a fraudulent intent 
 on the part of the debtor.^ 
 
 iSeymour v. Wilson, 19 N. Y. 
 417. 
 
 spierson v. Tom, i Tex. 577. 
 
 SHeroy 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. Riggin, 19 Md. 536; Trox- 
 all z/. Dunnock, 24 Md. i63;Hessmg 
 V. McCloskey, 37 111. 341; Smith v. 
 Henry, 2 Bailey, 118; s. C. 1 Hill, 
 16; Sibley z*. Hood, 3 Mo. 290; Wil- 
 son V. I/Ott, 5 Fla. 305; Swinerton 
 V. Swinerton, i 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; John- 
 son V. Johnson, 44 Mass. 63; Cur- 
 rier V. Taylor, 19 N. H. 189; Sands 
 V. Hildreth, 14 Johns. 493; s. c. 2 
 Johns. Ch. 35; Waterbury v. Sturte- 
 vant, 18 Wend. 353; Hall v. Arnold, 
 15 Barb. 599; Anderson v. Hooks, 9 
 Ala. 704; Davis z/.- 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, i Smith, 242; 
 s. c. I Ind. 363; 50 Am. Dec. 470; 
 Ratcliffe v. Trimble, 12 B. Mon. 32; 
 Sterling v. Ripley, 3 Chand. 166; 
 Splawn V. Martin, 17 Ark. 146; 
 Ewing V. Runkle, 20 111. 448; Frank 
 
 V. Peters, 9 Ind. 344; Dart v. Farm- 
 er's Bank, 27 Barb. 337; Fifield v. 
 Gaston, 12 Iowa, 218; Miller v. 
 Byran, 3 Iowa, 58; Palmer v. Hen- 
 derson, 20 Ind. 297; Sisson v. Roth, 
 30 Conn. 15; Hutchinson z/.Watkins, 
 17 Iowa, 475; Meixsell v. William- 
 son, 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; Las- 
 siter B. Davis, 64 N. C. 498; Rose v. 
 Coble, I 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, i Bond, 345: Reiger v. 
 Davis, 67 N. C. 185; Ruhl v. Phillips, 
 48 N. Y. 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. 176J 
 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. 405J Col- 
 lins V. Cook, 40 Tex. 238; Trieber 
 V. Andrews, 31 Ark. 163; Tompkins 
 Nichols, 53 Ala. 199; First Nat'l. 
 
THE BONA FIDES OP THE TRANSFER. 
 
 207 
 
 § 181. Grantee without Consideration not Protected. — An in- 
 quiry into the good faith of the grantee is only necessary, 
 however, when there is a valuable consideration for the trans- 
 fer.^ The mere acceptance of a transfer, without a valuable 
 consideration, is of itself suflScient evidence of a participation 
 in the debtor's fraudulent intent.^ 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.^ 
 
 § 182. Good Faith as well as a Taluahle 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^ If a transfer is for a valuable 
 
 Bank v. Irons, 28 N. J. Eq. 43; Hatch. 
 V. Jordan, 74 111. 414; Tootle v. Dunn, 
 6 Neb. 93; Johnston v. Field, 60 Inil. 
 377; Kellogg 0. Aherin, 48 Iowa, 
 299; Keith V. Proctor, 8 Baxter, 
 189; Evans v. Nealis, 69 Ind. 148; 
 Tyberandt v. Rancke, 96 111. 71; 
 Norris v. Persons, 49 Wis. loi; 
 Smith V. Schmitz, 10 Neb. 600; 
 Bradley v. Ragsdale, 64 Ala. 558; 
 Florence S. M. Co. v. Zeigler, 58 Ala. 
 221; Morses. Aldrich, 130 Mass. 578; 
 State V. Tubessing, 6 Mo. Ap. 585. 
 
 INewman 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. 
 Chamberlain, 95 Mass. 257; Hicks 
 V. Stone, 13 Minn. 434; Lee v. Figg, 
 37 Cal. 328, 99 Am. Dec. 271; Spauld- 
 ing V. Blythe, 73 Ind. 93; Sherman 
 V. Hogland, 73 Ind. 472; Martin v. 
 Rexroad, 15 W. Va. 512; Pickett v. 
 Pipkin, 64 Ala. 920. 
 
 2Belt V. Raguet, 27 Tex. 471. 
 
 SDudley v. Danforth, 61 N. Y. 
 626; Archer v. O'Brien, 14 N. Y. 
 Supr. 146; Coleman v. Smith, 55 
 Ala. 368; Beurmann ». Van Buren, 
 44 Mich. 496; Thompson v. Furr, 57 
 Miss. 478; Surget v. Boyd, 57 
 Miss. 485; Reehling v. Byers, 94 
 Penn. 316. 
 
 *Twyne's Case, 3 Co. 80; Moore, 
 638; Copis V. Middleton, 2 Madd. 
 410; Harrison v. Kramer, 3 Iowa, 
 543; Glenn v. Randall, 2 Md. Ch. 
 220; Wood V. Chambers, 20 Tex. 
 247, 70 Am. Dec. 382; Slagel v. 
 Hoover, Ind., 36 N. E. 1099; Liddle 
 V. Allen, la., 57 N. W. 603; Davis v. 
 McCarthy, 40 Kans. 18, 19 Pac. 356; 
 Eraser v. Passage, 63 Mich. 551, 5 
 West, 359, 30 N. W. 334; Albergerz/. 
 White, 117 Mo. 347, 23 S. W. 92; 
 Moore v. Williamson, 44 N. J. Eq. 
 496, I Iv. R. A. 336, 15 Atl. 587; 
 Weber v. Rothchild, 15 Ore. 385, 
 15 Pac. 650; Renninger v. Spatz, 
 128 Pa. 524, 18 Atl. 405; Parr v. 
 Saunders, Va., 11 S. E. 979. H Va. 
 L. J. 433- 
 
208 
 
 THE BONA FIDES OF THE TRANSFER. 
 
 consideration, the only question is whether it is bona fide} 
 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.^ The reason is manifest. Fraud 
 may as readily be effected when a full and fair price is 
 paid as when nothing is paid. A person may resolve not 
 to pay his debts, and another knowing this may treat with 
 him and purchase his whole estate at a fair and full price, 
 and thus enable him to defeat the claims of his creditors. 
 Although the purchaser gains no advantage, he enables the 
 debtor to evade the payment of Ms debts, and the effect 
 upon the creditors is precisely the same as if nothing 
 were paid.^ As it is the intent to withdraw the debtor's 
 
 IHale V. Saloon Omnibus Co., 4 
 Drew, 492; s. c. 28 T,. J. Ch. 777; 
 Harman v. Ricliards, 10 Hare, 81; 
 Holmes v. Penney, 3 K. & J. 90. 
 
 ^Cadogan v. Kennett, 2 Cowp. 
 432; Worseleyw. DeMattos, i Burr. 
 467; Devon v. Watts, Doug. 86; 
 Wickham v. Miller, 12 Johns. 320; 
 Stein V. Hermann, 23 Wis. 132; Pul- 
 liam V. Newberry, 41 Ala. 168; 
 Chappel V. Clapp, 29 Iowa, 161; 
 Harrison v. Jaquess, 29 Ind. 208; 
 Sayre v. Fredericks, 16 N. J. Eq. 
 205; Carny v. Palmer, 2 Cold. 35; 
 Weisiger v. Chisholm, 22 Tex. 670; 
 s. c. 28 Tex. 780; Castro v. lilies, 22 
 Tex. 479, 73 Am. Dec. 277; Gardi- 
 nier v. Otis, 13 Wis. 460; Smith v. 
 Culbertson, 9 Rich. 106; Barrow v. 
 Bailey, 5 Pla. 9; Clark v. Wentworth, 
 6 Me. 259; Edrington v. Rogers, 15 
 Tex. 188; Robinson v. Holt, 39 N. 
 H. 557, 75 Am. Dec. 233; Duelly v. 
 Van Houghton, 4 N. Y. Leg. Obs. 
 loi; Johnston v. Dick, 27 Miss. 277; 
 Johnson v. Sullivan, 23 Mo. 474; 
 Rogers V. Evans, 3 Ind. 574; Borland 
 z/. 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 Tex. 419; 
 Lowry v. Pinson, 2 Bailey, 324; 23 
 Am. Dec. 140; 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. i; Cadbury v. Nolen,5Penn. 
 320; Ayres v. Moore, 2 Stew. 336; 
 Zerbe v. Miller, 16 Penn. 488; Alex- 
 ander V. Todd, I Bond, 175; Parrish 
 V. Danford, i Bond, 345; Starin v. 
 Kelly, 36 N. Y. Sup. 366; Fishel v. 
 Ireland, 52 Geo. 632; Christian v. 
 Greenwood, 23 Ark. 258, 79 Am. 
 Dec. 104; Ferris v. Irons, 83 Penn. 
 179; Brinks v. Heise, 84 Penn. 246; 
 Randall v. Vroom, 30 N. J. Eq. 353; 
 Gebhart v. Merfield, 51 Md. 322; 
 White V. Perry, 14 W. Va. 66; 
 Savage v. Hazard, 17 Neb. 323; 
 Smith V. Muirhead, 34 N. J. Eq. 41 
 Singer v. Jacobs, 11 Fed. Rep. 559. 
 8Rea V. Alexander, 5 Ired. 644; 
 Dowry v. Pinson. 2 Bailey, 324; 23 
 Am. Dec. 140; Brown v. Foree, 7 
 B. Mon. 357, 46 Am. Dec. 519; Kaine 
 V. Weigley, 22 Penn. 179; Clements 
 V. Moore, 6 Wall, 299. "In most 
 cases of fraudulent sales we find 
 evidence of the formal payment of 
 
THE BONA FIDES OF THE TRANSFER. 209 
 
 * 
 
 property from the reach of Ms 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.^ 
 
 § 183. Notice to Grantee. — Notice makes a man a mala 
 fide purchaser. It is per se evidence of mala fides.^ 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 knowl- 
 edge which makes him a participator in the fraud.* 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."* Mere knowledge of 
 the debtor's insolvency,^ or of a judgment,^ or of a threat- 
 ened attachment,^ is not sufficient, unless the object of the 
 debtor is to delay, hinder, or defraud his creditors, and 
 this purpose is known to the grantee. Up to the day of 
 the delivery of the writ to the sheriff the debtor may 
 
 a consideration, and often the pay- 4Jones v. Boulter, i Cox, 288. 
 
 ment is made with considerable SAtwood v. Impson, 20 N. J. Eq. 
 
 publicity and ostentation. Of course 150; Hughes v. Monty, 24 Iowa 
 
 the payment of a consideration by 499; Bridge v. Loeschigk, 42 N. Y. 
 
 the purchaser is a fact to be con- 426; s. c. 42 Barb. 171; Sisson v. 
 
 sidered in determining the question Eoath, 30 Conn. 15; Merchants' 
 
 of fraud, but it is by no means a Bank z/. Newton, 22 N. J. Eq. 58; 
 
 controlling one. If it were, but Durkee v. Chambers, 57 Mo. 575;' 
 
 few fraudulent sales could be sue- Erdall v. Atwood, 79 Wis. i, 47 N. 
 
 cessfully impeached; for they would W. 1124; Van Raaltew. Harrington, 
 
 be so made that the purchaser could loi Mo. 602, 11 I,. R A. 424, 14 S. 
 
 easily prove that he paid for the W. 710. Contra; Wallis v., Adoue, 
 
 property." Frisk v. Reigelman, 75 76 Tex. 118, 13 S. W. 63; Ullman v. 
 
 Wis. 499, 17 Am. St. Rep. 198, 43 N. Crenshaw, 16 S. W. 1012 (Tex). 
 W. 1117, 44 N. W. 766. BBeals v. Guernsey, 8 Johns. 446, 
 
 Ipord V. Williams, 3 B. Mon. 550. 5 Am. Dec. 348; Waterbury v. Stur- 
 
 2Humphriesf. Freeman,. 22 Tex. tevant, 18 Wend. 353; Bunyard z/. 
 
 45- 
 
 Seabrook, i F. & F. 321. 
 7Lyon V. Rood, 12 Vt. ; 
 V. Hall, 44 Mich. 493; 1 
 Supr. 554. heimer v. Hemingway, 35 Penn. 432. 
 
 3Hathawayz/. Brown, 18 Minn. 7Lyon f. Rood, 12 Vt. 233; Fisher 
 
 414; Roeber v. Bowe, 33 N. Y. v. Hall, 44 Mich. 493; vide Rein- 
 
210 
 
 THE BONA FIDES OF THE TRANSFER. 
 
 transfer his personal property, provided it is not a mere 
 trick to evade an execution. But notice of a fraudulent 
 intent on the part of the debtor will vitiate the transf er.i 
 
 § 184. 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,^ or to lead a person of ordinary 
 
 IThe grantee for value must have 
 notice of the fraudulent intent in 
 order to vitiate the transfer, but 
 where he has such notice, it is in- 
 valid. Wilhoyte i). Udell, 93 Ala. 
 302; 9 So. 550; Colbert ». Sutton, 5 
 Del. Ch. 294; Gamble v. Harris, 5 
 Del. Ch. 512; Matthews v. Rein- 
 hardt, 149 111. 635, 37 N. E. 85; Mc- 
 Fadden v. Ross, 126 Ind. 341, 26 N. 
 E. 78; Fisher v. Hall, 44 Mich. 493,. 
 7 N. W. 72; Garesche v. McDonald, 
 
 103 Mo. I, IS S. W. 379; Cheek v. 
 Waldron, 39 Mo. App. 21; Meyberg 
 V. Jacobs, 40 Mo. App. 128; Sellers 
 V. Bailey, 29 Mo. App. 174; Levi v. 
 Welsh, 45 N. J. Eq. 867, 19 Atl. 620; 
 Grossman v. Walters, 58 Hun 603, 
 33 N. Y. St. Rep. 921, II N. Y. Supp. 
 471; Helms V. Green, 105 N. C. 251, 
 II S. E. 470; Woodruff v. Bowles, 
 
 104 N. C. 197, 10 S. E. 482; Goodwin 
 ». Snyder, 75 Wis. 450, 44 N. W. 
 746; Hudson V. Jordan, 108 N. C. 
 10, 12 S. E. 1029; Herman v. Mc- 
 Kenney, 47 Fed. 758; Jones v. 
 Boulter, i Cox 288, 295; Bulmer v. 
 Hunter, L. R. 8 Eq. 46; Kevan v. 
 Crawford, 6 Ch. D. 29; /n ^e Johnson, 
 20 Ch. D. 389, 51 L. J. (N. S.) Ch. 
 503; French v. French, 6 De G. M. 
 and G. 95, loi, 102. But in Missouri 
 it seems that grantee's actual par- 
 ticipation in the fraud is necessary 
 to avoid the conveyance. Deering 
 V. Collins, 38 Mo. App. 73; Morgan 
 V. Wood, 38 Mo. App. 255. On this 
 
 subject of notice see a valuable 
 
 article in 32 C. L. J. 145. 
 
 SMills V. Howeth, 19 Tex. 257, 
 
 70 Am. Dec. 331; 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. c. 
 
 I Hill, 16; Avery j/. Johann, 27 Wis. 
 
 246; Hopkins v. Langton, 30 Wis. 
 
 379; Hathaway 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; Simnis 
 V. Morse, 2 Fed. Rep. 325; Stix v. 
 Keith, 85 Ala. 465, 5 So. 184; Hoyt v. 
 Turner, 84 Ala. 523, 4 So. 658; Catch- 
 ings V. Harcrow, 49 Ark. 20, 3 S. W. 
 884; Knower v. Cadden Clothing Co., 
 57 Conn. 202, 17 Atl. 580; Heaton v. 
 Prather, 84 111. 330; Redhead v. 
 Pratt, 72 la. 99, 33 N. W. 382; GoUo- 
 ber V. Martin, 33 Kans. 252, 6 Pac. 
 267; Biddinger v. Wiland, 67 Md. 
 359, 10 Atl. 202; Shaw V. Spencer, 
 100 Mass. 390; Kitch v. St. h- K. 
 C. and N. Ry. Co., 69 Mo. 224; 
 Holcombe v. Ehrmantraut, 46 
 Minn. 397, 49 N. W. 191; McVeigh 
 V. Baxter, 82 Mo. 518; Frederick v. 
 AUgaier, 88 Mo. 598; Dougherty v. 
 Cooper, 77 Mo. 528; Moore v. 
 Williamson, 44 N. J. Eq. 496, i L. 
 R. A. 336, 15 Atl. 587; DeWitt v. 
 Van Sickle, 29 N. J. Eq. 209; Beels 
 
THE BONA FIDES OF THE TRANSFER. 211 
 
 perception to infer fraud,^ or tlie means of knowing by the 
 use of ordinary diligence,^ 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 loquitorfi If he has notice of facts suffi- 
 cient to put him on the inquiry, he can not be deemed a 
 bona fide purchaser.* But in order to aflfect him with 
 constructive notice it is essential that he shall have a knowl- 
 edge of facts and circumstances naturally and justly cal- 
 culated 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 Ms 
 part not to do so before consummating the purchase.' If 
 he has notice of such facts and circumstances, he is con- 
 sidered either to know the fraudulent intent, or purposely 
 to 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 participa- 
 
 V. Flynn, 28 Neb. 575, 44 N. W. 732; Hunt, 65 Wis, 71, 26 N. W. 442; 
 
 Bollman v. Lucas, 22 Neb. 796, 36 denying the New York doctrine. 
 
 N. W. 465; Edwards v. Reid, 39 ijohnson v. Brandis, i Smith, 
 
 Neb. 645, 58 N. W. 202; Blum v, 263; Wright v. Brandis., 1 Ind. 336; 
 
 Simpson, 71 Tex. 628, 9 S. W. 662; De Witt v. Van Sickle, 29 N. J. Eq. 
 
 Hickman v. Trout, 83 Va. 478, 3 S. 209. 
 
 E. 131; Batchelder v. White, 80 Va. 2Humphries v. Freeman, 22 Tex. 
 
 iD03; Rindskopf v. Myers, 87 Wis. 45; Farmers' Bank v. Douglas, 19 
 
 80, 57 N. W. 967; Bartles v. Gibson, Miss. 469; Foster v. Grigsby, i Bush, 
 
 17 Fed. 597; Singer v. Jacobs, 11 86; Garahay v. Eayley, 25 Tex. 
 
 Fed. 361. (Supp.) 294. Contra, Seavy v. 
 
 In New York the recent cases Dearborn, 19 N. H. 351; Brown v. 
 
 hold that actual notice is necessary. Force, 7 B. Mon. 357, 46 Am. Dec. 
 
 Parker «. Connor, 93 N. Y. 118, 45 519; Sterling v. Ripley, 3 Chand. 
 
 Am. Rep. 178; Stearns v. Gage, 166. 
 
 79 N. Y. 102; Dorr v. Beck, 76 Hun 3Smead v. Williamson, 16 B. 
 
 540, 58 N. Y. St. Rep. 261, 28 N. Y. Mon. 492: Holt v. Creamer, 34 N. J. 
 
 Supp. 206. So in Missouri. State j/. Eq. 181. 
 
 Mason, 112 Mo. 374, 20 S. W. 629. ^Goodenough v. Spencer, 2 N. 
 
 So in Oregon, but actual notice Y. Supr. 509; De Witt z/. Van Sickle, 
 
 may \>% inferred from facts. 29 N. J. Eq. 209; Singer v. Jacobs, 
 
 Coolidge V. Heneky, 11 Ore. 327, 11 Fed. Rep. 559. 
 
 8 Pac. 281; Lyons z:. Leahy, 15 Ore. BHopkins v. Langton, 30 Wis. 
 
 8, 13 Pac. 643. But see Hooser v. 379. 
 
212 
 
 THE BONA FIDES OF THE TKANSFER. 
 
 tion in the fraud. On this point it is material to ascertain 
 whether he has notice that there are any creditors or not, 
 for if he has not, he can not have notice of a fraudulent in- 
 tent.-' If he has notice that there are creditors, this in con- 
 nection with other facts may be sufficient to affect him with 
 notice of a fraudulent intent.^ If the grantor and 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.^ The notice of the fraudulent intent in order 
 to affect the grantee must exist prior to the completion of 
 the sale.^ Notice before the payment of the purchase 
 money is sufficient.^ If a note is given for the purchase 
 money which is not negotiable, notice before the payment 
 thereof is sufficient.^ If the intent is known it is not 
 material that the grantee is not apprised of the full extent 
 of the debtor's fraudulent designs.^ Illud certe sufflcit et 
 
 lErdhouse v. Hickenlooper, 2 of suggestion, emanating as it will 
 
 from contiguous facts and sur- 
 rounding circumstances, pregnant 
 with inference and provocative of 
 inquiry, is as potent to impart 
 notice, as a presidential proclama- 
 tion or an army with banners." 
 Conn. Mut. I,ife In. Co. v. Smith, 
 117 Mo. 261, 22 S. W. 623, 38 Am. 
 St. Rep. 656; Roan «. Winne, 93 
 Mo. 503, 4 S. W. 736; I,eavitt v. La 
 Force, 71 Mo. 353; Major v. Buck- 
 ley, 51 Mo. 227. 
 
 And the burden of proof is on 
 attacking creditors to show that 
 vendee had notice. Van Raalte v. 
 Harrington, 101 Mo. 602, 11 L. R. 
 A. 424, 14 S. W. 710. 
 
 Knowledge that a merchant sold 
 goods at prices lower than other 
 merchants, and that he sold some 
 articles below cost, does not, of 
 itself, constitute constructive notice 
 of fraudulent intent. Hinds v. 
 Keith, 57 Fed. 10, 6 C. C. A. 231, 13 
 U. S. App. 222. 
 
 Mere knowledge that grantor's 
 debts are greater than his assets is 
 not suflScient. Gamble v. Harris, 
 5 Del. Ch. 512. 
 
 Bond, 392; Hunt». Hoover, 34 Iowa, 
 
 77- 
 
 SPeirce v. Merritt, 70 Mo. 275. 
 
 =^Alexander v. Todd, i Bond, 175; 
 Thames v, Rembert, 63 Ala. 561; 
 Dunlap V. Haynes, 4 Heisk. 476;. 
 Castro V. lilies, 22 Tex. 479, 73 Am. 
 Dec. 277; Smith v. Schwed, 9 Fed. 
 Rep. 483; Burtus 0. Tisdall, 4 Barb. 
 
 571- 
 
 IGottberg v. O'Connor, 44 N. Y. 
 Sup. 554; Grimes v. Hill, 15 Colo. 
 359, 25 Pac. 698; StrofE v. SwafEord, 
 81 la. 695, 47 N. W. 1023. 
 
 SParkinson 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; Arnold v. Hartwig, 73 Mo., 
 485; Burnham v. Dillon, 100 Mich. 
 352, 59 N. W. 196. See Parker v. 
 Crittenden, 37 Conn. 148. 
 
 BMatson v. Melchor, 42 Mich. 
 477; Starin v. Kelly, 36 N. Y. Sup. 
 366; Arnold I). Hartwig, 73 Mo. 485. 
 
 7Ruffing V. Tilton, 12 Ind. 259. 
 "Courts of equity, since their 
 earliest foundation, have always 
 recognized that the still small voice 
 
THE BONA FIDES OF THE TRANSFER. 213 
 
 si unum scit creditorem fraudari, cweteros ignoravit, fore 
 locum actioni} But if lie has no sucli notice, it is not 
 necessary that he shall inquire into the motives of the 
 grantor in making the sale.^ 
 
 § 185. 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.* If the grantee has 
 notice at the time that the debtor is transferring his prop- 
 erty to delay, hinder, or defraud his creditors, it will 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 pur- 
 chases 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.* It has, however, 
 been held that if the grantee has a connection with the 
 property, and has reasons and motives for making the pur- 
 chase 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 contem- 
 plated 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.^ 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 excep- 
 tion. 
 
 iDig. lib. 42, tit. 9. 22 Tex. 45; King v. Russell, 40 Tex. 
 
 speirce v. Merritt, 70 Mo. 275. 124. 
 
 3Bobb V. Woodward, 50 Mo. 95; *Edgell v. Lowell, 4 Vt, 405; 
 
 Smith V. Henry, i Bailey, 118; s. c. Puller v. Sears, 5 Vt. 527. 
 I Hill, 16; Humphries v. Freeman, BRoot v. Reynolds, 32 Vt.'i39. 
 
214 THE BONA FIDES OF THE TRANSFER. 
 
 § 186. 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 
 out.^ The grantee is also bound by the acts of his agent 
 which he adopts and confirms,^ and if .they are fraudulent, 
 his own innocence will not suffice to protect the transfer. 
 
 § 187. 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.^ 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.* 
 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.^ Although a transfer is made with the 
 
 iStovall V. Farmers' Bank, i6 Kleeck ». Miller, ig N. B. R. 484. 
 
 Miss. 305, 47 Am. Dec. 85. 4Ford v. Williams, 3 B. Mon. 550; 
 
 2White V. Graves, 7 J. J. Marsh. Gregory v. Harrington, 33 Vt. 241; 
 
 523; Wiley V. Knight, 27 Ala. 336; Brown v. Force, 7 B. Mon, 357, 46 
 
 Pope V. Pope, 40 Miss. 516; Bobb v. Am. Dec. 519; Ocoee Bank v. 
 
 Woodward, 50 Mo. 95; Clark z/. Nelson, i Cold. 186; Ruhl®. Phillips, 
 
 Fuller, 39 Conn. 238; Lund v. Equi- 48 N. Y. 125, 8 Am. Rep. 522; 
 
 table Life A. Society, 31 N. J. Eq. Norteliffe v. Warburton, 4 De G. F. 
 
 355; Radford v. Folsom, 3 Fed. &J. 449; vide Cook v. White, 20 
 
 Rep. 199. Cal. 598. 
 
 SWood ». Shaw, 29 111. 444; Lowry ^Gregory ®. Harrington, 33 Vt. 
 
 z/. Howard, 35 Ind. 170; Eskridge 251; Bedell z/. Chase, 34 N. Y. 386; 
 
 V. Abrahams, 61 Ala. 134; Van Avery v. Eastes, 18 Kans. 505. 
 
THE BONA FIDES OF THE TRANSFER. 215 
 
 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- 
 ing just debts is not fraudulent and void merely because it 
 may have also 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.^ 
 
 § 188. 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.® 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.^ 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 
 to defeat some of his creditors, yet as there may be, and 
 generally are, other and in different cases varying facts 
 
 iBrown z/. Smith, 7 B. Mon. 361; SKendall z/. Hughes, 7 B. Mon. 
 
 Wood V. Shaw, 29 111. 444. 368; Browu v. Foree, 7 B. Mon. 357; 
 
 SBrown v. Foree, 7 B. Mon. 357; 46 Am. Dec. 519. 
 46 Am. Dec. 519. 
 
216 THE BONA FIDES OF THE TRANSFER. 
 
 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 fraudu- 
 lent 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.^ 
 
 § 189. Yalidity 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.^ Where a part only is so 
 appropriated a diflScult point is presented,^ 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 solne 
 of his creditors, and made the purchase without sufiBciently 
 guarding against a misapplication of the price.. It would 
 be too great a restriction upon the common business and 
 traffic of men if every purchase from a debtor were to be 
 conclusively invalidated because the 'proceeds are subse- 
 
 iBrown v. Foree, 7 B. Mon. 357; York County Bank v. Carter, 38 
 
 46 Am. Dec. 519; Brown v. Smith, Penn. 446, 80 Am; Dec. 494; Farger-« 
 
 7 B. Mon. 361. See section 170 ante. son 0. Hall, 99 Ala. 209; 13 So. 312; 
 
 2Kendall v. Hughes, 7 B. Mon. vide Ashmead v. Hean, 13 Penn. 
 
 368; Brown v. Poree, 7 B. Mon. 357, 584; Lowry v. Pinson, 2 Bailey 324, 
 
 46 Am. Dec. 519; Johnson v. 23 Am. Dec. 140. 
 McGrew, 11 Iowa 151, 77 Am. Dec. 3pord v. Williams, 3 B. Mon. 550. 
 
 137; Uhler V. Maulfair, 23 Penn. 481; 
 
THE BONA FIDES OF THE TRANSFER. 217 
 
 quently misapplied.'^ 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.^ If the circum- 
 stances 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 so to apply it.^ A deed may be 
 fraudulent, even though it provides upon its face for the , 
 payment of all the debts due by the grantor,* or the grantee 
 applies the purchase money to pay creditors.^ 
 
 § 190. 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,^ for the presumption is that it is fair and honest 
 until the contrary is shown by evidence,^ sufficient for that 
 purpose. The participation in the fraud may be shown 
 by circumstances, without the production of direct evi- 
 dence,^ but the proof must be clear and convincing.^ The 
 amount and character of the consideration paid are mater- 
 ial 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,^" and, on the other hand, 
 the property may sell below what might have been obtained 
 
 iBrown v. Foree, 7 B. Mon. 357, 226, 6 S. W. 560; Ward v. Wofford, 
 
 46 Am. Dec. 519; Brown v. Smith, 7 Tex. Civ. App., 26 S. W. 312. But 
 
 B. Mon. 361; vide Clements v. see Priest z/. Brown, 100 Cal. 626, 35 
 
 Moore, 6 Wall. 299. Pac. 323. 
 
 ^Stanton v. Green, 34 Miss. 576; ^Drum v. Painter, 27 Penn. 148. 
 
 Bastein w. Dougherty, 3 Phila. 30; sparmers' Bank v. Douglass, 19 
 
 Alexander z/. Todd, I Bond , 175. Miss. 469. 
 
 SAvery v. Johann, 27 Wis. 246; BHarmanw. Richards, 10 Hare,8i. 
 
 Green ». Tantum, 19 N. J. Eq. 105; 7Sibley 0. Hood, 3 Mo. 290; Wil- 
 
 s. c. 21 N, J. Eq. 364. If the pur- son v. I/Ott, 5 Pla. 305; Glenn ». 
 
 chaser knows or has reason to know Grqver, 3 Md. 2i2;'s. c. 3 Md. Ch. 29. 
 
 that the debtor is insolvent it is his SAnderson v. Tydings, 3 Md. Ch. 
 
 duty to see that the purchase 167. 
 
 money is applied in payment of his ^Terrell ». Green, 11 Ala. 207. 
 
 debts; and if he does not do so the lOMichael v. Gay, i P. & P. 409; 
 
 sale is void although he believed Monell v. Scherrick, 54 111. 269; 
 
 that the proceeds would be so Galbraith v. Cook, 30 Ark. 417; 
 
 applied. Elser v. Graber, 69 Tex. Smart v. Harring, 52 How. Pr. 505. 
 
218 THE BONA FIDES OP THE TRANSFER. 
 
 by a careful sale.^ An inadequate consideration, however, 
 is a badge of fraud, and is not sufficient to support a trans- 
 fer whose good faith is otherwise impeacbed.^ If the trans- 
 fer is in other respects fair and legal, time may be allowed 
 for the payment of the purchase money ,^ but in such case 
 it is the duty of the vendee to show that it was afterwards 
 paid, and that the stipulation for credit was made in good 
 faith.^ 
 
 § 191. Conveyance to Use of Grantor. — It is enacted by 3 
 H. VII, c. 4, 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 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.^ 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 
 
 IHale V. Saloon Omnibus Co., 4 Jur. (N. S.) 531; s. c. 9 W. R. 641; 4 
 
 Drew, 492; s. c. 28 I,. J. Ch. 777; De G. & J. 600; 4 Drew, 628; 4 X,. 
 
 Stovall V. Farmers' Bank, 16 Miss. T. (N. S.) 750; Copis v. Middleton, 
 
 305, 47 Am. Dec. 85. 2 Madd. 410; Wright v. Stannard, 2 
 
 2Kaine v. Weigley, 22 Penn. 179; Brock. 311; Worthy v. Caddell, 76 
 
 Trimble z/. Ratcliff, 9 B. Mon. 511; N.C. 82; Stirling z/. Wagner, Wyo., 
 
 s. c. 12 B. Men. 32; Robinson v. 31 Pac. 1032. In order to raise the 
 
 Robards, 15 Mo. 459; I/eez/. Hunter, presumption of fraud the inade- 
 
 I Paige, 519; Barrow v. Bailey, 5 quacy of consideration must be so 
 
 Fla. 9; Arnold v. Bell, i Hayw. 396; great as to shock the moral sense. 
 
 Seaman v. White, 8 Ala. 656; State Bierne v. Ray, 37 W. Va. 171, 16 S. 
 
 ■V. Evans, 38 Mo. 150; Durkee v. E. 804. And a small consideration 
 
 Mahoney, I Aik. 116, Kuykendall is sufficient to support the assign- 
 
 V. McDonald, 15 Mo. 416, 57 Am. ment of a lease of wild and unim- 
 
 Dec. 212; Bryant v. Kelton, 1 Tex. proved laud as against creditors. 
 
 415; Bozman v. Draughan, 3 Stew. Klosteman v. Vader, 6 Wash. 99, 
 
 243; vide Union Bank v. Toomer, 2 32 Pac. 1055. See sections 56, 57, 
 
 Hill Ch, 27; Nunn v. Wilsmore, 8 58, 173, ante. 
 
 T. R. 521; Grogan v. Cooke, 2 Ball. SQ'Neil v. Orr, 5 111. 1; Starin v. 
 
 & B. 233; 'Middlecome v. Marlow, 2 Kelly, 36 N. Y. Sup. 366; Alexander 
 
 Atk. 519; Penhall v. Elwin, i Sm. v. Todd, i Bond, 175. 
 
 & Gif . 258; Blount V. Doughty, 3 4Kaine v. Weigley, 22 Penn. 179. 
 
 Atk. 481; Thompson v. Webster, 7 BSandlin v. Robbins, 62 Ala. 477. 
 
THE BONA FIDES OF THE TRANSFER. 219 
 
 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 elade the claims of 
 others. Hence all conveyances to the use of the grantor 
 are fraudulent and null against creditors and others having 
 just claims upon the grantor or upon the property 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.-^ 
 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 con- 
 trol are, by a declaration of trust in or out of the instru- 
 ment, left in him who makes the transfer. It is founded 
 upon the self-evident principle that a man's property 
 should pay his debts, although he has vested a nominal 
 title in some other person. For that purpose the statute 
 declares the title to be in the debtor, and no transfer which 
 is merely nominal can stand in the way.^ It has no refer- 
 
 iCurtis V. Leavitt, 15 N. Y. 9; s. A stipulation in a mortgage per- 
 
 c. 17 Barb. 309; Sandlin v. Robbins, mitting tte mortgagor to retain 
 
 62 Ala. 477. crops for at least ten years avoids 
 
 ^Conveyance to grantor's use for tie mortgage as to creditors. Mer- 
 
 life -with power of appointment is chants and Mecbanics' Sav. Bank 
 
 void as to creditors. In re Gather- v. Lovejoy, 84 Wis. 601, 55 N. W. 
 
 wood's Estate, 29 W. N. C. 344; 108. 
 Ghormley v. Smith, 139 Pa. St. 584, 
 21 Atl. 135. 
 
220 THE BONA FIDES OF THE TRANSFER. 
 
 ence to intention, whether fraudulent or honest. There 
 may be, in fact, no creditors until long after the transac- 
 tion, 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.^ 
 
 § 192. Resulting Trusts. — The statute, however, has no ap,- 
 plication to cases of real and actual alienation upon a valu- 
 able 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. 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, 
 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. If the only object of the convey- 
 ance or assignment is to secure the payment of a loan 
 of money, or of an existing debt, and the reservation of 
 the residuary beneficial interest in the property is a neces- 
 sary 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 re- 
 mains in or results, to the grantor, and an express reserva- 
 tion of such residuary interest being nothing more than 
 what results to the party by operation of law, will not 
 vitiate the assignment. The expression of a trust, there- 
 fore, to restore the thing, mortgaged or pledged to the 
 
 lOurtis V. Leavitt, 15 N. Y. 9; s. c. 17 Barb. 309; Sturdivant v. Davis, 9 
 Ired. 365. 
 
THE BONA FIDES OF THE TRANSFER. 
 
 221 
 
 mortgagor or pledgor, or to return the surplus after the 
 payment of the debt, is not obnoxious to the statute, unless 
 it also appears that the trust will operate to the prejudice 
 and injury of creditors.^ As the grantor may expressly 
 provide 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.^ 
 
 § 193. What Benefits may be Reserved.— There are open 
 trusts which may be reserved upon the face of the deed,* 
 as, for instance, a life interest,* or a purchase in the joint 
 
 ICurtis v. Iveavitt, 15 N. Y. 9; s. c. 
 17 Barb. 309; Ravisies v. Alston, 5 
 Ala. 297; Eaton v. Perry, 29 Mo. 96; 
 Leavitt v. Blatchford, 17 N. Y. 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 
 Run Co., 25 Penn. 56; Johnson v. 
 Cunningham, i Ala. 249; Pope v. 
 Wilson, 7 Ala. 690; Malone v. 
 Hamilton, Minor, 286, 12 Am. Dec. 
 49; Howell V. Bell, 29 Mo. 135; 
 Brinley v. Spring, 7 Me. 241; Rahn 
 V. McSlrath, 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. Robbins, 36 Vt. 
 422; Godchaux v. Mulford, 26 Cal. 
 316, 85 Am. Dec. 178; Bartels v. 
 Harris, 4 Me. 146; Hindman v. Dill, 
 II Ala. 689; Leitch v. Hollister, 4 
 N. Y. 211; Van Buskirk v. Warren, 
 39 N. Y. 119; s. c. 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 Wil- 
 son V. Cheshire, i McCord Ch. 233; 
 
 Hays V. Hostetter, 125 Ind. 60, 25 
 N. E. 134; Muchmore v. Budd, 53 
 N. J. Law 369; 22 Atl. 518; Puckett 
 V. Richardson Drug Co., i Tex. Civ. 
 App. 634; 20 S. W. II 27; Puchhei- 
 mer v. Baum, 43 Fed. 719. 
 
 But where a bill of sale is made 
 with a secret agreement for the re- 
 turn of the surplus, the transaction 
 is fraudulent. Molaska Mfg. Co. v. 
 Steele, 36 Mo. App. 496. 
 
 2Green v. Tanner, 49 Mass. 411. 
 
 3Iy0w V. Carter, 21 N. H. 433. 
 Where an insolvent trustee gave a 
 trust deed on certain lands to secure 
 the repayment of money taken by 
 him from the trust estate, he may 
 reserve the use of the lands until 
 the time when he is to distribute 
 the trust estate among the cestuis 
 que trusient. Wolfe v. Jaffray, 88 
 la. 358, 55 N. W. 91. 
 
 A power of attorney executed at 
 the same time as a bill of sale, 
 authorizing vendor to sell as ven- 
 dee's agent and making provision 
 for the expenses of the sale, does 
 not create such a reservation of a 
 benefit as will avoid the bill of sale. 
 Bluthenthal v. Magnus, 97 Ala. 530, 
 13 So. 7. 
 
 *I/Ott V. De Graffenreid, 10 Rich. 
 Eq. 346; Adams v. Broughton, 13 
 Ala. 731. 
 
222 THE BONA FIDES OF THE TRANSFER. 
 
 names of the grantor and grantee. ■^ 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.^ 
 A stipulation may also be inserted that the mortgagor may 
 retain possession until the mortgagee requires a sale.^ A 
 stipulation that the grantee shall employ the debtor's 
 apprentices is merely collateral, and does not vitiate the 
 transaction.* No 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. ^ If the grantor is insolvent, the reservation of even 
 a life interest in the property will make the whole transfer 
 void.^ 
 
 § 194. Secret Trusts. — No conveyance is deemed bona fide 
 within the proviso wljich is accompanied with any secret 
 trust.'' It matters not how this secret trust is created or 
 expressed, or whether it is express or implied.^ 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 
 
 IChrist's Hospital V. Budgin, 2 Melvin, 42 N. H. 510; Brinton v. 
 
 Vern. 683; Kingdome v. Bridges, 2 Hook, 3 Md. Ch. 477; Ford v. Cald- 
 
 Vern. 67. well, 3 Hill (S. C.) 248; Hunters v. 
 
 ^Graham v. Lockhart, 8 Ala. 9; Waite, 3 Gratt. 26; Watts z/. Thomas, 
 
 Wilson V. Russell 13 Md. 494; 71 2 P. Wms. 364. 
 Am. Dec. 645. «Young v. Heermans, 66 N. Y. 
 
 3Dubose V. Dubose, 7 Ala. 235; 374; Sandlin z/. Robbins, 62 Ala. 477. 
 Brock V. Headen, 13 Ala. 370; Mar- 7Twyne's Case, 3 Co. 80; S. C. 
 
 riott V. Givens, 8 Ala. 694; Cheatham Moore, 638. 
 V. Hawkins, 76 N. C. 335. SRice v. Cunningham, 116 Mass. 
 
 4Paunce v. L,esley, 6 Penn. 121. 466; Coolidge v. Melvin, 42 N. H. 
 
 SMackason's Appeal, 42 Penn. 510. 
 330; 82 Am. Dec. 517; Coolidge v. 
 
THE BONA FIDES OF THE TRANSFER. 223 
 
 him his debt when he is able, this is not bona fide within 
 the proviso.^ The secret trust which is illustrated by this 
 example is manifestly a trust which makes the transfer 
 merely colorable. 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.* 
 
 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 
 sufiBcient. If any secret, substantial advantage is secured 
 to the debtor from the use of the property, or from its pro- 
 ceeds, this constitutes a secret trust.^ If, for instance, 
 there is a secret trust to support the debtor,* 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 
 
 ITwyne's Case, 3 Co. 80; S. C. sale that the purchaser shall hold 
 
 Moore, 638. the property in trust for the debtor 
 
 ^Eveleigh v. Purrsford, 2 Mood. renders the sale void as to subse- 
 
 & Rob. 539; Sydnorz/. Gee, 4Leigh, quent creditors. Bostwickz'. Blake, 
 
 535;Coburn v. Pickering, 3 N. H. 145 HI- 85, 34 N. E. 38- And see 
 
 415; 14 Am. Dec. 375; Beers v. Bots- Clement v. Cozart, 109 K. C. 173, 13 
 
 ford, 13 Conn. 146; Michael v. Gay, S. E. 862. See sections 51-52-53. 
 
 I F. & F. 409; Claytor v. Anthony, ante. 
 
 6 Rand. 285; New England Marine SRice v. Cunningham, 116 Mass. 
 
 Ins. Co. V. Chandler, 16 Mass. 275; 466; Coburn v. Pickering, 3 N. H. 
 
 Rea V. Alexander, 5 Ired. 644; Hin- 415; U Am. Dec. 375. 
 ton V. Curtis, i Pitts. L. J. 198; 4Rice v. Cunningham, 116 Mass. 
 
 Leadman v. Harris, 3 Dev. 144; 466; Franklin v. Claflin, 49 Md. 24. 
 Sturdivant v. Davis, 9 Ired. 365; SGrant z/. Lewis, 14 Wis. 487; 80 
 
 Grant f. Lewis, 14 Wis. 487; 80 Am. Am. Dec. 785. An absolute deed 
 
 Dec. 785; Luff V. Horner, 3 F. & F. intended as a mortgage is construct- 
 
 480; Dewey v. Bayntun, 6 East. 257; ively fraudulent on account of the 
 
 Power V. Alston, 93 111. 587; HofE- secret trust. Beidler v. Crane, 135 
 
 man w. Gosnell, 75 Md. 577; 24 Atl. 111.92,25 N. E. 655; Campbell®. 
 
 28; State V. McBride, 105 Mo. 265; Davis, 85 Ala. 56; 4 So. 140; First 
 
 15 S. W. 72; Newell v. Wagness, i Nat. Bank v. Kansas Cy. Lime Co., 
 
 N. D. 62, 44 N. W. 1014. 43 Mo. App. 561. See section 55, 
 
 A secret agreement upon a sheriff's ante. 
 
224 THE BONA FIDES OF THE TRANSFER. 
 
 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 
 confideiice 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 
 benefit to himself from such pleasure and favor of the 
 grantee while his creditors can not reach that interest in 
 any way.-' 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.^ 
 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.* 
 
 § 195. Right of Possession as a Consideration. — A full con- 
 sideration may be given in such a form as to defeat credit- 
 ors, and thus render a transfer void.* 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 
 face, there is a concealed agreement between the parties to 
 
 iHawkins v. Alston, 4 Ired. Eq. Am. Dec. 290; Barrz/. Hatch, 3 Ohio, 
 
 137. 527; McCully V. Shackhamer, 4 Neb. 
 
 2Albee v. Webster, i5 N. H. 362; 438. 
 Newsom v. Roles, i Ired. 179; Glenn SAlbee v. Webster, 16 N. H. 362; 
 
 V. Randall, 2 Md. Ch. 220; Anderson Towle v. Hoitt, 14 N. H. 61. 
 V. Fuller, i McMullan Ch. 27; 36 4Bott z;. Smith, 21 Beav. 511. 
 
THE BONA FIDES OF THE TRANSFER. 225 
 
 it inconsistent with its terms, securing a benefit to tlie 
 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.^ 
 
 § 196. 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,^ is 
 a fraud upon the creditors, and renders the transaction 
 covinous. 
 
 § 197. 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 aflfection, 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 
 
 ILukins v. Aird, 6 Wall. 78; 433; Beach v. Atkinson, 87 Ga. 288, 
 
 Macomber v. Peck, 39 Iowa, 351; 13 S. E. 591; Bass v. Woolf, 88 Ga. 
 
 Carter v. Happel, 49 Ala. 539; 427, 14 S. E. 589; Hawkes v. Eraser, 
 
 Lang V. Stockwell, 55 N. H. 561; 52 Minn. 201, 53 N. W. 1144; Brooks 
 
 Sims V. Gaines, 64 Ala. 392; Edwards v. McMeekin, 37 S. C. 285, 15 S. E. 
 
 V. Stinson, 59 Geo. 443; Mitchell 1019. 
 
 V. Stetson, 64 Geo. 442; Barber v. Even though the transfer be by 
 
 Tirrell, 54 Geo. 146; Scott v. Hart- judgment and execution sale, 
 
 man, 26 N. J. Eq. 89; Sparks v. Phelps v. Smith, 116 Ind. 387, 19 
 
 Mark, 31 Ark. 666; Guffin v. First N. E. 156. 
 
 Nat'l Bank, 74 111. 259; Moore v. But an agreement between the 
 
 Wood, 100 111. 451; Dean v. Skinner, purchaser at an execution sale, who 
 
 42 Iowa, 418; Fellows v. Lewis, 65 acts in good faith, and the debtor, 
 
 Ala. 343; 39 Am. Rep. i; vide permitting the debtor to redeem 
 
 Oriental Bank v. Haskins, 44 Mass. and to have the crops, the execution 
 
 332;. 37 Am. Dec. 140; St. John v. creditor not knowing of the agree- 
 
 Camp, 17 Conn. 222; Howe Machine ment, is not fraudulent. Smith v. 
 
 Co. V. eiaybourn, 6 Fed. Rep. 438. Dobbins, 87 Ga. 303, 13 S. E. 49^- 
 
 ^Collusion in the fraudulent spiatt v. Brown, 33 Mass. 553; 
 
 intent vitiates the transfer. Henry Pettibone v. Stevens, 15 Conn. 19; 
 
 V. Harrell, 57 Ark. 569; 22 S. W. Bentz v. Rockey, 69 Penn. 71. 
 
226 THE BONA KIDES OP THE TRANSFER. 
 
 a 
 
 wMch. prevents the grantee from aiding the debtor or his 
 family^ or disposing of his own as he pleases. 
 
 § 198. 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 ownership 
 of the property, the power is inconsistent with a fair, 
 honest and absolute transfer, and renders it fraudulent and 
 void.^ A stipulation that the vendee may return the 
 property whenever he chooses, and annul the contract be- 
 fore 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.^ 
 
 § 199. 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.* The transaction is equally fraudulent if enough 
 
 'Dallam v. Renshaw, 26 Mo. 533; levied on under their executions 
 Pinkston t). McLemore, 31 Ala. 308; and give it to the debtor. Pehrson 
 Compton IS. Perry, 23 Tex. 414; v. Hewitt, 79 Cal. 594, 21 Pac. 950. 
 Ocoee Bank v. Nelson, i Cold. 186; See section 175 ante. 
 Bumpas v. Dotson, 7 Humph. 310; 2West v. Snodgrass, 17 Ala. 549; 
 46 Am: Dec. 81; Stuck v. Mackey, Bethel v. Stanhope, Cro. Eliz. 810; 
 4 W. & S. 196; Cureton v. Doby, 10 Anon. Dyer, 295, a; Rex v. Notting- 
 Rich. Eq. 4"; 73 Am. Dec. 96; ham, Lane, 42; Tarback v. Mar- 
 Webb V. Roff, 9 Ohio St. 430; bury, 2 Vern. 510; Peacock z/. Monk, 
 Young V. Dumas, 39 Ala, 60; Kilby i Ves. Sr. 127; Jenkyn v. Vaughan, 
 ■"• Haggin, 3 J. J. Marsh. 208; 3 Drew, 419; s. c. 25 L. J. Ch. 338: 
 Young V. Stallings, 5 B. Mon. 307; Rock v. Dade, May on Fraud, 519; 
 Winch w. Jaraes, 58 Penn. 297; Car- Fisher v. Henderson, 8 N. B. R. 
 ter V. Happel, 49 Ala. 539; Thorpe 175; Donovan v. Dunning, 69 Mo- 
 V. Beavans, 73 N. C. 241. The as- 436; vide Sagitary ». Hide, 2 Vern. 
 signer's receipt of money due on a 44. 
 
 contract, by the permission of the SShannon v. Commonwealth, 8 
 
 assignee, does not render the trans- S. & R. 444; West v. Snodgrass, 17 
 
 action fraudulent. Abbott v. Ala. 549. 
 
 Davidson, 18 R. I., Index L. Iv. 82, 4Albee v. Webster, 16 N. H. 362; 
 
 25 Atl. 859. Church v. Chapin, 35 Vt. 223; Gunn 
 
 Where a defendant confesses v. Butler, 35 Mass. 248; Geiger v. 
 
 judgment for debts justly due it is Welsh, i Rawle, 349; Jackson v, 
 
 not fraudulent for judgment credit- Parker, 9 Cow. 73; Robinson v. 
 
 ors to agree to buy the property Stewart, 10 N. Y. 189; Smith v. 
 
THE BONA FIDES OF THE TRANSFER. 
 
 227 
 
 Smith, II N. H. 459; Russell v. 
 Hammond, i Atk. 14; Stokes v. 
 Jones, 18 Ala. 734; s. C. 21 Ala. 731; 
 Sturdivant v. Davis, 9 Ired, 365; 
 Crane v. Stickles, 15 Vt. 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. Rob- 
 bins, 36 Vt. 422; Miner v. Warner, 
 
 2 Phila. 124; s. C. 2 Grant, 448; Haw- 
 kins 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, 25 Minn. 199; 
 Tupper V. Thompson, 26 Minn. 385; 
 Stearns v. Gage, 79 N. Y. 102; 
 Davidson v. Burke, 143 111. 139; 32 
 N. E. 514; Vanston v. Davidson, 41 
 111. App. 646; Harting v. Jockers, 
 31 111. App. 67; Byrnes v. Volz, 53 
 Minn. 110, 54 N. W. 942; MuUen- 
 neaux v. Terwilliger, 50 Hun 526, 
 
 3 N. Y. Supp. 442. 
 
 "There is no question but, as 
 between parties, the consideration 
 is adequate, and it may be the 
 motives of the parties were free 
 from censure, but the principle it 
 would seem, must, to every correct 
 apprehension, bear its condemna- 
 tion upon its statement. It is that 
 a debtor may transfer all his pro- 
 perty to another, thereby defeat 
 his creditor in the collection of his 
 debt, and yet enjoy the use of the 
 property. The size of the family, 
 the value of the property disposed 
 of, and the amount or character of 
 the debts, are obviously immaterial 
 since the proposition admits of no 
 limitation in this respect. If the 
 debtor may make a covenant 
 for support and maintenance, 
 
 he may prescribe, even to the minu- 
 test details, the kind and quality. 
 And thus property of immense 
 value might be transferred so as to 
 secure a life support, leaving credit- 
 ors, even for property thus trans- 
 ferred, unpaid and without possi- 
 bility of payment. 
 
 The law allows no man, beyond 
 the specific exemptions of the stat- 
 ute, by any form of contract or 
 mode of disposition of property, 
 whatever it may be, to secure the 
 use of property to himself, to the 
 exclusion of his creditors. 
 
 It is true the mere fact that a 
 party is indebted does not operate 
 to deny him the right of securing a 
 future support for himself and 
 family, or for that matter, for any 
 member of his family, or for a 
 stranger, by transferring property 
 therefor, provided that he retains 
 otherproperty of a sufficient amount 
 for the payment of his debts. But 
 he cannot defraud his creditors by 
 taking everything from which they 
 can enforce payment of their debts, 
 and transferring it to anticipate 
 his own future wants, or those of 
 others." Aunis v. Bonar, 86 111. 
 128-130. 
 
 "The consideration of the deed 
 on the son's part was his promise 
 to support and maintain the grantor 
 and his wife during their natural 
 lives. This is in legal efiect; a 
 conveyance of property to the son 
 by the grantor in trust for himself, 
 and is fraudulent and void as to ex- 
 isting creditors of the grantor. No 
 debtor especially if insolvent, is 
 permitted to tie up his property by 
 a conveyance of this kind, in trust 
 for the enjoyment of himself and 
 his family, so as to place it beyond 
 the reach of his creditors." Wood- 
 all V. Kelly, 85 Ala. 368, 7 Am. 
 St. Rep. 57, 5 So. 164; Sandlin v. 
 Robbins, 62 Ala. 477; Benedict v. 
 
228 THE BONA FIDES OF THE TRANSFER- 
 
 is not left for the payment of the grantor's debts.^ It is, 
 in effect, a transfer to the use of the grantor, which is 
 always void.^ The gist of the 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.^ 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, 
 for they can not complain if the grantee assumes burdens 
 which are not to their prejudice.* An agreement under 
 
 Renfro, 75 Ala. 121, 51 Am. Rep. Anon. Dyer, 295, a; Adams v. 
 
 429; Reynolds v. Crook, 31 Ala. 634; Adams, i Dane Ab. 636. 
 
 Miller v. Stetson, 32 Ala. 161. 3Sidensparker v. Sidensparker, 
 
 A conveyance of property in con- 52 Me. 481; Egery t/. Johnson, 70 
 
 sideration of a pension for a num- Me. 258; Graves v. Blondell, 70 
 
 ber of years is fraudulent. Parker Me. 190; Moore v. Wood, 100 111. 
 
 V. Cain, 28 111. App. 598. 451. 
 
 But a transfer in consideration of ^Slater v. Dudley, 35 Mass. 373; 
 
 future support was upheld against Albee v. Webster, 16 N. H. 362; 
 
 a creditor of whose claim grantee Howe Machine Co. v. Claybourn, 6 
 
 was ignorant until twenty years Fed. Rep. 458. An agreement to 
 
 after the transfer. Hisle v. Rudi- support grantor, which forms no 
 
 sill, Va., 16 S. E. 673. part of the consideration but is ex- 
 
 And see Smith v. Pierce, Vt., 25 traneous and gratuitous, will not 
 
 Atl. 1092. avoid a transfer. Bent v. Bent 3 
 
 ICrane v. Stickles, 15 Vt. 253; N. Y. Supp. 750. 
 
 Jones V. Spear, 21 Vt. 426; Tyner v. In Muenks v. Bunch, 90 Mo. 500, 
 
 Somerville, i Smith, 149; Annis v. 7 West. 761, 3 S. W. 63, an agree- 
 
 Bonar, 86 111. 128; Egery v. John- ment to support vendor was upheld 
 
 son, 70 Me. 258; Graves z/. Blondell, against creditors, but it appeared 
 
 70 Me. 190; Woodward v. Wyman, that the agreement was only part 
 
 53 Vt. 645. of the consideration and that the. 
 
 ZCadogauz/. Kennett, 2 Cowp. 432; property was exempt from execu- 
 
CONSIDERATION. 229 
 
 the same circumstances may also be made to employ the 
 grantor.^ 
 
 § 200. Support by Solvent Person.— If the grantor is free 
 from debf'^ or retains property amply suificient 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. 
 
 CHAPTER IX. 
 CONSIDERATIOlSr. 
 
 § 201. What is a Good Consideration. — The statute protects 
 all estates and interests which are conveyed on a good con- 
 sideration, 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 re- 
 quires 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 con- 
 strued to mean a valuable consideration as between credit- 
 ors and others claiming under the debtor.* 
 
 tion, althougli the decision does not v. Bailey, 5 Pla. 9; Wooten v. Clark, 
 
 seem to be based on the fact that 23 Miss. 75; Parker v. Nichols, 24 
 
 the property conveyed was exempt. Mass. m; Johnson z/. Johnson, 54 
 
 IGriffin v. Cranston, lo Bosw. i; Mass. 63; Matthews v. Jordan, 88 
 
 s. c. I Bosw. 281. 111. 602. 
 
 ^Buchanan v. Clark, 28 Vt. 799; ^Xwyne's Case, 3 Co. 80; s. c. 
 
 Mills V. Mills, 3 Head, 705; Mahony Moore, 638; Cunningham v. Dwyer, 
 
 V. Hunter, 30 Ind. 246; Usher v. 23 Md. 2ig; Killough v. Steele, i 
 
 Hazletine, 5 Me. 471; 17 Am. Dec. Stew. & Port. 262; Taylor 9. Jones, 
 
 253;Tibbalsz'. Jacobs, 31 Conn. 428; 2 Atk. 600; Partridge v. Gopp, I 
 
 Hennon v. McClane, 88 Penn. 219. Eden, 163; s. c. Ambl. 596; Thom- 
 
 SHapgood V. Fisher, 34 Me. 407; son v. Dougherty, 12 S. & R. 448. 
 Drum V. Painter, 27 Penn. 148; "Love and affection" is not a con- 
 Johnston V. Zane, 11 Gratt. 552; sideration which will support a con- 
 Baton V. Perry, 29 Mo. 96; Barrow veyance against creditors. Park v. 
 
230 CONSIDERATION. 
 
 § 202. When a Transfer is Yoluntary. — 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 
 the fact whether anything valuable pa«ses between the 
 parties. "^ 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.^ An illegal consideration is, in 
 contemplation of law, no consideration, and is not, therefore, 
 sufficient to support a transfer as against creditors.^ A 
 parol agreement to make a gift does not vest any right in . 
 the donee, either legal or equitable, for it 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.* 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.^ A trans- 
 fer which the law would compel a party to make is not 
 voluntary.^ 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.'' 
 
 Batty, 80 Ga. 353, 5 S. E. 492; Gif. 258; Goldsmith v. Russell, 5 
 
 Snyder v. Free, 114 Mo. 360, 21 S. De G. M. & G. 547. 
 W. 847; Read V. Mosby, 3 Pickle SWeeks v. Hill, 38 N. H. 199; 
 
 (Term.) 759, 11 S. W. 940; Slater v. Jose v. Hewitt, 50 Me. ^48; Weeden 
 
 Moore, 86 Va. 26, 9 S. E. 419. v. Bright, 3 W. Va. 548. 
 
 A covenant from which the ^Rucker v. Abell, 8 B. Hon. 566; 
 
 grantor may be released will not 48 Am. Dec. 406; Davis v. McKin- 
 
 constitute a valuable consideration ney, 5 Ala. 719; Hoye v. Penn, i 
 
 to support a transfer. Arnold z'.Hag- Bland, 28; S. c. 2 H. & J. 477; Wor- 
 
 erman, 45 N. J. Eq. 186, 17 Atl. 93. thington v. Bullitt, 6 Md. 172; S. c. 
 
 IJackson v. Peek, 4 Wend. 300; 3 Md. Ch. 99; Hubbard v. Allen, 59 
 
 Shontz V. Brown, 27 Penn. 123; Ala. 283. 
 
 Washband v. Washband, 27 Conn. SBonny v. GriflBth, Hayes, 115. 
 
 424- BBuie V. Kelly, 5 Ired. 169. 
 
 2Spurgeon v. Collier, i Eden, 55; 7Van Bibber v. Mathis, 52 Tex. 
 
 Planck V. Schermerhorn, 3 Barb. 406; Patterson v. McKinney, 97 111. 
 
 Ch. 644; Penhall v. Elwin, i Sm. & 41. 
 
CONSIDERATION. 
 
 231 
 
 § 203. Statutory Defence may be Waived.— To the proposi- 
 tion that a conveyance in pursuance or in consideration of 
 an agreement which can not be enforced is voluntary, 
 there is one exception. Whenever tliere 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,^ or a discharge in bankruptcy,** is a good con- 
 sideration for a conveyance. The statute of frauds is a 
 defence 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.^ 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.^ If the title to the property is im- 
 properly taken in his name, he may convey it to the real 
 
 ISayre v. Fredericks, i6 N. J. 
 Eq. 205; Keen v. Kleckner, 42 Petin. 
 529; Updike V. Titus, 13 N. J. Eq. 
 151; Shearon ®. Henderson, 38 Tex. 
 245; French v. Motley, 63 Me. 326; 
 Hale V. Stewart, 14 N. Y. Supr. 
 591; Brookville Nat'l. Bank v. Trim- 
 ble, 76 Ind. 195; Manchester v. Tib- 
 betts, 121 N. Y. 219, 18 Am. St. Rep. 
 816; De Valle v. Hyland, 76 Hun 
 493, 27 N. Y. Supp. 1059; Davis v. 
 Howard, 73 Hun 347, 26 N. Y. 
 Supp. 194; vide Crawford v. Carper, 
 4 W. Va. 56. 
 
 But tbougli the statute of limita- 
 tions may be waived, yet the fact 
 that the antecedent debt which is 
 the consideration is barred by limi- 
 tations is a circumstance to be con- 
 sidered in determining good faith. 
 McConnell v. Barber, 85 Hun 360- 
 362, 33 N. Y. Supp. 480, citing this 
 section; Sturm v. Chalfant, 38 W. 
 Va. 248, 18 S. E. 451. 
 
 ^Wilson V. Russell, 13 Md. 494; 
 71 Am. Dec. 645. 
 
 SGoff V. Rogers, 71 Ind. 459; 
 Brown v. Rawlings, 72 Ind. 505; 
 Creswell v. McCaig, 11 Neb. 222; 
 First Nat'l Bank v. Bertschy, 52 
 Wis. 438; I/ivermore v. Northrup, 
 44 N. Y. 107; Stowell V. Hazlett, 57 
 N. Y. 635; Sedgwick !). Tucker, 90 
 Ind. 271. 
 
 *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 It. 
 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 ; Dygertw. 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. 
 19s; vide Smith v. Lane, 20 Mass. 
 205. 
 
232 CONSIDERATION. 
 
 owner,^ or to a trustee for his benefit,^ for tlie purpose of 
 correcting the mistake, whether a trust could be enforce,d 
 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.^ The moral obligar 
 tion resting upon the grantee holding under a fraudulent 
 transfer is,suflBcient to support a reconveyance against his 
 creditors.* Property which has been conveyed to a party 
 to give him the necessary qualification to hold an office, 
 may be reconveyed.^ A transfer in consideration of a 
 parol ante-nuptial contract is not within the foregoing 
 exception, and is merely voluntary.® A debt which has 
 been discharged by the voluntary release of the creditor is 
 not a good consideration as against other creditors.^ The 
 law thus makes a distinction between a release by a 
 statute and a release by the voluntary act of the party. 
 An objection to receiving parol evidence can not arise 
 when the party bound by the agreement has acted on it in 
 good faith.^ A Confederate note was a valuable consider- 
 ation if the parties and the property were at the time 
 
 ISeeders v. Allen, 98 111. 468; Sjackson v. Ham, 15 Johns. 261; 
 
 City Nat'l Bank v. Hamilton, 34 N. Robert v. Gibson, 6 H. & J. 116. 
 
 J. Eq. 158; McConnell v. Martin, 52 BWarden v. Jones, 2 De G. & J. 
 
 Ind. 454; Harlen v. Watson, 63 Ind. 76; s. c. 17 L. J. Ch. 190; Dundas v. 
 
 143; Garrity v. Haynes, 53 Barb. Dutens, 2 Cox, 235; s. c^ i Ves. Jr. 
 
 596; Bancroft v. Curtis, 108 Mass. 196; Spurgeon v. Collier, i Bden, 
 
 47; Parton v. Gates, 41 Ind. 456; 55; Murphy v. Abraham, 15 Ir. Eq. 
 
 Summers v. Hoover, 42 Ind. 153. (N. S.) 371; Reade v. Livingston, 3 
 
 SMcLaurie v. Partlow, 53 111. 340; Johns, Ch. 481, 8 Am. Dec. 520; 
 
 Garrity w. Haynes, 53 Barb. 596. Randall v. Morgan, 12 Ves. 67; 
 
 SBilsborrow t/. Titus, 15 How. Pr. Smith v. Greer, 3 Humph. 118; 
 
 95. Hayes v. Jones, 2 Pat. & H. 583; 
 
 4Clark V. Rucker, 7 B. Mon. 583; Andrews v. ' Jones, 10 Ala. 400; 
 Davis V. Graves, 29 Barb. 480; Stan- Wood v. Savage, 2 Doug. (Mich.) 
 ton V. Shaw, 3 Baxter, 12; Caffal v. 316; s. c. Walk. Ch. 471. See sec- 
 Hale, 49 Iowa, 53; Petty v. Petty, 31 tions 274-276, post. 
 N.J. Eq. 8, 39 Am. Dec. 501. Contra 7King v. Moore, 35 Mass. 376; 
 Susong «. Williams, 1 Heisk, 625; Nightingale v. Harris, 6 R. I. 321. 
 Chapin v. Pease, 10 Conn. 69, 25 Am. Sjones v. Rviffin, 3 Dev. 404. 
 Dec. 56; Allison v. Hagan, 12 Nev. 
 38; Maher v. Bovard, 14 Nev. 324. 
 
CONSIDERATION. 
 
 233 
 
 witMn the Confederate lines.^ And the defence of usury 
 may be waived.^ 
 
 § 204. When Consideration May be Paid.— The considera- 
 tion must arise at the time of the transfer.* It is not, how- 
 ever, necessary that an actual payment shall be made. A 
 promise to pay, or the giving of securities, will constitute a 
 party a purchaser.* A check given in good faith on a 
 banker having funds to pay it is prima facie payment if 
 accepted as cash, although its payment is subsequently sus- 
 pended on account of a controversy concerning the prop- 
 erty.^ A transfer may be made for an annuity as well as 
 for money in hand.^ An existing debt^ or liability, either 
 as indorser^ or surety,^ is suflBcient. The debt may also be 
 
 iMcDonald v. Kirby, 3 Heisk. 
 607. 
 
 ^Murray v. Judson, 9 N. Y. 73; 
 Pierce v. Wimberly, 78 Tex. 181, 14 
 S. W. 454. 
 
 SStarr v. Starr, i Ohio, 321. 
 
 ^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, i Bond, 
 175; Weaver v. Nugent, 72 Tex. 272, 
 10 S. W. 458. 
 
 SWoodville v. Reed, 26 Md. 179. 
 
 BUnion Bank v. Toomer, 2 Hill 
 Ch. 27. 
 
 ^Holbird v. Anderson, 5 T. R. 
 23s; Loeschigk v. Hatfield, 5 Robt. 
 26; s. c. 4 Abb. Pr. (N. S.) 210; 51 N. 
 Y. 660; Gleason v. Day, 9 Wis. 498; 
 Seymour v. Wilson, 19 N. Y. 417; 
 Adams v. Wheeler, 27 Mass. 199; 
 Gibson v. Seymour, 4 Vt. 518; Sey- 
 mour V. Briggs, II Wis. 196; Mc- 
 Mahan v. Morrison, 16 Ind. 172; 
 Towsley v. McDonald, 32 Barb. 604; 
 Wilson V. Ayer, 7 Me. 207; Starin v. 
 Kelly, 36 N. Y. Sup. 366; McMur- 
 trie V. Riddell, 9 Colo. 497, 13 Pac. 
 181; Beagle v. Miller, 37 Neb. 855, 
 56 N. W. 710; Redpath w. Lawrence, 
 
 42 Mo. App. loi. And see sections- 
 164, 167, 187, ante. 
 
 8Jewett V. Warren, 12 Mass. 300J 
 Newman v. Bagley, 33 Mass. 570; 
 Buffum V. Green, 5 N. H. 71; Bar- 
 tels V. Harris, 4 Me. 146; Prescott 
 V. Hayes, 43 N. H. 593; Hendricks 
 V. Robinson, 2 Johns. Ch. 283; s. c. 
 17 Wend. 438; Griffith v. Bank, 6 G. 
 & J. 424; Bank v. McDade, 4 Port.. 
 252; Mcl/aren v. Thompson, 40 Me. 
 284; Stevens v. Hinckley, 43 Me. 
 440; Boswell V. Green, 25 N. J. 390; 
 Lindle v. Neville, 13 S. & R. 227; 
 St. John V. Camp, 17 Conn. 222. 
 
 SFlingw. Goodall, 40 N. H. 208; 
 Ferguson v. Furnace Co., 9 Wend. 
 345 ; Gorham v. Herrick, 2 Me. 37; 
 Stedman v. Vickery, 42 Me. 132; 
 Hopkins v. Scott, 20 Ala. 179; Leg- 
 gett V. Humphreys, 21 How. 65; 
 Miller v. Howry, 3 Penn. 374; Gib- 
 son 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; Smith v. Rankin, 45 
 Kans. 176, 25 Pac. 586, and cases 
 cited. 
 
 And this is especially true when 
 the surety absolutely assumes the 
 debt. Kaufman v. Coburn, 30 Neb. 
 
234 OONSIDBRATIOlir. 
 
 unliquidated.-^ If a father takes a note at the time of 
 making an advance to his son, he retains the control of the 
 money, and a transfer in consideration of it is valid, 
 although he may not have intended under certain circum- 
 stances to enforce payment.^ A person who is entering 
 into a bond as surety, for the faithful performance by an 
 officer of his public duties, may provide for his counter 
 security; for there is a contract at the time to repay to the 
 surety any money the latter may be compelled to pay for 
 the principal, and the performance of this may be insured 
 by security taken either before or after default.^ If the 
 liability of a surety on an administration bond is extin- 
 guished by a settlement of the estate and a discharge of 
 the principal, a conveyance to indemnify him is without 
 ■consideration.* 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.^ 
 
 § 205. Not merely Good between the Parties.— The con- 
 sideration must be valuable, and not such as is merely 
 good between the parties,® but a mortgage to secure the 
 debt of another is not voluntary.^ A voluntary bond is 
 not a good consideration as against creditors,^ but if it is 
 due, or the instalments payable thereon are in arrear, 
 then the sum so due can be enforced at law, and is a good 
 
 '672, 46 N. W. loio; Harmon v. 417; vide Garretson v. Kane, 27 N. 
 
 McRae 91 Ala. 401, 8 So. 548; Flan- J. 208. 
 
 nery v. VanTassel, 62 Hun 621, 16 7Marden v. Babcock, 43 Mass. 
 
 N. Y.Supp. 741; PoUockf. Jones, 96 99; ex parte Hearn, Buck Bank 
 
 Ala. 492, II So. 529. Cas. 165. 
 
 IDewey v. Littlejolin, 2 Ired. SHawkins v. Allston, 4 Ired. Eq. 
 
 Eq. 4951 vide Adams v. Adams, i 137; McGill z/. Harman, 2 Jones Eq. 
 
 Dane Ab. 636. 179; Stiles v. Attorney General, 2 
 
 SArnold z;. Arnold, 8 B. Mon. 202. Atk. 152; Gilham z/. Ivocke, 9 Ves. 
 
 SDewey v. I,ittlejohn, 2 Ired. Eq. 612; Stephens!'. Harris, 6 Ired Eq. 
 
 495- 57; Cray v. Rooke, Cas. Temp. 
 
 ^Crawfordz;. Kirksey, soAla. 591. Talb. 153; Jones v. Powell, 1 Eq. 
 
 SStarr v. Starr, i Ohio, 321; Cas. Abr. 84; Lechmere v. Earl, 3 
 
 •Oliver v. Moore, 23 Ohio St. 473. p. Wms. 211. 
 
 ^Seymour v. Wilson, 19 N. Y. 
 
CONSIDERATION. 
 
 235 
 
 consideration for a conveyance made in good faith.^ In- 
 terest which cannot be collected at law is not a good con- 
 sideration,^ 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.^ 
 
 § 206. Taluable 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.^ 
 The note of a, feme covert is not a valuable consideration, 
 although it may be paid subsequently.^ A second judgment 
 may be taken for a prior judgment without releasing or 
 satisfying the latter,^ for a creditor may take as many 
 
 IStiles V. Attorney General, 2 
 Atk. 152; Gilham v. Locke, 9 Ves. 
 612; Tanner v. Byne, i Sim. 160; 
 ex parte Berry, 19 Ves. 218; Hop- 
 kirk V. Randolph, 2 Brock. 132; 
 Welles V. Cole, 6 Gratt. 645. Contra, 
 Bank v. Mitchell, Rice Ch. 389. 
 
 SWliittacre v. Fuller, 5 Minn. 
 508; McKentyt/. Gladwin, 10 Cal. 
 227; Scales V. Scott, 13 Cal. 76. 
 
 SSpencer v. Ayrault, 10 N. Y. 202. 
 
 *The unsecured note of an in- 
 solvent is not a valuable considera- 
 tion. Helms J/. Green, 105 N. C. 251, 
 II S. E. 47°. 
 
 The transfer to grantor of grant- 
 or's own notes held by grantee, said 
 notes having been given without 
 consideration, does not constitute a 
 sufficient consideration as against 
 creditors. Neal v. Foster, 36 Fed. 
 29. 
 
 A mortgage given to secure the 
 payment of the price of worthless 
 property believed by the mortgagor 
 to be valuable, rests upon a good 
 consideration. Thurber v. Sexauer, 
 
 15 Neb. 541. But not so if the 
 mortgagor has reason to know of 
 the worthless character of the 
 property. Johnson v. Phillips, 2 
 N. Y. Supp. 432. 
 
 A transfer of property in repara- 
 tion of money embezzled is based 
 on a valuable consideration. Wash- 
 ington Brewery Co. v. Carry, Md., 
 24, Atl. 151; First Nat. Bank v. 
 Myers, 38 Neb. 152, 56 N. W. 889. 
 
 A transfer of land from the holder 
 of the legal title to the equitable 
 owner is based on a good considera- 
 tion as to creditors having no lien 
 on the land. Holden v. Burnham> 
 63 N. Y. 74; Dunn v. Whalen, 66 
 Hun 634, 21 N. Y. Supp. 869; 
 Brooks V. Wilson, 53 Hun 173, 6 N. 
 Y. Supp. 116. 
 
 SMatthews v. Rice, 31 N. Y. 457; 
 Washband v. Washband, 27 Conn. 
 424; vide McCorkle v. Hammond, 3 
 Jones (N. C.) 4441 Winchester v. 
 Reid, 8 Jones (N. C.) 377- 
 
 6Howe V. Wildes, 34 Me. 566. 
 7Cox V. McBee, i Spears, 195. 
 
236 ■ CONSIDERATION. 
 
 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 mort- 
 gage, and a judgment confessed for the debt.^ A promise 
 to pay specific debts whether by parol or in writing is a 
 valuable consideration,® but when the debts are also incum- 
 brances on the property, the purchaser must agree to pro- 
 tect the debtor and the rest of his property from them, and 
 not merely take the property subject to the incumbrances.^ 
 If the value of the property exceeds the amount of the 
 incumbrance, an agreement to pay off the incumbrance is 
 not a good consideration * A note may be given to an 
 agent for a debt due to the principal and a judgment con- 
 fessed thereon.''' 
 
 § 207. Release of Equity of Kedeniption. — A conveyance 
 of the equity of redemption by a mortgagor to a mort- 
 gagee 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 
 
 ISmitli's Appeal, 2 Penn. 331. S. W. 548; CofiEn v. Day, 34 Fed. 
 
 SShontz V. Brown, 27 Penn. 123; 687; Page v. Dillon, Vt, 18 Atl. 814. 
 Jenkins z/. Peace, i Jones (N. C.) 3U. S. z/. Mertz, 2 Watts, 406; Car- 
 413; Stevens v. Hinckley, 43 Me. penterz/. Carpenter, 25 N.J. Eq- 194- 
 440; Gunn V. Butler, 35 Mass. 248; ^First Nat'l Bank v. Bertschy, 
 Pattison z/. Stewart, 6 W. & S. 72; 52 Wis. 438. Where parents con- 
 Meade v. Smith, 16 Conn. 346; veyed property to a son living with 
 Anderson v. Smith, 5 Elackf. 395; them, in consideration of the pay- 
 Seaman V. Hasbrouck, 35 Barb. 151; ment of incumbrances, the couvey- 
 Keen v. Kleckner, 42 Penn. 529; ance was held voluntary as to the 
 Bell V. Greenwood, 21 Ark. 249; excess of the property in value 
 Preston v. Jones, 50 Penn. 54; Van- above the incumbrances. Lyon v. 
 meter v. Vaumeter, 3 Gratt. 148; Haddock, 59 la. 682, 13 N. W. 737; 
 Fleischer w. Dignon, 53 Iowa, 288; Priest z/. Conkliu, 38 111. App. 180. 
 Sonstiby z/. Keeley, 7 Fed. Rep. 447; But see Muenks z/. Bunch, 90 Mo. 
 Ivancovich v. Stern, 14 Nev. 341. 500, 7 West, 761, 3 S. W. 60. 
 The assumption, by transferee, of SHarris z/. Alcock, 10 G. & J. 226; 
 transferor's specified debts, consti- 32 Am. Dec. 158; Insurance Co. v. 
 tutes a valuable consideration. Wallis, 23 Md. 173; Bank v Higgin- 
 Smith V. Spencer, 73 Ala. 299; bottom, 9 Pet. 48. 
 Sweeney v. Conlee, 71 Tex. 543, 9 . 
 
CONSIDERATION. 237 
 
 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 transac- 
 tion a voluntary conveyance as against creditors, the estate 
 must be of greater value than the debt.^ 
 
 § 208. Dama&^es for Unlawful Marriage. — If a woman in 
 contemplation of marriage conveys property to her in- 
 tended husband, and the marriage is void, the failure of 
 the consideration constitutes a sufficient consideration for 
 a re-conveyance.^ As she can also maintain an action at 
 law for the deceit by which she was led into such a mar- 
 riage, the damages inflicted upon her constitute a valuable 
 consideration for a transfer of his property to her.^ In- 
 demnity to a woman against the consequences of an illicit in- 
 tercourse is also a good consideration within the statute,* _ 
 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 vitia- 
 ted by a subsequent cohabitation with the debtor any more 
 than by cohabitation with any other person, unless such 
 subsequent cohabitation entered into the consideration of 
 the transfer.® A transfer as a mere gratuity to a paramour 
 or for her to hold for the benefit of the grantor, or a pur- 
 chase made in her name for the purpose of facilitating 
 future illicit intercourse, is not founded upon a good con- 
 
 iWilliams v. Robbins, 8i Mass. ^Wait v. Day, 4 Denio, 439; Gray 
 
 590; Credle v. Carawan, 64 N. C. v. Mathias, 5 Ves. 286. 
 422; Mittleburg v. Harrison, II Mo. SWait v. Day, 4 Denio, 439; Sher- 
 
 App. 136. man v. Barrett, I McMuUen, 47; 
 
 2porbush v. Williams, 33 Mass. Hargroves v. Meray, 2 Hill Ch. 222; 
 
 ,42. See section 266, e^ seq. Lady Cox's Case, 3 P. Wms. 389; 
 
 spellows V. Emperor, 13 Barb. Gray v. Mathias, 5 Ves. 286; Potter 
 
 92; Hutchinson v. Horn, 1 Smith, v. Gracie, 58 Ala. 303, 29 Am. Dec. 
 
 242, 50 Am. Dec. 470, s. c. i Ind. 748. 
 
 363; Lady Coxs Case, 3 P. Wms. epellows v. Emperor, 13 Barb. 
 
 389; vide Gilham v. Locke, 9 Ves. 92. 
 612. 
 
238 CONSIDERATION. 
 
 sideration within the meaning of the statute.^ A claim of 
 damages for seduction is a valuable consideration.^ 
 
 § 209. Firm Property to Pay Individual Debts. — A firm 
 is in law distinct from the members who compose it, and 
 a transfer of the firm property to pay the separate debts 
 of one of the partners is a voluntary conveyance.-^ A pre- 
 vious division of the property when the firm is insolvent 
 will not make any difference, for there is then nothing to 
 divide.* A debt contracted in the name of one of the 
 partners may, however, be shown to have been for the 
 benefit of the firm, and will then constitute a good con- 
 sideration.^ 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." 
 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.^ 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- 
 
 IWait V. Day, 4 Deuio, 439. A v. Beach, 2 Blackf. 55; Haben v. 
 
 conveyance in consideration of past Harshaw, 49 Wis. 379; Schmidlapp 
 
 sexual intercourse is voluntary. v. Currie, 55 Miss. 597, 30 Am. Rep. 
 
 Jackson v. Miner, loi 111. 550. 530. 
 
 ^Carlisle v. Gaskill, 4 Ind. 219. IBurtus v. Tisdall, 4 Barb. 571. 
 
 SBurtus z/. Tisdall, 4 Barb. 571; The dissolution of an insolvent 
 
 Anderson v. Maltby, 2 Ves. Jr. 244; firm and the division of its assets 
 
 Elliott z;. Stevens, 38 N. H. 311; among the partners for the purpose 
 
 Ferson v. Monroe, 21 N. H. 462; of securing to them individual 
 
 • Geortner v. Canajoharie, 2 Barb. exemptions is not fraudulent /er je. 
 
 625; Dart zf. Farmers' Bank, 27 Barb. Bates !». Callender, 3 Dak. 256, 16 
 
 337; Walsh V. Kelley, 42 Barb. 98; N. W. 506. 
 
 s. c. 27 How. Pr. 359; Wilson ». Sgiegel v. Chidsey, 28 Penn. 279 
 
 Robertson, 21 N. Y. 587; s. c. 19 70 Am. Dec. 124; Gwin z/. Selby, 5 
 
 How. Pr. 350; Hartley v. White, 95 Ohio St. 96; Haben v. Harshaw, 49 
 
 Penn. 31: Darby v. Gilligan, 33 W. Wis. 379; SchaefEer v. Fithian, 17 
 
 Va. 246, 10 S. E. 400. Contra, Ind. 463; Wait z;. Bull's Head Bank, 
 
 Sigler V. Knox County Bank, 8 19 N. B. R. 500. 
 Ohio St. 511; National Bank v. 6Day z;. Wetherby, 29 Wis. 363. 
 
 Sprague, 20 N. J. Eq. 13; Schaeffer. "J Ex parte M.a.yoxi, 4 De G.J. & 
 
 V. Fithian, 17 Ind. 463; McDonald S. 664. 
 
CONSIDERATION. 
 
 23& 
 
 tion of the grantee's assuming the liabilities of the firm,^ 
 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- 
 sideration.^ 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.^ ■ 
 
 § 210. Future Advances. — A transfer may be made in good 
 faith to secure indorsements* or future advances.^ The 
 
 IGrifEn v. Cranston, lo Bosw. i; 
 H. c. I. Bosw 281; Russell w. McCord, 
 
 2 Flip C. Ct. 139. 
 
 2Ste-vrart v. Slater, 6 Duer, 83. 
 
 SHead v. Horn, 18 Cal. 211. 
 
 ^Gardner v. Webber, 34 Mass. 
 407; Calkins v. Lockwood, 16 Conn. 
 276, 41 Am. Dec. 143; U. S. v. Hooe, 
 
 3 Cranch, 73; Goddard v. Sawyer, 
 91 Mass. 78; Worseley v. DeMattos, 
 I Burr, 467. 
 
 SDoyle V. Smith, i Cold. 15; 
 Cole V. Albers, i Gill, 412; Hen- 
 dricks V. Robinson, 2 Joins. 283; s. 
 c. 17 Johns. 438; Craig v. Tappin, 2 
 Sandf. Ch. 78; Townsend v. Empire 
 Co., 6 Duer, 208; Lansing v. Wood- 
 worth, I Sandf. Ch. 43; Bank of 
 Utica V. Finch, 3 Barb. Ch. 293; 
 Carpenter v. Blote, i 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, i Phil. 
 533; Crane v. Deming, 7 Conn. 387; 
 Hubbard v. Savage, 8 Conn. 215; 
 Commercial Bank v. Cunningham, 
 41 Mass. 270, 35 Am. Dec. 322; 
 Wescpttz/. Gunn, 4 Duer, 107; Mc- 
 Daniels v. Colvin, 16 Vt. 300, 42 
 Am., Dec. 512; 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., II N. J. Eq. 49; Barnard v. 
 Moore, 90 Mass. 273; Speer v. Skin- 
 ner, 35 111. 282; Adams v. Wheeler, 
 27 Mass. 199; Badlam v. Tucker, iS 
 Mass. 389, II Am. Dec. 202; Wilder 
 V. Winne, 6 Cow. 284; Smyth v. 
 Ripley, 33 Conn. 306; McGavock v. 
 Deery, i Cold. 265; U. S. v. Lennox, 
 2 Paine, 180; Wilson v. Russell, 13 
 Md. 494, 71 Am. Dec. 645; Irwin v. 
 Wilson, 3 Jones Eq. 210; DeWolf v. 
 Harris, 4 Mason, 515; s. c. 4 Pet. 147; 
 Blood V. Palmer, 11 Me. 414; Miller 
 V. Lockwood, 32 N. Y. 293; Atkin- 
 son V. Maling, 2 T. R. 462; Googins 
 V. Gilmore, 47 Me. 9, 74 Am. Dec. 
 472; Holbrook v. Baker, 5 Me. 309; 
 Griffin v. Stoddard, 12 Ala. 783; 
 Tully V. Harloe, 35 Cal. 302-309, 95 
 Am. Dec. 102; Ackerman v. Hun- 
 sicker, 85 N. Y. 46, 39 Am. Rep. 
 621; vide Bank v. Willard, 10 N. H. 
 210; and compare Perry v. Hardison, 
 99 N. C. 21, 5 S. E. 230. 
 
 A mortgage to secure future 
 advances operates from the time 
 of recording, although the advances 
 may not be made till afterwards. 
 Tapin v. Demartini, 77 Cal. 303, 11 
 Am. St. Rep. 288, 19 Pac. 641; Cent. 
 Trust Co. V. Cont. Iron Works, 51 
 N. J. Eq. 605, 40 Am. St. Rep. 539; 
 
240 
 
 CONSIDERATION. 
 
 mere fact that sucli transfer may afford an opportunity 
 for a fraudulent collusion is not a valid objection,^ for its 
 validity depends upon the attending circumstances. A 
 mortgage to secure future advances should indicate the 
 extent of the lien with certainty,^ but no certain sum need 
 be named.^ It may be taken for an absolute sum.* A 
 judgment may also be taken to secure future advances.^ 
 
 § 211. Services between Members of the same Family.— 
 
 The law implies no promise to pay for services rendered 
 
 , Jacobus V. Mut. Ben. Life Ins. Co., 
 27 N. J. Eq. 604; Piatt v. Griffith, 
 27 N. J. Eq. 207; Ward v. Cooke, 17 
 N. J. Eq. 93; Bell v. Fleming, 12 
 N. J. Eq. 490; Pillow V. Sentelle, 
 49 Ark. 430, 5 S. W. 783. 
 
 The mortgage is good as to future 
 advances made before the mort- 
 gagee has actual notice of subse- 
 quent incumbrances. Advances 
 made after the mortgagee has actual 
 notice of the existence of subse- 
 quent encumbrances will not be 
 protected as against those incum- 
 brances. The notice must be actual, 
 as distinguished from constructive 
 notice by record. Tapin v. Demar- 
 tini, supra, and cases cited seq.\ 
 Lovelace v. Webb, 62 Ala. 271; 
 Witczinski v. Everman, 51 Miss. 841. 
 
 In Boswell v. Goodwin, 31 Conn. 
 74, 81 Am. Dec. 169; it is held that 
 such a mortgage will be upheld 
 against subsequent mortgages as to 
 all advances made prior to the exe- 
 cution of said subsequent mort- 
 gages. 
 
 iWilson V. Russell, 13 Md. 494, 
 71 Am. Dec. 645; U. S. v. Hooe, 3 
 Cranch, 73. 
 
 2Truscott 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, 20 Am. Dec. 655. A mortgage 
 to secure future advances need not 
 disclose upon its face that it is made 
 
 to secure future advances, if the 
 amount of liability is expressly 
 limited. TuUy v. Harloe, 35 Cal. 
 302, 95 Am. Dec. 102; Tapin v. 
 Demartini, 77 Cal. 303, 11 Am. St. 
 Rep. 288, 19 Pac. 641; Lawrence v. 
 Tucker, 64 U. S. (23 How.) 14; 
 Shirras v. Craig, 7 Cr. 34. 
 
 3Robinson v. Williams, 22 N. Y. 
 380. If the mortgage discloses 
 upon its face that it is to stand as 
 security for future advances, the 
 amount of the advances to be made 
 need not be set out. It is sufficiently 
 definite to put subsequent incum- 
 brancers upon inquiry, and they 
 must ascertain the extent of the 
 lien, or suffer the consequences. 
 Lovelace v. Webb, 62 Ala. 271; 
 Witczinski v. Everman, 51 Miss. 841, 
 
 845- 
 
 ^Miller v. Lockwood, 32 N. Y. 
 293; Shirras v. Craig, 7 Cranch, 34; 
 Bevins v. Dunham, i Spears, 39; 
 TuUy V. Harloe, 35 Cal. 302, 95 Am. 
 Dec. 102; Summers v. Roos, 43 
 Miss. 749, 2 Am. Rep. 653. Contra, 
 Peacock w. Tompkins, Meigs, 317; 
 NeufEer v. Pardue, 3 Sneed, 191. 
 
 CBrinkerhoff v. Marvin, S Johns. 
 Ch. 320; Lansing v. Woodworth, i 
 Sandf. Ch. 43; Livingston v. Mc- 
 Inlay, 16 Johns. 165; Walker v.- 
 Snediker, Hoff, 145; Truscott v. 
 King, 6 N. Y. 147. Contra, Clapp 
 z/.-Ely, 10 N. J. Eq. 178; s. c. 27 N. 
 J- 555- 
 
OONSIDERXTION. 
 
 241 
 
 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 difiBcult to decide upon which party the 
 principal benefit is conferred. Services so rendered do 
 not, therefore, constitute a valuable consideration for a 
 transfer.^ A claim for board, when a child resides with 
 his parents after his majority, rests upon the same prin- 
 ciple.^ As a parent is entitled to the earnings of his minor 
 child, ^ and a husband to the earnings of his wife,* a trans- 
 services rendered under such 
 an agreement will be a sufficient 
 consideration against creditors. Kain 
 V. Ivarkin, 131 N. Y. 300, 30 N. B. 
 105; Heeren v. Kitson, 28 111. App. 
 259; Byrnes v. Clark, 57 Wis. 13, 14 
 N. W. 815. But as to future ser- 
 vices see Lehman v. Bentley, 46 N. 
 Y. St. Rep. 249, 18 N. Y. Supp. 778. 
 2Coley V. Coley, 14 N. J. Eq. 350- 
 3Swartz v. Hazlett, 8 Cal. 118; 
 Brown v. McDonald, i Hill Ch. 297; 
 Dick V. Grissom, i Freem. Ch. 
 (Miss.) 428; Danley v. Rector, 10 
 Ark. 211, 50 Am. Dec. 242. See sec- 
 tion 227 post. 
 
 ^Skillman v. Skillman, 13 N. J. 
 Eq. 403, 82 Am. Dec. 279; Belford v. 
 Crane, 16 N. J. Eq. 265, 84 Am. 
 Dec. 155; Cramer v. Reford, 17 N. 
 J. Eq. 367, 90 Am. Dec. 594; Beach 
 V. Baldwin, 14 Mo. 597; Pinkston v. 
 McLemore, 31 Ala. 308; Elliot v. 
 Bentley, 17 Wis. 591; Carpenter v. 
 Carpenter, 25 N. J. Eq. 194; Clinton 
 Manuf. Cp. 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, i MacAr- 
 thur, 480; McAnally v. O'Neal, 
 56 Ala. 299; Campbell v. Bowles, 30 
 Gratt. 652; Coleman v. Burr, 32 N. 
 Y. Supr. 293. See section 226, post. 
 
 lUpdike V. Titus, 13 N. J. Eq. 
 ,151; Hack V. Stewart, 8 Penn. 213; 
 Sanders v. Wagonseller, 19 Penn. 
 248; Van Wyck v. Seward, 18 Wend. 
 375; S. c. 6 Paige, 62; i Edw. 327; 
 Zerbe v. Miller, 16 Penn. 488; Hart 
 V. Flinn, 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; Stumbaugh v. 
 Anderson, 46 Kans. 541, 26 Pac. 
 1045; Ionia Sav. Bank v. McLean, 
 84 Mich. 625, 48 N. W. 159, Snyder 
 V. Free, 114 Mo. 360, 21 S. W. 847; 
 McAfee v. McAfee, 28 S. C. 188, 5 
 S. E. 480; Taylor v. Dawes, N. J., 13 
 Atl. 593. 
 
 But where the parties are of con- 
 tractual capacity, and the services 
 are performed under and by virtue 
 of an express agreement, the servi- 
 ces may constitute a valuable con- 
 sideration to support a transfer. 
 Donly V. Ray, Miss., 6 So. 324; Wood- 
 hull V. Whittle, 63 Mich. 575, 30 N. 
 W. 368; Glasgow V. Turner, 91 Tenn. 
 163, 18 S. W. 261; Howard v. Ry- 
 nearson, 50 Mich. 307, 15 N. W. 486. 
 
 A father may emancipate his 
 minor child and make an agree- 
 ment with him for services, and 
 
242 WHAT TRANSFERS ARE WITHIN THE STATUTE. 
 
 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.^ 
 A contract by a minor for his emancipation constitutes 
 a moral obligation, and is a suflScient consideration for a 
 promise made by him when he is of age.^ 
 
 CHAPTER X. 
 
 WHAT TRANSFERS ARE WITHIISr THE STATUTE. 
 
 § 212. Not Transfers to Debtors.^ —In order to be within 
 the prohibition of the statute, the transfer must be one 
 
 iWinchester v. Reid, 8 Jones (N. 
 C.) 377; Worth z/. York, I3lred. 206; 
 U. S. V. Mertz, 2 Watts, 406. 
 
 2Geist V. Geist, 2 Penn. 441. 
 
 3SPENDTHRIFT Trusts. — Al- 
 though this subject is not directly 
 within the scope of this work, some 
 brief mention of it seems desirable. 
 The question which this topic 
 raises is: Can one party create a 
 trust, by will or otherwise, in favor 
 of another, whereby the benefi- 
 ciary of the trust shall have the 
 income and profits of the trust 
 property during his life, while 
 neither the trust property nor the 
 income is subject either to voluntary 
 alienation by the act of the party, 
 or to involuntary alienation by the 
 act of the law, for the payment of 
 judgments and executions against 
 him? 
 
 a. Thb Principi<bs which 
 Support thb Apbirmativb ;view. 
 — The Supreme Court of the United 
 States said, in Nichols v. Eaton, 9 1 
 U. S. 716-725-726-727: "We do not 
 see, as implied in the remark of 
 
 I<ord Eldon, that the power of 
 alienation is a necessary incident 
 of a life estate in real property, or 
 that the rents and profits of real 
 property, and the dividends and 
 interest of personal property, may 
 not be enjoyed by an individual 
 without liability for his debts being 
 attached as a necessary incident to 
 such enjoyment. This doctrine 
 (referring to the opposite view) is 
 one which the English Chancery 
 Court has engrafted upon the com- 
 mon law for the benefit of creditors, 
 and is of comparatively modern 
 origin. We concede that there are 
 limitations which public policy or 
 general statutes may impose upon 
 all dispositions of property, such 
 as those designed to prevent per- 
 petuities and accumulations of real 
 estate in corporations and eccles- 
 iastical bodies. We also admit that 
 there is a just and sound policy, 
 peculiarly appropriate to the juris- 
 diction of courts of equity, to pro- 
 tect creditors against frauds upon 
 their rights, whether they be actual 
 
WHAT TRANSFERS ARE WITHIN THE STATUTE. 243 
 
 that is made by a debtor and not to a debtor. Althougli 
 
 or constructive frauds. But the 
 doctrine that the owner of property, 
 in the free exercise of his will in 
 disposing of it, cannot so dispose of 
 it but that the object of his bounty, 
 who parts with nothing in return, 
 must hold it subject to the debts 
 due his creditors, though that may 
 soon deprive him of all the benefits 
 sought to be conferred by the testa- 
 tor's affection or generosity, is one 
 which we are not prepared to an- 
 nounce as the doctrine of this court. 
 If this doctrine is to be sustained 
 at all, it must rest exclusively on 
 the rights of creditors. Whatever 
 may be the extent of those rights 
 in England, the policy of the states 
 of this Union, as expressed both by 
 their statutes and the decisions of 
 their courts, has not been carried 
 so far in that direction. It is be- 
 lieved that every state has passed 
 statutes by which a part of the 
 property of the debtor is exempt 
 from seizure on execution or other 
 process of the courts; in short is 
 not by law liable to the payment 
 of his debts. This exemption 
 varies in its nature in the different 
 states. To property so exempted 
 the creditor has no right to look, 
 and does not look, as a means of 
 payment when his debt is created, 
 and while this court has steadily 
 held that such exemption laws, 
 when first enacted, were invalid as 
 to debts then in existence, it has 
 always held that, as to contracts 
 made thereafter, the exemptions 
 were valid. This distinction is well 
 founded in the sound and unan- 
 swerable reason that the creditor is 
 neither defrauded nor injured by 
 the application of the law to his 
 case, as he knows, when he parts 
 with the consideration of his debt, 
 that the property so exempted can 
 
 never be made liable to its payment. 
 Nothing is withdrawn from this 
 liability which was ever subject to 
 it, or to which he had any right to 
 look for its discharge in payment. 
 The analogy of this principle to the 
 devise of the income from real and 
 personal property for life seems 
 perfect. In this country all wills 
 or other instruments creating such 
 trust estates are recorded in public 
 offices where they may be inspected 
 by everyone, and the law in such 
 cases imputes notice to all persons 
 concerned of all the facts which 
 they might know by the inspection. 
 When, therefore, it appears, by the 
 record of a will, that the devisee 
 holds this life estate or income, 
 dividends or rents, of real or per- 
 sonal property, to the exclusion of 
 the alienee or creditor, the latter 
 knows that, in creating a debt with 
 such person, he has no right to 
 look to that income as a means of 
 discharging it. He is neither mis- 
 led nor defrauded when the object 
 of the testator is carried out by ex- 
 cluding him from any benefit in 
 such a devise. Nor do we see any 
 reason, in the recognized nature 
 and tenure of property and its 
 transfer by law, why a testator who 
 gives, who gives without any pecu- 
 niary return, who gets nothing of 
 property value from the donee, 
 cannot attach to that gift the inci- 
 dent of continued use, of uninter- 
 rupted benefit of the gift, during 
 the lifetime of the donee. Why a 
 parent, or one who loves another, 
 and wishes to use his own property 
 in securing the object of his affect- 
 ion, as far as property can do it, 
 from the ills of life, the vicissitudes 
 of misfortune, or even his own 
 improvidence or incapacity for self- 
 protection, should not be permitted 
 
244 WHAT TRANSFERS ARE WITHIN THE STATUTE. 
 
 a person is insolvent, others may make any contract with 
 
 to do so, is not readily perceived." 
 Supporting this view see Conger 
 V. Lowe, 124 Ind. 371, 9 L. R. A. 165, 
 24 N. E. 889; Smith V. Towers, 69 
 Md. 77, 85, 100, 102, 9 Am. St. Rep. 
 398, 14 Atl. 497, 15 Atl. 92; Roberts 
 V. Stevens, 84 Me. 335, 17 L. R. A. 
 266, 24 Atl. 873; Broadway National 
 Bank v. Adams, 133 Mass. 170, 43 
 Am. Rep. 504; Baker v. Brown, 146 
 Mass. 369, 5 N. Eng. Rep. 904, 15 
 N. E. 783; Sears v. Choate, 146 
 Mass. 395, 398, 5 N. Eng. Rep. 904, 
 15 N. E. 786; Maynard v. Cleaves, 
 149 Mass. 307, 308, 21 N. E. 376; 
 Slattery v. Wason, 151 Mass. 266, 7 
 Iv. R. A. 393, 21 Am. St. Rep. 448, 
 23 N. E. 843; Ivampert v. Haydel, 
 96 Mo. 439, 451, 2 L. R. A. 113, 9 
 Am. St. Rep. 358, 9 S. W. 780, ex- 
 plaining and limiting Mcllvaine v. 
 Smith, 42 Mo. 45, 97 Am. Dec. 295; 
 Ghormley v. Smith, 139 Penn. St. 
 584, 23 Am. St. Rep. 215, 11 L. R. 
 A. 565, 21 Atl. 13s; Wales v. Bow- 
 dish, 61 Vt. 23, 4 L. R. A. 819, 17 
 Atl. 1000; Garland v. Garland, 87 
 Va. 758, 24 Am. St. Rep. 682, 13 S. 
 E. 478. 
 
 b. The Principles Supporting 
 The Negative View.— "There 
 is no doubt that property 
 may be given to a man until he 
 shall become bankrupt. It is quite 
 clear, generally speaking, that if 
 property is given to a man for his 
 life, the donor cannot take away 
 the incidents of a life estate." 
 I/Ord Eldon, in Brandon v. Robin- 
 son, 18 Vesey Jr., 429-434; Kennedy 
 V. Nunan, 52 Cal. 326; Mebane v. 
 Mebane, 4 Ired. Eq. 181, 44 Am. 
 ])ec. 102; Pace v. Pace, 75 N. C. 119; 
 Heath v. Bishop, 4 Rich. Eq. 46, 55 
 Am. Dec. 654; Tillinghast v. Brad- 
 ford, 5 R. I. 205. In the last case 
 the court says: 
 
 "It is quite clear that it was the 
 
 intention of the testator to make an 
 alimentary provisioB for his son 
 during his life which should give 
 him all the advantages of an estate 
 in fee without the legal incidents 
 of such an estate — alienability and 
 subjectiveness to the payment of 
 the son's debts. Such restraints, 
 however, are so opposed to the 
 nature of property, and, so far as 
 subjectiveness to debts is con- 
 cerned, to the honest policy of the 
 law, as to be held void, unless in- 
 deed, which is not the case here, in 
 the event of its being attempted to 
 be aliened or seized for debts, it is 
 given over by the testator to some 
 one else. This has been the settled 
 doctrine of the Court of Chancery, 
 at least since Brandon B. Robinson, 
 (supra), and in application to such 
 a case as this is so honest and just 
 that we would not change it if we 
 could. Certainly no man should 
 have an estate to live on, but not an 
 estate to pay his debts with. Cer- 
 tainly property valuable for the 
 purposes of pleasure or profit 
 should be also amenable to the de- 
 mands of justice." 
 
 See also Wait on Fraudulent 
 Conveyances, chapter 23, support- 
 ing the negative view. 
 
 t. Modifications OF THE Rule. 
 There is no doubt that property 
 may be given to a devisee with re- 
 mainder over to some one else 
 upon his attempt to alienate it, or 
 his bankruptcy, or the attempt of 
 his creditors to seize it for debts. 
 Tillinghast v. Bradford, Brandon v. 
 Robinson, and other cases cited, 
 supra. 
 
 And in England, where the 
 negative view obtains, a devise to a 
 trustee where the beneficiary has 
 no right to demand any definite 
 amount but the will merely con- 
 
WHAT TRANSFERS ARE WITHIN THE STATUTE. 
 
 245 
 
 him wMch is not otherwise prohibited by law. They may 
 place goods in his hands to sell,^ or leave them in his pos- 
 session^ or allow him the profits arising from sales made 
 by him,* even though he is to sell in his own name,* or 
 deliver articles to him upon condition that the title shall 
 not vest in him until he shall have paid all the purchase- 
 money,* or advance money to a mechanic under a stipula- 
 tion for an interest in the article to be manufactured by 
 
 tains a direction to the trustee, at 
 his discretion, to pay certain sums 
 to the beneficiary, will not be con- 
 strued to render the property liable 
 for the beneficiary's debts. Twopen- 
 ny V. Peyton, lo Sim. 487; Godden 
 V. Crowhurst, 10 Sim. 642. 
 
 d. Summary. — The weight of 
 principle and of American authority 
 seems to be in favor of the affirma- 
 tive. American tenures are allodial, 
 though the nomenclature is feudal. 
 The tenures being allodial, there 
 seems to be no good reason why 
 a giver may not attach such condi- 
 tions as he pleases to the enjoyment 
 of his gift. Lord Eldon's dictum 
 in Brandon v. Robinson, followed 
 in the American cases which sup- 
 port the negative view, is based 
 upon the feudal idea that every 
 estate is held of the lord of the fee, 
 and comes to the tenant with cer- 
 tain incidents growing out of the 
 nature of feuds, and that these 
 incidents, not being created by the 
 tenant but by the will of the lord 
 of the fee, cannot be dispensed 
 with by the will of the tenant. 
 But if the tenures be regarded as 
 allodial I think this reasoning will 
 not hold. 
 
 The true ground upon which 
 these trusts should be attacked 
 seems to be that of policy, and 
 questions of policy are not legiti- 
 mate subjects for judicial decision. 
 Creditors should seek relief from 
 legislatures — not courts. 
 
 iHoward v. Sheldon, 11 Paige, 
 558; Blood V. Palmer, 11 Me. 414; 
 Robinson v. Chapline, 9 Iowa, 91; 
 McClune v. Cain, 3 Abb. Ap. 76; 
 Dreyer v. Durand, 80 111. 561. 
 
 SHill V. Hill, I Dev. & Bat. 336; 
 Anderson v.. Biddle, 10 Mo. 23; 
 Norris v. Bradford, 4 Ala. 203. 
 
 SPatten v. Clark, 22 Mass. 4, 
 16 Am. Dec. 365; McCuUough v. 
 Porter, 4 W. & S. I77,!39 Am. Dec. 68. 
 
 4Blood V. Palmer, 11 Me. 414; 
 Merrill v. Rinker, I Bald. 528. 
 
 6Esty V. Aldrich, 46 N. H. 127; 
 Forbes v. Marsh, 15 Conn. 384; Mc- 
 Farland 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. Har- 
 ris, 1 Bailey, 563; Baylor v. 
 Smithers' Heirs, I Litt. 105; Bicker- 
 staff V. Doub, 19 Cal. 109, 79 Am. 
 Dec. 204; Chaffee v. Sherman, 26 
 Vt. 237; Paris v. Vail, 18 Vt. 277; 
 Ayer v. Bartlett, 23 Mass. 71; 
 Rogers' Locomotive Works «. 
 Lewis, 4 Dillon, 158; Blackwell v. 
 Walker, 5 Fed. Rep. 419. Contra, 
 Rose V. Story, i Penn. 190, 44 Am. 
 Dec. 121; Haak v. Linderman, 64 
 Penn. 499, 3 Am. Rep. 612; Becker 
 V. Smith, 59 Penn. 469; Waldron v. 
 Haupt, 52 Penn. 408; Lehigh Co. v. 
 Field, 8 W. & S. 232; Ketchum v.- 
 Watson, 24 111. 592; Stiles v. Whit- 
 aker, i Phila. 271; Heppe v. Speak- 
 man, 3 Brews. 548; s. c. 7 Phila. 117; 
 Henkels v. Brown, 4 Phila. 299. See 
 section 138 ante, and notes. 
 
246 WHAT TRANSFERS ARE WITHIN THE STATUTE. 
 
 him,^ or purchase articles to be subsequently manufac- 
 tured,^ or employ a mechanic with wages varying accord- 
 ing to the profits.^ Whenever property is thus placed in 
 the hands of an insolvent debtor, it is always a question 
 whether or not the form of the transaction is not merely 
 colorable.* If there is in fact a sale, ^ or a gift,^ the 
 property will be liable to his debts. The title will generally 
 be considered to be vested in him when the property is 
 delivered to him for consumption, or to be dealt with in any 
 way inconsistent with the ownership of the grantor, or in a 
 manner that would necessarily destroy the grantor's lien 
 or right of property.^ When an agent exceeds his authority, 
 and purchases goods in the name of his principal as a 
 means of covering them from his creditors, they are liable 
 to execution and sale for his debts.® A devise with a secret 
 trust to hold for the debtor is not within the statute.® 
 
 § 213. Payments to a Debtor. — A payment of a money to a 
 debtor is not within the statute, even though it is made 
 for the purpose of avoiding an attachment.^" 
 
 § 314. 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- 
 
 iBeaumont v. Crane, 14 Mass. SMerrill v. Rinker, i Bald. 528; 
 
 400; Frost V. Willard, 9 Barb. 440; Strong v. Taylor, 2 Hill, 326; 
 
 Glover v. Allen, 23 Mass. 200; Cal- Wheeler v. Konst, 46 Wis. 398. 
 kins V. l/ockwood, 16 Conn. 276, 41 6Norris v. Bradford, 4 Ala. 203; 
 
 Am. Dec. 143; Macomber v. Parker, Fitzhugh v. Anderson, 2 H. & M. 
 
 30 Mass. 175; s. u. 31 Mass. 497; 289, 3 Am. Dec. 625; Ford z;. Aikin, 
 
 Becker v. Smith, 59 Penn. 469; 4 Rich. 121; McDermott z*. Barnum, 
 
 King V. Humphreys, 10 Penn. 217. 16 Mo. 114; s. c. 19 Mo. 204; vide 
 
 sveazie v. Holmes, 40 Me. 69; Hollowell v. Skinner, 4 Ired. 165, 
 
 Bartlett v. Blake, 37 Me. 124, 58 40 Am. Dec. 431. 
 Am. Dec. 775; vide Jenkins v. 'Ludden e. Hazen, 31 Barb. 650; 
 
 Eichelberger, 4 Watts, 121, 28 Am.' Dick v. Cooper, 24 Penn. 217; Heitz- 
 
 Dec. 691. man v. Divil, 11 Penn. 264. 
 
 SFaulkner v. Waters, 28 Mass. swhite v. Cooper, 3 Penn. 130. 
 
 473- 9M'Kee v, Jones, 6 Penn. 425. 
 
 4Haynes v. I^edyard, 33 Mich. lOSimpson v. Dall, 3 Wall. 460; 
 
 319- Fletcher v. Pillsbury, 35 Vt. 16. 
 
"WHAT TRANSFERS ARE WITHIN THE STATUTE. 247 
 
 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, 
 derive any assistance from the act in respect to the fraudu^ 
 lent 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 
 the claims of the creditors of her intended husband is not 
 fraudulent as against them.^ • A term of years which 
 belongs to the debtor's wife as administratrix is not liable 
 for his debts, and a transfer of it is not within the statute 
 as against his creditors.^ But if a feme sole, being in debt, 
 conveys her property in trust for her benefit and then 
 marries a person who becomes a bankrupt, her property, 
 so far as she takes a separate estate under the trust, is 
 liable to satisfy her debts. Although the discharge of 
 her 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.* 
 
 § 215. £ind of Property.* — In respect to the kind of prop- 
 erty which may be the subject of a fraudulent transfer, the 
 
 iLand v. Jeffries, 5 Rand. 211, 599; been some doubt of the status of a 
 
 Andrews v. Jones, 10 Ala. 400; Prior life insurance policy with regard to 
 
 V. Kinney, 6 Munf. 510J Comm. v. the rights of creditors. Upon this 
 
 Fletcher, 6 Bush. 171. point the practitioner should con- 
 
 2Ridler v. Punter, Cro. Eliz. 291. suit his local statutes and anthori- 
 
 3Chubb V. Stretch, L. R. 9 Eq. ties. Some general principles are 
 
 555; Briscoe v. Kennedy, i Brock. discussed in this note. In Eng- 
 
 17, note; Miles v. Williams, i P. land, it was at first said by Lord 
 
 Wms. 249; Hamlin v. Bridge, 24 Me. Manners, in Grogan v. Cooke, 2 
 
 14s; Dickson v. Miller, 19 Miss. 594, Ball and B. 233, that life insurance 
 
 49 Am. Dec. 71; vide Vanderhey- policies were not within the statute, 
 
 den V. Mallory, i N. Y. 452; s. c. 3 but they are now held to be securi- 
 
 Barb. Ch. 9. ties for money under the statute i 
 
 *KiND OF Property. and 2 Vict., c. no, sec. 12. Law v. 
 
 a. Life Insurance. — There has London Policy Co., i K. and J. 223; 
 
248 WHAT TRANSFERS ARK WITHIN THE STATUTE. 
 
 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 
 
 Robson z). McCreight, 25 Beav. 272; 
 Stokoe V. Cowan, 29 Beav. 637. As 
 such, they are within the statute of 
 13 Eliz. c. 5. Stokoe 'v. Cowan, 
 supra; Jenkyn v. Vaughan, 3 Drew. 
 419; Skarf V. Soulby, i Mac. and G. 
 364; Penhall v. Elwin, i Sm. and 
 Giff. 267; Freeman v. Pope, Iv. R. 9 
 Eq. 206, L. R. 5 Ch. 538; Taylor v. 
 Coenen, i Ch. D. 636. 
 
 The rule enunciated by the 
 Supreme Court of the United States 
 in the case of Washington Central 
 Bajik V. Hume, 128 U. S. 195, 
 9 S. Ct. 31, is, that in the absence 
 of statute, the proceeds of a life 
 insurance policy, made payable to 
 the estate of the assured, and by 
 • ■ him assigned to his wife and child- 
 ren, are subject to the demands of 
 creditors; but the proceeds of a 
 policy made directly payable to the 
 wife and children of an insolvent 
 debtor, though the policy be kept 
 up by him, are not liable to the de- 
 mands of the insolvent's creditors. 
 
 See Goodrich v. Treat, 3 Colo. 
 408; Elliott's Appeal, 50 Pa. St. 75, 
 88 Am. Dec. 525; Pence v. Make- 
 peace, 65 Ind. 345; Stigler v. Stigler, 
 77 Va. 163; Woodworth v. Sweet, 51 
 N. Y. 8; Syracuse Chilled Plow Co. 
 V. Wing, 85 N. Y. 421; Hyde v. 
 Powell, 47 Mich. 156, 10 N. W. 181; 
 Smith V. Seiberling, 35 Fed. 677; 
 Anderson's Appeal, 85 Pa. St. 202; 
 McCutcheon's Appeal, 99 Pa. St. 
 133; Thompson v. Cundifi, 11 Bush 
 567; Hise V. Hartford Ivife Ins. Co. 
 90 Ky. 101, 29 Am. St. Rep. 358; 
 .^tna Nat. Bank v. Manhattan Life 
 Ins. C. 24 Fed. 769. 
 
 But in Am. Law Review, Vol. 
 XXV, page 185, the decision in 
 Washington Central Bank v. Hume, 
 
 supra, is criticised- by Samuel 
 Williston, Esq., who takes the pos- 
 ition that, as far as creditors are 
 concerned, the distinction between 
 a policy made payable to the 
 assured's estate and by him assigned 
 to his wife or children, and a policy 
 made directly payable to the wife 
 and children, is not a well founded 
 distinction; and that the proceeds 
 of either policy may be subjected 
 to the claims of creditors. 
 
 This view is supported by Fried- 
 man V. Fennell, 94 Ala. 570, 10 So. 
 649; and Fearn v. Ward, 80 Ala. 
 555, 561, 564, where it is held that 
 the beneficiary of a life insurance 
 policy, when not protected by the 
 provisions of a statute, will be re- 
 garded as a volunteer and as "a 
 trustee of the investment for the 
 benefit of the creditors of the don- 
 or." But if the policy is intended 
 as security for indebtedness the 
 beneficiary will be protected. 
 
 And in the case of Merchants and 
 Miners' Transportation Company v. 
 Borland, 31 Atl. 272, decided March 
 8, 1895, the Supreme Court of New 
 Jersey repudiates the doctrine enun- 
 ciated by the United States Su- 
 preme Court, quoting with approval 
 from Mr. Williston's article, and 
 holding that payments made by a 
 debtor on an insurance policy on 
 his own life for the benefit of his 
 wife and child are essentially gifts 
 to the beneficiary and are conclus- 
 ively fraudulent as against creditors 
 existing at the time of such pay- 
 ments. 
 
 The court, in the course of the 
 opinion, said: "There is no mys- 
 tery or charm about life insurance. 
 It is not a means of creating wealth. 
 
"WHAT TRANSFERS ARE WITHIN THE STATUTE. 
 
 249' 
 
 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- 
 
 nor yet a contract of mere indem- 
 nity, as is that of fire and marine 
 insurance. It is, in its most usual 
 form, simply a mode of putting by 
 
 money for savings." 
 
 . . . "The real business of an in- 
 surance company, as distinguished 
 from that of any other investment 
 company or ordinary savings bank, 
 is to collect overpayments from 
 those who live beyond the average 
 period, the long livers, and pay 
 their proceeds to those who do not 
 live the average period, the short 
 livers. This distinction, however, 
 does not alter, in legal contempla- 
 tion, the intrinsic character of the 
 transaction between insurer and as- 
 sured, which is,, that of paying 
 money to-day in expectation of its 
 repayment at a future day, either 
 to the party paying it, or such 
 other person as he or she 
 may name. There is, and can 
 be in law, no difference be- 
 tween the payment by a husband 
 of a stated sum of money, at stated 
 periods, to an insurance company, 
 upon the promise to pay a certain 
 sum at the death of the payor to 
 his wife, and the deposit by the 
 husband of a like stated sum, at 
 like stated periods, in a savings 
 bank to the credit of his wife. Both 
 are gifts to the wife and the money 
 afterwards paid by the savings bank 
 or insurance company, as the case 
 may be, to the wife or her personal 
 representatives, is nothing more 
 than a payment to her of the 
 money previously paid to it by the 
 husband, with its earnings and in- 
 crease.'' "The 
 
 great weight of authority holds 
 that payments on account of a life 
 
 policy for the benefit of another 
 must be considered in fraud of 
 creditors, (citing) Schondler v. 
 Ware, i Camp. 487; Scarf v. Soulby, 
 1 Macn. and G., 364; Jenkyn v. 
 Vaughn, 3 Drew. 419, 2 Jur. (N. S.) 
 109, 25 L. J. Ch. 338; Stokoe v. 
 Cowan, 29 Beav. 637, 7 Jur. (N. S.) 
 901, 30 L. J. Ch. 882; Freeman v. 
 Pope, I,. R. 9 Eq. 206, 5 Ch. App. 
 536; Taylor v. Coenen, i Ch. Div> 
 636. The foregoing were all cases 
 of policies taken out in the name 
 and for the benefit of the party 
 whose life was assured, and by him 
 assigned to the beneficiary. But I 
 am unable to perceive any difference 
 between such a case and that of a 
 policy taken out in the first instance 
 in the name and for the benefit of 
 a third party." 
 
 In Johnson v. Alexander, 125 Ind. 
 575 > 25 N. E. 706, it seems that the 
 court holds that creditors cannot 
 reach the proceeds of the policy 
 whether it be payable to the wife 
 directly or to the husband's estate 
 and assigned by him to the wife. 
 See also The Succession of Hear- 
 ing, 26 La. Ann. 326 (where the civil 
 law prevails and the statute of Eliza- 
 beth is not in force). 
 
 The creditor can enforce repay- 
 ment of the premiums out of the 
 proceeds of the policy. Stigler v. 
 Stigler, 77 Va. 163, 170; contra,. 
 Washington Central Bank v. Hume, 
 supra. 
 
 The policy and the money to 
 become due under it belong to the 
 beneficiary the moment the policy 
 is issued. Washington Central Bank 
 V. Hume, supra; Bliss on Life 
 Insurance, 2nd. Ed. 517; Glanz v. 
 Gloeckler, 10 111. App. 484, 104 IlL 
 
250 WHAT TRANSFERS ARE WITHIN THE STATUTE. 
 
 enumeration. The source from which the debtor derived 
 the property is wholly immaterial.^ If a transfer is fraud- 
 ulent, the grantee cannot retain the property on the ground 
 that it is of no value.^ 
 
 § 216. 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- 
 
 573; Wilburn v. Wilburn, 83 Ind. 
 .55; Ricker v. Insurance Co., 27 
 Minn. 193, 6 N. W. 771; Charter 
 Oak Ivife Insurance Co. v. Brant, 47 
 Mo. 419; Gould V. Emerson, 99 
 Mass. 154, 96 Am. Dec. 720; Knick- 
 •erbocker Life Insurance Co. v. 
 Weitz, 99 Mass. 157. 
 
 An endowment policy wliicli pro- 
 vides tliat a debtor shall receive a 
 ■cash sum at the end of a certain 
 period is fraudulent, as permitting 
 -the debtor to accumulate property 
 in hindrance and delay of creditors. 
 Tompkins v. Levy, 87 Ala. 263 ,268 
 ■6 So. 346, 13 Am. St. Rep. 31; Mur- 
 lay V. McNealy, 86 Ala. 234, 5 So. 
 565; Woodall V. Kelly, 85 Ala. 368, 5 
 So. 164; Benedict v. Renfro, 75 Ala. 
 121, 51 Amer. Rep. 429. 
 
 If a creditor insures the life of 
 liis debtor he is thereby indemnified 
 against the loss of his debt by the 
 death of the debtor before payment, 
 yet if the creditor keeps up the 
 premiums and his debt is paid be- 
 fore the debtor's death he may still 
 recover upon the contract, which 
 -was valid when made and which 
 the insurance company is bound to 
 pay according to its terms ; but if 
 the debtor obtains the insurance 
 Tlpon the insurable interest of the 
 ■creditor, and pays the premiums 
 himself, and the debt is extin- 
 guished before the insurance falls 
 in, then the proceeds go to the 
 €state of the debtor. Knox v. 
 Turner, L. R. 9 Eq. 155- 
 
 Where a policy is made payable 
 to a wife and she dies before the 
 husband, the proceeds of the policy 
 are payable to the personal repre- 
 sentatives of the husband, and are 
 liable to the demands of creditors. 
 Washington Central Bank v. Hume, 
 128 U. S. 195-205, 9 S. Ct. 41; Con- 
 tinental Life Ins. Co. v. Palmer, 42 
 Conn. 60, 64; Anderson's Estate, 
 Hay and Kerr's Appeal, 85 Pa. St. 
 202; Tompkins v. Levy, 87 Ala. 263, 
 268, 6 So. 346, 13 Am. St. Rep. 31. 
 
 And a conveyance of an expect- 
 ancy by a son in a living father's 
 estate will be set aside in equity as 
 against existing creditors. Read v. 
 Mosby, 87 Tenn. 759, 11 S. W. 940. 
 
 But it seems that such a transfer 
 could not be reached under the 
 statute. 
 
 b. Seat in Stock Exchange.— 
 A seat in a stock exchange is prop- 
 erty liable for debts. Hyde v. 
 Woods, 94 U. S. 523; Rittenhouse 
 V. Baggett, 4 Abb. N. C. 67. 
 
 It cannot be reached without the 
 intervention of equity. Eliot v. 
 Merchant's Exchange, 28 Alb. L. J. 
 512; Thompson v. Adams, 93 Pa. St. 
 55; Pancoast v. Gowan, 93 Pa. St. 66. 
 
 But see Barclay v. Smith, 28 Alb. 
 L. J. 175; In re Sutherland, 6 Biss. 
 
 526- 
 
 IBank v. Ballard, 12 Rich. 259. 
 
 SGarrison v. Monagan, 33 Penn. 
 232; vide Hanly v. Logan, i Duvall 
 242. 
 
WHAT TRANSFERS ARE WITHIN THE STATUTE. 251 
 
 taments, and embrace things in action as well as in posses- 
 sion,' even tliougli the choses in action were unknown at 
 the time of the passage of the statute.^ But as stock,^ 
 choses in action,* and money,^ 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 io inves- 
 tigation on the ground of fraud.® Even independently of 
 such statutory provisions the better doctrine is that a 
 court of equity, in aid of an execution at law, may, for 
 the purpose of suppressing fraud and enforcing justice, 
 reach property which is not liable to legal process at law. 
 Equity 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- 
 fore, affords relief for the purpose of enforcing the pay- 
 ment of just debts.' 
 
 iPinkerton v. Manchester R. R. no; s. c. 26 L. J. Ch. 105; Magaw- 
 
 Co., 42 N. H. 424; Elliott's Appeal, ley's Trust, 5 De G. & S. i; Freeman 
 
 50 Penn. 75, 88 Am. Dec. 525. v. Pope, L. R. 5 Ch. A. 538; s. c. I/. 
 
 ^Elliott's Appeal, 50 Penn. 75. R. 9 Eq. 206; Stokes v. Coffey, 8 
 
 3Hom z/. Horn, Ambl. 79; Dun- Bush, 533; Elliott's Appeal, 50 Penn. 
 
 das V. Dutens, i Ves. Jr. 196; s. c. 2 75; Scott v. Indianapolis Wagon 
 
 Cox, 23s; Rider v. Kidder, 10 Ves. Works, 48 Ind. 75. 
 360; s c. 12 Ves. 202; 13 Ves. 123. ^Taylor i^. Jones, 2 Atk. 600; 
 
 4Sims V. Thomas, 12 Ad. & E. Partridge v. Gopp, i Eden, 163; 
 
 536; s. c. 4 P. & D. 233; 9 h. J. (N. s. c. Amb. 596; Bayard v. Hoffman, 
 
 S.) Q. B. 399; Grogan v. Cooke, 2 4 Johns. Ch. 450; Horn v. Horn, 
 
 Ball. & B. 233; Norcnt w. Dodd, i Ambl. 79; Smithierz/. Lewis, iVern. 
 
 Or. & Ph. 100. 398; Hopkirk v. Randolph, 2 Brock. 
 
 BDuffin V. Furness, Sel. Cas. Ch. 132; Doughten v. Gray, 10 N. J. Eq. 
 
 77. 323; Law V. Payson, 32 Me. 521; 
 
 BPinkerton v. Manchester R. R. Bean v. Smith, 2 Mason, 252; Catch- 
 Co., 42 N. H. 424; Gaylord w. Couch, ings V. Manlove, 39 Miss. 655; 
 5 Day, 223; Warden v. Jones, 2 De Pringle v. Hodgson, 3 Ves. 617; 
 G. & J. 76; s. c. 27 L. J. Ch. 190; Planters' Bank v. Henderson, 4 
 Sims V. Thomas, 12 Ad. & E. 536; Humph. 75; Abbottz/. Tenny, 18 N. 
 s. c. 4P. & B. 233; 9 L. J. (N. S.) Q. H. 109; Wright v. Petrie, i S. & M. 
 B. 299; Stokoe V. Cowan, 29 Beav. 282; Green z/. Tantum, 19N.J. Eq. 
 637;Barrack». McCuUoch, 3K. &J. 105; s. c. 21 N. J. Eq. 364; Had- 
 
252 WHAT TRANSFERS ARE WITHIN THE STATUTE. 
 
 § 217. 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.^ 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.^ 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 
 the prejudice of his creditors.* 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.* It may be considered as settled that property 
 so purchased in the name of another is liable to the 
 
 den V. Spader, 20 Johns, 554; s. c. 5 
 Johns. Ch. 280; Tappan v. Evans, 11 
 N. H. 311; Chase z). Searles, 45 N. H. 
 511; Weed V. Pierce, 9 Cow. 722; 
 West V. Sanders, i A. K. Marsh. 
 108; Greer v. Wright, 6 Gratt. 154; 
 Harlan v. Barnes, 5 Dana, 219; Sar- 
 gent V. Salmon, 27 Me. 539; Drake 
 V. Rice, 130 Mass. 410. Contra, 
 Dundas v. Dutens,' i Ves. Jr. 196; 
 s. i;. 2 Cox, 235; Rider v. Kidder, 10 
 Ves. 360; s. c. 12 Ves. 202; 13 Ves. 
 123; Matthews v. Feaver, i 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, i Bibb. 305; Sims 
 V. Thomas, 12 Ad. & E. S36; s. c. 4 
 P. & D. 233; 9 L. J. (N. S.) Q. B. 399; 
 Norciit V. Dodd, i Cr. & Ph. 100; 
 Bickley z;. Norris, 2 Brev. 252; DufEn 
 V. Furness, Sel. Cas. Ch. 77; Cail- 
 laud z". Estwick, i Anst. 381. 
 
 But creditors cannot compel a 
 
 husband to reduce his wife's choses 
 in action to possession. Proctor v. 
 Cole, 104 Ind. 373, 4 N. E. 303- 
 
 ipletcher v. Sidley, 2 Vern. 490; 
 Glaister v. Hewer, 8 Ves. 196;^ 
 Proctor V. Warren, Sel. Cas. Ch. 78. 
 SGowing V. Rich, i Ired. 553; 
 Gardiner Bank v. Wheaton, 8 Me. 
 373; Gray v. Faris, 7 Yerg. 155. But 
 see Holmes v. Harshberger, 31 W. 
 Va. 516, 7 S. E. 452; Gear v. Shrei, 
 57 la. 666, which seem to support 
 the doctrine that such conveyances 
 are practically voluntary convey- 
 ances from the debtor to the party 
 to whom title is made, and that they 
 may be avoided under the statute. 
 STaylor v. Heriot, 4 Dessau. 227;. 
 Alston V. Rowles, 13 Fla. 117. 
 
 ^Coleman v. Cocke, 6 Rand. 618, 
 18 Am. Dec. 757; Brown v. Mc- 
 Donald, I Hill Ch. 297; Godding ». 
 Brackett, 34 Me. 27; Gray v. Faris, 7 
 Yerg. 155; Bean v. Smith, 2 Mason, 
 252. 
 
WHAT TRANSFERS ARE WITHIN THE STATUTE. 253 
 
 demands of creditors.^ As the theory of the law is that 
 the grantee holds the property as a trustee; the trust may 
 always be enforced in equity .^ "Whether the property is 
 
 ipeacock v. Monk, i Ves. Sr. 127; 
 Christy V. Courtenay, 13 Beav. 96; 
 Farrow z/. Teackle, 4 H. & J. 271; 
 Wright V. Douglass, 3 Barb. 554; 
 Taylor v. Heriot, 4 Dessau. 227; 
 Proseus v. Mclntyre, 5 Barb. 424; 
 Coleman v. Cocke, 6 Rand. 618, 18 
 Am. Dec. 757; Christ's Hospital v. 
 Budgin, 2 Vern. 683; Doyle v. 
 Sleeper, 1 Dana, 531; Bay v. Cook, 
 31 111. 336; Houghton V. Tate, 3 Y. 
 & J. 486; Whittlesey v. McMahon, 
 loXonn. 137, 26 Am. Dec. 382; Tap- 
 pan 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. 
 Bq. 13; Dewey v. Long, 25 Vt. 564; 
 Gongh 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, i 
 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. McCuUoch, 3 
 K. & J. no; s. c. 26 L. J. Ch. 105; 
 De Chyrton's Case, Dyer, 295 a; 
 Jencks V. Alexander, 11 Paige, 619; 
 Sumner z/. Sawtelle, 8 Minn. 309; 
 Huggins V. Perine, 30 Ala. 396; 
 Smith V. Parker, 41 Me. 452; Hal- 
 bert V. Grant, 4 Men. 580; Whitney 
 V. Stearns, 52 Mass. 319; Baldwin v. 
 Johnston, 8 Ark. 260; Doolittle v. 
 Bridgenan, i Iowa, 265; Smith v. 
 Duncan, 2 Pitts. L. J. 186; Spicer v. 
 Ayres, 2 N. Y. Supr. 626; Wall v. 
 Pairley, 73 N. C. 464; Johnson v. 
 May, 16 N. B. R. 425; Lockhard v. 
 
 Beckley, 10 W. Va. 87; Thyson v. 
 Foley, I D. C. App. 182; Foxz/. Peek, 
 111., 37 N. E. 873; Bowman v. Ash, 
 111., 32 N. E. 486; Eiler v. CruU, 
 112 Indiana 318, 14 N. E. 79; 
 Robinson v. Springfield Co., 21 
 Fla. 203; McAdams v. Mitchell, 
 10 Ky. L. Rep. 856, 10 S. W. 
 812; Biddinger v. Wiland, 67 
 Md. 359, 10 Atl. 202; Diggs w. Mc- 
 CuUough, 69 Md. 592, 16 Atl. 453; 
 Woltordz/. Farnham, 44Minn. 159, 
 46 N. W. 295; Rinehartz'. Long, 95 
 Mo. 396, 8 S. W. 559; Foster v. 
 Knowles, 42 N. J. Eq. 226, 7 Atl. 
 290; Stokes V. Ammerman, 27 N. Y. 
 St. Rep. 951, 7 N. Y. Supp. 733; 
 Kline v. McDonnell, 62 Hun 177, 
 16 N. Y. Supp, 649; Everett v. 
 Raby, 104 N. C. 479; Bates v. Cobb, 
 29 S. C. 395, 7 S. E. 743; Coxw. Cun- 
 ningham, 27 W. Va. 210; Martin v. 
 Warner, 34 W. Va. 182; Taylor v. 
 Miles, 19 Ore. 550, 25 Pac. 143; 
 Marshall v. Whitney, 43 Fed. 343; 
 Ramsey v. Voorhees 38 N. J. Eq. 
 282. Contra, Fletcher v. Sidley, 2 
 Vern. 490; Glaister v. Hewer, 8 
 Ves. 196; Procter v. Warren, Sel. 
 Gas. Ch. 78; Crozier v. Young, 3 
 Mon. 157. 
 
 2Patterson v. Campbell, 9 Ala. 
 933 i Gardiner Bank v. Wheaton, 8 
 Me. 373; State Bank v. Harrow, 26 
 Iowa, 426; Smith v. Parker, 41 Me. 
 452; Brown v. McDonald, i Hill Ch. 
 297; Bertrand v. Elder, 23 Ark. 494; 
 Corey f. Greene, 51 Me. 114; Mar- 
 shall V. Marshall, 2 Bush. 415; Hal- 
 bert V. Grant, 4 Mon. 580; Peay v. 
 Sublet, I Mo. 449; Newell v. Mor- 
 gan, 2 Harrjng. 225; s. c. 2 Del. Ch. 
 20; Dockray v. Mason, 48 Me. 178; 
 Bay V. Cook, 31 111. 336; Belford v. 
 Crane, 16 N. J. Eq. 265, 84 Am. Dec. 
 
254 "WHAT TRANSFERS ARE "WITHIN THE STATUTE. 
 
 also liable to an execution at law is a point upon "whicli the 
 decisions vary.^ When the fraudulent grantee takes an as- 
 signment of an outstanding mortgage, purchased with the 
 debtor's money, the legal title is in the debtor.^ 
 
 § 218. Expenditures upon Another's Land./-^f 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 
 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.^ I If a 
 
 155; Demaree z*. Driskell, 3 Blackf. 
 115; Rucker v. Abell, 8 B. Mon. 566, 
 48 Am. Dec. 406; Gordon v. Lowell, 
 21 Me. 251; McDowell v. Cochran, 
 II 111. 31; "Walcott V. Almy, 6 Mc- 
 Lean, 23; Gentry v. Harper, 2 Jones 
 Eq. 177; Kelir v. Sickler, 48 Mo. 
 96; Smith V. Hinson, 4 Heisk. 250. 
 Contra, Mill River Association v. 
 Claflin, 91 Mass. loi. 
 
 IGuthrie v. Gardner, 19 "Wend. 
 414; Bodine v. Bdwards, 10 Paige, 
 504; Arnot V. Beadle, i Hill & D. 
 181; Tevisz/. Doe, 3 Ind. 129; Pen- 
 nington V. Clifton, II Ind. 162; 
 Webster !». "Withey, 25 Me. 326; Kim- 
 mell V. McRight, 2 Penn. 38; Cut- 
 ter V. Griswold, "Walk. Ch. 437; Roe 
 V. Irwin, 32 Geo. 39; Coleman v. 
 Cocke, 6 Rand. 618; Cecil Bank v. 
 Snively, 23 Md. 253; Godding v. 
 Brackett, 34 Me. 27; Clark z/. Cham- 
 berlain, 95 Mass. 257; Wait v. Day, 
 4 Denio, 439; Hunt v. Blodgett, 17 
 111. 583; Harrington v. Herrington, 
 27 Mo. 560; Rankin v. Harper, 23 
 Mo. 579; Snow V. Paine, 114 Mass. 
 520; Peterson v. Parnum, 121 Mass. 
 476. In the following cases it has 
 been held not liable: Howe v. 
 Bishop, 44 Mass. 26; Garfield v. 
 Hatmaker, 15 N. "V. 475; Brewster 
 
 V. Power, 10 Paige, 562; Page v. 
 Goodman, 8 Ired. Eq. 16; Worth v. 
 York, 13 Ired. 206; Davis v. McKin- 
 ney, 5 Ala. 719; Davis v. Tibbetts, 
 39 Me. 279; Gray v. Paris, 7 Yerg. 
 155; Dewey v. Long, 25 "Vt. 564; 
 Gowing V. Rich, i Ired. 553; Gar- 
 rett V. Rhame, 9 Rich. 407, 67 Am. 
 Dec. 567; Jimmerson v. Duncan, 3 
 Jones (N. C.) 537; Lowf. 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 f. Fulton, 30 N.J. 430; Smith 
 V. Hinson, 4 Heisk. 250; Smith v. 
 Ingles, 2 Or. 43; Robinson v. Spring- 
 field Co., 21 Fla. 203. 
 
 In Indiana it may be reached by 
 execution. Laird v. Davidson, 124 
 Ind. 412, 25 N. E. 7. It may be 
 reached by attachment. Trumbull 
 V. Hewitt, 62 Conn. 448, 26 AtL 
 350. 
 
 2Stephens v. Sinclair, i Hill 143.. 
 
 SIsham V. Schaffer, 60 Barb. 317; 
 Lynde v. McGregor, 95 Mass."!??, 
 90 Am. Dec. 188; Athey v. Knotts, & 
 B. Mon. 24; Hoot v. Sorrell, 11 Ala. 
 386; Divine v. Steele, 10 B. Mon. 
 323; Kirby v. Bruns, 45 Mo. 234, loO' 
 Am. Dec. 376; Caswell v. Hill, 47 N- 
 
WHAT TRANSFERS ARE WITHIN THE STATUTE. 256 
 
 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 performing 
 his obligation to support his wife and family.^ But when- 
 ever the expenditures are beyond what is absolutely neces- 
 sary and proper for the shelter and maintenance of the 
 family,they may be reached by his creditors. What amounts 
 to an excessive expenditure is difficult to determine and 
 depends upon the peculiar circumstances of each case.^ If he 
 puts improvements upon her real estate which are tempor- 
 ary 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 the value of these tem- 
 
 H. 407; Rose V. Brown, 11 W. Va. skill, supra, Eilers v. Conradt, 39 
 
 122; Heck V. Fisier, 78 Ky. 643; Minn. 242, 39 N. W. 320. 
 Blair z/. Smith, 114 Ind. 114, 15 N. E. The bestowment of the labor in 
 
 817; Foster v. Knowles, 42 N. J. Eq. improving the separate estate of the 
 
 226, 7 Atl. 290; Burt V. Timmons, 29 -wife did not constitute her a debtor 
 
 W. Va. 441, 2 S. E. 480; Humphrey v. to the husband, nor can her separate 
 
 Spencer, 36W. Va. 11, 14 S. E. 410; estate be charged therewith in favor 
 
 Scott ZJ. Mead, 37 Fed. 865. of her husband's creditors. His 
 
 "Materials furnished in making personal labor is not subject to 
 erections or improvements on a compulsory sale for the payment of 
 wife's separate real estate with a debts, and as a decree in pertnnam 
 husband's own money, if he is em- cannot, in such a case, be entered 
 barrassed, will be regarded as a gift against the wife, a court of equity 
 in fraud of his creditors, who may is powerless to appropriate the 
 make her estate liable therefor." value of the property to such pur- 
 Nance V. Nance, 84 Ala. 375, 5 Am. pose." Nance v. Nance, 84 Ala. 
 St. Rep. 378, 4 So. 699. 375, 5 Am. St. Rep. 378, 4 So. 699. 
 
 Contra, Campion v. Cotton, 17 See sections 222, 223, /osi. 
 Ves. 264; Ewing v. Cantrell, Meigs, iDick v. Hamilton, i Deady, 322; 
 
 364; Webster v. Hildreth, 33 Vt. 457. Robinson v. Huffman, 15 B. Mon. 
 
 See section 225, post. 80; Shackelford v. Collier, 6 Bush. 
 
 But the lands cannot be charged 149. 
 with the value of his labor and 2Dick v. Hamilton, i Deady, 322. 
 
256 WHAT TRANSFERS ARE WITHIN THE STATUTE. 
 
 porary improvements.^ It has, however, been held that 
 improvements on the real estate of a minor can not be 
 reached.^ 
 
 § 219. 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.^ 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.^ A general power is a 
 power to appoint to whomsoever the donee pleases.' If 
 there is only a power to appoint among certain persons, 
 who are definitely described, so that the debtor can not 
 make the appointment for himself, his creditors can not 
 claim the benefit of it.^ If the power is general, it makes 
 no difference whether the appointment is by will or by 
 deed.' It also makes no difference whether it is a power 
 to charge a sum of money on land or to create a chattel 
 interest out of land.^ It has also been said that a general 
 power makes the donee equitable owner of the estate, and 
 
 IDickz/. Hamilton, I Deady, 322. 298, 41 Am. Dec. 694; Tallmadge 
 
 2Mathes v. Dobschuetz, 72 111. v. Sill, 21 Barb. 34. 
 438. BTallmadge v. Sill, 21 Barb. 34. 
 
 SMackason's Appeal, 42 Penn. BTownsend v. Windham, 2 Ves. 
 
 330, 82 Am. Dec. 517; Smith v. Sr. i. 
 
 Garey, -^ Dev. & Bat. Eq. 42; Still- 7Townsend v. Windham, 2 Ves. 
 
 well V. Mellersh, 20 I,. J. Ch. 356; Sr. i; Jenney v. Andrews, 6 Madd. 
 
 Townsend v. Windham, 2 Ves. Sr. 264; Williams v. Lomas, 16 Beav. i. 
 
 i; Lassels v. Cornwallis, 2 Vern. But in New York, under the statute 
 
 465; s. c. Free. Ch. 232; George v. of powers, the common law rule 
 
 Milbanke, 9 Ves. 189; Whittington stated in the text is practically 
 
 V. Jennings, 6 Sim. 493; Sainton v. abrogated as to appointments by 
 
 Ward, 2 Atk. 172; Pack v. Bathurst, will. See Cutting v. Cutting, 86 N. 
 
 3 Atk. 269; Thompson v. Towne, 2 Y. 537, where the whole subject is 
 
 Vern 319; s. c. Prec. Ch. 52; Tall- ably discussed in the opinion and 
 
 madge ». Sill, 21 Barb. 34; Clapp v. the briefs of counsel. 
 Ingraham, 126 Mass. 200. STownsend v. Windham, 2 Ves. 
 
 ijohnson v. Cushing, 15 N. H. Sr. i. 
 
"WHAT TRANSFERS ARE WITHIN THE STATUTE. 257 
 
 gives him such a dominion over it' as subjects it to his 
 debts.i 
 
 § 220. Exempt Property.— If a debtor has money or .prop- 
 erty which is liable to legal process, he may convert it into 
 property that is exempt.^ 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 purpose 
 of bettering his condition or providing for his family, or 
 furnishing his home, 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 prop- 
 erty are not deemed to be creditors so as to make a trans- 
 fer of it a matter of concern to them.^ If the debtor sells 
 
 IBainton v. Ward, 2 Atk. 172; 
 Ashfield V. Ashfield, 2 Vern. 287; 
 Tronghton v. Troughton, 3 Atk. 
 656; vide White v. Sansotn, 3 Atk. 
 410. 
 
 20'Donnell v. Segar, 25 Mich. 
 367; North V. Shearn, 15 Tex. 174; 
 Cipperly v. Rhodes, 53 111. 346; 
 Randall z/. 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; Meigs v. Dibble, 73 Mich, 
 loi, 40 N. W. 935. 
 
 Contra, Riddell v. Shirley, 5 Cal. 
 488; Pratt V. Burr, 5 Biss. 36; Brack- 
 ett V. Watkins, 21 Wend. 68; Rose 
 V. Sharpless, 33 Gratt. 153. 
 
 3Erb v.. Cole, 31 Ark. 554; Dan- 
 forth V. Eeattie, 43 Vt. 138; Smith v. 
 Rnmsey,33 Mich. 183; Bond v. Sey- 
 mour, I Chand. 40; s. c. 2 Finney, 
 105; Legro V. Lord, 10 Me. 161; 
 Vaughan v. Thompson, 17 111. 78; 
 Wood ». Chambers, 20 Tex. 247,^0 
 Am. Dec. 382; Cox v. Shropshire^ 
 25 Tex. 113; Smith v. Alien,. 39 Miss. 
 
 469; Martel v. Somers, 26 Tex. 551; 
 Ivishy V. Perry, 6 Bush. 515; Pike v. 
 Miles, 23 Wis. 164, 99 Am. Dec. 148; 
 Dreutzer v. Bell, 11 Wis. 114; 
 Anthony v. Wade, i Bush, no; Mor- 
 ton V. Ragan, 5 Bush. 344; Foster v. 
 McGregor, 11 Vt. 595, 34 Am. Dec. 
 713; Patten v. Smith, 4 Conn. 450; s. 
 c. 5 Conn. 196, 10 Am. Dec. 166; 
 Crummen v. Bennett, 68 N. C. 494; 
 Keyes v. Rines, 37 Vt. 260, 86 Am. 
 Dec. 707; 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; Kul- 
 age V. Schueler, 7 Mo. Ap. 250; Mc- 
 Williams v. Rogers, 56 Ala. 87; Jew- 
 ettz/. Fink, 47 Wis. 451; Smith v. 
 Schmitz, 10 Neb. 600; Hixon v. 
 George, 18 Kans. 253; Dart v. Wood- 
 house, 40 Mich. 399; Ketchum v. 
 Allen, 46 Conn. 414; Morrison v. Ab- 
 bott, 27 Minn. ii6; Ferguson v. 
 Kiimler, 27 Minn! 156; Shubert 
 \v. WinstoA, 95 Ala, , 514, 11 
 So, 200; Caldwell v. Pollock, 
 
258 WHAT TRANSFERS ARE WITHIN THE STATUTE. 
 
 his homestead, he may invest the proceeds in another 
 homestead or other property, and take the title in the name 
 of his wife.^ If he continues to occupy the homestead, a 
 conveyance thereof through another to his wife will not 
 render it liable for his debts.^ 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 en- 
 titled 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 homestead, it will 
 become liable to his creditors after such abandonment.' 
 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 property as exempt.* If a 
 homestead is exempt only conditionally while the debtor 
 occupies and owns it, then a conveyance of it with the in- 
 tent to delay, hinder, or defraud his creditors is void. 
 
 91 Ala. 357; 8 So. 546; McWilliams 
 V. Jenkins, 72 Ala. 487; Simms v. 
 Phillips, 54 Ark. 193, 15 S. W. 461; 
 Bogan V. Cleveland, 52 Ark. loi, 12 
 S. W. 159; Taylor v. Duesterberg, 
 109 Ind. 165, 9 N. E. 907; Slair v. 
 Smith, 114 Ind. 114, 15 N. E. 817; 
 (see cases cited); Griffin v. Sheley, 
 55 la. 513, 8 N. W. 343; Wilson v. 
 Taylor, 49 Kans. 774, 31 Pac. 697; 
 Freehling v. Bresnahan, 61 Mich. 
 540, 28 N. W. 531; Furman v. Tenny, 
 28 Minn. 77, 9 N. W. 172; Baldwin z». 
 O'Laughlin, 28 Minn. 544, 11 N. W. 
 77; U. P. Ry. Co. V. Smersh, 22 Neb. 
 751, 36 N. W. 139; Ketchin v. Mc- 
 Carley, 26 S. C. i, 11 S. E. 1099; 
 Connor v. Hawkins, 66 Tex. 639, 2 
 S. W. 520; King V. Harter, 70 Tex. 
 579, 8 S. W. 308; Chicago Coffin 
 Co. V. Harris, 70 Wis. 282, 35 N. W. 
 733; Shawano Co. Bank v. Koeppen, 
 78 Wis. 533, 47 N. W. 723. 
 
 Under the Missouri statute, the 
 right of homestead exemption only 
 
 vests during the life of the wife or 
 the minority of the children, " the 
 result being that a homestead is 
 now subject to levy and sale for 
 debts, and that a creditor has rights 
 of which he can be deprived by its 
 fraudulent sale." Kirksville Sav. 
 Bank v. Spangler, 59 Mo. App. 172, 
 177; SchaefEer v. Beldsmier, 107 Mo. 
 314, 17 S. W. 797. 
 
 iMonroe v. May, 9 Kans. 466; 
 Derby v. Weyrich, 8 Neb. 174. 
 
 And when property is purchased 
 with exempt earnings creditors 
 have no claim on such property. 
 Robb V. Brewer, 60 la. 539, 15 N. 
 W. 420. 
 
 SDreutzer v. Bell, 1.1 Wis. 114; 
 Pike V. Miles, 23 Wis. 164. 
 
 SCox V. Shropshire, 25 Tex. 113; 
 vidt Delashmut v. Prau, 44 Iowa, 
 613. 
 
 ♦Rogers v. McCauley, 22 Minn. 
 384. 
 
WHAT TRANSFERS ARE "WITHIN THE STATUTE. 259 
 
 and the property is liable to them.^ 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 credit- 
 ors if he changes his mind after having purchased them 
 and sells them with the intent to delay, hinder or defraud 
 his creditors.^ 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 another is a waiver of his right to the ex- 
 emption.* 
 
 § 221. Pre-emption Right.— 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 trans- 
 fers 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.* 
 
 § 222. Debtor's Labor. — Creditors have no power to com- 
 pel 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 him- 
 self and family, from the proceeds of his labor. He is 
 under no legal or moral obligation to appropriate these to 
 
 ipiper V. Johnston, I2 Minn. 6o; Nat. Bank v. North, 2 S. D. 480, 51 
 
 Chambers v. Sallie, 29 Ark. 407. N. W. 96. 
 
 But the general rule is that in con- SRayner v. Whicher, 88 Mass. 
 
 veyances of exempt property fraud- 292; Stevenson v. White, 87 Mass. 
 
 ulent intent is immaterial. Pollock 148. 
 
 V. McNiel, 100 Ala. 203, 13 So. 937; SDiffenderfer v. Fisher, 3 Grant, 
 
 Bresnahan v. Nugent, 92 Mich. 76, 303; Gilleland v. Rhoads, 34 Penn. 
 
 52 N. W. 735; Bloedorn v. Jewell, 187. 
 34 Neb. 649, 52 N. W. 367; I*irst IMoore v. Besse, 43 Cal. 511. 
 
260 
 
 WHAT TRANSFERS ARE WITHIN THE STATUTE. 
 
 the benefit of his creditors, and leave himself and his 
 family to suffer hunger and want.^ Consequently he has 
 the right to enter into a contract to labor for another in 
 consideration of the support and maintenance of himself 
 and family .2 If an attachment is laid in the hands of his 
 employer after a contract has been partially performed, he 
 may refuse to complete it, and a new arrangement may be 
 made for the purpose of protecting his subsequent earnings 
 from the effect of such attachment.^ He is not permitted, 
 however, to make an assignment of his future earnings 
 with the' intent to delay, hinder or defraud his creditors.* 
 
 § 223. 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 
 
 ^Leslie V. Joyner, z, Head, 514; 
 Griffin V. Cranston, i Bosw. 281; 
 s. c. 10 Bosw. i; Holdship v. Patter- 
 son, 7 Watts, 547; Teeter v. Wil- 
 liams, 3 B. Mon. 562; Abbey v. 
 Deyo, 43 N. Y. 343; s. c. 44 Barb. 
 374; Rush V. Vought, 55 Penn. 437; 
 Comm. V. Fletcher, 6 Bush. 171; 
 Webster v. Hildreth, 33 Vt. 457; 
 Cent. 1i. J., Apl. 6, 1894. A debtor's 
 time, talents and industry are at 
 his own disposal, and his creditors 
 have no claim thereon. Mayers v. 
 Kaiser, 85 Wis. 394, 39 Am. St. Rep. 
 849; 21 Iv. R. A. 623; Sexton v. Mar- 
 tin, 37 111. App. 538; Osborne v. 
 Wilkes, 108 N. C. 651, 13 S. E. 285; 
 Miller v. Peck, 18 W. Va. 75. 
 
 2I,eslie v. Joyner, 2 Head, 514; 
 Tripp V. Childs, 14 Barb. 85; Hold- 
 ship V. Patterson, 7 Watts, 547; 
 Hoot V. Sorrell, 11 Ala. 386; As- 
 hurst V. Given, 5 W. & S. 323; 
 Hodges V. Cobb, 8 Rich. 50; Whee- 
 don v. Champlin, 59 Barb. 61. 
 
 3Teeter v. Williams, 3 B. Mon. 
 
 562, 39 Am. Dec. 485. Wages partly 
 earned but not yet due are not sub- 
 ject to the claims of creditors. 
 Daily v. Jordan, 2 Cush. 390; Central 
 Bank of Canada v. Ellis, 20 Ont. 
 App. 364; Norton v. Soule, 75 Me. 
 385; Fosters. Singer, 69 Wis. 392, 
 34 N. W. 395. 
 
 And salary not yet earned cannot 
 be reached by creditors. Browning 
 V. Bettes, 8 Paige, 568. 
 
 *Gragg V. Martin, 94 Mass. 498, 
 90 Am. Dec. 164. A contract to pay 
 wages in advance is not fraudulent. 
 Archer v. People's Sav. Bank, 88 
 Ala. 249, sub nam. Archer v. Whit- 
 ^^S> 7 So. 53. And wages earned 
 under such a contract cannot be 
 reached by creditors. Denver, T. and 
 P. W. Ry. V. Smeeton, 2 Colo. App. 
 126; Alexander v. Pollock, 72 Ala. 
 137; VauVleet v. Stratton, 91 Tenn. 
 473> 19 S. W. 428. In order to avoid 
 such a contract a fraudulent intent 
 must be proved. Reinhart v. Em- 
 pire Soap Co., 33 Mo. App. 24. 
 
WHAT TRANSFERS ARE WITHIN THE STATUTE. 261 
 
 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 
 shall be protected for the benefit of himself or his faniily 
 against the demands of creditors.^ 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.^ 
 
 • 
 
 § 224. Basiness in Wife's Name.— According to the prin- 
 ciples 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.^ Hence if she carries on business in her own name, 
 
 ^Hamilton v. Zimmerman, 5 Abbey f. Deyo, 44 N. Y. 347; Knapp 
 
 Sneedsg. "An insolvent debtor v. Smith, 27 N. Y. 280; Hoxie v. 
 
 cannot accumulate property under Price, 31 Wis. 82; Dayton v. Walsh, 
 
 cover of another's name, acting os- 47 Wis. 113, 32 Am. Rep. 757, 2 N. 
 
 tensibly as the agent of such other, W. 65; Mayers v. Kaiser, 85 Wis. 
 
 and hold it as against his creditors; 394, '39 Am. St. Rep. 849, 21 L. R. -A. 
 
 and where such a claim is made it 623. 
 
 is always a question of fact whether See sections 224, 225, post. 
 
 the business actually belongs to ^Xripp v. Childs, 14 Barb. 85; 
 
 such other person or to the ostensi- Patterson v. Campbell, 9 Ala. 933; 
 
 ble agent and debtor, and whether Waddingham v. I/oker, 44 Mo. 132, 
 
 the alleged agency was a mere 100 Am. Dec. 260; vide Isham v. 
 
 scheme and device to conceal and Schaffer, 60 Barb. 317; Hodges v. 
 
 keep the property used in or gained Cobb, 8 Rich. 50. 
 by it from his creditors." Ansorge 3Glann z/. Younglove, 27 Barb. 
 
 V. Barth, 88 Wisi 553, 43 'Am. St. 480; Robinson v. Wallace, 39 Penn. 
 
 Rep. 928, 60 N. W. 1055; Feller v. 129. 
 Alden, 23 Wis. 301, 99 Am. Dec. 173; 
 
262 WHAT TBANSFERS ARE WITHIN THE STATUTE, 
 
 the business and the profits are Ms.^ 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.^ But where she owns 
 and manages the business, she may buy property on credit 
 and employ him as her agent.^ 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 credit-- 
 ors if the note is paid by him.® If she has a separate 
 estate she 'may employ him and compensate him for his 
 services.^ Such employment, however, must be in good 
 
 iQuidort v. Pergeaux, i8 N. J. J. Eq. 30; Alt v. Lafayette Bank, 9 
 
 Eq. 472. Mo. Ap. 91. ■ 
 
 SBucher v. Ream, 68 Penn. 421; BMcIvaran v. Mead, 48 Mo. 115; 
 
 Hallowell v. Horter, 35 Penn. 375; Coffin v. Morrill, 22 N. H. 352; Dick 
 
 Barringer v. Stower, 49 Penn. 129; v. Hamilton, i Deady, 322. 
 Robinson v. Wallace, 39 Penn. 129; BKnapp v. Smith, 27 N. Y. 277; 
 
 Hofiman v. Toner, 49 Penn. 231; Voorhis z/. Bonesteel, 16 Wall. 16; 
 
 Hall V. Sroufe, 52 111. 421; Keeney s. c. 7 Blatch. 495; GageK. Dauchy, 
 
 V. Good, 21 Penn. 349; Rankin v. 34 N. Y. 293; s. c. 28 Barb. 622; 
 
 West, 25 Mich. 195; Penn v. White- Feller v. Alden, 23 Wis. 301, 99 Am. 
 
 heads, 12 Gratt. 74; Sfiepherd v. Dec. 173; Savage v. O'Neil, 44 N. 
 
 Hill, 6I,ans. 387; Pawley v. Vogel, Y. 298; Buckley v. Wells, 33 N. Y. 
 
 42 Mo. 291; Glidden v. Taylor, 16 518; s. c. 42 Barb. 569; Welch v. 
 
 Ohio St. 509, 91 Am. Dec. 98; Rob- Kline, 57 Penn. 428; Kluender v. 
 
 insonf. Brenns, 90III. 351. Contra, Lynch, 4 Keyes, 361; s. c. 2 Abb. 
 
 Knapp V. Smith, 27 N. Y. 277; 538; Bellows v. Rosenthal, 31 Ind. 
 
 Baugh V. Monaghan, 2 Phila. 90. 116; Dean v. Bailey, 50 111. 481, 99 
 
 ^Manderbach v. Mock, 29 Penn. Am. Dec. 533; Merchant v. Bunnel, 
 
 43; Rankin v. West, 25 Mich. 195. 3 Abb. Ap. 280; Wheedon v. Chap- 
 
 ^National Bank v. Sprague, 20 lin, 59 Barb. 61; Vrooman v. Grif- 
 
 N. J. Eq. 13; Quidort v. Pergeaux, fith, 4 Abb. Ap. 505; Driggs v. Rus- 
 
 18 N. J. Eq. 472; Pawley v. Vogel, sell, 3 N. B. R. 161; in re Eldred, 3 
 
 42 Mo. 291; Lyman z;. Place, 26 N. N. B. R. 256; Bennett w. Stout, 98 
 
WHAT TEANSFERS ARE WITHIN THE STATUTE. 263 
 
 faith, and not merely colorable.^ 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 insufl5cient, is, in effect, an attempt to make a 
 voluntary conveyauce of the products of his skill and 
 labor in her favor, and is void as aigainst his creditors.^ 
 
 111. 47; Tresch v. Wirtz,34 N.J. Eq. 
 134; Aldridge v. Muirhead, loi XT. 
 S. 397; s. c. 14 N. B. R. 249. 
 
 IKnapp 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. Cunniugliam, 
 17 Iowa 510; Woodworth v. Sweet, 
 51N. Y. 8; s. c. 44 Barb. 268; Brow- 
 aell V. Dixon, 37 111. 197. 
 
 SGlidden v. Taylor, 16 Ohio St. 
 509, 91 Am. Dec. 98; Feller v. Alden, 
 23 Wis. 301, 99 Am. Dec. 173; 
 Shackelford v. Collier, 6 Bush, i4gf; 
 Comm V. Fletcher, 6 Bush, 171; 
 Penn v. Whiteheads, 12 Gratt. 74; 
 i'awley v. Vogel, 42 Mo. 291; Wil- 
 son V. Loomis, 53 111, 352. Contra, 
 Ashurst V. Given, 5 Wis. 323; 
 Gillespie I/. Miller, 37 Penn. 247. 
 
 "An insolvent debtor cannot use 
 his wife's name as a mere device to 
 cover up and keep from his creditors 
 the assets and profits of a business 
 which is In fact his own. The 
 marriage relation afiord many op- 
 portunities for conducting schemes 
 to defraud creditors, and hence 
 transactions between husband and 
 wife which have the appearance of 
 being fraudulent will be closely 
 scrutinized. It is a question of 
 fact to be determined from all the 
 circumstances of the case whether 
 or not the husband is carrying on 
 his own business or merely manag- 
 ing his wife's business. It must 
 
 clearly appear that the wife is the 
 bona fide owner of the capital in- 
 vested in the business, and that the 
 accumulations which result from the 
 conduct of the business are the 
 , legitimate outcome of the invest- 
 ment of her property." Lachman 
 i). Martin, 139 111. 450, 454, 28 N. B. 
 7Si5- 
 
 "Under statutes which permit a 
 married woman to make contracts 
 and do business as & feme sole, ^he 
 may avail herself of the services and 
 agency of her husband in the con- 
 duct of her business or management 
 of the property without necessarily 
 s^ubje'ctiiig it or the profits arising 
 therefrom to the claims of his credit- 
 ors; but an insolvent debtor may 
 not use his wife's name as a mere 
 device to cover and keep from cred- 
 itors the assets and profits of a 
 mercantile business which is in 
 truth his own.'' Hyde v. Frey, 
 28 Fed. 819. In Boggess v. Richards' 
 Adm., 39 W. Va. 567, 576, 20 S.E. 
 599, 26 Iv. R. A. 537, the court, after 
 citing this section and other 
 authorities, says: "From these arid 
 other numerous authorities ex- 
 amined there can be no other con- 
 clusion reached than that if a man 
 skilled in any employment does 
 business in his wife's name, with 
 capital furnished by her, and large 
 profits over and above the necessary 
 expenses of the business, including 
 the support of himself, wife and 
 family, accrue therefrom, owing to 
 his skill and experience, and he 
 
264 WHAT TKANSFERS ARE WITHIN THE STATUTE. 
 
 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.^ 
 
 § 225. Uuslband May Live on Wife's Land. — 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 productions 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.^ 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.^ 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,^ 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.^ But if there is any 
 
 turns such profits over to his iBuckley v. Wells, 33 N. Y. 518; 
 
 wife or invests them in property s. c. 42 Barb. 569; White v. Hildreth, 
 
 for her, a court of equity will hold 25 Vt. 265; Webster v. Hildreth, 33 
 
 such an arrangement fraudulent, Vt. 457. 
 
 and will make an equitable distri- SRush j,. Vought, 55 Penn. 437, 
 
 bution of such profits between the 93 Am. Dec. 766; Dick v. Hamilton, 
 
 wife and existing creditors of the 1 Deady, 322; Gage v. Dauchy, 34 
 
 husband. Not that the wife is N. Y. 293; s. c. 28 Barb. 622. 
 
 guilty of any actual fraud, but her SComm. v. Fletcher, 6 Bush, 171; 
 
 hand, be it ever so chaste.is polluted Shackelford v. Collier, 6 Bush. 149; 
 
 by receiving as a gift from her Seay v. Hesse, 123 Mo. 450, 24 S. 
 
 husband the funds which he is W. 1017; Wheeler z/. Biggs, Miss., 15 
 
 endeavoring to fraudulently conceal, So. 118; Phillips v. Hall, 160 Pa. St. 
 
 under the cloak of her separate 60, 28 Atl. 502. See section 218, 
 
 property, from the searching eyes ante. 
 
 of his creditors." 4Comm. v. Fletcher, 6 Bush, 171. 
 
 See sections 67, 222, ante, 225, BComm. v. Fletcher, 6 Bush, 171. 
 226, vj\,post. 
 
WHAT TRANSFERS ARE WITHIN THE STATUTE. 265 
 
 sucli surplus that is the result of his skill, there is no reason 
 wty it may not be reached in equity and appropriated 
 towards the payment of his debts.^ 
 
 § 226. 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.^ 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.^ But if 
 
 iShackelford v. Collier, 6 Bush, 
 149. 
 
 sskillman v. Skillman, 13 N. J. 
 Eq. 403; Belford v. Crane, 16 N. J. 
 Sq. 265, 84 Am. Dec 155; Cramer v. 
 Reford, 17 N. J. Eq. 367, 90 Am.. 
 Dec. 594; Shackleford v. Collier, 6 
 Bush, 149; Cropsey v. McKinney, 30 
 Barb. 47; Beach v. Baldwin, 14 Mo. 
 S97; Pinkston v. McLemore, 31 Ala. 
 308; Duncan v. Roselle, 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. Wiirtz, 34 N. 
 J. Eq. 124. 
 
 The wife is not entitled to her 
 earnings as against creditors of her 
 husband, and real estate purchased 
 with her earnings is subject to his 
 debts, notwithstanding an agree- 
 ment or understanding between 
 him and her that the earnings were 
 to be hers. And if, upon the real 
 estate so purchased with her earn- 
 ings, she puts valuable improve- 
 ments with means not furnished by 
 her husband, his creditors may 
 subject the whole property, includ- 
 ing the improvements, to the pay- 
 ment of their judgments. ' Bailey 
 V. Gardner, 31 W. Va. 94, 13 Am. 
 St. Rep. 847, 5 S. E. 636; Coleman 
 V. Burr, 93 N. Y. 17, 45 Am. Rep. 
 160; Freeman v. Orser, 5 Duer 476; 
 
 Goss V. Cahill, 42 Barb. 310; Smart 
 V. Comstock, 24 Barb. 4ti; Adams 
 w. Curtis, 4,. Lans. 164; Raybold !<. 
 Raybold, 20 Pa. St. 308; Hallowell 
 V. Horter, 35 Pa. St. 375; Bucher v. 
 Ream, 68 Pa. St. 421; Whiting v. 
 Beckwith, 31 Conn. ,596; Elliott v. 
 Bently, 17 Wis. 591 ; Laing v. Cun- 
 ningham, 17 la. 513; Connor v. 
 Berry, 46 111. 371, 95 Am. Dec. 417; 
 McMurtry v. Webster, 48 111. 124J 
 Johnson v. Johnson, 4 Harr. (Del.) 
 171; Henderson z/. Warmack, 27 
 Miss. 83s; Sharp v. Maxwell, 30 
 Miss. -589; Simmons v. Kincaid, 5 
 Sneed 450; Merriwether v. Smith, 
 44 Ga. 541; Dodd v. Geiger's Adm. 
 2 Gratt 99; Vance v. McLaughlin's 
 Adm., 8 Gratt. 289; Campbell v. 
 Bowles, 30 Gratt. 652. 
 
 "We have made diligent search 
 for precedents, and, except in the 
 state of New Jersey, have not 
 found a single authority which 
 holds that in the absence of a 
 statute authorizing it, a wife, with 
 her husband's consent, can, as 
 against his creditors, hold her earn- 
 ings. In New Jersey the decisions 
 are not uniform." Bailey v. Gard- 
 ner, supra. 
 
 On this point the practitioner 
 should consult the statutes and 
 decisions of his local jurisdiction. 
 
 SPinkston v. McLemore, 31 Ala. 
 308; (See 68 Am. Dec. 167); McLe- 
 more V. KnuckoUs, 37 Ala. 662; 
 
266 WHAT TRANSFERS ARE WITHIN THE STATUTE. 
 
 he allows lier to labor upon real estate owned by her, this 
 will not render the products liable to levy under an exe- 
 cution against him.^ 
 
 § 237. Child's Earnings. — A parent by law is entitled to 
 ihe earnings of his minor child. This right arises out of 
 his obligation to support and educate the child, and this 
 ]*©sponsibility 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.^ As the right of the 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 exclu- 
 sion of a proper education and maintenance.* If, therefore, 
 the father emancipates the child and allows him to provide 
 for his own support and education by his own labor, he 
 does not withdraw from his creditors any property or fund 
 to which they are legally or justly entitled for the payment 
 of their demands.* The child is not in law regarded as 
 
 fiinman v. Parkis, 33 Conn. 188; 159; Otis v. Hall, 117 N. Y. 131, 
 Ewing V. Gray, 12 Ind. 64; Johnson 22 N. E. 563; Harris v. Smith", 
 z>. Glenn, 18 Wall. 476; Basham v. 79 Mich. 55, 44 N. W. 169. 
 Chamberlain, 7 B. Men. 443; Glaze 3Lord v. Poor, 23 Me. 569; Leslie 
 V. Blake, 56 Ala. 379. Contra, Peter. v. Joyner, 2 Head, 514. 
 Sbn V. Mulford, 36 N.J. 481. Money *I,ord v. Poor, 23 Me. 569; Man- 
 Saved by the wife out of an allow- Chester v. Smith, 29 Mass. 113; 
 ance for household expenses is the Jenison v. Graves, 2 Blackf. 440; U. 
 property of the husband. Aaronson S. v. Mertz, 2 Watts, 406; McCloskey 
 V. McCauley, 19 N. Y. Supp. 690, 46 v. Cyphert, 27 Penn. 220; Chase v. 
 N. Y. St. Rep. 564. Elkin, 2 Vt. 290; Bray v. Wheeler, 
 
 Ijohnson v. Vail, 14 N.J. Eq. 423. 29 Vt. 514; Bobo v. Bryson, 21 Ark. 
 
 2Swartz V. Hazlitt, 8 Cal. 118; 387, 76 Am. Dec. 406; Lyon v. Boll- 
 Brown V. McDonald, i Hill Ch. 297; ing, 14 Ala. 753, 48 Am. Dec. 122; 
 I)ick V. Grissom, i Freem. Ch. Johnson z/. Vail, 14 N.J. Eq. 423; 
 {Miss.) 428; Danley v. Rector, 10 Atwoodz;. Holcomb, 39 Conn. 270,12 
 Ark. 211, 50 Am. Dec. 242; Schuster Am. Rep. 386; Parridge v. Arnold, 
 V. Bauman Jewelry Co., 79 Tex. 179, 73 111. 600; Rouns v. Dunnigan, 71 
 23 Am. St. Rep. 327, 15 S. W. 259; Mo. 148; Brown's Appeal, 86 Pa. St. 
 Holliday v. Miller, 29 W. Va. 424, 524; Donegan v. Davis, 66 Ala. 362, 
 6 Am. St. Rep. 653; Sav. Bank v. reviewing the cases. See section 
 McLean, 84 Mich. 626, 48 N. W. 211, ante. 
 
WHAT TRANSFERS ARE WITHIN THE STATUTE. 267 
 
 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.^ It must, however, 
 distinctly appear that there have been a mutual abandonment 
 of the rights and duties of parent and a relinquishment of 
 all the property in the child's earnings, or they can not be 
 protected from the parent's creditors.^ But the emancipa- 
 tion of the child from the parent's control may be as per- 
 fect when they both live together under the same roof as if 
 they were separated.* 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.* 
 
 § 228. Character of Conveyance. — The withering influence 
 of the statute extends to all feoffments, gifts, grants, 
 alienations, bargains and conveyances, and all bonds, suitst, 
 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, are vitiated by fraud. Whether the contract is oral 
 or in writing, whether executed by the parties with all 
 the solemnities of deeds by seal* and acknowledgment; 
 whether in the form of the judgment of a court, stamped 
 with judicial sanction,* or carried out by the device of a 
 corporation organized with all the forms and requirements 
 demanded by any statute, if it is contaminated with fraud, 
 the law declares it to be a nullity. Deeds, obligations, 
 contracts, judgments, and even corporate bodies may be 
 the instruments through which parties may obtain the 
 most unrighteous advantages. All such devices and instrn- 
 
 lAtwood V. Holcomb, 39 Conn. BGarretson v. Kane, 27- N. J. 
 
 270, 12 Am. Rep. 386. 208. 
 
 2U. S. Mertz, 2 Watts, 406. BWilhelmi v. Leonard, 13 Iowa, 
 
 3McCloskey v. Cyphert, 27 Penn. 330; Hackett v. Manlove, 14 Cal. 85; 
 
 230. McFarland v. Bain, 33 N. Y. Supr. 
 
 ■iDick V. Grissom, i Freem. Ch. 38. 
 ''Miss.) 428. 
 
WHAT TRANSFERS ARE WITHIN THE STATUTE. 
 
 ments have been resorted to for tlie 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.^ The transfer must, how- 
 ever, be capable in point of law of execnting or aiding in 
 the execution of an illegal purpose.^ 
 
 § 239. Bailment. — The statute has no application to a mere 
 bailment, a simple delivery of possession, for the plain 
 reason that such enactment would be useless. The statute 
 is intended to remove obstructions out of the way of credit- 
 ors, but in cases of bailment the apparent and real condi- 
 tion of the title are 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 remained with 
 the debtor. It does not concern them whether the bail- 
 ment is made from good or bad motives.^ 
 
 § 230. Mode Immaterial. — If a tenant commits a forfei- 
 ture^ or surrenders his term^ 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 
 
 iBooth V. Bunce, 33 N. Y. 139; s. bailee. Stephens v. GifEord, 137 Pa. 
 
 c. 24N. Y. 592; s. c. 35 Barb. 496, St. 219, 21 Am. St. Rep. 868, 2oAtl. 
 
 88 Am. Dec. 372; Curtis v. Leavitt, 542, 27 W. N. C. 30. See section 
 
 IS N. Y. 9; s. c. 17 Barb. 309. 138, ante. 
 
 2Heydock v. Stanhope, 1 Curt. *Anon. Vent. 257. 
 
 471- BWestlake v. Ridout, 5 Taunt. 
 
 SGowen v. Gowen, 30 Mo. 472. It 519. 
 is the duty of those who deal with 6Beverly's Case, 2 Dyer, 245, c. 
 
 the possessor of personalty to ascer- note; Verney's Case, 2 Dyer, 245, 
 
 tain whether he hold it as owner or b.; s c. Coke on Lit. 290, b. 
 
WHAT TRANSFERS ARE "WITHIN THE STATUTE. 269 
 
 contract is fraudulently rescinded, it will be deemed to be 
 still in force.^ A fraudulent cancellation of an indebted- 
 ness will not discharge the debt.^ A note for a debt taken 
 in the name of another is, as far as creditors are concerned, 
 an assignment of the debt.^ A liability, however, which is 
 still in fieri and a mere contingent obligation may be can- 
 celled, rescinded or discharged.^ If the setting up and re- 
 cording of a deed long after its date are merely colorable, 
 the deed is void.^ 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 trans- 
 action may be set aside.^ A lease which is intended as a 
 mere cover to enable the debtor to secure the crops on the 
 premises is void.^ If a mortgagor who has made a con- 
 veyance of the equity of redemption subsequently pays 
 the mortgage, the payments may be reached.* A remission , 
 of a portion of rent that is due in an unfavorable year, in 
 good faith, is merely yielding up that which an enlarged 
 sense of justice requires shall not be exacted.® A 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." 
 
 § 231. 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 
 
 iMaloney v. Bewley, lo Heisk. thaus, 14 Minn. 205; Rogers v. 
 
 642. Jones, I Neb. 417. 
 
 SMartin v. Root, 17 Mass. 222; 4McGay v. Keilback, 14. Abb. Pr. 
 
 Everett v. Read, 3 N. H. 55; McGay 142. 
 
 V. Keilback, 14 Abb. Pr. 142; Wise SLasher v. Stafiord, 30 Mich. 369. 
 
 V. Tripp, 13 Me. 9 ; Wright v. Petrie, BLewis v. Lamphere, 79 111. 187. 
 
 I S. & M. Ch. 282. 7Ingraham w.Rankin, 47 Wis. 406. 
 
 SReppy V. Reppy, 46 Mo. 571; 80liver!7. Moore, 23 Ohio St. 473. 
 
 Freeman v. Burnham, 36 Conn. 469; SAndrews v. Jones, 10 Ala. 400. 
 
 Camp V. Scott, 14 Vt. 387; Marsh v. lociements v. Eccles, 11 Jr. Eq. 
 
 Davis, 24 VI. 363; Brown v. Mat- 229. 
 
270 WHAT TRANSFERS ARE WITHIN THE STATUTE. 
 
 owner to anotlier for a valuable consideration.^ If some- 
 thing has been paid which will be lost by a non-compliance 
 with the contract, another may pay the balance in good 
 faith and take the title. ^ 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.^ But if a surrender is fraudulently made, the 
 creditors may recover the money so paid.* 
 
 § 232. Assignment of Liens. — An assignment of a mort- 
 gage in consideration of money paid by the debtor, if made 
 in fraud, is equivalent to a payment and cancellation of it.^ 
 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.* The 
 same result follows if the debtor, instead of redeeming, 
 allows the sale to stand, and gives money to another to 
 take an assignment of the sheriff's certificate.^ 
 
 § 233. 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- 
 ference to those of any individual partner.^ In their own 
 right they have no lien on the partnership assets, and 
 
 iRaffensberger v. Collison, 28 Thompson v. Van Vechten, 27 N. 
 
 Penn. 426. Y. 568; s. c. 5 Abb. Pr. 458, s. 0. 
 
 2Puseyz». Harper, 27 Penn. 469. 6 Bosw. 373; Remington Paper Co. 
 
 SMiller v. Specht, 11 Penn. 449; v. O'Bougherty, 81 N. Y. 474; Mc- 
 
 Jackson v. Scott, 18 Johns. 94; Marter v. Campbell, 41 Mich. 513. 
 Botts V. CQzine, Ho£fm. 79; vide 8Legro v. Lord, 10 Me. 191; Goff 
 
 Bean v. Brackett, 34 N. H. 102. v. Dabbs, 4 Baxter, 300. 
 
 ^Alexander v. Tams, 13 111. 221; 7Rankin v. Arndt, 44 Barb. 251. 
 
 Botts V. Cozine, Hoffm. 79. BCase v. Beauregard, 99 U.S. 119. 
 
 BStephen v. Sinclair, i Hill, 143; 
 
"WHAT TRANSFERS ARE WITHIN THE STATUTE. 2*71 
 
 hence can not interfere with any disposition that is made 
 of them for a valuable consideration and in good faith.^ 
 If the partners, therefore, dissolve the partnership in good 
 faith and divide the partnership assets among them- 
 selves,^ or transfer them all to one partner,* the partner^ 
 ship creditors have no right to priority of payment out of 
 the assets so divided of 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.* 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.' 
 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 
 creditors, then it is fraudulent and the partnership credit- 
 ors are entitled to priority of payment out of the assets,* 
 even though they may have been transferred to pay indi- 
 vidual debts.^ In such case the insolvency of the part- 
 
 iHowe V. Lawrence, 63 Mass. Rankin v. Jones, 2 Jones Eq. 169; 
 
 553. 57 Am. Dec. 68; Allen v. Center Hapgood v. Cornwell, 48 111. 68, 95 
 
 Valley Co.,2i Conn. 130; Hapgood z*. Am. Dec. 516; GoembeU z/. Arnett, 
 
 Cornwell, 48 111. 68, 95 Am. Dec. 516. 100 111. 34; Wilcox v. Kellogg, 11 
 
 scase V. Beauregard, 99 U. S. 119; Ohio, 394; Baker's Appeal, 21 Penn. 
 
 Allen z/. Center Valley Co., 21 Conn. 76; Armstrong v. Fahnestock, 19 
 
 130; Kimball?/. Thompson,-54Mass. Md. 58; Dimon v. Hazard, 32 N. Y, 
 
 283. 65; BuUett V. Chartered Fund, 26 
 
 ^Expafte Ruffin, 6 Ves. Jr. 119; Penn. 108; Sage v. Chollar, 21 Barb. 
 
 ex parte Peake, i Madd. 346; ex 596; Pfirman v. Koch, i Cin. 46c!. 
 parte Fell, 10 Ves. Jr. 347; ex parte ^Ex parte Ruffin, 6 Ves. Jr. 119. 
 
 Williams, 11 Ves. Jr. 3; McNutt v. ^In re Owen Byrne, i N. B,. R, 
 
 Hobson, 39 Penn. 269; Smith v. Ed- 464; s. c. 16 A. L. Reg. 499; in, re 
 
 wards, 7 Humph. 106; Robb v. Francis Tqines, 19 N. B. R. 36; CqI- 
 
 Mudge, 80 Mass. 534; Howe v. Law- lins v- Hood, 4 McLean, i86; in re 
 
 rence, 63 Mass. 553, 57 Am. Dec. 68; Cook & Gleason, 3 Biss. 122. 
 ex parte Rowlandson, i Rose, 416; 7Pejrson v. Monroe, 21 N. H. 462; 
 
 Ladd V. Grtswold, 9 111. 25, 46 Am, Tracy v. Walker, i Flippin, 41; 
 
 Dec. 443; Shimer v. Huber, 19 N. Phelps y. McNe^y, 66 Mp. 554^ 27 
 
 B. R. 414. Am. Re|). 378; David v. Birckar4» 
 
 iGase V. Beauregard, 99 U. S. 119;^ S3, Wis. 492; Collins v. Efpod, 4 i|c^. 
 
272 WHAT TRANSFERS ARE WITHIN THE STATUTE. 
 
 nersMp is a fact that may be considered in determining 
 whether the dissolution is in good faith or not.^ 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.^ But if the object of the 
 dissolution is to delay, hinder or defraud the individual 
 creditors of one partner, then it is void.^ . 
 
 § 234. 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 
 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.^ 
 
 § 235. Sales under Fraudulent Judgments or Mortgages. — 
 
 An intention to delay, hinder or defraud creditors will in- 
 
 I/ane, i86; ex parte Benjamin Stratton, 41 N. J. 466. "In the 
 
 Mayou, 4 De G. J. & S. 664; Sander- case of a confession of judgment 
 
 son, V. Stockdale, 11 Md. 5^3; Flack if it is part and parcel of a scheme 
 
 V. Charron, 29 Md. 311; Anderson v. to remove property from the reach 
 
 Maltby, 4 Bro. Ch. 423. of creditors, although the plaintiff 
 
 iShimer z/. Huber, 19 N. B. R. in the judgment may be entirely 
 
 414; Frank v. Peters, 9 Ind. 344. innocent, and although his debt 
 
 SAtkins V. Saxton, 77 N. Y. 195. may be entirely honest, the judg- 
 
 SBurrill v. I^owry, 18 N. B. R. ment is tainted by the intent of the 
 
 367; Weaver v. Ashcroft, 50 Tex. parties confessing the judgment." 
 
 427- Simons v. Goldbach, 56 Hun 204, 
 
 ^Yoder v. Standiford, 7 Mon. 31 N. Y. St. Rep. ii«, 9 N. Y.Supp. 
 
 478; Beattie v. Pool, 13 S. C. 379; 360, afEd. 123 N. Y. 637, 33 N. Y. St. 
 
 Shainwald v. I<ewis, 6 Fed. Rep. Rep. 1028; King v. Munzer, 59 N. 
 
 752; s. c. 6 Saw. 556; Shallcross v. Y. St. Rep. 516; Galle v. Tode, 74 
 
 Deats, 43 N. J. 177; Mulford v. Hun 542, 56 N. Y. St. Rep. 851. 
 
"WHAT TRANSFERS ARE WITHIN THE STATUTE. ,273 
 
 validate a public as well as a private sale, for the mere fopm 
 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.^ A fraudulent judgment^ or attachment,^ therefore, 
 with an execution and sale thereunder, confers no title on a 
 purchaser who is a party to the fraud, whether he is the 
 ostensible judgment or attaching creditor* or some other 
 person.' Even though a judgment^ or mortgage^ was 
 originally recovered or given in 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 ref p;?red 
 to the time when it is used for the purpose of f raud,, 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. 
 
 § 336. Purchases at Public Sales with Debtor's Money.— 
 
 A public sale may be void although it is made in satisfac- 
 
 iHatnmock v. McBride, 6 Geo. mock v. McBride, 6 Geo. 178; Pen- 
 
 178; Pennington v. Chandler, 5 Har- nington v. Chandler, 5 Harring. 
 
 ring. 394; Ansley v. Carlos, 8 Ala. 394. 
 
 900; s. c. 9 Ala. 973; Bentley v. SBriody v. Conro, 42 Cal. 135. 
 
 Heintze, 33 N. J. Eq. 405. 4Burnell v. Johnson, 9 Johns. 
 
 Permitting property to be sold 243; Boardman z/. Keeler, i Aik. 158; 
 
 for taxes with fraudulent intent Hammock v. McBride, 6 Geo. 178. 
 
 will avoid a sale to a purchaser schristopherson v. Burton, 3 
 
 with notice of the fraud. , Exch. 160; s, c. 7 L. J. Exch. 60. 
 
 Uvingston v. Wright, 88 Ga. 33, 6Gibbs i-. Neely, 7 Watts, .305; 
 
 13S. E. 832. Serfoss v. Fisher, 10 Penn. ,184; 
 
 SBurnell v. Johnson, 9 Johns. Floyd v. Goodwin, 8 Yerg, 484, 29 
 
 243; Christopherson v. Burton, 3 Am. Dec. 130; Stephens v. Barnett, 
 
 Exch. 160; s. c. 18 L.J. Exch. 60; 7 Dana, 257; Remington Paper Co. 
 
 Baordman v. Keeler, i Aik. 158, 15 v. O'Doughgrty, 81 N. Y. 474. 
 
 Am. Dec. 670; Metropolitan Bank 7Warner z/. Blakeman, 4 Abb. Ap. 
 
 ». Durant, 22 N. J. Eq. 35; Ham- 530. 
 
274 WHAT TRANSFERS ARE WITHIN THE STATUTE. 
 
 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.^ If the debtor, for instance, at a public sale under 
 a mortgage^ or an execution,^ 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 
 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 ofiicer. In reality 
 the conveyance is from the debtor . through the sheriff or 
 other public oflBcer, 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 riot paid at the time, but is furnished after- 
 wards, the same principle applies, as, for instance, if the 
 purchaser receives the money from the debtor before the 
 execution of the deed,* or if the plaintiff in the execution 
 
 , IDobson V. Brwin, i Dev. & Bat. Stovall v. Farmers' Bank, i6 Miss. 
 
 569; s. c. 4 Dev. & Bat. 201; Yoder 305, 47 Am. Dec. 85; Duncan v. 
 
 V. Standiford, 7 Mon. 478, Forsyth, 3 Dana,, 229; Brown v. 
 
 SGutzweiler v. Lackman, 23 Mo. M'Donald, i Hill Ch. 297; Gumming 
 
 168. . . .V. Fryer, Dudley, 182; Ewing v. 
 
 SMorris w. Allen, 10 Ired. 203; Gray, 12 Ind. 64; Marriotts. Givens, 
 
 Abney v. Kingsland, 10 Ala. 355, 8 Ala. 694;,McBride v. Thompson, 
 
 44 Am. Dec. 491; Payne z/. Craft, 7 8 Ala. 650; Goodwin v. Goodwin, 
 
 W. & S. 458; Hays v. Heidelberg, 9 20 Geo. 600; Hubbard v. Allen, 59 
 
 Penn. 203; Griffin v. Wardlaw, x Ala. 283; Fulton v. Woodman, 54 
 
 Harper Eq., 481; Dobsonz;. Erwin, Miss. 158. 
 
 1 Dev. & Bat. 569; 5. c. .4 Dev. & ^Griffin y. Wardlaw, i, Harper 
 
 Bat. 201; Miller z/. Fraley, 21 Ark. Eq. 481. 
 22; Rankin z). Arndt, 44 Barb. 251; 
 
WHAT TRANSFERS ARE "WITHIN THE STATUTE. 276 
 
 • 
 
 is the purchaser at the sale and gives no credit for the 
 proceeds, and afterwards receives full satisfaction of his 
 debt in another way.^ 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.^ 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.^ If a 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.* If the person who buys the property 
 is not a party to any fraudulent purpose, his purchase • is 
 valid although the debtor gave money to another to buy it.^ 
 
 § 237. Fraudulent Public Sales where the Money is Paid 
 by Others. — A public sale to the highest bidder, under a 
 mortgage® or an execution,^ may be fraudulent although 
 
 ISchott V. Chancellor, 20 Penn. Comptou v. Perry, 23 Tex. 414; 
 
 195; s. c. 23 Penu. 68. Thomson v. Hester, 55 Miss. 656. 
 
 2Hawkins v. Sneed, 3 Hawks, 7Morris v. Allen, 10 Ired. 203; 
 
 149; DobsOil V. Erwin, 1 Dev. & Brodie v. Seagrave, Taylor 144; 
 
 Bat. 569; s. c. 4 Dev. & Bat. 201. Foulk v. M'Farlanej i W. & S. 297, 
 
 3Dobson V. Erwin, i Dev. &-Bdt. 37 Am. Dec. 467; Stephens v. Bar- 
 
 569; s. c. 4 Dev. & Bat. 201; Burke nett, 7 Dana, 257; Pennington v. 
 
 z/. Murphy, 27 Miss. 167; Ewing z*. Chandler, '5 Harring. 394; White 
 
 Gray, 12 Ind. 64. v. Trotter, 21 Miss. 30, 53 Am. Dec. 
 
 *Ward V. Lamberth, 31 Geo. 150; 112; Stpvall v. Farmers' Bank, 16 
 
 Trimble v. Turner, 21 Miss. 348, 53 Miss. 305, 47 Am. Dec. 85; Duncan 
 
 Am. Dec. 90. . z'- Forsyth, 3 Dana, 229; Forrest v. 
 
 ssharpe v. Williams, 76 N. C.'87. ' Camp, 16 Ala. 642; Dick v. Cooper, 
 
 BHawkins v. AUston, 4 Ired. Eq. 24 Penn. 217; Ansley v. Carlos, 9 
 
 137; Overton v. Morris, 3 Port. 249; Ala.' 973; s. c. 8 Ala. 900; Crary v. 
 
 Beeler v. Bullitt, 3 A. K. Marsh. Sprague, 12 Wend. 41; Yoder v. 
 
 280, 13 Am. Dec. 161; Garland v. Standiford, 7 Mon. 478; Ward v. 
 
 Rives, 4 Rand. 282, 15 Am. Dec. Lamberth, 31 Geo. 150; Kilby v. 
 
 756; Lipperd v. Edwards, 39 Ind. Haggin, 3 J. J.- Marsh. 208; Trimble 
 
 165; Roach V. Deering, 17 Miss. 316; V. Turner, 21 Miss. 348, 53 Am. Dec. 
 
 Bickley v. Norris, 2 Brev. 252; 90. 
 
276 WHAT TRANSPEES ARE "WITHIN THE STATUTE. 
 
 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,^ for if there is a combina- 
 tion between the purchaser and the debtor to have the 
 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.^ 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.^ 
 
 The mode of carrying out the combination is imma- 
 terial. It may be by an insufficient advertisement,* or 
 some unusual clause in the advertisement,* or by tearing 
 down advertisements that have been put up,^ or by an 
 agreement that the sale shall be made without any adver- 
 tisement,^ or by bringing the sale on by surprise, and thus 
 either preventing a general knowledge of it, or making it 
 
 iMorris v. Allen, lo Ired. 203. Smith v. Schwed, 9 Fed. Rep. 483. 
 
 sStovall V. Farmers' Bank, 16 ^Metropolitan Bank v. Durant, 
 
 Miss. 305, 47 Am. Dec. 85; Hawkins 22 N. J. Eq. 35. 
 
 V. AUston, 4 Ired. Eq. 137. «Morris v. Allen, 10 Ired. 203; 
 
 SHawkins v. Allston, 4 Ired. Eq. Kilby v. Haggin, 3 J. J. Marsh. 208; 
 
 137; Ries V. Rowland, 11 Fed. Rep. Mechanics' Nat'l Bank v. Burnet 
 
 ^57- Manuf. Co., 33 N. J. Eq. 483. 
 
 iGibbs V. Neely, 7 Watts, 305; 7Morris v. Allen, 10 Ired. 203. 
 
WHAT TRANSFERS ARE "WITHIN THE STATUTE. 277 
 
 impossible for a distant creditor whom it is designed to 
 defeat to be present,^ or by selling the property in large 
 parcels or blocks or en massed or by inducing others not to 
 bid.^ 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;* 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.^ 
 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.^ 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 prop- 
 erty 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, 
 
 iMorris v. Allen, lo Ired. 203. SYoder v. Standiford, 7 Mon. 478; 
 
 2Yoder ». Standiford, 7 Mon. Kilby z/. Haggin, 3 J. J. Marsh. 208; 
 
 478; White V. Trotter, 21 Miss. 30, Trimble v. Turner, 21 Miss. 348, 
 
 53 Am. Dec. 112; Trimble v. Tur- 53 Am. Dec. 90; Stovall v. Farmers' 
 
 ner, 21 Miss. 348, 53 Am. Dec. 90; Bank, 16 Miss. 305, 47 Am. Dec. 85; 
 
 Stephens v. Barnett, 7 Dana, 257; Poulk v. M'Farlane, i W. & S. 297, 
 
 Brodie v. Seagraves, Taylor, 144; 37 Am. Dec. 447; Smith v. Schwed, 
 
 Metropolitan Bank v. Durant, 22 9 Fed. Rep. 483. 
 
 N. J. Eq. 35; Smith v. Schwed, 9 ^Costillo z/. Thompson, 9 Ala. 937. 
 
 Fed. Rep. 483; Cox v. Miller, 54 SAnsley z/. Carlos, 9 Ala. 973; s. c. 
 
 Tex. 16; Mechanics' Nat'l Bank v. 8 Ala. 900. 
 
 Burnet Manuf . Co., 33 N. J. Eq. 483. ^Dick ». Cooper, 24 Penn. 217. 
 
278 VOLUNTARY CONVEYANCES. 
 
 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 credit- 
 ors and defraud them of their rights.-^ 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.^ 
 There are some acts that may be done for the benefit of 
 the debtor, provided that they are done in good faith.^ A 
 son may purchase his father's land as the highest bidder, 
 in order to provide a home and substance for him.* 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.^ 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.® 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.^ 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.^ 
 
 CHAPTER XI. 
 
 VOLUNTARY CONVEYANCES. 
 
 § 238. Definition of Voluntary Conveyance.— A voluntary 
 conveyance is a conveyance without any valuable consider- 
 
 iMorris v. Allen, lo Ired. 203. SKilby v. Haggin, 3 J. J. Marsh. 
 
 SWhite V. Trotter, 21 Miss. 30. 208. 
 
 SJackson v. Bro-wnell, 3 Caines, 7Ragland v. Cantrell, 49 Ala. 
 
 222. 294. 
 
 ^Morris v. Allen, 10 Ired. 203. SKilby v. Haggin, 3 J. J. Marsh. 
 
 5Heintze v. Bentley, 34 N. J. Eq. 208; Thorpe v. Beavans, 73 N. C 
 
 562. 241. 
 
VOLUNTARY CONVBTANOES. 
 
 279 
 
 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 mat- 
 ter how trivial or inadequate, the conveyance is not volun- 
 tary.-^ 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 
 
 IJackson 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 p. 
 Remerschneider, 32 N. Y. 629; s. 
 c. 39 Barb. 417. 
 
 In a recent New York case the 
 Court of Appeals held that a con- 
 veyance for a mere nominal con- 
 sideration is a voluntary con- 
 veyance, overruling Hendy v. 
 Smith, 49 Hun 510, and Webster 
 V. Van Steenburgh, 46 Barb. 211, 
 and controverting to that extent 
 the doctrine of the text. The case 
 arose upon the construction of the 
 recording act. The Court said: 
 
 "We think it would be a perver- 
 sion of language to say that a 
 father, who had conveyed to a 
 daughter property of the value of 
 $20,000 for no greater sum than $10 
 paid, had sold the property to his 
 child or that she had bought it of 
 him. The transfer would be 
 recognized by the popular, as well 
 as the judicial mind, as possessing 
 all the essential qualities of a gift." 
 
 "Upon this branch of the 
 
 case we have no occasion to go 
 farther than to hold that a small 
 sum, inserted and paid, perhaps 
 because of a popular belief that 
 some slight money consideration 
 is necessary to render the deed 
 
 valid, will not of itself satisfy the 
 terms of the statute, where it 
 appears upon the face of the con- 
 veyance, or by other competent 
 evidence, that it was not the actual 
 consideration." Ten Eyck z/. 
 Whitback, 48 N. Y. St. Rep. 251, 
 and cases cited; Worthy v. Caddell, 
 76 N. C. 82. 
 
 The learned editor of the Ameri- 
 can State Reports has expressed 
 similar views in the note to Hager- 
 man v. Buchanan, 14 Am. St. Rep. 
 739. He says: "The expression fre- 
 quently to be found in the opinions 
 of the courts, and elsewhere, that a 
 voluntary conveyance is one en- 
 tirely without consideration, is in 
 our judgment inaccurate and mis- 
 leading. It cannot be that a nomi- 
 nal consideraition, one which 
 neither the grantee nor grantor 
 could have regarded as other than 
 grossly disportionate to the value 
 of the property, is sufficient to give 
 the transfer the same immunity 
 from the attacks of creditors as one 
 which is a fair equivalent for the 
 property transferred. The con- 
 sideration must be substantial, and 
 though it is more than nominal, it 
 may well be so inadequate as to 
 convince any reasonable, unpreju- 
 diced person, that the transfer was 
 voluntary, either in whole or in 
 part." 
 
280 VOLUNTARY COlirVETANOES. 
 
 at the instance of others.^ 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,^ 
 as distinguished from mere voluntary conveyances, is 
 applicable. 
 
 § 339. Intent of Donor Alone. — The validity of a voluntary 
 conveyance depends upon the intent of the party making it, 
 and not on the motive with which it is received. The pro- 
 viso at the end of the statute only extends to transfers 
 made upon a good consideration, and the only considera- 
 tion which is good within the meaning of the statute is a 
 valuable consideration.* It is the innocent purchaser and 
 not the innocent donee that is protected. It is the motive 
 of the giver and not the knowledge of the acceptor that is 
 to determine the validity of the transfer.* If any evidence 
 of the grantee's participation in the fraudulent intent of 
 the grantor were necessary, the mere acceptance of the 
 transfer would be sufficient, for th(? law would presume 
 
 ICornish v. Clark, L. R. 14 Eq. 448; M'Meekin v. Edmonds, i Hill 
 
 184. Ch. 288; 26 Am. Dec. 203; Clark v. 
 
 2Gruber v. Boyles, i Brev. 266; Chamberlain, 95 Mass. 257; Hicks v. 
 
 Beecher v. Clark, 10 N. B. R. 385; Stone, 13 Minn. 434; Peck v Car- 
 
 s. c. 12 Blatch. 256; Fox v. Moyer, michael, 9 Yerg. 325; Gamble v. 
 
 54 N. Y. 125. Johnson, 9 Mo. 605; Laughton v. 
 
 ■ STwyne's Case, 3 Co. 80; s. c. Harden, 68 Me. 208. 
 
 Moore, 638; Taylor v. Jones, 2 Atk. "A voluntary conveyance by a 
 
 600; Thomson v. Dougherty, 12 S. husband to his wife, which is in- 
 
 & R. 448. tended or which tends to defraud 
 
 ^Partridge v. Gopp, i Eden, 163; existing creditors of the husband, 
 
 s. c. I Ambl. 596; Thomson v. cannot be upheld against such 
 
 Dougherty, 12 S. &R. 448; Mohawk creditors Under such cir- 
 
 Bank v. Atwater, 2 Paige, 54; Van cumstances it will be no defence 
 
 Wyck V. Seward, 18 Wend. 375; s. against the claims of such creditors 
 
 c. 6 Paige, 62; i Edw. 327; Swartz v. to show that the wife was innocent 
 
 Hazlett, 8 Cal. 118; Trimble v. Rat- of any fraudulent intent in the 
 
 clifte, 9 B. Mon. 511 ; s. c. 12 B. Mon. transaction, or ignorant of the efiect 
 
 32; Wood V. Hunt, 38 Barb. 302; of the conveyance upon her hus- 
 
 Holmes v. Clark, 48 Barb. 237; Ben- band's creditors." 
 
 nett V. McGuire, 58 Barb. 625; s. c. Gwynn v. Butler, 17 Colo. 114, 28 
 
 5 Lans. 183; Wise v. Moore, 31 Geo. Pac. 467, citing this section. 
 
 148; Newman v. Cordell, 43 Barb. Burdsall v. Wagoner, 4 Colo. 258. 
 
VOLUNTARY CONVEYANCES. 281 
 
 such participation from this fact alone.^ A donee, who sets 
 up a voluntary conveyance when it would, if established, 
 defeat creditors, participates in and carries out the intent 
 of the donor. 
 
 § 240. There must be a Fraudulent Intent. — The word 
 "voluntary" is not in the statute, and it is 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.^ This purpose is the element 
 which will vitiate the 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, there is such an intent, the transfer is void 
 as against creditors. It is not conveyances, when a man 
 owes, that are prohibited, but conveyances with the intent 
 to delay, hinder or defraud creditors.^ The statute itself 
 does not say that mere indebtedness shall be conclusive 
 evidence or even any evidence of the intent to defraud. 
 
 § 241. Mode of Establishing Fraudulent Intent.— It is not 
 necessary, however, to prove an actual intent to delay, 
 hinder or defraud creditors.^ Where the intention with 
 
 IBelt V. Raguet, 27 Tex. 471; Gratt. 26; Weed v. Davis, 25 Geo. 
 
 King V. Russell, 40 Tex. 124. 684. 
 
 iijones V. Boulter, i Cox, 288; By statute of 56 and 57 Vict., c. 
 
 Worthington v. Shipley, 5 Gill, 449; 21 (1893), it is enacted in England 
 
 HoUoway v. Millard, i Madd. 414; that voluntary conveyances, if bona 
 
 Doe z/.1&.outledge, 2 Cowp. 705 ; Cado- fide, are not to be avoided under 27 
 
 gan V. Kennett, 2 Cowp. 432; Gale v. Eliz. c. 4. 
 
 Williamson, 8 M. & W. 405; O'Con- ^Carlisle v. Rich, 8 N. H. 44; 
 
 norz/. Bernard, 2 Jones, 654; Ham- Freeman v. Pope, 5 L. R. Ch. Ap. 
 
 ilton V. Greenwood; i Bay, 173; 538; s. c. L. R. 9 Eq. 206; Norton 
 
 Thomson v. Dougherty, r2 S. & R. v. Norton, 59 Mass. 524; Potter v. 
 
 448; Clayton v. Brown, 17 Geo. 217. McDowell, 31 Mo. 62; Jenkyn v. 
 
 SLyne V. Bank of Kentucky, 5 J. Vaughan, 3 Drew. 419! «■ c. 25 ly. 
 
 J. Marsh. 545; Clayton v. Brown, J. Ch. 338; Smith v. Cherrill, 4 L- 
 
 17 Geo. 217; Taylor v. Eubanks, 3 R. Eq. 39°; s. c. 16 \,. T. (N. S.) 517- 
 
 A. K. Marsh. 239; Mateerz/. Hissim, See sections 24, 25 ante, chapter 
 
 3Penn. 160; Hunters v. Waite, 3 xiii, post. 
 
282 VOLUNTARY OONVETANCES. 
 
 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 
 determination of the actor, but by reasoning or drawing 
 inferences from his external conduct. To this kind of pre- 
 sumption 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. ^ 
 
 § 343. latent a Conclusion of Law. — If the act neces- 
 sarily delays, hinders, or defrauds creditors, the law pre- 
 sumes that it is done with a fraudulent intent.^ The 
 intent is to be assumed from the act.^ 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.* 
 
 § 24:3. No Inquiry into Secret Motives.— The law will not 
 speculate about what is actually passing in the donor's 
 mind,^ for the act need not be immoral or corrupt. The 
 law does not concern itself about the private or secret 
 motives which may influence the debtor. 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 
 
 IVan Wyck v. Seward, i8 Wend. T. (N. S.) 163; Van Wyck v. Sew- 
 
 375; s. c. 6 Paige, 62; s. c. 1 Edw. ard, 18 Wend. 375; s. c. 6 Paige, 62; 
 
 .327. I Edw. 327; Thompson v. Webster, 
 
 sPotter z/. McDowell, 31 Mo. 62; 7 Jur. (N. S.) 531; s. c. 9 W. R. 641; 
 
 O'Connor v. Bernard, 2 Jones, 654; 4 Drew, 628; 4 De G. & J. 600; s. c. 
 
 Freeman v. Pope, L. R. 5 Ch. Ap. 4 L. T. (N. S.) 750; Mackay v. 
 
 538; s. c. L. R. gEq. 206; Norton v. Douglass, L. R. 14 Eq. 106; s. c. 26 
 
 Norton, 59 Mass. 524; Smith v. Cher- L. T. (N. S.) 71. See sections 24, 25 
 
 rill, I/. R. 4 Eq. 39°; s. c. i6 1,. T. ante. 
 
 <N. S.) 517; French v. French, 6 De SFreeman v. Pope, L. R. 5 Ch. 
 
 G. M. & G. 95'; s. c. 25 L. J. Ch. Ap. 538; s. c. L. R. 9 Eq. 206. 
 612; Strong V. Strong, 18 Beav. 408; ^Babcock v. Eckler, 24 N. Y. 623; 
 
 Freeman v. Burnham, 36 Conn. 469; First Nat'l Bank v. Bertschy, 52 
 
 Corlett V. Radcliffe, 14 Moore P. C. Wis. 438. 
 
 121; Reese River Mining Co. v. spreeman V. Pope, L. R. 5 Ch. 
 
 Atwell, L. R. 7 Eq. 347; s. c. 20 L. Ap. 538; s. c. L. R. 9 Eq. 206. 
 
VOLUNTARY OONVEYANCES. 283 
 
 right and duty to do it, and yet, if the transfer is voluntary, 
 and hinders, delays or defrauds his creditors, it is fraudu- 
 lent.^ His actual motives may be considerations of 
 generosity and kindness,^ or an insufficient attention to 
 the amount of his indebtedness or the extent of his assets,^ 
 or ignorance, or mistake, or misconception.* The debtor 
 may have some other purpose in view, but the intent to 
 defraud is a part and parcel of his act. 
 
 § 244. Principles of the Law relating to Toluntary Con- 
 veyances. — It is upon these principles that the law relating 
 to voluntary conveyances rests. In the construction of the 
 statute they are deemed within its operation when they 
 necessarily tend to defeat the just rights of creditors, even 
 though they are made bona fide and with the intention 
 of conferring a gratuitous benefit upon some meritorious 
 object. The law stamps a man's generosity with the name 
 of fraud when it prevents him from acting fairly towards 
 his creditors, and presumes fraud if he disables himself 
 from paying his debts. In such cases the presumption of 
 fraud arises and may exist without the imputation of moral 
 turpitude.^ The principle is that persons must be just 
 before they can be generous, and that debts must be paid 
 before gifts can be made. 
 
 § 245. 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, and that this pre- 
 sumed trust affords the evidence of an intent to defraud. 
 It is well settled, however, that it is not necessary to 
 establish any secret trust.^ The conveyance will be in- 
 
 iPotter V. McDowell, 31 Mo. 62; 67; Van Wyck v. Seward, 18 Wend. 
 
 Patten v. Casey, 57 Mo. 118; Cole v. 375; s. c. 6 Paige, 62; i Edw. 327. 
 Tyler, 65 N. Y. 573. 'tHunters v. Waite, 3 Gratt. 26. 
 
 SReese River Mining Co. v. BO'Connor v. Bernard, 2 Jones 
 
 Atwell, I/. R. 7 Eq. 3471 s. c. 20 L. 654. 
 T. (N. S.) 163. spartridge v. Gopp, i Eden, 163; 
 
 3Norton v. Norton, 59 Mass. 524; s. c. Ambl. 596; Emery v. Vinall, 26 
 
 Black V. Sanders, i Jones (N. C.) Me. 295. 
 
284. VOLUNTARY CONVEYANCES. 
 
 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. 
 
 346. 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. If he divests him- 
 self of his property by giving it away after he has ob- 
 tained credit, and thereby renders himself unable to pay 
 his debts, he violates the confidence which the creditors re- 
 posed in him. This violation of confidence constitutes a 
 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} It is true that they frequently 
 look to the debtor's honesty, industry and skill in busi- 
 ness, but the law cannot take these into account, for they 
 do not afford any means by which the payment of debts 
 can be enforced. 
 
 § 247. Yoluntary Conveyance is a Badge of Fraud. — A 
 
 voluntary conveyance by a person who is indebted is a 
 well-recognized badge of fraud,^ for its natural and 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 
 
 iSee sections 15, 16, 164, 165. 28; Jones v. Boulter, i Cox, 288; 
 
 SGoodson z/. Jones, Styles, 445; Woodson ». Pool, 19 Mo. 340; Rus- 
 
 Doe V. Routledge, 2 Cowp. 705 ; Hoye sell v. Hammond, 1 Atk. 14, George 
 
 V. Peun, 2 H. & J. 477; s. c. i Bland, v. Milbanke, 9 Ves. 189. 
 
VOLUNTARY CONVEYANCES. 285 
 
 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 6071a 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 
 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 
 exeinpted, 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.^ A voluntary conveyance 
 is therefore considered as prima facie evidence of an intent 
 to delay, hinder or defraud creditors.^ 
 
 § 248. Comparative Indebtedness.^ — The presumption of 
 an intent to delay, hinder and defraud creditors arising 
 
 lO'Daniel v. Crawford, 4 Dev. Taylor v. Bubanks, 3 A. K. Marsh. 
 
 197; Smith V. Patton, 6 L. R- Ir. 32. 239; Wilson v. Buchanan, 7 Gratt. 
 
 sworthington v. Shipley, 5 Gill. 334; Wilson v. Kohlhein, 46. Miss. 
 
 449; HoUoway v. Millard, 1 Madd. 346; Stevens v. Robinson, 72 Me. 
 
 414; Gale z/. Williamson, 8 M. & W. 381; vide Hyde v. Chapman, 33 
 
 405; Thompson v. Webster, 7 Jur. Wis. 391; Holden v. Burnham, 63 
 
 <N. S.) 531; s. c. 4 De G. & J. 600; s. N. Y. 74; Pratt v. Curtis, 6 N. B. R. 
 
 c. 4 Drew, 628; s. c. 9 W. R. 641; 139; Wiswell v. Jarvis, 9 Fed. 84; 
 
 s. c. 4 h- T. (N. S.) 50; Jackson v. Smith v. Reid, 134 N. Y. 568, 48 
 
 Timmerman, 7 Wend. 436; Jackson N. Y. St. Rep. 156, 31 N. E. 1082; 
 
 V. Town, 4 Cow. 599, 15 Am. Dec. Ham v. Oilmore, 59 N. Y. St. Rep. 
 
 405; Thompson v. Hammond, i 291; Trager v. Feebleman, 95 Ala. 
 
 :Edw. Ch. 497; Lerow v. Wilmarth, 60, 10 So. 213. 
 
 91 Mass. 382, 93 Am. Dec. 701; Ber- And see section 57, ante. 
 
 trand v. Elder, 23 Ark. 494; Win- 3" After some conflict and confu- 
 
 chester v. Charter, 94 Mass. 606; s. sion in the decisions .... the 
 
 c. 97 Mass. 140; s. c. 102 Mass. 272; Supreme Court of Missouri, in the 
 
 Doyle V. Sleeper, i Dana, 531; case of Walsh z/. Ketchum, 84 Mo. 
 
286 
 
 VOLUNTARY CONVEYANCES. 
 
 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. In- 
 debtedness, therefore, is only one circumstance from which 
 an inference of an intent to defraud may be drawn,^ and 
 must be considered in connection with the donor's estate.^ 
 The true rule by which the fraudulency or fairness of a 
 voluntary 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.^ In other 
 
 427, adopted the rule stated by 
 Bump on Fra;udulent Conveyances" 
 (quoting with approval the above 
 section and the one following) Up- 
 degroff V. Theaker, 57 Mo. App. 
 
 45-47- 
 
 iRichardson v. Smallwood, Jac. 
 552; Cadogan v. Kennett, 2 Cowp., 
 432; I/yon V. Bank of Kentucky, 5 
 J. J. Marsh. 545; Skarf v. Soulby, i 
 H. & tvt. 426; s. c. I Mc. & G. 364; 
 16 Sim. 344; 19 I/. J. Ch. 30. 
 
 The rule as now established is 
 that a voluntary conveyance is only 
 presumptive and not conclusive 
 proof of fraud, and this presump- 
 tion may be explained aud rebutted. 
 Lloyd V. Fulton, 91 U. S. 479. 
 
 There are some authorities which 
 seem to hold that a voluntary con- 
 veyance is conclusively fraudulent 
 against existing creditors. 
 
 "The conveyance being volun- 
 tary, if it resulted in hindering, 
 delaying or defrauding creditors, it 
 is fraudulent in law. Marmon v. 
 Harwood, 124 111. 104, 7 Am. St. 
 Rep. 345, 16 N. E. 236, citing sec- 
 tions 241, 242 ante. 
 
 "In respect to debts existing at 
 the date of a fraudulent conveyance 
 the deed is void by force of the 
 statute of frauds and perjuries. 
 
 Against the attack of a creditor 
 belonging to this class, neither the 
 motive which induced the deed, nor 
 the solvency of the grantor at the 
 time of its execution, nor any other 
 circumstance which might bear 
 upon the bona fides of the parties 
 to the conveyance,, is important. 
 Fraud is the legal conclusion arising 
 from the contemporaneous concur- 
 rence of the two facts, namely, the 
 voluntary deed and an existing debt 
 due by the grantor. " Hagerman z". 
 Buchanan, 45 N. J. Eq. 292, 14 Am. 
 St. Rep. 732, 17 Atl. 946; Haston v. 
 Castner, 31 N. J. Eq. 697. 
 
 Aud see Driggs v. Norwood, 50 
 Ark. 42, 7 Am. St. Rep. 78, 6 S. W. 
 323; Rudy w. Austin, 56 Ark. 73,35 
 Am. St. Rep. 85, 19 S. W. iii; 
 Snyder v. Partridge, 138 111. 173, 32 
 Am. St. Rep. 130, 29 N. E. 851; 
 Trager v. Feebleman, 95 Ala. 60, 10 
 So. 213; Jackson v. Lewis, 34 S. C. i, 
 12 S. E. 560. 
 
 SDietus V. Fuss, 8 Md. 148. 
 
 SKipp V. Hanna, 2 Bland, 26J 
 Bonny V. Griffith, Hayes, 115; Tay- 
 lor V. Heriot, 4 Dessau. 227; Bab- 
 cock V. Eckler, 24 N. Y. 623; Taylor 
 V. Eubanks, 3 A. K. Marsh. 239; 
 Carr v. Breese, 81 N. Y. 584. 
 
VOLUNTARY OONVETANOES. 287 
 
 words, the fraudulent intent is to be collected from tlie 
 comparative value and magnitude of tlie gift.^ 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.^ 
 
 § 249. 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.^ If no evidence 
 is given to show that the donor had ample means to meet 
 his liabilities, then the transfer must be deemed void as 
 against creditors.* 
 
 § 250. Voluntary Convevance 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- 
 
 iPartridge z/. Gopp, i Eden, 163; Under the New York and Indiana 
 
 s. u. Auibl. 596; Jacks v. Tunno, 3 statutes the burden of proof is not 
 
 Dessau, i. on the donee. 
 
 ^Thompson v. Webster, ' 7 Jur. "When a judgment creditor as- 
 
 (N. S.) 531; s. c. 4 Drew. 628; s. c. 9 sails a conveyance made by the 
 
 W. R. 641; s. c. 4 De G. & J. 600; s. judgment debtor, he cannot cast 
 
 c. 4 L. T. (N. S.) 750; Clements w. upon the grantee the o»«i! of show- 
 
 Eccles, II Ir. Eq. 229. iug good faith and of establishing 
 
 SBaxter y. Sewell, 3 Md. 334;. s. that the grantor was solvent after 
 
 c. 2 Md. Ch. 447; Spindler v. Atkin- the conveyance, by siinply showing 
 
 son, 3 Md. 409; s. c. I Md. Ch. 507, that the deed was not founded 
 
 56 Am. Dec. 755; EUinger v. Crowl, upon a valuable consideration. But 
 
 17 Md. 361; Hunters v. Waite, 3 the person assailing the ^eed as- 
 
 Gratt. 26; Crossley v. Ellworthy, I/. sumes the burden of showing that 
 
 R. 12 Eq. 158; Wilson v. Buchanan, it was executed in bad' faith and 
 
 7 Gratt. 334; Woolstou's Appeal, 51 that it left the grantor insolvent 
 
 Penn. 452; Crumbaugh v. Kugler, 2 and without ample property to pay 
 
 Ohio St. 373; Reynolds v. Lansford, his existing debts and liabilities." 
 
 16 Tex.. 286; Raymond v. Cook, 31 Kain v. Larkin, 131 N. Y. 307,43 
 
 Tex. 373; Oliver' v. Moore, 23 Ohio N. Y. S. R. 197, 30 N. E. 105; Bank 
 
 St. 473; Spence v. Dunlap, 6 Lea. z/. Mead, 92 N. Y. 637; Spauldin^ ». 
 
 457. ' Blytlie, 73 Ind. 93; McCole z;. Loehr, 
 
 ^Ellinger v.Crowl, 17 Md. 361; 79 Ind. 430. 
 Matthews v. Torinus, 22 Minn. 132. 
 
288 VOLUNTARY OONVETANCES. 
 
 To allow a man less tlian this would be to deny Mm the 
 power of disposing of his^ own according to his good will 
 and pleasure. '^ There is no more objection to a man's 
 giving away his property, if he is able to do it, than there 
 is to his selling it.^ If a man is entirely free from debt, 
 he may therefore make a voluntary conveyance in good 
 faith.* He may, if he pleases, give away all his property, 
 if he does it fairly and openly. The magnitude of the 
 «state 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 
 openly done, warns those with whom he deals not to trust 
 him too far.* If the debts are fully secured,^ or are fully 
 provided for in the conveyance,* the gift is in the same 
 condition as if the donor wereftntirely free from debt. 
 
 § 251. Mere Indebtedness. — It is not any and every in- 
 debtedness that will amount to a prohibition of the debtor's 
 power to make a gift. When there is no actual intent to 
 
 iSexton V. Wheaton, 8 Wheat. Holmes v. Penney, 3 K. & J. 90; 
 
 229; Thomson v. Dougherty, 12 S. Roberts v. Gibson, 6 H. & J. 116; 
 
 & R. 448. Phillips V. Wooster, 36 N. Y. 412; 
 
 2Creed v. Lancaster Bank, i s. c. 3 Abb. Pr. (N. S.) 475; Mumma 
 
 Ohio St. I. V. Weaver, 2 Pearson, 172. But see 
 
 SSexton V. Wheaton, 8 Wheat. Hagerman v. Buchanan, cited in 
 
 229; Goodson V. Jones, Styles, 445; note to section 248, ante. 
 Middlecome v. Marlow, 2 Atk. 519; *Sexton v. Wheaton, 8 Wheat. 
 
 Paringer v. Ramsay, 4 Md. Ch. 33; 229; Martin v. OUiver, 9 Humph, 
 
 s. c. 2 Md. 365; Townsend z/. Wind- 561; Kid v. Mitchell, i N. & M. 
 
 liam, 2 Ves. Sr. i; Russell v. Ham- 334; Stevens v. Olive, 2 Brock. 90; 
 
 mond, I Atk. 14; Battersbee v. Dick v. Hamilton, i Deady, 322. 
 Farrington, i Swanst. io5; s. c. 1 SStephens v. Olive, 2 Brock. 90; 
 
 Wils. 88; Bonny v. Griffith, i Hayes, Manders v. Manders, 4 Ir. Eq. 434; 
 
 115; Benton z/. Jones, 8 Conn. 186; Pell v. Tredwell, 5 Wend. 661; 
 
 Stevens v. Olive, 2 Brock. 90; Johnson v. Zane, 11 Gratt. 552; 
 
 Glaister v. Hewer, 8 Ves. I96; Hester z;. Wilkinson, 6 Humph. 215; 
 
 Sweeney v. Damron, 47 111. 450; Williams v. Davis, 69 Penn. 21; 
 
 Winebrenner v. Weisiger, 3 Mon. Nippe's Appeal, 75 Penn. 472. 
 32; Baker' v. Welch, 4 Mo. 484; BGeorge v. Millbank, 9 Ves. 189; 
 
 Charlton v. Gardner, 11 Leigh, 281; Kid v. Mitchell, i N. & M. 334, 9 
 
 Haskell v. Bakewell, 10 B. Mon. Am. Dec. 702; Hester v. Wilkinson, 
 
 106; Sagitary v. Hide, 2 Vern. 44; 6 Humph. 215; Vance v. Smith, 2 
 
 Walker v. Burrows, i Atk. 93; Heisk. 343. 
 
VOLUNTARY OONVEYANCES. 289 
 
 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 con- 
 struction 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 in- 
 debted to some amount. He may intend to pay every debt 
 as soon as it is contracted, and constantly use his best en- 
 deavors 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 in- 
 tention by which he is kept indebted in spite of himself.^ 
 To say that the mere circumstance of a person's being in- 
 debted at the time, without reference to the coniparative 
 state of his debts and of his means of paying them, is con- 
 clusive evidence of a fraudulent intention with respect to his 
 creditors, would be asserting that which is 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 suppression of fraud.^ It is 
 accordingly settled that mere indebtedness alone is not suf- 
 ficient to render a voluntary conveyance void, if the donor 
 has ample means left to pay his debts.^ 
 
 ITownsend v. Westacott, 2 Beav. Wilkinson, 5 Ves. 384; Burkey v. 
 
 340; s. c. 9 L. J. Ch. 241, 4 Beav. Self, 4 Sneed, 121; Dillard v. Dil- 
 
 58. lard, 3 Humph. 41; Smith v. Little- 
 
 2Taylor v. Eubanks, 3 A. K. John, 2 McCord, 362; Thacher v. 
 
 Marsh. 239. Phinney, 89 Mass. 146; Brackett v. 
 
 3Manders v. Manders, 4 Ir. Eq. Wait, 4 Vt. 389; Arnett v. Wanett, 6 
 
 434; Skarf V. Soulby, i H. & Tw. Ired. 41; Smith v. Reavis, 7 Ired. 
 
 426; s. c. I Mc. & G. 364; s. c. 16 341; Martin v. Evans, 2 Rich. Eq. 
 
 Sim. 344; s. c. 19 L. J. Ch. 30; 368; Dewey v. Long, 25 Vt. 564; Mil- 
 
 Martyn v. McNamara, 4 Dr. & War. ler v. Pearce, 7 W. & S. 97; Mateer 
 
 411; Wilson V. Howser, 12 Penn. 109; v. Hissim, 3 Penna. 160; Hudnal v. 
 
 Postene-. Posten,4Whart. 27;Izzard Wilder, 4 McCord, 294; s. c. i Mc- 
 V. Izzard, iBailey Ch. 228; Lyne v. . Cord, 227, 17 Am. Dec. 744; Simpson 
 
 Bank of Ky., 5 J. J. Marsh. 545; v. Graves, i Riley Ch. 219, 232; Kipp 
 
 Dietus ». Fuss, 8 Md. 148; Lush v. z/.Hanna,2Bland,^6; Kelly's Appeal, 
 
290 
 
 VOLUNTARY CONVETANOES. 
 
 77 Penn. 232; Teed v. Valentine, 65 
 N. Y. 471; Hamburger z;. Peter, 8 Ore- 
 gon 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; Mc- 
 Fadden v. Mitchell, 54 Cal. 628; 
 Koster v. Hiller, 4 Bradw. 21; Nel- 
 son V. Kinney, 93 Tenn. 428, 25 S. 
 W. 100; Phelps V. Smith, 116 Ind. 
 387, 17 N. E. 602, 19 N. E. 156; Sell 
 V. Bailey, 119 Ind. 51, 21 N. E. 338; 
 Shew V. Hews, 126 Ind. 474, 26 N. 
 E. 483; Lockwood v. Harding, 79 
 Ind. 129; Taylor v. Johnson, 113 
 Ind. 164, 15 N. E. 238; Towns v. 
 Smith, 115 Ind. 480, 16 N. E. 811. 
 Contra, Reade v. Livingston, 3 
 Johns. Ch. 481; 8 Am. Dec. 520; 
 Bayard v. Hoffman, 4 Johns. Ch. 
 450; McLemore v, KnuckoUs, 37 
 Ala. 662; Miller v. Desha, 3 Bush, 
 212; Stiles V. Lightfoot, 26 Ala. 443; 
 Spencer v. Godwin, 30 Ala. 355; 
 Pinkstoh v. McLemore, 31 Ala. 308; 
 Lowry v. Fisher, 2 Bush, 70; 92 Am. 
 Dec. 475; 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, 73 Am. Dec. 381; Moore v. 
 Spence, 6 Ala. 506; Costillo v. 
 Thompson, 9 Ala. 937; Lockyer v. 
 De Hart, 6. N. J. 450; Houston v. 
 Boyle, 10 Ired. 496; Enders v. Wil- 
 liams, I Met. (Ky.) 346; Hanson v. 
 Buckner, 4 Dana, 251; 29 Am. Dec. 
 401; Laurence v. Lippincott, 5 N. J. 
 473; Mitchell V. Berry, 1 Met. (Ky.) 
 602; Todd V. Hartley, 2 Met. (Ky.) 
 206; Bogard v. Gardley, 12 Miss. 
 302; Foote V. Cobb, 18 Ala. 585; 
 High V. Nelms, 14 Ala. 350; 48 Am. 
 Dec. 103; Gannard v. Eslava, 20 
 Ala. 732; Swayze v. McCrossin, 21 
 Miss. 317; Thomas v. De Graffinreid, 
 17 Ala. 602; Kahl v. Martin, 26 N. 
 J. Eq. 60; Johnston v. Gill, 27 Gratt. 
 
 587; Lockhard v. Beckley, loW.Va. 
 87; vide Johnson v. West, 43 Ala. 
 68p. 
 
 And see sections 247-248, ante, 
 and cases cited, and Hagerman v. 
 Buchanan, 45 N. J. Eq. 292, 14 Am. 
 St. Rep. 732, 17 Atl. 946. 
 
 In Russell v. Hammond, i Atk. 
 14, Lord Hardwicke said: "I have 
 hardly known one case where the 
 person conveying was indebted at 
 the time of the conveyance that has 
 not been deemed fraudulent;" and 
 in Townsend v. Windham, 2 Ves. 
 Sr. I, he said: "I know of no case 
 where a man indebted at the time 
 makes a mere voluntary convey- 
 ance to a child without considera- 
 tion and dies indebted, but that it 
 shall be considered as part of his 
 estate for the benefit of his credit- 
 ors." These remarks have given, 
 rise to considerable controversy, 
 but they may be explained by the 
 fact that in his time the main con- 
 troversy was whether voluntary 
 conveyances were within the stat- 
 ute. By some the doctrine was 
 called artificial. Jones v. Boulter, 
 I Cox, 288. The main point was to 
 establish the principle, and his 
 language should be construed with 
 a view to the facts of 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 
 satisfied. These were all cases in 
 equity where bills had been filed to 
 have satisfaction out of the estate 
 voluntarily settled. Howard v. 
 Williams, i Bailey, 575; 21 Am. 
 Dec. 483; Kipp V. Hanna, 2 Bland, 
 26; Hopkirk v. Randolph, 2 Brock. 
 132. 
 
 In Schmick v. Noel, 2 Tex. Civ. 
 App. 90, a charge that creditors 
 would not be \ ermitted to attack 
 
VOLUNTARY CONVEYANCES. 
 
 291 
 
 § 252. Insolveucy.i —If tlie donor at the time is indebted 
 to tlie extent of insolvency, tlie conveyance is void. A gift 
 
 a voluntary conveyance if suffi- 
 cient property was left to meet 
 grantor's liabilities, was held to be 
 radically wrong. 
 
 The weight of authority and rea- 
 son seems to be in favor of the doc- 
 trine enunciated in Jackson v. 
 Lewis, 34 S. C. 1-7, 12 S. E. 560, as 
 follows: 
 
 "A voluntary deed may be set 
 aside at the instance of an existing 
 creditor upon the ground of con- 
 structive or legal fraud even where 
 there is not the slightest tint of 
 actual or moral fraud in the trans- 
 action, under the principle that the 
 law requires that one must be just 
 before he is generous. The law will 
 not permit one who is indebted at 
 the time to give his property away, 
 provided such gift proves prejudi- 
 cial to the interest of existing credit- 
 ors. The motive which prompts 
 the debtor to make the gift is 
 wholly immaterial. If the donor is 
 indebted at the time, and the event 
 proves that it is necessary to resort 
 to the property attempted to be con- 
 veyed away by a voluntary deed for 
 the purpose of paying such indebt- 
 edness, the voluntary conveyance 
 will be set aside and the property 
 subjected to the payment of such in- 
 debtedness, upon the ground that it 
 would otherwise operate as a legal 
 fraud upon the rights of creditors, 
 even though it might be perfectly 
 clear that the transaction was free 
 from any trace of moral fraud.'' 
 
 ^What constitutes insolvency. — 
 "A trader is insolvent within the 
 meaning of the statute when he is 
 unable to pay his debts as they 
 mature and become due and pay- 
 able in the ordinary course of busi- 
 ness, as persons carrying on trade 
 
 usually do. The test is not 
 whether upon a postponement of 
 the payment of the debts and a 
 financial settlement of the trader's 
 affairs there is property sufficient to 
 pay them all; that is not the test 
 applied with reference to an inspl- 
 vent within the meaning of the 
 statute. It is whether the trader is 
 able as the debts mature and become 
 payable and due, to pay them as 
 traders usually do. The statute 
 does not contemplate that a person 
 should have his property in such a 
 condition that he can at any and all 
 times, pay his debts in lawful 
 money, but he must be able to pay 
 them as they become due, to meet 
 them as business men usually do. 
 The fact that a person cannot pay 
 without borrowing would not ren- 
 der such person insolvent within the 
 meaning of the statute, provided 
 the borrowing for the purpose of 
 paying is in the ordinary course of 
 business as persons in trade usually 
 do. But if in order to pay a debt 
 as it becomes due, the trader is 
 obliged to transfer a large part 
 of his assets as security for a 
 loan, by means of which he makes 
 payment of that particular debt, 
 at the same time leaving his 
 other debts not provided for 
 which are certain to become due, 
 and not leaving sufficient assets 
 in his hands to meet them when 
 they become due, and when he 
 would have no right to expect that 
 he would be able to meet them, such 
 a payment would not be a payment 
 in the ordinary course of business 
 of persons carrying on trade." 
 Chipman v. McClellan, 159 Mass. 
 
 363. 368, 34 N. E. . 
 
 It seems that the value of the good 
 
292 
 
 VOLUNTARY CONVEYANCES. 
 
 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 
 voluntary, it is void as against creditors.^ In such case 
 
 will of a trader's business should 
 not be considered in determining 
 the question of solvency. In re 
 Pearson, 3 Ch. D. 807; and see 
 O'Bryan v. Koontz, 83 Mo. 323. 
 
 IMorgan v. M'l/elland, 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 I/Cg. Int. 366; Burck- 
 myers v. Mairs, Riley, 208; Dulany 
 V. Green, 4Harring. 285;Walcott v. 
 Almy, 6 McLean, 23; Doughty v. 
 King, 10 N. 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. c. 5 Lans. 183; Ray- 
 mond V. Cook, 31 Tex. 373; Worth- 
 ington V. Shipley, 5 Gill, 449; Man- 
 hattan Co. V. Osgood, 15 Johns, 162; 
 s. c. 3 Cow. 612; Buistzy. Smyth, 2 
 Dessau. 214; Lyne v. Bank of Ky., 
 5 J. J. Marsh. 545; Beckham v. 
 Secrest, 2 Rich. Eq. 54; Arnold v. 
 Bell, I Hayw. 396; Caston v. Cun- 
 ningham, 3 Strobh. 59; Godell e. 
 Taylor, Wright, 82; Fones «. 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 Black. 
 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; Hum- 
 bert 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 z/. 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; Keatingt;. 
 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. ID N. B. R. 49; Willis v. Gattman, 
 53 Miss. 721; Pashby v. Mandrigo, 
 42 Mich. 172; Matson v. Melchor, 
 42 Mich. 477; Donnebaum v. Tins- 
 ley, 54 Tex. 362; Spaulding z/.Blythe, 
 73 Ind. 93; Dannan v. Coleman, 8 
 Mo. Ap. 594; Van Bibber v. Mathes, 
 52 Tex. 406; Gost V. Heidelbe/g, 2 
 Lea. 627; Cole v. Tyler, 65 N.Y. 73; 
 Welcker v. Price, 2 Lea. 666; Prim- 
 rose V. Browning, 59 Geo. 69; 
 Stevers v. Home, 62 Mo. 473; Cham- 
 
VOLUNTARY CONVEYANCES. 293 
 
 the conveyance is void although the indebtedness is small 
 and the property is of little value.^ 
 
 § 253. 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.^ If, for instance, a person having £10,000, 
 and owing that amount, gives away £5,000, it is clearly a 
 fraud. If the effect is to withdraw any portion of the 
 property so that there does not remain sufficient to enable 
 creditors to pay themselves, the conveyance is clearly 
 within the statute.' A transfer of all the donor's property 
 is for this reason fraudulent.* A universal donee is bound 
 to pay the debts of the donor existing at the time of the 
 donation, or to abandon the property thus given to him.^ 
 
 § 254. 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.® 
 If the indebtedness is so large that the effect of the trans- 
 
 bers V. Sallie, 29 Ark. 407; McCon- Rogers, 25 Iowa, 395; Kaehler v. 
 
 nell V. Martin, 52 Ind. 454; Doak v. Diblee, 32 Wis. 19. 
 
 Rungan, 33 Mich.. 75; Russell v. Sprencliz'. French, 6 De G. M. & 
 
 Thatcher, 2 Del. Ch 320; Allen v. G. 95; s. u. 25 L. J. Ch. 612; Taylor 
 
 Walt, 9 Heisk. 242; McAnally v. v. Heriot, 4 Dessau. 227; Chambers 
 
 O'Neal, 56 Ala. 299; Russell v. Fan- v. Spencer, 5 Watts, 404. 
 
 ning, 2 Bradw. 632; Fellows v. ^Harlan v. Barnes, 5 Dana, 219. 
 
 Smith, 40 Mich. 689; Nulton v. BPorche z/. Moore, 14 La. An. 241. 
 
 Isaacs, 30 Gratt. 726; Hunter v. eparrish v. Murphree, 13 How. 
 
 Hunter, 10 W. Va. 321; vidi 92; Thompson v. Webster, 7 Jur. 
 
 Clements v. Eccles, 11 Ir. Eq. 229; (N. S.) 531; s. c. 4 Drew, 628; 9 W. 
 
 Bondz'. Swearingen, i Ohio, 182; R. 641; 4 De G. & J. 600; 4 L. T. 
 
 Gale V. Williamson, 8 M. & W. 405. (N. S.) 750; Jones v. Slubey, 5 H. & 
 
 iTaylor v. Coenen, L. R. i Ch. J. 372; Jacks v. Tunno, 3 Dessau. 
 
 Div. 636; vide Hamburger v. Peter, i; Parkman v. Welch, 36 Mass. 231; 
 
 8 Oregon, 181. Simpson v. Graves, i Riley Ch. 219, 
 
 ^Shears z/. Rogers, 3 B. & A. 362; 232; Swartz z/. Hazlett, 8 Cal. 118; 
 
 Smith V. Cherrill, L. R. 4 Eq. 390; Dennison v. Tattersall, 18 L. T. 
 
 16 L. T. (N. S.) 517; Jackson v. (N. S.) 303; Townsend v. Westacott, 
 
 Bouley, Car. & M. 97; Freeman v. 2 Beav. 340; s. c. 9 L. J. Ch. 241; 
 
 Burnham, 36 Conn. 469; Coates v. 4 Beav. 58; Potter v. McDowell, 31 
 
 Gerlach, 44 Penn. 43; Ammon's Mo. 62; Richardson v. Smallwood, 
 
 Appeal, 63 Penn. 284; Clayton v. Jac. 552; Wilson v. Buchanan, 7 
 
 Brown, 30 Geo. 490; Stewart v. Gratt. 334; Worthington v. Bullitt, 6 
 
294 VOLUNTAKT CONVEYANCES. 
 
 fer is to defraud creditors, tlie conveyance is void.^ If 
 insolvency therefore takes place shortly after the making 
 of the conveyance, that is enough.^ Solvency is generally 
 to be judged of by the event. If the debtor continues 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.^ 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 the time of the conveyance.* 
 Insolvency at the time of the rendition of a judgment 
 always raises a presumption of insolvency at the time of 
 the gift.5 
 
 § 255. Proof of Solvency.— If the debts are ultimately 
 paid," or the donor accumulates other property sufficient to 
 meet them when judgments are obtained upon them,^ the 
 conveyance will generally be valid. It is only when debts 
 either prior or subsequent remain unpaid that any question 
 
 Md. 172; s. c. 3 Md. Ch. 99; Blake 4Crossley v. Elworthy, L. R. 12 
 
 V. Sawiu, 92 Mass. 340; vide Lush v. Eq. 158; Howard v. Williams, i 
 
 Wilkinson, 5 Ves. 384; Norcutt v. Bailey, 575. But where a grantor is 
 
 Dodd, I Cr. & Ph. 100; Martyn v. engaged in a hazardous business, 
 
 M'Namara, 4Dr. & War. 411. or is about to engage in such a 
 
 iHolmes z". Penney, 3K. & J. 90; business, a voluntary conveyance 
 
 Pattersons. McKinney, 97 111. 41; of a large part of his estate will 
 
 Trust Co. V. Sedgwick, 97 U. S. 304; not be upheld against his creditors, 
 
 s. c. 18 N. B. R. 340. In Twyne's Fisher v. Lewis, 69 Mo. 629; Claflin 
 
 case the expression is "greatly in- v. Mess, 30 N. J. Eq. 211; Carpenter 
 
 debted." z/. Roe, loN. Y. 227; Case z/. Phelps, 
 
 2Crossley v. Elworthy, L. R. 12 39 N. Y. 164; Monroe v. Smith, 79 
 
 Eq. 158; Townsend v. Westacott, 2 Pa. St. 459; Bates v. Cobb, 29 S. C. 
 
 Beav. 340; s. c. 9 L. J. Ch. 241; 4 395, 7 S. E. 743- 
 
 Beav. 58; Wilson v. Buchanan, 7 See sections 255-258-261 pojA 
 
 Gratt. 334; Pendleton v. Hughes, BCarlisle v. Rich, 8 N. H. 44, 
 
 65 Barb. 136; Hood v. Jones, 5 Del. vide Eagan v. Downing, sslnd. 65. 
 
 C"- 77- 6Davis v. Herrick, 37 Me. 397; 
 
 sizzard v. Izzard, i Bailey Ch. Smith v. Reavis, 7 Ired. 341; Kerri- 
 
 228; Richardson v. Rhodus, 14 Rich. gan v. Rautigan, 43 Conn. 17. 
 
 95; Caston V. Cunningham,3 Strobh. 7Smith v. Reavis, 7 Ired. 341. 
 59- 
 
VOLUNTARY CONVEYANCES. 295 
 
 can arise concerning its validity. The party who sets up a 
 voluntary conveyance in opposition to the claims of pre- 
 existing creditors is required to show that the means of 
 the donor, independent of the property conveyed, were 
 abundantly ample to satisfy all his creditors.^ The in- 
 quiry is limited to the circumstances of the donor at the 
 time of the conveyance.^ The proof must show not 
 merely a sufficiency of other property to pay the demand 
 of the creditor who assails the transfer, but a sufficiency to 
 pay all the debts then owing by the grantor.^ Liabilities,^ 
 demands arising from a tort,^ judgments rendered in an- 
 other state,® and secured debts,^ must be taken into con- 
 sideration. Debts which are secured by the promise of a 
 co-partner, who subsequently pays them,^ and liabilities as 
 an indorser when there is no proof that the persons for 
 whom he was liable were unable to pay the respective 
 sums for which he was responsible,^ can not be.taken into 
 account. N'otes and accounts belonging to the donor are 
 to be estimated according to their value.'-" Land which 
 may be exempted should be included in the estimate, un- 
 less there is evidence of an intention on the part of the 
 
 IJoues V. Taylor, 2 Atk. 600. See Jones (N. C.) 67; Houston v. Boyle,, 
 
 sections 248, 249, 250, 251, ante. 10 Ired. 496. 
 
 2King V. Thompson, 9 Pet. 204; BCrossley v. Blworthy, L. R. 12 
 
 Posten V. Posten, 4 Whart. 27; Kain Eq. 158. 
 
 V. Larkin, 131 N. Y. 308, 30 N. eClark v. Depew, 25 Penn. 509. 
 
 E. 105; 43 N. Y. St. Rep. 197; 7powell v. Westmoreland, 60 
 
 Whitesel v. Hiney, 62 Ind. 168; Geo. 572. 
 
 McCole V. Loehr, 79 Ind. 432; In re SHitt v. Ormsbee, 12 111. 166. 
 
 Johnson, 20 Ch. D. 389, s. c. 51 L. J. The amount due from a partner 
 
 <N. S.) Ch. 503; in re Maddever, 27 to or on account of his firm must be 
 
 Ch. D. 523; ^ar/flr/f^ Russell, 19 Ch. considered. Denison z/. Tattersall, 
 
 D. 588; Mackey v. Douglas, L. R. 18 L. T. (N. S.) 303. 
 
 14 Eq. 120. 9King v. Thompson, 9 Pet. 204; 
 
 SBirely v. Staley, 5 G. & J. z/zrf« Van Wyckz/. Seward, 18 Wend. 
 
 432. 375; s. c. 6 Paige, 62; s. c. i Edw. 
 
 4Hamet v. Dundass, 4 Penn. 175; 327. But in re Ridler, 22 Ch. D. 
 
 Manhattan Co. v. Osgood, 15 Johns. 74-80-82, it is held that the contin- 
 
 162; s. c. 3 Cow. 612; Trimble v. gent liability of a surety must be 
 
 Ratcliff, 9 B. Mon. 511; s. c. 12 B. taken into account. 
 
 Men. 32; Primrose v. Browning, 59 lopowell v. Westmoreland, 60 
 
 Geo. 69; vide Black v. Sanders, i Geo. 572. 
 
296 VOLUNTARY CONVEYANCES. 
 
 donor to claim the exemption.^ The price bid at a sheriflF's 
 ^ale a long time subsequent is not conclusive evidence of 
 the value of the property.^ 
 
 § 256. Proof must be Clear. — To rebut the presumption 
 of fraud, the proof must be clear, full and satisfactory.^ 
 If there is a reasonable doubt of the adequacy of the 
 grantor's means, then the voluntary conveyance must fall 
 for the effect of it is to delay and hinder his creditors.* 
 It is incumbent on the donee to show a case not only with- 
 out taint, but free from suspicion.^ The condition of the 
 donor must be shown to be such that a prudent man with 
 an honest purpose and a due regard to the rights of his 
 creditors could have made the gift.® This is to be 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.^ 
 
 § 357. Ordinary Course of Events. — If, in the ordinary 
 course of events, the donor's property turns out to be 
 inadequate to the discharge of his debts, the presumption 
 of fraud remains, although the property reserved may 
 have been deemed originally adequate to that purpose.® 
 If he is unable to meet his debts in the ordinary course 
 prescribed by law for their collection, or is reduced to that 
 situation where an execution against him would be un- 
 availing, the conveyance is void,^ for a solvency which the 
 law can not employ in the payment of the debts of an 
 
 IWestmoreland v. Powell, 59 Jac. 552; Patten v. Casey, 57 Mo. 
 
 Geo. 256. 118. 
 
 2Posten V. Posten, 4 Whart. 27; 6Hopkirk v. Randolph, 2 Brock. 
 
 Jennings v. Prentice, 39 Mich. 421. 132. 
 
 SHenderson v. Dodd, i Bailey Sparish v. Murphree, 13 How. 92. 
 
 Ch. 138; Miller v. Wilson, 15 Ohio, 7Shears v. Rogers, 3 B. & A. 362; 
 
 108; Young V. White, 25 Miss. 146. Hunters v. Waite, 3 Gratt. 26. 
 
 4Worthington v. Bullitt, 6 Md. SBlakeney v. Kirkeley, 2 Kev. & 
 
 172; s. c. 3 Md. Ch. 99; Williams v. M. 544; Madden v. Day, i Bailey, 
 
 Banks, 11 Md. 198; s. c. 19 Md. 22; 337, 587; Howard v. Williams, I 
 
 Seward v. Jackson, 8 Cow. 406; s. c. Bailey, 575; McClenachan's Case, 2 
 
 5 Cow. 67; Henderson v. Dodd, i Yeates, 502. 
 
 Bailey Ch. 138; Howard v. Williams, spotter v. McDowell, 31 Mo. 62; 
 
 I Bailey, 575; Swartz v. Hazlett, 8 Dannan v. Coleman, 8 Mo. Ap. 594. 
 Cal. 118; Richardson v. Smallwood, 
 
VOLUNTARY CONVEYANCES. 297 
 
 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.^ 
 The probable necessary and reasonable demands for the 
 support of the donor and his family must therefore be 
 taken into account and deducted.^ The nature of his 
 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.^ 
 
 § 258. 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.* 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 
 indifferent persons.^ Although the property reserved is 
 equal in nominal value to the donor's existing indebted- 
 ness, that does not constitute such suflScient security for 
 his debts as his creditors are entitled to require. They 
 have the right to expect satisfaction of their debts out of 
 his property, and he has no right, in law or morals, to 
 throw upon them the loss which must necessarily ' occur in 
 converting it into money .^ A scanty provision for the 
 payment of debts will not, for this reason, render the con- 
 veyance valid.'' Property worth $7250 has been deemed 
 
 lEddy V. Baldwin, 32 Mo. 369. c. 2 Dill. 50; vide Hardy v. Mitchell, 
 
 2Meyer v. Mohr, 19 Abb. Pr. 299; 67 Ind. 485. 
 Emerson v. Bemis, 69 111. 537. ^Churchill z/. Wells, 7 Cold. 364; 
 
 ^Sedgwick v. Place, 10 N. B. R. Parrish v. Murphree, 13 How. 92; 
 
 28; s. c. 5 N. B. R. 168; s. c. 5 Ben. Paulk v. Cooke, 39 Conn. 566. 
 184. ^Salmon v. Bennett, I Conn. 525; 
 
 ^Parrish v. Murphree, 13 How. Paulk v. Cooke, 39 Conn. 566; Kehr 
 
 92; Paulk V. Cooke, 39 Conn. 566. v. Smithi 20 Wall 31; s. c. 2 Dill. 50; 
 
 SKehr v. Smith, 20 Wall. 31; s. c. s. c. 7 N. B. R. 97; s. c. 10 N. B. R. 
 
 7 N. B. R. 97; s. c. iq N. B. R. 49; s. 49; Beecher v. Clark, 10 N. B. R 
 
298 VOLUNTARY CONVEYANCES. 
 
 insuflBcient to meet debts amounting to $6848/ and prop- 
 erty worth $48,000 has been held not to be ample to meet 
 debts to the amount of $42,000.^ The mere production of 
 deeds of 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.^ 
 
 § 359. Property must Ibe Accessible. — Whether the prop- 
 erty reserved is what will be deemed ample does not 
 depend entirely on the amount and value, as the real end 
 to be accomplished is that the conveyance shall not 
 deprive creditors of the means of collecting their debts. 
 Hence, the nature and situation of the property are to be 
 regarded as well as the amount and value, in view of the 
 facilities that the creditors may have for the collection of 
 their debts.* The property must be so circumstanced that 
 neither delay nor difficulty nor expense need be 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.* If 
 the remaining property is heavily incumbered,® or consists 
 of a reversion after the life-estate of an infant,^ or of the 
 life-estate of a person advanced in years,® or in feeble 
 health,^ or of property that can not be taken on execution,^" 
 
 385; s. c. 12 Blatch. 256; PUpps v. ering v. Norvell, 9 Baxter, 176. 
 
 Sedgwick, 95 U. S. 3; s. c. 12 Blatch. tJWorthington z/. Bullitt, 6 Md. 
 
 163; s. c. 5 Ben. 184; s. c. 5 N. B. R. 172; s. c. 3 Md. Ch. 99; Hunters v. 
 
 168; s. c. 10 N. B. R. 28. Waite, 3 Gratt. 26; Wooten v. 
 
 iBlack V. Sanders, i Jones (N. Osborn, 77 Ind. 513. 
 
 C.) 67. 7Edmunds v. Mister, 58 Miss. 765. 
 
 scrumbaugh v. Kugler, 2 Ohio swilliams v. Banks, 11 Md. 198; 
 
 St. 373; Miller v. Wilson, 15 Ohio s. c. 19 Md. 22. 
 
 108. ^Strong V. Strong, 18 Beav. 408. 
 
 SBirely v. Staley, 5 G. & J. 432. lOVan Wyck v. Seward, 18 Wend. 
 
 ^Church V. Chapin, 35 Vt. 223. 375; s. c. 6 Paige, 62; s. c. i Edw. 
 
 SWorthington v. Bullitt, 6 Md. 327; Henderson v. Lloyd, 3 F. & F. 
 
 172; s. c. 3 Md. Ch. 99; Mohawk 7; Hunters v. Waite, 3 Gratt. 26; 
 
 Bank v. Atwater, 2 Paige, 54; Lev- Church v. Chapin, 35 Vt. 223. 
 
VOLUNTARY CONVEYANCES. 299 
 
 or of property which is in its nature very unstable and can 
 not be easily traced,^ or of depreciating commercial paper,^ 
 or of the remnants of a stock of merchandise which dimin- 
 ishes each day in value,^ 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.* 
 
 § 260. Difference Between that Given and that Keserved.— 
 
 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. ^ 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.® 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.^ If he fraud- 
 ulently conceals his property to avoid the payment of his 
 
 iBlakeney v. Kirkeley, 2. Nev. & SWorthington v. Bullitt, 6 Md. 
 
 M. 544: 172; s. c. 3 Md. Ch. 99; Warner v. 
 
 SMcClenachan's Case, 2 Yeates, Dove, 33 Md. 579; Blake v. Sawin, 
 
 502. 92 Mass. 340; Carpenter v. Carpen- 
 
 SPaulk V. Cooke, 39 Conn. 566. ter, 25 N. J. Eq; 194; Cocke v. Oak- 
 
 *Heatli V. Page, 63 Penn. 280; ley, 50 Miss. 628. 
 Thompson v. Webster, 7 Jur. (N. S.) eWarner v. Dove, 33 Md. 579. 
 
 531; s. c. 9 W. R. 641; s. c. 4 De G. 7Xhompson v. Webster, 7 Jur. 
 
 &J. 600; s. c. 4 Drew. 628; s. c. 4 L. (N. S.) 531; s. c. 9 W. R. 641; s. c. 1 
 
 T. (N. S.) 750; Frencb v. French, 6 De G. & J. 600; s. (;. 4 Drew, 628; 
 
 De G. M. & G. 95; s. c. 25 L. J. Ch. s. c. 4!/- T. (N. S.) 75°; French v. 
 
 612; Church V. Chapin, 35 Vt. 223; French, 6 De G. M. & G. 95; s. c. 
 
 Baker v. Lyman, 53 Geo. 339; El- 25 L. J. Ch. 612. 
 well V. Walker, 52 Iowa, 158. 
 
300 VOLUNTARY CONVEYANCES. 
 
 debts lie is deemed to be insolvent, altbongh his property- 
 consists of money in his pocket and is sufficient to pay all 
 his debts.' 
 
 § 261. Solvency Determined Iby Result. — 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.^ Existing creditors 
 have no ground for complaint if they stand by and suffer 
 subsequent creditors to sweep away the reserved property 
 by obtaining judgments and executions before them,^ and 
 on the other hand the donor's solvency must not depend 
 upon success in the business in which he is engaged,* or 
 the skillful management of his affairs.^ The risk and 
 hazard of his speculations or of his financial arrangements 
 can not either legally or honestly be thrown upon his 
 creditors. 
 
 § 263. Accidents. — The law, however, provides against 
 fraud and the intention to defraud, and not accidents or cal- 
 amities. 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 ^uard against,® as by losses in trade,^ or 
 by fire,^ or by storms.^ The ordinary fluctuations in 
 
 iBlake v. Sawin, 92 Mass. 340. Brackett v. Wait, 4 Vt. 389; Cham- 
 
 2Swartz V. Hazlitt, 8 Cal. ii8; bers v. Spencer, 5 Watts, 404; Ma- 
 Lloyd V. Fulton, 91 U. S. 480. teer v. Hissim, 3 Penna. 160; Smith 
 
 SEigleberger v. Kibler, i Hill v. Yell, 8 Ark. 470; Pepper v. Car- 
 
 Ch. 113; Howard v. Williams, i ter, 11 Mo. 540; Howard v. Wil- 
 
 Bailey, 575; Richardson v. Rhodus, liams, i Bailey, 575; Alston v. 
 
 14 Rich. 95; Alston v. Rowles, 13 Rowles, 13 Fla. 117; Buchanan v. 
 
 Fla. 117; Ricketts v. McCully, 7 McMinch, 3 Rich. (N. S.) 498; vide 
 
 Tenn. 712. O'Daniel v. Crawford, 4 Dev. 197. 
 
 ^Carpenter v. Roe, 10 N. Y. 227; 7Howard v. Williams, i Bailey, 
 
 Crossley v. Ellworthy, L. R. 12 Eq. 575; Sherman v. Hogland, 54 Ind. 
 
 158; Lloyd V. Fulton, 91 U. S. 480. 578; Baugh v. Boles, 35 Ind. 524. 
 
 BBertrand v. Elder, 23 Ark. 494; spepper v. Carter, 11 Mo. 540. 
 
 Young V. White, 25 Miss. 146. See SBrackett v. Wait, 4 Vt. 389; vide 
 
 sections 254, 255, 258, ante. Chamberlayne v. Temple, 2 Rand. 
 
 BJacks V. Tunno, 3 Dessau. 1; 384. 
 
VOLUNTARY CONVBYANOES. 
 
 301 
 
 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.^ 
 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.^ 
 
 § 263. When Yoluntary Conveyance is Talid. — If the 
 debtor after making the conveyance has ample means left 
 to discharge all his pecuniary obligations, the conveyance 
 is valid.^ If his circumstances are such that he may law- 
 
 llzzardz/. Izzard, i Bailey Ch. 228; 
 Wilson V. Buchanan, 7 Gratt, 334; 
 KIwell V. Walker, 52 Iowa, 158. 
 In Clements v. Eccles, 11 Ir. Eq. 
 229, a case was put by way of illus- 
 tration of a loss of the reserved 
 property by defect of title, and it 
 was intimated that such loss would 
 fall on the creditors, but on princi- 
 ple this cannot be so. The donor 
 ■ought to be held to know the 
 -character of his title to his land. 
 See section 254, ante. 
 
 ^Hunters v. Waite, 3 Gratt. 26; 
 .Spirett V. Willows, 3 De J. G. & S. 
 293; s. c. 34 L. J. Ch. 365; s. c. II 
 Jur. (N. S.) 70; L. R. I 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 i;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 in- 
 debtedness was ;f 370. The amount 
 jreserved was ;^72o. The donor's 
 discharge in bankruptcy was sus- 
 pended for three years on account 
 «of unjustifiable extravagance. It 
 was a case of sheer improvidence, 
 
 and not distinguishable in principle 
 from Hunters v. Waite, and there 
 is not a single case in all the reports 
 that would support a voluntary 
 conveyance under such circum- 
 stances. 
 
 SHinde's Lessee v. Longworth, 
 II Wheat. 199; Salmon v. Bennett, 
 I Conn. 525; Jacks v. Tunno, 3 Des- 
 sau, i; Bennett v. Bedford Bank, 11 
 Mass. 421; Parker v. Proctor, 9 
 Mass. 390; Hamilton v. Greenwood, 
 I Bay. 173; Seward v. Jackson,, 8 
 Cow. 406; s. c. 5 Cow. 67; Teasdale 
 V. Reaborne, 2 Bay. 546; Taylor v. 
 Heriot, 4 Dessau. 227; Taylor v. 
 Eubanks, 3 A. K. Marsh. 239; Hud- 
 nal V. Wilder, 4 McCord, 294; s. c. i 
 McCord, 227; Jackson iy. Post, 15 
 Wend. 588; Jackson v. Town, 4 
 Cow. 599; Planck v. Schermerhorn, 
 3 :tfarb. Ch. 644; Babcock v. Eckler, 
 24 N. Y. 623; Holmes v. Clark. 48 
 Barb. 237; Fulton v. Pulton, 48 
 Barb. 581; Mayberry v. Neely, 5 
 Humph. 337; Norton v. Norton, 59 
 Mass. 524; Clayton v. Brown, 17 
 Geo. 217; Bird v. Boldue, i Mo. 701; 
 Cutter V. Griswold, Walk. Ch. 437; 
 Brackett v. Wait. 4 Vt. 389; Cham- 
 bers V. Spencer, 5 Watts, 404; Brice 
 V. Myers, 5 Ohio, 121; Hunters v. 
 Waite, 3 Gratt. 26; Filley v. Regis- 
 
302 
 
 VOLUNTARY CONVEYANCES. 
 
 fully make a gift, lie may give his property to a stranger,^ 
 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.^ A man of wealth 
 
 ter, 4 Minn. 391; Pomeroy w. Bailey, 
 43 N. H. 118; Bay v. Cook, 31 111. 
 336; Arnett v. Wanett, 6 Ired. 41; 
 Jones V. Young, i Dev. & Bat. 352; 
 Dodd V. McCraw, 8 Ark. 83; Hall v. 
 Edrington, 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. Murpbree, 13 How. 92; Wilson v. 
 Buchanan, 7 Gratt. 334; Picquet v. 
 Swan, 4 Mason, 443; Grimes v. Rus- 
 sell, 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; Worth- 
 ington V. Shipley, 5 Gill. 449; 
 Brown v. Austen, 35 Barb. 341; s. i;. 
 22 How. Pr. 394; Peck v. Brumma- 
 gim, 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; Greenfield'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, i Iowa, 
 524; Whittier v. Prescott, 48 Me. 
 367; Hopkirk v. Randolph, 2 Brock. 
 132; Howard v. Williams, 1 Bailey, 
 575; Skarf V. Soulby, i H. & Tw. 
 426; s. c. I Mc. &. G. 364; s. c. 16 
 
 Sim. 344; s. c. 19 L. J. Ch. 30; Buck- 
 lin z/. Bucklin, i Keyes, 141; Borst 
 V. Spelman, 4 N. Y. 284; Ellingerz;. 
 Crowl, 17 Md. 361; Sheppard v. 
 Pratt, 32 Iowa, 296; Wilson v. Kohl- 
 heim, 46 Miss. 346; Brown v. Spivey, 
 53 Geo. 155; Bridgford v. Riddell, 
 55 111. 261; Kerr v. Hutchins, 36 
 Tex. 452; Brookbank z/. Kennard, 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. Connor, 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; Elfeltz-. Hinch, 
 5 Oregon, 255; White ». Beltis, 9 
 Heisk. 645; Haston v. Oastner, 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. I McCrary, 570; 
 Jones V- Clifton, loi U. S. 225; 
 Elwell V. Walker, 52 Iowa, 158; In 
 re Henry Trough, 8 Phila. 214; 
 Merrell v. Johnson, 96 111. 224; Wis- 
 well 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. 
 
 iHoUoway v. Millard, I Madd. 
 414; Speise v. M'Coy, 6 W. & S. 485. 
 
 2Brice v. Myers, 5 Ohio, 121. 
 
VOLUNTARY CONVEYANCES. 303 
 
 feels himself bound to advance Ms 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.^ 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.^ 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 consequeince 
 can not be apprehended from the acts, and therefore the 
 acts can not be considered as constructively fraudulent. 
 They must be regarded as fair dispositions of property, a 
 fair exercise of the power of ownership, and not within the 
 statute. 
 
 § 264. Yalue 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 .** 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, 
 
 iHopkirk v. Randolph, 2 Brock. io6;Bridgfordz'. Riddell, 55 HI- 261? 
 132. Barnum v. Farthing, 40 How. Pr. 25. 
 
 2Haskell v. Bakewell, 10 B. Mon. Sprench v. Holmes, 67 Me. 186. 
 
304 VOLUNTARY CONVEYANCES. 
 
 comes strictly, wlien made by a man of unquestionable 
 solvency, within that class of donations wbicli are denomi- 
 nated presents.-' 
 
 § 265. Partially "Voluntary. — It is manifest tbat 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.^ The rule in equity, however, is different. 
 A court of equity can do full justice to all parties by 
 a,llowing 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 
 Tietween the price paid and the actual value of the prop- 
 erty, courts of equity will therefore regard the convey- 
 ance to the extent of the difference as voluntary.* As 
 between the vendor and the vendee the courts will not 
 weigh the consideration in golden scales, but the rule is 
 different where creditors are concerned.* It is diflBcult to 
 say what will amount to an inadequate consideration, and 
 no general rule has been or can be laid down. Bach case 
 must depend upon its own circumstances. The considera- 
 tion, however, must be palpably less than the real value 
 
 IHopkirk v. Randolph, 2 Brock. Vt. 223; Hopkirk v. Randolph, 2 
 
 132. Brock. 132; Abbee s. Newton, 19 
 
 2jackson v. Peek, 4 Wend. 300. Conn. 20; Allen v. Russell, 78 Ey. 
 
 But in a court of law inadequacy is 105; vide Union Bank v. Toomer, 2 
 
 «vidence of fraudulent intent. See Hill Ch. 27; Turnley v. Hooper, 2 
 
 section 57, ante. Jur. (N. S.) 108. See section 486, 
 
 SWorthington v. Bullitt, 6 Md. post. 
 172; s. c. 3 Md. Ch. 99; Matthews v. ^Matthews v. Feaver, i Cox, 278; 
 
 Feaver, i Cox, 278; Wright w. Stan- vide Nunn v. Wilsmore, 8 T. R. 
 
 nard, 2 Brock. 311; Corlett v. Rad- 521; Grogan v. Cooke, 2 Ball & B. 
 
 clifEe, 14 Moore P. C. I2i; Van Wyck 233; Middlecome v. Marlow, 2 Atk. 
 
 ■V. Seward, 18 Wend. 375; s. c. 6 519; Penhall v. Elwin, i Sm. & Gif. 
 
 Paige, 62; I Edw. 327; Robinson v. 258; Thompson v. Webster, 7 Jur. 
 
 Stewart, 10 N. Y. 189; M'Meekin (N. S.) 531; s. c. 9 W. R. 641; 4 De 
 
 •v. 'Edmonds, i HillCh. 288; .Norton G. & J. 600; 4 Drew, 628, 4 L. T. 
 
 V. Norton, 59 Mass. 524; Trimble v. (N. S.) 750; Blount v. Doughty, 3 
 
 Ratcliffe, 9 B. Mon. 511; s. c. 12 B. Atk. 481; Taylor z/. Heriot, 4 Dessau. 
 
 Mon. 32; Crumbaugh v. Kugler, 2 227; Copis v Middleton, 2 Madd. 
 
 ■Ohio St. 373; Herschfeldtz/. George, 410; Wright v. Stannard, 2 Brock,. 
 
 •6 Mich. 456; Church v. Chapin, 35 311. 
 
NUPTIAL SETTLEMENTS. 305 
 
 of the property, or what it would bring at public sale in 
 the market,^ or what it might reasonably be supposed that 
 the vendor would have taken from any other person.^ 
 
 CHAPTEE XII. 
 
 NUPTIAL SETTLEMENTS. 
 
 § 266. Marriage a Consideration.— 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,^ 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 effects in the personal con- 
 dition of the parties, and- the nature of the rights, duties 
 and disabilities which arise from it, render the considera- 
 tion of marriage important and valuable, and constitute 
 the parties purchasers for a valuable consideration.^ Con- 
 sequently if a settlement is made in good faith, and with- 
 out notice of fraud to the parties who take under it, it is 
 unimpeachable by creditors.® Both parties must concur 
 
 IWorlhington z/. Bullitt, 6 Md. Webber z/. Farmer, 4 Bro. P. C. 170; 
 
 172; s. c. 3 Md. Ch. 99. Townshend v. Windham, 2 Ves 4; 
 
 ^Black V. Cadwell, 4 Jones, (N. Ford v. Stuart, 15 Beav. 495-499. 
 
 C.) 150; Arnold v. Bell, i Hayw. "Marriage is the highest and most 
 
 396; McLean v. Weeks, 65 Me. valuable of all considerations, and 
 
 411. when a conveyance is made upon 
 
 SHardy v Green, 12 Beav. 182. such a consideration, the grantee, 
 
 ^Magniac v. Thompson, 7 Pet. if guiltless of fraud herself, is in at 
 
 348; s. c. I Bald. 344; Frazer v. least as firm and sure a position as 
 
 Thompson, i GifE, 49; s. c. 4 De G. if she had paid in money the full 
 
 &J. 659, Assaby v. Manners, Dyer, value of the property conveyed." 
 
 235, a; Douglassez;. Ward, i Ch. Ca. Cohen v. Knox, 90 Cal. 266, 27 Pac. 
 
 99; Wheeler v. Caryl, i Amb. 121; 215, 13 L. R. A. 711. 
 
 Churchman «. Harvey, ibid. 340; SMagniac v. Thompson, 7 Pet. 
 
 Reynell v. Peacock, 2 Ro. 105; Raw 348; s. c. i Bald. 344; Partridge v. 
 
 V. Pote, 2 Vern. 239; Dilkes v. Gopp, i Eden, 163; s. c. Ambl. 596; 
 
 Broadmead, 2 D. F. and J. 566; Campion v. Cotton, 17 Ves. 264; 
 
306 NUPTIAL SETTLEMENTS. 
 
 in or have cognizance of any intended fraud, in order to 
 render it void. If the settler alone intends a fraud, and 
 the other party has no notice of it, the settlement will he 
 valid. 
 
 § 367. 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 agree- 
 ment of the father is founded upon no undertaking or 
 promise of the daughter, and upon no valuable considera- 
 tion of marriage.^ If, however, there is a specific mar- 
 riage in contemplation, a mere legal contract and promise 
 made in good faith to marry another is a valuable consid- 
 eration. 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 differ- 
 ence 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.^ 
 
 Cadogan v. Kennett, 2 Cowp. 432; v. Bennett, 79 Me. 302, 9 Atl. 727; 
 e:t: parte McBurnie, i De G. M. & Tolman v. Ward, 86 Me. 303, 29 Atl. 
 G. 441; Andrews v. Jones, 10 Ala. 1081; Spears v. Shropshire, 11 La. 
 400; Eppes V. Randolph, 2 Cal. 103; Ann. 559, 65 Am. Dec. 206. 
 Coutts V. Greenhow, 2 Munf. 363; " Marriage being in its nature 
 s. c. 4 H. & M. 485; Hazelinton v. permanent, and being the most 
 Gill, 3 T. R. 620, note; s. c. 3 Doug. important of all civil relations, the 
 415; Bunnel v. Witherow, 29 Ind. law will not lightly allow the 
 123; Tunno v. Trezevant, 2 Dessau. inducements which have led to it 
 264; Frank's Appeal, 59 Penn. 190; to be disturbed. And the dowry- 
 Jones' Appeal, 62 Penn. 324; Croft of a bride, without special proof, 
 V. Arthur, 3 Dessau. 223; Bank v. is presumed to be an inducement 
 Marchand, T. U. P. Charlt. 247; to her marriage." Cohen ». Knox, 
 Herring v. Wickham, 29 Gratt. 628; 90 Cal. 266, 27 Pac. 215, 13 L. R. A. 
 Huston V. Cantrill, 11 Leigh 146; 711, citing this chapter. 
 Otis V. Spencer, 102 111. 622; Pre- iWelles v. Cole, 6 Gratt. 645. 
 witt V. Wilson, 103 U. S. 22; Gibson SSmith v. Allen, 87 Mass. 454. 
 
NUPTIAL SETTLEMENTS. 307 
 
 § 268. Contemporaneous Gift.— A reasonable gift, made 
 contemporaneousry with a marriage, and accompanied witli 
 a delivery of possession, lias strong claims to be considered 
 as a gift in consideration of the marriage, for it is not usual 
 to convey property by deed which passes by delivery, or 
 to use the solemnity of delivery expressly in consideration 
 of marriage, although that may be the real consideration.^ 
 The gift, however, must be contemporaneous with the 
 marriage.^ 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.^ 
 
 § 269. Statements in Articles. — It is not necessary that 
 ' the marriage articles should contain an enumeration of the 
 property which is subject to the settlement.* Chattels, 
 stocks, books, plate, jewelry, and merchandise may be set- 
 tled as well as land.^ It is deemed contrary to the reason 
 and policy of the law for a man on his marriage to stipu- 
 late 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 en- 
 forced until the creditors are satisfied.^ A stipulation that 
 the husband and wife shall take the profits jointly will not 
 render the property liable to his creditors.^ 
 
 § 270. To Whom Extends. — The consideration of mar- 
 riage extends to the wife's children by a former marriage,^ 
 the husband's children by a former marriage,*' and children 
 
 iHopkirk v. Randolph, 2 Brock. 115; Hardy v. Green, 12 Beav. 182. 
 
 132; Toulmin v. Buchanan, i Stew. 7Scott v. Gibbon, 5 Munf. 86. 
 
 67; Andrews v. Jones, 10 Ala. 400. SNewstead v. Searles, i Atk. 265; 
 
 2Hayes v. Jones, 2 Pat. & H. 583; Ithel v. Beane, I Ves. Sr. 215; Ball 
 
 vide Toulmin v. Buchanan, i Stew. v. Burnford, Prec. Ch. 113. 
 
 67. 9Doe V. Routledge, 2 Cowp. 705; 
 
 SCroft V. Arthur, 3 Dessau. 223. vide Bank v. Marchand, T. U. P. 
 
 IJarman v. WooUoton, 3 T. R. Charlt. 247. 
 
 618; Arundell v. Phipps, 10 Ves. In England where the subject has 
 
 139- 
 
 received much more consideration 
 
 BCampion v. Cotton, 17 Ves. 264; than in America, owing to different 
 
 Cadogan ». Kennett, 2 Cowp. 432; social customs, the general rule was 
 
 Bank v. Marchand, T. U. P. Charlt. formerly stated to be that the con- 
 
 247. sideration of marriage extends only 
 
 '^Ex parte Bolland, L. R. 17 Eq. to interests given to the wife, the 
 
308 
 
 NUPTIAL SETTLEMENTS. 
 
 husband, and the issue of the mar- 
 riage. Case of St. Saviour's in 
 Southwark, Lane, 21, 22; Osgood z/. 
 Strode, 2 P. Wms. 245; Johnson v. 
 Legard, 6 M. and S. 60; s. c. in 
 Chancery T. and R. 28:; Sutton v. 
 Chetwynd, 3 Mer. 249; Stackpoole v. 
 Stackpoole, 4 Dr. and War. 320; s. c. 
 2 Con. and Law, 489; Ford v. Stuart, 
 15 Beav. 495; Cotterell v. Homer, 13 
 Sim. 506; Clarke v. Wright, 6 H. 
 and N. 870; Smith v. Cherrill, L. 
 R. 4 Eq. 390; Price v. Jenkyns, 4 
 Ch. D. 483; Gale v. Gale, 6 Ch. D. 
 144; Mackie v. Herbertson, 9 App. 
 Cas. 303. 
 
 The earliest reported case is St. 
 Saviour's in Southwark, Lane, 21, 
 22. In that case the court said "if 
 a man doth, in consideration that 
 his son shall marry the daughter of 
 B., covenant to stand seised to the 
 use of his son for life, and after to 
 the use of other his sons in rever- 
 sion or remainder, these uses thus 
 limited in remainder are fraudu- 
 lent against a purchaser, though 
 the first be upon good consideration, 
 vi^;, for marriage." 
 
 In Clarke v. Wright, 6 H. and N. 
 870, Lord Ch. J. Cockburn said: 
 "I can come to no other conclusion 
 than that a limitation in a marriage 
 settlement in favor of the relations 
 of the settler, other than the issue 
 of the marriage, is uot within the 
 consideration of the marriage." 
 
 In Osgood V. Strode, 2 P. Wms. 
 245-255, Lord Macclesfield said: 
 "The marriage and marriage portion 
 support only the limitation to the 
 husband and wife and their issue, 
 this is all that is presumed to have 
 been stipulated for by the wife and 
 her friends." 
 
 Jenkyns t/.Keymis, i Lev. 150, 237, 
 Hardr. 395, \ Ch. Ca. 103; souielimes 
 cited contra^ is in harmony with 
 this rule, as the words "the consid- 
 prntion of the marriage and of the 
 
 marriage portion will run to all the 
 estates raised by the settlement" 
 refer only to the settlement in that 
 pariieular case, and in that case 
 there were external considerations 
 supporting the collateral limita- 
 tions. See Price «. Jenkins, 4 Ch. 
 D. 487, 488, where the case is com- 
 mented on. 
 
 To this general rule there are two 
 recognized exceptions. One is that 
 the consideration of marriage will 
 support a settlement by a widow on 
 her marriage in favor of the issue 
 of her former marriage or in favor 
 of her illegitimate children. 
 
 In Newstead v. Searles, i Atk. 
 265, Lord Hardwicke first laid down 
 this exception in favor of grand- 
 children by a former marriage. In 
 Clarke v. Wright, 6 H. and N. 849, 
 a settlement by a widow on her 
 marriage in favor of an illegitimate 
 child was upheld. See also Gale v. 
 Gale, 6 Ch. D. 144. 
 
 In Mackie z/. Herbertson, a Scotch 
 case in the House of Lords, 9 App. 
 Cas. 336, 337, 342, a settlement by a 
 widow, on her remarriage, upon 
 her children by a former marriage 
 was upheld. But in that case the 
 grounds of the decision differed 
 from those upon which Newstead j/. 
 Searles, and Clarke v. Wright, had 
 been decided. In Newstead v. 
 Searles, Lord Hardwicke upheld 
 the settlement by a train of reason- 
 ing based upon the injustice of the 
 rule which would prevent a widow 
 about to remarry from providing 
 for her children. And in Clarke z/. 
 Wright, Lord Chief Justice Cock- 
 burn, commenting upon Lord Hard- 
 wicke's decision, said: "It is evi- 
 dent that Lord Hardwicke consid- 
 ered that a provision in a marriage 
 settlement in favor of existing 
 children could not be deemed fraud- 
 ulent within the statute.. // may 
 be that these decisions would not 
 
NUPTIAL SETTLEMENTS. 
 
 309 
 
 stand the test of a very strict 
 analysis or rigorous logic; but it 
 must be borne in mind that the rule 
 on which this exception was en- 
 grafted was itself the result of a 
 very forced and arbitrary construc- 
 tion of the statute. It is not to be 
 wondered at that judicial exposi- 
 tion stopped short of applying it 
 when the consequence was to pre- 
 vent the owner of property, on 
 making a settlement on marriage, 
 from making any binding provision 
 
 for his existing children. " 
 
 "It was as much the duty of the 
 settler to make provision for her 
 illegitimate son as though he had 
 been legitimate." 
 
 In Mackie v. Herbertson, how- 
 ever, Lord Selborne said: "The 
 considerations of the contract, 
 though founded on marriage, must, 
 I apprehend, extend to all those 
 terms of the contract on which de- 
 pend the interests of the parties 
 who are within the consideration of 
 marriage; and when they take only 
 on terms which admit to a partici- 
 pation with them others who would 
 not otherwise be within the con- 
 sideration, then not the matri- 
 monial consideration properly so 
 called, but the considerations of the 
 mutual contract extend to and com- 
 prehend them." 
 
 In commenting on this case, Mr. 
 May (May on Fraudulent Convey- 
 ances, 2nd. Ed. 352) expresses the 
 opinion that this view is the more 
 accurate one. See Price v. Jenkins, 
 4 Ch. D. 483, S. C. 5 Ch. D. 619; in 
 re Green, 11 Ir. Rep. Eq. 502. 
 
 The exception thus stated in 
 favor of a widow is equally applica- 
 ble to a widower. Ithell v. Beane, 
 I Ves. 215; Price v. Jenkins, supra, 
 in re Green, supra. 
 
 See Vason v. Bell, 53 Ga. 516; 
 Michael v. Morey, 26 Md. 239. 
 
 The second exception to the 
 
 general rule above stated was first 
 laid down in Clayton v. Wilton, 3 
 Mad. 302, N., s. c. 6 M. & S. 67, the 
 grounds of the opinion not being 
 reported. It is to the effect that the 
 marriage consideration will support 
 a settlement in favor of the issue of 
 the issue of either husband or wife 
 by a future marriage. But most of 
 the cases in which such limitations 
 to children of a future marriage 
 were upheld were cases in which 
 such a limitation was an interme- 
 diate one between two other limita- 
 tions to parties within the marriage 
 consideration, and if the interme- 
 diate limitation had been held 
 invalid the subsequent limita- 
 tion must also have failed. See 
 Clayton v. Wilton, supra. Roe v. 
 Mitton, 2 Wils. 356, 2 Wils. 3rd. Ed. 
 358, n.; Stackpoole v. Stackpoole, 
 
 2 Con. & Law. 502; In re Sheridan, 
 I L. R..Ir. 54. 
 
 But Mr. May places this exception 
 on grounds analogous to those 
 taken in Mackie v. Herbertson, 9 
 App. Cas. 336-337-342, and says: "It 
 is conceived, however, that the true 
 view in this case also is that such 
 limitations are not within the mar- 
 riage consideration, and that the 
 real question is, upon the construc- 
 tion of each particular settlement, is 
 there or is there not a bargain, 
 whether between husband and wife, 
 or between one or both of them, 
 any other person or persons, as to 
 these limitations?" See Jenkins v. 
 Keymis, i Lev. 153, Hard. 295; 
 Price V. Jenkins, supra; Den v. 
 Ogle, LofEt. 216; White v. Stringer, 
 
 3 Keb. 322, s. c. 2 Lev. 105; Ardis V. 
 Printup, 39 Ga. 648. 
 
 In Wollaston v. Tribe, L. R. 9 Eq. 
 44; and In re Cullen's Estate, 
 14 Ir. Ch. Rep. 506, where no 
 stipulation appeared between the 
 parties with regard to the children 
 by future marriage, a settlement on 
 
310 
 
 NUPTIAL SETTLEMENTS. 
 
 of the parties bom before tbe marriage.^ Wlien tbe 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.^ 
 The consideration of marriage runs through the whole set- 
 tlement 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 
 
 such children was held voluntary. 
 Mr. May sums up the matter as 
 follows: "It is submitted that the 
 only way to reconcile the various 
 contradictory decisions on this sub- 
 ject is to adopt the view laid down 
 by Lord Blackburn and concurred 
 in by Willis, J., in the Court of 
 Exchequer Chamber, in Clarke v. 
 Wright, 6 H. and N. 849, and fol- 
 lowed by Hall, V. C, in Price v. 
 Jenkins, 4 Ch. D. 483. According 
 to the principles laid down in these 
 cases, the real question is, what 
 was the marriage bargain or con- 
 tract? The marriage bargain is like 
 any other mutual agreement in 
 which there are many terms; the 
 promise of the one party to be 
 bound by all the terms is a con- 
 sideration for the promise of the 
 other party to be bound by all the 
 terms, so that none of them are 
 without consideration. The ques- 
 tion, then, in each particular case, 
 is to determine whether the par- 
 ticular limitation has or has not 
 . been contracted for. Once that 
 a particular limitation is either 
 inferred or found by extrinsic 
 evidence to have been stipu- 
 lated for, that moment the lim- 
 itation is included in the con- 
 tract, becomes attached to the con- 
 sideration and is a limitation for 
 
 value." May on Fraudulent Con- 
 veyances, 2d. Ed., 357. 
 
 "It reduces the question to one 
 of the construction of the marriage 
 contract." Ibid. 
 
 "The degree of rela,tionship to 
 either of the settlors of the person 
 whose interest under the settlement 
 is challenged in this view is only 
 material so far as it affects the pre- 
 sumption that such limitation was 
 the subject of a bargain by some or 
 one of the parties to the contract" 
 Ibid, p. 358. 
 
 From these later cases it would 
 seem that the rule excluding col- 
 laterals, stated in the text, is un- 
 sound, and that if the parties to the 
 contract expressly stipulate in favor 
 of collaterals, or even strangers, 
 the settlement upon such collaterals 
 or strangers will be upheld. See 
 cases cited supra; O'Gorman v. 
 Comyn, 2 Schoales and L. 137-147; 
 Doe d. Baverstock v. Rolfe, 8 Ad. 
 and E. 650; Pulvertoft v. Pulver- 
 toft, 18 Ves. 84; Teynham v. Mul- 
 lins, I Mod. 119. 
 
 iCoutts V. Greenhow, 2 Munf. 
 363; s. c. 4 H. & M. 485. 
 
 2Smith V. Cherrill, L. R. 4 Eq. 
 390; s. c. i6 L. T. (N. S.) 517. See 
 note supra and cases cited modify- 
 ing this rule. 
 
NUPTIAL SETTLEMENTS. 311 
 
 the wife dies without any issue, the settlement will be 
 valid against the father's creditors. The law is the same in 
 the case of a stranger.^ 
 
 § 271. 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,^ and the wife's knowledge of his indebtedness will 
 not alone render it void.^ Such a settlement will be valid 
 although the parties have lived in illicit intercourse for a 
 long time previous to the marriage.* 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 
 of a marriage a part of a scheme to protect property against 
 the rights of creditors, the consideration of marriage can 
 not support the settlement.^ 
 
 § 273. Wife's Participation. — The wife, however, must be 
 connected with the fraud to make the settlement invalid.^ 
 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 
 
 iNairn v. Prowse, 6 Ves. 752. BCampion v. Cotton, 17 Ves. 264; 
 
 2Bulmer v. Hunter, L. R. 8 Eq. Bulmer v. Hunter, L. R- 8 Eq. 46; 
 
 46; s. c. 38 L. J. Ch. 543; s. c. 20 L. s. c. 38 L. J. Ch. 543; s. c. 20 L. T. 
 
 T. (N. S.) 492; ex parte McBurnie, (N. S.) 942; Rivers v. Thayer, 7 
 
 I De G. M. & G. 441; Betts z/. Union Rich. Eq. 136; Marshal v. Morris, 
 
 Bank, i H. & G. 175. 16 Geo. 368; Bonser v. Miller, 5 
 
 iiCampion ®. Cotton, 17 Ves. 264; Oregon, 110; Herring v. Wickham, 
 
 Frazer v. Thompson, i Giff. 49; s. 29 Gratt. 628; Prewitt v. Wilson, 
 c. 4DeG. & J. 659; Richardson z/. > 103 U. S. 22; s. c. 3 Woods, 631; 
 
 Horton, 7 Beav. 112; Herring v. Kevan v. Crawford, L. R. 6 Ch. 
 
 Wickham, 29 Gratt. 628. Div. 29. 
 
 4Coutts V. Greenhow, 2 Munf. "Though fraud may be intended 
 
 363:3. c. 4 H. &M. 485; Herring .z/. by the husband, an antenuptial 
 
 Wickham, 29 Gratt. 628. settlement is not void as to his 
 
 SColombine v. Penhall, i Sm. & creditors if the wife has no notice 
 
 Gif. 228; ex parte Mayor, Mont. of his fraudulent intent; both must 
 
 292; Bulmer z/. Hunter, L. R. 8 Eq. concur or the wife's right will not 
 
 46; s. c. 38 L. J. Ch. 543;s. c. 20L. be affected thereby." Nance v. 
 
 T. (N. S.) 942; Galbreath v. Cook, Nance, 84 Ala. 375, 5 Am. St. Rep. 
 
 30 Ark. 417; Prewitt v. Wilson, 103 378, 4 So. 699. 
 U. S. 22; s. c. 3 Woods, 631. 
 
312 NUPTIAL SETTLEMENTS. 
 
 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.^ Notice of the fraud may be inferred from the facts 
 and circumstances of the settlement.^ If the amount of 
 property settled is extravagant, or grossly out of propor- 
 tion to the station and circumstances of the husband, this 
 of itself is snflBcient notice of the fraud.^ 
 
 § 273. How far Yaluable. — 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 \?ith 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 an- 
 swerable for the misapplication of the money. It is not so 
 with the 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 
 patyment of his debts. It is not to be understood that, because 
 marriage is equivalent to a pecuniary 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 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 provision for a family at the commencement of 
 
 iMagniac v. Thompson, 7 Pet. -^Ex parte McBurnie, i De G. 
 
 348; s. c. I Bald. 344; Gordon z;. M. & G. 441; Croft z/. Arthur, 3 Des- 
 
 Worthley, 48 Iowa, 429. sau. 223; Herring v. Wickham, 29 
 
 ZColombine v. Penhall, i Sm. & Gratt. 628; Prewitt v. Wilson, 103 
 
 Gif. 228; Bulmer v. Hunter, X. R. U. S. 22; s. c. 3 Woods, 631. 
 8 Eq. 46; s. c. 38 Iv. J. Ch. 543; s. c. 
 20 L. T. (N. S.) 942. 
 
NUPTIAL SETTLEMENTS. 313 
 
 married life. And in forming a judgment of the bona fides 
 of the transaction, 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 mar- 
 riage is a good consideration, and a settlement founded 
 thereon may prevail even against creditors, it is not 
 necessarily so under all circumstances and to any extent. 
 The reasonableness of it may as well be inquired into as 
 the adequacy of price in a case of pecuniary consideration.^ 
 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.^ 
 
 § 274. 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 articles^ 
 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.^ Such a settle- 
 
 ISimpson v. Graves, i Riley Ch. Randall v. Morgan, 12 Ves. 74, Sug. 
 
 232; ex parte M.cBviTme, i De G. M. H. L. 531 Battersbee v. Farrington, 
 
 & G. 441; Croft V. Arthur, 3 Des- i Lev. 106, i Wils. Ch. 88; Dewey 
 
 san. 223; Prewitt v. Wilson, 103 v. Bayntun, 5 East, 257; Rock v. 
 
 U. S. 22; s. c. 3 Woods, 631; vide Dade, Melmoth MSS. Vol. I, p. 108. 
 
 Bank v. Marchand, T. U. P. Charlt. And the settlement need contain 
 
 247; Herring v. Wickham, 29 Gratt. no recital or notice of the ante-nup- 
 
 628. tial agreement. Perrars v. Cherry, 
 
 2Rivers v. Thayer, 7 Rich. Eq. 2 Vern. 384. 
 
 136. The ante-nuptial agreement must 
 
 SMagniac v. Thompson, 7 Pet. have been one that a court of equity 
 
 348; s. c. 1 Bald. 344; Lockwood v. could have enforced. Bawdes v. 
 
 Nelson, 16 Ala. 294; Brunsden v. Amhurst, Prec. Ch. 402; Brown- 
 
 Stratten, Prec. Ch. 520; Armfield v. smith v. Gilborne, 2 Stra. 738;. 
 
 Armfield, Freem. Ch. (Miss.) 311; Ayliffe v. Tracy, 2 P. Wms. 65; War- 
 
 Kinnard v. Daniel, 13 B. Mon. 496; den v. Jones, 2 De. G. & J. 76. 
 Ralph Bovey's Case, i Vent. 193; 
 
314 NUPTIAL SETTLEMENTS. 
 
 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.^ 
 
 § 275. Not in Conformity with Articles. — A settlement 
 which goes beyond the marriage articles^ or does not cor- 
 respond with any precision to them'* is a voluntary settle- 
 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.* The mere recital of the 
 existence of articles in the settlement is not binding upon 
 the creditors, and they may show that no such articles were 
 made at the time of the marriage.® 
 
 § 276. Parol Ante-nuptial Agreement. — The statute of 
 frauds^ , 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- 
 rige constitutes a demand that can not be enforced, be- 
 cause it is, within the prohibition of this act, and conse- 
 
 iMagniac v. Thompson, 7 Pet. 29; Simpson v. Graves, i Riley Ch. 
 
 348, s. c. I Bald. 344. 232; Shaw v. Jakeman, 4 East. 206; 
 
 ^Saunders v. Ferrill, i Ired. 97; Senliouse v. Earle, I Amb. 285-8; 
 
 Shaw V. Jakeman, 4 East. 206. Partyn v. Roberts, I Amb. 314; 
 
 But in Maguire v. Nicholson, Jason v. Jervis, i Vern. 284, 286; 
 
 Beatty, C. C. 592, a settlement of Gates v. Fabin, 19 W. R. 61. 
 more property than the articles <Magniac v. Thompson, 7 Pet. 
 
 called for was upheld on the 348; s. c. i Bald. 344. 
 ground that the court will not scru- BBattersbee v. Farrington, i 
 
 tinize closely the adequacy of the Swanst. 106; s. c. i Wils. 88; Reade 
 
 consideration. v. Livingston, 3 Johns. Ch. 481; 
 
 SReade v. Livingston, 3 Johns. Simpson v. Graves, i Riley Ch. 219. 
 Ch. 481; Blow V. Maynard, 2 Leigh, 629 Car. II, c. 3, s. 4. 
 
NUPTIAL SETTLEMENTS. 
 
 315 
 
 quently a settlement made iu consideration of sucli an 
 agreement is without any legal consideration and volun- 
 tary.i Neither marriage,^ nor a written acknowledgment 
 after marriage,^ nor a representation at the time of the 
 marriage that a post-nuptial settlement will be valid,^ can 
 give validity to the settlement when otherwise void, or 
 exempt it from the operation of the statute.^ Representa- 
 
 IDygert v. Remerschneider, 32 
 N. Y. 629; s. c. 39 Barb. 417; War- 
 den V. Jones, 2 De G. & J. 76; s. c. 
 27 L. J. Ch. 190; Dundas v. Dutens, 
 2 Cox, 235; s. c. I Ves. Jr. 196; 
 Spurgeon v. Collier, i Eden, 55; 
 Murphy v. Abraham, 15 Ir. Eq. (N. 
 S.) 371; Reade v. Livingston, 3 
 Johns. Ch. 481; Smith .z/. Greer, 3 
 Humph. tl8; Randall z/. Morgan, 12 
 Ves. 67; 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; Borst v. 
 Corey, 16 Barb. 136; IttxhA v. Izzard, 
 
 I Bailey Ch. 228; Simpson v. Graves, 
 Riley Ch. 219; vide Loeffes v. Lewen, 
 Prec. Ch. 379; Hall v. Light, 2 
 Duvall, 358; Hussey v. Castle, 41 Cal. 
 239; Lloyd V. Fulton, 91 U. S. 479; 
 McAnnulty z'. McAnnulty,i2oIll. 35, 
 
 II N.E. 397, citing this section; Man- 
 ning V. Riley, N. J. Ch., 27 Atl. 810. 
 
 But it seems that where the oral 
 promise to convey was the princi- 
 pal inducement to the marriage 
 equity will enforce it as against 
 volunteers aud purchasers with 
 notice, and between parties. Peck 
 V. Peck, 77 Cal. 106, i L. R. A. 185, 
 19 Pac. 227; Green v. Greqn, 34 
 Kans. 740, 55 Am. Rep. 256, 10 Pac. 
 156; Petty V. Petty, 4 B. Mon. 215. 
 39 Am. Dec. 501; Sutherland v. 
 Adm. 5 Bush. 591; Glass v. Hulbert, 
 102 Mass. 241, 3 Am. Rep. 418; 
 Young V. Carter, 10 Hun 194. 
 
 2Warden v. Jones, 2 De G. & J. 
 76; s. c. 27 L.J. Ch. 190; McAnnulty 
 V. McAnnulty, 120 111. 26, 11 N. E. 
 
 397; Peek w.Peek, 77 Cal. 106, i L. 
 R. A. 185, 19 Pac. 227. 
 
 In Caton v. Catou, L. R. i Ch.,137, 
 S. C. L. R. 2 H. L. 127, Lord Cran- 
 worth said: "That marriage in 
 itself is no part performance within 
 the rule of equity is certain. Mar- 
 riage is necessary in order to bring 
 a case within the statute, and to 
 hold that it also takes the case out 
 of the statute would be a palpable 
 absurdity." 
 
 SRandall v. Morgan, 12 Ves. 67; 
 Reade v. Livingston, 3 Johns. Ch. 
 481; Jones V. Henry, 3 Litt. 427; 
 Satterthwaite v. Emley, 4N. J. Eq. 
 489. 
 
 ^Warden v. Jones, 2 De G. & J. 
 76; s. c. 27 L. J. Ch. 190; Simpson J/. 
 Graves, i Riley Ch. 219. 
 
 5But if a promise void under the 
 statute of frauds be partly per- 
 formed by one party, it is a familiar 
 rule of equity that specific per- 
 formance maybe compelled. 
 
 If a settlement be executed at 
 a time when its execution could 
 have been compelled in equity it is 
 no longer voluntary and fraudulent 
 under the statute of Elizabeth. 
 
 And there are certain circum- 
 stances, acts of possession, expen- 
 ditures, etc., the occurrence of 
 which, independently of the mar- 
 riage, will take a parol ante-nuptial 
 promise out of the statute, and con- 
 stitute a valuable consideration for 
 a post-nuptial settlement in pursu- 
 ance of such an agreement. 
 In Surcombe v. Pinninger, 3 De 
 
316 NCrPTIAL SETTLEMENTS. 
 
 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.^ 
 A settlement in consideration of a previous marriage, with- 
 out the recital of any articles, is a voluntary settlement.^ 
 
 § 277. In Consideration of Portion. — If after 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.^ 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 
 promise to pay.* If a father secures the portion which 
 his daughter is entitled to under her mother's marriage 
 settlement upon his own estate, and the portion so secured 
 is subsequently paid to the husband, it is a valuable con- 
 sideration for a settlement. ° 
 
 § 278. 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.^ If a 
 feme covert, however, is entitled, on account of the mis- 
 conduct of her husband, to obtain a divorce, and to have 
 
 G. M. and G., a father, on the mar- (N. S.) 371; Saunders v. Ferrell, i 
 
 riage of his daughter, promised the Ired. 97. 
 
 intended husband verbally to give ^Beaumont v. Thorp, i Ves. 27; 
 
 them a certain leasehold house. Reade v. Livingston, 3 Johns. Ch. 
 
 Upon the faith of this promise the 481; Deubell- v. Fisher, R. M. 
 
 marriage took place, the father-in- Charlt. 36. But see section 274, 
 
 law gave the son-in-law possession ante, note. 
 
 and the latter expended a large sum Swheeler v. Carjrl, Amb. 121; 
 
 for repairs.' After the death of the Nunu v. Wilsmore,' 8 T. R. 521; 
 
 father-in-law the property was sold, Stileman v. Ashdown, 2 Atk. 477, 
 
 and a dispute as to the money aris- 607; s« c. Ambl. 13; Jones v. Marsh, 
 
 ing between the husband and the Cas. temp. Talb. 64; Anon. Free. Ch. 
 
 deceased's estate, it was held that loi; Russell v. Hammond, I Atk. 
 
 there had been part performance 14; Ramsden v. Hylton, 2 Ves. Sr. 
 
 sufficient to take the case out of the 304; Gardner v. Painter, Cas. temp, 
 
 statute of frauds. King, 65; Brown v. Jones, I Atk. 188. 
 
 In Ungley v. Ungley, 4Ch. D. 73; 4Brown v. Jones, i Atk. 188. 
 
 8. i;. 5 Ch. D. 887, there was a simi- ewheeler v. Caryl, Amb. 121. 
 
 lar decision. BMorgan v. Potter, 24 N. Y. Supr. 
 
 iMurphy v. Abrahams, 15 Ir. Eq. 403. 
 
NUPTIAL SETTLEMENTS. 317 
 
 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.^ On 
 account of the disability which at common law prohibited 
 the husband and his wife from making a valid contract 
 with each other, a deed of separation is always made 
 through the intervention of a trustee.^ A covenant by the 
 trustee to indemnify the husband against any claim for 
 alimony^ or the debts which the wife may contract after 
 the separation is a valuable consideration for the settle- 
 ment.* If the trustee does not execute the deed of sepa- 
 ration,^ or omits to indemnify the husband against any 
 claim for alimony or the debts of the wif e,^ the settlement 
 is without a valuable consideration to support it. A com- 
 plete condonation immediately after the execution of a 
 deed of separation takes away all consideration therefor 
 and leaves it a voluntary settlement.'^ 
 
 § 279. Contract between Husband and Wife.^ — A husband 
 may, either with^ or without^" the intervention of a trustee, 
 enter into a contract with his wife for a valuable con- 
 sideration, and a settlement macfe in pursuance of such an 
 agreement will be good against prior as well as subsequent 
 creditors. Such settlements, however, are always watched 
 
 iHobbs V. Hull, I Cox, 445. SBank v. Lee, 13 Pet. 107; Arun- 
 
 2Legard z*.. Johnson, 3 Ves 352. dell w. Phipps, 10 Ves. 139; Duffy v. 
 
 SWorrall v. Jacob, 3 Mer. 256. Insurance Co., 8 S. & R. 413. 
 
 ^Stephens v. Olive, 2 Brock, go; lOSchaffner v. Renter, 37 Barb, 
 
 Worrall v. Jacob, 3 Mer. 256; Wells 44; Wickes v. Clarke, 8 Paige, i6i; 
 
 V. Stout, 9 Cal. 479; King v. s. c. 2 Ed w. Ch. 58; Babcock v. 
 
 Brewen,2Brock. 93note; Hargroves Eckler, 24 N. Y. 623; Stockett z/. 
 
 V. Meray, 2 Hill Ch. 222. Holliday, 9 Md. 480; Dygert v. Rem- 
 
 SLegard v. Johnson, 3 Ve». 352; erschneider, 32 N. Y. 629; s. c. 39 
 
 Wells V. Stout, 9 Cal. 479. Barb. 417; Bullard v. Briggs, 24 
 
 eCropsey v. McKinney, 30 Barb. Mass. 533; Bank v. Brown, Riley 
 
 47; Pitzer V. Fitzer, 2 Atk. 511; Ch. 131; s. c. 2 HillCh. 558; Miller 
 
 Nunn V. Wilsmore, 8 T. R. 521; z/. Tolleson, Harp. Ch. 145; Barron 
 
 Clough V. Lambert, 10 Sim. 174. v. Barron, 24 Vt. 375; Steadman v. 
 
 ^Kehrz/. Smith, 20 Wall. 31; s.c. Wilbur, 7 R. I. 481; Syracuse 
 
 2 Dili. 50; s. c. 7 N. B. R. 97; s. c. Chilled Plow Co. v. Wing, 27 N. Y. 
 
 10 N. B. R. 49. Supr. 206; s. c. 85 N. Y. 421. 
 
 ^Seeposi, section 286. 
 
318 NUPTIAL SETTLEMENTS. 
 
 witli considerable jealousy, on account of tlie 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.^ 
 
 § 380. Wife's Property. — Whether the consideration is 
 valuable will depend upon its character. By the common 
 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,^ unless she was allowed by him to retain her 
 separate estate.* If her choses in action have been reduced 
 to possession, they belong absolutely to him, and do not 
 constitute a valuable consideration any more than her 
 personal property.^ 
 
 § 281. A Wife's Choses in Action. — A chose in action which 
 is not reduced to possession remains the property of t]ie 
 
 iBlow z/. Maynard, 2 Leigh. 29; Rice Eq. 389; Beach w. White, Walk. 
 
 Alston V. Rowles, 13 Fla. 117; Ch. 495; Briggs z/. Mitchell, 60 Barb. 
 
 Campbell v: Waters, 12 La. An. 193; 288; Smith v Duncan, 2 Pitts. L. J. 
 
 Bogan V. Finlay, 19 La. An. 94; 186; Dick v. Hamilton, i De'ady 
 
 Hoxie V. Price, 31 Wis. 82; Booher 322; Alston v. Rowles, 13 Fla. 117; 
 
 tJ. Worrill, 57 Geo. 235; Thompson Gicker v. Martin, so Penn. 138; 
 
 V. Feagin, 60 Geo. 82; Dresher v. Howe v. Colby, 19 Wis. 583; Allen 
 
 Corson, 23 Kans. 313; Tomlinson v. v. Walt, 9 Heisk. 242. 
 Matthews, 98 111. 178. ^Woodworth v. Sweet, 51 N. Y. 
 
 ^Alston w. Rowles, 13 Fla. 117; 8; s. c. 44 Barb. 268; Jayco'x z/. Cald- 
 
 WilBon w. Silkman, 97 Penn. 509; well, 51 N. Y. 395; s. c. 37 How. Pr. 
 
 Monteith v. Bax, 4 Neb. 166; Hor- 240. 
 
 ton V. Dewey, 53 Wis. 410; Mc- BWylie v. Basil, 4 Md. Ch. 327; 
 
 Ginnis v. Curry, 13 W. Va. 29; Whittlesey v. McMahon, lo Conn. 
 
 Fisher v. Shelver, 53 Wis. 498; 137; Pierce v. Thompson, 34 Btass. 
 
 Warren z/. Ranney, 50 Vt. 653. 391; Hurdt v. Courtenay, 4 Met. 
 
 SHarvey v. Alexander, 1 Rand. (Ky.) 139; Briggs v. Mitchell, 60 
 
 219; Farmers' Bank z/. Long, 7 Barb. 288; Lewis v. Caperton, 8- 
 
 Bush, 337; Lewis v. Caperton, 8 Gratt. 148; Barker v. Woods, i 
 
 Gratt. 1:48; Coates v. Gerlach, 44 Sandf. Ch. 129; Hatch v. Gray, 21 
 
 Penn. 43; Lyne v. Bank of Ky., 5 J. Iowa, 29; Glass v. Farmer, 10 Heisk. 
 
 J. Marsh. 545; Bank v. Mitchell, i 551. 
 
NUPTIAL SETTLKMENTS. 
 
 319 
 
 wife, and does not vest in the husband by the marriage. 
 The marital right does not extend to the property while a 
 chose in 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- 
 sideration for a contract with her.^ So, also, if her money 
 is in the hands of another who withholds it until the hus- 
 band makes a provision for her, it will support the settle- 
 ment.^ 
 
 § 282. Right to Settlement. — If her property is only re- 
 coverable in equity,^ or has come to her during coverture 
 by gift or inheritance,* she is entitled to a settlement, which 
 a court of equity will invariably enforce in favor of the 
 wife, and even the children of the marriage, against the 
 husband and all claiming under him, such as assignees or 
 creditors. The same circumstances which would induce 
 
 IBlake v. Jones, i Bailey Ch. 141; 
 Trapnell v. Conklyn, 37 W. Va. 242, 
 38 Am. St. Rep. 30, 16 S. E. 57o; 
 Gall ego 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 
 V. Bigelow, 45 N. H. 343; Wheeler 
 V. Emerson, 44 N. H. 182; Ready v. 
 Bragg, I 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 ®. Bull, 3 Strobh. Eq. 86; Es- 
 tate of Donnelly, 2 Phila. 51; Barron 
 V. Barron, 24 Vt. 375; Standiford v. 
 Devoe,2l Ind. 404; Stoner v. Com- 
 monwealth, 16 Penn. 387; Coffin v. 
 Morrill, 22 N. H. 352; vide Allen v. 
 Allen, 6 Ired. Eq. 293; Dold v. 
 Geiger, 2 Gratt. 98. 
 
 SBrown v. Jones, i Atk. 188; Mid- 
 dlecome v. Marlow, 2 Atk. 519; 
 Pott V. Todhunter, 2 Coll. 76; Gas- 
 sett V. Grout, 45 Mass. 486; Bank v. 
 
 Brown, Riley Ch. 131; s. c. 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 Robi- 
 nett's Appeal, 36 Penn. 174, 
 
 3Wheeler v. Caryl, Amb. 121; 
 Legard v. Johnson, 3 Ves. 352; 
 Moore v. Rycault, Prec, Ch. 22; 
 Bank «. Brown, Riley Ch. 131; s. c. 
 2 Hill Ch. 558; Poindexter v. Jef- 
 fries, 15 Gratt. 363; Marshall v. Mc- 
 Daniel, 8 B. Mon. 175; Spirett v. 
 Willows, 3 De J. G. & S. 293; s. c. 
 II Jur. (N. S.) 70; 34 I^- J- Ch. 365; 
 L. R. I 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 f. Scott, 
 Moseley, 336; Smith v. Greer, 3 
 Humph. 118; Bank v. Brown, Riley 
 Ch. 131; s. c. 2 Hill Ch. 558; Mc- 
 Cauley v. Rodes, 7 B. Mon. 462. 
 
320 NUPTIAL SETTLEMENTS. 
 
 a court of equity to compel a settlement by tlie liusband 
 or those claiming under him or in his right, will operate 
 to uphold a settlement already made to the same extent 
 that would be required if one should be directed to be 
 made under the view of the court, for the parties may do 
 voluntarily what the law would 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.^ If it is reasonable at the time it is made, 
 it will not be impaired by subsequent acquisitions.^ 
 
 § 283. Wife's Separate Estate. — Her land^ or separate 
 estate* constitutes a valuable consideration for a settle- 
 ment. If the husband's creditors levy upon his life estate 
 in her lands she may convey a portion of the ground to 
 them as a consideration to induce them to unite with her 
 in a transfer of the residue to a trustee for her benefit.^ 
 If her father makes a mistake as to the effect of a gift of 
 land to her and her husband, they may unite in a sur- 
 render, and the property may then be given to her." If 
 her husband converts her separate property to his own 
 use without her consent, this will be a good consideration 
 for a transfer by him.^ So, also, in case he purchases 
 property with her separate funds, and takes the title in 
 
 IPoindexter z/. Jeffries, 15 Gratt. lett, 2 Ves. Sr. 16; Bank v. Brown, 
 
 363- Riley Ch. 131; s. c. 2 Hill Ch. 558; 
 
 SMarshall v. McDaniel, 8 B. Mon. Acraman v. Corbett, i J. & H. 410; 
 
 175- Butler v. Ricketts, 11 Iowa, 107; 
 
 SCollege V. Powell, 12 Gratt. 372 
 Clerk V. Nettlestrip, 2 Levinz, 148 
 Latimer v. Glenn, 2 Bush, 535 
 
 Woodworth v. Sweet, 44 Barb. 268; 
 s. c. 51 N Y. 8; Kendrick z/. Taylor, 
 27 Ark. 6q5; Lormore v. Campbell, 
 
 Wilson V. Ayer, 7 Me. 207; Duffy z/. 60 Barb. 62; Butterfield v. Stanton, 
 
 Insurance Co., 8 S. & R. 413; Bar- 44 Miss. 15; Sweeney ». Damron, 47 
 
 nett V. Goings, 8 Blackf. 284; 111. 450; McLaurie v. Partlow, 53 
 
 Peiffer v. Lytle, 58 Penn. 386; Lee 111. 340; White v. Sansom, 3 Atk. 
 
 V. Hollister, 5 Fed. Rep. 750. 410; Hussey v. Castle, 41 Cal. 239; 
 
 «Savage v. O'Neil, 44 N. Y. 298; Teller v. Bishop, 8 Minn. 226; Mon- 
 
 Stockett V. Holliday, 9 Md. 480; roe z/. May, 9 Kans. 466. 
 
 Bank v. Lee, 13 Pet. 107; Cottle v. BRubbard v. Remick, lo Me. 140. 
 
 Tripp, 2 Vern. 220; Taylor w. Her- 6Barncord ». Kuhn, 36 Penn. 383. 
 
 iott, 4 Dessau. 227; Ward v. Shal- 7 Wiley z/. Gray, 36 Miss. 510. 
 
NUPTIAL SETTLEMENTS. 
 
 321 
 
 Ms own name, he may subsequently convey it to her, for 
 this is only what the law would compel him to do.^ 
 
 § 284. Joining in SettlemeAt.— 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.^ 
 
 § 285. Contingent Bight of Dower. — The relinquishment 
 of a homestead right,^ or the release of a contingent right 
 of dower, is a valuable consideration.* A release without 
 any promise,^ or upon a mere expectation® of a recompense, 
 or a mere promise to release,^ is not a valuable considera- 
 tion; but if the relinquishment is made on the faith of a 
 promise, the transfer may be subsequent." 
 
 § 286. 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 Wilson V. Sheppard, 28 Ala. 623. 
 
 SHannan v. Richards, 10 Hare, 
 81; Acraman v. Corbett, i Ji & H. 
 410; Russell V. Hammotid, i Atk. 
 14. 
 
 SG-wyer v. Piggins, 37 Iowa, 317. 
 
 ^Marshall v. Hutchinson, 5 B. 
 Mon. 298; Jones v. Boulter, i Cox, 
 288; Unger v. Price, 9 Md. 552; 
 EUinger v. Crowl, 17 Md. 361; 
 Wright V. Stannard, 2 Brock. 311; 
 BuUard v. Briggs, 24 Mass. 533; 
 Quarles ». Lacy, 4 Munf. 251; Har- 
 rison V. Carroll, 11 Leigh, 476; Bank 
 0. Brown, Riley Ch. 131; s. c. 2 Hill 
 Ch. 558; Harvey v. Alexander, i 
 Rand. 219; College v. Powell, 12 
 Gratt. 372; HoUowell 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, i Deady, 322; Hoot v. 
 Sorrell, 11 Ala. 386; Motley v. Saw- 
 yer, 38 Me. 68; Patrick v. Patrick, 
 77 111- 555; Singree v. Welch, 32 
 Ohio St. 320; Reiff v. Eshleman, 52 
 Md. 582; Prewitt v. Wilson, 103 U. 
 
 S. 22; s. c. 3 Woods 631; Blum v. 
 Light, 81 Tex. 414, 16 S. W. 1090; 
 citing this section. But a release of 
 dower by the wife directly to the 
 husband is not a valuable consider- 
 ation for the wife has no power to 
 make such a release during cover- 
 ture. Le Saulnier v. Krueger, , 85 
 Wis. 214, 54 N. W. 714; Wilber v. 
 Wilber, 52 Wis. 298, 9 N. W. 163; 
 Leach V. Leach, 65 Wis. 284, 26 N. 
 W. 754- 
 
 But compare Ficklin v. Rixey, 89 
 Va. 832, 17 S. E. 325- 
 
 &Woodson V. Pool, 19 Mo. 340; 
 Taylor v. Moore, 2 Rand. 563. 
 
 BLewis V. Caperton, 8 Gratt. 148. 
 
 ^Harrison v. Carroll, 11 Leigh, 
 476. 
 
 SCoUege V. Powell, 12 Gratt. 372; 
 Brown v. Rawlings, 72 Ind. 505. 
 
 SLyne 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. Rid- 
 dell, 55 111. 261; Hill V. Wynn, 4 W. 
 Va. 453; Carpenter v. Carpenter, 25 
 N. J. Eq. 194- 
 
322 
 
 NUPTIAL SETTLEMENTS. 
 
 Even, the appropriation of tier 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;^ 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.^ But if there is a 
 
 IKuhn V. Stansfield, 28 Md. 210; 
 Blow V. Maynard, 2 Leigh, 29; 
 Wickes.z/. 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. Rosenkrans, 31 
 N. J. Eq. 665; Luers v. Brunges, 34 
 N. J. Eq. 19, 561; Humes z/. Scruggs, 
 94 U. S. 22; Fatten v. Gates, 67 111. 
 174; Odell V. Flood, 8 Ben. 543; 
 Monteitli v. Bax, 4 Neb. 166; Wake 
 V. Griffin, 9 Neb. 47; McGinnis v. 
 Curry, 13 W. Va. 29; Warren v. 
 Ranney, 50 Vt. 653; Russell v. 
 Thatcher, 2 Del. Ch. 320. 
 
 2"The law will not, from the 
 mere delivery by her of her money 
 to him, or from the permitted re- 
 ceipt by him of her separate in- 
 come, imply a promise by him to 
 repay her, but will require more, 
 either an express promise or cir- 
 cumstances of proof that in such 
 matter they dealt with each other 
 as debtor and creditor." Steadman 
 V. Wilbur, 7 R. I. 481. 
 
 "She cannot, when her husband 
 becomes insolvent, convert into 
 
 debts, as against his creditors, the 
 former delivery to him of her money 
 or other property, or the permitted 
 receipt by him of the income or 
 proceeds of sale of her separate 
 estate, which, at the time of such 
 delivery or receipt, were intended 
 by her as gifts to assist him in his 
 business, or pay their common ex- 
 penses of living." Ibid. 
 
 "It would be exceedingly danger- 
 ous to the business world to have a 
 loose principle in this matter, and 
 would open a wide door for the de- 
 feat of honest creditors. A hus- 
 band and wife embark on the 
 voyage of life together, expecting 
 to meet the waves together, devo- 
 ting to the support of themselves 
 and children, and to his success, 
 their common efforts and their 
 several means. She is always will- 
 ing, from affection for her husband 
 and interest in his success, to ex- 
 tend him the help of her means, his 
 business interests being in a large 
 sense her interests, never expecting 
 any return of the means she com- 
 
NUPTIAL SETTLEMENTS. 
 
 323 
 
 promise to repay her, that is a sufficient consideration to 
 support a: subsequent conveyance.^ An express promise 
 however is not indispensable. Inferential proof is not to 
 be rejected upon such 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.^ Nor is it neces- 
 
 mits to his hands; and if, after he 
 has had these means employed in 
 his business for years, mingled in- 
 discriminately with his, it were per- 
 mitted to her, when misfortune 
 overtakes him, to raise up loans to 
 the prejudice of his creditors and 
 support them by his own and her 
 evidence, after creditors had trusted 
 him in total ignorance of such 
 loans, and he were allowed to use 
 his means in purchasing real estate 
 in her name, a wide road would be 
 opened for the promotion of wrong 
 against honest creditors." Kana- 
 wha Valley Bank v. Atkinson, 32 
 W. Va. 203, 25 Am. St. Rep. 806, 9 
 S. E. 175. See also Driggs v. Nor- 
 wood, 50 Ark. 42, 7 Am. St. Rep. 78, 
 6 S. W. 323; Hanson v. Manley, 72 
 la. 48, 33 N. W. 357; Edelin v. 
 Edelin, 11 Md. 415; Jenkins v. Mid- 
 dleton, 68 Md. 540, 13 Atl. 155; Es- 
 tate of Hauer, 140 Pa. St. 420, 23 
 Am. St. Rep. 245, 21 Atl. 445; 
 McClure v. Lancaster, 24 S. C. 273; 
 Beecher v. Wilson, 84 Va. 913, 10 
 Am. St. Rep. 883, 6 S. E. 209; 
 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. 
 
 ^Syracuse Chilled Plow Co. v. 
 Wing, 83 N. Y. 421; s. c. 27 N. Y. 
 Supr. 206; Brookville Nat'l Bank 0. 
 Trimble, 76 Ind. 195; Van Kleeckz;. 
 Miller, 19 N. B. R. 484. 
 
 And the mere fact that the hus- 
 band manages his wife's separate 
 estate as his own will not render it 
 liable to the claims of his creditors. 
 Second Nat'l Bank v. Merrill, 81 
 Wis. 151, 29 Am. St. Rep. 877, 50 N. 
 W. 505; Dean v. Bailey, 50 111. 481-, 
 99 Am. Dec. 533. 
 
 The fact that a husband loans 
 his wife money to make a payment 
 on property purchased by her does 
 not give the husband any interest 
 in the property. Flournoy v. Plour- 
 noy, 86 Cal. 286, 21 Am. St. Rep. 39, 
 24 Pac. 1012; Morgan v. Lones, 80 
 Cal. 317, 22 Pac. 253. 
 
 SSteadman v. Wilbur, 7 R. I 481; 
 Gicker v. Martin, 50 Penn. 138. 
 
324 NUPTIAL SETTLEMENTS. 
 
 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 in confidence.^ 
 
 § 287. How far Talid. — When a settlement is valid, the 
 increase^ and property purchased with the proceeds of 
 the estate settled are within its protection.^ A defective 
 settlement, which is otherwise valid, is good in equity 
 against the creditors.* 
 
 § 288. Purchases by Feme Covert. — The possession of the 
 wife is prima facie the possession of the husband, and 
 consequently raises a presumption of ownership in him.^ 
 In case of a purchase by a wife during coverture, the 
 burden is upon her to prove distinctly that she paid for 
 the thing purchased with funds that were not furnished 
 by the husband. Evidence that she 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,^ 
 
 iSteadman z/. Wilbur, 7 R. 1. 481. z'. Nease, 37 Penn. 433; Mercer v. 
 
 SHazelinton v. Gill, 3 T. R. 620, Miller, 5 Fla. 277; Parvin v. Cape- 
 note; s. c. 3 Doug. 415; Hoot V. Sor- well, 45 Perm. 89; Gault v. Saffin, 44 
 rell, II Ala. 386. Perm. 307; Rhodes v. Gordon, 38 
 . Sjarman v. Woolloton, 3 T. R. Penn. 277; Aurand v. Shaffer, 43 
 618; Blanchard v. IngersoU, 4 Dall. Penn. 363; Flick v. Devries, 50 
 305; Wiemau v. Anderson, 42 Penn. Penn. 266; Earl v. Champion, 65 
 311; Conrad ». Shomo, 44 Penn. 193; Penn. 191; Tripner v. Abraham, 47 
 Brown v. Pendleton, 60 Penn. 419; Penn. 220; Auble v. Mason, 35 Penn. 
 Yardley v. Raub, 5 Whart. 117. 261; Raines v. Woodward, 4 Rich. 
 
 *Brown v. Jones, I Atk. 188. Eq. 399; Mangum v. Finucane, 38 
 
 BPrimrose v. Browning, 59 Geo. Miss. 354; Rose v. Brown, 11 W. Va. 
 
 69; Eeley z/. Faith, 4 Bradw. 275. 122; Hinkle v. Wilson, 53 Md. 
 
 ewinter v. Walter, 37 Penn. 155; 287; Seitz v. Mitchell, 94 U. S. 
 
 G;amber v. Gamber, 18 Penn. 363; 580; Bisson w. Eveland, 26 N. J. Eq. 
 
 Keeney v. Good, 21 Penn. 349; Wal- 468; Post v. Stiger, 29 N. J. Eq. 
 
 ker V. Reamy, 36 Penn. 410; Black 554; Clark v. Rosenkrans, 31 N. J. 
 
SUBSEQUENT CREDITORS. 325 
 
 especially if the husband makes the purchase.^ 
 
 CHAPTER XIII. 
 
 SUBSEQUENT CREDITORS. 
 
 § 289. Bights at Common Law.— In Twyne's Case'^ it is 
 said that by the common law an estate made by fraud can 
 be avoided only by him who has a former right, title, 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, however, 
 that these remarks, as far as they affect subsequent credit- 
 ors, are mere dicta, and not supported by any decided 
 case. It (s, moreover, diificult to perceive upon what 
 ground they rest. Even at the common law fraud vitiates 
 every transaction into which it enters, and fraud accompa- 
 nied with damage always gives a right of action. These 
 well-recognized principles are sufficient to protect even 
 subsequent creditors. The better doctrine, therefore, even 
 in this respect, is that the principles and rules of the com- 
 mon law as now known and understood would have attained 
 every end proposed by the statute.^ The principles, how- 
 ever, had not been previously recognized and applied, and 
 the statute thus had the effect of introducing new principles. 
 
 Eq. 665; Stanton ». Kirseh, 6 Wis. Am. St. Rep. 664, 2 S. E. 780; Her- 
 
 338; Horneffer v. Duress, 13 Wis. zog v. Weiler, 24 W. Va. 199; 
 
 603; Duress v. Horneffer, 15 Wis. Brooks z/. Applegate, 37 W. Va. 373, 
 
 195; Lins V. Lindhardt, Mo., 29. S. 16 S. E.-585; Carson v. Stevens, 40 
 
 W. 1025; Schuster v. Bauman Jew- Neb. 112, 42 Am. St. Rep. 66r. 
 elry Co., 79 Tex. 179, 23 Am. St. iConway v. Brown, 5 Tenn. 237. 
 
 Rep. 327; 15 S. W. 259; Walker's 23 Co. 80. 
 
 Adm. V. Peck, 39 W. Va. 325; ^Cadogan v. Kennett, 2 Cowp. 
 
 McMasters v. Edgar, 22 W. Va. 673; 432. 
 Burt V. Timmons, 29 W. Va. 441, 6 
 
326 SUBSEQUENT OREDITOES. 
 
 § 290. 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 the statute seem to be so 
 general in order to take in all persons who shall be in any 
 way hindered.^ 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.^ 
 
 § 291. Kind of Intent. — The intent which will in general 
 make such a transfer void is an actual intent to defraud, 
 and must be proved,^ and the burden of proof rests upon 
 the subsequent creditor.* It is not necessary, however, 
 
 ITaylorw. Jones, 2 Atk. 6oo. v. Lord, 2 N. Y. 269; McPherson v. 
 
 ^Littleton v. I/ittleton, i Dev. & Kingsbaker, 22 Kans. 646; Cole v. 
 
 Bat. 327; Ridgeway v. Underwood, Terrell, 71 Tex. 549, 556, 9 S. W. 
 
 4 Wash. C. C. 129; Howe v. Ward, 668, citing this section with ap- 
 
 4 Me. 195; Shontz v. Brown, 27 proval. 
 
 Penn. 123; Black z/. Nease, 37 Penn. 'iReid v. Gray, 37 Penn. 508; 
 
 433; Russell V. Stinson, 3 Heyw. Horn v. Ross. 20 Geo. 210; Cole v. 
 
 i; New Haven Steamboat Co. v. Varner, 31 Ala. 244; Lynch v. 
 
 Vanderbilt, 16 Conn. 420; Cook v. Raleigh, 3 Ind. 273; Nicholas v. 
 
 Johnson, 12 N. J. Eq. 51; National Ward, 1 Head, 323; Blake ». Jones, 
 
 Bank v. Sprague, 20 N. J. Bq. 13; i Bailey Ch. 141; Rivers v. Thayer, 
 
 Barling ». Bishopp, 29 Beav. 417; 7 Rich. Eq. 136; MatthaiV. Heather, 
 
 Stileman v. Ashdown, 2 Atk. 477, 57 Md. 483; Jackson v. Plyer, 38 S. 
 
 607; s. c. Ambl. 13; Murphy v. C. 496, 498, 37 Am. St. Rep. 783, 
 
 Abraham, 15 Ir. Eq. (N. S.) 371; 784; Walker z;. Bollman, 22 S. C. 512- 
 
 Miller v. Wilson, 15 Ohio, 108; 531; Rudy v. Austin, 56 Ark. 73, 
 
 Anon. 1 Wall. Jr. 107; Lyman v. 35 Am. St. Rep. 85, 19 S. W. iii; 
 
 Cessford, 15 Iowa, 229; Bogard v. Horbach v. Hill, 112 U. S. i44-i49> 
 
 Gardley, 12 Miss. 302; Williams v. 5 S. Ct. 81. 
 
 Banks, 11 Md. 198; s. c. 19 Md. 22; 41,oeschigk v. Hatfield, 5 Robt. 
 
 tr. S. V. Steiner, 8 Blatch. 544; Hil- 26; s. c. 4 Abb, Pr. (N. S.) 210; 51 N. 
 
 Hard v. Cagle, 46 Miss. 309; Candee Y. 660; Nicholas v. Ward, i Head, 
 
SUBSEQUENT CREDITORS. 
 
 327 
 
 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.-^ Some of 
 the usual badges are the omission to record the convey- 
 ance,^ possession of the property and obtaining a false 
 credit thereby,^ the subsequent erection of improvements,* 
 the magnitude of the conveyance compared with the 
 grantor's means,^ the existence of prior debts at the time 
 of the transfer,® the concealment^ of the transfer, the im- 
 mediate engagement in a hazardous business,^ and the 
 
 323; Hagerman v. Buchanan, 45 N. 
 J. Eq. 292, 14 Am. St. Rep. 732, 17 
 Atl. 946. 
 
 IHutchinson 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 z/. Henderson, 8 Miss. 
 539i 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. 
 
 2l/yman 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.. Ii. 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, I Rob. 499; Dick v Hamil- 
 ton, Deady, 322; City Nat'l Bank v. 
 Hamilton, 34 N. J. Eq. 158; Piatt v. 
 Mead, 9 Fed. Rep. gi; Crawford v. 
 Logan, 97 111. 396. See section 52 
 ante 
 
 SPell V, Tread well, 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, i Bald. 528; 
 
 Carter v. Grimshaw, 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. 
 
 5Belford v. Crane, 16 N. J. Eq. 
 265; Rivers v. Thayer, 7 Rich. Eq. 
 136. See section 248 ante. Case v. 
 Phelps, 39 N. Y. 164; Smith v. 
 Vodges, 92 U. S. 183; Fisher v. 
 Lewis, 69 Mo. 631; Black v. Nease, 
 37 Pa. St. 438. 
 
 BRichardson v. Rhodus, 14 Rich. 
 95; Huggins V. Perrine, 30 Ala. 396; 
 Redfield v. Buck, 35 Conn. 328; 
 Pawley v. Vogel, 42 Mo. 291. 
 
 7Hungerford v. Earle, 2 Vern. 
 261; Sands v. Hildr'eth, 2 Johns. Ch. 
 35; s. u. 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, I Bailey, 337, 587; Snyder v. 
 Christ, 39 Penn. 499; Mixell v. 
 Lutz, 34 111. 382; Roberts v. Gibson, 
 6 H. & J. 116. See section 52 ante. 
 
 SMullen v. Wilson, 44 Penn. 413; 
 Thomson ®. Dougherty, 12 S. & R. 
 448; Beeckman v. Montgomery, 14 
 N. J. Eq. 106; Cramer v. Reford, 17 
 N. J. Eq. 367; Carpenter v. Roe, 10 
 N. Y. 227; Case v. Phelps, 39 N. Y. 
 164; Lyne v. Bank of Ky., 5 J. J. 
 Marsh. 545; Mackay v. Douglass, 26 
 
328 SUBSEQUENT CREDITORS. 
 
 contracting of debts immediately after the transfer.^ 
 
 § 292. 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.^ 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.^ The mere intent to keep the property from 
 subsequent creditors is not alone sufficient. N"o convey- 
 ance can be made which may not in certain contingencies 
 tend to put property beyond the reach of the creditors of 
 the grantor, and the happening of such contingencies may 
 be reasonably supposed to be within contemplation of 
 every person who does not intend to withdraw himself 
 from the active pursuits of life. But such a conveyance 
 is not for that reason void as against subsequent creditors, 
 unless it is also made with a design to defraud them.* 
 The conveyance must be made with an intent to put the 
 
 L. T. (N. S.) 71; s. c. t,. R. 14 Eq. 456; ChurcHU v. Wells, 7 Cold. 364; 
 
 106; Hilliard v. Cagle, 46 Miss. 309; Ware v. Gardner, L. R. 7 Eq. 317; 
 
 Williams v. Davis, 69 Penn. 21; 17 W. R. 439; Mackay z/. Douglas, 
 
 Carpenter v. Carpenter, 25 N. J. 26 L. T. (N. S.) 71; s. c. L. R. 14 Eq. 
 
 Eq. 194; Hawley v. Sackett, 6 N. Y. 106; Carter v. Grimshaw, 49 N. H. 
 
 Supr. 322; Fisber v. Ivewis, 69 Mo. 100; Mellon v. Mulvey, 23 N. J. Eq. 
 
 629; Burdick v. Gill, 7 Fed. Rep. 198; City Nat'l Bank v. Hamilton,' 
 
 668. See section 254, anU: Schreyer 34 N. J. Eq. 158; Clark v. Killian, , 
 
 V. Scott, 134 U. S. 405-411, 10 S. Ct. 103 U. S. 766; s. c. 3 MacArthur, 
 
 579- 379' 
 
 iBarling v. Bishopp, 29 Beav. 2i,yman v. Cessford, 15 Iowa, 
 
 417; Case V. Phelps, 39 N. Y. 164; 229; Cole v. Terrell, 71 Tex. 549- 
 
 Bnllitt V. Taylor, 34 Miss. 708; 556, 9 S. W. 668, quoting this sec- 
 
 Lyman v. Cessford, 15 Iowa, 229; tion. 
 
 Snyder v. Christ, 39 Penn. 499; ssnyder v. Christ, 39 Penn. 499; 
 
 Mason v. Rogers, i Root, 324; Williams v. Davis, 69 Penn. 21; 
 
 Thomson v. Dougherty, 12 S. & R. Harlan?/. Maglanghlin,90 Penn. 293. 
 
 448; Herschfeldt v. George, 6 Mich. ^Smith v. Tatton, 6 L. R- Ir. 32. 
 
SUBSEQUENT CREDITORS. 329 
 
 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.^ 
 
 § 293. 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- 
 sequent creditor.^ 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.^ 
 
 § 294. Not Mere Voluntary Conveyance. — A voluntary con- 
 veyance made in good faith, and valid against creditors 
 whose debts exist at the time of its execution, is also valid 
 
 IWinchester v. Charter, 94 Mass. 668; Doesche v. Nette, 81 Tex. 265, 
 
 606; s. c. 97 Mass. 140; s. c. 102 16 S. W. 1013; Newberger v. Keim, 
 
 Mass. 272. 134 N. Y. 35, 31 N. E. 268; Schreyer 
 
 2Churchill v. Wells, 7 Cold. 364; v. Scott, 134 U. S. 40S. 10 S. Ct. 579- 
 Beeckman v. Montgomery, 14 N. J. SChurchill v. Wells, 7 Cold. 364; 
 Eq. 106; Barling v. Bi-sliopp, 29 Moore v. Blondheim, 19 Md. 172; 
 Beav. 417; Case v. Phelps, 39 N. Y. Mellon v. Mulvey, 23 N. J. Eq. 198J 
 164; Bullitt ». Taylor, 34 Miss. 708; White v. Beltis, 9 Heisk. 645; Bur- 
 Mellon V. Mulvey, 23 N. J. Eq. dick z/. Gill, 7 Fed. Rep.' 668; Piatt 
 198; WoodrufE &. Ritter, 26 N. J. Eq. w. Mead, 9 Fed. Rep. 91; Levering 
 86; -White v. Beltis, 9 Heisk. 645; z/. Norvell, 9 Baxter, 176. 
 Cole V. Terrell, 71 Tex. 549, 9 S. W. 
 
330 
 
 SUBSEQUENT CREDITORS. 
 
 against subsequent creditors.^ In such a case the character 
 
 iShaw V. Standish, 2 Vern. 226; 
 Kipp V. Hanna, 2 Bland, 26; Kid- 
 ney V. Coussmaker, 12 Ves. 136; 
 Sagitary v. Hide, 2 Vern. 44; Wal- 
 ker V. Burrows, i Atk. 93; Town- 
 send V. Windham, 2 Ves. Sr. i; 
 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; Ivormore v. 
 Campbell, 60 Barb. 62; Place v. 
 Rliem,7 Bush. 585; Tappan v. Butler, 
 1 Bosw. 480; Pierson v. Heisey, 19 la. 
 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 Miss. 653; John- 
 ston V. Zane, 11 Gratt. 552; Smith 
 V. Littlejohn, 2 McCord, 362; Pep- 
 per V. Carter, 11 Mo. 540; Haskell 
 V. Bakewell, 10 B. Mon. 106; Crum- 
 baugh V. Kugler, 2 Ohio St. 373; 
 Gugen V. Sampson 4 P. & F. 974; 
 Abbott V. Hurd, 7 Blackf. 510; Anon. 
 I Wall. Jr. 107; Ingram v. Phillips, 
 3 Strobh. Ch. 565; Holloway v. Mil- 
 lard, I Madd. 414; Wells v. Stout, 9 
 Cal. 479; Miller v. Johnson, 27 Md. 
 '6; Charlton v. Gardner, 11 I^eigh, 
 281, Thomas v. DeGrafienreid, 17 
 Ala. 602; Cole v. Varner, 31 Ala. 
 244; Waterson v. Wilson, 1 Grant, 
 74; Kid V. Mitchell, i N. & M. 334; 
 Usher v. Hazeltine, 5 Me. 471 ; Stiles 
 V. Lightfoot, 26 Ala. 443; Richard- 
 son 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. Cour- 
 tenay, 4 Met. (Ky.) 139; Lyman v. 
 Cessford, 15 Iowa, 229; Mixell v. 
 Lutz, 34 111. 382; Bohn V. Headley, 
 7 H. & J. 257; Reade v. Livingston, 
 3 Johns. Ch. 481; Bennett v. Bed- 
 ford Bank, 11 Mass. 421; Lyne v. 
 Bank of Kentucky, 5 J. J. Marsh. 
 
 545; Botts V. Cozine, Hoff. 79; Hey 
 V. Niswanger, i McCord Ch. 518; s. " 
 c. I Harp. Ch. 295; Howard v. Wil- 
 liams, I Bailey, 575; Adams v. 
 Adams, i Dane Ab. 628, 636; Loes- 
 chigk z/. 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. I95; Bank 
 V. Patton, 1 Rob. 499; Nicholas v. 
 Ward, I Head, 323; Martin v. Oliver, 
 9 Humph. 561; Jones v. Marsh, Cas. 
 temp. Talb. 64; Todd v. Hartley, 2 
 Met. (Ky.) 206; Eigleberger v. Kib- 
 ler, I Hill Ch. 113; Sexton v. 
 Wheaton, 8 Wheat. 229; Bank v~ 
 Housman, 6 Paige, 526; Cosby v. 
 Ross, 3 J. J. Marsh. 290: Winebren- 
 ner 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. Woodman, 4 Me. 400; Miller, 23 
 Me. 22; Bangor v. Warren, 34 Me. 
 324; Bank v. Ennis, Wright, 605; 
 Henderson v. Dodd, i Bailey Ch. 
 138; Curtis V. Fox, 47 N. Y. 299; 
 Williams v. Davis, 69 Penn. 21; 
 Pratt V. Myers, 56 111. 23; GofE v. 
 Nuttall, 44 Penn. 78; Sanderson v. 
 Streeter, 14 Kans. 458; Clark v. Kil- 
 lain, 103 U. S. 766; s. c. 3 MacAr- 
 thur, 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; Spicerz'. 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 z;. Nash, ,64 
 Ala. 365; Brown v. Vandermeulen, 
 44 Mich. 522; Spence v. Dunlap, 6 
 
SUBSEQUENT CREDITORS. 33l 
 
 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 credit- 
 ors can not be permitted to inquire into the fact whether 
 the consideration expressed is the true consideration. 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 was ac- 
 tually received and paid. The extent and suflSciency of the 
 consideration in reference to the value of the property is 
 only material where the grantor is indebted at the time of 
 the conveyance, and creditors are seeking to set aside the 
 deed on the ground of fraud. But for the mere purpose 
 of conveying the property by an instrument which is to 
 operate under the statute of uses, it is suflBcient if any con- 
 sideration appears upon the face of the conveyance suflB- 
 cient to raise the use, and neither the grantor nor his heir 
 is permitted to aver or prove that the consideration stated 
 therein did not in^fact exist. If such consideration is ex- 
 pressed so as to make a valid deed as against the grantor, 
 it will also be valid against subsequent creditors.^ 
 
 § 295. Yoid against Prior Creditors. — Subsequent credit- 
 ors may, however, impeach a voluntary conveyance by 
 showing -antecedent debts suflBcient in amount to aflford 
 reasonable evidence of a fraudulent intent.^ The mere 
 fact that the conveyance is voluntary does not raise a pre- 
 sumption of fraud in their favor, but they .must prove the 
 intent to delay, hinder, or defraud creditors.^ When they, 
 however, show an intent to defraud antecedent creditors, 
 such proof is prima facie evidence of an intent to defraud 
 
 Lea. 457; Union Mutual Life Insur- 2Mead v. Gregg, 12 Barb. 65.3; 
 
 ance Co. v. Spaids, 99 111. 249; Richardson v. Rhodus, 14 Rich. 95; 
 
 Mutual Life Insurance Co. v. Sand- Huggins v. Perrine, 30 Ala. 396; 
 
 felder, 9 Mo. Ap. 285; Jacjison v. Charlton v. Gardner, II Leigh, 281; 
 
 Myers, loi 111. 550; vide Witherden Doyle z/. Sleeper, i Dana, 531; Red- 
 
 V. Jumper, May on Fraud, 519; field v. Buck, 35 Conn. 328; Pawley 
 
 Peterson v. Williamson, 2 Dev. 326. v. Vogel, 42 Mo. 291. 
 
 iBank of U. S. v. Housman, 6 3Hussey &. Castle, 41 Cal. 239. 
 
 Paige, 526. 
 
332 
 
 SUBSEQUENT CREDITORS. 
 
 subsequent creditors.^ The true principle is, that a fraud- 
 ulent intent against one or more creditors is fraudulent 
 against all, and the statute justifies no other distinction 
 between prior and subsequent creditors than that which 
 arises from the necessity of showing a fraudulent intent 
 against some 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 indebted- 
 ness or a prospective fraud against them only.^ Mere proof 
 of indebtedness, however, is not conclusive. Whether a 
 voluntary conveyance is fraudulent as to subsequent credit- 
 ors is a question that is to be determined from all the cir- 
 cumstances of the transaction.* If the donor is insolvent 
 at the time of the transfer, the conveyance is generally 
 deemed to be void as to subsequent creditors.* 
 
 IHorn V. Volcano Co., 13 Cal. 62; 
 vide Harlan v. Maglaughlin, 90 
 Penn. 293. But a subsequent credit- 
 or cannot avoid a conveyance not 
 intended a«d not operating to 
 defraud him on the ground that it 
 was intended to defraud existing 
 creditors. Bruggeman ». Hoerr, 7 
 Minn. 337, 82 Am. Dec. 97; Stone v. 
 Myers, 9 Minn. 303, 86 Am. Dec. 
 104; Sanders v. Chandler, 26 Minn. 
 273; Hartman v. Weiland, 36 Minn. 
 224, 30 N. W. 815; Bloom V. Moy, 
 43 Minn. 397, 19 Am. St. Rep. 243, 
 45 N. W. 715; Pullington v. North- 
 western I. and B. A., 48 Minn. 490, 
 31 Am. St. Rep. 663, 51 N. W. 475, 
 explaining Walsh v. Byrnes, 39 
 Minn. 527, 40 N. W. 831. 
 
 ^Hutchinson v. Kelly, i Rob. 123; 
 Thomson v. Dougherty, 12 S. & R. 
 448. 
 
 SPayne v. Stanton, 59 Mo. 158. 
 
 *Vertner v. Humphreys, 21 Miss. 
 130; Iley V. Niswanger, i McCord 
 Ch. 518; s. c. I Harp. Ch. 295; Car- 
 penter V. Roe, 10 N. Y. 224; Mad- 
 den V. Day, I Bailey, 337, 587; Par- 
 rishzJ. 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; Part- 
 ridge V. Stokes, 42 How. Pr. 381; 
 s. c. 66 Barb. 586. 
 
 "Mere indebtedness is no evi- 
 dence of fraud as to such credit- 
 ors, but the insolvency of the 
 grantor at the time of the convey- 
 ance is at least ^rjwzayiicze evidence 
 of a fraudulent intent as to them 
 because a transfer of property 
 under such circumstances affords a 
 reasonable ground of presumption 
 that the intention with which it 
 was made was to put beyond the 
 reach of creditors, future as well as 
 present, the property to which they 
 had a right to resort for the pay- 
 ment of their debts. This presump- 
 tion would necessarily arise if the 
 grantor contracted debts imme- 
 diately or as soon thereafter as to 
 show that he reasonably had in 
 c6ntemplation the contraction of 
 such debts at the time the transfer 
 was made." Rudy v. Austin, 56 
 Ark. 73, 35 Am. St. Rep. 85, 19 S. 
 W. III. 
 
SUBSEQUENT CREDITORS. 333 
 
 § 296. 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.^ The mere fact, however, that the prior debts 
 have been paid off will not alone render the transaction 
 valid, though it is entitled to great weight. A great deal 
 will depend upon the mode in which such debts are paid; 
 Paying off one debt by contracting another is not getting, 
 out of debt. Proving, therefore, that the prior debts have 
 "been paid off is doing nothing if in ^o doing the donor 
 has contracted others to an equal amount,^ and is not suffi- 
 •cient. 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 origin- 
 ally put in motion as the cause of its adhesion to the 
 aggregate mass.^ In such instances the subsequent credit- 
 ors are subrogated to the rights of the creditors whose 
 debts their means have been used to pay.* Any other rule 
 would simply permit the debtor to take the property of 
 subsequent creditors and give it to his donee. The doc- 
 
 llngram v. Phillips, 3 Strobh. 636; Antrim v. Kelly, 4 N. B. R. 587. 
 
 Ch. 565; O'Connor v. Bernard, 2 SBrown v. McDonald, 1 Hill Ch. 
 
 Jones, 654; I/yne v. Bank of Ky., 5 297. 
 
 J. J. Marsh. 545; Swenyz/. Ferguson, ^Richardson v. Smallwood, Jac. 
 
 2 Blackf. 129; Freeman z/. Burnham, 552; s. c. I Cond. Ch. 262; Holmes 
 
 36 Conn. 469; Abbott v. Tenney, 18 v. Penney, 3 K. & J. 90; O'Connor 
 
 N. H. 109; Marsh v. Fuller, 18 N. v. Bernard, 2 Jones, 654; Mills v. 
 
 H. 360; King V. Tharp, 26 Iowa, Morris, HofEm. 419; Savage j-. Mur- 
 
 283; Curtis V. Price, 12 Ves. 89 
 Pell V. Tredwell, 5 Wend. 661 
 Hudnal v. Wilder, 4 McCord, 294; 
 
 phy, 34 N. Y. 508; s. c. 8 Bosw. 75; 
 McBlwee v. Sutton, 2 Bailey, 128; 
 Churchill v. Wells, 7 Cold. 364; 
 
 s. c. I McCord, 227; Wilbur v. Madden v. Bay, i Bailey, 337, 587; 
 
 Pradenburgh, 52 Barb. 474; Webb Brown v. M'Donald, i Hill Ch. 297; 
 
 f . Roff, 9 Ohio St. 430; Todd v. Wilson v. Buchanan, 7 Gratt. 334; 
 
 Hartley, 2 Met. (Ky.) 206; Converse Beach v. White, Walk. Ch. 495; 
 
 z/. Hartley, 31 Conn. 372; Claflin v. Whittingtonz'. Jennings, 6 Sim. 493; 
 
 Mess, 30 N. J. Eq. 211. Newlin v. Garwood, i Whart. Dig. 
 
 ^Madden v. Day, i Bailey, 337, 572; Caston v. Cunningham, 3 
 
 587; Mills V. Morris, Hoffm. 419; Strobh. 59; Paulkw. Cooke, 39 Conn. 
 
 Taylor v. Coenen, L. R. i Ch. Div. 566. 
 
334 
 
 SUBSEQUENT CREDITORS. 
 
 trine in regard to change of creditors, with a continuation 
 of indebtedness, only applies, however, when the donor is 
 insolvent at the time of the gift.^ There must be some- 
 thing more than an extensive business whose balances are 
 daily changing sides on his ledger.^ The proof of 
 prior debts must be specific,^ and this proof must also be 
 accompanied by evidence of the donor's inability to pay 
 those debts.* 
 
 § 297. Remedies. — 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.^ Whenever their rights depend upon the 
 existence of prior debts, they must, however, show that 
 there are such.^ As a general rule, when a voluntary con- 
 veyance is set aside at the instance of prior creditors, sub- 
 sequent creditors will participate in the fund.'' 
 
 lAnon. I Wall. Jr. 107; Creed v. 
 Lancaster Bank, i Ohio St. i. . 
 
 2Moritz V. Hoffman, 35 111. 553. 
 
 SSmith V. Greer, 3 Humph. 118; 
 White V. Sansom, 3 Atk. 410. 
 
 *I/oeschigk v. Hatfield, 5 Robt. 
 26; s. c. 4 Abb. Pr. (N. S.) 210; s. c. 
 
 51 N.Y. 660; Wilbur z/.Fradenburgh, 
 
 52 Barb. 474; Hutchinson v. Kelly, 
 I Rob. 123; Bank v. Patton, i Rob. 
 499. 
 
 ^Thomson v. Dougherty, 12 S. & 
 R. 448; Beach v. White, Walk. Ch. 
 495;Hurdtw. Courtenay,4Met.(Ky.) 
 139; Jenkyn v. Vaughan, 3 Drew, 
 419; s. c. 25 I/. J. Ch. 338; Freeman 
 V. Pope, L. R. 5 Ch. 538; s. c. L. R. 
 9 Bq. 206; Skarf v. Soulby, i Me. & 
 G. 364; s. c. 1 H. & Tw. 426; s. c. 16 
 Sim. 344; s c. 19 L. J. Ch. 30; Pratt 
 V. Curtis, 6 N. B. R. 139; Chamley 
 V. Dunsany, 2 Sch. & Lef. 689; vide 
 Ede V. Knowles, 2 Y. & C. (N. S.) 
 172; Tripp V. Vincent, 3 Barb. Ch. 
 613. 
 
 BLush V. Wilkinson, 5 Ves. 384; 
 
 HoUoway v. Millard, i Madd. 414; 
 Manders v. Manders, 4 Ir. Eq. 434; 
 Tripp V. Vincent, 3 Barb. Ch. 613; 
 Kidney v. Coussmaker, 12 Ves. 136. 
 7Ammons' Appeal, 63 Penn. 284; 
 Trimble v. Turner, 21 Miss. 348; 
 Beach v. White, Walk. Ch. 495; 
 Norton v. Norton, 59 Mass. 524; 
 Botts V. Cozine, Hofim. 79; Church- 
 ill V. Wells, 7 Cold. 364; Kidney v. 
 Coussmaker, 12 Ves. 136, note; Iley 
 V. Niswanger, i McCord Ch. 518; s. 
 c. I Harp. Ch. 295; Hargroves v. 
 Meray, 2 Hill Ch.222; Kipp z/.Hanna, 
 2 Bland, 26; Thomson v. Dougherty, 
 12 S. & R. 448; Richardson v. Small- 
 wood, Jac. 552; s. c. I 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, Williams 
 V. Banks, 11 Md. 198; a. c. 19 Md. 
 22; Ward V. Hollins, 14 Md. 158; vide 
 Converse v. Hartley, 31 Conn. 372; 
 Todd V. Hartley, 2 Met. (Ky.) 206.. 
 
SUBS1.5UENT C±ti!,i.x7^..d. 335 
 
 § 298. CoiiTeyance to use of Debtor.— The statutes whicli 
 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 
 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 subse- 
 quent as well as prior creditors.^ A conveyance to the use 
 of the grantor during his life with power to dispose of it 
 by will, or direct its course after his death, is a conveyance 
 to his use, and the property so conveyed is liable to those 
 who deal with him after its execution. A man can not be 
 the equitable owner of property and still have it exempt 
 from his debts.^ -A power of revocation inserted in a deed 
 will not render the property liable to subsequent creditors.^ 
 
 § 299. 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 
 
 iCurtis V. Leavitt, 15 N. Y. 9; s. Watts v. Thomas, 2 P. Wms. 364; 
 
 c. 17 Barb. 309. Casey's Trusts, 4 Ir. Ch. 247; In re 
 
 SMackason's Appeal, 42 Penn. Pearson, L. R. 3 Ch. Div. 807. 
 330; Brinton v. Hook, 3 Md. Ch. sjones v. Clifton, loi U. S. 225; s. 
 
 477; Ford V. Caldwell, 3 Hill (S.C.) c. 18 N. B. R. 125; vide Tarback v. , 
 
 248; Coolidge V. Melvin, 42 N. H. Marbury, 2 Vern. 510. 
 510; Hunters v. Waite, 3 Gratt. 26; 
 
336 SUBSEQUENT CREDITORS. 
 
 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.^ 
 
 § 300. 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 
 the property liable to subsequent creditors.^ A discrimi- 
 nation, however, must be made between the difi'erent 
 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 
 
 IHolmes v. Penney, 3 K. and J. Boutelle, 77 Mass. 217; Hook v. 
 
 90. Mowre, 17 Iowa, 195; Ruffing v. 
 
 SClark V. French, 23 Me., 221; Tilton, 12 Ind. 259; Ward z/. Enders, 
 
 Whitmore v. Woodward, 28 Me. 29 111. 519 ; Davis v. Stern, 15 La. 
 
 392; Damon v. Bryant, 19 Mass. An. 177; King v. Wilcox, 11 Paige, 
 
 411; McL,ane v. Johnson, 43 Vt. 48; 589; Pennington v. Clifton, 11 Ind. 
 
 King V. Wilcox, 11 Paige, 589; 162; Herschfeldt z/. George, 6 Mich. 
 
 Henry v. FuUerton, 21 Miss. 631; 456; Merrill v. Meachum, 5 Day, 
 
 Hargroves v. Meray, 2 Hill Ch. 222; 341; Lewis v. Love, 2 B. Mon. 345; 
 
 Marston v. Marston, 54 Me. 476; Carlton v. King, i Stew. & Port. 
 
 Parkman v. Welch, 36 Mass. 231; 472; Williams Z). Avery, 38 Ala. 115; 
 
 McConihe v. Sawyer, 12 N. H. 396; Pratt v. Cox, 22 Gratt. 330; Part- 
 
 Ladd V. Wiggin, 35 N. H.421; Gove ridge v. Stokes, 66 Barb. 586; s. c. 
 
 ■V. Lawrence, 26 N. H. 484; Wads- 44 How. Pr. 381; Day v. Cooley, 118 
 
 worth V. Havens, 3 Wend. 411; Mass. 524; Dewey z/. Moyer, 16 N. 
 
 Smith V. Espy, 9 N. J. Eq. 160; Y. Supr. 473; Jones v. King, 86 111. 
 
 Flynn v. Williams, i Ired. 509; s. c. 225; Allaire v. Day, 30 N.J. Eq. 232; 
 
 7 Ired. 32; Smith v. Lowell, 6 N. U. S. v. Griswold, 8 Fed. Rep. 556; 
 
 H. 67; Smyth v. Carlisle, 16 N. H. vide Stone v. Myers, 9 Minn. 303; 
 
 417; s. c. 17 N. H. 417; Dart v. Summers v. Roos, 42 Miss. 749; 
 
 Stewart, 17 Ind. 221; Livermore v. Kane f>. Roberts, 40 Md. 590. 
 
ASSIGNMENTS FOB THE BENEFIT OF CREDITORS. 337 
 
 conveyances will, in general, be good against subsequent 
 creditors, for there is no secret trust for the benefit of the 
 vendor.i 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 
 defrauded by it.^ 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.* 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.* 
 
 § 301. 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.^ 
 
 CHAPTER XIV. 
 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 § 302. Modem Device. — Assignments for the benefit of 
 creditors are for the most part an American device, and 
 
 IClark V. French, 23 Me. 221; Richards, 3 Fed. Rep. 439; Shep- 
 
 O'Connor v. Bernard, 2 Jones, 654; pard v. Thomas, 24 Kans. 780; 
 
 Hall V. Sands, 52 Me. 355; Lynch v. Sledge v. Obenchain, 58 Miss. 670. 
 
 Raleigh, 3 Ind. 273; Upton z/. Craig, ^Clow t/. Woods, 5 S. & R. 275; 
 
 57 111. 257; Sanders v. Chandler, 26 Young v. Pate, 4 Yerg. 164; Smith 
 
 Minn. 273. v. Lowell, 6 N. H. 67; Paul v. 
 
 2Hall V. Sands, 52 Me. 355; Crooker, 8 N. H. 288; Woodrow v. 
 
 Keeler v. Ullrich, 32 Mich. 88. Davis, 2 B. Mon. 296; Rankin v. 
 
 SMonroe «. Smith, 79 Penn. 459; Holloway, 11 Miss. 614; Smith v. 
 
 Baker v. Oilman, 52 Barb. 26; Kane McDonald, 25 Geo. 377; Arrowsmith 
 
 V. Roberts, 40 Md. 590; Chrisman v. O'SuUivan, 44 N. Y. Supr. 554. 
 
 V. Graham, 51 Tex. 454; Kirksey v. 5Mowry's Appeal, 94 Penn. 376. 
 Snedecor, 60 Ala. 192; Herring v. 
 
338 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 are of a comparatively modern origin.^ It is true that 
 deeds of composition have been used for a long time, but 
 there is a manifest distinction between the two 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.^ 
 
 § 303. Deeds of Trust.— There is also a distinction 
 between an assignment and a deed of trust in the nature of 
 a mortgage.^ The former is an absolute and indefeasible 
 conveyance of the subject-matter thereof for the purposes 
 expressed 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 
 
 lln Grover v. Wakeman, ii creditors of its maker, but was, in 
 
 Wend. 187; s. c. 4 Paige. 23, 25 Am. fact, only a mortgage with power of 
 
 Dec. 624, Senator Tracy says tliat sale to secure creditors named in it, 
 
 he can find no trace of their dis- and if all the creditors named in it 
 
 tiuct recognition in the English assented to it, at the time of its 
 
 courts prior to 1805; but Bamfordz/. execution, no other effect could be 
 
 Baron, 2 T. R. 594, note, is before given to it." Alliance Milling Co. 
 
 that date. v. Eaton, Guinan & Co., 86 Tex. 
 
 2Wiener z/. Davis, 18 Penn. 331; 401-404, 24 L. R. A. 369; 24 S. W. 
 
 Grover v. Wakeman, 11 Wend. 187, 390; Stiles v. Hill, 62 Tex. 430; 
 
 25 Am. Dec. 624, per Senator Tracy; Jackson v. Harby, 65 Tex. 715; 
 
 Robbins v. Magee, 76 Ind. 381. . Waterman v. Silberberg, 67 Tex. 
 
 3"The instrument in question (a 103; 2 S. W. 578; Hudson v. Elevator 
 
 deed of trust for the benefit of cer- Co., 79 Tex. 407; 15 S. W. 385; 
 
 tain creditors) did not constitute an Willis v. Thompson, 85 Tex. 301. 
 
 assignment either general or special, See notes to sections 165-166-167 
 
 for the benefit of some or of all the ante. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 339 
 
 of the trust; tlie latter is a conveyance in trust for the pur- 
 pose 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.^ 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 certain 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 dis- 
 tribution, with such priorities as he may prescribe.^ 
 
 § 304. Solvent Debtor. — A voluntary deed of trust by a 
 solvent debtor must not, moreover, be confounded with 
 an assignment by an insolvent debtor for the benefit of 
 all or particular creditors.^ It differs from a mortgage 
 executed concurrently with the creation or extension of a 
 debt because it is voluntary, and from an assignment by 
 an insolvent debtor in view of his insolvency because it 
 is the act of a solvent man. Such a deed of trust does 
 not differ materially from a mortgage.* When it does not 
 appear from the face of the deed that the grantor owes 
 any debts besides those which he provides for. no infer- 
 
 iState V. Benoist, 37 Mo. 500; v. Dubose, 7 Ala. 235, 42 Am. Dec. 
 
 Crow V. Beardsley, 68 Mo. 435; 588; Graham v. Lockhart, 8 Ala. 9; 
 
 Hoffman v. Mackall, 5 Ohio St. 124; Frow z/. Smith, 10 Ala. 571; Fouke 
 
 64 Am. Dec. 637; Stewart ». Kerri- v. Fleming, 13 Md. 392; Hardy v. 
 
 son, 3 Rich. (N. S.) 266. Skinner, 9 Ired. 191. See section 
 
 2State Bank z/. Chapelle, 40 Mich. 167, ante., note, "it is not the pur- 
 
 447; Green v. Trieber, 3 Md. 11; pose of statutes regulating assign- 
 
 Fouke V. Fleming, 13 Md. 392. ments to qualify the common law 
 
 SHodge V. Wyatt, 10 Ala. 271; right of preference." 
 
 Elmes V. Sutherland, 7 Ala. 262; «Elmes v. Sutherland, 7 Ala. 262; 
 
 Pope V. Wilson, 7 Ala. 690; Dubose Green v. Banks, 24 Tex. 508. 
 
340 ASSIGNMENTS FOE THE BENEFIT OF CREDITORS. 
 
 ence can arise that it is made with the intent to delay, 
 hinder or defraud creditors, for where there are no credit- 
 ors there can be no intention to defraud them.^ But when 
 the deed on its face purports to be made by a solvent 
 debtor, proof may be given of his insolvency, and, if that 
 is established, it will then be governed by the same prin- 
 ciples as if the insolvency appeared on its face.^ 
 
 § 305. General and Partial. — Assignments for the benefit 
 of creditors are commonly called voluntary assignments, 
 to distinguish them from such as are. made by the com- 
 pulsion of the law.' There are two kinds of 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 prop- 
 erty of the debtor is a partial assignment.* One of the 
 primary and essential elements of an assignment is the 
 transfer of the title and interest of the debtor in the pro- 
 perty assigned.' The property must also be conveyed to 
 an assignee, to be held by him in trust for creditors.® If 
 either of these essentials is wanting, the transaction is not 
 an assignment for the benefit of creditors.^ 
 
 § 306. 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 suflBcient in general that in 
 such cases there is a competent grantor to convey and a 
 competent grantee to take the property. As to trusts 
 
 IPope V. Wilson, 7 Ala. 690. BBanning v. Sibley, 3 Minn. 389. 
 
 2Hardy v. Skinner, gired. 191; SPeck v. Merrill, 26 Vt. 686; 
 
 Hardy v. Simpson, 13 Ired. 132; Mussey v. Noyes, 26 Vt. 462. 
 Green v. Banks, 24 Tex. 508. 7Beans v. Bullitt, 57 Penn. 221. 
 
 SManny v. Logan, 27 Mo. 528. 8But in Alliance Milling Co. v. 
 
 ^Stetson V. Miller, 36 Ala. 642; Eaton, Guinan & Co., 86 Tex. 401, 
 
 Mussey v. Noyes, 26 Vt. 462; Noyes 24 L. R. A. 369, 24 S. W. 392, it is 
 
 V. Hickok, 27 Vt. 36; Shapleigh v. said in an exhaustive opinion that 
 
 Baird, 26 Mo. 322; Manny v. Logan, in the absence of statute assent is 
 
 31 Mo. 91; Lampson z*. Arnold, 17 necessary but will be presumed. 
 
 Iowa, 479. See notes to section 308, posi. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 341 
 
 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, independently of 
 the bankrupt law, is whether the conveyance is bona fide 
 or fraudulent.! It is not necessary that the deed shall be 
 executed by the cestuis que trustent in order to give validity 
 to its provisions. The instant the legal title becomes 
 vested in the assignee a trust arises in behalf of those in 
 whose favor it is declared, provided there is a suflBcient con- 
 sideration to sustain it.^ 
 
 IHalsey v. Whitney, 4 Mason, 
 206; NicoU 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. c. 1 
 Edw. 256; Marbury v. Brooks, 7 
 Wheat. 556; s. c. II Wheat. 78; Pope 
 V. Brandon, 2 Stew. 401; Hempstead 
 z». Johnson, 18 Ark. 123, 65 Am. Dec. 
 458; Ivayson v. Rowan, 7 Rob. (La.) 
 i; Reinhard 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; 
 Skipwith 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. 
 
 ^Skipwith V. Cunningham, 8 
 Leigh, 271. The common law doc- 
 trine in Maine, Massachusetts and 
 New Hampshire was different. An 
 assignment was not valid without 
 the assent of the creditors. An at- 
 tachment 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, II 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 z/. Wiley, 
 II 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 sub- 
 sequently. Hastings 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. Clisby, 25 Mass. 555; Sadler 
 V. Immel, 15 Nev. 265. An attach- 
 ment was entitled to priority over 
 creditors who subsequently assent- 
 ed. 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 s. 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 
 
342. ASSIGNMENTS FOR THE BENEFIT OP CREDITORS. 
 
 § 307. Consideration.^ — A nominal consideration is suffi- 
 cient to support the use.^ If a consideration of money is 
 expressed in the assignment, no averment or evidence can 
 be received to the contrary.^ The relation of debtor and 
 creditor between the assignor and assignee,* and the un- 
 dertaking on the part of the assignee to pay the proceeds 
 of the estate to the creditors of the assignor,* are a suffi- 
 cient 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,^ 
 and relieve the assignment from the imputation of fraud 
 that -would result from a naked gift.^ 
 
 § 308. Presumption ofAssent.'^ — The creditors may reject 
 the beneficiary interest given to them by the assignment, 
 
 502, 2 
 
 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 mar- 
 shal the assets to aid either. Gore 
 V. Clisby, 25 Mass. 555; Lupton v. 
 Cutter, 25 Mass. 298; Copeland v. 
 Weld, 8 Me. 411. Under the present 
 statutes of Maine and New 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, Shattuck 
 V. Freeman, 42 Mass. 10, but assign- 
 ments are now void under the in- 
 solvent laws of that State. Stan- 
 field ». Simmons, 78 Mass. 442. 
 Contra, Adams ». Blodgett, 2Woodb. 
 & Min. 233. 
 
 ICunningham v. Freeborn, 11 
 Wend. 241; s. c. i 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'Kinleyz-. Combs, i Mon. 105. 
 
 2Wilt V. Franklin, i Binn. 
 Am. Dec. 474. 
 
 SCunningham v. Freeborn, 11 
 Wend. 241; s. c. i Edw. 256; 3 Paige, 
 537; Ward V. Trotter, 3 Mon. 1; 
 Jones V. Dougherty, 10 Geo. 273. 
 
 4Wilt V. Franklin, I Binn. 502; 2 
 Am. Dec. 474; Halsey v. Whitney,'4 
 Mason, 206; Haven z". Richardson, 5 
 N. H. 113; U. 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. 
 
 BHalsey v. Whitney, 4 Mason, 
 206; U. S. Bank v. Huth, 4 B. Mon. 
 423; Hudson V. Maze, 4 111. 578; 
 Hall V. Dennison, 17 Vt. 310; 
 Laurence v. Davis, 3 Mclvean, 177; 
 Meeker v. Saunders, 6 Iowa, 61; 
 Stephenson v. Hayward, Prec. Ch. 
 3io;.Hollister v. Loud, 2 Mich. 309; 
 Gates V. Labeaume, 19 Mo. 17. 
 
 6U. S. Bank v. Huth, 4 B. Mon. 
 423; HoUister v. Loud, 2 Mich. 309; 
 Alliance Milling Co. v. Eaton, Gui- 
 nan & Co., 86 Tex. 401, 24 L. 
 R. A. 369, 24 S. W. 392. 
 
 7WHAT Constitutes Assent. 
 — "Assent or acceptance on the 
 part of a grantee or other party to 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 343 
 
 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.^ Whether the beneficiaries in the trust 
 deed are apprised of the conveyance or not is not material. 
 When it comes to their knowledge they are entitled to 
 accept or reject its provisions.^ An express avowal of that 
 assent is not necessary to the operation of the assignment,* 
 for the deed is complete when executed by the parties to 
 ii.^ 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.^ If one cestui que trust 
 renounces the trust, then it either inures 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 trustent 
 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, 
 
 3. deed or otter instrument, by Sackett, 12 Wis. 243-256-257. 
 means of which the title to prop- iHalsey v. Whitney, 4 Mason 
 
 •erty, real or personal, is to be trans- 206; Lawrence v. Davis, 3 McLean 
 
 ferred, or by which he is in any 177; Brashear v. West, 7 Pet. 608; 
 
 other manner to become bound, is Brooks v. Marbury, 11 Wheat. 78-97; 
 
 a./aci, the truth of which is to be Tompkins t>. Wheeler, 16 Pet. 118; 
 
 established by competent evidence Cunningham zi. Freeborn, 11 Wend. 
 
 before such deed or other instru- 240; Ingram v. Kirkpatrick, 6 Ired. 
 
 mentcan be adjudged to have a Bq. 462; Rankin v. Lodor, 21 Ala. 
 
 legal existence." 380; Lanier v. Driver, 24 Ala. 149; 
 
 ■"Assent is an act of the mind, that Stewart v. Hall, 3 B. Mon. 218; Mc- 
 intelligent power in man by which Bride v. Bohan, 50 Ga. 155; Wash- 
 he conceives, reasons and judges, ington v. Ryan, 5 Baxter (Tenn.) 
 and of which it is a primary, invari- 622. 
 
 able and most familiar law that it 2Furman v. Fisher, 4 Colds. 626, 
 
 cannot act with reference to exter- 94 Am. Dec. 210. 
 rial objects until, through the SNicoll z/. Mumford, 4 Johns. Ch. 
 
 medium of the senses,itis impressed 522. 
 
 with or knows their existence. -tBrooks z/. Marbury, l Wheat. 78. 
 
 Hence, without such impression or BHalsey v. Whitney, 4 Mason 206. 
 
 knowledge, there can be no assent— BRankin v. Lodor, 21 Ala. 380. 
 
 no acius contra actum." Welch v. 
 
344 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 and can only be avoided by the dissent, express or implied, 
 of the cestuis que trustent} The doctrine of implied assent, 
 however, is limited to those cases where there is a reason- 
 able presumption of such assent, and does not apply to any 
 deed which does not appear to be for the benefit of the 
 creditors.^ This presumption is not founded on the face of 
 the instrument, but in the nature and circumstances of the 
 entire case.* 
 
 § 309. Effect of Bequirement 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.* When it expressly excludes all implied assent, by 
 requiring that the creditors shall manifest their consent 
 in a prescribed mode,^ or by stipulating for the sanction 
 of a majority of the creditors, before it can take effect,® 
 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 executing 
 it within that time.'' The mere omission to sign the deed 
 will not make the deed void unless there is some express 
 requirement to that effect.* 
 
 § 310. When Assent not Presumed. — The presumption 
 that the creditors assent to an assignment is based on the 
 principle that every man may be presumed to assent to an 
 act which is for his benefit. But in order that this pre- 
 sumption may arise, the assignment must, on its face, 
 plainly and clearly appear to be for their benefit. Where 
 there are conditions in the assignment, as, for instance, 
 that the creditors shall release their debts, the presump- 
 tion of assent does not arise, because it involves a question 
 
 iSkipwith V. Cunningham, 8 Swearinger v. Slicer, 5 Mo. 241; 
 
 Leigh 271, 31 Am. Dec. 642. Moore v. M'Duffy, 3 Hawks 578. 
 
 2Smith V. Leavitts, 10 Ala. 92; ^Laurence v. Davis, 3 McLean, 
 
 Lockhart v. Wyatt, 10 Ala. 231, 44 177; Shearer v. Loftin, 26 Ala. 703. 
 
 Am. Dec. 481. 7Brown v. Lyon, 17 Ala. 659. 
 
 sstewart v. Spencer, i Curt. 157. spellows v. Greenleaf, 43 N. H. 
 
 ^Fellows z/. Greenleaf, 43 N. H. 421; Gale z*. Mensing, 20 Mo. 461, 
 
 421. 64 Am. Dec. 197. 
 
 6Todd V. Bucknam, 11 Me. 41; 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 345 
 
 of discretion upon which different minds may draw differ- 
 ent conclusions. If, therefore, an assent on the part of 
 creditors is necessary to give full effect to such an assign- 
 ment, it is not complete until such assent is expressly 
 given.i 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.^ There is 
 no presumption of assent if the assignment is fraudulent, 
 either in law or in f act.^ N"o assent, therefore, can be pre- 
 sumed when the assignment requires that the creditors 
 shall give to the debtor a credit for the balance that remains 
 due after the proceeds are distributed,* or where the 
 majority of the creditors are to have the power to fix the 
 time for the sale of the property,^ or where the assignee 
 is disqualified,® or where the liability of the assignee is 
 limited to actual receipts or wilful defaults,^ or where 
 the assignees are not to be responsible for the neglect of 
 each other.* There is also a distinction between an assign- 
 ment by an insolvent debtor and a deed of trust by a sol- 
 vent debtor.^ If the latter postpones the time for pay- 
 ment beyond the time when the debts become due, or 
 involves any risk of the destruction or deterioration of the 
 property, no presumption of assent will arise.-^" 
 
 IHalsey v. Whitney, 4 Mason, Elmes v. Sutherland, 7 Ala. 262. 
 
 206; Drake v. Rogers, 5 Mo. 317; Bghearer v. Loftin, 26 Ala. 703. 
 
 Hurd V. Silsbee, 10 N. H. 108, 34 eSpinney v. Portsmouth Co., 
 
 Am. Dec. 142; vide Skipwith z;. Cun- 25 N. H. 9. 
 
 ningham, 8 I/eigh, 271, 31 Am. Dec. 7Brown v. Warren, 43 N. H. 430;. 
 
 642; Hall V. Dennison, 17 Vt. 310; Spinney v. Portsmouth Co., 25 N. 
 
 Sadlier v. Fallon, 4 R. 1. 490. Upon H. 9. 
 
 this subject the law -varies with each SSpinney v. Portsmouth Co., 25 
 
 state according to whether it up- N. H. 9. 
 
 holds or avoids assignments exact- 9 Elmes v. Sutherland, 7 Ala. 
 
 ing releases. See chapter XV, /oj^. 262; Hodge v. Wyatt, 10 Ala. 271;. 
 
 2Ealkman v. McElderry, 16 Md. Pope v. Wilson, 7 Ala. 690; Dubose 
 
 56. V. Dubose, 7 Ala. 235, 42 Am. Dec. 
 
 STownsend v. Harwell, 18 Ala. 588; Graham v. Lockhart, 8 Ala. 9; 
 
 301; Stewart v. Spencer, i Curt. Alliance Milling Co. z/. Baton & Co., 
 
 157; Ashley v. Robinson, 29 Ala. 86 Tex. 401, 24 L. R. A. 369, 24 S. 
 
 112; Benning v. Nelson, 23 Ala. 801; W. 392. 
 
 Baldwinz/. Peet, 22Tex. 708, 75 Am. WHodge v. Wyatt, 10 Ala. 271; 
 
 Dec. 806. Elmes v. Sutherland, 7 Ala. 262;. 
 
 ^Todd V. Bucknam, 11 Me. 41; Evans v. Lamar, 21 Ala. 333; Kemp 
 
346 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 § 311. Dissent of Creditors. — The doctrine of implied 
 assent is for the benefit of the creditors, and they may, if 
 they think proper, decline to avail themselves of it;^ and 
 this may be done by any distinct and unequivocal act of 
 renunciation.^ 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 
 abandonment on the part of the creditors provided foj".* 
 
 § 312. Efifect of Creditors' Refusal.— The refusal of one 
 or more creditors to accept does not render the deed invalid 
 as to other creditors who desire to claim a benefit under 
 it. If valid in other respects the assignment is a security 
 for them, notwithstanding the refusal of one or more of 
 the creditors to accept it. The effect of a refusal by a 
 creditor to take under the deed is the same as if he had 
 been omitted.* The distinction is between a deed which 
 contemplates or needs the assent of all the creditors before 
 it can become complete or valid, and a deed which does not 
 require the consent of all. In the latter case the assent 
 of a part only will make it valid as far as it respects them.' 
 In the former case, inasmuch as there can be no presump- 
 tion of assent, the deed is within the general rule of man- 
 dates, 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 con- 
 cerned, to a revocation by the debtor.® This doctrine applies 
 to all cases where the presumption of assent does not arise. 
 
 V. Porter, 7 Ala. 138; Graham v. ^Smith v. Leavitts, 10 Ala. 92; 
 
 Lockhart, 8 Ala. 9; Shearer v. l,of- Halsey v. Whitney, 4 Mason, 206; 
 
 tin, 26 Ala. 703. Hastings v. Baldwin, 17 Mass. 552; 
 
 ISmith V. Leavitts, 10 Ala. 92; Gordon v. Coolidge, i Sumner 537; 
 
 Merrill v. Swift, 18 Conn. 257, 46 Petriken v. Davis, Morris, 296; 
 
 Am. bee. 315; Corn v. Jackson, 10 Kinnard v. Thompson, 12 Ala. 487. 
 
 Bush 429; Valentine v. Decker, 43 Bjiauldin v. Armistead, 14 Ala. 
 
 Mo. 583; Dikes v. Miller, 24 Tex. 702; Brown v. Lyon, 17 Ala. 659. 
 
 423. BLockhart z/. Wyatt, 10 Ala. 231; 
 
 Sparquharson v. McDonald, 2 Hodge z/. Wyatt, 10 Ala. 271; Elmes 
 
 Heisk. 404. V. Sutherland, 7 Ala. 262; Shearer 
 
 3U. S. Bank v. Huth, 4 B. Mon. v. Loftin, 26 Ala. 703. 
 423; Mofiatt V. Ingham, 7 Dana, 495. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 347 
 
 § 313. Irrevocable. — The debtor cannot revoke the assign- 
 ment, nor can he even extinguish it by getting a reconvey- 
 ance, for no act of the assignee can affect the rights of the 
 cestuis que trustent?- The assignment however, is revocable 
 when the creditors refuse to accept,^ or when they delay 
 for so long a time as to create a counter presumption to 
 rebut the presumption of assent.^ In either of these cases 
 it may be altered, cancelled, or changed by the parties to it. 
 
 § 314. Parties may Alter a Fraudulent Assignment. — An 
 
 assignment which is fraudulent on its face is binding on 
 those who assent to it,* and consequently the debtor alone 
 can not change or modify the terms of the transfer in any 
 respect.''* It is different, however, when the parties con- 
 
 iFurman v. Fisher, 4 Cold. 626, 
 94 Am. Dec. 210; Hyde v. Olds, 12 
 Ohio St. 591; Itigratn -v. Kirk- 
 patrick, 6 Ired. Eq. 462; Forbes v. 
 Scannell, 13 Cal. 242; Brown v. 
 Chamberlain, 9 Fla. 464; Hal) v. 
 Dennison, 17 Vt. 310; Stewart v. 
 Hall, 3 B. Mon. 218; ex parte Con- 
 way, 12 Ark. 302; Skipwith v. Cun- 
 ningham, 8 Leigh, 271, 31 Am. Dec. 
 642; Sheldon v. Smith, 28 Barb. 593. 
 Contra, Pitts v. Viley, 4 Bibb. 446; 
 M'Kinley v. Combs, i Mon. 105; 
 Langton v. Tracey, i Nels. 126; s. c. 
 Ch. Rep. 30; Gait v. Dibrell, 10 
 Yerg. 146; Brevard v. Neely. 2 
 Sneed, 164. The doctrine in Eng- 
 land is that an assignment is re- 
 vocable. Gerrard v. Lauderdale, 3 
 Sim. i; Page z/. Broom, 4 Russ. 6; 
 Acton V. Woodgate, 2 M. & K. 492; 
 Griffith V. Ricketts, 7 Hare, 299; 
 Smith V. Hurst, 10 Hare, 30; s. c. 15 
 Eng. L. & Eq. 520; s. c. 17 Jur. 30; 
 s. c. 22 L. J. Ch. (N. S.) 289; Law v. 
 Bagwell. 4 Dr. & War. 398; Brown 
 V. Cavandish, i 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 u. Ricketts, 7 Hare, 299; Ac- 
 ton 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. Ricketts, 7 Hare, 299. 
 Nor after the payment of an install- 
 ment. Kirwan z^. Daniel, 5 Hare, 
 493. The trustee upon revocation 
 may retain for his own debt. Wild- 
 ing V. Richards, i Coll. 655; Griffith 
 V. Ricketts, 7 Hare, 299; Siggers v. 
 Evans, 32 Eng. L. & Eq. 139- 
 
 ^Gibson v. Chedie,, i Nev. 497i 
 90 Am. Dec. 503; Gibson v. Rees, 
 
 50 111. 383- 
 
 SGibson v. Rees, 20 111. 383. 
 
 4Hone V. Henriquez, 13 Wend. 
 240; s. c. 2 Edw. 120; 27 Am. Dec. 
 204; Van Winkle v. McKee, 7 Mo. 
 435. Johns ». Bolton, 12 Penn. 339; 
 Geisse v. Beal, 3 Wis. 367; Bellamy 
 V. Bellamy, 6 Fla. 62; Richardson z/. 
 Rogers, 45 Mich. 591. 
 
 sPorter v. Williams, 9 N. Y. 142; 
 s. c. 12 How. Pr. 107; 59 Am. Dec. 
 519; Sheldon v. Smith, 28 Barb. 593; 
 Metcalf V. Van Brunt, 37 Barb. 621. 
 
348 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 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 in- 
 strument or deed fraudulent as to creditors and voidable 
 by them is nevertheless valid as between the parties to it, 
 and the title is deemed to have passed and vested in the 
 grantee. A deed which is fraudulent under the statute is 
 voidable only and not absolutely void.^ A void deed is in- 
 capable of confirmation or of being made good by any sub- 
 sequent act of the party, while one which is merely void- 
 able may be confirmed, and will then be effectual for all 
 purposes unless the rights of third persons intervene and 
 prevent it. 
 
 § 315. Parties to an Alteration. — The validity of an as- 
 signment 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.^ 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 in- 
 strument, 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.^ No alteration or revocation, 
 however, can prejudice the rights of a creditor who has 
 obtained a valid lien upon the property.* 
 
 iHone V. Woolsey, 2 Bdw. 689. ^Porter v. Williams, 9 N. Y. 142; 
 
 2lnsurance Co. v. Wallis, 23 Md. s. c. 12 How. Pr. 107; 59 Am. Dec. 
 
 173- 519; Gates V. Andrews, 37 N. Y. 
 
 i)Hone V. Woolsey, 2 Edw. 289. 657, 97 Am. Dec. 764. 
 
ASSIGNMENTS FOR THE BENEEIT OF CREDITORS. 349 
 
 § 316. Mode of Alteration. — It is immaterial in wliat form 
 the alteration may be made, whether by a reconveyance 
 back to the debtor and a reassignment by him, or by 
 another assignment without a reconveyance,^ or by an 
 instrument reiterating the trusts and dispensing with the 
 provisions which make the assignment void.^ The law 
 looks to the object and intent of the parties, and gives 
 effect to their acts so as to carry such intention into eflfect 
 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.^ 
 Therefore one void deed can not be made good by another 
 void deed, nor can the two be construed together as one 
 instrument.* 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.^ 
 
 § 317. Form. — 'So particular form of words or instrument 
 is necessary to constitute a valid assignment of chattels or 
 choses in action. Any valid transfer by which the uses and 
 trusts for which the property is assigned and to which it is 
 to be appropriated by the assignee, are intelligibly indi- 
 cated and declared, is an assignment.^ If the deed is 
 
 iBrahe v. Eldridge, 17 Wis. 184; Pr. 107, 59 Am. Dec. 5T9; Smith v. 
 
 Bridges V. Hindes, 16 Md. loi; Sum- Howard, 20 How. Pr. 121; Gates v. 
 
 net V. Hicks, 2 Black. 532; Ingra- Andrews, 37 N. Y. 657, 91 Am. Dec. 
 
 ham V. Wheeler, 6 Conn. 277; Mills 764; Gable v. Williams, 59 Md. 46. 
 V. Argall, 6 Paige, 577; Pierce v. SMackie v. Cairns, 5 Cow. 547, s. 
 
 Brewster, 32 111. 268; Overton v. c. i Hopk. 373; D'lvernois v. 
 
 Holinshade, 5 Heisk. 283; First Leavitt, 23 Barb. 63. 
 Nat'l Bank v. Hughes, 10 Mo. Ap. 7. ^Bridges v. Hindes, 16 Md. loi. 
 
 2Hone V. Woolsey, 2 Edw. 289; ^Lentilhon v. Moffatt, i Edw. 
 
 Conkling v. Carson, 11 HI. 503; 45i; Averill z/. Loucks, 6 Barb.470; 
 
 Merrill v. Englesby, 28 Vt. 150; Mitchell v. Styles, 13 Penn. 306; 
 
 Murray v. Riggs, 15 Johns, 571, s. c. vide Murray v. Riggs, 15 Johns. 
 
 2 Johns. Ch. 565; Cohens v. Sum- 571, s. c. 2 Johns. Ch. 565. 
 mers, 54 Geo. 501; vide Porter v. 6Norton v. Kearney, 10 Wis. 443. 
 
 Williams, 9 N. Y. 142, s. c. 12 How. 
 
350 ASSIQWMENTS FOR THE BENEFIT OF CREDITORS. 
 
 intelligible, brevity is not a badge of fraud.^ In general, 
 it is not desirable to do more than to direct, in general 
 terms, a sale of the property and collection of the debts 
 assigned and to designate to what debts and in what order 
 the proceeds shall be applied.^ An assignment of personal 
 property and choses in action need not be under seal.' 
 It may be by parol. A mere delivery of the subject 
 assigned is sufficient.* The form of the assignment is, 
 immaterial. An assignment consisting of two'' or three® 
 
 IForbes v. Scannell, 13 Cal. 242; 
 Meeker v. Sanders, 6 Iowa, 61; 
 State V. Keeler, 49 Mo. 548. 
 
 2Dunham v. Waterman, 17 N. Y. 
 
 9, s. u. 6 Abb. Pr. 357, 3 Duer, 166, 
 72 Am. Dec. 406; Jessup v. Hulse, 
 21 N. Y. 168, s. c. 29 Barb. 539. 
 
 SForbes v. Scannell, 13 Cal. 242. 
 *Brown z'.Chamberlain, 9 Fla. 464. 
 
 6BIPARTITE ASSIGNMENTS. "The 
 
 essential features of an instrument 
 of assignment may be conveniently 
 illustrated by taking up the sim- 
 plest variety in common use, which 
 is the assignment bipartite, consid- 
 ing it as divested of all special 
 clauses and examining in succession 
 its formal parts. These consist of 
 the following: 1, the commence- 
 ment; 2, the recital; 3, the consider- 
 ation; 4, the transfer; 5, the descrip- 
 tion of the property assigned; 6, the 
 habendum; 7, the declaration of the 
 trusts or directions to the assignee; 
 8, the reservation to the assignor; 9, 
 power of attorney to the assignee; 
 
 10, covenant by the assignee; 11, 
 the concluding clause. To the as- 
 signment are usually appended two 
 schedules, which are marked, and 
 referred to in the body of the instru- 
 ment, and are taken as a part of it: 
 first, a schedule of the property 
 assigned; and secondly, a schedule 
 of the assignor's creditors, or of the 
 debts to which the property is to be 
 appropriated." Burrill on Assign- 
 ments, 6th ed., p. 136 sec. 95. 
 
 The commencement generally re- 
 cites in general terms the gross 
 sum of assignor's debts, and states 
 his insolvency and his agreement 
 to transfer to his creditors his 
 property in trust for their benefit. 
 
 The consideration is nominal, 
 usually stated as one dollar. 
 
 In the transfer clause the assign- 
 or sets over all his property to the 
 assignee. 
 
 The description gives a detailed 
 statement of the property (usually 
 done by reference to an annexed 
 schedule.) 
 
 The habendum, is the formal 
 clause expressing the legal estate 
 the assignee is to take. 
 
 TJje trusts upon which the prop- 
 erty is to , be held are ranked by 
 Burrill in two general classes: first, 
 to reduce the property into a form 
 in which it may be distributed; and, 
 secondly, to distribute it. 
 
 The power of attorney to the 
 assignee must be irrevocable. 
 
 The assignee then covenants to 
 execute the trust faithfully. He 
 usually agrees to be liable only for 
 his own personal defaults. In 
 many forms of assignment this 
 clause is entirely omitted. 
 
 See Burrill on Assignments, 6th 
 ed., sec. 95, et aeq. 
 
 6TR1PART1TE Assignments. "In 
 these assignments the parties are 
 arranged in three parts, the debtor 
 being the party of the first part. 
 
ASSIGNMENTS FOR THE BENEFIT OF OREDITOBS. 351 
 
 parts is as valid as an assignment consisting of but one part.^ 
 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.^ 
 
 § 318. Property Assignable. — Ohoses in action may be 
 transferred and pass by an instrument of assignment.* 
 Trade marks will pass by a general assignment* unless the 
 trade mark is of a personal character, the loss of which 
 
 the assignee of the second part, 
 and the creditors of the third part. 
 Their principal peculiarities are 
 the covenants they contain on the 
 part of the several parties, and 
 which the form of the instrument 
 admits to a great extent. Thus the 
 debtor covenants that he will aid 
 the assignee in the receipt and col- 
 lection of the debts and property, 
 will ratify and conform to his law- 
 ful acts under the assignment, and 
 will do all further acts necessary 
 in the execution of the trust. The 
 assignee covenants to execute the 
 trust, to account with the creditors, 
 and to make just distribution among 
 them. And the creditors formally 
 accept the provisions of the; assign- 
 ment in full payment of their 
 respective debts, and release and 
 discharge the debtor from all claims 
 and demands. There are also 
 frequently inserted a variety of 
 clauses giving special powers to the 
 assignee, and marking out, in con- 
 siderable detail, the course of his 
 proceedings in the execution tii 
 the trust. 
 
 In the execution of these instru- 
 ments it is usual to employ coun- 
 terparts, so that the transfer may 
 be made complete by a delivery to 
 the assignee, in case the assign- 
 ment is retained by the debtor for 
 any purpose, as to procure the sig- 
 nature of creditors." Burrill on 
 assignments, 6th ed., sec. ii8. 
 
 iPage V. Weymouth, 47 Me. 238. 
 
 2Gordon v. Cannon, 18 Graft. 387. 
 
 8U. S. z/. BankofU. S., 8 Rob. 
 (La.) 262; Kenyon v. Wrisley, 147' 
 Mass. 476, I h. R. A. 348; 18 N. E- 
 227; 7 N. Eng. 156. 
 
 An assignee for the benefit of 
 creditors is not, as against the 
 holders of choses in action, a pur- 
 chaser for value, he takes only the 
 rights of his assignor, and choses 
 in action in his hands are subject 
 to all the equities to which they 
 would have been subject in the 
 hands of the assignor. Merwin v. 
 Austin, 58 Conn. 22; 7 L. R. A. 84; 
 18 Atl. 1029; Lockett V. Robinson, 
 31 Fla. 134; 20 Iv. R. A. 67; Camp- 
 bell Mfg. Co. V. Walker, 22 Fla. 412; 
 1 So. 59; Einstein v. Shouse, 24 
 Fla. 490; 5 So. 380; Chase p. Chapin, 
 130 Mass. 131; Brown v. Brabb, 67 
 Mich. 17, II Am. St. Rep. 549. 34 
 N. W. 403; National Bank v. Hub- 
 bell, 117 N. Y. 384; 15 Am. St. Rep. 
 515; 22 N. E. 1031; Nashville Trust 
 Co. V. Fourth Nat. Bank, 91 Tenn. 
 336; 15 L. R. A. 710; 18 S. W. 822; 
 Akin V. Jones, 93 Tenn. 353, 42 Am. 
 St. Rep. 921; 25 L. R. A. 523; 27 S. 
 W. 669; Hooven v. Burdette, 153 
 III. 672; 9 Nat. Corp. Rep. 252; 39 
 N. E. 1107. 
 
 *Warreh zi. Warren Thread Co., 
 134 Mass. 247; Sohin v. Johnson, iii 
 Mass. 238; Kid v. Johnson, 100 U 
 S. 617; Leather Cloth Co. v. Ameri- 
 can Leather Cloth Co., 11 H. L. 
 
352 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 will restrict tlie assignor in his means of support.^ The 
 secondary franchises of a corporation are subjects of assign- 
 ment.^ Property held in trust does not-pass by a deed of 
 assignment.^ Generally all ordinary real and personal 
 property is subject to assignment. The money of general 
 
 Cas. 523; Motley v. Downman, 3 
 Myl., and Cr. i; Hudson v. Osborn, 
 39 L. J. (N. S.) Ch. 79- 
 
 iHelmbold v. Helmbold Mfg. 
 Co., 53 How. Pr. 453; 17 Am. Law 
 Reg. N. S. 169. And see a valuable 
 note on this subject, 17 Am. State 
 Rep. 496-499- 
 
 2Thompson's Commentaries on 
 Corporations, Vol. 5, sec. 6471. See 
 section 328, note. 
 
 3"No higher or better right or 
 title to any of this property passed to 
 the assignee than the assignor held. 
 His creditors could acquire no 
 rights or remedies in or against it 
 by force of the assignment. The 
 assignee simply represents them 
 and their rights, which he has un- 
 dertaken to enforce by the plain 
 processes appointed by statute. 
 They do not, in any sense, stand to 
 the assigned property in the rela- 
 tion of purchasers. The benefi- 
 ciaries of the property which the 
 assignee is now seeking to subject 
 to the payment of the assignor's 
 debts are free to assert, against the 
 assignee, every right and claim 
 which, before the assignment, they 
 could have asserted against the 
 assignor." Mannix v. Purcell, 46 
 Oh. St. 102, 15 Am. St. Rep. 562, 
 see note, 2 L. R. A. 753, see note, 
 19N.E. 572, 2iOh. I/.J. 72. In this 
 case the Roman Catholic Bishop of 
 Cincinnati,in whom the legal title to 
 the diocesan property was vested, 
 in trust for the use of the church, 
 had made an assignment in his in- 
 dividual — and not his corporate — 
 capacity. The assignee, represent- 
 ing the creditors, sought to subject 
 
 the church property to the pur- 
 poses of the assignment, and the 
 court held that it could not be done. 
 The opinion and briefs of counsel 
 are remarkably exhaustive, and 
 contain a comprehensive discussion 
 of all the legal propositions in- 
 volved. 
 
 Supporting the general rule thus 
 stated, that property held in trust 
 does not pass by an assignment for 
 the benefit of creditors, see Billings 
 V. Marsh, 153 Mass, 311, 25 Am. St. 
 Rep. 635, 26 N. E. 1000; Little v. 
 Chadwick, 151 Mass. 109, 7l(. R- A. 
 570, 23 N. E. 1005. 
 
 The property is subject to the 
 claims of the beneficiary as long as 
 it can be identified. But if it is 
 mixed with the other property so 
 that it cannot be separated, the 
 beneficiary must share with the or- 
 dinary creditors. 111. Sav. Bank v. 
 Smith, 21 Blatch. 275; Union Na- 
 tional Bank z/. Goetz, 138 111. 127, 
 
 32 Am. St. Rep. 119, 27 N. E. 907; 
 Wetherell v. O'Brien, 140 111. 146, 
 
 33 Am. St. Rep. 221, 29 N. E. 904; 
 Mutual Accident Association v. 
 Jacobs, 141 111. 261, 33 Am. St. Rep. 
 303, 31 N. E- 414; Roach V. Caraffa, 
 85 Cal. 436, 25 Pac. 22; Little v. 
 Chadwick, 151 Mass. 109, 7 L. R. A. 
 570, 23 N. E. 1005; Attorney-General 
 V. Brigham, 142 Mass. 248, 7 N. E. 
 851; Howard v. Fay, 138 Mass. 104; 
 White V. Chapin, 134 Mass. 230; 
 Neely v. Rood, 54 Mich. 134, 52 
 Am. Rep. 802, 19 N. W. 920; Gris- 
 som V. Commercial National Bank, 
 87 Tenn. 350, 10 Am. St. Rep. 669, 10 
 S. W. 774; Holland v. Holland, L. R. 
 4 Ch. 449; Isaacson v. Harwood, L. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 353 
 
 depositors in a bank is the property of the bank and passes 
 to the assignee of the bank.^ Generally a right of action 
 for tort will not pass to the assignee.^ 
 
 § 319. Schedules.— No schedule either of the creditors or 
 of the property need be annexed.* The fact that it trans- 
 
 R. 3 Ch. 225; Perry on Trusts, 345. 
 
 But some jurisdictions go so far 
 as to hold that the property may be 
 followed even when it can be no 
 longer separated, and that the ces- 
 iuis que irustent have a lien on all 
 the assigned property of the trustee, 
 in the hands of the assignee, for 
 the amount of their claims, and 
 that this lien is superior to the 
 claims of the assignor's other cred- 
 itors. Independent District v. King, 
 80 Iowa 497, 45 N. W. 908; Daven- 
 port Plow Works V. Lamp, 80 Iowa 
 722, 20 Am. St. Rep. 442, 45 N. W. 
 1049; Peak V. EUicott, 30 Kans. 156, 
 46 Am. Rep. 90, i Pac. 499; Myers 
 V. Board of Education, 51 Kans. 87, 
 37 Am. St. Rep. 263, 32 Pac. 658; 
 Harrison v. Smith, 83 Mo. 210, 53 
 Am. Rep. 571; Stoller v. Coates, 
 88 Mo. 514; National Bank v. Insur- 
 ance Co., 104 TJ. S. 54; Smith v. 
 Combs, 49 N. J. Eq. 420, 24 Atl. 9; 
 McLeod V. Evans, 66 Wis. 401-409, 
 57 Am. Rep. 287, 28 N. W. 173. 
 
 Commenting on the decision in 
 McLeod V. Evans, supra, the Su- 
 preme Court of Massachusetts says, 
 in Little v. Chadwick, 151 Mass. 109, 
 7 L. R. A. 570, 23 N. E. 1005: "But 
 this seems to us to be stated too 
 broadly." 
 
 Since the above note was pre- 
 pared the Supreme Court of Wis- 
 consin has overruled McLeod v. 
 Evans, in Nonotuck Silk Co. v. 
 Flanders, 87 Wis. 237, 58 N. W. 383. 
 
 See also Huckabee v. Billingsley, 
 16 Ala. 414,50 Am. Dec. 183; La- 
 throp V. Bampton, 31 Cal. 17, 89 
 Am. Dec. 141; Farmers' Bank v. 
 King, 57 Pa. St. 202, 98 Am. Dec. 
 
 215; First Nat. Bank z/. Hummel, 14 
 Colo. 259, 20 Am. St. Rep. 257, 23 
 Pac. 986; Englar v. Offutt, 70 Md. 
 78, 14 Am. St. Rep. 332, 16 Atl. 497; 
 Holmes v. Gilman, 138 N. Y. 369, 
 34 Am. St. Rep. 463, 34 N. E. 205. 
 See also 5 Cent. L. J. 51, 75; 25 Cent. 
 Iv- J- 315; 31 Cent. L. J. 125, 145; 39 
 Cent. L. J. 4. 
 
 IHawes v. Blackwell, 107 N. C. 
 196; 22 Am. St. Rep. 870; 12 S. E. 
 245; Boettcher z/.Colorado Nat.Bank, 
 15 Colo. 16, 24 Pac. 582; Atlanta 
 Nat. Bank v. Burke, 81 Ga. 597; 7 
 S. E. 738; Laclede Bank v. Schuler, 
 120 U. S. 511; 7 S. Ct. 644; Bank v. 
 Millard, 10 Wall. 152; Spilman v. 
 Payne, 84 Va. 435; 4 S. E. 749- 
 
 ^Sanborn v. Doe, 92 Cal. 152; 27 
 Am. St. Rep. loi; 28 Pac. 105; Hunt 
 V. Conrad, 47 Minn. 557; 50 N. W. 
 614; Zabriskie v. Smith, 13 N. Y. 
 322; 64 Am. Dec. 551; Bixby v. 
 Wood, 24 N. Y. 607; Jones v. Mat- 
 thews, 75 Tex. i; 12 S. W. 823; 
 Slauson v. Schwabacher, 4 Wash. 
 783; 31 Am. St. Rep. 948; 31 Pac. 
 329; Murray v. Buell, 76 Wis. 657; 
 20 Am. St. Rep. 92; 45 N. W. 667. 
 Compare Shafer v. Grimes, 23 la. 
 550; Jackson v. Daggett, 24 Hun 
 205; Davis V. St. Louis etc. Ry. Co., 
 25 Fed. 786, cases decided under 
 statutes abrogating the common 
 law rule of actio personalis moritur 
 cum persona. 
 
 3Brashear v. West, 7 Pet. 608; 
 Wilt V. Franklin, i Binn. 502, 2 Am. 
 Dec. 474; Hower ». Geesaman, 17 
 S. & R. 251; Wooster v. Stanfield, 
 II Iowa, 128; Brown v. Chamber- 
 lain, 9 Fla. 464; Halsey v. Whitney, 
 4 Mason 2oh; Pearpointw. Graham, 
 
354 ASSIGNMENTS FOK THE BENEFIT OF CREDITORS. 
 
 fers money and, chosesin action does not make any differ- 
 ence.' An enumeration in detail is not necessary to make 
 a legal transfer. It is sufiBcient if there is reasonable cer- 
 tainty in the description of the property intended to be 
 conveyed.''^ If there is no such certainty in the description 
 of the articles purported to be conveyed, no transfer is 
 effected.'^ 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 ascer- 
 tained by a sale of the property.* But where a schedule 
 is made a part of the conveyance, and is referred to as con- 
 taining a specification of the property intended to be con- 
 veyed, it must be annexed not only as a description and 
 specification 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.^ 
 
 §320. Statement of J)ebts. — The assignment need not 
 name the creditors or the amount due to each. This must 
 necessarily be the form of every general assignment for the 
 benefit of all the creditors, for otherwise it would be special 
 
 4 Wasli. C. C. 232; Keyes v. Brush, 86; Strong v. Carrier, 13 Conn. 319; 
 
 2 Paige 311; Cunningham v. Free- Petrikin v. Davis, Morris 296; Nye 
 
 born, n Wend. 241, s. v;. i Edw. v. Van Husan, 6 Mich. 329, 74 Am. 
 
 256, 3 Paige 537; Meeker z/. Sanders, Dec. 690; Sadler v. Immel, 15 Nev. 
 
 6 Iowa 61; Parker z/. Price, 11 Iowa 265. 
 
 144; Gordon v. Cannon, 18 Gratt. IBrown v. Lyon, 17 Ala. 659. 
 
 387; Forbes v. Scannell, 13 Cal. 242; ^Halsey v. Whitney, 4 Mason 
 
 I/inn V. Wright, 18 Tex. 317, 70 Am. 206; Spring v. Strauss, 3 Bosw. 607; 
 
 Dec. 282; Haven v. Richardson, 5 Emerson v. Knower, 25 Mass. 63; 
 
 N. H. 113; Deaver t/. Savage, 3 Mo. Woodward v. Marshall, 39 Mass. 
 
 252, 25 Am. Dec. 437; Duvall v. 468; Haven v. Richardson, 5 N. H. 
 
 Rasin, 7 Mo. 449; Robins v. Embry, 113; Rundlett v. Dole, 10 N. H. 
 
 I S. & M. Ch. 207; exr parte Con- 458; Clark v. Mix, 15 Conn. 152; 
 
 way, 12 Ark. 302; U. S. Bank v. Birchell v. Strauss, 28 Barb. 293. 
 Huth, 4 B. Mon. 423; Dana v. Lull, 3Crow v. Ruby, 5 Mo. 484; Drake- 
 
 17 Vt. 390; Kevan v. Branch, i Gratt. ley v. Deforest, 3 Conn. 272; Ryer- 
 
 274; Brown v. Lyon, 17 Ala. 659; son v. Eldred, 18 Mich. 12. 
 Shackelford v. Planters' Bank, 22 ^Haven v. Richardson, 5 N. H. 
 
 Ala. 238; HoUister v. Loud, 2 Mich. 113; England v. Reynolds, 38 Ala. 
 
 309; Matthews v. Poultney, 33 Barb. 370. 
 127; Robinson v. Rapelye, 2 Stew. BMoir v. Brown, 14 Barb. 39. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 356 
 
 as to the persons named.-' 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.^ It is a direction 
 to pay the sum due, whatever that may be.^ The fact that 
 some of the creditors are workmen is immaterial.* There 
 need be no schedule of the creditors to whom no prefer- 
 ence is given.'' An omission of the schedule of preferred 
 creditors will not make the assignment void when the 
 other trusts are capable of execution.® Creditors may be 
 required to cause the amount of their claims to be written 
 on a schedule.^ If the trust is declared in the assignment, 
 the parties may provide for a future enumeration and an- 
 nex schedules subsequently,® or may allow additions to be 
 made to the schedule of creditors with the consent of the 
 debtor, the assignee and any one of the creditors.^ A clause 
 which requires an oath to be made by the omitted credit- 
 ors, at the option of the assignee, does not make the assign- 
 ment void, for it merely reposes confidence in him in the 
 discharge of his duties.^" 
 
 § 321. Omission of Schedules is Badge of Fraud.— The 
 
 omission of schedules is, however, a badge of fraud." This 
 is but an application of the maxim that fraud lurks in loose 
 
 lEngland v. Reynolds, 38 Ala. v. Hair, 16 B. Mon. 230; Clap v. 
 
 370; Brown v. Knox, 6 Mo. 302; U. Smyth, 33 Mass. 247. 
 S. Bank v. Huth, 4 B. Mon. 423; AHalsey v. Whitney, 4 Mason 
 
 Barcroft v. Snodgrass, i Cold. 430; 206. 
 
 Van Hook v. Walton, 28 Tex. 59; lOHalsey v. Whitney, 4 Mason 
 
 vide Caton v. Moseley, 25 Tex. 374. 206. 
 
 2Layson v. Rowan, 7 Rob. (La.) "Brown v. Lyon, 17 Ala. 659; 
 
 i; Van Hook v. Walton, 28 Tex. 59- I'i«ie v. Rikert, 21 Barb. 469; Kel- 
 
 SButt V. Peck, I Daly, 83. loggf . Slauson, 11 N. Y. 302; s._ c. 
 
 4Bank v. Talcott, 22 Barb. 550. 15 Barb. 56; Van Nest v. Yoe, i 
 
 SHalsey v. Whitney, 4 Mason Sandf . Ch. 4; Pearpoint v. Graham, 
 
 206. 4 Wash. C. C. 232; Stevens v. Bell, 
 
 6Scott V. Guthrie, loBosw. 408; s. 6 Mass. 339; Halsey v. Whitney, 4 
 
 c. 25 How. Pr. 512. Mason, 206; Wilt v. Franklin, i 
 
 7Todd V. Bucknam, 11 Me. 41- Binn- 502, 2 Am. Dec. 4741 Young v. 
 
 8Halsey». Whitney, 4 Mason 206; Gillespie, 12 Heisk. 239; McMillan 
 
 Bank V. Talcott, 22 Barb. 550; Ely v. Knapp, 76 Ga. 171, 2 Am. St. 
 
356 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 generalities. It is, moreover, difficult to conceive of any- 
 thing 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.^ 
 
 § 323. Vesignation of Assignee. — The assignee must be 
 designated. When the assignment is made to partners, it 
 is not material whether they are designated by the firm 
 name or their individual names, if the language used is 
 such as to indicate with certainty the persons who are 
 nominated as assignees.^ The insertion of the name of 
 the assignee is essential to the validity of the instrument.* 
 
 § 323. Delivery. — A delivery of the assignment to the 
 assignee is suflScient.* A delivery in fact or in law to some 
 person, or into some place beyond the debtor's control, is 
 indispensable.^ A delivery to the clerk to be recorded,* 
 or to third person,^ or a deposit of it in the postoffice,^ 
 
 Rep. 29; Turnipseed v. Schaefer, 76 Read v. Worthington, 9 Bosw. 617. 
 
 Ga. 109, 2 Am. St. Rep. 17. sporbes v. Scannell, 13 Cal. 242. 
 
 ICummings v. McCullough, 5 SReamer v. Lamberton, 59 Penn. 
 
 Ala. 324; Overton v. Hollinshade, 5 462. 
 
 Heisk. 283. In Indiana, the schedule ^Jngraham v. Grigg, 21 Miss. 22. 
 
 need not be recorded witb the SMarston v. Coburn, 17 Mass. 
 
 assignment. Black v. Weathers, 26 454; M'Kinney v. Rhoades, 5 Watts, 
 
 lud. 242. In New York, by act of 343; Brevard v. Neely, 2 Sneed, 
 
 i860, Ch. 348, § 2, the debtor is 164; Caldwell v. Bruggerman, 4 
 
 reqiiired within twenty days to Minn. 270; Van Hook v. Walton, 
 
 make and deliver to the county 28 Tex. 59; Truss v. Davidson, 90 
 
 judge an inventory verified by affi- Ala. 359, 7 So. 812; Golden's Ap- 
 
 davit. A failure to comply with the peal, 110 Penn. St. 581, i Atl. 660; 
 
 statute makes the assignment void. Kingston v. Koch, 57 Hun 12, 10 N. 
 
 Juhand v. Rathbone, 39 N. Y. 369; Y. Supp. 363. 
 
 Fairchild v. Gwynne, 16 Abb. Pr. 23, STompkins v. Wheeler, 16 Pet. 
 
 s. c. 14 Abb. Pr. 121; De Camp v. 106; Major z/. Hill, 13 Mo. 247; Hoff- 
 
 Marshall, 2 Abb. Pr. (N. S.) 373. man v. Mackall, 5 Ohio St. 124, 64 
 
 Contra, Evans «. Chapin, 12 Abb. Am. Dec. 637. 
 
 Pr. 161; s. c. 20 How. Pr. 289; Van 7Moore v. Collins, 3 Dev. 126. 
 
 Vleet V. Slauson, 45 Barb. 317; Bar- SM'Kinney v. Rhoades, 5 Watts, 
 
 hour V. Everson, 16 Abb. Pr. 366; 343. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 357 
 
 is suflBcient. A delivery to one of two assignees will suf- 
 fice.^ 
 
 § 324. 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.^ The 
 mere taking of an instrument and retaining it is nothing. 
 An agreement to accept before the execution of the assign- 
 ment is sufficient.* The acceptance will be presumed* 
 but this presumption is liable to be rebutted.^ An ac- 
 ceptance before any adverse steps are taken by others is 
 sufficient.^ 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 
 desires to reduce it into possession, undeniably proves his 
 assent.* 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.^ Participation in the instrument of 
 assignment is conclusive evidence of acceptance.^" When 
 
 iHodenpuhl v. Hines, i6o Penn. BLampson v. Arnold, 19 Iowa, 
 
 St. 466, 28 Atl. 825. 479; Nailer v. Young, 7 Lea. 755. 
 
 2Crosby v. Hillyer, 24 Wend. 280; 7After acceptance of the trust 
 
 Quincy v. Hall, 18 Mass. 357, ir the assignee cannot relieve him- 
 
 Am. Dec. 198; Pierson v. Manning, self of responsibility by abandon- 
 
 2 Mich. 445; Royer Wheel Co. v. ment or by conveyance to another. 
 
 Fielding, 31 Hun. 274. but he must be relieved by the 
 
 SHoffman v. Mackall, 5 Ohio St. court. Mcllhenny v. Todd, 71 Tex. 
 
 124, 64 Am. Dec. 637. 400, 10 Am. St. Rep. 753, 9 S. W. 
 
 4Wiltz/. Franklin, i Binn. 502, 2 445; Seal v. Duffy, 4 Penn. St. 274, 
 
 Am. Dec. 474; M'Kinney v. Rhoades. 45 Am. Dec. 691. 
 
 5 Watts, 343; Siggers v: Evans, 32 ^Ex parte Conway, 12 Ark. 302; 
 
 Eng. L. & Eq. 139. See Burrill on Flint v. Clinton Co., 12 N. H. 430; 
 
 Assignments, 6th ed., sec. 239. State v. Benoist, 37 Mo. 500.' 
 
 6Wilt V. Franklin, i Binn. 502, 9Cunningham v. Freeborn, 11 
 
 1 Am. Dec. 474; Crosby v. Hillyer, Wend. 241; s. c. i Edw. 256; 3 Paige, 
 24 Wend. 280; Pierson z;. Manning, 537; Price z/. Parker, 11 Iowa, I44- 
 
 2 Mich. 445; Spencer z/. Ford, 2 Rob. lOCom. Nat. Bank v. Mosser, 57 
 Va. 648. Mich. 386, 24 N. W. 115. 
 
358 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 there are two assignees, if one refuses to accept, the other 
 assignee becomes vested with the trust in the same man- 
 ner as if the dissenting assignee had not been named in the 
 instrument.^ 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 aflBrm it as to some debts and disaflBrm it as to 
 others.^ The assignee's title to the goods is complete by 
 the execution of the assignment, subject to be defeated by 
 his laches is not giving reasonable notice, or in not follow- 
 ing up his title to possession.^ 
 
 § 325. Notice to Creditors. — The recording of an assign- 
 ment is, in the absence of fraud, suflBcient notice to creditors.* 
 
 § 336. Legal Etfect. — An assignment creates a trust. All 
 the legal interests vest nominally in the assignee, but 
 substantially in the cestuis que trustent or creditors, and the 
 residuum, if any, after the payment of debts results to the 
 grantor. The assignee has not even a beneficiary interest 
 in the estate; he is seized for others, and not for himself.^ 
 The moment he is seized, that moment all the substantial 
 interests pass out of him into others. He is merely the 
 legal recipient or organ by which the conveyance is ren- 
 
 iMead v. Phillips, i Saiidf. Ch. land, Mississippi, Missouri, Ne- 
 
 83; Moir V. Brown, 14 Barb. 39, Met- braska. New Jersey, New Mexico, 
 
 calf V. Van Brunt, 37 Barb. 621; New York, North Carolina, North 
 
 Gordon v. Coolidge, i Sumner, Dakota, Oregon, Pennsylvania, 
 
 537; ex parte Conway, 12 Ark. 302; South Dakota, Tennessee, Texas, 
 
 Forbes v. Scannell, 13 Cal. 242. Vermont, Virginia, West Virginia. 
 
 ^Gordon v. Coolidge, i Sumner Creditors are affected by actual 
 
 537- notice of an unrecorded assignment. 
 
 SBholeu V. Cleveland, 5 Mason Dixon v. Doe, 1 S. & M. 70. See 
 
 174; West V. Tupper, i Bailey 193; Henderson v. Downing, 24 Miss. 
 
 Frazier v. Fredericks, 24 N. J. 162; io5. 
 
 Wilt w. Franklin, i Bin. 502, 2 Am. 6The assignee is the representa- 
 
 Dec. 474. Contra, Caldwell v. tive of the creditors. Best v. John- 
 
 Bruggerman, 4 Minn. 270. son, 78 Cal. 217, 12 Am. St. Rep. 41, 
 
 ^Farquharson v. Eichelberger, 15 20 Pac. 415; Moore v. Williamson, 
 
 Md. 63. In the following states 44 N.J. Eq. 496, I Iv. R. A. 336, 15 
 
 recording is required by statute: Atl. 587; Mannix v. Purcell, 46 Oh. 
 
 Arizona, California, Colorado, Con- St. 102, 15 Am. St. Rep. 562, 2 I/. R. 
 
 necticut, Florida, Illinois, Indiana, A. 753, 19 N. E. 572, 21 Oh. L. J. 72. 
 
 Iowa, Kansas, Kentucky, Mary- See section 318, ante, notes. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 369 
 
 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.^ 
 
 § 327. Incident of Ownership. — The right to make an 
 assignment results from that absolute dominion which every 
 man has over that which is his own; and is not of itself 
 calculated to excite suspicion.^ If a debtor can make a 
 valid assignment of his property to his creditors to pay 
 his debts, he can execute a like conveyance to an assignee 
 to discharge the demands of his creditors. The assignee 
 is the medium through which the payment is directed to 
 be made. He is seized of the legal estate for the benefit 
 of the creditors, all equity being in the cestuis que trustent, 
 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 
 legal duty, to pay, in the other it is but the performance of 
 the same act, and is supported by the same just considera- 
 tion. 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 per- 
 formance of this duty can not be deemed a fraud. Such an 
 
 "^ Ex parte Conway, 12 Ark. 302; sition and management of the 
 
 U. S. Bank z/. Huth,4 B. Mon. 423; estate. He becomes an officer of 
 
 Hall V. Dennison, 17 Vt. 310; Hous- the law, and must be governed by 
 
 ton V. Nowland, 7 G. & J. 480; Mar- it under the direction of the court.' ' 
 
 bury V. Brooks, 7 Wheat. 556; s. c. Moody v. Carroll, ^t Tex. 143, 10 
 
 II Wheat. 78; Boardman v. Willard, Am. St. Rep. 734, 8 S. W. 510; Pant 
 
 73 la. 20, 34 N. W. 487. When a v. Elsbury, 68 Tex. 6, 2 S. W. 866; 
 
 statutory assignment is made, " the Schoolher v. Hutchins, 66 Tex. 328- 
 
 law becomes a part of the deed and 329, i S. W. 266. 
 
 controls the assignee in the dispo-, SBrashear v. West, 7 Pet. 608. 
 
360 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 assignment is usually made to an assignee because this 
 mode of .distributing the. fund is in general far more con- 
 venient than for the debtor to make payment directly to 
 the creditors themselves. It is doing the same thing indi- 
 rectly instead of directly.^ 
 
 § 328. Who may Assign^ — Corporation. — A corporation, 
 unless restrained by some statute or express provision in 
 its charter, may make an assignment as well as an individ- 
 ual.* But the assignment to be valid must be made in 
 
 'i^Ex parte Conway, 12 Ark. 302. 
 
 ^''Assignments for tie benefit of 
 creditors are commonly made by 
 persons engaged in business, as 
 traders, merchants, manufacturers, 
 mechanics, and the like, either as 
 individuals or as corporations. Any 
 person, however, of sound mind 
 and not laboring under legal dis- 
 abilities, may make such a disposi- 
 tion of his or her property." Bur- 
 rill on Assignments, 6th Bd., sec. 41. 
 
 SHill V. Reed, 16 Barb. 280; Mc- 
 Callie V. Walton, 37 Geo. 611; State 
 V. Bank, 6 G. & J. 205; Union Bank 
 V. Ellicott, 6 G. &. J. 363; De Ruy- 
 ter V. St. Peter's Church, 3 N, Y. 
 238; s. c. 3 Barb. Ch. iig; Pope v. 
 Brandon, 2 Stew. 401; Robins v. 
 Embry, i S. & M. Ch. 207; ex parte 
 Conway, 12 Ark. 302; Flint v. Clin- 
 ton Co.', 12 N. H. 430; Hopkins v. 
 Gallatin Co., 4 Humph. 403; London 
 V. Parsley, 7 Jones (N. C.) 313; Cham- 
 berlain V. Bromberg, 83 Ala. 576, 3 
 So. 434; Albany Iron Co. v. 
 Southern Agr. Works, 76 Ga. 135, 
 2 Am. St. Rep. 26; Fietsam v. Hay, 
 122 111. 293, 3 Am. St. Rep. 492, 13 
 N. E. 501; Covert z/. Rogers, 38 Mich. 
 363, 31 Am. Rep. 319; Foster v. Mul- 
 lanphy Planing Mill Co., 92 Mo. 79, 
 4 S. W. 260; Wright V. Lee, 2 S. D. 
 596, 51 N. W. 706; Cartwright v. 
 Dickinson, 88 Tenn. 478, 17 Am. St. 
 Rep. 910, 12 S. W. 1030; Nyman v. 
 Berry, 3 Wash. 734, 29 Pac. 557; 
 
 Burrill on Assignments, 6th Ed.,seCi. 
 45; Thompson's Commentaries on 
 Corporations, vol 5, sec. 6466, and 
 cases cited. 
 
 And see article by J. L. High in 
 3 So. Law Rev., (N. S.) 553. Oct. 
 1877, and section 318, ante. 
 
 Such an assignment passes un- 
 paid stock subscriptions. Thomp- 
 son's Commentaries on Corpora- 
 tions, vol. 5, section 6469; vol. 2, 
 section 1818; Lewis v. Glenn, 84 Va. 
 947; 21 Am. and Eng. Corp. Cases, 
 569, 6 S. E. 866. 
 
 It is the duty of the assignee to 
 collect such unpaid subscriptions. 
 Cartwright v. Dickinson, 88 Tenn. 
 478, 17 Am. St. Rep. 910, 12 S. W. 
 1030; Savings Association v, 
 O'Brien, 51 Hun 45, 3 N. Y. Supp.. 
 764; Hamilton v. Glenn, 85 Va. 901, 
 9 S. E. 129. 
 
 Such an assignment passes the 
 right of action which the corpora- 
 tion has against its directors for 
 mismanagement of its affairs. 
 Thompson's Commentaries on Cor- 
 porations, vol. 5, section 6472, 
 citing Wallace v. Lincoln Savings 
 Bank, 89 Tenn. 630, 24 Am. St. Rep. 
 625, 15 S. W. 448. 
 
 "Such an assignment does not, 
 according to one view, pass the 
 franchises of the corporation in the 
 absence of an enabling statute, 
 (citing Lehigh Iron Co's Estate, 12 
 Pa. Co. Ct., 257), though the sec- 
 
ASSIGNMENTS FOR THE BENEFIT OP CREDITORS. 361 
 
 pursuance of a resolution of the board of director^.! An 
 assignment may be made by an executor.^ A lunatic's 
 assignment is not void, but voidable.^ 
 
 § 329. Partners may Assign.— It is not competent for one 
 partner, without the assent or authority of the other 
 partners, to make a general assignment of the partnership 
 property to a trustee for the payment of debts. Each 
 partner possesses 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 busi- 
 
 ondary franchises of a corporation 
 are capable of alienation and are 
 vendible in execution. There is, 
 therefore, no good reason why such 
 an assignment should not pass 
 those franchises which are vendi- 
 ble in execution, which are subject 
 to taxation, and which, roughly 
 speaking, consist of the opportuni- 
 ties of making money which the 
 corporation has, under special privi- 
 leges which have been conferred 
 upon it by charter, statute, or muni- 
 cipal ordinance — such as the right 
 to occupy certain streets of a city 
 
 with a railroad." "A 
 
 primary franchise is the right to be 
 a corporation, and this is vested in 
 the individuals composing the cor- 
 poration itself. Such a franchise 
 is, therefore, not assignable as the 
 property of the corporation, because 
 it is not its property." Thompson's 
 Commentaries on Corporations, vol. 
 5, section 6471. 
 
 Assignments by corporations, in 
 contemplation of insolvency, are 
 prohibited in New York by statute. 
 See 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, 30 
 
 Barb. 644; Harris v. Thompson, 15 
 Barb. 62. 
 
 IRichardson v. Rogers, 45 Mich. 
 591, 8 N. W. 526. The directors 
 may make an assignment — in the 
 absence of charter or statutory 
 prohibitions — without the consent 
 of the stockholders, and even 
 kgainst their will. Chase v. Tuttle, 
 55 Conn. 455, 3 Am. St. Rep. 64, 
 12 Atl. 874, 19 Am. & Eng. Corp. 
 Cases 122, see note; Chew v. EHing- 
 wood, 85 Mo. 260, 56 Am. Rep. 429; 
 Descombes v. Wood, 91 Mo. 196, 60 
 Am. Rep. 239, 4 S. W. 82; Epp- 
 wright V. Nickerson, 78 Mo. 482. 
 
 But see contra, Gibson v. Goldth- 
 waite, 7 Ala. 281, 42 Am. Dec. 592. 
 
 ^Wolverhampton Bank v. Mars- 
 ton, 7 H. & N. 146. 
 
 SRiley V. Carter, 76 Md. 581, 35 
 Am. St. Rep. 443, 19 L. R. A. 489, 
 25 Atl. 667; Odom V. Reddick, 104 
 N. C. 515, 17 Am. St. Rep. 686, 10 
 S. E. 609; Pier.son v. Cox, 71 Tex. 
 246, 10 Am. St. Rep. 740, 9 S. W. 
 124. But a lunatic's assignment is 
 absolutely void, if, at the time of 
 its execution, he was completely 
 unable to understand the nature of 
 the transaction. Aldrich v. Bailey, 
 132 N. Y. 85, 30 N. E. 264. 
 
^^2 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 ness. 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 
 <50urse 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 part- 
 nership, but outside and subversive of it, No such authority 
 as that can be implied from the partnership relation.^ One 
 partner, however, may execute an assignment when he has 
 previous authority.^ The same reason applies where an 
 ■extraordinary emergency occurs in the affairs of the 
 
 iWelles 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. Ivull, 
 
 17 Vt. 390; Hook V. Stone, 34 
 Mo. 329; Gates v. Andrews, 
 .37 N. Y. 657, 97 Am. Dec. 
 
 764; Stein V. La Dow, 13 Minn. 412; 
 Havens v. Hussey, 5 Paige, 30; 
 Hitchcock V. St. John, i Hoff. Ch. 
 511; Kirby v. Ingersoll, Harring. 
 Ch. 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. I/. Reg. 203; Mauglin v. Tyler, 
 47 Md. 545. Contra, Deckard v. 
 Case, 5 Watts, 22, 30 Am. Dec. 287; 
 Hennessey v. Western Bank, 6 W. 
 & S. 300, 40 Am. Dec. 560; Robin- 
 son V. Crowder, 4 McCord, 519, 17 
 Am. Dec. 762; Gordon v. Cannon, 
 
 18 Gratt. 387; Crittenden v. Hill, 
 Minn., 63 N. W. 1030; Loeb v. 
 Pierpont, 58 la. 469, 12 N. W. 544, 
 
 .42 Am. Rep. 122, 22 Am. Law Reg. 
 34, where the subject is discussed 
 in an able note by Marshall D. 
 
 E well. 
 
 "Thus far there is no American 
 case which says that one partner, 
 when the other partners are pres- 
 ent, may, without their consent, 
 make a general assignment of the 
 firm effects to a trustee for the 
 benefit of creditors." 1 Am. Lead- 
 ing Cases, 441, editor's note. 
 
 2Welles V. March, 30 N. Y. 334; 
 Baldwin v. Tynes, 19 Abb. Pr. 32; 
 Kelly V. Baker, 2 Hilt, 531; Roberts 
 V. Shephard, 2 Daly, no; Harrison 
 V. Sterry; 5 Cranch, 289; Kendall v. 
 New Eng. Carpet Co., 13 Conn. 
 383; Pike V. Bacon, 2i Me. 280, 
 38 Am. Dec. 289; Kemp v. Carn- 
 ley, 3 Duer, i; Forbes v. Scan- 
 nell, 13 Cal. 242; Lassel v. 
 Tuckner, 5 Sneed, 1; Williams 
 V. Frost, 27 Minn. 255; Rock 
 Island Plow Co. v Long, 55 
 Mo. App. 349; Paul V. Cullum, 132 
 U. S. 539, 10 S. Ct. 151; Shattuckz/. 
 Chandler, 40 Kans. 516, 10 Am. St. 
 Rep. 227, 20 Pac. 225; Loeb v. Pier- 
 pont, 58 la. 469, 42 Am. Rep. 122, 
 12 N. W. 544, 22 Am. Law Reg. 34. 
 
 The authority may be by parol. 
 Hooper v. Baillie, 118 N. Y. 413, 23 
 N. E. 569- 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 363 
 
 partnersMp 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^ or in a foreign country.^ One partner may also 
 make an assignment when the other partner assents,^ or 
 absconds/ or has sold out his interest to the assignor.' A 
 dormant partner need not execute the assignment.^ Sur- 
 viving partners may make an assignment.^ Partners may 
 
 iMcCullough V. Sunimerville, 8 
 Leigh, 415; Kellar v. Self, 5 Tex. 
 Civ. App. 393, 24 S. W. 578. 
 
 ^Forbes v. Scannell, 13 Cal. 242; 
 Anderson v. Tompkins, i Brock. 
 456. 
 
 SEly V. Hair, 16 B. Mon. 320; 
 Mills V. Argall, 6 Paige, 577. 
 
 ^Palmer v. Myers, 29 How. Pr. 8, 
 s. i;. 43 Barb. 9; National Bank v. 
 Sackett, 2 Daly, 395; Sullivan v. 
 Smith, 15 Neb. 476, 48 Am. Rep. 
 354, 19 N. W. 620. 
 
 SClark V. McClelland, 2 Grant, 31. 
 
 BDrake v. Rogers, 6 Mo. 317. 
 
 7"When a partnership is dis- 
 polved by the death of one partner, 
 the surviving partner is entitled to 
 the possession and control of the 
 joint property for the purpose of 
 clo.sing up its business. To that 
 end and for the purpose of paying 
 the joint defcts, he may, according 
 to the settled principles of the law 
 of partnership, administer the 
 affairs of the firm, and by sale, or 
 other reasonable disposition of the 
 property, make provision for meet- 
 ing its obligations. He could not 
 otherwise properly discharge the 
 duty that rests on him to wind up 
 the business and pay over to the 
 representatives of the deceased 
 partner what may be due him after 
 
 the final settlement of the joint 
 debts. It is true that in many 
 cases — when, for instance, the sur- 
 viving partner is not exercising due 
 diligence in settling the partner- 
 ship business, or is acting in bad 
 faith, the personal representative of 
 the deceased partner may invoke 
 the interference of a court of equity 
 and compel such a distribution of 
 the partnership effects as will 
 be just and proper, this because, 
 as between the partners, and 
 therefore as between the surviving 
 partner and the representatives of 
 the deceased partner, the joint 
 assets constitute a fund to be de- 
 voted primarily to the discharge of 
 partnership liabilities; though not 
 necessarily and under all circum- 
 stances upon terms of equality as 
 to all the joint creditors. But, 
 while a surviving partner is under 
 a legal obligation to account to the 
 personal representative of a de- 
 ceased partner, the latter has no 
 such lien upon the joint assets as 
 would prevent the former from dis- 
 posing of them for the purpose of 
 closing up the partnership affairs. 
 He has a standing in court only 
 through the equitable right which 
 his intestate had, as between him- 
 self and the surviving partner, to 
 
364 ASSIGNMENTS FOR THE BENEFIT OP CREDITORS. 
 
 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.^ And an assignment by one partner will be good 
 against subsequent execution creditors unless the other 
 dissents from it.^ 
 
 § 330. Incidental Delay. — The necessary effect of every 
 general 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 
 remedies, and thus tends to hinder those who are disposed 
 to prosecute their suits.^ Not only is such its necessary 
 effect, but the actual intent of the debtor generally is to 
 place the property beyond the immediate power and action 
 of his creditors, by 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 
 
 have the joint property applied in St. Rep. 443, 19 L. R. A. 489, 25 Atl. 
 
 good faith to the liquidation of the 667; French v. Lovejoy, 12 N. H. 
 
 joint liabilities. With the concur- 458; Egberts v. Wood, 3 Paige 217, 
 
 rence of all the partners, the joint 24 Am. Dec. 236; Hutchinson v. 
 
 property could have been sold or Smith, 7 Paige 26; Sweet z/. Taylor, 
 assigned for the benefit of prior ' 36 Hun 256; Williams v. Whedon, 
 
 creditors of the firm, the surviving 109 N. Y. 333, 4 Am. St. Rep. 460, 
 
 partner — there being no statute for- 16 N. E. 365; Patton v. Iveftwich, 
 
 bidding — can make the same dispo- 86 Va. 421, ig Am. St. Rep. 902, 10 
 
 sition of it. The right to do so S. E. 686. 
 
 grows out of his duty, from his re- Contra Barcroft v. Snodgrass, i 
 
 lations to the property, to adminis- Cold. 430. 
 
 ter the affairs of the firm so as to lYates v. Lyon, 61 N. Y. 344, 61 
 
 close up its business without un- Barb. 205; contra. Fox v. Heath, 21 
 
 reasonable delay." Emerson v. How. Pr. 384, 16 Abb. Pr. 163. 
 Senter, 118 U. S., 3-9, 6 S. Ct. 981. SHodenpuhl z/. Hines, 160 Pa. St. 
 
 Supporting this doctrine that sur- 466, 28 Atl. 825. 
 viving partners may assign see Shat- SDunham v. Waterman, 17 N. Y. 
 
 tuck z;. Chandler, 40 Kans. 516, 10 9, s. c. 6 Abb. Pr. 357, 72 Am. Dec. 
 
 Am. St. Rep. 227, 20 Pac. 225; 406, 3 Duer 166; vide Burdick v. 
 
 Riley v. Carter, 76 Md. 581, 35 Am. Post, 12 Barb. 168, s. c. 6 N. Y. 522. 
 
ASSIGNMENirS FOR THE BENEFIT OF CREDITORS. 365 
 
 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.^ 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. 
 
 § 331. What Intent is Necessary.— The object of the 
 statute is to prevent deeds fraudulent in their inception 
 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.^ Fraud depends not upon the 
 fact of delay, but upon the character of the delay and 
 the motive which actuates it.^ The statute was never 
 
 iPickstock V. Lyster, 3 M. & S. Congdon, 44 N. H. 48; Church v. 
 
 371; King V. Watson, 3 Price, 6. Drummond, 7 Ind. 17; Gates v. La- 
 
 2U. S. Bank v. Huth, 4 B. Mon. beaume, 19 Mo. 17; Baldwin v. Peet, 
 
 423; HoUister v. Loud, 2 Mich. 309; 22 Tex. 708, 75 Am. Dec. 806. 
 
 Meux V. Ho-well, 4 East i; Hafner ^Christopher v. Covington, 2 B. 
 
 V. Irwin, i Ired. 490; U. S. v. Bank Mon. 357. 
 of U. S., 8 Rob. (La.) 262; True -v. 
 
366 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 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.^ 
 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.^ All the law can reasonably demand 
 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 incident 
 to a lawful act does not vitiate the transfer.^ 
 
 § 332. Intent to Defeat Execution. — Although the intent 
 to deprive all or particular creditors of their lawful suits, 
 
 iHafner v. Irwin, i Ired. 490. main and primary purpose, in the 
 
 2U. S. Bank v. Huth, 4 B. Mon. other it is only an incidental effect. 
 
 423; Nimmo v. Kuykendall, 85 111. Eyre v. Beebe, 28 How. Pr. 333; 
 
 476. Stickney v. Crane, 35 Vt. 89; Bald- 
 
 3Ho£Eman v. Mackall, 5 Ohio St. win v. Peet, 22 Tex. 708, 75 Am. 
 
 124, 64 Am. Dec. 637; Townsendz/. Dec. 806; Hazel z/. Bank of Tipton, 
 
 Stearns, 32 N. Y. 209; Guerin v. 95 Mo. 60, 6 Am. St. Rep. 22, 8 S. 
 
 Hunt, 8 Minn. 477, s. c. 6 Minn. W. 173; Holmes v. Braidwood, 82 
 
 375. In some of the cases it is said Mo. 610; Shelley v. Boothe, 73 Mo. 
 
 that the fraud depends upon the 77, 39 Am. Rep. 481; Alberts. Besel, 
 
 primary motive. If the primary 88 Mo. 150; Potter v. McDowell, 31 
 
 motive is to delay, then the assign- Mo. 75; Singer v. Goldenberg, 17 
 
 ment is fraudulent; but if the Mo. App. 550; Arnold v. Hagerman, 
 
 primary motive is to make a dis- 45 N. J. Eq. 186, 14 Am. St. Rep. 
 
 tribution of the property, it is valid. 712, 17 Atl. 93. 
 In one hindrance or delay is the 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 367 
 
 and Mnder and delay them in the recovery of their just 
 demands, is confessed or proved, still the assignment, if 
 by its terms all the property which it embraces must be 
 applied ratably or otherwise to the payment of debts, is 
 upheld as valid and effectual. The mere intent to avoid 
 an execution or other legal process does not in point of 
 law make it void.^ It may even be made on the same day 
 that a verdict is rendered against the assignor ,2 or the 
 claim of the creditor assailing it may be specially in the con- 
 templation of the debtor.^ It will not in such case be void, 
 even as against the persons who are in fact very materially 
 hindered and delayed, and were meant to be so. The expla- 
 nation 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 prohibited.* 
 
 It makes no difference, therefore, that the debtor is in 
 
 iRiches v. Evans, 9 C. & P. 640; the execution which would have 
 
 Darvil v. Terry, 6 H. and N. 811; issued on the suing creditor's 
 
 Johnson v. Osenton, L. R. 4 Ex. judgment. The court based its 
 
 107; I/ee V. Green, 35 Eng. L. & Eq. judgment on the principles that the 
 
 261; Bo wen v. Bramidge, 6 C. & P. motive to defeat the particular cred- 
 
 140; Wolverhampton Bank v. Mars- itor, not for the purpose of saving 
 
 ton, 7 H. & N. 146; Wilt V. Franklin, some benefit to the debtor, but in 
 
 I Binn. 502, :2 Am. Dec. 474; Jackson order to secure a division of the 
 
 V. Cornell, i Sandf. Ch. 348; Hey- property among all the creditors, 
 
 dock V. Stanhope, i Curt. 471; Reed was a motive arising from adherence 
 
 V. Mclntyre, 98 U. S. 507; vide to duty rather than from intent to 
 
 Dalton V. Currier, 40 N. H. 237. defraud; and further that the right 
 
 The doctrine of the text is stated by of the debtor to postpone a particu- 
 
 l/ord Ellenborough in Pickstock v. lar creditor in favor of others was 
 
 Lyster, 3 Mau. & S. 371. In that case as clear as his right to prefer a par- 
 
 a debtor being actually insolvent, ticular creditor. See Holbird v. 
 
 was sued by one of his creditors, Anderson, 57 T. R. 235, and Steph- 
 
 and while the suit was pending son v, Hayward, Pi:ec. Ch. 310. 
 . and before execution he assigned 2jackson v. Cornell, i Sandf. Ch. 
 
 all his property to trustees for the 348. 
 
 benefit of all his creditors. The ^Horwitz v. Ellinger, 31 Md. 492. 
 
 assignment was held valid, although ^Hoffman v. Mackall, 5 Oh. St. 
 
 made with the intent of defeating 124, 64 Am. Dec. 637. 
 
368 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 failing circumstances, that suits are threatened, that judg- 
 ments exist against him, or that executions against him 
 are momentarily expected. Under any or all of these con- 
 tingencies he has the full and absolute right to dispose of 
 his property for the payment of his debts.^ The fact, 
 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 
 creditors, does not make the assignment invalid. Such is 
 generally the motive to the making of such an assignment.^ 
 
 § 333. 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.^ If the assignment is such as 
 the law authorizes and approves, the secret motives that 
 prompted it are entirely immaterial.* 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 dis- 
 qualify him from making an appropriation of it for the 
 iDenefit of his creditors.^ This moreover, is not the kind of 
 fraud that makes an assignment void. The only illegality 
 which avoids it is that which makes or endeavors to make 
 it the instrument of defeating or delaying the collection of 
 debts. It is not, therefore, for the same reason 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 misrepresentation on the part of the 
 debtor in the creation of the debt due to him.^ 
 
 iStewart v. English, 6 Ind. 176; Macintosh v. Corner, 33 Md. 598; 
 
 Hollister v. I<oud, 2 Mich. 309. Wilson v. Berg, 88 Penn. 167. 
 
 !*Horwitz V. Ellinger, 31 Md. 492. spike v. Bacon, 21 Me. 280, 38 
 
 3Pike V. Bacon, 21 Me. 280, 38 Am. Dec. 259. 
 Am. Dec. 259. SHorwitz v. Ellinger, 31 Md. 492; 
 
 <iHorwitz V. Ellinger, 31 Md. 492; Mattisdfc v. Demarest, 4 Robt. 161; 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 369 
 
 § 334. Fraudulent Intent.— Althougli an assignment is 
 made for the purpose of securing genuine debts, that may 
 not be the only purpose. It may be one purpose, and yet 
 the assignment may be fraudulently made.^ But the only 
 intent which will vitiate the assignment is a fraudulent 
 intent, that is, an intent which the law 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 
 beyend 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 assignment, 
 then it can only be invalidated by proof that the fraudulent 
 intent existed at the time of the execution of the assign- 
 ment.^ An assignment can not be made the means of cov- 
 ering 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 pei-iod, 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,^ 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.* 
 
 § 335. 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 
 
 Pearce v. Jackson, 2 R. I. 35; Rein- Van Hook v. Walton, 28 Tex. 59. 
 
 hard v. Bank of Ky., 6 B. Mon. 252; SKeevil'f. Donaldson, 20 Kans. 
 
 Kennedy v. Thorpe, 51 N. Y. 174. s. 165. 
 
 c. 2 Daly, 45, 3 Abb. Pr. (N. S.) 131; *State v. Benoist, 37 Mo. 500; 
 Waverly Bank v. Halsey, 57 Barb. Work z/. Ellis, 50 Barb. 512; Wilson 
 249; Talcott V. Rosenthal, 29 N. Y. v. Pearson, 20 111. 81; Byrd v. Brad- 
 Supr. 573; Ivininger v. Raymond, 12 ley, 2 B. Mon. 239; Smith v. Lea- 
 Neb. 19, 167. vitts, 10 Ala. 92; Caldwell v. Wil- 
 
 IState V. Benoist, 37 Mo. 500. liams, i Ind. 405; Fuller v. Ives, 6 
 
 SBailey v. Mills, 27 Tex. 434; McLean, 478. 
 
370 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 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.^ 
 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.^ If the 
 purchase, however, is in good faith, the giving of a note 
 and the making of an assignment shortly afterguards is no 
 fraud.^ 
 
 § 336. Fraud must be in the Beginning.— The only fraud 
 which will vitiate an assignment is fraud in its concoction. 
 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.* 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 
 
 lAngell V. Rosenburg, 12 Mich. 6 Barb, 91; Wilson v. Forsyth, 24 
 
 241; Shackelford z;. Planters' Bank, Barb. 105; Pike v. Bacon, 21 Me. 
 
 22 Ala. 238; Hefner v. Metcalf, i 280; Gates v. Labeaume, 19 Mo. 17; 
 
 Head, 577; Gere v. Murray, 6 Minn. Hempstead z*. Johnson, 18 Ark. 123, 
 
 305; vide Ward v. Trotter, 3 Mon. i. 65 Am. Dec. 458; Cornish v. Dews, 
 
 2L,itchfield v. Pelton, 6 Barb. 187; 18 Ark. 172; Beckz/. Parker, 65 Penn. 
 
 Cooke V. Smith, 3 Sandf. Ch. 333; 262, 3 Am. Rep. 625; Baldwin v. 
 
 Mills V. Carnley, i Bosw. 159. Buckland, 11 Mich. 389. 
 
 3I/oeschigk v. Baldwin, 38 N. Y. There is a distinction between 
 
 326, s. c. I Robt. 377. fraud in the assignment and fraud 
 
 ^Klapp V. Shirk, 13 Penn. 589; on the assignment, such as trans- 
 
 Shattuck V. Freeman, 42 Mass. 10; fers prior to the assignment, the 
 
 Petrikin v. Davis, Morris, 296; latter not being suflScient to avoid 
 
 Wooster v. Stanfield, 11 Iowa 128; the assignment. Millikin v. Hath- 
 
 Hotop V. Durant, 6 Abb. Pr. 371, away, 148 Mass. 69, i L. R. A. 510, 
 
 note; Cox v. Piatt, 32 Barb. 126; s. c. 19 N. E. 16; Moody v, Carroll, 71 
 
 19 How. Pr. 121; Matthews ». Poult- Tex. 143, 10 Am. St. Rep. 734, 8 S. 
 
 ney, 33 Barb. 127; Browning v. Hart, W. 510. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 371 
 
 that he took unwise or even apparently dishonest mleans 
 to preserve the property from litigation or levy by a 
 creditor.^ 
 
 § 337. 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 
 until they actually assent to it, but the obligation of the 
 assignee remains nevertheless, and is of itself sufficient to 
 support the conveyance.* In such a case, when the 
 creditors give their express assent to it, their debts con- 
 stitute an additional consideration.* 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 
 
 ICuyler v. McCartney, 40 N. Y. St. 434; Hollister v. Loud, 2 Mich. 
 
 221; s. c. 33 Barb. 165; Hotop v. 309. 
 
 Durant, 6 Abb. Pr. 371, note; Mat- ^Banning v. Nelson, 23 Ala. 801. 
 
 thews V. Poultney, 33 Barb. 127; U. BMyers v. Kinzie, 26 111. 36; Wise 
 
 S. Bank v. Huth, 4 B. Mon. 423; v. Wimer, 23 Mo. 237; Gates v. 
 
 Meeker v. Sanders, 6 Iowa, 61; Labeaume, 19 Mo. 17; State v. 
 
 Savery v. Spaulding, 8 Iowa, 239, Keeler, 49 Mo. 548; Wilson z;. Eifler, 
 
 74 Am. Dec. 300; Cox v. Piatt, 32 7 Cold. 31; Marbury v. Brooks, 7 
 
 Barb. 126; s. c. 19 How. Pr. 121; Wheat. 556; s. c. 11 Wheat. 78; Ban- 
 
 Shattuck z/. Freeman, 42 Mass. 10; croft v. Blizzard, 13 Ohio, 30; 
 
 Petrikin v. Davis, Morris, 296; Thomas f. Talmadge, 16 Ohio St. 
 
 Wooster v. Stanfield, 11 Iowa 128; 434! Cornish v. Dews, 18 Ark. 172; 
 
 Kicks V. Copeland, 53 Tex. 581, 37 Mandel v. Peay, 20 Ark. 325; Hollis- 
 
 Am. Rep. 760; Olney v. Tanner, 10 ter v. Loud, 2 Mich. 309; Governor 
 
 Fed. Rep. 171. '"■ Campbell, 17 Ala. 566; Abercrom- 
 
 2The assignee is the representa- bie v. Bradford, 16 Ala. 560; Holt v. 
 
 tive of the creditors. Moore v. Kelly, 13 Ir. L. R. 331 Ferrall w. 
 
 Williamson, 44 N. J. Eq. 496, i L- Farnen, 67 Md. 76, 8 Atl. Rep. 819; 
 
 R. A. 336, 15 Atl. 587; Best v. John- State, Levy v. Adler, 97 Mo. 413. 1° 
 
 son, 78 Cal. 217, 12 Am. St. Rep. 41, S. W. 824; Sipe v. Earman, 26 Gratt. 
 
 20 Pac. 415. 563; Roan v. Winne, 93 Mo. 503, 4 
 
 SBancroft v. Blizzard, 13 Ohio, S. W. 736. 
 
 30; Thomas v. Talmadge, 16 Ohio But contra. Loos v. Wilkinson, 
 
372 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 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.^ 
 An acceptance of the assignment with notice of such facts 
 as are sufficient to put him on the inquiry will invalidate 
 it.^ 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.* 
 
 § 338. 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.* The law, however, pre- 
 sumes that every person intends the consequences which 
 necessarily flow from his acts,^ and that he understands 
 the legal import of every instrument which he executes. 
 
 no N. Y. 19s, I L. R. A. 250, 18 N. 
 E. 99, 18 N. Y. St. Rep. no, 13 
 Cent. 427; Billings v. Russell, loi 
 N. Y. 226, 4 N. E. 531; Kingston v. 
 Koch, 57 Hun 12, 32 N. Y. St. Rep. 
 24, 10 N. Y. Supp. 363; Rathbun v. 
 Planter, 18 Barb. 272; Foley v. Bit- 
 ter, 34 Md. 646; Griffin v. Mar- 
 quardt, 17 N. Y. 28; s. c. 21 N. Y. 
 121; Mead v. Phillips, i Sandf. Ch. 
 83; Wilson V. Forsyth, 24 Barb. 105; 
 Kayser v. Heavenrich, 5 Kansas, 
 324; Hairgrove v. Millingtou 8 
 Kans. 480; Gere v. Murray, 6 Minn. 
 305; Stickney v. Crane, 35 Vt. 89; 
 Irwin V. Keen, 3 Whart. 347; Flaui- 
 gan V. Lampman, 12 Mich. 58; 
 I,ampson 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. Bloom, 59 Miss. 69, 42 
 Am. Rep. 351; Savage v. Knight, 92 
 N. C. 493- 
 
 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 ». Harwell, 18 Ala. 301; 
 Stewart v. Spencer, i Curt. 157; 
 Benning v. Nelson, 23 Ala. 801; 
 Green v. Banks, 24 Tex. 508; ^ald- 
 win V. Peet, 22 Tex. 708, 75 Am. 
 Dec. 806. 
 
 IState V. Benoist, 37 Mo. 500; 
 Caldwell v. Williams, i Ind. 405; 
 Caldwell V. Rose, i Smith, 190; 
 Stewart v. Spencer, i 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, 77 Am. Dec. 
 625. See sections 183 and 184, ante. 
 
 ^Stewart v. Spencer, i Curt. 157. 
 
 SGreeu v. Banks, 24 Tex. 508; 
 State V. Benoist, 37 Mo. 500; vide 
 Marbury v. Brooks, 7 Wheat. 556; 
 s. c. II Wheat. 78. 
 
 *Grover v. Wakeman, 11 Wend. 
 187, 25 Am. Dec. 624; per Senator 
 Edmonds. 
 
 BMackie v. Cairns, 5 Cow. 547; s. 
 c. I Hopk. 373. See sections 25-27, 
 ante. « 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 373 
 
 The construction of an instrument is a question of law. 
 Its legal effect is a matter upon which the court ought to 
 pass.i Whenever th-e 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 
 how the question of fraud in fact may stand.^ When an 
 assignment is fraudulent on its face it is void, without 
 reference to the actual knowledge of either the assignee or 
 the creditors. The fraudulent stipulation in the assign- 
 ment fixes the assignee and all the creditors claiming 
 under it with a concurrence in the unlawful intent.^ 
 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.* 
 
 § 339. Several lugtrunieuts may Constitute one Transaction. 
 
 — All papers executed in pursuance of an original design 
 contemplated and determined upon in the beginning, are 
 in law deemed to constitute ong transaction, and are con- 
 strued together, whether made on the same day^ or on dif- 
 
 ISheldon z/. Dodge, 4 Denio, 217. zard, i Stew. & Port. 139; Howell 
 
 2Green v. Trieber, 3 Md. 11; v. Edgar, 4 111. 417. 
 Malcolm v. Hodges, 8 Md. 418; spalmer j/. Giles, 5 Jones Eq. 75. 
 
 Inloes V. American Exchange Bank, ^Johnson v. McAllister, 30 Mo. 
 
 II Md. 173, 69' Am. Dec. 190; Good- 327; Dunham v. Waterman, 17 N. 
 
 rich V. Downs, 6 Hill, 438; Board- Y. 9; s. c. 6 Abb. Pr. 357, 3 Duer, 
 
 man e. Halliday, 10 Paige, 223; Ab- 166, 72 Am. Dec, 406. 
 • ercrombie v. Bradford, 16 Ala. 560; SMussey v. Noyes, 26 Vt. 462; 
 
 Pierson v. Manning, 2 Mich. 445; Kruse v. Prindle, 8 Oregon, 158; 
 
 Murray ji. Riggs, 15 Johns. 571; s. Schoolfield 27. Johnson, 11 Ped. Rep. 
 
 c. 2 Johns. Ch. 565; Harris v. Sum- 297. 
 ner, 19 Mass. 129; Richards v. Haz- * 
 
374 ASSIGNMENTS FOR THE BENEFIT OP CREDITORS. 
 
 f erent days.^ The mere fact that two or more conveyances 
 are made at the same time does not necessarily show that 
 they constitute one transaction.^ An individual may not 
 only execute on the same day, but be preparing at the same 
 time a conveyance for the purpose of defrauding his credit- 
 ors 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.^ 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.* Whether the 
 instruments constitute one transaction is a question for the 
 jury.^ A valid instrument, however, can never be im- 
 paired by a subsequent attempt to aid it by an invalid in- 
 strument.^ 
 
 § 340. One Fraudulent Clause vitiates the whole Deed.— 
 
 A fraudulent stipulation makes the whole instrument void, 
 because one fraudulent stipulation is conclusive evidence 
 
 IBerry v. Cutts, 42 Me. 445; Holt Kans. 125, i Pac. 329; Hershisher ». 
 
 V. Bancroft, 30 Ala. 193; Burrows v. Higman & Co., 31 Neb. 531, 28 Am. 
 
 Lehndorf, 8 Iowa, 96; Spaulding v. St. Rep. 527, 42 N. W. 272; Nat'l 
 
 Strang, 36 Barb. 310; s. c. 32 Barb. Bank v. Sprague, 20 N. J. Eq. 28; 
 
 235; s. c. 37 N. Y. 135; s. c. 38 N. Y. Mann v. Whitbeck, 17 Barb. 388; 
 
 9; M'AUister v. Marshall, 6 Binn. Doremus v. Ohio, i Oh. St. 45; 
 
 338; 6 Am. Dec. 458; Cummings v. Watlerman v. Silberberg, 67 Tex. 
 
 McCullough, 5 Ala. 324; Preston v. 100, 2 S. W. 528; Benham v. Ham, 
 
 Spaulding, 120 111. 208, 10 N. E- 5 Wash. 128, 34 Am. St. Rep. 851; 
 
 903; Jones V. Kellogg, 51 Kans. 263, Norton v. Kearney, 10 Wis. 443; 
 
 37 Am. St. Rep. 278; Larrabee v. Carter v. Rewey, 62 Wis. 552, 22 N. 
 
 Franklin Bank, 114 Mo. 592, 35 Am. W. 129; Hoey v. Pierron, 67 Wis. 
 
 St. Rep. 774; Benham v. Ham, 5 262, 30 N. W. 692; Chicago Coffin 
 
 Wash. 128, 34 Am. St. Rep. 851; Co. v. Maxwell, 76 Wis. 282, 35 N. 
 
 Winner v. Hoyt, 66 Wis. 227, 57 Am. W. 733; Menzeshesimer v. Kennedy, 
 
 Rep. 257, 28 N. W. 380. 75 Wis. 416, 44 N. W. 508. 
 
 SFecheimer v. Robertson, 53 Ark. "Mower v. Hanford, 6 Minn. 535. 
 
 loi, 13 S. W. 423; Lampson v. Ar- IWynkoop v. Shardlow, 44 Barb, 
 
 nold 19 la. 479; Farwell v. Howard, 84. 
 
 26 la. 381; Kohn v. Clement, 58 la. CMower v. Hanford, 6 Minn. 535; 
 
 589, 12 N. W. 550; Cadwell's Bank Benham v. Ham, 5 Wash. 128, 34 
 
 V. Crittenden, 66 la. 237, 23 N. W. Am. St. Rep. 851. 
 
 646; Gage V. Parry, 69 la. 605, 29 N. BLansing v. Woodworth, i Sandf. 
 
 W. 822; Tootle V. Coldwell, 30 Ch. 43. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 375 
 
 of the intent to defraud which vitiates the conveyance. 
 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 provisions of the statute, it is void in toto, and no 
 interest passes to the grantee under the part which is 
 good.^ The parties to the assignment can not produce 
 evidence, where the validity of the assignment is assailed, 
 to show that the vicious clause apparent on its face was 
 inserted or retained by inadvertence or mistake, and so to 
 give the instrument an actual character altogether different 
 from its apparent character. Uildoubtedly 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 ratification 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.^ 
 
 § 341. Construed Strictly. — Assignments are often made 
 the means of fraud, and are not regarded in the courts 
 with special favor.^ Courts, however, are under no obliga- 
 tion to be astute to destroy them.* The legal intendments 
 are all in favor of their validity, the same as of other 
 instruments.^ The same fair and reasonable rules of con- 
 
 lAlbert v. Winn, 5 Md. 66; s. c. 7 Edes, 2 Minn. 264; Palmer v. Giles, 
 
 Gill. 446; s. c. 2 Md. Ch. 169; s. c. 2 5 Jones Bq. 75; vide Bradway's Bs- 
 
 Md. Ch. 42; Hyslop v. Clark, 14 tate, i Ashm. 212. 
 
 Johns. 458; Mackie v. Cairns, 5 ^August v. Seeskind, 6 Cold. 166; 
 
 Cow. 547; s. c. 1 Hopk. 373; Good- Hooper z/.Tuckerman, 3 Sandf. 311; 
 
 rich V. Downs, 6 Hill, 438; McClurg Farrow v. Hayes, 51 Md. 498. 
 
 z/. Lecky, 3 Penna. 83, 23 Am. Dec. SReacock v. Durand, 42 111. 230; 
 
 64; Robins v. Embry, i S. & M. Ch. Stewart v. English, 6 Ind. 176-. 
 
 207; Jacot V. Corbett, i Chev. Eq. *Read v. Worthington, 9 Bosw. 
 
 71; Howell V. Edgar, 4111- 4171 Dana 617. 
 
 fl. Lull, 17 Vt. 390; Caldwell v. Will- BTurner v. Jaycox, 40 Barb. 164; 
 
 iams, I Ind. 405; Pierson v. Man- s. c. 40 N. Y. 470; Townsend v. 
 
 ning, 2 Mich. 445; Green I/. Branch Stearns, 32 N. Y. 209; Read «. 
 
 Bank, 33 Ala, 643; Greenleaf v. Worthington, 9 Bosw. 617. 
 
3Y6 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 struction must be applied to them as are adopted in ascer- 
 taining the meaning of other instruments.-' 
 
 § 343. Onus Proband!. — The onus is upon the creditor who 
 assails an assignment to show that it is in plain violation 
 of the law.'' It is a universal rule in the construction of 
 all deeds that fraud is never to be presumed. The rule 
 rests upon such plain principles of justice and propriety, 
 that it needs not the force of argument or the weight of 
 authority to support it. The party that charges fraud is 
 bound to prove it, and that too by legal and competent 
 evidence. The evidence may be found in the deed itself, 
 or it may be established" by other aflBrmative proof. But 
 still, in both cases fraud either actual or constructive must 
 be brought to light with reasonable certainty, and shown 
 to be fairly applicable to the agreement sought to be 
 impeached. Mere conjecture or surmise, however probable 
 or persuasive, is never allowed to establish fraud.^ 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 operative rather than that 
 which will render it illegal and void.* If mere words are 
 relied on as the sole evidence of guilt, it is not enough 
 that they admit of a construction consistent with the 
 imputed wrong, unless they are inconsistent also with a 
 lawful act and an honest purpose.^ 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 instrument is to be taken 
 into view in pronouncing upon its general character.^ 
 
 IWhipple V. Pope, 33 111. 334. 624; Bank v. Talcott, 22 Barb. 550; 
 
 2Townsend v. Stearns, 32 N. Y. Darling v. Rogers, 22 Wend. 483; s. 
 
 2og; Kreese v. Prindle, 8 Oregon, c. 7 Paige, 272; Jewett v. Wood- 
 
 158; Bernheimer v. RindskofE, 116 ward, i Edw. 195; Rapalee v. Stew- 
 
 K. Y. 428, 15 Ani. St. Rep. 414, 22 art, 27 N. Y. 310; Whipple v. Pope, 
 
 N. E. 1074; Jackson v. Harby, 70 33 111. 334; Booth v. McNair, 14 
 
 Tex. 410, 8 S. W. 71; In rif Harris, Mich. 19; Townsend v. Stearns, 32 
 
 81 Cal. 350, 22 Pac. 867. See sec- N. Y. 209; Shackleford v. Planters' 
 
 tious 613-614, post. Bank, 22 Ala. 238. 
 
 Ex parte Conway, 12 Ark. 302. 5Xownsendz/.Stearns,32N.Y.209. 
 
 *Grover v. Wakeman, 11 Wend. BBrigham v. Tillinghast, 15 
 
 187; s. c. 4 Paige, 23, 25 Am. Dec. Barb. 618; s. c. 13 N. Y. 215. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 377 , 
 
 § 343. No Inference that Debtor, Contemplated a Tiola- 
 tion of the Trust. — The trust, like all other trusts com- 
 mitted to human hands, is liable to abuse, but this is na 
 argument against its validity.^ The law will not defeat an 
 instrument by inferring that the debtor contemplated an 
 illegal act on the part of the assignee.^ It presumes that 
 the assignee will apply a general power which can have a 
 lawful operation to a lawful purpose. "When the provision 
 is susceptible of an honest application, it can not be said 
 to have that necessary evil tendency which justifies the 
 inference of a fraudulent intent.^ The question, therefore,, 
 in construing an assignment, is not whether a fraud may 
 be committed by the assignee, but whether the provisions 
 of the instrument are such that, when carried out 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.* 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.^ 
 
 § 344. Powers that may not be Operative.— A power will 
 not be implied iii order to overturn an instrument. The 
 reservation of a supposed existing right will not be con- 
 strued into the grant of a power.^ 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.^ It is 
 likewise immaterial that a power is contingent, and that 
 no occasion has arisen for its operation. The question is, 
 what does it enable the debtor to accomplish, and the law 
 
 "i-Ex parte Conway, I2 Ark. 302; TilUnghast, 15 Barb. 618; s. c. 13 N. 
 
 Ward V. Tingley, 4 Sandf. Ch. 476; Y. 215; Ward v. Tingley, 4 Sandf. 
 
 Hofiman v. Mackall, 5 Ohio St. 124; Ch. 476; Berry v. Hayden, 7 Iowa,, 
 
 64 Am. Dec. 637. 469; Norton v. Kearney, 10 Wis. 
 
 SKellogg V. Slauson, 11 N. Y. 443. 
 302; s. c. 15 Barb. 56. ^Eyre v. Beebe, 28 How. Pr. 333. 
 
 SWatkins v. Wallace, 19 Mich. 57. ^Van Nest v. Yoe, 1 Sandf. Ch. 4. 
 
 iKellogg V. Slauson, 11 N. Y. 7Boardman v. Halliday, 10 Paige 
 
 302; s. c. 15 Barb. 56; Brigham v. 223; Sheldon v. Dodge, 4 Den. 217. 
 
378 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 presumes that lie intends all that the instrument pro- 
 vides.^ 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.^ 
 
 S45. 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.* 
 
 § 346. 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 gov- 
 ernmental independence. Lawful acts done within one 
 state can not be made unlawful by provisions having no 
 authority beyond the territory of the state adopting them. 
 If no 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 violates the laws of that state, and 
 those laws cannot be violated by a disregard of any but 
 their own policy, and the court has no call or jurisdiction 
 tio enforce any external or foreign policy.^ 
 
 § 347. Contemporaneous Circumstances. — It is not sufficient 
 to invalidate an assignment that the debtor at the time of 
 making it is embarrassed,^ or executes it voluntarily,^ or 
 
 IGrover v. Wakeman, ii Wend. 187, 4 Paige 23, 25 Am. Dec. 624. 
 187; s. c. 4 Paige 23, 25 Am. Dec. ^Watkins v. Wallace, 19 Mich. 
 
 ■624; Mead v. Phillips, i Sandf . 57; Frink v. Buss, 45 N. H. 325. See . 
 
 Ch. 83. chapter XIX /os^, for discussion of 
 
 2Nicholson v. Leavitt, 4 Sandf. this subject. 
 252; s. c. 6 N. Y. 510; s. c. 10 N. Y. SLayson v. Rowan, 7 Rob. (La.) i. 
 
 591. SLayson v. Rowan, 7 Rob. (La.) I. 
 
 SGrover «. Wakeman, 11 Wend. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 379 
 
 without tlie request or knowledge of the creditors.^ It is 
 not necessary that the creditors shall be consulted, or that 
 the fact shall appear upon the face of an assignment.^ An 
 assignment may convey all the debtor's property,^ but will 
 not be void if it does not do so.* An assignment by a 
 firm need not convey the separate estates of the partners.^ 
 
 § 348. 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 
 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 credit- 
 ors. 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 
 
 IReinhard v. Bank of Ky., 6 B. 462. When a statute requires that 
 
 Mon. 252. it shall convey all, it is sufficient if 
 
 2Brashear v. West, 7 Pet. 608; the deed by the terms of the law 
 
 Dance v. Seaman, 11 Graft. 778. where it is made conveys all. Frink 
 
 3Layson w. Rowan, 7Rob.(La.)i. z*. Bnss, 45 N. H. 325; Watkins v. 
 
 ^Meeker v. Sanders, 6 Iowa, 61; Wallace, 19 Mich. 57. 
 
 Berry v. Matthews, 13 Md. 537; SBlake v. Faulkner, 18 Ind. 47; 
 
 Price V. De Ford, 18 Md. 489; Dore- Garner v. Frederick, 18 Ind. 507; 
 
 mus V. Lewis, 8 Barb. 124; Wilson Guerin v. Hunt, 6 Minn. 375; s. c. 8 
 
 V. Forsyth, 24 Barb. 105; Eicks v. Minn. 477. Contra, Simmons v. 
 
 Copeland, 53 Tex. 581, 37 Am. Rep. Curtis, 41 Me. 373; Derry Bank v. 
 
 760; vide Smith v. Woodruff, i Hilt. Davis, 44 N. H. 548. 
 
380 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 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.^ 
 
 § 349. Les;ar 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. 
 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.^ 
 
 § 350. 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 creditbrs, 
 is in harmony with both, and exempt from the charge of 
 fraud.^ But where the property at the time of the assign- 
 
 lOgden V. Peters, 2i N. Y. 23; s. Eq. 214, 72 Am. Dec. 388; London 
 
 c. 15 Barb. 560, 78 Am. Dec. 122; z/. Parsley, 7 Jones (N. C.) 313; Burt 
 
 Angell V. Rosenburg, 12 Mich. 241. v. McKinstry, 4 Minn. 204, 77 Am. 
 
 Contra, Van Nest v. Yoe, i Sandf. Dec. 507; Lehmer v.'B.e.rx, iDuvall, 
 
 Ch. 4; Planck v. Schermerhorn, 3 360; Holmberg v. Dean, 21 Kans. 
 
 Barb. Cli. 644; Burt w. McKinstry, 4 73; Gardner v. Commercial Bank, 
 
 Minn. 204, 77 Am. Dec. 507; in re 95 111. 298. 
 
 Randall & Sunderland, 3 B. R. 18; SAngell w. Rosenburg, 12 Mich, 
 
 s. c. 2 L. T. B. 69; s. c. I Deady, 557. 241, Ely v. Cook, 18 Barb. 612; Burt 
 
 2Van Nest v. Yoe, i Sandf. Ch. 4; v. McKinstry, 4 Minn. 204, 77 Am. 
 
 Planck V. Schermerhorn, 3 Barb. Dec. 507. 
 Ch. 644; Knight v. Packer, 12 N. J. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 381 
 
 menl is much, more than suflScient 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 proper- 
 ty 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. 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 himself so 
 as to enable him to realize something by way of a surplus 
 or otherwise, but not where the sole or primary intent is 
 to enable the creditors to realize their demands and prevent 
 loss or injury to any one.^ 
 
 § 351. Burden of Proving Solvency. — The burden of prov- 
 ing the solvency of the debtor rests upon the creditor who 
 assails the assignment.^ A mere nominal difference be- 
 tween the assets and liabilities is not sufficient, especially 
 where the former include debts due to the assignor at their 
 face value without reference to the question whether they 
 are collectible.^ 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 
 bim 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.* 
 
 iRokenbaugh v. Hubbell, 5 Law sarily actual intent— that is meant. 
 
 Rep. (N. S.) 95; s. c. 15 Barb. 563, See sections 25-26-27-28-29, ante. 
 note; Angell v. Rosenburg, 12 Mich. SKellogg v. Slauson, 11 N. Y. 
 
 241. Whether the debtor intended 302, s. c. 15 Barb. 56; Haven v. Rich- 
 
 to avoid a sacrifice so that he may ardson, 5 N. H. 113. 
 save something for himself, or 3I,ivermore v. Northrop, 44 N. 
 
 whether his intent is to save his Y. 107; Guerin z/. Hunt, SMinn. 477; 
 
 creditors from loss, must necessarily s. c. 6 Minn. 375. 
 be inferred from the effect of his *Guerin v. Hunt, 8 Minn. 477; 
 
 act. It is a legal intent— not neces- s. c. 6 Minn. 375. 
 
382 ASSIGNMENTS FOR THE BENEFIT OF OREDITOKS. 
 
 § 352. Debtor's Belief That He Is SolTent.— The debtor's 
 belief that he is solvent is only proper evidence to consider 
 in determining the intent with which the assignment is 
 made.^ It is susceptible of an explanation consistent with 
 honesty of purpose. So far as it relates to the charge of 
 actual fraud much must depend upon the strength of the 
 belief. That might approach very near to a certainty and 
 thus justify the inference,^ but a belief that a surplus of 
 only the most trifling character will remain, while without 
 an assignment the property will be so sacrificed that a large 
 portion of his debts will remain unpaid, furnishes very 
 slight if any evidence of fraud. ^ The debtor may believe 
 himself solvent, and yet have so much doubt upon the sub- 
 ject, from the uncertain valuation of his property, and par- 
 ticularly of that part of it which consists of choses in action^ 
 and from the representations of his friends, that he may 
 honestly suppose that an assignment will prove beneficial to- 
 his creditors.* He may also suppose that his property is 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 circumstances 
 an assignment will be valid.^ 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 gen- 
 eral arrangement with his creditors by way of extension of 
 time of payment, then he is insolvent and can rightfully 
 make an assignment. Even the belief that he is solvent 
 
 iBates V. Ableman, 13 Wis. 644. c. 15 Barb. 560; 78 Am. Dec. 122; 
 
 Contra, Van Nest v. Yoe, 1 Sandf. Angellz/. Rosenburg, 12 Mich. 241;, 
 
 Ch. 4; Baldwin v. Buckland, 11 Mich. EI5' v. Cook, 18 Barb. 612. 
 389; Burt ». McKinstry, 4Minn. 204, BQgden v. Peters, 15 Barb. 560; 
 
 77 Am. Dec. 507. s. c. 21. N. Y. 23, 78 Am. Dec. 122; 
 
 SOgdenz/. Peters, 21 N.Y. 23; s. c. Rokenbaugh v. Hubbell, 5 Law 
 
 15 Barb. 560, 78 Am. Dec. 122; An- Rep. (N. S.) 95; s. c. 15 Barb. 563, 
 
 gell z/. Rosenburg, 12 Mich. 241. note; Bates z/. Ableman, 13 Wis. 644; 
 
 iiBates V. Ableman, 13 Wis. 644. Angell v. Rosenburg, 12 Mich. 241. 
 
 *Ogden V. Peters, 21 N. Y. 23; s. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 383 
 
 when in fact he is not so will not invalidate an assignment 
 if it is made in good faith.^ 
 
 § 353. Selection of Assignee.— The debtor may select the 
 assignee.^ The assignee may be a creditor* or a joint 
 debtor.* He need not be a creditor.^ He may be a 
 relative.® An assignment from one partner to another of 
 the partnership property to secure the payment of the 
 partnership debts would be a palpable attempt on their 
 part to keep the property under their own 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.^ A corporation may 
 select its president.^ The reservation of the power to fill 
 any vacancy that may occur is valid, for it is simply 
 designed to keep the trust alive and in active operation," 
 but a power to remove the assignee gives a control over 
 him, and holds him in obedience to the debtor, and is 
 equivalent to a power on the patt of the debtor to control 
 and direct the administration of the whole trust fund, and 
 therefore render^ the assignment void.^" 
 
 ISavery zi. Spaulding, 8 la. 239, ^Winchester v. Crandall, i Clarke 
 
 74 Am. Dec. 300. Conira Van Nest 371; Baldwin z;. Buckland, 11 Mich. 
 
 V. Yoe, I Sandf. Ch. 4; Burt v. Mc- 389; Schultz v. Hoagland, 85 N. Y. 
 
 Kinstry, 4 Minn. 204, 77 Am. Dec. 464. But the selection of a relative 
 
 507. will be closely scanned. Martin v. 
 
 SWilt ZI. Franklin, i Binn. 502, 2 Kennedy, 83 Ky. 336. 
 
 Am. Dec. 474; Nicholls v. McEwen, 7Sewell v. Russell, 2 Paige, 175.. 
 
 17 N. Y. 22; s. c. 21 Barb. 65; vide Spope v. Brandon, 2 Stew- 401. 
 
 Burd. Z). Smith, 4 Dall. 76. And a corporation may select a 
 
 SEst; parte Conway, 12 Ark. 302; stockholder. Covert v. Rogers, 38 
 
 Wooster v. Stanfield, 11 Iowa. 128; Mich. 363, 31 Am. Rep. 3I9; con- 
 
 Frink V. Buss, 45 N. H. 325; Schultz tra Conlee Lumber Co. v. Ripon 
 
 V. Hoagland, 85 N. Y. 464; Farwell L. and M. Co., 66 Wis. 481, 29 N. W. 
 
 V. Cohen, 138 111. 216, 18 L. R. A. 285. 
 
 281, 28 N. E. 35, 32 N. E. 893. BRobins v. Embry, i S. & M. 
 
 *Wooster v. Stanfield, 11 Iowa, Ch. 20^; Vansands v. Miller, 24 
 
 128. Conn. 180; vide Planck v. Scher- 
 
 SWilt V. Franklin, i Binn. 502, 2 merhorn, 3 Barb. Ch. 644. 
 
 Am. Dec. 474; U. S. Bank v. Huth, WRobins v. Embry, i S. and M. 
 
 4 B. Mon. 423; Repplier v. Buck, 5 Ch. 207. 
 B. Mon. 96. 
 
384 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 § 354. 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.^ 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.^ 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 those of 
 the debtor. Hence if the assignee is so deficient in age, 
 health,^ business capacity* or standing, pecuniary respon- 
 sibility,^ or character for integrity,^ 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 
 iihe performance of the trust, then his selection will 
 furnish an inference more or less strong according to the 
 circumstances that the debtor, in making the selection, is 
 actuated by some other motive than the desire to promote 
 the interests of the creditors. This inference will be 
 strengthened if the assignee is a clerk or near relative,^ or 
 a person likely to be easily influenced by the debtor, as 
 "this will tend to raise the presumption that the assignment 
 
 iReed v. Emery, 8 Paige, 417, 35 nah v. Sedgwick, i Barb. 210; Angell 
 
 Am. Dec. 720. v. Rosenburg, 12 Mich, 241! Jen- 
 
 SCram v. Mitchell, i Sandf. Ch. nings v. Prentice, 39 Mich. 421. 
 
 251. eClark v. Groom, 24 111. 316; 
 
 SCurrie v. Hart, 2 Sandf. Ch. 353; Holmberg v. Dean, 21 Kans. 73. 
 
 Cram v. Mitchell, i Sandf. Ch. 251. 7Ivehmer v. Herr, I Duvall 360; 
 
 4Cram v. Mitchell, i Sandf. Ch. Shnltz v. Hoagland, 85 N. Y. 464; 
 
 251; Guerin v. Hunt, 6 Minn. 375; Bumpas v. Dotson, 7 Hump. 310, 46 
 
 s. C. 8 Minn. 477; Walker v. Adair, Am. Dec. 81. But the relationshil? 
 
 I Bond, 158. of the assignee will not, of itself, 
 
 BReed v. Emery, 8 Paige 417, 35 invalidate the assignment. See 
 
 Am. Dec. 720; Haggarty v. Pittman, section 67, an/e. 
 I Paige, 298, 19 Am. Dec. 434; Con- 
 
ASSIGNMENTS FOR THE BENEFIT OF OEEDITORS. 385 
 
 is intended to be used for the debtor's benefit, or that there 
 is some secret trust in his behalf,^, or that there is an 
 intention to place the property beyond the reach of the 
 creditors.^ 
 
 Non-residence,^ blindness,* want of learning,^ conflict- 
 ing interests,* and insolvency,^ are regarded as disqualifi- 
 cations. In respect to the latter, the principle is not con- 
 fined 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.^ A. subsequent insolvency is not suflScient, 
 for it must be an insolvency existing at the time of the 
 execution of the assignment.^ The insolvency of the 
 assignee must, however, be known to the debtor in order 
 to invalidate the assignment.^" His general reputation in 
 the neighborhood where he resides, and among men whose 
 dealings and interest prompt them to observation and 
 inquiry, may be shown for the purpose of proving such 
 knowledge.-^^ The fact that the assignee is required to 
 give bond for the faithful performance of the trust does 
 
 lAngell V. Rosenburg, 12 Mich. where the trustee is not responsible. 
 
 241. Feers v. I/yon, 21 Conn. 604. 
 
 SReed v. Emery, 8 Paige, 417, 35 3Cram v. Mitchell, i Sandf. Ch. 
 
 Am. Dec. 720. Assignments are 251; Cox z/. Piatt, 32 Barb. 126; s. c. 
 
 frequently made to the confidential 19 How. Pr. 121. 
 
 friends or connections of the as- *Cram v. Mitchell, i Sandf. Ch. 
 
 signer, and the property kept by 251. 
 
 the trustees for their own personal 5Cram v. Mitchell, i Sandf. Ch. 
 
 use, but more generally for the use 251; Guerin v. Hunt, 6 Minn. 375; s. 
 
 of the assignor, and hence it be- c. 8 Minn. 477. 
 
 comes a convenient way in which 6Hays v. Doane, 11 N. J. Eq. 84. 
 
 debtors in failing circumstances are 7Angell v. Rosenburg, 12 Mich, 
 
 enabled to place their property out 241; Holmberg v. Dean, 21 Kans. 
 
 of reach of attaching creditors, and 73. 
 
 at the same time use it for their SAngell v. Rosenburg, 12 Mich, 
 
 own purposes. The diflaculty of 241. 
 
 making even responsible trustees SJackson v. Cornell, i Sandf. Ch. 
 
 account to creditors is so great as 348. 
 
 usually to prevent their attempting MBrowning v. Hart, 6 Barb. 91. 
 
 it, and it is of course never at- "Angell v. Rosenburg, 12 Mich, 
 
 tempted in the more common case 241. 
 
386 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 not relieve the debtor from the obligation of exercising 
 prudence in making the selection.^ 
 
 §355. Disqualifications not ConcIusiTC. — 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 cir- 
 cumstance that may throw light upon the transaction.^ 
 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 pecuniary 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.^ 
 
 § 356. 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 connected 
 with others may be some evidence of actual fraud, but it 
 does not establish a secret agreement under which there is 
 a reservation of any benefit to the grantor.* 
 
 § 357. Change of Possession. — It is not necessary that a 
 change of possession should accompany the transfer.^ The 
 assignee may, for his own accommodation, permit the 
 
 iHolmberg v. Dean, 21 Kans. 73. 307; Dallam v. Pitler, 6 W. &S. 323; 
 
 2Reed 2/. Emery, 8 Paige, 417, 35 Cameron v. Montgomery, 13 S. & 
 
 Am. Dec. 720; Wilson v. Ferguson, R. 128; Vernon v. Morton, 8 Dana, 
 
 10 How. Pr. 175; Pearce v. Beach, 247; Walters v. Whitlock, 9 Fla. 86, 
 
 12 How. Pr. 404; Clark v. Groom, 76 Am. Dec. 607; Strong v. Carrier, 
 
 24 111. 316; Guerin v. Hunt, 6 Minn. 13 Conn. 319; Osborne v. Tuller, 14 
 
 375; s. c. 8 Minn. 477; Angell v. Conn. 529; Burkett v. Thomburg, 
 
 Rosenburg, 12 Mich. 241. 90 Mo. 465, 2 S. W. 838; Klapp v. 
 
 SAngell V. Rosenburg, 12 Mich. Shirk, 13 Penn. 589; Caldwell v. 
 
 241; Pearce v. Beach, 12 How. Pr. Rose, i Smith, 190; Caldwell v. 
 
 404; Clark V. Groom, 24 111. 316. Williams, i Ind. 405; Moore v. 
 
 *Hoopes V. Knell, 31 Md. 550; Smith, 35 Vt. 644; State v. Benoist, 
 
 M'Kinney v. Rhoads, 5 Watts, 343; 37 Mo. 500. Contra, Hower v. 
 
 in re John C. Walker, 18 N. B. R. Geesaman, 17 S. & R. 251; Dewey 
 
 56; viAe Hafner v. Irwin, 1 Ired. v. Adams, 4 Edw. Ch. 21; Hart v. 
 
 490. And see section 52, ante. Gedney, i Law Rep. 69; Ingraham 
 
 BMitchell V. Willock, 2 W. & S. v. Wheeler, 6 Conn. 277. 
 253; Fitler v. Maitland, 5 W. & S. 
 
ASSIGNMENTS FOR THE BENEFIT OF OREDITOES. 
 
 387 
 
 debtor to remain in possession,^ especially if the creditors 
 consent.^ The retention of possession is, however, a badge 
 of fraud.* The assignee may also employ the debtor as 
 his agent when such employment is not a condition of 
 executing the assignment, or the result of a prior posi- 
 tive engagement.* Mere expectation on the part of the 
 debtor that he will be employed is not suflBcient to invali- 
 date an assignment.® Such employment is, however, a 
 badge of fraud.® 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 de- 
 fraud.'' If there is no change in the course of the business 
 
 IVredenburg v. White, i Johns. 
 Cas. 156. 
 
 SScott V. Ray, 35 Mass. 360. 
 
 SVan Nest v. Yoe, i Sandf . Ch. 
 4; Hitchcock V. St. John, i HofE. 
 511; ForBes v. Logan, 4 Bosw. 475; 
 Ball V. l/oomis, 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. McCul- 
 lough, 5 Ala. 324; Byrd v. Bradley, 2 
 B. Mon. 239; Strong v. Carrier, 13 
 Conn. 319; Wright v. Linn, 16 Tex. 
 34; Flanigan v. I/ampman, 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, 78 Am. Dec. 122; Rok- 
 enbaugh v. Hubbell, 5 Law Rep. 
 (N. S.) 95; s. c. 15 Barb. 563. note; 
 Pearson v. Rockhill, 4 B. Mon. 296; 
 Tompkins v. Wheeler, 16 Pet. 106; 
 Casey v. Janes, 37 N. Y. 608; Gor- 
 don V. Cannon, 18 Gratt. 387; 
 Beamish v. Conant, 24 How. Pr. 94; 
 Wilbur V. Fradenburgh, 52 Barb. 
 
 474; Pitler V. Maitland, 3 W. & S. 
 307; Van Hook v. Walton, 28 Tex. 
 59; Blow V. Gage, 44 111. 208; Bald- 
 win V. Buckland, 11 Mich. 389; 
 Deckard v. Case, 5 Watts, 22, 30 
 Am. Dec. 287; Vernon v. Morton, 8 
 Dana, 247; Shattock v. Freeman, 42 
 Mass. 10; Forbes z/. Scannell, 13 Cal. 
 242; Savery v. Spaulding, 8 Iowa, 
 239, 74 Am. Dec. 300; Hubbard v. 
 Winborne, 4 Dev. & Bat. 137; Hall 
 V. Wheeler, 13 Ind. 371; Olney v. 
 Tanner, 10 Fed. Rep. 171. 
 
 60gden V. Peters, 15 Barb. 560; s. 
 c. 21 N. Y. 23, 78 Am. Dec. 122; 
 Nicholson v. Leavitt, 4 Sandf. 252; 
 s. c. 6 N. Y. 510; s. c. 10 N. Y. S91, 
 57 Am. Dec. 499. In Connecticut 
 the debtor can not be employed be- 
 fore the inventory is returned to 
 the court of probate. Peck v. 
 Whiting, 21 Conn. 206. 
 
 BJackson v. Cornell, i Sandf. Ch. 
 348; Wilson V. Ferguson, 10 How. 
 Pr. 175; Connah v. Sedgwick, r 
 Barb. 210; Linn v. Wright, 18 Tex. 
 317, 70 Am. Dec. 282; Guerin v. 
 Hunt, 6 Minn. 375; s. c. 8 Minn. 477; 
 Frank v. Robinson, 96 N. C. 28, i 
 S. E. 781. 
 
 7Mead v. Phillips, i Sandf. Ch. 
 83; Cram v. Mitchell, i Sandf. Ch. 
 251. 
 
388 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 after the execution of the assignment, it is a badge of 
 fraud.^ If there is an agreement at the time of the execu- 
 tion of the assignment that the debtor may lease the prop- 
 erty, and this agreement is carried out, the assignmen,t 
 will be deemed fraudulent.^ 
 
 § 358. Debtor's Adyice. — Every insolvent debtor has at 
 least a moral interest in the advantageous disposition of the 
 property, in order that it may go as far as possible in the 
 payment of his debts and the satisfaction of his creditors, 
 and therefore any suggestion offered by him which may be 
 useful to the assignee and beneficial to the creditors, so far 
 from showing that he intended by the assignment to 
 defraud his creditors, indicates that he was actuated by 
 good motives from the beginning.^ 
 
 § 359. Power of Revocation. — The debtor must part with 
 the property free from any control over or interference with 
 it, and from any contingency on which he may or may not 
 resume it at his pleasure.* A personal trust to the 
 assignee to terminate upon his death or resignation, with 
 full power to resign, renders the assignment fraudulent.* 
 But a conveyance to the assignee and his successors in 
 trust does not give the power to appoint the successors. 
 It merely refers to such persons as may lawfully succeed 
 the assignee in case of resignation, removal or death.^ When 
 a power of revocation is reserved to the debtor, the neces- 
 sary inference is that the assignment is made with the 
 intent to delay, hinder or defraud creditors, for its only efi'ect 
 
 IWilson V. Ferguson, lo How. vide Hafner v. Irwin, i Ired, 490; 
 
 Pr. 175; Connah v. Sedgwick, i Dana v. Bank of U. S., 5 W. & S. 
 
 Barb. 210; Cummings v. McCul- 223; Planters and Mercliants' Bank 
 
 lough, 5 Ala. 324; Adams v. David- v. Clark, 7 Ala. 765; Janney v. 
 
 son, 10 N. Y. 309; Pine v. Rikert, Barnes, 11 Leigh, 100; Sheppards v. 
 
 21 Barb. 469; Moffat v. Ingham, Turpin, 3 Gratt. 373. 
 
 7 Dana, 495; Smith v. Leavitts, 10 Bgrnith z/. Hurst, 10 Hare, 30; s. c. 
 
 Ala. 92. 22 L. J. Ch. (N. S.) 289; s. c. 17 Jur. 
 
 SDobson V. Kerr, 12 N. Y. Supr. 30; s. c. 15 Eng. L. & Eq. 520; Tar- 
 
 643. back V. Marbury, 2 Vern. 510. 
 
 SEyre v. Beebe, 28 How. Pr. 333. e^angdon z*. Thompson, 25 Minn. 
 
 4Whallon v. Scott, 10 Watts, 237; 509. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 389 
 
 is to mask the property,^ even tliough it is only to be exer- 
 cised in case any creditor refuses to assent to the assign- 
 ment.^ A power to make loans on the security of the 
 estate is equivalent to a power of revocation.^ 
 
 § 360. Power to Declare the Uses Subsequently.— 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. If they do not so appear, a conclusive presumption 
 of fraud will arise.* The reason is manifest. If an assign- 
 ment 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 assert those rights in any proceeding either at law or in 
 equity. For if any of such creditors should institute a 
 suit to compel the assignee to account for and to pay over 
 the trust fund as directed by the assignment, the debtor 
 might unquestionably exercise the discretion of preferring 
 other creditors to him, and no prudent man would subject 
 himself to the costs of a fruitless litigation under such an 
 assignment, for his pretended benefit. 
 
 The effect of such an assignment, therefore, is to place 
 the creditors completely 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 conditions 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 enforc-, 
 
 iRiggs V. Murray, 15 Johns. 571; *Grover v. Wakeman, 11 Wend, 
 
 s. c. 2 Johns. Oh. 565; Cannon v. 187; s. c. 4 Paige, 23, 25 Am. Dec. 
 
 Peebles, 4, Ired. 204; s. c. 2 Ired. 624; Harvey v. Mix, 24 Conn. 406; 
 
 449; Benedict v. Renfro, 75 Ala. 121, Burbank v. Hammond, 3 Sumner, 
 
 51 Am. Rep. 429; West v. Snod- 429; Brown v. Guthrie, 39 Hun 29; 
 
 grass, 17 Ala. 549. Hart v. McFarland, 13 Penn. St. 
 
 2Hyslop V. Clark, 14 Johns. 458- 182. 
 
 SSheppards v. Turpin, 3 Gratt. 
 
 373- 
 
390 ASSIGNMENTS FOR THE BENEFIT OF OEEDITORS. 
 
 ing them against the trust fund. It enables the debtor to 
 set his creditors at defiance, and to compel them to bid 
 against each other for his favor. To place them in such a 
 situation is clearly a fraud upon them, and must necessarily 
 hinder and delay them in the collection of their debts.^ 
 As long, therefore, as the debtor is permitted to make an 
 assignment of his property in trust for the payment of his 
 •debts without consulting his creditors on the subject, it is 
 absolutely necessary for the protection of their rights that 
 the equitable interests in the assigned property shall be 
 fixed and determined by the assignment itself.^- The limi- 
 tation of the right to declare the uses to a certain period 
 does not obviate the objection. The law requires that the 
 assignment must itself fix and determine the rights of 
 the creditors in the assigned property. The principle is 
 the same whether the debtor reserves the right to deter- 
 mine the preferences to be given within sixty days, six 
 months, or three years.^ 
 
 § 361. 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.* 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 .^ 
 
 § 362. Power to give Subsequent Preferences can not be 
 given to Another. — As the debtor can not reserve the 
 power to himself of giving a preference, he can not legally 
 
 iBoardman f . Halliday, lo Paige, 5Averill v. Loucks, 6 Barb. 470. 
 
 223; Barnum v. Hempstead, 7 Paige, *Averill v. Loucks, 6 Barb. 470. 
 
 568; Gazzam v. Poyntz, 4 Ala. 374, 37 CAverill v. Loucks, 6 Barb. 470; 
 
 Am. Dec. 745. Mitchell v. Styles, 13 Penn. St. 306; 
 
 SAverill v. Loucks, 6 Barb. 470; vide Hotop v. Neidig, 17 Abb. Pr. 
 
 Mitchell V. Styles, 13 Penn. 306. 332. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 391 
 
 confer it on tlie assignee. The same objection in principle 
 exists in both cases. A discretionary power, therefore, in 
 the assignee to pay off or discharge any of the claims in 
 preference to other debts provided for in the assignment, 
 renders the instrument void.^ "When the right depends 
 upon a contingency, the fact that the creditors who may 
 be postponed will not be injured is immaterial, for no 
 future event can make a conveyance valid which contains 
 illegal provisions.^ 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.^ 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.* 
 
 § 363. Fictitious Debts.— An appropriation of the prop- 
 erty to the payment of debts not owing by the assignor 
 and not contracted on his account,^ or for a larger sum 
 than is due,® to the prejudice of his creditors, is evidence 
 of fraud. This will not, however, make the assignment 
 void unless the assignee participates in the fraud.^ No cred- 
 
 iBarnum v. Hempstead, 7 Paige, *Hall v. Wheeler, 13 Ind. 371. 
 
 568;Boardmanz'.Halliday, 10 Paige, ^Henderson z/. Haddon, 12 Rich. 
 
 223; Strong V. Skinner, 4 Barb. 546; Eq. 393; Bank v. Talcott, 22 Barb. 
 
 Sheldon v. Dodge, 4 Denio, 217; 550; Overton v. Holinshade, 5 
 
 Gazzam v. Poyntz, 4 Ala. 374, 37 Heisk, 283. 
 
 Am. Dec. 745; Smith v. Hurst, 10 BBankz/. Fink, 7Paige87; Ameri- 
 
 Hare, 30; s. , c. 15 Eng. L. &. Eq. can Exchange Bank v. Webb, 15 
 
 520; s. c. 17 Jur. 30, 22 L. J. Ch..(N. How. Pr. 193; s. c. 36 Barb. 291; An- 
 
 S.) 289. gell V. Rosenburg, 12 Mich, 241; 
 
 2Sheldon v. Dodge, 4 Denio, 217. Kavanaugh v. Beckwith, 44 Barb. 
 
 SWard v. Tingley, 4 Sandf. Ch. 192; Hastings v. Baldwin, 17 Mass. 
 
 476, It has been held that a pro- 552; Guerin v. Hunt, 6 Minn. 375; s. 
 
 vision that a certain sum under the c. 8 Minn. 477. 
 
 direction of the debtor shall be 7Macintosh v. Corner, 33 Md. 
 
 paid to other creditors is good. 598; Muse z/. Chaney, Tex. Civ. App., 
 
 Graham v. Lockhart, 8 Ala.g. And 30 S. W. 374; Hempstead v. John- 
 
 that a provision that the debtor ston, 18 Ark. 123, 65 Am. Dec. 458; 
 
 shall be at liberty to direct other pardcastle v. Fisher, 24 Mo. 70; 
 
 creditors to be paid in like manner Harris ». De GrafEenreid, ii Ired. 
 
 as those proyidedfor in the assign- 89; Pinneo v. Hart, 30 Mo. 561, 77 
 
 ment is good. Cannon v. Peebles, Am. Dec. 625; Nightingale v. Har- 
 
 2 Ired. 449; s. c. 4 Ired. 204. ris, 6 R. I. 321; Starr v. Dugan, 22 
 
392 ASSIGNMENTS FOR THE BENEFIT OF OEEDITORS. 
 
 itor is concluded by taking under the assignment from 
 impeaching any of the debts attempted to be secured by it, 
 and showing fraud and collusion in such of them as may 
 stand in his way and the payment of which would operate 
 to his prejudice.^ The impeached claim is extinguished by 
 the fraud, and the share that would otherwise have been 
 appropriated to its payment sinks into the residue, for the 
 benefit of those who are entitled to the residue by the terms 
 of the deed.^ The mere statement that notes are made by 
 a third person does not justify the inference that the 
 assignor is not under obligation to pay them,^ nor is a court 
 authorized to know judicially that the person named in the 
 schedule is the assignor although the names are identical.* 
 Relationship does not authorize the conclusion that a debt 
 is not a fair one in the absence of evidence that is fraudu- 
 lent.^ A direction to the assignee to pay the debts of the 
 assignor, though equivocal, means debts owing by him.® 
 Although an assignment provides for the payment of a fee 
 to the attorney for his services in advising and preparing 
 it, yet that is not sufficient to sustain it if it provides for 
 the payment of a fictitious debt.'' • 
 
 § 364. Provision May be Made for Real Debts Barred by 
 Statute. — A provision may be made for the payment of a 
 note given for an obligation to which the statute of frauds 
 would have been a good defence, for it is optional with the 
 debtor whether he will set up the defence or not,* but no 
 
 Md. 58; Woodward v. Marshall, 39 iMacintosh v. Corner, 33 Md. 
 
 Mass. 468; Craft v. Bloom, 59 Miss. 598; Starr v. Dugan, 22 Md. 58; 
 
 69, 42 Am. Rep. 351. Contra, Pied- Hardcastle v. Fisher, 24 Mo. 70; 
 
 ler V. Day, 2 Sandf. 594; Planck v. Reiff v. Eshleman, 52 Md. 582. 
 
 Shermerhorn, 3Barb. Ch. 644; Webb ^Hardcastle v. Fisher, 24 Mo. 70, 
 
 V. Daggett, 2 Barb. 9; Irwin v. Keen, SBank v. Talcott, 22 Barb. 550. 
 
 3 Whart. 347; American Exchange *Blow v. Gage, 44 111. 208. 
 
 Bank v. Webb, 15 How. Pr. 193; s. SLayson v. Rowan, 7 Rob. (La.) i, 
 
 c. 26 Barb. 591; Mead v. Phillips, i epine v. Rikert, 21 Barb. 469. 
 
 Bandf. Ch. 83; Jacobs z/. Remsen, 36 7Craft 1). Bloom, 59 Miss. 69; 42 
 
 N. Y. 668; Livermore v. Northrop, Am. Rep. 351. 
 
 44 N. Y. 107; Terry v. Butler, 43 SLivermore V. Northrup, 44 N. 
 
 Barb. 395; Lehmert'.Heri', iDuvall, Y. 107. "The debtor may include 
 
 360; Stone V. Marshall, 7 Jones (N. in his list of preferential creditors 
 
 Ci) 300. persons whose claims are, by reason 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 393 
 
 provision can. be made for a claim whicli has been dis- 
 charged by a release from the creditor. The^moral obli- 
 gation is not suflScient in such a case to support the de- 
 mand as against other creditors.^ 
 
 § 365. Debt Due to Debtor's Wife May be Included in 
 
 Assignment.— "Whenever the debtor has received or bor- 
 rowed 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 considered and 
 treated as his creditor therefor, he is allowed to pay such 
 debt from his property, in the same manner and upon the 
 same principles upon which he is allowed to pay any other 
 debt to any other creditor. The temptation which may 
 exist in such cases for the perpetration of frauds for the 
 benefit of the debtor's family makes it proper to scrutinize 
 very closely and carefully all transactions between the 
 husband and wife, to see that claims in favor of the wife 
 are not trumped up on the eve of insolvency. The pre- 
 existence of the debt must be very clearly proved, and its 
 honesty most fully established, before it is allowed. But 
 if honest, the debt of the wife is none the less sacred be- 
 cause it is due from her husband.^ A provision may also 
 be made for the payment of a mortgage for the purpose of 
 restoring her inchoate right of dower in the mortgaged 
 premises discharged of the mortgage. As between the 
 creditors themselves the mortgaged property is the primary 
 fund for paying the mortgage debt, but as against all 
 
 of some mere technical rule or rule son, 9 N. Y. 73, 59 Am. Dec. 516. 
 
 of policy, not enforceable at law, See also Chapin v. Thompson 891 
 
 provided they are still just claims. N. Y. 270. 
 
 Just as one may forego the benefit, iNightingale v. Harris, 6 R. I. 321. 
 
 when sued, of a defence of the ^McCartney v. Welch, 44 Barb, 
 
 statute of frauds (by some authori- 271; s. c. 51 N. Y. 626; Planck w. 
 
 ties) or of the statute of limitations, Schermerhorn, 3 Barb. Ch. 644; 
 
 or of usury, so may one recognize Jaycox v. Caldwell, 51 N. Y. 395; s. 
 
 the validity of the just claims of c. 37 How. Pr. 240; Criswell's Ap- 
 
 creditors, which are thus barred." peal, 100 Penn. St. 488; Lyon v. 
 
 Bigelow on Fraud, 2nd Ed., Vol. Zimmer, 30 Fed. 401. And' see sec- 
 
 il., p. 323, citing Murray v. Jud- tion 286, ante, and notes. 
 
394 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 creditors, except the mortgage creditor, the equity of the 
 wife is entitled to as much consideration as their demands.^ 
 
 § 366. 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.^ 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 trustent in the instrument.^ 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 suflScient funds in his hands to meet such 
 liability, and distribute the residue, and after the liability 
 is disposed of distribute the balance.* A direction to the 
 assignee to indemnify a surety is a direction to pay the 
 obligation as it becomes due, for in no other way can the 
 guarantor be fully protected and saved harmless from the 
 payment thereof.^ 
 
 § 367. 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 as- 
 signed estate, the property upon which it is a lien will be 
 
 IDimon v. Delmonico, 35 Barb. SGriffin v. Marquardt, 21 N. Y. 
 
 554. 121; s. c. 17 N. y. 28. 
 
 ^Citizen's Bank v. Kendrick, 92 *Read v. Worthington, 9 Bosw. 
 
 ■Tenn. 437, 36 Am. St. Rep. 96; 6i7;Loescliigkz'. Jacobson, 26H0W. 
 
 Keteltas v. Wilson, 36 Barb. 298; s. Pr. 526; s. c. 2 Robt. 645. 
 
 c. 23 How. Pr. 69; Copeland v. BLoeschigk v. Jacobson, 26 How. 
 
 Weld, 8 Me. 411; Duval v. Raisin, 7 Pr. 526; s. c. 2 Robt. 645. 
 
 Mo. 449; Vaughan v. Evans, i Hill 6A secured creditor is entitled to 
 
 Ch. 414; Bank v. Talcott, 22 Barb. share equally with the others in the 
 
 550; Halsey v. Whitney, 4 Mason dividends of the assignment, not- 
 
 206; Stevens v. Bell, 6 Mass. 339; withstanding his security. Matter 
 
 Bank v. Cox, 6 Me. 395; Cunning- of Bates, 118 111. 524, 59 Am. Rep. 
 
 ham V. Freeborn, 11 Wend. 241; s. 383, 9 N. E. 257; Findlay z*. Hosmer, 
 
 c. I Edw. 256; s. c. 3 Paige, 537. 2 Conn. 356; Moses v. Ranlett, 2N. 
 
ASSiaNMBNTS FOR THE BENEFIT OF CREDITORS. 395 
 
 left without hindrance to be resorted to by the other cred- 
 itors for the payment of their debts. If the debt is im- 
 perfectly secured, it is not objectionable to provide for it 
 in the assignment. If it is amply secured, a provision for 
 its payment will not render the assignment void.^ But 
 such a provision should be considered as made subject to 
 the equity, as between the creditors, to have the mortgage 
 debt paid out of the mortgaged property.^ 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.' Provision may also be made 
 for the payment of an attaching 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 attachment is questioned.* It is 
 proper for the assignment to set forth the securities held 
 by the secured creditor, but the omission of any reference 
 to them is not inconsistent with entire honesty and good 
 faith.' A debt fully secured by mortgage may be excluded.® 
 
 § 368.Yarious Debts. — Provision may be made for the pay- 
 ment of an unsettled account,^ or of notes which have been 
 purchased at a discount,^ or of a bequest to the debtor, as 
 
 H. 488; Van Mater v. Ely, 13 N. J. Union Bank v. Nat. Mechanic's 
 
 Eq. 271; Morris v. Olwine, 22 Penn. Bank, 80 Md. 371, 27 L. R. A. 476, 
 
 St. 441; Miller's Appeal, 35 Penn. 30 Atl. 913; Besley v. Lawrence, n 
 
 St. 481; Graifi's Appeal, 79 Pa. St. Paige 587; Petition of Knowles, 13 
 
 146; I/Ogan V. Anderson, 18 B. Mon. R. I. 90. 
 
 114; Schunck's Appeal, 2 Barr 304; iStrong v. Skinner, 4 Barb. 546; 
 
 Duncan z/. Fish, I Aik. 231; Putnam Hastings z/. Palmer, i Clarke, 52; 
 
 V. Russell, 17 Vt. 54, 42 Am. Dec. Kruse v. Prindle, 8 Oregon, 158. 
 
 478; Walker v. Barker, 26 Vt. 710; 2Dimon v Delmonico, 35 Barb. 
 
 Jervis V. Smith, Buff. Super. Ct. 554. 
 
 Rep. 189; Mason v. Bogg, 2 My. & 3Ball v. Bowe, 49 Wis. 495. 
 
 Cr. 443-446; Paddock v. Bates, 19 ^Orant v. Chapman, 38 N. Y. 293. 
 
 Bradw.- 470. BStern v. Fisher, 32 Barb. 198. 
 
 But in Iowa, Maryland, New 6Cross v. Bryant, 3 111. 36. 
 
 York and Rhode Island the secured 7Reinhart v. Bank of Ky., 6 B. 
 
 creditor can only share in the divi- Mon. 252. 
 
 dendsofthe assignment after his spowersz/. Graydon, loBosw. 630, 
 security has been exhausted— or de- s. c. 25 How. Pr. 512; Low v. Gray- 
 ducted from the amount of his debt. don, 50 Barb. 414. 
 Wurtz V. Hart, 13 la. 515; Nat. 
 
396 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 executor, to employ in business and pay the profit to others, 
 even though it is so employed by him.^ A direction to 
 the assignee to pay debts which are or may become due, 
 means debts existing at the date of the assignment and to 
 become due afterwards, and includes debts already due. 
 The phrase "may become due," when applied to actual 
 debts then owing to creditors, means debts which shall 
 become payable thereafter; and when applied to persons 
 under a contingent liability for the debtor, means sums of 
 money which shall thereafter become payable to them by 
 reason of such contingent liability.^ 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.'' A provision can not be 
 made for the debts which the separate partners may have 
 against the firm before the firm creditors are paid.* A 
 note given to a former partner upon his withdrawal from 
 the firm may be provided for.^ 
 
 § 369, 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 
 
 iTilford's Case, 8 Watts, 531. another partnership in which the 
 2Read V. Worthington, 5 Bosw. partners of the insolvent firm were 
 617; Brainard v. Dunning, 30 N. Y. interested, was fraudulent. The 
 211; Benedict v. Huntington, 32 N. decision is interesting because it rec- 
 Y. 219; Butt V. Peck, i Daly, 83; ognizes the partnership as being as 
 Van Hook v. Walton, 28 Tex. 59. stated in the text in some degree a 
 Spanshawe v. I/ane, i6 Abb. Pr. corporate body, and holds the trans- 
 71; vide Kayser v. Heavenrich, 5 action fraudulent because the part- 
 Kansas 324. The general tendency ners are trustees for the creditors, 
 of the law at this day is to complete in short the court applies the "trust 
 its recognition of a partnership as a fund doctrine" to partnership af- 
 body of itself, with its own means fairs. 
 
 appropriated to its own debts. Par- 4Goddard v. Hapgood, 25 Vt. 
 
 sons on Partnership, 449. In Bon- 351, 60 Am. Dec. 272. 
 wit V. Heyman, 61 N. W. 716, (Jan. SMattison v. Demarest, 4 Robt. 
 
 17. 1895) the Supreme Court of 161; Blow v. Gage, 44 111. 208; 
 
 Nebraska held that a preference, Smith v, Howard, 20 How. Pr. 121. 
 by a partnership, of a debt due 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 397 
 
 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.^ 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 individual 
 partners.^ 
 
 When the separate property assigned by each part- 
 ner exceeds the amount of his separate debts, a direction 
 that separate debts shall be paid out of the partnership - 
 property will not vitiate the assignment.^ Evidence may 
 also be given to show that there are no individual debts, 
 but the burden of proof rests on the partifes claiming 
 under the instrument.* Debts contracted in the name of 
 one of the partners may be shown to be in reality part- 
 
 IWilson V. Robertson, 21 N. Y. 6 Mich. 329, 74 Am. Dec. 690; Las- 
 
 587; 19 How. Pr. 350; Cox V. Piatt, sell v. Tucker, 5 Sneed, i; Gordon 
 
 32 Barb. 126, s. c. 19 How. Pr. 121; w. Cannon, 18 Gratt. 387; Hill v. 
 
 Lester z/. Abbott, 28 How. Pr. 488, Draper, Ark., 24S. W. 1075; Harney 
 
 s. c. 3 Robt. 691; Knauth v. Bassett, v. First Nat'l Bank, N. J. Ch., 29 
 
 34 Barb. 31; Henderson v. Haddon, Atl. 221; Frank v. Morehead, N. J. 
 
 12 Rich. Eq. 393; Keith v. Fink, 47 Ch., 31 Atl. 1016; Kurner v. O'Neil, 
 
 111. 272; Ruhl V. Phillips, 2 Daly, 39 "W. Va. 515, 20 S. E. 589. See 
 
 45; Heye v. Bolles, 33 How. Pr. 266, Nat'l Union Bank v. Nat'l Me- 
 
 s. c. 2 Daly, 231; French v. I/Ovejoy, chanics' Bank, 80 Md. 371, 27 I,. R. 
 
 12 N. H. 458; Kirby z/. Shoonmaker, A. 476, 30 Atl. 913; Howe v. Kerr, 
 
 3 Barb. Ch. 46, 49 Am. Dec. 160; 69 Miss. 311, 13 So. 730. 
 Hurlbert v. Dean, 2 Abb. Ap. 428, ^Wilson v. Robertson, 21 N. Y. 
 
 s. c. 2 Keyes, 97. In some cases it 587, 19 How. Pr. 350. 
 is held that the appropriation is svan Nest v. Yoe, i Sandf. Ch. 
 
 Toid but the assignment valid. 4; Knauth v. Bassett, 34 Barb. 31; 
 
 Nicholson v. Leavitt, 4 Sandf. 252, HoUister v. l/oud, 2 Mich. 309. 
 s. c. 6 N. Y. 510, s. c. 10 N. Y. 591, ^Hurlbert v. Dean, 2 Keys, 97; s. 
 
 57 Am. Dec. 499; McCullough v. c. 2 Abb. Ap. 428. Contra, Lester 
 
 .Somerville, 8 Leigh, 415; Read v. v. Abbott, 28 How. Pr. 488; s. c 3 
 
 Baylies, 35 Mass. 497; Kemp zy.Carn- Robt. 691. 
 ley, 3 Duer, i; Nye v. Van Husan, 
 
398 ASSIGNMENTS FOE THE BENEFIT OF CREDITORS. 
 
 nership debts.^ Partnership property may be applied to 
 the payment of debts which are not partnership debts, but 
 for which all the partners are bound.^ A direction that the 
 property shall be distributed among the creditors accord- 
 ing to their respective equities is good, for it contemplates 
 a distribution according to law.^ If a partnership is dis- 
 solved in good faith and one partner takes the property 
 ' and assumes the debts of the firm, he may subsequently 
 assign the property for . the payment of individual cred- 
 itors,* or of the creditors of any new firm of which he may 
 become a member.^ 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.^ 
 
 § 370. Separate Property to Firm Debts. — The rule that 
 the individual property must be first applied to the pay- 
 ment of the separate debts does not limit or restrict the 
 
 iCox V. Piatt, 32 Barb. 126; s. c. 
 19 How. Pr. 121; Read v. Baylies, 35 
 Mass. 497; Marks v. Hill, 15 Gratt. 
 400; Bancroft v. Snodgrass, i Cold. 
 430. 
 
 Smith V. Howard, 20 How. Pr. 
 121 ; Saunders v. Reilly, 105 N. Y. 
 12-18, 59 Am. Rep. 472, 12N. E. 170; 
 Bernheimer v. Rindskopf, 116 N. Y. 
 428, 15 Am. St. Rep. 414, 22 ISf. E. 
 1074; Citizens' Bank v. Williams, 
 128 N. Y. 77, 26 Am. St. Rep. 454, 
 28 N. E. 33- 
 
 "When there is a good considera- 
 tion to support a contract of the 
 firm, outside of the scope of the 
 firm business, I take it, that a firm 
 creditor, having no lien upon the 
 firm property, has no legal ground 
 for complaint if firm property is 
 appropriated to pay such obliga- 
 tion, even though the firm was in- 
 solvent at the time it entered into 
 the contract. The contract being 
 legal and there being no actual 
 
 fraud, it may be enforced against 
 the firm) and hence it is not fraudu- 
 lent, in law, if firm property is ap- 
 plied to pa}- the debt." Bern- 
 heimer v. Rindskopf, supra. 
 
 SHeckman v. Messinger, 49 Penn. 
 465; Maennel v. Murdock, 13 Md. 
 264; Coakley v. Weil, 47 Md. 277. 
 
 IRobb V. Stevens, i Clarke, 192; 
 Yearsley's Estate, i A. L. Reg. 636; 
 Marsh v. Bennett, 5 McLean, 117; 
 Price V. DeFord, 18 Md. 489; vide 
 Heye v. BoUes, 2 Daly, 231; s. c. 33 
 How. Pr. 266. 
 
 sSmith V. Howard, 20 How. Pr. 
 121. 
 
 flMorrison v. Atwell, 9 Bosw. 503. 
 And an assignment by a firm need 
 not include individual property. 
 Drucker v. Wellhouse, 82 Ga. 129, 
 2 L. R. A. 328, 8 S. E. 40; Auley v. 
 Osterman, 65 Wis. 118, 25 N. W. 
 657, 26 N. W. 568; Ex parte Hop- 
 kins, 104 Ind. 157, 2 N. E 587- 
 
ASSIGNMENTS FOR THE BENEFIT OF OREDITORS. 399 
 
 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. Bach 
 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.^ 
 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, 
 
 § 371. Disposition of Surplus by Partners. — When an 
 assignment devotes the individual and partnership prop- 
 erty 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 
 his property is in anywise bound, before his own just debts 
 are satisfied.^ Evidence may, however, be given to show 
 that there will be no surplus after the payment of the 
 
 lO'Neil V. Salmon, 25 How. Pr. v. Baglify, 33 Mass. 570; French 
 
 246; Kirby z/. Schoonmaker, 3 Barb. v. Lovejoy, 12 N. H. 458; vide 
 
 Ch. 46, 49 Am. Dec. 160; Van Ros- Jackson v, Cornell, i Sandf. Ch. 
 
 sum V. Walker, 11 Barb. 237; Byre v. 348. 
 
 Beebe, 28 How. Pr. 333; Pox v. SSmith v. Howard, 20 How. Pr. 
 
 Heath, 16 Abb. Pr. 163; s. c. 21 How. 121; O'Neil v. Salmon, 25 How. Pr. 
 
 Pr. 384; Gadsden v. Carson, 9 Rich. 246; Kitchen v. Reinsky, 42 Mo. 
 
 Eq. 252, 70 Am. Dec. 207; Newman 427. 
 
400 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 partnership debts.^ 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.^ 
 
 § 372. Equality. — Whenever a man becomes unable to pay 
 his debts, the law regards his property as of right belong- 
 ing to his creditors.^ Morally he is then a trustee for all 
 his creditors, and each is entitled to a ratable share of his 
 property and estate. As his property in equity and justice 
 belongs to his creditors, an assignment in favor of all his 
 creditors equally is in conformity with the general policy 
 of the law.'* 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.^ 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 
 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." 
 
 ITurner v. Jaycox, 40 IST. Y. 470; s. BMalcom v. Hall, 9 Gill. 177, 52 
 
 c. 40 Barb. 164. Contra, Smith v. Am. Dec. 688. 
 
 Howard, 20 How. Pr. 121. estate v Bank of Maryland, 6 G. 
 
 SRyre v. BSebe, 28 How. Pr. 333. & J. 205, 26 Am. Dec. 561; Wilt v. 
 
 SGere v. Murray, 6 Minn. 305. Franklin, i Binn. 502, 2 Am. Dec. 
 
 ^Albert v. Winn, 7 Gill. 446; s. c. 474; Meux v. Howell, 4 East, i; In- 
 
 5 Md. 66, s. c. 2 Md. Ch. 169, s. c. 2 gliss v. Grant, 5 T. R. 530; Vreden- 
 
 Md. Ch. 42. bergh v White, 1 Johns. Cas. 156; 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 401 
 
 § 373. Preferences.— By virtue of tlae absolute dominion 
 wMch 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 jeal- 
 ousy, and are not required by any reasons of expediency or 
 justice to enlarge it or give it dangerous facilities.^ 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 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 stipula- 
 tions in favor of preferred creditors.* He may assign the 
 
 Pickstock V. Ivyster, 3 M. & S. 371; 
 King V. Watson, 3 Price, 6; NicoU 
 V. Mumford, 4 Johns. Ch. 522; Ver- 
 non V. Morton, 8 Dana, 247; Robins 
 V. Embry, i S. & M. Cli. 207; Adams 
 V. Blodgett, 2 Woodb. & Min. 233; 
 Fisher v. Dinwiddle, 12 B. Mon. 208; 
 Evans V. Jones, 11 Jur. (N. S.) 784, 
 s. c. 34 Iy. J. Exch. 25; Halsey v. 
 Whitney, 4 Mason, 206; Hall v. 
 Dennison, 17 Vt. 310. 
 
 ITurnipseed v. Schaefer, 76 Ga. 
 109, 2 Am. St. Rep. 17; McMillan v. 
 Knapp, 76 Ga. 171, 2 Am. St. 
 Rep. 29. 
 
 ^Murray v. Riggs, 15 Johns. 571, 
 s. c. 2 Johns. Ch. 565; Cunningham 
 V. Freeborn, 11 Wend 241, s. c. i 
 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. Mar- 
 shall, 7 Jones (N. C.) 300; Blow v. 
 Gage, 44 111. 208. 
 
 SEstwick zj. Caillaud, 5 T. R. 420; 
 s. c. 2 Anst. 381; Cunningham v. 
 Freeborn, 11 Wend. 241, s. i;. i 
 Edw. 256, s. c. 3 Paige, 537; Ball v. 
 
 Bowe, 49 Wis. 495. See sections , 
 165-167, ante, and notes. 
 
 IBeatty v. Davis, 9 Gill, 2u; Mc- 
 Colgan V. Hopkins, 17 Md. 395; 
 Tompkins v. Wheeler, 16 Pet. 106; 
 Marbury v. Brooks, 7 Wheat. 556; s. 
 c. II Wheat. 78; Wilkes v. Ferris, 5 
 Johns. 335, 4 Am. Dec. 364; Wynne 
 V. Glidwell, 17 Ind. 446; I/ayson v. 
 Rowan, 7 Rob. (I/a.) i; 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 N. 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, 25 Am. 
 Dec. 437; Stevenson v. Agry, 7 Ohio, 
 2d part, 247; Pearson v. Rockhill, 4 
 B. Mon. 296; Moffatt v. M'Dowell, 1 
 McCord Ch. 434; M'CuUough v. 
 Sommerville, 8 Leigh, 415; How v. 
 Camp, Walk. Ch. 427; Kingz/. Trice, 
 3 Ired. Eq. 568; estr parte Conway, 
 
402 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 whole of his property for the benefit of a single creditor in 
 exclusion of all others, or he may distribute it in equal pro- 
 portions, either among a part or the whole of them.^ A sur- 
 viving partner^ or a corporation' may give a preference. 
 
 12 Ark. 302; U. S. Bank v. Huth, 4 
 B. Mon. 423; Merrick z;. Henderson, 
 Walk. 485; Cross v. Brj-ant, 3 111. 
 36; Smith V. Campbell, Rice, 352; 
 Petrikin v. Davis, Morris, 296; Hol- 
 brook z/. Baker, 4 Fla. 87; Hollister 
 V. Loud, 2 Mich. 309; Kneeland v. 
 Cowles, 4 Chand. 46; Cooper v. Mc- 
 Clun, 16 111. 435; U. S. V. Bank of 
 U. 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. 
 Preferences in assignments are 
 prohibited in the following states: 
 Arizona, California, (where they 
 are void as to non-assenting credit- 
 ors); Colorado (except certain spec- 
 ified claims for wages of labor, 
 which are preferred by law) ; Con- 
 necticut; Delaware; Florida; Ida- 
 ho; Illinois (except claims for the 
 wages of labor)/ Iowa; Kansas; 
 Kentucky; Louisiana; Maine; Massa- 
 chusetts; Michigan; Minnesota (ex- 
 cept debts due to the United States, 
 to the state, and for labor, which 
 are preferred by statute) ; Missouri; 
 Nebraska, (except debts due for 
 labor); New Hampshire; New 
 Jersey (the New Jersey statute 
 has no application to an assign- 
 ment by a fraudulent grantee as a 
 compromise with the creditors who 
 have assailed the conveyance; 
 Emerick v. Harlan, 12 N. J. Eq. 
 229); New Mexico; New York 
 (where preferences to the extent of 
 one third the assigned estate are 
 permitted); North Dakota; Ohio, 
 (except taxes due — and the wages 
 of labor, which are subjects of 
 statutory preferment); Oklahoma; 
 
 Oregon; Pennsylvania (except for 
 labor claims); Rhode Island; South 
 Carolina; South Dakota; Tennes- 
 see; Texas; Vermont; West Vir- 
 ginia; Wisconsin (except claims 
 for labor); Wyoming {e^ce^t claims 
 for labor). In Virginia, preferences 
 in corporate assignments are for- 
 bidden. 
 
 The general effect of the State 
 statutes is not to invalidate the as- 
 signment, but to make it operate 
 for the benefit of all. Law v. Mills, 
 
 18 Penn. 185; Shapleighz^. Baird, 26 
 Mo. 322; Floyd V. Smith, 9 Ohio St. 
 546; Dickson v. Rawson, 5 Ohio St. 
 219; Shouse V. Utterback, 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. Chaf- 
 fees 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, i Iowa, 460. 
 
 Preferences by limited partner- 
 ships are forbidden in Arkansas, 
 Delaware, Idaho, Iowa, Kentucky, 
 Maryland, Minnesota, Nebraska, 
 Nevada, New Jersey, New Mexico, 
 New York, North Dakota, Rhode 
 Island, Pennsylvania, South Caro- 
 lina, South Dakota, Tennessee, 
 Texas, Virginia, West Virginia, 
 Wisconsin and Wyoming. 
 
 iNew Albany R. R. Co. v. Huff, 
 
 19 Ind. 444. 
 
 ^Hutchinson v. Smith, 7 Paige, 
 26. Contra, Barcroft 0. Snodgrass, 
 I Cold. 430. See section 329, ante. 
 
 SCatlin V. Eagle Bank, 6 Conn. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 403 
 
 § 374. Incidental Effect to Defeat Others.— The mere fact 
 that the preference defeats all other creditors does not 
 affect the validity of an assignment.^ 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.^ 
 There may even be an intent to defeat an execution.* 
 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 suflBcient to pay their debts, necessarily tends to 
 delay and defeat all other creditors, but however strong 
 the intention is thereby to defeat or delay the latter, still 
 the conveyance is not void on that account. 
 
 The law allows a debtor to give a preference to credit- 
 ors by a bona fide conveyance. It allows any creditor 
 also by an execution to acquire a preference in invitum. 
 But which shall prevail depends entirely upon the priority 
 of the act by which the preference is legally acquired. 
 Neither is, of itself, a fraud upon the other.* The suing 
 creditors strive in a legal way to make their debts to the 
 exclusion of others, and have no right to complain if they 
 are surpassed and 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.* The debtor may 
 
 233; Dana v. Bank of U. S., 5 W. & SWilson v. Eifler, 6 Cold. 31. 
 
 S. 223; Burr v. M'Donald, 3 Gratt. SHoUister v. Loud, 2 Mich. 309. 
 
 215; Arthur v. Commercial Bank, 17 See sections 23, 170, 188, anie. 
 
 Miss. 394, 48 Am. Dec. 719; Town z/. 4Halsey v. Whitney, 4 Mason, 
 
 Bank, 2 Doug. (Mich.) 530; High- 206; Bank v. Cox, 6 Me. 395; Tomp- 
 
 tower V. Mustian, 8 Geo. 506; U. S. kins v. Wheeler, 16 Pet. 106; Jaques 
 
 V. Bank of U. S., 8 Rob. (La.) 262; v. Greenwood,. 12 Abb. Pr. 232; 
 
 Dundas v. Bowler, 3 McLean, 397. Wynne v. Glidwell, 17 Ind. 446; 
 
 See section 328, anie, notes. New Albany R. R. Co. v. Huff, 19 
 
 'Marbury v. Brooks, 7 Wheat. Ind. 444; Chandler v. Caldwell, 17 
 
 566, s. c. II Wheat. 78; Byrd v. Brad- Ind. 256; Bailey v. Mills, 27 Tex. 434. 
 
 ley, 2 B. Mon. 239; Lawrence v. SHefner v. Metcalf, i Head, 577. 
 Neff, 41 Cal. 566. 
 
404 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 also select the time of making an assignment, so as to make 
 the preference effectual.^ 
 
 § 375. 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.^ Neither law nor equity 
 inquires into the reasons or motives for the preference. 
 The motive which prompted it, provided an honest debt 
 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.'* He may even be influenced by 
 an expectation to receive employment from the preferred 
 creditors.* If the debtor's purpose is to prevent a sacri- 
 fice of his property and a race of diligence among "bis 
 creditors by appropriating it to his preferred creditors, this 
 will not be fraudulent, because it is just what he has a 
 right to do.' 
 
 § 376. Consequence of Right to Prefer. — The right to pre- 
 fer necessarily involves the right to postpone.^ A claim 
 may be postponed unless certain collaterals are accounted 
 for.' The assignment may provide that no interest shall 
 be paid upon any debt until the principal of all the debts 
 
 ITompkins v. Wheeler, i6 Pet. SSpaulding v. Strang, 37 N. Y. 
 
 106. 13s, s. c. 38 N. Y. 9, s. c. 32 Barb. 
 
 2Spaulding v. Strang, 37 N. Y. 235, s. c. 36 Barb. 310; Hollister v. 
 
 135; s. c. 38 N. Y. 9; s. c. 32 Barb. Loud, ? Mich. 309; ex parte Con- 
 
 235; s. c. 36 Barb. 310; Wilson v. way, 12 Ark. 302. 
 BrittOn, 6 Abb. Pr. 34, 97; s. c. 20 ^Crawford v. Austin, 34 Md. 
 
 Barb. 562; Place v. Miller, 6 Abb. 49. 
 
 Pr. (N. S.) 178; vide Gasherie v. BRjndskoff v. Guggenheim, 3 
 
 Apple, 14 Abb. Pr. 64; Renard v. Cold. 284. 
 
 Graydon, 39 Barb. 548; s. c. 36 Barb. ^ Ex parte Conway, 12 Ark. 302. 
 
 310; s. c. 32 Barb. 235; s. c. 25 How. ^Bellows v. Partridge, 19 Barb. 
 
 Pr. 178; Dickerson v. Benham, 20 176. 
 How. Pr. 343; Anthony v. Stype, 26 
 N. Y. Supr. 265. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 405 
 
 is paid.^ No principle of public policy or morality is 
 infringed by an agreement among tlie 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.^ 
 
 § 377. Reservations to Debtor.— The fundamental principle 
 of law and justice is that all the property of an insolvent 
 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 the property and yet transfers it to 
 another to be held for his use, he can, in the general 
 course of human actions, have but one motive for the 
 measure, and that motive must be to defeat or elude the 
 claims of others.^ This is the- reason why all stipulations 
 for any benefit in favor of the debtor render an assignment 
 null and void. The debtor can not retain the use and 
 enjoyment of the property and turn creditors over for their 
 debts to the rents and profits,* nor transfer his property 
 and substitute his own bond in its place.^ An express 
 appropriation of a portion of the property to his use,^ or 
 
 llngraham v. Grigg, 21 Miss. 22. i Hopk. 373; Johnston v. Harvy, 2 
 
 SHalton z". Jordan, 29 Ala. 266. P. & W. 82; 21 Am. Dec. 426; 
 
 3Mackie v. Cairns, 5 Cow. 547, s. Richards v. Hazard, i Stew. & Port. 
 
 c. I Hopk. 373. 139; Coate v. Williams, 9. Eng. Li 
 
 4Green z/. Trieber, 3 Md. ii;Galt & Eq. 481, s. c. 7 Exch. 205. Contra, 
 
 V. Dibrell, 10 Yerg. 146; Price v. Murray v. Riggs, 15 Johns. 571, s. c. 
 
 Ritger, 44 Md. 521. 2 Johns. Ch. 565; Austin v. Bell, 20 
 
 5Green v. Trieber, 3 Md. 11. Johns. 442; Estwick v. Caillaud, 5 
 
 6Green v. Trieber, 3 Md. 11; T. R. 420, s. c. 2 Anst. 381. 
 
 Mackie v. Cairns, S Cow. 547; s. C. 
 
406 ASSIGNMENTS FOR THE BENEFIT OP CREDITORS. 
 
 for his support,^ or any provision for his family,^ renders 
 the assignment void. The mere fact that the debts of the 
 creditors who assent to it amount to more than the value 
 of the property is immaterial.^ 
 
 The debtor cannot postpone creditors to a future day, 
 and have the funds in the meantime applied to the prose- 
 cution of his business.* 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.^ .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,^ or for the payment of the expenses of the 
 debtor in obtaining the benefit of the bankrupt law.^ A 
 preference can not be given for the purpose of securing to 
 
 IGreen v. Trieber. 3 Md. 11; Reg. 536; Kansas City Packing Co. 
 
 Johnston v. Harvy, 2 P. &. W. 82, v. Hoover, i D. C. App. 268; 21 
 
 21 Am. Dec. 426. Wash. Law Rep. 710. 
 
 SM'AUister v. Marshall, 6 Binn. SArthur v. Commercial Bank, 17 
 
 338, 6 Am. Dec. 458; M'Clurg v. Miss. 394, 48 Am. Dec. 719; Com- 
 
 Lecky, 3 Penna. 83, 23 Am. Dec. 64; mercial Bank, 6 Rob. (La.) 246. 
 
 Bradway's Estate, 1 Ashm. 212; Co»/ra, Robins z/. Embry, i S. & M. 
 
 Green z/„ Branch Bank, 33 Ala. 643. Ch. 207; Balto. & Ohio R. E. Co. v. 
 
 Contra, Young v. Booe, 11 Ired. Glenn, 28 Md. 287, 92 Am. Dec. 688. 
 
 347. "Green v. Trieber, 3 Md. 11. 
 
 SM'Allister v. Marshall, 6 Binn. ^Austin v. Bell, 20 Johns. 442, 11 
 
 338, 6 Am. Dec. 458. Am. Dec. 297. 
 
 *Bodley v. Goodrich, 7 How. 276; SSewall v. Russell, 2 Paige 175. 
 Cleveland v. Railroad Co., 7 A. L. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS., 407 
 
 the debtor the future use of a dwelling house without 
 paying rent or being liable therefor.^ A provision for 
 future advances and future liabilities,^ or a loan not 
 received at the time of executing the assignment,^ renders 
 the transfer fraudulent. A stipulation that the debtor shall 
 be permitted to transact business for a certain, period 
 without any proceedings being taken against him, either 
 at law or in equity,* or contemplating the resumption of 
 business,^ 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.® 
 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.^ A stipulation may be inserted requiring 
 a note given in an exchange of accommodation notes to 
 be surrendered as a conditon of a preference.^ 
 
 § 378. Bight to Possession. — An express reservation of the 
 right to remain in possession until the property is sold,* or 
 for such a time as the assignee in his discretion may deem 
 proper,^" will not vitiate the transfer. A stipulation in the 
 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 indiiferent 
 
 lElias V. Farley, 40 N. Y. 398, s. SQliver Lee & Co.'s Bank v. Tal- 
 
 c. 5 Abb. Pr. (N. S.) 39, s. c. 2 Abb. cott, 19 N. Y. 146; Bank v. Talcott, 
 
 Ap. II. 22 Barb. 550. 
 
 SBarnum v. Hempstead, 7 Paige, SGlobe Iron Co. v. Thatcher, 87 
 
 568; Lansing v. Wordsworth, i Ala. 458, 6 So. 366; Baxter v. 
 
 Sandf. Ch. 43; Currie v. Hart, 2 Wheeler, 26 Mass. 21; Dewey v. 
 
 Sandf. Ch. 353; Peacock v. Tomp- Littlejohn, 2 Ired. Eq. 495! Moore 
 
 kins, Meigs, 317. v. Collins, 3 Dev. 126; Lanier v. 
 
 sSheldon v. Dodge, 4 Denio, 217. Driver, 24 Ala. 149; Estes v. Gunter, 
 
 *Berry v. Riley, 2 Barb. 307; 121 U. S. 183, 122 U. S. 450. 7 S. Ct. 
 
 Sheppards v. Turpin, 3 Gratt. 373. 1275. Contra Knight v. Parker, 12 
 
 SFairchild v. Hunt, 14 N. J. Eq. N. J. Eq. 214, 72 Am. Dec. 388. 
 
 367. lopianters' and Merchants' Bank v. 
 
 SJudson V. Gardner, 4 Leg. Obs. Clarke, 7 Ala. 765; Abercrombie v. 
 
 (N. Y.) 424. Bradford, 16 Ala. 560; Shackelford 
 
 7Fairchild v. Hunt, 14 N. J. Eq. v. Planters' Bank, 22 Ala. 238. 
 367- 
 
408 ASSIGNMENTS FOR THE BENEFIT OF ORBDITOKS. 
 
 whether it is for the convenience of the assignee and the 
 benefit of the estate or for the benefit of the debtor.^ No 
 express stipulation can be inserted requiring the employ- 
 ment of the debtor.^ 
 
 § 379. What Maybe Seized. — When an assignment is void 
 on account of a reservation in favor of the debtor, creditors 
 may seize the property reserved* or the property assigned.* 
 
 § 380. Concealment. — The concealment of a portion of the 
 assets conveyed by the terms of the assignment does not 
 necessarily invalidate the assignment,^ but is merely a cir- 
 cumstance tending to prove fraud.^ The same principle 
 applies when the debtor absconds with a portion of the 
 estate,^ or abstracts a part of the property after the execu- 
 tion of the assignment.® These acts are a fraud on the 
 
 IHardy v. Skinner, 9 Ired. 191; 
 Hardy v. Simpson, 13 Ired. 132. Six 
 months — Kevau v. Branch, i Gratt. 
 274; janney v. Barnes, 11 I^eigh, 100; 
 Coate V. Williams, 9 Eng. L,. &Eq. 
 481, s. c. 7 Exch. 205 — and eight 
 months — Hempstead v. Johnson, 18 
 Ark. ■123; 65 Am. Dec. 458 — have 
 been deemed to be not unreason- 
 able. 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 con- 
 tracted during that time paid out of 
 the trust fund— Balto. & Ohio R. R. 
 Co. V. Glenn, 28 Md. 287, 92 Am. 
 Dec. 688 — is good. 
 
 SMcClurg V. I/ecky, 3 Penna. 83, 
 23 Am. Dec. 64; Contra, Young v. 
 Booe, II Ired. 347; Janney v. Barnes, 
 II I,eigh, 100; Marks v. Hill, 15 
 Gratt. 400; Rindskoff v. Guggen- 
 heim, 3 Cold. 284; Holt V. Kelly, 13 
 Ir. L. R. 33- 
 
 3M'Allister v. Marshall, 6 Binn. 
 338, 6 Am. Dec. 458; M'Clurg v. 
 Lecky, 3 Pen. and W. 83, 23 Am. 
 Dec. 64. 
 
 ^M'Clurg V. Lecky, 3 Pen. and 
 W. 83, 23 Am. Dec. 64. 
 
 BReinhard v. Bank of Ky., 6 B. 
 Mon. 252; Wilson v. Berg, 88 Penn. 
 167. 
 
 SGuerin v. Hunt, 6 Minn. 375, s. 
 c. 8 Minn. 477; Smith v. Mitchell, 
 
 12 Mich. 180; Blackman z/.Wheaton, 
 
 13 Minn. 326; Lehmer v. Herr, i 
 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. 
 
 7Wilson V. Forsyth, 24 Barb. 105; 
 American Exchange Bankt/. Webb, 
 15 How. Pr. 193, s. c. 36 Barb. 291; 
 Gates V. I/abeaume, 19 Mo. 17; 
 Miller V. Halsey, 4 Abb. Pr. (N. S.) 
 28; Thomas v. Tallmadge, 16 Ohio 
 St. 434; Spencer v. Jackson, 2 R. I. 
 35; vide Waverly Nat'l Bank v. 
 Halsey, 57 Barb. 249; Foley z;. Bitter, 
 34 Md. 646; Stewart v. Spencer, i 
 Curt. 157; Nightingale v. Harris, 6 
 R. I. 321; Main v. Lynch, 54 Md. 
 658. 
 
 SCraft V. Bloom, 59 Miss. 69, 42 
 Am. Rep. 351. 
 
ASSIGNMENTS FOR THE BENEFIT OP CBEDITORS. 40^ 
 
 assignment rather than a fraud in it.^ But if the debtor, 
 through the agency of the assignee, retains more than he 
 can hold under the exemption laws of the state, the assign- 
 ment is fraudulent.^ 
 
 § 381. 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.^ 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.* What- 
 ever is exempt from execution may be reserved to the 
 debtor.^ But if the reservation of what may be exempt by 
 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.^ 
 
 § 382. No 4pplication 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 
 
 IThomas v. Tallmadge, i6 Ohio *Price v. DeFord, i8 Md. 489. 
 
 St. 434. SDow V. Platner, 16 N. Y. 562; 
 
 ^Carlton v. Baldwin, 22 Tex. 724; Mulford ». Shirk, 26 Penn. 473; Hol- 
 Stewart v. Spencer, i Curt. 157; lister v. l/oud, 2 Mich. 309; Bald- 
 Clark V. Robbins, 8 Kans. 574; win v. Peet, 22 Tex. 708, 75 Am. 
 Nightingale z». Harris, 6 R.I. 321; Dec. 806; Garner z/. 'Frederick, iS 
 Farrin v. Crawford, 2 N. B. R. 602; Ind. 507; Smith «. Mitchell, 12 Mich. 
 i« r« Chamberlain ^^ a/., 3 N. B. R. 180; Heckman v. Messinger, 49- 
 710. Penn. 465; Brooks v. Nichols, 17 
 
 SBank v. Cox, 6 Me. 395; Carpen- Mich. 38; Farquharson ji. McDonald), 
 ter V. Underwood, 19 N. Y. 520; 2 Heisk. 404; Sugg v. Tillman, 2 
 Pearce v. Jackson, 2 R. I. 35; Swan. 208; McCord v. Moore, 5 
 Knight V. Waterman, 36 Penn. 258; Tenn. 734; Overton v. Hollinshade, 
 Bates V. Ableman, 13 Wis. 644; 5 Heisk. 283; Richardson «. Mar- 
 Baldwin V. Peet, 22 Tex. 708, 75 queze, 59 Miss. 80, 42 Am. Rep. 553^ 
 Am. Dec. 806; Ingraham v. Grigg, Muhr v. Piuover, 67 Md. 480, 10 
 21 Miss. 22; Dodd v. Hills, 21 Kans. Atl. 289; Cribben v. Ellis, 69 Wis. 
 707; in r<? John C. Walker, 18 N. B. 337, 34 N. W. 154; Severson v. Por- 
 R. 56; vide Foster v. Libby, 24 Me. ter, 73 Wis. 70, 40 N. W. 577. Hilde- 
 448; Moss Z". Humphrey, 4 Greene brandte/. Bowman, 100 Penn. St. 580. 
 (Iowa), 443. "Clark v. Robbins, 8 Kans. 574. 
 
410 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 paid to Ms creditors. Such a stipulation simply relates to 
 the manner in which the property shall be paid for by the 
 purchaser.^ 
 
 § 383. Resei'Tation of Residuary Interests. — There is a dis- 
 tinction between an express trust for the debtor and a 
 benefit which is merely incidental to a trust created for 
 another object.^ A residuary interest necessarily arises in 
 every case where property is assigned ia trust to pay 
 debts, for the surplus by operation of law results in trust 
 for the debtor, but unless the assignment is merely color- 
 able and made for the sake of the resulting trust it is not 
 void.^ An express reservation of the surplus to the debtor 
 is a mere expression of that which the law would provide 
 without such a declaration, and does not therefore vitiate 
 the transfer.* When no surplus is expected, an omission to 
 
 iBeach v. Bestor, 47 111. 521. 
 
 ^Curtis V. Iveavitt, 15 N. Y. 9; s. 
 c. 17 Barb. 309; Van Buskirk v. 
 Warren, 39 N. Y. iig; s. c. 34 Barb. 
 457; 13 Abb. Pr. 145; 4 Abb; Ap. 
 
 457- 
 
 3Wilkes V. Ferris, 5 Johns. 335, 
 4 Am. Dec. 364. 
 
 ^Hempstead v. Jolinson, 18 Ark. 
 123, 65 Am. Dec. 458; Rowland v. 
 Coleman, 45 Geo. 204; Ely v. Hair, 
 16 B. Mon. 230; Brown v. Dyon, 17 
 Ala. 659; Dance v. Seaman, 11 Gratt. 
 778; Graham v. Ivockhart, 8 Ala. 
 ■9; Hindman v. Dill, 11 Ala. 689; 
 Dana v. Bank of U. S., 5 W. & 
 S. 223; Johnson v. McAllister, 30 
 Mo. 327; Miller v. Stetson, 32 Ala. 
 166; Moore v. Collins, 3 Dev. 126; 
 Andrews v. Ivudlow, 22 Mass. 28; 
 Vaughan v. Evans, i Hill Ch. 414; 
 Eloyd 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, i Paige, 305, 19 
 Am. Dec. 436; Moody z". Carroll, 71 
 
 Tex. 143, 10 Am. St. Rep. 734, 8. S. 
 W. 510; Trumbo v. Hamel, 29 S. C. 
 520, 8 S. E. 83; Farwell v. Maxwell, 
 34 Fed. 727. Contra, .Barney v. 
 Griffin, 2 N. Y. 365; Goodrich v. 
 Downs, 6 Hill, 438; Lansing v. 
 Woodworth, i Sandf. Ch. 43; 
 Strong V. Skinner, 4 Barb. 546; 
 Collomb V. Caldwell, 16 N. Y. 484; 
 Truitt V. Caldwell, 3 Minn. 364, 
 74 Am. Dec. 764; Banning v. 
 Sibley, 3 Minn. 389; Green 
 V. Trieber, 3 Md. 11; Theras- 
 son V. Hickok, 37 Vt. 454; Maberry 
 V. Shisler, i 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 Vt. 390 — or by 
 proof that the omission was the 
 effect of haste or inadvertence. 
 Hooper z;. 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 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 411 
 
 provide for the disMbution of any balance that may re- 
 main does not affect the transfer.^ There may be a pro- 
 vision that the surplus shall be paid to the debtor or cred- 
 itors in the discretion of the assignee.^ 
 
 § 384. 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 
 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.^ Inadequacy of consideration is, however, 
 merely indicative of fraud, and not conclusive evidence.* 
 
 § 385. 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- 
 
 tie efEect is to lock up tlie prop- Skipwith v. Cunningham, 8 Leigh, 
 
 erty until the creditors provided 271, 31 Am. Dec. 642; Janney v. 
 
 for in the assignment are paid — Barnes, 11 Leigh, 100; Marks v. 
 
 Dana v. Ivull, 27 Vt. 390 — because Hill, 15 Gratt. 400; Ely v. Hair, 16 
 
 the other creditors can not sell the B. Mon. 230; Graham v. Lockhart, 
 
 interest of the debtor subject to 8 Ala. 9. 
 
 the assignment, as they could if it iDoremus v. Lewis, 8 Barb. 124; 
 
 were a mortgage. Leitch v. Hoi- Bishop v. Halsey, 3 Abb. Pr. 400; 
 
 lister, 4 N. Y. 211; Dunham v. Spies f. Joel, 1 Duer, 669. 
 
 Whitehead, 21 N. Y. 131; McClel- SKneeland v. Cowles, 4 Chand. 
 
 land V. Remsen, 36 Barb. 622, s. c. 46. 
 
 14 Abb. Pr. 331; s. c. 23 How. Pr. SMoore v. Collins, 3 Dev. 126; 
 
 175; Estwick V. Caillaud, 2 Anst. Beck v. Burdett, i Paige, 305, 19 
 
 381; s. c. 5 T. R. 420. The opposite Am. Dec. 436; Hastings v. Baldwin, 
 
 doctrine is held in other cases. 17 Mass. 552. 
 
 Murray z*. Riggs, 15 Johns. 571, s. ^George z). Kimball, 41 Mass. 234. 
 
 c. 2 Johns. Ch. 565; Austin v. Bell, See section 57, ante. 
 
 20 Johns. 442, II Am. Dec. 297; 
 
412 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 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.-^ 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.^ The result will be the same if the assign- 
 ment contains no direction to pay the residue of the pro- 
 ceeds to th^ debtors after paying the firin debts, for the 
 law itself creates a resulting trust in their favor as to such 
 surplus.^ Real estate held by the partners jointly may be 
 shown to be partnership property.* 
 
 When one partner, with the consent of his co-partner, 
 assigns his individual estate and the 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.^ 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.'' 
 
 ■ § 386. 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 
 
 IBogert V. Haight, g Paige, 297; individual creditors. CoUoinb v. 
 
 Butt V. Peck, I Daly, 83; Hubler v. Caldwell, 16 N. Y. 484. But it has 
 
 Waterman, 33 Penn. 414; vide God- also been held that proof must be 
 
 dard v. Hapgood, 25 Vt. 351, 60 Am. given that there are separate debts. 
 
 Dec. 272. Bogert v. Haight, g Paige, 297. 
 
 SCollomb V. Caldwell, 16 N. Y. BMandel v. Peay, 20 Ark. ^25. 
 
 484; Collumb V. Read, 24 N. Y. 505. ^Bogert v. Haight, 9 Paige, 297. 
 
 SBogert V. Haight, g Paige, 297. It has been held that an assign- 
 
 ^CoUumb V. Read, 24 N. Y. 505. ment of the individual estate is 
 
 When the assignment includes void if the surplus is reserved to 
 
 both individual and . partnership the debtor without providing for 
 
 property it has been held that the the partnership debts. Goddard v. 
 
 surplus can not be reserved to the Hapgood, 25 Vt. 351, 60 Am. Dec. 
 
 debtors without providing for the 272. 
 
ASSIGNMEI^TS FOR THE BENEFIT OF CREDITORS. 413 
 
 Tesulting trust.^ "When the object of the trust is accom- 
 plished, what remains will belong to the debtor by opera- 
 tion of law.^ 
 
 § 387. Time for Closing Trust.— The avowed object of an 
 assignmient is to place the property convey e'd by it beyond 
 the legal pursuit of creditors, and by the instrument itself 
 to provide another mode for the payment of their debts,^ 
 and it must not therefore contain any provisions to defeat 
 or hinder this purpose beyond such reasonable delay as 
 may be incidental and necessary to the proper execution of 
 the trust.* Delay is necessarily incident to every assign- 
 ment, 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.^ 
 
 § 388. Time must be Eeasonable. — 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.^ 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 
 
 ISangston v. Gaither, 3 Md. 40; Hook v. Walton, 28 Tex. 59; Par- 
 
 Beatty v. Davis, 9 Gill. 211; Win- quharson v. McDonald, 2 Heisk. 
 
 tringham v. Lafoy, 7 Cow. 735; 404; Gibson v. Walker, 11 Ired. 327. 
 Moody V. Carroll, 71 Texl 143, 10 spope v. Wilson, 7 Ala. 690. 
 
 Am. St. Rep. 734, 8 S. W. 510. 4Green v. Trieber, 3. Md. 11. 
 
 2Van Rossum v. Walker, 11 Barb. ^Carlton v. Baldwin, 22 Tex. 724. 
 -237; Ely V. Cook, 18 Barb. 612; Rob^: 8Wilt v, Franklin, 1 Binn. 502, 
 bins z/. Embry, i S. & M. Ch. 207; 2 Am. Dec. 474; Hower v. Geesa- 
 Cross z/. Bryant, 3 111. 36; Hall v. man, 17 S. & R. 251; Stevens w. 
 Dennison, 17 Vt. 310; Hollister v. Bell, 6 Mass. 339; Hollister v. I,oud, 
 Loud, 2 Mich. 309; Hoffman v. 2 Mich. 309; Bellamy v. Bellamy, 6 
 Mackall, sOhioSt. 124, 64 Am. Dec. Fla. 62; New Albany R. R. Co. v. 
 /6iT, Finlay v. Dickerson, 29 111. 9; Hufi, 19 Ind. 444; Overton v. Hoi- 
 Matter v. Potter, 54 Penn. 465; Van inshade, 5 Heisk. 283. 
 
414 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 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- 
 one which is to 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.^ 
 
 A postponement of the time of distribution for eight 
 months^ and twelve months^ has been held good. A 
 postponement for more than a year has been considered 
 bad." A requirement that the trust shall be closed within 
 two years has been held valid.^ The vesting of a power 
 in a majority of the creditors to postpone the distribution 
 indefinitely vitiates the assignment.^ As the assignment 
 may provide that a distribution shall only be made among 
 those creditors who assent to it,^ the time allowed for 
 expressing their consent should be reasonable.^ What is a 
 
 iRichardson v. Stapleton, 60 Sanderson v. Streeter, 14 Kans. 
 
 Miss. 97; compare Wickham v. 458; Higby v. Ayres, 14 Kans. 331. 
 Green, 61 Miss. 463. SConkliug v. Carson, 11 111. 503; 
 
 SRobins V. Embry, i S. & M. Finlay v. Dickerson, 29 111. 9. 
 Ch. 207. 90ne year has been considered 
 
 ^Hempstead v. Johnston, 18 Ark. reasonable. Vaughan v. Evans, i 
 
 123, 65 Am. Dec. 458. Hill Ch. 414. Contra, Repplier v. 
 
 ^Robins w. Embry, i S. & M. Orrich, 7 Ohio, 2d part, 246; Knight 
 
 Ch. 207. V. Packer, 12 N. J. Eq. 214. Twenty 
 
 ^Sheerer v. Lautzerheizer, 6 months is allowed in Tennessee. 
 
 Watts, 543. Mayer v- PuUiam, 2 Head. 346; 
 
 6Dana v. Bank of U. S., 5 W. & Farquharson v. McDonald, 2 Heisk. 
 
 S. 223. 404. Thirty days has been deemed 
 
 ''Sheppards v. Turpin, 3 Gratt. unreasonable. Hardin v. Osborn, 
 
 373; Shearer v. Loftin, 26 Ala. 703; 60 111. 93. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 415 
 
 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.^ 
 
 § 389. Delay la 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 con- 
 vert the property into money. Some delay of creditors is 
 the necessary consequence of all assignments, but that alone 
 does not vitiate them. The delay must be shown to be the 
 intent and object of the assignment, not an incidental con- 
 sequence of it. The object and intent to devote the 
 property to the payment of creditors being meritorious, 
 the unavoidable delay in bringing the property to sale has 
 never been considered as bringing such assignments within 
 the statute.'* It is the duty of the assignee to proceed with- 
 out delay and in the proper manner to convert the property 
 into money and pay the debts. He is not, however, 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 interests of the creditors 
 require it. All that is required of the assignee is that he 
 act in good faith, exercise a fair discretion, and do in the 
 premises according to his instructions what a man of ordi- 
 nary prudence and care would do in regard to his own 
 business.^ The assignment may by express terms confer 
 upon him all that the law gives by implication.* 
 
 § 390. Illegal Power Vitiates. — 'No illegal power, how- 
 ever, should be conferred, for this will render the whole 
 
 iHardin v. Osborn, 6o 111. 93. SHofEman v. Mackall, 5 Ohio St. 
 
 ZSackettz/. Mansfield, 26 111. 21; 124, 64 Am. Dec. 637. 
 Wooster v. Stanfield, 11 Iowa, 128; ^McClung v. Bergfield, 4 Minn. 
 
 McClung V. Bergfield, 4 Minn. 148. 148. 
 
416 ASSIGNMENTS FOR THE BENEFIT OF CEEDITORS. 
 
 assignment void.^ The debtor being tlie absolute owner of 
 tbe property, and in no manner obliged to assign, may an- 
 nex STicb conditions and qualifications to the transfer as lie 
 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, be- 
 cause 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 conditions 
 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- discretion 
 vested in the assignee, however, will always be construed 
 "to mean a reasonable and legal discretion, and will be under 
 the control of a court of equity.^ 
 
 § 391. 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 
 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 appropria- 
 tion upon a trustee. This the law permits, and such delay 
 as may be necessary for that purpose.* But any delay 
 beyond what may be necessary for the proper execution of 
 the trust involves an illegal hindrance, and thus renders 
 the instrument fraudulent and void. 
 
 ISee I/andeman v. Wilson, 29 W. N. Y. 9, s. c. 6 Abb. Pr. 357, s. c. 3 
 
 Va. 702, 2 S. E. 203. Duer, 166; Jessup v. Hulse, 21 N. 
 
 SGoddard v. Hapgood, 25 Vt. 351, Y. 168, s. c. 29 Barb. 539; Billings v. 
 
 60 Am. Dec. 272; Benedict v. Hunt- Billings, 2 Cal. 107, 56 Am. Dec. 319. 
 ington, 32 N. Y. 219; vide Nichol- SNicholsonz/. I,eavitt,6N. Y. 510, 
 
 son V. Leavitt, 6 N. Y. 510, s. c. 10 10 N. Y. 591, s. c. 4 Sandf. 252, 57 
 
 N. Y. 591, s. c. 4 Sandf. 252, 57 Am. Am. Dec. 499; Barney v. Griffin, 
 
 Dec. 499; Dunham v. Waterman, 17 2 N. Y. 365. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 417 
 
 § 392. 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.-^ 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.^ Forty days,^ three months,* four months,^ nine 
 months,® and eleven months,^ have been considered good. 
 One year,* eighteen months,^ two years,^" three years,^^ and 
 five years,^^ have been held fatal. The fact that the assign- 
 ment 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.^^ 
 
 iHart V. Crane, 7 Paige, 37; Hart 7 Young v. Booe, 11 Ired. 347. 
 
 V. Gediley, i Law Rep. 69. SSheerer v. Ivautzerheizer, 6 
 
 "A general sound discretion, to Watts, 543. Contra, Graham v. 
 
 be exercised in the interest of the Lockhart, 8 Ala. 9; Farquharson v. 
 
 trust, and in the exercise of which McDonald, 2 Heisk. 404; RindskofE 
 
 the discretion of a court of equity v. Guggenheim, 3 Cold. 284. 
 
 may be invoked is a very difierent Sfiancroft v. Snodgtass, i Cold, 
 
 thing from an express power to re- 430. 
 
 tain property to await a specified lOQuarles v. Kerr, 14 Gratt. 48; 
 
 event, which can only occur at Hardin v. Osborn, 60 111. 93; vide 
 
 some indefinite future period." Dance z/. Seaman, 11 Gratt. 778. 
 
 Maughlin v. Tyler, 47 Md. 545. nAdlum v. Yard, i Rawle, 163. 
 
 -2Hafner v. Irwin, i Ired. 490; isgtorm v. Davenport, i Sandf. 
 
 Smith V. Morse, 2 Cal. 524. Ch. 135. 
 
 SHafner v. Irwin, i Ired. 490. ISStorm v. Davenport, I Sandf. 
 
 ^Christopher v. Covington, 2 B. Ch. 135. It has been held that the 
 
 Mon. 357. " deed may direct that the property 
 
 SCannon v. Peebles, 2 Ired. 449; shall not be sold until judgment 
 
 s. c. 4 Ired. 204. is obtained against the sureties. 
 
 SGilmer v. Earnhardt, i Jones Planters and Merchants' Bank v. 
 
 (N. C.) 559. Clarke, 7 Ala. 765. 
 
418 ASSIGNMENTS FOE THE BENEFIT OF CREDITOKS. 
 
 § 393. 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 .^ The 
 assignee cannot 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 
 than these interests may be supposed imperatively to 
 require." 
 
 § 394. 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.* A dis- 
 cretion of this character is one that results ex necessitate 
 from the duty which he has to perform. The assignee 
 
 'Griffin V. Marquardt, 2i N. Y. Minn. 148; Finley v. Dickerson, 29 
 
 121, 17 N. Y. 28. 111. 9; McCallie v. Walton, 37 Geo. 
 
 SJessup V. Hulse, 21 N. Y. 168, s. 611, 95 Am. Dec. 369; Farquharson 
 
 c. 29 Barb. 539. v. Eichelberger, 15 Md. 63; Maen- 
 
 3See Kintner v. Jones, 122 Ind. nel v. Murdock, 13 Md. 164; Mussey 
 
 148, 23 N. E. 701. V. Noyes, 26 Vt. 462; Inloes v. 
 
 *Jessup V. Hulse, 21 N. Y. 168, American Exchange Bank, 11 Md. 
 s. c. 29 Barb. 539; Bellows v. Par- 173, 59 Am. Dec. 190; Benedict v. 
 tridge, 19 Barb. 176; Meeker v. San- Huntington, 32 N. Y. 219; Clapp v. 
 ders, 6 Iowa 6i; Ogden v. Peters, 21 Utley, 16 How. Pr. 384; Sackett v. 
 N. Y. 23, s. c. IS Barb. 560, 78 Am. Mansfield, 26 111. 21; vide Wood- 
 Dec. 122; Townsend v. Stearns, 32 burn v. Mosher, 9 Barb. 255; Mur- 
 N. Y. 20g; McClung v. Bergfield, 4 phy v. Bell, 8 How. Pr. 468. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 419 
 
 may also be allowed to select the place of sale.^ A pro- 
 vision whicli requires the assignee to regard the interests 
 of the debtor rather than those of the creditors vitiates the 
 transfer, but a direction to sell at such time as may be 
 best for the interest of the parties concerned is legal, for 
 he should consult the interests of the parties in the order 
 and according to their lawful rights.^ The price may be 
 left to his discretion.^ A direction to him to sell at fair 
 and reasonable prices is valid, for whatever price he can 
 obtain upon a sale fairly made is in legal contemplation a 
 fair and reasonable price.* A direction to him to sell as 
 soon as it can be done without material sacrifice would be 
 proper for the same reason.^ 
 
 § 395. Mode of Selling. — The power may be given to him to 
 sell at either public or private sale.^ A direction to sell at 
 public auction is a badge of fraud, because it indicates an 
 intention to sacrifice the property.^ A provision that the 
 assignee may carry on the business for such time as in his 
 judgment it may be beneficial to do so,^ 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 
 
 iCannon v. Peebles, 2 Ired. 449, "not inconsistent with fair dealing 
 
 s. c. 4 Ired. 204. and honesty, and instead of violat- 
 
 SBooth V. McNair, 14 Mich. 19. ing the policy of the law or the 
 
 SAshurst V. Martin, 9 Port. 566; rights of creditors it is in harmony 
 
 Norton v. Kearney, 10 Wis. 443. with both and exempt from the 
 
 *Ely V. Hair, 16 B. Mon. 230. charge of fraud. Kyle v. Harveys, 
 
 SWooster v. Stanfield, 11 Iowa 25 W. Va. 716, 52 Am. Rep. 235. 
 
 128. Contra, Schoolfield v. Johnson, 11 
 
 SHalstead v. Gordon, 34 Barb. Fed. Rep. 297. 
 
 422; Sackettz/. MansEeld, 26 111. 21; 7vVork v. Ellis, 50 Barb. 512. 
 
 HoHman v. Mackall, 5 Ohio St. The Arkansas statute provides that 
 
 124, 64 Am. Dec. 637; Nye v. Van the sale shall be by public auction. 
 
 Husan, 6 Mich. 329, 74 Am. Dec. See Raleigh v. Griffith, 37 Ark. 150. 
 
 690; Marks v. Hill, 15 Gratt. 400. Sjones v. Syer, 52 Md. 21 r, 36 
 
 An effort on the part of the debtor Am. Rep. 366; Gardner v. Com- 
 
 to protect his property from sacri- mercial Bank, 95 111. 298; Spencer v. 
 
 fice, by the insertion of a provision Slater, L. R. 4 Q. B. Div. 13; Hill v. 
 
 that the assignee should sell the Agnew, 12 Fed. Rep. 230; First Nat'l 
 
 goods at private sale, was held Bank v. Hughes, 10 Mo. Ap. 7. 
 
420 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 carrying on tlie 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.^ For the same reason a provision that the 
 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.^ The assignee may, however, be clothed with 
 the power to replenish the stock so as to facilitate general 
 sales.* 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.* 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.* It is always a badge of fraud," and 
 the circumstances which will justify it must appear upon 
 
 lAmerican Exchange Bank v. In- Wend.' 241, s. c. 3 Paige, 537, s. c. i 
 
 loes, 7 Md. 380, s. c. II Md. 173, 59 Edw. 256; Foster v. Saco Manuf. 
 
 Am. Dec. 190; Truitt z/. 'Caldwell, 3 Co., 29 Mass. 451; Woodward v. 
 
 Minn. 364, 74 Am. Dec. 764; Gerez*. Marshall, 39 Mass. 468; Kendall v. 
 
 Murray, 6 Minn. 305; Bartlett v. New Eng. Carpet Co., 13 Conn. 383; 
 
 Teah, i McCrary, 176; vide Rinds- Janes v. Whitbread, 73 E. C. I/. 406, 
 
 koff V. Guggenheim, 3 Cold. 284; s. u. 5 Eng. L. & Eq. 431; Marks v. 
 
 Olney v. Tanner, 10 Fed. Rep. loi. Hill, 15 Gratt. 400; Rindskoff v. 
 
 2Peters v. Leight, 76 Penn. 289. Guggenheim, 3 Cold. 284. Contra, 
 
 SRindskoff v. Guggenheim, 3 Renton v. Kelly, 49 Barb. 536; Dun- 
 Cold. 284; Marks v. Hill, 15 Gratt. ham v. Waterman, 17 N. Y. 9, s. c. 
 400; Boldero v. London & W. L. & 3 Duer, 166, s. c. 6 Abb. Pr. 357. 
 D. Co., L. R. 5 Ex. Div. 47. 50wen v. Body, 5 A. & E. 28. 
 
 4De Forrest v. Bacon, 2 Conn. 6De Forrest v. Bacon, 2 Conn. 
 
 633; Cunningham v. Freeborn, 11. 633. 
 
ASSIGNMENTS FOE THE BENEFIT OF CREDITORS. 421 
 
 the face of the assignment, so that the court may deter- 
 mine whether it is valid or void as a question of law.^ 
 
 § 396. Sales on Credit.— A prohibition of sales on credit 
 is valid, for the assignee, in the exercise of a just discre- 
 tion, may postpone a sale so as to prevent a sacrifice.^ If, 
 however, there are any circumstances which go to show 
 that a forced sale is intended to the injury of the credit- 
 ors, they should be taken into consideration as an import- 
 ant item of evidence, and in connection with other facts 
 may justify the inference of an intent to defraud.^ A power 
 to sell for cash is valid.* If the instrument is wholly silent 
 as to the manner or terms of sale, the authority of the as- 
 signee to exercise a discretion in regard to a sale for cash 
 or on a reasonable credit is unquestionable upon the or- 
 dinary principles which govern the duties of trustees.^ An 
 express provision, therefore, for that which would be im- 
 plied by law if it were absent, will not vitiate the assign- 
 ments.^ 
 
 ilnloes V. American Exchange 
 Bank, 7 Md. 380, s. c. 11 Md. 173; 
 59 Am. Dec. 190. 
 
 2Carpenter 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- 
 
 3 Van Rossum a. Walker, 11 Barb. 
 237; Bagley v. Bowe, 105 N. Y. 171, 
 59 Am. Rep. 488, 11 N. B. 386. 
 
 *Eicks V. Copeland, 53 Tex. 581, 
 37 Am. Rep. 760. 
 
 BHoffman v. Mackall, 5 Ohio St. 
 124, 64 Am. Dec. 637. 
 
 "Cases may arise in which, for 
 many reasons, sales on credit would 
 best subserve the interests of all, 
 and in such cases the creditors 
 could compel the assignee so to sell; 
 and on the other hand cases may 
 arise in which it would be to the 
 advantage of creditors if the prop- 
 erty should be sold for cash, and in 
 such cases the assignee, who might 
 
 desire or intend to sell on credit, 
 could be compelled to sell for cash. 
 Keller v. Smalley, 63 Tex. 516. 
 
 BKellogg V. Muller, 68 Tex. 182, 
 4 S. W. 361; Moody V. Carroll, 71 
 Tex. 143, 10 Am. St. Rep. 734, 8 S. 
 W. 510; Hoffman v. Mackall, 5 Ohio 
 St. 124, 64 Am. Dec. 637; Conkling 
 V. Conrad, 6 Ohio St. 611; Gates v. 
 Labeaume, 19 Mo. 17; Billings v. 
 Billings, 2 Cal. 107, 56 Am. Dec. 319; 
 Baldwin v. Peet, 22 Tex. 708, 75 Am. 
 Dec. 806; Christopher v. Covington, 
 2 B. Mon. 357; Shackelford v. 
 Planters' Bank, 32 Ala. 238; John- 
 son V. McAllister, 30 Mo. 327;Aber- 
 crombie 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, i Hill Ch. 414; 
 England v. Reynolds, 38 Ala. 370; 
 State V. Benoist, 37 Mo. 500; Gilmer 
 V. Earnhardt, i Jones (N. C.) 559; 
 Berry v. Matthews, 13 Md. 537; Far- 
 
422 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 § 397. Sales on Credit continued. — 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 au 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.^ If, however, 
 the assignment requires a credit to be given beyond that 
 authorized by law on sales by executors and administrators, 
 
 quharson v. Eichelberger, 15 Md. 
 "63; Neally v. Ambrose, 38 Mass. 185; 
 Rogers v. De Forest, 7 Paige, 272; 
 Ashurst V. Mertin, 9 Port. 566; Mc- 
 Clurg V. Allen, 7 Neb. 21; in re 
 John C. Walker, 18 N. B. R. 56; 
 Richardson v. Marqueze, 59 Miss. 
 80, 42 Am. Rep. 353. Contra, Nich- 
 olson V. I,eavitt, 6 N. Y. 510, s. c. 10 
 N. Y. 591, s. c. 4 Sandf. 252, 57 Am. 
 Dec. 499; 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. i, 32; 
 Porter v. Williams, 9 N. Y. 142, s. c. 
 12 How. Pr. 107, 59 Am. Dec. 519; 
 Lyons v. Platner, 11 N. Y. I,eg. Obs. 
 87; Rapalee v. Stewart, 27 N. Y. 310; 
 Gates V. Andrews, 37 N. Y. 657, 97 
 Am. Dec. 764; Bowen v. Parkhurst, 
 24 111. 257; Greenleaf v. Edes, 2 
 Minn. 264; Truitt v. Caldwell, 3 
 Minn. 364, 74 Am. Dec. 764; Pierce 
 V. Brewster, 32 111. 268; Sutton v. 
 Hanford, 11 Mich. 513; Hutchinson 
 V. Lord, I Wis. 286, 60 Am. Dec. 381; 
 Keepzi. Sanderson, 2 Wis. 42, s. c. 12 
 Wis. 352, 60 Am. Dec. 404; Haines z;. 
 Campbell, 8 Wis. 187; Sumner v. 
 Hicks, 2 Black, 532; Richardson v. 
 Rogers, 45 Mich. 591, 8 N. W. 526. 
 It has been held that the power to 
 sell upon such terms and conditions 
 as in the jnrlgmenl 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, 
 II Barb. 198; Southworth v. Shel- 
 don, 7 How.' Pr. 414; Clark v. Pul- 
 ler, 21 Barb. 128; Wilson v. Fergu- 
 son, 10 How. Pr. 175; Wilson v. 
 Robertson, 21 N. Y. 587, s. c. 19 
 How. Pr. 350; Grant v. Chapman, 
 38 N. Y. 293; Hutchinson v. Lord, I 
 Wis. 286, 60 Am. Dec. 381; Keep v. 
 Sanderson, 2 Wis. 42, s. c. 12 Wis. 
 352, 60 Am. Dec. 404; Berry v. Hay- 
 den, 7 Iowa, 469; Whipple v. Pope, 
 33 111- 334; Booth V. McNair, 14 
 Mich. 19; McCallie v. Walton, 37 
 Geo. 611, 95 Am. Dec. 369. Contra, 
 Schufeldt V. Abernethy, 2 Duer, 
 533. It has also been held that the 
 sale can not be for money or "avail- 
 able means." Brigham v. Tilling- 
 hast, 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. 45, s. c. 13 Abb. Pr. 145, s. c. 
 4 Abb. Ap. 457; Goss v. Neale, 5 
 Moore, 19. 
 
 1 Hoffman v. Mackall, 5 Ohio St. 
 124, 64 Am. Dec. 637. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 423 
 
 it will in general be deemed conclusive evidence of fraud.^ 
 The power to sell on credit is always a badge of fraud.^ 
 
 , § 398. Delay of Distribution. — A power to withhold the 
 distribution of the assets for any length of time which the 
 assignee, in his discretion, may think proper, would be 
 invalid, for it would give him the power to constrain the 
 creditors into a commutation or release of their claims.* 
 If there is no authority to sell, a power to deliver the prop- 
 erty to creditors who will take it at stipulated prices 
 vitiates the deed.^ A bank may authorize a sale of its own 
 notes.* Real estate cannot be reserved until all the personal 
 property is exhausted.^ 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.^ 
 
 § 399. Compromise. — The assignee may be allowed to 
 compromise bad and doubtful debts due the assignor.^ 
 Without 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.^ Compositions, moreover, instead of increasing, dimin- 
 ish the nominal assets; instead of nursing the estate by 
 
 IConkling v. Conrad, 6 Ohio St. BMontgomery v. Galbraith, 19 
 
 611. Six months has been held Miss. 555, 
 
 good. Gilmer v. Earnhardt, i Jones 6pierson v. Manning, 2 Mich. 445. 
 
 (N. C.) 559. 7Eicks V. Copeland, 53 Tex. 581, 
 
 2Billings V. Billings, 2 Cal. 107, 37 Am. Rep. 760. 
 
 56 Am. Dec. 319; Baldwin v. Peet, 8Dow v. Platner, 16 N. Y. 562; 
 
 22 Tex. 708, 75 Am. Dec. 806; Carl- Brigham v. Tillinghast, 15 Barb, 
 
 ton V. Baldwin, 22 Tex. 724; Kellogg 618, s. c. 13 N. Y. 215; Robins v. 
 
 V. Muller, 68 Tex. 182, 4 S. W. 361; Embry, i S. & M. Ch. 207; Murphy 
 
 Moody V. Carroll, 71 Tex. 143, 10 v. Bell, 6 How. Pr. 468; White v. 
 
 Am. St. Rep. 734, 8 S. W. 510. In Monsarrat, 18 B. Mon. 809; Berry v. 
 
 Cannon v. Peebles, 2 Ired. 449, 4 Hayden, 7 Iowa, 469; Price v. De 
 
 Ired. 204, the terms were left to Ford, 18 Md. 489; Watkins v. Wal- 
 
 the debtor. See Burrill on Assign- lace, 19 Mich. 57; Bagley v. Bowe, 
 
 ment, 6th edition, section 190, and 105 N. Y. 171, 59 Am. Rep. 488, 11 
 
 notes. N. E. 386. 
 
 SD'Ivernois v. Leavitt, 23 Barb. 63. ^Bellows v. Partridge, 19 Barb. 
 
 ^Banning v. Sibley, 3 Minn. 389. 176. 
 
424 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 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 
 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.^ 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.^ 
 
 § 400. Uncollectible Debts. — When debts are uncollectible, 
 it would be absurd to require suit to be brought.^ 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.* Under 
 peculiar circumstances the debtors to the estate were per- 
 mitted to pay in eight annual instalments.' 
 
 § 401. 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.^ He 
 may therefore be vested with the power to insure,^ to 
 relieve the property from incumbrances,® to release goods 
 from an attachment by giving bond, and indemnifying him- 
 self from the estate,^ to commence, maintain, continue, and 
 prosecute, and also to defend, all suits at law or in equity 
 which he may deem necessary to the execution of the 
 trust,'" to employ suitable agents at a reasonable compensa- 
 tion to be paid out of the estate," to revoke the appoint- 
 
 IDow V. Platner, i6 N. Y. 562; UMann z/. Whitbeck, 17 Barb. 388; 
 
 Price V. De Ford, 18 Md. 489. Vernon v. Morton, 8 Dana, 247; 
 
 swatkins v. Wallace, 19 Mich. 57. Kankiu v. Lodor, 21 Ala. 380; Coate 
 
 sWatkins z/. Wallace, 19 Mich. 57. v. Williams, 9 Eng. L. & Eq. 481; 
 
 4Casey v. Janes, 37 N. Y. 608. s. c. 7 Exch. 205; Gordon v. Cannon, 
 
 ^Ex parte Conway, 12 Ark. 302. 18 Gratt. 387; Maennel v. Murdock, 
 
 6Bello-ws V. Partridge, 19 Barb. 13 Md. 164; Van Dine v. Willett, 24 
 
 176. How. Pr. 206; s. c. 38 Barb. 319; 
 
 7Whitney v. Krows, 11 Barb. 198. Casey v. Janes, 37 N. Y. 608; Hen- 
 
 SWhitney v. Krows, 11 Barb. 198. nessy v. Western Bank, 6 W. & S. 
 
 flVernon v. Morton, 8 Dana, 247. 300, 40 Am. Dec. 560; Nye v. Van 
 
 lOVan Nest v. Yoe, i Sandf. Ch. 4; Husan, 6 Mich. 329, 74 Am. Dec. 
 
 Vernon v. Morton, 8 Dana, 247. 690. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 425 
 
 ment of any attorney whom he may select,^ to pay rent 
 and taxes until the estate is sold,^ to advertise for credit- 
 ors 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,* 
 and to adopt such measures generally, in relation to the 
 settlement of the estate, as will in his judgment promote the 
 true interests thereof.* 
 
 § 402. 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.^ 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.® 
 
 § 403. Exempting Assignee from Liability.— When a debt- 
 or assigns his property in trust for the payment of his 
 debts, 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 
 who have a beneficial interest in the property assigned. 
 If he absolves hina from any portion of the liability which 
 the law attaches to the ofiBce of the 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 
 
 iLangdon v. Thompson, 25 Minn. Republic v. Hodge, 3 D. C. App. 
 
 509. 140; 22 Wash. Law Rep. 299. 
 
 2Van Dine v. Willett, 24 How. ^Beatty v. Davis, 9 Gill. 211. 
 
 Pr. 206; s. c. 38 Barb. 319; Morrison This power is not allowed in New 
 
 V. Atwell, 9 Bosw. 503; Eyre v. York. Darling v. Rogers, 22 
 
 Beebe, 28 How. Pr. 333. Wend. 483, s. c. 7 Paige, 272; Van 
 
 3Ward V. Tingley, 4 Sandf. Ch. Nest v. Yoe, i Sandf. Ch. 4; Planck 
 
 476. V. Schermerhorn, 3 Barb. Ch. 644. 
 
 4Mann v. Whitbeck, 17 Barb. ^Hitchcock v. Cadmus, 2 Barb. 
 
 388. A provision that the assignee 381; vide Schlussel v. Willett, 34 
 
 may dispose of the property as soon Barb. 615, s. c. 12 Abb. Pr. 397, s. c. 
 
 as convenient, will not avoid the 22 How. Pr. 15. 
 assignment. National Bank of the 
 
426 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 at or be blind to transactions in regard to the assets by tbe 
 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.^ 
 
 § 404. The Measure of Assignee's Duty. — 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.^ 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,^ or wanton neglect,* or wil- 
 ful default.^ A stipulation that he shall not be liable for 
 Sbuj loss that may hapj)en 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.*' It has, however, been held that a stipulation that 
 he shall be responsible only for wilful or neglectful de- 
 fault,^ or only for wilful commission, omission or neglect^ 
 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 
 
 lOlmstead v. Herrick, i E. D. ^August v. Seeskind, 6 Cold. i66. 
 
 Smith, 310; Mclntire z/. Benson, SMcIntire v. Benson, 20 111. 500; 
 
 20 111. 509; Finlay v. Dickerson, 29 Robinson v. Nye, 21 111. 592; Finlay 
 
 111. 9; August V. Seeskind, 6 Cold. v. Dickerson, 29 111. 9; Spinney v. 
 
 166. Portsmouth Co., 25 N. H. 9; Brown 
 
 2L,itchfield v. White, 7 N. Y. 438, v. Warren, 43 N. H. 430; True v. 
 
 «. c. 3 Sandf. 545, 57 Am. Dec. 534; Congden, 44 N. H. 48. 
 
 August V. Seeskind, 6 Cold, 166. 6Hutchinson v. Lord, i Wis. 286, 
 
 3I/itchfield V. White, 7. N. Y. 60 Am. Dec. 381. 
 
 438, s. c. 3 Sandf. 545, 57 Am. Dec. 7Whipple v. Pope, 33 111. 334. 
 
 5341 Olmstead v. Herrick, i. B. D. SMaennel v. Murdock, 13 Md. 
 
 Smith, 310; Jacobs v. Allen, 18 164. 
 Barb. 549; Metcalf v. Van Brunt, 37 
 Barb. 621. 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 427 
 
 is bound to use due diligence to obtain possession.^ Tbe 
 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.^ 
 
 § 405. Reasonable Expenses. — A provision may be made 
 for the payment of the charges for drawing the assign- 
 ment^ and for all reasonable expenses attending the due 
 execution of the trust.^ The assignee may therefore be 
 allowed the expense of hiring necessary clerks or agents,^ 
 as well as the expense of all necessary suits.^ A provision 
 for the damages sustained by the assignee is proper, for if 
 he renders himself liable for damages in an honest effort to 
 execute the trust, he is entitled to be indemnified out of the 
 estate.'^ 
 
 § 406. Assignee's Compensation. — Th(j assignee may de- 
 mand payment for his services before accepting the trust.^ 
 A provision may also be made in the assignment for a 
 reasonable compensation for his services.^ If the compen- 
 
 IMcIntire v. Benson, 20 111. 500; vision invalidates the assignment. 
 
 Finlay v. Dickerson; 29 111. 9; True Wolfsheimer v. Rivinius, 64 Md. 
 
 V. Congdon, 44 N. H. 48; Pitts v. 230, i Atl. 128, 54 Am. Rep. 769. 
 
 Viley, 4 Bibb. 446; Spinney v. Ports- ^Jacobs v. Remseu, 36 N. Y. 668; 
 
 mouth Co., 25 N. H. 9; vide Gordon Halstead v. Gordon, 34 N. Y. 422; 
 
 V. Cannon, 18 Gratt. 387. Campbell v. Woodworth, 24 N. Y. 
 
 ^Baldwin v. Peet, 22 Tex. 708, 75 304, s. u. 33 Barb. 425; Eyre v. Beebe, 
 
 Am. Dec. 806; Gordon v. Cannon, 28 How. Pr. 333; Butt v. Peck, i 
 
 18 Gratt. 387; Van Nest v. Yoe, I Daly, 83; Keteltas v. Wilson, 36 
 
 Sandf. Ch. 4; Jacobs v. Allen, 18 Barb. 298, s. c. 23 How. Pr. 69; Bank 
 
 Barb. 549; Hennessey v. Western v. Cox, 6 Me. 395; Blow v. Gage, 44 
 
 Bank, 6 W. S. 300; 40 Am. Dec. 560; 111. 208; Flint v. Clinton Co., 12 N. 
 
 Ashurst V. Martin, 9 Port. 566; H. 430. 
 
 Rankin v. Ivodor, 21 Ala. 380. 5jacobs v. Remsen, 36 N. Y. 668. 
 
 SCampbell v. Woodworth, 24 N. SLentilhon v. Moffat, i Edw. 451. 
 
 Y. 304, s. c. 33 Barb. 425; Hill v. 'Blow v. Gage, 44 111. 208. 
 
 Agnew, 12 Fed. Rep. 230. SMyers v. Fenn, 5 Wall. 205. 
 
 But a provision in the assign- SJacobs v. Remsen, 36 N. Y. 668; 
 
 ment allowing an attorney's fee for Halstead v. Gordon, 34 Barb. 422; 
 
 drawing the assignment constitutes Campbell v. Woodworth, 24 N. Y. 
 
 a preference, and, under statutes 304, s.c. 33 Barb. 425; Eyre w. Beebe, 
 
 prohibiting preferences, such a pro- 28 How. Pr. 333; Keteltas z/.Wilson, 
 
428 ASSIGNMENTS FOR THE BENEFIT OF OEEDITORS. 
 
 sation is excessive, the excess is abstracted from the fund 
 that ought to go to the creditors, and they are thereby de- 
 frauded. The assignment is therefore void, for there is no 
 mode of altering the sum.^ A provision can not be made 
 allowing the assignee both commissions and fees as an 
 attorney. Such an allowance places him in two inconsist- 
 ent 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 proba- 
 bly proceed to close up the assignment with as little litiga- 
 tion 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 con- 
 sult 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 
 cannot be permitted to confide a power of this character to a 
 person of his own selection, and thereby tempt him to con- 
 stant infidelity to his trust.^ 
 
 § 407. 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 reason- 
 able extent in all cases where it appears that any necessity 
 
 36 Barb. 298, s. c. 23 How. Pr. 69; is merely a badge of fraud; Arthur 
 
 Bank v. Cox, 6 Me. 395; U. S. Bank v. Commercial Bank, 17 Miss. 394, 
 
 V. Huth, 4 B. Mon. 423; Vernon v. 48 Am. Dec. 719; Ingrahamz/. Grigg, 
 
 Morton, 8 Dana, 247. In New York 21 Miss. 22. 
 
 the assignee's compensation is lim- iCampbell v. Woodworth, 24 N. 
 
 ited to the commissions allowed by Y. 304, s. c. 33 Barb. 425; Barney 
 
 law to executors, administrators v. Griffin, 2N. Y. 365. 
 
 and guardians. Barney v. Griffin, 2 SHeacock v. Durand, 42 111. 230; 
 
 N. Y. 365; Campbell v. Woodworth, Nichols v. McEwen, 17 N. Y. 22, 
 
 24 N. Y. 304, s. c. 33 Barb. 425. In s. c. 21 Barb. 65. 
 
 other states an excessivy allowance 
 
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 429 
 
 induced such consultation or employment, or that circum- 
 stances existed which justified the expenditure. Such sums 
 are properly embraced in the item of expenses.^ Even 
 without such a provision the assignee has the power to en- 
 force and defend rights connected with and growing out of 
 the trust, and to pay the expenses so incurred.^ But the 
 assignment can not designate the attorney to be employed 
 by the assignee.^ 
 
 § 408. Debtor's Expenses.— ]S"o allowance can be made for 
 the expenses incurred by the debtor in defending suits 
 which may be brought by creditors for the recovery of 
 their debts,^ or in relation to the trust.^ Such an allowance 
 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 distribution for an indefinite 
 length of time. The assignee can not reasonably conject- 
 ure what amount of expenses will be incurred by the 
 debtor in litigation, for the latter has the power to deter- 
 mine what suits shall be defended, and to what extremity 
 of appeal such defence shall be carried. To avoid respon- 
 sibility 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 
 
 iButt V. Peck, I Daly, 83; Jacobs 3Hill v. Agnew, 12 Fed. Rep. 230. 
 
 V. Remsen, 36 N. Y. 668; Iselin v. Contra, Baldwin v. Peet, 22 Tex, 
 
 Dalrymple, 27 How. Pr. 137, s. c. 708, 75 Am. Dec. 806. 
 
 2 Robt. 142. As to attorney's fees ^Sewall v. Russell, 2 Paige,. 175. 
 
 for drawing the instrument of as- BAustin v. Bell, 20 Johns. 442, 11 
 
 signment see section 405, ante. Am. Dec. 297. 
 
 Siselin V. Dalrymple, 27 How. 
 Pr. 137, s. c. 2 Robt. 142. 
 
430 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 acts, and ultimately to coerce tliem into his own terms of 
 settlement.^ 
 
 § 409. ProTision Regarding 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,^ or unless the debt is 
 duly proved.^ The amount of the demand may be limited t& 
 such sum as may be found to be dae upon examination and 
 settlement.* A prohibition of payment, unless the debtor 
 pronounces the claim to be just, with permission to the 
 creditors to establish their demands by suit or arbitration, is 
 good.' Costs that have accrued or may accrue may be ex- 
 cluded.^ The assignee may be required to exhibit a state- 
 ment of his accounts periodically to the debtor.^ 
 
 § 410. Composition with Creditors. — The assignee can not 
 be allowed to compound with the creditors.^ But he may 
 compromise doubtful claims with assignor's debtors.^ 
 
 § 411. 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 
 
 iMead v. Phillips, I Sandf. Ch. Robins v. Embry, i S. & M. Ch.. 
 
 83. 207. 
 
 SAshurst V. Martin, 9 Port. 566; SGroverz;. Wakeman, 11 Wend. 
 
 U. S. Bank v. Huth, 4 B. Mon. 423. 187; s. c. 4 Paige, 23, 25 Am. Dec. 
 
 3U. S. Bank v. Huth, 4 B. Mon. 624; Woodburn v. Mosher, 9 Barb. 
 
 423; Spencer v. Jackson. 2 R. I. 35; 255; Hudson v. Maze, 4 111. 578; 
 
 U. S. V. Bank of U. S., 8 Rob. (La.) Smith v. Leavitts, 10 Ala. 92; Smith 
 
 262; Hill V. Agnew, 12 Fed. Rep. v. Hurst, ro Hare, 30, h. u. 15 Eng. 
 
 230. L. & Eq. 520, s. c. 17 Jur. 30, s. c. 
 
 4Mussey v. Noyes, 26 Vt. 462. 22 L. J. Ch. (N. S.) 289; vide White 
 
 ^Ex parte Conway, 12 Ark. 302; v. Monsarrat, 18 B. Mon. 809; State: 
 
 Robins v. Embry, 1 S. & M. Ch. 207. v. Benoist, 37 Mo. 500. 
 
 BGates V. I,abeaume, 19 Mo. 17. 9See section 399, ante. 
 
 1 Ex parte Conway, 12 Ark. 302; 
 
ASSIGNMENTS EXACTING RELEASES. 431 
 
 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.^ 
 
 CHAPTER XV. 
 
 ASSIGNMENTS EXACTING RELEASES. 
 
 § 413. Nature of Question.— An assignment sometimesf 
 contains a stipulation that no creditor shall share in the 
 estate until he shall execute a release discharging the 
 debtor from all demands against him. The question in 
 such case is whether an assignment for the benefit of 
 creditors, upon condition that each shall execute a previous 
 release of his whole debt, or be postponed 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. 
 
 § 413. 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 shoiild be 
 assured that there is not with the debtor an option at any 
 time t» 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 
 
 IGimmell v. Adams, ii Humph. s. c. 2 Johns. Ch. 565; vide Mc- 
 283; Marsh v. Bennett, 5 Mclvean, Farland v. Birdsall, 14 Ind. 126. 
 117; Murray v. Riggs, 15 Johns. 571, 
 
432 ASSIGNMENTS EXACTING RELEASES. 
 
 own law, Tlie debtor dictates the terms of tlie settle- 
 ment. If the creditor refuses, Ms 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.^ 
 
 § 414. Coercion. — Parties not under legal disabilities 
 may make such contracts as they please, and if they are 
 supported 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 
 debts, and exempting his future acquisitions from all lia- 
 bility.^ It is taking an undue advantage of creditors to 
 impose this condition. Volenti non fit injuria, if the Credit- 
 ors accept, but it is making volunteers by compulsion. It 
 
 iBrown v. Knox, 6 Mo. 302; Mil- ^Grover v. Wakeman, 11 Wend, 
 
 ler V. Conklin, 17 Geo. 430, 63 Am. 187, 4 Paige 23, 25 Am. Dec. 624. 
 Dec. 248; Henderson v. Bliss, 8 
 lud. 100. 
 
ASSIGNMENTS EXACTING RELEASES. 
 
 433 
 
 is mockery to say that consent under sucli circumstances is 
 optional or voluntary.^ 
 
 § 415. The Debtor's Obligation.— Upon principles of mor- 
 ality, law and justice, a debtor is bound to apply his present 
 property and his future earnings and acquirements to the 
 payment of his just debts, and creditors upon the clearest 
 principles of natural justice and of law have a right to pursue 
 such property, earnings and acquirements until their claims 
 are fully satisfied and paid. Of this inherent right of the 
 creditor, unless relinquished by his consent, the debtor 
 has no right to deprive Mm. All unjust and indirect 
 means used by a debtor to extort from his creditor a sur- 
 render of such rights; all physical or moral coercion 
 
 i"An insolvent debtor has no 
 right to dictate terms -which shall 
 make him independent of his legal 
 obligations. It may be that this is 
 not technically a trust for his own 
 benefit — which would be in plain 
 violation of law — but it is practi- 
 cally so, and accomplishes more 
 sweeping results. If the property 
 were not assigned creditors could, 
 by legal process, exhaust it, and 
 still leave him liable on all debts 
 not fully satisfied. A general as- 
 signment can only change the 
 method of appljdng property in 
 payment, by what ought to be a 
 fairer and less' wasteful division. 
 But it is contrary to justice and 
 against public policy to allow 
 debtors to coerce their creditors 
 into releasing their debts." Hub- 
 bard V. McNaughton, 43 Mich. 220, 
 38 Am. Rep. 176, 5 N. W. 293. 
 
 "Though expressing no opinion 
 as to the validity of assignments 
 creating preferences merely, it is 
 sufficient to say that the preference 
 here claimed is incidental to the 
 attempted coercive discharge of 
 the debtor. By such discharge he 
 receives a certain benefit. He 
 
 seeks, in efiect, to legislate in his 
 own interest, to make for himself 
 a private bankrupt law, independ- 
 ent of statutory enactments. He 
 seeks to execute this law he has 
 made and procure his own discharge 
 by compelling his creditors to take 
 what he has ofEered them. There 
 is a positive delay of the creditors 
 by placing the property out of 
 reach of their legal pursuit, and 
 preventing a distribution within 
 two months after the date of the 
 deed. The creditors then are to be 
 delayed in receiving the value of 
 the property which ought to belong 
 to them immediately upon its con- 
 veyaace to the assignee. For whose 
 benefit was this delay ? Not fbr 
 the creditors, for they will get no 
 more for assenting to or refusing 
 the conditions proposed than they 
 would get at once, without any 
 such condition. The delay is mani- 
 festly intended to benefit the debtor 
 in order that he may secure the 
 advantages of the coveted release 
 to which he has no rightful claim." 
 Duggan V. Bliss, 4 Colo. 223, 34 Am. 
 Rep. 80. 
 
434 ASSIGNMENTS EXACTING RELEASES. 
 
 resorted to by a debtor to effect sucli purpose, are fraudu- 
 lent against creditors. The design of an assignment 
 exacting releases is apparent upon tbe face of the instru- 
 ment, 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 credit- 
 ors 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 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 effects upon the rights 
 of those creditors who refuse to release are obvious.^ 
 
 § 416. Distinction Between Conditional 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.^ 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 one case he proposes to pay one or more 
 creditors, still leaving his liability and the balance of his 
 
 iMcCall V. Hinkley, 4 Gill. 128; , 2Brown v. Knox, 6 Mo. 302; 
 
 The Watchman, i Ware, 232. McCall v. Hinkley, 4 Gill. 128, 
 
ASSIGNMENTS EXACTING RELEASES. 435 
 
 property unaffected as regards the others, while in the 
 other case he design^ to influence or coerce all into the 
 terms stipulated, or remove his property out of their reach. 
 He holds out to the creditors this contingent preference to 
 become absolute only by an act of the creditor, beneficial to 
 the debtor himself, by a release of the debt. Such a power 
 would enable the debtor at any time to nullify the statute 
 and lock up his property against his creditors until they 
 accept the terms he choses to dictate.^ If one assignment 
 fails through their refusal to accept, he may make another 
 assignment of the resulting trust, and thus keep them per- 
 petually at bay. 
 
 § 417. Keal Object. — The real object of the provision, 
 moreover, is not so much to afford a preference to particu- 
 lar creditors as to secure a release from them. And to this 
 end it is admirably adapted. It is contrived so as to create 
 a scramble among the creditors, and a scramble under such 
 circumstances that its natural result will be an unjust advan- 
 tage 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. The 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. 
 
 § 418. Future Earuings. — One who contracts a debt agrees 
 not merely that he will pay it if his present property is 
 
 iGrover z/. Wakeman, ii Wend. his property by means of such an 
 
 187 s. c. 4 Paige, 23; 25 Am. Dec. assignment until the creditors com- 
 
 624; Alberts. Winn, 5 Md. 66, s. c. ply with his terms, he can success- 
 
 7 Gill. 446, s. c. 2 Md. Ch. 169, s. c. fully delay, hinder and defraud his 
 
 2 Md. Ch. 42. creditors." Armstrong v. Byrne, i 
 
 " If he can be allowed to lock up Edw. Ch. 79. 
 
436 ASSIGNMENTS EXACTING KELEASES. 
 
 suflScient, but also if Ms 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 haye in view only the property in possession 
 when the contract is formed, or that the obligation of in- 
 debtedness does not extend to future acquisitions. The 
 prospect of an inheritance frequently forms a leading 
 inducement to credit, and industry, talents and integrity 
 constitute a fund which is as confidently trusted to as pro- 
 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.-^ 
 
 § 419. Basis of th* Right to Exact a Release.— The right, 
 either legal or moral, of a debtor to provide in his assign- 
 ment 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.^ 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.^ Although 
 the statute permits a debtor to prefer one creditor to 
 another, it does not permit him to prefer himself to any 
 creditor. 
 
 iGrover v. Wakeman, ii Wend. SMcCall v. Hinkley, 4 Gill. 128; 
 
 187, s. c. 4 Paige, 23, 25 Am. Dec. Albert v. Winn, 5 Md. 66, s. c. 7 
 
 624- Gill. 446, s. c. 2 Md. Ch. 42, 169; 
 
 SGrover v. Wakeman, 11 Wend. Grover v. Wakeman, 11 Wend. 187, 
 
 187, s. c. 4 Paige, 23, 25 Am. Dec. s. c. 4 Paige, 23, 25 Am. Dec. 624. 
 624. 
 
ASSIGNMENTS EXACTING RELEASES. 437 
 
 § 420. Dissent of Jurists— PreTailing Doctrine.— Wherever 
 
 such an assignment has been sustained it has been against 
 the sound conviction 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 minds 
 have yielded their own convictions. Chief Justice Mar- 
 shall,^ Chief Justice Taney,^ and Mr. Justice Story ,^ may 
 be mentioned as among the distinguished jurists who were 
 influenced by the weight of authority and what seemed to 
 them to be the preponderance of judicial opinion, against 
 their better judgment and sounder reasoning. The weight 
 of authority, which at the time of their decisions, seemed 
 to be in favor of the validity of such provisions, now seems 
 to be tending the other way,* and the legislative policy 
 of many states, in more recent years, has caused the enact- 
 ment of statutory prohibitions against them. In short, the 
 prevailing American doctrine may be stated to be that such 
 provisions are invalid.^ 
 
 l"We are far from being satis- Ark. 406, 38 Am. Rep. 40, in which 
 
 fied that upon general principles such provisions had been upheld: 
 
 such a deed ought to be sustained." "The case has stood for more than 
 
 Brashear v. West, 7 Pet. 608. five years, although it was never 
 
 2"The court is not prepared satisfactory to the profession. It 
 
 to affirm that preferences of this is, however, indefensible in prin- 
 
 character are entirely consistent ciple, and it was decided against the 
 
 with the principle of the statute clear weight of authority." 
 
 of 13 Elizabeth." White v. Winn, BGrover v. Wakeman, 11 Wend. 
 
 8 Gill 499. 187, s. c. 4 Paige, 23, 25 Am. Dec. 
 
 3"! am free to say that if the 624; Albert v. Winn, 5 Md. 66, s. c. 
 
 question were entirely new, and 4 Gill. 446, s. c. 2 Md. Ch. 42, 169; 
 
 many estates had not passed upon Widgery v. Haskell, 5 Mass. 144, 4 
 
 the faith of such assignments, the Am. Dec. i; Ingraham v. Geyer, 13 
 
 strong inclination of my mind Mass. 146, 7 Am. Dec. 132; Harris v. 
 
 would be against the validity of Sumner, 19 Mass. 129; Ingraham v. 
 
 them." Halsey v. Whitney, 4 Wheeler, 6 Conn. 277; Atkinson v. 
 
 Mason 206. Jordan, 5 Ohio, 295, s. c. Wright, 
 
 *See opinion in Collier w. Davis, 247, 24 Am. ifec. 281; The Watch- 
 
 47 Ark. 367, 58 Am. Rep. 758, i S. man. Ware, 232; Armstrong v. 
 
 W. 684, discussing the question and Byrne, 1 Edw. 79; Mills v. Levy, 2 
 
 overruling the previous doctrine of Edw. 183; Ames v. Blunt, 5 Paige, 
 
 that jurisdiction. The court says, 13; Van Winkle v. McKee, 7 Mo. 
 
 speaking of Clayton v. Johnson, 36 435; Brown v. Knox, 6 Mo. 302; 
 
438 
 
 ASSIGNMENTS EXACTING RELEASES. 
 
 § 421. Release While Debtor Eemalns 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 frand upon those who refuse to 
 become parties to such a contract. The parties treat 
 mpon equal terms. The property is open to the pursuit 
 ■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 com- 
 promise moving to the creditors is the advantage of a 
 preference over others in a contemplated assignment.^ 
 
 Drake v. Rogers, 6 Mo. 317; Barrett 
 
 V. Reed, Wright, 700; Howell v. 
 
 Edger, 4 111. 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. Roy, 13 I^a. 454, 33 Am. 
 
 Dec. 568; Miller v. Conklin, 17 Geo. 
 
 430, 63 Am. Dec. 248; Henderson v. 
 
 Bliss, 8 Ind. 100; Smith z/. Woodrufi, 
 
 I Hilt. 462; Butler v. Jaffray, 12 Ind. 
 
 504; Wilde V. Rawlings, i Head, 34; 
 
 Palmer v. Giles, 5 Jones Eq. 75; 
 
 Hurd V. Silsbee, 10 N. H. 108, 34 
 ' Am. Dec. 142; 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; Collier z/. Davis, 47 Ark. 367, 58 
 
 Am. Rep. 758, i S. W. 684; Duggan 
 
 ». Bliss, 4 Col. 223, 34 Am. Rep. 80. 
 Contra, McCall v. Hinkley, 4 Gill. 
 
 128; Kettlewell v. Stewart, 8 Gill. 
 
 472; White V. Winn, 8 Gill. 499; 
 
 Green v. Trieber, 3 Md. 11; 
 
 Brashear v. West, 7 Pet. 608; Lip- 
 
 pincott V. Barker, 2 Binn. 174, 4 Am. 
 
 Dec. 433; Kingz/. 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; Robinson 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, 30 Am. Dec. 363; Skipwith v. 
 
 Cunningham, 8 Leigh, 271, 31 Am. 
 
 Dec. 642; Ashurst v. Martin, 9 Port. 
 
 566; Hall V. Dennison, 17 Vt. 310; 
 
 Phippen v. Durham, 8 Gratt. 457; 
 
 Heydock v. Stanhope, i 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 
 
 (overruled.). 
 
 iSpaulding v. Strang, 37 N. Y. 
 135. s. c. 38 N. Y. 9, s. c. 32 Barb. 
 235, s. c. 36 Barb. 310; Low v. Gray- 
 don, 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. 
 
ASSIGNMENTS EXACTING RELEASES. 439 
 
 The assignee may also covenant to obtain a release.^ 
 
 § 422. Must ConTey All.— As there are some states in which 
 an assignment exacting releases is held valid, the law 
 relating to them will now be considered. 
 
 Such an assignment must convey all the property of the 
 debtor.^ The creditors are entitled to the benefit of 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.^ When it 
 is made by partners, it must be signed by all the partners,* 
 and convey all their property, as well their individual 
 estate as their partnership effects.^ 
 
 § 423. Not Reserve 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 
 
 IHastings v. Belknap, i Denio, ney, 4 Mason 206; Bank v. Cox, 6 
 
 190. Me. 395; Spencer v. Jackson, 2 R. I. 
 
 SGreen v. Trieber, 3 Md. 11; 35; Stewart z/. Kerrison, 3 Rich. (N. 
 
 Sangston v. Gaither, 3 Md. 40; S.) 266. 
 
 Seaving v. Brinkerhoff, 5 Johns. Ch. SHennessey v. Western Bank, 6 
 
 329; Thomas v. Jenks, 5 Rawle, 221; W. & S. 300, 40 Am. Dec. 560; in re 
 
 Hennessey v. Western Bank, 6 W. Wilson, 4 Penn. 430; Weber v. 
 
 & S. 300, 40 Am. Dec. 560; in re Samuel, 7 Penn. 499. 
 Wilson, 4 Penn. 430; Johns v. Bol- ^Maughlin v. Tyler, 47 Md. 545. 
 
 ton, 12 Penn. 339; Graves v. Roy, ^Insurance Co. v. Wallis, 23 Md. 
 
 13 La. 454, 33 Am. Dec. 568; Hen- 173; Thomas z/. Jenks, 5 Rawle, 221; 
 
 derson v. Bliss, 8 Ind. 100; Gads- Hennessey v. Western Bank, 6 W. 
 
 den V. Carson, 9 Rich. Eq. 252, 70 & S. 300, 40 Am. Dec. 560; Hender- 
 
 Am. Dec. 207; Gordon z;. Cannon, 18 son v. Bliss, 8 Ind. 100; Gordon v. 
 
 Gratt. 387. Contra, Halsey v. Whit- Cannon, 18 Gratt. 387. 
 
440 
 
 ASSIGNMENTS EXACTING EBLEASES. 
 
 effect is to lock up the surplus until the preferred creditors 
 are paid off, and the others are not only hindered and 
 delayed in their remedies, but they are necessarily 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.-^ 
 
 § 424. Reservation of Surplus. — The surplus which re- 
 mains after the payment in full of all the claims of the 
 creditors who assent to the deed can not be reserved to the 
 debtor.^ There must be no reservation to the debtor, either 
 
 IReavis v. Garner, 12 Ala. 661; 
 Sangston v. Gaither, 3 Md. 40; Trie- 
 ber V. Green, 3 Md. 11; HoUins v. 
 Mayer, 3 Md. Ch. 343; Burd z/. Smith, 
 4 Dall. 76; Austin v. Bell, 20 Johns. 
 442, II Am. Dec. 297; Seaving v. 
 Brinkerhoff, 5 Johns. Ch. 329; Len- 
 tilhon V. Moffatt, i Edw. 451. Con- 
 tra, Halsey v. Whitney, 4 Mason, 
 206; Andrews v. Ludlow, 22 Mass. 
 28; Dockray v. Dockray, 2 R. I. 547. 
 "We find, notwithstanding there is 
 some conflict, the weight of author- 
 ity is against such a reservation 
 when the assignment contemplates 
 a. pro rata payment of certain cred- 
 itors contingent upon their releas- 
 ing the debtor from all indebted- 
 ness. In case any of the creditors 
 decline to accept, however, the 
 portion coming to them would be 
 returned to the assignor. This is a 
 contingency upon the happening 
 of which a part of his estate would 
 be returned to him, while he had 
 outstanding unsatisfied debts. 
 Most of the courts which hold that 
 an assignment which exacts a 
 release as a condition of participa- 
 tion in the assignor's estate is valid, 
 hold also that such assignment 
 must convey all the property of the 
 debtor." Greeley v. Dixon, 2i 
 Fla. 413. 58 Am. Rep. 673, citing 
 this section. 
 
 SBridges v. Hindes, 16 Md. loi; 
 Grimshaw v. Walker, 12 Ala. loi; 
 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. 
 
 "A reservation of the surplus to 
 the grantor stamps the deed as con- 
 structively fraudulent. To use the 
 language of Ware, J., in the case of 
 the Watchman, Ware's Rep. 247, 
 the grantor prefers himself to the 
 dissenting creditors. The insolvent 
 debtor can reserve no use or bene- 
 fit to himself out of the property 
 assigned. He may stipulate for a 
 release but he must dedicate all his 
 property not exempt by law to the 
 payment of all his creditors, not 
 necessarily to the payment of all 
 in equal proportions, for he may 
 prefer such as will execute releases; 
 but the deed must provide for the 
 distribution of any surplus that 
 may remain in the hands of the 
 trustee, after the payment of the 
 preferred creditors, among the 
 other creditors, whether they assent 
 or not." McReynolds v. Dedman, 
 47 Ark. 347, I S. W. 552, citing this 
 chapter. 
 
 Contra, Andrews v. Ludlow, 22 
 Mass. 28; Livingston v. Bell, 3 
 Watts, 198; Mechanics' Bank v. 
 
ASSIGNMENTS EXACTING RELEASES. 441 
 
 express or implied. The court cannot look outside of the 
 assignment to ascertain whether there will be a surplus or 
 not. That would make the efiBcacy 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 credit- 
 ors 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.^ 
 
 § 425. No Extrinsic Evidence.— It is the duty of the party 
 who sets up an assignment to show that the debtor ha& 
 done what the law requires to give it validity and effect.^ 
 Extrinsic evidence. can not be given to show that in point 
 of fact the assignment does convey all the property which 
 the debtor had at the time of its execution.* 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.* No 
 particular words are necessary to be used, but such must 
 be employed as will convey all the debtor's property. All 
 that is required is that the words should comprehend all, 
 and thereby negative every presumption that there is other 
 property. Any apt words to this end will be sufficient.® 
 The words "estate of every kind and description" are suf- 
 ficient.® It is not necessary that there should be words of 
 
 Gorman, 8 W. & S. 304; Haven v. v. Harris, 6 R. I. 331; Gordon v^ 
 
 Richardson, 5 N. H. 113; Skipwith Cannon, 18 Gratt. 387. 
 
 V. Cunningham, 8 I/eigh, 271, 31 ^Rosenberg v. Moore, 11 Md.. 
 
 Am. Dec. 642; Gordon v. Cannon, 376; Barnitz v. Rice, 14 Md. 24, 74 
 
 18 Gratt. 387; Todd v. Bucknam, 11 Am. Dec. 513; Seaving v. Brinker- 
 
 Me. 41. hoff, 5 Johns. Ch. 329. 
 
 iMalcom v. Hodges, 8 Md. 418; BBarnitz v. Rice, 14 Md. 24, 74 
 
 West V. Snodgrass, 17 Ala. 549. Am. Dec. 513. 
 
 2Sangston v. Gaither, 3 Md. 40; BFarquharson ». Eichelberger, 15. 
 
 Keighler ». Nicholson, 4 Md. Ch. 86. Md. 63; Bridges z'. Hindes, 16 Md. 
 
 SBarnitz v. Rice, 14 Md. 24, 74 loi. 
 Am. Dec. 513; Contra, Nightingale 
 
442 ASSIGNMENTS EXACTING RELEASES. 
 
 inlieritance. In a deed of trust conveying property for 
 tlie payment of the debts of the grantor, the omission of 
 the words "and his heirs" does not have the effect of con- 
 fining the grant to personalty, but where the intent to con- 
 vey all the property of the debtor is manifest, a fee simple 
 in realty passes by implication under the deed.-^ 
 
 § 426. Yarious Requisites. — All the partners must unite 
 in the execution of such an assignment.^ The right of 
 dower of the debtor's wife need not be conveyed.* A cred- 
 itor 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 individual and partnership, shall be made liable for 
 the payment of his debt.* 
 
 A provision for the payment of forty per cent., with a 
 stipulation for a return of the surplus, renders the deed 
 void.^ If the deed professes to convey all, but assigns 
 only a portion, it is fraudulent.® If the debtor absconds 
 with a portion of the funds, and executes an assignment of 
 the balance, the deed is void, but it must be proved that 
 he intends to defraud by the deed, and that it is actually 
 the instrument to defraud.'^ A release will be void if the 
 debtor has executed prior fraudulent conveyances.^ 
 
 IFarquharson v. Eichelberger, witli v. Cunningham, 8 Leigh, 271, 
 
 15 Md. 63; Spessard v. Rohrer, 9 31 Am. Dec. 642. 
 
 GilL 261; Angell v. Rosenberg, 12 Bjacotz'. Corbett, i Chev. Eq. ?!• 
 
 Mich. 241. It has been held that a provision 
 
 2/» re Wilson, 4 Penn. 430; Hen- for the payment of only a certain 
 
 nessey v. Western Bank, 6 W. & S. per cent, is good when it appears 
 
 300; 40 Am. Dec. 560; vide Gordon that no benefit will result thereby 
 
 V. Cannon, 18 Gratt. 387. to the debtor. Nightingale v. Har- 
 
 SBreitenbach v. Dungan, I A. L. ris, 6 R. I. 321. 
 
 Reg. 419. 6Le Prince v. Guillemot, i Rich. 
 
 *Maennel v. Murdock, 13 Md. Eq. 187; Nightingale zi. Harris, 6 R. 
 
 164. It has been held that property I. 321. 
 
 encumbered beyond its value. Fas- 7Stewart v. Spencer, i Curt. 157; 
 
 sett w. Phillips, 4 Whart. 399, or of Spencer v. Jackson, 2 R. I. 35; 
 
 small value, Phippen «. Durham, 8 Nightingale v. Harris, 6 R. I. 321; 
 
 Gratt. 457, need not be included, Foley v. Bitter, 34 Md. 646. 
 
 and that a small sum might be 7Doe v. Scribner, 41 Me. 277. 
 reserved to pay small debts. Skip- 
 
ASSIGNMENTS EXACTING RELEASES. 443 
 
 § 427. 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 may not afford, and to make up their minds deliber- 
 ately 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.-^ 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 presump- 
 tion of fraud.^ If no time is fixed within which the release' 
 must be executed, the deed is void.^ Two months* and six 
 months* have been deemed suflBcient. Nine months has 
 been considered too long.® A different time may be allowed 
 to resident and non-resident creditors.'^ 
 
 § 428. Mere Doubtful Coustructlon Immaterial. — No doubt 
 which may exist as to the construction of the assignment, 
 nor any difBculty 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 
 diflBculty may tend to prove and even be in themselves 
 sufficient to prove an intent to delay, hinder or defraud 
 creditors and make the deed void, but if no such intention 
 exists the assignment will be valid.^ 
 
 § 429. Preferences. — An assignment need not convey the 
 property for the benefit of all creditors equally, but may 
 give preferences,® and confer a benefit upon some creditors 
 
 IGordon v. Cannon, i8 Gratt. Gratt. 387. Contra, Pox v. Adams, 
 
 387. 5 Me. 245. 
 
 SHasley v. Whitney, 4 Mason, BHasley v. Whitney, 4 Mason, 
 
 206; Pearpoint v. Graham, 4 Wash. 206; Ashurst v. Martin, 9 Port. 566. 
 
 C. C. 232; Ashurst V. Martin, 9 6Burd v. Smith, 4 Dall. 76. 
 
 Port. 566. 7Hennessy v. Western Bank, 6 
 
 Henderson v. Bliss, 8 Ind. 100; W. & S. 300, 40 Am. Dec. 560. 
 
 Pearpoint v. Graham, 4 Wash C. C. SGordon v. Cannon, 18 Gratt. 387. 
 
 232. flMaennel v. Murdock, 13 Md. 
 
 ^Pearpoint v. Graham, 4 Wash. 164; Gordon v. Cannon, 18 Gratt. 
 
 C. C. 232; Gordon v. Cannon, 18 387. 
 
444 ASSIGNMENTS EXACTING RELEASES. 
 
 absolutely, and to others only upon condition.^ The prop- 
 erty may he 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,^ and the question of prime cost may be left to be 
 settled by the assignee.^ No provision can be made in favor 
 of creditors who have released under a prior assignment.* 
 
 § 430. The form of the Kelease. — The form of the release 
 may be prescribed, for the creditor is a purchaser of his 
 preference, and must take it on the debtor's terms.^ An 
 assignment may provide for the release of sureties.® It is 
 not necessary that the creditors should assent before the 
 assignment is recorded.^ 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 firm.* 
 
 § 431. Effect of Release of Void Assignment. — 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.^ Such an assign- 
 ment, however, is binding upon the creditors who execute 
 releases until it is declared void by a competent court. As 
 the assignment is void, the consideration 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 sub- 
 sequent attachment laid by a creditor who does not execute 
 a release.-'" 
 
 iRankin v. Lodor, 21 Ala. 380. ^Haven v. Richardson, 5 N. S. 
 
 2Bayne v. Wylie, 10 Watts, 309. 113. 
 
 «Bayne v. Wylie, 10 Watts, 309. SHalsey v. Whitney, 4 Mason, 
 
 ^Nightingale v. Harris, 6 R. I. 206. 
 
 321- 8/« re Wilson, 4 Penn. 430. 
 
 BBayne v. Wylie, 10 Watts, 309. Winsurance Co. v. Wallis, 23 Md. 
 
 BBank V. Cox, 6 Me. 395. 173; Maughlin v. Tyler, 47 Md. 545. 
 
HOW FAR A FRAUDULENT TRANSFER is" VOID. 445 
 
 CHAPTER XVI. 
 
 HOW FAR A FRAUDULENT TRANSFER IS VOID. 
 
 § 432. 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 wqrd 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.^ A 
 conspiracy to defraud creditors is an offence against good 
 morals, common honesty and sound public policy, for it is 
 a let and hindrance to the due course and execution of law 
 and justice, and tends to overthrow all true and plain 
 dealing, bargaining and chevisance between man and man, 
 without which no commonwealth or civil society can be 
 maintained or continued. It is therefore a proper case 
 for the application of the maxim, " In pari delicto melior 
 est conditio defendentis." Porro autem si et dantis ei exci- 
 pientis turpis causa sit, possessorem potiorem esse et idea 
 repetitionem 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 
 own toils. On any other principle a knave might gain, 
 but could not lose, by a dishonest expedient, and induce- 
 
 iNellis V. Clark, 4 Hill, 424, s. c. by its express letter makes such 
 
 20 Wend. 24. transfers valid and unimpeachable 
 
 2Dig. Lib. 12, Tit, 5 (C.) 8. as between the parties. So that if 
 
 3" No principle of law is more this were a case, which in conse- 
 
 firmly established, or rests upon quence of its hardship strongly 
 
 higher principles of morality or appealed to our sympathies and 
 
 more obvious considerations of naturally raised a desire to extend 
 
 public policy than that which help, still it is manifest that no 
 
 declares that a transfer of property help could be given without a plain 
 
 made in fraud of creditors, while subversion of a positive rule of 
 
 void as to them, is good between law." Doughty z;. Miller, 50 N.J. 
 
 the parties. The statute of frauds, Eq, 529-536, 25 Atl. 153. 
 
446 
 
 HOW 'FAR A FRAUDULENT TRANSFER IS VOID. 
 
 ments would be furnislied to unfair dealing if the law 
 were to repair the accidents of an unsuccessful trick. A 
 fraudulent grantee, therefore, is allowed to retain the prop- 
 erty, 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 consequence of a fraudu- 
 lent experiment shall be made as disastrous as possible.^ 
 The law endeavors to environ a debtor with all possible 
 perils and make it appear that honesty is the best policy.^ 
 
 § 433. Binds Grantor and His llepresentatives.— A fraud- 
 ulent transfer is good as against the grantor,^ his 
 
 iStewart v. Kearney, 6 Watts 
 453. 31 Am. Dec. 482; Falconer v. 
 Jones, 3 Dev. 334. 
 
 2Mnrpliy v. Hubert, 16 Penn. 50. 
 
 SStewart v. Iglehart, 7 G. & J. 
 132; 28 Am. Dec. 202; Freeman v. 
 Sedgwick, 6 Gill. 28, 46 Am. Dec. 
 650; Phettiplace v. Sayles, 4 Mason, 
 312; Canton v. Dorchester, 62 Mass. 
 525; Terrell v. Imboden, 10 Leigh, 
 321; Simpson v. Graves, Riley Ch. 
 219, 232; Gifford V. Ford, 5 Vt. 532; 
 Hartley v. M' Annuity, 4 Yeates, 95, 
 2 Am. Dec. 396; Stewart v. Dailey, 
 6 Litt. 212; Chessman v. Exall, 6 
 Exch. 341; Sumner v. Murphy, 2 
 Hill (S. C.) 488, 32 Am. Dec. 397; 
 Leshey v. Gardner, 3 W. & S. 314, 
 38 Am. Dec. 764; Williams z/.Avent, 
 5 Ired. Bq. 47; Tuesley v. Robinson, 
 103 Mass. 558, 4 Am. Rep. 575; 
 Dale V. Harrison, 4 Bibb. 65; Byrd 
 V. Curlin, i 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. Lozen- 
 zana, 53 Cal. 197; Maher v. Bovard, 
 14 Nev. 324; Schuman .v. Peddicord, 
 50 Md. 560; Wolfe V. Beecher 
 Manuf. Co. 47 Conn. 231; Shall- 
 cross V. Deats, 43 N. J. 177; Keel v. 
 Larkin, 83 Ala. 142; 3 So. 296; Will- 
 iams V. Higgins, 69 Ala. 523; Bush 
 
 V. Rogan, 65 Ga. 321; 38 Am. Rep. 
 785; Songer v. Partridge, 107 111. 
 529; Moore v. Horsley, 156 111. 36, 
 40 N. E. 323; Barrow v. Barrow, 108 
 Ind. 345; Mercer v. Mercer, 29 la. 
 557; Crawford v. Lehr, 20 Kans. 
 509; Butler z/. Moore, 73 Me. 151; 
 Newell V. Newell, 34 Miss. 385; 
 Peterson v. Brown, 17 Nev. 172; 45 
 Am. Rep. 437; 30 Pac. 697; Ruck- 
 man V. Ruckman, 32 N. J. Eq. 259; 
 Doughty V. Miller, 50 N. J. 
 Eq. 529. 25 Atl. 153; Water- 
 bury V. Westervelt, 9 N. Y. 598; 
 York V. Merritt, 80 N. C. 285; Bone- 
 steel v. Sullivan, 104 Penn. St. 9; 
 Zuver V. Clark, 104 Penn. St. 222; 
 Horn V. Star Foundry Co., 23 W. 
 Va. 522; Thornburg v. Bowen, 37 
 W. Va. 538; 16 S. B. 825; Davy v. 
 Kelly, 66 Wis. 452; 29 N. W. 232; 
 Graham v. La Crosse and Milwau- 
 kee R. R. Co., 102 U. S. 148; Paunce- 
 foot V. Blunt, 3 Rep. 82, a; Shaw v. 
 Jeffrey, 13 Moo. P. C, 432; Reed v. 
 Thoyts, 6 M. & W. 410; 8 D. P. C. 
 416; Curtis V. Price, 12 Ves. 103; 
 Smith V. Cherrill, L. R. 4 Eq. 390; 
 36 L. J. (N. S.) Ch. 738; 15 W. R. 
 919; r6 L. T. (N. S.) 517; Tanqueray 
 V. Bowles, L. R. 14 Eq. 151-157; 
 vide Taylor v. Bowers, L. R. i Q. B. 
 D. 291; 46 L.J. (N. S.) Q. B. 39; 24 
 W. R. 499; 34 Iv. T. (N. S.) 938. 
 
HOW FAK A FRAUDULENT TRANSFER IS VOID. 
 
 447 
 
 heirs,^ executors, ^ administrators,^ parties claiming under 
 
 IGetzler v. Saroni, i8 111. 511; 
 Cushwa V. Cushwa, 5 Md. 44; Dan- 
 zey V. Smith, 4 Tex. 411; Kimball v. 
 Baton, 8. N. H. 391; Jewell z/. Por- 
 ter, 31 N. H. 34; Jackson v. Garnsey, 
 16 Johns. 189; Ober v. Howard, ii 
 Mo. 425; Stewart v. Ackley, 52 Barb. 
 283; Dearman v. RadcliEEe, 5 Ala. 
 192; Reichert v. Castator, 5 Binn. 
 109; 6 Am. Dec. 402; 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 0. Laney, 2 Ind. 196; 
 McLaughlin v. McLaughlin, 16 Mo. 
 242; Lockerson v. Stillwell, 13 N. 
 J. Eq. 357; Anderson v. Rhodus, 12 
 Rich. Eq. 104; Gillespie v. Gilles- 
 pie, 2 Bibb. 89; Horner v. Zimmer- 
 man, 45 111. 14; Francis v. Wilkin- 
 son, 147 111. 370; 35 N. E. 150; 
 Robertson v. Sayre, 134 N. Y. 97; 
 31 N. E. 250; 30 Am. St. Rep. 627; 
 In re Hummel's estate, 161 Penn. 
 St. 215; 28 Atl. 1113; 34 W. N. C. 
 279. 
 
 2Dorsey v. Smithson, 6 H. & J. 
 61; Welsh V. Bekey, i 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! Bur- 
 ton V. Farinholdt, 86 N. C. 260. 
 Contra, ex parte Adams, 2 Red. 66. 
 
 SHawes 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, 42 Am. Dec. 169; Cocke v. 
 Bromley, 6 Munf. 184; Martin v. 
 Martin, i Vt. 91, 18 Am. Dec. 675; 
 Dunbar v. McEall, 9 Humph. 505; 
 Choteau v. Jones, 11 111. 301, 50 Am. 
 Dec. 460; Peaslee v. Barney, i Chip. 
 331, 6 Am. Dec. 7431 Bank v. Burke, 
 
 4 Blackf. 141; McLaughlin v. Mc- 
 Laughlin, 16 Mo. 242; Avery v. 
 Avery, 12 Tex. 54, 62 Am. Dec. 513; 
 Connell 0. Chandler, 13 Tex. 5, 62 
 Am. Dec. 545; Crosby v. De Grafien- 
 reid, 19 Geo. 290; Beale v. Hall, 22 
 Geo. 431; Winn v. Barnett, 31 Miss. 
 653; Gully V. Hull, 31 Miss. 20; 
 George v. Williamson, 26 Mo. 190, 
 
 72 Am. Dec. 203; Brown v. Finley, 
 18 Mo. 375; Jordan v. Penno, 13 
 Ark. 593 ; Lassiter v. Cole, 8 
 Humph. 621; Adams v. Broughton, 
 13 Ala. 731; Moore v. Minerva, 17 
 Tex. 20; Moody v. Fry, 3 Humph. 
 567; Dennison v. Ely, i Barb. 610; 
 Osborne v. Moss, 7 Johns. 161, 5 
 Am. Dec. 252; Harmon v. Harmon, 
 63 111. 512; Rodin V. Murphy, 10 
 Ala. 804; Rhein v. TuU, 35 N. C. 57; 
 White V. Russell, 79 111. 155; Hall 
 V. Callahan, 66 MO. 316; Crawford v. 
 Lehr, 20 Kans. 509; Beebe v. Saul- 
 ter, 87 111. 518; Davy v. Kelly, 66 
 Wis. 452, 29 N. W. 232; Gilbert v. 
 Stockman, 81 Wis. 602, 29 Am. St. 
 Rep. 922, 51 N. W. 1076, 52 N. W. 
 1045; Robertson v. Sayre, 134 N. Y. 
 37, 30 Am. St. Rep. 627, 31 N. E. 
 250. Contra, Buehler v. Glonin- 
 ger, 2 Watts, 226; Stewart v. Kear- 
 ney, 6 Watts, 453, 31 Am Dec. 482; 
 Williams v. Williams, 34 Penn. 312; 
 Freeman v. Burnham, 36 Conn. 
 469; Everett v. Read, 3 N. H. 55; 
 Kingsbury v. Wild, 3 N. H. 30; 
 Brownell v. Curtis, 10 Paige, 210; 
 Babcock v. Booth, 2 Hill, 181, 38 
 Am. Dec. 578; Caswell v. Caswell, 
 28 Me. 232; Morris v. Morris, s 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; Sul- 
 lice V. Gradenigo, 15 La. An. 582; 
 Hunt V. Butterworth, 21 Tex. 133, 
 
 73 Am. Dec. 233; Allen v. Allen's 
 
448 HOW FAR A FRAUDULENT TRANSFER IS VOID. 
 
 hiin,i and his agents,^ vendees and grantees.^ The receiver 
 
 Mower, 17 Vt. 61; Love v. Mickals, 
 II Ind. 227; McLane v. Jolinson, 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 the execu- 
 tors and administrators to impeach 
 a fraudulent conveyance when the 
 estate is insolvent is conferred by 
 statute in some states and several 
 of the above cases are upon those 
 statutes. In New York and Cali- 
 fornia the administrator represents 
 creditors as well as the estate and 
 can set aside a fraudulent convey- 
 ance made by intestate during his 
 lifetime. Hangen v. Hachemeister, 
 114 N. Y. 566, II Am. St. Rep. 691, 
 21 N. E. 1046; Ohm V. Superior 
 Court, 85 Cal. 545, 20 Am. St. Rep. 
 •245, 26 Pac. 244. But under the 
 ISTew York statute equity will not 
 assist an administrator to set aside 
 a conveyance executed by his in- 
 testate, but not delivered in his life- 
 time, because such a conveyance is 
 no obstacle or hindrance to the as- 
 sertion of any rights creditors may 
 have. Rosseau v. Bleau, 131 N. Y. 
 177, 27 Am,. St. Rep. 578, 30 N. E. 
 52. 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 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. 
 
 IMoseley v. Moseley, 15 N. Y. 
 334; Wright V. Wright, 2 Litt 8; 
 Roane v. Vidal,4Munf. 187; Neeley 
 V. Wood, 10 Yerg. 486; Douglass 
 V. Dunlap, 10 Ohio, 162; McClesky 
 V. Leadbetter, i Kelly, 551; Ellis v. 
 McBride, 27 Miss. 155; Zimmerman 
 V. Schoenfeldt, 6 T. & C. 142. 
 
 2Newson v. Douglass, 7 H. & J. 
 417, 17 Am. Dec. 316; Owen v. 
 Dixon, 17 Conn. 492. 
 
 SBull 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, 18 Am. Rep. 553; 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. El- 
 can, I Cold. 96; Lawton ». Gordon, 
 34 Cal. 36, 91 Am. Dec. 670; Fowler 
 V. Stoneum, 11 Tex. 478, 62 Am. 
 Dec, 490; Hubbs v. Brockwell, 3 
 Sneed, 574; Eddins v. Wilson, i 
 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, i A. K. Marsh. 
 208, 10 Am. Dec. 724; Lewis v. 
 Love, 2 B. Mon. 345, 38 Am. Dec. 
 161; Cox V. Jackson, 88 Mass. 108; 
 Wyman v- Brown, 50 Me. 139; New- 
 son V. Lycan, 3 J. J. Marsh. 440, 29 
 Am. Dec. 156; Elliott v. Horn, 10 
 Ala. 348, 44 Am. Dec. 488; Lewis v. 
 Caperton, 8 Gratt. 148; McGuire v. 
 Miller, 15 Ala. 394; Beall v. Wil- 
 liamson, 14 Ala. 55; Henderson v. 
 
HOW FAR A FRAUDULENT TRANSFER IS VOID. 449 
 
 of a debtor represents the creditors, and is generally per- 
 mitted to impeach his debtor's fraudulent transfer for their 
 benefit.^ A fraudulent receipt to a person who owes money 
 to the debtor is as binding as any other transfer.^ If the 
 property is transferred by a deed with covenant of warranty, 
 and the debtor subsequently purchases the property at a sale 
 under an execution against him, the title thus obtained in- 
 ures to the benefit of the fraudulent grantee, and the debtor^ 
 and parties purchasing from him with notice of the prior 
 transfer* are estopped by the covenant from denying or 
 resisting the title of the fraudulent grantee. But if after 
 
 Adm., i8 Ohio St. 234; Allen v. 
 Dickey, 50 Mo. i6i ; Howe v. Ways- 
 man, 12 Mo. 169, 49 Am. Dec. 126; 
 Hurley v. Oeler, 44 Iowa, 642. 
 
 IDunham v. Byrnes, 36 Minn. 
 106, 30 N. W. 402; Miller v. Mac- 
 kenzie, 29 N. J. Eq. 292; Bostwick 
 V. Menck,4o N. Y. 383. 
 
 The receiver "acquires no prop- 
 erty by succession to the rights of 
 the debtor, for the reason that the 
 transfer is valid as against the debt- 
 tor, and cannot be set aside by him 
 as the debtor's successor; no rights 
 other than those of the debtor can 
 be acquired. He does not acquire 
 the legal title to such property by 
 his appointment. That is confined 
 to property then owned by the deb- 
 tor and the fraudulent transferee of 
 property acquires a good title 
 thereto as against the debtor and all 
 other persons except the creditors 
 of the transferor; the only right of 
 the receiver is, therefore, as trus- 
 tee of the creditors. The latter 
 have the right to set aside the trans- 
 fer and to recover the property 
 from the fraudulent holder, and the 
 receiver is, by law, vested with the 
 rights of the creditors represented 
 by him in this respect. It is clear 
 that the right of the receiver, rep- 
 resenting the creditors and acting 
 in their behalf, is no greater than 
 
 that of the creditors." . . . . . 
 " Those having in their hands prop- 
 erty owned by a. judgment debtor 
 at the time of the appointment of 
 a receiver of his property must 
 account to the receiver therefor, 
 they have no diverse interests of 
 their own to protect. Not so as to 
 those who have acquired title good 
 as against the debtor and all others 
 except creditors. They have the 
 right to retain the property until 
 the prior right of creditors to divest 
 them of it is shown. This right of 
 creditors they have the right to liti- 
 gate in respect of such crfeditors. 
 
 It may happen that when a 
 receiver has been appointed ■ in 
 behalf of several creditors, one 
 may have estopped himself from 
 questioning the validity of a trans- 
 fer by the debtor. The receiver 
 could not set aside the transfer in 
 behalf of such a creditor, and could 
 not, therefore, recover in his be- 
 half, but only in behalf of those 
 not estopped. ' ' Bostwick v. Menck, 
 40 N. Y. 383, 386, 387- 
 
 2Sickman «. Lapsley; 13 S. & R. 
 224. 
 
 SDunbar v. McFall, 9 Humph. 
 505; Trempner v. Barton, 18 Ohio, 
 418; Gibbs V. Thayer, 60 Mass. 30; 
 Barton v. Morris, 15 Ohio, 408. 
 
 *Perry v. Calvert, 22 Mo. 361. 
 
450 HOW FAR A PKAUDULBNT TRANSFER IS VOID. 
 
 the making of the fraudulent conveyance, he makes a con- 
 veyance with a covenant of warranty, 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.^ 
 
 § 434. 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 quoe 
 contra leges et constitutiones vel contra hones mores sunt, 
 nullani' 'Dim habere indubitati juris est? 
 
 § 435. 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 
 to the debtor. The violation of such an agreement is no 
 fraud. Fraus non est fallere fallentem.'^ For the same 
 
 lArnold v. Hymes, s Fed. Rep. 650; Canton v. Dorchester, 62 Mass. 
 
 578- 525; Sweet V. Tinslar, 52 Barb. 271; 
 
 2SmitU V. Pollard, 4 B. Mon. 66. Stewart v. Iglehart, 7 G. & J. 132, 
 
 3Dig. Lib. 2, tit. 3, § 6. 28 Am. Dec. 202; Wright z/. Wright, 
 
 4Anon. Gary, 25; Gaylord v. 2 Litt. 8; Mulfordz^. , aHayw. 
 
 Couch, 3 Day, 223; Freeman v. 244; James z/. Bird, 8 Leigh, 510, 31 
 
 Sedgwick, 6 Gill. 28, 46 Am. Dec. Am. Dec. 668; Smith v. Elliott, i 
 
HOW FAR A FRAUDULENT TRANSFER IS VOID. 
 
 451 
 
 reason the trusts in a fraudulent deed cannot be enforced.^ 
 The grantor, however, may mg,intain an action to enforce 
 a vendor's lien for the purchase money, if the grantee does 
 not set up the fraud as a defense.^ 
 
 § 436. Relief when there is Fraud on Dehtor.— The rule that 
 a debtor is not entitled to any relief against a fraudulent 
 conveyance only applies when the parties are in pari 
 delicto. It is founded on principles of public policy for 
 
 Pat. & H. 307; HoUis 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, 52 Am. 
 Dec. 282;' Lee v. Lee, 19 Mo. 420; 
 Grider v. Graham, 4 Bibb. 70; Bald- 
 win V. Cawthorne, 19 Ves. 166; 
 Franklin v. Stagg, 22 Mo. 193; Mar- 
 tin V. Martin, 5 Bush 47; Roane v. 
 Vidal, 4 Munf. 187; Joyce v. Joyce, 
 5 Cal. 161; Jones v. Read, 3 Dana, 
 540; St. John V. Benedict, 6 Johns. 
 Ch. Ill; Baldwin v. Campfield, 8 
 N.J. Eq. 891; Marlatt v. Warwick, 
 19 N. J. Eq. 443; Lokerson v. Still- 
 well, 13 N. J. Eq. 357; Hershey v. 
 Whiting, 50 Penn. 240; Holliday v. 
 HoUiday, 10 Iowa, 200; Eyre v. 
 Eyre, 19 N. J. Eq. 42; Stephens v. 
 Harrow, 26 Iowa, 458; Smith v. Bo- 
 quet, 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 
 MacArthur, 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. Nickod'us, 45 Mich. 
 385, 8 N. W. 86; Hood v. Prelison, 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; Kassing v. Durand, 41 
 
 111. App. 93; Peterson v. Brown, 17 
 Nev. 172, 30 Pac. 697, 45 Am. Rep. 
 437; Farrell v. Duffy, 5 Tex. Civ. 
 App. 435, 27 S. W 20. 
 
 But in Carll v. Emery, 148 Mass. 
 32, 12 Am. St. R^p. 515, 18 N. E. 
 574, it is held that grantor may 
 compel a reconveyance if he aban- 
 dons his fraudulent purpose and 
 notifies the grantee of such aban- 
 donment. The court says: "It seems 
 clear that when a party who has 
 transferred property to delay or de- 
 fraud creditors abandons his fraudu- 
 lent purpose, apprising the other 
 party thereof, and -seeks to reinstate 
 himself in possession of his prop- 
 erty in order to pay his creditors, 
 he may do so. It cannot be that 
 the other party, who has been a 
 participant in the fraudulent trans- 
 action, should be able to hold the 
 property the possession of which 
 he had so acquired, and thus pre- 
 vent it from being devoted to its 
 legitimate uses." 
 
 It does not appear that the ends 
 of justice may not be just as well 
 subserved by the creditors setting 
 aside the transfer according to the 
 general practice, as by permitting 
 the debtor to do so for their bene- 
 fit, as in the above case. 
 
 IStewart v. Ackley, 52 Barb. 283; 
 Sweet V. Tinslar; 52 Barb. 271; 
 Murphy v. Hubert, 16 Penn. 50. 
 
 ^Chapman v. Callahan, 66 Mo. 
 299. 
 
452 HOW FAR A FRAUDULENT TRANSFER IS VOID. 
 
 purposes of justice, and can never be made the means of 
 sustaining an injustice. If tlie debtor, therefore, acts 
 under circumstances of oppression, imposition or undue in-. 
 fluence, 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 in delicto are not in 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 unbiased consent to the conveyance, and he is re- 
 lieved on the ground that the conveyance is not strictly a 
 valid conveyajice because his mind and will have not 
 sanctioned it. No man can be deemed a paHiceps 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. 
 
 § 437. Illustrations of the Doctrine. — This exception to 
 the general rule will be made plainer by a few illustra- 
 tions. If a man being weak of mind is induced to make a 
 conveyance by a false representation of a liability 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 misrepresentation.^ 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.^ Relief will be given 
 where the grantee occupies a relation of confidence towards 
 the debtor, who is a man of weak mind and in needy cir- 
 cumstances, and obtains a conveyance by the exercise of 
 his ascendency arising from confidence and dependence.^ 
 
 iPrewett v. Coopwood, 30 Miss. SDealty c. Murphy, 3 A. K. 
 
 369; Beale v. Hall, 22 Geo. 431. Marsh. 472; Poston v. Balch, 69 Mo. 
 
 ^Austin V. Winston, i H. & M. 115. 
 33, 3 Am. Dec. 583; Keane v. Kyne, 
 2 Mo. Ap. 317. 
 
HOW FAR A FRAUDULENT TRANSFER IS VOID. 453 
 
 So also if a feme covert is induced by fraudulent practices 
 of the grantee to unite with her husband in the convey- 
 ance of her own estate for the purpose of defrauding his 
 creditors by depriving them of a remedy against his in- 
 terest in it, she may have the transfer set aside.^ 
 
 § 438. Conveyance to Attorney.— If a debtor, being in 
 embarrassed circumstances^ or incompetent to manage his 
 affairs with prudence and discretion,^ 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 practised by means of that relation. If the 
 debtor, therefore, is a man of intelligence and large busi- 
 ness 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 transaction 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. 
 
 IStewart v. Iglehart, 7 G. & J. lant's title, as derived from her lius- 
 
 132, 28 Am. Dec. 202. band, is void at the instance of 
 
 In Stillwell V. Stillwell, 47 N. J. creditors, that fact did not prevent 
 
 Bq. 275, 24 Am. St. Rep. 408, 20 Atl. her from setting up in a court of 
 
 960, a husband conveyed to his equity that either her husband or 
 
 wife in order to defraud credit- someone else had got the title from 
 
 ors, and then she refused to her. To hold otherwise would be 
 
 execute a reconveyance to him. to lay down the doctrine that the 
 
 The husband then assisted one holder of one of these surrepti- 
 
 of the creditors to obtain • a de- tious titles was, with respect to it, 
 
 cree against the wife, without her put out of the protection of the law. 
 
 knowledge and without service of There is no such principle of law or 
 
 process upon her, setting aside the equity." 
 
 conveyance and directing the prop- SGoodenough v. Spencer, 2 T. 
 
 erty to be sold. The husband pur- and C. 509; Ford v. Harrington, 16 
 
 chased the property at the sale N. Y. 285. 
 
 made under the decree. The Chan- spreelove v. Cole, 41 Barb. 318. 
 
 eery Court of New Jersey, at her in- 4"We do not think, however, 
 
 stance, set the decree and sale aside, that under the circumstances there 
 
 the court saying: "Admitting, as should be an application of that 
 
 has been admitted, that the appel- rule of equity which denies relief 
 
454 HOW FAR A FRAUDULENT TRANSFER IS VOID. 
 
 §439. Where Debtor Acts Freely. — Where the debtor, 
 however, acts freely, he is not entitled to relief, although 
 he may not, in the forum of absolute justice, be quite so 
 bad as the grantee.^ Any attempt to inquire into the rela- 
 tive 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, more- 
 over, are slight, an attempt to measure their comparative 
 demerits by a moral standard would be a difficult and 
 speculative undertaking, and lead to metaphysical refine- 
 ments not necessary to the attainment of practical justice. 
 
 § 440. Difference in Mental Capacity not Sufficient.— Nor 
 
 does mere diflference 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 gra.des of 
 intellect of different men can be measured. The law there- 
 fore does not undertake to measure the size of men's un- 
 derstandings. It simply inquires whether he is possessed 
 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.'' 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 intelligent agents, and 
 only apply the rule where the parties are exactly equal in their 
 mental and moral attributes, the rule itself would be abro- 
 gated, for men are so differently constituted in their mental 
 
 to one party against another when to invoke the aid of the law to 
 
 both have been engaged in a fraud- enable him to retain that which he 
 
 ulent tranaction. The parties were has obtained through his fraudulent 
 
 not in pari delicto. One was legal artifices." Herrick v. Lynch, 150 
 
 adviser, the other client. The ad- 111. 283, 289, 37 N. E. 22; Baehr v. 
 
 vice of the former being adopted he Wolf, 59 111. 474. 
 procured title to the latter's inter- iRenfrew v. McDonald, 18N. Y. 
 
 est in valuable real estate. Equity Supr. 254; Fletcher v. Fletcher, 2 
 
 will not tolerate that an attorney MacArthur, 38; Trimble v. Doty, 
 
 may make use of his peculiar 16 Ohio St. 118. 
 power over his client to procure SSmith v. Elliott, i Pat. and H. 
 
 a contract which is illegal and 307. See O'Conner v. Ward, 60 
 
 contrary to public policy, and then Miss. 1036. 
 
HOW FAR A FRAUDULENT TRANSFER 19 VOID. 455 
 
 and moral endowments that no case would occur in wMch 
 the parties would be exactly equal. The law, therefore, in- 
 quires not as to the propriety or impropriety of the con- 
 veyance, but as to the grantor's capacity to make it, and 
 whether it was made freely with his full assent. 
 
 § 441. Certain Agreements Talid.— 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 cred- 
 itors and the success of the fraud are merely matters of 
 evidence.-^ 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 cannot be considered 
 fraudulent, for he has a right to shield his property from 
 all unlawful claims.^ 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 
 upon the payment of the purchase money, may be 
 enforced.* If the parties voluntarily rescind the fraudulent 
 conveyance, a subsequent arrangement between them in re- 
 gard to the same property will not be tainted by the pre- 
 vious fraud.^ 
 
 § 442. Rights 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 maintain 
 any rights or remedies founded on the unlawful thing done 
 
 iRlount V. Costen, 47 Geo. 534. Harris, 23 Gratt. 737; Cameron v. 
 
 SDearman v. Dearman, 4 Ala. Romille, 53 Tex. 238; Fletcher v. 
 
 521; Brady v. Ellison, 2 Hayw. 348; Fletcher, 2 MacArthur, 38. 
 
 Smith V. Bowen, 2 Hayw. 296; spluharty z/. Beatty, 4 W. Va. 514. 
 
 Baker v. Gilman, 52 Barb. 26; Boyd iParker v. Tiffany, 52 111. 286; 
 
 V. De La Montagnie, 73 N. V. 498, Matthews v. Buck, 43 Me. 265. See 
 
 29 Am. Rep. 197. Contra, Tantum section 435, ante, note, and sections 
 
 V. Miller, 11 N. J. Eq. 551; Harris v. 480, 481, post, and notes. 
 
456 HOW PAR A FRAUDULENT TRANSFER IS VOID. 
 
 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 transgres- 
 sion 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 consequence 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 some- 
 thing arising or produced by the fraudulent act or procure- 
 ment of the grantee alone, then he is entitled to favorable 
 consideration, and his action should be retained.^ If the 
 fraudulent transfer consists of a mortgage, the debtor may 
 file a bill to redeem the property from its operation.^ 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.^ 
 
 § 44:3. Kights of Grantee.— If the transfer is made to two 
 grantees, an agreement between them whereby one pur- 
 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.* 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.^ If the fraudu- 
 
 iClemens v. Clemens, 28 Wis. 242; Jones z/. Rahilly, 16 Minn. 320. 
 637, 9 Am. Rep. 520; Stillwell v. SGowan v. Gowan, 30 Mo. 472. 
 
 Stillwell, 47 N. J. Eq. 275, 24 Am. ^Waller v. Mills, 3 Dev. 515. 
 
 St. Rep. 408, 20 Atl. 960.. sproseus v. Mclntyre, 5 Barb. 
 
 SSmith^.Quartz Mining Co. . 14 Cal. 424. 
 
HOW FAR A FRAUDULENT TRANSFER IS VOID. 457 
 
 lent grantee executes the secret fraudulent trust under 
 wMch lie receives the transfer, one cestui que trust can noi 
 defeat the full execution of the trust, or appropriate the 
 exclusive benefit to himself, by relying upon the fraudu- 
 lent intent with which the transfer was made.^ Equity 
 will not decree a sale at the instance of one tenant in com- 
 mon when the land is incapable of partition, for the hazards 
 of an unsound title should remain with those who have 
 taken it.^ 
 
 § 44:4. 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 consid- 
 eration for a fraudulent transfer. There is a marked and 
 settled distinction between executory and executed con- 
 tracts of a fraudulent character. "Whatever the parties ta 
 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 exe- 
 cute the law refuses to compel the contractor to execute or 
 to pay damages for not executing. In both cases it leaves 
 the parties where it finds them.^ 
 
 ITurnerz/. Campbell, 3 Gratt. 77; Cal. 325; McCausland v. Ralston^ 
 
 s. c. I P. & H. 256. 12 Nev. 195, 28 Am. Rep. 781; Ham- 
 
 2Haydon v. Denslow, 27 Conn. ilton v. Scull, 25 Mo. 165, 69 Am. 
 
 335. Dec. 460; Penton v. Ham, 35 Mo.. 
 
 SNellis w. Clark, 4 Hill, 424; s. c. 20 409; Harwood z/. Knapper, 50 Mo. 
 
 Wend. 24; Smith v. Hubbs, 10 Me. 436; Goudy v. Gebhart, 10 Ohio St. 
 
 71; Johnson v. Morley, Hill & D. 262. Conir a, 'Pindley v. Cooley, I 
 Sup. 29; Niver v. Best, 10 Barb. 369; . Blackf. 262; Sherk v. Bndress, 3 
 
 Walker v. McConnico, 10 Yerg. 228; W. & S. 255; Telford v. Adams, 6- 
 
 Norris v. Norris, 9 Dana 317, 35 Watts, 429; Moore v. Thompson, 6- 
 
 Am. Dec. 138; Roden v. Murphy, Mo. 353; Dyer v. Homer, 39 Mass. 
 
 10 Ala. 804; Walton v. Bonham, 24 253; Conner v. Carpenter, 28 Vt. 
 
 Ala. 513; Harvin v. Weeks, 11 Rich. 237; Carpenter v. McClure, 39 Vt. 9,, 
 
 601; Welby V. Armstrong, 21 Ind. 91 Am. Dec. 370; Harvey ®. Varney, 
 
 489; Powell v. Inman, 8 Jones (N. 98 Mass. n8; Springer v. Drosh, 32 
 
 C.) 436, 82 Am; Dec. 426; Church v. Ind. 486; Handy v. Phila. & Read. 
 
 Muir, 33 N. J. 318; Merrick v. But- R. R. Co., i Phila. 31; O'Neil v. 
 
 ler, 2 Ivans. 163; Starin z/. Kelly, 36 Chandler, 42 Ind. 471; Harris z/.. 
 
 N. Y. Sup. 366; Gordon v. Clapp, Harris, 23 Gratt. 737; Clemens v. 
 
 113 Mass. 335;Ayer z-. Duncan, 50 Clemens, 28 Wis. 637,9 Am. Rep. 
 
458 HOW FAR A FRAUDULENT TRANSFER IS VOID. 
 
 § 445. lUastrations.— A fraudulent note, whether under 
 seal^ or not,^ can not be enforced, although the proof of 
 the fraud comes from the maker. If a note constitutes 
 the consideration for a fraudulent transfer, it will not be 
 rendered valid by including an additional honest considera- 
 tion, for the rule is that where one part of an entire con- 
 tract is void the whole is void.* The maker may also show 
 in an action upon such a note that the property has been 
 taken away by the grantor's creditors, * but such a defense 
 would not be good against a bona fide holder.^ A receiver 
 appointed in proceedings supplemental to an execution is 
 not, however, a bona fide purchaser for value.® A third 
 person who is innocent of the fraud may enforce a promise 
 made to him for a valuable consideration, although it grew 
 out of the fraudulent transaction.^ If a note and mortgage 
 are 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.* 
 
 § 446. Actions at Law by Grantee. — A fraudulent grantee 
 has a legal title which he may enforce in an action at law, 
 for the debtor and those claiming under him can not set 
 up the fraud to avoid the transfer.^ If the grantor becomes 
 
 520; Dietrich v. Koch, 35 Wis. 618; BGregory v. Harrington, 33 Vt. 
 
 Van Wy v. Clark, 50 Ind. 259; Davis 241. ' 
 
 jy. Mitchell, 34 Cal. 81; Butler v. BBriggs z;. Merrill, 58 Barb. 389. 
 
 Moore, 73 Me. 151, 40 Am. Rep. 7Moore tj. Meek, 20 Ind. 484. 
 
 ,348; Springfield Assn. v. Roll, 137 SHeath v. Van Cott, 9 Wis. 516. 
 
 111. 205, 31 Am. St. Rep. 358, 27 N. 9Cushwa v. Cushwa, 5 Md. 44; 
 
 E. 184; Williams v. Clink, 90 Mich. Anderson v. Dunn, 19 Ark. 650; 
 
 297, 30 Am. St. Rep. 443, 51 N. W. Ellis v. Higgins, 32 Me. 34; Mur- 
 
 453. phy V. Hubert, 16 Penn. 50; Brough- 
 
 iPowell z/. Inman, 7 Jones (N. ton w. Broughton. 4 Rich. 491 ; Jack- 
 
 C.) 28; Goudy V. Gebhart, i Ohio St. son v. Garnsey, 16 Johns. 189; Gif- 
 
 262. ford V. Ford, 5 Vt. 532; Starke v. 
 
 SAyer v. Duncan, 50 Cal. 325; Littlepage, 4 Rand. 368; Daniels v. 
 
 Goudy V. Gebhart, 1 Ohio St. 262; Fitch, 8 Penn. 495;' Epparson v. 
 
 Merrick v. Butler, 2 Lans. 103. Young, 8 Tex. 135; McClenny v. 
 
 3Niver v. Best, 10 Barb. 369. Floyd, 10 Tex. 159; Gillespie v. Gil- 
 
 4Dyerz/. Homer, 39 Mass. 253; lespie, 2 Bibb. 89; Goodwyn v. 
 
 Bailey v. Foster, 26 Mass. 139. Goodwyn, 20 Geo. 600. 
 
HOW FAR A FRAUDULENT TRANSFER IS VOID. 459 
 
 a tenant of the grantee, the grantee may maintain an 
 action to recover the possession.^ 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.^ 
 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 niortgage is fraudulent, 
 the mortgagee may enforce his legal right to the property 
 by an action at law.* A fraudulent grantee^ or mortgagee," 
 however, can not enforce any claim to or against the 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.^ A fraudu- 
 lent assignee of a mortgage may, however, file a bill in 
 equity to foreclose it.* 
 
 § 447. Grantee cau 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 sur- 
 render a note given as the consideration upon a reconvey- 
 ance of the property.* No action at law can be main- 
 tained upon a note given with a fraudulent mortgage,^" or 
 upon a covenant of warranty to recover damages when 
 
 iTufts ZJ. Du Bignon, 6i Geo. 322. Wearse v. Peirce, 41 Mass. 141; 
 
 2Rochelle v. Harrison, 8 Port. Demerritt v. Miles, 22 N. H. 523; 
 
 351. Westfall V. Jones, 23 Barb. 9; Jones 
 
 3Hoeser v. Kraeka, 29 Tex. 450; v. Comer, 5 Leigh, 350, Miller v. 
 
 Roberts v. Lund, 45 Vt. 82. Marckle, 21 111. 152; Brookover v. 
 
 ^Fitzgerald v. Forristal, 48 111. Hurst, I Met. (Ky.) 665; vide Hess 
 
 228; Stores V. Snow, 1 Root. 181; z/. Final, 32 Mich. 515; Van Wy v. 
 
 Gifford V. Ford, 5 Vt. 532; Williams Clark, 50 Ind. 259; Holt v. Creamer, 
 
 V. Williams, 34 Penn. 312; Bibb v. 34 N. J. Eq. 181. 
 
 Baker, 17 B. Mon. 292; Bowman v. 7Baldwin z/. . Cawthorne, 19 Ves. 
 
 McKleroy, 14 La. An. 587. i65. 
 
 BMason v. Baker, i A. K. Marsh. SGuest v. Barton, 32 N. J. Eq. 120. 
 
 208, 10 Am. Dec. 724; Caston v. 9Bryant v. MansBeld, 22 Me. 360; 
 
 Ballard, i Hill, 406; Gebhard v, Servis v. Nelson, 14 N. J. Eq. 94- 
 
 Satler, 40 Iowa, 152; vide Green- lOBrookover v. Hurst, i Met. (Ky.) 
 
 wood V. Coleman, 34 Ala. 150. 665. 
 
 6Shiveley z". Jones, 6B. Mon. 274; 
 
460 HOW FAR A FRAUDULENT TRANSFER IS VOID. 
 
 the property has been taken by the grantor's creditors.* 
 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.^ 
 
 § 448. 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.^ "When the reconveyance is. 
 in apparent execution of the fraudulent trust for the pur- 
 pose of a sale, the fraudulent grantee can not claim the 
 proceeds.* If the grantee is a minor and reconveys the 
 property to the grantor during his minority, he can not 
 avoid the deed of reconveyance upon attaining his major- 
 ity, for the act was one which he ought to have done.^ 
 One grantee is not responsible to anotjier for property which 
 he has returned to the debtor.** If the grantee, upon 
 reconveying the property, demands a certain price as a 
 compensation for his services, the reconveyance, as be- 
 tween the parties, constitutes a good consideration there- 
 for.^ If he takes a mortgage to secure this sum, he may 
 enforce it by foreclosure.^ 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 enforcement of the trust.^ 
 
 ISurlott V. Beddow, 3 Mon. 109; invested, both at law and in equity, 
 
 Rea V. Smith, 19 Wend. 293. with the title previously conveyed 
 
 ^Gebhard v. Satler, 40 Iowa 152. to his grantee. Such reconveyance 
 
 SDearman v. Radclifie, 5 Ala. is not within the condemnation of 
 
 192; Fargo V. Ladd, 6 Wis. 106; the statute of frauds, but vests in 
 
 White V. Drocaw, 14 Ohio St. 339; him a title which the courts will 
 
 Policy V. Johnson, Kans. , 23 recognize and protect precisely as 
 
 L. R. A. 258. they would a title derived from any 
 
 "While the fraudulent grantee is other source." Springfield Assn. v. 
 
 under no legal obligation to recon- Roll, 137 111. 205, 31 Am. St. Rep. 
 
 vey he is under a moral obligation 358, 27 N. E. 184. 
 to do so, and where, in fulfillment ^Fargo v. Ivadd, 6 Wis. io5. 
 
 of his moral obligation, he actually 6Starr v. Wright, 20 Ohio St. 97. 
 
 makes a reconveyance, such act SRiddle v. Lewis, 7 Bush. 193. 
 
 will be valid and binding on him, ^Maples v. Snyder, 2 T. & C. 318. 
 
 and if the rights of no innocent SNorton v. Pattee, 68 N. Y. 144. 
 
 third parties have intervened, the 9Fast v. McPherson, 98 111. 496. 
 
 fraudulent grantor will become re- 
 
HOW FAR A FRAUDULENT TRANSFER IS VOID. 
 
 461 
 
 § 449. 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 representatives. It is voidable only at the suit 
 of creditors, and if no creditor interposes and com- 
 plains, the transfer is as binding and effectual to pass the 
 title as if made with the best intents and for the most in- 
 nocent and commendable purposes.^ 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,^ a prior mort- 
 gagee,^ third parties who are not creditors,* a creditor of the 
 grantor's creditor,^ mere wrongdoers,^ the grantee's own ten- 
 ant^ or bailee,^ purchasers from the grantee so long as they 
 
 IHall V. Stryker, 9 Abb. Pr. 342, 
 s. c. 29 Barb. 105; Bobb ■ z/. Wood- 
 ward, 50 Mo. 95; Millington v. Hill, 
 47 Ark. 301, I S. W. 547. 
 
 2Steadinan v. Jones, 65 N. C. 388; 
 ■Grif6n v. Wardlaw, i Harp. Eq- 
 481; Moseley v. Moseley, 15 N. Y. 
 334; Cushwa V. Cushwa, 5 Md. 44. 
 
 SHodson V. Treat, 7 Wis. 263; 
 Stone V. Locke, 46 Me. 445; Stone v. 
 Bartlett, 46 Me. 438; Petrow v. Mer- 
 Tiwether, 53 111. 275; Reid v. Mul- 
 lins, 48 Mo. 344; Powers v. Russell, 
 30 Mass. 69; Crooker v. Holmes, 65 
 Me. 195, 20 Am. Rep. 687. 
 
 4Kid V. Mitchell, i N. & M. 334, 
 9 Am. Dec. 702; Wade v. Green, 3 
 Humpli. 547; Fowler 7/. Lee, 4Munf. 
 373; Shadbolt v. Bassett, 1 Lans. 
 121; McGuire v. Faber, 29 Penn. 
 436; Anderson v. Bradford, 5 J. J. 
 Marsh. 69; Clute v. Fitch, 25 Barb. 
 428; Van Etten v. Hurst, 6 Hill 311, 
 41 Am. Dec. 748; Jobnson 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 ». Beard, 14 
 Ala. 121; Bessey v. Wyndham, 6 A. 
 & E. (N. S.) 166; Schettler v. 
 
 Brunette, 7 Wis. 197; Hall j/. Snow- 
 hill, 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; Ran- 
 dall V. Phillips, 3 Mason, 378;' 
 Lenox ». Kotrebe, i Hemp. 251; 
 Simon v. Gibson, i 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. 
 
 BJones V. Hill, 9 Bush. 692. 
 
 6Worth V. Northam, 4 Ired. 102; 
 Thompson v. Moore, 36 Me. 47; The 
 Lion, I Sprague, 40; Costenbader v. 
 Shuman, 3 W. & S. 504; Reming- 
 ton v. Bailey, 13 Wis. 332; Pierce v. 
 Hasbrouck, 49 111. 26. 
 
 7Russell V. Fabyan, 27 N, H. 520, 
 s. c. 34 N. H. 218. 
 
 SHendricks v. Mount, 5 N. J. 
 738, 8 Am. Dec. 623; Fairbanks v. 
 Blackington, 26 Mass. 93. 
 
462 HOW FAR A FRAUDULENT TRANSFER IS VOID. 
 
 refuse to surrender the property,^ 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.^ If a debtor has a note due to him cancelled, and 
 takes a new note in the name of another, the latter can en- 
 force it.* 
 
 § 450. Creditors must have Legal Process.— It is com- 
 monly said that a fraudulent conveyance is void against 
 creditors, but this must be taken in a limited sense. The 
 law provides a mode for determining the rights of all 
 parties, and does not permit even a creditor to act as a 
 judge in his own case.^ Any other course would jeopardize 
 the order and harmony of society. A fraudulent convey- 
 ance, moreover, 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 enacted 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 wrong- 
 doers to the owner of the property. Prior to the transfer 
 they are liable to the debtor himself. After the transfer 
 they are liable to the grantee, because all the rights of the 
 debtor in relation to the property pass to him.^ 
 
 ILa Crosse R. R. Co. v. Seeger, v. Comm., i6 Penn. 387; Gilmore v. 
 
 4 Wis. 268; Sharp z/. Jones, 18 Ind. Bangs, 55 Geo. 403; Sullivan v. 
 
 314; Campbell v. Erie R. R. Co., 46 Bonesteel, 79 N. Y. 631; Wood v. 
 
 Barb. 540. Steele, 65 Ala. 436. 
 
 SAshurst's Appeal, 60 Penn. 290. ^Harding v. Colon, 123 Mass. 299. 
 
 SPickens v. Hathaway, 100 Mass. 5williford v. Conner, 1 Dev. 379. 
 
 247; Ogden V. Prentice, 33 Barb. ^Miller v. Koertge, 70 Tex. 162, 
 
 160; Morey v. Forsyth, Walk. Ch. 8 Am. St. Rep. 587, 7 S. W. 691; 
 
 465; Hamilton v. Gilbert, 2 Heisk. ^Miller v. Koertge, 70 Tex. 162, 
 
 680; Rohrer z/. Turrill, 4 Minn. 407; 8 Am. St. Rep. 587, 7 S. W. 691; 
 
 Frenzel v. Miller, 37 Ind. i; Stoner Zuver v. Clark, 104 Penn. St. 222. 
 
HOW FAR A FRAUDULENT TRANSFER IS VOID. 463 
 
 § 451. Meaning of the Expression that a Fraudulent Trans- 
 fer is Yoid. — 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, not- 
 withstanding the transfer, avail themselves of all the 
 remedies for collecting their debts out of the property or 
 its avails which the law has provided in favor of creditors, 
 and that in pursuing those remedies they may treat the 
 property as though the transfer had not been made, that is, 
 as the property of the debtor. The 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 prop- 
 erty 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 un- 
 lawful interference equally with any other person.^ 
 
 § 452. The Legal Process must be Valid.— 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 
 
 iWilliford v. Conner, i Dev. 379; Pla. 283; Pennington v. Woodall, 
 
 Hilzeim v. Drane, 18 Miss. 556; 17 Ala. 685; Graser v. Steelwagon, 
 
 Owen V. Dixon, 17 Conn. 492; 25 N. Y. 315: Eyrick v. Hetrick, 13 
 
 McGee v. Campbell, 7 "Watts, 545, 32 Penn. 488; Andrews v. Durant, 18 
 
 Am. Dec. 783; Dorsey v. Smithson, N. Y. 496; Whitfield v. Whitfield, 
 
 6 H. & J. 61; Barton v, Vanheythuy- 40 Miss. 352; Green v. Kornegay, 4 
 
 sen, II Hare, 126; s. c. 18 Jur. 344; Jones (N. C.) 66, 67 Am. Dec. 261; 
 
 Osborne v. Moss, 7 Johns. 161, 5 Miller v. Koertge, 70 Tex. 162, 8 
 
 Am. Dec. 252; Brown v. Gilmore, 16 Am. St. Rep. 587, 7 S. W. 691. 
 How. Pr. 527; Carter v. Bennett, 4 
 
464 HOW FAR A FRAUDULENT TRANSFER IS VOID. 
 
 him.^ In an action against liim upon a chose in action, he 
 can not show that an assignment of it is fraudulent.^ 
 If he is sued for the conversion of a note, he can not 
 impeach a transfer thereof, although he holds a judg- 
 ment.^ Before he can impeach the transfer he must have 
 an execution, attachment, or some other legal process 
 which authorizes the seizure of the property.* This pro- 
 cess may be a warrant of distress,^ or an attachment,^ as 
 well as an execution. The process, however, must be 
 valid, and all the steps subsequent to the seizure which 
 are prescribed by law for the 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.''' Consequently the 
 title of the grantee is good against a void attachment,^ or 
 an attachment which is not returned at the return term," 
 or a levy on a void judgment,'" or a void levy,'' or a levy 
 after the return day of the writ,'^ or out of the officer's 
 
 IDorsey v. Smithson, 6 H. & J. 70wen v. Dixon, 17 Conn. 92; 
 
 •61; Andrews v. Durant, 18 N. Y. Andrews v. Marshall, 43 Me. 272; 
 
 496; Barton v. Vanheythuysen, 11 s. c. 48 Me. 26; Eaton v. Cooper, 29 
 
 Hare, 126; s. c. 18 Jur. 344; Eslow Vt. 444; Wooley v. Edson, 35 Vt. 
 
 V. Mitchell, 26 Mich. 500. 214; vide Daggett v. Adams, i Me. 
 
 sogden V. Prentice, 33 Barb. 160. 198; Johnston v. Harvey, 2 Penna. 
 
 3Chickering v. Raymond, 15 111. 82, 21 Am. Dec. 426; Howland v. 
 
 362. Ralph, 3 Johns. 20. 
 
 ^Andrews ». Durant, 18 N. Y. SHalsey v. Christie, 21 Wend. 9; 
 
 496, Rinchey v. Stryker, 26 How. Pr. Zimmerman v. Lamb, 7 Minn. 421; 
 
 75; 28 N. Y. 45, 84 Am. Dec. 324; Wanamaker v. Bowes, 36 Md. 42; 
 
 Schlussell V. Willett, 34 Barb. 615; Lyon v. Yates, 52 Barb. 237; Millar 
 
 s. c. 12 Abb. Pr. 397; s. c. 22 How. v. Babcock, 29 Mich. 526. 
 
 Pr. 15; Tiffany w. Warren, 37 Barb. SRussz/. Butterfield, 6oMass. 242. 
 
 571; s. c. 24 How. Pr. 293. lOBean v. Loftus, 48 Wis. 371. 
 
 BAUen V. Camp, i Mon. 231, 15 ncleaveland v. Deming, 2 Vt. 534; 
 
 Am. Dec. 109; Frost v. Mott, 34 N. Barley v. Tipton, 29 Mo. 206; Rus- 
 
 Y. 253; Rinchey v. Stryker, 26 How. sell v. Dyer, 40 N. H. 173; Davis v. 
 
 Pr. 75, 28 N. Y. 45, 84 Am. Dec. 324. Ranson, 26 111. 100; Candler v. 
 
 Contra,:Pnshey zi. Thayer, 25 Wend. Fisher, 11 Md. 332; Duryee v. Bots- 
 
 396. ford, 31 N. Y. Supr. 317. 
 
 6Frost V. Mott, 34 N. Y. 253; issheerer v. Lautzerheizer, 6 
 
 Ward V. McKenzie, 33 Tex. 297; Watts, 543. 
 Morris v. House, 32 Tex. 492. 
 
HOW FAR A FRAUDULENT TRANSFER IS VOID. 465 
 
 bailiwick,^ or a purchaser under a void judgment,^ or a 
 landlord wlio distrains before tlie rent is due,* or a fraudu- 
 lent judgment,* or a judgment which has been satisfied.^ 
 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.® 
 
 § 453. 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.'' If the property is taken upon an attachment, 
 there must be proof not only of the regularity of the attach- 
 ment,* but of the demand of the creditor at whose instance 
 the attachment was issued.^ This is necessary in order to 
 establish a right to seize the property. It is not necessary 
 to prove the entire debt upon which the attachment issued,^" 
 or do more than show a prima facie right to issue the 
 attachment without establishing the amount due.^^ The 
 
 IMcGee v. Campbell, 7 Watts, 22; Reed v. Blades, 5 Taunt, 212; 
 
 545, 32 Am. Dec. 783; Mangum v. White v. Morris, 11 C. B. 1015; 
 
 Hamlet, 8 Ired. 44. Glave v. Wentworth, 6 Q. B. 173; 
 
 SWarren v. Hall, 6 Dana, 450; Ogden v. Hesketh, 2 Car. & K. 772; 
 
 Carter z/. Bennett, 4 Fla. 283; Hemp- Ackworth v. Kempe, i Doug. 40; 
 
 hill V. Hemphill, 34 Miss. 68. Luke v. Billers, i Ld. Raym. 733; 
 
 3Evans V. Herring, 27 N. J. 243. M'Gowen v. Hoy, 5 Litt. 239; Cook 
 
 ^Wilhelmi v. Leonard, 13 Iowa, v. Miller, 11 111. 610. 
 
 330; Hackett z/. Manlove, 14 Cal. 85. SNoble v. Holmes, 5 Hill, 194; 
 
 SChilea v. Bernard, 3 Dana, 95; Thornburg v. Hand, 7 Cal. 554; 
 
 Jackson v. Cadwell, i Cow. 622; Keys v. Grannis, 3 Nev. 548. 
 
 Shinkle v. Letcher, 47 111. 217. »Sanford v. Wiggin, 14 N. H. 441; 
 
 fiCitizens' Bank v. Bowen, 21 Damon v. Bryant, 19 Mass. 411; 
 
 Kans. 354. Clute v. Fitch, 25 Barb. 428; Maley 
 
 7High V. Wilson, 2 Johns. 46; ■"■ Barrett, 2 Sneed, 501; Currier v. 
 
 Wright z/. Crockett, 7 Mo. 125; Dam- Ford, 26 111. 488; Jones v. Lake, 2 
 
 eron v. Williams, 7 Mo. 138; Eaton Wis. 210; Cook v. Hopper, 23 Mich. 
 
 V. White, 2 Wis. 292; Paige v. sm Mamlock v. White, 20 Cal. 
 
 O'Neal, 12 Cal. 483; Bickerstaff v. 598; Cook v. Miller, 11 111. 610. 
 
 Doub, 19 Cal. 109, 79 Am. Dec. 204; WWalker v. Lovell, 28 N. H. 136, 
 
 Martin v. Podger, 2 W. Bl. 701; s. c. 61 Am. Dec. 605. 
 
 5 Burr, 2631 ; Hoffman v. Pitt, 5 Esp. "Fuller v. Sears, 5 Vt. 527. 
 
466 HOW PAR A FRAUDULENT TRANSFER IS VOID. 
 
 parties will not be liable to the grantee if the attachment is 
 merely defeated by a plea of set-off^ A collusive demand^ 
 created merely for the purpose of attacking the transfer, 
 can not prevail against it.^ 
 
 § 454. 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 purchaser the 
 creditor obtains no rights, and in the capacity of creditor 
 he can only appropriate the property towards the satisfac- 
 tion of his demands by virtue of some legal process.^ With- 
 out a lien upon the property by virtue of some process, a 
 creditor has no right to intervene in a suit.* 
 
 § 455. Batiflcation 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. Preterea illud sciendum est, eurn qui consentien- 
 tibus creditoribus a fraudatore vel emit vel stipulatus est vel 
 quid aliud contraxit, non videri in fraudem creditorum 
 fecisse, neino enim mdetur fraudare eos qui sciunt et con- 
 sentiunt.^ 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.^ A party who loans money to the debtor do enable 
 
 ■ IGate^ V. Gates, 15 Mass. 310. 7 Geo. 275; Pratt v. Cox, 22 Gratt. 
 
 2Esty V. Long, 41 N. H. 103. 330. 
 
 SHaines v. Campbell, 8 Wis. 187; *Horn v. Volcano Water Co., 13 
 
 Fox V. Willis, I Mich. 321; s. c. Cal. 62, 73 Am. Dec. 569; Graser f . 
 
 Walk. Ch. 535; Grimsley v. Steelwagon, 25 N. Y. 315; Williams 
 
 Hooker, 3 Jones Eq. 4> 67 Am. Dec. v. Bizzell, 11 Ark. 718; Coxz;. Fraley, 
 
 227; Barton v. Vanheythusen, 11 26 Ark. 20; Rhodes v. Cousins, 6 
 
 Hare, 126; s. c. 18 Jur. 344; Tate v. Rand. 188, 18 Am. Dec. 718. 
 Liggatt, 2 Leigh, 84; Jones v. Ra- BDig. Lib. 42, tit. 9, § 9. 
 
 hilly, 16 Minn. 320; Judge v. Vogel, SphilHps v. Wooster, 36 N. Y. 
 
 38 Mich. 569. Contra, Frost v. 412; s. c. 3 Abb. Pr. (N. S.) 475; 
 
 Goddard, 25 Me. 414; Woodward v. French v. Mehan, 56 Penn. 286. 
 Solomon, 7 Geo. 246; Lee v. Brown, 
 
HOW FAR A FRAtTDULENT TRANSFER IS VOID. 467 
 
 him to buy the property can not impeach the conveyance if 
 he knows that the property is to be conveyed to another.^ 
 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,^ especially when he is an active participant 
 in the fraud.^ Volenti non fit injuria. If he is a party 
 to the deed he can not impeach it.* A trustee who is also 
 a creditor is estopped from assailing the deed under which 
 he acts.^ If a creditor is estopped, the estoppel will ex- 
 tend to a party who purchases under his judgment." 
 
 § 456. 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- 
 tion, he must have notice or knowledge of the facts which 
 constitute the fraud.^ If he has, however, been guilty of 
 negligence in availing himself of information within his 
 reach, constructive notice may be imputed to him.^ Mere 
 notice without any action on the part of the creditor,^ or 
 mere acquiescence by taking no present measures to inter- 
 fere with the transfer,^" 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 
 
 iThompson v. Thompson, 82 eSmith v. Espey, 9 N. J. Eq. 160; 
 
 Penn. 378. Sharpe v. Davis, 76 Ind. 17. 
 
 SOliver v. King, 8 De G. M. & 7Clarke v. Rowling, Hill & D. 
 G. 110, s. c. 55 Eng. L. & Eq. 312, Sup. 105; Baldwin v. Tuttle, 23 
 s. c. 25 Iv. J. Ch. 427; s. c. 2 Jur. (N. Iowa, 66; Foulkz'. McFarlane, I W. 
 S.) 312, s. c. I Jur. (N. S.) 1067; & S. 297, 37 Am. Dec. 467; Van 
 Pell V. Tredwell, 5 Wend. 661; Nest z/. Yoe, i Sandf. Ch. 4; Crutch- 
 Baker ®. Lyman, 53 Geo. 339; field v. Hudson, 23 Ala. 393. 
 Schpley v. Worcester, 6 T. & C. 574; ' ^Scott v. Edes, 3 Minn. 377; 
 Sharpe ». Davis, 76 Ind. 17. Contra, Lane v. Lutz, 1 Keyes, 203; s. c. 3 
 Waterhouse v. Benton, 5 Day, 136. Abb. Ap. 19. 
 
 SSmith V. Espey, 9 N. J. Eq. 160. 9Derry Bank v. Davis, 44 N. H. 
 
 4Schenck v. Hart, 32 N. J. Eq. 548; Cole v. Tyler, 65 N. Y. 73. 
 
 774- 
 
 lOKnauth v. Bassett, 34 Barb. 31; 
 
 eStrong V. Willis, 3 Pla. 124, 52 Jenness v. Berry, 17 N. H. 549; 
 Am. Dec. 364; Marshall v. Morris, Annin v. Annin, 24 N. J. Eq. 184. 
 16 Geo. 368. 
 
468 HOW FAR A FRAUDULENT TRANSFER IS VOID. 
 
 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.-^ 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.^ 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.* The confirmation need not be 
 direct and express, but may be implied from the manner 
 in which the parties deal with the property.* Each credit- 
 or has the right to elect for himself whether he will con- 
 firm the transfer or not, and can not be prejudiced by the 
 acts of others.^ 
 
 § 457. Express Agreement. — If a creditor enters into a 
 contract with the debtor and grantee whereby he affirms 
 the validity of the conveyance, he can not afterwards im- 
 peach it.^ He will also be estopped if he joins in a declar- 
 ation of a trust made by the grantee to secure him, for he 
 thereby recognizes the validity of the transfer.'' But if the 
 
 iHayes v. Heidelberg, 9 Penn. 95; Millington v. Hill, 47 Ark. 309, 
 
 203- I S. W. 547; Zuver v. Clark, 104 
 
 Sjenness v. Berry, 17 N. H. 549. Penn. St. 222; Hathaway v. Brown, 
 
 3jenness v. Berry, 17 N. H. 549; 22 Minn. 214. 
 Lane v. Lutz, i Keyes, 203; s. c. 3 ^Butler v. O'Brien, 5 Ala. 316. 
 
 Abb. Ap. 19; Johns v. Bolton, 12 BM'Allister v. Marshall, 6 Binn, 
 
 Penn. 339; Dingley v. Robinson, 5 338, 6 Am. Dec. 458, Litchfield v. 
 
 Me. 127; Seymour v. Lewis, 13 N.J. Pelton, 6 Barb. 187; Geisse v. Beall 
 
 Eq. 439. 78 Am. Dec. 108; Tate v. 3 Wis. 367. 
 
 Liggatt, 2 Leigh, 84; Okie v. Kelly, BTate v. Liggatt, 2 Leigh, 84; 
 
 12 Penn. 323; Irwiu v. Longworth, Lane v. Lutz, i Keyes, 203; s. c. 3 
 
 20 Ohio, 581; Renick v. Bank, 8 Abb. Ap. ig. 
 
 Ohio 529; Myers w. Leinster, 7 Ired. Vjrwin v. Longworthy, 20 Ohio, 
 
 Eq. 146; Bobb v. Woodward, 50 Mo. 581. 
 
HOW FAR A FRAUDULENT TRANSFER IS VOID. 469 
 
 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.^ If, with fall 
 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 as- 
 signment and estops him from assailing it.® But if goods 
 are obtained from him under false pretenses and then 
 fraudulently transferred to another, an agreement with 
 the fraudulent grantee to waive the false pretenses does 
 not prevent an action to vacate the fraudulent sale.-'' 
 
 § 458. 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 pro- 
 ceeds 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.* 
 Therefore if, for part payment of his debts, 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 considera- 
 tion, he will be held to confirm the transfer.'' He will be 
 equally estopped, although he obtaihs a part of the pro- 
 ceeds under proceedings supplemental to an execution.* 
 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.^ If he 
 
 iKnapp V. White, 40 Wis. 143. BButler v. O'Brien, 5 Ala. 316. 
 
 SRapalee v. Stewart, 27 N. Y. BLemay v. Bibeau, 2 Minn. 291. 
 
 310; Bull V. Loveland, 27 Mass. 9; 7Adlum v. Yard, i Rawle, 163, 18 
 
 Fiske V. Carr, 20 Me. 301; Jones v. Am. Dec. 608; Lanahan v. Latrobe, 
 
 Dougherty, 10 Geo. 273; Burrows v. 7 Md. 268; Scott v. Edes, 3 Minn. 
 
 Alter, 7 Mo. 424; Geisse v. Beall, 2 377; Richards v. White, 7 Minn. 
 
 Wis. 367; ReifE v. Eshleman, 52 345; Whitney v. Freeland, 26 Miss. 
 
 Md. 5%2;vide Hurd v. Silsbee, 10 481; Gutzweiler ». Lackman, 23 Mo. 
 
 N. H. 108, 34 Am. Dec. 142. 168; Moale v. Buchanan, 11 G. & 
 
 SDingley v. Robinson, 5 Me. 1^7. J. 314; vide Vose v. Holcomb, 31 
 
 *Hathaway v. Brown, 22 Minn. Me. 407; Crutchfield v. Hudson, 23 
 
 214. Ala. 393. 
 
470 HOW FAR A FRAUDULENT TRANSFER IS VOID. 
 
 agrees not to assail tlie assignment if a cejtain 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.^ 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,^ 
 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.' 
 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.* 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.' 
 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.« 
 
 § 469. Creditors Must Have Knowledge. — A creditor can 
 not consistently with reason be deemed to confirm a trans- 
 fer by receiving the proceeds unless he knows that they are 
 the proceeds and that the transfer is fraudulent, but if he 
 retains the proceeds and uses them as his own after he 
 acquires such knowledge, the same consequences result as 
 if he acted on previous information.' 
 
 § 460. No Confirmation Without Consideration. — A con- 
 firmation must be founded upon a valuable consideration, 
 and if there is no such consideration, a creditor is not pre- 
 cluded from impeaching a transfer.^ A mere provision in 
 
 IRichards I. White, 7 Minn. 345. Johns ». Bolton, 12 Penn. 339. 
 
 SFurness v. Ewing, 2 Penn. 479. 60kie v. Kelly, 12 Penn. 323; 
 
 SFurness v. Ewing, 2 Penn. 479. Johns v. Bolton, 12 Penn. 339. 
 
 See section 326, ante, note. 6Kilby v. Haggin, 3 J. J. Marsh. 
 
 4Renick v. Bank, 8 Ohio, 529, 42 208. 
 
 Am. Dec. 203; Seymour v. Lewis, 7Butler v. O'Brien, 5 Ala. 316. 
 
 13 N. J. Eq. 439. 78 Am. Dec. 108; SHayes z/. Heidelberg, 9 Penn. 203 
 
HOW FAR A FRAUDULENT TRANSFER IS VOID. 471 
 
 an assignment in favor of a creditor does not of itself pre- 
 vent him from assailing it, for an assignment when 
 executed must bind all or none of the creditors.^ Merely- 
 laying an attachment in the hands of the grantee does not 
 confirm the transfer.^ The mere fact that a receiver 
 appointed ih 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 transfer, 
 or estop the judgment creditor from levying on the prop- 
 erty.^ A party who bids at a sale under an execution issued 
 against the grantee is not estopped from impeaching the 
 transfer.* If a creditor accepts a part of the property which 
 is subsequently taken from him, he may assail the trans- 
 fer.^ 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 arrangement.^ If a debtor 
 sells his goods in consideration of an annuity payable to his 
 • wife and a policy of insurance, a creditor who accepts of 
 the policy as a security for his debt will not be estopped 
 from attempting to have the annuity appropriated to the 
 satisfaction of his demand.^ 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.* 
 
 § 461. 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 
 prosecute their legal-rights. Such a trust must be good as . 
 to all or void as to all. From its very nature it is entire, 
 
 ISmith V. Howard, 20 How. Pr. 4Wade v. Saunders, 70 N. C. 270. 
 
 121; O'Neil V. Salmon, 25 How. Pr. ^Lee v. Hunter, i Paige, 519. 
 
 246. ^Hayes v. Heidelberger, 9 Penn. 
 
 2M'Kee v. Gilchrist, 3 Watts. 203. ^ 
 
 230; Graver v. Miller, 65 Pfenn. 456; 7Prencli v. French, 6 De G. M. & 
 
 vide Bishop v. Catlin, 28 Vt. 71; G. 95; s. c. 25 L. J. Ch. 612. 
 
 Woodward v. Wyman, 53 Vt. 645. sstout v. Stout, 77 ^nd. 537. 
 
 SBriggs V. Merrill, 58 Barb. 389. 
 
4V2 HOW FAR A FRAUDULENT TRANSFER IS VOID. 
 
 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.^ 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.^ 
 
 
 
 § 462. 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 between 
 him and his grantee though voidable as to existing credit- 
 ors, can never claim that the conveyance is fraudulent and 
 void as to him on account of such indebtedness.^ 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 im- 
 peaching it although the fraud is disclosed to him at the , 
 time when he executes the bond.* If an assignment is as- 
 sented to by all the creditors it can not be attacked by 
 subsequent creditors, for the former have the right to elect 
 to take the provision made for them, although the assign- 
 ment is fraudulent, and have a prior equity to be paid out 
 of the property assigned.^ 
 
 § 463. 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 
 
 IHayes v. Heidelberg, 9 Penn. sey v. Snedecor, 60 Ala. 192; Her- 
 
 203; Insurance Co. v. Wallis, 23 Md. ring v. Richards, 3 Fed. Rep. 439; 
 
 173. s. c. I McCreary, 570; Sheppard v. 
 
 SHayes v. Heidelberg, 9 Penn. Thomas, 24 Kans. 780; Sledge v. 
 
 203; vide McWhorter v. Huling, 3 Obenchain, 58 Miss. 670. 
 » Dana, 348. ^Martin v. Walker, 19 N. Y. 
 
 SBaker v. Oilman, 52 Barb. 26; Supr. 46. 
 Chrisman v. Graham, 51 Tex. 454; BAmes v. Blunt, 5 Paige, 13; 
 
 Monroe v. Smith, 79 Penn. 459; Therasson v. Hickock, 37 Vt. 454; 
 
 Kane v. Roberts, 40 Md. 590; Kirk- Ogden e. Prentice, 33 Barb. 160. 
 
HOW FAR A FRAUDULENT TRANSFER IS VOID. 473 
 
 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.^ 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.^ 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.^ , 
 
 § 464. 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 
 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.^ 
 
 § 465. Estoppel from Conduct. — If a creditor signs a 
 composition agreement and a receipt for the money, he can 
 not assail a purchase by another who buys upon the faith 
 
 ipoulk V. M'Farlane, i W. & S. 30 Am. St. Rep. 862, 17 S. W. 1030; 
 
 297, 37 Am. Dec. 467. Terry v. Hunger, 121 N. Y. 161, i8- 
 
 ^Baldwin v. Tuttle, 23 Iowa, 66. Am. St. Rep. 103, 24 N. E. 272. 
 
 3Van Nest v. Yoe, i Sandf. Ch. Bi^emay v. Bibeau, 2 Minn. 291; 
 
 4; Crutchfield v. Hudson, 23 Ala. Scott v. Edes, 3 Minn. 377; Butler 
 
 393. V. O'Brien, 5 Ala. 316; in re Wilson, 
 
 ^Ewing V. Cook, 85 Tenn. 33*2, 4 4 Penn. 430; Wills v. Munro, citedi 
 
 Am. St. Rep. 765, 3 S. W. 507; 43 Barb. 584. 
 O'Bryan v. Glenn, 91 Tenn. 106, 
 
474 HOW FAR A FRAUDULENT TRANSFER IS VOID. 
 
 of the agreement and to enable the debtor to settle with 
 his creditors, although the money was not paid.^ 
 
 § 466. 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.^ 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.* If he takes 
 ■the property under an execution, he can not also garnish 
 -the grantee.^ But a mere levy on the property will not 
 prevent the creditor from afterwards treating the transfer 
 as valid.^ 
 
 § 467. 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.^ 
 
 § 468. Title in Debtor. — The theory of the law is that a 
 fraudulent transfer is void as against creditors.^ 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" or execution,^" and sell it as his prop- 
 erty. 
 
 IKuhn V. Weil, 73 Mo. 213. spiatt v. Wheeler, 72 Mass. 520; 
 
 2Ewing V. Cook, 85 Tenn. 332, 4 Angier v. Ash, 26 N. H. 99. 
 
 Am. St. Rep. 765, 3 S. W. 507; locampbell v. Jones, 25 Minn. 
 
 O'Bryan v. Glenn, 91 Tenn. 106, 30 155; Wyman v. Richardson, 62 Me. 
 
 Am. St. Rep. 862, 17 S. W. 1030; 293; Scully v. Keams, 14 Iia. An. 
 
 Terry v. Munger, 121 N. Y. 161, 18 436; Gleises v. McHatton, 14 La. 
 
 Am. St. Rep. 103, 24 N. E. '272. An. 560; Hager v. Shindler, 29 
 
 SGeisse v. Beall, 3 Wis. 367. Cal. 47; Austin v. Bell, 20 Johns. 
 
 ^Bradford v. Beyer, 17 Ohio St. 442, 11 Am. Dec. 297; Chautauqua 
 
 588. County Bank v. Risley, 19 N. Y. 
 
 6Clapp V. Rogers, 38 N. H. 435. 369, 75 Am. Dec. 347; Lowry v. Orr, 
 
 6U. S. V. Poole, 5 Fed. Rep. 412. 6 111. 70, Marston v. Marston, 54 
 
 7Geisse v. Beall, 3 Wis. 367; Me. 476; Lane v. Sparks, 75 Ind. 
 
 Jones V. Dougherty, 10 Geo. 273. 278." 
 
 SGooch's Case, 5 Co. 60. See 
 chapter 22, post. 
 
HOW PAE A FRAUDULENT TRANSFER IS VOID. 4V5 
 
 § 469. Lien of Judgment.— If the creditors obtain judg- 
 ments 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.^ If the debtor 
 becomes bankrupt after the rendition of a judgment against 
 him, the lien is valid as against his assignee.^ The lien of 
 a 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.* 
 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.* 
 
 § 170. 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.* The grantee's assignee in bankruptcy has merely 
 
 iM'Kee v. Gilchrist, 3 Watts, Bank, 93 111. 396; U. S. v. Griswold, 
 
 230; Slattery v. Jones, 96 Mo. 216, 9 8 Fed. Rep. 556. 
 Am. St. Rep. 344, 8 S. W. 554; San- 2 Codwise v. Gelston, 10 Johns, 
 
 ders V. Wagonseller, 19 Penn. 248; 607; Wooten v. Clark, 23 Miss. 75; 
 
 Beekman's Appeal, 38 Penn. 385; Davis v. Lumpkin, 57 Miss. 506; in 
 
 HofiEman's Appeal, 44 Penn. 95; re Beadle, 5 Saw. 351; Johnson v. 
 
 Miner v. Warner, 2 Grant, 448; s. c. Rogers, 15 N. B. R. i. Contra, in re 
 
 2 Phiia. 124; Jacoby's Appeal, 67 Estes & Carter, 3 Fed. Rep. 134; s. 
 
 Penn. 434; Manhattan Co. v. Evert- c. 5 Fed. Rep. 60. 
 son, 6 Paige, 457; Morss v. Purvis, SHenderson v. Hunton, 26 Gratt. 
 
 5 T. & C. 140; Eastman v. Schettler, 926. 
 
 13 Wis. 324; Chautauqua County ^Smith v. Inglis, 2 Oregon, 43. 
 
 Bank v. Risley, 19 N. Y. 369, 75 Am. S^ennard's Appeal, Penn., 2 
 
 Dec. 347; Hubbs v. Bancroft, 4 Ind. Cent. 840. 
 
 388. Contra, Miller v. Sherry, 2 ^Haymaker's Appeal, 53 Penn. 
 
 Wall. 237; Lyon v. Robbins, 46 111. 306; Hoke v. Henderson, 3 Dev. 12. 
 276; Rappeleye v. International 
 
476 HOW FAR A FRAUDULENT TRANSFER IS VOID. 
 
 a defeasible title, subject to be defeated by the creditors 
 of tbe grantor.^ But a sale under au execution against tlie 
 grantee will pass a good title as against the debtor.^ If 
 the creditors of the grantors seize^ or sell the property 
 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 oflScer 
 acting under an execution against the grantor.^ An 
 assignee claiming under a fraudulent assignment made by 
 a firm does not represent the partnership creditors and 
 can not interpose in their behalf to prevent the property 
 from being taken upon a judgment against one of the part- 
 ners for a separate debt.^ 
 
 §471. 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.^ 
 
 iPratt V. Wheeler, 72 Mass. 520. Jones t/. Crawford, i McMullan,376; 
 
 2Robinsoii V. Monjoy, 7 N.J. 173; Russell v. Dyer, 33 N. H. i85; Sands 
 
 Wright V. Howell, 35 Iowa 288. v. Hildreth, 14 Johns. 493; s. c. 2 
 
 SMullanphy Savings Bank v. Johns. Ch. 35; Eastman z/. Schettler, 
 
 Lyle, 7 Lea. 431. 13 Wis. 324; Duvall v. Waters, i 
 
 *Booth V. Bunce, 33 N. Y. 139, s. Bland, 569, s. c. 11 G. & J. 37, iS 
 
 c. 24 N. Y. 592, s. c. 35 Barb. 496, 88 Am. Dec. 350; Cole v. White, 26 
 
 Am. Dec. 372. , Wend. 511; s. c. 24 Wend. 116; 
 
 SGibbs V. Chase, 10 Mass. 125; Wadsworthf. Havens, 3 Wend. 411; 
 
 Parker v. Freeman, 2 Tenn. Ch. Carpenter v. Simmons, i Robt. 360; 
 
 612; Shallcross v. Deats, 43 N. J. 177. Thomson v. Dougherty, 12 S. & R. 
 
 BJaques v. Greenwood, 12 Abb. 448; Carter v. Castleberry, 5 Ala. 
 
 Pr. 232. But see section 326, ante, 277; Douglass v. Dunlap, 10 Ohio, 
 
 note. 162; Middleton v. Sinclair, sCranch 
 
 7Pepper z/. Carter, 11 Mo. 540; C. C. 409; Laurence z/. Lippincott, 6 
 
 Barr v. Hatch, 3 Ohio, 527; Fish- N. J. 473; Miller z/. ToUeson, Harp, 
 
 burne v. Kunhardt, 2 Speers, 556; Ch. 145, 14 Am. Dec. 712; Croft z/. 
 
HOW FAR A FRAUDULENT TRANSFER IS VOID. 477 
 
 The inadequacy of the price does not affect fche 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.^ If the purchaser conveys 
 the property to another, the latter will obtain a valid 
 legal title as against a fraudulent grantee, for the title 
 acquired at the sale under the execution can not be ex- 
 tinguished without a release or a conveyance.^ 
 
 § 472. 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,* and when land 
 is sold he must also show a deed from the oflBcer who 
 made the sale.* The rights which he acquires are simply 
 those which the debtor had at the time of the transfer. 
 Prior liens are not affected by the transfer, and, as he 
 takes merely the quantity of interest which the debtor 
 had, his title is subject to such liens.' It has been held 
 that if the fraudulent transfer consists of a mortgage and 
 one creditor merely levies upon and sells th^ 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.^ The grantee 
 <3an not set up a defect in the debtor's title for the purpose 
 
 Arthur, 3 Dessau 223; Lynn v. Le SM'Creery v. Pursley, i A. K. 
 
 Gierse, 48 Tex. 238; Wagner v. Marsh. 114; Wright v. Crockett, 7 
 
 Johns, 7 Daly, 375; Hager v. Shind- Mo. 125; Dameron v. Williams, 7 
 
 ler, 29 Cal. 47; Campbell v. Jones. Mo. 138; Delesdernier v. Mowry, 20 
 
 25 Minn. 155. ^ Me. 150; Hyman v. Bailey, 13 La. 
 
 ^Thomson v. Dougllrty, 12 S. & An. 450. 
 R. 448; Hildreth v. Sands, 2 Johns, ^Hiney v. Thomas, 36 Mo. 377. 
 
 Ch. 35; s. c. 14 Johns. 493; Laurence BByrod's Appeal, 31 Penn. 241; 
 
 ■V. Lippincott, 6 N. J. 473; Mullen v, Fisher's Appeal, 33 Penn. 294; Bobb 
 
 Wilson, 44 Penn. 413; Rankin v_ v. Woodward, 50 Mo. 95. 
 Harper, 23 Mo. 579; Lynn v. Le BBuUard v. Hinkley, 6 Me. 289, 
 
 Gierse, 48 Tex. 138; McDonald v. 20 Am. Dec. 304; McWhorter v, 
 
 Johnson, 48 Iowa, 72. Huling, 3 Dana, 348. 
 
 SMulford V. Tunis, 37 N. J. 256. 
 
4*78 HOW PAH A FRAUDULENT TRANSFER IS VOID. 
 
 of defeating a recovery by a purchaser and thus retaining- 
 the property.^ 
 
 § 473. Sale Subject to Transfer. — Whether a purchaser 
 represents the rights of creditors will in some instances 
 depend upon the interest that is sold. If the fraudulent 
 transfer consists of a mortgage, a creditor may elect to 
 treat it as valid and subsisting, and sell only the equity of 
 redemption. The purchaser will not then represent the 
 creditor's right to inquire into the consideration of the 
 mortgage debt, or to impeach it upon any grounds not 
 open to the debtor himself, and will gain no advantage 
 whatever from the fact that the sale was by a sheriff on 
 execution for the satisfaction of a debt.^ If the debtor 
 has been declared a bankrupt, the right to elect whether 
 to affirm or to 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.^ If, however, he elects to treat it as void 
 he is not bound to incur the delay, and expense necessarily 
 incident t* 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.* 
 
 § 474. When Tenant Attorns to Assignee.— If the assignee 
 in bankruptcy of a debtor who has made a fraudulent con- 
 veyance of land that is subject to a lease collects the rent 
 from the tenant, the tenant may set up sfich payment as a 
 defense to an action by the fraudulent grantee for the 
 rent.' 
 
 IZerbe v. Miller, i6 Penn. 488; Brewer v. Hyndman, 18 N. H. 9. 
 
 vide Birge v. Nock, 34 Conn. 156. ^Preeland v. Freeland, 102 Mass. 
 
 * splanders v. Jones, 30 N. H. 154; 475; Dwinel v. Perley, 32 Me. 197; 
 
 Russell V. Dudley, 44 Mass. 147; Gibbs v. Thayer, 60 Mass. 30; vide 
 
 McWhorter v. Huling, 3 Dana, 348. McMaster v. Campbell, 41 Mich. 513. 
 
 STuite V. Stevens, 98 Mass. 305; BSexton v. Canny, 8 L. R. Ir. 216. 
 
HOW FAR A FRAUDULENT TRANSFER IS VOID. 47& 
 
 § 475. No Levy on Mesne Profits or Proceeds.— The grantee 
 has a valid title until the creditors, by asserting their 
 rights in due course of law, defeat it, and when defeated it 
 is not rendered void ab initio, but only from the time of 
 the levy of the execution under which the property is sold. 
 Consequently he can not be made liable in an action at 
 law for the mesne profits. For the same reason when land 
 is fraudulently conveyed the creditors can not levy upon 
 the crops subsequently produced by him,^ or upon prop- 
 erty which he has converted from realty into personalty, 
 as for instance plaster dug from the ground or stone taken 
 from a quarry,^ unless they can show that his title to such 
 personal property is merely colorable, and that he holds 
 the property by a secret trust for the debtor.^ If the 
 property consists of a furnace and iron .works, no levy can 
 be made on iron subsequently made by him at the furnace.* 
 If the property is sold, the proceeds or other property re- 
 ceived in exchange is not liable to an attachment or execu- 
 tion at law, for the statute only operates upon property 
 conveyed by the debtor, and that which the grantee re- 
 ceives 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.^ 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.® If a crop, however, is growing upon the 
 
 ijones V. Bryant, 13 N. H. 53; s. c. 3 Robt. 142; Tubb v. Williams, 
 
 Heywood v. Brooks, 47 N. H. 231. 7 Humph. 367; Campbell v. Erie 
 
 Contra, Stehman v. Huber, 21 R. R. Co., 46 Barb. 540; Childs v. 
 
 Penn. 260. Derrick, 1 Yerg. 79; Richards v. 
 
 2Garbutt v. Smith, 40 Barb. 22. . Ewing, 11 Hump. 327; Kinghorn v. 
 
 3Dodd V. Adams, 125 Mass. 398; Wright, 45 N. Y. Sup. 615; Graham 
 
 Fury V. Strohecker, 44 Mich. 337, 6 v. Rooney, 42 Iowa, 567. Contra, 
 
 N. W. 834. When the collusive Abney z/. Kingsland, 10 Ala. 355, 44 
 
 character of grantee's title to crops Am. Dec. 491; Carville v. Stout, 10 
 
 is doubtful, the creditors should re- Ala. 796; Lynch v. Welsh, 3 Penn. 
 
 ceive the benefit of the doubt. 294; Heath v. Page, 63 Penn. 280, 3 
 
 Fury V. Strohecker, supra. Am. Rep. 533; French v. Briedel- 
 
 See Polley v. Johnson, Kans., man, 2 Grant, 319; Whitehall v. 
 
 23 L. R. A. 258 and note. Crawford, 37 Ind. 147. 
 
 4Peters v. Leight, 76 Penn. 289. SLawrence v. Bank, 35 N. Y. 320, 
 
 SLawrence v. Bank, 35 N. Y. 320, s. c. 3 Robt. 142. 
 
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.^ 
 
 § 476. 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 as it is designed to 
 defraud creditors.^ As the statute operates upon the con- 
 veyance 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 inter- 
 est transferred. If the debtor, at the time of the transfer, 
 has a defeasible estate which subsequently becomes abso- 
 lute, the whole estate is liable to his creditors.^ 
 
 § 477. Rights of Grantee. — The right to redeem property 
 sold under an execution belongs to the grantee and not to 
 the debtor,* but the rfedemption will not give him a good 
 title.^ If the grantee gives a bond to dissolve an attach- 
 ment Ifevied upon the property and thus regains possession 
 of it, his title is still liable to be impeached by other credit- 
 ors.^ It has also been held that the grantee does not get a 
 good title even by a purchase at a sale under an execution.^ 
 The surplus that remains after satisfying an execution 
 belongs to the grantee.^ 
 
 § 478. Dower. — The release of an inchoate right of dower 
 which a married woman makes by joining in a conveyance 
 
 iPierce v. Hill, 35 Mich. 194, 24 7Spindler v. Atkinson, 3 Md. 409, 
 
 Am. Rep. 541. s. c. i Md. Ch. 507, 56 Am. Dec. 755. 
 
 ^Staples V. Bradley, 23 Conn. 167, STaylor v. Williams, i Ired. 249; 
 
 60 Am. Dec. 630. " Williams v. Avent, 5 Ired. Eq. 47; 
 
 SFlynn V. Williams, 7 Ired. 32; Shorman v. Farmers' Bank, 5 W. & 
 
 s. c. I Ired. 509. S. 373; Glassner v. Wheaton, 2 E. 
 
 ^Russell V. Pabyan, 34 N. H. 218, D. Smith, 352; Waterbury v. West- 
 
 s. c. 27 N. H. 520; Greenwald v. ervelt,' 9 N. Y. 598: Bostwick v. 
 
 Roberts, 4 Heisk, 494. Menck, 40 N. Y. 383; Kennedy v. 
 
 BRicker v. Ham, 14 Mass. 137; First Nat. Bank of Tuscaloosa, Ala., 
 
 Williams v. Thompson, 30 Mass. 298. 12 So. 617. 
 
 ejacobi v. Schloss, 7 Cold. 385. 
 
HOW FAE A FRAUDULENT TRANSFER IS VOID. 481 
 
 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 conveyance 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 convey- 
 ance 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.^ In the case of a 
 fraudulent mortgage she has a dower interest which may 
 be assigned to her.^ 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.* If the 
 conveyance was made before marriage, she is not entitled 
 to dower in the land when it is set aside.^ If the convey- 
 ance is set aside, the husband of the grantee can not claim 
 a tenancy by curtesy in the land.® 
 
 § 479. Exemption. — As a fraudulent deed passes a. good 
 title as between the debtor and the grantee, the former is 
 
 IMallonee v. Horan, 49 N. Y. iii, 241; s. c. 5 N. B. R. 443; s. c. 2 Dil- 
 
 s. c. 12 Abb. Pr. (N. S.) 289, 10 Am. Ion, 132. Contra, Meyer v. Mohr, 
 
 Rep. 335; Belford v. Crane, 16 N. J. 19 Abb. Pr. 299; Manhattan Co. v. 
 
 Eq. 265, 84 Am. Dec. 155; Dugan v. Evertson, 6 Paige, 457; Stewart v. 
 
 Massey, 6 Bush. 81; Summers v. Johnston, 3 Harrison, 87; Coppage 
 
 Babb, 13 111. 483; Robinson v. v. Barnett, 34 Miss. 621. 
 
 Bates,44Mass.4o;Lowryz'.Fisher, 2 ^Harrison v. Campbell, 6 Dana, 
 
 Bush, 70, 92 Am. Dec. 475; Wyman v. 263. 
 
 Fox, 59 Me. 100; Woodworth v. SHumes v. Scruggs, 64 Ala. 40. 
 
 Paige, 5 Ohio St 70; Richardson v. 4Miller v. Wilson, 15 Ohio, 108. 
 
 Wyman, 62 Me. 280, 16 Am. Rep. BKing v. King, 61 Ala. 479; Gross 
 
 459; Lockett's Adm. v. James, 8 v. Lange, 70 Mo. 45; Whithead v. 
 
 Bush, 28; Ridgway v. Masting, 23 Mallory, 58 Miss. 138. 
 
 Ohio St. 294; Duvall v. Rollins, 71 epiper v. Johnston, 12 Minn. 60. 
 N. C. 218; Cox V. Wilder, 7 N. B. R. 
 
482 HOW FAR A FRAUDUDBNT TRANSFER IS VOID. 
 
 not entitled to a homestead^ or exemption^ out of the 
 property, although the creditors set the deed aside as to all 
 that is liable to be taken on execution. 
 
 § 480. Rescission. — The law does not deprive parties of 
 the power of repentance, but rather encourages them to 
 abandon fraudulent conveyances and make honest bargains 
 instead of them. Tbe grantee will not be liable to creditors 
 
 l"Under no circumstances is the 
 debtor entitled to claim an exemp- 
 tion out of property after lie has 
 sold and conveyed it away by an in- 
 strument binding upon him. It is 
 contended in argument that the de- 
 cree of the court, declaring that the 
 property was purchased and im- 
 proved with the money of the 
 debtor and the legal title placed in 
 others for the purpose of defraud- 
 ing his creditors, had the effect to 
 reinvest the grantor with the title 
 and interest to the property, and 
 that the property then stood as if 
 there had been no disposition of it 
 by the debtor. This is a misappre- 
 hension of the purpose and mean- 
 ing of the statute. It does not and 
 was not intended to alter or affect 
 the rights of the parties to the con- 
 veyance as between themselves. 
 The effect is not to reinvest the 
 grantor with the property fraudu- 
 lently conveyed, but simply to 
 declare that as to the creditors 
 the conveyance is null and void. 
 If more property is conveyed 
 than is necessary to satisfy 
 the defrauded creditor's demands, 
 or if, upon a sale of this property, 
 the proceeds are in excess of his 
 debt, the excess goes to the grantee 
 and not to the grantor. When the 
 proofs shows that the money of an 
 insolvent debtor was invested in 
 property and the title taken in the 
 name of a third person, for the pur- 
 
 pose of hindering and defrauding 
 his creditors, equity fastens a trust 
 upon the property for the bene&t of 
 the defrauded creditor; but not for 
 the benefit of the fraudulent 
 grantor." Kennedy ». First Na- 
 tional Bank of Tuscaloosa, Ala. , 
 12 So. 617; Sumner v. Sawtelle, 8 
 Minn. 309; Stancill v. Branch, i 
 Phillips, 306; Getzler v. Saroni, 18 
 111. 511; Cassell V. Williams, 12 111. 
 387; Keating v. Keefer, 5 N. B. R. 
 133! 2« ^^ Dillard, 9 N. B. R. 8; 
 Gibbs V. Patten, 2 Lea, 180; Piper z/. 
 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; B. c. 2 Dillon, 132; s. 
 c. 5 N. B. R. 443; Penny v. Taylor, 
 10 N. B. R. 200; McFarland v. Good- 
 man, 6 Biss. iii; s. c. II N. B. R. 
 134; Vogler V. Montgomery, 54 Mo. 
 577; Sears v. Hanks, 14 Ohio St. 
 298, 84 Am. Dec. 378; 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, i; State v. Dive- 
 ling, 66 Mo. 375; Jafiers, v. Aneals, 
 91 111: 487; Turner v. Vaughan, 33 
 Ark. 454; Bennett v. Hutson, 33 
 Ark. 762. 
 
 2Huey'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. 
 
HOW FAR A FRAUDULENT TRANSFER IS VOID. 
 
 483 
 
 if tie restores the property to the debtor,^ or applies it to 
 the payment of the grantor's debts.^ The parties may also 
 rescind the fraudulent contract and enter into a new con- 
 tract for a sale or other transfer of the property, and if the 
 latter is made in good faith and for a valuable consideration 
 it will not be contaminated by the fraud in the first.^ If 
 property is purchased in part with funds furnished by the 
 debtor and in part by the grantee, it may be sold and the 
 grantee's share invested in other property.* 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 objection.^ 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.^ 
 
 § 481. There must be Restitution. — There is no valid re- 
 pentance, however, without an entire restitution where 
 
 iCramer v. Blood, 57 Barb. 155, 
 48 N. Y. 684. 
 
 2Hutchins v. Sprague, 4 N. H. 
 469, 17 Am. Dec. 439; Kaupe v. 
 Bridge, 2 Robt. 459; Crowninshield 
 V. Kittredge, 48 Mass. 520. 
 
 3King V. Cantrell, 4 Ired. 251; 
 Merrill v. Meachum, 5 Day 341; 
 Matthews v. Buck, 43 Me. 265; Bor- 
 land V. Mayo, 8 Ala. 104; White v. 
 White, 13 Ired. 265; Thrall v. Spen- 
 cer, 16 Conn. 139; Waller v. Todd, 
 3 Dana, 503, 28 Am. Dec. 94; Orien- 
 tal Bank V. Haskins, 44 Mass: 332, 
 37 Am. Dec. 140; Harvey v. Mix, 24 
 Conn. 406; Tyler v. Tyler, 126 111. 
 525, 9 Am. St. Rep. 642, 21 N. E. 
 616; Songer v. Partridge, 107 111. 529; 
 Parker v. Tiffany, 52 111. 286; vide 
 Halcombe v. Ray, i Ired. 340. 
 
 In Tyler v. Tyler, supra, the court 
 says, in the course of the opinion: 
 "We are not unmindful, in this con- 
 nection, that it is competent in the 
 case of a fraudulent conveyance or 
 assignment, for the parties thereto 
 
 subsequently to make a new and in- 
 dependent agreement, for a suffi- 
 cient valuable consideration, where- 
 by the grantee or assignee shall b6 
 obligated to hold the property in 
 trust for the grantor or assignor." 
 
 "But it is manifest that 
 
 such an agreement must be open 
 and notorious and made in good 
 faith to establish a trust in the 
 property, for otherwise it would be- 
 but attempting to create anew the 
 secret trust already condemned by 
 the statute." 
 
 4Allen V. Holland, 3 Yerg. 343. 
 
 BRoane v. Bank, i Head 526; 
 Stoddard v. Butler, 7 Paige 163, s. c. 
 20 Wend. 507; Peacock v. Tomp- 
 kins, Meigs 317. 
 
 iJEaton V. Campbell, 24 Mass. 10; 
 Breckinridge v. Anderson, 3 J. J. 
 Marsh. 710; Gridley 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. Crit- 
 tenden, 37 Conn. 148. 
 
484 HOW FAR A FRATTDtJLENT TRANSFER IS VOID. 
 
 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.-^ If a transfer is 
 fraudulent, the subsequent payment in full of the purchase 
 money will not render it valid.^ So also if the transaction 
 is merely colorable it will not be purged by any subsequent 
 payment' or advances in part without rescinding the whole, 
 whether made to the debtor or the creditors. If any part 
 of the fraudulent purpose remains it vitiates the whole.^ 
 A consideration paid at the time when a party assents to 
 a deed placed on record without his knowledge is not, how- 
 ever, a subsequent consideration.* 
 
 § 483. Administrator. — If the grantee dies before a rescis- 
 sion of a transfer, the personal property will vest in his 
 personal representatives, and no return, can be made which 
 will interfere with their rights.^ When a judgment is 
 confessed for certain articles in favor of an administrator, 
 accompanied with a secret trust, the trust is void, and the 
 distributees may require the enforcement of the judgment.^ 
 
 § 483. Assignee. — If the debtor subsequently makes an 
 assignment, the creditor may still have the fraudulent 
 transfer set aside, for he can not transfer any right to his 
 assignee which he himself does not possess.'' 
 
 iBunn V. Ahl, 29 Penn. 387; ^Brownell v. Curtis, 10 Paige, 
 
 Sparks v. Mark, 31 Ark. 666. See 210; Browning v. Hart, 6 Barb. 91; 
 
 section 435, anU, note. Storm v. Davenport, i Sandf. Ch. 
 
 ^Borland v. Mayo, 8 Ala. 104; 135; Thomson v. Dougherty, 12 S. 
 
 Chenery v. Palmer, 6 Cal. 119, 65 & R. 448; Vandyke v. Christ, 7 W. 
 
 Am. Dec. 493. ' & S. 373; Leach v. Kelsey, 7 Barb. 
 
 SWood V. Hunt, 38 Barb. 302; 466; Esterbrook v. Messersmith, 18 
 Danjean v. Blacketer, 13 La. An. Wis. 545; Maiders v. Culver, i Duval, 
 595; Lynde v. McGregor, 95 Mass. 164; Van Keuren z/. McLaughlin, 21 
 182, 90 Am. Dec. 188; Stone v. Grub- N. J. Bq. 163; Luckenbach v. Brick- 
 ham, 2 Bulst. 217; s. c. I Rol. Rep. enstein, 5 W. & S. 145; Rogers v. 
 3; Law V. Payson, 32 Me. 521; Halt- Fales, 5 Penn. 154; Pillsbury v. 
 combe v. Ray, i Ired. 340. Kingon, 31 N. J. Eq. 619; Flower z/. 
 
 *Smith V. Epsy, 9 N. J. Eq. 160. Cornish, 25 Minn. 473; Mann v. 
 
 SDearman z/. RadclifEe, 5 Ala. 192. Flower, 25 Minn. 500; Heinrich v. 
 
 BKavanaugh v. Thompson, 16 Woods, 7 Mo. Ap. 236, vide Engle- 
 
 Ala. 817. bert v. Blanjot, 2 Whart. 240; Swift 
 
HOW PAR A FRAUDULENT TRANSFER IS VOID. 485 
 
 § 484. Prior luterests 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.^ Although an endorsement on a mortgage is 
 fraudulent, yet when that is set aside the mortgage will 
 be valid.^ The dower of the debtor's wife will be revived 
 when a deed from the grantee to her is vacated.* 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.^ 
 
 V. Thompson, 9 Conn. 63, 21 Am. 10 Vt. 81; Stedman v. Vickery, 42 
 
 Dec. 718; Gait ZJ. Dibrell, 10 Yerg. Me. 132; Daniel v. Morrison, 6 
 
 146; Gaylor v. Harding, 37 Conn. Dana, 182, s. c. 6 J. J. Marsh. 398; 
 
 508; Rood V. Welch, 28 Conn. 157; vide Clayborn v. Hill, i Wash. (Va.) 
 
 Shipman v. ^tna Ins. Co., 29 Conn. 177, i Am. Dec. 452. 
 245; Bayard v. Hoffman, 4 Johns. ^whithed v. Pillsbury, 13 N. B. 
 
 Ch. 450. See sections 318 and 326, R. 241. 
 
 ante. ^Roberts v. Jackson, i Wend. 
 
 iLadd z/. Wiggin, 35 N. H. 421, 478; Humes z/. Scruggs, 64 Ala. 40. 
 69 Am. Dec. 551; Mead v. Combs, *Malloney z/. Horan, 49N. Y. iii, 
 
 ig N. J. Eq. 112; Stokoe v. s. c. 12 Abb. Pr. (N. S.) 289, 10 Am. 
 
 Cowan, 29 Beav. 637; Ripley Rep. 335; Bobb v. Woodward, 50 
 
 V. Severance, 23 Mass. 474, 17 Mo. 95; Towle v. Hoitt, 14 N. H. 
 
 Am. Dec. 397; Britt. v. Aylett, 11 61. 
 
 Ark. 475, 52 Am. Dec. 282; Towle ' SHaven w. Low, 2 N. H. 13, gAm. 
 
 V. Hoitt, 14 N. H. 61 ; Irish v. Clayes, Dec. 25. 
 
486 HOW FAR A FRAUDULENT TRANSFER IS VOID. 
 
 § 485. Yoid in Part is Toid in Toto.— If a part of the 
 consideration for a transfer is merely a nominal or colora- 
 ble consideration, contrived to hinder, delay, or defraud 
 creditors, the whole transfer is void.^ 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 trans- 
 fers 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.^ So also if a creditor takes a mortgage,^ or a 
 judgment,^ or issues an attachment,^ for more than is due, 
 the fraud corrupts and destroys the whole. There must, 
 however, be fraud to bring a case within this principle. 
 If there is no fraud or wrong done, or attempted, or 
 intended to be done, the principle does not apply. If an 
 attachment or judgment is taken for too much inadvert- 
 ently, and the creditor has no purpose of obtaining any 
 more than is due to him, it will be valid.^ 
 
 § 486. Fraudulent Deed as Mortgage.— Where a deed, 
 absolute on its face, is set aside as fraudulent, some authori- 
 ties incline to the view that it cannot be permitted to stand 
 
 iFloyd V. Goodwin, 8 Yerg. 484, 4Piercew. Partridge, 49 Mass. 44; 
 
 29 Am. Dec. 130; Marriott v. Whiting z/. Johnson, 11 S. & R. 328, 
 
 Givens, 8 Ala. 694; Tatum v. Hun- 14 Am. Dec. 633; Fryer v. Bryan, 2 
 
 ter, 14 Ala. 557; Burke v. Murphy, Hill Ch. 56; Bowie v. Free, 3 Rich. 
 
 27 Miss. 167; McKenty v. Gladwin, Bq. 403; Dickinson v. Way, 3 Rich. 
 
 10 Cal. 227; Scales v. Scott, 13 Cal. Eq. 412; Gates v. Johnson, 3 Penna. 
 
 76; Fiedler v. Day, 2 Sandf. 594; 52. 
 
 Mead v. Combs, 19 N. J. Eq. 112; 6pairfield v. Baldwin, 29 Mass. 
 
 Hall V. Heydon, 41 Ala. 242; Albee 388; Taaffe z/. Josephson, 7 Cal. 352; 
 
 V. Webster, i5 N. H. 362; Coolidge Hale v. Chandler, 3 Mich. 531; 
 
 V. Melvin, 42 N. H. 510; Johnson v. Harding v. Harding, 25 Vt. 487. 
 Murchison, 1 Winst. 292; vide epelton v. Wadsworth, 61 Mass. 
 
 Gicker «. Martin, 50 Penn. 138. See 587; Ayres v. Husted, 15 Conn. 504; 
 
 section 34, ante. Shedd v. Bank, 32 Vt. 709; Daven- 
 
 sWilson & Wormal's Case, God- port v. Wright, 51 Penn. 292; 
 
 bolt, 161. Wilder v. Fondey, 4. Wend. 100; 
 
 SHolt V. Creamer, 34 N.J. Eq. Harris v. Alcock, 10 G. &J. 226, 32 
 i8i; Heintze z/. Bentley, 34 N. J. Eq. ■ Am. Dec. 158. 
 562. 
 
HOW FAR A FRAUDULENT TRANSFER IS VOID. 
 
 487 
 
 as security for the amount advanced.'^ There are authori- 
 ties, however which hold the contrary.^ 
 
 § 487. Mortgage Fraudulent as to part of the property.— 
 
 If a mortgage is made to secure part of the property to the 
 mor.tgagee, and to cover the residue for the use of the 
 debtor, it is void as to the whole. To render an instru- 
 ment valid it must be given in good faith, and without any 
 intent to hinder or defraud creditors. This unlawful design 
 vitiates the entire instrument. The unlawful design can 
 not be confined to one particular parcel of property. En- 
 tire honesty and good faith are necessary to render the in- 
 strument valid, and whenever it appears that one object 
 was to defraud creditors, the entire deed is in judgment of 
 law void.* 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.* 
 
 iHassam v. Barrett, 115 Mass. 256; 
 Beidler v. Crane, 135 111. 92, 25 N. 
 E. 655. 
 
 2"Uiider the decisions of this 
 court a deed, though absolute in 
 form, can be shown, as between the 
 parties, to be a mortgage. Without 
 objection or exception the deed in 
 this case was shown to be only a 
 mortgage between the parties. It 
 was valid as such between them, 
 though void as to any other credit- 
 ors. It was valid between them as 
 a mortgage and will be enforced as 
 such." Still V. Buzzell, 60 Vt. 478, 
 12 Atl. 209. See also Seller v. Walz, 
 17 Ky. Law Rep. 301, 29 S. W. 338. 
 In Campbell v. Davis, 85 Ala. 56, 
 4 So. 140, it is said that a deed void 
 for constructive fraud may stand as 
 security, but not if void for actual 
 fraud. See section 265, ante. 
 
 SRussell V. Winne, 37 N. Y. 591, 
 s. c. 4 Abb. Pr. (N. S.) 384, 97 
 Am. Dec. 755; Divver , w. Mc- 
 I/aughlin, 2 Wend. 596, 20 Am. 
 
 Dec. 655; 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, 26 Am. Dec. 242; Swinford v. 
 Rogers, 23 Cal. 233; Harmanz/. Hos- 
 kins, 56 Miss. 142; vide ShurtlefE v. 
 Willard, 36 Mass. 202; Chase v. 
 Walker, 26 Me. 555; Barnet v. Fer- 
 gus, 51 111. 352, 99 Am. Dec. 547; in re 
 Kahley et al., Biss. 383; s. c. 4 N. B. 
 R. 378; Allen v. Brown, 43 Geo. 305; 
 in re Perrin, 7 N. B. R. 283; Don- 
 nell V. Byern, 69 Mo. 468; in re 
 Kirkbride, 5 Dill. 116; in re Geo. 
 P. Morrill, 2 Saw. 356, s. c. 8 N. B. 
 R. 117. 
 
 *DeWolf V. Harris, 4 Mason, 515; 
 S. c. 4 Pet. 147; DeBardleben v. 
 Beekman, i Dessau. 346; Brown v. 
 Foree, 7 B. Mon. .357, 46 Am.- Dec. 
 519; Weller v. Wayland, 17 Johns. 
 102; Lee V. Huntoon, HofE. 447; 
 Spaulding v. Austin, 2 Vt. 555; 
 Hessing v. McCloskey, 37 111. 341. 
 
488 HOW FAR. A FRAUDULENT TRANSFER IS VOID. 
 
 § 488. A Fraudulent Stipulation.— A fraudulent stipula- 
 tion, 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 void 
 altogether, and no interest passes under the part which is 
 good.^ 
 
 § 489. 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 ta 
 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 dishonest 
 purpose. If, for instance, a deed is made to secure two dis- 
 tinct 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.^ If, how- 
 ever, 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.^ 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.* 
 
 iHyslop V. Clarke; 14 Johns. 458; 5 Jones Eq. 75; Spies v. Boyd, i %. 
 
 Mackie v. Cairns, 5 Cow. 547, s. c. D. Smith, 445. 
 
 1 Hopk. 373, 15 Am. Dec. 477; Good- Sprince v. Shepard, 26 Mass. 176; 
 
 rich V. Downs, 6 Hill, 438; Albert Anderson v. Hooks, 5 Ala. 704; 
 
 V. Winn, 7 Gill. 446, s. c. 5 Md. 66, Gary v. Colgin, 11 Ala. 514; Smith 
 
 s. c. 2 Md. Ch. 42, 169; McClurg v. v. Post, 3 T. & C. 647; Troustine v. 
 
 I<ecky, 3 Penna. 83, 23 Am. Dec. 64; Lask, 4 Baxter, 162; vide Pettibone 
 
 Robins V. Embry, I S. & M. Ch. 207; v. Phelps, 13 Conn. 445, 35 Am. Dec. 
 
 Jacot V. Corbett, i Chev. Eq. 71; 88; Esterbrook v. Messersmith, i8- 
 
 Howell ». Edgar, 4 111. 417; Dana v. Wis. 545. See section 34 ante. 
 Lull, 17 Vt. 390; Caldwell v. Wil- 3Lewis v. Caperton, 8 Gratt. 148? 
 
 liams, I Ind. 405; Pierson v. Man- Swartz v. Hazlett, 8 Cal. 118. 
 ning, 2 Mich. 445; Green v. Branch *Gregg v. Bigham, i Hill (S. C.> 
 
 Bank, 33 Ala. 643; Greenleaf v. 299, 26 Am. Dec. 181. 
 Edes, 2 Minn. 264; Palmer z/. Giles, 
 
BONA FIPE PURCHASERS FROM FRAUDULENT GRANTEE. 48^ 
 
 § 490. Valid for some Purposes.— A fraudulent recovery- 
 stands good to bar those in remainder or reversion as if 
 there had been no fraud. The deed declaring the uses is 
 void. The recovery stands as a recovery simply without 
 any deed to lead or declare the uses.^ 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.^ 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.^ If a 
 note is taken in the name of another, the maker, when 
 innocent of the fraud, can not be held liable to creditors.* 
 
 CHAPTBE, XVII. 
 
 BONA FIDE PURCHASERS FROM FRAUDULENT 
 
 GRANTEE. 
 
 § 491. Purchaser as well as Grantee Protected. — Is qui 
 
 a debitore cujus bona possessa sunt sciens rem emit iterum 
 alii bona fide ementi vendidit. Quassitum est an secundus 
 emptor conveniri potest; sed verier Sabini 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 
 
 iTarleton v. Liddell, 17 Q. B. 390, SCutting v. Pike, 21 N. H. 377. 
 
 s. c. 4 DeG. & Sim. 538. ^Patterson v. Whittier, 19 N. H. 
 
 2Shee V. French, 3 Drew, 716; 192. 
 Neale v. Day, 28 L. J. Ch. 45; 6Dig. Lib. 42, tit. 9, 3 Pothier 
 
 French v. French, 6 DeG. M. & G. Pand. Lib. 42, tit. 8, art. 3, § 25, p. 
 
 95, s. c. 25 L. J. Ch. 612; Wakefield 195. 
 V. Gibbon, i GifE. 401. 
 
490 BONA FIDE PURCHASERS FROM FRAUDULENT GRANTEE. 
 
 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. Il 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 
 fraudulent grantor or the fraudulent grantee.^ The great 
 object of the law is to afford certainty and repose to titles 
 honestly acquired. It is of no public utility to destroy titles 
 so acquired on account of the taint of a prior secret 
 fraud, which may be unsuspected and unknown, and which, 
 probably, no diligence could detect. A purchaser who pays 
 a fair price for an 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 
 
 § 4:92. Fraudulent Transfer is 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 dis- 
 
 lAaderson v. Roberts, i8 Johns. Martin v. Cowles, i Dev. & Bat. 29. 
 515, s. c. 2 Johns. Ch. 372, 9 Am. 2Lee v. Abbe, 2 Root, 359; Bean v. 
 
 Dec. 235;Mateerz'. Hissim, 3Peuna. Smith, 2 Mason, 252; Martin v. 
 
 160; Bean v. Smith, 2 Mason, 252; Cowles, 1 Dev. & Bat. 29. 
 
BONA FIDE PURCHASERS FROM FRAUDULENT GRANTEE. 491 
 
 tinctioa, however, between a transfer which is an absolute 
 nullity and one which is voidable only. No transfer can 
 be pronounced in a legal sense utterly void which is valid 
 as to some persons but may be avoided at the election of 
 others. A thing is void which is done against law at the 
 very time of doing it, and where no person is bound by the 
 act; but a thing is voidable which is done by a person who 
 ought not to have done it, but who nevertheless can 
 not avoid it himself after it is done. Whenever the act 
 done takes effect as to some purposes, and is void as to per- 
 sons 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.-' 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 alien- 
 ate. The only infirmity in his title to 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 be- 
 comes sound and indefeasible.^ There is no distinction 
 
 lAnderson v. Roberts, i8 Johns. Terry, 13 Johns. 471; Lee z/. Abbe, 2 
 
 515; s. c. Johns. Ch. 372; Martin v. Root, 359; Coleman v. Cocke, 6 
 
 Cowles, I Dev. & Bat. 29. Rand, 618, i8 Am. Dec. 757; King v. 
 
 ^George v. Kimball, 41 Mass. Trice, 3 Ired. Eq. 568; Cummings v. 
 234; Gridley v. Wynant, 23 How. McCuUough, 5 Ala. 324; Sheldon v. 
 500; Wilson & Wormal's Case, God- Stryker, 42 Barb. 284; s. c. 27 How. 
 bolt, 161; Martin v. Cowles, i Dev. Pr. 387; Wineland v. Coonce, 5 Mo. 
 & Bat. 29; Thompson v. M'Kean, i 296, 32 Am. Dec. 320; Pine v. 
 Ashmead 129; Hood v. Fahnestock, Rikert, 21 Barb. 469; Simpson ». 
 S Watts, 489, 34 Am. Dec. 489; Simpson, 7 Humph. 275; Choteau v. 
 Mateer v. Hissim, 3 Penna. 160; Jones, 11 111. 301, 50 Am. Dec. 460; 
 Bwing V. Cargill, 21 Miss. 79; Blake Comm. v. Richardson, 8 B. Mon. 81; 
 t;. Williams, 36 N. H. 39; Paige 9. Richards z/. Ewing, 11 Humph. 327; 
 O'Neal, 12 Cal. 483; Green v. Tan- Colquitt v. Thomas, 8 Geo. 258; 
 ner, 49 Mass. 411; Sutton v. Lord, i Sinclair v. Healy, 40 Penn. 417; 
 Dane Ab. 631; Goodale v. Nichols, i Curtis v. Riddle, 89 Mass. 185; Ran- 
 Dane Ab. 631; Gordon v. Haywood, kin v. Arndt, 44 Barb. 251; Parker 
 2 N. H. 402; Hawkins v. Sneed, 3 v. Crittenden, 37 Conn. 148; Dan- 
 Hawks, 149; Hoy V. Wright, Brayt. bury v. Robinson, 14 N. J. Eq. 213, 
 208; NeaUz/. Williams, i8 Me. 391; 82 Am. Dec. 244; Friedenwald v. 
 Trott V. Warren, 11 Me. 227; Ers- Mullan, 10 Heisk. 226; St. Louis M. 
 kine ». Decker, 39 Me. 467; Bean v. L. Co. v. Cravens, 69 Mo. 72; Fury 
 Smith, 2 Mason, 252; Jackson v. v. Kempin, 9 Mo. Ap. 30; Carnahan 
 
492 BONA FIDE PURCHASERS FROM FRAtTDULENT GRANTEE. 
 
 in tMs respect between actual and constructive fraud.'^ 
 
 § 493. Must be Bona Fide and for YaluaWe Considera- 
 tion. — An inquiry in regard to the rights of a purchaser 
 only becpmes material when he purchases for a valuable 
 consideration without notice of the fraud. If he does not 
 give a valuable consideration,^ or if he has notice of the 
 fraud,^ he is in the same 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 situa- 
 tion than he was before, and the creditors have the 
 stronger equity.* An extension of the time for the pay- 
 ment of a pre-existing debt is, however, a valuable consid- 
 
 V. McCord, ii6 Ind. 67, 15 West. 
 540, 18 N. E. 177, under the Indiana 
 statute; Alexander «. Swackliani- 
 mer, 105 Ind. 81, 2 West. 654, 4 N. 
 B. 433. 5 N. E. 908; I^e Grand v. 
 Eufala Nat. Bank, 81 Ala. 123, 1 
 So. 460, 60 Am. Rep. 140; Bruen v. 
 Dunn, 87 Iowa 483, 54 N. W. 468; 
 (see Dunn v. Wolf, 81 Iowa 688, 47 
 N. W. 887;) Leich v. Dee, 86 Iowa 
 709, 52 N. W. 209; Halverson v. 
 Brown, 75 Iowa 702, 38 N. W. 123; 
 Mathews v. Reinhardt, 149 111. 635, 
 
 37 N. E. 85; I/ionberger v. Baker, 
 88 Mo. 447, 4 West. 72; Stearns v. 
 Gage, 79 N. Y. 102; Davis v. Noll, 
 
 38 W. Va. 66, 45 Am. St. Rep. 841, 
 17 S. E. 791- 
 
 But see Preston v Crofut, i Conn. 
 527, note; Read v. Staton, 3 Hay. 
 (Tenn.) 159. 
 
 IThompson v. Lee, 3 W. & S. 
 
 479- 
 
 2porrest v. Camp, 16 Ala. 642. 
 See chapters IX and XI, ante, and 
 section 181, ante. 
 
 sParkman v. Welch, 36 Mass. 
 231; Wise V, Tripp, 13 Me. 9; Gar- 
 land V. Rives, 4 Rand. 282, 15 Am . 
 
 Dec. 756; Knox v. Hunt, 18 Mo. 
 174; O'Connor z/. 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; Goshorn v. 
 Snodgrass, 17 W. Va. 717; 
 Mathews v. Rinehart, 149 111. 635, 
 37 N. E. 85; Fulkerson v. Sap- 
 pington, 104 Mo. 472, 15 S. W. 941; 
 Jacobs V. Smith, 89 Mo. 673, 5 
 West. 658, 2 S. W. 13; Stearns v. 
 Gage, 79 N. Y. 102. See chapter 
 VIII, ante, particularly sections 
 182 and 183. 
 
 ^Manhattan Co. v. Evertson, 6 
 Paige, 457; Agricultural Bank v. 
 Dorsey, i Freem. Ch. 338; Jessup v. 
 Hulse, 29 Barb. 539, s. c. 21 N. Y. 
 168; Fleming v. Grafton, 54 Miss. 
 79; De Witt V. Van Sickle, 29 N. J. 
 Eq. 209; Front v. Vaughn, 52 Vt. 
 451; I,ennard's Appeal, 21 W. N. C. 
 40, 2 Cent. 840 (Pa.) But see Knox 
 V. Hunt, 18 Mo. 174; Thornton v. 
 Hook, 36 Cal. 223; Okie z/. Kelly, la 
 Penn. 323. And see Chapter IX, 
 ante. 
 
BONA FIDE PURCHASERS FROM FRAUDULENT GRANTEE. 493 
 
 «ration.^ The relinquislimeiit of a security is a good consid- 
 eration.^ The transaction between the fraudulent grantee 
 and the purchaser must be completely closed by the pay- 
 ment of all the purchase money and the completion of the 
 "transfer before the notice, or the purchaser cannot hold the 
 3)roperty.* Notice before the payment of the purchase 
 money,'' or the completion of the transfer,^ is .sufficient to 
 invalidate the transaction. Merely giving security for the 
 purchase money is not enough to entitle a party to the 
 •character of a purchaser for a valuable consideration." 
 
 § 494. 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.^ 
 It is sufficient if the information is so definite as to enable 
 the purchaser to ascertain whether it is authentic, and suf- 
 ficiently clear and authentic to put the purchaser on in- 
 quiry, 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 ascer- 
 tain their nature by inquiry will operate as notice.^ "When 
 
 IThamesz/. Rembert, 63 Ala. 561. Houser, 61 Geo. 629; Mathews z;. 
 
 2Agrictiltural Bank v. Dorsey, i Reinhardt, 149 111. 635, 37 N. E. 85; 
 
 Treem. Ch. 338. Connecticut Mut. Life Ins. Co. v, 
 
 SDugan v. Vattier, 3 Blackf. 245; Smith, 117 Mo. 261, 38 Am. St. Rep. 
 
 •Colquitt V. Thomas, 8 Geo. 258; 656, 22 S. W. 623; Davis v. Noll, 38 
 
 R.hodes v. Green, 36 Ind. 7. W. Va. 66, 45 Am. St. Rep. 841, 17 
 
 ^Dixon V. Hill, 5 Mich. 404; S. B. 791- 
 
 Marsh v. Armstrong, 20 Minn. 81, But contra, Stearns v. Gage, 79 
 
 18 Am. Rep. 355; vide Newlin v. N. Y. 102; Parker v. Conner, 93 N. 
 
 Osborne, 6 Jones (N. C.) 128, 72 Am. Y. 118, 45 Am. St. Rep. 178. These 
 
 Dec. 566; Phelps v. Morrison, 25 N. New York decisions are criticised 
 
 J. Bq. 538. And see section 184, in Wait on Fraudulent Convey- 
 
 ahte, and notes. ances, 2nd ed., sections 375 and 376, 
 
 Sparnsworth v. Bell, 5 Sneed and in an article by J. H. Hopkins, 
 
 .531; Jones w. Read, 3 Dana 540. Esq., 23 Albany Law Journal 126, 
 
 BRogers v. Hall, 4 Watts, 359. Feb. 12, 1881. 
 
 7Ringgold V. Waggoner, 14 Ark. For a fuller discussion of this 
 
 ■69; Johnston v. Harvey, 2 Penna. 82; question of notice, see sections 183 
 
 Baker v. Bliss, 39 N. Y. 70; Harrell and 184, ante, and notes. 
 
 iv. Beal, 9 N. B. R. 49; Brow v. SMartel V. Somers, 26 Tex. 551. 
 
494 BONA FIDE PURCHASERS FROM FRAUDULENT GRANTEE. 
 
 a purchaser has knowledge of any fact suflBcient to put him 
 on inquiry, he is presumed either to have made the inquiry 
 and ascertained the extent of the rights that he may possi- 
 bly prejudice, or to have been guilty of a degree of negli- 
 gence fatal to the claim to be considered a bona fide pur- 
 chaser. ■* This notice may be derived from the statement of 
 creditors or other parties.^ The debtor's retention of the 
 possession of land,^ or personal property,* is not a suffi- 
 cient notice of any fraud in the transaction. The pur- 
 chaser is chargeable with notice of all the matters which 
 appear to be within the knowledge and memory of his 
 agent.' Notice of the facts which constitute grounds of a 
 divorce will amount to notice of the fraudulent character 
 of a transfer made to avoid payment of alimony.^ 
 
 § 495, 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.^ He is, however, bound to take 
 
 IBaker v. Bliss, 39 N. Y. 70; vide vide Hood v. Fahnestock, 8 Watts, 
 
 Carroll v. Hayward, 124 Mass. 120; 489,34 Am. Dec. 489. 
 Le Gierse v. WMtehurst, 66 Tex. BWeber v. Rothchild, 15 Ore. 385, 
 
 244, 18 S. W. 510. 3 Am. St. Rep. 162, 15 Pac. 650. 
 
 SMartel v. Somers, 26 Tex. 551. ^Prazer v. Western, 1 Barb. Ch. 
 
 ilSuiter v. Turner, 10 Iowa, 517. 220; s. c. i How. App. Cas. 448; 
 
 *Danzey v. Smith, 4 Tex. 411; Sparrow v. Chesley, 19 Me. 79; 
 
 Boyle V. Rankin, 22 Penn. 168. Gabler v. Boyd, 22 Pitts. 1,. j. 89; 
 
 6Hook v. Mowre, 17 Iowa, 195; Lionberger v. Baker, 88 Mo. 447, 4 
 
 West. 72. 
 
BONA FIDE PURCHASERS FROM FRAUDULENT GRANTEE. 496 
 
 notice of any fraud apparent upon the face of a deed 
 under whicli he claims title.^ 
 
 § 4:96. Purchaser of Chattel Mortgage.— There is a dis- 
 tinction between real and personal estate. The title to 
 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.^ 
 
 § 497. 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, 
 tbe person who is about to purchase is not bound to go 
 further and search the records for the purpose of ascer- 
 taining whether subsequent judgments may not have 
 been recovered against the debtor.^ 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,^ or even the issuing of an execution thereon,^ 
 for the bona fides and valuable consideration in the second 
 purchase supply the want of these qualities in the first, 
 
 iParmers' Bank v. Douglass, ig ^Anderson v. Roberts, i8 Johns. 
 
 •Miss. 469; Jolinson v. Thweatt, 18 515; s. c. 2 Johns. Ch. 372; Scott v. 
 
 Ala. 741; Spencer v. Godwin, 30 Purcell, 7 Blackf . 66, 39 Am. Dec. 
 
 Ala. 355; Palmer v. Giles, 5 Jones 453, Wood v. Wright, 4 Fed. Rep. 
 
 Eq. 75; Ward w. Trotter 3 Mon. i; 511; Murray v. Jones, 50 Geo. 109; 
 
 Johnston v. Harvey, 2 Penna. 82, Beall v. Harrell, 7 N. B. R. 400; s. 
 
 21 Am. Dec. 426. c. 1 Woods, 476. 
 
 SBigelow V. Smith, 84 Mass. 264. BYoung v. Lathrop, 67 N. C. 63, 12 
 
 SLedyard v. Butler, 9 Paige, 132, Am. Dec. 603; Williams v. Lowe, 4 
 
 37 Am. Dec. 379; Jackson v. Terry, Humph. 62; Thames v. Rembert, 63 
 
 13 Johns. 471; Scott V. Purcell, 7 Ala. 561. Contra, McCabe v. Sny- 
 
 Blackf. 66, 39 Am. Dec. 453. der, 3 Phila. 192. 
 
496 BONA KIDH I'lIKOlTASERS PROM FRAUDULENT GRANTEE. 
 
 HO iiH to poi-rtHii the title of the bona fide purchaser by 
 oarrying- ili Imok (o the debtor and thus divest any lien 
 liluUi may havo aliaohtnl in the interval. If a party, how- 
 iwov, jmrohaaoH after the levying of an execution^ or an 
 ntlaohmoui,'-' or during the pendency of a bill in equity to 
 M(>ti asido tho ooiivoyauce,'' he is a, ^nrchaseT pendente lite, 
 i\\\d his rights aro subordinate to those of the creditors. 
 \ party who purchases at a sale under an execution has 
 tho prior ri^ght as against a party who subsequently buys 
 tlio proporty from the grantee, although the latter has no 
 ni>iioo of the prior sheriffs sale.^ His right to priority is 
 »>ot atVootod by the fact that his deed is not executed until 
 after the execution of the deed from the fraudulent 
 gr.'uUee, Cor his deed relates back to the day of the sale.^ 
 Tht> rights of the respective purchasers are liable how- 
 over, to be atVected by the laws relating to the registratioiL 
 v>f deeds. If <H purchaser at a sale under an eseeutioii 
 records his deed prior to a purchase from the grantee, he 
 hsis the prior right,* But his deed will be postponed to a 
 subsev^uent vleed from the grantee if that is recorded first, 
 *UU<>«^h his dei»d is prior in point of time, for the priority 
 vH" couveyaiu-es .is between pareh&sers deriTing title 
 uudi^r th<^ frauduli^nt grantor and frandnl^t grantee 
 r«f*p<^tiT<?ly d<»p<fnds npon the time of recording tie eon- 
 vey\sr.ces-^ li has, however, be«& held that a sale onde? 
 «u <^j;ie<-uticin of prop«arty frandnl«atly purchased intbe 
 i««i^ v>f anotWx-. and a t>e«Hrd of tie sheriff's de^ed. woald 
 nM pn^Tsul sinsr:is: a sabs^o aeni kmaa JUie purchaser fnm 
 Ik* $t«nt««$< <«i the grc^^rad that the recisrry of deed is 
 
 -t*C->::sc.T; ». AT'.-.-rstt-s ; "Wf»a. ^S«a:e si. Heuierscoi, 5 Bee- :r. 
 
 V<J. Cv>«M^ r-. K?*,--.. Si X, Y. 5::?5; '"SCei-i s:. .-sTr^-r ;^ iit.. ^b;Sbs- 
 
 <0»{Ct*«^ -^ TtesKx J A S. ??£.. 5.i^ 2.:, 
 
BONA FIDE PURCHASERS FROM FRAUDULENT GRANTEE. 497 
 
 only evidence of a notice to subsequent purchasers under 
 the same grantor.^ 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.^ "When the commencement of 
 such a proceeding creates a lis pendens, a party who buys 
 the property at the 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.* 
 
 § 498. 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.* The marriage, how- 
 ever, must take place before there is a lien upon the prop- 
 erty.' 
 
 § 499. Whea 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.^ A bona fide pur- 
 chaser at a sale under an execution obtains a good title 
 although the judgment is fraudulent.'' 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.^ A bona fide purchaser of a fraudulent 
 
 iCrockett v. Maguire, lo Mo'. 34. v. Baker, 88 Mo. 447, 4 West. 72. 
 
 SColeman v. Cocke, 6 Rand. 618, And see sections 266, 267 and 270, 
 
 18 Am. Dec. 757. ante. 
 
 SAyranlt v. Murphy, 54 N. Y. 203. SFones v. Rice, 9 Gratt. 568. 
 
 ^Wood V. Jackson, 8 Wend. 9; SMansfield v. Dyer, 131 Mass. 200. 
 
 Bentley v. Harris, 2 Gratt. 357; Hus- ^Griffin v. Wardlaw, Harp. Ch. 
 
 ton V. Cantril, 11 Leigh, 136; East 481; Imray v. Magnay, 11 M. & W. 
 
 India Co. v. Clavell, Gilb. 37, s. c. 267. 
 
 Free. Ch. 377, s. c. 28 L. J. Ch. 179; ^Ledyard v. Butler, 9 Paige, 132, 
 
 George v. Milbanke, 9 Ves. 189; 37 Am. Dec. 379; Brooks v. D'Or- 
 
 Martynz/. McNamara, 4 Dr. & War. ville, 7 Ben. 485; Sedgwick zi. Place, 
 
 411; Hopkirk». Randolph, 2 Brock. 12 Blatch. 163, s. c. 10 N. B. R. 28; 
 
 132; vide Stokes v. Jones, 18 Ala. Farmers' Nat'l Bank v. Teeter, 31 
 
 734, s. c. 21 Ala. 731; Miller v. Ohio St. 36; Moore v. Sexton, 30 
 
 Thompson, 3 Port. 196; O'Brien v. Gratt. 505; Stone z*. Bartlett, 46 Me. 
 
 Coulter, 2 Blackf. 421; Lionberger 438; Reynolds v. Park, 5 Lans. 149. 
 
498 BONA FIDE PURCHASEfiS FROM FRAUDULENT GRANTEE. 
 
 mortgage obtains a valid title as against creditors.^ If a 
 bona fide purchaser sells tlie 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.^ A purchaser with notice of the 
 fraud will get a good title when no debts contracted prior 
 to his purchase remain unpaid.^ A purchaser without 
 notice of the fraud may sell the property to a person who 
 has notice, for the law does not know of an unencumbered 
 estate which is forfeited by alienation, or for which the 
 owner can not pass a good title to a purchaser.* 
 
 § 600. 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 prop- 
 erty. He may therefore sell or mortgage it to the credit- 
 ors of the grantor. As between the debtor and the grantee 
 the power of the grantee to convey needs no recognition or 
 addition whatever, and his right to do so in favor of a 
 creditor is as between the parties to the transaction unques- 
 tionable. 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.° When- 
 ever the grantee does that which the law would compel him 
 to do, there is no reason for disturbing his act, and there- 
 fore if he applies it to pay the demand of a creditor, the 
 transfer will be good to that extent, because the property 
 receives the same direction and application which the law 
 would give it upon declaring the transfer void. The 
 
 ISleeper v. Chapman, 121 Mass. Wilson v. Ayre, 7 Me. 207; Evans 
 
 404; IvOgan V. Brick, 2 Del. Ch. 206; v. Nealis, 69 Ind. 148; Stewart v. 
 
 Smart v. Rement, 4 Abb. Ap. 253. Reed, 91 Penn. 287; Allison v. 
 
 Contra, Fleming v. Grafton, 54 Hogan, 12 Nev. 55. But when the 
 
 Miss. 79; Judge v. Vogel, 38 Mich, grantee of the bona fide ■purchase is 
 
 569. one of the original parties to the 
 
 2Spicer v. Robinson, 73 111. 519. fraud this rule does not apply. 
 
 SToole V. Darden', 6 Ired. Eq. 394. Church v. Church, 25 Pa. St. 278. 
 
 *Mateer v. Hissim, 3 Penna, 160; BWebb v. Brown, 3 Ohio St. 246. 
 
WHO ARE CREDITORS. 499 
 
 creditor moreover will receive a good title althougli 
 lie has full knowledge of the fraud.'- The creditor, 
 however, must act in good faith.^ If he takes an abso- 
 lute 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.' The transfer to the cred- 
 itor must moreover be made in the consummation of an hon- 
 est and laudable purpose on the part of the grantee. If it is 
 made not for the purpose of payment or security, but in 
 consideration of an assignment of the debt to him, it does 
 not come under the protection of the principle that per- 
 mits a creditor to obtain payment out of the property in 
 whosesoever hands it may be.* If the debtor takes a mort- 
 gage 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 con- 
 sideration.' 
 
 CHAPTER XVIII. 
 
 WHO ARE CREDITORS. 
 
 § 501. 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 ac- 
 tions, suits, debts, accounts, damages, penalties, forfeitures, 
 
 iBoyd V. Brown, 34 Mass. 453; Mon. 18; Brown z/. Webb, 20 Ohio, 
 
 Webb V. Brown, 3 Ohio St. 246; 389. 
 
 Stark ». Ward, 3 Penn. 328; Agri- SBakerw. Bliss, 39 N. Y. 70. 
 
 cultural Bank v. Dorsey, I Freem. ^Waggoner v. Cooley, 17 111. 239. 
 
 Ch. 338; Butler v. White, 25 Minn. 5De Witt v. Van Sickle, 29 N. J. 
 
 432; Murphy v. Moore, 30 N. Y. Eq. 209; National Bank v. Sprague, 
 
 Supr. 95; vide Waggoner v. Cooley, 21 N. J. Eq. 530; Johnston v. Dick, 
 
 17 111. 239; Jewett V. Cook, 81 111. 27 Miss. 277; vide Davis v. Gibbon, 
 
 260. 24 Iowa, 257. 
 
 SCopenheaver v. Huffacker, 6 B. 
 
500 WHO ARE CREDITORS. 
 
 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,^ or is founded upon an illegal consideration,^ 
 or which can not for any other reason be enforced,' 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 pro- 
 crastinate payment.* 
 
 § 502. Statute is Liberally Construed.— The statute by the 
 words "creditors and others" embraces others than those 
 who are strictly and technically creditors.^ Even the word 
 "creditor" does not receive a strict definition, for a party 
 who is not strictly speaking a creditor may stand in the 
 equity of a creditor and have an interest that may be 
 defrauded.® The statute protects all just and lawful 
 actions, suits, debts, accounts, damages, penalties and for- 
 feitures, and consequently all persons having such interests 
 must be included in the phrase "creditors and others."^ 
 It extends to every person having a legal demand against 
 another, whether the demand is one sounding in damages 
 or arises under a contract.^ 
 
 IBaker v. Gilman, 26; Townsend 2x2; Hook :-. Mowre, 17 Iowa, 195; 
 
 V. Tuttle, 28 N. J. Eq, 449- Harris r. Harris, 23 Gratt. 737. 
 
 SAlexander v. Gould, i Mass. JFeigley v. Feigley, 7 Md. 537; 
 
 165; Fuller V. Bean 30 N. H. Shontz : . Browu, 27 Penn. 123. 
 181; Hanson v. Power, 8 Daua, 91; «=J?honti r. Brown, 27 Penn. 123; 
 
 Bruggerman v. Hoerr, 7 Miuu. ^.^7. Hutchinson v. Kelly, i Rob. 123; 
 
 82 Am. Dec. 97. Walradt v. Brown, 1 Gilman, 397. 
 
 SHart V. Hart, 5 Watts, 106; Ed- TTwyne's Case, 3 Co. 80; a. c. 
 
 wardsz/. M'Gee, 31 Miss. 143; Ander- M^n^re. 638; Walradt z/. Brown, i 
 
 son V. Anderson, 64 Ala. 403. Gilmaii, 397; Alston v. Rowles, 13 
 
 *Brady v. Briscoe, 2 J. J. Marsh. Fla. 117. 
 
 SHarris v. Harris, 23 Gratt. 737. 
 
WHO ARE CREDITORS. 501 
 
 § 603. Character of Claim Immaterial. — The cliaracter 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. ^ The claim of a partner against his co-partner for 
 his share in the capital of the partnership is as fully pro- 
 tected as the claims of the creditors against the partner- 
 ship.^ The liability of a surviving partner to account for 
 the partnership property is ,a fixed present liability, and is 
 within the protection of the statute.^ A contingent claim 
 is as fully protected as one that is absolute.* A liability 
 as surety is within the statute as much as a liability as 
 principal.^ The statute embraces all pecuniary damages 
 incurred by reason of the obligation of a contract, whether 
 of an ascertained amount or only sounding in damages; 
 and whether actually asserted or only demandable.® It 
 extends to a liability arising from the embezzlement of 
 property entrusted to a party who sells it and appropriates 
 the proceeds to his own use.^ It includes voluntary bonds,^ 
 
 IHowe V. Ward, 4 Me. 195; Cook Carl v. Smith, 28 Leg. Int. 366; 
 
 z;. Johnson, 12 N. J. Eq. 51; Mott z/. Crane v. Stickles, 15 Vt. 253; 
 
 Danforth, 6 Watts, 304., Hutchinson v. Kelly, i Rob. 123, 
 
 swhite V. Russell, 49 111. 155; 39 Am. Dec. 250; Curd v. Lewis, 7 
 
 Swan V. Smith, 57 Miss. 548. Gratt. 185; Gibson v. Love, 4 Fla. 
 
 SAlston V. Rowles, 13 Fla. 117. 217; Bay v. Cook, 31 111. 336. 
 
 ^Seward v. Jackson, 8 Cow. 406, ^Hutchinson v. Kelly, i Rob. 123, 
 
 s. c. 5 Cow. 67, s. c. sub nom. Van 39 Am. Dec. 250. 
 
 Wyck V. Seward, 18 Wend. 365, s. 7Pendleton v. Hughes, 65 Barb. 
 
 c. 6 Paige, 62, s. c. i Edw. 327; 136. 
 
 Shontz V. Brown, 27 Penn. 123; Mc- SAdames v. Hallett, L. R. 6 Eq. 
 
 Laughlin v. Bank of Potomac, 7 468; Hanson v. Buckner, 4 Dana, 
 
 How; 220; Woodley v. Abby, 5 Call. 251, 29 Am. Dec. 401. 
 
 336; Gannard v. Eslava, 20 Ala. 732; In Adames v. Hallett, a man gave 
 
 Bayz/. Cook, 31 111. 336; Cook v. a/oj^ i>*«Vbond to his daughter-in- 
 
 Johnson, 12 N.J. Eq. 51; Manhat- law securing to her an annuity for 
 
 tan Co. V. Osgood, 15 Johns. 162; s. life, and shortly afterwards exe- 
 
 c. 3 Cow. 612; Bibb V. Freeman, 59 cuted a voluntary transfer of most 
 
 Ala. 512; Fearn v. Ward, 65 Ala. 33; of his property. After his death 
 
 Young V. Heermans, 66 N. Y. 374; the voluntary transfer was set 
 
 Post V. Stiger, 29 N. J. Eq. 558. aside at the instance of the daugh- 
 
 BRussell V. Stinson, 3 Heyw. i; ter-in-law. 
 
502 
 
 WHO ARE CREDITORS. 
 
 claims for taxes,' and claims which are payable after the 
 decease of the debtor.^ Its protection extends to an action 
 for slander,^ or a tort/ a breach of a promise to marry,^ 
 the support of a bastard child,^ a false representation/ a 
 ■demand or forfeiture due to the state for offenses,® and a 
 olaim for usurious interest.^ 
 
 § 504. Feme Covert and Others. — The claim of a feme covei-t 
 against her husband under a marriage settlement,'" or in 
 proceedings instituted to obtain a divorce and alimony,'' is 
 
 IStimson v. Wrigley, 86 N. Y. 
 
 33^- 
 
 SAdames v. Hallett, L. R. 6 Eq. 
 468; Rider v. Kidder, 10 Ves. 360; 
 s. c. 12 Ves. 202, 13 Ves. 123; vide 
 Henderson v. Dodd, i Bailey Ch. 
 1.^8. 
 
 sjackson v. Myers, 18 Johns. 425; 
 Lillard v. McGee, 4 Bibb. 165; Hord 
 V. Rust, 4 Bibb. 231; Fowler v. 
 Frisbie, 3 Conn; 320; Walradt v. 
 Brown, i Oilman, 397, 41 Am. Dec. 
 190; Hall V. Sands, 52 Me. 355; 
 Langford v. Ply,_ 7 Humpb. 585; 
 Johnson v. Brandis, i Smith, 263; 
 Wright V. Brandis, i Ind. 336; 
 Farnsworth v. Bell, 5 Sneed, 531; 
 Rogers z/. Evans, 3 Ind. 574, 56 Am. 
 Dec. 537; Shean v. Shay, 42 Ind. 
 375. 13 Am. Rep. 366; Cooke v. 
 Cooke, 43 Md. 522. 
 
 *Jackson v. Mather, 7 Cow. 301; 
 Paul V. Crooker, 8 N. H. 288; Mcl/can 
 V. Morgan, 3 B. Mon. 282; Lewkner 
 V. Freeman, i Eq. Cas. Abr. 149, s. 
 c. 2Freem. 236; s. c. i Free. Ch. 105; 
 M'Erwiu V, Benning, 1 Hawks, 474; 
 Fox V. Hills, I Conn. 295; Greer v. 
 Wright, 6 Gratt. 154, 52 Am. Dec. 
 111; Wilcox V. Fitch, 20 Johns. 472; 
 Foote V. Cobb, i8 Ala. 585; Patrick 
 V. Ford, 5 Sneed, 532, note; Vance 
 V. Smith, 2 Heisk. 343; Barling v. 
 Bishop, 29 Beav. 417; Corder v. 
 Williams, 40 Iowa, 582; Scott v. 
 Hartman, 26 N. J. Eq. 89; Martin v. 
 Walker, 19 N. Y. Supr. 46; Bongard 
 
 V. Block, 81 111. 186, 25 Am. Rep, 
 276; Westmoreland v. Powell, 59 
 Geo. 256. Contra, in Vermont, 
 Green v. Adams, 69 Vt. 602, 59 Am. 
 Rep. 761. 
 
 5IvOwry V. Pinson, 2 Bailey, 324, 
 23 Am. Dec. 140; Smith v. Cnlbert- 
 son, 9 Rich. 106; Hoffman v. Junk, 
 51 Wis. 613, 8 N. W. 493- 
 
 SDamon v. Bryant, 19- Mass. 411; 
 Schuster v. Stout, 30 Kans. 529, 2 
 Pac. 642; Pierstoff v. Jorges, 86 Wis. 
 128, 39 Am. St. Rep. 881, 56 N. W. 
 735. And a claim for seduction is 
 within the statute. Hunsinger v. 
 Hofer, no Ind. 390, 11 N. E. 463. 
 
 7Miner z*., Warner, 2 Grant, 448, 
 s. c. 2 Phila. 124. 
 
 8Rex V. Nottingham, Lane, 42; 
 State V. Fife, 2 Bailey, 337; Jones v. 
 Ashurst, Skin. 357; More wood v. 
 Wilkes, 6 C. & P. 144; Shaw v. 
 Bran, i Stark. 319; Sanders v. War- 
 ton, 32 L. J, Ch. 224, s. c. I N. B. R. 
 256; Perkins v. Bradley, i Hare, 
 219, s. c. 6 Jur. 254. 
 
 9Heath v. Page, 63 Penn. 280, 3 
 Am. Rep. 533. 
 
 lORider v. Kidder, 10 Ves. 360, s. 
 c. 12 Ves. 202, 13 Ves. 123. See sec- 
 tion 274 ante. 
 
 iiFeigley v. Feigley, 7 Md. 537, 61 
 Am. Dec. 375; Blenkinsopp v. 
 Blenkinsopp, 1 De G. M. & 
 G. 495, s. c. 12 Beav. 568, 
 s. c. 21 L. J. Ch. 404; Taylor v. 
 Wyld, 8 Beav. 159; Claggett v. Gib- 
 
"WHO AKB CREDITORS. 
 
 503 
 
 within tlie 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.^ An heir 
 can not fraudulently alien assets which have descended for 
 the purpose of defeating his liability for the debts of his 
 ancestor.^ A transfer for the purpose of defeating a 
 sequestration,^ or an attachment,* is as fraudulent as a 
 transfer to defeat an execution. The responsibility for the 
 acts of a partner,^ or of the principal to whom an accom- 
 modation indorser lends his name® 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 ijx- 
 tended not only of a forfeiture of an obligation, recognis- 
 ance, or such like, but to everything which shall by law be 
 forfeit to the king or subject. Therefore if a man, to pre- 
 vent a forfeiture for felony or by outlawry, makes a con- 
 
 son, 3 Crancli C. C. 359; Boils v. 
 Boils, I Cold. 284; Brooks v. Caugh- 
 raa, 3 Head, 464; Ruffing v. Tilton, 
 12 Ind. 259; Livermore v. Boutelle, 
 77 Mass. 217, 71 Am. Dec. 708; Tur- 
 ner V. Turner, 44 Ala. 437; Morri- 
 son, 49 N. H. 69; Frakes v. Brown, 
 2 Black. 295; Chase v. Chase, 105 
 Mass. 385; Boughslongh v. Bough- 
 slough, 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, lu Heisk. 
 546; Dugan V. Frisler, 69 Ind. 553; 
 Tyler v. Tyler, 126 111. 525, 9 Am. 
 St. Rep. 642, 21 N. E. 616; Weber 
 2/. Rothchild, 15 Ore. 385, 3 Am. St. 
 Rep. 162, 15 Pac. 650; Pickett v. 
 Garrison, 76 Iowa, 347, 14 Am. St. 
 Rep. 220, 41 N. W. 38; Foster v. 
 Foster, 56 Vt. 540. 
 
 "While it is true that a claim for 
 alimony is not a debt within the 
 ordinary meaning of that term, and 
 that it must be ascertained and al- 
 lowed according to equitable prin- 
 ciples, yet it is also true that it is a 
 jright, contingent to some extent, 
 which becomes vested with the 
 
 right to a divorce. It can no more 
 be defeated by a fraudulent convey- 
 ance than it could be if it were 
 fixed and certain as to amount." 
 Pickett v. Garrison, supra. 
 
 iMarcy v. Clark, 17 Mass. 330. 
 
 2Gooch's Case, 5 Co. 60; Leonard 
 V. Bacon, Cro. Eliz. 234; Apharry v. 
 Bodingham, Cro. Fliz. 350; Richar^* 
 son V. Horton, 7 Beav. 112; Hetfield 
 V. Jacques, 10 N. J. 259. 
 
 SHamblyn v. Ley, 3 Swanst, 301, 
 n.; Coulston v. Gardiner, 3 Swanst. 
 279; Empringham v. Short, 3 Hare, 
 461. 
 
 iPendleton & Gunston's Case, i 
 Leon, 47; Getzler v. Saroni, x8 111. 
 511; Dixon V. Hill, 5 Mich. 404; 
 Rinchey v. Stryker, 26 How. Pr. 75, 
 28 N. Y. 45, 84 Am. Dec. 324; Van 
 Kirk V. Wilds, 11 Barb. 520; Thayer 
 V. Willett, 9 Abb. Pr. 325, s. c. 5 
 Bosw. 344; Swanzey v. Hunt, 2 N. 
 & M. 211. Contra, Hall v. Stryker, 
 9 Abb. Pr. 342, s. c. 29 Barb. 105; 
 Bentley v. Goodwin, 15 Abb. Pr. 82. 
 
 BThomson v. Dougherty, 12 S. & 
 R. 448- 
 
 8Cook V. Johnson, 12 N. J. Eq. 51. 
 
B04 WHO ARE CREDITORS. 
 
 veyanoe of all liis goods and afterwards is attainted or out- 
 lawed, the j^ooda are forfeited notwithstanding the convey- 
 ance.^ 
 
 § r»(»r>. Right not Personal. — A creditor cannot treat a 
 transfer as void except as to his demand. If that is paid, 
 he is not doomed to be a creditor as to a subsequent debt.® 
 The right howovor is not merely personal. If a creditor 
 transfers his olaiiu. he cannot impeach it any longer on the 
 ground of fvfvud. Bat as to the demand or any suitthereon* 
 until paid or discharged, such a transfer is utterly void. 
 Whoovor may become the owner of the debt can enforce it 
 agniust the pvoporty.* The transfer is void not only against 
 oroditoi's, but against those who represent creditors. It is 
 void as ajiainst sheriffs,^ purchasers at a sale under an exe- 
 outiou,'^ assignees in bankruptcy,® and receivers appointed 
 in proooodiugs supplemental to an execution.' 
 
 § 506. At what Time the Demand Accrues. — ^The distinction 
 
 botweeu 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 dumswMcdi 
 
 iTwyn^'s Cas«. j; Co. >o. s. c. i4^r:Xo!i-vT?t r. Boffiager, Z5 la- An. 
 &lo(Nt«. ^^^^. 293; Shackldfocd v- Col 
 
 SRobbiss r. Sackett, 2^ Kans. 149; G-l^isrj 7. BiB, o at. x W. 
 
 JOI. 5oi- ^P"*** ~- rovii3a:-:ffl:. 2 Call. t5; 
 
 *\Vs«wii p. WiU-itu*. 5.: Me. ^u^: Botcher r. Hirr-jcct. j. B. i A. 129; 
 
 Cwjk V. l.i§s--x. >t Miss. c-ji. JaiaisoB r. C&RJatoMfc . S Xd- >i.; 
 
 *T\-.rvu r. Tapper, Latch, iii: Bcad^isT r. S;<s:i. t S- B. S. 512. 
 
 Sclilttss*; r. Williftt. ^Baurb. etj. s. s. c i Bfes. .k; ::» -:r ¥>«s. r S. B- 
 
 c. li AWk Ft. ^iM7- *- >J- -- How. Pr. R. jSt. s. c. i 3tet. i:.i_. ?• '» ^ 
 
 In; Hoeey p. BachaBaa. 16 Ifct. Jt^; g«-. 2 S. 5^ S. ,555 Ttms r. BoiSStt. 
 
 C'.tit* r. fitch, ij Bart^. 4.:c?: Pieice ^:^ Fe-rt. ^iS. J^w^n*. 3.«i'?ts y. 
 
 p. JiCisoBk*? Msss. 241: InuaT ?, Garaer. ri ,Cj. j-^; "Wieen> :-. Tiea.- 
 
 Hil-lfix. - SI. & W. ;:<*;. rv==er„ ; *.*: AaE. :^ s« sae- 
 
 iCote 7. "WTrite. 16 Wend. 5::. *. c. doi tjcrv xna^., aswe- 
 at"W«*d.iK;Biirrr.Hatch. 5 0*1©. ~5o^r*-^A T- !<.':t^i sa- JSA-St 
 
 ■^Baijger Jr. ^c-t;.-. ;~ N. H- i:S<; 5. c n Hj««. ^ W- ^>W*. ^r- 
 
 CiTT 7- EEEtna. I Cur:, i^i^. ^goc M S. Y. 5^- 3c 'S T". .iCrt H4^•3e^ 
 
WHO ARE CREDITORS. 
 
 505 
 
 arise from contract are in force from tlie date of the 
 agreement. The liability dates from that time, although 
 no demand accrues until a subsequent date.^ A covenant 
 with a general warranty,^ a bond of conveyance,* and the 
 bond of an administrator,* take effect from the date of the 
 instrument. A surety is subrogated to all the rights of 
 the creditor whose claim he has paid.^ An endorser has 
 the same rights as the holder of a note.^ The claim of a 
 surety against either the principal,' or his co-surety^ 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.^ The claim of a principal against his agent 
 arises as soon as the agent receives the money or property 
 of the principal.^" The liability of a surviving partner 
 
 ISeward v. Jackson, 8 Cow. 406, 
 s. c. 5 Cow. 67; Van Wyck v. Sew- 
 ard, 18 Wend. 375, s. c. 6 Paige, 62; 
 s. c. I Edw. 327; Gannardz;. Eslava, 
 20 Ala. 732; Black v. Cad well, 4 
 Jones, (N. C.) 150; Stone v. Myers, 
 9 Minn. 303, 86 Am. Dec. 104; White 
 V. Sansom, 3 Atk. 410; East India 
 Co. V. Clavell, Gilb. 37, s. c. Free. 
 Ch. 377, s. c. 28 L. J. Ch. 719; 
 Richardson v. Smallwood, Jac. 552, 
 s. c. I Cond. Ch. 262; Mountford v. 
 Ranie, 2 Keble, 499; Wooldridge v. 
 Gage, 68 111. 157; Mattingly v. 
 Wulke, 2 Bradw. 169; vide Pales v. 
 Thompson, i Mass. 134; Bridgford 
 V. Riddell, 55 111. 261; U. S. v. 
 Steiner, 8 Blatch. 544; Green v. 
 Adams, 59 Vt. 602, 59 Am. Rep. 
 761. 
 
 2Gannard 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. i 
 Edw. 327; Rhodes v. Green, 36 Ind. 
 7; vide Bridgford v. Riddell, 55 111. 
 261. 
 
 S<Stone V. Myers, 9 Minn. 303, 86 
 Am. Dec. 104. 
 
 ^Anderson v. Anderson, 64 Ala. 
 403. 
 
 SCato V. Easley, 2 Stew. 214;, 
 Sargent v. Salmond, 27 Me. 539;^ 
 Choteau v. Jones, 11 111. 301; 
 Greene v. Starnes, i Heisk. 582; 
 Hurdt >. Courtenay, 4 Met. (Ky.) 
 139; Taylor v. Heriot, 4 Dessau. 227; 
 Huston V. Cantrill, 11 Leigh, 136; 
 Swindersihe v. Miscally, i Bailey 
 Ch. 304; Heighe v. Partners' Bank, 
 5 H. & J. 68; Highland v. Highland, 
 5 W. Va. 63. 
 
 SCramer v. Reford,. 17 N. J. Eq. 
 367, 90 Am. Dec. 594; Primrose v. 
 Browning, 56 Geo. 369^ 
 
 ^Thompson v. Thompson, 19 Me. 
 244, 36 Am. Dec. 751; Carlisle v. 
 Rich, 8 N. H. 44; H-atfield v. Mer- 
 cer, 82 111. 113. 
 
 SHowe V. Ward, 4 Me. 195; Sar- 
 gent V. Salmond, 27 Me. 539; Ray- 
 mond V. Cook, 31 Tex. 373; Craw- 
 ford V. Kirksey, 50 Ala. 591 ; Smith 
 V. Rumsey, 33 Mich. 183. 
 
 9Martin v. Walker, 19 N. Y. Supr. 
 46. 
 
 lOYoung V. Heermans, 66 N. Y. 
 374- 
 
S06 WHO ABB CREDITORS. 
 
 dates from the death of the co-partner and the assump- 
 tion of the effects of the firm by him.^ A demand arising 
 from a tort is in force from the time of the commission of 
 the wrong.^ A trustee becomes a debtor as soon as he 
 receives the trust fund.^ The claim of a residuary legatee 
 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.* An accommodation note 
 dated anterior to the transfer, though discounted subse- 
 quently, is regarded as a prior claim. ^ A judgment for 
 costs takes effect only from the rendition of the judgment.® 
 A judgment for a prior and subsequent demand is a sub- 
 sequent debt, for it can not be apportioned.^ 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.^ 
 
 § 507. Evidence to Antedate Claim. — A judgment is prima 
 facie a claim only from the institution of the suit.® The 
 legal presumption is that a note is executed by the maker 
 at the date upon its face,^" and that an indorsement was 
 made before the maturity of the note.^^ In the absence of 
 
 lAlston V. Rowles, 13 Fla. 117. Hoffman, 35 111. 553; Quimby v. 
 
 2Walradt v. Brown, i Oilman, Dill, 40 Me. 528; French v. Holmes, 
 
 397, 41 Am. Dec. 190; Ivangford v. 67 Me. 186. Contra, Ecker v. Laf- 
 
 Fly, 7 Humph. 585; Farnswortli v. ferty, 20 Pitts. L. J. 135; Henderson 
 
 Bell, 5 Sneed, 531; Miller v. Dayton, v. Henderson, 133 Penn. St. 339, 19 
 
 47 Iowa, 312; vide Meserve v. Dyer, Am. St. Rep. 650, 19 Atl. 424; these 
 
 4 Me. 52; Slater v. Sherman, 5 Bush. cases holding that the judgment is 
 
 206; Fowler v. Frisbie, 3 Conn. 320; a lien on the property for the 
 
 Ford V. Johnston, 14 N. Y. Supr. amount of the debt contracted be- 
 
 563; Evans v. I/ewis, 30 Ohio St. 11. fore the fraudulent conveyance. 
 
 SMcIvemore v. Nuckolls, 37 Ala. spairbanks v. Benjamin, 50 Vt. 
 
 662. 
 
 99. 
 
 ^Sodeni-. Soden,34N.J. Eq. 115. SMiller v. Johnson, 27 Md. 6; 
 
 5Williams v. Banks, 11 Md. 198, White v. Beltis, 9 Heisk. 645; Mar- 
 
 «• c- 19 Md. 22. shall v. Croom, 60 Ala. 121. " 
 
 epelham v. Aldrich, 74 Mass. 515; lOWilliams v. Banks, 11 Md. 198, 
 
 Ogden V. Prentice, 33 Barb. 160. s. c. 19 Md. 22; Emery v. Vinall, 26 
 
 7Baker v. Oilman, 52 Barb. 26; Me. 295. 
 
 Reed v. Woodman, 4 Me. 400; "McDowell v. Goldsmith, 6 Md. 
 
 Usher v. Hazeltine, 5 Me. 471, 17 319, s. c. 2 Md. Ch. 370, s. c. 24 Md. 
 
 Am. Dec. 253; Miller v. Miller, 23 214, 61 Am. Dec. 305. 
 Me. 22, 39 Am. Dec. 597; Moritz v. 
 
CONFLICT OP LAWS — THE LEX LOCI. 507 
 
 proof the origin of a debt is referred to the date of the 
 note.^ 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 judgment is founded upon a prior claim.* 
 A note may be shown to be given for a prior account,^ or 
 in renewal of a prior note.* A novation does not affect 
 the rights under the debt.^ A renewal by which a liability 
 is created different from that created by the original debt 
 is a new debt.** 
 
 CHAPTER XIX. 
 
 CONFLICT OP LAWS— THE LEX LOCI. 
 
 § 508. Lex Loci. — The validity of an instrument convey- 
 ing property is to be determined according to the laws of 
 the place where it is made.^ If it is invalid by those laws, 
 it will not be valid anywhere.^ Questions of evidence per- 
 tain to the remedy and are decided by the lex fori. Fraud 
 may therefore be inferred from facts which would not be 
 
 IJohnston v. Zane, ii Gratt. 552. SGardner v. Baker, 25 Iowa, 343. 
 
 2Hindes v. Longworth, 11 Wheat. BBank v. Marchand, 2 T. U. P. 
 
 199; Harlan v. Barnes, 5 Dana, 219; Charlt. 247. 
 
 Williams z/. Jones, 2 Ala. 314; Chand- ^Martin v. Hill, 12 Barb. 631; 
 
 ler V. Van Roeder, 24 How. 224. Fairbanks v. Bloomfield, 5 Duer, 
 
 SMoore v. Spence, 6 Ala. 506; 434; Balto. & Ohio R. R. Co. v. 
 
 Blue V. Penniston, 27 Mo. 272; Cook Glenn, 28 Md. 287, 92 Am. Dec. 688; 
 
 V. Ligon, 54 Miss. 652; Stout v. French v. Hall, 9 N. H. r37, 32 Am. 
 
 Stout, 77 Ind. 537; vide Bangor v. Dec. 341; Livermore z/. Jenckes, 21 
 
 Warren, 34 Me. 324, 56 Am. Dec. How. 126; Barton v. Bolton, 3 
 
 657; Eigleberger v. Kibler, i Hill Phila. 369. 
 
 Ch. 113, 26 Am. Dec. 192; Morsell Spellows v. Commercial Bank, 6 
 
 V. Baden, 22 Md. 391. Rob. (La.) ?46; Graves v. Roy, 14 
 
 IMcLaughlin v. Bank of Poto- La. 454, 33 Am. Dec. 568; Maberry 
 
 mac, 7 How. 220; Lowry v. Fisher, v. Shisler, i Harring. 349. 
 2 Bush. 70, 92 Am. Dec. 475; Lee v. 
 HoUister, 5 Fed. Rep. 750. 
 
508 CONFLICT OF LAWS — THE LEX LOCI. 
 
 conclusive in the state where the instrument was executed.^ 
 A sale in an adjoining state to which the property has. 
 been removed for the purpose of evading an execution will 
 not purify the fraud.^ 
 
 § 609. land.— The title or disposition of real estate i» 
 exclusively subject to the laws of the country where the 
 land is located, and a conveyance of it must conform to 
 those laws.^ The courts of one state have no jurisdiction 
 or authority to set aside a fraudulent conveyance of land 
 situate in another state.^ 
 
 § 510. Personal Property. — It is one of the maxims of in- 
 ternational jurisprudence that personal property as a rule 
 has no situs, but appertains to the person of the owner, and 
 that, as a consequence, such owner can 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 hap- 
 pen to be. The principle that personal effects have no 
 locality arises out of the necessities of trade. It is accord- 
 
 iBarton v. Bolton, 3 Phila. 369. Nicholson v. Leavitt, 4 Sandf. 252, 
 
 2Watts V. Kilburn, 7 Geo. 356. s. c. 6 N. Y. 510, s. c. 10 N. Y. 591, 
 
 SOsborn ». Adams, 35 Mass. 245; 57 Am. Dec. 499; vide D'lvernois z/. 
 
 Bentley z/. Whittemore, 19N.J. Eq. Leavitt, 23 Barb. 63; Chipman v. 
 
 462, 97 Am. Dec. 671; Lamb v. Peabody, 159 Mass. 420, 38 Am. St. 
 
 Fries, 2 Penn. 83; Evans v. Dunk- Rep. 437, 34 N. E. 563; Moore v. 
 
 elberger, 3 Grant, 134; Gardner v. Church, 70 Iowa 208, 59 Am. Rep. 
 
 Commercial Bank, 95 111. J98; First 439, 30 N. W. 855; Walters v. Whit- 
 
 Nat'l Bank v. Hughes, 10 Mo. Ap. 7. lock, 9 Fla, 86, 76 Am. Dec. 607. 
 (•Fetter :/. Cirode, 4 B. Mon. 482: 
 
CONFLICT OP LAWS — THE LEX LOCI. 
 
 509 
 
 ingly held almost universally that an assignment or trans- 
 fer valid by the laws of the state where it is made will be 
 upheld everywhere.^ A debt has no situs and is deemed in 
 contemplation of law to be attached to and to follow the 
 person of the creditor.^ 
 
 § 511. 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 trans- 
 fer as may be deemed necessary to protect and secure its 
 own citizens from imposition and fraud. And if such regu- 
 lations are adopted in conflict with the general rule, they 
 
 INoble V. Smith, 6 R. I. 446; 
 Moore v. Willett, 35 Barb. 663; Van 
 Buskirk v. Warren, 39 N. Y. 119, s. 
 c. 34 Barb. 457, 3. c. 13 Abb. Pr. 
 145, s. c. 4 Abb. Ap. 457; Cage v. 
 Wells, 7 Humph. 195; Fairbanks Z). 
 Bloomfield, 5 Duer, 434; Ackerman 
 •V. Cross, 40 Barb. 465; Richardson 
 2/. Leavitt, i La. An. 430, 45 Am. 
 Dec. 90; Caskie v. Webster, 2 Wall. 
 Jr. 131; Law z*. Mills, 18 Penn. 185, 
 Speed V. May, 17 Penn. 91, 55 Am. 
 Dec. 540; Frazier v. Fredericks, 24 
 N. J. 162; Russell V. Tunno, 11 
 Rich. 303, Robinson v. Rapeleye, 2 
 Stew. 86; U. 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, 78 Am. Dec. 586; 
 Walters v. Whitlock, 9 Fla. 86, 76 
 Am. Dee. 607; Dundas v. Bowler, 3 
 McLean, 397; Houston v. Nowland, 
 
 7 G. &. J. 480; Means v. Hapgood, 
 36 Mass. 105; Greene v. Mowry, 2 
 Bailey, 163; West v. Tupper, i 
 
 Bailey, 193; Ferguson v. Clifford, 37 
 N. H. 86; Livermore v. Jenckes, 21 
 How. 126; Born v. Shaw, 29 Penn. 
 2B8, 72 Am. Dec. 633; Balto. & Ohio 
 R. R. Co. V. Hoge, 34 Penn. 214; 
 Chaffee v. Fourth Nat'l Bank, 71 
 Me. 514, 36 Am. Rep. 345; 
 vide Woodward v. Gates, 9 Vt. 
 358; Fishborne v. Kunhardt, 2 
 Spears, 556; Golden v. Cockril, i 
 Kans. 259; Ingraham v. Geyer, 13 
 Mass. 146, 7 Am. Dec. 132; >Fox ». 
 Adams, 5 Me. 245; The Watchman, 
 1 Ware, 232; Weinstein v. Freyer, 
 93 Ala. 257, 12 L. R. A. 700, 9 So. 
 285; Bacon v. Home, 123 Pa. 452, 2 
 L. R. A., 355, 16 Atl. 794; Barth v. 
 Backus, 67 Hun 653, 22 N. Y. Supp. 
 460; jEar parte Dickinson, 29 S. C. 
 453, 13 Am. St. Rep. 749, 7 S. E. 
 593; Warner v. Jaffray, 96 N. Y. 
 248, 48 Am. Rep. 616. But see next 
 section and notes. 
 
 2Atwood V. Protection Ins. Co., 
 14 Conn. 555 ; Sanderson v. Brad- 
 ford, 10 N. H. 260; Caskie v. Web- 
 ster, 2 Wall. Jr. 131; Walters v. 
 Whitlock 9 Fla. 86, 76 Am. Dec. 
 607. 
 
510 
 
 CONFLICT OF LAWS — THE LEX LOCI. 
 
 will prevail.^ But a construction should not be hastily 
 given which would lead to a conflict if an interpretation can 
 be fairly made to avoid it, or, in other words, there should 
 be a clear and manifest repugnance between them to justify 
 the courts to disregard the general rule which is respected 
 and regarded by all civilized nations upon the principles of 
 comity. The peace and harmony among states and nations,. 
 
 iZipcey v. Thompson, 67 Mass. 
 243; Ingraham v. Geyer, 13 Mass. 
 146, 7 Am. Dec. 132; Fall River 
 Ironworks Co. v. Croade, 32 Mass. 
 11; Boyd V. Rockport Mills, 73 Mass. 
 406; Varnum v. Camp, 13 N. J. 326, 
 
 25 Am. Dec. 476; Richmondville 
 Manuf. Co. v. Pratt, 9 Conn. 487; 
 Bryan v. Brisbin, 26 Mo. 423, 72 
 Am. Dec. 219; Beirne v. Patten, 17 
 La. 589; Strieker v. Tiukham, 35 
 Geo. 176, 89 Am. Dec. 280; Guillan- 
 der V. Howell, 35 N. Y. 657; Han- 
 ford V. Paine, 32 Vt. 442, 78 Am. 
 Dec. 586; Ramsey^ z;. Stevenson, 5 
 Martin, 23, 12 Am. Dec. 468; Rice v. 
 Courtis, 32 Vt. 460, 78 Am. Dec. 
 597; Paine v. Lester, 44 Conn. 196, 
 
 26 Am. Rep. 442; May v. First Na- 
 tional Bank of Attleboro, 122 111. 
 551, 13 N. E. 806; Moore v. Church, 
 70 Iowa 208, 59 Am. Rep. 439, 30 N. 
 W. 855; Pierce v. O'Brien, 129 Mass. 
 314) 3/Am. Rep. 360; In re Dalplay, 
 41 Minn. 532, 16 Am. St. Rep. 729, 6 
 L. R. A. 108, 43 N. W. 564; Kelly z/. 
 Crapo, 45 N. Y. 86, 6 Am. Rep. 35; 
 Warner v. Jaffray, 96 N. Y. 248, 48 
 Am. Rep. 6i6; Ex parteTi\c}s.\r\&on, 
 29 S. C. 453, 13 Am. St. Rep. 749, 
 7 S. E. 593; Hoover v. R. I. Loc. 
 Works, 93 U. S. 664; McClure v. 
 Campbell, 71 Wis. 350, 5 Am. St. 
 Rep. 220, 37 N. W. 343. 
 
 It is the policy of some jurisdic- 
 tions, independently of statute, to 
 prefer domestic creditors to a 
 foreign assignee. In those juris- 
 dictions, therefore, an assignment 
 made in another state will not be 
 
 enforced to the prejudice of domes- 
 tic creditors, even though it violates 
 no local law. Woodward z/. Brooks, 
 128 111. 222, 20 N. E. 685, 3 L. R. A. 
 702, 15 Am. St. Rep. 105; Consoli- 
 dated Tank Line Co. v. Collier, 14S 
 111. 259, 39 Am. St. Rep. 181, 35 N. 
 E. 756; Hayden v. Yale, 45 La. Ann. 
 362, 40 Am. St. Rep. 232, 12 So. 633. 
 
 Most jurisdictions, however, in- 
 cline to the rule enunciated in 
 Hibernia National Bank v. Lacombe 
 84 N. Y. 367, 38 Am. Rep. 518, as- 
 follows: "The plaintiff, as we have 
 seen, although a foreign creditor, is 
 rightfully in our courts pursuing a 
 remedy given by our statutes. It 
 may enforce the remedy to the same 
 extent and in the same manner, and 
 with the same priority, as a citizen. 
 
 • • ■ • Once properly in court 
 and accepted as a suitor, neither the 
 law nor the court administering the 
 law will admit any distinction be- 
 tween the citizen of its own state 
 and that of another. Before the 
 law, and in its tribunals, there can 
 be no preference of one over the 
 other." 
 
 An assignment, made in one 
 state is admissible in evidence in 
 another state to show the existence 
 of the debts, although it is not 
 executed in accordance with the 
 law of the jurisdiction where it is 
 offered in evidence. Birdseye v. 
 Underhill (Birdseye v. Baker), 82 
 Ga. 142, 14 Am. St. Rep. 142, 2 L. 
 R. A. 99, 7 S. E. 863. 
 
CONFLICT OF LAWS — THE LEX LOCI. 511 
 
 and tlie 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.^ 
 Even when a transfer is invalid by the laws of the state 
 where the property is located, it will, if valid by the laws 
 of the state where it is made, be binding upon the citizens 
 of that state,^ and all others except the citizens of the state 
 for whose protection the laws were passed.* Citizens of 
 such state who purchase claims after the transfer have only 
 such rights as their vendor had.* If a transfer is valid by 
 the laws of the state where it is made, and in which the 
 property is located, it will be valid everywhere.' 
 
 § 512. Notice to Debtor. — In the case of an assignment of 
 a debt, notice is necessary to charge the debtor with the 
 duty of payment to the assignee, and if without notice he 
 pays the debt to the assignor or it is recovered by process 
 against him, he will be discharged from the debt. Notice 
 after attachment and prior to a recovery is sufficient. * 
 
 § 513. Presumption of Forei£;n Law.^When there is no 
 evidence of what the foreign law is, it will be assumed to 
 
 lU. S. Bank v. Huth, 4 B. Mon. Mass. 105; Jones v. Taylor, 30 Vt. 
 
 423; Hanford v. Paine, 32 Vt. 442, 42; Forbes v. Scannell, 13 Cal. 242; 
 
 78 Am. Dec. 586. Goddard v. Winthrop, 74 Mass. 180; 
 
 ^Benedict v. Parmenter, 78 Mass. Benedict v. Parmenter, 78 Mass. 
 
 88; Whipple v. Thayer, 33 Mass. 25, 88; Varnum v. Camp, 13 N. J. 326, 
 
 26 Am. Dec. 626; Daniels v. Wil- 25 Am. Dec. 476; Ballard v. Winter, 
 
 lard, 33 Mass. 36; Burlockz'. Taylor, 40 Conn. 179; Thuret v. Jenkins, 7 
 
 33 Mass, 335; Moore ». Bonnell, 31 Martin, 318, 12 Am. Dec. 508; Cobb z/. 
 
 N. J. 90; Mayberry v. Shister, i Buswell, 37 Vt. 337; vide Skiff v. 
 
 Harring. 349. Solace, 23 Vt. 279; Montgomery v. 
 
 STodd v.. Bucknam, 11 Me. 41; Wright, 8 Mich. 143; M'Kaig v. 
 
 Sanderson v. Bradford, 10 N. H. Jones, 6 Penn. 425. 
 260; Forbes v. Scannell, 13 Cal. 242; SMowry v. Crocker, 6 Wis. 336; 
 
 vide Brown v. Knox, 6 Mo. 302. Noble v. Smith, 6 R. I. 446; Martin 
 
 ^Richardson v. Forepaugh, 73 v. Potter, 77 Mass. 37, 71 Am. Dec. 
 
 Mass. 546; Hunt v. Lathrop, 7 R. I. 689; Walters v. Whitlock, 9 Fla. 86; 
 
 58; Todd V. Bucknam, 11 Me. 41. Bank v. Gettinger, 3 W. Va. 309; 
 
 SReid V. Gray, 37 Penn. 508, 78 vide Rice v. Courtis, 32 Vt. 460, 78 
 
 Am. Dec. 444; Newman v. Bagley, Am. Dec. 597. And see sections 
 
 33 Mass. 570; Wales v. Alden, 39 183 and 184, ante. 
 Mass. 245; Means v. Hapgood, 36 
 
612 EXECUTIONS, JUDGMENTS AND ATTACHMENTS. 
 
 ■be the same as that which governs the tribunal where the 
 question arises.^ 
 
 CHAPTBE XX. 
 EXECUTIONS, JUDGMENTS AND ATTACHMENTS. 
 
 § 514. DiTerting Execution From Legitimate Purpose.— 
 
 The statute avoids all executions issued or kept on foot 
 with intent to delay, hinder, or defraud creditors."'* 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 
 •oflBcer 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.* 
 It is a creature of the law prepared as a means of enforc- 
 ing 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.* Consequently, after he has sued out an 
 execution, he is bound to be both prompt and honest in 
 the steps he takes to enforce it. 
 
 iRussell V. Tunno, ii Rich. 303; ssnyderw. Kunkleman, 3 Penna. 
 
 Beirne v. Patton, 17 I,a. 589; Hurdt 487; Burnell v. Johnson, 9 Johns. 
 
 V. Courtenay, 4 Met. (Ky.) 139; 243; Howell v. Alkyn, 2 Rawle, 282. 
 
 Green v. Trieber, 3 Md. 11 Sangs- SBerry v. Smith, 3 Wash. C. C. 
 
 ton V. Gaither, 3 Md. 40; Savage v. 60. 
 
 O'Neil, 44 N. Y. 298; Ferguson v. ^Smith's Appeal, 2 Penn. 331; 
 
 Clifford, 37 N. H. 86. Brown's Appeal, 26 Penn. 490. 
 
EXECUTIONS, JUDGMENTS AND ATTACHMENTS. 
 
 513 
 
 § 515. 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.^ Such an instruction is inconsist- 
 ent with an intent to pursue the execution with due dili- 
 gence. Hence there is no distinction between an instruc- 
 tion to delay for one day and an instruction to delay for one 
 or more months or for an indefinite time.^ It is the inter- 
 ference 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.^ A direction to the sheriff not to proceed to a 
 sale unless urged on by younger executions will likewise 
 render an execution void.* The act of the ofiBcer must con- 
 
 ICook V. Wood, i6 N. J. 254, 
 Knower v. Barnard, 5 Hill, 377; 
 Patton V. Hayter, 15 Ala. 18; Wood 
 V. Gary, 5 Ala. 43; Brancli Bank v. 
 Robinson, 5 Ala.623; Porter z/. Cocke, 
 Peck, 30; Freeburger's Appeal, 40 
 Penn. 244; Wise v. Darby, 9 Mo. 
 130; Field V. Liverman, 17 Mo. 218;. 
 Eempland v. Macauley, Peake's N. 
 P. C. 65; Bradley v. Wyndham, i 
 Wils. 44; Hickman v. Caldwell, 4 
 Rawle, 376, 27 Am. Dec. 274; Small- 
 comb V. Buckingham, 5 Mod. 375, 
 s. c. I Salk. 320, s. c. I I/d. Raym. 
 251; Kellogg V. Griffin, 17 Johns. 
 274; Storm V. Woods, 11 Johns, no; 
 U. S. V. Conyngham, 4 Dall. 358; 
 Colby V. Cressy, 5 N. H. 237; Michie 
 V. Planters' Bank, 7 Miss. 130, 34 
 Am. Dec. 112, Kauffelt's Appeal, 9 
 Watts, 334; Ross V. Weber, 26 111. 
 221; Stern's Appeal, 64 Penn. 447; 
 Truitt V. I^udwig, 25 Penn. 145; 
 Johnson v. Williams, 8 Ala. 529; 
 Palmer v. Clarke, 2 Dev. 354, 21 
 Am. Dec. 340; M'Clure v. Ege, 7 
 
 Watts, 74; Mentz v. Haman, 5 
 Whart. 150, 34 Am. Dec. 546; vide 
 Snipes v. Sheriff, i Bay. 295; Green- 
 wood V. Naylor, i McC. 414; Stir- 
 ling V. Van Cleve, 12 N. J. 285; 
 Swigert v. Thomas, 7 Dana, 220; 
 I/andis v. Bvans, 113 Penn. St. 332, 
 6 Atl. 908; Stroudburg Bank's Ap- 
 peal, 126 Penn. St. 523, 17 Atl. 868. 
 It seems that the motive of the 
 creditor in instructing the officer to 
 delay levy is immaterial; if other 
 executions are issued before the 
 officer is instructed by the first 
 creditor to proceed, the lien of first 
 execution will be postponed to that 
 of the others. McClure v. Ege, 7 
 Watts 74; I/andis v. Evans, 113 
 Penn. St. 332, 6 Atl. 908; Stroud- 
 burg Bank's Appeal, 126 Penn. St. 
 523, 17 Atl. 868. 
 
 SBerry v. Smith, 3 Wash. C. C. 60. 
 
 SHunt V. Hooper, 12 M. and W. 
 664. 
 
 *Pringle v. Isaacs,, 11 Price, 445; 
 Weir V. Hale, 3W. & S. 285; Free- 
 
514 EXECUTIONS, JUDGMENTS AND ATTACHMENTS. 
 
 cur 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 ineflfectual. 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.^ A positive and absolute direction to stay 
 proceedings under an execution will not postpone it in favor 
 of a junior execution when there is in fact no delay, for the 
 elements of fraud are wanting.^ A direction after a levy 
 has the same effect as a direction made before a levy.^ If a 
 countermand is given before the issuing of a second execu- 
 tion, the efficacy of the first execution will be restored.^ 
 When the direction is merely to delay for a stipulated 
 time, the execution will be good after the expiration of that 
 time.^ A second execution will not be affected by the delay 
 under a prior execution upon the same judgment.^ 
 
 § 516. Mere Neglect of Sheriflf.— Mere delay on the part of 
 the sheriff to make a levy will not postpone a prior to a 
 junior execution,^ but it always raises a suspicion that an 
 execution is set on foot to protect the property from other 
 creditors.* 
 
 § 617. Debtor's Possession after levy. — The sheriff is not 
 bound to remove the property after he has made a levy. 
 He may leave it in the actual possession of the debtor 
 until the day of sale, and in such case the law will consider 
 
 burger's Appeal, 40 Penn. 244; ^Berry v. Smith, 3 Wash. C. C. 
 
 Kimball v. Hunger, 2 Hill, 364; 60; Carter v. Sheriff, i Hawks, 483. 
 
 Lancaster Savings Inst. v. Wiegand, ^Benjamin v. Smith, 4 Wend. 332. 
 
 3 Penn. L. J. 523; vide Houston v. SStirling v. Van Cleve, 12 N. J. 
 
 Sutton, 3Harring. 37; Cumberland 285; Roberts v. Oldham, 63 N. C. 
 
 Bank v. Hann, 19 N. J. 166; Stirling 267. 
 
 V. Van Cleve, 12 N. J. 285. 7Brown's Appeal, 26 Penn. St. 
 
 iLancaster Savings Inst. v. Wie- 490; Miller v. Getz, 135 Penn. St. 
 
 gand, 3 Penn. L. J. 523. 558, 19 Atl. 955. 
 
 SLancaster Savings Inst. v. Wie- SLovick v. Crowder, 8 B. & C. 
 
 gand, 3 Penn. L. J. 523. 132, 2 Man. & R. 84; West v. Skip, 
 
 SBranch Bank v. Broughton, 15 i Ves. 239. 
 Ala. 127. 
 
EXECUTIONS, JUDGMENTS AND ATTACHMENTS. 
 
 515 
 
 the debtor as the sheriff's agent or bailiflF.^ 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.^ The debtor, however, can 
 not be permitted to sell or consume the property for his 
 own benefit after the levy.* It has also been held that he 
 can not even be allowed to sell at private sale for the pur- 
 pose of raising money to satisfy the execution.* 
 
 § 618. 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 un- 
 
 iCumberland Bank v. Hann, 19 
 N. J. 166; Thompson v. Van Vech- 
 ten, 5 Abb. Pr. 458, s. c. 6 Eosw. 373, 
 s. c. 27 N. Y. 568; Eberle v. Mayer, 
 I Rawle, 366; I/evy Z'. WalHs, 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 z/. Jackson, i 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, I Ired. 88; Wilson v. Hens- 
 ley, 4 Ired. 66; Barham v. Massey, 
 5 Ired. 192; Border v. Benze, 12 
 Iowa, 330; Tucker v. Bond, 23 Ark. 
 268. 
 
 2Doty 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, 53 Am. Dec. 
 407. Contra, Bucknal v. Roiston, 
 Prec. Ch. 285; Commonwealth v. 
 Stremback, 3 Rawle, 341; Berry v. 
 Smith, 3 Wash. C. C. 60; Lewis v. 
 Smith, 2 S. & R. 142; Parker v. 
 Waugh, 34 Mb. 340. 
 
 ^Matthews v. Warne, 11 N. J. 
 295; Williamson v. Johnston, 12 N. 
 J. 86; Barnes v. Billington, i Wash. 
 C. C. 29; Parrington 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. 
 
 *Pary's Appeal, 41 Penn. 273, 80 
 Am. Dec. 615; Keyser's Appeal, 13 
 Penn. 409, 53 Am. Dec. 407; Truitt 
 V. Ludwig, 25 Penn. 145; Davison v. 
 Waldron, 31 111. 120, 83 Am. Dec. 
 206; Kirkpatrick v. Cason, 30 N. J. 
 331; M'Clure v. Ege, 7 Watts, 74; 
 Guardians v. Lawrence, 4 Yeates, 
 194. 
 
 B Russell V. Gibbs, 5 Cow. 390; 
 Society?). Hitchcock, 98 Mass. 333; 
 Smith's Appeal, 2 Penn. 331; Cum- 
 berland Bank V. Hann, 19 N. J. 166; 
 Herkimer Co. Bank v. Brown, 6 
 Hill, 232; Thompson v. Van Vech- 
 ten, 5 Abb. Pr. 458, s. c. 6 Bosw. 
 373, s. c. 27 N. Y. 568; M'Coy v. 
 Reed, 5 Watts, 300; Leach v. Wil- 
 liams, 8 Ala. 759; vide Weir v. Hale, 
 3 W. & S. 285. 
 
516 EXECUTIONS, JUDGMENTS AND ATTACHMENTS. 
 
 reasonably long, the execution will be void.-' A mere ad- 
 journment of a sale for a definite period to some time 
 before the return day of the writ does not amount to a 
 waiver,^ especially when it is done for the purpose of in- 
 vestigating a claim to the property which is brought for- 
 ward on the day appointed for the sale.^ But a direction 
 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.* A sale of wheat growing in the ground 
 may be postponed until it is fit to be reaped. When hides 
 are in vats undergoing the process of tanning, the sale may 
 be postponed until the process is complete.® 
 
 § 519. 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.'^ 
 
 § 620. Remedy against Judgment. — A fraudulent judgment 
 may be attacked collaterally, either at law or in equity, 
 
 ILovick V. Crowder, 8 B. & C. ^Branch Bank v. Broughton, 15 
 132, s. c. 2 Man. & Ry. 84; Rice v. Ala. 127. (Tow^^a, Hickman v. Hick- 
 Serjeant, 7 Mod. 37; Doty V. Turner, man, 3 Harring. 484. 
 8 Johns. 20; Russell v. Gibbs, 5 Cow. ^Whipple v. Foot, 2 Johns. 418, 3 
 390; Benjamin v. Smith, 4 Wend. Am. Dec. 442. 
 
 332; Karl's Appeal, 13 Penn. 483; 6Power z;. Van Buren, 7 Cow. 560. 
 
 Cumberland Bank v. Hann, 19 ^^nsworth v. King, 50 Mo. 477; 
 
 N. J. 166; Berry v. Smith, 3 Wash. Greene z/. Allen, 2 Wash. C. C. 280; 
 
 C. C. 60; Deposit Bank v. Barry, 2 Muir v. Leitch, 7 Barb. 341; Slattery 
 
 Bush, 236; Corlies v. Stanbridge, 5 v. Jones, 96 Mo. 216, 9 Am. St. Rep. 
 
 Rawle, 286; Acton v. Knowles, 14 344, 8 S. W. 554, citing this section 
 
 Ohio St. 18. and holding that "dormancy cannot 
 
 apaton V. Westervelt, 12 N. Y. be affirmed of an execution in re- 
 Leg. Obs. 7; Lantz v. Worthiugton, gard to a sale of lands." And see 
 4 Penn. 153, 45 Am. Dec. 682; Daney Root v. Burton, 115 Ind. 495, 17 N. 
 V. Hubbis, 71 N. C. 424. g. 1^4. 
 
 SBushe's Appeal, 65 Penn. 363. 
 
BXEnUTIONS, JUDGMENTS AND ATTACHMENTS. 517 
 
 for it is void as against creditors.^ It may also be set 
 aside upon an application to the court that rendered it.^ 
 Such application can only be made by a judgment credit- 
 or.^ When it is made by a proper party the court may 
 direct an issue to try the question of fraud.* The issue 
 must be in regard to the alleged fraud and not in regard 
 to the amount due.^ If the judgment is found to be fraud- 
 ulent it can not be vacated on the record, for it is good 
 between the parties.^ The doctrine that a purchaser pen- 
 dente lite is bound by a judgment does not apply in favor 
 of a fraudulent judgment.^ 
 
 § 521. Remedy against Execution. — A fraudulent execution 
 or an execution issued upon a fraudulent judgment, may 
 be treated as null and void.^ 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.^ It may decide the question in a summary 
 way,^" but if there is any doubt upon the question of fraud 
 
 llmray v. Magnay, ii M. & W. BNuman v. Kapp, 5 Binn. 73. 
 
 267; Wilhelmi v. I/eonard, 13 Iowa, ^Dougherty's Estate, 9 W. & S. 
 
 330; Gregg V. Bigham, i Hill (S. C.) 189; Thompson's Appeal, 57 Penn. 
 
 299, 26 Am. Dec. 181; Hammock v. 185. 
 
 McBride, 6 Geo. 178; Burns z/. Morse, 7palconer z/. Jones, 3 Dev. 334; 
 
 6 Paige, 108; Hackett v. Manlove, 14 Haywood v. Sledge, 3 Dev. 338. 
 Cal. 85; Mulford v. Stratton, 41 N. SLovick v. Crowder, 8 B. & C. 132, 
 
 J. 466; Shallcross v. Deats, 43 N. J. s. c. 2 Man. & Ry. 84; Christopher- 
 
 177; vide Tyler v. Leeds, 2 Stark. son v. Burton, 3 Exch. 160, s. c. 
 
 218. 18 L. J. Exch. 60; Boardman v. 
 
 2Frasier v. Frasier, 9 Johns. 80; Keeler, 1 Aik. 158, 15 Am. Dec. 670; 
 
 Austin V. Brown, 16 N. J. 268. Parrington v. Sinclair, 15 Johns. 
 
 SWintringham v. Wintringham, 428. 
 20 Johns. 296. 9Posey v. Underwood, i Hill, 
 
 ^Whiting V. Johnston, 11 S. &R. 262; Sutton v. Pettus, 4 Rich. 163; 
 
 328, 14 Am. Dec. 633; Clark I*. Doug- Lovick v. Crowder, 2 Man. & Ry. 
 
 las, 62 Penn. 408; Frasier v. Frasier, 84, s. c. 8 B. & C. 132; WarmoU v. 
 
 9 Johns. 80; M'Neal v. Smith,, i Young, 5 B. & C. 660, s. c. 8 D. & 
 
 Yeates, 552; Geist v. Geist, 2 Penn. R. 442; Williamson v. Johnston, 12 
 
 441; Sommer v. Sommer, i Watts, N. J. Eq. 86. 
 
 303; Beards v. Wheeler, 76 N. Y. lOWilliamson v. Johnston, 12 N. 
 
 213. J. Eq. 86. 
 
518 EXECUTIONS, JUDGMENTS AND ATTACHMENTS. 
 
 it directs an issue to try it.^ Tlie sheriff is not bound to 
 try the question of fraud or to decide which of two credit- 
 ors 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.^ In an action against the 
 sheriff for making a false return, evidence of fraud in a 
 prior judgment or execution is admissible when he has 
 notice of the fraud or could have discovered it by reason- 
 able diligence.^ Notice to the deputy is notice to the 
 sheriff himself.* 
 
 § 523. 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.^ If it can not be 
 removed without great injury, as hides in a vat, or paper 
 in the process of being manufactured, or iron ore in an 
 open field, a ;removal may be dispensed with, but the 
 sheriff must use due diligence to prevent it from being 
 withdrawn from his control.^ An actual removal is not 
 indispensable. The debtor may, with the permission of 
 the sheriff, be allowed to use such articles as will not be 
 injured by the use.''' Such use, however, is a badge of 
 fraud.* Delay in enforcing an attachment is also evidence 
 of fraud.^ A prior attachment may be set aside for fraud 
 
 iBarber v. Mitchell, 2 Dowl. P. C. ^imray v. Magnay, 11 M. & W. 
 
 574; Matthews v. Warne, 11 N. J. 267. 
 
 295; Williamson v. Johnson, 12 N. 5Baldwin v. Jackson, 12 Mass. 
 
 J. Eq. 86. 131. 
 
 2Warmoll v. Young, 5 B. & C. BMills v. Camp, 14 Conn. 219, 36 
 
 660, s. c. 8 D. & R. 442. Am. Dec. 488; Hemmenway v. 
 
 SImray v Magnay, 11 M. & W. Wheeler, 31 Mass. 408, 25 Am. Dec. 
 
 267; Christopherson v. Burton, 3 411. 
 
 Exch. 160, H. c. 18 L. J. Exch. 60; 7Baldwin v. Jackson, 12 Mass. 
 
 Fairfield v. Baldwin, 29 Mass. 388; 131; Train v. Wellington, 12 Mass. 
 
 Warmoll v. Young, 5 B. & C. 660, 495. 
 
 s. c. 8 D. & R. 442; vide Kemp- SBurrows v. Stoddard, 3 Conn, 
 
 land V. Macaulay, Peake, 65. 160. 
 
 9Reed v. Ennis, 4 Abb. Pr. 393. 
 
EXECUTORS DE SON TORT. 519 
 
 upon the motion of a subsequent attaching creditor.^ An 
 attachment creditor is not a purchaser and is affected by 
 all prior equities.^ 
 
 CHAPTER XXI. 
 EXECUTORS DB SON TORT. 
 
 § 523. When Grantee Is. — When the grantee retains,' or 
 takes the property after the death of the debtor, he may 
 be charged as executor de son tort^ This is the only way 
 in which the property can be reached, because in no other 
 way can a judgment be obtained establishing the debt and 
 authorizing process against the property as that of the 
 deceased debtor. Unless the property, therefore, could 
 be reached in this way the creditors would be without 
 remedy at law. There may be both a rightful executor 
 and an executor de son tort at the same time,^ and if the 
 rightful executor is also a 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.^ 
 
 It is only in the case of personal property that the 
 
 ISmith V. Gettinger, 3 Geo. 140; & J. 61; Yardley v. Arnold, i. Car. 
 
 Harding v. Harding, 25 Vt. 487; & M. 434; Sturdivant v. Davis, 9 
 
 Blaisdell v. Ladd, 14 N. H. 129; Ired. 365; Allen v. Kimball, 15 Me. 
 
 Buckman v. Buckman, 4 N. H. 319; 116; Crunkleton v. Wilson, i 
 
 Webster z/. Harper, 7 N. H. 594; Browne, 361; Densler z/. Edwards, 5 
 
 Pike V. Pike, 24 N. H. 384; vide Ala. 31; Wilcox v. Watson, Cro. 
 
 Whipple V. Cass. 8 Iowa. 126. Eliz. 405; Clayton v. Tucker, 20 
 
 2Burke v. Johnson, 37 Kans. 337, Gep. 452; HoWland v. Dews, R. M. 
 
 I Am. St. Rep. 252, 15 Pac. 204; Charlt. 383; Warren v. Hall, 6 Dana, 
 
 Hope V. Blair, 105 Mo. 85, 24 Am. 450; vide King v. Lyman, i Root, 
 
 St. Rep. 366, 16 S. W. 595. 104. 
 
 SHowland v. Dews, R. M. Charlt. BDorsey v. Smithson, 6 H. & J. 
 
 383. 61; Foster v. Wallace, 2 Mo. 231; 
 
 *Rol. Abr. 549, 13 H. 4 f . 4, pi. 9; Chamberlayne v. Temple, 2 Rand. 
 
 Stokes' Case, 3 Leon, 57; Stam- 384, 14 Am. Dec. 786; Howland v. 
 
 ford's Case, i Dall. 94, s. c. 2 Leon. Dews, R. M. Charlt. 383. 
 
 223; Kitchin v. Dixon, Gouldsb. SDorseyz/. Smithson, 6 H. & J- 
 
 116, pi. 12; Edwards v. Harben, 2 61; Shields w. Anderson, 2 Leigh. 
 
 T. R. 587; Dorsey v. Smithson, 6 H. , 729; Osborne v. Moss, 7 Johns. 161. 
 
520 EXECUTOES DE SON TORT. 
 
 grantee can be so charged, for an intermeddling wifh the 
 real estate of the deceased will not make him an executor 
 de son tort} 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.^ 
 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. 
 
 § 524. 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.* 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 tel non de bonis propriisJ' He can 
 not, however, derive any benefit from his wrongful act, 
 and consequently can not retain for his debt.® 
 
 § 525. When Grrantee 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 
 
 IKing w. Lyman, I Root, 104. 383; Stephens z;. Barnett, 7 Dana, 
 
 SMorrill v. Morrill, 13 Me. 415. 257. 
 
 BStephensw. Barnett, 7 Dana, 257. eshields z/. Anderson, 3 Leigh, 
 
 4Densler v. Edwards, 5 Ala. 31. 729. 
 
 BHowland v. Dews, R M. Charlt. 
 
REMEDIES. 521 
 
 takes as heir,^ so far as creditors are concerned, and is 
 liable for the debts of his ancestor. If the transfer in 
 such a case consists of personal property, be 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.^ If the grantee is also 
 executor the property is assets in his hands.* Property 
 fraudulently conveyed is a part of the deceased debtor's 
 estate,^ and constitutes legal and not equitable assets.^ 
 When the grantee is neither heir nor devisee nor personal 
 representative, the only remedy of the creditor is against 
 the thing granted or the grantee.^ 
 
 CHAPTER XXII. 
 REMEDIES. 
 
 § 526. No Injunction to Prevent Sale.— It is only by the 
 acquisition of a lien that a creditor has any vested or speci- 
 fied right in the property of his debtor. Beforb such lien is 
 acquired the debtor has full dominion over his property. 
 He may convert one species of property into another, and he 
 may alienate to a 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.^ 
 
 IHumberton v. Howgill, Hob. 72; 97; vide Backhouse w. Jett, i Brock. 
 
 O'Connor v. Bernard, 2 Jones, 654; 500. 
 Harrison v. Campbell, 6 Dana, 263. BAnon. 2 Rol. Rep. 173. 
 
 sWarren v. Hall, 6 Dana, 450. BShee v. French, 3 Drew, 716. 
 
 ^Manhattan Co. v. Osgood, 15 7Ralls v. Graham, 4 Mon. 120;. 
 
 Johns. 162, s. c. 3 Cow. 612. Harrison v. Campbell, 6 Dana, 263. 
 
 *Burckmyers v. Mairs, Riley, 8Uhl v. Dillon, 10 Md. 500, 69 
 
 208; Marr v. Rucker, I Humph. Am. Dec. 172; Rich v. Levy, 16 Md> 
 
 348; Jackson v. Bouley, i Car. & M. 74; Hubbard v. Hubbard, 14 Md. 
 
522 
 
 REMEDIES. 
 
 § 527. No Action in Assumpsit Against Grantee.— If a fraud- 
 ulent disposition has actually been made by the debtor of 
 his property, a creditor can not, in the absence of special 
 
 356; Moran v. Dawes, Hopk. 365, 14 
 Am. Dec. 550; Wiggans v. Arm- 
 strong, 2 Johns. Cli. 144; Brooks v. 
 Stone, II Abb. Pr. 220; s. c. 19 How. 
 Pr. 395; Cottrell v. Moody, 12 B. 
 Mon. 500; Shufeldt v. Boetm, 96 
 111. 560; Phelps V. Foster, 18 111. 
 309; Buchanan v. Marsh, 17 Iowa, 
 494; Oberholser v. Greenfield, 47 
 Geo. 330; Hartz/. Hart, 52 Geo. 376; 
 Cubbage v. Adams, 42 Geo. 124; 
 Dortic p. Dugas, 52 Geo. 231; Smith 
 z/. Farnum, 56 Geo. 144; Mayer v. 
 Wood, 56 Geo. 427; Crawford v. 
 Spuing, 56 Geo. 611; Portland 
 Building Ass'n. v. Creamer, 34 N.J. 
 Eq. 107. 
 
 In Uhl V. Dillon, supra, the court 
 said: "No authority has been 
 shown to this court, nor can any be 
 produced entitled to consideration, 
 which sanctions the exercise of the 
 high and extraordinary power of a 
 court of chancery, to interpose, by 
 writ of injunction, in a case like 
 the one before us, restraining a 
 debtor in the enjoyment and power 
 •of disposition of his property. The 
 appellees — (the complainants be- 
 low) are merely general creditors of 
 the appellant, who have not prose- 
 cuted their claim to judgment and 
 execution, nor in any other manner 
 acquired a lien upon the debtor's 
 property, and were not entitled to 
 
 the writ of injunction 
 
 Whatever may be the supposed de- 
 fects of the existing laws, in leav- 
 ing to the debtor the absolute power 
 of disposing of his property .... 
 it is not within the province of the 
 chancery courts to stretch their 
 power beyond the limits of the 
 authorities of the law, for the pur- 
 pose of remedying such defects." 
 There are, however, certain ex- 
 
 ceptional cases in which equity 
 will interfere to prevent a fraudu- 
 lent transfer, but the creditor in 
 such cases must make out a very 
 strong equity in his favor, and 
 show conclusively the inadequacy 
 of legal remedies. In Moore v. 
 Kidder, 55 N. H. 491, where the 
 bill alleged a fraudulent intention 
 on the part of a debtor to dispose 
 of all his property pending judg- 
 ment for the sole purpose of prer 
 venting the plaintiff from collect- 
 ing his judgment, the Supreme 
 Court of New Hampshire said that 
 the bill stated a case for equitable 
 relief. 
 
 In Witmer's Appeal, 45 Penn. St. 
 455, 84 Am. Dec. 505, equity inter- 
 fered to prevent an insolvent debtor 
 from taking action which would re- 
 sult in preferring subsequent cred- 
 itors to prior ones, when the prop- 
 erty was totally insuflScient. The 
 preference consisted in detaching 
 certain fixtures from the realty, so 
 as to withdraw them from tfie lien 
 of the prior judgment. 
 
 In Cohen v. Myers, 42 Ga. 46, a 
 receiver was appointed for an in- 
 solvent debtor who had transferred 
 his property to a third person to 
 defraud plaintiff, the grantee par- 
 ticipating in the fraud. 
 
 In Haggarty v. Pittman, i Paige 
 Ch. 298, 19 Am. Dec. 434, a receiver 
 was appointed for a debtor who had 
 attempted to assign to an insolvent. 
 
 In Hyde V. Ellery, 18 Md. 501, 
 where there were a number of con- 
 tract creditors, an injunction was 
 granted with the idea of preventing 
 multifarious actions. 
 
 See also Fowler's Appeal, 87 
 Penn. St. 449; Rosenburg ». Moore, 
 II Md. 376. 
 
EEMEDIES. 523 
 
 legislation, bring an action in assumpsit^ 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. 
 
 § 528. Action on the Case will not Lie Against Grantee.— 
 
 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 with- 
 out receiving any value for it, with the intent to avoid the 
 payment of his demand, and that he had no other means of 
 obtaining payment. Upon such proof he would not be en- 
 titled 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 obtaining pay- 
 ment 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 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 
 
 lAspinwall v. Jones, 17 Mo. 209; Barrows, 41 Conn. 287. Contra, 
 
 Kelsey v. Murphy, 26 Penn. 78. Penrod v. Morrison, 2 Penna. 126; 
 
 SAdler v. Fenton, 24 How» 407; Mott v. Danforth, 6 Watts, 304, 31 
 Lamb v. Stone, 28 Mass. 527; Wei- Am. Dec. 468; Meredith z/. Benning, 
 lington V. Small, 57 Mass. 145, 50 i H. & M. 585; Hopkins v. Beebe, 
 Am. Dec. 719; Smith v. Blake, i 26 Penn. 85; Quinby v. Strauss, 90 
 Day, 258; Green v. Kimble, 6 N. Y. 664. These cases which up- 
 Blackf. 552; Gardiner v. Sherrod, 2 hold the right of the creditor to re- 
 Hawks, 173; Moody V. Burton, 27 cover against the fraudulent grantee 
 Me. 427, 46 Am. Dec. 612; Mowry v. are based on the ground of con- 
 Schroder, 4 Strobh. 69; Austin v. spiracy. 
 
524 REMEDIES. 
 
 remote for legal estimation. The action can only be main- 
 tained 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 
 suflBcently direct to sustain the action.^ 
 
 § 529. Change of Kemedy. — When the debtor institutes 
 proceedings to reach the property fraudulently conveyed, 
 he may resort to the remedy in force at the time the trans- 
 fer 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 prop- 
 erty has been created.^ 
 
 § 530. Remedy at Law against a Fraudulent Transfer. — A 
 
 fraudulent transfer is void at law as well as in equity. It 
 is treated as a nullity everywhere, and a court of law takes 
 cognizance of the fraud as well as a court of equity.^ In 
 suits at law the question is generally tried in a suit against 
 the sheriff for a false return if he omits to levy, or in an 
 action of trespass or trover if he improperly levies upon 
 the goods of a third person, or by an action directly against 
 the execution creditor for directing the levy, or in trover or 
 detinue against the purchaser at the sheriff's sale, or in an 
 attachment suit.* In relation to real estate the question is 
 usually tried in an action of ejectment by the purchaser 
 
 iSmith V. Tonstall, Carthew, 3; there had been no transfer, and the 
 
 Yates V. Joyce, 11 Johns. 136; question of title then arises in an 
 
 Adams v. Paige, 24 Mass. 542; action of trover, detinue or reple- 
 
 Pickett V. Pickett, 2 Hill Ch. 470. vin, against the sherifi or purchaser 
 
 SBlenkinsopp v. Blenkinsopp, [ at sheriff's sale, by the fraudulent 
 
 De G. M. & G. 495; s. c. 12 Beav. grantee. 
 
 568, s. c. 21 L. J. Ch. 401. But in Louisiana, under the civil 
 
 SMulford V. Peterson, 35 N. J. law, it seems that a fraudulent trans- 
 
 127- fer cannot be attacked except in a 
 
 4Cooke V. Cooke, 43 Md. 522; direct action for that purpose, and 
 
 Henry v. Murphy, 54 Ala. 246. until it is set aside in such an action 
 
 The judgment creditor may pro- it is binding on strangers as well as 
 
 ceed at law to sell the goods and parties. Yocum v. BuUit, 6 Martin 
 
 lands of his debtor which have been N. S. 324, 17 Am. Dec. 184; Collins 
 
 fraudulently conveyed, just as if v. Shaffer, 20 La. Ann. 41. 
 
REMEDIES. 525 
 
 tmder the sheriff against the tenant in possession claiming 
 under the disputed title. 
 
 § 531. The Creditor may select the Forum.— There are 
 
 some instances where the remedy at law is deficient. Thus, 
 there is no remedy at law when the property can not be 
 taken on execution or by attachment. In some states it is 
 also held that property fraudulently purchased in the name 
 of another can not be reached in an action of law.^ In 
 general, however, relief may be had at law as well as in 
 equity, and the determination of the question of fraud can 
 not be withdrawn from the forum which the creditor 
 selects.^ Fraud may be given in evidence under a general 
 issue which raises the question of title to the property.^ 
 When a bond of conveyance is fraudulent its validity can 
 only be tested by a sale and not by an attachment.* 
 
 § 533. Bill in Equity. — The remedy most frequently used 
 is a bill in equity, because a court of equity sifts the con- 
 sciences of the parties and removes the clond from the title. 
 Fraud constitutes the most ancient foundation of its juris- 
 diction,^ and is a sufficient ground for its interposition. It 
 may grant relief although there is ample remedy at law, 
 
 IHowe V. Bishop, 44 Mass. 26; Cocke, 6 Rand. 618, 18 Am. Dec. 
 
 Oarfield v. Hatmaker, 15 N. Y. 475; 757; Cecil Bank v. Snively, 23 Md. 
 
 Page V. Goodman, 8. Ired. Eq. 16; 253; Cutter v. Griswold, Walk. Ch. 
 
 Worth V. York, 13 Ired. 206; Davis 437; Roe v. Irwin, 32 Geo. 39; God- 
 
 V. M'Kinney, Ala. 719; Davis v. ding w. Brackett, 34 Me. 27; Hunt 
 
 Tibbetts, 39 Me. 279; Gray v. Faris, v. Blodgett, 17 111. 583. See section 
 
 7 Yerg. 155; Dewey v. Long, 25 Vt. 217, ante, notes. 
 564; Gowing V. Rich, i Ired. 553; 2M:arriott v. Gjvens, 8 Ala. 694; 
 
 Garrett v. Rhame, 9 Rich. 407, 67 Winch's Appeal, 61 Penn. 424; 
 
 Am. Dec. 557; Jimmerson v. Dun- Fellows v. Lewis, 65 Ala. 343, 39 
 
 can, 3 Jones (N. C.) 537; Low v. Am. Rep. i; Blake v. Hubbard, 45 
 
 Marco, 53 Me. 45; Webster v. Fol- Mich. i. 
 
 som, 58 Me. 230; Hamilton v. Cone, 3Gooch's Case, 5 Co. 60; Ashby 
 
 19 Mass. 478; Carlisle v. Tindall, 49 v. Minnitt, 8 A. & B. 121; Strohm 
 
 Miss. 229; Haggerty v. Nixon, 26 N. v. Hayes, 70 ill. 41; Chamberlain v. 
 
 J. Eq. 42. Contra, Guthrie v. Stern, 11 Nev. 268. 
 Gardner, 19 Wend. 414; Arnot v. ''Stewart v. Coder, ix Penn. 90. 
 
 Beadle, i Hill & D. i8i; Tevis v. SHungerford v. Earle, 2 Vern. 
 
 Doe, 3 Ind. 129; Pennington v. Clif- 261; Hartshorne v. Eames, 31 Me. 
 
 ton, II Ind. 162; Kimmel v. 93; LiUard t/. M'Gee, 4 Bibb, 165. 
 M'Right, 2 Penn. 38; Coleman v. 
 
526 REMEDIES. 
 
 for no relief is adequate except that whicli removes the 
 fraudulent title.^ The relief in equity is diflferent and may 
 be more beneficial than that given by the law. But juris- 
 diction 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.^ On the contrary, it is entertained in 
 equity notwithstanding it exists at law, and thus enter- 
 tained because such deceitful practices, dishonest in their 
 concoction, progress, and consummation, are so abhorrent to 
 every tribunal of justice, that every tribunal has authority 
 and is bound to relieve against them according to its re- 
 spective capacities and methods of proceeding, and because 
 the relief peculiar to a court of equity is more nearly per- 
 fect than that afforded at law.^ 
 
 § 533. Grantee is Trustee for Creditors.— There are some 
 cases where a remedy will be given in equity even though 
 there is none at law. If the debtor fraudulently purchases 
 property in the name of another, equity treats the grantee 
 as trustee for the creditors, and subjects the property to 
 their demands.* 
 
 ITappen v. Evans, ii N. H. 311; Eq. 594; Swift v. Avents, 4 Cal. 390; 
 
 Bennett w. Musgrove, 2 Ves. Sr. 51; Brandon v. Gowring, 6 Rich. Eq- 
 
 Dodge V. Griswold, 8 N. H. 425; 5; Abbey v. Commercial Bank, 31 
 
 Blenkinsopp v. Blenkinsopp, i De Miss. 434; Phillips v. Wesson, 16 
 
 G. M. & G. 495, s. c. 12 Beav. 568; Geo. 137; Hamlen v. McGillicudy, 
 
 21 L.J. Ch. 401; Sheafe v. Sheafe, 62 Me. 268; Scott v. Ind. Wagon 
 
 40 N. H. 516; Jones v. Henry, 3 Works, 48 Ind. 75; Gormley v. Pot- 
 
 Litt. 427; Mountford v. Taylor, 6 ter, 29 Ohio St. 597. 
 
 Ves. 788; Ivewkner v. Freeman, 2 SRussell z/. Hammond, lAtk, 13. 
 
 Freem. 236, s. c. Free. Ch. 105; Eq. SDobson v. Erwin, 1 Dev. & Bat. 
 
 Cas. Abr. 149; Planters' Bank v. 569; s. c. 4 Dev. & Bat. 201. 
 
 Walker, 7 Ala. 926; Sheppard v. ^Godbold v. Lambert, 8 Rich. 
 
 Iverson, 12 Ala. 97; Traip v. Gould, Eq. 155; Odenheimer v. Hansom, 4 
 
 15 Me. 82; Bean v. Smith, 2 Mason, M'Lean, 437; Patterson v. Campbell, 
 
 252; Lillard v. M'Gee, 4 Bibb, 165; 9 Ala. 933; State Bank v. Harrow, 
 
 Buck V. Sherman, 2 Doug. 176; 26 Iowa, 426; Smith v. M'Cann, 24 
 
 Fowler z/. McCartney, 27 Miss. 509; How. 398; Gardiner Bank v. Whea- 
 
 Cook V. Johnson, 12 N. J. Eq. 51, ton, 8 Me. 373; Smith v. Parker, 41 
 
 72Am.Dec38i;Musselman2/. Kent, Me. 452; Bertrand i/. Elder, 23 Ark. 
 
 33 Ind. 452; Cox z/. Dunham, 8 N. J. 494; Corey z/. Greene, 51 Me. 114; 
 
REMEDIES. 
 
 527 
 
 § 534. Property not Lialtle to Execution at Law. — A court 
 of equity will also afford a remedy against choses in action^ 
 stock, and other species of property not liable to an execu- 
 tion at law.^ Any distinction between property which may 
 and property which may not be taken on execution is incon- 
 sistent 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 difBcult 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 
 
 Marshall v. Marshall, 2 Bush. 415; 
 Brown v. McDonald, i 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, 84 Am. Dec. 
 155; Peay v. Sublet, i Mo. 449; New- 
 ell V. Morgan, 2 Harring. 225; 2 
 Del. Ch. 20; Demaree v. Driskell, 3 
 Blackf. 115; McDowell v. Cochran, 
 II 111. 31; Walcott V. Almy, 6 Mc- 
 Lean, 23; Gentry Z". Harper, 2 Jones 
 Eq. 177; Rucker v. Abell, 8B. Mon. 
 566, 48 Am. Dec. 406; Gordon v. 
 Lowell, 21 Me 251. See sections 
 531 and 217, anie, notes and cases 
 cited. 
 
 IWright V. Petrie, I S. & M. Ch. 
 282; Greeu v. Tantum, 19 N. J. Eq. 
 105; s. c. 21 N. J. Eq. 364; Alexander 
 V. Tarns, 13 111. 221; Odenheimer 
 V. Hansom, 4 McLean, 437; Tappan 
 V. Evans, II 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. I Eden, 163; Hadden v. Spader, 
 5 Johns. Ch. 280; s. c. 20 Johns. 554; 
 Hartshorne v. Eames, 31 Me. 93; 
 West V. Saunders, i 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, 75 Am. Dec. 219; Treadwell v. 
 Brown, 44 N.. H. 551; Smithier v. 
 Lewis, I Vern. 398; Anon, i Eq. 
 Abr. 132; Sargent v. Salmond, 27 
 Me. 539; Greer v. Wright, 6. Gratt. 
 154, 52 Am. Dec. iii; Manchester 
 V. McKee, '4 Gilman, 511. Contra, 
 Dundas v. Dutens, 1 Ves. Jr. 196; s. c. 
 2 Cox, 23s; Rider v. Kidder, 10 Ves. 
 360; s. c. 12 Ves. 202; s. c. 13 Ves. 
 123; Matthews v. Feaver, i Cox> 
 278; Grogan v. Cooke, 2 Ball. & B. 
 233; Sims V Thomas, 12 A. & E. 
 536; s. c. 4 P. & D. 233; s. c. 9 L. J. 
 (N. S.) Q. B. 399; Norcut v. Dodd, 
 I Cr. & Ph. 100; Duffin v. Furness, 
 Sel. Cas. Ch. 77; Caillaudz/. Estwick, 
 I Anst. 381; ^Stewart v. English, 6 
 Ind. 176; Cosby v. Ross, 3 J. J. 
 Marsh. 290, 20 Am. Dec. 140; Wine- 
 brenner v. Weisiger, 3 Mon. 32;: 
 Crozier v. Young, 3 Mon. 157; Bick- 
 ley V. Norris, 2 Brev. 252. In some 
 states this remedy is regulated by 
 statute, but such statutes are gen- 
 erally considered as merely declara- 
 tory. 
 The rule stated in the text has been 
 
628 REMEDIES. 
 
 creditors are as perfect in the one case as in tlie other. The 
 spirit of an enlightened jurisprudence requires that the 
 property, rights and interests of a debtor, whatever may 
 be their form, if they have an ascertained value, shall be 
 subject to the payment of his debts. Any other rule leads 
 to fraud upon the creditors and encourages dishonesty in 
 the debtor, who would only have to convert his property 
 into the bond or promissory note of a third person, or into 
 stock of some kind, and then settle the same upon his fam- 
 ily in order to obtain a perfect immunity from his creditors. 
 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 jurisdiction , to administer 
 this trust.-"^ Wherever choses in action or other property of 
 a similar character are liable to execution or attachment, 
 the jurisdiction of a court of equity is unquestionable.^ A 
 feeat in a stock exchange is property of this character.^ 
 
 § 535. Creditor must have Lien. — A fraudulent transfer 
 is valid against all persons except those who proceed to 
 appropriate the property by due course of law to the 
 satisfaction of the grantor's debts. As it is valid against 
 a simple contract creditor, such creditor can not ask the 
 aid of a court of equity to set aside the transfer, for it does 
 not interfere with his rights. Equity has jurisdiction of 
 fraud, but it does not collect debts. A creditor must estab- 
 lish his demand at law, and obtain a lien upon the prop- 
 
 the subject of some controversy. some jurisdictions creditors may 
 
 The earlier English cases above reach them under the statute, in all 
 
 cited held that transfers of choses they may be reached through the 
 
 in action could be reached by the aid of equity. See sections 215, 216, 
 
 statute but Lord Thurlow held that 217, 318, ante, and notes and cases 
 
 choses in action could not be cited. 
 
 reached by creditors at all either iBean v. Smith, 2 Mason, 252. 
 
 at law or in equity, and the English 2Patterson v. Campbell, 9 Ala. 
 
 cases above cited contra are based 933; Wright v. Petrie, l S. & M. Ch. 
 
 on that ground. At present in Eng- 282. 
 
 land choses in action, securities for SHabenicht v. Ussak, 78 Cal. 
 
 money, etc., are liable to creditors 351, 20 Pac. 874, 5 L. R. A. 713, 77 
 
 • by statute. In America such assets Cal. 139, 19 Pac. 260. And see note 
 
 are universally subject to the de- to section 215, ante, and cases there 
 
 mands of creditors and while in cited. 
 
REMEDIES 
 
 529 
 
 erty before the transfer interferes witli Ms rights or he 
 has any title to claim relief in equity.^ No creditor can 
 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. 
 
 § 536. When Creditor's Bight Arises— Partnership.— Such 
 
 specific right does not exist until he has bound the property 
 by judgment, or by judgment and execution as the case 
 may be, and has shown that he is defrauded by the convey- 
 ance in consequence of not being* able to procure satisfac- 
 tion of his debt In due course of law. Then, and then 
 
 iMeux V. Anthony, ii Ark. 411, 
 52 Am. Dec. 274; 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, i Mon. 
 105; Griffith V. Bank, 6 G. & J. 424; 
 Day V. Washburn, 24 How. 352; 
 Jones V. Green, 1 Wall. 330; Col- 
 man V. Croker, i Ves. Jr. 160; Col- 
 lins V. Burton, 4 De G. & J. 612; 
 Angell V. Draper, i Vern. 399; 
 Brinkerhoff v. Brown, 4 Johns. Ch. 
 671; s. c. 6 Johns. Ch. 139; Webster 
 v: Clark, 25 Me. 313; Webster v. 
 Withey, 25 Mass. 326; Coleman v. 
 Cocke, 6 Rand. 618, 18 Am. Dec. 
 757; Halbert v. Grant, 4 Mon. 580; 
 Carter v. Bennett, 4 Fla. 283; Bar- 
 row V. Bailey, 5 Fla. 9; Hendricks 
 V. Robinson, -^ Johns. Ch. 283; s. c. 
 17 Johns. 438; Beck v. Burdett, i 
 Paige, 305, 19 Am. Dec. 436; Jones 
 V. Green, i Wall: 330; Cropsey v. 
 McKinney, 30 Barb. 47; Neustadt v. 
 Joel, 2 Duer, 530; Willets v. Van- 
 denburgh, 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. Brod- 
 h^ad, 8 Barb. 593; Hall v. Joiner, 1 
 Rich. (N. S.) 186; Allen v. Camp, I 
 Mon. 231, 15 Am. Dec. 109; Horner 
 V. Zimmerman, 45 111. 14; Stone v. 
 
 Manning, 3 111. 530, 35 Am. Dec. 
 119; Rhodes v. Cousins, 6 Rand. 
 188, 18 Am. Dec. 715; Tate v. Lig- 
 gatt, 2 Leigh, 84; Kelso v. Black- 
 burn, 3 Leigh, 299; Taylor v. Rob- 
 inson, 89 Mass. 253; Ishmael v. 
 Parker, 13 111. 324; Duberry v. Clif- 
 ton, Cooke, 328; Lister v. Turner, 5 
 Hare, 281; Colman v. Croker, i Ves. 
 Jr. 160; Wheeler v. Taylor, 6 Ired. 
 Eq. 225; Allen v. Montgomery, 48 
 Miss. loi; Oberholser v. Greenfield, 
 47 Geo. 330; Cubbedge 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. Graf- 
 ton, 54 Miss. 79; Ferguson v. Bobo, 
 54 Miss. 121; Coombe v. Meade, 2 
 Cranch C. C. 547; McConnel v. 
 Dickson, 43 111. 99; Stewart v. 
 Fagan, 2 Woods, 215; McMinn v. 
 Whelan, 27 Cal. 300; Bennett v. 
 Stout, 98 111. 47; Tolbert v. Horton, 
 31 Minn. 518, 18 N. W. 647; Tyler 
 V. Peatt, 30 Mich. 63; Vasser v. 
 Henderson, 40 Miss. 519, 90 Am. 
 Dec. 351; Taylor v. Bowker, in U. 
 S. no, 4 S. Ct. 397; Smith v. R. R. 
 Co., 99 U. S. 401; People's Saving 
 Bank v. Bates, 120 U. S. 556, 7S. Ct. 
 679; Lichtenberg v. Herdtfelder, 33 
 Hun 57. 
 
530 REMEDIES. 
 
 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 entitled to the assistance of a court of equity 
 to remove the impediment to his legal rights. In this re- 
 spect there is no distinction between the creditors of an 
 individual and the creditors of a partnership.-^ 
 
 § 537. What Lien Sufficient in the Case of Land. — 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 there- 
 fore proceed at law until he obtains such lien. In the case 
 of land a judgment is commonly suflScient.^ A judgment 
 which has been satisfied,^ or which was rendered in a cause 
 where the debtor was never served with process and never 
 appeared,* 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 sci7-e facias.^ 
 
 § 538. Execution Necessary to bind Personalty. — An execu- 
 tion, however, must be issued in order to obtain a lien on 
 
 iDunlevy v. Tallmadge, 32 N. Y. 3 T. & C. 251; Royer Wheel Co. v. 
 
 457, s. c. 29 How. Pr. 397, s. c. 18 Fielding, 61 How. Pr. 437; Buswell 
 
 Abb. Pr. 48; Young v. Frier, 9 N.J. v. Uncke, 8 Daly, 518. In the fol- 
 
 Eq. 465; vide LawtoD v. Levy, 2 lowing cases it has been held that 
 
 Edw. 197. an execution must be issued: North 
 
 svasser v. Henderson, 40 Miss. American Ins. Co. v. Graham, 5 
 
 519, 9oAm. Dec. ssiiMcCalmontz/. Sandf. 197; McCullough v. Colby, 
 
 Lawrence, i Blatch. 232; Gates v. 5 Bosw. 477, s. c. 4 Bosw. 603; Dana 
 
 Boomer, 17 Wis. 455; Cornell v. v. Haskill, 41 Me. 25; Wyman v. 
 
 Radway, 22 Wis. 260; Mohawk Bank Fox, 59 Me. 100; Payne v. Sheldon, 
 
 V. Atwater, 2 Paige, 54; Clarkson v. 43 How. Pr. i, s. c. 63 Barb. 169; 
 
 De Peyster, 3 Paige, 320; Shaw v. Fox v. Moyer, 54 N. Y. 125; Hyde v. 
 
 Dwight, 27 N. Y. 244, 84 Am. Dec. Chapman, 33 Wis. 391; Verner v. 
 
 275; (Ijut see Adsit v. Butler, 87 N. Downs, 13 S. C. 449. 
 Y. 586); Dargan v. Waring, 11 Ala. spreston v. Turner, 36 Iowa, 671. 
 
 988, 46 Am. Dec. 234; Newman v. *Tyler v. Peatt, 30 Mich. 63. 
 
 Willetts, 52 111. 98; Weightman v. BPostlewait v. Howes, 3 loWa, 
 
 Hatch, 17 111. 281; Baldwin v, Ryan, 365; Hagan v. Walker, 14 How. 29. 
 
KEMEDIBS. 
 
 531 
 
 personal property.^ If the execution is returned the lien 
 is lost and a bill cannot then be filed.^ Another execution, 
 however, may be issued, and the lien thus acquired will be 
 suflScient to support a bill.^ A lien by attachment,^ or judg- 
 ment of condemnation in an attachment,^ or garnishment,* 
 or warrant of distress,^ is as good 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 suf- 
 ficient lien.^ 
 
 § 539. When Judgment is Assigned — or Lien Expires.^ 
 
 A party to whom a judgment is assigned after the issuing 
 of an execution need not have a new execution issued.* 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 
 
 ijones V. Green, i Wall. 330; 
 Clark V. Banner, I Dev. & Bat. Eq. 
 608; Anon. Eq. Cas. Abr. 77, pi. 14; 
 Thurmond v. Reese, 3 Geo. 449, 
 
 46 Am. Dec. 440; Stephens v. Beall, 
 4 Geo. 319; Heye v. BoUes, 33 How. 
 Pr. 265; s. c. 2 Daly, 231; Carr v. 
 Parker, 10 Mo. Ap. 364; IvOgan v. 
 Logan, 22 Fla. 561, i Am. St. Rep. 
 212. 
 
 SEorbes 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. Hub- 
 bard, Walk. Ch. 28. 
 
 SCuyler v. Moreland, 6 Paige, 
 
 273- 
 
 4Hunt V. Field, 9 N. J. Eq. 36, 
 57 Am. Dec. 365; Heyneman v. Dan- 
 nenberg, 6 Cal. 376, 65 Am. Dec. 
 519; Castle V. Bader, 23 Cal. 75; 
 Dodge V. Griswold, 8 N. H. 425; 
 Stone V. Anderson, 26 N. H. 506; 
 Heye v. BoUes, 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; 
 
 Williams v. Michenor, 11 N. J. Eq. 
 520; Robert v. Hodges, 16 N. J. Eq. 
 299; Tennent v. Butler, 18 Kans. 
 324;J9sephz/. McGill, 521a. 127, 2N. 
 W. 1007; vide Martin v. Michael 
 23 Mo. 50, 66 Am. Dec. 656; 
 Melville w. Brown, 16 N.J. 363; Mills 
 V. Block, 30 Barb. 549; McMinn v. 
 Whelan, 27 Cal. 300; Gibbons v. 
 Pemberton, loi Mich. 397, 45 Am. 
 St. Rep. 417, 59 N. W. 663; Benham 
 v. Ham, 5 Wash. 128, 34 Am. St. 
 Rep. 851, 31 Pac. 459; Francis v. 
 Lawrence, 48 N. J. Eq. 508, 22 Atl. 
 
 259- 
 
 SiSmith V. Muirhead, 34 N.J. Eq. 
 
 4- 
 
 SMechanics' Bank v. Dakin, 51 
 N. Y. 519; s. c. 28 How. Pr. 502; s. 
 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. 
 
 7Allen V. Camp, i Mon. 231; vide 
 Belknap v. Hastings, i Denio, 190. 
 
 sCurry v. Glass, 25 N. J. Eq. 108. 
 
 9Hastings v. Palmer, i Clarke, 52. 
 
532 
 
 REMEDIES. 
 
 set aside as to the personalty.^ 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.^ 
 
 § 540. 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 execution 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.^ 
 
 iBuswell V. Lincke, 8 Daly, 518. 
 
 SPartee v. Matthews, 53 Miss- 
 
 140; Fleming v. Grafton, 54 Miss. 
 
 79- 
 
 ■ SHerrlich v. Kaufman, 99 Cal. 
 271, 37 Am. St. Rep. 50, 33 Pac. 
 857; Mullin V. Hewett, 103 Mo. 639, 
 15 S. W. 924; Russell V. Chicago 
 Sav. Bank, 139 111. 538, 29 N. B. 37; 
 Hopkins v. Joyce, 78 Wis. 443, 47 
 N. W. 722. 
 
 •IBates V. Cobb, 29 S. C. 395, 13 
 Am. St. Rep. 742, 7 S. E. 743. 
 
 BBlanc V. Paymaster Mining Co., 
 95 Cal. 524, 29 Am. St. Rep. 149, 30 
 Pac. 765; Beck v. Burdett, i Paige, 
 305, 19 Am. Dec. 436; Heacock v. 
 Durand, 42III. 230; Clarkson z;. De 
 Peyster, 3 Paige, 320; Crippeu v. 
 Hudson, 13 N. Y. 161; McElwain v. 
 Willis, 9 Wend. 548; s. c. 3 Paige, 
 505. (See Smith v. Weeks, 60 Wis. 
 94, 18 N. W. 778); Taylor v. Persee, 
 15 How. Pr. 417; Beach v. White, 
 Walk. Ch. 495; Tappan v. Evans, 
 II N. H. 311; Williams v. Hubbard, 
 Walk. Ch. 28; Brown v. Bank, 31 
 Miss. 454; Chittenden v. Brewster, 
 
 2 Wall. 191; Jones v. Green, i Wall. 
 330; Weaver v. Haviland, 142 N. Y- 
 534, 40 Am. St. Rep. 631, 37 N. E. 
 641, 60 N. Y. St. Rep. 73; Bates v. 
 Cobb, 29 S. C. 395, 13 Am. St. Rep. 
 742, 7 S. E. 743; Green v. Tantum, 
 19 N.J. Eq. 105, s. c. 21N. J. Ec[. 
 364; GrifiSn v. Nitcher, 57 Me. 270; 
 McCartney v. Bostwick, 31 Barb. 
 390; s. c. 32 N. 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. Figgins, 37 Iowa, 317; 
 Miller v. Dayton, 47 Iowa, 312: Case 
 V. Beauregard, 101 U. S. 688; Hi- 
 bernia Ins. Co. v. St. I,. & N. 
 Trans. Co. ,10 Fed. Rep. 596; Bax- 
 ter V. Moses, 77 Me. 465, 52 Am. 
 Rep. 783, I Atl. 350; Fechheimer v. 
 Hollander, 6 Mackey, (D. C.) 512, 
 I Iv. R. A. 368; Gilbert v. Stock- 
 man, 81 Wis. 602, 29 Am. St. Rep. 
 922, 51 N. W. 1076, 52 N. W. 1045. 
 In Fechheimer v. Hollander, 
 supra, the court said: "There are 
 two classes of cases in which a 
 judgment creditor may go into 
 
REMEDIES. 
 
 533 
 
 § 541. What return is Sufficient. — A return before the re- 
 turn day of the writ is sufficient if the bill is not filed until 
 after the return day.^ Whether a return before the return 
 day is sufficient alone is a point upon which the decisions 
 vary.^ But if an indorsement of nulla bona is actually 
 made on the execution, this may be considered as sufficient 
 although it is not filed.^ If property purchased in the 
 name of another is not liable to an execution at law, there 
 must be a return of the execution.* 
 
 chancery for relief against an 
 alleged fraudulent debtor. One is 
 when he has fraudulently conveyed 
 property, the title to which was in 
 him, the other in which he has no 
 legal title whatever to the property 
 but only an equitable interest, in 
 such case execution will not avail 
 at law because equitable personal 
 property cannot be seized in execu- 
 tion for debts at law. In this latter 
 case it is the uniform practice — and 
 the necessary practice — to have a 
 return of nulla bona, so that it may 
 be shown that the legal remedy has 
 been exhausted, and then the court 
 of chancery, after the bill is filed, 
 will consider that the lien attached 
 to the property by the filing of the 
 bill." 
 
 Mr. Bigelow (Bigelow on Fraud, 
 Vol. II., 80) points out the distinc- 
 tion to be noticed between credit- 
 or's suits to reach equitable assets, 
 and suits to set aside fraudulent 
 conveyances — the same distinction 
 noted in Fechheimer v. Hollander, 
 supra. He says "Suits to set aside 
 fraudulent conveyances should not 
 be confounded with suits in which 
 a creditor seeks to reach equitable 
 assets of his debtor. In these lat- 
 ter suits the creditor is generally 
 required to show that he has ex- 
 hausted his legal remedies without 
 satisfaction; for, until then the 
 
 creditor has a remedy at law." 
 
 See Preston v. Colby, 117 111. 477, 
 4 N. E. 375; TA'adsworth v. Schissel- 
 bauer, 32 Minn. 84, 19 N. W. 390. 
 This distinction has been lost sight 
 of in those cases which hold that 
 return of nulla bona is necessary 
 before equity will Set aside a fraudu- 
 lent transfer of legal assets by the 
 debtor, a doctrine held in Adsit v. 
 Butler, 87 N. Y. 585. 
 
 iForbes v. Waller, 4 Bosw. 475; 
 s. c. 25 N. Y. 430; s. c. 25 How. Pr. 
 166; Reynaud v. O'Brien, 35 N. Y. 
 99, s. c. 25 How. Pr. 67; Suydam v. 
 Beais, 4 McLean, 12; Knauth v. 
 Bassett, 34 Barb. 31. 
 
 2Forbes 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. 
 
 SOcean Nat'l Bank v. Olcott, 46 
 N. Y. 12; Lewis V. Lamphere, 79 
 11. 187. 
 
 ^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; Hag- 
 gerty v. Nixon, 26 N. J. Eq. 42; Call 
 V. Perkins, 65 Me. 439. Contra, 
 McCartney v. Bostwick, 32 N. Y. 
 S3, s. c. 31 Barb. 390; Wood v. Rob- 
 inson, 22 N. Y. 564. See sections 
 533. 531 and 217, ante. 
 
534 REMEDIES. 
 
 § 542. 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 can 
 -only be reached by the aid of a court of equity, the- cred- 
 itor 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 in- 
 terposed against the execution at law, and also to reach 
 other property of the debtor which can not be sold on the 
 second execution.^ 
 
 § 543. Kind of Judgment. — A bill may be filed to enforce 
 a decree in equity,^ or a magistrate's judgment,* or a judg- 
 ment by confession,* as well as a regular judgment at law. 
 A judgment in an attachment suit when the debtor has not 
 been summoned,^ or a foreign judgment,® or process that is 
 void, is not sufficient.'' Where a judgment is recovered 
 against joint debtors upon service of process on any number 
 less than the whole, a bill can not be maintained to inter- 
 
 iCuyler v. Moreland, 6 Paige, v. Burton, supra, Crippen v. Hud- 
 
 273; Wright V. Petrie, i S. &. M. son, supra. 
 
 Ch. 282. ^Neusbaum v. Klein, 24 N. Y. 
 
 2Farnswortli v. Strasler, 14 111. 325. 
 
 482; Clarksoa v. De Peyster, 3 SMancliester t;. McKee, 9III. 511; 
 
 Paige, 320; Weightman v. Hatcli, 17 Getzler v. Saroni, 18 111. 511; vide 
 
 111- 281. Bailey v. Burton, 8 Wend. 339. 
 
 SBailey v. Burton, 8 Wend. 339; BMcCartney v. Bostwick, 31 Barb. 
 
 Orippen v. Hudson, 13 N. Y. 161; 390; s. c. 32 N. Y. 53; Farned v. 
 
 Harlan z/.Barnes, 5 Dana, 219; New- Harris, 19 Miss. 366; Berryman 0. 
 
 digate v. Lee, 9 Dana, 17; Ballen- Sullivan, 21 Miss. 65; Claflin v. Mc- 
 
 tine V. Beall, 4 111. 203; Henderson Dermott, 12 Fed. Rep. 275; Davis v. 
 
 V. Brooks, 3 T. & C. 445. Bruns, 30 N. Y. Supr. 648; vide 
 
 But in order that a magistrate's Tarbell v. Griggs, 3 Paige, 207, 33 
 
 judgment may suffice as the founda- Am. Dec. 790; Bullitt v. Taylor, 34 
 
 tion of a creditor's bill it must be Miss. 708, 59 Am. Dec. 412. 
 
 docketed in a court of record. Bailey 7Guerin v. Hunt, 6 Minn. 375; s. 
 
 c. 8 Minn. 477. 
 
REMEDIES. 535 
 
 fere with any disposition of the separate property of those 
 who have not been served,^ but a transfer of the joint prop- 
 erty may be set aside.^ In such case, however, the persons 
 who have not been served should be made parties.* 
 
 § 544. £qultable 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.'* 
 
 § 545. 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.^ 
 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.^ A court of equity, 
 however, is authorized by the principles which regulate 
 
 ^Bilhofer v. Heabach, 15 Abb. Smith, 57 Miss. 548; Smith v. Rum- 
 
 Pr. 143; Field v. Chapman, 15 Abb. sey, 33 Mich. 183; vide Williams v. 
 
 Pr. 434; s. c. 14 Abb. Pr. 133. Tipton, 5 Humph. 66, 40 Am. Dec. 
 
 SBilhofer v. Heubach, 15 Abb. 420; McDermott v. Blois, R. M. 
 
 Pr. 143. Charlt. 281. See Pechheimer v. 
 
 SHoward v. Sheldon, 11 Paige, Hollander, 6 Mackey (D. C.) 512, i 
 
 558. L. R. A. 368. 
 
 IHalbertz/. Grant, 4 Men. 580; ^i^oomis v. TifEt, 16 Barb. 541; 
 
 Waller v'. Todd, 3 Dana, 503, 28 Am. Bireley v. Staley, 5 G. & J. 432. 
 Dec. 94; Shea v. Knoxville & K. R. BLoomis v. Tifft, 16 Barb. 541. 
 
 R. Co., 6 Baxter, 277; Swan v. 
 
536 REMEDIES. 
 
 its jurisdiction to interpose at whatever point in the pro- 
 gress of tlie 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.^ 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.^ If there is a judgment, no return of 
 nulla bona is necessary in such a case.' 
 
 § 546. 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 
 the creditors have a specific right to be satisfied but 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 
 
 iHarrison v. Campbell, 6 Dana, ner, 29 N. J. Eq. 536; Spencer v 
 
 263; Lyons V. Murray, 95 Mo. 23, 6 Armstrong, 12 Heisk. 707; Shurts v. 
 
 Am. St. Rep. 17, 8 S. W. i7o; Bay v. Howell, 30 N. J. Eq. 418; Armstrong 
 
 Cook, 31 111. 336; Trippe v. Ward, 2 v. Croft, 3 Lea, 191; z/joTi? Parstowe v. 
 
 Geo. 304; Lynch v. Raleigh, 3 Ind. Weedon, i Eq. Cas. Abr. 149; Bruns- 
 
 273; Hagan v. Walker, 14 How. 29; den v. Stratton, Prec. Ch. 520; 
 
 Frazer v. Western, i Barb. Ch. 220; Brown v. McDonald, 1 Hill Ch. 297; 
 
 s. c. 1 How. App. Cas. 448; Loomis Scriven v. Bostwick, 2 McCord Ch. 
 
 V. TifEt, 16 Barb. 541; Steere v. 410; Mugge v. Ewing, 54 111. 236; 
 
 Hoagland, 39 111. 264; Watts v. Gale, Estes v. Wilson, 67 N. Y. 264; AUyn 
 
 20 Ala. 817; Pharis v. Leachman, 20 v. Thurston, 53 N. Y. 622; Evans v. 
 
 Ala. 662; Bireley v. Staley, 5 G. & Hill, 25 N. Y. Supr. 464. 
 J. 432. 25 Am. Dec. 303; Snodgrass ^Hagan v. Walker, 14 How. 29; 
 
 V. Andrews, 30 Miss. 472, 64 Am. Frazer v. Western, i Barb. Ch. 220; 
 
 Dec. 169; Winn v. Barnett, 31 Miss. s. c. i How. App. Cas. 448; Hampson 
 
 653; McDowell V. Cochran, 11 111. z;. Sumner, 18 Ohio,444; McNaught- 
 
 31; O'Brien z/. Coulter, 2 Blackf. in v. Lamb, 2 Ind. 642; Snodgrass 
 
 421; Merry v. Premon, 44 Mo. 518; v. Andrews, '30 Miss. 472, 64 Am. 
 
 Chamberlayne v. Temple, 2 Rand. Dec. 169; Pharis v. Leachman, 20 
 
 384, 14 Am. Dec. 786; Spicer v. Ala. 662. 
 
 Ayres, 2 T. & C. 626; Wright v. Spostlewait- v. Howes, 3 Iowa, 
 
 Campbell, 27 Ark. 637; White v. 365. 
 Russell, 79 111. 155; Hasten v. Cast- 
 
REMEDIES. 537 
 
 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.^ 
 
 § 547. Proceedings Against Estate.— A creditor of a de- 
 ceased debtor may file a bill against a fraudulent grantee 
 without first proceeding against the estate.^ 
 
 § 548. 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.^ 
 
 § 549. Non-Residents. — Whether judgment must be ob- 
 tained against a non-resident before a bill can be filed is 
 a point upon which the decisions vary.* 
 
 § 550. 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.^ 
 
 iChamberlayne v. Temple, 2 The weight of authority seems to 
 
 Rand. 384, 14 Am. Dec. 786. be that a bill to reach equitable 
 
 SSpencer v. Armstrong, 12 Heisk. assets may be filed before the re- 
 
 707; Armstrong v. Croft, 3 Lea, 191. cov'ery of judgment against an 
 
 Sfiarton v. Hosner, 31 N. Y. Supr. absconding or non-resident debtor. 
 
 467. Merchants National Bank v. Paine, 
 
 ^Anderson v. Bradford, 5 J. J. 13 R. I. 592 (reviewing the cases); 
 
 Marsh. 69; Scott z*. M'Millen, I I/itt. Scott z/. M'Millen, supra; Peay z/. 
 
 302, 13 Am. Dec. 239; Greenway v. Morrison, 10 Gratt. 149; Farrar v. 
 
 Thomas, 14 111. 271; Ballouz/. Jones, Haselden, 9 Rich. Eq. 331; Pendle- 
 
 20 N. Y. Supr. (13 Hun) 629; Dodd ton v. Perkins, 49 Mo. 565. 
 
 V. Levy, 10 Mo. Ap. 121. SKamp v. Kamp,46 How. Pr. 143. 
 
538 REMEDIES. 
 
 § 551. When Objection may be Taken.— The objection that 
 a party has not obtained a lien or exhausted his remedy at 
 law is one that may be taken at the hearing/ and is not 
 obviated by the rendition of a judgment after the filing of 
 the bill.2 
 
 § 552. When Belief 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 boun^ to levy upon the 
 property and take the risk of the litigation that may en- 
 sue.^ A court of equity will interpose to prevent the use 
 of a fraudulent judgment,* but will not vacate it.^ The 
 right to impeach a fraudulent transfer is not affected by 
 the fact that the debtor may have other property. The 
 ■creditor has the choice of the part upon which he will levy, 
 and the debtor can not take away the election.^ If separ- 
 ate 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 convey- 
 ance and can not be required to resort to the other.^ If 
 the creditor, however, has a security that may be first ap- 
 plied to his debt before other property is appropriated to- 
 ward its payment, he may be compelled to exhaust the 
 security.^ But he can not be required to relinquish it or 
 to bring it in as a common fund for the benefit of other 
 
 iTappan v. Evans, il N. H. 311; Couch, 5 Day, 223; Botsford v. 
 
 Meux V. Anthony, 11 Ark. 411, 52 Beers, 11 Conn. 369; Westerman, 25 
 
 Am. Dec. 274; Brown 11. Bank, 31 Ohio St. 500; Gray v. Chase, 57 Me. 
 
 Miss. 454. 558; Gormerly e. Chapman, 51 Geo. 
 
 2Brown v. Bank, 31 Miss. 454; 421; Baker v. Lyman, 53 Geo. 339; 
 
 Edgar V. Clevenger, 3 N. J. Eq. Edmunds v. Mister, 58 Miss. 765; 
 
 ^58. Gormley v. Potter, 29 Ohio St. 597; 
 
 SGasper v. Bennett, 12 How. Pr. Alford v. Baker, 53 Ind. 279; vide 
 
 307- Eigleberger v. Kibler, i Hill Ch. 
 
 4Shaw V. Dwight, 27 N. Y. 244, 113, 26 Am. Dec. 192; M'New v. 
 
 .84 Am. Dec. 275; Burns v. Morse, 6 Smith, 5 Gratt. 84; Rice v. Perry, 
 
 Paige, 108; Clark v. Bailey, 2 Strobh. 61 Me. 145; Pearson v. Maxfield, 51 
 
 Eq. 143. Iowa, 76, 50 N. W. 77; Love v. 
 
 SKaupe V. Bridge, 2 Robt. 459. Geyer, 74 Ind. 12. 
 
 BVasser v. Henderson, 40 Miss. 7Miller v. Dayton, 47 Iowa, 312. 
 
 519, 90 Am. Dec. 351; Wadsworth z/. SCoutts z/. Greenhow, 2 Munf. 363, 
 
 Haven, 3 Wend. 411; Wadsworth v. s. c. 4 H. & M. 485. 
 "Williams, 100 Mass. 126; Gaylord v. 
 
REMEDIES. 
 
 639 
 
 creditors.^ A court of equity exercises some discretion,^ 
 and will not interfere where there is an improper combina- 
 tion between the debtor and the creditor to the prejudice 
 of the grantee.^ 
 
 § 653. 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* or claim property which 
 has otherwise been fraudulently withheld.'^ The assignee 
 may file a bill in equity to set aside a fraudulent convey- 
 ance,® and this right is vested in him exclusively.^ If a 
 creditor, however, has obtained a lien he may continue the 
 prosecution of a suit instituted prior to the commencement 
 of the proceedings in bankruptcy.^ 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? "When the bill 
 
 lAla. Warehouse Co. v. Jones, 62 
 Ala. 550. 
 
 ^Bennett v. Musgrove, 2 Ves. Sr. 
 51; Hall V. Greenly, i Del. Ch. 274. 
 
 ^Hemphill v. Hemphill, 34 Miss. 
 68; Anderson v. Tuttle, 26 N. J. Eq. 
 144. 
 
 ^Williams v. Merritt, 103 Mass. 
 184, 4 Am. Rep. 521. 
 
 SCodman v. Freeman, 57 Mass. 
 306; vide HoUinshead v. Allen, 17 
 Penn. 275. 
 
 6Carr v. Hilton, i Curt. 230, 390; 
 Pratt V. Curtis, 6 N. B. R. 139; 
 Bradshaw v. Klein, i N. B. R. 542; 
 s. c. 2 Biss. 20; Shirley v. I/ong, 6 
 Rand. 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. 
 R.ep. 800; Lynch v. Roberts, 57 Md. 
 150; Loos V. Wilkinson, no N. Y. 
 195-209, 18 N. E. 95. 
 
 7/« re Meyers, 2 Ben. 424; s. c. i 
 N. B. R. 581; Stewart v. Isidor et al., 
 5 Abb. Pr. (N. S.) 68; s. c. I N. B. R. 
 485; Goodwin v. Sharkey, 5 Abb. Pr. 
 
 (N. S.) 64; s. c. 3 N. B. R. 558; Thomas 
 V. Phillips, 9 Penn. 355; Allen v. 
 Montgomery, 48 ■ Miss. loi; Ed- 
 wards V. Coleman, 2 Bibb. 204; 
 Thurmond v. Andrews, 10 Bush. 
 400; Hambrick v. Bragg, 4 Baxter, 
 33; McMasters v. Campbell, 41 Mich. 
 513, 2 N. W. 836; Trimble v. Wood- 
 head, 102 U. S. 647. See Warren v. 
 Moody, 122 U. S. 132, 7 S. Ct. 1063; 
 Bank v. Rogers, 47 Fed. 151-153. 
 
 ^Sedgwick v. Menck, 6 Blatch. 
 156; s. c. I N. B. R. 675; Stewart v. 
 Isidor et al., 5 Abb. Pr. (N. S.) 68; 
 s. c. I N. B. R. 485; Payne v. Able, 
 7 Bush. 344, 3 Am. Rep. 316; Gold- 
 smith V. Russell, 5 De G. M. & G. 
 547; Storm V. Waddell, 2Sandf. Ch. 
 494; Tichnor v. Allen, 13 Gratt. 15; 
 Fetter z/. Cirode, 4 B. Mon. 482; 
 Carr v. Parrington, 63 N. C. 560; 
 Wooten V. Clark, 23 Miss. 75; Kim- 
 berling z/. Hartly, I Fed. Rep. 571; 
 vide Smith v. Gordon, 6 Law Rep. 
 
 313- 
 
 sCragin v. Carmichael, 2 Dillon, 
 519; Cady V. Whaling, 7 Biss. 430; 
 Southard v. Benner, 72 N. Y. 424; 
 Piatt V. Matthews, 10 Fed. Rep. 
 280. 
 
540 
 
 REMEDIES. 
 
 is filed by the assignee, tlie creditors are equitable though 
 not necessary parties, and may be joined.^ If the assignee 
 declines to act, the creditors may file a bill and make him a 
 party defendant.^ They may also proceed in the same way 
 when an administrator who is authorized by law to insti- 
 tute such proceedings declines to do so.^ If an assignee has 
 been discharged he need not be made a party.* 
 
 § 554. Other Parties. — A receiver appointed under proceed- 
 ings supplemental to an execution,^ and the sheriff, when 
 he has levied an attachment,® may file a bill. An assignee 
 holding under a voluntary assignment can not.^ A party 
 who has purchased at a sale under an execution may file 
 a bill to remove the cloud on his title and the impediment 
 to his quiet enjoyment of the property,^ although he has 
 not obtained a deed,^ or may not be entitled to a deed un- 
 til some future day.^" If the judgment is against the firm 
 
 iBoone v. Hall, 7 Bush, 66, 3 Am. 
 Rep. 288. 
 
 2Sands v. Codwise, 4 Jolins. 536, 
 4 Am. Dec. 305; Freelander v. Hol- 
 lomafi, 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; 
 Meyer v. Dewey, 103 U. S. 301; 
 Trimble v. Woodtead, I02 U. S. 
 649. 
 
 SBate V. Graham, 11 N. Y. 237; 
 Henderson v. Brooks, 3 T. & C. 
 445- 
 
 4Apperson v. Burgett, 33 Ark. 
 328. 
 
 ^Dunham v. Byrnes, 36 Minn. 
 106, 30 N. W. 402; Bostwick v. 
 Menck, 40 N. Y. 386; Porter v. 
 Williams, 9 N. Y. 142, s. c. 12 How. 
 Pr. 107, 59 Am. Dec. 519; Hamlin v. 
 Wright, 23 Wis. 491; Donnelly v. 
 West, 24 N. Y. Supr. 564. Contra, 
 Higgins V. Q-illesheimer, 26 N. J. 
 Eq. 308, (but see Miller v. Macken- 
 zie, 29 N. J. Eq. 308.) 
 
 BKelly V. Lane, 42 Barb. 594; s. 
 
 c. 18 Abb. Pr. 299; s. c. 28 How. Pr. 
 128. 
 
 7Bishop 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; Simp- 
 son V. Warren, 55 Me. 18; Smith v. 
 Thompson, 9 Conn. 63. 
 
 SBailey v. Burton, 8 Wend. 339; 
 Frakes v. Brown, 2 Blackf. 295; 
 Harrison v. Kramer, 3 Iowa, 343; 
 Gerrish v. Mace, 75 Mass. 250; 
 Gallman 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. Rose, Freem. Ch. (Miss.) 
 703; Hager v. Shindler, 29 Cal. 47; 
 Orindorf v. Budlong, 12 Fed. Rep. 
 24. Contra, Hall v. Greenly, i Del. 
 Ch. 274; Thigpen v. Pitt, i Jones 
 Eq. 49- 
 
 ^Remington Paper Co. v. 
 O'Dougherty, 81 N. Y. 474. 
 lOHoxie V. Price, 31 Wis. 82. 
 
REMEDIES. 541 
 
 in the firm name only, in accordance with a statute, a pur- 
 chaser 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.^ 
 
 § 555 . Parties Complainant. — If a creditor has assigned his 
 claim, the bill should be brought by his assignee.^ 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 .^ 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 .* It is 
 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. ^ The sheriff and the creditor may 
 unite, for each has an interest in preventing a multiplicity 
 of suits and having the whole matter closed by a single 
 controversy.'' Several creditors may join in filing a bill, 
 for they have similar rights with respect to the property 
 of their debtor. It is, therefore, proper for them to unite 
 in the same suit for effecting the same end. Such a bill 
 is not multifarious, for it relates to one subject-matter .'' 
 
 iMcCoy V. Watson, 51 Ala. 466. Dec. 94; Comstock v. Rayford, 9 
 
 SGoale V. Mildred, 3 H. and J. Miss. 423; s. c. 20 Miss. 369, 40 Am. 
 
 278. Dec. 102; Gannard v. Eslava, 20 
 
 3Postlewaite v. Howes, 3 Iowa, Ala. 732; Brinckerhoff v. Brown, 4 
 
 365. Johns. Ch. 671; s. c. 6 Jolins. Ch. 
 
 IGrover zi. Wakeman, II Wend. 139; Clarkson z/. De Peyster, 3 Paige, 
 
 187; s. c. 4 Paige, 23, 25 Am. Dec. 320; Ruffing v. Tilton, 12 Ind.- 259; 
 
 624; Baker v. Bartol, 6 Cal. 483; Williams v. Michenor, 11 N. J. Eq. 
 
 Edmeston v. Lyde, i Paige, 637, 19 520; Wall v. Fairley, 73 N. C. 464; 
 
 Am. Dec. 454; Ballentine v. Beall, 4 Bomar v. Means, 37 S. C. 520, 34 
 
 111. 203; Way V. Bragaw, 16 N. J. Am. St. Rep. 77c, 14 S. E. — . 
 
 Eq. 213, 84 Am. Dec. 147; Annin v. In this last case the court said : 
 
 Annin, 24 N. J. Eq. 184; Jackman "I do not understand that where 
 
 V. Robinson, 64 Mo. 289. several judgment creditors go on 
 
 SGrover z/. Wakeman, 11 Wend, the record as plaintiffs, it is a mis- 
 
 187; s. c. 4 Paige, 23, 25 Am. Dec. 624. joinder of plaintiffs of which the de- 
 
 BAdams v. Davidson, 10 N. Y. 309. fendant debtor or those who claim 
 
 7Lentilhon v. MoflEat, i Edw.451; under him have any right to com- 
 
 Waller v. Todd, 3 Dana, 503, 28 Am. plain. The judgment creditors do not 
 
542 REMEDIES. 
 
 The fact that one creditor may be entitled to additional 
 and further relief forms no objection to their uniting in a 
 bill for the purpose of obtaining the relief to which they 
 are all entitled.^ The bill may be filed on behalf of those 
 who institute the proceedings alone, or on behalf of all who 
 may choose to come in and participate in the proceedings.^ 
 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.^ 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.* The assignor of a judgment may join with 
 the assignee.' 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.* 
 
 § 556. Parties Defendant^ — Debtor. — Creditors who have 
 liens on the property may file a bill after the appointment of 
 a receiver and make him a party.* If the property has 
 been transferred merely as security for a debt, the debtor 
 is a necessary party.^ If he has parted with the title abso- 
 lutely he is a proper party, for it is his debt that is sought 
 to be collected, and his fraudulent conduct that requires 
 
 thereby make themselves partners ^Coleman ». Pinkard, 2 Humph, 
 
 with the other creditors or claim 185. 
 
 that they have a joint interest in BBeach v. White, Walk. Ch. 495. 
 
 the cause of action, but that as eCooper v. Gunn, 4 B. Mon. 594. 
 
 creditors they are separate and dis- 7" It is a general rule that all 
 
 tiuct, having an interest in common parties interested in a controversy 
 
 to set aside fraudulent conveyances or who may be affected by a decree 
 
 of their common debtor, which rendered therein, should be made 
 
 standiu the way of their being paid parties; all who are nominally or 
 
 according to their respective priori- really interested may therefore be 
 
 ties." • joined." Raynor v. Mintzer, 67 
 
 iClarkson v. De Peyster, 3 Paige, Cal. 159, 7 Pac. 431. 
 
 320- SGere v. Dibble, 17 How. Pr. 3. 
 
 SEdmeston v. Lyde, i Paige, 637, 9Hammond v. Hudson River Co., 
 
 19 Am. Dec. 454; Bireley v. Staley, 20 Barb. 378. 
 
 5 G. & J. 432; Hammond v. Hudson In a suit brought to set aside the ' 
 
 River R. R. Co., 20 Barb. 378. assignment of a chose in action, the 
 
 SBauknight v. Sloan, 17 Fla. 284. judgment debtor is a necessary 
 
 party. Miller v. Hall, 70 N. Y. 252. 
 
REMEDIES. 
 
 543 
 
 investigation. But he is not a necessary party, for he 
 has no beneficial interest which can be affected by the liti- 
 gation.^ If the debt is against several parties and the 
 conveyance is made by one alone, the other debtors are 
 not necessary parties.^ If the debtor becomes bank- 
 rupt he is not a necessary party to a bill filed by the 
 assignee.* If the debtor dies, his administrator is a proper 
 but not a necessary party.* The debtor's heirs need not 
 
 IBlanc V. Paymaster Mining Co., 
 95 Cal. 524, 29 Am. St. Rep. 149, 30 
 Pac. 765; Taylor v. Webb, 54 Miss. 
 36; Dockray v. Mason, 48 Me. 178; 
 Leach v. Shelby, 58 Miss. 681; Pot- 
 ter V. Phillips, 44 Iowa, 353; Laugh- 
 ton V. Harden, 68 Me. 208. Contra 
 Sewall V. Russell, 2 Paige, 175; 
 Lovejoy v. Irelan, 17 Md. 525, 79 
 Am. Dec. 667; Gay lords v. Eelshaw, 
 I Wall. 81; Lawrence v. Bank, 35 
 N. Y. 320; s. c. 3 Robt. 142; Beards- 
 ley Scythe Co. v. Foster, 36 N. Y. 
 561; s. c. 34 How. Pr. 97; Allison v. 
 Weller, 6 X. & C. 291; Wallace v. 
 Eaton, 5 How. Pr. 99; Shaver v. 
 Brainard, 29 Barb. 25. 
 
 "The best reasoning of the author- 
 ities seems to establish the rule 
 that the debtor's presence as a 
 defendant is superfluous in suits 
 brought against fraudulent alienees 
 to annual specific covinous convey- 
 ances. The transfer is conclusive 
 upon him, and hence his joinder 
 cannot aid the creditor or benefit 
 the debtor, the suit is a proceeding 
 in rem to clear the title to the 
 property only so far as the credit- 
 or's needs may require; under es- 
 tablished principles of law the 
 debtor can gain nothing by it; he 
 is practically a stranger to the prop- 
 erty, nor can be prejudiced by a 
 decree which applies the property 
 to the payment of a fixed judgment 
 debt. On the other hand, where 
 the suit prosecuted is purely a cred- 
 itor's bill embodying the elements 
 
 of a bill of discovery the debtor's 
 presence would seem to be essential 
 to the jurisdiction of the courts. 
 The practitioner must be careful to 
 distinguish between an action in- 
 stituted to reach specific property 
 fraudulently alienated and a suit 
 brought to discover equitable inter- 
 ests which are not subject to exe- 
 cution and the title to which is in 
 the debtor. In the latter case the 
 debtor must of necessity be a de- 
 fendant." Wait on Fraudulent 
 Conveyances, 2nd. Ed., 129. 
 
 2Fox 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. 
 
 3Bu£Sngton 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. 
 
 ^Taylor v. Webb, 54 Miss. 36; 
 Wall V. Fairley, 73 N. C. 464; Jack- 
 man V. Robinson, 64 Mo. 289; Bire- 
 ley z/. Staley, 5 G. & J. 432; Mc- 
 Cutchen v. Peigne; 4 Heisk. 565; 
 Merry v. Fremon, 44 Mo. 518; Dock- 
 ray V. Mason, 48 Me. 178; Cornell zi. 
 Radway, 22 Wis. 260; Jackson v. 
 Forrest, 2 Barb. Ch. 576. Contra, 
 Boggs V. McCoy, 15 W. Va. 344; 
 Bachman v. Sepulveda, 39 Cal. 688; 
 Scriven v. Bostick, 2 McCord Ch. 
 410 ;Coates v. Day, 9 Mo. 304; Postle- 
 wait V. Howes, 3 Iowa, 365; Peaslee 
 
544 REMEDIES. 
 
 be made parties, for they have no interest in the property.^ 
 
 § 557. When Grantee is a Necessary Party. — The grantee is 
 a necessary party.^ If there are more grantees than one, 
 then all the grantees must be made parties.' If the grantee, 
 however, has parted with his interest in the property he is 
 not a necessary party.* 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.^ When 
 the fraudulent conveyance consists of an assignment, the 
 creditors whose debts are provided for in it are not necessary 
 parties.^ But in other cases of trust the cestui que trust 
 is a necessary party as well as the trustee, for the benefi- 
 ciary owns the equitable and ultimate interest to be affected 
 by a decree.^ 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 
 persuance thereof as a post-nuptial settlement.^ A person 
 through whom the title has passed from the debtor to the 
 
 V. Barney, t Chip. 331, 6 Am. Dec. Taylor v. Wild, 8 Beav, 159; vide 
 
 743; Chamberlayne v. Temple, 2 Sockmaa v. Sockman, 18 Ohio 362. ■ 
 
 Rand. 384, 14 Am. Dec. 786; Simp- 3Ward v. Hollins, 14 Md. 158. 
 
 son V. Simpson, 7 Humph, 275; *Jackmaii v. Robinson, 64 Mo. 
 
 Pharis v. Leachman, 20 Ala. 662; 289. 
 
 McDowell V. Cochran, 11 111. 31; 6 Union Nat'l Bank v. Warner, 19 
 
 Barton v. Bryant, 2 Ind. 189; Cobb N. Y. Supr. 306. 
 
 v. Norwood, 11 Tex. 556; Snodgrass BGrover v. Wakeman, 11 Wend. 
 
 V. Andrews, 30 Miss. 472, 64 Am. 187, s. c. 4 Paige, 23, 25 Am. Dec. 
 
 Dec. 169. 624; Irwin v. Keen, 3 Whart. 347; 
 
 ISmith z/. Grim, 26 Penn. 95, 67 M'Kinley v. Combs, i Mon. 105; 
 
 Am. Dec. 400; Taylor v. Webb, 54 Therasson v. Hickok, 37 Vt. 454; 
 
 Miss. 36; Wall V. Fairley, 73 N. C. Scudder v. Voorhis, 5 Sandf. 271; 
 
 464- Bank v. Suydam, 6 How. Pr. 379; 
 
 2Rock v. Dade, May on Fraud, Russell v. Lasher, 4 Barb. 232; 
 
 519; Hightower v. Mustian, 8 Geo. Rogers v. Rogers, 3 Paige, 379, 27 
 
 5o6;Tichenorp. Allen, i3Gratt. 15; Am. Dec. 84. Conira, Thornb'ury 
 
 Bdmeston v. Lyde, i Paige, 637, 19 v. Baxter, 24 Ark. 76. 
 Am. Dec. 454; Winchester v. Cran- 7Day v. Wetherby, 29 Wis. 363. 
 
 dall, I Clarke, 371; Hammond v. Contra, Tucker v. Zimmerman, 61 
 
 Hudson River Co., 20 Barb. 378; Geo. 599. 
 
 Gray v. Schenc^, 4 N. Y. 460; SRinnard w. Daniel, 13 B. Mon. 
 
 Brevard v. Sumnar, i Heisk. 97; 496. 
 Jackman v. Robinson, 64 Mo. 289; 
 
REMEDIES. 
 
 545 
 
 grantee is a proper^ but not necessary party .^ A purchaser 
 from the grantee is a necessary party .^ If the property is 
 in fee the administrator of the grantee is not a necessary 
 party.^ A creditor who intervenes in an attachment suit 
 claiming the benefit thereof is a proper but not necessary 
 party to a bill filed to enforce the attachment lien.^ Those 
 who had interests in the property prior to the transfer,^ 
 and the grantor of property which has been fraudulently 
 purchased in the name of anothe.r,^ and a purchaser 
 pendente lite,^ 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 is not a necessary 
 party if the validity of his mortgage is not impeached.^ 
 Several grantees claiming different portions of the property 
 by distinct conveyances may be joined, for the object is to 
 obtain satisfaction out of such property, and this is single.^" 
 
 IBennettz/.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. Y. Supr. 46; Tompkins v. Levy, 
 87 Ala. 263, 13 Am. St. Rep. 31, 6 
 So. 346. 
 
 ^Walter v. Riehl, 38 Md. 211; 
 Jackman v. Robinson, 64 Mo. 289; 
 Stout V. Stout, 77 Ind. 537; Tomp- 
 kins V. Levy, 87 Ala. 263, 13 Am. St. 
 Rep. 31, 6 So. 346. In this last case 
 the personal representative of a 
 deceased husband was held not a 
 necessary party in a suit to subject 
 the proceeds of a life insurance 
 policy to his debts. 
 
 3Gray v. Schenck, 4 N. Y. 460; 
 Brevard v. Sumnar, i Heisk. 97; 
 Potter V. Stevens, 40 Mo. 229; 
 Thornbury v. Baxter, 24 Ark. 76. 
 
 4McCutchen v. Peigne, 4 Heisk. 
 365; Cookingham ». Ferguson, 8 
 Blatch. 488, s. c. 4 N. B. R. 636. 
 
 ^Williams v. Michenor, it N. J. 
 Eq. 520. 
 
 BVenable v. Bank, 2 Pet. 107; 
 Erfortz/. Consalus, 47 Mo. 208; Wal- 
 ter V. Rifhl, 38 Md. 211; McRae v. 
 
 Branch Bank, 19 How. 376; Reydolds 
 V. Hark, 5 Lans. 149. Contra, Wil- 
 liams V. Michenor, 11 N. J. Eq. 520. 
 
 'Ballentine v. Beall, 4 111. 203; 
 Whitmore v. Woodward, 28 Me. 392. 
 
 SSchaferman v. O'Brien, 28 Md. 
 565, 92 Am. Dec. 708. 
 
 9Trego V. Skinner, 42 Md. 426. 
 lOHamlin v. Wright, 23 Wis. 491; 
 Chase v. Searles, 45 N. H. 511; 
 BrinckerhofE 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, 
 64 Am. Dec. 169; 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, 84 Am. Dec. 142; Randolph 
 V. Daly, 16 N. J. Eq. 313; Banks. 
 Suydam, 6 How. Pr. 379; Reed v. 
 Stryker, 4 Abb. Ap. 26; Trego v- 
 Skinner,42 Md; 426; Waller v. Shan- 
 non, 53 Missi 500; Donovan v. Dun- 
 ning, 69 Mo. 436; Bauknight v. 
 Sloan, 17 Fla. 284; Bank v. Harris, 
 84 N. C. 206; Van|Kleeck v. Miller, 
 19 N. B. R. 484. 
 
546 REMEDIES. 
 
 So also where tlie judgment is joint and separate convey- 
 ances are made by each of the debtors, all the grantees 
 may be united.^ 
 
 § 558. Averments of Bill.— The facts which give jurisdic- 
 tion 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.^ If the debt consists of a judg- 
 ment, the bill must show against whom the judgment was 
 rendered.^ The bill must aver the facts which give a lien 
 or confer jurisdiction without a lien.* If it is filed by sim- 
 ple contract creditors it should be filed on behalf of all the 
 creditors.* The fact that the debtor has transferred his 
 property must be specifically and formally alleged,^ and a 
 description of the property must also be given.^ In order 
 to create a Us 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 under it.® 
 
 § 559. Bill must show need of equitable relief.— 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 
 
 IPlanters' Bank o. Walker, 7 Ala. (N. S.) 163; Barton v. Bryant, 2 Ind. 
 
 926; Royer Wheel Co. v. Fielding, 189; Strike v. M'Donald, 2 H. & G. 
 
 61 How. Pr. 437. 191; s. c. I Bland, 57; Wright v. 
 
 swalthall V. Rives, 34 Ala. 91; Campbell, 27 Ark. 637; Hunt v. 
 
 Strike v. M'Donald, 2 H. & G. 191; Field, 9 N. J. Eq. 36. 
 s. c. I Bland, 57. BMcElwain v. Willis, 9 Wend. 
 
 3Lipperd v. Edwards, 39 Ind. 165. 548; s. c. 3 Paige, 505. See Gibbons 
 
 ^McElwain v. Willis, 9 Wend. v. Pemberton, loi Mich. 397, 45 
 
 548; s. c. 3 Paige, 505; Beardsley Am. St. Rep. 417, 59 N. W. 663. 
 Scythe Co. v. Foster, 36 N. Y. 561; 7King v. Trice, 3 Ired. Eq. 568. 
 
 s. c. 34 How. Pr. 97. SMiller v. Sherry, 2 Wall. 237; 
 
 BReese River Mining Co. v. At- McCaulay v. Rodes, 7 B. Mon. 462. 
 well, Xi. R. 7 Eq. 3471 »• c. 20 L. T. SMillerz/. Sherry, 2 Wall. 237. 
 
REMEDIES. 
 
 547 
 
 Mm in obtaining satisfaction of his debt, for if the debtor 
 at the time of the filing of the bill has other property suffi- 
 cient to satisfy the debt, there is no necessity for the credit- 
 or to resort to equity.^ When the debtor is deceased, the 
 bill must allege a deficiency^ of the personal assets. An 
 exhaustion of them, however, need not be alleged.^ If a 
 partnership creditor seeks to reach individual property which 
 has been disposed of by a fraudulent conveyance, it is not 
 necessary that he shall allege that he has exhausted the 
 partnership assets.^ A creditor who takes judgment 
 against a surviving partner alone may make the judgment 
 out of his individual property.^ 
 
 §560. €harge of Fraud. — Fraud must be charged^ and 
 this should in general be done by setting forth the facts 
 which constitute the fraud.^ A mere allegatibn imputing 
 motives of fraud is not sufficient.* But an averment of an 
 
 iDunham v. Cox, lo N. J. Eq. 
 437, 64 Am. Dec. 460; Harris v. Tay- 
 lor, 15 Cal. 348; Payne v. Sheldon, 
 63 Barb. 169; s. c. 43 How. Pr. i; 
 Bruker v. Kelsey, 72 Ind. 51; Baugh 
 V. Boles, 35 Ind. 524. See sections 
 537-540, ante. 
 
 2State Bank v. Ellis, 30 Ala. 478; 
 Quarles v. Grigsby, 31 Ala. 172. 
 
 3McLaughlin v. Bank of Poto- 
 mac, 7 How. 220. 
 
 ^Randolph v. Daly, 16 N. J. Eq. 
 313; vide Postlewait v. Howes, 3 
 Iowa, 365. 
 
 sPostlewait v. Howes, 3 Iowa, 
 
 365- 
 
 8Richardson v. Horton, 7 Beav. 
 112; Baker v. Chandler, 51 Ind. 85; 
 Carter v. Dickinson, 13 Ir. Ch. 109; 
 Plunkttt V. Plunkitt, 114 Ind. 484, 
 17 N. E. 562, 16 N. E.612; Hutchin- 
 son V. First National Bank, 133 Ind. 
 271, 36' Am. St. Rep. 537, 30 N. E. 
 952; Fort Payne Furnace Co. v. Fort 
 Payne Coal and Iron Co., 96 Ala. 
 472, 38 Am. St. Rep. 109, 11 So. 439. 
 
 7Prentice v. Madden, 4 Chand. 
 170; Catchings v. Manlove, 39 Miss. 
 
 655; Kinder v. Macy, 7 Cal. 206; 
 Meeker v. Harris, 19 Cal. 278; Har- 
 ris V. Taylor, 15 Cal. 348; Jessup v. 
 Hulse, 29 Barb. 539; s. c. 21 N. Y. 
 168; Hovey v. Holcomb, 11 111. 660; 
 Rowland v. Coleman, 45 Geo. 204; 
 Pence v. Croan, 51 Ind. 336. 
 
 SRowland v. Coleman, 45 Geo. 
 204; Flewellen v. Crane, 58 Ala. 627 ; 
 Pickett V. Pipkin, 64 Ala. 920; Gal- 
 loway V. Peoples' Bank, 54 Geo. 441; 
 Steele v. Moore, 54 Ind. 52; Fort 
 Payne Furnace Co. z*. Coal and Iron 
 Co., 96 Ala. 472, 38 Am. St. Rep. 109, 
 1 1 So. 439. In this last case the court 
 said: " A mere general averment of 
 fraud, as that a conveyance or a 
 sale or other disposition, made or 
 threatened, was oris with fraudulent 
 intent, is not sufficient in pleading. 
 Fraud is a conclusion. The con- 
 duct and facts from which the con- 
 clusion is deduced must be averred 
 so that issue can be formed on the 
 averments. We do not mean that 
 all the details must be given, but 
 the substantial facts which consti- 
 tute the bad faith must be set out." 
 
548 REMEDIES. 
 
 intent to delay, hinder or defraud creditors is not an aver- 
 ment of a conclusion of law but of ap. essential fact.^ 
 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.^ 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,* or tainted 
 with actual fraud.* If the transfer was made for a valu- 
 able consideration, there must be an allegation that the 
 grantee participated in the fraud.^ If the transfer, how- 
 ever, was voluntary, an allegation that the donee partic- 
 ipated in the fraud is not necessary.^ 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.^ Certainty to a common intent is all 
 that is required in chancery pleadings. The accuracy which 
 would exclude every other conclusion is not required.® 
 
 iPlatt V. Mead, 9 Fed. Rep. gi; ton, 56 Ind. 34; Bentley v. Dunkle, 
 
 Morgan v. Bogue, 7 Neb. 429. 37 Ind. 374; Price v. Sanders, 60 
 
 2Hovey v. Holcomb, ir 111. 660; Ind. 310; Wiley v. Bradley, 67 Ind. 
 
 Catchings v. Manlove, 39 Miss. 655; 560; Whitesel v. Hiney, 60 Ind. 68; 
 
 Moreland v. Atcliison, 34 Tex. 351. Noble v. Hines, 72 Ind. 12; vide 
 
 SSberman v. Hogland, 54 Ind. Hager v. Shindler, 29 Cal. 47. 
 578; Brookbank v. Kennard, 41 Ind. SKleiu v. Horine, 47 111. 430; 
 
 339; Romine v. Romine, 59 Ind. 346; Spaulding v. Myers, 64 Ind. 264. 
 Piatt V. Mead, 9 Fed. Rep. 91. 6i,aughton v. Hardin, 68 Me. 
 
 4Ewing V. Patterson, 35 Ind. 208; Spinner v. Weick, 50 Ind. 213. 
 326; Baugb V. Boles, 35 Ind. 524; 7McLure v. Ashby, 7 Rich. Eq. 
 
 Pence v. Croan, 51 Ind. 336; 430; Erickson v. Quinn, 3 Lans. 
 
 Deutsch V. Kossmeier, 59 Ind. 373; 299; s. c. 47 N. Y. 410; Carr v. Hil- 
 
 Wedekind v. Parsons, 64 Ind. 290; ton, i Curt. 230, 390; Shannon v. 
 
 Alfordz^. Baker, 53 Ind. 279; Spauld- White, 6 Rich Eq. 96; Combs v. 
 
 ing V. Myers, 64 Ind. 264; Pfeifer Watson, 32 Ohio St. 208; 
 V. Snyder, 72 Ind. 78; Spaulding v. SPope v. Wilson, 7 Ala. 690. 
 
 Blythe, 73 Ind. 93; Evans v. Haniil- 
 
REMEDIES. 549 
 
 § 661. 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.^ 
 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 upoQ a subsequent discovery 
 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.^ 
 
 § 562. Objection to Joinder of Parties.— The defendant 
 waives the objection of a misjoinder of complainants by 
 answering the bill.* When a bill is defective for want of 
 proper parties, and this defect appears on its face, it is 
 liable to a demurrer,* but if the defect does not appear on 
 its face, the objection can only be taken by plea or answer 
 disclosing who are proper parties.^ -An objection to the 
 nonjoinder of a party defendant which is not taken by de- 
 murrer or answer may be disregarded at the hearing,^ un- 
 less he is a necessary party .^ 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.* 
 
 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.® 
 
 IHeighe v. Farmers' Bank, 5 H. 6Stanwix Bank v. Leggett, 51 N. 
 
 & J. 68. V. 552; Martin v. Walker, 19 N. Y. 
 
 SBaker v. Bartol, 6 Cal. 483. Supr. 46; Union Nat'l Bank v. 
 
 SAnnin v. Annin, 24 N.J Eq. 184; Warner, 19 N. Y. Supr. 306; Dewey- 
 Lyman V. Place, 26 N. J. Eq. 30. v. Moyer, i5 N. Y. Supr. 473. 
 
 ^Hightower z/. Mustian, 8 Geo. 7postlewait v. Howes, 3 Iowa, 
 
 506. 365- 
 
 5Bay State Iron Co. v. Goodall, spostlewait v. Howes, 3 Iowa,36s. 
 
 39 N. H. 223, 75 Am. Dee. 219; 9Hays v. Doane, 11 N. J. Eq- 84. 
 
 M'Kinley v. Combs, i Mon. 105. 
 
550 REMEDIES. 
 
 § 563. Pleading. — No matter can be pleaded in bar of dis- 
 covery merely when it would be equally valid as a defense 
 to the relief.^ 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.^ 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 con- 
 /esso^ or admits the fraud in his answer,* 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 convey- 
 ance made by him enures 'to the benefit of the wif e.^ 
 
 § 564. Defendant Must Answer Fully. — Whether a3 party 
 can protect himself from making a discovery on the ground 
 that he will thereby subject himself to a criminal prosecu- 
 tion or a forfeiture can not be considered as yet settled.^ 
 To so much of the bill as is material and necessary for the 
 defendant to answer, he must speak directly and without 
 evasion. He must answer the charge not merely literally 
 but confess or traverse the substance of each charge posi- 
 tively 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 of the charges.^ When he is required to 
 
 iBrowaell v. Curtis, lo Paige, 6Bunn v. Bunn, 3 New Rep. 679; 
 
 210. s. c. 12 W. R. 561; Wich V. Parker, 
 
 aciements v. Moore, 6 Wall. 299. 22 Beav. 59; Michael v. Gay, I F. & 
 
 sSands v. Hildreth, 2 Johns. Ch. F. 409; Bay State Iron Co. v. Good- 
 
 35; s. c. 14 Johns. 493; Hollister v. all, 39 N. H. 223, 75 Am. Dec. 219; 
 
 Loud, 2 Mich. 309; Dick v. Hamil- DevoU v. Brownell, 22 Mass. 448; 
 
 ton, I Deady, 322; Pulton v. Wood- Horstman v. Kaufman, 97 Penn. 
 
 man, 54 Miss. 158; Thames v. Rem- 147; vide Reg. v. Smith, 6 Cox C. 
 
 bert, 63 Ala. 561. Cas. 31; Creswell & Coke's Case, 2 
 
 *Glenn v. Grover, 3 Md. 212; s. c. Leon. 8. 
 
 3 Md. Ch. 29; Scheitlin v. Stone, 43 ^Barrow v. Bailey, 5 Fla. 9; Croft 
 
 Barb. 634; s. c. 29 How. Pr. 355; Kit- v. Arthur, 3 Dessau. 223; Phippen v. 
 
 tering v. Parker, 8 Ind. 44; Herd v. Durham, 8 Gratt. 457; Bailey v. 
 
 Rust, 4 Bibb, 331. NicoU, i Edw. 32; Ronald v. Bank, 
 
 BSalmon v. Smith, 58 Miss. 399. of Princeton, 90 Va. 813, 20 S. E. 
 
 780. 
 
REMEDIES. 551 
 
 meet an allegation that the debtor had no other property, 
 he must do so directly or by a statement of facts which 
 negative it.^ A party who claims protection as a pur- 
 chaser 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.^ 
 
 § 565. 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.'^ 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.* 
 
 § 566. Cross-Bill. — A voluntary grantee may subject other 
 property of the grantor first to the satisfaction of the cred- 
 itor's claim by a proper cross-bill.^ The debtor may pre- 
 sent his claim to an exemption by a cross-bill, for it is 
 germane to and grows out of the original bill." 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 .^ 
 
 iWelcker v. Price, 2 Lea, 666. sxhomason v. Neeley, 50 Miss. 
 
 2Miller v. Fraley, 21 Ark. 22; 310. 
 Byers v. Fowler, 12 Ark. 218; Stan- TDeweyz/. Littlejohn, 2 Ired. Eq. 
 
 ton V. Green, 34 Miss. 576; Fried- 495; Pomeroy v. Manin, 2 Paine, 
 
 enwald v. MuUan, 10 Heisk. 226. 476; Blow v. Gage, 44 111. 208; 
 
 SHughes V. Bloomer, 9 Paige, 269, Phettiplace v. Sayles, 4 Mason, 312; 
 
 4Ricliards v. Swan, 7 Gill. 366, s. Glenn v. Randall, 2 Md. Ch. 220; 
 
 c. 2 Md. Ch. Jii. Green v. Tanner, 49 Mass. 411; 
 
 SLeonard v. Forcheimer, 49 Ala. Hartstorne v. Eames, 31 Me. 93. 
 345- 
 
552 REMEDIES. 
 
 In a suit to foreclose a mortgage against the mortgagor 
 and the grantee of the equity of redemption, the mortga- 
 gor may file a cross-bill to set aside a conveyance of the 
 equity^of redemption.^ 
 
 § 567. 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,^ but averments 
 which are not responsive to the bill must be sustained by 
 proof.^ Statements which consist of explanations or 
 qualifications of an admission are responsive,* 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 aver- 
 red.^ 
 
 § 568. How Denial may be Overcome. — A denial of fraud 
 in the answer is not conclusive.® An answer, however, 
 which is responsive to the bill and denies the allegations 
 made therein in regard to the motives and intentions of 
 the parties is conclusive, unless it is overcome by the testi- 
 mony of two witnesses, or of one witness with corrobora- 
 ting circumstances.^ If the answer, however, admits facts 
 
 iDavison v. Vickery, 150 111. Am. Dec. 712; Edgintonz/. Williams, 
 
 398, 37 N. E- — . Wright, 439; Griffin v. Wardlaw, 
 
 SSanborn v. Kittredge, 20 Vt. Harp. Ch. 481; Burtus v. Tisdall, 4 
 
 632; McNeal v. Glenn, 4 Md. 87; s. Barb. 571; Dick v. Grissom, i Preem. 
 
 c. 3Md. Ch. 349; Grover «. Wake- Ch. (Miss.) 428; King z/. Payan, 18 
 
 man, 4 Paige, 23, s. c. 11 Wend. Ark. 583; Ing v. Brown, 3 Md. Ch; 
 
 187, 25 Am. Dec. 624. 321. 
 
 SGlenn v. Randall, 2 Md. Ch. Bfidwards v. Rogers, 41 111. App. 
 
 220; Eastman v. M'Alpin, i Geo. 405. 
 
 157; Glenn v. Grover, 3 Md. 2r2; s. 7Moffatt v. McDowell, i McCord 
 
 c. 3 Md. Ch. 29. Ch. 434; Myers v. Kinzie, 26 111. 36; 
 
 ^Clements v. Moore, 6 Wall. 299; Blow v. Gage, 44 111. 208; Feigley v. 
 
 Randall v. Phillips, 3 Mason, 378; Feigley, 7 Md. 537, 61 Am. Dec. 
 
 Cummings v. McCullough, 5 Ala. 375; Glenn v. Grover, 3 Md. 212, s. 
 
 324; Brown v. M'Donald, i HillCh. c. 3 Md. Ch. 29; Green v. Tanner, 
 
 297; Hampson v. Sumner, 18 Ohio, 49 Mass. 411; Gray v. Paris, 7 Yerg. 
 
 444; Stanton v. Green, 34 Miss. 155; Allen w. Mower, 17 Vt. 61; Allen 
 
 576. White, 17 Vt. 69; Jenison v. Graves, 
 
 SHoww. Camp, Walk. Ch. 427; 2 Blackf. 440; Clark v. Bailey, 2 
 
 Miller «. Tolleson, Harp. Ch. 145, 14 Strobh. Eq. 143; Parkhurst v. Mc- 
 
REMEDIES. 553 
 
 from wMch a conclusive presumption of a fraudulent in- 
 tent must be drawn, the denial of tlie answer is overcome.^ 
 A positive denial will not prevail against admissions in the 
 answer of facts which show that the transfer was fraudu- 
 lent.^ Pregnant or slight circumstances, however, are not 
 sufficient.^ When there is a general denial of all fraud, 
 facts specifically and particularly charged in the bill can 
 not be taken to be true although they are not denied in the 
 answer, for objections to the answer for the want of par- 
 ticularity and fullness should be taken by exceptions to its 
 sufficiency.* 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 spe- 
 cific as to the matter charged in the bill. So in weighing 
 the whole evidence in the case the fact that the defendant 
 only answers generally will operate against him 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.^ 
 When the cause is heard on bill and answer, all pertinent 
 facts stated in the answer must be taken to be true.® In 
 
 Graw, 24 Miss. 134; Kittering v. 265, 84 Am. Dec. 151; Ivitchfield z/. 
 
 Parker, 8 Ind. 44; Culbertson v. Pelton, 6 Barb. 187. 
 
 Luckey, 13 Iowa, 12; 'Weight v. 3Glenn v. Grover, 3 Md. 212, s. c. 
 
 Wheeler, 14 Iowa, 8; Wightman v. 3 Md. Ch. 29; How v. Camp, Walk. 
 
 Hart, 37 111. 123; Walter v. McNabb, Ch. 427- 
 
 I Heisk. 703; Hoboken Bank z;. *Parkman ». Welch, 36 Mass. 231; 
 
 Beekman, 33 N. J. Eq. 53. Waterbury v. Sturtevant, 18 Wend. 
 
 IGrover v. Wakeman, 11 Wend. 353; McRea v. Branch Bank, 29. 
 
 187, s. c. 4 Paige, 23, 25 Am. Dec. How. 376. 
 
 624; Cunningham v. Freeborn, 11 sParkmanz/. Welch, 36 Mass. 231; 
 
 Wend. 241, s. c. i Edw. 256, s. c. 3 Waterbury v. Sturtevant, 18 Wend. 
 
 Paige, 537; Fiedler v. Day, 2 Sandf. 353; Hawkins v. Allston, 4 Ired. Eq. 
 
 594; Cook V. Johnson, 12 N. J. Eq. 137; Enders v. Swayne, 8 Dana, 103; 
 
 51. Gamble v. Johnson, g Mo. .605. 
 
 SRobinson v. Stewart, 10 N. Y. BHeydock v. Stanhope, i Curt. 
 
 189; Belford v. Crane, 16 N. J. Eq. 47i; Heacock v. Durand, 42 111. 230. 
 
554 REMEDIES. 
 
 «iich cases mere badges of fraud disclosed in the answer 
 are not suflScient to overcome the denial of fraud.i 
 
 § 569. 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.^ 
 
 § 570. 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.* The plea may be set up 
 as a bar to the demand* or to the title to the property. 
 Such a plea can not be put in after a defense has been 
 made to the claim.^ In determining its suflSciency the 
 •substance of the objection must govern rather than the 
 form in which it is presented.^ The original complainant 
 may rely upon the statute of limitations in opposition to 
 the claims of other creditors who come in after the institu- 
 tion of the suit/ The plea of the statute of limitations in 
 the answer will not apply to claims that are filed subse- 
 quently. The defense as to such claims must be taken by 
 «xceptions.® The complainant's claim to relief is to be re- 
 ferred 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 
 
 ^Marshall v. Croom, 52 Ala. 554. 192; Fox v. Wallace, 30 Miss. 660; 
 
 SMyers v. Fenn, 5 Wall. 205; Kennedy v. Stout, 26 111. App. 133. 
 ■Strike v. M'Donald, 2 H. & G. 191; ewilhams v. Banks, 19 Md. 22; s. 
 
 s. c. I Bland, 57; Johnston v. Markle c. 11 Md. 198. 
 
 Paper Co., 153 Penn. St. 189, 25 Atl. BMcDowell v. Goldsmith, 24 Md. 
 
 885. 214; s. c. 2 Md. Ch. 370, s. c. 6 Md. 
 
 ^Strike v. M'Donald, 2 H & G. 319, 61 Am. Dec. 305. 
 191; a. c. I Bland, 57; Retzer v. ^strike v. McDonald, 2 H. & G. 
 
 Wood, 109 U.S. 185, 3 S. Ct. 164; 191; s. c. I Bland, 57; McDowell v. 
 
 TJpton V. Mclyaughlin, 105 U. S. Goldsmith, 6 Md. 319; s. c. 2 Md. 
 
 640; Harding v. County, 42 Fed. Ch. 370; s. c. 24 Md. 214, 61 Am. 
 
 657; Humphreys v. Butler, 51 Ark. Dec. 305. 
 351, II S. W. 479. SWilliams v. Banks, 11 Md. 198; 
 
 ^McDowell V. Goldsmith, 6 Md. s. c. 19 Md. 22; McDowell v. Gold- 
 
 319; s. c. 2 Md. Ch. 370; s. c. 24 Md. smith, 24 Md. 214; s. c. 2 Md. Ch. 
 
 214; 61 Am. Dec. 305; Lott v. De 370. s. c. 6 Md. 319, 61 Am. Dec. 
 
 ■Graffenreid, 10 Rich. Eq. 346; 305. 
 M'Clenney v, M'Clenney, 3 Tex. 
 
REMEDIES. 555 
 
 'be barred by lapse of time during the pendency of the 
 suit.^ The statute continues to run against other creditors 
 until they come in by filing their petition or the vouchers 
 of their claims.^ If a judgment is recovered against the 
 ■debtor after the transfer, but before the claim is barred, 
 the original claim becomes merged in the judgment, and 
 the plea of limitations against the original claim will not 
 avail.^ If the claim, however, is barred before judgment, 
 a confession of judgment by the debtor after the transfer 
 will not defeat the plea.* If the statute began to run 
 before the conveyance, it is not suspended thereby.^ 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.® 
 
 § 571. 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.^ 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.^ 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 
 
 iHunt V. Knox, 34 Miss. 655. 7Porter v. Cocke, Peck, 30; Blan- 
 
 2Strike v. McDonald, 2 H. & ton v. Whitaker, 11 Humph. 313; 
 
 G. 191, s. c. 1 Bland, 57; McDowell Robbins v. Sackett, 23 Kans. 301; 
 
 V. Goldsmith, 6 Md. 319; s. c. 2 Md. Lockard v. Nash, 64 Ala. 365; Os- 
 
 Ch. 370; 's. c. 24 Md. 214, 61 Am. borne v. Wilkes, 108 N. C. 651, 13 S. 
 
 Dec. 305. E. 285; Weaver v. Haviland, 68 Hun 
 
 SSchaferman v. O'Brien, 28 Md. 376, 22 N. Y. Supp. 1012. In the 
 
 565, 92 Am. Dec. 708; Williams v. last case it is held that that section 
 
 Banks, 11 Md. 198; s. c. 19 Md. 22. of the New York statute which fixes 
 
 ^McDowell V. Goldsmith, 24 Md. the period of limitation for equit- 
 
 214; s. c. 2 Md. Ch. 370; s. c. 6 Md. able actions on the ground of fraud 
 
 319, 61 Am. Dec. 305; vide Joaes v. applies to a suit to set aside a f raud- 
 
 R.ead, i Humph. 335. ulent conveyance, 
 
 6Reed V. Minell, 30 Ala. 61. SMusselman v. Kent, 33 Ind. 452; 
 
 BHalfman v. Ellison, 51 Ala. 543. Bobb v. Woodward, 50 Mo. 95. 
 
556 REMEDIES. 
 
 will bar the claim of a creditor.^ 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,^ in others,, 
 from the time when the creditor obtains judgment,^ in 
 others, from the time of the levying of an execution on the 
 property,* and in others from the time of a sale under an 
 execution.^ 
 
 § 572. Limitations Affected by Statute. — 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 ob- 
 taining judgment, it was held that the statute began to run 
 from the time when the debt was due.® 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.^ 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 tribunal.® When the property is such that it 
 
 IBelt V. Raguet, 27 Tex. 471; Perry, 23 Tex. 414; Reynolds ®. 
 
 Peterson v. Williamson, 2 Dev. 326; Lansford, 16 Tex. 286; Musselman 
 
 Dobson V. Erwin, 4 Dev. & Bat. 201; v. Kent, 33lnd. 452;Marrz'. Rucker, 
 
 I Dev. & Bat. 569; Law v. Smith, 4 i Humph. 348. In the last case it 
 
 Ind. 56. was held that the statute did not 
 
 2Reeves v. Dougherty, 7 Yerg. begin to run until a judgment was 
 
 222; Bobb V. Woodward, 50 Mo. 95; rendered in the state where the 
 
 Scriven v. Bostwick, 2 McCord Ch. property was. 
 
 410; Bank v. Ballard, 12 Rich. 259; ^Wilson v. Buchanan, 7 Gratt. 
 
 Gregg V. Bigham, i Hill (S. C.) 299, 334; Dodd v. McCraw, 8 Ark. 83, 46 
 
 26 Am. Dec. i8i. Am. Dec. 301. 
 
 Where a fraudulent conveyance epickett v. Pickett, 3 Dev. 6; 
 
 is recorded the statute begins to run Hoke v. Henderson, 3 Dev. 12; Dob- 
 
 from the date of filing for record. son v. Erwin, 4 Dev. & Bat. 201; i 
 
 Sims V. Gray, Iowa, 61 N. W. 171; Dev. & Bat. 569; Beach v. Catlin, 4 
 
 Cockrell v. Cockrell, Ky., 15 S. W. Day, 284, 4 Am. Dec. 221; Law v. 
 
 1119- Smith, 4 Ind. 56. 
 
 SRamsey v. Quillen, 5 Lea, 184; BMulloy v. Paul, 2 Tenn. Ch. 156. 
 
 Porter v. Cocke, Peck, 30; Jones v. 7Rogers v. Brown, 61 Mo. 187. 
 
 Read, i Humph. 335; Compton v. SMartel v. Somers, 26 Tex. 551. 
 
REMEDIES. 
 
 557 
 
 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.^ If the grantee is also admin- 
 istrator, he can not plead the statute of limitations.^ As a 
 purchaser at a sale under an execution succeeds to the rights 
 of the execution creditor, his right to the property will be 
 barred at the time when the right of the creditor would 
 have been barred.^ 
 
 § 573. Laches — Limitations Run only from Discovery.— 
 
 The statute of limitations is not obligatory upon a court of 
 «quity, 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 
 
 iGates V. Andrews, 37 N. Y. 637, 
 97 Am. Dec. 764; Eyre v. Beebe, 28 
 How. Pr. 333; Weaver v. Haviland, 
 €8 Hun 376, 22 N. Y. Supp. 1012. 
 
 ^Stephens v. Barnett, 7 Dana, 
 
 257- 
 
 SPorter v. Cocke, Peck, 30; Rog- 
 ers V. Brown, 61 Mo. 187; vide 
 Hager v. Shiudler, 29 Cal. 47; Stew- 
 , art y. Thompson, '32 Cal. 260. In 
 Pickett V. Pickett, 3 Dev. 6, it was 
 lield 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. 
 
 ^Laches. — "A^ourt of chancery 
 is said to act on its own rules in re- 
 gard to stale demands, and inde- 
 pendent of the statute. It will re- 
 fuse to give relief where a party has 
 long slept on his rights and where 
 the possession of the property 
 claimed has been held in good 
 faith, without disturbance, and the 
 property has greatly increased in 
 -value." Boone v. Chiles, 10 Pet. 248, 
 It is the rule in equity, that al- 
 though the statute of limitations is 
 not binding upon equitable tribu- 
 nals, yet they will not enforce a stale 
 
 claim, or interfere in behalf of one 
 who has slept on his rights. Speidel 
 V. Henrici, 120 U. S. 377, 7 S. Ct. 
 710; Martin v. Gray, 142 U. S. 236, ' 
 12 S. Ct. 186; Mackall v. Casilear, 
 137 U. S. 556, II S. Ct. 178; Ham- 
 mond V. Hopkins, 143 U. S. 224, 12 
 S. Ct. 418; Woodw. Perkins, 57 Fed. 
 261; Nadds V. Bardon, 51 Fed. 498; 
 Lemoine v. Dunklin County, 46 Fed. 
 221; Riddle z/.Whitehill, 13s U.S. 634, 
 10 S. Ct. 924; Underwood v. Dugan, 
 159 U. S. 383; Leggett V. Oil Co., 
 149 U. S. 294, 13 S. Ct. 902; Reed v. 
 Dingess, 56 Fed. 176; R. R. Co. v. 
 Sage, 49 Fed. 324; Roach v. Car- 
 afia, 85 Cal. 446, 25 Pac. 22; Luco v. 
 De Toro, 91 Cal. 418, 27 Pac. 1082; 
 Currier v. Studley, 159 Mass. 20, 
 
 34 N. E. ; Fawcett v. Faw- 
 
 cett, 85 Wis. 337; Bell v. Hudson, 
 73 Cal. 287, 14 Pac. 791; Groenen- 
 dyke v. CofEeen, 109 111. 329; Frost 
 V. Wolf, 77 Tex. 455, 19 Am. St. 
 Rep. 761, 14 S. W. 440. 
 
 Ordinarily courts of equity fol- 
 low the statute of limitations but 
 are not compelled to do so. Rey- 
 nolds V. Sumner, 126 111. 58, 9 Am. 
 St. Rep. 523, 18 N. E. 354. Com- 
 
558 
 
 REMEDIES. 
 
 its subserviency to the ends of justice, it does not follow 
 the statute when such a course would be obviously subver- 
 sive of justice. In equity therefore the statute does not 
 commence to run until the discovery of the fraud.^ Although 
 a denial of notice of the fraud is a negative proposition. 
 
 pare Cartwright v. McGown, 121 
 111. 388, 2 Am. St. Rep. 105, 12 N. 
 E. 737; Lang Syne Gold Mining Co. 
 V. Ross, 20 Nev. 127, 19 Am. St. 
 Rep. 337, 18 Pac. 358. 
 
 The question of what amount of 
 laches will bar a claim is one con- 
 cerning which no general rule can 
 be stated but each case must be 
 governed by its own circumstances. 
 
 "What constitutes a stale equity 
 is regarded' as a question hardly 
 susceptible of an accurate defini- 
 tion, it is not length of time alone 
 that is a test of staleness, but the 
 question must be determined by 
 the facts and circumstances of each 
 case according to right and justice. 
 Nor in determining whether a claim 
 is stale or not is the court confined 
 to the statutory period, but may re- 
 fuse relief whether the delay is 
 less or greater than that named in 
 the statute." Neppach z/. Jones, 20 
 Ore. 491, 23 Am. St. Rep. 145, 26 
 Pac. 569, 849. See also Hanner v. 
 Moulton, 138 U. S. 495, n S. Ct. 408; 
 Met. Nat'l Bank v. St. Louis Dis- 
 patch Co., 149 U. S. 448, 13 S. Ct. 
 944; Richards v. Mackall, 124 U. S. 
 188, 8 S. Ct. 437; Terry v. Fontaine, 
 83 Va. 456, 2 S. E. 743- Laches, un- 
 like limitations, is not a mere matter 
 of time. Galliher v. Cadwell, 145 
 U. S. 368, 12 S. Ct. 873. 
 
 The doctrine of laches is based 
 on public policy, it being for the 
 interest of society that litigation be 
 discouraged, and it being difficult to 
 do' entire justice when time has 
 obscured the transaction and de- 
 stroyed the evidence. Wilson v. 
 Anthony, 19 Afk. 46; Mackall v. 
 
 Casilear, 137 U. S. 556, 11 S. Ct. 
 178; Hammond v. Hopkins, 143 U. 
 S. 224, 12 S. Ct. 418; Foster z/. Mans- 
 field. 146 U. S. 88, 13 S. Ct. 28; 
 Whitridge v. Whitridge, 76 Md. 85, 
 
 24Atl. , 25 Atl. ; Woodt/. 
 
 I'ox, 8 Utah 380, 401, 32 Pac. 48. 
 
 Mere assertion of a claim will 
 not cure laches. Mackall v. Casi- 
 lear, 137 U. S. 556, II S. Ct. 178P 
 Van Buren v. Stocking, 85 Mich. 
 252, 49 N. W. 50. 
 
 Nor will the institution of a suit 
 of itself relieve a claimant from the 
 charge of laches. Johnston v~ 
 Standard Min. Co., 148 TJ. S. 360, 13 
 S. Ct. 585. 
 
 Financial inability to sue will not 
 excuse laches. Washington v. Opie, 
 14s U. S. 214, 12 S. Ct. 822; Leggett 
 V. Standard Oil Co., 149 U. S. 287, 
 13 S. Ct. 902. 
 
 iMcLure v. Ashby, 7 Rich. Eq. 
 430; Eigleberger v. Kibler, i Hill 
 Ch. 113; Martin v. Smith, l Dillon,. 
 85, s. c. 4 N. B. R.. 27s; Means v. 
 Feaster, 4 Rich. (N. S.) 249; Wynne 
 V. Cornelison, 52 Ind. 312; Bosleyf. 
 Nat'l Mach. Co., 123 N. Y. 550, 25 
 N. E. 990; Halstead v. Grinnan, 152: 
 TJ. S. 412; Kilbourn v. Sunderland,. 
 130 U. S. 505, 9 S. Ct. 594; Kirby v. 
 Ry. Co., 120 U. S. 130, 7 S. Ct. 430; 
 Pearsall v. Smith, 149 U. S. 233, 13 
 S. Ct. 833; Boone v. Ry Co., 139 U. 
 S. 693, II S. Ct. 687; Percy v. Cock- 
 rill,. 53 Fed. 876; Rugan v. Sabin,. 
 53 Fed. 420; Jones v. Smith, 38 Fed. 
 38; Scheftel v. Hays, 58 Fed. 460J 
 Higgfins V. Crouse, 63 Hun 140, 17 
 N. Y. Supp. 696. See Rogers v. 
 Brown, 61 Mo. 187. 
 
REMEDIES. 559 
 
 yet the complainant must aver it in his bill, and it is incum- 
 bent on Mm to offer some evidence in support of the aver- 
 ment to rebut the presumption arising from the lapse of 
 time.^ 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.^ 
 
 § 674. Mere suspicion of fraud is not suflBcient to allow 
 the statute to begin to run. It is necessary to bring home ta 
 the creditor a knowledge of the facts constituting thp fraud- 
 The statute only begins to run from the time when the party 
 has a knowledge of the facts constituting the fraud, or has- 
 the means by which a knowledge of those facts might by 
 proper diligence have been obtained.^ 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.* 
 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 com- 
 
 lErickson v. Quinn, 3 Lans. 299, 386, 10 S. Ct. 942. See sections 183 
 
 s. c. 47 N. Y. 410; Carr v. Hilton, 1 and 184, ante. 
 
 Curt. 390, 230; Baldwin v. Martin, ^Hathaway v. Noble, 55 N. H. 
 
 35 N. Y. Sup. 85. Contra, McLure 508; Carr v. Hilton, i Curt. 230, 390; 
 
 V. Ashby, 7 Rich. Eq. 430; Shannon Martin v. Smith, i Dillon, 85; s. c. 4 
 
 V. White, 6 Rich. Eq. 96; Means v. N. B. R. 275. 
 
 Feaster, 4 Rich. (N. S.) 249. "The law certainly does not con- 
 
 2Bobb V. Woodward, 50 Mo. 95. template such a discovery as would 
 
 sShannon v. White, 6 Rich. Eq. give positive knowledge of a fraud, 
 
 96; Abbey v. Bank, 31 Miss. 434; but such a discovery as would lead 
 
 Snodgrassz/. Bank, 25 Ala. 161; Er- a prudent man to inquiry or action, 
 
 ickson V. Quinn, 47 N. Y. 410; s. c. To hold that the discovery must 
 
 3 Lans. 299; Lawrence v. Norreys, amount to absolute knowledge of 
 
 L. R. 15 App. Cas. 210; Foster z/. the fact of fraud would be to render 
 
 Mansfield, 146 U. S. 88, 13 S. Ct. 28. the statute practically inoperative. 
 
 In order to prevent the statute as such knowledge is rarely had be - 
 
 from running it is not sufficient fore the facts are established by 
 
 that the defrauded party was not adjudication." Hawley v. Page, 77 
 
 aware of the fraud. Some act of la. 239, 14 Am. St. Rep. 275, 42 N. 
 
 concealment must take place on the W. 193. But see contra, Fox v. 
 
 part of the party committing the Zimmerman, 77 Wis. 414,46 N. W. 
 
 fraud. Norris vi Haggin, 136 U. S. 533. 
 
660 REMEDIES. 
 
 mitted, though that knowledge is confined to himself, he 
 must proceed diligently, for the statute in such case will 
 not be suspended.^ 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 
 defraud creditors, yet that intent is a mere conclusion or 
 inference 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.^ The ignorance 
 of an executor will not prevent the running of the statute 
 when the facts were known to the testator.^ Independ- 
 ently of the statute, delay alone may be sufficient to deprive 
 the complainant of his Tight to recover.* 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.^ A marriage set- 
 tlement is protected by the statute.® 
 
 § 575. 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 
 
 IMcI/ure v. Ashby, 7 Rich. Eq. 65 Mich. 503-507, 33 N. W. 44; Effin- 
 
 430; Wood V. Carpenter, loi U. S. ger v. Hall, 81 Va. 106. 
 135; Yancy z-. Cotheran, 32Fed.69o; agricksonw. Quinn, 47 N. Y. 
 
 Jesup V. Ry. Co., 43 Fed. 503; Jones 410; s. c. 3 Lans. 299. 
 V. Smith, 38 Fed. 382; Rugan v. 3I<ott z;. DeGraffenreid, 10 Rich. 
 
 Sabin, 53 Fed. 419; Trust Co. v. Ry. Eq. 346. 
 
 Co., 5oFed. 877;Blandz;. Fleeman, 4Huston v. Cantril, 11 Leigh, 
 
 58 Ark. 91; Dyer v. Taylor, 50 Ark. 136: 
 
 314-320, 7 S. W. 258; De Mares v. 6Bobb v. Woodward, 50 Mo. 95. 
 
 Gilpin, 15 Colo. 76-84, 24 Pac. 568; 6McCue v. Harris, 86 Va. 687, 10 
 
 Board of Supervisors v. Vincent, S. E. 981. 
 
REMEDIES. 561 
 
 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.^ 
 
 § 576. The Decree. — If the special prayers for relief are 
 inapt, the court, under the prayer for general relief, may 
 grant any appropriate reliefs consistent with the case made 
 by the bill.^ 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, oftn not 
 impeach a transfer on a ground not taken in his bill,* or 
 obtain a decree to ^ect a transfer which the bill does not 
 allege to be fraudulent.* When there is no fraud in the 
 transfer, the bill must be dismissed, although the consider7 
 ation therefor is inadequate.' If the transfer is found to 
 be void, the decree should not be a personal decree against 
 the grantee for the debt,^ or for the value of the property 
 where that may still be reached by the creditor,^ but 
 should be a decree vacating the transfer. If a decree is 
 made for a sale, it may be made without ordering any con- 
 
 IBridgford v. Riddle, 55 111. 261; 7pliipps v. Sedgwick, 95 U. S. 3; 
 
 Preston v. Twiner, 36 Iowa, 671. s. c. 12 Blatch. 163; s. c. 5 Ben. 184; s. 
 
 SAnnin v. Annin, 24 N. J. Eq. c. 5 N. B. R. 168; s. c. 10 N. B. R. 
 
 184. 28. 
 
 ^Roberts v. Gibson, 6 H. &. J. But where the fraudulent grantee 
 
 116; Tripp V. Vincent, 3 Barb. Ch. has disposed of the property to an 
 
 613; Bailey v. Ryder, 10 N. Y. 363; innocent purchaser, the proceeds 
 
 Hovey v. Holcomb, 11 111. 660; of the sale become impressed 
 
 Parkhurst v. McGraw, 24 Miss. 134; with a trust in his hands in favor 
 
 Nicholson v. Leavitt, 4 Sandf . 252, of the creditors of the original 
 
 s. c. 6 N. Y. 510, 10 N. Y. 591, 57 grantor, and this trust attaches 
 
 Am. Dec. 499; Myers v. Sheriff, 21 to the money as long as it can 
 
 La. An. 172; Bachman v. Sepulveda, be identified and impresses itself 
 
 39 Cal. 688; Ontario Bank v. Root, on all the assets of the fraudu- 
 
 3 Paige, 478. lent grantee. Murtha v. Curley, 90 
 
 ^Wilson V. Horr, 15 Iowa, 489; N. Y. 372, 12 Abb. N. C. 12; Fergu- 
 
 Hunter v. Hunter, 10 W. Va. 321. son v. Hillman, 55 Wis. 181, 12 N. 
 
 sSmith V. Pate, 3 Rich. (N. S.) W. 389; PuUerton v. Viall, 42 How. 
 
 204. . Pr. 294; Solinsky v. Lincoln Saving 
 
 ePatterson v. McKinney, 97 111. Bank, 85 Tenn. 362, 4 S. W. 836. 
 
 41. See section 623, post. 
 
562 KEMEDIES. 
 
 veyance to be made by either the debtor or the grantee.* 
 When the transfer is annulled the court may leave the cred- 
 itor 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 
 jnstice by directing a sale of the property.^ If the prop- 
 erty was purchased in part with the debtor's money and 
 conveyed to another, the conveyance may be allowed to 
 stand upon the payment of the amount so used.^ If the 
 property in such case has depreciated, the loss arising from 
 a depreciation may be apportioned according to the respec- 
 tive sums invested by the debtor and purchaser.* Where 
 the bill is filed by a purchaser under an execution, a decree 
 setting aside the conveyance is suflBcient.^ The decree 
 may, however, not merely divest the title of the defendant, 
 but may proceed to vest that title in the complainant.® It 
 has, however, been held that if the execution creditor was 
 the purchaser, the purchase might be disregarded and the 
 property sold to satisfy the judgment.'^ A provision in the 
 decree that the defendant shall release to the complainant 
 merely quiets the title, but does not confer an inde- 
 pendent, substantial title under the defendant, so as to 
 bar a claim of dower.^ 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.^ 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 
 
 ICole V. Tyler, 65 N. Y. 73. Con- SQliver v. Moore, 26 Ohio St. 298. 
 
 tra, Van Wyck v. Baker, 17 N. Y. ^ShaefBer v. Fithian, 26 Ohio St. 
 
 Supr. 39. 282. 
 
 SScouton V. Bender, 3 How. Pr. SHagar v. Shindler, 29 Cal. 46. 
 
 185; Yoder v. Standiford, 7 Mon. 6Ames v. Gilmore, 59 Mo. 537; 
 
 478; Planters' Bank v. Walker, 7 Kenealy v. Macklin, 2 Mo. Ap. 541. 
 
 Ala. 926; Hunt v. Knox, 34 Miss. 'Apperson v. Burgett, 33 Ark. 
 
 655; Chatauqua Bank v. White, 6 328; Bennett z/. Hutson, 33 Ark. 762. 
 
 N. Y. 236, s. c. 6 Barb. 589; McCal- swoodworth v. Paige, 5 Ohio St. 
 
 mont V. Lawrence, i Blatch. 232; 70. 
 
 vide Higgins v. York Building Co., 9Rawson v. Fox, 65 111. 200. 
 
 2 Atk. 107; Hendrickson v. Winne, 
 
 3 How. Pr. 127. 
 
REMEDIES. 663 
 
 debtor before tlie fraudulent conveyance was made, and 
 the decree binds the grantee and his heirs and repre- 
 sentatives.^ 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 remain in the grantee's hands.^ 
 
 § 577. How Far Judgment Conclusive.— Although an as- 
 signee of the grantee recovers a judgment in an action con- 
 cerning the property against the grantor and grantee, yet 
 it is not conclusive against a creditor of the grantor.^ A 
 decree is conclusive as against the parties to the suit in all 
 subsequent actions relating to the same subject matter 
 whether it annuls* or establishes^ the conveyance. A 
 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.® 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.^ 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.^ 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 conveyance." 
 
 § 578. Distribution. — If several creditors are parties to 
 the proceedings, the proceeds will be distributed according 
 
 IBeaumont v. Fletcher, 24 Ohio */« re Hussman, 2 N. B. R. 437. 
 
 St. 445. ^-^" '■'^ James S. Antisdel, 18 N. 
 
 SWard V. Enders, 20 111. 519; Bal- B. R. 289; Downer v. Powell, 25 Vt. 
 
 lentine v. Beall, 4 111. 203; Kaupe v. 336. 
 
 Bridge, 2 Robt. 459; Bostwick v. BO'Brien z/. Browning, 18 N. Y. 
 
 Menck, 40 N. Y. 383; Kerr v. Supr. 179. 
 Hutchins, 46 Tex. 384. 7Bradley v. Hunter, 50 Ala. 265. 
 
 SRaymond v. Richmond, 78 N. spisher v. Lewis, 69 Mo. 629. 
 
 Y. 351. 9Hills V. Sherwood, 48 Cal. 386. 
 
564 REMEDIES. 
 
 to the priorities of the various parties, for the funds remain 
 subject to the same liens as the property before the sale.^ 
 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 
 ought not be permitted to stand in the way of their inter- 
 ests, it may be then shown.^ 
 
 § 579. 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.^ 
 
 § 580. Liens. — The filing of a bill by a judgment creditor 
 and the service of process create a lien in equity upon the 
 effects of the debtor. This has been aptly termed an 
 equitable levy.* To constitute a lien, the bill must be 
 filed against the grantee and not against the debtor alone.' 
 The filing of the bill must also be followed up by service 
 
 iCodwise v. Gelston, lo Johns. Clarke Ch. 297; Jeffries v. Cochrane, 
 
 507; Zell Guano Co. v. Heatherly, 47 Barb. 557; Cummings v. McCul- 
 
 38 W. Va. 409, 18 S. E. 611. lough, 5 Ala. 324; Moffat v. Ingham, 
 
 SRhodes V. Amsinck, 38 Md. 345. 7 Dana, 495; Barrett v. Read, 
 
 3Day v. Washburn, 24 How. 352 
 Robinson Z). Stewart, 10 N. Y. 189 
 Barton v. Bryant, 2 Ind. 189 
 McNaughton v. Lamb, 2 Ind. 642 
 
 Wright, 700; Peacock v. Tompkins, 
 Meigs, 317; Graceyt/. Davis, 3 Strobh. 
 Eq. 55; Stanton, z/. Keyes, 14 Ohio 
 St. 443; Maiders v. Culver, 1 Duvall, 
 
 vide Wallace v. Treakle, 27 Gratt. 164; Crawford v. Kirksey, 55 Ala. 
 
 479- 282; Young v. Gillespie, 12 Heisk. 
 
 ^Chittenden v. Brewster, 2 Wall. 239; Cole v. Marple, 98 111. 58; 
 
 191; Hartshorne v. Barnes, 31 Me. Brooks v. Gibson, 7 Lea, 271; Clark 
 
 93; Newell V. Morgan, 2 Harring. v. Brockway, i Abb. Ap. 352; vide 
 
 225; 2 Del. Ch. 20; Newdigate v. Lee, Peacock v. Tompkins, Meigs, 317; 
 
 9 Dana, 17; Bank v. Burke, 4 Blackf. Chase v. Searles, 45 N. H. 511. 
 141; Ballentine v. Beall, 4 111. 203; Spields v. Sands, 8 Bosw. 685 
 
 Spader v. Davis, 5 Johns. Ch. 280; Conger v. Sands, 19 How. Pr. 8; 
 
 Albany Bank v. Schermerhorn, i Miller v. Sherry, 2 Wall. 237. 
 
REMEDIES. 5d5 
 
 of process.^ If the creditors file separate bills, they are 
 entitled to priority of payment in the order in which they 
 commence their suits.'' When the property can not be 
 taken on execution, it is not the return of an execution 
 unsatisfied, but the filing of a bill that gives 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.* The filing of a bill will 
 also give a prior lien upon the personal estate of the d(ibtor 
 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.* 
 
 § 581. 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.^ 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 dili- 
 gence.® If the senior judgment creditor issues an execution 
 after the service of process under the bill, a purchaser at 
 
 IBoynton v. Rawson, i Clarke, ^Scouton v. Bender, 3 How. Pr. 
 
 584; Herrington v. Herrington, 27 185; Weed v. Pierce, 9 Cow. 722; 
 
 Mo. 560; Holbrook v. Ford, 153 111. Albany Bank v. Schermerliorn, 
 
 633, 46 Am. St. Rep. 917, 39 N. E. Clarke Ch. 297; Warden v. Brown- 
 
 1091; Hallorn v. Trum, 125 111. 247, ing, 19 N. Y. Supr. 497. 
 17 N. E. 823; King V. Goodwin, 130 6i^ane v. Lutz, i Keyes, 203, s. c. 
 
 111. 102, 22 N. E. 533; Russell v. 3 Abb. Ap. 19; Scouton v. Bender, 3 
 
 Bank, 139 111. 538, 29 N. B. 37. How. Pr. 185; Haleys v. Willianfs, i 
 
 2Hone V. Henriquez, 13 Wend. Leigh, 140. 
 240; s. c. 2 Edw. 120; MofEat v. BLyon v. Robbins, 46 111. 276; 
 
 Ingham, 7 Dana, 495; Fields v. Rappeleye v. International Bank, 93 
 
 Sands, 8 Bosw. 685; Boynton v. 111. 396; Wood v. Wright, 4 Fed. 
 
 Rawson, i Clarke, 584. ' Rep. 511; Burt v. Keyes, i Flippin, 
 
 SWeed V. Pierce, 9 Cow. 722; 61; Miller v. Sherry, 2 Wall. 237. 
 
 Edmeston v. Lyde, i Paige, 637, 19 Contra, Scouton v. Bender, 3 How. 
 
 Am. Dec. 454; Beck v. Burdett, i Pr. i 85; Hubbs b. Bancroft, 4 Ind. 
 
 Paige, 305, 19 Am. Dec. 436; Grover 388. 
 V. Wakeman, 4 Paige, 23 s. c. 11 
 Wend. 187, 25 Am. Dec. 624. 
 
566 EEMEDIBS. 
 
 a sale under the execution will take the property subject to 
 the equitable lien created by the filing of the bill, for he 
 stands in no better attitude than any other purchaser 
 pendente lite} 
 
 § 682. Rule as to Personalty. — This principle appears to 
 be as applicable to personal property as to real estate, but 
 the authorities are the other way.^ If the grantee while 
 the bill is pending reconveys the land to the debtor, who 
 immediately mortgages it to another creditor, the creditor 
 'who files the bill is entitled to priority over the mortga- 
 gee.^ Creditors who obtain judgments while the bill is 
 pending are entitled to be paid according to the lien of 
 their respective judgments.* 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.^ 
 
 § 683. Costs. — Costs are peculiarly within the discretion 
 of the court. They are usually allowed to the successful 
 party.* In cases of constructive fraud they may be paid 
 out of the fund.^ When the transaction is such as would 
 naturally induce a creditor to call for an explanation, the 
 bill may be dismissed without costs if he is unsuccessful.^ 
 
 iScott V. Coleman, 5 Mon. 73; «Webb v. Daggett, 2 Barb. 9; 
 
 Dargan v. Waring, 11 Ala. 988; How v. Camp, Walk. Ch. 427. 
 
 Crawford z/. Kirksey, 55 Ala. 282. ^Grover z/. Wakeman, 11 Wend. 
 
 Contra, Watson v. NewYork Cen- 187, s. c. 4 Paige, 23, 25 Am. Dec. 
 
 tral R. R. Co., 6 Abb. Pr. (N. S.) 91. 624; Saunders v. Turbeville, 2 
 
 ^Davenport z/. Kelly, 42 N. Y. Humph. 272; Fiedler v. Day, 2 
 
 i93;Storm z/. Waddell, 2 Sandf. Ch. Sandf. 594; Erickson z/. Quinn, 47 
 
 494; I^ansing v. Eaton, 7 Paige, 364. N. Y. 410, s. c. 3 Lans. 299. 
 
 SScott z/. McMillen, i Litt. 302. Swhite v. Sansom, 3 Atk. 410; 
 
 iHaleys v. Williams, i Leigh, Houghton v. Tate, 3 Y. & J. 486; 
 
 I40- Holmes v. Penny, 3 K. & J. 90; 
 
 SScott V. Coleman, 5 Mon. 73; Townsend v. Westacott, 4 Beav. 58, 
 
 Miller z/. Sherry, 2 Wall, 237; Dar- s. c. 9 ^,. J. Ch. 241, 2 Beav. 340; 
 
 gan V. Waring, 11 Ala. 988. Contra, Hale v. Saloon Omnibus Co., 4 
 
 Chautauqua County Bank v. Risley, Drew, 492, s. c. 28 L. J. Ch. 777; 
 
 19 N. Y. 369, 75 Am. Dec. 347. Magawley's Trust, 5 De G. & S. i; 
 
EVIDENOEi 567 
 
 If the case is one of peculiar hardship to the creditor,^ 
 or if the conduct of the defendant does not meet with the 
 approbation of the court,^ each party may be directed to 
 pay his own costs. A purchaser who has failed mainly 
 through a defect in his answer may be ordered to pay his 
 own costs alone.* The costs of a person who is a necessary 
 party may be allowed out of the fund when he has been 
 guilty of no fraud.* 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.^ Except in case of a gross abuse of the 
 trust an assignee claiming under a voluntary assignment is 
 not usually charged with costs.^ In the case of a creditor's 
 bill, the counsel fees for the complainant's solicitor may be 
 allowed out of the fund.^ 
 
 CHAPTER XXIII. 
 EVIDENCE. 
 
 § 584. Proof of Indebtedness. — Before any person can assail 
 a transfer as fraudulent, he must show either that he is a 
 creditor of the grantor or represents creditors.^ For the 
 purpose of establishing such indebtedness, the admissions 
 
 McArthur v. Hoysradt, il Paige, Townsend v. Westacott, 4 Beav. 58, 
 
 495; Jacks V. Tunno, 3 Dessau, s. c. 9 L. J. Cli. 241, 2 Beav. 340. 
 
 i; Cunningham v. Freeborn, 11 SErickson j/. Quinn, 47 N. Y. 410, 
 
 Wend. 241, s. c. i Edw. 256, 3 Paige, s. c. 3 Lans. 299. 
 
 537; Stern v. Fisher, 32 Barb. 198; awebb v. Daggett, 2 Barb. 9. 
 
 Cox V. Piatt, 32 Barb. 126, s. c. 19 ^Strike v. M'Donald, 2 H. & G. 
 
 How. Pr. 121; Niolon v. Douglass, 2 191, s. c. i Bland, 57; Goldsmith v. 
 
 Hill Ch. 443; Pomeroy v. Manin, 2 Russell, 5 De G. & M. 547. 
 
 Paine, 476; Webb v. Daggett, 2 SGarnons v. Knight, 5 B. & C. 
 
 Barb. 9; Wakefield z;. Gibbon, I Giff. 671; Candler z/. Fisher, 11 Md. 332; 
 
 401; Kent V. Riley, Iv. R. 14 Eq. 191. Mahany v. Lazier, 16 Md. 69; Conil- 
 
 iHickman v. Quinn, 6 Yerg. 96. lard v. Duncan, 88 Mass, 440; Staur 
 
 2Clark V. Bailey, 2 Strobh. Eq. broz-. Hopkins, 28 Barb. 265; Ingram 
 
 143; Miller v. Halsey, 4 Abb. Pr. v. Phillips, 3 Strobh. Ch. 565; Cook 
 
 <N. S.) 28. V. Hopper, 23 Mich. 511; Mean v. 
 
 SByers v. Fowler, 12 Ark. 218. Hicks, 65 Ala. 241; Sawyer v. Har- 
 
 INorcut V. Dodd, i Cr. &Ph. 100; rison, 43 Minn. 297, 45 N. W. 434. 
 
568 
 
 EVIDENCE. 
 
 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.^ His 
 declarations,^ notes,^ and accounts,* 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.^ 
 
 § 585. Judgments. — The record of a judgment rendered 
 against the debtor is competent evidence against the grantee 
 to establish the existence of the debt. It is not compe- 
 tent evidence against third parties of the facts upon which 
 the judgment is founded, but is evidence of the existence 
 of the judgment itself, and is also prima facie evidence of 
 the existence of the indebtedness.® There is a distinction 
 between a mere admission of the debtor and a judgment, 
 for the record of a judgment rendered after the transfer is 
 suflSicient evidence of the debt.^ A judgment rendered 
 against a debtor's administrator, whether domestic* or 
 
 iRichards v. Swan, 7 Gill. 366; 
 s. c. 2 Md. Ch. iii; Gamble v. John- 
 son, 9 Mo. 605; High V. Nelms, 14 
 Ala. 350, 48 Am. Dec. 103; Satter- 
 white V. Hicks, Busbee, 105, 57 Am. 
 Dec. 577; Hale v. Smith, 6 Me. 416; 
 Dubose V. Young, 14 Ala. 139; 
 Goodgame v. Cole, 12 Ala. 77. 
 
 2Ragan v. Kennedy, i Tenn. 91; 
 Satterwhite v. Hicks, Busbee, 105; 
 Dwight V. Brown, 9 Conn. 83. 
 
 3High V. Nelms, 14 Ala. 350, 48 
 Am. Dec. 103; Foster v. Wallace, 2 
 Mo. 231; Feagan v. Cureton.ig Geo. 
 404. 
 
 ^Richards v. Swan, 7 Gill. 366; 
 s. c. 2Md. Ch. m. 
 
 BRedfield v. Buck. 35 Conn. 328; 
 Hitt V. Ormsbee, 12 111. i65; Town- 
 send V. Westacott, 2 Beav. 340; s. c. 
 9 Iv. J. Ch. 241; 4 Beav. 58. 
 
 BRailroad Co. v. Kyle, 5 Bosw. 
 587; Law V. Payson, 32 Me. 521; 
 Garrigues v. Harris, 17 Penn. 344; 
 
 Garland v. Rives, 4 Rand. 282, 15 
 Am. Dec. 756; Feagan v. Cureton, 
 19 Geo. 404; Vogt f , Ticknor, 48 N. 
 H. 242; Easley v. Dye, 14 Ala. 158; 
 Clayton V. Brown, 30 Geo. 490; Snod- 
 grass V. Bank, 25 Ala. i6r; Reed v. 
 Davis, 22 Mass. 388; Prescott v. 
 Hayes, 43 N. H. 593; Tappan v. 
 Nutting, Brayt. 137; Hinde v. Ivong- 
 worth, II Wheat. 199; Goodnow v. 
 Smith, 97 Mass. 69; Clark v. Antho- 
 ny, 31 Ark. 546. 
 
 TYoung V. Pate, 4 Yerg. 164; 
 Vogt V. Ticknor, 48 N. H. 242; 
 Railroad Co. v. Kyle, 5 Bosw. 587; 
 Jenness v. Berry, 17 N. H. 549; 
 Garland v. Rives, 4 Rand. 282, 15 
 Am. Dec. 756. 
 
 SMcDowell V. Goldsmith, 24 Md. 
 214, s. c. 6 Md. 319, s. c. 2 Md. Ch. 
 370, 61 Am. Dec. 305; Baker v. 
 Welch, 4 Mo. 484; Osgood v. Man- 
 hattan Co., 3 Cow. 612; Hills V. 
 Sherwood, 48 Cal. 386. Contra, 
 
EVIDENCE. 
 
 569 
 
 foreign,^ is not competent evidence against the grantee. 
 
 § 686. Judgment by Confession.— If a judgment is by con- 
 fession the creditor must prove it to be for a just debt.^ 
 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 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.^ 
 
 § 587. 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 
 
 M'Laughlin v. Bank of Potomac, 7 
 How. 22o; Chamberlayne v. Tem- 
 ple, 2 Rand. 384, 14 Am. Dec. 786. 
 
 IKing V. Clarke, 2 Hill Ch. 611. 
 
 2Sanders v. , Holt, 327, s. 
 
 c. Skinner, 586; Botts v. Cozine, 
 Hoff. Ch. 79^ Brandt v. Stevenson, 
 3 Phila. 205; vide Woodworth v. 
 Woodworth, 21 Barb. 343. 
 
 SDonley v. McKiernan, 62 Ala. 
 34; Snodgrass ».. Bank, 25 Ala. 161. 
 
 *But a domestic judgment cannot 
 be collaterally impeached on the 
 ground of no jurisdiction over the 
 parties where the record does not 
 disclose the lack of it. Wilkerson 
 V. Schoonmaker, 77 Tex, 615, 14 S. 
 W. 223, 19 Am. St. Rep.- 803; Wil- 
 liams V. Haynes, 77 Tex. 283, 13 S. 
 W. 1029, 19 Am. St. Rep. 752; 
 Bender v. Damon, 72 Tex. 92, 9, S. 
 W. 747; Fitch V. Boyer, 51 Tex. 344; 
 Tennell v. Breedlove, 54 Tex. 540; 
 Lyons V. Roach, 84 Cal. 28, 23 Pac. 
 1026; Crim V. Kessing, 89 Cal. 478, 
 23 Am. St. Rep. 491, 26 Pac. 1074; 
 Toliver v. Morgan, 75 Iowa 619, 34 
 
 N. W. 858; Thain v. Rudisill, 126- 
 Ind. 272, 26 N. E. 46; Adams v. 
 Franklin, 82 Ga. 168, 8 S. E. 44; 
 Schmidt v. Niemeyer, 100 Mo. 207, 
 13 S. W. 405; Porrman v. Frede, 72. 
 Wis. 226, 39 N. W. 385. 
 
 "A domestic judgment of a 
 court of general jurisdiction 
 upon a subject matter within the 
 ordinary scope of its power is en- 
 titled to such absolute verity that 
 in a collateral action, even where 
 the record is silent as to notice, the 
 presumption, when not contradicted 
 by the record itself, that the court 
 had jurisdiction of the person also, 
 is so conclusive that evidence 
 aliunde will' not be admitted to 
 contradict it." Wilkerson z;. Schoon- 
 maker, supra. 
 
 While in the case of a judgment 
 of a justice of the peace, it is not 
 necessary that all the jurisdictional ' 
 facts shall appear affirmatively on 
 the record in order to raise the pre- 
 sumption of jurisdictipn, yet the 
 court of a justice of the peace is- 
 
S70 
 
 EVIDENCE. 
 
 collusion,^ or that it was entered illegally,^ 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.* It can not be impeached collaterally 
 for mere irregularities,* or upon the ground that the action 
 •should have been brought by another party.^ 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.^ He may show 
 that it was without consideration,^ or that the debt" for 
 
 not such a court of general juris- 
 •diction as to cause his record to 
 import absolute verity. Wilkerson 
 V. Schoonmaker, supra; Heck v. 
 Martin, 75 Tex. 469, 16 Am. St. Rep. 
 915, 13 S. W. 51. 
 
 IJenness v. Berry, 17 N. H. 549; 
 Prescott V. Hayes, 43 N. H. 593; 
 JVIiller V. Miller, 23 Me. 22; Law v. 
 Payson, 32 Me. 521; Garland v. 
 Rives, 4 Rand. 282, 15 Am. Dec. 756; 
 Church V. Chapin, 35 Vt. 223; Reed 
 ». Davis, 22 Mass. 388; Caswell v. 
 Caswell, 28 Me. 232; Esty v. Long, 
 41 N. H. 103; Ingalsz/. Brooks, 29 Vt. 
 398; Posten V. Posten, 4 Whart. 27. 
 But where the court's jurisdiction 
 is established, either by presump- 
 tion or by proof, a domestic judg- 
 ment cannot be attacked for fraud. 
 Lindsay v. Delano, 78 Iowa 350, 43 
 N. W. 218; Sohee v. La Grange, 78 
 Iowa loi, 42 N. W. 616; McDonald 
 ■v. Frost, 99 Mo. 44, 12 S. W. 363; 
 Boyer v. Berryman, 123 Ind. 451, 24 
 N. E. 249; HefEron v. Cunningham, 
 76 Tex. 313, 13 S. W. 259; Spotts V. 
 Commonwealth, 85 Va. 531, 8 S. E. 
 375; Lawsoli V. Moorman, 85 Va. 
 S80, 9 S. E. 150. 
 
 ^Caswell V. Caswell, 28 Me. 232; 
 Carter v. Bennett, 4 Fla. 283. 
 
 ssidensparke'r v. Sidensparker, 
 52 Me. 481; Ferguson v. Kumler, 11 
 Minn. 104; Candee v. Lord, 2 N. Y. 
 269; Starr v. Starr, i 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. 920. 
 
 ^Carter v. Baker, 10 Heisk. 640. 
 
 5Clark V. Anthony, 31 Ark. 546. 
 
 BMiller v. Miller, 23 Me. 22; Mil- 
 ler V. Johnson, 27 Md. 6; Mattingly 
 V. Nye, 8 Wall. 370; Boutwell v. 
 McClure, 30 Vt. 674. 
 
 7Jenness 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; 
 Garland v. Rives, 4 Rand. 282, 15 
 Am. Dec. 756; 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. 
 
 SMattingly v. Nye, ,8 Wall. 370; 
 Reed v. Davis, 22 Mass. 388; Ingalls 
 V. Brooks, 29 Vt. 398. 
 
EVIDENCE. 571 
 
 ^phicli it was rendered or the judgment itself^ has been 
 paid, or that there were mutual claims which could have 
 been made the subject of a set-off and by this means could 
 have been mutually cancelled,^ or that the debt was really 
 contracted by the debtor as agent for another,^ or that the 
 judgment is being used for the benefit of the debtor,* or that 
 the judgment is for a debt created after the transfer.^ 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,^ especially if 
 the action was for slander, trespass, malicious proscution, 
 •or a similar tort/ 
 
 §588. How far Grantee may set up Defenses. — 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,^ 
 or that the debt was barred by the statute of limitations 
 before the commencement of the suit in which the judg- 
 ment was rendered,* or that the debt arose out of a con- 
 tract which was void as against public policy,^" or that the 
 contract was void on account of usury .^^ On the other hand 
 
 iBoutwell V. McClure, 30 Vt. 674. ker v. Sidensparker, 52 Me. 481. 
 
 ZWarner v. Percy, 22 Vt. 155; ^sidensparker v. Sidensparker, 
 
 Hall V. Hamlin, 2 Watts, 354. 52 Me. 481. 
 
 STeed v. Valentine, 65 N. Y. 8:Edmunds v. Mister, 58 Miss. 
 
 471- 765- 
 
 4Feagan v. Cureton, 19 Geo. 404; sWarner v. Dove, 33 Md. 579; 
 
 Boutwell V. McClure, 30 Vt. 674; McDowell v. Goldsmith, 24 Md. 
 
 Bsty V. Long, 41 N. H. 103. 214, s. c. 2 Md. Ch. 370, s. c. 6 Md. 
 
 ^Millei: v. Miller, 23 Me. 22; Mil- 319, 61 Am. Dec. 305. Contra, Clark 
 
 lerz/. Johnson, 27 Md. 6; Mattingly z/. Anthony, 31 Ark. 546. See sec- 
 
 v. Nye, 8 Wall. 370. tion 203, ante. 
 
 ejenness v. Berry, 17 N. H. 549; lOBruggerman v. Hoerr, 7 Minn. 
 
 Garland v. Rives, 4 Rand. 282, 15 337, 82 Am. Dec. 97. 
 
 Am. Dec. 756; Church v. Chapin, 35 UTaylor v. Eubanks, 3 A. K. 
 
 Vt. 223; Candee v. Lord, 2 N. Y. Marsh. 239. Contra, Hislop v. 
 
 269, 51 Am. Dec. 294; Ferguson v. Hoover, 68 N. C. 141. See section 
 
 Kumler, 11 Minn. 104; Sidenspar- 203, ante. 
 
572 EVIDENCE. 
 
 it has been held that he could not show that the note on 
 which the judgment was rendered was made on Sunday,^ 
 
 § 589. 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.^ To es- 
 tablish the controverted facts, proof is the end and evidence 
 is the means. Proof establishes the truth. Evidence only 
 tends towards it. Any pertinent and legitimate facts con- 
 ducing to the proof of a litigated fact are evidence of it, 
 either weaker or stronger, according to their entire char- 
 acter and complexion.'' Evidence which tends to prove an 
 issue contributes to its establishment and assists in giving 
 a leaning to the mind in its consideration or determination. 
 That which is directed to an end, however, may not neces- 
 sarily attain it. It may be received 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 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 contro- 
 verted fact, tend to justify the inference of its existence.* 
 
 § 590. Admissibility. — In questions of fraud a wide 
 range of evidence is allowed.* Fraud assumes many 
 shapes, disguises and subterfuges, and is generally so 
 secretly hatched that it can only be detected by a consider- 
 ation 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 
 
 IJenness v. Berry, 17 N. H. 549. CCovaMhovan v. Hart, 21 Penn. 
 
 SParkliurst v. McGraw, 24 Miss. 495, 60 Am. Dec. 57; Garrigues v. 
 
 134- Harris, 17 Penn. 344; Ferris v. 
 
 SMiles V. Bdelen, i Duvall, 270. Irons, 83 Penn, 179. 
 
 ^Davenport v. Cummings, 15 
 Iowa, 2ig. 
 
EVIDENCE. 573 
 
 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. Bach de- 
 tached piece of evidence is not therefore to be rejected as 
 it is offered, because it is apparently trivial.-' Any fact 
 however slight, if at all relevant to the issue, is admis- 
 sible.^ It is not easy to draw the precise line separating 
 those circumstances which are fairly admissible from those 
 which ought to be excluded. 
 
 § 691. The Test of Relevancy.— The true test is whether 
 the evidence can throw light upon the transaction or is al- 
 together irrelevant.'^ The relevancy of a given fact, how- 
 ever, does not depend upon its force but upon its bearing. 
 If it bears either directly or indirectly with any weight 
 whatever on the main controversy, or any material 
 part of it, it is admissible.* Evidence which has no con- 
 nection with the matters in issue, but merely tends to 
 create a personal prejudice against one of the parties, should 
 be excluded.^ So also if the whole evidence taken to- 
 gether would merely raise a suspicion, it may be rejected.® 
 
 § 598. 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 
 fraiid 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 en- 
 forced by the cestui que trust or his representatives. It is 
 & question of fraud by reason of a secret trust with fraudu- 
 lent intent affecting the validity of the transfer. Hence 
 the doctrines of the law as to the proof of a trust, whether 
 
 IBlue V. Penniston, 27 Mo. 272. Rep. 533; Blue v. Penniston, 27 Mo. 
 
 ^Waters v. Dashiell, i- Md. 455; 272; Wright v. Linn, 16 Tex. 34; 
 
 Curtis V. Moore, 20 Md. 93; Balto. Cooke v. Cooke, 43 Md. 522. 
 & Ohio R. R. Co. V. Hoge, 34 Penn. *King v. Poole, 61 Geo. 373. 
 
 214. BCarr v. Gale, Davies, 328; Daven- 
 
 SZerbe v. Miller, 16 Penn. 488; port v. Wright, 51 Penu. 292. 
 Heath v. Page, 63 Penn. 280, 3 Am. BBoylston v. Carver, 11 Mass. 515. 
 
574 
 
 EVIDENCE. 
 
 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.^ 
 
 § 593. 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 
 language which is used on any occasion forms a part of 
 the res gestas. The declarations and acts of the debtor 
 made before the transfer and contemporaneously with it are 
 admissible.^ They are admissible in evidence in favor of 
 the grantee,^ as well as of creditors. The acts* and decla- 
 rations of the grantee^ which accompany the transfer stand 
 on the same footing as those of the debtor. So far as- 
 the acts and declarations of the parties form a part of and 
 
 iMcIyane v. Johnson, 43 Vt. 48; 
 Starr v. Starr, i 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. 
 
 SMcDowell V. Goldsmith, 6 Md. 
 319, s. c. 2 Md. Ch. 370, s. c. 24 Md. 
 214, 61 Am. Dec. 305; Waters v. 
 Riggin, 19 Mdt 536; Badger v. Story, 
 16 N. H. 168; Angier v. Ash, 26 N. 
 H. 99; Goodgame v. Cole, 12 Ala. 
 77; Elliott V. Stoddard, 98 Mass. 
 14s; 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 z;. Langford, 6 Fla. .13; Pot- 
 ter V. McDowell, 31 Mo. 62; Marsh 
 V. Davis, 24 Vt. 363; Hoose v. Rob- 
 bins, 18 La. An. 648; Heath v. Page, 
 63 Penn. 280; Weil v. Silverstone, 6 
 Bush, 698; Peck v. Crouse, 46 Barb. 
 151; McLane z/. Johnson, 43 Vt. 48; 
 Pomeroyz/. 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, m; Pearson f, 
 Forsyth, 61 Geo. 537; vide Alexan- 
 der V. Gould, I Mass. 165; Reichart 
 V. Castator, 5 Binn. 109, 6 Am. Dec> 
 402; Claflin V. Ballance, Ga., 18 S. E. 
 309; Swan V. Morgan, 88 Hun 378,. 
 34 N. Y. Supp. 829; Gumbert v. 
 Treusch, Mich. 61 N. W. 872; 
 Ogden State Bank v. Barker, Utah^ 
 40 Pac. 765. 
 
 SElliott V. Stoddard, 98 Mass. 145;. 
 Sackett v. Spencer, 65 Penn. 89;. 
 Sweetzer v. Mead, 5 Mich. 107; vide 
 Gruber v. Boyles, i Brev. 266; U. 
 S. V. Mertz, 2 Watts, 406; College v. 
 Powell, 12 Gratt. 372. 
 
 *Cuyler v. McCartney, 40 N. Y. 
 221; s. c. 33 Barb. 165. 
 
 BBoyden v. Moore, 28 Mass. 362; 
 Ward V. WofiEord, Tex. Civ. App., 2& 
 S. W. 321; Hayne v. Herrman, 97 
 Cal. 259, 32 Pac. 171. 
 
EVIDENCE. 575' 
 
 assist in giving character to the transaction, they constitute 
 a part of the res gestae and are competent evidence.^ When 
 admitted they do not conclusively establish the fraud, tut 
 are to be considered in connection with other evidence, 
 and to be governed as to their effect by the usual rules of 
 the law.^ The declarations of an agent when they consti- 
 tute a part of the res gestae are also competent evidence.^' 
 
 § 594. 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 propositions 
 may be of different kinds and drawn frbm different sources.. 
 It may apply separately to the two branches of the case. 
 Evidence in regard to the conduct and declarations of the 
 debtor prior to the transfer is admissible to prove the 
 fraud on his part, and if this is proved, the knowledge of 
 it on the part of the grantee may be proved by any circum- 
 stances tending to show a participation in the designs of 
 the debtor. These acts and declarations may be proved 
 without proving knowledge on the part of the grantee of 
 the particular acts and declarations from which the fraudu- 
 lent intent is to be inferred.* The competency of such evi- 
 
 IClaytor v. Antliony, 6 Rand. 34 Pac. 851; Harrison v. Horsley, 
 
 285; Penn. z/. Scholey, 3 Esp. 243; Tex. Civ. App., 26 S. W. 765; Bridge 
 
 Ferbrache v. Martin, Idaho, 32 v. Eggleston, 14 Mass. 245; Clarke 
 
 Pac. 252. ■ V. Waite, 12 Mass. 439; Foster v. 
 
 SMcDowell z/. Goldsmith, 6 Md. Hall, 29 Mass. 89; Blake v. White, 
 
 319; s. c. 2 Md. Ch. 370; s. c. 24Md. 13 N. H. 267; Heath v. Page, 63 
 
 214, 61 Am. Dec. 305. Penn. 280; Howe z). Reed, 12 Me. 
 
 SHenschen v. Leichtemeyer, 49 • 515; Landecker v. Houghtaling, 7 
 
 Mo. 51; Kelly v. Campbell, 38 N. Cal. 391; Mansir w. Crosby, 72 Mass. 
 
 Y. (Keyes) 29. 3341 Gillett v. Phelps, 12 Wis. 392; 
 
 4Threlkel v. Scott, 99 Cal. , Davis v. Stern, 15 La. An. 177; 
 
576 
 
 EVIDENCE. 
 
 ■dence does not depend upon the time wlien 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 con- 
 junction with it one continuous transaction, the evidence 
 is admissible without regard to the time when the act was 
 done or the declaration was made.^ But if the act or 
 declaration was so long prior to the transaction in contro- 
 versy that it does not tend to throw any light on it, the 
 evidence is not admissible.^ 
 
 Grooves v. Steele, 2 La. An. 480; 
 Gray v. St. John, 25 111. 222; Win- 
 chester V. Charter, 97 Mass. 140; s. 
 c. 102 Mass. 272; s. c. 94 Mass. 606; 
 Sarle v. Arnold, 7 R. I. 582; Cook 
 V. Moore, 65 Mass. 213; Kimmel v. 
 M'Right, 2 Penn. 38; Farmers' 
 Bank v. Douglas, 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, g.s Mass. 172; McEl- 
 fatrick v. Hicks, 21 Penn. 402; 
 Booth V. Bunce, 33 N. Y. 139; s. c. 
 24 N. Y. 592; s. c. 35 Barb. 496; 
 Trezevant v. Courtenay, 23 La. An. 
 628; Chase v. Chase, 105 Mass. 385; 
 Hopkins v. Langton, 30 Wis. 379; 
 Cooke V. Cooke, 43 Md. 522; Fuller- 
 ton V. Viall, 42 How. Pr. 294; Bishofi 
 V. Hartley, 9 W. Va. 100; Tyler v. 
 Angevine, 15 Blatch. 536; Stewart v. 
 Fenner, 81 Penn. 177; Stowell v. 
 Hazelett, 66 N. Y. 635; Kurtz v. 
 Miller, 26 Kans. 314. Contra, 
 Beach v. Catlin, 4 Day, 284; Reed v. 
 Smith, 14 Ala. 380; Oden v. Rippet- 
 toe, 4Ala. 68; Partelo z/. Harris, 26 
 Conn. 480; Pettibone z;. Phelps, 13 
 Conn. 445; Jones v. Norris, 2 Ala. 
 526; Adams v. Foley, 4 Iowa, 44; 
 Prior ». White, 12 111. 261; Curtis v. 
 Moore, 20 Md. 93; Durkee v. Cham- 
 bers, 57 Mo. 575. 
 
 iCooke «. Cooke, 43 Md. 522. 
 
 In Smith v. National Benefit So- 
 ciety, 123 N. Y. 85, 9 L. R. A. 616, 
 25 N. E. 197, Finch, J., said: 
 
 "These acts and declarations all 
 occurred before the plaintifE took 
 his policy as collateral, and when 
 th^y affected no one but Tyler him- 
 self. They tended to show the 
 origin and progress of the fraudu- 
 lent intent, the manner of its growth 
 and the motive frota which it 
 sprung. They indicate a sane and 
 deliberate purpose moving steadily 
 to its result, and constitute a part 
 of the history of the fraud. They 
 were contemporaneous with the 
 fraud in its formative stages; they 
 accompanied Tyler's efforts to raise 
 money, which failed, and to procure 
 an insurance upon his life which he 
 knew he could not continuously 
 maintain. They show the motive of 
 the fraud and mark its progress, 
 and harmonize so completely with 
 all that afterwards occurred as to 
 constitute with that elements of a 
 single transaction, the fraudulent 
 conduct which raised the issue pre- 
 sented by the defence. And so I 
 think the proof came fairly within 
 the rule relating to the res gestes 
 and did not transcend its limits." 
 
 2Weaver v. Ashcroft, 50 Tex. 
 427. 
 
EVIDENCE. 577 
 
 § 595. 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 in- 
 tent of the debtor,^ although the grantee had no knowledge 
 of such transfers, for proof of one fraudulent transfer 
 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 destroy altogether the force of the evidence 
 resulting from their general character.^ The rule that 
 distinct frauds may be shown is limited, however, to such 
 frauds as are contemporaneous, or at most nearly so, and 
 does not embrace dealings which are so remote in point of 
 time as to throw no light upon the matter in issue between 
 the parties.* The admissibility of such evidence is to be 
 determined according to the degree of its relation to the 
 transfer in controversy. It need not take place immediately 
 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. 
 
 llvivermore z/. Northrop, 44 N. Y. Thomas v. Beck, 39 Conn. 241; 
 
 107; Crow V. Ruby, 5 Mo. 484; Cum- Stockwell v. Silloway, 113 Mass. 
 
 mings V. McCullough, 5 Ala. 324; 384; Cooke v. Cooke, 43 Md. 522; 
 
 Cram v. Mitchell, i Sandf. Ch. 251, Summers v. Howland, 2 Baxter, 407; 
 
 Guerin v. Hunt, 6 Minn. 375, s. c. 8 Prewittt-. Wilson, 103 U. S. 22, s. c. 
 
 Minn. 477; Lehmer v. Herr, i 3 Woods, 631; vide Brett v. Oatlin, 
 
 Duvall, 360; Blake v. White, 13 N. 57 Barb. 404; Mower v. Hanford, 6 
 
 H. 267; Hills V. Hoitt, 18 N. H. 603; Minn. 535; Christopher v. Coving- 
 
 Whittier v. Varney, 10 N. H. 291; ton, 2 B. Mon. 357. 
 Van Kirk v. Wilds, 11 Barb. 520; SPierce v. Hoffman, 24 Vt. 525. 
 
 Angrave v. Stone, 45 Barb. 35; Ben- 3Cohn v. Mulford, 15 Cal. 50; 
 
 ning V. Nelson, 23 Ala. 801; Fisher Staples v. Smith, 48 Me. 470; Hunt- 
 
 V. True, 38 Me. 534; Howe v. Reed, zinger v. Harper, 44 Penn. 204; Mc- 
 
 12 Me. 515; Ford v. Williams, 3 B. Aulay v. Earnhart, i Jones (N. C.) 
 
 Mon. 550; Zerbe v. Miller, 16 Penn. 502; Imray v. Magnay, 11 M. & W. 
 
 488; Deakers v. Temple, 41 Penn. 267; Flagg v. Willington, 6 Me. 
 
 234; Sarle v. Arnold, 7 R. I. 582; 386; Boyd v. Brown, 36 Mass. 453; 
 
 Warren v. Williams, 52 Me. 343; Cook v. Swan, 5 Conn. 140; Blake 
 
 Taylor v. Robinson, 84 Mass. 562; v. Howard, 11 Me. 202. 
 Evans v. Matson, 56 Penn. 54; 
 
578 
 
 EVIDENCE. 
 
 § 696. Declarations Acted upon by Grantee. — Prior declara- 
 tions which are subsequently adopted and acted upon by 
 the grantee are competent evidence against him.^ 
 
 § 597. 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 
 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 gestce. 
 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,^ and 
 are thus competent evidence against the others.^ It con- 
 stitutes no objection to the admissibility of such declara- 
 tions that the plan was concocted before the party against 
 
 ICuyler v. McCartney, 40 N. Y. 
 221, s. c. 33 Barb. 165; Rea v. Mis- 
 souri, 17 Wall. 532. 
 
 Statements to a commercial 
 agency are admissible to prove 
 fraudulent intent. Shaver v. Aller- 
 ton, 151 U. S. 607-617; Englisli v. 
 Preedman, 70 Miss. 457, 12 So. 252; 
 Joseph V. Mady Clothing Co., 13 
 
 Mont. . 33 Pac. 1, Neusch v. 
 
 Ottenburg, 54 Ped. 867. Compare 
 Blum V. Jones, 86 Tex. 492, 25 S. W. 
 694. 
 
 SStovall V. Farmers' Bank, 16 
 Miss. 305, 47 Am. Dec. 85. 
 
 Sjenne v. Joslyn, 41 Vt. 478; Mc- 
 Dowell 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. Tur- 
 ner, 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 N. 
 
 J. 87; Caldwell v. Williams, i Ind. 
 405; Cuyler z>. McCartney, 40 N. Y. 
 221, s. c. 33 Barb. 165; Waterbury 
 V. Sturtevant, 18 Wend. 353; Reiten- 
 bach V. Reitenbach, i Rawle, 362; 
 Claytor v. Anthony, 6 Rand. 285; 
 Abney v. Kingslaud, 10 Ala. 355, 
 44 Am. Dec. 491; 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; Spies V. People, 122 111. i, 3 Am. 
 St. Rep. 320, 12 N. E. 865, 17 N. E. 
 898 (a criminal case containing a 
 thorough discussion of the doctrine 
 of conspiracy;) Bishop v. Redmond, 
 83 Ind. 157; Daniels v. McGinnis, 
 97 Ind. 549; Moore v. Shields, 121 
 Ind. 267, 23 N. E. 89; Benjamin v. 
 McElwaine- Richards Co., Ind., 37 
 N. E. 362; State, Redmon v. Durant, 
 53 Mo. App. 493. 
 
EVIDENCE. 5Y9 
 
 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 gestas, as much as if 
 he had been present and assented to each successive step 
 in carrying out and consummating the fraud.^ 
 
 § 598. Conspiracy Must Be Established.— Before such 
 declarations 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 suflBciently proved, 
 and whether these facts are prima facie suflBcient 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 never- 
 theless negative the combination.^ The combination can 
 not be established by the declarations themselves, for a 
 species of evidence which is in its nature inadmissible, un- 
 less 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 cannot even be 
 heard until a foundation is laid for their introduction, by 
 proper proof that the debtor and grantee were engaged in a 
 conspiracy to defraud creditors.^ 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.* A very slight degree of concert or collusion, 
 however, is sufficient.^ The retention of the possession of 
 personal property is sufficient^ if it is of such a character 
 
 iStewart v. Johnson, i8 N. J. 87. ^Cuyler v. McCartney, 40 N. Y, 
 
 SClaytor v. Anthony, 6 Rand. 285; 221; s. c. 33 Barb. 165. 
 
 Hathaway v. Brown, 18 Minn. 414; SHartman v. Diller, 62 Penn. 37; 
 
 Boyd V. Jones, 60 Mo. 454. Crawford v. Ritter, i Penn. Supr. 
 
 sCuyler v. McCartney, 40 N. Y. 29. 
 
 221; s. c. 33 Barb. 165; Claytpr v. eCaldwell w. Williams, i Ind. 405; 
 
 Anthony, 6 Rand. 285; Abney v. Borland v. Mayo, 8 Ala. 104; Water- 
 
 Kingsland, 10 Ala. 355, 44 Am. Dec. bury z/. Sturtevant, 18 Wend. 353. 
 
 491. 
 
680 EVIDENCE. 
 
 as to raise a presumption of a fraudulent intent.^ The 
 retention of the possession of real estate is not sufficient.^ 
 A statement of the debtor showing a fraudulent intent 
 made so near the grantee that he might, and most proba- 
 bly did, here it is sufl5cient.^ The relation of husband and 
 wife is not a suflScient foundation to make his acts or dec- 
 larations competent evidence against her.* When the 
 conspiracy is proved, a memorandum made by the debtor 
 even after the death of the grantee is admissible in evi- 
 dence.^ 
 
 § 599. Subsequent Declarations. — The existence of the 
 fraudulent intent must always be proved by evidence 
 which is competent against the grantee. The acts and de- 
 clarations of the debtor, however, made after transfer, 
 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, moreover should be 
 allowed to defeat his transfer by his own acts or words.^ 
 
 lAbney v. Kingsland, lo Ala, 23; Bogart «. Haight, 9 Paige, 297; 
 
 355, 44 Am. Dec. 491; Wright zy. Ball t/. Loomis, 29 N.Y. 412; Savery 
 
 Cornelius, 10 Mo. 174. v. Spaulding, 8 Iowa, 239, 74 Am. 
 
 STedrowe v. Esher, 56 Ind. 443. Dec. 30a; Norton v. Kearney, 10 
 
 SStovall V. Farmers' Bank, 16 Wis. 443; Myers z/. Kenzie, 26 111. 36; 
 
 Miss. 305, 47 Am. Dec. 85. Wynne v. Glildwell, 17 Ind. 446; 
 
 4Tripner v. Abrahams, 47 Penn. Bates v. Ableman, 13 Wis. 644; Burt 
 
 220. V. McKinstry, 4 Minn. 204, 77 Am. 
 
 BConfer v. McNeal, 74 Penn. 112. Dec. 507; Pickett v. Pickett, 3 Dev. 
 
 BMiner v. Phillips, 42 111. 128; 6; Edgell v. Bennett, 7 Vt. 534; 
 
 Babb z). Clemson, 12, S. &R. 328, 13 Gamble v. Johnson, 9 Mo. 605; 
 
 Am. Dec. 684; Clements v. Moore, 6 Humphries v. McCraw, 9 Ark. 91; 
 
 Wall. 299; Foster v. Wallace, 2 Mo. Scott v. Heilager, 14 Penn. 238; 
 
 231; Steward z/. Thomas, 35 Mo. Reed z/. Smith, 14 Ala. 380; Foote z;. 
 
 202; Hessing v. McCloskey, 37 111. Cobb, 18 Ala. 585; Strong v. Brewer, 
 
 341; Visher v. Webster, 13 Cal. 58; 17 Ala. 706; McElfatrick v. Hicks, 
 
 Lewis V. Wilcox, 6 Nev. 215; Peck 21 Penn. 402; Wolf ». Carolhers, 3 
 
 V. Grouse, 46 Barb. 151; Vance v. S. & R. 240; Gridley v. Bingham,^ 
 
 Smith, 2 Heisk. 343; Ogden v. 51 111. 153; Taylor v. Robinson, 84;' 
 
 Peters, 15 Barb. 560, s. c. 21 N. Y. Mass. 562; Derby v. Gallup.sMinn. 
 
EVIDENCE. 58X 
 
 If the declarations or acts are made or done with the 
 assent of the grantee,^ or if the debtor is produced as a 
 witness,^ then they may be used as evidence upon other 
 grounds and not, merely as inlrinsic?illy competent of them- 
 selves. If the debtor and grantee are both parties to the 
 suit, the subsequent declarations of the debtor are compe- 
 tent evidence against him.* 
 
 § 600. Declarations in Possession.— When the debtor re- 
 mains in possession of the property, his acts and declarations 
 are competent evidence against the grantee. The possession 
 is a part of the res gestm, and the n,g,ture .^.n^ 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 be- 
 cause any peculiar credit is due to the party in possession, 
 but because they qualify and characterize the very fact to 
 be investigated.* The principle applies to personal as well 
 
 119; Lormore v. Campbell, 60 Barb. 74; Loughbridge v. Bowland, 52 
 
 62; Pier V. Duff, 63 Penn. 59; Miss. 546; Garner v. Graves, 54lnd. 
 
 Sackett v. Spencer, 65 Penn. 89; 188; Taylor v. Webb, 54 Miss. 36; 
 
 Cohn V. Mulford, 15 Cal. 50; Zim- Bennett v. Stout, 98 111. 47; City 
 
 merman v. Lamb, 7 Minn. 421; Win- Nat'lBankz". Hamilton, 34 N.J. Eq. 
 
 Chester z/. Charter, 97 Mass. 140, s. c. 158; Williams v. Casebeer, 53 Mo. 
 
 102 Mass. 272, s. c. 94 Mass. 606; App. 644; Brock v. Brock, 90 Ala. 
 
 Aldrich v. Earle, 79 Mass. 578; 86, 9 L. R. A. 287, 8 So. 11. 
 Sutter V. lyackmann, 39 Mo. 91; But see Sloan z/. Cobiirn, 26 Neb. 
 
 Shaw V. Robertson, 12 Minn. 445; 607, 4 L. R. A. 470, 42 N. W. 725, 
 
 Kennedy v. Divine, 77 Ind. 490; where it is held that grantor's sub- 
 
 PuUiam v. Newberry, 41 Ala. 168; sequent declarations are evidence of 
 
 Weinrich v. Porter, 47 Mo. 293; his own fraudulent intent, but not 
 
 Ragan v. Kennedy, i Tenn. 91; of grantee's. 
 
 Clark V. Johnson, 5 Day, 373; Phil- IKendall v. Hughes, 7 B. Mon. 
 
 lips V. Eamer, i Esp. 355; Glenn v. 368; Rea v. Missouri, 17 Wall. 532. 
 Grover, 3 Md. 212, s. c. 3 Md. Ch. ^Borland v. Mayo, 8 Ala. 104; 
 
 29; Collumb V. Read, 24 N. Y. 505 Venablez'. Bank, 2 Pet. 107; Knight 
 
 Cuyler v. McCartney, 40 N. Y. 221, v. Forward, 63 Barb. 311. 
 s. c. 33 Barb. 165: Bennett v. Mc- SStowell v. Hazelett, 66 N. Y. 
 
 Guire, 5 Lans. 183, s. c. 58 Barb. 635; Hairgrove v. Millington, . 8 
 
 625. Orr V. Gilmore, 7 Lans. 345 Kans. 480; White v. Perry, 14 W. 
 
 Hathaway v. Brown, 18 Minn. 414; Va. 66. 
 
 Thornton v. Tandy, 39 Tex. 544; ^Mobile Savings Bank v. Mc- 
 
 Holbrook v. Holbrook, 113 Mass. Donnell, 89 Ala. 434, 9 L. R. A. 645, 
 
582 
 
 EVIDENCE. 
 
 as real property,' and extends to the declarations of any 
 person in possession.^ The possession, however, must be 
 actual, and not merely constructive and inconsistent with 
 the title of the grantee.^ The acts and declarations are ad- 
 missible in favor of the grantee as well as of creditors.* 
 But before they can be received, the possession must be 
 shown to the satisfaction of the court.^ They are not, 
 moreover, admissible to every conceivable extent. As the 
 ground of their admission is to explain the possession, they 
 are limited to such as are explanatory of it. Anything be- 
 
 i Co. 137; Humes v. O'Bryan 74 
 Ala. 9; Benjamin v. McElwaine- 
 Richards Co., Ind., 37 N. E. 362; 
 Askew V. Reynolds, I Dev. & Bat. 
 367; Marsh v. Hampton, 5 Jones (N. 
 C.) 382; Goodgame v. Cole, 12 Ala. 
 77; Cole V. Varner, 31 Ala. 244; 
 Pomeroy v. Bailey, 43 N. H. 118; 
 Ragan v. Kennedy, i Tenn. 91; 
 Peck v. Land, 2 Geo. i, 46 Am. Dec. 
 368; Paper Works v. Willett, i 
 Robt. 131; Helfrich v. Stem, 17 
 Penn. 143; Carnahan v. Wood, 2 
 Swan, 500; Abney v. Kingsland, 10 
 Ala. 355, 44 Am. Dec. 491; Wag- 
 goner 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 N. H. 
 267; Poster V. Woodfin, 11 Ired. 339; 
 Robinson v. Pitzer, 3 W. Va. 335; 
 Redfield v. Buck, 35 Conn. 328; 
 Caldwell v. Rose, i Smith, 190; 
 Reed v. Smith, 14 Ala. 380; Farns- 
 worth V. Bell, 5 Sneed 531; Neal v 
 Peden, i Head, 546; Deakers v 
 Temple, 41 Penn. 234; Carrolton 
 Bank v. Cleveland, 15 La. An. 616; 
 Willies V. Farley, 3 C. & P. 395; 
 Wilbur V. Stickland, i Rawle, 458; 
 Grant v. Lewis, 14 Wis. 487, 80 Am. 
 Dec. 785; Blake v. Graves, 18 Iowa, 
 312; Cahoon v. Marshall, 25 Cal. 
 
 197; Newlin v. Lyon, 49 N. Y. 661; 
 Caswell V. Hill, 47 N. H. 407; Bur- 
 gert V. Borchert, 59 Mo. 80; Jones 
 V. King, 86 111. 225; Glaze v. Blake, 
 56 Ala. 379; Hilliard v. Phillips, 81 
 N. C. 99; Otis V. Brown, 59 Geo. 711; 
 Carney v. Carney, 7 Baxter, 284; U. 
 S. V. Griswold, 8 Fed. Rep. 556; 
 Mills z). Thompson, 72 Mo. 367; 
 Lowman v. Sheets, 124 Ind. 416, 7 
 L. R. A. 784, 24 N. E. 351; Durham 
 V. Shannon, 116 Ind. 403, 19 N. E. 
 190; Creighton v. Hoppis, 99 Ind. 
 369; Loos V. Wilkinson, no N. Y. 
 195, 1 L. R. A. 250, 18 N. E. 99; 
 Reiley v. Haynes, 38 Kans. 259, 5 
 Am. St. Rep. 737, 16 Pac. 440. 
 
 IMcBride v. Thompson, 8 Ala. 
 650. 
 
 SWalcott 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. 
 
 STrotter v. Watson, 6 Humph. 
 709; Donaldson z*. Johnson, 2 Chand. 
 160; Ford V. Williams, 13 N. Y. 577, 
 s. c. 24 N. Y. 359; Mayer z/. Clark, 
 40 Ala. 259. 
 
 ''Waters v. Riggin, 19 Md. 536; 
 Walcott V. Keith, 22 N. H. 196; Up- 
 son V. Raiford, 29 Ala. 188; vide 
 Williams v. Kelsey, 6 Geo. 365. 
 
 ^Thomas v. De Graffenreid, 17 
 Ala. 602. 
 
EVIDENCE. 583 
 
 yond this is no part of the thing done, and consequently is 
 inadmissible/ unless it is competent for some other reason. 
 
 § 601. Relations of the Parties and Events Connected With 
 the Transfer. — It is always competent to show what pre- 
 cedes and follows the transfer, the relations of the parties 
 both prior and subsequent, and all the facts and circum- 
 stances surrounding it.^ It is upon this ground that 
 evidence of other contemporaneous transfers between the 
 same parties is admissible.^ It must, however, be shown 
 that they were so connected with the transfer in contro- 
 versy as to make it apparent that the parties had a com- 
 mon purpose in both.* The principle applies also to sub- 
 sequent transfers.^ But even though fraud is proved in 
 other transfers it is not conclusive.** The whole conduct 
 of the parties with reference to the property transferred 
 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 tralisaction, but the subsequent acts 
 are calculated to explain the motives which actuated the 
 parties at the beginning and give tone to the original pur- 
 pose.^ Such subsequent acts are also admissible in favor 
 
 lAbney Z". Kingsland, lo Ala.3S5, 24 Iowa, 582; Erfort v. Consalus, 
 
 44 Am. Dec.491; McBride z/.Thomp- 47 Mof 208; McCabe v. Brayton, 38 
 
 son, 8 Ala. 650; Borland v. Mayo, 8 N. Y. i 96; Engraiiani v. Pate, 51 
 
 Ala. 104; Christopher v. Covington, Geo. 337; S^iith v. Schmed, 9 Fed. 
 
 2 B. Mon. 357; vide Burckmyers v. Rep. 483; Knowlton v. Moseley, 
 
 Mairs, Riley, 208; McCord v. Mc- 105 Mass. 136. 
 
 Cord, 3 Rich. (N. S.) 577. ^Williams v. Robbins, 81 Mass. 
 
 SErfort V. Consalus, 47 Mo. 590; Sutter z^. lyackman, 39 Mo. 91; 
 
 208; Tedrowe v. Esher, 56 Ind. 443; Grant v. Libby, 71 Me. 427. 
 
 Blum V. Jones, 86 Tex. 492, 25 S. BLynde v. McGregor, 95 Mass. 
 
 W. 694. 172, 90 Am. Dec. 188. 
 
 3Vin Kirk v.. Wilds, 11 Barb. eCoUumb v. Read, 24 N. Y, 505. 
 
 520; Amsden v. Manchester, 40 7Flanigan v. L,ampman, 12 Mich. 
 
 Barb. 158; Gibbs v. Neely, 7 Watts, 58; Dallam v. Renshaw, 26 Mo. 533; 
 
 305; M'llvoy V. Kennedy, 2 Bibb. Wilson v. Ferguson, 10 How. Pr. 
 
 380; Benham v. Cary, 11 Wend. 83; 175; Wright v. Linn, 16 Tex. 34; 
 
 Cumming v. Fryer, Dudley, 182; Forbes v. Waller, 25 N. Y. 430; s. c. 
 
 Trotter z/. Watson, 6 Humph. 509; 4 Bosw. 475; s. c. 25 How. Pr. 166; 
 
 Pierson z/.Tom, i Tex. 577; Helfrich Carr v. Gale, Davies 328; Snod- 
 
 ■V. Stem, 17 Penn. 143; Belt v. Rag- grass v. Bank, 25 Ala. 161, 60 Am. 
 
 uet, 27 Tex. 471; Price v. Mahoney, Dec. 505; Blue v. Penniston, 27 Mo. 
 
584 
 
 EVIDENCE. 
 
 of the graatee.^ The transfer, however, must be judged 
 by its terms and in the light of the contemporaneous and 
 subsequent acts of the parties. These furnish the data for 
 determination of the intent and motives with which it was 
 made.^ 
 
 § 602. Contemporaneous Acts. — Evidence of the conditiqri 
 and acts of the parties at and about the time of the trans- 
 fer is competent, for it serves to show the reasonableness 
 of their conduct and to throw light upon their motives. It 
 may be shown that the grantor was indebted,^ or intoxi- 
 cated,* or reputed to be in embarrassed circumstances,^ or 
 that suits were pending against him,^ or that he subse- 
 quently became insolvent.^ Proof of a subsequent mort- 
 gage which covered all the grantor's property is evidence 
 as tending to prove his condition as to solvency at the time 
 of the conveyance.^ Evidence of the value of the property 
 is competent.^ It may also be shown that the grantee was 
 unable to purchase the property,^" or that the statements in 
 
 272; Warren v. Williams, 52 Me, 
 343; Starin v. Kelly, 36 N. Y. Sup. 
 366; Dambmann v. Butler, 4 T. & C. 
 542; Smith V. National Benefit, 
 Society, 123 N. Y. 85, 9 I,. R. A. 
 616, 25 N. E. 197. 
 
 ICecil Bank v. Snively, 23 Md. 
 253; Helfrich v. Stem, 17 Penn. 143; 
 Graham v. lyockhart, -8 Ala. 9; 
 Creagh v Savage, 14 Ala. 454. 
 
 SForbes v. Waller, 25 N. Y. 430; 
 s. c. 4 Bosw. 475; s. c. 25 How. Pr. 
 166. 
 
 SHamet v. Dundass, 4 Penn. 175; 
 Manhattan Co. z^. Osgood, 15 Johns. 
 162; s. c. 3 Cow. 612; Covanhovan v. 
 Hart, 21 Penn. 495, 60 Am. Dec. 
 57; Helfrich v. Stem, 17 Penn. 143; 
 Smith V. Henry, 2 Bailey, 118; s. c. 
 I Hill, 16; Williams v. Banks, 11 
 Md. 198; s. c. 19 Md. 22; Mills v. 
 Howeth, 19 Tex. 257; Waters v. 
 Dashiell, i Md. 455; King v. Bailey, 
 6 Mo. 575; Stewart v. Fenner, 81 
 Penn. 177. 
 
 ^Delaware!/. Ensign, 21 Barb. 85. 
 
 SSweetster v. Bates, 117 Mass. 
 466; Hinds V. Keith, 57 Fed. 10, 13 
 U. S. App. 222, 6 C. C. A. 231. 
 
 SHarrell v. Mitchell, 61 Ala. 270; 
 Barber v. Terrell, 54 Geo. 146; Jones 
 V. King, 86 111. 225. 
 
 ''King V. Poole, 61 Geo. 373; 
 Smith V. Chenault, 48 Tex. 455. 
 
 SSweetster v. Bates, 117 Mass. 
 466. 
 
 9Stacy z/.Deshaw, 14 N. Y. Supr. 
 449. 
 
 lOBorland v. Mayo, 8 Ala. 104; 
 Demeritt v. Miles, 22 N. H. 523; 
 M'llvoy V. Kennedy, 2 Bibb. 380; 
 Hyman v. Bailey, 13 I,a. An. 450; 
 Amsden v. Manchester, 40 Barb. 
 158; Belt V. Raguet, 27 Tex. 471; 
 Stebbins v. Miller, 94 Mass. 591; 
 Rea V. Missouri, 17 Wall, 532; John- 
 son V. Lovelace, 51 Geo. 18; Sweet- 
 ster V. Bates, 117 Mass. 466; Mc- 
 Connell v. Martin, 52 Ind. 454; vide 
 Derby v. Gallup, 5 Minn. 119; Cook 
 V. Swan, 5 Conn. 140. 
 
EVIDENCE. 
 
 585 
 
 a written instrument are false;^ or that receipts between 
 the parties are fraudulent.^ Heavy purchases immediately 
 preceding the transfer may be shown.^ The declarations 
 of one grantee are not admissible against another who holds 
 with him as tenant in common.* The fact of an attorney's 
 advice to the grantee may be shown.^ 
 
 § 603. 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 sometimes 
 held to be prima facie evidence of the fact.^ It is, however, 
 the lowest species of prima facie evidence, inasmuch as the 
 same motives which would induce parties to make and execute 
 
 iPeake v. Stout, 8 Ala. 647. 
 
 SBalt. & Ohio R. R. Co. v. Hoge, 
 34 Penn. 214. 
 
 SCurtis V. Moore, 20 Md. 93. 
 
 ■iManhattan Co. v. Osgood, 3 
 Cow. 612; s. c. 15 Johns. 162; Gra- 
 ham V. Lockhart, i8 Ala. 9; Gov- 
 ernor V. Campbell, 17 Ala. 566; 
 Cuyler v. McCartney, 40 N. Y. 221; 
 s. c. 33 Barb. 165. 
 
 5Goodgame v. Cole, 12 Ala. 77; 
 Nicholson v. I,eavitt, 4 Sandf. 252, 
 s. c. 6 N. Y. 510, s. c. 10 N. Y. 591, 
 57 Am. Dec. 499; Fisher v. True, 38 
 Me. 534; vide Lee v. Lamprey, 43 
 N. H. 13. 
 
 6Glenn v. Grover, 3 Md. 212, s. 
 c. 3 Md. Ch. 29; Faringer v. Ram- 
 say, 2 Md. 365; s. c. 4 Md. Ch. 33; 
 Glenn v. Randall, 2 Md. Ch. 220; 
 Moore v. Blondheim, 19 Md. 172; 
 Stockett V. HoUiday, 9 Md. 480; 
 Mayfield v. Kilgour, 31 Md. 240; 
 Marden v. Babcock, 43 Mass. 99; 
 Every v. Edgerton, 7 Wend. 259; 
 Foster v. Hall, 29 Mass. 89; Lutton 
 V. Hesson, 18 Penn. 109; Clark v. 
 Depew, 25 Penn. 509, 64 Am. Dec. 
 717; Hundley v. Buckner, 14 Miss. 
 7,0; Hempstead v. Johnston, 18 Ark. 
 123, 65 Am. Dec. 458; Brown v. 
 Bartee, 18 Miss. 268;Splawn v. Mar- 
 
 tin, 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. Guggenheim, 3 Cold. 
 284; Shontz V. Brown, 27 Penn. 123. 
 Contra, Merrill v. Locke, 41 N. H. 
 486; Kimball v. Fenner, 12 N. H. 
 248; Prescott V. Hayes, 43 N. H. 593; 
 Belknap v. Wendell, 21 N. H. 175; 
 Ferguson v. Clifford, 37 N. H. 86; 
 Claywell v. McGimpsie, 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; Mc- 
 Gintry v. Reeves, 10 Ala. 137; Mc- 
 Caskle v. Amarine, 12 Ala. 17; Dolin 
 V. Gardner, 15 Ala. 758; Ferguson 
 V. Gilbert, 16 Ohio St. 88; Vogt v. 
 Ticknor, 48 N. H. 242; Brown v. 
 Knox, 6 Mo. 302; College v. Powell, 
 12 Gratt. 372; Crow v. Ruby, 5 Mo. 
 484; Kinnard v. Daniel, 13 B. Mon. 
 496; Hubbard v. Allen, 59 Ala. 283; 
 Horton v. Dewey, 53 Wis. 410, 10 
 N. W. 599; Childs V. Hurd, 32 W. Va. 
 66, 9 S. E. 362; Rogers v. Verlander, 
 30 W. Va. 619, 5 S. B. 847; Knight 
 V. Capito, 23 W. Va. 689. 
 
 "The recitals in a deed are not 
 proof against creditors attacking the 
 
586 EVIDENCE. 
 
 a fraudulent conveyance would induce them to insert an ac- 
 knowledgment of the payment and receipt of the consider- 
 ation;^ and therefore where there is any evidence of fraud 
 there must be other proof of the consideration.^ The 
 declarations of the debtor, not made in the presence of the 
 grantee, are not admissible to prove the consideration.^ 
 But declarations of the debtor prior to the alleged incep- 
 tion of the fraud are admissible in favor of the grantee.* 
 Proof can not be given of the payment of the considera- 
 tion after the commencement of the suit.^ 
 
 604. 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.^ It is 
 only when an instrument is assailed by creditors that the 
 amount and character of the consideration become ma- 
 terial. In such controversies it is a leading principle that no 
 evidence is admissible ■ which contradicts the deed or 
 changes its character.^ The kind of consideration deter- 
 mines whether the instrument belongs to the class of deeds 
 known as bargains and sales, or covenants to stand seized 
 
 deed. If such recitals were proof 434, Bickaell v. Mellett, 160 Mass. 
 against creditors, it would be put- 328, 35 N. E. 1130; Hooper v. Ed- 
 ting into the hands of a fraudulent wards, 18 Ala. 280; Colquitt v. 
 debtor a most dangerous weapon." Thomas, 8 Geo. 258; Taylor v, 
 De Farges v. Ryland, 87 Va. 404, Moore, 2 Rand. 563; Coole v. Bra- 
 12 S. E. 805; William and Mary ham, 3 Exch. 183; U. S. v. Mertz, 2 
 College V. Powell, 12 Gratt. 372. Watts, 406; Whiting v. Johnson, 11 
 And see Proskauer w. Peoples' Sav- S. & R. 328; Wilson v. Hillhouse,. 
 ings Bank, 77 Ala. 257. 14 Iowa, 199; Barber v. Terrell, 54 
 
 IClapp u. Tirrell, 37 Mass. 247; Geo. 146. Cow^ra, Moss t/. Bearing, 
 
 Clark V. Depew, 25 Penn. 509, 64 45 Iowa, 530. 
 
 Am. Dec. 717; Morris Canal Co. v. ^Dwight v. Brown, 9 Conn. 83; 
 
 Stearns, 23 N. J. Eq. 414; U. S. v. Morris Canal Co. v. Stearns, 23 N. 
 
 Griswold, 8 Fed. Rep. 556. . J. Eq. 414. 
 
 2Whitaker v. Garnett, 3 Buslj. BAngravez;. Stone, 45 Barb. 35. 
 
 402; Redfield Manuf. Co. v. Dysart, 6Bank v. Housman, 6 Paige, 526; 
 
 62 Penn. 62; Allen v. Cowan, 28 Doe v. Hurd, 8 Blackf . 310; Jackson 
 
 Barb. 99, s. c. 23 N. Y. 502; Rogers v. Garnsey, 16 Johns. 189; Cunning- 
 
 V. Hall, 4 Watts, 359; Zerbe v. Mil- ham v. Dwyer, 23 Md. 219. 
 ler, 16 Penn. 488; Mead v. Phillips, 'Betts v. Union Bank, i H. & G. 
 
 I Sandf. Ch. 83. 175; Galbraith v. Cook, 30 Ark. 
 
 SYardley v. Arnold, i Car. & M. 417. 
 
EVIDENCE. 587 
 
 to uses, and to whichever class it belongs its character can 
 not be changed by parol evidence.^ 
 
 § 605. What Evidence of Consideration Admissible.— If 
 
 no consideration, is expressed in a deed, evidence of a con- 
 sideration may be given.^ If the deed purports to be for a 
 valuable consideration, evidence may be given of an addi- 
 tional consideration of the same kind as that so set forth.* 
 This additional consideration may consist either of money 
 paid to the grantor's creditors,* or an indebtedness due to the 
 grantee,^ or a liability as indorser,^ or the grantee's note',^ 
 or a claim for damages,^ or future advances,^ or marriage,^" 
 or any other valuable consideration.-'^ A mere secret parol 
 trust to apply the property to the benefit of the grantor's 
 creditors is not sufficient.^ A mere nominal consideration 
 may, according to circumstances, constitute a voluntary 
 deed,^* or a deed founded upon a valuable consideration.^* 
 
 § 606. From Otlier Parties. — It is not necessary th at the 
 proof should show that the consideration passed immedi- 
 ately from the grantee to the grantor. If A. bargains for 
 land with B., and pays the agreed price, and at A's request 
 
 ICunninghain v. Dwyer, 23 Md. Spellows v. Emperor, 13 Barb. 92. 
 
 210. 9Craig v. Tappin, 2 Sandf. Ch. 
 
 SPeacock v. Monk, i Ves. Sr. 127; 78; Bank v. Finch, 3 Barb. Ch. 293; 
 
 Howell V. Elliott, i Dev. 76; Banks Lawrence v. Tucker, 23 How. 14; 
 
 V. Brown, i Riley Ch. 131, s. c. 2 cole v. Albers, i Gill. 412; Shirras 
 
 Hill Ch. 558. V. Craig, 7 Cranch 34. 
 
 SAnderson v. Tydings, 3 Md. Ch. lO^each v. Shelby, 58 Miss. 681. 
 
 167; Bulla:rd v. Eriggs, 24 Mass. 533; HTyler v. Carlton, 7 Me. 175. 
 
 Banks v. Brown, i Riley Ch. 131, s ISjones v. Slubey, 5 H. & J. 372; 
 
 c. 2 Hill Ch. 558; Cunningham v. nireley v. Staley, 5 G. & J. 432; 
 
 Dwyer, 23 Md. 219; McNeal v. Pettibone v. Stevens, 15 Conn. 19. 
 
 Glenn, 4Md. 87, s. c. 3 Md. Ch. 349. iSBaxter v. Sewell, 3 Md. 334, s. c. 
 
 ^Glenn v. Randall, 2 Md. Ch. 220; 2 Md. Ch 447; Walker v. Burrows, 
 
 Waters v. Riggin, 19 Md. 536. i Atk. 93; Wickes v. Clark, 8 Paige, 
 
 SAnderson v. Tydings, 3 Md, Ch. jgi^ g. c. 3 Edw. Ch. 58; Ridgeway 
 
 167; BufEum V. Green, 5 N. H. 71; j;. Underwood, 4 Wash. C. C. 129; 
 
 Cunningham v. Dwyer, 23 Md. 219; McKinley v. Combs, i Mon. 105; 
 
 Credle v. Carrawan, 64 N. C. 422; pelder v. Harper, 12 Ala. 612. 
 
 Hubbard v. Allen, 59 Ala. 283. mCunningham v. Dwyer, 23 Md. 
 
 BMcKinster v. Babcock, 26 N. Y. 219; Harvey v. Alexander, i Rand. 
 
 378. 219. 
 
 7Mayfield v. Kilgour, 31 Md. 240. 
 
588 EVIDENCE. 
 
 the deed is made to C. without any fraudulent intent, 0. 
 may maintain his title to the property by proving the con- 
 sideration so paid. Even if, the design of the conveyance 
 were that C. should hold the land in trust for A., but he 
 has executed no writing by which that trust can be legally 
 proved, still the title of C. can not be impeached by a 
 creditor of B. on that account, for a declaration of trust 
 may at any time afterwards be executed, or A. may confide 
 in the integrity of C, and it is a matter only between A. 
 and C. whether the trust be executed or not. In the case 
 supposed B. had obtained the value of his land, and his 
 creditors are not necessarily injured.^ 
 
 § 607. Contemporaneous Deeds. — For the purpose of repel- 
 ling any imputation of fraud it may be shown that a 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 circumstances 
 of each particular case, and not upon the simple fact 
 whether they are or are not, by express reference, grafted 
 into or connected with each other, and is generally a ques- 
 tion of f act.^ 
 
 §608. Notes and Judgments. — Evidence may be given to 
 show what was the consideration of a note which purports 
 to be for the value received.^ A judgment confessed in the 
 name of one person may be shown by parol to have been 
 given for debts due to others.* 
 
 § 609. Consideration can not be Yaried.— A deed purport- 
 ing to be for a valuable consideration can not be set up as 
 a gift.° If it purports to be given for love and affection. 
 
 iBullard v. Briggs, 24 Mass. 533; 173; Harris v. Alcock, 10 G. & J. 
 
 Harvey z/. Alexander, i Rand. 219. 226, 32 Am. Dec. 158; Groschen v. 
 
 2Harman v. Richards, 10 Hare, Thoroas, 20 Md. 234. 
 81; Gale V. Williamson, 8 M. & W. BHildreth v. Sands, 2 Johns. Ch. 
 
 405; Keen v. Preston, 24 Md. 395^ 35; s. c. 14 Johns. 493; Betts v. 
 
 Belt V. Raguet, 27 Tex. 471. Union Bank, i H. & G. 175; Rollins 
 
 3Harris v. Alcock, 10 G. & J. z/. Mooers, 25 Me. i92;z'zrfi?Brackett 
 
 226, 32 Am. Dec. 158. v. Wait, 4 Vt. 389. 
 
 ^Insurance Co. v. Wallis, 23 Md. 
 
EVIDENCE. 589' 
 
 pi-oof 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.^ Under the expression 
 "other good causes and considerations," the considerations 
 of love and affection may be shown. ^ A difference between 
 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.^ 
 
 § 610. Evidence on Yarious Points. — The grantee may 
 prove his ignorance of the grantor's insolvency.* The 
 debtor's schedules in bankruptcy^ and his prior offers to 
 sell the property to other persons^ are not competent 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 
 debtsj Proof that 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.^ A letter from the debtor to 
 the grantee, notifying him of the execution of a mortgage in 
 his favor is admissible.^ A verdict setting aside the trans- 
 fer for fraud in another suit between other parties,^" or the 
 issuing of an attachment by another creditor, is not com- 
 petent evidence.'^ Proof may be given of declarations made 
 by the grantee, prior to the transfer, of an intention to assist 
 
 lEUinger v. Crowl, 17 Md. 361; SCarrw. Gale, Davies, 328; Hatha- 
 
 McNeal v. Glenn, 4 Md. 87; s. c. 3 way v. Brown,'l8 Minn. 414; Barber 
 
 Md. Ch. 349; Hindes v. Longworth, v. Terrell, 54 Geo. 146. 
 
 II Wheat, 199; Baxter v. Sewell, 3 6Tifts v. Bunker, 55 Me. 178; 
 
 Md. 334; s. c. 2 Md. Ch. 447! Bean Fisher v. True, 38 Me. 534. 
 
 V. Smith, 2 Mason, 252; Potter z-. 7Mowerz/. Hanford, 6 Minn. 535. 
 
 Grade, 58 Ala. 303; vide Hender- SRice v. Cunningham, 116 Mass. 
 
 son V. Dodd, i Bailey Ch. 138. 466. 
 
 SPomeroy v. Bailey, 43 N. H.118. 9Sweetzer v. Mead, 5 Mich. 107. 
 
 SGraham z/. Lockhart, 8 Ala. 9; lOMower zi. iHanford, 6 Minn. 535. 
 
 Pomeroy v. Manin, 2 Paine, 476. llMiner v. Phillips, 42 111. 128. 
 '^Filley v. Register, 4 Minn. 391. 
 
590 EVIDENCE. 
 
 the debtor to evade the claims of his creditors.^ Declara- 
 tions by the debtor of mere abstract opinions — as, for 
 instance, that a man ought to secure something for his 
 family — are irrelevant.^ 
 
 §611. Burden of Proof. — It is a universal principle both 
 at law and in equity that the law never presumes fraud. 
 Odiosa et inhonesta non sunt in lege prcBsumenda et in facto 
 quod se habet ad bonum et malum de bono quam malo prcB- 
 sumendum est. The burden of proof, therefore, rests upon 
 the creditors whenever they assail a transfer for fraud.^ 
 
 § 612. Direct Proof Not Necessary. — It is not necessary, 
 however, to establish it by direct and positive proof, for 
 ■ this can seldom be done. • Grenerally 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 at- 
 tempts at detection. No man willingly furnishes the evi- 
 dence 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 fre- 
 quently circuitous and difficult of detection. It is there- 
 fore usually established by circumstantial evidence.* 
 
 IFoster v. Thompson, 71 Mass. Hamilton v. Bishop, 22 Iowa, 211; 
 
 453; Helfrich V. Stem, 17 Penn. 143. Rochester v. Sullivan, Ariz, 11 Pac. 
 
 2Whiting V. Johnson, 11 S. & 58, see note; Deering v. Collins, 38 
 
 E- 328. Mo. App. 73; Pettingill v. Jones, 
 
 SThornton v. Hook, 36 Cal. 223; 30 Mo. App. 280; Kipp v. Lamor- 
 
 Foster v. Hall, 2g Mass. 89; Nichols eaux, 81 Mich. 299, 45 N. W. 1002; 
 
 V. Patten, 18 Me. 231; Blaisdell v. Hombs v. Corbin, 34 Mo. App. 393; 
 
 Cowell, 14 Me. 370; Fifield v. Gas- Roberts v. Buckley, 145 N. Y. 215, 
 
 ton, 12 Iowa, 218; Bell v. Hill, i 39 N. E. 966, 64 N. Y. St. Rep. 600; 
 
 Hayw. 72; Sutter v. Lackman, 39 Bruce v. Berdan, Mich., 62 N. W. 
 
 Mo. 91; Elliott V. Stoddard, 98 Mass. 568; Merchants' and M. Nat'l Bank 
 
 145; Miller v. Finn, i Neb. 254 v. Fisher, 15 Pa. 17, 24 Pitts. L. J. 
 
 Pringle v. Sizer, 2 Rich. (N. S.) 59; N. S. 210, 27 Atl. 848, 33 W. N. C. 
 
 Brewer v. Gay, 24 La. An. 35; Hath- 564. And see sections m, 177, 249, 
 
 away w. Brown, 18 Minn. 414; Grant 256,288,351,352, ante. 
 V. Ward, 64 Me. 239; Morgan v. ^Bullock v. Narrott, 49 111. 62; 
 
 Alvey, 53 Ind. 6; Wilds «. Bogan, Kempner z'. Churchill, 8 Wall. 362; 
 
 55 Ind. 331; Darling v. Hurst, 39 Floyd v. Goodwin, 8 Yerg. 484; 
 
 Mich. 76s; Pratt v. Pratt, 96 111. 184; Sibley v. Hood, 3 Mo. 290; Wright 
 
EVIDENCE. 591 
 
 § 613. Mode of Proof— No transfer is fraudulent unless it 
 is made with an intent to delay, hinder or defraud cred- 
 itors, and this intent is an emotion of the mind, and can 
 usually be shown only by the acts and declarations of the 
 party .^ These acts and declarations, and all the concomi- 
 tant circumstances, must be established, and then the 
 motive may be deduced from them in accordance with 
 those principles which are shown by experience and ob- 
 servation to rule human conduct.^ The proof in each case 
 will consequently depend upon its own circumstances.^ It 
 usually consists of many items of evidence which, standing 
 detached alone, would be immaterial, but which, in connec- 
 tion 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. Qucb tingula non prosunt, juncta 
 jutant. Although the evidence is generally circumstantial 
 it is often as potent as direct testimony. Sometimes a 
 combination of circumstances characterizes a transaction so 
 plainly and so clearly as to stamp upon it unerring and in- 
 delible marks of fraud which can not be mistaken, and the 
 transaction itself present phases so remarkable and peculiar 
 that no fair-minded person can hesitate to pronounce it 
 fraudulent. The indicia are often the clearest proof and 
 quite as reliable as positive evidence.* 
 
 § 614. Fraud may be Presumed. — It is sometimes said 
 that fraud can never be presumed, but the fact that it is 
 
 «<. Grover, 27 111. 426; King z;. Moon, Means w. Peaster, 4 Rich. (N. S.) 
 
 42 Mo. 551 ; Newman z/. Cordell, 43 249; Thames v. Rembert, 63 Ala. 
 
 Barb. 448; Hicks v. Stone, 13 Minn. 561; Tognini v. Kyle, 15 Nev. 464; 
 
 434, Pope jy. Andrews, I S. & M. State z/. Estel, 6 Mo. Ap. 6; Kurtzz/. 
 
 Ch. 135; Land v. JefEries, 5 Rand. Miller, 26 Kans. 548. 
 
 59q; Rogers v. Hall, 4 Watts, 359; iBabcock v. Eckler, 24 N. Y. 623. 
 
 Curtis V. Moore, 20 Md. 93; Mc- spilley v. Register, 4 Minn. 391. 
 
 Conihe v. Sawyer, 12 N. H. 396; 3HufE v. Roane, 22 Ark. 184; Har- 
 
 Kane v. Drake, 27 Ind, 29; Chap- rell v. Mitchell, 61 Ala. 270. 
 
 man v. O'Brien, 34 N. Y. Sup. 524; *Newman v. Cordell, 43 Barb. 
 
 Rea V. Missouri, 17 Wall. 532; ^48; Boies v. Henney, 32 111. 130; 
 
 Farmer v. Calvert, 44 Ind. 209; Hopkins w. Sievert, 58 Mo. 201. See 
 
 Farmer v. Calvert, 44 ina. 209; Jiopjcms v., 
 Burgert v. Borchert, 59 Mo. 80; chapter IV, 
 
 ante 
 
692 EVIDENCE. 
 
 generally established by circumstantial evidence shows 
 that this expression is incorrect. The law never presumes 
 fraud, but fraud itself may be established by inference the 
 same as any other fact. Presumptions are of two kinds, 
 legal and natural. Allegations of fraud are sometimes 
 supported by one and sometimes by the other, and are sel- 
 dom, almost never, sustained by that direct and plenary 
 proof which excludes all presumption. Fraud is established 
 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 uncommon 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 protect the 
 rights of honest men from this as from other invasions. 
 Fraud in the transfer of goods or land may be shown 
 by the same amount of proof as will establish any other 
 fact in its own nature as likely to exist. In any case the 
 number and cogency of the circumstances from which guilt 
 may be inferred are proportioned to the original improba- 
 bility of the offence. The frequency of frauds upon 
 creditors, the difficulty of detection, the powerful motives 
 which tempt an insolvent man to commit it, and the plausi- 
 ble casuistry with which it is sometimes reconciled to the 
 consciences even of persons whose previous lives have 
 been without reproach, are considerations which prevent 
 its classification among the grossly improbable violations 
 of moral duty, and often permit it to be presumed from 
 facts which may seem slight. How much evidence is re- 
 quired to raise a presumption of actual fraud can not be 
 determined according to any inflexible rule.^ 
 
 § 615. 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 
 
 iKaine v. Weigley, 22 Penn. 179; Thomas, 8 Geo. 258; Kelly v. Leni- 
 Kendall z/. Hughes, 7 B. Mon. 368; han, 56Ind.448;White z/.Perry,i4W. 
 Reed v. Noxon,48 III.323; Colquitt v. Va. 66. See sections 25 and 28, ante. 
 
EVIDENCE. 593 
 
 the parties.-' Such an imputation is grave in its character 
 and can only be sustained on satisfactory proof. If the 
 evidence is so conflicting that no 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.^ 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.* Fraud will never be imputed when the circum- 
 stances and facts upon which it is predicated may be consist- 
 ent with honesty and purity of intention.^ 
 
 § 616. Not Inconsistent with other Theory.— It is not 
 
 necessary, however, that the evidence tending to the con- 
 clusion of fraud should be incapable of being accounted for 
 upon any other hypothesis. There is no rule of evidence 
 or principle of law which requires that the circumstances 
 must be of so conclusive a nature and tendency as to ex- 
 clude every other hypothesis than the one sought to be es- 
 tablished, in order to authorize the inference of fraud from 
 circumstantial evidence. 
 
 § 617. Witness can not Testily to Another's Intent.— The 
 
 intent with which an act is done is to be ascertained from 
 
 IThompson v. Sanders, 6 J. J. i8 La. An. 648; King v. Moon, 42 
 
 Marsh. 94; Blow z/. Gage, 44 III. 208. Mo. 551; Waterman v. Donaldson, 
 
 2Kaine v. Weigley, 22 Penn. 179; 43 111. 29; Jaeger v. Kelly, 44 How. 
 
 Bodine v. Simmons, 38 Micli. 682. Pr. 122, s. c. 52 N. Y. 274; Darling 
 
 sParkhurst z/. McGraw, 24 Miss. v. Hurst, 39 Mich. 765; Pogodinski 
 
 134; Blow V. Gage, 44 111. 208; Wad- v'. Kruger, 44 Mich, 79. 
 dinham v. Loker, 44 Mo. 132; Bart- ipifield v. Gaston, 12 Iowa, 218. 
 
 lett z/. Blake, 37 Me. 124; Belk v. 5Stiles z/. Lightfoot, 26 Ala. 443; 
 
 Massey, 11 Rich. 614; Roberts v. Lyman v. Cessford, 15 Iowa, .^29; 
 
 Guernsey, 3 Grant, 237; Phettiplace Dallam v. Renshaw, 26 Mo. 533; 
 
 V. Sayles, 4 Mason, 312; Hale v. Schofield v. Blind, 33 Iowa, 175; 
 
 Saloon Omnibus Co., 4 Drew, 492; Rumbolds v. Parr, 51 Mo. 592; Page 
 
 s. c. 28 L. J. Ch. 777; Thompson v. v. Dixon, 59 Mo. 43; Drummond v. 
 
 Sanders, 6 J. J. Marsh. 94; Glenn v. Couse, 39 Iowa, 442; Burleigh v. 
 
 Grover, 3 Md. 212, s. c. 3 Md. Ch. White, 64 Me. 23, Tompkins v. 
 
 29; Faringer v. Ramsay, 2 Md. 365, Nichols, 53 Ala. 199; Schultze v. 
 
 s. c. 4 Md. Ch 33; Buck v. Sherman, Hoagland, 85 N. Y. 464; State v. 
 
 2 Doug. (Mich.) 176; White v. Trot- Estel, 6 Mo. Ap. 6. 
 ter, 21 Miss. 30; Hoose v. Robbins, 
 
594 
 
 EVIDENCE. 
 
 the circumstances surrounding it, and from the acts and 
 declarations of the parties, and is therefore a deduction or 
 inference from facts; consequently a witness 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.^ 
 
 § 618. Testimony of Party to his owa Intent.— The debtor 
 and the grantee^ may each testify in regard to his own 
 
 iPeake 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, 214. 
 SA witness may testify to his own 
 intent in doing any act when the 
 nature of that intent is material to 
 the issue. People v. Farrell, 31 
 Cal. 576; Germania Fire Insurance 
 , Company v. Stone, 21 Fla. 555; 
 Miner v. Phillips, 42 111. 123; 
 Shockey v. Mills, 71 Ind. 288, 36 
 Am. Rep. ig6; Sedgwick v. Tucker, 
 go Ind. 271; Bidinger v. Bishop, 76 
 Ind. 244; Heap v. Parrish, 104 Ind. 
 36; Ross V. State, 116 Ind. 495, 19 
 N. E. 451; Greer v. State, 53 Ind. 
 420; White V. State, 53 Ind. 595; 
 Over V. Schiffling, 102 Ind. 191; 
 Watson V. Chesire, 18 Iowa 202, 87 
 Am. Dec. 382; Frost v. Rosecrans, 
 66 Iowa 405, 23 N. W. 895; Gardom 
 V. Woodward, 44 Kans. 758, 21 Am. 
 St. Rep. 310 (see valuable note by 
 A. C. Freeman, Esq.), 25 Pac. 199; 
 Wheelden v. Wilson, 44 Bjlaine 11; 
 Roddy V. Finnegan, 43 Md. 490; 
 Fenwick v. State, 63 Md. 239; 
 Phelps V. George's Creek Co., 60 
 Md. 536; Snow V. Paine, 114 Mass. 
 520; Fish V. Chester, 8 Gray 506; 
 Thacher «. Phinney, 7 Allen 146; 
 Lombard v. Oliver, 7 Allen 155; 
 Perry v. Porter, 121 Ma.ss. 522; 
 Watkins v. Wallace, 19 Mich. 56; 
 Garrett v. Maunheimer, 24 Minn. 
 193; Berkey v. Judd, 22 Minn. 287; 
 
 Vansickle v. Brown, 68 Mo. 627; 
 State V. Harrington, 12 Nev. 126; 
 Norris v. Morrill, 40 N. H. 395; 
 Hall V. Taylor, 45 N. H. 405; Delano 
 V. Goodwin, 48 N. H. 303, 97 Am. 
 Dec. 6oi; Kerrains v. People, 60 N. 
 Y. 221, 19 Am. Rep. 158; Thurston 
 V. Cornell, 38 N. Y. 281; Superin- 
 tendent V. Superintendent, 44 N. 
 Y. 22; Cortland Co. v. Herkimer 
 Co., 44 N. Y. 22; Seymour v. Wil- 
 son, 14 N. Y. 567; McKown v. Hun- 
 ter, 30 N. Y. 625; Bedell v. Chase, 
 34 N. Y. 386; People v. Baker, 96 N. 
 Y. 340; Kennedy v. Ryall, 67 N. Y. 
 379; Stearns v. Gosselin, 58 Vt. 194; 
 Anderson v. Wehe, 62 Wis. 402, 22 
 N. W. 584. 
 
 "Upon the review of all the cases, 
 it would appear that in cases aris- 
 ing under a statute, where the 
 statute makes the intent of the one 
 doing an act iavolved in the issue 
 essential, it is competent to inquire 
 of him as a witness what his intent 
 was, and his testimony goes to the 
 jury with the other evidence con- 
 tradicting or corroborating it." 14 
 Alb. L. J. 387 (Dec. 1876). 
 
 "Motives are eminently infer- 
 ences from conduct. The facts 
 from which the inferences are to be 
 drawn are to be detailed by the wit- 
 nesses; for the jury the work of in- 
 ference is to be reserved. Yet 
 when a party is examined as to his 
 own conduct he may be asked as to 
 his motives, his testimony to such 
 
EVIDENCE. 
 
 595 
 
 intentions. Such testimony on the part of the debtor is 
 not regarded as anything more than an expression of his 
 ■opinion as to the character of the transaction, and is not 
 
 motives beiug based, not on infer- 
 ence but on consciousness." Whar- 
 ton on Evidence, section 508. 
 
 "The criminal purpose or intent 
 must always be' proved. It is 
 usually inferred from the character 
 and circumstances of the ofEense, or 
 proved by preceding threats, accom- 
 panying declarations or subsequent 
 conduct or admissions. Now that 
 the defendant himself is admitted 
 as a witness it must be competent 
 for him to testify directly to that 
 which is always a subject of proof 
 ■or disproof by indirect evidence." 
 •Commonwealth v. Woodward, 102 
 Mass. 155. 
 
 "The condition of a man's mind 
 with reference to what he thinks, 
 feels, believes, intends, and his 
 motives, is always a fact, and it is a 
 fact which is often required to be 
 ascertained in criminal cases; and 
 •only one person in the world has 
 dny actual knowledge concerning 
 that fact, and that person is the 
 •one whose condition of mind is in 
 ■question; and when he is a compe- 
 tent witness to prove such condi- 
 tion he may testify to the same 
 directly. Other witnesses can tes- 
 tify only to extraneous facts tend- 
 ing to prove this condition. He 
 may also testify to such extraneous 
 facts, but he may testify directly as 
 to what the condition of his own 
 mind is or was at any particular 
 time or on any particular occasion." 
 Gardom v. Woodward, 44 Kans. 758,- 
 21 Am. St. Rep. 310, 25 Pac. 199. 
 
 "The rule that the intent must be 
 inferred from the acts and words of 
 the party had its foundation in 
 necessity created by the rule -which 
 excluded parties in interest from the 
 
 witness stand. That necessity is now 
 removed by the abrogation of the 
 rule which created it." . . . "There 
 is no more danger of imposing upon 
 the jury falsehood or pretence, in 
 respect to motives or intents, than 
 there is of doing the like in respect 
 to visible or external circumstances. 
 The jury can as readily distinguish 
 between the false and the true in 
 respect to the former as the latter. 
 If the motive or intent assigned is 
 inconsistent with the external cir- 
 cumstances it must be discarded as 
 
 false." "That in a 
 
 search for truth, whether in the 
 course of judicial proceedings or 
 in the prosecution of any other 
 science no source of information 
 should be closed, cannot be denied, 
 on the score of theory at least." 
 People V. Farrell, 31 Cal. 576. 
 
 In Alabama, however, it is held 
 that such motive or intention is of 
 necessity an inferential fact, that 
 the jury must infer the intent from 
 the act, its nature, consequences 
 and attendant circums'^ances, and. 
 that evidence of the party as to his 
 own intent is inadmissible. Hinds 
 V. Keith, 57 Fed. 10, 13 U. S. App. 
 222, 6 C. C. A. 231; Burke v. State, 
 71 Ala. 377; McCormick" z/. Joseph, 
 77 Ala. 236; Wheless v. Rhodes, 70 
 Ala. 419. 
 
 The learned editor of the Ameri- 
 can State Reports (21 Am. St. Rep. 
 319) inclines to the view that in 
 Ohio a party may not testify to his 
 own intent, and cites Bolen v. State, 
 26 Oh. St. 371; Haywood v. Foster, 
 16 Ohio 88. But in Ohio Coal Co. 
 V. Davenport, 37 Ohio St. 194-197. 
 Justice Mcllvaine said: "When- 
 ever the intent with which an act is 
 
596 
 
 EVIDENCE. 
 
 conclusive,^ and unless it is supported by other evidence,, 
 is entitled to but little weight.^ A party to the transfer 
 can not be asked whether it was made for an improper pur- 
 pose, 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.^ The debtor's mere suppositions in regard to 
 his solvency are inadmissible.* 
 
 § 619. 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 suffici- 
 ency to satisfy the mind and conscience and produce a satis- 
 factory conviction or belief.^ The proof, however, must b& 
 satisfactory.^ It must be so strong and cogent as to satisfy 
 a man of sound judgment of the truth of the allegation.^ 
 It need not possess such a degree of force as to be irre- 
 
 done becomes the subject of in- 
 quiry, the person performing the 
 act, if competent to testify to the 
 act itself, is competent also to tes- 
 tify as to the intent. Whatever 
 may be thought of the truthfulness 
 of such witness, it is clear that his 
 means of knowledge are ample and 
 certainly it is no objection to the 
 competency of a witness that his 
 means of knowledge as to the fact, 
 to wit: the intent, surpass the 
 means of any other witness as to the 
 same fact." See also Barrett z'. 
 Hart, 42 Ohio St. 41. 
 
 A party to a written instrument 
 cannot testify to his secret intent 
 in executing it, the intent must be 
 gathered from the instrument. 
 Dillon V. Anderson, 43 N. Y. 231;, 
 Cake V. Pottsville Bank, 116 Penn, 
 St. 264, 9 Atl. 302; Spencer v. Colt, 
 89 Penn. St. 314; Browne <■. Hickie, 
 68 Iowa 330, 27 N. W. 276. 
 
 iBates V. Ableman, 13 Wis. 644; 
 
 Newman v. Cordell, 43 Barb. 448 
 IvOker V. Haynes, 11 Mass. 498 
 Brown v. Osgood, 25 Me. 505 
 GrifiSn v. Marquardt, 21 N. Y. 121 
 s. c. 17 N. Y. 28; Keteltas v. Wil- 
 son, 36 Barb. 298; s. c. 23 How. Pr. 
 69; vide Hathaway v. Brown, 18 
 Minn. 414. 
 
 ^Atwood V. Impson, 20 N. J. Eq. 
 150; Work V. Ellis, 50 Barb. 512J 
 Kittering v. Parker, 8 Ind. 44; 
 Borland v. Walker, 7 Ala. 269. 
 
 i'BlantZ'. Gabler, 77 N. Y. 461; s. 
 c. 8 Daly, 48. 
 
 ■•Ogden V. Peters, 15 Barb. 560;. 
 S.c. 21 N. Y. 23. 
 
 SLinn v. Wright, 18 Tex. 317; 
 Carter zi. Gunnels, 67 111. 270. 
 
 6King 7'. Moon, 42 Mo. 551 i 
 Fifield V. Gaston, 12 Iowa, 218;. 
 Lillie V. McMillan, 52 Iowa, 463; 
 Bixby V. Carskaddon, 58 Iowa, 533; 
 Rice V. Dignowithy, 18 Miss. 57. 
 
 ^Henry v. Henry, 8 Barb. 588; 
 Lockhard v. Beckley, 10 W. Va. 87. 
 
EVIDENCR. 597 
 
 sistible/ but there must be evidence of tangible facts from 
 wbich a legitimate inference of a fraudulent intent may be 
 drawn.^ Circumstances affording a strong presumption are 
 sufficient,^ but the presumption must be drawn from preg- 
 nant facts and not from far-fetched probabilities.^ Infer- 
 ences are to be drawn from such facts not singly but as a 
 whole." As an allegation of fraud is against the presump- 
 tion of honesty, it requires stronger proof than if no such 
 presumption existed." As it is against a presumption of 
 fact, perhaps often a slight one, it requires somewhat more 
 evidence than would suffice to prove the acknowledgment 
 of an obligation or the delivery of a chattel.'^ It is not 
 necessary, however, that the fraud shall be proved beyond 
 a reasonable doubt. Issues of fact in civil cases are deter- 
 mined by a preponderance of testimony, and the rule ap- 
 plies as well to cases in which fraud is imputed as to any 
 other. If the evidence produces a rational belief, it can 
 not be discarded although some doubt remains.^ If the 
 evidence is of sufficient force to produce a preponderance of 
 mental assent in favor of fraud it is sufficient.^ The pay- 
 ment of a full price does not purify a transaction, but is en- 
 titled to great weight when the proof of fraud is not clear. ^^ 
 
 § 620. Same Rule iu 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 gov- 
 erned by the same principles as a court of law in drawing 
 inferences from the testimony placed before it. The diffi- 
 culty of demonstrating the intention from the overt acts 
 
 ICarter v. Gunnels, 67 111. 270. Bryant v. Simoneau, 5 111. 324; Mc- 
 
 2jaeger v. Kelly, 44 How. Pr. Conihe v. Sawyer, 12 N. H. 396; 
 
 122, s. c. 52 N. Y. 274. Rice v. Dignowithy, 12 Miss. 57; 
 SParkhurst v. McGraw, 24 Miss. Watkins v. Wallace, 19 Mich. 57; 
 
 134; Hempstead z;. Johnston, 18 Ark. Alston v. Rowles, 13 Fla. 117; Trip- 
 
 123. ner v. Abrahams, 47 Penn. 220; 
 iPaxton V. Boyce, i Tex. 317. Lillie v. McMillan, 52 Iowa, 463; 
 SStebbins v. Miller, 94 Mass. 591. Bixby v. Carskaddon, 58 Iowa, 533. 
 SWhite V. Beltis, 9 Heisk. 645. 9Carter v. Gunnells, 67 111. 270; 
 7Hatch V. Bayley, 66 Mass. 27. Harrell v. Mitchell, 61 Ala. 270. 
 «Ford V. Chambers, 19 Cal.- 143; lOKittering v. Parker, 8 Ind. 44. 
 
598 EXTENT OF GRANTEE'S LIABILITY. 
 
 and conduct of the parties furnishes no reason for the as- 
 sertion of the power by a judge guided by no more certain 
 rule than his own arbitrary conclusions, to presume a fraud- 
 ulent intent from his own vague suspicions of the nature 
 and character of the transaction, unassisted and uncon- 
 trolled by any certain and fixed principles. The character 
 of a transaction is not thus dependent on the peculiar- 
 notions of the judge as to what will constitute good or ill 
 faith.i 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 bal- 
 ance. The creditors thus get what in equity and good con- 
 science they ought to have and the grantee ought not to 
 withhold from them.^ 
 
 CHAPTER XXIV. 
 
 EXTENT OF GRANTEE'S LIABILITY. 
 
 § 6<;i. Decree must conform to Jiill.— A creditor can not 
 subject any property to the satisfaction of his demand 
 which he does not claim by his bill.'^ The decree against 
 
 iWilson V. Ivott, 5 Fla. 305; vide Ward, i Atk. 260; Clements v. 
 
 Kingz/. Moon, 42 Mo. 551; Hemp- Moore, 6 Wall. 299; Drury :■. Cross, 
 
 stead V. Johnson, 18 Ark. 123, 65 7 Wall. 299; Doughten v. Gray, 10 
 
 Am. Dec. 458. N. J. Eq. 323; Bennett v. Musgrove, 
 
 SBoyd f. Dunlap, i Johns. Ch. 2 Ves. Sr. 51; Ward v. Shallet, 2 
 
 478; Bigelow V. Ayrault, 46 Barb. Ves. Sr. 16; Trimble v. Ratcliffe, 9, 
 
 143; Heme v. Meeres, i Vern. 465, B. Mon. 511, s. c. 12 B. Mon. 32; 
 
 s. c. 2 Bro. C. C. 177, n.; Bean v. Bailey z/. Kennedy, 2 Del. Ch. 20; 
 
 Smith, 2 Mason, 252; McArthur v. Loring v. Dunning, 16 Fla. 119; 
 
 Hoysradt, 11 Paige, 495; Barrow v. Hartfield v. Simmons, 12 Heisk. 
 
 Bailey, 5 Fla. 9 Scott v. Winship, 253; Shute v. Sturm, 6 Baxter, 139; 
 
 20 Geo. 429; Farmers' Bank z;. Long, Green v. Stuart, 7 Baxter, 418; 
 
 7 Bush, 337; McMeekin v. Ed- Hinkle v. Wilson, 53 Md. 287. 
 monds, i Hill Ch. 288; Garland v. SBozman v. Draughan, 3 Stew. 
 
 Rives, 4 Rand. 282; Barnwell v. 243; Wilson v. Horr, 15 Iowa, 489. 
 
EXTENT OF GRANTEE'S LIABILITY. 599 
 
 the grantee must in general be for a surrender of the 
 property, and not for an absolute sum.^ It will not affect 
 a prior transfer made between the parties in good faith.^ 
 
 § 622. 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 cred- 
 itors, 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 con- 
 sequence of his having in his hands that which 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.^ 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.* In this respect there is no distinction between 
 
 IBozman v. Draughan, 3 Slew. 13; Warner v. Blakeman, 4 Abb. 
 
 243; Greer v. Wright, 6 Gratt. 154. App. 530; Thomas v. Goodwin, 12 
 
 ^Murray v. Riggs, 15 Johns. 571; Mass. 140; vide Baker v. Bartol, 6 
 
 s. c. 2 Johns. Ch. 565. Cal. 483. 
 
 sSwiftz/. Holdridge, loOhio, 230; ^Bostwick z/. Beizer, 10 Abb. Pr. 
 
 Stickney v. Crane, 35 Vt. 89; Ray- 197; Collumb v. Read, 24 N. Y. 505; 
 
 ner v. Whicher, 88 Mass. 292; Grover ». Wakeman, 4 Paige, 23, s. 
 
 Wheeler v. Kirtland, 23 N.J. Eq. c. 11 Wend. 187, 25 Am. Dec. 624; 
 
600 
 
 EXTENT OF GRANTEE'S LIABILITY. 
 
 a transfer which is fraudulent in fact and one which is 
 fraudulent in law.^ Unless the commencement of the suit 
 gives notice of the cause of action, the grantee will be 
 protected for payments made before such notice is given.^ 
 
 § 633. 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 parted with it he must account for the Value. 
 Js autem dolo malo emit, bona fide autem ementi vendidit, in 
 solidum pretium rei quod accepit tenehitur? 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.* The proceeds may be followed into 
 any property in which it has been invested so far as it 
 
 Ames V. Blunt, 5 Paige, 13; Strong 
 V. Skinner, 4 Barb. 546; Averill v. 
 Loucks, 5 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 «. 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; Craw- 
 ford V. Kirksey, 55 Ala. 282; vidd 
 Barcroft v. Snodgrass, i Cold. 430. 
 
 lAmes V. Blunt, 5 Paige, 13. 
 
 SWeber v. Samuel, 7 Penn. 499. 
 
 3Dig. Lib. 42, tit, 9. 
 
 <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, i Brock. 500; 
 Bryant v. Young, 21 Ala. 264; Van 
 Winkle v. Smith, 26 Miss. 491; 
 Swinford v. Rogers, 23 Cal. 233; 
 Jones z;. Reeder, 22 Ind. iii; Davis 
 V. Gibbon, 24 Iowa, 257; Ames v. 
 Blunt 5 Paige, 13; Keep v. Sander- 
 
 son, 2 Wis. 42; s. c. 12 Wis. 352 
 Kelly V. Lane, 42 Barb. 594; s. c. 18 
 Abb. Pr. 229; s. u. 28 How. Pr. 128 
 Hawkins v. Allston, 4 Ired. Eq 
 137; McGillw. Harmau, 2 Jones Eq 
 179; Brown v. Godsey, 2 Jones Eq 
 417; Clements v. Moore, 6 Wall 
 299; Alexander v. Todd; i Bond 
 175; Hammond v. Hudson River 
 Co., 20 Barb. 378; Hubbell v. Cur- 
 rier, 92 Mass. 333; Thompson v. 
 Bickford, 19 Minn. 17; Fullerton 'j. 
 Viall, 42 How. Pr. 294; McCrassley 
 V. Hasslock, 4 Baxter, i ; vide Kaupe 
 V. Bridge, 2 Robt. 459. The pro- 
 ceeds can not be reached by an 
 action at law. Lawrence v. Bank, 35 
 N. Y. 320; s. c. 3 Robt. 142; Simp- 
 son V. Simpson, 7 Humph. 275; 
 Tubb p. Williams, 7 Humph. 367; 
 Campbell v. Erie R. R. Co., 46 
 Barb. 540; Childs Z'. Derrick,! Yerg. 
 79; Richards v. Ewing, 11 Humph. 
 327. Contra, Abney v. Kingsland, 
 10 Ala. 355, 44 Am. Dec. 491; Carvill 
 V. Stout, 10 Ala. 796; Lynch v. 
 Welsh, 3 Penn. 294; Heath v. Paige, 
 63 Penn. 280; French v. Breidelman, 
 2 Grant, 319. 
 
EXTENT OF GRANTEE'S LIABILITY. 601 
 
 can be traced.^ The grantee is liable for properly which 
 he has converted to his own use.^ If he sells the property 
 and receives insuflBcient security, the loss falls upon him 
 and not upon the creditors.'* If he impedes the creditors 
 by unnecessary litigation, he will be held to m&ke good 
 all loss which may be occasioned by his unjust interfer- 
 ence.^ When he gives notes as a consideration for the 
 transfer, he furnishes the debtor with facilities for de- 
 frauding his creditors, and will therefore be held liable for 
 the notes that are misapplied.^ If the property has been 
 mixed with other property of the grantee so that the pro- 
 ceeds can not be ascertained, he may be charged with the 
 value and interest thereon.^ 
 
 § ft24. 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 on his owii 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 
 froni 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.'^ 
 
 iClements v. Moore, 5 Wall. 299; ■'Watson v. Kenned)', 3 Strobh. 
 
 McGill V. Harman, 2 Jones Eq. 179- Eq. i. 
 See section 318, ante, and notes. SClements v. Moore, 6 Wall. 299. 
 
 2Van Winkle v. Smith, 26 Miss. «Steere v. Hoagland, 50 111. 377. 
 
 491; How V. Camp, Walk. Ch. 427. 7Lerow v. Wilmarth, 91 Mass. 
 
 SRobinson v. Boyd, 17 Mich. 128; 382; Nipp's Appeal, 75 Penn. 472; 
 
 Tams ZJ. Richards, 26 Penn. 97; Gill- Bernheim «. Beer, 56 Miss. 149. 
 ett V. Bate, 86 N. Y. 87. 
 
602 
 
 EXTENT OF GRANTEE'S LIABILITY. 
 
 § 635. The grantee may be charged with the rents and 
 profits of the lands. This was the Roman law,^ and it is 
 true under our own system of jurisprudence.^ 
 
 i^< fructus non tantum qui per- 
 cepti sunt verum etiam hi qui percipi 
 potueruni a fi'au4atore, veniunt. 
 Partum quoque in Jtanc actionem venire, 
 puto verius esse. Prmterea generaliter 
 sciendum est ex hac actions restitutionem 
 fieri opportere in pristinum statum, 
 sive res fuerunt sive obligationes, ut 
 perinde omnia revocentur ac si liberatio 
 facta non esset. Propter quod etiam 
 medii temporis commodum quod quis 
 consequeretur Hberatione non facta, 
 prwstandum erit dum usurce non pras- 
 tentur si in stipulatum deduatm non 
 fuerunt; ant si talis contractus fuit in 
 quM usurm deheri potuerunt etiam noti 
 deductw. HcBC actio post annum de eo 
 quod ad eum pervenit adversus quem 
 actio movetur, competit; iniquum enim 
 prmtor putavit, in lucro morari eum 
 qui lucrum sensit ex fraude; id circo 
 lucrum ei extorquendum putavit. &ve 
 igitur ipse fraudator sit ad quem per- 
 venit, sive alius quivis, competit actio 
 in id quad ad eicm pervenit, dolove 
 malo ejus factum est quominus per- 
 veniret. Non solum autem ipsam rem 
 alienatam restitui oportet, sedel fructus 
 .-qui alienationis tempore terrm cohcereni, 
 quia in bonis fraudatoris fuerunt. 
 Item COS qui post inchoatum judicium 
 recepti sint. Medio autem tempore 
 perceptos in restitutionem non venire. 
 Fructus autem fundo coluesisse non 
 satis' intelligere se, Labeo ait, utrum 
 duntaxat qui maturi an etiam qui im- 
 maturifuerint, prmtor signiflcet. Qa- 
 terum etiam si de Im senserit qui 
 maturi fwerint, nihilo magis posses- 
 sionem restitui oportere- Nam eum 
 fundus alienaretur, quod ad earn 
 fructusque ejus attineret, unam quan- 
 dam rem fuisse, id est, fundum cujus 
 omnis generis alienationem fructu- 
 sequi. Nee eum qui hyberno tempore 
 
 Imbuerit fundum centum, si sub tempwt 
 messis, vindemimve, fructus ejus ven. 
 dere possit decern, id drco duas res, id 
 est, fundum centum et fructus decem, 
 eum habere intelligendum; sed unam, 
 id est, fundum centum; sicut is quoque 
 unam rem liaberet qui separntim solum 
 ledium vendere possit. 
 
 2"The debtors can uo more give 
 away the rents and profits of their 
 real estate than they can give away 
 the real estate itself; and the grantee 
 has no more right as against these 
 creditors to hold the former than he 
 has to hold the latter. The deed 
 to him being fraudulent and void 
 and having been set aside, he has 
 no title as against the plaintiff to 
 the rents received, by him.. It is no 
 answer to this for the grantee to 
 say that when he received the rents 
 he had the title to the real estate. 
 In taking that title he perpetrated 
 a fraud upon the creditors of the 
 grantors, and received the rents 
 in furtherance of the same fraud. 
 While the deed was valid as between 
 the parties thereto it was not as to 
 creditors, as to them the grantee 
 gained no title to the real estate or 
 to the rents thereof. If the rents 
 had been collected by the debtors 
 and had been found in their hands 
 it is conceded that the creditors, 
 could have reached them, and why 
 may they not reach them in the 
 hands of their fraudulent grantee. 
 If the assignment of a mortgage on 
 land be set aside as a fraud upon 
 creditors cannot the fraudulent 
 assignee be made to account for 
 any payment to him of principal or 
 interest upon the instrument? 
 Suppose the grantee had sold any 
 of the real estate to an innocent 
 
EXTENT OF GRANTEE'S LIABILITY. 
 
 603 
 
 § 626. From what Time Profits are Computed.— It cer- 
 tainly is not consonant with the principles of the law that 
 the grantee should derive any advantage from his fraud. 
 Consequently, he may be compelled to account for the pro- 
 ftts .from the time of the transfer.^ An account may also 
 be taken of what has been received as compensation for 
 the use of the property.^ The grantee should not be 
 charged with the increased rent and profits arising from 
 improvements made by him.'^ 
 
 § 627. The Amount.— "When the grantee has merely re- 
 ceived money on a voluntary bond he is only liable for the 
 amount received.^ If the grantee has merely received a 
 loan, and is innocent of all fraud, he will only be com- 
 pelled to pay the money at the time and in the manner he 
 agreed to pay it to the debtor.^ If the property consists 
 of a policy of insurance on the life of the debtor, the 
 
 purchaser and the price thereof 
 had been paid to him, could he not 
 have been compelled to account 
 for the same? There is no defect 
 in the complaint. The facts alleged 
 are sufficient and the prayer for 
 relief is broad enough to authorize 
 this provision in the judgment. 
 The plaintiffs are judgment credit- 
 ors with executions returned un- 
 satisfied, and hence are in a position 
 to assail in these cases anj' fraudu- 
 lent disposition of their debtor's 
 real or personal property, and to 
 reach either legal or equitable 
 assets of Iheir debtor. There is not 
 only no reason or justice for allow- 
 ing the grantee, upon the facts 
 formed, to retain between jt30,ooo 
 and $40,000 received by him for 
 rents, but there is no aiithority 
 which sustains his contention." 
 Loos V. Wilkinson, no N. Y. 195, i 
 L. R. A. 250, 18 N. E. 99. 
 
 ILoos V. Wilkinson, ixo N. Y. 
 95, I L. R. A. 250, 18 N. E. 99; 
 Strike v. M'Donald, 2 H. & G. 191, 
 s. c. I Bland, 57; Kipp v. Hanna, 2 
 
 Bland, 26; Mead v. Coombs, 19 N. J. 
 Eq. 112; How V. Camp, Walk. Ch. 
 427; Alexander z'. Todd, i-Bond, 175; 
 Marshall v. Croom, 66 Ala. 121; 
 James v. McCleod, 61 Geo. 602; vide 
 Sands v. Codwise, 4 Johns. 536, 4 
 Am. Dec. 305; Robinson v. Stewart, 
 10 N*. Y. 189; Bean v. Smith, 2 
 Mason, 252; Ringgold v. Waggoner, 
 14 Ark. 6g; King v. Wilcox, 11 
 Paige, 589; Blow v. Maynard, 2 
 Leigh, 29; Higgins v. York Build- 
 ing Co., 2 Ark. 107; Croft v. 
 Arthur, 3 Dessau. 223; Backhouse v. 
 Jett, I Brock. 500; Pilaris v. Leach- 
 man, 20 Ala. 662; Brown v. 
 M'Donald, i 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. 
 
 3King V. Wilcox, 11 Paige, 589. 
 See sections 629, 634, post. 
 
 *Hopkirk v. Randolph, 2 Brock. 
 132. 
 
 sWeed v. Pierce, 9 Cow. 722. 
 
604 EXTENT OF GRANTEE'S LIABILITY. . 
 
 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.^ But if the trans- 
 fer of the policy was made while the debtor was solvent, 
 the grantee is liable merely for the premiums paid after 
 he became insolvent.^ 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.-^ 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.* 
 
 § 628. No Indemnity in case of Actual Fraud. — A transfer 
 tainted with actual fraud is absolutely void, although it is 
 founded upon a valuable consideration. Such is the doc- 
 trine at law, and in cases of actual fraud equity fallows 
 the law and gives relief to the full extent to 
 which a court of law would give relief. There is no in- 
 stance of any reimbursement or indemnity afforded by 
 a court of equity to a particeps critnirds in a case of posi- 
 tive fraud. No right can be deduced from a fraudulent 
 act. Every one who engages in a fraudulent scheme for- 
 feits all right to protection either at law or in equity.^ The 
 law does not so far countenance fraudulent contracts as to 
 protect the perpetrator to the extent of his investment. 
 This do(itrine is supported by every principle of morality 
 and justice, as well as by the principles of sound policy. 
 
 iStokes V. Coffey, 8 Bush. 533; cando eo actio datur, eum petant; 
 
 Elliott','; Appeal, 50 Pemi. 75, 88 gucesitum, est an pretium restituere de- 
 
 Ani. Dec. 525, vide Cole v. Marple, beaut? Proculus c.vktimat, omnimodo 
 
 98 111.58. See section 215, ante, restititeiidumessefnndum etiam si pre- 
 
 iiote. tiiiin, non solvatw. Et resoriptwn est 
 
 spullis V. Robison, 5 Mo. Ap. secundum Proc-uU sententiam. Ex his 
 
 549- colKgi potest no quidem portionem emp- 
 
 ^Drurj' V. Cross, 7 W.ill. 299; tori reddendam c.v pretio. Posse tamen 
 
 Wilson V. Hon-, 15 Iowa, 489. dki, earn rem apud arUtrum ex causa 
 
 ^Colburn v. Morton, i Abb. App. animadvertendam ui si nummi soluti 
 
 378. in bonis exstent, jubeat cos reddi; quia 
 
 ^Si debitor in fraudem creditorinn ea rationc nemo fraudetur. Dig., Lib. 
 
 minore pretio fibndum scienti emptori 42, § 14. 
 vendiderit: deinde hi quibus dc revo- 
 
EXTENT OF GRANTEE'S LIABILITY. 605 
 
 No party should be permitted to join in a conspiracy to 
 cheat another with impunity. The law therefore will not 
 permit the transfer to stand as a security for the amount 
 paid to the deb tor ,i or for the sums subsequently paid to 
 creditors,^ even though he thereby pays off a mortgage,^ or 
 a debt contracted in the purchase of the property.^ If the 
 property assigned consists of a contract to erect a building, 
 he cannot claim even what he paid for labor and materials 
 in doing the work.' No allowance can be made to an 
 assignee for his services under a fraudulent assignment,^ or 
 for the sum paid to counsel after the lien of the creditors 
 had attached.^ 
 
 § 629. No Set-oft". — If the grantee is also a creditor, he can 
 not set off his debt against the demand upon him for the 
 property. As the transfer is void his title fails. He is 
 deemed to have come by the property wrongfully, and to 
 permit him to hold it by setting off his own debt against 
 it would be giving effect to the transfer condemned by the 
 law. It can not be done without a sacrifice of the princi- 
 ple. The doctrine of set-off is founded in natural justice, 
 and never is applied to a case where a party comes by 
 
 IM'Keez/. Gilchrist, 3 Watts, 230; ject see sections 26$, 4&6, anie, and 
 
 Stovall V. Farmers' Bank, 16 Miss. notes. See also sections 631 and 
 
 305, 47 Am. Dec. 85; Holland v. 6^4, post. 
 
 Cruft, 37 Mass. 321; Sands v. Cod- ^williamsonz'. Goodwyn, 9 Gratt. 
 wise, 4 Jolins. 536, 4 Am. Dec. 305; 503; Wood v. Hunt, 38 Barb. 302; 
 How V. Camp, Walk. Ch. 427; Petti- Borland z/. Walker, 7 Ala. 269; Bean 
 bone z;. Stevens, 15 Conn. 19; Moorer v. Smith, 2 Mason, 252; Allen v. 
 , V. Tarlton, 3 Ala. 444; Marriott v. Berry, 5o,Mo. 90. 
 Givens, 8 Ala. 694; Goodwin v.' 3pettus z*. Smith, 4 Rich. Eq. 197; 
 Hammond, 13 Cal. 168; Bibb v. Wiley z*. Knight, 27 Ala. 336; Rail- 
 Baker, 17 B. Mon. 292; Bleakley's road Co. v. Soutter, 13 Wall. 517; 
 Appeal, 66 Penn. 187; Miller z/. Tol- Thompson v. Bickford, 19 Minn. 17; 
 leson, Harp. Ch. 145, 14 Am. Dec. in re P.eter Mead, 19 N. B. R. 81. 
 712; Brooks V. Caughran, 3 Head. ^Sale z*. McLean, 29 Ark. 612. 
 464; Allen V. Berry, 50 Mo. 90; Pot- "Chapman v. Ransom, 44 Iowa, 
 ter z/.Stevens, 40 Mo. 229. 377. 
 
 Many of the above cases are re- ^Hastings v. Spencer, i Curt. 504; 
 
 viewed and this section is com- Brown v. Warren, 43 N. H. 430; 
 
 mented on in Loos v. Wilkinson, vide Bishop v. Catlin, 28 Vt. 71. 
 
 113 N. Y. 485, 21 N. E. 392, 4 L. R. 'Hastings v. Spencer, I Curt. 
 
 A. 353. For later cases on this sub- 504. 
 
606 EXTENT OF GRANTEE'S LIABILITY. 
 
 property wrongfully. He can no more be allowed his set- 
 off against property acquired by a fraudulent deed than if • 
 he had acquired it tortiously.^ In this respect it makes no 
 difference whether the property remains in specie or has 
 been converted into money,^ or whether there is actual 
 fraud, or the transfer is void on account of some provision 
 contained in the deed.''' In n-either 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 of property placed in his hands 
 to sell as an auctioneer.'' 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.^ This is on 
 account of his innocence, for no fraud either actual or con- 
 structive can be imputed to him, and in such a case his 
 equity is equal to that of the other creditors. 
 
 § 630. 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.*' A 
 
 iMurray v. Riggs, 15 Johns. 571; ^Xhompson z'. Bickford, 19 Minn, 
 
 s. c. 2 Johns. Ch. 565; Harris v. 17; Murray v. Riggs, 15 Johns. 571; 
 
 Sumner, 19 Mass. 129; Burtus v. s. c. 2 Johns. Ch. 565; M'Kee z'. Gil- 
 
 Tisdall, 4 Barb. 571; Bean v. Smith, Christ, 4 Watts, 230; Burtus v. Tis- 
 
 2 Mason, 252; M'Kee v. Gilchrist, 3 dall, 4 Barb. 571; Fryer v. Bryan, 2 
 
 Watts, 230; Wright v. Hancock, 3 Hill Ch. 56. Contra, Tubb r. Wil- 
 
 Munf. 521; Thompson v. Drake, 3 lianis, 7 Hump. 367; Peacock z'. 
 
 B. Mon. 565; Wilson z'. Horr, 15' Tompkins, Meigs, 317; Peters z'. 
 
 Iowa, 489; Price v. Masterson, 35 Cunningham, 10 Md. 554. 
 Ala. 483; Foster v. Grigsby, i Busli, SMurray v. Riggs, 15 Johns. 571; 
 
 86; Armstrong zj. Tuttle, 34 Mo. s. c. 2 Johns. Ch. 565; Hone v. 
 
 432; Miller ZJ. ToUeson, Harp. Ch. Heinriquez, 13 Wend. 240; s. c. 2 
 
 145, 14 Am. Dec. 712; Fryer v. Edw. 120; Harris v. Sumner, 19 
 
 Bryan, 2 Hill Ch. 56; Wfiile v. Mass. 129. Contra, Peters z: Cun- 
 
 Graves, 7 J. J. Marsh. 523; Garl.iiid ninghani, 10 Md. 554; Peacock v. 
 
 V. Rives, 4 Rand. 282, 15 Am. Dec. Tompkins, Meigs, 317. 
 756; Thompson v. Bickford, 19 ^Hone v. Henrique?, 13 Wend. 
 
 Minn. 17; Salomon v. Moral, 53 240; h. c. ^ Edw. 120, 27 Am. Dec. 
 
 How. Pr. 342; Thompson v. Fennel, 204. 
 
 67 Me. 159; Hubbard v. Allen, 59 SQliver v. Moore, 23 Ohio St. 
 
 Ala. 283; Smith V. Craft, 12 Fed. 473, 
 
 Rep. 856; vide, Goddard v. Hapgood, eCleveland v. R. R. Co., 7 A. L. 
 
 25 Vt. 351, 60 Am. Dec. 272; Bishop Reg. 536; Bunn z\ Ahl, 29 Penn. 
 
 V. Catlin, 28 Vt. 71; Brown v. War- 387. 
 ten, 43 N. H. 430. 
 
EXTENT OF GRANTEE'S LIABILITY. 
 
 607 
 
 fraadulent 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.^ 
 
 § 631. Indemnity in (Jase 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,^ or to pay off incumbrances,** or to pay the grant- 
 or's d'ebts.^ This is especially true when a conveyance is 
 set aside in equity on the ground that it is partially volun- 
 tary,^ 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 alto'gether." An innocent grantee is 
 entitled to indemnity for advances made by Mm to the 
 debtor even after the recovery of a judgment against the 
 grantor which was a lien on the property, for the lien did 
 
 iRobinson c. Stewart, lo N. Y. 
 189; Dickinson v. Way, 3 Rich. Eq. 
 412; Murray z'. Riggs, 15 Johns. 571; 
 s. c. 2 Johns. Ch. 565; Johnston v. 
 Bank, 3 Strobh. Eq. 263; Yoder v. 
 Standiford, 7 Mon. 478. 
 
 SAlley r. Connell, 3 Head. 578; 
 Wood V. Go£f, 7 Bush, 59; Dohoney 
 V. Dohoney, 7 Bush, 217; M'Meekin 
 v. Edmonds, i Hill Ch. 288; Hersch- 
 fel'dt V. George, 6 Mich. 456; Tripp 
 z'. Vincent, 8 Paige, 176; Neuffer z>. 
 Pardue, 3 Sneed, 191; Weeden r. 
 Hawes, 13 Conn. 50; Sanford v. 
 Wheeler, 13 Conn. 165; Short v. 
 Tinsley, i Met. (Ky.) 397; Scouton 
 z'. Bender, 3 How. Pr. 185; Anderson 
 V. Fuller, i McMuUan Ch. 27; 
 Clements z'. Moore, 6 Wall. 299; 
 Drury z'. Cross, 7 Wall. 299; 
 Brown v. McDonald, i Hill Ch. 297; 
 Parker v. Holmes, 2 Hill Ch. 93; 
 Turbeville v. Gibson, 8 Heisk. .565. 
 This section should be read with 
 
 sections 628, 486 and 265, anie, and 
 section 634, post 
 
 3Potter V. Gracie, 58 Ala. 303. 
 
 iPond V. Corastock, 27 N. Y. 
 Supr. 492. 
 
 ^College z'. Powell, 12 Gratt. 372; 
 Worthington v. Bullitt, 6 Md. 172, 
 b. c. 3 Md. Ch. 99; Crumbaugh v. 
 Kugler, 2 Ohio St 373; Herschfeldt 
 zi. George, 6 Mich. 456; Church 
 z'. Chapin, 35 Vt. 223; Corlett v. 
 Radcliffe, 14 Moore P. C. 121; Spald- 
 ing z'. Norman, 51 N. Y. 672; First 
 Nat'l Bank v. Birtschy, 52 Wis. 438, 
 9 N. W. 534. 
 
 ^Boyd v. Dunlap, i Johns. Ch. 
 478; Bigelow V. Ayrault, 46 Barb. 
 143; Heme z'. Meeres, i Vern. 465, 
 s. u. 2 Bro. C. C 177, n.; Clements 
 V. Moore, 6 Wall. 299; Bean z'. 
 Smith, 2 Mason, 252; Doughten v. 
 Gray, 10 N. J. Eq. 323; Glass r'. 
 Farmer, 10 Heisk. 551; Tompkins v. 
 Sprout, 55 Cal. 31; Rpche zr. Has- 
 sard, 5 Ir. Ch. 14. 
 
608 EXTENT OP GRANTEE'S LIABILITY. 
 
 not divest tlie title.^ 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 substi- 
 tuted to the rights of the vendor, whose title he took.^ 
 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.^ 
 If the grantee held the possession of the property, the rents 
 and profits will be deemed equivalent to the interest on 
 his money,* or deducted from the amount to be refunded 
 to him.^ An innocent grantee may also be allowed a com- 
 pensation for his services.** An innocent purchaser who 
 contracts to pay the value of the property in the support of 
 the grantor is entitled to indemnity for disbursements made 
 before the deed is impeached.''' 
 
 § 632. Partner. — A partner who accepts a fraudulent 
 transfer of the partnership property from his copartner 
 may be remitted to his lien as a partner, and thus secured 
 in all his real advances for the firm.® 
 
 § 633. 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." 
 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- 
 
 iHenderson v. Hunton, 26 Gratt. "Brown v. M'Donald, i Hill Ch. 
 
 926. 297; Gardiner Bank v. Wheaton, 8 
 
 2Gardiner Bank v. Wheaton, 8 Me. 373. 
 Me. 373; Ogle V. Lichleberger, i. A. ^Henderson v. Hunton, 26 Gratt. 
 
 L. Reg. 121; Ford v. Johnson, 14 N. 926. 
 Y. Supr. 563. SThompson v. Drake, 3 B. Mon. 
 
 3Highland v. Highland, 5 W. Va. 565. 
 ^3- SBlanton v. Taylor, Gilmer, 209; 
 
 ^Brown v. M'Donald, i Hill Ch. Quarles v. Lacy, 4 Munf. 251; Col- 
 
 297- lege V. Powell, 12 Gratt. 372; Taylor 
 
 BGardiner Bank v. Wheaton, 8 v. Moore, 2 Rand, 563; Ward v. 
 
 Me. 373- Crotty, 4 Met. (Ky.) 59. 
 
BXTBITT OF GRANTEE'S LIABILITY. 
 
 609 
 
 sumption is that she spent it at the dictation of her hus- 
 band.i ' 
 
 § 634. Expenditures. — When the transfer is tainted with 
 actual fraud, no allowance can be made for improvements. 
 It would seem, however, to be just and reasonable to allow 
 expenditures as an offset to rents and profits,^ especially 
 
 iPhipps V. Sedgwick, 95 U. S. 3, 
 s. c. 12 Blatch. 163, s. c. 5 Ben. 184, 
 s. c. 5 N. B. R. 168, s. c. 10 N. B. R. 
 28. 
 
 2In Sands v. Codwise, 4 Johns. 
 536, 4 Am. Dec. 305, while the 
 fraudulent grantees were compelled 
 to account for the rents and profits 
 of the lands, it was ordered that 
 they should be allowed credit for 
 taxes, repairs and improvements 
 permanently useful. 
 
 In Jackson !>. Ludeling, 99 U.S. 
 513 (a Louisiana case arising under 
 the civil law), Mr. Justice Bradley 
 said: "Equity in cases within its 
 jurisdiction, allows the possessor in 
 good faith both for repairs and im- 
 provements; but, where the pos- 
 sessor (being a trustee) has been 
 guilty of actual fraud, it makes him 
 no allowance for improvements but 
 allows him compensation for neces- 
 sary repairs." 
 
 In Van Home v. Fonda, 5 Johns. 
 Ch. 388, Chancellor Kent allowed 
 the defendant, who had actively 
 participated in the fraud, credit for 
 expenditures and actual repairs, 
 but denied him any allowance for 
 beneficial improvements. 
 
 In King v. Wilcox, 11 Paige 589, 
 a fraudulent grantee was allowed 
 credit for improvements, and also 
 for that portion of the rents and 
 profits which had arisen from his 
 improvements. 
 
 "It is true that a fraudulent grant 
 to a grantee who is a guilty partici- 
 pant in the fraud, must, as to the 
 ere liiors of the grantur, be treated 
 
 as void ab initio. But the only way 
 the creditors can reach the rents 
 and profits received by the grantee 
 is by an accounting in equity. And 
 what does such an accounting 
 mean? Does it mean that he shall 
 pay for more rent than he has re- 
 ceived or could have received, for 
 more profits than he has made or 
 could have made? If the grant be 
 of a waste piece of land which the 
 grantee has improved so as to make 
 rent possible, shall he account for 
 gross rents without any allowance 
 
 for his improvements? To 
 
 answer these queries in the affirma- 
 tive would, even in a court of 
 equity, be a wide departure from 
 the rule of compensation. While 
 a fraudulent grantee will not be 
 allowed for permanent improve- 
 ments made upon the granted 
 property to suit his fancy, when 
 the creditors of the grantor come 
 into a court of equity seeking to 
 compel him to account for rents 
 and profits the accounting must be 
 on equitable principle^." Loos v. 
 Wilkinson, 113 N. Y. 485, 4 L. R. A. 
 353, 21 N. E. 392. 
 
 See also Strike v. M'Donald, 2 
 H. & G. 191, s. c. I Bland, 57; High 
 V. Nelms, 14 Ala. 350; Auble v. 
 Mason, 35 Penn. 261; in re Peter 
 Mead, 19 N. B. R. 81; vide How v.. 
 Camp, Walk. Ch. 427; Croft v. Ar- 
 thur, 3 Dessau. 223; Rucker v. 
 Abell, 8 B. Hon. 566; Byers v. Fow- 
 ler, 12 Ark. 218. And see sections 
 631, 629, 628, 486 and 265, ante, and 
 notes and cases cited. 
 
610 EXTENT OF GRANTEE'S LIABILITY. 
 
 when they have been made to pay taxes.^ Sed cum aliquo 
 modo, scilicet ut sumptus facti deducantur; nam arbitrio ju- 
 dicis non prius cogendus est rem restituere quam si impensas 
 necessarias consequatur. Idemque erit probandum et si 
 quis alius sumptus ex voluntate fidejussorum creditorumque 
 fecerit? A donee who has taken possession and made im- 
 provements under a parol promise of a gift is entitled to 
 compensation for the improvements.^ An assignee 
 claiming under a voluntary assignment which is fraudulent 
 only by construction of law, is allowed all his necessary ex- 
 penses and disbursements in collecting the debts or con- 
 verting the property into money,* or paying off prior liens.^ 
 
 § 635. Apportionment. — The whole amount in the hands 
 of the grantee may be appropriated to the payment of the 
 debts, although there maybe other persons equally liable,^ 
 for the creditor is not bound to apportion his debt among 
 the various grantees. But where all the grantees are con- 
 vened, and all the materials for an apportionment are before 
 the court the demand will be apportioned among the 
 responsible parties, if it can be done without any material 
 delay or injury to the creditor. This will be done, how- 
 ever, with a reservation of the right to the creditor to 
 resort for satisfaction to all the parties responsible to him 
 to the full extent of their liabilities respectively 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.^ 
 
 § 636. Exempt Property.— If the propertyis exempt abso- 
 lutely and unconditionally from execution, the grantee may 
 
 IHow V. Camp, Walk. Ch. 427; SColburn z/. Morton, i Abb. App. 
 
 Kingz'. Wilcox, II Paige, 589; Wrf^ 378. 
 
 Strike v. M'Donald, 2 H. &. G. 191; "Hopkirk v. Randolph, 2 Brock. 
 
 s. i;. I Bland, 57. 132; Van Wyck v. Seward, 18 Wend. 
 
 '^T>ig. Lib. 42, tit. 9, § 20. 375; s. c. 6 Paige, 62; s. c. i Edw. 
 
 3Ruckerz'. Abell, 8B. Mou. 566. 327. 
 
 ^Strong V. Skinner, i Barb. 546; 'Chamberlayne v. Temple, 2 
 
 Bishop V. Catlin, 28 Vt. 71; Brown Rand. 384, 14 Am. Dec. 786; Brice v. 
 
 V. Warren, 43 N. H. 430; Theras.son Myers, 5 Ohio 121; Cornish <y. Clark, 
 V. Hickok, 37 Vt. 454; Colburn v. . L. R. 14 Rq. 184. 
 Morton, i Abb. App. 378. 
 
EXTENT OF GRANTEE'S LIABILITY. 611 
 
 retain it, for a fraudulent conyeyance does not enlarge 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. Conse- 
 quently, they must sell it subject to the right to an exemp- 
 tion which the grantee may claim.^ He has all the powers 
 of an owner to defend his property. He may defend his 
 possession against a purchaser under an execution,^ or insti- 
 tute 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,^ or maintain an action of trover^ or tres- 
 pass® against them for the seizure. If the property, how- 
 ever, is exempt only conditionally while the debtor owns it, 
 the right to the exemption ceases with the conveyance, and 
 the grantee cannot claim it.^ If the exemption is only 
 allowed upon the claim of the debtor, the grantee can not 
 claim it.^ If the property is exempt only during the life- 
 time of the debtor, the grantee can not claim the exemp- 
 tion after the debtor's death.® 
 
 § 637. Dower.^:-If the conveyance is set aside the grantee 
 can not retain the dower interest of the grantor's wife.^" 
 
 § 638. Surplus. — The surplus which may remain after the 
 payment of the debt and costs belongs to the grantee.^^ If 
 
 IDanforth z/. Beattie, 43 Vt. 138; 2Wood z/. Chambers, 20 Tex. 247. 
 
 Kuevan v. Specker, 11 Bush, i; 3Bond f. Seymour, I Chand. 40; 
 
 Castle V. Palmer, 88 Mass. 401; Mar- s. c. 2 Pinney, 105. 
 
 tel z/. Somers, 26 Tex. 551; You- ^Smith z^. Allen, 39 Miss. 469. 
 
 mans v. Boomhower, 3 T. &. C. 21; ^Foster v. McGregor, 11 Vt. 595. 
 
 Whiting V. Barrett, 7 Lans. 106, SAnthony v. Wade, i Bush. no. 
 
 Lichy V. Ferry, 6 Bush. 315; Crum- 7Piper v. Johnston, 12 Minn. 60; 
 
 men v. Bennett, 68 N. C. 494; Hib- Chambers v. Sallie, 29 Ark. 407. 
 
 ben z/. Soyer, 23 Wis. 319; Chris- ^Getzler v. Saroni, 18 111, 511; 
 
 man v. Roberts, 68 Penn. 308; Ray- Herschfeldt v. George, 6 Mich. 456; 
 
 ner v. Whicher, 88 Mass. 292; Pen- Edmondson v. Hyde, 7 N. B. R. i; 
 
 nington v. Seal, 49 Miss. 518; Keat- s. c. 2 Saw. 205. 
 
 ing V. Keefer, 5 N. B. R. 133; s. c. 4 SFellows v. Lewis, 65 Ala. 343. 
 
 A. L. T. 162; Leupold v. Krause, iot,ockett v. James, 8 Bush. i8. 
 
 95 111. 440; Kehr z/. Smith, 7 N. B. HWood z/. Hunt, 38 Barb. 302; 
 
 R. 97; s. c. 10 N. B. R. 49; s. c. 2 Burtch v. Elliott, 3 Ind. 99; King v. 
 
 Dill, 50; s. c. 20 Wall. 31. See sec- Tharp, 26 Iowa, 283; Allen v. 
 
 tions 130, 220 and 479, ante. Trustees, 102 Mass. 262; Freeman v. 
 
612 CASES AND STATUTES. 
 
 the conveyance is voluntary the donee is entitled to an as- 
 signment of the creditor's claim upon paying the amount 
 thereof.^ 
 
 CHAPTER XXV. 
 
 CASES AND STATUTES. 
 
 § 639. Cases From the Year Books.— En brief e 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 I'admistrac' des aut's 
 biens, etc., judgem't si ace'. Trem. mesme eel done fuit 
 fait y fraude et coUuss' pur ouster no' et aut's as queux il 
 fuit 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. ^? En un bill de trespass dun chival et iiij. 
 vach a tort prises, etc., port vers T. de W. et R. de N. Les 
 queux plede de rien culp: trove fuity Enquest, que le dit R. 
 avoit rec' vers J. B. rrs, en 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 
 onstr' ils dis. que mesms les bestes fur' les bestes le dit J. 
 
 Burnham, 36 Conn. 469; Norton v. erty, by a deed of which the^ make 
 
 Norton, 59 Mass. 524; Bostwick v. profert without their having the 
 
 Menck, 40 N. Y. 383; Pratt v. Cox, administration of the other prop- 
 
 22 Gratt. 330; Orr v. Gilmore, 7 Ivans, erty. Judgment si actio. 
 
 34S; Todd v. Neal, 49 Ala. 266; Trem. This same gift was made 
 
 Ford V. Johnston, 14 N. Y. Supr. fraudulently and collusively to 
 
 563; Van Wyck v. Baker, 17 N. Y. oust us and others, to whom he was 
 
 Supr. 98; Kerr «. Hutchins, 46 Tex. a debtor, from our action. Ready, 
 
 384; see Section 477, ante, and etc. Wherefore we pray for xmr 
 
 cases cited. debt. 
 
 ICole V. Malcolm, 66 N. Y. 363. Horton says that the gift was 
 
 2ln a writ for debt brought made in good faith without any 
 
 against two executors of J. B., they such, etc. Ready, and so to the 
 
 say by Horton that the said J. B., country, quod nota. 
 in his life, gave them all his prop- 
 
CASES AND STATUTES. 613 
 
 "B. jour de judgment rendu; mes il les dona puis y fait a 
 mesm cesty qui ore se pi' y fraud a delaier I'exec. Bt 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 flst fors gardein des bestes al' oepz I'autre' 
 quia fraus & dolus, &c. Car autrement en aur' jamais 
 bome exec, des chat'; y q' prenes rien y vostre bill. — Li. As. 
 101, /. 72.1 
 
 § 640. Cases From the Year Books— Continued.— Bn le 
 
 chancery un bill fuit abatu pur non suffl'c. del matter, et le 
 pi' dit q' eel bill fuit 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. Bt puis m' cestuy J. B. vient en Bngleterre et p' de- 
 fraudr' son dettor flstun 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' 
 cestuy q' est supp' destre def. al barren, et ala en Lond; et 
 emport m' le bn's ove luy et est seisie et poss. de eux, etc., 
 le quel matter, &e. Et priom' q' il rn'd a eel matter et bill, 
 et il aver copy de ceo et issint agard le court, quod nota, 
 &c.— 16 Edw. IV., folio 9.^ 
 
 lln a bill for trespass for one who received the profits of the 
 
 horse and four cows tortiously beasts in the meantime? They said, 
 
 seized, &c., brought against T. Sir, the donor. 
 
 of W. and R. of N., who plead not Thorpe. I consider the gift nul- 
 
 guilty: it was found by inquest that and void, and hold that he to whom 
 
 the said R. had recovered against such a gift was made became only 
 
 J. B. rrs. in the court of P., on keeper of the beasts for the use of 
 
 authority of which the said T., as the other, because fraud and deceit, 
 
 bailiff, etc., took the. said cows in &c. For otherwise a man would 
 
 execution and delivered them to R. never have execution on chattels; 
 
 and carried them to the castle of P. wherefore take nothing by your 
 
 Furthermore, they say that the said bill. 
 
 beasts were the beasts of the said J. 2in chancery a bill was dismissed 
 
 B. on the day when the judgment as insufficient in substance, and the 
 
 was rendered, but he gave them plaintiff said that the bill was mis- 
 
 afterwards by deed to him who is conceived, but he showed for his 
 
 now plaintiff fraudulently to delay substance that J. B., who was the 
 
 execution. And they were interro- former husband of the defendant, 
 
 gated by the court as to this point: bought of the plaintiff's father, 
 
614 OASES AND STATUTES. 
 
 Scire facias des dam's recouer' le vicont. ret' quele de- 
 fendant au' vend ces chateaux, en fraude de tolt' lexecucion. 
 3 Scroop: home puit bien auer vendu ces chateaux cy bien 
 apres jugement come denuant sauns ceque exec' se fra deux 
 chateaux. — Fitzherbert's Ahdgt., Execution, pi. 108.^ 
 
 3 Det y Belk. si home recouera dam' et 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 Abr., Collusion, pi. 9.^ 
 
 § 641. The Statute of 50 Edw. III. Chapter 6.— Jiem. Because 
 that divers people inherit of divers tenements, borrow- 
 ing 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 Westmin- 
 ster, 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 
 said tenements and chattels, till the said creditors shall be 
 bound to take a small parcel of their debt, and release the 
 remnant; it is ordained and assented, that if it be found 
 that such gifts be so made by collusion, that the said cred- 
 itors shall have execution of the said tenements and chattels 
 as if no such gift had been made. 
 
 whose executor he is at Brig, cer- that he have copy of it, and thus 
 tain property of the value of one the court awarded, quod nota, &c. 
 hundred marks, &c. And after- '^Scire facias for damages re- 
 wards the same J. B. came to Eng- covered. The sherifi returns that 
 land, and to defraud his creditors the defendant had fraudulently sold 
 made a gift of his property to a cer- the chattels to prevent execution, 
 tain person, &c., but he continued Scroop. These chattels might 
 his possession and took refuge at very well have been sold as well 
 Westminster and died, and his after judgment as before, provided 
 property continued in the posses- that execution on the chattels had 
 sion of his wife, &c., and afterwards not already issued. 
 . she married the person who is sup- 2Debt by Belk. If a man recover 
 posed to be defendant, and went to damages, and the defendant alien- 
 Ivondon and took the said property ate his goods fraudulently, the 
 with her, and is seized and pos- issue may be taken on that, and, 
 sessed of it, &c., which substance, if it be found, the plaintifi can have 
 &c. And we pray that he make execution on the goods fraudulently 
 answer to this matter and bill, and alienated; quod non negat. 
 
OASES AND STATUTES. 615 
 
 § 643. The Statute of 3 H VII. Chapter L—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, en- 
 acted and established 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. 
 
 § 643. The Statute of 13 Elizabeth, Chapter 5.— i^or the 
 avoiding and abolishing of feigned, covinous and fraudu- 
 lent feoffments, gifts, grants, ajienations, 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 heretofore; which feoffments, gifts, grants, aliena- 
 tions, 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 creditors and others of their just 
 and lawful actions, suits, debts, accounts, damages, penal- 
 ties, 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 
 feoffment, gift, grant, alienation, bargain and conveyance of 
 lands, tenements, hereditaments, goods and chattels, or any 
 of them, or of any lease, rent, common or other profit or 
 charge out of the same lands, tenements, hereditaments, 
 goods and chattels, or any of them, by writing or other- 
 
616 CASES AND STATUTES. 
 
 wisej and all and every bond, suit, judgment and execu- 
 tion, at any time had or made sithence the beginning of the 
 Queen's Majesty's reign that now is, or at any time here- 
 after to be had or made, to or for any intent or purpose be- 
 fore declared and expressed, shall be from henceforth 
 deemed and taken (only as against that person or persons, 
 his or th,eir heirs, successors, executors, administrators and 
 assigns, and every of them, whose actions, suits, debts, ac- 
 counts, damages, penalties, forfeitures, heriots, mortuaries 
 and reliefs, by such guileful, covinous or fraudulent devi- 
 «es and practices as is aforesaid, are, shall or might be in 
 any wise 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. 
 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, 
 conveyance, bonds, suits, judgments, executions, and other 
 things before expressed, and being privy and knowing of 
 the same, or any of them, which at any time, after the 
 tenth day of June next coming, shall wittingly and will- 
 ingly pu.t 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 a 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 forfeiture of one year's value of the said lands, tene- 
 ments, 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, judgment, exe- 
 cutions, leases, rents, commons, profits, charges, and other 
 
CASES AND STATUTES. 617 
 
 tMngs aforesaid, to be recovered in any of the Queen's 
 Courts of Record, by action of debt, bill, plaint, or informa- 
 tion, wherein no essoign, protection, or wager of law shall 
 be admitted for the defendant defendants; and also being 
 thereof lawfully convicted, shall suffer imprisonment for 
 one half year without bail or mainprise. 
 
 IV. Provided also, and it be enacted by the authority 
 aforesaid, that this act, or anything therein contained, shall 
 not extend to any estate or interest in lands, tenements, 
 hereditaments, leases, rents, commoifs, profits, goods, or 
 chattels, had, made, conveyed or assured, or hereafter 
 to be had, made, conveyed, or assured; which estate or 
 interest is, or shall be upon good consideration, and bona 
 fide lawfully conveyed or assured to any person or persons, 
 or bodies 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 is 
 aforesaid; anything before mentioned to the contrary here- 
 of notwithstanding. 
 
 VII. This Act to endure unto the end of the first session 
 of the next Parliament.^ 
 
 iThis act was made perpetual by been re-enacted in some form in 
 29 Elizabeth, chapter 5. It has every state. 
 
INDEX. 
 
 [rbfbrences are to sections.] 
 
 ABSCONDING debtor, whetlier judgment necessary, 549. 
 ABSENCE OF EVIDENCE is a badge of fraud, 65. 
 ACCEPTANCE OF ASSIGNEE for the benefit of creditors is 
 necessary, 324. 
 
 will be presumed, 324. 
 
 what constitutes, 324. 
 ACCEPTANCE OF PROCEEDS estops creditor, 458. 
 ACCIDENT OR MISTAKE not fraudulent, 31, 243, 262, 340, 
 
 442. 
 ACCOUNT for proceeds, 623. 
 
 for money on insurance policy, 215, note, 624. 
 
 for rents, 625. 
 
 for profits, 625. 
 
 for rents and profits from improvements, 634, note, 626. 
 
 for money on a voluntary bond, 627. 
 
 for money loaned, 627. 
 
 for interest, 627. 
 
 no deduction for consideration, 628. 
 
 no compensation for services, 628. 
 
 debt cannot be set off, 629. 
 
 deduction in case of constructive fraud, 631. 
 
 by partner, 632. 
 
 hyfeme covert, 633. 
 
 for improvements, 634. 
 
 apportionment, 635. 
 
 retention of surplus, 636. 
 ACCOUNTS of grantor are evidence to prove debt, 584. 
 ACTION AT I^AW, none in assumpsit, 527. 
 
 none in case, 528. 
 
 to try fraud, 530. 
 
 concurrent with equity, 531. 
 
620 INDEX. 
 
 [references are to sections.] 
 
 ACTION AT l^KW .—Continued. 
 
 creditor may select forum, 531. 
 
 issues in, 531. 
 
 fraudulent grantee may enforce rights by, 446. 
 ACTUAI. CHANGE OF POSSESSION, when necessary, no, 
 123. 
 
 defined, no, 123, 133. 
 
 when change is impossible, 151. 
 
 of ponderous airticles, 151, 152, 153. 
 ACQUIESCENCE, creditor not bound by, 456. 
 
 creditor bound by ratification, 455. 
 ADMINISTRATOR, conveyance binding on, 433. 
 
 may sometimes set aside transfer, 433, note. 
 
 cannot reconvey, 482. . 
 
 remedy against, 549. 
 
 judgment against, is not evidence against grantee, 585. 
 ADVANCES, future, constitute good consideration, 210, 605. 
 
 agreement for, renders assignment void, 377. 
 
 mortgages for, 210. 
 
 judgments for, 210. 
 
 by debtor to purchase at a public sale, 236. 
 
 by wife to husband, as consideration, 286, notes. 
 ADVERTISEMENT of sale, effect of insufficient, 237. 
 ADVICE of attorney admissible, 602. 
 
 of debtor in the management of assignment, 358. 
 AGENT, notice to vendee's, 186. 
 
 husband as wife's, 224. 
 
 notice to purchaser's, 494. 
 
 conveyance binding on debtor's, 433. 
 
 power to sell as agent, 192, note, 194, 212. 
 
 agent's purchase in the name of his principal, 212. 
 AGREEMENT ANTE-NUPTIAI,, see ANTE-NUPTIAL 
 
 AGREEMENTS. 
 AGREEMENT TO REOONVEY, no suit on, 434. 
 
 not enforceable in equity, 435. 
 
 when relief granted, 436, 437, 438. 
 
 between two grantees, 443. 
 
 grantee cannot enforce, 454. 
 
 to confirm fraudulent conveyance, 456, 457. 
 AGREEMENT. 
 
INDEX. 621 
 
 [rkfbrsnces are to sections.] 
 
 AGREEMENT TO RELEASE DOWER not valuable consid. 
 
 eration, 285. 
 ALABAMA, doctrine of, as to possession, 109, note, 
 
 as to jus disponendi, 116, note. 
 
 as to evidence of intent, 618, note. 
 ALIMONY, claim for, good consideration, 278. 
 
 deed of separation, when valid, 278. 
 
 claim for, within the statute, 504, 
 ALTERATION of assignments, 314, 315. 
 
 parties to an alteration, 315. 
 
 mode of, 316. 
 
 cannot destroy valid lien, 315. 
 ANCESTOR'S DEBTS, protected by the statute, 433. 
 ANCIENT LAWS, severity of, 3. 
 
 of debtor and creditor, 3. 
 ANGLICAN LAW, origin of, 8. 
 ANNUITY as a consideration, 204. 
 ANTECEDENT AGREEMENT to prefer, 174, note. 
 ANTECEDENT DEBTS, good consideration, 164, 204. 
 ANTE NUPTIAL AGREEMENTS, settlement in pursuance 
 of valid, 146. 
 
 settlement must conform to articles, 275. 
 
 parol void, 276. 
 
 parol not validated by marriage, 276. 
 
 parol not validated by representations, 276. 
 
 equity will sometimes enforce parol, 276, note. 
 ANTE NUPTIAL SETTLEMENTS, when valid, 266. 
 
 both parties must be guilty of fraud to invalidate, 266. 
 
 must relate to specific marriage, 267. 
 
 contemporaneous, 268. ' 
 
 what must contain, 269. 
 
 to whom extends, 270, note. 
 
 mere indebtedness does not vitiate, 271. 
 
 participation of wife in fraud, 272. 
 
 how far marriage is a valuable consideration, 266, 273. 
 ANSWER cannot be amended, 565. 
 
 supplemental, 565. 
 
 what may be stated in supplemental, 565. 
 
 of purchaser must deny notice, 564. 
 
 evidence of defendant, 567. 
 
622 INDEX. 
 
 [reberbnces are to suctions.] 
 
 ANSWER. — Continued. 
 
 wlien responsive, 567. 
 
 denial not conclusive, 568. 
 
 overcome by two Witnesses, 568. 
 
 want of particularity, 568. 
 
 should be direct and specific, 568. 
 
 taken to be true when cause heard on, 568. 
 
 should set up statute of limitations, 570. 
 APPOINTMENTS — See Power of Appointment. 
 APPORTIONMENT, creditor need not make, 635. 
 
 when all parties are before court, 635. 
 
 of loss from depreciation of property, 576. 
 ARIZONA, doctrine of as to possession, 109, note. 
 ARKANSAS, doctrine of as to possession, 109, note. 
 ASSENT of creditors to an assignment is presumed, 308. 
 , what constitutes, 308, note. 
 
 express is retroactive, 308. 
 
 effect of renunciation by one creditor, 308. 
 
 when not presumed, 308. 
 
 excluded by express requirements, 308, note, 309. 
 
 no presumption of, where there are creditors, 309, 310. 
 
 no presumption of as to fraudulent assignment, 310. 
 
 to deed by solvent debtor, 310. 
 ASSETS, property fraudulently conveyed is, 523. 
 ASSIGNEE, effect of abuse of trust by, 336. 
 
 responsibility of, 403. 
 
 compensation of, 406. 
 
 of fraudulent mortgage may foreclose, 446. 
 
 ratification by, by accepting money, 458. 
 
 may sell subject to transfer, 473. 
 
 may sell right to assail transfer, 473. 
 
 when tenant attorns to, 474. 
 
 in bankruptcy has rights of creditors, 553. 
 
 has sole right to sue, 553. 
 
 may join with creditors, 553. 
 
 upon refusal of creditors may sue, 553. 
 
 of debt may unite with assignor, 555. 
 ASSIGNEE FOR THE BENEFIT OF CREDITORS, must 
 be designated in the deed, 322. 
 
 is not purchaser for value of negotiable paper, 318, note. 
 
INDEX. 623 
 
 [rbferencbs are to sections.] 
 
 ASSIGNEE FOR THE BENEFIT OF CREDITORS— C<?w. 
 
 assignment must be delivered to, 323. 
 
 must accept, 324. 
 
 presumption of acceptance, 324. 
 
 need not sign, 324. 
 
 acceptance implied from acts, 324. 
 
 can not accept in part, 324. 
 
 effect of rejection by one, 324. 
 
 is representative of creditors, 326, note. 
 
 purchaser for value, 337. 
 
 notice to, of fraud, 337, 
 
 participation in fraud vitiates assignment, 337. 
 
 may be a creditor, 353. 
 
 may be a joint debtor, 353. 
 
 may be a relative, 353. 
 
 when not a partner, 353. 
 
 president of a corporation, 353. 
 
 vacancies may be filled, 353. 
 
 debtor can not remove, 353. 
 
 qualifications of, 354. 
 
 must be a proper person, 354. 
 
 non-resident, 354. 
 
 blind, 354. 
 
 ignorant, 354. 
 
 insolvent, 354. 
 
 may employ debtor, 357. 
 
 can not declare uses subsequently, 362. 
 
 can not permit concealment of assets, 380, 
 
 is bound by creditors' confirmation, 467. 
 
 when representative of debtor, 483. 
 
 cannot file bill, 554. 
 ASSIGNMENT OF WENS, effect of, 232. 
 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 
 modern device, 302. 
 
 differ from deed of composition, 302. 
 
 differ from deed of trust in nature of mortgage, 303. 
 
 differ from deed of trust by solvent debtor, 304, 310. 
 
 why called voluntary, 305. 
 
 distinction between general and partial, 305. 
 
 essential elements of, 305. 
 
624 INDEX. 
 
 [rbferences are to sections.] 
 
 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS.— 
 Continued. 
 creditors need not be parties, 306. 
 nominal consideration sufficient, 307. 
 debts are the real consideration, 307. 
 assent of creditors presumed, 308. 
 assent is retroactive, 308. 
 limitation of implied assent, 308. 
 what constitutes assent, 308, note, 
 express requirement excludes implied assent, 309. 
 no presumption of assent where there are conditions, 
 
 309. 310- 
 no presumption of assent to fraudulent assignment, 310. 
 creditors may reject, 311. 
 
 the refusal of one creditor does not vitiate, 312. 
 when assent of all required, 312. 
 when levy equivalent to revocation, 312. 
 irrevocable, 313. 
 when revocable, 313. 
 fraudulent, may be altered, 314. 
 debtor alone cannot change, 315. 
 mode of alteration, 316. 
 one void deed not helped by another, 316. 
 deed of revocation under power, 316. 
 fraudulent, must be abandoned, 316. 
 form of, 317. 
 
 when seal not required, 317. 
 may consist of three parts, 317, note, 
 bipartite assignments, 317, note, 
 may be by parol, 317. 
 by partnership, 317. 
 property assignable, 318. 
 corporate franchises, 318. 
 trade mark, 318. 
 choses in action, 318. 
 real and personal property, 318. 
 deposit in bank, 318. 
 right of action for tort, 318. 
 trust property not .assignable, 318. 
 schedules, 319. 
 
INDEX. 626 
 
 [rkferencbs are to sections.] 
 
 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS.— 
 Continued. 
 list of creditors, 320. 
 additions to list, 320. 
 
 omission of schedules badge of fraud, 321. 
 must designate assignee, 322. 
 must be delivered, 323. 
 • what delivery sufficient, 323. 
 
 must be accepted by assignee, 324. 
 
 presumption of acceptance, 324. 
 
 assignee need not sign, 324. 
 
 acceptance implied from acts, 324. 
 
 acceptance by one assignee sufficient, 324. 
 
 can not be accepted in part, 324. 
 
 assignee's title, 324. 
 
 notice to creditors, 325. 
 
 recording of assignments, 325. 
 
 notice to creditors, 325. 
 
 legal effect of, 326. 
 
 incident of ownership, 327. 
 
 who may make, 328. 
 
 by corporation, 328. 
 
 by executor, 328. 
 
 by lunatic, 328. 
 
 by partner, 329. 
 
 by partner with authority, 329. 
 
 by partner in emergencies, 329. 
 
 by pai^ner during absence of partner, 329. 
 
 by partner with assent, 329. 
 
 dormant partner need not execute, 329. 
 
 by surviving partner, 329. 
 
 by minor, 329. 
 
 incidental delay does not vitiate, 330. 
 
 there must be fraudulent intent, 331. 
 
 intent to defeat execution, 23, 332. 
 
 not affected by insolvency, 332. 
 
 no inquiry into secret motives, 333. 
 
 not vitiated by stratagem, 333. 
 
 fraud in the creation of debt, 333. 
 
 must be bona fide, 334. 
 
626 INDEX. 
 
 [references are to sections.] 
 
 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS.— 
 Continued. 
 
 prevention of sacrifice, 335. 
 
 fraud must be in the beginning, 336. 
 
 founded on valuable consideration, 307-336. 
 
 participation by assignee, 337. 
 
 notice of fraud to assignee, 337. 
 
 construction of, 338. 
 
 no evidence to vary legal effect, 338. 
 
 several instruments constructed together, 339. 
 
 several instruments, execution of, on same day, 339. 
 
 one fraudulent clause renders void, 340. 
 
 effect of clause inserted by mistake, 340. 
 
 construed strictly, 341 . 
 
 burden of proof, 342. 
 
 effect of ambiguous terms, 342. 
 
 no presumption of illegal act, 343. 
 ; powers that may be inoperative, 344. 
 
 rule of construction, 345. 
 
 <;ontrolled by lex loci, 346. 
 
 debtor may be embarrassed, 347. 
 
 may be voluntary, 347. 
 
 may convey all, 347. 
 
 seed not convey all, 347. 
 
 need not convey separate estates, 347. 
 
 solvent debtor may make, 348. 
 
 solvent debtor cannot protect surplus, 349. 
 
 solvent debtor, prevention of sacrifice, 350. 
 
 solvent debtor, proof of solvency, 351. 
 
 solvent debtor, nominal difference between assets and 
 liabilities, 351. 
 , solvent debtor's belief of solvency, 352. 
 
 debtor may select assignee, 353. 
 
 who may be assignee, 353. 
 
 no power to remove assignee, 353. 
 
 assignee's qualifications, 354. 
 
 disqualifications a badge of fraud, 355. 
 
 omission to record, 356. 
 
 change of possession, 357. 
 
 employment of debtor, 357. 
 
INDEX. 627 
 
 [references are To sections.] 
 
 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS.— 
 Continued. 
 debtor's advice, 358. 
 no power of revocation, 359. 
 power to make loans, 359. 
 uses must be declared, 360. 
 subsequent schedules, 361. 
 assignee cannot declare uses, 362. 
 fictitious debts, 363. 
 creditor may impeach debt, 363. 
 debt barred by statute of frauds, 364. 
 debt barred by release, 364. 
 claim of debtor's wife, 365. 
 provision for sureties, 366. 
 provision for secured debts, 367. 
 what debts may be provided for, 367-368. 
 debt due to firm of w^hich the assignor is partner, 368. 
 debt due to partner, 368. 
 by firm for private debt, 369. 
 for separate debt when assignment includes separate 
 
 property, 369. 
 debt in the name of one partner, 369, 
 for joint debts, 369. 
 after dissolution of partnership, 369. 
 separate property to firm debts, 370. 
 ■disposition of surplus b}^ partnership, 371. 
 equal distribution favored, 372. 
 preferences may be given, 373. 
 preferences to defeat others, 374. 
 secret motives for preference, 375. 
 postponement of interest, 376. 
 no reservation for benefit of debtor, 377. 
 no provision for debtor's family, 377. 
 no continuance of business, 377. 
 right of possession, 378. 
 effect of concealing assets, 380. 
 exception from operation, 381. 
 residuary interests, 383. 
 reservation of surplus, 383. 
 
628 INDEX. 
 
 [rbfbrences are to sections.] 
 
 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 
 Continued. 
 reservation of surplus, when fraudulent, 384. 
 reservation of surplus by firm, 385. 
 reservation of surplus after payment of all, 386. 
 delay in closing trust, 387. 
 time must be reasonable, 388. 
 discretion of assignee in regard to sales, 389. 
 illegal power vitiates sale, 390. 
 when delay of sale fraudulent, 391, 392. 
 sale without delay, 393. 
 assignee may be vested with discretion, 394. 
 assignee may fix a place. for sale, 394. 
 assignee may fix a price, 394. 
 sell at public or private sale, 395. 
 prohibition of sales on credit, 396. 
 sales on credit, 396, 397. 
 delay of distribution, 398. 
 power to compromise bad/ debts, 399. 
 sale of bad debts, 400. 
 assignee's power over property, 401. 
 assignee's power to insure, 401. 
 to pay incumbrances, 401. 
 to defend suits, 401. 
 to pay rent and taxes, 401. 
 to advertise, 401. 
 
 assignee's power to mortgage, 402. 
 assignee's power to manage the estate, 402. 
 exempting assignee from liability, 403. 
 the measure of assignee's duty, 404. 
 assignee must be held to ordinary diligence, 404- 
 assignee liable for negligence, 404. 
 diligence in getting property, 404. 
 diligence in selecting agents, 404. 
 provisions for expenses, 405. 
 compensation of assignee, 406. 
 assignee can not act as attorney, 406. 
 employment of attorney, 407. 
 expenses of debtor, 408. 
 
INDEX. 629 
 
 [references are to sections.] 
 
 ASSIGNMENTS FOR THE BENEFIT OF CREDITORS.— 
 Continued. 
 
 requirements for dividend, 409. 
 
 composition with the creditors, 410. 
 
 postponement of creditors who sue, 411. 
 ASSIGNMENTS EXACTING RELEASES, are fraudulent, 
 412, 413, et seq. 
 
 principles upon which they rest discussed, 414, 415, 416, 
 417, 418, 419. 
 
 future earnings pledged to debt, 418. 
 
 dissent of jurists, 420. 
 
 prevailing doctrine, 420. 
 
 release while debtor remains owner, 421. 
 
 release while property remains open, 421. 
 
 must convey all, 422. 
 
 no reservation of share of dissenting creditor, 423. 
 
 reservation of surplus, 424. 
 
 evidence that all is conveyed, 425. 
 
 what words are sufficient, 425. 
 
 partners must unite, 426. 
 
 dower need not be released, 426. 
 
 absconding with funds, 426. 
 
 time for acceptance, 427. 
 
 ambiguity, 428. 
 
 preferences, 429. 
 
 form of release, 430. 
 
 release by partner, 430. 
 
 how far binding on creditors who assent, 431. 
 ASSUMPSIT, will not lie against fraudulent grantee, 527. 
 ATTACHMENT, transfer to defeat, is fraudulent, 504. 
 
 sale under fraudulent attachment is void, 235. 
 
 sufficient to justify seizure, 452. 
 
 void attachment no justification, 452. 
 
 proof of, as against grantee, 453. 
 
 creditor's debt must be established, 453. 
 
 when defeated by plea of set-off, 453. 
 
 valid seizure under, 522. 
 
 possession under, 522. 
 
 delay, 522. 
 
 quashing by subsequent attaching creditor, 522. 
 
630 INDEX. 
 
 [refbrences are to sbctions.] 
 
 ATTACHMENT.- Continued. 
 
 sheriff after, may file bill, 554. 
 
 sheriff and creditor may' join, 555. 
 ATTORNEY may be preferred creditor, 169. 
 
 provision for fees of, 173, note, 407, 583. 
 
 assignee may employ, 407. 
 
 assignment should not appoint, 407. 
 
 fraudulent conveyance to, 438. 
 ' may be paid out of fund, 583. 
 ATTORNMENT of tenant to assignee, 474. 
 
 B 
 
 BADGES OF FRAUD, definition of 41, see note, 
 explanation of, 42. 
 not of equal weight, 43. 
 vary with each case, 43. 
 effect of, 41 , 44. 
 one sufficient, 44. 
 concurrence of several, 44. 
 instructions, 45. 
 no enumeration possible, 46. 
 transfer of all, 47. 
 generalities, 48. 
 embarrassment, 49. 
 indebtedness, 49, 247. 
 pendency of suit, 50. 
 secrecy, 51. 
 concealment,' 52, 291. 
 
 omission to record deed, 52, note, 291, 356. 
 secret trust, 53. 
 false recitals, 54. 
 absolute deed as mortgage, 55. 
 right to repurchase, 55. 
 false statement of consideration, 56. 
 discrepancy between amount due and amount secured, 
 
 56. 
 judgment for more than is due, 5G. 
 antedating instruments, 56. 
 inadequacy, 57. 
 fictitious consideration, 57. 
 
INDEX. 631 
 
 [rbferencks are to skctions.] 
 
 BADGES OF VRAVB.—Conii7t?(ed. 
 
 excessive mortgage, 58. 
 
 duration of mortgage, 59. 
 
 unusual credit on sale, 60. 
 
 notes drawn for a long time, 60. 
 
 perishable articles, 61. " 
 
 possession of land, 62-291. 
 
 acts of ownership, 62-291. 
 
 departure from usual course of business, 63. 
 
 unusual clauses, 63. 
 
 unusual mode of payment, 64. 
 
 calling witnesses, 64. 
 
 absence of evidence, 65. 
 
 proof of payment, 66. 
 
 mere production of notes, 66. 
 
 waht of precision in evidence, 66. 
 
 relationship, 67. 
 
 confidential friend, 67. 
 
 delay, 68. 
 
 possession, 69-291. 
 
 erection of improvements, 291. 
 
 omission of schedules from assignment, 321. , 
 
 BAIIvEE, of grantor fraudulent transfer valid against, 449. 
 BAri,MENT, not within rule as to possession, 134, 137, 155, 156. 
 
 not fraudulent, 137. , 
 
 not within the statute, 229. 
 BANKRUPTCY, defence of may be waived, 203. 
 
 assignee may sell subject to transfer, 473. 
 
 assignee may sell right to assail transfer, 473. 
 
 attornment of tenant to assignee, 474. 
 
 assignee is a creditor, 505. 
 
 assignee may file bill, 553. 
 
 assignee may join creditors, 553. 
 
 creditors may make assignee party defendant, 553. 
 
 creditors may enforce liens, 553. 
 
 creditors can not levy after, 553. 
 
 (See also 'Insolvency and Assignee for Creditors.) 
 BASTARDY, claim for is protected by the statute, 503. 
 BENEFIT, no reservation of, in assignment, 377. 
 
 exceptions to this rule, 381, 382. 
 
■632 INDEX. 
 
 [references are to sections.] 
 
 BKNEFIT. — Continued. 
 
 giving creditors only rents and profits, 377. 
 
 continuance of business, 377. 
 
 demanding indulgence, 377. 
 
 expense of release, 377. 
 
 future advances, 377.' 
 
 exemption from suit, 377, 
 
 reservation for member of firm, 377. 
 
 right to possession, 378. 
 
 concealment of property, 380. 
 
 transfer to use of grantor, 191. 
 
 what benefits may be reserved, 193. 
 
 secret trust, 194. 
 
 collusion, 195, 196. 
 
 fictitious consideration, 196. 
 
 bounty of creditor, 175. 
 
 gift can not be enforced, 202. 
 
 bounty of purchaser, 197. 
 
 must be returned in order to impeach transfer, 464. 
 Bllvly IN EQUITY, when may be brought, 532. 
 
 purchase in name of another, 533. 
 
 chose s in action, 534. 
 
 complainant must have lien, 535, 536. 
 
 what lien is sufficient, 537, 538, 539. 
 
 return of execution unsatisfied, 540, 541. 
 
 second execution, 542. 
 
 kind of judgments to support lien, 543. 
 
 equitable demand, 544. 
 
 after death of grantor, 545, 547, 548. 
 
 executors de son tort, 546. 
 
 not necessary to proceed against estate, 547. 
 
 administrator, 548. 
 
 non-residents, 549. 
 
 no relief at law, 550. 
 
 objection for want of lien, 551. 
 
 fraudulent judgments, 552. 
 
 ■other property, 552. 
 
 In case of bankruptcy, 553. 
 
 by receivers, 554. 
 
 by sheriff, 554. 
 
INDEX. 633 
 
 [references are to sections.] 
 
 BIIvIv IN 1S;QUITY .— Coniinued. 
 
 by purchaser at execution sale, 554. 
 
 by assignee, 554, 555. 
 
 joinder of parties complainant, 555. 
 
 joinder of parties defendant, 556. 
 
 averments in, 558. 
 
 should state facts, 559. 
 
 charge of fraud, 560. 
 
 endorser cannot prosecute pending, 561. 
 
 objection to, how taken, 562. 
 
 supplemental bill, 561. 
 BILIf OF SAIyE must not reserve surplus, 192, note. 
 
 registration, no, note. 
 BOARD of minor child, not good consideration, 211. 
 BONA FIDES OF THE TRANSFER does not validate vol- 
 untary conveyance, 239, et seq. 
 
 ground for protecting innocent vendee, 180. 
 
 no protection without valuable consideration, 181. 
 
 there must be good faith, 182. 
 
 fraud when full price is paid, 182. 
 
 exchange of lands, 182. 
 
 notice to grantee, 183. 
 
 knowledge of insolvency, 183. 
 
 knowledge of judgment, 183. 
 
 knowledge of attachment, 183. 
 
 actual knowledge not requisite, 184. 
 
 what puts party on inquiry, 184. 
 
 notice inferred from relationship, 184. 
 
 not knowledge of full intent, 184. 
 
 motives need not be the same, 185. 
 
 subsequent co-operation, 186. 
 
 notice to agent, 186. 
 
 sale to pay debts, 187. 
 
 mere intent to defeat execution, 188. 
 
 disposition of proceeds, 189. 
 
 retention of part, 189. 
 
 provision for creditors, 189. 
 
 inadequacy, 190. 
 
 sale on credit, 190. 
 
 use of grantor, 191. 
 
634 INDEX. 
 
 [rBFERENCES ABE TO SECTIONS.] 
 
 BONA FJDES OF THE TRMiSP^^.— Continued. 
 
 resulting trust, 192. 
 
 reservation af benefits, 193. 
 
 secret trust, 194. 
 
 right of possession, 195. 
 
 collusion, 196. 
 
 note as fictitious consideration, 196. 
 
 purchaser's bounty, 197. 
 
 power to rescind contract, 198. 
 
 right to repurchase, 194, 198. 
 
 support of debtor, 194, 199. 
 
 support of debtor when full consideration given, 199. 
 
 support of debtor when solvent, 200. 
 BONA FIDE PURCHASERS, protected by the statute, 17, 
 
 180, 239, 491. 
 
 must give valuable consideration, 181. 
 
 must take in good faith, 182. 
 
 from fraudulent grantee, 490, 491, et seq. 
 
 when purchaser is, 493. 
 
 pre-existing debt, 493. 
 
 relinquishment of security', 493. 
 
 notice before payment, 493. 
 
 notice before conveyance, 493. 
 
 giving security, 493. 
 
 mortgagee, 493. 
 
 put on inquiry, 494. 
 
 from whom notice may be derived, 494. 
 
 fraud on face of instrument, 495. 
 
 chattel mortgage, 496. 
 
 subsequent judgment, 497. 
 
 subsequent purchase under execution, 497. 
 
 purchase after issue of execution, 497. 
 
 ■pnrchase: />e?idenie Hie, 497. 
 
 purchase after sale under execution, 497. 
 
 marriage, 498. 
 
 purchase under fraudulent judgment, 499. 
 
 purchase from bona fide purchaser, 499. 
 
 creditor, 500. 
 
 creditor can not take mortgage notes, 500. 
 
INDEX. 635 
 
 [rbkerknces are to sections.] 
 
 BREACH OF PROMISE, claim for protected by statute, 503. 
 BURDEN OF PROOF, see onus probandi. 
 
 C 
 
 CALIFORNIA, doctrine of as to possession, 109, note. 
 
 as to JUS disponendi, 116, notes. 
 CANCELLATION OF DEBT, fraudulent, 230. 
 CHANGE OF POSSESSION, must be actual, no. 
 
 what constitutes, 123, 124, 125, 133. 
 
 must be observable, 127, 133. 
 
 when impossible, 151. 
 
 of ponderous articles, 151, 152, 153. 
 
 see also POSSESSION. 
 CHATTELS, possession of 69, 72, et seq., log, 116. 
 
 transfers to use of grantor, 191. 
 
 resulting trust, 192. 
 
 what benefits may be reserved, 193. 
 
 within the statute, 215. 
 
 judgment and execution bind, 538, 582. 
 
 return of 7mlla "-bona, 540, 541 . 
 
 may be settled in marriage, 269. 
 
 of wife not consideration, 280. 
 
 assignment of, 317. 
 CHECK, as a consideration, 204. 
 CHILDREN, marriage consideration extends to, 270, note. 
 
 board of, not valuable consideration, 211. 
 
 services of, not valuable consideration, 211. 
 
 earnings of, not valuable consideration, 211. 
 
 earnings of belong to parent; 227. 
 CHOSES IN ACTION, within the statute, 216. 
 
 rule as to possession, 162. 
 
 equity sets aside transfers of, 216, 534. 
 
 of wife, when valuable consideration, 280, 281. 
 
 settlement of on wife, 282. 
 
 a valuable consideration, 282. 
 
 assignment of, 317, 318. 
 CODE OF NEW YORK, possession, loi. 
 COLLATERAL IMPEACHMENT OF JUDGMENT, 587. 
 
 Louisiana rule, 530. 
 
636 INDEX. 
 
 [references are to sections.] 
 
 COLLATERAI. REI.ATIVES. 
 
 marriage consideration extends to, 270, note. 
 COLIvUSION, 196. 
 COIyORADO, doctrine of as to possession, 109, note. 
 
 doctrine of as to jus disponendi, 116, note. 
 
 doctrine of as to assignments exacting releases, 414, note. 
 COMMERCE, origin of, i. 
 
 not promoted by preferences, 166. 
 
 by rule as to possession, 80. 
 COMMON I^AW, law of fraudulent conveyances a part of, 9, 13. 
 
 statute declaratory of, 12. 
 COMPROMISE, assignee may, 399, 400. 
 
 power favorable to creditors, 300. 
 
 may not compromise with assignor's creditors, 410. 
 CONCEAIyMENT, is a badge of fraud, 52, 291, 380. 
 
 of assets, in assignment, 380. 
 CONCURRENT POSSESSION, 126. 
 CONDITIONAL SAEES, 138 note, 141. 
 
 not fraudulent, 138. 
 
 rule as to possession, 138. 
 
 Pennsylvania rule, 138. 
 
 recording required,* 138, note. 
 
 of goods to be resold, 138, note. 
 CONFEDERATE NOTE as consideration, 203. 
 CONFIRMATION of fraudulent transfer by creditor, 456. 
 
 none without notice, 456, 459, 463. 
 
 acquiesence does not amount to, 456. 
 
 by express contract, 457. 
 
 by acceptance of proceeds, 458. 
 
 must be founded on valuable consideration, 460. 
 
 of assignments, 461, 463. 
 
 by retaining benefit, 464. 
 
 effect of, 467. 
 
 of assignment by creditors binding on assignees, 467. 
 CONNECTICUT, doctrine of possession, 109, note. 
 
 a.s to jus disponendi, 116, note. 
 CONSIDERATION must be adequate, 57, 173, 190 
 
 when grantee must prove, 66. 
 
 antecedent debt, 164. 
 
 necessary to protect purchaser, 181. 
 
INDEX. 637 
 
 [refereijjces are to sections.] 
 
 CO-NSlD^RAriO-N .— Coniinued. 
 right of possession, 195. 
 fictitious consideration, 196, 605. 
 in case of wild lands, 190, note, 
 support of debtor, 199, notes, 200. , 
 good means valuable, 201. 
 
 what constitutes, 201, 202, 205, 231, 239, 605., 
 illegal, 202. 
 
 parol agreement to give, 202, 605. 
 what the law would' compel, 202. 
 waiver of statu tor}' defences, 202. 
 waiver of statute of limitations, 203. 
 waiver of discharge in bankruptcy, 203. 
 waiver of statute of frauds, 203. 
 waiver of parol ante-nuptial agreement, 203, 276. 
 waiver of voluntary release, 203. 
 waiver of usury, 203. 
 confederate note, 203. 
 when consideration may be paid, 204. 
 promise to pay, 204. 
 check, 204. 
 annuity, 204. 
 existing debt, 204. 
 liability, 204. 
 unliquidated debt, 204. 
 note taken at time of advance, 204. 
 counter security by surety, 204, 
 debt of another, 205. 
 voluntary bond, 205. 
 interest, 205. 
 
 illustrations of good considerations, 206, .605. 
 embezzled money, 206, note, 
 worthless lands, 206, note, 
 equitable title, 206, note, 
 note of an insolvent, 206, note, 
 assumption of incumbrances, 206. 
 note of minor, 206. 
 note oi feme covert, 206. 
 prior judgment, 206. 
 promise to pay debts, 206. 
 
638 INDEX. 
 
 [references are to sections.] 
 
 CO'NSIDZRATIQN. —Coniittued. 
 
 refease of equity of redemption, 207. 
 , deception in marriage, 208. 
 
 indemnity for illicit intercourse, 208. 
 illicit cohabitation, 208. 
 damages for seduction, 208. 
 separate debts of partners, 209. 
 ■ transfer to copartner, 209. 
 firm debt for transfer by partner, 209. 
 loan to stockholder, 209. 
 future advances, 210, 605. 
 
 services between members of the same family, 21 j. 
 board of child, 211. 
 earnings of minor, 211, 227. 
 earnings of wife, 211, 226. 
 contract for emancipation, 211. 
 marriage is valuable, 266, 605. 
 extent of marriage consideration, 270, note, 
 marriage portion, 277. 
 claim for alimony, 278. 
 deed of separation, 278. 
 wife's choses in action, 281. 
 wife's property is not, 280, 286, note, 
 wife's separate estate, 283. 
 wife's release of dower, 284, 285. 
 wife's release of homestead right, 285. 
 advances by wife to husband, 286, note, 
 of assignment, 307. 
 confirmation of fraudulent transfer must be founded on, 
 
 460. 
 rec'ita.]., pn'ma/acie proof of, 603, see note, 
 declarations, evidences of, 584, 603. 
 when proof of, necessary, 604. 
 when none expressed, 605. 
 proof of additional, 605. 
 from other parties, 606. 
 contemporaneous instruments, 607. 
 notes and judgments, 60S. 
 can not be varied, 609. 
 CONSPIRACY, proof of, 598. 
 
INDEX. 639 
 
 [rkferences ark to sections.] 
 
 CONSPIRATORS, acts and declarations of, 597. 
 CONSTRUCTION, statute liberally construed, 14. 
 
 not to injure third persons, 14. 
 
 of written instruments, 25. 
 
 of deed for court, 338. 
 
 several instruments construed together, 339. 
 
 assignments construed strictly, 341. 
 
 when deed is ambiguous, 342. 
 
 no inference of unlawful intent, 343. 
 
 of assignments, 345. 
 
 of Ifx loci, 346. 
 CONSTRUCTIVE POSSESSION, not sufficient, no, 122. 
 CONTINUOUS INDEBTEDNESS, as to subsequent creditors, 
 
 296. 
 CONTINUOUS POSSESSION, rule as to, 123. 
 CONTRACTS, FRAUDULENT, can not be enforced, 434. 
 
 equity will nor enforce, 434. 
 
 trusts in fraudulent deed, 435. 
 
 when parties are not in pari delicto, 436, 437, 438, 439, 
 440. 
 
 when claim against grantor is unfounded, 441 . 
 
 upon rescission of fraudulent conveyance, 441. 
 
 bill to redeem, 442. 
 
 between grantees, 443. 
 
 actions at law, 444. 
 
 no action on note, 445. 
 
 bona fide holder, 445. 
 
 promise to innocent third party, 445. 
 
 grantee can not enforce, 447. 
 
 grantee can not sue on note, 447. 
 
 grantee can not sue on covenant, 447. 
 CONTRACTS, between husband and wife, 279. 
 
 relating to land, 231. 
 CONVENIENCE of parties will not excuse possession, 141. 
 CONVEYANCE to use of grantor, 191, 298. 
 
 all kinds within the statute, 228. 
 
 forfeiture by tenant, 230. 
 
 outlawry, 230. 
 
 cancellation of debt, 230. 
 
 note in name of another, 230. 
 
640 INDEX. 
 
 [references are to sections.] 
 
 CONVEYANCE.— Continued. 
 remission of rent, 230. 
 land contracts, 231. 
 assignment of lien, 232. 
 dissolution of partnership, 233. 
 judgment, 234. 
 sale under execution, 235. 
 purchase with debtor's money, 236. 
 good between parties, 432. 
 binds the grantor's heirs, 433. 
 binds the grantor's executors, 433. 
 binds the grantor's administrators, 433. 
 binds the grantor's agents, 433. 
 binds the grantor's vendees, 433. 
 estoppel by covenant, 433. 
 rights of grantees, 443. 
 valid against third parties, 449. 
 valid against debtor's tenant, 449. 
 valid against prior mortgagee, 449. 
 valid against wrongdoers, 449. 
 valid against grantee's tenant, 449. 
 valid against grantees bailee, 449. 
 valid against stockholders, 449. 
 valid' against party liable for demand,' 449. 
 valid against creditors without legal process, 450. 
 valid against void attachment, 452. 
 valid against void levy, 452. 
 valid against levy after return day, 452. 
 valid against levy out of bailiwick, 452. 
 valid against void judgment, 452. 
 valid against illegal distress, 452. 
 valid against fraudulent judgment, 452. 
 valid against satisfied judgment, 452. 
 valid against debtor's grantee, 454. 
 confirmation by creditor, 455, 456. 
 confirmation by express agreement, 457. 
 confirmation by acceptance of proceeds, 458. 
 CO-OPERATION of grantor and grantee, 186. 
 CORPORATION may be guilty of fraudulent intent, 35. 
 may give preferences, 169, note, 373. 
 
INDEX. 641 
 
 [rbpekences are to sections.] 
 
 CORPORATION.— Continued. 
 
 assets of are a trust fund for creditors, 169, note. 
 , franchises of will pass by assignment, 318. 
 may make assignment, 328. 
 may appoint president assignee, 353. 
 stockholder bound by transfer of corporation, 449. 
 stockholder cannot avoid liability for corporate debts, 
 
 504- 
 COSTS, in discretion of court, 583. 
 
 to successful party, 583. 
 
 in case of constructive fraud 583. 
 
 peculiar hardship to creditor, 583. 
 
 improper conduct on part of defendant, 583. 
 
 purchaser, .583. 
 
 necessary party, 583. 
 
 assignee, 583.. 
 
 counsel fees, 583. 
 COVENANT, estoppel by, in fraudulent deed, 433. 
 
 in marriage articles, 274. 
 
 in deed of separation, 278. 
 CREDIT, sales on may be permitted, 190. 
 
 sales on, in assignment, 396, 397. 
 CREDITORS, WHO ARE, must have legal process, '450. 
 
 must have lawful claim, 501. 
 
 pretended claim, 501. 
 
 illegal claim, 501. 
 
 liberal construction of term, 502. 
 
 creditors and others, 502. 
 
 claim of a partner, 503. 
 
 claim for embezzlement, 503, 206, faote. 
 
 claim for seduction, 503, 208. 
 
 demand need not be due, 503. 
 
 contingent claim, 503. 
 
 liability as surety, 503. 
 
 damages, 503. 
 
 voluntary bonds, 503. 
 
 slander, 503. 
 
 tort, 503. 
 
 promise to marry, 503. 
 
 support of bastard, 503, 
 
642 >,INDEX 
 
 » 
 
 [rBpbrbnces are to sections.] 
 
 CREDITORS, WHO K^IS,.— Continued. 
 
 false representation, 503. 
 
 forfeitures, 503, 504. 
 
 usurious interest, 503. 
 
 marriage settlement, 504. 
 
 alimony, 504. 
 
 demand against stockholder, 504. 
 
 debts of ancestor, 504. 
 
 liability as partner, 504. 
 
 accommodation endorser, 504. 
 
 sheriff, 504. 
 
 purchasers, 504. 
 
 assignees, 504. 
 
 receivers, 504, 433, note. 
 
 administrators, 433, note. 
 
 claim of town for support, 506. 
 
 judgment for costs, 506. 
 
 judgment for prior and subsequent debt, 506. 
 
 change pf evidence of debt, 507. 
 
 at what time' right accrues, 506. 
 CREDITORS, RIGHTS OF, have no title in the debtor's prop- 
 erty, 15. 
 
 have equal rights, 164, 165. 
 
 may secure a preference, 167. 
 
 may seek payment though others lose debts, 168. 
 
 knowledge of intent to defeat execution, 170. 
 
 must act in good faith, 172. 
 
 secret trust, 174. 
 
 gifts to debtor's family, 175. 
 
 may purchase, 178. 
 
 are not parties to assignment, 306. 
 
 presumption of assent to assignment, 308. 
 
 when presumption of assent is excluded, 309-310. 
 
 may reject assignment, 311. 
 
 effect of rejection, 312. 
 
 creditoJ- ma^ be assignee, 373. 
 
 must haVe legal process, 450. 
 
 may set off his own debt, 452. 
 
 proof of right to seize, 453. 
 
 claim under deed from debtor, 454. 
 
INDEX. 643 
 
 [rbfbrbnces are to sections.] 
 
 CREDITORS, RIGHTS OV'.— Continued. 
 ratificati|p, 455-456. 
 notice to, 456. 
 acqiiiescence, 456. 
 assent of others, 457. 
 agreement for consideration, 457. 
 when trustee, 455. 
 advice, 455. 
 
 receiving proceeds, 458. 
 
 estoppel, 458, 459. I 
 
 must return benefit, to impeach transfer, 464. 
 may confirm transfer, 467. 
 may levy on property, 468. 
 ' rights of grantee's creditors, 470. 
 
 priority of liens, 469. 
 cannot levy on mesne profits, 475. 
 may treat partition by grantee as valid, 476. 
 after transfer, 477. 
 can not enjoin .transfer, 526. 
 n6 assumpsit or case against grantee, 527, 528. 
 change of remedy, 529. 
 action at law, 531. 
 bill in equity, 532. 
 proof of claim, 584. 
 creditor must have lien, 535, 536. 
 must have return of nulla bona, 540, 
 CROPS, creditor may levy on, 475, 
 CROSSBIIvL, debtor may file, 566. 
 
 D 
 
 DAMAGES, for unlawful marriage, constitute good considera- 
 tion, 208. 
 
 for seduction good consideration, 208. 
 
 for past illicit intercourse good consideration, 208. 
 
 claim for is protected by statute, 503. 
 
 claim for is good consideration, 605. 
 DEATH of debtor, possession after, 160, 523. 
 
 proceedings after, 523, 525, 545, 546, 547, 548. 
 
 See also Administrator, Executor, Hbir, 
 
644 INDEX. 
 
 [refkrbnces are to sections.] 
 
 DEBTOR is quasi trustee for creditors, i6. 
 
 transfer for benefit of is void, 37. || 
 
 may sell his property, 179. 
 
 agreement to support, 194, 199, note. 
 
 may transfer to equitable owner, 206, note. 
 
 transfer to is not in the statute, 212, 213. 
 
 his earnings cannot be reached, 222, note. 
 
 may live on wife's land, 225. 
 
 employment of, 357. 
 DEBTOR AND CREDITOR, ancient law of, 3. 
 
 Roman law of, 4. 
 DEBTS, sale to pay, 187. 
 
 statement of in assignment, 320. 
 
 described by name of creditor, 320. 
 
 amount omitted, 320. 
 
 amount written on schedule by creditors, 320. 
 
 future enumeration, 320. 
 DECI^ARATIONS, of grantor to establish indebtedness, 584, 
 
 when part of the res gesta, 593. 
 
 contemporaneous, 593. 
 
 remote, 594. 
 
 prior, 594. 
 
 acted on by grantee, 596. 
 
 of conspirators, 597. 
 
 conspiracy must be established, 598. 
 
 subsequent, 599. 
 
 while in possession, 600. 
 
 in favor of grantee, 600. 
 DECREE, form of, 576. 
 
 for sale, 576. 
 
 on bill, by purchaser, 576. 
 
 when conclusion, 577. 
 
 establishes priorities, 578. 
 DEEDS, absolute, as mortgage is constructively fraudulent, 55, 
 194, note. 
 
 fraudulent may stand as security, 265, 486, 628, 631, 634. 
 
 recitals in, as evidence, 603, 604. 
 
 contemporaneous, 607. 
 DEED OF TRUST, not a hindrance or delay, 68. 
 
 distinguished from assignment, 304, 305. 
 
INDEX. 645 
 
 [rbferbnces are to sections.] 
 
 DEFECTIVE SETTLEMENT, may be rectified, 287. 
 DEFENSES may be waived, 203. 
 
 usury, 203. 
 
 limitations, 203. 
 
 of grantee, 588. 
 DELAWARE, rule as to possession, 109, note. 
 
 rule as to jus disponendi, 116, note. 
 DELAY, see Hindrance and Delay. 
 DELIVERY, what is sufficient, 122. 
 
 symbolical a fraud, 122. 
 DISTANCE, delivery of goods at a, 154. 
 DISTRESS, conveyance valid against illegal, 452, 
 DISTRIBUTION, when only one complainant, 576. 
 
 when several complainants, 578. 
 
 among creditors at large, 579. 
 
 equitable lien, 580. 
 
 when several bills have been filed, 580. 
 
 equitable liens subject to other liens, 581. 
 
 costs, 583. 
 DISTRICT OF COLUMBIA, rule as to possession, 109, note. 
 
 r\i[& zs to jus disponendi, 116, note. 
 DONEE. See Voluntary Settlement. 
 DONOR. See Voluntary Settlement. 
 DOWER, good consideration, 284. 
 
 release without promise, 285. 
 
 mere promise to release, 285. 
 
 in property conveyed, 478. 
 
 after mortgage, 478. 
 
 purchase in name of another, 478. 
 
 not affected by fraud, 633. 
 
 EARNINGS of child, not good consideration, 211, 227. 
 of wife, not good consideration, 211, 226. 
 debtor may claim his own, 222. 
 debtor may protect his earnings, 222. 
 debtor cannot assign future, 222. 
 debtor cannot accumulate, 223. 
 of child after emancipation, 227. 
 of child subject to support, 227. 
 
646 INDEX. 
 
 [referbncks ark to sections.] 
 
 EMANCIPATION, contract for, a good consideration, 211. 
 
 child's claim to earnings after, 227. 
 
 marriage is, 227. 
 EMBEZZIyED MONEY is valuable consideration, 206. 
 
 claim for is protected by the statute, 503. 
 ENGIyAND, authorities as to possession, 85 et seq., 109, note. 
 
 law of voluntary conveyances, 240, note. 
 
 law of marriage, settlements, ,270, note. 
 
 rule as to extent of marriage considteration, 270, note. 
 EQUITABIvE ASSETS, settlement of wife's, 282. 
 
 how reached, .540. 
 EQUITY may set aside conveyances partially voluntary, 265. 
 
 will enforce parol ante-nuptial agreements, 276, note. 
 
 will enforce settlement of wife's choses in action, 282. 
 
 will not enforce fraudulent contract, 434, 435. 
 
 will not generally compel reconveyance, 434, 435. 
 
 will not enjoin fraudulent conveyance, 526. 
 
 will sometimes appoint receiver, 526. 
 
 will relieve against fraud, 532. 
 
 when no relief at law, 550. 
 
 when there is a remedy at law, 532. 
 
 purchase in the name of another, 533. 
 
 transfer of choses in action, 534. 
 
 when creditor must have lien, 535. 
 
 when execution must be issued, 538. 
 
 attachment, 538. 
 
 garnishment, 538. 
 
 warrant of distress, 538. 
 
 return of execution unsatisfied, 540. 
 
 return before return day, 541. 
 
 second execution, 542. 
 
 kind of judgments, 543. 
 
 judgment against joint debtors, 543. 
 
 equitable demand, 544. 
 
 after death of debtor, 545. 
 
 executor de son tort, 546. 
 
 non-residents, 549. 
 
 relief against fraudulent judgment, 552. 
 
 exercises discretion, 552. 
 
 decree limited to bill, 576. 
 
INDEX. 647 
 
 [rbfbrencks are to sections. I 
 
 EQUITY.— Continued. 
 
 not bound by limitations, 573, 574. 
 
 sell the property, 576. 
 
 distribution of proceeds, 578. 
 
 creditors at large, 579. 
 
 among liens, 580. 
 
 costs, 583. 
 
 proof in equity, 620. 
 
 equity follows proceeds, 623. 
 
 account for rents and profits, 625. 
 
 no indemnity in case of actual fraud, 628. 
 
 no set-off, 629. 
 
 indemnity in case of constructive fraud, 631- 
 
 improvements, 634. 
 
 apportionment, 635. 
 EQUITY OF REDEMPTION, purchase of, 130, i4S- 
 
 release of, is valuable consideration, 207. 
 
 sale of, may be set aside, 566. 
 ESTOPPEI*, by confirmation of fraud, 455, 456. 
 
 by agreement not to attack conveyance, 457. 
 
 receipt of dividend, 458. 
 
 acceptance of proceeds, 458. 
 
 receipt of purchase money by assignee, 458. 
 
 grantor, 433. 
 
 advice, 455. 
 
 taking fraudulent note, 458. 
 
 not by provision in assignment, 460. 
 
 not by attachment, 460. 
 
 appropriation under execution, 460. 
 
 must be recognition of validity, 463. 
 
 when others sell, 459. 
 
 return of benefit, 464. 
 
 privies, 455. 
 
 by covenant, 433. 
 
 of subsequent creditors, 462. 
 
 from grantor's conduct, 465. 
 
 of married woman by release of dower, 478. 
 EVIDENCE, absence of is a badge of fraud, 65. 
 
 inadmissible to support fraudulent deed, 338- 
 
 to show date of debt, 507. 
 
648 INDEX. 
 
 [rbperences are to sections.] 
 
 EVIDENCE. — Continued. 
 proof of debt, 584. 
 
 grantor's declarations as to debt, 584. 
 grantor's notes, 584. 
 grantor's accounts, 584. 
 judgment against grantor, 585. 
 . judgment against administrator, 585. 
 judgment by confession, 585. 
 of debt only prima facie, 586. 
 that debt does not exist, 587. 
 of grantee's defenses, 588. 
 limited to pleadings, 589. 
 test of relevancy, 591. 
 wide range allowed, 589. 
 precise limits can not be drawn, 590. 
 secret trust, 592. 
 resgestcB, 593. 
 prior acts of grantor, 594. 
 prior declaration, of grantor, 594. 
 only proximate, declarations, 594. 
 prior transfers, 595. 
 declarations of conspirators, 597. 
 proof of confederacy, 598. 
 subsequent declarations inadmissible, 599. 
 declarations with assent of grantee, 599. 
 declarations to contradict witness, 599. 
 declarations in possession, 600. 
 character of possession, 5oo. 
 in favor of grantee, 600. 
 possession must be shown, 600. 
 declaration must explain possession, 600. 
 relation of the parties, 601. 
 contemporaneous transfers between parties, 601. 
 conduct in relation to property, 601 . 
 contemporaneous acts, 602. 
 no evidence of character, 602. 
 indebtedness, 602. 
 intoxication, 602. 
 
 grantee's inability to purchase, 602. 
 false recitals, 603. 
 
INDJEX. 649 
 
 [references are To sections.] 
 
 EVIDENCE.— C^AwM^-rf. 
 
 concealment, 603. 
 
 intent of another, 617. 
 
 debtor's testimony, 618. 
 
 recitals in deeds, 603. 
 
 debtor's declarations in regard to consideration, 603. 
 
 to change character of deed, 604. , 
 
 when no consideration is expressed, 605. 
 
 additional valuable consideration, 605; 
 
 consideration from third parties, 606. 
 
 contemporaneous deeds, 607. 
 
 consideration of note, 608. 
 
 consideration of judgment, 608. 
 
 to vary consideration, 609. 
 
 See also onus probandi. 
 
 burden of proof, 612. 
 
 amount of proof, 613. 
 
 same at law as in equity, 620. 
 EXCHANGE of property not fraudulent, 182. 
 EXECUTION, sale under, rule as to possession, 149. 
 
 possession before creditor's execution is sufficient, 160. 
 
 fraud in, 235. 
 
 void, grantee's title good against, 452. 
 
 creditor must have, 450. 
 
 purchase at, 471. 
 
 levy of, equal to revocation of assignment, 312. 
 
 fraud in sales under, 235. 
 
 purchase with debtor's money, 236. 
 
 inadequacy of price, 237. 
 
 fraudulent sales, 237. 
 
 redemption of land, 232, 477. 
 
 purchase after issue of, 497. 
 
 direction to postpone levy, 515. 
 
 direction to postpone sale, 515. 
 
 effect of countermand, 515. 
 
 delay for specified time, 515. 
 
 delay a badge of fraud, 515. 
 
 mere neglect of sherifiF, 516. 
 
 possession after levy, 517. 
 
 consuming property, 517. 
 
650 INDEX. 
 
 [rbferences are to sections.] 
 
 EXECUTION.— Continued. 
 
 delay in sale, 518. 
 
 sale of cumbrous property, 518. 
 
 sale of land, 519. 
 
 setting aside execution, 521. 
 
 summary, 521. 
 
 intent to defeat, not fraudulent, 23, 170, 188, 332. 
 EXECUTOR may make assignment, 328. 
 
 bound by transfer, 4^3. 
 
 wketi a proper party, 556. 
 EXECUTOR de son tort, who is, 523. 
 
 when there is a rightful executor, 523, 
 
 may be sued by executor, 523. 
 
 only of personal estate, 523. 
 
 after sale, 523. 
 
 upon removal to another state, 524. 
 
 form of action, 524. 
 
 can not retain debt, 524. 
 EXEMPTED PROPERTY, transfer of, not fraudulent, 130, 220. 
 
 possession unnecessary, 130. 
 
 colorable transfer void, 220. 
 
 conversion of assets into, 220. 
 
 none after transfer, 479. 
 
 grantee may retain, 636. 
 EXPECTANCY, transfer of, 215, note. 
 EXPENSES, of assignment, 377. 
 
 FEME CO VERT. See Husband and Wife. 
 FORFEITURES, within the statute, 230. 
 
 for offeijCes, 504, 
 FI/ORIDA, doctrine of as to possession, 109, note. 
 FRANCHISES of corporation, will pass by assignment, 318. 
 FRAUD, at common law, 9. 
 
 construction against, 14. 
 
 what constitutes, 21. 
 
 elements of, 16. 
 
 what intent requisite, 20. 
 
 kind of fraud within the statute, 20. 
 
 not fraud on the public, 20. 
 
INDEX. 651 
 
 [references are to sections.] 
 
 FRAUD.— Continued. 
 
 fraud on one person, 20. 
 
 fraud on debtor, 20. 
 
 definition of, 21, note. 
 
 mere intentiofi, 21. 
 
 delay, 22. 
 
 definition of hindrance, 23. 
 
 ascertainment, 24. 
 
 ftaud in:fact, 24. . 
 
 question for jury, 24. 
 
 fraud in law, 25. 
 
 no difference between fraud in fact and fraud in law, 26. 
 
 depends on legal intent, 27. 
 
 question of law, 28. 
 
 prevention of sacrifice, 30, 27. 
 
 must be in the beginning, 33. 
 
 accident, 31. 
 
 mistake, 31. 
 
 by corporation, 35. 
 
 badges of, 41, et seq. 
 
 how far cured by mortgagee's possession, 120, 
 
 preferences, 164. 
 
 notice of, 183-184. 
 
 on debtor, relief against, 436. 
 
 proof of, 590. 
 
 burden of proof, 613. 
 
 mode of proof, 613. 
 
 may be presumed, 614. 
 
 amount of proof, 603, 615. 
 , same at law as in equity, 620. 
 FRAUDS, statute of, may be waived, 203. 
 FRAUDUI^KNT CONVEYANCES, history of law of, i. 
 
 Roman law of, 7. 
 
 English law of, 8. 
 
 common law, 9. 13. 
 ■ " early statutes, 10, 641, 642, 643. 
 
 elements of, 18. 
 
 definitions, 18, note. 
 
 how far good, 432, 433, 449. 
 
652 INDEX. 
 
 [REFERfeNCES AkE TO SECTIONS.] 
 
 FRAUDULENT CONVEYANCES:— Continued. 
 
 void in equity, 532. 
 
 void at law, 530, 531. 
 FUTURE ADVANCES, good coflsideration, 210, 605. 
 
 mortgage for, 210. ■ ' ' 
 
 mortgage may be taken for absolute sum, 210. 
 
 judgment for, 210. 
 
 G, 
 
 GEORGIA, doctrine of as to possession, 109, note. 
 GIFT of small value, 264. 
 
 contemporaneous with marriage, 268. 
 
 and see Voluntary Conveyai|ice. 
 GOOD WILL of business, not considered in determining solv- 
 ency, 252, note. 
 GRANTEE, failure to testify is a badge of fraud, 65. 
 
 when must prove consideration, 66, 249. 
 
 when protected, 180. 
 
 without consideration, 181-238, .239. 
 
 antecedent debt , 181. 
 
 must act in good faith, 182. 
 
 affected by notice, 183. 
 
 knowledge of insolvency, 183. 
 
 knowledge of judgment, 183. 
 
 knowledge of attachment, 183. 
 
 must use ordinary diligence, 184. 
 
 notice before payment, 184. 
 
 need not have same motives as debtor, 185. 
 
 co-operation, 186. 
 
 acts of agents, 186. 
 
 intent to defeat execution, 188. 
 
 adequacy of consideration, 190. 
 
 use of debtor, 191. 
 
 resulting trust, 192. 
 
 reservation of benefit, 193. 
 
 secret trust, 194. 
 
 collusion, 196. 
 
 may give to debtor, 197. 
 
 when held as trustee for creditors, 217. 
 
INDEX. 653 
 
 [rbfbrences are to sections.] 
 
 GRANTEE.— Continued. 
 
 when voluntary not protected through innocent, 239, 
 
 240. 
 how far title is valid, 432, 433. 
 not bound by executory contract, 434. 
 not m.pari delicto, 436. 
 rights when there are several, 443. 
 need not pay notes, 444-445. 
 no defence against bona fide holder, 445. 
 remedy at law, 446. 
 no remedy in equity, 446. 
 can not enforce executory contracts, 447. 
 good title against third parties, 449, 4. 
 good title against creditors at large, 450. 
 good title against void process, 452. 
 good title against deed by debtor,, 454. 
 rights of creditors, of, 470. 
 right to profits, 475. 
 right to proceeds, 475. 
 partition by, 476. 
 redemption of property, 477. 
 dissolution of attachment, 477. 
 purchase under execution, 477. 
 right to surplus, 477. 
 rescission, 480. 
 debt not extinguished, 484. 
 void in part void in toto, 485. 
 when one is innocent, 489. 
 recovery, 490. ' 
 
 title merely voidable, 491, 492. 
 sale to bona fide purchaser, 491. 
 cannot be sued in assumpsit, 527. 
 cannot be sued in case, 528. 
 is trustee for creditors, 533. 5 7^, 631. 
 necessary party, 557. 
 answer evidence for, 567. 
 
 evidence of debt only prima facie against, 587, 
 may impeach judgment, 587. 
 grantor's declarations evidence against, 593, 594, 595, 
 
 596- 
 
654 INDEX. 
 
 [rspbrencbb are to sections.] 
 
 GRANTEE .— Continued. 
 
 may testify to his intention, 6i8. 
 
 evidence of character of, 602. 
 
 evidence in favor of, 602. 
 
 decree against grantee, 621. 
 
 not liable after surrender, 622. 
 
 liable for proceeds, 623. 
 
 liable for loss, 623. 
 
 may retain insurance, 624, see 215, note. 
 
 must account for rents and profits, 625. 
 
 computation of profits, 626. 
 
 charged with interest, 627. 
 
 no right to indemnity, 628. 
 
 can not retain moneys paid, 628. 
 
 can not set off his debt, 629. 
 
 can not use fraudulent judgment, 630. 
 
 indemnity in case of constructive fraud, 631, 634. 
 
 when transfer is suspicious, 631. 
 
 lien as partner, 632. 
 
 feme covert, 633. 
 
 allowance for improvements, 634. 
 
 expenditures offset to profits, 634. 
 
 apportionment, 635. 
 
 retain exempt property, 636. 
 
 may retain surplus, 477, 576, 638. 
 GRANTOR. See Vendor and Debtor. 
 
 failure to testify is a badge of fraud, 65. 
 
 conveyance to use of, 191, 298. 
 
 resulting trust in favor of 192. 
 
 selling as grantee's agent, 192, 194, 128. 
 
 agreement to support, 199, 200. 
 
 engagement in hazardous business, 254, 258, 262, 291. 
 
 transfer good against, 433. 
 
 rights of fraudulent, 442. 
 
 H 
 
 HAZARDOUS BUSINESS, 254, 258, 262. 
 
 grantor's engagement in is a badge of fraud, 291. 
 HEIR, bound by conveyance, 433. 
 
 fraudulent alienation of assets, 504. 
 
INDEX. 665 
 
 [rBFERBNCKS ARB to SECTIONS.] 
 
 HEIR. — Continued. 
 
 under fraudulent deed take as heir, 525. 
 
 •when executor de son tort, 525. 
 
 not necessary party, 556. 
 HERIOTS, transfer to defeat, 501. 
 HINDRANCE AND DELAY, what constitutes, 23. 
 
 refers to interposition of obstacles, 23. 
 
 mortgages and deeds of trust do not constitute, 68. 
 
 in assignment, 332. 
 HOMESTEAD. See Exempted Property. 
 
 colorable transfer of, 220. 
 
 converting assets into, 220. 
 
 after transfer, 482. 
 
 grantee may retain, 620. 
 
 wife's release of homestead as a consideration, 285. 
 HUSBAND AND WIFE. 
 
 wife's earnings, 132, 211, 226. 
 
 renunciation of future earnings, 226. 
 
 possession of wife is possession of husband, 132. 
 
 possession of property of wife conveyed before mar- 
 riage, 132. 
 
 possession by wife after separation, 132. 
 
 possession of wife under marriage settlement, 146, 147. 
 
 claim for deceit in marriage, 208. 
 
 wife may transfer property before marriage, 214. 
 
 husband's expenditures on wife's land, 218. 
 
 business in wife's name, 224, 286 
 
 may employ husband, 224. 
 
 employment must not be colorable, 224. 
 
 husband may live on wife's land, 225. 
 
 ante-nuptial settlement, i66. 
 
 wife must participate in fraud, 266. '^ 
 
 how far marriage is valuable consideration, 266-273. 
 
 transfer in pursuance of sinte-nuptial agreement, 274. 
 
 parol ante-nuptial agreement, 276. 
 
 payment of portion, 277. 
 
 deed of separation, 278. 
 
 contract between, 279. 
 
 wife's chases in action, 280-281. 
 
 wife's right to settlement, 282. 
 
656 INDEX. 
 
 [references are to sections.] 
 
 HUSBAND AND VJIP'B.— Continued. 
 separate estate, 283. 
 release of dower, 284-285-478. 
 advances by wife to husband, 286, note, 
 giving property to husband without contract, 286. 
 increase under settlement, 286. 
 rectification of defective settlement, 287. 
 purchase by feme covert, 288. 
 fraud on wife by husband, relieved against, 437. 
 dower not extinguished, 478. 
 dower after mortgage, 478. 
 
 no dower in case of purchase in name of another, 478. 
 property held as security for dower, 633. 
 may recover her own estate, 437. 
 
 wife's claim under marriage settlement is protected by 
 the statute, 504. 
 
 1 
 
 IDAHO, doctrine of as to possession, 109, note. 
 IIvIyEGAL CONSIDERATION, no consideration, 202. 
 
 illicit intercourse, 208. 
 
 claim founded on, does not constitute creditor, 501. 
 II,I,EGITIMATE CHII^DREN, are within marriage considera- 
 tion, 270, note. 
 II^LICIT INTERCOURSE, damages for good consideration, 208. 
 
 future, not good consideration, 208. 
 IIyLINOIS, doctrine of as to possession, 109 note. 
 
 as to jus disponendii 116, note. 
 IMPEACHMENT,, of judgment, 587. 
 
 IMPOSITION, on debtor, equity will relieve against, 437. 
 IMPRISONMENT for debt, origin of, 5. 
 IMPROVEMENTS, no allowance for, 634. 
 
 set-off against rents and profits, 634. 
 
 donee entitled to, 634. 
 
 assignee's expenses, 634.. 
 
 on land of another may be reached, 218. 
 
 erection of is a badge of fraud, 291. 
 INADEQUACY ofconsideration is badge of fraud, 57. 
 
 not fixed by rule of law, 57. 
 
 when must be gross, 57. 
 
INDEX. 657 
 
 [references are to sections.] 
 
 INADEQUACY.— Continued. 
 
 causes scrutiny, 57 
 
 price must be reasonable, 190. 
 
 when partially voluntary, 265. 
 
 when suspicious, 620. 
 INCUMBRANCES, assumption of is a valuable consideration; 
 
 206. 
 INDEBTEDNESS, badge of fraud, 49-247-251-291. 
 
 does not take away debtor's dominion, 49-251-292. 
 
 affects voluntary conveyances, 247-251. 
 
 of itself does not render transfer void, 251-292. 
 
 only one circumstance, 248. 
 
 must be compared with means, 248. 
 
 debtor need not be insolvent, 254. 
 
 wife's notice of, 271-272. 
 
 grantee's notice of, 183. 
 
 proof of, 584. 
 
 continuous as to subsequent creditors, 296. 
 INDEMNITY, none in case of actual fraud, 628. 
 
 none for money paid to debtor, 628. 
 
 none for money paid to creditors, 628. 
 
 in case of constructive fraud, 631. 
 INDIANA, doctrine of, as to possession, 109, note. 
 
 rule as to burden of proof in voluntary conveyances, 249, 
 note. 
 
 rule as to jus disponendi, 116, note. 
 INDORSEE, liability of is good consideration, 204, 605. • 
 INFANT, note of, good consideration, 206. 
 
 partner can make assignment, 329. 
 INJUNCTION, sale can not be enjoined, 526. 
 
 none of creditor's suit, 531. 
 INSOI/VENCY, does not defeat debtor's dominion, 15-167-179. 
 
 does not dissolve partnership, 15. 
 
 does not take away right to prefer, 167. 
 
 what constitutes, 252, note 
 
 of assignee, 354. 
 
 defeats voluntary conveyances, 252. 
 
 does not defeat assignment, 347. 
 INSOLVENT, note of, not a valuable consideration, 206, note. 
 
658 INDEX. 
 
 [rbkbrences arb to sections.] 
 
 INSOI/VENT CORPORATION, assets of are a trust fund, 169 
 
 note. 
 INTOXICATION,, evidence of grantor's, 602. 
 INTENT, FRAUDUI^ENT, what is within the statute, 20. 
 
 character of, 19. 
 
 to defraud the public, 20. 
 
 to defeat prior deeds, 20. 
 
 to defraud debtor, 20. 
 
 definition of, 21. 
 
 delay, 22. 
 
 definition of hindrance and delay, 23. 
 
 when inference of, a question of fact, 24. 
 
 fraud in law, 25. 
 
 what is constructive fraud, 25. 
 
 no difference between fraud in fact and fraud in law, 24. 
 
 legal not moral intent, 27. 
 
 how ascertained, 24. 
 
 essential to avoid conveyance, 24. 
 
 is an emotion of the mind, 41. 
 
 question of law, 25, 242. 
 
 what intent sufficient, 29. 
 
 prevention of sacrifice, 30, 27. 
 
 must be in the beginning, 33. 
 
 not accident or mistake, 31. 
 
 not question of remedy, 32. 
 
 by corporation, 35. 
 
 not merely to defeat execution, 23-170, 188, 332. 
 
 any avoids whole instrument, 34. 
 
 to hinder one creditor, 34. 
 
 differs from intent to prefer, 170. 
 
 may be secondary motive, 36. 
 
 of donor alone, 239. 
 
 in voluntary conveyances, 240. 
 
 establishment of, in voluntary conveyances, 241. 
 
 wh6n a conclusion of law, 242. 
 
 no inquiry into secret motives, 243. 
 
 against subsequent creditors, 290-291-293. 
 
 incidental delay in assignments, 330. 
 
 under assignments, 331. 
 
 secret motives, 333. 
 
INDEX. 659 
 
 [rbfbrbncbs arb to sbctions.] 
 
 INTENT, FRAVBUh^liJT.— Continued. 
 
 what is, in assignments, 334. 
 
 proof of, 590. 
 
 burden of proof, 612. 
 
 may be presumed, 613. 
 
 amount of proof, 615. 
 
 proof must be clear, 616. 
 
 same at law as in equity, 620. 
 INTERNATIONA!, I^AW, construction by lex loci, 508. 
 
 evidence b}^ lex fori, 508. 
 
 transfer of land by lex loci, 509. 
 
 personal property by place where made, 510. 
 
 statutes may regulate transfers, 511. 
 
 binding on citizens of other States, 511. 
 
 valid where made and property located, 511. 
 
 notice to debtor, 512. 
 
 where no evidence of foreign law, 513. 
 
 law of State where made governs assignments, 510, 346. 
 IOWA, doctrine of as to possession, 109, note. 
 JUS DISPOhENDI, 116, note. 
 ISSUE, to try fraud in judgment, 520. 
 
 to try fraud in execution, 521. 
 
 JOINT POSSESSION, 126. 
 
 JUDGMENT, fraudulent, void, 234-235, 520, 530, 552. 
 
 debtor may confess, 169. 
 
 for future advances, 210. 
 
 for attorney's fees, 173, note. 
 
 prior, as a consideration, 206. 
 
 grantee's title good against void, 452. 
 
 creditor must prove, 453. 
 
 lien on property transferred, 469. 
 
 against grantee no lien, 470. 
 
 purchaser must prove, ?i.72. 
 
 subsequent, will not aifect bona fide purchaser, 497. 
 
 proof of, against grantee, 584, 585. 
 
 against administrator, 585. 
 
 priority of, 469. 
 
 affect of, 469. 
 
660 INDEX. 
 
 [references are to sections.] 
 
 JUDGMENT.— Continued. 
 
 by confession, 586. 
 
 only prima facie against grantee, 587. 
 
 grantee may impeach, 587. 
 
 impeach collaterally, 520, 587. 
 
 may be set aside, 520. 
 
 issue to try fraud in, 520. 
 
 not vacated on record, 520. 
 
 equity relieves against when fraudulent, 520, 532, 552. 
 
 when will support bill in equity, 536. 
 
 kind of judgment to support bill, 543. 
 
 magistrate's judgment to support bill, 543, note. 
 
 foreign judgment, 543. 
 
 in attachment, 543. 
 
 when conclusive, 577. 
 
 priority over, equitable lien, 581, 
 
 after filing bill, is lien, 580. 
 
 no lien after title is divested, 581. 
 
 void in part is void in whole, 485. 
 
 Bona fide purchaser under fraudulent, has good 
 title, 499. 
 JURY, when fraud a question for, 24. 
 
 explanation of possession, 104. 
 
 points for, in case of possession, 113. 
 
 province of, in case of possession, 11 3. 
 
 issue for, under judgment, 520. 
 
 issue for under execution, 521. 
 JUS DISPONENDl, possession with, 116. 
 
 K 
 
 KANSAS rule as to possession, 109, note. 
 KENTUCKY rule as I0 possession, 109, note. 
 LABOR of debtor, cannot be reached, 218, 222. 
 
 L 
 
 I/ACHES, creditor bound .by, 456. 
 
 ground for refusal of relief in equity, 573 note, 
 what constitutes, 573, note, 
 assertion of claim, 573, note, 
 financial inability to sue, 573, note. 
 
INDEX. 661 
 
 [rkpkrbncbs are to sections.] 
 
 IvAND, acts of ownership badge of fraud, 62. 
 
 renting, 62. 
 
 selling, 62. 
 
 improving, 62. 
 
 possession alone not a badge of fraud, 115, 163. 
 
 possession of land as constructive possession of chat- 
 tels, 129. 
 
 husband may live on wife's, 225. 
 
 debtor's expenditures on another's, 218. 
 
 contracts relating to, 231. 
 
 transfer of governed by lex loci, 509. 
 
 delaying levy on, 519. 
 
 judgment is quasi lien on, 581. 
 
 levy on crops, 475. 
 
 levy on mesne profits, 475. 
 
 fraudulent grantee is charged with rents of, 625. 
 
 no allowance to grantee for improvements, 634. 
 
 expenditures sometimes allowed, 634. 
 
 what is sufficient lein on, 537, 539. 
 LEGISIyATURE, courts are bound by intent of, 14. 
 I/EVY, grantee's title good against void, 452. 
 
 of creditors on property, 468. 
 
 none on proceeds or mesne profits, 475. 
 
 instructions to delay, 515, 519. 
 
 neglect of sherifi" to make, 516. 
 
 what constitutes equitable, 580. 
 LEX ZOC/ controls assignment, 346, 510. 
 
 governs transfers of land, 509. 
 
 rule as to personalty, 510. 
 
 See also International Law. 
 IyIENS, assignment of, 232. 
 
 priority of, 469, 581. 
 
 after transfer, 469. 
 
 before transfer not affected, 484. 
 
 subsequent, not notice to purchaser, 497. 
 
 under execution, 497. 
 
 necessary to sustain bill, 535. 
 
 what sufficient to sustain bill, 536-537-538- 
 
 what sufficient as to land, 537. 
 
 as to personalty, 538. 
 
662 INDEX. 
 
 [rEPBRENCKS ABE TO SECTIONS.] 
 
 I/IENS. — Continued. 
 
 as to both, 539. 
 
 return of nulla bona, 540. 
 
 not necessary to reach choses in action, 540. 
 
 not necessary on equitable claims, 544. 
 
 not necessary after death of debtor, 545. 
 
 equitable, by filing bill, 580. 
 
 service of process necessary to, 580. 
 
 equitable, subject to others, 581. 
 
 judgment after filing bill, 581. 
 I,IFE INSURANCE policy, within statute, 215, see note. 
 
 liability of grantee on, 627. 
 WFE INTEREST may be reserved, 193. 
 I/IMITATIONS, defence of may be waived, 203. 
 
 must be pleaded, 570. 
 
 to demand or title, 570. 
 
 no plea after defence, 570. 
 
 one creditor may plead to others, 570. 
 
 objection to subsequent claims, 570. 
 
 runs till filing of claims, 570. 
 
 judgment before, bar of, 570. 
 
 judgment after, bar of, 561, 570. 
 
 as to claim to title, 571. 
 
 run from record, 571. 
 
 run from change of possession, 571. 
 
 when statute begins to run, 571, 572, 573. 
 
 equity not bound by, 573. 
 
 property not liable to execution, 572. 
 
 administrator, 572. 
 
 only from discovery, 573. 
 
 suspicion not discovery, 574. 
 
 information to put on inquiry, 574. 
 
 averment in bill to avoid, 560. 
 I/OANS, from wife to husband, 286, note. 
 
 stipulation for in assignment, 377. 
 
 from debtor to grantee, 627. 
 I/OUISIANA doctrine of as to possession, 109, note. 
 
 rule as to attacking fraudulent transfers, 530, note. 
 I^UNATIC, assignment of is merely voidable, 328. 
 
INDEX. 663 
 
 [referencbs are to sections.] 
 M 
 
 MAINE, rule as to possession, 109, note. 
 
 rule as to jus disponendi, 116, note. 
 MANCIPATIO or MANCIPIUM, 2. 
 MANUFACTURE, possession of goods retained for, 141. 
 MARRIAGE, a valuable consideration, 266, 498, 605. 
 
 must be specific marriage, 267. 
 
 contemporaneous gift, 268. 
 
 cannot be made the means of fraud, 271. 
 
 is emancipation of minor, 227. 
 MARRIAGE CONSIDERATION, extent of, 270, note. 
 
 to collaterals, 270. 
 
 to children, 270. 
 
 to illegitimate children, 270, note. 
 
 runs through whole settlement, 270. 
 
 will not support fraudulent settlement, 271. 
 MARRIAGE SETTl^EMENTS, possession under, 146. 
 
 founded on valuable consideration, 266, 498. 
 
 both parties must have notice of fraud, 266. 
 
 must relate to specific marriage, 267. 
 
 contemporaneous gift, 268. 
 
 statement in articles, 269. 
 
 extends to children, 270, note. 
 
 collaterals, 270, note. 
 
 mere knowledge of indebtedness does not avoid settle- 
 ment, 271. 
 
 inference of notice from facts, 272. 
 
 extravagant, 272. 
 
 how far valuable, 273. 
 
 must be reasonable, 273. 
 
 in pursuance of ante-nuptial agreement, 274. 
 
 must conform to articles, 275. 
 
 proof of articles, 275. 
 
 parol void, 203, 276. 
 
 marriage not part performance, 276, note. 
 
 misrepresentation, 276. 
 
 written acknowledgment, 276. 
 
 in consideration of previous marriage, 276. 
 
 equity will sometimes enforce parol, 276, note. 
 
664 INDEX. 
 
 [referbncbs are to sections.] 
 
 MARRIAGE SETTLEMENTS— Continued. 
 
 for portion, 277. 
 
 deed of separation, 278. 
 
 covenant of indemnity, 278. 
 
 contract between husband and wife, 279. 
 
 personal property not consideration, 280. 
 
 choses in action reduced, 281. 
 
 chose s in action, 281. 
 
 of property where right of settlement, 282. 
 
 of property where right of settlement, must be reason- 
 able, 282. 
 
 for separate estate, 283. 
 
 for right of dower, 284. 
 
 when no contract, 286, notes. 
 
 covers increase, 286. 
 
 defective, may be rectified, 287. 
 
 purchase by wife, 288. 
 
 claim under is protected by statute, 504. 
 MARRIED WOMANj*note of as consideration, 206. 
 
 earnings of, 226. 
 
 see also Husband and Wife. 
 MARYI^AND, rule as to possession, log, note. 
 
 as to jus disponendi, 116, note. 
 MASSACHUSETTS, rule as to possession, 109, note. 
 
 jus disponendi, 116, note. 
 MESNE PROFITS, See Account, Profits, I^and, I^evy. 
 MICHIGAN, rule as to possession, 109, note. 
 
 jus disponendi, 116, note. 
 MINNESOTA, rule as to possession, 109, note. 
 
 jus disponendi, 116, note. 
 MINOR, note of as consideration, 206. 
 
 earnings of, 211, 227. 
 
 may make assignment, 329. 
 
 see also Infant. 
 MISSISSIPPI, rule as to possession, 109, note. 
 
 jus disponendi, 116, note. 
 MISTAKE, not fraud, 31, 243. 
 
 no proof that fraudulent deed was made by, 31. 
 
 correction of, 442. 
 MODE OF TRANSFER, immaterial, 230. 
 
INDEX. 665 
 
 [refkrbnces are to sections.] 
 
 MONTANA, rule as to possession, 109, note. 
 
 jus disponendi, 116, note. 
 MORAI, OBLIGATION, will sometimes support transfer, 203. 
 
 not generally a consideration, 263. 
 MORTGAGES, fraudulent deed as, 265, 486, 228, 631, 634. ' 
 
 absolute deed for, 55, 194, note. 
 
 absolute deed with secret trust, 55. 
 
 to cover property, 58. 
 
 excess of property, 58. 
 
 length of duration, 59. 
 
 retention of note, 63. 
 
 delay in enforcing, 68. 
 
 possession under, badge of fraud, 114, 116. 
 
 selling for debtor's benefit, 116, note. 
 
 parol power to sell, 117. 
 
 sale contrary to purpose of, 117. 
 
 power to sell as agent, 118. 
 
 ofperishable articles, 119. 
 
 for sustenance of mortgage property, 119. 
 
 delivery before execution, 120. 
 
 how far mortgagee's possession cures fraud, 120. 
 
 possession under, 142. 
 
 stipulation for possession, 143. 
 
 after condition broken, 143, 145. 
 
 possession after purchase of right of redemption, 145. 
 
 assignment of, for money paid by debtor, 217. 
 
 restored when transfer of equity of redemption void, 
 130, 484. 
 
 assignment of mortgage by debtor, 232. 
 
 differ from assignments, 167, 303, 304. 
 
 for future advances, 210. 
 
 fraudulent does not extinguish debt, 484. 
 
 no priority of mortgage notes, 500. 
 
 fraudulent sale under, 235. 
 
 to secure debt of another not voluntary, 205. 
 
 fraudulent, may be enforced at law, 446. 
 
 fraudulent, not enforced in equity, 446. 
 
 fraudulent, debtor may redeem from, 442. 
 
 fraudulent, notes not enforcible, 443. 
 
 when purchaser may contest, 472. 
 
666 INDEX. 
 
 [refbrences are to sections.] 
 
 MORTGAGES.— Cotiiinued. 
 
 assignee may sell subject to, 473. 
 
 grantee can not claim money paid for, 628. 
 MORTGAGOR, in possession of personally, 109, et seq. 
 
 when may retain possession, 193. 
 MOTIVES, of benevolence, 141. 
 
 legal not moral intent, 27. 
 
 fraud does not imply corrupt, 27. 
 
 secret, in preference immaterial, 171, 375. 
 
 result in proper action not bad, 171, 185. 
 
 inducement to assignment, 333. 
 
 threats In preferences, 375. 
 
 caprice, 375. 
 
 N 
 
 NEBRASKA, rule as to possession, 109, note. 
 
 rule as Xo jus disponendi, 116, note. 
 NEVADA, rule as to possession, 109, note. 
 
 rule as Xa jus disponendi, 116 note. 
 NEW HAMPSHIRE.rule as to possession, 109, note. 
 
 rule as to jus disponendi, 116, note. 
 NEW JERSEY, rule as to possession, 109, note. 
 
 jus disponendi, 116, note. 
 NEW YORK, decisions on possession, 98, 99, 100, 109, note. 
 
 code enactment as to possession, loi. 
 
 rule as to jus disponendi, 116, note. 
 
 rule as to notice, 184, note. 
 
 rule as to powers and appointments, 219, note. 
 
 burden of proof in voluntary conveyances, 249, note. 
 
 assignments by corporations, 328, note. 
 
 rule as to limitations, 571, note. 
 t<rEXUM, what is, i. 
 NEGOTIABLE PAPER, in hands of assignee, 328, note. 
 
 see also Choses in Action, and Notes. 
 NORTH CAROLINA, rule as to possession, 109 note. 
 
 rule as \.q jus disponendi, 116, note. 
 NORTH DAKOTA, rule as to possession, 109, note, 
 
 rule as to jns disponendi, 116, note. 
 NOTES of grantor are evidence to prove debt, 584. 
 
 evidence to show consideration, 608. 
 
INDEX. 667 
 
 [rbfbrbnces are to sections.] 
 
 NOTES.— Continued. 
 
 see also Choses in Action, and Negotiabi<e Paper. 
 NOTICE in case of possession, 135, 497. 
 
 makes sale void, 183-300. 
 
 of insolvency, 183. 
 
 of judgment, 183. 
 
 of threatened attachment, 183. 
 
 knowledge not necessary, 184. 
 
 to bailee, 156. 
 
 constructive, 184. 
 
 actual necessary in some states, 184, note. 
 
 the New York rule 184, note. 
 
 to put on inquiry, 184.. 
 
 inferred from relationship, 184. 
 
 before payment, 184. 
 
 not of full extent of fraud, 184. 
 
 not necessary to donee, 181. 
 
 of intent to defeat execution, 188. 
 
 to wife in nuptial settlements, 266-272. 
 
 to assignee, 337. ' 
 
 to creditor before confirmation, 45(5, 459, 463. 
 
 conduct of creditor after notice, 456. 
 
 to purchaser makes deed void, 493. 
 
 before payment by purchaser, 493. 
 
 to put purchaser on inquiry, 491. 
 
 apparent on face of papers, 493. 
 
 to agent is to principal, 186, 494. 
 
 of subsequent judgment, 497. 
 
 pendente lite, 497. 
 
 as affecting laches and limitations, 573, 574. 
 NOTORIETY, of change of possession, 148. 
 
 seizure not, 148. 
 
 sale at public auction, 148. 
 
 sale under execution, 149. 
 
 who may purchase at auction, 149. 
 
 possession after sale at auction, 149. 
 
 public sale by private agreement, 150. 
 NULLA BONA, return of, when necessary, 540, 541. 
 
 when may be dispensed with, 540, 541. 
 NUPTIAI^ SETTLEMENT. See Marriage Settlement. 
 
668 INDEX. 
 
 [referbncks are to sections.] 
 
 o 
 
 OHIO, doctrine of as to possession, 109, note. 
 
 jus disponendi, 116, note. 
 OKI/AHOMA, rule as to possession, 109, note. 
 
 jus disponendi, 116 note. 
 ONUS PROBANDI, in case of possession, iii. 
 
 on creditor who attacks a preference, 177. 
 
 on donee to show good faith, 249, 256. 
 
 on wife who purchases property to show consideration, 
 288. 
 
 on subsequent creditors to show fraud, 291. 
 
 on creditor who assails assignment, 342. 
 
 of solvency of assignor, 351. 
 
 of fraud generally, 611. 
 OREGON, rule as to possession, 109, note. 
 
 rule as Xojus disponendi, 116, note. 
 
 rule as to constructive notice, 184, note. 
 ORIGIN, of commerce, i. 
 
 of executory contracts, 2. 
 
 of imprisonment for debt, 5. 
 
 of English law of fraudulent conveyances, 8. 
 OUTI^AWRY, fraudulent judgment of, within the statute, 230. 
 
 PARADE OF HONESTY, is a badge of fraud, 64. 
 PARENT, entitled to child's earnings, 211, 227. 
 
 contract for emancipation, 211. 
 
 duty to support child, 227. 
 
 may emancipate child, 227. 
 
 marriage is emancipation, 227. 
 PARI DELICTO, rule as to parties not in, 436, 437, 438, 439, 
 
 440. 
 PAROI^ AGREEMENTS, for marriage void, 203-276. 
 
 effect of marriage, 276. 
 
 that grantor may repurchase, 194, 198. 
 
 representation, 276. 
 
 written acknowledgement, 276. 
 PAROIy POWER TO SEI.I/, in mortgages, 117. 
 PARTICIPATION, of grantee in fraud, 183, 184. 
 
 of wife in fraudulent marriages settlement, 272. 
 
INDEX. 669 
 
 [references are to sections.] 
 
 PARTICIPATION.— Continued. 
 
 of assignee in fraud, 387. 
 
 of subsequent creditors in debtor's property, 297. 
 PARTIES, transfer good between, 432. 
 
 who may sue, 534, 553. 
 
 assignee in bankruptcy, 553. 
 
 creditors after bankruptcy, 553. 
 
 creditors may make assignee defendant, 553. 
 
 sheriff, 554. 
 
 receiver, 454. 
 
 purchaser, 554. 
 
 joinder of creditors, 555. 
 
 joinder of sheriff and creditor, 555. 
 
 joinder of creditor and administrator, 555. 
 
 joinder of assignor and assignee of judgment, 555. 
 
 joinder of several grantees, defendants, 556, 557. 
 
 joinder of grantees claiming different portions, 557. 
 
 when one creditor entitled to further belief, 555. 
 
 on behalf of all who come in, 555. 
 
 receiver as party defendant, 556. 
 
 debtor, 556. 
 
 debtor's administrator, 556. 
 
 debtor's heirs, 556. 
 
 grantee, 557. 
 
 person through whom title has passed, 557. 
 
 having prior interests, 557. 
 
 grantor of purchase in the name of another, 557. 
 
 ^UTchasex pendente lite, 557. 
 
 indorser, 551. 
 
 joint debtors, 556. 
 PARTITION, by grantee, 476. 
 PARTNERS, vendor may be member of firm, 128. 
 
 possession of partnership property, 130. 
 
 transfer to pay separate debt, 209. 
 
 division without transfer, 209. 
 
 firm debt contracted in name of partner, 209. 
 
 transfer of firm property to one partner, 209. 
 
 transfer of separate property to pay firm debts, 209- 
 
 347-370. 
 dissolution of partnership, 233-369. 
 
670 INDEX. 
 
 [references are to sections.] 
 
 PARTNERS.— Continued. 
 
 assignment of firm property to pay separate debts, 369. 
 
 assignment to pay debt of firm of which assignor is 
 partner, 369. 
 
 partnership creditors no right of preference, 233. 
 
 may assign, 329. 
 
 form of assignment by, 317. 
 
 dormant partner, 329. 
 
 absent partner, 329. 
 
 surviving partner, 329. 
 
 partnership assignment need not convey individual 
 property, 347. 
 
 partner may not be assignee, 353. 
 
 assignment to pay separate debts when separate property 
 assigned, 369. 
 
 assignment after dissolution, 369. 
 
 assignment of separate property to pay firm debts, 370. 
 
 distribution of surplus among separate creditors, 371. 
 
 reservation of surplus in firm assignment, 385-383-384. 
 
 no distinction between partnership and individual 
 creditor, 536. 
 
 partner remitted to his lien, 632. 
 
 insolvency does not dissolve partnership, 15. 
 PENDENCY OF SUIT, is a badge of fraud, 50. 
 
 does not invalidate preference, 168. 
 PENNSYIyVANIA, doctrine as to possession, 109, note. 
 
 as to conditional sales, 138, note. 
 PERISHABIvE ARTICLES, mortgage of, 119. 
 PERSONALTY, possession of, 69, 72, et seq., 109. 
 
 judgment and execution binds, 538, 582. 
 
 see Chattels. 
 PLEA for want of lien, 551. 
 
 for want of proper parties, 562. 
 
 in bar of discovery, 563. 
 
 to protect from criminal prosecution, 564. 
 
 of limitations, 570. 
 
 none after defense, 570. 
 
 to validity of other claims, 570. 
 
 title to property, 571. 
 
INDEX. 671 
 
 [references are to sections.] 
 
 PONDEROUS ARTlCIvES, change of possession of, 151, 152, 
 
 153- 
 PORTION, good consideration for settlement, 277. 
 
 paid after settlement, 277. 
 
 security of sufficient, 277. 
 POSSESSION of land with acts of ownership, 129. 
 
 a badge of fraud, 69, 72. 
 
 to rule that possession is fraud, per se, 69, note. 
 
 depends on intent, 70. 
 
 right to leave with vendor, 71. 
 
 tends to deceive, 72. 
 
 not conclusive, 73. 
 
 caveat creditor, 74. 
 
 rule of policy, 75. 
 
 public policy, 75-79-80. 
 
 rights of others, 76-81. 
 
 explanation for jury, 82-83. 
 
 court not to determine sufficiency of explanation, 84. 
 
 review of authorities, 85-86-87-88^89-90-91-92-93-94-95- 
 96. 
 
 summary of English authorities, 97. 
 
 New York decisions, 98-99-100, 102, 103, 104, 105, 106, 
 107. 
 
 New York Code, loi. 
 
 citation of authorities, 109, see notes. 
 
 what requisite, 1 10. 
 
 burden of proof, 1 1 1 . 
 
 point of inquiry, iii. 
 
 evidence to explain, in. 
 
 consideration, 112. 
 
 province of jury, 113. 
 
 to what transactions applies, 114. 
 
 construction not sufficient, no. 
 
 what constitutes change of possession, 125. 
 
 of land, 129, 115. 
 
 with jus disponendi, 116. 
 
 mortgage with power to sell, 123. 
 
 mortgage with parol power to sell, 117. 
 
 mortgage with power to sell as agent, 118. 
 
 mortgage of perishable articles, 119. 
 
672 INDEX. 
 
 [refbrbnces are to sections.] 
 
 POSSESSION.— Continued. 
 
 when perishable articles consumed for benefit of prop- 
 erty, 119. 
 when transfer valid, 120. 
 fraud /(?> se, rule of policy, 121. 
 excludes all evidence, 121. 
 no privity of vendee, 121. 
 what change necessary, 121. 
 symbolical delivery not sufficient, 122. 
 change must be continuous, 123, 124. 
 constructive possession not sufficient, 122. 
 subsequent return of property, 124. 
 must follow transfer, 122. 
 a question of law, 125. 
 when submitted to jury, 125. 
 jury to decide conflict of testimony, 125. 
 evidence of transfer not excluded, 125. 
 concurrent possession, 126, 128. 
 must be observable, 127. 
 employment of vendor as agent, 128. 
 change of sign, 128. 
 when joint, collusive, 128. 
 when accompanied by transfer of land, 129. 
 surrender of lease, 129. 
 taking a lease, 129. 
 property on farm, 129. 
 steam engine, 129. 
 exempt property, 130. 
 equity of redemption," 130. 
 after sale by vendee, 131. 
 hy feme covert, 132. 
 
 of property conveyed before marriage, 132. 
 of property after separation, 132. 
 sufficiency of, varies with each case, 133. 
 of property, in possession of vendee, 133. 
 removal of owner, 133. 
 when vendor accompanies goods, 133. 
 previous ownership, 134. 
 effect of consent, 135. 
 effect of notice, 135. 
 
INDEX, ' 673 
 
 [rBPBRSncbs are to sections.] 
 
 POSSESSION.— Continued. 
 
 effect of knowledge, 135. 
 
 nominal party, 136. 
 
 transfer to debtor, 137. 
 
 conditional sale to debtor, 138, 141. 
 
 special exceptions, 139. 
 
 when parties reside together, 140. 
 
 mere convenience not sufficient, r4i. 
 
 agreement to pay for use, 141. 
 
 must be consistent with title, 142. 
 
 under a mortgage, 142, 143. 
 
 under deeds of trust, 144. 
 
 after condition broken, 145. 
 
 after purchase of equity of redemption , 145. 
 
 under marriage settlements, 146. 
 
 purchases with settled funds, 147. 
 
 purchases with settled funds of husband's goods, 147. 
 
 purchasers with, tjnder execution, 147. 
 
 public sales, 148. 
 
 mere seizure, 148. 
 
 sale under deed of trust, 148. 
 
 sale under warrant of distress, 148 . 
 
 sale under mortgage, 148 . 
 
 sale under execution. 149. 
 
 stranger may purchase, 149. 
 
 public sale by private agreement, 150. 
 
 when change impossible, 151. 
 
 ponderous articles, 152. 
 
 what change of ponderous articles necessary, 152. 
 
 delivery of brick, 152-153. 
 
 delivery of rafts, 152-153. 
 
 delivery of timber, 152-153. 
 
 delivery of key, 153. 
 
 delivery of growing crops, 151-153. 
 
 when goods are remote, 154. 
 
 ship at sea, 154. 
 
 goods at sea, 154. 
 
 vendee not bound to follow vessel, 154. 
 
 delay to take vessel, 154. 
 
 when vendor only has constructive possession, 155. 
 
674 INDEX. 
 
 [rbferences are to sections.] 
 
 TOBSEiSSlO'N.— Continued. 
 
 goods in a warehouse, 155. 
 
 goods in hands of bailee, 156. 
 
 goods in hands of servants, 157. 
 
 of property subject to rights, of third parties, 158. 
 
 of goods upon the land of another, 159. 
 
 change prior to execution, 160. 
 
 delay in change of, a badge of fraud, 160. 
 
 change after death of vendor, 160. 
 
 change as to part, 161. 
 
 use of part is a badge of fraud, 161 . 
 
 possession under assignment, 357. 
 
 declarations of parties in, 600. 
 
 c hoses in action, ■l()'2.. 
 
 stocks, 162. 
 
 prior and subsequent creditors, 162-300. 
 
 land, 163. 
 POST-NUPTIAI, SETTIvEMENT, in pursuance of ante- 
 nuptial agreement, 274. 
 
 must conform to articles, 275. 
 
 recital of articles no evidence, 275. 
 
 parol agreement void, 276. 
 
 eflfect of marriage, 276. 
 
 effect of representation, 276. 
 
 effect of written acknowledgment, 276. 
 
 for portion, 277. 
 
 deed of separation, 278. 
 
 for wife's property, 280. 
 
 c hoses in action, 281. 
 
 where wife has right of settlement, 282. 
 
 wife's separate estate, 283. 
 
 release of dower, 284-285. 
 
 agreement necessary, 286. 
 POSTPONMENT of creditors, 376, 377. 
 
 POWER OF APPOINTMENT, creditors may reach property 
 voluntarily appointed, 219. 
 
 when general, 219. 
 
 when not general, 219. 
 
 the New York rule, 219. 
 
 charge on land, 219. 
 
INDEX. 675 
 
 [referbnces are to sections.] 
 
 POWER OF APPOINTMENT.— G7«ft««(f^. 
 
 makes donee owner, 219. 
 
 to take effect after donor's death, 219-298. 
 
 in assignment, 316. 
 POWER OF REMOVAI, of assignee, 353, 359. 
 POWER OF REVOCATION renders assignment void, 359. 
 
 renders transfer void, 198. 
 
 not make void as to subsequent creditors, 298. 
 
 power to make loans equivalent to, 359. 
 
 power to sell equivalent to, 116. 
 
 to declare uses subsequently, 360. 
 
 to affix schedules subsequently, 361. 
 
 to another, 362. 
 POWER OF SALE, in mortgages, 116, note. 
 
 effect of parol ,117. 
 
 as mortgagee's agent, 118. 
 PRE-EMPTION RIGHT, not within the statute, 221. 
 PRE-EXISTING DEBT, as a consideration, 204, 164. 
 PREFERENCES, reasons for validity of, 164. 
 
 consequence of ownership, 165. 
 
 not favorable to commerce, 166. 
 
 not fraudulent, 167. 
 
 not invalidated by insolvency, 167. 
 
 or by pressure from preferred creditor, 167, note. 
 
 when others lose their debts, 168. 
 
 mode of, 169. 
 
 not invalidated by absconding of debtor, i6g. 
 
 to defeat an execution, 23-170. 
 
 secret motives immaterial, 171. 
 
 must be bona fide, 172. 
 
 tainted by secret trust, 174. 
 
 antecedent agreement to prefer, 174, note. 
 
 gift by creditor, 175. 
 
 when creditor may purchase, 178. 
 
 in assignments, 372-373-374. 
 PRIOR DEBTS, subsequent creditors must show existence of, 
 
 297. 
 PRIOR INTERESTS, not extinguished by fraudulent convey- 
 ance, 484. 
 
676 INDEX. 
 
 fRBFERENCES AR.B TO SECTIONS.) 
 
 PRIORITY of liens, 469. 
 
 of judgments, 469. 
 
 established by decree, 578. 
 PROCEEDS of fraudulent transfer, acceptance of, 458. 
 
 are trust fund for creditor's in grantee's hands, 576, 217, 
 625. 
 
 of property not liable to levy, 475. 
 PROCESS, creditor must have, 450, 451. 
 
 warrant of distress, 452. 
 
 attachment, 452. 
 
 must be valid, 452. 
 
 void renders creditor trespasser, 452. 
 
 proof of, 453. 
 PROFITS, debtor cannot accumulate, 222, 223. 
 
 business in wife's name, 224. 
 
 not liable to levy, 475. 
 
 grantee must account, 625, 634. 
 
 computed from transfer, 626. 
 
 from improvements, 626, 634, notes. 
 
 amount of, 627. 
 
 set-off against improvements, 629. 
 PROPERTY, what within the statute, 215. 
 
 c hoses in action, 216. 
 
 purchase in the name of another, 217. 
 
 expenditures upon another's land, 218. 
 
 exempt, 220. 
 
 power of appointment, 219. 
 
 debtor's labor, 222. 
 
 accumulation of earnings, 223. 
 
 business in wife's name, 224. 
 
 wife's earnings, 226. 
 
 child's earnings, 227. 
 
 emancipation of child, 227. 
 
 seat in stock exchange, 215, note. 
 
 life insurance policy, 215, note. 
 
 expectancy, 215, note. 
 PUBWC SAIvE, possession after, 148, 149. 
 
 by private agreement, 150. 
 
 purchase at, with debtor's money, 236. 
 
INDEX. 677 
 
 [bbperknces arb to sections.] 
 
 PUBIvIC SA.'LS,.— Continued. 
 
 fraudulent, 236, 237. 
 
 insufficient advertisement, 237. 
 PURCHASE, in name of another, within the statute, 469, 533. 
 
 grantee is trustee for creditors, 217, 625, 576. 
 
 may be reached in equity, 217, 535. 
 
 may be reached at law, 217. 
 
 creditor must have judgment, 535. 
 
 under execution, 235. 
 
 by creditor, 178. 
 
 by wife, 288. 
 PURCHASE MONEY, notice before payment of, 184. 
 PUCHASER BONA FIDE. See Bona Fide Purchaser. 
 PURCHASER UNDER EXECUTION has the rights of 
 creditor, 471, 506. 
 
 obtains good title, 471. 
 
 inadequacy, 471. 
 
 proof of title, 472., 
 
 subject to liens, 472. 
 
 of equity of redemption when mortgage is fraudulent, 
 472. 
 
 defects in title not good against, 472. 
 
 may file bill in equity, 555. 
 
 against grantee, gets good title, 470. 
 
 dates from sale, 497. 
 
 postponed to unrecorded deed, 497. 
 
 good against subsequent purchaser, 497. 
 
 unrecorded deed, 497. 
 
 R 
 
 RATIFICATION by creditor, 455. 
 party to deed, 455. 
 notice, 456. 
 acquiescence, 456. 
 knowledge requisite, 456. 
 effect of negligence, 456. 
 expressed contract, 457. 
 receiving dividend, 458. 
 assignees receiving money, 458. 
 advice, 455. 
 
678 INDEX. 
 
 [references are to sections.] 
 
 RATIFICATION.— Continued, 
 
 receiving note, 458. 
 
 subsequent indebtedness, 462. 
 
 estoppel, 458. 
 
 provision in assignment, 458. 
 
 attachment, 460. 
 
 receiving money under execution, 460. 
 
 policy of insurance, 460. 
 
 sale renders null, 460. 
 
 return of property, 464. 
 
 estoppel extends to privies, 455. 
 RECEIVKR, when appointed for insolvent debtor, 526. 
 
 when conveyance binding on, 433, 504. 
 RECITAI^S OF CONSIDERATION presumptive, 603. 
 
 weak evidence, 603. 
 
 when proof of consideration material, 604. 
 
 additional consideration, 605. 
 
 consideration from other parties, 606. 
 
 can not be varied, 609. 
 
 in marriage settlement, 275. 
 RECITALS, FAI.se, a badge of fraud, 54. 
 
 absolute deed for mortgage, 55. 
 
 right to repurchase, 55. 
 
 false statement of consideration, 56. 
 RECONVEYANCE good against creditors of grantee, 203. 
 
 stipulation for, 198. 
 
 by parties, 480. 
 
 by administrator, 482. 
 
 as a consideration, 448. 
 
 grantee is bound by, 448. 
 
 grantor cannot general compel, 435, 
 
 when grantor can compel, 435, 436, 437. 
 
 when parties are not in pari delicto, 435,436,437. 
 
 grantee not liable after, 622. 
 RECORD. See Registration. 
 
 RECOVERY fraudulent binds those in remainder, 49.0 
 REGISTRATION, omission of, is badge of fraud, 52. 
 
 does not render a fraudulent deed valid, no, note, 293. 
 
 subsequent judgments, 497. 
 
 omission by purchaser, 497. 
 
INDEX. ' 679 
 
 [references are to sections.] 
 
 REGISTRATION.— Continued. 
 
 purchase in the name of another, 497. 
 
 is substitute for possession, no note. 
 
 when unnecessary, no, note. 
 
 effect of when mortgagee removes property no, notes. 
 
 effect of misconduct of recording officer, no, note. 
 ' of conditional sales, 138, note. 
 
 of assignment, 325. 
 
 necessary to secure benefit of limitations, 571. 
 REIMBURSEMENT none of consideration, 628. 
 
 mone}' paid to debtor, 628. 
 
 money paid to creditors, 628. 
 
 money paid to extinguish mortgage, 628. 
 
 in case of constructive fraud, 631. 
 
 expenditures, 634. 
 
 improvements by donee, 634. 
 REI.ATIONSHIP, is not a badge of fraud, 67. 
 
 suspicious, 67. 
 
 what raises suspicion, 67. 
 
 notice inferred from, 184. 
 REI/ATIVE, may be assignee, 353. 
 RELEASE, debt discharged by, not good consideration, 203. 
 
 of dower, 284, 285. 
 
 of homestead right, 285. 
 
 assignments exacting, void, 413. 
 
 form of, 430. 
 
 partner may execute, 430. 
 
 when creditors not bound by, 431. 
 REMEDIES against fraudulent judgment, 520. 
 
 against fraudulent execution, 521. 
 
 against fraudulent attachment, 522. 
 
 against fraudulent executor de son tort, 523. 
 
 issue to try, 520-521. 
 
 no injunction to prevent sale, 526. 
 
 assumpsit, 527. 
 
 action on the case, 528. 
 
 change of, 529. 
 
 action at law, 530. 
 
 issue in action at law, 531. 
 
 bill in equity, 532. 
 
680 INDEX. 
 
 [refbrbncbs are to sections.] 
 
 REMEDIES . — Continued. 
 
 grantee is trustee for creditors, 533. 
 
 when no remedy at law, 533-534' 
 
 creditor may select the forum, 531. 
 
 purchases in name of another, 531, 217, notes. 
 
 choses in action, 534. 
 
 stock, 534. 
 
 when creditor must have lien, 535., 
 
 what lien sufficient, 536-537. 
 
 return of execution, 540-541. 
 
 second execution, 542. 
 
 kind of judgments, 543. 
 
 equitable demand, 544. 
 
 after death of debtor, 545-547-548. 
 
 in equity against executors de son tort, 546. 
 
 administrator, 548, 
 
 non-residents, 549. 
 
 when no relief at law, '550. 
 
 of subsequent creditors, 297. 
 
 after bankruptcy, 553. 
 
 by receivers, 554. 
 
 by assignee, 554. 
 
 by purchaser, 554. 
 
 creditor must have legal process, 450. 
 
 warrant of distress, 452. 
 
 attachment, 452. 
 
 void process, 452. 
 RENT, collecting, a badge of fraud, 62. 
 
 paying, a badge of fraud, 62. 
 
 nominal, a badge of fraud, 62. 
 REPRESENTATIONS, parol, in marriage contract, 276. 
 
 as to subsequent creditors, 301. 
 
 false, to debtor, 437. 
 
 false, claim for within the statute, 503. 
 RESCISSION, of fraudulent contract, 480, 481. 
 RESERVATION. See Benbkit. 
 
 RESIDUARY INTERESTS, reservation of in assignment, 383. 
 RESUIvTiNG TRUST, 192, 217, 218. 
 RES GEST^, admissible, 593, 601. 
 REVOCATION. See Power of Revocation. 
 
INDEX. 681 
 
 [rbpbrencbs are to sections.] 
 
 RHODE ISI/AND, rule as to possession, 109, note, jus dispo 
 
 nendi, 116, note. 
 ROMAN IvAW, of debtor and creditor, 3. 
 of fraudulent conveyances, 7. 
 
 SACRIFICE, intent to prevent in assignment, 335, 350. 
 SAI/E, conditional, see Conditional Sale, 
 
 to pay debts, 167. 
 
 under fraudulent mortgage. 
 
 on credit, 191, 382. 
 
 under fraudulent mortgage, 235. 
 
 under fraudulent attachment, 235. 
 
 under fraudulent judgment, 235. 
 
 public. See Public Sale. 
 
 under execution, as to possession, 149. 
 
 of uncoUectable demands, 400. 
 
 equity may direct, 576. 
 SALE UNDER ASSIGNMENT, 382. 
 
 delay in, 389. 
 
 illegal power, 390. 
 
 delay of, must be reasonable, 392. 
 
 without delay, 393. 
 
 discretion of assignee, 394. 
 
 at public, 395. 
 
 at private, 395. 
 
 at auction, 395. 
 
 completing manufactures, 395. 
 
 in ordinary course of business, 395. 
 
 on credit, 396. 
 SCHEDUI/ES need not be annexed to assignment, 319. 
 
 need not give details, 319. 
 
 need not estimate value, 319. 
 
 need not name creditors, 320. 
 
 need not mention amount due, 320. 
 
 creditors may place their amounts on, 320. 
 
 omission of, a badge of fraud, 321. 
 SCHEDUI^ES IN ASSIGNMENT, form of, 317. 
 
 certainty in description, 317. 
 
 made essential by reference, 317. 
 
682 INDEX. 
 
 [refbeences are to sections.] 
 
 SCHEDUI.es in ASSIG'NM-E^r.— Continued. 
 
 of debts, 319. 
 
 description of debts, 320. 
 
 omission is a badge of fraud, 321. 
 
 subsequent annexation, 320-361. 
 
 subsequent, giving preferences, 362. 
 SECRECY a badge of fraud', 51-291. 
 
 not conclusive, 51. 
 
 concealment of purchase, 51. 
 
 concealment of deed, 52. 
 
 omission to record deed, 52. 
 
 agreement to conceal, 52. 
 SECRET AGREEMENT to prefer creditors, 174, note. 
 SECRET TRUST, evidence, of, 592. 
 
 origin of, 11. 
 
 a badge of fraud, 53. 
 
 false recitals, 54. 
 
 absolute deed as mortgage, 55, 194, note. 
 
 right to repurchase, 55. 
 
 false consideration, 55. 
 
 vitiates preference, 174. 
 
 consideration for preference, 174. 
 
 vitiates transfer, 191-194, 195. 
 
 fictitious consideration, 196, 245, 298, 299, 300. 
 SEDUCTION, damages for are good consideration, 208. 
 SEPARATE ESTATE, of wife a good consideration, 283. 
 SEPARATION, good consideration, 278. 
 
 form of contract, 278. 
 
 covenant of indemnity, 278. 
 
 omission of covenant, 278. • 
 
 omission of trustee to execute, 278. 
 SEQUESTRATION, transfer to defeat is fraudulent, 503. 
 SERVANT, possession by, 157. 
 SERVICES, between members of same family as consideration, 
 
 211. 
 
 of wife, 211. 
 
 of children, 211. 
 SET-OFF, creditor cannot claim, 475, 629. 
 SHERIFF, within the statute, 504. 
 
 may file bill, 554. 
 
INDEX. 683 
 
 [references are to sections.] 
 
 SHERIFF.— Continued. 
 
 may unite with creditor, 553. 
 
 must be impartial, 521. 
 
 notice to deputy, 521. 
 
 may allow debtor to use property, 517. 
 SHERIFF'S SAI,E, when void, 194. 
 SHIP, sale of, at sea, 154. 
 
 vendee need not follow, 154. 
 
 vendee must use reasonable diligence, 154. 
 
 no agent at home port, 154. 
 
 seizure on process, 154. 
 
 notice to captain, 154. 
 SIvANDER, claim for within the statute, 503. 
 SOIvVENCY, burden of proving, 351. 
 SOLVENT DEBTOR, deed of trust by, 304. 
 
 assignment by, 348. 
 SOUTH CAROLINA, doctrine as to possession, 109, note. 
 
 jus disponendi, 116, note. 
 SOUTH DAKOTA, doctrine as to possession, 109, note. 
 
 jus disponendi, 116, note. 
 SPENDTHRIFT TRUSTS, 212, note. 
 STATUTE, acts authorized by, 38. 
 
 of Elizabeth, when in force, 12. 
 
 merely declaratory, 12. 
 
 liberally construed, 14. 
 STATUTORY DEFENSE, may be waived, 203. 
 STOCK, transfer of within the statute, 216, 534. 
 STOCK EXCHANGE, transfer of seat in, 215, note, 534. 
 STOCKHOLDER, see Corporation. 
 SUBSEQUENT CREDITORS, rights at common law, 289. 
 
 within the statute, 290. 
 
 intent requisite, 290. 
 
 burden of proot, 291. 
 
 badges of fraud, 291. 
 
 not mere indebtedne.ss alone, 292. 
 
 actual intent, 291. 
 
 recording (ieed, 291. 
 
 when voluntary deed valid, 294. 
 
 may impeach voluntary conveyance, 295-297. 
 
 when donor is insolvent, 295-296. 
 
684 INDEX. 
 
 [rBFBRENCES AK.B TO SECTIONS.] 
 
 SUBSEQUENT CREDITORS.— Co«/«««i?rf. 
 
 continuous indebtedness, 296. 
 
 proof of prior debts, 297. 
 
 remedies, 297. 
 
 participation by, 297. 
 
 property conveyed to use of debtor, 298. 
 
 power of disposition, 298. 
 
 power of revocation, 298. 
 
 discretion of trustee, 299. 
 
 colorable transfers, 300. 
 
 transfer for valuable consideration, 300. 
 
 change of possession, 300. 
 
 representations, 301. 
 
 when estopped, 462. 
 
 who are, 506. 
 SUPPORT, of grantor when fraudulent, 194, 199. 
 
 when full consideration paid, 199. 
 
 employment of grantor, 199. 
 ' by solvent debtor, 200. 
 SURETY, claim as within statute, 503. 
 
 liability as, good consideration, 204. 
 
 provision for in assignment, 366. 
 
 contingent liability, 366. 
 SURPI/US belongs to grantee, 477, 576, 638. 
 
 disposition of, in assignment, 371-383. 
 
 disposition of, in assignment when fraudulent, 384. 
 
 disposition of, in assignment by partners, 385. 
 
 disposition of, in assignment after payment of all, 386. 
 
 disposition of, in assignment exacting releases, 424. 
 
 may be reserved in mortgage, 192. 
 
 may not be reserved in a bill of sale, 192, note. 
 SURRENDER, of property to debtor by grantee, 448. 
 
 TAXES, claim for within statute, 503. 
 
 reinbursement of grantee for, 634. 
 TENANT, bound by landlord's transfer, 449. 
 
 can not dispute grantee's title, 449. 
 
 remission of rent to, 230. 
 
 forfeiture by, 230. 
 
INDEX. 685 
 
 [references are to sections.] 
 
 TENNESSEE, doctrine of as to possession, 109, note. 
 
 as to JUS disponendi, 116, note. 
 TEXAS, rule as to possession, 109, note. 
 
 jus disponendi, 116, note. 
 THREATS, in preference, 375. 
 TITI^E, to property fraudulently conveyed, 468. 
 
 proof of, by executive purchaser, 116, note. 
 TORT, claims for will not pass by assignment, 318. 
 
 claim for within the statute, 503. 
 TRADE MARK, will pass by assignment, 318. 
 TRANSFER, how far void, good between parties, 432. 
 
 grantor, 433. 
 
 heirs, 433. 
 
 executors, 433. 
 
 administrators, 433. 
 
 agent, 433. 
 
 grantee, 433. 
 
 vendee, 433. 
 
 parties claiming under debtor, 433. 
 
 rights of debtor under executory contract, 434. 
 
 equity will not enforce an agreement, 435. 
 
 trust in fraudulent deed, 435. 
 
 when parties not in pat i delicto, 4.36-437-438-439-440. 
 
 feme covert, 437. 
 
 tmfounded claim, 441. 
 
 correction of mistake, 442. 
 
 redemption of fraudulent mortgage, 442. 
 
 rights of grantees inter se, 443. 
 
 no action at law on note, 444-445. 
 
 bona fide holder of note, 445. 
 
 actions at law by grantee, 446. 
 
 grantee has no remedy in equity, 446. 
 
 after reconveyance, 447. 
 
 grantee cannot enforce agreement, 447. 
 
 valid against third parties, 449. 
 
 debtor's tenant, 449. 
 
 prior mortgage, 449. 
 
 grantee's tenant, 449. 
 
 bailee, 449. 
 
 purchasers from grantee, 449. 
 
686 INDEX. 
 
 [refbrbnces ake to sections.! 
 
 TEI^SFER. — Continued. 
 stockholders, 449. 
 chose in action, 449. 
 creditor must have process, 450-451 
 warrant of distress, 452. 
 attachment, 452. 
 void process, 452. 
 deed from debtor, 454. 
 ratification, 455. 
 estoppel, 450. 
 
 confirmation by creditor, 456. 
 return of benefit, 464. 
 lien of judgment, 469. 
 creditors of grantee, 470. 
 purchaser under execution, 471. 
 prior liens, 472. 
 equity of redemption, 472. 
 sale subject to transfer, 473. 
 sale by assignee, 473. 
 no levy on profits^ 475. 
 allotment of tenant, 474. 
 partition by grantee, 476. 
 defeasible estate rendered absolute, 476. 
 redemption by grantee, 477. 
 dissolution of attachment, 477. 
 purchase under execution by grantee, 477. 
 dower, 478. 
 exemption, 479. 
 rescission, 480-481- 
 rescission by administrator, 482. 
 voluntary assignee, 483. 
 mortgage debt, 484. 
 
 fraudulent transfer of equity of redemption, 484. 
 void in toto, 485. 
 fraudulent deed as mode of, 486. 
 void as to part of property, 487. 
 fraudulent stipulation, 488. 
 when one grantee is innocent, 489. 
 recovery, 490. 
 creation of an annuity, 490. 
 
INDEX. 681 
 
 [rbferencbs arb to sections.] 
 
 TRANSFER.— Continued. 
 
 refusal to take title, 490. 
 
 not in name of another, 490. 
 TRANSFERS, WHAT WITHIN THE STATUTE. 
 
 not transfer to debtor, 212. 
 
 not payment to debtor, 213. 
 
 only creditors of debtor, 214. 
 
 kind of property, 215. 
 
 seat in stock exchange, 215, note. 
 
 life insurance policy, 215, note. 
 
 expectancy, 215, note. 
 
 chose in action, 216. 
 
 purchase in the name of another, 217, 
 
 expenditures upon the land of another, 218. 
 
 power of appointment, 219. 
 
 exempt property, 220 
 
 pre-emptor's right, 221. 
 
 labor, 222, 223. 
 
 business in wife's name, 224. 
 
 wife's earnings, 226. 
 
 child's earnings, 227. 
 
 emancipation of child, 227. 
 
 every form of conveyance, 228. 
 
 forfeiture of lease, 230. 
 
 outlawry, 230. 
 
 cancellation of indebtedness, 230. 
 
 remission of rent, 230. 
 
 contract relating to land, 231. 
 
 assignment of liens, 232. 
 
 dissolution of partnership, 233. 
 
 judgment, 234. 
 
 sale under execution, 235. 
 
 purchase under execution with debtor's money, 236. 
 
 fraudulent public sale, 237. 
 TRUST, for grantor void, 191, 298, 299. 
 
 resulting, 192. 
 
 what benefits may be reserved, 193. 
 
 support of debtor, 199. 
 TRUST FUND DOCTRINE, as to corporations, 169 note. 
 
 applied to partners, 368, note. 
 
688 INDEX. 
 
 [repsrbncbs are to sections.] 
 
 TRUST, SECRET. See Secret Trust. 
 TRUSTEE. See Assignee. 
 
 sale by without possession is fraudulent, 169, 136. 
 
 grantee is, for creditors, 533, 576, 631. 
 
 u 
 
 UNDUE INFLUENCE, ground for relief, 436. 
 UNITED STATES, rule as to possession, 109, note. 
 
 jus disponendi, 116, note. 
 UNI^IQUIDATED DEBT, as consideration, 204. 
 UNI^AWFUI. CI^AIMS, 441. 
 USES, see Trusts. 
 USURY, defence of may be waived, 203. 
 
 claim for is within the statute, 503. 
 
 grantee may show that debt is barred by, 588. 
 
 VAI/IDITY. See Transfer, how far void. 
 VAI,UABI,E CONSIDERATION. See Consideration. 
 VENDEE, may leave good with vendor, 71, 137. 
 
 See also Grantee and Donee. 
 VENDOR, as vendee's agent, 128, 193, note. 
 
 when resides with vendee, 140. 
 
 possession of is a badge of fraud, 72. 
 
 but not conclusive, 73. 
 VERDICT, not conclusive as to fraud, 40. 
 VERMONT, rule as to possion, 109, note. 
 
 jus disponendi, 116, note. 
 VII/I.ENAGE, origin of, 5. 
 VIRGINIA, review of decisions as to possession, 108, 109. 
 
 rule as to possession, 109, note. 
 
 jus disponendi, 116, note. 
 VOI.UNTARY CONVEYANCES, definition of, 202, 238, 244. 
 
 intent of donor alone, 239. 
 
 participation by acceptance, 239. 
 
 fraudulent intent necessary, 240. 
 
 proof of intent, 241 . 
 
 when intent a conclusion of law, 242. 
 
 secret motives, 243. 
 
 mistake, 243-264. 
 
INDEX. 689 
 
 [rbferencbs are to sections.] 
 
 VOLUNTARY CONVEYANCES.— Contirmed. 
 
 indebtedness a badge of fraud, 247. 
 
 presumptive evidence of fraud, 247. 
 
 bnrden of proof on donee, 249. 
 
 person free from debt, 250. 
 
 by person in debt, 251, see notes. 
 
 mere indebtedness, 251, see notes. 
 
 comparative indebtedness, 248. 
 
 by insolvent, 252. 
 
 which leaves donor insolvent, 253. 
 
 insolvency not necessary, 254. 
 
 effect to defraud, 254. 
 
 solvency determined by event, 254, 261. 
 
 demands to be met, 255. 
 
 proof must be clear, 256. 
 
 such as prudent man would make, 256. 
 
 ordinary course of events, 257. 
 
 nominal assets, 257. 
 
 hazards of business, 254, note, 258-263. 
 
 property must be accessible, 259. 
 
 incumbered property, 259. 
 
 property where donor resides, 259. 
 
 different kinds of property, 260. 
 
 solvency determined by result, 254-261. 
 
 negligence of creditors, 261. 
 
 accident, 262. 
 
 improvidence, 263. 
 
 no secret trust, 245. 
 
 valid when donor has ample means, 263. 
 
 partially voluntary, 265. 
 
 when valid against subsequent creditors, 294. 
 
 void against prior is void against subsequent, 295. 
 
 continuous indebtedness, 296. 
 
 when subsequent creditors may impeach, 297. 
 
 participation by subsequent creditors, 297. 
 
 not avoided in England, 240, note. 
 
 w 
 
 WASHINGTON, rule as to possession, 109, note. 
 jus disponendi, 116, note. 
 
690 INDEX. 
 
 [rbferences are to sections.] 
 
 WEST VIRGINIA, rule as to possession, 109, note. 
 
 jus disponendi, 116, note. 
 WIFE. See Husband and Wife. 
 
 possession of, 132. 
 WII/D I/ANDS, small consideration sufficient, 190, note. 
 WISCONSIN, rule as to possession, 109, note. 
 
 rule as to. jus disponendi, 116, note. 
 WITNESS may testify to his own intent, 618. 
 
 cannot testify to intent of another, 617. 
 
 effect of mission to produce, 65. 
 WORTHINESS PROPERTY, may be good consideration, 206, 
 
 note. 
 WYOMING, rule as to possession, 109, note. 
 
 rule as to jus disponendi, 116, note. 
 
KF 153^ B9^ 1896 
 
 Author Vol. 
 
 Bump, Orlando Franklin 
 
 ™% treatise upon conveyances ^opy 
 made by debtors to defraud creditor 
 
 
 
 Date 
 
 Borrower's Name